author: PRESIDING JUSTICE HARTMAN

text:
    JOHN DOE et al., Plaintiffs-Appellants and Counterdefendants-Appellants, v. ILLINOIS STATE MEDICAL INTER-INSURANCE EXCHANGE et al., Defendants-Appellees (Illinois State Medical Inter-Insurance Exchange, Counterplaintiff-Appellee).
    First District (2nd Division)
    No. 1—91—1666
    Opinion filed June 23, 1992.
    Rehearing denied September 10, 1992.

      Monico, Pavich & Spevack, of Chicago (Robert J. Pavich and Barry A. Spevack, of counsel), for appellants.
    Hopkins & Sutter, of Chicago (Michael M. Conway and Robert R. Hall, Jr., of counsel), for appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

This appeal involves the construction of two insurance policies. John and Jane Doe successfully sued a physician for several acts of medical negligence committed against John in 1984. Jane’s action was based upon loss of John’s services and companionship. The doctor was insured under two consecutive policies issued by Illinois State Medical Inter-Insurance Exchange (insurer) during the subject periods. Plaintiffs secured a judgment against the doctor, for which the insurer tendered to plaintiffs $1 million, the “per claim” limits of the first policy, but denied coverage under the second policy.

Plaintiffs filed a declaratory action against the insurer, seeking a clarification of coverage under the policies. Both parties filed motions for summary judgment, which the circuit court denied to plaintiffs but granted in the insurer’s favor. Plaintiffs appeal, questioning among other issues whether (1) the insurer can deny coverage under the circumstances of this case; (2) the second insurance policy provided coverage for the doctor’s successive negligent acts; and (3) the doctor’s negligence fell within the aggregate limits of policy coverage requiring separate and discrete acts of negligence within the policy period.

On July 9, 1983, the insurer issued its policy to Dr. Gonzalo P. Magsaysay that covered him for acts of medical negligence he might commit between the period of July 1, 1983, through July 1, 1984. The policy provided $1 million in professional liability coverage for each claim arising within that period and $3 million in the aggregate for separate claims within the policy period. Dr. Magsaysay paid the insurer a premium of $22,308 per annum. A second policy, marked “renewal,” providing essentially the same coverage, applied to the period from July 1, 1984, to July 1, 1985, for which Dr. Magsaysay paid an increased premium of $23,068 per annum.

Plaintiffs’ underlying suit against Dr. Magsaysay for medical malpractice resulted in a jury verdict on June 22, 1990, in favor of plaintiffs in the amount of $2,452,500, after deducting 17% for John’s contributory negligence. The insurer paid to plaintiffs $1 million plus interest on September 4, 1990, under the policy issued to Dr. Magsaysay for the period from July 1, 1983, to July 1, 1984. Plaintiffs sought a declaration that the second policy, effective from July 1, 1984, to July 1, 1985, also applied to Dr. Magsaysay’s liability. The insurer answered, filed a counterclaim, and plaintiffs moved for judgment on the pleadings. Thereafter, the insurer moved for summary judgment and plaintiffs did the same. On April 26, 1991, the circuit court denied plaintiffs’ motion, granted the insurer’s motion and found that the insurer has no indemnity insurance liability for plaintiffs’ injuries under the July 1, 1984, to July 1,1985, policy.

To explicate the result in this appeal, the factual background in the underlying trial must be recounted. Dr. Mitchell V. Kaminski, Jr., a board-certified general surgeon, was called by plaintiffs as an expert witness. At plaintiffs’ request, he reviewed medical and hospital records involving examination and treatment of John during 1984. John had consulted Dr. Magsaysay on February 16, 1984, and complained of excessive thirst and urination. This suggested diabetes. Determining that John’s blood sugar level was significantly above normal, Dr. Magsaysay by telephone prescribed Diabinese. On February 24, 1984, he examined John, but did not get a blood sugar determination on that date or at any time thereafter through June 14, 1984. Dr. Kaminski stated that greater measures should have been taken in monitoring John’s blood sugar level during that period.

On June 14, 1984, Dr. Magsaysay by telephone prescribed for John the drug Lasix, a potent diuretic, without conducting an examination. In Dr. Kaminski’s opinion, prescribing a diuretic for a patient who was losing water due to diabetes was negligent behavior because Lasix would cause further dehydration. He added that, having prescribed Lasix, Dr. Magsaysay was again negligent in not properly monitoring or testing plaintiff. Dr. Kaminski was of the opinion that Dr. Magsaysay’s actions during this period fell below the acceptable standard of care in the community. Also, by prescribing Lasix, Dr. Kaminski concluded, Dr. Magsaysay caused plaintiff to develop pancreatitis, an opinion later concurred in by another of plaintiffs’ experts, Dr. Robert J. Baker, a surgeon who subsequently operated on plaintiff for this condition.

On July 26, 1984, after the insurer issued the second professional liability policy to Dr. Magsaysay, covering the period from July 1, 1984, to July 1, 1985, John again contacted Dr. Magsaysay, complaining of abdominal pain. The doctor prescribed Aldactazide, another potent diuretic; however, according to Dr. Kaminski, he again failed to properly follow John’s condition, since this diuretic, when taken in conjunction with another, required close monitoring. The doctor’s actions again were below the acceptable standard of care in the community. John visited Dr. Magsaysay on August 9, 1984, complaining of abdominal pain. The doctor, although suspecting pancreatitis, treated John for ulcers, prescribing Zantac, which stops acid production, and Mylanta, an antacid.

On August 13, 1984, Dr. Magsaysay had John admitted to South Chicago Hospital. He was diagnosed as suffering from severe dehydration, pancreatitis and diabetic ketoacidosis. Dr. Kaminski testified that the tendency toward dehydration due to diabetes was compounded by the Lasix and Aldactazide, causing severe dehydration. He added that the diabetic ketoacidosis was caused by the failure to control the diabetes.

Dr. Kaminski testified that John’s pancreatitis and other conditions could have been treated and resolved in relatively “straight order” within 10 days to two weeks, without surgery. Both Dr. Kaminski and Dr. Baker asserted that a patient diagnosed as suffering from pancreatitis required that the pancreas be rested, which means that the patient be fed nothing by mouth, but treated intravenously. Instead, Dr. Magsaysay mistreated the pancreatitis and ordered a liquid diet for plaintiff which, Dr. Kaminski asserted, stimulated the pancreas to produce enzymes, already digesting the pancreas from within. By August 21, 1984, nonsurgical recovery was still possible, but the liquid diet continued. The pancreas continued to digest itself. A pseudocyst had formed by August 28, 1984; yet, oral feeding continued. By September 7, 1984, an abscess had formed. The condition became life threatening. Dr. Magsaysay performed surgery on John to drain pus. A second pancreatic abscess formed, which Dr. Kaminski urged was probably due to the continuation of the oral diet.

During the same hospitalization, Dr. Magsaysay mistreated John’s diabetes. His blood sugar level, nutrition and dehydration had gone out of control. In Dr. Kaminski’s opinion Dr. Magsaysay’s management of these conditions as well fell below the acceptable standard of care in the community.

At a video-taped deposition, Dr. Baker, a general surgeon, revealed that John was transferred from South Chicago Hospital to the University of Illinois Hospital. By then, John was suffering from significant dehydration and had acute necrotizing pancreatitis. He was given large volumes of fluid and blood components. He was operated on twice. Dr. Baker removed much of John’s pancreas, spleen and greater omentum, which had become infected. Dr. Baker added that John subsequently contracted hepatitis and tested HIV positive, probably due to the over 200 units of blood he received, an opinion with which Dr. Kaminski agreed. At that time, no effective method to screen for AIDS existed.

