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Cione v. Chicago Transit Authority

April 25, 2001

LAWRENCE CIONE, PLAINTIFF-APPELLANT,
v.
CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Burke

(NUNC PRO TUNC March 30, 2001)

Appeal from the Circuit Court of Cook County. Honorable John G. Laurie, Judge Presiding.

Plaintiff Lawrence Cione appeals from an order of the circuit court granting defendant Chicago Transit Authority's (CTA) motion to dismiss plaintiff's complaint with prejudice. On appeal, plaintiff contends that the trial court abused its discretion in dismissing his complaint based on its determination that his statutory notice pursuant to section 41 of the Metropolitan Transit Authority Act (Transit Act) (70 ILCS 3605/41 (West 1998)) was insufficient. Plaintiff also contends that section 41 violates the Illinois Constitution (Ill. Const. 1970, art. IV, §13) as applied and is special legislation. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

Plaintiff was injured on January 15, 1999, when a CTA bus struck him while he was entering his car. On June 3, 1999, plaintiff served a section 41 notice of claim upon the CTA in which he stated that his attending physician was the Parkview Orthopedic Group located at 7600 College Drive, Palos Hills, Illinois. On January 3, 2000, plaintiff filed a complaint against the CTA for his injuries. Thereafter, defendant filed a motion to dismiss the complaint, arguing that plaintiff's notice was defective and it failed to strictly comply with the requirements of section 41 because plaintiff listed a clinic as the attending physician, not a physician's name. After full briefing, the trial court conducted a hearing and, on March 20, 2000, it granted defendant's motion to dismiss. This appeal followed.

ANALYSIS

I. Propriety of Section 41 Notice

The first issue before this court is whether plaintiff complied with the notice provision of the Transit Act. Section 41 of the Transit Act provides:

"No civil action shall be commenced in any court against the Authority by any person for any injury to his person unless it is commenced within one year from the date that the injury was received or the cause of action accrued. Within six (6) months from the date that such an injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against the Authority for damages on account of any injury to his person shall file in the office of the secretary of the Board and also in the office of the General Counsel for the Authority either by himself, his agent, or attorney, a statement, in writing, signed by himself, his agent, or attorney, giving 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 and the name and address of the attending physician, if any. If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authority shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.

Any person who notifies the Authority that he or she was injured or has a cause of action shall be furnished a copy of Section 41 of this Act. Within 10 days after being notified in writing, the Authority shall either send a copy by certified mail to the person at his or her last known address or hand deliver a copy to the person who shall acknowledge receipt by his or her signature. When the Authority is notified later than 6 months from the date the injury occurred or the cause of action arose, the Authority is not obligated to furnish a copy of Section 41 to the person. In the event the Authority fails to furnish a copy of Section 41 as provided in this Section, any action commenced against the Authority shall not be dismissed for failure to file a written notice as provided in this Section. Compliance with this Section shall be liberally construed in favor of the person required to file a written statement." 70 ILCS 3605/41 (West 1998).

It is the plaintiff's burden to strictly comply with each element designated in section 41 and, absent such compliance, his cause of action will be dismissed. Dimeo v. Chicago Transit Authority, 311 Ill. App. 3d 152, 155, 724 N.E.2d 92 (1999); Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 136, 717 N.E.2d 451 (1999). "Notices missing even a single element are defective, as well as notices containing an incorrect element." Dimeo, 311 Ill. App. 3d at 155. A plaintiff is required to strictly comply with the requirements of section 41 even when the CTA has full knowledge or notice of the injury. Dimeo, 311 Ill. App. 3d at 155; Yokley, 307 Ill. App. 3d at 137.

Plaintiff contends that the trial court abused its discretion in dismissing his complaint, arguing that he provided complete and correct information and that all necessary elements were contained on the face of his notice. He argues that the clinic practice group, that he named as his attending physician and that provided his treatment, is the attending physician under the eyes of the law, citing to agency principles in other areas of the law, including medical malpractice actions, licensing procedures, and billing procedures. Additionally, plaintiff contends that the practice of medicine has changed since the enactment of section 41 which is something the legislature could not have foreseen. Plaintiff also argues that the CTA could easily have obtained his medical records from the clinic if it wanted to do so. Lastly, plaintiff argues that by concluding that he failed to comply with the notice requirements, the trial court placed an unfair burden on him because the statute states that "[c]compliance with this Section shall be liberally construed in favor of the person required to file a written statement." 70 ILCS 3605/41 (West 1998).

Defendant contends that the correct standard of review of the trial court's ruling is de novo. Substantively, defendant maintains that a practice group is not a substitute for naming an attending physician and the agency theory of respondent superior is irrelevant in determining the propriety of plaintiff's notice under section 41. Defendant also contends that the CTA has no duty to obtain plaintiff's records and, therefore, plaintiff's argument that it could have done so is irrelevant. Lastly, defendant argues that the "liberal construction" principle refers to whether the CTA's duty to provide a potential claimant with a copy of section 41 was triggered, not whether a plaintiff's notice was sufficient. We first observe that, contrary to plaintiff's contention, our standard of review upon a trial court's granting of a motion to dismiss is de novo. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733 (1999).

Several courts have addressed the attending physician element of section 41. In Yokley, although the more prominent issue was the fact that the plaintiff provided a nonexistent location as the accident location, the plaintiff also listed a medical center and its address as the attending physician. Yokley, 307 Ill. App. 3d at 134. In finding that the failure to name an attending physician compounded the insufficiency of the notice, the court stated that "[p]laintiff's failure to list an attending physician precluded the CTA from contacting that individual." Yokley, 307 Ill. App. 3d at 138. In Margolis v. Chicago Transit Authority, 69 Ill. App. 3d 1028, 388 N.E.2d 190 (1979), the plaintiff listed as her treating physician a doctor who had treated her for many years for a condition unrelated to the injuries she received in the accident. The court concluded that the plaintiff had failed to comply with the requirements of section 41 and that her lawsuit was properly dismissed. Margolis, 69 Ill. App. 3d at 1035. Similarly, in Thomas v. Chicago Transit Authority, 29 Ill. App. 3d 952, 331 N.E.2d 216 (1975), the plaintiff listed the wrong attending physician in his notice to the CTA. The court found that "[l]isting the wrong attending physician in the notice is tantamount to a complete omission of an essential element," and concluded that the plaintiff's notice was insufficient. Thomas, 29 Ill. App. 3d at 955. While the latter ...


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