author: JUSTICE LUND

text:
    CORA PRUITT et al., Plaintiffs-Appellants, v. DOROTHY SCHULTZ, Defendant-Appellee.
    Fourth District
    No. 4—92—0136
    Opinion filed October 15, 1992.
    David A. Tuggle, of Law Offices of Richard J. Doyle & Associates, of Danville, for appellants.

      William J. Brinkman, of Thomas, Mamer & Haughey, of Champaign, and Richard C. Hayden, of Craig & Craig, of Mattoon, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Six of thirteen plaintiffs in the medical malpractice action appeal from a summary judgment entered against them by the circuit court of Champaign County. The trial court held that the actions were barred by the statute of limitations under section 13 — 212 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212).

Plaintiffs contend the trial court erred in holding that section 13— 212 of the Code barred their actions. Alternatively, they contend that theories of equitable estoppel and the continuous course of treatment doctrine bar defendant from raising the statute of limitations. We need only consider the first contention.

I. Background

Dr. Dorothy Schultz, a specialist in neurology, diagnosed the six plaintiffs as having a rare condition known as myasthenia gravis (M.G.) and treated them for a number of years until she retired in June 1982. In simple terms, M.G. is a disease characterized by great muscular weakness and progressive fatigability. Because of an excess of a certain chemical, or lack of another chemical, nerve impulses fail to induce normal muscle contractions. Over a period of time, it may well lead to death. The disease is not easily diagnosed, and the medication usually prescribed (and prescribed by Dr. Schultz) can cause M.G. symptoms in a person not having the disease. When plaintiffs sought out other physicians to continue their care, they were informed that they did not have M.G. and they should discontinue medication. Each patient experienced a marked improvement in health after halting M.G. medication. Joseph Pelszynski and Nancy Miller filed their causes of action on June 18, 1984. The other four plaintiffs were added to the suit on an amended complaint filed on December 3, 1984.

The trial court based its dismissal on statements made in plaintiffs’ discovery depositions. Defendant contends that events occurred during the treatment of each patient that should have triggered an inquiry to determine whether a cause of action existed against defendant. Defendant successfully argued in the summary judgment proceedings that these suspicions were raised more than two years before the suit was filed against her and the causes therefore are barred by section 13 — 212 of the Code. Plaintiffs argue there is a genuine issue of material fact as to what point in time each plaintiff learned of the injury and, therefore, the court erred in granting a motion for summary judgment. Section 13 — 212 of the Code read, in relevant part:

“No action for damages for injury or death against any physician *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the injury or death for which damages are sought in the action ***.” Ill. Rev. Stat. 1983, ch. 110, par. 13-212.

The statute begins to run when plaintiff knows, or reasonably should know, of both the physical problem and also knew, or reasonably should have known, that it was wrongfully caused. (McIntyre v. Christ Hospital (1989), 181 Ill. App. 3d 76, 536 N.E.2d 882.) “Wrongfully caused” does not mean plaintiff must have knowledge of a specific defendant’s negligent act or knowledge that an actionable wrong was committed. Rather, a person knows, or reasonably should know, an injury is “wrongfully caused” when he possesses “sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81.) The plaintiff then has the burden to investigate further as to the existence of the cause of action. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) Whether the injured person has become possessed of sufficient information concerning his or her injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved is usually a question of fact. Knox College, 88 Ill. 2d at 416, 430 N.E.2d at 980-81.

In ruling on a motion for summary judgment, the trial court must consider the pleadings and evidentiary matters in the record in the light most favorable to the nonmoving party and accept as true all reasonable inferences from such facts which favor the nonmovant. It is improper to grant a motion for summary judgment where the material evidentiary facts are in dispute or where, when the facts are undisputed, reasonable minds might draw different reasonable inferences from such facts. (American States Insurance Co. v. Whitsitt (1990), 193 Ill. App. 3d 270, 549 N.E.2d 988.) As applied to the present case, whether plaintiffs knew or reasonably should have known, both of their injuries and that they were caused by a wrongful act, are genuine issues of fact to be determined by the finder of fact, unless only one conclusion may be drawn from the undisputed facts. Close questions on this issue should not be decided as a matter of law, but are best left for juries. McIntyre, 181 Ill. App. 3d at 81, 536 N.E.2d at 885-86.

II. Depositions

We first examine the statements in the depositions upon which the trial court based the summary judgments.

A. Dorothy Pratt (Action filed December 3,198f)

Dorothy Pratt was treated by Dr. Schultz from 1973 until defendant’s retirement in 1982. Dr. Schultz told Pratt at the outset that she should have a family doctor to take care of problems such as colds, et cetera. Shortly after her diagnosis of M.G., this family physician, Dr. Strzembosz, told Pratt he did not think she had M.G. When asked her reaction to this conversation, she replied, “Well, I believed her [(Dr. Schultz)].” She never sought a second opinion, and Strzembosz never recommended that she get one. Pratt saw Strzembosz once or twice a year from 1973 to 1982, and he discussed her M.G. on nearly every visit. She felt that Dr. Schultz was the expert and he was not and, therefore, believed Dr. Schultz.

Her husband also did not believe that she had M.G. and wanted her to see another doctor, but Pratt just did not want to. When asked if she felt that she was being properly treated at the time by Dr. Schultz, Pratt replied, “No, because I wasn’t getting any better.” As a possible result of taking the M.G. medication, Pratt began to develop ulcer problems in 1977 and was forced to go off the M.G. medication. Asked her opinion of Dr. Schultz in 1977, Pratt replied, “I didn’t think too much of her to be honest with you. *** She wasn’t doing me any good. *** She was guessing.” Despite these comments, she claims she did not really lose faith in Dr. Schultz during that year. She felt defendant could still do her some good, but she was displeased with the progress she was making.

In 1982, after defendant retired, Pratt saw another neurologist, Dr. Rajeswaren. He examined Pratt and said he did not think she had M.G. Pratt stated that before she saw Rajeswaren, she already knew that she did not have M.G. When her ulcers acted up in 1977, she temporarily stopped M.G. medication, but did not feel noticeably better. She was hospitalized for ulcers again in November 1981 and she again stopped the medication. This time, she felt much better. When asked when she first concluded that she did not have M.G., she replied, “In about ’82 when I got off of the medication and wasn’t taking it anymore.” Plaintiffs argue essentially that Pratt’s choice to believe the specialist rather than the general practitioner was a reasonable choice. There also appears to be a definite question as to exactly what time Pratt decided she did not have M.G. We only know it was sometime after November 1981.

B. Cora Pruitt (Action filed December 3,1984)

Cora Pruitt began treating with Dr. Schultz in April 1977, after being injured in a traffic accident. She was referred to defendant by Dr. Cuonzo, her family physician. Defendant diagnosed M.G. in 1977 and, in June 1978, a thymectomy was performed. Pruitt’s husband did not like Dr. Schultz and, just prior to surgery, he sent her to Chicago for a second opinion. The Chicago doctor concluded that “he could not say” that Pruitt had M.G. He wanted to hospitalize her for a week to run tests. After this consultation, but before the tests were run, Pruitt had another appointment with defendant and told her what the other doctor had said. After discussion with Dr. Schultz, she opted to follow her advice and have the thymectomy because “Dr. Dorothy was the finest doctor in the world *** the finest woman that ever walked the face of the earth.” The tests suggested by the Chicago doctor were never performed. Her condition improved after surgery as long as she avoided stress. Dr. Schultz recommended Pruitt to quit her job, go on social security, and divorce her husband.

Both before and after this surgery, Pruitt would go to her family physician, Dr. Cuonzo, for colds, et cetera. He told her on several occasions that he did “not for one minute believe” she was a myas-thenic and gave reasons why. Although he never explicitly recommended she get another opinion, he was certain she did not have M.G. He also criticized the medication defendant was having her take. Pruitt told him that “Dr. Dorothy” was the finest doctor and reminded him that he himself had recommended her.

Pruitt continued to take M.G. medication after defendant retired, until her prescription ran out. Dr. Cuonzo refused to refill her prescriptions, except those she was taking for a heart condition. When asked if there was anytime during her treatment with defendant that she felt the M.G. treatment was not benefitting her, she replied, “I continued to get worse, but then Doctor Dorothy would help me, and I would get better. I never gave up believing that.” When asked at what point she realized she did not have M.G., Pruitt replied, “Sometime after Doctor Dorothy left and I run out of medication and didn’t do anything about it.” When she stopped the medication, she felt 100% better.

Plaintiffs argue that the mere fact that a consulting doctor could not confirm the diagnosis is not the same as a doctor telling that Pruitt did not have M.G. Plaintiffs argue that a genuine issue of material fact exists as to whether the consulting opinion should have placed Pruitt on notice that Dr. Schultz’ treatment was inappropriate. Defendant argues that when the consulting doctor’s opinion is combined with the husband’s dissatisfaction with Schultz’ treatment, it is reasonable to expect Pruitt to have investigated further.

C. Joseph Pelszynski (Action filed June 18,1984)

Joseph Pelszynski began treatment with defendant in 1971, when he was admitted to the hospital for headaches. At this time, defendant diagnosed Pelszynski as having M.G. and treated him until she retired in June 1982. Pelszynski was told he would be unable to work and that he should apply for social security. He did so and received benefits until 1980 or 1981, at which time he received notice that his benefits would be cut off. Social Security sent him to its own doctor for a second opinion regarding his disability. Pelszynski saw Dr. Greenfield, who apparently gave him a list of questions to answer. Defendant described it as a “paper test like add, subtract, multiply, and divide.” Deposition testimony gives no indication that a medical examination was given.

