Gallagher Bassett Services v. Miggins, 2004 WL 637770 (Ill.App., March 26, 2004)

Municipalities in Illinois are protected from allegations of negligence under the Local Governmental and Governmental Employees Tort Immunity Act ("Governmental Tort Immunity Act). A trial court decided that such immunity should shield a subrogating insurance carrier for Elk Grove Village ( "Village"), Illinois, from an affirmative defense of comparative negligence (which would act to reduce any award in whole or in part due to the insured's contributory fault). On appeal, the court reversed the decision, holding that the immunities granted in the statute applied only where a party seeks damages from a local public entity or its employee, and not when the public entity (or a carrier "standing in its shoes") asserts a claim of its own.

A Village ambulance was responding to an emergency call when it was struck by a truck driven by the defendant. Plaintiff, the Village’s automobile insurance carrier, sought compensation for damage to the ambulance. Defendant filed an affirmative defense asking the trial court to reduce his contribution in whole or in part due to plaintiff's contributory fault in causing the accident. The carrier denied the allegations of the affirmative defense, and asserted that it was immune from such a defense under section 5-106 of the Governmental Tort Immunity Act.[1] The trial court entered judgment for the carrier, ruling that the Governmental Tort Immunity Act barred defendant from asserting a defense based on contributory fault.

The appellate court fully reviewed this issue of first impression for the Illinois courts. Its analysis included consideration of the reason for the immunity law, "the evil to be remedied, and the object to be obtained." The court concluded that the immunities granted in that statute apply only in those situations where a party seeks damages from a local public entity or its employee. The statute wording provided that a public entity not be "liable for an injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment." In the case before the court, it was noted that defendant did not seek to "impose liability" upon the Village, but instead to merely raise the affirmative defense in an attempt to reduce plaintiff's recovery.

Prior Illinois decisions had held that the Governmental Tort Immunity Act should be strictly construed against the public entity as its immunities are in derogation of the common law. Van Meter v. Darien Park District, 207 Ill.2d 359, 368 (2003). Courts in other jurisdictions have taken an opposite approach, and construed the limitations liberally in favor of governmental entities, as most governments were immune from liability under the original common law (until tort claims legislation was passed permitting claims against the government and its subdivisions and agencies). See, e.g., Balser v. Department of Justice, 327 F.3d 903, 907 (9^th Cir. 2003) (waivers of sovereign immunity of United States are to be strictly construed).

With such a mindset, the Illinois appellate court construed the plain language of the statute against the Village, and held that the immunities granted in section 5-106 do not apply to bar a comparative negligence defense when the public entity has initiated judicial proceedings to recover damages for its own injury. The court went on to note that a contrary interpretation would allow the unjust result of a municipality recovering damages in full even when the damages were 99% the fault of its employee and 1% the fault of a defendant.

This holding is consistent with cases from other jurisdictions that have limited the use of the government's immunity when the government itself seeks to recover damages. City of Kalamazoo v. Priest, 331 Mich. 43, 49 N.W.2d 52 (1951) (contributory negligence defense allowed when municipality sought damages for injuries to firemen and fire truck); Faulk v. City of Tyler, 389 S.W.2d 706 (Tex.Civ.App.1965) (contributory negligence of municipality's police officer available as a defense in property damage action brought by municipality). The holding is inconsistent with Mayor & Aldermen of the City of Paterson v. Erie R.R. Co., 78 N.J.L. 592, 75 A. 922 (1910), where the city's action for damages to fire truck was not barred by city employee's contributory negligence in driving the fire truck. Every statute may be different in its wording and those differences may also explain in part different jurisdictions’ application of their tort claim laws to comparative (and contributory) negligence defenses.

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^[1] Section 5-106 provides, in part: "Except for willful or wanton conduct, neither a local public entity, nor a public employee acting within the scope of his employment, is liable for an injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment, when responding to an emergency call…." 745 ILCS 10/5-106.

PRACTICE TIP:

Carriers for governmental entities should invariably attempt to limit any claims of comparative or contributory negligence to the extent that their local jurisdiction’s governmental immunity statutes can reasonably support such an argument. As noted above, this negative decision may or may not apply in other jurisdictions, and recovery professionals should certainly review the applicable law with legal counsel before resolving matters where the defense may be asserting comparative negligence against a governmental entity insured.