Bell v. Retirement Board of the Firemen's Annuity and Benefit

FIFTH DIVISION

February 19, 2010

No. 1-09-0497

SYLVIA BELL, et al., )

) Appeal from the

Plaintiff-Appellee, ) Circuit Court of

) Cook County.

v. )

) 07 CH 38786

THE RETIREMENT BOARD OF THE )

FIREMEN’S ANNUITY AND BENEFIT ) The Honorable

FUND OF CHICAGO, ) William O. Maki,

) Judge Presiding.

Defendant-Appellant. )

PRESIDING JUSTICE TOOMIN delivered the opinion of the court:

In this appeal, we are asked to determine whether the Retirement Board of the Firemen’s

Annuity and Benefit Fund of Chicago (Board) correctly determined that section 6-140 of the

Illinois Pension Code (40 ILCS 5/6-140 (West 2006)) does not require payment of benefits to

widows retroactive to the date of their husbands’ deaths, and whether the Board’s notice

informing plaintiffs of its adverse decision complied with procedural due process requirements.

The underlying proceedings were brought by the widows of Chicago firefighters whose husbands

died while on permanent disability from injuries they sustained in the line of duty. Although the

Board granted the widows’ applications for greater benefits under section 6-140 of the Pension

Code, it declined to make them retroactive to the date of their husbands’ deaths.

Plaintiffs sought administrative review, and the circuit court vacated in part the Board’s

decision and instead ordered that the benefits be paid retroactive to the date of plaintiffs’

1-09-0497

husbands’ deaths with prejudgment and postjudgment interest.

On appeal, the Board maintains that: (1) the circuit court lacked subject matter

jurisdiction as plaintiffs’ complaint was not timely filed under the Administrative Review Law

(735 ILCS 5/3-101 et seq. (West 2006)); (2) plaintiffs’ annuity should be paid prospectively from

the date of the Bertucci v. Retirement Board of the Firemen’s Annuity Fund, 351 Ill. App. 3d

368, 813 N.E.2d 1201 (2000), decision, rather than retroactively from the date of plaintiffs’

husbands’ deaths; (3) the circuit court erred in awarding prejudgment interest; and (4) the

applicable postjudgment interest rate is 6%, rather than 9% as the court awarded. For the

following reasons, we vacate that portion of the circuit court’s judgment awarding prejudgment

interest and affirm the judgment as modified.

BACKGROUND

Plaintiffs collectively are widows of Chicago firefighters whose husbands were

permanently injured as the result of their duties and were receiving duty-disability benefits from

the Fireman’s Annuity and Benefit Fund of Chicago (the Fund) for their injuries at the time they

died. In each case, the Board had determined that the firefighters’ injuries were permanent and

prevented them from ever resuming work as active firefighters. However, the Board also

determined that the firefighters had died from causes not related to the injuries that they sustained

while on duty. After the firefighters’ deaths, the Board awarded each surviving widow a non-

duty death benefit annuity under section 6-141.1 of the Illinois Pension Code (40 ILCS 5/6-141.1

(West 2006)), which was 50% of the disability benefits the firefighters had been receiving, rather

than the 75% duty death benefit under section 6-140 of the Pension Code (40 ILCS 5/6-140

2

1-09-0497

(West 2006)), which escalates annually based on current salaries for the firefighters’ positions.

The widows all began receiving the non-duty death benefits from about 14 to 28 years ago.

On June 29, 2004, this court issued its decision in Bertucci v. Retirement Board of the

Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368, 813 N.E.2d 1021 (2004), where we

held section 6-140 of the Pension Code provides that a widow is entitled to the enhanced benefits

provided she could demonstrate through medical evidence that her husband’s duty injury was

permanent and prevented him from ever returning to active duty. On August 19, 2005, the Fund,

at the direction of the Board, notified widows whose husbands died while on disability that under

the Bertucci decision they “may” be eligible for benefits under section 6-140. The notification

included an application for the enhanced benefits and advised them that a hearing would be held

at a future date before the Board. In turn, all of the plaintiffs returned applications to the Fund.

Thereafter, the Fund sent the plaintiffs a notice of hearing informing them that their

application documents demonstrated that their husbands’ duty disabilities also prevented them

from ever resuming their service as firefighters and advised them of the date of the hearing. The

notices also stated: “It is not required however, that you appear or that you retain an attorney.”