Following trial, the jury returned a general verdict in the amount of $1,452,500 for John and $1 million for Jane. The insurer paid plaintiffs $1 million plus judgment interest in accordance with the single claim limit under Dr. Magsaysay’s July 1, 1983, to July 1, 1984, policy. The insurer refused to pay the remaining portion of the judgment with coverage from the July 1, 1984, to July 1, 1985, policy, contending that although the doctor’s acts of negligence spanned the two policy periods, they represented one continuing series of related acts or omissions, which began during the July 1, 1983, to July 1, 1984, policy period and, therefore, the acts were only covered by the $1 million-per-claim limit of the earlier policy. The present lawsuit followed, with the motions and cross-motions resulting as first noted.

I

Plaintiffs contend that the insurer cannot deny coverage under the second policy because it did not defend under a reservation of rights or file a declaratory judgment action, and because it controlled Dr. Magsaysay’s defense despite a conflict of interest which it did not disclose to him.

The conflict, plaintiffs theorize, arises in the following way. Although both insurer and insured would benefit from findings of no liability, it was in the insurer’s sole interest that any negligence occur totally within one policy period, or that negligence be found during the earlier policy with the subsequent acts occurring during the later policy being deemed “related.” This latter scenario conflicted with Dr. Magsaysay’s interest. If found liable, it would be in the doctor’s interest that any negligent acts be adjudged to have occurred either during both periods or be considered unrelated. Otherwise, the doctor faced the situation in which the insurer now tries to leave him, under-insured, because the insurer says it does not have to pay his entire judgment. The insurer did not advise Dr. Magsaysay of its interpretation of the policy until after a verdict had been returned. By allowing him to proceed through trial without knowledge of this conflict and defending this case without a reservation of rights, plaintiffs maintain, the insurer violated a fundamental obligation owed an insured by his insurer, thereby resulting in an estoppel to raise the defense of noncoverage. Illinois Masonic Medical Center v. Turegum Insurance Co. (1988), 168 Ill. App. 3d 158, 522 N.E.2d 611.

• 1,2 Where a conflict of interest exists, and an insurer neglects to reserve its rights, the insurer generally is estopped from asserting a defense of noncoverage when it undertakes to defend its insured in an underlying tort action. (Allstate Insurance Co. v. Carioto (1990), 194 Ill. App. 3d 767, 777, 551 N.E.2d 382 (Carioto).) An insurer has a duty to inform its insured adequately of the rights it intends to reserve when a policy defense may turn upon facts to be determined in that litigation. (Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 318 N.E.2d 315 (Cowan).) An informed insured then can choose intelligently between retaining his own counsel or accepting counsel from the insurer. (Cowan, 22 Ill. App. 3d at 896.) An insurer’s notice of reservation of rights must make specific reference to the policy defense which may be asserted and the potential conflict of interest. (Cowan, 22 Ill. App. 3d at 896.) Failure to defend under a reservation of rights, or secure a declaratory judgment as to coverage, estops an insurer from raising policy coverage defenses thereafter and renders the insurer liable for the award against the insured and the costs of the suit. (Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079 (Urso).) Assumption and control of the insured’s defense, absent a reservation of rights, estops the insurer from questioning policy coverage. Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill. 2d 481, 263 N.E.2d 823 (Varkalis).

Plaintiffs medical treatment extended over the effective dates of two policies. Dr. Magsaysay and the insurer had conflicting interests, contrary to the insurer’s assertions. It was clearly in the doctor’s interest that his negligent acts be deemed unrelated and, therefore, covered under both policy periods. Otherwise, the doctor would be liable personally for any judgment corresponding to his conduct during the second policy period. Contrariwise, the insurer seeks to have the doctor’s negligence constitute a series of related acts so that it has liability only under the 1983 to 1984 policy, which was in effect when the negligent conduct began. By not warning Dr. Magsaysay about this conflict, reserving its rights or filing a declaratory judgment action until after the verdict, the insurer is estopped from contesting coverage under the second policy here. Carioto, 194 Ill. App. 3d 767, 551 N.E.2d 382; Cowan, 22 Ill. App. 3d 883, 318 N.E.2d 315; Urso, 88 Ill. 2d 444, 430 N.E.2d 1079; Varkalis, 46 Ill. 2d 481, 263 N.E.2d 823; Insurance Corp. of Ireland, Ltd. v. Board of Trustees (7th Cir. 1991), 937 F.2d 331.

The insurer insists that it properly advised Dr. Magsaysay of his coverage and his right to seek other counsel. The record is to the contrary. Two letters were sent by the insurer to Dr. Magsaysay. The first was written on August 9, 1985. The second letter was dated June 14, 1990, the day on which trial began in the underlying case. Neither letter informed the doctor that the insurer would deny coverage as to more than one claim. Neither letter made specific reference to the policy defense. In neither letter is there found any mention of a potential conflict of interest. (Cowan, 22 Ill. App. 3d at 896.) The insurer was obliged to decline the defense (Urso, 88 Ill. 2d at 451), or adequately inform Dr. Magsaysay why it did not intend to provide coverage either for aggregate claims, or under the second policy, or advise him of the conflict of interest. Being so informed, at the least the doctor could have requested, even at that late date, submission to the jury of special interrogatories or an allocated verdict, which would have specified the acts for which he was liable. Duke v. Hoch (5th Cir. 1972), 468 F.2d 973, 979 (Duke); Gay & Taylor, Inc. v. St. Paul Fire & Marine Insurance Co. (W.D. Okla. 1981), 550 F. Supp. 710, 716.

The insurer’s reliance on State Farm Mutual Automobile Insurance Co. v. Lucas (1977), 50 Ill. App. 3d 894, 365 N.E.2d 1329, is unfounded. Lucas is inapposite to the case sub judice, since there the court found no waiver because the insured was specifically informed of a policy defense. (Lucas, 50 Ill. App. 3d at 898-99.) Unlike Lucas, here Dr. Magsaysay was not so informed.

The present insurer is estopped from denying coverage under the second policy; summary judgment entered in its favor accordingly must be reversed.

II

Plaintiffs next assert that even if waiver and estoppel did not apply, judgment should have been entered for them because Dr. Magsaysay committed negligent acts and omissions during the effective dates of the July 1, 1984, to July 1, 1985, policy, independently of his previous conduct.

Plaintiffs rely on the policy’s coverage agreement, which provides that the insurer will pay on Dr. Magsaysay’s behalf all sums which he became legally obligated to pay as damages “because of personal injury arising out of the rendering of or failure to render, during the policy period ***, professional services.” They point to Dr. Magsaysay’s mistreatment of John’s pancreatitis by having him fed by mouth, the prescription of Aldactazide in combination with Lasix without adequate monitoring, and his failure to control John’s elevated blood sugar, dehydration and nutrition during the effective dates of the second policy period.

The insurer counters with the policy’s provision that “all personal injuries sustained by one or more persons arising out of a single act or omission or a series of related acts or omissions in the rendering of or failure to render professional services to any one person shall be considered one claim.” Based upon this language, the insurer urges that the doctor’s negligence constituted one claim as a series of related acts and, therefore, the insurer was liable for the one claim limit of $1 million, which was already paid. The insurer asserts that the clause it relies upon is clear, unambiguous and should be applied as written. (American Standard Insurance Co. v. Allstate Insurance Co. (1991), 210 Ill. App. 3d 443, 446, 569 N.E.2d 162 (American Standard).) We disagree.

The “related acts” provision of the policy is ambiguous for several reasons. First, although the insurer insists the clause excludes liability, it is not found in the policy section containing the other liability exclusions. Second, the clause is located in the limits of liability section, which does not exclude coverage, but defines the number of claims possible once coverage exists. Third, the provision is predicated upon the prepositional phrase “under this policy,” making it unclear as to how the clause could possibly exclude coverage when another policy existed. Finally, the term “related” is not defined in the policies and has no generally accepted legal meaning.

