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07/09/87 Jean A. Cooper, v. Bi-State Development

July 9, 1987

JEAN A. COOPER, PLAINTIFF-APPELLEE

v.

BI-STATE DEVELOPMENT AGENCY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 1288, 158 Ill. App. 3d 19, 110 Ill. Dec. 257 1987.IL.972

Appeal from the Circuit Court of St. Clair County; the Hon. John J. Hoban, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. WELCH and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Defendant, Bi-State Development Agency, appeals, pursuant to Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)), from a judgment of the circuit court of St. Clair County denying defendant's motion to reconsider its motion to dismiss plaintiff's action for personal injuries she allegedly sustained while a passenger on a bus owned and operated by defendant.

On July 5, 1984, defendant received a letter from plaintiff's attorney advising defendant that he had been retained to represent plaintiff on her claim for personal injuries resulting from an occurrence on June 26, 1984. Plaintiff's complaint was filed June 27, 1985. Defendant filed a motion to dismiss plaintiff's complaint for failure to comply with the notice requirements of section 8-102 of the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1983, ch. 85, par. 8-102). The trial court denied defendant's motion. Defendant filed a motion to reconsider which was also denied. On October 9, 1986, the trial court entered a judgment certifying the matter for interlocutory appeal pursuant to Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)). This court granted defendant's application for leave to appeal.

Defendant contends that plaintiff's attorney's letter of July 5, 1984, fails to comply with section 8-102 of the Tort Immunity Act and that the trial court erred in denying defendant's motion to dismiss. Plaintiff responds that this cause is not properly before this court because the trial court's order of October 9, 1986, does not identify the question of law involved on appeal and because the order appealed from was entered into by agreement of the parties. Alternatively, plaintiff argues that she was not required to give notice pursuant to section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8-102) because claims against public carriers are exempt from the notice requirement.

Supreme Court Rule 308(a) sets forth the requisite findings which the trial court must make to render an interlocutory order final and appealable and provides that the court shall identify the question of law involved. (87 Ill. 2d R. 308(a).) Plaintiff asserts that the failure to identify the question of law involved renders the order unappealable. The cases relied upon by plaintiff do not support this assertion. In Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App. 3d 352, 403 N.E.2d 1260, the court held that it lacked jurisdiction to consider the propriety of the trial court's denial of defendant's motion to dismiss where the court had entered findings pursuant to Supreme Court Rule 304(a) as opposed to Rule 308(a). In In re Marriage of Wass (1981), 94 Ill. App. 3d 436, 439, 419 N.E.2d 32, 34, the court held that the trial court's order denying respondent's motion to strike or dismiss was not a final appealable judgment because the court failed to make any of the requisite findings in accordance with Supreme Court Rule 308(a). Plaintiff admits that the October 9, 1984, court order states that its order denying defendant's motion to reconsider involves a question of law to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. (See 87 Ill. 2d R. 308(a).) Therefore, the instant order is clearly distinguishable from the orders involved in the cases cited by plaintiff.

On appeal, orders must be interpreted in the context of the motions which accompany them. (Inter-Insurance Exchange of the Chicago Motor Club v. State Farm Insurance Co. (1983), 113 Ill. App. 3d 157, 163, 446 N.E.2d 1224, 1228.) Defendant's motion to certify interlocutory appeal pursuant to Supreme Court Rule 308 states that "the question of whether Bi-State Development Agency received proper written notice of occurrence as required by Ill. Rev. Stat.

Plaintiff also maintains that the judgment denying defendant's motion to reconsider is not reviewable because the initial order denying defendant's motion to dismiss was entered into by agreement of the parties. An agreed order is a recordation of agreement between the parties and not a judicial determination of their rights. (In re Haber (1981), 99 Ill. App. 3d 306, 309, 425 N.E.2d 1007, 1009.) Such an order is conclusive on the parties and can be set aside by one party only under certain circumstances. (In re Haber (1981), 99 Ill. App. 3d 306, 309, 425 N.E.2d 1007, 1009.) The order of the trial court denying defendant's motion to dismiss is an interlocutory order subject to modification or vacation at any time prior to final judgment. (Weaver v. Watson (1984), 130 Ill. App. 3d 563, 569, 474 N.E.2d 759, 764.) As such, the order denying defendant's motion to dismiss does not represent a recordation of agreement between the parties. Therefore, we reject plaintiff's second contention regarding the appealability of this cause.

Defendant contends that the July 5, 1984, letter it received from plaintiff's attorney failed to set forth the essential elements of notice as required by section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8-102) and that, therefore, plaintiff's action should be dismissed with prejudice (Ill. Rev. Stat. 1983, ch. 85, par. 8-103). Plaintiff maintains that defendant's operation as a common carrier precludes it from being entitled to notice. Section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8-102) provided that, within one year from the date that the injury or cause of action was received or accrued, plaintiff must serve, either personally or by registered or certified mail, written notice on the secretary or clerk of the local public entity, 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."

We note that the section pertaining to notice has been repealed effective November 25, 1986 (Pub. Act 84-1431), and that section 8-101 has been revised to provide for a one-year statute of limitations period (Ill. Rev. Stat., 1986 Supp., ch. 85, par. 8-101). In Grady v. Bi-State Development Agency (1986), 151 Ill. App. 3d 748, 750, 502 N.E.2d 1087, 1089, we determined that defendant is a "local public entity" within the meaning of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 1-206) and, as such, is entitled to notice of injury (Ill. Rev. Stat. 1983, ch. 85, par. 8-102). Plaintiff maintains that Grady is distinguishable because the plaintiff in that cause did not file an appellee's brief advising the court that section 2-101(b) of ...


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