Brinegar v. Reeves

NO. 4-96-0451

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JERRY L. BRINEGAR, JR., ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DEL ALLEN REEVES, ) No. 94L250
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

In May 1992, Del Allen Reeves was in a motor vehicle
accident involving Jerry L. Brinegar, Jr. At the time of the
accident, Reeves was apparently working as an employee of the
Illinois Department of Transportation (IDOT). Brinegar filed a
lawsuit against Reeves seeking damages. Since Reeves was acting
within the scope of his employment at the time of the accident,
he was entitled to representation by the Illinois Attorney
General and was also entitled to indemnification for any judg-
ment. See Ill. Rev. Stat. 1991, ch. 127, par. 63b4(k) (now 20
ILCS 405/64.1(k) (West 1994)). Following a bench trial, the
court entered a judgment in favor of Brinegar. The court found
Reeves liable for $1,159.60 for past medical expenses and $1,000
for pain and suffering, for a total of $2,159.60 plus costs.
Although the record in this case contains many gaps, it
appears that Brinegar then filed a citation against Reeves
personally to discover Reeves' assets, and Reeves (through hisattorney, the Attorney General) filed a motion to quash the cita-
tion. The Attorney General argued the citation should be quashed
because the Illinois Department of Central Management Services
had requested IDOT to process the judgment due Brinegar. In the
course of processing, the Illinois Department of Public Aid
(Department) advised the Office of the Comptroller (Comptroller)
that Brinegar owed money for delinquent child support. The
Comptroller, pursuant to sections 10.05 and 10.05a of the State
Comptroller Act (Act) (15 ILCS 405/10.05, 10.05a (West 1994),
withheld payment of the judgment and notified Brinegar that he
had 30 days to file a protest.
The record is wholly silent as to whether Brinegar
filed a protest with the Comptroller. Regardless, the state
argued there are three possible outcomes: (1) Brinegar did not
protest the Department's claim to the money and the Comptroller
paid the amount of judgment toward Brinegar's child support debt;
(2) Brinegar filed an unsuccessful protest with the same result;
or (3) Brinegar filed a successful or partially successful
protest and the Comptroller paid the amount of the judgment or a
portion thereof to Brinegar. (There is another possibility:
that the Comptroller did not do anything.) Regardless of the
outcome, the state argued that sections 10.05 and 10.05a of the
Act created a statutory lien upon the judgment against Reeves and
that the judgment had been satisfied by application of the
payment toward Brinegar's debt with the Department. The trial
court disagreed with the state's analysis, denied Reeves' motion
to quash the citation, and ordered Reeves to pay the judgment.
That decision was stayed pending appeal.
We first consider a jurisdictional argument. The
Attorney General does not raise this argument, but we have an
independent duty to consider matters going to our jurisdiction.
An action brought nominally against a state employee in his
individual capacity will be found to be a claim against the state
where a judgment for the plaintiff could operate to control the
actions of the state or subject it to liability. Currie v. Lao,
148 Ill. 2d 151, 158, 592 N.E.2d 977, 980 (1992). Claims against
the state must be brought in the Court of Claims and cannot be
brought in the circuit court. 745 ILCS 5/1 (West 1994). This
court held, in Oppe v. State of Missouri, 171 Ill. App. 3d 491,
493-94, 525 N.E.2d 1189, 1191 (1988), that where the state is re-
quired to indemnify state employees the action is one against the
state and must be brought in the Court of Claims. Oppe has been
criticized on the basis it requires plaintiffs to sue in the
Court of Claims whenever a state employee has a right to indemni-
ty, but state employees may not be sued in the Court of Claims,
with the result that the state will never have to indemnify its
employees. K. Beyler & P. Kelley, Jurisdiction and Immunity in
Suits Against State Employees After Healy v. Vaupel, 79 Ill. B.J.
612, 617 (1991). The first district has noted the result in Oppe
is correct on its facts but concluded that the language of the
indemnification statute does not, standing alone, show a legisla-
tive intent that indemnification cases not be tried in the Court
of Claims. Janes v. Albergo, 254 Ill. App. 3d 951, 966, 626 N.E.2d 1127, 1137 (1993); Ill. Rev. Stat. 1991, ch. 127, par.
1302(d) (reference to jury trials, which are not provided for in
Court of Claims cases). We agree with Janes and conclude the
circuit court had jurisdiction in the present case.
I. ANALYSIS
Reeves is the nominal appellant, but it is clear that
the real party in interest is the state. The state argues that
the trial court was in error. In pertinent part, section 10.05
of the Act provides:
"Whenever any person shall be entitled
to a warrant or other payment from the trea-
sury or other funds held by the State Trea-
surer, on any account, against whom there
shall be any account or claim in favor of the
State, then due and payable, the Comptroller,
upon notification thereof, shall ascertain
the amount due and payable to the State, as
aforesaid, and draw a warrant on the treasury
or on [the] other funds held by the State
Treasurer, stating the amount for which the
party was entitled to a warrant or other
payment, the amount deducted therefrom, and
on what account, and directing the payment of
the balance; which warrant or payment as so
drawn shall be entered on the books of the
Treasurer, and such balance only shall be
paid. The Comptroller may deduct the entire
amount due and payable to the State or may
deduct a portion of the amount due and pay-
able to the State in accordance with the
request of the notifying agency." 15 ILCS
405/10.05 (West 1994).
