United States District Court, Northern District of Illinois, E.D
June 18, 1984
GARY R. FRANCESHINI, PLAINTIFF,
ALBERT BETTILYON, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Gary Franceshini ("Franceshini") sues DuPage County ("County")
Deputy Sheriff Albert Bettilyon ("Bettilyon") in one claim
(Count I) under 42 U.S.C. § 1983 ("Section 1983") and in two
pendent state law claims:
1. Count II, alleging battery and
2. Count III, charging negligence.
All three counts seek damages for injuries suffered during the
course of Bettilyon's arrest of Franceshini.
Bettilyon now moves to dismiss the non-Section 1983 claims
under Fed.R.Civ.P. ("Rule") 12(b)(6), asserting they are barred
by Franceshini's failure to give notice under Ill.Rev.Stat. ch.
85, ¶ 8-102 ("Paragraph 8-102"). For the reasons stated in this
memorandum opinion and order, ruling on that motion must be
deferred pending Franceshini's opportunity to make a further
submission as to Bettilyon's insurance coverage.
On March 26, 1982 Bettilyon arrested Franceshini and charged
driving under the influence of alcohol, disobeying a red light,
driving at an excessive rate of speed and resisting a police
officer. Before taking Franceshini into custody Bettilyon
grabbed him, threw him to the ground, handcuffed him and then
struck him in the ribs and back. Bettilyon then picked
Franceshini up off the ground and threw him against
Franceshini's car. Bettilyon drove Franceshini to the DuPage
County Jail, picked him up in a "fireman's carry" and carried
him into the jail and on into an elevator. Once inside the
elevator Bettilyon threw Franceshini to the floor. As a result
of Bettilyon's actions Franceshini sustained injuries,
including torn knee cartilage, and had to undergo medical
Illinois Tort Immunity Act
Paragraph 8-102, part of the Illinois Tort Immunity Act,
Within 1 year from the date that the injury or cause of action,
referred to in Sections 8-101, 8-102 and 8-103, was received or
accrued, any person who is about to commence any civil action
for damages on account of such injury against a local public
entity, or against any of its employees whose act or omission
committed while acting in the scope of his employment as such
employee caused the injury, must serve, either by personal
service or by registered or certified mail, return receipt
requested, a written notice on the Secretary of Clerk, as the
case may be, for the entity against whom or against whose
employee the action is contemplated a written statement, signed
by himself, his agent or attorney, giving in substance the
following information: the name of the person to whom the cause
of action has accrued, the name and residence of the person
injured, the date and about the hour of the accident, the place
or location where the accident occurred, the general nature of
the accident, the name and address of the attending physician,
if any, and the name and address of the treating hospital or
hospitals, if any.
If the required notice is not given, suit is barred by the
following section of the statute ("Paragraph 8-103"). Despite
the unequivocal nature of those provisions, Illinois courts
have placed a double gloss on the statutory language:
1. Either service of the statutory notice or the filing of a
lawsuit asserting the claim within the one-year period is
considered adequate notice. Padilla v. d'Avis, 580 F. Supp. 403,
409 (N.D.Ill. 1984) and cases there cited.
2. Notice is considered waived entirely within the limits of
any insurance policy issued to a municipality covering the
alleged injury.*fn2 Collins v. School District No. 189,
St. Clair County, 115 Ill. App.3d 100, 102, 70 Ill.Dec. 914,
916, 450 N.E.2d 387, 389 (5th Dist. 1983); Holda v. Kane
County, 88 Ill. App.3d 522, 528-29, 43 Ill.Dec. 552, 558,
410 N.E.2d 552, 558 (2d Dist. 1980); Beckus v. Chicago Board of
Education, 78 Ill. App.3d 558, 561, 33 Ill.Dec. 842, 845,
397 N.E.2d 175, 178 (1st Dist. 1979).
Franceshini's Complaint (Count II ¶ 5, Count III ¶ 6) alleges
DuPage County has insurance to cover his injury, triggering the
waiver of Paragraph 8-102's notice provision. In response
Bettilyon says County's insurance covers damages only in excess
of $100,000 per occurrence. Because Franceshini prays only
$50,000 in compensatory damages and $50,000 in punitive
notice is assertedly not waived.
Franceshini attempts to retort in a number of ways:
1. Whether County's insurance policy has a $100,000
deductible provision is a question of fact that cannot be
determined on the current motion.
2. In any event, the mere existence of the policy, regardless
of any limitation on coverage, creates a waiver of notice.
3. Paragraph 8-102 applies only to suits charging actions
within the scope of employment. Because intentional torts do
not fit that description, the notice provision is
4. No notice is required for suits brought only against an
employee or for suits charging intentional acts.
To deal with the first of those contentions, Bettilyon's reply
memorandum attaches an affidavit by County's insurance adjuster
stating County has no insurance covering the first $100,000 of
any judgment against it or any of its employees.
All Franceshini's latter three efforts to get out from under
Paragraph 8-102 are without merit:
1. Paragraph 9-103(c) specifically provides for the insurer's
waiver "within the limits of [the] policy. . . ."
Consequently the cases focus specifically on the type and
amount of damages the insurance policy covers. Beckus, 78
Ill. App.3d at 561, 33 Ill.Dec. at 845, 397 N.E.2d at 178
(wholly parallel to the present situation), followed in
Collins, 115 Ill.App.3d at 102, 70 Ill.Dec. at 916, 450
N.E.2d at 389. Accordingly the existence of an insurance
policy that does not cover the claimed damages does not
constitute a waiver of notice.
2. Simply because a tort is intentional, it does not
necessarily fall outside an employee's "scope of employment."
Sunseri v. Puccia, 97 Ill. App.3d 488, 493, 52 Ill.Dec. 716,
721, 422 N.E.2d 925, 930 (1st Dist. 1981); see also Mui v.
Dietz, 559 F. Supp. 485, 489-90 (N.D.Ill. 1983); Ramos v.
Armstrong, 8 Ill. App.3d 503, 506, 289 N.E.2d 709, 711 (3d
Dist. 1982). On Franceshini's own allegations, Bettilyon's
excessive use of force during the course of an arrest, though
not authorized by County, was nonetheless within the scope
of employment as the cases have defined that concept.*fn4
3. Notice is required for all actions against a public
employee, whether charging intentional or negligent conduct.
Zagar v. Health & Hospitals Governing Commission of Cook
County, 83 Ill. App.3d 894, 899, 39 Ill.Dec. 112, 116,
404 N.E.2d 496, 500 (1st Dist. 1980).
That leaves only the procedural issue posed by Franceshini's
On that score Franceshini staves off dismissal — though perhaps
only for the moment. Rule 12(b)(6) does require acceptance of
all well-pleaded allegations in the Complaint, and Franceshini
does allege the existence of insurance. Bettilyon should have
tendered the factual affidavit about limited coverage at the
outset, so Franceshini could have had the opportunity to
respond in kind.*fn5 FDIC v. Meyer, 578 F. Supp. 147,
148-49 (N.D.Ill. 1983) (Rule
12(b)(6) is to resolve questions of law, not fact). That
opportunity will be afforded now.
Bettilyon's motion is treated as one for summary judgment.
Franceshini is ordered to file any opposing affidavits dealing
with the scope of insurance coverage on or before July 2, 1984
(for which purpose Bettilyon is ordered to deliver a copy of
the existing policy to Franceshini's attorney on or before June
25), after which this Court will rule on the motion.*fn6