MICHAEL P. GAFFNEY, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE ORLAND FIRE PROTECTION DISTRICT et al., Defendants-Appellees, 397 Ill. App. 3d 679

JUSTICE McBRIDE delivered the opinion of the court: Plaintiff Michael J. Gaffney filed a two-count complaint against the defendants, the Board of Trustees of the Orland Fire Protection District, president Patrick Maher, secretary Patricia Corcoran, and the Orland Fire Protection District (collectively, the District), seeking a declaratory judgment to compel the payment of plaintiffs health coverage benefits in accordance with

section 10 of the Public Safety Employee Benefits Act (the Act) (820 ILCS 320/10 (West 2006)) and, in the alternative, for review under the Administrative Review Law (735 ILCS 5/3—101 et seq. (West 2006)) of the District’s denial of his application for health coverage benefits under the Act. The trial court dismissed the declaratory judgment count in June 2008, and later in December 2008, the court considered plaintiffs remaining count under a common law writ of certiorari and affirmed the District’s denial of plaintiffs application. Plaintiff appeals, arguing that (1) the District’s consideration of plaintiffs request for payment of his health insurance premiums pursuant to

section 10 violated the terms of

section 20 of the Act (820 ILCS 320/20 (West 2006)), which does not permit a home rule unit to provide benefits in a manner inconsistent with the Act and acts as a limitation on the home rule unit’s powers under the Illinois Constitution; and (2) plaintiffs injury during a training exercise fire occurred during his response to what he reasonably believed was an emergency under

section 10(

b) of the Act (820 ILCS 320/10(b) (West 2006)). Plaintiff was hired by the District as a firefighter and paramedic in May 1994. On July 27, 2005, plaintiff responded to a live-fire training exercise. His superior instructed plaintiff to treat the exercise as though it were an actual emergency call. Plaintiffs crew responded with lights and sirens running on the truck. Plaintiffs crew was told to rescue a “dummy” victim from the fire and to advance the fire hose into the building to contain the fire. Plaintiff donned full fire protection gear, including a breathing apparatus, and entered the building.

The building was full of smoke with little to no visibility. Plaintiff found and removed the dummy victim on the second floor. Plaintiff and his crew also worked to advance a hose line through the building. After removing the dummy victim, they continued up to the third floor, where the fire was to be extinguished. The hose became entangled with an unseen object and plaintiff followed the hose line back to the obstruction. The hose was wrapped around a love seat and plaintiff used his dominant left arm to move the love seat to free the hose.

When plaintiff moved the love seat, he severely injured his left shoulder. Plaintiff continued to participate in the exercise for a little while, but eventually stopped due to his injury. After plaintiffs injury, the training exercise ended. Plaintiff was later transported to the hospital. Except for light duty, plaintiff has not returned to work for the District since that day. Following his injury, plaintiff applied for a line-of-duty disability pension from the District, which was granted in April 2007. Also in April 2007, plaintiff applied to the District to receive health coverage benefits under the Act.

The Act allows emergency service personnel, including firefighters, and their families to continue receiving health benefits following a catastrophic injury or death that occurred while engaged in specified aspects of their job, such as when the firefighter was responding to what he or she reasonably believed was an emergency. See 820 ILCS 320/10 (West 2006). The District passed an ordinance directing the procedure for its firefighters to apply for these benefits under the Act. Plaintiffs application was continued to a special meeting of the District in May 2007.

Although the ordinance does not require a hearing, plaintiff was permitted to present his case for benefits under the Act with his attorney at this meeting. After reviewing plaintiffs application and the facts of the case alongside the requirements of the Act, the board of trustees denied plaintiffs application, finding that plaintiff was not responding to what he reasonably believed was an emergency at the time of his injury.

