author: JUSTICE LaPORTA

text:
    FIRST NATIONAL BANK AND TRUST COMPANY OF EVANSTON, as Trustee, et al., Plaintiffs-Appellees, v. J.P. SCHERMERHORN AND COMPANY, INC., et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—88—2456, 1—88—3470 cons.
    Opinion filed December 29, 1989.

      Ross S. Welch, of Chicago, for appellants.
    DeHaan & Richter, P.C., of Chicago (Ronald M. DeHaan and David L. Kazan, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiffs instituted this action in chancery against defendants seeking an accounting, an injunction, and damages based upon defendants’ breach of fiduciary duties and contract obligations in relation to property held in a land trust. The trial court granted the injunctive relief and ordered an accounting. After a trial on the allegations regarding the accounting, the trial court granted plaintiffs compensatory and punitive damages but denied plaintiffs’ petition for attorney fees. Defendants have appealed the award of compensatory and punitive damages, and plaintiffs have appealed the denial of their petition for fees.

First National Bank and Trust Company of Evanston was trustee under trust number R — 1715, which held title to the property at issue. The beneficial interest under the trust was held by plaintiffs Margaret Schermerhorn and Ella Metoyer. Margaret Schermerhorn owned 80.8% of the beneficial interest under the trust, and Ella Metoyer owned the remaining 19.2% of the beneficial interest. Plaintiffs filed a three-count complaint on November 22, 1983, naming J.P. Schermerhorn & Co., Inc., and Jack P. Schermerhorn as defendants and seeking an injunction, an accounting, and compensatory damages. Plaintiffs later amended the complaint, asserting three additional counts against the defendants.

Defendant Schermerhorn & Co. was added as a party-defendant after Jack P. Schermerhorn voluntarily dissolved the corporate defendant J.P. Sehermerhorn & Co. and on the same day incorporated Sehermerhorn & Co., transferring all of the former corporation’s assets to the new corporation.

On December 2, 1983, the trial court granted plaintiffs’ request for injunctive relief, entering an order restraining defendants from managing or attempting to manage the property and from interfering with plaintiffs’ management thereof. On April 30, 1984, defendants filed a motion to dismiss the accounting action, asserting that they had fully accounted to plaintiffs as reflected by the monthly statements which were attached as exhibits to the motion to dismiss. The motion to dismiss was denied, and the court ordered defendants to file a formal, verified accounting. Thereafter, defendants filed an “accounting” which included the same monthly statements previously attached to the motion to dismiss along with 10 pages of “minor discrepancies” intended to correct certain errors in the “accounting.” This pleading was signed by defendant Jack Sehermerhorn as president of the previously dissolved J.P. Sehermerhorn & Co. This accounting was stricken, and on November 3, 1987, defendants filed a verified amended accounting which indicated that defendants owed plaintiffs $489.37. Plaintiffs filed objections to the accounting regarding certain disputed items contained therein.

A trial was subsequently held on count I of the complaint, which sought an accounting. The evidence adduced at trial established that plaintiff Margaret Sehermerhorn was the younger sister of defendant Jack P. Sehermerhorn, and that these two parties entered into a contract by which defendants were to manage the apartment building which was the property at issue. That contract contained a provision indicating that it was to run initially for two years commencing May 15, 1978, and was to continue thereafter until terminated by either party upon 90 days’ prior written notice. The contract also provided that defendants’ compensation for management was to be 5% of the gross amount collected each month, and for leasing, was to be at the regular and customary rates as recognized by the Chicago Real Estate Board for all new tenants secured, and one-half such rates for renewals of leases executed while the agreement was in force.

Defendants managed the property under that contract for 5V2 years, until plaintiffs terminated the contract by letter to defendants on November 9, 1983, effective immediately. At trial, witnesses for both plaintiffs and defendants testified as to the management of the plaintiffs’ property and as to the specific amounts reflected in defendants’ verified accounting. Plaintiffs presented the testimony of Marie Richter, a certified public accountant specializing in real estate accounting. Richter examined the accounting and supporting documents submitted by defendants and prepared a report which reflected errors and omissions in defendants’ accounting. Defendants presented the testimony of Neil King, who stated that the charges reflected in defendants’ accounting were proper. At the conclusion of all of the evidence presented, the trial judge found that defendants’ conduct in relation to management of plaintiffs’ property was not a mere omission and oversight, but amounted to neglect and intentional misrepresentation. The court concluded that defendants had breached their fiduciary duty to plaintiffs. The court entered a judgment on the accounting in favor of the plaintiffs in the amount of $7,874.40, plus punitive damages to be assessed at a later date. Defendants subsequently filed a motion to reconsider the judgment, asserting that errors were made in the calculation of compensatory damages. On July 11, 1987, the trial court denied defendants’ motion to reconsider the judgment and awarded plaintiffs $2,500 as punitive damages.

On May 14, 1984, four years prior to entry of the judgment, plaintiffs had filed a motion for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), which had been entered and continued sine die. On August 16, 1988, plaintiffs modified their petition for fees under section 2 — 611. The fee petition was denied by the trial court on October 28, 1988.

Thereafter, defendants appealed the judgments for compensatory and punitive damages, and plaintiffs appealed the denial of sanctions under section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2—611).

Defendants contend that the court erred in refusing to modify the judgment for compensatory damages entered on May 2, 1988. The components of compensatory damages which are disputed by defendants include (1) a claimed error of $830 in Richter’s report which indicated variances in defendants’ verified accounting; (2) a bill for $250 for legal services rendered to defendants which was disallowed by the trial court; (3) a disputed amount of $157.20 for hardware bills wrongfully assessed to plaintiffs’ property; (4) leasing commissions of $1,262.88 charged to plaintiffs in December 1983 which were denied by the trial court; (5) the balance of $3,265.95 for leasing commissions charged to plaintiffs in December 1983; (6) management fees of $1,372.42 charged on security deposits which were disallowed by the trial court; (7) late fees of $1,326.42 collected from tenants as a penalty for late payment of rent which was not allowed by the trial court; (8) three-month commission of $1,570.50 in lieu of 90-day notice of cancellation of the management contract.

With regard to item number 1, this alleged error was fully addressed during the examination of Marie Richter, the certified public accountant retained by plaintiffs who examined the books and records kept by defendants on the property at issue, and during the examination of Daniel Schermerhorn, the son of defendant Jack Schermerhorn and bookkeeper for the defendant management company after April 1984. Careful review of the exhibits submitted at trial and of the testimony of these two witnesses reveals that certain amounts reflected in defendants’ ledger cash receipts had been erased and/or altered after Richter obtained copies of those documents and prepared schedule 5. This issue was exhaustively covered by counsel for plaintiffs and for defendants and was considered by the trial judge. Upon review of all of the evidence presented, the court found that, in fact, there was no discrepancy and that the amounts reflected in schedule 5 were accurate. Accordingly, the court declined to modify the compensatory damage award in this regard.

Item number 2 was properly disallowed by the court in light of the language of paragraph 5(b) of the management contract. That provision is intended to indemnify defendants for legal fees incurred in representing the plaintiffs’ interests in managing the property at issue. Fees incurred to defend the instant action are not allowed under that provision.

The trial court found that the items numbered 3, 4, 5, 7, and 8 were not justified under the contract provisions or under the evidence presented. These matters were exhaustively addressed by counsel and carefully considered by the court. There is no evidence in the record which would compel a reversal of the court’s determination of these issues.

In regard to item number 6, defendants argued that they were justified in charging a commission on security deposits at the time they were received and again when they were applied as rent. In support of this contention, defendants presented the testimony of Neil King, an expert in real estate management, who stated that such charges were customary. This evidence was contradicted by Marie Richter, who testified that she specialized in real estate accounting and had never seen double commissions charged on security deposits before. Richter also testified that such double commissions were improper under the accepted definition of “income” used by professional accountants. Jack P. Schermerhorn testified that Margaret Schermerhom was aware that these commissions, as well as the late fees, were being collected by defendants and had agreed to them. Margaret Schermerhorn, however, specifically denied having prior knowledge of such charges and denied that she had agreed to them. The trial court found that defendants were not entitled to charge double commissions on the security deposits and held that defendants’ conduct amounted to a breach of their fiduciary duty to plaintiffs. This issue was also fully explored at trial, and the record contains no evidence indicating that the trial court’s decision should be reversed.

It is well established that the determination of damages by a trial court sitting without a jury will not be set aside unless it is manifestly erroneous. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 148-49, 281 N.E.2d 323, 326; In re Estate of Chaitlen (1989), 179 Ill. App. 3d 287, 292, 534 N.E.2d 482, 485.) Absolute certainty is not required, and all that the law requires is that there be an adequate basis in the record for the court’s determination. (Schatz, 51 Ill. 2d at 147, 281 N.E.2d at 325-26; Chaitlen, 179 Ill. App. 3d at 292, 534 N.E.2d at 485.) Review of the record in the instant case reveals that the trial court properly considered and evaluated the evidence relating to the components of the compensatory damages due plaintiffs. The trial court’s determination was not manifestly erroneous and will not be set aside.

