author: JUSTICE HARTMAN

text:
      In re ESTATE OF ALICE A. KIRCHWEHM, Deceased (Doris J. O’Donnell, Successor Trustee under the Last Will of Harriet McKean, Deceased, Plaintiff-Appellee, v. Ignatius Navicky, a/k/a Ignatius Navicki, a/k/a Enoch Navicky, et al., Defendants (Ignatius Navicky, a/k/a Ignatius Navicki, a/k/a Enoch Navicky, et al., Defendants-Appellants)).
    First District (2nd Division)
    No. 1—90—1635
    Opinion filed March 28, 1991.

      John M. Morroño, P.C., of Palos Heights (John M. Morrone, of counsel), for appellants.
    Shaheen, Lundberg, Callahan & Orr, P.C., of Chicago (Henry N. Novoselsky, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Appellants seek review of the circuit court’s order which approved trustee’s final report and accounting and granted the trustee’s motion for summary judgment regarding Alice Kirchwehm’s (Alice’s) exercised testamentary power of appointment. The issues raised on appeal are whether (1) the language of Alice’s will indicates an intent to exercise her power of appointment in favor of the descendants of the predeceased named beneficiaries, and (2) Alice’s will contains a constructional ambiguity.

Harriet McKean (Harriet) died on December 28, 1972, leaving a will and codicil, later admitted to probate, which provided for the creation of a testamentary trust, naming Melvin Kirchwehm (Melvin) as trustee, and Alice, his wife, as successor trustee, in the event of his death. Through her will, Harriet directed the trustee to pay from the trust any amounts necessary for the support and care of Harriet’s sisters, Ethel Roche (Ethel), Mildred Kramer (Mildred), and Alma Kirchwehm (Alma), during their respective lifetimes. Alma predeceased Harriet.

The codicil provided that upon the death of the last of her sisters, the entire balance of the trust would pass to Melvin, or, if Melvin had died, to Alice. If Alice failed to survive any of Harriet’s sisters, Alice was given the power to appoint, by her own will, the persons who would receive the corpus of the trust estate.

Harriet died. Melvin became and remained trustee until his own death in 1973. Alice thereafter accepted appointment and performed as successor trustee until October 16, 1980, when she was adjudged a disabled person. The circuit court appointed Doris O’Donnell (Doris) as successor trustee, to which the then two surviving trust beneficiaries, Ethel and Mildred, consented. Ethel died childless on December 2, 1983. Mildred, the last of Harriet’s sisters, died childless on January 31, 1989.

Alice died on April 28, 1984. Her will, dated October 15, 1974, and duly admitted to probate, provided in part:

“Fifth: *** Further, under the provisions of Article II, Paragraph D of [the] Will and Codicil [of Harriet McKean] and upon the death of both MILDRED KRAMER and ETHEL ROCHE, I was given the power to appoint by my Will to such persons or entities as I might choose the balance then remaining of the Trust Estate.
In accordance with and in pursuance of such power of appointment and in case I shall predecease said ETHEL ROCHE and MILDRED KRAMER, I appoint the balance of the said Trust Estate, including all accrued and undistributed income derived therefrom to those persons named in Paragraph SIXTH of this, my Last Will and Testament who shall be living at the time of the death of the survivor of MILDRED KRAMER and ETHEL ROCHE, and in the proportions set opposite their respective names, and in case of the death of any of them the then survivors shall take the share or portion otherwise distributable to such decedent in said proportions. [Emphasis added.]
* * *
SIXTH: All the rest, residue and remainder of my estate *** I give, devise and bequeath to the following-named persons in the proportions set opposite their respective names:
ESTELLE JACKSON HALLE —- 20 Per Cent
IGNATIUS NAVICKI — 10 Per Cent
JOSEPH NAVICKI — 10 Per Cent
SYLVIA RUSBASAN — 15 Per Cent
JUNE GRIGONIS — 5 Per Cent
JOAN GRIGONIS — 5 Per Cent
DORIS O’DONNELL — 20 Per Cent
GLORIA WOLFLICK — 10 Per Cent
WILLIAM RUSBASAN — 5 Per Cent
Provided that if any of said persons predecease me, then the share or portion which any such deceased would take if living at the time of my death shall go and be paid over and delivered to the respective lawful issue of any such deceased living at the time of my death, per stirpes-, and if any such deceased shall leave no lawful issue surviving, then the share or portion which any such deceased would take if living at the time of my death shall go and be paid over and delivered proportionately to those of the above-named persons who may be living at the time of my death.”

Joseph Navicki, a/k/a Joseph Navicky, predeceased Mildred, leaving as his surviving lawful issue Joseph Navicky, Jr., Richard Navicky, and Natalie Nicoletti (appellants). Further, Estelle Jackson Halle predeceased Mildred, leaving as her surviving lawful issue Doris and Gloria Wolflick.

When Mildred died, Doris, as successor trustee, sought to distribute the trust corpus in accordance with the appointment made in paragraph fifth of Alice’s will. She proposed that the shares of Joseph Navicky and Estelle Jackson Halle be divided among the named appointees then living according to the proportions opposite their names.

Ignatius Navicky and Joseph Navicky, Jr., thereafter demanded that the children of Joseph Navicky, who predeceased Mildred, take their father’s lapsed share per stirpes. All the other trust beneficiaries approved Doris’ report and proposed distribution.

Doris filed a complaint for construction of Alice’s will and for circuit court approval of her final account on October 13, 1989. A stipulation as to uncontested facts was entered by the parties. Appellants filed a motion for summary judgment, and Doris filed two motions: one for partial summary judgment or summary determination of major issues, and the other for partial summary judgment regarding the interpretation of Alice’s appointment. Doris’ motion for summary determination of major issues was allowed, and the court approved the trustee’s final report. Further, the court granted Doris’ motion for partial summary judgment regarding Alice’s appointment, concluding that the surviving appointees named in paragraph sixth of Alice’s will would share the portions of the two deceased appointees in the stated proportions. The court made a specific finding that there was no just reason to delay enforcement or appeal of the order. This appeal followed.

Appellants first argue that Alice’s will clearly indicates an intent to exercise her power of appointment in favor of the descendants of the named appointees who predeceased Mildred because reference to paragraph sixth, the residual clause, demonstrated an intent to dispose of the trust corpus in the same manner provided for distribution of the residue.

The cardinal rule of will construction, to which all other rules yield, is the ascertainment of a testator’s intention from the will itself. (Vollmer v. McGowan (1951), 409 Ill. 306, 311, 99 N.E.2d 337.) The intention of the testator is determined by perusing the words used in the will for actual meaning before applying rules of construction. Hoge v. Hoge (1959), 17 Ill. 2d 209, 212,161 N.E.2d 117.

The language of Alice’s will indicates that by paragraph fifth she intended to exercise her power of appointment in favor of the nine appointees listed in paragraph sixth; and that those of the nine who were living would share the portions of those listed who had died before Mildred and Ethel had expired. The reference in paragraph fifth to paragraph sixth is for the sole purpose of identifying the specific appointees. Unlike paragraph fifth, paragraph sixth disposes of the residue; the provision for distribution per stirpes applies only to the residual estate.

Appellants argue that paragraph sixth should be deemed to have been incorporated by reference into paragraph fifth of the will. The testator’s intention, however, must be gathered from the will as a whole, giving effect and meaning to each and every clause if possible. (Stites v. Gray (1954), 4 Ill. 2d 510, 513, 123 N.E.2d 483.) Appellants’ proposed construction would render meaningless and ineffective the provision in paragraph fifth establishing the class of named persons and dealing with the death of any of the beneficiaries. Further, the doctrine of incorporation by reference generally involves extrinsic documents and, as such, does not apply here. See In re Estate of Meskimen (1968), 39 Ill. 2d 415, 417, 235 N.E.2d 619.