Soon after, Pelszynski received notice of the termination of his benefits and complained to Dr. Schultz. She said, “Don’t worry about it. They’re not going to cut you off.” Pelszynski appealed the cutoff in what appears to be an administrative hearing, but the judge held that if Pelszynski was able to dress himself, then he was able to work.

Defendant claims that the cutoff of benefits should have put Pels-zynski on notice that he did not have M.G. Pelszynski responds persuasively that the government was merely saying that his impairment from M.G. was not so severe as to justify a rating of total disability. This conclusion is amply supported by deposition testimony, where Pelszynski indicates his feeling that social security benefits were just being given to fewer people. Pelszynski spoke to several other M.G. patients who had their benefits cut off and heard “that you really had to be dead or dying in order to get back on again. It was that bad.” Pelszynski did not suspect any wrongdoing on the part of Dr. Schultz, stating explicitly that throughout the entire 10 years of treatment, he was satisfied with the medical care received from defendant.

Sometime between 1978 and 1982, Dr. Rajeswaren was treating Pelszynski’s daughter in the hospital. When he learned that her father had M.G. for the last 10 years, he remarked to Pelszynski that anyone who had had it for so long would be either dead or bedfast. This doctor never reviewed Pelszynski’s medical records, nor did he examine Pelszynski. The conversation took place in a hospital hallway. Pels-zynski was never asked whether this caused him to doubt Dr. Schultz’ diagnosis. Although the date of this conversation is uncertain, the fact that the doctor mentioned a time period of 10 years suggests that the conversation may have occurred in 1981.

After Dr. Schultz retired, Pelszynski saw Dr. Adams in order to refill his prescription for M.G. medication. Adams refused, telling him he did not have M.G. Later, another doctor, Dr. Lantz, told Pelszynski he also did not think that he had M.G. At this point, Pelszynski quit taking the medication and began to feel a lot better. When asked at what point he first thought that he did not have M.G., he responded, “When I quit taking the medication and started feeling better.”

D. Cloyd Miller (Action filed June 18,1984)

Cloyd Miller appears easily confused and to have an extremely poor memory for dates. Dr. Schultz treated him for M.G. for nine years, seeing him on an average of every two weeks. He was initially treated by his family physician, Dr. McDonald, but after being treated by defendant, she told him not to see anyone else and to come to her for everything. When he was initially diagnosed by defendant as having M.G., he told her that he was considering getting a second opinion from Dr. Tether. While she did not explicitly tell him not to go, she said that she could take care of him. The testimony seems to imply that Dr. Schultz convinced him it would be unnecessary.

In 1977, Miller had a thymectomy as part of his treatment for M.G. According to his testimony, it was shortly after this surgery that he began to think that he did not actually have M.G. When asked for the basis of this opinion, he responded:

“A. [Miller:] Things going through my mind, you know, all the medication I’ve taken, *** and nothing was being done, and I just got — I just got restless.
Q. [Defense attorney:] You didn’t think that Doctor Schultz’ treatment was benefiting you?
A. I loved her. I trusted her, but that’s about the only way I can answer it. I trusted her and I loved her.”

When asked again whether he thought defendant’s treatment was benefiting him, he responded that he thought “she was trying her best to put me back.” When asked why he did not seek a second opinion, Miller said it was because he trusted her. Miller consulted with another doctor shortly after defendant retired. He was told that he probably never had the disease, and this diagnosis was subsequently confirmed by two other specialists. Miller had been taking M.G. medication for nine years without interruption. He claims that defendant told him of another patient who was not taking his/her medication regularly, and she mentioned that someday that person would go into a coma or something on that order.

Plaintiffs argue that the mere fact that Miller experienced doubts about the diagnosis of M.G. after his surgery in 1977 is not the same as having knowledge that he was being injured by his treatment. An argument can also be made that Miller was merely despondent after an extremely painful hospital stay. This is supported by the fact that Miller continued to treat with defendant for nearly five more years. Defendant argues it is reasonable to expect Miller to have sought a second opinion after his surgery in 1977.

E. Mary Blaney (Action filed December 3, 1984)

In 1980, after treating with defendant for about 10 years for M.G., Mary Blaney decided to get a second opinion at Barnes Hospital in St. Louis. Dr. Pintella told Blaney she did not think that she had M.G. and had her doubts that Blaney had ever been afflicted with the disease. She told Blaney to discontinue the M.G. medication. Blaney followed these orders, except for occasional use, when she felt “real bad” or “real weak.” Blaney’s general condition improved after halting the medication for M.G., but she continued to see Dr. Schultz for treatment of migraine headaches.

Sometime after her examination by Dr. Pintella, Blaney saw Dr. Tether in Indianapolis, who told her she did not have M.G. When asked at what point in time she decided that Dr. Schultz had possibly done something wrong, she replied, “After I talked to Doctor Tether and had talked to Doctor Pintella in St. Louis.” Blaney saw Dr. Pin-tella in 1980 and Dr. Tether at sometime after seeing Pintella, but before defendant retired in June 1982. Blaney also claimed that during the course of treatment she received from defendant, she never doubted that she actually had M.G. This statement conflicts with the one above which indicated that the doubt arose during treatment. When questioned why she never discussed these opposing opinions with Dr. Schultz, she replied, “I had a lot of faith in Dr. Schultz. I mean I thought she knew what was best, and I was, I thought, well, she is the doctor. She should know.”

Defendant’s brief, at page 10, states that Dr. Schultz told Blaney in 1980 that she did not have M.G. This statement is mistaken; Dr. Pintella had so advised Blaney — not Dr. Schultz. Plaintiffs persuasively argue that it is unclear at exactly what point Blaney became aware that she might have suffered an injury due to Dr. Schultz’ treatment. The question was never asked at deposition. Without knowing precisely when she saw Dr. Tether, we can only say that she began to have doubts sometime between 1980 and June 1982. She was asked if at anytime during her course of treatment with Dr. Schultz she had doubted whether the treatment being provided was beneficial. Blaney replied that she never doubted Dr. Schultz. When asked again whether she had doubts as to whether the treatment was actually benefiting her, she responded that she hoped it was. When asked to pinpoint the time that she began to feel that Dr. Schultz had done something wrong, she replied, “Well, in the first place, I didn’t want to believe I had anything wrong with me to start out with, and I just — well, I didn’t accept it, and that’s what she told me part of my problem was, ‘Well, you just won’t accept reality.’ ”

F. Linda Chandler (Action filed December 3, 1984)

Linda Chandler appears to have a remarkably poor memory and be easily confused. An argument could be made that her deposition testimony, filled with so many gaps, contradictions, and loss of recollection, is by its nature alone insufficient to form the basis of a summary judgment.

Chandler had no recollection of when she started or finished treating with defendant. According to interrogatories she answered in 1986, an unknown physician at Barnes Hospital in St. Louis told Chandler she was not suffering from M.G. At her deposition, Chandler retracted this answer, claiming that she had meant to say that they told her that further testing would be needed before they would know for certain whether she had M.G. Chandler had no present recollection of when this occurred.

On another occasion, an unknown physician at an unknown time told Chandler that if he were Dr. Schultz, he would not “jump too quickly on this,” apparently referring to the initial diagnosis of M.G. It is likely that this occurred soon after Chandler was first diagnosed, but Chandler later stated that it occurred after a couple of years of treating with Dr. Schultz.

Dr. Safman, who was in charge of the physical therapy ward at Mercy Hospital, suggested to Chandler that she might not have M.G. and further testing was needed. Chandler stated, at one point, that the conversation occurred early in her treatment, but later on stated that it happened a number of years into treatment. Also relevant is the fact that defendant treated two of Chandler’s sisters-in-law for M.G. Chandler said that this made her feel as though “something was not right.” No time frame was stated for this particular revelation.

At least three years into treatment, in September 1981, Dr. Schultz told Chandler that she might not have M.G. This conversation took place within a year after her visit to Barnes Hospital in St. Louis, and less than one year before defendant retired. Defendant continued to treat Chandler for lupus, until shortly before her retirement. When asked at what point she believed she had never had M. G., Chandler replied, “It was when Dr. Schultz changed her diagnosis.” When asked why she did not question it earlier, she responded that “if that woman would have told me to go out and let a semi run over me and I’d feel better, I would have done it. I believed anything that woman told me.” Despite being told in late 1981 that she did not have M.G., Chandler came to the conclusion that she had been harmed by defendant’s treatment sometime between 1982 and 1984.

At some undetermined date, Dr. Schultz sent Chandler to Chicago for further testing but, because of a mix-up in getting records to the Chicago physician, the examination was inconclusive. When asked if she had any doubts about Dr. Schultz’ diagnosis of M.G. after she returned from Chicago, she responded that she did not and that she trusted Dr. Schultz with her life.

III. Analysis

As we have said, the question of whether plaintiffs possessed sufficient information (concerning the injuries and the cause of the injuries to put a reasonable person on inquiry to determine whether actionable conduct is involved) is usually a fact question for the jury. (Knox College, 88 Ill. 2d at 416, 430 N.E.2d at 980-81; Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874.) When it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court. (Witherell, 85 Ill. 2d at 156, 421 N. E.2d at 874; Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 746, 544 N.E.2d 846, 850.) The complexity of the decision is accentuated by the inherent uncertainties of medical diagnosis and the faith necessarily reposed in doctors by their patients.

