author: JUSTICE GOLDENHERSH

text:
    JASON LAMKIN, a Minor, by his Mother and Next Friend, Carol A. Lamkin, et al., Plaintiffs-Appellees, v. STAN TOWNER et al., Defendants-Appellants.—DUSTIN TROY PACE, a Minor, by his Mother and Next Friend, Robin R. Pace, et al., Plaintiffs-Appellees, v. STAN TOWNER et al., Defendants-Appellants.
    Fifth District
    Nos. 5—88—0088, 5—88—0094 cons.
    Opinion filed October 13, 1989.

      Stephen W. Thomson and Charles C. Compton, both of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, P.C., of Edwardsville, for appellant Stan Towner.
    Christopher B. Hunter, of Farrell & Long, P.C., of Godfrey, for appellant Carroll Supply & Service.
    Harold A. Donovan and Clark D. Smith, both of Donovan, Rose, Nester & Szewczyk, P.C., of Belleville, for appellant Gallatin Aluminum Products, Inc.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Michael A. Lawder, and Bruce L. Carmen, of counsel), for appellants Joseph Dooling and Kenneth Vanek.
    Robert D. Larson, of Smith, Larson, Pitts, Walters & Metz, Ltd., of East Alton, and Lewis E. Mallott, of Campbell & Mallott, of Godfrey, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Stan Towner, Pat Dooling (also referred to in the briefs as Pat Dooley, Joe Dooling and Joseph Dooling), Kenneth Vanek, Carroll Supply & Service, and Gallatin Aluminum Products, Inc., appeal from orders of the circuit court of Madison County denying defendants’ motions for summary judgment. In this cause, all defendants raise the issue whether the trial court erred in denying their motions for summary judgment.

On March 2, 1983, plaintiff Jason Lamkin, a two-year-old, lived with his mother, Carol A. Lamkin, in an apartment located at 911 East Fifth Street in Alton. On that date, plaintiff Carol A. Lamkin was vacuuming Jason’s bedroom on the second floor and had moved Jason’s bed underneath the window to vacuum the area where Jason’s bed was usually positioned. She had opened the window before vacuuming, but a screen was still in place and covering the space. This was the first time she had ever opened this window. She did not notice anything wrong with the screen in the bedroom, although she had trouble with other screens in the apartment. In her deposition she stated that the screen in her bedroom window was bent and had a tendency to fall out. She never reported this to the landlord.

After Carol moved the bed, Jason stood on top of his bed and was looking out the window at another child who was playing with his toys on the ground below. Carol explained to Jason that he should share his toys, and she sent him into the hallway to play. Carol continued to vacuum. When she turned off the vacuum cleaner, she heard a grunting noise and turned to see Jason’s feet going out the window. Jason fell out the window and struck his head on the paved area below. He suffered numerous injuries which are not detailed in the discovery which has been supplied.

On September 1, 1982, plaintiff Dustin Troy Pace, age 18 months, lived with his mother, Robin R. Pace, in an apartment located at 911 East Fifth Street in Alton. On that date, plaintiff Robin R. Pace was on the first floor of her two-story apartment washing her hair. Dustin was also downstairs at a window watching people at a neighbor’s party. Dustin’s brother was downstairs watching television. Robin went upstairs to dry her hair. When she turned off the hair dryer, she heard something hit. She ran into Dustin’s bedroom and saw the screen was off the window. She ran downstairs and outside and found Dustin lying on the ground below. He, too, suffered injuries which have not been detailed in the provided discovery. Earlier in the day, she had opened the window in question and the screen was in place. She had not experienced any difficulty with the window or the screen in the past. It does not appear that anyone actually witnessed the fall.

According to the building’s owner, Stanley Towner, the windows in the building at 911 East Fifth Street in Alton are all the same, with the exception of the bathroom windows, which are smaller. The frames are aluminum with a white baked-on finish. The top half of the window is fixed. Only the bottom goes up and down. The screen is also fixed. It does not slide up and down and only covers the bottom half of the window. There is a shallow channel area at the base of the window into which a screen fits. There are also some triangular clips with a spring that helps keep the window anchored in the bottom ledge.

Stan Towner bought the building from Kenneth Vanek and Joe Dooling on October 15, 1982. Vanek and Dooling had renovated the building at 911 E. Fifth Street in Alton. As part of the renovation, defendant Dooling had ordered window units, including screens, from Dale Carroll. The windows were ordered according to Dooling’s specifications. Upon arrival from the manufacturer, the window units were inspected by Dale Carroll and no damage was found. Dale Carroll stated in his deposition that no alterations were made on the window units. They were delivered to Dooling as packaged by the manufacturer.

On February 28, 1985, Jason Lamkin, a minor, by his mother and next friend, Carol A. Lamkin, and Carol Lamkin filed a complaint alleging that on March' 2, 1983, Jason sustained personal injury after falling from the second-story window in which the window screen fell out of a rental apartment complex. Plaintiffs named as defendants the owner of the apartment complex, Stan Towner; the rehabilitators of the apartment who put the windows and screens in place, Pat Dooling and Kenneth Vanek; the retailer of the windows and screens, Carroll Supply & Service; and the manufacturer of the window units, Gallatin Aluminum Products, Inc. Also, on February 28, 1985, plaintiffs Dustin Troy Pace, a minor, by his mother and next friend, Robin R. Pace, and Robin R. Pace filed a complaint alleging that on September 1, 1982, Dustin sustained personal injury after falling from the second-story window in which the screen fell out of a rental apartment complex.

Both plaintiffs allege that defendants Stan Towner and Pat Dooling and Kenneth Vanek, a partnership, were negligent in one or.more of the following respects: (a) failed to securely and firmly attach the window screens to the window frames of the apartment building, (b) failed to warn plaintiffs’ mothers with regard to the fragile condition of the window screens, and (c) failed to repair or replace the window screens when defendant knew, or should have known, of their fragile nature. With respect to defendants Dooling and Vanek, a partnership, plaintiffs additionally allege that defendants were negligent in that they (d) failed to locate the windows a reasonable and safe distance above the floor level within the apartments.

Both plaintiffs also allege that defendants Carroll Supply & Service and Gallatin Aluminum Products, Inc., were negligent in that the windows and screens were unreasonably dangerous and defective because (a) the screens readily popped out from the frames, (b) the screens were not securely fastened within tracks on the windows, and (c) there were no secure latches, locks, or other devices to fix the window screens to the frames. As a proximate result of one or more of these negligent acts or omissions by defendants, plaintiffs sustained severe and permanent injuries.

Defendants all filed answers to plaintiffs’ complaints. Defendants then filed motions for summary judgment based on the absence of any legal duty on their part on which liability could be predicated. Additionally, Carroll Supply & Service filed a motion to dismiss pursuant to section 2 — 621 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621). The trial court denied defendants’ motions for summary judgment and the motion to dismiss filed by defendant Carroll Supply & Service. On November 18, 1987, defendants filed a motion pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The trial court granted defendants’ motion. Both cases have been consolidated for purposes of appeal.

