author: JUSTICE MANNING

text:
    SCOTTISH AND YORK INTERNATIONAL INSURANCE GROUP/GUARANTEE INSURANCE COMPANY, Plaintiff-Appellee, v. COMET CASUALTY COMPANY et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—88—3543
    Opinion filed December 24, 1990.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker, Howard A. London, and Timothy M. Kelly, of counsel), for appellants.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge and Martin D. Judge, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Defendants Comet Casualty Company and Prestige Casualty Company (hereafter Comet) appeal from the order of the circuit court of Cook County which granted judgment in the amount of $20,318.65 and summary judgment on the issues presented in the declaratory action in favor of plaintiffs, Scottish & York International Insurance Group/Guarantee Insurance Company (hereafter Guarantee). The facts are as follows.

On February 5, 1983, Thomas J. Bock (hereafter Bock), while operating a SVz-ton truck owned by Buffalo Grove Rental (hereafter Buffalo), a rental equipment dealer,was involved in an accident with a minor pedestrian, Howard Sussman. Buffalo had leased the truck to Tom Bailey pursuant to the terms of a written rental agreement, and it is not disputed that Bailey gave permission to Bock to drive the truck.

The minor, by his parent and natural guardian, filed suit (hereafter the Sussman suit) against Buffalo and Bock, alleging that Bock negligently operated the vehicle as an agent or servant of Buffalo. Guarantee, which had issued its business liability insurance policy to Buffalo to conform to the Illinois Vehicle Code (Owners of For Rent Vehicles For-Hire Act) (Ill. Rev. Stat. 1987, ch. 95V2, par. 9 — 101 et seq.), provided a defense in the Sussman suit. Guarantee made repeated but unavailing requests upon Comet, whose family combination automobile policy provided liability coverage to Bock as the named insured, to share the cost of the Sussman action on a pro rata basis. However, Comet neither participated in the defense nor the settlement negotiations as it contended in letters addressed to Guarantee that the truck was not an “automobile” under the terms of its policy, and if it were, it would not be covered under the policy’s exclusion that states “[tjhis policy does not apply under Part I: (k) to any automobile rented or leased by the insured where other valid or collectible insurance has been purchased by or furnished to the insured in connection with such rental or lease.”

Subsequently, Guarantee settled the Sussman suit by paying out its policy limits of $50,000, and incurred $10,637.30 in defense costs. Thereafter, Guarantee filed an action for declaratory relief and motion for summary judgment asserting that the policies issued by both insurers contained similar excess clauses, Comet by breaching its duty to defend was precluded from asserting any policy defenses, and Comet was obligated to reimburse Guarantee for settlement and defense costs.

Comet countered by restating the position advanced in the letters to Guarantee and further maintained that assuming any coverage under the Comet policy, it neither had a duty to defend as Guarantee’s policy provided primary coverage nor a duty to reimburse because Guarantee settled the Sussman suit for its policy limits.

On September 23, 1986, the trial court granted Guarantee’s motion for summary judgment, finding Comet liable for a pro rata share of the settlement and reserved ruling on the question of pro rata sharing of the costs of defense. Thereafter, Guarantee filed its motion to enter pro rata judgment, arguing that based upon the authority of Continental Casualty Co. v. Travelers Insurance Co. (1967), 84 Ill. App. 2d 200, 228 N.E.2d 141, Comet was required to share the costs of settlement and defense on a 50/50 basis. Comet responded that sharing of the costs on an equal basis was improper as each insurer was responsible for only that proportion of the judgment that its policy limits represented.

On April 28, 1988, the trial court entered judgment in favor of Guarantee “in the amount of $20,318.65, said amount representing the $15,000 policy limit of defendant’s (Comet’s) policy and fifty percent of the total cost of defense of $10,637.30,” and Comet now appeals from that order.

On appeal, Comet argues: (1) that it had no duty to defend because the truck was not a “non-owned automobile” within the meaning of its policy definition, (2) assuming the contrary, Comet, as the excess carrier, had no duty to defend because Guarantee’s policy provided primary coverage, (3) that as the excess carrier Comet had no duty to reimburse until Guarantee’s primary coverage limit was exhausted and it had paid sums in excess of that coverage, which did not occur here, and (4) that the trial court erred in its pro rata distribution of settlement and defense costs.

On appeal from a trial court’s grant of summary judgment, a reviewing court’s sole function is to determine whether the trial court properly concluded that there were no genuine issues of material fact, and if there were none, whether judgment was correct as a matter of law. (See Federal Insurance Co. v. Economy Fire & Casualty Co. (1989), 189 Ill. App. 3d 732, 545 N.E.2d 541; Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865; see also Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) Our courts have found that summary judgment is proper when the issue is determinable solely as a matter of law (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 452 N.E.2d 649; Smith v. Rengel (1981), 97 Ill. App. 3d 204, 422 N.E.2d 1146, Martin v. American Legion Post No. 781 (1978), 66 Ill. App. 3d 116, 383 N.E.2d 672; Rivota v. Kaplan (1977), 49 Ill. App. 3d 910, 364 N.E.2d 337), particularly where only construction and validity of a contract (Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App. 3d 153, 397 N.E.2d 75) or insurance policy are at issue. (Community National Bank v. St. Paul Fire & Marine Insurance Co. (D.C. Cir. 1975), 399 F. Supp. 873; State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601; Doll v. Farmers Automobile Insurance Association (1977), 54 Ill. App. 3d 868, 370 N.E.2d 258; Van Vactor v. Blue Cross Association (1977), 50 Ill. App. 3d 709, 365 N.E.2d 638.) However, such interpretation must be correct as a matter of law, and the factual and legal right of the moving party to summary judgment must be free from doubt. See Sheetz v. Morgan (1981), 98 Ill. App. 3d 794, 424 N.E.2d 867; Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 406 N.E.2d 946; Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 374 N.E.2d 1302; Watkins v. Lewis (1968), 96 Ill. App. 2d 182, 237 N.E.2d 830; Scharf v. Waters (1946), 328 Ill. App. 525, 66 N.E.2d 499.

While we do not quarrel with the trial court’s holding that there were no genuine issues of material fact present, we do question the propriety of the judgment here with respect to the trial court’s finding that the truck involved in the accident was an automobile within the meaning of Comet’s family automobile policy and the common definition of such term. As the construction of Comet’s policy is a question of law (Sawyer Fruit & Vegetable Co-Operative Corp. v. Lumbermens Mutual Casualty Co. (1983), 117 Ill. App. 3d 407, 453 N.E.2d 826), the question of coverage of the truck is a proper issue to be determined upon review, independent of the trial court’s judgment (Bohen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 458 N.E.2d 644), as it is incumbent upon this court to determine whether the law has been properly applied based upon the record. Fidelity General Insurance Co. v. Nelsen Steel & Wire Co. (1971), 132 Ill. App. 2d 635, 270 N.E.2d 616.

The relevant provisions of Comet’s policy state, in pertinent part:

“Part I Coverage A-Bodily Injury Liability.
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury, sickness, or disease, including death resulting therefrom, sustained by any person; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.”

There is no question that Bock is an insured under the policy and that he was not driving an owned automobile at the time of the accident, rather the truck was owned by Buffalo. The trial court in agreeing with Guarantee found that although the policy here did not define the term “automobile,” truck was included under the definition of “non-owned automobile.” We disagree.

The Comet policy defines “owned automobile” as:

“(a) a private passenger, farm or utility automobile, which is a four wheel land motor vehicle, described in this policy for which a specific premium charge indicates that coverage is afforded;
(b) a private passenger, farm or utility automobile for which ownership is newly acquired;
(c) a temporary substitute automobile; which means any private passenger, farm or utility automobile, not owned by the named insured, while temporarily used as a substitute for the owned automobile when withdrawn from normal use.”

Under the same definition portion of the policy entitled “Definitions-Part I,” the terms “private passenger,” “farm,” and “utility” automobiles are defined respectively as:

“ ‘private passenger automobile’ means a four wheel private passenger, station wagon or jeep style vehicle;
‘farm automobile’ means an automobile of - the truck type with a load capacity of fifteen hundred (1500) pounds or less not used for business or commercial purposes other than farming;
‘utility automobile’ means an automobile, other than a farm automobile, with a load capacity of fifteen hundred pounds or less of the pick-up-body, sedan delivery or panel truck type not used for business or commercial purposes.”

“Non-owned automobile” is defined as:

“an automobile not owned by or furnished or available for the regular use of the named insured, or of any relative of the same household, other than a temporary substitute vehicle.”

