# Reynolds v. The Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago

> Appellate Court of Illinois · May 7, 2013 · 990 N.E.2d 337

URL: https://www.frixlaw.com/law-library/cases/3148398

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** May 7, 2013
- **Citations:** 990 N.E.2d 337; 2013 IL App (1st) 120052
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

ILLINOIS OFFICIAL REPORTS
Appellate Court

Reynolds v. Retirement Board of the Firemen’s Annuity & Benefit Fund,
2013 IL App (1st) 120052

Appellate Court PAMELA REYNOLDS, as Special Administrator of the Estate of Doris
Caption Faust, Deceased, Plaintiff-Appellant, v. THE RETIREMENT BOARD
OF THE FIREMEN’S ANNUITY AND BENEFIT FUND OF
CHICAGO, Defendant-Appellee.

District & No. First District, Second Division
Docket No. 1-12-0052

Filed May 7, 2013

Held Although plaintiff’s deceased was notified prior to her death that she was
(Note: This syllabus entitled to an increase in the annuity she had been receiving as the widow
constitutes no part of of a fireman, she never completed the paperwork necessary to effect the
the opinion of the court increase, and the assignment sections of the Illinois Pension Code and the
but has been prepared firemen’s pension fund prohibited the assignment of any potential lawsuit
by the Reporter of to exercise the rights the deceased failed to pursue during her lifetime;
Decisions for the therefore, the claim for increased benefits abated upon her death.
convenience of the
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-46510; the
Review Hon. Michael B. Hyman, Judge, presiding.

Judgment Affirmed.
Counsel on Donald T. Bertucci, Ltd., of Chicago (Donald T. Bertucci, of counsel), for
Appeal appellant.

Burke, Burns & Pinelli, Ltd., of Chicago (Mary Patricia Burns and
Vincent D. Pinelli, of counsel), for appellee.

Panel JUSTICE QUINN delivered the judgment of the court, with opinion.
Presiding Justice Harris and Justice Simon concurred in the judgment and
opinion.

OPINION

¶1 I. INTRODUCTION
¶2 The administrator of the estate of a decedent who was receiving a widow’s annuity sued
the Retirement Board of the Firemen’s Annuity and Pension Benefit Fund of Chicago (the
Board) on behalf of the estate claiming that the decedent was entitled to a larger pension and
sought to recoup the difference between what the decedent received and what the
administrator alleged decedent was entitled to for the benefit of the heirs of the estate. The
circuit court rejected the administrator’s complaint and ruled that any right to seek payments
of additional amounts under the pension fund in question abated when the widow/annuitant
died and her estate could not be assigned those rights and had no survival rights to pursue
the action. This timely appeal followed.

¶3 II. BACKGROUND
¶4 Harry Faust, born November 22, 1916, and Doris Faust, born January 25, 1922, were
married on January 3, 1949. Two years later, in 1951, Henry Faust began his employment
with the Chicago fire department as a fireman. He also was a member of the Firemen’s
Annuity and Benefit Fund of the Illinois Pension Code (the Firemen’s Pension Fund). 40
ILCS 5/6-101 to 6-226 (West 2010). In 1959 and 1960, Harry Faust suffered smoke
inhalation and in 1964 he injured both knees while on the job. In 1970, he applied for a duty
disability pension relating to those injuries. His application was approved on May 15, 1970
and he began receiving a duty disability pension subject to annual medical reexamination.
He was never declared permanently disabled. Harry Faust received duty disability benefits
for almost seven years, until April 6, 1977, when he died at age 60 from causes that were not
related to his on-the-job injuries.
¶5 His widow, Doris Faust, on her own behalf and on behalf of the two children from their
marriage, applied for and was granted a widow’s annuity on April 29, 1977. On September

