author: JUSTICE WOMBACHER

text:
    MARY E. GIBSON, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—89—0150
    Opinion filed January 4,1990.

      Michael J. Warner, of Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellant.
    Robert T. Park, of Rock Island, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiff, Mary E. Gibson, brought suit for a declaratory judgment against the defendant, Country Mutual Insurance Company (Country Mutual). The plaintiff appeals from the summary judgment entered in favor of Country Mutual. We affirm.

On November 20, 1984, the plaintiff was seriously injured in an automobile collision. On that date an automobile insurance policy issued to the plaintiff by Country Mutual was in force. That policy contained several coverages, one of which provided for medical payments to the plaintiff in the event she incurred medical expenses as a result of a motor vehicle accident, up to a maximum of $25,000. The policy also contained provisions that, at least on their face, allowed Country Mutual to recoup medical payments out of any damages the plaintiff obtained, or had the right to obtain, from any third party. The effect of these latter provisions is the subject of this lawsuit. They state as follows:

“8. Our Right to Recover Payment (Subrogation)
a. If we make a payment under this policy, other than Death Benefit, Coverage C-l, and the person to or for whom payment was made has a right to recover damages, we will be subrogated to that right (have that right transferred to us). That person must do whatever is necessary to enable us to exercise our rights and must do nothing after the loss to prejudice our rights.
b. If we make a payment under this policy, other than Death Benefits, Coverage C-l, and the person to or for whom payment was made recovers damages from another, that person must hold the proceeds of the recovery in trust for us and must reimburse us to the extent of our payment.” (Emphasis in original.)

The plaintiff’s medical expenses exceeded $25,000, and her other damages exceeded $100,000. Country Mutual paid the plaintiff its policy limit for medical payments, $25,000. Later, the plaintiff entered into settlement negotiations with the driver of the other vehicle involved in the collision. The plaintiff agreed to settle her claim against that driver for his liability insurance limit, $100,000. It happened that Country Mutual insured both the plaintiff and the driver of the other vehicle. Country Mutual offered to pay the plaintiff $75,000, representing the other driver’s policy limit less the medical payments Country Mutual had previously paid to the plaintiff. The plaintiff refused this offer, contending that she was due $100,000, and subsequently instituted this declaratory judgment action. On Country Mutual’s motion for summary judgment, the trial judge determined that Country Mutual was entitled to recover the medical payments from any settlement between the plaintiff and the driver of the other vehicle. The plaintiff appeals from that judgment.

Summary judgment shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In this case the facts are undisputed. Our inquiry focuses on whether Country Mutual is entitled to judgment as a matter of law.

The first issue raised by the plaintiff is whether the provisions providing for subrogation and reimbursement are ambiguous, particularly as to the meaning of the word “damages” found therein. If indeed" the provisions are ambiguous, such that they can have more than one reasonable meaning, then they will be construed against their drafter, Country Mutual, and in favor of the insured, the plaintiff. (See Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1986), 113 Ill. 2d 327, 331, 497 N.E.2d 1170,1172; Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539, 541.) However, if they have only one reasonable meaning, they will be enforced unless they are void for violating a valid statute or regulation, or for otherwise violating public policy. See Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539, 541.

The plaintiff argues, in essence, that many different kinds of damages can arise as a result of a motor vehicle accident, and that it would be unjust, at least in certain situations, for an insurance company to be able to recover medical payments from damages which were not compensation for medical expenses. For instance, if the present case had gone to trial and the plaintiff were only able to prove that she suffered $30,000 in medical expenses and $20,000 in lost wages, but the jury found her 50% at fault, and so her award amounted to $25,000, the plaintiff argues that it would be unjust for Country Mutual to recover its $25,000 in medical payments out of this award. From this plaintiff concludes that it is ambiguous whether “damages” means damages of any type, or only damages of the same type as the benefits previously paid, in this case medical expenses.

The plaintiff correctly notes that provisions of insurance policies which seem clear on their face may contain latent ambiguities when applied to the facts of a specific case, and for that reason are not to be construed in a factual vacuum. (See Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250.) However, in this case we find neither a patent ambiguity nor a latent one. Country Mutual made “a payment under this policy, other than [a] Death Benefit,” viz. the medical payments, and the plaintiff apparently has a “right to recover damages” from someone as a result of the automobile accident which necessitated the medical payments. We see no absurdity or injustice resulting from a literal application of the policy provisions such as would suggest a latent ambiguity in this case. We decline to decide whether in other factual situations a latent ambiguity might arise as to the meaning of the provisions at issue. It is enough at this juncture that they are clear as to their meaning both on paper and as applied to the facts of this case.

The plaintiff next argues that if the policy provisions at issue are deemed unambiguous, then their application violates public policy where, as here, such application serves not to prevent double recovery of benefits, but only to reduce already inadequate benefits. In support of this proposition, the plaintiff cites several cases holding that an insurer may not offset benefits paid under uninsured motorist coverage by benefits paid under other coverages, such as medical payments coverage, unless necessary to prevent double recovery of benefits. (See Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247 (different coverages part of same policy; failed to discuss whether holding based on ambiguity or public policy); Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 366 N.E.2d 901 (different coverages in policies issued to different persons, but insured was covered under both policies); Melson v. Illinois National Insurance Co. (1971), 1 Ill. App. 3d 1025, 274 N.E.2d 664 (different coverages part of same policy; holding based on interpretation of provisions of insurance policy); but see Katz v. American Family Insurance Co. (1987), 163 Ill. App. 3d 549, 516 N.E.2d 795 (different coverages in policies issued to different persons, but insured was covered under both policies; considered only policy language, and not public policy).) The cases on which the plaintiff relies based their decisions expressly or, by virtue of reliance on other cases, implicitly on the public policy embodied in the statute setting minimum amounts of uninsured motorist coverage for automobile insurance policies in Illinois. (Ill. Rev. Stat. 1987, ch. 73, par. 755a.) Since this case does not involve uninsured motorist coverage, we believe the cases dealing with uninsured motorist coverage are distinguishable.

We note that in the recent cases of Becker v. Country Mutual Insurance Co. (1987), 158 Ill. App. 3d 63, 510 N.E.2d 1316, and Adolphson v. Country Mutual Insurance Co. (1989), 187 Ill. App. 3d 718, 543 N.E.2d 965, cases which did not involve uninsured motorist coverage, the court found significant the fact that the insured was not in danger of receiving less than the minimum liability insurance coverage mandated by statute, even after allowing for credits claimed by the insurer. The plaintiff has not been placed in the position of receiving less than the minimum liability insurance coverage mandated by statute ($15,000 in 1984 (Ill. Rev. Stat. 1983, ch. 95V2, par. 7 — 317)) as a result of Country Mutual’s recovery of the medical payments from the liability settlement. We shall not entertain arguments here that under different circumstances the statutory minimums might not be met as a result of application of crediting provisions.

Finally, the plaintiff argues that permitting Country Mutual to recover the medical benefits it paid deprives the plaintiff of benefits she paid for as part of her insurance premium. The answer to this contention is that she paid for the coverages stated in the policy, subject to the conditions stated in the policy. Benefits here are payable subject to any number of contingencies, such as types of loss, extent of losses, whether the insured is at fault, whether third parties at fault have insurance, and what limits third parties have on their liability coverages. In retrospect, the medical payments by Country Mutual only amounted to a loan. However, had circumstances been different, such as, for example, if the accident had been the plaintiffs fault, she would have been able to keep the medical payments. The benefit here is that the insured is guaranteed payment for medical expenses arising from a motor vehicle accident, up to a stated limit, regardless of fault. This is a valuable benefit despite the fact that in certain cases it does not serve to increase an insured’s net recovery over what that recovery would have been in its absence. This is not a case where benefits are illusory.

In summary, the policy provisions allowing Country Mutual to recover its medical payments from damages the plaintiff receives from one who was at fault in the motor vehicle accident are unambiguous as applied to the facts of this case, and do not offend public policy, at least not for any of the reasons the plaintiff has proposed. Accordingly, the summary judgment in favor of Country Mutual is affirmed.

Affirmed.

