author: JUSTICE NICKELS JUSTICE BOWMAN,

text:
    AMERICAN ENVIRONMENTAL, INC., Plaintiff, v. 3-J COMPANY, Defendant and Third-Party Plaintiff-Appellant (Jeff Blackburn, Defendant; Insurance Brokers Service, Inc., Third-Party Defendant-Appellee).
    Second District
    No. 2—90—1334
    Opinion filed December 11,1991.
    BOWMAN, J., dissenting.
    James E. O’Halloran,. Jr., and Kirk L. Miller, both of O’Halloran, Kosoff & Miller, P.C., of Northbrook (Clifford G. Kossof, of counsel), for appellant.
    Nick J. Digiovanni, Hugh C. Griffin, and Sandra K. Macauley, all of Lord, Bissell & Brook, and Raymond T. Reott, of Jenner & Block, both of Chicago (Sharon R. Patterson, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

This appeal is taken by 3-J Company (3-J) from the October 31, 1990, order of the circuit court of Du Page County which dismissed with prejudice 3-J’s second amended third-party complaint (third-party complaint) for breach of contract and breach of fiduciary duty against Insurance Brokers Service, Inc. (IBS). The underlying action was brought by American Environmental Construction, Inc. (American), the successor in interest to E & E Hauling, Inc. (E & E), against 3-J and Jeff Blackburn for fraud and negligent misrepresentation and breach of certain duties. For clarity purposes all references to American are synonymous with E & E. Although 3-J sets forth three issues, these can be summarized in one issue on appeal: whether 3-J’s third-party complaint against IBS states a cause of action.

Based on relevant allegations in American’s complaint against 3-J and Jeff Blackburn, American, a demolition company, had umbrella or excess liability insurance with Great American Surplus Lines Insurance Company (GASLIC). The insurance had been placed through Assurance Agency, Ltd., a division of 3-J. Blackburn was an insurance broker employed by Assurance. Under GASLIC endorsement No. 8, American was required to notify GASLIC prior to the beginning of any demolition project involving a structure in excess of 4 stories or 40 feet in height, whichever was less. GASLIC could decline coverage for the project.

Late in August 1986, American entered into a contract with Continental Illinois National Bank and Trust Company (Continental) for the demolition of two buildings exceeding the GASLIC height restrictions. The contract required American to provide written verification to Continental of American’s excess liability insurance in the amount of $15 million. American asked 3-J to secure coverage verification from GASLIC as soon as possible. American sent written notification to GASLIC about the project on August 25, 1986. On August 28, 1986, American received a copy of a report sent by 3-J to the reinsurers under the GASLIC policy. The report described the project. (The report indicates a copy went to IBS.)

3-J continued to assure American that approval of insurance coverage could be expected in a matter of days. American told 3-J on September 3, 1986, that Continental required coverage verification by September 5, 1986. 3-J sent a letter to Continental on September 3, 1986, informing it that insurance coverage should be available by September 5, 1986. 3-J told American on September 4, 1986, that 3-J would probably not be able to complete the paper work in time. On September 5, 1986, Continental contacted 3-J and learned that GASLIC was not insuring the project and that 3-J was unable to secure sufficient alternate insurance coverage.

Later on September 5, 1986, 3-J told American that it could provide only $8 million in excess liability insurance for an additional premium of $200,000 over and above the premiums on the GASLIC policy. American began searching for alternate insurance coverage on September 5, 1986. 3-J informed American on September 8, 1986, that it had secured only $3 million in alternate coverage rather than $8 million. On September 11, 1986, 3-J admitted it could not secure alternate coverage, and American began searching on its own. Another insurance broker notified American that a $14 million umbrella liability policy (American earlier offered to provide the first $1 million as self-insurer) could be obtained for a $40,000,premium. When American contacted Continental it had already secured another demolition company for the project.

American’s count IV alleged 3-J owed it a duty of good faith and fair dealing. This duty was breached by 3-J’s conduct by not obtaining requested coverage; not informing American of the inadequacy of coverage; not promptly notifying American of 3-J’s inability to obtain coverage and trying to force American to purchase additional insurance at rates substantially above market price. Breach of this duty proximately caused American economic loss, and American sought $2,500,000 in damages.

3-J filed the instant third-party complaint after two previous ones had been dismissed. It alleged that it did not normally solicit insurance quotations from excess liability insurers and IBS held itself out as a broker who could procure this insurance. A course of dealing was described whereby 3-J engaged IBS as its broker on prior occasions to procure insurance coverage. 3-J alleged that IBS and 3-J knew and understood certain things when IBS acted as 3-J’s broker. These were: IBS would use its best efforts to obtain insurance quotations; to bind coverage as requested by 3-J; notify 3-J promptly if it could not obtain coverage; transmit notices to insurers from 3-J or 3-J’s customers; and, if requested by 3-J, obtain timely replacement coverage. It was alleged that no written contract existed between 3-J and IBS.

It was alleged that when 3-J procured umbrella insurance coverage for American in 1985, it engaged IBS to obtain quotations. IBS transmitted a GASLIC quotation to 3-J, and 3-J transmitted it to American. When American accepted, 3-J transmitted the coverage request to IBS. IBS bound coverage with GASLIC and delivered the policy (for American) to 3-J. IBS was compensated. This procedure was followed for American’s renewal of the GASLIC policy.

On August 20 or 21, 1986, 3-J telephoned IBS with information received from American about American’s bid on the Continental project. 3-J informed IBS that the buildings exceeded the height restrictions in the policy and that work was beginning in 15 days. IBS requested more information about the project for GASLIC. 3-J contacted American for the information. 3-J forwarded the information to IBS on August 27, 1986. Two days later (August 29, 1986), IBS told 3-J that GASLIC might not provide coverage for the project or might only cover it for an increased premium charge. 3-J asked IBS if excess liability coverage for the project could otherwise be obtained for American. IBS stated that it did not know where such coverage could be obtained. 3-J alleged that upon information and belief, IBS did not thereafter attempt to obtain coverage from any other insurer except GASLIC.

In count I, 3-J alleged that a contract existed between 3-J and IBS based on these allegations. It was alleged IBS breached the contract. In count II 3-J alleged that IBS was its agent based on these allegations and that IBS owed certain duties to 3-J. IBS breached these duties according to 3-J. 3-J alleged in both counts that if it was determined that it breached any obligation owed to American such breach was caused by IBS’ failure to procure insurance for American in a timely manner. 3-J asked that a judgment be entered against IBS to the extent IBS’ breach caused 3-J to be liable to American in the event a judgment for American was entered against 3-J.

The trial court dismissed with prejudice the (second amended) third-party complaint pursuant to IBS’ section 2 — 615 motion. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) 3-J filed a timely notice of appeal.

Before considering the appeal on the merits, we find it necessary to address a number of points. 3-J’s issues and arguments "are based in part on its assumption that the trial court dismissed its third-party complaint for failure to allege sufficient facts to establish an agency relationship. It also claims that the trial court found as a matter of law that IBS was not 3-J’s agent. However, there are no specific findings in the section 2 — 615 dismissal order, and the order may be sustained on any basis found in the record regardless of what led the trial court to its conclusion. (Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776.) It "is the judgment that is on appeal and not what else may have been said by the lower court. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382.) Thus, the issue on appeal is whether the third-party complaint was properly dismissed for failure to state a cause of action.

3-J used the same allegations to allege a contract existed between it and IBS in count I and an agency relationship in count II. From its argument on appeal, 3-J apparently intended to allege a contract of agency in count I. 3-J centers its arguments on the alleged breach of fiduciary duties by IBS and has combined counts I and II for purposes of its arguments on appeal. Therefore, we consider only whether the third-party complaint stated a cause of action under either count based upon an alleged agency relationship or contract of agency between 3-J and IBS.

It is also noted that 3-J seeks recovery from IBS only to the extent that IBS’ alleged actions relate to alternative insurance coverage for American for the Continental project. This position was taken by 3-J before the trial court and stated in its oral argument before this court. Furthermore, 3-J refers to all four counts of American’s complaint against 3-J in its brief and argues that IBS is liable to 3-J as a subagent. In its response to IBS’ motion to dismiss and at the hearing on the motion below, 3-J stated it sought recovery from IBS only to the extent 3-J was liable to American under count IV. A theory upon which a case is presented to the trial court cannot be changed on review, and an issue not represented to or considered by the trial court cannot be raised for the first time on appeal. (See Cosentino v. Price (1985), 136 Ill. App. 3d 490.) Therefore, we consider only American’s count IV as it relates to 3-J’s arguments.

Lastly, 3-J stated during oral argument before this court that its third-party complaint is not based on indemnity. It also referred to IBS’ negligence. We have examined the third-party complaint and 3-J’s arguments on appeal. 3-J’s action against IBS involves implied indemnity based upon an alleged breach of fiduciary duties. See People ex rel. Hartigan v. Community Hospital (1989), 189 Ill. App. 3d 206.

In its brief 3-J claims that under the Restatement (Second) of Agency a subagent has a duty to indemnify the agent for conduct which is wrongful to the agent and for which the agent is liable to the principal. (Restatement (Second) of Agency §428 (1958).) 3-J argues that (implied) indemnity of IBS as a subagent would be consistent with Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, because respondeat superior is applicable. It refers to the fact that Frazer expressed no opinion of the viability of implied indemnity involving vicarious liability such as between a principal and an agent. (Cf. American National Bank & Trust Co. v. Bransfield (1991), 216 Ill. App. 3d 494 (it was determined that the Contribution Act superseded implied indemnity actions for vicarious liability of a principal for an agent).) Therefore, it believes it has a viable cause of action.