This court addressed a situation very similar to the case at bar in Weed v. Ohio Farmers Insurance Co. (1977), 53 Ill. App. 3d 826, 368 N.E.2d 1310. In Weed, it was held that a flatbed truck which was being operated by the insured at the time of the accident did not come within coverage of the family automobile policy for bodily injury arising out of use of either an “owned automobile” where “truck type automobile” and “utility automobile” referred only to a farm vehicle with a load capacity of 1,500 pounds or less or a panel truck type, or a “non-owned automobile” which was defined identically to the non-owned automobile here.

We believe the Weed court’s analysis is applicable to the present matter. Similar to the policy in Weed, the policy here does not define “automobile,” but does contain a specific definition of the class of automobiles that are included in the terms “owned automobile” and “temporary substitute automobile.”

Moreover, we find no merit in Guarantee’s argument that the term “automobile” in a generic sense covers both trucks and passenger cars. Neither does a standard dictionary so define the term “automobile,” i.e., “automobile” means “a self propelled passenger vehicle that usually has four wheels and an internal combustion engine used for land transport.” The American Heritage Dictionary 143 (2d College ed. 1982).

It is well established that insurance contracts, like other contracts (State Farm Mutual Automobile Insurance Co. v. Salerno (1984), 121 Ill. App. 3d 384, 459 N.E.2d 1075), are to be construed according to the sense and meaning of the terms which the parties have employed (Pioneer Life Insurance Co. v. Alliance Life Insurance Co. (1940), 374 Ill. 576, 586, 30 N.E.2d 66), but, this does not alter the principle that as contracts, insurance policies are subject to the general rules of construction which apply to other contracts. (Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 392 N.E.2d 1365, aff’d (1980), 81 Ill. 2d 201, 407 N.E.2d 47.) Accordingly, we are required to examine the policy in its entirety and to interpret relevant parts in light of the whole document, in order to determine whether any ambiguity or uncertainty exists in the language at issue. (Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 412, 407 N.E.2d 77; see also Lang v. Monarch Life Insurance Co. (1979), 75 Ill. App. 3d 938, 942, 394 N.E.2d 751.) Where the language of the policy is clear and unambiguous, it must be taken in its plain, ordinary and popular sense. Johnson v. State Farm Mutual Automobile Insurance Co. (1979), 78 Ill. App. 3d 144, 396 N.E.2d 1190.

In applying the foregoing principles of law to the case at bar, we find although the term “automobile” is not specifically defined in the Comet policy, the 31/2-ton truck involved in the accident is not covered under the definition of “non-owned automobile” where the policy’s definitions of “owned automobile” and “temporary substitute automobile” are limited to private passenger, farm or utility automobiles. An elementary principle of contract law provides that, in a contract in which there are general and specific provisions relating to the same subject, the specific provisions are controlling. Faith v. Martoccio (1974), 21 Ill. App. 3d 999, 1003, 316 N.E.2d 164.

Moreover, the conclusion here that large trucks are not contemplated or covered by the Comet policy is consistent with decisions of the appellate court that have construed policy definitions contained in family automobile policies that were virtually identical to Comet’s policy. (See Tyler, 85 Ill. App. 3d 410; Weed, 53 Ill. App. 3d 826.) In State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 365 N.E.2d 290, this court held that under the non-owned provision of the liability policy that defined “nonowned automobile” to mean an automobile, trailer, or detachable living quarters unit and described automobile as a four-wheel land motor vehicle for use principally upon public roads, coverage was not afforded the insured while operating a nonowned motorcycle. Similarly, in State Farm Mutual Automobile Insurance Co. v. Salerno (1984), 121 Ill. App. 3d 384, 459 N.E.2d 1075, this court found that a tow truck which was driven by the insured and had two tires on its front axle and four tires on its rear axles was not covered by the insured’s policy as the policy defined “automobile” as a “four wheel land motor vehicle designed for use principally upon public roads.” Salerno, 121 Ill. App. 3d at 386; but see Uhwat v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 295, 465 N.E.2d 964 (where the court held a pickup truck, not otherwise mentioned or defined in the policy, was a “land motor vehicle” in the plain and ordinary sense of that phrase).

Accordingly, we find there to be no ambiguity or uncertainty in the language of the Comet family automobile policy. When the policy is considered as a whole, we conclude that the 3V2-ton truck is not an automobile within the meaning of the policy. Even assuming the truck could be considered a nonowned automobile within the policy’s definitions, we would agree with Comet that, based upon the factual matrix here presented, there was no potential for coverage because of the existence of the valid exclusionary provision mentioned above. However, in light of our determination of the issue as to noncoverage of the truck, it is not necessary for us to address the other issues raised by Comet on this appeal.

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

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    SARGENT AND LUNDY, Plaintiff-Appellant, v. ROGER D. SWEET, as Director of the Department of Revenue, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0690
    Opinion filed December 24, 1990.

      McDermott, Will & Emery, of Chicago (Richard A. Hanson and David J. Duez, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Sargent & Lundy, an engineering firm, appeals from an order granting summary judgment in favor of defendants, the Department of Revenue of the State of Illinois, Roger D. Sweet, as Director of the Department, and Jerry Consentino, as Treasurer of the State of Illinois (jointly referred to as the Department), in an action alleging that, pursuant to section 5 of the Retailers’ Occupation Tax Act (the ROTA) (Ill. Rev. Stat. 1985, ch. 120, par. 444), the Department’s tax liability notice for unpaid use tax, dated December 10, 1987, for the audited period of July 1, 1981, through June 30, 1984, was time barred by section 5’s three-year limitations period. Although the version of section 5 in effect at the end of the audited period provided for a three-year limitations period for filing notice of tax liability, section 5 was subsequently amended to eliminate the limitations period, effective September 13, 1984 (the 1984 amendment). The sole issue on appeal is whether the version of section 5 in effect at the end of the audited period or the 1984 amendment to section 5 governed the Department’s action against plaintiff. For the following reasons, we hold that the 1984 amendment governed the action and affirm the judgment of the trial court.

In late 1987, the Department audited plaintiff to determine whether plaintiff had paid use tax for the period of July 1, 1981, through June 30, 1984. The audit revealed that plaintiff owed $44,347 in unpaid use tax. As a result, on a form dated December 10, 1987, the Department notified plaintiff that it owed the Department $44,347 in unpaid use tax, $8,869 in penalty, and $48,239 in interest for that period.

Under protest, plaintiff paid the amount assessed by the Department and filed a complaint alleging that the Department was barred from seeking payment of use tax plus penalty and interest for the period of July 1, 1981, through June 30, 1984, on the ground that the three-year limitations period in effect at the end of the audited period had expired on July 1, 1987. Plaintiff then moved for summary judgment predicated on the three-year limitations period. The Department, in turn, filed a cross-motion for summary judgment, alleging that the 1984 amendment, effective September 13, 1984, which eliminated the limitations period, governed the Department’s action against plaintiff. Therefore, the Department’s notice was timely sent. Following hearings on the motions, the trial court granted summary judgment in favor of the Department, finding that the 1984 amendment controlled. Plaintiff’s timely appeal followed.

The sole issue on appeal is whether the 1984 amendment to section 5 of the ROTA, which eliminated the limitations period for filing a notice of tax liability, governed the Department’s action against plaintiff. During the audited period of July 1, 1981, through June 30, 1984, the limitations period for assessment of Illinois Retailers’ Occupation Tax and Illinois Use Tax was three years unless the taxpayer willfully failed to file a return. In the case of willful failure to file, there was no limitations period. Pursuant to the 1984 amendment, effective September 13, 1984, the limitations period was eliminated, regardless of cause.

The long-standing rule in Illinois is that where a limitations period has not expired prior to an amendment, the amendatory act controls all actions and remedies not previously barred. (Smolen v. Industrial Comm’n (1926), 324 Ill. 32, 154 N.E. 441; People v. Rednour (1969), 43 Ill. 2d 307, 253 N.E.2d 414; People v. Covington (1970), 45 Ill. 2d 105, 257 N.E.2d 106.) In Smolen, pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989; ch. 48, par. 138.1 et seq.), the Industrial Commission awarded compensation to plaintiff for total disability on April 8, 1921. At that time, paragraph (f) of section 8 of the Act provided that the Commission could review an award for total disability only within 18 months after it was made. Within 18 months after plaintiff’s award, paragraph (f) was amended to completely eliminate the limitations period. The supreme court held that because the 18-month limitations period had not expired at the time of the amendment, the amendment governed plaintiff’s situation.