HEIPLE, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    CITIZENS UTILITIES COMPANY OF ILLINOIS, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3—89—0203
    Opinion filed January 5,1990.
    Rehearing denied February 13,1990.
    Chapman & Cutler, of Chicago (Daniel J. Kucera, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia E. Collins, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of counsel), for respondents.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, Citizens Utilities Company of Illinois (Citizens), appeals from an order issued by appellee Illinois Pollution Control Board (the Board). The Board upheld a permit condition contained in a National Pollutant Discharge Elimination System (NPDES) permit issued by appellee Illinois Environmental Protection Agency (the Agency). Since we conclude that the cause must be remanded for further proceedings, only those necessary facts will be set forth.

Citizens’ operations include water and sanitary sewer service to portions of the Village of Bolingbrook. This appeal concerns Citizens’ facility known as West Suburban Wastewater Treatment Plant No. 2 (WSB Plant No. 2) located in Bolingbrook. The record shows that the Agency originally issued a NPDES permit for WSB Plant No. 2 on June 30, 1975. On April 17, 1985, the Agency sent Citizens a proposed draft of a renewal NPDES permit for WSB Plant No. 2. The proposed permit contained, among other things, a daily maximum effluent limitation for ammonia nitrogen of 1.5 milligrams per liter (mg/1) from April through October and 4.0 mg/1 for November through March. Effluent is the material discharged from a facility into a waterway. The effluent limitations for ammonia nitrogen were to apply only when the downstream daily maximum ammonia nitrogen concentration did not meet the water quality standards set forth in section 302.212 of the Illinois Administrative Code (35 Ill. Adm. Code §302.212 (1985)).

Citizens challenged, among other things, the permit condition limiting the concentration of ammonia nitrogen discharged from its facility. Citizens was allowed to submit written comments on the permit condition. On June 19, 1985, the Agency submitted a revised draft permit, which contained some revisions. However, the ammonia nitrogen limitations remained the same. The record shows that the Agency denied both of Citizens’ requests for a public hearing on the draft permit. On August 22, 1985, the Agency issued to Citizens a final NPDES permit effective September 25, 1985. The permit contained the effluent limitations for ammonia nitrogen as set forth in the proposed draft.

On September 13, 1985, Citizens filed a petition for review with the Illinois Pollution Control Board. Citizens objected, inter alia, to the effluent limitations for ammonia nitrogen contained in the NPDES permit. Citizens objected to the condition, arguing that the permit condition was not necessary to accomplish the purposes of the Act and that the condition was unreasonable. Citizens requested that the Board review the condition and order the Agency to modify the permit by deleting the effluent limitations for ammonia nitrogen. On November 2, 1987, opening arguments were presented at a hearing before a hearing officer. The hearing was continued to December 4, 1987. At that hearing, Citizens presented the testimony of engineer William Brink, a project manager for Citizens. The Agency objected to the admission of Brink’s report on the effluent limitation for ammonia nitrogen. The hearing officer reserved ruling on the admissibility of the report. The Agency offered as witnesses Rickard Lucas and Lalit Sinha.

On January 5, 1989, the Board issued an opinion and order finding that based on the record, the condition was properly imposed by the Agency and could be enforced against Citizens. In its opinion, the Board stated that it “reviews the permit condition by considering the record complied by the Agency. The Board reviews the evidence in the record without deference to the Agency’s decision.” As such it considered the study submitted by Brink, because the study did not contain material outside the record, but instead represented “a reformulation of the information from the record together with information that was generally available to the agency.”

On February 2, 1989, Citizens filed a motion for rehearing with the Board. Among other things, Citizens requested that the Board consider as evidence portions of the record in a rulemaking case pending before the Board. The case apparently involved partial relief during the winter months from water quality standards for ammonia nitrogen. Citizens contended that evidence presented in the rulemaking case tended to refute some of the assertions made by the Agency and accepted by the Board in upholding the permit condition. The Board denied Citizens’ motion and stated, inter alia: “The scope of the Board’s review is limited to the record as it existed before the Agency at the time of the Agency’s permit decision. The Board does not consider information submitted after the permit application is denied.”

On appeal, Citizens contends that the Board erred in holding the scope of its review was limited to the record before the Agency at the time the NPDES permit was issued.

Section 40(a)(1) of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. IllVz, par. 1040(a)(1)) states in pertinent part: “If the Agency refuses to grant or grants with conditions a permit under Section 39 of this Act, the applicant may, within 35 days, petition for a hearing before the Board to contest the decision of the Agency. *** At such hearing the rules prescribed in Sections 32 and 33(a) of this Act shall apply, and the burden of proof shall be on the petitioner.” Sections 32 and 33(a), respectively, provide in pertinent part: “All hearings under this Title shall be held before a qualified hearing officer ***. All such hearings shall be open to the public, and any person may submit written statements to the Board in connection with the subject thereof. In addition, the Board may permit any person to offer oral testimony. Any party to a hearing under this subsection may be represented by counsel, may make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of such actions. *** The transcript so recorded, and any additional matter accepted for the record, shall be open to public inspection ***.” And, “After due consideration of the written and oral statements, the testimony and arguments that shall be submitted at the hearing, ***, the Board shall issue and enter such final order, or make such final determination, as it shall deem appropriate under the circumstances.” Ill. Rev. Stat. 1987, ch. IIIV2, pars. 1032,1033(a).

Section 105.102(b) of the Illinois Administrative Code (35 Ill. Adm. Code §105.102(b) (1985)) sets forth procedural rules governing NPDES appeals. The rules apply to cases in which the Agency denies a NPDES permit or issues a permit containing conditions or limitations to which the applicant objects. (35 Ill. Adm. Code §105.102(b)(2) (1985)) Section 105.102(b)(8) states: “The hearing before the Board shall extend to all questions of law and fact presented by the entire record. The Agency’s findings and conclusions on questions of fact shall be prima facia true and correct. If the Agency’s conclusions of fact are disputed by the party or if issues of fact are raised in the review proceeding, the Board may make its own determination of fact based on the record. If any party desires to introduce evidence before the Board with respect to any disputed issue of fact, the Board shall conduct a de novo hearing and receive evidence with respect to such issue of fact.” 35 Ill. Adm. Code §105.102 (b)(8) (1985).

In Dean Foods Co. v. Illinois Pollution Control Board (1986), 143 Ill. App. 3d 322, 492 N.E.2d 1344, the second district held that the Board erred when it excluded from evidence new material that Dean Foods attempted to present at a hearing involving a NPDES permit condition. As in the instant case, the Board argued in Dean Foods that its review of the permit condition was limited to the facts before the Agency at the time the permit was issued. The Board interpreted the section 105.102(b)(8) de novo review provision as referring only to the manner in which the Board reviews the Agency’s decision, and that it did not allow the Board to consider evidence that was not part of the record before the Agency. The court found that the Board appeared to be ignoring the plain meaning of the de novo rule set forth in its own regulations. It was noted that section 105.102(b)(8) expressly states that when a party wishes to introduce evidence before the Board on a disputed issue of fact, the Board is to conduct a de novo hearing and receive the evidence.

In the instant case, the Board contends Dean Foods was incorrectly decided and in support of its argument cites dictum, in Alton Packaging Corp. v. Pollution Control Board (1987), 162 Ill. App. 3d 731, 516 N.E.2d 343. We note that Alton involved appeal from the denial of an operating permit regulating air pollution. Therefore, the procedural requirements in section 105.102(b) of the Administrative Code governing NPDES permit appeals would not have applied to that case.

We find Dean Foods dispositive on the issue presented. In the instant case, we note that the Agency twice denied Citizens request for a hearing on the proposed NPDES permit. Under the Act, there is no requirement that the Agency conduct a hearing before issuing a NPDES permit. (See Ill. Rev. Stat. 1987, ch. IIIV2, par. 1039(b).) Thus there is nothing resembling a hearing where adversaries submit proofs to a neutral and detached decision maker prior to the Agency’s decision. (Environmental Protection Agency v. Pollution Control Board (1985), 138 Ill. App. 3d 550, 486 N.E.2d 293, aff’d (1986), 115 Ill. 2d 65, 503 N.E.2d 343.) The record shows that Citizens was allowed to comment on the proposed permit condition, but no hearing was held prior to the final permit being issued by the Agency.

