text:
    RUBY SUMMERS, Adm'r of the Estate of James Summers, Deceased, Plaintiff-Appellant, v. UNITED STATES TOBACCO COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—3098
    Opinion filed May 28, 1991.

      James J. McGraw and Anna Marek, both of Hanover Park, for appellant.
    Glass, Hill, Dallmeyer & Roth, Ltd., of Northbrook (Michael M. Roth, of counsel), for appellee United States Tobacco Company.
    Tribler & Orpett, P.C., of Chicago (D.J. Sartorio and Philip R. King, of counsel), for appellee Aetna Life & Casualty Company.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Ruby Summers, as administrator of the estate of James Summers, deceased (plaintiff), filed a two-count complaint against defendants United States Tobacco Company (U.S. Tobacco) and Aetna Life & Casualty Company (Aetna) alleging that the termination of decedent’s employment and health benefits were in violation of: (1) The Employment Retirement Investment Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq. (1988)); (2) the “bad faith” provision of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 767); and (3) various State common-law theories, including breach of contract and wrongful discharge. Pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), the circuit court granted defendants’ motions to dismiss plaintiff’s complaint on Federal preemption and other grounds. We affirm.

The record reflects that plaintiff is the court-appointed administrator of the estate of her deceased husband, James Summers (the deceased). Prior to his death on June 11, 1987, the deceased had worked as an electrician for U.S. Tobacco since January 6, 1986. As a condition of his employment, the deceased was required to join the International Brotherhood of Electrical Workers, No. 134, which, during the duration of the deceased’s employment, was a party to a collective-bargaining agreement with U.S. Tobacco (the union agreement). This agreement governed the deceased’s rights as to such matters as allowable sick days, health benefits, leaves of absence, termination of employment for “just cause,” and grievance procedures to review terminations.

The deceased’s absence from work began on January 16, 1987, and continued until his death. Under the union agreement, the deceased was entitled to and given a 30-day leave of absence without pay after his five allowable sick days were exhausted on January 22, 1987. After the initial 30-day period expired, and although not required by the union agreement, U.S. Tobacco extended the deceased’s leave of absence status for two additional 30-day periods. On April 28, 1987, U.S. Tobacco removed the deceased from his leave of absence status and thereafter terminated him for “just cause” due to excessive absenteeism. The deceased never instituted any grievance procedure following his termination and elected to convert his group medical insurance to an individual policy.

Count I of plaintiff’s complaint, brought against U.S. Tobacco, alleges that while employed, the deceased had received better than average job evaluations. Plaintiff alleges that on or about April 10, 1987, U.S. Tobacco learned that the deceased was totally disabled, but nevertheless terminated the deceased due to his illness on May 1, 1987, in violation of section 510 of ERISA (29 U.S.C. §1140 (1988)), and cancelled his major medical insurance policy with Aetna. Plaintiff alleges that U.S. Tobacco personnel advised the deceased to get Aetna’s converted coverage as a terminated employee so that his bills would get paid, but that this coverage proved insufficient by over $50,000. As a proximate result of U.S. Tobacco’s conduct, plaintiff alleges that the deceased and his family suffered loss of wages, benefits, severe emotional distress and humiliation.

Count II of the complaint, brought against both U.S. Tobacco and Aetna, alleges that on or about the latter part of 1986, U.S. Tobacco entered into an employment agreement with the deceased in which he was entitled to major medical coverage, vacation pay, profit sharing, sick pay and other benefits. Plaintiff further alleges that on May 1, 1987, the deceased was wrongfully dismissed without a proper hearing; that his dismissal was unwarranted and unjust since his illness was to be covered and was so covered up until the time it was learned the deceased was terminated by U.S. Tobacco; and that this cancellation was without cause and in violation of section 510 of ERISA and section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 767). Count II concludes by alleging that as a result of U.S. Tobacco’s and Aetna’s breaches of employment and major medical coverage contracts, the deceased has suffered lost wages, vacation pay, health and welfare premiums that were once paid, unpaid medical bills, mental anguish and distress due to harassment by various medical professionals.

U.S. Tobacco’s motion to dismiss interpreted plaintiff’s suit as setting forth a theory of “wrongful discharge.” Under this interpretation, U.S. Tobacco contended that its decisions relating to (1) placing the deceased on a leave of absence status, (2) removing him from that status, and (3) terminating him for “just cause” based on his excessive absenteeism were all consistent with the union agreement. Moreover, U.S. Tobacco contended that to the extent the deceased’s discharge was inconsistent with the union agreement, section 301 of the Labor Management Relations Act of 1947 (the LMRA) (29 U.S.C. §185 (1988)) required dismissal because the LMRA either preempted the deceased’s common-law “wrongful discharge” claim or barred the claim due to the deceased’s failure to institute any of the union agreement’s grievance procedures.

On January 10, 1990, the circuit court agreed with U.S. Tobacco’s arguments. It concluded that plaintiff’s complaint alleged nothing more than a violation of the “just cause” provision of the collective-bargaining agreement. Relying on Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904, and Perkins v. Pepsi-Cola General Bottlers, Inc. (1987), 158 Ill. App. 3d 893, 511 N.E.2d 901, the court held that plaintiff’s claim was either preempted by Federal labor law or was governed by section 301 of the LMRA. The court noted that under the LMRA, the deceased was required to exhaust the union agreement’s administrative remedies prior to suit or have an adequate excuse for not doing so. Because the deceased’s illness did not excuse his failure to exhaust those remedies, the court dismissed plaintiff’s claim against U.S. Tobacco.

As for Aetna’s motion to dismiss plaintiff’s complaint, Aetna contended that ERISA governed U.S. Tobacco’s plan and, consequently, the circuit court lacked subject-matter jurisdiction over any alleged ERISA violation because jurisdiction over such actions rests exclusively with the Federal courts. Aetna further argued that as for plaintiff’s Illinois statutory and common-law claims, ERISA also acted to preempt them.

In its January 1990 order, the circuit court agreed with Aetna and dismissed plaintiff’s section 155 claim on the ground that the claim was preempted under ERISA and that there was no vexatious refusal to pay; The court further found that Aetna had committed no wrongful conduct because under the terms of Aetna’s claims administration agreement with U.S. Tobacco, Aetna’s obligation to pay benefits to the deceased expired when U.S. Tobacco severed its employment relationship with the deceased.

On appeal, plaintiff contends: (1) the circuit court had subject-matter jurisdiction over its ERISA claim against both defendants; (2) ERISA does not preempt its section 155 claim against Aetna; (3) the ERISA claim sufficiently stated a cause of action; and (4) the deceased’s failure to exhaust the internal remedies of the collective-bargaining agreement does not preclude plaintiff’s suit under ERISA because such exhaustion was excused under the circumstances of this case. Plaintiff also seeks, for the first time, the opportunity to amend her complaint if this court determines that dismissal was otherwise proper.

The first issue we address is whether the circuit court had subject-matter jurisdiction over plaintiff’s ERISA claim filed against U.S. Tobacco and Aetna. We assume, as the parties have, that ERISA governs U.S. Tobacco’s benefits plan. Title I of ERISA applies to an employee benefit plan established or maintained by any employer that is engaged in commerce or in any industry or activity affecting commerce. (29 U.S.C. § 1003(a) (1988).) Employee benefit plans for purposes of Title I of ERISA include employee welfare benefit plans, employee pension benefit plans, and plans that are both. (29 U.S.C. §1002(3) (1988).) “Employee welfare benefit plans” are defined in part as “any plan, fund, or program *** maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.” (29 U.S.C. §1002(1) (1988).) Given ERISA’s broad scope, we continue under the assumption that U.S. Tobacco’s plan is governed by ERISA.

