text:
    PEKIN INSURANCE COMPANY et al., Plaintiffs-Appellants, v. AMERICAN COUNTRY INSURANCE COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—2294
    Opinion filed May 3, 1991.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Scott O. Reed, of counsel), for appellants.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiffs Ulbrich & Associates, Inc. (Ulbrich), and its insurer Pekin Insurance Company (Pekin) filed a complaint for declaratory judgment against American Country Insurance Company (American Country), the insurer of S.J. Nitch Contractors (Nitch) and Transcontinental Insurance Company, the insurer of Monarch Construction Company. In their complaint, plaintiffs sought a judicial determination that the insurance certificates issued to Ulbrich provided liability coverage for personal injury claims by the respective insured’s employees. Plaintiffs’ claim against Transcontinental Insurance Company was voluntarily dismissed, and Transcontinental is not a party to this appeal. American Country then filed a motion for a judgment on the pleadings which the trial court granted. The issue on appeal is whether the trial court erred in failing to find an ambiguity or conflict between the certificate of insurance and the policy where the policy contained an exclusion for any damage or injury arising out of roofing work, and the certificate was issued to a general contractor at the request of a subcontractor engaged in roofing work.

Nitch, the insured of American Country, was a subcontractor of Ulbrich on a construction project in Barrington, Illinois. As part of its contract with Ulbrich, Nitch agreed to indemnify Ulbrich against all claims, damages, losses or expenses arising out of the subcontractor’s work on the project. In conjunction with this provision of the contract, Nitch had its insurer, American Country, provide Ulbrich with a certificate of insurance. The certificate identified Nitch as the primary insured, Ulbrich and the Lake Barrington project as additional insureds and American Country as the insurer. Under the heading “Type of Insurance,” one of the categories marked was commercial general liability. The policy numbers and dates of coverage were also on the certificate. In addition to this information, the certificate contained the following statement at the top of the document:

“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.”

The certificate also contained the following statement near the middle of the same page:

“THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICES DESCRIBED HEREIN IS SUBJECT TO ALL OF THE TERMS, EXCLUSIONS, AND CONDITIONS OF SUCH POLICES.”

Anthony Cargill, an employee of Nitch, sustained personal injuries while working on the construction project and filed a complaint against Ulbrich regarding these injuries. Ulbrich and its insurer Pekin then tendered the defense of the Cargill lawsuit to American Country. American Country refused to defend the suit, and in a letter to Ulbrich, American Country stated that the policy identified in the certificate contained the following exclusion:

“COMMERCIAL GENERAL LIABILITY COVERAGE This insurance does not apply to ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ arising out of ‘your work’ shown in the schedule.”

American Country further stated:

“The schedule which indicates the description of S. J. Nitch’s work indicates “roofing-construction residential or commercial.”

Pekin and Ulbrich then filed a complaint for declaratory judgment alleging that American Country should accept plaintiffs’ tender of defense because plaintiffs had relied on the representations in the certificate of insurance that Ulbrich was an additional insured on a policy issued to Nitch which was identified in the certificate. Plaintiffs were subsequently granted leave to amend their complaint to add the “tort plaintiff” Cargill as a party defendant. Several months later American Country filed a motion for a judgment on the pleadings, contending that no genuine issue of material fact was raised by the pleadings and that as a matter of law the Cargill claim was excluded from coverage. After hearing oral argument, the trial court granted American Country’s motion and entered a final judgment.

Plaintiffs contend that because the exclusions, terms or conditions of American Country’s insurance policy conflict with the plain meaning of the certificate, and plaintiffs were not provided with a copy of the policy or made aware of the exclusions, the coverage provided by the certificate should prevail. Plaintiffs claim that because the certificate named Ulbrich as an additional insured on a policy which provided commercial general liability insurance for the project, but the policy excluded coverage, there is a conflict between the two documents. Plaintiffs acknowledge that it was Nitch who promised to indemnify Ulbrich against any liability arising from Nitch’s roofing work on the Lake Barrington project and who breached this provision of the Ulbrich-Nitch contract by providing a certificate for a policy which excluded roofing work. However, plaintiffs claim that it is American Country rather than Ulbrich who should bear the risk of this breach. In support of their argument, plaintiffs rely on International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 532 N.E.2d 493, and J.M. Corbett Co. v. Insurance Co. of North America (1976), 43 Ill. App. 3d 624, 357 N.E.2d 125. In International Amphitheatre, the certificate of insurance contained an exclusion for claims arising from the nonappearance of performers and also stated that only indoor concerts were warranted. There were also two exclusions in the insurance policy which were not identified in the certificate. One exclusion limited coverage to the negligence of the named insured, and the other exclusion was for security and crowd control. The court concluded that the latter exclusions created an ambiguity in the agreement between the parties because the certificate was silent as to these exclusions, the additional insureds were not given a copy of the policy, and there was no showing that they were aware of the policy exclusions. The court also stated that there was no showing that the certificate was not part of the insurance contract and could not be relied on by the parties. Based on these facts, the court held that the uncertainty or ambiguity in the certificate and policy should be resolved in favor of the insureds. International Amphitheatre Co., 177 Ill. App. 3d at 569-70.

In J.M. Corbett Co. v. Insurance Co. of North America, the certificate contained the statement:

“It is understood and agreed that the Subcontractor will indemnify and save harmless the Contractor from and against any and all claims for injury or death to persons or damage to property *** in any matter caused by, arising from, incident to, connected with or growing out of work to be performed under this Contract, regardless of whether such claim is alleged to be caused, in whole or in part, by negligence, or otherwise, on the part of the Contractor or its employees.” (J.M. Corbett Co., 43 Ill. App. 3d at 625.)

The policy contained an exclusion for rented vehicles which was not indicated in the certificate, and the plaintiffs were not provided with a copy of the policy. The court held that the indemnity provision in the certificate conflicted with the exclusion provision of the policy and that when the two documents were read together an uncertainty existed which should be resolved in favor of the party indemnified. J.M. Corbett Co., 43 Ill. App. 3d at 626-27.

Although both of these cases are factually similar to the instant'case in some respects, the factor which distinguishes them from this case is the language in the certificate which states:

“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.”
“THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL OF THE TERMS, EXCLUSIONS, AND CONDITIONS OF SUCH POLICIES.”

Thus, unlike International Amphitheatre Co. and J.M. Corbett Co., there was a clear showing, based on the statements above, that the certificate was not part of the policy, and it conveyed no rights to the certificate holder. These statements also informed Ulbrich as a certificate holder that it had to look to the policy to determine the extent of coverage as well as any existing exclusions. J.M. Corbett Co. is further distinguishable because the certificate in that case contained the indemnity provision cited above which provided broad coverage in a variety of situations and conflicted with the exclusion provisions in the policy.

In this case, not only was there no such provision, but the certificate specifically stated that any contract for which the certificate was issued was “subject to all of the terms, exclusions, and conditions of such policies. ” (Emphasis added.)

Although plaintiffs argue to the contrary, we find Lezak & Levy Wholesale Meats, Inc. v. Illinois Employers Insurance Co. (1984), 121 Ill. App. 3d 954, 460 N.E.2d 475, most factually similar to this case. In Lezak & Levy, the certificate of insurance contained the same disclaimer provisions found in this case. The Lezak & Levy court held that there was no conflict between the certificate and the policy because the certificate stated that it was not a separate policy, conveyed no rights to the certificate holder and that it did not expand or amend the terms of the policy. In conclusion, the Lezak & Levy court stated that the parties recognized that they were required to refer to the policy in order to determine the extent of coverage including any exclusions.

Like the certificate in Lezak & Levy, the certificate in this case only served to inform Ulbrich that it had the same insurance coverage that the primary insured had for the Lake Barrington project subject to all of the terms and exclusions within that policy. Thus, we conclude that there was no conflict between this certificate and the insurance policy.

