author: JUSTICE McNAMARA

text:
    MOTOR VEHICLE CASUALTY COMPANY, Plaintiff-Appellant and CrossAppellee, v. GSF ENERGY, INC., et al., Defendants (Hatfield Electric Company, Defendant-Appellee and Cross-Appellant).
    First District (6th Division)
    No. 1—89—1027
    Opinion filed December 29,1989.

      Kiesler & Berman, of Chicago (Robert L. Kiesler and Jeanne M. Zeiger, of counsel), for appellant.
    Lewis, Overbeck & Furman, of Chicago (Paul V. Esposito, of counsel), for appellee..
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff-appellant and cross-appellee, Motor Vehicle Casualty Company, appeals from an order of the circuit court of Cook County denying its motion for summary judgment and granting summary judgment to defendant-appellee and cross-appellant, Hatfield Electric Company. Motor Vehicle contends that the trial court improperly found it had a duty to defend Hatfield against an allegation predicated on a contractual indemnity provision and that, accordingly, it had a duty to defend the entire underlying third-party action brought against Hatfield by GSF Energy, Inc. (formerly known as Getty Synthetic Fuels, Inc., and referred to herein as GSF). Hatfield cross-appeals, contending that the trial court erred insofar as it ruled that, although Motor Vehicle was obligated to defend Hatfield against the contractual indemnity count and accordingly against the entire third-party action, it had no independent duty to indemnify Hatfield against the contribution claim or to defend Hatfield against the failure to procure insurance claim.

The parties have stipulated to the following facts. Motor Vehicle issued a general liability policy to Hatfield with coverage commencing on April 1, 1983, and expiring on April 1, 1986. Under Coverage E, the policy provided comprehensive general liability insurance for bodily injury. The policy contained numerous exclusions from coverage. Exclusion (j) stated that Coverage E does not apply

“to bodily injury to any employee of the Insured [Hatfield] arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damage arising out of such injury.”

Exclusion (j) further provided that the exclusion does not apply to liability assumed by the insured under any incidental contracts. The term “incidental contract” was defined in a rider to the policy as “any contract or agreement relating to the conduct of the Named Insured’s business.” The rider also contained certain exclusions to the insurance afforded with respect to liability assumed under an incidental contract. Specifically, the exclusion provided that coverage does not apply

“to bodily injury or property damage for which the Insured [Hatfield] has assumed liability under any incidental contract, if such injury or damage occurred prior to the execution of the incidental contract.”

On December 15, 1983, Hatfield orally contracted to perform electrical work at the GSF refinery located in Blue Island, Illinois. On December 20, 1983, Hatfield’s employee, Clements, sustained injuries while working at the refinery. On January 25, 1984, the December 15, 1983, oral contract was memorialized by GSF’s purchase order. Hatfield accepted the contract on February 14, 1984. The parties have stipulated that witnesses for both GSF and Hatfield would testify that when the parties entered the oral contract, they intended that the terms and conditions recited in the purchase order would be binding upon them as of the time they entered into the oral contract.

The written contract between Hatfield and GSF contained a number of relevant provisions. It provided that Hatfield would “maintain adequate protection for all work and materials furnished thereunder from damage or loss.” Additionally, Hatfield agreed to defend and indemnify GSF from liability for Hatfield’s negligence.

In 1985, Clements brought suit against GSF. Clements alleged in his amended complaint that GSF violated the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.). Specifically, Clements alleged that GSF was in charge of the construction at the refinery and that GSF violated the provisions of the Structural Work Act in that the ladder Clements was using was unsafe, and that GSF should have provided him with a ladder which allowed for firm footing during his installation of the electrical conduit.

GSF denied the material allegations of the amended complaint and subsequently filed a two-count, third-party action against Hatfield. In count I, GSF sought contribution under the Illinois Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.). In count II, GSF sought indemnity for breach of contract. In that regard, GSF alleged that Hatfield failed to assume full responsibility for providing a safe place of work for Clements to work; failed to obtain insurance to protect GSF as provided for in the agreement; and failed to provide proper equipment and supervision for work done under the agreement.

Motor Vehicle filed a request for declaratory relief. Motor Vehicle sought a declaration that it had no duty to defend or indemnify Hatfield with respect to count I of GSF’s third-party action. Motor Vehicle alleged that it had no such duty because the employee exclusion of Hatfield’s policy bars coverage for a contribution action based on Hatfield’s tort liability to its employees. In count II of its complaint for declaratory relief, Motor Vehicle sought a declaration that it had no duty to defend or indemnify Hatfield with regard to count II of GSF’s third-party action because Hatfield’s contractual liability coverage specifically excludes retroactive coverage for injuries which occurred prior to the execution of the contract. Count III of Motor Vehicle’s complaint alleged that Motor Vehicle was not required to defend or indemnify Hatfield from Hatfield’s alleged failure to procure insurance for GSF. Count IV alleged that any agreement by Hatfield to indemnify GSF for GSF’s negligence was void as against public policy, and therefore, that Motor Vehicle was not obligated to defend or indemnify Hatfield from the contractual indemnity claim.

Both Hatfield and Motor Vehicle moved for summary judgment on all four counts of Motor Vehicle’s complaint. The trial court found in favor of Hatfield on all four counts. The court found that no exclusionary language in the policy would operate to bar coverage. The court concluded that Motor Vehicle had a duty to defend Hatfield against all of the allegations contained in GSF’s third-party complaint. The court predicated its ruling on its determination that Motor Vehicle had a duty to defend Hatfield against the allegations contained in count II of the third-party complaint that Hatfield failed to provide a safe place to work and failed to provide proper equipment. The court reasoned that this determination triggered a duty to defend the remaining allegations of the complaint, although Motor Vehicle had no independent duty to defend these allegations. The court additionally found that the indemnification provision relating to count II of the third-party complaint did not violate the public policy of Illinois because the provision required Hatfield to indemnify GSF for Hatfield’s negligence, not GSF’s negligence. The court noted, however, that its decision addressed only the issue of Motor Vehicle’s duty to defend and not Motor Vehicle’s duty to indemnify. Similarly, we will address only the duty to defend issue.

Initially we note that Hatfield’s position that Motor Vehicle’s declaratory action was premature is incorrect. When an insurer is uncertain as to whether it should defend or refuse to defend, the filing of a declaratory judgment action to determine its obligations and rights is not premature. (Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill. 2d 481, 263 N.E.2d 823; Apex Mutual Insurance Co. v. Christner (1968), 99 Ill. App. 2d 153, 240 N.E.2d 742.) Accordingly, Motor Vehicle’s request for declaratory relief was appropriate.

Motor Vehicle first contends that its policy, in the exclusionary provisions of the rider, specifically precludes coverage for injuries which occurred prior to the execution of an incidental contract. Motor Vehicle notes that Clements sustained his injuries before the written contract was executed. The trial court, however, found that the operative contract was the oral contract entered into on December 15, 1983, and that the written contract merely memorialized the terms of the oral contract. Accordingly, the trial court found that the exclusionary provisions of Motor Vehicle’s policy did not apply. Our review of the record reveals no evidence to the contrary, and therefore, we find that the trial court properly determined that the December 15, 1983, oral contract controlled.

Because the trial court predicated its determination that Motor Vehicle was obligated to defend the entire underlying third-party action on its finding that Motor Vehicle had a duty to defend the allegations based on contractual indemnity, we first will address the propriety of this finding. Motor Vehicle contends that the indemnity agreement contained in Hatfield’s construction contract is void as against the public policy of Illinois, as embodied in “An Act in relation to certain contracts” (the Indemnity Act). (Ill. Rev. Stat. 1983, ch. 29, par. 61.) Accordingly, Motor Vehicle concludes that it need not defend Hatfield in an action to enforce that agreement. The trial court, however, found that the indemnity provision at issue merely required Hatfield to indemnify GSF for Hatfield’s negligence, not for GSF’s own negligence. Thus the court concluded that the provision did not violate the Indemnity Act. We believe that although the trial court’s interpretation of the provision was correct, its conclusion that the provision did not violate the Act was erroneous.

The Indemnity Act provides as follows:

“With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that ’ person’s own negligence is void as against public policy and wholly unenforceable.” (Ill. Rev. Stat. 1983, ch. 29, par. 61.)

The indemnity agreement between Hatfield and GSF provides as follows:

“Indemnity. Contractor [Hatfield] hereby agrees to defend, indemnify and hold harmless Getty [GSF] and its agents and employees from and against any and all suits, liability, actions, claims, damages, losses and expenses, including reasonable attorneys’ fees, for injury or death to person(s) or from damage or loss to property, to include contractors tools, equipment, materials and supplies arising out of or in connection with the performance of the work, the furnishing of the materials or the completion of the project by Contractor [Hatfield] or by any subcontractor, agent or employee of Contractor [Hatfield].”

It is clear from the plain language of the indemnity agreement that Hatfield expressly agreed to indemnify GSF against Hatfield’s own negligence, not against GSF’s own negligence. Accordingly, on its face, the agreement does not violate the Indemnity Act. (See Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946; John Griffiths & Son Co. v. National Fireproofing Co. (1923), 310 Ill. 331, 141 N.E. 739.) Nonetheless, in the context of a Structural Work Act action, a different result obtains.

