author: JUSTICE INGLIS JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY P. PTAK, Defendant-Appellant.
    Second District
    No. 2—88—1174
    Opinion filed February 9, 1990.
    REINHARD, J., dissenting.

      John F. Donahue and Joseph T. Bugos, both of Law Offices of Donahue, Sowa & Bugos, of Lisle, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Anthony Ptak, was charged by indictment with aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(a)), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2), and attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1(a)(1)). Following a jury trial, defendant was acquitted of the offense of attempted murder, but was found guilty of armed violence and aggravated battery, and was sentenced to six years’ imprisonment. On appeal, defendant contends that (1) the trial court improperly instructed the jury that a broken glass bottle was a dangerous weapon as a matter of law; and (2) he was denied effective assistance of counsel. We affirm.

At trial, Dennis Lindsey testified that on September 18, 1987, he was living in an apartment with his pregnant girlfriend, Vicky Grissette, and defendant. Lindsey stated that he, Grissette, and two friends were cleaning the apartment when defendant arrived around 4 a.m. Defendant was very angry when he entered the apartment and began arguing with Grissette. Lindsey heard the argument, entered the room, and pushed defendant onto the couch. Lindsey told defendant to leave Grissette alone and began to walk towards the kitchen to get a beer. At that time, defendant hit Lindsey in the head with a beer bottle. The beer bottle broke, and defendant began stabbing Lindsey with the jagged edges of the broken bottle. Lindsey stated that he was stabbed in the left arm, back, and chest. Grisette then got Lindsey out of the apartment and to a hospital. Lindsey stated that he was in the hospital for nearly one week following the attack.

Vicky Grissette testified that defendant arrived at the apartment around 3 a.m. and began drinking beer with Lindsey and a friend in the kitchen. Shortly thereafter, defendant began arguing with Grissette and pushed her once in the chest. Grissette stated that Lindsey and defendant then began their altercation, with Lindsey ending up on the kitchen floor after being cut by defendant’s broken beer bottle. Grissette was able to get Lindsey out of the apartment and into his car, and a friend drove them to the hospital.

Officer James Kaplan of the Addison police department testified that defendant walked into the police station on September 18, 1987. Officer Kaplan stated that defendant “appeared quite disorderly” and had dried blood on his face, hands, and clothing. Defendant told Officer Kaplan that he was involved in a fight with Lindsey and that he stabbed Lindsey with a broken bottle. Officer Kaplan further testified that paramedics were called to the police station to treat a bump on defendant’s forehead.

Dr. Raymond Dieter, a surgeon associated with Elmhurst Hospital, testified that he saw Dennis Lindsey in the emergency room. Dr. Dieter stated that Lindsey had a severe laceration on his left arm, along with smaller cuts on his back, side, and hands. The lacerations resulted in Lindsey losing approximately one-half of his blood. Dr. Dieter stated that without medical treatment, the injuries to Lindsey would be life-threatening.

The State rested its case after Dr. Dieter’s testimony. Defendant’s motion for a directed verdict was denied, and defendant called two witnesses to testify. Defendant did not testify at trail. Following closing arguments, the jury found defendant guilty of armed violence and aggravated battery. Defendant filed a timely notice of appeal.

Defendant’s first contention on appeal is that the trial court improperly instructed the jury that a broken glass bottle was a dangerous weapon as a matter of law. Defendant argues that whether he was armed with a dangerous weapon was an element of the offense which the State was required to prove beyond a reasonable doubt. Defendant contends that instructing the jury in this manner effectively curtailed the jury’s freedom, as the trier of fact, to make an independent assessment of the evidence.

The State disagrees, arguing instead that a broken beer bottle is a per se dangerous weapon in that it is capable of serious bodily harm and has “no ascertainable legitimate use.” As such, the State contends that the jury was properly instructed in this case.

A person is guilty of the offense of armed violence if he or she commits any felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2.) A person is considered “armed with a dangerous weapon” if:

“he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character.” Ill. Rev. Stat. 1985, ch. 38, par. 33A — 1.

Any weapon specifically listed in the definition is considered to be a per se dangerous weapon. (People v. Weger (1987), 154 Ill. App. 3d 706, 712.) A broken glass bottle is not specifically listed in the definition. However, a weapon not listed in the definition can become a dangerous weapon when it is used in a manner dangerous to the well-being of the person threatened and is also of “like character.” (Weger, 154 Ill. App. 3d at 712.) In Weger, the appellate court determined that the trial court erred in holding that a straight-blade razor was a per se dangerous weapon. (154 Ill. App. 3d at 712.) The court noted that even though the razor was easy to conceal and contained a sharp edge, it did have a legitimate use as a shaving device. (154 Ill. App. 3d at 713-14.) As such the State was required to show that the defendant used the razor as a weapon, which the State was unable to do. 154 Ill. App. 3d at 174.

The Weger court specifically relied on City of Pekin v. Shindledecker (1981), 99 Ill. App. 3d 541, in reaching its decision. In Shindledecker, the court had to decide if a device not specifically listed in section 24 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1) was dangerous weapon. The court stated:

“Common sense must be the guide. Such an approach acknowledges the character of the device and its potential for harm, while not being oblivious to the article’s everyday use, the circumstances of its discovery, and in certain cases, the person’s explanation as to its presence or possession. If it were otherwise, a baseball bat, rolling pin, and perhaps a golf club could qualify as bludgeons if a strict definition of that word is employed (See Webster’s Third New International Dictionary 240 (unabr. ed. 1976)). This would lead to obviously absurd results.” Shindledecker, 99 Ill. App. 3d at 574.

The State argues that, applying Weger and Shindledecker to the present case, the trial court properly considered the broken bottle to be a dangerous weapon as a matter of law. We agree.

In the case at bar, defendant used a broken beer bottle to inflict serious injuries upon the victim, using the bottle in a manner similar to a knife or dagger. Furthermore, unlike the straight-blade razor used in Weger, the broken bottle had no ascertainable legitimate use. Since the character of the weapon was such as to support only one conclusion, namely, that the weapon was dangerous, had no legitimate use and was used in a manner similar to a knife or dagger, the trial court properly determined that the weapon was a category I weapon. See People v. Westefer (1988), 169 Ill. App. 3d 59, 61-62.

We are also aware of other court decisions which support our determination that a broken bottle is a dangerous weapon as a matter of law. In People v. Thornton (1986), 145 Ill. App. 3d 669, the trial court, in a bench trial, found that a broken beer bottle, which was used to slice the victim’s ear and neck, was clearly a dangerous weapon for purposes of the armed violence statute. (Thornton, 145 Ill. App. 3d at 671.) The appellate court affirmed the defendant’s conviction, often referring to the broken bottle as a “deadly” or “dangerous” weapon. 145 Ill. App. 3d at 671-72; see also People v. Samier (1985), 129 Ill. App. 3d 966, 969 (knife with blade of less than three inches was a deadly weapon given that knife was used to threaten life of victim on two occasions); People v. Hunter (1973), 14 Ill. App. 3d 879, 888 (jury properly inferred that broken bottle was used as a deadly weapon when the victim’s daughter testified that she swept up broken glass from a beer or pop bottle in area where her father was attacked).

Defendant also contends that the trial court’s instruction to the jury that the broken bottle was a dangerous weapon constituted an improper conclusive presumption. To support his argument, defendant cites Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450. In Sandstrom, the Supreme Court determined that it was improper to give a jury instruction which in effect shifted the burden of proof to the defendant to prove that he did not intend to commit an act. (442 U.S. at 521, 61 L. Ed. 2d at 49, 99 S. Ct. at 2458.) The Court noted that the instruction could constitute either a burden-shifting or a conclusive presumption, with either interpretation violating the defendant’s due process rights. 442 U.S. at 524, 61 L. Ed. 2d at 51, 99 S. Ct. at 2459.

We believe that the case at bar is factually distinguishable from Sandstrom. In Sandstrom, the jury instruction related to the element of intent, an element of the offense that the State was required to prove beyond a reasonable doubt. However, the jury instruction given by the trial court effectively removed this element from the State’s burden of proof, which the Supreme Court determined to be erroneous. (Sandstrom, 442 U.S. at 513-14, 61 L. Ed. 2d at 44-45, 99 S. Ct. at 2453-54.) In the present case, the trial court merely determined that the weapon used, the broken bottle, was a dangerous weapon as a matter of law. This determination did not relieve the State of its burden of proof with respect to the charge of armed violence. In addition, there is an inherent difference between the element of intent (as in Sandstrom), which is an element of an offense that the State must prove beyond a reasonable doubt, and a determination that a physical object (as with the broken beer bottle in the present case) is dangerous as a matter of law. As such, it is our opinion that the broken beer bottle used in the case at bar had no legitimate ascertainable use and was a dangerous weapon as a matter of law. Thus, we disagree with defendant’s contention that the trial court improperly invaded the province of the jury as the trier of fact under the specific circumstances present in this case.

Defendant next contends that he was denied the effective assistance of counsel by his attorney’s failure to have the jury instructed, during voir dire, that his failure to testify could not be considered against him. In order to demonstrate ineffective assistance of counsel, a defendant must show that (1) his attorney’s conduct was professionally deficient; and (2) but for the deficiency, there is a reasonable probability that the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064-65.) Our supreme court has adopted the Strickland standard when dealing with a claim of ineffective assistance of counsel. People v. Albanese (1984), 104 Ill. 2d 504, 526, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.

