author: JUSTICE WOODWARD

text:
    CHARLES SMITH, SR., as Special Adm’r of the Estate of Charles Smith, Jr., Deceased, Plaintiff-Appellant, v. TRI-R VENDING et al., Defendants-Appellees.
    Second District
    No. 2—92—0583
    Opinion filed July 23, 1993.
    Rehearing denied September 23, 1993.
    Charles A. Cohn and Erwin Cohn, both of Cohn & Associates, of Chicago, for appellant.

      John C. Kiely and Michele H. Harland, both of Law Offices of John C. Kiely, of Chicago, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Charles Smith, Sr., as special administrator of the estate of Charles Smith, Jr. (Smith), appeals a grant of summary judgment for defendants, Tri-R Vending and its employee, Luis Cotto. Plaintiff sued under the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, pars. 1 through 2.2), alleging that Smith was a passenger in a truck that Cotto negligently drove into a light pole, causing Smith’s death.

In their reply and in their motion for summary judgment, defendants alleged that, at the time of the incident, Smith was illegally trespassing on the truck and that Cotto neither owed nor breached any duty of ordinary care (see Ill. Rev. Stat. 1989, ch. 951/2, pars. 10— 201, 11 — 1006(a)). Defendants filed Cotto’s affidavit and discovery deposition in support of the motion for summary judgment. Plaintiff submitted no counteraffidavits or evidence in response, but moved to strike the deposition and affidavit as barred by the Dead Man’s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201). The trial court struck the evidence and granted defendants’ motion for summary judgment. Plaintiff appeals.

The issue on appeal is whether plaintiff may withstand a motion for summary judgment where the testimony of the lone surviving witness to the accident has properly been excluded pursuant to the Dead Man’s Act. Plaintiff argues that, even without the testimony of Cotto — concededly the only possible occurrence witness at a trial — the pleadings, including defendants’ admissions, raise a genuine issue of whether Cotto’s negligence proximately caused Smith’s fatal injuries.

Defendants respond that summary judgment was proper because, lacking any occurrence testimony, plaintiff will be unable to prove any of the elements of a cause of action for negligence. Thus, whatever issues of fact might emerge from the pleadings, plaintiff will be unable to move beyond the pleading stage by presenting proof of his allegations. Without waiving the Dead Man’s Act, plaintiff will be unable to prove his case; but, had plaintiff waived the Dead Man’s Act, Cotto’s uncontradicted deposition and affidavit would have established that defendants are entitled to judgment as a matter of law.

Plaintiff’s complaint alleged the following. On May 24, 1991, at about 3 a.m., Smith was a passenger on a truck owned by Tri-R Vending and driven by Cotto. As Cotto entered the roadway on the property of Abbott Laboratories in North Chicago, he breached his duty of care to Smith by failing to keep a proper lookout, speeding, and otherwise driving negligently. Cotto’s negligence proximately caused the truck to leave the roadway and collide with the light pole, fatally injuring Smith.

Defendants’ answer alleged that, at the time of the accident, Smith was unlawfully trespassing on the outside of the truck. Thus, defendants owed him no duty of due care. Cotto was not negligent and did not proximately cause Smith’s injuries. Smith’s own negligence proximately caused his injuries.

Defendants moved for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005), submitting Cotto’s discovery deposition and affidavit. They argued that plaintiff could not prove the elements of a cause of action unless he waived the Dead Man’s Act, allowing in Cot-to’s testimony; however, Cotto’s testimony established that plaintiff could not recover.

Cotto’s deposition and affidavit described the accident as follows. On the morning of May 24, 1991, Cotto was working his customary overnight shift as a truck driver for Tri-R Vending. At about 2:30 a.m., he stopped at a doughnut shop on 22nd Street in North Chicago to get “lunch” and use the restroom. As he exited his truck, he saw nobody else in the area. After visiting the doughnut shop, Cotto got into the truck and started to drive west on 22nd Street. He saw Smith, who was walking east on the sidewalk and waving toward him. Tri-R Vending did not allow its drivers to pick up hitchhikers, so Cotto ignored Smith and drove on.

Smith jumped onto the front passenger’s side of the moving truck. He started to shout and pound on the window. Cotto told Smith to leave or Cotto would call the police on his mobile phone. Smith stayed, broke the side window, started threatening Cotto, and put his hand on the dashboard. Cotto, in fear for his safety, tried to subdue Smith with a piece of pipe.

When Smith refused to leave, Cotto drove to the lot at Abbott Laboratories. He hoped that the presence of a guard on duty would scare off Smith. As a result of the fight with Smith, Cotto lost control of the truck. He applied his brakes, but the truck stopped only after it collided with a light pole and a fence. Cotto saw that Smith was lying on the ground by the pole. As far as Cotto knew, the guard at Abbott Laboratories, whose shack was 30 to 40 feet away, saw none of the accident. Eventually, the police arrived. To Cotto’s knowledge, he was the only surviving witness to the accident itself.

Plaintiff introduced no evidence in opposition to the summary judgment motion. However, he moved to strike Cotto’s deposition and affidavit, arguing that the Dead Man’s Act barred Cotto from testifying about the events involving Smith. Plaintiff argued that, even without occurrence testimony, the complaint and defendants’ admissions in their answer raised genuine issue of material fact. Specifically, the admitted fact that the collision occurred off the roadway raised a presumption that Cotto’s negligence caused the accident. Also, it must be presumed that Smith had been obeying the law and thus that defendants owed him a duty of due care.

Defendants conceded the Dead Man’s Act applied to Cotto’s testimony. However, they argued that, without evidence from the only occurrence witness, plaintiff could not prove any element of a cause of action for negligence. The mere fact of the accident did not create a presumption of negligence.

In a single order, the trial court struck Cotto’s testimony and granted defendants summary judgment. Plaintiff timely appealed. He argues, as he did at the trial level, that the pleadings themselves raise a genuine issue as to each element of a cause of action for negligence. Thus, he maintains, the case should proceed to trial.

Summary judgment is proper if and only if the pleadings, depositions, admissions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Although a plaintiff need not prove his case at this preliminary stage, he must present “facts sufficient to support the elements of his claim” (Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill. App. 3d 8, 12) or “some factual basis which would arguably entitle [him] to judgment” (Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1071). We hold that plaintiff did not fulfill this requirement.

To recover in a suit for negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421; Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 955.) “When a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendant’s negligence was a proximate cause of the plaintiff’s injuries.” (Emphasis added.) (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85; see also Gresham, 229 Ill. App. 3d at 955.) Liability must be premised on evidence and not on conjecture or speculation. (Lindenmier, 156 Ill. App. 3d at 85; Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619-20.) A defendant in a negligence suit is entitled to summary judgment if he can demonstrate that the plaintiff has failed to establish a factual basis for one of the required elements of a cause of action for negligence. Gresham, 229 Ill. App. 3d at 954-55.

Plaintiff acknowledges that he submitted no evidence in response to the motion for summary judgment. Nonetheless, he argues, he established a factual basis for his claim through a combination of (1) admissions of fact in the defendants’ answer and (2) presumptions that arise from these admitted facts. Specifically, plaintiff argues as follows.

Because defendants’ answer admitted that the accident took place off the roadway, this fact is established and need not be proved by evidence (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 610(b)). Under Calvetti v. Seipp (1967), 37 Ill. 2d 596, and Cruse v. Hines (1981), 92 Ill. App. 3d 884, the fact that the accident took place off the roadway raises a rebuttable presumption that Cotto’s negligence caused the accident. Thus, as defendants submitted no admissible evidence to the contrary, plaintiff may rely on the pleadings to raise genuine issues of material fact as to all the elements of a cause of action for negligence. Also, plaintiff placed in issue whether defendants owed Smith a duty, as there is a rebuttable presumption that, at the time of the accident, Smith was obeying the law. See Robinson v. Workman (1956), 9 Ill. 2d 420, 427.

We agree with plaintiff that the pleadings conclusively establish that the accident occurred off the roadway. We further agree that, as the court admitted none of defendants’ evidence in support of the summary judgment motion, plaintiff may rely on the pleadings to raise genuine issues of material fact. (See Cato v. Thompson (1980), 83 Ill. App. 3d 321, 323.) However, we do not accept plaintiff’s application of Calvetti and Cruse; therefore, we conclude that plaintiff has failed to supply an adequate factual basis for his complaint to withstand summary judgment. To explain our conclusion, we review the case law in some detail.

The supreme court’s decision in Calvetti arose not in the context of a grant of summary judgment, but rather after the trial court denied the plaintiff a judgment n.o.v. after a full trial. The appellate court reversed and held that the evidence required the conclusion that the defendant was negligent as a matter of law. The supreme court agreed.

The court reasoned as follows. The plaintiff was injured when her car struck the defendant’s car. The collision was caused by the defendant’s unexplained swerve into the wrong lane of traffic. Given such a gross irregularity in the defendant’s driving, the burden shifted to her to show she was not negligent. “The fact that [the defendant’s] car skidded in front of the one in which plaintiff was riding must be deemed to have arisen from some negligent act or omission, in the absence of explanation to the contrary.” Calvetti, 37 Ill. 2d at 598.

