author: JUSTICE McNAMARA

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, Plaintiff-Appellant, v. BOOTH/HANSEN ASSOCIATES, LTD., et al., Defendants-Appellees (Horn Chen et al., Defendants).
    First District (6th Division)
    Nos. 1—88—0982, 1 — 88—2038 cons.
    Opinion filed July 28, 1989.

      Regas, Frezados & Harp, of Chicago (Peter G. Frezados, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Robert W. Smyth, Jr., Michael A. Pollard, and Corinne Seither, of counsel), for appellee Burton-Lipman Company.
    Rothschild, Barry & Myers, of Chicago (Norman J. Barry and Daniel Cummings, of counsel), for appellee Thatcher Engineering Corporation.
    Greenberger, Krauss & Jacobs, of Chicago, for appellee Booth/Hansen Associates, Ltd.
    Cassiday, Schade & Gloor, of Chicago (Bradford D. Roth, Michael J. Gallagher, and Joseph A. Giannelli, of counsel), for appellee Lindahl Brothers, Inc.
    Brinton & Bollinger, of Chicago (David R. Barry, Jr., and Kimberly A. Baker, of counsel), for appellee Caisson Corporation.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, American National Bank and Trust Company of Chicago, as trustee, filed suit for damages caused to its building allegedly resulting from the negligent excavation of property located next to the building. Plaintiff now appeals from a trial court order entering summary judgment for defendants Booth/Hansen Associates, Ltd. (architect), Thatcher Engineering Corporation (engineer), Burton-Lip-man Company (general contractor), and Caisson Corporation (excavator), and from an order dismissing the action against defendant Lindahl Bros., Inc. (excavator), for untimely filing under the relevant two-year statute of limitations. Counts against defendants Horn Chen, Benjamin Steiner and 320 North Michigan Corporation (owners) are pending in the trial court and are not involved in this appeal.

In 1981, defendants began excavating the premises at 320 North Michigan Avenue in Chicago. Plaintiff’s building on the adjacent property subsequently sank and was damaged. In February 1982, plaintiff learned the cause of this damage.

Over two years later, on April 27, 1984, plaintiff filed a complaint, alleging that the construction-related defendants negligently failed to safeguard plaintiff’s property before excavating, negligently removed the earth supporting plaintiff’s building, and negligently failed to support the foundation of plaintiff’s building during construction.

On March 1, 1988, the trial court entered summary judgment in favor of Booth/Hansen and Thatcher Engineering for failure to file suit within two years as required by section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214). On the same day, the court granted Lindahl’s section 2 — 619 motion to dismiss count VI on the same grounds. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619.) On June 10, 1988, the court granted summary judgment in favor of Burton-Lipman and Caisson for the same reasons.

Section 13 — 214 sets forth a two-year statute of limitations for actions “against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214(a).

Plaintiff argues that section 13 — 214 does not apply to its complaint against defendants because the limitations period applies only to injuries “caused by some defects in improvements to real property.” It does not apply to cases like the present one, involving “claims arising from *** general acts of negligence while they are installing or erecting an improvement to real property.” Thus, it maintains that section 13 — 214 should be applied only where the injury is caused “by some defect in an improvement,” and not caused by “general acts of negligence,” regardless of “whether they are repairing improvements *** [or] constructing improvements.” Plaintiff contends that the five-year limitation for property damage applies. (See Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205.) We do not agree.

Section 13 — 214 encompasses all actions against persons involved in the construction-related activities enumerated in the statute. (People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc. (1986), 114 Ill. 2d 252, 500 N.E.2d 34.) Section 13 — 214 permits recovery by adjacent landowners. (Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131.) In construing section 13 — 214, we look to the plain language of the statute. (In re Estate of Cohen (1983), 112 Ill. App. 3d 265, 445 N.E.2d 391.) Section 13 — 214(a) clearly and unambiguously bars all “actions based upon tort *** against any person for an act or omission *** in the *** construction of an improvement to real property” not commenced within two years. Ill. Rev. Stat. 1985, ch. 110, par. 13— 214(a). See Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346.

We find no distinction between “improvements” and “defects in improvements.” The statute refers to any acts or omissions. (See Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131.) Plaintiff also wishes us to rewrite the statute to exclude claims for “general negligence” relating to the defects in improvements to real property. We cannot ignore the plain intent of the legislature, as determined from the statute itself, to include all negligent torts. Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346.

Plaintiff also argues that an excavation is not an improvement to real property under section 13 — 214 because “the excavation did not constitute an improvement which would enhance the value of the defendant’s adjoining premises permanently for general uses,” and if the property were “placed on the market for sale at that time its value could very well have been diminished by reason of the excavation.”

An improvement involves more than mere repair or replacement, and excavation prior to construction is an “improvement.” See Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346; Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131; see also Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613.

Plaintiff’s reliance on Calumet Country Club as support for its argument that a jury should decide whether the excavation was an “improvement” is misplaced. In Calumet Country Club, there were insufficient facts alleged to determine whether a piping connection constituted an “improvement.” The court specifically noted that this question of fact would not arise where the construction of a building was at issue.

The trial court properly concluded that plaintiff’s cause of action was barred by the two-year statute of limitations under section 13 — 214 of the Code of Civil Procedure.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

EGAN, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ELSIE HARKINS, Plaintiff-Appellant, v. SYSTEM PARKING, INC., d/b/a Systems Auto Park, Inc., Defendant-Appellee.
    First District (6th Division)
    No. 1—88—3141
    Opinion filed July 28, 1989.

      John Thomas Moran, of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Paul B. O’Flaherty, Jr., and Mary K. McMahon Dudley, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Elsie Harkins, appeals from an order entering summary judgment in favor of defendant, Systems Parking, Inc., d/b/a Systems Auto Park, Inc., in this negligence case.

The complaint alleges that on February 3, 1982, while walking across defendant’s parking lot, plaintiff fell on snow and ice and broke her hip. Plaintiff alleges that defendant negligently and knowingly left the premises in a defective and dangerous condition.

Defendant filed a motion for summary judgment on the ground that plaintiff was a trespasser who fell on a natural accumulation of snow and ice and thus it owed no duty to her.

Thereafter, plaintiff filed an amended complaint. She set forth defendant’s willful and wanton acts of misconduct and failure to warn plaintiff that the premises were in an unsafe condition concealed by snow and ice which was an unnatural accumulation.

Defendant filed another motion for summary judgment on the ground that plaintiff was a trespasser, or at best a licensee, and that defendant’s alleged wrongful conduct could not be characterized as willful and wanton.

On October 5, 1987, the court entered summary judgment for defendant, but granted plaintiff’s request for leave to file a second amended complaint and affidavit. Plaintiff’s affidavit states that she worked at the Bismark Hotel in Chicago and that every day, along with many other people, she walked across defendant’s parking lot to reach the hotel. Two days prior to her fall, there was an unnatural accumulation of ice and she saw defendant’s employee spreading salt across the parking lot. On February 3, 1982, it was snowing slightly. On the previous day, “cars which had been parked on the parking lot by the parking attendant caused tire ruts [to be formed] in the ice which was melted by the salt and covered by the snow that had accumulated on the ground.” Plaintiff “fell on one of the tire ruts which was caused by the salt which had previously melted the ice which had re-formed into a rut and [was] covered by snow.”

The second amended complaint alleged negligence in spreading salt, “said salt causing a natural accumulation of ice to become unnatural,” and failure to remove the melted ice. Plaintiff alleged she was a “permissive user” on the premises. No allegations regarding willful and wanton misconduct were included, or incorporated from previous complaints.

