text:
    CLEMON COWENS, Petitioner-Appellant, v. ILLINOIS INSURANCE GUARANTY FUND, Respondent-Appellee.
    First District (1st Division)
    No. 1—92—0777
    Opinion filed June 28, 1993.

      Sachs, Earnest & Associates, Ltd., of Chicago (Gregory R. Sun, of counsel), for appellant.
    Daniel G. Súber & Associates, of Chicago (Daniel G. Súber, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Clemon Cowens appeals from a February 5, 1992, final order of the circuit court of Cook County which granted summary judgment to defendant Illinois Insurance Guaranty Fund. Plaintiff’s action sought a declaration requiring defendant, as successor to the obligations of the now insolvent Reliable Insurance Company (Reliable), to arbitrate plaintiff’s uninsured motorist claim. In an oral ruling, now embodied in the final order on appeal, the circuit court determined that plaintiff’s arbitration demand was untimely as a matter of law because it was initiated two years following the accident in which plaintiff was injured. Plaintiff’s main argument on appeal is that his arbitration demand was timely. We agree.

The record citations supporting plaintiff’s “statement of facts” demonstrate that the asserted “facts” are nothing more than references to allegations within plaintiff’s initial complaint. This is somewhat misleading. First, the operative complaint is now plaintiff’s “5th amended complaint for declaratory judgment and other relief,” filed April 11, 1990. Second, defendant by answer has largely denied the allegations of this latter complaint. Finally, plaintiff’s October 1990 motion for summary judgment merely incorporated the allegations of this complaint. Thus, contrary to plaintiff’s characterization, most of the facts he asserts in his brief are not “facts,” but allegations.

Interestingly, defendant, which omitted a statement of facts in its response brief, includes a statement of facts in a supplemental brief. However, the facts there stated are little more than a duplication of plaintiff’s initial statement of facts. Indeed, the record citations within this supplemental brief are largely the same as those contained in plaintiff’s initial brief. Apparently, the underlying facts are no longer in dispute. This lack of factual dispute bears on the disposition we ultimately make.

In any event, certain undisputed facts do appear from the common law record. In an August 1990 motion for summary judgment, defendant admits that it assumed Reliable’s obligations upon Reliable’s being ordered into liquidation. Defendant further admits that Reliable issued a policy of automobile insurance to plaintiff which included, inter alia, uninsured motorist coverage. The language of this policy included the following provision:

“PART IV — FAMILY PROTECTION COVERAGE
Coverage J — Family Protection (Damages for Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury *** sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.”

An endorsement further provided:

“AMENDMENT OF ILLINOIS FAMILY AUTOMOBILE POLICY INSURING AGREEMENT AND CONDITIONS
* * *
PART IV — UNINSURED MOTORIST
* * *
It is further agreed no suit, action or arbitration proceedings for the recovery of any claim under Family Protection/Uninsured Motorists Coverage shall be sustainable in any court of law or equity unless the insured shall have fully complied with all of the terms of this policy, nor unless commenced within two (2) years after the occurrence of the loss.” (Emphasis added.)

Defendant in its motion for summary judgment also admitted that plaintiff was involved in an accident on August 16, 1983, with an al-' leged uninsured motorist. Finally, defendant acknowledged that Reliable received on May 5, 1986, plaintiff’s written demand for arbitration. In its summary judgment motion, defendant argued that the date of accident equalled the “date of loss” for purposes of the policy’s two-year limitation provision; thus, plaintiff’s arbitration derpand was too late.

Plaintiff also filed a motion for summary judgment. The motion requested that the court grant the relief requested in his fifth amended complaint, which sought a declaration that defendant was required to arbitrate plaintiff’s claim. Plaintiff incorporated the allegations of his fifth amended complaint to support his motion.

At the summary judgment stage of the proceedings, the case was before the Honorable Judge Scotillo. Following briefing and argument on the parties’ respective summary judgment motions, Judge Scotillo on December 27, 1990, entered an order which granted defendant’s motion for summary judgment, denied plaintiff’s motion for summary judgment and dismissed plaintiff’s fifth amended complaint with prejudice.

Plaintiff thereafter filed a motion for reconsideration. On May 28, 1991, Judge Scotillo granted plaintiff’s motion to reconsider, vacated his prior order granting defendant summary judgment and ordered the matter to be reassigned.

On June 28, 1991, defendant filed a motion to reconsider the May 28, 1991, order or, in the alternative, for leave to file an interlocutory appeal. On July 23, 1991, the matter was transferred to Judge Hourihane who, for reasons which are not altogether clear, restyled defendant’s motion into a renewed motion for summary judgment. Anyway, on February 5, 1992, Judge Hourihane granted defendant summary judgment. The court orally indicated that the two-year contractual limitation provision within the policy’s endorsement was not ambiguous and obligated plaintiff to initiate arbitration proceedings within two years from the date of accident. Plaintiff appeals this ruling.

For the sake of being complete, and given that plaintiff is appealing from an award of summary judgment (which requires this court to construe the evidence in the light most favorable to plaintiff), the record can be construed to include the following matters as well.

Plaintiff’s August 16, 1983, automobile accident involved Otha G. Kimbrough. On October 3, 1983, plaintiff sent Kimbrough an attorney’s lien and a letter requesting insurance information. Plaintiff alleges in his complaint that Kimbrough did not respond.

On October 18, 1983, plaintiff sent to the Illinois Department of Transportation, Financial Responsibility Section, a “Motorist Report of Illinois Motor Vehicle Accident” form. Plaintiff in his cover letter requested information regarding Kimbrough’s insurance status at the time of the accident. Plaintiff alleges that he received no response from the Department of Transportation.

Plaintiff also sent Reliable an attorney’s lien on October 22, 1983. Plaintiff’s cover letter indicated that, following an investigation, Kimbrough “appeared” to be an uninsured motorist. Reliable responded November 16, 1983, that it was in receipt of plaintiff’s lien. This response requested “all supporting documentation” and asserted that, following investigation, plaintiff would be contacted to discuss settlement. Plaintiff alleges in his complaint that he thereafter sent Reliable his special damages and that, in a telephone conversation with a Reliable claims adjuster, he learned Reliable would not discuss the matter until it received proof of Kimbrough’s uninsured status.

On July 10, 1985, plaintiff filed an action against Kimbrough in the circuit court of Cook County. This action was filed within two years of the accident.

On April 30, 1986, Kimbrough provided plaintiff with an affidavit stating that he had no automobile liability insurance at the time of the accident. This affidavit was incorporated by reference into plaintiff’s fifth amended complaint, which, as noted, plaintiff incorporated into his motion for summary judgment.

On May 5, 1986, plaintiff demanded arbitration in writing. Reliable responded shortly thereafter that plaintiff’s demand for arbitration was untimely. On October 27, 1986, plaintiff instituted the instant action.

“The law is a profession of words.” Mellinkoff, The Language of the Law vii (1963), cited in Edward D. Re, Brief Writing and Oral Argument, 2 (5th ed. 1983).

The controlling issue on appeal turns on the interpretation to be given to the phrase “nor -unless commenced within two (2) years after the occurrence of the loss.” The circuit court interpreted the term “loss” to mean “accident.” We find this construction to be erroneous as a matter of law.

The rules of contract construction apply to insurance policies, which courts interpret as a matter of law. (E.g., Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 453, 552 N.E.2d 406.) One of the fundamental rules of contract interpretation is that the court should seek to interpret provisions in accordance with the intent of the parties. (Heneghan, 195 Ill. App. 3d at 453.) Also, in interpreting the provisions of an insurance contract, the entire document should be examined, considering the language of the policy as well as the subject matter and purpose of the contract. Shelton v. Country Mutual Insurance Co. (1987), 161 Ill. App. 3d 652, 655-56, 515 N.E.2d 235.

Here, it is clear that the parties did not intend the terms “accident” and “loss,” neither of which is defined in the policy, to be synonymous. Reliable’s policy simultaneously employs the words “loss,” “accident” and “occurrence.” For example, the notice provision of the policy states: “In the event of an accident, occurrence or loss, written notice *** shall be given *** as soon as practicable.” Another provision within the policy provides that - “[t]his policy applies only to accidents, occurrences and loss during the policy period while the automobile is within the Unites States.”

Applying fundamental canons of contract construction to the parties’ contract, it is apparent that the parties did not intend “loss” to mean “accident” and “accident” to mean “loss.” In short, “accident” means “accident” and “loss” means “loss.” The policy in this regard is unambiguous. Had the parties intended “loss” to mean “accident” in the phrase in question, they merely would have used the term “accident.” See Shelton, 161 Ill. App. 3d at 655 (policy provided that “arbitration will be barred unless commenced within two years after the date of the accident”).