The Calvetti court was careful to note that the defendant had a full opportunity to adduce facts that would allow a conclusion that she was not negligent or that the collision was caused by something other than her negligence, yet she had completely failed to introduce such facts. It would be unfair to require the plaintiff to produce evidence of what caused the defendant’s car to skid into the wrong lane; such information was peculiarly within the knowledge of the defendant, who was able to testify about the circumstances leading to the accident. As she had not been able to introduce evidence sufficient to demonstrate her freedom from negligence, “[t]he car’s presence [in the wrong lane] under the circumstances shown leaves room for no inference other than that defendant *** caused the skidding through some *** form of negligence.” Calvetti, 37 Ill. 2d at 599.

In Cruse v. Hines (1981), 92 Ill. App. 3d 884, the appellate court applied the burden-shifting rule of Calvetti to a situation where the plaintiff’s decedent was killed when the defendant drove the car in which the two were riding off the roadway and into a guardrail. After a full trial at which defendant testified about the conditions leading to the accident, the jury returned a verdict for the defendant. The court denied the plaintiff’s motions for a new trial and for a judgment n.o.v.

The appellate court interpreted Calvetti to shift the burden to the defendant to prove that the accident was caused by something other than his own negligence. The appellate court noted that here, as in Calvetti, it was obvious that the defendant drove his car into “an area of the roadway where it should not have been.” (Cruse, 92 Ill. App. 3d at 890.) As did the supreme court in Calvetti, the appellate court in Cruse noted that any facts regarding the cause of the accident would be within the peculiar knowledge of the defendant; the only other possible occurrence witness was dead. The car’s presence in an improper area raised an “inference” that the accident was caused by the defendant’s negligence. Cruse, 92 Ill. App. 3d at 890.

As in Calvetti, the court noted that the defendant was able to testify to the circumstances of the accident and that he had failed to offer any innocent explanation for his violation of the rules of the road. The court stressed that the burden shift was in part a matter of fairness: the plaintiff (here the executor of the estate of the person who was killed in the accident) had no way of knowing directly what caused the accident, while the defendant, who had a full opportunity to testify on this score, was the only party who could explain his irregular driving. The appellate court found no error in the trial court’s refusal to order a judgment n.o.v. because there was still a factual question as to whether the passenger’s alleged contributory negligence (in falling asleep before the crash) barred the plaintiff’s recovery. Due to error in the giving of instructions and certain evidentiary rulings, the case was reversed and remanded.

The most recent application of Calvetti and Cruse — and the one involving facts most similar to those at bar — is the ruling of the Appellate Court, Fifth District in Reid v. Sledge (1992), 224 Ill. App. 3d 817. Reid applied the two cases we have discussed to a wrongful death suit in which the Dead Man’s Act barred the defendant from testifying about the causes of the accident that killed the plaintiff’s decedent. Were we to accept the reasoning of Reid in its entirety, we might agree with plaintiff here that summary judgment was improper. However, we do not believe that Reid properly applies Calvetti or Cruse.

In Reid, the plaintiff’s decedent was a passenger in an automobile that the defendant drove off the road, down an embankment, and into a tree. Unlike the defendants in Calvetti and Cruse, the defendant was barred by the Dead Man’s Act from testifying about the circumstances of the crash. Because the defendant could not testify about the accident itself, the trial court allowed two defense witnesses to testify to the defendant’s careful driving habits. The jury found for the defendant. The appellate court affirmed, holding that the verdict was not against the manifest weight of the evidence.

The Reid court held that, under Calvetti and Cruse, the circumstances of the accident gave rise to an “inference” that the accident was caused by the defendant’s negligence. (Reid, 224 Ill. App. 3d at 819.) Furthermore, Reid held that, under Cruse, the defendant had the burden to produce evidence to rebut this “inference”; once the defendant put on evidence that the accident was caused by something other than the defendant’s negligence, liability became a question for the jury to decide. (Reid, 224 Ill. App. 3d at 819-20.) We note that although Reid uses the term “inference,” the opinion’s reference to burden shifting and the need for the defendant to put on evidence to create a jury question is more in line with the discussion of a rebut-table presumption, as we explain later in this opinion.

Reid held that, because the Dead Man’s Act barred the defendant from testifying directly about the accident, fairness required that he be able to introduce evidence of his careful driving habits; in this way, the defendant would have the opportunity to rebut the “inference” that the accident was the result of his negligence. Reid, 224 Ill. App. 3d at 819-20.

We now consider Reid in light of Calvetti and Cruse. We conclude that insofar as Calvetti and Cruse create a presumption or inference of negligence, Reid improperly extends that rule of evidence to a situation where the assumptions underlying the rule do not apply.

Initially, we shall try to clear away some potentially misleading terminological underbrush. Plaintiff asserts that Calvetti and Cruse hold that the fact that a driver left the roadway (or entered the wrong lane of traffic), resulting in an accident, raises a “rebuttable presumption” that the accident was caused by the driver’s negligence. Our review of Calvetti and Cruse persuades us that these cases establish no such rebuttable presumption. Rather, they stand only for the proposition that, under the procedural and substantive facts of each case, the fact finder was required to draw an inference that the driver’s negligence caused the accident.

A presumption is a rule of law requiring the existence of a fact to be taken as established when certain other facts are established, unless and until a certain specified condition is fulfilled. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §302.1, at 81 (5th ed. 1990) (Cleary & Graham).) In Illinois, a presumption of fact (also known as a “rebuttable presumption”) is not evidence. However, it establishes a prima facie case as to the issue involved and shifts the burden of producing evidence but not the ultimate burden of persuasion. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 460-64.) A presumption ceases to operate once there is enough evidence to support a finding of the nonexistence of the presumed fact. (Dean, 95 Ill. 2d at 462-63; Barnes v. Brown (1990), 193 Ill. App. 3d 604, 611.) There is no uniform test of how much evidence is necessary to rebut a presumption. Dean, 95 Ill. 2d at 463.

An inference is a conclusion of fact that the jury may in its discretion draw from established facts. However, only under compelling factual circumstances must the fact finder draw a particular inference. Cleary & Graham §302.2, at 83-86.

We believe that, read in their factual contexts, Calvetti and Cruse hold that the evidence must reach a certain threshold of conclusiveness before a fact finder is either required or permitted to draw an inference from the evidence. See Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619-20 (interpreting Cruse as illustrating the rule that a fact may be inferred from circumstantial evidence only where the circumstances are such that the fact is the only inference that can be drawn and is not a product of speculation or conjecture).

In both Calvetti and Cruse, the compelling factual circumstances were (1) the occurrence of the accident (and resultant injury) in a location that, in the absence of an innocent explanation, implies that the defendant was negligent; (2) the fact that any further evidence of the cause of the accident, including evidence that the accident was not the result of the defendant’s negligence, was solely within the defendant’s power to supply; and (3) the defendant’s failure — despite a full opportunity to supply such evidence — to testify to any facts that would allow the fact finder to conclude that the accident was not caused by the defendant’s negligence.

As we have noted, it was crucial in both the Calvetti court and the Cruse case that the defendant testified as to the circumstances of the accident. In neither case did the Dead Man’s Act prevent the defendant from explaining the facts leading up to the accident. Each defendant had a full opportunity to do so, but simply failed to introduce evidence that the accident was the result of something other than the defendant’s negligence.

However, the situation in Reid — and in the case at bar — is materially different because of the operation of the Dead Man’s Act. Assuming that Calvetti and Cruse create a rebuttable presumption of a cause of action for negligence, that presumption is grounded in crucial part on the defendant’s opportunity (and the defendant’s failure) to supply an alternate explanation of the accident by testifying directly to the circumstances themselves. We believe it would be unfair to extend any such evidentiary rule to a case where the Dead Man’s Act prevents the defendant from providing such rebuttal testimony. In effect, to combine the Cruse “presumption” with the Dead Man’s Act would saddle the defendant with a duty to speak while simultaneously requiring him to remain silent.

Under the Dead Man’s Act, a plaintiff representing the estate of a person killed in an accident may prevent the driver-defendant from testifying on his own behalf “to any conversation with the deceased *** or to any event which took place in the presence of the deceased.” (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 201.) No exception to the Dead Man’s Act applies here, and we agree with the parties that the trial court properly excluded Cotto’s affidavit and deposition testimony. The parties also do not dispute that Cotto was the only person who could testify directly as to the circumstances that led to the accident. As a result of the exclusion of Cotto’s testimony, the defendants were legally unable to introduce any direct evidence to support an innocent explanation of the accident.

Under these circumstances, we believe that the holdings of Calvetti and Cruse cannot be imposed mechanically on the factual situations in Reid or in the case sub judice. As we have noted, crucial to Calvetti and Cruse was not only the fact that the accident occurred under circumstances normally suggestive of negligence, but also that an evidentiary inequality existed between the parties, i.e., only the defendant could testify to the circumstances leading up to the accident. In a case such as Reid or the one at bar, the Dead Man’s Act seals the defendant’s lips. Where the Dead Man’s Act applies, neither party is able to testify to the circumstances of the accident.

The assumption underlying Cruse — that it is fair to require a non-negligent defendant to explain the occurrence of an accident that appears to have resulted from his negligence — does not apply where the defendant is effectively barred from explaining the accident at all, as in Reid or in this case. The Reid court appeared to recognize the conundrum created by the concurrent application of Cruse and the Dead Man’s Act when it held that evidence of the defendant’s safe driving habits was admissible “to give [the defendant] some chance of rebutting the inference of negligence.” (Emphasis added.) (Reid, 224 Ill. App. 3d at 820.) We depart from Reid in that we believe that a more just and accurate reading of Calvetti and Cruse is that any inference of negligence does not apply where the defendant is deprived of an opportunity to contest the inference of negligence by the conventional means emphasized in those earlier opinions.