Plaintiffs argue that there was an ambiguity in the certificate at issue because the language of the certificate implied that some form of insurance was provided but the exclusion in the policy excluded all possible coverage for the Lake Barrington project. However, pursuant to the statements in the certificate, the plaintiff was advised to look to the policy to ascertain the nature and extent of coverage. We conclude that it was also Ulbrich’s responsibility rather than American Country’s to determine whether this coverage was adequate for its intended purpose. To hold otherwise would place an excessive burden on insurers to review all construction contracts in order to determine the insurance needs of the project prior to issuing a certificate of insurance. Lastly, although plaintiffs argue that they never received a copy of the policy, there is no evidence in the record that they requested one.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERTO KINDELAN, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1345
    Opinion filed May 6, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Cary Berman and Donald Honchell, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William P. Pistorius, and Joseph J. Higgins, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Alberto Kindelan, appeals from the trial court’s determination on remand for a Batson hearing that the State had provided sufficient race-neutral reasons for its exercise of peremptory challenges against black venirepersons to rebut defendant’s prima facie case of racial discrimination. On appeal, defendant contends that: (1) the trial court erred in finding that the State had offered sufficient race-neutral explanations for its use of peremptory challenges to exclude blacks from the jury; and (2) the voluntary manslaughter instruction erroneously stated the burden of proof. In response, the State argues that the defendant’s failure to establish a prima facie case of race discrimination in the State’s use of peremptory challenges obviates the need to review the State’s race-neutral explanations. For the following reasons, we find that defendant established a prima facie case of race discrimination and that the State failed to offer sufficient race-neutral reasons to rebut defendant’s prima facie case. Accordingly, defendant’s conviction is reversed; his sentence is vacated; this court’s opinion entered in case number 1—84—2480, People v. Kindelan (1986), 150 Ill. App. 3d 818, 502 N.E.2d 422 (Kindelan I) is vacated; the trial court’s Batson determination on remand is reversed; and the cause is remanded for a new trial.

In Kindelan I, this court affirmed defendant’s conviction and sentence for the murder of Valerino Guillen on the evening of July 2, 1983, and remanded the cause for an evidentiary hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to determine whether the State had purposefully discriminated against blacks in executing its peremptory challenges. Upon remanding the cause, this court instructed the trial court that in the event the trial court found that the State had not purposefully discriminated, the court was to confirm the judgment and sentence. If the court found that the State had purposefully discriminated, the trial court was to order a new trial.

The facts relating to the Batson hearing are fully discussed as they relate to the issues raised on this appeal. Following the hearing, the trial court determined that defendant had established a prima facie case of race discrimination, but that the State had provided sufficient race-neutral explanations to rebut the presumption. Accordingly, pursuant to the directions of this court in Kindelan I, the trial court confirmed its original judgment and sentence. Defendant’s appeal from the trial court’s Batson determination followed.

In the interests of clarity, the State’s contention that defendant failed to establish a prima facie case of race discrimination in the State’s use of peremptory challenges shall be discussed first. In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court established a two-part test (the Bat-son test) to determine whether a prosecutor had used his peremptory challenges to discriminate against members of defendant’s racial group. The first part of the test mandates that defendant establish a prima facie case of racial discrimination. (Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at 1721.) Once the court finds that such a case has been established, the burden shifts to the State to provide a race-neutral explanation for each peremptory challenge to which defendant objected. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

Pursuant to Batson, to establish a prima facie case of race discrimination, the defendant must prove three elements: (1) defendant is a member of a cognizable racial group; (2) the State exercised its peremptory challenges to remove members of that cognizable racial group from the venire; and (3) other relevant circumstances raise an inference that the State used peremptory challenges to exclude black venirepersons. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.

Recently, in Powers v. Ohio (1991), 499 U.S._, 113 L. Ed. 2d 411, 111 S. Ct. 1364, the United States Supreme Court relaxed the prima facie requirements of the Batson test and held that racial identity between the defendant and the excluded venirepersons is not necessary to establish a prima facie case of race discrimination. In effect, Powers eliminates the first element of the prima facie part of the Batson test (defendant must be a member of a cognizable racial group) and incorporates the second element (racial identity) into the third element (relevant circumstances). As a result, in order to prove a prima facie case of race discrimination in the State’s use of peremptory challenges, defendant must now prove relevant circumstances (which may include racial identity between the defendant and the excluded venireperson) which raise an inference that the State used its peremptory challenges to exclude members of the venire for race-based reasons. The Powers court specifically noted that its decision is not inconsistent with Batson. Racial identity between the defendant and the excluded venireperson remains a factor in that, when present, it is a relevant circumstance to be considered by the court.

Other relevant circumstances which a trial court may consider in determining whether a prima facie case has been established include: a pattern of strikes by the State against minority venirepersons (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712); (2) use of peremptory challenges against a group of venirepersons who share race as their only common characteristic (People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351); a disproportionate use of strikes against minority venirepersons (People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172); the level of minority representation in the venire as compared to that in the jury; the race identity between the defendant and the victim; and the race of the witnesses (People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d 1172). A prima facie case cannot be established by mere numbers. (People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d 1172.) All relevant circumstances must be considered. Moreover, a trial court’s determination as to whether a prima facie case of discrimination has been established will not be reversed unless it is against the manifest weight of the evidence. People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849.

A prima facie case of racial discrimination was found to have been established in People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351, People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, and People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849. In McDonald, the supreme court based its determination on the facts that the prosecutor had exercised a pattern of strikes to exclude all 16 black venirepersons and that the only characteristic shared by the excluded venirepersons was their race. (McDonald, 125 Ill. 2d at 196-97.) Similarly, in People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, even though 2 of the 12 jurors were black, the supreme court found that defendant had established a prima facie case of race discrimination based on the pattern of strikes used by the State against black venirepersons (15 out of 20 peremptory challenges used against blacks), and the fact that the black venirepersons excluded were as heterogeneous as the community as a whole, sharing race as their only common characteristic. Likewise, in Hope, the supreme court found that a prima facie case of discrimination had been established by the State’s pattern of strikes which resulted in excluding all black venirepersons not challenged for cause; the fact that the only characteristic shared by the excluded venirepersons was their race; 19% of the venire had been black and no black venireperson had been selected for the jury; and the defendant was black and had murdered a white male. Hope, 137 Ill. 2d at 463-65.

The circumstances in the present case are similar to those in McDonald, Harris and Hope regarding pattern of strikes and heterogeneity, but differ as to the comparison of the composition of the venire and the jury. First, all seven peremptory challenges exercised by the State were exercised against black venirepersons, resulting in a pattern of strikes against blacks. Second, the excluded venirepersons were as heterogeneous as the community as a whole, sharing only race as their common characteristic. For example, three of the excluded venirepersons were male, four were female; four were married, one was widowed, one was divorced and one was single; six were employed, ranging in length of employment from 6 months to 32 years; they were employed in a variety of occupations: administrator with the Department of Health, phone clerk with a commodities firm, community representative with the board of education, head of the mailroom of a major merchandising firm; truck driver; Chicago Public Library employee; student at Job Corp.; some had children, others did not; some had been victims of previous crimes, others had not; one had served on a jury, two had been called but not selected; various occupations of spouses and children; one had a police officer friend, another had friends who were criminal and civil lawyers; some rented, some were owners; and they had lived at their current addresses for various lengths of time. Notwithstanding the pattern of strikes and the fact that race was the only common characteristic of the excluded venirepersons, the percentage of blacks in the venire and on the jury remained the same at 25%. However, in our view, this numerical coincidence does not offset the evidence of racial discrimination demonstrated by the State’s use of all seven of its peremptory challenges to exclude black venirepersons and by the fact that race was the only shared characteristic of those excluded.

Those cases relied upon by the State where the court found a prima facie case had not been established are factually distinguishable from the present case: People v. Holman (1989), 132 Ill. 2d 128, 547 N.E.2d 124 (20% of the venire had been black and 33% of the jury was black; the State used 10 peremptory challenges against whites and four against blacks); People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784 (defendant introduced only a list of black venire members who had been challenged by the State; no evidence was presented as to the proportion of peremptory challenges used against blacks); People v. Fox (1988), 177 Ill. App. 3d 602, 532 N.E.2d 472 (the court found no evidence that the prosecutor had “set out” to keep blacks off the jury).

Accordingly, predicated on the fact that the State used all seven of its peremptory challenges to exclude blacks from the jury and the fact that the excluded venirepersons shared race as their only common characteristic, we conclude that defendant has established a prima facie case of race discrimination in the State’s use of peremptory challenges.