Here, in order for GSF to invoke the protection afforded by the indemnity agreement contained in its contract with Hatfield, it first must be found liable to Clements for a violation of the Act. In any action under the Structural Work Act, if a party is found to be liable to the plaintiff, there necessarily has been a determination of that party’s culpability. (Ryan v. E.A.I. Construction Corp. (1987), 158 Ill. App. 3d 449, 511 N.E.2d 1244.) Liability raider the Structural Work Act specifically requires a finding that the defendant “wilfully violated” the statute, even if the defendant is only passively or technically negligent. (Ryan v. E.A.I. Construction Corp. (1987), 158 Ill. App. 3d 449, 511 N.E.2d 1244; Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 439 N.E.2d 126; Ill. Rev. Stat. 1983, ch. 48, par. 69.) Thus, in this setting, GSF must first have been found to have wilfully violated the Structural Work Act before it can look to Hatfield for indemnification. The underlying implication is an attempt to uphold an express agreement to reimburse GSF for liability directly attributable to its own violation of the Act, not liability imposed vicariously or strictly. This is the type of agreement that is proscribed by the Indemnity Act. (Hibbler v. Ockerlund Construction Co. (1985), 130 Ill. App. 3d 30, 473 N.E.2d 597. See also Stifle v. Marathon Petroleum Co. (7th Cir. 1989), 876 F.2d 552.) A contract which purports to relieve a tortfeasor of some or all of its liability, premised upon its own negligence, cannot stand in light of the Indemnity Act. Stiffle v. Marathon Petroleum Co. (7th Cir. 1989), 876 F.2d 552, 559.

Accordingly, we conclude that the trial court erred in concluding that the indemnity provision contained within the contract between Hatfield and GSF did not violate the Indemnity Act. We find that the indemnification agreement, as it purports to indemnify GSF for liability arising exclusively from Hatfield’s work performance, does not run afoul of the Indemnity Act. Nevertheless, we find that the interpretation which necessarily flows from GSF’s attempt to invoke the protection of that agreement would result in á violation of the Indemnity Act. Therefore, the provision is void as against the public policy of Illinois, and GSF cannot prevail in its attempt to have Hatfield indemnify it pursuant to that provision.

Having determined that the indemnity agreement which GSF attempts to invoke is void as against public policy, we next must determine whether Motor Vehicle nonetheless has a duty to defend Hatfield in that action.

The law is clear that an insurer must defend an insured when a complaint has been filed against the insured when the allegations of the complaint are sufficient to bring the case either within or potentially within the policy coverage. (Sheppard, Morgan & Schwaab, Inc. v. United States Fidelity & Guaranty Co. (1976), 44 Ill. App. 3d 481, 358 N.E.2d 305; Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 239 N.E.2d 498; McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 209 N.E.2d 833.) Underlying this rule is the principle that the duty to defend is broader than the duty to pay. (Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914.) Nonetheless, when the complaint alleges facts which, if true, would exclude coverage, the potentiality of coverage is not present and the insurer has no duty to defend. Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914.

We believe that GSF’s third-party complaint against Hatfield alleges facts which exclude coverage. In count II of the third-party complaint, GSF seeks indemnification from Hatfield for “any costs, fees, judgments, settlements or expenses experienced by HATFIELD ELECTRIC COMPANY in defending against the action brought by the plaintiff [Clements] and in prosecuting this Third Party Complaint.” We assume that the quoted language should read that GSF seeks indemnification from Hatfield for “any costs, fees, judgments, settlements or expenses experienced by GETTY [GSF] in defending against the action brought by the plaintiff and in prosecuting this Third Party Complaint.”

As we noted earlier, the basis for GSF’s count II is the indemnification provision of the contract between GSF and Hatfield. In the context of this Structural Work Act action, this provision is void as against the public policy of Illinois. One may not seek insurance coverage against a void agreement to indemnify. (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.) Accordingly, insofar as count II is predicated upon the void indemnification provision, it alleges facts which exclude coverage and Motor Vehicle has no duty to defend. Thus, we find that the trial court erroneously granted Hatfield’s motion for summary judgment on this issue. Additionally, we find that to the extent the trial court based its determination that Motor Vehicle was required to defend the remaining allegations of the third-party complaint on its resolution of this first issue, it did so improperly. Accordingly, we next must determine whether Motor Vehicle had a duty to defend the remaining allegations, independent of the “bootstrap” duty imposed at the trial level.

Count II of the third-party complaint urges liability on the part of Hatfield for its failure to procure insurance coverage for GSF. Specifically, GSF alleges that Hatfield “failed to obtain insurance to protect the third party plaintiff [GSF] as provided for in Paragraph 3 of the subject agreement.” Paragraph 3 of the agreement provides that Hatfield shall obtain workers’ compensation insurance, general public liability insurance, and aircraft liability insurance. On the liability policies, GSF was to be named as an additional insured. Hatfield failed to name GSF as an additional insured on its general public liability insurance policy. In its cross-appeal, Hatfield contends that Motor Vehicle has a duty to defend it against GSF’s allegation that this failure to procure insurance resulted in a breach of contract. Motor Vehicle maintains, however, that it has no such duty.

In its order granting summary judgment to Hatfield, the trial court stated that Motor Vehicle had a duty to defend the allegation that Hatfield failed to procure insurance only because its determination that Motor Vehicle had a duty to defend the contractual indemnity allegation triggered a duty to defend the remaining allegations of the third-party complaint. The trial court specifically stated that “Hatfield does not contend that Motor Vehicle Casualty must indemnify it against the claim that Hatfield failed to obtain insurance with G.S.F. as a beneficiary.” The court at no time indicated that Motor Vehicle had an independent duty to defend Hatfield with respect to GSF’s allegation that Hatfield failed to procure insurance. We hold that Motor Vehicle has no duty to defend Hatfield against this allegation and, accordingly, find that insofar as the trial court so ruled, it was correct.

GSF points out that it is the law in Illinois that when a complaint alleges several causes of action or theories of recovery against an insured, the insurer may be obligated to defend the entire action even if only one cause of action is potentially within policy coverage. (Fidelity & Casualty Co. v. Nalco Chemical Co. (1987), 155 Ill. App. 3d 730, 509 N.E.2d 446; Tuell v. State Farm Fire & Casualty Co. (1985), 132 Ill. App. 3d 449, 477 N.E.2d 70.) Nevertheless, because we have determined that Motor Vehicle had no duty to defend Hatfield against GSF’s attempt to invoke the protection of the contractual indemnity provision, that principle is not applicable here.

As noted previously, an insurer is obligated to defend only those complaints which contain allegations sufficient to bring the case either within or potentially within the policy coverage. (Sheppard, Morgan & Schwaab, Inc. v. United States Fidelity & Guaranty Co. (1976), 44 Ill. App. 3d 481, 358 N.E.2d 305.) Here, Hatfield’s allegation is not sufficient to bring the case either within or potentially within the policy coverage. Motor Vehicle’s policy to insure Hatfield was a comprehensive general liability insurance policy which protects only against bodily injury and property damage. Failure to procure insurance simply is not an act protected by the insurance policy. Accordingly, we conclude that Motor Vehicle had no duty to defend Hatfield against the allegation that it breached its contract with GSF by failing to procure insurance. The trial court’s findings on this issue were correct.

We next will address the propriety of the trial court’s ruling with respect to count I of the third-party complaint. Count I alleges a contribution action. The trial court initially found that Motor Vehicle had no duty to indemnify Hatfield against GSF’s contribution allegation. However, the trial court ruled that Motor Vehicle nonetheless must defend the case because it had a duty to defend under count II of the third-party action. Motor Vehicle appeals this ruling while Hatfield cross-appeals the initial finding.

In count I of the third-party complaint, GSF alleges that if it is found to be liable to Clements in any amount “it will be entitled to contribution from the third party defendant, HATFIELD ELECTRIC COMPANY, in such amount as is necessary to adjust the parties to their respective degrees of culpability.” In its cross-appeal, Hatfield urges this court to find that its contractual liability rider affords coverage for count I and that the exception to exclusion (j) demonstrates the intent to provide coverage for contractual liability. We believe, however, that a reading of the plain language employed by GSF in count I requires us to find that count I alleges solely a contribution action, and our analysis of count I is based on this conclusion. See Dominick’s v. American Manufacturers Mutual Insurance Co. (1987), 163 Ill. App. 3d 149, 516 N.E.2d 544 (the duty of an insurer to defend an action is to be determined solely from the allegations of the complaint).

Motor Vehicle’s policy to insure Hatfield provides that it will provide coverage for “all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.” In Exclusion (j), the policy excludes coverage for “bodily injury to any employee of the Insured [Hatfield] arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury.” Here, it is undisputed that Clements sustained his injuries while employed by Hatfield. Accordingly, Exclusion (j) applies, and Motor Vehicle need not provide coverage to Hatfield for any damages which Clements may be awarded. Because there is no basis for coverage, Motor Vehicle need not defend Hatfield in an action to recover those damages. See Aetna Casualty & Surety Co. v. Coro net Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914.

Hatfield contends, however, that the exception to Exclusion (j) applies and that, accordingly, the underlying action potentially could fall within Motor Vehicle’s coverage. The exception to Exclusion (j) provides that Exclusion (j) “does not apply to liability assumed by the Insured [Hatfield] under an incidental contract.” While this exception would operate to afford coverage for liability accruing under a valid incidental contract, it cannot operate to afford coverage here, as the liability alleged is based in contribution under the Illinois Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.) and not in contract. Thus, the exception to Exclusion (j) does not apply, and Motor Vehicle is under no obligation to defend the underlying action. The trial court correctly concluded that Motor Vehicle had no duty to defend Hatfield against GSF’s third-party contribution claim.