Defendants assert the trial court erred in awarding punitive damages. We agree. Plaintiffs did not request punitive damages in the prayer for relief in count I, which sought an accounting. The evidence adduced at trial was limited to the allegations raised in count I. Consequently, the issue of punitive damages was not before the court. The record reveals that plaintiffs have requested punitive damages in counts III, IV, and VI of the complaint. We believe that imposition of punitive damages, if justified, would be appropriate only after trial on these counts or after notice and a hearing on this issue.

Finally, we consider plaintiffs’ assertion that the court erred in denying their petition for attorney fees where defendants abused their right of free access to the courts in violation of section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). Plaintiffs contend that the defendants made sworn statements in pleadings which were later proven untrue.

Defendants claim that plaintiffs’ petition was' untimely because it was not filed within 30 days of the entry of the judgment. This claim is without merit because plaintiffs originally filed their petition on May 14, 1984, and it was continued sine die and amended and reasserted after judgment. Thus, we find the petition was timely.

Illinois courts have held that section 2 — 611 is penal in nature, and its provisions should be invoked only in cases falling strictly within its terms, and a party seeking to recover fees under this section has the burden of proving that his opponent made untrue allegations without reasonable cause. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77, 535 N.E.2d 876, 883.) The decision whether to allow recovery under this section is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. Wernick, 127 Ill. 2d at 77-78, 535 N.E.2d at 883.

Plaintiffs contend that the court should have granted their petition for fees based upon the defendants’ denial that expenses for other properties were attributed to plaintiffs’ property; defendants’ denial that a fiduciary relationship existed; defendants’ dilatory behavior in filing a motion to dismiss, their assertion in that motion that defendants had fully accounted to plaintiffs, and the inclusion of monthly statements containing inaccurate figures which were later corrected; the verification of the accounting by Jack P. Schermerhorn as president of J.P. Schermerhorn & Co., Inc., which had previously been voluntarily dissolved; and the need for a trial as a result of defendants’ conduct.

Although the trial judge in the instant case found that defendants had breached their fiduciary duty to plaintiffs, he specifically found that an award of fees under section 2 — 611 was inappropriate. Review of the record supports this conclusion. Plaintiffs have failed to prove that the defendants’ statements were untrue and were made without reasonable cause. Testimonial inconsistencies are not a sufficient basis for recovery under section 2 — 611, and the determination of the trial judge must be afforded great deference. (Wernick, 127 Ill. 2d at 82, 535 N.E.2d at 886.) The conduct complained of by plaintiffs was considered and evaluated by the trial judge, and he determined that plaintiffs were not entitled to attorney fees. The totality of the circumstances before the court, including the examples of misconduct cited by plaintiffs, are insufficient to support an award of fees and expenses under section 2 — 611. Thus, the trial judge did not abuse his discretion in denying plaintiffs’ petition.

For the foregoing reasons those portions of the order granting plaintiffs compensatory damages and denying plaintiffs’ petition for fees are affirmed; that portion of the order granting plaintiffs punitive damages is reversed.

Affirmed in part; reversed in part.

EGAN, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    GERALDINE DOWLING, Ex'r of the Estate of Patrick Dowling, Deceased, Plaintiff, v. OTIS ELEVATOR COMPANY et al., Third-Party Plaintiffs-Appellants (Schal Associates, Inc., Third-Party Defendant-Appellee).
    First District (6th Division)
    No. 1—88—2961
    Opinion filed December 29, 1989.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (James R DeNardo, Charles R Menges, and Christine L. Olson, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kevin R. Sido, Nancy G. Lischer, and Michael J. Flaherty, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This appeal arises from the dismissal of the third-party complaint for contribution filed by Otis Elevator Company (Otis) against Schal Associates, Inc. (Schal). The underlying action was brought by Geraldine Dowling, the executor of the estate of Patrick Dowling, seeking relief for the wrongful death of her son, who was employed by Schal and working on the site. Schal’s motion to dismiss was based upon a contractual provision in Otis’ subcontract with Schal in which Otis had agreed to procure insurance naming Schal as an additional insured. Schal contended that the parties to the construction subcontract, by agreeing that insurance would be provided, had agreed to mutually exculpate each other in the event of any personal injuries or loss resulting from the construction. The trial court granted Schal’s motion to dismiss. Otis has appealed the denial of its subsequent motion to reconsider the dismissal order. Only Schal and Otis are parties to this appeal.

On appeal, Otis contends that the trial court erred in finding that it was precluded from maintaining a contribution action against Schal. Schal has filed a motion to dismiss the appeal, asserting that Otis’ notice of appeal was not timely filed.

On November 19, 1984, Patrick Dowling, the plaintiff’s decedent and an employee of Schal, was injured while working on a construction project for which Schal was the construction manager and Otis was a subcontractor who agreed to furnish and install all of the elevators required for the construction project. Plaintiff, Geraldine Dowling, executor of the estate of Patrick Dowling, subsequently brought an action against Otis, Miglin-Beitler Development, Inc., and Madison Plaza Corporation, seeking relief for the alleged wrongful death of her son. Otis answered the complaint and denied all material allegations.

Otis thereafter filed a third-party complaint against Schal, seeking contribution for allegedly negligent conduct by Schal which resulted in the death of plaintiff’s decedent. Specifically, Otis asserted that Schal was negligent by failing to instruct and supervise its employees, failing to barricade an elevator shaft, failing to provide outer doors to an elevator shaft, and failing to inform subcontractors when people would be working in or around the elevator shaft.

Schal moved to dismiss the third-party complaint, asserting that because Otis had agreed to name Schal as an additional insured on its comprehensive general liability policy, Otis was precluded from maintaining a contribution action against Schal. At the hearing on the motion to dismiss, counsel for Schal argued that by the terms of the subcontract, Otis had agreed to indemnify Schal through insurance. Counsel contended that Otis was, therefore, precluded from bringing its third-party action against Schal for contribution. On January 26, 1988, the trial judge granted Schal’s motion to dismiss the third-party complaint with prejudice, finding that the insurance provision in the contract was controlling. The court also held that the order was final and appealable with no just reason for delay in its enforcement or appeal.

On February 16, 1988, Otis filed a timely motion to reconsider the dismissal order. At the hearing on Otis’ motion to reconsider, counsel for Schal argued that the subcontract evidenced a determination by the parties as to how a loss was to be apportioned. Counsel for Schal contended further that Otis’ procurement of insurance for Schal prohibited Otis from seeking contribution from Schal in the event of a loss for which both parties were responsible. On that date, another circuit court judge sua sponte vacated the language pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) and continued the hearing on the merits of the motion for reconsideration because the trial judge who entered the dismissal order of January 26, 1988, was on vacation. Schal thereafter filed its response to Otis’ motion.

On August 8, 1988, the original trial judge denied Otis’ motion for reconsideration, stating that Otis’ agreement to provide insurance amounted to exculpation of Schal. The court again held that its order was final and appealable with no just reason for delay in its enforcement or appeal. On August 26, 1988, Otis filed the instant appeal.

The subcontract between Schall and Otis included an insurance rider which required Schal to maintain comprehensive general liability insurance with the employee exclusion deleted. The insurance rider to the subcontract also required Otis to maintain comprehensive general liability insurance with the employee exclusion deleted. Furthermore, Otis was required to name Schal as an additional insured under its comprehensive general liability policy, excluding coverage for the sole negligence of Schal. In addition, both Schal and Otis were obligated to maintain workers’ compensation insurance.

The subcontract also included an indemnification clause whereby Otis agreed to indemnify Schal for any and all damages sustained by reason of accidents occurring during the work and caused by the act or omission of Otis. Although the insurance rider provided that the employee exclusion was to be deleted from Otis’ comprehensive general liability insurance, the policy ultimately obtained by Otis included such an exclusion.

Schal filed a motion to dismiss Otis’ notice of appeal on the ground that it was not timely filed. This court ordered that the motion to dismiss be taken with the case. Because our jurisdiction generally depends upon the timely filing of a notice of appeal, we initially consider the arguments raised in Schal’s motion to dismiss the appeal.

At the time the original dismissal order was entered, Illinois Supreme Court Rule 304(a) provided as follows:

“(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (Emphasis added.) 107 Ill. 2d R. 304(a).

In Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, the Illinois Supreme Court examined the effect of a timely motion to reconsider a piecemeal judgment entered in multiclaim or multiparty litigation and held that the filing of such a motion did not toll the running of the 30-day period for filing a timely notice of appeal based upon a Rule 304(a) finding. The Elg decision was applied prospectively to all cases in which the notice of appeal was filed or due to be filed on or after November 16, 1987.

In Parrish v. Lee (1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188, the third district cited Elg v. Whittington in holding that when a trial court makes a Rule 304(a) finding, it loses jurisdiction, preventing revision of the final judgment, and a post-trial motion directed against that judgment would be of no effect. (Parrish, 167 Ill. App. 3d at 446, 521 N.E.2d at 1189.) Thus, the court concluded that inclusion of Rule 304(a) language in an order divests a trial court of jurisdiction to rule on a motion to vacate, and the 30 days allowed for filing an appeal of that order are not tolled by the subsequent motion to vacate. Parrish, 167 Ill. App. 3d at 446-47, 521 N.E.2d at 1190.

