author: JUSTICE KNECHT JUSTICE LUND,

text:
    JANIS E. SCHROCK, Plaintiff-Appellee, v. CALVIN SHOEMAKER et al., Defendants and Third-Party Plaintiffs-Appellees (Bash and Schrock, Inc., Third-Party Defendant-Appellant).
    Fourth District
    No. 4 — 92—0959
    Argued April 14, 1993.
    Opinion filed June 29, 1993.

      LUND, J., specially concurring.
    Murvel Pretorius, Jr. (argued), John P. Fleming, and Scott R. Paulsen, all of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellant.
    David B. Mueller (argued), of Cassidy & Mueller, of Peoria, for appellees Calvin Shoemaker and Erwin Goldfarb.
    Harlan Heller and Rodney L. Smith (argued), both of Heller, Holmes & Associates, P.C., of Mattoon, for appellee Janis E. Schrock.
   JUSTICE KNECHT

delivered the opinion of the court:

This case arises from an interlocutory appeal granted by a Champaign County trial judge. The issues certified to this court are (1) whether a recovery of death benefits by plaintiff, Janis E. Schrock, pursuant to section 9 of the Structural Work Act (Work Act) (Ill. Rev. Stat. 1989, ch. 48, par. 69), is subject to a lien, credit, or offset based on payments made by a third-party defendant employer, pursuant to section 7 of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.7); and (2) if not, whether an employer who pays benefits under section 7 of the Act can be subjected to a third-party claim for contribution in a death case brought under the Work Act.

Plaintiff’s recovery is not subject to a lien, credit, or offset. Although the third-party plaintiffs can file a contribution claim against the deceased’s employer, the employer’s liability is limited to its liability under the Act.

I. Facts

The underlying litigation stems from a construction accident which occurred on June 13, 1989, in Champaign, Illinois. Adlai J. Schrock was working at a construction site owned by Calvin Shoemaker and Erwin Goldfarb. Adlai was employed by Bash & Schrock, Inc. (Bash & Schrock), the contractor for the construction site. Adlai fell off a scaffold while working at the site. He later died from his injuries.

Pursuant to section 7 of the Act, Adlai’s surviving spouse, Janis, began receiving death benefits from Bituminous Insurance Company. Janis later filed a complaint against defendants, Schoemaker and Goldfarb, based on the Work Act. She alleged, in pertinent part:

“Plaintiff has lost the service of her husband, which, prior to his said death, had been of great value to her, and she has been deprived of his affection, society, companionship, and consortium, as well as the services which her husband could and would have performed for her.”

In August 1991 defendants filed a third-party complaint against Bash & Schrock seeking contribution pursuant to section 2 of the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1989, ch. 70, par. 302). In November 1991 Bash & Schrock filed a petition to intervene as lien claimant pursuant to section 5 of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.5).

The trial judge denied the petition to intervene in June 1992. Bash & Schrock also sought a judgment based on the pleadings or a summary judgment order. The third-party plaintiffs, Shoemaker and Goldfarb, argued the relief sought by Bash & Schrock would deprive them of their statutory right to contribution and thereby make them potentially liable for damages in excess of their pro rata share of their common liability. They sought denial of Bash & Schrock’s motions or, alternatively, argued they should receive a credit against any judgment in favor of Janis to the extent of any benefits received by her under the Act.

Bash & Schrock’s motion to reconsider and its other motions were denied. However, the trial judge concluded the issues raised involved questions of law about which substantial grounds for differences of opinion existed and that an immediate appeal would materially advance the ultimate termination of the litigation. This court granted leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308).

II. Parties’ Views

The third-party defendant, Bash & Schrock, contends the trial judge erred by disallowing its request for a lien or setoff against payments it made to plaintiff based on its liability under the Act, while sustaining Shoemaker and Goldfarb’s contribution action against it. Bash & Schrock contends this ruling is contrary to the Illinois Supreme Court’s ruling in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, because it may be held liable for an amount in excess of its liability under the Act.

Shoemaker and Goldfarb contend that regardless of whether Bash & Schrock is entitled to a lien under section 5(b) of the Act, they have a statutory right to contribution from Bash & Schrock pursuant to section 2 of the Contribution Act. After providing a historical overview of the rule which apportions liability between tortfeasors, they concede the Kotecki ruling limits an employer’s liability for contribution to an amount not greater than its workers’ compensation liability. However, if Janis’ cause of action is distinct from the claim for which she received workers’ compensation benefits, the Act would not be involved in her Work Act claim and therefore the amount of contribution which they can seek from Bash & Schrock should be based on its pro rata liability.

Bash & Schrock and Shoemaker and Goldfarb contend the trial judge’s ruling provides the potential for a double recovery by Janis because she received compensation under the Act and she would now be permitted to recover for the same injuries under the Work Act.

They also contend courts of review in the first, third, and fifth districts have wrongly concluded that, under circumstances similar to those presented in this case, a concern about potential double recovery did not permit an employer to obtain a lien on recoveries made pursuant to the Work Act. DiVarco v. W.J. Lazynski, Inc. (1990), 199 Ill. App. 3d 808, 557 N.E.2d 577; Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 426 N.E.2d 614; Liberty Mutual In surance Co. v. Lloyd Schoenheit Truck & Tractor Service, Inc. (1989), 191 Ill. App. 3d 578, 547 N.E.2d 1272.

Janis contends the trial judge’s ruling was correct because her cause of action brought against Shoemaker and Goldfarb is a distinct cause of action brought on behalf of a dependent of a deceased person in the dependent’s individual capacity. No lien can attach to benefits received by her under the Act based on her claim brought under the Work Act because section 5 of the Act (the lien provision) explicitly limits the employer’s lien to third-party actions in which the employee or his personal representative is a plaintiff.

She also appears to argue Shoemaker and Goldfarb are entitled to contribution based on Bash & Schrock’s liability and not limitations provided by the Act or Kotecki.

III. Analysis

A. Statutory Provisions

1. Workers’ Compensation Act

Janis received workers’ compensation benefits pursuant to section 7 of the Act, which states, in pertinent part:

“The amount of compensation which shall be paid for an accidental injury to the employee resulting in death is:
(a) If the employee leaves surviving a widow *** the applicable weekly compensation rate computed in accordance with subparagraph 2 of paragraph (b) of Section 8, shall be payable diming the life of the widow *•**.” Ill. Rev. Stat. 1991, ch. 48, par. 138.7(a).

Section 5 of the Act is also at issue:

“(a) No common law or statutory right to recover damages from the employer, his insurer *** is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.
* * *
(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 48, par. 138.5.

Section 11 of the Act is also relevant:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.” Ill. Rev. Stat. 1991, ch. 48, par. 138.11.

2. Structural Work Act

Section 9 of the Work Act, under which Janis seeks compensation from Shoemaker and Goldfarb, states:

“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, á right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the surviving spouse of the person *** who [was], before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.” Ill. Rev. Stat. 1991, ch. 48, par. 69.

3. Right of Contribution

Section 302(a) of the Contribution Act provides:

“(a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Ill. Rev. Stat. 1991, ch. 70, par. 302(a).

B. Lien, Setoff, or Credit?

Bash & Schrock and Shoemaker and Goldfarb rely on Kotecki in arguing because Bash & Schrock’s liability is limited to its coverage under the Act, absent either a lien or setoff on its behalf, or a credit on behalf of Shoemaker and Goldfarb, plaintiff will be permitted to seek double recovery for her husband’s death.