On September 22, 1988, the court granted defendant’s renewed motion for summary judgment. At the hearing, the court stated that under the undisputed facts, there was no evidence of aggravation of a natural condition other than the spreading of salt, which was not a basis for liability. Plaintiff had failed to come forward with evidence to show the ice and snow were unnatural. The court added that, although not pled, one might argue that defendant had a duty to warn of ruts, but that there could be no liability on such a theory because defendant owed no corresponding duty to protect plaintiff from the underlying condition. Plaintiff appeals.

Summary judgment is proper where the pleadings, depositions, affidavits and other documents show there is no genuine issue of material fact remaining and the movant is entitled to judgment as a matter of law. Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 467 N.E.2d 947; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.

Plaintiff maintains that she was a licensee on defendant’s property, and defendant counters that she was a trespasser. To a trespasser or a licensee, a property owner owes only the duty not to willfully and wantonly injure that person. (Mentesana v. LaFranco (1979), 73 Ill. App. 3d 204, 391 N.E .2d 416.) We note that the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 301 et seq.) is not applicable here. (See Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 495 N.E.2d 679.) Plaintiff in her second amended complaint fails to allege any willful and wanton misconduct, and only alleges mere negligence. (See Mentesana v. LaFranco (1979), 73 Ill. App. 3d 204, 391 N.E.2d 416.) We will not consider allegations contained in the prior, abandoned complaint. (See Cipolla v. Bloom Township High School District No. 206 (1979), 69 Ill. App. 3d 434, 388 N.E.2d 31.) Absent these allegations, plaintiff cannot recover.

Even if willful and wanton misconduct were sufficiently pleaded, plaintiff has failed to allege sufficient facts to recover. Plaintiff contends defendant’s negligence is a disputed, material issue of fact because after defendant salted the parking lot, ice melted and ruts were made by vehicles, the ruts froze, and new snow concealed the ruts and ice.

A property owner has no duty, and is not liable for injuries caused by, a natural accumulation of snow and ice. (Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 497 N.E.2d 1331; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.) However, a property owner does owe a duty and may be liable where the injuries are caused by an unnatural accumulation of ice and snow or the owner aggravates a natural condition. (Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 497 N.E.2d 1331.) To withstand a motion for summary judgment, plaintiff must allege facts sufficient to permit a trier of fact to find there was an unnatural accumulation of ice and snow for which defendant was responsible. Galivan v. Lincolnshire Inn, 147 Ill. App. 3d 228, 497 N.E.2d 1331; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031; Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184.

Plaintiff points to the ruts made by vehicles. Ruts and uneven surfaces created by traffic in snow and ice are not considered unnatural and cannot form the basis for liability. (Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 497 N.E.2d 1331 (court found no facts allowing a jury to find anything other than a natural accumulation where defendant’s parking lot was covered with icy ruts and ridges formed by tires of automobiles, and the lot had not been plowed, scraped or salted). See also Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031 (accumulation was natural where pedestrians create ruts in ice and snow on urban sidewalk).) The mere fact that traffic and varying temperatures have molded the snow into an uneven surface of ruts does not transform the snow into an unnatural accumulation. (Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 497 N.E.2d 1331.) Absent an unnatural formation, defendant owed plaintiff no duty to remove the snow or warn her. See Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 497 N.E.2d 1331.

Plaintiff argues it was an unnatural accumulation because defendant salted the area and did not remove the melted ice prior to vehicles driving on the lot. The mere sprinkling of salt, causing ice to melt, although it may later refreeze, does not aggravate a natural condition so as to form a basis for liability on the part of the property owner. (Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896, 438 N.E.2d 241 (summary judgment for defendant upheld by majority where defendant’s parking lot had rough and uneven ruts of ice caused by vehicles in a place intended for use by such vehicles, and thus ruts resulting from such use are not result of unnatural accumulation of snow and ice created by defendant); Lewis v. W.F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39 (no liability where defendant’s employee sprinkled salt on steps while it was sleeting and snowing and later he was unable to remove ice by chipping). See also Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288 (defendant shoveled, alternate thawing and freezing caused snow to melt, run onto sidewalk and freeze, defendant applied rock salt but was not liable); Timmons v. Tarski (1981), 103 Ill. App. 3d 36, 430 N.E.2d 1135 (no liability where defendant shoveled and applied salt to sidewalk out to parking lot); DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330 (defendant shoveled, but slush remained and crystals of thawing compound were present); Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217, 188 N.E.2d 383 (defendant plowed parking lot and spread salt near store’s entrance; no evidence the application of salt would produce water which would flow to place of accident and freeze).) There is no evidence in the present case of anything improper about the manner in which defendant removed snow or salted the area. See DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330.

On the record here, the trial court properly found as a matter of law that no duty was owed where willful and wanton misconduct was not alleged or shown, and where the parking lot condition was the product of a natural accumulation of snow and ice. The trial court correctly entered summary judgment for defendant.

Plaintiff’s reliance on Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534, is misplaced. Unlike the present case, in Fitzsimons, defendant removed snow and piled it in an area where drainage caused melting snow to accumulate and freeze.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE BUCKLEY

text:
    In re ESTATE OF ROBERT WALDER THOMPSON, a Disabled Person (Robert Walder Thompson, Petitioner-Appellant, v. Marshall Patner et al., Respondents-Appellees).
    First District (1st Division)
    Nos. 1—88—0857, 1—88—1010, 1—88—1907 cons.
    Opinion filed July 31,1989.

      Chuhak, Tecson, Kienlen, Feinberg & Grasso, P.C., of Chicago (Barry A. Feinberg, Kelli K. Chase, and Mark B. Epstein, of counsel), for appellant.
    Marshall Patner, of Marshall Patner, P.C., of Chicago, appellee pro se.

    Despres, Schwartz & Geoghegan, of Chicago, for appellee Northern Trust Company.
    Protection & Advocacy, Inc., of Chicago (Carol J. Bell, Barbara J. Heathfield, and Kristin M. Kerschensteiner, of counsel), for amicus curiae.

   JUSTICE BUCKLEY

delivered the opinion of the court:

In this consolidated appeal, Dr. Robert Walder Thompson (petitioner), a disabled person, appeals from three orders entered by the probate court on matters relating to his estate. The petitioner’s family, Lee Thompson and his six children (respondent family), responds to petitioner’s appeal of the February 24, 1988, order denying a petition to restore competency over petitioner’s estate and awarding attorney fees, as well as the March 23, 1988, order denying petitioner’s motion for leave to appeal and retain counsel. The guardian of the estate, the Northern Trust Company (respondent Northern Trust), responds to petitioner’s appeal of the May 24, 1988, order forbidding petitioner to purchase or drive an automobile because of his disability as to his estate. Petitioner raises the following issues on appeal: (1) whether the circuit court erred in holding that he was not entitled to an appeal; (2) whether the circuit court erred in not permitting him to retain counsel for appeal; (3) whether the circuit court was justified in awarding attorney fees to an attorney not representing the guardian of the estate; (4) whether the circuit court’s denial of the restoration petition as to his estate was against the manifest weight of the evidence; and (5) whether the circuit court erred in revoking his driving privileges. For the reasons set forth below, we affirm in part, reverse in part and remand.

