Sixth Division December 24, 2009
No. 1-09-0046
MICHAEL P. GAFFNEY, ) Appeal from the Circuit Court ) of Cook County Plaintiff-Appellant, ) ) v. ) ) 07 CH 20318 THE BOARD OF TRUSTEES OF THE ORLAND FIRE ) PROTECTION DISTRICT, PATRICK MAHER, as ) President of the Board of Trustees, PATRICIA ) CORCORAN, as Secretary of the Board of Trustees, and ) the ORLAND FIRE PROTECTION DISTRICT, ) Honorable ) Nancy J. Arnold, Defendants-Appellees. ) Judge Presiding
JUSTICE McBRIDE delivered the opinion of the court:
Plaintiff Michael J. Gaffney filed a two-count complaint against the defendants, the Board
of Trustees of the Orland Fire Protection District, president Patrick Maher, secretary Patricia
Corcoran, and the Orland Fire Protection District (collectively, the District), seeking a declaratory
judgment to compel the payment of plaintiff’s health coverage benefits in accordance with section
10 of the Public Safety Employee Benefits Act (the Act) (820 ILCS 320/10 (West 2006)) and in
the alternative, for review under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West
2006)) of the District’s denial of his application for health coverage benefits under the Act. The
trial court dismissed the declaratory judgment count in June 2008, and later in December 2008,
the court considered plaintiff’s remaining count under a common law writ of certiorari and
affirmed the District’s denial of plaintiff’s application.
Plaintiff appeals, arguing that (1) the District’s consideration of plaintiff’s request for
payment of his health insurance premiums pursuant to section 10 violated the terms of section 20 1-09-0046
of the Act (820 ILCS 320/20 (West 2006)), which does not permit a home rule unit to provide
benefits in a manner inconsistent with the Act and acts as a limitation on the home rule unit’s
powers under the Illinois Constitution; and (2) plaintiff’s injury during a training exercise fire
occurred during his response to what he reasonably believed was an emergency under section
10(b) of the Act (820 ILCS 320/10(b) (West 2006)).
Plaintiff was hired by the District as a firefighter and paramedic in May 1994. On July 27,
2005, plaintiff responded to a live-fire training exercise. His superior instructed plaintiff to treat
the exercise as though it were an actual emergency call. Plaintiff’s crew responded with lights and
sirens running on the truck. Plaintiff’s crew was told to rescue a “dummy” victim from the fire
and to advance the fire hose into the building to contain the fire. Plaintiff donned full fire
protection gear, including a breathing apparatus, and entered the building. The building was full
of smoke with little to no visibility. Plaintiff found and removed the dummy victim on the second
floor. Plaintiff and his crew also worked to advance a hose line through the building. After
removing the dummy victim, they continued up to the third floor, where the fire was to be
extinguished. The hose became entangled with an unseen object and plaintiff followed the hose
line back to the obstruction. The hose was wrapped around a love seat and plaintiff used his
dominant left arm to move the love seat to free the hose. When plaintiff moved the love seat, he
severely injured his left shoulder. Plaintiff continued to participate in the exercise for a little
while, but eventually stopped due to his injury. After plaintiff’s injury, the training exercise ended.
Plaintiff was later transported to the hospital. Except for light duty, plaintiff has not returned to
work for the District since that day.
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Following his injury, plaintiff applied for a line-of-duty disability pension from the District,
which was granted in April 2007. Also in April 2007, plaintiff applied to the District to receive
health coverage benefits under the Act. The Act allows emergency service personnel, including
firefighters, and their families to continue receiving health benefits following a catastrophic injury
or death that occurred while engaged in specified aspects of their job, such as when the firefighter
was responding to what he or she reasonably believed was an emergency. See 820 ILCS 320/10
(West 2006). The District passed an ordinance directing the procedure for its firefighters to apply
for these benefits under the Act. Plaintiff’s application was continued to a special meeting of the
District in May 2007. Although the ordinance does not require a hearing, plaintiff was permitted
to present his case for benefits under the Act with his attorney at this meeting. After reviewing
plaintiff’s application and the facts of the case alongside the requirements of the Act, the board of
trustees denied plaintiff’s application, finding that plaintiff was not responding to what he
reasonably believed was an emergency at the time of his injury.
In July 2007, plaintiff filed a complaint against the District in the circuit court for
declaratory judgment, and in the alternative, for review of the District’s denial of his application
under the Administrative Review Law. The District moved to dismiss plaintiff’s complaint
pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)). In
June 2008, the trial court granted the District’s motion as to count I (declaratory judgment). The
court also held that the Act did not expressly adopt the Administrative Review Law, and
therefore, it did not apply. The court stated that it would consider plaintiff’s remaining count as a
petition for a common law writ of certiorari.