Defendants’ only issue on appeal is whether the trial court erred in denying defendants’ motions for summary judgment. Defendants specifically argue that in Illinois, a window screen is not required or intended to keep persons from falling out the window in which it was placed. Window screens provide only a way for air and light to enter a room and to keep insects out. Since Illinois courts have consistently held there is no such duty on the part of a landlord to maintain a window screen which will keep minors from falling out, there can be no legal liability on the part of the landlord, the builder, the retailer, or the manufacturer of the screens for negligence for failure to provide a child-proof screen. Defendants essentially rely on the same cases to support their proposition. (Laster v. Chicago Housing Authority (1982), 104 Ill. App. 3d 540, 432 N.E.2d 1185; Scheffler v. Ringhoffer (1966), 67 Ill. App. 2d 222, 214 N.E.2d 575; Gasquoine v. Bornstein (1956), 10 Ill. App. 2d 423, 135 N.E.2d 121; Rogers v. Sins (1953), 349 Ill. App. 353, 110 N.E.2d 643; Crawford v. Orner & Shayne, Inc. (1947), 331 Ill. App. 568, 73 N.E. 615.) Plaintiffs respond that defendants’ proposition that screens serve the sole purpose of keeping insects out and, therefore, there is no liability when a screen fails causing a child to fall through a window opening is antiquated and fails under modern tort law. The evolution of technology has been such that there is the potential for a child-proof screen. A jury should be allowed to hear evidence of negligence. We agree.

The standards governing whether a summary judgment should be granted are set forth in section 2 — 1005(c) of the Code of Civil Procedure, which states in pertinent part:

“The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).)

Illinois courts have repeatedly emphasized that the purpose of summary judgment is not to try an issue of fact, but to determine whether a triable question of fact exists. (Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 23, 462 N.E.2d 877, 881-82.) Summary judgment is a drastic remedy. It must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 473 N.E.2d 531.) In passing on a summary judgment motion, the trial court is therefore required to construe the pleadings, affidavits, depositions and admissions on file strictly against the moving party and liberally in favor of the opponent. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) Only if these materials establish that the movants’ entitlement to summary judgment is clear and free from doubt may such a motion be granted. Fremont Indemnity Co. v. Special Earth Equipment Co. (1985), 131 Ill. App. 3d 108, 112, 474 N.E.2d 926, 930.

In the instant case, the real question is whether plaintiffs’ injuries were foreseeable. In order to prevail on a claim of common law negligence, a plaintiff must show a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately caused by the breach. Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307, 308.

“The law of probable cause holds that an injury which is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury.” Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, 117 N.E.2d 74, 78-79.

Assuming facts most favorable to plaintiffs, we find that a reasonable person could infer that defendants’ alleged negligent acts proximately caused plaintiffs’ injuries. All defendants had the ability to foresee the potential for a minor falling through a window screen. We agree with plaintiffs that technology over the last 35 to 40 years has advanced. All cases which held that the owner of an apartment building had no duty to maintain a screen in a window of an apartment sufficiently strong to support a tenant’s child relied upon the 1947 case of Crawford, v. Orner & Shayne, Inc. (1947), 331 Ill. App. 568, 73 N.E. 615. The window screens of the 1940’s and 50’s were clearly different from the screens involved in the instant cases. Rogers v. Sins (1953), 349 Ill. App. 353, 110 N.E.2d 643, specifically described the screen which gave way in that case as “of the sliding type which expands to fit the aperture.” (349 Ill. App. at 355, 110 N.E.2d at 644.) This is quite different from the screens of today which come as part of the window unit with their own tracks and grooves on which to sit. Furthermore, the fact that the two toddlers fell through the screens within six months of each other in the same building could reasonably imply that there was a defect in the screen or that they were incorrectly installed.

The Illinois Supreme Court has yet to decide whether a landlord has any duty to install and maintain window screens sufficiently strong to withhold the weight of a minor child. We can find no rule by which we are bound that there is absolutely no liability on the part of the landlord, the builder or renovator, the retailer of the window unit, or the manufacturer of the window unit due to a defective screen. On the contrary, in Rogers v. Sins (1953), 349 Ill. App. 353, 110 N.E.2d 643, the court held that the evidence presented by the minor plaintiff was insufficient to support the allegations in the complaint and defendants’ motion for a directed verdict should have been allowed. The Sins court held “[w]e perceive nothing in the testimony from which the jury could properly find that there was anything defective or insecure about the screen, as such.” (349 Ill. App. at 356, 110 N.E.2d at 644.) The Sins court did not find that a landlord could not be liable; rather, under the facts of that case, the plaintiff did not present sufficient evidence to withstand a motion for directed verdict.

In authorities from other jurisdictions cited in the Illinois cases defendants cite to this court there is further support for judicial recognition of a purpose for window screens other than just keeping out insects. In Shaw v. Butterworth (1931), 327 Mo. 622, 38 S.W.2d 57, the Missouri Supreme Court stated:

“[Wjhile a primary purpose of a window is to admit light and air, and to prevent the entry of objectionable elements, and that of screens to keep out insects while letting in light and air, yet it is common knowledge that a secondary purpose is allocated to windows and screens and that purpose involves ordinary protection against persons falling from the window. [Citation.] It is also common knowledge that a screen, constructed and placed in a window casing in the manner ordinarily done, is sufficiently secure to withstand the pressure of a person leaning against it. It was a jury question as to whether the screen as originally constructed was intended to withstand ordinary pressure.” 327 Mo. at 630, 38 S.W.2d at 61.

Likewise, we find that in the instant cases, the trial court’s orders denying defendants’ motions for summary judgment were appropriate. Plaintiffs should be allowed to present evidence to the jury concerning the facts of this particular case to determine if defendants breached any duty to plaintiffs. There is a question whether these screens were properly in place or whether they were even the correct screens for the windows in question. To grant defendants’ motions for summary judgment at this stage of the proceedings would have been premature at best.