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29, 1979, Doris Faust married Siegmund Daum. This event terminated her right to receive
a widow’s annuity under the Firemen’s Pension Fund as it existed in 1979 (Ill. Rev. Stat.
1991, ch. 108½, ¶ 6-143 (amended by Pub. Act 89-136, § 15 (eff. July 14, 1995))). Doris
Faust Daum’s remarriage to Siegmund Daum ended in divorce in 1981.
¶6 Approximately 14 years after Doris Faust’s divorce, in 1995, the Illinois legislature
amended the Firemen’s Pension Fund to allow a widow who remarried, but then divorced,
to apply for reinstatement of her widow’s annuity from her deceased, prior husband/fireman.
Id. (now 40 ILCS 5/6-143(a) (West 2010)). Because this amendment was to be applied
retroactively, the Board located and notified Doris Faust of this amendment. Doris Faust
applied for reinstatement and the application was granted in April 1996. Doris Faust
continued to receive this widow’s annuity until her death on December 25, 2009.
¶7 Aside from receipt of her monthly annuity, Doris Faust, on occasion sent
communications to the Board. For instance both in 2002 and again, in 2003, she informed
the Board of her new resident addresses.
¶8 By letter dated August 3, 2005, the Board sent Doris Faust a letter informing her of her
right to seek a duty-related widow’s annuity pursuant to this court’s opinion issued in
Bertucci v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368
(2004).1
¶9 The Board’s letters, sent via regular and certified mail to Doris Faust both on August 3,
2005 and again on August 19, 2005, stated, in pertinent part, as follows:
“A recent decision by the State of Illinois Appellate Court *** held that widows of
firefighters that died while in receipt of Duty Disability Benefits, whose duty related
injuries, though not directly the cause of their death, were of such a nature that the
firefighters were permanently prevented from subsequently resuming active service, may
be entitled to receive the higher duty death annuity benefit available under ILCS 40, Act
5, Section 6-140. *** These Duty Death Widow Benefits are not automatic. The court
requires that widows must file an application with the Board and be able to establish
through medical evidence and testimony that the injury for which he was granted Duty
Disability Benefits, but for his death, would have prevented him from subsequently ever
resuming service with the Chicago Fire Department.” (Emphasis added.)
¶ 10 The Board attached a completed application to the notices for Doris Faust to sign and
return. When she did not respond to the Board’s first notice, the Board sent her a second
notification, again with a completed application attached, on August 19, 2005, and again by
registered and certified mail. Doris Faust personally signed for the mailing, certifying that
she received delivery. Doris Faust never acted on the information in the two notifications or
sent in the completed application attached to the letters or otherwise contacted the Board
regarding the possibility of receiving an increase in her monthly widow’s annuity.

1
Prior to the Bertucci opinion, the Board awarded duty-related widow(er)’s annuities only
if the spouse died from the duty-related injuries he or she received while on active duty. In paragraph
7 of the instant complaint, plaintiff alleges that Harry Faust died from condition(s) that “were not
related to the injuries that he had incurred on active duty.”