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In December 2008, following briefing and arguments, the trial court affirmed the District’s
denial of plaintiff’s application for health coverage benefits under the Act. The court found:
“The plain meaning of the phrase, ‘response to what is
reasonably believed to be an emergency,’ does not include
participation in a training exercise, particularly where, as here,
Plaintiff and his crew were given instructions prior to the start of
the exercise. Read as a whole, the statute covers situations in
which emergency response personnel are injured or killed while
performing the very services they are charged with performing.
Training exercises, although valuable as an educational tool to
prepare officers and firefighters for the types of events they are
expected to handle, are not responses to fresh pursuit or to what is
reasonably believed to be an emergency, under any plain reading of
the statute.
There was nothing unexpected about Plaintiff’s ‘response’
to the call that began the exercise. Although the exercise was
undeniably dangerous and presented certain unknown difficulties
(as expected in any such exercise), danger and unknowns are not
sufficient to constitute an emergency as that term is used in [the
Act.] Plaintiff admits that his crew was instructed to treat the
exercise as an actual call. Plaintiff and his crew therefore knew that
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the exercise was not an emergency, or even a false alarm. As a
matter of law, Plaintiff could not have reasonably believed he was
responding to an emergency.” (Emphasis in original.)
This appeal followed.
On appeal, plaintiff argues that (1) the District was not permitted to pass an ordinance
outlining a process for plaintiff to apply for benefits and its consideration of said application was
not authorized under the Act; and (2) plaintiff’s injury occurred during his response to what he
reasonably believed was an emergency.
Initially, we must address the District’s argument that this court lacks jurisdiction to
consider plaintiff’s first argument because his notice of appeal only indicated that he was
appealing from the December 10, 2008, order denying him benefits and did not mention the June
13, 2008, order dismissing the declaratory judgment count of the complaint. Generally, when a
final order has been entered in a case, all nonfinal orders previously entered may be reviewed by
the appellate court. Reed v. Retirement Board of the Fireman's Annuity & Benefit Fund, 376 Ill.
App. 3d 259, 267 (2007). “An order is final and appealable if it terminates the litigation between
the parties on the merits or disposes of the rights of the parties, either on the entire controversy or
a separate part thereof.” R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159
(1998). “An appeal from a final judgment draws into question all earlier nonfinal orders that
produced the judgment.” Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App. 3d 64, 67-68
(2003). Here, the June 13, 2008, order was a nonfinal order as it only dismissed one count of
plaintiff’s complaint and left the remaining count for further action. In contrast, the December 10,
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2008, order was a final order in this case and plaintiff filed a timely appeal of that order. Since we
may consider nonfinal orders following final judgment, any questions regarding the June 13, 2008,
order are properly before this court.
In determining the appropriate standard of review, we need to clarify the procedural
posture of this case, including the reviewability of the District's decision. Plaintiff contends that
pursuant to section 20 of the Act, the District had no authority to conduct any review of his claim
for health coverage benefits under the Act, and thus, the District’s decision is not entitled to
deference.
“Whether an agency action is reviewable is an issue of statutory construction.” Outcom,
Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 332 (2009). “Courts must consider
whether the statute which confers power on the agency to act indicates that the legislature
intended the agency's decisions to be reviewable. Frequently, the legislature's intent is clear
because the agency's enabling statute expressly provides for review under our Administrative
Review Law (735 ILCS 5/3-101 et seq. (West 2006)).” Outcom, 233 Ill. 2d at 332-33.
However, when the enabling statute does not adopt the Administrative Review Law and provides
no other method for reviewing the agency’s decision, then “ ‘the writ of common law certiorari
survives as an available method of review.’ ” Outcom, 233 Ill. 2d at 333, quoting Smith v.
Department of Public Aid, 67 Ill. 2d 529, 541 (1977). The presumption behind the use of
certiorari is that most agency decisions are reviewable, but there is no presumption of
reviewability if there is a statutory bar or statutory language directing that the agency’s decision is
up to its unreviewable discretion. Outcom, 233 Ill. 2d at 333.
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Here, it is uncontroverted that the Act does not adopt the Administrative Review Law.
820 ILCS 320/1 et seq. (West 2006). Thus, any review would have to be pursuant to a common
law writ of certiorari. Our standard of review under a writ of certiorari is essentially the same as
under the Administrative Review Law. First Access Material Handling v. Wish, 297 Ill. App. 3d
396, 402 (1998). “When reviewing an administrative agency's decision, we are limited to
determining whether the decision is against the manifest weight of the evidence.” First Access,
297 Ill. App. 3d at 402. However, we review any legal questions raised de novo. First Access,
297 Ill. App. 3d at 402. Any question as to the interpretation of the Act presents a legal question
that we review de novo, but to the extent that this determination involves a factual finding, we
review that to determine if it is against the manifest weight of the evidence. DeRose v. City of
Highland Park, 386 Ill. App. 3d 658, 660 (2008).