Both Witherell and Neaterour are somewhat instructive as to when the court should find as a matter of law that plaintiff possessed sufficient information to put a reasonable person on inquiry. Witherell suffered severe leg pains after starting birth control pills and was diagnosed by Dr. Weimer as having leg cramps. The situation worsened and continued for many years. Plaintiff was warned by her mother and others that the pills could cause blood clots, and another doctor had actually diagnosed blood clots in her legs. While equitable estop-pel was found applicable, the court stated:

“[I]t is, as in Berry, inconceivable to us that a reasonable person would not have realized, at least by the time of plaintiff’s second hospitalization in 1972, that she may not have been receiving proper diagnosis and treatment.” Witherell, 85 Ill. 2d at 157, 421 N.E.2d at 874.

In Neaterour, hip surgery was performed on plaintiff in April 1981 and afterward, while still in the hospital, defendant told her that the surgery had not gone according to plan. As a result of continued pain and discomfort, she sought the opinion of two other physicians (in October 1981 and March 1982), both of whom advised her that she had not received proper treatment. Even so, she continued to treat with defendant through May 10, 1982. She filed suit in May 1984, and this court held that her cause of action was time-barred.

In the present case, deposition testimony establishes that defendant gave the appearance of a dedicated, caring, and capable physician. Her patients' perception of her knowledge and authority is undoubtedly amplified by her status as a specialist in neurology. Dependence and reliance on her medical advice is therefore to be expected. Our supreme court in Witherell placed great emphasis on the doctor-patient relationship, noting that a patient will often accept a doctor’s recommendation without question. (Witherell, 85 Ill. 2d at 159, 421 N.E.2d at 876.) It is within this complex environment of trust and authority that a court is called upon to determine the particular moment in time that a patient should reasonably be expected to doubt his or her physician’s advice.

The complexity of this determination is enhanced by the fact that medication prescribed by defendant may have created symptoms in her patients that mimic symptoms of a person afflicted with the actual disease. Realization that their physician’s advice was erroneous is necessarily linked to the discontinuation of their medication. Evidence of the specific time when each patient discontinued this M.G. medication is lacking.

Regardless of the fact that some of the appealing plaintiffs saw other doctors who questioned the M.G. diagnosis, we hold that reasonable minds might draw different reasonable inferences from the facts. In this case, the determination whether, and when, the various plaintiffs possessed sufficient information as to put a reasonable person on inquiry to determine whether actionable conduct was involved is a question better left for the jury.

In remanding this case for trial, we are aware that the issue of equitable estoppel may arise. Estoppel is also ordinarily a question of fact, unless there is no dispute of material fact and only one inference can be drawn therefrom. Then it becomes a question of law. (Neaterour, 188 Ill. App. 3d at 750, 544 N.E.2d at 852; Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 369, 335 N.E.2d 491, 494.) The present record is far from complete on what defendant said and did that might trigger equitable estoppel.

Reversed and remanded.

STEIGMANN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK M. BROWN, Defendant-Appellant.
    Fourth District
    No. 4—92—0250
    Opinion filed October 15, 1992.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On January 24, 1992, defendant, Mark M. Brown, appeared in Champaign County circuit court on two unrelated traffic charges. As a result of his behavior in court, the trial court found him to be in direct criminal contempt of court in each case and sentenced him for his contempt in each case to 180 days in the Champaign County Correctional Center, with each sentence to run consecutively to the other. On appeal, defendant challenges only the sentences, arguing (1) the trial court improperly convicted him of two counts of direct criminal contempt because each count was based on the same conduct; and (2) the trial court improperly imposed consecutive sentences.

We hold that the trial court erred in imposing consecutive sentences.

I. Background

The trial court filed written orders of direct criminal contempt in each case. Because those orders constitute the entire record of the events leading to the findings of contempt, we quote both orders in their entirety as follows:

Champaign County Case No. 91 — T—16517
“This cause coming on for a sentencing hearing on January 24, 1992. The People were present by [an assistant State’s Attorney]. The defendant was present along with his attorney ***. After the Court denied a Motion to Continue, the defendant was sentenced pursuant to his agreement in the above captioned cause to 21 days[’] incarceration in the Champaign County Correctional Center with credit for four days heretofore served. The defendant was then remanded to the custody of the Sheriff and told to go with the Correctional Officer. The following occurred:
1. The defendant started walking away[ ] from the Court Officer as she was preparing recognizance bond papers in 92 — T— 1106.
2. The defendant was walking towards the door and the Court then yelled the defendant’s name twice. While the Court was calling to the defendant, the Court heard the Court Officer also calling to the defendant.
3. The defendant flung open the courtroom door and ran.
4. The Court Officer chased the defendant but did not catch him.
5. The defendant was immediately held in direct criminal contempt of court.
Wherefore, the Court finds:
A. That the Court has jurisdiction over the subject matter and the parties hereto.
B. That the defendant was remanded to the custody of the Sheriff and told to go with the Correctional Officer.
C. That the defendant initially went with the Correctional Officer and then started to walk out of the courtroom[.]
D. That the Court called the defendant’s name twice and the Court Officer also called the defendant’s name but the defendant kept walking out of the courtroom.
E. That the defendant flung open the courtroom door and fled.
F. That the defendant’s conduct was done with the intent to hinder the Court in its functions and to impede the administration of justice and to put the Court in disrepute.
G. That the defendant’s actions were willful.
H. That the Defendant is in direct criminal contempt of court.
Wherefore, it is ordered that the defendant is in direct criminal contempt of court. The defendant is ordered incarcerated in the Champaign County Correctional Center to a term of 180 days consecutive to the 21[-]day sentence heretofore entered. Further, these two sentences are to be served consecutive[ly] to the 180[-]day[] direct criminal contempt of court sentence in 92 — T—1106.”
Champaign County Case No. 92 — T—1106
“This matter having been called on an arraignment for the defendant on January 24, 1992. People were appearing by [an assistant State’s Attorney] and the defendant appeared with appointed counsel ***. The defendant was arraigned on this cause and two companion tickets. At that time he was allowed to be released on his own recognizance, even though he had been sentenced and was remanded to the custody of the Sheriff in 91 — T—16517. The Court then told the defendant to step to the back of the courtroom with the Court Officer and sign the bond papers prepared for him. The defendant stepped to the back of the courtroom with the Court Officer and then started walking away. As the defendant neared the door, the Court yelled out his name twice. While the Court was calling the defendant’s name, the Court heard the Court Officer also calling the defendant’s name. The defendant flung the door open and ran. The Court Officer chased after the defendant. The Court Officer returned approximately 15 or 20 minutes later and she had not yet found the defendant. The Court finds as follows:
1. That it has jurisdiction of the subject matter[ ] and parties hereto.
2. That the defendant was told to step to the back of the courtroom with the Court Officer to sign the paperwork.
3. That the defendant did not sign the paperwork.
4. That the defendant moved towards the door and did not stop when the Court called his name twice. That the Court Officer was further calling to the defendant.
5. That the defendant left the courtroom and fled.
6. That the conduct was done by the defendant with the intent to hinder the Court in its functions and to impede the administration of justice and to put the Court in disrepute.
7. That the defendant[’]s actions were willful.
8. That the defendant is in direct criminal contempt of court.
Wherefore, it is ordered that the defendant is in direct criminal contempt of court. That the defendant is sentenced to 180 days[’] incarceration in the Champaign County Correctional Center consecutive to the Order of Contempt issued in 91 — T— 16517 and consecutive to any sentence imposed in 91 — T— 16517. Further, that this order of 180 days[’] incarceration is to be served consecutively] to any imprisonment that may be ordered if the defendant is found guilty in this cause, 92 — T— 1106.”

In February 1992, defendant filed a motion to reconsider sentence, which raised the same sentencing issues that defendant now raises on appeal. The trial court denied that motion.

II. Was Each Conviction Of Direct Criminal Contempt Based On The Same Physical Act?

Defendant first argues that the trial court improperly entered two convictions of direct criminal contempt because each charge was based on the same physical acts. Defendant claims that the trial court’s findings reveal that each contempt is based on the same physical acts. Citing People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45, defendant maintains that this court cannot permit both contempt convictions to stand.

In response, the State cites People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802, 805, wherein the supreme court cited approvingly a law review article that analyzed various interpretations of the King decision and concluded as follows:

“ ‘[I]f a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. [(Emphasis added.)] If the physical acts are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed. If exactly the same physical act does form the basis for more than one offense, a defendant may still be prosecuted for each offense, but only one conviction and sentence may be imposed.’ Eisenberg, Multiple Punishments for the ‘Same Offense’ in Illinois, 11 S. Ill. U. L.J. 217, 236-37 (1987) [(hereinafter Eisenberg)].”

Following Segara, the State then argues as follows:

“It is clear that there were two physical acts, each supporting and corresponding to a separate count of contempt. In No. 91 — T—16517, the contemptuous act was failure to remain in custody of the correctional officer. In No. 92 — T—1106, the contemptuous act was failure to sign the recognizance bond paperwork. Although these two acts were part of the same transaction, each was a separate physical act.”

We agree with the State’s position and find no error in the trial court’s imposing two separate convictions for direct criminal contempt.

III. Imposition Op Consecutive Sentences Op Six Months For Each Count Of Direct Criminal Contempt

Defendant next argues that the trial court erred in imposing consecutive sentences on each conviction of direct criminal contempt because each was based on a single course of conduct. In support of this argument, defendant cites section 5 — 8—4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a)), which provides in pertinent part as follows:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective ***.”