Insurance contracts are analyzed for the purpose of ascertaining the intent of the parties; ambiguous policy language will be construed against the insurer. (Dairyland Insurance Co. v. Linak (1991), 208 Ill. App. 3d 892, 896, 567 N.E.2d 638; Jacobs v. Central Security Mutual Insurance Co. (1990), 194 Ill. App. 3d 1094, 1096, 551 N.E.2d 1059.) An insurance contract will be considered ambiguous if it is subject to more than one reasonable interpretation. (American Standard, 210 Ill. App. 3d at 446.) In determining whether there is an ambiguity, the clause must be read within its factual context. (American Standard, 210 Ill. App. 3d at 446.) As here, when an exclusionary clause in a policy is relied upon to deny coverage, its applicability must be clear and free from doubt; any question with respect to coverage will be resolved in favor of the insured. (American Standard, 210 Ill. App. 3d at 446.) Under the foregoing rules of construction, and in light of the policy language chosen by the insurer, it is evident that Dr. Magsaysay’s post-July 1, 1984 negligence is covered by the July 1,1984, to July 1, 1985, policy.

The insurer posits that the second policy was simply a renewal, indicating additional payment to plaintiffs would constitute double coverage under the same policy; however, in Illinois, the renewal of an insurance policy is generally conceived to be a new contract (Village of Camp Point v. Continental Casualty Co. (1991), 219 Ill. App. 3d 86, 103, 578 N.E.2d 1363, appeal denied (1992), 143 Ill. 2d 636 (Village of Camp Point)), particularly where, as here, material and significant differences exist, such as effective dates, increased premiums, and the fact that the policy is conditioned upon new representations by the insured as to his current standing in his profession. Therefore, the latter policy was not a mere continuation of the former. See Bronstein v. I N A Life Insurance Co. of North America (1990), 207 Ill. App. 3d 910, 566 N.E.2d 484.

The negligence committed by Dr. Magsaysay on and after July 1, 1984, was independent of that which he committed during the preceding period, a point further developed in part III of this opinion. Summary judgment entered for the insurer on this issue was in error and must be reversed.

Ill

Plaintiffs claim that even if the “related acts” language applies to both policies, summary judgment should have been granted for them because at least two separate acts of negligence occurred during the second policy period, apart from his negligence during the first policy period, entitling Dr. Magsaysay to insurance coverage of up to the aggregate sum of $3 million.

The jury was instructed that plaintiffs claimed they were injured and defendant was negligent “in one or more of the following respects,” listing a multiple number of possibilities. Also, the jury was instructed that plaintiffs had the “burden of proving *** defendant acted or failed to act in one of the ways claimed *** and in so acting or failing to act, the defendant *** was negligent.” The verdict for plaintiffs did not specify which acts of negligence were proved, stating only that the damages suffered resulted from “the occurrence in question.” The jury may have found defendant negligent in “one or more” of the ways plaintiffs claimed, as instructed. Which of those ways were proved, during which policy period the negligent acts were committed, or whether no negligence was committed during the first policy period or, alternatively, during the second policy period, are questions not put to the jury by either party. Although the insurer suggests that plaintiffs should have submitted special interrogatories or an allocated verdict form to the jury, it was the insurer who was aware that such a problem existed as between itself and its insured, Dr. Magsaysay; therefore, it was the insurer’s obligation to ameliorate its own allocation difficulty. Duke, 468 F.2d at 979.

Several issues having been presented to the jury, its return of a general verdict created the presumption that all material issues of fact upon which evidence was received were decided in favor of plaintiffs. (McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 217, 481 N.E.2d 787; Perry v. Saleda (1975), 34 Ill. App. 3d 729, 735, 340 N.E.2d 314; see also Peoples v. Granite City Steel Co. (1982), 109 Ill. App. 3d 265, 269-71, 440 N.E.2d 363; Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 572, 525 N.E.2d 1172.) The jury instruction having been presented in the disjunctive, it cannot be presumed that the verdict was in favor of all possible conclusions. (Cowan, 22 Ill. App. 3d at 894-95.) Which of the various acts were proved cannot be ascertained from this record. The insurer’s failure to inform Dr. Magsaysay that such a finding was necessary to ascertain coverage available to him under the policies has led to these circumstances.

The insurer maintains that all negligent acts constituted one continuing action and were properly covered as one claim under the July 1, 1983, to July 1, 1984, policy, in effect when the acts began; therefore, no matter which act or acts were proved, only the first policy would be applicable. In support of its theory, the insurer points to Dr. Kaminski’s testimony that Dr. Magsaysay’s actions constituted a “chain of events, a domino effect” leading up to plaintiff contracting the viruses. The “domino effect,” however, does not merge each of the negligent actions into one.

The record here demonstrates that after the first policy period expired, Dr. Magsaysay prescribed a new and potent diuretic, Aldactazide, for John on July 26, 1984, to be taken in conjunction with his previously prescribed Lasix. He then failed to monitor this hazardous combination, causing John to become severely dehydrated. Dr. Kaminski testified that these acts and failures, which occurred within the effective dates of the second policy, constituted negligence, and led to John’s pancreatitis.

Thereafter, on August 13, 1984, John was admitted to the hospital suffering from moderate pancreatitis, severe dehydration and diabetic ketoacidosis. Dr. Magsaysay then committed further new and separate negligent acts. Improperly, he treated the pancreatitis by feeding John by mouth. He then committed additional acts of negligence by failing to monitor John’s nutritional status, failing to institute total parenteral nutrition, and failing to prescribe for John the fluids he needed. These new acts and failures were separate, not only from those committed during the first policy period, but were different from each other, giving rise to several claims under the second policy.

An insured who commits separate negligent acts in the treatment of a single patient becomes amenable to multiple claims. In Arizona Property & Casualty Insurance Guaranty Fund v. Helme (1987), 153 Ariz. 124, 735 P.2d 451, for example, an insurance policy covered two doctors up to $3 million per occurrence. One doctor did not diagnose the patient’s worsening medical problem or adequately review X rays, causing the patient’s condition to further deteriorate. The second doctor also failed to review the X rays, yet operated on him, contributing to the patient’s death. Each of the diagnostic failures was found to constitute a separate causal act by the doctors, and each gave rise to separate claims. Helme, 153 Ariz. at 127, 735 P.2d at 458.

In St. Paul Fire & Marine Insurance Co. v. Hawaiian Insurance & Guaranty Co. (1981), 2 Haw. App. 595, 637 P.2d 1146, the insured’s estate contended that on three occasions, once by one doctor, and twice by another, the decedent was administered anesthesia negligently, contributing to his death. The primary insurer settled for both doctors in the amount of $165,000, and then sued the excess carrier for the amount over $ 100,000-per-claim policy limits. The court identified three separate acts of negligence leading to decedent’s death, resulting in three claims. The court observed that if the two physicians had been insured by different insurers a claim had been stated against each. Only because of their being insured by the same insurer was it asserted that these are not separate claims against them.

In Wiltshire v. Government of Virgin Islands (3d Cir. 1990), 893 F.2d 629 (Wiltshire), doctors fed a relatively healthy, but premature, baby through a UV catheter that remained in place for seven days, despite the danger of serious infection through extended use. Infection eventually occurred, causing the baby’s condition to deteriorate. When she developed difficulty in breathing, cardiopulmonary resuscitation was negligently administered, aggravating her condition. The hospital fed her through an IV feeding line inserted into her scalp. The IV line leaked and caused disfiguring scars on her forehead and face. These negligent acts caused spastic quadriparesis, a seizure disorder and disfiguring permanent scarring. The negligence was considered to be three separate occasions in malpractice.

In the case sub judice, during the effective dates of the July 1,1984, through July 1, 1985, policy, Dr. Magsaysay negligently prescribed Aldactazide in combination with Lasix and did not monitor John’s blood sugar levels. When John developed pancreatitis, dehydration and diabetic ketoacidosis, Dr. Magsaysay committed new and additional acts of negligence. His decision to have John fed by mouth is one example. Dr. Magsaysay did not have John fed by mouth because he failed to properly prescribe and monitor certain drugs given him months before; it was because he failed to treat a new condition properly.