Similarly, in Rednour and Covington, the supreme court addressed the issue as to whether a 1965 amendment to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1967, ch. 38, par. 122 — 1 et seq.), which extended from 5 years to 20 years the period within which a post-conviction petition could be filed, applied to a 1961 conviction (Rednour) and a 1962 conviction (Covington). Prior to the amendment, the period for filing post-conviction petitions would have expired in 1966 and 1967, respectively. The Rednour and Covington courts held that the amendment applied to all existing causes of action not yet barred. As a result, because the five-year limitations period for both Rednour and Covington had not expired at the time the statute was amended, the amendment governed each cause of action.

This general rule was reiterated in Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 380 N.E.2d 782, which addressed the issue of whether an amendment extending the limitations period could be applied to revive a cause of action or claim which had been previously barred. In reaching its decision that the amendment could not be applied retroactively to revive a claim, the court distinguished that situation from one where an amendment extending the time for review becomes effective prior to the expiration of the previous limitations period. In the latter situation, the Arnold court noted that the general rule provides that where a limitations period has not expired prior to amendment, the amendment controls actions and remedies not previously barred. 72 Ill. 2d at 165. Accord Francisco v. Tribune Co. (1985), 137 Ill. App. 3d 119, 484 N.E.2d 435.

In the present case, prior to the 1984 amendment, which eliminated the limitations period, section 5 provided for a three-year limitations period within which the Department could file a tax notice. Therefore, a tax notice for the period of July 1, 1981, through June 30, 1984, would have to be filed on or before June 30, 1987. Pursuant to Smolen and its progeny, because the 1984 amendment became effective prior to the expiration of the three-year limitations period, the amendment controls the action brought by the Department against plaintiff and the Department’s notice was timely sent.

Plaintiff’s reliance on Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 522 N.E.2d 1195, and on Jefferson Ice Co. v. Johnson (1985), 139 Ill. App. 3d 626, 487 N.E.2d 1126, for the proposition that this court must look to legislative intent to determine whether the 1984 amendment to section 5 is to be applied retroactively is misplaced. Neither Rivard nor Jefferson Ice Co. addresses an amendment to a limitations period. As stated, the law regarding retroactive application of amendments to limitations periods which take effect prior to the expiration of the limitations period is well settled in the Department’s favor.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


author: JUSTICE O’CONNOR

text:
    SUSAN SONNTAG, Plaintiff-Appellant, v. WHIPPLETREE VILLAGE PARTNERSHIP et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—2627
    Opinion filed December 24, 1990.

      Spina, McGuire & Okal, RC., of Elmwood Park (John D. Spina, of counsel), for appellant.
    Wolin & Rosen, Ltd., of Chicago (Harold Rosen and Marty J. Schwartz, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Susan Sonntag’s complaint for violation of section 24 of the Mobile Home Landlord and Tenant Rights Act (the Mobile Home Act) (Ill. Rev. Stat. 1987, ch. 80, par. 224) was dismissed for failure to state a claim. For the reasons below,-we affirm.

Susan Sonntag owned a mobile home and leased lot 383 in a mobile home park owned by the Whippletree Village Partnership in Wheeling, Illinois. On September 6, 1988, due to Sonntag’s failure to pay rent, Whippletree was awarded a judgment for possession of lot 383. Enforcement of the judgment was stayed until October 31, 1988.

On September 18, 1988, Ms. Sonntag entered into a contract to sell her mobile home to a third party for $12,000. On September 19, she applied to Whippletree for a lot lease for the purchaser. Whippletree rejected the lease and ordered Ms. Sonntag to remove her mobile home from the lot immediately.

Ms. Sonntag sued Whippletree for violation of section 24 of the Mobile Home Act, which provides in relevant part:

“The park owner shall be enjoined and restrained from prohibiting, limiting, restricting, obstructing or in any manner interfering with the freedom of the mobile home owner to:
(a) Sell his mobile home to the purchaser of his choice, provided that the park owner shall be allowed to promulgate any general qualifications or lawful restrictions on park residents which limit or define the admission of entrants to the park. The purchaser, prior to closing, must obtain a written and signed lease.” (Ill. Rev. Stat. 1987, ch. 80, par. 224.)

Ms. Sonntag alleged that Whippletree’s rejection of the purchaser and order to remove the mobile home immediately violated section 24 and forced her to sell her mobile home at a loss of $10,300. Whippletree moved to dismiss, arguing that the judgment for possession terminated the lease and, therefore, Ms. Sonntag was no longer entitled to protection under the Mobile Home Act. The trial court granted Whippletree’s motion. Ms. Sonntag appeals.

Ms. Sonntag’s complaint was properly dismissed. The Mobile Home Act regulates the rights, remedies, and obligations of the parties to a lease for a mobile home lot (Ill. Rev. Stat. 1987, ch. 80, par. 201), and neither its language nor legislative history indicates the intent to extend application of the Mobile Home Act beyond the duration of the lease or the scope of the landlord-tenant relationship created by the lease. Thus, when the judgment for possession terminated the lease, the Mobile Home Act ceased to apply.

But termination of the lease alone did not preclude application of the Mobile Home Act here. Here, Ms. Sonntag made no allegation that the cause of action arose from the landlord-tenant relationship created by the lease. Rather, Ms. Sonntag alleged that the cause of action arose solely from Whippletree’s failure to comply with section 24 of the Mobile Home Act.

Section 24 of the Mobile Home Act requires that the purchaser of a mobile home obtain a lease for the lot on which it sits before closing the sale. The lot owner may not interfere with the sale, either by frustrating the transaction or arbitrarily refusing a lease to the purchaser, but he may determine that the purchaser meets lawfully promulgated qualifications for entry to the park. (Ill. Rev. Stat. 1987, ch. 80, par. 224.) Thus, section 24 contemplates the not uncommon circumstance where the ownership of a mobile home changes hands while the mobile home remains on a rented lot, providing a mechanism for the tenant of the lot to change with the ownership of the mobile home.

Here, however, there was no tenant for lot 383 when Ms. Sonntag sold her mobile home; the judgment for possession had terminated the lease. Thus, neither Ms. Sonntag nor her purchaser was required to obtain a lease from Whippletree prior to closing the sale of the mobile home, and with no extant tenant for lot 383, Whippletree was entitled to accept or refuse any potential tenant for lot 383, without regard to Sonntag or any person Ms. Sonntag proffered.

Ms. Sonntag further alleged that Whippletree’s refusal to grant the purchaser a lease, and demand to vacate lot 383, immediately forced her to sell her mobile home at a $10,300 loss. That loss, Ms. Sonntag contends, resulted from the fact that a mobile home without a lot is worth substantially less than one with a lot. But if Ms. Sonntag’s mobile home was worth substantially less without lot 383, then it was Ms. Sonntag’s own failure to pay rent, and the resulting judgment for possession, which deprived her of a lot, and not Whippletree’s demand that she vacate. The judgment for possession gave Whippletree a right to possession of lot 383, and although the stay order prevented enforcement of the judgment through legal channels, Whippletree was within its rights to demand that Sonntag leave immediately.

Ms. Sonntag argues that the stay of enforcement allowed her to remain on lot 383 until October 31, 1988, and thus she was a tenant within the meaning of the Mobile Home Act. We disagree. The judgment for possession terminated Ms. Sonntag’s rights to lot 383, and the stay was not entered to extend Ms. Sonntag’s rights. Rather, the stay was an administrative necessity, given the volume of judgments in Cook County that often imposes a delay of 30 days or more for enforcement by the sheriff’s office.

Even assuming the Mobile Home Act applied here, Ms. Sonntag failed to allege sufficient facts to show that Whippletree violated section 24. Ms. Sonntag alleged no facts showing that the purchaser was a qualified purchaser for the mobile home, who met the legal qualifications for entry to the park. Ms. Sonntag made no allegations that Whippletree’s rejection of the purchaser’s lease application was intended to frustrate the sale of her mobile home or that Whippletree’s rejection of the purchaser was based on unlawful qualifications for entry to the park. In the absence of sufficient factual allegations showing a violation of section 24, dismissal of the complaint was proper. Accordingly, we affirm.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PEGGY AUSTIN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—85—2583
    Opinion filed December 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Jack M. O’Malley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., James E. Fitzgerald, and Colleen A. Hyland, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Peggy Austin, was convicted of murder by a jury and sentenced to serve 30 years in prison. This court reversed her conviction and remanded the case for a new trial, holding that the trial court erred in refusing defendant’s tendered jury instruction on voluntary manslaughter. (People v. Austin (1988), 170 Ill. App. 3d 1047, 524 N.E.2d 1063.) The Illinois Supreme Court reversed this court’s decision and remanded the case for consideration of the other issues raised on appeal. (People v. Austin (1989), 133 Ill. 2d 118, 549 N.E.2d 331.) Upon remand, the defendant argues that (1) the trial court erred in refusing her tendered jury instruction on involuntary manslaughter; (2) the trial court erred in permitting the prosecution to elicit evidence regarding the type of bullet recovered from her gun; and (3) the trial court abused its discretion in sentencing her to a term of 30 years’ imprisonment. We reverse and remand for a new trial.