In People v. Willis (1990), 204 Ill. App. 3d 590, 595, 561 N.E.2d 1376, 1379-80, this court discussed the term “conduct” as used in section 5 — 8—4(a) of the Code and wrote the following:

“The term ‘conduct’ refers to an act or series of acts and the accompanying mental state. (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 4.) Accordingly, *** the imposition of consecutive sentences depends upon both the existence of separate acts and separate motivation behind those acts.”

In Willis, this court vacated in part a trial court’s order imposing consecutive sentences for defendant’s convictions of (attempt) escape and two counts of aggravated battery because all three convictions arose from the same motivation — escaping from the Vermilion County jail. (There, the consecutive term was vacated and defendant’s term of imprisonment for (attempt) escape was ordered to be served concurrently with the sentences for aggravated battery.) We find Willis similar to the facts in the present case because, as in Willis, defendant here sought to escape from the court’s jurisdiction as he ran from the courtroom. That motivation accounted both for his flight in disregard of the court’s order of incarceration (in Champaign County case No. 91 — T—16517) and his failure to sign the documents the court had ordered him to sign (in Champaign County case No. 92 — T—1106). See also People v. Parker (1986), 141 Ill. App. 3d 643, 646, 490 N.E.2d 1076, 1078 (consecutive sentences modified to run concurrently where all of defendant’s crimes occurred in a 10-minute time span, were confined to a limited area, and defendant did not demonstrate any change in his criminal intent); Eisenberg, 11 S. Ill. U. L.J. at 237 (“If the physical acts [a defendant commits during one episode or transaction] are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed”).

In response to this argument, the State contends that section 5 — 8—4(a) of the Code does not apply to sentences imposed for criminal contempt. The State maintains that section 5 — 8—4(a) of the Code governs the imposition of consecutive sentences for offenses and that criminal contempts do not come within the definition of “offense,” as defined in section 5 — 1—15 of the Code, which reads as follows:

“ ‘Offense’ means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this State or by any law, local law or ordinance of a political subdivision of this State, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 1—15.

We disagree with this argument and find it inconsistent with the decision of this court in People v. Townsend (1989), 183 Ill. App. 3d 268, 270, 538 N.E.2d 1297, 1299, wherein the court wrote that “[c]riminal contempt is a crime.” (See also People v. Siegal (1948), 400 Ill. 208, 209, 79 N.E.2d 616, 617 (criminal contempt “is a crime against the court and against the people and is a misdemeanor”).) In addition, the inherent authority of the Illinois judiciary to punish contemnors derives from article VI of the Constitution of 1970, which establishes the Illinois judiciary. (Ill. Const. 1970, art. VI.) Surely article VI of the State Constitution falls within the reference in section 5— 1 — 15 of the Code to “any law of this State.” (See Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 1—15.) That a sentence of imprisonment or a fine is not explicitly provided in the constitution for contemnors does not matter; that the constitution provides the inherent authority for courts to sentence contemnors suffices, for purposes of section 5 — 1— 15 of the Code, to deem criminal contempt an “offense.”

We also believe that our construction of section 5 — 8—4(a) of the Code as applying to criminal contempts might be constitutionally required. In In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 50, 558 N.E.2d 404, 420, this court wrote the following:

“When the aggregate punishments for a particular course of criminally contemptuous conduct committed in the presence of a judge exceed the parameters of punishments normally imposed for misdemeanors and the punishments are not imposed immediately after occurrence of the contemptuous conduct, the contemnor is entitled to a jury trial as to the contempt charges. (Bloom [v. Illinois (1968)], 391 U.S. [194,] 208-11, 20 L. Ed. 2d [522,] 533-34, 88 S. Ct. [1477,] 1486-87; United States v. Seale (7th Cir. 1972), 461 F.2d 345, 352-56.) The traditional test for determining whether or not a charged offense is a misdemeanor is whether the penalties exceed $500 or six months’ imprisonment. (Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444; Baldwin v. New York (1970), 399 U.S. 66, 70-71, 26 L. Ed. 2d 437, 441, 90 S. Ct. 1886, 1889; [citation].)”

In Codispoti v. Pennsylvania (1974), 418 U.S. 506, 41 L. Ed. 2d 912, 94 S. Ct. 2687, the United States Supreme Court considered a case in which the defendants were convicted of several separate charges of direct criminal contempt based on their conduct during the course of their criminal trial. For each contempt conviction, each defendant received individual sentences which did not exceed six months. However, the trial court ordered them served consecutively, which aggregated them to approximately three years. The Supreme Court held that on these facts, the sixth amendment required a jury trial, and the Court explained its holding as follows:

“We find unavailing [the State’s] *** argument that [defendants’] contempts were separate offenses and that, because no more than a six months’ sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding [the State’s] characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired.” Codispoti, 418 U.S. at 517, 41 L. Ed. 2d at 922, 94 S. Ct. at 2693-94.

Because defendant in the present case was not afforded a jury trial on his direct contempt convictions, the sixth amendment considerations discussed by the Supreme Court in Codispoti apply here as well. Thus, we construe section 5 — 1—15 of the Code as applying to criminal contempts because not doing so would risk violating the sixth amendment rights of contemnors.

IV. Conclusion

For the reasons stated, we affirm the defendant’s convictions for direct criminal contempt, vacate the consecutive sentences, and remand with directions that the trial court amend the sentencing orders to reflect that the 180-day sentences imposed for each conviction of direct criminal contempt be served concurrently to the other, though consecutive to the sentence imposed in case No. 91 — T—16517, and the sentence (if any) imposed in No. 92 — T—1106.

Convictions affirmed; sentences vacated, and cause remanded with directions.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE COOK

text:
    EDWARDSVILLE SCHOOL SERVICE PERSONNEL ASSOCIATION, IEA-NEA, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—91—0903
    Opinion filed September 24, 1992.
    Gregory J. Malovance, William G. Miossi, and Steven E. Mitchel, all of Winston & Strawn, of Chicago, and Wanda Van Pelt, of Illinois Education Association-NEA, of Edwardsville, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Stephen A. Yokich and Mark S. Stein, both of Cornfield & Feldman, of Chicago, for respondent Edwardsville IFT-AFT.
   JUSTICE COOK

delivered the opinion of the court:

Petitioner, Edwardsville School Service Personnel Association, IEA-NEA, seeks administrative review of the order of the Illinois Educational Labor Relations Board (Board) (Edwardsville Community Unit School District No. 7, 8 Pub. Employee Rep. (Ill.) par. 1003, Nos. 91 — RC—0022—S, 91 — RC—0023—S (Illinois Educational Labor Relations Board, Nov. 21, 1991) (hereinafter 8 Pub. Employee Rep. (Ill.) par. 1003)), finding that certain bargaining units were appropriate for collective bargaining purposes and ordering that a severance election be held. Petitioner also seeks review of the order certifying it as the exclusive bargaining representative for the existing unit.

On appeal, petitioner argues (1) the Board applied the wrong standard in determining whether a severance election should be authorized: that the decision ought not be based solely on whether the terms and conditions of employment of employees in a proposed unit are sufficiently specialized, unique, or different from other employees in the historical unit but should also require a showing that the incumbent has provided ineffective and unresponsive representation or the proposed unit has a demonstrated conflict with other segments of the existing unit (see City of Chicago, 2 Pub. Employee Rep. (Ill.) par. 3015, No. L — RC—85—17 (Illinois Local Labor Relations Board, June 2, 1986)); (2) the Board’s decision allowing a severance election was against the manifest weight of the evidence, even under the standard applied; and (3) the Board exceeded its authority by looking beyond the petitioned-for units to establish an appropriate bargaining unit.

Since 1983, petitioner has been the exclusive bargaining representative of all classified or noncertified employees at Edwardsville Community Unit School District 7 (District). This bargaining unit is comprised of educational assistants, supervisors and monitors, cafeteria employees, clerks, custodial employees, maintenance workers and secretaries.

On April 29, 1991, the Edwardsville Federation of Secretarial Employees, IFT-AFT, filed a representation petition with the Board, pursuant to section 7(c)(1) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 1707(c)(1)), seeking certification as the exclusive bargaining representative of a unit comprised of all secretarial employees, excluding the director of data processing, the secretary to the region II special education director, the secretary to the superintendent, the secretary to the assistant superintendent, the secretary to the assistant superintendent/personnel, the secretary to the director of business/finance, the district bookkeeper, and any other category of secretarial employee excluded by law. On May 10, 1991, the Edwardsville Federation of Educational Assistants, IFT-AFT, filed a similar petition, seeking certification as the exclusive bargaining representative of a unit of educational assistants, consisting of institutional and reading assistants, special education assistants, and extraordinary care assistants.

Petitioner and District 7 objected to the petitions. The acting executive director of the Board issued an order consolidating the petitions, and because a question of representation existed, a hearing was held on these petitions on May 20 and 21, 1991. At the hearing, the federations argued the existing unit of classified employees should not be treated as a historical unit entitled to special protection under the Act (see Ill. Rev. Stat. 1991, ch. 48, par. 1707(a)), and the petitioned-for units were appropriate units within the meaning of the Act. Conversely, petitioner asserted that the current unit was a historical unit, and the units sought by the federations were inappropriate because they did not have a special or unique community of interest. The District also contended the units sought were inappropriate because they would result in unit fragmentation.