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¶ 11 There is no evidence in the record that Doris Faust, who was 82 at the time she received
these two notifications and applications from the Board, was legally incompetent or that any
of her six adult children or anyone else was given power of attorney over either her financial
or medical affairs. The only information on this topic in the record is an exhibit to a pleading.
It is a four-sentence letter dated February 28, 2010, two months after Doris Faust’s death,
signed by a former treating physician who opined that Doris Faust was unable to care for
herself by 2005, and that, two years later, in 2007 she moved into Winchester Home. There
are no attachments, such as medical records, to support the opinion contained in this letter
nor is any explanation given of the level of care that Doris Faust began to require that may
have precipitated her 2007 move into Winchester Home. There is also no description of the
type of facility Winchester Home is and no location is provided.2
¶ 12 What we do know is that neither Doris Faust nor anyone acting on her behalf took any
action following the Board’s two August 2005 notifications until her death (four years and
five months later) regarding the possibility that Doris Faust might have been entitled to an
increase in her widow’s annuity from her first husband which was reinstated in 1996.
¶ 13 The first time the Board heard from anyone regarding the topic of its 2005 notifications
to Doris Faust was when one of her sons, Vern, not listed as one of the two children from her
first marriage3, contacted the Board in January 2010. Vern indicated that he was contacted
by an attorney regarding the issue that Doris Faust may have been entitled to a higher
annuity. The Board responded to Vern by indicating that it had informed Doris Faust of this
possibility back in August 2005 but that no one ever responded to their notifications.
¶ 14 Thereafter, 10 months after Doris Faust’s death, on October 26, 2010, Pamela Reynolds
was appointed special administrator of the estate of Doris Faust. Reynolds filed the petition
on behalf of herself and Doris Faust’s five other adult children and stated in paragraph 3 of
the petition that “[t]he only remaining asset of decedent is a cause of action against *** The
Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago for the alleged
failure to pay firefighter’s widow annuity benefits to the decedent personal [sic] based on the
death of her firefighter husband.” On that same day, Pamela Reynolds filed a four-count
complaint on behalf of the estate of Doris Faust for: (1) civil enforcement of the Pension

2
Although Doris Faust died owning no assets and the only asset listed for her estate is this
potential lawsuit, the estate administrator did not name the State of Illinois as a party with a potential
interest. Doris Faust was admitted into Winchester Home from 2007 until her death. If she was an
Illinois medicaid recipient, the State of Illinois medicaid division should have been notified so it
could recover monies paid out for her institutionalized care in the event the lawsuit was successful.
3
Only one daughter, Pamela born in 1959, and one son, Michael born in 1962, appear as
children born to Harry and Doris on Doris Faust’s 1977 application for a widow’s annuity. A total
of six adult children of Doris Faust seek to share in any recovery of pension monies accruing since
1977 until Doris Faust’s death in December 2009, together with prejudgment and postjudgment
interest.

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Code; (2) a request for administrative review4; (3) conversion; and (4) constructive trust, and
she requested that the estate be paid all amounts that Doris Faust may have been entitled to
receive but did not receive during her lifetime.
¶ 15 The circuit court ruled that any rights of the widow/annuitant, Doris Faust, had abated
when she died. On a motion for reconsideration where the administrator cited a Rule 23
unpublished order of this court in support of her position that the widow’s rights under the
pension fund survived her death (Barry v. Retirement Board of the Firemen’s Annuity &
Benefit Fund, Nos. 1-06-3036, 1-07-0730 cons. (2009) (unpublished order under Supreme
Court Rule 23), the circuit court found the Barry case to be procedurally quite different from
the instant case and that it did not provide support for the administrator’s position that an
administrator of an estate could institute an action following the death of the
widow/annuitant.
¶ 16 For the reasons stated below, we affirm the circuit court’s December 5, 2011 order which
denied the special administrator, Pamela Reynold’s complaint in its entirety and the
December 29, 2011 order which denied her motion for reconsideration.

¶ 17 III. ANALYSIS
¶ 18 A. Standard of Review
¶ 19 Plaintiff has suggested no standard of review. Defendant provided an analysis of the
various standards of review for administrative decisions. There was no administrative
decision by the Board for this court to review in this case.
¶ 20 The issue of abatement and nonassignability of the decedent’s widow’s annuity benefits
was raised for a second time in the parties’ briefs in support and in opposition to the
surviving count of a request for administrative review. The circuit court found this issue
dispositive and dismissed plaintiff’s complaint.
¶ 21 Quite simply, the standard of review this court applies when reviewing a circuit court’s
dismissal of a complaint is de novo. People ex rel. Sklodowski v. State, 284 Ill. App. 3d 809,
815 (1996) (pension case). In considering the dismissal, this court must view the allegations
in plaintiff’s complaint in the light most favorable to the plaintiff. If it appears that no set of
facts could be proven which would entitle the plaintiff to relief, the dismissal should be
affirmed. Id. The material facts in the instant case are not in dispute. The resolution of this
case depends on the legal question of the proper interpretation of the statutory provisions
governing annuity benefits for widows of firefighters and receive de novo review, as well.
Bertucci v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368,