The plaintiffs were found eligible for section 6-140 benefits at the Board meetings on October

26, 2005, and January 18, 2006. Plaintiffs received letters from the Board advising them that

their applications for section 6-140 benefits were “granted” and that they would be paid the

benefits retroactive to the date of the Bertucci decision, as calculated by the Board. The letters

stated the widows had the right to file for administrative review within 35 days of the date the

letters were issued. However, the Board failed to inform plaintiffs that they were denied benefits

3

1-09-0497

retroactive to their husbands’ date of death.

On December 14, 2005, another widow, who is not a party to this appeal, Mary Lou

Long, who also was denied retroactive benefits to the date of her husband’s death, filed a class

action to recover such payments under section 6-140. However, on August 6, 2007, the circuit

court denied Long’s class certification. On August 8, 2007, plaintiffs received a letter from

Long’s counsel advising them that a class action had been filed to collect retroactive benefits on

behalf of all widows who were unaware that the pension payments should be retroactive to the

date of their husbands’ deaths, but that the class action certification had been denied and they

would have to obtain their own representation. On December 31, 2007, plaintiffs filed their

complaint for administrative review of the Board’s decision.

On January 26, 2009, the circuit court entered an order granting plaintiffs’ complaint for

administrative review, vacating in part the decision of the Board to grant the annuity benefits

retroactive to June 29, 2004, and instead ordering that the benefits be paid from the date of

plaintiffs’ husbands’ deaths. The court’s order further awarded plaintiffs prejudgment interest at

5% on all unpaid section 6-140 benefits up to the date of the order, pursuant to section 2 of the

Interest Act (815 ILCS 205/2 (West 2008)), and postjudgment interest at 9% pursuant to section

2-1303 of the Code of Civil Procedure (735 ILCS 5/2-1303 (West 2008)). This appeal followed.

ANALYSIS

I. Jurisdiction

The Board first maintains that the circuit court lacked jurisdiction over plaintiff’s

complaint because it was not timely filed as provided by section 3-103 of Article III of the

4

1-09-0497

Illinois Code of Civil Procedure, referred to as the Administrative Review Law (735 ILCS 5/3-

103 (West 2006)). Under the foregoing section, parties seeking judicial review of an

administrative agency’s decision are required to file their action within 35 days from the date of

the decision. Specifically, section 3-103 provides the following:

“Every action to review a final administrative decision shall be commenced by the

filing of a complaint and the issuance of summons within 35 days from the date that a

copy of the decision sought to be reviewed was served upon the party affected by the

decision.” 735 ILCS 5/3-103 (West 2006).

The provisions of the Administrative Review Law clearly demonstrate that the filing of

the complaint for administrative review within the time period specified is a jurisdictional

requirement that cannot be waived. Fredman Brothers Furniture Co. v. Department of Revenue,

109 Ill. 2d 202, 211, 486 N.E.2d 893, 896 (1985). Consequently, if the statutory procedures are

not strictly followed, the circuit court is lacking jurisdiction to hear the case. Rodriguez v.

Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 350, 843 N.E.2d 379, 383 (2006). Because this

jurisdictional question presents a question of law, our review is de novo. Jelinek v. Retirement

Board of the Firemen's Annuity & Benefit Fund, 392 Ill. App. 3d 372, 376, 910 N.E.2d 750, 754

(2009), citing Vogue Tyre & Rubber Co. v. Office of the State Fire Marshal, 354 Ill. App. 3d 20,

23, 820 N.E.2d 15, 17 (2004).