It is the causative events producing the damage that constitute actionable conduct, not the number of injuries. (Village of Camp Point, 219 Ill. App. 3d at 101; Illinois National Insurance Co. v. Szczepkowicz (1989), 185 Ill. App. 3d 1091, 542 N.E.2d 90.) These “additional separate and distinct acts of negligence” (Wiltshire, 893 F.2d at 636) gave rise to two or more separate claims under the second insurance policy.

Dr. Magsaysay’s discrete acts of unrelated negligence during the second policy period invoke the aggregate limits provision of that policy. It was error to hold otherwise.

For the foregoing reasons, we reverse and remand to the circuit court with instructions to enter orders requiring the insurer to pay plaintiffs the balance of the jury verdict and judgment.

Reversed and remanded.

SCARIANO and DiVITO, JJ., concur.

      The first letter, for some reason, interprets the coverage afforded Dr. Magsaysay as “bodily injury limits of $1,000,000 per occurrence” (emphasis added) rather than incorporating the policy language of “per claim.”

      Interestingly, the August 9, 1985, letter advised Dr. Magsaysay that he had coverage from July 1, 1983, through July 1, 1985, the end of the coverage period of the second policy; however, without explanation, the 1990 letter, post-marked on the date that the underlying trial began, stated that he was covered only through July 1,1984.

      “Related act” has been interpreted to mean “causally connected” rather than “logically connected,” thereby dependent upon objective facts rather than subjective mental processes. Arizona Property & Casualty Insurance Guaranty Fund v. Helme (1987), 153 Ariz. 129, 735 P.2d 451.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL LYNCH, Defendant-Appellee.
    First District (4th Division)
    No. 1—90—1697
    Opinion filed August 20, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Gael M. O’Brien, Special Assistant State’s Attorney, and Renee Goldfarb and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
    Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

In August 1984, a complaint for preliminary examination was filed alleging that defendant Michael Lynch had committed a murder in Cook County a few days earlier and a warrant was issued for his arrest. While the arrest warrant was outstanding, defendant’s co-offender, Vincent Wade, was prosecuted and convicted for the murder. Thereafter, the Chicago police department learned that defendant was being held in Los Angeles, California. Extradition proceedings were instituted and defendant was appointed local counsel in that matter. Defendant waived formal extradition proceedings and was returned to Chicago by police officers.

Following his arrival at Chicago police headquarters, defendant was advised of his Miranda rights, which he stated that he understood. Defendant agreed to speak to authorities, and gave incriminating statements regarding his involvement in the 1984 murder. Thereafter, defendant was indicted for the offense and appointed counsel to represent him on these charges. He filed a motion to suppress his inculpatory statements, arguing that the statements had been taken in violation of his sixth amendment right to counsel under the United States Constitution. (U.S. Const., amend. VI.) Following a hearing, the trial court allowed the defendant’s motion to suppress, and the State appeals.

Upon review, defendant claims that three circumstances caused to trigger his sixth amendment right to assistance of counsel: (1) the filing of the complaint for preliminary examination in order to obtain a warrant for defendant’s arrest; (2) the commencement of extradition proceedings to cause his return to Illinois; and (3) the prosecution and conviction of his co-offender with respect to the 1984 murder. We con-elude that these factors, considered separately or cumulatively, did not cause to activate defendant’s sixth amendment right to counsel when he was questioned by authorities upon his arrival in Chicago on December 13, 1988. In addition, assuming arguendo that defendant’s sixth amendment right to an attorney had arisen when he was first questioned by authorities, we determine that the officers’ admonition of Miranda rights to defendant, which defendant stated he understood and agreed to waive, was sufficient to waive defendant’s sixth amendment right to counsel. Accordingly, we reverse the trial court’s allowance of defendant’s motion to suppress, and remand for further proceedings consistent herewith.

The record reveals the following pertinent facts. On August 12, 1984, Detective Frank Glynn of the Chicago police department filed a complaint for preliminary examination alleging that defendant had murdered Tyrone Tolliver in Cook County on August 9, 1984. On that same date, a judge of the circuit court of Cook County issued a warrant for defendant’s arrest. Defendant’s co-offender, Vincent Wade, was later convicted for his involvement in the 1984 Tolliver murder. See People v. Wade (1989), 185 Ill. App. 3d 898, 542 N.E.2d 58.

Approximately four years after the issuance of the warrant for defendant’s arrest, authorities of the Chicago police department learned that defendant was being held in Los Angeles, California. Extradition proceedings were instituted in Los Angeles in August 1988 and defendant was appointed local counsel to represent him. Defendant executed a waiver of formal extradition proceedings on August 18, 1988. Defendant was returned to Chicago by Detectives Frank Glynn and George Basile of the Chicago police department on December 13,1988.

According to the testimony of Detective Glynn at the hearing on defendant’s motion to suppress, the detectives first saw defendant in a lock-up facility at the airport in Los Angeles in the early afternoon hours of December 13, 1988. The officers informed defendant that they would be returning him to Chicago because of a warrant for his arrest with respect to a murder that had occurred in 1984. Defendant stated that he “knew what it was about.” Although no questioning was conducted at this time, the detectives advised defendant of his Miranda rights, which he said he understood.

Detective Glynn stated that, later that afternoon, the detectives returned to the lock-up facility to transport defendant to the air terminal. According to Detective Glynn, neither he nor Detective Basile ever initiated any conversation with the defendant regarding the murder during the airline flight to Chicago. Detective Glynn testified that there were several occasions during the flight when the defendant asked what was going to happen upon their return to Chicago. In each instance, Detective Basile informed defendant that the case would be discussed when they arrived at the police station in Chicago.

Detective Glynn testified that the flight landed at O’Hare later in the day and defendant arrived with the detectives at Area 2 police headquarters at approximately 8:30 p.m. Defendant was placed in an interview room and advised that the officers would return shortly. When the detectives returned, they advised defendant that he was in custody for the murder of Tolliver that occurred in August 1984. Defendant stated that he understood. Defendant was also advised of his Miranda rights, which he stated that he understood. The detectives then informed defendant that the officers would hold a lineup at approximately 9:30 p.m., and that defendant had a right to have an attorney present for the lineup if he wished. According to Detective Glynn, defendant “stated he did not need one and he was willing to stand in the lineup.” The detectives told the defendant they would speak to him after the lineup, and the defendant asked who would view the lineup. The detectives responded that the lineup would be viewed by the “girl that was in the apartment the night of the murder.” Defendant said he would participate in the lineup.

After the lineup, the detectives went back to the interview room where defendant had been placed. Defendant was again advised of his Miranda rights, which he stated that he understood. Defendant agreed to speak to the officers, and the detectives told him that defendant had been identified in the lineup. Thereafter, a conversation ensued between the officers and the defendant, during the course of which defendant made incriminating statements.

Thereafter, the detectives notified the Cook County State’s Attorney’s office. Assistant State’s Attorney Mark LeFevour arrived at the police station and, after reviewing various reports and interviewing witnesses, spoke to defendant in the presence of Detective Glynn. Defendant was again advised of his Miranda rights, which he waived. Defendant then gave an inculpatory statement to LeFevour.

On cross-examination, Detective Glynn stated that he had not known that defendant had been appointed counsel in the extradition proceeding, nor that defendant had had at least four or five court appearances with respect thereto prior to defendant’s return to Chicago.

The record reflects that a grand jury, convened on December 5, 1988, returned indictments against defendant that charged him with murder and numerous related offenses regarding the 1984 Tolliver incident. The indictments were filed in the circuit court of Cook County on January 6, 1989. Defendant was arraigned and appointed counsel to represent him with respect to these charges. Defendant’s attorney filed a motion to suppress defendant’s incriminating statements, arguing that they had been taken in violation of his sixth amendment right to counsel. Following a hearing, the trial court allowed defendant’s motion to suppress. The State appeals. See 134 Ill. 2d R. 604(aXl).

The defendant argues that his sixth amendment right to counsel with respect to the 1984 Tolliver murder had attached upon his return to Chicago in December 1988. Defendant asserts that his sixth amendment right to the assistance of an attorney had been triggered because: (1) a complaint for preliminary examination had been filed against him; (2) extradition proceedings had been instituted to effect his return to Chicago; and (3) his co-offender in the Tolliver murder, Vincent Wade, had been prosecuted and convicted for his involvement in the incident. See People v. Wade (1989), 185 Ill. App. 3d 898, 452 N.E.2d 58.