In both the January 5, 1989, order and the denial of Citizens petition for a rehearing, the Board stated that its review of the facts was limited to the record before the Agency at the time it issued the permit. This is contrary to the procedural rules governing NPDES permit appeals as set forth in the Administrative Code. Under section 105.102(bX8), a party may submit evidence to the Board regarding a disputed issue of fact. We note that the Act requires the Board to conduct a hearing at which interested parties may testify, cross-examine witnesses and submit written statements. The Act contemplates that the Board will take more than a “live” review of the record before the Agency. The Board’s own rules allow for the admittance of new evidence. It appears that in the instant case the Board misconstrued the scope of its review of the NPDES permit condition. Therefore the cause must be remanded for a hearing consistent with requirements of the Act and section 105.102(b) of the Administrative Code.

The order of the Illinois Pollution Control Board is vacated and the cause remanded for further proceedings consistent with this opinion.

Order vacated and remanded.

SCOTT and BARRY, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS JOE STONEKING, Defendant-Appellant.
    Third District
    No. 3—89—0153
    Opinion filed January 10,1990.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Dennis Joe Stoneking, pleaded guilty to burglary and first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1(a), 9 — 1(a)(2)). The trial court imposed a sentence of natural life imprisonment on the murder count and a concurrent seven-year sentence on the burglary count. The court later denied the defendant’s motion to withdraw his guilty plea. The defendant appeals.

The record shows that at the guilty plea hearing the trial court informed the defendant of the charges against him. The court also informed him that if he pleaded guilty to the murder charge, he could receive either a sentence of natural life imprisonment, a determinate sentence of 20 to 60 years, or an extended-term sentence of 60 to 100 years. The court did not tell the defendant that if he received a natural life sentence he could not be paroled (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—-3(d)). After further admonishments and inquiries from the court, the defendant pleaded guilty to first degree murder and burglary.

At the sentencing hearing, the trial court found the following aggravating factors to be present: (1) the defendant inflicted serious injury by causing a person’s death; (2) the defendant had a history of prior delinquency and criminal activity; and (3) the sentence was necessary to deter others from committing the same crime. The court then imposed sentence.

The defendant later filed a motion to withdraw his guilty plea. He alleged that he had not understood, nor had the court informed him, that a person sentenced to natural life could not be paroled. At the hearing on the motion, the trial court acknowledged that it had not informed the defendant of this. However, the court believed that the defendant understood that the term “natural life” meant imprisonment for life without parole. Accordingly, it denied the motion.

On appeal, the defendant contends that the court erred in denying his motion to withdraw his guilty plea. He reiterates his argument that the court should have informed him that a person sentenced to natural life could not be paroled.

In order for a guilty plea to be accepted, it must be knowingly and voluntarily made. (People v. Stewart (1984), 101 Ill. 2d 470, 463 N.E.2d 677.) Supreme Court Rule 402 (107 Ill. 2d R. 402) requires that the defendant be informed of the maximum penalty he faces by pleading guilty. (People v. Gasper (1988), 167 Ill. App. 3d 218, 521 N.E.2d 170.) The decision to vacate a guilty plea is within the trial court’s sound discretion. People v. Hale (1980), 82 Ill. 2d 172, 411 N.E.2d 867.

It is uncontroverted that the instant trial court failed to inform the defendant that if he was sentenced to natural life he could not be paroled. Further, despite the trial court’s belief, the record fails to disclose whether or not the defendant understood that a sentence of natural life imprisonment precluded parole. The defendant’s state of knowledge or information on this point is wholly speculative.

For many years in Illinois, a life sentence was parolable. For the past several years it has not been parolable. It seems but a small matter for a trial court to admonish a defendant who is exposing himself to a life sentence that, unlike other sentences, that particular sentence precludes parole. It is a major matter to an unknowing defendant, however, if he enters a guilty plea not knowing the full implications of such a sentence. It is possible that the defendant knew this. The trial judge believes that he did. The record, however, does not add any enlightenment on the fact. We believe that the better practice is to tell the defendant. Where, as here, he was not told and claims he did not know, we believe that simple justice requires he be given the opportunity to plead anew.

The defendant also argues on appeal that the trial court erred in considering as an aggravating factor that his conduct caused serious injury because that fact is implicit in every murder. Although we have already determined that the defendant must be allowed to withdraw his guilty plea, we shall address this issue because it may occur again on remand.

The fact that the defendant caused serious injury, standing alone, should not have been relied upon as an aggravating factor, because serious injury is implicit in every murder. (See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) However, the court could properly consider the degree of harm caused by the defendant and the gravity of his conduct. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.

In the instant case, the trial court noted, without elaboration, that the defendant’s conduct caused serious injury. Certainly, serious injury is implicit in any death wound. From the language of the trial court, we cannot determine whether the court was considering the degree of harm or the gravity of the defendant’s conduct when it found this factor to be present.

The judgment of the circuit court of Knox County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SCOTT and WOMBACHER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. BLAINE H. KLOKE, Petitioner-Appellee.
    Third District
    No. 3—89—0371
    Opinion filed January 10, 1990.
    Marc Bernabei, State’s Attorney, of Princeton (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    David M. Kaleel, of Mendota, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The petitioner, Blaine H. Kloke, filed a petition to rescind the statutory summary suspension of his driver’s license (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1). The trial court granted the petition. The State appeals.

At the hearing on the petition to rescind, police officer Michael Miroux testified that on May 14, 1989, at 2:12 a.m., he noticed a car in the Green River Country Club parking lot. After he walked up to investigate, he saw the petitioner sleeping behind the wheel of the car. He woke the petitioner by knocking on the window. The petitioner said that he had been in Normandy, Illinois, earlier, and that he had been parked in the country club parking lot for about half an hour. He did not say whether he had driven the car there. Miroux stated that the only access to the parking lot was Route 92, which ran to Normandy.

Officer Miroux further testified that after asking the petitioner to exit the car, he searched the vehicle and found the car keys on top of the sun visor. He then gave the petitioner the standard motorist’s warning (Ill. Rev. Stat. 1987, ch. 951k, par. 11 — 501.1(c)). The traffic citation indicated that the petitioner agreed to take a breathalyzer test and registered a .17 breath-alcohol content.

Donald Parks testified that he and the petitioner had planned on golfing at the Green River Country Club at 7 a.m. on the day of the incident. Dean Alstrand testified that he and his wife had gone drinking with the petitioner on the night of the incident. Around 1 a.m., the three drove to Normandy. Alstrand stated that he drove the petitioner’s vehicle, with the petitioner riding in the passenger seat and Alstrand’s wife following in their vehicle. After they arrived in Normandy, Alstrand decided that the petitioner was too tired to drive home. He offered to drive him home, but the petitioner asked to be driven to the Green River Country Club. After driving the petitioner’s car to the country club parking lot, Alstrand placed the car keys on the sun visor and went home.

The petitioner also testified that Alstrand had driven him to the country club parking lot. He stated that he had asked to be driven there because he planned on meeting Parks to go golfing at 7 a.m. According to the petitioner, after Officer Miroux woke him, he told the officer that he had not driven to the parking lot.

Following the close of the petitioner’s case, the State moved for a directed finding on the motion to rescind. The trial court denied the motion. The State then recalled Officer Miroux, who testified that the petitioner had said that he had come directly from Normandy, but did not say whether he had driven from there. Miroux admitted that he had not seen the petitioner drive his vehicle that night.

After the close of the evidence, the trial court denied the petition to rescind. The petitioner then filed a motion to vacate the denial. At the hearing on the motion, the court stated that it did not believe the petitioner or his witnesses. Despite this finding, the court further found that there was insufficient direct or circumstantial evidence proving that the petitioner had operated his vehicle on a public highway. Accordingly, it granted the motion to vacate and rescinded the summary suspension.

On appeal, the State notes that the petitioner had the burden of presenting a prima facie case establishing a right to rescission. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) The State contends that the petitioner failed to meet his burden of proof.

Section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 100 et seq.) states that a person must first drive on the public highways of the State to be subject to the summary suspension provisions. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11— 501.1(a).) The petitioner presented testimony that he had not driven his vehicle to the parking lot. Moreover, when he was discovered, he was sleeping in his vehicle and his car keys were on top of the sun visor. For these reasons, we find that the petitioner presented a prima facie case establishing that he had not driven on the public highways.

The State also argues that the trial court erred in rescinding the suspension, because the court was under the mistaken belief that direct evidence of driving was required for the summary suspension law to apply. The State contends that driving on the public highways may be proved by circumstantial evidence and that it was so proved in this case.