As previously stated, once defendant has established a prima facie case of discrimination, the burden shifts to the State to provide a race-neutral explanation for each peremptory challenge to which defendant objects. (Batson v. Kentucky (1986), 476 U.S. 79, 93-94, 90 L. Ed. 2d 69, 85-86, 106 S. Ct. 1712, 1721.) Regarding this part of the Batson test, defendant argues that the trial court’s determination that the State had offered sufficient race-neutral reasons to exclude blacks from the jury venire through the use of peremptory challenges was contrary to the manifest weight of the evidence. In order to rebut the presumption created by a prima facie case, the State’s explanations must be clear, reasonably specific, legitimate and nonracial. (People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849.) The explanations need not rise to the level justifying a challenge for cause. However, a mere assertion that the prosecution acted in good faith or without discriminatory motive will not suffice. (People v. Harris (1989), 129 Ill. 2d 123, 174, 544 N.E.2d 357.) It is then incumbent upon the trial court to make a sincere and reasoned attempt to evaluate the State’s explanations. (People v. Hope, 137 Ill. 2d 430, 560 N.E.2d 849.) In doing so, the court must assess the genuineness of the State’s assertions and determine whether those assertions are legitimate and race-neutral. (People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060.) Further, the trial court must be cognizant that the use of peremptory challenges by a prosecutor in a criminal case must of necessity be subjectively neutral. Any other conclusion would render peremptory challenges meaningless. (People v. Jones (1990), 201 Ill. App. 3d 440, 559 N.E.2d 112.) Whether the State has met its burden is a question of fact, grounded in credibility. Accordingly, the trial court’s decision is entitled to great deference and will not be reversed on appeal unless it is against the manifest weight of the evidence. (People v. Hope (1990), 137 Ill. 2d 430, 467, 560 N.E.2d 849; People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357.) Because exclusion of even one minority venireperson on the basis of race is unconstitutional and requires reversal of defendant’s conviction (People v. McDonald (1988), 125 Ill. 2d 182, 200, 530 N.E.2d 1351), the State’s explanation for excluding each black venireperson by use of peremptory challenge must be reviewed.

Rupert Banks — The parties agree that Banks was correctly challenged.

Pamela Gurley — At the time of jury selection, Gurley was 24 years old. She had been employed for five years as a phone clerk for a commodities firm and dealt with the public over the telephone. The State explained that Gurley was challenged because of her youth, which the State believed would render her unable to sit in judgment and to express her opinions to the older jurors. Defendant argued that the State’s explanation was pretextual and inconsistent because two other jurors of relatively young age had been accepted. Defendant’s claim of inconsistency has no basis in the record. The two jurors to whom he referred were both 31 years old, seven years older than Gurley. Moreover, Rupert Banks, age 22, had also been excluded. Youth has been accepted as a racially neutral, case-specific reason on the ground that prosecutors reasonably may have believed that young persons lack the necessary maturity to serve as a responsible juror. (People v. Taylor (1988), 171 Ill. App. 3d 261, 524 N.E.2d 1216.) Therefore, we find this explanation to be sufficiently race-neutral.

Kalander White — White had been employed as an administrator at the Illinois Department of Mental Health for 10 years. The State excused White on the ground that he might confuse the issues of either sanity or insanity and incorrectly influence the other jurors during deliberations. In giving this explanation, the State acknowledged that the issue of sanity was not expected to be brought up at trial. In reliance on People v. Turner (1986), 42 Cal. 3d 711, 726 P. 2d 102, 230 Cal. Rptr. 656, defendant contends that the employment reason given by the State for excluding White was not case specific and that there was no evidence during the voir dire that White would be confused on the issue of sanity. In Turner, in explaining why he had excused a black woman from the venire, the prosecutor stated:

“I don’t remember exactly, but I think it was something in her work as to that she was doing that from our standpoint, that background was not — would not be good for the People’s case.” (42 Cal. 3d at 725, 230 Cal. Rptr. at 664, 726 P.2d at 110.)

The Turner court found that the explanation was so lacking in content as to amount to no explanation at all. In making this finding, the court noted that although the prosecutor had questioned the venireperson during voir dire, he had asked no questions about her job as a supervising hospital unit coordinator.

Unlike in Turner, in the present case, the State specifically stated that it believed that White’s background in mental health may cause him to confuse issues of sanity and insanity and thereby affect the jury as a whole. Further, the court asked White questions about the duties of his position during voir dire. The State’s concern over employment positions has been found to be sufficiently race-neutral. (People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107 (security guard who was sporadically employed; legal brief clerk in a criminal defense law firm and an unemployed individual).) Accordingly, we find the State’s explanation to be sufficiently race-neutral.

Charles Howse — During voir dire, Howse indicated that he had been called previously for jury service, had waited around all day, but had never been called. The State excused Howse because it felt that Howse’s demeanor and tone indicated that he considered jury duty to be an imposition on his time and, therefore, would not listen to the evidence as fairly and impartially as he should. Further, the State noted a discrepancy in Howse’s answers during voir dire that caused it some additional concern. Specifically, when asked by the court if he could be fair to the State, Howse replied, “Yes.” When asked if he could be fair to the defendant, he replied, “Yes, I can.” The trial court gave no credence to the “Yes/Yes, I can” distinction, but found that demeanor was a sufficient race-neutral explanation.

On appeal, the State drops the “Yes/Yes, I can” argument and focuses on the demeanor argument. An explanation which focuses on a venireperson’s body language or demeanor must be carefully scrutinized because it is extremely subjective and can be easily used as pretext. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) However, the trial court is in the best position to observe the prospective juror’s behavior and to evaluate the prosecutor’s sincerity. (People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060.) Demeanor has been consistently recognized as a legitimate, racially neutral reason for using a peremptory challenge. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357 (meek and sleepy juror who did not answer in a forthright manner); People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453 (hesitation in answering questions); People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060 (avoided looking at the judge); People v. Taylor (1988), 171 Ill. App. 3d 261, 524 N.E.2d 1216 (forceful demeanor); People v. Talley (1987), 152 Ill. App. 3d 971, 504 N.E.2d 1318 (the prosecutor was “not too happy” with the demeanor of the venireperson).) Accordingly, we find the State’s explanation to be sufficiently race-neutral.

Claudia Townsend, Dorothy Lyles, Anne Neely — The State excluded Townsend, Lyles and Neely on the ground that each had been previously called for jury service, but had been excused from jury duty. At the Batson hearing, the State admitted that it did not know why Townsend, Lyles and Neely had been previously excluded from jury duty. In fact, the State did not even know if Lyles and Neely had been called to sit on a jury for a civil trial or for a criminal trial. Despite this lack of pertinent information, the State exercised peremptory challenges against all three of them on the ground that a potential existed for their lack of impartiality. In response, defendant argued that the State’s explanation was pretextual and inconsistent. It was pretextual because, during voir dire, the State had made no effort to inquire as to the specific circumstances of the prior jury exclusions. It was inconsistent because four seated white jurors had also been previously called for jury service and had not been selected at those previous times. Without addressing the inconsistency argument, the trial court found that having been called to jury duty and excused was a legitimate, race-neutral reason for a peremptory challenge.

With respect to defendant’s allegation that the State’s reason for excluding Townsend, Lyles and Neely was pretextual, defendant argues that the State should have sought more information during voir dire as to why these jurors had previously been excluded from jury service. Explanations for excluding venirepersons predicated on the State’s lack of information should be closely scrutinized since they can be easily used as a pretext for discriminatory challenges. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) In scrutinizing these explanations, the court should consider whether the State had made any attempt to discover unknown relevant information, such as requesting the court to ask supplemental questions during voir dire. People v. Harris, 129 Ill. 2d 123, 544 N.E.2d 357.

In the present case, there is no evidence in the record that the trial court scrutinized the State’s explanations at all. Although deference is to be given to the trial court’s determinations, we find that, in the present case, there is no evidence to support a determination that the prior jury service explanation was legitimate. This lack of evidence is particularly noteworthy in light of the fact that there was a clear opportunity for the State to have inquired further so as to provide some support. As a result, we conclude that the trial court’s determination is contrary to the manifest weight of the evidence and constitutes reversible error.