The problem with 3-J’s argument is that Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, and earlier cases such as Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, have limited the scope of implied tort liability indemnification. (People ex rel. Hartigan, 189 Ill. App. 3d at 216.) Bransfield concerns the tortious acts of an agent. These cases involve the effects of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) on implied indemnity. The Contribution Act concerns tort-feasors.

An action for breach of fiduciary duty is not a “tort” for purposes of the Contribution Act. (People ex rel. Hartigan, 189 Ill. App. 3d at 213; accord Giordano v. Morgan (1990), 197 Ill. App. 3d 543, 549.) One liable for breach of a fiduciary duty is not liable in tort, but such an action is controlled by the substantive laws of agency, contract and equity. (Giordano, 197 Ill. App. 3d at 549; see Kinzer v. City of Chicago (1989), 128 Ill. 2d 437.) Nothing in the decisions which have limited the scope of implied tort liability indemnification has been held to eliminate the viability of implied nontort indemnification in this State. (People ex rel. Hartigan, 189 Ill. App. 3d at 216.) 3-J seeks implied indemnity based upon breach of fiduciary duty (and contract). The underlying action, American’s count IV, concerns breach of fiduciary duty by 3-J. Therefore, Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, and the question of implied tort liability indemnification are not relevant to dismissal of the third-party complaint.

Turning to the issue on appeal, all facts properly pleaded in a complaint are accepted as true, and all reasonable inferences are drawn in favor of the nonmovant upon a motion to dismiss. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428.) The pleading of conclusions alone will not- suffice for the factual allegations upon which a cause of action must be based. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497.) If the complaint does not state a cause of action, that deficiency may not be cured by liberal construction or argument. (Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281.) In determining the sufficiency of the dismissed complaint, we must apply the rule that no cause of action should be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover. (Board of Education, 131 Ill. 2d at 438; Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502; see Miller v. DeWitt (1967), 37 Ill. 2d 273.) While this broad statement is generally correct, it should not be construed as an adoption of notice pleading. (Board of Education, 131 Ill. 2d at 438.) The granting of a motion to dismiss is within the sound discretion of the trial court. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407.

Relying upon Geocaris v. Bangs (1968), 91 Ill. App. 2d 81, 3-J claims that a special rule exists in determining whether its third-party complaint should have been dismissed. It asserts that the third-party complaint need only show a possibility of recovery and need not establish an absolute right to recovery. (Geocaris, 91 Ill. App. 2d at 87.) While this general statement of law is correct, we note that it is not reserved for third-party complaints. (See, e.g., Carrillo v. Jam Productions, Ltd. (1988), 173 Ill. App. 3d 693; Thomas v. Zamberletti (1985), 134 Ill. App. 3d 387.) Regardless of this fact, a third-party complaint will be dismissed if it fails to state a cause of action. (Village of Crainville v. Argonaut Insurance Co. (1980), 81 Ill. 2d 399; Burke v. Sky Climber, Inc. (1974), 57 Ill. 2d 542.) Liberality of pleading will not relieve the necessity that a complaint (or third-party complaint) contain sufficient, factual averments and set out every fact essential to be proved. See In re Beatty (1987), 118 Ill. 2d 489.

3-J contends that it pleaded sufficient facts to allege a contract of agency existed between itself and IBS. Contrary to IBS’ argument, 3-J points out that an agency relationship need not be based upon an express appointment and acceptance. (Milwaukee Mutual Insurance Co. v. Wessels (1983), 114; Ill. App. 3d 746.) According to 3-J the relationship may be established by circumstantial evidence based upon an examination of the situation of the parties, their acts, and other relevant circumstances. (Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167.) 3-J asserts that the existence and scope of an agency relationship are questions of fact for the trier of fact. (Stefani, 157 Ill. App. 3d at 171; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21.) 3-J relies on Estergard, Eberhardt & Ackerman, Inc. v. Carragher (1982), 105 Ill. App. 3d 816, as a case which demonstrates that agency should not be determined as a matter of law. However, Estergard did not involve a motion to dismiss for failure to state a cause of action but was an appeal from a judgment following a bench trial.

Although 3-J relies on the principle that the existence and extent of an agency relationship may be established by circumstantial evidence, this principle does not free 3-J of its obligation to allege specific facts in support of its claim. (H P I Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145.) 3-J must allege specific facts regarding the circumstances of the situation from which the existence of the (agency) relationship can be inferred. (H P I Health Care Services, Inc., 131 Ill. 2d at 163; see Enslen v. Village of Lombard (1984), 128 Ill. App. 3d 531.) The existence of an agency relationship generally is a question of fact; however, the complaint must contain factual allegations of every fact which must be proved in order to be entitled to judgment on the complaint. (See In re Beatty, 118 Ill. 2d at 499.) A judgment cannot be rendered on facts demonstrated by evidence at trial unless those facts shown were alleged in the complaint. In re Beatty, 118 Ill. 2d at 499.

3-J further posits that there is an interrelationship between its third-party complaint and American’s complaint against 3-J. It claims that certain reasonable inferences can be drawn based on its allegations against IBS and American’s allegations against 3-J. A copy of American’s complaint was attached to the third-party complaint and “made a part” thereof as an exhibit. In essence 3-J asserts that the third-party complaint states a cause of action if considered with the underlying complaint. While 3-J has provided no citation of authority, there is case law which supports the argument that the underlying American complaint can be considered in determining the sufficiency of 3-J’s third-party complaint. Rome, 81 Ill. App. 3d 776; Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387.

An agency relationship is a fiduciary one. (Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 80.) An attorney, broker, auctioneer, and other persons similarly employed for a single transaction or for a series of transactions are agents, although as to their physical activities they are independent contractors. (Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682.) An insurance broker’s employment in each case is that of a special agent for a single objective. (Penrod, 68 Ill. App. 3d at 80.) Once the limited purpose of the broker’s agency is accomplished, the broker no longer owes any on-going fiduciary duty to the ex-principal. (Penrod, 68 Ill. App. 3d at 80.) Whether the relationship has ceased is a question of fact; however, a complaint must still allege specific facts regarding the circumstances from which the existence of the relationship can be inferred in order to survive a motion to dismiss. See H P I Health Care Services, Inc., 131 Ill. 2d at 163.

Based upon the allegations in the third-party complaint, 3-J and IBS had an agency relationship in the past on a per-customer basis limited to the procurement of insurance. 3-J alleged sufficient facts to show that IBS acted as its agent for the limited objective of procuring and renewing the GASUC policy for American. However, no issue is before this court concerning any breaches of duty by BBS for these matters.

There were sufficient allegations to raise a factual question as to whether the agency relationship between 3-J and IBS began anew with respect to the Continental project. The allegations indicate that 3-J contacted and dealt with BBS for the limited purpose of securing coverage under endorsement No. 8 of the GASLIC policy. On August 29, 1986, 3-J first asked IBS if excess liability coverage for the project could otherwise be obtained for American. However, there are no factual allegations that prior to August 29, 1986, 3-J requested IBS to quote and/or procure alternative coverage for American. By 3-J’s own statement in paragraph No. 7 of the third-party complaint, IBS was to obtain timely replacement coverage upon 3-J’s request. There are no factual allegations to show that IBS was required to procure replacement insurance at the time 3-J “engaged” IBS to obtain an extension of coverage from GASLIC under endorsement No. 8 of the GASLIC policy.

Since an agency relationship was sufficiently alleged with respect to the GASLIC policy, IBS owed 3-J fiduciary duties. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 630.) IBS was required to make known to 3-J all material facts within its knowledge which may affect the transaction and the subject matter of its agency. (Protective Insurance, 144 Ill. App. 3d at 694.) IBS owed a duty not to mislead 3-J. (See Estergard, 105 Ill. App. 3d 816.) Inherent in the obligation to seek coverage under the GASLIC policy was the duty to notify 3-J if GASLIC declined to insure the risk so that 3-J would not be lulled into a feeling of security or suffer prejudicial delay in seeking coverage elsewhere. See Talbot v. County Life Insurance Co. (1973), 8 Ill. App. 3d 1062.

There were no allegations of fact to indicate that IBS breached any duty with respect to obtaining coverage under the GASLIC policy for the Continental project. Indeed, 3-J does not argue that any breach occurred with respect to IBS’ actions on the GASLIC coverage. Rather 3-J claims that IBS breached fiduciary duties in failing to procure replacement insurance for American. During oral argument 3-J further clarified that said breach occurred on August 29, 1986, when IBS told 3-J it did not know where alternative coverage could be obtained.

3-J makes certain statements in its initial brief and reply brief concerning various conclusions. However, the third-party complaint does not allege sufficient facts to support the conclusions, and, therefore, they are not considered in determining the sufficiency of the third-party complaint. These unsupported conclusions are: all 3-J’s communications to and from GASLIC were through IBS; all approaches to all excess lines insurers were through IBS; 3-J was “forced” to use an excess lines broker, IBS; 3-J Was totally reliant on IBS to access GASLIC and other excess insurance markets and locate coverage for American; and IBS was fully aware of the need to replace GASLIC if GASLIC refused coverage. The only statement in the third-party complaint is that 3-J did “not normally solicit such quotations from such companies,” and that IBS “holds itself out to be a broker who can procure such coverages.” These statements do not support the conclusions reached by 3-J, nor can any reasonable inference be drawn from it to support 3-J’s statements.