Plaintiff’s complaint purports to set forth a cause of action based on section 510 of ERISA (29 U.S.C. §1140 (1988)), which provides in part:

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary *** for the purpose of interfering with the attainment of any right to which such participant may become entitied under the plan ***. *** The provisions of section 1132 of this title shall be applicable in the enforcement of this section.”

Section 1132, referred to above, is ERISA’s civil enforcement provision. While section 1132 has numerous civil enforcement provisions, only two are potentially implicated in this appeal: section 1132(a)(1)(B) and section 1132(a)(3). Section 1132(a) provides in part:

“A civil action may be brought—
(1) by a participant or beneficiary—
* * *
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
* * *
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this sub-chapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provision of this subchapter of the terms of the plan.” 29 U.S.C. § 1132(a) (1988).

The importance of determining whether plaintiff’s complaint sets forth a cause of action under section 1132(a)(1)(B) or section 1132(a)(3) impacts directly on the issue of State court subject-matter jurisdiction. As expressed in section 1132(e)(1), State court jurisdiction only exists with respect to actions brought under 1132(a)(1)(B):

“Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.” 29 U.S.C. § 1132(e)(1) (1988).

Illinois courts as well as others have recognized from ERISA’s express language that section 1132(a)(1)(B) actions and those arising under section 1132(a)(3) are distinct for subject-matter jurisdiction purposes; only those actions brought by a participant or beneficiary pursuant to section 1132(a)(1)(B) may be brought in State courts. (Rizzo v. Travelers Insurance Co. (1989), 193 Ill. App. 3d 67, 549 N.E.2d 810; Arnold v. Babcock & Wilcox Co. (1987), 154 Ill. App. 3d 863, 507 N.E.2d 218, aff'd (1988), 123 Ill. 2d 67, 525 N.E.2d 59; Duffy v. Brannen (1987), 148 Vt. 75, 529 A.2d 643; Imler v. Southwestern Bell Telephone Co. (1982), 8 Kan. App. 2d 71, 650 P.2d 712.) These courts note that Congress’ rationale for limiting State court jurisdiction to section 1132(a)(1)(B) actions is Congress’ recognition that these actions call upon courts to interpret the terms of a plan by applying general principles of contract law, an area with which they have substantial expertise. On the other hand, Congress left violations of ERISA, embraced by the remaining provisions of section 1132(a) (Kross v. Western Electric Co. (7th Cir. 1983), 701 F.2d 1238 (section 1140 violation); Witkowski v. St. Anne's Hospital, Inc. (1983), 113 Ill. App. 3d 745, 447 N.E.2d 1016 (same); Pierce v. PJG & Associates, Inc. (1984), 128 Ill. App. 3d 471, 470 N.E.2d 1096 (breach of fiduciary duty under section 1104)), to the exclusive jurisdiction of Federal courts in order to protect employers and fiduciaries from the threat of conflicting and inconsistent State and local regulations. Duffy, 148 Vt. at 84, 529 A.2d at 648.

In this case, plaintiff’s complaint explicitly cites section 1140 as the ERISA provision that U.S. Tobacco and Aetna violated. We believe that while plaintiff could have better expressed this action, it sufficiently sets forth allegations to support a pretextual discharge. (See Kross, 701 F.2d at 1242-43.) However, as expressed above, the circuit court lacked subject-matter jurisdiction to hear the section 1140 action because such actions belong exclusively in Federal courts. Accordingly, we affirm the circuit court’s dismissal of plaintiff’s section 1140 action against each defendant.

In anticipation of our conclusion on the jurisdiction issue, plaintiff requests for the first time a remand by this court to permit an amendment of her complaint in order to plead a section 1132(a)(1)(B) cause of action. As indicated, State courts have concurrent jurisdiction over these actions. Aetna responds that because plaintiff had every opportunity to amend her complaint prior to appeal, her request to amend at this stage of the proceedings comes too late. We agree. Plaintiff elected to stand on her complaint and asked the court below only to deny defendants’ motions to dismiss. Even in the face of defendants’ motions, plaintiff elected to not amend her complaint to assert a section 1132(a)(1)(B) cause of action. We believe that plaintiff has waived her request to amend. See Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 384 N.E.2d 91.

The second issue we address is whether ERISA preempts plaintiff’s statutory and common-law causes of actions. Section 514(a) of ERISA outlines the preemptive effect of ERISA on State laws. It provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” (Emphasis added.) (29 U.S.C. §1144(a) (1988).) For purposes of section 514(a), ERISA defines “State law” to include “all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” (29 U.S.C. §1144(c)(1) (1988).) The broad preemptive language set forth in section 514(a) is limited by a “savings” clause which deals with State regulation of insurance companies. This savings clause provides in relevant part that “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. §1144(b)(2)(A) (1988).

Recently, the United States Supreme Court reiterated the broad preemptive effect that ERISA has on State laws that “relate to” employee benefit plans. In Ingersoll-Rand Co. v. McClendon (1990), 498 U.S. 133, 112 L. Ed. 2d 474, 111 S. Ct. 478, the Court addressed the issue of whether ERISA preempted a State common-law action which alleged that an employer pretextually discharged its employee in order to avoid contributing to the employee’s pension fund. In concluding that ERISA preempted the action, the Court noted that Congress’ intent, as shown by the language Congress selected, was to enact a broad preemption provision:

“The key to §514(a) is found in the words ‘relate to.’ Congress used those words in their broad sense, rejecting more limited pre-emption language that would have made the clause ‘applicable only to state laws relating to the specific subjects covered by ERISA.’ [Citation.] Moreover, to underscore its intent that §514(a) be expansively applied, Congress used equally broad language in defining the ‘State law’ that would be preempted.” McClendon, 498 U.S. at 138-39, 112 L. Ed. 2d at 483, 111 S. Ct. at 482-83.

Illinois courts have recognized the broad, preemptive effect of ERISA. In Witkowski v. St. Anne's Hospital, Inc. (1983), 113 Ill. App. 3d 745, 447 N.E.2d 1016, the court found that ERISA preempted claims under Illinois common law predicated upon contract and retaliatory discharge, where plaintiff alleged that she was discharged to prevent her collection of long-term disability benefits. Similarly, in Rizzo v. Travelers Insurance Co. (1989), 193 Ill. App. 3d 67, 549 N.E.2d 810, the court found that ERISA preempted Illinois common-law claims predicated on negligence and contract where the plaintiff-beneficiary alleged that she was deprived of benefits under a group life insurance policy issued to her deceased husband.

In this case, the gravamen of plaintiff’s complaint is that her husband was terminated in order to cease the flow of health-care benefits to a man who was extremely ill. Such a claim, to the extent it relies on State common law for its generation, is preempted under ERISA. Similarly, plaintiff’s allegations of breach of contract or wrongful discharge, as they relate to U.S. Tobacco’s health plan, are preempted.

As for plaintiff’s allegation that Aetna violated section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 767), we believe that Pilot Life Insurance Co. v. Dedeaux (1987), 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549, is dispositive. In Pilot Life, the Court found that ERISA preempted State common-law tort and contract actions asserting the improper processing of claims for benefits under an employee benefit plan. Significantly, the court also rejected the argument that the “savings clause” saved from preemption plaintiff’s tort claim that was predicated upon a “bad faith” processing of an insurance benefit claim. While an argument can be advanced that Pilot Life is distinguishable on the ground that plaintiff’s “bad faith” claim here is statutory in nature, as opposed to the common-law claim in Pilot Life, Pilot Life’s strong emphasis on ERISA’s broad preemptive effect would require a rejection of such distinction. As the Court stated:

“In sum, the detailed provisions of [section 1132(a)] set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. ‘The six carefully integrated civil enforcement provisions found in [section 1132(a)] of the statute as finally enacted ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ ” (Emphasis in original.) Pilot Life, 481 U.S. at 54, 95 L. Ed. 2d at 52, 107 S. Ct. at 1556, quoting Massachusetts Mutual Life Insurance Co. v. Russell (1985), 473 U.S. 134, 146, 87 L. Ed. 2d 96, 106, 105 S. Ct. 3085, 3092.