In Kotecki, the plaintiff injured his hand in an agitator while he was performing employment duties. Plaintiff filed a products liability cause of action against the manufacturer of the agitator. The manufacturer filed a third-party complaint against plaintiff’s employer, seeking contribution from the employer in an amount equal to the employer’s pro rata share of their common liability. Kotecki, 146 Ill. 2d at 155-56, 585 N.E.2d at 1023-24.

The employer filed a motion to strike the manufacturer’s ad damnum clause, asserting that section 5 of the Act limits the employer’s liability to an amount not greater than the employer’s workers’ compensation liability. The Illinois Supreme Court agreed. It adopted the rule announced by the Minnesota Supreme Court in Lambertson v. Cincinnati Corp. (1977), 312 Minn. 114, 257 N.W.2d 679, that the amount of an employer’s contribution is limited by its workers’ compensation liability. It cited the reasoning in Lambertson that the central concept behind workers’ compensation is that the employee and employer receive benefits of a guaranteed, fixed schedule, no-fault recovery system which constitutes the exclusive liability of the employer to his employee. Kotecki, 146 Ill. 2d at 162-63, 585 N.E.2d at 1026.

The Kotecki court concluded the Minnesota rule represented the most equitable balance between the competing interests of the employer under the Act (limiting employer liability) and the third-party tortfeasor under the Contribution Act, which requires contribution from tortfeasors (including employers) in proportion to their relative fault. Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1027-28.

Bash & Schrock contends Kotecki, and not the cases relied on by Janis, controls the outcome of this case. Shoemaker and Goldfarb concede Kotecki limits an employer’s liability when the Act is involved; however, they contend if Janis’ cause of action is distinct from the injury for which she received benefits from the Act, its contribution claim against Bash & Schrock should not be limited by the Kotecki ruling, but rather should be based on Bash & Schrock’s pro rata liability.

Janis contends Kotecki is distinguishable because there, the employee was not deceased and he was the party seeking additional compensation. In contrast, she seeks compensation under the Work Act on her own behalf. She relies primarily on Gramse (100 Ill. App. 3d 100, 426 N.E.2d 614), Liberty Mutual (191 Ill. App. 3d 578, 547 N.E.2d 1272), and DiVarco (199 Ill. App. 3d 808, 557 N.E.2d 577) in arguing the contention she could receive double recovery is unfounded.

In Gramse (100 Ill. App. 3d at 101-03, 426 N.E.2d at 615-16), plaintiff filed an action under the Work Act as mother and next friend of her three minor children. Her husband’s workers’ compensation carrier had previously begun paying benefits to plaintiff, the decedent’s spouse, and to decedent’s children. The carrier tried to assert a lien on the settlement proceeds of the suit filed under the Work Act. The Third District Appellate Court concluded the trial judge properly ruled the lien should not attach to the settlement proceeds.

The Gramse court noted section 5(b) of the Act explicitly limits an employer’s lien to third-party actions brought by the employee or his personal representative. A lien cannot attach where the employee’s widow individually seeks compensation. Gramse, 100 Ill. App. 3d at 102-03, 426 N.E.2d at 615-16.

The employer in Gramse also argued there was no distinction between the “widow” as plaintiff under the Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 69 (“widow” currently referred to as “surviving spouse”)) and the decedent’s “personal representative” under the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(b)).

The court reasoned that monies paid by an employer’s insurance carrier pursuant to the Act were to compensate the decedent for his lost wages and medical bills, whereas Work Act claims brought by a widow in her own right were claims asserted by the widow for compensation for her source of support. Gramse, 100 Ill. App. 3d at 104, 426 N.E.2d at 617.

Similarly, Janis has filed a claim against Shoemaker and Goldfarb, seeking compensation for loss of consortium. This claim is wholly unrelated to a claim brought by an employee or by the personal representative of an employee. In these instances, compensation would be sought for loss to the employee. In Janis’ case, she seeks compensation for her individual loss.

Moreover, she does not seek compensation for loss of financial support; rather, the basis for her Work Act claim is loss of consortium, which is not compensable under the Act. Under the Act, Janis’ recovery is based on her deceased husband’s earnings. The only additional recovery she would have received would have been $4,200 for burial expenses or certain medical expenses if the employer failed to provide her husband necessary first aid, medical, surgical, or hospital service. See Ill. Rev. Stat. 1991, ch. 48, pars. 138.7(a), (f).

Liberty Mutual also supports Janis’ contention the trial judge properly concluded no lien, offset, or credit could attach to her potential recovery under her claim for loss of consortium filed pursuant to the Work Act. In Liberty Mutual (191 Ill. App. 3d at 579, 547 N.E.2d at 1273), the workers’ compensation carrier sought a declaratory judgment that it was entitled to a lien on settlement proceeds to the extent of workers’ compensation benefits paid.

The Fifth District Appellate Court concluded no lien could attach because the substance of the complaint was a Work Act claim although the claim was brought by the personal representative as administrator of the decedent’s estate pursuant to section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2). No workers’ compensation lien could accrue because the cause of action was filed for the benefit of decedent’s widow and next of kin and not on behalf of the decedent. Liberty Mutual, 191 Ill. App. 3d at 582, 547 N.E.2d at 1274-75.

The First District Appellate Court has also ruled an employer could not attach a workers’ compensation lien upon a settlement of a Work Act suit brought by the widow of a deceased employee. The DiVarco court also looked to section 5(b) of the Act and concluded it explicitly entitled an employer to impress a lien on actions brought by the injured employee or by her personal representative. DiVarco, 199 Ill. App. 3d at 811, 557 N.E.2d at 580.

The employer argued denying a lien would frustrate the policy reasons behind section 5(b) of the Act by providing a double recovery. However, the court concluded the widow’s cause of action under the Act was a derivative claim, based on the rights of the employee to be compensated by his employer, whereas her claim under the Work Act was an independent cause of action and was personal to her. DiVarco, 199 Ill. App. 3d at 811, 557 N.E.2d at 579.

Bash & Schrock argues these cases suffer from strained logic. It also contends these cases should not be followed because they (1) were decided before Kotecki, (2) did not involve a contribution claim, and (3) did not consider sections 5(a) or 11 of the Act. However, these cases address when a section 5(b) lien (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(b)) can be placed on a plaintiff’s claim.

Moreover, section 5(a) addresses when a plaintiff can bring a direct cause of action against an employer that provides workers' compensation benefits. Janis' action is being brought against Shoemaker and Goldfarb, who are in turn seeking contribution from Bash & Schrock. Section 11 of the Act states the provisions under the Act are the total measure of an employer's liability for damages sustained by an injured employee. Neither clearly indicates these limitations apply to a dependent of a deceased employee who brings an action on his or her own behalf.

An additional Illinois Supreme Court case supports Janis' arguments and reliance on the above cases. In Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69, the Illinois Supreme Court concluded the wife of an injured employee who brings suit for loss of consortium is not subject to a workers' compensation lien under section 5(b) of the Act although she brought her claim in conjunction with a claim raised by her husband, the injured employee, and filed suit against a third party for negligence. The court stated:

"[A]n action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society [Citations.] The Department's lien under section 5(b) of the Workers' Compensation Act did not attach to that portion of the settlement proceeds designated as a settlement of Mrs. Page's claim for loss of consortium." Page, 119 Ill. 2d at 48, 518 N.E.2d at 72.