With this conclusion in mind, we hold that summary judgment was properly granted defendants. With no occurrence evidence and no other factual basis to sustain his complaint, plaintiff will be unable, to establish the elements of a cause of action in negligence. The fact finder may not infer negligence from the mere accident itself. (Waite, 157 Ill. App. 3d at 620.) Any recovery would necessarily be based on speculation or conjecture, which is insufficient. Plaintiff failed to establish a factual basis for his claim, and he has in effect conceded he will be unable to prove the elements of that claim. Therefore, defendants are entitled to judgment as a matter of law.

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

Affirmed.

UNVERZAGT and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MAAG

license: Public Domain

text:
    THE PEOPLE ex rel. ANITA HARRIS, Treasurer and ex officio Collector of Taxes for Jasper County, Plaintiff-Appellant, v. PARRISH OIL PRODUCTION, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—92—0021
    Opinion filed August 5, 1993.
    Rehearing denied September 14, 1993.
    Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of Mt. Vernon, Special Prosecutor, for appellant.

      Patrick L. Duke, of Flora, for appellees.
   JUSTICE MAAG

delivered the opinion of the court:

Plaintiff, the collector of taxes for Jasper County (tax collector), appeals from a judgment of the circuit court of Jasper County, which held the Illinois Department of Revenue Regulation Section 4 (Illinois Property Tax Manual (Mar. 1980), §IV, at 40) unconstitutional and vacated the tax sales performed pursuant to the regulation. The only issue raised on appeal is whether the circuit court erred in finding the regulation unconstitutional.

The defendants, Parrish Oil Production, Inc. (Parrish), and St. Pierre Oil Company (St. Pierre), are the operators of numerous gas and oil wells in Jasper County. Parrish and St. Pierre are tenants in common with various individuals. Each tenant in common owns a fractional undivided portion of the working interest of each well. There are more than 30 shareholders in each well with some of the fractional shares being as small as .0058399 of the seven-eighths working interest.

Parrish and St. Pierre completed and filed with the tax collector real-property tax returns for oil producers. Attached to each return was a computer-generated list naming all fractional-interest holders, the addresses of the interest holders, and their ownership interest in each well.

Notwithstanding the information provided and contained in tax returns, the tax collector billed Parrish and St. Pierre as the operators of the wells for the property tax on the entire seven-eighths working interest rather than just the fractional undivided share that each owned. This billing was performed pursuant to the requirements of the regulation, but Parrish and St. Pierre paid only the amount attributable to their individual fractional ownership interests. Parrish and St. Pierre refused to pay the property tax on the portions of the working interest in which they had no ownership interest. There is some dispute whether the other fractional owners of the working interest of each lease attempted to pay the property tax on their individual percentages, but in any event, the tax collector did not credit their tax payments.

On September 26, 1990, the tax collector gave notice that an application for judgment and order of sale for delinquent taxes would be made on October 16, 1990, for the entire working interest of the oil- and gas-well leases. Parrish and St. Pierre filed objections on October 9, 1990, to the application for judgment, and a hearing was held on September 13, 1991.

The sole issue considered during the hearing was whether the entire working interest could be sold to satisfy the delinquent unpaid tax obligations. Despite the pending tax objections filed by Parrish and St. Pierre in October 1990, the tax collector sold the entire working interest in each gas- and oil-well lease at a tax sale to satisfy 100% of the property tax due from the entire working interest.

On December 20, 1991, the circuit court sustained the objections filed by Parrish and St. Pierre, declared the regulation unconstitutional, and voided any and all tax sales of defendants’ oil- and gas-well leases performed pursuant to the regulation. Although the trial court found the regulatory scheme to be the most efficient means of collecting the real-property tax on the mineral interests in the land and noted that it had been informally and unofficially approved by the Illinois Attorney General, the trial court concluded that the regulation was inconsistent with and violative of the laws of the State of Illinois and the Constitution of the United States. Pursuant to the tax collector’s petition, a stay of enforcement of the circuit court’s judgment was granted pending this appeal.

On appeal the tax collector argues that the trial court erred in finding the regulation unconstitutional and further argues that Parrish and St. Pierre lacked standing or alternatively should have been estopped from offering any objection, since defendants failed to pay under protest the taxes assessed against them. Defendants assert that the tax collector waived the requirement of payment under protest when it failed to raise the issue at trial. Parrish and St. Pierre also argue that the regulation in question is unconstitutional under the due process and equal protection guarantees of the Federal and Illinois constitutions. We agree. Long ago our founding fathers determined that there should be no taxation without representation, and today we decide that there should be no taxation without notification.

Under a mining lease, the minerals belong to the lessor, who is usually the owner of the surface estate, and the lessee has the right to explore and remove the minerals, upon which the lessor has the reserved royalty or rent. (Murbarger v. Franklin (1960), 18 Ill. 2d 344, 347-48, 163 N.E.2d 818, 821.) The term “working interest,” as used in connection with an oil and gas lease, refers to that portion of the oil and gas that may be produced from the premises after the royalty is paid to the lessor. (Bates v. Mansfield (1991), 212 Ill. App. 3d 69, 73, 570 N.E.2d 549, 551.) Hence a “seven-eighths working interest” refers to the fact that the lessor is paid one-eighth of the value of the oil and gas produced as rent or royalty and the remaining seven-eighths is paid to the owners of the working interest. Pursuant to the Oil and Gas Lien Act of 1989, an operator is “a person who is responsible for or assumes the daily supervision and management for operating a leasehold and may be a co-owner of a leasehold interest.” Ill. Rev. Stat. 1989, ch. 82, par. 501(8).

The powers granted to the Illinois Department of Revenue are found in section 130 of the Revenue Act of 1939 (Revenue Act) (Ill. Rev. Stat. 1989, ch. 120, par. 611 et seq.). More specifically, “[t]he Department shall *** (3) [prescribe general rules and regulations, not inconsistent with law, for local assessment officers relative to the assessment of property for taxation.” Ill. Rev. Stat. 1989, ch. 120, par. 611(3).

The Department of Revenue’s regulation at issue provides in pertinent part:

“The following regulation shall be observed in listing oil for assessment in Illinois: *** (2) Where the working interest is owned by more than one person, the entire interest "will be assessed to the operator, who can divide the tax bill as he would any other operating expense.” Illinois Property Tax Manual (Mar. 1980), §IV, at 40.

This regulation requires that the entire tax levied and assessed against the working interest in an oil or gas leasehold estate be billed to the operator instead of the individual owners of the working interest. The assessment and billing are made in the name of the operator who is obligated for the payment of the entire bill and not just that portion actually owned, if any, by the operator. As an alternative to this regulation, Parrish and St. Pierre propose individual notice and billing to each of the working interest owners.

The guarantee of due process of law extends to every governmental proceeding which may interfere with personal or property rights, whether the process be legislative, judicial, administrative, or executive. Pure Oil Co. v. City of Northlake (1956), 10 Ill. 2d 241, 140 N.E.2d 289; People v. Scott (1927), 326 Ill. 327, 157 N.E. 247.

The proposition that a person shall not be deprived of life, liberty, or property without due process of law is as old as any principle of civilized government and is found in the Magna Charta and in substance, if not in form, in nearly all constitutions adopted by the several States. (Munn v. Illinois (1877), 94 U.S. 113, 24 L. Ed. 77.) The due process provisions of the Illinois Constitution and the fourteenth amendment to the Federal Constitution have been construed to be similar in both scope and purpose (Barnett v. County of Cook (1944), 388 Ill. 251, 57 N.E.2d 873; see Ill. Const. 1970, art. I, §2; Ill. Ann. Stat., 1970 Const., art. I, §2, Constitutional Commentary, at 109 (Smith-Hurd 1971)), although not identical. For purposes of our discussion of the issues in this case, we need not address the differences, since our decision is the same under both provisions. Accordingly, we will address them together.

The United States Supreme Court has emphasized that due process of law, at a minimum, prohibits the deprivation of property without providing notice and an opportunity for a hearing appropriate to the nature of the case. (Memphis Light, Gas & Water Division v. Craft (1978), 436 U.S. 1, 56 L. Ed. 2d 30, 98 S. Ct. 1554; Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652.) The timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729.

The procedural safeguards mandated by due process in a particular case vary, depending upon,

“[fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.

It is well established that, in construing a statute or regulation, there is a presumption of constitutionality, and where possible, statutes and regulations will be interpreted to avoid a finding of constitutional infirmity. (People v. Geever (1988), 122 Ill. 2d 313, 324, 522 N.E.2d 1200; People v. Roos (1987), 118 Ill. 2d 203, 210, 514 N.E.2d 993, 996.) Our evaluation of the regulation must focus upon whether it is constitutional to allow the taking of property (an undivided interest in an oil and gas lease) by delinquent-tax sale, without any notification being sent to the individual owners of the undivided interest.

In considering the first factor identified in Mathews, the significance of the private interest affected, we are guided by the principle that the due process clause shields private property rights from legislative aggression which impairs or extinguishes those rights without satisfying basic safeguards, such as notice and an opportunity to be heard. (Board of Education of Normal School District v. Blodgett (1895), 155 Ill. 441, 450, 40 N.E. 1025, 1028; Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.) The same is true of regulations which similarly impair these rights.