Notwithstanding this jurisdictional requirement, “[i]t is firmly established that

administrative proceedings must conform to the constitutional requirements of due process of

law.” Wendl v. Moline Police Pension Board, 96 Ill. App. 3d 482, 486, 421 N.E.2d 584, 587

5

1-09-0497

(1981). Our precedent instructs that “[t]he receipt of a disability pension is a property right

which cannot be diminished without procedural due process.” Kosakowski v. Board of Trustees

of the City of Calumet City Police Pension Fund, 389 Ill. App. 3d 381, 387, 906 N.E.2d 689, 695

(2009), citing Wendl, 96 Ill. App. 3d at 486-87, 421 N.E.2d at 587-88. “ ‘The essence of

procedural due process is meaningful notice and a meaningful opportunity to be heard.’ ”

Kosakowski, 389 Ill. App. 3d at 387, 906 N.E.2d at 695, quoting Trettenero v. Police Pension

Fund, 333 Ill. App. 3d 792, 799, 776 N.E.2d 840, 847 (2002). Accordingly, the 35-day

jurisdictional requirement will not serve to bar a plaintiff’s complaint for administrative review

where the agency fails to fairly and adequately inform a plaintiff of its decision. Keller v.

Retirement Board of the Fireman’s Annuity & Benefit Fund, 245 Ill. App. 3d 48, 53-54, 614

N.E.2d 323, 327 (1993); Barry v. Retirement Board of the Fireman’s Annuity & Benefit Fund,

357 Ill. App. 3d 749, 761-62, 828 N.E.2d 1238, 1249-50 (2005).

In Keller, we affirmed the circuit court’s decision to invoke its jurisdiction over the cause

notwithstanding that more than three years elapsed from the representative plaintiff’s receipt of

the Board's decision and commencement of her suit, because the Board failed to provide fair and

adequate notice. Keller, 245 Ill. App. 3d at 53-54, 614 N.E.2d at 327. In Keller, the notice

merely stated that at a regular meeting of the Board, their application for annuity benefits was

“granted,” but failed to apprise plaintiffs of the Board's decision to terminate their 75% annuity

benefits. Keller, 245 Ill. App. 3d at 53, 614 N.E.2d at 327. We further held the plaintiffs’ action

was not barred because the Board failed to give plaintiffs notice of their right to appeal the

decision within 35 days. Keller, 245 Ill. App. 3d at 54, 614 N.E.2d at 327. Such notice, we

6

1-09-0497

observed, was required by Johnson v. State Employees Retirement System, 155 Ill. App. 3d 616,

508 N.E.2d 351 (1987), a holding subsequently overruled by Carver v. Nall, 186 Ill. 2d 554, 714

N.E.2d 486 (1999).

In Barry, the letters notifying the plaintiffs of the decisions on their applications were

similarly misleading because they stated that “your application for widow's annuity was granted

in the amount of. (Emphasis added.)” Barry, 357 Ill. App. 3d at 762, 828 N.E.2d at 1249-50.

The letters did not specify what kind of annuity had been granted; rather, they simply informed

the plaintiffs of the respective amounts that they would receive each month. Barry, 357 Ill. App.

3d at 762, 828 N.E.2d at 1250. Also, as in Keller, none of the letters told the plaintiffs that the

duty-related 75% widow's annuity would not be awarded. Barry, 357 Ill. App. 3d at 762, 828

N.E.2d at 1250.

More recently, in Coleman v. Retirement Board of the Firemen’s Annuity & Benefit Fund,

392 Ill. App. 3d 380, 911 N.E.2d 493 (2009), we determined that the Board's letter to the plaintiff

failed to meet due process obligations necessary to activate the 35-day time limit because it

stated her “application for widow’s annuity was granted,” but did not inform her that she was

being awarded lesser benefits under section 6-141.1 of the Pension Code, rather than the higher

benefits available under section 6-140. Coleman, 392 Ill. App. 3d at 386, 911 N.E.2d at 499.

We found problematic that the Board's 2003 award letter “failed to inform plaintiff that the

annuity awarded essentially constituted a denial of the alternative and higher benefit available to

her under section 6-140.” Coleman, 392 Ill. App. 3d at 386, 911 N.E.2d at 499.

We are of course mindful that pursuant to Carver v. Nall, 186 Ill. 2d 554, 562-63, 714

7

1-09-0497

N.E.2d 486, 490-91 (1999), because the right to appeal from an administrative decision is not

constitutionally mandated and therefore is not an essential component of due process, the failure

to advise parties of their appeal rights within 35 days does not toll the statute of limitations.

