author: JUSTICE McCUSKEY

text:
    FOREST PRESERVE DISTRICT OF WILL COUNTY, Plaintiff-Appellant, v. MARQUETTE NATIONAL BANK, as Trustee, et al., Defendants-Appellants.
    Third District
    No. 3—90—0186
    Opinion filed February 14, 1991.
    Rehearing denied March 19, 1991.

      Kroesch & Kavanagh Law Office, Ltd., of Joliet (Joseph H. Singer, of counsel), for appellant.
    Edward Petka, of Plainfield, for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Forest Preserve District of Will County, Illinois (hereinafter District), appeals the trial court’s order dismissing its condemnation action. We affirm.

In 1978, the District filed a similar, if not identical, action to condemn the subject property. The circuit court of Will County dismissed the action with prejudice pursuant to stipulation by the parties.

On October 25, 1989, the District filed the present action to condemn the subject property. Defendants, Marquette National Bank, as trustee, Chicago Title & Trust Company, as trustee, and unknown owners (hereinafter defendants), filed a traverse and motion to dismiss based on the following defenses: res judicata; lack of good faith in attempting to agree to compensation; lack of necessity; and abuse of governmental discretion.

The trial court conducted a two-day evidentiary hearing on defendants’ traverse and motion to dismiss. At the hearing, the District called as its only witness its assistant director, Michael Pasteris, the District’s principal negotiator for the subject property. He indicated that the subject property was not in excess of the District’s needs and the condemnation action was promulgated by the District’s board. In 1977, the District obtained a comprehensive appraisal of the subject property in which the appraiser opined the property was worth $4,000 per acre or $900,000 for the entire tract (approximately 234 acres). In 1978, the District offered defendants $3,500 per acre for the subject property. The negotiations terminated in 1979 when the District dismissed its condemnation action with prejudice.

No further transactions occurred concerning the subject property and the District until late 1987, when the defendants contacted Pasteris about the donation of a small portion of the subject property to the District. Over the next five months, he met and negotiated with defendants after the District offered to purchase the entire subject property or a portion thereof. Defendants were interested in subdividing the property and had already taken steps to effect same. Pasteris was aware at this time that the subject property was being rezoned from agricultural to residential use. On May 5, 1988, the District’s board advised the defendants it was no longer interested in acquiring the subject property. Thereafter, the property was rezoned to residential use, a final plat approval for subdividing was requested, and lots were offered for sale.

On May 20, 1989, the District again became interested in acquiring the subject property. Pasteris was instructed by the District to obtain a quick appraisal since time was of the essence. The District employed an appraiser; however, Pasteris admittedly failed to advise him the property had been rezoned and the subdivisions were about to be developed and proposals for purchase were pending.

The District made an initial offer of $760,000 for the subject property and, upon refusal, increased the same to $800,000. This offer was not acceptable to the defendants. In order to buy more time, the District objected to the Will County board’s final plat approval.

The District approved the condemnation action the same day the county board voted for approval of the final plat. The District urged the county board to table its approval until the conclusion of the court proceedings since, without final plat approval, the subject property could not be developed. In the meantime, it was revealed the District offered an owner of adjacent property $78,000 for 10 acres of the land contiguous to the subject property. The county board then delayed its vote on approving the final plat.

At the evidentiary hearing, the defendants called two witnesses, Russ Demaray, an owner of the subject property, and Edward Masters, the District’s attorney at the time of the earlier condemnation action, and now a Will County circuit judge. Masters stated that he prepared the stipulation and dismissal order in the original case at the District’s request. The District abandoned its interest in the subject property because of the cost of unrelated projects. Masters was given instructions from the District to dismiss the condemnation action so it could never again be the object of a condemnation claim. Masters advised the District of the consequences of a dismissal with prejudice, i.e., that it could not pursue the property by condemnation again, but it persisted with its request. Masters then had the dismissal with prejudice order entered by the trial court in the original case.

Defendants next called Russ Demaray, an owner of the subject property. He had taken steps to develop his property, which involved a considerable outlay of money. He continued with the engineering and development of the property simultaneous to negotiating with the District about a purchase of all or part of the subject property. Based on a letter received by Demaray in May 1988 confirming the District’s lack of interest in the property, he petitioned the county board, of which a committee approved rezoning and final plat. Defendants, including Demaray, expended approximately $200,000 developing this property during the following year upon learning the District was no longer interested in acquiring the subject property.

In May of 1989, the defendants received a letter from the District indicating its renewed interest in acquiring the property. The defendants already received development approval and the only remaining item necessary to commence full development was a majority vote from the county board approving the plat. The District then obtained a delay from the county board and voted to initiate condemnation proceedings.

Demaray stated that individual lots within the subject property were selling for $45,000 per half-acre and a small lot was even purchased for $38,000. Furthermore, a person built a home on the lot within the subject property valued at $180,0000, exclusive of the value of the lot.

The trial court allowed defendants’ motion to dismiss and traverse, finding undue hardship and manifest injustice to the defendants.

The District raises several issues on appeal: The trial court erred in granting defendants’ traverse and motion to dismiss; that the District made a bona fide attempt to agree on compensation prior to fling suit, res judicata is inapplicable to the present action and therefore should not bar this action; and that the trial court’s decision was against the manifest weight of the evidence.

Was the trial court’s order granting defendants’ traverse and motion to dismiss proper? We believe it was.

The standard of review applicable to eminent domain proceedings is whether the trial court abused its discretion, acted arbitrarily, exceeded the bound of reason, and ignored the applicable law. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) It was evident from the record that the trial court did not abuse its discretion by dismissing the District’s condemnation action. The District vacillated between purchasing and involuntarily acquiring the subject property for over 10 years; it offered ridiculously low offers as compensation for same; and it knowingly and voluntarily prohibited itself from further pursuing a condemnation action for the subject property by dismissing the earlier condemnation action “with prejudice.” In addition, the District did not demonstrate that the acquisition of the subject property was a necessity. The trial court correctly ruled pursuant to applicable law and facts that the District’s action caused undue hardship and manifest injustice on the defendants. At this point, defendants were entitled to the use and enjoyment of the property without unreasonable interference from the District.

Was the trial court’s finding that the District acted unreasonably and in bad faith and did not make a bona fide attempt to agree with defendants to a fair compensation against the manifest weight of the evidence? No.

The trial court decision should not be disturbed on review unless it is against the manifest weight of the evidence. (Trustees of Schools of Township No. 37 v. First National Bank (1971), 49 Ill. 2d 408, 274 N.E.2d 56.) In other words, an opposite conclusion must be reached. The trial court’s finding was consistent with the facts and evidence presented. According to Department of Transportation v. Walker (1980), 80 Ill. App. 3d 1039, 400 N.E.2d 956, an attempt at agreement as to compensation must be both bona fide and made in good faith by the acquiring authority before condemnation proceedings commence. The record supports the finding the District acted unreasonably and in bad faith and failed to make a bona fide attempt to agree with defendants to a just compensation. The last appraisal admittedly was a “windshield” appraisal compared to the comprehensive appraisal in 1977, in which the earlier- appraiser estimated the value of the property at $4,000 per acre. The current appraiser was unaware the property had been rezoned and the final plat approval was imminent. The offer made by the District in 1989 was actually less than the offer submitted in 1978. In the meantime, the defendants had the property rezoned, the final plat proposal was about to be approved, offers were pending, substantial capital was invested, parcels had been tentatively sold, and the District purchased contiguous property for an amount over twice the amount per acre offered for the subject property. Lastly, with local governmental approval ready to issue, the District attempted to and obtained multiple delays of county board action, further delaying the defendants from developing the subject property.

It is evident that immediately prior to the submission of the present offer, the District overlooked important considerations, e.g., the timeliness of the comprehensive appraisal, the legal consequences of the changes made vis-a-vis the subject property, i.e., rezoning and final plat approval, and the further capital undertaking by the defendants, which all independently and collectively justify and support the trial judge’s finding.

Finally, does the former judgment of dismissal entered in 1979 bar this action? Yes.

