Champaign County Forest Preserve District v. King
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0890
Case Date: 08/14/1997
NO. 4-96-0890
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
CHAMPAIGN COUNTY FOREST PRESERVE ) Appeal from
DISTRICT, ) Circuit Court of
Plaintiff-Appellee, ) Champaign County
v. ) No. 95L1679
ROBERT KING, )
Defendant, )
and ) Honorable
INSURANCE RISK MANAGERS, LTD., ) George S. Miller,
Defendant-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE GARMAN delivered the opinion of the court:
Plaintiff Champaign County Forest Preserve District
(District), a public entity, filed a complaint in the circuit court
of Champaign County against defendants Robert King (King) and
Insurance Risk Managers, Ltd. (IRM). Plaintiff claimed it had been
overcharged for insurance premiums obtained through defendants.
IRM filed a motion to dismiss plaintiff's complaint, which the
trial court denied. IRM now brings this interlocutory appeal
pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). We are
called upon to consider the following questions certified by the
circuit court:
"1. Did the Plaintiff act in its public
capacity by purchasing liability insurance?
2. Is the Plaintiff asserting a public
right in claiming excessive billing in the
approximate amount of $20,000 per year for
insurance thus enjoying immunization from
limitation defenses?"
We answer both questions in the negative.
On November 13, 1995, plaintiff filed a 32-count
complaint against defendants, alleging breach of fiduciary duty and
breach of agency. Plaintiff claimed it was overcharged for
insurance premiums obtained through defendants from 1985 to 1992.
Plaintiff further claimed defendants failed to disclose there was
comparable coverage available at a lower cost and misled plaintiff
into believing it was receiving appropriate insurance limits and
coverage with appropriate companies at a fair cost. Plaintiff
failed to obtain service of process over King.
On December 6, 1995, IRM filed a motion to dismiss
plaintiff's complaint as being barred by the statute of limita-
tions. Attached to IRM's motion was an affidavit of T.O. Dawson,
chairman of the board and chief executive officer of IRM. Dawson
testified that he reviewed the insurance files of plaintiff and
discovered the last time a policy was sold to plaintiff was in
1989. That policy was to run for a period of three years. IRM's
motion stated there was no written contract between plaintiff and
IRM, and, therefore, the statute of limitations applicable to
plaintiff's complaint was five years. See 735 ILCS 5/13-205 (West
1994). IRM asserted that because plaintiff's complaint was not
filed until November 13, 1995, the lawsuit was barred.
Plaintiff's response to IRM's motion pointed out that it
alleged two different theories in its complaint--breach of
fiduciary duty and breach of agency. Plaintiff claimed the counts
for breach of fiduciary duty are equitable actions governed by the
doctrine of laches and that the breach of agency counts are
governed by the statute of limitations. However, plaintiff averred
that as a governmental body it is immune from the statute of
limitations and the application of the doctrine of laches.
Accompanying the response was an affidavit of John Potts, executive
director of the District. Potts testified that insurance premiums
were paid to IRM by plaintiff on an annual basis from 1985 to 1992.
IRM filed a reply, asserting that all counts of
plaintiff's complaint are subject to the five-year statute of
limitations because all counts sought money damages rather than
equitable remedies. IRM further stated that plaintiff conceded the
last time there were any negotiations between the parties was in
1989, with a three-year policy taking effect at that time.
On June 12, 1996, the trial court denied IRM's motion to
dismiss, finding that under City of Shelbyville v. Shelbyville
Restorium, Inc., 96 Ill. 2d 457, 451 N.E.2d 874 (1983), plaintiff
acted in its public capacity by purchasing liability insurance and
asserted a public right in claiming excessive billing for the
insurance. Thus, plaintiff enjoyed immunity from limitation
defenses. On June 17, 1996, IRM filed a motion to reconsider. In
the alternative, IRM requested leave to file an interlocutory
appeal pursuant to Rule 308. The court denied the motion to
reconsider but granted IRM's request for leave to file an interloc-
utory appeal and certified the questions now presented to this
court.
I
We first address the issue of whether plaintiff acted in
its public capacity by purchasing liability insurance. As a
general rule, the statute of limitations will not apply to bar a
claim by a governmental entity acting in a public capacity.
