author: JUSTICE CHAPMAN

text:
    DONALD G. FENTON, Plaintiff-Appellee and Cross-Appellant, v. BOARD OF TRUSTEES OF THE CITY OF MURPHYSBORO et al., Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 5 — 89—0224
    Opinion filed August 14, 1990.

      Thomas H. Jones, City Attorney, of Murphysboro, for appellants.
    Michael F. Dahlen and Brad A. Elward, both of Feirich, Schoen, Mager & Green, of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On or about February 28, 1985, Donald Fenton, a police officer with the City of Murphysboro, submitted a letter of resignation notifying the Murphysboro police department (hereinafter department) of his resignation effective March 31, 1985. On March 1, 1985, Fenton became a full-time salaried employee of Burns International Detective Agency. On March 18, 1985, Fenton was involved in an automobile accident, sustaining disabling injuries. He has received temporary total disability from Burns International Detective Agency. Donald Fenton applied to the City of Murphysboro Police Pension Board of Trustees (hereinafter Board) for disability benefits pursuant to the Illinois Pension Code (Ill. Rev. Stat. 1989, ch. 1081/2, par. 1 — 101 et seq.). A hearing was conducted before the Board, which ruled that Fenton was not a police officer in the employ of the Murphysboro police department at the time of the accident and was not eligible for disability benefits. Fenton’s application for disability benefits was denied.

Fenton filed a complaint for administrative review in the circuit court. He sought a reversal of the Board’s decision, and in addition sought prejudgment interest on the amount claimed due. On March 17, 1989, the court entered an order finding the decision of the Board to be against the manifest weight of the evidence. The court also ordered that disability payments be paid to Fenton without reduction for workers’ compensation payments. The request for prejudgment interest was denied.

Both parties appeal from the circuit court’s order. The defendants contend that the court’s determination is against the manifest weight of the evidence. Donald Fenton appeals from the court’s decision not to award prejudgment interest.

Upon administrative review, the function of both the trial court and the appellate court is limited to determining whether the findings and conclusions of the administrative agency are against the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Comm’n (1981), 86 Ill. 2d 60, 76, 426 N.E.2d 877, 884; Starnawski v. License Appeal Comm’n (1981), 101 Ill. App. 3d 1050, 1058-59, 428 N.E.2d 1102, 1109.) After reviewing the record, we affirm the circuit court’s decision finding the Board’s determination to be against the manifest weight of the evidence.

First we agree with the trial court’s ruling that the Board’s determination that Fenton was not a police officer with the Murphysboro police department at the time of his injury was against the manifest weight of the evidence.

Defendants contend that any finding that Fenton was on duty with the police force when he was injured is illusory. Defendants rely on Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 485 N.E.2d 871, appeal denied (1986), 111 Ill. 2d 581, as support for their position that Fenton did not specifically preserve his rights to the pension prior to or at the time of his resignation, thereby relinquishing his status as a police officer. Defendants cite the Board’s findings of fact as significant evidence of Fenton’s relinquishment of his rights to the pension: (1) that as of March 1, 1985, Fenton became a full-time salaried employee with Burns International Detective Agency; (2) that upon taking the job with Burns International Detective Agency, Fenton failed to provide the police department with a method by which the department could contact him; and (3) that prior to his automobile accident, Fenton had turned in all equipment issued to him by the police department including his uniforms. Defendants also note that Fenton had requested in writing that his contributions to the Murphysboro police department pension fund be returned to him. These facts, along with other evidence presented at the hearing, defendants argue, clearly prove that Fenton was not a police officer with the department at the time of his injury.

Just as Hahn found that plaintiff preserved his rights in his resignation, we find that plaintiff herein preserved his rights and that he maintained his status as a police officer at the time of his injury. The evidence in this case consisted of the testimony of the claimant, members of the police force, the city treasurer, and Norma Stanton, the widow of the district manager of Burns International Detective Agency. Donald Fenton testified that although he turned in his police equipment on March 15, 1985, he spoke with Chief of Police Tincher regarding his willingness to be called back to work with the police force in the event of an emergency. It was Fenton’s understanding that he was subject to being called back at any time until the effective date of his resignation, March 31, 1985. Fenton testified that he had made arrangements with his new employer which would permit him to leave his job at any time in the event he was called back to serve with the police force.

Norma Stanton confirmed Fenton’s testimony that Fenton had discussed the possibility of being called back with her husband Jim, who is now deceased, but who was at that time district manager of the agency and who was going to be Fenton’s supervisor. Stanton testified that in February of 1985 she and her husband met with Fenton, and that Fenton made it very clear to Jim at that time that if he were called to the police department he would have to go back.

Police officers Graeff and Eovaldi each testified that in late February or early March of 1985, Chief of Police Tincher advised them that Fenton had resigned effective March 31, 1985. Officer Graeff testified that Tincher explained to Eovaldi and himself that Fenton was advised that if the need arose he would be subject to call-back. Officer Eovaldi testified that he recalls Tincher saying that Fenton would be subject to call-back.

Chief of Police Tincher testified that he did not recall any discussion with Fenton regarding a call-back situation. Tincher explained, “the fact that I would not have known where to contact him would tend to negate that.” The chief of police did acknowledge, however, that Fenton did not tell him that he would not work if he were called back.

Evidence was presented by the city treasurer, Jim Chambers, as to paychecks issued to Fenton during March 1985. He testified that Fenton received a check on March 15, 1985, and one on March 29, 1985, each representing pay for personal days and vacation pay. Chambers testified that all deductions had been taken from those checks, including deductions for the police pension fund. He testified that he “had nothing written for Mr. Fenton as to what he wanted to do with his particular money that was in there *** so I was required to *** take those out as pension amounts.”

Section 3 — 114.2 of the Illinois Pension Code provides:

“A police officer who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found to be physically or mentally disabled so as to render necessary his or her suspension or retirement from police service in the police department, shall be entitled to a disability pension ***.” (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3-114.2.)

“Police officer” is defined as:

“Any person who (1) is appointed to the police force of a police department and sworn and commissioned to perform police duties; (2) is found upon examination of a duly licensed physician or physicians selected by the board to be physically and mentally fit to perform the duties of a police officer; and (3) within 3 months after receiving his or her first appointment, and if reappointed, within 3 months thereafter, makes written application to the board to come under the provisions of this Article.” (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 106.)

The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674, 677.) When construing a statute, the court should look first to the language of the statute (Robinson, 89 Ill. 2d at 475, 433 N.E.2d at 677), giving the terms their plain and ordinary meaning (People v. Steppan (1985), 105 Ill. 2d 310, 317, 473 N.E.2d 1300, 1304). We also note that it is well established that the rules governing police and firemen’s pensions are to be liberally construed in favor of those to be benefited. (Hahn, 138 Ill. App. 3d at 211, 485 N.E.2d at 875.) There being no indication in the Pension Code that the term “police officer” is to be construed narrowly, we interpret the words “police officer” to mean a person who occupied the position of Donald Fenton at the time of his injury. See Freberg v. Board of Trustees (1970), 128 Ill. App. 2d 369, 374, 262 N.E.2d 22, 25.

We are unpersuaded by defendants’ argument that Fenton was not on call-back status with the department and, therefore, was not a police officer with the department at the time of his injury. Upon review of the evidence, we see that the sole witness to testify that Fen-ton was not on call-back status was Chief of Police Tincher. We find it significant that Tincher did not testify that he had never had a discussion with Fenton regarding a call-back situation, but rather that he could not recall having such a discussion with Fenton. We also note that Tincher testified that Fenton at no time told him that he would not return to the department if called back. In light of the evidence we agree with the circuit court’s determination that the Board’s finding that Fenton was not a police officer at the time of his injury was against the manifest weight of the evidence.

Defendants also argue that Fenton’s immediate undertaking of other full-time employment and his request for the return of his pension contributions show his intent to sever his employment with the department prior to his injury. Defendants maintain that section 3— 114.2 requires that there be a causal relationship between the disability and the retirement from police service in order to qualify for pension benefits; that the claimant actually retire or be suspended because of his injury. We do not believe that section 3 — 114.2 imposes such a requirement.

