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Gillespie v. City of Maroa

OPINION FILED MARCH 11, 1982.

DAN E. GILLESPIE, PLAINTIFF-APPELLEE,

v.

THE CITY OF MAROA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. SCOTT B. DIAMOND, Judge, presiding. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Arrest by city police officer for disorderly conduct — no charges filed — City and officer sued for unlawful arrest — out of court settlement between arrestee and officer — suit against officer dismissed with prejudice.

Must the City now indemnify the officer for the amount of the settlement?

No.

We reverse.

On September 16, 1973, plaintiff was employed by the City of Maroa as a police officer. While on routine patrol, he stopped a vehicle driven by Julian T. Liming for two minor traffic violations. Liming became belligerent and abusive and was arrested by plaintiff on charges of disorderly conduct. The Macon County State's Attorney did not file any charges against Liming as a result of this incident. Liming subsequently sued both plaintiff and defendant for unlawful arrest. Initially, both parties were represented by the same law firm and defendant thus had actual notice of the pendency of the lawsuit against plaintiff. Plaintiff did not, however, provide defendant with a separate written notice of Liming's lawsuit against him. Eventually, Liming and plaintiff effected an out-of-court settlement of their dispute. Under terms of the settlement agreement, plaintiff paid Liming $500 and Liming executed a release in plaintiff's favor. The release provided, inter alia, that Liming would direct his attorney to move for dismissal with prejudice of his lawsuit against plaintiff. On March 19, 1981, plaintiff filed suit in the small claims division of the Macon County circuit court, seeking indemnification from the City of Maroa for the amount of the settlement. Following a bench trial, judgment was entered in favor of plaintiff in the amount of $500. Defendant appeals from this judgment.

• 1 At the outset, we note that plaintiff failed to file a brief in this appeal. This does not, however, require pro forma reversal of the trial court's judgment, and since we are confronted with a relatively simple record, we may decide the merits of this appeal. See People v. Athey (1976), 43 Ill. App.3d 261, 356 N.E.2d 1332.

I

Defendant initially contends that plaintiff's failure to give separate written notice of the pendency of Liming's lawsuit against him bars plaintiff's claim for indemnity. At issue here is the interpretation to be accorded the notice requirement of section 1-4-6 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1-4-6). Section 1-4-6 reads in pertinent part as follows:

"In case any injury to the person or property of another is caused by a member of the police department of a municipality * * *, the municipality * * * shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the policeman * * *. Any policeman, or any person who, at the time of the performing such an act complained of, was a policeman, who is made a party defendant to any such action shall, within 10 days of service of process upon him, notify the municipality by whom he is or was employed, of the fact that the action has been instituted, and that he has been made a party defendant to the same. Such notice shall be in writing, and shall be filed in the office of the city attorney or corporation counsel, if there is a city attorney or corporation counsel, and also in the office of the municipal clerk, either by himself, his agent, or attorney. The notice shall state in substance, that such policeman, (naming him), has been served with process and made a party defendant to an action wherein it is claimed that a person has suffered injury to his person or property caused by such policeman; stating the title and number of the case; the court wherein the same is pending; and the date such policeman was served with process in such action, and made a party defendant thereto. * * * The duty of the city to indemnify any such policeman for any judgment recovered against him shall be conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described." (Ill. Rev. Stat. 1979, ch. 24, par. 1-4-6.)

Defendant admits that it had actual knowledge of Liming's lawsuit against plaintiff. The issue, thus, is whether actual notice of the pendency of the lawsuit negates the necessity of compliance with the notice requirements of section 1-4-6 of the Municipal Code in order for a policeman to obtain indemnification pursuant to that section.

• 2 We have discovered no authority as to the effect to be accorded section 1-4-6 of the Municipal Code in this type of situation. The public policy considerations underlying the construction which has been given the notice requirement of section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 8-102), do, however, provide us with some guidance as to the resolution of this issue. Section 8-102 prescribes the type of notice which is to be given by one who commences a civil action for damages against a local public entity or its employees. Formerly, the filing of a lawsuit within the period prescribed by section 8-102 for giving notice did not constitute compliance with the notice requirement. (Erford v. City of Peoria (1907), 229 Ill. 546, 82 N.E. 374.) This interpretation of section 8-102 was explicitly overruled, however, in Dunbar v. Reiser (1976), 64 Ill.2d 230, 356 N.E.2d 89. There, no notice was served on the city within the six-month period which section 8-102 then prescribed, but suit was filed against the municipality within one month after the incident complained of. The court held that since under these circumstances, modern discovery procedures afforded the municipality the opportunity to obtain even more information about the incident than could be obtained from a notice which completely conformed to the requirements of section 8-102, the filing of suit within the notice period satisfied the notice requirements of that statute. The same considerations which caused the Dunbar court to hold that the filing of suit within the notice period satisfies the notice requirement of the Tort Immunity Act, necessitate the formulation and application of a similar rule in regard to the type of situation with which we are confronted here. The clear purpose of statutory notice provisions involving actions against governmental entities is to encourage early investigation into claims asserted against the entity, at a time when the matter is still fresh, witnesses are available, and conditions have not materially changed. (Saragusa v. City of Chicago (1976), 63 Ill.2d 288, 348 N.E.2d 176.) In the present case, the City of Maroa, having been sued jointly with plaintiff, and having been represented for a time by the same law firm as plaintiff, obviously had knowledge of the pendency of Liming's lawsuit against plaintiff, and itself being a defendant in the action, had as ample an opportunity to investigate the basis of Liming's claim against plaintiff as it would have had if plaintiff had fully complied with the notice requirements of section 1-4-6 of the Municipal Code. Therefore, we conclude that under the circumstances involved here, plaintiff's failure to comply with the notice requirements of section 1-4-6 of the Municipal Code is not in itself a bar to his claim for indemnity.

II

Defendant next argues that the word "judgment," as used in section 1-4-6 of the Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1-4-6), does not encompass an amount paid pursuant to a settlement agreement which results in dismissal with prejudice of the underlying lawsuit. In support of its argument, defendant relies on section 2-302 of the Tort Immunity Act which provides in pertinent part as follows:

"If any claim or action is instituted against an employee or former employee of a local public entity based on an injury allegedly arising out of an act or omission occurring within the scope of his employment as such employee, ...


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