text:
    NICHELLE CATO, by her Mother and Next Friend, Regina Cato, Plaintiff-Appellant, v. ADNAN ATTAR, Defendant-Appellee.
    Second District
    No. 2 — 90—1058
    Opinion filed March 27, 1991.

      Cynthia L. Chase, John C. Mullen, and Mary R. Minella, all of Mullen, Minella & Chase, of Chicago, for appellant.
    George E. Riseborough and Thomas K. Gerling, both of Brydges, Rise-borough, Morris, Franke & Miller, of Waukegan, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Nichelle Cato, through her mother and next friend, Regina Cato, appeals from an order of the trial court denying her motion for leave to file an amended complaint and dismissing her complaint with prejudice. Plaintiff argues the trial court’s decision was an abuse of discretion. We reverse and remand.

On March 22, 1990, plaintiff filed a complaint through her mother and next friend, Regina Cato, against defendant, Dr. Adnan Attar, for medical malpractice which allegedly occurred during plaintiff’s birth. Plaintiff did not attach an affidavit or written report to her complaint as required by section 2 — 622 of the Illinois Code of Civil Procedure (Code) (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622). On May 9, defendant filed a motion to dismiss the complaint due to the failure to attach the affidavit or report to the complaint. On May 18, plaintiff filed a motion for leave to file an amended complaint instanter. The amended complaint had an affidavit and written medical report attached to it.

On June 8, the court conducted a hearing on plaintiff’s motion for leave to file an amended complaint and defendant’s motion to dismiss. The court denied plaintiff’s motion to file an amended complaint and granted defendant’s motion to dismiss with prejudice. Plaintiff filed a motion to reconsider, and on August 28, the court denied the motion. Plaintiff appeals from the trial court’s orders of June 8 and August 28.

We initially note defendant has filed a motion to strike certain portions of plaintiff’s statement of facts alleging violations of Supreme Court Rule 341(e)(6). (134 Ill. 2d R. 341(e)(6).) This court ordered the motion to be decided with the merits of the case. We agree with defendant and grant his motion to strike. The improper factual statements have not been considered by this court.

Section 2 — 622 requires a plaintiff to attach an affidavit of merit and a written report from a health professional to any complaint for medical malpractice. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 622(a)(1).) Failure to comply with this requirement is ground for dismissal under section 2 — 619 of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(g).) Plaintiff admits that she did not comply with the above requirements when she filed her complaint.

The clear purpose of section 2 — 622 is to deter the filing of frivolous medical malpractice lawsuits and insure the meritoriousness of those cases which are filed. While section 2 — 622 allows the court to dismiss a complaint for failure to comply with its mandates, it does not require dismissal with prejudice. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93.) A party who fails to comply with section 2— 622 may be granted leave to amend its pleadings to cure the defect, or the court may dismiss the complaint with or without prejudice. The determination of whether to allow amendment or to dismiss depends on the facts and circumstances of each case. (Alford v. Phipps (1988), 169 Ill. App. 3d 845, 855.) The trial court’s choice of one of the above options is within its sound discretion. (McCastle, 121 Ill. App. 3d at 194.) The trial court’s decision will not be overturned absent an abuse of discretion. (Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 951.) However, it must be noted that amendments to medical malpractice pleadings should be liberally allowed to enable the case to be decided on its merits rather than on procedural technicalities. Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.

In the case at bar, plaintiff’s initial complaint was filed on March 22, 1990, and admittedly did not comply with the requirements of section 2 — 622. In the face of a motion to dismiss, plaintiff sought to cure the defect in her pleading by attempting to file an amended complaint on May 18 (approximately 57 days after filing her initial complaint). The statute itself allows for affidavits of merit to be filed 90 days after the filing of the complaint in some circumstances. (See Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 622(a)(2), (a)(3).) While we note the case at bar does not exhibit the circumstances set forth in the statute for late filing, we acknowledge the legislature’s determination that the concurrent filing of an affidavit of merit and a complaint is not imperative in all cases. “[T]he absence of the affidavit at the time of filing does not strike the death knell for a medical malpractice claim.” Walter v. Hill (1987), 156 Ill. App. 3d 708, 710.

This court has held that a trial court may consider whether there was a showing of good cause for failure to timely file section 2 — 622 documents in deciding if late filings should be allowed. (See Premo v. Falcone (1990), 197 Ill. App. 3d 625, 633.) In the case at bar, plaintiff’s noncompliance with section 2 — 622 was based upon plaintiff’s reliance on a first district case, DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, which held the requirements of section 2 — 622 to be unconstitutional. This court had, prior to DeLuna, determined the statute to be constitutional (see Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79) and has since confirmed this position. (See Premo, 197 Ill. App. 3d at 633.) Defendant contends plaintiff’s reliance on an out-of-district appellate court opinion that was contrary to a prior opinion rendered by this court did not establish good cause for the late filing of the affidavits and medical report.

In Premo, we affirmed the dismissal of a malpractice complaint with prejudice for failure to comply with section 2 — 622. (Premo, 197 Ill. App. 3d at 633.) We noted the plaintiff’s failure to present any evidence of good cause for untimely filing. (Premo, 197 Ill. App. 3d at 631; see also Batten v. Retz (1989), 182 Ill. App. 3d 425, 430 (court acted within its discretion in considering lack of any showing of good cause for late filing and in dismissing complaint with prejudice).) While we do not condone incomplete research by an attorney, in this case, plaintiff did present current Illinois case law supporting its lack of compliance. Additionally, plaintiff attempted to comply with section 2 — 622 within 10 days of becoming aware of this court’s contrary interpretation of the statute and within 60 days of the filing of her complaint. There is no indication of bad faith or an intent to frustrate justice by plaintiff. We can discern no prejudice that would have inured to defendant if the court would have either allowed amendment or dismissed the complaint without prejudice. As previously noted, medical malpractice cases should be determined on the merits when at all possible.

Based upon the facts and circumstances of this case, we determine the trial court abused its discretion in not allowing plaintiff to amend her pleadings and in dismissing plaintiff’s complaint with prejudice.

Defendant argues that, even if the trial court erred in dismissing the complaint for failure to attach the required affidavit and medical report, this court should affirm the trial court due to the insufficiency of the proposed amendments. The determination of the sufficiency of the documents required by section 2 — 622 is a determination to be made initially by the trial court. (See Alford, 169 Ill. App. 3d 845.) The record reflects the trial court in this case did not determine the sufficiency of the affidavit and the medical report. We defer to the trial court on this issue.

For the reasons stated above, the judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

BOWMAN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD NICHOLL, Defendant-Appellant.
    Second District
    No. 2 — 89—0278
    Opinion filed March 21, 1991.
    — Rehearing denied April 25,1991.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Donald Nicholl, appeals from his conviction of aggravated criminal sexual abuse. Defendant contends: (1) the court erred in admitting the testimony of two witnesses not listed in discovery; (2) the court erred by not allowing evidence of a subsequent false accusation and evidence of the possibility of a different perpetrator of the abuse; (3) he was not proved guilty beyond a reasonable doubt; and (4) the court erred by ordering the defendant to pay the victim’s mother’s attorney fees in connection with a petition to change the visitation rights of her ex-husband, who lived with defendant. We affirm in part, reverse in part, and remand.

Defendant was charged with aggravated criminal sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(c)(1).) The information alleged that “defendant intentionally touched the breasts of the victim for the purpose of sexual gratification.” A hearing was held pursuant to which the victim, five-year-old J.C., was found to be competent to testify at trial.

J.C. lived with his mother, Julie, and her husband, Doug. The defendant lived with J.C.’s father and Julie’s ex-husband, Edward. The alleged incident of abuse occurred on July 11, 1987, during a period of scheduled visitation as set forth in Julie’s and Edward’s divorce decree.

At trial, J.C. testified that defendant “sucked to my boobies.” J.C. stated he was watching Donald Duck on television when the incident occurred. J.C. also stated defendant touched and sucked J.C.’s penis. Using anatomically correct dolls, J.C. demonstrated the actions which he testified to. J.C. stated the only thing his mother told him was to tell the truth. J.C. also denied that Doug told him what to say to the judge.

On cross-examination, J.C. testified Edward was not his father. J.C. stated the alleged incident of abuse took place while he was watching television and Edward and Erica, Edward’s girlfriend, were sleeping. J.C. further testified the incident began at 12:27 and concluded at 9:30. J.C. stated Edward did not witness the incident. J.C. also stated the incident occurred on a Tuesday. (July 11, 1987, was a Saturday.)

J.C. further testified he had lunch and dinner at his mother’s house on the day of the incident. J.C. also stated he went swimming at his grandmother’s house on that day. J.C. stated that he was at his grandmother’s “sometime around daytime or nighttime.”

J.C. testified he had never met defense counsel before although it is apparent from the record he had. Initially, J.C. denied talking to the police about the incident but later admitted he had. J.C. acknowledged he told the police the incident occurred during the day and defendant did not have any clothes on at the time. J.C. also remembered telling the police Edward witnessed the incident and Edward killed defendant. J.C. admitted this did not actually happen.

The State then called Pat Graham-Toohey as a witness. Defendant objected on the basis Graham-Toohey was not included as a witness in responses to discovery. The court allowed defendant to speak to Graham-Toohey over the lunch break. The court then permitted GrahamToohey to testify as a corroborative complaint witness.