Petitioner is a 69-year-old renowned physicist who possesses a Ph.D. from M.I.T. and whose work is displayed at the Smithsonian Institute. In the mid-1960’s petitioner began suffering from alcohol addiction and was subsequently adjudicated a disabled adult in 1976 pursuant to sections 11a — 1 through 11a — 23 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1987, ch. 110½, par. 1 — 1 et seq.). As a result of his disability, respondent Northern Trust was appointed guardian of the estate, and, in 1978, a conservator of his person, Maxine R. Bardach, was appointed.

On January 11, 1982, the circuit court fully restored petitioner to competency of his person and removed Bardach as guardian. Respondent Northern Trust, however, remained guardian over the estate. No petition for restoration of petitioner’s estate was made at this time, but petitioner was granted financial privileges consisting of an allowance of discretionary funds. From an estate valued over $1.1 million, petitioner is currently managing approximately $60,000, the amount he has saved from his discretionary fund.

On December 29, 1983, petitioner filed a “Petition for Termination of Adjudication of Disability” over his estate. Before proceedings commenced on this petition, the circuit court entered an order on June 8, 1984, granting approval of petitioner’s purchase of an automobile from his discretionary funds. The circuit court entered this order following petitioner’s testimony that he would utilize the vehicle for convenience and regular attendance at “AA” meetings. After numerous psychiatric evaluations, hearings were held on the petition, commencing in May 1987, and ending in May 1988. Throughout the restoration proceedings, cocounsel Mark Epstein and Barry Feinberg represented petitioner.

Evidence adduced at the hearings disclosed the following: Two expert witnesses, both psychiatrists who had evaluated petitioner on previous occasions, testified at the hearing. Dr. Jerome Beigler, petitioner’s treating physician, testified to the damage petitioner incurred as a result of his alcohol addiction. Although Dr. Beigler determined that petitioner suffered some brain damage, he stated that a guardian for petitioner’s estate was unnecessary.

Dr. Jan Fawcett testified as a court-appointed expert psychiatrist. Dr. Fawcett deemed petitioner incompetent as to his estate. He testified that petitioner has suffered from dementia associated with alcoholism and that he lacks the judgment necessary to manage a substantial amount of money. Dr. Fawcett expressed his concern that petitioner would suffer from increased stress due to the management of his large estate and would return to alcohol abuse.

On February 24, 1988, Judge Dowdle denied petitioner’s petition for restoration as to his estate. At the same time, he awarded attorney fees to Marshall Patner, who represented members of petitioner’s family on numerous matters throughout the hearings. He also instructed the petitioner, sua sponte, to cease driving and to divest himself of any automobile. The circuit court later denied petitioner’s request for funding to repurchase an automobile and insurance coverage, despite an opinion from the Secretary of State’s office stating that petitioner is eligible to drive so long as he is competent as to his person.

Subsequently, Feinberg filed a motion on petitioner’s behalf seeking leave to appeal the denial of restoration as to his estate and an order permitting petitioner to retain counsel for appellate proceedings. The circuit court denied the motion on the basis that the Act does not permit an appeal. Feinberg also requested leave to file a motion for reconsideration and objections to the attorney fees awarded to attorney Patner. The circuit court refused to entertain the motion, finding that Feinberg lacked standing to object to the fees because his appearance was limited to representing petitioner in the restoration hearing.

On appeal, petitioner initially contends that the court erred in finding that he was not entitled to an appeal. The Act governs disability proceedings. It, however, contains no explicit authority which provides for an appeal after a restoration hearing. Petitioner argues that the right to appeal a restoration hearing may be inferred from the various provisions of the Act. We agree.

The Act expressly states that “[t]he Civil Practice Law *** and the Supreme Court Rules *** apply to all proceedings under this Act.” (Ill. Rev. Stat. 1987, ch. 110½, par. 1 — 6.) The Act demands a liberal reading. (Ill. Rev. Stat. 1987, ch. 110½, par. 1 — 9.) Furthermore, section 26 — 1 of the Act provides that “[a]ppeals may be taken as in other civil cases.” (Ill. Rev. Stat. 1987, ch. 110½, par. 26 — 1.) Pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301), “[e]very final judgment of a circuit court in a civil case is appealable as of right.” Thus, since the order denying petitioner restoration as to his estate is a final judgment, it is therefore appealable as of right, similar to appeals in other civil cases.

Additionally, Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)) provides that “[a] judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party” is appealable. Although petitioner’s appeal was not based upon Rule 304, this rule provides another avenue by which petitioner could have invoked the right to appeal his restoration proceeding.

The right to appeal a restoration proceeding is also constitutionally required. (Ill. Const. 1970, art. VI, §6.) Section 6 of the Illinois Constitution provides that appeals from final judgments of a circuit court are a matter of right to the appellate court in their district. (Ill. Const. 1970, art. VI, §6.) Because the circuit court’s order denying petitioners restoration as to his estate was a final judgment, the Illinois Constitution grants him the right to an appeal.

Finally, allowing petitioner an appeal here is in harmony with Illinois case law recognizing an appeal from disability proceedings under the Act in similar circumstances. (See In re Estate of Barr (1986), 142 Ill. App. 3d 428, 491 N.E.2d 1241; In re Estate of Malloy (1981), 96 Ill. App. 3d 1020, 422 N.E.2d 76; In re Estate of Rankin (1944), 322 Ill. App. 64, 53 N.E.2d 747.) We find that there is no reason here to deny petitioner the right to appeal the restoration hearing when appeals have been allowed in similar disability proceedings under the Act.

Based on the foregoing, we hold that the Act affords petitioner the right to an appeal; therefore, we reverse the circuit court’s order denying petitioner’s right to appeal his restoration hearing.

Petitioner next contends that the circuit court erred in not allowing him to retain counsel for appeal. We agree.

The Act provides for the right to counsel at a hearing where there may be an adjudication of disability. (Ill. Rev. Stat. 1987, ch. 110½, pars. 11a — 10(b), 11a — 21(a).) Counsel must be provided upon the ward’s request. (Ill. Rev. Stat. 1987, ch. 110½, par. 11a — 10(b)(2).) We find that an appeal of a final order denying a petitioner restoration as to his estate is an extension of the proceedings under sections 11a— 10(b) and 11a — 21(a) of the Act. Following from this implied extension, if a petitioner is entitled to counsel during the restoration proceedings, he, too, is entitled to counsel on appeal from these identical proceedings.

Persuasive authority supports this conclusion. A thought-provoking law review article on this subject matter analyzes sections 11a — 1 through 11a — 23 of the Act and concludes that the purpose behind these sections is to ensure that disabled adults are afforded their procedural and constitutional rights, one of these rights being the right to be represented by counsel.

Thus, pursuant to sections 11a — 10(b) and 11a — 21(a) of the Act, we hold that the circuit court erred in finding that petitioner is not entitled under the Act to retain counsel for appeal.

Turning to the circuit court’s award of attorney fees to respondent family’s attorney, Marshall Patner, petitioner contends that Patner is not entitled to fees payable from estate assets. The circuit court found that Feinberg and petitioner lacked standing to object. Respondent family further argues that petitioner has waived this issue for appeal.

Respondent family’s argument that petitioner waived this issue by failing to object to Patner’s attorney fees petition is ill-founded based upon the record. The record indicates that Feinberg sufficiently objected to the petition, but the circuit court refused to entertain the objection.

In contrast to the case at bar, the cases respondent family cites as finding a waiver in certain circumstances (Mazur v. Lutheran General Hospital (1986), 143 Ill. App. 3d 528, 493 N.E.2d 62: Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 470 N.E.2d 1047) involve records that were silent as to the assertion of any objection.