It is undisputed that the earlier action was dismissed with prejudice by stipulation of the parties. The District was aware of the consequences of such dismissal; however, the testimony of Edward Masters was that the District persisted in a dismissal with prejudice. Stipulations are considered and enforced by courts unless there is a showing that the stipulation is pursuant to fraud or contrary to public policy. (Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1973), 15 Ill. App. 3d 269, 304 N.E.2d 57.) The doctrine of res judicata applies to eminent domain actions as long as the requirements of res judicata are satisfied: identity of parties, subject matter and cause of action. (La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 337 N.E.2d 19.) The circumstances of the previous dismissal lead to a clear understanding and conclusion that res judicata applies to this situation and bars the present action accordingly.

Based upon the aforementioned reasons, the circuit court of Will County is hereby affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES C. GOODWIN, Defendant-Appellant.
    Third District
    No. 3—90—0309
    Opinion filed February 19, 1991.
    Modified opinion filed February 28, 1991.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, James C. Goodwin, entered a partially negotiated plea of guilty to a charge of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)). In return for the plea, the State agreed that it would not recommend a prison term of more than 20 years. The trial court subsequently sentenced the defendant to serve 20 years in prison. The defendant appeals.

The factual basis for the defendant’s guilty plea established that nine-year-old W.W. would testify that he visited the defendant at his apartment numerous times in the fall of 1989. During some of those visits, the defendant offered him money and candy in exchange for oral sex. In all, the defendant had the victim perform fellatio on him approximately 20 times. The defendant admitted to the police that he had had the victim perform approximately 10 acts of oral sex on him in exchange for money and gifts.

The presentence report showed that the 33-year-old defendant had no prior criminal history, except for two minor traffic offenses. The defendant had attended special education classes in both elementary and high school. After receiving a GED certificate in 1979, the defendant attended classes at a community college. A 1986 psychological evaluation indicated that his full-scale IQ of 77 placed him in the borderline mentally retarded range. The evaluation also indicated that the defendant had a very negative self-concept and was suffering from a depressed type of psychoneurosis and a personality disorder. The defendant’s employment history showed that he had recently held a job driving a cab and a job at a gas station. It also showed that since 1985, he had collected social security disability payments because of a back injury.

At the sentencing hearing, Officer John Malone testified that eight-year-old RF. told him that he and the defendant had had oral sex with one another about 20 times. In return for the sexual acts, the defendant gave R.F. gifts and candy.

Malone further testified that the defendant admitted that he had had oral sex with the victim. According to Malone, the defendant told him that his illicit sexual behavior began 10 months earlier when 15-year-old D.C. asked him if he had ever had oral sex. Thereafter, the defendant twice engaged in oral sex with D.C. D.C. eventually introduced the defendant to B.H., R.F., and J.F. The defendant had oral sex with R.F. more than 30 times and with six-year-old J.F. more than 20 times. He also had oral sex with nine-year-old B.H. The defendant gave the boys money, candy, and toys in exchange for the sex.

The defendant testified that he was remorseful and that it would not happen again. He also stated that he had been planning to sign himself into a mental health treatment program on the morning of his arrest.

In sentencing the defendant to 20 years in prison, the trial court expressly noted that it was considering the information in the presentence report, the evidence presented at the sentencing hearing, the arguments presented by counsel, the statements made by the defendant on his own behalf, and the applicable aggravating and mitigating factors. The court further noted that the sentence was necessary to deter others and that it was not unlikely that the defendant would again commit the same type of crime. The defendant later filed a motion to reconsider, which the court denied.

On appeal, the defendant contends that the trial court erred in sentencing him to serve 20 years in prison in view of his background and the nature of the offense.

We note that aggravated criminal sexual assault is punishable by a term of imprisonment ranging from 6 to 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aX3).) Further, sentencing is a matter of judicial discretion and, absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) When mitigating factors are before the court, it is presumed the court considered the mitigating circumstances, and there is no requirement that the trial judge recite and assign a value to each factor presented. People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.

In the instant case, the trial court specifically noted that it was considering the presentence report and the evidence presented. Nothing in the record indicates that the court failed to consider the mitigating evidence. Further, the court noted that the sentence was necessary to deter others and that it was not unlikely that the defendant’s behavior would reoccur. Moreover, we note that the record reveals that the defendant committed numerous acts of sexual molestation on several other children besides the victim in the instant case. We also note that the defendant received a sentence well within the permissible range for the offense. Accordingly, we find that trader the circumstances the court did not abuse its discretion when it sentenced him to serve 20 years’ imprisonment.

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

Affirmed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE McNAMARA

text:
    WHEELAN FUNERAL HOME, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mary C. Wiggins, Appellee).
    Third District
    No. 3—90—0369WC
    Opinion filed February 19, 1991.

      Linda E. Frischmeyer, of Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., of Rock Island, for appellant.
    Harrison H. Kavensky, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Mary C. Wiggins, filed an application for adjustment of claim with the Industrial Commission (Commission) to recover for the death of William B. Wiggins, her husband, who died of a heart attack and who had been employed by the respondent, Wheelan Funeral Home. An arbitrator awarded compensation, the Commission affirmed that decision, and the circuit court of Rock Island County confirmed the Commission’s decision. Respondent appeals, contending that the Commission’s finding that decedent’s death arose out of and in the course of employment is against the manifest weight of the evidence, and that certain hearsay evidence was improperly admitted into evidence and considered by the Commission.

The relevant facts are as follows. The deceased, age 54, was employed by respondent for over 20 years as a funeral director. The deceased’s job duties included picking up bodies and bringing them into the funeral home; lifting, embalming and applying cosmetics to the bodies; setting up and remaining on call for visitation; and going to the church and cemetery during funeral services. The deceased had consistently worked overtime in the months prior to his death, and had worked 27 hours of overtime in the pay period preceding his death.

The day before his death, the deceased worked at a visitation service until approximately 9:30 p.m. The deceased also remained on call that evening and had to pick up and embalm a body.

The deceased directed a funeral service on the morning of his death, October 18, 1984. At approximately 4 p.m., the deceased was sitting in the funeral home at a desk reading the newspaper when he made a gasping noise and dropped over at the desk. He was pronounced dead of a massive myocardial infarction shortly after arriving at the hospital.

According to petitioner’s testimony, she picked up her husband following the funeral service, and he tried to explain to her why he was so late. Petitioner testified, over objection, as to the conversations she had with the deceased and that the deceased told her that it was a “real long funeral” and “unusually large.” The deceased “had to carry the casket, and it was pouring down rain at the cemetery,” and “there was a larger family than usual, so he had to stand out in the rain longer, because he had to open the cars for the family.” Petitioner stated that “it was an unusual day” and that “normally they don’t have that number of people at the funeral.”

Petitioner further testified that her husband was “really wet,” and that “his raincoat, suit, shirt, undershirt, shoes and socks were soaked, all the way through.” Petitioner had the car running and the heater turned on because she knew “he would be so cold” and that “it was just a horrible day.” Petitioner then took him home to get some clean clothes because he had another funeral that afternoon. Petitioner gathered dry clothes for the deceased, including a fresh suit, underwear, shoes and socks. In a statement given shortly after her husband’s death, petitioner stated that the deceased was not under any undue stress and that his work schedule was normal. Petitioner also stated that the deceased did not complain to her about any chest pains when she picked him up after the funeral service.

Harold A. Temple, a co-worker at the funeral home, testified that the deceased directed a “large funeral service” on the morning of his death. Temple further testified, over objection, that the deceased stated that he had a problem with parking at the church because a group of local priests were having a meeting and had disregarded the parking signs. Therefore, when the funeral procession arrived, it was necessary to block in the priests’ cars. After the church service started, the deceased had to get the keys for the different family cars to move them so that the priests could get their cars out. Temple further testified that the deceased was “very upset,” and that he was “soaking wet.”

J. Allan Gahagan, another co-worker, testified that the deceased was “worked up” and appeared tired after returning from lunch at about 1:30 p.m. Gahagan testified without objection that the deceased related the events of the morning’s funeral, including his dismay over finding that a group of priests were already at the church and had parked their cars in the area where the funeral cars were normally parked, and that the deceased had to retrieve the keys and move the funeral cars so that the priests could leave. Gahagan further testified that the deceased told him that it was raining very hard during this time and that his clothes became soaked. The deceased went home and changed his clothes before returning to work the afternoon shift. As we have noted, none of Gahagan’s testimony was objected to at the hearing.