We conclude that these three circumstances, considered separately or cumulatively, did not trigger defendant’s sixth amendment right to counsel. Moreover, even assuming arguendo that defendant’s sixth amendment right to counsel had arisen by the time that he was questioned by authorities on December 13, 1988, regarding the 1984 Tolliver murder, we find that the defendant’s admonition and waiver of Miranda warnings were sufficient to protect his sixth amendment right to counsel. Accordingly, we reverse and remand.

I

The sixth amendment to the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right to *** have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) This guarantee arises “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” (United States v. Gouveia (1984), 467 U.S. 180, 188, 81 L. Ed. 2d 146, 154, 104 S. Ct. 2292, 2297, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882 (plurality opinion).) By ensuring that a suspect is provided the right to assistance of an attorney upon the commencement of adversarial judicial proceedings, the sixth amendment protects the accused’s interests when the government has committed itself to prosecute, because it is at this time that “the adverse positions of government and defendant have solidified [and] a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, 406 U.S. at 689, 32 L. Ed. 2d at 418, 92 S. Ct. at 1882.

Initially, we determine that the filing of a complaint for preliminary examination against defendant, in order to obtain a warrant for his arrest with respect to the 1984 Tolliver murder, did not trigger defendant’s sixth amendment right to counsel. The Illinois Supreme Court has specifically held that the filing of a complaint for preliminary examination does not activate an accused’s sixth amendment right to counsel, unless the record shows significant involvement by the prosecution in the filing of the complaint. (See People v. Hayes (1990), 139 Ill. 2d 89, 123-25, 564 N.E.2d 803; see also People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38; People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571; People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261.) In the case at bar, the record simply discloses that Detective Glynn filed a complaint for preliminary examination alleging that defendant had been involved in the 1984 Tolliver murder. There is nothing in the record to show significant prosecutorial involvement in the filing of this complaint. Consequently, we cannot say on this record that the filing of a complaint for preliminary examination gave rise to defendant’s sixth amendment right to counsel.

Similarly, the circumstance that defendant was named as respondent in the California extradition proceeding in order to cause his return to Illinois did not, in and of itself, cause the attachment of the defendant’s sixth amendment right to counsel. (See People v. Young (1990), 201 Ill. App. 3d 521, 531-33, 558 N.E.2d 1287, appeal allowed (1990), 135 Ill. 2d 565.) As the court noted in Young, “an extradition proceeding, unlike an arraignment, involves no inquiry into the guilt or innocence of an accused.” (201 Ill. App. 3d at 533.) An extradition proceeding is not considered a criminal proceeding per se. (Young, 201 Ill. App. 3d at 533; see also People v. Warner (1986), 146 Ill. App. 3d 370, 496 N.E.2d 1010, cert. denied (1987), 480 U.S. 938, 94 L. Ed. 2d 776, 107 S. Ct. 1586.) In addition, extradition is not deemed a “critical stage” in judicial criminal proceedings. (Young, 201 Ill. App. 3d at 533, citing United States ex rel. Calhoun v. Twomey (7th Cir. 1971), 454 F.2d 326.) In light of these considerations, defendant’s sixth amendment right to counsel was not activated by his extradition from California to Illinois. See also State v. Falcon (1985), 196 Conn. 557, 494 A.2d 1190; Utt v. State (1982), 293 Md. 271, 443 A.2d 582; Wertheimer v. State (Minn. 1972), 201 N.W.2d 383.

We also are not persuaded that the prosecution and conviction of defendant’s co-offender, Vincent Wade, should have triggered defendant’s sixth amendment right to counsel. Defendant claims that certain critical State evidence admitted in the trial of his co-offender also implicated defendant. (See Wade, 185 Ill. App. 3d 898.) Defendant argues that because of this incriminating evidence, it is apparent that the State’s Attorney could have sought defendant’s indictment prior to his return to Chicago, and that consequently, the State intended to prosecute defendant upon his arrival in this State. However, the circumstance that the State’s Attorney allegedly could have sought defendant’s indictment upon his return to Chicago does not dictate the conclusion that the State had definitely committed itself to prosecuting the defendant when he was brought back to this jurisdiction. We conclude that, on this factor alone, the State had not “crossed the constitutionally-significant divide from fact-finder to adversary” (United States ex rel. Hall v. Lane (7th Cir. 1986), 804 F.2d 79, 82-83) upon defendant’s arrival in Chicago on December 13, 1988. The prosecution and conviction of defendant’s co-offender did not, in and of itself, give rise to a sixth amendment right to counsel in defendant’s behalf.

In addition, we hold that the combination of factors upon which defendant relies was not sufficient to cause the attachment of his sixth amendment right to counsel upon his return for police questioning on December 13, 1988. The facts, as disclosed in the record before us, do not establish that the State’s Attorney’s office had committed itself to prosecuting defendant for the Tolliver murder when defendant was returned to Chicago in December 1988. In our view, the instant cause is factually similar to People v. Nally (1991), 216 Ill. App. 3d 742, 575 N.E.2d 1341. In Nally, the State’s Attorney’s office had been involved in presenting evidence to a grand jury for several months prior to defendant’s arrest. During this time, the State’s Attorney had also arranged for certain individuals to receive immunity from prosecution, and had prepared and filed documents to obtain eavesdrop authorization and a warrant for defendant’s arrest. Based on these circumstances, the defendant argued that the level of prosecutorial involvement was sufficient to activate his sixth amendment right to an attorney. See Nally, 216 Ill. App. 3d at 761.

The appellate court in Nally rejected the defendant’s argument, noting that he had not been indicted until approximately a week after he was arrested. The court also observed that under Illinois law, the State’s Attorney is responsible for initiating applications for the authorization of the use of eavesdropping devices, as well as commencing the process for the granting of witness immunity. The court characterized these activities as legitimate and statutorily authorized prosecutorial functions. The court noted that “for every act that, according to defendant, evidences excessive prosecutorial involvement, the police had a corresponding role” in obtaining the eavesdrop order and the warrant for the defendant’s arrest. (Nally, 216 Ill. App. 3d at 765.) The court concluded that “it is clear that this was not a case where the prosecution simply ran the entire investigation to the exclusion of the police.” Nally, 216 Ill. App. 3d at 765.

Similarly, in the instant cause, the record fails to disclose excessive or substantial prosecutorial involvement in the police investigation of defendant’s responsibility for the 1984 Tolliver murder. According to the record, the State’s Attorney in the case at bar questioned the defendant after he had given incriminating statements to Chicago police detectives following defendant’s return on December 13, 1988. The record does not establish any prosecutorial involvement in obtaining a warrant for defendant’s arrest, nor in causing his extradition from California to Chicago. Although the State’s Attorney prosecuted defendant’s co-offender, Vincent Wade, for the 1984 Tolliver murder, this was a legitimate prosecutorial function. (See Ill. Rev. Stat. 1987, ch. 34, par. 3 — 9005 (responsibility of State’s Attorney to prosecute alleged criminal activity).) Given all of these considerations, we cannot conclude that defendant’s sixth amendment right to counsel had arisen upon his return to Chicago on December 13, 1988, for police questioning regarding his involvement in the 1984 Tolliver murder. Accordingly, the trial court erred in its suppression of defendant’s incriminating statements to authorities.

II

We also conclude that, assuming arguendo that defendant’s sixth amendment right to counsel had arisen upon his questioning by authorities regarding the 1984 Tolliver murder on December 13, 1988, the defendant’s admonition and waiver of Miranda rights were sufficient to preserve his sixth amendment right to counsel.