The circuit court’s finding that Feinberg and petitioner lacked standing to object also is incorrect. In making this determination, the circuit court stated that Feinberg was limited to representing petitioner in the restoration hearing and therefore was without authority to object to matters outside these proceedings. Neither the circuit court nor respondent family cites any authority for the proposition that Feinberg lacked standing to object on the basis that he was merely representing petitioner as to the restoration hearing. In the absence of such authority, we will not base our ruling on a distinction between the restoration proceedings and the proceedings relating to Patner’s attorney fees.

As the parties recognize, awarding attorney fees is in the sound discretion of the circuit court and the award granted will not be disturbed absent an abuse of discretion. (In re Estate of Kutchins (1988), 169 Ill. App. 3d 641, 646, 523 N.E.2d 1025, 1028; Rennacker v. Rennacker (1987), 156 Ill. App. 3d 712, 715-16, 509 N.E.2d 798, 801.) To properly represent an incompetent individual, however, one must have the express power and authority from the court to act for such person and to bind his estate. Kutchins, 169 Ill. App. 3d at 645, 523 N.E.2d at 1027; Rankin, 322 Ill. App. at 67, 53 N.E.2d at 749.

Leon Despres, attorney for guardian of the estate, requested that Patner represent respondent family because he feared that a conflict of interest would arise between petitioner’s family and the guardian of the estate. Although we acknowledge that the record is devoid of any motion made by Patner for leave to file as additional counsel for respondent family, we find that the circuit court acquiesced in Patner’s representation of respondent family. Because separate representation of respondent family was necessary to fairly protect the parties under these circumstances, and because we find that the circuit court’s acquiescence gave Patner the authority to act and to bind petitioner’s estate for attorney fees, we will not hold here that the circuit court abused its discretion in awarding Patner attorney fees.

Next, it must be determined whether the circuit court’s ruling regarding petitioner’s restoration over his estate was against the manifest weight of the evidence. In order for this court to hold the circuit court’s ruling against the manifest weight of the evidence, an opposite conclusion must be clearly evident. Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.

The record indicates that the circuit court carefully evaluated all of the evidence presented in ruling that petitioner’s competency over his estate could not be restored because he continued to suffer from dementia associated with alcoholism. The circuit court considered the following: petitioner’s history of alcoholism, lay/expert testimony, educational background, and petitioner’s ability to manage his money and daily affairs.

As the record reflects, the expert testimony was conflicting on whether petitioner should be restored to competency over his estate. Resolution of conflicting expert testimony is properly for the trier of fact. (Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App. 3d 11, 18, 440 N.E.2d 180, 186.) Since the record does not dictate an opposite conclusion, and because a reviewing court may not substitute its judgment for the circuit court where its finding is not against the manifest weight of the evidence (In re Estate of Galvin (1983), 112 Ill. App. 3d 677, 682, 445 N.E.2d 1223, 1226; Malloy, 96 Ill. App. 3d at 1029, 422 N.E.2d at 83), we affirm the circuit court’s denial of petitioner’s petition seeking restoration as to his estate.

Petitioner’s final contention is that the circuit court erred in depriving him of his driving privileges based upon his incompetency as to his estate. Because the circuit court’s determination was made without affording petitioner an opportunity to offer evidence showing that his estate would not be jeopardized if he were permitted to drive, we reverse and remand and instruct the circuit court to allow petitioner the opportunity to present evidence on this issue. On remand, after petitioner has been afforded this opportunity, the circuit court shall then determine as to whether petitioner should be permitted to drive.

In making this determination, preservation of petitioner’s estate will be of utmost importance. (Ill. Rev. Stat. 1985, ch. 110½, pars. 11a — 3(b), 11a — 18.) The record indicates that respondent Northern Trust and the circuit court feared that petitioner’s estate could be dissipated in the unfortunate event of an automobile accident in which petitioner is deemed liable. Because of petitioner’s age and history of alcoholism, respondent Northern Trust asserts that even the most superior insurance policy would not adequately insure an estate valued over $1.1 million. These arguments are well taken, but petitioner must be given his day in court to overcome these concerns.

Finally, we note that the circuit court’s findings as to this matter will in no way reflect upon the Illinois Vehicle Code’s “eligibility” requirements (Ill. Rev. Stat. 1987, 95½, par. 6 — 103(5)) or usurp the Secretary of State’s authority over such matters. The adjudication here merely concerns the preservation of petitioner’s estate according to the Act (Ill. Rev. Stat. 1987, ch. 110½, pars. 11a — 3(b), 11a — 18).

In summary, we reverse the circuit court’s order denying petitioner the right to appeal his restoration proceedings and to retain counsel. We affirm the circuit court’s order deeming petitioner incompetent as to his estate and its awarding of attorney fees to attorney Patner. As to the circuit court’s revocation of petitioner’s driving privileges, we reverse and remand the cause to the circuit court to consider, consistent with this opinion, evidence presented by petitioner on this issue.

Affirmed in part; reversed in part and remanded with directions.

CAMPBELL and O’CONNOR, JJ., concur.

       Protection & Advocacy, Inc., was granted leave to file an amicus curiae brief relative to petitioner’s motion for leave to appeal and retain counsel.

       Feinberg filed a petition to appear as additional counsel on behalf of petitioner on August 25,1986.

       Jost, The Illinois Guardianship for Disabled Adults Legislation of 1978 and 1979: Protecting the Disabled From Their Zealous Protectors, 56 Chi.-Kent L. Rev. 1087, 1090, 1096 (1980).


text:
    HARRIS TRUST & SAVINGS BANK et al., Plaintiffs-Appellees, v. GORDON GALE MacLEAN et al., Defendants-Appellees (William Shellman Morse, Defendant-Appellant; Walter P. Dahl, Guardian ad litem for minors and unborn persons who do or will trace their relationship to Norman W. Harris through one or more adoptions, Defendant-Appellant; Stewart S. Dixon, Guardian ad litem for minors and unborn persons who do or will trace their relationship to Norman W. Harris by blood, Defendant-Appellant).
    First District (1st Division)
    Nos. 1 — 88—0922,1—88—0927, 1 — 88—0972 cons.
    Opinion filed July 31, 1989.
    Rehearing denied August 30,1989.

      Freeborn & Peters, of Chicago (Peter I. Mason, Margaret S. Garvey, and Andy V. Jonusaitis, of counsel), for appellant William Shellman Morse.
    James E. Dahl & Associates, of Chicago (Walter P. Dahl, of counsel), for appellant Walter P. Dahl.
    Wildman, Harrold, Allen & Dixon, of Chicago (Robert E. Hamilton, of counsel), for appellant Stewart S. Dixon.
    Schiff, Hardin & Waite, of Chicago (Paul B. O’Flaherty and William A. Montgomery, of counsel), for appellees Harris Trust & Savings Bank, Norman W. Harris III, Huntington Harris, Stanley G. Harris, Jr., and Thomas B. Harris.
    Lord, Bissell & Brook, of Chicago (Joseph E. Coughlin, of counsel), for appellee Gordon Gale MacLean.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Norman W. Harris died on July 15, 1916. Before his death, he created a trust by means of a will dated January 24, 1911 (the Trust under Will), and three later-date codicils. He also executed a separate trust instrument dated April 20, 1914 (the 1914 Trust). Trustees under the Trust under Will and the 1914 Trust — Harris Trust and Savings Bank, Norman W. Harris, III, Stanley G. Harris, Jr., and Thomas B. Harris — brought suit in the circuit court of Cook County to obtain approval of accounts and to resolve various issues of construction.

