author: JUSTICE CHAPMAN

text:
      In re MARRIAGE OF JACK D. SCOVILLE, Petitioner and Counterrespondent-Appellee, and LINDA SCOVILLE, Respondent and Counterpetitioner-Appellant.
    Fifth District
    No. 5—91—0042
    Opinion filed August 28, 1992.

      Elizabeth Levine Levy, of Levy & Levy, P.C., of Collinsville, for appellant.
    John Barieevic, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Linda Seoville appeals from a judgment of dissolution of marriage, contesting the trial court’s division of property, the award of maintenance and child support, and the award of attorney fees and costs. We reverse and remand.

The parties were married in December of 1968 and their child was bom in 1978. On December 20, 1990, the trial court entered an order dissolving the marriage and awarding custody of the child to Linda, 48, and visitation to Jack, 53. The court ordered Jack to pay maintenance in the amount of $450 per month for four years and retained jurisdiction to review maintenance not later than four years from the date of judgment. Jack was also ordered to maintain Linda on his health insurance during this period and to pay one-half of the premiums for her coverage. The trial court further ordered Jack to pay child support of $750 per month, to provide medical and dental insurance for the child and to pay all medical and dental expenses of the child not covered by insurance. Linda’s attorney fees and costs totaled $10,203.53. Jack was also required to pay $4,000 of that total.

Because the issues on appeal concern the division of property, we will begin by examining the trial court’s distribution of the property using the chart below.

TRIAL COURT’S DISTRIBUTION OF PROPERTY
KEY
* Value stipulated to by the parties.
** No finding of value by court but undisputed in record.
* * * No finding of value by court and disputed in record.
**** The parties stipulate as to the current value but dispute the classification of this asset.
Property Assigned or Awarded to Husband
Nonmarital Value
Husband’s interest in Pike County land including interest in Scoville estate and property gifted to him which is marital
no finding ***
Guns no finding
Gross Avenue lot in East St. Louis $ 1,500 **
Coffee table in sunroom no finding
Marital
(a) BBJJ land trust (Stages nightclub) no finding ***
(b) Magna Trust 6511 (Popeye’s) no finding ***
(c) Oak Glen apartments no finding ***
(d) 1989 income tax overpayment on parties’ personal tax return $11,000 **
(e) IRA in husband’s name $29,914 *
(f) Dow Chemical stock (both parties) $11,795 *
(g) V2 interest in hog barn no finding ***
(h) Vs interest in lot (Tim & Joe’s) no finding ***
(i) V2 of 1986 tax refund $ 5,857 *
(j) V2 Magna Group stock $15,592 *
(k) V2 Mark Twain stock— $12,675 * value as of 6-1-99
(1) V2 of 1989 tax overpayment, $ 500 ** J. Scoville, Ltd.
(m) Oriental rug no finding ***
(n) Household furniture and furnishings no finding *** in husband’s possession
(0) V2 interest in a boat $ 3,600 **
(p) 1987 Bronco automobile $ 7,000 *
(q) Husband’s share of proceeds from $ 5,250 ** hospital contents investment
(r) First & St. Clair property $ 4,500 *
Mise.
Certificate of deposit— $17,083 **** Jack Scoville, Ltd.
Marital Debt Assigned to Husband
Policy loan against cash value of $ 6,945 life insurance awarded to wife
25% share of $980,000 debt on Magna $245,000 Trust 6511 (Popeye’s)
40% share of $50,000 loan to BBJJ $ 20,000 land trust (Stages) made 8-6-90
Note payable to acquire 15% $ 35,000 interest in Stages
Note on Oak Glen apartments $160,000
Property Assigned or Awarded to Wife
Nonmarital Value
1983 Mustang automobile $ 4,000 *
Jewelry no finding
Secretary from the living room
Saddle mirror in basement
Dresser in child’s room
no finding
no finding
no finding
Marital
(a) Keough at Mark Twain
(b) IRA in wife’s name
(c) Cash value in life insurance
(d) Cash value in life insurance ($11,944 minus loan amount of $6,945)
(e) Hunter garage property (amount due from purchaser)
(f) 1984 station wagon
(g) Marital residence with household furnishings
(h) V2 of 1986 tax refund
(i) V2 of 1989 tax refund owed to Jack Scoville, Ltd.
(j) V2 of Magna Group stock
(k) V2 of Mark Twain stock-value as of 6-1-99—
(l) Real estate account—
First Illinois Bank
(m) Oil painting
$ 1,195 *
$34,763 *
$10,099 *
$ 4,999 *
$14,570 *
$ 2,000
no finding ***
$ 5,857
$ 500 **
$15,592 *
$12,675 *
$ 509 **
no finding
Marital Debt Assigned to Wife
Dillards $ 280
Summer camp $ 487
St. John’s Hospital $ 1,200

Because there is no real dispute between the parties as to the classification of the property listed as nonmarital, we will not dwell on the testimony concerning those assets. After a review of the record we further believe that those assets whose values were either stipulated to by the parties or were undisputed in the record need no further discussion. Also, with the exception of the $17,083 certificate of deposit from the sale of the restaurant equipment, there is no specific dispute as to the classification of the assets. Therefore, the balance of our discussion of assets will deal with those from which there was no stipulation, where there is a dispute and the court made no finding as to the value.

Jack Scoville was the primary breadwinner, and Linda Scoville basically assumed the role of the traditional housewife and mother. The Scovilles’ principal source of income was from business ventures and various investments.

Jack holds a 25% interest in the Dlinois State Land Trust 6511 (land trust). The assets of the land trust include two parcels of real estate, one located in Columbia, Missouri, the other in Fairview Heights, Dlinois. The land trust rents its property to the Dardene Corporation, which operates a Popeye’s restaurant at each location. Jack is president of the Dardene Corporation. The gross rents paid by the corporation to the land trust were $133,000 in 1986, $193,000 in 1987, $156,500 in 1988, and $115,600 in 1989. Rents from the Dar-dene Corporation provide the only source of income to the land trust. The United States fiduciary income tax returns for the land trust show total income of $39,080 for 1986 and of $11,397 in 1987. The tax returns for the corporation show that the land trust sustained losses of $67,656 and $116,460 in 1988 and 1989. $105,003 of the loss sustained in 1989 was attributed to depreciation.

Jack testified that the Dardene Corporation functions solely as the operating entity for the two Popeye’s restaurants. He testified that he owns a 25% interest in the Dardene Corporation. However, Jack’s bookkeeper of 17 years, Delores Buttry, testified that Jack is the sole shareholder of the Dardene Corporation. Jack testified that as a 25% shareholder in the land trust, he owes one-quarter of the land trust’s indebtedness to Magna Bank, or $245,000. At the time of the hearing on the property distribution in August 1990, Jack testified that business had been down at the restaurants; the business at the Popeye’s in Fairview Heights had decreased 12% from the year previous, while the Columbia Popeye’s had sustained its earnings.

Jack testified that he values the Fairview Heights Popeye’s at $800,000 and the Columbia Popeye’s at $600,000. Jack and his partners paid $650,000 for the Fairview Heights operation and $700,000 for the Columbia operation. Jack testified that for the past 18 months he and his business partners have actively sought a purchaser for the Columbia store. At one point a purchaser was interested, and the partners were willing to sell the property at Columbia, at a $300,000 loss, but the purchaser was unable to obtain financing.

Another business venture which provides Jack a major source of income is Stages Nightclub, otherwise referred to as the BBJJ Land Trust. Jack held a 25% interest in the venture until 1988 when he purchased an additional 15% interest from William Killian. Jack owes Killian $35,000 for that purchase.

Jack testified that the only indebtedness on the Stages property is a $50,000 loan which was made in August 1990 in order to remodel the nightclub. Jack admitted that in the April 1990 financial statement he prepared in order to obtain a bank loan, Stages is valued at $800,000, which would make his share in the property worth $320,000. Jack testified, however, that his financial statement reflected an overvaluation of the property, and that the actual value of his interest in the property is $200,000. In his February 1990 financial statement Jack projected that the 1990 income from Stages would be $80,000. In September of 1990 he testified that this projection was inaccurate because during the first eight months of 1990, Stages realized an income of only $30,000. Jack testified that the bulk of his income is derived from Stages; however, due to decreasing profits he had not had a dividend from there since April of 1990. According to BBJJ Land Trust tax returns, Stages’ gross income decreased in 1989 as compared to years previous. In 1985 the gross income of the BBJJ Land Trust was $206,274; in 1986 $290,633; in 1987 $262,735; in 1988 $274,815; and in 1989 $144,769. According to Jack’s personal financial statement, his monthly income from Stages dropped from $5,000 to $2,000.

The parties purchased several pieces of real estate during the marriage, and they stipulated that a parcel located at First and St. Clair had a value of $4,500. Jack also holds a one-fifth interest in a vacant lot referred to as “Tim and Joe’s lot.” Jack testified that this vacant lot has been for sale for two years at an asking price of $135,000, but no one has expressed an interest in purchasing the property. Jack paid $12,000 for his one-fifth interest in the lot. There is no outstanding mortgage on the property.

The Oak Glen apartments in Belleville is yet another real estate investment. Jack testified that he owes the entire mortgage of $155,000 on the property, and that the monthly mortgage payment is $1,633. He testified that in 1989 he had to pay $11,200 for taxes and insurance on the property and that the apartments are operating at a loss. There are eight apartments in the complex with rents ranging from $275 to $333. The net receipts for the Oak Glen apartments admitted into evidence were: January 1990—$1,699; April 1990—$272; June 1990—$936; July 1990-$892; and August 1990-$615.