Relying on Elg and Parrish, Schal has asserted that the trial court’s inclusion of Rule 304(a) language in the January 26, 1988, dismissal order divested the court of jurisdiction to entertain Otis’ motion for reconsideration. Several appellate cases decided subsequent to Elg have held that a trial court retains jurisdiction to rule on a timely post-trial motion and that the court is not divested of jurisdiction until a notice of appeal is properly filed. (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, 185, 541 N.E.2d 1376, 1379-80; Lake County Trust Co. v. Two Bar B, Inc. (1989), 182 Ill. App. 3d 186, 191, 537 N.E.2d 1015, 1019; Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 945, 521 N.E.2d 1292, 1294.) We believe that the better reasoned conclusion is that reached in Battisfore, Lake County Trust Co., and Cain. This conclusion is supported by the supreme court’s amendment of Rule 304(a) which provides that the notice of appeal must be filed within 30 days of the court’s disposition of the last pending post-trial motion, see June 28, 1989, Official Reports Advance Sheet No. 13, 134 Ill. 2d R. 304(a).

The facts of the instant case compel a similar result. Here, Otis filed a timely motion for reconsideration, and the Rule 304(a) language included in the dismissal order was vacated within the 30-day period for appeal. Consequently, the trial court clearly retained jurisdiction to entertain and rule on Otis’ motion for reconsideration. (Battisfore, 186 Ill. App. 3d at 185, 541 N.E.2d at 1379-80.) Otis’ notice of appeal was filed within 30 days of the court’s denial of its motion for reconsideration and was, therefore, timely. Accordingly, Schal’s motion to dismiss the appeal is denied.

Having concluded that we have jurisdiction over this matter, we now address the issues raised by the parties.

Otis asserts that the trial court erred in finding that the terms of the subcontract precluded Otis from maintaining a third-party action against Schal. It is undisputed that indemnification provisions in construction contracts which relieve a person of liability for his own negligence are void as against public policy and are wholly unenforceable. (Ill. Rev. Stat. 1985, ch. 29, par. 61; Bosio v. Branigar Organization, Inc. (1987), 154 Ill. App. 3d 611, 613, 506 N.E.2d 996, 998.) Thus, Schal’s argument before the trial court that Otis was obligated to indemnify Schal through insurance was without merit and insufficient to support the motion to dismiss the third-party complaint.

On appeal, Schal contends that the insurance provision and indemnity clause in the subcontract evidence the intent of the parties to “mutually exculpate” each other in the event of a loss arising out of the construction project. The terms of the contract do not, however, provide sufficient basis to preclude the third-party action. It has been held that a promise to obtain insurance is not the same as a promise to indemnify. (Zettel v. Paschen Contractors, Inc. (1981), 100 Ill. App. 3d 614, 617, 427 N.E.2d 189, 191; Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 783, 401 N.E.2d 1032, 1036.) Under an indemnity agreement, the promisor agrees to assume all responsibility and liability for injuries or damages. Under an agreement to obtain insurance, the promisor merely agrees to procure the insurance and to pay the premiums. (Zettel, 100 Ill. App. 3d at 617-18, 427 N.E.2d at 192.) An agreement to obtain insurance is not an agreement of insurance, and a person promising to obtain insurance does not by that promise become an insurer. (Zettel, 100 Ill. App. 3d at 617, 427 N.E.2d at 191.) The obligation to provide insurance is contractual, and unless the contract indicates otherwise, the mere obtaining of insurance will not bind a party to exculpate the insured from any and all loss associated with a particular venture. See Rome, 81 Ill. App. 3d at 783, 401 N.E.2d at 1036.

Indemnity contracts will not be construed as relieving one of liability for his own negligence unless such an intention is expressed in unequivocal terms. (Fourfouris v. Standard Oil Realty Corp. (1981), 100 Ill. App. 3d 162, 163, 426 N.E.2d 915, 916.) The same reasoning should be applied to agreements which purport to exculpate a party from his own negligence. In the case at bar, Otis agreed to provide Schal with comprehensive general liability insurance and to indemnify Schal against Otis’ negligence. These contract provisions do not include clear or explicit language that states in unequivocal terms that Otis intended to exculpate Schal from Schal’s own negligence. The plain language of the contract renders such a construction unsupportable. See Hibbler v. Ockerlund Construction Co. (1985), 130 Ill. App. 3d 30, 33-34, 473 N.E.2d 597, 600 (Linn, J ., dissenting).

The insurance clause in the instant case is similar to that considered in Bosio v. Branigar Organization, Inc. (1987), 154 Ill. App. 3d 611, 506 N.E.2d 996. There, the court construed a contract provision requiring a contractor to obtain public liability insurance to protect the owner of the property. The court held that such a provision was valid because it protected the interests of the construction workers and the general public by preserving a potential source of compensation for injured workers. (Bosio, 154 Ill. App. 3d at 614, 506 N.E.2d at 998.) The court held further that a contract provision requiring a contractor to obtain public liability insurance to protect the owner of property was not an agreement to indemnify or to hold another person harmless from that person’s own negligence. Bosio, 154 Ill. App. 3d at 615, 506 N.E.2d at 999.

It must be noted that Otis’ claim against Schal was for contribution and was based upon Schal’s allegedly negligent conduct which resulted in the death of plaintiff’s decedent. Thus, Otis’ third-party complaint sought recovery from Schal only to the extent of Schal’s negligence and its pro rata share of the common liability. (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) An agreement indemnifying Schal for its own negligence would be void. (Ill. Rev. Stat. 1985, ch. 29, par. 61.) Because the terms of the contract do not include unequivocal language requiring Otis to exculpate Schal from liability for its own negligence, Otis should be permitted to maintain its third-party action against Schal.

It may be true that any judgment against Schal will be satisfied out of the insurance proceeds from the policy obtained by Otis. Thus, the insurance provision indicates an acknowledgement by the parties that Schal may be held liable for losses arising out of the construction project. By the terms of the contract, the parties provided that Schal would be insured against such losses under the policy obtained and paid for by Otis. Otis’ agreement to provide such insurance is not the same as a clear and explicit waiver of its right to contribution and does not preclude Otis from asserting its right to contribution from Schal for its pro rata share of the common liability. Schal cannot successfully argue that the existence of insurance coverage determines the issue of liability any more than the plaintiff would be able to make such a claim in the underlying action.

We also note that, contrary to Schal’s assertion, the subcontract does not reflect that the parties intended to “mutually exculpate” each other. Examination of the contract terms reveals that they do not express any mutuality of an obligation to exculpate. Rather, the contract provisions indicate that Otis was required to indemnify Schal for any personal injury, wrongful death, or property damage claims occasioned by Otis’ negligence. Furthermore, Otis was required to procure and maintain a comprehensive general liability insurance policy, deleting the employee exclusion and naming Schal as an additional insured. The subcontract does not impose any similar obligations upon Schal to protect or insure Otis against potential claims. Consequently, the record before the court does not support Schal’s claim that the parties intended to “mutually exculpate” each other against liability arising out of the construction project.

The cases relied upon by Schal are factually distinguishable from the instant case and are not controlling. In One Hundred South Wacker Drive, Inc. v. Szabo Food Service, Inc. (1975), 60 Ill. 2d 312, 326 N.E.2d 400, Cerny-Pickas & Co. v. C.R. John Co. (1955), 7 Ill. 2d 393, 131 N.E.2d 100, both involving fire losses, and Signode Corp. v. Normandale Properties, Inc. (1988), 177 Ill. App. 3d 526, 532 N.E.2d 482, involving a roof collapse, the courts considered the terms of property leases and construed provisions requiring a tenant to return the property to the landlord in substantially the same condition as when it was received. Although these cases addressed the obligations of the parties to insure against such losses and the parties’ liability for losses caused by their own negligence, these decisions are clearly limited to factual circumstances involving lease provisions agreed to by landlords and tenants. (See One Hundred South Wacker Dr., Inc., 60 Ill. 2d at 316, 326 N.E.2d at 402.) Consequently, they are not controlling in the case at bar.

Midland Insurance Co. v. Bell Fuels, Inc. (1987), 159 Ill. App. 3d 780, 513 N.E.2d 1, and Reliance Insurance Co. v. Nick J. Giannini, Inc. (1987), 158 Ill. App. 3d 657, 511 N.E.2d 755, both involved declaratory judgment actions brought by insurers seeking to deny coverage for the defense or indemnification of its insured with respect to third-party contribution actions. These cases concerned the duty of an insurer to defend or indemnify against third-party actions in light of certain specific coverage exclusions contained in the policies there at issue. The decisions in Midland and Reliance are also not applicable to the case at bar.

In Village of Rosemont v. Lentin Lumber Co. (1986), 144 Ill. App. 3d 651, 494 N.E.2d 592, Fourfouris v. Standard Oil Realty Corp. (1981), 100 Ill. App. 3d 162, 426 N.E.2d 915, and in Vandygriff v. Commonwealth Edison Co. (1980), 87 Ill. App. 3d 374, 408 N.E.2d 1129, the evidence presented clearly established that the parties to the contracts in issue intended that the insurance provided by the contractors was to protect against any personal liability on the part of the property owners and that the contractors had specifically waived all rights to contribution from the owners. In the instant case, there is no evidence indicating that the parties intended that the insurance provided by Otis was to protect Schal against all liability or that Otis had waived its right to contribution from Schal. Thus, the decisions in these cases are also not applicable to the instant case.