Graham-Toohey testified she has been employed by the Family Advocate for 11 years. She stated she interviewed J.C. on four separate occasions. During each interview, J.C. told Graham-Toohey someone had sucked his “boobies” and played with his penis. On cross-examination Graham-Toohey acknowledged J.C. never indicated when these alleged incidents occurred.

Ronald Kestner, a special agent with the Illinois State Police, also testified he had interviewed J.C. Kestner stated J.C. told him someone had sucked hard on his nipples and penis. Kestner also testified J.C. indicated the incident occurred while he was in his father’s bed watching television.

Sidella Hughes, an investigator with the Department of Children and Family Services (DCFS), testified she interviewed J.C. on July 14, 1987. Hughes stated J.C. told her someone sucked his “boobies” and hair. In a subsequent interview 90 minutes later, J.C. stated someone had also sucked his penis. Hughes further testified J.C. told her Edward witnessed this incident.

Carl Pool, a DCFS employee, was also a witness the State failed to list in discovery but called at trial. Defendant was given an opportunity to speak with Pool prior to his testimony. Pool testified he also participated in the investigation of the alleged abuse. J.C. told Pool a man had sucked his “boobies” and penis. Pool also testified J.C. indicated Edward had observed the sexual activity, slammed defendant’s head against the wall, and kicked defendant out of the house.

Doug, J.C.’s mother’s husband, testified that when J.C. returned home from Edward’s, J.C. complained his legs and “boobies” hurt. J.C. seemed most concerned with his legs. While bathing the next morning, J.C. again complained his “boobies” hurt. At that time, Doug noticed J.C.’s nipples were skinned and red. J.C. then told Doug defendant had sucked his “boobies.” After lunch, Doug suggested to J.C.’s mother that DCFS should be contacted.

Julie, J.C.’s mother, testified that, on July 10, 1987, Edward, Julie’s ex-husband, picked up J.C. for a weekend visit. Edward brought J.C. home Sunday evening at approximately 8:30. Julie slated J.C. was very tired, and she carried him into the house. J.C. sat down on the floor and showed her some bruises on his legs. Julie testified J.C. told her Edward had kicked him in the legs. J.C. also briefly complained his chest hurt. Later that night, J.C. had fallen asleep in the car while returning home from getting ice cream. Julie carried J.C. into the house and undressed him to get him ready for bed. She left the lights off so as not to wake J.C. Julie dressed J.C. in his pajamas. J.C. woke up and asked Julie to read him a story, which she did.

The following morning, Julie got J.C. ready for a bath. She noticed J.C.’s nipples were swollen, red, bruised and had dried blood on them. J.C. told Julie his nipples hurt and defendant had sucked on them. Julie testified she discussed this allegation with Doug and then went to work. She returned home at lunch and called the child abuse hotline. The next day a representative of DCFS returned her call, and she met with Sidella Hughes at Doug’s grandmother’s home. Later, she went to a DCFS office so J.C.’s nipples could be photographed. Julie testified J.C. then spoke to Agent Kestner and Dr. Baptist. Both of these individuals told Julie they thought it was a case of sexual abuse.

Julie denied causing the injuries to J.C.’s nipples. Julie also testified she did not tell J.C. what to say in court but only to tell the truth.

On cross-examination, Julie acknowledged she waited six hours after J.C. had told her about the alleged abuse to call DCFS. Julie admitted J.C. spent the morning alone with Doug. Julie also testified she had an appointment with her doctor that evening and, while she brought J.C. with her to that appointment, she did not ask her doctor to examine J.C.’s nipples.

Julie testified Edward and defendant lived together prior to her marriage to Edward, and she did not like the arrangement. Julie acknowledged she had made two previous complaints to DCFS concerning abuse. She also complained to the court previously about Edward’s violation of a court order. Julie denied these complaints were an attempt to gain an advantage in limiting Edward’s visitation rights.

Dr. Erroll Baptist testified he examined J.C. on July 14, 1987. Dr. Baptist stated he was aware there was a possibility of abuse prior to conducting the examination. Julie and Dr. Baptist’s nurse were present during the examination. Dr. Baptist. testified J.C.’s breasts were enlarged, swollen and discolored. A further examination with a magnifying glass disclosed dried blood in the cracks of J.C.’s nipples. Dr. Baptist estimated the injury to J.C.’s breasts had not occurred within 24 hours of the examination, but it had occurred within four or five days of the exam. J.C. told Dr. Baptist defendant had touched J.C. on the penis and “boobies.” Dr. Baptist opined J.C. had been sexually abused. Dr. Baptist was shown an inner tube used by J.C. while swimming, and Dr. Baptist stated it was very unlikely the tube caused J.C.’s injuries.

On cross-examination, Dr. Baptist stated the injuries could have been inflicted within 36 to 48 hours of his examination. Dr. Baptist also stated J.C. would have been in pain at the moment the injury occurred or shortly thereafter.

The State then rested its case.

Erica Erickson testified for defendant. She stated she was living with Edward and defendant during the relevant time period. She testified she returned from work at approximately 10:45 p.m. on July 10, 1987, and J.C., Edward and defendant were all there. J.C. was asleep in Edward’s bedroom. On Saturday, July 11, Erica made J.C. breakfast, and J.C. watched television in the living room. Erica and Edward played with J.C. that morning. J.C. did not tell Erica his chest or anything else hurt. Erica testified defendant returned from work at approximately 1:30 and took a shower. Edward’s brother Bob arrived at approximately 2:15, and Erica left for work one hour later. Erica testified she did not observe any sexual contact between J.C. and defendant that afternoon.

Erica testified she arrived home from work at approximately 10:45 p.m. and observed J.C. and Edward sleeping in Edward’s bedroom. Defendant was sleeping in- another bedroom. Erica went to sleep on the couch. Erica awoke at approximately 8:30 and drank coffee with defendant until he went to church at approximately 9 a.m. J.C. and Edward were watching cartoons on television. Erica testified defendant returned from church at approximately 10:45, and then everyone watched television. Erica stated she did not see J.C. have any physical contact with defendant during this time.

Erica further testified that J.C. and Edward left at approximately 12 noon and went to a movie. They returned at approximately 4 p.m. Erica and Edward then took J.C. to play.miniature golf. She and Edward returned J.C. to his mother at approximately 7 p.m. Erica testified J.C. appeared to be happy when he got out of the car.

Erica further testified she observed J.C.’s chest while he was playing in the yard on July 11, and she did not see any swelling, bruising or blood. She did not observe any sexual contact between J.C. and the defendant and did not see Edward hit the defendant during the weekend.

Robert C., Edward’s brother, also testified for the defendant. Robert stated that he visited his brother on July 11, arriving at approximately 1:30 p.m. He remained at Edward’s home until approximately 4:30. Robert testified he did not observe any sexual abuse. He further stated he did not see Edward strike defendant or kick him out of the house. Robert stated he observed J.C. without his shirt on and did not see any bruising or swelling in the breast area. Robert testified J.C. appeared to be having fun throughout the day.

Mary C., Edward’s stepmother and J.C.’s step-grandmother, testified she saw J.C. on July 11. J.C. came over with Edward and defendant to swim and eat dinner. J.C. was wearing a swimsuit. J.C. swam and used an innertube. Mary testified the innertube had tape over the valve so it would not scratch the user. While helping J.C. take the innertube off, she observed his bare chest and did not see any marks, blood, bruising or swelling. Mary also stated J.C. was in a fantastic mood. She testified she did not observe any sexual contact between J.C. and defendant.

Jamie Carroll and Albert C. were also present at the pool on July 11. Both witnesses testified they did not observe defendant sexually abuse J.C.

Edward testified he picked up J.C. for visitation on July 10, 1987.

They returned home at approximately 9 p.m. and watched television. Edward denied defendant was in the room where J.C. was sleeping or had any contact with J.C. that night.

Edward testified defendant was not home when J.C. and Edward awoke the next morning. Edward testified defendant returned home from work at approximately 1:30 p.m. At approximately 4:15, the group went to Edward’s father’s home to go swimming. Edward observed no unusual marks on J.Ci’s nipples when putting J.C.’s shorts on. Edward identified the innertube J.C. was using that day. Edward did not observe any sexual contact between J.C. and defendant that day. Edward testified that he, J.C. and the defendant returned home at approximately 10 p.m. They all went to bed immediately.

Edward testified the next morning when he and J.C. awoke, Erica and defendant were already awake. Erica fixed breakfast while defendant prepared to go to church. Defendant returned from church at approximately 11 a.m. Edward testified he took J.C. to get a hamburger, and then they went to a movie. Edward and J.C. returned home at approximately 3 p.m. Edward testified that he, J.C. and Erica then went to play miniature golf. Edward testified he and Erica drove J.C. back to Julie’s home, arriving at approximately 7 p.m. Edward denied having a physical confrontation with defendant or throwing him out of the house.

Defense counsel then asked Edward where he was on Thanksgiving Day 1987. The State objected, arguing this information was irrelevant. The court sustained the objection but allowed the defendant to make an offer of proof. The offer of proof established Edward was with J.C. at all times, and defendant had absolutely no contact with J.C. on that day.