In July 2007, plaintiff filed a complaint against the District in the circuit court for declaratory judgment, and in the alternative, for review of the District’s denial of his application under the Administrative Review Law. The District moved to dismiss plaintiffs complaint pursuant to

section 2—615 of the Code of Civil Procedure (735 ILCS 5/2—615 (West 2006)). In June 2008, the trial court granted the District’s motion as to count I (declaratory judgment). The court also held that the Act did not expressly adopt the Administrative Review Law, and therefore, it did not apply. The court stated that it would consider plaintiffs remaining count as a petition for a common law writ of certiorari. In December 2008, following briefing and arguments, the trial court affirmed the District’s denial of plaintiffs application for health coverage benefits under the Act.

The court found: “The plain meaning of the phrase, ‘response to what is reasonably believed to be an emergency,’ does not include participation in a training exercise, particularly where, as here, Plaintiff and his crew were given instructions prior to the start of the exercise. Read as a whole, the statute covers situations in which emergency response personnel are injured or killed while performing the very services they are charged with performing.

Training exercises, although valuable as an educational tool to prepare officers and firefighters for the types of events they are expected to handle, are not responses to fresh pursuit or to what is reasonably believed to be an emergency, under any plain reading of the statute. There was nothing unexpected about Plaintiffs ‘response’ to the call that began the exercise. Although the exercise was undeniably dangerous and presented certain unknown difficulties (as expected in any such exercise), danger and unknowns are not sufficient to constitute an emergency as that term is used in [the Act].

Plaintiff admits that his crew was instructed to treat the exercise as an actual call. Plaintiff and his crew therefore knew that the exercise was not an emergency, or even a false alarm. As a matter of law, Plaintiff could not have reasonably believed he was responding to an emergency.” (Emphasis in original.) This appeal followed.

On appeal, plaintiff argues that (1) the District was not permitted to pass an ordinance outlining a process for plaintiff to apply for benefits and its consideration of said application was not authorized under the Act; and (2) plaintiffs injury occurred during his response to what he reasonably believed was an emergency.

Initially, we must address the District’s argument that this court lacks jurisdiction to consider plaintiffs first argument because his notice of appeal only indicated that he was appealing from the December 10, 2008, order denying him benefits and did not mention the June 13, 2008, order dismissing the declaratory judgment count of the complaint. Generally, when a final order has been entered in a case, all nonfinal orders previously entered may be reviewed by the appellate court. Reed v. Retirement Board of the Fireman’s Annuity & Benefit Fund, 376 Ill.

App. 3d 259, 267 (2007). “An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof.” R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998). “An appeal from a final judgment draws into question all earlier nonfinal orders that produced the judgment.” Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App. 3d 64, 67-68 (2003).

Here, the June 13, 2008, order was a nonfinal order as it only dismissed one count of plaintiffs complaint and left the remaining count for further action. In contrast, the December 10, 2008, order was a final order in this case and plaintiff filed a timely appeal of that order. Since we may consider nonfinal orders following final judgment, any questions regarding the June 13, 2008, order are properly before this court. In determining the appropriate standard of review, we need to clarify the procedural posture of this case, including the reviewability of the District’s decision.

Plaintiff contends that pursuant to

section 20 of the Act, the District had no authority to conduct any review of his claim for health coverage benefits under the Act, and thus, the District’s decision is not entitled to deference. “Whether an agency action is reviewable is an issue of statutory construction.” Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 332 (2009). “Courts must consider whether the statute which confers power on the agency to act indicates that the legislature intended the agency’s decisions to be reviewable.

Frequently, the legislature’s intent is clear because the agency’s enabling statute expressly provides for review under our Administrative Review Law (735 ILCS 5/3—101 et seq. (West 2006)).” Outcom, 233 Ill. 2d at 332-33. However, when the enabling statute does not adopt the Administrative Review Law and provides no other method for reviewing the agency’s decision, then “ ‘the writ of common law certiorari survives as an available method of review.’ ” Outcom, 233 Ill. 2d at 333, quoting Smith v. Department of Public Aid, 67 Ill. 2d 529, 541 (1977).