Property interests are defined by State law (Yu v. Clayton (1986), 147 Ill. App. 3d 350, 358, 497 N.E.2d 1278, 1284, citing Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 538, 84 L. Ed. 2d 494, 501, 105 S. Ct. 1487, 1491), and it has been uniformly held by Illinois courts that an oil and gas lease of indefinite duration creates a freehold. (Updike v. Smith (1942), 378 Ill. 600, 39 N.E.2d 325.) The owners of the working interest obviously have a property interest, yet the regulation itself contains insufficient procedural safeguards to ensure that the owner has adequate notice and opportunity for a hearing prior to being deprived of property pursuant to a delinquent-tax sale.

The next factor to be considered under Mathews is the risk of an erroneous deprivation. The regulation, besides lacking adequate procedural safeguards, is self-perpetuating and difficult if not impossible to challenge. Pursuant to statute, the owner of the right to produce oil and gas under an oil and gas lease has a separate estate which can be taxed separately (Ill. Rev. Stat. 1989, ch. 961/2, par. 157), but under the regulation, the operators of the wells receive the tax bill for the entire working interest. Because owners do not receive tax bills, they cannot review the taxes assessed and cannot challenge the validity of the taxes assessed. If the operator, who may or may not have an ownership interest in the working interest, fails or refuses to pay the taxes due on the entire working interest, the property may be sold for delinquent taxes. The owners may never be notified of their tax liability.

Further, sections 194 and 235 of the Revenue Act (Ill. Rev. Stat. 1989, ch. 120, pars. 675, 716) require that the person seeking to object to the taxes assessed must pay his entire tax bill under protest before an objection to the real estate taxes may be brought. This requirement becomes an impossible task for owners who by virtue of the regulation receive no tax-bill notice.

In the case before us, plaintiff argues that defendants have failed to comply with sections 194 and 235 of the Revenue Act and should have been barred from offering any objection to the regulation. There has never been any dispute that Parrish and St. Pierre paid 100% of the taxes assessed against their respective portions of the working interest. We believe that the defendants satisfied sections 194 and 235 of the Revenue Act when they paid their proportionate share of the taxes assessed.

The tax collector argues that there is no due process notice violation or in the alternative that Parrish and St. Pierre have no standing to raise any due process violation. Rather, the defendants are alleged to be the agents of the owners, and as an operator, responsible for the daily supervision and management of the oil and gas leasehold. (Ill. Rev. Stat. 1989, ch. 82, par. 501(8).) It is claimed that notice to the operator alone is sufficient. The tax collector reasons that if the operator is the agent of the owners, the tax notice pursuant to the regulation is proper.

It is argued in the alternative that if the operator is not the agent of the owners, then Parrish and St. Pierre as operators have no standing to raise the due process rights of the owners. The general proposition that a person does not have standing to challenge the constitutionality of a statute, unless he is directly affected and is within the class aggrieved by the alleged unconstitutionality (People v. Wagner (1982), 89 Ill. 2d 308, 311, 433 N.E.2d 267, 269), is argued in support of this position.

We find these arguments to be without merit. While it is true that notice to the agent is notice to the principal (Wollenberger v. Hoover (1931), 346 Ill. 511, 179 N.E. 42), there is no presumption of agency. (Louisiana Farm Supply Co. v. Carroll (1965), 56 Ill. App. 2d 175, 205 N.E.2d 478.) Agency must be proved or inferred from facts proved. (Sievert v. Illinois Furniture Co. (1913), 178 Ill. App. 574.) The burden of proving agency is on the person who asserts it. (Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 485 N.E.2d 1281.) Plaintiff failed to address or meet this burden. Even if an agency relationship is inferred, there is absolutely nothing in the record to support a finding that the owners of the working interest gave the defendants the power to pay or protest their taxes. Agency is a consensual, fiduciary (Gunther v. Commonwealth Edison Co. (1984), 126 Ill. App. 3d 595, 467 N.E.2d 1104), and voluntary relationship that cannot exist without the consent of both the principal and the agent (Stone v. Stone (1950), 407 Ill. 66, 94 N.E.2d 855), and the extent of the agency cannot be assumed because of convenience. (Halladay v. Underwood (1900), 90 Ill. App. 130.) Simply stated, there is nothing before us to show that the scope of the supposed agency is as broad as the tax collector claims.

Next, in addressing plaintiff’s assertion that defendants as operators lack standing to challenge the constitutionality of the regulation, it must be remembered that both defendants in addition to being operators are also owners in the working interests at issue. As owners of a fractional share of the working interest, they are members of the class aggrieved by the regulation.

We consider now the third Mathews factor: the government’s interest. The fiscal and administrative burdens of a different procedure must be compared to the importance of the rights affected by the present regulatory scheme.

While the plaintiff’s interest in maintaining an efficient tax scheme to ensure the continued financial support of governmental offices, programs, and services is of major importance, the plaintiff is not prohibited from assessing and collecting taxes. The proposed alternative, individual notice to all holders of a working interest, would be more burdensome. It cannot be denied that placing the burden on the plaintiff to send out individual tax notices to the individual owners of the working interest of oil and gas leases may entail greater fiscal and administrative costs. However, these burdens do not outweigh an individual’s guarantee of due process under the law. This is especially true in view of the fact that all necessary information regarding the individual owners of the working interests of oil and gas leases is supplied to plaintiff by the operators on a real-property tax return for oil producers.

We are mindful that the present regulatory scheme is easy, convenient, and relatively simple to administer. We also recognize that individual notification to fractional-interest holders would be more burdensome and expensive. But mere inconvenience and incidental expenses in giving notice cannot be allowed to negate the due process rights of these fractional-interest holders. Procedural due process guarantees require a method that is calculated to provide notice to those persons affected, and regulatory simplicity will not be allowed to abridge those rights. Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657.

In its reply brief, the tax collector argues that individual notice to all interest holders would serve no purpose. The collector points out that where property is held by varying interests, it is the property as a whole which is to be assessed, not the value of the respective individual interests. (In re Application of Korzen (1978), 63 Ill. App. 3d 835, 380 N.E.2d 852.) Therefore, even with individual notice, if one owner of the working interest failed to pay his taxes, the entire interest could still be sold. Ill. Rev. Stat. 1991, ch. 120, par. 508(a).

The tax collector did not raise this issue in its opening brief. Therefore, it is waived. (Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)); Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758.) Nevertheless, addressing the merits of the argument, we are unpersuaded. The risk of nonpayment is substantially greater if the individual owners receive no personal notice than if they do. While a failure to pay by one individual may result in foreclosure, this failure to pay is nothing more than a possibility. Without notice, the failure to pay becomes a likelihood in our opinion.

The notification procedure advanced by Parrish and St. Pierre may well enhance the collection of taxes, reduce the tax foreclosures, and result in additional revenue, thereby fiscally enhancing the government’s tax coffers. It is possible that the added expense of individual notice would be offset by added revenue. It is hard to pay a bill you never receive.

Lastly, Parrish and St. Pierre argue that the regulation deprives working-interest owners of oil and gas leases of the benefit of equal protection under the law. Defendants assert that royalty-interest holders, unlike the working-interest owners, receive a separate assessment for their interests and each owner of a royalty interest may elect to pay or not pay the tax, resulting in the sale of their separate interest if they fail or refuse to pay.

The tax collector merely responds that there is a rational basis for treating the two ownership interests differently for tax purposes. It is claimed that the nature of royalty and working interests are so different that different classifications are warranted because the royalty interest is often held by the owner of the surface estate. We find plaintiff’s argument unpersuasive. The equal protection clauses of the fourteenth amendment and the Illinois Constitution (Ill. Const. 1970, art. I, §2) forbid unequal government action that arbitrarily discriminates against some and favors others in like circumstances. Ashcraft v. Board of Education of Danville Community Consolidated School District No. 118 (1980), 83 Ill. App. 3d 938, 942, 404 N.E.2d 983, 986.

The equal protection guarantee is applicable to the exercise of the power of taxation. (City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543.) While the equal protection clause imposes no “iron rule” of equal taxation (Department of Revenue v. Warren Petroleum Corp. (1954), 2 Ill. 2d 483, 489-90, 119 N.E.2d 215, 220), it does require that a classification for purposes of taxation be based on a real and substantial difference having a rational relation to the subject of the particular legislation. Searle Pharmaceuticals, Inc. v. Department of Revenue (1987), 117 Ill. 2d 454, 468, 512 N.E.2d 1240, 1246.

We see no real and substantial difference between the individual owners of the undivided working interest and the individual owners of the royalty interest to justify the regulation’s mandate of disparate notification practices. It is clear that holders of a royalty interest may be just as numerous as holders of a working interest. Each has a protectable property interest entitled to equal protection guarantees. Each stands to lose that property interest in the absence of adequate notification and opportunity for hearing.

The regulation is facially invalid as applied to these facts and deprives the owners of the undivided working interest of oil and gas leases of their property without due process and equal protection of law.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


author: JUSTICE LEWIS

text:
    TERRY W. GASKILL, Plaintiff-Appellee, v. ROBERT E. SANDERS DISPOSAL HAULING et al., Defendants (R. Anthony Marrese, Claimant-Appellant).
    Fifth District
    No. 5—92—0844
    Opinion filed August 25, 1993.

