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Betty J. Demont v. Dan Bebber

May 22, 2012


The opinion of the court was delivered by: Sara Darrow United States District Judge


Tuesday, 22 May, 2012 02:11:12 PM Clerk, U.S. District Court, ILCD



In the spring of 2010, Plaintiff Betty J. DeMont ("DeMont") filed a complaint in Illinois state court against Defendant Dan Bebber ("Bebber") alleging two causes of action: (1) a constitutional violation under 42 U.S.C. § 1983 ("§ 1983") and (2) the state law claim of fraudulent misrepresentation. On March 29, 2010, Bebber removed the case to this Court pursuant to 28 U.S.C. § 1446 and 28 U.S.C. § 93. On September 15, 2011, after the completion of discovery, DeMont moved for summary judgment on both of her counts. Bebber filed a cross-motion on October 14, 2011. Both motions are presently before the Court.

For the reasons set forth below, the Court finds that qualified immunity protects Bebber from DeMont's § 1983 claim. The Court also finds that sovereign immunity bars DeMont's fraudulent misrepresentation claim. The Court therefore grants summary judgment in Bebber's favor on both counts.


Betty DeMont's husband, Dwight, was a disabled U.S. Army veteran who died in 2005 of pneumonia. Dwight DeMont's terminal pneumonia resulted at least partially from the diabetes he developed as a result of his exposure to Agent Orange in the Vietnam War. (Compl. at 1, ECF No. 1.) On February 7, 2005, about two weeks after Dwight DeMont's death, DeMont received a letter from Defendant Dan Bebber, a Veteran Service Officer ("VSO") with the Illinois Department of Veteran's Affairs ("VA") in Rock Island, Illinois. (DeMont's Mot. at 1, ECF No. 18.) The letter invited DeMont to contact the Rock Island VA office to discuss her potential entitlement to VA survivor benefits. (DeMont's Mot. Ex. 2.)

DeMont alleges that on February 10, 2005, she visited Bebber's office and presented him with a copy of her husband's death certificate. (Compl. at 2.) DeMont's sister, Marjorie Clevenger, claims to have accompanied DeMont to this meeting, but does not recall many details. Nevertheless, both Clevenger and DeMont assert that the office was relatively crowded and, consistent with the fact that Bebber is the only employee at the Rock Island VA office, assert that Bebber was the only one working that day. (Bebber's Resp. at 10, ECF No. 20.) For his part, Bebber has no recollection of the alleged meeting. (DeMont's Mot. at 6.)

Bebber's job duties with the VA include evaluating benefit eligibility and helping claimants maximize the amount they are entitled to receive. (Bebber's Resp. ¶ 25.) DeMont alleges that during the February 10, 2005 meeting she asked Bebber about her eligibility for survivor benefits. (DeMont's Compl. at 6.) DeMont claims that Bebber told her she was not eligible for such benefits. (DeMont's Compl. at 6.) As such, Bebber did not fill out and process a benefits application for DeMont, nor did she ask Bebber to do so. (DeMont's Mot. at 5.)

While no application was filed, DeMont was in fact eligible for survivor benefits. For a survivor to obtain benefits, it must be shown that the veteran's death was service-connected. (DeMont's Mot. at 9.) A U.S. Department of Veterans Affairs policy lists certain diseases that are presumed to be service-connected if they are developed by a Vietnam veteran exposed to Agent Orange, as Dwight DeMont was. (Id.) In this case, DeMont's entitlement to benefits arose as a result of Dwight DeMont's diabetes, which was one of the presumptive diseases enumerated in the Department of Veterans Affairs policy. (Id.)

DeMont learned of her entitlement to survivor benefits due to Dwight DeMont's diabetes in the spring of 2008. (Compl. ¶ 8.) With the assistance of Bebber, DeMont applied for and received her survivor benefits at that time. (Bebber's Resp. at 25.)

DeMont now seeks to recover from Bebber the benefits she did not receive from 2005 to 2008. In support, DeMont alleges that Bebber had an affirmative duty to apply for benefits on her behalf after she inquired about her eligibility and presented him with a death certificate indicating that diabetes was a secondary cause of her husband's death. (DeMont's Mot. at 20-24.) According to DeMont, Bebber breached this alleged duty by ignoring the circumstances of Dwight DeMont's death that would indicate it was service-connected, wrongly telling her she did not qualify for survivor benefits, and by not applying for benefits on her behalf. DeMont alleges that these shortcomings amount to an intentional ...

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