The foregoing analysis only begs the following question: what does “loss” mean? Clearly, like the term “accident,” “loss” refers to an event. This is all the more clear when one considers that, in the limitation provision in question, the policy requires that arbitration be commenced “within two (2) years after the occurrence of the loss.” It is also worth pointing out that it is a limitation provision which this court is being asked to interpret. Some event must trigger the running of the limitations clock. Here, it is “the occurrence of the loss.”

While, as noted above, “loss” cannot be synonymous with “accident,” a reasonable construction of the policy is that the two terms have a cause and effect relationship. An “accident” produces a “loss,” but the opposite is not true: a “loss” does not produce an “accident.” “Accident” is the cause, while “loss” is the effect. The cause and effect relationship of the two cannot be ignored. Further, a “loss” can be fixed in duration; however, it need not be. This is a critical observation within the context of the limitations clause at issue because the limitation clock does not begin to run until “after the occurrence of the loss.” (Emphasis added.)

Cases which have interpreted the limitation clause in question generally agree that “loss” can indeed extend in time beyond the happening of the underlying “accident.” (Glenn v. Prestige Casualty Co. (1993), 246 Ill. App. 3d 909; Whiting v. Prestige Casualty Co. (1992), 238 Ill. App. 3d 376, 606 N.E.2d 397; McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 598 N.E.2d 366; Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 557 N.E.2d 1281; Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 552 N.E.2d 406.) Frequently, for example, determining whether the party causing the insured’s injury is uninsured requires litigation. (E.g., Comet Casualty Co. v. Jackson (1984), 125 Ill. App. 3d 921, 467 N.E.2d 269.) This litigation may extend beyond two years of the accident. If defendant’s interpretation of the term “loss” were to be applied in such a case, its own insured would be precluded from receiving uninsured motorist benefits coverage even before the insured established that he was in fact injured by such a motorist. Obviously, this is an absurd result, which the parties could not have intended.

The foregoing analysis is sufficient to reverse the circuit court, which granted defendant summary judgment on the premise that “loss” meant “accident.” However, judicial economy requires that we consider another disposition.

As noted, defendant’s supplemental brief recites as fact, inter alia, the existence of the Kimbrough affidavit. Defendant apparently does not contest the authenticity of this affidavit, and the record reveals no reason to challenge its authenticity. It was executed sometime in April 1986, and plaintiff demanded arbitration in writing on May 5, 1986. Plaintiff’s demand, therefore, was timely as a matter of law.

There being no genuine issue of material fact, and pursuant to Supreme Court Rule 366(a)(5), we reverse and remand the case to the circuit court with directions to enter summary judgment for plaintiff declaring his entitlement to arbitration of his uninsured motorist claim. See McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 40, 598 N.E.2d 366 (granting similar relief).

In passing, we are aware of Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 404 N.E.2d 473, a First District, First Division case (Campbell and O’Connor, JJ., concurring). Plaintiff there appealed from the dismissal of his September 15, 1978, petition to compel arbitration. The date of accident was March 27, 1976, and plaintiff’s written demand for arbitration occurred on May 8, 1978. The basis of the dismissal was the policy language that arbitration must be commenced “within two years after the occurrence of the loss.”

The appellate court affirmed the dismissal. Language of the court’s opinion arguably could be read as contradicting the language of the instant opinion. For example, we expressly found “no ambiguity in the above-quoted policy provision.” (Buchalo, 83 Ill. App. 3d at 1045.) This court opinion had previously quoted certain policy language, including the same two-year limitation provision as in this case. Later in the opinion, we refer to the May 8, 1978, letter from the insured to the insurer demanding arbitration. We note that this letter was sent “after expiration of the policy limit of time for the demand [of arbitration].” Buchalo, 83 Ill. App. 3d at 1046.

Buchalo is distinguishable. First, the opinion does not directly construe the term “loss.” Apparently, the parties did not contest the meaning of the term. Second, the insured there was injured in a hit- and-run accident. Here, a question did exist as to whether Kimbrough was insured and, thus, whether uninsured motorist coverage existed in the first place. Finally, our conclusion in this case does not rest upon a determination that the term “loss” is ambiguous. Rather, the analysis here rejects the argument that “loss” and “accident” are synonymous and determines that a “loss” can be reasonably construed to be ongoing for purposes of the limitation provision in the instant policy. For these reasons, Buchalo does not foreclose our holding herein.

The above disposition obviates the need to discuss plaintiff’s other arguments on appeal.

For the foregoing reasons, we reverse the February 5, 1992, order of the circuit court which granted defendant summary judgment. We direct the circuit court on remand to enter summary judgment for plaintiff declaring his entitlement to arbitration of his uninsured motorist claim.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    PAULA FLOREK, Plaintiff-Appellant, v. PATRICK KENNEDY, Defendant-Appellee.
    First District (2nd Division)
    No. 1—92—1424
    Opinion filed June 22, 1993.

      Sorkin & Nusbaum, of Chicago (Carl Nusbaum, of counsel), and Winkler & Gorey, Ltd., of North Riverside (Charles R. Winkler, of counsel), for appellant.
    Clifford- P. Mallon, of Chicago (Matthew N. Chaconas and Robert T. Guilfoyle, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Paula Florek brought this negligence action after her automobile was struck from behind by defendant Patrick Kennedy when she was stopped at a stop light in August 1987. The circuit court granted her motion in limine to bar mention of injuries from prior accidents unless connected by medical testimony, but it denied her motion to amend her complaint to include a count for punitive damages. At trial, plaintiff presented evidence of slightly over $15,000 in lost wages and medical expenses as well as past and future pain and suffering, but the jury awarded her only $15,000. The circuit court denied her motion for a new trial. Plaintiff appeals, claiming that the damage award was palpably erroneous; that the award’s inadequacy also was the result of a prejudicial remark the court made in the jury’s presence and from defense counsel’s repeated violations of the order in limine-, and that the court erred in denying her motion to amend the complaint. We affirm.

Eighteen months after the accident, in February 1989, plaintiff filed a negligence complaint, asking for not more than $15,000 in damages. The circuit court later granted her motion to raise the ad damnum to compensate for her continuing intermittent pain and discomfort. In her answers to interrogatories, plaintiff stated that she would seek $45,000.

The case was set for trial a number of times but then was continued; one of the dates was June 17, 1991. On that day, plaintiff presented a motion for leave to file an amended complaint adding a count for punitive damages; the court again continued the trial and set a briefing schedule. The motion stated that “there exists a reasonable likelihood that facts will be proved at Trial to support an award of punitive damages [because] a jury can infer from Defendant’s conduct that he acted with malice.” In her own supporting affidavit, plaintiff stated that after the accident, she saw defendant “trying to go around [her] car,” implying that he was attempting to leave the scene of the accident. In another affidavit, James Floyd, plaintiff’s boyfriend, stated that when he arrived shortly after the accident, defendant was lying handcuffed on the back seat of a police car and had to try three times before he could sit upright. At this, the police officer commented, “There he is, so drunk he can’t sit up.” Standing within three feet of defendant, Floyd smelled a strong odor of alcohol on defendant’s breath. In addition, defendant’s eyes were only half-open, and his speech was slurred when he offered his billfold to Floyd and said, “Take what you want.” After argument, the court denied the motion as well as plaintiff’s oral motion for inclusion of language to make the order appealable under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Other trial dates were set, the first being October 7, 1991. Trial finally began on January 27,1992.

Defendant had conceded liability, so the trial was only on the questions of the extent of plaintiff’s injury from the accident and the amount of damages. Prior to voir dire, plaintiff filed a motion in limine asking, among other things, “[t]hat the Defendant’s] attorney be barred from cross examination of the Plaintiff’s doctor on prior injuries of the Plaintiff that have not been established or connected by the Defendant to the Plaintiff’s present injuries.” There is no written order in the record granting or denying this motion, but during the hearing on the motion, the following colloquy occurred:

“THE COURT: [Defense counsel can show] that [plaintiff has] had other accidents and that may account for the extent of injury.
[Plaintiff’s Counsel]: Oh, yes, if he shows through competent testimony that she had another accident, similar injury that could have crept over here, I don’t have any problem with that.
THE COURT: I will allow him to show similar accidents that pertain to the extent of the injury prior, but not to the fact that there is a propensity to have accidents. You’ve already admitted liability, it would be like—
[Defense Counsel]: No, I have no problem.
THE COURT: But I will allow you to show any similar accidents bearing on the extent of damages, period.
[Defense Counsel]: Right.
THE COURT: Of course.
* * *
[Plaintiff’s Counsel]: *** Again, you know, with [defense counsel’s] cross examination of any doctor that I might put on, again, suggesting that there is another injury, unless he’s going to tie it up, you know, once you open the door on these things, the jury is going to say, why there’s got to be something there.
You know, the cases say if you’re going to inquire into that line, then you better bring in evidence to connect a prior accident with a claimed injury in this particular case. And to allow him to fish around and to suggest to the jury that there may be something there and not tie it up, Judge, there could be reversible error.
THE COURT: I agree. It’s got to be germane, it’s got to be an accident in point [sic]. It can’t just be any accident, you know.
[Defense Counsel]: If I do, Your Honor, I would — of course, I will, away from the jury, establish for the Court a tie-in.
THE COURT: All right. If you do that, fine.”