According to section 3 — 114.2, the police officer must be “found to be physically or mentally disabled so as to render necessary his or her suspension or retirement from police service in the police department.” In this case the extent of Fenton’s injuries was stipulated to by the parties as being serious and disabling. The parties further stipulated that the physicians who treated Fenton are of the opinion that the paraplegia resulting from the accident is a permanent and totally disabling condition. While Fenton’s disability is not contested, defendants argue that the statutory language, “so as to render necessary his or her suspension or retirement,” mandates that but for the disability, the claimant intended to return to police service. We find no such restriction in the statute. Indeed, the statute requires only that the claimant be an officer at the time of the injury, which we have already shown was the situation here. The liberal construction to be accorded the pension provisions and the beneficent policy behind the disability pension program guide our determination that this statutory language merely indicates the degree of physical impairment necessary in order to qualify for a disability pension. (See Hahn, 138 Ill. App. 3d at 212-13, 485 N.E.2d at 876.) There is no dispute that Fenton would have had to retire from police service as a result of his injuries. Furthermore, there is no significant disagreement about the fact that had plaintiff been on full-time active duty with the department at the time of his injuries and had he not tendered an early resignation notice, he would have been entitled to a disability pension. Simply because he tendered a resignation and accepted employment elsewhere prior to the onslaught of his disability is no reason to deny him the right to a disability pension. The statute does not mandate such treatment, and we will not impose such a restriction.

In Hahn, the court found the fact that the claimant had applied for his pension prior to resigning was sufficient to show that he did not intend to relinquish his rights to the pension. We are not convinced that the factual circumstances of the instant case warrant adopting a different rule as to Fenton. It is clear that Fenton did not resign with the expectation of severing all of the benefits of his pension. Hahn, 138 Ill. App. 3d at 212, 485 N.E.2d at 875.

Defendants argue that Fenton obviously intended to sever all ties with the department because he immediately took on full-time employment elsewhere. Without reiterating the testimony elicited at the hearing, we believe the evidence establishes that Fenton was subject to call-back with the department. Defendants also argue that Fenton’s request for reimbursement of his pension fund contributions indicates that he intended to terminate his rights to a disability pension prior to the effective date of his resignation. We disagree. The city treasurer testified that he had received nothing in writing as to what Fen-ton desired to do with the amounts to be reimbursed; therefore, pension deductions were taken from Fenton’s paychecks, including the last check Fenton received on March 29, 1985. Additionally, it is undisputed that Fenton’s resignation was not effective until March 31, 1985. The accident giving rise to his injuries occurred prior to the effective date of his resignation. Under these circumstances, we find that Fenton did intend to maintain his rights to the pension until the effective date of his retirement.

The next issue on appeal is whether the trial court’s order awarding disability benefits without a reduction for payments received under the Workers’ Compensation Act (111. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) is error.

The Illinois Constitution provides:

“Membership in any pension or retirement system of the State, any unit of local government *** shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” (Ill. Const. 1970, art. XIII, §5.)

An employee’s rights in the system vest either at the time he enters the system or in 1971 when the 1970 Constitution became effective, whichever is later. (Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 390 N.E.2d 1281.) Plaintiff was initially employed with the Murphysboro police department in 1970; therefore, his rights in the pension system vested on July 1, 1971, the effective date of the 1970 Constitution.

At the time of vesting, Fenton’s pension rights were limited by section 1(b)(1) of the Workmen’s Compensation Act, which provided that a governmental employee’s pension benefits must be reduced by the amount of money received under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1(b)(1)). In 1974 this provision was repealed. In 1977, section 3 — 151 was added to the Illinois Pension Code, permitting the reduction of police pension disability benefits by amounts received under the Workmen’s Compensation Act. (Ill. Rev. Stat. 1977, ch. 1081/2, par. 3 — 151.) This section was also repealed (Pub. Act 83 — 1440, eff. January 1, 1985); however, its provisions were reenacted in section 3 — 114.5 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. lOSVa, par. 3 — 114.5).

Plaintiff contends that the continued contributions made by him throughout his term of employment with the Murphysboro police department resulted in the vesting of additional rights in his pension. Plaintiff further maintains that the repeal in 1977, of the provision permitting the diminution of disability benefits by the amount of workers’ compensation benefits received, resulted in an additional pension benefit which could not be divested upon enactment of a statute allowing for a similar reduction in disability benefits. Plaintiff cites cases from three districts as support for his position.

In the first district case of Gualano v. City of Des Plaines (1985), 139 Ill. App. 3d 456, 487 N.E.2d 1050, the plaintiff continued to contribute to his pension fund after the reduction provision was repealed. The court there found that the continued contributions resulted in the vesting of an additional pension benefit. The court also held that reenactment of a reduction provision could not constitutionally diminish plaintiff’s vested rights.

The second district in Taft v. Board of Trustees (1985), 133 Ill. App. 3d 566, 572, 479 N.E.2d 31, 35, held that where an employee’s benefits are increased under a pension system, such rights may vest as to an employee who provides additional consideration for the contractual modification. This additional consideration can take the form of new or continued contributions to the pension system. Taft, 133 Ill. App. 3d at 572, 479 N.E.2d at 35.

The most recent decision involving the issue at bar is the third district case of Carr v. Board of Trustees (1987), 158 Ill. App. 3d 7, 511 N.E.2d 142. William Carr began his employment with the police department in 1965. He was injured in 1983 and sought disability benefits through his pension system. The board of trustees of the police pension fund offset plaintiff’s pension benefits by the amount of workers’ compensation benefits plaintiff received. The trial court found that the board had wrongfully modified plaintiff’s pension benefits. The appellate court in Carr adopted the reasoning of both Gualano and Taft, and held that because of the plaintiff’s continued contributions to his pension fund, plaintiff acquired an additional pension benefit, which could not be reduced by the amount of plaintiff’s workers’ compensation award.

In the instant case, the parties do not dispute that plaintiff continued to contribute to the pension fund following the repeal of the reduction provision of section 1(b)(1) of the Workmen’s Compensation Act. We concur with the reasoning of Gualano, Taft and Carr, insofar as those cases held that repeal of the reduction provision resulted in the vesting of an additional pension benefit which could not constitutionally be divested. We find that the trial court’s decision not to reduce plaintiff’s disability award by the amount of workers’ compensation benefits received was proper.

The final issue on appeal is raised by the plaintiff. He claims the trial court erred in not awarding prejudgment interest. Absent an express agreement between the parties, allowance of interest depends upon statutory authority. (See Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 522, 202 N.E.2d 512, 514.) Fenton argues that he is entitled to prejudgment interest pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1989, ch. 17, par. 6402). He contends that the police pension fund agreement is an instrument of writing as is required by the statute. Fenton also argues that the amount due is fixed or readily ascertainable, thereby satisfying the requirements for the allowance of prejudgment interest. See Cushman & Wakefield of Illinois, Inc. v. Northbrook 500 Limited Partnership (1983), 112 Ill. App. 3d 951, 963, 445 N.E.2d 1313,1321.

The interest statute provides:

“[Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing ***.” (Ill. Rev. Stat. 1989, ch. 17, par. 6402.)

Each of the categories of bonds, bills and promissory notes specified has the legal attribute of creating an indebtedness. The phrase “or other instrument of writing” should thus be construed under ejusdem generis to refer only to other similar writings possessing this same legal attribute. (Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 853, 342 N.E.2d 758, 765.) However, the phrase “other instruments of writing” has been construed to include building or construction contracts (E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181), insurance policies (Ervin v. Sears, Roebuck & Co. (1984), 127 Ill. App. 3d 982, 469 N.E.2d 243), real estate listing contracts (Hammel v. Ruby (1985), 139 Ill. App. 3d 241, 487 N.E.2d 409), and leases (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 423 N.E.2d 1170). Our research has not revealed any Illinois case, however, where a pension was sought to be included under the statutory phrase “other instruments of writing.”

The police pension fund here is a statutorily mandated creation and is administered according to legislatively prescribed terms and conditions. (See 111. Rev. Stat. 1989, ch. 108/12, par. 3 — 101.) The terms and conditions of the pension fund are written in the Illinois Pension Code. Construction contracts, insurance policies, real estate listing contracts and leases are no more like bonds, bills or promissory notes than is the pension agreement, in that they all are writings creating an indebtedness. We find, therefore, that the pension agreement is an “other instrument of writing” under the interest statute.