We disagree with the State’s interpretation of the court’s comments. We read its comments not to mean that direct evidence of driving was required, but that the evidence as a whole failed to establish that the petitioner had driven on the public highways. Moreover, although driving on a public highway may be proved by circumstantial evidence, such evidence must show that the petitioner was driving at the time of his arrest or shortly before. (People v. Foster (1988), 170 Ill. App. 3d 306, 524 N.E.2d 681.) As we have already noted, the petitioner presented evidence tending to establish that he did not drive to the parking lot. The State presented little evidence suggesting that the petitioner was driving before his arrest. Accordingly, we find that the trial court did not err in rescinding the summary suspension.

The judgment of the circuit court of Bureau County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


text:
    MARY A. EDGINGTON, Plaintiff-Appellant, v. EARL E. EDGINGTON, Defendant-Appellee.
    Third District
    No. 3-89-0279
    Opinion filed January 10,1990.

      Bradley W. Swearingen, of Moehle, Swearingen & Associates, Ltd., of Washington, for appellant.
    James M. Voelker and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria (Rex K. Linder, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Mary Edgington, filed suit against the defendant, Earl Edgington, her former husband, seeking to recover damages for the death of their nine-year-old son, Eric. Eric was a passenger in the defendant’s vehicle when the defendant allegedly fell asleep at the wheel and the defendant’s automobile crashed into a guardrail off Interstate 474 in Peoria County, Illinois. At the time of the accident, the defendant-father was exercising his right of visitation with his son.

The trial court granted the defendant’s motion to dismiss counts I and II of the plaintiff’s second amended complaint, which sought recovery under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2) and the Survival Act (Ill. Rev. Stat. 1985, ch. llOVa, par. 27 — 6), based on the parental tort immunity doctrine. The defendant also moved to dismiss counts IV, V, and VI of the plaintiff’s second amended complaint for failure to state a cause of action for wilful and wanton negligence, which the trial court granted. The plaintiff appeals the dismissal of these counts. We affirm.

The plaintiff’s first contention is that the trial court erred in ruling that the doctrine of parental tort immunity is a bar to counts I and II of the complaint, which are causes of action grounded in negligence. The plaintiff argues that an exception to the parental tort immunity doctrine should be applied under the facts of this case. We do not agree.

The doctrine of parental tort immunity provides that children may not maintain suits against their parents for mere negligence within the scope of the parental relationship. (Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234.) Although there have been recent attempts to abrogate parental immunity, the Illinois Supreme Court has refused to nullify the doctrine. (Stallman v. Youngquist (1988), 125 Ill. 2d 267.) The public policy behind the doctrine is the avoidance of disrupting a harmonious family relationship, the avoidance of collusive claims, and the undermining of parental authority and discipline. Chamness v. Fairtrace (1987), 158 Ill. App. 3d 325.

The plaintiff argues that this case comes within an exception to the parental tort immunity doctrine that was set forth in Johnson v. Myers (1972), 2 Ill. App. 3d 844. In Johnson, the issue was whether the doctrine barred an action by unemancipated minors to recover damages for personal injuries caused by the negligence of a parent in the operation of an automobile where the parent died subsequent to the accident. The court found that the family relationship was severed by the death of the alleged tortfeasor and that parental tort immunity should not apply to the deceased mother.

This court in Marsh v. McNeill (1985), 136 Ill. App. 3d 616, declined to follow the reasoning of Johnson in a situation where the administrator of a deceased parent brought suit against an unemancipated minor who was allegedly negligent in the operation of an automobile. Marsh distinguished Johnson and found that an action brought by the administrator of a deceased parent’s estate is just as disruptive of family harmony as if the parent herself had filed suit. The Marsh court further noted that, in Johnson, the decedent was also the tortfeasor, whereas in Marsh the tortfeasor was alive. In the instant case, we agree with the trial court that the reasoning in Marsh should control. The mother, as administrator of the deceased child’s estate, is bringing suit against the father-tortfeasor, who is still alive. Eric, had he survived, would not have been able to bring an action against his father because of parental tort immunity. Similarly, Eric’s mother should not be able to maintain such an action.

The plaintiff next claims that the parental tort immunity doctrine should not be applied because the defendant’s negligence occurred outside the scope of the family relationship. (Schenk v. Schenk (1968), 100 Ill. App. 2d 199.) This argument has no merit. The defendant-father was driving home from work at the time of the accident. His son was in the vehicle because the father was exercising his visitation rights. As was stated in Johnson, “[i]n a modern society the motor vehicle plays an intimate and necessary part in the accomplishment of many family purposes.” (Johnson, 2 Ill. App. 2d at 846.) Therefore, this court finds that the conduct in question arose out of and was in furtherance of the father-son relationship.

The plaintiff also contends that the parental tort immunity doctrine should not be applied to bar a claim against a noncustodial parent. This court recently addressed this issue as one of first impression in Ackley v. Ackley (1988), 165 Ill. App. 3d 231. In Ackley, the court held that the noncustodial status of a parent was not a recognized exception to the parental tort immunity doctrine and that an exception based on the custodial status of the parties should only be made by the Illinois Supreme Court. We continue to agree with our reasoning in Ackley and conclude that the plaintiff’s argument is meritless.

Finally, the plaintiff argues that counts IV, V, and VI of the plaintiff’s second amended complaint sufficiently stated a cause of action for wilful and wanton conduct on the part of the defendant and that the trial court erred in dismissing those counts. Proper allegations of wilful and wanton conduct are not barred by the doctrine of parental tort immunity. (Nudd v. Matsoukas (1956), 7 Ill. 2d 608.) In Setinc v. Masny (1989), 185 Ill. App. 3d 15, this court reviewed what constituted sufficient wilful and wanton allegations in the context of the parental tort immunity doctrine. The Setinc court found that the plaintiff must show that the defendant’s conduct was

“[ijntentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.” (Setinc, 185 Ill. App. 3d at 19, citing Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481.)

In the case at bar, we find that the trial court did not err in dismissing counts IV through VI. The trial court apparently concluded that the plaintiff’s allegations that the defendant, while in a state of fatigue, drove his automobile recklessly off the interstate and into a guardrail did not rise to the level of wilful and wanton conduct. We agree.

For the foregoing reasons,- the judgment of the trial court is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE SCOTT

text:
    LYONS FEDERAL TRUST & SAVINGS BANK, f/k/a Lyons Savings & Loan Association, k/n/a Lyons Savings, Plaintiff-Appellee, v. MOLINE NATIONAL BANK et al., Defendants-Appellees (George D. Guritz et al., Counterplaintiffs and Counterdefendants-Appellees; Robert J. Wolfe, d/b/a Action Plumbing, Counterdefendant and Counterplaintiff-Appellant).
    Third District
    Nos. 3—89—0066, 3—89—0136 cons.
    Opinion filed January 10, 1990.
    Rehearing denied February 14, 1990.

      Robert R. Ruud, of Sandholm, Alvine & Ruud, of Moline, and Abramson & Fox, of Chicago (Thomas L. Brejcha, Jr., and David G. Duggan, of counsel), for George D. Guritz, Gerald W. Huge, and Paul B. Murray.
    Bozeman, Neighbour, Patton & Noe, of Moline (Jack L. Brooks, of counsel), for Robert J. Wolfe.

      Dennis R. Fox and Thomas Harper, both of Califf, Harper, Fox, Dailey & Slover, of Moline, and William Swindal and James E. McFarland, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee Lyons Federal Trust & Savings Bank.
   JUSTICE SCOTT

delivered the opinion of the court:

Two separate appeals from the circuit court of Rock Island County have been consolidated for review. Both appeals involve the same parties and operative facts; however, the primary issues raised in each appeal are distinct.