However, as we noted in Barry, Carver is not applicable where the issue does not implicate the

failure to provide timely notice but rather whether notice of the decision by the Board was fair

and adequate. Barry, 357 Ill. App. 3d at 763, 828 N.E.2d at 1250. Thus, our holding clearly

resonates here; “the supreme court in Carver did not overrule the first basis relied upon by Keller

in support of its decision not to apply the 35-day time limit, namely, that ‘fair and adequate’

notice of the decision taken by the Board is necessary to activate the 35-day statute of

limitations.” Barry, 357 Ill. App. 3d at 763, 828 N.E.2d at 1250. Similarly, the issue now before

us does not concern the failure to timely inform the widow of her right to appeal, but whether the

notice of the Board’s decision was fair and adequate. Thus, the limitation of Carver is not

applicable to the instant case, and we continue to adhere to the fundamental principles espoused

in Keller, Barry, and Coleman in analyzing the sufficiency of such notices by the Board.

Nonetheless, the Board maintains that the following notice fairly and adequately informed

plaintiff of its decision:

“As you are probably aware, a recent decision from the Appellate Court held that

certain widows who were able to establish that their husbands were permanently injured

from a duty related injury were entitled to receive a compensation widow’s annuity

pursuant to Section 6-140 of the Illinois Pension Code. * * *

After consideration of [the] evidence, the Retirement Board decided to grant you a

8

1-09-0497

compensation widow’s annuity under Section 6-140 of the Illinois Pension Code in the

amount of * * *, which sum represents 75% of the current salary attached to your

husband’s rank and grade at the time he was initially granted duty disability benefits.

This new annuity amount will be paid to your monthly beginning as of June 29, 2004, the

date of the above referenced Appellate Court decision. * * *

The decision of the Retirement Board granted the application you submitted on

August 26, 2005 for these increased annuity benefits. Although the Retirement Board’s

decision was favorable to you, you certainly have the right under the Illinois Pension

Code to contest that decision. If you decide to contest the Retirement Board’s decision

please be advised that you must file for an administrative review of the Retirement

Board’s decision within thirty five (35) days of the date of this letter.”

According to the Board, its letter here is distinguished from the letters in Keller, Barry,

and Coleman where it advised the plaintiffs of the Bertucci decision, specifically stating that

benefits would be paid under section 6-140 of the Pension Code, and also specified that the

benefits thereunder would be paid retroactive to the date of the Bertucci decision. However, the

misleading nature of the Board’s letters is readily apparent. First, although the Board referred to

section 6-140 and to Bertucci, it failed to inform plaintiffs that, in fact, its award to plaintiffs

would not be in compliance with that provision, nor with the Bertucci decision. Bertucci, of

course, correctly construed this provision, which clearly provides for benefits from the

firefighters’ date of death in their cases. Similar to Keller, Barry, and Coleman, the letter stated

the Board had decided to “grant” plaintiffs’ application for duty death benefits under section 6-

9

1-09-0497

140, but failed to notify plaintiffs that the Board in fact was denying a substantial portion of the

benefits they were seeking, in this case denying the death benefits retroactive to the dates of

plaintiffs’ husbands’ deaths. Further, the letters referred to Bertucci as a “recent decision” which

seemingly effected a new recognition of benefits under section 6-140, which, as we discuss

further below, is entirely inaccurate. Moreover, here the letter was even further misleading by

buttressing the seemingly favorable award by stating plaintiffs had the right to appeal “[a]lthough

the decision was favorable” to them.

The Board additionally claims that the initial notice of the hearing on plaintiffs’

applications prior to its decision in fact provided sufficient notice to comply with procedural due

process. However, we find even more of an anathema to procedural due process considerations

the Board’s advice that it was not necessary for plaintiffs to attend the hearing, and, further, they

had no need for an attorney. See Moore v. Board of Trustees of the Sanitary District Employees’

& Trustees Annuity & Benefit Fund, 157 Ill. App. 3d 158, 165-66, 510 N.E.2d 87, 93 (1987) (as a

matter of procedural due process, the board should have provided the plaintiff with notice and an

opportunity to be heard). We therefore readily reject the Board’s argument. Because the Board

clearly failed to meet its due process obligations to trigger the 35-day limit, the circuit court had

jurisdiction to entertain plaintiff’s complaint for administrative review.

