author: PRESIDING JUSTICE LaPORTA

text:
      In re ESTATE OF WALTER SZOREK, Deceased (Judy K. Aust, Plaintiff-Appellant, v. Liberty Savings & Loan Association, Defendant-Appellee).
    First District (6th Division)
    No. 1—88—2776
    Opinion filed February 16, 1990.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Howard A. London, of counsel), for appellant.
    Martin, Craig, Chester & Sonnenschein, of Chicago (Thomas B. Cassidy and William A. Kummerer, of counsel), for appellee.

      Justice Quinlan participated in this opinion prior to his resignation from the court. Justice Rakowski participated in the rehearing and the modified opinion in place of Justice Quinlan.

   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal from an award of attorney fees and costs in favor of defendant, Liberty Savings and Loan Association, and against plaintiff, Judy Aust, following a hearing on a declaratory judgment action filed by plaintiff against defendant which was consolidated with a citation to recover assets filed in a probate proceeding by the administrator of the estate of Walter Szorek, deceased. Both actions sought to recover funds on deposit in a certificate of deposit in the names of decedent and plaintiff as joint tenants with right of survi-vorship.

Walter Szorek died intestate on March 20, 1987, after several years of illness, a leg amputation, and a number of hospitalizations. Prior to his death and at the direction of Szorek, plaintiff transferred approximately $72,000 of Szorek’s funds then on deposit in a Fair-field Savings and Loan account to a certificate of deposit with defendant Liberty Savings and Loan Association. The certificate of deposit account was opened on February 6, 1987, in the names of Walter Szorek and plaintiff as joint tenants with right of survivor-ship.

Upon Szorek’s death, plaintiff made the necessary funeral and burial arrangements. Sometime thereafter, when plaintiff attempted to collect the funds from defendant as surviving joint tenant, she was advised by an officer of defendant association that because of a discrepancy of Szorek’s date of birth on the signature card and his date of birth on the death certificate, they would not pay the funds to her.

Within weeks of Szorek’s death, the public administrator opened a probate estate and was appointed administrator by the court. The heirship identified unknown heirs as the beneficiaries of the estate. It should be noted that 16 months later, when the estate was closed, the remaining estate assets were paid over to the Cook County treasurer to be held for the unknown heirs of Szorek. The inventory subsequently filed by the administrator listed as estate assets a Fairfield Savings and Loan Association checking account, a Fairfield Savings and Loan Association certificate of deposit, a Medicare check, and the certificate of deposit at defendant association, all for a total estate of $151,592.62. On August 3, 1987, the administrator filed a petition to recover assets for the joint tenant certificate of deposit funds in defendant’s association with notice served on defendant but without notice served on plaintiff. The record discloses that notice to plaintiff was misaddressed, not delivered, and returned to sender.

On August 3, 1987, plaintiff filed a declaratory judgment suit in chancery against defendant to recover the joint tenancy funds in the certificate of deposit account. Plaintiff moved for summary judgment on September 8, 1987. Defendant moved to consolidate the chancery case with the probate litigation, and the matters were consolidated and thereafter proceeded in the probate court. Plaintiff’s summary judgment motion was denied on January 26, 1988.

Following a hearing on the consolidated citation and declaratory judgment petitions on April 8, 1988, the trial judge ordered defendant to turn over the entire account balance plus accrued interest to plaintiff except for the sum of $3,500 reserved pending a hearing on defendant’s petition for fees and costs. On July 19, 1988, the trial judge awarded defendant the sum of $3,757.39, for attorney fees ($3,647) and costs ($110.39) to be paid from the funds reserved and the balance to be paid by plaintiff. Plaintiff’s petition for reconsideration was denied, and plaintiff filed this appeal challenging only the award of fees and costs to the defendant.

Plaintiff raises three grounds for her appeal: (1) that she did not enter into any agreement with the defendant for payment of attorney fees incurred by defendant in defense of the action brought by plaintiff, the depositor and surviving joint tenant, to recover account proceeds which the court found to be rightfully hers; (2) that by its failure to pay the account proceeds to her as the surviving joint tenant, thereby compelling her to file suit to recover funds rightfully hers, defendant is precluded from recovering attorney fees and costs even if an agreement to pay such expenses exists; and (3) that an award of attorney fees and costs in the amount of $3,757.39 is patently unreasonable.

We first consider the agreement entered into by the parties when the account was created. For purposes of this appeal we consider the agreement only as it pertains to plaintiff and defendant.

Upon deposit of Szorek’s funds, defendant required plaintiff and Szorek to execute signature cards as part of its customary process in opening a certificate of deposit account. The language of the signature card states in pertinent part:

“[A]ny other outside expense incurred relative to this agreement may be charged to it.
The undersigned agree that this account is subject to and is to be administered in accordance with the rules established by the Board of Directors for the account established herewith, and acknowledge receipt of a copy of said rules.”

Also part of the record is defendant’s disclosure statement for certificates of deposit which contains this language:

“Account Rules and Regulations for Savings and Certificate of Deposit. By signing the signature card associated with your Liberty Savings savings account and a variety of certificates of deposit, you, the account holder, have agreed that your account be bound by this agreement, now in force and to such other rules as may be changed and adopted hereafter. The agreement includes signature cards, transfer authorizations, separate written agreements used to establish and maintain the account, by-laws of the Association, State of Illinois and federal laws, and all supervisory rules and regulations. We both agree to these terms. If there is a conflict between this agreement and something said by one of our employees, the provisions of this agreement will control the determination of the difference.
8. Death or Incompetence: The Association may prohibit or restrict withdrawals upon being notified of the death or incompetence of an account holder until all the obligations according to this Agreement and the law have been met.
11. Expenses and Charges: All expenses incurred by the Association relative to this account on account of summons, subpoena, garnishment, citation, attachment, levy or any other proceedings affecting this account, including court costs and attorney’s fees, shall be charged to the account holder and may be reimbursed and deducted from this and any other account in this Association in which said account holder has an interest. The charges shall be based on the Association’s Schedule of Charges then in effect.
All joint account holders agree to the Association’s right of payment for charges of any one of the joint owners of the account.
When your account becomes involved in legal proceedings, your use of it may be restricted or prohibited. In the event the institution becomes a party to any legal proceedings between you and third persons, or between account holders, it is agreed that the account holders will pay, compensate and reimburse all liability, costs, charges and expenses, including attorney’s fees and court costs, incurred by the Institution as a result of such proceedings.”

Plaintiff argues that the printed language of the signature card was an adhesion contract, standardized and offered to the depositor without any realistic opportunity to bargain or to do anything other than acquiesce to its specified terms. While the depositor plaintiff here was asked to sign the association’s standardized form of agreement to open the account, she did not object to its terms and, of course, she could have elected to invest the funds elsewhere and sought other terms. Having chosen to open this account, plaintiff agreed to all of its terms.

Plaintiff next argues that the size of the type on the printed signature card is so small that it is unreadable without magnification and that defendant’s reliance on the signature card to establish the agreement between the parties and the knowing acceptance of its terms is contrary to the statutory requirements of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). The Act, however, does not apply to banking practices, but rather protects a consumer who purchases merchandise or home improvement services for his own use. Plaintiff argues here that the signature card was virtually unreadable, and she was unaware that the so-called agreement provided that defendant was entitled to recover litigation attorney fees and costs from the depositor should the account be legally challenged in a court of law.

It is undisputed that this account was opened in the names of Szorek and plaintiff as joint tenants with right of survivorship. Plaintiff acknowledges that she provided defendant with the identity information appearing on the signature card as “A. Szorek Walter 3-15-23 and B. Aust Judy K. (dau.) 1-13-55.” The signature card language also provided: “It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall be conclusively intended to be a gift ***.”

At the April 8, 1988, hearing plaintiffs responses to questions about events following her visit to the defendant association to open the account disclosed that she signed the card there and then took the bank book, signature cards and “papers” to Szorek and left them for his signature and to be mailed by him to the defendant. She clearly had the opportunity at that time to read its terms with any assistance needed if she so desired.

We next consider whether plaintiff had knowledge of the rules and regulations by which the account would be administered. An examination of the record discloses that on April 21, 1988, by an amendment to her response to defendant’s fee application, plaintiff alleged that the bank failed to provide depositor with the disclosure statement containing the rules and regulations referred to in the signature card. Defendant’s reply to her response attaches a copy of the disclosure statement as an exhibit. The signature card signed by plaintiff acknowledges her receipt of a copy of the rules.

Where required by the specific terms of a written contract expenses and attorney fees are recoverable. (Qazi v. Ismail (1977), 50 Ill. App. 3d 271, 273, 364 N.E.2d 595, 597; Reese v. Chicago, Burlington & Quincy R.R. Co. (1972), 5 Ill. App. 3d 450, 458, 283 N.E.2d 517, 522.) Where the language of a contract is clear and unambiguous it must be given full effect. (Harlem-Irving Realty, Inc. v. Alesi (1981), 99 Ill. App. 3d 932, 936, 425 N.E.2d 1354, 1357; Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480, 481.) An instrument may incorporate another instrument by reference and when incorporated a party to the instrument is charged with notice of all of the facts he could have discovered by diligent inquiry. Provident Federal Savings & Loan Association v. Realty Centre Ltd. (1983), 97 Ill. 2d 187, 192-93, 454 N.E.2d 249, 251; Burns v. Ford Motor Co. (1974), 29 Ill. App. 3d 585, 590, 331 N.E.2d 325, 330.

At the April 8, 1988, hearing no questions were asked of the plaintiff by any of the attorneys participating in the hearing (including her own attorney) concerning whether plaintiff did or did not receive the disclosure statement when she opened the account. However, she did testify that she left the bank book, signature card, and “papers” with Szorek upon returning from the bank. The fee petition, response, amended response and reply were all signed by the respective plaintiff and defendant attorneys but were not sworn. Furthermore plaintiff made no statement under oath either in her pleadings or by her testimony regarding whether she had received the disclosure statement. We must therefore accept her signed ac-knowledgement on the signature card that she received a copy of the rules.

