{ "id": 1163678, "name": "Decatur Earthmover Credit Union, Claimant, v. George H. Ryan, Secretary of State, Respondent", "name_abbreviation": "Decatur Earthmover Credit Union v. Ryan", "decision_date": "1999-08-30", "docket_number": "No. 98-CC-2601", "first_page": "414", "last_page": "435", "citations": [ { "type": "official", "cite": "52 Ill. Ct. Cl. 414" } ], "court": { "name_abbreviation": "Ill. Ct. Cl.", "id": 8793, "name": "Illinois Court of Claims" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 Ill. Ct. Cl. 141", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 2770212 ], "opinion_index": 0, "case_paths": [ "/ill-ct-cl/21/0141-01" ] }, { "cite": "26 Ill. Ct. Cl. 104", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 2758009 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/ill-ct-cl/26/0104-01" ] }, { "cite": "293 U.S. 328", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3929607 ], "weight": 2, "pin_cites": [ { "page": "331-333" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/us/293/0328-01" ] }, { "cite": "774 F.2d 875", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 35696, 6125588 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "881" } ], "opinion_index": 0, "case_paths": [ "/f2d/774/0875-01", "/br/53/0875-01" ] }, { "cite": "44 B.R. 300", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6555152 ], "year": 1983, "pin_cites": [ { "page": "306-307" } ], "opinion_index": 0, "case_paths": [ "/br/44/0300-01" ] }, { "cite": "6 B.R. 443", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6538516 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/br/6/0443-01" ] }, { "cite": "18 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328152 ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0011-01" ] }, { "cite": "498 U.S. 395", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6227711 ], "weight": 2, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/us/498/0395-01" ] }, { "cite": "516 U.S. 59", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 323761 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "67" }, { "page": "67" }, { "page": "73-74" } ], "opinion_index": 0, "case_paths": [ "/us/516/0059-01" ] }, { "cite": "49 Ill. Ct. Cl. 93", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 1324784 ], "opinion_index": 0, "case_paths": [ "/ill-ct-cl/49/0093-01" ] }, { "cite": "27 Ill. Ct. Cl. 127", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 2767850 ], "weight": 2, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-ct-cl/27/0127-01" ] }, { "cite": "35 Ill. Ct. Cl. 143", "category": "reporters:state", "reporter": "Ill. Ct. Cl.", "case_ids": [ 6057270 ], "opinion_index": 0, "case_paths": [ "/ill-ct-cl/35/0143-01" ] } ], "analysis": { "cardinality": 1233, "char_count": 39003, "ocr_confidence": 0.797, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.04279110480958542 }, "sha256": "2cf93c8aaa4ed8c4b422c9b1ab687671b9b040074e9fe5a6e18eb31ddc348ea4", "simhash": "1:5039bff7ef61ced0", "word_count": 6303 }, "last_updated": "2023-07-14T19:19:27.557513+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Decatur Earthmover Credit Union, Claimant, v. George H. Ryan, Secretary of State, Respondent." ], "opinions": [ { "text": "OPINION ON MOTIONS TO DISMISS\nEpstein, J.\nThis $14,088.85 negligence claim against the Respondents Secretary of State (the Secretary or SOS) is before us on the Respondents second motion to dismiss, and on one dangling issue from its first motion to dismiss.\nRespondents current motion asserts the Secretary\u2019s immunity under section 3 \u2014 114(i) of the Illinois Vehicle Code (625 ILCS 5/3 \u2014 114(i)) as a bar to liability arising from, inter alia, \u201ca [motor vehicle] certificate of title issued in error [that] is subsequently used to commit a fraudulent act.\u201d This claim presents a statutory construction issue of first impression: whether the section 3 \u2014 114(i) immunity applies generally to all erroneous title certificates or whether this immunity applies only to erroneous title certificates issued pursuant to section 3 \u2014 114 which deals with \u201cTransfer by operation of law.\u201d\nAlso before us is one remaining issue raised in the Respondent\u2019s first motion to dismiss that was not resolved by the filing of Claimant\u2019s first amended complaint: whether the Claimant fully exhausted its alternative sources of recovery for its loss, as required by section 25 of the Court of Claims Act. (705 ILCS 505/25.) The circumstances of this case present a novel issue in this Court: the burden of proof when a Claimant seeks to justify its failure to pursue a seemingly liable third party as frivolous based on that party\u2019s subsequent bankruptcy discharge, where there was a colorable possibility that the particular liability may not have been dischargeable due to the debtor's fraud if the Claimant had timely objected in the bankruptcy proceedings and had proven fraud by the bankrupt debtor.\nNature of the Claim\nClaimant alleges that the Secretary negligently issued a new certificate of title to a motor vehicle that should have, but did not, show the Claimant\u2019s unreleased hen of record, and that enabled the owner to sell the vehicle to an innocent purchaser without notice of the lien and without discharging the lien, thereby depriving the Claimant lender of its collateral.