Section 10.05a of the Act allows the Department to direct the
Comptroller to deduct past-due child support from a warrant or
payment described in section 10.05 of the Act, and specifically
provides that "[s]uch deduction shall have priority over any
garnishment except that for payment of state or federal taxes."
15 ILCS 405/10.05a (West 1994).
In interpreting an earlier version of section 10.05 of
the Act, the Court of Claims noted that the statute simply means:
"[W]hen the [Comptroller] finds the
claimant to whom a warrant is payable owes
the State on any claim whatever, that a bal-
ance shall be struck, claimant required to
pay the claim, and the balance if any, is to
be remitted to claimant by warrant on the
treasurer by the balance so found to be due."
Bunn Capitol Grocery Co. v. State, 12 Ill.
Ct. Cl. 380, 383-84 (1943).
The state argues that, pursuant to sections 10.05 and 10.05a, the
Comptroller has satisfied the judgment against Reeves by applying
money due Brinegar toward Brinegar's debt with the Department and
that Brinegar is not entitled to any recovery from Reeves. We
disagree.
This case is resolved by looking to the plain language
of the statute. The state is allowed to make a setoff pursuant
to section 10.05 of the Act when the claimant is "entitled" to a
warrant or other payment from the state. 15 ILCS 405/10.05 (West
1994). In the instant case, the state has not demonstrated that
Brinegar was entitled to a payment from the state. That the
state chooses to indemnify its employees under certain circum-
stances does not transform a suit against an individual defendant
into a suit against the state. See Janes, 254 Ill. App. 3d at
965-66, 626 N.E.2d at 1136-37; Williams v. Lane, 818 F. Supp. 1212, 1213 n.1 (N.D. Ill. 1993). Plainly put, Brinegar was
entitled to a payment from Reeves, and Reeves was the subject of
the supplementary proceeding. The form of the action controls
the outcome of this case.
The outcome of this case would have been the same had
the Department, as a judgment creditor, attempted to enforce its
judgment against Brinegar by attaching Reeves' obligation to pay
the judgment. As noted, pursuant to section 10.05a of the Act,
the Department may direct the Comptroller to deduct from a
warrant or payment the amount necessary to satisfy "past[-]due
support owed by a person on account of support action being taken
by the Department under Article X of The Illinois Public Aid Code
[(Code) (305 ILCS 5/10-1 et seq. (West 1994))]." 15 ILCS
5/10.05a (West 1994). Section 10-10 of the Code states that
"[a]ny new or existing support order entered by the court under
this [s]ection shall be deemed to be a series of judgments
against the person obligated to pay support thereunder." 305
ILCS 5/10-10 (West 1994). That section also states that "[e]ach
such judgment shall have the full force, effect and attributes of
any other judgment of this State, including the ability to be en-
forced." (Emphasis added.) 305 ILCS 5/10-10 (West 1994).
Section 10-11 of the Code, which allows the Department to proceed
under an administrative hearing, contains similar language. 305
ILCS 5/10-11 (West 1994).
Under these statutes, once an order has been entered,
the Department becomes, in essence, a judgment creditor of the
person obligated to pay support. Even if the Department were to
attempt to enforce its judgment against Brinegar from the amount
Reeves owed Brinegar by way of a garnishment proceeding, section
12-1001 of the Code of Civil Procedure exempts several types of
personal property from judgment, attachment, or distress for
rent, including the debtor's right to receive, or property
traceable to, a payment, not to exceed $7,500 in value, on
account of personal bodily injury of the debtor or an individual
of whom the debtor was a dependent. 735 ILCS 5/12-1001(h)(4)
(West 1994). Thus, the Department would be unsuccessful in
seeking to attach the judgment due Brinegar from Reeves. We note
that section 10-16.2 of the Code allows the Department to seek an
order to withhold an obligor's income and that "[a]ny other State
or local laws which limit or exempt income or the amount or
percentage of income that can be withheld shall not apply." 305
ILCS 5/10-16.2(A)(4) (West 1994). However, "income" is defined
in that section as being "any form of periodic payment." 305
ILCS 5/10-16.2(A)(4) (West 1994). A lump sum payment of a
personal injury judgment is not a periodic payment.
Finally, we note that the outcome may have been differ-
ent had Brinegar been successful in either a supplementary or a
garnishment proceeding against the state, which would have
directly obligated the state to pay Brinegar, because the state
would then have been entitled to a setoff. It has long been the
rule that the "garnishee is entitled to assert against the
indebtedness due to the judgment debtor offsetting claims against
either or both the judgment creditor and the judgment debtor."
735 ILCS 5/12-708 (West 1994); see also Finch v. Alexander County
National Bank, 65 Ill. App. 337, 339-40 (1896). In any event, we
need not decide these issues. The state may have voluntarily
attempted to indemnify Reeves, but Brinegar has not sought and is
not entitled to a payment from the state. Accordingly, the state
is not entitled to set off the payment pursuant to section 10.05
of the Act.
We recognize that once Reeves has paid the amount of
the judgment to Brinegar, Reeves will be entitled to look to the
state for indemnification. That will be a matter, however,
between Reeves and the state. As between Reeves and Brinegar,
Reeves had no right to pay the Department for Brinegar's child
support obligation. The state, as the indemnitor of Reeves, had
no right to satisfy the judgment against Reeves by a payment to a
creditor of Brinegar.
II. CONCLUSION
For the foregoing reasons, the judgment of the trial
court is affirmed.
Affirmed.
STEIGMANN, P.J., and GARMAN, J., concur.