The record also reveals that from 1979 to 1987 plaintiff was employed by Fairfield Savings and Loan Association and while so employed she dealt with customer deposits and accounts on a daily basis. Because of her eight years of bank experience and her familiarity with bank account documents, we find plaintiff’s disclaimer of any knowledge that by executing the signature card, she as the depositor agreed to reimburse defendant for attorney fees and litigation costs to be unpersuasive.

We next consider whether defendant acted properly in refusing to pay the account proceeds over to the plaintiff as the surviving joint tenant upon her demand following Szorek’s death. A certificate of deposit is a time deposit payable to the account owners upon the expiration of a fixed period of time. Here the account was a one-year certificate of deposit opened on February 6, 1987. In executing the signature card, plaintiff agreed to those terms. Szorek’s death occurred six weeks after the account was opened.

While the record is silent as to the exact date following Szorek’s death and before August 3, 1987, that plaintiff made a demand for payment of the account proceedings to her as surviving joint tenant, in her complaint filed on August 3, 1987, she alleges a demand and defendant’s refusal to pay well before the maturity date of the certificate.

Additionally, plaintiff presented Szorek’s death certificate, which contained two items of information different from that on the signature card. The death certificate showed his date of birth to be July 17, 1907, and his residence as 1734 N. Paulina, Chicago, Illinois, whereas the account showed the date of birth as March 15, 1923, and his residence as 3659 N. Spaulding Street, Chicago, Illinois. Plaintiff also acknowledged, and the proof of heirship in the probate proceedings confirms, that she was not Szorek’s daughter although the signature card listed her as his daughter. She furnished the erroneous information to the bank.

Defendant’s rules and regulations provide that in the event of a death of a depositor, withdrawals may be prohibited or restricted until all legal obligations are met. The defendant had the responsibility to require appropriate proof of identity for the decedent when plaintiff made a demand for payment prior to the maturity date of the certifícate of deposit.

Where competing claims are made for a fund and where those adverse claims may expose the holder of the fund to double liability, the Illinois Code of Civil Procedure provides for the remedy of interpleader to relieve the stakeholder of the burden and peril of weighing the relative merits of the claims. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 409; Aetna Life Insurance Co. v. Strickland (1975), 33 111. App. 3d 52, 55, 337 N.E.2d 285, 287.) The court had the authority and the responsibility for determining the rights of parties who claim competing interests while the caretaker of the fund does not possess the legal knowledge to evaluate conflicting facts to a binding resolution. (Aetna, 33 Ill. App. 3d at 55, 337 N.E.2d at 287.) Faced with the challenge of adverse claims on the funds, defendant had the duty not only to respond to the citation and declaratory judgment actions, but to file a counterclaim in interpleader to resolve the ownership controversy, as it did. Defendant was indifferent as to the success of either plaintiff or administrator and was obligated and willing to pay the money to the one found by the court to be entitled to it; having filed its counterclaim in interpleader, defendant has fulfilled its duty with regard to the funds. Aetna, 33 Ill. App. 3d at 56; In re Estate of Chandler (1980), 90 Ill. App. 3d 674, 413 N.E.2d 486; In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 441 N.E.2d 158; Franklin v. Anna National Bank (1983), 115 Ill. App. 3d 149, 450 N.E.2d 371; Williams v. Federal Deposit Insurance Co. (1987), 155 Ill. App. 3d 633, 508 N.E.2d 337.

We find that the defendant acted responsibly with regard to this account in questioning her right to payment when plaintiff requested payment to her of the entire account balance in advance of the account maturity date and presented a death certificate which failed to conform with identity information given when the account was opened.

The account was inventoried in Szorek’s estate on June 12, 1987, and on August 17, 1987, defendant was served with summons in the proceedings for citation to recover assets filed by the estate administrator. On August 7, 1987, defendant was served with summons in plaintiffs declaratory judgment suit, and on September 3, 1987, defendant filed its counterclaim in interpleader against the administrator in the probate proceedings. Both the citation to recover assets in the estate administration and plaintiff’s complaint for declaratory judgment against defendant were filed on August 3,1987.

Thus, when faced with competing claims for the account funds, defendant had the responsibility to preserve the assets until the court determined an appropriate payee. The defendant responded to both the citation proceedings and the declaratory judgment suit and filed its counterclaim in interpleader for leave to deposit the funds with the court upon determination of the rightful payee. The court consolidated the proceedings and transferred them to the probate court for determination of all questions of law at one time.

This determination was made by the probate judge on April 8, 1988, and defendant thereupon paid the funds over to plaintiff, except for the $3,500 ordered reserved and held pending hearing on defendant’s petition for fees and costs.

Nevertheless, plaintiff argues that an award of attorney fees to defendant was not appropriate because defendant was the unsuccessful litigant here. She argues that defendant never had exposure to liability other than the amount of the account proceeds and interest and that defendant was protected from liability to any party other than plaintiff as surviving joint tenant by statutory provision. (Ill. Rev. Stat. 1987, ch. 17, par. 3304 — 8.) Plaintiff additionally argues that defendant’s expenditure of more than 40 hours of legal services was unnecessary and that as the prevailing party any fee award she is required to pay to defendant is unreasonable.

Where it is necessary that defendant participate in litigation defending the fund against adverse claims and where the agreement creating the funds expressly authorized attorney fees and costs for such litigation, a reasonable fee award was proper. Williams, 155 Ill. App. 3d at 639, 508 N.E.2d at 342; Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424, 429.

The determination of the reasonableness of the fees is left to the sound discretion of the court. (Kaiser, 164 Ill. App. 3d at 983, 518 N.E.2d at 429.) The party seeking such fees has the burden of presenting sufficient evidence to enable the court to determine the reasonableness of the fee award. Kaiser, 164 Ill. App. 3d at 983, 518 N.E.2d at 429; In re Estate of Healy (1985), 137 Ill. App. 3d 406, 409, 484 N.E.2d 890, 893.

Plaintiff argues that attorney fees are never awarded to the unsuccessful litigant (Kolkovich v. Tosolin (1974), 19 Ill. App. 3d 524, 530, 311 N.E.2d 782, 788) and that in the absence of statute or agreement authorizing them such fees are not allowed to the successful litigant (Kolkovich, 19 Ill. App. 3d at 530, 311 N.E.2d at 788).

We find that defendant was neither the successful nor unsuccessful litigant here, but rather merely held funds for the benefit of an appropriate payee. By its agreement with the depositors and by all statutory requirements imposed by the legislature for the defendant’s administering of the certificate of deposit funds (Ill. Rev. Stat. 1987, ch. 17, par. 3304 — 8), defendant was required to pay the funds to the party legally entitled to them, and only after compliance with all legal requirements and resolution of disputed claims.

Here, the defendant properly questioned discrepancies in the identity of Szorek as the account holder when plaintiff produced documentation of his death. When the competing claims of the joint tenant and the administrator of Szorek’s estate were made or became known, defendant properly responded by seeking a court determination of the appropriate party entitled to payment of the funds. However, when defendant moved for leave to pay the funds to the clerk of the court and to be excused from further participation in the resolution of the competing claims, plaintiff objected. Plaintiff’s resistance to defendant’s motion made it necessary that defendant fully participate in all phases of the litigation from August 3, 1987, to April 8, 1988; i.e., eight months of litigation exclusive of the dispute over defendant’s attorney fees.

Plaintiff does not dispute the actual number of hours spent or the hourly charge for the legal services rendered. The only dispute is whether the services were necessary, and if they were, whether plaintiff as the successful litigant should pay them.

We find the legal services were necessary and that by the express terms of the signature card agreement and the rules incorporated by reference, plaintiff is obligated to pay these charges. The trial court heard argument of counsel, was familiar with the procedural events that had taken place in this case and had the attorney’s affidavit and time sheets to support the request for fees. We find no error or abuse of discretion by the trial judge in determining the amount of the fees and no error in assessing them against the plaintiff.

Defendant seeks an award of its attorney fees and costs incurred in defending this appeal. We find that the language of the written agreement executed by the parties and the rules and regulations incorporated therein which provides that attorney fees and litigation costs shall be charged to the account of the holder applies also to fees and costs on appeal. For these reasons we find that defendant is entitled to recover its attorney fees and costs in defending this appeal.

For all of the foregoing reasons, the judgment of the trial court is affirmed. This cause is remanded to the trial court for a determination and award to defendant of attorney fees and costs incurred in defending the appeal.

Judgment affirmed. Remanded to the trial court for further proceedings consistent with this opinion.

Judgment affirmed and cause remanded.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    HARRIS TRUST AND SAVINGS BANK, as Trustee, et al., Plaintiffs-Appellants, v. ILLINOIS FAIR PLAN ASSOCIATION, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—3267
    Opinion filed February 20, 1990.

      Jack F. Kocur, of LaGrange Park, appellant pro se.

    Bixby, Lechner, Yamaguchi & Potratz, P.C., of Chicago (David C. Lech-ner, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from the denial of a motion to vacate an order dismissing this case with prejudice. The issues raised are: (1) whether the trial court erred in denying plaintiff’s motion to vacate the dismissal order, and (2) whether plaintiff is entitled to relief pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). We affirm.

Plaintiff, Jack E Kocur, was the owner of an apartment building insured for fire loss by defendant, Illinois Fair Plan Association (IFPA). The building was damaged by three fires, all occurring in March 1977. Plaintiff filed a complaint against IFPA on September 13, 1977, which was dismissed for want of prosecution on October 4, 1982. Plaintiff filed a second complaint on September 30, 1983. In its answer, IFPA denied that the policy was in full force and effect and further stated that plaintiff was in violation of certain conditions of the policy pertaining to the use, condition and occupancy of the building. Defendant also stated that an agreement had been entered into on May 8, 1978, between plaintiff’s adjuster and defendant to settle plaintiff’s claims resulting from the 1977 fires.