In this respect, we find the United States Supreme Court’s decision in Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, particularly instructive. In Patterson, the defendant was indicted for murder. Before he was arraigned on the charges, defendant was questioned by police officers, waived his rights under Miranda, and gave incriminating statements regarding his involvement in the incident. Thereafter, also prior to arraignment, the defendant gave additional inculpatory statements to an assistant State’s Attorney.

The Supreme Court rejected the defendant’s claim that because his sixth amendment right to an attorney was triggered by indictment, the police were barred from questioning him with respect to the incident for which he had been indicted. In so ruling, the Court observed that the defendant had not previously sought to exercise his constitutional right to an attorney. The Court noted that an accused who has been indicted, but has not yet accepted counsel or invoked his right to an attorney, is in the same position as a “preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned.” Patterson, 487 U.S. at 291, 101 L. Ed. 2d at 271, 108 S. Ct. at 2394.

The Court in Patterson reiterated the reasoning of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct 1880, that once an accused has requested counsel, no further police questioning is permissible unless the defendant himself initiates further communication with authorities. (Patterson, 487 U.S. at 291, 101 L. Ed. 2d at 271, 108 S. Ct. at 1880, quoting Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 385-86, 101 S. Ct. at 1884-85.) According to the Court, the purpose of Edwards is to “¡p]reserv[e] the integrity of an accused’s choice to communicate with police only through counsel *** —not [bar] an accused from making an initial election as to whether he will face the State’s officers during questioning with the aid of counsel, or go it alone.” (Emphasis in original.) (Patterson, 487 U.S. at 291, 101 L. Ed. 2d at 271-72, 108 S. Ct. at 2394.) The Court determined that if a defendant “knowingly and intelligently” chooses to speak to authorities notwithstanding his right to counsel, “we see no reason why the uncounseled statements he then makes must be excluded at his trial.” (Patterson, 487 U.S. at 291, 101 L. Ed. 2d at 272, 108 S. Ct. at 2394.) In addition, the Court determined that an accused who has been indicted, but not yet arraigned and appointed counsel, may be properly questioned by police authorities upon admonition and waiver of the defendant’s Miranda rights. The Court reasoned that further admonitions to an indicted defendant were neither constitutionally required nor appropriate. Patterson, 487 U.S. at 292-300, 101 L. Ed. 2d at 272-77,108 S. Ct. at 2394-99.

In light of this reasoning in Patterson, we conclude that defendant’s admonition and waiver of his Miranda rights were sufficient protection of his sixth amendment right to an attorney, assuming arguendo that his sixth amendment right to counsel had arisen by the time he had been questioned by authorities on December 13, 1988, regarding the 1984 Tolliver murder. As in Patterson, the defendant in the instant cause had not previously invoked his constitutional right to an attorney. Assuming that his sixth amendment right to counsel had come into existence by the time he was questioned by authorities upon his return on December 13, 1988, the defendant was in no different position than the indicted defendant in Patterson, i.e., the defendant had not yet invoked or accepted his sixth amendment right to the assistance of an attorney. In these circumstances, the police officers’ provision of defendant’s Miranda rights, and his waiver thereof, were sufficient to protect defendant’s sixth amendment right to counsel. Accordingly, the trial court erred in its allowance of defendant’s motion to suppress the incriminating statements he made to authorities.

We note that the cases upon which defendant relies are factually distinguishable, as in each decision the defendant had accepted appointment of counsel at arraignment, and thereby invoked his sixth amendment right to an attorney prior to police questioning. See Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404; People v. Kidd (1989), 129 Ill. 2d 432, 544 N.E.2d 704; see also People v. Fleming (1985), 134 Ill. App. 3d 562, 480 N.E.2d 1221 (police continued interrogation in spite of defendant’s request for attorney).

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE McCORMICK

text:
    GREAT CENTRAL INSURANCE COMPANY, Plaintiff-Appellant, v. WASCOMAT OF AMERICA et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—90—1996
    Opinion filed August 25, 1992.

      Bresnahan & Garvey, of Chicago (Kenneth T. Garvey and Robert J. O’Connor, of counsel), for appellant.
    Coffield, Ungaretti, Harris & Slavin, of Chicago (J. Timothy Eaton and Daniel P. Albers, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, Great Central Insurance Company, sued for a declaratory judgment to determine its duty to defend under a general liability policy. The trial court found that plaintiff had a duty to defend John McDermott, an employee of the named insured, against a third-party claim for contribution, so the court entered summary judgment in favor of McDermott and denied plaintiff’s cross-motion for summary judgment. Plaintiff appeals the trial court’s ruling on the basis that (1) the liability insurance policy excludes coverage of third-party claims against insureds and their employees; and (2) the policy did not cover liability from an underlying claim based on bodily injury to an employee of the named insured.

For reasons discussed below, we find that the trial court’s rulings are correct and we affirm its decision.

In July 1988, Delores Murphy sued Wascomat of America, Washtown Equipment Company, A.B. Electrolux, CTC and Regina McDermott, Murphy’s employer, for injuries she suffered when a washing machine began operating while she was removing a blanket from the machine. The trial court in Murphy’s suit dismissed the claim against Regina McDermott. Murphy was acting in the course of her employment when she was injured. The Workers’ Compensation Act provided Murphy’s sole remedy against her employer. Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.

Wascomat, CTC and A.B. Electrolux filed a third-party complaint against John McDermott, alleging that he, as Regina McDermott’s employee, negligently failed to maintain the washing machine properly, and if the washing machine injured Murphy, his negligence proximately caused the injury. John McDermott tendered defense of the third-party claim to plaintiff, claiming coverage under a policy plaintiff issued to Regina McDermott. Plaintiff assumed defense of the suit under a reservation of right to contest coverage for John McDermott.

Plaintiff then brought this action for a judgment declaring that it had no duty to defend or indemnify John McDermott in the third-party suit. Plaintiff named as defendants all parties to Murphy’s suit against Wascomat and all parties to Wascomat’s third-party action against John McDermott.

The policy lists several exclusions in the section establishing coverage for business liabilities. Exclusion J specifically provides that the insured is not covered for

“injury to any employee of the Insured arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury.”

If Wascomat had sued Regina McDermott for indemnity or contribution, plaintiff would have had no duty to defend because exclusion J specifically denies coverage for such third-party actions for either contribution or indemnification. Midland Insurance Co. v. Bell Fuels, Inc. (1987), 159 Ill. App. 3d 780, 513 N.E.2d 1.

The insurance policy separately expands the persons insured under the policy, and in the section defining persons insured, sets forth the exclusions specifically pertinent to those persons, providing coverage in clause V(AX2) for

“any *** employee of the Named Insured while acting within the scope of his duties as such, but the insurance afforded to such employee does not apply:
a. to *** injury to another employee of the Named Insured arising out of or in the course of his employment.”

This clause, in language similar to exclusion J, provides that Regina’s employees are not covered for personal injury suits filed by another employee. Therefore, if Murphy had sued John McDermott directly, plaintiff would have no duty to defend or indemnify him. However, clause V(A)(2)(a) does not include language similar to the second part of exclusion J, which specifically excludes coverage for third-party suits.

Defendants moved for summary judgment based on this division’s interpretation of virtually identical insurance in Howalt v. Ohio Casualty Insurance Co. (1986), 142 Ill. App. 3d 435, 491 N.E.2d 1207. Although that decision did not discuss the language of exclusion J, defendant presented evidence that the policy at issue in Howalt included language virtually identical to exclusion J. The insurance company in Howalt apparently made no argument that exclusion J applied to defeat Howalt’s claim for coverage. The insurer relied solely on the language of the persons insured clause, which was virtually identical to clause V(A)(2)(a) here. This court in Howalt held that clause V(A)(2)(a) did not exclude coverage for third-party suits based on injury to a co-worker, and therefore, the insurer had a duty to defend its insured’s employee in a third-party action filed against that employee. Howalt, 142 Ill. App. 3d at 440-41, 491 N.E.2d at 1211.