      R. Anthony Marrese, of Edwardsville, appellant pro se.

    Robert D. Larson, of Alton, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The issue on this appeal is whether the Physicians Lien Act (Act) (770 ILCS 80/0.01 et seq. (West 1992)) allows for the recovery of interest on the unpaid balance of rendered physician services. We hold that it does not.

Section 1 of the Act provides:

“Every licensed physician practicing in this State who renders services by way of treatment to injured persons, except services rendered under the provisions of the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, shall have a lien upon all claims and causes of action for the amount of his reasonable charges up to the date of payment of such damages.
Provided, however, that the total amount of all liens hereunder shall not exceed Vs of the sum paid or due to the injured person on the claim or right of action, and provided further, that the lien shall in addition include a notice in writing containing the name and address of the injured person, the date of the injury, the name and address of the licensed physician practicing in this State, and the name of the party alleged to be liable to make compensation to such injured person for the injuries received, which notice shall be served on both the injured person and the party against whom such claim or right of action exists.
Notwithstanding any other provision of this Act, payment in good faith to any person other than the physician claiming or asserting such lien prior to the service of such notice of lien shall, to the extent of the payment so made, bar or prevent the creation of an enforceable lien.
Service shall be made by registered or certified mail or in person.” 770 ILCS 80/1 (West 1992).

On May 7, 1992, a jury in the circuit court of Madison County returned a $149,222.25 verdict for plaintiff and against defendants. The trial court entered judgment on the verdict.

On June 4, 1992, plaintiff filed a petition to adjudicate the liens of the Department of Public Aid, Wood River Township Hospital, Dr. Bud Chomhirum, and Dr. R. Anthony Marrese.

On July 22, 1992, the defendants deposited $53,679.30 with the court. Of this amount, $50,000 was the insurance policy limits, and the remainder represented interest and costs.

On August 31, 1992, plaintiffs counsel represented that the lien of the Department of Public Aid, in excess of $29,000, had been compromised and settled for $12,000.

On September 1, 1992, Marrese filed a motion for “the court to approve payment of medical fees plus applicable charges for medical services rendered to Terry W. Gaskill.” The motion alleged that plaintiff had agreed to pay, from the proceeds of any recovery, Marrese’s medical charges and “a service charge” at a rate of 18% per year on the unpaid balance. The motion further alleged that total medical charges were $9,467 and the then-current balance, including “interest,” was $18,354.65. Marrese contended that the court was holding $53,679.30, one-third of which, or $17,893.10, would be plaintiff’s attorneys’ share. After expenses of the suit were deducted, $34,903.70 would remain. $17,451.85 each would remain for the two classes of lien holders, physician and hospital.

The following was attached to the motion:

“AUTHORIZATION AND AGREEMENT TO PAY PHYSICIAN
I, Terry W. Gaskill, do hereby authorize and direct my attorney *** to promptly pay to R. Anthony Marrese, M.D., from my portion of the proceeds of any recovery resulting from injuries sustained in an occurrence on or about March 25. 19 86, the unpaid balance of any reasonable charges for professional services rendered together with interest at the rate of eighteen percent assessed upon any such unpaid balance for said services rendered on my behalf by the said Physician and/or his associates. Said payment is authorized and directed for treatment without regard to whether the said treatment has been rendered or will be rendered hereafter. I do further authorize and direct that additional payment be made from the said proceeds for any and all reasonable unpaid charges for medical reports, consultations, depositions, court appearances, and all other services provided on my behalf by the said Physician and/or his associates.
I do understand and agree that this document and the contents hereof do not in any way relieve me of my personal responsibility for payment of all bills and carrying charges for services provided. I do further understand and agree that in the event that no recovery is received or in the event that any recovery is insufficient to satisfy any unpaid charges, I will immediately satisfy the said unpaid amounts in full.
I further direct said Physician to furnish said Attorney with any and all reports or records requested.
Dated: 5M23-86
Isl Terry W. Gaskill
Patient”

On November 20, 1992, the court found that the interest charges claimed by Marrese are not included or protected by the Physicians Lien Act. The court ordered that $9,467 be paid to Marrese. The court also allocated attorney fees, costs, and the remaining liens.

On appeal, Marrese contends, as he did in the trial court, that he is entitled to interest.

A lien is recognized to be a charge upon property, either real or personal, for the payment or discharge of a particular debt or duty in priority to the general debts or duties of the owner; an encumbrance upon property as security for the payment of a debt; or a hold or claim on another’s property as security for the payment or performance of a debt, duty, or other obligation. (51 Am. Jur. 2d Liens §1 (1970).) Common law liens are dependent on possession (51 Am. Jur. 2d Liens §§1, 21 (1970)). The physician’s lien is not dependent on possession. A common law or other possessory lien is merely the right to retain possession of certain property until the debt or claim secured thereby is satisfied. (53 C.J.S. Liens §§2, 30 (1987).) The physician’s lien is not dependent on possession by the doctor; therefore, it cannot be considered a common law lien. A lien created by statute is limited in operation and extent by the terms of the statute. (51 Am. Jur. 2d Liens §38 (1970).) Also, the Physicians Lien Act is not dependent upon common law contract theory. (See In re Estate of Enloe (1982), 109 Ill. App. 3d 1089, 1090-91, 441 N.E.2d 868, 870.) A lien is a right, which the law gives, to have a debt satisfied out of a particular thing and affords a supplemental and additional remedy for the collection of debt. (51 Am. Jur. 2d Liens §2 (1970).) If no lien exists, a fund may be dissipated before a creditor is able to prove his right to recover. (51 Am. Jur. 2d Liens §6 (1970).) On the other hand, a hospital, for example, which perfects its lien becomes a secured créditor under the laws of the State of Illinois. (See Filker v. Honda Motor Co. (1980), 87 Ill. App. 3d 865, 866, 409 N.E.2d 495, 496.) A discharge in bankruptcy, being personal to the bankrupt, does not act as a release of liens or security interests in property owed to him. (Filker, 87 Ill. App. 3d at 867, 409 N.E.2d at 496.) Therefore, there may be an advantage to proceeding under the Physicians Lien Act rather than on a contract action.

The legislature has the power, subject to constitutional limitations, to provide for liens to secure the payment of debts and other obligations, and legislative authority exists to create by statute a right of lien where no such right existed at common law. (51 Am. Jur. 2d Liens §36 (1970).) Lien laws are liberally construed to effect the purpose intended by the legislature. (51 Am. Jur. 2d Liens §11 (1970).) In the case of a hospital lien, statutes, which provide for “reasonable” charges for “hospital” services, are confined to charges relating to the injuries to the patient resulting from the conduct of the tortfeasor against the recovery from whom the hospital’s lien is asserted. (J. Rydstrom, Annotation, Construction, Operation, and Effect Of Statute Giving Hospital Lien Against Recovery From Tortfeasor Causing Patient’s Injuries, 25 A.L.R.3d 858, 877-79 (1969).) We hold that “reasonable charges” in the Physicians Lien Act are confined to charges relating to injuries to the patient resulting from the conduct of the tortfeasor from whom comes the recovery against which the doctor’s lien is asserted; “reasonable charges” do not include interest on an unpaid balance.

Relying on In re Marriage of Olbrecht (1992), 232 Ill. App. 3d 358, 597 N.E.2d 635, Marrese argues that the appellate court upheld the trial court’s finding that an attorney’s contract with the client “did not provide for interest in excess of the legal limit, but rather for a late payment fee of 1% a month on outstanding balances.” (Olbrecht, 232 Ill. App. 3d at 366, 597 N.E.2d at 641.) In Olbrecht, the husband was ordered to pay $6,000 of his wife’s attorney fees. On appeal, the husband argued that the wife’s contract with her attorney was void because it provided for interest in excess of the legally allowed interest rate. The trial court found that the contract provided for a late charge rather than interest. The appellate court noted that the wife was never assessed a late charge. In Olbrecht, the wife was proceeding on the basis of a contract with her attorney. The Attorneys Lien Act, which does not provide for interest, was not involved. (See 770 ILCS 5/1 (West 1992).) Therefore, Olbrecht does not provide support for Marrese in this cause. '

The General Assembly has enacted acts similar to the Physicians Lien Act, and none of them specifically provide for interest on an unpaid balance: the Clinical Psychologists Lien Act (770 ILCS 10/0.01 et seq. (West 1992)); the Dentists Lien Act (770 ILCS 20/ 0.01 et seq. (West 1992)); the Home Health Agency Lien Act (770 ILCS 25/1 et seq. (West 1992)); and the Hospital Lien Act (770 ILCS 35/0.01 et seq. (West 1992)). In contrast to the foregoing acts, the Mechanics Lien Act (770 ILCS 60/0.01 et seq. (West 1992)) provides for “interest at the rate of 10% per annum from the date [payment] is due.” (770 ILCS 60/1 (West 1992); see also Plepel v. Nied (1982), 106 Ill. App. 3d 282, 290, 435 N.E.2d 1169, 1175.) In construing a statute, the court is obligated to ascertain and give effect to the intent of the legislature, and generally, the language of the statute itself is the best indicator of that intent. (People v. Harrison (1992), 225 Ill. App. 3d 1018, 1024, 588 N.E.2d 1256, 1259-60.) It is not the province of the courts to inject provisions not found in a statute. (In re Objection of Cook (1984), 122 Ill. App. 3d 1068, 1072, 462 N.E.2d 557, 561.) If the legislature had intended to allow recovery of “interest” or “service charges” on a patient’s unpaid balance pursuant to the Physicians Lien Act, it certainly could have done so. See Harrison, 225 Ill. App. 3d at 1025, 588 N.E.2d at 1260.