Defendant cites People v. Zehr (1984), 103 Ill. 2d 472, to support his position that he was denied effective assistance of counsel. In Zehr, our supreme court determined that it was essential for jurors to know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify cannot be held against him. ()Zehr, 103 Ill. 2d at 477.) The court noted that if a juror has a prejudice against any of these guarantees, a jury instruction given at the end of the trial “will have little curative effect.” 103 Ill. 2d at 477.

Defendant asserts that the two-prong test in Strickland is satisfied given that his attorney did not question the potential jurors’ attitudes regarding defendant not testifying at trial, with the result being that defendant did not receive a fair trial. We disagree.

A review of the record indicates that the trial court, on numerous occasions, specifically questioned the prospective jurors concerning possible prejudice or bias that may result from the possibility that' defendant may exercise his constitutional right to refrain from testifying. At the beginning of the voir dire, the trial court informed the prospective jurors that they should listen carefully to the questions posed to each juror because the questions asked of each juror also applied to the rest of them. The trial court informed the first prospective juror that “the Defendant of course since his is presumed to be innocent doesn’t have to present any evidence, they don’t have to call any witnesses but I anticipate they probably will and so you have to listen to both sides of the case, both State side and defense side and then decide who is telling the truth.” Defense counsel also specifically questioned one prospective juror concerning defendant’s failure to testify as follows:

“Q. And what is your attitude or feelings rather about Tony [defendant] testifying or not testifying, would you hold that against him?-
A. Would I hold it against him?
Q. If he did not?
A. If he did not testify.
A. I guess I don’t know.
Q. Do you feel — [?]
A. I guess I wouldn’t hold it against him.
Q. Do you feel he should testify?
A. Yes.
Q. And in the portion of the trial if he chooses not to, would that adversely affect you in the hearing on the trial?
A. I don’t think so.
Q. You don’t think so?
A. No.”

In addition, defense counsel also asked another prospective juror:

“Q. What if Tony doesn’t take the stand, will you hold that against us?
A. No, I don’t believe so.
Q. You hesitated for a second.
A. Just that I was thinking, no, I won’t.
Q. So you don’t demand that Tony testify in order to find him innocent?
A. No, I don’t think I can demand anything.
Q. Well, you are the people that decide the facts, not me, not the Judge, the Judge only makes decisions of law and decides what can be presented and admitted into evidence. You have got the duty to decide guilt or innocence.
A. I guess my opinion is I always would like to hear his side of the story from him but I won’t hold it against him if he didn’t [sic] testify.
Q. But you do understand that the State must prove beyond a reasonable doubt — [?]
A. Oh, right.”

Furthermore, defense counsel asked two other prospective jurors similar questions, with both jurors positively stating that they would not hold defendant’s failure to testify at trial against him.

A review of the extensive remarks and questions made by the trial court and defense attorney to the prospective jurors during voir dire leads us to the conclusion that the concerns expressed in Zehr were satisfied in this case. As the Zehr court noted, the questions need not be asked in any particular form as long as the subject matter of the questions is covered during voir dire. (Zehr, 103 Ill. 2d at 477; see People v. Fox (1988), 177 Ill. App. 3d 602, 610.) The trial court properly exercised its broad discretion in controlling the manner and scope of voir dire, and there is no showing that the procedure utilized was insufficient for discovering impartiality or prejudice. See People v. Jones (1988), 169 Ill. App. 3d 883, 900.

It is our opinion that defendant has failed to satisfy either prong of the Strickland test in this case. Defense counsel’s decision to forego a specific voir dire question concerning the effect of defendant’s failure to testify at trial was not an example of professionally deficient conduct, especially when such a decision may have been a matter of trial strategy. Matters of trial strategy are entitled to great deference on review. (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) This is so because “no two defense attorneys will necessarily agree on the same strategy for a particular case.” (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548.) While we believe that defense counsel’s questions during voir dire concerning defendant’s constitutional right to not testify could have been stronger, they did not rise to such a level to constitute professionally deficient representation. In any event, defendant has failed to demonstrate how he was prejudiced by the events which occurred during voir dire and thus cannot satisfy the Strickland requirement that the outcome of the trial would have been different.

For the above-stated reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN, J., concurs.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s holding that the issue of whether the broken glass bottle is a dangerous weapon as defined in section 33A — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1) is a question of law and that the trial court properly instructed the jury on this question. I further disagree with the majority’s statement that, in determining whether the defendant is “armed with a dangerous weapon” under section 33A — 1, it is proper to consider that the weapon had no legitimate use and how it was used.

Approaching the latter problem first, it is important to recognize initially that we are here concerned with the crime of armed violence, which makes it a criminal offense to commit a felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2; People v. Donaldson (1982), 91 Ill. 2d 164, 168.) The term “armed with a dangerous weapon” for purposes of the armed violence statute is specifically defined as follows:

“§33A — 1. Definitions, (a) ‘Armed with a dangerous weapon’. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character, (c) A category II weapon is a bludgeon, blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon of like character.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1.)

The prohibited weapons are specifically named and include “any other deadly or dangerous weapon or instrument of like character.” This inclusion of other such weapons of like character does not, in my opinion, warrant the conclusion drawn by the majority that it is proper to consider the use of the weapon to determine if it is deadly or dangerous.

The purpose of the armed violence statute and its severe Class X penalty is not only to punish the criminal and protect society from him, but also to deter his conduct — that of carrying the specified weapon while committing a felony. (People v. Alejos (1983), 97 Ill. 2d 502, 509.) It is clear that the legislature did not intend that the “use” of the weapon in the commission of a felony was necessary to commit armed violence, as the mere physical presence of a weapon while a crime is being committed is a sufficient threat to warrant proscription. People v. Haron (1981), 85 Ill. 2d 261, 268.

The fundamental problem with the majority’s reasoning in concluding that in a prosecution for armed violence it is permissible to consider whether the weapon had no legitimate use and how it was used in the particular case in determining if it is a dangerous weapon is that this approach and the cases relied on by the majority fail to observe the distinct statutory definition of “armed with a dangerous weapon” contained in section 33A — 1 and its interrelationship with the purpose of the armed violence offense to punish and deter the carrying of a dangerous weapon while committing a felony. Consequently, People v. Weger (1987), 154 Ill. App. 3d 706, and City of Pekin v. Shindledecker (1981), 99 Ill. App. 3d 571, relied on by the majority, and cases cited in those opinions, which hold that a weapon not specifically listed in section 33A — 1 can become a dangerous weapon when it is used in a manner dangerous to the well-being of the individual harmed, are incorrectly applying the dangerous weapons provisions in other sections of the Criminal Code, the armed robbery and unlawful use of weapons statutes, which are not relevant to the specific definition in section 33A — 1.

What constitutes a dangerous weapon for armed robbery does not necessarily constitute a dangerous weapon under the armed violence statute, wherein categories of dangerous weapons are specified. (People v. Myers (1981), 101 Ill. App. 3d 1073, 1075; People v. Watkins (1981), 94 Ill. App. 3d 749, 753.) I further observe that the committee note under the definition for dangerous weapon in Illinois Pattern Jury Instructions, Criminal, No. 4.17 (2d ed. 1981) (hereinafter IPI Criminal 2d) states that this instruction is not to be given, inter alia, in armed violence cases. In this instruction, the manner and use of the object or instrument may be considered in determining whether it is a dangerous weapon. Thus, there is authority that the specific definition of “armed with a dangerous weapon” in the armed violence statute is distinct from the definition and use of the term “dangerous weapon” in other provisions in the Criminal Code.

For the foregoing reasons, I do not agree that, for those weapons not specifically listed in section 33A — 1 of the Criminal Code, a weapon still can become a dangerous weapon depending upon how it is used and whether it has any legitimate use. I would not follow People v. Weger, relied on by the majority.

The next issue to be addressed is whether, in a jury case, the court or the jury determines whether the broken glass bottle is a “deadly or dangerous weapon or instrument of like character” to the category I weapons, applicable hereto, of a “knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, or stiletto.” (See Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1(b).) The majority concludes that the question is one to be determined as a matter of law and is not to be submitted to the jury, as occurred here when the trial judge gave an instruction based on IPI Criminal 2d No. 11.19, as follows:

“A person commits armed violence when he commits the offense of aggravated battery while armed with a dangerous weapon.
A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a broken glass bottle.”

Defendant objected to this instruction on the basis that whether the broken glass bottle was a dangerous weapon was a factual question for the jury. He did not offer an alternative instruction at trial, although it appears the trial judges believed he was correctly following IPI Criminal 2d No. 11.19 by inserting the words “broken glass bottle” in the second blank provided for in IPI Criminal 2d No. 11.19.

IPI Criminal 2d No. 11.19 provides as follows:

“A person commits armed violence when he commits the offense of_while armed with a dangerous weapon.
A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a__”

The committee note indicates that the name of the alleged dangerous weapon is to be inserted in the second blank. Thus, it would appear that the trial judge followed the direction of the IPI committee. The majority here concludes that a broken glass bottle is a dangerous weapon as a matter of law, citing three cases for this proposition. However, none of those cases involve the issue of how the jury should be instructed on the dangerous weapon question and state propositions of law premised either incorrectly on the use of the weapon (People v. Thornton (1986), 145 Ill. App. 3d 669; People v. Samier (1985), 129 Ill. App. 3d 966), or on an offense other than armed violence (People v. Hunter (1973), 14 Ill. App. 3d 879).

