author: JUSTICE WOODWARD JUSTICE McLAREN,

text:
    JAMES S. SMITH et al., Plaintiffs-Appellants and Counterdefendants, v. JACK NICKLAUS DEVELOPMENT CORPORATION OF ILLINOIS, Defendant (Harvey M. Silets et al., Defendants-Appellees and Counterplaintiffs; Wynstone Property Owners, Inc., Counterdefendants).
    Second District
    No. 2 — 91—0404
    Opinion filed February 20, 1992.

      McLAREN, J., specially concurring.
    Stephen T. Saporta, of Katz, Randall & Weinberg, of Chicago (Jeffrey H. Bunn, of counsel), for appellants.
    Silets & Martin, Ltd., and Sachnoff & Weaver, Ltd., both of Chicago (Locke E. Bowman and Arnold Pagniucci, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

The trial court dismissed the amended verified complaint of plaintiffs, James and Cynthia Smith. On appeal, plaintiffs argue that the court below erred in doing so. No issues are raised regarding the injunction entered pursuant to a third-party complaint filed by Harvey and Elaine Silets (the Silets) against plaintiffs and Wynstone Property Owners Association (WPOA).

This case arises out of the development of Wynstone, a 750-acre residential community built around a Jack Nicklaus signature golf course. In developing that community, Jack Nicklaus Development Corporation (JNDC) had to deal with environmental issues and the concerns of adjacent property owners, including defendants, the Si-lets. The Silets owned property which is located off Arrowhead Lane in North Barrington, Illinois, and which is situated immediately to the west of the Wynstone development. Since the 1970’s, the Silets have owned their property which, prior to the Wynstone development, was secluded and rural in character. A prominent feature of the Silets’ property is a pond which is adjacent to their residence and also borders upon the Wynstone development. Before Wynstone’s development, the Silets viewed a forested, natural setting from their house across their pond.

The Silets first learned in 1986 of JNDC’s intention to develop a residential and golfing community in the area next to their property. The Silets were concerned as to the impact said development of the adjacent property might have upon the water level and water quality of their pond and upon their view across the pond.

These concerns, and others, were dealt with during a process of negotiations between the Silets and JNDC which culminated in the execution of the unrecorded December 1987 agreement and the creation of a conservation easement and a drainage easement, both of which were recorded. The conservation easement burdens the three lots in the Wynstone development which are situated side by side at the west border of the development, adjacent to the Silets’ property and across the pond from the Silets’ house. Lot G-11 (G-11), which plaintiffs purchased on August 10, 1988, is the southernmost of the three. The conservation easement applies to a rectangular area, roughly along the pond’s edge, which runs north to south across the entire width of the three affected Wynstone lots and extends from the west border of the development (the property line shared with the Silets) to a distance 75 feet to the east of that property line.

The drainage easement burdens the same three lots. On G-11, the physical boundaries of the drainage easement are a triangular area in the northwest corner of the lot formed by the west and north property lines and a diagonal line bisecting those two property lines at a distance (on both property lines) of more than 100 feet from their intersection. Thus, the northwest corner of the plaintiffs’ property is subject both to the conservation easement and to the drainage easement.

Under the unrecorded December 1987 agreement, among other concessions, JNDC promised to construct a retention basin on G-11, G-12 and G-16 and to construct a berm on G-11 and G-12 at the shoreline between the retention basin and the Silets’ pond. The purpose for the retention basin and the berm was to prevent erosion, runoff or other damage to the Silets’ pond during and after the construction of the Wynstone development. In the agreement, JNDC also agreed to establish the conservation easement, consisting of the westernmost 75 feet of the same three lots. Finally, JNDC promised that, after the berm was constructed, it would landscape across the berm for the purpose of screening the Silets’ property from the development. The Silets were given a right of reasonable approval over the landscaping.

The plaintiffs first viewed G-11 in August 1987 at a time when they were considering building a house in the Wynstone development. Prior to viewing G-11, the Smiths had been provided with a plat of survey which showed a triangular area in the northwest corner of G-11, indicating a retention and drainage area that would run across that particular portion of the property. The area in question was planned for the collection of surface water runoff from other areas of Wynstone, before it drained into the above-mentioned pond.

During their initial viewing of the G-11 property, plaintiffs inquired of the JNDC representative what was planned for the drainage area but received no definite answer. In September 1987, plaintiffs decided to buy G-11 and retain an architect, general contractor and landscape architect. The resulting house plan sought to maximize the views of the pond.

Late in 1987 or 1988, JNDC began working on the retention and drainage areas. By August 10, 1988, when plaintiffs formally closed on the purchase of G-11, the work on said area had progressed substantially. At some point, seven Austrian pines were planted in the berm. Plaintiffs testified that the pines were not planted until after the August 1988 closing. Defendants presented evidence that the pines were planted in July 1988.

There was a conflict in the evidence as to whether Mrs. Smith, during a July 1988 conversation with Mrs. Silets, had been specifically advised that the Silets had the right of approval over the landscaping to be installed on the berm. Mrs. Silets testified to so advising Mrs. Smith, who denied the conversation took place.

On the day before their closing, plaintiffs met with a JNDC representative, who told them that JNDC was responsible for landscaping in the retention basin and on the berm. This representative assured plaintiffs that the landscaping would be of high quality consistent with other common areas in the development. Plaintiffs did not pursue this matter further.

After the closing, the parties met on a number of occasions to iron out their differences as to the landscaping of the subject area. No satisfactory resolution was achieved. In November 1989, a crew of the JNDC landscape workers appeared on G-11 and installed a screen of evergreen trees on the berm between the pond and the drainage and retention basin. According to plaintiffs’ landscape architect, said evergreens will grow to a height of approximately 45 feet at maturity, and these trees will quickly grow together to create a solid screen between G-11 and the pond. Moreover, at an unspecified time, a fence which followed the general perimeter line of the Wynstone development was installed along the berm’s crest. As stated above, plaintiffs filed their complaint on November 15, 1989.

On November 15, 1989, plaintiffs filed a verified complaint which primarily sought injunctive relief. The only named defendant was JNDC. Plaintiffs claimed that the installation of the contested landscaping and disputed placement of the perimeter fence would constitute an unlawful trespass, resulting in irreparable damage to their property. Based upon the alleged injury, plaintiffs sought injunctive relief enjoining JNDC from undertaking the disputed landscaping. The trial court denied plaintiffs’ motion for a temporary restraining order, finding that the temporary relief being sought was also the ultimate relief requested in plaintiffs’ complaint.