In his opening statement, when defense counsel began to say, “We had a lady coming into this accident who had a prior accident, which the evidence will show — ,” plaintiff’s counsel objected. In the sidebar that followed, plaintiff’s counsel warned of reversible error though he conceded “if [defense counsel] leaves it at this stage, we probably won’t have a problem.” After argument, the court instructed defense counsel:

“Well, my ruling is I am not going to restrict you from making that statement at this time. But at the trial, if you want to make an offer of proof that it’s related, in order to comply with the motion in limine, then I will let you do it. But at this point, I don’t think you can argue to the jury what you are going to do, because you are going to leave something in their mind about another cause of the accident. [Plaintiff’s counsel] is absolutely right. If it’s not proximate, if it’s not related, it’s irrelevant. He’s absolutely right. He’s given you the case. I don’t want to have a reversal of error [sic]. What else are you going to say about prior accidents?
[Defense Counsel]: That was it.
THE COURT: Well, I am going to exclude that statement.”

The court did not instruct the jury to disregard the statement, however.

First to testify after defendant told of his speed at impact was James Floyd. He saw plaintiff every day after her release from the hospital through the end of 1987. Before the accident, she had been a “lively, energetic person”; afterward, she became “moody, lethargic,” “a different person,” in a lot of pain and depressed. The following year, she engaged in little physical activity.

Plaintiff testified that she had worked as a waitress all her life and, in particular, since March 1981 at the job she had at the time of the accident. Her weekly gross income had been $195 to $200. The first thing she remembered after the accident was a headache and a “tingling and numb sensation” in her arms and legs. When she arrived at the hospital, she first felt the headache and pain in the upper back and neck area; when she was allowed to sit up, she noticed that her right ribs hurt, especially when she took a deep breath. At the hospital, she was given painkillers and muscle relaxants. She left after four hours or so and returned to the accident scene to retrieve something from her car, after which she went to the police station to make a statement at the request of the police.

Plaintiff tried to return to work in January 1988, but after a two-hour shift she was “extremely tired and a little stiff and sore.” During a seven-hour shift two days later, she experienced “some difficulty” in bending, stretching, and heavy lifting. Afterward she was “extremely tired and sore and stiff.” She never went back. She did not seek employment until March 1988 because she did not feel well enough for any work. Plaintiff described her condition at that time as slightly improved, though with a constant headache, extremely tight shoulder muscles in the neck area, a sore lower back, and restricted bending. She calculated that during the year she did not work, she lost in excess of $10,000 in income. She began to work as a clerk at the end of July 1988; she is now a supervisor. She has not missed any days from her job as a result of her problems.

The day after the accident, in accordance with the hospital’s instructions, she saw her own physician, Dr. Kisielius. He examined her and prescribed a stronger painkiller and a different muscle relaxant. Her foot was sore, and she was “extremely stiff,” especially her lower back; she could not bend in either direction. The medication helped but “[t]he headache has always been there.” She saw Dr. Kisielius again at the end of the week, at which time he started treatments “similar to an ultrasound” and a series of diathermy treatments to relax the deep muscles in her neck, shoulders, and upper and lower back. She continued with these treatments at least once a week for a year.

Beginning in September 1987, plaintiff simultaneously sought treatment from Dr. Peluso, a chiropractor; he performed some spine manipulation, traction, heat therapy, and ultrasound. She went twice a week for the first six months, and once a week thereafter. Some days, she saw Dr. Peluso in the morning and Dr. Kisielius in the afternoon, which she had “okayed *** with both doctors.” In late 1987, Dr. Kisielius referred her to a neurosurgeon, whom she saw three times. He prescribed a painkiller that seemed to help a little. Plaintiff stopped seeing Dr. Kisielius in August 1988 and Dr. Peluso the next month.

In June 1988, plaintiff’s employer referred her to Dr. Mark Cavalenes, an orthopedist, for an examination; he did not prescribe any treatment at that time. She did not follow his instructions for physical therapy because she could not afford it. He later wrote her and prescribed a “work hardening” program, but he did not explain what it entailed. In 1989, she also saw a naprapath she has known for 20 years, Dr. Minor; she saw him four or five times. He performed spine and muscle manipulation, ultrasound, and “some electronic tense [sic] machine where they send electrical charge through you.” The various treatments did not take the pain away entirely or for long, but they did ease the muscles.

In October 1989, plaintiff returned to Dr. Cavalenes after seeing a television report on fibromyalgia and thinking “my God, that sounds like what I got.” She told him she still had the headaches and the pain, and he checked how far she could bend, rotate, and so on. Two weeks later, in November, he prescribed a slightly milder drug than he had before. Between these two visits, plaintiff was involved in an automobile accident in which someone hit the rear door of her car on the driver’s side. She described the impact as “just a glancing kind of blow. No — Little damage.” She stated that it had aggravated the condition, making the neck and lower back muscles sore and tighter for a couple of days. After that, though, she returned to her former condition.

In 1990, plaintiff testified, she still had the headaches and a stiff, tight upper back and shoulders. She was tired all the time and did not sleep soundly. She saw the naprapath a few times and saw another one for the month of May who was closer to her home. Dr. Thomas Gleason, hired by defendant, examined her in June 1990. On the day of her visit, the subway train on which she was riding shook, causing severe pain in her right lower back. By the time she arrived at Dr. Gleason’s office, she was extremely sore and had difficulty walking. She also saw another chiropractor, Dr. Maretta, 12 times' in June 1990. In August 1991, plaintiff began to see yet another chiropractor, Dr. Harshfield, who was also an acupuncturist; the acupuncture helped only one day. She saw Dr. Harshfield 12 to 15 times for chiropractic treatment to her neck, shoulders, and lower back, though the bill contains references only to her neck. In January 1991, plaintiff also was examined by a rheumatologist, Dr. Robert Katz, to whom her attorney had referred her.

Plaintiff described her state of health at the time of the trial as follows. She wakes up extremely tired and has a constant headache. Her back is a little stiffen in the morning, so it hurts to walk. The motion of curling her hair in the morning hurts her shoulders. It hurts to get in and out of the car and to roll up the car window. She has to get up and walk around every hour or so at work because her shoulders bother her if she has to sit in one position for too long. She cannot do any heavy lifting. When she arrives home after work, she is totally exhausted and just wants to lie down. She cannot vacuum, mop, clean the bathtub, or lift full bags of groceries. When nervous or' under stress, she feels “like somebody has got [her] shoulders and [her] neck and are squeezing them, are pushing on them and are squeezing on them. *** The same with the lower back.”

Dr. Martin Massari, a chiropractic orthopedist, testified from the records of Dr. Peluso, who had died prior to trial. Those records indicated that the prognosis for plaintiff had been “guarded,” as indicated by the entry that plaintiff had been “released from [his] care having reached maximum recovery” from his treatments despite “a lot of discomfort in her right shoulder.” Dr. Massari interpreted the term “maximum recovery” to mean “maximum medical improvement,” not total recovery, saying “It means that the doctor has taken the patient along to the furthest point that he can get that patient well. He can’t get that patient any better.” It did not mean total recovery. Dr. Peluso had performed spinal manipulation, hot moist packs, and ultrasound; there was no indication in his records of diathermy treatments. The records did not indicate that plaintiff was receiving care simultaneously from another source, except for an unrelated procedure in July 1988, but Dr. Massari observed that it would not be unusual or inappropriate to obtain manipulation treatment from one doctor and physiotherapy from another on the same day. He agreed, however, that two identical treatments on the same day would not be appropriate.

In Dr. Massari’s opinion, plaintiff’s treatment by Dr. Peluso in 69 visits over one year was both reasonable and necessary, given the information in the records that she had pain and needed treatment for her symptoms, and the charges for the visits to Dr. Peluso ($2,326) were “very reasonable.” His opinion would be no different if he knew that plaintiff had received 49 diathermy treatments during the same time period from another doctor. Dr. Massari believed that plaintiff should not perform waitress work or anything similar, which would place undue strain on her shoulders, and that plaintiff’s injury could result in residual symptoms. On cross-examination, when defense counsel asked if he had reviewed any records from the time prior to the accident or knew if plaintiff was a patient beforehand, the court sustained plaintiff’s objection in accordance with the order in limine.

Dr. Kisielius, plaintiff’s initial treating physician, then testified by deposition. He first saw her the day after the accident, when she complained of injuries to her neck, lower back and chest, right lower chest, and head. She also had tenderness and pain in her forehead; a very painful, tender neck (mostly on the left side) with rigidity and very limited movement; and pain limited movement in the lower back, which was very tender, especially on the left and in the lumbar area. His provisional diagnosis was severe strain of the neck and lower back; the results of X rays and a brain scan did not change that diagnosis. In addition to diathermy, he had prescribed painkillers, muscle relaxants, and rest. At subsequent visits, when plaintiff continued to complain of pain in her neck going up to the right rear of her head as well as the earlier pain and leg pain, he ordered the same treatment.