We also find that the trial court was correct at the time in denying the motion to dismiss of defendant Carroll Supply & Service based upon section 2 — 621 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621.) This section allows a seller who has done nothing to create or contribute to a defect who is sued in a products liability action to escape ultimate liability by correctly identifying the manufacturer of a product allegedly causing an injury, death, or damage. (Sims v. Teepak, Inc. (1986), 143 Ill. App. 3d 865, 493 N.E.2d 721.) In order to be allowed such protection, the defendant “shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621(a).) In the instant case, defendant Carroll Supply & Service did not file such an affidavit upon answering plaintiffs’ complaint. Originally, defendant filed a pro se general denial on August 8, 1985. On July 1, 1986, Carroll Supply & Service filed a motion to dismiss based upon the provisions of section 2 — 621. We do not find this late filing to bar the retailer from raising this issue in a motion to dismiss; however, the trial court could have determined that an issue existed as to whether Carroll Supply & Service had actual knowledge of a defect in the window screen or had itself created the defect. While Dale Carroll stated in his deposition that the window units were not damaged upon their arrival from the manufacturer and that they were not changed while in his possession, the discovery on this issue is sparse, and it was obvious that Dale Carroll could not remember everything about the order of the window units in question and their arrival at defendant’s store. If a determination is made that a nonmanufacturer defendant did have actual knowledge of the defect or created the defect, then the nonmanufacturer defendant is not afforded the protection of section 2 — 621. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(c)(2), (c)(3).) Due to the lack of discovery on this issue, the trial court was correct to deny defendant’s, Carroll Supply & Service’s, motion to dismiss at this time. This does not preclude the retailer from refiling a motion to dismiss based on section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621) after further discovery.

For the foregoing reasons, this court affirms the orders of the circuit court of Madison County denying all defendants’ motions for summary judgment and denying defendant’s, Carroll Supply & Service’s, motion to dismiss.

No. 5—88—0088, Affirmed.

No. 5—88—0094, Affirmed.

LEWIS and HOWERTON, JJ„ concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    OTTO F. MARES et al., Plaintiffs-Appellees, v. DuQUOIN EAST LAKE ASSOCIATION, INC., Defendant-Appellant.
    Fifth District
    No. 5—88—0625
    Opinion filed October 18, 1989.

      Jerry B. Smith, of DuQuoin, for appellant.
    Gayl S. Pyatt, of Pinckneyville, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

In the beginning, there was one owner of one tract of land and there was a lake and a pond upon the land.

Part of the land was low and marshy and so the owner put a drain pipe in the earth between the lake and pond. Time passed, and the pipe became clogged with roots and silt, and the drain slowed to a trickle.

Then the land was divided into two tracts: one tract lay north of the lake and included the lake; the other tract lay south of the lake and included the pond. Both tracts were sold.

Plaintiffs became the owners of the west portion of the pond and the land that lay south of the lake.

Defendant became the owner of the lake.

Others became owners of the land that lay north of the lake.

The lake was named East Lake and its southern water mark was the plaintiffs’ north property line.

The drain pipe lay in the earth on plaintiffs’ land, except where it protruded into East Lake. And the land looked like this:

Plaintiffs cut a ditch parallel to the trickling pipe. East Lake fell one to two feet.

Defendant’s members and agents went on plaintiffs’ land and filled the ditch.

Plaintiffs sued defendant for trespass.

Defendant counterclaimed: (1) for damages caused to it by subsidence of water in the lake; and (2) for injunctive relief — defendant wanted plaintiffs enjoined from maintaining the ditch, from doing any act which would lower the water level of East Lake and wanted plaintiffs ordered to restore East Lake’s bank to its original condition.

After a bench trial, the circuit court found that the drain pipe was a drain for mutual benefit as provided in section 2 — 8 of the Illinois Drainage Code (Ill. Rev. Stat. 1987, ch. 42, par. 2 — 8). In consequence of that finding, the court allowed plaintiffs to repair and replace the drain pipe and enjoined defendant from interfering with the pipe or plaintiffs’ repair, maintenance and replacement of the pipe. (Ill. Rev. Stat. 1987, ch. 42, pars. 2 — 11, 2 — 12.) The circuit court also enjoined plaintiffs from maintaining the ditch they had cut in the bank of East Lake (Ill. Rev. Stat. 1987, ch. 42, par. 2 — 8) and denied defendant’s claim for damages.

We reverse the finding that the pipe was a drain for the mutual benefit, because it is against the manifest weight of the evidence.

Section 2 — 8 of the Illinois Drainage Code (Ill. Rev. Stat. 1987, ch. 42, par. 2 — 8) provides that “[wjhen a *** drain *** is privately constructed *** on a tract of land and the ownership of such tract is thereafter divided, such *** drain *** shall thereupon be deemed a drain *** for the mutual benefit of all the portions of the original tract connected to, or protected by, such ditch.”

It is long-standing law that when an owner of a single tract of land establishes a drain and thereafter divides the tract, the ownership of the tracts passing to separate owners, the drain running through the land of each, then each of the owners has an easement in the land of the other to have the drain maintained. Lanter v. Hartman (1900), 95 Ill. App. 80, 87.

Since one cannot have an easement in one’s own land, application of the Lanter principle to this case depends upon an easement coming into existence at the time the land was divided. (See also Ill. Rev. Stat. 1987, ch. 42, par. 2 — 8.) In order for an easement to have come into existence at the time the original owner divided the land, there had to be, at the time of division, a drain upon the land. Therefore, the controlling issue of fact in this case is whether there was a drain upon this land at the time the land was divided.

Contrary to the finding of the circuit court, the evidence failed to establish that there was a drain upon the land at the time the land was divided. It is critical to distinguish a drain from a drain pipe. Merely because a drain pipe is in the ground does not mean it drains; it can be clogged. The determinative fact is not the existence of a drain pipe; rather, the determinative fact is the existence of a drain that worked at the time the land was divided. The witnesses testified that at the time the land was divided there was “some water,” “only a trickle,” that flowed through the drain. The circuit court found that this testimony established drainage. We have reviewed the record and disagree with this factual conclusion. The land was divided in March of 1987. Only two witnesses testified to the rate of drainage at that time, and both testified that the drain pipe had been clogged for 20 years with only “seepage” or a “trickle” escaping. Neither “seepage” nor “trickle” is drainage. “Seepage” and “trickle” are rates of flow that are de minimus. The statute contemplates more. It contemplates a drain that works and is of benefit. To use the words of the Illinois Drainage Code, a choked pipe is not a “water course *** by which waters coming or falling upon lands are carried away.” (Ill. Rev. Stat. 1987, ch. 42, par. 1 — 2(d).) A choked pipe that only seeps and trickles does not work. The rate at which it carries away water is like the rate at which glaciers move upon the earth — too slowly to be noticed, except over long periods of time. This choked pipe was no drain.

Since the finding that there was a working drain on the land at the time it was divided is against the manifest weight of the evidence and is reversed, there is no factual basis for finding that there was an easement created at the time of division under the Lanter doctrine. Accordingly, that part of the circuit court order giving plaintiffs the right to replace and repair the pipe is reversed.

We affirm the circuit court’s refusal to award defendant damages, because they were not proven. See Wahls v. Brandt (1898), 175 Ill. 354, 51 N.E. 707.