The facts of this case have been set out fully in both the earlier appellate and supreme court opinions. Thus, for our purposes, we will only discuss the evidence relevant to our decision. On February 13, 1984, defendant boarded a Chicago Transit Authority (CTA) bus at the intersection of 74th Street and Ashland Avenue in the City of Chicago. Defendant deposited a 40 cent fare token into the fare box and displayed a student bus pass. The bus driver informed defendant that the pass was not valid because it was a school holiday. Defendant told the driver that she was only going a short distance and asked if she could remain on the bus. The bus driver told defendant that because it would be unfair to passengers who paid full fare to allow defendant to remain on the bus, she would either have to pay full fare, leave the bus, or be removed. Defendant dropped an additional 40 cents into the fare box, but the bus driver told her that it was not enough. At this point, defendant had paid 80 cents of the $1 fare. Defendant did not have any more money, and she asked for a transfer, which would have allowed her to board connecting buses or trains without paying another fare. According to defendant, the bus driver responded, “No, just get the hell off the bus.”

Defendant testified that when she attempted to reach for a transfer, the bus driver hit her hand with a metal transfer punch, and she responded by striking the driver in the face. Three State witnesses, however, testified that defendant struck the first blow when she slapped the bus driver in the face. Defendant testified that the bus driver retaliated by hitting her on the forehead with the transfer punch. Thereafter, defendant and the bus driver stood face to face and exchanged blows for approximately 30 to 40 seconds. At some point in the fight, defendant pulled a gun from her side pant pocket. Defendant testified that she pulled the gun to “scare” the bus driver.

Thereafter, the bus driver slapped or grabbed defendant’s wrist, and, in the struggle, defendant fired a shot into the floor of the bus. Several of the bus passengers ducked down to the floor or rushed to exit through the rear bus door. The momentum of defendant and the bus driver’s struggle allowed the driver to force defendant off the bus. After the parties were outside the bus, a second shot was fired, killing the bus driver. The entire fight lasted about two to three minutes. According to defendant, after they exited the bus, the bus driver tried to grab the gun, she jerked it away and it went off. Defendant testified that she did not pull the hammer back with her thumb and that she did not recall pulling the trigger. Two bus passengers testified that after defendant and the bus driver exited the bus, they were standing approximately 12 inches apart when defendant fired the second shot striking the bus driver in the chest.

Defendant first argues that the trial court erred in refusing her tendered jury instruction on involuntary manslaughter. We agree.

A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a); Illinois Pattern Jury Instructions, Criminal, No. 7.07 (2d ed. 1981).) A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.) Murder and the lesser included offense of involuntary manslaughter are distinguished only in terms of the mental state required. Murder requires the intent to kill or do great bodily harm or knowledge that the acts create a strong probability of such result, while involuntary manslaughter requires only reckless conduct which causes death. (People v. Cowen (1979), 68 Ill. App. 3d 437, 441, 386 N.E.2d 435, 438-39.) If there is some evidence in the record which would reduce the crime to involuntary manslaughter, the defendant is entitled to an instruction defining the lesser offense. People v. Santiago (1982), 108 Ill. App. 3d 787, 802, 439 N.E.2d 984, 994.

It is defendant’s theory that she and the bus driver struggled over a gun defendant pulled out during a fight. The gun went off during the scuffle. Defendant testified that the bus driver tried to grab the gun, she jerked it away, and it went off. Defendant did not recall either pulling back the hammer or pulling the trigger of the gun. Under the circumstances, we believe there was some evidence, if believed, that defendant unintentionally caused the death of the decedent by acts which were performed recklessly and likely to cause death or great bodily harm. We therefore conclude that defendant was entitled to an instruction defining the offense of involuntary manslaughter. At the new trial, if the evidence on the issue is at least the same, defendant should be entitled to have the jury instructed on the offense of involuntary manslaughter.

Defendant also argues that the trial court erred in permitting the prosecution to elicit evidence regarding the type of bullet recovered from her gun. Because this issue may arise again upon retrial, we address it now.

The pertinent portions of testimony follow:

“PROSECUTOR: *** Well, would you describe one of the live rounds that was People’s Exhibit 8. Could you describe that round of ammunition to the jury?

WITNESS: This a .38 special caliber live round of ammunition loaded with a hollow point bullet and loaded to higher pressures which is what the plus P stands for and a standard .38 special round of ammunition.

PROSECUTOR: Is plus P loaded ammunition a target practice bullet?

WITNESS: No, sir.

PROSECUTOR: Are the three exhibits, the live bullets that you have in front of you, are they authorized ammunition for Chicago Police Officers?

WITNESS: No, sir.

PROSECUTOR: Are there any sanctions upon police officers if they use that type of ammunition?

DEFENSE ATTORNEY: Objection.

* * *

THE COURT: All right. Your objection is overruled. He can clear it up.

* * *

PROSECUTOR: Do you know of your own knowledge whether or not police officers, Chicago Police Department Officers are authorized to use that type of ammunition?

WITNESS: I am familiar with all the general orders and rules and regulations concerning what is authorized ammunition for the Chicago Police Department Officers.

PROSECUTOR: Is that authorized ammunition?

WITNESS: No, sir.

PROSECUTOR: Are there sanctions against the Chicago Police Officer should they use that type of ammunition?

DEFENSE ATTORNEY: I object to that question, Judge.

THE COURT: All right. He may answer. Your objection is overruled.

WITNESS: I know violation of general orders carries sanctions. I am now [sic] aware of what sanctions.”

The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged, and whether what is offered as evidence will be admitted or excluded depends upon whether it tends to make the question of guilt more or less probable, i.e., whether it is relevant. (People v. Ward (1984), 101 Ill. 2d 443, 455, 463 N.E.2d 696, 702.) Further, the admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion. Ward, 101 Ill. 2d at 455-56.

Defendant argues that evidence regarding the type of bullets used in her gun should not have been introduced at trial because it was irrelevant and allowed the State to improperly infer that defendant had an intent to kill based on the fact that her weapon was loaded with hollow point bullets. Defendant, however, testified at trial that she purchased the bullets only because she was told that they were “silver bullets.” In light of the offense charged, the State was properly allowed to introduce evidence of the type of weapon and ammunition used by defendant during the commission of that offense. Any inference that defendant intended to kill or do great bodily harm to the victim was rebutted by the introduction of defendant’s testimony regarding her reasons for carrying a weapon and purchasing that particular ammunition. Under these circumstances, we find no error in the trial court’s admission of evidence on the subject of the type of ammunition used by defendant.

Defendant also argues that the trial court abused its discretion in sentencing her to a term of 30 years’ imprisonment. In view of our conclusion that defendant is entitled to a new trial for the reasons we have stated, we need not decide the sentencing issue raised by defendant.

Accordingly, the judgment of conviction is reversed, and the case is remanded for a new trial.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.


text:
    GAST MONUMENTS, INC., Plaintiff-Appellant, v. ROSEHILL CEMETERY COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—3790
    Opinion filed December 26, 1990.

      Samuel A. Kavathas, Jr., of Chicago, for appellant.
    Dan K. Webb, Steven F. Molo, and Julie A. Bauer, all of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Gast Monuments, Inc., filed a quo warranto proceeding challenging defendant Rosehill Cemetery Company’s right to sell headstones, burial markers and monuments for use in Rosehill Cemetery in Chicago, Illinois. The trial court entered summary judgment in favor of defendant. We affirm.

In 1859, the Illinois legislature adopted the Rosehill Charter, which created the original Rosehill Cemetery Company (Original Rose-hill), as a not-for-profit corporation. At that time, corporations could only be formed by a special act of the legislature. Corporations that were created by a special act of the legislature are known as special charter corporations. The legislation creating a special charter corporation delineated the specific activities in which the corporation could engage, and on occasion, the legislation granted special privileges to the corporation.

The Rosehill Charter granted the Original Rosehill the right to acquire real estate and to maintain a cemetery on the real estate. The Rosehill Charter also provided that the land actually used by the Original Rosehill for burial purposes, and which shall have been platted and recorded as cemetery grounds, shall be tax exempt. In 1863, the Rosehill Charter was amended, granting the Original Rosehill the power of eminent domain for the condemnation of adjoining lands to enlarge the cemetery. See “An Act to Incorporate the Rosehill Cemetery Company,” Sec. 11 (1863); People ex rel. J.H. Anderson Monument Co. v. Rosehill Cemetery Co. (1954), 3 Ill. 2d 592, 597, 122 N.E.2d 283, 286.