The date on which Fenton’s pension became due and owing was March 31, 1985, the effective date of retirement. (Ill. Rev. Stat. 1989, ch. 108V2, par. 3 — 114.2.) The specific dollar amount due Fenton under the pension agreement is prescribed by statute. (See Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 101 et seq.) Since the principal amount due Fenton is readily ascertainable, the amount of prejudgment interest due in this case is readily ascertainable. Accordingly, Fenton is entitled to prejudgment interest on all amounts due under the pension fund agreement.

For the foregoing reasons, the judgment of the circuit court finding that the plaintiff was a police officer at the time of his injury and that he was entitled to disability pension benefits without reduction for amounts received under the Workers’ Compensation Act is affirmed. The circuit court’s decision denying prejudgment interest is reversed, and we remand with instructions to enter an order awarding prejudgment interest as herein specified.

Affirmed in part; reversed in part and remanded.

RARICK and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    VELMA BEARD, Plaintiff-Appellee, v. MOUNT CARROLL MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0092
    Opinion filed August 15, 1990.

      Robert M. Hopkins, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellant.
    Lawrence Eaton, of Eaton & Eaton, of Newton, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On June 7, 1989, plaintiff, Velma Beard, filed a complaint in the circuit court of Jasper County against defendant, Mount Carroll Mutual Fire Insurance Company. The complaint alleges that defendant had insured plaintiff against loss or damage by fire to a certain rental house and its contents which were, on September 5, 1988, totally destroyed by fire. The limits of the insurance policy were $20,000 for damage to the real estate and $3,000 for damage to the contents. The complaint alleges that the total loss sustained by plaintiff exceeded $23,000, but that no part of the $23,000 had been paid by defendant to plaintiff.

Attached to the complaint is a copy of the policy of insurance. That policy provides, in part:

“Appraisal. In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.
* * *
Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”

On July 11, 1989, defendant filed a motion to dismiss the complaint under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) alleging that defendant had made demand upon plaintiff for appraisal, that plaintiff had refused said demand, and that plaintiff’s suit was barred by the foregoing provisions of the insurance policy. On January 11, 1990, defendant filed a motion to compel arbitration and stay court proceedings, arguing that the appraisal provision of the insurance policy is analogous to an arbitration clause which is enforceable, and which the court is empowered to enforce by staying further court proceedings and compelling compliance therewith.

At hearing on the motion on January 11, 1990, the circuit court of Jasper County denied defendant’s motion to dismiss and its motion to compel arbitration and stay court proceedings, finding that the appraisal provision of the policy did not apply in the case of a total loss where there was no property left to appraise. This ruling is reflected in a docket entry order which states, “because ‘total loss’ is claimed, the provision of the policy providing for appraisal and arbitration does not apply under these circumstances.” Defendant’s notice of appeal was filed on February 8,1990.

Defendant argues initially that this court has jurisdiction over this appeal under Supreme Court Rule 307(a)(1), which provides that an appeal may be taken from an interlocutory order granting, modifying, refusing, dissolving or refusing to dissolve or modify an injunction. (107 Ill. 2d R. 307(a)(1).) Plaintiff does not contest this point, and, in any event, we agree with defendant. The denial of a stay by a trial court is treated as a denial of a request for a preliminary injunction, which is appealable under Rule 307(a)(1). Allied Contracting Co. v. Bennett (1982), 110 Ill. App. 3d 310, 311, 442 N.E.2d 326, 327.

Defendant next argues that the appraisal clause in the insurance policy is analogous to an arbitration clause, which is enforceable in a court of law and with which a court may compel compliance. We agree. Prior to adoption of the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.), agreements to submit future or anticipated disputes to arbitration were deemed void as depriving the individual citizen of his right to resort to the courts for the redress of grievances. (Horwath v. Parker (1979), 72 Ill. App. 3d 128, 132, 390 N.E.2d 72, 76.) However, the Uniform Arbitration Act now provides that parties may agree to submit a future controversy to arbitration and that such an agreement is valid and enforceable in a court of law. We see no reason to apply a different policy or different reasoning to an appraisal clause such as the one in the instant contract.

Although an appraisal clause does not contain the same procedural aspects as contained in the Uniform Arbitration Act, it is nevertheless an agreement to submit a future controversy to an out-of-court settlement. Such agreements are now deemed valid. Indeed, some cases have treated an appraisal clause similarly to an arbitration clause. In Hill v. Mercury Record Corp. (1960), 26 Ill. App. 2d 350, 356, 168 N.E.2d 461, 464, it was held that a binding agreement relating to future controversies may be made requiring that the determination of some fact be made by arbitrators or appraisers as a condition precedent to the bringing of the suit. In Bailey v. Timpone (1979), 75 Ill. 2d 539, 389 N.E.2d 1193, an appraisal proceeding was recognized as serving the same purpose as an arbitration proceeding, and was approved of. There, the court stated:

“The [Uniform Arbitration] Act is not directly applicable since the lease did not technically call for arbitration in that it made no provision for a quasi-judicial determination of any dispute concerning rent on renewal, but called instead for an ‘appraisement,’ an application of the arbitrators’ skill and knowledge to determine the fair cash rental value of the premises. [Citations.] Nonetheless, the salutary purposes for permitting an informal mechanism, to resolve private disputes finally and expeditiously are served here by limiting judicial intercession in the decision of the arbitrators. ***
*** Although such agreements may call for less formal proceedings than arbitrations, ‘both provide a contractual method for settling questions in a less complicated and expensive manner than through court adjudication. *** [W]hen as here, parties agree to have value affixed by an appraisal, they must abide by their own agreement ***.’ [Citation.]” (Bailey, 75 Ill. 2d at 545-46, 389 N.E.2d at 1196.)

Similarly, in Grace Evangelical Lutheran Church v. Lutheran Church — Missouri Synod (1983), 118 Ill. App. 3d 151, 454 N.E.2d 1038, an appraisal proceeding was recognized as a form of arbitration. We thus conclude that the appraisal clause in the insurance policy was valid and enforceable in a court of law.

The next issue before us, then, is whether that clause, although valid and enforceable, applies in the case of a total loss of the insured property, where that property is no longer available to appraise. This question is answered, we think, by construction of the contract.

An arbitration agreement is construed in the same manner as any other agreement; however, it must be remembered that courts regard arbitration agreements with favor. (Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 1096-97, 398 N.E.2d 103, 106.) A court may resort to rules of construction only where the language of the agreement is ambiguous. (In re Estate of Chaitlen (1989), 179 Ill. App. 3d 287, 291, 534 N.E.2d 482, 484.) Where the terms of an agreement are clear and unambiguous, they will be given their natural and ordinary meanings, and the intent of the parties must be determined from the language of the agreement alone. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 593, 527 N.E.2d 897, 902.) A contract is ambiguous when it is reasonably capable of being understood in more senses than one because of indefiniteness of language or expression, or due to its having a double or multiple meaning. (Zurich Midwest, Inc. v. St. Paul Fire & Marine Insurance Co. (1987), 159 Ill. App. 3d 961, 963, 513 N.E.2d 59, 60.) The mere fact that the parties have different views of the meaning of the contract language does not render the contract ambiguous. Zurich Midwest, Inc., 159 Ill. App. 3d at 963, 513 N.E.2d at 60.

We find no ambiguity in the language of the appraisal clause in the instant insurance policy. The policy provides that plaintiff is insured “to the extent of the actual cash value of the property at the time of loss,” but not to exceed the dollar limitation of the policy ($20,000 for real estate; $3,000 for personalty). The appraisal clause provides that, in the event the parties cannot agree on the actual cash value of the property or the amount of loss, appraisers shall be appointed. The appraisers are to appraise the loss, stating separately the actual cash value of the property and the loss. We see nothing in this language which creates an ambiguity or leads us to believe that this procedure was not intended to, or cannot, be followed in the event of a total loss.

We recognize, as did the trial court, that where there has been total destruction of the property, as in the instant case, the appraisal may be made more difficult because there is no property left to view. We do not think, however, that this precludes appraisal. Information as to the value of the property may be obtained by the appraisers from other sources. For example, the owner of the property, as well as its tenant or neighbors, may have knowledge of the condition of the premises prior to the fire. There may be recent photographs of the premises. The appraisers themselves may even have had prior knowledge of the value of the property.

