1-05-1620
SIXTH DIVISION
December 15, 2006
No. 1-05-1620
VICKY ELSBURY, Mother and Next ) Appeal from the
Friend of Jennifer Nicole and Kate ) Circuit Court
Jaclyn, Minor Children of Roger ) of Cook County.
O'Connor, Deceased; and JAMES )
DOBRY )
)
Plaintiffs-Appellees, )
)
v. ) Nos. 04 CH 259 & 02 L
) 51371 (consolidated)
STANN AND ASSOCIATES, ILLINOIS )
EARTHCARE WORKERS' COMPENSATION )
TRUST; GROUP SELF INSURERS' )
INSOLVENCY FUND; THE STATE )
DEPARTMENT OF INSURANCE, RATE )
ADJUSTMENT FUND, JUDITH BAAR )
TOPINKA, Treasurer, State of )
Illinois, as ex officio guardian )
of the Illinois Group Workers' )
Compensation Pool Insolvency Fund, ) Honorable
) Martin S. Agran,
Defendants-Appellants. ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Defendant, Judith Baar Topinka, the Treasurer of the State
of Illinois (the Treasurer), appeals the judgment of the circuit
court of Cook County granting plaintiffs' writ for mandamus.1
1
Following the filing of this appeal, the Elsbury plaintiffs
settled with defendants-appellants. We subsequently granted the
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Plaintiff James Dobry brought this mandamus action against the
Treasurer seeking to compel her to tender the principal of her
general bond to the Group Workers' Compensation Pool Insolvency
Fund (the Insolvency Fund) to ensure payment of his award entered
by the Illinois Industrial Commission (Commission), now known as
the Illinois Workers' Compensation Commission. See 820 ILCS
305/13 (West 2004). The circuit court granted plaintiff's writ
of mandamus, holding that the Insolvency Fund was intended to
compensate individuals such as plaintiff and the relevant
statutes required the Treasurer to protect the Insolvency Fund.
For the reasons that follow, we affirm the judgment of the
circuit court.
BACKGROUND
On April 17, 1996, plaintiff was injured while performing
his duties as a cement worker for his employer, Marko
Construction Company (MCC), and was thereafter unable to return
to his regular duties. MCC contributed to the Earth Care
Workers' Compensation Trust (the Earth Trust) pursuant to section
4a of the Workers' Compensation Act (the Act). 820 ILCS 305/4a
et seq. (West 1996). Section 4a of the Act authorized employers
parties' joint motion to dismiss the Elsbury portion of this
appeal on September 18, 2006. The only remaining parties to this
appeal are the Treasurer and Dobry.
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with similar risks to form workers' compensation insurance pools
in order to pool risks and administer premiums and claims
themselves. The Earth Trust was such a pool authorized by
section 4a of the Act.
Following plaintiff's injury, the Earth Trust made payments
to him on his workers' compensation claim. However, on October
26, 2000, plaintiff's payments from the Earth Trust ceased.
Subsequently, an order of liquidation was entered against the
Earth Trust. On December 18, 2000, plaintiff filed an amended
application for adjustment of claim naming the Treasurer as a
party respondent pursuant to section 4a(5) of the Act, which
states in pertinent part:
"The State Treasurer is ex-officio custodian of the Group
Self-Insurers' Insolvency Fund. Monies in the Fund shall be
deposited the same as are State funds ***. It shall be
subject to audit the same as State funds and accounts and
shall be protected by the general bond given by the State
Treasurer. It is considered always appropriated for the
purposes of compensating employees who are eligible to
receive benefits from their employers pursuant to the
provisions of the Workers' Compensation Act *** when their
employer is the member of a group self-insurer and the group
self-insurer has been unable to pay compensation due to
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financial insolvency either prior to or following the date
of the award. Monies in the Fund may be used to compensate
any type of injury or occupational disease which is
compensable under [the] Act.
The State Treasurer shall be joined with the group self-
insurer as party respondent in any claim, or application for
adjustment of claim filed against a group self-insurer
whenever the compensation and medical services provided by
this Act may be unpaid by reason of default of an insolvent
group self-insurer.
Payment shall be made out of the Group Self-Insurers'
Insolvency Fund only upon order of the Commission and only
after the penal sum of the surety bond and/or securities and
the assessment against the individual members of the group
self-insurer in default have been exhausted." 820 ILCS
305/4a(5) (West 1996).