In 1983, defendant was incorporated as a for-profit corporation pursuant to the Illinois Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.), under the name of Rosehill Memorial, Inc. Article 4 of the articles of incorporation for Rosehill Memorial, Inc., provides that the corporation is organized for the purposes of transacting “any or all lawful businesses for which corporations may be incorporated under the Business Corporation Act.”

Shortly after it was incorporated, in 1983, Rosehill Memorial, Inc., purchased the assets of the Original Rosehill pursuant to an asset purchase agreement and took over operation of Rosehill Cemetery. Following the sale of its assets, in 1983, the Original Rosehill changed its name to the Rosehill Liquidation Corporation. In November 1983, Rosehill Memorial, Inc., changed its name to the defendant’s present name, Rosehill Cemetery Company. The Rosehill Liquidation Corporation was dissolved in 1987. The lawful dissolution of the Rosehill Liquidation Corporation is not disputed. Thus, the not-for-profit corporation that was created pursuant to the Rosehill Charter no longer exists, although the Rosehill Charter was never repealed.

Defendant sells headstones, burial markers and monuments at Rosehill Cemetery for use in Rosehill Cemetery. The sales are made on a portion of defendant’s property which is set aside for such sales. Plaintiff also sells headstones, burial markers and monuments, but from a location across the street from Rosehill Cemetery. Thus, plaintiff competes with defendant for the sale of the same articles for use in Rosehill Cemetery. Plaintiff, therefore, filed this quo warranto proceeding. Plaintiff’s theory is that defendant’s sales of headstones, burial markers and monuments are unlawful because of the Rosehill Charter. We disagree.

We first address the question of whether defendant receives any special benefits as a result of the Rosehill Charter. The designated portion of the property upon which defendant sells headstones, burial markers and monuments for use in Rosehill Cemetery is not tax exempt, and defendant does not now claim that the property so designated is tax exempt. The land used by defendant exclusively as graveyards or grounds for burying the dead is tax exempt. In Illinois, “all lands used exclusively as graveyards or grounds for burying the dead” are exempt from taxes. (Ill. Rev. Stat. 1987, ch. 120, par. 500.3.) Thus, defendant’s property that is tax exempt is not tax exempt as a result of the Rosehill Charter, but rather the tax exemption is pursuant to a statute which applies to all cemetery associations and corporations regardless of how they are formed. Plainly, defendant enjoys no tax exemptions, eminent domain powers or other privileges not enjoyed by other corporations that are incorporated under the Business Corporation Act.

Plaintiff next contends that defendant’s acts violate the Rose-hill Charter. Plaintiff’s contention is misfocused. Defendant does not obtain the right to sell headstones, burial markers and monuments as a result of the Rosehill Charter. Rather, defendant obtains that right by virtue of its articles of incorporation under the Business Corporation Act, which provide that defendant was organized for the purposes of transacting any and all lawful businesses for which corporations may be incorporated under the Business Corporation Act. Under the provisions of the Business Corporation Act, a corporation may be organized for the purpose of operating a cemetery and selling headstones, burial markers and monuments, and there is no prohibition therein against the conducting of both activities by a single corporation. (See People ex rel. Guettler v. Mount Olive Cemetery Association (1962), 26 Ill. 2d 156, 157-58, 186 N.E.2d 39, 41.) It follows that the Rosehill Charter is not a factor in determining whether defendant can lawfully sell headstones, burial markers and monuments for use in Rosehill Cemetery.

Plaintiff relies upon People ex rel. J.H. Anderson Monument Co. v. Rosehill Cemetery Co. (1954), 3 Ill. 2d 592, 122 N.E.2d 283. In that case, Anderson sold burial markers and monuments across the street from the main entrance to Rosehill Cemetery. Anderson filed a quo warranto proceeding against the Original Rosehill, which at the time existed and was operating under the Rosehill Charter, and not under the Business Corporation Act. Anderson alleged that the Original Rosehill’s sale of burial markers and monuments exceeded its powers under the Rosehill Charter. The Original Rosehill argued that the power to own and operate a cemetery carried with it the implied power to sell burial markers and monuments. In support of its argument, although it was not incorporated under the Business Corporation Act, the Original Rosehill relied on cases decided under the Business Corporation Act which hold that corporations may do all things convenient, suitable or necessary for performing the business designated in their articles of incorporation. The court rejected the Original Rosehill’s argument, and stated:

“It is also contended that the authority to own and operate a cemetery carries with it the implied power to offer for sale and sell monuments. Reference is made to the Illinois Business Corporation Act and many cases are cited to the effect that a corporation may do all things convenient, suitable or necessary to enable it to perform the business designated in the charter. *** These cases and many others are eminently correct, but they deal with implied powers of corporations which are not in the preferred class of the defendant. Rosehill is a g-itasi-public corporation with the right of eminent domain. [Citation.] It has certain other privileges not enjoyed by business corporations, including exemption from taxes. [Citation.] As a consequence, its powers should be strictly construed lest it be put in such a preferred position as to constitute a menace to free enterprise.” People ex rel. J.H. Anderson Monument Co. v. Rosehill Cemetery Co. (1954), 3 Ill. 2d 592, 597-98, 122 N.E.2d 283, 286.

In contrast with the Original Rosehill, which was a special charter corporation, the defendant in the present case has no privileges that are not shared by other corporations formed under the Business Corporation Act. Here, if the defendant has an exemption from taxes, it has such exemption only to the same extent that it applies to all other corporations that are bound by the Business Corporation Act and which own and operate cemeteries in Illinois. The same is true with respect to any power of eminent domain that may or may not exist for such corporations that are bound by the Business Corporation Act.

It is therefore clear that the Anderson case is not applicable to the present case. The Anderson case involves only the scope of the powers of the Original Rosehill under the Rosehill Charter. In Anderson, the court held that the Original Rosehill, which had special privileges not enjoyed by other corporations, could not sell burial markers and monuments for profit because it was not expressly authorized to do so by the Rosehill Charter. The Anderson case does not hold that such articles could not be sold by a corporation created under the Business Corporation Act.

Plaintiff next contends that defendant succeeded to all the restrictions in the Rosehill Charter because the Rosehill Charter provided that the Original Rosehill shall have perpetual succession. We disagree. The Rosehill Charter states:

“Section 1. That William B. Ogden, Charles G. Hammond, *** and such others as they may hereafter associate with themselves, be, and they are hereby created a body politic and corporate, in fact and in name, by the style and title of the ‘Rose-hill Cemetery Company,’ and by that name shall have perpetual succession, and be capable of suing and of being sued, of contracting and being contracted with, of pleading and being impleaded, in any Court of law and equity in the State of Illinois: and they and their successor may have a common seal, and make and alter the same at pleasure, and do such other things as are incident to a corporation and not inconsistent with the Constitution of the State of Illinois.”

Perpetual succession is not unique to the Rosehill Charter or cemetery corporations. The Business Corporation Act provides:

“General powers. Each corporation shall have power:
(a) To have perpetual succession by its corporate name ***.
(b) To sue and be sued, complain and defend, in its corporate name.
(c) To have a corporate seal which may be altered at pleasure ***.
(h) To incur liabilities; *** and to make contracts ***.
* * *
(r) To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is formed.” Ill. Rev. Stat. 1989, ch. 32, pars. 3.10(a), (b), (c), (h), (r).

The perpetual succession and pertinent language that is stated in the Rosehill Charter is similar to the perpetual succession and pertinent language that is stated in the Business Corporation Act. Contrary to plaintiff’s contention, perpetual succession merely means that a corporation has an artificial life which extends beyond the natural lives of its incorporators, officers and directors. (See Black’s Law Dictionary (5th ed. 1979).) Perpetual succession does not preclude a corporation from terminating its artificial life by dissolving, as the Original Rosehill did in the present case. (See 16A W. Fletcher, Private Corporations §8006 (rev. ed. 1988).) In addition, it does not mean that the restrictions or privileges in the incorporating document continue in perpetuity after the corporation has ceased to exist.

Plaintiff also contends that defendant does not have the legal right to sell headstones, burial markers and monuments because of “Chapter 21 of Ill. Rev. Stat., Section 29, which refers to the transfer of ownership by cemeteries that were organized under a Special Act.” Plaintiff argues: “This section states that a corporation may convey ownership ‘for burial purposes only.’ The section does not mention the sale of memorials. Therefore, when Defendant purchased the assets of Rosehill Cemetery it was limited to burial purposes only which does not include the sale of memorials.” Plaintiff’s interpretation of the statute is strained and without merit.