On August 12, 1988, the case was dismissed with prejudice based on the plaintiff’s attorney having allegedly accepted defendant’s offer of $47,000. After the dismissal order was entered, plaintiff signed a release and defendant signed a release of its counterclaim against plaintiff. Plaintiff, now appealing pro se, disputes that a settlement was reached and contends that he signed the settlement and release on August 22, 1988, only as a result of coercion by his attorney.

Subsequent to the entry of the dismissal order, Mr. Mitchell Za-drozny made a claim to be added as a payee on the settlement draft, based on a junior mortgage on the subject property.

On September 9, 1988, through his then counsel, plaintiff filed a motion requesting the trial court to enforce the settlement but determine that the lien claimant had no right to the settlement proceeds. Paragraphs 3 and 4 of plaintiff’s motion stated that the case had been settled for $47,000.

The motions concerning the appropriate payees on the draft were initially heard on September 22, 1988, and’ continued to October 5, 1988. On September 29, 1988, plaintiff filed a pro se motion to vacate the settlement. A notice of motion was served on counsel for IFPA indicating only that plaintiff was requesting the court to dismiss his counsel from the case. No notice was sent to IFPA.

At the October 5 hearing, IFPA through its counsel objected to Kocur’s motion as being untimely as it was filed more than 30 days from the date of the dismissal order. IFPA, through its counsel, was represented at that hearing only on the issue of who should be on the settlement draft. Plaintiff’s September 9 motion, requesting that the settlement draft not include Mr. Zadrozny as a payee, was granted. Plaintiff now brings this appeal.

Plaintiff contends that the August 12, 1988, order of dismissal should be vacated as he had not authorized the alleged settlement agreement and had signed the settlement and release only under coercion and duress. He further contends that his September 9, 1988, motion seeking to enforce the settlement agreement or, in the alternative, vacate the agreement and set the matter for trial was a timely appeal from the dismissal order. Plaintiff relies on Glenner v. Chicago Transit Authority (1972), 9 Ill. App. 3d 323, 292 N.E.2d 217, and McMillin v. Economics Laboratory, Inc. (1984), 127 Ill. App. 3d 517, 468 N.E.2d 982.

Pursuant to section 2 — 1203 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203), a trial court is without jurisdiction to hear a motion to vacate a final dismissal order filed more than 30 days after the order has been entered. After the 30-day period has passed, relief is available only through compliance with section 2 — 1401(a) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(a)). Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381.

The only motion filed within 30 days of the dismissal order was the September 9, 1988, motion requesting the court to enforce the settlement and determine that Mitchell Zadrozny had no right to the settlement proceeds. While the motion requested in the alternative that the settlement be vacated and the matter set for trial, the motion acknowledged the settlement in the amount of $47,000 and addressed only the matter of whether Mr. Zadrozny or Chicago Title and Trust should be issued checks out of the settlement. That motion did not seek to set aside the dismissal on the basis that the plaintiff had not agreed to the settlement or that the settlement had been coerced. Moreover, plaintiff was essentially granted the relief he requested.

The motion seeking to set aside the settlement on the basis of coercion was not filed until September 29, 1988, more than 30 days after the entry of the dismissal order, and therefore, not in compli-anee with section 2 — 1203 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203). Thus the trial court lacked jurisdiction to consider the untimely motion. The question remains whether plaintiff was nonetheless entitled to relief pursuant to section 2 — 1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401).

Section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) provides a procedure for vacating final orders, judgments and decrees after the initial 30-day appeal period has passed. A petition brought under section 2 — 1401 is subject to the following requirements:

“(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b).

The rule referred to above is Supreme Court Rule 106 (87 Ill. 2d R. 106), which provides:

“Notice of the filing of a petition under section 2 — 1401 of the Code of Civil Procedure for relief from a final judgment after 30 days from the entry thereof shall be given by the same methods provided in Rule 105 for the giving of notice of additional relief to parties in default.”

Supreme Court Rule 105, in turn, provides that notice shall be directed to the party, and must be served either by summons, by prepaid certified or registered mail, or by publication. 87 Ill. 2d R. 105.

In order to gain relief under section 2 — 1401, the petitioner must set forth specific factual allegations satisfying each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381.) Whether to grant or deny a section 2 — 1401 petition is within the sound discretion of the trial court, and this court may not disturb the judgment of the trial court absent an abuse of that discretion. Airoom, 114 Ill. 2d at 221.

In the present case, plaintiff has failed to comply with both the procedural and substantive requirements of section 2 — 1401. First, plaintiff did not comply with the notice requirements of Supreme Court Rules 105 and 106 in that no notice was given to IFPA. Although notice was given to IFPA’s counsel, notice only to counsel for the opposing party is insufficient to satisfy the requirements of section 2 — 1401. Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 240, 454 N.E.2d 806.

Plaintiffs notice of motion also was insufficient in that it failed to inform defendant that plaintiff intended to raise the issue of the alleged coercion of his attorney at the October 5, 1988, hearing. A notice of motion must specifically inform the opposing party as to the matters the movant intends to address, and the trial court lacks jurisdiction to consider matters not requested in the notice of motion. (Vortanz v. Elmhurst Memorial Hospital (1989), 179 Ill. App. 3d 584, 590, 534 N.E.2d 625.) Plaintiffs notice of motion filed on September 29, 1988, stated only that he was seeking to dismiss his attorney from the case and, thus, was insufficient to confer jurisdiction on the trial court below.

Plaintiff’s petition also fails to satisfy the substantive requirements of section 2 — 1401. Although the delay in raising the alleged coercion was somewhat less than two months, plaintiff’s motion does not allege due diligence in bringing the matter to the trial court’s attention. Moreover, plaintiff concedes that as of August 12 or 15, he was aware of the settlement, although he claims not to have authorized it. Plaintiff thus knew of his defense within three days of the dismissal order but waited until September 29 to bring the matter to the trial court’s attention.

Plaintiff does make the argument that the dismissal of the August 12, 1988, order should be vacated based on a mistake of fact, as he was misinformed by his attorney and subsequently coerced into signing the settlement agreement. However, he cites no authority to support his contention that the alleged coercion by his attorney is sufficient to require relief under section 2 — 1401. A similar argument was raised in Dassion v. Homan (1987), 161 Ill. App. 3d 141, 514 N.E.2d 41, in which the plaintiffs sought relief under section 2 — 1401 based on allegations that their attorney had made fraudulent representations which led them to consent to the dismissal of their lawsuit. The court rejected that argument, stating that section 2 — 1401 cannot be used to relieve parties from the consequences of their own mistakes or their attorney’s deception. Dassion, 161 Ill. App. 3d at 145.

Both Glenner v. Chicago Transit Authority (1972), 9 Ill. App. 3d 323, 292 N.E.2d 217, and McMillin v. Economics Laboratory, Inc. (1984), 127 Ill. App. 3d 517, 468 N.E.2d 982, relied upon by plaintiff, are distinguishable. In Glenner, the court held that the trial court had abused its discretion by refusing to vacate a dismissal order where the plaintiff contended that the trial court itself had coerced him into accepting a settlement agreement. Glenner, 9 Ill. App. 3d at 326.

Similarly, in McMillin, this court affirmed an order vacating an order of dismissal where it was shown that neither plaintiffs nor their attorney had agreed to a settlement and the motion to vacate was timely. (McMillin, 127 Ill. App. 3d at 526-27.) Neither case involved motions filed more than 30 days after the initial order had been entered and thus neither is dispositive here.

One final matter remains to be addressed, Plaintiff has argued that the defendant would not be prejudiced by vacating the dismissal order and conducting an evidentiary hearing, a contention which is not supported by the record. As defendant points out, the fires which led to the initial complaint occurred in March 1977. Although the original suit was filed within one year, as required by the provisions of the insurance policy, it was dismissed for want of prosecution on October 4, 1982. The case was refiled on September 30, 1983, and was assigned for trial on August 11, 1988. Defendant has twice been required to make substantial preparations for settlement or trial, and we agree that to now require defense witnesses to testify to conditions of plaintiff’s building and plaintiff’s lack of maintenance, based on observations made almost 14 years ago, would unfairly prejudice defendant.

Accordingly, the order of the trial court denying plaintiff’s motion to vacate the dismissal of this case with prejudice is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE DiVITO

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. JEFFREY CARIOTO, Defendant (Jenner L. Evans, Defendant-Appellant).
    First District (2nd Division)
    No. 1—88—2384
    Opinion filed February 20, 1990.

      Michael R. Panter & Associates, of Chicago (Michael R. Panter, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (C. Morse, Joshua G. Vincent, and H. Wesley Sunu, of counsel), for appellee.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Defendant-appellant Jenner L. Evans appeals from an order of the circuit court granting Allstate Insurance Company (Allstate) summary judgment in a declaratory judgment action. Allstate sought a judicial determination of its obligation to defend and indemnify its insured, Jeffrey Carioto, in a personal injury action brought by Evans. In that personal injury suit, which is still pending, Evans claims that Carioto acted either negligently or intentionally when, on February 28, 1982, he repeatedly stabbed Evans during the course of an armed robbery. Prior criminal proceedings against Carioto resulted in Ca-rioto’s entry of a plea of guilty to attempted murder.

The issues raised on this appeal are (1) whether Allstate’s suit is premature, notwithstanding an intentional acts exclusionary clause of the insurance policy, Carioto’s plea of guilty to attempted murder, and certain admissions made by Carioto at his deposition; (2) whether Allstate is estopped to assert the defense of noncoverage under the intentional acts exclusionary clause, because it retained a law firm with which it regularly did business to represent Carioto in the underlying tort action without fully disclosing its conflict of interest; (3) whether there is a question of fact as to “intent” precluding summary judgment; and (4) whether the 31-month delay in giving Allstate notice was timely, where Carioto forwarded the complaint and summons in the civil tort suit immediately upon being served, was a 19-year-old, mentally unstable alcoholic, and would not have known that a civil tort suit could result from an armed robbery and attempted murder.