In summary, we find that the trial court erred in granting Hatfield’s motion for summary judgment and in denying Motor Vehicle’s cross-motion for summary judgment. The trial court improperly determined that Motor Vehicle had a duty to defend Hatfield against the contractual indemnity claim which alleged, among other things, that Hatfield failed to provide a safe place to work and failed to provide proper equipment. Thus the trial court’s foundation for its determination that Motor Vehicle had a duty to defend Hatfield against the remaining allegations of the third-party action was improper. The trial court stated that Motor Vehicle had no duty to defend Hatfield against these allegations, and we concur in this determination. Thus, Motor Vehicle has no duty to defend Hatfield against any of the allegations contained in the third-party complaint and, accordingly, is entitled to summary judgment on all four counts of its declaratory action.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded with directions to grant summary judgment in favor of Motor Vehicle Casualty Company.

Judgment reversed and remanded with directions.

EGAN, P.J., and LaPORTA, J., concur.

       Justice Quinlan, who has retired, participated in oral argument. Justice LaPorta has read the briefs and has listened to the tape of the oral argument.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT CARL McGRATH et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—87—2621,1—87—2805 cons.
    Opinion filed December 29, 1989.

      James R. Epstein, of Epstein, Zaideman & Esrig, RC. (Mary Ellen Dienes, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Mary Schultz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The defendants, Herbert McGrath and Keith McGrath, were jointly tried in a case initiated before a jury in the circuit court of Cook County. Following the presentation of the State’s case, however, the defendants waived their right to a jury trial. Herbert McGrath had been charged with two counts of attempted murder, four counts of aggravated battery and two counts of armed violence. Keith Mc-Grath had been charged with one count of attempted murder, four counts of aggravated battery and one count of armed violence. The charges brought against the defendants arose from an altercation which had occurred on March 15, 1986, when the defendants were attacked by six men. The circuit court found Herbert McGrath guilty of armed violence and one count of aggravated battery. The court sentenced him to six years’ imprisonment on the armed violence count and three years’ imprisonment on the aggravated battery count, to run concurrently with the six-year sentence. Keith McGrath was found guilty of one count of aggravated battery and was sentenced to four years’ imprisonment. Defendants now appeal their convictions to this court.

THE TRIAL

At trial, the State presented the testimony of five of the six attackers. The first, witness was Robert Piunti, who testified that on the night of March 15, 1986, he was at the Jubilation Lounge (Jubilation), a bar in Chicago Heights, Illinois. Piunti said that around 3 a.m., he was standing in a hallway at the Jubilation when the defendants walked up to him, called him a “homo,” and began hitting him in the face. Piunti claimed that he had never seen the defendants before this incident. Piunti stated that the defendants continued hitting him until two bouncers broke up the fight. The bouncers then escorted Piunti outside the bar.

According to Piunti, after the bouncers took him outside the bar, he sat in the parking lot with his friend, David Nardi, until he saw the defendants leave the bar. Piunti decided to follow the defendants in his car, a Pontiac Trans Am, because he was angry with them. Nardi, Joe Ciarrocchi, George Friel and Elias Michalopoulous rode with Piunti, and John Ciarrocchi followed in his own car. Piunti said that the defendants each drove separate cars, so he followed only one of them. Piunti followed the car from Halsted Street to 174th Street and then to Wooded Path Drive in East Hazel Crest, Illinois. Piunti said that he lost the car when he turned onto Wooded Path Drive, so he drove a short distance down the street and then turned around and came back. When he turned around, he saw the defendants standing in the street, so he parked his car and began walking toward them. Piunti testified that when he was 10 to 12 feet away from Herbert McGrath, Herbert fired a gun and hit him above the ankle on his right leg. Piunti then ran toward a nearby apartment building and saw Herbert walk over to his Trans Am and shoot out the back window. At that point, Piunti said, the police arrived and took him to In-galls Memorial Hospital, where his leg was X-rayed, cleaned and bandaged.

On cross-examination, Piunti admitted that he and his friends may have followed the defendants in order to seek revenge. Further, Piunti testified that the police were at the Jubilation after the fight broke out, but admitted that he did not complain to the police about what had happened in the bar. Piunti also admitted that it was possible that when he was following the car driven by one of the defendants, he may have pulled up alongside the car and exchanged words with the defendant, and admitted that someone in his car might have told the defendant, “You’re dead meat.” Piunti denied, however, that he “wedged” his car between the defendants’ cars to separate them, and also denied that he knew when he drove down Wooded Path Drive that one defendant had driven into an apartment complex parking lot and, therefore, parked his car in front of the entrance so that the other defendant could not get into the lot. Piunti said he did not recall hearing the defendants telling him to go away because they did not want any trouble. Piunti also stated that he did not know what happened to his friends during the altercation.

In addition, Piunti admitted on cross-examination that he did not see Herbert aim his gun, and did not see where the shot that hit him came from. Piunti stated that there were no streetlights on Wooded Path Drive, and consequently, it was very dark. Piunti then testified that as he was walking toward the defendants, before Herbert shot him, he did not feel threatened and was still angry, and may have even called the defendants “mother-fuckers. ” Piunti also conceded that as he was following the defendants, he and his friends might have discussed what they would do to the defendants and might have discussed “kicking some butt.” Finally, Piunti said that as he was approaching the defendants, he did not see anything in their hands because it was dark.

Joe Ciarrocchi testified as the State’s next witness. Joe testified that on March 15, 1986, around 3:20 a.m., he was in Piunti’s black Trans Am along with Piunti, Nardi, Friel and Michalopoulous. Joe said that they were following a car because the driver had attacked Piunti earlier, at the Jubilation. Joe stated that they followed the car from Halsted Street to 174th Street and then onto Wooded Path Drive. Joe testified that when they reached Wooded Path Drive, they drove a short distance and then turned around and parked the car. Joe said that Piunti got out of the car at this point, so he also got out of the car. Joe claimed that he and Piunti ran across the street because they saw the defendants standing there and, as they approached the defendants, Herbert McGrath pulled a gun and fired a few shots in their general direction. Joe heard someone say, “I got hit.”

Joe then told the court that when he heard someone yell that he had been hit, he froze because he was frightened, and Keith McGrath then approached him with some kind of black stick or club. Joe testified that Keith then hit him in the back of the head and the knees with the club. Joe said he did not fall to the ground, but was dizzy and staggered back toward Piunti’s car. When he reached the car, he saw that Keith was also walking toward the car, so he said to Keith, “You don’t have to hit me again, we’re leaving,” and indicated that he was just waiting for the person with the car keys. Joe claimed that Keith did not respond and instead hit the window on the driver’s side of the car with the club. Keith also hit Joe in the forehead with the club. Joe testified that he did not remember anything after that until he woke up in an ambulance. Joe said that he was taken to Ingalls Memorial Hospital and received nine stitches in his forehead, and had a total of seven lumps on the back of his head, five injuries to his face, and a bruise on the lower right side on his back.

On cross-examination, Joe testified that he had seen the defendants at Jubilation approximately two weeks before the March 15 incident, but said he did not know them personally and had never spoken with them. Joe conceded that he may have followed the defendants “to do justice, to even the score” for the defendants’ attack on Piunti. Joe also admitted that he got out of the car with Piunti and walked toward the defendants in order to get into a fight, but he denied that he called the defendants “mother-fuckers.”

Joe further testified on cross-examination that he heard two shots fired that night, but claimed he never heard any warning shots. Joe denied that he heard someone say, “Please leave, we don’t want any trouble” or “I’ve got a gun, go away, get out of here.” Joe admitted that Keith may have had reason to hit him because he and his friends were following Keith, but said that Keith was justified in using his fists only, not a nightstick or club. Joe also said that he did not remember seeing George Friel kicking a girl named Dawn Brenner. Finally, Joe said that it was dark in the parking lot where the altercation took place, but that he would be able to distinguish whether someone was holding a gun.

David Nardi testified as the State’s next witness. Nardi said that on March 15, 1986, at 3 a.m., he was at the Jubilation and heard that his friend, Piunti, had been hit. On that date, Nardi testified, he was six feet three inches tall and weighed 280 pounds. Nardi stated that he left the Jubilation with Piunti, Friel, Michalopoulous and Joe Ciarrocchi in Piunti’s car and drove down Halsted Street to 174th Street and then to Wooded Path Drive. Nardi testified that they were following a car but lost it on Wooded Path Drive, so they turned their car around and stopped. Nardi said that when they were stopped on Wooded Path Drive, he heard one gunshot and got out of the car. When he was exiting the car, he was nicked in the knee by a bullet, so he got back into the car. Nardi then heard another shot and saw Keith McGrath walk up to the car and put a black club through the passenger’s side window. Nardi said he then jumped into the driver’s seat and drove off to find a police officer. Nardi found an officer and told him that there had been a shooting, so the officer followed him back to the scene. When they arrived back at the scene, Nardi said, he saw Joe Ciarrocchi lying on the ground in a pool of blood. Nardi also testified that he was later taken to Ingalls Memorial Hospital, where his knee was cleaned and bandaged.

On cross-examination, Nardi denied that there was any conversation about “kicking the butts” of the defendants for hitting Piunti. Nardi further claimed that Piunti never parked his car so that it was blocking the car behind him and said that he never got out of Piunti’s car and tried to stop that car. Nardi did admit, however, that when he located a police officer, he never told the officer that he had been shot. Nardi also said that it was very dark in the apartment complex parking lot. Nardi testified that it was so dark, he would barely be able to distinguish whether someone was standing across the street and would not be able to tell what color clothing a person was wearing.