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

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LATEEF HOBBS, Defendant-Appellant.
    Fifth District
    No. 5—92—0163
    Opinion filed August 27, 1993.
    Ted E. Barylske, of Alton, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Lateef Hobbs, appeals from his conviction and sentence on the offense of second-degree murder based on the shooting death of Alfred “Tanky” Talbert. Following a jury trial held September 25 through October 2, 1990, defendant was sentenced by the circuit court of Madison Cotrnty to serve 12 years in the Department of Corrections. He argues on appeal that the jury was confused by certain erroneous instructions, rendering its verdict unreliable; that the trial court erred in refusing his tendered instruction on involuntary manslaughter; that he was denied a fair trial by the prosecutor’s comments during closing argument; and that his sentence is excessive and based on improper factors.

Defendant was charged by information filed January 23, 1990, with two counts of the first-degree murder of Alfred C. Talbert, two counts of armed violence predicated on the first-degree murder of Alfred C. Talbert, and one count of home invasion against Sheila L. Talbert and Alfred C. Talbert. Defendant’s defense at trial was that he acted in self-defense or under extreme provocation by the victim. At defendant’s trial, the jury was instructed on the offenses of first-degree murder, second-degree murder based on unreasonable self-defense and extreme provocation, armed violence predicated on first-degree murder, and home invasion. Defendant’s tendered instruction on involuntary manslaughter was refused by the trial court.

The jury returned verdicts of guilty of second-degree murder and guilty of armed violence predicated on first-degree murder. Defendant was found not guilty of home invasion. The conviction for armed violence predicated on first-degree murder was subsequently vacated by the trial court. Defendant’s post-trial motions and his motion to reconsider his sentence were otherwise denied.

The evidence adduced at trial reveals the following. Shortly after midnight on January 21, 1990, defendant was present with friends at a tavern when the victim came in and announced a party at the home of his cousin, Sheila Talbert. Several of the tavern patrons, including defendant and his friend, Shalom Colen, went to the party. At one point during the party Sheila Talbert asked the guests for money so that she could purchase more liquor. After returning with the liquor, Sheila became involved in an argument with one of the guests who had not contributed money for the liquor but was attempting to consume some of it. This argument escalated into a physical fight between the guest, Sheila, and Sheila’s sister, Suzanne. At this point, Sheila announced that the party was over and asked her cousin, Robert “Sonny” Holmes, to remove the guests.

Holmes became involved in a fight with several of the guests. While several guests were fighting in the hallway, the victim drew his handgun, which was concealed inside a Crown Royal liquor bag, and fired a round into and through the hallway wall. The bullet passed through the wall and into the den of the apartment where several guests were present. Autopsy results showed that the victim’s blood-alcohol concentration was .173.

Two of the guests were slightly injured when the victim fired his gun close to their faces. Defendant became aware that the victim had fired the gun inside the apartment and injured one of the guests. Defendant, who was carrying a gun, gave the gun to the injured guest, who threatened the victim with it but then withdrew and left the party. Defendant made arrangements with Shalom Colen to leave the party, and defendant did leave the apartment. Colen went to the kitchen to retrieve his beer. Outside the apartment several of the guests were beating the victim’s cousin, Robert “Sonny” Holmes. Defendant was standing in the vicinity of the beating waiting for his friend, Shalom Colen. At this point, the victim came to the entrance to the apartment and fired his gun several times. The evidence is contradictory as to whether the victim fired the gun straight up in the air or in the direction of defendant. Defendant testified that the victim was firing at him. Defendant grabbed his gun from the individual to whom he had given it and ran back into the apartment.

Upon entering the apartment, defendant observed the victim standing in the living room holding the phone. The evidence is contradictory as to whether the victim was still armed at this time. Defendant testified that the victim was holding the telephone receiver in one hand and the gun in his other hand. The victim’s cousin testified that the victim was not armed and was holding the telephone receiver in one hand and the base of the telephone in the other. A .38-caliber revolver was found on the floor of the living room by the police after the shooting, as was a Crown Royal liquor bag. A .38-caliber bullet was found on the floor of the den.

Defendant asked the victim why he had shot at him, and the victim responded with an expletive. According to defendant, the victim began to raise his gun toward defendant. The two were standing approximately four feet apart. Defendant then shot the victim one time in the left shoulder. The victim is left handed. According to the victim’s cousin, defendant threatened the victim with the gun, then shot him, and ran out of the apartment. According to the cousin, the victim was attempting to telephone the police when he was shot. Although the bullet entered the victim’s left shoulder, it traveled through the victim’s body, hitting several vital organs and killing the victim instantly. The time between the victim shooting his gun at the street and the defendant shooting the victim was approximately one minute.

Defendant’s expert medical witness testified that the bullet wound to the victim would not have been fatal if the bullet had not hit a bone and ricocheted through the victim’s torso. The pathologist who performed the autopsy on the victim testified that both lungs and the liver had been penetrated by the bullet. It was the pathologist’s opinion that the bullet did not ricochet off of bone but entered the victim’s body at a downward angle. Ballistic evidence indicated that the muzzle of defendant’s gun was less than six inches from the victim’s shoulder but was not in contact with the shoulder at the time of discharge. The victim was shot with a .45-caliber bullet.

Defendant testified that he reentered the apartment only to disarm the victim and to make sure his friend, Shalom Colen, was unharmed. Defendant was afraid the victim might shoot him as defendant tried to leave the apartment and felt it necessary to disarm the victim. Defendant was mad when he entered the apartment but only shot the victim when the victim began to raise his gun toward defendant.

After the shooting, defendant did not summon help but left with his friends. The evidence indicates that defendant attempted to elude the police and attempted to dispose of his handgun.

At trial the jury received certain instructions which the defendant contends were improper and served to confuse the jury to such an extent that its verdict of guilty of second-degree murder cannot be viewed as reliable. Defendant contends that he was prejudiced by the giving of these improper and confusing instructions such that he was deprived of a fair trial and asks us to reverse the judgment and remand this cause for a new trial.

The defendant contends that the jury was erroneously instructed on the offense of armed violence predicated on first-degree murder because such an offense does not and cannot exist in the State of Illinois. Defendant also argues that the jury was erroneously instructed on the availability of the defense of justifiable use of force (self-defense) by one engaged in a forcible felony. The jury was instructed as follows:

“A person is not justified in the use of force if he is attempting to commit or committing a forcible felony.”
“The term ‘forcible felony’ means burglary, robbery, aggravated battery, or any felony which involves the use or threat of physical force or violence against any individual.”

Defendant argues that these instructions were confusing to the jury because he was not charged with any offense of attempt, nor was he charged with burglary, robbery, or aggravated battery. The only arguable forcible felony with which defendant was charged was home invasion, of which he was acquitted.

We note that during the jury-instruction conference, defendant objected to the giving of all the instructions which he claims on appeal were erroneously given. Defendant also raised the giving of these instructions as error in his post-trial motion.

We agree with defendant that the instructions given were erroneous. We note that the State does not contest this issue but assumes in its argument on appeal that the instructions were erroneously given. The State argues only that defendant was not prejudiced by the giving of the instructions.

We agree with defendant that the legislature did not intend that a charge of armed violence be predicated upon the offense of first-degree murder, which in all its forms carries a greater penalty than does armed violence. The purpose of the armed violence statute is to enhance the penalty for the underlying felony when a dangerous weapon is used in its commission. (People v. Rudd (1980), 90 Ill. App. 3d 22, 25-26, 412 N.E.2d 982, 984.) This purpose cannot be achieved where the underlying felony, whether based on armed conduct or unarmed conduct, carries a greater penalty than armed violence. The stiff punishment mandated by the armed violence statute is intended to deter the criminal from carrying a weapon while committing a felony. (People v. Alejos (1983), 97 Ill. 2d 502, 509, 455 N.E.2d 48, 51.) The possibility of being charged with armed violence cannot possibly act as a deterrent to carrying a weapon while committing a murder because murder carries a stiffer penalty than does armed violence. Thus, the armed violence statute can serve no deterrent purpose when applied to the offense of first-degree murder. Accordingly, just as a charge of armed violence cannot be predicated on the offenses of voluntary manslaughter (second-degree murder) (Alejos, 97 Ill. 2d at 513, 455 N.E.2d at 53) and involuntary manslaughter (People v. Fernetti (1984), 104 Ill. 2d 19, 24-25, 470 N.E.2d 501, 503) because it would have no deterrent effect, a charge of armed violence cannot be predicated on the offense of first-degree murder. Application of the armed violence statute to the offense of first-degree murder would not further the intent of the legislature. Accordingly, the trial court erred in instructing the jury on the offense of armed violence predicated on first-degree murder.

The trial court also erred in giving the State’s tendered instructions on justifiable use of force by one engaged in a forcible felony. Neither of the instructions given follows the Hlinois Pattern Jury Instructions. Those instructions, which read as follows, provide that only the applicable bracketed material be used in the instruction given to the jury:

“A person is not justified in the use of force if he is [(attempting to commit) (committing) (escaping after the commission of)] a forcible felony.” Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.10 (2d ed. 1981).
“The term ‘forcible felony’ means [(treason) (first degree murder) (second degree murder) (aggravated criminal sexual assault) (criminal sexual assault) (robbery) (burglary) (arson) (kidnapping) (aggravated battery) (_)].” (Illinois Pattern Jury Instructions, Criminal, No. 4.05 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 4.05 (Supp. 1989)).)