Plaintiff argues that the District lacked authority to enact an ordinance or otherwise
consider his claim for health coverage benefits because section 20 of the Act is a limitation on
those powers. The District maintains that the Act does not restrict its authority to pass all
necessary ordinances for the proper management and conduct of its business.
Section 20 of the Act provides:
“Home rule. An employer, including a home rule unit, that
employs a full-time law enforcement, correctional or correctional
probation officer, or firefighter may not provide benefits to persons
covered under this Act in a manner inconsistent with the
requirements of this Act. This Act is a limitation under subsection
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(i) of Section 6 of Article VII of the Illinois Constitution on the
concurrent exercise of powers and functions exercised by the
State.” 820 ILCS 320/20 (West 2006).
Plaintiff asserts that this statute prohibits the District from enacting an ordinance outlining
the application process for catastrophically injured firefighters to receive health coverage benefits.
Plaintiff argues that the District violated this statute when it enacted Ordinance No. 2003-04,
entitled “AN ORDINANCE ADOPTING A POLICY REGARDING CONTINUATION OF
INSURANCE BENEFITS UNDER THE PUBLIC SAFETY EMPLOYEE BENEFIT ACT.”
The ordinance stated that the Board of Trustees “determined that there [was] a need to adopt a
policy regarding the continuation of health insurance benefits for certain firefighters and/or their
families” pursuant to section 10 of the Act. Orland Park Fire District, Ordinance No. 2003-04
(eff. May 14, 2003). The ordinance adopted an attached policy and directed the fire chief to
disseminate the policy to all District employees. The policy states:
“When a line of duty disability or surviving spouse pension is
granted by the Board of Trustees of the Orland Firefighters’
Pension Fund and the pensioner is interested in requesting health
insurance benefits for him or herself, his or her spouse, and/or
dependent children, he/she shall complete the ‘Application for
Continuation of Insurance Benefits under the Public Safety
Employee Benefits Act.’ The application will be reviewed to
determine if the requirements of the Act have been met, including,
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but not limited to, the following:
1. The catastrophic injury or death for which a line-of-duty
pension or surviving spouse pension was granted must have
occurred since November 14, 1997; and
2. The injury or death must have occurred as a result of the
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.
If the application is approved, the pensioner, spouse and/or
dependent children shall receive basic group health insurance at no
cost. Any health insurance benefits payable from any other source
shall reduce benefits payable under the Act and this policy. (820
ILCS 320/10).”
This ordinance mirrors that language used in section 10 of the Act, which requires (1) a
catastrophic injury or death; and (2) the injury or death occurred as a result of the police officer’s
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. See 820 ILCS 320/10 (West
2006).
Plaintiff argues at length that this ordinance is prohibited under section 20 of the Act, but
fails to explain how the ordinance violates section 20. Section 20 limits home rule units
application of the Act in that, the home rule units “may not provide benefits to persons covered
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under this Act in a manner inconsistent with the requirements of this Act.” 820 ILCS 320/20
(West 2006). Plaintiff has not asserted how the ordinance is inconsistent with the Act, but instead
claims that the ordinance “is not a neutral and benign procedure” and “is tantamount to creating
an ordinance that requires a hearing for the payment of utilities bills.” Plaintiff’s arguments imply
that payment of health coverage benefits under the Act is presumed without any consideration of
the Act. We disagree.
We point out that section 6 of the Fire Protection District Act (70 ILCS 705/1 et seq.
(West 2008)) specifically authorizes the Board of Trustees to provide and pay for health insurance
benefits to its employees (70 ILCS 705/6(e) (West 2008)) as well as the power to pass all
necessary ordinances for the proper management and conduct of its business (70 ILCS 705/6(i)
(West 2008)). Additionally, section 10-4-2(c) of the Illinois Municipal Code provides that a
corporate authority “may enact an ordinance prescribing the method of operation of the insurance
program.” 65 ILCS 5/10-4-2(c) (West 2006). Under these statutes, the District’s board of
trustees was within its statutory power to pass an ordinance outlining the “method of operation”
for those firefighters seeking health insurance benefits under the Act.