In my opinion, where the weapon in question in an armed violence prosecution is sought by the prosecution to be considered as a “deadly or dangerous weapon or instrument of like character,” this becomes a factual question for the trier of fact. In this situation, the second blank in IPI Criminal 2d No. 11.19 should contain the words “deadly or dangerous weapon or instrument of like character.” In this regard, the trial judge erred in inserting the words “broken glass bottle” in the second blank as that, in effect, conclusively informed the jury that a broken glass bottle is a dangerous weapon. Further, the committee note for use of IPI Criminal 2d No. 11.19 is somewhat misleading as it states the name of the alleged dangerous weapon should be inserted. This comment is correct when the weapon is one specifically enumerated in section 33A — 1 but is inaccurate where the weapon is asserted to be a dangerous weapon under the phrase “other deadly or dangerous weapon or instrument of like character.” Finally, under my analysis, the other deadly or dangerous weapon or instrument cannot just be any weapon but must be “of like character” as one of the weapons enumerated in section 33A — 1.

Having concluded that the issue of whether a weapon not enumerated in section 33A— 1 is a deadly or dangerous weapon of like character is one for the jury, I would also add that initially the judge may, in an appropriate case, have to determine whether, as a matter of law, the question should be submitted to the jury. That is to say that if the judge should conclude as a matter of law that the weapon is not a deadly or dangerous weapon or instrument of like character, there the issue would not be submitted to the jury, and, presumably, the judge would grant a defendant’s motion for a directed verdict on the charge of armed violence. As defendant only raised the issue that the jury should determine if the broken glass bottle was a deadly or dangerous weapon or instrument of like character, I need not determine whether, as a matter of law, the broken bottle was not such a weapon. On this point, however, I wish to amplify on this court’s decision in People v. Westefer (1988), 169 Ill. App. 3d 59, an armed robbery case, on which the State relies for the proposition that where the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. Westefer, 169 Ill. App. 3d at 61-62; see also People v. Skelton (1980), 83 Ill. 2d 58, 66.

As previously stated, a dangerous weapon in an armed robbery case is not the same as those classified in the armed violence statute. However, the citation to Westefer provides me with an opportunity to elaborate on what we stated therein. In Westefer, the narrow issue presented was whether a utility knife used in an armed robbery can be termed a dangerous weapon as a matter of law in the context of a request by defendant for an instruction on the lesser included offense of robbery. (Westefer, 169 Ill. App. 3d at 61.) In presenting the issue to this court, the parties focused only on the character of the weapon and the trial judge’s opinion that it was a dangerous weapon. Both parties only argued whether the weapon was dangerous per se, citing People v. Skelton (1980), 83 Ill. 2d 58, and People v. Dwyer (1927), 324 Ill. 363, and did not raise the broader issue of whether the court could make the determination as a matter of law. That question was not before us.

As the trial judge did not properly instruct the jury, the judgment below must be reversed and the cause remanded for a new trial. I need.not address whether the act of picking up the bottle and breaking the bottle in the course of hitting the victim with it and then stabbing the victim with it is “carrying about his person or otherwise armed with a category I or category II weapon” in order to fall within the meaning of the armed violence statute. Neither the defendant nor the majority raised or discussed this potential issue.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    DARREN M. JOHNSON, a Minor, by His Mother and Next Friend, Judith Ooton, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee (Judith Ooton, Plaintiff-Appellant).
    Fourth District
    No. 4—89—0590
    Opinion filed February 8,1990.
    Rehearing denied March 9,1990.

      Garry W. Bryan, of Ray Moss & Associates, P.C., of Clinton, for appellants.

      Frederic L. Kenney, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by plaintiffs Darren M. Johnson, a minor, by his mother and next friend, Judith Ooton, and Judith Ooton individually, from an order of the circuit court of Macon County granting summary judgment in favor of defendant American Family Mutual Insurance Company. Plaintiff’s amended complaint is framed in six counts. The amended complaint alleges that on or about June 16, 1986, the minor plaintiff was struck by two automobiles while riding his bicycle. One automobile was operated by Scott Vanderlaan and the other by Michael Rogers. The complaint alleges that each of the operators of the automobiles was negligent and their negligence proximately caused injuries to plaintiff exceeding $100,000. Defendant insured Rogers and tendered $100,000, while Economy Fire and Casualty insured Vanderlaan. Economy tendered $25,000.

In addition, Ooton had an automobile insurance policy with defendant which provided $100,000 of liability coverage per person, but did not include underinsured motorist coverage equal to the bodily liability limits. It is alleged defendant’s agents and employees failed to offer such coverage even though such an offer was required by statute. (Ill. Rev. Stat. 1985, ch. 73, pars. 755a — 2(1), (5).) It is further alleged that, had the offer been made, Ooton would have purchased that amount of underinsured motorist coverage. It is further alleged that Vanderlaan was underinsured at the time of the incident.

As a result, recovery in the amount of $75,000 is sought for defendant on behalf of the minor for the minor’s injuries under the theory of failure to offer underinsured motorist coverage (count I), and recovery for $75,000 plus attorney fees for consumer fraud (count II, alleging the failure to offer underinsured motorist coverage in an amount equal to the bodily liability limits constituted a misrepresentation, concealment, suppression, or omission of a material fact within the meaning of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.)). In count III, plaintiff minor requests judgment in the amount of $75,000, plus attorney fees on the theory that defendant’s refusal to honor plaintiff’s claim for $75,000 was vexatious and unreasonable, thereby entitling the minor plaintiff to reasonable attorney fees, costs, and penalties under the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767).

Counts IV, V, and VI are based on the same theories of recovery as counts I, II, and III, respectively. However, counts IV, V, and VI pray for judgment in favor of Ooton, individually, since she was liable for the minor plaintiff’s medical expenses.

Attached to the defendant’s motions for summary judgment as exhibits were answers to interrogatories and portions of the transcript of Ooton’s discovery deposition, wherein it is admitted plaintiffs received $100,000 from Rogers and $25,000 from Vanderlaan. Also attached as an exhibit was one of defendant’s insurance policies, which states in part VI, paragraph 5: “When we pay damages under this policy to a person who also collects from another, the amount collected from the other shall be repaid to us to the extent of our payment.”

Based on this contractual language, defendant took the position plaintiff is not entitled to additional recovery since the payment to plaintiff of $100,000 by Rogers equals or exceeds the $100,000 limit of liability for underinsured motorist coverage had such coverage been included in Ooton’s policy. Defendant also contended that payments from Rogers and Vanderlaan must be set off against the underinsured motorist coverage limits, arguing that, as a matter of law, either the alleged underinsured coverage limits were satisfied or were exhausted. With regard to counts I, II, and III only, defendant’s motion for summary judgment also relies on the fact that Rogers was insured by defendant and, when the claim against Rogers was settled, a release was executed on behalf of Darren Johnson by his guardian Judith Ooton releasing Rogers and defendant from further liability arising out of the June 16,1986, collision.

Plaintiffs filed a cross-motion for partial summary judgment relating to counts I, II, IV, and V. In their motion, plaintiffs relied on Ooton’s deposition in an attempt to establish that defendant failed to offer underinsured motorist coverage to her. Plaintiffs contended that the issue of underinsured motorist coverage applies only to the $25,000 paid by Vanderlaan and, therefore, plaintiffs are entitled to summary judgment as a matter of law.

On June 23, 1989, after considering the memoranda of law submitted by the parties and arguments of counsel, the trial court entered an order wherein the plaintiffs’ motion for partial summary judgment was denied, and defendant’s motion for summary judgment as to counts I, II, and III was granted. The trial court assumed, for the limited purpose of ruling on the motion, that Ooton’s policy is reformed to provide $100,000 underinsured motorist coverage, relying on Fuoss v. Auto Owners (Mutual) Insurance Co. (1986), 148 Ill. App. 3d 526, 499 N.E.2d 539, aff’d (1987), 118 Ill. 2d 430, 516 N.E.2d 268. The court found that only the presence of a second tortfeasor distinguishes the present case from the case in Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 517 N.E.2d 1187, which involved (1) the same policy language as that in the case at bar, and (2) a $100,000 payment from a tortfeasor being applied so as to deny recovery under a $100,000 underinsured motorist coverage provision. The trial court decided that since the insurance contract and public policy do not require the presence of a second tortfeasor to invalidate the $100,000 credit applied to the $100,000 underinsured limits, or to increase the underinsured coverage beyond $100,000, plaintiff can have no recovery under the allegations of counts I, II, and III.

Subsequently, on July 27, 1989, the trial court also entered summary judgment in favor of defendant as to counts IV, V, and VI. As to count IV, the court’s reasoning was the same as in the earlier order. On count V, the court reasoned Ooton had suffered no damages warranting prosecution of a claim under the Consumer Fraud and Deceptive Business Practices Act. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) And as to count VI, the trial court ruled the record contained no evidence of bad faith or vexatious and unreasonable dealings by defendant.