On January 1, 2001, the General Assembly repealed section 4a
of the Act and, through Public Act 91-757, enacted the Workers'
Compensation Pool Law (Pool Law) (215 ILCS 5/107a.01 et seq.
(West 2002)). Pub. Act 91-757 §10 (eff. January 11, 2001). The
portions of section 107a.13 of the Pool Law that are relevant to
the instant case are essentially identical to section 4a of the
Act with the exception of the manner in which payment from the
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Group Worjers' Compensation Pool Insolvency Fund (Insolvency
Fund) is ordered. Section 107a.13(c) states that "[p]ayment
shall be made out of the Group Workers' Compensation Pool
Insolvency Fund only upon order of the Director [of Insurance]"
(215 ILCS 5/107a.13(c) (West 2002)), as opposed to payment upon
order from the Commission (820 ILCS 305/4a(5) (West 1996)). The
Pool Law created the Insolvency Fund as the successor to the
Group Self-Insurers' Insolvency Fund (Self-Insurers' Fund).
Pursuant to the Pool Law, funds from the former would be
transferred to the latter on the Pool Law's enactment date. 215
ILCS 5/107a.13(a) (West 2002).
On May 4, 2001, the Commission entered an order in favor of
plaintiff awarding him temporary total disability benefits and
medical expenses. The findings of the Commission and its order
were uncontested. The liquidation proceedings against the Earth
Trust were pending at the time of the Commission's order and MCC
was insolvent and could not be found. On May 10, 2001, plaintiff
received a letter from the Director of Insurance (the Director),
which reads in relevant part:
"This letter confirms that our Office will approve the
payment from the Group Workers' Compensation Pool Insolvency
Fund of the Medical and Temporary Total Disability payments
which may be ordered paid on Mr. Dobry's claim by the
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Arbitrator.
Such an approval would be based on the current provision
of 215 ILCS 5-107a.13, as well as other relevant laws, and
in light our [sic] having no dispute as to your
acknowledgment of amount previously paid on the subject
injury."
On June 14, 2001, plaintiff began receiving payments from the
Fund for all accrued monies and for medical and disability
benefits. On October 26, 2001, the time for filing a proof of
claim against the Earth Trust in its liquidation proceedings
expired. Medical and disability payments continued from the
Insolvency Fund until March 24, 2002, five months following the
expiration of time to file a proof of claim against the Earth
Trust, when payments to plaintiff ceased without notice. The
record does not show that plaintiff was advised of the expiration
date for filing a claim against the Earth Trust or instructed to
file a claim against the Earth Trust in order to continue
receiving benefits from the Insolvency Fund or Self-Insurers'
Fund.
On May 9, 2002, the Industrial Commission's arbitrator ruled
that plaintiff was permanently and totally disabled and that he
was entitled to payments consistent with such a finding. The
Commission further held that plaintiff's entitlement to the
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payments was clear and uncontested and that liability for
payments rested upon the State under either section 4a of the Act
or section 107a.13(b) of the Pool Law. The State did not appeal,
seek clarification or modification of the ruling. The State,
however, apparently made representations to the Commission that
it could not pay the benefits to plaintiff because both the Self-
Insurers' Fund and the Insolvency Fund were insolvent. The
arbitrator, although acknowledging the State's representations,
specifically stated that the State failed to produce any evidence
or affidavits to support its claim.
On November 13, 2002, plaintiff filed a writ of mandamus
against the Treasurer to compel her to fulfill her statutorily
mandated duty to financially protect the Insolvency Fund by
tendering to it her general bond. Plaintiff filed his second
amended complaint on December 5, 2003, and a motion for summary
judgment on December 1, 2004. The Treasurer argued, among other
things, that plaintiff was not entitled to payment from the
Insolvency Fund because he failed to timely file a claim against
the Earth Trust during the liquidation proceedings. The
Treasurer's arguments were based on an affidavit issued by the
Chief Deputy Director of the Department of Insurance indicating
that plaintiff was not entitled to any benefits because he failed
to file a claim against the Earth Trust.