Another offer of proof was placed in the record showing that, if allowed, Edward would testify Julie had threatened defendant with retribution on numerous occasions.

Judith Free, a DCFS employee, testified she interviewed J.C. on December 4, 1987, pursuant to a complaint of sexual abuse. The incident allegedly occurred on Thanksgiving Day in 1987. When asked to reveal what J.C. told her during her interview, the State objected, claiming the testimony was irrelevant. The court sustained the objection, and the defendant made an offer of proof. The offer of proof indicated, if allowed to testify, Free would state she determined the complaint was unfounded. She based her finding on the fact J.C. repeatedly stated in the interview his mother had told him what had taken place. J.C. had no independent recollection of the alleged incident.

Rebecca Gordon, an employee of the Family Service Agency, was present during a conversation between defense counsel and J.C. on January 30, 1988. Gordon testified J.C. told defense counsel the alleged incident took place at Grandma Mary’s pool. J.C. specifically denied the incident took place at Edward’s home. J.C. also stated the incident occurred during the daytime. Gordon testified J.C. stated Edward saw the defendant performing the sexual act and asked defendant to get out of the house.

Dr. Edward Hirsch testified he examined Dr. Baptist’s report regarding the alleged incident. Dr. Hirsch opined that, based upon Dr. Baptist’s report, J.C.’s injuries must have occurred within 24 hours of Dr. Baptist’s examination. Dr. Hirsch opined it is possible but unlikely the injuries occurred up to 36 hours prior to the examination, and it was impossible the injuries were sustained more than 48 hours prior to Dr. Baptist’s examination. This opinion was based upon the lack of any notation indicating bruising of the nipples. Dr. Hirsch testified if there was enough force to create an injury visible more than 36 hours later, there would have to be bruising of the chest in addition to the redness and swelling noted.

Defendant testified he was living with Edward and Erica during July of 1987. His testimony concerning the events of the weekend of July 10 was consistent with the other witnesses. Defendant denied having any contact of a sexual nature with J.C. during the weekend. Defendant also denied he had any sort of physical confrontation with Edward during the weekend. Defendant also denied seeing J.C. on Thanksgiving Day in 1987. Defendant further testified Julie had told him numerous times she would “get him.”

In rebuttal, Robert Hollenbeck, also a DCFS employee, testified he interviewed J.C. on September 7, 1986. This interview was in response to an allegation of sexual abuse. J.C. told Hollenbeck the abuse had occurred during the previous day at his father’s home. J.C. was not specific as to who committed the act of abuse, and Hollenbeck acknowledged the outcome of the investigation was that the allegation was unfounded.

Closing arguments were heard, and the court found defendant guilty.

On August 11, 1988, the court conducted a hearing on defendant’s motion for a new trial. The court denied defendant’s motion. The court then heard testimony regarding sentencing. The court sentenced defendant to a three-year term of probation and imposed a $3,500 fine plus costs. The court also ordered defendant to pay restitution to Julie including $750 in attorney fees expended by Julie to contest the visitation rights of Edward based upon this incident.

On October 5, 1988, the court conducted a hearing on defendant’s motion to reconsider. In this motion, defendant objected to, inter alia, the restitution order. Julie testified as to attorney fees she incurred subsequent to the sexual abuse allegations due to her attempt to change her visitation agreement with Edward. The court modified the restitution order to $1,000 for legal services rendered by attorney Nancy Mindrup in connection with the sexual abuse of J.C. Defendant timely appeals.

We first address defendant’s contention the court erred by allowing Graham-Toohey and Pool to testify after it was established they were not included on the witness list provided by the State. Defendant argues their testimony was cumulative.

It is within the trial court’s discretion to allow an unlisted witness to testify at trial. (People v. Zarebski (1989), 186 Ill. App. 3d 285, 290.) An abuse of discretion occurs when the record demonstrates the defendant was surprised or prejudiced by the testimony. (Zarebski, 186 Ill. App. 3d at 290.) The defendant has the burden of establishing surprise or prejudice. Zarebski, 186 Ill. App. 3d at 290.

In the case at bar, the trial court gave the defendant the opportunity to interview both of the unlisted witnesses once it was learned they would be called to testify. Defendant did so and was able to determine the nature of their testimony. The testimony consisted of recounting what J.C. had told each witness shortly after the alleged incident took place. The testimony was similar to other evidence presented, and defendant was able to fully cross-examine each witness. Defendant has not established he was prejudiced by the nondisclosure of the witnesses prior to trial. The court did not abuse its discretion in allowing Graham-Toohey and Pool to testify.

Defendant also claims the court erred by allowing the details of J.C.’s complaints to be recounted by the corroborative complaint witnesses. The State counters by claiming that the statute in effect at the time of trial allows such details to be admitted.

The version of section 115 — 10 of the Code of Criminal Procedure of 1963 in effect at the time of trial clearly allows a witness to testify to details of any complaint made by the 'victim. (See Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(a)(2).) This court has agreed with the State’s argument holding that section 115 — 10 concerns trial procedures rather than substantive matters, and, therefore, the more recent version of the statute applies at trial. (People v. Priola (1990), 203 Ill. App. 3d 401, 417-18.) The court did not err by allowing the various witnesses to testify as to the specifics of what J.C. told them.

Defendant next contends the court erred by not allowing testimony concerning a subsequent complaint of abuse by J.C. against defendant that was determined to be unfounded. Defendant argues this evidence was relevant and admissible. The admissibility of evidence is within the trial court’s discretion, and its decision will not be disturbed absent an abuse of discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56.

Defendant cites People v. Gorney (1985), 107 Ill. 2d 53, in support of its position. In Gorney, the defendant was charged with attempted rape and sought to introduce evidence concerning a prior false accusation of rape by the complainant. The court stated that “[ejvidence of prior false accusations of rape by the victim may be admissible, *** a trial judge might have considered the testimony relevant and probative.” (Gorney, 107 Ill. 2d at 61.) The court concluded that, if the omission of such evidence was error, it was harmless given the other evidence presented establishing the defendant’s guilt. Gorney, 107 Ill. 2d at 61.

We first note that the case at bar involves a subsequent allegation of sexual abuse, not a prior allegation. However, we are unaware of any reason why this fact should automatically render the subsequent allegation inadmissible. Another distinguishing feature in the case at bar is the proffered testimony concerning the subsequent allegation would not have absolutely proved the subsequent allegation false. In Gorney, the victim was an adult, and the proffered testimony clearly established she intended falsely to accuse someone of rape in an effort to “get even” with that person. The facts are clear that in Gorney the proffered testimony involved an intentional lie.

In the case at bar, the proffered testimony concerning the subsequent allegation of abuse established a DCFS employee determined the allegation was unfounded. Additional proffered testimony on this issue would allegedly show J.C. was not in the presence of the defendant on the day in question. Therefore, it would have been impossible for the abuse to have occurred. Lastly, defendant also stated, if allowed to testify, J.C.’s step-grandmother would testify when J.C. did not get his way he would threaten to tell his mother, and she would call the police and have his step-grandmother put in jail. Defendant claims all of the above testimony is relevant and bears on J.C.’s credibility.

If a false accusation bears on a person’s credibility, we can discern no reason why the timing should matter. A lie is a lie. While the character of allegation may distinguish this case from Gorney, unlike Gorney, this is an extremely close case. Defendant should have been allowed to attack J.C.’s credibility by use of the proffered evidence. We determine the trial court abused its discretion in refusing to admit testimony regarding the subsequent unfounded complaint of abuse. A new trial is warranted.

Defendant also claims that the court erred by refusing to admit evidence defendant argues tends to show Julie’s husband, Doug, may have committed the acts of abuse. The proffered evidence involved testimony by J.C.’s grandmother establishing J.C. told her Doug did not take him to the hospital after J.C. fell at a bank and received a lump on his head. J.C. also told his grandmother that Doug would hit J.C. with a wooden spoon when J.C. refused to eat.

While it is true a defendant is entitled to present evidence that implies someone else may have committed the crime at bar (see People v. Wilson (1986), 149 Ill. App. 3d 293, 297), the above evidence is in no way relevant to the issues in the case at bar. The proffered testimony does not even remotely establish Doug may have sexually abused J.C. The court did not abuse its discretion by refusing to admit the above testimony.

Defendant next contends he was not proved guilty beyond a reasonable doubt. A criminal conviction will not be disturbed upon review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) The test is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) While it is clear that it is the responsibility of the trier of fact to resolve factual disputes and assess the credibility of the witnesses (People v. Yates (1983), 98 Ill. 2d 502, 518), in cases involving sex offenses the reviewing court has a special duty to closely scrutinize the evidence. People v. Allman (1989), 180 Ill. App. 3d 396, 401.

Defendant argues that when a defendant convicted of aggravated criminal sexual abuse denies the charge, the conviction will be upheld only where the complainant’s testimony is clear and convincing or corroborated by other evidence. (See People v. Findlay (1988), 177 Ill. App. 3d 903, 910-11.) The State argues this court should abandon the above requirements applied in sexual abuse cases. The State cites People v. Roy (1990), 201 Ill. App. 3d 166, 185, wherein the Appellate Court for the Fourth District stated:

“[T]here is no additional requirement that in a case in which a sex offense is charged the State must, in addition to proving the defendant guilty beyond a reasonable doubt, demonstrate either the evidence is substantially corroborated or the victim’s testimony is clear and convincing. The testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements. The time has past [sic] to rid the law of this sexist anachronism.”