The record and the applicable case law support the conclusion that Otis agreed to provide comprehensive liability insurance for Schal and that Otis agreed to indemnify Schal for Otis’ negligence. Otis did not waive its right to contribution from Schal or agree to indemnify Schal for its own liability.

Although Schal may have a claim against Otis under a breach of contract theory for its failure to obtain an insurance policy with the employee exclusion deleted, this should not preclude Otis from asserting its right to contribution. Moreover, the record does not indicate that the parties intended that the insurance coverage obtained by Otis protected Schal from liability and made Schal immune to suit for contribution on the basis of its pro rata share of the common liability.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McNAMARA and DiVITO, JJ., concur.


text:
    THEODORE CHABRAJA et al., Indiv. and on behalf of all other consumers similarly situated, Plaintiffs-Appellants and Plaintiffs-Appellees, v. AVIS RENT A CAR SYSTEM, INC., Defendant-Appellee and Defendant-Appellant.
    First District (6th Division)
    Nos. 1—88—2965, 1—89—0531 cons.
    Opinion filed December 29, 1989.

      Clinton A. Krislov, Fay Clayton, of Kahn, Robinson, Curley & Clayton, and Paul Strauss, of Davis, Barnhill & Galland, all of Chicago, for appellants.
    John B. Simon, Patricia Lee Refo, and Christopher D. Liguori, of Jenner & Block, and Robert J. Rubin and Jodi L. Kornfeld, both of Altheimer & Gray, both of Chicago, for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff Theodore Chabraja (Chabraja) brought a class action suit on behalf of persons in Illinois against defendant, Avis Rent A Car System, Inc. (Avis), asserting common-law fraud and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.) and the Illinois Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 311 et seq.). Chabraja contended that Avis committed these acts by offering to persons renting cars from Avis, including himself, a “Collision Damage Waiver” (CDW) at additional expense, without revealing to the renters that the CDW for rental cars was often included under other coverage the renter might have, and therefore, according to Chabraja, was worthless. Chabraja also contends that the statement on the rental policy that “CDW IS NOT INSURANCE” was incorrect.

Chabraja later moved for permission to file an amended complaint, to clarify the allegations of the original complaint, and add plaintiff Edward T. Custard to bring the suit into a nationwide pool of such suits. The motion was granted.

Avis filed a motion to dismiss under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615), arguing that plaintiffs have no valid claim and, therefore, could not represent the class.

After a hearing on Avis’ motion, the trial court held that the statement “CDW IS NOT INSURANCE” was not a misrepresentation because CDW was a waiver and therefore the printed language was a true statement. The court also found no facts to support plaintiffs’ contention that Avis had a duty to inform them of the possibility of coverage under other insurance policies they already possessed. The court granted Avis’ motion to dismiss.

Avis then moved under section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) for an award of sanctions against plaintiffs’ counsel on the ground that the complaint was neither well grounded in fact or existing law, nor a good-faith argument for change in existing law. The trial court denied this motion.

Plaintiffs appeal from the trial court’s dismissal of their claim against Avis, and Avis appeals the trial court’s denial of its motion for sanctions against plaintiffs’ counsel. The issues presented in this appeal are whether the CDW contained in the car rental agreement was insurance; whether Avis breached a duty to its customers by not informing them that the CDW might be duplicative of coverage they might already have; and whether the plaintiffs should have been sanctioned under section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) because the trial court dismissed their complaint.

I. PLAINTIFFS’ ARGUMENT AGAINST AVIS

Plaintiffs argue that Avis committed common-law fraud and violated the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Uniform Deceptive Trade Practices Act by offering CDWs to persons renting cars from it without informing them that their own insurance or other coverage might contain such protection and by stating that a CDW was not insurance.

The elements of fraud at common law are that the accused party made false representation of a material fact either knowing or believing it to be false or with reckless disregard for the truth of it, that the misrepresentation was made for the purpose of inducing the plaintiff to act and that the plaintiff reasonably believed the misrepresentation and relied upon it to his detriment. Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 249, 483 N.E.2d 1263, 1266; Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 247, 511 N.E.2d 1330, 1335-36.

Plaintiffs contend that Avis misrepresented the nature of the CDW by indicating that it was not insurance. We agree with the trial court that this is not a misrepresentation, but a true statement of fact because the car rental agreement clearly stated that the CDW was a waiver.

Renting a car creates a bailment between the leasing company (bailor) and the customer (bailee). (Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 277, 274 N.E.2d 178, 181-82.) Generally, a bailee is responsible for any injury to the bailed property. (Mueller v. Soffer (1987), 160 Ill. App. 3d 699, 704, 513 N.E.2d 1198, 1201.) Thus, the customer would be responsible for damage to the rented vehicle. Hertz Corp. v. Corcoran (1987), 137 Misc. 2d 403, 405, 520 N.Y.S.2d 700, 701.

However, when the customer (bailee) selects the CDW, responsibility for damage to the car returns to the leasing company (bailor). This is a change in the contract of bailment. The parties to a contract may agree to any terms they choose as long as the agreement is not contrary to public policy.

Similar results have been reached in other jurisdictions. (People v. Dollar Rent-A-Car Systems (1989), 211 Cal. App. 3d 119, 131, 259 Cal. Rptr. 191, 197 (statements in the car rental agreement that the CDW was insurance were found misleading or deceptive, and in violation of insurance statutes); Truta v. Avis Rent A Car System, Inc. (1987), 193 Cal. App. 3d 802, 815-16, 238 Cal. Rptr. 806, 813-14 (statements that the CDW was not insurance are not misrepresentations because the transaction is one of automobile rental, not insurance); Hertz Corp. v. Corcoran (1987), 137 Misc. 2d 403, 405, 520 N.Y.S.2d 700, 701 (“waiver” does not mean “insurance”; to hold otherwise would ignore the plain and ordinary meaning of the words).) In Davis v. M.L.G. Corp. (Colo. 1986), 712 P.2d 985, the court specified that “[ljeasing a vehicle from a car rental agency creates a bailment contract for the mutual benefit of the parties. [Citations.] The general rule is that the bailee/lessee is liable to the bailor/lessor for any damage to the loaned vehicle caused by the bailee/lessee’s fault or negligence. [Citations.] However, the parties are free to alter their common law obligations by contract, provided their agreement does not contravene public policy or violate a statute. [Citations.]” Davis, 712 P.2d at 987-88.

The car rental agreement at issue here provides, in pertinent part:

“Damage to the car. If I accept CDW my responsibility for accidental collision or upset damage will only be the amount shown in Box 42 on the other side of this agreement. If I don’t accept CDW should the car be damaged beyond repair I’ll pay you for all damage to it up to a maximum of the prevailing retail value of the car before it was damaged *** regardless of who is at fault. ***
Collision Damage Waiver Fee. *** This is not insurance.”

By its express terms the CDW exempted the customer who accepted this option from any exposure for liability for damages to the vehicle beyond the agreement limits. The CDW option clearly was not an agreement to insure. It was instead the lessor’s relinquishment of its right to recover from the customer for damages to the rented vehicle.

The Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.) was enacted to protect consumers from “[ujnfair methods of competition and unfair or deceptive acts or practices *** in the conduct of any trade or commerce.” (Ill. Rev. Stat. 1987, ch. 1211/2, par. 262.) Plaintiffs contend that Avis violated the Illinois Consumer Fraud and Deceptive Business Practices Act by stating that the CDW was not insurance and by failing to inform customers that their automobile insurance might include coverage similar to the CDW. Since we have found that plaintiffs’ first allegation is incorrect, we discuss only the second allegation here.

Plaintiffs contend that Avis had a duty to inform customers that their existing automobile insurance policies, or other coverage such as that offered by the AAA Motor Club (AAA) or credit card companies, may include coverage similar to CDW for vehicles rented by the customer.

While the Illinois Consumer Fraud and Deceptive Business Practices Act is to be broadly construed to protect and aid consumers (American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 257, 361 N.E.2d 1370, 1374), our agreement with plaintiffs’ contention that Avis had such a duty to inform would place an undue burden upon Avis and other automobile leasing companies. Plaintiffs’ pleadings provide no factual support for their bald statement that Avis possesses such special knowledge that it should be bound by the duty to inform its customers about the details of their existing insurance or other coverage. In addition, it has long been law in Illinois that an insured has a duty to read and know the contents of his insurance policy. Capps v. National Union Fire Insurance Co. (1925), 318 Ill. 350, 353, 149 N.E. 247, 249; Floral Consultants, Ltd. v. Hanover Insurance Co. (1984), 128 Ill. App. 3d 173, 178, 470 N.E.2d 527, 531.

Plaintiffs’ contention that Avis had such a duty would also charge Avis with responsibility for advising customers of the meaning of the terms of various insurance policies, AAA coverage, and credit card coverage. This court has held that an insurance company is not responsible for informing customers about coverage available from other insurance companies or credit card companies. (Fineman v. Citicorp (1985), 137 Ill. App. 3d 1035, 1042, 485 N.E.2d 591, 595.) We find this rule is clearly applicable here.