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The circuit court granted plaintiff's motion for summary
judgment following extensive briefing and oral arguments by the
parties. The court found that plaintiff's request for mandamus
was proper, plaintiff had a right to payment from the Self-
Insurers' Fund or Insolvency Fund and the Treasurer failed to
produce any evidence or legal authority to support her claim that
plaintiff was required to file a timely claim against the Earth
Trust during its liquidation period to preserve his right to
payment from the Self-Insurers' Fund or Insolvency Fund.
The Treasurer filed her timely appeal from the circuit
court’s ruling and filed a motion in this court to stay the lower
court’s writ of mandamus, which this court granted.
ANALYSIS
I. STANDARD OF REVIEW
The Treasurer contends that the circuit court misconstrued
section 107a.13 of the Pool Law and erred by granting summary
judgment to plaintiff because: (1) plaintiff is not entitled to
payment from the Insolvency Fund because he failed to file a
claim against the Earth Trust during its liquidation; and (2)
section 107a.13 does not require the Treasurer to provide money
for the fund but, rather, only mandates that the Treasurer
protect the money that is paid to the fund received from other
sources. We review a grant of summary judgment and issues of
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statutory construction, both of which concern questions of law,
de novo. Read v. Sheahan, 359 Ill. App. 3d 89, 92 (2005);
O'Connor v. County of Cook, 337 Ill. App. 3d 902, 906 (2003).
II. REQUIREMENTS FOR A WRIT OF MANDAMUS
Mandamus is an extraordinary remedy which is used to enforce
" 'the performance of official duties by a public officer where
no exercise of discretion on his part is involved.' " Noyola v.
Board of Education of the City of Chicago, 179 Ill. 2d 121, 133
(1997), quoting Madden v. Cronson, 114 Ill. 2d 504, 514 (1986).
It is not a writ of right but is awarded as a matter of judicial
discretion. League of Women Voters v. County of Peoria, 121 Ill.
2d 236, 242 (1987). The party seeking a writ of mandamus bears
the burden of establishing an absolute right to its issuance.
Romero v. O'Sullivan, 302 Ill. App. 3d 1031, 1034 (1999). The
issuance of a writ of mandamus is appropriate only where the
plaintiff shows a clear, affirmative right to the requested
relief, a clear duty to act on the defendant's part, and clear
authority in the defendant to comply with the writ. Lewis E. v.
Spagnolo, 186 Ill. 2d 198, 229 (1999).
Plaintiff, by virtue of seeking a writ of mandamus, has the
burden of establishing three things in this case: (1) that he has
a clear right to payment form the Insolvency Fund; (2) that the
Treasurer has a clear duty to post her bond to the Insolvency
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Fund; and (3) that the Treasurer has the clear authority to post
her bond to protect the Fund should she be ordered to do so.2
See Lewis E., 186 Ill. 2d at 229.
III. RIGHT TO PAYMENT FROM THE FUND
We first note that the Treasurer asserts that section
107a.13 of the Pool Law is the provision that should be applied
to the circumstances of this case. In that regard, the Treasurer
argues that plaintiff has no right to payment from the Insolvency
Fund because the Director did not order the Fund to pay
plaintiff's benefits. This argument lacks merit because it is
well-established law in Illinois that "a worker's rights under
the Workers' Compensation Act are governed by the law in effect
at the time of injury." Westinghouse Airbake Co. v. Industrial
Comm'n, 306 Ill. App. 3d 853, 857 (1999), citing Wilson-Raymond
Constructors Co. v. Industrial Comm'n, 79 Ill. 2d 45, 51 (1980).
The fact the Commission ordered payment from the Insolvency Fund
following the repeal of section 4a of the Act is of no
consequence here. It is " 'the law in effect at the time of the
injury that governs the rights of the parties and not the law
effective at the time the award is made ***.' " (Emphasis
omitted.) Wilson-Raymond, 79 Ill. 2d at 52-53, quoting Stanswsky
2
The Treasurer does not argue on appeal that she is not
authorized to post her bond.
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v. Industrial Comm'n, 344 Ill. 436, 440 (1931). Therefore,
section 4a of the Act applies to plaintiff's claim because it is
undisputed that his injury occurred in 1996 and that the
Commissions ordered the Insolvency Fund to pay plaintiff's
benefits.
The Treasurer asserts that plaintiff was not eligible to
recover from the Insolvency Fund because he failed to follow the
procedure set forth in Article XIII of the Illinois Insurance
Code (215 ILCS 5/187 et seq. (West 2004)) (the Insurance Code).