On March 12, 1990, the trial court granted JNDC’s motion to add the Silets as necessary defendants. On March 26, 1990, plaintiffs filed an amended verified complaint against defendants, which additionally alleged that defendants’ undertakings with respect to landscaping and fence placement had wrongfully denied plaintiffs their view of the subject pond and their right to the use and enjoyment of their property.

On May 31, 1990, the Silets filed, inter alia, a counterclaim naming plaintiffs and WPOA as counterdefendants. The counterclaim sought to enjoin counterdefendants from violating the restrictions imposed by the recorded drainage easement and conservation easement, which will be discussed below. The Silets also sought reasonable access to the area subject to said easements for purposes of monitoring counterdefendants’ compliance with the restrictions.

Finally, on September 24, 1990, plaintiffs filed a second count to their amended verified complaint, alleging that any landscaping installed in or around the subject drainage and retention was required to conform with the guidelines set out in the manual entitled “Procedures and Standards for Urban Soil Environment and Sedimentation Control in Illinois” (Procedures and Standards), and, further, alleging that the landscaping installed by JNDC neither conformed with nor was intended to conform with said guidelines.

After a trial held intermittently over three months, the trial court found for the defendants and dismissed both counts of the Smiths’ complaint. As to the Silets’ counterclaim, the court found that plaintiffs had removed vegetation from the conservation area in violation of the conservation easement. The trial court therefore entered an injunction prohibiting plaintiffs from removing any existing trees or plants from said area. Plaintiffs then appealed the dismissal of their complaint. They do not appeal the trial court’s granting the injunctive relief sought in the Silets’ counterclaim.

We first address the motion of the Silets, JNDC and WPOA to strike portions of the plaintiffs’ reply brief. Said motion was ordered to be taken with the case. Specifically, the motion maintains that the reply brief includes an argument which was not made before the trial court and was not made in the Smiths’ opening brief. Plaintiffs’ disputed argument asserts that the recorded easements are sufficiently clear and unambiguous so as to obviate the consideration of parol evidence in ascertaining the signatories’ intentions. We do not find the motion to strike well taken as there are portions of both the trial record and the plaintiffs’ opening brief which relate to this argument. Accordingly, we deny defendants’ motion to strike this argument portion of the reply brief.

Next, we address plaintiffs’ argument that the trial court erred in dismissing count I of their complaint. Plaintiffs contend that the trial court made four errors in dismissing count I of the complaint, namely: (1) it erred in finding that the main purpose of the conservation easement was to screen the Silets’ view of the Smiths’ home; (2) it erred in finding that the drainage and retention easement specifically authorized the planting of trees in and around the drainage and retention basin; (3) it erred in finding that the drainage and retention area is a common area of the Wynstone residential development; and (4) it erred in finding that there is insufficient evidence in the record to order the relocation of the perimeter fence.

Initially, we note that the judgment of the trial court should not be disturbed unless it is contrary to the manifest weight of the evidence. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 642.) Moreover, this court may not substitute its opinion for that of the trial court, especially where the trial court had the opportunity to observe the witnesses and determine their credibility. Village of Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35.

In making its ruling on count I of the complaint, the trial court initially found that plaintiffs were not charged with knowledge of the unrecorded agreement between JNDC and the Silets. Subsequently, the trial court made the following summary of its findings as to count I:

“So based upon the provisions of the [retention easement wherein Jack Nicklaus has the right to make plantings, specifically including trees on the berms, and in light of the Conservation Easement that precludes the removal of any plant from the [retention area, and based on the fact that the Smiths were aware that the [retention easement was a common area, and based on the fact that Wynstone had the right to maintain common areas, the Court finds that Jack Nicklaus and Wynstone had the right to plant and maintain the berm and the [retention area, and therefore, no trespass was committed. As a result, plaintiffs’ request in Count I that all objected to landscaping be removed by defendants is denied.”

We first look at the issue of whether the trial court erred in finding that the recorded easements authorized the planting of trees in and around the drainage and retention basin. As neither defendant takes issue with the trial court’s finding that plaintiffs were not charged with knowledge of the unrecorded agreement, we will not refer to said agreement in our consideration of this issue. An instrument creating an easement is construed in accordance with the intentions of the parties. (Briarcliff Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244.) In determining the parties’ intentions, the court should look at the words of the instrument and the circumstances contemporaneous to the transaction. (Briarcliff Lakeside Townhouse Owners, 170 Ill. App. 3d at 249.) The circumstances may include the state of the thing conveyed, the object to be obtained and the practical construction given by the parties through their conduct. Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17.

Plaintiffs initially maintain that the trial court in construing the easements should have referred only to those circumstances that were disclosed to plaintiffs prior to their purchase of G-ll. We do not agree. Defendants are correct in arguing such contention conflicts with the basic rule that an easement, once created and recorded, runs with the land and is a burden or benefit for all successors in the chain of title. See, e.g., Flower v. Valentine (1985), 135 Ill. App. 3d 1034.

Plaintiffs further argue that there is nothing expressed in the easements which could reasonably be construed as notice to a disinterested third party that JNDC would be installing a row of evergreens that would deprive the purchaser of G-11 a pond view. Plaintiffs also point to the testimony of Harvey Silets wherein he conceded that two recorded easements and the unrecorded agreement were intended to be read in conjunction to understand fully the scope of each party’s rights and responsibilities.

Further, plaintiffs contend that the trial court should not have relied on a document described as sheet No. 7. However, the drainage and retention easement specifically states:

“2. Grantor [JNDC] shall install those improvements on the Easement Premises as set forth in the Subdivision Development Plans, sheet #7 revised December 17, 1987, prepared by Spaceco pursuant to the Gewalt-Hamilton report dated December 15,1987 ***.”

Plaintiffs maintain that sheet No. 7 does not represent what type of vegetation was to be planted in the subject area. They contend that section A-A of sheet No. 7 in which pine trees are depicted on both sides of the berm is merely an artist’s embellishment and not intended to represent the intended landscaping of the berm.

Defendants argue that the recorded easements provide ample support for the trial court’s decision. They note that paragraph 2 of the drainage easement provides that JNDC shall install “improvements” as set forth in sheet No. 7. There is no limitation upon what is included in the term improvements, except that those improvements be set forth in sheet No. 7. Defendants further assert that section A-A of sheet No. 7 graphically demonstrates that the planting of pine trees on the berm was contemplated by the parties concerned.

Defendants also point to paragraph 3 of the drainage easement, which provides that the WPOA agreed to maintain “all plantings installed by Grantor [JNDC].” This paragraph does not limit what plantings are permitted on the berm. Defendants further contend that there is no question that the term “improvements” used in paragraph 2 of the drainage easement relates to the term “plantings” found in paragraph 3 of said documents. They conclude that since the improvements on sheet No. 7 specifically include trees on the berm, JNDC had the right to plant trees there under the drainage easement’s terms.