Petitioner’s friend, Bethel Vincent, took the fresh clothes out to the car where the deceased was waiting. Vincent testified, over objection, that when she took the dry clothes out to him, the deceased stated that he “had a long funeral, a long, hard funeral,” and that he was “wet and tired.”

The record indicates that the deceased was 5 feet 11 inches tall and weighed between 275 and 285 pounds. In 1981, Dr. William J. McCormick, the deceased’s treating cardiologist, diagnosed the deceased as having arteriosclerotic coronary artery disease with recent bouts of unstable angina, exogenous obesity, borderline diabetes mellitus, and anemia. In September 1982, the deceased had increased chest pain, and an electrocardiogram revealed evidence of additional myocardial infarction that had not been present on the earlier tracings. In January 1984, the deceased’s angina was again increasing, which resulted in coronary by-pass surgery in February 1984. The deceased returned to work on April 30, 1984. The last time Dr. McCormick examined the deceased was on September 25, 1984. Dr. McCormick stated that the deceased’s blood pressure was relatively well controlled, and that the deceased indicated that he was dieting, and had no specific complaints.

Dr. McCormick was presented with a hypothetical question regarding the deceased’s overall work activities following his surgery, including the events of the night before and the day of his death. Dr. McCormick opined that while the deceased had severe underlying cardiac problems, there was a reasonable likelihood that his work situation could have been a contributing factor to the acute occurrence which led to his death.

Dr. Richard Cooper also testified as an expert on behalf of petitioner. After reviewing the deceased’s medical records, Dr. Cooper opined that the events of that morning centering around his work at the funeral home remain a possible cause of the sudden death which occurred in the hours after he returned to the funeral home.

Dr. Frank J. Forlini testified as an expert on behalf of respondent. He opined that the time relationship between the stress and the death of the deceased was too long to establish a causal connection.

On March 15, 1988, the arbitrator found that based upon the facts and the testimony of Drs. McCormick and Cooper, the deceased’s work activities were at least a precipitating or contributing cause that led to his death. The arbitrator awarded petitioner the weekly sum of $287.79 to be paid until the sum of $250,000 has been paid out, or 20 years have passed, whichever is greater. The arbitrator also awarded funeral expenses in the amount of $1,750. On September 14, 1989, the Commission affirmed the arbitrator’s decision.

Initially, we note that whether an injury arises out of and in the course of employment is a question of fact. (Northern Illinois Gas Co. v. Industrial Comm’n (1986), 148 Ill. App. 3d 48, 498 N.E.2d 327.) It is the function of the Commission to determine the facts and draw reasonable inferences from competent evidence. (City of Chicago v. Industrial Comm’n (1970), 45 Ill. 2d 350, 259 N.E.2d 5.) Further, a reviewing court will not disturb the Commission’s findings unless they are contrary to the manifest weight of the evidence. Illinois Valley Irrigation, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 234, 362 N.E.2d 339.

Generally, even when an employee suffers from heart disease, if the heart attack which brings on disability or death is work related, the employee may recover workers’ compensation. (Associates Corp. of North America v. Industrial Comm’n (1988), 167 Ill. App. 3d 988, 522 N.E.2d 102.) It is well established that if there is work-related stress, either physical or emotional, that aggravates the disease so as to cause the heart attack, then there is an accidental injury or death arising out of and during the course of the employment. (Associates Corp. v. Industrial Comm’n, citing City of Des Plaines v. Industrial Comm’n (1983), 95 Ill. 2d 83, 88-89, 447 N.E.2d 307, 309.) Further, while the claimant must prove that some act of employment was a causative factor, the act need not be the sole, or even the principal, causative factor. (Northern Illinois Gas Co. v. Industrial Comm’n (1986), 148 Ill. App. 3d 48, 498 N.E.2d 327.) In addition, a preexisting heart condition does not preclude the Commission’s finding that the heart attack is compensable. Sears, Roebuck & Co. v. Industrial Comm’n (1980), 79 Ill. 2d 59, 402 N.E.2d 231.

While it is undisputed in this case that the deceased suffered from coronary disease, we find that sufficient evidence existed in the testimony of Drs. McCormick and Cooper to support the Commission’s conclusion that his death arose out of and during the course of employment. The deceased worked at a visitation service the day before his death, and during that night, he had to pick up and embalm a body. More particularly, the events occurring on the morning of his death, including working at the large funeral service, moving the funeral cars during that service, and the fact that the deceased’s clothing became wet and necessitated a complete change before he returned to work in the afternoon, indicate the existence of significant work-related stress.

Respondent contends that the doctors improperly relied upon the hearsay testimony, objected to at the hearing, of petitioner, Temple, and Vincent in formulating their conclusion that the deceased could have died as a result of the events occurring on the morning of his death. We find, however, that the testimony of Gahagan, to which there was no objection at the hearing, provides sufficient and undisputed details of those events. Accordingly, we need not reach the issue of whether improper hearsay was admitted, nor the merits of respondent’s other contention that petitioner’s testimony was admitted in violation of the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201).

We hold that the finding of the Commission that the deceased’s death arose out of and in the course of his employment thus entitling petitioner to an award is not contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Rock Island County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH and LEWIS, JJ., concur.


author: JUSTICE INGLIS

text:
    GIRARD G. O’MALLEY, Plaintiff-Appellant, v. ANITA M. McQUAIG, Defendant (Harry W. Kuhn, Inc., Defendant-Appellee).
    Second District
    No. 2—90—0445
    Opinion filed February 8, 1991.
    Bruce R. Fawell, of Fawell & Fawell, of Wheaton, for appellant.
    D. Kendall Griffith and Stephen R. Swofford, both of Hinshaw & Culbertson, and Kiesler & Berman, both of Chicago, Thomas A. Brabec and Robert G. Black, both of Hinshaw & Culbertson, of Lisle, Michael S. Cetina, of Connolly, Ekl & Williams, of Clarendon Hills, and James S. Jendryk, of Querrey & Harrow, Ltd., of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Girard G. O’Malley, appeals from an order of the circuit court granting summary judgment in favor of defendant, Harry W. Kuhn, Inc., on count III of plaintiff’s second amended complaint. Count III alleged that defendant violated “An Act to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois” (Ill. Rev. Stat. 1987, ch. 121, par. 314.1 et seq.), commonly referred to as the Road Construction Injuries Act (Act). On appeal, plaintiff contends that the trial court erred in finding the Act inapplicable to accidents occurring in areas where a two-way flow of traffic has been maintained through a road construction site. We affirm.

On June 4, 1987, at approximately 6 p.m. plaintiff was injured when his motorcycle collided with a vehicle driven by Anita M. McQuaig, a defendant named in this suit but not a party to the appeal. The accident occurred on Illinois Route 53 between Maple Avenue and Short Street in Lisle, Illinois. Route 53 runs north/south and intersects with Short Street and, to the south, with Maple Avenue. There is a Jewel grocery store located south of Short Street, at the northwest corner of Maple Avenue. This area was under construction at the time of the accident. Specifically, the two westernmost lanes of Route 53 were newly paved and were separated from and closed to regular Route 53 traffic through the use of barricades and by the fact that this portion of the road was lower than the two easternmost lanes; the drop-off between the two portions leveled off at the area of the Jewel entrance. The two easternmost lanes of Route 53 were open to regular traffic, which was confined to one northbound lane and one southbound lane. As southbound traffic of Route 53 approached the Jewel entrance, the road gradually curved to the west and straightened out south of the entrance, expanding to four lanes of traffic: one left-turn lane, one right-turn lane and two southbound lanes proceeding straight.

The newly paved west portion of Route 53 ran from the Jewel entrance one-half mile north to Short Street and consisted of two lanes separated by a dotted line. A number of homes were located adjacent to this portion of the roadway The Short Street access to this road was blocked by a five-foot-high barricade. The southern portion, near the Jewel entrance, was partially blocked by barricades; however, at least one lane of the road was open, providing the only access to the adjacent homes.

At the time of the accident, there was heavy rush-hour traffic on the portion of Route 53 under construction. Plaintiff was headed southbound on the newly paved section immediately prior to the Jewel entrance and planned to continue south past the area where Route 53 widened to four lanes.