On July 31, 1991, the hearing officer issued a recommended decision and order. (Edwardsville Community Unit School District No. 7, 7 Pub. Employee Rep. (Ill.) par. 1092, Nos. 91 — RC—0022—S, 91— RC — 0023—S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, July 31, 1991) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1092).) He held the current bargaining unit of classified employees of the District was a historical unit entitled to protection under section 7(a) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 1707(a)) (7 Pub. Employee Rep. (Ill.) par. 1092, at IX — 358 through IX — 359); the two petitioned-for units were inappropriate within the meaning of the Act because the units would result in unit fragmentation (7 Pub. Employee Rep. (Ill.) par. 1092, at IX — 359); and a combined unit of educational assistants and secretaries was an appropriate unit for bargaining (7 Pub. Employee Rep. (Ill.) par. 1092, at IX — 359 through IX — 360). He directed that an election be held among the educational assistants and the secretaries to determine whether they wanted to be represented by either of the federations or the petitioner. The hearing officer ordered that an election first be held among all the educational classified employees of the District to determine if a majority of noncertified educational employees would permit the educational assistants and secretaries to sever from the existing bargaining unit. 7 Pub. Employee Rep. (Ill.) par. 1092, at IX — 360.

All parties filed timely exceptions to the hearing officer’s decision and order. On September 11, 1991, the Board issued an order affirming the hearing officer’s conclusion that the current unit of classified employees was a historical unit, but reversing his determination as to unit appropriateness. It held that the existing collective-bargaining unit of classified employees was appropriate; a separate bargaining unit of educational assistants was appropriate; and a separate bargaining unit of secretarial employees was inappropriate, but a combined unit of secretaries and clerical employees (for whom no one had petitioned) was appropriate. Because the current bargaining unit was a historical unit, it directed an election be held among all employees in the current unit to vote on whether the educational assistants and secretarial employees and clerks should be allowed to sever from the existing unit. If the employees voted in favor of severance, it ordered that the educational assistants and the secretaries and clerks then vote on whether they wanted to be represented by the petitioner, the federations, or no representative.

An election was held on October 29, 1991. One hundred forty ballots were cast, none of which were challenged. Sixty-two votes were cast for allowing severance; 78 were cast against. Since a majority of votes were cast against severance, the Board on November 6, 1991, issued an order certifying that petitioner remained the exclusive representative of all classified employees at District 7.

On November 21, 1991, the Board issued an opinion and order explaining and supporting its September 11, 1991, order. (8 Pub. Employee Rep. (Ill.) par. 1003.) The Board stated the standard established in University of Illinois, 1 Pub. Employee Rep. (Ill.) par. 1136, No. 84 — RD—0002—S (Illinois Educational Labor Relations Board, June 26, 1985), Southern Illinois University (Carbondale), 3 Pub. Employee Rep. (Ill.) par. 1072, No. 86 — RC—0024—S (Illinois Educational Labor Relations Board, June 16, 1987), and Southern Illinois University (Carbondale), 3 Pub. Employee Rep. (Ill.) par. 1095, No. 86 — RC—0024—S (Illinois Educational Labor Relations Board, July 23, 1987), governing whether severance elections should be held, was whether the terms and conditions of employment of the employees in the petitioned-for unit were so specialized, unique or different from those of the other employees in the unit that they should be afforded the opportunity to be separated from the overall unit. (8 Pub. Employee Rep. (Ill.) par. 1003, at IX — 14.) In applying this standard, the Board concluded that there was sufficient basis to warrant a severance election among the employees of the historical unit to determine whether the educational assistants and the secretaries/clerical employees should be able to seek separate representation. It further stated it continued to adhere to a two-step analysis in severance cases, i.e., “first to determine if severance is appropriate (using the University of Illinois/Southern Illinois University standard), and second to determine if the units sought for severance are appropriate units (using our traditional Section 7 standards).” (8 Pub. Employee Rep. (Ill.) par. 1003, at IX — 15.) Petitioner then brought this appeal.

We first consider the Board’s argument the appeal is moot because no effectual relief can be granted. The federations raise the related jurisdictional argument that petitioner has not been “aggrieved” by a final order from which it can appeal (see Ill. Rev. Stat. 1991, ch. 48, par. 1707(d)).

An issue is considered moot if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief. (Wheatley v. Board of Education of Township High School District 205 (1984), 99 Ill. 2d 481, 484-85, 459 N.E.2d 1364, 1366; People v. Meece (1987), 162 Ill. App. 3d 658, 660, 515 N.E.2d 1321, 1322.) The supreme court has held that a reviewing court must dismiss a pending appeal where the court has notice of facts which make it impossible to grant effective relief to either party. (People v. Boclair (1987), 119 Ill. 2d 368, 372, 519 N.E.2d 437, 438.) Courts are to decide actual controversies, and are not to decide moot or abstract questions, review cases merely to establish precedent, or render advisory opinions. (Condon v. American Telephone & Telegraph Co. (1990), 136 Ill. 2d 95, 99, 554 N.E.2d 206, 208; People ex rel. Partee v. Murphy (1990), 133 Ill. 2d 402, 408, 550 N.E.2d 998, 1001.) Courts of review will generally not consider issues where the results are not affected regardless of how the issues are decided. (Condon, 136 Ill. 2d at 99, 554 N.E.2d at 208.) When it becomes apparent that an opinion cannot affect the results as to the parties or the controversy before it, the court should not resolve the question merely for the sake of setting a precedent or to govern potential future cases. Partee, 133 Ill. 2d at 408, 550 N.E.2d at 1001; Meece, 162 Ill. App. 3d at 660, 515 N.E.2d at 1322; Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251, 384 N.E.2d 1309, 1311.

After careful consideration of the record before us, we hold the issues on appeal are moot. An election was conducted pursuant to the Board’s order, and the existing unit voted not to allow severance. Petitioner, therefore, remained the exclusive representative of the existing bargaining unit, and the Board subsequently certified it as such. Under these circumstances, it cannot be said petitioner has an interest remaining that justifies our reaching the issues. Even if it were to prevail on the merits, the judgment would not have any practical effect in the instant controversy. It is clear that our resolution would not affect the result of the election or petitioner’s status as the exclusive bargaining representative for the classified employees of the District. The fact that petitioner can gain nothing as to these petitions if its position is upheld establishes that there is not a controversy in which this court can grant effective relief. Consequently, resolution of the issues on appeal will be nothing more than an advisory opinion.

It is equally clear the instant case does not fall within the recognized exceptions to the mootness doctrine. An exception to the mootness doctrine exists where the issue is likely to recur, and because of the short duration of the action involved, it would ordinarily be terminated before the question could be resolved by a court. (Erday’s Clothiers, Inc. v. Spentzos (1992), 228 Ill. App. 3d 540, 550, 592 N.E.2d 615, 622; Meece, 162 Ill. App. 3d at 660, 515 N.E.2d at 1322.) This exception is limited to those situations where (1) the challenged action is in its duration too short to be fully litigated prior to its cessation, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. People v. Bailey (1983), 116 Ill. App. 3d 259, 261-62, 452 N.E.2d 28, 30-31.

The foregoing factors are not satisfied in this case. Although a new representation petition may be filed again by the federations within the time constraints set forth in section 7(c)(2) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 1707(c)(2)), and therefore the situation may be capable of repetition, the challenged actions of the Board are not such as to evade review. If the same situation occurred again but this time the employees voted to allow severance and the severed units did not choose petitioner as their bargaining representative, petitioner could then seek meaningful review of those issues. Accordingly, it cannot be said that the issues are such as would otherwise evade administrative review.

Illinois courts also recognize an exception to allow a court to resolve moot issues when they involve a substantial public interest. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, 104 N.E.2d 769, 772.) To determine whether the requisite degree of public interest exists requires examination of three elements: (1) the public nature of the question presented; (2) the need for an authoritative determination for the future guidance of public officials; and (3) the likelihood of reoccurrence of the question. (Wallace, 411 Ill. at 622, 104 N.E.2d at 772; City of Chicago v. Leviton (1985), 137 Ill. App. 3d 126, 129, 484 N.E.2d 438, 439-40; Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 344, 546 N.E.2d 651, 654.) Illinois courts apply the public interest exception narrowly and require each criterion to be met to avoid dismissal of moot questions on appeal. (Chicago, 137 Ill. App. 3d at 129, 484 N.E.2d at 440; Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527, 430 N.E.2d 139, 141.) The public interest exception is invoked only on rare occasions where the degree of public interest and concern is “very clear” (People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 164, 116 N.E.2d 880, 882) and an “extraordinary degree of public concern and interest” is involved (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 380, 121 N.E.2d 486, 488). See also Partee, 133 Ill. 2d at 410, 550 N.E.2d at 1002; Hamer v. Board of Education of Township High School District No. 113 (1986), 140 Ill. App. 3d 308, 316, 488 N.E.2d 1096, 1102.

