author: JUSTICE DUNN JUSTICE McLAREN,

text:
    PHILIP A. MILLER, Plaintff-Appellant, v. ARNOLD TOBIN, Defendant-Appellee.
    Second District
    No. 2—88—0583
    Opinion filed July 17, 1989.

      McLAREN. J., dissenting.
    Cary N. Goldberg, Jeffrey D. Hupert, and Gary I. Levenstein, all of Lynn & Levenstein, Ltd., of Chicago, for appellant.
    Tyler Jay Lory, James T. Ferrini, and Gary Kostow, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Mary F. Stafford, of Epton, Mullin & Druth, Ltd., both of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Philip Miller, appeals from a judgment of the circuit court of Lake County dismissing his complaint against defendant, Arnold Tobin, a physician engaged in the practice of psychiatry. On appeal, plaintiff contends that the trial court should not have applied the two-year statute of limitations of section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212) to his complaint. We affirm.

On November 13, 1987, plaintiff filed a complaint in the circuit court of Lake County alleging that he was injured as a result of defendant’s violation of the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (Ill. Rev. Stat. 1987, ch. 91½, pars. 801 through 817). Plaintiff specifically alleged that while he and his wife were receiving marriage counseling from defendant, defendant revealed confidential information to plaintiff’s wife that plaintiff had specifically asked defendant not to reveal. Plaintiff also claimed that he was injured because defendant breached an implied contract.

Defendant moved to dismiss the complaint, arguing that the statute of limitations had expired and that plaintiff had not complied with the statutory requirements for bringing a malpractice action. The trial court concluded that plaintiffs complaint was not a malpractice action, but the limitations period set out in section 13 — 212 did apply and time barred the suit. While both counts were dismissed, plaintiff appeals only from the dismissal of the count based on the Confidentiality Act.

While the Confidentiality Act provides that suit may be brought as a result of its violation (Ill. Rev. Stat. 1987, ch. 91½, par. 815), it does not specify what the statute of limitations is with respect to such a suit. Plaintiff argues that the statute of limitations set out in section 13 — 212 does not apply to the present case because his complaint does not sound in malpractice. Defendant contends that section 13 — 212 applies to this action because plaintiff’s injury arose out of treatment by defendant.

Section 13 — 212 states in pertinent part:

“§13 — 212. Physician or hospital, (a) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).)

While this section clearly applies to malpractice actions against physicians, it is a general limitations section designed to apply to all cases against physicians arising out of patient care. Therefore, the pertinent issue is not whether plaintiff’s suit alleges malpractice, but whether plaintiff’s injuries arose out of patient care.

A statute of limitations is to be construed in light of its objectives and to fulfill the object for which it was enacted. (Mathis v. Hejna (1969), 109 Ill. App. 2d 356, 360, 248 N.E.2d 767, 769.) Section 13 — 212 is meant to apply to suits arising out of patient care. The phrase “arising out of” is broad and generally means “originating from,” “growing out of,” or “flowing from.” (6 C.J.S. Arise 525, 526 (1975).) In Burgdorff v. Siqueira (1982), 109 Ill. App. 3d 493, 440 N.E.2d 920, defendant wrongfully advised plaintiff to retire from his job for health reasons. The Burgdorff court concluded that plaintiff’s subsequent loss of income was an injury arising out of patient care; therefore, the medical malpractice statute of limitations applied. Burgdorff, 109 Ill. App. 3d at 495-96, 440 N.E.2d at 922-23.

In the present case, plaintiff’s alleged injury occurred during the course of defendant’s treatment of plaintiff’s wife. This situation is analogous to an issue we faced in Horak v. Biris (1985), 130 Ill. App. 3d 140, 474 N.E.2d 13. In Horak, defendant claimed that plaintiff did not have standing to sue for malpractice because the actions complained of were directed to plaintiff’s wife, not plaintiff. (Horak, 130 Ill. App. 3d at 146, 474 N.E.2d at 18.) We concluded that plaintiff could maintain a malpractice action because plaintiff and his wife were receiving treatment “for the common purpose of rehabilitating their marital relationship” (Horak, 130 Ill. App. 3d at 146, 474 N.E.2d at 18), and the treatment of one spouse would have an effect on the other spouse and the prospects for successful treatment. Horak, 130 Ill. App. 3d at 146, 474 N.E.2d at 18.