II. Retroactive Payment of Section 6-140 Benefits

As noted, on June 29, 2004, this court in Bertucci held that the widows of firefighters

who died while receiving disability benefits for duty-related injuries were entitled to receive the

duty death benefits under section 6-140 of the Pension Code (40 ILCS 5/6-140 (West 2006)).

10

1-09-0497

Bertucci, 351 Ill. App. 3d at 373-74, 813 N.E.2d at 1026. Regardless of whether the firefighters’

ultimate cause of death was unrelated to their disability, if their injuries had permanently

prevented from subsequently resuming active service, under the statute they qualified for the

higher duty death annuity benefits. Bertucci, 351 Ill. App. 3d at 373-74, 813 N.E.2d at 1026.

The Board contends that its decision to pay plaintiffs’ section 6-140 benefits only

prospectively from the date of the Bertucci decision, rather than the date of plaintiffs’ husbands’

deaths, was correct because Bertucci established a new principle of law. Whether section 6-140

requires duty-related death benefits to commence on the firefighter’s date of death is a matter of

statutory construction which we review de novo. Hooker v. Retirement Board of the Firemen’s

Annuity & Benefit Fund, 391 Ill. App. 3d 129, 139, 907 N.E.2d 447, 457 (2009). See also

Coleman, 392 Ill. App. 3d at 387, 911 N.E.2d at 500, citing Marconi v. Chicago Heights Police

Pension Board, 225 Ill. 2d 497, 532, 870 N.E.2d 273, 293 (2006).

The Board submits that under the rule of Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L.

Ed. 2d 296, 92 S. Ct. 349 (1971), the Bertucci decision should be applied here only

prospectively. In Chevron, the Supreme Court held that a court must first determine whether the

decision sought to be applied prospectively only established a new principle of law, either by

overruling past precedent on which the parties have relied or by deciding an issue of first

impression, the resolution of which was not clearly foreshadowed. Chevron, 404 U.S. at 106-07,

30 L. Ed. 2d at 306, 92 S. Ct. at 355. However, in civil cases, an opinion issued by a court is

generally presumed to apply both retroactively and prospectively. Coleman, 392 Ill. App. 3d at

387, 911 N.E.2d at 500, citing Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 86, 679

11

1-09-0497

N.E.2d 1224, 1226 (1997). That presumption can be overcome if either the issuing court

expressly states that its decision will be applied prospectively or where a later court, under

certain circumstances, declines to give the previous decision retroactive effect to the parties

appearing before that tribunal. Coleman, 392 Ill. App. 3d at 387, 911 N.E.2d at 500, citing

Aleckson, 176 Ill. 2d at 86, 679 N.E.2d at 1226.

This court has clearly held that Bertucci did not state that it was to be applied

prospectively only, nor did it establish a new principle of law. See Coleman, 392 Ill. App. 3d at

388, 911 N.E.2d at 500. Rather, as we explained, Bertucci relied upon and followed an earlier

decision, Tonkovic v. Retirement Board of the Fireman’s Annuity & Benefit Fund, 282 Ill. App.

3d 876, 668 N.E.2d 1126 (1996). Coleman 392 Ill. App. 3d at 388, 911 N.E.2d at 500, citing

Tonkovic, 282 Ill. App. 3d 876, 668 N.E.2d 1126, and Bertucci, 351 Ill. App. 3d at 374-79, 813

N.E.2d at 1026-1030. The court in Tonkovic held that the plain language of section 6-140 “

‘provides that a surviving spouse is eligible for [section 6-140] benefits if the decedent

firefighter’s performance of an act or acts of duty prevented him from resuming active service

until his or her death.’ ” Coleman, 392 Ill. App. 3d at 388, 911 N.E.2d at 500, quoting Tonkovic,

282 Ill. App. 3d at 880, 668 N.E.2d at 1129. Tonkovic’s construction of the statute was merely

followed later by Bertucci. Coleman 392 Ill. App. 3d at 388-89, 911 N.E.2d at 501, citing

Hooker, 391 Ill. App. 3d at 141-42, 907 N.E.2d at 459, and Cunningham v. Retirement Board of

the Firemen's Annuity & Benefit Fund, 389 Ill. App. 3d 1065, 1076, 907 N.E.2d 463, 474 (2009).

