# Hickey v. State ex rel. Huber > Court of Claims of Illinois · May 23, 1995 · 48 Ill. Ct. Cl. 376 URL: https://www.frixlaw.com/law-library/cases/8620557 ## Case - **Full name:** Joan Hickey, Individually and as Special Administrator for the Estate of Richard J. Hickey v. The State of Illinois ex rel. State Trooper Robert A. Huber - **Court:** Court of Claims of Illinois - **Decided:** May 23, 1995 - **Citations:** 48 Ill. Ct. Cl. 376; 1995 Ill. Ct. Cl. LEXIS 59 - **Precedential status:** Published - **Opinion:** On rehearing by Sommer - **Judges:** Sommer - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8620557 ## Opinion text ORDER DENYING PETITION FOR REHEARING Sommer, C.J. Claimants petition for rehearing argues: (1) that her circuit court filing satisfied the limitations provisions of section 22(h) of the Court of Claims Act even though there was no concurrent filing with this Court; (2) in the alternative, that section 13 — 217 of the Code of Civil Procedure permitted her late filing in this Court notwithstanding our reasoned opinion to the contrary; and (3) that, should she fail to succeed with her first two arguments, she has been “victimized” by the Illinois Supreme Court and must therefore be allowed to pursue her untimely claim herein. Section 22(h) Argument While it is true that there is dicta from an Illinois Supreme Court opinion which would purportedly bolster Claimant’s first argument, scrutiny of the case law on which that dicta is premised reveals it to be without a viable foundation. The language in question is from Williams v. Medical Center Commission (1975), 60 Ill. 2d 389, 396 , 328 N.E.2d 1 , 5: “Our decision in Roth v. Northern Assurance Co. [citation omitted] is authority for the proposition that the filing of the present action, although it was filed in the Circuit Court rather than in the Court of Claims, satisfies any statutory requirement of notice and filing.” This dicta cites to a portion of Roth which, in turn, cited to Geneva Construction Co. v. Martin Transfer and Storage Co. (1954), 4 Ill. 2d 273, 289-90 , 122 N.E.2d 540, 549 . Neither Geneva Construction nor Roth involved a Court of Claims matter. Geneva Construction concerned the propriety of a post-limitations amendment of a circuit court pleading1 to substitute a new party plaintiff based on principles of common law subrogation, and the supreme courts analysis was limited to a straightforward review of the procedural statute involved. It must be emphasized that the statute in question in Geneva Construction allowed only for a post-limitations amendment of a pleading, not an amendment of the forum. Roth, as explained in our initial opinion, dealt with the intricacies of a now defunct predecessor to the present section 13 — 217 of the Code of Civil Procedure, a totally different procedural statute than was at issue in Geneva Construction. Nonetheless, the Roth Court rationalized that the purposes of the two statutes were similar and, using equitable powers, held: “[W]hen a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of the opinion that a liberal rule [circumventing the statute of limitations] should be applied.” Roth, 32 Ill. 2d at 49-50, 203 N.E.2d at 420, quoting from Mr. Justice Holmes in a United States Supreme Court opinion. Unlike the United States and Illinois Supreme Courts, this Court of Claims is devoid of equitable jurisdiction; our limitations provisions are jurisdictional and cannot be disregarded under any circumstances. Accordingly, despite the Supreme Court dicta to the contrary, we are unable to recognize Claimants erroneous circuit court filing as a “surrogate” filing with this Court. Claimant simply did not meet the filing deadline prescribed by section 22(h) of the Court of Claims Act, and she is therefore barred from now bringing her claim to this Court. 1 Geneva Construction involved a predecessor of the present section 2 — 616 of the Code of Civil Procedure: “[The amendment] shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted if the time prescribed or limited had not expired when the original pleading was filed and if * * “ the cause of action ’*'in the amended pleading grew out of the same transaction or occurrence set up in the original pleading “ * Section 13 — 217 Argument The Courts previous, thorough analysis of section 13 — 217 of the Code of Civil Procedure is self-explanatory, and Claimant offers no new argument to substantively challenge it. Further, there is additional precedent supporting our ruling: Nikelly v. Board of Trustees (1992), 45 Ill. Ct. Cl. 336, 338 . Thus, we again find that section 13 — 217 did not allow Claimant additional time to file her claim with this Court. “Victimization” Argument Claimant complains bitterly about the application of Currie v. Lao (1992), 148 Ill. 2d 151 , 592 N.E.2d 977 to her circuit court case, but such an argument can only be properly directed to the reviewing courts, if any, presently having jurisdiction over those issues; they are not part of the instant Court of Claims litigation. From a practical standpoint, we do note that Claimant and her husband had filed preliminary notices with this Court and the Attorney General pursuant to section 22 — 1 of the Court of Claims Act. Thus, they were aware of the potential Court of Claims jurisdiction and could have easily proceeded to concurrently file a timely claim in this Court when initiating the Cook County case. Such a strategy is commonly employed by counsel practicing before this Court, and it would have protected Claimant from the limitations risk which naturally resulted here from the decision to file in only one of the potentially available fora. Accordingly, inasmuch as we see no reason for further oral argument, it is ordered that Claimants petition for rehearing is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8620557. Public record. Not legal advice.