Aside from Pilot Life, at least one court has addressed ERISA’s preemptive effect upon a section 155 action. In Buehler Ltd. v. Home Life Insurance Co. (N.D. Ill. 1989), 722 F. Supp. 1554, the plaintiff-beneficiary alleged a vexatious and unreasonable delay in violation of section 155. Plaintiff alleged this violation in connection with the settling of his claim as a beneficiary to certain life insurance benefits that were provided under a group life insurance policy issued to his employee-brother. The Buehler court, in a thorough analysis, relied on Pilot Life to conclude that ERISA preempted plaintiff’s section 155 claim and was not saved by ERISA’s “savings” clause. (See also Gadsby v. Health Insurance Administration, Inc. (1988), 168 Ill. App. 3d 460, 522 N.E.2d 865; Russo v. Boland (1982), 103 Ill. App. 3d 905, 431 N.E.2d 1294 (holding that ERISA preempted claims alleging violations of the Illinois Insurance Code).) Other courts have also found that ERISA preempts similar bad-faith statutes of other States. (See Kanne v. Connecticut General Life Insurance Co. (9th Cir. 1988), 867 F.2d 489, cert. denied (1989), 492 U.S. 906, 106 L. Ed. 2d 566, 109 S. Ct. 3216 (California); In re Life Insurance Company of North America (8th Cir. 1988), 857 F.2d 1190 (Missouri); Anschultz v. Connecticut General Life Insurance Co. (11th Cir. 1988), 850 F.2d 1467 (Florida); see also Chemers & Franco, The Preemption of State Claims Under ERISA, 78 Ill. B.J. 550 (Nov. 1990); Bishop & Denney, Hello ERISA, Good-bye Bad Faith: Federal Pre-emption of DTPA, Insurance Code, & Common Law Bad Faith Claims, 41 Baylor L. Rev. 267 (1989); Klerin, Rosen & Stedman, Pilot Life’s Dramatic Impact—The Supreme Court Revolutionizes Insurance Bad Faith Law, L.A. Law. Oct. 1987, at 37.) Accordingly, given ERISA’s broad preemptive effect on State law, whether that law be statutory or common law, we find that plaintiff’s statutory bad-faith claim is preempted.

Finally, we address what impact Federal labor law has on plaintiff’s complaint. Section 301 of the LMRA states:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce *** may be brought in any district court of the United States having jurisdiction of the parties ***.” (29 U.S.C.§ 185(a) (1988).)

In Pilot Life, the Court reviewed its prior rulings which had addressed section 301’s broad preemptive effect:

“Section 301 preempts any ‘state-law claim [whose resolution] is substantially dependent upon the analysis of the terms of an agreement made between the parties in a labor contract.’ [Citation.] *** In Lucas Flour the Court found that ‘[t]he dimensions of §301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute.’ [Citation.] ‘[I]n enacting §301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.’ [Citation.] Indeed, for purposes of determining federal jurisdiction, this Court has singled out *** the LMRA as having ‘pre-emptive force ... so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law.’” Pilot Life, 481 U.S. at 55-56, 95 L. Ed. 2d at 53, 107 S. Ct. at 1557.

In this case, to the extent plaintiff’s complaint can be read as alleging a State-law cause of action for U.S. Tobacco’s violation of its employment agreement with the deceased, such action is preempted. (Mitchell v. Pepsi-Cola Bottlers, Inc. (7th Cir. 1985), 772 F.2d 342, cert. denied (1986), 475 U.S. 1047, 89 L. Ed. 2d 575, 106 S. Ct. 1266; Perkins v. Pepsi-Cola General Bottlers, Inc. (1987), 158 Ill. App. 3d 893, 511 N.E.2d 901.) Moreover, because plaintiff has failed to present an adequate excuse for not instituting grievance procedures within the union agreement, her action was properly dismissed. Mitchell, 772 F.2d at 347.

For the foregoing reasons, we affirm the circuit court’s dismissal of plaintiff’s complaint with prejudice.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    MARY SJOGREN, Plaintiff-Appellant, v. MAYBROOKS, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—90—0485
    Opinion filed May 28, 1991.

      Smolin, Blum & Brandwein, of Chicago (James B. Goldberg, of counsel), for appellant.
    Randall, Gayle & Patt, of Glenview (Michael G. Phillips, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Mary Sjogren appeals from orders of the circuit court of Cook County dismissing one count of her complaint against defendant Maybrooks and denying her motion to amend an agreed order.

The record on appeal indicates the following. On February 4, 1989, plaintiff allegedly entered into an oral contract to sell computer equipment worth $6,850 to defendant. The equipment was delivered to defendant on February 13, 1989. Defendant did not pay for the equipment upon delivery or any of plaintiff’s subsequent requests for payment.

Defendant had use of the computer equipment for 38 days. Plaintiff filed a two-count complaint against defendant on March 17, 1989. Only the first count, alleging breach of oral contract, is before this court. Defendant attempted to return the equipment on March 23, 1989, but plaintiff refused delivery. Defendant was served with plaintiff’s summons and complaint on March 29, 1989.

Defendant then filed a motion to dismiss the breach of oral contract claim pursuant to section 2—619(a)(7) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(7)), alleging that plaintiff’s claim was barred by the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 26, par. 2—201). On August 7, 1989, the trial court entered an agreed order granting plaintiff until September 19, 1989, to respond to the motion. On August 21, 1989, plaintiff filed a motion to modify the August 7 order so that plaintiff would have 21 days from receipt of written discovery requested by plaintiff to respond to the motion to dismiss. On September 15, 1989, the trial court denied plaintiff’s motion, leaving the September 19 deadline intact.

Following a hearing on defendant’s section 2 — 619 motion, the trial court dismissed the claim, determining that the claim was barred by the Statute of Frauds. This appeal followed.

Initially, we note that the purpose of a section 2—619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact. (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703, 501 N.E.2d 156.) The court may, in its discretion, decide questions of fact upon the hearing of the motion. (North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664.) However, if the court cannot determine with reasonable certainty that the alleged defense exists, the motion should be denied. (Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 667, 373 N.E.2d 645.) Moreover, in deciding the merits of the motion, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 477 N.E.2d 1249.

Plaintiff’s first argument on appeal is that plaintiff’s partial performance of the contract — delivering the computer equipment — takes her claim outside the Statute of Frauds. Plaintiff relies upon Anastasio v. Radford (1958), 14 Ill. 2d 526, 153 N.E.2d 37, and its progeny, in support of this contention. See Andersen v. Koss (1988), 173 Ill. App. 3d 872, 527 N.E.2d 1098; Cooper v. Pedersen (1961), 29 Ill. App. 2d 384, 173 N.E.2d 549.