The presumption behind the use of certiorari is that most agency decisions are reviewable, but there is no presumption of reviewability if there is a statutory bar or statutory language directing that the agency’s decision is up to its unreviewable discretion. Outcom, 233 Ill. 2d at 333. Here, it is uncontroverted that the Act does not adopt the Administrative Review Law. 820 ILCS 320/1 et seq. (West 2006). Thus, any review would have to be pursuant to a common law writ of certiorari. Our standard of review under a writ of certiorari is essentially the same as under the Administrative Review Law.

First Access Material Handling v. Wish, 297 Ill. App. 3d 396, 402 (1998). “When reviewing an administrative agency’s decision, we are limited to determining whether the decision is against the manifest weight of the evidence.” First Access, 297 Ill. App. 3d at 402. However, we review any legal questions raised de novo. First Access, 297 Ill. App. 3d at 402. Any question as to the

interpretation of the Act presents a legal question that we review de novo, but to the extent that this determination involves a factual finding, we review that to determine if it is against the manifest weight of the evidence. DeRose v. City of Highland Park, 386 Ill. App. 3d 658, 660 (2008). Plaintiff argues that the District lacked authority to enact an ordinance or otherwise consider his claim for health coverage benefits because

section 20 of the Act is a limitation on those powers. The District maintains that the Act does not restrict its authority to pass all necessary ordinances for the proper management and conduct of its business.

Section 20 of the Act provides: “Home rule. An employer, including a home rule unit, that employs a full-time law enforcement, correctional or correctional probation officer, or firefighter may not provide benefits to persons covered under this Act in a manner inconsistent with the requirements of this Act. This Act is a limitation under subsection (

i) of

Section 6 of

Article VII of the Illinois Constitution on the concurrent exercise of powers and functions exercised by the State.” 820 ILCS 320/20 (West 2006). Plaintiff asserts that this statute prohibits the District from enacting an ordinance outlining the application process for catastrophically injured firefighters to receive health coverage benefits.

Plaintiff argues that the District violated this statute when it enacted Ordinance No. 2003—04, entitled “AN ORDINANCE ADOPTING A POLICY REGARDING CONTINUATION OF INSURANCE BENEFITS UNDER THE PUBLIC SAFETY EMPLOYEE BENEFIT ACT.” The ordinance stated that the board of trustees “determined that there [was] a need to adopt a policy regarding the continuation of health insurance benefits for certain firefighters and/or their families” pursuant to

section 10 of the Act. Orland Park Fire District Ordinance No. 2003—04 (eff. May 14, 2003). The ordinance adopted an attached policy and directed the fire chief to disseminate the policy to all District employees.

The policy states: “When a line of duty disability or surviving spouse pension is granted by the Board of Trustees of the Orland Firefighters’ Pension Fund and the pensioner is interested in requesting health insurance benefits for him or herself, his or her spouse, and/or dependent children, he/she shall complete the ‘Application for Continuation of Insurance Benefits under the Public Safety Employee Benefits Act.’ The application will be reviewed to determine if the requirements of the Act have been met, including, but not limited to, the following: 1.

The catastrophic injury or death for which a line-of-duty pension or surviving spouse pension was granted must have occurred since November 14, 1997; and 2. The injury or death must have occurred as a result of the firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act. If the application is approved, the pensioner, spouse and/or dependent children shall receive basic group health insurance at no cost.

Any health insurance benefits payable from any other source shall reduce benefits payable under the Act and this policy. (820 ILCS 320/10).” This ordinance mirrors that language used in

section 10 of the Act, which requires (1) a catastrophic injury or death; and (2) the injury or death occurred as a result of the police officer’s or firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act. See 820 ILCS 320/10 (West 2006). Plaintiff argues at length that this ordinance is prohibited under

section 20 of the Act, but fails to explain how the ordinance violates

section

Section 20 limits home rule units’ application of the Act in that, the home rule units “may not provide benefits to persons covered under this Act in a manner inconsistent with the requirements of this Act.” 820 ILCS 320/20 (West 2006). Plaintiff has not asserted how the ordinance is inconsistent with the Act, but instead claims that the ordinance “is not a neutral and benign procedure” and “is tantamount to creating an ordinance that requires a hearing for the payment of utilities bills.” Plaintiffs arguments imply that payment of health coverage benefits under the Act is presumed without any consideration of the Act. We disagree. We point out that