The parties stipulated that the property known as the Gross Avenue lot is classified as nonmarital property because Jack purchased it prior to the marriage. Jack testified that this is a vacant lot and is valued at approximately $1,500. The parties also stipulated that some property located in Pike County and a one-eighth interest in a hog bam there were nonmarital property because they were awarded to Jack through his father’s estate. In addition to the one-eighth non-marital interest Jack holds in the hog barn through his father’s estate, Jack owns a one-half marital interest in the hog bam. Jack purchased a one-half interest in the hog bam in 1983 for $26,500. He testified that he receives approximately $300 net per month in rent from the tenants on the property. Jack had an offer to buy the property at $40,000, but he turned it down because he is asking $84,000 for the place.

The Hunter garage property was purchased by the parties during the marriage, and Jack testified that it was recently sold bond-for-deed. The parties stipulated that as of August 1990, the balance due on the purchaser’s note was $14,570, and the last $400 payment was due from the purchaser on September 1,1994.

There was some dispute about the classification of a certificate of deposit in the business known as Jack Scoville, Ltd. (Scoville Cafe). The court made no finding as to the classification of the asset but awarded it to Jack, whose family established the Scoville Cafe in 1929. Jack’s brother-in-law and partner in the business, Charlie Cha-tham, quit in 1972. Charlie wanted nothing for his share in the business, so Jack did not have to pay for Charlie’s interest. In 1974 Jack incorporated the business. Jack testified that he held 80% and Linda held 10% of the stock. Jack was president of the corporation and performed services with respect to the corporation. Linda was named as secretary-treasurer of the corporation and at times worked as a cashier at the cafe. Jack testified that when Linda worked she was on the payroll and received an hourly wage.

In approximately 1984 the business was sold. The corporate tax return for 1988 shows total assets of Jack Scoville, Ltd., of $44,283. Jack’s bookkeeper, Delores Buttrey, testified that of the reported assets, $26,000 is represented by a note made payable by the purchaser of the restaurant. Buttrey and Jack both testified that the note is un-collectible. The only realized net asset of the business is a certificate of deposit valued at $17,083 as of December 1989. This certificate of deposit represents the proceeds of an auction of equipment used in the operation of the Scoville Cafe. As of July 31, 1990, Jack had spent $13,075 of that account. There was little if any testimony as to how the money was used.

The fair market value of the marital home was stipulated by the parties at $125,000 to $128,000, with the parties free to admit evidence demonstrating a lesser or higher value on the home. Jack’s personal financial statement prepared by him and submitted to the First Illinois Bank just seven months prior to the hearing shows the value of the home at $150,000. The home was built in 1947. There is no outstanding mortgage on the home. Linda lives in the residence with her daughter.

Jack testified that the roof is 19 years old, the furnace is 15 years old, and the air conditioner was replaced between 1982 and 1984. Photographs of needed repairs were admitted into evidence. The photographs and Linda’s testimony demonstrate that there is a crack in the master bedroom closet and that the ceiling in the living room is deteriorating and needs replastering. Linda testified that the living room ceiling is adjacent to her bedroom closet, and it appears as if the cracked walls and the deteriorated ceiling problems are related. The ceiling in the guest bathroom has a moisture problem, and the paint is peeling. The garage ceiling and the outside trim need scraping and painting. All the window frames in the house are in need of repair. Linda also testified that the basement shower leaks and that a water pipe which was damaged when the parties remodeled causes problems. The basement carpet is deteriorated and needs replacing.

Linda testified that the damage to the residence has worsened since the parties separated. She has made minimal repairs to the residence because of her financial situation; however, she did scrape a portion of the garage ceiling and had an electrician and a plumber perform a few minor repairs. Both parties testified "that if the repairs are made on the home its fair market value will increase, but that if no repairs are made the fair market value will decrease.

With regard to the household possessions, Linda testified that she destroyed an oil painting which was purchased during their marriage. She did not know what the painting was worth. Jack testified that he paid $500 for the painting.

Jack states in his brief that he accepts the values of the household furnishings as stated in the wife’s response to interrogatories: $3,699 in the wife’s possession, and $4,220 in the husband’s possession. Jack argues, however, that the microwave oven purchased by Linda for $366 in 1989 should be added to the list of property in her possession. Furthermore, Jack argues that the $500 oil painting which Linda destroyed should be included in her list of furnishings.

Another item of personalty, whose value is disputed, is the oriental rug. Jack purchased the rug in the spring of 1990 for $1,100. He hopes to sell the rug for $2,500, but he has had no offer.

As for the parties’ current living arrangements, Jack is renting an apartment for $440 per month. His personal financial statement shows his net worth at $1,647,088. Jack testified that this amount is exaggerated because when he prepared it he overvalued his assets in order to obtain a loan. Jack testified that his income is basically derived from Stages Nightclub. Although he holds an interest in the Pike County real estate through his father’s estate, Jack testified that his mother receives all the income from that property. Jack’s personal financial statement shows the value of the Pike County real estate at $3 million and shows Jack as having a 25% interest in the property. Jack testified that he could “make a case” for the value of $3 million but that this was simply an arbitrary figure he had assigned to the property. Jack testified that he receives $1,000 per month in farm rental income from other property also bequeathed to him by his father.

When the parties married, Linda was working for Dow Chemical as a clerk. She worked there for five years before going to work at the State’s Attorney’s office for a year. She then worked as a clerk for the Teamsters for approximately six years. When their daughter was bom, both Jack and Linda decided that Linda should stay home to care for the child. Linda worked as a homemaker for 14 years and did the family shopping, meal preparation, house cleaning, child care, and house management. Occasionally, Linda would work as a cashier at Scoville’s Cafe, and she would substitute for Jack’s secretary when his secretary was on vacation.

Linda has no special training or skills and is currently employed as a department store sales clerk earning $5 an hour. Linda testified that she earns approximately $383 per month and receives no benefits. Linda is currently enrolled in a three-year nursing program and hopes to earn a nursing degree. Linda has five college credits and anticipates it will take her three years to earn her degree if she is able to attend full time. It will take five years if she is required to attend part time. The three-year nursing program includes one year of liberal arts studies. The estimated cost of the remaining two years in the nursing program is $4,362.40. While she is working or attending school, Linda pays a babysitter $2 an hour to stay with her daughter.

Linda testified that since the separation her style of living has changed. She has cut back on expenses and tries to live within a budget. During the marriage, Linda did not have to concern herself with such matters as Jack provided sufficient income to meet the parties’ needs. Since the parties separated, Linda has incurred a department store bill of $280 for clothing for her daughter. Linda owes $487 for her child’s summer camp. She also owes St. John’s Hospital $1,200 for a program on alcoholism in families. Linda testified that she contributes approximately $125 per month to her church. She testified that she has cut back on contributions to other organizations even though she frequently made such contributions when she was married.

The first issue on appeal concerns the trial court’s division of property. Linda argues that the trial court abused its discretion in distributing the property because she received a substantially disproportionate award.

Under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (the Act), the court is directed to divide marital property upon dissolution of marriage in “just proportions considering all relevant factors.” (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) One relevant factor the court considers is the value of the property set apart to each spouse. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(2).) While the division of property should never be reduced to pure numbers, under certain circumstances unequal proportions are an indication that the marital estate is inequitably distributed. In re Marriage of Hobbs (1982), 110 Ill. App. 3d 451, 456, 442 N.E.2d 629, 632.

While the trial court did not make a specific listing of its award of the various assets to the respective parties, it is clear from the record that the following listing is an accurate summary of the court’s award of the marital property. The trial court also failed to assign a value to several of the assets, some of which have substantial value. From the imony and the exhibits we can estimate a range it. of values for each

Jack’s Marital Assets Highest value Lowest value
(a) BBJJ land trust (Stages) $320,000 $200,000
(b) Magna Trust 6511 (Popeye’s) $350,000 $300,000
(c) Oak Glen apartments $160,000 $160,000
(d) 1989 personal income tax $ 11,000 $ 11,000 overpayment
(e) IRA in husband’s name $ 29,914 $ 29,914
(f) Dow Chemical stock $ 11,795 $ 11,795
(g) V2 interest in hog barn $ 42,000 $ 42,000
(h) Vs of a lot (Tim & Joe’s) $ 27,000 $ 12,000
(i) V2 of 1986 tax refund $ 5,857 $ 5,857
(j) 1h Magna Group stock $ 15,592 $ 15,592
(k) V2 Mark Twain stock— value as of 6-1-99 $ 12,675 $ 12,675
(1) V2 of 1989 Scoville, Ltd., tax overpayment $ 500 $ 500
(m) Oriental rug $ 2,500 $ 1,100
(n) Household furniture $ 4,220 $ 4,220
(o) V2 interest in a boat $ 3,600 $ 3,600
(p) 1987 Bronco automobile $ 7,000 $ 7,000
(q) Hospital investment $ 5,250 $ 5,250
(r) First & St. Clair property $ 4,500 $ 4,500
(s) Certificate of deposit-jack Scoville, Ltd. $ 17,083 $ 4,009
Subtotal: $1,030,486 $831,012
Less Jack’s Marital Debt: $466,945 $466,945
Net Award: $563,541 $364,067
Linda’s Marital Assets Highest value Lowest value
(a) Keough at Mark Twain $ 1,195 $ 1,195
(b) IRA in wife’s name $ 34,763 $ 34,763
(c) Cash value — life insurance $ 10,099 $ 10,099
(d) Cash value — life insurance $ 4,999 $ 4,999
(e) Hunter garage property $ 14,570 $ 14,570
(f) 1984 station wagon $ 2,000 $ 2,000
(g) Marital residence $150,000 $120,000
(h) Household furnishings $ 3,699 $ 3,699
(h) V2 of 1986 tax refund $ 5,857 $ 5,857
(i) V2 of 1989 tax refund-jack Scoville, Ltd. $ 500 $ 500
(j) V2 of Magna Group stock $ 15,592 $ 15,592
(k) V2 of Mark Twain stock $ 12,675 $ 12,675
(1) Real estate account— First Illinois Bank $ 509 $ 509
(m) Oil painting $ 500 $ 500
Subtotal: $ 256,958 $ 226,958
Less Linda’s Marital Debt: $ 1,967 $ 1,967
Net Award: $ 254,991 $ 224,991

If we assign the lowest values to the marital assets ($364,067 and $224,991), Jack’s award is 62% of the estate while Linda’s award is 38%, a 24% differential. If we were to apply the highest values ($563,541 and $254,991) to the assets, the distribution to Jack and Linda is 69% and 31% respectively, a 38% differential. Assuming, arguendo, that the trial court accepted the figures most advantageous to the husband, i.e., the lowest values to Jack’s assets and the highest values to Linda’s assets ($364,067 and $254,991), the distribution is 59% to Jack and 41% to Linda, an 18% differential.