The general principles governing when a summary judgment is a proper remedy are well known and have recently been reiterated by the Illinois Supreme Court in Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304,1307-08:

“Summary-judgment procedure permits a trial court to determine whether any genuine issue of material fact exists (Purtill v. Hess (1986), 111 Ill. 2d 229, 240), but it is not designed to try such an issue (Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 538; Ray v. City of Chicago (1960), 19 Ill. 2d 593, 599). Summary judgment is to be encouraged in the interest of prompt disposition of lawsuits, but as a drastic measure it should be allowed only when a moving party’s right to it is clear and free from doubt. Reed v. Bascon (1988), 124 Ill. 2d 386, 393; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.
If, from the papers on file, a plaintiff fails to establish an element of the cause of action, summary judgment for the defendant is proper. (Brunsfeld v. Mineola Hotel & Restaurant, Inc. (1983), 119 Ill. App. 3d 337, 341; Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 641; cf. Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964-65 (dismissal for failure to state respondeat superior cause of action for employee’s intentional tort; analyzing cases).) If what is contained in the papers on file would constitute all of the evidence before a court and would be insufficient to go to a jury but would require a court to direct a verdict, summary judgment should be entered. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587.) However, in determining the existence of a genuine issue of material fact on a motion for summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Reed v. Bascon (1988), 124 Ill. 2d 386, 393; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.
Inferences may be drawn from undisputed facts (Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1977) , 46 Ill. App. 3d 643, 648, aff’d in part, rev’d in part (1978) , 71 Ill. 2d 428), but an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077, 1078; Marciniak v. O’Connor (1981), 102 Ill. App. 3d 381, 386).”

Where the matter at issue may be decided as a question of law, summary judgment is a proper remedy. (Timm v. Indian Springs Recreation Association (1989), 187 Ill. App. 3d 508, 543 N.E.2d 538; Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 540 N.E.2d 895.) However, merely because the parties have filed cross-motions for summary judgment alleging the nonexistence of genuine issues of material fact, the trial court is not obligated to enter summary judgment. (Mutual Life Insurance Co. v. Washburn (1989), 183 Ill. App. 3d 978, 539 N.E.2d 1278.) Where the only issue concerns the construction of an insurance contract, the cause may properly be decided by summary judgment. Giardino, 164 Ill. App. 3d 389, 517 N.E.2d 1187.

In this case, each plaintiff seeks recovery on three theories: (1) failure to advise Ooton she could get $100,000 underinsured motorist coverage pursuant to a statutory duty to do so; (2) consumer fraud for the same omission; and (3) attorney fees for the vexatious and unreasonable refusal to pay the claim. If the trial court correctly determined, after applying the reasoning in Giardino, that plaintiffs were not entitled to recovery on counts I and IV, then it would seem logical that there could have been no vexatious or unreasonable refusal to pay the claim. And plaintiffs’ brief does not address the question of vexatious and unreasonable refusal to pay, but attacks only the trial court’s construction of the insurance policy. Plaintiffs do not even argue that they should have been allowed to proceed on the consumer fraud counts regardless of the trial court’s interpretation of the policy. It would seem plaintiffs have abandoned any arguments concerning the vexatious and unreasonable refusal to pay the claim as well as whether the trial court properly disposed of the counts alleging consumer fraud.

The underlying facts of this case are not in dispute. On appeal, the only issue is whether the trial court properly construed the policy. In deciding this appeal, it will be assumed that Ooton is entitled to $100,000 in underinsured motorist coverage, although this has yet to be proved. Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268, citing Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956.

Giardino construes language from the underinsured motorist endorsement of the very policy which is the subject of the instant cause. In Giardino, the court stated:

“The pertinent provisions of the insurance policy in this case read as follows:
‘1. We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle.
* * *
3. Underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability less than
the damages you are legally entitled to recover.
* * *
The limits of liability shown in the declarations apply, subject to the following:
* * *
Any amounts payable will be reduced by:
1. A payment made by the owner or operator of the underinsured motor vehicle or organization which may be legally liable.’
If an insurance policy is clear and unambiguous, the words of the policy will be given their plain and ordinary meaning. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5[, 429 N.E.2d 1203].) In the present case, the language of the limitation could not be clearer. Any amount which the defendant could owe pursuant to underinsured motorist coverage is reduced by a payment from the underinsured motorist. The plaintiff’s policy provided underinsured motorist coverage of $100,000, and the underinsured motorist paid $100,000 to the plaintiff. Therefore, according to the policy, the plaintiff is not entitled to a recovery.
The plaintiff argues that the limiting provision is ambiguous because it conflicts with the provision providing coverage. We disagree. The language establishing the underinsured motorist coverage must be read with the limitation to establish the boundaries of coverage. The plaintiff makes much of the fact that the underinsured motorist provision in this policy uses similar language to the now-repealed underinsured motorist provision of the Illinois Insurance Code (Ill. Rev. Stat., 1979 Supp., ch. 73, par. 755a — 1). However, the plaintiff does not argue that the old provision applies to this case, and in fact, admits that the new version of the statute is applicable in this case. In examining the policy and the statute, we further note that the effect of the limitation on payment is to bring the policy in line with the new version of the statute, which allows recovery only when the underinsured motorist coverage is greater than the total liability coverage for bodily injury of the underinsured motor vehicle owner. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).) Therefore, for the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.” Giardino, 164 Ill. App. 3d at 390-92, 517 N.E.2d at 1188.

Plaintiffs suggest that the presence of a second tortfeasor distinguishes this case from Giardino. We agree.

Of significance to the case at bar is the fact that the underinsured motorist definition differs from the statutory definition. The policy defines an underinsured motor vehicle as “a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the damages you are legally entitled to recover.” This definition is more inclusive than the definition in the statute (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3)), which defines an underinsured motor vehicle as:

“[A] motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.”

Under the terms of the policy, it would seem Rogers would be an underinsured motorist; but, under the definition in the statute, he would not be an underinsured motorist. Certainly the statute would control, but any conflict between statute and policy ought to be resolved to the benefit of the insured. The policy can provide coverage broader than the statute, but should not be construed to provide less coverage than the statute requires. And since Rogers is not an under-insured motorist by reason of the statutory definition, the coverages of the two tortfeasors cannot be combined to defeat plaintiffs’ claims to underinsured motorist coverage under the instant policy. The underinsured motorist coverage endorsement provides:

“Any amounts payable will be reduced by:
1. A payment made by the owner or operator of the underinsured motor vehicle or organization which may be legally liable.”

The only underinsured motor vehicle involved in this incident by reason of the statutory definition is that operated by Vanderlaan.

Therefore, plaintiffs should have been allowed to prove their damages in an attempt to establish underinsured motorist coverage. However, even though plaintiffs should have the opportunity to prove their damages, that does not mean plaintiffs would be entitled to a double recovery, for even though Rogers’ liability coverage is not to be taken into consideration in determining whether underinsured motorist coverage pertains to the facts of this case, nevertheless the amount already recovered from both joint tortfeasors will be a setoff against plaintiffs’ total damages to compute the amounts payable.

Joint tortfeasors are jointly and severally liable for the entire damage sustained, and a plaintiff may pursue all, some, or one of the tortfeasors responsible for the injury in order to recover (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197; Chmielewski v. Marich (1954), 2 Ill. 2d 568, 119 N.E.2d 247), but only one recovery may be had. Since the purpose of the statute is to protect an injured person against the risks of a lesser recovery if injured by an insured driver rather than an uninsured driver (Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 452 N.E.2d 49), then the injured person’s own insurer stands in the position of the underinsured tortfeasor to provide excess coverage. Moreover, a settlement with one who is jointly liable may inure to the benefit of another who is also jointly liable, even though that person did not participate in or know of the settlement. (Good Products Co. v. Dwyer (1917), 203 Ill. App. 217.) Therefore, defendant would be entitled to apply the $100,000 received from Rogers, as well as the $25,000 paid on behalf of Vanderlaan, in determining whether plaintiff is entitled to any additional funds. (See Scudella v. Illinois Farmers Insurance Co. (1988), 174 Ill. App. 3d 245, 528 N.E.2d 218; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247; Becker v. Country Mutual Insurance Co. (1987), 158 Ill. App. 3d 63, 510 N.E.2d 1316, appeal denied (1987), 116 Ill. 2d 548, 515 N.E.2d 101; Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 366 N.E.2d 901.) In other words, plaintiffs will have to prove they are entitled to recover damages in excess of $125,000 in order to recover any part of the $75,000 underinsured motorist coverage, assuming of course plaintiffs prove they are entitled to underinsured motorist coverage.

Accordingly, the judgments of the circuit court of Macon County are reversed as to counts I and IV of plaintiffs’ complaint and the cause is remanded for further proceedings. In all other respects, the judgments of the circuit court of Macon County are affirmed.

Affirmed in part; reversed in part and remanded.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE McCULLOUGH

text:
    BERNARD PUGLISI, Plaintiff-Appellant, v. SHIRLEY HANSFORD, Defendant-Appellee.
    Fourth District
    No. 4—89—0345
    Opinion filed February 1,1990.
    Rehearing denied March 9,1990.

      Mary G. Gorski and Bernard A. Puglisi, both of Champaign-Urbana Legal Clinic, of Champaign, for appellant.
    Keith S. Knochel, of Bullhead City, Arizona, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an interlocutory appeal (107 Ill. 2d R. 308) from a trial court order vacating a default judgment on its own motion and setting the cause for a jury trial. Three questions have been certified for interlocutory appeal. They are:

“(a) Do the provisions of the Constitution of the United States, Amendments] VII and XIV, and the provisions of the Constitution of the State of Illinois 1970, Article I, Section 13, prevent the entry of the default judgment against a litigant who makes a timely jury demand but otherwise fails to appear personally or by her legal representative when notice by the opposing party specifically states: ‘If you do not appear, a motion for judgment by default will be made?’[;]
(b) Did Illinois Supreme Court Ride 271 require Plaintiff to prepare and present to the Court a proposed form of written judgment when the Court entered a default judgment as a result of the oral denial of certain pre-trial motions other than in the course of trial and the Court never formally entered a written order denying the pre-trial motions?[; and]
(c) Did Illinois Supreme Court Rule 272 exonerate Plaintiff from his responsibility to present a form of written judgment for the signature of the presiding judge when the Court entered a default judgment at a bench trial call despite Defendant having previously filed a timely and proper jury demand?”