The issues on appeal do not so affect the public interest as to bring this case within the purview of the exception. Compare Berrios, 190 Ill. App. 3d at 344, 546 N.E.2d at 654-55 (court decided whether directives adopted by Illinois Industrial Commission were void, even though plaintiff had settled his claim, because issue was one of first impression and concerned all employees and employers defending claims before the Commission); In re Haymer (1983), 115 Ill. App. 3d 349, 356-57, 450 N.E.2d 940, 946 (appeal from trial court’s order determining when legal death of child occurred for purposes of discontinuing life-support system was not rendered moot by fact that child died thereafter because refusal to consider the issue would render date of death uncertain); Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71, 76-77, 410 N.E.2d 98, 103-04, rev’d on other grounds (1981), 86 Ill. 2d 390, 427 N.E.2d 162 (court reviewed an administrative decision to allow a steel mili to discharge noxious fumes because of the importance of environmental matters to the public health, despite the fact that certain regulations had been changed); People v. Clayborn (1980), 90 Ill. App. 3d 1047, 1052, 414 N.E.2d 157, 161 (court considered whether the failure to detain a juvenile without a hearing within 36-hour period required release until hearing was held, even though hearing had been held after statutory period and juvenile was released); In re Estate of Brooks (1965), 32 Ill. 2d 361, 364-65, 205 N.E.2d 435, 437-38 (even though blood transfusion had been given, court addressed the issue of whether an incompetent adult may be judicially compelled to accept treatment which will preserve her life but is forbidden by religious convictions and which has been previously refused); Wallace, 411 Ill. at 622-23, 104 N.E.2d at 772 (considered issue of whether parents can prevent an infant from receiving a needed blood transfusion on religious grounds, even though the infant had received the transfusion).

While severance cases will come before the Board again and petitioner has an institutional interest in the standard for resolving them, it won the election and the issues it now seeks to raise do not effect the extraordinary degree of public interest needed to require their resolution here. A judicial interpretation of the Act is not of such public importance as to fall within the strictures of the exception.

Moreover, it is not primarily the public interest which petitioner seeks to advance but an institutional interest in protecting its position as the incumbent bargaining representative. While the test petitioner argues the Board ought to have employed would minimize fragmentation of bargaining units, it would interpose a significant burden to severance and so limit employees in the exercise of their options and rights guaranteed by the Act. These factors reinforce our decision that the public interest in this case does not overcome the factors which make the case moot. For the exception to apply, all factors must be shown, and here they are not.

For the foregoing reasons, the controversy is moot, and we dismiss the petition for review.

Appeal dismissed.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE DUNN

text:
    SHIRLEY MICHAEL, Petitioner-Appellee, v. FANSTEEL, INC., Respondent-Appellant.
    Second District
    No. 2—91—1376
    Opinion filed October 8, 1992.

      Julian Johnson, of Waukegan, for appellant.
    Steven A. Globis, of Marszalek & Marszalek, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Fansteel, Inc., appeals from the judgment of the circuit court in favor of petitioner, Shirley Michael, and the order denying its petition for an order of satisfaction of the judgment. Respondent argues that the circuit court erred by not entering a satisfaction of the judgment based on a tender of payment and a showing of payments made prior to the entry of the judgment.

The matter in the circuit court arose as a petition for an entry of judgment based on a worker’s compensation award under section 19(g) of the Workers’ Compensation Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(g)). Petitioner had received a determination from the arbitrator that she was entitled to $6,874.53. In addition, the Industrial Commission (Commission) later awarded $3,402.27 as a penalty under section 19(k) (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(k)) as a sanction for an unreasonable or vexatious failure to pay the previous award. Petitioner sought the entry of an enforceable judgment by the circuit court based on these awards.

Respondent contended that the awards were erroneous and unjust because it was contesting a double recovery awarded to petitioner. The arbitrator did not credit respondent for the amount it had paid petitioner for holiday pay during the period she was also receiving total temporary disability (TTD) payments prior to the final award. Respondent attempted to correct the error amicably with petitioner’s attorney without the necessity of resorting to commencing a review proceeding. However, petitioner’s attorney refused the tender of the award with a credit for the holiday pay and then commenced the petition for the penalty and the petition to enroll a judgment, from which this appeal arises.

In particular, the arbitrator based his award on the following calculations:

Respondent alleged that prior to the arbitration hearing petitioner submitted a memorandum which specified her amount of time spent on TTD and the amount of benefits already paid to her, which she listed as $4,955.73. Respondent contested that figure and stated it had paid only $4,612.26; respondent mistakenly failed to include the holiday pay in the interim benefits. The arbitrator then used the lower figure as submitted by respondent as a credit against the final net award.

After the arbitration hearing, respondent contended that petitioner received five days of holiday pay, which should have reduced the amount of time on TTD by five days; in addition, respondent paid the holiday pay at full scale, rather than at the two-thirds scale specified for TTD. Using this calculation, respondent claimed only $6,285.67 was the total net award, a difference of $588.66 from the actual net award.

On March 20, 1990, respondent’s attorney sent petitioner’s attorney a letter outlining the error and offering to resolve the dispute out of court without the necessity of filing a petition for review, which, respondent’s attorney noted in the letter, would have to be filed by April 11. Having no response, respondent’s attorney sent a second letter by electronic facsimile on April 9 and again on April 19. Petitioner’s counsel did not acknowledge the letters until April 16, and on April 25, 1990, demanded payment of the arbitrator’s award in full. The attorneys sent more letters to each other arguing over the propriety of the double payment. On June 13, respondent’s attorney mailed a check to petitioner’s attorney for $6,285.67, which did not include the disputed amount. On June 27, petitioner’s attorney mailed it back to respondent’s counsel.

Petitioner then requested the assessment of a penalty pursuant to section 19(k). The Industrial Commission held that respondent failed to file a motion to correct the award pursuant to section 19(f) (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(f)) and therefore the award was final. The Commission further held that respondent had no right to contest the amount due and thus found its delay in making payment unreasonable. Section 19(k) required a penalty in the amount of 50% of the total award; in this case, the penalty was $3,402.27. Respondent filed a petition for review before the circuit court on the 28th day following this award; however, section 19(f) provides that the petition must be filed within 20 days, and the proceeding was dismissed.

Petitioner next petitioned the circuit court in the instant cause for the entry of a judgment based on the arbitrator’s award, the penalty and her attorney’s fees. Respondent objected to the petition and moved for a satisfaction of judgment. The trial court found that the decision of the Industrial Commission was not against the manifest weight of the evidence and upheld both awards. On November 1, the court entered an order determining that respondent owed petitioner $6,874.53 plus $3,402.27.

On November 20, respondent moved for a satisfaction of the November 1 judgment and appended copies of the checks it used to pay petitioner her interim benefits and the checks it had tendered to her. The total of these checks, which included the holiday paycheck and the tendered $6,285.67, allegedly would have totaled the amount of the judgment. The trial court denied the motion, and respondent filed a notice of appeal on November 27.

In a proceeding to enter a judgment based on a worker’s compensation award under section 19(g), the circuit court’s inquiry is limited to a determination of whether the petitioner has met the requirements of the section. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268.) The circuit court may not review the Commission’s decision or construe the statute. (73 Ill. 2d at 268.) Only tender of full payment of the final award is a defense to a section 19(g) petition. (Voorhees v. Industrial Comm’n (1964), 31 Ill. 2d 330, 332.) Thus, while respondent argues that the Commission’s assessment of penalties which arose from petitioner’s attorney’s delay in resolving the conflict was unjust, the circuit court had no power to review the penalty. Consequently, this court has no opportunity to rule that the circuit court erred in entering judgment on the awards. An appeal from the penalty award was respondent’s remedy.

Respondent also argues that the circuit court erred by failing to grant a satisfaction of judgment pursuant to section 12 — 183 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 183). Respondent cites Klier v. Siegel (1990), 200 Ill. App. 3d 121, where this court determined that a defendant in a general tort case may move for a satisfaction of judgment by showing that payments were made to the plaintiff prior to trial and judgment, even though defendant did not present the payments as a setoff prior to the finality of the judgment. Petitioner cites Franz v. McHenry County College (1991), 222 Ill. App. 3d 1002, where this court held that, in a section 19(g) proceeding, a party may not introduce evidence of other credits which were not introduced before the arbitrator. The parties in Franz did not cite Klier.

The two cases represent two different policies. In Klier, we recognized that, for strategic reasons, a party may not present evidence of setoffs before the jury. (Klier, 200 Ill. App. 3d at 128.) For example, the defendant may decide to conceal evidence that its insurance carrier had made some payments to the plaintiff prior to trial; the existence of insurance, or the inference of an admission of liability, may prejudice the jurors from giving proper consideration to the issue of liability. However, the courts do not want to create disincentives to the worthy aims of obtaining insurance or making interim payments without the delay of trial. Also, the Klier court noted that the purpose of the lawsuit is to provide compensation to the plaintiff, not a windfall and not a punishment of the defendant. (200 Ill. App. 3d at 127.) Illinois has a strong public policy against a plaintiff’s double recovery for the same injury. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 321; Klier, 200 Ill. App. 3d at 127.) The court in Klier found that the plaintiff should not be entitled to obtain a windfall or double recovery stemming from his evasiveness in acknowledging receipt of the advance payments or in his refusal to accept the balance of the sums actually owed to him. The court permitted the judgment to be satisfied based on the proof of the pretrial payments. (200 Ill. App. 3d at 129.) Klier did not involve the Workers’ Compensation Act.

In Franz, the employee attempted to obtain credit for the use of sick days after the arbitrator’s award became final. We determined that the employee was attempting a collateral attack of the award to modify it with matters outside the record. (Franz, 222 Ill. App. 3d at 1006.) The employee should have sought to include the credit in the net award rather than sitting idly by while the award became final; he failed to exhaust his remedies. 222 Ill. App. 3d at 1007.