As we specifically rejected the Board’s argument that Bertucci should only be applied

prospectively (see Coleman, 392 Ill. App. 3d at 389, 911 N.E.2d at 501), we have no difficulty

12

1-09-0497

rejecting the Board’s interpretation of Bertucci here.

Interestingly, both parties also dispute the application of Long v. Retirement Board of the

Firemen’s Annuity & Benefit Fund, 391 Ill. App. 3d 681, 909 N.E.2d 264 (2009), pet. for reh’g

denied, No. 1-07-3569 (June 12, 2009). In Long, we affirmed the circuit court’s judgment that

the Board should have awarded the plaintiff widow duty-related annuity death benefits under

section 6-140 of the Pension Code, but we determined the payment of these benefits should be

calculated from July 25, 1996, the date of the Tonkovic decision. Long, 391 Ill. App. 3d at 689,

909 N.E.2d at 271. Although we noted that the statute directs the Board to compute the annuity

from the date of the firefighter's death (Long, 391 Ill. App. 3d at 687, 909 N.E.2d at 270), we

found that “[t]his court's decision in Tonkovic was the first time it was apparent that the Board's

reliance on its interpretation of the statute and long-standing practice was misplaced.” Long, 391

Ill. App. 3d at 689, 909 N.E.2d at 271. Therefore, we determined “that the purpose and effect of

the new rule would be best served by not imposing a burden on the Board predating our holding

in Tonkovic.” Long, 391 Ill. App. 3d at 689, 909 N.E.2d at 271. Thus, we remanded to the

circuit court for the calculation of benefits retroactively only to the date of the Tonkovic decision.

Long, 391 Ill. App. 3d at 689, 909 N.E.2d at 271.

Plaintiffs posit that we should not follow the holding of Long because this decision did

not follow the Chevron test, nor did it overcome the presumption of the retroactivity of Tonkovic.

According to plaintiffs, Long misapplied the Chevron test because the holding that the language

of the statute was clear “necessarily means that the statute foreshadowed the result of the

decision in Tonkovic.” Plaintiffs take issue with the fact that in Long we simply stated that

13

1-09-0497

Tonkovic was a case of first impression, but did not also find its “resolution was not clearly

foreshadowed,” as required under the first prong of the Chevron analysis. See Chevron, 404 U.S.

at 106-07, 30 L. Ed. 2d at 306, 92 S. Ct. at 355. Plaintiffs further maintain that, while Tonkovic

was the first case to interpret section 6-140, the plain language of section 6-140 was merely

explained and, therefore, Tonkovic did not announce a new rule of law.

In response, the Board asserts that plaintiffs have forfeited their argument against the

application and reasoning of Long, because they failed to raise it below in the circuit court. The

Board maintains that plaintiffs actually presented the same argument adopted in Long, that

Tonkovic announced a new rule of law and that Bertucci applied retroactively only to the date of

the Tonkovic decision. On the contrary, our record shows that plaintiffs indeed cited to Long in

the proceedings below, but not for the proposition that Tonkovic should be applied prospectively

as a new rule of law. Rather, plaintiffs merely cited to Long’s specific holding rejecting Bertucci

as a new rule of law. Long’s rationale and determination regarding Tonkovic was not brought

before the circuit court by either party. Regardless of forfeiture considerations, however, under

our de novo review we analyze the holding of Long, as well as other precedent relevant for

resolution of this issue.

Implicit in our consideration is a recognition that our legislature amended section 6-140

of the Pension Code, effective July 12, 2001, by Public Act 92-0050, which was after the date

Tonkovic was decided. The legislature did not delete or change the second clause of section 6-

140 at issue here. See 40 ILCS 5/6-140 (2000); Pub. Act 92-0050, eff. July 12, 2001. Therefore,

we must indulge in the presumption that “the legislature was aware of judicial decisions

14

1-09-0497

concerning prior and existing law and legislation.” Kozak v. Retirement Board of the Firemen’s

Annuity & Benefit Fund, 95 Ill. 2d 211, 218, 447 N.E.2d 394, 398 (1983). Further, as plaintiffs

maintain, there is no legislative history to support the Board’s argument that either Bertucci or

Tonkovic presented a new rule of law in interpreting the statute. As plaintiffs cogently point out,

there had been no prior precedent interpreting the statute to the contrary. Additionally, are

cognizant of plaintiffs’ observation that Long was indeed decided without the parties squarely

addressing this issue. We agree with plaintiffs and conclude that, since the legislature did not

change this portion of section 6-140 after the Tonkovic decision, it deemed the judicial

interpretation in Tonkovic consistent with legislative intent and the plain meaning of the statute.