A mortgage foreclosure action was brought in Rock Island County by Lyons Federal Trust & Savings Bank (Lyons) principally against George Guritz, Gerald Huge, Paul Murray and John Stevenson (Stevenson), d/b/a GHMS Real Estate Partnership (GHMS), as the beneficial owners of a land trust, wherein Lyons supplied financing for GHMS to build an apartment complex commonly known as Pebble Creek. Stevenson was subsequently determined bankrupt and dismissed as a defendant. Robert J. Wolfe, d/b/a Action Plumbing (Wolf), was included as a defendant in the action because of various electrical and plumbing services provided by Wolfe at Pebble Creek resulting in Wolfe recording a mechanic’s lien against the property. Wolfe then filed an intervening claim against GHMS and Lyons to foreclose on the mechanic’s lien and additionally filed a counterclaim against GHMS for alleged breach of oral contract to perform work at Pebble Creek. After a bench trial on Wolfe’s mechanic’s lien and breach of contract claims and hearing post-trial motions, the circuit court by order dated February 16, 1989, entered a judgment of $107,104.71 against GHMS on Wolfe’s breach of contract claim and denied judgment of Wolfe’s mechanic’s lien foreclosure based on Wolfe’s failure to give notice of the lien to Lyons as required by section 24 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 24). One appeal was initiated by GHMS, arguing the trial court erred in finding in favor of Wolfe on the breach of contract claim and, alternatively, that the award of damages was excessive. The second appeal was instituted by Wolfe based on the circuit court’s denial of its mechanic’s lien foreclosure action.

Lyons mortgage on Pebble Creek was recorded November 19, 1982. Wolfe’s mechanic’s lien was filed on February 23, 1984, and alleged that “on or about April 29, 1983, *** [Wolfe] *** made an oral contract with John Stevenson,” a former partner of GHMS. In Wolfe’s verified claim to foreclose on the mechanic’s lien, Wolfe first alleged that the oral contract inception date was April 29, 1983, and engaged Wolfe to do a variety of electrical and plumbing work on a “time and material basis.” Wolfe claimed to have completed the work on December 23, 1983, and a balance of $107,161.75 was owed under the contract. Wolfe was subsequently granted leave to amend the counterclaim and changed the alleged inception date of the oral agreement to August 23, 1982, rather than April 29, 1983. In its answer to the amended pleadings, GHMS admitted the existence of an oral agreement on August 23, 1982, but denied the terms encompassed all that Wolfe alleged and GHMS affirmatively alleged that all work performed under the August 23, 1982, contract had been paid for in full.

Only two witnesses testified at trial, Robert Wolfe and John Stevenson. The evidence centered primarily around the date and scope of the agreement entered into between Wolfe and Stevenson on August 23, 1982, the amount due Wolfe by Stevenson for work performed at Pebble Creek and the billing and payment practices of Wolfe and Stevenson.

GHMS APPEAL

The appeal of GHMS centers on the oral contract between Wolfe and Stevenson, as agent for GHMS. GHMS essentially claims that there were multiple contracts entered into between Wolfe and Stevenson, some of which were paid in full, and on others, partial payments were made. GHMS further claims that Wolfe was paid in full for the contract entered into on August 23, 1983, and therefore, GHMS was entitled to judgment for the contract entered into on that date. Wolfe, on the other hand, disagrees there was a succession of contracts and claims the terms of the contract entered into on August 23, 1982, were the cornerstone for all work performed by Wolfe at Pebble Creek. Wolfe alleged the August 23, 1982, contract set hourly rates for skilled and unskilled labor, set hourly rates for the use of certain equipment, and provided that Wolfe would do whatever Stevenson said to do on a time and material basis. The circuit court determined an oral contract existed.

GHMS makes two arguments as to why the circuit court erred in granting judgment in favor of Wolfe on the oral contract claim. First, GHMS argues that Wolfe’s sworn statement of mechanic’s lien and verified countercomplaint alleging the April 29, 1983, contract date are judicial admissions denying judgment as a matter of law or, alternatively, are serious inconsistencies rendering Mr. Wolfe’s testimony unbelievable and therefore against the manifest weight of the evidence. GHMS avers that Wolfe’s change of the contract date was done solely for the purpose of obtaining priority over mortgagee Lyons. Curiously, however, GHMS never objected to Wolfe’s amendment alleging August 23, 1982, as the contract date, and in fact, admitted that a contract was entered into between the parties on that date but denied the scope of the contract covered all work done by Wolfe on the Pebble Creek project. Thus, GHMS argues that since the evidence shows there were a series of contracts entered into between the parties and the contract dated August 23, 1982, was paid in full, judgment must be entered against Wolfe and in favor of GHMS. We disagree.

Undeniably, Wolfe’s statement of mechanic’s lien did state that the contract date was April 29, 1983. Nonetheless, Wolfe sought leave and was allowed, without objection, to amend the pleadings and allege a contract date of August 23, 1982. We disagree with GHMS’ contention that the date alleged in the statement of mechanic’s lien constituted a binding judicial admission, since a statement of mechanic’s lien does not necessarily require a contract date to be alleged (see Ill. Rev. Stat. 1987, ch. 82, par. 7), nor is the lien statement necessary for Wolfe’s contract claim. We consider the variance in the two alleged contract dates amounts to adverse evidence entitled to little consideration since there was no showing that GHMS in any way relied on the verified claim for lien to its detriment. See Office Electronics, Inc. v. Grafic Forms, Inc. (1979), 72 Ill. App. 3d 456, 390 N.E.2d 953 (principle of estoppel applied to inconsistent original and amended pleadings); Precision Extrusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 183 N.E.2d 547 (an amended, abandoned or withdrawn original pleading is treated as an ordinary admission); Nolan v. American Telephone & Telegraph Co. (1945), 326 Ill. App. 328, 61 N.E.2d 876 (inconsistent statement in an abandoned pleading is adverse evidence, but not a conclusive judicial admission).

The trial court’s finding that the contract was entered into on August 23, 1982, is supported by the following evidence: that the only time labor and machinery hourly rates were discussed was pursuant to the August 23, 1982, contract; that the contract was not based on a bid of a job but was for time and material; and that all of the work was performed on the same general project. It is also not fatal that no specific amount of work or the length of Wolfe’s employment at Pebble Creek were not expressly defined by the terms of the contract. Employment contracts with no definite termination date will exist so long as it is mutually satisfactory between the parties, with the understanding that either party may terminate the contract at will. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 482 N.E.2d 377; Schoen v. Caterpillar Tractor Co. (1968), 103 Ill. App. 2d 197, 243 N.E.2d 31.) It is simply unbelievable that multiple contracts were entered into each time Wolfe performed work at the request of Stevenson at the Pebble Creek project.

GHMS next contends the damages awarded Wolfe by the trial court are against the manifest weight of the evidence. GHMS first argues that Wolfe’s execution of final lien waivers either bars his claim for payment after October 3, 1984, or seriously calls to question the truthfulness of those claims for payment. GHMS additionally claims that Wolfe’s purported method of using nonsequenced invoices infers that the invoices were fabricated. We disagree with these contentions. The trial court had before it all invoices, lien waivers, payments and supporting testimony in determining the amount owed under the contract. Our review of this evidence supports our belief that the evidence substantiates the circuit court’s finding. The execution of lien waivers does not bar any claim for additional payments, because the evidence supports the circuit court’s findings that these waivers were necessarily executed by Wolfe in order to receive partial payment and were intended to be partial lien waivers as to particular work. Moreover, the existence of lien waivers only bars the right to assert a lien under the Mechanics’ Liens Act, but it does not operate to extinguish the underlying obligation. (Capitol Plumbing & Heating Supply Co. v. Snyder (1969), 104 Ill. App. 2d 431, 244 N.E.2d 856.) We also do not believe that Wolfe’s billing method of using randomly sequenced invoices calls to question the truthfulness of the invoices. The evidence showed that Wolfe had always used randomly sequenced invoices during the course of the Pebble Creek project, and prior to GHMS’ financial difficulties, those invoices were apparently paid without question. Thus, we do not find anything particularly unusual about the questioned invoices being randomly sequenced. Moreover, the group of invoices submitted by Wolfe after walking off the job is not unusual because the evidence supports the finding that Wolfe held up billing at the request of Stevenson.

As to GHMS’ contention that Wolfe engaged in the practice of padding bills in that more hours worked were shown on the invoices than were transcribed in the time sheets. The trial court, however, gave due credit for all those hours that were questionable, which in actuality were very few compared to the total hours spent on the project by Wolfe. The trial court also gave credit for items purchased but unused on the project. Our review of the evidence reveals the trial court did not abuse its discretion in awarding damages in the sum of $107,104.71.