On February 28, 1982, Jeffrey Carioto, the insured in this case, assaulted and repeatedly stabbed Jenner L. Evans during the course of an armed robbery on Rush Street in Chicago. Evans, a St. Louis, Missouri, resident, was staying at a friend’s apartment on North La Salle Street near Elm Street while in Chicago on business. He walked to a Division Street restaurant where he bought some food to take out. He paid for the food with a $50 bill, left the restaurant, and began walking back to his friend’s apartment.

Carioto and another man, John Haepp, saw Evans pay for his food with a $50 bill. The two men decided to rob Evans and followed as he left the restaurant. Carioto, armed with a four-inch blade knife, told Haepp that “he was going to stab the man and kill him.”

As Evans walked west on the north side of Elm Street and was nearing La Salle Street, he heard shouts, turned, and saw the two men approaching him. Carioto brandished his knife and demanded Evans’ money. Evans threw his money on the ground toward the men. Haepp then tackled Evans, and Carioto joined in the struggle on the ground. Carioto repeatedly stabbed Evans with the knife, using an up-and-down motion with his arm. After five minutes, Haepp retreated, having been stabbed himself by Carioto. Carioto remained, however, and continued to stab Evans. Evans finally wrested the knife from Carioto, who then also fled. The physicians who examined and treated Evans found 15 to 17 separate stab wounds on various parts of Evans’ body.

Carioto was arrested; pled guilty to attempted murder; and was sentenced to 15 years’ imprisonment. At his sentencing hearing, he offered in mitigation the findings of Dr. Robert Wettstein, who found him to be a mental patient with severe psychological problems who was under the influence of alcohol and drugs when he assaulted Evans.

In 1983, Evans filed a civil suit for tort damages against Carioto and others. Only count I of Evans’ original complaint was directed against Carioto. That count sought compensatory and punitive damages for assault. Count III alleged negligence against Carioto’s mother for failing to supervise and control Carioto. Carioto was served at Logan Correctional Center in August 1984. He forwarded the suit papers to an attorney, who in turn forwarded them to Allstate, with which Carioto’s mother carried homeowner’s insurance. Allstate retained the firm of Williams & Montgomery to represent Carioto’s mother, but rejected the tender of Carioto’s defense under the insurance policy’s intentional acts exclusionary clause, which excludes coverage for “bodily injury or property damage intentionally caused by an insured.”

On June 10, 1985, Evans filed a third amended complaint which added a count alleging for the first time that Carioto’s acts were “careless and negligent.” Evans’ amended complaint alleges Ca-rioto’s conduct to have been “careless and negligent” in the following respects:

“(a) [Carioto and Haepp] carelessly and negligently fell on and/or came into contact with Plaintiff [Evans] in such manner as to cause him injuries;
(b) [Carioto and Haepp] carelessly and negligently failed to refrain from avoiding Plaintiff;
(c) [Carioto and Haepp] carelessly and negligently struck and/or came into contact with Plaintiff with their hands and bodies and/or weapons without any ‘present intention to inflict injury upon Plaintiff.” (Emphasis added.)

Allstate then retained Williams & Montgomery to represent Ca-rioto. Before entering an appearance for Carioto, Williams & Montgomery sent Carioto a letter seeking his consent to the representation. In that letter, dated September 24, 1985, Williams & Montgomery stated that its representation of Carioto created a conflict of interest. The letter explained that it was in Allstate’s interest to have Carioto’s acts construed as intentional, but in Carioto’s interests to have the acts construed as negligent; that if Carioto consented to the representation by Williams & Montgomery, the firm would “do the utmost to defend [Carioto] to the best of [its] ability”; that Carioto was free to choose his own attorney at Allstate’s expense; that Allstate would probably “take the position that they do not have coverage for Count I”; and that Williams & Montgomery would be paid by Allstate to represent Carioto. The letter did not mention the possibility of a suit by Allstate for declaratory relief, nor did it explain that Williams & Montgomery regularly represented Allstate in other matters. Carioto signed the letter on September 27, 1985.

On January 7, 1986, Allstate commenced this action for declaratory relief, alleging that it was not obligated to defend or indemnify Carioto against any of Evans’ claims because of the intentional acts exclusionary clause in the insurance policy and the late notice of the claim.

On April 21, 1987, Allstate moved for summary judgment. Allstate argued that Carioto’s guilty plea to attempted murder established as a matter of law that he either intended or expected to cause bodily injury to Evans and was thus not entitled to liability insurance coverage. Allstate also argued that it was entitled to declaratory relief on the basis of late notice of the occurrence.

Before responding to Allstate’s summary judgment motion, Evans took Carioto’s deposition. Carioto was prepared for the deposition by Williams & Montgomery. Carioto testified that he knew Evans had filed a lawsuit against him, which could result in a large money judgment against him for damages. He was then advised by Evans’ counsel: that he “would owe this money judgment for the rest of [his] life or until [he] paid it”; that such a “judgment would not be discharge-able in bankruptcy” if it were to be determined that Carioto “intended to do what [he] did to Mr. Evans”; but that if it should be decided that Carioto “did not have the intent to do what [he] did that possibly [Allstate] would have to pay all or part of the judgment.” After similar comments again were made to Carioto, he asserted on further questioning that he “didn’t want to hurt anybody.”

Upon further questioning, Carioto testified that he knew the State was required to prove every element of the attempted murder charge against him by saying:

“I know that’s the State’s job. Whether or not it was — I mean, yes, this would have to be. That is their job. That’s what they’ve got to do, don’t they? I mean the State’s job is to prosecute me as the defendant. And if that’s the case, they’d have to find an intent.
Q. And knowing that, what you’ve just said, you made the plea of guilty to the crime of Attempted Murder?
A. Well, that’s correct.”

Still later in his deposition, Carioto testified that he remembered receiving a complaint in this lawsuit brought by Evans against him, and the following questions were put to and answers were given by him:

“Q. And you read through that complaint?
A. I read through it, yes.
Q. And do you remember reading allegations in that complaint made against you stating that you were careless and negligent in causing these injuries to Mr. Jenner Evans?
A. Yes. The reason why it stands out so much is because it was — well, it just doesn’t sound proper.
Q. And why doesn’t it sound proper?
A. Well, because of the words, the choice of words that they decided to use. I’m not very smart, but there’s not much negligence in doing what was written on it saying what I done and I’m not proud of it and I’m not making some kind of humor or sarcasm here, but that wasn’t all the most intelligent way of putting it as far as I’m concerned.
Q. So it wasn’t really an accident, it was as careless and negligent might put it out to be, it’s more from what you’ve read the intended acts that you did?
A. It was not — I’d have to say yes because that is what helped determine my pleading of guilty, although this suit wasn’t into effect at the time. The facts were the facts on my case and there was no show there of any intent.
Q. So your guilty plea of Attempted Murder was that you intended to attempt murder and that’s what the facts were?
A. It’s not the way I would like to look at it now, but it is the truth, yes.” (Emphasis added.)

Evans filed a motion to dismiss the present suit as premature because of the pending tort case. Evans also responded to Allstate’s summary judgment motion, arguing that Allstate was estopped to assert its policy coverage defense by having “participated” in Carioto’s defense in the underlying tort action in the face of a conflict of interest; that the declaratory judgment action was premature because the same issues are still being litigated as the tort action; that summary judgment was inappropriate because a question of fact existed concerning Carioto’s intent; and that Carioto gave timely notice to Allstate of the claim against him. Evans’ motion to dismiss was denied and Allstate’s motion for summary judgment was granted.

I

Evans maintains first that Allstate’s declaratory judgment action was premature because the question of Carioto’s intent was an “ultimate fact” yet undetermined in the pending tort action. Allstate concedes that a declaratory action is premature when it has the effect of resolving ultimate issues in the underlying tort action. However, relying on Mid America Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App. 3d 1121, 441 N.E.2d 949, Allstate argues that Carioto’s guilty plea, together with the admissions at his deposition, establish that the nature of his conduct could never be an “ultimate issue” in the tort action.

As a general rule, insurers are encouraged to resolve coverage problems by filing declaratory judgment actions. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 199, 193 N.E.2d 123.) As “narrow exceptions” to that procedure, Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24, and Thornton v. Paul (1978), 74 Ill. 2d 132, 159, 384 N.E.2d 335, recognize that in instances where bona fide controversies arise over the issue of negligence versus intentional conduct, declaratory judgment actions are generally inappropriate. This is because declaratory judgments prior to the resolution of the underlying tort case might resolve “an issue crucial to the insured’s liability in the personal injury action and also one on which punitive damages could ultimately be assessed *** in a purely ancillary proceeding with the plaintiff and defendant in the personal injury action both aligned on the same side as defendants in the declaratory judgment action.” Thornton v. Paul (1978), 74 Ill. 2d 132, 159, 384 N.E.2d 335.

We do not believe a bona fide controversy exists, however, where the insured’s conduct, a criminal conviction resulting from that conduct, and judicial admissions made by the insured, together provide conclusive evidence that the conduct was intentional. (See Mid America Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App. 3d 1121, 441 N.E.2d 949.) In this case, the nature of the assault against Evans, and the initial allegations made by Evans in his suit against Carioto, are certainly consistent with Allstate’s contention that Carioto’s conduct was intentional. The complaint filed against Carioto on February 25, 1983, was for assault committed willfully and maliciously with force and arms against Evans. There is no question that such conduct is excluded under the Allstate homeowner’s policy. Two and one-half years later, the third amended complaint alleged that Carioto’s actions were merely “careless and negligent” in “falling on” or “failing to avoid” or “negligently striking” Evans. We find these allegations facetious, given that Carioto announced his intent to stab Evans; brandished his knife in order to effect the robbery; after receiving the object of the robbery, Evans’ money, joined his accomplice in the struggle on the ground; and stabbed Evans 17 times even after his accomplice withdrew.