As to the inconsistencies in Harvey Silets’ testimony, defendant essentially argues that these statements are taken out of context and that the relevant portions of his testimony regarding the recorded easements support the trial court’s finding. Mr. Silets, who signed the conservation easement and negotiated the drainage easement, testified that the purpose of installing trees on the berm was to reestablish the natural buffer in the drainage easement portion of the conservancy area, which had to be disturbed in order to install mechanical soil erosion controls. Mr. Silets specifically understood that the conservation easement, because it prohibited the removal of any vegetation, implicitly authorized and required JNDC to reestablish vegetation on the berm in order to screen the Wynstone development from the Silets after the mechanical erosion controls had been installed. Mr. Silets also understood that sheet No. 7 would be prepared in such a way as to reflect pine trees being installed on the berm and, thus, to authorize the installation of vegetation.

Furthermore, Mr. Charles Reeves, executive vice-president of JNDC, testified that the two recorded easements when read together adequately covered the matters set forth in the unrecorded agreement so that it was not necessary to record said agreement.

We agree with defendants’ argument. The trial court’s decision that the pine trees planted in the berm were not a trespass on plaintiffs’ property was supported by the recorded easements. The drainage easement’s language leaves little doubt that plantings were intended for the berm, and it did not limit the type of vegetation planted thereon. Of critical importance is the depiction of the proposed planting on the berm found in section A-A of sheet No. 7, which was available to plaintiffs prior to the August 1988 closing. Even a cursory perusal of sheet No. 7 would have put them on notice of defendant JNDC’s intention to plant pine trees on the berm. The illustration is clear and straightforward, and it supports the trial court’s determination of this issue. Plaintiffs’ failure to ascertain the type of plantings intended by the recorded easements is one of their own making.

Moreover, the inconsistencies in Harvey Silets’ testimony are not of such significance as to undermine the trial court’s decision. Accordingly, we hold that the court below did not err in finding that under the terms of the easement defendant, JNDC, had the right to plant pine trees on the berm.

Next, plaintiffs argue that the trial court erred in finding that the drainage and retention area on G-11 is a common area of the Wynstone development. In its summary of findings as to count I, the court below found all the parties viewed the drainage and retention area as a common area not under plaintiffs’ control.

We find plaintiffs’ argument unpersuasive, particularly in light of their testimony at trial. Both acknowledged that prior to purchasing G-11 they were told that the landscaping of the drainage easement would be done similarly to other common areas in the development. Also, it is evident that plaintiffs considered the landscaping of the subject area to be the WPOA’s responsibility. Furthermore, Mr. Smith admitted that he did not present a plan for landscaping the subject area because he did not want to assume responsibility for paying for the landscaping. Given plaintiffs’ action and testimony, we find the trial court’s decision as to this issue was not against the manifest weight of the evidence.

As part of their argument, plaintiffs contend that the trial court erred in sustaining objections to testimony concerning the landscaping of certain Wynstone common areas. As defendants argue, this testimony was irrelevant to the issue of who controlled landscaping of the subject area, and, accordingly, the trial court properly sustained the objection to such testimony.

Plaintiffs’ final argument pertaining to count I is that the trial court erred in finding insufficient evidence to relocate the perimeter fence. The trial court found that there was insufficient evidence to make a finding as to the distance of the fence from the lot line. Specifically, it found that none of the documents admitted into evidence conclusively show the actual distance between the lot line and the fence’s location. The trial court also determined that the conservation easement did not specify the placement of the fence. Plaintiffs argue that there was sufficient evidence to support affirmative relief on their behalf. We do not agree.

Plaintiffs admit that the documentary evidence was vague as to where the fence was actually situated. Moreover, plaintiffs do not adequately address the fact that paragraph 3 of the conservation easement provides that the perimeter fence must be installed within the conservancy area and places no restriction as to where, within said area, the fence is to be installed. Given these inadequacies in plaintiffs’ argument as to this issue, we find that the trial court’s decision was not against the manifest weight of the evidence.

Next, plaintiffs argue that the trial court erred in dismissing count II of their complaint. In summarizing its findings as to count II, the court below stated in pertinent part:

“Mr. Barnes [the Smiths’ landscape architect] was the only witness to testify that the existing plantings did not comply with the requirements of plaintiffs’ Exhibit 22 [The Illinois Standards and Procedures for Urban Erosion and Sedimentation Control]. I find Mr. Barnes’s testimony not very persuasive, since when asked the basis for his opinion at Page 716 and 717 of the December 3, 1990 transcript, the only reason he gave was that the retention area was not seeded very promptly. That has little to do with the present state of erosion controls.
* * *
While Mr. Barnes’s plan may or may not be superior to the plants and mulch used, I cannot find, based on the specific provisions of plaintiffs’ Exhibit 22, that the present plantings and mulchings of the berm are inconsistent with plaintiffs’ Exhibit 22.”

Specifically, plaintiffs argue that the trial court misconstrued the opinion testimony of two expert landscape architects with respect to the landscaping of the drainage and retention area. They point to the testimony of Brian Barnes (plaintiffs’ landscape architect) and Michael Schoppe (defendants’ landscaping architect). Both Barnes and Schoppe prescribed a landscaping scheme which employed grasses and perennial ground cover to deal with erosion and sedimentation problems. Further, Barnes opined that the landscaping done by JNDC does not satisfy the Procedures and Standards guidelines. Plaintiffs contend that the trial court did not give Barnes’ testimony the weight it was due.

Plaintiffs also argue that the trial court ignored material evidence which demonstrated that the current landscaping scheme had not successfully prevented erosion and sedimentation. Entered into evidence were photographs taken by Mr. Smith following a substantial rainstorm. These photographs indicate runoffs of mulch and soil from the berm into the retention basin and into the drain pipe which runs under the berm from the basin to the pond. Plaintiffs conclude by asserting that this evidence demonstrates that the existing landscaping plan was never intended to address sedimentation and erosion problems but simply to screen the Silets’ view of plaintiffs’ house.

In response, defendants point to concessions made by Brian Barnes during his testimony. In the Procedures and Standards manual, trees are included in the definition of landscaping. Barnes conceded that trees are part of the vegetation contemplated by said manual. Moreover, Barnes admitted that trees are particularly appropriate where the ground is sloped. Barnes also conceded that the day lilies planted in the berm were an acceptable way to stabilize the area according to the Procedures and Standards manual.

Defendants further argue that plaintiffs’ photographs do not prove that erosion control is not functioning properly. Defendants point out that the photographs were taken after one of this area’s frequent “100-year event” rainfalls and that as a result mulch runoff is a predictable result, as well as standing water in the retention basin.