In other words, once the time for filing a claim against an
insolvent risk pool has expired, a claimant's right to seek
payment from the Insolvency Fund will be extinguished. We
disagree.
In support of her position, the Treasurer cites to certain
sections of the Insurance Code for the proposition that plaintiff
failed to comply with the mandatory liquidation process specified
in Article XIII of the Code. The Treasurer also cites to Cork v.
Associated International Insurance Managers Inc., 58 Ill. App. 2d
331, 340 (1965), which states: "The object of a liquidation
proceeding is to treat all creditors in a equitable manner, ***
the equal sharing by creditors in the assets of an insolvent in
proportion to their claims." As a result of plaintiff’s failure
to properly file a timely claim pursuant to the Insurance Code,
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the Treasurer claims that he is precluded from receiving relief
from any source, at any time.
Although we agree with the general principle announced in
Cork, we find that the Treasurer’s reliance on the Code and the
Cork case is misplaced. First, there is no section in the Act or
Insurance Code that conditions the relief plaintiff is seeking on
his filing a timely liquidation claim pursuant to Article XIII.
In fact, the Pool Law specifically states that provisions of the
Insurance Code to which the Treasurer cites apply after December
31, 2000. Section 107a.04(a)(1) provides:
"[A]fter December 31, 2000, group workers' compensation
pools shall for the purpose of this Article, and this
Article only, be considered as though they were assessable
domestic mutual insurance companies and subject to the
following:
(1) Article XII 1/2, Article XIII, Article XIII ½,
Article XXIV ***." 215 ILCS 5/107a.04(a)(1) (West 2004).
It is clear, based on section 107a.04(a)(1), that Article XIII of
the Insurance Code did not apply to workers' compensation pools
before December 31, 2000.
Furthermore, the Cork case is inapposite because it involved
an insurance broker that provided surplus line insurance services
to an international insurer that later became insolvent. See
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generally Cork, 58 Ill. App. 2d 331. The Cork case did not
address the relief sought by a plaintiff that was found to be
permanently disabled and entitled to payment pursuant to statute
from the Insolvency Fund. The language of the Act and the Pool
Law, on the other hand, specifically addresses and provides for
the remedy that plaintiff seeks here. The Insolvency Fund and
the Self-Insurers’ Fund "is considered always appropriated for
the purposes of compensating employees who are eligible to
receive benefits from their employers pursuant to the provisions
of the Workers' Compensation Act *** when their employer is the
member of a group self-insurer and the group self-insurer has
been unable to pay compensation due to financial insolvency
either prior to or following the date of the award." 820 ILCS
305/4a(5) (West 1996). Contrary to the Treasurer’s assertion,
there is no condition precedent, expressed or implied, by the
legislature in this text of the statute that a worker participate
in the liquidation proceedings in Article XIII of the Insurance
Code.
Even if we were to find that the liquidation proceedings of
Article XIII applied here, the fact that plaintiff failed to
participate does not preclude him from receiving benefits from
the Insolvency Fund. First, we point out that although the
Treasurer assigns great importance to plaintiff’s compliance with
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the provisions of the Insurance Code, plaintiff was not notified
of his "requirement" to file a claim as mandated by section
208(1) of the Insurance Code, which states:
"When in a liquidation, rehabilitation, or conservation
proceeding against an insurer under this Article an order
has been entered for the filing of claims, all persons who
may have claims against such insurer shall present the same
to the Liquidator, Rehabilitator or Conservator, as the case
may be, at a place specified in the notice for filing of
claims within such time as may be fixed by order of the
Court. The Director shall notify all persons who may have
claims against such insurer as disclosed by its books and
records, to present the same to him within the time as
fixed. The last date for the filing of proof of claim shall
be specified in the notice. Such notice shall be given in a
manner determined by the Court. The Director shall also
cause a notice specifying the last day for filing of claims
to be published once a week for three consecutive weeks in a
newspaper published in the county where such proceedings are
pending and in such other newspapers as he may deem
advisable." 215 ILCS 5/208(1) (West 2004).