We affirm the enjoinment of plaintiffs from maintaining the ditch. Inasmuch as the drain pipe was so clogged it could not be cleaned, the ditch was dug as a substitute. Therefore, the ditch did not arise by “mutual license, consent or agreement” between adjoining landowners (see Ill. Rev. Stat. 1987, ch. 42, par. 2 — 8), and plaintiffs had no more right to ditch the lake bank than they would have had to clean the pipe. Both rights would depend on an easement being created at the time the land was divided and the facts of this case do not establish an easement. To permit either right, necessarily, would enlarge plaintiffs’ property by adding an easement for a drain that did not exist at the time they bought the land.

Affirmed in part; reversed in part.

WELCH, P.J., and CHAPMAN, J., concur.


author: JUSTICE LEWIS

text:
    BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Defendants-Appellants.
    Fifth District
    No. 5—88—0446
    Opinion filed October 18, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General,, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Shari R. Rhode and Denise E. Gale, both of Carbondale, and Theodore R. Leblang and M. Douglass Henderson, both of Springfield, for appellees.
    Byron H. Higgins, of University of Illinois, of Urbana, for amicus curiae.

   JUSTICE LEWIS

delivered the opinion of the court:

The defendants, Illinois Department of Human Rights (hereafter referred to as the Department), together with Joyce E. Tucker, Freddie Gatewood, and Stanley R. Moen, in their official capacities, appeal from a default judgment for permanent injunction entered by the circuit court in favor of the plaintiffs, Board of Trustees of Southern Illinois University, David White, Jim Bramlet, Richard Moy and Terry Travis. In view of our disposition of this appeal, we need consider only one of the two issues presented: whether the defendants’ answer and entry of appearance were timely filed by virtue of having been deposited in the mail prior to the date of appearance to answer specified in the summons although not received in the office of the circuit clerk until after the date so specified.

On April 18, 1988, the plaintiffs filed a complaint for writ of prohibition against the defendants, contending that the Department lacked jurisdiction to investigate a charge of unlawful discrimination made by a student concerning suspension or dismissal from an academic program at an institution of higher education. In the complaint plaintiffs sought to restrain and prohibit the defendants from conducting any proceedings in the matters of two students who had filed charges alleging racial discrimination in their treatment as students while enrolled in academic programs at Southern Illinois University at Carbondale. The summons, duly served on April 20, 1988, required the defendants to appear before the court at 1:30 p.m. on June 2, 1988, to answer the complaint. Thereafter on April 22, 1988, plaintiffs filed a motion for preliminary injunction, served upon the defendants, seeking to enjoin proceedings by the Department concerning the charges of racial discrimination brought by the two students in question. On April 29, 1988, the trial court conducted a hearing on the motion at which no one appeared on behalf of the defendants. Following the hearing, during which one witness testified for the plaintiffs, the trial court granted the plaintiffs’ motion in an order that stayed all proceedings in the matters filed with the Department by the two students. According to the certificate of service, on June 1, 1988, the defendants deposited in the mail their entry of appearance and answer, serving a copy of each upon the plaintiffs’ attorneys by mailing the copies on that date. On June 2, 1988, counsel for plaintiffs appeared before the trial court at the hour designated in the summons. No one appeared on behalf of the defendants. After waiting until 2 p.m., the trial court conducted the hearing, at which counsel for the plaintiffs presented their position concerning the absence of jurisdiction of the Department in such matters. At the conclusion of the hearing, the trial court stated that the relief sought by the plaintiffs in their complaint would be granted and directed counsel for the plaintiffs to prepare an order to that effect. In an entry for that date on the record sheet, the court stated that no answer was in the file and that the defendants were in default. On June 3, 1988, the defendants’ entry of appearance and answer were file stamped by the circuit clerk. On June 9, 1988, the trial court entered an order for permanent injunction, which was filed on June 10, 1988. The order enjoined the Department and its agents and employees from proceeding with their investigation and processing of the matter of each of the two students.

Thereafter, on June 17, 1988, the defendants through their attorney filed a motion to vacate the judgment for permanent injunction. In the motion, the attorney, who was the same assistant Attorney General who had earlier filed his entry of appearance on behalf of the defendants and had answered for them, stated that on May 16, 1988, he had been assigned to represent the defendants in this matter and that he had immediately contacted one of plaintiffs’ attorneys to inform them that the matter had been received by the Attorney General’s office and to determine the disposition of the hearing had on April 29, 1988. Thereafter, pursuant to his request, he had received a copy of the order granting preliminary injunction. In the motion counsel stated the facts, set forth above, concerning the mailing and filing of defendants’ entry of appearance and answer. Counsel stated further that on June 16, 1988, he had received a copy of the order for permanent injunction entered on June 9, 1988. Following a hearing the trial court entered an order on June 23, 1988, denying the defendants’ motion to vacate, and this appeal followed.

The defendants contend that filing of their entry of appearance and answer were effective at the time of mailing on June 1, 1988, prior to the time specified in the summons. They maintain that, as a result, the trial court improperly entered default judgment against them and that the judgment must, therefore, be vacated.

Recently, in Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 533 N.E.2d 1072, the supreme court held that notices of appeal mailed within the requisite 30-day period but received thereafter are timely filed, noting that the issue has been the subject of controversy among different panels of the appellate court. The court observed that while older case law has held that papers are not filed until actually committed to the control and custody of the clerk, more recent authority suggests that the rule should be modified to take into account the widespread practice of filing documents by mail. The court considered Supreme Court Rule 373 (107 Ill. 2d R. 373), which provides that, if records, briefs, or other papers required to be filed within a specified time in the re-viewing court are received after the due date, the time of mailing shall be deemed the time of filing. The court concluded that Rule 373

“evinces a general policy of equating mailing and filing dates, particularly with respect to appellate practice. The reason for this is that Rule 373 ‘was designed to make it unnecessary for counsel to make sure that briefs and other papers mailed before the filing date actually reach the reviewing court within the time limit.’ (107 Ill. 2d R. 373, Committee Comments, at 476.) A notice of appeal, unlike many other papers filed in the circuit court, is closely related to the appellate process; when timely filed it divests the trial court of jurisdiction and confers jurisdiction upon the appellate court. (Lombard v. Elmore (1986), 112 Ill. 2d 467, 471-72.) It is therefore appropriate that the pro-mailing policy of Rule 373 should be applied to the filing of a notice of appeal under Rule 303(a). Moreover, a liberal pro-mailing policy is more equitable, since it places smaller firms which may lack telefax machines and messenger services on an equal footing with their larger competitors.” (Harrisburg-Raleigh Airport Authority, 126 Ill. 2d at 341-42, 533 N.E.2d at 1078.)

The court stated that it expressed no opinion as to whether the same policy would apply to other papers filed in the circuit court, such as post-trial motions.