The State presented George Friel as its fourth witness. Friel said that on March 15, 1986, at 3:30 a.m., he was in the Jubilation parking lot and got into Piunti’s car along with Piunti, Nardi and Michalopoulous. Friel stated that they followed the defendants from Halsted Street to 174th Street and then to Wooded Path Drive, where they turned their car around and parked it. Friel testified that when they parked on Wooded Path Drive, he heard a sound like a firecracker and heard someone say they had a gun. Friel said that everyone then got out of Piunti’s car. Friel positioned himself by Piunti’s car so that he would not get shot and saw Keith McGrath beating Joe Ciarrocchi with a black stick. Friel said he saw Joe fall to the ground and saw Keith continue to beat Joe with the stick and kick him. Friel said that Keith did not stop beating Joe until he saw blood coming from Joe’s forehead. Friel testified that he then went over to Joe, who was shaking and unconscious and was bleeding from the head.

Next, according to Friel’s testimony, when he was trying to help Joe, he saw two girls, Jeanne Garriby and Keith’s girl friend, Dawn, fighting on the corner and went over to break up the fight. Friel said that as he tried to grab Jeanne off Dawn, Keith McGrath struck him in the back of the head with a stick. Friel stated that Herbert Mc-Grath then came up to him, put a gun to his forehead and said, “You’re going to die.” Dawn’s sister, Kelly, then ran over to Herbert and said “Don’t do it. He is trying to break up the fight.” Friel testified that Herbert then said, “You’re lucky,” and walked away. At this point, the police arrived.

Friel admitted on cross-examination that he and his friends wanted to beat up the defendants for hitting Piunti and that they discussed beating up the defendants when they were driving in Piunti’s car. Friel also said that he heard at least four shots that evening. Friel denied, however, that he was kicking Dawn in the back when Keith hit him. Finally, Friel testified that the area where the altercation took place was not well lit, although he claimed he would have been able to tell what color clothing someone was wearing.

The State’s fifth witness was John Ciarrocchi, who testified that he saw the defendants at the Jubilation on March 15, 1986, and had a conversation with them concerning an incident that had happened about two weeks earlier at the Contempo bar, where Keith had allegedly hit a girl that John knew. Later, John said, he heard that the defendants had hit Piunti, so he went outside the bar and saw Piunti and Nardi. The police arrived then and tried to get everyone out of the parking lot. John claimed that the police officers separated Herbert and Keith McGrath and made Keith leave the parking lot first. John saw Piunti start his car and saw a number of people get into it, so John decided to follow Piunti’s car. John testified that he followed Piunti’s car down Halsted Street, where they passed the car driven by Herbert McGrath. The cars then turned onto 174th Street and from 174th Street turned onto Wooded Path Drive. John claimed he was following Piunti because he knew that there would probably be another altercation and he wanted to prevent that.

John stated that he drove down Wooded Path Drive and then turned around. When he had turned around and was driving back toward 174th Street, Herbert McGrath came out from behind his car and hit his windshield with a bat or club. John then drove ahead a bit and stopped his car. When John got out of his car, he saw his brother Joe crossing the street and saw Herbert strike Joe with a club. John then heard gunshots and heard the defendants scream at them to get out of there and leave them alone because they did not want any trouble. John said that one or two of the gunshots were fired into the air and one was fired toward the ground in the direction of Piunti’s Trans Am. John testified that he then saw Keith go back toward Joe and hit him with the club again. When John went over to Joe, Joe was lying in a pool of blood. Shortly thereafter, the paramedics and police arrived.

John testified on cross-examination that he knew of the defendants before the March 15 incident because Herbert McGrath was dating his ex-girl friend, Robin Haskins. John denied telling the defendants when they were at Jubilation that he was going to beat them up for the incident at the Contempo bar. John claimed that all he told the defendants was that he wanted to hear their side of the story. John admitted that as he was following the defendants on Halsted Street, he tried to keep the defendants’ cars separate because he had heard that the defendants would not fight separately. John further said that he did not recall the lighting conditions that evening, although he said it was not bright enough for him to identify the defendants.

The State’s last witness was Officer Roy Janich. Janich testified that he was an East Hazel Crest police officer and on March 15, 1986, around 3:50 a.m., was called to 174th and Wooded Path Drive because he had received a report that there had been a shooting there. When he arrived on the scene, Janich saw several people standing around Joe Ciarrocchi, who was lying on the ground and was bleeding severely from the head. Janich said he was told that there had been a shooting involving two brothers, and said that the men pointed out the defendants’ vehicles as they were leaving the area, so he pursued their vehicles. Janich testified that he passed the vehicle driven by Herbert McGrath, but did not stop Herbert because there was a woman and small child in the car, and the description the men had given him of the defendants did not include a woman and child. Janich then followed the other car and pulled it over. Keith McGrath was driving that car. Keith exited his car, and when Janich looked inside the vehicle, he saw a police-style fiberglass baton and a leather gun holster. Janich then took Keith into custody and gave him his Miranda warnings.

At the police station, Janich said, Keith indicated that he understood his Miranda rights. Keith then told Janich that there had been an altercation at the Jubilation bar in Chicago Heights, and that the altercation had continued at 174th Street and Wooded Path Drive in East Hazel Crest, in the parking lot of the apartment complex where Keith lived. Keith said that when he and his brother, Herbert, arrived at his apartment, Herbert got out of his car and broke the windshield on one of the attacker’s cars with a club, and then handed the club to Keith. Keith admitted hitting Joe Ciarrocchi with the club, but denied that he hit Joe when he was down. Keith also said that Herbert pulled out a handgun and fired several rounds, wounding two of the attackers. Keith then told Janich where Herbert lived and said that Janich could probably find Herbert there.

Janich testified that he then proceeded to Herbert’s apartment and took Herbert into custody. Janich read Herbert his Miranda rights, and Herbert agreed to speak with Janich. Herbert told Janich that there had been an earlier incident at the Jubilation and that the attackers had followed him and his brother to Wooded Path Drive. Herbert told Janich that when he and Keith arrived at Wooded Path Drive, they exited their vehicles. Herbert grabbed his nightstick and broke out the windshield of John Ciarrocchi’s car, and then handed the nightstick to Keith. Janich testified that Herbert told him that he grabbed his .22 caliber handgun and fired two shots into the air and told everyone to stay back. Herbert then shot two of the victims in the leg and fired one shot into the rear window of Piunti’s vehicle.

On cross-examination, Janich said that when he first arrived on the scene, he assumed that Joe Ciarrocchi had been shot, because no one mentioned a beating with a club at that time. Janich also said that he was the first officer on the scene and that none of the men told him then that they had been shot. Janich further revealed that when he had interviewed Herbert McGrath at the police station, Herbert told him that when he arrived at Wooded Path Drive, several of the attackers came after him so he fired two gunshots into the air. Janich admitted that based on his interviews with the six men, he believed that they “were looking for trouble” when they followed the defendants on March 15, 1986. Janich also said that he did not remember Friel ever telling him that Herbert put a gun to his forehead, and said that if Friel had told him that, he would have put it in his police report. In addition, Janich said that Friel told him he could not be positive that it was Keith McGrath that struck him in the back of the head with the club. Finally, Janich stated that in his report, he wrote that Nardi identified Keith McGrath as the one who damaged Piunti’s car, but that Nardi told him that he could not identify Keith as the one who struck Joe Ciarrocchi.

Following Janich’s testimony, the State rested. The defendants moved for a directed finding, which the trial court denied. The defendants then waived their right to a jury trial, and the case proceeded as a bench trial. The defendants then presented their case.

Herbert McGrath testified in his own defense and said that in March 1986, he was employed at the Diamond Detective Agency (Diamond) and, as part of his employment, carried a nightstick. Herbert said that the nightstick removed from the car by Officer Janich was not his, but was probably his brother’s, because Keith was also employed by Diamond in March 1986. Herbert testified that on March 15, 1986, he went to the Jubilation around 12:30 a.m. with his brother, Keith, Keith’s girl friend, Dawn Brenner, and Dawn’s sister, Kelly Jordan. When they arrived at Jubilation, Herbert said, the girls went into the washroom while Herbert and Keith remained in the hallway nearby. Herbert said that John Ciarrocchi, whom he had never seen before, walked up to them and asked if they were the Mc-Graths. When Herbert said yes, John told Herbert that he wanted to know about the incident at the Contempo bar two weeks earlier. Herbert told John to talk to Keith, because Keith was the one involved in that incident. John then said that he wanted to hear the McGraths’ side of the story.

John then explained to the McGraths that Debbie Friel, George’s sister, wanted John and his friends to beat up the McGraths because of the Contempo incident. However, after hearing Keith’s side of the story, John told the McGraths that nothing was going to happen to them. Herbert said that nothing else happened until he and Keith were preparing to leave the bar, around 3 a.m. Herbert said that he was walking out with Robin Haskins when Keith said to him, “[tjhere’s some guy that said you and I were ‘homos’.” Herbert said that when he turned to see who Keith was referring to, he was “cold-cocked” by someone and then was jumped on by several people, including someone he later identified as Piunti. Herbert said his friend, Nick Matela, a bouncer at Jubilation, then pulled Piunti off Herbert’s back. Herbert testified that he was led to the washroom because his nose was bleeding, and as he was walking, he saw someone, later identified as Nardi, yelling to Keith, “I’m going to kill you. I’m going to kill you.”