section 6 of the Fire Protection District Act (70 ILCS 705/1 et seq. (West 2008)) specifically authorizes the board of trustees to provide and pay for health insurance benefits to its employees (70 ILCS 705/6(e) (West 2008)) as well as the power to pass all necessary ordinances for the proper management and conduct of its business (70 ILCS 705/6(i) (West 2008)). Additionally,

section 10— 4—2(

c) of the Illinois Municipal Code provides that a corporate authority “may enact an ordinance prescribing the method of operation of the insurance program.” 65 ILCS 5/10—4—2(c) (West 2006). Under these statutes, the District’s board of trustees was within its statutory power to pass an ordinance outlining the “method of operation” for those firefighters seeking health insurance benefits under the Act. “[A]n ordinance cannot add to, subtract from, or affect a statute’s provisions, and if the ordinance conflicts with the statute, it is invalid.” JLR Investments, Inc. v. Village of Barrington Hills, 355 Ill.

App. 3d 661, 666 (2005). In this case, the ordinance in question does not conflict with or affect any of the provisions under the Act. The ordinance outlines a procedure in which firefighters may receive health coverage benefits under the Act. It does not impose any substantive requirements of a firefighter that are inconsistent with the Act. If a firefighter (or his/her spouse) would like to receive health coverage benefits under the Act, then an application is filed that describes the injury or death and circumstances surrounding the injury. The application is reviewed to determine if it satisfies

section 10 of the Act. This process is not inconsistent with the Act. Plaintiff also asserts that since the Act “contains absolutely no provision creating an administrative procedure for the adjudication of claims,” then pursuant to

article VI,

section 9, of the Illinois Constitution of 1970, the circuit court has exclusive jurisdiction. However, plaintiff fails to consider the statutes we have previously cited which explicitly designate the District’s board of trustees to oversee the management and payment of health insurance benefits to its employees and that, as part of that power, the board may pass ordinances to assist in the management of its business.

The ordinance passed explaining the board’s policy for considering claims under the Act did not divest the circuit court of jurisdiction since the board had the power to administer health insurance benefits to its employees. Therefore, the District had the authority to consider plaintiffs application for benefits under the Act. Next, we turn to the question of whether plaintiff is entitled to health coverage benefits under the Act.

Section 10 of the Act provides, in relevant part: “(

a) An employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority or until the end of the calendar year in which the child reaches the age of 25 if the child continues to be dependent for support or the child is a full-time or part-time student and is dependent for support. *** (

b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of the officer’s response to fresh pursuit, the officer or firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act. Nothing in this

Section shall be construed to limit health insurance coverage or pension benefits for which the officer, firefighter, spouse, or dependent children may otherwise be eligible.” 820 ILCS 320/10 (West 2006). It is uncontested by the parties that plaintiff suffered a catastrophic injury that satisfies

section 10(

a) of the Act. Therefore, the only question before us is whether the injury occurred while plaintiff was engaged in one of the listed tasks. Plaintiff argues that his injury occurred while he was responding to what he “reasonably believed to be an emergency.” The District responds that plaintiffs injury during a training exercise does not qualify as a response to what plaintiff “reasonably believed to be an emergency.” First, we examine what the meaning of the term “emergency” is as used in the Act.

The cardinal rule in construing a statute, to which all others are subordinate, is to ascertain and give effect to the intent of the legislature. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). To determine legislative intent, we turn to the language of the statute, which is the best indicator of its intent. Alvarez, 229 Ill. 2d at 228.