Our decision herein is supported by decisions of other jurisdictions. In Drescher v. Excelsior Insurance Co. (D. N.J. 1960), 188 F. Supp. 158, the United States District Court for the District of New Jersey held that a similar appraisal clause applied in the case of a total loss. The court pointed out that, regardless of whether any property remained to be viewed, that would not affect the giving of evidence by witnesses as to their knowledge of the value of what was destroyed. In Stout v. Phoenix Assurance Co. (N.J. 1904), 65 N.J. Eq. 566, 56 A. 691, the court held that a similar appraisal clause would apply to a total loss even though there was no property left to view. The court pointed out that information as to the value of destroyed property may be obtained from previous knowledge of the property by the appraisers themselves, or it may be afforded by a description of the property contained in the proof of loss, or from measurements, plans, photographs, etc. The court stated, “The form of the clause seems to be broad enough to include an appraisement for all loss, for its language is that, in the event of disagreement as to the amount of loss (clearly all the loss), the same shall be ascertained by two competent and disinterested appraisers.” 65 N.J. Eq. at 568, 56 A. at 692. See also Chippewa Lumber Co. v. Phenix Insurance Co. (Mich. 1890), 44 N.W. 1055.

We find that the appraisal clause does apply in the case of a total loss of the insured property, and that the trial court erred in finding otherwise. We therefore reverse the order of the trial court denying defendant’s motion to compel arbitration and stay court proceedings and remand this cause with directions to the circuit court of Jasper County to enter an order compelling plaintiff to comply with the appraisal provisions of the insurance policy and staying further court proceedings pending completion of the appraisal.

In her answer brief, plaintiff fails to respond to the arguments raised by defendant, but instead raises different points upon which she asks us to affirm the decision of the trial court. Plaintiff argues that defendant’s appraiser is attempting to use an improper measure of damages, i.e., fair market value of the property rather than replacement cost minus depreciation, that defendant has waived its rights under the appraisal provision of the policy by acting in bad faith in insisting on using an improper measure of damages, and that the real dispute between the parties is the proper measure of damage, a dispute which does not fall within the appraisal provision. These arguments were not raised before the trial court, and, although we can affirm the decision of the trial court based on any grounds appearing in the record (Alexander v. DePaepe (1986), 148 Ill. App. 3d 831, 836, 499 N.E.2d 1065, 1068), there is insufficient evidence or argument in the record for us to affirm on this basis. In any event, it appears that the proper measure of damages is a question to be answered, at least initially, by the appraisers and umpire. See Bailey v. Timpone (1979), 75 111. 2d 539, 389 N.E.2d 1193.

For the foregoing reasons the judgment of the circuit court of Jasper County is reversed and this cause is remanded with directions.

Reversed and remanded with directions.

CHAPMAN and HOWERTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. WILLIAM A. DURLEY, JR., Defendant-Appellee (Jim Edgar, Secretary of State, Appellant). — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. PAMELA JERALDS, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant). — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. PATRICIA A. SPENCER, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant). — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. ROBERT L. STEVENS, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant). — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. MERTON E. THAYER, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Fifth District
    Nos. 5-88-0736, 5-89-0637, 5-89-0660, 5-89-0743, 5-89-0799 cons.
    Opinion filed August 16, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, William H. London, Ann PlunketSheldon, Claudia Sainsot, and Jerald S. Post, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    P.K. Johnson, Jr., of Johnson & Johnson, of Belleville, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

In each of these appeals, the Secretary of State, Jim Edgar (Secretary), seeks to appeal from an order of the circuit court which directed the Secretary, for the second time, to issue a judicial driving permit (JDP) pursuant to section 6 — 206.1 of the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, par. 6 — 206.1). These appeals have been consolidated for opinion in light of the recurrence of the jurisdictional issues presented for our consideration.

It has recently been recognized that the statutory procedure for the issuance of JDPs is not without its problems. (People v. Kerr (1990), 196 Ill. App. 3d 207, 211, 552 N.E.2d 1329, 1332.) These appeals present yet another issue: when is the trial court’s judgment, that the Secretary should issue a JDP, final for purposes of appeal?

In People v. Pine (1989), 129 Ill. 2d 88, 542 N.E.2d 711, the supreme court held that the Secretary had standing to appeal from the circuit court’s order directing the Secretary to issue a JDP. The court stated: “The Secretary has broad authority to administer the State’s laws governing the conduct of drivers on the road ***. *** [T]his authority includes the exclusive right ‘to grant, issue, deny, cancel, suspend and revoke driving privileges, drivers’ licenses and restricted driving permits,’ except as provided in section 6 — 206.1. [Citation.]” (Pine, 129 Ill. 2d at 96, 542 N.E.2d at 713.) Section 6 — 206.1(B), subsection (d), of the Illinois Vehicle Code provides as follows:

“The Secretary of State shall, upon receiving a court order from the court of venue, issue a JDP to a successful Petitioner under this Section. Such court order form shall also contain a notification, which shall be sent to the Secretary of State, providing the name, driver’s license number and legal address of the successful petitioner, and the full and detailed description of the limitations of the JDP. This information shall be available only to the courts, police officers, and the Secretary of State, except during the actual period the JDP is valid, during which time it shall be a public record. The Secretary of State shall design and furnish tovthe courts an official court order form to be used by the courts when directing the Secretary of State to issue a JDP.
Any submitted court order that contains insufficient data or fails to comply with this Code shall not be utilized for JDP issuance or entered to the driver record but shall be returned to the issuing court indicating why the JDP cannot be entered. A notice of this action shall also be sent to the JDP petitioner by the Secretary of State.” (111. Rev. Stat. 1987, ch. 95%, par. 6— 206.1(B)(d), as amended by Pub. Act 85 — 965, eff. July 1, 1988.)

The court noted that the statutory scheme “requires the Secretary to be more actively involved after the order has been entered.” (Pine, 129 Ill. 2d at 100, 542 N.E.2d at 715.) The court further stated:

“[I]n the JDP proceeding the Secretary is not initially a party, but if he and the court disagree over the order, under section 6 — 206.1(B)(d), in a sense, an ancillary proceeding is created between the two to determine whether the JDP is statutorily correct. In the first phase of the hardship proceeding, the driver petitions the circuit court for a JDP. During this stage, the State’s Attorney, if he chooses, may participate. If the court grants the petition, an order is entered for the JDP. After the order is entered, the litigation in court is terminated between the petitioner and the State’s Attorney. In the second phase, the matter proceeds to the Secretary, who reviews the court order and returns it to the court if it is found improper. The court may accede to the Secretary’s position or resubmit the order. If it is resubmitted, the Secretary may ignore the order and risk being held in contempt, or an appeal may be taken. Thus, the statute contemplates a separate proceeding in which the Secretary is intricately involved ***.
*** After the court resubmits the order, it is final and appealable. *** [T]here is no reason that the Secretary must be held in contempt before he may appeal the decision. [Citations.] However, before the Secretary may appeal, the procedure outlined in section 6 — 206.1(B)(d) should be followed. After the order has been sent to the Secretary, he must either enter it or return it to the court. If he returns it and the court changes the order to meet the Secretary’s objections, there is no need for review of the order. If the court chooses to resubmit the order without meeting the Secretary’s objections, the order then, in the Secretary’s view, does not comply with the law. The Secretary may then seek appellate review of the order.” (Emphasis added.) Pine, 129 Ill. 2d at 102-04, 542 N.E.2d at 716.

Given the procedure set out by statute and its interpretation by the supreme court in Pine, the question presented in each of the cases herein is whether a final, appealable judgment has been entered at the conclusion of the second phase of the JDP proceedings. In several of the cases herein the circuit courts and circuit clerks have not treated the JDP orders as final judgments, but instead have treated the JDP orders as administrative matters. This has resulted in JDP orders being issued and apparently mailed to the Secretary, but being neither “filed” nor “entered of record” in the circuit clerk’s files. Although subsection (d) of section 6 — 206.1(B) requires the courts to use “an official court order form” to direct the Secretary to issue a JDP, some of the information on that form will be a “public record” only while the JDP is valid. It appears that some circuit clerks and circuit courts have taken the position that the JDP order itself is to be a public record only in the Secretary of State’s files, which may explain the failure to include those orders in the circuit clerks’ files.