The present complaint alleges that both plaintiff and his wife were receiving treatment from defendant for marital problems. Therefore, plaintiff’s injury did arise out of patient care in that plaintiff and his wife were jointly seeking treatment, and plaintiff’s injury occurred during his wife’s phase of the treatment. As such, the limitations period set out in section 13 — 212 does apply to the present case, and the suit is not timely.

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

Affirmed.

LINDBERG concurs.

JUSTICE McLAREN,

dissenting:

I have several concerns which require my dissent. Initially it should be noted that plaintiff filed a suit containing two counts. He is appealing only the dismissal of the first count. The first count alleged a doctor-patient relationship to establish an element under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 91½, pars. 801 through 817). The count did not allege any breach of the standard of care required of a physician; nor did it allege any act of patient care by defendant directed to plaintiff, nor is either required under the Act. Defendant filed a section 2 — 619 motion and argued, without any additional allegations of fact, that as a matter of law section 13 — 212 was applicable and count I should be dismissed. Irreconcilably, the trial court found that “Plaintiff does not seek recovery for incorrect or negligent treatment; Plaintiff’s cause of action is based on violations of Defendant’s duties under the Act,” and then, citing a dictionary, determined that “otherwise” makes section 13 — 212 applicable to this case. The majority has not reconciled how something that is found not to be malpractice is covered by the malpractice statute of limitations. See Owens v. Manor Health Care Corp. (1987), 159 Ill. App. 3d 684; Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649.

The majority opinion cites Horak v. Biris (1985), 130 Ill. App. 3d 140, to extrapolate an affirmance. The Horak case is factually distinguishable for several reasons. First, it was based upon allegations of malpractice as designated by plaintiff-spouse. Second, the act of malpractice was alleged as a violation of patient care, not a violation of the Act. Third, plaintiff alleged that defendant was treating plaintiff, albeit through plaintiff’s wife, when the alleged violation of patient care took place. None of those allegations are contained in the instant first count.

The majority states that “[t]he present complaint alleges that both plaintiff and his wife were receiving treatment from defendant for marital problems. Therefore, plaintiff’s injury did arise out of patient care in that *** plaintiff’s injury occurred during his wife’s phase of the treatment.” (Emphasis added.) (186 Ill. App. 3d at 178.) Plaintiff never alleged that the alleged disclosure was made during patient care of either him or his wife. He only alleged the existence of a doctor-patient relationship. The majority has taken a quantum leap to conclude, as a matter of law, that the disclosure was patient care, especially patient care of plaintiff.

Plaintiff did not allege an act of patient care directed to him that caused his injuries. Plaintiff alleged a disclosure of a confidence to a third party outside of plaintiff’s presence. Plaintiff also alleged the information was given in confidence and defendant was specifically admonished not to disclose such information to the particular third party. Having reviewed the record, there is no pleading or affidavit which could give any court the ability to conclude that the disclosure occurred during patient care. Patient care is traditionally the act or nonact which causes the injury. It is not the same as the doctor-patient relationship. (Lyon, 156 Ill. App. 3d at 653.) In this case, there is an allegation of the latter; there is no allegation whatsoever by any party as to the former.

I find it difficult to conceive a factual scenario where the disclosure of a confidential statement by a physician to a third party outside the presence of a plaintiff would constitute patient care of a plaintiff. In any event, patient care still is an element of proof and an issue of fact. In this particular case, the trier of fact may ultimately decide in favor of defendant. However, such a rationale does not suffice in affirming the trial court’s judgment on such a scanty record. I therefore respectfully dissent.


source: Caselaw Access Project

author: JUSTICE REINHARD JUSTICE McLAREN,

license: Public Domain

text:
    JAMES BATTISFORE, Indiv. and as Special Adm’r of the Estate of John Battisfore, Deceased, Plaintiff-Appellant, v. FLORA MORAITES et al., Defendants-Appellees.
    Second District
    Nos. 2—88—0733, 2—88—1064 cons.
    Opinion filed July 17, 1989.

      McLAREN, J., specially concurring.
    Donald T. Morrison, of Donald T. Morrison & Associates, P.C., of Waukegan (Joseph T. Morrison, of counsel), for appellant.
    Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Daniel Playfair Field, of counsel), for appellee City of Waukegan.
    Kathryn A. Spalding and Gary W. Klages, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, of counsel), for appellee Outboard Marine Corporation.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, James Battisfore, individually and as special administrator of the estate of John Battisfore, deceased, appeals from orders of the circuit court of Lake County entered on April 18, 1988, July 28, 1988, and September 29, 1988. The order of April 18 granted the motion of defendant Outboard Marine Corporation (OMC) for summary judgment directed at count III of plaintiff’s third amended complaint. The order of July 28 granted OMC’s motion to dismiss count II of plaintiff’s fourth amended complaint. The order of September 29 granted the motion of defendant City of Waukegan (Waukegan) for summary judgment directed at count I of plaintiff’s fourth amended complaint.

