United States: Illinois Appellate Court Expands PSEBA Exposure For Illinois Local Governments

Peter Friedman is a Partner in the Chicago office

HIGHLIGHTS:

  • On Tuesday, Feb. 6, 2018, the Illinois First District Appellate Court, in a 2-1 decision, greatly expanded the "unlawful act" trigger for eligibility for lifetime healthcare benefits under the Public Safety Employee Benefits Act (PSEBA).
  • The appellate court majority imposed municipal PSEBA liability for an injury occurring not as a direct result of the unlawful act itself, but instead during the subsequent investigation after the unlawful act (which was not a criminal act) was over.
  • The decision issued is now an official written decision of the Illinois Appellate Court and, unless reversed on appeal, controlling authority on what triggers PSEBA liability under the "unlawful act" scenario.

The Illinois First District Appellate Court on Feb. 6, 2018, in a split 2-1 decision, imposed municipal liability for payment of lifetime healthcare benefits under the Public Safety Employee Benefits Act, 820 ILCS 320/1 et seq. (PSEBA), to a public safety employee purportedly injured "as the result of . . . an unlawful act perpetrated by another." To do so, the appellate court majority greatly expands PSEBA's "unlawful act" trigger to include an injury occurring not as a direct result of the unlawful act itself, but instead during the subsequent investigation after the unlawful act (which was not a criminal act) was over.

The Background

The facts of this case are simple. A city of Des Plaines police officer stopped a semitractor-trailer truck with five axles because the officer observed that the truck had compressed tires and slowly accelerated from a stopped position. The officer correctly suspected that the truck was overweight. The officer directed the operator of the truck to drive to a nearby weigh station. The scale at the station revealed that the truck was overweight in violation of the Illinois Vehicle Code, 625 ILCS 5/15-111, governing wheel and axle loads and gross weights. The truck driver did not dispute the violation.

A violation of the weight requirements of the Illinois Vehicle Code is not dependent on the type of load carried by the truck, and the citation issued for the violation does not require or contain any information about the load. Nevertheless, after determining that the truck was overweight the officer asked the driver what type of load he was carrying. The driver told the officer that he was hauling concrete. The police officer then decided to personally inspect the load in order to complete some paperwork that the city utilized but that was not required for issuance of a citation. To make his inspection, the officer climbed the metal ladder attached to the front of the trailer in order to look at the load. When he stepped onto the last rung of the ladder with his left leg, he felt his left knee "pop."

The officer filed for and received a line-of-duty disability pension based on the injury to his knee. He then filed an application for PSEBA benefits with the city. The city acknowledged that the officer had suffered a "catastrophic injury" under Section 10(a) of PSEBA because he had received a line-of-duty disability pension. However, the city denied the PSEBA application because it determined that his injury did not occur during fresh pursuit, during an emergency, from an unlawful act of another or during the investigation of a criminal act.

The officer filed a complaint in Cook County Circuit Court seeking a declaratory judgment that he was entitled to PSEBA benefits. The parties filed cross motions for summary judgment and the trial court granted the officer's motion and denied the city's. The city appealed.

The appellate court ignored some of these important facts.

Majority Appellate Court Decision

The majority appellate court opinion found that the officer's injury "was indisputably a clear consequence and effect of [the truck driver's] unlawful act of driving his truck in contravention of the Illinois Vehicle Code and occurred because of [the truck driver's] unlawful conduct" and therefore the injury was "the result of" an "unlawful act perpetrated by another" within the meaning of PSEBA. There are two concerning aspects of this decision.