We agree with plaintiffs that a better plan for erosion control could have been implemented on the berm. Yet, we do not find the existing plantings plus the mulch to stray far enough from the recommendations of the Procedures and Standards manual to serve as a basis for reversing the trial court’s dismissal of count II.

Affirmed.

INGLIS, P.J., concurs.

JUSTICE McLAREN,

specially concurring:

I specially concur in this opinion because I wish to emphasize a matter contained in the opinion. The majority states “[a]n instrument creating an easement is construed in accordance with the intention of the parties. [Citation.] In determining the parties’ intentions, the court should look at the words of the instrument and the circumstances contemporaneous to the transaction.” 225 Ill. App. 3d at 391; Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 249.

I wish to emphasize the “intent of the parties” means the grantor and the grantee, not the Silets or any other third party who might be the beneficiary of an unrecorded easement or document claiming some right or interest in the property in question. The grantor, Jack Nicklaus Development Corporation, submitted several landscaping proposals to the Silets. Although the sundry submissions suggest that the final plan was evidence of the Silets’ desires, rather than the grantor’s intent as to what was to be implemented, I agree with the majority that the court’s findings are not against the manifest weight of the evidence.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    SAFECO INSURANCE COMPANY, Plaintiff-Appellant, v. FRANCIS SECK et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0449
    Opinion filed February 20, 1992.

      James F. Best and Kurt G. Beranek, both of Fraterrigo, Best & Beranek, of Chicago (William J. Floriano, of counsel), for appellant.
    May & Buege, Ltd., and Querrey & Harrow, Ltd., both of Waukegan, and Brandt & Cox, P.C., of Lake Villa (Robert M. Buege and Ronald E. Brandt, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

This appeal arises out of a declaratory judgment action brought by plaintiff, Safeco Insurance Company, in order to determine its rights and obligations in a personal injury lawsuit filed by Marie Seek against her husband, Francis Seek. Plaintiff disputes the order of the circuit court of Lake County granting defendants’ motions for summary judgment declaring that Safeco Insurance Company owed Francis Seek duties of defense and indemnification up to the policy liability limit of $300,000. Plaintiff’s motion for summary judgment was denied. Plaintiff denies that these duties are owed to defendant because the insurance policy contained a family exclusion clause. We reverse.

On August 19, 1988, Francis Seek and his wife, Marie Seek, were involved in an automobile accident. Marie subsequently filed a personal injury action against Francis. Plaintiff filed a declaratory judgment action seeking a finding that a family exclusion clause in Francis’ insurance policy excluded coverage for damages sought by Marie. The trial court rejected plaintiff’s argument and found that the family exclusion in plaintiff’s insurance contract was void because it was contrary to Illinois public policy as expressed by the legislative abrogation of interspousal immunity in the Illinois Rights of Married Women Act (the Married Women Act) (Ill. Rev. Stat. 1987, ch. 40, par. 1001). Thus, the court held that plaintiff owed Francis duties of defense and indemnification up to the $300,000 liability limit of the insurance policy.

The central issue presented for review is whether the abrogation of interspousal tort immunity invalidates the family exclusion clause in plaintiff's automobile insurance policy. The facts of this case are not in dispute. We are asked to address a legal question involving the construction of a provision of an insurance contract in relation to State law. Therefore, our determination may be made on review independent of the trial court’s judgment. Dairyland Insurance Co. v. Linak (1991), 208 Ill. App. 3d 892, 895.

Plaintiff issued an automobile liability insurance policy to Francis Seek in November 1977. This policy was renewed in May 1988. It contained a single limit liability coverage of $300,000 per accident. The policy issued to defendant contained the following coverage exclusion:

“EXCLUSIONS: This policy does not apply under the Liability Section:
* * *
(d) to any person for bodily injury to anyone related to that person by blood, marriage or adoption who is a resident of the same household. This includes a ward or foster child.”

The trial court reasoned that this exclusion was void as against public policy in light of the Married Women Act, which explicitly abrogated interspousal tort immunity effective January 1, 1988 (Ill. Rev. Stat. 1987, ch. 40, par. 1001). The court further found that the trend of the law has been to find family exclusions in liability policies to be void as against various other public policies.

Plaintiff argues that the trial court should not have invalidated the family exclusion clause in Francis Seek’s insurance policy because: (1) family exclusion clauses have been upheld in Illinois and other jurisdictions; (2) principles of statutory construction and interpretation dictate that the exclusion clause is not affected by the Married Women Act; (3) the family exclusion clause does not violate the public policies inherent in the Illinois financial responsibility act (see Ill. Rev. Stat. 1987, ch. 95½, par. 7 — 100 et seq.); (4) the family exclusion clause does not violate public policies inherent in the Illinois mandatory insurance statute; and (5) invalidation of the family exclusion clause impairs vested contractual rights. Defendants address these same issues in support of their position that the court below did not err. We will also address these issues with the exception that we do not find it necessary to examine the laws of jurisdictions outside of Illinois in order to resolve this dispute, nor do we find it necessary to discuss matters of vested contractual rights in light of our holding on the remaining dispositive issues.

Illinois’ courts have traditionally upheld the validity of automobile insurance provisions containing a family exclusion clause. (Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515; Allen v. State Farm Mutual Automobile Insurance Co. (1991), 214 Ill. App. 3d 729; Economy Fire & Casualty Co. v. Green (1985), 139 Ill. App. 3d 147; State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674; Banner Insurance Co. v. Avella (1970), 128 Ill. App. 2d 471.) The purpose of an exclusionary clause is to avoid the possibility of collusive claims in a close, overly friendly and intimate relationship between family members. (Banner, 128 Ill. App. 2d at 475.) A clear and unambiguous family exclusion clause will be applied as written unless it contravenes public policy. (Severs, 89 Ill. 2d at 521.) It is generally held that, “in the absence of a statutory provision to the contrary, automobile liability policy provisions excluding household and family members from coverage are valid and effective.” Severs, 89 Ill. 2d at 521.

The only explicit statutory limitation of family exclusion clauses is section 143.01 of the Illinois Insurance Code, which provides that a family exclusion clause is inapplicable when a third party acquires a right of contribution against a family member of the injured person or when the insured’s vehicle was driven by a person who was not in the insured’s household. (Ill. Rev. Stat., 1984 Supp., ch. 73, par. 755.01.) The question before us today is whether the abrogation of interspousal immunity is an expression of public policy which further limits the applicability of family exclusion clauses.

We believe this question is answered by examining the plain language of the Married Women Act. Nevertheless we begin with a brief historical overview in order to show that our holding is not contrary to the general policy underlying the abrogation of interspousal immunity.