4
The record does not indicate that any administrative action was ever filed with the Board
by Pamela Reynolds, as administrator of the estate of Doris Faust, seeking any monies Doris Faust
may have been entitled to during her lifetime for the benefit of and on behalf of the heirs of the
estate. Instead, the administrator filed her initial action in circuit court. There exists no
administrative decision on the administrator’s claim for either the circuit court or this court to
review. Defendant never raised a failure to exhaust administrative remedies in its appellate brief for
this count.

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370-71 (2004).

¶ 22 B. Abatement and Nonassignability
¶ 23 The preliminary issue that must be resolved is whether an administrator of the estate of
a former, deceased recipient of an annuity paid pursuant to the Firemen’s Pension Fund can
institute a cause of action against the Board on behalf of the estate to benefit the estate’s
heirs. In other words, as it relates to the instant case, can Doris Faust’s right to apply for
enhanced widow’s benefits, which she was informed of in 2005 but never pursued, be
assigned to and activated in 2010 by the administrator of her estate following Doris Faust’s
death for the benefit of the heirs of the estate?
¶ 24 Illinois statutory law governs the administration of the Firemen’s Pension Fund from
which Doris Faust received her widow’s annuity benefits. That law clearly provides that no
“annuity or other benefit” under the Illinois Pension Code can be alienated and “shall not be
assignable.” 40 ILCS 5/2-154 (West 2010). This prohibition of assignment by any pensioner
or annuitant of any benefit is specifically reiterated in the Firemen’s Pension Fund. 40 ILCS
5/6-213 (West 2010). These sections provide the answer to the preliminary issue raised by
this lawsuit. Illinois law specifically prohibits the assignment of any annuity or any benefit,
such as a right to civil enforcement or administrative review. This court finds that the
language “or other benefit” under the Illinois Pension Code significant. A right to have a
widow’s annuity benefit reviewed to determine if and by how much it should be recalculated
is a benefit that cannot be assigned pursuant to statute. The widow’s potential increased
amount would constitute a part of the annuity benefit to be received by the widow from the
Firemen’s Pension Fund. Any resulting increase would become a part of the annuity benefit
of the widow. Construing the clear language of the statute, the assignment sections of the
Illinois Pension Code and the Firemen’s Pension Fund prohibit any assignment of any
potential lawsuit to exercise the rights of the deceased annuitant that he/she did not pursue
while alive.
¶ 25 The primary objective in construing a statute is to determine and give effect to the intent
of the legislature. The most reliable indicator of legislative intent is the language of the
statute, given its plain and ordinary meaning. The court may consider the reason for the law,
the problem sought to be remedied, the purpose to be achieved, and the consequences of
construing the statute one way or another. People v. Hunter, 2013 IL 114100, ¶ 13.
¶ 26 Here, the section of the statute relating to assignment reads, in pertinent part, as follows:
“Assignment. Except as provided in this Article, all moneys in the fund created by this
Article, and all securities and other property of the System, and all annuities and other
benefits payable under this Article, and all accumulated contributions and other credits
of participants in this system, and the right of any person to receive an annuity or other
benefit under this Article, or a refund or return of contributions, shall not be subject to
judgment, execution, garnishment, attachment or other seizure by process, in bankruptcy
or otherwise, nor to sale, pledge, mortgage or other alienation, and shall not be
assignable.” 40 ILCS 5/2-154 (West 2010).
¶ 27 This statutory language strongly indicates that the Illinois legislature’s intent in creating