The inconsistency with which this reason was applied in the present case provides further grounds for reversal. If the State excludes a minority venireperson for a certain reason, yet accepts a white venireperson who has the same characteristic, the exclusion is not per se pretextual (People v. Harris, 129 Ill. 2d 123, 544 N.E.2d 357), but the inconsistency should be given weight by the trial court. (People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351.) In McDonald, the prosecutor challenged for cause one black venireperson and peremptorily challenged the remaining 16 black venirepersons. The prosecutor explained that he had peremptorily challenged two of the black venirepersons because their spouses were teachers, one young single black male because young single males are the worst jurors in rape cases, several black venirepersons because they were mothers of large families, one black venireperson because she had had prior jury service, one black venireperson because she was a nurse and two black venirepersons, ages 63 and 69, because of their advanced age. In contradiction to these explanations, the State had accepted a white female teacher, an 18-year-old single white male, a white woman who had a large family, a white woman who had served on two prior juries, a white nurse’s assistant, and a 67-year-old white female. The supreme court found that “[i]t is clear that the prosecutor’s proffered reasons for the exclusion of black veniremen were not consistently applied between the challenged black veniremen and the white veniremen who eventually sat on the defendant’s jury.” (McDonald, 125 Ill. 2d at 200.) Accordingly, the supreme court affirmed the trial court’s determination that the stated reasons for exclusion were not credible and remanded the cause for a new trial.

Similarly, in the present case, we find that the explanation of prior jury service as the ground for peremptorily challenging three black venirepersons has been inconsistently applied and that no explanation was offered for this inconsistency. Accordingly, because the discriminatory use of peremptory challenges against even one venireperson is unconstitutional (People v. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351), defendant’s conviction is reversed and the cause is remanded for a new trial. Our decision to remand for a new trial obviates the need to discuss defendant’s contention that the voluntary manslaughter jury instruction erroneously stated the State’s burden of proof.

Finally, we believe that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

For the aforementioned reasons, defendant’s conviction is reversed; his sentence is vacated; this court’s opinion entered in case number 1—84—2480, People v. Kindelan (1986), 150 Ill. App. 3d 818, 502 N.E.2d 422, is vacated; the trial court’s Batson determination on remand is reversed; and the cause is remanded for a new trial.

Reversed in part; vacated in part and remanded for a new trial.

MANNING, P.J., and O’CONNOR, J., concur.

       In its brief, the State refers to this venireperson as Patricia Gurley. However, the record indicates that the correct name is Pamela Gurley.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GANNON, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2748
    Opinion filed May 6, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Jack Wilk, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant John Gannon was convicted of delivery of a controlled substance and possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(a)(2), (b)(2)) and was sentenced to 12 years’ imprisonment. Defendant appeals his convictions and the prison term imposed.

We affirm.

Defendant’s convictions arise out of a transaction to sell cocaine in which Clem E. Ferguson, a State Police special agent, posed as purchaser.

On the morning of January 7, 1988, defendant contacted Ferguson, who was using the alias “Deacon,” from a restaurant located on Pershing Road in Chicago. Defendant informed Ferguson that he could obtain, through his source, two kilograms of cocaine for sale. Later that afternoon, Ferguson, accompanied by James Kizart, his partner, and Andre Kellem, an agent with the Drug Enforcement Administration, met defendant and Clayborn Burse in the restaurant’s parking lot to complete the transaction. Defendant retrieved a white plastic bag from under the hood of Burse’s automobile. After Ferguson opened one of two wrapped packages in the white plastic bag and observed a white powdery substance, defendant and Burse were arrested.

In total, the police recovered 2,015.4 grams of cocaine from the wrapped packages and 5.0 grams of cocaine from a small plastic bag found in defendant’s jacket pocket.

At trial, defendant asserted an entrapment defense and sought to establish that he was induced to participate in the transaction by a police informant named Greg and by Ferguson. Defendant testified he owned and operated a catering truck and had met Greg in July 1987 at Spears Transportation (Spears), one of defendant’s stops, where Greg was a security guard. Greg had inquired whether it was true that truck caterers sold drugs, explaining that his cousin, who was named Deacon, would be interested if so. Defendant told Greg that he did not engage in such activity.

Greg also told defendant that a woman named Stella, which later testimony showed to be Clayborn Burse’s niece, also worked at Spears and could obtain cocaine. On two occasions, Greg had asked defendant to approach Stella on Greg’s behalf, explaining he could not do so directly because Stella did not like him. Defendant had declined.

Eventually, Greg was fired from Spears. However, around the month of September, defendant stated, he saw Greg again. At that time, defendant was experiencing mechanical trouble with his truck. Greg told defendant he had a way for defendant to make money quickly by obtaining cocaine. Subsequently, defendant agreed to approach Stella.

Defendant met with Stella on December 22, 1987, and she arranged to have defendant meet Burse. Defendant spoke with Burse that day about obtaining cocaine for Deacon. The next day, defendant met Ferguson at Spears after contacting him through a telephone number, which Greg had supplied.

Between December 27, 1987, and January 7, 1988, defendant stated he was contacted by both Greg and Ferguson. Ferguson had telephoned him at home four times. He personally talked to Ferguson twice. The conversations concerned Ferguson’s desire to have defendant obtain two kilograms of cocaine. Defendant told him he was not interested.

Defendant also testified he contacted Greg on December 27, 1987, and January 2, 1988, to tell him that he did not want to be involved in the transaction. However, Greg had indicated it was too late for defendant to back out.

Defendant stated that shortly after his arrest on January 7, 1988, he witnessed a conversation about Greg between Ferguson and another officer, apparently referring to Kizart. Defendant asked Ferguson why he did not arrest Greg. Ferguson stated that he could not because Greg worked for the police.

Defendant admitted that when he met Ferguson on December 23, 1987, he had also sold Ferguson an eighth of an ounce of cocaine, which he had obtained from Burse.' Defendant explained that he had arranged a meeting with Ferguson and Burse for that day, but when Ferguson failed to twice meet Burse at appointed times, Burse gave the cocaine to defendant to deliver.

Defendant stated he contacted Ferguson again on the following day and offered to sell him another similar quantity of cocaine. Ferguson then asked whether defendant could obtain larger quantities of cocaine.

On or about December 29 or 30, 1987, defendant testified, he contacted Ferguson to tell him he was no longer interested in being involved with further narcotics transactions. However, he also admitted contacting Ferguson to arrange the January 7, 1988, transaction.

Defendant’s two sons, aged 10 and 12, also testified in support of his defense. Their testimony established that, sometime between the Christmas and New Year holidays preceding defendant’s arrest, they each answered two telephone calls at their home from a man named Deacon, who asked to speak to their father.

It was Ferguson’s testimony that between December 23, 1987, and January 7, 1988, defendant had contacted him twice. Ferguson had also telephoned defendant’s home once in that period. Defendant was not then home, and Ferguson spoke, first, with a child, and then with a female.

In testimony during the State’s case in rebuttal, Ferguson stated that, on December 22, 1987, he had spoken with an informant concerning defendant. The informant’s name was not Greg. In fact, the informant was a female. Pursuant to that conversation, the next day, Ferguson and Kizart went to Spears and met defendant, who was expecting them. Defendant advised them that he did not have the cocaine they wanted at that time. Defendant and Ferguson exchanged telephone numbers. Later that day, Ferguson and Kizart returned and purchased an eighth of an ounce of cocaine from defendant. Ferguson inquired about purchasing larger quantities of cocaine and defendant replied that he could provide larger amounts. Ferguson told defendant to telephone him when he obtained more.

On or about December 27, 1987, defendant contacted Ferguson, stating he was still looking for his source. Defendant asked if Ferguson was interested in purchasing another eighth of an ounce of cocaine, but Ferguson declined, again instructing defendant to contact him once he spoke to his source regarding large quantities of cocaine.

On or about December 29 or 30, 1987, defendant contacted Ferguson and again indicated he had not yet contacted his source. However, defendant asked Ferguson for a loan to repair his truck. Defendant also asked if he could be a “runner” for Ferguson, transporting money and drugs. Once again, Ferguson told defendant to contact him when defendant contacted his source. The next time Ferguson talked to defendant was on January 7,1988.

Finally, Ferguson denied having indicated to defendant that an individual named Greg worked for the police.

On appeal, defendant contends the record does not support his convictions, in view of the evidence of entrapment, and argues we must view the evidence in a light most favorable to him in making a determination on the issue.

Entrapment is a statutory defense of exoneration. (Ill. Rev. Stat. 1987, ch. 38, pars. 7—12, 7—14.) Pursuant to section 7 — 12 of the Criminal Code of 1961, a defendant cannot be guilty of an offense where the conduct forming the basis for the offense was incited or induced by a public officer or agent for purposes of obtaining evidence to prosecute. (Ill. Rev. Stat. 1987, ch. 38, par. 7—12.) The entrapment defense is inapplicable, however, where the defendant is merely afforded the opportunity or facility for committing the offense in furtherance of a criminal purpose originating with the defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 7—12.) The critical inquiry, therefore, is defendant’s predisposition to commit crime. People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812, cert. denied sub nom. Thomas v. Illinois (1980), 445 U.S. 929, 63 L. Ed. 2d 762,100 S. Ct. 1316.