At the same time, Anita McQuaig was heading southbound on the eastern portion of Route 53, her destination being the Jewel store. The traffic pattern was such that McQuaig and the other southbound cars were gradually channeled southwest at that point. As McQuaig turned right, attempting to enter the store parking lot to the west, the right front door of her vehicle was struck by plaintiff’s motorcycle. As a result of the impact, plaintiff was thrown 30 feet and suffered numerous injuries.

In counts I and II of his three-count second amended complaint, plaintiff alleged negligence by Anita McQuaig and Harry W. Kuhn, Inc. (Kuhn), the general contractor for the construction on Route 53. In count III, which is the subject of this appeal, plaintiff alleged that Kuhn violated the Road Construction Injuries Act. Specifically, plaintiff alleged that Kuhn violated sections 1 and 4 of the Act and was therefore liable under section 6 of the Act. Defendant Kuhn filed a motion for summary judgment as to count III, arguing that because Route 53 had two-way movement of traffic at the construction site, the Act is inapplicable. The trial court agreed and granted defendant’s motion, finding no just reason to delay enforcement or appeal of the order. Plaintiff timely appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

We note that, generally, when no material facts are in dispute, questions of law are properly decided on a motion for summary judgment. (Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 367.) Here, the undisputed facts reveal that the accident at issue occurred in a construction zone where two-way traffic was maintained. Plaintiff contends that the Road Construction Injuries Act applies in such a situation and proposes that we reject or distinguish the pertinent case law holding to the contrary.

It is well settled that the Act’s purpose is to protect both workmen and the general public from injury or death during the construction or repair of bridges and highways within Illinois. (Andrews v. Marshall’s of Oak Lawn, Illinois, Inc. (1988), 173 Ill. App. 3d 162, 163.) Section 1 of the Act states:

“All construction work upon bridges or highways within the State of Illinois shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical, and when not safe and practical, or when any portion of the highway is obstructed, one-way traffic shall be maintained, unless the authorized agency in charge of said construction directs the road be closed to all traffic.” (Ill. Rev. Stat. 1987, ch. 121, par. 314.1.)

When one-way traffic is utilized, section 2 requires the contractor to provide flagmen or traffic signals and to provide signs or signals warning approaching persons of the existence of the one-way traffic. (Ill. Rev. Stat. 1987, ch. 121, par. 314.2.) Section 3 requires that, when one-way traffic is utilized, drivers obey warning signs and stop their vehicles if signaled to do so by a flagman or a traffic control signal. (Ill. Rev. Stat. 1987, ch. 121, par. 314.3.) Section 4 requires proper signs or barricades when highways or bridges are closed to all traffic; specifically, that section states:

“Any portion of highway or bridge which is closed to all traffic shall be marked at each place where vehicles have accessible approach to such portion of highway or bridge, and at a sufficient distance from the closed portion of such highway or bridge shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades as set forth in the Manual of Uniform Traffic Control Devices for Streets and Highways published by the Department of Transportation so as to give warning to approaching motorists that such portion of bridge or highway is closed and unsafe for travel. (Ill. Rev. Stat. 1987, ch. 121, par. 314.4.)

Those who knowingly and willfully violate the Act, such as contractors and drivers of motor vehicles, are liable for such violations under section 6 of the Act. Ill. Rev. Stat. 1987, ch. 121, par. 314.6.

We now consider plaintiff’s contention that the Act is applicable to situations where two-way traffic has been maintained through a highway construction site. This contention was first rejected in Dodson v. Shaw (1983), 113 Ill. App. 3d 1063. In Dodson, the defendant contractor had been hired by the State to improve a bridge located on the eastbound lanes of an interstate highway. During the construction, traffic was directed to the north lane of the eastbound lanes by use of temporary traffic control devices, and a solid white traffic control line was painted in the south lane. Approximately 100 feet west of the bridge, the temporary line merged with the original center line.

Before construction on the south lane was completed, a tractor-trailer traveling through the north lane collided with a guardrail, which was designed to protect errant vehicles from striking the concrete bridge abutment. The collision tore out a large segment of the guardrail, leaving the bridge abutment unprotected.

After construction on the south lane was completed, the defendant initially decided not to attempt to remove the white traffic control line because removal had proved difficult in the past and the defendant believed that the line would be worn away by traffic. When it did not wear away as anticipated, defendant attempted to cover the line with a black liquid, which proved unsuccessful as well. The following month, in the early evening, the plaintiff was a passenger in an automobile driven by his friend, heading toward the bridge. As the two approached the bridge, the plaintiff saw the white traffic control line and mentioned it to his friend, who cut sharply to the left to conform with the traffic control line. As a result, the car slid and struck the unprotected abutment.

Following a jury trial, the plaintiff appealed the jury’s verdict in favor of the defendant on the Road Construction Injuries Act count. On appeal, the plaintiff argued that the jury’s verdict was against the manifest weight of the evidence. However, rather than ruling on the manifest weight issue, the Dodson court based its decision on the applicability of the Act. The court acknowledged that, while the Act as a safety statute is to be liberally construed, the plain language of the Act cannot be ignored. The Dodson court held that the plain language of the Act is “concerned with the unusually dangerous situation where a highway is closed altogether [citation], or there is only one lane of traffic for use by vehicles traveling in opposite directions [citation].” (Dodson, 113 Ill. App. 3d at 1067.) The court concluded that because two-way traffic was maintained at all times, the statute was inapplicable to the plaintiff’s cause of action. Dodson, 113 Ill. App. 3d at 1067.

Thereafter, the court in Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, relying on Dodson, affirmed summary judgment in favor of the defendant on a count alleging a violation of the Act. In Filipetto, the plaintiff, a minor, was injured when his bicycle collided with a trailer connected to an air compressor which was parked and left unattended in the curb of a four-lane highway. The court concluded that because the road was not closed and all lanes of traffic were in use, the Act was inapplicable. Filipetto, 135 Ill. App. 3d at 786.

Plaintiff argues that Dodson and Filipetto are distinguishable from the case at bar because in those eases no portion of the highway was closed or under construction. Plaintiff maintains that pursuant to section 4 of the Act, he was traveling on a “closed” road and, thus, the Act applies even though two-way traffic was maintained. Similar arguments were advanced in Andrews v. Marshall’s of Oak Lawn, Illinois, Inc. (1988), 173 Ill. App. 3d 162, and Macrito v. Zaverdas (1989), 186 Ill. App. 3d 562. In each case, the appellate court affirmed the interpretation of the scope of the Act as contained in Dodson and Filipetto, specifically addressing requirements under section 4. Andrews, 173 Ill. App. 3d at 163-66; Macrito, 186 Ill. App. 3d at 567-72.

In Andrews, the plaintiff was operating an automobile in a northbound direction on a six-lane north/south highway, which normally had three lanes of traffic running in each direction. At the time, excavation work was being performed by the defendant in the easternmost northbound lane. The excavation consisted of an approximately eight-by-eight-foot hole that had been filled in. Barricades had been placed over the excavation area. Due to this work, the easternmost lane of the northbound highway was partially closed; however, the remaining two northbound lanes were totally open to traffic, as were the three southbound lanes. The plaintiff was injured when he drove his car into the barricades covering the excavation work and lost control of his car and crashed.

The plaintiff appealed from the trial court’s grant of summary judgment in the defendant’s favor as to count I of the amended complaint, which alleged that defendant failed to comply with section 4 of the Act. The appellate court held that the Act was not applicable since two-way traffic on the highway was maintained. (Andrews, 173 Ill. App. 3d at 166.) The court explained that because the Act creates a strict liability action for which contributory negligence is not a defense, the Act should be limited to those unusually dangerous situations which occur when a highway is closed altogether or there is only one lane of traffic available for use by vehicles traveling in opposite directions. (Andrews, 173 Ill. App. 3d at 166.) The court stated that to hold otherwise would result in the Act being applied to almost any accident which could conceivably occur while construction work of any sort was being performed on the highways and bridges of this State. Andrews, 173 Ill. App. 3d at 166, citing Dodson, 113 Ill. App. 3d at 1068.