This court has recently agreed with the court in Roy. (See In re A.J.H. (1991), 210 Ill. App. 3d 65, 70-71.) Therefore, we review defendant’s conviction under the principles set forth in Jackson (443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789).

In the case at bar, J.C. testified defendant sucked J.C.’s “boobies” and penis. J.C. stated this occurred while he was watching television. J.C. testified the incident occurred on a Tuesday, began at 12:27 and concluded at 9:30. J.C. also testified his father, Edward, was sleeping at the time and did not witness the incident. A review of the record indicates J.C.’s testimony was, in some instances, nonresponsive, internally inconsistent and confusing. However, it must be noted J.C. is a five-year-old child testifying about incidents that occurred approximately one year prior to trial.

J.C.’s testimony was also somewhat impeached by other State’s witnesses who testified as corroborative complaint witnesses. While Ms. Graham-Toohey testified J.C. told her that Edward did not witness the incident, Ms. Hughes and Ms. Gordon testified J.C. stated Edward did witness the incident and confronted defendant. Additionally, Ms. Gordon testified J.C. indicated the incident occurred at his grandmother’s pool and specifically denied it took place in Edward’s home as J.C. had earlier testified. Furthermore, several witnesses contradicted details of J.C.’s complaint. However, these witnesses, along with several others, all testified J.C. made a complaint of sexual abuse. Additionally, Dr. Baptist testified to medical evidence he opined was indicative of sexual abuse occurring within the past four or five days. This time frame includes the time period alleged in the charging instrument.

This court cannot envision a case much closer than the case at bar. The case revolves around the credibility of the witnesses and particularly the complaining witness. Credibility is an issue for the trier of fact to resolve. (See Yates, 98 Ill. 2d at 518.) We cannot say that, when reviewing the evidence in the light most favorable to the State, no rational trier of fact could have found defendant guilty beyond a reasonable doubt.

Since a new trial is required, we address the restitution issue as it may reappear upon retrial. Defendant contends that the court erred by ordering him to pay $1,000 to the victim’s mother for restitution. These monies were for attorney fees expended by the victim’s mother in pursuing a petition to modify visitation rights. Defendant contends he should not be held responsible for the victim’s mother’s inability to work out amicably a visitation schedule with her ex-husband.

Restitution is an appropriate sentence in some circumstances. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—6.) Section 5 — 5—6(b) of the Unified Code of Corrections provides in part:

“[T]he court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-6(b).)

Even though the victim’s mother was not listed as a victim in the charges of which the defendant was convicted, the defendant may be required to make restitution if the losses sustained by the victim’s mother were proximately caused by the same criminal conduct of the defendant as that of which he was convicted. (See People v. Early (1987), 158 Ill. App. 3d 232, 239.) However, restitution may not be ordered for matters unrelated to the charges before the court. People v. Flanagan (1985), 133 Ill. App. 3d 1, 5.

We determine the attorney fees incurred by the victim’s mother in an effort to modify the visitation rights of her ex-husband are unrelated to the charge of aggravated criminal sexual abuse against the defendant. Defendant’s criminal conduct was not the proximate cause of the attorney fees incurred. The attorney fees were proximately caused by the victim’s mother’s decision .to pursue legal action in a separate proceeding. There were other alternatives available in this cause of action by which she could have sought the isolation of the defendant from the complainant, for example, a request for the imposition of a condition of the bond prior to trial and conditions placed on defendant’s probation as ordered by the court. None of the above would have imposed a financial obligation on the mother.

In a negligence setting, if the defendant’s negligence does nothing more than furnish a condition by which the injury is made possible, and that condition allows an injury to occur by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury. (Illinois Central R.R. Co. v. Oswald (1930), 338 Ill. 270, 273-74.) In the case at bar, there was a subsequent independent act of Julie moving the court to modify visitation in the divorce proceedings. Therefore, defendant’s conduct was not the proximate cause of “damages” suffered by the victim’s mother. It was error for the court to order the defendant to pay the attorney fees incurred by J.C.’s mother in attempting to modify visitation.

For the reasons stated above, we determine the court erred by refusing to admit evidence of a subsequent unfounded allegation of abuse. Defendant is entitled to a new trial based upon this defect. While this case is extremely close, we have not determined defendant was not proved guilty beyond a reasonable doubt. Therefore, double jeopardy does not preclude a new trial. The court’s order of restitution for attorney fees incurred in modifying visitation was also in error.

The judgment of the circuit court of De Kalb County is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

DUNN and GEIGER, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    JAMES ORR et al., Plaintiffs-Appellees, v. ILLINOIS FARMERS INSURANCE COMPANY, Defendant-Appellant.
    Second District
    Nos. 2 — 90—0677, 2 — 90—1014 cons.
    Opinion filed March 22, 1991.

      James S. Jendryk, of Querrey & Harrow, Ltd., of Wheaton, and Michael Resis and Victor J. Piekarski, both of Querry & Harrow, Ltd., of Chicago, for appellant.
    John W. Countryman, of Countryman, Rissman & Krasner, of De Kalb, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Illinois Farmers Insurance Company, appeals the order denying its motion for summary judgment and granting the motion for summary judgment of plaintiffs, James Orr and William Orr. Defendant contends that the trial court erred in ruling that defendant failed to make an adequate offer of increased coverage under its uninsured-motorist insurance pursuant to section 143a — 2(2) of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2(2))..

Defendant issued two policies of automobile insurance to plaintiff James Orr, No. 22 — 8801—26—36 issued August 2, 1983, and 22— 8801 — 26—37 issued March 10, 1985. William Orr, his son, became an insured person under both policies. On August 3, 1986, William Orr was struck by an uninsured motorist and sustained serious injuries in excess of $15,000. At that time, the insurance policies provided coverage in the amount of $100,000 per person for bodily injury with a total of $300,000 per occurrence (the 100/300 coverage) but only $15,000 and $30,000 for injuries caused by uninsured motorists (the 15/30 coverage). The policies are identical except for the specified automobile.

Plaintiffs filed a complaint in which they alleged defendant failed its statutory duty to offer them uninsured-motorist coverage up to the limits of their bodily injury coverage. Plaintiffs sought to reform the policy to increase the limits of the uninsured-motorist coverage to that of the bodily injury coverage or $100,000. Count I involved the first policy, and count II, the second. In count III, plaintiffs alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.). Both parties moved for summary judgment for counts I and II. The trial court entered judgment in favor of plaintiffs, and defendant filed a notice of appeal. Subsequently, defendant moved the trial court to modify the judgment to add the language: “The findings of Count I of the Complaint for Declaratory Judgment are final and appealable and that no just reason exists to stay enforcement or delay appeal under Supreme Court Rule 304(a).” Defendant filed another notice of appeal, and we granted defendant’s motion to consolidate the appeals. We therefore have jurisdiction to review the judgment granting summary judgment regarding count I pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). We cannot review the judgment regarding count II at this time.

Each policy contained the following provisions dealing with uninsured motorists and underinsured motorists:

“PART II — UNINSURED MOTORIST

Coverage C — Uninsured Motorist Coverage

(Including Underinsured Motorist Coverage)

We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle. * * *

3. Uninsured motor vehicle means a motor vehicle which is:

a. Not insured by a bodily injury liability bond or policy at the time of the accident.

b. Insured by a bodily injury liability bond or policy at the time of the accident which provides coverage in amounts less than the limits of Uninsured Motorist Coverage shown in the Declarations.

c. A hit-and-run vehicle whose operator or owner has not been identified and which strikes

(1) You or any family member.

(2) A vehicle which you or a family member are occupying.

(3) Your insured car.

d. Insured by a bodily injury liability bond or policy at the time of the accident but the Company denies coverage or is or becomes insolvent. * * *

Other Insurance

1. We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.

2. The amount of Uninsured Motorist Coverage we will pay under Additional Definitions 3b shall be reduced by the amount of any other bodily injury coverage available to any party held to be liable for the accident.

3. Except as provided in paragraph 2 above, if any other collectible insurance applies to a loss covered by this part, we will pay only our share. Our share is the proportion that our limits of liability bear to the total of all applicable limits.

5. If any applicable insurance other than this policy is issued to you by us or any other member company of the Farmers Insurance Group of Companies, the total amount payable among all such policies shall not exceed the limits provided by the single policy with the highest limits of liability.”

During 1983 and 1985, defendant’s agent, Denny Komes, mailed James Orr letters concerning his coverage. The first letter stated as follows:

“August 8,1983

* * *

Dear Jim and Cathy:

I have reviewed your automobile insurance to be certain that your coverages are providing the best possible protection at the lowest possible cost.

I’ve attached a quote sheet showing each of the following recommended changes and the impact of these changes on your premium.

1. Increase Bodily Injury and Property Damage coverage

2. Increase Uninsured Motorist coverage

3. Increase Medical coverage.

If you would like to discuss these recommendations further, please give me a call. If you would like to make the changes as recommended or prefer that no changes be made, please let me know.

Sincerely,

Illinois Farmers Insurance Co.

Denny Komes

Yes, please make the recommended change.

