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12/19/95 EYVIND J. ERICKSEN v. VILLAGE WILLOW

December 19, 1995

EYVIND J. ERICKSEN, III, PLAINTIFF-APPELLANT,
v.
VILLAGE OF WILLOW SPRINGS, AN ILLINOIS MUNICIPAL CORPORATION, AND LELAND BRANNAM, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Jennifer Duncan-Brice, Judge Presiding.

The Honorable Justice Burke delivered the opinion of the court. Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court.

Plaintiff Eyvind Ericksen appeals from the orders of the circuit court of Cook County granting defendants Village of Willow Springs' and Leland Brannam's motion to dismiss plaintiff's complaint pursuant to section 2--619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 1992)) and denying plaintiff's motion for reconsideration. The trial court found that plaintiff's complaint was time-barred by a one-year statute of limitations. On appeal, plaintiff contends that: (1) the "law of the case" doctrine precluded the trial court from dismissing his complaint; and (2) his complaint was timely filed because the "discovery rule" postponed the commencement of the statute of limitations period. For the reasons set forth below, we affirm.

According to plaintiff, he was hired as an auxiliary officer by the Willow Springs Police Department (Department) in 1982 and as a full-time patrol officer in 1988. On January 12, 1992, he was instructed by his shift commander to initiate a roadblock at an accident scene. At the accident scene, plaintiff's vehicle was struck from behind by another vehicle. As a result, plaintiff suffered injuries to his back, was treated at a hospital and underwent physical therapy. Plaintiff did not return to work for six weeks following the accident. During this time plaintiff applied for and received workers' compensation benefits pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)).

Upon plaintiff's return to active duty, defendant Leland Brannam (Brannam), the Department's chief of police, accused plaintiff of exaggerating his injuries to avoid returning to work, instructed the mechanic who repaired plaintiff's patrol car to conceal the extent of the damage to the vehicle, accused plaintiff of conspiring with the Illinois State Police to falsify details of the accident, drafted reports of misconduct which were materially false and placed them in plaintiff's personnel file, told Department employees not to associate with or speak to plaintiff, and harassed plaintiff. Plaintiff further alleged that Brannam falsely communicated to defendant Village of Willow Springs' (Village) president and board of trustees that plaintiff had filed a fraudulent workers' compensation claim and should be terminated, while, at the same time, Brannam concealed evidence which would disprove this allegation.

On May 12, 1992, the Police and Fire Committee of the Village board of trustees determined that plaintiff should be terminated. On May 13, Brannam informed plaintiff that he would not be reappointed as a patrol officer. When plaintiff asked why he had been terminated, defendant Brannam stated that he was not at liberty to offer any explanation and was not able to offer anything in writing concerning the termination. On May 14, the Village board of trustees accepted the Police and Fire Committee's decision to terminate plaintiff.

In late July or early August 1992, Tom Borsilli, a Department officer, told plaintiff that he was fired because of the workers' compensation claim he had filed. Plaintiff claims that this was the first time he became aware of the reason for his termination and of Brannam's involvement in his termination.

On May 25, 1993, plaintiff filed a complaint against defendants. Count I of the complaint alleged that the Village terminated plaintiff's employment in retaliation for his workers' compensation claim. Count II alleged that Brannam had interfered with plaintiff's economic advantage.

Defendants filed a motion to dismiss pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 1992)), arguing that plaintiff had failed to file his complaint within the one-year statute of limitations mandated by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS par. 10/8--101 (West 1992)).

On October 25, 1993, at a hearing before Judge Nicholson on defendants' motion to dismiss, plaintiff argued that his complaint was timely filed pursuant to the "discovery rule" which postpones the commencement of the statute of limitations until a plaintiff knew or should have known of his or her injury and knew or should have known that the injury was wrongfully caused. Judge Nicholson treated defendants' motion to dismiss as one filed pursuant to section 2--615, as opposed to section 2--619, and granted plaintiff 21 days to amend his complaint to include allegations encompassing the discovery rule. Plaintiff filed an amended complaint, which was substantially identical to his first complaint except for the inclusion of the discovery rule allegations. Defendants then filed a motion to dismiss plaintiff's amended complaint pursuant to section 2--619, again contending that plaintiff's action was barred by the one-year statute of limitations mandated by the Tort Immunity Act.

In response to defendants' motion to dismiss, plaintiff submitted a personal affidavit. The affidavit related plaintiff's history with the Department; that he was informed by Brannam on May 13, 1992, that he would not be reappointed as a patrol officer; and that he asked Brannam why he had been terminated, to which Brannam replied that he was "not supposed to tell [plaintiff] that" and that he was not able to give plaintiff anything in writing concerning the termination. The affidavit further reflected plaintiff's conversation with Tom Borsilli, an officer of the Department, in July or early August of 1992, regarding the reason for plaintiff's termination.

Prior to a hearing on defendants' motion to dismiss, the case was reassigned to Judge Duncan-Brice. Judge Duncan-Brice determined that plaintiff's complaint was not timely filed, and granted defendants' section 2--619 motion to dismiss.

Plaintiff filed a motion to reconsider the trial court's dismissal of his amended complaint, arguing that the determination of when plaintiff knew or should have known of his injury was a question of fact for ...


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