Bash & Schrock contends Page is unlike this case because (1) the spouse in Page received no workers' compensation benefits, so it follows that a lien could not attach to her settlement; (2) the wife's claim for loss of consortium in Page was different because the wife had not been a party to the civil suit filed by her husband; (3) although she had received consideration in the settlement of her husband's claim, she had not asserted a cause of action; and (4) Page did not involve the competing interests between the Contribution Act and the Act.

Although the Contribution Act was not evaluated, the court considered the lien provision of the Act when a settlement had been reached between plaintiff and defendant, and plaintiff's employer intervened seeking a lien against an amount of the settlement. (Page, 119 Ill. 2d at 45, 518 NE2d at 70) The distinctions relied on by Bash & Schrock do not defeat the view that Janis' cause of action filed under the Work Act is an independent claim for which she was not cornpensated, and will not be compensated through the benefits received from workers’ compensation.

Nor does Page support Bash & Schrock’s contention it has a right to reimbursement. Although, as noted by Bash & Schrock in its reply brief, Page recognized an employer’s right to reimbursement, the reimbursement was being received from the employee’s total settlement (Page, 119 Ill. 2d at 47, 518 N.E.2d at 71) and not from someone bringing an independent cause of action such as Janis.

Bash & Schrock also directs us to section 5(a) of the Act, which states, in pertinent part: “No common law or statutory right to recover damages from the employer, *** other than the compensation herein provided, is available to any employee *** to any one wholly or partially dependent upon [the employee].” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a).

Janis has filed a Work Act claim against the property owners, Shoemaker and Goldfarb, not against the employer, Bash & Schrock. Similarly, the case cited by Bash & Schrock as support for consideration of section 5(a) of the Act does not control under these circumstances. Contrary to the facts in this case, in Duley v. Caterpillar Tractor Co. (1969), 44 Ill. 2d 15, 16-17, 253 N.E.2d 373, 373-74, the plaintiff sought compensation from the employer in addition to that provided under the Act. However, section 5(a) of the Act, as discussed below, provides evidence Shoemaker and Goldfarb cannot seek contribution beyond Bash & Schrock’s workers’ compensation liability.

Moreover, the other cases relied on by Bash & Schrock do not involve a surviving spouse seeking additional compensation. In Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448, 450-57, 524 N.E.2d 586, 587-90, the plaintiff was an injured employee and the issue was whether the settling tortfeasor had to extinguish the employer’s workers’ compensation liability before bringing a contribution action against employer.

In Blagg v. F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 199-201, 572 N.E.2d 920, 926-927, the issue addressed by the Illinois Supreme Court was whether the wife’s award for loss of consortium resulting from her husband’s work-related injuries should be reduced by the degree of comparative fault of her husband. Moreover, although the court concluded the loss of consortium claim was derivative, this conclusion was based on the relative fault of the injured employee for the injuries incurred. Although comparative fault has not been raised in the present case, it does not involve fault attributed to the plaintiff or to her deceased husband; rather, liability would be attributed only to Bash & Schrock or Shoemaker and Goldfarb.

Janis’ cause of action under section 9 of the Work Act is brought, not as Bash & Schrock’s employee or as decedent’s personal representative, but for herself individually for loss of consortium she incurred because of decedent’s death. Section 5(b) of the Act, which entitles an employer to a lien based on payment made, does not control in this case. Janis did not file suit as the personal representative of decedent’s estate. Ill. Rev. Stat. 1991, ch. 48, par. 138.5(b).

C. Double Recovery?

Both Bash & Schrock and Shoemaker and Goldfarb contend Janis could potentially receive double recovery if the lien, setoff, or credits are not permitted. The cases relied on by these parties are distinguishable.

In Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 311, 546 N.E.2d 524, 525, the employee plaintiff entered a settlement agreement with his employer after being injured at work. Plaintiff had also brought an action against the general contractor based on negligence. The court concluded the agreed-upon amount paid to the employee by his employer should be set off against any additional recovery the employee could be awarded from the general contractor. Wilson, 131 Ill. 2d at 324, 546 N.E.2d at 532.

Similarly in Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 558, 411 N.E.2d 217, 222, relied on by Shoemaker and Goldfarb, plaintiff’s settlement with the city’s insurance carrier, in exchange for a covenant not to sue on a negligence count, was set off against damages awarded on the trespass count filed against the city. Plaintiff sought compensation for damages sustained to her property because of sewage back up.

In the present case, based on the language of the complaint, Janis seeks compensation for an injury for which she has not been compensated. Her compensation under the Act was based on the deceased’s earnings. She now seeks compensation for her emotional injuries sustained because of her husband’s loss. See McFadden v. St. Paul Coal Co. (1914), 263 Ill. 441, 443, 105 N.E. 314, 314 (damages sought in second suit were the same, contrary to distinct damages sought in the present case).

Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 3, 269 N.E.2d 295, 296, also does not control here because it did not involve liability between two tortfeasors; rather, the case evaluated the interplay between the Act and payments made under the decedent’s uninsured motorist insurance policy.

Contrary to Shoemaker and Goldfarb’s claim, J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106, 483 N.E.2d 273, does not support a conclusion Janis would receive double recovery. J.L. Simmons (108 Ill. 2d at 112, 483 N.E.2d at 276), as it might relate to this case, involved how the plaintiff employee’s negligence should affect the defendant’s liability.

Janis’ claim under the Work Act is unlike the actions relied on by Bash & Schrock and Shoemaker and Goldfarb because she seeks compensation for injuries not yet compensated. Moreover, she received workers’ compensation benefits based on her deceased husband’s earnings based on lost wages. She now seeks compensation from Shoemaker and Goldfarb under a different statutory provision for her individual injuries sustained because of her husband’s death.

D. Extent of Statutory Right to Contribution

Shoemaker and Goldfarb concede that pursuant to Kotecki, Bash & Schrock’s amount of contribution would be limited to the amount of workers’ compensation to which Janis is entitled. They contend, however, they are entitled to this amount of contribution irrespective of whether a lien or setoff is approved.

If this court concludes a lien, setoff, or credit is not permitted, Shoemaker and Goldfarb contend their contribution claim based on the parties’ share of liability should be permitted to stand. They conclude such by arguing because the Act is not involved in Janis’ action against it, the Contribution Act controls.

Janis seems to argue Bash & Schrock’s contribution should be limited only by its pro rata share of liability. She contends, because of the distinguishable circumstances under which Kotecki was decided, Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, controls this issue. In Doyle, the Illinois Supreme Court concluded an employer is liable for contribution to a third party regardless of the Act. However, it also noted that “some accommodation” between the Contribution Act and the Act would be necessary in the future. Doyle, 101 Ill. 2d at 14-15, 461 N.E.2d at 388-89.

Shoemaker and Goldfarb’s argument the Act is not involved is not persuasive. Section 11 of the Act states “[t]he compensation herein provided *** shall be the measure of the responsibility of any employer.” (Ill. Rev. Stat. 1991, ch. 48, par. 138.11.) This provision was also important to the Kotecki ruling. Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1027.

Kotecki controls a contribution claim as between a third-party plaintiff owner of property on which employee’s fatal injury occurred and a third-party defendant employer of the injured employee, just as it would where a manufacturer of the product which injured plaintiff sought contribution from the plaintiff’s employer.

Jams’ action arises from the death of her husband while performing an employment-related task. The Act limits a third party’s contribution to the amount of workers’ compensation liability. Kotecki did not limit its ruling to a particular form of action. Although the action was based on products liability, this point seemed irrelevant to the court’s ruling.