Carioto’s guilty plea to attempted murder is further evidence that he acted intentionally. We recognize that a criminal conviction is only prima facie, not conclusive, evidence of an insured’s intent. (See Thornton v. Paul, 74 Ill. 2d at 151; State Farm Fire & Casualty Co. v. Shelton (1988), 176 Ill. App. 3d 858, 862, 531 N.E.2d 913.) In State Farm Fire & Casualty Co. v. Shelton, for example, this court squarely rejected State Farm’s claim that declaratory relief was appropriate before resolution of the underlying wrongful death action because the insured had been convicted of voluntary manslaughter following a bench trial. Carioto’s guilty plea to attempted murder likewise did not, by itself, establish intentional conduct as a matter of law. In Shelton, however, the only evidence of intentional conduct was the insured’s criminal conviction. In this case, by contrast, there is further evidence of intentional conduct in the nature of the assault against Evans, discussed above, and in Carioto’s judicial admissions. Specifically, Carioto stated at his deposition that he intended to injure Evans after being told by an attorney present that the lawsuit could result in a large money judgment against him which he would owe for the rest of his life, and that it would not be dischargeable in bankruptcy if it were found that he intended the injury, but that the insurance company might have to pay part or all of that judgment if he did not intend to injure Evans.

We believe that the nature of the assault against Evans, Ca-rioto’s guilty plea, and his judicial admissions together provide conclusive evidence of intentional conduct. This conclusion is supported by Mid America Fire & Marine Insurance Co. v. Smith. In that case, the insured pled guilty to the charge of criminal battery after he had kicked someone in the head. The injured person brought a tort action against the insured. Before resolution of that action, the insurer brought a declaratory judgment action, claiming it had no duty to defend or indemnify the insured. The insured was deposed and admitted that he intended to kick the tort plaintiff in the head. The trial court granted summary judgment in favor of the insurer, and the appellate court affirmed on the ground that the insured’s guilty plea and admission at his deposition were conclusive evidence of intent. We likewise find conclusive evidence of intent and reject Evans’ contention that this declaratory judgment action was brought prematurely.

Our conclusion does not rest on Bay State Insurance Co. v. Wilson (1983), 96 Ill. 2d 487, 451 N.E.2d 880, relied on by Allstate. We find that case distinguishable on the ground that the declaratory judgment action went forward only after resolution of the underlying tort action, so that the declaratory judgment court had the full benefit of a trial transcript in determining the question of intent. Indeed, this court has recently noted that “Bay State reinforces the need for a resolution of the tort litigation before the declaratory judgment court decides the coverage issue. Only then can it determine if the insurance company must indemnify the insured based on the language of the policy.” (State Farm Fire & Casualty Co. v. Shelton, 176 Ill. App. 3d at 866, 531 N.E.2d 913.) We do not intend to depart from this principle by our conclusion in this case. Rather, we believe it is proper for a declaratory judgment court to decide the coverage issue before resolution of the tort action in the rare case, such as this one, where there is conclusive evidence that the insured acted intentionally.

II

We consider next Evans’ contention that the representation of Carioto by Williams & Montgomery, retained by Allstate, was not undertaken after full disclosure of Williams & Montgomery’s conflict of interest. Evans argues that Allstate “participated” in Carioto’s defense in the underlying tort action by retaining Williams & Montgomery to defend Carioto, so that Allstate is estopped to assert the defense of noncoverage based on Carioto’s intentional conduct. Evans maintains that Allstate’s only course of action was to obtain independent counsel to defend Carioto, otherwise a classic conflict of interest is created whereby Allstate benefits by a “less-than-vigorous” defense of its insured.

Under Illinois law, where there is a conflict of interest, an insurer is generally estopped to assert a defense of noncoverage where the insurer undertakes to defend its insured in the underlying tort action without reserving its rights. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 195, 355 N.E.2d 24.) This is because control over the insured’s defense might affect coverage under the policy, so that if the insurer is silent about policy defenses, the insured might rely to his detriment on counsel selected and paid for by the insurer. Moreover, counsel regularly employed by the insurer faces an ethical dilemma if he also defends the insured in the underlying tort action because of the competing financial interests of the insured and the insurer. Ill. Code of Professional Responsibility, Ethical Considerations 5 — 14, 5 — 15, 5 — 17 (1970).

However, “[i]f [the insured] is willing to accept the defense furnished by the attorney engaged by [the insurer] after full disclosure to him by the attorney of the conflicting interests, the requirement of the Code of Professional Responsibility will be satisfied.” (Maryland Casualty Co. v. Peppers, 64 Ill. 2d at 198.) The insured’s consent to representation by counsel selected by the insurer after full disclosure also permits the insurer to raise the defense of non-coverage in a suit on the policy. Maryland Casualty Co. v. Peppers, 64 Ill. 2d at 198-99.

In this case, Williams & Montgomery, regularly employed by Allstate, sent Carioto a three-page “Peppers letter,” which disclosed that Williams & Montgomery was being paid by Allstate and that a conflict of interest would arise if Williams & Montgomery undertook Carioto’s defense. Specifically, the letter explained that it would be in Allstate’s interest to have a determination that Carioto intentionally injured Evans and that Carioto was free to select his own attorney at Allstate’s expense. Carioto signed the letter and returned it to Williams & Montgomery.

However, the letter did not reveal that Williams & Montgomery was regularly employed by Allstate. The letter explained that it would be in Allstate’s interest to have a determination that Carioto intentionally injured Evans, but did not explain how Allstate’s interest in this regard created a conflict of interest for Williams & Montgomery. After Carioto “consented” to the representation, an attorney from Williams & Montgomery prepared him for his deposition in this suit. Allstate now relies on admissions made by Carioto at that deposition. We also note that Williams & Montgomery never retained an expert to prove that alcohol, drugs, or psychological problems impaired Carioto’s intent and never requested a stay in this action pending resolution of the underlying tort case.

We do not believe that Carioto’s representation by Williams & Montgomery contravened the principles set forth in Peppers such that Allstate is estopped to assert the defense of noncoverage in this declaratory judgment action. We do, however, strongly discourage the practice followed by Williams & Montgomery in this case. We note in particular that we would be more inclined to find a declaratory judgment action premature on the ground that a bona fide controversy exists regarding intent, if the insurer relies on judicial admissions made by an insured represented by a law firm retained by the insurer without full disclosure of the conflict of interest. Although such was the case here, as discussed above, our conclusion also rests on further evidence of intent in Carioto’s guilty plea and in the nature of the assault against Evans.

Ill

We consider next Evans’ contention that summary judgment was inappropriate because a material question of fact existed as to whether Carioto intended to injure Evans. Evans argues that it is undisputed that Carioto was intoxicated at the time of the occurrence and whether Carioto’s intoxication negated his intent is a question for the jury. Allstate concedes that Carioto was intoxicated, but argues that Carioto’s intoxication could not, as a matter of law, negate intent in this case, because intoxication is not a defense to a general intent crime and “general intent” is the level of intent which the policy exclusion contemplates.

Initially, we note that there is little support for Allstate’s argument that “intent” for purposes of an exclusionary clause in an insurance policy is identical to “general intent” as that term is understood in criminal cases. Allstate’s reliance on Cowan v. Insurance Co. (1974), 22 Ill. App. 3d 883, 318 N.E.2d 315, in particular, is misplaced. In that case, the court construed an exclusionary clause similar to Allstate’s as requiring a “specific intent” to cause harm to a third party. The court stated that “neither willful, wanton, or reckless misconduct amounts to a specific intent to cause injury.” (Cowan v. Insurance Co., 22 Ill. App. 3d at 893.) These are mental states commonly associated with general intent crimes, so that Cowan actually supports Evans’ contention that “intent” for purposes of an exclusionary clause is not the same as “general intent.”

Allstate’s reliance on Mid America Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App. 3d 1121, 441 N.E.2d 949, is likewise misplaced. In that case, the court noted that intent for purposes of tort liability is distinct from intent for purposes of an insurance policy’s exclusionary clause. The court observed that other jurisdictions found intent for purposes of a policy exclusion “regardless of whether the tort defendant intended the specific injury as long as that defendant intended to injure the particular victim.” (Mid America Fire & Marine Insurance Co. v. Smith, 109 Ill. App. 3d at 1123.) It does not follow, however, that intoxication could not negate intent for purposes of an exclusionary clause. Indeed, in Smith, the court considered the question of whether the insured was so intoxicated that he could not form the requisite intent to injure. The court rejected the insured’s contention that he could not form the requisite intent only because the insured admitted at his deposition that he was not intoxicated. See also Badger Mutual Insurance Co. v. Murry (1977), 54 Ill. App. 3d 459, 464, 370 N.E.2d 295 (insured’s conduct within exclusionary clause because, among other reasons, insured was “not so intoxicated as to be unable to realize the probable results of his actions”).

As in Smith and Murry, we believe the question of Ca-rioto’s intoxication must be considered before it can be decided whether his conduct fell within the scope of the exclusionary clause in the insurance policy. As in Murry, we believe intoxication might negate intent for purposes of an exclusionary clause, but only if the insured was so intoxicated that he was not able to realize the probable results of his actions. Although we believe this question is ordinarily one for the trier of fact, we do not believe there is a material issue of fact regarding intoxication in this case, given Carioto’s own admissions that he intended to harm Evans and the psychiatric evidence that he was able to appreciate the criminality of his conduct. The psychiatric report in the record indicates that Carioto had a history of violent and aggressive behavior and that his consumption of alcohol did not cause a loss of consciousness, hallucination, delusion, neurological dysfunction, or seizure disorder. The report concluded that “there was no sign of severe mental disturbance at a level of loss of reality contact at the time of or immediately subsequent to the alleged incidents.” This record, we believe, belies Evans’ contention that a material question of fact exists regarding the effect of Carioto’s intoxication on his ability to form the requisite intent.