Prior to the decision in Harrisburg-Raleigh, we determined in In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088, that deposit of a post-trial motion in the mail constituted filing of the motion pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203). In Morse the post-trial motion, which, in order to have been timely, had to have been filed on January 18, 1985, bore a proof of service stamp stating that the motion had been placed in the mail on January 18, 1985. The motion was postmarked January 19, 1985, and was not filed by the clerk of the circuit court until January 21, 1985. Earlier, in A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, 450 N.E.2d 1356, the court had held that the mailing of a post-trial motion on the 29th day after entry of the final order was timely, notwithstanding that the circuit court did not receive the motion until the 31st day after entry of the final order. Concluding in Morse that a proof of service date was sufficiently analogous to an affidavit attesting to the mailing date so as to extend the reasoning in Schulman to Morse, we held that the post-trial motion in Morse was timely filed.

Thereafter, in reliance upon Morse and prior to the decision of the supreme court in Harrisburg-Raleigh Airport Authority, we held in People v. Simmons (1987), 164 Ill. App. 3d 205, 517 N.E.2d 1106, that a motion to withdraw pleas was timely when mailed within 30 days of sentencing but received by the circuit court one day thereafter. Similarly, in Board of Education v. Benton Federation of Teachers (1988), 165 Ill. App. 3d 514, 518 N.E.2d 1257, we noted, citing Morse and Schulman, that a motion to vacate or clarify the judgment of the trial court was timely filed when mailed on the final day of the statutory filing period but received by the circuit court after the filing period had expired.

By way of comparison we note the reasoning expressed in Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 500 N.E.2d 692, which distinguished the filing of documents in a pending case, as is in issue in the instant case, from the filing of a petition or other initial pleading that constitutes the initiation of an action. In Wilkins a petition for relief from a final judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1401), required to be filed within a two-year period, was mailed to the circuit clerk within the two-year period but was not received until the period had expired. The court acknowledged that the weight of recent authority evinces a policy favoring acceptance of the date of mailing, rather than the date of receipt, as the date of filing with the clerk of the circuit court certain documents, such as a post-trial motion or a notice of appeal. The court observed, however, that the policy had never been applied to the filing of pleadings such as a complaint or a section 2 — 1401 petition. Describing the latter as the initiation of a new action, the court held the actual filing date of a section 2 — 1401 petition to be the date on which it is received and stamped by the circuit clerk’s office rather than the date on which it is mailed.

In view of the widespread practice of filing documents by mail and the risks associated with delays in mail service, we think that the policy of equating mailing and filing dates adopted with respect to notices of appeal as well as some other papers filed in the circuit court should apply to the filing of an entry of appearance and answer. Therefore, we hold that the defendants’ entry of appearance and answer were timely filed when deposited in the mail prior to the date of appearance to answer specified in the summons but received in the office of the circuit clerk after that date. As a consequence, default judgment was improperly entered against the defendants, and we reverse the judgment and remand the cause for further proceedings.

We note that at the close of the hearing conducted on June 2, 1988, after having heard the argument of only the plaintiffs, the trial court expressed views concerning the merits of the cause of action that were favorable to the plaintiffs. However, the comments were made without benefit of argument on behalf of the defendants. Although the defendants indicated at oral argument that they would accept a ruling on the merits of the cause by this court, they are entitled to such a determination by the trial court after it has been afforded a full presentation of the position of all parties to the litigation.

Reversed and remanded.

HARRISON and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
      In re ESTATE OF INGEBORG M. KREMER, Deceased (Patricia Mace, Petitioner-Appellant, v. Magna Trust Bank, Ex’r, Respondent-Appellee).
    Fifth District
    No. 5—88—0447
    Opinion filed October 23, 1989.

      John J. Kurowski, P.C., of Belleville (John J. Kurowski and Edward E. Johnston, of counsel), for appellant.
    Thompson & Mitchell, of Belleville (Mark J. Stegman, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Ingeborg Kremer died January 20, 1987, a few months after the death of her husband, Otto Kremer. Her last will and testament dated May 26, 1983, was admitted to probate, and Magna Trust Company was appointed as executor on January 26, 1987. Ingeborg’s will left her entire estate in equal shares to her seven children, Norbert Kremer, Harald “Skip” Kremer, Patricia Mace, Barbara Diehl, Bruce Kremer, Ingrid Kremer and Andrew Kremer.

During the administration of this estate the executor filed a petition, seeking approval of certain acts of the executor with regard to the disposition of personalty of the estate. Patricia Mace, a daughter and beneficiary under the will, filed a response to the petition, objecting to the disposition of some of the property. A hearing on the matter was conducted whereupon the court entered an order dispensing with a final disposition as to the personal property. Patricia Mace appeals from the court’s disposition of three matters, including the distribution of Ingeborg Kremer’s cameras, a collection of coins, and a loan purportedly made to Ingeborg Kremer.

The court order entered May 2, 1988, stated in part:

“The decedent possessed certain cameras during her lifetime and made completed gifts of such cameras to Harald Kremer, Norbert Kremer, Andrew Kremer and Bruce Kremer during her lifetime, and the estate of the decedent had no interest in such cameras at the time of the decedent’s death. The decedent also possessed various items of photographic equipment and darkroom equipment that formerly belonged to her deceased husband, and the gifts of cameras to the aforesaid heirs did not include gifts of such photographic equipment and darkroom equipment.”

We first address the claim of Patricia Mace that the court’s finding that the decedent made completed inter vivos gifts of certain cameras to her four sons was against the manifest weight of the evidence.

When Ingeborg Kremer’s husband Otto died, he owned an extensive collection of camera equipment and darkroom equipment. This collection become the property of Ingeborg, since she was the sole beneficiary of Otto’s will. Roger Beaman, who is the president and chief executive officer' of Magna Trust Company, stated in a petition filed with the probate court that the camera equipment did not constitute assets of Ingeborg’s estate. However, it was the executor’s position that the darkroom equipment was included in the estate inventory. His conclusion was based on discussions he had with the Kremer children, wherein it became evident to him that Ingeborg gave the cameras to the boys. Mr. Beaman testified that he spoke with all of the children except Bruce, and that all of those he spoke with, except Patricia Mace, indicated that Ingeborg had given the camera equipment to the boys as gifts. Mr. Beaman testified that it was his impression that Ingeborg gave the camera equipment to her sons in order to equalize the distribution of gifts of jewelry she had made to the girls.

At the hearing, Barbara Diehl testified that prior to her mother’s death, her mother had distributed most of her jewelry among Ingrid, Patricia and herself. Mrs. Diehl testified that she believed the cameras and camera equipment were given to her brothers prior to her mother’s death, and that those items were not to be included as estate assets. She believed, however, that the darkroom equipment was not given to her brothers and would be part of the estate. Ingrid Kremer also testified that prior to her death her mother gave the camera equipment to her sons.

Andrew Kremer testified that after his father died, his mother told him that he and Skip should get together with Bruce and they should take whatever camera equipment they desired. He further testified that later, when Norbert came to visit his mother, it was determined that the camera equipment was to be divided among the four boys. It was then that Andrew and Norbert took the camera equipment from their father’s bedroom and put it in Andrew’s room, which was in the basement of their mother’s home. Andrew testified that until that time the camera equipment had always been kept in his father’s room.