In their complaint, the trustees named as defendants all living persons who trace their relationship lineally to Norman Harris through either blood or adoption. Two of these defendants answered and filed their appearances: Gordan Gale MacLean, a blood-related grandson of Norman Harris and a current income beneficiary, and William Shellman Morse, an adopted son of Charity Bent Harris Morse, the blood-related granddaughter of Norman Harris and a current income beneficiary.

The circuit court appointed Walter P. Dahl as guardian ad litem to represent all minor defendants and unborn persons who trace or will trace their relationship to Norman Harris through adoption. The court further appointed Stewart S. Dixon as guardian ad litem to represent all minor defendants and unborn persons who trace or will trace their relationship to Norman Harris by blood.

From the hearing on the trustees’ complaint and the circuit court’s “Final Judgment and Consent Decree,” defendant Morse and guardian Dahl appeal, contending that the circuit court erred in finding that persons related to Norman Harris through one or more adoptions are not beneficiaries of the Trust under Will and the 1914 Trust. The trustees have responded to this appeal. In addition, guardian Dixon appeals the circuit court’s order, contending that the circuit court erred in finding that the trustees had no authority to make an equitable adjustment between income and principal due to a tax benefit received by the income beneficiaries. The trustees and defendant MacLean have responded to this appeal.

The facts relevant to the circuit court’s ruling on the adoption issue will be first outlined, while those pertinent to its ruling on the equitable adjustment issue will be set forth later in this opinion.

The trustees’ complaint in the circuit court requested that the court construe the Trust under Will and the 1914 Trust and instruct them as to whether persons related by adoption to Norman Harris are beneficiaries under these instruments. The parties cite the following provisions as relevant to the circuit court’s determination. The Trust under Will provision providing for the distribution of principal states:'

“Said trust shall terminate twenty-one (21) years after the death of the last survivor of my children and grandchildren who shall be living at the time of my death, and upon the termination of said trust the principal of said trust fund and all accumulations thereof shall go to and be divided between my lawful issue then surviving, per stirpes, that is to say, the then surviving lawful issue of each of my children shall take the same share or interest therein which they would have been entitled to receive under the laws of the State of Illinois now in force, if I had died intestate at the date of the termination of said trust under said trust estate.”

“Article Fourth” of the 1914 Trust, also providing for the distribution of principal, states:

“The trust created by this indenture shall terminate at the expiration of twenty (20) years after the death of the last survivor of my children and grandchildren living at the date of the execution of this indenture; and upon the termination of said trust the principal of the trust fund and estate held hereunder and all accumulations thereof shall go to and be divided between my lawful issue then surviving, per stirpes, that is to say: the then surviving lawful issue of each of my children shall take the same share and interest therein that they would be entitled to receive under the laws of the State of Illinois now in force if I had died intestate at the date of the termination of said trust owning said trust estate.”

Similar language is used in provisions relating to the distribution of the net income in the Trust under Will and 1914 Trust.

The codicil of the will dated December 26, 1911, further provided that “descendants” of Norman Harris who meet specified qualifications may become trustees of the Trust under Will and that a majority of his descendants who are of lawful age and beneficiaries under the will shall select the active trustee.

In construing a will or a trust, a court’s primary objective is to give effect to the testator’s or grantor’s intent, provided the intent is not against public policy. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 513 N.E.2d 833; In re Estate of Laas (1985), 134 Ill. App. 3d 504, 480 N.E.2d 1183; Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 163 N.E.2d 523; Storkan v. Ziska (1950), 406 Ill. 259, 94 N.E.2d 185.) It is fundamental that a court must ascertain this intention from the terms of the will, by giving the words employed their plain and ordinary meaning. (Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251; In re Estate of Breault (1963), 29 Ill. 2d 165, 193 N.E.2d 824.) A court may allow extrinsic evidence only to resolve ambiguity in the instrument. (Larison, 117 Ill. 2d 444, 512 N.E.2d 1251.) Courts may also resort to rules of construction, or judicial presumptions, to determine the meaning of an instrument’s terms, but only where the intent of the testator cannot be ascertained from the language of the instrument. Harris Trust, 118 Ill. 2d 1, 513 N.E.2d 833; Chicago Title & Trust Co. v. Schwartz (1983), 120 Ill. App. 3d 324, 458 N.E.2d 151.

In 1925, a rule of construction was applied in Smith v. Thomas (1925), 317 Ill. 150, 147 N.E. 788, to interpret a will, silent as to the testator’s intent with regard to adopteds, where the testator was not the adopted parent of the adopted child. Smith established the judicial presumption called “the stranger to the adoption rule,” that, in the absence of language to the contrary, testators or settlors intended to exclude adopteds as beneficiaries. This presumption was changed by legislative enactment as to instruments executed after September 1, 1955. Section 2 — 4(e) of the Probate Act of 1975 provides that an adopted child will be treated as a natural child in all instruments executed after September 1, 1955, “unless the contrary intent plainly appears by the terms of the instrument.” Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 4(e).

It is apparent from the record that the circuit court, in construing the instruments in issue here, based its decision upon the testator’s intent derived from the language of the instrument. The court concluded that Norman Harris intended to exclude adopteds as beneficiaries based upon his persistent use of the terms “lawful issue” and “descendants” and evidence offered as to the meaning accorded to those terms by law at the time. The court explicitly stated that, while it considered the judicial presumption and legislative change, its decision was not based upon any presumption.

The threshold question presented for our review is whether the circuit court could have derived Norman Harris’ intent from the language of the instrument. The trustees argue that Norman Harris’ intent may be derived from the instrument in two ways. First, they argue that the use of the words “lawful issue” and “descendants” in itself is sufficient evidence of his intent because, under their ordinary meaning as established long before Norman Harris’ death, these words refer to “one who proceeds from the body of another, however remotely.” (Bates v. Gillett (1890), 132 Ill. 287, 297, 24 N.E. 611, 612; accord Winchell v. Winchell (1913), 259 Ill. 471, 474, 102 N.E. 823, 825; Bouvier’s Law Dictionary 852, 1686-87 (8th ed. 1914).) The plain and ordinary meaning of this technical term, as evidenced by the excerpts from Bouvier’s Law Dictionary introduced in the circuit court by guardian ad litem Dixon, does not indicate that the effect of this term in testamentary instruments would be to exclude adopteds. Moreover, no case law existed in 1914 which so held. Thus, we fail to see how the court could conclude that Norman Harris intended to exclude adopteds from his use of the term “issue” in 1914.

Although not relied upon by the circuit court in its findings, the second way that the trustees contend Harris’ intent may be derived from the instruments is through the explanatory language in the provision relating to the distribution of the trust principal. The provision provides:

“The trust principal shall be divided between my lawful issue . then surviving per stirpes, that is to say, the then surviving lawful issue of each of my children shall take the same share or interest therein which they would have been entitled to receive under the laws of the State of Illinois now in force, if I had died intestate at the time of the termination of said trust.”

The trustees argue that since under the adoption act then in effect an adopted individual could not inherit by right of representation from an intestate lineal or collateral relative (Adoption Act of 1874 (Ill. Rev. Stat. 1874, ch. 4, par. 5)) and since per stirpes traditionally as been defined as denoting a distribution by right of representation (Mercantile Trust & Savings Bank v. Rogers (1955), 5 Ill. App. 2d 162, 169, 124 N.E.2d 683, 686-87; Black’s Law Dictionary 1030 (5th ed. 1979)), that under the laws then in existence adopteds could not have taken any share if Norman had died intestate. Thus, they reason, Norman Harris must have intended to exclude adopteds.