\nThe Facts as Alleged\nAccording to the amended complaint, which we take as true for purposes of the motion to dismiss: In late 1994, Claimant made a secured $24,125 car loan to Richard Fore on a. 1991 Chevrolet Corvette. Claimant perfected a hen on the Corvette that was noted on Fore\u2019s certificate of title. In 1995, Fore legally changed his name to LeFeur and applied for a replacement certificate to reflect his new name. The SOS issued the new title without showing Claimant\u2019s hen, although it was affirmatively shown on the original certificate and was a matter of record. Fore/ LeFeur did not present a purported release of lien to the SOS with his application for a new tide, but his application also failed to state that there was a lien on the vehicle. With $14,088.85 outstanding on Fore/LeFeur\u2019s secured debt to the Claimant, he sold the Corvette to a bona fide purchaser without notice of the Claimant\u2019s lien.\nAccording to Claimant\u2019s later pleading (memorandum in opposition to motion to dismiss, at 2), Mr. LeFeur later filed bankruptcy and received a discharge.\nThe Section 3 \u2014 114(i) Immunity Issue\nAgainst the Claimant\u2019s negligence claim, Respondent asserts the immunity granted by section 3 \u2014 114(i) of the Illinois Vehicle Code (625 ILCS 5/3 \u2014 114(i)), which provides:\n\u201c(i) The Secretary of State shall not be held civilly or criminally liable to any person because any purported transferor may not have had the power or authority to make a transfer of any interest in any vehicle or because a certificate of title issued in error is subsequently used to commit a fraudulent act.\u201d\nAs a threshold matter, we agree with the Respondent, and the Claimant does not dispute, that this statutory immunity applies to the facts of this case. However, there are two distinct clauses in the section 3 \u2014 114 immunity for incorrect title certificates: the first clause is triggered by an unauthorized title transferor; the second clause is triggered by later fraudulent use of an erroneous title certificate. We presume that the immunities cover damages that are caused by the two specified kinds of occurrences.\nThe second clause clearly covers the instant facts. First, there is no dispute that the new title certificate on Fore/LeFeurs Corvette was \u201cissued in error\u201d insofar as it failed to show Claimant\u2019s lien, which was a matter of record. Second, Claimant alleges that Fore/LeFeurs sale of the vehicle without satisfying the lien or disclosing it to the purchaser was a \u201cfraudulent act\u201d as to the Claimant. Indeed, these circumstances fall precisely within the apparent purpose of this immunity clause.\nHowever, the applicability of the first clause, triggered by a lack of authority of the \u201ctransferor * * e to make a transfer of any interest\u201d in the Corvette, is dubious. On one hand, there is no suggestion that Mr. Fore/LeFeur was not the title owner or lacked authority to transfer the title subject to the hen. On the other hand, although it is clear that he did not have the \u201cpower or authority\u201d unilaterally to extinguish the lender\u2019s lien of record (which is equivalent to a transfer), it is not alleged that Fore/LeFeur himself did anything to transfer or extinguish the lien. On this record at this motion stage, we cannot assume that there was a \u201ctransfer\u201d of any lien \u201cinterest\u201d in the vehicle by any \u201ctransferor\u201d within the ambit of the statute. See, however, Glenview State Bank v. State (1982), 35 Ill. Ct. Cl. 143, applying, but not discussing, the first immunity clause of section 3 \u2014 114.\nDespite this facial applicability of at least one of the statutory immunities, the Claimant contends that the section 3 \u2014 114(i) immunities do not apply to this claim because the erroneous certificate in this case was not issued as a result of a transfer by operation of law. Claimant contends that the section 3 \u2014 114(i) immunity is limited to section 3 \u2014 114 title transfers, i.e., to certificates issued to confirm or implement transfers of operation of law, and thus does not apply to certificates issued pursuant to other sections of the Vehicle Code such as was effected in this case by Fore/LeFeurs application for a new certificate to reflect his changed name.\nClaimants statutory construction argument rests on the legislative intent of this immunity statute, as inferred from its context in section 3 \u2014 114 of the Vehicle Code. Claimant contends that the scope of the section 3\u2014 114(i) immunity is limited to the scope of section 3\u2014 114, entitled \u201cTransfer by operation of law,\u201d which deals with transfers directed by courts and persons other than the named title-holder. Claimant points out that this immunity clause was not enacted as a free-standing section of the Vehicle Code, which would suggest general applicability, but instead was legislatively placed within section 3 \u2014 114. Claimant observes that there are at least two other sections of the Vehicle Code that deal with title transfers \u2014 section 3 \u2014 112 (\u201cTransfer\u201d) and section 3 \u2014 113 (\u201cTransfer to and from dealer; records.\u201d) \u2014 and that those sections contain no immunity provisions. Claimant concludes that this statutory structure manifests a legislative intent to grant the Secretary immunity only as to erroneous title certificates issued to implement a transfer by operation of law.