Appellants also argue that the language in paragraph fifth is confusing and incoherent. They contend that the term “survivors” is ambiguous and that the court ought to change the wording of the paragraph to comport with Alice’s alleged intent.

When the term “survivor” is used in conjunction with a gift to a group or class of beneficiaries, as in this case, under the common law, that term is deemed to indicate the intention of the testator that, should any member of the class predecease the testator, the share of the deceased beneficiary goes to the remaining named members of the class, rather than to the children or issue of the deceased beneficiary. (In re Estate of Carlson (1976), 39 Ill. App. 3d 281, 284, 350 N.E.2d 306; Waugh v. Poiron (1942), 315 Ill. App. 78, 81-82, 42 N.E.2d 138.) In Carlson, the testator, through his will, gave all his property to three named nieces and nephews, “or their survivors or survivor, share and share alike.” (Carlson, 39 Ill. App. 3d at 283.) The court held that this language was not ambiguous; the deceased nephew’s share passed to the surviving niece and nephew and not to the child of the deceased nephew. Carlson, 39 Ill. App. 3d at 285.

Similarly, in the present case, Alice used the language “and in case of the death of any of them the then survivors shall take the share or portion otherwise distributable to such decedent in said proportions.” The term “them” clearly refers to the nine named appointees in paragraph sixth. Further, this disposition is made in a single sentence; the descendants of the named appointees are not mentioned until paragraph sixth. (See Carlson, 39 Ill. App. 3d at 285; Waugh v. Poiron, 315 Ill. App. at 80-81.) Finally, if Alice had intended the property to pass to the descendants of the appointees per stirpes, she could have used the precise language that was employed in paragraph sixth.

Our supreme court has held that “[a] court does not acquire jurisdiction to construe a will merely by allegation that a question requiring construction exists, when the record shows there is no such question.” (Mitchell v. Snyder (1949), 402 Ill. 279, 286, 83 N.E.2d 680.) The language used by Alice in this case is not ambiguous. No utilization of rules of construction to interpret the will is necessary.

Lastly, appellants urge the court to use its “inherent equitable powers” to find in their favor, since to do so would not deprive any of the appointees of their share; it would simply reduce their take by the amount of Joseph Navicky’s share to which they otherwise would be entitled. A court may not distribute the testator’s estate according to the court’s sense of equity and justice, however, rather than the testator’s intent as expressed in the will. Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 1139, 433 N.E.2d 1098.

There is no basis upon which to disturb the circuit court’s order granting summary judgment in Doris’ favor. The presence or absence of an ambiguity in a document is a question of law. (In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 540, 510 N.E.2d 1057, appeal denied (1987), 116 Ill. 2d 555.) When all parties file for summary judgment, the court may decide the issues thus presented as a question of law and the entry of summary judgment for one party or the other is proper. (Bresler, 159 Ill. App. 3d at 540; Comisky v. Farm Dealer Supply, Inc. (1981), 99 Ill. App. 3d 807, 809, 426 N.E.2d 16.) Here, both parties moved for summary judgment, and all the material facts were before the circuit court. The court resolved the question of law in Doris’ favor. Appellants do not allege on appeal that the circuit court misapplied the law; they only raise matters of alleged factual dispute in support of their claim that the court erred in granting Doris’ motion for summary judgment.

From the foregoing it is manifest that no genuine issue of material fact exists; summary judgment was properly entered in Doris’ favor and we must affirm.

Affirmed.

SCARIANO, P.J., and COCCIA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOANNE NASH, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE POLICEMEN’S ANNUITY AND BENEFIT FUND, Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—1904
    Opinion filed March 28, 1991.

      James J. Reidy, Ltd., of Chicago (Margaret M. O’Leary and Richard L. Wattling, of counsel), for appellant.
    David R. Kugler, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Joanne Nash (Joanne), appeals from the dismissal of her complaint for administrative review. She raises as issues for appellate review whether (1) the felony conviction of her husband, a former policeman, terminates her right to the life income or annuity otherwise payable to her pursuant to the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 1—101 et seq.) (Code); (2) the felony conviction termination of his prior “life estate” or annuity operated to accelerate her succeeding “life estate” or annuity; (3) the annuity otherwise payable to her should be segregated and invested at interest to await the outcome of this factual question; and (4) she has standing to bring suit.

Defendant, the Retirement Board of the Policemen’s Annuity and Benefit Fund, City of Chicago (Board), denied Joanne’s claim for the life income earned by her husband, Ronald Nash (Ronald), during his tenure as a Chicago police officer which extended from July 1957 until February 28,1989, when he resigned from the force.

On March 1, 1989, Ronald was a party defendant in a Federal criminal proceeding in which he pled guilty to the commission of felonies relating to or arising out of or in connection with his service as a member of the Chicago police department. Ronald is currently serving a four-year prison sentence in a Texas Federal penitentiary.

On May 23, 1989, Ronald instructed the Board that there would be no withdrawal or repayment of the funds contributed by him toward his retirement annuity. Also on that date, Joanne demanded from the Board the payment of widow’s annuity benefits and claimed entitlement to certain group health benefits. The Board held a hearing on August 29, 1989, and issued its “Findings of Fact” and “Order” on September 29, 1989, wherein it found that Joanne was not Ronald’s widow and that Ronald has no entitlement under the plan which could allow for Joanne’s claim.

Joanne sought administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.) of the Board's decision. The Board moved to dismiss the administrative complaint, alleging that (1) plaintiff was not the proper party plaintiff; (2) plaintiff was the wife of a former Chicago police officer now serving time in Federal prison; and (3) plaintiff and the Board did not share any contractual relationship. That motion was allowed with prejudice, the circuit court ruling that Joanne had no standing to bring suit. Joanne appeals.

I

Joanne asserts that the circuit court erred in concluding that she had no standing to sue. The court ruled that the contract was between Ronald and the Chicago police department and gave no rights to her. Further, the court noted that the statute provided benefits only to a widow and that a living spouse has no benefit entitlement under the Code.

Insisting that she has standing, Joanne claims that this assertion is supported by the fact that the Code makes repeated references to “wives” as well as to widows. A careful reading of the statutory language reveals, however, that when referring to a “wife,” the Code follows with a limitation such as “of a policeman who dies in service” (Ill. Rev. Stat. 1987, ch. 108½, par. 5—146(a)), or “of a policeman who *** dies out of service” (Ill. Rev. Stat. 1987, ch. 108½, pars. 5—146(b), (c), (d)); or to a former wife of a policeman “who has had a judgment of dissolution of marriage from her husband annulled.” (Ill. Rev. Stat. 1987, ch. 108½, par. 5—146(e).) In the two former instances, the policeman “dies,” and in the latter, the policeman and the spouse are no longer married. Joanne fits none of the foregoing categories because Ronald is still alive and she is not his former wife.

Joanne’s reliance upon Bailey v. Retirement Board of Policemen’s Annuity & Benefit Fund (1977), 51 Ill. App. 3d 433, 366 N.E.2d 966, in support of her standing argument also is unavailing. There, a widow sought to claim a widow’s annuity after she unjustifiably shot her husband, a police officer, causing his death six weeks later. None of the situations present in Bailey are implicated in the case at bar. The statutory scheme at issue here specifically contemplates that the fund is to be maintained for the benefit of, inter alia, policemen’s “widows.” (Ill. Rev. Stat. 1987, ch. 108½, par. 5—101.) It makes no provision for benefits to current wives. Joanne is not the widow, but the current wife of a former Chicago police officer, who is ineligible for any benefits under the pension plan. Under these circumstances, she has no standing to claim a widow’s annuity.