3-J fails to allege even in a conclusional fashion what breach of fiduciary duty occurred or when with respect to alternative coverage. 3-J concedes that paragraph No. 21 “somewhat misses the point.” Paragraph No. 21 alleged that based upon information and belief IBS did not attempt to obtain alternative coverage thereafter (August 29, 1986). 3-J claims a reasonable inference can be drawn that IBS had attempted to find alternative coverage from IBS’ statement to 3-J on August 29, 1986, that it did not know where such coverage could be obtained. 3-J also argues that reasonable inferences can be drawn from American’s complaint wherein it was alleged that alternative coverage was available at a lower premium. These inferences are that IBS did not search the market prior to its response to 3-J or that it did, but withheld information.

Reasonable inferences may be drawn from properly pleaded facts. (Board, of Education, 131 Ill. 2d 428.) The third-party complaint does not allege what, if anything, 3-J understood by IBS’ answer. There are no factual allegations that IBS had been requested or was in any manner required to look for alternative coverage prior to 3-J’s question to it. No reasonable inference can be drawn that IBS had looked for other coverage and found none.

Assuming that an inference could be drawn that IBS did not search the markets based on American’s complaint, there are no factual allegations to indicate that this failure was a breach of duty. An inference may already be drawn that IBS did not look for replacement coverage based on its answer to 3-J. There are no facts alleged that show IBS was requested or required in any way to look and/or obtain replacement coverage. There are insufficient allegations to support an inference that IBS withheld information. There are no allegations that 3-J relied on IBS’ statement as it argues in its reply brief. Nor were there any allegations to support 3-J’s claim that it relied on IBS’ response as a representation that IBS was so cognizant of the markets that searching was unnecessary.

Relying on American’s complaint, 3-J claims a reasonable inference can be drawn that it was lulled into a sense of security and caused prejudicial delay by IBS’ representation. 3-J claims it was nothing more than a conduit through which information passed between American and IBS.

Based on the third-party complaint, there are no allegations of further contact between 3-J and IBS after August 29, 1986. There are no facts alleged that would indicate that the information 3-J gave American after August 29, 1986, came from IBS. There are no allegations that 3-J relied on IBS’ statement in order to be lulled into a sense of security.

A reading of American’s complaint with 3-J’s third-party complaint shows that although 3-J was aware on August 29, 1986, that GASLIC probably would not cover the project, 3-J failed to inform American of that fact. On September 3, 1986, 3-J told Continental that (GASLIC) approval was delayed but would be available by September 5, 1986. Assuming that 3-J understood IBS’ August 29, 1986, statement to mean no alternative coverage was available as it contends, 3-J failed to tell American this information. Based on American’s complaint 3-J told Continental Bank this information on September 5, 1986, seven days after IBS’ answer to 3-J. American began looking for other coverage on September 5, 1986, and located other coverage within six days. These allegations do not support 3-J’s claim that a reasonable inference can be drawn that it was lulled into a sense of security and caused prejudicial delay by IBS’ representation. There are insufficient factual allegations to give rise to the inferences 3-J claims exist.

3-J has failed to allege sufficient factual allegations to state a cause of action against IBS. (In re Beatty, 118 Ill. 2d at 499.) It relies on inferences which are not supported by properly pleaded facts. (Board of Education, 131 Ill. 2d at 438.) It argues conclusions which are not supported by factual allegations. (Adkins, 129 Ill. 2d at 520.) The trial court did not abuse its discretion in dismissing the third-party complaint with prejudice. Knox, 88 Ill. 2d at 422.

3-J requests in its conclusion that this court remand for the purpose of allowing it to file a third amended third-party complaint if the second amended third-party complaint is not reinstated on appeal. IBS points out that 3-J has waived this request by failing to ask leave to amend before the trial court prior to its order. (See Bell v. Yale Development Co. (1981), 102 Ill. App. 3d 108.) 3-J replies by noting that the trial court’s October 31, 1991, order contrasted with its earlier orders that 3-J could file amended pleadings. The fact the trial court allowed 3-J earlier opportunities to state a cause of action does not mean that 3-J would have endless attempts to state a cause of action. In any event, if the facts alleged do not state a cause of action, a complaint should be dismissed, and it is no answer that facts other than those alleged might be shown that would support an amended complaint. Loehr v. Illinois Bell Telephone Co. (1974), 21 Ill. App. 3d 555.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, J., concurs.

JUSTICE BOWMAN,

dissenting:

The majority holds that 3-J failed to state a cause of action in that it did not adequately allege a breach of fiduciary duty by IBS. The linchpin of the majority opinion is that there are no factual allegations that, prior to August 29, 1986, 3-J requested IBS to “quote and/or procure alternative coverage for American.” Contrary to the opinion of my colleagues, I believe the third-party complaint does set forth such allegations. Accordingly, I dissent.

3-J’s third-party complaint, in summary, alleges the following: that prior to July 17, 1984, 3-J, on more than one occasion, engaged IBS as an insurance broker in obtaining price quotations from excess liability insurance companies for 3-J’s customers; that 3-J does not normally solicit such quotations, and IBS holds itself out as a broker who can procure such coverage; if a policy issued to 3-J’s customer based on IBS' service to 3-J, IBS and 3-J would share the commission paid by the issuing company; that IBS understood that it would use its best efforts to obtain quotes on the cost of requested coverage and that it would promptly notify 3-J if it could not obtain the customer’s required coverage; that IBS would process transmittals from 3-J or the insured to the insurer and would obtain timely replacement coverage for 3-J’s customers; that prior to July 17, 1985, IBS agreed to, and did at 3-J’s request, procure excess liability coverage through GASLIC for 3-J’s customer, E & E; that pursuant to the requirements of the GASLIC policy, 3-J requested IBS to inform GASLIC that E & E was bidding a demolition project for the Continental Bank; IBS requested from 3-J additional information on the Continental project bid and subsequently informed 3-J that GASLIC might not insure the Continental project or might insure only for an increased premium charge; 3-J asked IBS if the insurance coverage for the Continental project could be otherwise obtained for E & E; IBS stated to 3-J in response that IBS did not know where such coverage could be obtained; that on information and belief, IBS did not, as an insurance broker for 3-J, attempt to obtain excess liability coverage for the Continental project from any insurer other than GASLIC; and that IBS breached its oral contractual obligation to procure on a timely basis the insurance coverage requested by E & E and, as 3-J’s insurance broker, failed to exercise reasonable care, ordinary diligence and reasonable promptness in procuring such coverage. American’s complaint against 3-J and the GASLIC insurance policy were attached as exhibits to the 3-J third-party complaint and incorporated thereby by reference. American’s complaint states that E & E requested to obtain, within 15 days, $15 million excess liability insurance coverage as a bid requirement for the Continental project.

The majority opinion admits that sufficient allegations were pleaded to raise a factual question as to whether the agency between 3-J and IBS began anew with respect to the Continental project. Specifically, the opinion notes the allegations which indicate that 3-J contacted IBS for the purpose of securing coverage under endorsement No. 8 of the GASLIC policy. The majority then concludes that there are no factual allegations that prior to August 29, 1986, 3-J requested that IBS “quote and/or procure alternate coverage for American.” To reach this result, the general business relationship history between 3-J and IBS and the specific history relating to the acquisition of American’s policy with GASLIC, as established by the facts set forth in 3-J’s third-party complaint, including the exhibits incorporated therein by reference, must be ignored. Specifically, the majority ignores the fact that 3-J asked IBS if excess liability coverage for the project could otherwise be obtained for American. Accepting this fact as true and drawing all reasonable inferences in favor of 3-J (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438), it follows that the scope of the agency relationship between 3-J and IBS reasonably includes the obligation of IBS to search the excess liability insurance market for coverage of the Continental project. Consequently, it cannot be said that no set of facts can be proved which will entitle 3-J to recover. (Board of Education, 131 Ill. 2d at 438.) An agent must see that he meets the responsibility of his position and does not take any advantage, either for his own personal gain or to injury of the person he represents. Head v. Wood (1959), 20 Ill. App. 2d 97,106.

I submit that the allegations regarding the business history between 3-J and IBS, when coupled with the alleged specific inquiry as to whether insurance coverage for the Continental project was otherwise available, were sufficient to set forth the element of an agency relationship and a fiduciary duty on the part of IBS to timely search the market for such coverage.

For the reasons stated, I would reverse the trial court’s judgment dismissing 3-J’s third-party complaint.


source: Caselaw Access Project

author: JUSTICE McCORMICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK SANTIAGO, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—1615
    Opinion filed November 12,1991.

      David S. Mejia, of Oak Park, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Kenneth T. McCurry, and David Meyerson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant was arrested and charged with the murder of Margarita Davila. Prior to trial, defendant filed a motion to suppress his oral statement and a motion in limine to preclude the State from admitting the statement into evidence.

In the motion to suppress, defendant alleged that he had been drinking at the time of his arrest and that he was so intoxicated that he was unable to voluntarily answer any questions posed to him by the arresting officers or the assistant State’s Attorney. In the motion in limine, defendant alleged that by refusing his defense counsel’s request that defendant be given a breathalyzer exam shortly after his arrest, the assistant State’s Attorney prejudiced defendant’s ability to corroborate and confirm his claim that he was intoxicated at the time he made his oral statement. Defendant asserted that, therefore, the State should not be allowed to use the statement against him.