Although acts of partial performance are typically sufficient to take an oral agreement out from under the operation of the Statute of Frauds in an action at equity, such acts do not take an action at law outside the operation of the Statute of Frauds. (Gibbons v. Stillwell (1986), 149 Ill. App. 3d 411, 415, 500 N.E.2d 965, 968-69 (citing numerous Illinois cases). Compare e.g., Rose v. Dolejs (1953), 1 Ill. 2d 280, 116 N.E.2d 402 (action at equity), with Wheeler v. Frankenthal & Brothers (1875), 78 Ill. 124 (action at law).) This rule is a specific reflection of the general principle that the aid of equity can be invoked only in the absence of an adequate legal remedy. (White v. City of Ottawa (1925), 318 Ill. 463, 149 N.E. 521; Eveland v. Board of Education (1950), 340 Ill. App. 308, 92 N.E.2d 182.) Although law and equity have been merged in our modern court system, equitable relief will not lie where there is an adequate remedy at law. Ives v. Town of Limestone (1978), 62 Ill. App. 3d 771, 379 N.E.2d 394.

The cases cited by plaintiff were actions for equitable relief; Anastaplo concerned injunctive relief, Andersen concerned replevin and Cooper concerned specific performance. In this case, plaintiff’s alleged oral contract with defendant was not for the purchase of a particular piece of real property or for delivery of any sort of unique item, such as a show dog or shares of corporate stock that are not available on the open market. Plaintiff therefore had an adequate remedy at law for damages and is not entitled to seek equitable relief. Indeed, her complaint seeks damages alone. The doctrine of part performance does not apply to an action at law for damages; hence, the delivery of the equipment does not take the alleged oral agreement out of the Statute of Frauds.

Plaintiff’s next two arguments are related and will be considered together. Plaintiff maintains that the trial court erred in dismissing the breach of oral contract claim because defendant’s use of the goods was inconsistent with plaintiff’s ownership. Plaintiff also maintains that defendant failed to effectively reject the goods. Defendant disagrees with both of these contentions.

Illinois law provides that a contract which fails to meet the formal requirement of a writing signed by the party to be charged, but which would otherwise be valid, is enforceable “with respect to goods for which payment has been made and accepted or which have been received and accepted.” (Ill. Rev. Stat. 1987, ch. 26, par. 2—201(3)(c).) It is undisputed that no payment has been made in this case. It is equally undisputed that the goods were received by defendant.

Acceptance of goods is governed by section 2—606 of the Uniform Commercial Code (UCC), as adopted in Illinois, which provides in relevant part:

“(1) Acceptance of goods occurs when the buyer
* * *
(b) fails to make an effective rejection ***, but such acceptance does not take place until the buyer has had a reasonable opportunity to inspect them; or
(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful against the seller it is an acceptance only if ratified by him.” (Ill. Rev. Stat. 1987, ch. 26, pars. 2—606(1)(b), (1)(c).)

Section 2—602 of the UCC governs rightful rejection of goods and provides in relevant part:

“(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
(2) ***
(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller.” (Ill. Rev. Stat. 1987, ch. 26, pars. 2—602(1), (2)(a).)

Section 1—204 of the UCC provides in relevant part:

“(2) What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.
(3) An action is taken ‘seasonably’ when it is taken at or within the time agreed or if no time is agreed at or within reasonable time.” Ill. Rev. Stat. 1987, ch. 26, pars. 1—204(2), (3).

These sections of the UCC are set out to demonstrate that the concepts of acceptance and rejection of goods are linked. (See, e.g., Ill. Ann. Stat., ch. 26, par. 2—602, Illinois Code Comment, at 429 (Smith-Hurd 1963).) The common thread connecting these two concepts is reasonableness. The UCC definition of a reasonable time suggests that the question of reasonableness is particularly fact sensitive. (See Ill. Rev. Stat. 1987, ch. 26, par. 1-204(2).) It follows that “[wjhether conduct has amounted to an acceptance or a rejection of goods is a question of fact ‘to be determined within the framework of the facts of each particular case.’ ” 4 R. Anderson, Uniform Commercial Code §2—606:16, at 102-03 (1983), quoted in Alden Press, Inc. v. Block & Co. (1988), 173 Ill. App. 3d 251, 262, 527 N.E.2d 489, 495; see also Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App. 3d 980, 408 N.E.2d 403 (and cases cited therein).

Consequently, the cases relied upon by both parties are of little help to this court, for none of the cases cited involve the sale of computer equipment of the sort involved in this case.

We therefore arrive at the ultimate issue in this matter, which is whether the trial court properly dismissed the claim for breach of oral contract pursuant to section 2—619. As the foregoing discussion indicates, the crucial question before the trial court was whether defendant’s use of the computer equipment for 38 days constituted acceptance and, if so, whether defendant rightfully rejected the equipment. The record on appeal contains the affidavits of both parties as to the terms of the alleged oral contract. However, the record on appeal does not contain evidence concerning what would be a reasonable time to accept or reject the goods under the circumstances of this case. Nor does the record provide much detail on the nature, purpose and circumstances of the transaction at issue.

In sum, the record on appeal is largely devoid of evidence bearing on the factual question of whether defendant used the equipment for more than a reasonable period of time. The trial court could not rely solely on the conflicting affidavits of the parties, leaving acceptance and rejection as controverted issues of fact. See Premier Electrical Construction Co., 132 Ill. App. 3d at 493, 477 N.E.2d at 1255-56.

Given our disposition of this matter, we need not address plaintiff’s final argument, that the court erred in denying her motion to delay the hearing on the section 2—619 motion until 21 days following receipt of discovery sought by plaintiff. The records sought by plaintiff, had they been before the trial court, may or may not have provided a sufficient factual basis for granting the motion. It suffices to note here that the record as it currently stands does not present an easily proved issue of fact.

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed and remanded for further proceedings.

Reversed and remanded.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE STAMOS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—0441
    Opinion filed May 28, 1991.

      Thomas Peters and William P. Murphy, both of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

A jury found defendants George Stamos (defendant) and Paul Kristalidis (Kristalidis) guilty of delivery of a controlled substance and armed violence. Defendant was sentenced to concurrent seven-year terms in prison. On appeal, defendant raises as issues: (1) whether the circuit court erred in denying his motion for a severance from his co-defendant; (2) whether the circuit court erred in denying his motion for a mistrial based on an alleged reference by a witness to his failure to testify; (3) whether the circuit court erred in denying his motion to waive a jury trial after all testimony had been presented; and (4) whether he was proven guilty of armed violence beyond a reasonable doubt.

On June 24, 1987, defendant was arrested for and later charged by indictment along with Kristalidis with delivery of a controlled substance, unlawful possession of a weapon, and armed violence. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2); Ill. Rev. Stat. 1987, ch. 38, par. 24—1(a)(7); Ill. Rev. Stat. 1987, ch. 38, par. 33A—2.) On January 11, 1989, the day jury selection was to begin, defendant’s attorney moved for a severance from Kristalidis on the grounds that defendant and Kristalidis had mutually antagonistic defenses. The court denied the motion, and trial of both defendant and Kristalidis proceeded.

Sergeant James Gentilcore of the Illinois Department of State Police was the prosecution’s first witness. According to Gentilcore, on January 27, 1987, he was involved in an ongoing investigation of Kristalidis. Prior to this date, in November 1987, Gentilcore had met with Kristalidis, who had identified himself as “Nick the Greek.” At this meeting, Kristalidis asked Gentilcore if he wanted to “conduct business” with him that day. Kristalidis then gave Gentilcore a clear plastic bag containing a purported ounce of cocaine and, in return, Gentilcore gave him $1,900. Also at this meeting, Gentilcore and Kristalidis exchanged pager numbers.