Generally, the determination of whether a civil judgment is final is governed by Supreme Court Rule 272 (107 Ill. 2d R. 272). JDP proceedings are civil in nature. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6— 206.1(B)(e).) Supreme Court Rule 272 was intended to remove all doubt regarding the date a judgment is entered or becomes final. (Ill. Ann. Stat., ch. 110A, par. 272, Committee Comments, at 542 (SmithHurd 1985).) The rule provides as follows:

“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.)

Rule 272 provides for two alternatives: (1) a signed, written order is required to be filed; or (2) the filing of a signed, written order is not necessary, and the judgment is entered when it becomes of record. Ahn Brothers, Inc. v. Buttitta (1986), 143 Ill. App. 3d 688, 690, 493 N.E.2d 384, 386.

Therefore, if under Rule 272 the written, signed, official JDP order form is to be filed in the circuit court, then the judgment directing the Secretary to issue a JDP becomes final only when the written, signed, JDP order is filed. 107 Ill. 2d R. 272.

On the other hand, if under the Illinois Vehicle Code the written, signed, official JDP order form is to be filed only in the Secretary of State’s office, then the judgment directing the Secretary to issue a JDP becomes final when it is “entered of record,” i.e., a record sheet entry would suffice.

We conclude that in light of the language of subsection (d) of section 6 — 206.1(B) of the Illinois Vehicle Code, which provides for the confidentiality of certain driver information, the “official court order form” need not be “filed” in the circuit court. We note the statute never mentions that the order need be “filed” in the circuit court. The statute does state that the driver information shall be a “public record” while the JDP is valid, but presumably that information will be available to the public as required, as part of the Secretary’s records.

Nevertheless, even though the official court order form does not need to be filed in the circuit court, Rule 272 does require that a “notation of judgment” be “entered of record.”

We now address the jurisdictional issue in each of the five cases involved herein.

In People v. Durley, No. 5 — 88—0736, a St. Clair County case, every document in the record on appeal is a copy. The record does include an order dated and file-stamped September 28, 1988, which states: “Issue JDP.” The record also includes a “COURT ORDER DIRECTING THE SECRETARY OF STATE TO ISSUE A JUDICIAL DRIVING PERMIT,” dated September 28, 1988, and signed by the trial judge, but this is not file-stamped. The record also includes a letter dated October 5, 1988, from the Secretary to the circuit court of St. Clair County objecting to the JDP order, but this letter is not file-stamped. Finally, there is another “COURT ORDER DIRECTING THE SECRETARY OF STATE TO ISSUE A JUDICIAL DRIVING PERMIT,” dated October 19, 1988, and signed by the trial judge, but it too is not file-stamped. The notice of appeal is file-stamped November 17, 1988, and states that it is from an order “entered October 19, 1988” granting a judicial driving permit. There are no record sheet entries in this record on appeal.

This court entered an order directing the Secretary to show cause why the appeal should not be dismissed for lack of appellate jurisdiction, in light of this court’s inability to determine if or when the resubmitted JDP order was final. This court’s order noted that the commonly accepted manner of determining a filing date is by the circuit clerk’s file stamp. (Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 553, 500 N.E.2d 692, 695; Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill. App. 3d 492, 494, 431 N.E.2d 461, 462.) Although the resubmitted JDP order apparently bears the date on which the trial judge signed it, there is no file stamp, nor is there a notation of judgment entered of record. There has been no response to the show-cause order.

Therefore, pursuant to the foregoing analysis, in the absence of a final judgment, the notice of appeal was prematurely filed and the appeal in No. 5 — 88—0736 must be dismissed.

In People v. Spencer, No. 5 — 89—0660, the record on appeal again consists of copies of documents, not the originals. The record does include a copy of a JDP order dated August 25, 1989, apparently resubmitted to the Secretary at the conclusion of the second phase of the JDP proceedings. However, this copy appears to have found its way into the record only as an attachment to the Secretary’s notice of appeal. Furthermore, there are no record sheet entries in this record on appeal.

This court entered a show-cause order, and the Secretary has filed a response, including an affidavit by an assistant Attorney General. This affidavit states that the attorney was informed by the circuit clerk’s office that “the Circuit Court of St. Clair County does not regularly file-stamp orders, nor does it maintain record sheet entries for orders entered in misdemeanor and traffic court cases.” The affiant also stated that she could supplement the appellate record with the original of the August 25, 1989, JDP order, but the original does not bear a file-stamp.

As in No. 5 — 88—0736, in the absence of a file stamp or a record sheet entry, it cannot be determined when the JDP order was filed or entered of record. Therefore, the appeal in No. 5 — 89—0660 is also dismissed.

In People v. Jeralds, No. 5 — 89—0637, a Williamson County case, the record on appeal includes a copy of a JDP order, apparently resubmitted to the Secretary at the end of the second phase of the JDP proceedings. This order bears the date of August 9, 1989, the date of the original JDP order, and is signed by the trial judge. However, above the August 9 date is also written: “8-18-89 Reassessed,” again with the judge’s signature. This document also bears a court seal of August 24, 1989, but it is file-stamped September 18, 1989. Apparently, the file stamp was applied when this copy of the JDP order was sent to the circuit clerk along with the Secretary’s notice of appeal, because the notice of appeal is also file-stamped September 18, 1989. Although there are record sheet entries in this record on appeal, there is no entry describing when the “reassessed” JDP order was entered of record or filed.

This court entered a show-cause order in No. 5 — 89—0637, and a response has been filed. The response alleges that the Secretary “was not a party to this lawsuit at the trial level [and] [t]he Appellant therefore does not have the ability to oversee issuance of the orders by the trial court and the clerk and does not have the ability to ensure that the clerk properly file-stamps the orders.” We do not agree. In Pine, the supreme court noted that the Secretary is not initially a party in a JDP proceeding, but if the Secretary objects to the JDP order then an ancillary proceeding is created, “a separate proceeding in which the Secretary is intricately involved.”

Therefore, like the appeals in Nos. 5 — 88—0736 and 5 — 89—0660, this court cannot determine when final judgment was filed or entered of record, and the appeal in No. 5 — 89—0637 is dismissed.

In People v. Stevens, No. 5 — 89—0743, the record indicates that a JDP was originally issued on or about September 20, 1989, and that the Secretary objected. The record also includes a report of proceedings for a hearing on October 18, 1989, during which the circuit court agreed to resubmit the JDP to the Secretary. There is also a copy of a written order dated that same date in which it is stated: “The Court, having reassessed the facts *** reissues the JDP.” This order is file-stamped October 18, 1989. There is also a copy of a JDP, indicated as a “duplicate” JDP, which bears a date of issuance of October 18, 1989. However, this JDP order is not signed by a judge nor does it bear a file stamp. There are no record sheet entries in this record on appeal.

In this case, No. 5 — 89—0743, the record includes a written order in which the circuit court directed the Secretary to reissue the JDP, and the order bears the stamp of the circuit clerk indicating it was filed on October 18, 1989. This is also supported by a report of proceedings for that date. This court can conclude then from the record that final judgment was entered of record on October 18, 1989, and the Secretary’s notice of appeal was timely.

Therefore, this court has jurisdiction in case No. 5 — 89—0743.

Finally, in People v. Thayer, No. 5 — 89—0799, the Secretary challenged the court’s original JDP order, dated September 26, 1989. The record includes a copy of that JDP order, which also bears the notation that it was “reissued 10-24-89,” and this copy is file-stamped “10-24-89.” There is also a record sheet entry for October 24, 1989, indicating that the trial judge reissued the JDP and that the JDP was mailed back to the Secretary with a copy being filed.

In this case, No. 5 — 89—0799, the court can conclude that final judgment was entered of record on October 24, 1989, and the Secretary’s notice of appeal was timely.

Therefore, this court has jurisdiction in case No. 5 — 89—0799.

For the foregoing reasons, the appeals in Nos. 5 — 88—0736, 5— 89 — 0660 and 5 — 89—0637 are dismissed.

Nos. 5 — 88—0736, 5 — 89—0660, 5 — 89—0637, Appeals dismissed.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON

text:
    BULK SERVICE CORPORATION, Plaintiff-Appellant, v. MICHAEL BUICK, Defendant-Appellee (St. Paul Fire and Marine Insurance Company et al., Defendants).
    Fifth District
    No. 5 — 89—0420
    Opinion filed August 16, 1990.