\nNeither party has discussed the case law. This Court has not been receptive to claims based on erroneous vehicle titles. In Glenview State Bank v. State (1982), 35 111. Ct. Cl. 143, the Court rejected a lienholders claim much like this one, relying on the statutory immunity which was then section 3 \u2014 114(h) and then contained only the first \u201cunauthorized transferor\u201d clause, and also citing Wagoner v. State (1971), 27 Ill. Ct. Cl. 127.\nIn Wagoner, this Court dismissed a similar claim, holding that \u201cthe Legislature did not intend that the State * * * compensate persons for any loss they may have sustained by reason of their relying upon * * * [a] Certificate of Title\u201d (27 Ill. Ct. Cl. at 129), a questionable holding that rejected liability on the basis of inferred legislative intent without reference to statutory immunities or any textual statutory basis. In light of the General Assembly\u2019s enactment of specific immunities for the Secretary\u2019s issuance of erroneous vehicle titles, which reflects an assumption if not a determination that liability would otherwise he, Wagoners rationale is highly dubious.\nDespite the recurring claims in vehicle title error cases, this Court has never considered the scope-of-immunity argument advanced here by this Claimant. We do so now.\nClaimant\u2019s construction of the section 3 \u2014 114 immunity finds both support and opposition in the legislative history of this statute, which surprisingly has not been reviewed by the parties. Because the Claimant\u2019s argument is predicated on a claimed interaction of statutory text\u2014 i.e., the immunity language itself and the narrow subject of the statutory section in which it is contained \u2014 we consider the issue to be sufficiently akin to an ambiguity in the statute to open the door to consideration of legislative history to amplify the ultimate issue of the legislative intent.\nThe immunity provision originated as part of subsection (a) of section 3 \u2014 114 of the Vehicle Code in its original 1970 enactment, and was later moved to the end of the section as a separate subsection (e). (P.A. 77 \u2014 641 (1971).) Subsection (e) was later renumbered and wound up as subsection (i) as other paragraphs were inserted in section 3 \u2014 114. The initial form of the section 3 \u2014 114 immunity, as noted above, was limited to what is now the first unauthorized transferor clause.\nThe second immunity clause of the present section 3 \u2014 114(i) was added by the General Assembly in 1983. (P.A. 83-1362, eff. Jan. 1, 1984.) No language in section 3 \u2014 114, however, has ever narrowed the scope of either immunity clause from that provided by their own terms, and section 3 \u2014 114 has never contained language limiting its immunity provision(s) to title certificates issued pursuant to section 3 \u2014 114 \u201coperation of law\u201d title transfers. Claimant\u2019s context argument, accordingly, is purely one of inferred legislative intent.\nAs Claimant emphasizes, the terms of the initial immunity clause as well as its original placement in section 3 \u2014 114(a) support the view that the immunity was intended by the General Assembly to cover only titles issued pursuant to \u201ctransfers by operation of law\u201d under section 3 \u2014 114. First, that section dealt only with transfers arising by operation of law, which is consistent with the view that the placement of the immunity clause in section 3 \u2014 114, rather than creating a separate general immunity section, reflects an intended narrower scope. Second, because the transactions covered by section 3\u2014 114 all involve a new title certificate requested by someone other than the named title-owner (e.g., a court, a lienholder, a probate executor or lawyer, a joint tenant), the possibility of an unauthorized transfer \u2014 the specific circumstance addressed by the initial immunity clause\u2014 arises peculiarly under this section of the Vehicle Code. This heightened exposure to \u201cunauthorized\u201d transferors and consequent title errors lends a straightforward reason for an inferred legislative decision to grant immunity in this circumstance but not generally.\nThe legislative history of the second immunity clause of section 3 \u2014 114(i) is quite different. The second clause did not originate with the Vehicle Code, or in section 3\u2014 114(a), but was added to section 3 \u2014 114(i) in 1983. (P.A. 83-449, eff. Jan. 1, 1984.) At that time, section 3 \u2014 114 still addressed third-party transactions implementing title transfers by operation of law (or required by law, e.g., salvage titles, then under section 3 \u2014 114(f).) This tends to support Claimants contextual argument as to the second immunity clause, paralleling the contextual inference for the original immunity clause. As observed above, however, there is no textual indication of such a limitation for either immunity clause in the statute.\nMore acutely, however, the terms of the second immunity clause, unlike the terms of the first clause, do not relate to the particular situation (transfers \u201cby operation of law\u201d) that is otherwise addressed by section 3 \u2014 114. Unlike the original immunity grant (for title certificates spawned by unauthorized transferors), the second clause (for fraudulent use of erroneous titles after issuance) deals with a general circumstance that has no apparent nexus to the kind of transaction that generated the erroneous title.