Defendant Morse, on the other hand, disputes that “laws *** now in force” refers to the adoption act. He argues that it most likely refers to the Illinois Descent Act of 1872 (1877 Ill. Laws 93, par. 1) because the explanatory language merely illustrates the per stirpes method of distribution. Since the descent statute is silent as to adoption, defendant Morse asserts that it sheds no light on Norman Harris’ intent.

Yet another interpretation of the above-quoted explanatory language is that argued by defendant Dahl. He asserts that the use of the words “the then surviving lawful issue of each of my children” (emphasis added), instead of repeating the words “my lawful issue then surviving,” indicates an intention to explain which persons were to become beneficiaries and an intention to include adopted persons. Dahl argues that such an assertion is valid because under the Adoption Act of 1874, an adopted child was considered the lawful issue of the adopting parents. Ill. Rev. Stat. 1874, ch. 4, par. 5.

The above constructions of this provision demonstrate its ambiguity. We, therefore, conclude that in the absence of extrinsic evidence, Norman Harris’ intent cannot be ascertained from this provision.

Such a conclusion does not preclude a finding as to Norman Harris’ intent because, as already indicated, courts may resort to rules of construction to determine a testator’s intent. The circuit court, however, expressly stated that it did not apply a presumptive rule of construction in reaching its decision. Because the circuit court did not consider application of a rule of construction, we remand this case for the circuit court to make that determination.

Although we are remanding this case to the circuit court, we believe it necessary to state that the presumption adopted by Illinois courts in 1925 should not be applied to the case at bar. The court is not bound by the judicially created “stranger to the adoption rule” since the instruments here were clearly executed before its existence. While our legislature has not forbidden the application of a presumption that excludes adopteds on instruments executed prior to 1955, it is fairly clear that today’s societal attitudes favor no differentiation between adopteds and natural bom children. Not only does the 1955 legislative change in the presumption toward adopteds reflect today’s policy, current policy is also evidenced by numerous legislative enactments protecting adopteds from exclusion from certain benefits or rights. (See Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 2(c)); Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 1 — 101 et seq.); School Code (Ill. Rev. Stat. 1987, ch. 122, par. 30 — 14.2); Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 968h).) Thus, there appears to be no reasonable basis for applying a presumption which excludes adopteds in the case at bar.

Shifting focus to the second issue presented for our review, the trastees’ complaint also requested that the circuit court instruct them as to whether, in response to a tax benefit in the form of deductions that the income beneficiaries received due to certain taxes and expenses which the principal paid, an adjustment between the income and principal accounts of the Trust under Will was required or permitted. On September 4, 1984, the trustees sold approximately 90% of the assets of the trust principal, consisting of 1,475,190 shares of Harris Bankcorp stock. The amount received from the sale, $120,965,580, was added to the trust’s principal account as required by the Illinois Principal and Income Act (the Act) (Ill. Rev. Stat. 1987, ch. 30, par. 501 et seq.). On October 15, 1985, the trustees paid $23,717,259.45 in Federal tax and $3,524,547.61 in State tax from the principal account on $117,217,129.24 in capital gains realized from the sale and other less significant capital gains.

The payment from principal of the Illinois taxes generated a Federal income tax deduction of $3,524,547.61 in the trust fiscal year following the year of the sale. Pursuant to Internal Revenue Code provisions, this deduction reduced the amount of taxable trust income otherwise reportable by the income beneficiaries.

In the circuit court proceedings, the parties stipulated that these consequences of the sale were not the result of any trustees’ election, but the result of the nondiscretionary application of provisions of the Act and Federal income tax law. Guardian Dixon conceded that the Federal and State taxes paid by the trust were properly chargeable to principal and that the Internal Revenue Code does not allow the trust to deduct the State tax paid on the capital gains in computing the Federal tax paid by the trust on capital gains. On appeal, guardian Dixon argues that the circuit court’s refusal to order an equitable adjustment was error due to the peculiar circumstances of this case — the inequities resulting from the sale of nearly 90% of the trust’s assets in one year.

In its “Final Judgment and Consent Decree,” the circuit court specified two reasons for its decision. It found that an equitable adjustment between principal and income was not appropriate in response to inequities resulting from the mandatory application of the tax laws. It further found, under the facts and circumstances of the case, that no basis existed in equity to make an adjustment between income and principal “inasmuch as both the income beneficiaries and the remainder beneficiaries received very significant benefits” from the sale of the stock.

The question of whether a trustee is required to make an equitable adjustment between the trust’s income and principal accounts where inequitable consequences result from the mandatory application of tax laws is one of first impression in Illinois. Several courts in other jurisdictions have addressed this issue. Some courts have suggested that an equitable adjustment should only be applied in response to a trustee’s election or discretionary decision (In re Dick’s Estate (1961), 29 Misc. 2d 648, 218 N.Y.S.2d 182; In re Kent’s Estate (1964), 23 Fla. Supp. 133), while one court has approved an adjustment to correct inequities not caused by any discretionary decision of the trustees (Rice Estate (1956), 8 Pa. D. & G. 2d 379) and another has rejected a distinction between discretionary decisions and mandatory applications (In re Holloway’s Estate (1972), 68 Misc. 2d 361, 327 N.Y.S.2d 865).

We believe the better view is that equitable adjustments should be applied only in response to inequities resulting from a trustee’s discretionary decision which favor one beneficiary or class of beneficiaries over another. We agree with the trustees’ position that the common law doctrine of equitable adjustments should only be employed in such circumstances because this concept is grounded in the fiduciary duty of a trustee not to be partial in making decisions or elections impacting on successive beneficiaries. (See In re Warms’ Estate (Surr. Ct. 1955), 140 N.Y.S.2d 169; In re Bixby’s Estate (1956), 140 Cal. App. 2d 326, 295 P.2d 68.) The fiduciary should not be required to cure the inequities resulting from the application of mandatory tax laws; rather, any corrective action is more properly left for the legislature. In re Dick’s Estate, 29 Misc. 2d 648, 218 N.Y.S.2d 182; accord In re Kent’s Estate (1964), 23 Fla. Supp. 133.

Moreover, it appears an equitable adjustment by the trustees here would violate the provisions of the Act. The Act governs the ascertainment of income and principal and the apportionment of receipts and expenses in all cases where a trust is established to the extent not inconsistent with the provisions of the instrument. (Ill. Rev. Stat. 1987, ch. 30, par. 503(a).) Section 503(b)(4) of the Act gives trustees discretion to allocate an expenditure to income or principal only where the trust instrument or the provisions of the Act would not be applicable. The Act provides that the proceeds from the sale of stocks and bonds are to be included in principal and that the tax upon any gain allocated to principal is to be charged against principal. (Ill. Rev. Stat. 1987, ch. 30, pars. 504(b)(1), 514(c)(5).) Since the equitable adjustment requested here would, in effect, apportion the capital gains tax, the adjustment may be in contravention to the above provisions.