We must give the statutory language “plain, ordinary, and popularly understood meaning,” and “[wjhere the language is clear and unambiguous, the statute must be given effect as written without resort to further aids of statutory construction.” Alvarez, 229 Ill. 2d at 228. “[A]ll words and phrases must be interpreted in light of other relevant provisions of the statute and must not be construed in isolation.” Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007). “Each word, clause and sentence of the statute, if possible, must be given reasonable meaning and not rendered superfluous.” Brucker, 227 Ill. 2d at 514.

In DeRose v. City of Highland Park, 386 Ill. App. 3d 658 (2008), the Second District considered the same provision of

section 10(b). In that case, a police officer responded to a call where a residential burglary alarm had been triggered. When he arrived at the residence, the officer investigated the property to check for open doors or broken windows. While approaching a rear sliding glass door, the officer slipped, fell and sustained an injury to his shoulder. The officer continued investigating the property and concluded that the alarm had been a false alarm. DeRose, 386 Ill. App. 3d at 659. Following a bench trial, the officer was awarded health coverage benefits under the Act. DeRose, 386 Ill. App. 3d at 660.

On appeal, the City of Highland Park (the City) contended that the officer was not responding to what was “reasonably believed to be an emergency.” DeRose, 386 Ill. App. 3d at 660. The reviewing court first considered the meaning of “emergency” as it applied to the Act. “Although the Employee Benefits Act does not provide a definition for the word ‘emergency’ as it is used in

section 10, the parties essentially agree on the meaning to be accorded it. Defendant directs us to dictionary

definitions that indicate that the word ‘emergency’ means ‘the “urgent need for assistance or relief,” ’ or ‘ “an unforeseen combination of circumstances that calls for immediate action.” ’ Plaintiff cites a dictionary defining the term as ‘ “a sudden condition or state of affairs calling for immediate action.” ’ Our own resort to the dictionary yields a similar definition: Webster’s Third New International Dictionary defines the word ‘emergency’ primarily as ‘an unforeseen combination of circumstances or the resulting state that calls for immediate action.’ Webster’s Third New International Dictionary 741 (1993). We agree with the parties that the above

definitions are appropriate, and we interpret the word ‘emergency’ as used in the Employee Benefits Act consistently with the word’s dictionary definition. A situation is therefore an ‘emergency’ under the Employee Benefits Act where it is urgent and calls for immediate action.” DeRose, 386 Ill. App. 3d at 660-61. The court in DeRose applied this definition to the circumstances of the case to determine if the officer believed he was responding to an emergency, and if so, if that belief was reasonable. DeRose, 386 Ill. App. 3d at 661.

The City argued that the officer did not believe he was responding to an emergency because he did not use sirens or lights when he traveled to the location of the alarm. However, the reviewing court did not find this failure to use sirens and lights to be dispositive, particularly because the officer had explained that he did not wish to alert any potential intruder as to his arrival on the scene. DeRose, 386 Ill. App. 3d at 661-62.

Further, the court noted that the officer “may not have viewed the situation here as requiring that he use his lights or siren to expedite his arrival at the scene, but, by traveling to the scene without pause, he nonetheless acted in a manner consistent with a belief that the situation required his immediate response” and concluded that the officer believed he was responding to an emergency. DeRose, 386 Ill. App. 3d at 662. In considering whether the officer’s belief was reasonable, the City contended that most of the alarms received by the police department were false, which ended up being true in that case.

The reviewing court dismissed this argument as its application could cause police officers to delay response to potentially dangerous calls based on prior situations that resulted in no bona fide need for a response and the call could control whether a situation was an emergency based on the statistical likelihood of a bona fide need for a response. DeRose, 386 Ill. App. 3d at 662-63. The court held that “a call requires an officer’s immediate response, and is therefore an emergency, until the officer eliminates the possibility that the call is bona fide.” DeRose, 386 Ill. App. 3d at 663.

Since the officer had an immediate response to the call and had not yet eliminated the possibility of danger when he was injured, the DeRose court concluded that the officer’s belief that he continued to face an emergency was reasonable. DeRose, 386 Ill. App. 3d at 663. We agree with the DeRose court’s conclusion that an “emergency” under the Act occurs when the incident “is urgent and calls for immediate action.” Next, we need to determine whether plaintiff believed he was responding to an emergency, and if so, was plaintiffs belief reasonable.