The committee note to the latter instruction directs to insert in the blank where appropriate “any felony which involves the use or threat of physical force or violence against any individual.” IPI Criminal 2d No. 4.05 (Supp. 1989), Committee Note, at 72.

In the instant case, we note that the jury was instructed that the defendant could not rely on self-defense to justify the killing if he was attempting to commit or committing burglary, robbery, or aggravated battery, but the jury was never instructed on the elements of the offenses of attempt, burglary, robbery, or aggravated battery. The third edition of the Illinois Pattern Jury Instructions, which was promulgated after defendant’s trial, makes it clear that the particular forcible felony being relied upon by the State to defeat the defense of self-defense must be specified in the instructions and must be defined to the jury. See Illinois Pattern Jury Instructions, Criminal, Nos. 4.05, 24 — 25.10 (3d ed. 1992).

We think the giving of these erroneous instructions served to confuse the jury and, more importantly, may have deprived the defendant of his defense of self-defense upon which he might have been acquitted of all charges. (We note that the jury did not necessarily consider an unreasonable belief in the need to exercise self-defense as it could have found defendant guilty of second-degree murder based on provocation.) The jury was left to speculate, without any defining instructions, whether defendant was prohibited from relying on self-defense because at the time of the killing he was engaged in one of several undefined forcible felonies. The offense of home invasion, with which defendant was charged and which was defined to the jury, was not listed as one of the forcible felonies which the jury could consider.

There is little doubt that the jury was confused by the instructions it received. During the course of its deliberations, it sent two notes to the judge inquiring, respectively, “Do you find a person guilty of 1st degree murder and then find him guilty of 2nd degree murder instead[?]” and “Can possible self defense be a reason to be judged innocent of these charges[?]” The jury’s verdicts of not guilty of first-degree murder but guilty of armed violence based on first-degree murder also evidence the jury’s confusion. Finally, during the hearing on defendant’s post-trial motion, the trial court recognized that the jurors “obviously were confused,” and the court stated, “[T|t was clear they were confused all the way through about first degree and second degree murder.” The court also recognized that many of the signs of jury confusion were not of record in the case. The court found, however, that any confusion “was caused by the Pattern instructions themselves and not by anything unique to this particular case.”

Jury instructions should be neither misleading nor confusing and should fully and fairly inform the jury of the applicable law. (People v. Godbout (1976), 42 Ill. App. 3d 1001, 1009, 356 N.E.2d 865, 872.) A defendant is entitled to have the jury so instructed that it may not become confused as to what constitutes the issue before it. (People v. Nugin (1981), 99 Ill. App. 3d 693, 697, 425 N.E.2d 1163, 1166.) The erroneous instructions in the case at bar were misleading and confusing and may have deprived defendant of his defense of justifiable use of force. Accordingly, we find that defendant was prejudiced by the trial court’s errors in instructing the jury. We must, therefore, reverse defendant’s conviction and sentence and remand this cause to the circuit court of Madison County for a new trial.

Of course, on retrial, defendant may not be tried for the offense of first-degree murder, his conviction for second-degree murder having the effect of an acquittal of the graver charge of first-degree murder. The doctrine of double jeopardy bars any further prosecution on the greater offense of first-degree murder. People v. Keith (1978), 66 Ill. App. 3d 93, 102, 383 N.E.2d 655, 662; see also People v. Newbern (1991), 219 Ill. App. 3d 333, 352-358, 579 N.E.2d 583, 596-599; People v. Timberson (1991), 213 Ill. App. 3d 1037, 573 N.E.2d 374.

In light of our decision herein, we find it unnecessary to discuss the other claims of error raised by defendant as they are unlikely to occur on retrial.

For the foregoing reasons the judgment of the circuit court of Madison County is reversed, and this cause is remanded to the circuit court of Madison County for a new trial.

Reversed and remanded.

CHAPMAN, P.J., and LEWIS, J., concur.


author: PRESIDING JUSTICE CHAPMAN JUSTICE RARICK,

text:
    GARY SMITH, Plaintiff-Appellant, v. UNITED FARM MUTUAL REINSURANCE et al., Defendants-Appellees.
    Fifth District
    No. 5-91-0838
    Opinion filed August 30, 1993.
    RARICK, J., dissenting.
    Louis R Johnson, of Johnson & Johnson, of Metropolis, for appellant.
    William J. Novick, of Fowler & Novick, of Marion, for appellees Ron Clark Insurance, Inc., and Ron Clark.
    William Kent Brandon and Stephen W. Stone, both of Brandon, Schmidt & Palmer, of Carbondale, for appellee United Farm Mutual Reinsurance.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal is from the circuit court’s orders granting summary judgment in favor of the defendants and denying plaintiff’s motion for summary judgment. We reverse and remand.

In January of 1984, Gary Smith purchased a homeowner’s policy from United Farm Mutual Reinsurance (United Farm) through his insurance broker, Ron Clark Insurance, Inc. (Agency), and paid the premium through July 20, 1984. On May 22, 1984, plaintiff’s wife Beatrice Smith advised an employee at the Agency that she and her husband would be moving to Florida and that they had rented their house in Eldorado, Illinois, to the Shivley family. Cecile Weidemann, an employee at the Agency, advised Beatrice Smith that the homeowner’s policy would have to be cancelled and that a renter’s policy would be issued. Weidemann signed Gary Smith’s name to a policy-release statement, signed her own name as a witness, and then forwarded the document to United Farm, which can-celled the homeowner’s policy and issued a refund check. This check was forwarded to the plaintiff in Florida. A renter’s policy was also forwarded to the plaintiff. Plaintiff cashed the refund check. Thereafter, United Farm sent a premium statement for the renter’s policy to the Smiths’ address in De Land, Florida, and required payment of $51 by June 14, 1984, in order to maintain the renter’s policy. Plaintiff did not pay the premium by June 14, 1984. During June of 1984, the Smiths moved from De Land, Florida, to Lake Helen, Florida, but did not inform United Farm or the Agency of their new address.

United Farm maintains that on June 22, 1984, it mailed notice of cancellation of the renter’s policy for nonpayment of premium to De Land, Florida, the last residence known to United Farm. The notice stated that the cancellation was to become effective on July 2, 1984. Plaintiff denies receiving a notice of cancellation on either the homeowner’s or renter’s policy. The Smiths returned to Illinois at the end of June 1984. On approximately July 2, 1984, plaintiff received an additional premium statement that gave him until August 23,1984, to pay the premium on the renter’s policy.

On July 12, 1984, plaintiff was told via telephone that his house was on fire. En route to the fire plaintiff and his wife stopped at the Agency and paid the premium on the renter’s policy. Subsequently, the Agency returned the premium and denied the claim. Plaintiff filed suit claiming coverage under either the homeowner’s insurance policy or the renter's policy. All parties filed motions for summary judgment, and the court entered summary judgment in favor of the defendants and against the plaintiff. Plaintiff appeals.

Before considering the summary judgment issue, it is necessary to first address plaintiff’s argument that the trial court erred in striking his and his wife’s affidavits which were filed in opposition to United Farm’s motion for summary judgment.

With regard to the affidavit of Gary Smith, the trial court based its ruling on its finding that , the affidavit of Gary Smith contained hearsay, was conclusory, and was not based entirely on Gary Smith’s personal knowledge. Plaintiff submits that the affidavit is completely supported by admitted documentary evidence in the record. He argues that the purpose of the affidavit was to correct the mistakes he made in his deposition. The affidavit provides in pertinent part:

“1. That I am the Plaintiff in this case, because my name is on the insurance policies that are described in the complaint.
2. That my wife, Beatrice Smith, had the sole contact with the insurance company, and I had no contact whatsoever with the insurance company, or the insurance agency between the dates of May 22, 1984, and July 12, 1984. Even the mailings were received by my wife, especially down in Florida.
3. If I am called to testify at the trial, I will testify under oath that when I gave my deposition on November 21, 1986, I made several errors. In the first place, I seldom received the mail. My wife, Beatrice, received the mail. I did not pay much attention to what was received in the mail, because I knew that my policy was paid up until the middle of July, and I did not figure that we could be without coverage no matter what bills the insurance company sent.
4. A [sic] the deposition, I was studying the documents and testifying from the insurance policies and the premium notices and the refund notice, all of which were attached to the complaint.
I never saw a cancelled policy, so when I said on Page 16 ‘that I received a cancelled policy and a check,’ I was totally wrong. I must have taken that from the letter dated June 1, 1984, that says:
‘Mr. and Mrs. Smith, Enclosed please find your new policy showing rental dwelling. Premium due of $51.00 by June 14, 1984. You will receive a refund shortly from cancellation of your previous policy. Thanks, Cecile K. Weidemann.’
5. At the deposition, I looked at the $29.00 refund statement, and I surmised that I received the B.W. policy attached to the complaint with the refund check, but I learned from my wife, Beatrice, that that is not so. The refund check came toward the end of June and there was no policy with it, just Exhibit 1. Ron Clark and the other insurance people told me that right after the fire, that [sic] I had been cancelled out and I guess I just took them at their word. Even my attorney thought that I had signed a cancellation of the first policy because the insurance company told him that I did. When he finally got a copy of the cancellation, I showed him that I never signed it nor had I gone to Ron Clark’s office before July 12, 1984, so I could not have signed it. Only then did he realize that the first policy was never cancelled.
I have read my wife’s Affidavit and I will adopt it completely. It comes back to me that the parts that I was aware of happened just as she said it. It is unfortunate that I was called for the deposition because I knew far less about what happened than Beatrice did.”