“[A]n ordinance cannot add to, subtract from, or affect a statute's provisions, and if the
ordinance conflicts with the statute, it is invalid.” JLR Investments, Inc. v. Village of Barrington
Hills, 355 Ill. App. 3d 661, 666 (2005). In this case, the ordinance in question does not conflict
with or affect any of the provisions under the Act. The ordinance outlines a procedure in which
firefighters may receive health coverage benefits under the Act. It does not impose any
substantive requirements of a firefighter that are inconsistent with the Act. If a firefighter (or
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his/her spouse) would like to receive health coverage benefits under the Act, then an application is
filed that describes the injury or death and circumstances surrounding the injury. The application
is reviewed to determine if it satisfies section 10 of the Act. This process is not inconsistent with
the Act.
Plaintiff also asserts that since the Act “contains absolutely no provision creating an
administrative procedure for the adjudication of claims,” then pursuant to article VI, section 9, of
the Illinois Constitution of 1970, the circuit court has exclusive jurisdiction. However, plaintiff
fails to consider the statutes we have previously cited which explicitly designate the District’s
board of trustees to oversee the management and payment of health insurance benefits to its
employees and that, as part of that power, the board may pass ordinances to assist in the
management of its business. The ordinance passed explaining the board’s policy for considering
claims under the Act did not divest the circuit court of jurisdiction since the board had the power
to administer health insurance benefits to its employees. Therefore, the District had the authority
to consider plaintiff’s application for benefits under the Act.
Next, we turn to the question of whether plaintiff is entitled to health coverage benefits
under the Act.
Section 10 of the Act 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
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employer's health insurance plan for the injured employee, the
injured employee's spouse, and for each dependent child of the
injured employee until the child reaches the age of majority or until
the end of the calendar year in which the child reaches the age of 25
if the child continues to be dependent for support or the child is a
full-time or part-time student and is dependent for support. * * *
(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 (West 2006).
It is uncontested by the parties that plaintiff suffered a catastrophic injury that satisfies
section 10(a) of the Act. Therefore, the only question before us is whether the injury occurred
while plaintiff was engaged in one of the listed tasks. Plaintiff argues that his injury occurred
while he was responding to what he “reasonably believed to be an emergency.” The District
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responds that plaintiff’s injury during a training exercise does not qualify as a response to what
plaintiff “reasonably believed to be an emergency.”
First, we examine what the meaning of the term “emergency” is as used in the Act. The
cardinal rule in construing a statute, to which all others are subordinate, is to ascertain and give
effect to the intent of the legislature. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). To
determine legislative intent, we turn to the language of the statute, which is the best indicator of
its intent. Alvarez, 229 Ill. 2d at 228. We must give the statutory language “plain, ordinary, and
popularly understood meaning,” and “[w]here the language is clear and unambiguous, the statute
must be given effect as written without resort to further aids of statutory construction.” Alvarez,
229 Ill. 2d at 228. “[A]ll words and phrases must be interpreted in light of other relevant
provisions of the statute and must not be construed in isolation.” Brucker v. Mercola, 227 Ill. 2d
502, 514 (2007). “Each word, clause and sentence of the statute, if possible, must be given
reasonable meaning and not rendered superfluous.” Brucker, 227 Ill. 2d at 514.
In DeRose v. City of Highland Park, 386 Ill. App. 3d 658 (2008), the Second District
considered the same provision of section 10(b). In that case, a police officer responded to a call
where a residential burglary alarm had been triggered. When he arrived at the residence, the
officer investigated the property to check for open doors or broken windows. While approaching
a rear sliding glass door, the officer slipped, fell and sustained an injury to his shoulder. The
officer continued investigating the property and concluded that the alarm had been a false alarm.
DeRose, 386 Ill. App. 3d at 659. Following a bench trial, the officer was awarded health
coverage benefits under the Act. DeRose, 386 Ill. App. 3d at 660.
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On appeal, the City of Highland Park (the City) contended that the officer was not
responding to what was “reasonably believed to be an emergency.” DeRose, 386 Ill. App. 3d at
660. The reviewing court first considered the meaning of “emergency” as it applied to the Act.
“Although the Employee Benefits Act does not provide a
definition for the word ‘emergency’ as it is used in section 10, the
parties essentially agree on the meaning to be accorded it.
Defendant directs us to dictionary definitions that indicate that the
word ‘emergency’ means ‘ the “urgent need for assistance or
relief,” ’ or ‘ “an unforeseen combination of circumstances that calls
for immediate action.” ’ Plaintiff cites a dictionary defining the
term as ‘ “a sudden condition or state of affairs calling for
immediate action.” ’ Our own resort to the dictionary yields a
similar definition: Webster's Third New International Dictionary
defines the word ‘emergency’ primarily as ‘an unforeseen
combination of circumstances or the resulting state that calls for
immediate action.’ Webster's Third New International Dictionary
741 (1993). We agree with the parties that the above definitions
are appropriate, and we interpret the word ‘emergency’ as used in
the Employee Benefits Act consistently with the word's dictionary
definition. A situation is therefore an ‘emergency’ under the
Employee Benefits Act where it is urgent and calls for immediate
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action.” DeRose, 386 Ill. App. 3d at 660-661.