Shoemaker and Goldfarb can seek contribution from Bash & Schrock, but only to the extent of its liability under the Act. In addition, section 5(a) of the Act provides support for this limitation because that provision states “[n]o common law or statutory right to recover damages from the employer *** other than the compensation” provided within the Act is available, whether the employee or “any one otherwise entitled to recover damages” for the injury. (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a).) Shoemaker and Goldfarb are, indirectly, recovering from Bash & Schrock by seeking contribution from it.

IV. Conclusion

Plaintiff’s potential award under her claim brought under the Work Act is not subject to a lien, credit, or setoff. Shoemaker and Goldfarb can seek contribution from Bash & Schrock, but their claim is limited to Bash & Schrock’s total liability under the Act. If Bash & Schrock continues payments to plaintiff, and reaches their maximum liability through these payments, Shoemaker and' Goldfarb will collect nothing in their contribution claim.

Accordingly, we answer the first question certified in the negative, and the second in the affirmative but the employer’s liability is limited to its liability under the Act.

Affirmed.

GREEN, J., concurs.

JUSTICE LUND,

specially concurring:

Justice Knecht’s opinion is based upon the assumption that loss of consortium is not included in benefits received by Janis Schrock under the workers’ compensation monthly payment. Black’s Law Dictionary defines consortium as follows:

“Conjugal fellowship of husband and wife, and the right of each to the company, co-operation [sic], affection, and aid of the other in every conjugal relation. [Citations.]
The term includes the exclusive right to the services of the spouse, and to his or her society, companionship, and conjugal affection.” Black’s Law Dictionary 382 (4th ed. 1968).

In Tjaden v. Moses (1968), 94 Ill. App. 2d 361, 365, 237 N.E.2d 562, 565, the court declared a wife’s right of action for loss of consortium “a separate and distinct action although dependent upon the liability *** for the injuries to the husband.” However, the majority opinion in Dini v. Naiditeh (1960), 20 Ill. 2d 406, 170 N.E.2d 881, which recognized a woman’s right to a cause of action for loss of consortium, contained the following statement:

“This argument emphasizes only one element of consortium— the loss of support. Consortium, however, includes, in addition to material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity. (Montgomery v. Stephan [(1960), 359 Mich. 33, 101 N.W.2d 227]; Hitaffer v. Argonne Co. [(1950), 183 E2d 811,] 814.) Consequently, in this action the wife is not suing for merely loss of support, but for other elements as well.” (Dini, 20 Ill. 2d at 427, 170 N.E.2d at 891.)

While this statement appears to include loss of income in the term “loss of consortium,” I conclude that such an interpretation is erroneous. The Dini opinion indicated that historically the right to loss of consortium was reserved to the husband, and this was at a time when the women were more likely to be homemakers not employed outside the home.

In determining that “loss of consortium” does not include loss of income, I conclude, as did Justice Knecht, that loss of consortium is not a part of workers’ compensation payments. As compensation for loss of consortium is not included in workers’ compensation payments to Janis, I conclude that it escapes logic to hold the employer can obtain a lien against a possible recovery for loss of consortium by using the authority under section 5(b) of the Act. How can an employer recover benefits the employer does not pay?

It would seem that since the loss of consortium is not included in workers’ compensation, an award for loss would not result in double recovery if the employer is deprived of the right of a lien against any judgment Janis might obtain. This does not answer the question of whether defendants Shoemaker and Goldfarb can obtain contribution from the employer.

Shoemaker and Goldfarb are seeking contribution for an alleged loss which is not being paid by workers’ compensation benefits. Why should the employer not be subject to the unlimited right of contribution as set forth in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and Doy W. The answer is that unlimited contribution should not be allowed because the employer may be forced to pay too much, thereby losing protection supposedly provided under the Act. (See Kotecki, 146 Ill. 2d at 163-65, 585 N.E.2d at 1027.) I recognize Kotecki was not concerned with an element of damage not included in the compensation award.

Under section 5(a) of the Act, the limitation of actions against the employer for “common law or statutory right to recover damages from the employer” extends to “any one wholly or partially dependent upon” the employee. (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a).) This limitation is broad and I conclude that it does include the common-law right to recovery for loss of consortium, even though the loss of consortium is not a part of workers’ compensation payments. The insuring aspect of the Act is a valuable social benefit and the benefit adequately compensates for limitations placed upon contribution from the employers. I conclude here, even though any judgment against defendants will be for loss of consortium, the employer’s liability for contribution is limited to the employee’s compensation liability. A decision to the contrary would depreciate the benefit employers receive in exchange for absolute liability for injuries during employment.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    ECONOMY PREFERRED INSURANCE COMPANY, Plaintiff-Appellant and Cross-Appellee, v. JERSEY COUNTY CONSTRUCTION, INC., et al., Defendants and Third-Party Plaintiffs-Appellees and Cross-Appellants (Paul Miller Insurance Agency, Inc., Third-Party Defendant).
    Fourth District
    No. 4 — 92—0979
    Argued June 16, 1993.
    Opinion filed June 29, 1993.

      Karen L. Kendall and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, of Peoria, and James C. Kearns (argued) and Michael R. Robinson, both of Heyl, Royster, Voelker & Allen, of Urbana, for appellant.
    Eric S. Pistorius (argued), of Law Office of George P. Wittman, of Jerseyville, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

Nelson Miller purchased vehicle insurance from the Economy-Preferred Insurance Company (Economy Insurance), with the policy being issued in the name of Jersey County Construction, Inc. (Jersey Construction). Nelson Miller was president and manager of Jersey Construction. Nelson’s daughter, Tammy, was injured on July 14, 1985, while a passenger on an uninsured motorcycle operated by an uninsured motorist. Nelson claims Tammy’s accident was covered by Economy Insurance’s uninsured motorist (UM) provisions in the policy issued to Jersey Construction.

Economy Insurance filed this declaratory judgment action, seeking a determination that the UM coverage in the Jersey Construction policy did not cover Tammy’s accident. On May 6, 1992, the circuit court of Jersey County granted Jersey Construction and Tammy’s motion for summary judgment and denied Economy Insurance’s motion for summary judgment. On November 4, 1992, the trial court denied a motion for rehearing.

The trial court’s decision basically held that while the policy was issued to a corporation, because it contained the term “family members” and autos driven by Miller’s family were insured, the uninsured coverage extended beyond the corporation to the Miller family. Economy Insurance’s argument that the policy contained no ambiguity was denied. The trial court said ambiguity existed and that including the term “family members” must be interpreted as insuring Nelson, his wife, and his children.

Economy Insurance appeals, arguing the trial court erred in holding the policy insuring Jersey Construction was ambiguous and in extending coverage to cover Tammy’s accident.

We now address whether the relevant clause of the insurance policy is clear and unambiguous. If the clause is ambiguous, it must be construed in favor of the insured. If it is unambiguous, there is no need for construction and the clause may be applied as written, unless it contravenes public policy. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539, 541.

The policy with which we are concerned defines “you” and “your” to “mean the person or organization shown as the named insured.” The “insured” is “[y]ou are an insured for any covered auto.” Under “Who is Insured,” number one is “You or any family member.” Under the heading “Uninsured Motorists Insurance” (UM), specifically part IV(B)(1), the policy provides:

“We will pay all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle. The damages must result from bodily injury sustained by the insured caused by an accident. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the uninsured motor vehicle.”

The policy is a “Preferred Business Auto Policy” and the named insured is “Jersey County Construction, Inc.” The policy listed a 1980 Ford Mustang, a 1984 Ford Escort GT two-door, and a 1980 Lincoln Town Car. The effective date of the policy was March 21, 1985, and the expiration date February 24,1986.