Joanne urges that she has standing as a third-party beneficiary to the contract between her husband and the police department. Pensions have been recognized by our courts as contracts. (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 296 N.E.2d 721; Kerner v. State Employees’ Retirement System (1977), 53 Ill. App. 3d 747, 368 N.E.2d 1118.) The legislature has enumerated various conditions which allow or preclude the award of benefits under the contract, however. One such stipulation is that benefits will be denied to an officer convicted of any felony arising out of or in connection with his or her service as a police officer. (Ill. Rev. Stat. 1987, ch. 108½, par. 5—227.) Whether Joanne’s third-party beneficiary theory is viable, insofar as separate payments may have been made by Ronald for her annuity rights, and whether such benefits will be deemed unaffected by Ronald’s felony conviction, must await the event when the pension will have become payable, namely, her widowhood, should Ronald predecease her.

II

Joanne also bases her annuity claim on section 5—138 of the Code, which sets forth the formula for determining a widow’s annuity for all employees who withdraw after age 50. (Ill. Rev. Stat. 1987, ch. 108½, par. 5—138.) She asserts that Ronald fulfilled the criteria for the section, i.e., proper age, length of service and withdrawal. Even if applicable, the statute explicitly provides that the annuity is “payable after the date of the employee’s death.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 108½, par. 5—138.) Under this language, which is neither vague nor ambiguous, Joanne is not entitled to an annuity because Ronald is still alive. Furthermore, section 5 — 138 provides widow annuity benefits only to the extent of the sums standing to the employee’s credits on the date of the actuating event. Since Ronald’s conviction has reduced the crediting sum to a refund of his contribution (see Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, 545, 357 N.E.2d 582), presently there is no sum standing to Ronald’s credit for purposes of computing available benefits.

Ill

Joanne analogizes the statutory provisions of the Code to the creation of a life estate and a succeeding life estate. She maintains that Ronald possessed a life estate in his prospective annuity,, and once his life estate was terminated or destroyed pursuant to section 5—227 of the Code (Ill. Rev. Stat. 1987, ch. 108½, par. 5—227), her succeeding life estate accelerated. She assigns as error the Board’s refusal to acknowledge her succeeding life estate.

In addressing a somewhat similar claim made by a forfeited pensioner’s estate, the appellate court has held that no “estate” was forfeited; rather “only [the] right to continued pension benefits by reason of [the pensioner’s] actions.” (Kerner v. State Employees’ Retirement System, 53 Ill. App. 3d at 754.) Although pension rights have been construed as contractual in nature (Peterson v. Board of Trustees, 54 Ill. 2d at 264-65; Kerner v. State Employees’ Retirement System, 53 Ill. App. 3d at 751), an officer’s right to benefits depends entirely upon the Code which provides for them. Peterson, 54 Ill. 2d at 264.

The legislature could have articulated language to ensure that wives of those convicted of service-related felonies may receive residual benefits under the plan on an accelerated basis, if they are to receive them at all. It has not done so. We must decline Joanne’s invitation to apply common law life estate and acceleration principles to the Code. To do so would be to alter the plain language of the statute in order to facilitate a result patently contrary to the express and unambiguous language of the Code.

In view of the disposition of this appeal upon the bases articulated, other points raised by Joanne need not be considered or decided.

For the foregoing reasons, the decision of the circuit court must be affirmed.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE LINN

text:
    MARION ZEGAR, on her own Behalf and on Behalf of all Other Persons Similarly Situated, Plaintiff-Appellant, v. SEARS ROEBUCK AND COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—1055
    Opinion filed March 28, 1991.
    Rehearing denied April 29, 1991.

      Victor Potysman & Associates, of Chicago (Victor Potysman, of counsel), for appellant.
    Sonnenschein, Nath & Rosenthal, of Chicago (Roger K. Heidenreich and Leslie J. Khoshaba, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Marion Zegar, on her own behalf and as alleged class representative of others similarly situated, filed this action against defendants, Sears Roebuck & Company (Sears) and Allstate Insurance Company (Allstate). Zegar seeks to compel Allstate, Sears’ insurer, to pay medical expense benefits directly to those persons injured on the premises of Sears stores. Zegar relies on certain language in the policy of insurance that she claims authorizes third-party claimants to directly sue the insurer (Allstate) without first receiving a judgment or settlement from the insured (Sears).

Sears is not a party to this action because Zegar has nonsuited her negligence claim against the store. Allstate moved to dismiss the remaining amended count of the complaint against it, arguing that Zegar failed to state a cause of action because the policy prohibits a lawsuit against the insurer before a final judgment or settlement. The trial court agreed with Allstate and dismissed the complaint.

We affirm.

Background

On March 13, 1989, Zegar slipped and fell in a Sears store in Niles, Illinois. According to her complaint, she was injured in the fall because of Sears’ negligence in polishing or waxing its floor. She sought damages against Sears in excess of $15,000 for medical expenses and lost wages.

Zegar joined Allstate as a party defendant, seeking to recover her medical expenses directly from the policy of insurance on the grounds that it “provided medical pay insurance for lawful occupants of Sears who were injured therein.” She alleged that Allstate wrongfully failed to inform her and others similarly situated that they were entitled to these medical expense payments and refused to pay them.

The Allstate policy in issue is a commercial general liability policy. Under the “bodily injury” coverage, Allstate agrees to indemnify Sears for damages Sears may become liable to pay to injured parties. The policy also contains medical expense coverage, the application of which is in issue in the pending lawsuit.

The general liability coverage for bodily injury and property damages provides in part, under “Coverage A”:

“Liability
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies ***.
* * *
Coverage C — Medical Payments
1. Insuring Agreement
a. We will pay medical expenses as described below for ‘bodily injury’ caused by an accident ***.
b. We will make these payments regardless of fault.
These payments will not exceed the applicable limit of insurance. We will pay reasonable expenses for [first aid and necessary medical services, etc.]”

Opinion

The central issue presented in this case is whether Zegar’s claim for medical expense payments under the Allstate insurance policy may be maintained before (or in the absence of) a tort settlement or judgment against the insured, Sears. Another way of stating it is whether the Allstate policy can be read to allow third-party beneficiaries of the medical expenses coverage to maintain a direct action against the insurance company.

In Illinois, direct actions against insurance companies are against public policy. (See, e.g., Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327, 333, 239 N.E.2d 799, 802-03 (Court considered statutory provisions that indicate “a legislative policy against direct actions against insurers before judgment” and concluded that Illinois public policy precludes the use of Illinois courts as the forum for cases under the Wisconsin direct action statute); Richardson v. Economy Fire & Casualty Co. (1985), 109 Ill. 2d 41, 47, 485 N.E.2d 327, 329 (The “public policy of this State prohibits an injured party from recovering personal injury damages against an insurance carrier on account of the negligence of its insured prior to obtaining a judgment against the insured”).) The commonly cited reason behind the policy is to prevent the jury in the personal injury action from becoming aware that the defendant tort-feasor is insured and thereby possibly awarding a larger verdict under the “deep pockets” theory. E.g., Loeber Motors, Inc. v. Sims (1975), 34 Ill. App. 3d 342, 351, 340 N.E.2d 132; see Gianinni v. Bluthart (1971), 132 Ill. App. 2d 454, 460-61, 270 N.E.2d 480.

In the pending case, Zegar attempts to distinguish her claim for medical expense reimbursements from the legal “damages” she may be able to recover from Sears in a negligence action. In other words, her direct action against Allstate does not depend on the resolution of the tort liability of the insured because the policy language states that Allstate will pay medical expenses regardless of “fault.” Zegar maintains that her position is bolstered by the policy’s separate and distinct coverages, for “damages” under Coverage A and for “medical expenses” under Coverage C.

We recognize the distinction between the two concepts, although we believe that “medical expenses” may also be viewed as a component of an injured party’s legal “damages” in a tort action. Apparently, Zegar contends that the bar against direct actions should be limited to the situations in which the insured’s liability to the injured party is in issue. In those cases, the liability issues are first resolved, by settlement or judgment, and only then does the insurance company’s obligation to indemnify its insured ripen. If the insured cannot or does not pay, the judgment creditor may attach the insurance proceeds as an asset of the judgment debtor, in supplemental garnishment or citation proceedings.