At common law, spouses could not sue one another because they were considered to be a single entity. (Clark v. Clark (1892), 49 Ill. App. 163.) In 1861, an act was passed entitled “An Act to protect married women in their separate property.” (1861 Ill. Laws 143 (§1).) The intent of the Act was to protect the property of a married woman, by removing such property from the control of her husband and making her a single woman with regard to such property. (Emerson v. Clayton (1863), 32 Ill. 493.) The Emerson court went on to state that the commencement and prosecution of suits for the recovery of property could be brought by a married woman against her husband. Emerson, 32 Ill. at 498.

In subsequent years, the legislature enlarged the powers and relations of husband and wife, and the courts followed suit. “The Husband and Wife Act of 1874 for the first time established the general right of the married woman to sue and be sued.” (Ill. Ann. Stat., ch. 40, par. 1001, Historical & Practice Notes, at 180 (Smith-Hurd 1980).) In Thomas v. Mueller (1883), 106 Ill. 36, our supreme court stated that it was manifest from the 1874 act that the legislature intended to empower spouses to contract with each other and sue one another on such contracts as if they were not married. (Thomas, 106 Ill. at 42.) In Snell v. Snell (1888), 123 Ill. 403, 409, the court explained how the laws cited above served to place married women “upon a common footing with married men in respect to all property rights, including the means to acquire, protect and dispose of the same.”

Until 1953, however, there was no clear or conclusive determination of whether a married woman could sue her husband for torts inflicted by him upon her. Then, in Brandt v. Keller (1952), 413 Ill. 503, our supreme court held that under the Married Women Act of 1874, a married woman could maintain an action for damages against her husband for personal injuries caused by his wilful and wanton misconduct. (Brandt, 413 Ill. 503.) In Brandt, a wife sued her estranged husband for personal injuries she received as a result of his negligent handling of the automobile in which they were driving. The court examined the development of legal rights since common law and determined that the legislature in 1874 intended to expand the rights of a married woman to sue her husband in tort. (Brandt, 413 Ill. at 513.) In reaching its decision, the court dismissed policy arguments that conjugal peace would be disrupted by a tort suit arguing that, “when one spouse assails another or brings suit, there is not much domestic tranquility left to disrupt.” (Brandt, 413 Ill. at 511.) The court also dismissed arguments that the “potentiality of collusion, or of the perversion of the administration of justice” was any greater in a suit between spouses than between any other parties. (Brandt, 413 Ill. at 511.) Most importantly, the court noted the following:

“Nor does the fact that an insurance company may be the real defendant in interest in such cases constitute a ground for barring the action. In fact, this type of liability constitutes an additional risk which may be insured against, and would ultimately redound to the benefit of the insurer, rather than against his interest.” Brandt, 413 Ill.at 511.

The State legislature did not share the same views as those expressed by the Brandt court. In 1953, State law was amended to provide expressly that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” Ill. Rev. Stat. 1953, ch. 68, par. 11.

However, the courts and the legislature gradually created exceptions to this statute which eventually led to the complete abrogation of interspousal tort immunity envisioned by the Brandt court. For example, in 1981 the Illinois Domestic Violence Act amended this section to create an intentional tort exception to the doctrine of inter-spousal tort immunity. (Ill. Rev. Stat. 1981, ch. 40, par. 1001.) The Seventh Circuit Court of Appeals subsequently held the earlier statute to be in violation of the equal protection clause of the fourteenth amendment because it was not rationally related to the purported goal of maintaining marital harmony. (Moran v. Beyer (7th Cir. 1984), 734 F.2d 1245.) The court in Moran explained that it would truly strain the imagination “to find some objective basis for believing that depriving a physically battered spouse of a civil remedy for her injuries will advance some sense of ‘harmony’ with the person who inflicted the injury.” Moran v. Beyer, 734 F.2d at 1247.

In addition, in Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, we held that interspousal immunity cannot be used as a bar to an action by a joint tort-feasor for contribution. Thus, where a third party is sued by one spouse and that third party subsequently brings an action for contribution against the other spouse, that spouse cannot bar the action by claiming interspousal immunity. Apparently recognizing the import of this decision to the insurance industry, the legislature declared family exclusion clauses in vehicle insurance policies to be inapplicable when a third party acquires a right of contribution against a member of the insured person's family. (Ill. Rev. Stat., 1984 Supp., ch. 73, par. 755.01.) We find it significant that no similar statute was passed which would invalidate the use of a family exclusion clause in cases of intentional torts. See Palmer, 123 Ill. App. 3d 674.

Finally, effective January 1, 1988, the Married Women Act unambiguously set forth one spouse’s right to sue the other for any tort committed during the marriage. Ill. Rev. Stat. 1987, ch. 40, par. 1001.

In light of the history presented above, we conclude that the policy underlying the Married Women Act is one which seeks to increase the legal rights, entitlements, and powers of married women (and men) rather than one which seeks to assure the compensation of injured parties.

Defendants point to comments made by legislators in the course of enacting this amendment in order to illustrate a connection between insurance laws and the Married Women Act. However, we determine that the impact of these comments is greatly diminished in light of the plain language of the statute and in light of the language of the above-mentioned precursory statutes and court rulings interpreting those statutes.

Indeed, if the language of a statute is certain and unambiguous, we must enforce it as enacted. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 207.) Our purpose in examining the historical backdrop of the abrogation of interspousal tort immunity is simply to show that, by enforcing the plain language of the Married Women Act, we are not acting contrary to public policy as illuminated by a long line of laws and cases. To repeat, we determine that this policy is one which speaks to legal empowerment rather than guaranteed insurance coverage. Thus, to the extent that the instant family exclusion clause does not prevent a lawsuit brought by one spouse against the other, it does not contravene the public policy espoused by the unambiguously worded Rights of Married Women Act. This distinction between laws relating to the rights of women and those relating to insurance has not been overlooked by the courts.

For example, in Brandt, the court commented that the abrogation of interspousal immunity would simply give rise to a risk which may be insured against. (Brandt, 413 Ill. at 511.) The Brandt court did not indicate that such a risk must be insured against. (Brandt, 413 Ill. at 511.) In addition, courts did not invalidate a family exclusion clause when interspousal immunity for intentional torts was abrogated. For example, in Palmer, a wife was permitted to pursue an intentional tort action against her husband, but the insurance company was not ordered to provide coverage because of a family exclusion clause in its policy. (State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674.) That court further noted that its holding did not preclude the wife from seeking recovery under other sections of the policy which might apply. (Palmer, 123 Ill. App. 3d at 679.) Essentially, the abrogation of interspousal immunity for intentional torts did not automatically invalidate a family exclusion clause when the clause was used to bar coverage in the face of an intentional tort action. In fact, the court specially stated that “[t]he [family exclusion clause] does not violate the public policy of this State.” (Palmer, 123 Ill. App. 3d at 679.) The same result should occur here. It should not matter that the abrogated immunity applies to nonintentional torts rather than intentional ones. Thus, it appears that laws affecting interspousal immunity and those affecting insurance are not inextricably interrelated.