After washing his face, Herbert testified, the bouncers had him wait in the vestibule of the bar until those who had attacked him left the bar. When the bouncers told them it was safe to leave, Herbert said, he left the bar with Robin Haskins and Debbie Ehringer, and his brother left with Dawn Brenner and Kelly Jordan. Herbert directed Debbie Ehringer, who was driving, to follow Keith’s car out of the parking lot because they were all going to Keith’s apartment. Herbert testified that as they were driving down Halsted Street, a black Trans Am pulled out behind Keith’s car. Herbert said that when they turned down 174th Street, he could not see Keith’s car anymore and he became anxious, so he told Debbie to go directly to Keith’s apartment. Herbert said that before they could reach Keith’s apartment, he saw a black Trans Am parked diagonally across the street and saw Nardi standing in front of the car waving, trying to get Debbie to stop her car. Herbert said he instructed Debbie to keep going because he saw several people filing out of the car and feared for his life. Herbert stated that Debbie then drove down Wooded Path Drive, where he got out of the car. Herbert claimed that he then told the girls to call the police.

Herbert then testified that he saw Keith standing next to his car, which was parked in the apartment complex parking lot. Herbert said that his car had been parked there all evening. Herbert noticed that Keith had a nightstick in his hand and said that Keith threw the nightstick to him. Herbert testified that he told Keith there was a gun in a gym bag in his car. Herbert instructed Keith to get the gun out of his car. At this point, Herbert said, he was very scared. Herbert then chased the Trans Am and tried to hit the front hood in order to get the car out of the parking lot. Herbert said that the car left the parking lot, but then another car swerved at him out of nowhere, and, as he jumped out of its way, he hit its windshield with his nightstick. At this point, the occupants of the Trans Am began walking toward him, later identified as Nardi, Piunti and Joe Ciarrocchi. Herbert said he could not be certain whether Michalopoulous was there.

Herbert testified that he then began running toward Keith’s apartment. The attackers chased him saying, “Let’s get him,” and yelling that he was “dead meat” and that they were going to kill him. When Herbert reached the corner, he said, he saw Keith standing there with his gun, so he asked Keith to give it to him. Keith then gave him the gun, and he gave Keith the nightstick. Herbert said that he then told the attackers, “It’s over. Go home. I have a gun.” Herbert stated that the attackers were yelling obscenities at him, so he fired two warning shots into the air and told them to leave. According to Herbert, three of the attackers continued running at him, so he fired the gun at the ground. However, Herbert denied that he aimed the gun at anyone. Herbert said that the group scattered, but then Nardi and someone else came toward him, so he fired another shot into the ground and this time everybody scattered.

Herbert next testified that he and Keith went over to the black Trans Am to tell everyone to leave. Nardi tried to swing at Herbert, so Keith took a swing at Nardi with the club, but missed and hit the windshield of the Trans Am. Herbert and Keith then saw Dawn Brenner fighting with another girl, and saw Friel kicking Dawn, so Keith went over and began kicking Friel. Keith then grabbed Dawn, and as Keith, Herbert and Dawn were walking away, Herbert was jumped by someone. When he was jumped, Herbert claimed, he still had his gun in his right hand, and the gun went off into the back window of the Trans Am. Herbert then started running, and Joe Ciarrocchi came after him, so Herbert hit Joe, causing Joe to fall. Herbert said that two more people jumped on him. As he was fighting those two off, Herbert saw Joe start to get up, so he walked over and kicked Joe in the head. Herbert testified that Joe went down again and, at this point, the fight stopped. Herbert said that he then left the scene in his car with Dawn Brenner’s baby and a babysitter. Herbert said he made it back to his apartment and that the police did not come until the morning.

On cross-examination, Herbert testified that none of the attackers showed any weapons to him at Jubilation or as they were driving down Halsted Street, but Herbert said that when they were on Halsted, the attackers tried to run him off the road. Herbert also explained that as he was driving, he did not try to find a phone because he was worried about his brother Keith.

Dawn Brenner was the next witness called to testify for the defendants. Dawn said that on March 15, 1986, she lived with the defendant, Keith McGrath. That evening, Dawn went to Jubilation with Keith, her sister, Kelly Jordan, and Herbert McGrath. Dawn said that when they were at Jubilation, as she was coming out of the women’s washroom, she saw a man talking to Herbert and Keith. She heard the man ask Keith if he had hit a girl in the Contempo bar a couple of weeks earlier, and she also heard Keith tell the man that he did not do it. Dawn said that she told the man that she and the girl had been fighting and that Keith had pulled them apart, but when he did so, both girls hit their heads on the cement.

Dawn then testified that she left Jubilation several hours later with Keith and her sister. She said that Herbert McGrath left at the same time with Robin Haskins and Debbie Ehringer. Herbert and the girls planned to follow them to Keith and Dawn’s apartment in East Hazel Crest. As they were driving down Halsted Street, Dawn said, some cars pulled out and tried to separate Herbert’s and Keith’s cars. The cars continued to follow them as they drove to the apartment complex. When they parked their cars, Keith told Kelly to go upstairs and call the police and told Dawn to stay where she was. Dawn said she then walked toward a large man, later identified as Nardi, and told him to leave because they did not want any trouble and because she had a baby there. Dawn claimed that Nardi replied, “Get the hell out of my way, you fucking bitch,” and pushed her into Keith. Dawn testified that she then walked over to Debbie Friel and Debbie’s brother, George, because she knew them. However, Dawn then got into a fight with one of Debbie’s friends. Dawn said that while she was fighting with that girl, George Friel kicked her at least twice, but stopped when Keith came over. Dawn stated that soon after that, they heard police sirens and ran toward her apartment.

Keith McGrath also testified in his own defense and said that on March 15, 1986, he lived with Dawn Brenner and her sister, Kelly Jordan, in East Hazel Crest. On that evening, the three of them went to Jubilation, along with Keith’s brother, Herbert. Keith testified that when they arrived at Jubilation, Dawn and Kelly went into the washroom and he and Herbert waited outside. As they were waiting, John Ciarrocchi walked up and asked him if he had been involved in the incident at Contempo. Keith explained to John what had happened and, Keith said, John walked away.

Later, Keith testified, as they were leaving the bar, someone Keith later determined was Piunti called him a “homo.” Keith then heard a commotion behind him and saw a number of people on top of Herbert, although he never saw anyone hit Herbert. At the same time, Keith said, Nardi screamed at him that he was going to kill him. The police then made everyone leave the parking lot, but had the Mc-Graths wait to leave until everyone else had gone. Keith left with Dawn and Kelly and decided to meet Herbert at his apartment. Keith said that as he was driving home down Halsted Street, three cars, in-eluding a black Trans Am, began following him and tried to separate him "from his brother. Keith testified that when he pulled into his apartment complex parking lot, he told Kelly to run upstairs and call the police, and told Dawn to stay where she was. Keith said that he then ran upstairs to let Kelly into the apartment, since he had the keys, and immediately ran back downstairs.

Next, Keith said, he got his nightstick and threw it to his brother, Herbert, who also had arrived by this time. Keith said Herbert told him to get his gun from the gym bag in his car. Keith retrieved the gun and switched weapons with Herbert. At this point, Nardi pushed Dawn, and then came after Keith, but stopped before he reached him and took off after Herbert. Keith testified that Joe Ciarrocchi then came running at him, so he took a swing at Joe. Keith said that he may have hit Joe a few times, but said that Joe also hit him a few times. At the same time, Keith said, he heard Herbert telling the attackers to get out of there, and heard Herbert fire some warning shots.

After his confrontation with Joe Ciarrocchi, Keith testified that he ran toward the black Trans Am because his brother was over there. Keith said that Nardi took a swing at him so he hit back, but missed Nardi and instead hit the passenger window on the Trans Am, shattering it. Keith then heard his brother yell that Dawn was being kicked. Keith said he saw Friel kicking Dawn, so he kicked Friel and pushed him away. Keith pulled Dawn off the ground and ran toward Herbert because he saw three people hanging onto Herbert’s back. Keith said, however, that by the time he reached Herbert, the fighting had stopped. On cross-examination, Keith denied hitting Friel with the nightstick in order to stop him from kicking Dawn.

The defendants also called Robin Haskins to testify. Robin testified that she was dating Herbert McGrath and that they had their first date on March 15, 1986. Robin also said that before March 15, 1986, she had dated John Ciarrocchi. Robin stated that she went to Jubilation on March 15 with her friend, Debbie Ehringer, because she had told Herbert she would meet him there. Robin left Jubilation around 3 a.m. with Herbert and Debbie. As they were walking out, Robin saw Piunti hit Herbert in the face. Robin said that a fight broke out, but she eventually left with Herbert and Debbie in Debbie’s car. According to Robin, as they were driving down Halsted Street toward Keith and Dawn’s apartment, John Ciarrrocchi pulled out onto Halsted and tried to hit Debbie’s car. Robin also saw Piunti’s car ahead of them, following Keith. Robin stated that when they turned off Halsted Street, they saw that Piunti’s Trans Am was blocking the street and also saw Nardi standing outside of the car waving his hands, so they drove off the road to avoid them. Robin said that when they reached the apartment complex, Herbert told her to call the police.

Next, Robin said she knocked on an apartment door and told the occupant to call the police and then ran back outside, where she heard a shot. Robin testified that Joe Ciarrocchi then walked up to her and said, “Look what your buddy did to me,” and she noticed that Joe’s head was bleeding. Joe then walked away from her and ran toward Herbert. Robin saw Joe fall and try to get back up and, she said, as he tried to get back up, Herbert kicked him. Robin said that Joe fell down again and there was no further fighting after that. On cross-examination, Robin said that she only heard one shot during the altercation.

Defendants’ last witness was Nick Matela, who testified that on March 15, 1986, he was employed as a bouncer at Jubilation. Around 3 a.m.’ on that date, Matela said, a fight broke out as the defendants, whom he had known for approximately 12 years, were leaving. Matela said that he saw someone throw a punch, but could not say for certain whether Herbert was hit. Matela did say, however, that he was certain that Herbert never hit anyone. Matela testified that he then saw someone holding Herbert and he heard Herbert say, “Get him off of me, get him off of me.” The bouncers then broke up the fight. Matela also remembered hearing a “big, heavy-set kid” call Herbert a “mother fucker” and say “I will kill you, Herbie, I will kill you.” Following Matela’s testimony, the defense rested.