The court in DeRose applied this definition to the circumstances of the case to determine
if the officer believed he was responding to an emergency, and if so, if that belief was reasonable.
DeRose, 386 Ill. App. 3d at 661. The City argued that the officer did not believe he was
responding to an emergency because he did not use sirens or lights when he traveled to the
location of the alarm. However, the reviewing court did not find this failure to use sirens and
lights to be dispositive, particularly because the officer had explained that he did not wish to alert
any potential intruder as to his arrival on the scene. DeRose, 386 Ill. App. 3d at 661-62. Further,
the court noted that the officer “may not have viewed the situation here as requiring that he use
his lights or siren to expedite his arrival at the scene, but, by traveling to the scene without pause,
he nonetheless acted in a manner consistent with a belief that the situation required his immediate
response” and concluded that the officer believed he was responding to an emergency. DeRose,
386 Ill. App. 3d at 662.
In considering whether the officer’s belief was reasonable, the City contended that most of
the alarms received by the police department were false, which ended up being true in that case.
The reviewing court dismissed this argument as its application could cause police officers to delay
response to potentially dangerous calls based on prior situations that resulted in no bona fide need
for a response and the call could control whether a situation was an emergency based on the
statistical likelihood of a bona fide need for a response. DeRose, 386 Ill. App. 3d at 662-63. The
court held that “a call requires an officer's immediate response, and is therefore an emergency,
until the officer eliminates the possibility that the call is bona fide.” DeRose, 386 Ill. App. 3d at
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663. Since the officer had an immediate response to the call and had not yet eliminated the
possibility of danger when he was injured, the DeRose court concluded that the officer’s belief
that he continued to face an emergency was reasonable. DeRose, 386 Ill. App. 3d at 663.
We agree with the DeRose court’s conclusion that an “emergency” under the Act occurs
when the incident “is urgent and calls for immediate action.” Next, we need to determine whether
plaintiff believed he was responding to an emergency, and if so, was plaintiff’s belief reasonable.
Unlike the circumstances present in DeRose, plaintiff was not responding to a call from the public,
but participating in a live-fire training exercise. Plaintiff argues that he was reasonable in his
belief that “he was confronted by an emergency situation because he [was] directly ordered to
believe that this [training exercise] was an emergency.” The District maintains that the training
exercise was not an “emergency” because the firefighters were told what the goal of the training
exercise was: to rescue the dummy victim and advance the fire hose to put out the fire. The
District asserts that, “[b]y definition, these pre-planned situations cannot be classified as an
unforeseen combination of circumstance for which the General Assembly intended Section 10(b)
coverage.”
Plaintiff’s testimony before the District establishes that he did not believe he was
responding to an emergency. Plaintiff knew that this training exercise was not an actual
emergency and that it was a live-fire training exercise. Plaintiff noted that not all training
exercises involve a live fire. Even though plaintiff was instructed to treat the training exercise as
an emergency, an instruction to treat a training exercise as though it were an emergency does not
make it an emergency under the language of the statute. In fact, it illustrates the opposite: a
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training exercise is not inherently an emergency. He and his crew were given specific instructions
and tasks to accomplish during the training exercise. Additionally, after plaintiff was injured, the
training exercise was stopped. Here, plaintiff’s testimony shows that he believed that he was
responding to a training exercise, albeit one that involved a live fire, and not an emergency.
Therefore, plaintiff did not have a reasonable belief that he was responding to an emergency and is
not entitled to benefits under the Act.
We find further support for our conclusion by considering the language employed in the
applicable line-of-duty disability pension statute. That statute states, in relevant part,
“[i]f a firefighter, as the result of sickness, accident or injury incurred in or resulting from
the performance of an act of duty or from the cumulative effects of acts of duty, is found,
pursuant to Section 4-112, to be physically or mentally permanently disabled for service in the fire
department, so as to render necessary his or her being placed on disability pension ***.” 40 ILCS
5/4-110 (West 2006). Under this statute, a firefighter is eligible for a line-of-duty disability
pension if the injury or illness occurred during “the performance of an act of duty or from the
cumulative effects of acts of duty.” This language is broader than that used under the Act as it
encompasses any injury that occurred during an “act of duty.” Under this statute, participation in
a required training exercise would be an “act of duty.” See O’Callaghan v. Retirement Board of
Firemen’s Annuity & Benefit Fund, 302 Ill. App. 3d 579 (1998) (finding that a knee injury
incurred during a candidate training class was an act of duty).