In September 1988, Dr. Kisielius’ prognosis for plaintiff had been “guarded” based on the length of time since the accident. In his opinion, she could not work as a waitress and was “disabled” during the 13 months he treated her due to her lack of flexibility and her inability to move freely without pain. He testified that the accident would be sufficient to cause plaintiff’s injuries; that her symptoms were consistent with her injury; and that her injury would be sufficient to cause future pain and suffering. His bill for $1,225 was fair and reasonable for the treatment he provided. On cross-examination, he conceded that he could observe no pathology from the accident and that her complaints of pain were not the result of anything he could point to on an X ray or similar objective test, but he noted that one cannot see soft tissue injury on an X ray and that rigidity is an objective finding. He had “no idea” whether plaintiff was seeing any other doctors while he was treating her.

Dr. Robert Katz, a rheumatologist who examined plaintiff in January 1991 at her attorney’s request, testified that his diagnosis was fibromyalgia, based on information about the accident, plaintiff’s subjective symptoms, and his own examination. He described the treatment as a combination of medication, physical exercise, and sometimes other types of pain control. The accident could have caused the condition because post-traumatic fibromyalgia is well recognized, according to Dr. Katz. He later said, “We don’t understand the cause and we don’t have a cure for [fibromyalgia],” and he admitted that he was depending on plaintiff’s history as she told the origin of her complaints and had no independent way of knowing by objective tests or examination whether the onset of the condition started with the accident. Dr. Katz declined to use the word “permanent,” but he estimated that plaintiff’s pain would last “for a considerable period of time.” During cross-examination, when defense counsel asked Dr. Katz if he would not have recommended the chiropractor’s treatment, plaintiff’s counsel objected but did not ask for a sidebar. The court sustained the objection, commenting in the presence of the jury, “The doctor and the chiropractor have different fields of medicine. One cannot really judge the other. Maybe a doctor could judge a chiropractor, but I don’t see a chiropractor telling me about medicine, please.”

Dr. Mark Cavalenes, an orthopedic surgeon who treated plaintiff, was the first witness for defendant. He first saw her when she was referred to him for evaluation in June 1988. She had complained of headaches and of tenderness in muscles of both shoulders and neck. In his examination, he found her forward bending movement was “definitely restricted,” her “[Rotating or laterally bending to the right and left was *** about 80 percent of normal,” and extension was within the normal range. In X rays, he saw spurring in the lumbar area, indicative of chronic instability in the back and changes over time that could have been caused either by the accident or a congenital condition, though it was probably neither one. His diagnosis had been “low back strain with a pain syndrome” and bursitis in her shoulder as well as “a mild pinching of the nerve.” He thought that the accident could have caused the injury to her shoulder but because he had not seen her earlier, he could not be sure to a reasonable degree of medical certainty. The same was true of the lower back strain, cervical strain, and the pain syndrome. When Dr. Cavalenes saw plaintiff in June 1988, it would have been “very difficult” physically for her to work as a waitress. To improve her shoulder function and neck so she could return to work, he recommended a “work hardening” program, that is, exercise connected to the job starting with very light, limited activity and then increasing it. He had hoped that she would return to work in two or three months, but he had no idea if she had followed through with the program.

When Dr. Cavalenes saw plaintiff the following October, she had more restriction in motion in her back. Had it been a soft tissue injury, it should have healed, so he thought that she had fibromyalgia. This condition could have been caused by the accident, he testified, though he could not say so within a reasonable degree of medical certainty. He recommended some flexibility exercises and a short course of steroid treatment. Plaintiff did not tell him that she had been involved in a later accident, and he had no record or recollection of any treatment by others between her June 1988 visit and the second in October 1989. At an examination two weeks later, just after yet another accident, she had told him that the steroid treatment had not helped, and his examination revealed even more restricted movement of plaintiff’s neck and shoulder and more discomfort. He prescribed an anti-depressant. Three weeks later, plaintiff’s condition was mostly unchanged except for some improvement in flex and extension and some worsening in the shoulder motion. Dr. Cavalenes recommended range of motion therapy, ultrasound, and heat for her shoulder. Based on this last examination, he believed that plaintiff would continue to have pain and discomfort in the future, though he could not say for how long.

Last to testify was Dr. Thomas Gleason, an orthopedic surgeon who had examined plaintiff in October 1990 at defense counsel’s request. From his review of plaintiff’s medical records and the history she gave him, Dr. Gleason’s diagnosis in 1987 would have been that plaintiff had suffered a cervical spine injury as a result of the accident “sufficient enough to cause her pain which was probably secondary to muscle strain.” The muscle strain was of the type to heal within six .to eight weeks regardless of treatment, so his recommendation would have been to reduce discomfort, order possible limitation of activities, and prescribe pain medication. In his opinion, Dr. Cavalenes’ June 1988 findings concerning plaintiff’s shoulder were unrelated to the accident, though he agreed that given that plaintiff could not raise her right arm more than 90° at that time without shoulder discomfort and that her rotator cuff was tender, she could not have worked as a waitress and that the shoulder problems could have been traumatically caused. Furthermore, he testified, by September 1988, any condition that plaintiff had suffered as a result of the accident must have been resolved. He based his opinion on his knowledge of the way strains heal and on the absence of objective findings in plaintiff’s medical records, including an unrelated hospitalization record from July 1988 on which a negative notation had been placed at the item “musculoskeletal system” and the admission form noted that plaintiff’s neck had been supple.

Dr. Gleason then described his examination of plaintiff. She had normal motion with one exception, normal muscle strength, and normal sensation. Tests for nerve irritation in her arms, for a pinched nerve, and for irritation of shoulder soft tissue were negative. She had not indicated pain with deep palpation of the upper part or back of the shoulder or at the clavicle. There was pain, however, at the lightest touch to the front shoulder, which he could not explain. From plaintiff’s complaints, he had expected some wasting of the muscles in the right arm, but his measurements indicated none. Plaintiff could sit upright with her legs straight out (negative Britton test), but in a similar test she could not lie flat and bring her legs up more than 45° without low back pain, an inconsistency that he could not explain. Tests on plaintiff’s kneecaps, Achilles tendons, and underside of the feet all suggested normal nerve function.

After this examination, Dr. Gleason’s diagnosis was a right cervical radicular syndrome based on subjective complaints but no substantiating objective findings, diminished extension of the cervical spine, soreness in the front of the right shoulder based on subjective complaints, and lumbar syndrome with suggestion of right sacroileitis, again unexplained by objective findings. None of this was connected to the accident, in his opinion, but he did not “know where those complaints are coming from.” He did not mention, nor was he asked about, fibromyalgia.

In his closing argument, plaintiff’s counsel said, after noting the approximately $10,000 in lost income and $5,207.26 in medical expenses, “So, we” have some $15,000 in expenses which I believe is probably the easiest part of the job that you’re going to undertake here. You can say ‘let’s give her $15,000.’ But what do we do about these things, the pain which is reasonably going to continue in the future?” He suggested $50,000 for disability and an additional like sum for past and present pain and suffering. Defense counsel suggested $2,500 to $3,500 for medical bills, pain and suffering, and lost wages of $200 each week for two or three weeks.

The verdict form submitted by plaintiff and signed by the jury did not list the different categories of damages, such as past and future medical bills, past and future pain and suffering, or lost wages. The jury found for plaintiff and assessed damages of $15,000. The circuit court entered judgment on the verdict plus costs.

In her motion for a new trial, plaintiff raised among other things the four issues on appeal. At the argument, when the court suggested that plaintiff had had the right to ask for a mistrial when it made the challenged remark while ruling on the objection during Dr. Katz’s testimony, plaintiff’s counsel replied:

“Your Honor, there would be no need for a mistrial had the jury made an award that was fair to this lady. We were almost finished with the case. *** The mistrial would have only started the process over again. Cured the effect, certainly, but *** there was no way for me to take and alter or in any way change the direction that you’ve [sic] given the jury at that time.”

The court explained in response that it had been commenting only that one cannot compare the opinion of one type of doctor to another. The court also disagreed with plaintiff’s contention that the motion to amend her complaint had not been filed on the eve of trial, noting that the only reason the trial had not commenced in June was that the court had granted plaintiff a continuance to brief the motion. After argument, the court denied the motion. It found that plaintiff should have moved for a mistrial after its comment and that in any event the statement was not prejudicial; that the damages to be awarded were a question of fact for the jury; and that plaintiff had not presented sufficient facts in the affidavit to sustain a count of punitive damages.