Procedurally, as in instances where other affirmative defenses are asserted, the defendant is entitled to instruct the jury on the defense if, when viewing evidence presented in a light most favorable to the defendant, there is some evidence supporting the defense. (Ill. Rev. Stat. 1987, ch. 38, pars. 7—12, 3—2; People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448; see also People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295.) To convict, the State must then prove the defendant guilty beyond a reasonable doubt as to the defense together with all other elements of the crime. (Ill. Rev. Stat. 1987, ch. 38, par. 3—2(b).) Because the determination of defendant’s predisposition to commit crime is dependent on the facts of the case, it is recognized that the issue is one for the trier of fact. People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.

Following a conviction, that determination is accorded particular deference. The jury’s role as weigher of the evidence is “ ‘preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ ” (Emphasis omitted.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573.) Accordingly, a reviewing court must affirm where, when viewing the evidence in that light, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) That standard of review is applicable here just as it must be applied on review following any criminal conviction where an affirmative defense of exoneration has been properly considered, and rejected, by a jury. See, e.g., People v. Parker (1990), 194 Ill. App. 3d 1048, 1054-57, 551 N.E.2d 1012, 1017, appeal denied (1990), 132 Ill. 2d 552, 555 N.E.2d 383.

In People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528, a case involving an entrapment defense, the supreme court recognized application of that standard of review. In Tipton, the court disagreed with the appellate court’s determination that the defendant had been entrapped, contrary to a jury’s rejection of that defense at trial. The supreme court observed that the question of entrapment was one for the trier of fact, “unless the trial court or a reviewing court can find entrapment as a matter of law.” (78 Ill. 2d at 487, 401 N.E.2d at 533; see also People v. Poulos (1990), 196 Ill. App. 3d 653, 658, 554 N.E.2d 448, 451.) Because evidence existed in the record to support the jury’s rejection of the entrapment defense, the court was constrained to affirm the conviction. Tipton, 78 Ill. 2d at 487-88, 401 N.E.2d at 533.

Further indication of the standard of review as noted above can be found in the Supreme Court’s decision in Sherman v. United States (1958), 356 U.S. 369, 2 L. Ed. 2d 848, 78 S. Ct. 819, the source of the language quoted from Tipton indicating reversal would be proper only where entrapment did not exist “as a matter of law.” Sherman involved reversal of convictions for the sale of narcotics where undisputed testimony included the government informer’s admission that he had induced the defendant to engage in the illegal activity. (Sherman, 356 U.S. at 373, 2 L. Ed. 2d at 851-52, 78 S. Ct. at 821.) The Court noted reversal was proper based on the undisputed testimony of the prosecution’s witnesses, and specifically not in a choice between conflicting testimony on the issue. (Sherman, 356 U.S. at 373, 2 L. Ed. 2d at 851, 78 S. Ct. at 821.) Thus, “as a matter of law,” reversal was warranted simply because the record contained no evidence to support the jury’s verdict.

In short, we find no support for the assertion that a different standard of review should apply following a conviction where the issue of entrapment was raised and the jury properly instructed than is applied in any other appeal following a conviction where an affirmative defense of exoneration was properly considered. Reversal is proper only where, when viewing the evidence in a light most favorable to the prosecution, the record contains evidence such that any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt.

In the instant case, viewing the testimony presented in a light most favorable to the State, defendant’s conviction must be affirmed. Ferguson’s testimony established that, through his informant, he met and purchased a small quantity of cocaine from defendant and inquired of defendant if he could procure larger amounts. To that end, Ferguson established that defendant kept in contact with Ferguson while he attempted to contact his source, finally arranging the transaction on January 7, 1988. Although Ferguson did testify that he told defendant he was interested in large quantities of cocaine, it is undisputed that defendant made the initial contact with Ferguson on that day and actively participated in arranging the transaction. Last, Ferguson contradicted defendant’s testimony that defendant’s involvement was induced by a police informer named Greg. That evidence is sufficient to support the jury’s rejection of defendant’s entrapment defense and finding of guilt.

Defendant next contends comments made by the State during closing argument in rebuttal were improper because the comments appealed to the passions of the jurors. Defendant directs our attention to four comments with reference to children. In the first reference, the State, in an apparent attempt to draw attention away from sympathies the jury might have felt toward defendant after viewing the testimony of defendant’s two children, invited jurors to think about those children whose lives might have been affected by the cocaine involved in the sale. In the second instance, the reference to children was included in a reference to adults and addicts whose lives might have been so affected. The third and fourth references concerned mothers of children and children in school who might have been affected by the cocaine.

The above references constituted error. Because the defense of entrapment entails defendant’s admission of acts in commission of the offense as noted above, the relevant issue is confined to whether defendant’s involvement was induced. The comments do not relate to evidence presented as to that fact.

However, because we conclude the comments were not of a sufficient nature to cause prejudice to defendant’s case, we do not find the comments constitute reversible error. (See People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19.) The improper commentary was relatively limited given the length of closing remarks. Further, the trial judge admonished the jury not to be influenced by sympathy, but to base its decision solely on the evidence, exclusive of closing remarks.

Finally, defendant contends his sentence of 12 years’ imprisonment was excessive.

Trial courts have wide discretion in sentencing defendants and, absent finding an abuse, appellate courts must defer to that determination. (People v. Anderson (1986), 112 Ill. 2d 39, 490 N.E.2d 1263.) We note that defendant’s sentence for his conviction of delivery of a controlled substance containing cocaine, a Class X felony, alone, was well within the maximum term of 30 years. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2); Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(3).) We are satisfied that the trial judge properly considered the relevant factors in mitigation in determining defendant’s sentence and simply can find no reason to justify substituting our own judgment in consideration of the same matter.

For the reasons set forth above, we affirm defendant’s convictions and sentence.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE BUCKLEY

text:
    UNITED STATES FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. CNA INSURANCE COMPANIES, Defendant and Counterclaimant-Appellee (Pluswood, Inc., Defendant and Counterclaimant-Appellant).
    First District (1st Division)
    Nos. 1—89—1615, 1—89—3480 cons.
    Opinion filed May 6, 1991.

      Judge & Knight, Ltd., of Park Ridge (Jay S. Judge and Martin D. Hoke, of counsel), for appellant United States Fire Insurance Company.
    Foley & Lardner, of Chicago, and Foley & Lardner, of Milwaukee, Wisconsin (Randall S. Rapp, Joan M. Kubalansa, Nancy J. Sennett, Robert E. Shumaker, and Kevin P. Whaley, of counsel), for appellant Pluswood, Inc.
    Johnson & Bell, Ltd., of Chicago (Thomas W. Murphy and Nancy Caron, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Pluswood, Inc. (Pluswood), a Wisconsin manufacturer of building materials, produces “Melaface,” a product formed by the compression of special paper onto both sides of a particle board core using resin and hot presses. Dovetailed Enterprises, Inc. (Dovetailed), a kitchen cabinet manufacturer, purchased sheets of this Melaface and cut them into component parts for kitchen cabinets. These cabinets were then sold for installation to a large New York City apartment complex owned by the 81st West River Company (West River Company). After the Melaface within the cabinets proved defective, West River Company brought suit against Dovetailed, who then filed a third-party complaint for indemnification against Pluswood. Pluswood sought insurance coverage for this suit from its primary carrier, Continental Casualty Company (Continental) (sued as CNA Insurance Companies) and its excess carrier, United States Fire Insurance Company (United).

United filed an action for declaratory relief against Pluswood seeking a declaration that its policies provided no coverage to Plus-wood because West River Company’s claim sought repair or replacement of Pluswood’s product, a claim excluded under its policies’ “sistership” exclusion. Pluswood counterclaimed against Continental seeking a declaration that coverage was available under Continental’s primary policies for the policy years 1982-85. The circuit court of Cook County, applying Wisconsin law, granted (1) summary judgment to Pluswood and against United, finding that the “sistership” exclusion did not operate to preclude coverage, and (2) summary judgment to Continental, finding that no coverage existed for policy years 1984 and 1985 because Pluswood expected the property damage to the cabinets prior to the inception dates of those policies. On appeal, United and Pluswood contest the propriety of the respective summary judgment awards entered against them. We affirm in part and reverse in part.

