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FRANCESHINI v. BETTILYON

June 18, 1984

GARY R. FRANCESHINI, PLAINTIFF,
v.
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.

Facts*fn1

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 ...

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