A similar result was reached by the appellate court in Macrito v. Zaverdas. In Macrito, a laborer was injured while working on a highway construction project. The highway on which the laborer was injured consisted of six lanes: three lanes for northbound traffic and three lanes for southbound traffic. Due to the construction, travel on the easternmost southbound lane was precluded by a series of tapering barricades forcing traffic to merge west into the center southbound lane. Thus, the center southbound lane and the westernmost southbound lane were open for traffic. The laborer was injured when he stepped into the center southbound lane and into the path of an automobile, which struck him. He subsequently died from the injuries he sustained.

Suit was brought under section 4 of the Act against the consulting engineers on the construction project and against the subcontractor engaged to provide traffic-control devices, among other defendants. The trial court granted defendants’ motion for summary judgment, and the appellate court affirmed. The appellate court held that the Act did not apply, and the “accessible approach” language of section 4 was more “befitting of situations such as where traffic must detour from the regular course of travel due to complete closing off of a thoroughfare [citation], or, possibly, where a highway access ramp permits approach to a length of highway completely closed off for construction.” Macrito, 186 Ill. App. 3d at 568.

It is clear from the above cases that section 4 of the Act does not apply to the case at bar since the portion of the highway from which plaintiff was traveling was not closed to all traffic, as clearly required by the statute. (Ill. Rev. Stat. 1987, ch. 121, par. 314.4.) Plaintiff contends that the road was “closed” for purposes of the statute, arguing that in any situation where a road is closed it will nevertheless accommodate local traffic by necessity. We disagree. (See Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 222 (traffic required to detour from the regular course of traffic due to a complete closing off of a thoroughfare).) We further reject plaintiff’s argument that the “accessible approach” language in section 4 indicates that the statute was intended to apply to situations where local traffic is permitted to travel on a “closed” road. Section 4 uses the words “accessible approach” rather than simply “access.” Clearly, the intent of the statute was to provide advance warning to motorists approaching the road that the road is in fact closed and unsafe for travel. There is no reference in the statute about warning motorists that a closed road is accessible.

Plaintiff’s citation to Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, is similarly unpersuasive. In Vegich, the plaintiff was a passenger in a car that smashed into a flatbed trailer which had been parked on a section of highway closed for repairs. The subject highway was being converted to a four-lane, divided highway. The northbound lanes had already been completed and were open to traffic, but the southbound lanes were still under construction and closed to traffic. Both the plaintiff and the driver of the car had been drinking for several hours immediately before the accident, and the issue before the supreme court was whether the legislature had intended that the defense of contributory negligence be permissible in an action brought under the Road Construction Injuries Act. (Vegich, 84 Ill. 2d at 463.) The court held that the Act provides a strict liability action for which contributory negligence is no defense. Vegich, 84 Ill. 2d at 469.

Relying on Justice Pincham’s dissent in Macrito, plaintiff argues that because the supreme court in Vegich did not question the plaintiff’s right to bring his complaint under the Act, it thereby implicitly approved his right to do so. (Macrito, 186 Ill. App. 3d at 582 (Pinchara, J., dissenting).) However, it is important to note that in Vegich, both southbound lanes were completely closed to traffic. (Vegich, 84 Ill. 2d at 464.) Thus, the road conditions present in that case render the supreme court’s decision consistent with the later case law interpreting the coverage of the Act. Eggers v. H.W. Lochner, Inc. (1987), 157 Ill. App. 3d 822, 827.

Finally, we reject plaintiff’s contention that the prior case law, specifically, Dodson and Filipetto, incorrectly limited the application of the Act. Plaintiff proposes that common sense dictates that the Act applies to road construction and repair areas where two-way traffic is maintained.

We find, as did the courts in the prior cases, that the clear language of the Act indicates that it was intended to apply only in situations where one-way traffic is utilized or where a road is closed altogether. The sections of the Act specifically address these two situations; no mention is made of the standards applicable when two-way traffic is maintained. Were two-way traffic to be included, the Act would impose strict liability in tort to any accident occasioned where construction was being performed on a highway or bridge in Illinois. (Macrito, 186 Ill. App. 3d at 571; Andrews, 173 Ill. App. 3d at 166.) The appellate court explained in Macrito:

“We are mindful the Act’s broadly stated title is ‘to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois.’ [Citation.] We also realize the hazardous nature of highway construction is not lessened where two-way traffic is maintained around that activity. However, we must endeavor to give meaning to the Act by interpreting language contained within its sections, not merely its title. And we decline invitation to rewrite those provisions to encompass two-way traffic situations in usurpation of legislative prerogative to include such language.” Macrito, 186 Ill. App. 3d at 571-72.

We agree with the Macrito court and find the Act inapplicable to plaintiff’s cause. Therefore, the trial court’s granting of defendant’s motion for summary judgment on count III of plaintiff’s second amended complaint was proper.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and NICKELS, JJ., concur.


author: JUSTICE GEIGER PRESIDING JUSTICE REINHARD,

text:
      In re ESTATE OF WILLIAM W. SCOTT, JR., a Disabled Person (Sundstrand-Sauer, Petitioner-Appellee, v. Estate of William W. Scott, Jr., Respondent-Appellant).
    Second District
    No. 2—90—0322
    Opinion filed February 8, 1991.
    REINHARD, P.J., specially concurring.
    Lawrence J. Ferolie and Frank A. Perrecone, both of Lawrence J. Ferolie & Associates, Ltd., of Rockford, for appellant.

      Thomas H. Boswell, of Hinshaw & Culbertson, of Rockford, and D. Kendall Griffith, Stephen R. Swofford, and Bruce L. Carmen, all of Hinshaw & Culbertson, of Chicago, for appellee.
    George M. Elsener, of George M. Elsener & Assosciates, of Chicago, for amicus curiae.

    John G. Garrity, P.C., of Beckmire, Garrity & Yogt, of Freeport, guardian ad litem.

   JUSTICE GEIGER

delivered the opinion of the court:

The respondent estate (the estate) of William W. Scott, Jr. (Billy), appeals from the trial court’s order awarding the claimant Sundstrand-Sauer (Sundstrand or the company) judgment on the subrogation provision of its Health and Disability Group Insurance Plan (the Plan). We affirm.

In March 1988, Billy, who was age 18, was seriously injured while riding as a passenger on a motorcycle. He was later declared a disabled adult and his estate brought suit based upon the accident. Sundstrand, Billy’s father’s employer, paid approximately $200,000 for Billy’s injuries pursuant to the terms of the Sundstrand health plan. The Plan includes a subrogation clause which states:

“Subrogation, Assignment and Lien. On payments of benefits hereunder as a result of Injury or Illness, the Fund shall be subrogated, to the extent of benefits made or to be made under This Plan, to all the rights of a Covered Individual against any person, firm or organization arising out of such Injury or Illness and the Covered Individual shall execute and deliver instruments and documents and do whatever is necessary to secure such rights to the Fund. The Covered Individual shall do nothing to prejudice such rights. Each Covered Employee hereby assigns to the Trustees of the Fund out of any amounts received or to be received by the Covered Individual as a result of Injury or Illness for which the Covered Individual has a claim against any person, firm or organization to the extent of benefits made or to be made under This Plan. In addition, the Covered Individual hereby grants a lien to the Trustees of the Fund out of any amounts received or to be received by the Covered Individual as a result of Injury or Illness for which the Covered Individual has a claim against any person, firm or organization to the extent of benefits made or to be made under This Plan.”

In January 1989, the court signed an order approving the estate’s settlement with the motorist who had struck Billy’s motorcycle. That settlement was for the motorist’s $121,000 insurance policy limit. After the payment of court-approved fees, there remained approximately $82,000 in estate assets. In February 1990, after a hearing and receipt of written arguments regarding Sundstrand’s claim for subrogation, the court entered its order finding that under the Plan’s subrogation clause, the company was entitled to the remainder of the estate’s assets from the settlement. The estate brought this appeal.

The estate’s first argument on appeal is that either Sundstrand’s claim should be denied or it should be allowed only on a pro rata basis because Billy did not receive full compensation for his injuries. It notes that the trial court observed that Billy’s damages could be worth $3 to $5 million and that the settlement did not make him whole. The argument’s focus is that the subrogation award, by depleting the estate's assets, is inequitable.