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the state and municipal employee pension funds, of which the Firemen’s Pension Fund is a
part, was to prevent the annuitants from assigning their rights to the proceeds of the funds
“or other benefit” under any circumstances, including the right to pursue possibly unpaid
benefits.
¶ 28 Pamela Reynolds, the administrator of Doris Faust’s estate, does not have the right to
pursue any pension benefits that may have been owed to Doris Faust which Doris Faust never
pursued, collect those funds and assign them to the estate she represents. Put another way,
Pamela Reynolds did not create a valid cause of action when she pursued this cause of action
after Doris Faust’s death and alleged that Doris Faust may have had additional rights to funds
from the Firemen’s Pension Fund, then self-assign decedent Doris Faust’s right to pursue
those benefits to herself as administrator of the estate and file a cause of action to recoup any
unpaid pension benefits for the benefit of the heirs of decedent’s estate.
¶ 29 Furthermore, pursuant to statute, a civil enforcement action against the Firemen’s
Pension Fund may only be brought by “a participant, beneficiary or fiduciary” as those terms
are defined in the statute. 40 ILCS 5/1-115 (West 2010). The participant in the fund, Harry
Faust, died in 1977. Pamela Reynolds and Michael Faust, the two now-adult children from
the marriage of Harry and Doris Faust, have long since ceased to be beneficiaries under the
Firemen’s Pension Fund when they reached their majority. 40 ILCS 5/2-121.1 (West 2010).
The other four adult children who are members of Doris Faust’s estate were not fathered by
the participant Harry Faust and were never beneficiaries of the fund. Any right to pursue a
cause of action was finally extinguished when the sole remaining beneficiary and widow,
Doris Faust, died in 2009. Pamela Reynolds is not, nor does she allege in the instant
complaint that she is, a fiduciary of the pension fund. 40 ILCS 5/1-101.1 (West 2010)
(fiduciary defined). In fact, Pamela Reynolds does not allege in her civil enforcement
complaint that she falls into the category of “participant, beneficiary or fiduciary,” the only
three categories of people who are statutorily allowed to file a civil enforcement action
besides the Illinois Attorney General. 40 ILCS 5/1-115 (West 2010). This dooms her cause
of action.
¶ 30 Plaintiff cites a Rule 23 unpublished order of this court for the proposition that the
prospect for possible unpaid increases in widow’s benefits survive the widow’s death and
can be pursued by the decedent’s estate. Barry v. Retirement Board of the Firemen’s Annuity
& Benefit Fund, Nos. 1- 06-3036, 1-07-0730 cons. (2009) (unpublished order under Supreme
Court Rule 23). The Rule 23 order, even if it had precedential value, does not support
plaintiff’s theory. The plaintiff, Barry, filed her claim for increased pension benefits due her
pursuant to the Bertucci decision (Bertucci v. Retirement Board of the Firemen’s Annuity &
Benefit Fund, 351 Ill. App. 3d 368 (2004)) while she was alive. The circuit court determined
that plaintiff was entitled to the increased section 6-140 benefits paid retroactively from the
date of her husband’s death, plus prejudgment and postjudgment interest, and costs. The
Board appealed this judgment. During the pendency of the appeal, plaintiff died. The
appellate court remanded the matter to the Board to conduct an evidentiary hearing to
determine whether plaintiff’s husband had been permanently injured as required by the
holding in Bertucci, 351 Ill. App. 3d at 372-73. Barry v. Retirement Board of the Firemen’s
Annuity & Benefit Fund, 357 Ill. App. 3d 749, 766 (2005). On remand, the Board conducted