The issues presented on review are: (1) whether OMC owed plaintiff a duty under section 368 of the Restatement (Second) of Torts; (2) whether the circuit court erred in dismissing the wilful and wanton count in the fourth amended complaint against OMC; (3) whether Waukegan had a duty to warn of the hazard adjacent to the roadway even though on property not owned or controlled by Waukegan; and (4) whether this court lacks jurisdiction over plaintiff’s appeal against OMC, as maintained in a motion to dismiss filed in this court by OMC.

Plaintiff’s third amended complaint is in three counts. Count I is against Flora Moraites, the driver of the vehicle in which the deceased was riding as a passenger at the time of the occurrence, and was apparently settled during the course of the proceedings below. Count II is against Waukegan and alleges that on June 16, 1986, at 11:35 p.m., deceased was a passenger in a vehicle driven by Moraites on Sea Horse Drive, a roadway under Waukegan’s jurisdiction. The complaint further alleges that at or near the 500 block of Sea Horse Drive the roadway curves sharply and turns abruptly, that there are immovable cement-filled barricade pillars located immediately adjacent to the roadway at various points along the curve, that on prior occasions vehicles have left the roadway at this location and struck the pillars, causing property damage and personal injury to occupants of vehicles that Waukegan had notice of, and that Waukegan had a duty to keep Sea Horse Drive in a safe condition for travel and to warn motorists of hazards adjacent to the roadway, which Waukegan failed to do. Plaintiff alleges that Waukegan was negligent in failing to warn of the sharp turn and of the hazards immediately adjacent to the roadway and to illuminate the roadway to disclose the sharp turn and adjacent hazards.

Count III is against OMC and alleges, inter alia, that OMC operated a factory adjacent to the 500 block of Sea Horse Drive, that OMC placed the barricade pillars adjacent to the roadway, that OMC had notice of prior collisions with the pillars, and that OMC violated its duty to keep its property free from artificial conditions which create a substantial risk of harm to those who foreseeably deviate from the roadway. Plaintiff alleged that OMC was negligent in placing the immovable type of barricades immediately adjacent to the roadway and in failing to warn of the existence of these barricades.

Following the filing of its answer and discovery by the parties, OMC filed a motion for summary judgment contending that plaintiff’s decedent was a trespasser to whom no duty was owed. OMC argued further that there was no duty to guard against the type of injury sustained by plaintiff’s decedent. Attached to the motion was the deposition of David Hoffman.

Hoffman testified that at the time of the occurrence he was employed by Pinkerton Security as a security guard at the OMC facility on Sea Horse Drive. He had arrived early for work that night and was seated in his automobile putting his work shoes on. He was parked in an OMC parking area off the roadway and outside a fenced-in parking lot for employees. The parking area he was in was just to the east of the curve where the accident occurred. He heard the engine of a vehicle which he believed to be coming at a high rate of acceleration, about 45 to 50 miles per hour, and saw the car go past him, enter the curve, put on its brake lights, and collide with a cement pillar. He could see well as there was fluorescent lighting for the parking lot and the area. He believed the speed limit on Sea Horse Drive was 30 to 35 miles per hour. The parties agree the speed limit was 30 miles per hour except at the curve, where it was 20 miles per hour.

Hoffman’s testimony, and photographs of the scene identified by Hoffman and later included with Waukegan’s motion for summary judgment, indicate that two yellow signs on a light pole located just to the east of where Hoffman was parked depict a sharp-turn warning arrow and a 20-miles-per-hour speed limit. On the other side of the parking area from where Hoffman was parked is the curve, which is further marked by another yellow sign with an arrow. The photographs also show that the roadway and the adjacent parking area are one continuous paved area in what appears to be a commercial and industrial complex. At the curve, there are several concrete pillars two or three feet in height spaced apart from each other and from which a guard rail stretches. The guard rail contains strips of illuminating or reflective materials, as shown in the pictures which were taken on the evening of the accident by Waukegan police. The pillars and the guard rail are about two feet off the road surface. Just behind the guard rail and the pillars is a fence on OMC’s property where there is a parking lot and a loading area. The road is two lanes separated by an intermittent yellow line and, at the curve, by an additional solid yellow line.