However, where the entity is acting in a private capacity, its
claim may be subject to a limitations defense. Board of Education
v. A, C & S, Inc., 131 Ill. 2d 428, 472-76, 546 N.E.2d 580, 600-02
(1989); see also Shelbyville, 96 Ill. 2d at 464-66, 451 N.E.2d at
877-78. In order to determine if a governmental activity is public
or private, courts should consider who would benefit by the
government's action and who would lose by its inaction.
Shelbyville, 96 Ill. 2d at 462, 451 N.E.2d at 877. Three factors
must be addressed: (1) the effect of the interest on the public,
(2) the obligation of the governmental unit to act on behalf of the
public, and (3) the extent to which the expenditure of public
revenues is necessitated. A, C & S, 131 Ill. 2d at 476, 546 N.E.2d
at 602; see also Shelbyville, 96 Ill. 2d at 464-65, 451 N.E.2d at
878.
As to the first factor, plaintiff asserts its purchase of
insurance directly affected the public. Plaintiff claims it owes
certain duties to the citizens of Champaign County such as
conservation, education, and recreation. In order to fulfill these
duties it was required to maintain certain staff, buildings,
grounds, properties, vehicles, tools, and equipment. Thus, it was
necessary to purchase insurance to protect its property, employees,
and citizens from loss or damage. We disagree.
In Shelbyville, a municipality filed suit against a
builder to recover money spent to complete and repair streets that
the builder failed to construct. The builder asserted the statute
of limitations as a bar to the suit. The Supreme Court of Illinois
found that construction and maintenance of city streets directly
affected the safety of the general public and, hence, the city
acted in its public capacity. Therefore, the municipality was
immune from the limitations defense. Shelbyville, 96 Ill. 2d at
463-64, 451 N.E.2d at 877-78.
A, C & S involved a claim by 34 school districts against
suppliers and distributors of asbestos-containing materials. The
districts sought recovery of costs expended for the removal or
repair of the materials found in school buildings. Defendants
asserted the statute of limitations. The Supreme Court of Illinois
found there was an effect on the general public because the school
districts were addressing a significant health concern to children
and adults using the buildings. Thus, the supreme court ruled the
cause of action was a public one and was not barred by the statute
of limitations. A, C & S, 131 Ill. 2d at 476, 546 N.E.2d at 602.
Unlike the governmental activities in Shelbyville and
A, C & S, plaintiff's purchase of liability insurance in this case
had no effect on the public at large. It did not make the public
safer, nor did it reduce the likelihood of injury on plaintiff's
property. The insurance was acquired solely for the benefit of
plaintiff, not the general public.
The second factor is whether the governmental entity was
obligated to act on behalf of the public. In Stafford v. Bowling,
85 Ill. App. 3d 978, 407 N.E.2d 771 (1980), the court addressed
whether the Department of Labor (Department) was under a duty to
provide assistance to employees in the collection of wages from
their employers. While the Wage Payment and Collection Act (Ill.
Rev. Stat. 1977, ch. 48, par. 39m-1 et seq.) provided several
different methods by which the Department could assist employees,
it granted the Department discretion to choose which method, if
any, it should use. Thus, the court held that although governmen-
tal assistance was authorized, it was not required. Stafford, 85
Ill. App. 3d at 982, 407 N.E.2d at 775.
Similarly, under section 22 of the Downstate Forest
Preserve District Act (Act) (70 ILCS 805/22 (West 1994)), each
forest preserve district is required to indemnify and protect its
commissioners and employees against civil rights damage claims and
suits, constitutional rights damage claims and suits, death and
bodily injury claims and suits, and property damage claims and
suits. However, there is no provision of the Act that requires a
forest preserve district to purchase insurance. The Act permits
participation by forest preserve districts in intergovernmental
risk management associations or self-insurance pools. 70 ILCS
805/8b (West 1994). Under section 9-103 of the Local Governmental
and Governmental Employees Tort Immunity Act (745 ILCS 10/9-103
(West 1994)), a forest preserve district may also elect to purchase
insurance or become self-insured. Thus, there were several
alternatives plaintiff could have chosen as protection against
claims and suits. Accordingly, although plaintiff was authorized
to purchase insurance, it was not required to do so.
Regarding the third factor, the extent to which public
funds were expended, we note the fact that public funds were used
to purchase insurance does not necessarily render it a public act.
Otherwise, any use of public funds would always be considered a
public act.