The touchstone of proper apportionment is whether it is equitable in nature, with each case resting upon its own facts. (In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 790, 560 N.E.2d 374, 378.) While the value of the property is but one element to consider in ascertaining an equitable distribution, that element considered with other relevant factors demonstrates that the trial court’s decision in this case was an abuse of discretion. Under section 503(d) of the Act, a court may also consider the following factors when apportioning property: each spouse’s contribution to or dissipation of the marital property; the duration of the marriage; the relative economic circumstances of the parties; the age, health, station, occupation, amount and sources of income, vocational - skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each spouse for acquisition of capital assets and income, and the tax consequences of the property division upon the respective economic circumstances of the parties. Ill. Rev. Stat. 1991, ch. 40, par. 503(d).

This marriage was 22 years old at the time of its dissolution. Although the husband was the primary breadwinner, a spouse’s greater financial contributions do not necessarily entitle him or her to a greater share of the marital assets. (In re Marriage of Rapacz (1985), 135 Ill. App. 3d 1045, 1049, 482 N.E.2d 441, 444.) The spouse’s contributions as a homemaker should be considered. In a long-term marriage, the source of the assets in acquiring marital property becomes less of a factor, and a spouse’s role as the homemaker becomes greater. (In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 560 N.E.2d 374.) In this case the wife contributed substantial services as a homemaker over the duration of the 22-year marriage.

Although Linda worked outside of the home during the early years of the marriage, after their daughter was bom they agreed that Linda should adopt the role of a traditional housewife and mother. Linda’s skills outside this role are minimal, and she has entered school in order to improve her chances at employment. While Jack testified that the income from his investments is waning, Jack did acknowledge that the decline in income from the Columbia Popeye’s could be due to the present economy and that the Fairview Heights Popeye’s was sustaining its income. Jack testified that Stages’ income has decreased due in part to greater competition in the business. Recent remodeling of the operation will, hopefully, attract customers and, hence, increase income.

None of the assets awarded to Linda, with the exception of accounts earning interest, are income producing on their own. Linda argues that she stands to suffer significant tax consequences if she attempts to convert the property awarded to her into income-producing property. Jack concedes in his brief that invasion of the Keough and the IRA would result in tax penalties. Unlike Jack, Linda has minimal nonmarital assets. While Jack testified that his mother receives all the income from the Pike County real estate, he does hold an interest in the property. At one time he estimated the total value of the Pike County property at $3 million.

Regarding the physical health of the parties, Linda testified that she recently experienced a bad pap smear and has had inpatient procedures performed at her doctor’s office. No testimony was presented to indicate that Jack has any physical or emotional condition which would impair his income-producing ability.

While the trial court did not state the relevant factors it considered in making the distribution of assets, the record does reflect the value of the parties’ resources, the age of the parties and their health, the duration of the marriage, petitioner’s homemaking contributions, the disparity of the parties’ earning potential subsequent to the dissolution, and the custodial award of the minor child to petitioner. After reviewing the record and the factors in section 503(d) to be considered in the division of marital property, we conclude the apportionment of marital property made by the trial court in this case was an abuse of discretion. On remand, we direct the court to increase petitioner’s awarded share of marital property to a just proportion of the estate.

Linda Scoville next contends that the trial court erred in setting the maintenance award at $450 per month payable for the next four years.

“A court may award maintenance only if a spouse: (1) lacks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs, and (2) is unable to support [herself] through appropriate employment ***, or (3) is otherwise without sufficient income.” (In re Marriage of Schuster (1992), 224 Ill. App. 3d 958, 970, 586 N.E.2d 1345, 1354; Ill. Rev. Stat. 1991, ch. 40, par. 504(a).) The court in this case made no express findings of fact in awarding maintenance. We have already determined that the property distribution in this case was inequitable and that the trial court must reapportion the marital assets. Because the issue of maintenance is related to and dependent upon the distribution of marital property, we believe it inappropriate to review this issue. The issue of maintenance should be considered by the trial court in view of the reconsideration required by this opinion.

Other assignments of error have been urged regarding attorney fees and child support which Jack was ordered to pay. Since these issues are related to and dependent upon the distribution of marital property, we believe it is inappropriate to review these issues in this appeal and express no opinion as to the merit of these issues. They should be considered by the trial court in view of the reconsideration required by this opinion.

Accordingly, the judgment of the circuit court of St. Clair County is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

W. LEWIS and H. LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    GOLDEN RULE INSURANCE COMPANY, Plaintiff-Appellee, v. RONALD J. OLSON, Defendant-Appellant.
    Fifth District
    No. 5—91—0503
    Opinion filed August 31, 1992.
    Rehearing denied September 30, 1992.

      Terry C. Kaid, of Woodcock, Kline & Kaid, P.C., of Mt. Carmel, for appellant.
    Guy E. McGaughey, Jr., of McGaughey & McGaughey, Ltd., of Lawrenceville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Golden Rule Insurance Company, brought a declaratory judgment action in the circuit court of Lawrence County, challenging the enforceability of a health insurance policy issued by plaintiff to defendant, Ronald J. Olson. Plaintiff alleged in its complaint that the policy was void ab initio because of certain misrepresentations made by defendant in his application for health insurance, concerning the extent of defendant’s use of alcohol and the indication of any alcohol abuse on defendant’s part. Based on these alleged misrepresentations, plaintiff rescinded defendant’s policy of insurance, denying coverage of defendant’s medical bills incurred for the alleged treatment of alcoholic cardiomyopathy from August 16, 1989, to October 2, 1989.

Defendant filed a verified motion to transfer venue of this action, on grounds of forum non conveniens, to the circuit court of Cook County. In his motion, defendant stated that he was a resident of Cook County and had made application to plaintiff for health insurance through the Kropp Insurance Agency, which is located in Cook County. The soliciting agent for plaintiff insurance company at the Kropp Insurance Agency was Tom Terrill, who also is a resident of Cook County. The insurance policy premiums were partially paid by defendant’s employer, Chicago Embroidery Company, located in Chicago, Cook County, Illinois, and the premiums were paid in Cook County.

Defendant’s medical treatment, the bills for which were denied coverage due to the rescission of defendant’s policy, was received at Resurrection Hospital, Loyola Medical Center and Foster G. McGaw Medical Center, and each of these facilities is located in Cook County, Illinois. Defendant further stated in his motion that most of the witnesses involved in the proof of plaintiff’s complaint and the defense thereof are more accessible or subject to compulsory process to Cook County due to their location and residence and places of business. Defendant listed these potential witnesses, all of whom reside in Cook County, Illinois:

A. Tom Terrill, Kropp Insurance Agency;
B. Dr. R Patel;
C. Medical and nursing personnel of Resurrection Hospital;
D. Medical and nursing personnel of Loyola Medical Center;
E. Medical and nursing personnel of Foster G. McGaw Medical Center.

Defendant’s medical records and other related information were alleged to be more accessible and subject to compulsory process in Cook County due to their location at the above medical centers.

Defendant alleged that the denial of benefits and the rescission draft by which plaintiff reimbursed the premiums paid under the policy were not issued by plaintiff’s Lawrence County office but by plaintiff’s home office located in Indianapolis, Indiana. Defendant alleged that the only connection Lawrence County has with this cause of action is that the policy of insurance may have been issued from the Lawrence County office. Defendant not only maintained that it would be inconvenient to defend this case in Lawrence County but raised issue with whether he could get a fair trial in this county, due to the fact that plaintiff is one of the major employers in Lawrence County. Defendant stated that Cook County has a far greater connection to the subject matter of the lawsuit than Lawrence County and when all of the above factors are considered, they strongly favor application of the doctrine of forum non conveniens for transferring this cause of action to Cook County, Illinois. Defendant supported his motion for transfer of venue with his sworn affidavit.

Plaintiff filed its response objecting to the proposed transfer of venue to Cook County on grounds of forum non conveniens. In its objection, plaintiff recited that venue was proper in Lawrence County pursuant to section 2—101 of the Illinois Code of Civil Procedure, which provides in pertinent part:

“[Ejvery action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2—101.)