At the hearing on defendant’s motion, the State called Chicago police officers Kenneth Trempe, John Enault, and Richard Schak as witnesses. Officer Trempe testified that on the evening of April 18, 1987, he arrested defendant at a bar located at 2525 West Division in Chicago and took him to the 14th District police station. Trempe testified that he advised defendant of his Miranda rights at the time of his arrest and that defendant indicated that he understood and that defendant did not make a statement at that time.

Officers Enault and Schak testified that they later transported defendant from the 14th District police station to Area 5 violent crimes. Enault testified that he advised defendant of his Miranda rights after placing him in a police car at the 14th District station and that defendant responded that he understood them. Schak testified he also advised defendant of his Miranda rights after placing defendant in an interview room at Area 5 and that defendant indicated that he wanted to make a statement at that time.

Officers Trempe, Enault, and Schak all testified that defendant appeared sober, he was not disheveled and had no difficulty walking or talking, his eyes were not bloodshot, and they did not notice an odor of alcohol on him. They all also testified that after they advised defendant of his rights, he asked them several questions.

Bruce Edenson was called on behalf of defendant. Edenson, a friend of Marvin Leavitt, defendant’s attorney, testified that on the night of April 18 he accompanied Leavitt to an address on West Division Street in Chicago, where they picked up Sally Rivera. The three then drove to a police station where they observed defendant being led into an interview room. Edenson stated that he was six to seven feet away from defendant at the time and that defendant appeared to be drunk.

According to Edenson, defendant was swaying and staggering, his eyes were very bloodshot, and there was an odor of alcohol on his breath or his person. Edenson testified that Leavitt requested that a breathalyzer test be performed on defendant, but an assistant State’s Attorney refused to conduct the test.

Sally Rivera testified that she was a legal secretary and that she and her husband owned the bar where defendant was arrested. Rivera also testified that defendant was a friend of her husband, that she had known defendant for four or five years and that her brother was an associate at Leavitt’s law firm.

Rivera testified that on the evening of April 18, defendant came into her bar around 10:30 p.m. and that he appeared to be drunk. Rivera stated that defendant told her that he had had a fight with his wife and that he had a gun. After taking the gun from defendant, Rivera drove to where defendant used to live, saw several police officers, and returned to the bar. Defendant was no longer at the bar when she returned, so Rivera went to her home, where she telephoned Leavitt. Leavitt later arrived at Rivera’s home, along with Bruce Edenson, and the three drove to the police station.

At the station, Rivera saw defendant as he was being moved from one room to another. Rivera testified that defendant still appeared to be drunk at that time. Rivera further testified that she heard Leavitt request that a breathalyzer test be performed but that she did not believe that the test was done.

After the defense rested, it was stipulated that if Assistant State’s Attorney Jack Bailey was called as a witness, he would testify that he spoke with Leavitt in the early morning hours of April 19 and that Leavitt requested that a breathalyzer test be conducted on defendant. It was further stipulated that Bailey would testify that he responded that he would call his supervisor for permission and that shortly thereafter he indicated that he did not have authority and that the test would not be administered. It was also stipulated that Bailey would testify that, in his opinion, defendant was not under the influence of alcohol.

Following arguments, the trial court denied both of defendant’s motions. The trial court found that while defendant may have been under the influence of alcohol at the time of his arrest, it did not appear that defendant was so intoxicated that he was unable to understand the Miranda warnings given by the police. Therefore, the court concluded that the State had met its burden of proving that defendant’s statement was voluntary.

The trial court also found that despite defense counsel’s request, the police had no obligation to give defendant a breathalyzer test. The court noted that at trial, defendant would be able to bring out the refusal to give the test as a factor in determining the weight to be given defendant’s statement.

At trial, the State’s first witness was Adalberto Beltran, the boyfriend of Miriam Devalle. Devalle was the daughter of Margarita Davila.

Beltran testified that on the evening of Friday, April 17, 1987, he was at Davila’s apartment along with Devalle, Davila, and Davila’s sister, Marisella Davila. Defendant arrived at the apartment shortly after Beltran, bringing with him a bottle of rum. According to Beltran, defendant had previously shared the apartment with Davila, and on that evening, he repeatedly told Davila that he wanted to come back.

Beltran further testified that the next morning, April 18, 1987, he made plans to take Davila and Devalle to dinner that evening. When Beltran arrived at Davila’s apartment around 7 p.m., Devalle was present, but Davila was not. Defendant arrived an hour later and Davila a short time after that. When Davila arrived, defendant once again began telling her that he wanted to return to the apartment. Beltran also testified that defendant told Davila that “if she wasn’t his she was going to be nobody’s.”

Beltran stated that around 9 p.m., defendant grabbed the bottle he had brought the previous evening and attempted to take a drink. Davila told defendant not to drink in the apartment and attempted to take the bottle away from him. Davila then told defendant to leave the apartment, and defendant asked her why she wanted him to leave.

According to Beltran, defendant then told Davila “you don’t mess around with me,” pulled out a gun, placed it on the side of Davila’s face, and shot her three times.

On cross-examination, Beltran denied that prior to the shooting, Davila told defendant that she did not love him and that she was seeing another man. Beltran also denied telling a police officer that defendant and Davila had argued over “infidelity.”

Officer Kenneth Trempe was the State’s next witness. Trempe testified that he arrested defendant at approximately 10:45 p.m. on the evening of the shooting, that he advised defendant of his Miranda rights and that defendant did not appear to be under the influence of alcohol at the time of his arrest.

Detective Richard Schak also testified on behalf of the State. Schak testified that after defendant arrived at the police station, he advised defendant of his Miranda rights and that defendant agreed to make a statement. According to Schak, defendant stated that he had gone to Davila’s home in an effort to try to convince her that they should get back together and that Davila told defendant that she did not want to get back together with him. Defendant told Schak that when he reached to take a bottle of liquor from the kitchen counter, Davila grabbed the bottle and told him to get out of her apartment and not to come back. Defendant stated that he then reached into his hip pocket, pulled out a gun, and shot Davila in the head.

Schak testified that defendant never stated that he shot Davila because she told him that she was seeing another man. Schak further testified that defendant did not appear to be under the influence of alcohol at the time he made the statement.

The State’s last witness was Dr. Edmond Donoghue, a forensic pathologist, who testified that he performed the autopsy on Davila. Dr. Donoghue testified that Davila suffered three gunshot wounds: one to the back of the head, one to the left side of the jaw, and one to the left side of the neck. According to Dr. Donoghue, the wounds to the back of the head and the left side of the jaw were contact wounds, meaning that at the time of firing, the gun was touching the skin. Dr. Donoghue also testified that the third wound showed evidence of near contact firing.

The defendant’s first witness was Officer Sheila Magnus. Magnus testified that she was one of the officers who was called to the scene of the shooting. Magnus further testified that Beltran told her that, just prior to the shooting, defendant had accused Davila of cheating on him.

Defendant’s next witness, Sally Rivera, testified that about 10:15 p.m., on April 18, 1987, defendant came into her bar and told her that he needed to talk to her. Rivera stated that defendant appeared to be drunk when he approached her.

Rivera testified that she took defendant to a quiet spot in the bar where he told her that he thought he had shot his wife. Rivera told defendant that she did not believe him and asked to see the gun. Defendant took out the gun and gave it to Rivera. Rivera then left the bar and went to her home, where she telephoned Marvin Leavitt, defendant’s attorney. Rivera then went to Davila’s home, where a police officer told her that Davila had been killed.

Rivera returned to her home, where she again telephoned Leavitt. A short time later, Leavitt and Bruce Edenson picked up Rivera at her home and drove with her to the police station where she turned in the gun.

Rivera testified that she saw defendant while she was at the police station, and that defendant appeared to be in a daze and seemed to be in the same condition he was in when he walked into her bar.

Defendant testified in his own behalf. He stated that he met Davila in 1975 and that the two had lived together for 10 or 12 years. Defendant further testified that in 1985, Davila asked him to move out of the apartment they shared because of his drinking. According to defendant, he continued to have a relationship with Davila after he moved out of the apartment.

Defendant denied being at Davila’s apartment on the evening of April 17, 1987. However, he testified that he was at the apartment the previous evening and that he spent the night there.

Defendant further testified that on the morning of April 18, he got up at 7 a.m. and went to a bar where he remained until 3 p.m. During that time, he consumed 10 to 12 beers and five or six hard drinks. Defendant then went to a restaurant where he ate lunch and had two more drinks. After leaving the restaurant, he went to Davila’s apartment. Defendant testified that he had a gun with him when he went to the apartment and that he carried the gun frequently because he was “afraid of the streets.”

Defendant testified that Davila, Devalle, and Devalle’s boyfriend were present when he arrived at Davila’s apartment. After speaking to Davila, defendant went into her bedroom, where he fell asleep for about two hours. When defendant awoke he began talking to Davila about returning home, and she responded that she did not want him there because of his drinking. Defendant testified that he decided to leave but that before leaving he wanted to have a drink.

Defendant testified that when he picked up the bottle he had brought to the apartment two days earlier, Davila grabbed at it, slapped him, pushed him into a chair, spit in his face, and began insulting him, telling him that she was seeing another man who was a better lover than him. Defendant stated that when he heard Davila’s words, he felt a pain in his chest and took out his gun. According to defendant, when Davila saw the gun she screamed “kill me.” Defendant shot Davila and then left the apartment.