In Shelbyville, the expenditure was the cost of street
construction and repair. In A, C & S, the school districts were
required to expend large sums of money to remove the asbestos-
containing materials. In both cases, the court focused upon the
amount of money that was needed and the burden placed on the public
treasury. In this case, plaintiff alleges it overpaid its
insurance premiums by approximately $20,000 annually. However,
there is no evidence indicating the total amount of money plaintiff
paid for the insurance. Further, there is no evidence as to
plaintiff's overall budget and whether the alleged overpayment
amounted to a significant portion of the budget. Without such
evidence, we are unable to determine the magnitude of the burden
placed upon the public treasury.
Based upon our consideration of these factors, we find
plaintiff's purchase of insurance was not a public act. This
conclusion is further supported by the recent supreme court opinion
in In re Chicago Flood Litigation, 176 Ill. 2d 179, ___ N.E.2d ___
(1997). There, the court addressed the issue of sovereign or
governmental immunity and explained the distinction between
governmental and proprietary functions. The court stated, "[i]f
the duty or act involves the general public benefit, rather than a
corporate or business undertaking for the municipality's corporate
benefit, then the function is governmental." Chicago Flood
Litigation, 176 Ill. 2d at 191, ___ N.E.2d at ___. We believe this
reasoning is applicable here. In this case, plaintiff's decision
to purchase insurance can only be characterized as a corporate or
business undertaking for its own benefit, rather than for the
benefit of the general public. Therefore, it would be considered
a private act, rather than a public act.
II
We next address whether plaintiff asserted a public right
in filing a lawsuit against defendants for excessive insurance
premiums. Whether the statute of limitations is applicable to a
governmental entity requires consideration of the right that the
entity seeks to assert, namely, whether it is a right belonging to
the general public or belonging only to the government or some
small, distinct subsection of the public at large. Shelbyville, 96
Ill. 2d at 462, 451 N.E.2d at 876-77; People ex rel. Department of
Transportation v. Molter, 133 Ill. App. 3d 164, 165, 478 N.E.2d
1102, 1104 (1985).
Plaintiff claims the right to assert an action against
IRM for excessive premiums is a public right. According to
plaintiff, the excessive premiums paid to IRM resulted in less tax
revenue available for its other operations and obligations. Thus,
the public's right to benefit from this tax revenue was adversely
affected.
Plaintiff also asserts there is no requirement that the
public funds expended must amount to a significant portion of
plaintiff's budget. In Molter, the State filed an action against
the defendant to recover $1,943 for repairs to a light pole and
guardrail. The court noted it should look to the nature of the
damage rather than the amount in determining whether the right
being asserted is public or private. Molter, 133 Ill. App. 3d at
166, 478 N.E.2d at 1104. Plaintiff maintains in the instant case
that the nature of the damage is a loss of public tax revenue.
Hence, the lawsuit necessarily involves a public right.
We agree this case involves a loss of public tax revenue.
However, a consideration of the nature of the damage should address
more than simply the source of the funds expended. Any lawsuit
filed by a public entity seeking recovery of funds would likely
involve the loss of public tax revenue. Rather, courts should also
consider the reasons behind the expenditure of funds in determining
the nature of the damage.
Molter and Shelbyville both involved lawsuits to recover
money spent on road maintenance. Clearly, both cases involved the
loss of public tax revenue. In addition, the expenditure of funds
related to overall public safety on the roadways. Therefore, the
rights being asserted were considered public. Similarly, in
A, C & S, the school districts filed a lawsuit for the cost of
removing asbestos-containing materials from their schools. Again,
the loss of public tax revenue was at issue. Furthermore, the
expenditure of funds addressed a significant public health concern.
As a result, the rights being asserted by the school districts were
viewed as public.
In the present case, although plaintiff's lawsuit seeks
to recover for the loss of public tax revenue, those funds were not
applied toward any public service. The purchase of insurance and
the alleged excessive premiums had no effect on the general public.
The insurance did not improve the overall safety of the public, nor
did it reduce any accidents on plaintiff's property. We hold that
plaintiff's purchase of insurance was no different than that of a
private citizen. Accordingly, we find plaintiff's lawsuit against
defendants for the recovery of excessive insurance premiums to be
an exercise of a private right, rather than a public right.
III
For the foregoing reasons, we answer both questions in
the negative.
Questions answered.
McCULLOUGH and COOK, JJ., concur.
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