We believe that our holding is well supported by general principles of statutory construction. First, the language of the statute itself is the best indication of the intent of the drafters. (Allstate Insurance Co. v. Eggermont (1989), 180 Ill. App. 3d 55, 65.) Here, the statute is a simple codification of the abrogation of interspousal tort immunity:

“A husband or wife may sue the other for a tort committed during the marriage.” (Ill. Rev. Stat. 1987, ch. 40, par. 1001.)

There is nothing in this language to indicate that the drafters intended to affect insurance contracts. Moreover, “where the legislature uses certain words in one instance, and different words in another, different results were intended.” (Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 1105-06.) Thus, we cannot ignore the fact that the one time the legislature intended to invalidate the application of a family exclusion clause, it specifically did so by statute. See Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a) (where the Code prohibits the application of family exclusion clauses to third-party suits for contribution against members of the injured person’s family).

Finally, we reject defendants’ argument that the family exclusion clause violates the provisions of the financial responsibility act in force at the time of the accident (Ill. Rev. Stat. 1987, ch. 951k, par. 7—100 et seq.) for the reasons given in State Farm Mutual Automobile Insurance Co. v. Suarez (1982), 104 Ill. App. 3d 556. In Suarez, the court explained that while the legislature was concerned with the encouragement and promotion of the availability of several types of financial resources to compensate the injured, liability insurance was by no means the exclusive means to achieve that end. Suarez, 104 Ill. App. 3d at 561.

In addition, we reject defendants’ contention that the Illinois mandatory insurance law (Ill. Rev. Stat. 1989, ch. 95½, par. 7—601 et seq.) is an expression of public policy that would invalidate the family exclusion clause in the present case. Notwithstanding the fact that this provision is inapplicable to the present case because the date of its passage was subsequent to all of the relevant dates of this case, the uninsured motorist provision in plaintiff’s insurance policy would provide coverage sufficient to satisfy the requirements of the mandatory insurance laws. Indeed, plaintiff concedes that uninsured motorist coverage under the policy is available. We note that a family exclusion clause does not bar a claim for uninsured motorist benefits. (Allstate Insurance Co. v. Elhins (1979), 77 Ill. 2d 384; Farmers Insurance Group v. Nudi (1982), 108 Ill. App. 3d 151.) Therefore, even if the terms of the mandatory insurance laws applied here, they would not be violated by a family exclusion clause because sufficient insurance is available through the uninsured motorist provision of the insurance policy.

Thus, we reverse the order of the circuit court of Lake County, vacate the summary judgment for defendants, enter summary judgment for plaintiff regarding the validity and effect of the family exclusion clause, and the cause is remanded for proceedings consistent with this opinion. This holding should not be construed as precluding defendants from seeking recovery under other sections of the policy which may apply. Counterclaims regarding proper offers of uninsured motorist coverage that were not addressed in the trial court may be addressed on remand.

Reversed in part; vacated in part and remanded; and summary judgment entered.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS E. PERKINS et al., Defendants-Appellees.
    Second District
    Nos. 2 — 91—0273 through 2 — 91—0275 cons.
    Opinion filed February 21, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Steven J. Zick, Kathryn M. Frost, and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for the People.
    No brief filed for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals from the trial court’s order dismissing six traffic citations issued by the State police to defendants, Thomas E. and William E. Perkins, who were transporting overwide and overlong loads for Johnson Control Systems of Sycamore. The court determined that the defendants possessed a valid permit to operate the overwide and overlong vehicles on certain designated routes.

The permit had been issued on September 14, 1990, by the De Kalb and Boone County superintendents of highways to Johnson Control Systems (Johnson) for seven vehicles to be used to transport car seats between Johnson’s plant and the Chrysler plant in Belvidere. The permit was granted in accordance with the authority vested in De Kalb County under section 15—301 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1989, ch. 95½, par. 15— 301(a).) That section provides in pertinent part:

“The Department with respect to highways under its jurisdiction and local authorities with respect to highways under their jurisdiction may, in their discretion, upon application and good cause being shown therefor, issue a special permit authorizing the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in this Act or otherwise not in conformity with this Act upon any highway under the jurisdiction of the party granting such permit and for the maintenance of which the party is responsible. Applications and permits other than those in written or printed form may only be accepted from and issued to the company or individual making the movement. Except for an application to move directly across a highway the application shall show that the load to be moved by such vehicle or combination of vehicles cannot reasonably be dismantled or disassembled.” Ill. Rev. Stat. 1989, ch. 95½, par. 15—301(a).

Based on a resolution passed by De Kalb County (the county) in 1987, approving the issuance of such a special permit to Johnson, the permit had been renewed on an annual basis. At the times defendants were ticketed, the width and length of the vehicles operated by them were within the dimensions allowed by the permit.

The six tickets against the two defendant drivers were consolidated for a hearing. At the hearing the drivers were represented by counsel retained by Johnson. The State was represented by legal counsel of the Illinois State Police appearing as a special prosecutor. The De Kalb County State’s Attorney appeared on behalf of the county highway commissioner.

It was defendants’ position at the hearing that the county had issued a permit to Johnson to transport goods with overlong and over-wide trucks on certain specified routes, that at the time defendants were arrested the permit was in effect and the trucks were within the guidelines of the permit, and that, therefore, the tickets should be dismissed.

The State contended that the car seats being transported by Johnson constituted a divisible load, that it was Johnson’s duty to show the load was not divisible, that Johnson had not met this duty, and that the county, in issuing a permit, had no discretion to decide if the load was not divisible. Therefore, the State asserted, the permit issued to Johnson was void at the time of its issuance because the county had no authority to issue a permit for a divisible load.

The court did not agree with the State’s position and found that the loads were not “reasonably” divisible within the meaning of section 15—301(a). (Ill. Rev. Stat. 1989, ch. 95½, par. 15—301(a).) Additionally, the court determined that the statute grants a local authority, in this instance the county, the discretion to issue a special permit to operators of vehicles which are overwide or overlong and that by its issuance a presumption of validity arises as to the permit. In so finding, the court rejected the State's argument that operators charged with width or length violations must prove that they are exempt from such violations. Because defendants were driving within the conditions of the special permits, the court granted defendants’ motion to dismiss the traffic tickets.