Defendant testified that after the shooting, he went to several bars where he continued to drink. Eventually, he arrived at the bar owned by Rivera, where he was arrested. Defendant stated that he had no memory of any of the discussions he had with the police following his arrest.

Miriam Devalle was called by the State in rebuttal. She testified that she was present in the apartment the night of the shooting, that Davila did not spit on or push defendant and that Davila did not insult defendant or tell .him that she had a better lover. Devalle also testified that before the shooting, Davila repeatedly asked defendant to leave the apartment and that defendant told Davila that if he could not have her no one would.

Also called in rebuttal was Marisella Davila, Margarita Davila’s sister. Marisella Davila testified that she too was in the apartment at the time of the shooting and that she heard her sister ask defendant to leave but that she did not hear her sister insult defendant or call him names.

After closing arguments, the jury was instructed in the applicable law. Among the instructions given were Illinois Pattern Jury Instructions, Criminal, No. 7.02 (murder) (2d ed. 1981) (hereinafter IPI Criminal 2d); IPI Criminal 2d No. 7.04 (voluntary manslaughter — provocation); and IPI Criminal 2d No. 7.06 (voluntary manslaughter — belief of justification).

During deliberations, the jury sent out a note stating that they were deadlocked and that they needed “further explanation on reasonable and provocation.” In response, the court instructed the jury to review the instructions and to continue deliberating. Subsequently, a second note was sent out requesting transcripts of the testimony of defendant, Beltran, and Officer Magnus. The court responded to this note by informing the jury that it would attempt to locate the court reporter. Later, when the trial court asked the jurors if they still wanted to hear the requested testimony, they indicated that they had reached a verdict. Defendant was found guilty of murder and sentenced to 28 years in prison.

In this appeal, defendant argues that his conviction for murder must be reversed because of the Illinois Supreme Court’s ruling that the manslaughter instructions (IPI Criminal 2d Nos. 7.04, 7.06), misstated the burden of proof and constituted grave error. People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.

Under Illinois law, a person commits manslaughter when he acts under a sudden and intense passion resulting from serious provocation by the individual killed (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(a)), or if at the time of the killing, he possesses an unreasonable belief that the circumstances are such that they would justify or exonerate the killing (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b)). In Reddick, the Illinois Supreme Court held that the IPI instructions for murder and voluntary manslaughter incorrectly provided that the State was required to prove the mental conditions that reduce murder to manslaughter, when they should have provided that the State was required to disprove those conditions. Reddick, 123 Ill. 2d at 197.

Subsequently, the supreme court found that its holding in Reddick was of constitutional dimension and, therefore, should be applied in cases such as this that were pending on direct review at the time of the Reddick decision. (People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538.) The supreme court also found that despite its characterization of the instructions as “grave error,” its decision in Reddick did not mandate automatic reversal of convictions arising from trials in which the defective instructions were used. Shields, 143 Ill. 2d at 445.

Pointing out that in decisions subsequent to Reddick, it had ruled that the giving of the instructions could be harmless error (see People v. Austin (1989), 133 Ill. 2d 118, 549 N.E.2d 331; People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241), the supreme court stated that in determining the effect of the instructions on the validity of a defendant’s conviction, the instructions should not be judged in artificial isolation but should be considered in light of the record as a whole, including evidence and arguments presented to the jury (Shields, 143 Ill. 2d at 445-46). The supreme court added that the giving of the instructions would not constitute reversible error if shown to be harmless beyond a reasonable doubt. Shields, 143 Ill. 2d at 446-47.

Shields involved four consolidated appeals. After examining the facts of each appeal, the supreme court determined that the giving of the manslaughter instructions constituted plain error in two of the cases, Shields and Evans, but was harmless beyond a reasonable doubt in the other two cases, Fercsi and Thomas.

In the two cases that were reversed, the supreme court observed that the evidence was closely balanced and that defendants had presented extensive evidence in support of their assertions that the killings were provoked or justified. (Shields, 143 Ill. 2d at 448, 451.) In the two other cases, the supreme court noted that there was no evidence, beyond defendants’ own testimony, that they acted in self-defense or under sudden, intense passion. In those cases, the supreme court ruled that the evidence in support of defendants’ convictions was so clear and convincing that the juries’ verdicts would not have been different had the correct instructions been used. Shields, 143 Ill. 2d at 450, 454.

Since Reddick, this court has held in a number of cases that the giving of the manslaughter instructions may be harmless beyond a reasonable doubt. People v. Green (1991), 209 Ill. App. 3d 233, 568 N.E.2d 92; People v. Sargent (1990), 207 Ill. App. 3d 631, 207 N.E.2d 631; People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.

In Carter, this court took note of the supreme court’s statement in Reddick that the proof of a mental state associated with manslaughter is like an affirmative defense. This court held that, therefore, a defendant must produce enough evidence to put the defense in issue. The court added that once defendant meets this burden, the burden shifts to the State to disprove the mitigating mental conditions of voluntary manslaughter beyond a reasonable doubt. Carter, 177 Ill. App. 3d at 599.

This court found in Carter that there was no evidence beyond defendant’s own testimony to support his version of the killing and ruled that, even if defendant’s testimony was sufficient to shift the burden of proof to the State, the evidence showed beyond a reasonable doubt that the State had sustained its burden of disproving defendant’s defenses. Therefore, we concluded that any error caused by the voluntary manslaughter . instruction was harmless beyond a reasonable doubt. Carter, 177 Ill. App. 3d at 600.

A similar conclusion was reached in Green. There, we noted that it is voluntary manslaughter when one acts out of a sudden and intense passion resulting from serious provocation by another but that if the provocation is inadequate or if defendant attacks the victim out of proportion to the provocation, the crime is murder. Considering the facts of that case, we held that even if there was provocation for defendant’s actions, it was in no way in proportion to the manner in which he retaliated. For that reason, we found no error in the giving of the voluntary manslaughter instructions. Green, 209 Ill. App. 3d at 240.

Finally, in Sargent, this court found that a victim’s verbal statements did not constitute provocation sufficient to support defendant’s claim that he acted under a sudden and intense passion. Accordingly, we concluded that the voluntary manslaughter instruction was harmless beyond a reasonable doubt.

In the present case, the jury was given both the justification and provocation instructions. Turning first to the justification instruction, we find that the giving of this instruction did not constitute reversible error.

Nothing in the record, including defendant’s own testimony, supports a finding that defendant acted under a belief that the killing was justified. Davila was unarmed at the time of the shooting and, despite defendant’s claim that Davila struck and pushed him, there was no claim that defendant was afraid of Davila or that he acted under the belief that his safety was threatened by her actions. Under these circumstances, the giving of the justification instruction was harmless beyond a reasonable doubt. See People v. Dower (1991), 218 Ill. App. 3d 844, 850.

Turning to the provocation instruction, we find that under the supreme court’s decision in People v. McCarthy (1989), 132 Ill. 2d 331, 547 N.E.2d 459, the giving of this instruction also did not amount to reversible error. Unlike the present case, where defendant argues that it was error to give the provocation instruction in the form in which it was given, in McCarthy, the issue was whether it was error to refuse to give the provocation instruction in light of defendant’s claim that he murdered his former common law wife after discovering her in bed with another man. Although the issues raised are different, the rationale applied by the Illinois Supreme Court in McCarthy is applicable in the present case.

In McCarthy, the supreme court stated that although section 9— 2(a) does not specify what types of conduct or provocation may serve to reduce the offense of murder to voluntary manslaughter, in Illinois those circumstances have been limited to four situations: substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse. Mere words or gestures or trespass to property are not sufficient. McCarthy, 132 Ill. 2d at 340-41.

In rejecting defendant’s claim that the provocation instruction should have been given, the supreme court noted that the provocation of adultery would not warrant use of the instruction when the spouses are divorced (People v. Strange (1980), 81 Ill. App. 3d 81, 400 N.E.2d 1066), and ruled that, therefore, defendant was not entitled to the instruction because his “marital-type” relationship with the victim had ended two months prior to the shooting (McCarthy, 132 Ill. 2d at 342).

Here, there was evidence that defendant and Davila had lived together for several years, but that defendant had moved out of their apartment at Davila’s insistence two years before the shooting. Thus, the “marital-type” relationship had ended, and defendant’s claim that he was provoked by Davila’s statement that she had another boyfriend and that this boyfriend was a better lover than defendant was not sufficient to entitle defendant to the provocation instruction. Moreover, as pointed, out above, mere words are not sufficient provocation to reduce an offense from murder to manslaughter. (McCarthy, 132 Ill. 2d at 341.) Accordingly, we conclude that defendant was not entitled to the provocation instruction and that, therefore, the giving of the instruction was harmless beyond a reasonable doubt.

Defendant next argues that the trial court erred in denying his motion to suppress his post-arrest oral statements. Defendant contends that by refusing his attorney’s request for a breathalyzer test, the State failed to preserve exculpatory evidence of defendant’s intoxication, thereby violating his due process rights. Defendant also contends that had the test been given, he could have more effectively challenged his oral statements as “drunken ramblings.”

In denying defendant’s motion to suppress, the trial court found that while defendant could bring out the refusal to administer the breathalyzer test as a factor to be considered by the jury in determining the weight to be given defendant’s statement, under California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528, there was no requirement that defendant be given the test.