Plaintiff stated that the transaction, or some part thereof, out of which the cause of action arose in the instant case occurred in Lawrence County. Moreover, plaintiff stated that venue was proper in Lawrence County since the home office of plaintiff was in Lawrence-ville, Illinois, the application and initial premium were received in Lawrenceville, Illinois, the application was processed and telephone calls regarding the application were made in Lawrenceville, and the policy was issued from Lawrenceville, Illinois. Additionally, plaintiff maintained that the claims for benefits were received and denied in Lawrenceville and the rescission letter was mailed from Lawrence-ville, Illinois.

Plaintiff cited the 1989 Report of the Administrative Office of the Illinois Courts for the proposition that the number of civil cases filed in 1989 in Cook County was 63,872 while the number of civil cases filed in Lawrence County was 58 and maintained that this factor weighed heavily in favor of denying defendant’s motion. Moreover, plaintiff stated that defendant’s inconvenience should not be considered, attaching the affidavit of John White that C. Fouts, Vicki Co-zart, John Furrow, Duane Risley, Marcia Fuller, Melody Love, Ken-nitta Piper, Johnnielyn Tracy, Nikki Catt, Frankie J. Woodward, Vickie A. Mackey and Neal Chaplin, present or past employees of Golden Rule Insurance Company who live in and around Lawrence-ville, Illinois, were all critical witnesses in the instant case. Plaintiff further noted that the testimony of defendant’s physicians may be presented by evidentiary deposition and so there was no need that they be present at trial. In addition, plaintiff maintained that defendant’s medical records could be certified and thereby produced without any inconvenience to defendant. Moreover, plaintiff noted that all witnesses were apparently subject to compulsory process in Illinois. Finally, plaintiff maintained that defendant could not show that he would not receive a fair trial in Lawrence County, which has a population of approximately 17,000 people, because plaintiff employs a relatively small number of people, 317, at its home office in Lawrence-ville. Therefore, plaintiff argued, the significant factors did not strongly favor defendant and his motion should be denied.

The circuit court denied defendant’s motion to transfer venue by its order of June 20, 1991. The court found that in balancing private-interest factors affecting the convenience of the litigants with the public-interest factors affecting the administration of the courts, the court could find no compelling reason to disallow the exercise of plaintiff’s choice of forum, in view of the fact that venue was proper in Lawrence County. The court noted, however, that the case Golden Rule Insurance Co. v. Manasherov (1990), 200 Ill. App. 3d 961, 558 N.E.2d 543, affirmed a transfer of venue under similar circumstances. The circuit court noted with respect to the Manasherov decision:

“That court seemed to feel the legislature in Section 2—209(4) of the Code of Civil Procedure by allowing a plaintiff to sue an insurance company where he resides evidenced an intent to protect buyers of insurance thereby allowing less deference to an insurer’s choice of forum when same brings an action. If that was the intent the legislature should expand 2—209(4) to only allow an insurance company to sue in the county of residence of the insured. Without that addition one cannot extend 2—209(4) to restrict the rights of an insurance company beyond those of any other citizen.”

Defendant petitioned this court for leave to appeal the June 20, 1991, order pursuant to Supreme Court Rule 306(a)(l)(ii) (134 Ill. 2d R. 306(a)(l)(ii)), which petition was granted on September 3, 1991. On appeal, defendant contends that the circuit court abused its discretion in denying his motion to transfer venue from Lawrence County to Cook County based on forum non conveniens. For reasons stated as follows, we reverse the denial by the circuit court of defendant’s motion to transfer venue to Cook County.

The doctrine of forum non conveniens provides that a court may decline to exercise jurisdiction over a case if it is more convenient to try the case in another forum with appropriate jurisdiction and venue and it would serve the ends of justice. (Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 527, 568 N.E.2d 883, 885, citing Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294.) The doctrine is an equitable one that assumes the existence of more than one forum with jurisdiction over the parties and the subject matter of a case. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105, 554 N.E.2d 209, 211, citing Bland, 116 Ill. 2d at 223, 506 N.E.2d at 1294.) This doctrine is applicable on an intrastate as well as interstate basis since the supreme court’s decision in Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601. The party seeking transfer of venue on forum non conveniens grounds has the burden of showing that plaintiff’s chosen forum will be unduly burdensome or inconvenient to him. Lint v. Missouri Pacific R.R. Co. (1990), 200 Ill. App. 3d 1047, 1049, 558 N.E.2d 702, 703.

In resolving both interstate as well as intrastate forum non conveniens questions, it is well established that the trial court must balance private-interest factors affecting the convenience to the litigants with the public-interest factors affecting the administration of the court. (Griffith, 136 Ill. 2d at 105, 554 N.E.2d at 211; Bland, 116 Ill. 2d at 223, 506 N.E.2d at 1291.) Private-interest factors to be considered are “ ‘the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ ” (Torres, 98 Ill. 2d at 345, 456 N.E.2d at 604, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) Relevant public-interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. (Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211, citing McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 289, 520 N.E.2d 368, 372.) The burden is on defendant to show the relevant factors strongly favor transfer of the cause to another forum. Boner, 142 Ill. 2d at 542, 568 N.E.2d at 892.

Our supreme court has also consistently held that a trial court is vested with broad discretion in determining whether particular circumstances warrant a transfer of a cause from its jurisdiction to another court’s under the doctrine of forum non conveniens and that the trial court’s decision in this regard will be reversed only upon showing that in deciding as it did, the court clearly abused its discretion. (Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 398, 581 N.E.2d 644, 645; Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211; Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 118, 497 N.E.2d 745, 747.) Therefore, the sole issue before this court is whether the circuit court abused its discretion in denying defendant’s motion to transfer venue to Cook County. (Boner, 142 Ill. 2d at 527, 568 N.E.2d at 885.) Our inquiry will focus upon the relative convenience of the available forums, Lawrence and Cook Counties. Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 76, 457 N.E.2d 417, 418.

Of the private-interest factors, we will first examine convenience to the witnesses and parties. We take note of the fact that Lawrence County is located in southeastern Illinois while Cook County is located in northeastern Illinois. We also take note that the controversy involved in the instant declaratory judgment case is the enforceability of defendant’s contract for insurance. In order for the trial court to find that the contract is unenforceable and that plaintiff was entitled to rescind the contract, plaintiff must prove that defendant misrepresented his medical history on his application for insurance, specifically the extent of his use of alcohol and indication of any alcohol abuse on his part. Likewise, for the trial court to find that the contract is enforceable, defendant must prove that he made no such misrepresentations on the application for insurance. It would seem then that the issue of defendant’s prior use of alcohol is pivotal in the instant case and that the testimony of defendant and his doctors, and defendant’s medical records, would be relevant in this regard. Therefore, access to medical records and other sources of proof, which are all located in Cook County, could be obstructed if defendant were forced to litigate the matter in Lawrence County.

In contrast, the affidavit of John White lists areas of possible trial testimony from past and present employees of plaintiff insurance company residing in or about Lawrence County, the vast majority of which involved processing the application, telephone contacts for clarification of certain items on the application, underwriting, and issuance of the policy. None of this testimony appears to relate to the alleged misrepresentation by defendant of any history of alcoholism or alcohol abuse. Indeed, of the 12 past or present employees listed in White’s affidavit, only Mackey, O’Neal and Chaplin, according to the affidavit, had any connection with the decision to rescind the policy based on discovery of defendant’s alleged history of excess alcohol consumption. Mackey, from the Lawrenceville underwriting department, and Chaplin, her supervisor, both rendered opinions that plaintiff would not have issued a policy to defendant had it known of his history of alcohol consumption. O’Neal sent letters to defendant and Terrill, the insurance broker, notifying them that defendant’s policy had been rescinded. Although this testimony might be material to establish the good faith of the insurance company in rescinding the policy, it does not directly relate to the key issue in the case, whether or not defendant misrepresented the extent of his use of alcohol on the insurance application. Therefore, the private-interest factor with respect to the relative convenience of the parties and access to sources of proof weighs heavily in favor of the transferee county.

In addition, defendant has also alleged an inability to receive a fair trial in Lawrence County due to the large economic presence of plaintiff in Lawrence County. Plaintiff argues, however, that Lawrence County has a population of 17,000 citizens and plaintiff insurance company employs only 317 persons at its Lawrence, Illinois, office. We note that defendant attached the affidavit of attorney Terry C. Kaid in support of his memorandum in support of the motion to transfer venue to Cook County. In said affidavit attorney Kaid stated that he had read numerous articles published in newspapers in Lawrence County concerning Golden Rule’s controversy with the Illinois Department of Insurance and that these articles publicized the fact that plaintiff plays a large and significant role in the economic well-being of the Lawrence County area. We find that this private-interest factor weighs in favor of defendant.

Because of the nature of plaintiff's cause of action, it is unlikely that a jury view would be requested by any of the parties, and so this private-interest factor does not weigh more heavily in favor of either party.

Concerning public-interest factors, it is appropriate to consider the congestion of court dockets as a factor of public concern (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 372, 456 N.E.2d 98, 104), and in doing so it is proper to notice the Annual Reports of the Administrative Director to the Supreme Court of Illinois. (Meyers, 113 Ill. 2d at 122, 497 N.E.2d at 749.) Plaintiff notes that in addition to showing a much-increased volume of cases filed in Cook County, the 1989 Annual Report shows that there were 842,762 cases pending in Cook County at the end of 1989 compared to only 1,459 cases pending in Lawrence County. Defendant notes, however, that the 1989 Annual Report of Illinois Circuit Court Calendar Management also shows that an average case in Lawrence County takes 72.0 months to termination while the average case in Cook County is concluded in only 34.2 months. Moreover, given the relative volume of cases processed by each respective circuit court, Lawrence County’s percent of backlogged cases is 90.5% while Cook County’s percent is only 81.4%.