Under Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)), an affidavit submitted in connection with a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure (735 ILCS 5/2 — 1005 (West 1992)) shall be made on the personal knowledge of the affiant and shall not consist of conclusions but of facts admissible in evidence. Parts of paragraphs 3 and 4 and most of paragraph 5 of Gary Smith’s affidavit contain conclusory statements as to plaintiff’s beliefs and possible reasons why plaintiff may have testified the way he did at his deposition. In addition, paragraph 5 relates statements made by others to the affiant and the purported beliefs of others. These paragraphs contain conclusory and hearsay statements and do not meet with the requirements of Rule 191(a). (See Kalb v. Village of Oak Lawn (1984), 128 Ill. App. 3d 481, 470 N.E.2d 1268; International Society for Krishna Consciousness, Inc. v. City of Evanston (1977), 53 Ill. App. 3d 443, 368 N.E.2d 644.) The trial court did not err in striking Gary Smith’s affidavit. Because of our determination, we decline to reach defendant’s argument that the affidavit in question was properly stricken because it contained statements which contradicted the judicial admissions made in the affiant’s deposition.

As for Beatrice Smith’s affidavit, the court struck it because the court found it contained hearsay, was conclusory, and was not based entirely upon her personal knowledge. Supreme Court Rule 191 is satisfied if from the affidavit as a whole it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 576, 442 N.E.2d 648, 654; Houser v. State Farm Insurance Co. (1989), 193 Ill. App. 3d 125, 549 N.E.2d 17.) The affidavit submitted by Beatrice Smith contains evidentiary facts, which would reasonably appear to be within her personal knowledge. The affidavit contains specific facts setting forth the circumstances leading up to the dispute as to whether the homeowner’s policy was in fact validly cancelled. We find that the trial court erred in striking Beatrice Smith’s affidavit.

We now turn to the issue of whether the trial court erred in granting defendants’ motions for summary judgment and denying plaintiff’s motion for summary judgment.

A motion for summary judgment should be granted when 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 judgment as a matter of law. (735 ILCS 5/2 — 1005 (West 1992); Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552, 555.) An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. (Addison, 124 Ill. 2d at 294, 529 N.E.2d at 555.) With this in mind, we turn to the facts as they existed at the time the orders were entered, addressing each insurance policy separately.

HOMEOWNER’S POLICY

The homeowner’s policy could be cancelled at any time at the request of the insured upon return of the policy to the home office. Under the policy terms, the insurer could cancel the policy for nonpayment of premiums. For reasons other than nonpayment of premiums, the insurer could cancel by mailing notice of cancellation to the insured, at the last mailing address known by the company, at least 30 days prior to the effective date of cancellation. In addition, the insurer could cancel the policy, for reasons stated, if the policy had been in effect for one year or was a renewal policy.

It is undisputed that the homeowner’s policy was initially paid in full through July 20, 1984. It is further undisputed that the policy had not been in effect for one year and was not a renewal policy. Thus, the policy could be cancelled by the insurer only if the insured surrendered the policy or if the insurer gave notice of cancellation at least 30 days prior to the effective date of cancellation.

On the question of whether plaintiff surrendered the policy, the record reveals the following facts. Cecile Weidemann, an employee of the Agency, testified in her affidavit that she advised Beatrice Smith that the homeowner’s policy would have to be canceled and that Weidemann would cancel it and would rewrite a renter’s policy. In his deposition Gary Smith stated that he received a copy of the cancelled homeowner’s policy while he was in De Land, Florida. Beatrice Smith testified in her affidavit that at no time did she request cancellation of the policy and that she was not advised that it would be cancelled. Beatrice Smith further testified that she never surrendered the homeowner’s policy to the defendants and has always had it in her possession except for turning it over to her attorney for this lawsuit. Under these facts the question of surrender of the policy is disputed. In addition, a question arises whether plaintiff requested that defendants cancel his policy. The Agency admits that its employee signed the plaintiff’s name to a cancellation/ policy-release form regarding the homeowner’s policy. Thus, there is evidence that the insured did not request cancellation of the homeowner’s policy.

As for the insurer’s right to cancel by giving 30 days’ notice of cancellation, Beatrice and Gary Smith deny receiving notice of cancellation on the homeowner’s policy. The defendants contend that Smith’s receipt of the refund check, dated June 15, 1984, constituted 30-day notice of cancellation of the policy. This argument is not well-founded as the check is dated June 15 and the fire occurred on July 12, less then 30 days after the date of the check.

Based on these disputed material facts, we believe the trial court erred in granting summary judgment to the defendants with regard to the homeowner’s policy.

RENTER’S POLICY

Beatrice Smith notified the Agency in May of 1984 that her family was moving to Florida and that they had rented their house. Beatrice was advised by the insurance representative, Cecile Weidemann, that the homeowner’s policy would have to be changed to a renter’s policy. The Agency admits in its brief that Cecile Weidemann signed the insured’s, Gary Smith’s, name to the policy-release statement and mailed it to United Farm so that a renter’s policy could be issued. The Agency states in its brief that this procedure was taken in accordance with what Weidemann told Beatrice the Agency would do.

Plaintiff admits in his deposition that he received the renter’s policy and a note while in De Land, Florida. The note read:

“Mr. and Mrs. Smith:
Enclosed is your new policy showing rental dwelling. Premium due is $51.00. You will receive a refund shortly from cancellation of your previous policy.
Thanks,
Cecile Weidemann”

Beatrice testified in her affidavit that the renter’s policy looked just like the homeowner’s policy, except that the renter’s policy excluded the contents of the house from coverage. Beatrice’s affidavit stated that she believed any refund they would receive would be from deleting the contents of the house from coverage. Beatrice testified that on June 8 or 9, 1984, she and her husband received a premium notice for $51, payable by June 14, 1984. Plaintiff did not pay the premium by that date. Beatrice and Gary both testified that upon returning to Illinois around July 1, 1984, they received a second premium statement on the renter’s policy, which indicated that the premium was due August 23,1984.

United Farm claims that on June 22, 1984, it mailed a notice of cancellation of the renter’s policy for nonpayment of premium to De Land, Florida. Section 143.15 of the Illinois Insurance Code (215 ILCS 5/143.15 (West 1992)) and the terms of the renter’s policy itself provide that where cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation shall be given. Included in the record is a copy of a “Notice of Cancellation” addressed to Gary Smith in De Land, Florida, postmarked June 22, 1984, advising the Smiths of the July 2, 1984, cancellation date. The Smiths moved from De Land to Lake Helen, Florida, in June and did not advise defendants of their new address. The Smiths deny receiving the notice of cancellation. Plaintiff paid the $51 premium on the renter’s policy on July 12,1984.

To have granted summary judgment in this case the trial court must have impermissibly drawn conclusions from disputed facts even though a reasonable person could have drawn different conclusions from the same facts. (See Krishna, 53 Ill. App. 3d at 456, 368 N.E.2d at 652.) Given the dispute over the cancellation of the policy versus an extension of the due date on the premium, we find the trial court erred in granting summary judgment.

The order of the trial court granting summary judgment for defendants is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

WELCH, J., concurs.

JUSTICE RARICK,

dissenting:

I respectfully dissent. After reviewing the affidavits of Beatrice Smith that were filed in opposition to defendant’s motion for summary judgment, I conclude that they were properly stricken by the trial court. As the trial court found, the affidavits contain hearsay statements, are conclusory, and are not based entirely upon her personal knowledge. They are therefore insufficient under Supreme Court Rule 191. 134 Ill. 2d R. 191.

In the absence of Beatrice Smith’s affidavit, there is nothing to contradict the affidavit of Cecile Weidemann and the deposition testimony of Gary Smith, both of which demonstrate unequivocally that the homeowner’s policy was cancelled. Indeed, in the absence of Beatrice’s affidavits, the record clearly demonstrates that the homeowner’s policy was cancelled at the Smiths’ request.

With respect to the renter’s policy, the record demonstrates that defendant mailed notice of cancellation on June 22, 1984, advising plaintiffs that their renter’s policy would be cancelled for nonpayment of premium as of July 2, 1984. This notice was sent to plaintiff’s last-known address. Although plaintiffs had by this time moved back to Hlinois, they did not inform defendants of this fact. Finally, Gary Smith admitted in his deposition testimony that the premium notice stated that the premium was due by June 14, 1989, and that he did not pay it by that date. The majority notes that the Smiths received a premium notice indicating a due date of August 23, 1984. Reviewing the record, particularly the renter’s policy and the premium notice, it is clear to me that this notice was not an extension of time. The policy provides that premium payments were to be made quarterly. The premium notice indicates that payment by August 23, 1984, would keep the policy in effect for three months. The policy was issued on May 23, 1984, and the premium notice with the August 23, 1984, due date was clearly the bill for the second payment.

Based upon the foregoing, I would affirm the trial court’s grant of summary judgment for the defendant.