In contrast, the Act did not use the phrase “act of duty,” instead adopting a narrower
application for the specifically referenced occurrences: “the officer's response to fresh pursuit, the
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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.” 820 ILCS 320/10 (West
2006). The dissent cites to comments made by members of the General Assembly introducing the
bill creating the Act by describing it as “provid[ing] that for full-time law enforcement officers and
firefighters that are killed or disabled in the line of duty shall continue the health benefits for the
officer or the firefighter, their spouses and their children.” 90th Ill. Gen. Assem., Senate
Proceedings, May 16, 1997, at 192 (statements of Senator Donahue). We point out that “while
courts give some consideration to statements by a sponsor of a bill, such statements are not
controlling.” Kunkel v. Walton, 179 Ill. 2d 519, 536 (1997). Significantly, the legislature
declined to use the phrase “line of duty” in drafting the bill. Instead, subsection (b) limits health
benefits coverage to four specific circumstances during which the death or catastrophic injury
occurred. “Generally, when the legislature uses certain words in one instance and different words
in another, different results were intended.” Emerald Casino, Inc. v. Illinois Gaming Board, 346
Ill. App. 3d 18, 35 (2003). Here, the difference in statutory language illustrates the legislative
intent that the Act be applied narrower than the line of duty disability pension.
While we understand plaintiff’s position in seeking health benefits coverage, we conclude
that the legislature did not intend for the statute to be applied under the facts of this case.
Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
Affirmed.
CAHILL, P.J., concurs.
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JUSTICE ROBERT E. GORDON, dissenting:
I respectfully dissent. The majority asks us to believe that an emergency, as defined under the
Public Safety Employees Benefit Act (the Act) (820 ILCS 320/10 (West 2006)), cannot exist in a firefighter
training exercise. That is simply not true. In the case at bar, an emergency developed in the course of a
firefighter training exercise and a firefighter was catastrophically injured while responding to it. The
legislature enacted the Act in order to provide health insurance coverage to public safety employees,
and their families, who are catastrophically injured in the line of duty (90th Ill. Gen. Assem., Senate
Proceedings, May 16, 1997, at 192 (statements of Senator Donahue)), as was the plaintiff in this case, and
we should ensure that a firefighter obtains what is due to him under the Act. Firefighters put their lives on
the line for the public on a daily basis.
In the case at bar, plaintiff served as a firefighter and paramedic with the Orland Park Fire
Protection District (District) from 1994 until 2005, when he received a catastrophic injury in the course
of a training exercise in which he engaged as part of his employment with the District. On July 27, 2005,
plaintiff and a team of District firefighters engaged in a live-fire training exercise and were told by their
supervisors that they were to treat the exercise as an emergency. The firefighters proceeded with lights
and sirens to a burning building, which contained several obstacles and a dummy victim inside. Plaintiff’s
assignment in the exercise included bringing a hose to the location of the fire inside the building and
locating the dummy victim.
Upon arriving at the scene, plaintiff donned fire protection gear and a self-contained breathing
apparatus tank before entering the burning building. Plaintiff proceeded through the building to the
second floor, where he and his team rescued the dummy victim. At this time, the building was filled with
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smoke and visibility was nonexistent.
After rescuing the dummy victim, plaintiff and his team proceeded to the third floor of the building
in order to extinguish the fire. While they advanced toward the source of the fire, plaintiff’s fire hose
became stuck on a then-unknown object, effectively trapping plaintiff and his team near a burning fire in an
area with several obstacles and no visibility. At this point, plaintiff retraced the hose, found that it was
tangled around a loveseat, and proceeded to free the hose. In the course of freeing the fire hose,
plaintiff suffered a catastrophic injury to his left shoulder that has prevented him from serving as a
firefighter since the July 27, 2005, incident. He was later placed on permanent duty disability.
The instant case turns on what the legislature meant by the term “emergency” or “what is
reasonably believed to be an emergency” in the Public Safety Employees Benefit Act (820 ILCS 320/10
(West 2006)). The statute provides, in relevant part:
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 until the
child reaches the age of majority or until the end of the calendar year in
which the child reaches the age of 25 if the child continues to be
dependent for support or the child is a full-time or part-time student and
is dependent for support. ***
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(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.” (Emphasis added.) 820 ILCS 320/10 (West 2006).
When construing a statute, we must “ascertain and give effect to the legislature’s intent” and “the
best indication of legislative intent is the statutory language, given its plain and ordinary meaning.” People
v. Pack, 224 Ill. 2d 144, 147 (2007).