Plaintiff contends that exclusion J applies to all insureds under the contract, including John McDermott. In all of the cases plaintiff cites, the insured’s injured employee sued another party who, in turn, sued the named insured, the employer, for contribution. (See Midland, 159 Ill. App. 3d 780, 513 N.E.2d 1; Unigard Insurance Co. v. Whitso, Inc. (1990), 195 Ill. App. 3d 740, 553 N.E.2d 59; Reliance Insurance Co. v. Nick J. Giannini, Inc. (1987), 158 Ill. App. 3d 657, 511 N.E.2d 755; Aetna Casualty & Surety Co. v. Beautiful Signs, Inc. (1986), 146 Ill. App. 3d 434, 496 N.E.2d 1229.) Defendants agree that exclusion J applies to preclude coverage for a third-party suit against the named insured, Regina McDermott, John McDermott’s employer. Plaintiff cites no case which determines whether a general exclusion applies in the face of a separate specific exclusion that repeats only one part of the general exclusion. This court in Howalt decided that the language plaintiff used in clause V(A)(2)(a) does not exclude coverage for third-party actions.

Plaintiff seeks to distinguish Howalt on grounds that in that case the insurer apparently conspired with the named insured to exclude coverage for insured’s employee. This court in Howalt did not mention collusion in its discussion of the meaning of the persons insured clause and its exclusions. While the court found the insurer estopped from contending that Howalt was not an employee of the named insured, it did not find the insurer estopped from denying coverage on the basis of policy exclusions.

However, plaintiff notes correctly that the insurance company in Howalt did not argue that the general exclusion clause, parallel to ex-elusion J in this case, precluded coverage for the third-party claim against insured’s employee. The Howalt court did not expressly interpret exclusion J and clause V(A)(2)(a) in light of each other.

Plaintiff contends that the Midland court resolved the apparent conflict between the clauses in distinguishing Howalt, as the court said:

“The exclusion at issue in Howalt, however, by its terms applied only to a claim by one employee against a fellow employee. There was no additional or alternative exclusion that denied coverage for contribution or indemnification claims asserted against a tortfeasor employee which arose out of an injury to a co-employee.” Midland, 159 Ill. App. 3d at 786, 513 N.E.2d at 4.

The distinction between exclusion J and clause V(A)(2)(a) drawn by the court in Midland is exactly the distinction upon which defendants rely. Clause V(A)(2)(a) excludes coverage for an employee liable to another employee for bodily injury; exclusion J, in similar language,, excludes coverage for the employer found liable to its employee for bodily injury, and then there is an “additional or alternative exclusion” of coverage for any obligation to indemnify any other party for damages arising out of injury to an employee.

Plaintiff claims that the Midland court meant that there was no pertinent “additional or alternative exclusion” anywhere in the contract at issue in Howalt, but plaintiff’s interpretation is not supported by the language of Midland. The Midland court could not have found anything in Howalt to establish that there was no other general exclusion clause in the contract at issue therein. Defendants here have shown that the insurance contract in Howalt actually included the general exclusion applied in Midland which plaintiff seeks to apply here. The Midland court decided only that the lack of an additional exclusion for indemnification within the clause directly pertinent to employees as persons insured, which was the clause at issue in Howalt, was sufficient to distinguish Howalt from Midland. The court in Midland held that exclusion J applies to exclude coverage for contribution claims brought against the employer; it did not decide whether the general exclusion applied to exclude coverage for contribution claims brought against an employee, when the exclusions specifically pertinent to employees did not exclude such coverage. Thus, neither the Midland court nor the Howalt court decided the precise question the parties have presented in this case.

Courts must construe insurance policies as a whole, to give effect to the intent of the parties, with the thought that the insured intended to obtain coverage. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1064, 419 N.E.2d 601, 603.) “Meaning and effect are to be given to all terms and provisions of a contract where possible. It is presumed that the provisions are purposefully inserted and that the language was not employed idly.” (Schmitt, 94 Ill. App. 3d at 1065, 419 N.E.2d at 603.) Any ambiguity in the insurance policy must be construed against the insurer. Standard Mutual Insurance Co. v. General Casualty Cos. (1988), 171 Ill. App. 3d 758, 525 N.E.2d 965.

Clause V(A)(2), which extends coverage to Regina McDermott’s employees, excludes coverage for suits brought by one employee against another, in language very similar to the first part of exclusion J. If exclusion J applies to all insureds, including Regina’s employees, there is no reason for including clause V(A)(2)(a) in the policy. In Home & Automobile Insurance Co. v. Scharli (1973), 10 Ill. App. 3d 133, 293 N.E.2d 914, the appellate court rejected the insurer’s interpretation of its policy because that interpretation rendered a clause redundant and superfluous. Neither in its briefs on appeal nor in its arguments to the trial court has plaintiff here suggested any possible meaning or purpose for clause V(A)(2)(a) on its interpretation of the policy.

We find that the trial court properly reconciled exclusion J and clause V(A)(2)(a), making both clauses meaningful. Since the policy, in its exclusions specifically pertinent to the insured’s employees, indicated that plaintiff would not cover suits brought by co-workers, but made no reference to third-party suits for indemnification based on injuries to co-workers, the insurance policy does not exclude coverage for the third-party action Wascomat brought against the named insured’s employee, John McDermott. The trial court correctly found that plaintiff has a duty to defend John McDermott against Wascomat’s lawsuit, and therefore, we affirm the trial court’s judgment dismissing plaintiff’s suit for declaratory judgment.

Affirmed.

SCARIANO and DiVITO, JJ., concur.


author: JUSTICE HAASE

text:
      In re MARRIAGE OF JERROLD C. WILLIS, Petitioner-Appellee, and RUTH ANN WILLIS, Respondent-Appellant.
    Third District
    No. 3—91—0241
    Opinion filed September 3, 1992.

      Claudon, Lloyd, Barnhart & Beal, Ltd., of Canton (Gary E. Barnhart, of counsel), and Vonachen, Lawless, Trager & Slevin, of Peoria (John R. Pusey, of counsel), for appellant.
    Dean A. Stone and Flack, McRaven & Stephens, both of Macomb (James P. Murphy, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The petitioner father, Jerrold C. Willis, and the respondent mother, Ruth Ann Willis, had their marriage dissolved on July 18, 1989. The trial court awarded custody of the parties’ two minor children to Jerrold. Ruth Ann appeals from that custody determination.

The record shows that the parties were married in 1981. They had two minor children bom during the marriage, Joshua and Andrea. Jerrold also had a son from a prior marriage bom in 1973.

Jerrold introduced into evidence a day-in-the-life video. It depicted Jerrold, his two children, and Mace, during visitation pursuant to the trial court’s temporary custody order. Jerrold also introduced into evidence a videotape of Andrea shortly after she had been with Ruth Ann, in which Andrea stated that she hated Mace and would like to cut her head off.

At the time of the hearing on the custody petition, Jerrold was employed as a radiologist. His hours were from 8:30 a.m to 5 p.m., and he was on call approximately 17 weekends a year. In February of 1988, Jerrold told Ruth Ann that he wanted a divorce. At that time, Jerrold had a girlfriend, Debbie Mace. Thereafter, the parties separated.

After the parties’ separation, Ruth Ann attended an eating disorder clinic at St. Francis Hospital. There, Kay Kaufman and Dr. Eckerd evaluated her. A battery of tests indicated that Ruth Ann did not need psychiatric counseling for a personality disorder and did not have an eating disorder or anorexia. However, the tests indicated that she had a drive for thinness and mild to moderate depression. Kaufman met with Ruth Ann for five months. During that time, her lowest weight was 114 pounds, while her ideal weight was 123 pounds. It was Kaufman’s opinion that Ruth Ann did not have any problems that would effect her relationship with her children.

Dr. Ronald Krager testified that current research shows that weight loss below 15% indicates anorexia nervosa. Many anorexics fully recover and thereafter are effective in their work and homelife. Dr. Krager further noted that anorexics are often misdiagnosed as having personality disorders.