The State appeals, contending (1) that the trial court erred in refusing to assign a burden of proof to defendants and (2) that defendants did not qualify for a permit. We note first that defendants have not filed a brief. Nevertheless, we decide the merits of this appeal because the record is simple, and we can easily decide the issues without an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133.

In its first contention the State argues that the trial court erred in not finding that the shipper, Johnson, bore the burden of proving that it was entitled to the special exemption which allowed it to operate overwide and overlong vehicles on the county highways. Relying on People v. Delk (1981), 96 Ill. App. 3d 891, and a subsection of the unlawful use of weapons statute pertaining to exemptions to the offense (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 2(h)), the State maintains that defendants had the burden of proving by a preponderance of the evidence that they were entitled to the exemption. The trial court did not agree with this contention, and neither do we.

Whenever the legislature has intended the burden of proof of any exemption or exception in an act to be upon the person claiming it, the legislature has specifically set forth that intent in a provision in the act. (See, e.g., section 24—2(h) of the deadly weapons statute (Ill. Rev. Stat. 1989, ch. 38, par. 24—2(h)); section 506 of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1506); section 16 of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56½, par. 716).) The fundamental principle of statutory construction is to give effect to the intent of the legislature. (State v. Mikusch (1990), 138 Ill. 2d 242, 247.) Here, where the legislature has not provided a provision within the Illinois Vehicle Code allocating the burden of persuasion as to exemptions, we will not presume that such a burden applies to Johnson.

Nevertheless, even if Johnson bore such a burden, we believe it was met as evidenced by the permit issued to Johnson. The trial court found that the issuance of the permit established the validity of the permit and that, by issuing the permit, the county demonstrated its belief that Johnson had shown it was entitled to an exemption. The State maintained throughout the hearing on the motion to dismiss that the county never had the authority to issue the permit. The State argued that a permit can only be issued if an oversized load could not “reasonably be dismantled or disassembled” (Ill. Rev. Stat. 1989, ch. 95½, par. 15—301(a)) and that, in this instance, the load, car seats, could be reasonably disassembled.

Section 554.501 of the Administrative Code discusses reasonable dismantling or disassembling and the issuance of permits. It provides:

“(a) Permits may be issued for overdimension objects and vehicles if they have been reasonably disassembled. Objects must be loaded within legal dimensions, if at all possible. Multiple objects, loaded side-by-side, end-to-end, or on top of each other, may not cause the overdimension. However, more than one overdimension object may be transported if it does not result in another dimension that exceeds legal limits.
(b) Permits to move empty overdimension vehicles may be obtained, but these vehicles may not normally be used to transport legal size loads. Consideration will be given to the movement of a legal size object requiring a special carriage that results in an oversize vehicle. An overdimension vehicle may be used to transport an overdimension object.” 92 Ill. Adm. Code §554.501 (1991).

Here, the objects being moved were car seats stored on pallets on tracks identical to tracks used in Chrysler’s Belvidere plant. Johnson manufactured the seats and shipped approximately 1,000 of them per day to the Chrysler plant. The seats were shipped by specially equipped trucks making approximately 16 runs per day. To accommodate these loads the trucks had to be wider than allowed by the Illinois Vehicle Code, i.e., 8 feet 6 inches instead of 8 feet, and longer, i.e., 67 feet rather than 60 feet. Johnson would take the pallets off the storage tracks at their location and transport the pallets by a mobile unit to tracks on the trucks. The pallets would then be double stacked on the trucks which were equipped with three tracks on two levels. When the trucks arrived in Belvidere, the pallets were removed from the tracks on the truck and placed on similar tracks in the Chrysler plant. Consequently, the car seats, although legal sized objects, required a special carriage to be transported from the Johnson plant to the Chrysler plant, and that carriage resulted in an oversized vehicle.

The legislature has established a statutory scheme in which over-wide and overlong vehicles may be operated on highways under a county’s jurisdiction although their operation would otherwise constitute a violation of section 15 —102 (Ill. Rev. Stat. 1989, ch. 95½, par. 15—102) and section 15—107 (Ill. Rev. Stat. 1989, ch. 951½, par. 15— 107). That scheme is set forth in section 15—301(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 15—301(a)). Section 15—301(a) gives local authorities, the county in this instance, the discretion to issue a special permit for the operation of an oversized vehicle if an applicant shows good cause. In 1987 Johnson applied to the county for a special permit allowing the company to move the car seats by oversized vehicles. Given the manner in which the car seats are shipped, “good cause” existed for the county to issue the permit. Moreover, we agree with the trial court that the issuance of the permit created a presumption that Johnson’s application showed the load could not “reasonably” be dismantled or disassembled for transporting. Also, contrary to the State’s contention at the hearing, the permit does not have to show that the load is not divisible. We conclude that the county did not abuse its discretion in issuing the permit, and, therefore, if the vehicles ticketed by the State police were operating within the terms of the permit, no violations of the Illinois Vehicle Code could be proven.

Here, defendants were in strict compliance with the permit issued. The vehicles transporting the car seats were within the width and length specifications designated in the permit and traveling on routes named in the permit. Since the permit was valid and since defendants were not in violation of the terms of the permit at the time of their arrest, the trial court did not err in dismissing the traffic citations.

Accordingly, the judgment of the circuit court of De Kalb County is affirmed.

Affirmed.

INGLIS and McLAREN, JJ., concur.


author: JUSTICE NICKELS

text:
    SCOTT CARLSON, Plaintiff-Appellee, v. ROBERT POWERS et al., Defendants (Good Shepherd Hospital, Lienholder-Appellant).
    Second District
    No. 2 — 91—0403
    Opinion filed February 20, 1992.

      Ronald J. Hennings and Terrance B. McGann, both of Grabowski & Clutts, of Evanston, for appellant.
    Dennis E. Carlson and John N. Dore, both of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Lienholder, Good Shepherd Hospital (hospital), appeals from an order of the circuit court of Lake County ruling that plaintiff’s attorney’s statutory lien (Ill. Rev. Stat., 1990 Supp., ch. 13, par. 14) included the costs and expenses of litigation and had priority over the hospital’s lien (Ill. Rev. Stat. 1989, ch. 82, par. 97 et seq.), which totally exhausted the funds available without payment of the hospital’s lien. The hospital raises the following issues on appeal: (1) whether the trial court had the authority to reduce its lien to less than one-third of amount of the settlement reached in plaintiff’s personal injury action; (2) whether plaintiff’s court costs and litigation expenses could be included as part of his attorney’s lien; and (3) whether public policy requires that the provisions of the Hospital Lien Act (Ill.Rev. Stat. 1989, ch. 82, par. 97 et seq.) be enforced. In response, plaintiff’s attorney asserts that the hospital failed to demonstrate it possessed a valid statutory lien and that the attorney was additionally entitled to an equitable lien for expenses and costs of the litigation in addition to its statutory lien. We affirm.