Norbert testified that when he visited his mother for Christmas in 1986, she made it very clear to him that she intended the cameras to be divided among her sons. Harald “Skip” Kremer also testified that shortly before Christmas of 1986, his mother told him that he should take his share of the cameras. Andrew was present when his mother advised Harald of this. Harald testified that Andrew was compiling an inventory of the cameras and that he and his brothers agreed that they would get together at a later time to decide how to divide the cameras.

Although Harald and the others received a copy of the inventory of the camera equipment prior to their mother’s death, it wasn’t until after her death that the four brothers divided the camera equipment. Harald testified that he and his brothers waited until after their mother’s death to divide the items because they did not consider it a high priority, and it was not something they felt they had to do immediately.

Mr. Jack Strobel was called as a witness. He testified that he is the owner of City Photo Supply, a camera supply company. Mr. Strobel testified that shortly after Otto Kremer’s death, Andrew Kremer contacted his store about having the camera equipment appraised. Jack Strobel testified that the appraisal was only with regard to the camera equipment, and it had nothing to do with the darkroom equipment.

We note at the outset that it is the province of the trial court to weigh the testimony, together with all the other evidence and circumstances appearing in the case, and determine whether the property in question belongs to the estate of the decedent. The court’s finding on the issue may not be upset unless it is against the manifest weight of the evidence. Storr v. Storr (1946), 329 Ill. App. 537, 547, 69 N.E.2d 916, 921.

It is presumed that when a mother transfers or delivers property belonging to her to her child a gift of the same is intended. (Nolan v. American Telephone & Telegraph Co. (1945), 326 Ill. App. 328, 343-44, 61 N.E.2d 876, 882.) Appellant, Patricia Mace, in her brief argues, however, that clear and convincing evidence of a change in possession of the camera equipment was not shown, especially as in this case Andrew and his mother shared a residence. Mrs. Mace cites In re Estate of McIntire (1976), 44 Ill. App. 3d 726, 358 N.E.2d 903, in support of this argument. Mclntire held that the evidence did not establish that a valid, completed, inter vivos gift of livestock had been made to the purported' donee. The evidence in that case consisted of testimony by the alleged donee Sattie York, and others, that the decedent had told them at unspecified times that he had given the cattle to Sattie York. Mclntire is distinguishable since there was ample evidence in the record in this case that the intent of Ingeborg Kremer to give the camera equipment to her sons was accomplished.

The testimony was that after Ingeborg advised her sons of her intent, Andrew and Norbert moved all of the camera equipment out of their father’s bedroom downstairs to Andrew’s bedroom. Until that time the camera equipment had always been kept in Otto Kremer’s room. Barbara, Andrew, Harald and Patricia all testified that Harald even took several cameras with him when he returned to Ohio after visiting with his mother in December of 1986. The testimony further revealed that because there was rarely a time when all four of the boys were together to divide the equipment, they agreed that actual division of the items would be made at a later time. The fact that Andrew made arrangements with Jack Strobel prior to his mother’s death to appraise the camera equipment further supports the finding that the inter vivos gift had been completed and that the boys waited to make an actual division of the property until after they could obtain an inventory and estimate of the value of the property.

We find applicable to this case the rule that delivery by the issuer to one of the joint owners is delivery for the benefit of all and satisfies the requirement of delivery where, as here, there is donative intent. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 72, 185 N.E.2d 850, 856, citing Maciaszek v. Maciaszek (1961), 21 Ill. 2d 542, 173 N.E.2d 476.) We have carefully considered the evidence as shown by the record in this case and agree with the trial court’s conclusion that the decedent made completed gifts of the camera equipment prior to her death. The decedent’s words of intent to distribute the camera equipment among her sons, and the delivery and surrender of possession and control to her son Andrew as trustee on behalf of each of the brothers satisfies us that the camera equipment was given to Ingeborg Kremer’s sons by her prior to her death and is therefore not a part of her estate.

The next issue on appeal concerns the disposition of certain coins. The petition for issuance of citation filed by Patricia Mace asserts that she believes coins belonging to the estate are in the possession of certain legatees or other individuals which they are concealing from the executor for their own benefit. After a hearing on the matter, the court in its order of May 2, 1988, found:

“All of the coins possessed by Barbara Diehl and Andrew Kremer that were inventoried by them and turned over to the Executor of the estate of the decedent have been accounted for and inventoried in this estate by the Executor. The two (2) bags of coins referred to in Paragraph 10 of the Executor’s Petition that were allegedly missing have been accounted for and inventoried by the Executor in this estate.”

In her brief, Patricia Mace argues that the trial court erred in not ordering that an accounting be conducted to determine the whereabouts of the alleged missing coins. At trial Patricia Mace testified that the night before her mother died, she and Barbara sorted the gold coins from her mother’s coin collection and divided them into bags, one bag for each of Ingeborg Kremer’s children. The remaining coins were placed into seven bags, one designated for each child, and placed in Otto Kremer’s bedroom closet. Patricia testified that she took with her the bags of coins designated for Norbert, Ingrid, Skip and herself. Andrew was given his portion, and Barbara took a bag for Bruce and herself. Patricia explained that before she left the house Norbert complained about the division of coins. Patricia testified that she kept her portion and Ingrid’s portion, and as Norbert threw her out of the house, Patricia gave Norbert the bags of coins designated for Skip and Norbert. She testified that that was the last time she saw those coins.

Andrew Kremer testified that just prior to his mother’s death Ingrid, Barbara and Patricia divided the coins into small bags and attempted to distribute them among each of Ingeborg’s children. Norbert objected to this and demanded that all of the coins be returned to the estate. Andrew testified that the coins were taken to Patricia Mace’s house. Later Patricia turned the coins over to Andrew and he signed a receipt for them. Andrew testified that Barbara then took the coins home for safekeeping, until she and Andrew took them to an appraiser. He remembered that at the time of the appraisal there were seven bags of coins containing a total of 49 coins. Andrew testified that after the coins were appraised they were taken to the office of Mr. Kurowski, the attorney representing Patricia Mace. The coins were later delivered to Mr. Obernagel, who works for Magna Trust Company. Andrew testified that to the best of his knowledge all of the coins for which he signed the receipt for Patricia Mace were accounted for on the inventory prepared by the appraiser.

Barbara Diehl’s testimony supported Andrew’s version of the disposition of the coins. Barbara testified that the coins were taken to her house and were later taken by her and Andrew for an appraisal. She testified that she did not know the whereabouts of the alleged missing coins.

Both George Obernagel and Roger Beaman of Magna Trust Company testified that during their investigation they questioned each family member, but that their efforts to locate the alleged missing coins proved unavailing.