\nWe perceive no reason why subsequent fraudulent use of an incorrect title certificate is, or might be expected to be, more prevalent depending on whether the erroneous title certificate was an original title, or a voluntary transferred title, or a title transferred by operation of law under the section 3 \u2014 114 procedures. Particularly in cases of omitted lien notations, as in this case and in the majority of vehicle title claims that have come to this Court, there is no suggestion of a causal connection to prior transfers \u201cby operation of law\u201d under section 3 \u2014 114. Neither party has shown or suggested any historical difference in the occurrence of title errors \u2014 especially omissions of liens \u2014 in different kinds of vehicle title transactions. Moreover, there is no indication that the legislature might have assumed such a differential. Accordingly, we find no supporting reason for the General Assembly to have intended a limited scope to the general language of the second immunity clause\u2014 for fraudulent use of erroneous titles \u2014 when it added it to the existing immunity paragraph of section 3 \u2014 114(i) of the Vehicle Code.\nIn the absence of a nexus between the effect of the second immunity clause and the subject of the section, the legislative placement of the second clause in section 3 \u2014 114(i) does not carry much of a substantive inference. That placement is as much explained by legislative drafting convenience \u2014 placing the new immunity clause together with the pre-existing immunity clause \u2014 as it is by inferred substantive intent.\nOn the other hand, the plain language of the second immunity clause indicates a general applicability to all erroneous vehicle titles. Not only is there no limiting language anywhere in the text of section 3 \u2014 114(1), as observed above, but the language of the second immunity clause is unqualifiedly general. The statute speaks of \u201ca certificate * * * issued in error # * used to commit a fraudulent act.\u201d [Emphasis ours.] This language on its face encompasses any erroneous certificate without regard to how or when or why it was issued.\nWe note that the \u201cfraudulent use\u201d immunity clause is broader on its face than the scope of section 3 \u2014 114 in which this immunity clause is embedded. That fact, however, does not itself generate an inference that the context limits the broader range of the added language. If there were a conflict between the general application of the added language and the pre-existing terms of the statute, such an argument might carry weight; in such a case, there would at least be a statutory inconsistency to be resolved by judicial construction. But where, as here, there is no conflict, and no inconsistency \u2014 and indeed, no connection at all \u2014 between the added clause and the pre-existing provisions of section 3 \u2014 114, we find no basis on the face of the statute for not giving the added clause full effect in accordance with the plain meaning of its terms.\nWe are bound to follow the plain meaning of statutory words and phrases as the primary indicator of legislative intent absent a persuasive textual indication of a different legislative intent or, in the case of an ambiguity or conflict, absent a historical or legislative record of a contrary intent. Plainly, the burden of persuasion is on the party urging a construction other than the plain meaning of the statutory language, which in this case is the Claimant.\nThus far in the analysis, Claimant has not carried that burden: Claimants argument that the General Assembly manifested its intent to limit these immunities \u2014 particularly the second immunity provision \u2014 to title certificates issued under section 3 \u2014 114 finds no support in the text of the statute (which is facially contrary to Claimant\u2019s position) and finds no persuasive support from the legislative history of the statutory immunity clauses, particularly the second clause added in 1983. This leaves only the specific legislative record of the second immunity clause \u2014 in the 1983 amendment to section 3 \u2014 114(i)\u2014as potential pertinent input to our interpretative decision.\nThat record, however, is largely barren of indication of the legislatures intent. Public Act 83 \u2014 449, which was Senate Bill 1121 in the Eighty-Third General Assembly, and which inter alia amended section 3 \u2014 114(i) to add the second immunity clause (P.A. 83 \u2014 449, section 1) was a lengthy and wide-ranging enactment that made numerous amendments to the Illinois Vehicle Code (as well as to one other Act), and covered a number of issues. The only aspect of P.A. 83 \u2014 449 that relates to the Secretary\u2019s liability or immunity is the change it effected to section 3\u2014 114, in which it only amended paragraph (i) and only to insert the second immunity clause: # or because a certificate of title issued in error is subsequently used to commit a fraudulent act.\u201d It made no other changes in section 3 \u2014 114. Our research indicates that the legislation was uncontroversial (and was presumably advocated or approved by the Secretary of State\u2019s office), as it was passed without debate as an \u201cagreed bill\u201d in both houses. Thus, except for the inference, if any, arising on the face of the enactment itself, there is no legislative gloss of record for us to consult.