No single circumstance is necessarily dispositive, and each case must ultimately turn on its own set of facts. (Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 228, 478 N.E.2d 370, 372.) Because the determination of whether the circuit court abused its discretion must turn on an examination of the private- and public-interest factors, in toto, we cannot say that the sole fact that far fewer civil cases are filed in Lawrence County than in Cook County strongly favors or mandates plaintiff’s choice of forum in the instant case, especially considering the fact that Cook County is able to process cases more efficiently than Lawrence County, according to the 1989 Annual Report.

Defendant strongly contends that there is no significant connection between plaintiff’s declaratory judgment action and Lawrence County and argues that a case should not be tried in a forum which has no significant factual connections with the occurrence. Our supreme court recently decided, with respect to an “adjacent counties” case, that the denial of a motion to transfer venue was an abuse of discretion where the chosen forum had no apparent connection with the injury for which the litigation was filed. In Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644, plaintiff’s decedent was electrocuted by an uninsulated electrical wire maintained by defendant utility. Plaintiff brought suit in Madison County, and defendant moved to transfer venue based on forum non conveniens to Bond County, plaintiff’s residence and the location of the alleged wrongful death. The appellate court affirmed the denial by the trial court of defendant’s motion to transfer venue, finding that because defendant utility provided electrical power to both the chosen and transferee counties, both counties had an interest in the controversy. (Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939, 946, 558 N.E.2d 509, 513.) Our supreme court reversed the decision of the appellate and trial courts, holding that refusing to transfer venue to Bond County, a county adjacent to Madison County, was an abuse of discretion where plaintiff was not a resident of the chosen forum, the parties’ witnesses and sources of proof were all located in the transferee county, a viewing of the premises might be appropriate in the case and the situs of the injury was in the transferee county and the chosen county has a congested court docket. The supreme court noted that although any county to which defendant provides utility service has an interest in the outcome of the case, the interest of none of these counties is greater than that of the transferee county, where the accident occurred, and that it could see no reason for imposing the jury duty burden on the citizens of Madison County, which has no relation to the litigation. Washington, 144 Ill. 2d at 403-04, 581 N.E.2d at 646-47.

In the instant case, plaintiff argues that Lawrence County has an interest in the litigation because this is where the policy was issued and rescinded. However, as noted above, the issue to be decided in this declaratory judgment action is whether defendant misrepresented on his application the extent of his use of alcohol. This alleged misrepresentation could only have occurred in Cook County, where defendant applied for the policy. Moreover, the medical treatment for which defendant submitted bills to plaintiff insurance company and for which coverage was refused was received in Cook County. In addition, the contact with defendant’s doctors which provided plaintiff with the alleged proof of plaintiff’s misrepresentations took place in Cook County. That the decisions to issue the policy and to rescind it both took place in Lawrence County is inconsequential to the grounds for the rescission of the policy, defendant’s alleged misrepresentation. Therefore, Lawrence County does not have an apparent interest in having the controversy decided locally, and this public-interest factor weighs for the transferee forum, in that Lawrence County would be overburdened with the trial of a case in which it has no significant factual connection.

Plaintiff maintains, however, that it was fully justified in filing this action in its home county of Lawrence, where venue is proper under section 2—101(2) of the Code of Civil Procedure. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—101(2).) It also notes that a plaintiff’s right to select a forum is a substantial one and unless the relevant factors strongly favor the defendant, plaintiff should be allowed to exercise its choice in deciding where to file suit. In deciding a forum non conveniens motion, a court is to take all the relevant factors into account, giving each factor, including plaintiff’s choice of forum, proper deference or weight under the circumstances. Griffith, 136 Ill. 2d at 107-08, 554 N.E.2d at 212.

Defendant argues in response that the relevant factors strongly favor the transferee county and notes that our decision in Golden Rule Insurance Co. v. Manasherov (1990), 200 Ill. App. 3d 961, 558 N.E.2d 543, is dispositive in the instant case because of its extremely similar factual situation. Accordingly, defendant maintains that because the trial court abused its discretion in refusing to follow our decision in Manasherov, its June 20, 1991, order denying a transfer of venue to Cook County must be reversed. In Manasherov we noted that section 2—209(4) of the Code of Civil Procedure provides that one submits to the jurisdiction of this State by “[contracting to insure any person *** located within this State at the time of contracting” (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(4)), and that section 2—103(e) of the Code of Civil Procedure provides that “[ajctions against any insurance company incorporated under the law of this State or doing business in this State may also be brought in any county in which the plaintiff *** may reside” (Ill. Rev. Stat. 1987, ch. 110, par. 2—103(e)). We also noted that only in suits against insurance companies are plaintiffs given the additional choice of filing suit in the county in which they reside and that this is a significant exception to the general principles of the venue statute, which is designed to insure that an action be brought either in a location convenient to the defendant, by providing for venue in the county of residence, or convenient to potential witnesses, by allowing for venue where the cause of action arose, citing Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88, 91. We found that these two sections of the Code of Civil Procedure evidenced a legislative intent to protect the buyers of insurance and that this was an additional reason to afford less deference to the plaintiff’s choice of forum in a declaratory judgment action brought by an insurance company. Manasherov, 200 Ill. App. 3d at 969, 558 N.E.2d at 547.

The trial court’s order in the instant case indicates that it did not find persuasive our statement in dicta in the Manasherov case that a plaintiff’s choice of forum is entitled to less deference in a declaratory judgment action brought by an insurance company. In its June 20, 1991, order the trial court states: “If that was the intent the legislature should expand 2—209(4) to only allow an insurance company to sue in the county of residence of the insured.”

In Manasherov we found no abuse of discretion on the part of the circuit court in transferring the declaratory judgment suit brought by the plaintiff insurance company against its insured, from Lawrence County to Cook County, the residence of the defendant/insured. Plaintiff sought a declaratory judgment that it was not liable to defendant on a claim for medical and hospital bills incurred on January 8, 1987, in Cook County, for her daughter’s illness. Plaintiff alleged that the insurance application provided that no benefits would be paid for a health condition that existed prior to the date when the insurance took effect and that because the application and premium payment were not received by plaintiff until January 12, 1987, this was the effective date of the policy. The primary factual issue to be decided in the Manasherov case involved representations alleged to have been made to defendant by plaintiff’s agent in Cook County that insurance coverage would be effective upon the mailing of the premium to plaintiff by the defendant.

Defendant filed a motion for change of venue to Cook County alleging that virtually all sources of proof were located either in Cook County or Lake County (a county adjacent to Cook County), including defendant, her husband, her daughter, the hospital, the insurance agency that sold the policy to defendant, and the bank where the check was drawn for payment of the insurance premium. Defendant contended that the circuit court in Cook County was easily accessible to defendant and her witnesses while the expense and inconvenience of defending the case in distant Lawrence County would render it virtually impossible for her to proceed.

Plaintiff argued in response to the motion with an affidavit naming various employees who took part in reviewing, underwriting and issuing the policy and in dealing with defendant’s claims. Plaintiff also argued that the court dockets in Cook County were more crowded than the docket of the circuit court in Lawrence County.

In granting defendant’s motion, the trial court found that the balance of relevant factors strongly favored the defendant because the advantages and obstacles to obtaining a fair trial strongly favor Cook County, as time, convenience and access to sources of proof are much greater there. The court further found that congestion of court dockets has not shown to be any factor which would disfavor any proper venue over another and that the convenience to the parties would be far greater in Cook County, which is near the defendant’s home and near the agent and medical witnesses whose testimony would determine the status of the parties as to insurance coverage.

This court, on appeal, concluded that the trial court did not abuse its discretion in finding that the relevant factors weighed heavily in the defendant’s favor. Although plaintiff argued that its choice of forum should not be disturbed because the policy was sent to and processed at its office in Lawrence County, we found that this activity was not a significant factor favoring plaintiff’s choice of forum because the primary factual issue concerned the representations, if any, made by plaintiff’s agent in Lawrence County. We also noted that the application was obtained in Cook County and mailed from Cook County and defendant’s daughter’s medical treatment took place in Cook County, concluding that the private-interest factors favored defendant. We also agreed that the public-interest factors favored the defendant and stated, “[w]e believe that it is in the best interest of the public that when a dispute arises over a product, here an insurance policy, that is purchased locally, the best interests of justice are served by resolving that dispute in local courts.” (Manasherov, 200 Ill. App. 3d at 967-68, 558 N.E.2d at 546.) We also noted that although Golden Rule was the plaintiff in the instant case, by virtue of the fact that it chose to file for a declaratory judgment rather than defend the claim plaintiff had indicated through her attorney that she was going to assert, we were uneasy about sponsoring a race to the courthouse by offering deference to plaintiff's choice of forum as the prize, and we suggested that in such cases, the arguments for favoring a plaintiff’s choice of forum were less than compelling. Manasherov, 200 Ill. App. 3d at 968, 558 N.E.2d at 547.