Unlike the circumstances present in DeRose, plaintiff was not responding to a call from the public, but participating in a live-fire training exercise. Plaintiff argues that he was reasonable in his belief that “he was confronted by an emergency situation because he [was] directly ordered to believe that this [training exercise] was an emergency.” The District maintains that the training exercise was not an “emergency” because the firefighters were told what the goal of the training exercise was: to rescue the dummy victim and advance the fire hose to put out the fire.

The District asserts that, “[b]y definition, these pre-planned situations cannot be classified as an unforeseen combination of circumstance for which the General Assembly intended

Section 10(

b) coverage.” Plaintiffs testimony before the District establishes that he did not believe he was responding to an emergency. Plaintiff knew that this training exercise was not an actual emergency and that it was a live-fire training exercise. Plaintiff noted that not all training exercises involve a live fire. Even though plaintiff was instructed to treat the training exercise as an emergency, an instruction to treat a training exercise as though it were an emergency does not make it an emergency under the language of the statute.

In fact, it illustrates the opposite: a training exercise is not inherently an emergency. He and his crew were given specific instructions and tasks to accomplish during the training exercise. Additionally, after plaintiff was injured, the training exercise was stopped. Here, plaintiffs testimony shows that he believed that he was responding to a training exercise, albeit one that involved a live fire, and not an emergency. Therefore, plaintiff did not have a reasonable belief that he was responding to an emergency and is not entitled to benefits under the Act.

We find further support for our conclusion by considering the language employed in the applicable line-of-duty disability pension statute. That statute states, in relevant part, “[i]f a firefighter, as the result of sickness, accident or injury incurred in or resulting from the performance of

an act of duty or from the cumulative effects of acts of duty, is found, pursuant to

Section 4—112, to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his or her being placed on disability pension.” 40 ILCS 5/4—110 (West 2006). Under this statute, a firefighter is eligible for a line-of-duty disability pension if the injury or illness occurred during “the performance of

an act of duty or from the cumulative effects of acts of duty.” This language is broader than that used under the Act as it encompasses any injury that occurred during an “act of duty.” Under this statute, participation in a required training exercise would be an “act of duty.” See O’Callaghan v. Retirement Board of Firemen’s Annuity & Benefit Fund, 302 Ill. App. 3d 579 (1998) (finding that a knee injury incurred during a candidate training class was

an act of duty). In contrast, the Act did not use the phrase “act of duty,” instead adopting a narrower application for the specifically referenced occurrences: “the officer’s response to fresh pursuit, the officer or firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act.” 820 ILCS 320/10 (West 2006).

The dissent cites to comments made by members of the General Assembly introducing the bill creating the Act by describing it as “providing] that for full-time law enforcement officers and firefighters that are killed or disabled in the line of duty shall continue the health benefits for the officer or the firefighter, their spouses and their children.” 90th Ill. Gen. Assem., Senate Proceedings, May 16, 1997, at 192 (statements of Senator Donahue). We point out that “while courts give some consideration to statements by a sponsor of a bill, such statements are not controlling.” Kunkel v.

Walton, 179 Ill. 2d 519, 536 (1997). Significantly, the legislature declined to use the phrase “line of duty” in drafting the bill. Instead, subsection (

b) limits health benefits coverage to four specific circumstances during which, the death or catastrophic injury occurred. “Generally, when the legislature uses certain words in one instance and different words in another, different results were intended.” Emerald Casino, Inc. v. Illinois Gaming Board, 346 Ill. App. 3d 18, 35 (2003). Here, the difference in statutory language illustrates the legislative intent that the Act be applied narrower than the line of duty disability pension.

While we understand plaintiffs position in seeking health benefits coverage, we conclude that the legislature did not intend for the statute to be applied under the facts of this case. Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County. Affirmed. CAHILL, EJ., concurs.