The legislature did not provide us with a definition of “emergency” in the Act, and so we must
determine under what circumstances the legislature intended the Act to apply. In other words, we must
determine what is “reasonably believed to be an emergency.” 820 ILCS 320/10 (West 2006). First I note
that the legislature explicitly declined to limit the Act to actual emergencies. If the legislature had
intended to limit the Act to actual emergencies, in other words, to exclude training exercises, it could
have done so. Instead, the legislature chose to use the phrase “what is reasonably believed to be an
emergency,” which indicates that a firefighter’s subjective beliefs in the particular situation control.
Some additional guidance can be found in the House and Senate transcripts of the discussions
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preceding the passage of the Act. I cannot use the term “debates” to refer to these statements because
there was no debate about the passage of the Act. In fact, the Act was never debated in the General
Assembly. Instead, Representative Tenhouse and Senator Donahue each made statements generally
describing the proposed bill to their respective legislative bodies. Prior to a vote in the House,
Representative Tenhouse made the following remarks describing the Act: “1347 [the Act] is a simple Bill.
It simply provides that full-time law enforcement officers and firefighters that are killed or disabled in the
line of duty, we’re going to continue the health benefits for the officer’s children and spouse.” 90th Ill.
Gen. Assem., House Proceedings, April 14, 1997, at 180 (statements of Representative Tenhouse).
Senator Donahue expanded on Representative Tenhouse’s remarks and explained the impetus
for the Act: compliance with federal legislation that would bring federal funding for crime-fighting efforts to
the State of Illinois. As Senator Donahue explained:
“House Bill 1347 creates the Public Safety Employees Benefit Act, and
what this bill does is because of legislation that was passed at the
federal level, many of our districts or our areas are receiving federal
funds for more policemen. And in a caveat in that legislation, it says that
those federal funds are contingent on passing a benefits Act. And what
this does is that it provides that for full-time law enforcement officers
and firefighters that are killed or disabled in the line of duty shall
continue the health benefits for the officer or the firefighter, their
spouses and their children. I think this is a very important piece of
legislation. I’m not one that normally passes onto a mandate at the local
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level, but I think this is worth it, and it’s something very necessary.” 90th
Ill. Gen. Assem., Senate Proceedings, May 16, 1997, at 192 (statements
of Senator Donahue).
The only debate that occurred regarding the Act took place not within the legislature but rather
between the legislature and the Governor, who initially vetoed the Act. On October 28, 1997, the House
overrode the Governor’s veto by a vote of 115 to 1. 90th Ill. Gen. Assem., House Proceedings, October
28, 1997, at 16 (statements of Representative Hannig). Two weeks later on November 14, 1997, the
Senate overrode the Governor’s veto by a vote of 58 to 1, and the Act was passed into law. 90th Ill.
Gen. Assem., Senate Proceedings, November 14, 1997, at 136 (statements of Senator Dudycz).
Every time a legislator discussed the contents of the Act, he employed the phrase “killed or
disabled in the line of duty.” 90th Ill. Gen. Assem., House Proceedings, April 14, 1997, at 180 (statements
of Representative Tenhouse); 90th Ill. Gen. Assem., Senate Proceedings, May 16, 1997, at 192
(statements of Senator Donahue); 90th Ill. Gen. Assem., House Proceedings, October 28, 1997, at 16
(statements of Representative Tenhouse); 90th Ill. Gen. Assem., Senate Proceedings, November 14, 1997,
at 136 (statements of Senator Donahue). In addition, when asking the Senate to override the Governor’s
veto, Senator Donahue expressly stated that the legislature intended the phrase “catastrophically
injured” to mean injuries suffered by a police officer or firefighter whose injury qualified him to take a line
of duty pension under section 6-151 of the Pension Code (40 ILCS 5/6-151 (West 2006)). 90th Ill. Gen.
Assem., Senate Proceedings, November 14, 1997, at 136 (statements of Senator Donahue). In
O’Callaghan v. Retirement Board of Firemen’s Annuity & Benefit Fund of Chicago, 302 Ill. App. 3d 579
(1998), the fourth division of this district held that a firefighter injured during a training drill was eligible
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for a line of duty disability pension. 302 Ill. App. 3d at 583-84. I see nothing in the text of the Act or its
legislative history to indicate that firefighters injured during training exercises, especially live fire
exercises, in which an emergency develops should be excluded from benefits under the Act.
The Second District in DeRose v. City of Highland Park, 386 Ill. App. 3d 658 (2008), determined
a definition of “emergency” under the Act. The DeRose court found that “a situation is therefore an
‘emergency’ under the Employee Benefits Act where it is urgent and calls for immediate action.” 386 Ill.