IV

Finally, Evans maintains that Allstate was not entitled to summary judgment on the basis of late notice, because the notice was reasonable under all the facts and circumstances of this case. Although we are affirming summary judgment in favor of Allstate for the reasons discussed above, for the reasons given below, we agree with Evans that Allstate was not entitled to summary judgment on the basis of late notice.

The purpose of a notice requirement in an insurance policy is to enable the insurer to make a timely and thorough investigation of the insured’s claim. (Barrington Consolidated High School v. American Insurance Co. (1974), 58 Ill. 2d 278, 281, 819 N.E.2d 25.) Notice to the insurer must be reasonable under the facts and circumstances of each case. Barrington Consolidated High School v. American Insurance Co., 58 Ill. 2d at 281; Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 581, 485 N.E.2d 1281.

In this case, Carioto assaulted and stabbed Evans on February 28, 1982. In August 1984 he was served with the summons and complaint in Evans’ tort action while in prison at Logan Correctional Center. He directly turned the papers over to an attorney, who then forwarded them to Allstate. Under the circumstances of this case, Allstate received timely notice. Carioto, a psychologically disturbed 19-year-old serving a 15-year prison sentence, could not reasonably be expected to know that Evans might file a civil suit against him and certainly could not be expected to know that the tort claims might be covered under his mother’s homeowner’s insurance policy. Furthermore, there is no indication in the record that Allstate was prejudiced by any delay in notice. See Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealers Services, Inc., 138 Ill. App. 3d at 581, 485 N.E.2d 1281 (absence of prejudice to the insurer is a factor in considering reasonableness of notice).

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


text:
    CONSTANCIA LARA, Plaintiff-Appellant, v. THORO-MATIC VACUUM SYSTEMS, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—0261
    Opinion filed February 20, 1990.

      Steinberg, Polacek & Goodman, of Chicago (Ira M. Kleinmuntz, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James R DeNardo, Gregory L. Cochran, and- Christine L. Olson, of counsel), for ap-pellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Constancia Lara appeals from the circuit court’s grant of summary judgment in favor of defendants Thoro-Matic Vacuum Systems, Inc. (Thoro-Matic), and Seaway Engineering Supply, Inc. (Seaway). The sole issue on this appeal is whether there were issues of fact which rendered the grant of summary judgment improper.

Plaintiff was injured when she fell after tripping over the cord of a vacuum cleaner she was using while working as a cleaning woman. On August 31, 1988, plaintiff filed an amended two-count complaint; count I was founded on strict liability and count II was based upon negligence. Both counts alleged that the vacuum cleaner was unreasonably dangerous in its design and manufacture in that it had inadequate guards, had an appurtenance which caught a portion of her body, had five rolling castered wheels, was not designed to require the top to be aligned in a safe fashion, had insufficient warnings and instructions, and was unstable.

The vacuum cleaner, model M — 150, was manufactured by Thoro-Matic and distributed by Seaway. Plaintiff’s deposition testimony reflected that she used this vacuum cleaner approximately three hours each day. On the day of her injury, she had used the vacuum cleaner, which had a bright orange cord, about IV2 hours prior to her fall. She had been cleaning in the lighted area where she fell for about 30 to 45 minutes.

Plaintiff was injured after she tripped over the cord of the vacuum cleaner when her left foot hit the cord. The vacuum cleaner was behind her, and when she turned to her left to clean, not looking to see where the cord was, her foot hit the cord. When she fell, she hit the hose she was using, and then struck the floor. The vacuum cleaner rolled toward her and struck her. As a result of the fall, plaintiff injured her left shoulder and wrist.

Stuart Acker, the president of Thoro-Matic, was deposed regarding the design and manufacture of the model M — 150. Acker testified that the cord on the vacuum cleaner was approximately 18 inches off the ground. Pursuant to a customer’s request, Thoro-Matic had manufactured some models of the M — 150 with five casters instead of four. The fifth caster was placed directly under the air intake hose. Customers requested the fifth caster to stabilize the machine and make it more mobile when it was pulled by the hose. No customer had complained that the M — 150 with four or five casters was unstable or tipped over. Exhibits showed that the vacuum cleaner plaintiff was using was incorrectly assembled by the customer or the user. Thoro-Matic designed the machine so that the lid would be closed in such a way that the air intake hose and the power cord would be 180 degrees from each other, but no means for requiring that alignment was provided. Exhibits showed that the lid in this vacuum cleaner had been closed so that the cord was approximately 90 degrees from the air intake hose.

Thoro-Matic denied the allegations in plaintiff’s complaint and filed a motion for summary judgment, which Seaway adopted. On December 19, 1988, after considering the written materials and hearing oral argument, the circuit court granted summary judgment on both counts in favor of Thoro-Matic and Seaway. Plaintiff timely appealed.

I

In maintaining that it was error for the circuit court to grant summary judgment, plaintiff asserts that the court did not afford her the benefit of conflicting inferences fairly drawn from the pleadings and depositions and that it failed to consider all the issues set forth in her amended complaint, the deposition testimony of Stuart Acker concerning the design of the product, and her testimony in a light most favorable to her. She contends that her injuries were proximately caused by a distinct defect of the product, namely, the unstable condition of the vacuum cleaner, and that whether a defective condition is an open or obvious defect is a question of fact for the jury’s determination.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Murphy v. Urso (1980), 83 Ill. App. 3d 779, 404 N.E.2d 287, aff’d in part & rev’d in part on other grounds (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) Summary judgment is appropriate only where the moving party is entitled to judgment as a matter of law. Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 325, 494 N.E.2d 830.

To state a cause of action in strict liability in tort, a plaintiff must plead and prove that the injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer’s control. (Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 437, 526 N.E.2d 607.) The fact that injuries may be sustained if a common and obvious propensity of a product is not guarded against in its use does not make it a dangerous product for purposes of strict tort liability. (Fanning v. LeMay (1967), 38 Ill. 2d 209, 212, 230 N.E.2d 182.) There is no requirement that common products be accident-proof, or that the manufacturer warn and protect against mishaps in their use. Fanning, 38 Ill. 2d at 212; Van Dettum v. K Mart Corp. (1985), 133 Ill. App. 3d 861, 863, 479 N.E.2d 1104.

A product is unreasonably dangerous when it fails to perform in the manner reasonably expected in light of its nature and intended function. (Kokoyachuk, 172 Ill. App. 3d at 437; Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 639, 340 N.E.2d 276.) Plaintiff must show that the injuries derive from a distinct defect in the product which subjects those exposed to the product to an unreasonable risk of harm; an injury itself is insufficient to prove the existence of a product defect. (Kokoyachuk v. Aeroquip Corp., 172 Ill. App. 3d at 437; Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 888, 501 N.E.2d 160.) Moreover, injuries are not compensable if they are caused by inherent propensities of a product which are obvious to all who come into contact with them. Kokoyachuk, 172 Ill. App. 3d at 437; Miller, 149 Ill. App. 3d at 888; see also Van Dettum, 133 Ill. App. 3d at 863-64.

Plaintiff admitted that she tripped over the cord of the vacuum cleaner, causing her to fall. In her deposition, she testified:

“Q. Do you know what made you fall?
A. The cord.
Q. Did you trip on the cord?
A. Well, when I turned around, I was cleaning on this side (indicating) and I was moving into the other side, and then there was another desk. The cord was a little bit raised, and when I turned around, it hit the ankle — .
Q. When your left foot hit the cord, did you trip?
A. When my left foot hit the cord, I was as if I were falling. And when I was about to fall down, then the machine hit me, turned over or something, and it hit me.
Q. Do you know if when your foot hit the cord that made the machine roll towards you?
A. Yes.
Q. The machine did move towards you?
A. Yes. When my foot hit the cord and I tripped, it made the machine roll towards me.
Q. And you fell with your left shoulder on top of the tube?
A. Tube, yes.
Q. Was there anything that you think caused you to fall other than your left foot hitting the cord?
A. No.
Q. Okay. When that part of your left foot struck the cord, did the vacuum cleaner roll or did it tip over?
A. It rolled a little bit, and then it rolled over.”

Plaintiff further acknowledged that she had no trouble seeing the bright orange cord.

This court is bound to take cognizance of and consider only those issues which are supported by the record. (Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040, 1044, 543 N.E.2d 1014.) While plaintiff is correct in her assertion that summary judgment should not be granted if documents on file show that there is a genuine issue as to material fact, there is no evidence in the record that shows that an unreasonably dangerous condition caused her injury. (See Shoemaker, 187 Ill. App. 3d at 1044.) Although in summary judgment proceedings the pleadings and depositions are to be construed in a light most favorable to plaintiff (see Stanfield v. Medalist Industries, Inc., 34 Ill. App. 3d 635, 638, 340 N.E.2d 276), allegations not supported by the evidence cannot be considered to create an issue of fact. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100, 479 N.E.2d 1211.

The only evidentiary materials in the record are the depositions of plaintiff and Acker. Based on plaintiff’s own description of the circumstances surrounding the fall, the circuit court properly concluded that no inference can be drawn from the record, including Acker’s deposition, that would allow a fact finder to find that the injuries sustained by plaintiff were caused because of the placement of the casters, the balance of the machine, or the alignment of the lid on the top of the vacuum cleaner. In fact, no evidence indicates that plaintiff’s injury was caused by any means other than by tripping over the vacuum cleaner cord. The tug of the cord combined with falling on the tube would cause a vacuum cleaner to topple regardless of the relationship of the tube and cord to each other. Moreover, the mandatory placement of the cord and tube at 180 degree angles to each other would not eliminate the type of accident that occurred here. The evidence here showed that plaintiff was injured due to her failure to guard against tripping over the cord, which is a common and obvious condition (see Fanning v. LeMay, 38 Ill. 2d at 212; Van Dettum, 138 Ill. App. 3d at 863), and an inherent property of an electric vacuum cleaner. (Kokoyaehuk, 172 Ill. App. 3d at 437; Miller, 149 Ill. App. 3d at 888; see also Van Dettum, 133 Ill. App. 3d at 863-64.) Therefore, since the vacuum cleaner was not unreasonably dangerous and since there was no genuine issue of material fact, summary judgment was correctly granted.