For all of these reasons, we conclude that Avis has not violated the Illinois Consumer Fraud and Deceptive Business Practices Act by stating that CDW was not insurance, nor has it done so by failing to inform customers of the possibility that their insurance, AAA membership or credit card might already provide the customer with similar coverage.

Plaintiffs also argue that Avis violated the Illinois Uniform Deceptive Trade Practices Act by representing that the CDW had a use or benefit which it did not have (Ill. Rev. Stat. 1987, ch. 1211/2, par. 312(5)) and that it “engage[d] in *** other conduct which similarly create[d] a likelihood of confusion or of misunderstanding” (Ill. Rev. Stat. 1987, ch. 1211/2, par. 312(12)).

As already has been shown, the CDW has a very real use or benefit because it transfers liability for damage to the automobile (the bailed property) from the customer (bailee) to the leasing company (bailor). Thus, this argument fails.

It should be noted that the Illinois Uniform Deceptive Trade Practices Act was enacted to prohibit unfair competition and was not intended to be a consumer protection statute. (See Ill. Ann. Stat., ch. 1211/2, par. 311, Prefatory Illinois Notes, at 241 (Smith-Hurd Supp. 1989).) The acts which the statute means to curtail are “[deceptive conduct constituting unreasonable interference with another’s promotion and conduct of business.” (See Ill. Ann. Stat., ch. 1211/2, par. 311, Prefatory Note of National Conference of Commissioners on Uniform State Laws, at 243 (Smith-Hurd Supp. 1989).) “Consumer” is not included in the definitions for the Illinois Uniform Deceptive Trade Practices Act as it is in those for the Illinois Consumer Fraud and Deceptive Business Practices Act. Ill. Rev. Stat. 1987, ch. 1211/2, pars. 311, 261.

Plaintiffs have no basis for bringing suit against Avis under the Illinois Uniform Deceptive Trade Practices Act.

II. AVIS’ ARGUMENT AGAINST PLAINTIFFS

Avis asked the trial court to impose sanctions against plaintiffs under section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) and appeals the trial court’s denial of this motion.

Section 2 — 611 states in pertinent part:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

Because section 2 — 611 is penal in nature, it must be strictly construed (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 833, 525 N.E.2d 995, 997), and the moving party bears the burden of proof. (Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 193, 500 N.E.2d 589, 592.) The trial court’s decision should be given great weight and will not be overturned on review unless it is contrary to the great weight of the evidence. (Mari v. Westinghouse Broadcasting Co. (1989), 179 Ill. App. 3d 321, 322, 534 N.E.2d 526, 527.) The fact that the plaintiffs do not prevail is not prima facie evidence that their complaint was entirely without foundation in the law. Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 986, 531 N.E.2d 1018, 1025.

It has been held that to support the granting of sanctions, the pleadings must not only be untrue and made without reasonable cause, but must relate to facts and not to conclusions of law. La Salle National Bank v. Kissane (1987), 163 Ill. App. 3d 534, 542, 516 N.E.2d 790, 795.

In our case the issue posed was the legal effect of the express language of Avis’ car rental agreement. Plaintiffs urge the court to interpret contract provisions, and while we have found that plaintiffs do not prevail, it cannot be said that plaintiffs’ complaint was not a good-faith argument for the extension, modification, or reversal of existing law. For these reasons we find the trial court did not err in not imposing sanctions against plaintiffs.

Avis also argues that new Illinois Supreme Court Rule 137, which became effective as this appeal on the issue of sanctions was pending, should apply to this case. (See June 28, 1989, Official Reports Advance Sheet No. 13 (eff. Aug. 1, 1989), 134 Ill. 2d R. 137.) Rule 137 imposes a duty on the pleader and his attorney identical to the duty described in section 2 — 611, which requires the pleader and his attorney to affirm that to the best of their knowledge and after reasonable inquiry the allegations of the pleading are well grounded in fact and that the action is warranted under existing law or that the pleading is a good-faith argument for extension, modification, or reversal of existing law and is not interposed for any improper purpose. Because we have found no error in the trial court’s refusal to impose sanctions under section 2 — 611, we find no reason to impose sanctions under Rule 137.

For the foregoing reasons, the judgment of the trial court is affirmed both as to the dismissal of the suit and in the denial of sanctions under section 2 — 611.

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


text:
    MICHAEL CLEVERINGA, Plaintiff, v. J.I. CASE COMPANY et al., Defendants (J.I. Case Company, Third-Party Plaintiff-Appellant; Telecom Systems, Inc., et al., Third-Party Defendants-Appellees).
    First District (6th Division)
    No. 1—88—3266
    Opinion filed December 29, 1989.

      Johnson, Cusack & Bell, Ltd., of Chicago (Thomas J. Andrews, Charles P. Rantis, and Thomas H. Fegan, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, David H. Levitt, and Bruce L. Carmen, of counsel), for appellee Telecom Systems, Inc.
    Cassiday, Schade & Gloor, of Chicago (William J. Furey, Julie A. Teuscher, and Michael G. Thomas, of counsel), for appellee McLaughlin Manufacturing Company.
   JUSTICE LaPORTA

delivered the opinion of the court:

This action was brought by plaintiff, Michael Cleveringa, to recover for personal injuries sustained while using a boring machine in his employment by Telecom Systems, Inc. (Telecom). The trial court entered an order which provided that the settlement agreement between plaintiff and third-party defendants-appellees Telecom and McLaughlin Manufacturing Company (McLaughlin) was in good faith and dismissed all pending claims with the exception of plaintiff’s claim against defendant and third-party plaintiff-appellant J.I. Case (Case). Case has appealed the trial court’s order.

In his complaint, plaintiff alleged that Case, the manufacturer of the boring machine, and McLaughlin, the manufacturer of the boring rods, were liable for his injuries under the theory of strict liability. Case and McLaughlin brought third-party actions against Telecom and filed contribution claims against each other. Home Insurance Company (Home), Telecom’s workers’ compensation insurance carrier, was subsequently allowed to intervene. During the proceedings, all parties engaged in settlement negotiations. A settlement agreement was ultimately signed by plaintiff, Telecom, and McLaughlin. In exchange for a $30,000 payment from McLaughlin as well as a cash payment and structured settlement valued at $1.07 million from Telecom, plaintiff released McLaughlin and Telecom from all further liability. Although Case had been involved in the negotiations, Case did not participate in the settlement agreement that was ultimately signed.

At the time of settlement, Home had paid plaintiff approximately $275,000 in workers’ compensation benefits and held a lien in that amount against any settlement or judgment obtained by plaintiff. (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).) The settlement agreement included a term which provided that Home agreed to waive enforcement of its workers’ compensation lien against the parties to the agreement and funds received thereunder. Home expressly reserved the right to enforce its workers’ compensation lien against funds received by plaintiff through settlement with or judgment against Case.

The parties to the settlement agreement brought a motion for a finding that the settlement agreement was in good faith. At the hearing on the motion, the trial court indicated that the reservation of the right to enforce the workers’ compensation lien against funds received from Case was “in the nature of a loan agreement” and stated that the amount of any setoff should be determined after settlement with or judgment against Case. Upon consideration of the arguments of counsel, the trial court found that the settlement agreement was in good faith and dismissed all pending claims, with the exception of the plaintiff’s claim against Case. Case has appealed the trial court’s finding of a good-faith settlement and the dismissal of its claims for contribution against Telecom and McLaughlin.

Case initially claims that the settlement agreement should be set aside because the parties to the agreement acted in bad faith.

Section 2 of the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) provides that a tortfeasor to whom a release or covenant not to sue is given in good faith is discharged from all liability for any contribution to any other tortfeasor. (Ill. Rev. Stat. 1987, ch. 70, pars. 302(c), (d).) In determining whether the parties to a settlement agreement acted in good faith, courts must take into account all of the circumstances surrounding the settlement. Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373; Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 537 N.E.2d 871.

Where there has been a preliminary showing of good faith, a presumption of validity arises in favor of the settlement. (Ruffino, 181 Ill. App. 3d 827, 537 N.E.2d 871; Wasmund v. Metropolitan Sanitary District (1985), 135 Ill. App. 3d 926, 482 N.E.2d 351; Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581.) After a preliminary showing of good faith has been made, the burden shifts to the party opposing the settlement, who must prove by clear and convincing evidence that the settlement is invalid. Ruffino, 181 Ill. App. 3d 827, 537 N.E.2d 871; McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157; O’Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 501 N.E.2d 263; Wasmund, 135 Ill. App. 3d 926, 482 N.E.2d 351; Barreto, 133 Ill. App. 3d 119, 478 N.E.2d 581.

In the instant case, the language of the settlement agreement clearly provided that Home agreed to waive enforcement of its workers’ compensation lien only as to the parties and funds contemplated by the agreement. Home specifically reserved its right to enforce the lien against funds received from Case. Contrary to Case’s assertions, Home never promised and plaintiff never obtained a waiver of enforcement of the lien against funds received from Case. The trial court was involved in the extensive settlement negotiations by the parties. McLaughlin contributed $30,000 in cash, and Telecom contributed cash and a structured settlement with a present value of $1.07 million. Although Case had been involved in the negotiations, it did not participate in the settlement agreement that was ultimately signed. Thus, plaintiff received a total of $1.1 million in exchange for his release of McLaughlin and Telecom from further liability.