As noted, the trial court found Herbert guilty of armed violence and aggravated battery and found Keith McGrath guilty of aggravated battery, stating that the case against the defendants turned on the credibility of the witnesses. The court held that although there were discrepancies in the testimony of the witnesses for both sides, the State’s witnesses were more credible. The court concluded that the attackers were the original aggressors here, but that the defendants became the aggressors when they reached Wooded Path Drive, noting that Keith had time to run upstairs and unlock the apartment door for Kelly, Herbert had time to get a nightstick and tell Keith to get his gun, and both defendants had time to move out of the immediate vicinity of the apartment complex and into the parking lot. At that point, the court said, there was no threat of great bodily harm or imminent death to the defendants, so the use of force by the defendants was not justified.

THE OPINION

On appeal, the defendants contend that the State failed to prove them guilty beyond a reasonable doubt. The defendants assert that they were justified in using force to protect themselves under the circumstances here. Defendants note that they were pursued to their apartment complex at 3 a.m. by six angry men who had threatened them earlier. Defendants argue that they reasonably believed that they were in danger of great bodily harm under these conditions since it was dark and they could not determine whether their attackers were armed. Also, defendants say, they had to make split-second judgments here because they were outnumbered by their attackers and everything happened very quickly.

The State, on the other hand, argues that the trial court properly held that the defendants did not act in self-defense and, in fact, became the aggressors. In addition, the State contends that the amount of force used by the defendants was excessive because the conduct of the six alleged attackers was insufficient to create a reasonable belief on the part of the defendants that they were in danger of death or great bodily harm. Accordingly, the State maintains that the defendants were proven guilty beyond a reasonable doubt.

A person is justified in using force against another “when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against each other’s imminent use of unlawful force,” and, in addition, a person is justified in using force “intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.) In order to establish a claim of self-defense, then, a defendant must show that unlawful force was threatened against him and he believed the danger of harm was imminent, that he was not the aggressor, that the force used was necessary to avert the danger threatened against him, and that the amount of force used was necessary. (People v. Alcazar (1988), 173 Ill. App. 3d 344, 349, 527 N.E.2d 325, 328; People v. Lenzi (1976), 41 Ill. App. 3d 825, 834, 355 N.E.2d 153, 162.) Once a defendant has established these elements, however, the burden then shifts to the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. (Alcazar, 173 Ill. App. 3d at 349, 527 N.E.2d at 328; People v. Tirrell (1980), 87 Ill. App. 3d 511, 517, 408 N.E.2d 1202, 1206.) The State must show that the defendant’s belief that he was in danger of imminent harm was unreasonable. (Alcazar, 173 Ill. App. 3d at 349, 527 N.E.2d at 328.) The test is what the defendant, as a reasonable man, believed under the circumstances, not what a fact finder thinks a reasonable man would believe; thus, if the defendant’s belief is reasonable, he may use deadly force to protect himself even if he is mistaken as to the danger. People v. White (1980), 87 Ill. App. 3d 321, 323, 409 N.E.2d 73, 74; Lenzi, 41 Ill. App. 3d at 835, 355 N.E.2d at 162.

Here, the defendants contend that they did provide evidence in support of each of the elements necessary to a finding of self-defense. Defendants note that they were not the aggressors, since their attackers admitted that they followed the defendants from the Jubilation to their apartment complex in order to retaliate against them for the incident at the Jubilation. Defendants also contend that the actions of the six men caused them to reasonably believe that unlawful force was threatened against them and that the danger of harm was imminent, since the attackers outnumbered the defendants six against two and there was some testimony, including the testimony of one of the State’s witnesses, that the attackers tried to separate the defendants’ cars as they were driving toward Keith’s apartment. Further, as noted earlier, these events happened in a matter of minutes, at 3 a.m., in a dark parking lot.

The defendants also allege that the force they used was necessary to avert the danger threatened against them and the amount of force used was necessary, since, according to the defendants’ testimony, their attackers continued to come after them even after Herbert had fired two warning shots. At this point, the defendants did not know whether their attackers were armed. Further, the defendants argue that the force used was not excessive since there was no testimony that Herbert actually aimed the gun at anyone. Finally, the defendants argue that merely because they left the immediate area of the apartment complex, armed themselves, and stood their ground as their attackers advanced toward them, does not turn them into the aggressors because they did not have a duty to retreat.

In response, the State concedes that the six men were the original aggressors. Nonetheless, the State argues that once the parties reached the apartment complex, the defendants became the aggressors. In support of this argument, the State claims: Herbert was unprovoked when he hit the windshield of John Ciarrocchi’s car; Piunti testified that he saw Herbert point the gun at him; Friel testified that Keith kept hitting Joe Ciarrocchi with the nightstick until he saw blood coming from Joe’s forehead; the six men were unarmed; there was no credible testimony that the men attacked the defendants; and Herbert’s behavior was inconsistent with the behavior of one who feared for his life because Herbert never tried to call a police officer or locate an officer on his way to Keith’s apartment.

A reviewing court will not substitute its judgment for that of the trial court and will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt concerning the defendant’s guilt. (People v. Jimerson (1989), 127 Ill. 2d 12, 43, 535 N.E.2d 889, 903; People v. Molstad (1984), 101 Ill. 2d 128, 133, 461 N.E.2d 398, 401.) When considering a challenge to the sufficiency of the evidence of a defendant’s guilt, a reviewing court will not retry the defendant, because determinations concerning the credibility of witnesses, the weight to be given their testimony and the reasonable inferences to be drawn from the evidence presented are responsibilities of the trial court where a jury is waived. (Jimerson, 127 Ill. 2d at 43, 535 N.E.2d at 903; Molstad, 101 Ill. 2d at 133, 461 N.E.2d at 401; People v. Stokes (1989), 185 Ill. App. 3d 643, 658-59, 541 N.E.2d 1129, 1139.) The relevant inquiry on review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jimerson, 127 Ill. 2d at 43-44, 535 N.E.2d at 903.

We find that the evidence presented here was insufficient to support the trial court’s conclusion that the defendants were the aggressors and were not acting in self-defense. Viewing the evidence in a light most favorable to the prosecution, we cannot say that the defendants were proven guilty beyond a reasonable doubt. The record is clear that the six attackers had made previous threats and had pursued the defendants to Keith’s place of residence, even though they had an opportunity to file a complaint against the defendants with the police while they were at the Jubilation. When the men arrived at Keith’s apartment, they advanced toward the defendants, in the dark, in a threatening manner, with an avowed present determination and intent to inflict physical harm. The aggressive behavior of the six attackers was deterred only when the defendants defended themselves in a manner deemed necessary at the time, while the defendants were fearful and under stress.

We further hold that the evidence was insufficient to support the trial court’s conclusion that the defendants became the aggressors merely because Keith was able to run upstairs and unlock his apartment door. The defendants’ actions were consistent with their belief that unlawful force was threatened against them and that the danger of harm" was imminent. Both defendants testified that when they arrived at the apartment complex, they told their female companions to call the police. Also,, when Keith was upstairs, Herbert was left alone to fight six men, so it was reasonable for Keith to return to the parking lot to help Herbert defend himself. Moreover, the defendants testified that Dawn Brenner’s baby was inside Keith’s apartment, so it was reasonable for Keith to want to keep the attackers away from the apartment.

We also believe that the evidence supports our conclusion that the defendants’ use of force was necessary to avert the danger and was not excessive. The defendants were outnumbered by their attackers, one of whom was six feet three inches tall and weighed 280 pounds. The events took place in a dark parking lot in the early morning hours, and the defendants did not know whether their attackers had weapons. We find Herbert’s action in yelling at the attackers to leave him alone because he had a gun to be consistent with his testimony that he feared for his life and that he was using the gun only to scare the attackers away. It was only when the presence of the gun did not deter the attackers that Herbert fired two shots into the air. When even the warning shots did not deter the attack, Herbert fired two shots into the ground. The evidence supports Herbert’s testimony that he did not aim his gun at the attackers but instead fired two shots into the ground, since both of the men who were hit were hit in the lower leg and received wounds that required only cleaning and bandaging. Under the circumstances here, considering the fact that the events took place in a matter of minutes as six men advanced on two men, we cannot say that the defendants acted unreasonably. When a person has reasonable grounds to believe that he is in danger of death or great bodily harm, he is not required to use infallible judgment since it would be unreasonable to require one to make such an exacting decision in the space of a few seconds while fearful and under stress. White, 87 Ill. App. 3d at 323, 409 N.E.2d at 75.

In support of its argument that the trial court properly- found the defendants guilty, the State relies upon this court’s decision in People v. Alcazar (1988), 173 Ill. App. 3d 334, 527 N.E.2d 355. We find that case to be distinguishable from the present case. In Alcazar, this court rejected the defendant’s claim that he had killed a man in self-defense. The court there held that the defendant became the aggressor because: (1) the defendant backed away from the victim only after taunting the victim and brandishing a shotgun; (2) the defendant went into his apartment to get his shotgun and then returned to continue the verbal altercation; (3) when inside his apartment, the defendant stood ready to fire at the victim if the victim entered the building; and (4) the defendant was not outnumbered. In contrast, the defendants here did not provoke the attackers and were outnumbered. Further, Keith did not go inside his apartment to arm himself and, when the defendants did arm themselves, they did not attack the six men until the men started coming after them. Finally, the defendants here did not use deadly force, but only used that force necessary under the circumstances.