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an evidentiary hearing in December of 2005. In March of 2006, the Board denied Barry’s
request for increased section 6-140 benefits, claiming that the annuity did not survive upon
her death, could not be assigned, and abated upon her death. Barry v. Retirement Board of
the Firemen’s Annuity & Benefit Fund, Nos. 1-06-3036, 1-07-0730 cons., order at 6 (2009)
(unpublished order under Supreme Court Rule 23). Barry filed a motion in circuit court to
enforce the appellate court’s 2005 decision. The circuit court granted the Board’s motion to
dismiss because plaintiff had died and her son lacked standing to sue. Id. at 7. On appeal of
that order, this court noted that “if a party dies while a matter is pending on appeal, Supreme
Court Rule 366(a)(2) governs and provides, in pertinent part, that in ‘all appeals the
reviewing court may, in its discretion, and on such terms as it deems just, *** allow
substitution of parties by reason of *** death *** on such reasonable notice as it may
require.’ 155 Ill. 2d R. 366(a)(2).” Id. at 10. This court then appointed plaintiff’s son as heir
and executor of plaintiff’s estate, “as special representative in substitution for the deceased.”
Id. at 12. This court then rejected the Board’s arguments that we lacked subject matter
jurisdiction and we declined to dismiss the appeal.
¶ 31 Doris Faust, in the instant case, never filed a claim in her lifetime for the increased
pension benefits which her estate now seeks. Barry received a circuit court judgment in her
favor while she was alive. Therefore, Barry’s claim was no longer merely a possible pension
benefit that could not be assigned; it became a judicial reality via the judgment that was
entered in her favor. Judgments entered in favor of litigants while they are alive survive their
death. In Illinois, as in most states, judgments are assignable. Northwest Diversified, Inc. v.
Desai, 353 Ill. App. 3d 378 (2004); see generally 50 C.J.S. Judgments § 834, at 160 (2009).
The Barry case was procedurally quite different from the instant case. No judgment was
entered in favor of Doris Faust during her lifetime that could be assigned to her estate.
¶ 32 One of the most important public policy matters facing many state and municipal
governments today is how to assure that individuals who have spent their worklife in public
service will have adequate annuity income from funds not unlike the Firemen’s Pension Fund
to meet their needs and/or the needs of their widow(er) and children during their retirement
years. This decision to enforce the legislation, as written, is consistent with the policy
considerations that the funds established are fair, effective and, most importantly, remain
financially sound and solvent in providing retirement income to retirees, their
widows/widowers and orphans, as well. The adult children who make up the estate of Doris
Faust, four of whom were not conceived during the marriage of Harry and Doris Faust, have
no right to an assignment of any benefit Doris Faust potentially may have had during her
lifetime to pursue any possible increase in her monthly annuity payments. Doris Faust was
statutorily barred from assigning her right to pursue additional funds to others for their
benefit during her lifetime. It follows that the administrator of the estate cannot self-assign
this right to the estate after her death as it belonged solely to Doris Faust as an unassignable
benefit which was extinguished forever upon Doris Faust’s death.
¶ 33 Additionally, any statutory right to pursue a civil enforcement action or administrative
review with the Board does not survive Doris Faust’s death because the enabling statute does
not provide for survival. See Froehlich v. Matz, 93 Ill. App. 3d 398, 410 (1981)
(shareholder’s action against promoter of unregistered securities pursuant to Securities Act

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did not survive his death as the Securities Act contained no survival provision); In re
Application of Goldberg, 32 Ill. Ct. Cl. 1068 (1979) (because Crime Victim’s Compensatory
Act was silent on survival of action, claimant’s action terminated and abated upon death of
claimant). The Illinois Survival Act allows a decedent’s representative to maintain only
certain prescribed causes of action (755 ILCS 5/27-6 (West 2010)), and this type of action
is not one of them. Not only does the Firemen’s Pension Fund not provide for either
assignment or survival of the right or benefit of a widow/annuitant’s representative to pursue
an increase in annuity payments under a pension plan after the widow/annuitant’s death, it
is also not one of the rights listed in the Illinois Survival Act that survive after death. 755
ILCS 5/27-6 (West 2010).
¶ 34 Plaintiff argues that pension rights are in the nature of contract rights and therefore
plaintiff’s rights did not abate upon her death. Plaintiff makes this argument even though she
never alleged a breach of contract action in her four-count complaint filed with the circuit
court. Plaintiff cites Thompson v. Retirement Board of the Policemen’s Annuity & Benefit
Fund, 379 Ill. App. 3d 498 (2008), and Bell v. Retirement Board of the Firemen’s Annuity
& Benefit Fund, 398 Ill. App. 3d 758 (2010), as support for this argument. However, the
complaint in Thompson was filed by a participant who was alive throughout the litigation
process. The complaint in Bell was brought by a beneficiary who was alive throughout the
litigation process. Neither of these cases supports plaintiff’s argument that the estate of a
beneficiary may bring a civil enforcement action or a breach of contract claim against the
Board.