In Hooker, we summarized how section 6-140 clearly provides that a widow's duty death

annuity is computed from the “date of the event,” which is the date of the fireman's death, and

that this language had been codified in the Pension Code since as early as 1959. Hooker, 391 Ill.

App. 3d at 139-40, 907 N.E.2d at 457. We held that Tonkovic was the first case to construe this

statute and that Bertucci did not decide a new principle of law. Hooker, 391 Ill. App. 3d at

141-42, 907 N.E.2d at 459. In Cunningham, decided the same day as Hooker, we again held that

Bertucci did not announce a new rule of law and that the statute was clear that benefits were to be

paid from the date of death. Cunningham, 389 Ill. App. 3d at 1074-76, 907 N.E.2d at 473-74. In

so holding, we reviewed the clarity of this legislative enactment:

“Section 6-116 of the Pension Code also provides that the annuity begins on ‘the date of

the event upon which payment of annuity shall depend’ which, in the context of a

widow's annuity, is the date of the fireman's death. 40 ILCS 5/6-116 (West 2000).

15

1-09-0497

Section 6-140 of the Pension Code provides that a widow's duty death annuity is

computed at the time of the fireman's death. 40 ILCS 5/6-140 (West 2000). We note that

the ‘date of the event’ language, which triggers the payment of an annuity, ties the date of

the event to the date of the fireman's death. The aforementioned language has been

codified in the Pension Code since as early as 1959, and the statute was renumbered as

section 6-116 of the Pension Code in 1963. Currently, the ‘date of the event’ language is

codified in the Pension Code as section 6-116. Therefore, the Pension Code directs the

Retirement Board to compute the widows' duty death annuity from date of the fireman's

death. 40 ILCS 5/6-116, 6-140 (West 2000).” Cunningham, 389 Ill. App. 3d at 1073-74,

907 N.E.2d at 472.

Thus, notwithstanding Long, we have consistently determined that benefits indeed are to

be paid from the date of death. See Coleman, 392 Ill. App. 3d 380, 911 N.E.2d 493. We held

that “[b]ecause Tonkovic's construction of section 6-140 of the Pension Code was later followed

by this court in Bertucci, Bertucci neither established a new principle of law nor decided an issue

of first impression.” Coleman, 392 Ill. App. 3d at 388-89, 911 N.E.2d at 501, citing Hooker, 391

Ill. App. 3d at 141-42, 907 N.E.2d at 459, and Cunningham, 389 Ill. App. 3d at 1076, 907 N.E.2d

at 474. Accordingly, we affirmed the circuit court’s judgment ordering the Board to pay benefits

retroactively to the date of the plaintiff’s husband's death. Coleman, 392 Ill. App. 3d at 388-89,

911 N.E.2d at 501.

From the foregoing discussion, we discern that Long appears to be the only case holding

that Tonkovic announced a new rule of law under section 6-140, a decision which has not since

16

1-09-0497

been followed. We reiterate that Tonkovic was merely the first case to construe section 6-140; it

did not announce a new rule of law. We therefore again reject the Board’s argument that

Bertucci should be applied only prospectively, and we also reject the Board’s alternative

argument, based on Long, that benefits should be paid only from the date of the Tonkovic

decision.

We again hold that the statutory enactment of section 6-140 is plain and unambiguous.

Tonkovic, Bertucci, Hooker, and Coleman all clearly relied on the plain language of section 6-

140. Long notwithstanding, Tonkovic, Bertucci, Hooker, and Coleman manifest our abiding

determination that neither Bertucci nor Tonkovic announced a new rule of law. Thus, there is no

basis for the Chevron analysis. “Where the language of the statute is clear and unambiguous, the

only legitimate function of the courts is to enforce the law as enacted by the legislature.”