There is nothing in the record that suggests that plaintiff
received such notice to file a claim. In fact, the record
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reveals that while the Earth Trust was being liquidated by the
Director, plaintiff continued to receive benefits from the
Insolvency Fund and was not aware that any further action was
necessary to continue his benefits. Plaintiff relied on the
letter from the Director indicating that the Insolvency Fund
would pay his medical and disability benefits as ordered by the
Commission.
Second, both sections 4a(5) of the Act and 107a.13 of the
Pool Law contemplate precisely the benefit that plaintiff was
receiving prior to its insolvency. As stated above, the monies
in the Insolvency Fund are considered always appropriated when:
(1) employees are eligible to receive benefits from their
employer and the employer is a member of a group self-insurer
fund; (2) the group fund has become unable to pay due to
financial insolvency; and (3) the claimant suffers from any type
of injury or occupational disease that is compensable under the
Act. The Treasurer does not dispute that plaintiff meets the
above required criteria to receive benefits from the Insolvency
Fund. It is further undisputed that neither the Treasurer nor
the Director ever raised any objection to the fact that plaintiff
was entitled to receive medical and disability benefits under
section 4a of the Act until the Insolvency Fund became insolvent.
Because plaintiff has clearly satisfied the requirements of
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section 4a of the Act, we find that he is entitled to receive
payments from the Insolvency Fund.
IV. TREASURER’S DUTY TO PROTECT THE FUND
The Treasurer next argues that even if plaintiff were
entitled to payment from the Insolvency Fund, she has no duty to
post her general bond to the Fund because the Treasurer is only
required to protect the funds that have been deposited into the
Insolvency Fund and the Director, not the Treasurer, is
responsible for ensuring the solvency of the Fund. Ramsay's
Estate v. People ex rel. Southern Illinois Penitentiary
Commissioners, 197 Ill. 572 (1902); People ex rel. Nelson v. West
Englewood Trust & Savings Bank, 353 Ill. 451 (1933).
Specifically, the Treasurer asserts that the plain language of
the Pool Law and the Act does not require the Treasurer to supply
funds to the Insolvency Fund, but only protect the funds that
have already been deposited in the Insolvency Fund. While we
agree with the Treasurer that the Director is responsible for
collecting money to be deposited into the Insolvency Fund, this
does not mean that the Treasurer may ignore her statutory duty as
mandated by the Act. Additionally, the cases to which the
Treasurer cites are inapposite to the issues before this court
because those cases did not involve a statute that required the
official to post a bond for the protection of a certain fund.
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See Ramsay's Estate v. People ex rel. Southern Illinois
Penitentiary Commissioners, 197 Ill. 572 (1902); People ex rel.
Nelson v. West Englewood Trust & Savings Bank, 353 Ill. 451
(1933). We cannot construe section 4a of the Act, as the
Treasurer does, to only require her to protect the money in the
Insolvency Fund. We hold, based on the plain language of the
statute, that the legislature did not intend for the Treasurer's
bond to simply protect the funds received from third parties, but
to protect the fund in a manner that effectuates its intended
purpose.
The cardinal principle of statutory interpretation is that
the court must effectuate legislative intent. In re Justin M.B.,
204 Ill. 2d 120, 123 (2003), citing Solich v. George & Anna
Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76,
81 (1994). The best indicator of legislative intent is statutory
language. Michigan Avenue National Bank v. County of Cook, 191
Ill. 2d 493, 504 (2000). Courts should consider the statute in
its entirety, keeping in mind the subject it addresses and the
legislature's apparent objective in enacting it. People v.
Taylor, 221 Ill. 2d 157, 162 (2006), citing People v. Davis, 199
Ill. 2d 130, 135 (2002). However, a reviewing court's inquiry
must always begin with the language of the statute itself, which
is the surest and most reliable indicator of the legislature's
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intent. Taylor, 221 Ill. 2d at 162; People v. Pullen, 192 Ill.
2d 36, 42 (2000). When the language of a statute is clear, it
must be applied as written without resort to further aids or
tools of interpretation. In re R.L.S., 218 Ill. 2d 428, 433
(2006). If statutory language is plain, the court cannot read
exceptions, limitations or conditions into a statute that the
legislature did not express. In re D.D., 196 Ill. 2d 405, 419
(2001); Garza v. Navistar International Transportation Corp., 172
Ill. 2d 373, 378 (1996), quoting Solich, 158 Ill. 2d at 83. Only
when the meaning of the enactment cannot be ascertained from the
language may a court look beyond the language and resort to aids
for construction. In re D.D., 196 Ill. 2d at 419; Gem
Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill.