Signed:_

No, do not make any changes in my coverage. Signed:__

[Page 2]

Orr AUTO INSURANCE QUOTATION 08/02/83

RATES EFFECTIVE 11/20/82 ILLINOIS SEMI-ANNUAL RATES

CAR No. 1 75 COURIERT CAR No. 2 75 COURIERT

FAR ACC. FREE FAR ACC. FREE R/C 1A R TERR 17 J 3 R/C 1A R TERR 17 J 3 BI/PD 250/500/100 79.60 BI/PD 100/300/50 74.40 U/M 100/300 11.70 U/M 15/30 5.00 MED/PIP $100,000 15.60 MED/PIP $5,000 6.30 COMP ACV DED 12.90 COMP ACV DED 12.90 TOWING/ROAD SERV 2.50 TOWING/ROAD SERV 2.50 DTH/DISM $5,000 1.90 TOTAL COST $101.10 TOTAL COST $124.20

FOR YOUR REVIEW! PRESENT COVERAGES.”

The second letter was similar and included the following information on page two:

“February 11, 1985 * * *

Your automobile insurance will be renewing shortly and I have reviewed your coverages so that your policy is providing the best possible protection at the lowest possible cost.

A quotation is attached showing each of the recommended changes that are listed below and the effect these changes will have on your premium.

1. INCREASE BODILY INJURY TO 250/500

2. INCREASE UNINSURED MOTORISTS TO 250/500

3. INCREASE PROPERTY DAMAGE TO $100,000

4. INCREASE MEDICAL TO $100,000

5. ADD ACCIDENTAL DEATH & DISMEMBERMENT

If you would like to discuss these recommendations further, please give me a call or stop by the office. If you would like to make some or all of the recommended changes or prefer that no changes be made, please indicate below. * * *

The third letter, dated August 15, 1985,-was similar and included the following .information on page two regarding a 1978 pickup for a renewal-on August 26, 1985.

The fourth letter, dated August the following information on page tvs 9, 1985, was similar and included concerning a 1979 Cutlass:

* * * * * * For your review! Present coverages.”

The information relevant to the uninsured motorist coverage may be summarized as follows:

Renewal New Old Policy Letter PolicyNumber Offer Policy Aug. 2, '83 Aug. 8, ’83 8801-26-36 U/M 100/300 $11.70 U/M 15/30 $5.00 Feb.ll, ’85 8801-26-36 U/M 250/500 $17.00 U/M 15/30 $6.00 Aug. 26, ’85 Aug. 15, ’85 8801-26-36 U/M 250/500 $18.40 U/M 15/30 $6.50 Sept. 10, ’85 Aug. 29, ’85 8801-26-37 U/M 250/500 $18.40 U/M 15/30 $6.50:

In the order granting plaintiff’s motion for summary judgment, the trial court found that the letters did not suggest that the existing coverage was inadequate and that Komes gave no reason for his recommendation that the coverages be increased. The court found no imperative in the language of the letters. The court found that defendant did not give an intelligible description of the coverage but merely used the word with a price affixed. Based on the ruling of this court in Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, the trial court found the purported offer to increase the policy limits to be overly generalized and therefore insufficient. The trial court granted plaintiff’s motion and reformed the policy to provide additional coverage to $100,000. Defendant appeals.

To understand the cause of action in this cause, it is necessary to examine the statutory requirements, and their subsequent construction by the courts, involving both uninsured-motorist coverage and underinsured-motorist coverage. The legislature in recent years has mandated certain kinds of coverages to be included in automobile insurance policies. All motorists are required to obtain a policy of insurance to protect other parties. No policy may be renewed or issued unless coverage is provided for protection against uninsured motorists in the minimum limits set for bodily injury coverage specified in section 7 — 203 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1985 ch. 951/2, par. 7 — 203). At the relevant time, the Vehicle Code required only that motorists carry bodily injury coverage in the amount of $15,000/30,000. Ill. Rev. Stat. 1985 ch. 951/2, par. 7-203; see Eipert v. State Farm Mutual Automobile Insurance Co. (1989), 189 Ill. App. 3d 630, 633.

Section 143a — 2(1) of the Insurance Code provides that no policy may be issued or renewed unless uninsured-motorist coverage is offered in an amount up to the bodily injury limits; section 143a— 2(2) provides that the named insured may elect or reject the offer of additional coverage as long as the uninsured-motorist coverage is maintained at the minimum level. Section 143a — 2(3) provided that until July 1, 1983, any offer made under subsection 143a — 2(1) must have included an offer of underinsured-motorist coverage to protect against those motorists whose bodily injury limits were insufficient to pay the claims of those they injured. Section 143a — 2(4) provided that these policyholders could elect to purchase underinsured-motorist coverage up to the limits of their uninsured-motorist coverage. Section 143a — 2(5) provides that after July 1, 1983, no policy can be issued or renewed unless underinsured coverage is included in an amount equal to the uninsured-motorist coverage where the uninsured-motorist coverage exceeds the statutory minimum; section 143a — 2(6) provides that the insurance company may combine the two kinds of coverage.

Our courts have construed these sections of the Insurance Code together to hold that, where an insurance company fails to make an adequate, required offer of additional underinsured-motorist coverage, the policy will be reformed to include such additional coverage. (Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425; Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 600.) The inquiry in this cause involves how much of the logic of this line of cases, and the tests of the adequacy of an offer, may be applied to the uninsured-motorist coverage. This court has previously predicated its determination that an adequate offer of underinsuredmotorist coverage was made on the finding that an adequate offer of uninsured-motorist coverage was made, because the proper level of the underinsured-motorist coverage is determined from the proper level of the uninsured-motorist coverage. (Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 477-78.) In Rutter, this court ruled that the offer for additional uninsured-motorist coverage suffered from the same defect as the offer for underinsured-motorist coverage because both lacked sufficient price information. (190 Ill. App. 3d at 478.) Thus, plaintiffs may assert that defendant made an inadequate offer concerning the uninsured-motorist coverage.

In Cloninger, our supreme court found that the legislature was concerned with soaring medical costs which often left injured parties only partially compensated for their injuries. (Cloninger, 109 Ill. 2d at 424.) Thus, the legislature intended that an “offer” mandated under section 143a — 2(3) provide a policyholder with enough information regarding underinsured-motorist coverage to allow the holder to make an intelligent decision of whether such coverage, or additional coverage, should be selected or rejected. (109 Ill. 2d at 425.) An intelligent decision cannot be made unless an explanation of the coverage is supplied by the issuing insurance company. 109 Ill. 2d at 425.

In Cloninger, our supreme court adopted a four-part test to determine the sufficiency of an offer for the optional coverage required by section 143a — 2. To satisfy the statute, an offer must (1) notify the insured in a commercially reasonable manner if the offer is not made in face-to-face negotiations; (2) specify the limits of the optional coverage without using general terms; (3) intelligibly advise the insured of the nature of the offer; and (4) advise the insured that the optional coverage is available for a relatively modest premium increase. (109 Ill. 2d at 425-26; Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 553.) An offer must meet all four parts of the test to satisfy the requirements of the Code; an otherwise model offer may be insufficient if it fails to provide specific price information. Watson v. Hartford Casualty Insurance Co. (1990), 205 Ill. App. 3d 88, 94.

In the cause before the court, plaintiffs contend that defendant’s offers did not specify the limits of the optional coverage as required by the statute and did not intelligibly advise them of the nature of the offered coverage. They contend that the first letter was sent after the policy was issued and that the other three letters did not specify the coverage required by the statute, that is, the level of their bodily injury coverage at 100/300, but rather the higher, proposed level of 250/500. Plaintiffs also argue that the letters did not convey sufficient information regarding the complicated nature of the offered coverage. See Cloninger, 109 Ill. 2d at 428; Overbey, 170 Ill. App. 3d at 603 (offer of “ ‘Did you know that you may now have uninsured motorist coverage in amounts up to your bodily injury limits. If interested, contact your agent’ ” held to be insufficient explanation of underinsured-motorist coverage); Krska, 162 Ill. App. 3d at 554.

We disagree that the proposals in the letters violated the fourth part of the test by failing to list the specific premium for uninsured-motorist coverage at the level of 100/300. The test requires specific proposals and a notice that the additional coverage is available at a modest cost. Defendant did make a specific offer, and the premiums listed with the offer were modest. For example, on August 8, 1985, plaintiffs could have increased their uninsured-motorist coverage from 15/30 for $6.50 to 250/500 for $18.40. The plaintiffs knew the limits for bodily injury coverage were 100/300. A customer could infer that lesser additional coverage would have lower additional premiums. Moreover, the letters told plaintiffs that they could choose all, some or none of the proposed changes. Thus, they could infer the uninsured-motorist coverage could be increased without increasing the bodily injury coverage. The offer does not need to state an all-inclusive list of optional coverages and their respective costs so long as it states the premium is modest. (Krska, 162 Ill. App. 3d at 555.) Also, in Krska, the offer notified the policyholder that he could either raise his uninsured-motorist coverage to equal his bodily injury limits or lower the uninsured-motorist coverage. (162 Ill. App. 3d at 554.) However, he was quoted the exact cost for increasing his uninsured-motorist coverage up to his bodily injury limits. 162 Ill. App. 3d at 554.

