dissenting:
In my opinion, the majority decision here fails both to adequately examine the rationale of the court in Nevada v. Hall (1979), 440 U.S. 410, 59 L. Ed. 2d 416, 99 S. Ct. 1182, and to address Illinois’ public policy in providing only limited recovery to our own citizens against the sovereign. In Hall, the Supreme Court, in deciding whether a forum State must recognize the sovereign immunity of a foreign State, first analyzed the issue under the full faith and credit clause of the United States Constitution. (440 U.S. at 421-24, 59 L. Ed. 2d at 425-27, 99 S. Ct. at 1188-90.) Finding that the full faith and credit clause does not require recognition of a foreign State’s sovereign immunity, if such recognition would frustrate the forum State’s policies, the court then proceeded to analyze the issue under principles of comity. 440 U.S. at 425-26, 59 L. Ed. 2d at 428-29, 99 S. Ct. at 1190-91.
The majority opinion not only fails to discuss the distinction between the full faith and credit clause analysis and the separate comity consideration as set forth in Hall, but also does not recognize the clear import of the Hall court’s recognition of California’s statutory scheme which, unlike Illinois, unequivocally waived its own sovereign immunity and provided for jurisdiction in its courts over residents and nonresidents alike to allow those injured through negligence full compensation for their injuries in the California courts. (See 440 U.S. at 424, 59 L. Ed. 2d at 427, 99 S. Ct. at 1190.) In footnote 24 of its opinion, the Supreme Court carefully limited its holding to the existing statutory schemes in Nevada and California, stating it had “no occasion, in this case, to consider whether different state policies, either of California or of Nevada, might require a different analysis or a different result.” 440 U.S. at 424 n.24, 59 L. Ed. 2d at 427 n.24, 99 S. Ct. at 1190 n.24.
The proper analysis in this case, according to Hall, is to first determine whether Illinois is obligated under the full faith and credit clause to recognize and give effect to the Indiana immunity statute. In doing so, we must carefully examine the relevant policies of Illinois to insure that such policies will not be thwarted by our recognition of the Indiana statute. Recognition of the Indiana statute as a matter of comity need only be considered if we conclude that the full faith and credit clause does not obligate us to recognize the Indiana statute in this case.
Unlike California, which unequivocally waived its own immunity, Illinois has, as a matter of policy, retained a degree of sovereign immunity. Our constitution has abolished sovereign immunity except to the extent that “the General Assembly may provide by law.” (Ill. Const. 1970, art. 13, §4; Ellis v. Board of Governors (1984), 102 Ill. 2d 387, 391, 466 N.E.2d 202; Robb v. Sutton (1986), 147 Ill. App. 3d 710, 712, 498 N.E.2d 267.) Our legislature has seen fit to allow the State to be sued but only in a limited respect. (See Ill. Rev. Stat. 1985, ch. 127, par. 801; Ill. Rev. Stat. 1985, ch. 37, par. 439.1 et seq.) The majority opinion fails to point out that the notice requirement and the $100,000 damage limitation is contained in the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.1 et seq.), which further provides that this State may be sued in tort, but that the Court of Claims shall have exclusive jurisdiction to hear such claims. (Ill. Rev. Stat. 1985, ch. 37, par. 439.8(d); Ellis, 102 Ill. 2d at 394-95, 466 N.E.2d at 206.) Thus, Illinois maintains sovereign immunity to the extent that it prohibits a suit against the State in any circuit court in Illinois.
The Indiana statute at issue in this case bars suit against the State of Indiana in any foreign State court. (Ind. Code Ann. §34 — 4— 16.5 — 5(d) (West 1987).) The question under a full faith and credit analysis is whether Illinois, in light of its own public policy, must apply this Indiana statute immunizing the State of Indiana from suits in foreign States. I conclude that, in this case, the full faith and credit clause does require application of the Indiana statute in our circuit court.
Plaintiff brought suit in the circuit court of Kane County. If the Indiana statute is given effect in this case, plaintiff will be barred from a remedy in the circuit court. Such a result would not be contrary to the established policy of Illinois. As discussed earlier, Illinois does not provide a tort remedy against itself in its circuit courts. Plaintiff would be no worse off than if he had attempted to bring a similar tort suit against the State of Illinois in a circuit court of this State. He could not do so. Illinois is, therefore, obligated, under the full faith and credit clause of the United States Constitution, to recognize and give effect to the Indiana immunity statute to the extent that it affords Indiana immunity in our State’s circuit courts. I do not, however, address the issue of whether we would have to recognize that same immunity had this tort action been brought in the Court of Claims of Illinois. That question is not before us.
As I would decide this case on application of the Federal full faith and credit clause, it is unnecessary to examine the separate and distinct issue of whether, as a matter of comity, we should recognize the law of the State of Indiana.