Plaintiff responds, however, that our decisions in Golden Rule Insurance Co. v. Merritt W. Kelly (5th Dist. August 14, 1990), No. 89—0494 (unpublished order under Supreme Court Rule 23), of which we can take judicial notice, and Golden Rule Insurance Co. v. Robeza (1986), 151 Ill. App. 3d 801, 502 N.E.2d 1070, are dispositive of our decision in the instant case. Plaintiff also maintains that the trial court’s familiarity with these decisions supported its exercise of discretion in denying a change of venue to Cook County. In Kelly, plaintiff insurance company also filed a declaratory judgment action in Lawrence County, seeking to void a health insurance policy and deny defendant’s claim for benefits because the claim was allegedly submitted for treatment relating to a preexisting medical condition which was not covered under the policy. As in the instant case, plaintiff also alleged that defendant had made a misrepresentation on his insurance application (whether he had other medical insurance in force at the time he completed the application for insurance) and such misstatement could be used to void the policy and/or deny or reduce a claim.

The heading and introduction of defendant’s motion to transfer on grounds of forum non conveniens indicated that defendant sought transfer of venue to Lake County while the prayer for relief requested a change of venue to Cook County. This court noted that although the motion alleged certain facts, it was not verified and not supported by affidavit or other competent evidence. Plaintiff, however, filed a verified response to the motion, which was supported by affidavit and which stated that: plaintiff’s principal place of business and home office were in Lawrence County, the initial premium payment was received in and the policy issued out of Lawrence County; defendant was admitted to a hospital in Mt. Prospect, Illinois, and later transferred to a hospital in Lake County; phone calls from defendant’s wife were made to Lawrence County and calls relating to defendant’s claim were made from Lawrence County; and letters were received from Kelly in Lawrence County and his claims were denied in Lawrence County.

The trial court entered an order following a motion to reconsider filed by plaintiff, finding that jurisdiction over the parties was available in both Lawrence County and Cook County. After considering the relevant factors, the court found that those factors strongly favored Cook County, where plaintiff chose to do business through an agent and where the actual contact between the parties took place, and the court transferred venue to Cook County. The record did not include a report of proceedings of the hearing on the motion to transfer venue.

This court on appeal reversed the trial court transferring venue to Cook County, finding that the trial court abused its discretion because there were no relevant factors, appearing in the record, weighing in favor of Cook County as the most convenient forum in which to hear the case. We noted that the trial court may have considered allegations of fact which were contained in unverified and unsupported pleadings and which may have weighed in favor of Cook County as the appropriate forum, and to the extent that it relied on such incompetent evidence, it abused its discretion. We also stated that we were not implying by our decision that Lawrence County was the only appropriate forum in which to hear the case and that it appeared from the record that there may be facts which, if properly presented, might weigh in favor of trial in Lake County, but that question was not before the court.

In Golden Rule Insurance Co. v. Robeza (1986), 151 Ill. App. 3d 801, 502 N.E.2d 1070, plaintiff insurance company brought a declaratory judgment action in Lawrence County, Illinois, seeking to declare that insurance coverage for Vivian Robeza had never gone into effect because Mrs. Robeza had failed to answer each of the questions on the application and had failed to sign an amendment to the policy incorporating her answer to said question in the presence of plaintiff’s agent. Plaintiff also sought a declaratory judgment that the medical expenses incurred by Mrs. Robeza were not covered under the policy because they arose from a preexisting medical condition, and that the insurance contract should be rescinded due to misrepresentations by the applicant. This litigation was filed on November 5, 1984. Brian Robeza, as administrator of the estate of Vivian Robeza, deceased, was joined as defendant in the Illinois litigation.

The record indicated that on November 2, 1984, the family of Vivian Robeza filed suit in California, alleging, inter alia, tortious breach of an insurance contract. Brian Robeza filed a motion to dismiss the Illinois action under the doctrine of forum non conveniens, which was denied by the circuit court of Lawrence County.

This court on appeal noted that decedent had applied to Golden Rule for a health insurance policy on May 1, 1984, through an independent insurance agent who sold policies for Golden Rule in Macoupin County, Illinois, and the effective date of the policy as issued was May 2, 1984. Shortly after this date, Mrs. Robeza became ill and traveled to San Diego County, California, to stay with her daughter. She was hospitalized in California, where she died on August 1, 1984. This court found that while the case did have contacts with California, the controversy had a legitimate and substantial relation to Illinois, noting that the interests of all the parties in both suits were based upon the insurance policy or actions taken with respect to it. We held that the factors to be considered did not strongly favor the defendant and accordingly found no abuse of discretion on the part of the trial court in denying defendant’s motion to dismiss on grounds of forum non conveniens. Robeza, 151 Ill. App. 3d at 806, 502 N.E.2d at 1074.

Upon review of our decisions in Manasherov, Kelly, and Robeza, we come to the unmistakable conclusion that the Manasherov case controls our decision in the instant case. Without unduly lengthening this opinion, we find particularly noteworthy that as in Manasherov the relevant private- and public-interest factors weigh heavily in favor of Cook County. Moreover, to the extent that the trial court placed undue emphasis on plaintiff’s choice of forum in this declaratory judgment action, in contravention of our pronouncement in Manasherov, we believe it abused its discretion. We also believe our decision is in line with the reasoning of the supreme court in Washington v. Illinois Power that a trial court abuses its discretion in refusing to transfer venue when the chosen forum has no substantial relation to the litigation and the relevant factors weigh heavily in favor of defendant and the transferee county.

We further find that our order in the Kelly case and opinion in the Robeza case are factually distinguishable from the instant case. As we noted in Kelly, the defendant presented only incompetent evidence in support of its motion to transfer venue, and so the only competent evidence the court could consider in deciding the motion weighed heavily in favor of Lawrence County. The Robeza case is distinguishable first as an interstate rather than intrastate forum, non conveniens case. Moreover, the primary issue involved in that case was the failure on the part of the insured to complete the entire application for insurance, and the facts were uncontroverted that Mrs. Robeza applied for the policy in Illinois rather than California. We therefore disagree that these cases support denial of defendant’s motion to transfer venue to Cook County, Illinois.

Under the supreme court’s long-standing definition of abuse of discretion, the decision of the circuit court made in the exercise of its discretion should not be set aside unless the opposite conclusion is clearly apparent. (Bland, 116 Ill. 2d at 233, 506 N.E.2d at 1298 (Goldenhersh, J., dissenting).) Under the foregoing analysis, we believe it is clearly apparent that defendant’s motion should have been granted and accordingly that the trial court abused its discretion. We therefore reverse the June 20, 1991, order of the circuit court of Lawrence County and remand this cause with directions to transfer the instant case to Cook County, Illinois.

Reversed and remanded with directions.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE LEWIS

text:
    MARJORIE BIGGERSTAFF, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Bee Hill Drilling Company, Appellee).
    First District (Industrial Commission Division)
    No. 1—91—1454WC
    Opinion filed January 17, 1992.
    Rehearing denied September 21, 1992.
    Serkland & Muelhausen, of Chicago (James C. Serkland, of counsel), for appellant.
    Evans & Dixon, of St. Louis, Missouri (Edward M. Vokoun, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The claimant, Marjorie Biggerstaff, appeals from the judgment of the circuit court denying her petition for sanctions sought pursuant to section 19(g) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)) (hereafter referred to as the Act). Specifically, she sought from the employer, Bee Hill Drilling Company, attorney fees incurred before the Illinois Industrial Commission (hereafter referred to as the Commission) in the amount of $16,449.16, costs incurred before the Commission in the amount of $2,431.76, and attorney fees incurred in the proceedings before the circuit court in the amount of $1,000. The circuit court found that “in the present case, there is a bona fide dispute as to the method of assessing interest. Equally important, no willful, vexatious or unreasonable delay of payment occurred in the amount due.” The circuit court determined that sanctions under section 19(g) are inapplicable here “since there was neither a refusal to pay compensation without a bona fide dispute, nor an underpayment of the accrued amount without a bona fide dispute.”

Following a hearing on June 14, 1984, the arbitrator concluded in a decision entered on October 22, 1984, that the employer was operating under and subject to the provisions of the Act on February 9, 1983, when its employee, John William Biggerstaff, the claimant’s son, sustained accidental injuries in Indiana causing his death. Having resolved the jurisdictional question raised by the employer in favor of the claimant, the arbitrator determined further that the claimant was dependent upon the decedent for her support. The arbitrator awarded to the claimant the sum of $225.95 per week until the sum of $250,000 has been paid or until the period of 20 years has passed, whichever is greater.

Upon review, in a decision dated August 14, 1986, the Commission found that the contract of hire between the employer and the decedent was entered into in Illinois, but it modified the decision of the arbitrator. The Commission found that the claimant failed to prove she was dependent upon the decedent for in excess of 50% of her total support and found that she was 50% dependent upon the decedent.

Upon review the circuit court set aside the decision of the Commission, ruling in part that the Commission’s finding that the contract of hire was entered into in Illinois was contrary to the law and against the manifest weight of the evidence.

Upon further review, in Biggerstaff v. Industrial Comm’n (1988), 171 Ill. App. 3d 845, 525 N.E.2d 1000, this court reversed both the circuit court’s determination that Illinois lacked jurisdiction over the claim and the Commission’s determination of partial dependency. Because, this court said, the evidence supported only an award of total dependency, the cause was remanded to the Commission with directions to enter an award of total-dependency benefits.

In a decision on remand dated October 13, 1989, the Commission affirmed the decision of the arbitrator dated October 22, 1984, and ordered the employer to pay interest under section 19(n) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n)).

Thereafter, in an application for judgment pursuant to section 19(g) filed on November 29, 1989, the claimant alleged that the sum of $81,122.99 was due and owing on November 3, 1989, as the “total compensation and burial benefit” and that the total amount of interest due on the award as of November 3, 1989, was $21,663.43. The claimant alleged further that, “[bjased on the foregoing, as of November 3, 1989, $102,786.42 was due and owing, against which defendant tendered $88,073.97, or $14,712.45 less than their [sic] liability.” As has been stated, the claimant sought as well attorney fees and costs pursuant to section 19(g) of the Act.