The situation before us differs from the above situation because the claimant is not, at the present time, suing Sears in tort. Rather, Zegar’s lawsuit against Allstate attempts to reach the “no-fault” medical expense coverage under a third-party beneficiary theory of contract law. She argues that because the policy expressly distinguishes between (1) “damages” adjudicated by “suit” or settlement and (2) “medical expenses” to be paid regardless of fault, there is no reason to bar her from collecting payment for her medical expenses directly from Allstate in accordance with the policy language.

Allstate counters by citing paragraph 3 of “Section IV — Commercial General Liability Conditions,” which states:

“3. Legal Action Against Us.
No person or organization has a right under this Coverage Part:
a. To join us as a party or otherwise bring us into a ‘suit’ asking for damages from an insured, or
b. To sue us on this Coverage Part unless all of its terms have been fully complied with.
A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial; *** an agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or claimant’s legal representative.”

The trial court agreed with Allstate’s interpretation of the relevant policy provisions and concluded that there was no authorization under the policy for Zegar to directly sue Allstate for medical expenses before the resolutions of her negligence claim against Sears. In reaching this conclusion, the court primarily relied on Loeber Motors, Inc. v. Sims (1975), 34 Ill. App. 3d 342, 340 N.E.2d 132.

In Loeber Motors, a Mercedes Benz owned by plaintiff (Loeber Motors) was damaged when the friend of a prospective purchaser turned the car over during a test drive. Country Mutual, the insurer of the driver, refused payment on various grounds. The litigation included a variety of claims against different parties, but the portion of the case relevant here concerned the viability of that portion of Loeber Motor’s complaint that sought a judgment against Country Mutual for denial of payment under the collision coverage of its policy. Country Mutual argued that the public policy of Illinois barred the injured claimant’s direct action against Country Mutual as insurer of the alleged tort-feasor. The trial court nevertheless entered summary judgment in favor of plaintiff on the coverage issues, and a jury subsequently assessed the amount of damages against the insurer.

On appeal, a majority of the court reversed the judgments entered against Country Mutual pursuant to its collision coverage, agreeing with the insurer that Illinois policy prohibits injured parties from directly suing insurance companies.

In his partial dissent, Justice Simon acknowledged the public policy rationale of Marchlik, but made a distinction between liability insurance and collision insurance. (34 Ill. App. 3d at 353, 340 N.E.2d at 140) (Simon, J., dissenting in part).) Liability insurance requires a determination of liability; that is, the insured’s conduct must be considered negligent before the coverage applies and the injured party must seek damages against the insured before the insured’s duty to pay ripens. In contrast, collision insurance obligates the insurer to compensate the vehicle owner for the loss regardless of whether the insured’s conduct was tortious. According to Justice Simon, because fault is not in issue, there is no danger that the liability of the insured and the liability of the insurer would become intermingled, which is one of the grounds on which the public policy against direct actions against insurers is rationalized. Hence, the injured claimant should not be barred by public policy from maintaining a direct action under the collision coverage.

We have found no Illinois cases since Loeber Motors that have considered this distinction between liability and collision insurance. While we find Justice Simon’s partial dissent well reasoned in many respects, we believe the majority opinion states Illinois law correctly. It is true that the “no-fault” medical expenses coverage, like the collision coverage referred to in Loeber Motors, is distinguishable from general liability coverage in that proof of the insured’s fault is not required. We also recognize that the Coverage A “damages” provision is worded differently from the Coverage C “medical expenses” language. It could be assumed from this, as Zegar urges, that Allstate’s expressed willingness to pay Coverage C without regard to “fault” should obviate the need for Zegar to wait for a trial or settlement on Sears’ liability for negligence damages before receiving Allstate’s payment of her medical expenses. The question that remains, however, is whether it necessarily follows that Zegar is entitled to bring a direct action against Allstate, for her medical expenses alone, outside the context of a lawsuit against Sears.

We do not find that the insurance contract between Sears and Allstate contemplates a direct action against the insurer for an injured party’s medical expenses whenever any person is injured on the insured premises of a Sears store. The medical payments coverage may be viewed as a salutary attempt to allow, but not require, Sears to pay relatively small, easily ascertainable medical reimbursements, without a formal determination of fault. This would allow Sears, as insured, to facilitate settlement of some claims by paying actual medical costs without admitting or contesting liability. In fact, both sides agree that the general purpose of medical payments provisions is to “create a fund for the payment of medical services so that those injured will not necessarily be contemplating how to impose liability upon the insured.” (8A Appleman Insurance, Law and Practice §4902, at 229 (West 1981).) Moreover, absent such a provision allowing the insured to pay medical expenses, the insured would risk waiving its claim for indemnity against the insurer if the insured went ahead and voluntarily assumed payment for the injured party’s medical expenses. See 8A Appleman, §§4900, 4901, at 216-24.

Allstate does not assert that an injured person may never sue it for medical payments under the policy. Its position is that Zegar’s claim for medical payments is premature because she has made a tort claim against Sears. Presumably, Zegar has the option of either pursuing her tort claim against Sears and including her demand for medical expenses in the context of that suit or releasing her tort claim against Sears and then seeking medical expenses from Allstate.

In Loeber Motors (34 Ill. App. 3d at 352, 340 N.E.2d at 139), the court noted, “The injured or damaged party has no contractual relationship with the insurer and has no rights under the policy until and after judgment has been entered in his favor against the policyholder.” We believe that although in some respects Zegar may be viewed as a third-party beneficiary of the contract between the insured and insurer, the coverage provisions of an insurance policy are primarily for the benefit of the contracting parties and only incidentally for injured claimants.

Section IV of Allstate’s policy, which sets forth the “Commercial General Liability Conditions,” illustrates the nature of the contractual rights and duties between insured and insurer. This section requires Sears to notify Allstate of “occurrences” which may result in a claim. The notice must include details of the occurrence and the names and addresses of any injured persons and witnesses. Sears must cooperate in investigating, settling or defending against the claim or “suit” and Sears is not allowed to voluntarily assume any obligation or “incur any expense, other than for first aid, without [Allstate’s] consent.” Claimed medical expenses must be incurred and reported to Allstate within one year of the date of the accident and the injured person must submit to examination. We believe that the fair interpretation of such conditions is that Sears, as the insured on whose premises the injury occurs, has the duty to work with Allstate and the injured party in processing claims and suits. If the injured party does not make a claim, or if Sears resolves a claim on its own without fulfilling the stated conditions, Allstate’s liability never accrues.

Section IV further provides, in paragraph 3, that “no person or organization has a right” to “join [Allstate] as a party or otherwise bring [it] into a ‘suit’ asking for damages from an insured” or to sue Allstate “under this coverage part” (which includes Coverage C medical payments) “unless all of its terms have been fully complied with.”

As the trial court held, this is a “no direct action” clause, the presence of which is consistent with the public policy of this State. In our opinion, nothing in the insurance policy states or strongly suggests that a claimant may maintain a direct action for medical expenses without regard to the resolution or of his or her potential claim against the insured for bodily injuries. We conclude that absent an express or clearly implied right to sue Allstate directly for the medical expenses under Coverage C, Zegar and the alleged class of persons injured at Sears’ stores cannot maintain an action to recover medical expenses directly from Allstate, at least until after a settlement, adjudication, or release of claim against Sears has been secured. E.g., Richard v. Economy Fire & Casualty, 109 Ill. 2d 41, 485 N.E.2d 327; see also Scroggins v. Allstate (1979), 74 Ill. App. 3d 1027, 393 N.E.2d 718.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE JIGANTI JUSTICE JOHNSON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WADE STALLINGS, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—0859
    Opinion filed March 28, 1991.
    Rehearing denied May 6, 1991.