The problem, as recognized by all parties, centers upon the fact that corporations, as well as other businesses, do not have family members. Jersey Construction and Tammy contend the “family members” reference necessarily makes the relevant provisions relating to coverage ambiguous. They then say evidence of family use of the insured autos leads to the conclusion reached by the trial court.

We acknowledge that both counsel have provided citations to those vague rules used in construing contracts in general and, in particular, insurance contracts. The primary objective in construing a contract is to determine and give effect to the intention of the parties at the time they entered into the contract. (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241, 494 N.E.2d 830, 834.) Whether the contract is ambiguous is a question of law, and the court may consider extrinsic evidence provisionally for the limited purpose of determining whether an ambiguity exists. (Zale, 145 Ill. App. 3d at 241, 494 N.E.2d at 834.) An insurance policy is not to be interpreted in a factual vacuum. (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 174, 370 N.E.2d 1044, 1047.) Judicial policy favoring a liberal interpretation of insurance coverage is a policy to ensure compensation of victims as a result of traffic or automobile accidents. Thomas v. Aetna Casualty & Surety Co. (1975), 28 Ill. App. 3d 363, 365-66, 328 N.E.2d 374, 376.

The following cases cited to our court have held that where the insured is a corporation, even though using terms similar to “family members,” UM coverage does not extend to employees or family members of employees for accidents that do not involve occupancy of covered vehicles; these cases hold that corporations cannot have “family members” and apply to everyone from sole owners of the corporation to children of employees of corporations: Polzin v. Phoenix of Hartford Insurance Cos. (1972), 5 Ill. App. 3d 84, 283 N.E.2d 324 (injured was 50% shareholder); Buckner v. Motor Vehicle Accident Indemnification Corp. (1985), 66 N.Y.2d 211, 486 N.E.2d 810, 495 N.Y.S.2d 952 (injured was son of sole shareholder); Sears v. Wilson (1985), 10 Kan. App. 2d 494, 704 P.2d 389 (injured was son of employee who was assigned a corporate auto); Meyer v. American Economy Insurance Co. (1990), 103 Or. App. 160, 796 P.2d 1223 (injured employee was principal shareholder); General Insurance Co. v. Icelandic Builders, Inc. (1979), 24 Wash. App. 656, 604 P.2d 966 (injured was son of sole stockholder of closely held business); Dixon v. Gunter (Tenn. Ct. App. 1982), 636 S.W.2d 437 (injured was president and sole stockholder); Pearcy v. Travelers Indemnity Co. (Fla. Dist. Ct. App. 1983), 429 So. 2d 1298 (injured was son of vice-president); Saffel v. Bamburg (La. Ct. App. 1985), 478 So. 2d 663 (injured was spouse of an employee); Langer v. United States Fidelity & Guaranty Co. (Me. 1988), 552 A.2d 20 (injured was ward of insured, the State of Maine); Pennsylvania Lumbermens Mutual Insurance Co. v. Haney (1988), 189 Ga. App. 216, 375 S.E.2d 293 (auto insured by corporation was owned by mother of injured); Williams v. Florida Insurance Guaranty Association, Inc. (Fla. Dist. Ct. App. 1989), 549 So. 2d 253 (injured was husband of sole owner of corporation); Busby v. Simmons (1991), 103 N.C. App. 592, 406 S.E.2d 628 (injured was daughter who, with her father, worked for and were sole owners of the corporation); and Barnes v. Thames (La. Ct. App. 1991), 578 So. 2d 1155 (injured was employee of corporation which was owned by mother and one other person).

The only case cited to the contrary is Colokathis v. Hartford Accident & Indemnity Co. (1988), 244 Cal. Rptr. 779 (noting California Supreme Court ordered this opinion was not to be officially published). This appellate opinion dealt with the following fact situation. A sole owner and president of a small corporation in Massachusetts was driving a rental automobile in California and was involved in an automobile accident where the other vehicle was uninsured. The only automobile owned by the corporation was driven primarily by the president and insured by Hartford, who listed the corporation as the insured. The California opinion, in holding for the corporation president, stated:

“Colokathis is the principal officer and employee of the company and also she is the primary user of the insured vehicle. This provision is designed to protect an insured from the misery and hardship experienced when injured by an uninsured or financially irresponsible motorist. (See Waite v. Godfrey (1980)[,] 106 Cal. App. 3d 760, 770-771, 163 Cal. Rptr. 881.) Since the corporation cannot collect for personal injuries, the most likely person that should benefit from the paid-for coverage is plaintiff. Accordingly, we conclude that this clause should be interpreted to provide uninsured motorist coverage to plaintiff.
Hartford could have avoided this result simply by modifying the boilerplate language to eliminate this clause in corporate policies and to reduce the premium charged for uninsured motorist coverage proportionally. This would have the dual effect of removing the underlying ambiguity and alerting plaintiff, as the insured, that she must decide whether she wants to pay an additional premium for personal coverage.” Colokathis, 244 Cal. Rptr. at 782.

Contrary to defendants’ argument, we find the opinion in Polzin to be authority supporting plaintiff’s position. In that case, the 50% owner of the insured corporation not only purchased the insured auto and transferred title to the insured corporation, but was also the principal driver. He was injured while a pedestrian, as the result of negligence of an uninsured driver. Polzin claimed coverage under “family protection coverage” of the policy, contending any other interpretation would make the endorsement a nullity. While the decision denying Polzin coverage is not right on point, the refusal of the Polzin court to make a new contract for the parties instructs as to whether the term “family member” creates an ambiguity which would justify amendment of the policy to extend coverage to those not “insured.”

Being realistic, we recognize conflicting issues influence decisions in cases such as this. In addition to the rules of law quoted in this opinion, we are aware of the confusion resulting from the continuous use of boilerplate terminology such as “family members.” We also are aware that the “Preferred Business Auto Policy” may have allowed for a business deduction on tax returns for all vehicle insurance expense. Because the policy was issued through an agency, the possibility exists that Economy Insurance issued the policy assuming corporation ownership of the vehicles and basic corporation use of the vehicles. In addition, it is quite possible the UM coverage for those injured, as was Tammy, was not even considered when the policy was acquired. Regardless, we reach the conclusion that the insurance policy was not ambiguous. In doing so, after considering this case and the others cited herein, we cannot help but question why the form policies have not included a warning that the “family member” reference does not apply when the insured is a corporation or similar-type nonfamily entity.

The policy provides UM coverage benefits for those authorized drivers of the insured vehicles. Thus, if “family members” were driving the vehicles, they would be covered. However, it still appears that “family members” is a nullity when the insured is a corporation. Regardless, the policy lists the corporation as the insured of the “Preferred Business Auto Policy.” To say the policy insured Nelson Miller, and thereby includes his family, would result in a rewriting of the policy. The named insured is not ambiguous; corporations cannot have family members. We hold the policy is not ambiguous and that the trial court’s decision was in error. Summary judgment against Economy Insurance is reversed, and the order denying summary judgment against defendants is reversed.

We reverse and remand with directions for the trial court to grant summary judgment in favor of plaintiff against defendants Jersey Construction and Tammy Miller. The third-party complaint and the cross-complaint are still pending actions.

Reversed and remanded with directions.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH ALLEN STANLEY, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0246
    Argued December 9, 1992.
    Opinion filed June 30, 1993.