The record reflects that Pluswood purchased from Continental primary insurance coverage in the amount of $100,000 for policy years 1982-1984 and $250,000 for policy year 1985. Under these policies, Pluswood received comprehensive general liability coverage requiring Continental “to pay on behalf of [Pluswood] all sums which [Pluswood] became legally obligated to pay as damages because of *** property damage *** caused by an occurrence.” Under the definition section of the policies, Continental defined “property damage” and “occurrence” as follows:

“ ‘property damage’ means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period;
‘occurrence’ means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

In addition, Continental policies for years 1982-1985 included an endorsement which provided:

“It is hereby agreed that property damage coverage is extended to pay on behalf of the named insured the actual expense incident to the intentional destruction and removal of a product which is found to be defective. For the purpose of this coverage, ‘defective’ means a product which does not meet specifications. It is further agreed that coverage is extended to additional expenses paid as are necessary to replace the product in the same condition existing at the time such product was determined to be defective. A product is defined as all named insured’s products manufactured, sold, distributed or handled.”

As for Pluswood’s excess insurance coverage with United, United provided Pluswood with $20 million in excess coverage for policy years 1981-1985. Under those policies’ “sistership” exclusion, property damage liability coverage did not apply

“to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the insured’s products or work completed by or for the insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.”

The dispute regarding Pluswood’s Melaface began on February 8, 1983, when West River Company wrote Dovetailed to inform it that some of the cabinets it had purchased were “crazing” or cracking. According to the letter, 92 vacant apartments were surveyed and crazing was found in 25 of them. The remaining 139 apartments were not inspected at this time since they were occupied; however, the letter noted that the problem was growing and everyday more cabinets were developing crazing. Pluswood admits receiving a copy of this letter. On February 16, Pluswood informed Continental that a possible claim existed regarding its cabinets.

On April 20, 1983, Dovetailed received another letter indicating that a recent survey showed that 57 out of 87 vacant apartments had the crazing problem. The occupied apartments had yet to be surveyed. The West River Company demanded in this letter that Dovetailed replace all of the doors, drawers and side panels in all 231 apartments, arguing that additional crazing was likely. Plus-wood admits receiving a copy of this letter.

On May 2, 1983, Dovetailed wrote Pluswood informing it that there were serious problems with its Melaface and that the crazing problem was extensive throughout the project. Dovetailed informed Pluswood that the Melaface breached express and implied warranties and, if Dovetailed were sued over the defects, Dovetailed intended to implead Pluswood as a party defendant to seek indemnification for any damages awarded against Dovetailed.

On September 8, 1983, West River Company filed its complaint against Dovetailed in the United States District Court for the Southern District of New York (the New York litigation). In its complaint, West River Company sought judgment against Dovetailed (1) directing it to specifically perform its warranty obligations under the agreement to repair or replace all damages to the cabinets, and (2) for damages in the amount equal to all costs incurred in connection with Dovetailed’s repair or replacement of the cabinets.

On November 15, 1983, Dovetailed filed a third-party complaint against Pluswood seeking indemnification for all or part of any verdict rendered in favor of West River Company. Pluswood notified Continental, its primary carrier, of the claim against it. Continental undertook Pluswood’s defense. As the New York litigation proceeded, the Melaface continued to deteriorate. Subsequent inspections demonstrated that as of October 1984, 30% of the Melaface had deteriorated; as of March 1986, 94% of the Melaface had deteriorated; as of April 1987, deterioration was complete.

This lawsuit began when United filed its action for declaratory relief against Pluswood, which then filed a counterclaim against Continental. Continental moved for summary judgment. In its motion, Continental did not dispute its duty to defend Pluswood or that coverage was available to Pluswood under Pluswood’s 1982 and 1983 policies; rather, Continental disputed the existence of coverage under Pluswood’s 1984 and 1985 policies. Continental contended that while “property damage” occurred during those policy years, the “property damage” was not caused by an “occurrence” as required under the policies because Pluswood “expected or intended” it prior to the inception of those policies. Pluswood responded with its own motion for summary judgment, contending that there was an “occurrence” under those policies because the proper moment to measure an insured’s knowledge for “occurrence” purposes is at the time of the alleged negligent act, not the time immediately prior to the commencement of a policy. Consequently, Pluswood contended that because it is undisputed that Pluswood did not expect or intend the “property damage” to the cabinets at the time it manufactured the defective Melaface, there was an “occurrence” under the 1984 and 1985 policies. Alternatively, Pluswood argued that notwithstanding its knowledge, the endorsement it purchased provided “property damage” coverage for those years because its Melaface panels were, as stated in the endorsement, “found to be defective” during those years.

The circuit court, faced with cross-motions for summary judgment, agreed with Continental’s argument that prior to the inception of the 1984 and 1985 policies, Pluswood “expected” the “property damage” which transpired during those years. Accordingly, because the circuit court found no “occurrence” for those policy years, it granted Continental’s summary judgment motion and declared that the claims asserted in the New York litigation were not covered by those policies.

As for Pluswood’s excess coverage with United, Pluswood moved for summary judgment contending that the “sistership” exclusion, by its clear and unambiguous terms, excludes coverage only for the cost of repairing, replacing or withdrawing products which are withdrawn from the market or use because of known or suspected defects. United responded that its “sistership” exclusion denied Pluswood coverage for the claims asserted in the New York litigation because West River Company sought damages for the “repair and replacement” of Pluswood’s own defective product: the components of the kitchen cabinets made from Melaface. United also at this time filed a notice of discovery deposition of Pluswood’s vice-president. After Pluswood was unable to produce the deponent prior to the scheduled summary judgment hearings, United moved for a continuance. One day prior to the hearing, United served Pluswood with a request to admit whether the relief sought in the third-party action was for the repair and replacement of the defective cabinets. The circuit court denied United’s motion for continuance.

Hearings on Pluswood’s motion for summary judgment proceeded. Upon their termination, the circuit court agreed with Plus-wood’s interpretation of the exclusion and granted Pluswood’s summary judgment motion, declaring that United must pay the full amount for which Pluswood may become liable in excess of the amount for which Continental is liable.

After the entry of summary judgment, Pluswood filed its response to United’s request to admit and denied therein that the third-party claim was for the repair and replacement of the kitchen cabinets. Subsequently, United filed a motion for reconsideration of the court’s grant of summary judgment. The basis for this motion was that the circuit court had permitted insufficient discovery to clarify the issues created by Pluswood’s summary judgment motion and that Pluswood’s response to United’s request to admit raised a genuine issue of material fact as to the nature of the relief sought in the third-party action.

The court denied United’s motion for reconsideration. In so doing, the court emphasized that its interpretation of the exclusion was based on its plain language and, therefore, additional discovery would in no way impact upon the plain language of the exclusion. On appeal, United contends that (1) the circuit court’s grant of summary judgment to Pluswood was based on an erroneous interpretation of the sistership exclusion, and (2) summary judgment was not proper in light of the discovery posture of the case.

The parties to this dispute agree that under Illinois choice of law rules, Wisconsin law governs the interpretation of the insurance policies. Under those rules, an insurance policy is generally governed by the law of the State where the policy was issued or delivered or by the law of the place of the last act to give rise to a valid contract. (Jadczak v. Modern Service Insurance Co. (1987), 151 Ill. App. 3d 589, 593, 503 N.E.2d 794, 797.) Here, each of the policies was issued in Wisconsin to a business operating in Wisconsin and each took effect only when it was countersigned in Wisconsin by the insurers’ authorized agents. Accordingly, we apply Wisconsin law to this dispute.

In Patrick v. Head of the Lakes Cooperative Electric Association (Wis. App. 1980), 98 Wis. 2d 66, 69, 295 N.W.2d 205, 207, the court stated the principles which govern the interpretation of insurance contracts under Wisconsin law:

“When ambiguous, an exclusionary clause in an insurance contract should be strictly construed against the insurer. [Citation.] The test of coverage is not what the insurer intended to cover, but what a reasonable person in the position of the insured would have understood to be covered. [Citation.] The words used in an insurance contract should be given their everyday meaning, [citation], and should be interpreted reasonably so as to avoid absurd results. [Citation.] Finally, there is a public policy in Wisconsin against the avoidance of coverage by an insurer, and the reasonable expectations of coverage by an insured should be honored.”

