Court of Appeals of Illinois, First District, Second Division
PAMELA REYNOLDS, as Special Administrator of the Estate of Doris Faust, Deceased, Plaintiff-Appellant,
THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee.
Although plaintiff’s deceased was notified prior to her death that she was entitled to an increase in the annuity she had been receiving as the widow of a fireman, she never completed the paperwork necessary to effect the increase, and the assignment sections of the Illinois Pension Code and the firemen’s pension fund prohibited the assignment of any potential lawsuit to exercise the rights the deceased failed to pursue during her lifetime; therefore, the claim for increased benefits abated upon her death.
Appeal from the Circuit Court of Cook County, No. 10-CH-46510; Review Hon. Michael B. Hyman, Judge, presiding.
Donald T. Bertucci, Ltd., of Chicago (Donald T. Bertucci, of counsel), for Appeal appellant.
Burke, Burns & Pinelli, Ltd., of Chicago (Mary Patricia Burns and Vincent D. Pinelli, of counsel), for appellee.
Panel JUSTICE QUINN delivered the judgment of the court, with opinion. Presiding Justice Harris and Justice Simon concurred in the judgment and opinion.
¶ 1 I. INTRODUCTION
¶ 2 The administrator of the estate of a decedent who was receiving a widow's annuity sued the Retirement Board of the Firemen's Annuity and Pension Benefit Fund of Chicago (the Board) on behalf of the estate claiming that the decedent was entitled to a larger pension and sought to recoup the difference between what the decedent received and what the administrator alleged decedent was entitled to for the benefit of the heirs of the estate. The circuit court rejected the administrator's complaint and ruled that any right to seek payments of additional amounts under the pension fund in question abated when the widow/annuitant died and her estate could not be assigned those rights and had no survival rights to pursue the action. This timely appeal followed.
¶ 3 II. BACKGROUND
¶ 4 Harry Faust, born November 22, 1916, and Doris Faust, born January 25, 1922, were married on January 3, 1949. Two years later, in 1951, Henry Faust began his employment with the Chicago fire department as a fireman. He also was a member of the Firemen's Annuity and Benefit Fund of the Illinois Pension Code (the Firemen's Pension Fund). 40 ILCS 5/6-101 to 6-226 (West 2010). In 1959 and 1960, Harry Faust suffered smoke inhalation and in 1964 he injured both knees while on the job. In 1970, he applied for a duty disability pension relating to those injuries. His application was approved on May 15, 1970 and he began receiving a duty disability pension subject to annual medical reexamination. He was never declared permanently disabled. Harry Faust received duty disability benefits for almost seven years, until April 6, 1977, when he died at age 60 from causes that were not related to his on-the-job injuries.
¶ 5 His widow, Doris Faust, on her own behalf and on behalf of the two children from their marriage, applied for and was granted a widow's annuity on April 29, 1977. On September 29, 1979, Doris Faust married Siegmund Daum. This event terminated her right to receive a widow's annuity under the Firemen's Pension Fund as it existed in 1979 (Ill. Rev. Stat. 1991, ch. 108½, ¶ 6-143 (amended by Pub. Act 89-136, § 15 (eff. July 14, 1995))). Doris Faust Daum's remarriage to Siegmund Daum ended in divorce in 1981.
¶ 6 Approximately 14 years after Doris Faust's divorce, in 1995, the Illinois legislature amended the Firemen's Pension Fund to allow a widow who remarried, but then divorced, to apply for reinstatement of her widow's annuity from her deceased, prior husband/fireman. Id. (now 40 ILCS 5/6-143(a) (West 2010)). Because this amendment was to be applied retroactively, the Board located and notified Doris Faust of this amendment. Doris Faust applied for reinstatement and the application was granted in April 1996. Doris Faust continued to receive this widow's annuity until her death on December 25, 2009.
¶ 7 Aside from receipt of her monthly annuity, Doris Faust, on occasion sent communications to the Board. For instance both in 2002 and again, in 2003, she informed the Board of her new resident addresses.
¶ 8 By letter dated August 3, 2005, the Board sent Doris Faust a letter informing her of her right to seek a duty-related widow's annuity pursuant to this court's opinion issued in Bertucci v. Retirement Board of the Firemen's Annuity & Benefit Fund, 351 Ill.App. 3D 368 (2004).
¶ 9 The Board's letters, sent via regular and certified mail to Doris Faust both on August 3, 2005 and again on August 19, 2005, stated, in pertinent part, as follows:
"A recent decision by the State of Illinois Appellate Court held that widows of firefighters that died while in receipt of Duty Disability Benefits, whose duty related injuries, though not directly the cause of their death, were of such a nature that the firefighters were permanently prevented from subsequently resuming active service, may be entitled to receive the higher duty death annuity benefit available under ILCS 40, Act 5, Section 6-140. These Duty Death Widow Benefits are not automatic. The court requires that widows must file an application with the Board and be able to establish through medical evidence and testimony that the injury for which he was granted ...