\nThe only pertinent intent reflected on the face of P.A. 83 \u2014 449 was the intent to grant a broader immunity to the Secretary for liability, arising from fraudulent use of erroneous vehicle title certificates. Although that does not refute Claimant\u2019s argument, neither does it provide any support for it.\nWe conclude that we are bound to apply the plain meaning of the text of the second immunity clause, as it was enacted by the General Assembly in 1983. We are unpersuaded that the legislature intended to limit the scope of this expanded immunity for fraudulently used title certificates to only some title certificates. Claimants contextual argument is far from baseless. But after careful consideration of the language and history and draftsmanship of these provisions, this contextual argument must be rejected in favor of the plain meaning of the statutory words as enacted by the legislature.\nUnder section 3 \u2014 114(i) of the Vehicle Code, the Secretary, and hence the Respondent, is immune from liability for negligent issuance of the erroneous vehicle title certificate in issue, based on the later fraudulent use of that certificate by Fore/LeFeur to avoid Claimants lien and deprive it of its collateral. The Respondents liability, if any, is barred and Respondents motion to dismiss must be granted.\nThe Exhaustion of Alternative Source-Bankruptcy Issue\nRespondent asserts in its first dismissal motion that the Claimant failed to exhaust an alternate source of recovery of its losses \u2014 Mr. Fore/LeFeur \u2014 as required by the Court of Claims Act (705 ILCS 505/25), and that this claim should be dismissed for this reason. We address this issue, despite our holding on the immunity issue, because of the recurring importance of bankruptcy discharges to failure-to-exhaust defenses in this Court, and because Claimants failure to exhaust is a second basis for dismissal.\nRespondent asserts that Fore/LeFeur s fraudulent sale of the Corvette to a bona fide purchaser was the cause of the Claimants loss and that LeFeur is liable to the Claimant, and must be pursued to exhaustion. To this exhaustion defense, Claimant asserts Mr. LeFeur s bankruptcy. Claimant\u2019s theory is that Mr. LeFeur\u2019s bankruptcy discharge extinguished his liability to the Claimant, thereby barring legal pursuit of LeFeur for Claimants loss. Respondent has not replied to this point.\nThe Court agrees that a bankruptcy discharge of a liability generally excuses a Claimant from pursuing that bankrupt debtor on that liability as an alternative source under section 25 of the Court of Claims Act and under this Courts implementing Rule (74 Ill. Admin. Code section 790.60) because there is no longer a liability to pursue. This conclusion is compelled by our precedents construing section 25 alternate source exhaustion to require reasonable rather than absolute or formalistic exhaustion. (See, e.g., Davis v. State (1992), 49 Ill. Ct. Cl. 93, and cases cited therein.) This conclusion, however, does not resolve the exhaustion issue in this case because of the apparent fraud of the bankrupt debtor, Mr. LeFeur.\nThe unusual twist in this case is that Mr. LeFeur s bankruptcy may or may not have discharged his loan liability or his apparent tort liability to this Claimant, and even if those liabilities were in fact discharged in his bankruptcy proceedings, they may well not have been discharged if the Claimant had timely objected to their discharge in the bankruptcy court and had proven fraud by Mr. LeFeur.\nThe facts alleged in this case assert a fraud by Fore/ LeFeur s sale of the vehicle without paying or preserving the lien, which Fore/LeFeur knew had not been discharged. Although this Court cannot adjudicate that fraud issue on the current record, we observe that the issue has been raised and that, under the Bankruptcy Code, a fraudulent liability is non-dischargeable, although the discharge must be timely objected to in the bankruptcy proceedings and must be adjudicated by the bankruptcy court. 11 U.S.C. 543.\nThe record before us does not disclose whether or not LeFeurs liability to the Claimant was in fact discharged (no copy of the bankruptcy courts order of discharge has been presented), or whether or not the Claimant objected to discharge of LeFeurs liability to it, or, if Claimant did object, whether it pursued its objection to discharge to exhaustion. However, it is clear that the Claimant has the burden of proving its exhaustion, and that in these circumstances, where the bankruptcy discharge is proffered by the Claimant, it must prove (i) the discharge of the alternative source\u2019s (LeFeurs) liability, and (ii) Claimant\u2019s exhaustion of reasonable efforts to object to that discharge on apparent fraud grounds.\nClaimant has failed to carry these burdens. The Claimant has not even proved up the bankruptcy discharge of Mr. LeFeur, and has not addressed the dischargeability issue. On the current record, Claimant\u2019s failure to exhaust is a second basis for dismissal of this claim.\nConclusion\nFor the foregoing reasons, it is hereby ordered:\n1. Respondent\u2019s motion to dismiss this claim as barred by the immunity of the Secretary of State under section 3 \u2014 114(i) is granted;\n2. Respondent\u2019s first motion to dismiss for failure to exhaust its remedies against Mr. Fore/LeFeur is granted;\n3. This claim is dismissed with prejudice and forever barred.