For the following reasons, we answer the questions no, no, and yes.

A brief review of the background of the instant case is necessary to an understanding of our disposition. On June 3, 1988, plaintiff, an attorney practicing in Champaign, filed a small claims complaint seeking payment for legal services allegedly rendered defendant. Defendant, a resident of South Carolina, was served with a summons and complaint on July 11, 1988. On August 12, 1988, defense counsel, a resident of Arizona, made a special appearance and filed a motion to quash service of process. Plaintiff moved to disqualify defendant’s counsel. A hearing was held on these motions. Subsequently, on September 26, 1988, plaintiff sent defendant a notice of a hearing set for bench trial on the cause. The notice stated the hearing was set for November 3, 1988. It advised that a motion for default judgment would be made if defendant failed to appear.

On October 31, 1988, defendant filed a jury demand, paid the filing fee, moved for a continuance, and filed a motion to permit pretrial discovery. Defendant also filed a motion to disqualify plaintiff’s counsel. Defendant’s certificate of service indicates he served the jury demand and notice of the motion on plaintiff’s counsel by placing them in the mail on October 25, 1988. Defendant also served plaintiff with a notice that he would appear on November 3, 1988, for a hearing on his motions.

The court’s docket sheets indicate that defendant did not appear for the bench trial docket call on November 3, 1988. The docket entry states:

“Notice of hearing on file as to bench trial docket call. No appearance by the deft. On Plaintiff’s motion deft adjudged to be in default. Affidavit considered. Judgment entered in favor of plaintiff and against deft in the amount of $1907.49 plus court costs.”

The outstanding motions were not ruled upon.

On December 27, 1988, the court on its own motion vacated entry of default judgment. The docket entry states that, upon review of the file, the court noticed the timely jury demand. Thus, the default judgment was erroneously entered. It set the matter for jury trial.

Plaintiff objected to the December 27, 1988, order, and the court certified the above questions for interlocutory appeal.

Initially, plaintiff argues no federally guaranteed right to a jury trial exists and defendant waived her right to a jury trial, based upon the Illinois Constitution, by failure to appear at the November 3, 1989, hearing. The seventh amendment to the United States Constitution provides that in suits at common law where the value in controversy exceeds $20, the right to a jury trial is preserved. (U.S. Const., amend. VII.) Section 1 of the fourteenth amendment to the United States Constitution provides that no State shall deprive a person of life, liberty, or property without due process of law. (U.S. Const., amend. XIV.) However, the seventh amendment relates only to trials in Federal courts. (Walker v. Sauvinet (1875), 92 U.S. 90, 23 L. Ed. 678.) Similarly, the fourteenth amendment affords a constitutional right of due process but does not mandate a jury trial in all State proceedings. See Chicago, Rock Island & Pacific Ry. Co. v. Cole (1919), 251 U.S. 54, 64 L. Ed. 133, 40 S. Ct. 68.

Article I of the Illinois Constitution provides:

“The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.)

Thus, a jury trial is a right of constitutional dimension in some civil matters. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201.) However, it does not extend to special or statutory proceedings (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581) and may be waived by a failure to make a timely demand (Ill. Rev. Stat. 1987, ch. 110, par. 2—1105). Other actions by the parties may also waive their right to a jury trial. (See generally Raimondo v. Kiley (1988), 172 Ill. App. 3d 217, 526 N.E.2d 457; Rodenbur v. Kaufmann (D.C. Cir. 1963), 320 F. 2d 679.) A waiver is an intentional relinquishment of a known right. It may be express or implied, and arise from actions, words, or conduct of the one waiving the right. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872; Sexton v. Smith (1986), 112 Ill. 2d 187, 492 N.E.2d 1284.) Courts generally will not presume the waiver of constitutional rights. (Raimondo, 172 Ill. App. 3d 217, 526 N.E.2d 457.) Thus, neither the Illinois Constitution nor United States Constitution automatically precludes entry of a default judgment against a party who files a timely jury demand but otherwise fails to appear at trial. The nonappearing party’s actions may constitute a waiver of his previously asserted right. However, under such circumstances, a finding of waiver must be made.

The next questions posed are whether Supreme Court Rule 271 or Supreme Court Rule 272 applied in the instant situation. (107 Ill. 2d Rules 271, 272.) If Supreme Court Rule 271 applied, it necessitated the submission of a proposed written order to the trial court before the ruling became appealable. If Supreme Court Rule 272 applies, the oral judgment would be final at the time notation of it was entered in the record, absent a statement from the court requiring a written judgment. Therefore, the court would have lost jurisdiction to vacate the order after 30 days.

Supreme Court Rule 271 states:

“When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise.” (107 Ill. 2d R. 271.)

Rule 272 states:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” 107 Ill. 2d R. 272.

In the instant case, the motion for default judgment was made because defendant failed to appear at the November 3, 1988, bench trial call. Several motions were outstanding at the time this motion was made and were never ruled upon by the trial court. Additionally, plaintiff does not argue or assert that he did not know that a prior jury demand had been made. The trial court’s docket entries indicate that this prior demand was not in the file at the time it ruled upon the default judgment motion.

The historical and practice notes state that Supreme Court Rule . 271:

“[Rjelates to rulings on motions, except those made in the course of trial. Rule 272 relates to final judgments. While the ruling on a motion may be a final judgment, it need not be. If the ruling is a final judgment entered after trial, rule 272 clearly controls, and unless the court orders that a form of written judgment be submitted to it, the judgment becomes final without further action by the parties. If the ruling is not a final judgment, rule 271 clearly controls, and that rule casts the burden squarely on the party who receives the favorable ruling on a motion to prepare an order or judgment embodying it. There may be some doubt about which procedure is mandated where a pre-trial or post-judgment motion results in a judgment, as both rule 271 and rule 272 by their terms contemplate the entry of judgments.” Ill. Ann. Stat., ch. 110A, par. 271, Historical and Practice Notes, at 541 (Smith-Hurd 1985).

In the instant case, the ruling on the motion for default judgment resulted in a final adjudication of the cause. Supreme Court Rule 272’s language is directed toward those circumstances where all of the issues in the cause are concluded by the ruling of the court. A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely the rights of the parties in the lawsuit. (Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.) A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution of the judgment. (Flores, 91 Ill. 2d 108, 435 N.E.2d 480.) Such a situation occurred in the instant case. The default judgment which the court entered concluded both the issue of liability and the issue of damages.

The purpose of Supreme Court Rule 272 is to resolve questions involving the timeliness of an appeal where there is an oral pronouncement of judgment from the bench. (Swisher v. Duffy (1987), 117 Ill. 2d 376, 512 N.E.2d 1207; McWhite v. Equitable Life Assurance Society (1986), 141 Ill. App. 3d 855, 490 N.E.2d 1310.) Illinois courts have interpreted the rule to mean that, in the interim between the announcement of a final judgment in which the judge requires the submission of a written order and the actual signing of that written order, the proceedings are in a temporary state of abeyance, the oral pronouncement being neither appealable nor binding. The practical effect of the rule is that, prior to the filing of the signed judgment, the court may on its own motion, or on the motion of a party, alter its pronouncement. (McWhite, 141 Ill. App. 3d 855, 490 N.E.2d 1310.) Since the trial court did not require submission of a written judgment, the oral judgment became final when entered of record, November 3, 1988. Swisher, 117 Ill. 2d 376, 512 N.E.2d 1207.

A trial court may on motion set aside any final judgment within 30 days after the entry of it. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1207.) However, the court loses jurisdiction over the cause and its final decree is conclusive after 30 days from its entry. (In re Marriage of Redmer (1982), 111 Ill. App. 3d 317, 443 N.E.2d 1075.) The trial court in the instant case did not have authority to vacate the default judgment more than 30 days after its entry. No plaudits are extended to plaintiff. As stated heretofore, although aware of defendant’s pleadings on file when default judgment was granted, he did not inform the trial court.

We note that our holding does not affect defendant’s right to petition for relief from the judgment pursuant to section 2 — 1401 of the Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.

For the above reasons, we answer the questions certified no, no, and yes and remand to the circuit court for further proceedings consistent with this disposition.

Reversed and remanded.

LUND and SPITZ, JJ., concur.


author: JUSTICE BARRY

text:
    ARTHUR P. DELL et al., Plaintiffs-Appellees, v. THE CITY OF STREATOR, Defendant-Appellant.
    Third District
    No. 3—88—0695
    Opinion filed January 22, 1990.
    Myers, Daugherity, Berry & O’Conor, Ltd., of Streator (Stephen C. Myers, of counsel), for appellant.
    John A. Hayner, of Ottawa, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

The City of Streator (the City), defendant, appeals from a permanent injunction entered by the circuit court of La Salle County which prevents the City from terminating certain medical and life insurance benefits provided to retired, qualified, nonunion employees and office holders of the City.

Since at least 1970, the City of Streator provided to its nonunion employees and office holders the same fringe benefits as had been negotiated with the union representing all other City employees. Beginning in 1975, the collective bargaining agreement with the union provided for the City to pay premiums for life insurance benefits of $2,500 and for health insurance benefits for life for all employees who retire at or after age 55 with at least eight years of service.