In Trombetta, the issue was whether due process precluded the admission into evidence of defendants’ breath-analysis test results where the State of California failed to preserve the breath samples so that defendants could have their own tests run on them. The Supreme Court held that the due process clause of the fourteenth amendment did not require that the breath samples be preserved in order to introduce the test results at trial.

The Court stated that a failure to preserve evidence results in a constitutional violation where the evidence possesses an exculpatory value that is apparent before the evidence is destroyed and is of such a nature that defendant would be unable to obtain comparable evidence by other reasonably available means. (Trombetta, 467 U.S. at 489, 81 L. Ed. 2d at 422, 104 S. Ct. at 2534.) The Court held that given the reliability of the breath-testing procedures, there was no reason to assume that, if preserved, the samples would have been exculpatory. The Court also held that defendants were not without alternative means of demonstrating their innocence since they could have introduced evidence that the test was administered improperly or that equipment had malfunctioned. Trombetta, 467 U.S. at 489-90, 81 L. Ed. 2d at 422-23, 104 S. Ct. at 2534-35.

In the present case,- there is no reason to believe that the results of a breathalyzer test would have led to suppression of defendant’s statement. While the breathalyzer test results might have provided support for the testimony of defendant’s witnesses, a result showing intoxication, in itself, would not render defendant’s statement inadmissible. See People v. Sleboda (1988), 166 Ill. App. 3d 42, 519 N.E.2d 512; In re Shutters (1977), 56 Ill. App. 3d 184, 370 N.E.2d 1225; People v. Moon (1976), 38 Ill. App. 3d 854, 350 N.E.2d 179; see also Commonwealth v. Lanoue (1984), 392 Mass. 583, 467 N.E.2d 159 (rejecting a defendant’s claim that the police had an obligation to ensure a voluntary, knowing, and intelligent waiver of Miranda rights through administration of a breathalyzer test).

In Sleboda, a breathalyzer test indicated that at the time of defendant’s arrest, his blood-alcohol level was .22, more than twice the legal limit. In rejecting defendant’s argument that his motion to suppress his statement should have been sustained because he was too intoxicated to knowingly waive his Miranda rights, the appellate court held that there was sufficient evidence that the waiver was knowingly made. The court based its conclusion on testimony that defendant was able to stand and walk unassisted, that he was responsive to questions, was able to follow directions, and did not have slurred speech. Sleboda, 166 Ill. App. 3d at 51-52.

In the present case, Officers Trempe, Enault, and Schak all testified that defendant appeared sober, was not disheveled, and had no difficulty walking and talking. However, Rivera and Edenson testified, and the trial court found, that defendant was under the influence of alcohol. Despite this fact, the trial court found that defendant’s statement was voluntary. This conclusion was based on defendant’s actions in turning over his gun to Rivera after the shooting and his conduct during his initial contact with the police, including his questioning of the officers.

A trial court’s finding on the question of whether a defendant was so intoxicated as to make his statements involuntary will not be reversed unless it is against the manifest weight of the evidence. (Sle boda, 166 Ill. App. 3d at 51; Shutters, 56 Ill. App. 3d at 188; Moon, 38 Ill. App. 3d at 861.) Here, it would seem that there was sufficient evidence to support the trial court’s finding that defendant was not so intoxicated that he was unable to make a knowing waiver of his Miranda rights and, therefore, we will not disturb that finding.

Defendant’s final argument is that there was insufficient evidence to establish his guilt beyond a reasonable doubt. Defendant points out that under Illinois law when an accused presents evidence sufficient to reduce a murder charge to voluntary manslaughter, the State must prove beyond a reasonable doubt that defendant did not have that mental state. (People v. Denson (1985), 139 Ill. App. 3d 914, 487 N.E.2d 777; People v. Bolden (1985), 132 Ill. App. 3d 1047, 477 N.E.2d 1380.) Defendant argues, that here, he presented evidence that he was acting from a sudden and intense passion resulting from Davila’s statement that she had another boyfriend who was a better lover than defendant. Defendant contends that the State failed to meet its burden of presenting evidence to negate his claim that he acted in response to serious provocation from Davila.

As we stated in our earlier discussion, mere words or gestures are not sufficient to reduce a charge from murder to manslaughter. (McCarthy, 132 Ill. 2d at 341.) Moreover, the provocation of adultery is not sufficient to reduce a charge to manslaughter where the parties are no longer in a “marital-type” relationship at the time of the act. McCarthy, 132 Ill. 2d at 342.

Thus, we find that there is no merit to defendant’s claim that he presented evidence sufficient to reduce the murder charge to voluntary manslaughter or that the State failed to prove his guilt beyond a reasonable doubt.

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

Affirmed.

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


author: JUSTICE EGAN

text:
    FRIEDA WYSOCKI, as Special Adm’r of the Estate of Bohdan Wysocki, Deceased, Plaintiff-Appellant, v. CHARLES J. REED et al., Indiv. and d/b/a Reed, Scoby and Webster, Defendants-Appellees.
    First District (6th Division)
    No. 1—90—2266
    Opinion filed November 15,1991.
    Modified on denial of rehearing December 27,1991.

      James A. Romanyak & Associates, of Chicago (Gregory A. Stayart, of counsel), for appellant.
    Louis Hilfman, of Hilfman & Fogel, P.C., of Chicago, for appellees Charles J. Reed and Edward V. Scoby.
    Alholm & Monahan, of Chicago (Peter A. Monahan and Linda J. Hay, of counsel), for appellee Charles E. Webster.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Frieda Wysocki, brought this complaint against the individual lawyer defendants and their law firm alleging legal malpractice in the handling of the plaintiff’s deceased husband’s potential products liability claim against two drug manufacturers. In order to recover against the defendants, the plaintiff would have to show that she would have recovered from one or both of the drug manufacturers but for the malpractice of the defendants. Because she was unable to identify which of the two drug manufacturers provided the drug which injured her husband, the trial judge, invoking the traditional rule of causation in fact and rejecting the rule of alternative liability, dismissed the complaint. In seeking the reversal of the judge’s order, the plaintiff asks us to adopt the rule of alternative liability which is set forth in the Restatement (Second) of Torts as follows:

“Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is- upon each such actor to prove that he has not caused the harm.” Restatement (Second) of Torts §433B(3) (1965).

The plaintiff is the widow of Bohdan Wysocki. On or about October 3, 1975, Bohdan Wysocki entered Loyola University Hospital to receive treatment for phlebitis. He was given the prescription drug heparin, a generic coagulent, which was manufactured either by the Upjohn Company (Upjohn) or Wyeth Laboratories (Wyeth). Both Upjohn and Wyeth sold heparin to the hospital.

Bohdan Wysocki allegedly suffered a severe adverse reaction to the heparin, causing the formation of arterial emboli which impaired his blood circulation. As a result, he suffered permanent injuries, including a cardiovascular accident, amputation of his right leg below the knee, paralysis of his right arm, mental disorientation, and loss of speech, memory and self-control. He became totally disabled and died in 1984.

The plaintiff retained the defendant firm to bring suit to recover for the injuries sustained by her husband. The firm filed a medical malpractice suit against Loyola University Hospital and certain of its physicians in 1977. That suit was settled during trial in late 1982. The firm then filed a products liability suit against Upjohn and Wyeth in 1983. However, the suit against Upjohn and Wyeth was dismissed with prejudice in 1984 because of language in the release which had been drafted by the firm in connection with the settlement of the medical malpractice suit against Loyola University Hospital and its physicians. The plaintiff appealed, and the appellate court affirmed the dismissal. Wysocki v. Upjohn Co. (1987), 157 Ill. App. 3d 868, 510 N.E.2d 994.

After the affirmance, the plaintiff filed this action against the defendants, asserting that the negligence of the defendants in drafting the release of Loyola University Hospital and its physicians caused her products liability suit to be dismissed with prejudice. The defendants filed a motion to dismiss, alleging that the plaintiff could not identify the manufacturer of the drug that caused the decedent’s injuries; therefore, she could not show that “but for” the negligence of the defendants she would have prevailed in the action against the manufacturers.

The plaintiff responded that, under the doctrine of alternative liability, she would not need to identify the manufacturer of the drug given to the decedent. Her complaint alleged that the drug which was administered by the hospital had been manufactured by Wyeth and/or Upjohn. The plaintiff’s response admitted that alternative liability had not yet been adopted by the Illinois Supreme Court. However, the plaintiff contended, had her lawsuit against Wyeth and Upjohn proceeded, the Illinois Supreme Court would have adopted the doctrine of alternative liability and her claim against Upjohn and Wyeth would have succeeded.

The trial judge continued the defendants’ motion to dismiss until the Illinois Supreme Court issued its opinion in Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 N.E.2d 324. The supreme court’s opinion in Smith refused to adopt various market share and market risk theories but only briefly discussed the alternative liability theory. It neither accepted nor rejected the theory.

On July 30, 1990, the trial judge granted the defendants’ motion and dismissed the complaint with prejudice, stating the following:

“It’s real questionable whether or not the attorney should predict what course Illinois law will take *** which is a problem I had .with it before. I’ll grant the motion.”

We have quoted the trial judge in order to clarify the issues. We interpret his remark to mean that, as a matter of law, he would not find legal malpractice for the reason, in addition to the plaintiff’s failure to establish causation in fact, that a lawyer should not be held responsible for failure to anticipate a reviewing court would adopt a particular legal theory. That position has not been advanced in this court by the defendants.