Plaintiff’s response to OMC’s summary judgment motion included a document which indicated that the pillars were installed in 1976 by OMC to protect OMC’s fence from damage resulting from previous accidents where cars hit the fence. Thereafter, on April 18, 1988, the circuit court granted OMC’s motion for summary judgment finding no duty was owed to plaintiff pursuant to section 368 of the Restatement (Second) of Torts. The court also found no reason to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Subsequently, on May 16, 1988, the court denied plaintiff’s motion to reconsider but vacated the Rule 304(a) finding and allowed plaintiff leave to file a fourth amended complaint alleging a wilful and wanton misconduct count against OMC. The wilful and wanton count later filed against OMC was substantially the same as count III of the third amended complaint which had been decided on summary judgment except that it contained the allegations of wilful and wanton misconduct. The motion to reconsider also had attached documentary and deposition evidence of other accidents at the location of the curve.

OMC filed a motion to dismiss the wilful and wanton count pursuant to section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) contending that there was no duty owed to plaintiff as previously decided in the summary judgment proceeding. The circuit court granted OMC’s motion to dismiss and again made a Rule 304(a) finding. Plaintiff immediately filed a notice of appeal from the order of summary judgment granted on April 18, 1988, and the dismissal order of July 28, 1988.

On August 29, 1988, Waukegan filed a motion for summary judgment contending that it owed no duty to plaintiff’s decedent to provide adequate illumination and to warn of conditions off the roadway not caused by it and, even if there was a duty to warn, it had done so and was not negligent. Waukegan attached photographs of the accident scene taken on the night in question and photographs taken at a later date. Depositions of Flora Moraites and several passengers in her car were also submitted to the court. All the depositions indicated that Moraites was travelling at a speed between 40 and 50 miles per hour. The court granted summary judgment in favor of Waukegan, finding that no duty was owed to plaintiff’s decedent under section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 102(a)). Plaintiff has appealed this order as well, and this appeal has been consolidated in this court with plaintiff’s appeal from the orders in favor of OMC.

On December 12, 1988, OMC filed a motion to dismiss the appeal pursuant to Supreme Court Rule 361 (107 Ill. 2d R. 361). OMC contends that the court lacked jurisdiction because the notice of appeal was not timely filed. We ordered that this motion and plaintiff’s response be taken along with the other issues presented on appeal.

The initial issue to be decided is whether this court has jurisdiction to consider plaintiff’s appeal of the two orders relating to OMC. Relying on Parrish v. Lee (1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188, OMC contends that the circuit court lost jurisdiction once it made the Rule 304(a) finding on April 18, 1988, in the order granting OMC’s motion for summary judgment on count III of the third amended complaint. Thus, OMC maintains that the circuit court was without jurisdiction to entertain the subsequent motion to reconsider and to enter any other orders thereafter. According to OMC, the notice of appeal by plaintiff filed on June 28, 1988, from both orders against it was untimely as not filed within 30 days of the April 18, 1988, order in which the Rule 304(a) finding was recited.

In Parrish v. Lee (1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188, the Appellate Court for the Third District held that the trial court divested itself of jurisdiction over a claim for relief where multiple claims for relief are involved once a Rule 304(a) finding was made as to a judgment on that claim. This comports with OMC’s position. On the other hand, the dissenting opinion in Parrish (Parrish, 167 Ill. App. 3d at 447-49, 521 N.E.2d at 1190-91 (Heiple, J., dissenting)), the Appellate Court for the Fourth District, in Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 521 N.E.2d 1292, and the Appellate Court for the First District, Third Division, in Lake County Trust Co. v. Two Bar B, Inc. (1989), 182 Ill. App. 3d 186, 537 N.E.2d 1015, take the position that the entry of a Rule 304(a) finding does not divest the circuit court of jurisdiction. This court has implicitly taken the latter position in Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 350, 525 N.E.2d 258, and Lewis v. Royal Globe Insurance Co. (1988), 170 Ill. App. 3d 516, 519, 524 N.E.2d 1126. We do not agree with Parrish as it incorrectly applies Elg v. Whittington (1986), 149 Ill. App. 3d 307, 500 N.E.2d 568, affd (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, to the issue before it, as pointed out in Justice Heiple’s dissent in Parrish. Nor does our supreme court’s decision in Elg (Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232) address the issue before us.