¶ 35 C. Plaintiff’s Claim that a Successor Circuit Court Judge is Prohibited From
Ruling on an Issue Ruled on by the Prior Circuit Court Judge
¶ 36 There were two separate circuit court judges who rendered decisions in the case below.
The first judge ruled on defendant’s first motion to dismiss and in an order dismissed the
entire case except for plaintiff’s request for administrative review. Although the Board
argued the inability to assign Doris Faust’s pension benefits to anyone pursuant to statute,
the first judge made no ruling on that issue. Plaintiff argues that the first judge impliedly
ruled on that issue when he denied the motion to dismiss as to her request for administrative
review. The case was administratively reassigned to a second circuit court judge. When the
Board raised the lack of statutory authority to assign pension benefits to anyone in a
subsequent pleading before the second judge, that judge specifically ruled in favor of the
Board and issued a memorandum opinion and order and dismissed the remaining portion of
plaintiff’s claim using his reasoning and analysis on that specific issue to do so. Plaintiff
argues that the successor judge could not rule on the assignment issue because of the prior
judge’s denial by implication. Plaintiff essentially argues that the first circuit court judge’s
implied ruling became the law of the case that could not be overturned by a successor circuit
court judge.
¶ 37 Our supreme court addressed this issue very recently holding:
“[W]here, as here, multiple judges and rulings are involved, we are mindful of precedent
recognizing the circuit court’s inherent power to review, modify, or vacate interlocutory

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orders while the court retains jurisdiction over the entire controversy. For example, this
court has repeatedly held that the circuit court has the inherent power to modify or vacate
an interlocutory order granting summary judgment any time before final judgment. Rowe
v. State Bank of Lombard, 125 Ill. 2d 203, 213-14 (1988). ‘In a variety of contexts, this
court has stated that an interlocutory order may be reviewed, modified or vacated at any
time before final judgment, and it is of no consequence that the original order was
entered by another circuit judge.’ Balciunas v. Duff, 94 Ill. 2d 176, 185 (1983).”
Hernandez v. Pritikin, 2012 IL 113054, ¶ 42.
¶ 38 We hold that it was within the successor circuit court judge’s province to rule on the
abatement and assignment issue in this case.