The defendants argue that alternative liability should not be accepted as the law of this State and, if it is accepted, it is not applicable to these facts. The defendant, Webster, argues also that he cannot be liable because he was not a partner in the firm and that the plaintiff’s claim is barred by the statute of limitations.

Both sides claim support for their positions in the Smith case. The plaintiff maintains that, because the supreme court expressly rejected other doctrines of tort liability, but not alternative liability, the court implicitly accepted it. The defendants, on the other hand, construe Smith to mean that its refusal to accept the theory advanced by the plaintiff, which was not alternative liability, amounts to a refusal to depart from the traditional requirement of tort law that a plaintiff prove that a defendant did, in fact, cause the injury. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401, 256 N.E.2d 6.) Our analysis of the question necessarily begins with discussion of the Smith case.

In Smith, the plaintiff alleged that she had been injured by a drug, abbreviatedly identified as DES, a carcinogen, which her mother had ingested during pregnancy. The plaintiff was unable to identify the manufacturer of the drug given to her mother; she filed suit against 138 drag companies. A witness testified that there were 81 companies that had marketed DES during the relevant time period. Of those 81 potential manufacturers of the drug that injured the plaintiff, 63 were not named in her complaint. After several procedural motions were decided, 20 companies remained in the lawsuit as defendants.

The trial judge denied the defendants’ motion for summary judgment on the strict liability count and adopted “market share”liability, based on the California Supreme Court’s decision in Sindell v. Abbott Laboratories (1980), 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132. The appellate court affirmed the trial court’s holding on the strict liability count and further held that market share liability should also apply to the plaintiff’s negligence count. (Smith v. Eli Lilly & Co. (1988), 173 Ill. App. 3d 1, 527 N.E.2d 333.) However, the appellate court rejected the Sindell rule and instead adopted the Washington Supreme Court’s version of market share liability, articulated in Martin v. Abbott Laboratories (1984), 102 Wash. 2d 581, 689 P.2d 368. The court also held that the theory of alternative liability was not applicable to DES cases, partly on the ground that all defendants who could have possibly injured the plaintiff were not before the court. Smith, 173 Ill. App. 3d at 31.

The supreme court granted leave to appeal and examined several exceptions to the traditional causation requirement, including market share liability, enterprise liability, alternative liability, and res ipsa loquitur. However, the court noted that the plaintiff had not cross-appealed from the appellate court’s rejection of the alternative liability theory and concluded that it was faced with “only the narrow legal issue of whether to adopt market share liability in negligence and strict liability actions filed by a DES daughter.” (137 Ill. 2d at 236.) In deciding that narrow issue the supreme court refused to accept the doctrine of market share liability as adopted in California (Sindell, 26 Cal. 3d 588, 607 P.2d 924, 136 Cal. Rptr. 132) and Washington (Martin, 102 Wash. 2d 581, 689 P.2d 368). The court also discussed and refused to follow the form of market share liability as adopted by the Wisconsin Supreme Court in Collins v. Eli Lilly Co. (1984), 116 Wis. 2d 166, 342 N.W.2d 37 (the “risk contribution” theory) and in the form adopted by the New York Court of Appeals in Hymowitz v. Eli Lilly & Co. (1989), 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941 (national market share theory).

The Smith opinion is divided into various subheadings, one of which is entitled, “COURTS WHICH HAVE REJECTED MARKET SHARE LIABILITY.” (137 Ill. 2d at 246.) Included in the cases which allegedly rejected market share liability are Namm v. Charles E. Frosst & Co. (1981), 178 N.J. Super. 19, 427 A.2d 1121, and Senn v. Merrell-Dow Pharmaceuticals, Inc. (1988), 305 Or. 256, 751 P.2d 215. The court identifies them as cases which refused to adopt “alternative liability.” (Smith, 137 Ill. 2d at 249.) A reasonable inference arises that the Smith court regarded alternative liability as but one more form of the market share liability theory. However, a further reading of that part of the opinion entitled “ANALYSIS OF MARKET SHARE IN ILLINOIS” (137 Ill. 2d at 251) disabuses us of that inference. The court noted that the appellate court in Smith had based its conclusion on analogies to res ispa loquitur and alternative liability. The court distinguished those theories from market share liability:

“In res ispa loquitur and alternative liability situations, all parties who could have been the cause of the plaintiff’s injuries are joined as defendants. This helps to preserve the identification element because liability will surely fall on the actual wrongdoer. By contrast, market share liability merely requires the plaintiff to name as defendants either a substantial share of those in the market or, in some theories, only one manufacturer who was in the market. As a result, there is a real possibility that the defendant actually responsible for the injuries is not before the court. Second, in res ipsa loquitur and alternative liability, burden-shifting is considered equitable because defendants are typically in a better position than the plaintiff to determine who caused the harm. Market share liability shifts the burden to defendants without regard to whether plaintiff is better able to identify the defendant responsible or without regard to defendants’ ability to identify who among them is actually responsible. *** Third, in the earlier exceptions the burden is shifted to parties who bear some culpability for causing plaintiff’s injury. In alternative liability, each defendant was at least negligent toward the plaintiff, and in res ipsa loquitur at least one defendant caused the injury and the others are intimately connected to the activity and instrumentality that caused the harm. But with market share liability the named defendant need not have been directly connected with the activity or instrumentality that caused the harm. Indeed, it is inevitable that some defendants wholly innocent of wrongdoing towards the particular plaintiff will shoulder part or all of the responsibility for the injury caused.” (137 Ill. 2d at 257-58.)

The court also noted that every court that had addressed the question had held, for a number of reasons, that alternative liability does not apply to DES cases. 137 Ill. 2d at 257.

Two justices dissented from the rejection of market share liability. After repeating the Restatement rule, the dissent said this:

“The policy justification for relaxing the causation requirement in alternative liability situations is that it would be unjust to permit ‘proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.’ (Restatement (Second) of Torts §433B, comment /, at 446.) Although the doctrines of res ipsa loquitur and alternative liability may not be applicable to the facts in this case (see 137 Ill. 2d at 257), both doctrines illustrate the fact that traditional tort concepts such as causation in fact must occasionally be modified to meet the needs of our ever-changing society.” (137 Ill. 2d at 272 (Clark, J., dissenting).)

We interpret the remarks of the dissenting justices to be expressions of approval of alternative liability. Moreover, in our judgment, it would be inconsistent to accept the more radical departure from the rule of causation in fact by adoption of market share liability, as did the dissenting justices, and to refuse in all cases to recognize the applicability of alternative liability.

Our reading of the majority opinion in Smith, however, provides us with no clear expression of the views of the majority on the merits of alternative liability other than the fact that it lacks some of the flaws of market share liability. We therefore conclude that we must decide for ourselves whether the doctrine of alternative liability should be applied in this case.

The genesis of the Restatement rule is Summers v. Tice (1948), 33 Cal. 2d 80, 199 P.2d 1. In that case the plaintiff was in a hunting party with two companions both of whom negligently fired in the direction of the plaintiff. One pellet struck the plaintiff in his eye and another in his upper lip, but the source of either shot could not be proved. The California Supreme Court spoke as follows:

“When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers — both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm.” 33 Cal. 2d at 86, 199 P.2d at 4.

Summers v. Tice has been cited and followed in the great majority of jurisdictions that have considered it in cases where all possible tortfeasors have been before the court. We know of only one case that has rejected it. The Smith court quoted from Summers v. Tice but added, as we have already noted, that every court that had addressed the issue had held that alternative liability did not apply to DES cases. Smith, 137 Ill. 2d at 257.

The supreme court of Ohio adopted the rule in Minnich v. Ashland Oil Co. (1984), 15 Ohio St. 3d 396, 473 N.E.2d 1199. In that case the plaintiff was injured in an explosion caused by a chemical supplied by one of two defendants; both defendants sold the chemical to the plaintiff’s employer. There were dissenting opinions in the case, but they focused on the insufficiency of the evidence to support summary judgment rather than a refusal to accept the doctrine of alternative liability. The Pennsylvania Supreme Court adopted the rule in Snoparsky v. Baer (1970), 439 Pa. 140, 266 A.2d 707, and the Michigan Supreme Court in Abel v. Eli Lilly & Co. (1984), 418 Mich. 311, 343 N.W.2d 164. The appellate court of North Carolina adopted the rule in McMillan v. Mahoney (1990), 99 N.C. App. 448, 393 S.E.2d 298.

The rule has been considered in a number of Federal jurisdictions. In Menne v. Celotex Corp. (D. Kan. 1986), 641 F. Supp. 1429, the district judge predicted “with confidence” that the Nebraska Supreme Court would adopt the doctrine of alternative liability. (641 F. Supp. at 1438.) Similarly, in Poole v. Alpha Therapeutic Corp. (N.D. Ill. 1988), 696 F. Supp. 351, the district judge held “that the Illinois Supreme Court would follow the vast majority of courts in allowing plaintiffs to proceed on a theory of alternate liability.” 696 F. Supp. at 356.