Finally, apart from our holding that an equitable adjustment would not be appropriate for inequities resulting from mandatory application of the tax laws, we further hold that the circuit court’s finding that no basis in equity exists under these circumstances to warrant an equitable adjustment is not against the manifest weight of the evidence. The “inequity” of which guardian Dixon complains is that the income beneficiaries received the benefit of capital gains taxes paid by the principal beneficiaries pursuant to its receipt of proceeds from the sale of certain stock. In finding no inequity, the court emphasized that both the income beneficiaries and the principal beneficiaries received significant benefits from the sale of the stock. The record clearly indicates that as a result of the sale of the stock, the principal beneficiaries received over $120 million in gross sales proceeds, whereas the benefit received by the income beneficiaries in the form of tax deductions was relatively small in comparison. We fail to perceive the inequity resulting to the principal beneficiaries to which guardian Dixon complains.

In summary, we reverse the circuit court’s finding that persons related to Norman Harris through adoption are not beneficiaries of his Trust under Will and 1914 Will and remand the case for further proceedings consistent with this opinion. We affirm its order directing the trustees not make an equitable adjustment between the trust’s income and principal accounts.

Affirmed in part; reversed in part and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

       Huntington Harris was also acting as trustee at the time this suit was filed. Subsequently, he resigned as trustee on July 15, 1987.

       Four named party-defendants related to Norman Harris by adoption did not appear or answer and a default judgment was entered against them: John Bartlett Ma-clean II, Mary Lynne Riley MacLean Garnett, and Stephen Clarke Riley MacLean — all adopted children of Gordon Gale MacLean, a current income beneficiary of the Trust under Will and 1914 Trust — and Desiree Anee MacLean, the adopted daughter of Michael Gordon MacLean, a natural-born son of Gordon Gale MacLean.


author: JUSTICE HARTMAN

text:
    CONTINENTAL NATIONAL AMERICA INSURANCE COMPANY et al., Plaintiffs-Appellants, v. AETNA LIFE AND CASUALTY COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—1811
    Opinion filed August 1, 1989.

      Winston & Strawn, of Chicago (Paul P. Biebel, Jr., and Thomas R. Bear-rows, of counsel), for appellants.
    Cassiday, Schade & Gloor, of Chicago (D. Patterson Gloor and Michael G. Thomas, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

We are asked to review the issue of whether an insurance policy underwritten for the lessor of a truck, or a different insurance policy underwritten for the lessee of the truck, provides coverage for an accident involving the truck. An amended complaint for declaratory judgment and an amended counterclaim seeking the same relief brought this matter to issue, followed by a motion and cross-motion for summary judgment on the issue of which policy applied. The circuit court declared that both policies of insurance provided co-primary coverage for the truck’s lessor, lessee and driver. Plaintiffs/cross-defendants Continental National America Insurance Company and Glen E. Meyer Cartage Company (sometimes collectively CNA) appeal.

Plaintiff/cross-defendant Glen E. Meyer Cartage Company (Meyer) is an Illinois corporation engaged in the business of transporting “various materials” such as dirt, sand and gravel within Illinois. Defendant/counterplaintiff E Smith Cartage, Inc. (Smith), also an Illinois corporation, similarly transports “materials” within the State. On March 30, 1983, Smith and Meyer entered into a written agreement whereby Meyer leased to Smith a 1972 Mack truck for three years, and under which they agreed that for the “duration” of the lease the truck would remain in Smith’s “exclusive possession, control, use and responsibility during the periods the vehicle is operated by or for [Smith].” Another paragraph in the agreement obligated Smith to “maintain and provide insurance coverage for the protection of the public pursuant to the requirements of section 18 — 701 of the Illinois Motor Carrier of Property Law and the requirements of the Illinois Commerce Commission promulgated thereunder.” The lease further provided Smith with a Meyer employee, Junior Martin (Martin), to drive the truck.

On June 18, 1984, the leased truck, driven by Martin, collided with an automobile, fatally injuring the automobile’s driver, Michael McLeod (McLeod). The special administrator of McLeod’s estate filed a wrongful death claim in the circuit court of Cook County (McLeod or McLeod claim) and, in his amended complaint filed April 24, 1986, named Smith, Martin and Glenn E. Meyer, owner of Meyer, as defendants.

CNA, liability insurer for Meyer and Martin, filed a complaint on January 29, 1986, and on September 16, 1986, an amended complaint, for declaratory judgment. CNA, among other things, alleged: it tendered defense of McLeod to defendant/eounterplaintiff Aetna Casualty & Surety Company, liability insurer for Smith (sometimes collectively Aetna); Meyer “enjoyed liability coverage under [Smith’s] policy with Aetna”; and “Aetna was the primary insurer of the leased truck under the terms of the lease agreement and the insurance policies,” which Aetna denied and refused to defend McLeod. CNA requested that the circuit court declare Aetna the primary insurer, “obligated to defend *** Martin and Meyer in the suit brought by McLeod’s Administrator” and find CNA the excess insurer for purposes of the McLeod litigation.

Aetna answered the complaint and filed a counterclaim and an amended counterclaim for declaratory judgment in which the first count requested that the circuit court declare neither Martin nor Meyer qualified as insureds under the Aetna policy, relieving Aetna of any burden to defend or indemnify them against allegations raised in McLeod. In count II, Aetna sought a ruling that, with regard to McLeod: CNA and Aetna must bear equally the expenses incurred defending Smith; Meyer’s CNA policy obliges CNA to provide Meyer and Martin with primary coverage; and the Aetna policy purchased by Smith provides no coverage to Meyer.

CNA moved for summary judgment, to which Aetna responded and filed its own cross-motion for summary judgment. Aetna asked the circuit court in its motion to find CNA the primary insurer of Martin, Smith and Meyer for the McLeod claim. Each party subsequently filed replies in support of their motions and responses to the opposing parties’ objections.

The circuit court declared that “each carrier *** shall bear 50% of the expense involved in defending each defendant in the underlying action and each carrier shall bear 50% of any indemnification obligation which shall arise up to the limits of their respective policies of insurance.” CNA appeals.

CNA identifies error in the circuit court’s failure to find Aetna obligated to furnish primary coverage to Meyer, Martin and Smith in the McLeod claim and CNA responsible only for excess coverage.

The parties stipulated below to the material facts defining this case, including the operative clauses of the insurance contracts and the leasing arrangement between the insureds; this court may decide the issue, therefore, as a matter of law. Rockford Mutual Insurance Co. v. Schuppner (1989), 182 Ill. App. 3d 898, 902.

CNA initially asserts that Aetna must assume primary coverage because Meyer and Martin each qualify as an “insured” under the Aetna policy, pursuant to the provisions of Aetna’s “Who Is Insured” clause:

“2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow ***.
4. The owner or anyone else from whom you hire or borrow a covered auto which is not a trailer is an insured while the covered auto:
a. Is being used exclusively in your business, and
b. Is being used pursuant to operating rights granted to you by a public authority.”

That same policy, CNA continues, contains an “Other Insurance” clause, the emphasized terms of which bind Aetna to provide primary coverage for injuries resulting from use of a vehicle “hired or borrowed” by Smith:

“1. This policy’s liability coverage is primary for any covered auto while hired or borrowed by you and used exclusively in your business and pursuant to operating rights granted to you by a public authority. This policy’s liability coverage is excess over any other collectible insurance for any covered auto while hired or borrowed from you by another trucker.
3. Except as provided in Paragraphs 1 and 2 above, this policy provides primary insurance for any covered auto you own and excess insurance for any covered auto you don’t own.” (Emphasis added.)

CNA raises as well the “Other Insurance” provision in the CNA policy as proof that the leasing of trucks to others by Meyer requires CNA to provide merely excess insurance.