The fourth part of the test in Cloninger was adopted from the decision of the Minnesota Supreme Court in Hastings v. Pacific Insurance Co. (Minn. 1982), 318 N.W.2d' 849, 853, which stated that the test did not require that specific premium rates be quoted if the customer is told that substantially more coverage is available for only a small additional charge. (See League General Insurance Co. v. Tvedt (Minn. 1982), 317 N.W.2d 40, 42-43; Holman v. All Nation Insurance Co. (Minn. 1980), 288 N.W.2d 244, 250.) The Minnesota court was addressing a concern that the customer was seldom given enough information to make an intelligent decision about optional coverage and that even a customer who asks for the minimum coverage might decide to increase his limits if told that the additional protection was available at minimal cost. (Tvedt, 317 N.W.2d at 42.) The purpose of the test is to reassure an insured party that the proposed coverage is not expensive. Rutter, 190 Ill. App. 3d at 476.

Plaintiff contends that the explicit words of the statute require an offer in an amount up to the insured’s bodily injury liability limits. Instead, defendant offered an amount in excess of the current bodily injury liability limits by offering an amount equaling the proposed, increased bodily injury limits. The statute requires that “insurers offer optional coverage in definite and specific terms in renewal policies and original policies so as to make effective *** the insured’s clear power of acceptance of the additional coverage.” (Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 333; see Cloninger, 109 Ill. 2d at 425.) The Tucker court decided that, by the fact that the statute gives the customer the right to elect or reject the coverage, the customer had the power to decide whether the additional coverages, both uninsured and underinsured, should be accepted. (Tucker, 125 Ill. App. 3d at 334.) The Code requires insurers to offer the required coverage in clear and specific terms in renewal policies so that the policyholder has an effective and clear power to accept or reject the offer. (Cloninger, 109 Ill. 2d at 425; Petersen v. Allstate Insurance Co. (1988), 171 Ill. App. 3d 909, 913.) In Petersen, a coverage update was included in the mailing, describing how to accept or reject the offer. (171 Ill. App. 3d at 915.) In this cause, the defendant’s letters do not empower the customer to elect the required amounts, the 100/300 limits, but instead put the burden on the customer to call the agent to discover the intermediate limits and then to elect or to reject them. Nevertheless, we do not believe that this excessive offer was not a meaningful offer. The letters did provide the customer with knowledge that increased coverage was available at modest prices. An “offer” does not have to be in the nature of a legal, contractual offer so long as specific information is communicated to the policyholder to make an offer meaningful. (Tucker, 125 Ill. App. 3d at 333.) Because the cases have recognized that an offer is sufficient even if it merely states the premium is modest, the cases imply that placing the burden on the customer to inquire further is acceptable, where an intelligible description of the available coverage is otherwise provided.

The trial court also found that the letters did not provide an intelligible description of the optional coverage as required by the third part of the Cloninger test. Defendant contends that no such description was necessary. The earlier cases dealing with the optional offers concern underinsured-motorist coverage, which was a protection not previously offered or known to consumers. The mere reference to “underinsured motorist coverage” may not convey a clear message to the uninitiated customer; the mere listing of an option without further explanation does not constitute a meaningful offer sufficient to enable the customer to assess why the offer should be carefully considered. (Hastings, 318 N.W.2d at 852.) The supreme court in Cloninger suggested a model offer which included a short description of the optional coverage, which concerned underinsured-motorist coverage. (Cloninger, 109 Ill. 2d at 428-29.) Plaintiff contends the defendant’s offer was insufficient for failure to include similar language.

Defendant argues that uninsured-motorist description cannot be held to the same standards as underinsured-motorist description. Most automobile owners know the purpose of the uninsured-motorist coverage; they know of this State’s attempt to alleviate the problem of numerous drivers without insurance who cause accidents without the means to compensate the victims. Thus, the purpose and nature of the coverage is within the common knowledge of the public while underinsured-motorist coverage was not. Uninsured-motorist coverage has been a required element of automobile policies since 1967.

In addition, defendant argues that the customer is charged with knowing the terms of his own policy. (Foster v. Crum & Forster Insurance Cos. (1976), 36 Ill. App. 3d 595, 598.) James Orr, at his deposition, stated he would glance over his policies when he received them, but he did not recall reading the section regarding uninsured motorists, and he did not know whether he understood it at the time. Unlike that of the cases concerning underinsured-motorist coverage which involved a new kind of insurance, the uninsured-motorist coverage in this cause was part of the policy when the optional increases were offered. Courts in other cases have implied, in dicta, that this source of information is sufficient to satisfy the statute. (Petersen v. Allstate Insurance Co. (1988), 171 Ill. App. 3d 909, 913 (“Having been a policyholder since May 1, 1976, with uninsured motorist coverage from the outset, it would be reasonable to conclude that the Petersens are aware of the meaning of uninsured coverage”); Tucker, 125 Ill. App. 3d at 336 (“Nor can defendant now argue that the insured had a policy in his possession which explained underinsured coverage”).) Plaintiffs may obtain missing information from another source. (Rutter, 190 Ill. App. 3d at 476.) Plaintiffs have not alleged the language of the policy was ambiguous or confusing. Thus, we determine that the plaintiffs in the cause before the court had sufficient information regarding the nature of the offered coverage to elect or reject the offer intelligibly.

The other reasons stated by the trial court for the deficiency of the offers are not persuasive. There was no reason for defendant to misstate the law by couching the proposals in the imperative. The statute does not require that customers must increase their coverage; it gives them the right to elect or reject the additional coverage. Whether existing coverage is inadequate is the customer’s decision, and the insurance company need only explain the options. The legislature has provided a remedy to reduce the problem of policyholders having insufficient protection from underinsured and uninsured motorists. That remedy involves mandating minimum coverage in all policies and informing the consumer of the existence of increased coverage so that the consumer may get the same protection he provides the public. The remedy chosen by the legislature does not require the consumer to purchase the increased coverage but requires only that the increased coverage be made available at a reasonable cost. The plaintiffs should have been aware of the nature of the coverage from their own policies. The letters recommended they increase the coverage, and the accompanying rate sheet showed that increased coverage was available at a modest cost. Defendant cannot be faulted for not making a “hard sell.”

The ultimate disposition of this appeal depends on whether the trial court properly entered summary judgment. A motion for summary judgment should be granted if the pleadings, depositions and admissions on file, together with the affidavits, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 433-34; Watson, 205 Ill. App. 3d 88.) In this cause, there is no dispute regarding the receipt of the letters, their content or the content of the insurance policies, and these items contain all the information relevant to the cause of action. There is no genuine issue of material fact, and, in our view, defendant is entitled to judgment on count I as a matter of law. Thus, the trial court erred in granting plaintiffs’ motion for summary judgment and denying defendant’s motion.

For the above reasons, the order of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and GEIGER, JJ., concur.


author: JUSTICE STEIGMANN JUSTICE GREEN,

text:
    THE COLSON COMPANY, Plaintiff-Appellee, v. ERIC FROST WITTEL, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0552
    Opinion filed March 21, 1991.
    — Rehearing denied May 1,1991.

      GREEN, J., concurring in part and dissenting in part.

      Peter T. Dole, of Paris, for appellant.
    David M. Frisse, of Massey, Anderson & Gibson, of Paris, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1990, plaintiff, the Colson Company (Colson), obtained a preliminary injunction against defendant, Eric Frost Wittel, a former salesman for Colson. The principal thrust of the injunction was to prohibit Wittel from soliciting former customers of Colson and to require Wittel to turn various documents in his possession over to the trial court for examination. Wittel has appealed. We reverse.

Colson’s complaint, upon which relief was granted, was filed in June 1990 and requested compensatory damages and a preliminary and permanent injunction. In its complaint, Colson alleged that Wit-tel, upon leaving the employ of Colson, “took with him information, notes, copies, reports, and other documents, and various forms containing trade secrets.” (Emphasis added.) Colson further alleged that Wittel used the “trade secrets” to benefit himself and his new employer in selling products to Colson’s customers directly in competition with Colson. Colson sought injunctive relief and compensatory damages pursuant to the Illinois Trade Secrets Act (Act) (Ill. Rev. Stat. 1989, ch. 140, par. 351 et seq.). The court granted the injunction after an evidentiary hearing and before defendant had answered the amended complaint.

Most of the evidence presented at the evidentiary hearing was undisputed. It showed that Colson was engaged in the design, marketing, production, and sales of custom calendars, a product specially designed to serve a particular customer’s needs and business purposes by utilizing a design unique to that customer. Wittel was initially employed by Colson in July 1984 as a national account representative whose job was to solicit customer calendar business. While Wittel’s employment was terminated by Colson in February 1985 for economic reasons, he was rehired 10 months later.

Wittel left Colson on April 2, 1990, and one week later joined Corporate Promotions of America, a division of F.L. Companies. After leaving Colson, Wittel contacted five of his former Colson accounts and advised them that he was selling for a new company, which sold both calendars and other products, and that he was no longer affiliated with Colson. The defendant secured business from four of the five companies he contacted: TWA, Massey-Ferguson, Victory Gardens, and Liberty Life. John Jedd, Colson’s president, testified that losing these companies as customers represented a $275,000 loss to Colson.