I

Plaintiff challenges the $15,000 verdict as palpably erroneous because it was less than her medical bills and lost income and thus could not have included any damages for past and future pain and suffering. If the award reflected the jury’s finding that not all the lost time or expense was necessary or related to the accident, she argues further, this conclusion was against the manifest weight of the evidence. She insists that a new trial is warranted when, as here, the damages are manifestly inadequate, or it is clear that the proved elements of damages have been ignored, or if the amount bears no reasonable relationship to the loss suffered by the plaintiff.

The usual rule when reviewing a jury verdict for damages is that

“[t]he amount of the verdict is generally within the discretion of the jury, and a new trial will not be granted on the ground that damages in a personal injury action are too small. [Citation.] However, justice requires that a verdict be set aside and a new trial ordered where the amount of damages is palpably inadequate, or against the manifest weight of the evidence, or where the jury has clearly disregarded a proved element of damages [citation], or where it is apparent that the jury made a compromise between the guilt of defendant and the damages sustained by plaintiff [citation]. The standard to be applied in deciding a motion for a new trial is whether the jury’s verdict is against the manifest weight of the evidence, and the trial court’s determination of a motion for a new trial will not be disturbed absent a clear abuse of discretion.” (Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 954, 576 N.E.2d 1195, 1202, appeal denied (1991), 142 Ill. 2d 654, 584 N.E.2d 129.)

In Healy, the court reversed the order denying a motion for a new trial on the issue of damages because the jury award contained sums for medical bills for pain medication and therapy but nothing for pain and suffering. It held that the award was against the manifest weight of the evidence because the inconsistency reflected a disregard for a proved element of damages, for one could not have necessary bills for pain medication without perforce having proved pain. Cf. Buttita v. Stenberg (1993), 246 Ill. App. 3d 1012, 1023-24.

This case, however, presents a different question. Although neither party mentions it, in a personal injury case tried by a jury, the verdict must be itemized to reflect distribution of the award between monetary and nonmonetary loss, and economic losses must be further itemized as to pre- and post-verdict compensation. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1109.) A circuit court’s refusal to instruct the jury as to this form has led to reversal of a damages award on the ground that the refusal made it impossible to evaluate the award’s sufficiency. (Henderson v. Hudson (1984), 121 Ill. App. 3d 780, 460 N.E.2d 10.) Here, too, the award is impossible to evaluate because the jury used a general verdict form. This resulted not from the circuit court’s error, however, but as plaintiff’s counsel conceded at oral argument, he chose to tender the improper form. Because this statutory violation has made it impossible to review the award, we cannot grant the relief plaintiff requests.

Even if we were to review the adequacy of the verdict, moreover, the outcome would be no different. Although the amount of the award here is less than the total of plaintiff’s medical bills and lost wages, this does not necessarily reflect the jury’s miscalculation, its disregard for a proven element of damages, or a compromise. The evidence on the extent to which these damages could be attributed to the accident was conflicting. On this point, a credibility contest arose between plaintiff’s doctors and defendant’s expert, Dr. Gleason. The jury could have opted to believe Dr. Gleason, who opined that plaintiff’s injury from the accident was the type that resolves by itself within six to eight weeks arid that her current complaints were not the result of the accident. From this the jury could have inferred that the reasonable and necessary treatment should have been limited to the first few doctor visits, painkillers, and muscle relaxants, and the past pain and suffering attributable to the accident would have been minimal. In that event, almost all the medical bills and lost wages, as well as all future pain and suffering damages, would not be recoverable. Because the jury could have reached these conclusions, its award cannot be said to have been against the manifest weight of the evidence. Therefore, the circuit court correctly decided to deny plaintiff’s motion for a new trial on this point.

II

Plaintiff claims that the circuit court erred both in finding that its comment about doctors and chiropractors was not prejudicial and in holding that she had waived her challenge to the comment by not having moved contemporaneously for a mistrial. She notes that an appellate court may consider an error to which the affected party did not object when necessary to insure a fair trial and protect the judicial process from deterioration, citing Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383 (failure to object to improper statements during opposing counsel’s closing no bar to appellate court’s consideration if conduct precluded fair trial). Plaintiff characterizes the error as prejudicial in that it instructed the jury that the law holds chiropractors, the source of over half of her medical bills and much of her supporting evidence, to be less credible and knowledgeable than physicians. She finds analogous Lange v. Coca-Cola Bottling Co. of Chicago, Inc. (1969), 105 Ill. App. 2d 99, 245 N.E.2d 35, rev’d on other grounds (1969), 44 Ill. 2d 73, 254 N.E.2d 467, in which the appellate court ordered a new trial because the court commented “That is his opinion. I don’t believe that at all” in response to an explanation in the presence of the jury of what the expert witness would say, thereby indicating the weight it would give certain evidence on a material fact in issue. Plaintiff also claims that to have objected at the time would have required the circuit court to apologize or explain and thereby highlight the fact that the court did not regard her witnesses highly. A mistrial within a few hours of the close of the trial, insists plaintiff, would have accomplished nothing that a new trial now will not achieve.

It is axiomatic that a lack of contemporaneous objection to trial improprieties usually will be deemed waiver of the right to appeal them, although not moving for a mistrial will not necessarily extinguish the right to a new trial on that issue (Mazurek v. Crossley Construction Co. (1991), 220 Ill. App. 3d 416, 424-25, 581 N.E.2d 59, 64). At oral argument, plaintiff’s counsel candidly admitted to this court that he had elected not to object and to await the jury’s verdict even though he now asserts that the error so tainted the trial as to subject the judicial process to deterioration. In other words, plaintiff’s counsel made a conscious decision “to roll the dice,” as defense counsel aptly puts it, and now asks this court to place its imprimatur on such conduct by not applying the waiver rule. We refuse to do so. To hold otherwise would countenance, if not invite, deliberate use of this tactic in the future. It also would make a mockery of the waiver rule.

Furthermore, as we noted above, in the absence of an itemized verdict, it is impossible for this court to ascertain the effect of the comment on any particular aspect of the damages. Thus, in the absence of a show of prejudice, we believe that there is no reason to order a new trial on this point. Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 515, 581 N.E.2d 162, 166 (comments that do not deprive a party of a fair trial do not warrant order for new trial).

Ill

Plaintiff next singles out two violations of the order in limine barring cross-examination of plaintiff’s doctors about any prior accident and resultant injuries unless defense counsel could connect the two with expert medical testimony. These include defense counsel’s mention in his opening statement that plaintiff had had a prior accident and his cross-examination of Dr. Massari, during which he asked if, when forming his own opinions, Dr. Massari had considered Dr. Peluso’s preaccident records for plaintiff or knew if she had been Dr. Peluso’s patient prior to the accident. With these two acts, she continues, defense counsel informed the jury of the earlier accident and prior treatment for the resulting injury. She interprets the award of less than her lost earnings and medical bills as a reflection that the jury found that some or all of her treatments were made necessary by that earlier accident.

We note that,

“[i]n order for the violation of an in limine order to serve as the basis for a new trial, the order must be specific in its prohibitions, and violations must be clear. [Citation.] And, where a violation is found to exist, a new trial may follow only where the violation has prejudiced the [aggrieved party] or denied [it] a fair trial.” (Northern Trust Bank v. Carl (1990), 200 Ill. App. 3d 773, 778, 558 N.E.2d 451, 456, appeal denied (1990), 133 Ill. 2d 560, 561 N.E.2d 694.)

Here, no one suggests that the order was not specific. With regard to the clarity of the violations, the first remark was not made during cross-examination of plaintiff’s doctors, it was made only once in passing, the objection was prompt, and the court ruled that it would permit defense counsel to make the statement. Significantly, moreover, during the sidebar following the objection, plaintiff’s counsel himself conceded that “if [defense counsel] leaves it at this stage, we probably won’t have a problem” with reversible error. As for the questioning of Dr. Massari, the violation is even less certain, for the inquiry did not specifically refer to either the prior accident or its resultant injuries. In addition, the inferences plaintiff draws are not ineluctable. Rather than an attempt to inject information about the prior accident, the questioning could have been interpreted as an attempt to elicit evidence about the length of plaintiff’s relationship with Dr. Peluso to ascertain his familiarity with her. As a result, we hold that these two incidents did not violate the order in limine. Even if they did, as with the court’s alleged error in part II, the lack of an itemized verdict form makes it impossible to ascertain the prejudice from such error.

IV

Plaintiff insists that the evidence in her affidavit of defendant’s attempt to flee and in Floyd’s affidavit of defendant’s strong odor of alcohol, slurred speech, difficulty in rising to a sitting position, and appearance of intoxication established a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. Having been presented with this evidence, she reasons, the circuit court had no discretion to deny her motion to amend the complaint and thus should have granted her motion for a new trial on this issue. Plaintiff also contends that the hearsay finding was incorrect because defendant’s acquiescence in the police officer’s statement is an admission, and even if the police officer’s statement could not have been considered, Floyd’s affidavit contained other evidence supporting an award of punitive damages that would not be negated by didacting that statement.