Sundstrand responds to this argument by asserting that the estate, through Billy, is an intended third-party beneficiary of the Plan and that Sundstrand’s clear contractual rights should not be overridden by inapplicable equitable analysis.

Rights to subrogation originated in equity, and they may now arise in common law, or through statute or contract. (See Dworak v. Tempel (1959), 17 Ill. 2d 181, 190-92.) Medical subrogation clauses in insurance contracts are generally enforceable; furthermore, if such a clause is enforceable, it is not common-law concepts of subrogation but the contract terms that control. See Spirek v. State Farm Mutual Automobile Insurance Co. (1978), 65 Ill. App. 3d 440, 449.

In this case, it is clear that, in the fashion that Billy was named as a covered dependant under his father’s health plan with Sundstrand, the parties manifested their intent to confer third-party beneficiary status upon him so that he was a direct contract beneficiary. (See Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 54-55.) It is also clear that based on that coverage, Sundstrand extended some $200,000 in payments on account of Billy’s accident and the resulting disability. The insurance contract that obligated Sundstrand to cover Billy’s expenses also included a clear right to subrogation, It provided that the company’s insurance fund would be subrogated, to the extent of benefits extended, to all amounts received by or due a covered individual because of an injury creating a claim under the Plan. Billy’s insurance settlement following the injury was for a lesser amount than the benefits already extended by Sundstrand on account of that same injury.

We find that the trial court’s careful analysis was correct and that the company was entitled to the full subrogation ordered. This is not a case based in equity, but rather on contractual terms. Furthermore, courts have recognized the equity of subrogating insurers to their insureds’ rights against tort-feasors who had caused an insurance claim. (See Dworak v. Tempel (1959), 17 Ill. 2d 181, 190-92.) Further, we note that it is not determinative that the subrogation order depletes the estate’s assets. To the extent, if any, that the estate’s settlement did not accurately compensate the estate, Sundstrand is not at fault. We note, also, that, to the extent that the estate’s resources are less than the claim payments made by Sundstrand, the company is also disadvantaged by the estate’s small settlement.

We are not persuaded by the estate’s foreign authority (see Rimes v. State Farm Mutual Automobile Insurance Co. (1982), 106 Wis. 2d 263, 275, 316 N.W.2d 348, 353), where the court held that an insurer may not be subrogated unless the insured has been made whole for his loss. In Illinois, also, the doctrine of subrogation will be applied or not applied, according to the dictates of equity, good conscience, and public policy considerations. (Reich v. Tharp (1987), 167 Ill. App. 3d 496, 501.) However, its use is encouraged in appropriate circumstances. (See In re Estate of Schmidt (1979), 79 Ill. App. 3d 456, 458.) We are not aware that Illinois has ever made a statement analogous to that of the Rimes court.

As Sundstrand points out, this case is distinct from the wrongful death cases upon which the estate partially relies. There, courts noted a public policy against subrogation in the case of wrongful death. (See In re Estate of Schmidt (1979), 79 Ill. App. 3d 456, 458; National Bank v. Podgorski (1978), 57 Ill. App. 3d 265.) In Hardware Dealers Mutual Fire Insurance Co. v. Ross (1970), 129 Ill. App. 2d 217, also a wrongful death case, the court found no full recovery by the injured insured and no right to subrogation by the plaintiff insurer. The absence of full recovery by the injured insured, however, was not determinative in Ross. There, importantly, the insurer had sought to avoid liability for the insured’s claim, and only after the insured had received a third-party insurance settlement had it stipulated to its coverage.

Here, where Sundstrand’s insurance contract with Billy through his father included an unambiguous applicable subrogation clause, and where Sundstrand apparently has made all payments which it was obligated to make under that contract, we find no reason to deny subrogation. Furthermore, we find no Illinois authority to support the estate’s alternative argument that Sundstrand should receive only a pro rata share of settlement proceeds.

The estate also argues that Sundstrand’s subrogation interest amounts to an assignment of a personal tort, which is void as against public policy. According to the estate, the enforcement of the subrogation to Sundstrand, when Billy had not been made whole by the settlement, would operate as an assignment of all Billy’s rights. As a consequence, Billy would not be compensated for his injuries, disability, pain and suffering, and lost earnings.

We agree with Sundstrand that the estate has improperly characterized the subrogation claim as an “assignment.” Sundstrand neither sought nor received Billy’s rights to make full claims for his injury. Rather, it merely sought and was awarded the right to recoup payments advanced to the estate which had been recovered from a third-party source. (See Remsen v. Midway Liquors, Inc. (1961), 30 Ill. App. 2d 132, 144.) Contrary to the estate’s assertion, the language of the Plan’s subrogation provision does not call for the full assignment of the insured’s rights but, rather, mere reimbursement of amounts forwarded by the Plan.

The estate’s concluding argument is that allowance of Sundstrand’s claim would violate article I, section 12, of the Illinois Constitution (Ill. Const. 1970, art. I, §12), or be a denial of due process under the United States Constitution. Article I, section 12, provides that “[ejvery person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person ***. He shall obtain justice by law, freely, completely, and promptly.” Ill. Const. 1970, art. I, §12.

We agree with Sundstrand’s response that there is no merit to this argument. Sundstrand was awarded subrogation only after a full hearing in which the estate fully participated. We find no basis for a due process claim. (See Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893.) Also, we reiterate that, to the extent that Billy was not fully compensated for damages beyond his medical expenses, that is a result of the limited settlement to which the estate agreed; Sundstrand, which has a valid claim to recovery of its insurance expenses in Billy’s behalf, is not responsible for that agreement.

Based upon our conclusions above, we need not consider Sundstrand’s argument that ERISA (Federal Employee Retirement Income Security Act) provisions preempt any Illinois limitations upon Sundstrand’s right to subrogation.

Accordingly, we affirm the judgment of the circuit court of Stephenson County.

Affirmed.

McLAREN, J., concurs.

PRESIDING JUSTICE REINHARD,

specially concurring:

I would affirm the trial court, but I do not agree with the entire analysis of the majority opinion.

In its principal contention the estate asks us, under principles of equity and public policy, to either deny or restrict Sundstrand’s contractual right to recoup up to the full amount of its medical expense payments from the settlement. Sundstrand responds that the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq. (1988) preempts State judicial or statutory limitations on subrogation provisions in self-insured employee benefit plans. Although the estate acknowledges that there is authority for Sundstrand’s position (see, e.g., Reilly v. Blue Cross & Blue Shield United (7th Cir. 1988), 846 F.2d 416), the estate asks us to rely on contrary authority (see, e.g., FMC Corp. v. Holliday (3d Cir. 1989), 885 F.2d 79).

The Supreme Court recently addressed these conflicting decisions on this issue and ruled that States may not restrict contractual subrogation provisions contained in self-insured employee benefit plans. (FMC Corp. v. Holliday (1990), 498 U.S. _, 112 L. Ed. 2d 356, 111 S. Ct. 403.) The estate concedes in its reply brief that, if ERISA’s preemption provisions are applied, “then all state laws including Illinois common law of subrogation and equity are preempted.” Thus, the Supreme Court’s decision in Holliday preempts judicial modification of the contractual subrogation provision. The majority’s analysis of the validity of the subrogation provision under Illinois law is unnecessary, and I do not partake in it. I concur in the balance of the majority opinion regarding the other issues raised.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF NANCY S. GORSICH, Petitioner-Appellee and ROBERT E. GORSICH, Respondent (Barbara Hirsch, Appellant).
    Second District
    No. 2—90—0303
    Opinion filed February 8, 1991.

      Barbara Hirsch, of Chicago, appellant pro se.

    E. William Bedrava, of Bedrava, Lyman & Van Epps, of Oak Brook, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Barbara Hirsch (Hirsch) appeals from an order of the circuit court of Du Page County awarding her $4,553.28 in attorney fees for her representation of petitioner, Nancy Gorsich, in a dissolution of marriage action. On appeal, Hirsch argues that the trial court erred by failing to enforce the terms of her fee agreement with petitioner and by allowing petitioner to call an expert witness to testify who had not been timely disclosed pursuant to Supreme Court Rule 220(b)(1) (134 Ill. 2d R. 220(b)(1)). We reverse and remand.