A review of the record shows that there were conflicts between the testimony of Patricia Mace and that of the other witnesses as to the existence of additional coins. The trial court had the opportunity to observe the manner and demeanor of the witnesses when testifying. Credibility of the witnesses is a matter for the trial court to determine, and a court of review will not disturb its findings when evidence is contradictory unless they are against the manifest weight of the evidence. Johnson v. Fulkerson (1957), 12 Ill. 2d 69, 145 N.E.2d 31; Northern Trust Co. v. City of Chicago (1954), 4 Ill. 2d 432, 123 N.E.2d 330.

The evidence shows that an investigation was conducted as to the alleged missing coins by Roger Beaman and George Obernagel of Magna Trust Bank. Each of Ingeborg Kremer’s children was interviewed and inquiries were made as to the existence of any coins other than those accounted for in the estate. The trial court’s determination that the alleged missing coins have been accounted for and inventoried by the executor is not against the manifest weight of the evidence. See, e.g., In re Estate of Denier (1980), 80 Ill. App. 3d 1080, 1090, 400 N.E.2d 641, 649; Storr v. Storr (1946), 329 Ill. App. 537, 547-48, 69 N.E.2d 916, 921.

The final issue for our consideration is whether the trial court erred in permitting an offset to Andrew Kremer for an alleged $3,000 loan he made to Ingeborg Kremer. It is undisputed that a photocopy of a check in the amount of $5,000, admitted into evidence in the trial court represents a loan Andrew made to his mother. Roger Beaman testified that he was given photocopies of checks, one for $5,000, a check for $3,000, and one for $2,000. The checks for $5,000 and $3,000 are drawn on the account of Andrew Kremer and made payable to Ingeborg Kremer. The backs of those checks show they were endorsed by Ingeborg Kremer. Roger Beaman testified that based on the information furnished to him, the check for $3,000 represented payment for tools and guns Andrew purchased from his mother. Mr. Beaman testified that he believed Andrew was due $3,000, which represents the unpaid balance due on the loan.

Barbara Diehl testified that she was aware of the $5,000 loan Andrew made to her mother. Mrs. Diehl testified that to her knowledge part of the loan had been satisfied by her mother and part of the loan had been credited as payment by Andrew for the tools and guns he purchased from Ingeborg Kremer.

Andrew testified that he paid his mother $3,000 for the tools and guns, which was the total purchase price agreed upon by he and his mother. Andrew further testified that he loaned his mother $5,000 and was repaid $2,000, leaving a balance due of $3,000.

Patricia Mace testified that she wrote the check for $2,000 payable to Andrew Kremer, as partial payment of the loan to Ingeborg Kremer. Patricia testified that she recalls that her mother told her when the check for $2,000 was written that it was the final payment of a loan for $5,000. Patricia could not determine, however, when the other payment was made.

We find that there was sufficient evidence presented to prove Andrew Kremer had not been paid the $3,000 balance on the loan he had made to his mother. However, the record reveals that Andrew Kremer did not file a claim against the estate for the $3,000 due him. Section 18 — 12 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110^2, par. 18 — 12) provides that “[a]ll claims against the estate of a decedent *** not filed with the representative or the court within 6 months after the entry of the original order directing issuance of letters of office are barred as to all of the decedent’s estate.”

Section 18 — 12 of the Act is not merely a general statute of limitations. This section was adopted for the purpose of facilitating early settlement of estates. A failure to file a claim within the statutory period bars the claimant from participating in the uninventoried assets of the estate. This is true even if the executor has personal knowledge of the claim. (In re Estate of Newcomb (1972), 6 Ill. App. 3d 1094, 287 N.E.2d 141, citing Pratt v. Baker (1964), 48 Ill. App. 2d 442, 446, 199 N.E.2d 307, 308, cert. denied (1967), 389 U.S. 874, 19 L. Ed. 2d 157, 88 S. Ct. 165.) Furthermore, where a legal claim should have been, but was not, filed against the estate within the statutory period, relief will not be accorded by the application of equitable principles. Abrams v. Schlar (1960), 27 Ill. App. 2d 237, 169 N.E.2d 583; Austin v. City Bank (1936), 288 Ill. App. 36, 5 N.E.2d 585; Alderson v. Estate of Alderson (1922), 226 Ill. App. 176.

In the instant case, had Andrew Kremer complied with section 18 — 12, we would agree with the trial court’s finding. However, since the record reveals that no claim was filed by Andrew Kremer or on his behalf with regard to the $3,000 due him, the trial court erred in allowing an offset against amounts charged to Andrew’s distributive share of the estate.

In view of the foregoing, we affirm the trial court’s disposition of the cameras and the coins and reverse that portion of the trial court’s order which permitted an offset to Andrew Kremer for the $3,000 loan.

Affirmed in part; reversed in part.

HOWERTON and LEWIS, JJ., concur.

       Justice Lewis replaces Justice Welch, who recused himself after the cause was taken under advisement.


author: PRESIDING JUSTICE WELCH

text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 841 HEALTH AND WELFARE FUND, Plaintiff and Third-Party Defendant-Appellant, v. GREGORY S. HICKMAN et al., Defendants (Kay Myers, as Mother and Next Friend of Vicki Myers, Third-Party Plaintiff-Appellee; Gregory S. Hickman, Third-Party Defendant).
    Fifth District
    No. 5—88—0296
    Opinion filed October 27, 1989.

      Thomas E Crosby, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellant.
    R. Courtney Hughes, of John Paul Womick & Associates, Chartered, of Carbondale, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This appeal is from the judgment entered November 4, 1987, in the circuit court of Jackson County granting summary judgment in favor of intervening third-party plaintiff Vicki Myers, a minor by her mother and next friend Kay Myers, and against third-party defendant International Union of Operating Engineers Local 841 Health and Welfare Fund (hereinafter IUOE).

On April 18, 1985, an automobile accident resulted in injury to Vicki Myers, who was a passenger in a vehicle owned by her father, Paul Myers, and then being driven by her brother, Michael Myers. The vehicle with which they collided, and the only other vehicle involved in the accident, was driven by Gregory Hickman. The medical treatment obtained by Vicki Myers was covered under a group insurance policy issued to IUOE by United of Omaha, a Mutual of Omaha Company. The policy provided hospital benefits and major medical benefits, along with other benefits not pertinent to this case. These benefits were provided for IUOE employees, one of whom was Paul Myers, and their dependents, one of whom was Vicki Myers.