Finally, GHMS contends that the judgment of the trial court was not final and appealable because the mortgage foreclosure action remained unresolved. We disagree. This separate contract action involved only GHMS and Wolfe. Lyons had no interest in this aspect of the litigation. Although it is true that Wolfe could attempt to execute on the Pebble Creek property to satisfy the judgment, that process would surely be halted because of the pending foreclosure action. Execution against the Pebble Creek property, however, is not the only method available to Wolfe in attempting to satisfy the judgment and there is no good reason why Wolfe should not be allowed to pursue those avenues. “An order is final [and appealable] if it disposes of the rights of the parties either on the entire controversy or some definite and [distinct] part of it.” (McGrew v. Heinold Commodities, Inc. (1986), 147 Ill. App. 3d 104, 109, 497 N.E.2d 424.) Simply because other counts of a complaint remain unresolved that are related to the same general occurrence is not fatal to an appeal. This judgment is appealable because it disposes of a distinct cause of action between all of the parties involved. Heinrich v. Peabody International Cory. (1984), 99 Ill. 2d 344, 459 N.E.2d 935.

The decision of the trial court granting judgment in favor of Wolfe and against GHMS in the amount of $107,104.71 on Wolfe’s oral contract claim is affirmed.

WOLFE’S APPEAL

Wolfe also appealed a part of the circuit court’s order dated February 16, 1989, wherein judgment was entered in favor of GHMS and Lyons and against Wolfe on Wolfe’s counterclaim for foreclosure of the mechanic’s lien. In essence, the trial court found Wolfe to be a subcontractor and as such failed to give notice to the owner and mortgagee within 90 days of completing the work as required by section 24 of the Illinois Mechanics’ Liens Act. (Ill. Rev. Stat. 1987, ch. 82, par. 24.) Wolfe raises two issues for review. First, whether Wolfe is a subcontractor within the meaning of the Illinois Mechanics’ Liens Act, and second, whether Wolfe is entitled to prejudgment interest under the Mechanics’ Liens Act.

Stevenson, although a partner in GHMS, was also the owner of R.I.C. Construction, which GHMS contends was the original contractor to which Wolfe furnished labor and material, thereby making Wolfe a subcontractor. It is also uncontradicted that Stevenson was a beneficial owner of the property and acting as agent for GHMS in the development of Pebble Creek. The question thus becomes whether Stevenson was purely a partial owner and agent of GHMS or was he an original contractor in his capacity as owner of R.I.C. Construction. Determining Stevenson’s status will necessarily determine Wolfe’s status.

In answering the question of Stevenson’s status, we must keep in mind that on GHMS’ appeal, we affirmed the trial court’s decision that an oral agreement existed between Wolfe and GHMS. In fact, GHMS has admitted in its pleadings and throughout its briefs on appeal that contracts were entered into with Wolfe. It is also undisputed that GHMS is the beneficial owner of the Pebble Creek property. Section 1 of the Illinois Mechanics’ Liens Act (the Act), in pertinent part, provides:

“Any person who shall by any contract *** with the owner of a lot or tract of land, or with one whom the owner has authorized *** to improve the lot or tract of land *** or to furnish material *** on the order of his agent *** is known under this Act as a contractor, and has a lien upon the whole of such lot or tract of land *** for the amount due to him for such material, fixtures, apparatus, machinery, services or labor, and interest from the date the same is due.” Ill. Rev. Stat. 1987, ch. 82, par. 1.

Stevenson, as authorized agent for GHMS, entered into a contract with Wolfe, and this being the case, it is clear that Wolfe must be considered a contractor under the Act. It is true that invoices sent by Wolfe were directed to R.I.C. Construction, that lien waivers were executed by Wolfe in favor of R.I.C. Construction, and R.I.C. Construction filed a statement with Lyons listing Wolfe as a subcontractor. Nonetheless, it is entirely inconsistent for the circuit court to determine that an oral agreement existed between Wolfe and GHMS and yet find Wolfe a subcontractor of R.I.C. Construction on the apparent basis that Wolfe’s contract was entered into with R.I.C. Construction. If Wolfe was a subcontractor, then no cause of action in contract would exist for Wolfe against GHMS because there would be no privity of contract between the parties. (See Kilburg v. Petrolagar Laboratories, Inc. (1935), 280 Ill. App. 527; I. Lurya Lumber Co. v. Goldberg (1916), 198 Ill. App. 374; Baker v. Mayer (1911), 163 Ill. App. 391; Knickerbocker Ice Co. v. Murphy (1895), 59 Ill. App. 3d 39.) Thus, we must decide which finding of the court is appropriate, and since GHMS has admitted throughout that, at a minimum, a series of contracts existed between Wolfe and GHMS and other evidence supports the existence of a contract as detailed in GHMS’ appeal, we consider the trial court’s finding of a contract between Wolfe and GHMS to be correct, and Wolfe is necessarily then a contractor under section 1 of the Act. We further consider that Wolfe, as a contractor, is entitled to interest from the date payments were due pursuant to section 1 of the Act. Ill. Rev. Stat. 1987, ch. 82, par. 1.

We must next consider whether Wolfe’s mechanic’s lien has priority over Lyons’ mortgage for foreclosure purposes. To this extent, the central question is whether Wolfe is bound by the contract date of April 29, 1983, as stated in Wolfe’s claim for lien and attached to Wolfe’s original verified pleading, or whether Wolfe’s amended pleading allegation of August 23, 1982, which was allowed without objection, is the proper date for consideration under this cause of action. The significance of this amendment is that April 29, 1983, is subsequent to the date Lyons’ mortgage was recorded, but August 23, 1982, precedes the recording date of the mortgage. As in Wolfe’s contract claim, GHMS admitted a contract existed between the parties on August 23, 1982, but denied the scope of that agreement. The principal party affected, however, is the mortgagee Lyons and not GHMS.

Lyons argues that section 7 of the Act bars Wolfe’s lien for any date prior to April 29, 1983, in that section 7 of the Act requires that the contract inception date be stated in the claim for lien and the Act implicitly prohibits a lien claimant from making any amendments to the claim for lien after four months from the date of completion of the contract. Therefore, Lyons asserts Wolfe is bound to the date of April 29, 1983, in that the sworn affidavit of the claim for lien as well as Wolfe’s original, verified pleadings are judicial admissions which cannot be avoided by the filing of amended pleadings. As authority, Lyons primarily relies on the cases of Chambers v. Appel (1946), 392 Ill. 294, 64 N.E.2d 511, Mutual Services, Inc. v. Ballantrae Development Co. (1987), 159 Ill. App. 3d 549, 510 N.E.2d 1219, Premier Electrical Construction Co. v. LaSalle National Bank (1985), 132 Ill. App. 3d 485, 477 N.E.2d 1249, and Federal Savings & Loan Insurance Corp. v. American National Bank & Trust Co. (1983), 115 Ill. App. 3d 426, 450 N.E.2d 1360. These decisions, however, are distinguishable.

Initially, we do not agree with Lyons’ position that the section 7 claim for lien must state the date of the contract. Section 7 only requires that the claim for lien be verified by the contractor, his agent or employee; contain a brief statement of the contract; state the balance due under the contract after allowing all credits; and give sufficient description of the lot[s] affected. If an error is made in any allegations which the Act does not require in the claim for lien, such error does not invalidate the statement or defeat the lien. (See United Cork Cos. v. Volland (1937), 365 Ill. 564, 7 N.E.2d 301; Inter-State Building & Loan Association v. Ayers (1898), 177 Ill. 9, 52 N.E. 342; Culver v. Schroth (1894), 153 Ill. 437, 39 N.E. 115.) This interpretation does not derogate from the purpose of section 7, which provides incumbrancers or owners of property with notice of the existence, nature and character of a lien, to enable third parties to determine from the claim whether the lien is enforceable. (Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291.) Nor does this interpretation violate the notion that the Act is to be strictly construed with reference to the requirements upon which the lien depends. (Waldbillig Woodworking, Inc. v. King Arthur’s North, Ltd. (1982), 104 Ill. App. 3d 417, 432 N.E.2d 1048.) This interpretation does, however, seem to strike a balance between the Mechanics’ Liens Act and sections 2 — 613 and 2 — 616 of the Illinois Code of Civil Procedure allowing, respectively, for pleading in the alternative (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613) and amending pleadings prior to judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616).