Hirsch represented petitioner in the marital dissolution action from December 1983 until August 1987, when petitioner discharged her. She submitted fee petitions to the trial court, which scheduled a trial on the matter for February 23, 1990. A judgment for dissolution of petitioner’s marriage had already been entered at the time of trial.

At trial, Hirsch testified that she had spent 192V4 hours working on petitioner’s case, as set forth in the fee petitions. Additionally, she had incurred $1,444.28 in expenses. Petitioner had signed a fee agreement in which she provided that she would compensate Hirsch at a rate of $160 per hour plus reimbursement of expenses. The trial court did not permit Hirsch to introduce the fee agreement into evidence. Petitioner had already paid $18,176 of this amount; therefore, Hirsch was seeking the balance due, or $14,028.11.

William Stogsdill, an attorney who had practiced family law in Du Page County since 1977, was called by petitioner to testify. Hirsch objected on the basis that Stogsdill had not been disclosed as an expert witness pursuant to Supreme Court Rule 220(b)(1) (134 Ill. 2d R. 220(b)(1)). The trial court denied the objection and permitted Stogsdill to testify.

According to Stogsdill, the reasonable hourly rate for attorneys practicing family law in Du Page County in 1984 was $75 to $100. This rose to $100 to $125 in 1985, and $125 to $150 in 1987.

The trial court awarded Hirsch $100 per hour for 140% hours of time spent working on the case in the office and $140 per hour for 51V2 hours of time out of the office. Additionally, the court determined she was entitled to $1,444.28 in expenses. After crediting petitioner $18,176, the amount she had already paid Hirsch, the final award was $4,553.28. Hirsch, who had sought $14,028.11, now appeals.

As a preliminary matter, we note that on August 16, 1989, the trial court entered an order stating that the hearing on Hirsch’s petition for attorney fees would be held before judgment was entered in the dissolution action. The trial court, however, entered judgment in the dissolution action on November 27, 1989, prior to conducting the hearing on Hirsch’s claim for attorney fees. The judgment order stated that each party would pay its own fees. Hirsch contends that the trial court improperly ignored its own order and deprived her of the opportunity to seek her fees, or a portion thereof, from respondent, Robert Gorsich, pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508). Although Hirsch had opportunities to raise this issue in the trial court, she failed to do so. Issues not raised in the trial court are generally waived and cannot be raised for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279; Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) Hirsch has therefore waived this issue.

Hirsch also contends that William Stogsdill should not have been permitted to testify because petitioner violated Supreme Court Rule 220(b)(1) (134 Ill. 2d R. 220(b)(1)) by failing to disclose him as an expert witness prior to trial. The rule states in relevant part as follows:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence.” 134 Ill. 2d R. 220(b)(1).

The circumstances of this case are similar to those of Illini Aviation, Inc. v. Walden (1987), 161 Ill. App. 3d 345, and Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567. In each of the cases, a party retained an expert or experts either shortly before the trial commenced or after the trial had started. Thus, the 90-day deadline in Rule 220(b)(1) did not come into play. Additionally, in each case, the trial court failed to set a schedule for the disclosure of expert witnesses as mandated by the rule.

In Illini Aviation, the court held that, under these circumstances, there was no violation of Rule 220. (Illini Aviation, 161 Ill. App. 3d at 347.) The court in Klingler Farms declined to follow Illini Aviation and concluded that if the trial court fails to set a schedule for disclosure of expert witnesses, Rule 220 (b)(1) requires such disclosure at least 60 days prior to the commencement of trial. (Klingler Farms, 171 Ill. App. 3d at 571.) In so holding, the court stated as follows:

“To hold otherwise would allow the disclosure of expert testimony at any time, even after the trial had commenced, as long as such disclosure was within 90 days of learning of the substance of his opinion. Such a rule would completely abrogate the intent of Rule 220.” 171 Ill. App. 3d at 571.

We agree with the reasoning in Klingler Farms. The purpose of Rule 220 is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. (Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, 800.) Following Illini Aviation would allow this purpose to be frustrated in cases in which the trial court fails to set disclosure deadlines, and we therefore decline to follow that holding.

This court has previously stated that there is clearly a point in time prior to the beginning of trial by which all expert witnesses must be disclosed. (Mitchell, 180 Ill. App. 3d at 801-02.) In Klingler Farms, the court concluded that if the trial court does not set a schedule for disclosure of experts, that point is 60 days prior to trial. (Klingler Farms, 171 Ill. App. 3d at 571.) The language of Rule 220(b)(1), however, contemplates disclosure at a point which will “insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence.” (134 Ill. 2d R. 220(b)(1).) We therefore hold that if a trial court does not set deadlines for disclosure of expert witnesses, such disclosure must occur in time to enable discovery concerning the witnesses to be completed at least 60 days prior to trial. Since petitioner did not disclose Stogsdill until the date of trial, she failed to do this and therefore failed to comply with the rule.

The last sentence of Rule 220(b)(1) states, “[failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (134 Ill. 2d R. 220(b)(1).) This court has therefore previously held that if a party violates the above rule by failing to disclose an expert "witness in timely fashion, the expert must be barred from testifying unless this would cause a manifest injustice. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224.) As there is no indication a manifest injustice would have resulted if Stogsdill had been barred from testifying, the trial court erred by failing to do so in light of petitioner’s failure to disclose him as an expert witness until trial. Hirsch is therefore entitled to a new trial at which Stogsdill shall be barred from testifying.

Hirsch additionally contends that the trial court erred by failing to enforce the terms of her fee agreement with petitioner, which provided for compensation at the rate of $160 per hour. In the case at bar, Hirsch was proceeding under section 508(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)), which authorizes an attorney in a pending dissolution action to recover earned fees from her client or the other party. (Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, 809.) Section 508(a), however, only authorizes the trial court to award “a reasonable amount” for attorney fees and costs. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) Therefore, as this court pointed out in Gitlin:

“[Retention agreements stating hourly rates are commonplace in divorce cases, and such agreements have never precluded the courts of this State from reducing attorney fees where a court deems such fees were not reasonable for the services rendered or necessary.” Gitlin, 175 Ill. App. 3d at 809.

Upon remand, the court is to award Hirsch a reasonable attorney fee for the services rendered. We agree with Hirsch, however, that the trial court should have permitted her to introduce the fee agreement with petitioner into evidence, as the agreement and the fact petitioner executed it are relevant in determining the reasonableness of Hirsch’s fee request. Upon remand, the fee agreement shall be admitted into evidence.

For the reasons stated above, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

WOODWARD and UNVERZAGT, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID C. MARTIN, Defendant-Appellant.
    Second District
    No. 2—89—0095
    Opinion filed February 13, 1991.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, David C. Martin, appeals a judgment of the circuit court denying his petition for habeas corpus in a proceeding to extradite him to Wisconsin. Defendant’s sole argument on appeal is that fundamental fairness bars the State of Wisconsin from obtaining defendant’s extradition six years after Wisconsin had instituted the first of three such proceedings. We disagree. We affirm the trial court.

On February 18, 1977, defendant escaped from a minimum security correctional facility in Oregon, Wisconsin, and fled shortly thereafter to Florida. Defendant lived in Florida, using the alias David Cleveland, until 1980 or 1981, when he moved to Rockford, Illinois, where his family lived. He lived in Rockford and was not physically outside of Illinois since that time.

In February 1982, defendant was arrested in Illinois on a burglary charge, and the Wisconsin prison from which defendant had escaped advised the sheriff’s department that defendant was a fugitive and requested that authorities in Wisconsin be notified should defendant become available for extradition. Defendant pleaded guilty to the burglary charge in Illinois and was sentenced to four years’ imprisonment beginning on July 26, 1982, and the fugitive information was dismissed. Defendant was released on parole after two years but was returned to prison for a parole violation.

In July 1986, defendant was again sentenced to three years’ imprisonment in Illinois based on his guilty plea to a charge of retail theft. A fugitive information based on the Wisconsin escape was once again dismissed as part of a plea agreement. Defendant was paroled in July 1987 and was discharged from parole in July 1988.