      David Antognoli, of Bernard & Davidson, of Granite City, for appellant.
    Ted W. Dennis, of Freeark, Harvey, Mendillo, Dennis & Wuller, P.C., of Belleville, and Stephen C. Voris and Gerard D. Ring, both of Burke, Wilson & Mcllvaine, of Chicago, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

In January 1979, plaintiff, Bulk Service Corporation, a business involving marine operations, entered into an oral agreement with Allovio Corporation, an insurance consulting firm. Bulk Service allegedly sought advice from Allovio regarding excess liability insurance. Defendant Michael Buick, an agent of Allovio, allegedly obtained excess coverage for Bulk Service from St. Paul Fire and Marine Insurance Company.

In July 1979, one of Bulk Service’s employees was injured in a marine operation. St. Paul denied excess coverage due to a policy exclusion for “personal injury or property damage arising out of any marine operations.”

Following denial of its claim, Bulk Service brought this action for reformation of the policy or, in the alternative, damages from several insurance brokers and consultants for negligently failing to procure appropriate insurance.

In its amended complaint, Bulk Service alleged that Buick was negligent in the procurement of the excess liability policy in that, “although he knew or should have known that Bulk Service employees were customarily engaged in Marine Operations, he secured a policy which excluded coverage for injuries to employees of Bulk Service engaged in such operations.” Bulk Service alleged that the denial of coverage by St. Paul caused it to suffer economic damages.

Buick moved to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), on the grounds that Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, bars recovery in tort for economic loss occasioned by an insurance consultant’s negligent failure to obtain proper coverage. The circuit court of Madison County granted Buick’s motion and Bulk Service appeals. We affirm.

In Moorman, the supreme court of Illinois held that a products liability plaintiff could not recover solely economic losses under the tort theories of strict liability, negligence, and innocent misrepresentation. Moorman expressly set forth two exceptions, however. Economic losses are recoverable: (1) when one intentionally makes false representations; or (2) when one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88-89, 435 N.E.2d 443, 452.

At trial, Bulk Service argued that Buick was not protected by Moorman because Buick is a professional and Moorman does not extend to professionals. Substantial case law, however, firmly establishes that the Moorman doctrine does extend to professionals and to professional malpractice cases. See, e.g., 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 555 N.E.2d 346; Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 503 N.E.2d 246; Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 492 N.E.2d 181; Collins v. Reynard (1990), 195 Ill. App. 3d 1067, 553 N.E.2d 69.

Bulk Service’s complaint alleged that because of Buick’s negligence, Bulk Service “was forced to make out of pocket payments for settlements of the claim against it, [and] became liable for certain monies paid out by its primary insurance carrier.” Bulk Service concedes that it only seeks economic damages. Therefore, based on our understanding of Moorman and its progeny, we hold that Illinois law precludes the recovery of purely economic loses in a negligence action against an insurance consultant, under these circumstances.

Bulk Service also argued at trial that this court’s decision in Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539, warrants the reversal of the circuit court’s decision granting Buick’s motion to dismiss. In Economy Fire, we imposed tort liability on an insurance broker for failure to obtain proper insurance coverage. We find Economy Fire distinguishable, however. First, Buick is an insurance consultant, whereas Economy Fire involved an insurance broker. Second, the application of Moorman was neither raised nor addressed in Economy Fire. Therefore, Economy Fire is not controlling, and we do not apply it to the present case.

On appeal, Bulk Service argues that Buick is not protected by Moorman because an insurance consultant who negligently fails to procure an adequate insurance policy falls under the express Moor-man exemption which allows recovery, in tort, of economic losses when “one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88-89, 435 N.E.2d 443, 452.) While we recognize that on a motion to dismiss, all well-pleaded facts and inferences are accepted as true (Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 503 N.E.2d 760), in this case neither Bulk Service’s complaint, nor the record convinces us that this theory was sufficiently pled (see Zahorik v. Smith Barney, Harris Upham & Co. (N.D. Ill. 1987), 664 E Supp. 309) or raised and argued in the court below. Therefore, this argument is not properly before us, and we do not address its merits.

For the reasons stated above, the decision of the circuit court granting Buick’s motion to dismiss is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.

      While Moorman and its progeny use the term “economic loss,” we believe that the term “commercial loss” is more accurate. See Miller v. United States Steel Corp. (7th Cir. 1990), 902 F.2d 573, 574.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARET L. FOX, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0624
    Opinion filed August 17, 1990.

      Sherri L.E. Tungate, State’s Attorney, of Louisville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    K. Scott Wilzbach, of Salem, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendant, Caret Fox, was charged with unlawful use of weapons. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a)(4).) Mr. Fox filed a motion to suppress his arrest and evidence seized, and following a hearing, the trial judge granted the motion. The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). We affirm the trial court.

At the hearing on the motion to suppress, Mr. Fox testified that on July 28, 1988, at approximately 10:30 a.m., he was riding his motorcycle, traveling eastbound on U.S. Highway 50 in Clay County, Illinois, when he was stopped by an Illinois State Trooper for speeding. Fox accompanied the officer to his squad car, where he wrote Fox a speeding ticket. Before Fox entered the squad car, the officer took from Fox a hunting knife which he carried in a leather sheath on his belt. After writing the speeding ticket, the officer returned Fox’s knife and Fox proceeded eastbound on Highway 50. Fox noted that the officer continued to follow him, leaving his red lights on for a short time and then shutting them off.

After Fox had traveled two or three miles, the officer pulled up beside him flashing his headlights and motioned for Fox to pull over to the side of the road. The officer exited his vehicle and approached Fox, who asked what the officer wanted. Fox testified that “by then [the officer] was up there and he grabbed my arm and up under my vest and started *** reaching, grabbing.” The officer removed a pistol from the waistband of Fox’s pants and then placed him under arrest.

On cross-examination, Mr. Fox stated that on the day of his arrest he was wearing a short leather vest which covered his belt. He had unbuttoned the vest while seated in the squad car and had rebuttoned it, making it fit more snugly, as he mounted his motorcycle to leave. Fox admitted that he coúld have put his hand behind his back as he was traveling, stating: “I could have put it back to more or less put my vest down and my pants up. After you get situated on the road and you get along, you need to get your clothes where the air don’t [sic] blow in them.”

Trooper Greg Miller of the Illinois State Police testified that he was the officer who wrote Mr. Fox a speeding citation on July 28. As Fox approached the patrol car, he pulled a hunting knife in a sheath attached to his belt around to the front of his body. Officer Miller took the knife from Fox before allowing him to enter the patrol car. While writing the speeding citation, Miller noticed Fox tug at his vest three times as he sat in the patrol car. Miller stated, “I was somewhat curious but I didn’t feel at that time I had reason enough to go ahead and search his person.”

Officer Miller gave the following explanation for stopping the defendant the second time:

“After [Fox] got out of my vehicle, I was curious so I watched his movements. After he got out of the car, he buttoned his vest up and it made it snug around his waistband. I noticed a small bulge on his waistband on the rear left side and that made me even more curious, but it wasn’t large enough to be what I perceived to be a gun. At that time, he got back on his motorcycle and I followed him between a quarter and an eighth of a mile. It wasn’t a long distance. After he got on the motorcycle, he reached back to the spot where the bulge was and did what I do when I carry my weapon off duty to adjust it so it is less visible for a period of probably three to four seconds, and that’s when I decided to stop him again and check the area.”

Miller testified that he “felt reasonably sure” that Mr. Fox possessed a weapon prior to stopping him the second time.

After pulling Fox over, Officer Miller approached the motorcycle. Miller testified that he told Fox that “he hadn’t done anything wrong the second time, but from the actions that he did in my car, it made me nervous.” Miller then placed his hand on Fox’s waistband and felt a weapon, which he removed. Miller searched the pockets of Fox’s vest and found a small pouch containing ammunition for the gun. Officer Miller stated that at the time he searched Fox, he believed Fox to be dangerous because Fox had earlier told him that Fox was carrying a knife because he was going to pick up a truck for a friend, and he “expected some trouble.” On cross-examination, Miller admitted that as he was driving Fox to the jail following his arrest, he told Fox that when he pulled him over the second time, he was hoping Fox would run or try to elude him.

