ENCOMPASS INSURANCE JOHN HEALY v. STATE OF ILLINOIS (2011)

ORDER

This matter having come before the Court on Respondents Motion to Dismiss and with the Court being fully advised in the premises; it is hereby ordered:

That on or about October 28, 2008, Claimant filed a complaint in the Illinois Court of Claims seeking compensation for properly damage caused by a fallen tree. Claimant's complaint fails to provide a date when the tree allegedly fell and damaged Claimant's properly. On or about June 3, 2010, Claimant filed an amended complaint in this Court seeking $1,691.00 in damages. The subject tree allegedly fell in the southbound lane of Meyers Road approximately at the intersection with East Morris Avenue in Lombard, Illinois.

Subsequently, Claimant brought suit against the Village of Lombard in the Circuit Court of DuPage County; Encompass Insurance Company v. Village of Lombard case number 2009 SC 005613. However, Claimant voluntarily dismissed his claims against the Village of Lombard on September 8, 2009. Additionally, on February 4, 2010, the matter of Encompass v. the Village of Lombard was dismissed for want of prosecution in the DuPage County Circuit Court. Two years have passed since the accident and the statute of limitations has expired: Claimant can no longer exhaust its remedies against the Village of Lombard.

In the case of Hughes and Ocasek as Administrator of the Estate of Donna Scalflni v. The State of Illinois, 49 Ill.Ct.Cl. 56, (1997), this Court stated “Section 25 of the Court of Claims Act requires Claimants to exhaust all other remedies, whether administrative, legal, or equitable, before seeking determination of a claim by the Court of Claims, and the Claimants, by voluntarily dismissing their circuit court action for negligent maintenance of a roadway against a municipality, failed to exhaust their remedies.” Here Claimant voluntarily dismissed his claims against the Village of Lombard. Therefore, Claimant has failed to exhaust all of his remedies. This Court has previously held that it does not “seem to recognize any discretion on the part of Claimants to pick and choose whom they wish to sue.” Boe v. State, 37 Ill.Ct.Cl. 72 (1984).

In Boe, this Court quoted the holding from Lyons v. State, 34 Ill.Ct.Cl. 268, 271-72 (1981) stating:

The requirement that Claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that Claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that Claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because Claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants. We believe that the language of Section 25 of the Court of Claims Act (Ill. Rev: Stat. 1979, ch 37, par. 439.24-5) and Rule 6 of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.

Moreover, Section 790.90 of the Court of Claims Rules demands dismissal if there is not compliance with the provisions in Section 790.60 requiring exhaustion of remedies. 74 Ill.Adm. Code 790.90. The Claimant has not complied with Court of Claims Regulation Section 790.60 and Court of Claims Act Section 505/25. 74 Ill. Adm. Code 790.60 and 705 ILCS 505/25.

Based upon the foregoing, it is hereby ordered Respondents Motion to Dismiss is granted and the case dismissed in its entirety with prejudice.

BIRNBAUM, J.