The City extended these same benefits to those nonunion employees who thereafter retired and who were qualified by age and length of service. Plaintiffs in this action were all nonunion employees and office holders who retired after 1975 and who otherwise qualified for the benefits. Plaintiffs were informed by department heads and other officials that the City would continue to pay health and life insurance premiums for the lifetime of those employees who qualified at retirement. Each year the City appropriated the necessary funds and paid the premiums for these benefits for plaintiffs until 1987, when the city council voted to require nonunion retirees to contribute the full cost of participating in the City’s group insurance plans.

The seven plaintiffs filed a complaint for an injunction to prohibit the City from terminating the benefits previously received. There is no dispute that these plaintiffs retired between 1975 and 1987 and that all qualified by age and service for the benefits. It is also not disputed that the nonunion employees and office holders did not receive the same pay raises that union members received under their collective bargaining contracts.

The trial court found that the City’s promise to pay medical and life insurance premiums for qualified retirees constituted part of the compensation for which plaintiffs worked. The court enjoined the City from terminating these benefits, and the City has perfected this appeal.

The City contends that there is one determinative issue: Was the agreement to pay health insurance benefits for the life of qualified nonunion employees ultra vires and void because it amounted to a contract made or an expense incurred without a prior appropriation having been made for the contract or expense, in violation of section 8 — 1—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 1—7)? The City relies on the many cases which have held that a City is not bound by a contract which violates the provisions of section 8 — 1—7. E.g., Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 478 N.E.2d 1187 (two-year union contract executed prior to passage of appropriations was void); Mulligan v. Village of Bradley (1985), 131 Ill. App. 3d 513, 475 N.E.2d 1029 (three-year contract with village administrator with no appropriations for salary was void); Hogan v. City of Centralia (1979), 71 Ill. App. 3d 1004, 390 N.E.2d 595 (two-year contract for position of police chief with only one year’s salary previously budgeted and appropriated was void).

The principle which controls the instant case is not the statutory provision asserted by defendant City, but rather is the doctrine of equitable estoppel: Where a contract is within the general power of a corporation but a portion of the contract exceeds the corporate powers and where the City receives a benefit, it is equitably estopped from refusing payment. The Illinois Supreme Court has stated:

“[Municipal corporations, as well as private corporations and natural persons, are bound by principles of common honesty and fair dealing.” McGovern v. City of Chicago (1917), 281 Ill. 264, 284,118 N.E. 3.

The case of McGovern v. City of Chicago, though more than 70 years old, is instructive of the principle. There the City of Chicago had awarded a 13-month contract to McGovern to make needed repairs to city streets, as directed by the superintendent of streets, and to be paid at a particular rate based on area and kind of repairs. The city council did not make an appropriation for the full amount, and at the conclusion of the contract term, the city refused to pay for some $117,394 of work performed on the ground that the contract was void for want of an appropriation and for extending beyond one fiscal year. The supreme court of Illinois ruled that the city had the power to contract to repair its streets, that McGovern had performed in good faith, and that the city was estopped to refuse payment on the ground that it had exercised its power improperly when it had received and accepted the benefit of the contract.

Illinois courts do recognize that those contracts expressly prohibited by law are ultra vires and thus unenforceable. (E.g., De-Kam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550.) However, as we have previously held, a municipality has the power to enter into employment contracts with its employees, and the irregular exercise of that power does not entitle the city to accept its employees’ labor without giving them the full compensation promised. Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362, 404 N.E.2d 942.

We also observe that rights to lifetime life and medical insurance benefits have, in effect, “vested” for those retired employees who are union members as well as for plaintiffs. To deny plaintiffs their vested rights while paying benefits to union members would be discriminatory and might raise a constitutional question concerning impairment of contract rights.

The City also argues that any agreement with nonunion employees was void because there was no formal, recorded action by the city council, but rather some sort of “secret” action. Plainly it was a matter of public record that the city council appropriated the money to pay insurance benefits for these plaintiffs, after their retirement and until November of 1987. That was hardly “secret” action. Also, the union collective bargaining agreement expressly provided for such lifetime retirement benefits, and it was no “secret” that nonunion employees had been promised the same benefits as union employees. The record does not support the City’s contention, and the trial court’s finding that the City had agreed to provide nonunion employees with the same benefits as union employees was not contrary to the manifest weight of the evidence. Furthermore, the evidence is more than sufficient to establish that these lifetime benefits were a part of the compensation for the work performed by these plaintiffs.

The 1987 ordinance of the city council purporting to change the benefits for retired persons will apply only to those nonunion employees retiring after the effective date of that ordinance. The City was properly held estopped to refuse to pay the agreed benefits to plaintiffs. The order of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE WOODWARD JUSTICE McCULLOUGH, PRESIDING JUSTICE BARRY,

text:
    ADAMS TRUCK LINES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Herbert Harney, Appellee).
    Third District (Industrial Commission Division)
    No. 3—88—0652WC
    Opinion filed January 23,1990.
    Rehearing denied March 7, 1990.

      McCULLOUGH, J., and BARRY, PM., specially concurring.

      R.J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for appellant.
    Mark A. Schindler and Peter E Ferracuti, both of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Herbert Harney, filed an application for benefits based upon an injury he allegedly received on October 7, 1985, while employed by Adams Truck Lines, Inc. The arbitrator denied benefits. The Industrial Commission (Commission) reversed the decision of the arbitrator and awarded benefits to the claimant. The circuit court confirmed the Commission’s award. The employer appeals.

Claimant is an over-the-road truck driver. On the morning of October 7, 1985, he drove his truck, which was loaded with 19 pallets of mayonnaise, from his home in Sheridan, Illinois, to Melrose Distribution Company in Melrose Park, Illinois. On the way there, he stopped at a restaurant on Mannheim Road to ask for directions. When claimant arrived at the Melrose Distribution Center, he checked in and waited for an opening to unload the truck. About one-half hour after he arrived, the receiving clerk told him to back his truck into door 6. At the clerk’s directions, claimant broke the seal on the truck, backed the truck in, and proceeded to throw out the empty pallets that were at the very back of the trailer portion of the truck. The pallets, empty, weigh about 40 to 50 pounds apiece, depending on what they are made out of. When claimant picked up the fourth pallet and turned to straighten, he experienced a sharp pain down his lower back and down his right leg. Claimant sat down for a few minutes. He then went to his truck, had a cup of coffee, and took a couple of aspirins. He started to climb up the dock, and he then told the forklift operator that he had hurt his back. He placed a call to his employer, and he informed the dispatcher that he had hurt his back and his leg. In response to the dispatcher’s questions, he informed him that he preferred to see his own doctor but that he felt well enough to drive the truck. At the dispatcher’s direction, he took his empty truck over to another Chicago plant. He then went to his employer’s Chicago office, where he informed the manager that he had hurt his back, and he was going to pick up a loaded trailer and go home and see his doctor. When he went to pick up the loaded trailer, he also telephoned his wife and told her to inform his doctor that he had injured his back and to make an appointment for him. He then drove the loaded trailer home. On the way home, he noted that he had a lot of pain in his lower back and right leg. He was also experiencing muscle spasms.

The next day, October 8, 1985, claimant was examined by Dr. Michael Harney (no relation to claimant). Dr. Harney manipulated him and gave claimant medication for the muscle spasms. Claimant rested the remainder of the day. He left the next day, October 9, 1985, with another load. He noted that he still had quite a bit of lower back pain and muscle spasms.

After resting for a few days, claimant was on his way to deliver a load in Kansas when his condition began to worsen. He called the dispatcher and arranged to switch trailers with a driver in St. Louis. He subsequently returned home with an empty trailer.

Gracelene Dorsett, claimant’s sister-in-law, testified for claimant that she and her husband had spent six or seven hours with claimant on October 5 and 6, 1985. She noticed nothing unusual about the claimant.

Dr. Michael Harney testified in his evidence deposition that in his opinion, given the claimant’s prior history of back pain, claimant had ruptured a disc which was putting pressure on the root nerve at the level of L5, necessitating disc surgery. It was Dr. Harney’s opinion that considering the claimant’s prior history of back pain, the accident of October 7, 1985, produced claimant’s ruptured disc. Dr. Robert Beatty also was of the opinion that the accident of October 7, 1985, was the cause of claimant’s ruptured disc.

David Grant testified on behalf of the respondent. On October 7, 1985, he was employed as a window clerk at the Melrose Distribution Company, Melrose Park, Illinois. On that date, he was working when a man he identified as claimant approached the window in a position as if he were bending down to tie his shoe, hunched over. Claimant informed him that he had hurt his back at a previous stop that morning. Claimant also stated that he had informed his company, and they were sending over a relief driver to take over his position. Grant then assigned him a door so that his truck could be unloaded. The truck was still sealed at that time.

In the afternoon, Grant’s immediate supervisor asked if anyone had been injured at Melrose Park during the day. At his supervisor’s instruction, he documented the incident with claimant.

Following the hearing, the arbitrator denied benefits to the claimant, finding that he had “failed to prove that accidental injuries arose out of and in the course of the employment.”

The claimant appealed the arbitrator’s decision to the Commission. Neither party introduced any additional evidence. The Commission reversed the decision of the arbitrator and awarded benefits, finding as follows:

“Petitioner, a 47-year old over the road driver sustained an injury to his lower back on October 7, 1985 when he picked up a wooden pallet and twisted to stack it. Although he had previously experienced episodes of back pain, the symptoms for which he was treated subsequent to this accident commenced contemporaneously with the accident. The Commission relies on the testimony of Dr. Harney and Dr. Beatty and finds that the accident caused the herniation of the L4-L5 disc for which they have treated him.”