Accordingly, as the part of the order of April 18, 1988, reciting the Rule 304(a) finding was vacated within 30 days of May 16, 1988, the trial court retained jurisdiction to entertain further motions and enter further orders. OMC’s motion to dismiss the appeal against it is denied.

Turning to the merits of this appeal, we consider first plaintiff’s appeal of the order granting summary judgment for Waukegan on count I of the fourth amended complaint. The thrust of plaintiff’s appellate contention is that Waukegan owed a duty to warn motorists of the hazard of cement-filled barricade pillars adjacent to the roadway on the curve in the roadway where there had been prior accidents, even though the hazard was not on the roadway or under the control of Waukegan. While plaintiff further argues that the warning signs of the curve in the roadway were insufficient to warn of the dangerous concrete pillars and a question of fact exists as to the adequacy of the signs placed by Waukegan, the duty issue is dispositive. No argument is presented on appeal relating to the adequacy of the lighting conditions at the accident site or the adequacy of the signs warning of the sharp curve itself, as alleged in the amended complaint.

Section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 102(a)) provides:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.”

Although this statute would impose a duty to alter an unsafe condition on municipal property, the hazard complained of is not on Waukegan’s property, and, in the absence of Waukegan’s right of control over the property, Waukegan has no duty to alter the condition of the hazard. (See Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 443-44, 404 N.E.2d 213.) Nevertheless, plaintiff argues that Waukegan has a duty to warn of the hazard located on property adjacent to the roadway.

In Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, our supreme court adopted the principle that a municipal unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit. (Janssen, 79 Ill. 2d at 444-45, 404 N.E.2d at 217-18.) The court further found that a municipality’s duty to warn motorists of dangerous conditions is codified in section 3 — 104(b) of the Tort Immunity Act, which provides:

“(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1985, ch. 85, par. 3-104(b).)

(Janssen, 79 Ill. 2d at 450, 404 N.E.2d at 220.) In Janssen, the supreme court found a duty owed by the municipality to warn motorists of a hazard caused by a projecting portion of a traffic island in an area immediately past a street that the municipality controlled. DiOrio v. City of Chicago (1981), 99 Ill. App. 3d 1047, 425 N.E.2d 1223, cited by plaintiff, similarly held that a municipality had a duty to warn motorists of a low clearance of a railroad overpass even when the hazard itself was not within the control of the municipality. DiOrio, 99 Ill. App. 3d at 1052-53, 425 N.E.2d at 1228.

In Janssen and DiOrio the duty embodied in section 3 — 104(b) “to warn of a condition which endangered the safe movement of traffic” is implicated because there was an obstruction in or over the roadway which endangered the safe movement of traffic, even though the hazard was not on municipal property or controlled by the municipality. In the case at bar, however, the hazard complained of, cement pillars off the roadway on property not owned or controlled by Waukegan, has no effect on the safe movement of traffic. Thus, there is no duty imposed on Waukegan to warn under these circumstances. The entry of summary judgment is proper where only a question of law is involved, and, where it appears from the pleadings, affidavits, and depositions that no duty is owed by the defendant, the granting of summary judgment is proper. (Barnes v. Washington (1973), 56 Ill. 2d 22, 26-27, 305 N.E.2d 535.) The circuit court correctly granted summary judgment in favor of Waukegan even though not for the precise reason articulated by this court. See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9.

Plaintiff next contends that the circuit court erred in entering summary judgment in favor of OMC on count III of plaintiff’s third amended complaint which alleged negligence in OMC’s placement and maintenance of concrete barricade pillars adjacent to the roadway. Plaintiff argues that the circuit court’s conclusion that, as a matter of law, OMC owed no duty to plaintiff’s decedent is erroneous.

Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 116, 514 N.E.2d 188.) In this case, brought under the Wrongful Death Act, it is necessary that OMC owed a duty to plaintiff’s decedent. Whether a duty exists is an issue of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387; Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 440, 484 N.E.2d 1088.) Reasonable foreseeability of injury is a key concern in determining whether a duty exists. (Kirk, 117 Ill. 2d at 526, 513 N.E.2d at 396.) Additionally, the question of duty in a negligence action should take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequence of placing that burden upon the defendant. Kirk, 117 Ill. 2d at 526, 513 N.E.2d at 396.