In January 1987, Gentilcore again met with Kristalidis and, during this meeting, Kristalidis gave Gentilcore a telephone number where he could be reached if Gentilcore wanted to make additional purchases. Kristalidis instructed Gentilcore that if he was not there, his roommate George would make sure that he received the message. Gentilcore and Kristalidis also agreed that the code “999” would be inserted at the end of phone numbers when using the pager in order to identify who was calling.

On January 27, 1987, at 12:43 p.m,, Gentilcore called the number given to him by Kristalidis and spoke to a man who identified himself as “Allen.” Gentilcore, after meeting defendant, recognized the voice of “Allen” as that of defendant. During the phone conversation, defendant told Gentilcore that Kristalidis was sleeping; defendant further stated that he was aware of the cocaine sale and, as far as he knew, it was a “go.” Defendant then told Gentilcore to call back at around 5 p.m.

At approximately 5 p.m., Gentilcore called Kristalidis’ number and again spoke with defendant, who told him that Kristalidis had left earlier to obtain the cocaine and asked him to call back later. At around 5:50 p.m., Gentilcore called again and spoke with defendant, who stated that he had spoken with Kristalidis and that Kristalidis would call or page Gentilcore so that arrangements could be made to meet later. At approximately 6:40 p.m., Gentilcore received a page from Kristalidis with his number followed by “999.” When Gentilcore returned the call, Kristalidis instructed him to come to his home at 3629 North Whdpple and to ring the unmarked, lighted doorbell.

After arranging for backup and surveillance and preparing a listing of the marked bills, Gentilcore arrived at Kristalidis’ residence at approximately 8:20 p.m. He pressed the unmarked, lighted doorbell and, one minute later, the door was answered by defendant, who asked Gentilcore if he was “Jim.” Gentilcore replied that he was, and defendant instructed him to go up the stairs to the second-floor apartment where they had an ounce of cocaine for him. Gentilcore then followed defendant into the second-floor apartment, where Kristalidis was seated on a mattress next to a table. On the table was a knife and a two-inch by four-inch board with white powder on it.

After Gentilcore entered the apartment, Kristalidis reached under the mattress and pulled out a single-barreled sawed-off shotgun and pointed it at Gentilcore, stating that he was interested in selling the gun. Gentilcore then grabbed the gun away from Kristalidis, warning him that it might be loaded. Kristalidis grabbed the gun from Gentilcore and attempted to remove the shells from the gun; he was able to remove one of the shells, two were removed later. Gentilcore again took the gun away from Kristalidis and, at this time, defendant requested to see the gun. Gentilcore handed the gun to defendant, who examined it and stated that “whoever cut down the barrel did a bad job because it wasn’t smooth because there appears to be rust on the barrel.”

After showing Gentilcore the gun, Kristalidis removed from under the mattress a clear plastic bag containing cocaine which he described as “rock,” meaning high quality, pure cocaine. After the cocaine was weighed, defendant told Gentilcore that the cocaine was mostly “rock” and that he would “be able to cut it several times before” selling it and “make a lot of money with this stuff.”

Gentilcore asked Kristalidis what price he wanted for the cocaine and the gun; Kristalidis responded that he wanted $1,600 for the cocaine and $150 for the shotgun. After some negotiations, Gentilcore and Kristalidis agreed upon $1,600 for the cocaine and $100 for the gun. Before giving the gun to Gentilcore, Kristalidis took it from defendant and showed Gentilcore how to conceal the gun while carrying it. After wiping off his fingerprints from the gun, Kristalidis gave it to Gentilcore, who then left with the cocaine, the gun, and the shotgun shells removed from the gun.

At trial, Gentilcore testified to further meetings and drug buys from Kristalidis. Defendant objected to the testimony on the basis that he was not a participant in these drug transactions. The court, however, allowed the testimony but admonished the jury that it could not consider the evidence against defendant.

Defendant also objected to Gentilcore’s testimony, after he was asked why he did not test for fingerprints on the bag of cocaine, that “it comes down to a credibility issue. It’s either I am lying or their [sic] telling the truth or vice versa.” Based upon this testimony, defendant moved for a mistrial, alleging that Gentilcore’s statement “shifts the burden upon defendant to testify.” The court denied defendant’s motion.

After the close of the evidence, defendant’s counsel attempted to waive the jury; the court, however, denied defendant’s request, stating, “I think once you have a jury and the jury is here and selected and [has] heard evidence, it’s more appropriate that the case continue to the jury.”

Following closing arguments, the jury found both defendant and Kristalidis guilty of armed violence and delivery of a controlled substance. After the court imposed sentence, defendant appealed.

I

Defendant initially contends that the circuit court erred in refusing to grant a severance. Specifically, defendant maintains that the admission of evidence of other crimes committed by Kristalidis unfairly prejudiced his case and, thus, denied him a fair trial.

As a general rule, defendants who are jointly indicted are to be tried jointly unless a separate trial is necessary to avoid prejudice to one of the defendants. (People v. Bean (1985), 109 Ill. 2d 80, 92, 485 N.E.2d 349.) Two separate grounds exist to justify severance: the first is the confrontation problem which arises when the prosecution attempts to implicate one defendant with the statements of the other defendant; the second is when the defendants’ defenses are so antagonistic that one defendant cannot receive a fair trial when tried jointly. (People v. Byron (1987), 116 Ill. 2d 81, 92, 506 N.E.2d 1247; People v. Olinger (1986), 112 Ill. 2d 324, 346, 493 N.E.2d 579.) There is no automatic right, however, to be tried separately. (Byron, 116 Ill. 2d at 92.) In order to justify a severance, a defendant must demonstrate specifically in his pretrial motion the prejudice complained of; mere apprehensions of prejudice are insufficient. (Byron, 116 Ill. 2d at 92.) Furthermore, the decision to grant a severance is within the sound discretion of the circuit court and will not be reversed absent an abuse of that discretion. Byron, 116 Ill. 2d at 92.

In the instant case, defendant has alleged neither of the traditional forms of prejudice; rather, he has made only general assertions of prejudice resulting from the admission of evidence of crimes committed by Kristalidis. Relying upon People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496, he maintains that the evidence of additional drug buys introduced against Kristalidis in and of itself warranted severance. Defendant avers that this evidence of other crimes was not admissible against him and its admission was therefore highly prejudicial.

Defendant’s reliance on Edwards, however, is misplaced. In Edwards, a single defendant was charged with armed robbery, misdemeanor unlawful use of a weapon, and felony unlawful use of a weapon — which required proof of a prior felony conviction. The defendant moved for a severance of the charge of felony unlawful use of a weapon, contending that the evidence of a prior burglary conviction to support the felony unlawful use of a weapon charge would prejudice him in the trial on the other counts. The court denied his motion. On review, however, the supreme court found that the joinder of the counts created a strong possibility of prejudice to the defendant’s defense of the armed robbery charge and a severance should have been granted. People v. Edwards, 63 Ill. 2d at 140.

In the instant case, the record discloses no confusion and no possibility of prejudice to defendant. The circuit court admonished the jury several times during trial that the evidence admitted against Kristalidis could not be considered against defendant. The court further instructed the jury that it was to give separate consideration to each defendant and that any evidence which was limited to one defendant was not to be considered against the other defendant.

Thus, the circuit court did not abuse its discretion in refusing to grant defendant’s request for a severance. Furthermore, defendant was not prejudiced by the admission of evidence of crimes committed by Kristalidis where it was clear that defendant took no part in those crimes and the court admonished the jury not to consider that evidence against defendant. People v. Harris (1990), 198 Ill. App. 3d 1002, 556 N.E.2d 709.

II

Defendant next contends that the circuit court erred in failing to grant a mistrial after one witness allegedly commented upon defendant’s failure to testify. In response, the prosecution maintains that the witness’ response was neither a direct nor an indirect reference to defendant’s failure to testify.