Plaintiff, Scott Carlson, was injured in an automobile accident on December 21, 1982. He was eventually admitted to the hospital for a course of treatment, for which expenses totalled $8,731.90.

In 1987, Carlson entered a contingent fee contract with his attorney providing that from any proceeds realized from Carlson’s claim, his attorney would receive reimbursement of costs incurred and fees of 40% of such proceeds. Carlson’s attorney filed a complaint on November 30, 1987, seeking damages from four defendants arising from Carlson’s personal injuries as a result of the 1982 automobile accident. The counts against one defendant were dismissed in November 1989, and plaintiff settled with two of the three remaining defendants for $10,000 on October 16, 1990, which settlement is the subject of the present litigation over lien priorities.

After the unsuccessful trial of his claim against the remaining defendant, Carlson filed two post-trial motions on November 21, 1990, which were denied in mid-March 1991. On April 9, 1991, Carlson again filed a post-trial motion requesting the court to reconsider and vacate its prior rulings on his post-trial motions, which was again denied on April 18,1991.

However, on January 9, 1991, before the court ruled on Carlson’s initial post-trial motions, Carlson filed a motion seeking to adjudicate the lien of the hospital and other health care providers. The motion alleged that Carlson’s litigation costs, expenses and attorney’s fees totalled $14,350.98. The hospital was the only health care provider and lienholder to respond to Carlson’s motion. The hospital responded that as a not-for-profit corporation, it was entitled to a lien in the amount of $8,731.90 pursuant to the Hospital Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 97 et seq.). The hospital argued that its lien could only be reduced to one third of Carlson’s settlement, or $3,333.33, as provided in the statute and that Carlson’s attorney was not entitled to deduct his fees or costs under the “common fund” doctrine. In response Carlson’s attorney argued the hospital had failed to establish it was not-for-profit and that his attorney’s lien had priority for the entire amount of Carlson’s settlement.

On February 27, 1991, the court entered its order adjudicating the liens of Carlson’s attorney and the health care providers. The court found that the hospital had a valid lien for $3,333.33 and that Carlson’s attorney had a valid attorney’s lien for 40% of the settlement or $4,000, which is not disputed. The court further ruled that Carlson’s attorney’s lien had priority, which is again not disputed. However, in addition to Carlson’s attorney’s fees, the circuit court found Carlson’s attorney’s lien included the costs of suit for a total of $14,350.98, and that his attorney was entitled to the full settlement of $10,000. Finally, the court adjudicated all remaining liens at $0 as no other health care provider proved the existence of its lien.

On March 28, 1991, the hospital filed its notice of appeal of the circuit court’s February 27, 1991, order and asserts that the lower court was without authority to reduce its lien beyond the already statutorily reduced amount of one-third of Carlson’s settlement, that costs and expenses of suit can not be included in an attorney’s statutory lien, and that public policy requires that the hospital’s lien be enforced.

Prior to considering the merits of this appeal, we are obligated to determine the question of our jurisdiction, although such issue was not raised by the parties. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 838-39.) Thus, we note that the hospital’s jurisdictional statement incorrectly indicates that jurisdiction is vested in this court pursuant to Supreme Court Rule 304(a) because the circuit court’s February order, from which the hospital appeals, does not contain the necessary language that “there is no just reason for delaying enforcement or appeal.” (134 Ill. 2d R. 304(a).) However, the circuit court’s March 13, 1991, order denying Carlson’s post-trial motion was a final order because Carlson’s April post-trial motion to vacate that order was impermissible as filed more than 30 days after the judgment or any permitted extension. (Sears v. Sears (1981), 85 Ill. 2d 253, 259; Drafz v. Parke, Davis & Co. (1980), 80 Ill. App. 3d 540, aff'd, Sears v. Sears (1981), 85 Ill. 2d 253.) Thus, the hospital’s notice of appeal on March 28, 1991, was timely filed within 30 days of the trial court’s March 13, 1990, final order denying Carlson’s post-trial motions, and our jurisdiction is properly invoked.

The Hospital Lien Act expressly provides that liens filed pursuant to its provisions are inferior to attorneys’ statutory liens. (Ill. Rev. Stat. 1987, ch. 82, par. 101; see also Hardwick v. Munsterman (1959), 15 Ill. 2d 564, 566 (identical provision of Public Assistance Code provides priority to statutory attorneys’ liens).) Without addressing the validity of the hospital’s alleged lien, we conclude that the circuit court neither reduced such lien nor failed to enforce it, but rather the circuit court properly found that Carlson’s attorney’s statutory lien was superior to that of the hospital. Thus, the only remaining issue is whether the circuit court erred in finding that Carlson’s attorney’s lien included costs and expenses of litigation in addition to attorney fees.

The Hospital Lien Act provides that a lien “shall, from and after the time of service of the above stated notice, attach to any verdict or judgment in any action by the injured party based on the negligent or wrongful act, and to any money or property which may be recovered by compromise settlement” (Ill. Rev. Stat. 1989, ch. 82, par. 98). Such language has been interpreted to mean that a lien only comes into existence when a recovery is made and there is property on hand to which it may attach. (In re Estate of Cooper (1988), 125 Ill. 2d 363, 369.) The Attorneys Lien Act similarly provides that “[s]uch lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice.” (Ill. Rev. Stat., 1990 Supp., ch. 13, par. 14.) Thus, the issue of whether Carlson’s attorney’s lien included the expenses and costs of litigation is controlled by the Attorneys Lien Act in effect when his lien came into existence on October 16, 1990, which is the date the settlement of Carlson’s suit was reached. Such statute, which became effective August 10,1990, provides:

“Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such suits, claims, demands or causes of action, plus costs and expenses.” (Emphasis added.) (Ill. Rev. Stat., 1990 Supp., ch. 13, par. 14.)

Thus, under the law then applicable, the court correctly determined that Carlson’s attorney was entitled to a lien for his fees and the costs of litigation and that such lien had priority over any alleged lien of the hospital. Thus, we need not address Carlson’s attorney’s assertions that he was entitled to an equitable lien for the amount of the expenses incurred or that the hospital failed to establish a valid lien.

The judgment of the circuit court finding that plaintiff’s attorney was entitled to the entire amount of plaintiff’s $10,000 settlement in satisfaction of his attorney’s lien is affirmed.

Affirmed.

DUNN and UNVERZAGT, JJ., concur.