With these principles in mind, the first issue we address is what meaning does this court ascribe to the phrase “expected or intended from the standpoint of the insured.” A related issue is at what time is this court to measure the insured’s state of mind.

Numerous Wisconsin cases have construed, in the context of intentional torts, the phrase “expected or intended by the insured” as it appears in a typical homeowner’s exclusionary clause. (Baby v. Moe (1990), 153 Wis. 2d 101, 450 N.W.2d 452 (robbery); Brown v. Maxey (1985), 124 Wis. 2d 426, 369 N.W.2d 677; Pachucki v. Republic Insurance Co. (1979), 89 Wis. 2d 703, 278 N.W.2d 898 (battery); Smith v. Keller (Wis. App. 1989), 151 Wis. 2d 264, 444 N.W.2d 396 (battery); Hagen v. Gulrud (Wis. App. 1989), 151 Wis. 2d 1, 442 N.W.2d 570 (sexual molestation); K.A.G. v. Stanford (Wis. App. 1988), 148 Wis. 2d 158, 434 N.W.2d 790 (sexual molestation); Poston v. United States Fidelity & Guarantee Co. (Wis. App. 1982), 107 Wis. 2d 215, 320 N.W.2d 9 (battery); Patrick v. Head of the Lakes Cooperative Electric Association (Wis. App. 1980), 98 Wis. 2d 66, 295 N.W.2d 205 (trespass).) Under these cases, the expected or intended language has been narrowly construed to exclude only those injuries, however slight, which are intentionally caused. As for the distinction between the terms “expected” or “intended,” Wisconsin law is unclear. In this regard, however, the court in Poston v. United States Fidelity & Guarantee Co. (Wis. App. 1982), 107 Wis. 2d 215, 221, 320 N.W.2d 9, 12-13, stated:

“While [our narrow interpretation of the clause] may not conclusively demonstrate that ‘intended’ and ‘expected’ are absolutely synonymous in Wisconsin with respect to policy exclusions, it does persuade us that the difference between them, if there is one, is sufficiently subtle so as to militate against basing a summary judgment upon it. ***
* * *
We are not persuaded that the trial court’s characterization of ‘expectable’ and ‘foreseeable’ as synonymous is an apt characterization of law. If foreseeability of injury alone were enough to activate the policy exclusion, then many acts of mere negligence would be excluded. We do not read the clause to exclude both intentional and negligent acts. [(Emphasis in original.)] The Pachucki court characterized the exclusion as ‘specifically applying only to injuries intentionally caused.’ [(Emphasis added.)] [Citation.] To so broaden it as to exclude foreseeable injuries is unjustified.”

In our opinion, while the exact difference between the terms “intended” and “expected” is not clear under Wisconsin law, Poston endorses the view that the term “expected” means more than foreseeability but less than the intent associated with the intentional acts cases cited above. .Given these boundaries, we believe that Wisconsin would adopt as its own the following statement from City of Carter Lake v. Aetna Casualty & Surety Co. (8th Cir. 1979), 604 F.2d 1052,1058-59:

“We reject the argument that a result is expected as that term is used in insurance policies simply because it was reasonably foreseeable. The reasonable expectation of an insured in securing a comprehensive general liability policy is that it will cover some negligent acts. It does not follow, however, that because the policy covers some negligent acts it must cover all negligent acts. An insured need not know to a virtual certainty that a result will follow its acts or omissions for the result to be expected. [Citation.] Rather, each case must be determined by examination of the totality of the circumstances. For the purposes of an exclusionary clause in an insurance policy the word ‘expected’ denotes that the actor knew or should have known that there was a substantial probability that certain consequences will result from his actions. If the insured knew or should have known that there was a substantial probability that certain results would follow his acts or omissions then there has not been an occurrence or accident as defined in this type of policy when such results actually come to pass. The results cease to be expected and coverage is present as the probability that the consequences will follow decreases and becomes less than substantial probability.”

Given the above distinction between “expected” and “intended,” we now address the related issue of when, under Wisconsin law, is an insured’s state of mind to be measured. Initially, we note that Continental’s policies are silent on this issue. These policies merely provide that the resulting property damage can be neither expected nor intended from the standpoint of the insured. Pluswood urges that Wisconsin courts would interpret this language to mean that the only proper time at which to measure the insured’s state of mind is when the insured commits the act in question. We decline Pluswood’s urgings, and believe that Wisconsin courts would agree that it is appropriate to measure an insured’s state of mind at the time prior to the inception date of the policy in question and, given the appropriate facts, to even bar coverage where such state of mind reflects expectation or intention.

First, under Wisconsin’s rules of interpretation, Wisconsin courts are to give words in insurance contracts their everyday meaning and interpret them reasonably so as to avoid absurd results. Moreover, an insured’s reasonable expectations are to be honored. (Patrick, 98 Wis. 2d at 69, 295 N.E.2d at 207.) Applying these principles, we believe that a Wisconsin court would not read Pluswood’s suggested time limitation into the expected or intended clause where none is present. Additionally, we believe that no insured would reasonably expect coverage for property damage which it “expected” prior to the inception of a given policy. Such an expectation would lead to an absurd result. Second, we believe that Wisconsin’s courts would find persuasive the fact that other courts have reached the conclusion we reach today. Compare City of Johnstown v. Bankers Standard Insurance Co. (2d Cir. 1989), 877 F.2d 1146 (duty to defend exists where court could not say as a matter of law that insured expected or intended groundwater contamination prior to policy’s inception), with New Castle County v. Hartford Accident & Indemnity Co. (D. Del. 1988), 685 F. Supp. 1321 (summary judgment in favor of insurer on indemnity issue where insured expected groundwater contamination prior to policy’s inception); see also Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp. (1988), 166 Ill. App. 3d 550, 519 N.E.2d 1180 (coverage denied where insured expected property damage prior to policy’s inception date).

Turning to the facts of this case, the parties do not dispute that Pluswood neither expected or intended the property damage at the time it manufactured the defective Melaface. This much is clear. We believe that a similar conclusion is reached even if Pluswood’s state of mind is measured prior to the inception of the 1984 and 1985 policies. At that time, Pluswood knew that it had manufactured a defective product which was deteriorating with time. Admittedly, there were indications that all the Melaface could ultimately prove to be defective. However, at the inception of the 1984 and 1985 policies, it would have been complete speculation for Plus-wood or anyone to predict the exact extent of the property damage that ultimately occurred during those policy periods. The property damage could have stopped or continued; the fact that it continued cannot be charged to Pluswood in retrospect. Poston makes clear that more than mere foreseeability is required. At most, all that can be said of Pluswood’s knowledge at the inception of those policies is that future deterioration of the cabinets was foreseeable. Under Wisconsin law, this is insufficient.

A contrary conclusion in this case is not reached even if we were to follow Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp. (1988), 166 Ill. App. 3d 550, 519 N.E.2d 1180, a case which Continental contends is dispositive. In Eichelkraut & Sons, a school district sued the insured in 1978 for faulty construction of a high school. The factual allegations of the complaint alleged various defects and inadequacies in construction, installation and selection of the roof of the school. The complaint alleged that the roof leaked in approximately 120 locations; that the leaks had begun upon completion of the school in 1969; that they continued to the date of the suit; that the roof progressively deteriorated; and that the insured failed and refused to rectify the situation. The insured sought coverage for the suit from three carriers: Liberty Mutual for the policy years 1968-1970; Wausau from 1970-1973; and Bituminous from 1973-1978. Liberty Mutual and Wausau undertook the insured’s defense, but Bituminous refused, alleging that the insured expected or intended the property damage prior to 1973, the inception date of its policies. The court agreed with Bituminous that, under the allegations of the complaint, the insured “knew or should have known about the defects in its construction by the time Bituminous issued its general liability policy in 1973, four years after completion of construction.” Eichelkraut & Sons, 166 Ill. App. 3d at 555, 519 N.E.2d at 1183.

The court in Eichelkraut & Sons, in reaching its conclusion, found persuasive United States Fidelity & Guaranty Co. v. Bonitz Insulation Co. (Ala. 1982), 424 So. 2d 569. In that case, Bonitz was a contractor who built a gymnasium roof in the fall of 1972. By late fall, the roof began to leak and Bonitz was thereafter informed of the problem. Despite attempted repairs, the roof continued to deteriorate and ultimately had to be replaced. In denying that a duty to defend existed under policy language similar to that now before this court, the court noted that the roof had been leaking for over four years before the insurer in question had issued its policies. Consequently, the court believed that no “accident” transpired because the damage that resulted to the roof was not unusual or unexpected.