The general rule is that the decision to permit an amendment to a complaint is discretionary because the right to amend pleadings is not absolute. (Trans World Airlines, Inc. v. Martin Automatic, Inc. (1991), 215 Ill. App. 3d 622, 627-28, 575 N.E.2d 592, 595 (interpreting Ill. Rev. Stat. 1991, ch. 110, par. 2 — 616).) Timeliness of such motions may be considered (Trans World Airlines, 215 Ill. App. 3d at 627, 575 N.E.2d at 595) as may be prejudice or surprise to the other party (Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 961, 576 N.E.2d 1195, 1207, appeal denied (1991), 142 Ill. 2d 654, 584 N.E.2d 129).

Plaintiff brought her motion on the day that trial was to commence. The only reason the trial did not go forward that day was that the court continued the matter in order to permit the parties to brief the motion. Moreover, it was information from plaintiff herself and her boyfriend, information readily available to plaintiff long before the date set for trial, that formed the factual basis for her motion. By waiting until the day of trial to raise these allegations, plaintiff thereby surprised defendant, who had never been put on notice that his intoxication would be placed at issue and who presumably had not prepared a defense to her allegations. Although the circuit court expressly stated during the hearing on the motion for a new trial that the untimeliness of the motion had not been the basis for its ruling, we review the court’s orders, not its reasoning, and we may affirm on any basis in the record. Thus, we affirm because this motion could have been denied on the grounds of both untimeliness and unfair surprise.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

McCORMICK, P.J., and SCARIANO, J., concur.

      This was described later as a syndrome characterized by diffuse pain, muscle tenderness, associated fatigue, sleeping difficulties, and frequent headaches.


author: JUSTICE CERDA

text:
    THOMAS DELANEY, Plaintiff, v. McDONALD’S CORPORATION et al., Defendants (McDonald’s Corporation, Third-Party Plaintiff-Appellant; Gerhardt F. Meyne Company, Third-Party Defendant; C E C O Corporation et al., Third-Party Defendants-Appellees).
    First District (3rd Division)
    No. 1—91—3027
    Opinion filed June 30, 1993.
    Bryan W. Luce, of Kiesler & Berman, of Chicago, for appellant.
    Danette J. Buckley, of Tressler, Soderstrom, Maloney & Priess, of Chicago, for appellees.
   JUSTICE CERDA

delivered the opinion of the court:

McDonald’s Corporation, defendant and third-party plaintiff, appeals from the granting of the motion for summary judgment of the CECO Corporation (CECO), third-party defendant. Third-party plaintiff argues on appeal that the trial court erred because the Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) dismissal of the complaint of plaintiff,

Thomas Delaney, against CECO did not bar the third-party complaint against CECO.

On January 17, 1989, plaintiff filed a complaint against McDonald’s, CECO, and four other defendants alleging that he was injured on January 16, 1987, while working on a construction site. He also alleged the negligence of defendants in connection with the condition of the premises.

McDonald’s was served on January 25, 1989. On December 7, 1990, McDonald’s moved for leave to file a third-party contribution complaint against Gerhardt F. Meyne Company, CEGO, and CECO Industries, Inc. The motion was granted. The third-party complaint was filed on December 10, 1990, and alleged that the third-party defendants were contractors engaged in construction at the site of third-party plaintiff’s office campus. It also alleged that plaintiff’s injuries, if any, were caused by the wrongful acts and/or omissions of the third-party defendants.

On February 15, 1991, CECO moved to dismiss plaintiff’s complaint with prejudice under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) on the basis that it had not been served until after the expiration of the statute of limitations. The motion was granted on May 20, 1991. CECO filed a motion for summary judgment, in which it argued that third-party plaintiff had no right of contribution against it because plaintiff’s complaint had been dismissed with prejudice. Summary judgment was granted in favor of CECO on the third-party complaint. The trial court further found that there was no just reason to delay enforcement or appeal of the order.

Third-party plaintiff argues on appeal that the dismissal of plaintiff’s complaint against CECO did not bar the third-party complaint for contribution because: (1) the dismissal was not due to any lack of diligence of third-party plaintiff; (2) if plaintiff had not sued CECO as a direct defendant, third-party plaintiff’s contribution rights would be intact; (3) it would be unfair to deprive third-party plaintiff’s contribution rights based on plaintiff’s delay; (4) the dismissal of plaintiff’s complaint was not an adjudication on the merits for the purpose of third-party plaintiff’s contribution claim; and (5) at the time of the injury, CECO had potential liability within the meaning of the Contribution Act (Ill. Rev. Stat. 1991, ch. 70, par. 302(a)).

Third-party defendant argues that summary judgment was proper because: (1) under Supreme Court Rule 273 (134 Ill. 2d R. 273), a Supreme Court Rule 103(b) dismissal with prejudice is an absolute bar to a subsequent action brought by plaintiff involving the same cause of action; (2) third-party plaintiff did not have a right of contribution because third-party defendant was not subject to liability in tort to plaintiff as a result of the dismissal; and (3) a contribution action was not allowed against a party who was not subject in tort to liability to plaintiff because the purpose of the Contribution Act is equitable distribution of liability among parties who are subject to liability in tort to plaintiff.

Supreme Court Rule 103(b) states in relevant part:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice.” (134 Ill. 2d R. 103(b).)

The Contribution Act states in relevant part:

“Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Ill. Rev. Stat. 1991, ch. 70, par. 302(a).

The following cases are discussed by the parties. Third-party plaintiff first cites Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 560 N.E.2d 412, as support for its argument that it would be unfair to bar the third-party complaint based on plaintiff’s failure to serve third-party defendant. The issue was whether an amended version of a tort immunity statute applied to bar a third-party contribution claim. The statute was amended after the date of plaintiff’s accident but before the filing of third-party plaintiff’s contribution action. Plaintiff filed her complaint against defendants, including third-party plaintiff, after the effective date of the amendment. The court stated that if plaintiff had sued third-party plaintiff a few days before the effective date of the amendment, then the preamended version would have applied to third-party plaintiff’s contribution action (and the contribution action would not - be barred under the preamended version). (Bonfield, 202 Ill. App. 3d at 644.) Therefore, it was unfair to bar third-party plaintiff’s actions solely because of the delay in plaintiff’s filing her complaint, which resulted in the application of the amended version of the statute. (Bonfield, 202 Ill. App. 3d at 644.) To make the date on which plaintiff chose to file a “potentially determinative factor as to a joint tortfeasor’s right to maintain a contribution action” was unjust. (Bonfield, 202 Ill. App. 3d at 644.) The preamended version was held to apply to the contribution action. (Bonfield, 202 Ill. App. 3d at 644.) The case did not involvé a Rule 103(b) dismissal.

In Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 540 N.E.2d 966, the complaint against the principal was dismissed under Rule 103(b) because the principal was not served. The court held that the dismissal was an adjudication on the merits and barred the action against the agent, who also was a defendant. (Williams, 184 Ill. App. 3d at 837.) The court relied on authority that a judgment finding the employer not liable was a judgment in legal effect that the employee was not liable. (Williams, 184 Ill. App. 3d at 836.) The case did not involve a contribution action.

In McCombs v. Dexter (1989), 186 Ill. App. 3d 484, 542 N.E.2d 1245, summary judgment was granted in favor of one defendant. Summary judgment was then granted in favor of that defendant on the other defendants’ counterclaim for contribution. The court held that the contribution action was barred when summary judgment was entered in favor of the first defendant because the potential for liability was thereby extinguished. McCombs, 186 Ill. App. 3d at 487.

Third-party plaintiff relies on the analysis in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, of when a party is subject to liability in tort so as to allow 'a contribution action. In Doyle, the court held that an employer’s immunity from suit by an injured employee provided by the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) did not bar a contribution action by a third party against the employer. (Doyle, 101 Ill. 2d at 4.) The court looked at the intent of the Contribution Act and reasoned that the potential for tort liability existed against the employer until the employer raised the defense provided by the Worker’s Compensation Act. (Doyle, 101 Ill. 2d at 9-11.) “Liability” as used in the Contribution Act was to be determined at the time of the injury out of which the right to contribution arose and not at the time that the action for contribution was brought. Doyle, 101 Ill. 2d at 11.

The language of the contribution statute is clear that in order to be able to assert a claim for contribution, there must be potential liability on the part of both the person seeking contribution and the person from whom contribution is sought. In this case both McDonald’s and CECO must be subject to liability in tort in order for McDonald’s to have a right of contribution.

We hold that, after the Rule 103(b) dismissal, the third-party defendant was no longer subject to liability in tort within the meaning of the Contribution Act. Although the dismissal did not address the merits of plaintiff’s complaint but was based on a procedural matter, the result was that the third-party defendant could not be liable in tort to the plaintiff. A Rule 103(b) dismissal with prejudice is an adjudication on the merits. Williams v. Bolsten (1989), 184 Ill. App. 3d 832, 837, 540 N.E.2d 966.