\nSUPPLEMENTAL OPINION ON REHEARING\nEpstein, J.\nClaimant petitioned for rehearing, and asks us to reconsider both issues that were decided in our initial decision:\n(1) the statutory construction issue, as to the scope of applicability of the second immunity clause of section 3 \u2014 114(i) of the Motor Vehicle Code. 625 ILCS 3 \u2014 114(i);\n(2) the exhaustion of alternative sources issue, under section 25 of the Court of Claims Act (705 ILCS 505/25), as applied to Claimants non-pursuit of a seemingly liable tortfeasor who filed bankruptcy and obtained a discharge but whose liability to the Claimant was arguably non-dis-chargeable due to the tortfeasors fraud.\nThe Respondent did not respond. Because the Claimants petition raises substantial issues that were not adequately addressed by the Court, we grant rehearing and issue this supplemental opinion and order.\nStatutoiy Construction:\nThe Negative Pregnant Inference\nThe Respondents liability for this claim turns on the applicability or inapplicability of the second immunity clause of section 3 \u2014 114(i): \u201cThe Secretary of State shall not be held civilly * * * liable * * * because a certificate of title issued in error is subsequently used to commit a fraudulent act.\u201d\nIn our initial opinion, based largely on the legislative history and draftsmanship, we rejected Claimants contextual argument that the applicability of that immunity is limited by the prior scope of section 3 \u2014 114, into which that immunity clause was selectively placed by the legislature (i.e. , Claimant\u2019s contention that this immunity language is applicable only to title certificates issued to implement ownership \u201cTransfer by operation of law,\u201d which was the scope and title of the section when this immunity clause was added.)\nOn rehearing, Claimant forcefully renews its contextual or selective enactment construction argument, fortified by a new label and citations to opinions of the U.S. Supreme Court. In its petition for rehearing (paragraph 3(d), at 3), Claimant advances the\n\"* * * well established rule of statutory construction which states \u2018an express statutory requirement here, contrasted with statutory silence there, shows an intent to confine the requirement to the specified instance.\u2019 Field v. Mans (1995), 516 U.S. 59, 67, citing Gozlon-Peretz v. United States (1991), 498 U.S. 395, 404 (\u2018[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion\u2019).\u201d\nClaimant seeks, with some persuasion, to apply this \u201capparent negative pregnant\u201d rule of construction (Justice Souter in Fields v. Mans, 516 U.S. at 67) to the second immunity clause of section 3 \u2014 114(i), which the General Assembly added to that section but \u2014 as Claimant emphasizes- \u2014 not to other sections of the Vehicle Code that deal with issuance of title certificates in other circumstances.\nWe first observe that the Supreme Court rejected the negative pregnant inference in Field v. Mans, supra, on which the Claimant relies, just as this Court rejected that contextual inference in this case. As in Field, we found the inference was outweighed by salient factors in the legislative history and style of the disputed statute that persuaded us of a different (here broader) legislative intent than that \u201cimplied\u201d by the negative pregnant.\nStill, we agree that the negative pregnant inference argument can be a strong and even decisive principle of construction, and we concur with Claimant that the principle applies equally to all kinds of statutory provisions. We do not, however, believe that it is inherently compelling, or that it has great force in statutory amendment contexts like that of this case.\nThe apparent negative pregnant inference of legislative intent arises from selective legislative silence or selective legislating (adding, amending or repealing text) among multiple statutory provisions. That can sometimes be viewed as lack of comprehensive legislative draftsmanship, rather than as reflecting intent. On the other hand, negative inference arising from selective legislating among statutory texts is most powerful within a single enactment \u2014 i.e., a selective act of legislating done at one time by a legislative body in one Act.\nThat was the context in the federal Anti-Drug Abuse Act of 1986 (the ADAA) that was reviewed in Gozlon-Peretz v. United States (1991), 498 U.S. 395, as to specific delayed effective date provisions contained in some but not all sections of the ADAA. That was also the case in Russelo.\nThis case, unlike Gozlon-Peretz and Russelo but like Field, involves a discrete subsequent amendment to one section of a pre-existing Act rather than a simultaneous legislative action involving multiple provisions of a single Act. In this context, we consider the doctrine as persuasive \u2014 as it impacts the resulting text of the larger amended statute \u2014 but not dispositive.\nClaimants argument is cogent and in a different application might carry the day. But not in the face of the legislative history and style of this statute. Having reconsidered the legislative history again, the Court adheres to its conclusion that the clear general language of the immunity clause, placed into the one section of the Vehicle Code that then addressed, inter alia, immunity for erroneous vehicle titles, prevails over the apparent negative pregnant inference arising out of the legislative failure to repeat the added immunity clause in other sections of the Vehicle Code.