Chapter 21 contains: “An Act to provide for the dedication of land for cemetery purposes.” (Ill. Rev. Stat. 1989, ch. 21, par. 1 et seq.) Section 1 of “An Act in relation to cemeteries” provides:

“Extent of ownership
§1: All cemetery associations, or companies incorporated for cemetery purposes, by any general or special law of this State may acquire by purchase, gift or legacy, and may hold, own and convey for burial purposes only, so much land as may be necessary for use as a cemetery or burial place for the dead.” (Ill. Rev. Stat. 1989, ch. 21, par. 29.)

Plainly, the words “for burial purposes only” in section 1 do not mean burial only. There is a difference between burial and burial purposes. The word “burial” is restricted to the act of interment. “Burial purposes,” however, is not merely the interment itself, but rather encompasses acts that are intrinsic to the operation of a cemetery. These acts logically include grave marking, continuing care, the preservation and decoration of the place of interment, and the sale, purchase and placement of headstones, burial markers and monuments. See generally People v. Rosehill Cemetery Co. (1939), 371 Ill. 510, 516, 21 N.E.2d 766, 770.

Our conclusion is supported by the context and legislative intent of the statutes. Clearly, the words “for burial purposes only” in section 1 must be read in conjunction with the words “for use as a cemetery.” (Ill. Rev. Stat. 1989, ch. 21, par. 29.) Indeed, the statute expressly states that it is an act “to provide for the dedication of land for cemetery purposes.” (Ill. Rev. Stat. 1989, ch. 21, par. 1.) Thus, the context of the statute demonstrates that the legislative intent of the statute is to allow cemetery associations, or companies incorporated for cemetery purposes, to own, use and convey land for interments and related acts that are intrinsic in the operation of a cemetery, which include the sale, purchase and placement of headstones, burial markers and monuments. We therefore find no merit in plaintiff’s contention.

Plaintiff also contends that “the restriction to sell memorials is a covenant that runs with the land” under the Rosehill Charter. To support its contention, plaintiff relies upon Fairways of Country Lakes Townhouse Association v. Shenandoah Development Corp. (1983), 113 Ill. App. 3d 932, 447 N.E.2d 1367. The Fairways case, however, is plainly not applicable here since it involved solely the question of whether a restrictive covenant between private citizens ran with the land. The alleged restrictions in the Rosehill Charter, to the extent that they exist, were enacted by the legislature. The principles dealing with restrictive covenants between private citizens, and whether such restrictive covenants run with the land, have no application here.

Moreover, corporate powers and purposes do not run with the land, but rather depend on the particular corporation’s articles of incorporation. Although the defendant has the same name as the Original Rosehill that was incorporated under the Rosehill Charter, it is a separate and distinct corporate entity organized pursuant to the Business Corporation Act, and its powers and purposes are determined by its articles of incorporation.

There has been no consolidation or merger of the Original Rosehill and the defendant; and the defendant’s existence is not a continuation of the Original Rosehill. The Original Rosehill changed its name to Rosehill Liquidation Corporation and was dissolved. Defendant is a separate and distinct corporation pursuant to the Business Corporation Act, and it must be regulated and treated as such for all purposes. See Fairways, 113 Ill. App. 3d at 936-37.

Accordingly, plaintiff’s quo warranto proceeding challenging defendant’s right to sell headstones, burial markers and monuments for use in Rosehill Cemetery is without merit as a matter of law. The trial court therefore properly entered summary judgment in favor of the defendant. The summary judgment is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    IRVING BRONSTEIN, Plaintiff-Appellant, v. INA LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—1329
    Opinion filed December 26, 1990.

      John Thomas Moran, Jr., of Chicago, for appellant.
    Michael K. Lulich, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Irving Bronstein filed a declaratory judgment action seeking a declaration that he is entitled to increased benefits pursuant to a certificate of insurance issued by defendant INA Life Insurance Company of North America under a group accidental death and dismemberment policy. The trial court entered summary judgment in favor of defendant. We affirm.

Plaintiff is an attorney and a member of the Illinois State Bar Association. The Illinois State Bar Association sponsored an accidental death and dismemberment group plan of insurance issued by defendant. Plaintiff applied and was accepted for coverage under the group plan and was issued a certificate of insurance with an effective date beginning February 1, 1983 (First Certificate). The First Certificate provides that in the event the plaintiff suffers a “loss resulting directly and independently of all other causes from bodily injuries caused by accident while the policy is in force as to” the plaintiff, the defendant will pay him monthly installment payments of 1% of a principal sum of $10,000. Plaintiff was involved in an accident on November 6, 1984, and he became disabled as of that date in accordance with the terms of the First Certificate. Thereafter, defendant began paying plaintiff monthly installments of 1% of the principal sum of $10,000 pursuant to the terms of the First Certificate.

In January 1988, through its authorized agent, defendant authorized a mailing to all members covered under defendant’s accidental death and dismemberment group policy. The letter sent by defendant’s authorized agent states: “Life Insurance Company of North America, the underwriting company, has arranged to add an additional $25,000 to your Accidental Death & Dismemberment coverage with no application or medical questionnaire required. To increase your benefit by $25,000, simply pay the premium amount indicated with an asterisk (*), and you will be mailed a Certificate evidencing the increase.”

Plaintiff responded to the above letter by paying the premium amount indicated with an asterisk and was mailed a new certificate of insurance. The new certificate of insurance was issued with an effective date of February 1, 1988 (Second Certificate), and it provides for payment of monthly installments of 1% of the principal sum of $35,000 in the event the plaintiff suffers a “loss resulting directly and independently of all other causes from bodily injuries caused by accident while the policy is in force as to” the plaintiff.

Defendant continues to pay plaintiff monthly installment payments of l%of the principal sum of $10,000 as provided under its First Certificate, which was issued with the effective date of February 1, 1983. Plaintiff, however, contends that he is now entitled to be paid monthly installment payments of 1% of the principal sum of $35,000 as provided under defendant’s Second Certificate, which was issued with the effective date of February 1, 1988. We disagree with plaintiff’s contention.

Plaintiff argues that he is entitled to recover the amounts provided for under the Second Certificate, rather than the First Certificate, because the Second Certificate does not contain an exclusion regarding preexisting injuries and conditions. Plaintiff’s argument is misfocused because this case does not involve an exclusion under the Second Certificate, rather it involves coverage under the Second Certificate. The effective date of coverage for the Second Certificate is February 1, 1988. This necessarily means that the event which triggers coverage under the Second Certificate must have occurred on or after February 1, 1988. Since plaintiff’s accident and disability occurred prior to February 1, 1988, his disability is not covered under the Second Certificate.

When the terms of an insurance contract are clear and unambiguous, as in all other contracts where the terms are clear and unambiguous, it is the duty of the court to enforce the terms according to their plain meaning. (See Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 418 N.E.2d 744; Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. of North America (1952), 411 Ill. 325, 104 N.E.2d 250.) Here, the terms of the Second Certificate are clear and unambiguous. The plain meaning of the effective date that appears on the Second Certificate is that no coverage is afforded for accidents or injuries that occurred or existed prior to that time. It follows that it is this court’s duty to hold that plaintiff’s accident and disability, both of which occurred prior to February 1, 1988, are not covered under the Second Certificate. Plainly, there is no merit to plaintiff’s argument.

Plaintiff also argues that “because terms and provisions of the new certificate are identical to the original, *** the new certificate should be deemed a single, continuing contract and the new limits applied to injuries which occurred after the date of the original certificate on February 1, 1983.” Plaintiff’s argument fails because on February 1, 1988, defendant’s contract with plaintiff was different than the previous contract in two material and substantial aspects. First, the effective date of insurance coverage changed from February 1, 1983 to February 1, 1988, and second, the principal sum used to compute any disability payment that would be required to be paid changed from $10,000 to $35,000. Clearly, it cannot be gainsaid that the contract under the Second Certificate required the offer and acceptance of a new effective date, policy limit and premium. Thus, the terms and provisions of the Second Certificate are not identical to the First Certificate. There are material and substantial differences.

The insured has the obligation to plead and prove that his loss is within the terms and provisions of the insurance contract. (See Miner v. Bray (1987), 160 Ill. App. 3d 241, 244, 513 N.E.2d 580, 582; Yates v. Bankers Life & Casualty Co. (1953), 415 Ill. 16, 19, Ill N.E.2d 516, 517.) Since the pleadings and exhibits in this case are not sufficient to raise a factual issue as to whether the plaintiff’s loss is covered under the Second Certificate, the trial court properly entered summary judgment in favor of the defendant.

Accordingly, the summary judgment entered in favor of the defendant is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE WOODWARD JUSTICE GEIGER,

text:
    LOIS E. WILLIAMS, Plaintiff-Appellant, v. LINCOLN TOWER ASSOCIATES et al., Defendants-Appellees.
    Second District
    No. 2—89—1367
    Opinion filed January 24, 1991.