During cross-examination, Sergeant Gentilcore was asked whether any reports showed that fingerprints appeared on the gun, the shells, or the bag containing cocaine. Gentilcore responded that no reports contained this information. On redirect, Gentilcore provided the following testimony:

“Q. Sergeant, you indicated that the plastic bag was [not] tested for fingerprints, is that correct?
A. That is correct.
Q. Why not?
A. Well, it comes down to a credibility issue. It’s either I am lying or their [sic] telling the truth or vice versa.”

In the instant case, defendant is correct in his assertion that direct reference to a defendant’s decision not to testify violates his fifth amendment rights. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Moreover, a prosecutor’s indirect reference, if it is intended to direct the jury’s attention to a defendant’s failure to testify or the jury “would naturally and necessarily take it to be [a] comment on the defendant’s failure to testify,” violates a defendant’s rights. (United States v. Lyon (7th Cir. 1968), 397 F.2d 505, 509.) Neither of these situations, however, is present in the instant case.

Here, Gentilcore’s statement addressed why he did not think it was necessary to take fingerprints: because he, himself, was a witness to the cocaine sale. His statement did not impugn defendants, either explicitly or implicitly, for failing to testify. Further, it was not the prosecutor who made the allegedly prejudicial statement; rather, it was a witness, responding in a proper manner to the question posed.

Although defendant urges that Gentilcore’s statement addressed his failure to testify, most likely because the reference was to “telling” the truth, he has not offered any authority to support this contention. Moreover, the statement was not made to direct the jury’s attention to defendant’s failure to testify nor would the jury naturally and necessarily take it to be a comment on defendant’s failure to testify. Consequently, the circuit court did not err in refusing to grant defendant’s motion for a mistrial.

Ill

Defendant next contends that the circuit court’s refusal to accept his jury waiver at the conclusion of all the testimony, but before closing arguments, was error. Defendant predicates his demand for a bench trial upon allegedly prejudicial errors committed during the opening statement, upon the denial of a severance, and upon the denial of a mistrial. In response, the prosecution maintains that, where defendant had elected a jury trial before commencement of the trial and all the evidence had been presented to the jury, the court’s decision to deny the motion was proper.

The power to waive a jury trial corresponds to the existence of the right to be tried by a jury. (People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873; People v. Spegal (1955), 5 Ill. 2d 211, 125 N.E.2d 468.) Moreover, the dimension of the constitutionally protected right to a jury trial encompasses the right of an accused to waive trial by jury. (People ex rel. Daley v. Joyce, 126 Ill. 2d at 222.) The issue here, however, is not the defendant’s right to a waiver, but rather the timeliness of his request for a waiver.

In the instant case, defendant had elected a jury trial and all testimony had been heard before defendant attempted to waive the jury. The court, acknowledging that the evidence had already been presented, denied defendant’s motion.

Notwithstanding the late attempt to waive the jury, defendant urges this court to analogize his right to waive a jury with such inviolable rights as the right to remain silent, the right to counsel during custodial interrogations, and the right to plead guilty. Defendant maintains that these rights may be exercised at any point and a defendant does not ever “waive” these rights. Thus, defendant argues, he should be able to exercise his right to waive a jury at any point during trial, even after all the evidence has been presented to the jury.

In support of his contention, defendant relies upon Joyce. The court in Joyce addressed the issue of whether a statute requiring consent by the State to a jury waiver violated the Illinois constitutional provision guaranteeing the right of trial by jury. The Illinois Supreme Court found that the constitutionally protected right to a trial by jury clearly encompassed the right of an accused to waive a trial by jury; thus, the court held that the statute requiring the State’s consent to a jury waiver infringed upon a defendant’s constitutional right. (People ex rel. Daley v. Joyce, 126 Ill. 2d at 222.) The court, however, did not address whether a defendant’s right to a jury trial may be exercised at any point during trial.

Although it is true that section 115—1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—1) does not place any limitation on the time during which a waiver can be made, this court has held, in a case similar to the instant case, that “a limitation is inherent in the language of the statute.” People v. Zemblidge (1982), 104 Ill. App. 3d 654, 656, 432 N.E.2d 1138.

In Zemblidge, the defendant attempted to waive the jury after having requested a jury at the commencement of trial, after all the evidence had been presented, and after the instruction conference had taken place. The trial court denied the defendant’s motion. In affirming the court’s denial of the defendant’s request, the Zemblidge court concluded that,

“once an election for a jury trial is made and testimony begins, defendant has no absolute right to waive the jury. Just as a motion to withdraw a jury waiver is addressed to the sound discretion of the trial court [citation] and considered untimely after commencement of trial [citation], so, too, should a motion to waive the jury after commencement of trial be addressed to the sound discretion of the trial court ***.” People v. Zemblidge, 104 Ill. App. 3d at 656-57.

Despite the clear holding of Zemblidge, defendant attempts to dismiss the case as “pre-Joyce.” The holding in Joyce, however, does not affect the holding in Zemblidge. Zemblidge does not attempt to deny the right to a jury waiver; rather, Zemblidge supports a defendant’s right to a jury waiver unconditionally until trial begins. We agree, however, with the Zemblidge court that a defendant has no automatic right to waive a jury after trial commences, particularly, as in the instant case, after all the evidence had been presented. A jury waiver after commencement of trial is thus addressed to the sound discretion of the circuit court. For the reasons given in part I of this opinion, we reject defendant’s contention that the introduction of the other crimes evidence against Kristalidis necessitated the allowance of defendant’s waiver motion. We conclude that the circuit court did not abuse its discretion in refusing to allow defendant to waive the jury in this case.

IV

Defendant lastly contends that his armed-violence conviction must be reversed because the prosecution did not prove a necessary element of the offense. Specifically, defendant maintains that the prosecution failed to prove that defendant was “armed” with a dangerous weapon during commission of the felony offense. In response, the prosecution contends that, where defendant had on his person a sawed-off shotgun during negotiations for the sale of cocaine, he was armed with a dangerous weapon during the commission of a felony.

The applicable statutes provide that a “person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2.) “A person is considered armed with a dangerous weapon *** when he carries on or about his person *** [a] sawed-off shotgun ***.” Ill. Rev. Stat. 1987, ch. 38, par. 33A—1.

Defendant contends that his conviction for armed violence must be reversed because the shotgun was present only to be sold to Gentilcore and not used during commission of the offense. However, “the mere presence of a weapon of the proscribed character is sufficient; the defendant need not actually use the weapon in the commission of the felony.” (People v. Alejos (1983), 97 Ill. 2d 502, 508, 455 N.E.2d 48; People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.) Although the statute does not require the use of the weapon during commission of the felony, it does require that the person carry the weapon on or about his person or be otherwise armed. People v. King (1987), 155 Ill. App. 3d 363, 369, 507 N.E.2d 1285.

In the instant case, defendant held and examined the sawed-off shotgun during negotiations of the cocaine sale. Further, defendant commented upon the condition of the gun while he was holding it. Notwithstanding defendant’s intention of selling the gun, he clearly had the gun in his possession during the sale of the cocaine; this is enough to put defendant’s actions within the purview of the armed-violence statute.

The purpose of the armed-violence statute is to deter a person who commits a felony offense from using a dangerous weapon. Because the availability of a dangerous weapon enhances the risk that a felony will have deadly consequences, the availability of the weapon is viewed as an aggravating factor which enhances the severity of the predicate felony. (People v. Alejos, 97 Ill. 2d at 508.) Here, the availability and possession of a sawed-off shotgun during the cocaine sale increased the danger of injury or death.