Cunningham, 389 Ill. App. 3d at 1076, 907 N.E.2d at 474, citing Midstate Siding & Window Co.

v. Rogers, 204 Ill. 2d 314, 320, 789 N.E.2d 1248, 1252 (2003), citing Henrich v. Libertyville

High School, 186 Ill. 2d 381, 391, 712 N.E.2d 298, 304 (1998). Foremost in our determination is

a recognition of our province to simply apply the statute as written. We affirm the circuit court’s

judgment awarding benefits from the date of death of plaintiffs’ deceased husbands.

III. Prejudgment Interest

The Board also argues that the circuit court erred in awarding plaintiffs prejudgment

interest. “ ‘The decision whether to award prejudgment interest is within the circuit court's sound

discretion, subject to reversal only upon abuse of discretion.’ ” Barry, 357 Ill. App. 3d at 771,

828 N.E.2d at 1257, quoting United States Fidelity & Guaranty Co. v. Alliance Syndicate, Inc.,

17

1-09-0497

286 Ill. App. 3d 417, 420, 676 N.E.2d 278, 280-81 (1997).

As to this issue, a recent opinion by our supreme court is dispositive. In Kouzoukas v.

Retirement Board of the Policemen's Annuity & Benefit Fund, 234 Ill. 2d 446, 917 N.E.2d 999

(2009), the Illinois Supreme Court held that duty disability benefits under public pension

agreements do not require prejudgment interest. In Kouzoukas, the court addressed the split of

authority within the appellate court regarding prejudgment interest. Kouzoukas, 234 Ill. 2d at

473-74, 917 N.E.2d at 1015. In turn, the court clarified our understanding that, absent any

suggestion of purposeful wrongdoing by the Board which would warrant an award of

prejudgment interest on equitable grounds, a statute must authorize the award. Additionally, in

analyzing section 2 of the Interest Act, the court concluded that public pension agreements under

the Pension Code are not “other instruments of writing” within the meaning of the Interest Act.

Kouzoukas, 234 Ill. 2d at 477, 917 N.E.2d at 1017. Accordingly, the court held that the plaintiff

was not entitled to prejudgment interest on the duty disability benefits paid under the public

pension agreement.

Similarly here, plaintiffs do not allege purposeful wrongdoing by the Board such that

equitable grounds would support the award of prejudgment interest. Furthermore, the Board’s

pension plan here similarly is not within the scope of section 2 of the Interest Act. We are thus

bound to follow the holding of Kouzoukas and conclude that plaintiffs here are not entitled to

prejudgment interest. As plaintiffs were awarded prejudgment interest, we must reverse and

vacate that portion of the circuit court’s judgment and modify it to reflect no award of

prejudgment interest.

18

1-09-0497

IV. Postjudgment Interest

Finally, the Board asserts that the circuit court erred in awarding postjudgment interest at

the rate of 9% instead of 6%. The Board maintains that the lower interest rate applies because

the Board’s pension fund qualifies as a governmental entity under section 2-1301 of the Illinois

Code of Civil Procedure (735 ILCS 5/2-1303 (West 2006)).

Section 2-1303 of the Code governs awards of postjudgment interest and provides, in

pertinent part, that when the judgment debtor is a governmental entity, the judgment shall draw

interest at the rate of 6% per annum, rather than the higher 9% rate. 735 ILCS 5/2-1303 (West

2006). In Barry, we determined that in order to qualify as a governmental entity, an entity must

perform a governmental function authorized by constitution, statute, or other law and be carried

out for the benefit of the general public. Barry, 357 Ill. App. 3d at 779-80, 828 N.E.2d at 1263.

We concluded that neither the Board nor its fund qualified as a governmental entity under section

2-1303 of the Code because neither performed a governmental function; rather, the Board's

primary function was to administer the pension fund created for the benefit of firemen. Barry,

357 Ill. App. 3d at 780, 828 N.E.2d at 1263-64.

We continue to follow Barry. The Board cites to no new precedent or change in our

Code of Civil Procedure. Thus, we find that the circuit court properly awarded plaintiff

postjudgment interest at the rate of 9%.

CONCLUSION

For all of the foregoing reasons, we vacate the portion of the circuit court’s judgment

awarding prejudgment interest and affirm the judgment as modified.

19

1-09-0497

Affirmed as modified.

FITZGERALD SMITH and HOWSE, JJ., concur.

20