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Wilczak v. Lombard

Court of Appeals of Illinois, Second District

December 5, 2016

KENNETH WILCZAK, Plaintiff-Appellant,
v.
THE VILLAGE OF LOMBARD, Defendant-Appellee.

         Appeal from the Circuit Court of Du Page County, No. 13-MR-1316; the Hon. Bonnie M. Wheaton, Judge, presiding.

         Affirmed.

          Jerome F. Marconi, of Law Offices of Jerome F. Marconi, of Chicago, for appellant.

          Erin K. Lavery and Jason A. Guisinger, of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee.

          SCHOSTOK PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.

          OPINION

          SCHOSTOK PRESIDING JUSTICE.

         ¶ 1 The plaintiff, Kenneth Wilczak, appeals from the trial court's order granting summary judgment in favor of the defendant, the Village of Lombard, on the plaintiff's claim for health insurance benefits pursuant to the Public Safety Employee Benefits Act (Act) (820 ILCS 320/10(b) (West 2010)). On appeal, the plaintiff, a firefighter employed by the defendant, argues that he was injured in the line of duty during his response to what was reasonably believed to be an emergency and that he is thus entitled to benefits under the Act. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 On August 15, 2009, the plaintiff injured his shoulder when he was lifting a disabled citizen, who suffered from multiple sclerosis, from the floor to the bed. The record indicates that the plaintiff immediately began treatment for his shoulder injury but developed complications from his injury and was unable to continue working. On April 16, 2010, the plaintiff filed an application for a line-of-duty disability pension pursuant to section 4-110 of the Illinois Pension Code (40 ILCS 5/4-110 (West 2010)). On June 14, 2012, the board of trustees of the Lombard Firefighter's Pension Fund granted the plaintiff's application for a line-of-duty disability pension. ¶ 4 On August 3, 2012, the plaintiff petitioned the defendant for health insurance benefits under section 10 of the Act, which provides in relevant part:

"(a) An employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer's health insurance plan for the injured employee, the injured employee's spouse, and for each dependent child of the injured employee ***.
* * *
(b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of the officer's response to fresh pursuit, the officer or firefighter's response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act. Nothing in this Section shall be construed to limit health insurance coverage or pension benefits for which the officer, firefighter, spouse, or dependent children may otherwise be eligible." 820 ILCS 320/10(a), (b) (West 2010).
The defendant declined the plaintiff's request for benefits. On December 10, 2013, the plaintiff filed, in the circuit court of Du Page County, an amended complaint for a declaratory judgment that he was entitled to the benefits. The plaintiff argued that he was entitled to the benefits because his injury occurred in response to what he reasonably believed was an emergency. The parties filed cross-motions for summary judgment.

         ¶ 5 Attached to the plaintiff's motion for summary judgment were the discovery depositions of the plaintiff and another firefighter, Tony Sally. The plaintiff testified that he was a firefighter/paramedic and had been employed by the defendant for 24 years. On August 15, 2009, he was on duty when he received a dispatch to an address in Lombard. He proceeded to that address in an ambulance with Sally. The plaintiff testified that he had been dispatched to that address on at least 10 previous occasions. In the ambulance, he told Sally that, when he last was called to that address, he had to call for additional firefighters to help because the disabled citizen was stuck in the bathroom, between the toilet and the vanity. On the day at issue, when the plaintiff and Sally proceeded to the address, the lights and sirens were activated ...


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