In a 21-page judgment entered on April 1, 1991, the circuit court noted in its statement of facts that

“[o]n December 21, 1989, an additional payment of $14,712.45 was issued by [the employer] to [claimant]. To date, periodic payments are being made by [the employer] consistent with the Commission’s October 13,1989[,] decision.
By [claimant’s] own calculations, as of the date of this motion [sic], [the employer] has made full payment of accrued benefits and interest pursuant to the Commission’s award.”

The claimant does not refute these facts as stated by the circuit court and in her brief to that court recites that on December 21, 1989, the employer tendered $14,712.45. The circuit court said further that, “[a]t this point, the only issues in dispute are 1) [claimant’s] entitlement to a judgment for the unpaid weekly benefits which have fallen due since November 3, 1989[,] [(apparently through November 29, 1989)] and 2) sanctions as provided by Section 19(g).” The trial court described the issue concerning sanctions as

“[wjhether [the employer] can be held liable for penalties and attorneys fees, pursuant to Section 19(g) of the Act, even though, at the time of original tender, all accrued compensation was paid and the only dispute which existed between the parties, at the time of the Application for Entry of Judgment, concerned the appropriate calculation of interest.”

The circuit court determined that the employer could not be held liable for attorney fees and costs pursuant to section 19(g), noting as follows:

“[The employer’s] tender of $88,073.97 to [claimant] on November 3, 1989, did not expose [the employer] to sanctions due to the fact the award was not final until October 13, 1989. The words of Section 19(g) require an award to be final before sanctions can be imposed. A judgment of finality occurs when a lower court issues its judgment pursuant to a mandate (Thomas v. Durchslag (1951), [sic] 410 Ill. 363[, 102 N.E.2d 114]).
On October 13, 1989, the Commission issued a decision on remand order wherein the Arbitrator’s decision was reinstated and the award became final according to Section 19(f), 20 days after the order. Respondent made a payment of $88,073.97 on November 3, 1989, which included $79,373.00 for payment of accrued compensation from the date of the accident through the date of tender. The balance of the monies represented interest calculated pursuant to Sections 19(n) and 19(g) of the Act. [(It appears that the balance of the monies represented $1,750.00 paid as the ‘burial benefit’ and $6,950.98 paid in interest as calculated by the employer.)] On December 21, 1989, 21 days after [claimant’s] Application for Entry of Judgment, [the employer] issued an additional payment of $14,712.45. This payment represented full payment of accured [sic] interest pursuant to the Commission’s award. Therefore, the only dispute which existed between the parties at the time of the Application for Entry of Judgment concerned the appropriate calculation of interests [sic].”

The dispute, the circuit court concluded, was bona fide, concerning the method of assessing interest. The circuit court denied the application for sanctions pursuant to section 19(g) and entered judgment for the unpaid weekly benefits that had become due since November 3, 1989. No issue with regard to those benefits is raised in this appeal.

The sole issue presented for review by the claimant is whether she is entitled to attorney fees and expenses pursuant to section 19(g). The respondent has brought no cross-appeal.

Section 19(g) of the Act provides in relevant part as follows:

“Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorneys fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).

The claimant states in her brief that “[t]he Employer-Defendant contended they [sic] owed less than $21,663.43 in interest and that [claimant] used the wrong formula to compute interest due.” The claimant does not, she says, disagree that a bona fide dispute as to one’s liability would exempt the employer from a judgment for attorney fees and costs. She denies, however, that the dispute was bona fide.

The employer points to the change in section 19(n) effected during the pendency of these proceedings and contends here, as it maintained in the trial court, that “the post-June 30, 1984[,] interest provision can be interpreted as failing to provide for annual interest because it does not use the words ‘per annum’ as specifically set forth in the pre-June 20, 1984[,] provision.” Until June 30, 1984, section 19(n) provided as follows:

“All decisions of the Industrial Commission confirming or increasing an award entered by an arbitrator of the Commission shall bear interest at the rate of 6% per annum from the date of the arbitrator’s award on all compensation accrued. However, the employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(n).)

Thereafter, section 19(n) was modified to provide:

“After June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator’s Decision. Interest shall be drawn from the date of the arbitrator’s award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal.
The employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(n).)

Relying upon principles of statutory construction, the employer argues that

“the legislature deliberately intended to change the way interest is calculated under Section 19(n), especially considering that the statutory language was so drastically changed. The rules of statutory construction further support the [employer’s] interpretation that it can be assumed the word [sic] ‘per annum’ was deliberately stricken and therefore it was the legislature’s intent that interest no longer be calculated on an annual basis.”

Wirth v. Industrial Comm’n (1976), 63 Ill. 2d 237, 347 N.E.2d 136, appears to be essentially indistinguishable from the instant case. In Wirth, tender was made of the full amount of the award within 60 days of the issuance of the supreme court’s mandate remanding the cause for entry of a judgment based on the arbitrator’s award. The claimant sought attorney fees pursuant to section 19(g) of the Act. Holding that the circuit court did not err in denying such fees, the supreme court stated that its examination of the record in Wirth led it to conclude that the delay resulted from the dispute concerning the employer’s liability for interest and not from a refusal to pay compensation within the contemplation of section 19(g) of the Act. Similarly, in the instant case, the delay resulted from the dispute concerning the employer’s liability for interest and not from a refusal to pay compensation within the contemplation of section 19(g). The circuit court did not err in denying claimant costs and attorney fees pursuant to section 19(g) of the Act.

The employer notes that the circuit court made no determination with regard to the correctness of the employer’s interpretation of section 19(n) and asks this court to “make a determination as to the correct interpretation of Section 19(n) as being raised in the context of whether or not a legitimate dispute existed over the amount of interest owing in this case.” However, we need make no such determination in order to resolve the question presented to us for review and, therefore, decline the invitation to determine the correct method of calculating interest pursuant to section 19(n) where there is no need to do so.

The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and EGAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    METTE JORGENSEN, Plaintiff-Appellee, v. DIANA WHITESIDE et al., Defendants-Counterplaintiffs (The City of Chicago, Defendant and Counterdefendant-Appellant).
    First District (4th Division)
    Nos. 1— 90—3218, 1—90—3247 cons.
    Opinion filed June 30, 1992.
    Rehearing denied August 27, 1992.

      Raymond R. Pesavento, of Bullaro, Carton & Stone, of Chicago, for appellant.
    John D. Cooney, of Cooney & Conway, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal arises from injuries Mette Jorgensen, plaintiff, sustained after she was struck by a shuttle bus at the O’Hare International Airport terminal in Chicago. Plaintiff filed a negligence action in the circuit court of Cook County against the City of Chicago (the City), defendant, and codefendants Diana Whiteside, C.W. Transportation Services, Tri-State Tours, Inc., and River Trails Transportation. The City filed a motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) on the grounds that it was immune from liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1987, ch. 85, pars. 3—102, 3—103, 3—104, 3—108). The trial court denied the motion and the case proceeded to trial. The jury returned a verdict in favor of plaintiff and against all defendants, including the City. On appeal, the issues are (1) whether the trial court erred in finding that plaintiff properly stated a cause of action against the City pursuant to the Act, and (2) whether the trial court erred in denying the City's motion for a directed verdict.

We affirm.

On January 10, 1988, plaintiff returned to the United States from her home in Denmark to study chiropractic medicine in Davenport, Iowa. Plaintiff arrived at the temporary international terminal (known as Terminal 4), of O’Hare Airport and proceeded to the chartered TriState bus that was parked in the bus loading zone. She was standing in an area designated by the City as the appropriate bus loading zone. The bus operator directed her to load her luggage in the bay compartment on the driver’s side of the bus. Plaintiff proceeded to the driver’s side of the bus and placed her luggage into the bay. During this time, an O’Hare shuttle bus proceeded through the reconfigured through lane. As plaintiff straightened up, the shuttle bus entered the unprotected bus loading zone and struck her. She sustained injuries which resulted in the amputation of her left leg.

The City had undertaken the design of the temporary terminal in 1985. The international terminal was temporarily located inside the old parking garage structure and the hotel road was converted into passenger vehicle driveways, parking stations, and loading zones. The taxicab and limousine loading zone was located on the left side of a single lane of through traffic, while the bus loading zone was situated on the right side. The design of the terminal resulted in passengers having to load their luggage while standing in direct proximity to the single lane of through traffic. Unlike any other terminal design, the temporary terminal had no separation of arrivals and departures for the vehicle driveways. In addition, the curved roadway required vehicles to turn continuously toward the bus loading zone as opposed to away from that loading zone.

Plaintiff alleged that pursuant to section 3—103 of the Act, the City owed plaintiff a duty to maintain its property in a reasonably safe condition in the adoption of a plan to improve property. Section 3—103 provides that a local public entity is liable if, after the execution of a plan or design for the improvement to public property, “it appears from its use that *** it has created a condition that *** is not reasonably safe.” (Ill. Rev. Stat. 1987, ch. 85, par. 3—103.) Plaintiff alleged that the City undertook a plan to relocate the international terminal and located the bus loading zone in such a manner as to create a condition that was not reasonably safe.