      Daniel D. Yuhas and Lawrence J. Essig (argued), both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Following a jury trial, defendant Keith Allen Stanley was convicted of first degree murder and aggravated battery. (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 12 — 4.) The trial court sentenced Stanley to concurrent terms of 95 years’ imprisonment for murder and 10 years’ imprisonment for aggravated battery. Stanley appeals the convictions and sentences, arguing: (1) the trial court erred in denying his motion attacking the propriety of the jury selection process; (2) the trial court erred in admitting blood-frequency probabilities; (3) the conviction for aggravated battery should be vacated as an included offense of first degree murder; and (4) defense counsel’s failure to present mitigating evidence at sentencing amounted to ineffective assistance of counsel. We affirm in part and vacate in part.

On April 18, 1991, defendant was charged by information with four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3)) and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)). The charges stemmed from an incident that occurred on or about January 6, 1991, in which John Miletta was stabbed and killed. The incident occurred at Miletta’s home, where he lived alone. Miletta was 73 years old at the time of his death, suffered from Parkinson’s disease and Alzheimer’s disease, and walked with a cane.

Carolyn Madison testified she met John Miletta in 1985 or 1986, and did housework for him for four to five years prior to his death. Miletta paid her approximately $200 per month for housekeeping. After four to six months, the two developed a sexual relationship. Madison testified she met defendant at a rehabilitation center in October 1990 and they became intimately involved shortly thereafter. Defendant began going to Miletta’s house to help Madison with the housework. Madison testified that she and defendant forged some of Miletta’s checks.

On January 4, 1991, Madison held a birthday party for her son at her mother’s house, attended by both Miletta and defendant. She drove Miletta home sometime between 7:30 and 9 p.m. She stayed at Miletta’s home overnight and awoke at approximately 10:30 a.m. She and Miletta then got dressed and went to the bank. Miletta attempted to cash a check at the drive-in window but the teller informed him his account balance was extremely low. Miletta went inside the bank and was later joined by Madison. A bank officer told Miletta his account was almost empty and that someone was forging his checks. Madison then told Miletta that defendant was the person forging Miletta’s checks. Miletta appeared visibly upset when the two left the bank at approximately 1 p.m.

Madison returned home alone at approximately 3:30 p.m. where defendant was waiting for her. Madison accused defendant of stealing from Miletta and informed him that Miletta had discovered the forgeries. At approximately 7 p.m., she returned to Miletta’s house, where she received several phone calls from defendant. Madison told defendant she would meet him at a McDonald’s restaurant. She left Miletta’s house at approximately 9:30 p.m. to meet defendant but did not see him at the McDonald’s restaurant so she went home. At approximately 4 a.m., Madison was awakened by defendant, who told her he had driven to Miletta’s house but did not see the car so he left. Defendant was wearing jeans, a green army jacket, and black shoes. Defendant told Madison he was going to leave Springfield and that he had left his mark on Springfield. Defendant stayed with Madison overnight and awoke at approximately 10:30 a.m. Madison drove defendant to the place he was staying at noon, then drove alone to Miletta’s house. She went inside but did not see Miletta. She returned several times to Miletta’s house but each time she found the house empty. The next morning Madison returned to Miletta’s house but he was still not there. Later, the police arrived and she allowed them to search the house. At that time, the police discovered Miletta’s body covered with clothes in the basement.

The police noticed what they believed to be blood on the carpeting, stairway, and kitchen floor. Near the body the police discovered a dented portable propane torch which appeared to have blood smeared on the canister. The police also observed a bedsheet and paper sack covering what appeared to be a blood trail from the | body. When the clothes around the body were removed, the police found the body lying facedown with arms above the head. The police recovered a mop which was behind the kitchen door leading to the basement. The mop had a reddish stain on the sponge and on the handle, and there appeared to be hair on the end of the mop near the sponge. The police also found fingerprints in the reddish stain on the mop handle.

The body had approximately 19 wounds of varying degrees. Dr. Travis Hindman observed two stab wounds in the right shoulder, three wounds to the right of the midline chest, three wounds on the left side at the base of the neck as well as just in front of the left shoulder, a wound along the inside of the lower lip from the left side with damage to a partial denture, a wound over the surface of the base of the thumb joint, a wound at the base of the index finger of the left hand, two wounds to the left side of the back, a wound at the base of the skull on the left side, a wound at the base of the neck, and several wounds on the right side of the back. Hindman stated that some of the injuries were compatible with wounds caused by a knife. Hindman testified that significant force was required to cause the injuries to the lower lip and chest wall, and fracture the skull. He opined the cause of death was hemorrhage due to multiple stab wounds to the body. He testified that the mop and propane tank found at Miletta’s house could have caused several of the wounds observed on the back of the skull.

Madison testified that defendant did not like Miletta and had previously told Madison that he would “fix it” so she didn’t have to go out there anymore. Madison also recalled that on a previous occasion, when she stayed at Miletta’s house, the defendant had discovered her and Miletta sleeping together. While holding a hand sickle, defendant told her that he could have killed both of them. Madison also testified she recalled seeing a knife holder in the kitchen with a full set of six knives. This set was later recovered in the spare bedroom of Miletta’s house with only two knives. She also stated that a set of keys recovered at the foot of the stairs by the police belonged to defendant.

On January 8, 1991, the Madison County sheriffs department arrested defendant. Defendant did not admit to the crime but explained that on the night in question he was at a local tavern and eventually went to Madison’s house at 3 a.m. Defendant told the police that on the following day he left Springfield for East St. Louis.

At trial, the court admitted the mop with the bloody fingerprint, which was shown to match a fingerprint of the defendant, and defendant’s green army jacket and shoes, which were both bloodstained. The jury returned guilty verdicts of first degree murder and aggravated battery. At sentencing, the court found in aggravation that the victim was over 60 years of age and was handicapped, and that the crime was exceptionally brutal and heinous. Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(b)(4)(ii), (b)(4)(iii), (b)(2).

On appeal, defendant initially contends the trial court erred in denying his motion challenging the jury selection. During jury selection, defendant made an oral challenge to the selection process on grounds that no blacks were in the venire thereby precluding defendant, who was black, from receiving a fair and impartial trial. The trial court replied:

“I’m going to allow you to make that motion, but I am going to continue with the jury process. At this time I haven’t seen a written motion. A motion such as that needs to be in writing so that the State can respond, and during the course of the trial I’ll allow you — you’re not waiving that issue, but we’re going to proceed.”

After the close of the State’s evidence, on the fourth day of the jury trial, defendant filed his written motion. The trial court denied the motion as untimely. At the hearing on defendant’s post-trial motion, defendant again challenged the jury selection process. In denying the motion, the trial court stated that “no evidence” had been presented to show any pattern of excluding blacks from the jury.

Section 114 — 3 of the Code of Criminal Procedure of 1963 expressly provides that an objection to the manner in which a jury panel has been selected or drawn “shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn” and such motion “shall not be heard after a jury has been sworn to hear the cause.” (Ill. Rev. Stat. 1989, ch. 38, pars. 114 — 3(b), (a).) The Illinois Supreme Court has held that such an objection is to be made before the jury has been sworn. (People v. Gill (1973), 54 Ill. 2d 357, 363, 297 N.E.2d 135, 139.) If a venire has been improperly chosen, the problem may be remedied by the substitution of a new venire if that is done before the jury is sworn. Accordingly, the trial court properly rejected defendant’s motion as untimely. The trial court did not substantially mislead defendant on this issue. The trial court properly noted the objection had to be in writing, that it would allow a written motion to be filed at a later time, and that defendant was not waiving his right to file a motion by proceeding with the selection of the jury, but the trial court did not indicate how much time defendant had to file the motion. The trial court began to say the motion could be filed during the course of the trial, but stopped itself. It was defendant’s obligation to file the motion within the proper time, even if the trial court was unaware what that time might be when it denied the oral motion.