In January 1988, the State of Illinois obtained leave to file a “fugitive information” against defendant, and the Governor of Wisconsin made a formal demand of the Governor of Illinois for the return of defendant. On February 22, 1988, a governor’s warrant for defendant’s arrest was issued.

In September 1988, after a series of continuances not in issue here, defendant filed a petition for habeas corpus. The petition alleged that the 1982 and 1986 dismissal of the fugitive warrants without request for or issuance of governor’s warrants and the knowledge of Wisconsin officials of defendant’s location throughout that time until 1988 contravened “fundamental fairness” and barred defendant’s extradition to Wisconsin 14 years after the commission of the offense charged.

The circuit court conducted a hearing on defendant’s petition, taking judicial notice of the prior fugitive proceedings against defendant and of the prior unrelated Illinois criminal proceedings involving defendant. Defendant argued that under People ex rel. Bowman v. Woods (1970), 46 Ill. 2d 572, “fundamental fairness” required the court to find that Wisconsin had forfeited its right to extradite defendant by its delay in seeking extradition from 1982 to 1988. The trial judge rejected this argument, concluding that Bowman involved extraordinary circumstances not present in this case. The trial judge noted specifically that in the approximately six years between Wisconsin’s first expression of interest in extraditing defendant and the issuance of the governor’s warrant in the present case, defendant was sentenced to prison in Illinois on three separate occasions and stated that “of those six years, defendant has spent probably five in the Illinois State Penitentiary.” The court denied the petition for habeas corpus, and defendant brought this appeal.

Extradition is a summary and mandatory proceeding for the apprehension and return of fugitives from justice. (Michigan v. Doran (1978), 439 U.S. 282, 288, 58 L. Ed. 2d 521, 527, 99 S. Ct. 530, 535; People ex rel. Millet v. Babb (1953), 1 Ill. 2d 191, 195.) Extradition is governed by article IV, section 2, of the United States Constitution and by Federal legislation (18 U.S.C.A. §3182 et seq. (Supp. III 1985)). State courts are bound by article IV, section 2, and it is settled that, although States may supplement Federal regulation, they may not impose more stringent requirements for extradition than those existing under Federal law. Puerto Rico v. Branstad (1987), 483 U.S. 219, 227, 97 L. Ed. 2d 187, 195, 107 S. Ct. 2802, 2808; California v. Superior Court of California (1987), 482 U.S. 400, 405-06, 96 L. Ed. 2d 332, 339, 107 S. Ct. 2433, 2437; People ex rel. Hernandez v. Elrod (1981), 86 Ill. 2d 453, 456.

Extradition of fugitives from justice is an absolute right of the demanding State. (People v. Boswell (1986), 148 Ill. App. 3d 915, 917.) The Supreme Court has held that in a habeas corpus proceeding to challenge extradition, the court of the asylum State may consider only (1) whether the extradition documents on their face are in order; (2) whether the petitioner has been charged with a crime in the demanding State; (3) whether the petitioner is the person named in the request for extradition; and (4) whether the petitioner is a fugitive. California, 482 U.S. at 408, 96 L. Ed. 2d at 341, 107 S. Ct. at 2438-39; Doran, 439 U.S. at 289, 58 L. Ed. 2d at 527, 99 S. Ct. at 535.

Defendant concedes that all four of these requirements have been met. He contends, however, that the Illinois Supreme Court in People ex rel. Bowman v. Woods (1970), 46 Ill. 2d 572, imposed a fifth requirement that was not met in this case, namely, that the demanding State not have forfeited its right to extradition by its “inordinate delay” in enforcing that right.

In Bowman, the petitioner was originally sentenced in 1951 to 10 years and 10 days’ imprisonment in Alabama for the theft of 10 cows. After serving slightly more than a year of his sentence, he escaped from the Alabama prison and fled to Illinois. Alabama commenced extradition proceedings against him in 1955 and 1957, but each time Alabama took no conclusive action and the petitioner was eventually released. In May 1968, the petitioner was arrested pursuant to a governor’s warrant, and his petition for habeas corpus was denied. The Hlinois Supreme Court reversed. It noted that the scope of a habeas corpus hearing is normally limited to the four issues we have listed, but stated that “because there was an inordinate delay not attributable to the petitioner, closer scrutiny is required.” (46 Ill. 2d at 575.) The court then explained:

“In this case there was an unexplained 13-year delay between the first extradition proceeding in 1955 and the last effort in 1968. During this period the State of Alabama knew of Bowman’s presence in Hlinois and twice refused to extradite him. As a consequence, because he has been unable to make bail, petitioner has been imprisoned in Illinois on three occasions pending disposition of the extradition proceeding. We believe that the extraordinary circumstances of this case require an application of the concept of fundamental fairness, as expressed in many appeals. [Citations.] While normally the mere passing of time will not discharge petitioner, at a certain point and after a certain number of incompleted extraditions, we must find that the State of Alabama has forfeited its right to enforce extradition.” 46 Ill. 2d at 575.

The vitality of the Bowman holding appears dubious in view of the more recent United States Supreme Court’s unequivocal pronouncements that controlling Federal law permits the courts of the asylum State to undertake only the four-part inquiry set out in California and Doran and that States may not impose additional requirements for extradition. To the extent that dilatory behavior by the demanding State may be cognizable as a violation of due process or fundamental fairness, the issue would appear to be reserved for decision by the court of the demanding State in the subsequent criminal proceeding. See Doran, 439 U.S. 282, 58 L. Ed. 2d 521, 99 S. Ct. 530 (court of asylum State in habeas corpus proceeding must respect determination of probable cause by demanding State); Biddinger v. Commissioner of Police (1917), 245 U.S. 128, 62 L. Ed. 193, 38 S. Ct. 41 (petitioner not allowed to introduce evidence that he did not flee demanding State until after statute of limitations ran out).

However, we need not determine whether Bowman is still valid law, because the facts in this case fall far short of the “extraordinary circumstances” under which Alabama was held to have forfeited its right to extradition. There, the court was faced with an unexplained delay of 13 years in which the fugitive was not in custody and thus always available for extradition, yet the demanding State simply refused to proceed. Here, there was a delay of 11 years between defendant’s escape and the present proceeding by Wisconsin. However, defendant spent at least four years living in Florida under an alias, and there is nothing in the record to indicate that Wisconsin officials were aware of his location until his arrest in Illinois early in 1982. Defendant may not, as he concedes, argue that his extradition would be fundamentally unfair owing to a delay that resulted from his own efforts at evading the authorities. Beauchamp v. Elrod (1985), 137 Ill. App. 3d 208.

Furthermore, defendant does not contest the trial judge’s finding that he spent approximately five of the six years that he was in Illinois incarcerated in Hlinois prisons for crimes committed in this State. It is settled that the demanding State’s right to extradition, though absolute, does not extend to the delivery of a fugitive from the time that the asylum State has commenced criminal proceedings against the fugitive through the conclusion of the sentence imposed by the asylum State. (Ill. Rev. Stat. 1987, ch. 60, par. 36; People v. Klinger (1925), 319 Ill. 275.) Delivery of the fugitive during this period is entirely at the discretion of the Governor of the asylum State, and the Governor’s right to do so in no way involves any personal right of the fugitive. (People ex rel. Barrett v. Bartley (1943), 383 Ill. 437, 445; Klinger, 319 Ill. 275.) Unlike the State of Alabama in Bowman, Wisconsin did not inexplicably delay its efforts at obtaining a readily available fugitive. Rather, there is no doubt that the vast majority of the delay between the first and the last extradition proceedings was occasioned by defendant’s own criminal activities in Hlinois. Wisconsin is not blameworthy because Hlinois declined to exercise a purely discretionary option to waive jurisdiction over defendant.

Far from approaching the “extraordinary circumstances” of Bowman, the facts here fit well within the established principle that a State’s right to the delivery of a fugitive from justice is unaffected by the dismissal of previous extradition proceedings or by the mere passage of time. (People ex rel. Ritholz v. Sain (1962), 26 Ill. 2d 455, cert. denied (1963), 374 U.S. 807, 10 L. Ed. 2d 1031, 83 S. Ct. 1696; Bowman, 46 Ill. 2d at 575.) The circuit court properly denied the petition for habeas corpus.

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

Affirmed.

INGLIS and WOODWARD, JJ., concur.