The record contains no evidence of collusion or tortious or fraudulent conduct by the parties to the settlement agreement. (See Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) Indeed, Case does not even allege that the agreement resulted from collusion, fraud, or tortious conduct. Rather, Case argues that the settlement was not in good faith and should be set aside merely because Case may be subject to a judgment which is greater than that which Case believed was appropriate for settlement. Such a possibility always exists when parties to litigation contemplate settlement. A party who refuses to settle a case on agreed terms always risks that he will be exposed to enhanced liability by that refusal. This is the essence of settlement negotiations. A party either compromises in return for the certainty of a fixed result, or gambles that he will obtain a more favorable result by submitting the case to a jury. Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 498 N.E.2d 690.

Acceptance of Case’s argument would place Telecom and McLaughlin in an untenable position. Telecom and McLaughlin would be precluded from settling with the plaintiff unless Case also agreed to settle and sanctioned the terms of the agreement. This would defeat the public policy favoring settlements and would allow one party to veto any settlement unless all parties had agreed on their respective liabilities. Ellis v. E.W. Bliss & Co. (1988), 173 Ill. App. 3d 779, 527 N.E.2d 1022; Doellman, 147 Ill. App. 3d 842, 498 N.E.2d 690.

Case also asserts that it could have settled with plaintiff but for Home’s reservation of enforcement of the workers’ compensation lien. As pointed out by Telecom in its brief, this claim is speculative, and the good faith of a settlement is not judged by the obstacles it creates for the nonsettling tortfeasor.

The trial court was aware of and considered all of the circumstances surrounding the settlement agreement. After a full hearing at which each party was represented by counsel, the court determined that the parties to the agreement had acted in good faith. The record reveals no evidence to the contrary, and Case presents none in its briefs. Consequently, the trial court did not abuse its discretion by finding that the settlement agreement was in good faith and by dismissing Case’s contribution claims against Telecom and McLaughlin.

Case also contends that the settlement was in bad faith because the language referring to the workers’ compensation lien amounts to “selective enforcement” of the lien. Relying on Wilson v. The Hoffman Group, Inc. (1989), 131 Ill. 2d 308, Case claims that this portion of the agreement should be read as a complete waiver of the lien and that Case should receive the benefit of a setoff in the amount of the lien. Case’s reliance on Wilson is, however misplaced. In Wilson, the plaintiff obtained a full waiver of enforcement of the workers’ compensation lien. The supreme court ruled that the amount of the lien must be set off in order to preclude a double recovery by the plaintiff and to prevent nonsettling defendants from paying more than their pro rata share of the common liability.

In the case at bar, Home waived enforcement of the lien only against the parties and funds contemplated by the settlement agreement. Home never promised and plaintiff never obtained a waiver of enforcement of the lien against funds received from Case. Consequently, there was no risk of a double recovery by plaintiff or of Case being required to pay more than its pro rata share of the common liability.

In its opening brief, Case asserted that the settlement agreement should be treated as a loan receipt agreement and should be held invalid under the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). We note, however, that this assertion is inconsistent with the argument later presented by Case. Although Case apparently has abandoned this assertion by its failure to present it in the reply brief or at oral argument, we will consider it briefly here.

Loan receipt agreements have been found to exist where the benefit received by the plaintiff must be repaid to the defendant upon settlement with or judgment against a third party. (Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382; Schoonover v. International Harvester Co. (1988), 171 Ill. App. 3d 882, 525 N.E.2d 1041.) Contrary to the argument presented by Case, the settlement agreement here was not a loan receipt agreement. As stated above, the language of the instant agreement clearly indicated that Home agreed to waive enforcement of its workers’ compensation lien only as to the parties and funds contemplated by the agreement. Home specifically reserved its right to enforce the lien against funds received from Case. Plaintiff never obtained a waiver of enforcement of the lien against funds received from Case. Thus, the benefit received by plaintiff, monetary compensation and a waiver of enforcement of the lien against the parties and funds contemplated by the agreement, was to be retained by plaintiff and was not subject to repayment under any circumstance. Because Home never waived its right to enforce the lien against funds received from Case, Home’s election to pursue the lien cannot be construed as a requirement that plaintiff repay a benefit received under the settlement agreement. Consequently, the trial court properly found that the agreement between plaintiff, Telecom, and McLaughlin was not a loan agreement.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and BILANDIC, JJ., concur.


text:
    LEE ZIMMER, Plaintiff-Appellant, v. THE CELOTEX CORPORATION et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3578
    Opinion filed December 29, 1989.
    Robert J. Cooney & Associates, of Chicago (James R. Hopkinson and Kathy Bryne, of counsel), for appellant.

      Williams & Montgomery, of Chicago (James K. Horstman, Barry L. Kroll, Bruce W. Lyon, and Lloyd E. Williams, Jr., of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

This action was brought to recover damages for personal injuries allegedly sustained by plaintiff as a result of his exposure to asbestos-containing insulation products during his employment as a shipfitter in the Brooklyn, New York, and Bayonne, New Jersey, naval shipyards from 1941 to 1944 and from 1946 to 1955. The circuit court granted summary judgment in favor of several defendants based upon the lack of evidence that plaintiff was ever exposed to any asbestos products manufactured, sold, or distributed by the defendants.

Plaintiff appeals the grant of summary judgment in favor of defendants.

The record reveals that plaintiff instituted this action against 13 defendants seeking recovery for personal injuries allegedly sustained as a result of his exposure to the defendants’ asbestos products while he worked as a shipfitter in the naval shipyards in Brooklyn, New York, and in Bayonne, New Jersey, from 1941 to 1944 and from 1946 to 1955. Of the 13 defendants originally named by plaintiff, only Eagle-Picher Industries, Inc. (Eagle-Picher), Fibreboard Corporation (Fibreboard), and Owens-Illinois, Inc. (Owens-Illinois), remain as defendants and are parties to this appeal. Plaintiff’s second amended complaint sought recovery against defendants under theories of negligence and strict product liability. Defendants denied that plaintiff was ever exposed to any of their products and denied liability for his alleged injuries.

During discovery, plaintiff filed his sworn answers to interrogatories propounded by defendants wherein he identified only Johns-Man-ville Sales Corporation as a manufacturer of asbestos products to which he was exposed while employed as a shipfitter. At his deposition, plaintiff indicated that he could not identify the manufacturers of the asbestos products to which he had been exposed, and he specifically stated that he could not recall ever having been exposed to asbestos products manufactured by Fibreboard.

Defendants subsequently moved for summary judgment based upon the plaintiff’s inability to establish actual exposure to any of their products. Plaintiff’s response to defendants’ motion for summary judgment asserted that proof of his exposure to defendants’ products could be shown through the deposition testimony given by Moe Rapchick, Remo Paternoster, Max Morch, and Howard Bauer in unrelated lawsuits involving asbestos claims. Plaintiff asserted that these four men were employed at the Brooklyn and Bayonne shipyards at the same time as plaintiff and worked on some of the same ships as plaintiff. Plaintiff also filed an affidavit and copies of the deposition transcripts of Rapchick, Paternoster, Morch, and Bauer in opposition to defendants’ motion.

In his affidavit, plaintiff stated that he worked at the Brooklyn and Bayonne shipyards from 1941 to 1944 and from 1946 to 1955; that he worked in close proximity to boilermakers, pipefitters, sheet-metal workers, and pipe coverers; and that he specifically recalled working with a man named Moe Rapchick. Plaintiff also indicated that he worked on hundreds of American and British ships, including the New Jersey, the Franklin Delano Roosevelt, the Edison, the Brooklyn, the Philadelphia, the Kearsage, the Bennington, the Murphy, the Saratoga, the Oriskany, the Kearney, the Quincy, the Vincennes, the Missouri, the Arkansas, the Juno, the Atlanta, the Pensacola, the Augusta, the Helena, the Omaha, the Iowa; the CV 31, the South Carolina, the Bon Homme Richard, and the Franklin.

The deposition testimony of Moe Rapchick reflected that he began working at the Brooklyn naval shipyard in March 1941 and left at the end of 1945. During that period he was employed as a sheetmetal worker and recalled working aboard the Iowa, the Missouri, the Kearsage, the Franklin Delano Roosevelt, the South Carolina, the Murphy, and the CV 31. He estimated that the shipyard was about two square miles in size and employed approximately 55,000 people. Rapchick specifically recalled working with or near the asbestos products of Johns-Manville, Eagle-Picher, Owens-Illinois, Fibreboard, Celotex, Armstrong and Keene, but could not state that a particular product was used in a particular month on a particular ship. Rapchick stated further that the asbestos products were used all over the ships and were shared by different tradesmen, including shipfitters. The workers were covered with insulation as it drifted from the tradesmen working above and next to them.