The judgment of the trial court is affirmed.

Affirmed.

TULLY, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE TULLY

text:
    HELEN KNAPP, Plaintiff-Appellant, v. A.W. GALINSKI, Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—2499
    Opinion filed June 30, 1993.
    Ambrose & Cushing, P.C., of Chicago (Thomas M. Cushing, of counsel), for appellant.
    Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago (David J. Pritchard, Jonathan A. Rothstein, and Laura C. Liu, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This medical malpractice case arises out of the allegedly negligent treatment of the plaintiff, Helen Knapp, by her podiatrist, the defendant, Dr. Adolph W. Galinski (Galinski). Knapp filed her original complaint against Galinski on April 30, 1985, and on April 11, 1991, during trial, she filed her third amended complaint, which alleged that Galinski was negligent in his surgical techniques and procedures, failed to properly advise Knapp before the surgery, and provided improper follow-up care after surgery. Over Knapp’s objection, the trial court instructed the jury that Knapp had the burden of proving that she “did not know nor should she have known in the exercise of reasonable diligence, that she had sustained an injury and that the injury was wrongfully caused by the defendant” more than two years before the date of filing the complaint. Additionally, the trial court instructed the jury in the issues instruction that Knapp claimed that she did not know nor reasonably should have known of her injury and its wrongful causation by Galinski more than two years before the date of the complaint. The trial court submitted to the jury a special interrogatory on this latter issue. The jury returned a general verdict in favor of Galinski as well as answering the special interrogatory in his favor. Knapp now appeals from the judgment to this court pursuant to Supreme Court Rule 301. 134 Ill. 2d R. 301.

On appeal, Knapp argues that the trial court erred in instructing the jury that she had the burden of proving that Galinski’s statute of limitations defense should not bar her medical malpractice action.

For the reasons which follow, we affirm.

The genesis of this case is when on March 23, 1981, Knapp saw Galinski for treatment of bunions and hammertoes on her toes and feet. Later, surgery was performed by Galinski on May 20, 1981. This course of treatment continued up through February 13, 1982. According to Knapp, in October of 1984, Dr. David Touchton examined her feet and it was at that time that she first discovered that Galinski had negligently evaluated her condition and negligently fused several of her toes. In fact, he operated on all of her toes rather than, as she thought, just the first two on each, foot, that is the big toe and the first toe. Thus, Knapp traces her subsequent foot problems to these actions of Galinski.

The statute of limitations for medical malpractice is found in section 13—212 of the Code of Civil Procedure (hereinafter section 13—212) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212), which provides, in pertinent part, as follows:

“No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13 — 215 of this Act.”

In the case sub judice, Knapp’s treatment by Galinski ended on February 13, 1982, and she did not file her cause of action until April 30, 1985, more than two years after the last treatment but less than four years from the treatment date and, therefore, she must fall within the “discovery rule” exception to the statute of limitations if she is to recover. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) “The discovery rule as applied to medical malpractice actions means the cause of action does not accrue in the sense of triggering the statute of limitations until a person *** knows or reasonably should know that it was wrongfully caused. [Citation.] At that point the burden is on the injured person to inquire further as to the existence of a cause of action. [Citation.] If the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused is a disputed question, it is to be resolved by the finder of fact.” Blair v. Blondis (1987), 160 Ill. App. 3d 184, 188-89, 513 N.E.2d 157.

Thus, as a plaintiff ostensibly falling within the discovery rule, Knapp bears “[the] burden of proving the date of discovery when seeking to come within the ‘discovery’ exception to the statute of limitations.” (Blair, 160 Ill. App. 3d at 188; see also Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 413 N.E.2d 480.) Consequently, the trial court’s instructions to the jury were an altogether fitting and correct statement of the law. Thus, it follows that the special interrogatory was proper in this circumstance as well. Therefore, the trial court committed no error. Moreover, while not raised as an issue by the parties, our review of the record on appeal convinces us that there was sufficient evidence presented at trial from which the jury could have reasonably concluded that Knapp’s claim was untimely as she did discover or reasonably should have discovered the injury at issue in this case on or prior to April 29, 1983, a date two years and one day prior to the filing of her complaint.

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

Judgment affirmed.

RIZZI and GREIMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER SIMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—84—1875
    Opinion filed June 30, 1993.

      Rita A. Fry, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Following a jury trial, defendant Peter Sims was found guilty and sentenced to serve 66 years for murder, 30 years for attempted murder and 20 years for armed robbery, the sentences to run concurrently.. On appeal, defendant contends he is entitled to a new trial based upon the State’s discriminatory use of peremptory challenges, excluding all African-American venirepersons from the jury.

Defendant Sims is of African-American heritage. In selecting the jury, the State exercised eight peremptory challenges to exclude the following persons: Lewis Kenny, Isadore Keelan, Hertha Bailey, Oterah Hudson, Stewart Sims, John Gordon, Jon Subak, and Thomas Pool. With the exception of Jon Subak and Thomas Pool, all of the excluded persons were African-American.

Following defendant’s motion for a mistrial, which was denied, the trial court found there was no racial discrimination in the State’s jury selection. While this case was pending on direct appeal, the United States Supreme Court decided the cases of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708. Batson held that a defendant may establish a prima facie case of racial discrimination based upon a prosecutor’s use of peremptory challenges to dismiss members of a defendant’s race. Once a defendant makes a prima facie showing, the burden shifts to the State to offer race-neutral explanations for the peremptory challenges. Likewise, in Griffith, the Court held that the Batson ruling applies to cases pending on direct appeal at the time Batson was decided.

This court subsequently held, in applying Batson to the case below, that defendant had established a prima facie case of racial discrimination against African-Americans in the selection of the jury. Accordingly, we remanded this case to the circuit court of Cook County for a Batson hearing, wherein the State was required to present race-neutral explanations for the exclusion of the six aforementioned African-American venirepersons. See People v. Sims (1987), 154 Ill. App. 3d 528, 507 N.E.2d 178.

The Batson hearing was held on April 26 and May 23, 1989, nearly five years after the original trial. Defense counsel motioned for a new trial based upon the length of time that had elapsed since the original trial as well as the fact that the State had failed to preserve its voir dire notes. The motion was denied, leaving the State to recall its reasons for exclusion based upon the memory of Chris Cronson, one of the prosecutors from the original trial who was present at the Batson hearing.

Six African-Americans were excluded from the jury. The first, Lewis Kenny, was a retired United States postal worker. He was excluded based upon Cronson’s opinion that postal workers were dishonest and had no respect for the law. He was also excluded for being retired, single and childless.

The second prospective juror, John Gordon, once lived in the same police district in which a testifying police officer worked. Gordon also had children the same age as the defendant who could have “police ties” or “negative contacts” with the police in that district.

Isadore Keelan was excluded because he had recently moved and the State believed he was, therefore, in a transient or unstable situation. He was also considered unstable because he was 62 years old, worked as a stock man in a shoe store and his general demeanor suggested he “could create problems in the deliberation process.”

Hertha Bailey was excluded solely because of her occupation as a United States postal worker.

Oterah Hudson was excluded because she resided in the crime vicinity, she rents her living quarters, and she may have had negative contacts with police officers. Additionally, she was considered unstable since she was unmarried and had two children.

Stewart Sims was excused because he was unemployed, did not own a home and he had to support numerous children. In addition, having the same last name as the defendant might produce bias in favor of the defendant, although there was no evidence that the two men were related.

Two Caucasian jurors selected, Joseph Molinare and Betty Dunne, were both unemployed, the former being a student and the latter a housewife. Molinare and Darlene Feeny, another Caucasian juror selected, were also both renters and did not own homes.

Finding all of the preceding explanations by the State to be “race-neutral,” the trial court denied defendant’s motion for a new trial. Although the trial court commented on the impropriety of excusing two jurors solely based upon their employment as postal workers, the court found the exclusions to be race-neutral.

To establish a prima facie case under Batson, first defendant must show that he is a member of a cognizable racial group and that the prosecutor removed a member of the defendant’s race from the venire by peremptory challenge. Second, defendant may rely on the fact that a peremptory challenge permits discrimination by those with a mind to discriminate. Finally, defendant must show that these facts, viewed in light of any other relevant circumstances, raise an inference that a potential juror was excluded on account of his race. Batson, 476 U.S. at 95-96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722.

The burden shifts to the State to provide race-neutral reasons for excluding the prospective jurors, after the defendant has presented a prima facie case of racial discrimination. These neutral explanations must be clear, reasonably specific and related to the particular case which the jury will hear. (Batson, 476 U.S. at 98 n.20, 90 L. Ed. 2d at 88 n.20, 106 S. Ct. at 1724 n.20.) A prosecutor may not merely assert good faith or generally deny a discriminatory motive in selecting jurors. The trial court must then make a finding as to whether the State purposefully discriminated in light of all relevant circumstances. A trial court’s determination as to intentional discrimination is a finding of fact and will not be overturned unless it is against the manifest weight of the evidence. Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21; People v. Mack (1989), 128 Ill. 2d 231, 238, 538 N.E.2d 1107; People v. Mahaffey (1989), 128 Ill. 2d 388, 413, 539 N.E.2d 1172.