      JOHNSON, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Bruce Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Donna Lambert, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a bench trial, the defendant Wade Stallings was convicted of murder and sentenced to a prison term of 24 years. He contends on appeal that he was not proved guilty beyond a reasonable doubt and that his sixth amendment right to present a defense was violated because essential evidence was destroyed. The defendant also contends that he was prejudiced by the admission of certain hearsay evidence and that the trial court abused its discretion in refusing to grant a continuance.

The defendant was charged with the murder of 81-year-old Constantine Karapanos. The victim was found lying on the floor of his ransacked house on June 11, 1979, and was taken to the hospital where he died two days later. In November of 1986, a fingerprint that had been found at the scene was entered into the police department’s new Automatic Fingerprint Identification System and led to the identification of the defendant. The defendant was arrested in Milwaukee, Wisconsin, on January 6,1987.

Prior to trial, the defendant filed a motion to dismiss the indictment alleging that evidence essential to the defense, including certain X rays and tissue samples from the victim, had been destroyed as a result of the length of time between the crime and the indictment. A report interpreting the X rays showed that CAT scans of the head were negative. At a hearing on the motion, the defendant presented the testimony of Dr. James Hicks. Dr. Hicks testified that he disagreed with the medical examiner’s conclusion that the victim died from craniocerebral injury with subarachnoid hemorrhage and internal abdominal injury with perforation of the intestine and acute peritonitis. According to Dr. Hicks, the head injuries suffered by the victim were superficial and did not contribute to the death. Peritonitis caused by a ruptured or perforated bowel was the cause of death. However, because there was no sign of external trauma to the abdomen, Dr. Hicks concluded that the peritonitis had occurred naturally. He testified that external trauma always accompanies internal injury, and that a microscopic analysis of the victim’s tissue samples could have shown the presence of blood clots or infarction of the bowel. An affidavit from Roy Domes, the administrator of the medical examiner’s office, stated that the victim’s tissue samples were preserved by the office and were subsequently destroyed during, and as part of, the regular tissue sample management procedures.

At the conclusion of the hearing, the trial court denied the defendant’s motion to dismiss on the grounds that he was not prejudiced by the destruction of the X rays and tissue samples.

At trial, the 'victim’s daughter, Helen Karapanos, testified that when she arrived home from work at 5:10 p.m. on June 11, 1979, she found her father lying on the floor of the living room. There were blood splatters on the walls of the front hallway. After alerting her mother, Helen asked her father what had happened. He said that when he entered the vestibule of the building, there were two black men waiting for him. They beat him, forced him to open the door to his apartment, then beat him again and left. A hearsay objection to this testimony was overruled.

Helen told the police that a camera, a typewriter, jewelry and approximately $100 were missing. Her stereo had been taken from the top of her dresser and left on the bed. She had purchased the stereo five years earlier and it had not been out of the apartment since that time. She testified that she did not know the defendant and had never seen him in her home.

Officer Thomas Kelly, an evidence technician, testified that he found a fingerprint on the stereo and lifted the print. Officer Thea-trice Patterson of the latent fingerprint unit testified that prior to 1986 it was necessary to have a suspect’s name in order to search through the master files to match a fingerprint. However, under the new automatic system, “open” or unidentified fingerprints could be submitted for a search. The fingerprint found on the stereo was submitted, and the computer supplied the names of five suspects including the defendant.

Patterson then manually compared the fingerprint found on the stereo with the defendant’s fingerprint. The lifted print was 60% of a full print impression, but Patterson testified that this did not affect the identification. He found 19 points of comparison and charted 10 points to illustrate his trial testimony. Patterson testified in great detail as to the points of comparison and concluded that the fingerprint found on the stereo was the defendant’s fingerprint. Patterson testified that one unexplained dissimilarity would void the identification but that he observed no such dissimilarities.

Dr. Tae An, an assistant Cook County medical examiner, testified that he performed an autopsy on the victim on June 13, 1979. The victim had two black eyes and multiple bruises and abrasions on the face and head. Dr. An detected a subarachnoid hemorrhage, several rib fractures and a perforated small intestine. He determined the cause of death to be craniocerebral injury with subarachnoid hemorrhage, and an internal abdominal injury with perforation of the intestine and acute peritonitis. Dr. An observed no adhesions, infarction or strangulation of the intestine which would indicate that the peritonitis occurred naturally. He stated that internal trauma is not necessarily characterized by visible external injury. He concluded that the intestinal perforation was caused by a blow to the abdomen.

Dr. An had read the police reports before performing the autopsy and knew the victim had been beaten. The medical reports showed that the X rays and CAT scan, which were taken to show possible fracture or hemorrhaging, were negative. The reports indicated that the victim had gotten out of bed several times in the hospital and had to be restrained. According to Dr. An, a microscopic examination of the tissue samples was unnecessary because the examination of the victim showed that the peritonitis did not occur naturally. On cross-examination, he stated that the peritonitis was the main cause of death and that the head injury contributed to the death by causing stress to the body.

The defendant presented the testimony of Sergeant Porter, who interviewed Helen Karapanos on the day of the victim’s funeral. According to Porter, Helen said that her father was disoriented and unable to tell her what happened.

The defendant testified that he was 16 years old at the time of the incident and worked at odd jobs such as painting and exterminating in the vicinity of the victim’s house. He could not recall ever being in the victim’s apartment and denied hitting or robbing the victim.

Defense counsel then informed the court that the next witness, Dr. James Hicks, was not in court and would not be able to testify until sometime after February 15, 1988. This would have caused a two- to three-week delay in the trial. The court, noting that the matter had been pending for a very long time and that it had instructed the defendant to have all of his witnesses present that day, denied the continuance.

At a hearing on the defendant’s motion for a new trial, the court stated that the victim’s statement to his daughter when she found him was not relevant to the defendant’s guilt and was disregarded by the court.

The defendant first contends that he was not proved guilty beyond a reasonable doubt. Specifically, he argues that Dr. An’s testimony was insufficient to prove that the victim’s death was caused by criminal activity, that the fingerprint evidence was insufficient to establish that the defendant was the offender, and that there was no evidence linking the burglary to the victim’s injuries.

In support of his argument, the defendant cites People v. Bentley (1980), 87 Ill. App. 3d 1033, 409 N.E.2d 530, for the proposition that where the only evidence supporting a conviction is circumstantial, the guilt of the accused must be so thoroughly established as to exclude every reasonable hypothesis of innocence. However, in People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, the Illinois Supreme Court recently held that reasonable doubt is the test which should be applied in reviewing the sufficiency of the evidence in all criminal cases regardless of whether the evidence is direct or circumstantial. The reasonable hypothesis of innocence standard is no longer viable. Furthermore, the judgment will not be disturbed unless the evidence, viewed in the light most favorable to the prosecution, is such that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

The defendant’s first argument concerning the sufficiency of the evidence is that Dr. An’s testimony did not establish that the acute peritonitis which caused the victim’s death resulted from criminal activity rather than from natural causes. In making this argument, he relies upon the testimony of Dr. James Hicks at the hearing on the motion to dismiss that internal abdominal injury could not have occurred in the absence of visible external injury to the abdomen. The defendant notes that the victim’s tissue samples, which could have established that the victim’s peritonitis resulted from natural causes, had been destroyed by the hospital in the course of its regular procedures.

To prove murder, the State must establish beyond a reasonable doubt that the death was caused by criminal activity. (People v. Brackett (1986), 144 Ill. App. 3d 442, 446, 494 N.E.2d 610, aff’d (1987), 117 Ill. 2d 170, 510 N.E.2d 877.) The court in Brackett stated that the adequacy of such evidence depends upon the autopsy, the defendant’s acts related to the victim’s physical condition at death and the explanation of the reasons underlying the cause of death. Brackett, 144 Ill. App. 3d at 447, 494 N.E.2d at 613.