Possession and knowledge are questions of fact for the jury, and such findings will not be set aside on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. (People v. Valentin (1985), 135 Ill. App. 3d 22, 31, 480 N.E.2d 1351.) Here, it cannot be said that the jury’s verdict was against the weight of the evidence; accordingly, the defendant’s conviction will not be reversed.

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

Affirmed.

HARTMAN and COCCIA, JJ., concur.


author: JUSTICE McMORROW

text:
    SAMUEL JOKICH, Plaintiff, v. UNION OIL COMPANY OF CALIFORNIA, Defendant and Third-Party Plaintiff-Appellee (J & V Mechanical Services, Inc., Third-Party Defendant-Appellant; Joseph R. Zborowski et al., Third-Party Defendants).
    First District (4th Division)
    No. 1—89—2915
    Opinion filed May 30, 1991.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge and Martin D. Hoke, of counsel), for appellant.
    Eric Samore, of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Third-party defendant, J & V Mechanical Services, Inc. (J & V), appeals from the entry of summary judgment for defendant/third-party plaintiff Union Oil Company (Union Oil) on count IV of Union Oil’s complaint alleging the breach of a provision in a construction contract requiring J & V to procure insurance in which Union Oil is named as an additional insured. J & V contends that the trial court erred in entering summary judgment for Union Oil because the insurance clause at issue is void and unenforceable as being contrary to Illinois public policy.

In 1982, the parties entered into an agreement pursuant to which J & V was to repair an overhead crane owned by Union Oil located at its Lemont, Illinois, refinery. In the course of making the repairs, Samuel Jokich, a J & V employee, sustained serious injuries when a temporary staircase, provided and owned by Union Oil, collapsed. Jokich filed a complaint against Union Oil charging it with various violations of the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60). Union Oil filed its answer in which it denied all the material allegations of Jokich’s complaint.

Thereafter, Union Oil also filed a third-party complaint against J & V for, inter alia, contribution (count III) and breach of contract for J & V’s failure to procure insurance covering Union Oil’s liability to Jokich (count IV). The record reveals that in its answers to interrogatories, J & V admitted that it directed its insurance broker to add Union Oil as an additional insured on J & V’s comprehensive general liability (CGL) policy. The broker issued to Union Oil a signed “Certificate of Insurance for Contractors” showing Union Oil to be an additional insured under J & V’s CGL policy. However, through some oversight or error, the policy itself did not name Union Oil as an insured.

Union Oil also filed a motion for partial summary judgment on count IV, asserting that no genuine issue of fact existed as to J & V’s contractual duty to obtain CGL insurance protecting Union Oil as an additional insured. J & V opposed the motion, asserting that, under Illinois public policy, the insurance provision in the construction contract was void and unenforceable because it did not clearly and unequivocally state an intention by J & V to insure Union Oil against Union Oil’s own negligence.

Following a hearing, the trial court granted Union Oil’s motion for partial summary judgment on the breach of contract count. Subsequently, the court entered an order requiring J & V to defend Union Oil and to pay any judgment, up to $500,000, entered in the underlying action. The Jokich claim was settled, and pursuant to the court’s order, judgment was entered against J & V in the amount of $220,278, which represented the amount Union Oil had paid in settlement of the claim and its defense costs. This appeal followed.

Opinion

The construction contract clause on which Union Oil based its claim against J & V is contained in paragraph 18 (Insurance). That paragraph provides in pertinent part:

“With respect to the operations performed under or incident to this Agreement, [J & V] further agrees to obtain and maintain insurance acceptable to [Union Oil] which is primary as to any other existing, valid and collectible insurance and except for workers’ compensation, employer’s liability and contractual liability names [Union Oil] as an additional insured ***. Such insurance shall include:
(a) Comprehensive General Liability Insurance covering subcontractors contingent liability, completed operations liability and products liability ***.
* * *
Further, the insurance to be carried shall be in no way limited by any limitations expressed in numbered [paragraph] 17 above nor any limitation placed on the indemnity therein given as a matter of law.
In addition to the above, if the work or any part of it is to be performed in Illinois, all such insurance shall specifically state that it covers the liability of [Union Oil] under the Illinois Structural Work Act.”

Paragraph 17, referred to in paragraph 18, is an indemnification provision. It states, in relevant part:

“[J & V] agrees to protect, indemnify and hold [Union Oil] *** free and harmless from and against any and all claims, demands, and causes of action of all kinds including without limitation, claims of property, injury or death, arising out of or being in any way connected with [J & V’s] performance under this agreement except for matters shown by final judgment to have been caused by the sole negligence of [Union Oil]. The indemnification provided herein shall be effective to the maximum extent permitted by applicable law. [J & V] shall be solely responsible for the defense of any and all claims, demands or suits against [Union Oil] *** including without limitation, claims by any employee of [J & V] *** even tho the claimant may allege wilful misconduct or sole negligence on the part of [Union Oil].”

J & V asserts that the injuries sustained by Jokich were caused by the sole negligence of Union Oil, which owned and provided the wooden stairs that collapsed. J & V further argues that under Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604, a contractual promise to procure insurance to protect another against the protected party’s own negligence, similar to an indemnity agreement, is valid and enforceable only if it clearly, specifically and unequivocally expresses the insuring party’s intent to provide such coverage. J & V contends that the insurance clause at issue in this case does not clearly, specifically and unequivocally express J & V’s intent to procure insurance covering Union Oil’s liability for its own negligence, and is, therefore, void and unenforceable as being contrary to public policy.

In Westinghouse, the court established the rule that an indemnity contract will not be construed as indemnifying a party against its own negligence unless such a construction is required by clear and explicit language or such intention is expressed in unequivocal terms in the indemnity agreement. In 1971, the General Assembly enacted “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1971, ch. 29, par. 61) (the Act). Section 1 of the Act provides:

“With respect to *** construction [contracts,] any *** covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.”

This legislation was aimed at arresting efforts in the construction industry to contractually avoid liability for negligence. The Act was intended to further public policy requiring management in the construction industry to undertake accident prevention measures and to provide safe working conditions on construction sites. Davis v. Commonwealth Edison (1975), 61 Ill. 2d 494, 336 N.E.2d 881.

Section 3 of the Act provides, “[t]his Act does not apply to construction bonds or insurance contracts or agreements.” (Ill. Rev. Stat. 1971, ch. 29, par. 63.) Section 3, like section 1, serves to “protect[ ] the interests of construction workers and members of the general public who may suffer injury through construction or maintenance by preserving supplemental sources of compensation for injured persons, namely insurance and indemnifying and hold-harmless agreements in [insurance contracts and] construction bonds.” (Capua v. W.E. O'Neill Construction Co. (1977), 67 Ill. 2d 255, 260, 367 N.E.2d 669.) Thus, construction insurance contracts or construction bonds containing indemnity agreements protecting one against one’s own negligence are not void under the Act. Capua, 67 Ill. 2d 255, 367 N.E.2d 669.

An agreement in a construction contract to obtain insurance is not an agreement to indemnify prohibited by section 1 of the Act.

“Under an indemnity agreement, the promisor agrees to assume all responsibility and liability for any injuries or damages. Under an agreement to obtain insurance the promisor merely agrees to procure the insurance and pay the premium on it. Once the insurance is obtained, the promisor bears no responsibility in the event of injury or damages, even if the insurer should breach the insurance agreement through no fault of the promisor.” Zettel v. Paschen Construction Contractors, Inc. (1981), 100 Ill. App. 3d 614, 617-18, 427 N.E.2d 189.