The policy of the Workers’ Compensation Act is to provide an expeditious, efficient and unified method of compensating workers for their injuries. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 180-81.) Part of the arbitrator’s duties are to calculate the amount of prehearing payments. An employer has no reason to withhold the information from the impartial arbitrator. The arbitrator expects the employer to have made interim payments and is not influenced by the making of the payments or the presence of an insurance carrier, especially where liability is not at issue and only the question of damages is disputed. (See Kelsay, 74 Ill. 2d at 180-81.) Thus, some of the equities present in Klier are not present in a worker’s compensation proceeding. The failure to present a germane setoff detracts from the expeditiousness and efficiency of the system. Thus, we determine that the policy enunciated in Franz overrides the policy in Klier under the facts in this cause, even if petitioner will receive a double recovery. Respondent’s lack of diligence in presenting the correct amount of setoffs created the erroneous award. It was incumbent upon respondent to correct the award, and respondent chose the wrong remedy in resolving the error. By allowing the award to become final, respondent lost its right to contest it. While this court approves of the efficient and inexpensive method of settling disputes outside of a legal proceeding, this court must respect the finality of judgments.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE DIONESOTES, Defendant-Appellant.
    Second District
    No. 2—91—0523
    Opinion filed September 25, 1992.
    Modified on denial of rehearing November 18, 1992.
    Joseph T. Bugos, of Donahue, Sowa & Bugos, of Lisle, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Jerome P. Genova, of Dyer, Indiana (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court;

Defendant, Dale Dionesotes, was charged with driving under the influence of alcohol pursuant to section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95½, par. 11 — 501). His driving privileges were summarily suspended. After a hearing to rescind the suspension of his driving privileges, an order was entered affirming the suspension. Defendant appeals this order. We reverse and remand for further proceedings.

On March 21, 1991, at approximately 2:30 a.m., two officers observed defendant’s vehicle traveling northbound on Villa Avenue in Villa Park at approximately 10 miles per hour. The posted speed limit on this street is 25 miles per hour. The officers were on break outside of a White Hen Pantry, also on Villa Avenue. When defendant’s car reached a point approximately 75 feet from the officers, it stopped for approximately IV2 minutes. Defendant’s car then pulled away northbound at a slow rate of speed. At this point, the officers decided to follow defendant’s vehicle. Defendant’s vehicle proceeded for a block and a half and stopped for a red light. When the light turned green, the officers activated their overhead Mars lights. Defendant’s vehicle traveled through the intersection and continued for another block and a half before it pulled to the right and stopped.

According to the arresting officer’s report, defendant had the strong smell of alcohol on his breath, watery and glassy eyes, and admitted to consuming alcohol. In addition, defendant failed a field sobriety test. The report also mentioned that defendant’s vehicle stopped in the middle of the street for no apparent reason. Based on this report, defendant’s driver’s license and privilege to drive a motor vehicle were suspended pursuant to section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch; 951/2, par. 11 — 501). The confirmation of statutory summary suspension form indicated that the suspension was to last for a three-month period.

On May 2, 1991, a hearing was held on a petition for judicial review of the statutory summary suspension. At the conclusion of this hearing, the court ruled in favor of the State. Defendant subsequently petitioned the court to rescind the statutory summary suspension. This petition was denied as was defendant’s motion to reconsider.

Defendant argues that the trial court’s summary suspension of defendant’s driving privileges was against the manifest weight of the evidence because the initial investigatory stop of defendant was improper.

Ail officer may make a valid investigatory stop of a vehicle absent probable cause to arrest, provided the officer’s decision is based on specific and articulable facts and reasonable inferences therefrom which warrant the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) This rule has been codified in section 107 — 14 of the Code of Criminal Procedure of 1963, which provides:

“A peace officer, after having identified himself as 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 as defined in Section 102 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 107-14.

Thus, an officer may stop a vehicle if he reasonably infers from the circumstances that an occupant has committed, or is about to commit, an offense. (People v. Houlihan (1988), 167 Ill. App. 3d 638, 642.) When an officer’s actions are examined, an objective standard is used to determine whether the facts available to the officer warrant a person of reasonable caution to believe that the action which the officer took was appropriate. A mere suspicion or a hunch on the officer’s part is insufficient to justify a Terry stop. Houlihan, 167 Ill. App. 3d at 642.

The fourth amendment to the United States Constitution is the wellspring which feeds the growth of legal guidelines surrounding Terry stops. Specifically, the amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.” U.S. Const., amend. IV.

As with other categories of police action subject to fourth amendment constraints, the reasonableness of a Terry stop depends upon a balancing of the public’s interest and the individual’s right to personal security and freedom. (People v. Smithers (1980), 83 Ill. 2d 430, 434.) The elements necessary to justify a Terry stop are intended to prevent the police from having absolute discretion to intrude into the lives of the occupants of motor vehicles. People v. James (1976), 44 Ill. App. 3d 300, 303.

Viewing the present case from a perspective provided by the guidelines identified in the authority cited above, we determine that the officers in the present case lacked the specific and articulable facts necessary to make a valid Terry stop under the fourth amendment.

In the present case, defendant drove slowly and stopped his car in the middle of the street for a short period of time. These facts do not support a reasonable inference that defendant is committing, is about to commit, or has committed an offense. The arresting officer himself admitted that he was not necessarily “suspicious” but, instead, found the behavior to be “unusual.” The officer failed to identify the crime or potential crime that prompted him to stop defendant and, in fact, admitted that he did not observe any traffic violations. Moreover, the trial court made no finding regarding what, if any, crime had occurred, was occurring, or was about to occur. The court merely asserted:

“The average person driving a motor vehicle may stop in the middle of the street but isn’t going to stop there for a minute to a minute and a half.
And I think that that is unusual conduct that the police officer if he is doing his job he is going to check it out.”

We determine that unusual behavior alone does not necessarily support a reasonable suspicion that a crime has occurred, is occurring or is about to occur. Without more, a proper basis to make a Terry stop has not been established.

In our view, the fourth amendment protections of personal security and freedom would be severely undermined if the police were permitted to stop those individuals whose behavior was deemed to be of an “unusual” nature rather than a criminal one. We determine that the present stop resulted from a “mere hunch” and, therefore, imper-missibly infringed upon defendant’s fourth amendment right to be secure in his person against unreasonable searches and seizures.

In People v. Deppert (1980), 83 Ill. App. 3d 375, the defendant, at 4:45 a.m., drove his car at a speed of 10 to 15 miles per hour in a 35-mile-per-hour zone, pulled into a railroad yard, turned his car around, and proceeded slowly in the opposite direction. A police officer made a Terry stop of the defendant and discovered firearms in the defendant’s possession. The appellate court determined that the officer had no authority to stop the defendant because there were no articulable facts sufficient to indicate that the defendant was committing, was about to commit, or had committed a crime. The officer in Deppert explained that he stopped the defendant to see if he was having trouble with his car or was lost or looking for someone. The court found these reasons insufficient to justify a Terry stop. In the present case, the arresting officer explained that his concerns about defendant’s behavior were that defendant was either having some problem or was lost. As in Deppert, we determine that this explanation does not justify a Terry stop.

A similar set of facts is presented in People v. Reusch (1991), 209 Ill. App. 3d 991, where an officer pulled the defendant over because the officer believed the defendant was having car trouble. The appellate court found this explanation insufficient cause to justify a Terry stop and granted the defendant’s petition to rescind the statutory summary suspension of his driver’s license which was levied against the defendant for driving under the influence of alcohol. In reversing, the appellate court held that the trial court’s decision was against the manifest weight of the evidence. (Reusch, 209 Ill. App. 3d at 993.) Applying this standard to the present case, we hold that the trial court’s decision was against the manifest weight of the evidence, and we vacate the court’s order confirming the summary suspension of his driving privileges.

The judgment of the circuit court of Du Page County is reversed in part, vacated in part, and the cause is remanded for further proceedings consistent with this opinion.

Reversed in part; vacated in part and remanded.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE DOYLE

text:
    HOME INDEMNITY COMPANY, Plaintiff and Counterdefendant-Ap-pellee, v. WIL-FREDS, INC., Defendant and Counterplaintiff-Appellant (Skidmore, Owings and Merrill et al., Defendants).
    Second District
    No. 2—91—1389
    Opinion filed September 25, 1992.
    Rehearing denied November 13, 1992.

      ' Michael Resis, Ellen L. Karecki, and Paul T. Lively, all of Querrey & Harrow, Ltd., of Chicago (Victor J. Piekarski, of counsel), for appellant.
    Lloyd E. Williams, Jr., Barry L. Kroll, and J. Ellen Hicks, all of Williams & Montgomery, Ltd., of Chicago (James K. Horstman, of counsel), and Roger K. O’Reilly and Thomas J. Long, both of O’Reilly, Cunningham, Norton & Mancini, and Dale W. Bruckner, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., both of Wheaton, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Home Indemnity Company (Home), brought an action for declaratory judgment in the circuit court of Du Page County seeking a determination as to whether it was obligated to defend or indemnify defendant, Wil-Freds, Inc. (Wil-Freds), under the terms of a comprehensive general liability policy (CGL) issued by Home to Wil-Freds. Home subsequently filed a motion for summary judgment alleging that several exclusionary clauses contained within the policy precluded coverage. Wil-Freds filed a cross-motion for summary judgment arguing to the contrary. The circuit court granted Home’s motion for summary judgment and denied Wil-Freds’ cross-motion, concluding that Home had no duty to defend or indemnify. Wil-Freds then filed this timely appeal.

The sole issue on appeal is whether the trial court erred in concluding that several exclusionary clauses contained within the CGL policy and broad form property damage endorsement issued by Home precluded coverage thus relieving Home of its duties to defend and indemnify.