The deposition testimony of Remo Paternoster reflected that he worked as a boilermaker in the Brooklyn naval shipyard from 1933 to 1946, from 1948 to 1949, and from 1950 to 1966. He remembered working aboard the Iowa, the Missouri, the Bon Homme Richard, and the Oriskany. While working on these ships, Paternoster worked with other trades, including shipfitters, in areas that were filled with asbestos shavings and dust. He recalled working with or near the asbestos products of Owens-Corning, Eagle-Picher, and Celotex.

The deposition testimony of Max Morch reflected that he worked as a pipefitter and installed asbestos insulation on ships in the Brooklyn naval shipyard from 1942 to 1946. Morch recalled working aboard the Iowa, the Missouri, the Franklin Delano Roosevelt, and the Bon Homme Richard and remembered seeing the products of Fibreboard, Eagle-Picher, Keene, Celotex, and GAF.

The deposition testimony of Howard Bauer reflected that he worked in the Brooklyn naval shipyard from 1943 to 1944 and from 1946 to 1966. As a sheetmetal worker, Bauer installed insulation on ships and recalled seeing the products of Eagle-Picher, Armstrong, and Owens-Illinois during the entire period he worked at the shipyard.

Defendants filed a reply to plaintiff's response to their motion for summary judgment, and following a hearing on the motion, the trial court granted summary judgment in favor of defendants. In ruling on the motion, the trial judge indicated that although there was little doubt that plaintiff had been exposed to asbestos, he had not met certain minimum standards of proof required to prevent fraud in these types of cases. Plaintiff has appealed the trial court’s order.

Summary judgment is proper where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) In a products liability action the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401, 405-06, 256 N.E.2d 6, 8, cert. denied (1970), 398 U.S. 959, 26 L. Ed. 2d 544, 90 S. Ct. 2173.) Although these elements may be proven by direct or circumstantial evidence, liability cannot be based on mere speculation, guess, or conjecture. Thus, where circumstantial evidence is relied upon, the circumstances must justify an inference of probability as distinguished from mere possibility. Naden v. Celotex Corp. (1989), 190 Ill. App. 3d 410, 415; Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 505.

In products liability cases predicated upon the plaintiff’s alleged exposure to asbestos-containing products, it has been held that the plaintiff must show that a particular defendant’s product was used at the jobsite and that the plaintiff was in proximity to that product at the time it was being used. (Blackston v. Shook & Fletcher Insulation Co. (11th Cir. 1985), 764 F.2d 1480, 1481-82; Odum v. Celotex Corp. (11th Cir. 1985), 764 F.2d 1486, 1488.) The plaintiff’s failure to identify any asbestos product of the defendant to which the plaintiff had been exposed provides a sufficient basis for the trial court to grant defendant’s motion for summary judgment. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322, 91 L. Ed. 2d 265, 273, 106 S. Ct. 2548, 2552-53; Naden v. Celotex Corp. (1989), 190 Ill. App. 3d 410, 414; Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 528-29, 541 N.E.2d 805, 808.

Plaintiff contends that although he was unable to identify the defendants or their products in his answers to interrogatories or during his deposition, the facts presented in his affidavit and in the deposition transcripts of Rapchick, Paternoster, Morch, and Bauer create the inference that he was exposed to the defendants’ products. He asserts that this is sufficient to establish a genuine issue of material fact. We disagree.

The affidavit and deposition testimony before the court reflected that plaintiff worked in the shipyards in both Brooklyn, New York, and in Bayonne, New Jersey, from 1941 to 1944 and from 1946 to 1955. Plaintiff worked on hundreds of British and American ships, including some of those identified by Rapchick, Paternoster, Morch, and Bauer and recalled working with a man named Moe Rapchick. Although Rapchick, Paternoster, Morch, and Bauer were able to identify the defendants’ products, they could not state that a particular product was used in a particular month on a particular ship. There was no evidence indicating how long these ships were in the shipyards or that these ships were in port only once. Moreover, there was no evidence that plaintiff worked on these ships at the exact same time as the other four men or in close proximity to them as the defendants’ products were being used.

We believe that the evidence before the trial court was insufficient to create the inference that plaintiff was exposed to defendants’ products. Consequently, the trial court was correct in finding that there was no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. In making his ruling, the trial judge stated that the plaintiff had not met the minimum standards of proof required to prevent fraud in these types of cases. Although there is no evidence of fraud in the instant case, we agree that summary judgment is appropriate where the plaintiff has failed to present evidence of exposure to a particular defendant’s product. If such a case were sent to a jury, the verdict would necessarily be based upon mere speculation, guess, or conjecture.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE BUCKLEY

text:
    BETTY JACKSON, a Minor, by her Next Best Friend, Barbara Jackson, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—3029
    Opinion filed December 29, 1989.

      Stephen M. Passen, Ltd., of Chicago (Stephen M. Passen and Jay Paul Deratany, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold, of counsel), for appellees Chicago Board of Education and Bertha Easterling.
    Witwer, Burlage, Poltrock & Giampietro, of Chicago (Wayne B. Giampietro and James B. Dykehouse, of counsel), for appellee Ruby L. Rhodes.
    No brief filed for other appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Betty Jackson (plaintiff) brought an action in the circuit court of Cook County against defendants. Chicago Board of Education (the Board), Ruby L. Rhodes, Bertha Easterling, and Keith Washington for personal injury she sustained in an educably mentally handicapped (EMH) classroom in February 1982, when she was struck by a chalkboard clip thrown by defendant Washington. The circuit court granted, summary judgment in favor of defendants Rhodes, the Board and Easterling. Plaintiff appeals from this judgment, contending that the circuit court erred in applying a willful and wanton misconduct standard to her case and, alternatively, that the court improperly granted summary judgment under the willful and wanton standard. We affirm.

The following deposition testimony was presented to the circuit court on the summary judgment motion. Rhodes testified that on February 24, 1982, she taught 14 children, ages ranging from 12 to 15 years, in an EMH class at Bryn Mawr Elementary School in Chicago, Illinois. On her 20-minute scheduled break that day, she left the classroom at 1:12 p.m. to be attended by Easterling, a teacher’s aide who simultaneously supervised a “regular” second-grade class during this recess period. Rhodes returned to the classroom by 1:32 p.m.

Easterling testified that during the recess period, as part of her regular duties, she went back and forth between the EMH classroom and the regular second-grade classroom, leaving each class unattended for a minute at a time. While she monitored the “regular” second-grade classroom, she heard yelling in the EMH classroom. She then returned to the EMH classroom.

Plaintiff testified that Easterling did not enter the room during the recess break. The children in the classroom were acting “wild,” sitting on the desks, standing at the back of the room, and play-fighting. While she was in the back of the room, someone called her name. When she turned around, she was hit in the eye by a chalkboard clip.

Washington testified that Rhodes was gone a short time when he began tossing a “paper clip” in the air and catching it. He mistakenly threw the clip backwards over his shoulder. He was not aware that it hit plaintiff until he heard her holler. He further testified that 20 minutes elapsed from the time of the accident until Rhodes returned, and no adult was present during the recess period.

Donnell Jackson, another student in the EMH class, testified that Rhodes had been gone approximately one-half hour before the accident occurred. He observed a teacher’s aide appear in the doorway one time during Rhodes’ absence, but he did not know if the aide was present at other times.

Plaintiff testified that Washington had never hurt her before, and “he wasn’t that type of person.” He was a “wild” person, meaning that he played with the other boys, was macho, and was like any other boy. He was not a bully or a troublemaker. Rhodes similarly testified that Washington was a well-mannered boy with no previous behavioral problems, and Easterling stated she had no knowledge of any behavioral problems with Washington and had never noticed any prior unusual conduct in the EMH class.

Rozanne Deutsch, the school psychologist, testified that children are placed in an EMH class because of low “IQ” and that children with behavioral disorders are placed in a separate class for behavioral disorders. Washington was a 15-year-old boy functioning at a first- or second-grade level. None of Washington’s school records indicated any behavior disorder or prior aggressive behavior.

Plaintiff introduced an affidavit of Dr. Patricia Shafer, a psychologist, wherein Shafer stated her opinion that a mentally handicapped 15-year-old child, functioning educationally at a seven-year-old child’s level, without the presence of an authority figure is “more likely to act on his immediate impulses resulting in unintended consequences.” She further stated her belief that “a class of mentally handicapped children, functioning at the mental age of 7 or 8, should not be left unattended for any period of time.”

In granting summary judgment in favor of defendants, the circuit court applied the willful and wanton standard as set forth in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705. In Kobylanski, our supreme court interpreted the Illinois School Code (School Code) (Ill. Rev. Stat. 1987, ch. 122, pars. 24 — 24, 34 — 84a) as conferring upon teachers and other certificated educational employees in disciplinary and nondisciplinary supervisional matters the status of in loco parentis, thereby extending to them the parental immunity from ordinary negligent conduct and requiring proof of willful and wanton misconduct as a prerequisite to imposition of liability.

