APPEAL from the Circuit Court of Putnam County; the Hon.
CHARLES MAXON WILSON, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Plaintiff, Frank Golden, commenced this action in the circuit court of Putnam County to recover damages occasioned by the alleged negligent conduct of defendant, Gerry Holaday. The circuit court denied defendant's motion to dismiss for lack of jurisdiction and motion for rehearing and defendant perfected this interlocutory appeal.
On August 14, 1975, defendant, an employee of the Illinois Department of Mental Health and Developmental Disabilities, was returning to Peoria from Streator, Illinois, where she had been on departmental business. While it appears defendant's work required travel, her usual place of employment is the Zeller Zone Center in Peoria. The car defendant was driving was a State owned vehicle which defendant had obtained from a State motor pool adjacent to the Zeller Zone Center. While en route to Peoria, defendant was involved in a collision with two other vehicles, one of which was driven by plaintiff. On May 20, 1977, plaintiff filed a complaint in the circuit court of Putnam County which named Gerry Holaday as the sole defendant and alleged that her negligent acts and omissions were the proximate cause of the accident. Upon receiving the summons and complaint, defendant contacted both her personal insurance carrier and legal counsel for the Department.
Counsel for the insurance company and a special assistant attorney general filed motions to dismiss. The Attorney General's motion was made pursuant to a special and limited appearance and requested the circuit court to dismiss for lack of jurisdiction. In support of this motion and a later motion for rehearing, the Attorney General contended that the Illinois Court of Claims had exclusive jurisdiction over claims arising out of accidents involving employees of the State of Illinois acting within the scope of their employment. In response, plaintiff argued that while the only forum for adjudication of claims against the State of Illinois as a party defendant was in the Illinois Court of Claims, the complaint did not seek damages from the State of Illinois under respondeat superior, but sought redress only from an individual for the negligent operation of a motor vehicle. Although the court denied each of defendant's motions, it found that its order involved a question of law as to which there was a substantial difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation. Defendant was granted leave to appeal pursuant to Supreme Court Rule 308. Ill. Rev. Stat. 1977, ch. 110A, par. 308.
At the core of the present dispute are several amendments to section 35.9 of the Civil Administrative Code of Illinois. (Ill. Rev. Stat. 1977, ch. 127, par. 35.9.) In 1975, section 35.9 was amended twice, once by Public Act 79-298, effective August 4, 1975, and once by Public Act 79-352, effective August 7, 1975. The latter of these two acts provided that the State would purchase public liability insurance to cover employees driving State owned motor vehicles. Section 35.9 was amended twice more in 1976, once by Public Act 79-1331, effective July 28, 1976, and once by Public Act 79-1454, effective August 31, 1976.
Public Act 79-1331 added a new subsection (m) which provides:
"(m) Any plan for public liability self-insurance implemented under this Section shall provide that (1) the Department of Finance * * * shall attempt to settle and may settle any public liability claim filed against a State employee on the basis of an occurrence in the course of his State employment * * *. Whenever and to the extent that a State employee operates a motor vehicle or engages in other activity covered by self-insurance under this Section, the State of Illinois shall defend, indemnify and hold harmless such employee against any claim in tort filed against such employee for acts or omissions within the scope of his employment in any proper judicial forum and not settle pursuant to this subsection, provided that this obligation of the State of Illinois shall not exceed a maximum liability of $2,000,000 for any single occurrence in connection with the operation of a motor vehicle or $100,000 for any other single occurrence. Any claims against the State of Illinois as a self-insuror which are not settled pursuant to this subsection shall be heard and determined by the Court of Claims, and may not be filed or adjudicated in any other forum."
Public Act 79-1454 seems to have been designed to eliminate certain inconsistencies between the two 1975 amendments, but did not contain the subsection (m) referred to above, even though the effective date of Public Act 79-1454 is after the effective date of Public Act 79-1331. This inconsistency between the two 1976 amendatory acts was apparently anticipated by the legislature because Public Act 79-1454 contains the following proviso:
"This revisory bill does not include any changes made necessary by the enactment of any Act of the 79th General Assembly after Public Act 79-1192."
The most recent amendment to section 35.9, Public Act 80-57, became effective July 1, 1977. The content of subsection (m) in this latest amendatory act conforms substantially to the content of its predecessors, with minor changes as to what department is responsible for implementing section 35.9. While subsection (m) of section 35.9 was not in effect when the plaintiff's cause of action arose, it was effective when plaintiff filed his complaint in the circuit court of Putnam County.
Defendant argues that section 35.9, in conjunction with the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 127, par. 801 et seq.) requires that unsettled claims such as those in this case must be resolved in the Illinois Court of Claims. While subsection (m) was not in effect when plaintiff's cause of action arose, defendant claims that because the subsection is procedural, it should be given retroactive application. In response, plaintiff assumes for the purpose of argument that if the instant cause of action arose subsequent to the enactment of the 1976 amendments, his claim would have to be filed in the Court of Claims. He contends, however, that the 1976 amendment, and in particular Public Act 79-1331, affect substantive rights of a litigant and should be given prospective effect only. Hence, the issue is whether subsection (m) of section 35.9 should be applied retroactively or only prospectively. In light of plaintiff's position, we find it unnecessary to express an opinion as to whether by virtue of subsection (m) the Court of Claims has sole and exclusive jurisdiction over complaints such as the one filed by plaintiff herein, but merely assume that it does. We affirm.
Before embarking on a discussion of the retroactive-prospective aspects of subsection (m), we must ascertain if prior to the enactment of subsection (m), the circuit court had jurisdiction to hear complaints such as plaintiff's. Unless such jurisdiction did exist, an examination of the merits of defendant's claims of retroactive application is unnecessary. We believe that such jurisdiction did exist.
Prior to the abolition of governmental immunity by the 1970 Illinois Constitution, a governmental employee was subject to suit in the circuit court for negligently driving a governmentally owned vehicle while in the course of his employment. (Pree v. Hymbaugh, 23 Ill. App.2d 211, 162 N.E.2d 297.) In Lusietto v. Kingan, 107 Ill. App.2d 239, 242, 246 N.E.2d 24, 26, the court stated:
"We believe that the law is clear that a state highway employee may be sued and held individually liable for certain negligent acts committed by him in the course of his employment. Creamer v. Rude, 37 Ill. App.2d 148, 185 N.E.2d 345. * * * In the Creamer case above cited and in the cases of Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311, and Pree v. Hymbaugh, 23 Ill. App.2d 211, 162 N.E.2d 297, * * * the defendants in each case were operating motor vehicles on the public highways in a negligent manner. What the opinions said in those cases, in effect, was that the fact of governmental employment could not be used as a shield. The duty ...