Because there was no evidence in the record as to claimant’s average weekly wage, the case was remanded to the arbitrator for further hearings.

The employer appealed the Commission’s decision to the circuit court of La Salle County, which confirmed the Commission’s decision. This appeal followed.

The first issue on appeal is whether the decision of the Commission was against the manifest weight of the evidence.

The employer notes that in Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, this court held that when the arbitrator’s factual findings are rejected by the Commission without new evidence, an extra degree of scrutiny is required to determine if there is sufficient basis for the Commission’s decision.

In the case before us, the Commission reversed the arbitrator’s decision although no other evidence was presented. The employer argues, therefore, that the Commission found claimant a more credible witness than Grant, whom the employer describes as a disinterested party. Further, the employer asserts that claimant’s testimony was impeached, which casts severe doubts on his credibility.

The employer contends that the case before us presents a set of facts similar to those in Orkin Exterminating Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 753, recently decided by this court. In Orkin Exterminating Co., we reinstated the decision of the arbitrator finding that the claimant, Apponey, was not entitled to benefits. The Commission had reversed the arbitrator’s finding and awarded benefits, which decision was confirmed by the circuit court. We determined that the Commission’s decision was against the manifest weight of the evidence. Specifically, we noted:

“Proof of either unwitnessed accident alleged in this case depended upon the petitioner’s [Apponey’s] testimony regarding the accident’s circumstances and, thus, upon his credibility. His credibility was contradicted by numerous elements in the evidence. For example, on the day of the alleged July 17 accident at the Carnet Grain Company in Beardstown, although the petitioner and his manager after the incident drove together from Carnet to their Galesburg office, the petitioner did not mention to the manager that he had been injured. Additionally, on August 2 when the petitioner was first medically treated for the alleged July 17 injuries, he stated in his chiropractic admission form that his condition had begun approximately two months earlier, i.e., at the beginning of June rather than in [the] middle [of] July as he claimed in seeking benefits. Further, he did not express to his chiropractor on August 2 a connection between his current pain and the July 17 accident and he indicated that he did not know the cause for his complaints.
The petitioner’s credibility was also challenged regarding the alleged August 6 accident at the Keeling residence. For example, when the petitioner called his manager from the Keeling job that day, after the alleged incident, he did not mention the injury which he now claims had occurred. Further, following that alleged disabling accident, the petitioner continued to work for approximately three weeks without giving any notice of the incident to the employer.” (Orkin Exterminating Co., 172 Ill. App. 3d at 757.)

The employer contends that, like Apponey in Orkin Exterminating Co., the claimant’s credibility was severely damaged. The employer points out that one month before his alleged injury, claimant filled out an application for employment with the employer in which he denied having ever suffered a job-related injury, or a back injury, ever receiving workers’ compensation benefits for medical expenses or lost time, or having lost time within the last three years because of an injury. However, on cross-examination, he testified that he had suffered a back injury in Idaho in 1980 while employed by a moving company, for which he received benefits. He also received workers’ compensation benefits for one week in 1984 when he was injured while working in Illinois. Also in 1984, he had applied for a job with Schneider Transportation. On the job application form, the doctor had written slipped disc, 1981, although the claimant recalled telling the doctor only that he had had a back injury, not a slipped disc.

The employer also contends that claimant’s testimony was impeached by that of Dr. Michael Harney. Claimant testified that following the October 7, 1985, injury, he experienced “Charley horses” in his legs. He denied telling Dr. Harney that he had also experienced them after the 1984 injury or that he was experiencing them in both his feet and his legs in August 1985, a month before he applied for work with the employer. Dr. Harney, however, testified that claimant complained of Charley horses on those prior occasions and, further, that he had treated claimant for back problems since 1981.

Finally, employer argues that claimant’s story of being injured in an unwitnessed accident is uncorroborated except for the testimony of his sister-in-law. Moreover, the testimony of David Grant, the window clerk, conflicts with claimant’s version of the accident.

It is well settled that the Commission is the judge of the credibility of the witnesses. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 97 Ill. 2d 35, 43.) While we acknowledge that claimant denied receiving workers' compensation benefits on his job application form, he did admit that he had in fact received them. We note further that claimant and his treating physician, Dr. Harney, presented differing testimony as to when claimant first began to suffer from “Charley horses.” The dispute in this case is whether the plaintiff suffered an accidental work-related injury. In this case, the foregoing matters are collateral and may not be used to impeach the claimant here. Pagel v. Yates (1984), 128 Ill. App. 3d 897, 901.

Moreover, a review of the case before us and Orkin Exterminating Co. shows that there is no comparison between the amount of contradiction and impeachment that served to destroy Apponey’s credibility in that case and the minor amount of the same in the case before us.

It bears repeating that the issue here is whether claimant suffered a work-related injury. Even David Grant, whose testimony the employer would have us believe over that of the claimant, testified that claimant approached him, hunched over, and told him that he had injured himself at a previous stop. While the decision of the Commission makes no suggestion that this case was decided based upon the respective credibility of the claimant and David Grant, assuming as the employer does that this was the case, we can find no reason to disturb the Commission’s decision to believe claimant’s testimony in this case.

In its second issue on appeal, the employer asks this court to establish a rule authorizing the Commission to reverse the decision of an arbitrator as to compensability if that decision is against the manifest weight of the evidence. In support of this proposition, the employer relies on a 1984 amendment to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(e)), two decisions of this court, to wit, Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, and Orkin Exterminating Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 753, and the origins of the rule that governs review by the Commission.

The employer relies on our statement in Orkin Exterminating Co. that an arbitrator’s decision is not without legal effect when determining if a decision of the Commission is against the manifest weight of the evidence (172 Ill. App. 3d at 757), and our statement in Cook that an extra degree of scrutiny will be applied to the record when the Commission overturns an arbitrator’s decision without receiving any additional evidence. (Cook, 176 Ill. App. 3d at 552.) Neither of these decisions establishes any basis for changing the standard of review presently employed by the Commission. Further, the amendment to section 19(e) of the Workers’ Compensation Act makes no change in the standard of review but merely sets forth procedural requirements governing matters on review.

Even if we wished to do so, this court may not refashion a rule of review of our own accord, for any such change would be contrary to the holdings in supreme court cases, which are controlling on appellate court cases. Such a change must come either from our supreme court or from our legislature.

The judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and LEWIS, JJ., concur.

JUSTICE McCULLOUGH,

specially concurring:

Although the facts and circumstances surrounding the incident giving rise to this claim present serious credibility questions insofar as the claimant is concerned, it is the responsibility and duty of the Commission to determine that credibility and to make its decision. We should reverse as pointed out by the majority only when that decision is against the manifest weight of the evidence.

I write this special concurrence because the majority cites Cook v. Industrial Comm’n for the proposition that when the arbitrator’s actual findings are rejected by the Commission without new evidence, an extra degree of scrutiny is required to determine if there is sufficient basis for the Commission’s decision. As stated in my dissent in Cook, I continue to disagree that this should be the law of the State of Illinois. The Industrial Commission has no responsibility to accept additional evidence during its review process except as set forth specifically in the statute, chapter 48, section 19(e). Additional evidence is to be presented to the Commission only when such evidence: “(1) relates to the condition of the employee since the time of the arbitration hearing, (2) relates to matters that occurred or conditions that developed after the arbitration hearing, or (3) was, for good cause, not introduced at the arbitration hearing.” Ill. Rev. Stat. 1985, ch. 48, par. 138.19(e).

If we are to give additional credence to the arbitrator’s decision where the statute requires the authority and decision-making process be in the Industrial Commission, we are again attempting to destroy the legislative purpose of the Industrial Commission’s responsibility.

Likewise as pointed out in the majority decision, we should not accept the employer’s argument that we establish a new rule authorizing the Commission to reverse the decision of the arbitrator if that decision is against the manifest weight of the evidence. This is not provided for in the Workers’ Compensation Act, and any decision to the contrary would be in direct contravention of supreme court cases.

Although I disagree with the Commission’s decision with respect to this incident, it cannot be said to be against the manifest weight of the evidence.

PRESIDING JUSTICE BARRY,

specially concurring:

While I concur with the majority’s conclusion that the Commission did not err in overturning the arbitrator’s decision, I disagree with the majority’s finding that the Commission’s power of review has not changed. The majority rests its position on three conclusions: (1) that Orkin Exterminating Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 753, 526 N.E.2d 861, and Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379, did not establish any basis for changing the standard of review employed by the Commission; (2) that the amendment to section 19(e) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(e)) did not change the standard of review; and (3) that this court’s refashioning of the standard of review would amount to an impermissible overturning of supreme court decisions by an appellate court.

Historically, the law in Illinois has been that on review the Industrial Commission could hear any new evidence the parties cared to introduce and that it was not bound by the decisions of its arbitrators. In 1921, the Illinois Supreme Court ruled that the Commission’s review of an arbitrator’s decision is sui generis, being neither a mere review of the written record made before the arbitrator nor a trial de novo, but a combination of the two. (People ex rel. Oelsner v. Andrus (1921), 299 Ill. 50, 132 N.E. 225.) Subsequently, in Rodriguez v. Industrial Comm’n (1939), 371 Ill. 590, 21 N.E.2d 741, the supreme court held that regardless of whether the Commission hears any testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings. The supreme court reiterated that holding in Garbowicz v. Industrial Comm’n (1940), 373 Ill. 268, 26 N.E.2d 123, and more recently in Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963.