Dr. An testified that the autopsy he performed showed that the victim died primarily from acute peritonitis and that the head injury contributed to the death by adding stress to the body. He testified that the autopsy revealed no evidence of adhesions, infarction or strangulation of the intestine which would indicate that the peritonitis occurred naturally. Dr. An therefore concluded that the peritonitis was caused by trauma to the abdomen. He explained that such internal injury could occur even in the absence of visible external injury to the abdomen. Although Dr. An’s testimony conflicted with that of Dr. Hicks in this regard, we believe that his opinion was supported by fact and reason and constituted a sufficient basis for the trial court’s conclusion that the victim died as a result of criminal activity rather than from natural causes.

The second argument made by the defendant concerning the sufficiency of the evidence is that the fingerprint evidence was insufficient to establish his identity as the offender. The defendant maintains that the testimony of the fingerprint expert, Officer Theatrice Patterson, lacked credibility and that the evidence did not exclude the possibility that the fingerprint could have been left on the stereo at some other time.

In our view, the record fully supports the trial court’s determination that Officer Patterson’s testimony established beyond a reasonable doubt that the fingerprint left on the stereo belonged to the defendant. Patterson’s testimony was detailed, convincing and unshaken by cross-examination. Although the defendant asserts in his brief that Patterson admitted that another expert “would probably disagree” with his explanations, the record fails to support this assertion. Furthermore, Helen Karapanos testified that she purchased the stereo five years earlier and that it remained in her room since that time. The defendant suggests that because he testified that he did odd jobs in the victim’s neighborhood, it was reasonable to conclude that he was in the victim’s apartment at some time prior to the offense and that the fingerprint was impressed at that time. The defendant, however, testified that he did not recall ever being in the victim’s apartment. We believe the defendant’s suggestion is too speculative to create a reasonable doubt of guilt.

Finally, the defendant maintains that the evidence was insufficient to establish that the victim’s injuries were inflicted by the same persons who committed the burglary. The defendant suggests that the victim could have been beaten by a second group of burglars, that the burglary could have occurred earlier in the day and the victim could have fallen down the stairs upon discovering it, or that the victim could have gotten into a fight with a friend or neighbor after the burglary. The evidence presented at trial established that the victim’s daughter found the victim lying on the floor of the apartment, which had been ransacked. The clear and reasonable inference from this is that he had been beaten by the person or persons who had committed the burglary. The defendant’s suggestions constitute nothing more than speculation and are insufficient to create a reasonable doubt of guilt.

The defendant next contends that his sixth amendment right to present a defense was violated because essential evidence in the form of X rays and tissue samples had been destroyed. Hospital reports, however, showed that the X rays were negative. Because these reports were available and favorable to' the defense, the destruction of the X rays did not prejudice the defendant. The defendant maintains that the destruction of the tissue samples was prejudicial to him because a microscopic examination of the samples might have shown that the victim’s peritonitis occurred naturally.

Where the State fails to disclose to the defendant material exculpatory evidence, the good or bad faith of the State is irrelevant. (Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97.) However, “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood (1988), 488 U.S. 51, 57, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337.) Unless a defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process. Arizona v. Youngblood, 488 U.S. 51,102 L. Ed. 2d 281, 109 S. Ct. 333.

In the case at bar, the best that can be said is that a microscopic examination of the tissue samples might have shown that the victim’s peritonitis resulted from natural causes. However, there is no indication whatsoever that bad faith played a part in the failure to preserve the tissue samples. An affidavit from the administrator of the medical examiner’s office stated that the samples were initially preserved, but later destroyed as a part of regular tissue management procedures. The defendant has thus failed to show that a violation of his constitutional rights occurred.

The defendant next contends that the trial court erred in allowing the State to introduce testimony of the victim’s statement to his daughter when she found him. He claims that the statement constitutes hearsay and does not fall into the excited utterance exception. Although the trial court overruled the defendant’s objection to the testimony in question, it later stated that the testimony was irrelevant and that the court did not consider it in reaching its determination of guilt. Even absent the victim’s statement, the evidence is sufficient to sustain the defendant’s conviction. Accordingly, we believe that even if we were to accept the defendant’s argument that the statement was hearsay, he has not established prejudice.

The defendant’s final contention is that the trial court abused its discretion in refusing to grant him a continuance to secure the presence of Dr. James Hicks. Dr. Hicks had previously testified at a hearing on the defendant’s motion to suppress the indictment. Essentially he stated that in his opinion, the victim’s peritonitis resulted from natural causes. The court denied the request for a continuance, but stated that it would read the transcript of Dr. Hicks’ earlier testimony.

The grant or denial of a continuance rests within the sound discretion of the circuit court, and its ruling will not be disturbed on review absent a clear abuse of that discretion. (People v. Sargent (1989), 184 Ill. App. 3d 1016, 1022, 540 N.E.2d 981.) A defendant seeking a continuance to secure the presence of a witness must make an offer of proof of that witness’ proposed testimony. (People v. Sargent, 184 Ill. App. 3d 1016, 540 N.E.2d 981.) In making an offer of proof, the defendant must explicitly state what the proffered testimony would reveal and not merely allude to what might be divulged by the testimony. People v. Sargent, 184 Ill. App. 3d 1016, 540 N.E.2d 981.

The defendant in the case at bar stated that it was necessary to have Dr. Hicks testify at trial to rebut the testimony of Dr. An. Although the defendant states in his brief that a reading of Dr. Hicks’ earlier testimony was insufficient, neither in his brief nor in his argument to the trial court did he explain why it was insufficient or what specific testimony would be offered to rebut Dr. An’s testimony. Under these circumstances, we do not believe that the trial court’s denial of a continuance constituted an abuse of discretion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

LINN, J., concurs.

JUSTICE JOHNSON,

dissenting:

I respectfully dissent. I find that defendant’s constitutional right to due process was violated because the People failed to prove defendant guilty of murder beyond a reasonable doubt. I find that defendant was not proved guilty beyond a reasonable doubt because the fingerprint evidence was insufficient to link him to this crime.

“[I]t is not for the defendant to establish his innocence, but for the People to establish his guilt.” (People v. Benson (1960), 19 Ill. 2d 50, 61.) In People v. Weinstein (1966), 35 Ill. 2d 467, the Illinois Supreme Court held:

“It is a fundamental doctrine of our system of criminal jurisprudence that the law presumes the innocence of an accused until he is proved guilty beyond a reasonable doubt. [Citations.] The presumption is ‘founded on the first principles of justice, and is intended, not to protect the guilty, but to prevent, so far as human agencies can, the conviction of an innocent person.’ [Citation.] Equally basic is the rule of law that the burden is on the prosecution to prove beyond a reasonable doubt the commission of the crime charged and to establish by the same degree of proof the perpetration of the crime by the person accused; that is to say, the prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime. [Citations.] The burden of such proof never shifts to the accused, but remains the responsibility of the prosecution throughout the trial.” Weinstein, 35 Ill. 2d at 469-70.

See People v. Brown (1978), 57 Ill. App. 3d 528, 531.

Defendant has correctly noted that fingerprint evidence is circumstantial evidence. (People v. King (1985), 135 Ill. App. 3d 152, 155.) Our supreme court has held that in order to justify a conviction based upon circumstantial evidence, “circumstantial evidence must be of such a nature as to produce a reasonable and moral certainty that the accused committed the crime.” People v. Magnafichi (1956), 9 Ill. 2d 169, 173; People v. Ware (1980), 82 Ill. App. 3d 297, 303.

Our supreme court also made the following mandate with respect to the sufficiency of fingerprint evidence:

“In order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed.” (Emphasis added.) People v. Rhodes (1981), 85 Ill. 2d 241, 249.

See People v. Taylor (1965), 32 Ill. 2d 165, 168.