      GEIGER, J., dissenting.
    Harold L. Turner, of Turner & Shoemaker, and Street, Larson & Turner, both of Rockford (Joseph G. McGraw, of counsel), for appellant.

      Bruce C. Erickson and William M. Goff, both of Mateer & Erickson, of Rockford, and Holmstrom & Kennedy, of Crystal Lake (Frederic T. Brandt, of counsel), for appellee Lincoln Towers Associates.
    Mateer & Erickson, of Rockford (William M. Goff, of counsel), for appellee Donewald Property Management, Inc.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Lois E. Williams, appeals from an order of the circuit court of Stephenson County, dismissing her third amended complaint for failing to state a cause of action against the defendants, Lincoln Tower Associates (Lincoln) and Donewald Property Management, Inc. (Donewald).

In her third amended complaint, plaintiff alleged that she is 79 years of age and suffers from Parkinson’s disease. Due to her economic situation, she resides in a federally subsidized apartment in a building for the elderly owned by Lincoln and managed by Donewald. Lincoln prescribed both written and oral rules for the tenants of the building. One of the oral rules required that the tenants remove the snow from their vehicles before the parking lot of the building was plowed. On December 28, 1987, a “floor captain” informed plaintiff and the other tenants that the snowplow was about to arrive. At approximately 11 a.m. on that date while removing the snow from her vehicle, plaintiff slipped on the icy pavement surrounding her vehicle, causing her to fall and fracture her right hip. Specifically, plaintiff alleged in her third amended complaint that defendants were guilty of negligence in that they:

“Required elderly tenants to remove snow from their vehicles before the parking lot was plowed when [they] knew or should have known that due to advancing years, said tenants were more susceptible to falling and injuring themselves on ice and snow.”

Finally, plaintiff alleged damages as a result of her injury.

The defendants filed motions to dismiss the third amended complaint on the ground that the complaint failed to allege facts which establish a duty on the part of the defendants. Following a hearing, the trial court dismissed the third amended complaint, and this appeal followed.

The sole issue on appeal is whether the third amended complaint states a cause of action.

Plaintiff contends, first, that the “natural accumulation rule” should not be construed so as to negate the defendants’ duty to exerelse due care to maintain the parking lot in a reasonably safe condition.

Early on our supreme court established the rule that a landlord has the duty of exercising reasonable care to keep the premises over which he has control for the common use of the tenants in a reasonably safe condition and that such a landlord is liable for an injury which results to persons, lawfully in such place, from a failure to perform such duty. (Murphy v. Illinois State Trust Co. (1940), 375 Ill. 310, 313-14.) In Cronin v. Brownlie (1952), 348 Ill. App. 448, this court reversed a judgment for a plaintiff who was injured when she slipped on some ice and fell while walking on a sidewalk owned and maintained by the defendant. The evidence showed that snow but not the ice had been removed from the sidewalk. The evidence also showed that plaintiff, a tenant in defendant’s building, was fully aware of the icy condition of the sidewalk and attempted to walk on it at night, wearing dress shoes with high heels. After noting that the authorities throughout the country were divided on the issue, this court chose to follow the majority or “Massachusetts rule” that a landlord has no legal duty to remove snow and ice from areas used jointly with his tenants when the ice and snow accumulate from natural causes. Cronin, 348 III. App. at 456-57.

The rule articulated in Cronin continues to be the rule followed today in Illinois. (Burke v. City of Chicago (1987), 160 Ill. App. 3d 953, 956.) There are, however, exceptions to this rule. In order for a landlord to be liable, it must be shown that he has in some way caused an unnatural accumulation of ice and snow or that he aggravated a natural condition. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 486; see also Durkin v. Lewitz (1954), 3 Ill. App. 2d 481.) Liability can arise if the landlord undertakes to remove the snow and ice from his property and does so negligently. (Williams, 114 Ill. App. 3d at 486.) Liability may also arise where the landlord has assumed the duty to remove snow and ice by contract with the tenant. However, even where a contract exists, a duty cannot be imposed where the precipitation is recent or continuous. See Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 643-45.

As we have previously stated, subject to certain exceptions, the “natural accumulation rule” still applies in Illinois. To avoid the effect of this rule, plaintiff must plead one of the exceptions carved from the rule. Plaintiff must plead that defendants caused an unnatural accumulation of snow or aggravated a natural condition; that defendants undertook to remove the snow and ice and did so negligently; or that defendants had a contractual obligation with the plaintiff to remove snow and ice and a reasonable amount of time had passed during which the defendants should have removed the accumulated snow and ice.

In her third amended complaint, plaintiff does not allege any contractual obligation with the plaintiff or other tenants of the building on the part of the defendants to remove the snow and ice from the parking lot. Nor does plaintiff allege that defendants caused an unnatural accumulation of snow which aggravated a natural condition. Although plaintiff does allege that the defendants were negligent in requiring their elderly tenants, such as the plaintiff, to remove the snow from around their vehicles, she alleged that her participation in removal of snow from her vehicle in the parking lot was what actually caused her to fall, not that the defendants’ snow removal was done negligently. We are of the opinion that, since plaintiff failed to plead an exception to the “natural accumulation rule,” the trial court properly dismissed the third-party complaint for failing to state a duty owed to the plaintiff by the defendants.

We are also of the opinion that the exceptions to the “natural accumulation rule” demonstrate that the rule continues to provide exemptions from liability which are, in fact, in keeping with the requirements of modern day living. We therefore reject plaintiff’s second argument that the “natural accumulation rule” must be rejected as an anachronism of the common law and violative of public policy.

Finally, plaintiff contends that assuming the continued viability of the “natural accumulation rule,” defendants owed a separate duty of ordinary care to the plaintiff because they coerced her participation in the snow removal process as a condition of her continued tenancy. Whether the law imposes a duty does not depend on foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant must also be taken into account. Lance v. Senior (1967), 36 Ill. 2d 516.

Plaintiff relies on Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231. In that case, plaintiff, a pledge of the fraternity, was required to participate in an initiation ceremony in order to become a member of the fraternity. As part of the ceremony, each pledge was required to consume large quantities of alcoholic beverages. Plaintiff participated in the ceremony and, as a result, had to be hospitalized.

In reversing an order dismissing Quinn’s third amended complaint and remanding the cause, the reviewing court stated:

“We agree with the case authorities holding that the furnishing of intoxicating beverages to underage persons, such as plaintiff, does not create a legal duty. We feel, however, that we are faced with a situation which consists of more than the mere furnishing of alcohol. The facts, as alleged in plaintiff’s amended complaint, describe a fraternity function where plaintiff was required to drink to intoxication in order to become a member of the fraternity. Even worse, according to the complaint, the alcohol content in plaintiff’s body was ‘at or near fatal levels.’ We cannot close our eyes to the fact that the abuse illustrated in the present case could have resulted in the termination of life and that plaintiff was coerced into being his own executioner. Therefore, we hold that a legal duty was created and the complaint states a cause of action in negligence.
It is true that plaintiff could have avoided the situation by walking away from the fraternity. In that respect, plaintiff’s actions in participating in the ceremony were voluntary. Yet, as the complaint alleges, membership in the defendant fraternity was a ‘much valued status.’ It can be assumed that great social pressure was applied to plaintiff to comply with the fraternity’s membership ‘qualifications,’ perhaps to the extent of blinding plaintiff to any dangers he might face. To the extent that plaintiff acted willingly, liability can be transferred to him under the principles of comparative negligence.
We do not allow a cause of action here without careful consideration of the nature of the duty. Using the factors found in Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231, we believe the burden of such a duty is rightly placed on defendant. When required to consume such large amounts of alcohol, it is foreseeable and likely that injuries will occur. Even the injury alleged here is foreseeable. It is a small burden to guard against such injuries. The activity was clearly an illegal hazing activity and discouraged by defendant’s own parent organization. Finally, we can think of no better party to bear the burden of plaintiff’s injuries than the one that required him to sustain them. The result is then predictable. A fraternal organization, held in high esteem, is to be liable for injuries sustained when requiring those seeking membership to engage in illegal and very dangerous activities.” (Quinn, 155 Ill. App. 3d at 237.)

The reviewing court went on to state that a cause of action existed in Quinn for two reasons, namely, the fact that plaintiff was required to drink to intoxication and because the legislature had enacted a statute against hazing.

Defendants contend that plaintiff failed to allege in her third amended complaint that she was “coerced” into participating in the snow removal activity by the threat of losing her federally subsidized apartment. We agree. At best, plaintiff’s allegations indicate that she complied with the snow removal rule because she was concerned that her failure to follow the rule might cause her to lose her apartment; however, she makes no allegations that the defendants had threatened to terminate her tenancy if she did not cooperate.