At trial plaintiff alleged that the City was aware that the temporary reconfiguration exposed the loading zones to through lane traffic. As a result, plaintiff alleged the Department of Aviation installed barricades along the limousine and taxicab lane to prevent vehicles from coming into the lane and to separate passengers from the dangers of the through lane traffic. The City did not, however, provide barriers on the right side of the through lane where the bus loading zone was located. Plaintiff also presented evidence that the City had adopted public safety legislation which required the presence of “load zone” attendants to monitor the loading of buses. On the day plaintiff was injured, there were no load zone attendants on duty despite the fact that an O’Hare ground supervisor had requested their presence at the loading zones.

The case proceeded to trial and the jury returned a verdict in favor of plaintiff and against all defendants. On appeal, the City contends that the trial court erred in denying its motion to dismiss on the grounds that plaintiff failed to state a cause of action against the City. Ill. Rev. Stat. 1987, ch. 110, par. 2—615.

A motion to dismiss for failure to state a claim should be granted only if the pleadings fail to set forth facts which will entitle the plaintiff to recovery. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504.) In reviewing whether a motion to dismiss is proper, “all well-pleaded facts will be regarded as true and all reasonable inferences should be construed in plaintiff’s favor.” Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 82.

To properly plead a cause of action in negligence, a plaintiff must allege the existence of a duty, a breach of that duty and an injury proximately resulting from the breach of that duty. (Ward v. Community Unit School District No. 220 (1991), 213 Ill. App. 3d 1008, 1011.) Section 3—102(a) of the Act, which sets forth the City’s duty to maintain its property, provides as follows:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a).

A public entity has a duty to maintain its roadways in a reasonably safe condition and to warn of a condition which endangers the safe movement of traffic. (Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 736-37.) Furthermore, the duty extends to make public improvements, once undertaken, reasonably safe. (Ill. Rev. Stat. 1987, ch. 85, par. 3—103; Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 87.) “Whether the defendant owed a duty to the plaintiff is a question of law to be determined by the court.” Smith v. County of White (1989), 191 Ill. App. 3d 569, 574.

Initially we note “that where there is no duty owing to a plaintiff under section 3—102 of the Governmental Tort Immunity Act, no duty exists under sections 3—103 or 3—104 for allegedly creating an unreasonably dangerous condition and failing to warn of that danger, respectively.” (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 832; see also Curtis v. County of Cook (1983), 98 Ill. 2d 158.) We must therefore determine whether plaintiff was an intended and permitted user of the City’s property under section 3—102(a).

The City contends that plaintiff was not an intended and permitted user of the Terminal 4 roadway under section 3—102(a) of the Act. The City maintains that since plaintiff was using the street as a walkway, it is immune from liability under the Act. The City cites several cases where this court has held that a municipality is immunized from liability where a pedestrian is injured while using a public street as a walkway. (See Risner, 150 Ill. App. 3d 827 (pedestrian was struck by a bus while crossing the street in the middle of the block); Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78 (pedestrian was struck by an automobile while crossing a highway where there was no crosswalk); Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751 (plaintiff was injured as she stepped into the street while attempting to sweep the curb portion of the street).) However, we believe the City’s argument is misplaced. Each of the cases cited by the City involved a plaintiff who was injured while in an area not designated for pedestrian use. The case at bar is distinguishable in that the City specifically designated the property where plaintiff was injured as an area intended for the loading of vehicles.

Our supreme court has stated that in order “[t]o determine the intended use of the property involved ***, we need look no further than the property itself.” (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 426.) We believe the evidence established that plaintiff was an intended and permitted user of the City’s property. According to the Municipal Code of Chicago, a loading zone is defined as “[a] fixed area on any roadway parallel and adjacent to the curb and designated by official traffic signs as the loading area for a particular vehicle type for the expeditious loading of passengers and their baggage.” (Chicago Municipal Code §13—1 (1986).) The City’s own witnesses, ground transportation supervisor Michael Shea and expert witness Willard Alroth, testified that on the day of the injury the property was designated as a loading zone. At the time plaintiff was injured, she was standing in an area specifically designated by the City as a loading zone and was using the area for its intended purpose. We therefore find that plaintiff was an intended and permitted user of the City’s property.

We are not persuaded by the City’s argument that the loading zone applies exclusively to vehicular use and does not contemplate pedestrian use. We believe that Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, is instructive on this issue. In Di Domenico, plaintiff lawfully parked his car parallel to the street curb and fell into a hole as he was retrieving items from his car trunk. The court found that the public entity had a duty to protect pedestrians from injury when walking to their lawfully parked vehicles. (Di Domenico, 171 Ill. App. 3d at 295.) The court stated that “[i]t defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with passengers would use the street area around the parked vehicle for ingress and egress to and from their vehicle.” (Emphasis added.) (Di Domenico, 171 Ill. App. 3d at 295-96; see also Torres v. City of Chicago (1991), 218 Ill. App. 3d 89.) In designating the area where plaintiff was injured as a loading zone, the City must have recognized the necessity of bus operators and passengers using the area to load luggage.

The City next contends that it owed no duty to plaintiff to maintain the loading zone in a reasonably safe condition under section 3—104 of the Act. Section 3—104 provides that a local public entity is not liable for injuries “caused by the failure to initially provide regulatory traffic control devices, *** traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1987, ch. 85, par. 3—104.) The City also maintains that it is immune from liability for its alleged failure to provide personnel to supervise plaintiff’s activities on the roadway pursuant to section 3—108. Ill. Rev. Stat. 1987, ch. 85, par. 3—108.

However, the City’s reliance on sections 3—104 and 3—108 is misplaced and the immunities contained therein do not apply. Plaintiff’s negligence action was predicated on a finding that the City undertook a plan or design that created a condition that was not reasonably safe in violation of section 3—103.

The evidence in this case was not that the City initially failed to provide barricades as contemplated by section 3—104, but that it located the through-lane traffic in a manner that was dangerous. At trial, plaintiff presented evidence that the City erected barricades on the left side of the through-lane traffic to protect the limousine and taxicab loading zone, but not on the right side to likewise protect the bus loading zone. Plaintiff alleged that the City was aware of the dangerous condition created by leaving the right side of the through lane, where the bus loading zone was located, exposed to traffic. Plaintiff further alleged that the City’s failure to exercise reasonable care in the execution of the relocation and placement of the bus loading zone forms the basis of liability.

Citing Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, and Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, the City maintains that it is immune from liability for failing to provide barriers. However, we find these cases distinguishable from the case at bar. In both Newsome and Ross, the public entity had not executed a plan for public improvement which created a condition that was not reasonably safe. The Ross court stated that a municipal corporation could only be liable when it acts to provide public improvements which create an unreasonably dangerous condition. (Ross, 168 Ill. App. 3d at 89.) Here, the City had undertaken a public improvement to relocate the international terminal and located the bus loading zone in a manner that the jury found was not reasonably safe.

Similarly, evidence that the City failed to provide a bus loading zone attendant at the terminal was introduced to establish that the City failed to exercise ordinary care with respect to an undertaking which it had chosen. (Ross, 168 Ill. App. 3d at 87.) Here, the City had undertaken to supervise the control of vehicular traffic, the loading and unloading of passengers by taxicabs, buses, and other public passenger vehicles, and the parking of taxicabs and buses at the airport. (Chicago Municipal Code §13—1 (1986).) Pursuant to this ordinance, the commissioner of aviation adopted regulations regarding the loading and unloading of vehicles at the terminal. The regulation defines a loading zone attendant as “[a]ny person employed by the City of Chicago to monitor vehicles’ loading of passengers and their baggage.” (Chicago O’Hare International Airport Public Traffic Regulations par. 1.4.) Section 4.6.7 of the regulations further required that these personnel be on duty during the time plaintiff was injured.

Where a local entity does not undertake to supervise any activity, it cannot be held liable pursuant to section 3—108. However, in this case, the City by its own ordinance undertook to supervise the loading and unloading of passengers in the terminal. The violation of a public safety ordinance may be used as evidence that the City failed to exercise due care to an intended and permitted user of the City’s property. (See Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 295.) Plaintiff alleged that the City’s failure to provide bus loading zone attendants on the day she was injured was in violation of its own ordinance and was prima facie evidence of negligence.

Plaintiff was entitled to establish that the City was aware of the alleged dangerous condition and that it failed to take reasonable precautions to warn or protect plaintiff from the dangerous condition. The City may not escape liability from section 3—103 of the Act by raising the immunities contained in sections 3—104 and 3—108. Plaintiff is entitled to present evidence that the City, by its action or inaction, executed a plan for the improvement of public property that was not reasonably safe. Construing all reasonable inferences in the light most favorable to plaintiff, we find that the trial court did not err in denying the City’s motion to dismiss this action for failure to state a claim.

Next, the City contends that the trial court erred in denying its motion for a directed verdict or judgment notwithstanding the verdict. “Directed verdicts and judgments n.o.v. ought to be entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 139-40.

The City contends that the Act immunizes it from liability to plaintiff based on the arguments it asserts above. The City further contends that plaintiff failed to prove the elements of a negligence action: duty, breach of duty, and proximate cause.

Having determined that plaintiff was an intended and permitted user of the City’s property and that the immunities contained in sections 3—103 and 3—108 do not apply here, we find the City’s first contention has no merit. We also find that the City owed plaintiff a duty to maintain the temporary international terminal in a reasonably safe condition. Having considered the evidence, as detailed above, in the light most favorable to plaintiff, we believe that there was sufficient evidence upon which the jury could reach its verdict. We therefore find that the trial court did not err in denying the City’s motion for a directed verdict or judgment notwithstanding the verdict.

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

We affirm.

JIGANTI, P.J., and LINN, J., concur.