In the instant case, the People failed to establish beyond a reasonable doubt that the fingerprint found on the stereo either belonged to defendant or that it was impressed at the time of the crime. The People claim they established beyond a reasonable doubt that the fingerprint belonged to defendant. However, the record shows that there was a reasonable doubt as to whether the fingerprint belonged to defendant. Mr. Theatrice Patterson, a fingerprint technician, testified that he manually compared the fingerprint found on the stereo with defendant’s fingerprint. The print taken from the stereo was 60% of a full fingerprint impression. Mr. Patterson, however, testified that this did not affect the identification. He also testified that he found 19 points of comparison when he matched the latent print with a set of prints belonging to defendant. Mr. Patterson charted 10 of these points during his testimony. He testified in detail as to these points of comparison and concluded that the fingerprint found on defendant’s stereo was defendant’s fingerprint. Yet, he conceded that one unexplained dissimilarity would void a match. During cross-examination, Mr. Patterson admitted that another expert would probably disagree with his findings. He mentioned several apparent dissimilarities between the fingerprints found on the stereo and defendant’s fingerprints. These differences could not be visually detected by the trial court.

The People also maintain that they established beyond a reasonable doubt that the latent print found on the stereo was impressed at the time of the crime. Even if the fingerprint belonged to defendant, the fingerprint was not found “under such circumstances as to establish beyond a reasonable doubt that [it] [was] impressed [by defendant during] the [commission of the] crime.” (People v. Rhodes, 85 Ill. 2d 241, 249.) During cross-examination, Mr. Patterson acknowledged that he did not know the age of the fingerprint. Since Mr. Patterson could not determine when the fingerprint was impressed upon the stereo, the fingerprint could have been impressed at any time.

The People’s position that they established beyond a reasonable doubt that the print was impressed during the crime is also unsupported by the facts of the case. If the print had been impressed during the commission of the crime, it would indicate that the assailant was not wearing gloves. If the perpetrator did not wear gloves, more fingerprints should have been found. The victim’s daughter testified that the stereo was moved from the dresser to the bed during the commission of the crime. Therefore, there should have been more than one fingerprint on the stereo. In addition, the evidence technician, Mr. Kelly, testified that he dusted several items for fingerprints on the day the crime occurred. Therefore, if defendant touched the stereo while committing the crime, other fingerprints belonging to defendant should have been found on other surfaces, such as bannisters and doorknobs, in the residence.

The case at bar is analogous to People v. Ware (1980), 82 Ill. App. 3d 297, and the standard enunciated in Ware should have been applied to the case at bar. In Ware, the victim was killed between 9:30 and 10:30 p.m. The only evidence leading to the defendant’s guilt was his fingerprint left on a glass in the decedent’s apartment after 3:30 p.m. (Ware, 82 Ill. App. 3d at 300, 304), and the testimony of a neighbor that the defendant was near the scene of the crime between 8:30 and 9:30 p.m. (Ware, 82 Ill. App. 3d at 302). This court concluded that the fingerprint evidence showed only that the defendant could have been in the apartment at the time of the murder, but that the evidence did not exclude the possibility that the defendant was in the decedent’s home earlier during the day and left before the crimes were committed. (Ware, 82 Ill. App. 3d at 305.) The court then reversed the defendant’s murder conviction, holding that since the evidence did not exclude the possibility that the defendant’s fingerprint may have been impressed at a time unrelated to the crime, the People did not establish the defendant’s guilt beyond a reasonable doubt. Ware, 82 Ill. App. 3d at 305.

I find the evidence of defendant’s guilt in the instant case insufficient to support his conviction. The evidence adduced does not show with a reasonable and moral certainty that defendant committed murder. (See Ware (1980), 82 Ill. App. 3d 297, 303.) Before his death, the victim stated that two black men forced their way into his home after attacking him. There was no description of the assailants and no competent evidence of a time frame diming which the crime was committed. The People have failed to establish beyond a reasonable doubt that the fingerprint impressed upon the stereo belonged to defendant and that the fingerprint was impressed at the time of the crime. The aforementioned statement by the victim, coupled with a lone fingerprint, does not substantiate proof of defendant’s guilt beyond a reasonable doubt. It is more likely that the single fingerprint was impressed at some other time. Defendant testified that he performed odd jobs in various houses in the neighborhood where the decedent resided, but, after eight years, he could not remember being in the decedent’s home. Such an activity could reasonably explain defendant’s fingerprint being on the stereo.

While I recognize that it is the function of the trial court to determine the inferences to be drawn from the evidence, the credibility of witnesses, and the weight to be given to their testimony (Ware, 82 Ill. App. 3d at 303), for the aforementioned reasons I find that the People have not met their burden of proof, and a reasonable doubt of defendant’s guilt remains.

I would reverse the trial court.


text:
      In re MARRIAGE OF KOENIG (Krista Marie Koenig, by and through her Mother, Shirley Jewel Koenig, Petitioner-Appellant, v. Harold Joseph Koenig et al., Respondents-Appellees).
    First District (2nd Division)
    Nos. 1—89—3325, 1—90—0668 cons.
    Opinion filed March 28, 1991.

      Allan W. Masters, of Chicago (Mary Ellen Dienes, of counsel), for appellant.
    Schiller, DuCanto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellee Harold Joseph Koenig.
    Marc R. Kadish, of Chicago, for appellee Donald Tegeler.
   JUSTICE HARTMAN

delivered the opinion of the court:

Petitioner, Shirley Jewel Koenig (Shirley), appeals from the circuit court's dismissal of her petition seeking a paternity declaration affecting both respondents. The circuit court dismissed her petition as to respondent Donald Tegeler (Donald) on December 2, 1989, and dismissed her petition as to respondent Harold Joseph Koenig (Harold) on February 21, 1990. Timely appeals were taken from both orders, which have been consolidated.

We are asked to consider whether the circuit court erred in dismissing the petition to establish parentage, purporting to be brought on behalf of the minor child, Krista Marie Koenig (Krista), because the child's mother, Shirley, lacked standing to bring it. For reasons later stated, we affirm.

Shirley and Harold were married on September 29, 1984. One daughter, Krista, was born on March 17, 1985. On October 28, 1985, Harold petitioned for dissolution of marriage, charging Shirley with various acts of extreme and repeated mental cruelty and questioning his role in Krista’s parentage. Shirley denied the charges and the challenge to Krista’s paternal parentage in an answer filed November 18, 1985. She filed a counterpetition for dissolution in which she repeatedly referred to Krista as Harold and Shirley’s baby.

Shirley later withdrew her counterpetition, and the circuit court entered an agreed judgment of dissolution in the nature of a default matter on April 28, 1986. The judgment incorporated a dissolution settlement reached and signed by Harold and Shirley. That agreement found that “one child was born to this marriage,” naming Krista. It further provided that Harold “shall have the sole permanent care, custody, control and education” of Krista. The judgment stated that “one child was born to the parties, namely: KRISTA MARIE KOENIG, *** [on] March 17, 1985.” The judgment gave Harold sole permanent custody of Krista. Shirley was granted visitation rights. A certified copy of Krista’s birth certificate, showing Harold as Krista’s father, was filed in the course of later proceedings.

During the next three years, both Harold and Shirley filed various papers in the circuit court alleging that the other was mistreating Krista, culminating in Harold’s filing of an “emergency petition for injunctive and other relief,” seeking the suspension of Shirley’s visitation rights and the appointment of an attorney to act in Krista’s best interests.

On March 8, 1989, Shirley filed a petition for a rule to show cause and a petition to declare the parentage of Krista. Count I of the petition sought, among other things, enforcement of Shirley’s visitation rights and a change of Krista’s custody to Shirley. In count II, as Krista’s “natural guardian,” she sought on the child’s behalf a declaration of parentage pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.) (Parentage Act). Shirley claimed that, at the time she married Harold, she was pregnant as a result of sexual intercourse with Donald in July 1984. Shirley alleged that she had had no sexual relations with Harold before their marriage in September of 1984.

The circuit court appointed Joel Schaps to serve as Krista’s attorney on March 10, 1989, and his appearance was filed on March 31, 1989. Schaps also has been referred to as Krista’s guardian ad litem by the court and the parties; however, no formal appointment to that effect appears in the record.