Following argument by counsel, the trial court stated, in part, as follows:

“The issue in this case is was there a reasonable suspicion sufficient to justify the second stop of the Defendant under Terry. *** It is clearly not a continuation of the original stop. *** You have to look at the facts at the time prior to the discovery of the weapon to see whether there was reasonable cause to justify the intrusion on the Defendant’s person. *** I don’t believe the additional conduct on the part of the Defendant after the [original] stop gave the officer sufficient Terry grounds to make the subsequent stop. So, the Motion to Suppress is granted.”

A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 769.) Under the facts of this case, the trial court was not manifestly erroneous in sustaining Mr. Fox’s motion to suppress.

Initially, we note that the trial court was correct in viewing Officer Miller’s second stop of Mr. Fox as an incident separate and apart from the original and legitimate stop for a traffic violation. Clearly, Officer Miller would have been justified in conducting a pat-down search for weapons in connection with the traffic arrest under the circumstances of this case. (See People v. Kantowski (1983), 98 Ill. 2d 75, 81, 455 N.E.2d 1379, 1382 (protective frisk for weapons proper when driver stopped for speeding observed by officer to be in possession of knife); see also People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 443, 391 N.E.2d 142, 146.) However, once that transaction was completed and Mr. Fox was allowed to leave, these safety considerations were no longer relevant and any further intrusion on Mr. Fox’s fourth amendment right of privacy must have been separately justified. See Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879.

Illinois has codified the Terry rules relating to stop and search situations. These statutes provide in pertinent part:

“A peace officer *** may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense *** and may demand the name and address of the person and an explanation of his actions.” Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14.
“When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons.” Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1.01.

A police officer’s conduct in a stop and search situation must be governed by the standard of reasonableness. (People v. Byrd (1977), 47 Ill. App. 3d 804, 807, 365 N.E.2d 443, 445.) In determining the reasonableness of the stop and subsequent search in the instant case, our inquiry is directed to “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879.

In order to justify the second stop of Mr. Fox in the case at bar, Officer Miller had to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) In Terry, the court found that the officer’s observation of the defendant and his companions walking up and down the same street and repeatedly peering into a store window warranted a reasonable suspicion by the officer that a crime was about to be committed. The court therefore held that the officer’s detention of the defendant was proper under the circumstances.

Here, the State contends that, as in Terry, the police officer “observed *** a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” Terry, 392 U.S. at 22, 20 L. Ed. 2d at 907, 88 S. Ct. at 1880-81.

However, the situation in the present case is distinguishable from that in Terry. It was the numerous repetitions of the otherwise innocent behavior observed in Terry which justifiably aroused the suspicions of police. Here, however, by Officer Miller’s own admission, Fox’s act of tugging at his vest three times as he sat in the patrol car, while making Miller “somewhat curious,” did not give him “reason enough to go ahead and search [Fox’s] person.” Similarly, Miller discounted his observance of a small bulge at Fox’s waistband because it “wasn’t large enough to be what I perceived to be a gun.”

It was only after following Mr. Fox some distance on the highway and seeing him reach behind to the area of the bulge in his vest and make an adjustment that Officer Miller decided to “stop him again and check the area.” Miller testified that Fox’s gesture was similar to what he himself did when adjusting his off-duty weapon to make it less visible. However, as the trial court stated, the gesture was “equally consistent with innocent behavior,” e.g., adjusting one's clothing for better wind resistance while riding. The officer’s conclusion that Fox was carrying a weapon was therefore more a mere suspicion or hunch than a rational inference from the facts. Mere suspicions of the police are not sufficient to establish the reasonableness of a stop. People v. Rizzo (1977), 49 Ill. App. 3d 105, 107, 363 N.E.2d 100, 102; see also People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252, 1256.

In Byrd (47 Ill. App. 3d at 808, 365 N.E.2d at 446), the appellate court held that where a police officer’s Terry stop of a defendant was unreasonable, the officer’s subsequent search of the defendant pursuant to his observation of a bulge in the defendant’s pants pocket was not permissible under the standards prescribed by section 108-1.01 (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1.01.) Similarly here, where Officer Miller’s stop of Mr. Fox was unreasonable, his subsequent search for weapons was impermissible. In upholding the trial court’s grant of the defendant’s motion to suppress, the Byrd court stated: “We are keenly aware of the need for an alert and aggressive police force, intent on shielding the community from criminal conduct. However, security is never an absolute in a free society which abhors intrusions upon constitutionally guaranteed rights.” (47 Ill. App. 3d at 808, 365 N.E.2d at 446.) We wholeheartedly agree.

For the foregoing reasons, the judgment of the trial court sustaining Mr. Fox’s motion to suppress is affirmed.

Affirmed.

LEWIS, P.J., and GOLDENHERSH, J., concur.


text:
    BERT M. MAHAN, Plaintiff-Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0489
    Opinion filed August 17, 1990.

      Eric D. Jackstadt, of Pratt & Callis, P.C., of East Alton, for appellant.
    Thomas E. Jones and Paul P. Waller III, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Bert Mahan, brought an action under the Federal Employers’ Liability Act (FELA) (45 U.S.C.A. §51 et seq. (West 1986)) in the circuit court of St. Clair County to recover damages for personal injuries he sustained while working for defendant, Louisville & Nashville Railroad Company (the Railroad). The cause was tried before a jury, which returned a verdict in favor of the Railroad and against plaintiff. After the circuit court entered judgment on that verdict, plaintiff filed a post-trial motion pursuant to section 2 — 1202 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202). In that motion, plaintiff requested judgment notwithstanding the verdict on the issue of liability and a new trial on the issue of damages or, in the alternative, a new trial as to all of the issues in the case. Plaintiff’s motion was denied, and he now appeals. We affirm.

Review by State courts of jury verdicts in FELA cases is to be made in accordance with Federal law. Under Federal law in FELA cases, courts are not free to reweigh the evidence and set aside a jury’s verdict merely because the jury could have drawn different inferences or different conclusions or because judges feel that other results are more reasonable. A jury verdict in a FELA case will be set aside only when there is a complete absence of probative facts to support the conclusion reached. (Meyer v. Penn Central Transportation Co. (1979), 78 Ill. App. 3d 110, 114-15, 397 N.E.2d 60, 63.) We do not believe that this is such a case.

The injury which gave rise to this litigation occurred on February 18, 1981. At that time plaintiff was employed as a “hostler helper” by the Railroad at one of its train yards. Among his duties was throwing switches on the tracks in the yard so that railroad engines could be moved into position and coupled with the cars they would be pulling. Throwing one of these switches is what plaintiff was doing at the time he claims he was injured.

Plaintiff testified that the switch in question had not been operating properly for some time. Plaintiff explained that this problem was caused by the fact that the ground “was wet, soggy and soft, underneath the rail.” Plaintiff stated that he had reported the problem to his supervisors at the yard “every day for at least six months.” The last such report he claims to have made was the day before his accident. At that time, plaintiff allegedly contacted the “maintenance of way superintendent,” brought him over to the area where the switch was located, and told him of the problem. Plaintiff testified that the superintendent advised him that he was aware of the problem and would have it fixed.

When plaintiff reported for work on the morning of February 18, which was the day after he had had the discussion with the superintendent, plaintiffs foreman advised him that the defective switch had been repaired. Plaintiff testified, however, that when he attempted to throw the switch, it still failed to work properly. According to plaintiff, he managed to lift the lever mechanism on the switch without difficulty, but when the lever reached a vertical position it “locked” and jerked him to his knees, causing him to injure his back.

An individual named Charles Jump was operating the railroad engine for which plaintiff was throwing the switch. He corroborated that the switch did not operate properly and stated that after this incident, the bed underneath the switch was repaired and the switch then operated as it was supposed to. Jump, however, did not personally observe the events described by plaintiff. The switch-throwing incident was not witnessed by anyone other than plaintiff.

Because the accident described by plaintiff at trial was not witnessed by anyone else, plaintiffs credibility was a critical factor in the case. In an effort to justify the jury’s verdict, the Railroad contends that the jury may have concluded that plaintiff’s testimony was not believable, in part, because of his claim that he had complained of the defect in the switch every day for at least six months. We note, however, that the Railroad adduced absolutely no evidence to refute this claim, and, contrary to the Railroad’s suggestion, we do not believe that it is inherently incredible.