In deciding whether the defendant has made the requisite showing, the trial court may consider whether there existed a pattern of strikes against members of the defendant’s race. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Moreover, the prosecutor’s statements and questions during voir dire examination may substantiate an inference of discrimination.

We initially observe that unemployment has been recognized as a valid race-neutral explanation in the jury selection process. (People v. Morgan (1991), 142 Ill. 2d 410, 435, 568 N.E.2d 755 (explanation sufficiently based upon unemployment and lack of ties to community); People v. Mack, 128 Ill. 2d at 241 (one venireman was excused due to an unstable job history and another because of unemployment).) We note, however, that the unemployment explanation must be viewed within the larger context of the entire selection process and whether or not there appears to be a pattern of racially motivated strikes. Stewart Sims was apparently excluded because he was unemployed. However, two Caucasian jurors who were selected were also unemployed. The State considered them to be more “stable” since one was a student and the other a house-wife. Although this explanation sufficiently calls into question the motives of the State, we do not find the trial court’s finding as to Sims to be against the manifest weight of the evidence.

The exclusion of Lewis Kenny and Hertha Bailey because they were employed by the United States Postal Service inherently contradicts the State’s concern with employment status and stability. The State’s reliance on the unfounded notion that postal workers are “dishonest and have no respect for the law” smacks of the kind of nonspecific, subjective and racially suspect explanations which the Supreme Court hoped to obliterate via the Batson decision. The trial court even opined that the explanation was arbitrary and improper. This kind of baseless explanation should have been a warning signal to the trial court to employ a heightened scrutiny in examining the remaining explanations, in order to make a reasoned decision as to a pattern of racial discrimination.

In light of our finding that mere employment as a postal employee is not a sufficiently race-neutral explanation for excluding a venireperson, we turn to the remaining explanations. Isadore Keelan was excluded because he had recently moved and because, at the age of 62, the State would have expected him to be employed at a level beyond a stock person at a shoe store. This explanation is not only ludicrous but it bespeaks a brand of bourgeois arrogance on the part of the State in deciding what “level of employment” a man of 62 years should possess. Apparently, not only does the State want its jurors to be employed, but it wishes to fill the jury with its own choice of professional.

We next consider the exclusion of John Gordon because he formerly lived in the same police district as a testifying policeman and his children may have had “negative contacts” with the police. Since no specific information was known about Gordon’s children, we find that the kind of presumptions being made by the State in this instance are highly subjective and the type which could be conveniently employed by those with a mind to discriminate. It would be a different case if defense counsel moved to dismiss a venireperson who lived in the vicinity of the crime, since such a person might fear his safety in the community and form an unfair bias against the defendant. However, in this instance, the State is making an unfair presumption that Gordon’s children might themselves be criminally inclined, creating “negative contacts” with local police.

Oterah Hudson was also dismissed for living in the same por lice district and because she was an unwed mother. We find that the mere status of a person as an unwed mother or father is not a legitimate race-neutral explanation for excusing a prospective juror. Moreover, no specific facts were presented supporting the State’s unfounded presumptions that Hudson or her children may have had negative contacts with the police.

Although we concur with the court’s ruling as to Stewart Sims on the basis of his unemployment, we find that the trial court’s ruling as to the remaining five venirepersons was manifestly erroneous. The explanations of the State as to all five were clearly insufficient to rebut the defendant’s prima facie showing of discrimination.

Because we find that the State failed to present legitimate race-neutral reasons for its use of peremptory challenges in dismissing five of the six African-Americans eliminated from the jury selection, we must remand this case for a new trial. We, therefore, need not address defendant’s remaining issues on appeal.

Reversed and remanded.

RIZZI and CERDA, JJ., concur.


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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL ORTIZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1353
    Opinion filed June 30, 1993.

      Rita A. Fry, Public Defender, of Chicago (Beth Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Rebecca Davidson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Angel Ortiz was charged with one count of armed robbery and one count of aggravated battery. Following a jury, trial, Ortiz was found guilty of armed robbery and sentenced to 14 years’ imprisonment to be served concurrently with four years for violating his bail bond. On appeal, defendant raises numerous issues, but this court will' only address the following: (1) whether defendant was entitled to a Batson hearing on the exclusion of African-Americans from the jury, where defendant was of a race different from that of the excluded jurors; and (2) whether the State improperly instructed the jury as to defendant’s “other crimes” when there was no evidence of other crimes committed by defendant.

This case arises out of a robbery which occurred on September 19, 1980, in the area of Belmont and Sheffield Streets in the City of Chicago. The victim, Douglas Fox, was working for the City of Chicago Department of Planning, photographing the Belmont area for a community development project. He was carrying a 35-millimeter camera wrapped around his shoulder. A burgundy Pontiac pulled up alongside Fox and two men exited the car. The men came toward Fox, pushed him up against a wall and demanded his camera. The entire incident occurred within three minutes’ time. Fox later identified defendant in a police lineup.

Prior to swearing in the jury, defense counsel motioned for a mistrial on the basis that the State had exercised its peremptory challenges to exclude all African-American venirepersons. The triál judge concluded that the defense had met its burden of showing a prima facie case of discrimination, but denied the motion on the basis that such a claim could not be raised by a defendant who is not a member of the racial or ethnic group excluded from the jury. Defendant is Hispanic-American.

In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the Supreme Court held that discrimination in the jury selection could be proven based upon the State’s use of peremptory challenges. To establish a prima facie case under Batson, first defendant must show that he is a member of a cognizable racial group and that the prosecutor removed a member of the defendant’s race from the venire by peremptory challenge. Second, defendant may rely on the fact that a peremptory challenge permits discrimination by those with a mind to discriminate. Finally, defendant must show that these facts, viewed in light of any other relevant circumstances, raise an inference that a potential juror was excluded on account of his race. Batson, 476 U.S. at 95-96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722-23.

Once the trial court finds a prima facie case by the defendant, the burden shifts to the State to provide race-neutral reasons for excluding the prospective jurors. These neutral explanations must be clear, reasonably specific and related to the particular case which the jury will hear. (Batson, 476 U.S. at 98 n.20, 90 L. Ed. 2d at 88 n.20, 106 S. Ct. at 1724 n.13.) In other words, a prosecutor may not merely assert good faith or generally deny a discriminatory motive in selecting jurors. After reviewing the State’s explanations, the trial court must then make a finding as to whether the State purposefully discriminated in light of all relevant circumstances. A trial court’s determination as to intentional discrimination is a finding of fact and will not be overturned unless it is against the manifest weight of the evidence. Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21; People v. Mack (1989), 128 Ill. 2d 231, 238, 538 N.E.2d 1107; People v. Mahaffey (1989), 128 Ill. 2d 388, 413, 539 N.E.2d 1172.

The precepts of Batson were further extended by Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364, which held that a criminal defendant may object to the race-based exclusion of jurors whether or not the defendant and the excluded jurors share the same race. Furthermore, Illinois courts have held that Powers applies retroactively to all cases pending on direct review. People v. Pecor (1991), 213 Ill. App. 3d 472.

Based upon the holding in Powers v. Ohio and its retroactive application to this case, we find that the defendant in this case is entitled to a Batson hearing, requiring that the State present race-neutral explanations for its exclusion of all African-Americans from the jury. At the time of trial, the trial judge acted within the confines of then existing case law in denying defendant a Batson hearing.

We next consider the propriety of the jury instructions. The State tendered an instruction to the jury regarding the “other crimes” committed by defendant, reasoning that defendant’s drug addiction served as a motive for the armed robbery. Over defense counsel’s objection, the following instruction was given:

“Evidence has been received that the defendant has been involved in offenses other than that charged in the information. This evidence has been received solely on the issue of the defendant’s motive. This evidence may be considered by you only for the limited purpose for which it has been received.”

Evidence of other offenses is inadmissible except where the evidence goes to show motive, intent, identity, absence of mistake or modus operandi. The law distrusts such evidence because it implies that if a person has committed other crimes, he or she is more likely to have committed the offense in question. People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

We find that the trial court improperly informed the jury of defendant’s “other crimes” based solely on the fact that defendant was a drug addict. There was absolutely no evidence presented by the State in this case on which to base the jury instruction. This instruction merely injected a new issue into the case and perhaps confused the jury. We find the actions of the State in this instance to be highly inappropriate and reversible error.

Although we have decided that defendant was entitled to a Bat-son hearing, we need not remand for such a hearing since this case must be remanded for a new trial based upon the “other crimes” jury instruction tendered by the State. For all of the foregoing reasons, this case is remanded to the circuit court of Cook County for a new trial.

Reversed and remanded.

RIZZI and CERDA, JJ., concur.