Defendants also contend that Quinn is distinguishable from the case at bar. Defendants argue that the court decided Quinn on the basis that, since there existed an antihazing statute designed to protect a person such as Quinn and that Quinn had suffered a type of harm that the statute was supposed to protect against, it was prima facie evidence of negligence without which there was no cause of action for negligence.

After reviewing plaintiff’s third amended complaint, we agree with defendants that the complaint does not specifically allege that she would lose her apartment if she failed to follow the rule regarding snow removal. Plaintiff does allege that she complied with her floor captain’s demand that she participate in the snow removal because “she was very desirous of maintaining a protected place to live as well as her federally rent subsidized apartment.” Whatever plaintiff may have thought would be the consequence of her refusal to remove the snow from around her car does not control here. Nowhere does she allege that defendants would have terminated her tenancy as a consequence for her failure to participate in the snow removal process. This is unlike the situation in Quinn, for there plaintiff alleged that in order to become a member of the fraternity, he had to participate in the ritual which ultimately caused him to be injured.

Quinn is also distinguishable from the case at bar because one basis for establishing a cause of action in that cause was the existence of a statute, i.e., antihazing statute. As the court in Quinn noted:

“The supreme court has stated: ‘ “[T]he violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence.” ’ [Citations.] In order to sustain such a cause of action, two conditions must be met: ‘first, the plaintiff must be within the class of persons the ordinance was designed to protect; and second, the plaintiff must have suffered the type of harm the ordinance was designed to prevent.’ [Citations.] In the instant case, we find the plaintiff was in the class of persons the statute was designed to protect. The allegations in the complaint allege sufficient facts to establish that he suffered a type of harm the statute was designed to prevent.” (Emphasis added.) Quinn, 155 Ill. App. 3d at 238.

In order to bring her third amended complaint within the requirement of Quinn, plaintiff cites several statutes which she argues either impose a duty and hence liability on the defendants in this case, or, at the very least, express a public policy favoring the imposition of such a duty and liability upon the defendants. We disagree.

Plaintiff cites the criminal housing management statute which provides, in pertinent part, as follows:

“A person commits the offense of criminal housing management when, having personal management or control of residential real estate, whether as a legal or equitable owner or as a managing agent or otherwise, he recklessly permits the physical condition or facilities of the residential real estate to become or remain in any condition which endangers the health or safety of any person.” (Ill. Rev. Stat. 1989, ch. 38, par. 12— 5.1.)

.Plaintiff relies on Feldman v. Stein Building & Lumber Co. (1967), 6 Mich. App. 180, 148 N.W.2d 544. In that case, recovery for injuries suffered as a result of a fall on snow and/or ice was permitted based upon a duty created by a statute similar to the one cited above. The Michigan statute required landlords to keep the premises free from accumulations of garbage, dirt, rubbish, etc.

Defendants correctly point out that plaintiff’s third amended complaint did not allege that defendants recklessly permitted the condition of the premises to become or remain in any condition so as to endanger the health and safety of the plaintiff. Defendants also point out that in Gossman v. Lambrecht (1974), 54 Mich. App. 641, 221 N.W.2d 424, the Michigan court noted that the primary'holding in Feldman involved the validity of the exculpatory lease, and the case did not indicate whether it involved a natural or unnatural accumulation of ice. The Grossman court held that the statute at issue did not impose a duty on a landlord to remove natural accumulations of ice and snow.

The other statutes relied on by the plaintiff at best indicate a public policy to provide senior citizens with safe and sanitary housing. Those statutes do not protect against the type of harm suffered by the plaintiff in this ease.

The dissent in this case concludes that a legal duty was created when the defendants compelled the plaintiff to perform the physical act of snow removal. The dissent cites no additional authority but, instead, takes the position that the creation of such a duty is supported by the court’s reasoning in Quinn and, therefore, disagrees "with our conclusion that Quinn is distinguishable from the case at bar.

In Quinn, the court found that a legal duty existed based upon two elements: first, that the complaint alleged that unless Quinn participated in the initiation ceremony, he would not be permitted to join the fraternity; and second, that such an initiation ceremony violated the antihazing statute, which the court found was designated to protect a class of people to which Quinn belonged. Thus, under Quinn, plaintiff here would have to plead: first, that unless she participated in the snow removal process, she would have been evicted from her apartment; and second, that there existed a statute designed to protect a class of people to which plaintiff belonged from the conduct of the defendants in this case.

The dissent argues that the equivalent to the second requirement is not necessary in this case. Nothing in Quinn suggests that either requirement can be dispensed with when finding the existence of a duty under such cases. Moreover, even if we were to dispense with the second requirement, plaintiff still failed to plead that her failure to participate in the snow removal would result in the termination of her tenancy.

Plaintiff does not set forth the text of the apartment rule in her third amended complaint, nor does she plead that the penalty provided for in the rule for failure to participate in the snow removal was eviction. Moreover, contrary to the dissent’s argument, not all violations of apartment rules result in eviction.

Established case law compels the finding that no duty is owed by the defendants to the plaintiff under the pleadings in this case, and we are of the opinion that changes in established case law necessitated by public policy are more properly made by our supreme court.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN, J., concurs.

JUSTICE GEIGER,

dissenting:

I respectfully dissent. I cannot agree with the majority that this case presents a legal condition totally distinguishable from the precedent established by Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231. In that case, the Appellate Court for the Fourth District held that the defendants owed Quinn a duty of reasonable care where the defendant “pressured” Quinn by requiring him to consume alcoholic beverages past the point of intoxication before allowing him membership in their fraternity. (155 Ill. App. 3d at 237.) The court found that although Quinn’s participation was voluntary,

“membership *** was a ‘much valued status.’ It can be assumed that great social pressure was applied to plaintiff to comply with the fraternity’s membership ‘qualifications,’ perhaps to the extent of blinding plaintiff to any dangers he might face.” 155 Ill. App. 3d at 237.

The majority finds Quinn distinguishable since the plaintiff did not “specifically allege that she would lose her apartment if she failed to follow the rule regarding snow removal.” (207 Ill. App. 3d at 919.) They state that “[a]t best, plaintiff’s allegations indicate that she complied with the snow removal rule because she was concerned that her failure to follow the rule might cause her to lose her apartment.” 207 Ill. App. 3d at 919.

The record is clear that the requirement that tenants shovel snow was contained in a rule propounded by the landlord. The only authority that a landlord has for creating rules for tenants is that authority created by the landlord-tenant relationship. It was therefore reasonable for Mrs. Williams to believe that if she violated the snow-shoveling rule she would be in violation of her lease and thus jeopardize her tenancy. This apprehension was fostered by the fact that the landlord did not request elderly tenants to participate in snow removal. Rather, he created a rule which, by virtue of being a rule, implied that conformance was mandatory.

The plaintiff alleged in her third amended complaint that because she is poor, she resides in a federally subsidized apartment building “for the elderly.” Further, the plaintiff alleged that the defendants required that she and the other elderly tenants remove the snow from their vehicles before the parking lot was plowed. She complied only after the floor captain demanded that she participate in the snow removal and only because she “was very desirous of maintaining a protected place to live as well as her federally rent subsidized apartment.”

As the court held in Quinn, I would hold that a legal duty was created when the landlord compelled its tenants to perform the physical act of snow removal. That duty would include an evaluation of the risks presented by the working environment when considered in light of the physical condition, including age and infirmity, of the worker-tenants. In view of that duty, I would find that the plaintiff’s third amended complaint states a cause of action in negligence. A jury could find that the defendants should surely know that their elderly tenants could easily slip and fall on the snow-and ice-covered parking lot, if they were required to go out and shovel.

The plaintiff could have reasonably believed that she would be evicted for failure to comply with the defendants’ rules. Such a fear of eviction coerced the tenant to follow blindly the rules, even though she could be injured; the tenant could not effectively refuse to shovel her parking spot since the threat of eviction loomed over her head. Since I find that a duty was created by the actions of the landlord, the plaintiff has a right to have a jury determine if that duty was breached and if it was foreseeable that an elderly tenant under these conditions would slip, fall, and break a hip. See Quinn, 155 Ill. App. 3d at 237.

The Quinn court found two independent factors created the duty. First, the court considered the requirement that the plaintiff drink intoxicants; second, it considered the defendant fraternity’s violation of an antihazing statute to support the duty. I see no reason why the equivalent of the second factor should be necessary in this case. I would hold that the plaintiff’s complaint adequately alleges that the defendants owe her a duty of reasonable care. I therefore must respectfully dissent.