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United States District Court, Northern District of Illinois, E.D

June 18, 1984


The opinion of the court was delivered by: Shadur, District Judge.


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 him with 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 treatment.

Illinois Tort Immunity Act

Paragraph 8-102, part of the Illinois Tort Immunity Act, states:

  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 damages,*fn3 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 first argument.

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

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