Even if the motion was timely, however, it was properly dismissed because it failed to establish grounds for relief. (People v. Rodriguez (1989), 187 Ill. App. 3d 484, 489, 543 N.E.2d 324, 327-28 (appellate court may sustain judgment on any ground appearing in record, regardless whether the trial court’s reasoning was incorrect or whether that ground was relied on by the trial court); cf. Geaslen v. Berkson, Gorov & Levin, Ltd. (1993), 155 Ill. 2d 223, 230 (appellate court should not consider theories which might have been refuted if they had been raised in trial court).) Here, defendant’s motion did not allege any facts but simply made conclusory allegations of discrimination in the jury selection process. Defense counsel’s cursory observation of racial composition of the jury pool is insufficient to support a claim of racial discrimination. (People v. Lane (1982), 106 Ill. App. 3d 793, 800, 436 N.E.2d 704, 710.) Defendant must present evidence of the method by which the venire was selected to make a prima facie case of systematic and deliberate exclusion of blacks. (People v. Flowers (1985), 132 Ill. App. 3d 939, 941, 478 N.E.2d 524, 525.) Because defendant’s motion was not in writing accompanied by an affidavit and did not allege sufficient facts, the trial court was under no obligation to hold a hearing on it. People v. Hughes (1977), 46 Ill. App. 3d 490, 501, 360 N.E.2d 1363, 1370; People v. Beacham (1980), 87 Ill. App. 3d 457, 467, 410 N.E.2d 87, 95; People v. Rosa (1982), 111 Ill. App. 3d 384, 389, 444 N.E.2d 233, 237.

Next, defendant claims the trial court erred by admitting, over objection, evidence on blood-frequency probabilities because the statistical conclusions in the case lacked foundation and adequate reliability. Prior to trial the defense filed a motion to preclude the State from introducing blood-frequency probabilities, on the grounds that the methodology of electrophoresis was scientifically unacceptable and that the State would be unable to lay a foundation and prove its relevancy to this case. The trial court reserved its ruling and later denied the motion at trial. The evidence at issue concerned the testimony of Phil Sallee, a forensic serologist with the Illinois State Police. Sallee testified to blood testing and blood samples, and used the standard ABO-type testing as well as electrophoresis.

Electrophoresis is the movement of suspended particles through fluid under the action of an electromotive force applied to electrodes in contact with the suspension. (Webster’s New Collegiate Dictionary 364 (1976).) Electrophoresis is one of the steps used in DNA testing:

“The third step is the electrophoresis procedure, which involves placing the DNA in a gel and passing a slight electrical current through the gel. This causes the DNA fragments to move, resulting in their being separated by size from small to large on a continuum.” (People v. Lipscomb (1991), 215 Ill. App. 3d 413, 418, 574 N.E.2d 1345, 1348.)

Electrophoresis of a blood sample causes the different enzymes present in the blood to separate into their protein components. “ ‘After separation, the enzymes and their protein components can be identified and, in this way, the blood can be classified more specifically than is possible by traditional A, B, O blood grouping.’ ” (People v. Partee (1987), 157 Ill. App. 3d 231, 261, 511 N.E.2d 1165, 1184-85, quoting Robinson v. State (1981), 47 Md. App. 558, 574, 425 A.2d 211, 220.) Electrophoresis is generally accepted in the relevant scientific community and is therefore reliable as evidence. (People v. Byler (1989), 133 Ill. 2d 173, 215, 549 N.E.2d 268, 287, citing Partee, 157 Ill. App. 3d at 261, 511 N.E.2d at 1185.) This is not to say that mistakes cannot be made, only that a defendant challenging electrophoresis testimony is not entitled to a hearing pursuant to Frye v. United States (D.C. Cir. 1923), 293 E 1013, but must seek to persuade the jury by cross-examination of prosecution witnesses and presentation of defendant’s own witnesses. People v. Thomas (1990), 137 Ill. 2d 500, 517-18, 561 N.E.2d 57, 63-64, cert. denied (1991), 498 U.S. 1127, 112 L. Ed. 2d 1196, 111 S. Ct. 1092.

The absence of a certain characteristic in the victim’s blood which is present in the sample to be identified (or vice versa) is conclusive proof that the sample does not contain the victim’s blood. The presence of a characteristic both in the victim’s blood and in the sample to be identified does not conclusively establish that the sample contains the victim’s blood, because other individuals could have the same characteristic in their blood. In this latter situation the most that can be said is that the presence of the characteristic makes the fact that the sample contains the victim’s blood more or less probable in accordance with the frequency with which the characteristic occurs in the population at large. (For example, type A blood occurs in approximately 40% of the population.) As modern science identified additional categories of blood types, however, it became possible to establish that the chances of the sampled blood belonging to anyone other than the victim are remote. If a certain characteristic is found in only one-tenth of the population, another is found in only one-fiftieth of the population, and a third is found in only one-seventy-fifth of the population, the chances of the blood containing all three characteristics belonging to anyone other than the victim are only 1 in 37,500 (10 multiplied by 50 multiplied by 75). This is sometimes referred to as the “product rule.” People v. Miles (1991), 217 Ill. App. 3d 393, 404, 577 N.E.2d 477, 484-85.

It may be argued that use of the product rule in the present case was improper. The product rule has been explained as follows: “the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur.” (Emphasis in original.) (People v. Collins (1968), 68 Cal. 2d 319, 325, 438 P.2d 33, 36, 66 Cal. Rptr. 497, 500.) For the product rule to have been properly applied here each of the different blood characteristics found in one particular blood sample must have been mutually independent of each other blood characteristic. If the chances are 1 in 20 that factor X will be present, and 1 in 10 that factor Y will be present, the chances that both X and Y will be present are not 1 in 200 if Y is usually found where X is found. Additionally, the testimony regarding statistical probabilities (e.g., the combination of blood types on the mop handle occurs one time in every 218 Caucasians) indicated the likelihood of the occurrence of blood with certain characteristics in the Caucasian population of the United States. It may have been more useful to know the likelihood of the occurrence of those blood characteristics in Sangamon County, or among the victim’s acquaintances. However, the process of generating probability statistics is an integral part of the DNA identification process and such statistics have previously been held admissible. (Miles, 217 Ill. App. 3d at 405, 577 N.E.2d at 485.) Again it was up to defendant, through cross-examination of prosecution’s witnesses and presentation of his own witnesses, to persuade the jury there were concerns regarding the product rule and statistical probabilities. It was not the State’s obligation to prove that the product rule is generally accepted in the scientific community. That has already been done.

In this case defendant argues there must be something wrong with expert testimony that the blood on the mop handle occurs one time in every 218 Caucasians, the blood on defendant’s shoe occurs one time in every 549,000 Caucasians, and the blood on defendant’s jacket occurs once in every 123,000 Caucasians, when, according to the theory of the prosecution, all three samples came from the same individual, the victim. The explanation appears to be that the expert could not determine all categories of blood type for each sample taken from the three items. The expert was testing for nine different categories of blood type, but on the mop, for example, was able to determine only four. Even though Sallee was not able to get every category of blood type for every sample and even though the figures differed between the mop, shoes, and jacket, the trial court was not required to exclude the statistical analysis. These circumstances would only go to the weight or reliability of the evidence, not its admissibility. The differences between the number of blood types found would simply be considered by the jury in determining whether the expert’s conclusion was correct. Sallee concluded that the stain on the mop, the stain on the shoe, and both stains on the jacket “could have come from John Miletta and did not come from Keith Stanley.”