The parties agreed to select Dr. Richard Grant as an “unbiased medical professional” to psychologically evaluate the parties and help assist the court. Dr. Grant evaluated Ruth Ann and found that she exercised six hours a day during the marriage, and in order to do so, she had other people watch her children. Dr. Grant also reviewed Ruth Ann’s hospital records. Grant testified that although he had arrived at a psychiatric diagnosis of Ruth Ann, he did not put one in a written report. He opined that Ruth Ann was suffering from a long-term personality disorder that would not likely respond to treatment. He further stated that she was suffering from anorexia nervosa. Ruth Ann objected to that testimony, contending that since Dr. Grant’s written report did not indicate that he had made a diagnosis, he was not able to testify as an expert witness as to such diagnosis. The trial court overruled the objection. Dr. Grant concluded that Jerrold was more emotionally stable to care for the children and should be granted custody.

Dr. Leon Jackson testified about a Minnesota Multiphasic Personality Inventory (hereinafter referred to as MMPI) profile of Ruth Ann contained in her hospital records dated April 7, 1988. He also testified about what the mental condition would be of a person who had an MMPI like Ruth Ann’s. Ruth Ann objected to the testimony on the basis that Dr. Jackson was not presented under Supreme Court Rule 220 (134 Ill. 2d R. 220) as an expert witness who would give an opinion about her MMPI. Ruth Ann also pointed out that pursuant to an agreement by the parties, Dr. Jackson was an expert retained to represent Jerrold and the children, while she retained her own expert to examine her and the children. The court allowed Dr. Jackson to testify on rebuttal as to the MMPI and gave Ruth Ann’s attorney the opportunity to examine or depose Jackson prior to that testimony.

On appeal, Ruth Ann first argues that the trial court erred in allowing into evidence the day-in-the-life video. While she acknowledges that the Illinois Supreme Court recently held in Cisarik v. Palos Community Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873, that such evidence is admissible in the context of a personal injury case, she contends that a different rule should apply in a child custody proceeding. She maintains that the video distorted the procedure by which the trial judge may interview children in camera during the course of a custody proceeding.

Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that the trial court may interview a child in chambers to ascertain his wishes as to custody and visitation. (Ill. Rev. Stat. 1989, ch. 40, par. 604(a).) It has been held that there is no absolute right to present a child’s testimony during a custody proceeding, and, when that testimony is presented, it is left to the trial court’s discretion whether to receive it from the witness stand or in camera. (In re Marriage of Theeke (1981), 105 Ill. App. 3d 119, 433 N.E.2d 1311.) The scope of inquiry of an in camera interview is also a matter largely within the trial court’s discretion. See In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811.

Section 604(a) of the Act further requires that counsel be present during the in-chambers interview unless otherwise agreed upon by the parties. (Ill. Rev. Stat. 1989, ch. 40, par. 604(a).) The right of counsel to be present given by section 604 is intended to assure fairness in the interview; the added protection afforded to the litigants by the presence of counsel permits the court to exercise considerable discretion in setting the scope of the interview in order to best determine the child’s intelligence, understanding, and basis for any preference for a custodian. Fohr v. Fohr (1979), 75 Ill. App. 3d 575, 394 N.E.2d 87.

Applying the above-mentioned principles, we find that the trial court erred in admitting the videotape into evidence. Cisarik v. Palos Community Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873, does not apply here. In the context of a child custody proceeding, the legislature has specifically provided that children’s testimony be taken either in open court or by means of an in camera interview with the presence of counsel. This statutory framework demonstrates the legislature’s overriding concern for protecting the welfare of children. Accordingly, we disapprove of the practice of videotaping children. It is error for the court to allow it. Such a procedure is fraught with the potential for great abuse and damage to the lives of young children. We further find, however, that under the circumstances of the present case, the error in the admission of the videotape does not require reversal, since it did not adversely affect the outcome of the case. A review of the record amply supports the trial judge’s decision. In a case in which the use of the videotape did adversely affect the outcome of the case, we would not hesitate to reverse and remand. We state in the strongest possible terms that the procedure of using day-in-the-life videotapes of young children in child custody proceedings must not be allowed.

. Ruth Ann next argues that the trial court committed reversible error when it allowed into evidence Dr. Grant’s diagnosis about Ruth Ann’s mental condition. She contends that the testimony violated Supreme Court Rule 220 because the diagnosis was not included in the doctor’s written report.

The relevant portion of Supreme Court Rule 220 provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d R. 220(d).

It appears to the court that the testimony of Dr. Grant and Dr. Jackson is really a failed attempt to utilize section 605 of the Illinois Marriage and Dissolution of Marriage Act. “The court may order an investigation and report concerning custodial arrangements for the child. *** (b) In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodial arrangements. Under order of the court, the investigator may refer the child to professional personnel for diagnosis. *** (c) *** Any party to the proceeding may call the investigator, or any person whom he has consulted as a court’s witness, for cross-examination.” (Ill. Rev. Stat. 1989, ch. 40, par. 605.) While the requirements of section 605 were not complied with in this case, it appears to this court that the parties were attempting to have the kind of neutral investigator and expert witness that is contemplated by section 605. While again we do not approve of the procedure used in this case, we find that it did not adversely affect the outcome of the proceedings and was a failed attempt of the parties to use section 605.

In the case sub judice, the parties agreed to utilize Dr. Grant as “an unbiased medical professional” to psychologically evaluate the parties. Given the parties’ agreement, we find no Rule 220 violation regarding Dr. Grant’s diagnosis testimony. Moreover, we find that even if the trial court erred with respect to allowing Dr. Grant’s testimony, Ruth Ann has failed to establish that she was prejudiced. It is well settled that a reviewing court will not disturb a trial court’s decision unless the party asserting the error clearly demonstrates that he was prejudiced. (Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 514 N.E.2d 532.) Furthermore, error in the admission of evidence does not require reversal if the evidence does not materially affect the outcome. Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 514 N.E.2d 532.

Ruth Ann next argues that the trial court erred in allowing into evidence Dr. Jackson’s testimony about Ruth Ann’s MMPI profile. She contends that the doctor’s testimony about the MMPI should have been excluded because it was not disclosed in his written report and the parties had an agreement that he would evaluate only Jerrold.

We note that the trial court specifically ruled that it would not take into consideration the doctor’s interpretation of Ruth Ann’s MMPI. Instead, it noted that it would only consider general information about the MMPI test, since the MMPI test had been mentioned elsewhere in the testimony. The court also gave Ruth Ann’s counsel an opportunity to depose Dr. Jackson before allowing the complained-of testimony. Under the circumstances, we find that even if the trial court erred in admitting the evidence, it does not require reversal since no prejudice resulted.

Lastly, Ruth Ann argues that the trial court’s decision to award Jerrold custody was against the manifest weight of the evidence. In essence, she claims that she was the children’s “psychological parent” and that her purported mental health problems were exaggerated.

A trial court’s custody decision will not be reversed unless there has been a clear abuse of discretion or the decision was contrary to the manifest weight of the evidence. (In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086.) Furthermore, it is well settled that in cases regarding custody, there is a strong and compelling presumption in favor of the result reached by the trial court. (In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 487 N.E.2d 739.) The trial court is vested with great discretion because of its superior opportunity to observe witnesses, evaluate the evidence, and determine the best interests of the child. Lloyd v. Lloyd (1980), 92 Ill. App. 3d 124, 415 N.E.2d 1105.

The custody decision in this case is governed by section 602 of the Illinois Marriage and Dissolution of Marriage Act. That section of the statute sets forth the factors for making the child custody determination. Based on our review of the record, it appears that the trial court evaluated the testimony before it pursuant to section 602, the best interests of the child, that the court followed the factors and that there was adequate evidence in the record to support the trial court’s findings.

In the instant case, the trial court specifically found that Dr. Grant’s testimony was entitled to the most weight. Dr. Grant testified that Jerrold was more emotionally stable than Ruth Ann and that he should be granted custody. Since the trial court was in a better position to evaluate all the evidence and determine the credibility of the witnesses, we are unable to say that its decision was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of McDonough County is affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.