On November 3, 1986, pursuant to section 2 — 403 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 403), and the subrogation rights provided in the group insurance plan, IUOE filed suit against Michael Myers and Gregory Hickman, the drivers of the two vehicles involved in the accident which resulted in Vicki Myers’ injury, seeking to recover monies expended for Vicki Myers’ medical treatment. The subrogation provision contained in the group insurance policy reads as follows:

“SUBROGATION
Definitions
‘Subrogation’ means the Company’s right to recover any policy payments:
(a) made because of an injury to the protected person or a dependent caused by a third party’s wrongful act or negligence; and
(b) which the protected person or a dependent later recovers from the third party or the third party’s insurer.
‘Third Party’ means another person or organization.
Subrogation Rights
If a protected person or a dependent is injured because of a third party’s wrongful act or negligence:
(1) the Company will pay policy benefits for that injury, subject to the conditions that the protected person and a dependent:
(a) agree to the Company’s being subrogated to any recovery or right of recovery the protected person or dependent has against that third party;
(b) will not take any action which would prejudice the Company’s subrogation rights; and
(c) will cooperate in doing what is reasonably necessary to assist the Company in any recovery.
(2) the Company will be subrogated only to the extent of policy benefits paid because of that injury.”

On February 9, 1987, Vicki Myers, by her mother and next friend Kay Myers, filed a petition for leave to intervene in the action between IUOE and the two drivers. After a motion for change of venue filed by IUOE was granted on February 11, 1987, IUOE and Hickman filed objections to the petition for intervention. Notwithstanding these objections, the right to intervene was granted on April 10, 1987, and Vicki Myers’ third-party complaint was filed, naming IUOE and Gregory Hickman as defendants. In this third-party complaint, declaratory judgment was sought against IUOE, and damages resulting from alleged negligence were sought against Hickman.

In her declaratory judgment action against IUOE, third-party plaintiff Vicki Myers, by her mother Kay Myers, requested that the court declare that IUOE has no right to recover against defendant Hickman for the injuries suffered by Vicki Myers. Additionally, referring to the language contained in the group insurance policy, she requested that the court declare that IUOE not be allowed to subrogate itself to the rights of Vicki Myers without first obtaining her consent. Against third-party defendant Hickman, Vicki Myers alleged that she is entitled to recover against this defendant for his negligent acts or omissions which resulted in the underlying vehicular accident and consequent injuries. As a result of the alleged negligent acts or omissions of third-party defendant Hickman, Ms. Myers alleged that she sustained one or more of a variety of injuries, including nervous shock, disability, disfigurement and pain and suffering. Additionally, she sought to recover for past and future medical expenses.

On July 2, 1987, Vicki Myers, by her mother Kay Myers, filed a motion for summary judgment on count one of her third-party complaint. In this motion, it was alleged that, based on the language contained in the subrogation provision of the group insurance policy enumerated above, IUOE lacked standing to bring an action against defendant Hickman. Additionally, the motion alleged that case law supported her proposition that IUOE lacked standing to sue Hickman under the given circumstances. On November 4, 1987, the trial court found that IUOE did in fact lack standing to bring suit against defendant Hickman without the consent of Vicki Myers, and prior to any recovery by Vicki Myers from defendant Hickman. Having so found, summary judgment was entered in favor of Vicki Myers, by her mother Kay Myers, and against third-party defendant IUOE.

The trial court’s finding was based on a strict interpretation of the subrogation provision cited above, to the effect that IUOE could not exercise its subrogation rights until after a protected person or a dependent recovers from a third party or a third party’s insurer; and that IUOE could not exercise its subrogation rights without first obtaining the agreement of the protected person or dependent. IUOE’s motion to vacate this summary judgment was denied on May 13, 1988, and this appeal followed.

IUOE contends that Vicki Myers, in her position as a minor, lacked standing to bring a declaratory judgment action against IUOE. As the supreme court stated in Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298, there are two main, general requirements for standing to bring an action for declaratory relief: first, there must be an actual controversy, and second, the party seeking the declaration must be interested in the controversy, (Underground Contractors, 66 Ill. 2d at 375-76, 362 N.E.2d at 300-01.) The court went on to explain that to substantiate an actual controversy, the case must “present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” (66 Ill. 2d at 375, 362 N.E.2d at 300.) Further, the court stated that to be interested, a party must possess more than merely a curiosity about or concern for the outcome of the controversy. To be entitled to declaratory relief, a party must possess a personal claim, status, or right which is capable of being affected. 66 Ill. 2d at 376, 362 N.E.2d at 301.

In the instant case, Vicki Myers does possess a personal claim which is capable of being affected by IUOE’s action against defendant Hickman, and therefore is a proper party to seek declaratory judgment against IUOE. This court is aware, and does not dispute, that in Illinois the parents of a minor child are responsible for the child’s medical expenses. (Ill. Rev. Stat. 1987, ch. 40, par. 1015; Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 894, 412 N.E.2d 624, 628.) A minor child is neither the beneficiary of payments under an insurance contract, nor a third-party beneficiary as to such payments. (Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App. 3d 158, 160, 389 N.E.2d 211, 212.) Therefore, Vicki Myers has no legal interest in the payment of insurance proceeds for her medical treatment. However, it does not follow that she is not entitled to other remedies not including the cost of medical treatment.

In bringing her claim against defendant Hickman for personal injuries and pain and suffering, Vicki Myers is entitled to bring this action free from any possibility that IUOE’s participation in the action might prejudice or otherwise affect her interests. She is granted this right by virtue of the language contained in the definition of subrogation in the group insurance policy cited previously. An insurance policy in which no ambiguity appears is to be read according to the plain and ordinary meaning of its terms. (Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165, 319 N.E.2d 491.) By the definition of subrogation contained in the policy issued to its employees, IUOE is not entitled to subrogate itself to the rights of Vicki Myers or her parents unless one of these parties “recovers from the third party or the third party’s insurer.” Thus, even though the remedies sought by IUOE and Vicki Myers may be mutually exclusive, the terms of the policy restrict IUOE’s right to bring a cause of action to recover medical expenses paid until after Vicki Myers or her parents have recovered the same. Since none of these parties have so recovered, IUOE was properly denied its premature attempt to bring its subrogation action.

Referring once again to the group insurance policy provisions enunciated previously in this disposition, even were this court to construe the policy as containing an ambiguity — arguably created by the “later recovers” language of subparagraph (b) of the subrogation definitions provision, and the “right of recovery” language in subparagraph (l)(a) of the subrogation rights provision — the outcome would remain unaffected. Ambiguities contained in the language of an insurance policy are to be resolved in favor of the insured, and not the insurance company responsible for the drafting of the policy. (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044.) Such a resolution does not unfairly prejudice IUOE’s subrogation rights by forcing them to withhold any subrogation action until after the protected person or a dependent recovers because, in Illinois, the general release of a tortfeasor does not bar a subrogation action against the tortfeasor by the victim’s insurer where the tortfeasor or his insurer had knowledge of the insurer-subrogee’s interest prior to the release. Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210, 375 N.E.2d 115.

For the foregoing reasons, the judgment of the circuit court of Jackson County granting Vicki Myers’ motion for summary judgment is hereby affirmed.

Affirmed.

HARRISON and CHAPMAN, JJ., concur.