Prior to the institution of the litigation underlying this action, Home, from August 1976 to August 1978, entered into at least three contracts of insurance with Wil-Freds. The policies were typical comprehensive general liability policies and contained the following insuring language:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury or
B. property damage.”

The insuring language was subject to 17 exclusions, and the policies were amended by a broad form property damage endorsement. The exclusionary clauses particularly relevant to our discussion provided that the insurance did not apply:

“(n) to property damage to the named insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

On July 12, 1977, the Board of Library Directors of the Village of Lombard (Library Board) entered into a contract with Wil-Freds for the construction of a new addition and renovation of existing facilities for the Helen H. Plum Library located in Lombard, Illinois. The contract provided, in part, that Wil-Freds would furnish all labor, materials and equipment necessary to complete the project in accordance with the contract documents provided by the architect, Skidmore, Owings & Merrill (Skidmore).

Sometime after the completion of the project, the Library Board filed a four-count amended complaint against Skidmore and Wil-Freds alleging negligence and breach of contract. Counts III and IV (hereinafter referred to collectively as the underlying complaint) were directed at Wil-Freds and are the focus of this appeal. Count III alleged that as a direct and proximate result of Wil-Freds’ “negligent breach of its duty of care” the Library Board was damaged and continued to sustain damage in the following respects: the addition was defectively constructed; the board will suffer and has suffered loss of use of areas of the addition and the real estate upon which it is located; that the board has incurred costs and expenses and will incur further costs in correcting defects in the addition; cracking and continued deterioration of exterior brickwork; water damage and deterioration in the interior ceilings and walls; cracking and continued deterioration of horizontal mortar joints; continuing damages arising from inadequate slope of a ramp at the southwest entrance; moisture damage due to faulty installation of waterproofing membrane; rusting steel lintel that is contributing to the lack of stability of an exterior wall; cracks at corners and offsets in exterior brickwork; defective coping on exterior wall; defects in cap masonry joints and wall flashing; and moisture damage caused by defective plaza roof cap masonry joints and exterior flashing. Count IV alleged breach of contract against Wil-Freds and incorporated the allegations of count III.

On May 31, 1990, subsequent to the institution of the underlying litigation, Home filed a complaint for declaratory judgment against Wil-Freds, Skidmore and the Library Board seeking a determination of its obligation to provide a defense or indemnification to Wil-Freds or any other party for the incident alleged in the Library Board’s underlying complaint. Home later filed a motion for summary judgment, and Wil-Freds filed its response and cross-motion for partial summary judgment. In its motion, Home argued that the injuries alleged in the underlying complaint were unequivocally excluded from coverage by the several exclusionary clauses. In its cross-motion, Wil-Freds argued that the exclusions did not apply.

After the hearing on the motions, the trial court entered its order granting summary judgment in favor of Home and denying Wil-Freds’ cross-motion. Specifically, the trial court determined that exclusion (n) and certain other exclusions were applicable and sufficient to establish that there was no duty to defend or indemnify. Wil-Freds then filed this timely appeal.

At the outset we note that, although the trial court concluded that coverage was precluded by several exclusions, it is necessary only for this court to determine whether coverage was properly excluded by any single clause, or combination of clauses. After careful consideration of the relevant case law and the arguments presented by the parties with respect to each exclusion cited, we conclude, without passing judgment as to the other exclusions, that exclusion (n), standing alone, sufficiently precludes coverage for the claims alleged within the underlying complaint.

When determining an insurer’s duty to defend its insured, the court must look to the allegations of the underlying complaints. If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obligated to defend its insured even if the allegations are groundless, false or fraudulent. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 73.) An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage. (Wilkin, 144 Ill. 2d at 73.) Where the complaint alleges several theories of recovery against an insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. Wilkin, 144 Ill. 2d at 73.

The underlying complaints and insurance policies must be liberally construed in favor of the insured, and, where a policy provision is clear and unambiguous, its language must be taken in its plain, ordinary and popular sense. (Wilkin, 144 Ill. 2d at 74.) A determination concerning the applicability of an exclusionary clause is governed by the same liberal duty to defend standard. Wilkin, 144 Ill. 2d at 78.

The CGL policy between Home and Wil-Freds contained the following exclusions:

“(n) to property damage to the named insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

Although exclusion (o) was replaced by clause (z), which appeared in the broad form property damage endorsement, we include it here as an aid to understanding.

Home contends that exclusion (n), by itself, precludes coverage for property damage (as defined within the policy) to the addition. Home’s argument is premised on the assertion that a completed building, for the purposes of exclusion (n), is considered a product. Therefore, because the underlying complaint alleged only damage to the addition (i.e., product) itself, coverage was properly excluded. Wil-Freds responds that “work” or “services” are not contained within the policy definition of “named insured’s products” and that the reference to “products” in exclusion (n) and the subsequent reference to “work performed” in exclusion (o) (prior to being replaced by (z)) evidenced the parties’ intent to preclude coverage for different types of risks. Wil-Freds further argues that if the term “products” was meant to encompass “work performed,” exclusion (o), prior to its replacement by (z), would have been rendered ineffectual.

CGL policies typically contain what are commonly referred to as business risks exclusions. Exclusion (n) is one such exclusion. These exclusions are premised on the theory that liability policies are not intended to provide protection against the insured’s own faulty workmanship or product, which are normal risks associated with the conduct of the insured’s business. (See Wilkin, 144 Ill. 2d at 81-82.) The rationale frequently articulated is that liability insurance should not become a warranty or be converted into a performance bond. See, e.g., Qualls v. Country Mutual Insurance Co. (1984), 123 Ill. App. 3d 831, 834; Indiana Insurance Co. v. DeZutti (Ind. 1980), 408 N.E.2d 1275, 1279.

In Western Casualty & Surety Co. v. Brochu (1984), 122 Ill. App. 3d 125, aff’d (1985), 105 Ill. 2d 486, this court interpreted exclusionary clauses identical in substance to those in the present case. In Brochu, homeowners filed a complaint against a general contractor alleging physical damage and diminution in value as a result of its failure to construct their home in “a workmanlike manner.” The general contractor’s insurance company subsequently brought a declaratory judgment action to determine its obligation to defend. The court held that the alleged property damage to the house which resulted from soil subsidence was excluded under both exclusions (n) and (o). (Brochu, 122 Ill. App. 3d at 129.) In reaching its conclusion with respect to exclusion (n), the court determined that a completed house met the policy definition of product. Product was defined, as it is in the present case, as “goods or products manufactured, sold, handled or distributed by the named insured.” (Brochu, 122 Ill. App. 3d at 129.) The court then concluded that exclusion (n) applied to preclude coverage for repairs or replacements arising from the failure of an insured’s own work or product. (Brochu, 122 Ill. App. 3d at 131; see also Faulkner v. United States Fidelity & Guaranty Co. (1987), 157 Ill. App. 3d 590, 597 (no duty to defend under identical exclusions where underlying complaint sought damages solely for property damage to building, “i.e., damages for economic losses resulting from [contractor’s] poor workmanship”); Great Southwest Fire Insurance Co. v. Greenlee (1985), 134 Ill. App. 3d 816. But see Trovillion v. United States Fidelity & Guaranty Co. (1985), 130 Ill. App. 3d 694 (duty to defend arose but only because insurer failed to seek declaratory judgment or defend under reservation of rights).) The court was careful to note, however, that damage to other property or personal injury resulting from the failure of the product would not be excluded from coverage. (Brochu, 122 Ill. App. 3d at 131.) In its affirmance of Brochu, the supreme court emphasized this fundamental distinction in commenting, “ ‘the policy in question does not cover an accident of faulty workmanship but rather faulty workmanship which causes an accident.’ ” Brochu, 105 Ill. 2d at 498, quoting Weedo v. Stone-E-Brick (1979), 81 N.J. 233, 249, 405 A.2d 788, 796.

As one frequently cited commentator has noted concerning CGL policies:

“ ‘The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. ... The coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.’ ” DeZutti, 408 N.E.2d at 1279, quoting Henderson, Insurance Protection for Products Liability & Completed Operations — What Every Lawyer Should Know, 50 Neb. L. Rev. 415, 441 (1971).

Although we recognize that other jurisdictions have not uniformly adhered to our State’s interpretation of exclusion (n) (see, e.g., Maryland Casualty Co. v. Reeder (1990), 221 Cal. App. 3d 961, 974, 270 Cal. Rptr. 719, 727 (rejecting interpretation that completed building is a product)), we conclude, in light of our holding in Brochu and its subsequent affirmation by our supreme court, that Home owed Wil-Freds no duty to defend against the underlying action because the allegations of the underlying complaint sought damages for repair and replacement arising out of physical injury to only the addition itself. The underlying complaint alleged that Wil-Freds failed to construct and perform in accordance with design specifications, good workmanship and reasonable construction standards. Specifically, it alleged that the board will suffer “economic harm by virtue of the building’s shorter life” and need for earlier replacement. (Emphasis added.) It is also noted that there are no allegations of harm to other property or persons, only allegations arising from harm to the addition itself. Finally, we note that our interpretation is consistent with the underlying rationale that CGL policies, absent some specific provision insuring against such a risk, are not intended to provide protection against an insured’s own faulty workmanship or product. Therefore, the trial court did not err in concluding that exclusion (n) precluded coverage for the claims alleged in the Library Board’s complaint against Wil-Freds.

For the foregoing reasons, the order of the circuit court of Du Page County granting plaintiff’s motion for summary judgment and denying defendant’s cross motion is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.