First, in reaching its decision, the majority appellate court opinion seems to have ignored the governing rule of statutory construction as applied to PSEBA. The Illinois Supreme Court has held repeatedly that a statute creating new liability in derogation of common law must be strictly construed in favor of persons sought to be subject to its operation and that these statutes must not be extended beyond their terms. Schultz v. Performance Lighting, 2013 IL 115738, ¶ 12, citing Nowak v. City of Country Club Hills, 2011 IL 111838, ¶¶ 19, 37. The Illinois Supreme Court made plain in Nowak that PSEBA creates new liability in derogation of common law, and thus its provisions must be strictly construed in favor of the municipality subject to its operation:

There is no question that, when Section 10(a) was enacted in 1997, it created a new liability that was unknown at common law. Indeed, there is no common law right to employer-provided health insurance at all, let alone fully subsidized employer-provided health insurance, as Section 10(a) mandates. Consequently, this court's obligation under well-settled principles of statutory construction is to construe that mandate strictly and in favor of the party subject to its operation.

2011 WL 111838 at ¶19

The majority appellate court opinion does not acknowledge or apply the Nowak rules of statutory construction.

Second, the majority appellate court decision seems to have misinterpreted the explicit language of the PSEBA statute. The two ingredients necessary for lifetime health insurance benefits under PSEBA are familiar: an eligible employee must sustain a "catastrophic injury," Nowak at ¶ 12, and that injury must have resulted from one of these four scenarios: "(1) the employee's response to fresh pursuit, (2) the employee's response to what is reasonably believed to be an emergency, (3) an unlawful act perpetrated by another, or (4) during the investigation of a criminal act." 820 ILCS 320/10.

The majority appellate court decision did not treat each element individually, and thus did not recognize that the triggers in the scenarios differ substantively from each other. The trigger for the "fresh pursuit" element is that the officer is injured while responding to the fresh pursuit. The trigger for the "emergency" element is that the officer or firefighter is injured while responding to an emergency. The trigger for the "criminal act" element is that the employee is injured while investigating that criminal act. The unique trigger for the "unlawful act" element is that the employee's injury occurred "as the result of . . . an unlawful act perpetrated by another." The Illinois General Assembly intended the triggers for fresh pursuit (response), emergencies (response) and criminal investigations (during) to include involvement in the action and surrounding circumstances and activities. PSEBA's trigger for an unlawful act is different from the other triggers: "[T]he injury or death must have occurred as the result of . . . an unlawful act perpetrated by another..." 820 ILCS 320/10(b).

In this case, the police officer was not injured as a result of the truck driver illegally operating an overweight truck. The driver perpetrated no action that injured the officer or otherwise caused his injury. The officer was injured by climbing a ladder to look at broken concrete when completing an administrative report.

The Dissenting Opinion   

Justice Mary Anne Mason's dissent argues that the majority decision is at odds with principles of statutory construction set forth by the Illinois Supreme Court and reiterates that PSEBA requires strict construction in favor of the city and will not be expanded beyond its terms. Mason further explains that the majority determined, in essence, that the police officer should have lifetime health insurance benefits under PSEBA because the officer would not have been injured "but for" the driver's unlawful act. Needless to say, "but for" is not in PSEBA. As interpreted by Mason, the officer's injury was not a result of the illegal act because the unlawful act in this case was the operation of a truck that was too heavy and therefor the officer's injury was not the legal result of that unlawful act.

Mason also describes how the majority decision unavoidably increases municipal exposure to liability for lifetime health benefits. She also writes that each of the three scenarios other than the unlawful act scenario "concern[s] activities that pose particular risks to police and other public safety employees" and "present enhanced risks for catastrophic injuries." The officer's injury, by contrast, was sustained while a truck was in a weigh station and therefore "does not fit the mold." She also illustrates that the officer, at most, could be considered to have been injured while investigating the unlawful act, but that PSEBA does not cover investigations of unlawful acts, only criminal acts.

The City's Further Appeal

The appellate court originally issued only a Rule 23 Order in this case. Rule 23 Orders are only binding on the parties and have no precedential authority on any other disputes. However, the officer's attorney filed a motion to publish the decision which the appellate court granted. The decision issued on Feb. 6, 2018, is now an official written decision of the Illinois Appellate Court and, unless reversed on appeal, controlling authority on what triggers PSEBA liability under the "unlawful act" scenario.

The city of Des Plaines has filed a petition for leave to appeal to the Illinois Supreme Court. Holland & Knight serves as General Counsel to the city and is representing the city on the appeal.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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