On appeal, plaintiff initially contends that the circuit court erred in applying a willful and wanton misconduct standard rather than an ordinary negligence standard to her case. Defendants Easter-ling and the Board object to our consideration of this issue on the ground that plaintiff’s pleadings allege only willful and wanton misconduct and not ordinary negligent conduct. The only issue properly preserved for appeal, they argue, is whether the circuit court correctly granted summary judgment based upon the proof relating to the alleged willful and wanton misconduct. Because we have discretionary authority under Supreme Court Rule 366(a)(1) (107 Ill. 2d R. 366(a)(1)) to “exercise all or any of the powers of amendment of the circuit court” on just terms and because no prejudice will result to defendants since the issue was repeatedly argued in the circuit court, we will consider plaintiff’s contention.

Plaintiff first argues that Illinois case law and legislative provisions demonstrate that the limited immunity afforded teachers by the School Code is not applicable to an EMH classroom setting. We disagree.

To support her contention, plaintiff cites a line of cases subsequent to Kobylanski which have found the School Code immunity inapplicable in certain contexts. In the first of these cases, Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, the Illinois Supreme Court expounded on the scope of the School Code immunity. The court stated that the immunity extends only to matters arising out of the “teacher-student relationship in matters relating to the teacher’s personal supervision and control of the conduct or physical movement of a student.” (71 Ill. 2d at 52, 373 N.E.2d at 1326.) It explained that the statutorily granted immunity reflects a legislative determination that an orderly and conducive learning atmosphere requires between teacher and student the same disciplinary and supervisory authority as exists between parent and child and that this relationship would be seriously jeopardized if teachers and school districts were amenable to ordinary negligence actions for accidents occurring in the course of the exercise of such authority. Applying this reasoning to the case before it, the supreme court concluded that the School Code immunity did not apply where the alleged negligence was in connection with the school’s furnishing a defective football helmet to students because the conduct involved a function separate from the above teacher-student relationship and policy considerations. Gerrity, 71 Ill. 2d at 51-52, 373 N.E.2d at 1324-26.

The other cases plaintiff cites similarly involve school functions of the schools separate from the discipline and supervision associated with the teacher-student relationship. In O’Brien v. Township High School District 214 (1979), 73 Ill. App. 3d 618, 392 N.E.2d 615, rev’d on other grounds (1980), 83 Ill. 2d 462, a student alleged that he suffered personal injuries when the defendants provided him medical treatment. The primary allegation in Nielsen v. Community Unit School District No. 3 (1980), 90 Ill. App. 3d 243, 412 N.E.2d 1177, where a student was injured when a container exploded during a physics experiment, was that the school should have known that the container was a defective and dangerous instrumentality. In Griffis v. Board of Education, District 122, Oak Lawn (1979), 72 Ill. App. 3d 784, 391 N.E.2d 451, a mentally handicapped student, who was injured while working in the school’s faculty lounge, alleged that the school was negligent in allowing teachers to smoke and leave cigarettes burning in close proximity to a flammable liquid.

As the Gerrity line of cases focus on the school’s function in determining the immunity under the School Code, the cases do not suggest a distinction based upon the type of students or classroom involved. Thus, similar to the holdings in numerous other appellate court cases involving the improper supervision of students, we find Kobylanski controlling. See Gammon v. Edwardsville Community Unit School District No. 7 (1980), 82 Ill. App. 3d 586, 403 N.E.2d 43; Cipolla v. Bloom Township High School District No. 206 (1979), 69 Ill. App. 3d 434, 388 N.E.2d 31; Clay v. Chicago Board of Education (1974), 22 Ill. App. 3d 437, 318 N.E.2d 153; Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, 283 N.E.2d 899.

Plaintiff next argues that the School Code immunity is inapplicable to Easterling’s conduct since she is not a teacher or certificated employee. Easterling is not an individual who falls within the class of persons entitled to immunity from suit for ordinary negligence under the School Code because she is not a teacher performing the function of classroom instruction. (See Edmonson v. Chicago Board of Education (1978), 62 Ill. App. 3d 211, 379 N.E.2d 27.) Defendants Easterling and the Board correctly point out, however, that they are protected from any ordinary negligent conduct by Easterling under the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1—101 et seq.). Section 3—108 of this act provides:

“[N]either a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.” (Ill. Rev. Stat. 1987, ch. 85, par. 3—108.)

Notwithstanding this statutory immunity, plaintiff urges that we find defendants have waived this defense by failing to raise it in the circuit court.

The rule that a defense not raised in the trial court is regarded as waived and may not be raised for the first time in a reviewing court is a rule only insofar as an appellant is concerned; an appellee may urge any point in support of judgment on appeal, so long as a factual basis for such point was before the trial court. (Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285.) Because a clear factual basis exists to support a rejection of the ordinary negligence standard based upon the Tort Immunity Act, the circuit court’s application of the willful and wanton misconduct standard as to Easterling and the Board is sustained on this ground.

In her final argument that the circuit court erred in applying a willful and wanton misconduct standard, plaintiff posits another theory of negligence, namely, that the Board was directly negligent in assigning or entrusting an EMH classroom to a noncertified teacher or to a person not under the direct supervision of a certified teacher in violation of statutory and administrative regulations. Under this negligence theory, she argues that the Board’s actions would not fall under the supervisional activities which are granted immunity under the School Code and the Tort Immunity Act. The Board objects to our consideration of this issue because it is a theory not presented by plaintiff in the circuit court. See Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588.

The record demonstrates that the theory before the circuit court was that the Board was liable for the conduct of its teacher and teacher’s aide in not properly supervising the EMH classroom. The pleadings do not even remotely suggest a negligence theory based upon the Board’s assigning an unqualified person to an EMH classroom. While plaintiff argues that she adequately raised the theory in the circuit court, she refers to only one paragraph in her written response to defendant’s summary judgment motion in which she states “[cjlearly a jury could properly find the Board liable for violating their statutory duty to provide a properly trained professional to supervise mentally handicapped children.” This paragraph is enveloped in her lengthy argument as to her pleaded theory of misconduct. Defendants did not have an adequate opportunity to defend against this theory in the circuit court. Under these circumstances, we find that this theory of negligence is not properly before us.

We turn now to plaintiff’s alternative contention that the circuit court erred in granting summary judgment to defendants under the willful and wanton misconduct standard. To establish that a person’s conduct has been willful and wanton, a plaintiff must show that the act was “committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.” (Lynch v. Board of Education of Collinsville Community Unit School District No. 10 (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447, 457; Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293, 300.) Defendants argue that even accepting the disputed fact that the EMH students were left without any supervision during the 20- or 30-min-ute recess period, Illinois case law demonstrates that plaintiff did not present sufficient evidence to create a factual question as to whether defendants had the requisite knowledge to meet the above standard.

Illinois courts have consistently held that a teacher’s mere act of leaving children unsupervised will not be sufficient to establish willful and wanton misconduct. (Mancha, 5 Ill. App. 3d 699, 283 N.E.2d 899; Cipolla, 69 Ill. App. 3d 434, 388 N.E.2d 31; Pomrehn v. Crete-Monee High School District (1981), 101 Ill. App. 3d 331, 427 N.E.2d 1387.) Rather, a plaintiff must show that the teacher or school was aware or should have known that the absence of supervision posed a high probability of serious harm or an unreasonable risk of harm. (Pomrehn, 101 Ill. App. 3d at 335, 427 N.E.2d at 1390; Mancha, 5 Ill. App. 3d at 703, 283 N.E.2d at 903.) A plaintiff’s general allegation that a teacher or school should have known the harm would occur without adult supervision is insufficient to satisfy this standard. See Holsapple v. Case Community Unit School District C-1 (1987), 157 Ill. App. 3d 391, 510 N.E.2d 499.

The specific allegations necessary to raise a jury question as to whether a teacher or school’s lack of supervision is willful and wanton is best illustrated by the following cases. In Gammon v. Edwardsville Community Unit School District No. 7 (1980), 82 Ill. App. 3d 586, 403 N.E.2d 43, where a student was injured when a classmate struck him in the eye, a jury question was raised by the fact that the guidance counselor was previously warned of the student’s threats to plaintiff’s safety but failed to supervise the students. In Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877, summary judgment was improperly granted where the plaintiff had alleged that the teacher left students unattended without directing them to wear goggles during a dangerous experiment involving the hammering of metal.

The record here discloses no evidence of any knowledge by the school or its employees as to prior behavioral problems with Keith Washington. To the contrary, Rhodes testified that Washington was well-mannered and had never given her problems before. The school psychologist stated that Washington’s school records gave no indication of behavioral disorders or problems with aggressive behavior. Finally, plaintiff testified that Washington was not a troublemaker.

The evidence is also insufficient to create a factual question as to whether defendants should have known of a high probability of impending danger because the children were EMH students. No evidence was presented that this particular EMH class contained children with behavioral problems or that EMH students by their nature have behavioral disorders. The school psychologist testified that children are placed in the EMH program for academic deficiencies, not behavioral problems. Plaintiff presented only a psychologist’s statement that a mentally handicapped child of age 15, functioning at a seven-year-old level, is “more likely to act on his immediate impulses, resulting in unintended consequences.” Such a generalized assertion is insufficient under Illinois case law to create a factual question as to whether defendants’ conduct in leaving the EMH class unattended for a 20- or 30-minute recess period was willful and wanton misconduct.

Accordingly, we affirm the circuit court’s order entering summary judgment in favor of defendants Rhodes, the Board and Easterling.

Affirmed.

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