“1. This policy’s liability coverage is primary for any covered auto while hired or borrowed by you and used exclusively in your business and over a route or territory, if any, you are authorized to serve by public authority. This policy’s liability coverage is excess over any other collectible insurance for any covered auto while hired or borrowed from you by another trucker." (Emphasis added.)

CNA cites cases in which courts found that certain insurance contract provisions placed responsibility for public safety on the lessee to a lease agreement because the lessee actually controls the vehicle. CNA analogizes the Interstate Commerce Commission (ICC) regulations, which prompted these provisions, to sections of the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1987, ch. 95½, pars. 18c — 4901, 18c — 4904), requiring Illinois motor carriers to obtain insurance for the protection of the public, and pursuant to which Smith assumed the obligation to provide insurance under the lease. Allstate Insurance Co. v. General Fire & Casualty Co. (E.D. Pa. 1972), 348 F. Supp. 682, 685; Transport Indemnity Co. v. Carolina Casualty Insurance Co. (1982), 133 Ariz. 395, 405-06, 652 P.2d 134, 144-45. See also Mustang Transportation Co. v. Ryder Truck Lines, Inc. (E.D. Pa. 1981), 523 F. Supp. 1097,1105.

Aetna responds that CNA’s attempt to fix the parties’ responsibility through the lease term requiring Smith to obtain insurance improperly binds the insurance carriers to contractual obligations concluded between their insureds and third persons. (Carolina Casualty Insurance Co. v. Underwriters Insurance Co. (5th Cir. 1978), 569 F.2d 304, 313.) Instead, Aetna insists, this court must limit its consideration to the terms of the insurance contracts. In Occidental Fire & Casualty Co. v. International Insurance Co. (7th Cir. 1986), 804 F.2d 983, however, the Seventh Circuit interpreted trucker policies similar to the contracts at bar and concluded that the insurance policy issued to the lessor, extending excess coverage to any truck it leased, demonstrated that the insurance company anticipated, when it wrote the policy, the possibility its insured would enter into leasing agreements and the insureds’ lease did not alter the insurer’s contractual obligations “by collateral agreement.” (Occidental Fire & Casualty Co. v. International Insurance Co., 804 F.2d at 990 n.3.) Quoting Truck Insurance Exchange v. Liberty Mutual Insurance Co. (1981), 102 Ill. App. 3d 24, 26, 428 N.E.2d 1183, the court continued: “ ‘By its endorsements [the insurer] acknowledged that it was providing insurance pursuant to the lease. The respective policies, accompanying endorsements, and the lease so far as incorporated into the insurance contract, are construed together to determine the parties’ intention.’ ” (Emphasis added.) 804 F.2d at 990 n.3. See also Nowak v. Transport Indemnity Co. (1984), 120 Wis. 2d 635, 642-44, 358 N.W.2d 294, 298-99.

At bar, the contract between Smith and Meyer bound Meyer to lease “Equipment to [Smith] for [Smith’s] exclusive possession, control, use and responsibility during the periods the vehicle is operated by or for [Smith].” (Emphasis added.) “During,” as used here, Aetna contends, illustrates that Smith’s use, control and possession of the truck was not truly exclusive but rather subject at all times to interruption by Meyer. Indeed, another lease provision stated: “Nothing herein shall be construed as preventing [Meyer] from entering into a subsequent Lease of the same equipment during the duration of this Lease ***.” Aetna reinforces this conclusion by noting: the truck was “regularly” stored in Meyer’s garage during the lease term; Martin at all relevant times remained Meyer’s employee; Smith surrendered 90% of gross revenues earned through the truck’s use to Meyer; Meyer used the truck for its own business purposes “from time to time” during the lease period; and at the time of the accident, the truck bore the names of both companies, although only Smith’s Illinois Commerce Commission permit number was displayed on the vehicle and the truck operated by the authority of that number.

The “Other Insurance” provision of the Aetna policy, however, obligates Aetna to provide primary coverage only for “any covered auto while hired or borrowed by [Smith] and used exclusively in [Smith’s] business and pursuant to operating rights granted to [Smith] by a public authority.” CNA attempts to compare favorably the lease terms with the Aetna policy by reading the “Other Insurance” provision as “while being used exclusively in your business.” The word “while,” however, modifies only the phrase “hired or borrowed by you,” indicating Aetna’s duty to provide primary coverage arises only when Smith leases a truck which is used exclusively in Smith’s business, not subject to interruption by the lessor. The “and” separating “while hired or borrowed by you” and “used exclusively in your business” binds the phrases together, creating a relationship between them rather than an expression of separate elements, as though the phrases read “while hired or borrowed by you and while used exclusively in Smith’s business.” See Hailey v. County Board of School Trustees (1959), 21 Ill. App. 2d 105, 111-12, 157 N.E.2d 570.

This distinction is called into sharper relief when the “Other Insurance” provision quoted above is compared to the “Who is Insured” clause found in the same policy. Paragraph 4 includes as an insured the “owner or anyone else from whom” Smith leases a vehicle “while the covered auto:

a. Is being used exclusively in your business, and
b. Is being used pursuant to operating rights granted to you by a public authority.”

Although punctuation inserted in an insurance contract cannot be manipulated to alter the plain meaning of the text, rules of grammar may be consulted as an aid to construction to illumine the “true meaning of the language used.” (2 G. Couch, Cyclopedia of Insurance Law §15:13, at 156-57 (rev. ed. 1984).) The colon placed after “auto” incorporates all the elements enumerated thereafter (Lunt v. Aetna Life Insurance Co. (1925), 253 Mass. 610, 616, 149 N.E. 660, 662), so that the sentence also could be read as “while the covered auto is being used exclusively in your business and while the covered auto is being used pursuant to operating rights granted to you by a public authority.” The distinction between these provisions is clear. Aetna must indemnify as an insured the owner or permissive driver of an automobile for liability incurred while the vehicle is exclusively under Smith’s control, even if Smith does not enjoy singular control over the vehicle at every moment during the lease period. Aetna is obliged to extend primary coverage to that insured, however, only when Smith exclusively and continuously possesses, controls or uses the leased vehicle, throughout the lease term.

Because Aetna is not a “primary insurer” as contemplated in paragraph 1 of its “Other Insurance” provision, reference there must be made to paragraph 3 of that section, which reads:

“3. Except as provided in Paragraphs 1 and 2 above, this policy provides primary insurance for any covered auto you own and excess insurance for any covered auto you don’t own.” (Emphasis added.)

Aetna correctly concludes that, since Smith did not own the subject vehicle, it is required to supply only excess insurance upon entry of a judgment against its insured. CNA, however, is also liable merely for excess coverage pursuant to the similar “Other Insurance” clause found in the CNA policy. A loss covered solely by two excess carriers renders the “Other Insurance” provisions irreconcilable, concealing each provision and forcing the insurers to divide the liability equally between themselves. Transport Indemnity Co. v. Carolina Casualty Insurance Co., 652 P.2d at 140; Truck Insurance Exchange v. Liberty Mutual Insurance Co., 102 Ill. App. 3d at 26; Continental Casualty Co. v. Travelers Insurance Co. (1967), 84 Ill. App. 2d 200, 206-07, 228 N.E.2d 141.

Under the foregoing circumstances, the circuit court’s proration of responsibility on a 50-50 basis between Aetna and CNA was correct and must be affirmed.

Judgment affirmed.

SCARIANO and DiVITO, JJ., concur.

       Ill. Rev. Stat. 1983, ch. 951/2, par. 18 — 701 (current version at Ill. Rev. Stat. 1987, ch. 95½, par. 18c-4901).