\nConstruction of section 3 \u2014 114(i):\nThe Rule of Narrow Construction of Statutory Immunities\nIn a second argument forcefully advanced on rehearing, the Claimant urges the well-settled rule of construction favoring narrow interpretation of statutoiy immunities as being contrary to the common law. We recognize that this longstanding judicial bias against statutory immunization of common law liabilities runs deep in Illinois law (e.g., Molitor v. Kaneland Community School Dist. No. 302 (1959), 18 Ill. 2d 11.) We would apply that narrow construction doctrine without hesitation if it were applicable here. It is not, for two reasons.\nFirst, the issue here is not an ambiguity of statutory immunity language, which is susceptible of being read broadly or narrowly. In that kind of case, the doctrine of narrow construction of immunity grants would likely provide the rule of decision. In this case the immunity language is perfectly general and unambiguous. The interpretation dispute here concerns not the language but the editorial placement of that language as an indicator of legislative intent.\nSecond, the liability being immunized here is a State liability that did not exist in our Illinois common law, at least not since the Constitution of 1870, which constitutionalized the doctrine of sovereign immunity in Illinois (1870 Ill. Const. 1870, Art. IV, section 26), and arguably since statehood in 1818, as the liability of the State of Illinois has always been statutory rather than a common law right. See, Spiegel, The Illinois Court of Claims: A Study of State Liability, at 60-62 (U. Ill. Press, 1962), reviewing inter alia, the three statutes in effect from 1819-1870 that authorized claims against the State by suit against the Auditor of Public Accounts.\nThere is simply no established common law State liability in Illinois for a State officers or agency\u2019s issuance of erroneous vehicle title documents. Thus the common law premise underlying the narrow construction rule has little if any application here.\nThe section 25 Exhaustion of Alternative Sources Requirement: Pursuit of a Tortfeasor into Bankruptcy Court\nIn our initial opinion, we concluded that the Claimant failed to show that it had fully exhausted its damages claim against Mr. LeFeur \u2014 or to show \u201cexhaustion of reasonable efforts\u201d to pursue Mr. LeFeur \u2014 who sold the Claimant\u2019s collateral (the liened vehicle) to a bona fide purchaser, thus committing a conversion of the Claimant\u2019s property. We found, inter alia, that Claimant\u2019s exhaustion defense \u2014 that pursuit of the tortfeasing LeFeur would be futile due to the bankruptcy discharge of his debts \u2014 was, on the current record, inadequate; that Claimant had not shown that a challenge to Mr. LeFeur\u2019s discharge in the bankruptcy court, based on his fraudulent conversion, would have been futile, and therefore Claimant was obliged to pursue that objection to discharge which it did not do, thereby failing to meet the mandate of section 25 of our statute.\nThe issue, of course, is the extent to which our exhaustion requirement mandates a litigant in this Court to have pursued a source of payment that filed bankruptcy.\nOn rehearing, Claimant contends that we applied the wrong bankruptcy law standard for barring a discharge of a debtor for the kind of tortious conduct involved here, and that we therefore imposed an erroneous \u2014 and excessive \u2014 burden on the Claimant to pursue Mr. LeFeur into bankruptcy court, as a section 25 exhaustion condition of obtaining relief in this Court. Claimant contends that under the applicable standards under section 523 of the Bankruptcy Code (11 U.S.C. 523), it would have been futile and frivolous for it to contest Mr. LeFeur s discharge from his liability to the Claimant, and hence its exhaustion duty as to Mr. LeFeur was extinguished along with Mr. LeFeur s liability.\nThere is merit to the Claimants argument, under section 523 of the Bankruptcy Code, although this issue appears to be governed by section 523(a)(6) (addressing \u201cwillful and malicious injury by the debtor to another entity or to the property of another entity\u201d) rather than by section 523(a)(2) (pertaining to fraudulent \u201cobtaining of money through an extension of credit\u201d), which is emphasized by the Claimant. This case, on the current record, involves no allegations or suggestions of fraud by Mr. LeFeur in his original loan application to the Claimant credit union; rather it involves a conversion of the Claimants collateral long after the loan was made. This situation is governed by section 523(a)(6). See, Field v. Mans (1995), 516 U.S. 59, 73-74; In re Krulik, 6 B.R. 443 (Bk. M.D. Tenn. 1980); In re Long, 44 B.R. 300, 306-307 (Bk. D. Minn. 1983); In re Long, 774 F.2d 875 (8th Cir. 1985).\nUnder section 523(a)(6), as under its predecessor bankruptcy provisions, it has long been held, as Claimant now contends, that to preclude a discharge in bankruptcy due to a tortious conversion of a creditors property, \u201ca heightened level of culpability must be found, going beyond recklessness and beyond intentional violation 9 * *.