Steinhauer v. Arnie Bauer Cadillac Co. (1988), 172 Ill. App. 3d 314, 526 N.E.2d 577, a case relied upon by plaintiff in support of her argument that a question of fact exists in this case, is distinguishable from the case at bar. Steinhauer was based on premises liability, did not involve products liability, and the plaintiff was not deposed. In contrast to the facts in this case, there was no testimony that the plaintiff in that case knew of the existence of the ledge which caused her injury. Similarly, in Stanfield v. Medalist Industries, Inc. (34 Ill. App. 3d 635, 340 N.E.2d 276), and Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 360 N.E.2d 440, injuries to those plaintiffs were not caused by common and obvious conditions on the devices involved in those cases. They are inapposite to the instant matter. Here, plaintiff knew how to operate the machine and knew of the cord. The evidence, when viewed in a light most favorable to plaintiff, does not support a finding or an inference that the instability or design of the vacuum cleaner caused plaintiff’s injury.

II

Plaintiff additionally maintains that the court erred when it granted summary judgment in favor of defendants as to the negligence count of her amended complaint. She contends that sufficient evidence established a question of material fact that defendants breached a duty owed to plaintiff to design, fabricate, manufacture, and sell a vacuum cleaner that was not so unstable that the hitting of its electrical cord while vacuuming could cause the vacuum cleaner’s canister to tip over and roll into plaintiff.

The existence of a duty is a question of law properly decided on summary judgment because, absent a legal duty, there can be no recovery in negligence as a matter of law. (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 830, 502 N.E.2d 357.) In determining whether a duty exists, the court must consider the following factors: (1) whether the occurrence or accident was foreseeable; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury from occurring; and (4) the consequences of placing that burden upon the defendant. Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center, 187 Ill. App. 3d 1040, 1044, 543 N.E.2d 1014.

The third and fourth factors are not satisfied in this case. If clips were utilized to keep the cord on the floor, its placement might still cause a user or any passerby to trip. Placing the burden of guarding against injury on the manufacturer would necessitate the development of a vacuum cleaner whose cord would not result in trips and which would not roll when pulled or tugged. The circuit court properly granted summary judgment as to the negligence count because defendants owed no duty to plaintiff. Shoemaker, 187 Ill. App. 3d at 1044.

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

Affirmed.

HARTMAN and BILANDIC, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    WILLIAM HOPKINS, Plaintiff-Appellant, v. ROGER F. HOLT, Defendant-Appellee.—WILLIAM HOPKINS, Plaintiff-Appellee, v. JACKSON PARK HOSPITAL FOUNDATION et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—87—1900, 1—87—2025, 1—87—2069, 1—87—2078 cons.
    Opinion filed February 21, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago, for appellant Roland Lim.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago, for appellant Robert J. Sawchyn.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant Jackson Park Hospital Foundation.
    John J. Kakacek, of Stack & Filpi, Chartered, of Chicago, for Roger F. Holt.
    Paul B. Episcope, Ltd., of Chicago, for William Hopkins.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court;

Plaintiff, William Hopkins, brought a medical malpractice action against defendants, Jackson Park Hospital Foundation, Roger F. Holt, M.D., Ronald Lim, D.P.M., Mercy Hospital and Medical Center, and Robert J. Sawchyn, M.D. After the action was dismissed because of a settlement, plaintiff was informed that Dr. Holt’s insurer had declared bankruptcy. Plaintiff brought a declaratory judgment action against Dr. Holt in an effort to obtain the settlement amount from him personally, but summary judgment was granted in favor of Dr. Holt. Plaintiff then obtained a vacatur of the dismissal of the malpractice action. Defendants have appealed from the vacatur of the dismissal, and plaintiff has appealed from the granting of Dr. Holt’s motion for summary judgment.

Plaintiff alleged in his medical malpractice action that he had been a patient at Jackson Park Hospital, where Drs. Holt and Lim performed two surgeries on his foot. Subsequently plaintiff was treated at Mercy Hospital by Dr. Sawchyn. Mercy Hospital filed a motion for summary judgment which was granted. The action against the remaining defendants was settled for $101,000, and on February 21, 1985, it was dismissed with prejudice.

On May 14, 1985, plaintiff fíled a complaint for declaratory judgment seeking a judgment against Dr. Holt for $100,000 of the settlement. Plaintiff alleged that he agreed to accept in settlement $100,000 from Dr. Holt and $1,000 from Jackson Park. Plaintiff, Jackson Park, Dr. Holt, and Dr. Holt’s insurer, Bercanus Insurance Company (the insurer), were the parties to the written settlement agreement. In the settlement agreement in consideration of “the payment by the Insurance Carrier for and on behalf of Holt and Jackson Park Hospital to and on behalf of Hopkins,” it was agreed that an order dismissing the malpractice action would be obtained. The agreement further stated that upon execution, the insurer “for and on behalf of Holt” would deliver a check of $50,000 to plaintiff and to his attorney. Jackson Park on its own behalf would deliver a check for $1,000, and the insurer “for and on behalf of Holt” would deliver a check for $50,000 45 days after execution of the agreement.

The declaratory judgment complaint also alleged that on April 8, 1985, plaintiff was advised by James Murray, Dr. Holt’s counsel, that Dr. Holt’s insurer was in liquidation and that no settlement payment would be made. Dr. Holt denied in his third amended answer that he personally offered plaintiff $100,000 in settlement. Dr. Holt alleged that on January 24, 1985, Murray informed plaintiff’s attorney that the insurer would tender its policy limits of $100,000 to plaintiff in return for a release of all claims against Dr. Holt. He also alleged that the parties and their attorneys intended that plaintiff would be paid the $100,000 only by the insurer and that Dr. Holt would not contribute any of his personal funds to the settlement.

Plaintiff moved for summary judgment in the declaratory judgment action. Plaintiff’s attorney stated in his supporting affidavit that he was not informed of any limitation or restriction on Murray’s authority to negotiate a settlement for Dr. Holt. Dr. Holt swore in his affidavit in opposition that he did not expect, intend or knowingly agree to pay any portion of the settlement. He expected and intended that only the insurer would be responsible for the settlement. He would not have settled if he had known that he could have been responsible for paying any portion of the settlement.

Plaintiff’s motion for summary judgment was denied, apparently at the hearing on November 13, 1986, although the order was entered on November 21, 1986, and on December 8, 1986, Dr. Holt filed his motion for summary judgment and argued that an attorney could not bind a client to a settlement agreement unless the client knew of and specifically agreed to the terms of the settlement. Dr. Holt argued that he never authorized Murray to bind him to pay the settlement amount but specifically directed him to settle the matter on terms providing that he was not to be bound to pay the settlement amount. Dr. Holt’s motion was granted on May 22, 1987, and plaintiff appeals from that order.

Plaintiff filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) to vacate the order of February 21, 1985, dismissing the malpractice action. The petition in the record does not show the date of filing, but the parties apparently agree that it was filed November 19, 1986, which was six days after the denial of plaintiff’s motion for summary judgment in the declaratory judgment action. Plaintiff alleged that he had not received any of the settlement funds and argued that, therefore, there was no consideration for the dismissal order. Plaintiff's attorney’s supporting affidavit stated that after 30 days from the dismissal, plaintiff’s attorney was advised for the first time that the insurer was in liquidation and that the settlement funds would not be paid. Jackson Park alleged in its response to the petition that it drew a $1,000 check payable to plaintiff and his attorney and mailed it. On May 22, 1987, plaintiff’s petition to vacate the order of dismissal was granted and the case was reinstated as to all parties.

Plaintiff appeals from the entry of summary judgment in favor of Dr. Holt in the declaratory judgment action. He argues that: (1) the settlement agreement was valid and Dr. Holt should be bound by it; (2) Murray had the authority to settle the malpractice action as Dr. Holt’s agent and no limitation on his authority was communicated to plaintiff; and (3) no mutual mistake of fact existed upon which the settlement agreement could be reformed.

The plaintiff relies on Hill v. Chicago Housing Authority (1974), 17 Ill. App. 3d 65, 308 N.E.2d 45, to support his argument that an attorney of record for a defendant can enter into a settlement and dismissal of a case that binds the client to pay the amount of the settlement even though the client never gave prior approval and the insurer became insolvent. The Chicago Housing Authority in that case argued that the settlement was not binding because it never authorized settlement or subsequently ratified it and that a subsequent “change in circumstances” (the insurer’s insolvency) required that the settlement be set aside. The Chicago Housing Authority from the beginning, however, did not say anything to its attorney and allowed the attorney a free hand to handle and settle the case any way the attorney saw fit. In the instant case, Dr. Holt hired a private attorney to protect him. His private attorney notified his attorney of record to settle only on the condition that Dr. Holt would not be personally liable. The holding in Hill therefore would not be binding in this case.

Plaintiff alleged that Dr. Holt’s attorney of record, Murray, had apparent authority to bind Holt personally to pay the settlement. Where attorneys negotiate settlements containing terms their clients did not approve, Illinois courts hold that the clients are not bound by those terms. In the case of City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 292 N.E.2d 154, the defendant never agreed to a term in the oral settlement which required it to discontinue its business. The court held:

“In the case at bar, we believe that the discretion of the court [to refuse to vacate the decree] was substantially limited by the established rule of law that an attorney employed to defend a suit has no authority to compromise, to give up any right of his client, or to consent to judgment against his client without the express consent or authorization of that client.” Des Plaines, 9 Ill. App. 3d at 444.

In the instant case, Murray, the attorney of record, had no authority to bind Dr. Holt personally to pay the settlement amount of $100,000. The entry of summary judgment in favor of Dr. Holt was proper.

In addition, the settlement agreement clearly stated that the action would be dismissed in exchange for the payment by the insurer. It did not provide that Dr. Holt personally was to pay the settlement and did not make him a guarantor of the insurer’s promise to pay. Plaintiff agreed to release his claims in exchange for $100,000 from the insurer and $1,000 from Jackson Park.