Donald moved to strike the petition to declare paternity, arguing that (1) the dissolution of marriage agreement, signed by both Shirley and Harold, acknowledged that Krista was born to both parties and constituted a binding admission on Shirley’s part; (2) Krista’s birth certificate was signed by Shirley, designating Harold as the natural father; and (3) the action was time barred under section 8 of the Parentage Act because it was filed more than two years after Shirley admitted having knowledge of the relevant facts relating to the issue of paternity. Shirley’s response claimed, among other things, that (1) Krista was not a party to the divorce action and was entitled to have the issue of paternity resolved; (2) the two-year limitation period provided by section 8 of the Parentage Act did not apply and could not be raised by Donald in any event; and (3) Shirley had standing to bring this action as Krista’s natural guardian. The circuit court granted Donald’s motion to strike the paternity petition following a hearing on November 2, 1989. The court questioned whether it was in Krista’s best interest to be told at that point in time that Harold was not her father, but that Donald, a total stranger to her, was her father. Turning to the legal issue, the court ruled that under the law Shirley did not have standing to raise the paternity issue.

Harold evidently filed, with leave of court, an amended response to Shirley’s petition, adopting Donald’s arguments. At the subsequent hearing on the motion, the circuit court struck the paternity action, again finding that Shirley lacked the standing to bring such an action on the minor child’s behalf.

Shirley appeals from both dismissal orders.

I

Shirley identifies circuit court error in its having determined that she lacked standing to file the petition questioning paternity on Krista’s behalf.

In support of her argument, Shirley urges that a “dismissal of the petition was not in the child’s best interests because it deprived the child of a forum in which to establish parentage.” Section 7(b) of the Parentage Act provides, in part, that “[a]n action to declare the non-existence of the parent and child relationship may be brought by the child, the natural mother or a man presumed to be the father.” (Ill. Rev. Stat. 1987, ch. 40, par. 2507(b).) Absent her judicial admission as to Harold’s paternity (see State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718), Shirley might have challenged the existence of a parent and child relationship between Harold and Krista on her own behalf, without involving Krista. She brought no action. Section 8 of the Parentage Act, with its two-year limitation provision (Ill. Rev. Stat. 1987, ch. 40, par. 2508) might also have played a part in Shirley’s inaction. In refraining from having this matter resolved, Shirley has permitted four years to elapse, resulting in the establishment of a concomitant relational development between Harold and Krista, together with his ongoing financial support for the child. The circuit court was faced with the choice of either allowing Donald, a stranger, who disclaimed parenthood and wanted nothing to do with Krista, to be named Krista’s father, or permitting Harold to continue his role as Krista’s supportive father and primary caretaker from her first year of existence, to which the parties had agreed years before. Under these circumstances the circuit court understandably challenged Shirley’s insistence that Krista’s best interests were involved in this controversy.

II

Shirley disputes the existence of any legal basis upon which to support the circuit court’s conclusion that she lacked standing to file the petition on Krista’s behalf. The Parentage Act also provides that “[i]f any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court.” (Ill. Rev. Stat. 1987, ch. 40, par. 2507(c).) The legislature has thereby limited a minor child’s representative to either his or her general guardian or court appointed guardian ad litem. Although the Act does not itself define “general guardian,” similar statutory provisions have been defined as “the guardian of the person, or of all the property of the ward” and, absent appointment by the court, does not include a minor’s natural mother (Shearer v. Coats (S.D. 1989), 434 N.W.2d 596, 598); “one appointed by the Supreme, or Surrogate’s Court” (In re McGuire’s Estate (1921), 115 Misc. 84, 189 N.Y.S. 62, 63); and “one who has the general care and control of the person and estate of his ward” (Black’s Law Dictionary 635 (5th ed. 1979)). In the case sub judice, Shirley does not qualify as Krista’s general guardian because Harold was given “the sole permanent care, custody, control and education of the minor child” in the couple’s divorce settlement and agreed judgment. Nor was Shirley appointed Krista’s guardian ad litem. Under the statutory language and circumstances of this case, Shirley lacks standing to bring the paternity petition on Krista’s behalf.

Further support for this conclusion can be found in In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97. There, the child’s mother and father were granted a dissolution by the circuit court, which reserved the issue of child custody. Several months later, the mother moved for summary judgment, alleging that the father was not the child’s biological father. On appeal of the circuit court’s order granting custody to the father, the mother argued that her action should be construed as one brought on behalf of the child, within the meaning of the Act. The appellate court noted that the mother “seeks to deprive the child of the only father he has known, thereby depriving [him] of a source of financial and emotional support” and refused to hold such actions to be “on the child’s behalf.” (In re Marriage of Ingram, 176 Ill. App. 3d at 418. See also McDonald v. McGowan (1987), 163 Ill. App. 3d 697, 516 N.E.2d 934 (court properly dismissed paternity action brought on behalf of minor child because petitioner was neither the child’s general guardian nor guardian ad litem and his interests conflicted with those of the minor).) Shirley, here, attempts to do the very same thing.

Shirley also argues that Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609, controls this issue because the supreme court there upheld a paternity action virtually identical to that at issue here. Simcox, however, is factually distinguishable from the instant case because the petitioner there was the child’s mother and custodial parent. Here, Shirley does not have custody of Krista. Simcox, therefore, does not address the issue presented here.

Ill

Shirley also claims error in the circuit court’s failure to appoint a guardian ad litem for Krista. At bar, the court appointed Schaps to serve as Krista’s attorney; however, at various times during the proceedings, the court referred to Schaps as the child’s “guardian.” The order which appointed Schaps to the action used the word “attorney,” and Schaps filed his appearance as the child’s attorney. Nevertheless, Schaps’ role as attorney rather than guardian ad litem in this matter is one which expands the protection given to a child. The Historical and Practice Notes to section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 506), which authorizes the appointment of an attorney for the child, observe:

“The importance of providing children with their own attorneys in family litigations was stressed in Smith v. Organization of Foster Families, 97 S. Ct. 2094, 53 L. Ed. 2d 14, 431 U.S. 816 (1977). In Smith, which involved a challenge to the New York State procedures for removal of foster children, the Supreme Court observed that parents do not necessarily speak for the child:
[A]ll contend that the position they advocate is most in accord with the rights and interest of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the Court could have the benefit of an independent advocate for the welfare [emphasis in original] of the children, unprejudiced by the possibly conflicting interests and desires of the other parties.” (Emphasis added.) (Ill. Ann. Stat., ch. 40, par. 506, Historical & Practice Notes, at 631 (Smith-Hurd 1980).)

It is true that under certain circumstances, the circuit court has an obligation to appoint a guardian ad litem, particularly when a minor is without proper representation (see Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 685, 530 N.E.2d 66; McDonald v. McGowan, 163 Ill. App. 3d at 700; Roth v. Roth (1977), 52 Ill. App. 3d 220, 226, 367 N.E.2d 442); however, a guardian ad litem need not be appointed in every case and is not mandatory. Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 788, 541 N.E.2d 1159.

At bar, Krista’s custodial parent asked the court to appoint an attorney to act in the child’s best interests. Schaps filed an appearance. He attended some hearings, but never joined or intervened in Shirley’s petition to declare paternity, although he had the authority to do so. His failure to involve Krista could well have been construed by the circuit court as acting in the child’s best interests because a determination of a child’s biological father through a paternity action is not always in the child’s best interest. (In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 823, 558 N.E.2d 1355.) Under the facts present in the case at bar, Krista’s interests were adequately protected so as not to necessitate the additional appointment of a guardian ad litem, especially in view of the fact that the child already was represented by an appointed attorney.

For the foregoing reasons, the judgment of the circuit court must be affirmed.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.

      At oral argument, Shirley’s counsel represented that a petition for change of custody, necessarily involving Krista’s best interests, is presently pending in the circuit court.