Eichelkraut & Sons and Bonitz are distinguishable. The insureds in those cases were given notice of the defect in their work or product, but through continued acts or omissions, additional property damage was sustained after the inception of later issued insurance policies. In contrast, in this case, as Pluswood states, “there is absolutely no contention that anything Pluswood did, or did not do, after learning of the alleged defects in its products, caused, contributed to or exacerbated the property damage which took place in 1984 and 1985.” To the contrary, after Pluswood manufactured and sold the Melaface, it had no control over the progressive deterioration of its Melaface. This total inability to control which of its Melaface, if any, would deteriorate next lessens Plus-wood’s expectation and distinguishes this case from Eichelkraut & Sons, Bonitz, and the other cases the parties have cited. See Appalachian Insurance Co. v. Liberty Mutual Insurance Co. (3d Cir. 1982), 676 F.2d 56; Bartholomew v. Insurance Company of North America (D. R.I. 1980), 502 F. Supp. 246, aff’d (1st Cir. 1981), 655 F.2d 27; City of Carter Lake v. Aetna Casualty & Surety Co. (8th Cir. 1979), 604 F.2d 1052.

In summary, we reverse the circuit court’s conclusion that Pluswood “expected” the property damage prior to the inception dates of the 1984 and 1985 policies. The record reflects that 70% of the property damage which ultimately transpired occurred after the effective dates of those policies. As previously stated, Pluswood cannot be charged with expecting such damage. Moreover, our conclusion is buttressed by the fact that Continental was on notice prior to the 1984 and 1985 policies of the problems its insured was having with its product. Nevertheless, Continental issued the policies without any attempt to exclude or limit coverage for the risks associated with Pluswood’s Melaface. If Continental wished to exclude the risk of further liability, it should have acted to specifically exclude it, rather than rely on a court’s construction of the term “expected.” Accordingly, we reverse the circuit court’s determination that no coverage existed under Continental’s 1984 and 1985 policies.

The second issue before the court involves the interpretation under Wisconsin law of the “sistership” exclusion. Notwithstanding United’s contention to the contrary, we find dispositive Paper Machinery Corp. v. Nelson Foundry Co. (Wis. App. 1982), 108 Wis. 2d 614, 323 N.W.2d 160. In that case, Paper Machinery, a manufacturer of paper cup-making machines, purchased cast aluminum mandrels from Nelson and incorporated them into its machines. In 1975, the mandrels began cracking while in use and Paper Machinery replaced them as they broke. Paper Machinery sued Nelson for breach of warranty, seeking the cost of investigation of the damage to the mandrels, repair and replacement of the mandrels, lost profits, and damage to good will. After Nelson impleaded its insurer, a jury found that Nelson had breached warranties given to Paper Machinery; a joint and several judgment against Nelson and its insurer was later entered.

On appeal, the insurer contended in part that the “sistership” exclusion contained within its policy excluded coverage for all the claims brought against its insured. In rejecting the application of the exclusion, the court stated:

“Analyzing the exclusion on which Royal Globe relies, it is clear that Paper Machinery has claimed and been awarded ‘damages ... for the ... replacement ... of the named insured’s [Nelson’s] products.’ By the plain meaning of the exclusion, however, such damages are excluded from coverage only if the insured’s products ‘are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.’ That is not the situation in this case. Paper Machinery never withdrew the defective mandrels from the market because of known or suspected defect. It replaced customer’s mandrels only if and when they broke. We reject Royal Globe’s characterization of this replacement as a recall or withdrawal of the mandrels from the market.” Paper Machinery Corp., 108 Wis. 2d at 620, 323 N.W.2d at 163.

In an attempt to distinguish Paper Machinery, United contends that, in a footnote, the court specifically indicated that no issue was raised before it regarding whether repair and replacement costs of the defective mandrels were covered under the policy. As a result, United contends that Paper Machinery is not dispositive because that opinion did not address whether the exclusion excluded repair and replacement costs, the issue with which this court is now faced. We reject this argument.

Paper Machinery makes clear that it was interpreting the sistership exclusion as it potentially applied to all claims brought by Paper Machinery. The quotation above indicates this much. Moreover, the court specifically noted that the plain meaning it had accorded the exclusion was supported by its historical purpose and the “substantial authority interpreting the identical exclusion.” (Paper Machinery Corp., 108 Wis. 2d at 621, 323 N.W.2d at 163-64.) Regarding the exclusion’s historical purpose, the court referenced an insurance treatise, which noted that the exclusion only

“ ‘denies coverage for claims based on the cost of withdrawing a product from the market, replacing a product or the loss of use of a product which is temporarily or permanently withdrawn from the market because of occurrences involving the same or similar product. The name derives from an occurrence in the aircraft industry where all airplanes of a certain make and type were grounded by an order of the Civil Aeronautics Administration because one crashed and others were suspected of having a common structural defect. The damages arising out of the loss of use of all sister ships was enormous.
The recall of equipment or parts discovered to have a common fault involve expenses incurred to prevent accidents which have not occurred. While the insurance covers damages for bodily injuries and property damage caused by the product that failed, it was never intended that the insurer would be saddled with the cost of preventing other failures ***.’ ” (Paper Machinery Corp., 108 Wis. 2d at 621, 323 N.W.2d at 164, quoting 3 R. Long, The Law of Liability Insurance App. B, §1 (1981).)

As the above makes clear, the precedential value of Paper Machinery is not limited by the court’s admitted refusal to address whether repair and replacement costs were covered.

Contrary to United’s contention, American Motorists Insurance Co. v. Trane Co. (W.D. Wis. 1982), 544 F. Supp. 669, aff’d (7th Cir. 1983), 718 F.2d 842, does not require a different result either. In Trane, the court, applying Wisconsin law, interpreted an exclusion containing materially different wording. The exclusion there provided that the policy did not apply

“to such part of any damages or expenses which represents the cost of inspecting, repairing, replacing, removing, recovering, withdrawing from use or loss of use of, because of any known or suspected defect or deficiency therein, any
(1) goods or products or any part thereof (including any container) manufactured, sold, handled or distributed by the named insured, or by others trading under his name, or
(2) work completed by or for the named insured; or
(3) other property of which such goods, products or work completed are a component part or ingredient.” (Trane, 544 F. Supp. at 694.)

Noticeably absent from the above exclusion is the language contained in the sistership exclusion before this court which acts to limit the exclusion’s applicability. The exclusion in this case provides that United’s policy does not apply

“to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the insured’s products or work completed by or for the insured or for any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.” (Emphasis added.)

The language highlighted above clearly distinguishes the exclusion involved in this case from the exclusion involved in Trane. Indeed, the Trane court itself noted that the exclusion before it was broader than the typical sistership exclusion now before this court. (Trane, 544 F. Supp. at 694.) Accordingly, we affirm the conclusion of the circuit court that the sistership exclusion within United’s policy unambiguously fails to preclude coverage.

The final issue before the court involves the propriety of summary judgment in light of the discovery posture of this case. During the petition for rehearing before the circuit court, the court indicated that its interpretation of the sistership exclusion was exclusive of the parties’ interpretation of the exclusion. Accordingly, neither United’s nor Pluswood’s interpretation of the exclusion, or their intent pertaining to it, was relevant to the court; its meaning was derived solely from the plain language contained within it. Moreover, the court had before it a copy of the pleadings in the New York litigation. Therefore, it could determine for itself the nature of the relief sought. As a result, Pluswood’s responses to United’s request to admit as they may pertain to the relief sought in the New York litigation has no bearing on Pluswood’s summary judgment motion. Accordingly, we reject United’s argument.

In summary, we reverse the circuit court’s conclusion that under Continental’s 1984 and 1985 policies, Pluswood expected the property damage that transpired during those years. However, we affirm the circuit court’s interpretation of the sistership exclusion and its refusal to modify the summary judgment based on discovery grounds.

Affirmed in part; reversed in part.

CAMPBELL and O’CONNOR, JJ., concur.

      No discussion of the endorsement’s potential coverage has been provided as a result of the conclusion reached on the first issue.