It is well established that expert testimony is admissible where the expert has knowledge or experience not common to a layman which renders his opinion an aid to the jury in making its determination regarding the facts in issue. (People v. Jordan (1984), 103 Ill. 2d 192, 208, 469 N.E.2d 569, 576.) Evidence is relevant, and admissible, where it fairly tends to prove the offense charged or where it has any tendency to make the existence of any fact that is of consequence to the determination of the cause more or less probable. (Eyler, 133 Ill. 2d at 217, 549 N.E.2d at 288.) The admissibility of evidence is left to the wide discretion of the trial court and its determination will not be reversed on appeal absent an abuse of that discretion. (Eyler, 133 Ill. 2d at 211-12, 549 N.E.2d at 285.) An abuse of discretion may be found where the trial court’s decision is arbitrary, fanciful, unreasonable, or where no reasonable person could take the view adopted by the trial court. (People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519.) The testimony here tended to show that the blood found on the mop, jacket, and shoe likely came from the victim and did not come from defendant. We cannot say the trial court abused its discretion by admitting the expert testimony.

Additionally, we note the evidence showed defendant had a motive for the murder as the victim had discovered that defendant forged some of his checks. Defendant’s fingerprints were found in dried blood on the mop used to strike the victim’s head. Defendant had threatened to kill the victim prior to the murder and admitted to Madison that he left his mark on Springfield before leaving town the day after the murder. Accordingly, even if the frequency calculations should have been excluded, the error was harmless since the evidence of defendant’s guilt was overwhelming. People v. Redman (1985), 135 Ill. App. 3d 534, 541, 481 N.E.2d 1272, 1277.

Defendant also argues the conviction for aggravated battery should be vacated as an included offense of first degree murder. In determining whether an offense is an included offense of another, the courts often look to the statutory definition of each offense, or to the manner in which the offenses are charged. (People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633, 635.) Here defendant was charged with four counts of murder as well as one count of aggravated battery. While sufficient proof was presented to support all four charges of murder, defendant could only be convicted of one count. (People v. Mack (1984), 105 Ill. 2d 103, 136-37, 473 N.E.2d 880, 898.) The intentional murder charge constituted the most serious offense and defendant’s murder conviction and sentence must be deemed based on that count. People v. Johnson (1992), 149 Ill. 2d 118, 157, 594 N.E.2d 253, 272; Mack, 105 Ill. 2d at 137, 473 N.E.2d at 898.

People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, held that (1) where several offenses are based on a single act, only the conviction for the most serious offense is permitted; (2) where several offenses are based on related multiple acts, only the conviction for the most serious offense is permitted, if some of the offenses are lesser included offenses; and (3) where several offenses are based on related multiple acts, but none are lesser included offenses, then multiple convictions and concurrent sentences are permitted. This case involved two offenses, aggravated battery and murder, which were based on related multiple acts. Under King, the conviction for aggravated battery would be prohibited if it was a lesser included offense of murder.

Included offense means an offense which is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that required to establish the commission of the offense charged. (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a).) The information charged that defendant “without lawful justification and with intent to kill *** stabbed [John F. Miletta] with a knife.” The aggravated battery charge alleged that defendant “without legal justification intentionally caused great bodily harm to [John F. Miletta], in that he stabbed [John F. Miletta] with a knife.” As charged here, aggravated battery is a lesser included offense of murder. (People v. Lyons (1974), 26 Ill. App. 3d 193, 198, 324 N.E.2d 677, 680-81.) Accordingly, we vacate the conviction and sentence for aggravated battery.

Next, defendant argues that defense counsel’s failure to present mitigating evidence at sentencing constituted ineffective assistance of counsel. At sentencing, defense counsel did not offer evidence in mitigation and the trial court subsequently imposed a sentence of 95 years' imprisonment. Defendant contends the presentence investigation report suggested important information regarding defendant’s family. According to the presentence report, defendant stated he was “very close to his mother,” but that “he grew up afraid of his father, due to physical abuse inflicted upon him by his father.” Defendant maintains that the two compelling sources of potential mitigating evidence defense counsel should have investigated were that defendant was abused as a child and that defendant retained a close relationship with his mother and his siblings.

Sentencing is a critical stage in the criminal proceeding at which defendant is entitled to effective assistance of counsel. (People v. Reyes (1981), 102 Ill. App. 3d 820, 837, 429 N.E.2d 1277, 1291.) To establish a sixth amendment violation of the right to effective assistance of counsel, defense counsel’s actions must “[fall] below an objective standard of reasonableness.” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Here, defendant must show (1) his counsel’s performance at the sentencing hearing fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance so prejudiced the defense as to deny the defendant a fair sentencing hearing. (People v. Perez (1992), 148 Ill. 2d 168, 186, 592 N.E.2d 984, 992-93, citing People v. Franklin (1990), 135 Ill. 2d 78, 116-17, 552 N.E.2d 743, 761.) To establish the deficiency of counsel’s performance, defendant must overcome the strong presumption that his counsel’s representation fell within the range of reasonable professional assistance. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Defendant is only entitled to competent representation and not perfect or successful representation. (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548, 521 N.E.2d 900, 904.) Failure to present mitigating evidence at sentencing does not in itself constitute ineffective assistance of counsel. (Perez, 148 Ill. 2d at 186, 592 N.E.2d at 993; People v. Steidl (1991), 142 Ill. 2d 204, 248, 568 N.E.2d 837, 856, cert. denied (1991), 502 U.S. 853, 116 L. Ed. 2d 125, 112 S. Ct. 161.) On review, this court should defer to the trial counsel’s decision unless there is proof that he failed to present mitigating evidence due to his failure to properly investigate and prepare the defense. (Steidl, 142 Ill. 2d at 249, 568 N.E.2d at 856.) “Mitigating evidence can be double-edged, and trial counsel may feel that the risks in presenting potentially mitigating evidence are too high.” Steidl, 142 Ill. 2d at 249, 568 N.E.2d at 856.

Here, there is nothing in the record indicating trial counsel failed to properly investigate potential mitigating evidence. The situation is not comparable to Perez, cited by defendant, where a post-conviction evidentiary hearing was held regarding defense counsel’s performance and the existence of potential mitigating evidence. (See People v. Williams (1991), 147 Ill. 2d 173, 258, 588 N.E.2d 983, 1018.) Given the record in this case, we can only presume defense counsel made a strategic choice not to present any evidence in mitigation. (Steidl, 142 Ill. 2d at 249, 568 N.E.2d at 856.) At sentencing, the trial court noted several aggravating factors, including that the victim was handicapped, the victim was over the age of 60, and the murder was particularly brutal. Given the overwhelming aggravating evidence, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances. (People v. Eddmonds (1991), 143 Ill. 2d 501, 535, 578 N.E.2d 952, 967.) Accordingly, even if counsel’s performance was somehow deficient, there was no indication defendant would have received a different punishment had defense counsel presented mitigating evidence.

Accordingly, defendant’s conviction and sentence for murder is affirmed, and the conviction and sentence for aggravated battery is vacated.

Affirmed in part; vacated in part.

STEIGMANN, P.J., and GREEN, J., concur.