Times change. The Commission’s 1988 in-house study, “Workers’ Compensation Overview 1972-1988,” showed that while in 1950 only 2,951 workers’ compensation claims were pending, by 1988 over 71,000 claims were pending. The study noted that 55% to 60% of the arbitrators’ decisions were appealed to the Commission. It further noted that in 1979, for the first time in its history, the number of cases pending at the Commission had exceeded the number of new cases filed. In a pessimistic discussion of its ability to meet its workload, the Commission stated that the 9- to 18-month delay for oral arguments on review could quickly grow to a 30- to 36-month delay by the end of the fiscal year.

Against this backdrop of an increasing caseload and a lengthening delay between the filing of cases and their final resolution, the legislature amended the Workers’ Compensation Act (Pub. Act 83 — 1125, eff. June 30, 1984). Among other things, Public Act 83 — 1125 increased the number of Commissioners, provided for an expedited hearing procedure for certain cases, and amended section 19(e) to severely limit the types of evidence which could be introduced on review before the Commission. Prior to June 30, 1984, section 19(e) had provided that on review the Commission could consider any evidence the parties cared to submit. (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(e).) The amended section 19(e) provided in relevant part: “Additional evidence may be adduced where such evidence (1) relates to the condition of the employee since the time of the arbitration hearing, (2) relates to matters that occurred or conditions that developed after the arbitration hearing, or (3) was, for good cause, not introduced at the arbitration hearing.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(e).) In enacting Public Act 83 — 1125, Senator Collins stated that the bill “made some great stride[s] in resolving *** the problem that labor had with [the] speedy expedition of claims.” (83d Ill. Gen. Assem., Senate Proceedings, June 30, 1984, at 83.) In the House, Representative McPike stressed the fact that the amendment provided for an expedited hearing and increased the number of Commissioners to seven, which would “hopefully provide swift answers to the cases before the Commission.” 83d Ill. Gen. Assem., House Proceedings, June 30, 1984. at 150.

The supreme court took notice of this change in Yellow Cab Co. v. Industrial Comm’n (1985), 108 Ill. 2d 330, 483 N.E.2d 1278, where it upheld its own decision to create a special Industrial Commission Division of the Appellate Court (113 Ill. 2d R. 22(g)). There, the supreme court stated:

“[U]nder the existing statutory scheme and the provisions of Rule 302(a) prior to its amendment, claims for compensation were not being adjudicated in the expeditious manner contemplated by the Workers’ Compensation Act [citations]. For the most part the delays [were] encountered prior to the cases reaching the circuit courts, but it is anticipated that the amendments to the Workers’ Compensation Act effected by Public Act 83 — 1125 (eff. June 30, 1984) will expedite the decision of cases by the Commission. In view of the number of times the issues are decided prior to reaching that stage, we are of the opinion that any further extension of the litigation beyond the decision of the appellate court is warranted only if at least two members [now one member] of the appellate panel make the statements required under Rule 315(a).” Yellow Cab, 108 Ill. 2d at 341, 483 N.E.2d at 1283.

This court thereafter decided Orkin Exterminating Co. and Cook. It is true that neither case changed the Commission’s standard of reviewing arbitrators’ decisions to one of manifest weight of the evidence. However, contrary to the majority’s assertion, the cases did in fact change the standard by which the Commission is to review its arbitrators’ factual findings. When this court stated that an arbitrator’s factual findings are not without legal effect and that it would apply an extra degree of scrutiny to cases in which the Commission had overturned an arbitrator’s findings without hearing new evidence, the Commission’s standard in reviewing arbitrators’ findings was resultantly changed, since it then could only overturn its arbitrators’ findings when its decision could withstand the extra scrutiny of this court. (I would note that in the Orkin and Cook cases the supreme court denied the parties’ petitions for leave to appeal.)

The legislature, the supreme court, and the Commission itself have taken notice of the caseload now overwhelming the Commission. The legislature has sought to lessen this burden and expedite the appeal process by, among other things, severely limiting the nature of the hearing before the Commission. The supreme court has recognized the legislature’s desire to expedite appeals and in Yellow Cab partly justified its creation of this court by that need. This court in Orkin Exterminating Co. and Cook has effectively recognized the reality that the modern Industrial Commission must rely more and more on the record compiled before the arbitrator and that the Commission has less and less time to devote to an in-depth review of that record.

Accordingly, I find that Orkin Exterminating Co. and Cook set forth a new standard of review in cases in which the Commission overturns an arbitrator’s factual findings without hearing new evidence and that this in turn means that the Commission must accord reasonable weight to the arbitrators’ findings. In other words, the Commission must now apply a “due deference” standard of review to its arbitrators’ decisions, taking into account that in most cases only the arbitrators actually view the witnesses and hear their testimony. I further find that this change in the law was in effect fully sanctioned by the legislature in Public Act 83 — 1125 and by the supreme court in Yellow Cab and that it therefore does not usurp the supreme court’s authority over this court.

In the instant case, however, I find that even under the due deference standard the Commission did not err in overturning the arbitrator’s decision. The petitioner presented sufficient evidence to prove that his injury arose out of and in the course of his employment.


author: PRESIDING JUSTICE HEIPLE

text:
    WILLIAM M. PAPPMEIER, Plaintiff-Appellant, v. GREEN TREE ACCEPTANCE, INC., Defendant-Appellee.
    Third District
    No. 3—89—0373
    Opinion filed January 18,1990.
    Rehearing denied March 8,1990.

      Roger L. Williamson, of West, Neagle & Williamson, of Galesburg, for appellant.
    Dean B. Rhoads, of Sutkowski & Washkuhn Associates, of Peoria, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This appeal requires us to decide whether a real estate tax certificate lien on property is superior to a perfected security interest lien on the same property. The trial court held that defendant Green Tree Acceptance, Inc.’s security interest lien took preference over plaintiff William M. Pappmeier’s tax certificate lien. The plaintiff appeals. We reverse.

The record shows that in October of 1983, Lyman and Connie Millizer purchased a mobile home. A certificate of title to the mobile home was issued by the Illinois Secretary of State listing the Millizers as owners and the defendant as a lienholder with a perfected security interest. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 3 — 202.) The Millizers placed the mobile home on lots four and five in block 22 in the original town of Sagetown.

The Millizers subsequently failed to pay their property taxes. In January of 1987, the plaintiff paid $321.14 for a tax sale certificate of purchase on lots four and five. In April of 1987, the defendant removed the mobile home from the lots, and in May sold it for $21,500. In June of 1987, following the statutory redemption period, a tax deed was issued to the plaintiff.

In November of 1987, the plaintiff commenced this action against the defendant, alleging that the defendant had committed a conversion by removing the mobile home from lots four and five. The complaint also alleged that the defendant was liable to the plaintiff for the fair market value of the mobile home. The trial court entered judgment in favor of the defendant.

On appeal, the plaintiff initially argues that he had a real estate tax lien on the mobile home since the home was a permanent fixture on lots four and five. Specifically, he argues that his lien is superior to the defendant’s lien because the lien of a tax sale purchaser is superior to the perfected lien of a security interest holder.

“The taxes upon real property, together with all penalties, interests and costs, that may accrue thereon, shall be a prior and first lien on such real property, superior to all other liens and encumbrances ***.” (Ill. Rev. Stat. 1987, ch. 120, par. 697.) Real property includes not only the land itself but also any vehicle or similar portable structure used as a dwelling place, if such structure is resting in whole on a permanent foundation. Ill. Rev. Stat. 1987, ch. 120, par. 482(13).

In Tubbs v. Dunlop (1945), 325 Ill. App. 53, 59 N.E.2d 514, the court held that a tax certificate of purchase was a lien superior and paramount to the lien of a trust deed, regardless of whether the tax lien attached before or after execution of the other encumbrance. Furthermore, in City of Chicago v. City Realty Exchange (1970), 127 Ill. App. 2d 185, 262 N.E.2d 230, the court held that the holder of a tax certificate of purchase had rights superior to the holder of a demolition lien.

In the instant case, the evidence shows that the mobile home was a permanent structure upon the real estate, and as such, the plaintiff’s tax lien attached to it. Further, under section 216 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 697), and under the relevant case law, the plaintiff’s tax certificate lien was superior to the defendant’s lien. Accordingly, we find as a matter of law that the defendant did not have the right to sell the mobile home.

The plaintiff next argues that he is entitled to. $21,500 in damages. Specifically, he contends that he is entitled to the entire proceeds from the sale of the mobile.home, since he was issued a tax deed.

We note that tax deeds issued pursuant to section 266 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 747) convey merchantable title and any prior existing lien becomes void upon the issuance of the tax deed. (Lincoln Park Federal Savings & Loan Association v. DRG, Inc. (1988), 175 Ill. App. 3d 176, 529 N.E.2d 771; Copeland v. Copeland (1959), 16 Ill. 2d 11, 156 N.E.2d 524.) In the instant case, the plaintiff was issued a tax deed. He was therefore entitled to the proceeds of the sale, since the mobile home then became his free of any encumbrances. This result does not create undue hardship on lien-holders such as the defendant. The defendant and others in similar situations are free to redeem tax certificates and thereby protect their interests in property. This is, of course, routinely done by mortgage holders.

The judgment of the circuit court of Henderson County is reversed, and the cause is remanded for further proceedings consistent with our findings.

Reversed and remanded.

WOMBACHER and SCOTT, JJ., concur.