2d 470, 475 (1998); Solich, 158 Ill. 2d at 81.
The operative language here can be found in section
107a.13(b) of the Pool Law, which states, in relevant part, that
"[t]he Fund shall be subject to audit the same as State funds and
accounts and shall be protected by the general bond given by the
State Treasurer." 215 ILCS 5/107a.13(b) (West 2004). First, we
note that the language used by the legislature in section 4a of
the Act and 107a.13(b) of the Pool Law ("the Fund shall be ***
protected"), refers to the Fund and not the monies in the Fund.
Second, the legislature did not include language in section 4a of
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the Act or section 107a.13(b) of the Pool Law limiting the
Treasurer's bond to protect the monies in the Insolvency Fund at
a specified time. Furthermore, if the legislature was inclined
to apply the Treasurer's bond only to the monies previously
received by the Insolvency Fund at a specified time, it could
have easily accomplished its objective by specifying such
limitations in the language of the provision. The legislature
did not express such an intention and we will not write
limitations into a provision that are not expressed.
Moreover, in our view, when reading section 4a of the Act or
section 107a.13 of the Pool Law, together with the Workers'
Compensation Act (820 ILCS 305/1 et seq. (West 2004)) in its
entirety, the result sought by the Treasurer is incompatible with
the purpose of the Act. The fundamental purpose of the Act is to
promote the general welfare of the people of Illinois by
providing employees and their dependents prompt, sure and
definite compensation, together with a quick and efficient remedy
for injuries suffered in the course of employment. General
American Life Insurance Co. v. Industrial Comm'n, 97 Ill. 2d 359,
370 (1983). "The Workers' Compensation Act is a remedial statute
intended to provide financial protection for injured workers, and
it is to be liberally construed to accomplish that objective."
Flynn v. Industrial Comm'n, 211 Ill. 2d 546, 556 (2004), citing
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Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill.
2d 524, 529 (1987); Pathfinder Co. v. Industrial Comm'n, 62 Ill.
2d 556, 563 (1976); Jacobs v. Industrial Comm'n, 269 Ill. App. 3d
444, 447 (1995).
We agree with plaintiff's construction of section 107a.13 of
the Pool Law, which is that the legislature intended that the
Insolvency Fund would be created with a minimum balance and
protected if necessary by the Treasurer's bond, for the purpose
of paying benefits to injured workers who would otherwise receive
compensation from an insolvent pooled risk fund. Additional
support for this construction is found in section 4a-1 of the
Act, where the legislature established an advisory board for the
purpose of, among other things, "providing for the continuation
of workers' compensation and occupational disease benefits due
and unpaid or interrupted due to the inability of an insolvent
self-insurer." 820 ILCS 305/4a-1 (West 1996). We thus reject
the Treasurer's interpretation of the Act which would only
protect monies received by the Insolvency Fund, thereby limiting
employees' benefits and frustrating the purpose of the Act when a
group risk pool becomes insolvent.
Based on the language of section 4a of the Act, section
107a.13 of the Pool Law and the stated purpose of the Act
generally, we conclude that the intent of the legislature was to
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ensure payment of workers' benefits from the Insolvency Fund,
without interruption by having the Treasurer protect the fund
with her bond.
We find it important to note that plaintiff asks this court
to order the Director to commence payment from the Insolvency
Fund once monies are deposited therein. The Director, however,
is not a party to this appeal and no relief was sought against
him in the circuit court. We, therefore, deny plaintiff's
request. This ruling does not affect plaintiff's right to
receive benefits from the Fund as explained previously in this
opinion.
V. CONCLUSION
For the foregoing reasons, we hold that plaintiff was
clearly entitled to payment from the Insolvency Fund, he was not
required to file a claim against the Earth Trust in order to be
eligible for benefits from the Insolvency Fund and the Treasurer
had a clear duty to post her general bond to protect the
Insolvency Fund pursuant to the Act. As a result, the circuit
court properly granted summary judgment and a writ of mandamus in
favor of plaintiff. Accordingly, the judgment of the circuit
court is affirmed.
Affirmed and writ awarded.
McNULTY and JOSEPH GORDON, JJ., concur.
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