Substantial testimony was introduced regarding the amount of time and money Colson spent to develop a relationship with a prospective customer. Jedd testified that the process of developing the initial program for a particular customer is long and laborious. As an initial step, the salesmen often must create in the potential customer a perception of need for a custom calendar program. Also, the interaction between the prospective customer and Colson during this period is quite extensive. Jedd stated that approximately three to five years are required before a sale can be made to a prospect. During this period, a substantial amount of information about the potential client is obtained.

Jedd further testified that making a sale to a prospect on a first call is almost impossible. He stated the average Colson salesperson spends $15,000 to $25,000 per year in travel and entertainment expenses, and the first year’s expenses associated with hiring a new salesperson usually exceed the income that salesperson generates. Jedd estimated the expense of obtaining a substantial customer ranged from $150,000 to $200,000 or higher.

Wittel testified, however, that acquiring new clients was not as time-consuming as Jedd indicated. According to Wittel, the process would begin by first identifying a prospective customer from either a newspaper or the “red book,” a list of approximately 17,000 companies that purchase advertising. From this lead, a salesperson would contact the main headquarters of a prospective customer and request to speak to the person in charge of advertising. Such a call would take 10 seconds to a minute to complete.

Wittel testified that he typically did not devote extensive time before the sale to personal contacts with prospective clients. After the first contact, the next contact would concern a yearly renewal. Wittel testified that when he was hired, Colson gave him sales leads and one existing client to service.

According to Jedd’s testimony, information regarding prospective customers was marked “confidential” and given to salespersons on a need-to-know basis because of the time-consuming and expensive nature of cultivating the prospect. Jedd also testified that when Wit-tel was hired, he was given access to any file pertaining to those prospective clients. Information concerning sales was kept within Col-son’s five-person sales department, and each salesperson was given little detail about customers other than his or her own. Jedd said Col-son kept a master list of customers, but Wittel was never given a copy of that list.

Wittel acknowledged that he was exposed to information marked confidential regarding companies he had solicited as well as customers and prospects solicited by others in the company. He also acknowledged that reports containing customer information were marked as “top secret proprietary information,” and some bore a legend that they had to be destroyed. However, Wittel testified that he did not learn the names and addresses of the customer’s sales representatives from these reports. Wittel testified that although he had been exposed to the names of Colson’s customers other than his own, he has never made use of that information.

Wittel conceded that Colson disapproved of Wittel’s use of his own computer in processing information regarding price and contracts with his customers. Nevertheless, he continued to put customer letters on that computer, as well as a list of his customers and prospects. Wittel admitted that in regard to some customers, this list included the place where the customer lived, the people to contact regarding that account, and the telephone numbers of those people.

The preliminary injunction restrained Wittel from “communication” or “contact” with “any person or entity who was or represented a client, customer,” or one identified to him “as a prospective customer *** of [Colson], as of April 2, 1990,” and ordered Wittel to withdraw all pending sales proposals to those persons and entities. The injunction order also required Wittel to (1) write a letter to all such persons or entities having his sales proposals, explaining the existence of the injunction; (2) not act adversely regarding Colson’s relations with any of its customers; (3) not make use of information gained by him while employed by Colson; and (4) advise the court within 10 days of any documents, records, or other things he had taken with him from Colson and his use of the information contained therein, with such items to be delivered to the court so they could be available for inspection by the parties.

In Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1002-03, 516 N.E.2d 1313, 1317, this court wrote the following:

“In order for a preliminary injunction to issue the party seeking it must establish by a preponderance of the evidence (1) he possesses a certain and clearly ascertainable right or interest needing protection; (2) there is no adequate remedy at law; (3) irreparable harm will result if it is not granted; and (4) there is a reasonable likelihood of success on the merits. [Citations.] In addition to consideration of the above criteria, the trial court must conclude that the benefits of granting the injunction outweigh the possible injury which defendant might suffer as a result thereof. [Citations.] Finally, as the decision to grant or deny preliminary injunctive relief rests within the sound discretion of the trial court, and because its findings may not be disturbed absent a showing of an abuse thereof [citations], the role of a reviewing court is limited to a determination of whether those findings are contrary to the manifest weight of the evidence.”

The interest Colson seeks to protect is the information Wittel had concerning Colson’s customers. Colson contends that this information constitutes a trade secret within the meaning of section 2(d) of the Act, which defines a trade secret, in part, as follows:

“[information including but not limited to *** [a] list of actual or potential customers ***, that:
(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” Ill. Rev. Stat. 1989, ch. 140, par. 352(d).

Section 3(a) of the Act provides for the issuance of injunctions against “[a]ctual or threatened misappropriation” of trade secrets. (Ill. Rev. Stat. 1989, ch. 140, par. 353(a).) A misappropriation results from “disclosure or use of a trade secret of a person without express or implied consent by another person who: *** acquired [it] under circumstances giving rise to a duty to maintain its secrecy or limit its use.” Ill. Rev. Stat. 1989, ch. 140, par. 352(b)(2)(B)(II).

The foregoing provisions of the Act were in force at all times pertinent here. Prior to the enactment of the Act, a common law doctrine similar to the Act protected trade secrets. The leading case on this issue is ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 273 N.E.2d 393. There, the supreme court upheld an injunction prohibiting a former employee from using drawings belonging to his former employer concerning fans manufactured by that employer and from selling fans manufactured by use of those plans. The design for the fans was arguably unique, but could have been discovered by a person taking apart one of the fans and copying the engineering. The injunction was limited in duration to 18 months after the employee left the employment of the employer. The supreme court considered this length of time to be appropriate because that would be the approximate time necessary for a competitor to tear down one of the fans, discover its engineering, and put a fan of that design through production and into the market.

The ILG Industries, Inc. court defined a trade secret as “a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide it.” (ILG Industries, Inc., 49 Ill. 2d at 92, 273 N.E.2d at 395.) The court held that the factors stated in the Restatement of Torts (Restatement of Torts §757, comment b, at 6 (1939)) should be considered in determining whether information is a trade secret. These factors are:

“ ‘(1) [T]he extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in- his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.’ ” ILG Industries, Inc., 49 Ill. 2d at 93, 273 N.E.2d at 396, quoting Restatement of Torts §757, comment b, at 6 (1939).

Colson stresses that the detail of information it compiled, and to which Wittel had access at times, constitutes trade secrets for which it may seek protection under the Act. The detail of information it maintains it compiled includes:

“(1) Customer names; (2) customers’ addresses; (3) customers’ phone numbers; (4) the fact that customers have a custom calendar program in place; (5) the fact that customers have an existing relationship with the Colson Company; (6) the names of those who make the customers’ decisions, both present and past; (7) the names of those with whom one must make contact or deal with concerning the order, negotiations over price, type of calendar, its appearance, and marketing; (8) what features, sizes, types, options, colors, etc., of calendars, and the logos, slogans and themes the customer is interested in; (9) the procedures the customer uses (and has used) for consideration, negotiation, selection, and purchase and/or marketing and distribution of the calendars; (10) its marketing goals for use of the calendar program; (11) its budget for the program; (12) what role the plaintiff must play in the marketing and distribution to the customers’ agents, distributors, branches or affiliates or customers of the calendar selected by the customer; (13) who will pay for the calendars produced; (14) how many units are likely to be required; (15) what special requirements the customer imposes, considering the product or its marketing or internal purchasing or approval procedures; (16) their plans for future custom calendar programs; (17) unique factors in the cost of producing or the pricing of the product for the particular customer; (18) special timing requirements concerning the initial proposal, resolution of production and pricing issues, marketing to distributors, etc., and delivery; and (19) the fact that the customer or those who will be paying the plaintiff for their calendars have proven creditworthy.”

Wittel maintains the foregoing information is not difficult for competitors of Colson to obtain. He cites Carbonic Fire Extinguishers, Inc. v. Heath (1989), 190 Ill. App. 3d 948, 547 N.E.2d 675, where the court held that neither the customer list nor pricing information of a firm selling and servicing fire extinguishers and cleaning restaurant hoods was a protectable trade secret because the names of the various customers could easily be obtained from the yellow pages of telephone directories. There, the only business areas involved were Chicago and Rockford. Here, the area is the entire nation. Wittel testified that the names of the various potential customers can be obtained from books listing national advertisers. However, Colson argues that the value of the totality of information which Colson seeks to protect does not arise merely from the names of customers and prospective customers, but also from the amount of detail that Colson obtained about them.

The major problem with upholding the injunction granted is that, on the record before us, the parties have no agreement restricting Wittel from competing with Colson for customers upon termination of his employment. Colson does not argue that such an agreement exists. The complaint alleged Wittel signed a document in which he agreed that during and after his employment, he would not “disclose or otherwise use any proprietary or confidential information that comes” into his possession during employment. No evidence was presented to the court concerning this agreement, the amended complaint was not verified, and by the time the preliminary injunction hearing was held, Wittel had not answered Colson’s complaint or admitted that such an agreement existed. Because this agreement is not before us, we cannot consider any of its terms.