¶ 39 D. Plaintiff’s Claim That Notice to Doris Faust of a Possibility
of an Increase in Her Pension Was Defective
¶ 40 The plaintiff complains that the 2005 procedure the Board utilized to implement the
Bertucci opinion was lacking. Plaintiff argues that the Board was obligated to unilaterally
recalculate Doris Faust’s widow’s pension without requiring that she submit an application
following the notice that she may be entitled to increased benefits and without a hearing
before the Board to determine if she could meet her burden of proof as required in the notice
sent to her in August 2005. Even if we were to rule that an assignment of the decedent’s
beneficial interest of past benefits can occur, which we do not, this court is loathe to
judicially usurp and create an administrative procedure for the Board to follow in carrying
out its fiduciary duties. It appears that the administrative procedure established by the Board
to implement Bertucci had a complete success rate in informing everyone who could be
potentially affected, including the plaintiff. Bell v. Retirement Board of the Firemen’s
Annuity & Benefit Fund, 398 Ill. App. 3d 758, 761 (2010).
¶ 41 Furthermore, there is no evidence in the record that the Board acted in any way other than
a responsible manner. Its past dealings with Doris Faust highlight the Board’s careful
exercise of its fiduciary duties. Doris Faust’s widow’s annuity was statutorily terminated due
to her remarriage in 1979. When the statute was amended almost 16 years later to allow
remarried but divorced widows to reinstate their widow’s annuity from their first spouse, and
despite the lack of contact between Doris Faust and the Board for 16 years, the Board found
Doris Faust and informed her of her new right to apply to receive reinstatement of her
widow’s annuity. Doris Faust applied and was reinstated as an annuitant.
¶ 42 Computations of annuities are highly individualized calculations. Review of medical
records are just as individualized. As indicated by the notice that was sent to Doris Faust in
August 2005, both financial and medical reviews by the Board were necessary for a
determination in this case. The fact that the Board, in carrying out its fiduciary duties owed
to the entire fund participants and beneficiaries, wished to adjudicate each potential
beneficiary of the Bertucci decision individually and give each person notice and an
opportunity to be heard on the matter is not so out of line as to require judicial intervention.
Clearly, the increase in widows’ annuities were not automatic. The potential beneficiaries
of the Bertucci decision had sufficient procedural safeguards, especially when balanced with

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the duties of the Board to see that any financial calculations, medical reviews and other
administrative spadework to be performed by the pension fund administrators are done
accurately and in conformity not only with Bertucci, but with the other sections of the
Pension Code as they are applied to each individual and their individual circumstances.
¶ 43 The plaintiff’s request that we hold the Board’s procedures were defective is without
merit. Given that the annuitant has been deceased since 2009, it would be impossible to show
impending harm sufficient for this court to judicially intervene and to provide equitable
relief. However, given our holding regarding the nonassignability of decedent’s pension
benefits, the plaintiff-administrator of decedent’s estate, as a nonparticipant, nonbeneficiary
and nonfiduciary in the pension fund has no recourse with either the Board or the courts on
the matter of whether Doris Faust received all the pension benefits she was entitled to during
her lifetime, including whether notice and an opportunity to be heard were proper.
¶ 44 It is the duty of the Board members to ensure that public employee-retirees and their
dependents are the actual recipients of retirement income. To allow the heirs of an
annuitant’s estate to sue the Board would be tantamount to declaring that the heirs have some
surviving property interest in the decedent’s annuity. Doris Faust could neither assign her
widow’s annuity nor could she have made a testamentary transfer of her widow’s annuity to
anyone. Four of her adult children were never covered under the pension annuity as
beneficiaries. We cannot judicially allow for lawsuits such as the instant case where the
Illinois statute does not allow it, especially where there is a certainty that any funds that may
be recovered from the Firemen’s Pension Fund would be diverted to support unrelated
strangers to the original participant/fireman, Harry Faust.
¶ 45 Our conclusion here today is a simple one–the adult children of Doris Faust have no
cognizable claim under the Firemen’s Pension Fund to share in any of Doris Faust’s
retirement benefits. They are not participants, beneficiaries or fiduciaries as defined by
statute.
¶ 46 Our decision today is consistent with the concerns and principles expressed by the United
States Supreme Court in Boggs v. Boggs, 520 U.S. 833 (1997), when it did not allow the
testamentary transfer of a wife’s interest in her survivor’s annuity to her sons. While our case
involves the estate administrator’s attempted assignment of a spouse’s potential, unawarded,
partial interest in a widow’s annuity after the annuitant’s death to all surviving heirs with this
lawsuit to recover that potential interest for their benefit, the concerns to protect the
Firemen’s Pension Fund to ensure there will always be a stream of income for surviving
spouses and beneficiaries are the same.

¶ 47 IV. CONCLUSION
¶ 48 For the forgoing reasons, the judgment of the circuit court is affirmed.

¶ 49 Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3148398. Public record. Not legal advice.