Keeping in mind that a statement of the contract date in a section 7 claim for lien is not a necessary prerequisite to enforcing the lien, we therefore determine that Wolfe’s verified claim for lien and original pleadings alleging a contract date of April 23, 1983, are not binding judicial admissions. This result is, in fact, bom out by the Chambers case Lyons has cited as authority for its position. In Chambers, the court determined that “admissions of fact contained in pleadings which have been withdrawn, dismissed or superseded by an amended pleading *** are admissible in evidence as admissions against interest. They are not conclusive against the party making them and may be explained or contradicted.” (Chambers v. Appel, 392 Ill. at 307.) The court did distinguish, however, those cases wherein a party has relied to its detriment on the sworn statements or pleadings of another party and determined that in such a situation, the admissions are conclusive on the party making them. No such evidence has been presented here since Wolfe’s claim for lien was filed in 1984, well after Lyons had filed its mortgage. In Federal Savings, another case cited by Lyons, the court determined that a contractor could not amend its claim for lien after the four month limitation period under section 7 had expired, thereby defeating the contractor’s claim for lien. The defect in the claim for lien the court focused upon concerned the contractor’s failure to allege facts entitling it to a lien pursuant to section 1 of the Act. (Ill. Rev. Stat. 1987, ch. 82, par. 1.) Thus, there was no way for a third party to ascertain whether the lien was enforceable. (Federal Savings & Loan Association v. American National Bank, 115 Ill. App. 3d 426, 450 N.E.2d 820.) Wolfe’s claim for lien is not defective in this manner.

Additionally, an allegation of when a contract is entered into is not wholly a statement of fact, but at most, a mixed factual and legal question. A pure statement of fact would be a statement of when work commenced on a project. It is the province of the trial court to determine the existence and terms of a contract. (Premier Electrical Construction Co. v. La Salle National Bank (1985), 132 Ill. App. 3d 485, 477 N.E.2d 1249.) Therefore, to the extent that case law exists stating that prior verified statements of fact are binding judicial admissions, those cases are inapplicable to the present situation because Wolfe’s statement of the contract inception date is not a pure statement of fact, but at least in part, a conclusory statement or opinion.

The circuit court found that an oral contract existed between Wolfe and GHMS and that it was entered into on August 23, 1982. Based on this finding, it is impossible for Wolfe to be a subcontractor within the meaning of the Mechanics’ Liens Act. We therefore reverse the decision of the trial court as against the manifest weight of the evidence with instructions to grant a judgment of foreclosure in favor of Wolfe and further remand the cause to the circuit court to assess statutory interest due Wolfe as provided in section 1 of the Mechanics’ Liens Act.

Reversed and remanded.

GHMS’ appeal is therefore affirmed; Wolfe’s appeal is reversed and remanded.

STOUDER and WOMBACHER, JJ., concur.


author: PER CURIAM:

text:
      In re SHANE L. GRIMES, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Shane L. Grimes, Respondent-Appellant).
    Third District
    No. 3—89—0198
    Opinion filed January 16,1990.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PER CURIAM:

The trial court found that the respondent, Shane

At the hearing on the State’s petition to commit the respondent, psychiatrist Shirley Eyman testified that the respondent was admitted to the Zeller Mental Health Center on February 23, 1989. Dr. Eyman stated that at the time of his admission the respondent had fresh burns on his hands. The burns had apparently been sustained when he started a fire in his apartment. She stated that the respondent appeared disoriented and expressed loose associations, paranoid ideations, and inappropriate responses. He was diagnosed as having chronic disorganized schizophrenia.

Dr. Eyman testified that the respondent would be unable to meet his own basic needs. She further stated that he was dangerous to himself and to others due to his history of setting fires. Eyman noted that the respondent had made some progress since his admission, but stated that his judgment remained somewhat limited. She also stated that he had been admitted to Zeller on several prior occasions.

The trial court asked the respondent whether he wished to be released. The respondent stated that he would like to leave if they would return his “stuff.” The State’s Attorney explained that the respondent believed that the staff at Zeller had stolen a platinum spoon from him. Based upon the evidence presented, the trial court found that the respondent was mentally ill and that because of his illness he could reasonably be expected to inflict serious harm upon himself or another in the near future.

On appeal, the respondent first argues that he was deprived of his right to counsel. We note that the appellant has the duty of presenting a complete record on appeal so that the reviewing court will be fully informed regarding the issues in the case. (In re Marriage of Macaluso (1982), 110 Ill. App. 3d 838, 443 N.E.2d 1.) Any doubts arising from the incompleteness of the record must be resolved against the appellant. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.

Section 3 — 805 of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 805) provides in relevant part:

“Every respondent alleged to be subject to involuntary admission shall be represented by counsel. If the respondent is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appoint counsel for him.”

The appointment of counsel must be made at the time the hearing is set and not merely at the hearing itself. In re Walters (1989), 183 Ill. App. 3d 452, 539 N.E.2d 454.

In the instant case, it is not clear from the record when counsel was appointed for the respondent. We note, however, that he was represented by counsel at the hearing, and the record indicates that the respondent conferred with his attorney prior to that hearing. Because the record is silent as to when counsel was appointed for the respondent, we must presume that counsel was appointed at the time the hearing date was set, as is required by the Code.

We next note, as does the State, that the respondent appears to raise an ineffective assistance of counsel issue in his brief. However, in his reply brief the respondent criticizes the State for “skirtpng] the issue of statutory noncompliance by addressing it as unfounded ineffective assistance of counsel.” Despite this criticism, the respondent goes on to rebut the State’s position on the ineffective assistance of counsel argument. Accordingly, this court cannot determine whether the respondent intended to raise this as an issue. We have therefore examined the respondent’s attorney’s representation during the involuntary commitment hearing. We find that it was adequate.

The respondent further argues that the order of the trial court is void because it failed to state the factual findings and legal conclusions for its decision. Section 3 — 816(a) of the Code (Ill. Rev. Stat. 1987, ch. 91W, par. 3 — 816(a)) provides in relevant part:

“(a) Every final order entered by the court under this Act shall be in writing and shall be accompanied by a statement on the record of the court’s findings of fact and conclusions of law. A copy of such order shall be promptly given to the patient or his attorney and to the facility director of the facility or alternative treatment to which the patient is admitted or to the person in whose care and custody the patient is placed.”

In the instant case, the trial court stated on the record: “Well, on the basis of the evidence, the court finds that [the respondent] is mentally ill and because of his illness, is reasonably expected to inflict serious physical harm upon himself or another in the near future.” Therefore, contrary to the respondent’s claim, the trial court did state its factual findings and conclusions on the record and thus satisfied the requirements of section 3 — 816(a).

Next, the respondent argües that he did not receive a copy of the involuntary commitment order. Section 3 — 816(a) provides, however, that a copy of the order shall be given to the patient or his attorney. Although the respondent contends that he did not receive a copy of the order, the record does not indicate whether the respondent’s attorney received a copy. Therefore, we must presume that the trial court complied with the statute and that the respondent’s attorney received a copy of the trial court’s order. People ex rel. Causley v. Jackson (1988), 171 Ill. App. 3d 464, 527 N.E.2d 16.

The respondent also argues that the trial court failed to specify the duration of the treatment period. Section 3 — 813(a) of the Code (Ill. Rev. Stat. 1987, ch. 9172, par. 3 — 813(a)) provides in relevant part:

“(a) An initial order for hospitalization or alternative treatment shall be for a period not to exceed 60 days.”

Here, the trial court’s order did not state that the respondent’s hospitalization was limited to 60 days. We note, however, that under the statute the court is not required to make such a finding. Further, we note that the order itself directs the reader to the information printed on the reverse side, which states that an order for admission is initially valid for no more than 60 days. Accordingly, we find that the trial court’s order complied with the statute.

The respondent further argues that he was not served with a copy of the petition within 12 hours of his admission, as required under section 3 — 205 of the Code (Ill. Rev. Stat. 1987, ch. 9172, par. 3— 205). We find no merit to this argument. The record shows that the reverse side of the petition for involuntary admission, which stated that a copy of the petition had been given to the respondent within 12 hours of his admission, was signed by Diane Ingrasseole, a nursing supervisor at Zeller.