The State also cites this court’s decision in People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290, for the principle that whether a defendant acted in self-defense is a question of fact for the trial court and, where the evidence is contradictory, the reviewing court should not substitute its judgment for that of the trial court. However, we also find Zolidis to be distinguishable from the present case. In Zolidis, this court rejected the defendant’s claim that he had acted in self-defense because the evidence showed that he had stabbed the victim 17 times. Clearly, stabbing a victim 17 times is excessive and cannot logically be considered an act of self-defense. Conversely, in this case, the defendants used only that force necessary to repel the attackers and to protect themselves, and stopped fighting when the men stopped their attack on them.

Upon careful review of the record, then, keeping in mind that the trial court’s factual determinations are entitled to great weight, we nonetheless conclude that the record does not support the trial court’s finding that the defendants are guilty of armed violence and aggravated battery. When a careful examination of all the evidence presented to the trial court leaves the reviewing court with a substantial and well-grounded doubt of the defendants’ guilt, the defendants’ convictions cannot stand. (Lenzi, 41 Ill. App. 3d at 837, 355 N.E.2d at 163.) Moreover, since we hold that the defendants’ convictions must be reversed, we need not reach the defendants’ second issue on appeal, that the trial court erred in limiting the impeachment of John Ciarrocchi.

Accordingly, for all of the foregoing reasons, we reverse Herbert McGrath’s convictions for armed violence and aggravated battery and vacate his sentences. We also reverse Keith McGrath’s conviction for aggravated battery and vacate his sentence.

Judgments reversed.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE O’CONNOR

text:
    JOHN J. JINDRA et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee (Roger Forte et al., Defendants).
    First District (1st Division)
    No. 1—88—3301
    Opinion filed December 29,1989.
    Richard L. Lucas & Associates, Ltd., of Addison (Richard L. Lucas and William E. Hale, of counsel), for appellants.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order dismissing counts I and III of plaintiffs’ first amended complaint for failure to satisfy the conditions for suit against a municipality pursuant to section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). We affirm.

Plaintiffs, John J. Jindra, Daniel J. Rodriguez and Mohammed Patel, filed the instant suit on September 28, 1986, alleging, inter alia, the violation of their civil rights by certain police officers.

The City of Chicago moved to dismiss counts I and III, the only counts at issue here, based on plaintiffs’ failure to serve timely written notices of injury upon the clerk of the City of Chicago (the clerk) as to plaintiffs Jindra and Rodriguez and that no notice was ever served on behalf of plaintiff Patel, as required by section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par 8 — 102).

Plaintiffs contend that the required notices of injury for each plaintiff were personally served on both the clerk and the corporation counsel for the City of Chicago (corporation counsel) on November 6, 1985, by Daniel K. Tracy, and affidavits of personal service were signed by Tracy and notarized. The city contends that the notices of injury for Jindra and Rodriguez were served on November 12, 1985, four days after the statutory period had elapsed.

At an evidentiary hearing on June 9, 1987, the city produced the original notices served by plaintiffs Jindra and Rodriguez at the city clerk’s office. They were time stamped November 12, 1985, 11:20 a.m. The city also produced Mary Frances Meyer, a licensed investigator for the city, whose job is to accept and stamp personal injury notices at the office of the city clerk and to maintain the records of those notices. Ms. Meyer testified that no notice had ever been received from plaintiff Patel and that under the procedures followed by her office, notices are stamped immediately upon filing. Ms. Meyer acknowledged that she was not present when Tracy delivered the notices of injury.

Daniel G. Tracy testified for plaintiffs, stating that notices had been filed with both the city clerk and the corporation counsel for all three plaintiffs on November 6, 1985, which was within the statutory time period, and that the notices delivered to the corporation counsel’s office were stamped November 6, 1985. Tracy further stated that on November 6, 1985, he signed affidavits attesting to service of the documents; that the documents and affidavits were served on the city clerk and the corporation counsel and that he did not ask for any stamped copies back.

The trial court ruled that plaintiffs had failed to prove that they had filed notices with the clerk in timely fashion and granted the city’s motion to dismiss counts I and III with prejudice. Plaintiffs now bring this appeal.

The sole issue on appeal is whether the trial court’s finding that plaintiffs’ notices to the city clerk were not served by November 8, 1985, one year after plaintiffs’ alleged injury, was contrary to the manifest weight of the evidence.

Section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8—

102) provides in pertinent part:

“Within 1 year from the date that the injury or cause of action *** was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees *** must serve *** a written notice on the Secretary or Clerk *** for the entity against whom or against whose employee the action is contemplated ***.”

Plaintiffs here contend that the trial court erred in failing to accord due weight to the testimony and evidence which they produced. Plaintiffs cite People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85-86, 430 N.E.2d 1126, in which the court held that uncontradicted and unimpeached testimony in a record may not be disregarded by a trier of fact and a claimant need not negate all possible inferences which might be drawn from the evidence. Plaintiffs further rely on Effler v. Metzger (1975), 29 Ill. App. 3d 55, 59, 329 N.E.2d 327, for the rule that where witnesses are equally credible, and one has testified positively to a fact and the other’s evidence is negative, the positive testimony is entitled to greater weight.

On appeal, all reasonable presumptions must be made in favor of the trial court’s action. (Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 86, 496 N.E.2d 1024.) As a reviewing court, we cannot disregard a trial court’s findings of fact unless they are against the manifest weight of the evidence (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624), and the mere existence of enough evidence to support a contrary judgment does not mean that a trial court’s decision is against the manifest weight of the evidence. Rather, the evidence on behalf of the party bringing the appeal “must be so strong and convincing as to completely overcome the evidence and presumptions, if any, existing in favor of the opposite party.” People ex rel. Lauth v. Wilmington Coal Co. (1949), 402 Ill. 161,167, 83 N.E.2d 741.

This court also must rely upon the trial court’s determinations regarding the credibility of testimony. (Blue v. St. Clair Country Club (1955), 7 Ill. 2d 359, 363, 131 N.E.2d 31.) We may not overturn a judgment solely because this court would have reached a different conclusion. Schulenberg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.

The plaintiffs’ evidence consisted of testimony and affidavits of Mr. Tracy, who claims to have delivered the injury notices for all three plaintiffs to both the city clerk and the corporation counsel’s office on November 6, 1985. While the record contains notices filed with the Corporation counsel on behalf of Jindra and Rodriguez, and date stamped November 6, 1985, it does not contain any injury notice filed on behalf of Patel either at the clerk’s office or with the corporation counsel. However, even if all three notices had been timely filed with the corporation counsel, this court recently held that notice to the corporation counsel does not constitute notice to the city clerk. Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 935, 514 N.E.2d 3.

The plaintiff in Shortt was injured on August 7, 1979. On December 19, 1979, he sent notice of his intent to sue the City of Chicago to the corporation counsel’s office. Plaintiff filed suit on June 12, 1981, and sometime thereafter, defendants moved to dismiss on the grounds that plaintiff had failed to send notice of intent to sue to the city clerk. In affirming the dismissal, the appellate court noted that section 8 — 102 is to be strictly construed with respect to the essential elements of notice, one of which is notice to the city clerk. (Shortt, 160 Ill. App. 3d at 935.) The court also rejected plaintiff’s argument that the city had actual notice, citing authority that “actual notice is insufficient to satisfy the statutory notice requirement.” 160 Ill. App. 3d at 935. See, e.g., Repaskey v. Chicago Transit Authority (1975), 60 Ill. 2d 185, 188, 326 N.E.2d 771; Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 361, 282 N.E.2d 437.

The city introduced the original injury notices for plaintiffs Jindra and Rodriguez, which were time stamped November 12, 1985, 11:20 a.m. Defendants also introduced the testimony of Ms. Meyer, who testified that no injury notice had ever been served for plaintiff Patel and that she personally accepts and stamps all injury notices brought into the clerk’s office except when she is at lunch. She also stated that the invariable procedure of her office is to stamp the copies, retain one, and return any additional copies to the individual filing the papers.

The question of credibility was resolved by the trial court in favor of the defendant city following a lengthy hearing, and there is no basis, in light of the city’s evidence, for finding that the trial court’s determination was contrary to the manifest weight of the evidence. People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E. 2d 1126, cited by plaintiffs, is not authority for plaintiffs’ theory that Mr. Tracy’s testimony should prevail over that of Ms. Meyer’s because he testified that something had occurred and she testified that it did not. The relevant holding in Brown is that a fact finder “may not make an affirmative finding that the exact opposite of a [witness’] testimony is true if there is no evidence to support such a finding.” (Brown, 88 Ill. 2d at 86.) As noted above, the city produced sufficient testimony, including the documents themselves, to support the finding of the trial court.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    THOMAS POULOS et al., Plaintiffs-Appellants, v. RICHARD A. LITWIN et al., Defendants (Gallo Equipment Company et al., Citation Defendants-Appellees).
    First District (1st Division)
    No. 1—88—3744
    Opinion filed December 29,1989.

      Alexander G. Poulakidas and James J. Karras, both of Chicago, for appellants.
    Law Offices of M.C. Purmal, of Chicago (Marthe C. Purmal, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from the dismissal of a citation to discover assets against defendant, Gallo Equipment Company. At issue is whether, under section 2 — 1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402), judgment creditors in a supplemental citation proceeding are entitled to a restraining order against a defendant in a personal injury suit brought by the judgment debtor in order to satisfy the creditor’s claim against the proceeds if the judgment debtor’s action is successful. We affirm.