App. 3d at 661. Black’s Law Dictionary provides a similar definition of “emergency circumstances,” which
are defined under the term “exigent circumstances.” It states: “Exigent circumstances may exist if (1) a
person’s life or safety is threatened, (2) a suspect’s escape is imminent, or (3) evidence is about to be
removed or destroyed.” Black’s Law Dictionary 277 (9th ed. 2009).
Nowhere in either of these definitions is there dependence on whether the situation is or is not
part of a training exercise. Instead, the definitions focus on a threat presented that demands immediate
attention.
The majority agrees with the DeRose court and found that an “emergency” under the Act
constitutes a situation that “ ‘is urgent and calls for immediate action.’ ” Slip op. at 16. Under this
definition, the majority fails to find an emergency situation in a training exercise, arguing, “a training
exercise is not inherently an emergency.” Slip op. at 16-17. I can accept that proposition. However, the
majority continues and claims that when plaintiff began the training exercise, “he believed that he was
responding to a training exercise, albeit one that involve a live fire, and not an emergency.” Slip op. at 17.
The majority’s analysis focuses on what was the plaintiff’s belief at the inception of the exercise,
but that is not when the emergency occurred. This argument is flawed because it presumes that an
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emergency situation cannot develop during a training exercise. Under its reasoning, the majority would
have us believe that because a firefighter knows that he is engaging in a training exercise, the situation
would, by definition, never be an emergency, regardless of what occurred after the exercise began. Thus,
even if the live fire became out of hand and the building burned down with the firefighters, that would not
constitute an emergency.
Nevertheless, even under the majority’s definition of “emergency,” the plaintiff has still
established that an emergency arose in the course of the July 27, 2005, training exercise. The parties’
briefs and the majority opinion focus a great deal of attention on the fact that plaintiff not only was
participating in a training exercise but also that he knew that he was engaging in a training exercise.
Nothing in the Act compels us to consider the incident only at its inception. Rather, the statute directs us
to consider “the officer or firefighter’s response to what is reasonably believed to be an emergency.”
820 ILCS 320/10(b) (West 2006). As the majority’s definition of “emergency” tells us, we must determine
whether a situation occurred that was “urgent and call[ed] for immediate action.” Slip op. at 16. We do
not sit with blinders on and say that an emergency cannot occur in a training exercise. If the legislature
intended an emergency not to apply in a training exercise, it would have said so in the statute.
When I look at the facts presented by the plaintiff, it is clear that plaintiff suffered his injury
during his response to “what is reasonably believed to be an emergency.” 820 ILCS 320/10(b) (West
2006). When plaintiff’s fire hose became stuck, an emergency arose. Plaintiff and his team were halted on
the third floor of a burning building, near the source of the fire without water because of a tangled hose.
Smoke from the fire obscured all visibility in the building and plaintiff could not advance the hose to
extinguish the fire until the obstruction was removed. A team of firefighters stuck on the third floor of a
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burning building, with no visibility, and unable to put out the fire without plaintiff’s actions to remove the
obstruction seems like an emergency under the plain meaning of the term. The situation was “ ‘urgent and
call[ed] for immediate action.’ ” Slip op. at 16.
Firefighter training exercises can be extremely dangerous. Between 1987 and 2001, fire
departments around the country reported an average of 6,700 training-related injuries every year. U.S.
Fire Admin., Department of Homeland Security, USFA-TR-100, Special Report: Trends and Hazards in
Firefighter Training 7 (May 2003). These injuries include sprains/strains, heart attack or stroke, smoke/gas
inhalation and other respiratory ailments, dislocations and fractures, burns, and other wounds. U.S. Fire
Admin., Department of Homeland Security, USFA-TR-100, Special Report: Trends and Hazards in
Firefighter Training 7 (May 2003). In addition, the number of firefighter training-related fatalities each year
has increased from 1987 to 2001. U.S. Fire Admin., Department of Homeland Security, USFA-TR-100,
Special Report: Trends and Hazards in Firefighter Training 8 (May 2003). Live-fire training exercises, in
particular, “pose a significant risk to trainees and instructors.” U.S. Fire Admin., Department of Homeland
Security, USFA-TR-100, Special Report: Trends and Hazards in Firefighter Training 12 (May 2003).
While, as the majority posits, “a training exercise is not inherently an emergency” (slip op. at 16-
17), the dangers inherent in a live-fire training exercise can lead to an emergency situation at any time.
Plaintiff and his team were lucky; they survived the fire and benefitted greatly from plaintiff’s actions in
freeing the fire hose. Plaintiff’s efforts in responding to an emergency – freeing the fire hose, and thus
saving his team from a perilous situation – are exactly the sort of acts that the legislature sought to
reward when it passed the Act.
The trial court erred in denying plaintiff benefits under the Act.
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