Lastly, the respondent argues that the evidence did not clearly and convincingly establish that he was subject to involuntary admission. We note that in an involuntary commitment proceeding, the petitioner must prove the allegations of the complaint by clear and convincing evidence. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) Mere proof of the presence of mental illness is not, by itself, sufficient to establish that a person needs mental treatment. (In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.) However, the State is not required to prove that the respondent is a definite danger to himself or society. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) Thus, courts do not have to wait until someone is harmed before ordering the hospitalization of a respondent. (In re Haber (1979), 78 Ill. App. 3d 1120, 398 N.E.2d 121.) Further, a reviewing court will uphold a commitment order where there is a reasonable expectation that the respondent will engage in dangerous conduct. In re Powell (1980), 85 Ill. App. 3d 877, 407 N.E.2d 658.

In the instant case, the uncontradicted testimony of Dr. Eyman showed that the respondent was suffering from chronic disorganized schizophrenia. At the time of his admission, the respondent had fresh burns on his hands, which he had sustained after starting a fire in his apartment. Dr. Eyman further testified that the defendant presented a danger to himself and to others because of his history of setting fires. She estimated that it would be several months before the respondent would get better. She also noted that the respondent had refused to voluntarily hospitalize himself. Based upon this evidence, we find that the trial court properly concluded that the respondent was mentally ill and that because of his illness he could reasonably be expected to inflict serious physical harm upon himself or another in the near future.

The decision of the circuit court of Peoria County is affirmed.

Affirmed.


author: PRESIDING JUSTICE WOMBACHER

text:
    MARY HOUSER, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3-89-0132
    Opinion filed December 29,1989.

      Scott J. Ganassin, of Peter F. Ferracuti & Associates, of Ottawa, for appellant.
    Michael T. Reagan, of Ottawa, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiff, Mary Houser, brought a declaratory judgment action against the defendant, State Farm Insurance Company, to determine the extent of the plaintiff’s uninsured motorist coverage. The defendant filed a motion for summary judgment. The trial court granted the motion, and the plaintiff appeals. We affirm.

The record shows that on May 31, 1986, the plaintiff was driving her car and was injured when the operator of an uninsured motor vehicle collided with her car. At the time, the plaintiff was insured by the defendant. Thereafter, the plaintiff made a written claim to the defendant for benefits under the uninsured motorist provisions of her policy. The defendant agreed to pay the $25,000 limit of the plaintiff’s policy. The plaintiff then brought this declaratory judgment action seeking to establish that her uninsured motorist coverage exceeded the $25,000 policy limit.

The complaint alleged that the plaintiff was entitled to uninsured motorist benefits up to her policy’s higher bodily injury liability limits, because the defendant had failed to offer uninsured motorist coverage up to those limits. The complaint also alleged that the defendant had failed to adequately advise the plaintiff about the nature of uninsured motorist coverage. The plaintiff contended that these alleged errors violated section 143a — 2 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2), which required insurance companies to inform policyholders that they could get uninsured motorist coverage up to the same amount as their bodily injury liability coverage.

In reply, the defendant stated that following the enactment of section 143a — 2, it had started a campaign in 1983 designed to inform its policyholders about the uninsured motorist coverage limits. As part of this campaign, Illinois policyholders were offered the opportunity to increase their uninsured motorist coverage. In addition, each policyholder was sent a booklet, NA59105d IL, which explained the coverage. The procedure used to send this information was a computerized mailing system. The computer was programmed to print the offer of new coverage and to insert booklets in mailings to policyholders. This information was then enclosed with the policyholders’ premium renewal notices.

The defendant stated that since the plaintiff was a policyholder at the time of this campaign, she would have been mailed the offer and the booklet. As evidence that the plaintiff received this information, the defendant established that the plaintiff had paid the enclosed renewal premium.

In the course of discovery, however, the defendant gave the plaintiff booklet NA59102c IL, which discussed underinsured coverage, rather than booklet NA59105d IL, which discussed uninsured coverage. Upon discovering its mistake, the defendant moved for a continuance and filed affidavits explaining how the wrong document had been produced during discovery.

The defendant explained that at the time discovery was initially compiled, it assumed that the plaintiff’s coverage in 1983 was the same as the coverage she had initially purchased in 1980. Based on this assumption, the defendant presumed that its computer had sent the plaintiff booklet NA59102c IL during its 1983 campaign. In final preparation for trial, however, the defendant realized that the plaintiff had changed her coverage status in 1981. Based on this change of coverage, the defendant contended that its computerized mailing system would have automatically mailed the plaintiff booklet NA59105d IL.

The trial court granted the defendant’s motion for a continuance. Thereafter, the defendant filed a motion for summary judgment, contending that the plaintiff’s claim failed to raise a genuine issue of material fact. The trial court granted the motion, finding that the defendant had offered the plaintiff uninsured motorist coverage in a commercially reasonable manner.

On appeal, the plaintiff initially argues that the trial court improperly granted the defendant’s motion for summary judgment. Specifically, the plaintiff argues that the defendant’s discovery mistake created an issue of fact as to whether the defendant offered the plaintiff the opportunity to purchase additional uninsured motorist coverage.

Before reaching that issue, we note that the plaintiff has filed a motion to strike the “Additional Statement of Facts” contained in the defendant’s appeal brief. She contends that the statement contains facts not in the record and contains conclusions and arguments. We previously took this motion with the case. To the extent the defendant’s statement of facts strays from the bare facts contained in the record, the plaintiff’s motion is hereby granted.

Returning to the issue on appeal, we note that a motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Although the plaintiff, as the party opposing summary judgment, is not required to prove her case at this stage, she must provide a factual basis under which she would be entitled to judgment, and she has an affirmative duty to bring forth facts and evidence of a cognizable cause of action. Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 514 N.E.2d 68.

To determine that a cause of action was not established in this case, the trial court had to find that the defendant’s offer was made in a “commercially reasonable manner.” (Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548.) While no Illinois court has defined what constitutes a “commercially reasonable manner,” in Orolin v. Hartford Accident & Indemnity Co. (N.D. Ill. 1984), 585 F. Supp. 97, 100, the Federal court adopted an objective standard of reasonableness. It found commercially reasonable an insurance company’s practice of attaching underinsured motorist coverage information to premium renewal notices.

Following the Orolin court’s objective standard of reasonableness, we find commercially reasonable the instant defendant’s method of mailing underinsured and uninsured motorist information with its renewal notices. The method employed by the defendant reasonably insured that its policyholders would be informed about the availability of uninsured motorist coverage. In addition, we find that booklet NA59105d IL adequately informed the plaintiff about the coverage. We agree with the trial court that the plaintiff failed to set forth any facts indicating that the defendant’s offer was made in an unreasonable manner.

We also find meritless the plaintiff’s argument that the defendant’s discovery mistake created an issue of fact. The plaintiff has not shown this error to be indicative of an error committed by the defendant during the actual offer process. The defendant’s mistake was committed years after the booklet was mailed to the plaintiff. This type of discovery error does not create a genuine issue of material fact.

The plaintiff also argues that summary judgment was improperly granted because the trial court failed to grant her oral request for a continuance. She contends that additional discovery time was needed to determine whether the mailing procedure used by the defendant met the statutory requirements of a proper offer.

A motion for a continuance must be supported by an affidavit, and when no affidavit is filed, the denial of the motion cannot be regarded as an abuse of discretion. (Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 407 N.E.2d 799.) Furthermore, Supreme Court Rule 191(b) (107 Ill. 2d R. 191(b)), which provides the procedure to be used when a nonmoving party does not have sufficient information to respond to a motion for summary judgment, also requires that an affidavit be filed.

In the instant case, the plaintiff did not file an affidavit with her request for a continuance. Accordingly, we find no error in the trial court’s denial of her request.

The plaintiff’s final argument is that the affidavits provided in support of the defendant’s motion for summary judgment should have been stricken since they did not meet the requirements of Supreme Court Rule 191. Specifically, she argues that the affidavits lacked a certification expressing the affiants’ personal knowledge of the information contained therein and their ability to competently testify thereto.

Supreme Court Rule 191 (107 Ill. 2d R. 191) states that affidavits in support of a motion for summary judgment “shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” The rule does not require that each affidavit include an express statement to that effect; rather, the rule is satisfied if it appears from the document as a whole that the affiant would be competent to testify if called upon. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

In the instant case, the affidavits filed by the defendant reflected the affiants’ job titles, their duties in connection with their positions, and their roles in the preparation of the procedures and documents used by the defendant in its 1983 informational campaign. We find that this information satisfied the competency requirement of Rule 191. We therefore hold that the trial court properly granted the defendant’s motion for summary judgment.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.