Moreover, an agreement to obtain insurance is not a contract of insurance, to which section 3 of the Act is applicable (Zettel, 100 Ill. App. 3d 614, 427 N.E.2d 189). The Zettel court noted, however, that the promisor may be required to assume the liabilities of an insurer if the promisor breaches the agreement to obtain insurance. In Zettel, the contractors’ entitlement to recover all monies for which they could become liable in the injured parties’ underlying suit was not based on the subcontractor’s promise to indemnify but, rather, on the basis of the subcontractor’s breach of the provision in the contract to obtain insurance. While stating that section 3 of the Act was not directly applicable to promises to obtain insurance, the Zettel court reasoned that because the Act permits, for the public policy reasons stated above, a contractor to obtain insurance to cover its liabilities, a promise to obtain insurance is not void as against public policy, whereas a promise to personally indemnify is void in these circumstances.

In Bosio v. Branigar Organization, Inc. (1987), 154 Ill. App. 3d 611, 506 N.E.2d 996, the court construed a provision requiring the contractor to furnish public liability insurance “indemnifying” the owner of the premises. Relying on Zettel, the court stated that the concepts of public liability insurance and indemnity are distinct. The court held that notwithstanding the language used, the agreement was not an indemnity agreement but, rather, a valid agreement to obtain insurance.

Similarly, in St. John v. City of Naperville (1987), 155 Ill. App. 3d 919, 508 N.E.2d 1128, the contract at issue contained an indemnity clause requiring the contractor to indemnify the city from all losses with respect to the construction. The insurance clause required the contractor to secure insurance for contractual liability “equal to” the indemnity provision. The appellate court held that the agreement, like the one in Zettel, was an enforceable promise to obtain insurance, not a promise to personally indemnify the city. In neither of these cases was the Westinghouse rule applied or even discussed. See also Dowling v. Otis Elevator Co. (1989), 192 Ill. App. 3d 1064, 549 N.E.2d 866.

As noted earlier, the Westinghouse rule expressly states that indemnity contracts will not be construed as indemnifying a party against its own negligence absent clear and explicit language to that effect. Citing Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 439 N.E.2d 126, the court in Long v. Bucyrus-Erie Co. (1983), 112 Ill. App. 3d 578, 586, 445 N.E.2d 934, explained that this rule of strict construction was adopted to ensure that a party agreeing to the “extraordinary liability of indemnifying another against his own negligence was fully aware of the extent of his liability.” The Long court observed that passage of section 1 of the Act, expressly prohibiting the enforcement of agreements to indemnify another against the other’s negligence in construction contracts, rendered the Westinghouse rule ineffective with respect to indemnification provisions in the construction industry. Since the language of the court in Westinghouse did not limit the rule to construction industry contracts, the rule remains applicable to indemnity provisions in other types of contracts. Long, 112 Ill. App. 3d 578, 445 N.E.2d 934; see e.g., Allen v. International Harvester Co. (1991), 212 Ill. App. 3d 655.

Because an agreement to obtain insurance is fundamentally different from an agreement to indemnify, and considering the public policy favoring insurance to ensure funds adequate to satisfy claims by injured construction workers, we conclude that the Westinghouse rule, expressly applicable only to indemnification provisions, does not apply to the agreement to procure insurance in the case at bar.

We recognize the existence of some case law stating that the Westinghouse rule remains applicable to agreements to obtain insurance. Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628, on which J & V primarily relies, was an appeal from a jury verdict in a Structural Work Act case. The contractor alleged a breach by the subcontractor of its agreement to carry liability insurance naming the contractor as an additional insured. The Svenson court quoted the Westinghouse rule and then summarily stated, without expressing its reasoning or citing to any other authority:

“Although the instant case involves an agreement to procure insurance ***, we believe the general rule as adopted in Westinghouse remains applicable.” (74 Ill. App. 3d at 88-89.)

The Svenson court then found that the agreement before it did not explicitly require the subcontractor to provide insurance covering the contractor’s own negligence and that no such requirement could be inferred from the facts of the case. Consequently, the court held that the agreement violated Illinois public policy as expressed in Westinghouse. See also Coverdill v. Lurgi Corp. (1986), 146 Ill. App. 3d 112, 496 N.E.2d 1007.

Although we determine that the Westinghouse rule is inapplicable because the insurance clause in the case at bar is neither an indemnity provision nor a contract of insurance but, rather, is a contract to procure insurance, assuming arguendo that the Westinghouse rule were applicable, the provision at issue satisfies the Westinghouse test that the promise to insure be clear, specific and unequivocal. In paragraph 18 of the insurance clause, J & V agreed to obtain and maintain a comprehensive general liability policy naming Union Oil as an additional insured “with respect to operations performed under or incident to” the construction agreement. The paragraph also provided that the insurance to be carried would be “in no way limited by any limitations expressed in numbered [paragraph] 17 [the indemnity provision] nor any limitation placed on the indemnity therein given as a matter of law.” In paragraph 17, J & V agreed to indemnify Union Oil against all claims “except for matters shown by final judgment to have been caused by the sole negligence of [Union Oil].” Since this clause was the only limitation placed upon J & V’s obligation to indemnify Union Oil, the language of paragraph 18 expressly excluding “any limitations” in paragraph 17 can only be construed to mean that the insurance policy would provide coverage for “operations performed under or incident to this Agreement,” including claims arising from Union Oil’s own negligence.

Further, the final clause in paragraph 18 specifically required that the insurance policy state that it covered the liability of Union Oil under the Illinois Structural Work Act. With respect to that clause, J & V argues that this provision is insufficient to impose an obligation to procure insurance protecting Union Oil from its own negligence because liability under the Structural Work Act is absolute and unconditional and does not depend on a showing of negligence by Union Oil. We disagree. In Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 647, 439 N.E.2d 126, the court stated:

“We reject [appellant’s] argument *** that a cause of action can arise under the Structural Work Act from conduct which is less than negligent. Fault of some kind is required although it may range from passive negligence to wilful misconduct.”

Thus, in agreeing to provide coverage for Union Oil’s liability under the Structural Work Act, J & V was agreeing to maintain insurance coverage for negligent conduct by Union Oil.

In addition, although the indemnification clause excepted indemnification for claims arising from Union Oil’s sole negligence, the provision did provide that J & V “shall be solely responsible for the defense of any and all claims, demands or suits against [Union Oil] *** even though the claimant may allege wilful misconduct or sole negligence on the part of [Union Oil].” It is undisputed that irrespective of this provision, J & V did not provide Union Oil with a defense in the underlying action.

Finally, the record reveals that J & V applied for insurance naming Union Oil as an additional insured and produced a certificate issued by the broker showing, albeit mistakenly, that Union Oil was named on the policy. We believe that in addition to the clear language of the agreement, these actions serve as evidence of J & V’s recognition of its obligations under the insurance clause.

In summary, we agree with the trial court’s finding that the insurance clause was clear, unambiguous and enforceable in requiring J & V to procure insurance coverage for liability arising from Union Oil’s own negligence. We further hold that the trial court correctly ruled that J & V breached the agreement at issue and that Union Oil was entitled to summary judgment and damages, including the amount Union Oil paid toward settlement of the claim and the defense costs it incurred in the underlying action.

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

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

       Contained in the record is a copy of answers to interrogatories filed by the third-party defendants, J & V’s insurers and broker, in which they acknowledged that J & V had requested that Union Oil be added as an additional insured on its CGL policy. They further stated that should the court determine that J & V was obligated to procure insurance for Union Oil to protect Union Oil from its own negligence in the suit by Jokich, such coverage would be provided by the insurer.