Plaintiffs, James Poulos and Thomas Poulos, initially brought an action in forcible entry and detainer against defendant Richard A. Litwin. Judgment in the amount of $7,549.80 was entered in favor of plaintiffs. Following an appeal by defendant, this court held that defendant was entitled to a jury trial on the issue of damages. The matter was tried on May 31, 1988, and the jury found in favor of plaintiffs in the amount of $31,359.80.

Subsequent to the entry of that judgment, plaintiffs became aware that on January 27, 1988, defendant and his wife, Jacqueline Litwin, had filed a personal injury action in the circuit court of Cook County against Gallo Equipment Company (Gallo), TCM America, Inc. (TCM), and Grand Rock Company, case No. 88 — L—1722. That case has not been resolved and has not gone to trial.

On August 6, 1988, plaintiffs issued citations to discover assets upon, inter alia, Margolis and Velasco, attorneys for Litwin, Marthe C. Purmal, attorney for TCM, and James Desveaux, attorney for Gallo. Marthe Purmal and Thomas Mangan, on behalf of Desveaux, filed motions to quash the citation proceedings, and on September 21, 1988, the proceedings against Purmal and Desveaux were dismissed with prejudice. Litwin, the judgment debtor, apparently never has been served with a citation to discover assets.

On October 5, 1988, pursuant to section 2 — 1402 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402), plaintiffs filed citations to discover assets against respondents Michael Gallo, president of Gallo, and TCM. Respondents were commanded to appear on October 28, 1988, to be examined under oath regarding property or income of or indebtedness due Litwin. Respondents were also directed to produce copies of any and all pleadings filed in case No. 88 — L—1722. Following a hearing in which respondents argued that in order for the action to proceed, the indebtedness must be liquidated and due without contingency, the trial court dismissed the citations to discover assets with prejudice. Plaintiffs filed a motion to reconsider, which was denied, and plaintiffs appealed. Citation defendant TCM filed a motion to be dismissed from the appeal. That motion was granted, and the appeal remains pending only as to citation defendant Gallo. Just prior to oral argument, plaintiffs moved to stay this appeal on the basis that defendant Litwin had filed proceedings under chapter 7 of the Bankruptcy Code (11 U.S.C. §701 et seq. (1988)). That motion was denied.

The parties are in agreement that this is a case of first impression in Illinois in that plaintiffs are attempting to restrain the transfer of proceeds (if any) of an unliquidated, contingent personal injury claim.

The citation defendant initially raises a challenge to the court’s jurisdiction. First, relying on Moran v. Lala (1989), 179 Ill. App. 3d 771, 781, 534 N.E.2d 1319, Galo argues that by failing to include the jurisdictional statement required by Supreme Court Rule 341(eX4Xii) (134 Ill. 2d R. 341(eX4Xii)), plaintiffs have waived argument on the issues raised. While failing to comply with supreme court rules can result in the waiver of the issues raised, we decline to do so here, despite plaintiffs’ omission of the jurisdictional statement, as there is no question but that the October 25, 1988, order was final and appealable.

Defendant also, however, asks us to address the ruling in Elg v. Whittington (1988), 119 Ill. 2d 344, 518 N.E.2d 1232, which requires that an appeal from a judgment that is final as to one or more but fewer than all of the parties or claims must be filed within 30 days of an order containing a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that the order is final and appealable. Defendant claims that the order quashing the citation was a final judgment as to Gallo and TCM but not as to all of the parties, as the citation to discover assets as against Litwin had been continued from September 23, 1988, to October 28, 1988, and he had never been served. Defendant contends that as a result of the Rule 304(a) finding, the order quashing the citations became immediately appealable and the circuit court was divested of jurisdiction to entertain plaintiffs’ motion to reconsider.

Despite the Rule 304(a) language, stating that there was “no just reason for delaying enforcement or appeal” (107 Ill. 2d R. 304(a)), this action was brought as a supplementary action pursuant .to section 2— 1402(a) of the Illinois Code of Civil Procedure. It was not piecemeal litigation as contemplated by Rule 304(a); thus, the Rule 304(a) language in the trial court’s dismissal order was surplusage and the appeal period was not governed by the restrictions of Elg v. Whittington.

Pursuant to section 2 — 1402(a), “It is not a prerequisite to the commencement of a supplementary proceeding that a certified copy of the judgment has been returned wholly or partly unsatisfied.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402(a).) Supreme Court Rule 277(g) (107 Ill. 2d R. 277(g)), provides: “Supplementary proceedings against the debtor and third parties may be conducted concurrently or consecutively. The termination of one proceeding does not affect other proceedings not concluded.” Thus, for purposes of appeal, the supplementary proceeding filed against TCM was a separate action, and plaintiffs’ appeal following the denial of their motion to reconsider was timely.

The sole question remaining is whether the citations to discover assets were improperly quashed.

Section 2 — 1402 of the Illinois Code of Civil Procedure, which governs supplementary proceedings, provides:

“A judgment creditor *** is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402.

Although plaintiffs do not argue that the citation defendant currently possesses either assets or income of the judgment debtor, they contend that, consistent with In re Marriage of Rockford, (1980), 91 Ill. App. 3d 769, 775, 414 N.E.2d 1096, a lien on intangible property, such as the contingent personal injury claim here, may be created by instituting proceedings to discover assets. We disagree. While the court in Rockford noted that a lien on intangible property may be created by instituting proceedings to discover assets, it does not necessarily follow therefrom that a restraining order may be directed to a defendant in a judgment debtor’s personal injury suit.

The judgment creditor in Rockford was attempting to reach the judgment debtor’s seat on the Chicago Mercantile Exchange to satisfy a debt. The court defined the seat on the Exchange as intangible personal property, but property that could be bought or sold subject to certain limitations. The court, in dicta, suggested that the judgment creditor could have initiated citation proceedings against the judgment debtor to deliver “money, choses in action, property or effects in his possession or control, *** to which his title or right of possession is not substantially disputed.” (Rockford, 91 Ill. App. 3d at 777.) In short, the court stated that the judgment creditor could have created a lien against the membership on the Exchange by instituting proceedings to discover the assets of the judgment debtor. The court did not suggest that the judgment creditor could have instituted proceedings against the Chicago Mercantile Exchange.

Plaintiffs also rely on Kirchheimer Brothers Co. v. Jewelry Mine, Ltd. (1981), 100 Ill. App. 3d 360, 426 N.E.2d 1110, to support their contention that a temporary restraining order against the citation defendants is permissible. In Kirckkeimer, a judgment creditor served a citation to discover assets on an insurance company involved in a pending lawsuit over insurance coverage provided to a judgment debtor. The insurance company moved to quash the citation but the motion was denied. On appeal, the court affirmed, holding that an order temporarily restraining the insurance company from paying any money to the judgment debtor merely prevented the company from transferring funds which might become due to the debtor in the future. The court specifically relied upon section 73(4)(a) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73(4)(a)), the predecessor to section 2 — 1402. The distinguishing factor between Kirchheimer and the instant case is that, in Kirchheimer, the judgment creditor was seeking to satisfy its judgment from the debtor’s own insurance policy, which is an asset subject to citation proceedings. (See Second New Haven Bank v. Kobrite, Inc. (1980), 86 Ill. App. 3d 832, 835, 408 N.E.2d 369.) The citation defendant here, in contrast, is not the insurer of the defendant.

Plaintiffs also rely on Vendo Co. v. Stoner (1982), 108 Ill. App. 3d 51, 438 N.E.2d 933, for the proposition that citation proceedings may be effected to prohibit Gallo from making or allowing any transfer of property belonging to the judgment debtor or to which he may be entitled or which may thereafter be acquired or become due to him. In Vendo, a citation to discover assets was served on a bank holding certain United States Treasury notes which were an asset of the judgment debtor. The notes had been used as collateral for the loan from the bank, and there was a question as to whether the bank was entitled to a setoff. Thus, Vendo involved a readily defined asset of the judgment debtor that could be sold to pay a debt; it did not involve property to which he might become entitled in the future, and therefore, is not dispositive of the matter before us here.

In Stevenson v. Samkow (1986), 142 Ill. App. 3d 293, 491 N.E.2d 1318, the court addressed the use of citation proceedings under section 2 — 1401 in the context of a cause of action for bad faith. The court dismissed the citation proceedings on the grounds that the bad-faith cause of action was not an asset, income or property in the possession or control of the defendants. We believe the reasoning of Stevenson applies here, as Litwin’s cause of action for personal injuries is not within the control of Gallo.

The language of section 2 — 1402 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402) provides that citation proceedings are to be directed to “assets or income” of the debtor. Plaintiffs do not address that requirement, which is set out in the first paragraph of the statute. Instead, they rely on section 2 — 1402(d)(1), which states that a party may be restrained from transferring any “moneys *** which are due or to become due to the judgment debtor” as a basis to support a restraining order against Gallo. Subparagraph (d)(1), however, cannot be read without reference to the language in the statute referring to assets, property or income being held by a party other than the debtor. Read as a whole, the statute is intended to reach debts owed to the judgment debtor which would provide “moneys *** which are *** to become due.” The Historical and Practice Notes to section 2 — 1402 state:

“Section 2 — 1402(d)(1) should be construed just as the New York statute. It applies only to property of the judgment debtor in the hands of the third party or property of the judgment debtor, if the citation is directed to him, which is subject to the supplementary proceeding.” (Ill. Ann. Stat., ch. 110, par. 2— 1402, Historical and Practice Notes, at 867 (Smith-Hurd 1983).)

In light of this language, we conclude that the statute was not intended to encompass a claim by a judgment creditor against a defendant in a personal injury suit brought by the judgment debtor.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.