The Railroad’s contention assumes either that plaintiff could not possibly have been so persistent, or else that it could not possibly have been so unresponsive to plaintiff’s complaints. In our view, there is no foundation in the record for either of these assumptions. We believe that when faced with a potentially dangerous working condition, a worker might very well be as vigorous as plaintiff claims he was in attempting to have the condition remedied. We likewise believe that it is entirely possible that the Railroad may simply have chosen to ignore plaintiff’s complaints until after it had received a report that a defect in the switch had been implicated in the injury of a worker. This is especially so given that the defect was evidently not so severe that it rendered the switch totally inoperable and did not interfere with the functioning of the Railroad’s switching yard.

The Railroad also argues that plaintiffs testimony regarding how he fell when he attempted to throw the switch was impeached by testimony he had previously given during his deposition. This is not so. The description plaintiff gave at his deposition regarding what happened when he attempted to throw the switch on February 18 was essentially the same as that which he gave at trial.

The Railroad similarly attempts to establish some inconsistency in plaintiff’s testimony by pointing out that plaintiff claims that on the day he was allegedly injured he was able to raise the switch to a vertical position, whereas when the switch had previously failed to operate, properly, it would not move at all until the train was moved into position next to the switch so that the switching mechanism would not bind. We see no inconsistency here either. As we have indicated, plaintiff testified that he was told on the morning of the accident that the switch had been repaired. This repair work could certainly account for any difference in the operation of the switch.

Although plaintiff stated that on the day of the accident the switch and the area around the switch did not seem to have changed since the previous day, this does not compel a conclusion that no repairs had, in fact, been made and that plaintiff had not been telling the truth when he testified that his foreman had told him that the switch had been fixed. It may mean nothing more than that the repairs effectuated by the Railroad were so limited that they were simply not evident. If, for example, the “repair” was limited to lubrication of the switch mechanism, it would hardly have been obvious to plaintiff as he went about his business on the morning of February 18.

Although we cannot accept the Railroad’s arguments on the foregoing points, we nevertheless believe that there are other reasons for which the jury may have had cause to discount plaintiff’s claim. As we have noted, the only other occurrence witness whose testimony was presented to the jury was Charles Jump. Jump’s description of what occurred immediately after plaintiff’s alleged fall differed markedly from the story told by plaintiff at trial, and plaintiff’s trial testimony itself differed from the story he had told at his deposition. At trial, plaintiff testified that after he fell, “[Jump] came over to see why I hadn’t come back over, and he seen me [sic] on the ground, and he asked me what was wrong, and I told him I had been hurt. And he moved the engine up then and got off and threw the switch himself.”

Jump, on the other hand, told a very different story. He stated:

“[I] approached the point and stopped the engine and the engine was headed south. [Plaintiff] disappeared out of my view to go around and throw the switch. He come back [sic] momentarily and said he couldn’t throw the switch. I got off the engine and tried to throw the switch and found it was inoperable, and we left the situation as it was.”

At his deposition, plaintiff related yet a third version of what had happened. He testified that after the switch stuck in a vertical position, “we brought the engine up about six inches of the point [where the switch was located], me and the engineer together. *** And he helped me throw it over. It would go then. And I went ahead and made the movement because it was all lined up, and I went and reported it because they was [sic] in a hurry for the train.” Plaintiff added that when the engine was positioned near the switch, “the switch almost fell over by itself.”

To be sure, these inconsistencies concerned events which occurred after plaintiff was allegedly injured. Nevertheless, they may have caused the jurors to question plaintiff’s veracity in general and, thus, to doubt that the switching accident took place as he claimed. Alternatively, the jury may not have believed that the switching accident was the proximate cause of plaintiff’s injuries. Deposition testimony from more than a dozen physicians was presented to the jury. That testimony, along with the testimony by plaintiff himself, established that plaintiff had a long history of physical injuries and ailments which began long before the February 18, 1981, switching incident. This included an injury to plaintiff’s lower back, which he sustained in a motor vehicle accident in 1945 while he was serving in the armed forces. From that time on, plaintiff continued to have lower back problems and arthritic complaints.

In 1977, plaintiff was involved in two accidents involving the throwing of a railroad switch. In the first incident he injured his right shoulder and missed work for 30 days. After the second incident, he missed no work. In 1978 he was robbed and beaten, as a result of which he was unable to return to work for 18 months. Less than three months after the February 18, 1981, incident, plaintiff was injured when his leg collapsed from under him while he was at home, and in the years that followed he received medical care for a variety of problems, including sinusitis, gout, an ear infection, and various problems with his cardiovascular system. With respect to his cardiovascular system, the most significant problem plaintiff had was unstable angina, a condition which alone would have prevented him from returning to work for the Railroad, regardless of any other ailments from which he may have suffered.

Although there was some testimony which indicated that the February 18, 1981, incident caused plaintiff to experience some muscle strain in the mid and upper portions of his back, including the area around his shoulders, and that these strains were not simply an aggravation of any of plaintiff’s preexisting conditions, one of plaintiff’s principle arguments was that the February 18, 1981, incident resulted in injury to his lower back. On this point, the evidence was, to say the least, highly controverted. As we have indicated, plaintiff’s lower back problems predated the February 18, 1981, incident by more than 35 years, and plaintiff himself has admitted on appeal that the record is replete with adverse medical testimony regarding his contention that his lower back problems were related to the February 18, 1981, incident.

In light of the foregoing, we agree with the Railroad that the jury could very well have concluded not only that plaintiff’s lower back problems were unrelated to the February 18, 1981, incident, but also that whatever other physical problems he had were attributable to previous and subsequent unrelated incidents and had nothing to do with the February 18, 1981, incident at all. Under these circumstances, we cannot say that the circuit court erred in refusing to enter judgment notwithstanding the verdict in favor of plaintiff on the issue of liability and in refusing to grant him a new trial on the question of damages. We likewise do not believe that the evidence was such that the circuit court should have granted plaintiff a new trial as to all issues.

Aside from the sufficiency of the evidence, plaintiff raises a number of additional grounds in support of his claim that he should have been granted a new trial. Of these, the only one which merits discussion is his claim that the circuit court erred in allowing one of plaintiff’s treating physicians, Dr. Marker, to give testimony regarding certain CT scans. Plaintiff argues that under Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert, denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232, Marker should not have been permitted to testify about the CT scans because one of the Railroad’s attorneys had had an ex parte communication with the doctor regarding the scans prior to the doctor’s deposition. We cannot accept this argument.

Petrillo held that a defendant’s attorney could be held in contempt of court for refusing to comply with a trial court’s order barring him from engaging in private, ex parte conferences with the plaintiff’s treating physicians. We have adopted the holding of Petrillo (see Roberson v. Liu (1990), 198 Ill. App. 3d 332, 336), which has been interpreted to mean that where ex parte communications have taken place between defense counsel and a plaintiff’s treating physician, allowing the physician to testify at trial constitutes reversible error, entitling the plaintiff to a new trial (Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519). Nevertheless, we do not believe that plaintiff is entitled to such relief here.

The holding of Petrillo was based on the strong public policy in favor of preserving the confidential and fiduciary relationship between a physician and his patient. In this case, the communication between defendant’s attorney and plaintiff’s physician could in no way have jeopardized that policy. The ex parte communication here was limited to a brief discussion, lasting no more than 30 seconds, prior to the physician’s deposition during which time the defendant’s attorney merely asked the physician if he had seen the plaintiff’s CT scans. The doctor indicated that he had not had time to review the scans prior to the deposition but that he had reviewed his notes and determined that the scans were not relevant to what he had treated the patient for. The attorney then apparently asked the physician whether he would then have time to review the scans, and the doctor indicated that it would take him about 5 or 10 minutes to do so and that because of the time factor he would go along with what the hospital radiologist had found regarding the results of those scans.

Plaintiff did not and could not establish that this communication resulted in any prejudice to him or that Dr. Marker’s conduct was in any way improper. Plaintiff nevertheless asserts that such prejudice and improper conduct should be implied as a matter of law based on the fact of the ex parte communication alone. We disagree. Plaintiff bases his argument on Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519, but in Yates, the defendants’ attorneys had had numerous meetings and communications with the patient’s physician regarding the patient’s medical condition while the plaintiff was still being treated by that physician. The communication here was de minimis, and it did not result in the disclosure of any private or confidential information regarding the patient.

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

Affirmed.

WELCH and CHAPMAN, JJ., concur.