Reynolds v. Ret. Bd. of the Firemen's Annuity

2013 IL App (1st) 120052

990 N.E.2d 337

371 Ill.Dec. 437

Pamela REYNOLDS, as Special Administrator of the Estate of Doris Faust, Deceased, Plaintiff–Appellant

v.The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant–Appellee.

Docket No. 1–12–0052.

Appellate Court of Illinois, First District, Second Division.

May 7, 2013.

Donald T. Bertucci, Ltd., of Chicago (Donald T. Bertucci, of counsel), for appellant.

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

OPINION

Justice QUINN delivered the judgment of the court, with 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 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. 108 1/2, 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, 286 Ill.Dec. 328, 813 N.E.2d 1021 (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.” (Emphases 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.

[371 Ill.Dec. 440]¶ 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 marriage ³, 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 Code; (2) a request for administrative review; ⁴ (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., 391 Ill.App.3d 1108, 367 Ill.Dec. 833, 982 N.E.2d 983 (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...