Drs. Lim and Sawchyn argue that plaintiff failed to act with due diligence in the malpractice action because he did not vigorously pursue claims against them, because he did not attempt to settle with them, because they were not parties to the settlement agreement, and because there was no inquiry by him regarding the insurer’s financial security prior to the settlement.

All defendants argue that plaintiff lacked due diligence in filing his section 2 — 1401 petition because he chose to enforce the settlement agreement in the declaratory judgment action and did not file the section 2 — 1401 petition until about 18 months after the dismissal. Drs. Lim and Sawchyn argue that a section 2 — 1401 petition may be granted even where there was a lack of due diligence but that equitable and policy considerations demanded denial of plaintiffs petition.

Section 2 — 1401 provides relief from final orders and judgments after 30 days from their entry. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401.) Due diligence must be demonstrated in presenting the defense or claim in the original action and in filing the petition. Lazzara v. Dreyer Medical Clinic (1983), 120 Ill. App. 3d 721, 724, 458 N.E.2d 958.

Plaintiff acted with due diligence in pursuing his malpractice action. Drs. Lim and Sawchyn attempt to impose a new requirement of vigorous pursuit of claims or settlement with all defendants. Plaintiff was permitted to attempt to settle with fewer than all defendants, and no defendant objected when the settlement agreement was made. Plaintiff also was not bound to inquire about the insurer’s financial condition prior to dismissing his action. Dr. Roland Lim and Dr. Robert Sawchyn benefited when they were dismissed from the case without payment of any money. When the dismissal was vacated pursuant to section 2 — 1401, these defendants were not prejudiced thereby. Even if they had paid $1,000 in settlement as Jackson Park did, they would not have been prejudiced by the vacating of the dismissal.

In addition, Dr. Holt argues that plaintiff should have prayed in the declaratory judgment action in the alternative for a vacatur of the dismissal. Jackson Park argues that plaintiff failed to diligently pursue relief from the dismissal because the declaratory judgment action was not a pursuit of plaintiff’s contract rights against Jackson Park.

Plaintiff’s counsel swore in an affidavit in the declaratory action that he was advised of the bankruptcy after the expiration of 30 days from the dismissal of the malpractice action. Even assuming arguendo that an action’s dismissal could be vacated in a separate declaratory judgment action, plaintiff could not have obtained such relief. A section 2 — 1401 petition is the only method of relief from a final and appealable order after 30 days, as the trial court loses jurisdiction after 30 days (Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 166, 415 N.E.2d 1060), and the petition must be filed in the same proceeding in which the order was entered (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b)).

Plaintiff exercised due diligence in filing this section 2 — 1401 petition only a few days after the entry of summary judgment in favor of Dr. Holt in the declaratory judgment action. There was no reason for plaintiff to vacate the dismissal earlier against Jackson Park, which paid its portion of the settlement, because it was not until the entry of summary judgment that it was determined that the settlement agreement could not be enforced against Dr. Holt.

The facts which must be alleged in a section 2 — 1401 petition are not those which form the basis for the original action but those which allegedly entitle petitioner to the relief. (See Windmon v. Banks (1975), 31 Ill. App. 3d 870, 873-74, 335 N.E.2d 116 (interpreting section 72 (now section 2 — 1401)).) Therefore plaintiffs petition was not deficient, as Drs. Lim and Sawchyn argue, for failing to allege that he had a meritorious claim against them. A plaintiff’s section 2 — 1401 petition to vacate dismissal need not reiterate the contentions contained in the complaint. (See Windmon, 31 Ill. App. 3d at 874.) Furthermore, plaintiff’s petition sufficiently alleged the facts surrounding the breach of the settlement agreement which allegedly entitled him to relief.

Drs. Lim and Sawchyn argue that the post-dismissal event of the insurer’s bankruptcy was an impermissible basis for section 2 — 1401 relief and that plaintiff’s petition failed to allege or prove that he had either a meritorious claim against them or that the insurer’s bankruptcy permitted plaintiff to vacate the dismissal. Jackson Park Hospital argues that the section 2 — 1401 petition should have been denied because plaintiff did not show fraud or mistake.

There is disagreement as to whether a section 2 — 1401 petition can be based on events that occurred subsequently to the judgment. (Prairie Material Sales, Inc. v. White Diamond, Inc. (1987), 157 Ill. App. 3d 779, 783, 510 N.E.2d 1236.) Some courts have held that a section 2 — 1401 petition must present new facts that relate to matters which antedate the judgment and not those arising after judgment. Chovan v. Floor Covering Associates, Inc. (1987), 159 Ill. App. 3d 447, 450, 512 N.E.2d 801; Mohr v. Pridemore (1986), 151 Ill. App. 3d 341, 344, 502 N.E.2d 754; Gimroth v. Ray (1981), 98 Ill. App. 3d 633, 635, 424 N.E.2d 934; Union National Bank & Trust Co. v. Green (1979), 80 Ill. App. 3d 32, 34, 399 N.E.2d 313; Prendergast v. Rush-Presbyterian-St. Luke’s Medical Center (1979), 78 Ill. App. 3d 538, 542, 397 N.E.2d 432; County Board of School Trustees v. Association of Franciscan Fathers (1977), 49 Ill. App. 3d 686, 701-02, 364 N.E.2d 691 (assuming arguendo the Russell rule); Goggin v. Fox Valley Con struction Corp. (1977), 48 Ill. App. 3d 103, 106-07, 365 N.E.2d 509.

These cases rely directly or indirectly upon Russell v. Klein (1974), 58 Ill. 2d 220, 225, 317 N.E.2d 556. Defendants in Russell had obtained section 72 (now section 2 — 1401) relief from a judgment by confession on the basis that the judgment had been satisfied. The court stated that section 72 was available for relief based on matters which antedated the rendition of the judgment and not those which arose subsequently. (Russell, 58 Ill. 2d at 223-24.) The court held that section 72 was not the only remedy for relief from a judgment on grounds of discharge, payment or satisfaction. Russell, 58 Ill. 2d at 225.

In Saeed v. Bank of Ravenswood (1981), 101 Ill. App. 3d 20, 427 N.E.2d 858, defendants challenged a section 72 petition to vacate a dismissal order entered for plaintiffs failure to comply with discovery requests because it relied upon a fact which occurred after the entry of judgment, i.e., plaintiffs subsequent return to the country. The court held that the Russell statement that section 72 relief based on subsequent matters was unavailable had been taken out of context and only meant that the common law writ was encompassed by section 72 to the extent that the relief sought pertained to matters in existence before the judgment so that the two-year limitation did not apply to matters arising subsequently to judgment. (Saeed, 101 Ill. App. 3d at 26.) The court also stated that some courts had considered facts occurring subsequent to judgment, such as plaintiff’s concealment of the entry of judgment or delay in executing on a default judgment. (Saeed, 101 Ill. App. 3d at 26.) The court found that the case involved an aspect of the scope of statutory relief different from Russell and concluded that section 72 was flexible enough for plaintiff to vacate the dismissal.

In further support of an interpretation of section 2 — 1401 permitting vacatur of a dismissal based upon the breach of the settlement agreement is the rule that such a breach permits the nondefaulting party to elect either to sue to enforce the settlement agreement or to treat the agreement as rescinded and to sue upon the original debt. (See, e.g., Zager v. Gubernick (1965), 205 Pa. Super. 168, 173-74, 208 A.2d 45, 49; Shield Co. v. Williamson (Texas 1962), 355 S.W.2d 811, 813; Wilson v. Bogert (1959), 81 Idaho 535, 543, 347 P.2d 341, 346; Whitfield v. Whittington (1953), 34 Del. Ch. 34, 99 A.2d 196, 197; and other cases cited in 15A C.J.S. Compromise & Settlement §46, at 275 n.89 (1967).) The action that was dismissed because of the settlement agreement may be reinstated (Pacheco v. Delgardo (1935), 46 Ariz. 401, 407, 52 P.2d 479, 481) if the breach of the settlement agreement was material (Kapco Manufacturing Co. v. C & O Enterprises, Inc. (N.D. Ill. 1985), 605 F. Supp. 253, 256). See also Mederacke v. Becker (1970), 129 Ill. App. 2d 434, 438-39; 263 N.E.2d 257 (although party-deviated from time schedule for payment, there was virtually full compliance with settlement agreement providing for partial payment of judgment in full satisfaction of liability so that reinstatement of original judgment was not warranted).

We hold that section 2 — 1401 may be used to vacate a dismissal that was entered in consideration of a promise to pay a settlement when the promise was materially breached. We further hold that plaintiff was diligent in pursuing to vacate the dismissal as to all parties.

The proper procedure to enforce a settlement agreement when the party refuses to pay is to file an action which is essentially an action for breach of contract. (Brigando v. Republic Steel Corp. (1989), 180 Ill. App. 3d 1016, 1021 n.1, 536 N.E.2d 778, 782 n.l.) Plaintiff’s declaratory action was an attempt to enforce the settlement agreement, but the issue whether the doctrine of election of remedies prevented plaintiff from afterwards moving to vacate the dismissal arises. The doctrine is inapplicable where no threat of double recovery exists, defendant is not misled and has not changed his position in reliance on plaintiffs conduct, and there is nothing about the action that would serve to bar the instant remedy because of res judicata. (Casati v. Aero Marine Management Co. (1980), 90 Ill. App. 3d 530, 536-37, 413 N.E.2d 122.) By attempting to enforce the settlement agreement against a party who was not liable for the owed settlement amount, plaintiff did not make an election that prevented him from treating the settlement agreement as rescinded and from moving to vacate the dismissal. See Casati, 90 Ill. App. 3d at 537 (prior unsuccessful action for breach of contract did not bar subsequent action under theory of anticipatory breach).

The judgment of the circuit court is affirmed.

FREEMAN and WHITE, JJ., concur.