Further discussion of the Poole case is appropriate because the opinion illustrates the distinction between alternative liability and other theories, as did the majority opinion in Smith. Poole, a hemophiliac, purchased a drug known as factor VIII. The named defendants comprised the complete market of manufacturers, processors, marketers and distributors from which Poole purchased factor VIII over his lifetime. The complaint alleged that the defendants failed to perform screening and heat treating tests; as a result, Poole contracted Acquired Immune Deficiency Syndrome (AIDS) and died. The district judge considered the pleadings under three different theories: market share, concerted action and alternate liability. He held that the market share theory was not applicable because the plaintiffs had identified all defendants. The concerted action theory was rejected because the plaintiffs could not show that a tacit agreement existed among the defendants to perform a tortious act.

The supreme court of Illinois had not yet decided Smith. The district judge recognized that the appellate court in Smith had held that alternative liability was not available in DES cases and relied in part on its conclusion that the “alternative liability doctrine contemplates that all defendants who could have possibly injured the plaintiff are before the court,” thus insuring that “at least one of the defendants was directly responsible for the plaintiff’s harm.” (696 E Supp. at 355.) The judge also emphasized that other courts rejecting the alternative liability theory had done so primarily because not all of the defendants were named in the suits. He concluded that, “[sjince plaintiffs have identified all of the defendants that could have possibly caused Poole to contract AIDS, this case presents the classic situation contemplated by the alternative liability doctrine. When all defendants are present, courts have adopted the theory. [Citations.]” 696 F. Supp. at 355.

The United States Court of Appeals for the District of Columbia Circuit, citing District of Columbia law, approved the rule in Bowman v. Redding & Co. (D.C. Cir. 1971), 449 F.2d 956.

In re “Agent Orange” Product Liability Litigation (E.D. N.Y. 1984), 597 F. Supp. 740, aff’d (2d Cir. 1987), 818 F.2d 145, involved the settlement of a class action brought by members of the armed forces of the United States, Australia and New Zealand against several major chemical companies for injuries allegedly suffered as a result of the serviceperson’s exposure to the herbicide Agent Orange while in Viet Nam. The New York District Court, based on “federal or national consensus substantive law” (597 F. Supp. at 755), accepted the Restatement rule.

The defendants cite Namm v. Charles E. Frosst & Co. (1981), 178 N.J. Super. 19, 427 A.2d 1121. We do not agree that that DES case is in point. Although the appellate division of the New Jersey Superior Court identified the cause of action as one brought under alternative liability, it was not, as that term is used here. We restrict the term to cases where all of the possible defendants are before the court. The appellate division, in affirming the dismissal of the complaint, noted that the harm suffered by the plaintiff could have been caused by “one who is not a party to the law suit.” 178 N.J. Super, at 33, 427 A.2d at 1128.

There is one case which clearly supports the defendants’ position. In Senn v. Merrell-Dow Pharmaceuticals, Inc. (1988), 305 Or. 256, 751 P.2d 215, a complaint was filed against two manufacturers of a diphtheria, tetanus and pertussis vaccine. The plaintiff became severely handicapped as a result of use of the vaccine, and she sued the only two manufacturers that could have produced the vaccine she received.

In rejecting the rule, the supreme court of Oregon seemed to have no problem with the rule if it were applicable to cases involving only two tortfeasors:

“In a two defendant situation, the evidence is in equipoise. As to either defendant it is exactly as likely as not that that defendant caused plaintiff’s harm. In theory, one of the defendants can escape liability altogether by presenting some scintilla of exculpatory evidence greater than that the other defendant produces, so that the evidence preponderates against the other defendant.” (305 Or. at 270-71, 751 P.2d at 223.)

The court’s problem with the rule arose with cases involving more than two tortfeasors. The Senn court observed that most courts seemed to feel that a rule of alternative liability modeled on Summers v. Tice and section 433B of the Restatement is defensible where the number of defendants is small, but that such a rule becomes unfair at some undefined point as the number of defendants increases. The court questioned why it would be fair to impose joint liability without a preponderance of proof of causation in some cases, but not in others, when the character of the defendant’s conduct and the plaintiff’s difficulty of proof are the same in either instance. The court also suggested that the quantum of evidence required for a defendant to escape liability might vary with the number of defendants named. If there were three defendants, for example, the court said, there would be only a 331/3% likelihood that any one defendant was the responsible party. The court questioned what lesser degree of likelihood a defendant would need to show to escape liability. In sum, the Senn court seemed to be troubled by the failure of Summers to define the precise nature of the defendant’s burden of proving that it was not the wrongdoer.

We would not be honest if we refused to recognize that the questions raised in Senn are not susceptible of easy answers. Nonetheless, we do not agree with the reasoning of Senn that it should reject the particular claim before it involving two tortfeasors because of problems which might arise with more than two tortfeasors.

Senn also held that, since the policy of the State was involved, any deviation from the rule of causation in fact must come from the legislature. We do not accept that reasoning of the Senn court either. The judiciary, no less than the legislature, may be the voice of the public policy of this State. The rule of causation in fact is a rule of the common law, not a statute. As our supreme court spoke in adopting the doctrine of comparative negligence:

“We believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. There are, however, times when there exists a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court. Such a stalemate is a manifest injustice to the public. When such a stalemate exists and the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society.” Alvis v. Ribar (1981), 85 Ill. 2d 1, 23-24, 421 N.E.2d 886.

Acceptance or rejection of the rule depends on the answer to this question: Is it more unjust that an injured party receive nothing because he cannot identify which of two admitted wrongdoers injured him or that both of two admitted wrongdoers be held jointly and severally liable unless one may show by a preponderance of the evidence that the other wrongdoer caused the injury? We believe it is more unjust that the injured party receive nothing from two admitted wrongdoers.

Acceptance of alternative liability in this case does not mean that, if the manufacturers of the drugs were the defendants before the court, they would be delivered trussed and gagged for the enrichment of the plaintiff. The plaintiff must still prove that the manufacturers failed to provide adequate warnings and that the injuries suffered by her husband were, in fact, caused by heparin. The manufacturers would be entitled to the defense of the learned intermediary doctrine, if applicable. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) Each manufacturer would be given an opportunity to show that it did not provide heparin to Loyola University Hospital during the relevant period or that it provided a relatively small amount of heparin when compared with that provided by the other defendant. In short, acceptance of the rule would still leave each manufacturer with a fighting chance; rejection of the rule would leave an innocent injured person with none. We believe that fundamental fairness dictates that we hold that the Restatement rule of alternative liability is applicable to the facts alleged in this complaint.

As a general rule, reviewing courts, particularly intermediate reviewing courts, should be reluctant to expand their holdings beyond those necessary to decide the particular facts before them. Any pronouncement on our part that the rule should be applicable to cases involving more than two tortfeasors would be unnecessary and obiter dicta. Consequently, we hold that resolution of the question whether the rule should be applicable to more than two tortfeasors must wait for another day and another case..

The defendants argue that even if alternative liability were adopted in Illinois, it would not apply to this case because, allegedly, the plaintiff cannot prove that all defendants acted tortiously toward the deceased. We disagree. In the plaintiff’s underlying products liability action, she alleged that Upjohn and Wyeth acted tortiously by placing a defective drug into the stream of commerce without an adequate warning of its potentially dangerous side effects. The trial court was required to accept this properly pleaded allegation as true. (Kendall v. Kendall (1978), 71 Ill. 2d 374, 375 N.E.2d 1280.) Failure to warn of a product’s dangerous propensities may serve as the basis for holding the manufacturer or seller strictly liable in tort. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) Therefore, the plaintiff properly alleged that Upjohn and Wyeth both acted tortiously.

The defendants assert that the plaintiff cannot prove that Upjohn and Wyeth acted tortiously toward the decedent; they contend that in order to prove that both defendants acted tortiously toward the decedent, the plaintiff would have to prove that the heparin manufactured by Upjohn and the heparin manufactured by Wyeth were both infused into the decedent’s system at the same time. This is an erroneous interpretation of the rule of Summers v. Tice. In Summers, two hunters shot in the direction of the plaintiff; one pellet lodged in the plaintiff’s right eye; and another lodged in his upper lip. The defendants here apparently assume that the pellet that hit the Summers plaintiff’s eye came from one hunter’s gun and the pellet that hit the plaintiff’s lip came from the other hunter’s gun. The defendants, therefore, conclude by analogy that in the case before us the plaintiff must show that the products of both Upjohn and Wyeth “hit,” or were infused into, the decedent. However, in Summers it was not clear that one pellet from the gun of each hunter hit the plaintiff. The California Supreme Court noted that “[i]mplicit in [the trial court’s] finding is the assumption that the court was unable to ascertain whether [both] shots were from the gun of one defendant or the other or one shot from each of them.” (Summers, 33 Cal. 2d at 84, 199 P.2d at 3.) In Summers, therefore, the court knew only that both defendants shot in the direction of the plaintiff, not that both defendants hit the plaintiff. Similarly, in the case before us, the pleadings establish that both defendants sold a defective drug to Loyola University Hospital. Thus, both defendants “shot” their product in the direction of the decedent; however, only one product “hit” the decedent. Under the rule of Summers, therefore, the plaintiff has proved that both Upjohn and Wyeth were negligent toward the decedent.

The defendant Webster argues that the plaintiff’s claim is barred by the five-year statute of limitations applicable to legal malpractice claims and that he cannot be held liable for the negligence of his codefendants because he was not a partner in the firm of Reed, Scoby & Webster. Neither argument was raised in the trial court and is, therefore, waived for the purposes of this appeal only.

For these reasons, the judgment of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Judgment reversed and remanded.

RAKOWSKI, P.J., and LaPORTA, J., concur.