Section 2(d)(2) requires that trade secret information must be “subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” (Ill. Rev. Stat. 1989, ch. 140, par. 352(d)(2).) This is similar to the factors set forth in the Restatement of Torts and adopted in ILG Industries, Inc., which consider the extent to which information is known outside of the business, the extent to which the information is known by the employer’s own employees, and the extent of the measures taken by the employer to protect its secrecy. Colson presented evidence of the various steps it took to keep certain types of information confidential or to limit the amount of that information available to its own employees. This evidence included testimony that (1) reports about customers were distributed to salespersons on a “need-to-know” basis and expressly marked “confidential, secret information”; (2). such reports were to be destroyed after reading; and (3) at meetings, employees were cautioned that information discussed was confidential and not to be discussed outside the building.

In seeking to support the preliminary injunction, Colson relies on Agrimerica, Inc. v. Mathes (1990), 199 Ill. App. 3d 435, 557 N.E.2d 357, Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 549 N.E.2d 793, Lee/O’Keefe Insurance Agency, 163 Ill. App. 3d 997, 516 N.E.2d 1313, and Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302, all of which concern the question of whether a former employer has a protectable interest in its relationship with its customers so that a former employee can be enjoined from contacting those customers for a reasonable time. However, in all of these cases, the former employee had agreed not to solicit the employers’ customers for a reasonable period and not to disclose confidential information. The issue in each of these cases was whether the employer had a sufficient interest in the.customer information possessed by the employees to support the covenant. In Shapiro, the court found the issue presented was moot. Only in Agrimerica, Inc., did the appellate court uphold the restrictive covenant.

Section 396(b) of the Restatement (Second) of Agency permits an agent, upon termination of an agency, absent a contrary agreement, to use secret information concerning customers properly acquired from the principal and committed to memory. (Restatement (Second) of Agency §396(b) (1958).) In Revcor, Inc. v. Fame, Inc. (1967), 85 Ill. App. 2d 350, 228 N.E.2d 742, the circuit court refused to enjoin a salesman who had worked for one employer from soliciting its customers on behalf of another employer. The appellate court affirmed, noting that the information concerning the first employer’s customers was not confidential and the salesman had taken no list with him. Specifically, the appellate court wrote the following:

“If a salesman has agreed to a restrictive covenant in his employment contract, or if he has fraudulently and surreptitiously copied or removed lists of customers from a prior employer, or if the names of actual or potential customers are confidential, not subject to memory, are not publicly listed or otherwise readily obtainable, then, under proper circumstances, such salesman might be enjoined from soliciting business from the customers of his prior employer. Absent such circumstances, however, there can be no such prohibition.” Revcor, Inc., 85 Ill. App. 2d at 357, 228 N.E.2d at 746.

In reaching our decision, we do not have the benefit of any decision of an Illinois court of review upholding an injunction against a former employee’s solicitation of the customers of the former employer where fraud was not involved and where the employee was not subject to a restrictive covenant.

Regarding the difficulties that arise when a former employee is enjoined from soliciting customers of the former employer, we find persuasive a statement by Federal District Court Judge Milton I. Shadur, in a somewhat similar case involving Illinois law:

“[Sjuch information comprises general skills and knowledge acquired in the course of employment. Those are things an employee is free to take and to use in later pursuits, especially if they do not take the form of written records, compilations or analyses. [Citation.]
Any other rule would force a departing employee to perform a prefrontal lobotomy on himself or herself. It would disserve the free market goal of maximizing available resources to foster competition. Or to frame the issue in the way discussed earlier in this opinion, it would not strike a proper balance between the purposes of trade secrets law and the strong policy in favor of fair and vigorous business competition.
All this does not render helpless an employer worried that the skills and knowledge an employee acquires during the course of employment will give him or her an undue competitive advantage. Nothing prevents such an employer from guarding its interests by a restrictive covenant. But it would really be unfair competition to allow the employer without [(emphasis omitted)] such a covenant to obtain trade secret status for the fruits of ordinary experience in the business, thus compelling former employees to reinvent the wheel as the price for entering the competitive market.” Fleming Sales Co. v. Bailey (N.D. Ill. 1985), 611 F. Supp. 507, 514-15.

Our analysis of whether the information at issue in this case falls within the definition of “trade secret” under section 2(d)(2) of the Act begins with the observation that this definition includes a list of actual or potential customers that “is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 140, par. 352(d)(2).) The question this statutory definition then raises is, secret from whom?

We find that the steps taken by Colson were designed to keep information obtained by or given to a particular salesperson from becoming generally known to others within the company, except on a “need-to-know” basis; however, these steps obviously were not designed to keep that same information from the particular salesperson in question.

Colson’s position would be correct if this were a case in which Wittel, while planning to leave Colson’s employ, obtained information from files belonging to other salespersons so that he could take it with him to his new job. If these circumstances were present in this case, then Wittel would have misappropriated information the “secrecy or confidentiality” of which Colson had taken appropriate steps to maintain. Those steps were taken in order to keep that information from employees like Wittel, and the injunction against Wittel would have been proper. However, this hypothetical case is not the present one. Here, Colson took no steps to keep information gathered by Wittel, while working for Colson, secret from Wittel. To even state the proposition in this fashion demonstrates that the Act’s definition of “trade secret” is inapplicable here.

All of the evidence in this case shows that the information Wittel brought from Colson to use on his new job was either (1) given to him freely by Colson, or (2) developed by Wittel from his “working a client.” Colson’s real complaint is not that Wittel obtained this information, but that after he obtained it (frequently as a result of Col-son’s having given it to him), Wittel did not handle it as Colson wished. Colson might be right in this complaint, and Wittel’s behavior may very well be “dirty pool”; however, Wittel’s behavior does not constitute a violation of the Act. To hold otherwise would be to disregard the plain meaning of section 2(d)(2).

To achieve the kind of protection being sought in this case, Colson should have required its prospective employees to sign restrictive covenants as part of their employment contracts. The prospective employees could then have bargained about the terms of the restrictive covenants or perhaps have extracted some additional contractual benefits in exchange for Colson’s insistence on the covenants. At a minimum, employees, such as Wittel, would then have had advance notice of the limitations upon their future employment as a result of the covenants to which they agreed. Colson’s actions in the present case amount to an effort to derive the benefits of a restrictive covenant which it never obtained from Wittel.

For the reasons stated, the orders of the circuit court are reversed.

Reversed.

KNECHT, P.J., concurs.

JUSTICE GREEN,

concurring in part and dissenting in part:

I concur in the decision of the majority to reverse the portion of the order for the preliminary injunction which prohibits Wittel from soliciting former customers of Colson and which requires Wittel take affirmative action other than turning over certain documents. I dissent from the decision of the majority to reverse the portion of that order requiring Wittel to turn over certain documents to the clerk of the court.

I agree that under Revcor, Inc. and Fleming Sales Co., absent a valid restrictive covenant, a former salesperson cannot be properly restricted from soliciting customers or former customers of a former employer where the names of those customers have been committed to the memory of the salesperson and their names have not been obtained by fraud. This was the situation in regard to the customers Wittel was soliciting here.

I disagree with the majority in regard to their contention that information or customers’ names must have been kept secret from the former employee for them to be trade secrets as to him. The ILG Industries, Inc. opinion does not indicate the drawings involved there were kept secret from the former employee and obtained by him through stealth. The authoritative quotation from the Restatement of Torts does not make such a requirement (Restatement of Torts §757, comment b, at 6 (1939)). (ILG Industries, Inc., 49 Ill. 2d at 93, 273 N.E.2d at 396.) Section 396 of the Restatement (Second) of Agency limits the authority given a former employee to make use of secret customer information obtained from a former employer to that committed to memory and gives no indication that information which cannot be divulged is limited to that which has been kept secret from the employee.

The Revcor, Inc. opinion is more specific in indicating that customer information need not be kept secret from a former employee in order for an injunction to lie without a restrictive covenant. The opinion indicates that, under “proper circumstances,” salespersons may be enjoined from soliciting customers of a former employer if a restrictive covenant exists, a list of the customers has “fraudulently or surreptitiously [been] copied or removed” from that employer “or if the names of actual or potential customers are confidential, not subject to memory, [and] are not publicly listed or otherwise readily obtainable.” (Emphasis added.) Revcor, Inc., 85 Ill. App. 2d at 357, 228 N.E.2d at 746.

Here, Wittel was aware of a substantial amount of customer information which had been acquired at great expense to Colson. Substantial effort had been made by Colson to keep this information confidential. Contrary to Colson’s direction, Wittel had placed a list of customers with whom he had worked and prospective customers on Wittel’s personal computer. He had also placed some letters he had written to customers on that computer and, apparently, he had taken this information with him. In Fleming Sales Co., apparently no customer lists were taken. Depriving Wittel of these lists would not require him to figuratively “perform a prefrontal lobotomy on himself” (Fleming Sales Co., 611 E Supp. at 514), as long as he is permitted to use information he has committed to memory. I conclude the circuit court was well within its discretion in requiring Wittel to deliver all copies containing the foregoing information to the circuit clerk.

Preliminary relief beyond the requirement that Wittel turn over certain documents to the circuit clerk is hard to justify. Much of the customer information available to Wittel had been committed to memory. This was particularly true in regard to the former customers Wit-tel had solicited. Determining whether subsequent solicitation by Wit-tel of other former Colson customers would result from Wittel’s memory or former notes would be very difficult, if not impossible, to determine. Accordingly, I agree that except in regard to the documents held by Wittel no other preliminary injunctive relief should have been granted.