\u201d (In re Long, 774 F.2d at 881.) As Justice Cardozo wrote long ago, applying virtually the same statutory bankruptcy language now contained in section 523(a)(6), and in a situation also involving conversion of a lenders vehicle collateral:\n\u201cThe respondent contends that the petitioner was hable for a willful and malicious injury to the property of another as the result of the sale and conversion of the car {an Auburn sedan] in his possession. There is no doubt that an act of conversion, if willful and malicious, is an injury to property within the scope of this exception. 000 But a willful and malicious injury does not follow as of course from every act of conversion, without reference to the circumstances.\n#66\nNothing in the judgment of the Illinois Appellate Court is at war with the exculpatory finding made upon the trial. \u00b0 \u00b0 Its only comment is that under the law of Illinois malice and wrongful intent are not necessary constituents of a cause of action in trover. This, of course, is true, but, though true, it is beside the mark. The discharge will prevail as against a showing of conversion without aggravated features.\u201d Davis v. Aetna Acceptance Co. (1934), 293 U.S. 328, 331-333.\nIt is thus clear that Mr. LeFeurs fraudulent act of conversion, without more \u2014 i.e., without aggravation \u201cgoing beyond recklessness and beyond intentional violation\u201d (In re Long, supra) or without \u201cwillfulness and malice\u201d (section 523(a)(6); Davis, supra) \u2014 is not enough to bar a discharge.\nClaimant is therefore correct in its assertion that in order for it to have successfully pursued and exhausted Mr. LeFeurs liability to it for conversion of the collateral, it would have had to prove more than mere fraud and more than mere conversion in the bankruptcy court proceedings.\nApplying this section 523(a)(6) bankruptcy standard, we find that the current record in this case, which has come to us on the Respondents motions to dismiss, is inadequate as to the circumstances surrounding Mr. LeFeurs conversion/sale of the liened automobile for this Court to make any finding as to the efficacy of the Claimants effort to prevent a discharge, had it sought to do so. Thus we cannot now determine whether or not it would have been futile for this Claimant to pursue Mr. LeFeurs liability into bankruptcy court or whether the circumstances could support a finding of aggravating conduct that would bar a discharge and preserve his liability to the Claimant.\nAccordingly, the Court will reverse its prior finding and will deny the Respondent\u2019s motion to dismiss on this exhaustion ground. We would remit this issue for trial if this case were to be tried, and if the Respondent wished to maintain exhaustion as a defense to this claim.\nHowever, our conclusion, renewed in this supplemental opinion, that the Secretary is immune from liability for Mr. LeFeurs conversion that he effected using an \u201cerroneous title certificate\u201d requires that we reaffirm our dismissal of this claim for that reason.\nConclusion\nFor the foregoing reasons, it is hereby ordered:\n1. The Court\u2019s order of August 30, 1999 granting Respondent\u2019s motion to dismiss for failure to ex-. haust remedies against Mr. LeFeur is vacated, and said motion is denied;\n2. The Court\u2019s orders of August 30,1999 granting Respondent\u2019s motion to dismiss this claim as barred by the immunity of the Secretary of State under section 3 \u2014 114(i) of the Vehicle Code, and dismissing this claim, is reaffirmed.\nWe recognize that this clause is arguably ambiguous. For present purposes, we assume that the phrase \"of any interest\u201d in section 3 \u2014 114(1) encompasses an unauthorized transfer of a partial interest in a vehicle, and we note the Vehicle Code refers to the granting of a security interest (lien) as a form of transfer of an interest in the vehicle. See section 3 \u2014 112(a). 625ILCS 503 \u2014 112(a).\nGlenview State Bank also cited Bank of Lyons v. State (1967), 26 Ill. Ct. Cl. 104 and Blake v. State (1951), 21 Ill. Ct. Cl. 141, which both rejected claims on erroneous vehicle titles, but not due to the statutory immunity.\nLaws of Illinois, 1819, at 184; Revised Code of Laws of Illinois, 1829, at 171; and Revised Statutes of Illinois, 1845, at 394, 464. The 1829 and 1945 statutes made the judgment subject to review and appropriation by the General Assembly. That formulation \u2014 adjudication subject to legislative appropriation \u2014 has thus been the Illinois system for State liability under four state constitutions for over 170 years.\n\u201cSubdivision 2 [of former 11 U.S.C. 35] excludes from the release \u2018liabilities for \u00b0 \u00b0 \" willful and malicious injury to the person or property of another.\u2019\u201d Davis, infra, 293 U.S. at 331.", "type": "majority", "author": "Epstein, J. Epstein, J." } ], "attorneys": [ "Kehart, Shafter, Webber (Mark D. Gibson, of counsel), for Claimant.", "Jim E. Ryan, Attorney General (Steven L. Matrisch, Assistant Attorney General, of counsel), for Respondent." ], "corrections": "", "head_matter": "(No. 98-CC-2601\nDecatur Earthmover Credit Union, Claimant, v. George H. Ryan, Secretary of State, Respondent.\nOpinion filed August 30, 1999.\nSupplemental opinion filed May 9, 2000.\nKehart, Shafter, Webber (Mark D. Gibson, of counsel), for Claimant.\nJim E. Ryan, Attorney General (Steven L. Matrisch, Assistant Attorney General, of counsel), for Respondent." }, "file_name": "0414-01", "first_page_order": 610, "last_page_order": 631 }