With respect to the duty of an owner of land abutting a public highway to protect travelers upon the highway who may come in contact with artificial conditions on the land, Illinois courts have been guided by section 368 of the Restatement (Second) of Torts. (Restatement (Second) of Torts §368 (1965); Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 517 N.E.2d 656; Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519; West v. Faurbo (1978), 66 Ill. App. 3d 815, 384 N.E.2d 457.) Section 368 provides:

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” Restatement (Second) of Torts §368 (1965).

Plaintiff contends that it was foreseeable that cars would fail to negotiate the curve at the location of this accident. Plaintiff notes that on numerous other occasions cars have left the road at this curve. Therefore, plaintiff concludes a duty arose. Plaintiff also maintains that the fact that the driver of the car in which the decedent was a passenger might have been negligent would not prevent a duty from arising. We disagree.

The fact that it might be foreseeable that other travelers might come into contact with the cement blocks in the ordinary course of travel does not create a duty in favor of plaintiff’s decedent whose deviation was not in the ordinary course of travel. Section 368 of the Restatement provides that a possessor of land on which a dangerous artificial condition exists near a highway is “subject to liability for physical harm *** caused to persons who *** foreseeably deviate from it in the ordinary course of travel.” (Emphasis added.) (Restatement (Second) of Torts §368 (1965).) For a duty to attach, the person to whom it is owed must foreseeably deviate from the roadway in the ordinary course of travel. (Kavanaugh, 164 Ill. App. 3d at 218, 517 N.E.2d at 659-60; Boylan, 103 Ill. App. 3d at 344, 431 N.E.2d at 70.) As stated in comment g of section 368 of the Restatement (Second) of Torts, “[t]he distinction is thus not one between inadvertent and intentional deviations, but between those which are normal incidents of travel and those which are not.” Restatement (Second) of Torts §368, comment g, at 270 (1965).

Here, plaintiff’s decedent left the road and collided with the cement pillars on OMC’s land while in a car travelling between 40 and 50 miles per hour around a clearly marked and illuminated sharp curve in a commercial area for which the general 30-miles-per-hour speed limit along the road was reduced to 20 miles per hour. Such deviation was not in the ordinary course of travel. (See Hoffman, 97 Ill. App. 3d at 726-27, 423 N.E.2d at 523.) In this context, plaintiff’s assertion that the negligence of the driver of the vehicle did not prevent OMC from owing a duty to plaintiff’s decedent misses the mark. The pertinent question is whether plaintiff’s decedent foreseeably deviated from the road in the ordinary course of travel as would make it appropriate to impose upon OMC the burden of guarding against the occurrence. The undisputed facts show that the deviation of the vehicle in which plaintiff’s decedent was a passenger was not a normal incident of travel and therefore no duty was owed. The distinction is not one between inadvertent and intentional deviations, but between those which are normal incidents of travel and those which are not. (Restatement (Second) of Torts §368, comment g, at 270 (1965).) Whether or not plaintiff’s decedent was negligent is of no consequence because there is no duty owed to him by OMC under these circumstances.

This result is consistent with the considerations of duty which include, besides foreseeability, the likelihood of injury, the magnitude of the burden.of guarding against it, and the consequences of placing the burden upon the defendant. (Osborne v. Sprowls (1981), 84 Ill. 2d 390, 396-97, 419 N.E.2d 913.) Notice of the sharp curve and a reduced speed limit was adequately given, and the area was well illuminated. The roadway runs through a commercial and industrial area where the buildings and fences of the abutting property owners are close to the roadway. The barricade pillars, while close to the roadway, protect OMC’s property. We do not believe that a duty should be placed on OMC under the circumstances here to guard against injury to plaintiff’s decedent who is injured while a passenger in a vehicle which goes off the roadway striking the barricade pillar while travelling at a speed of 40 to 50 miles per hour around a curve in a clearly marked 20-miles-per-hour speed zone.

Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, 459 N.E.2d 1131, and Kubota v. Dudlow (1958), 17 Ill. App. 2d 463, 150 N.E.2d 643, principally relied on by plaintiff, are inapposite to the instant case. Kubala merely involved the question of whether a cause of action had been pleaded and was not a review of a summary judgment proceeding as is the case here. In Michalak, the defendant was a county which had erected a guard rail, presumably on its property along the roadway, and did not involve liability of an adjacent property owner.

For the foregoing reasons, the circuit court properly granted summary judgment in favor of OMC as to count III of plaintiff’s third amended complaint.

The last issue to be addressed is whether the circuit court erred in dismissing count II of the fourth amended complaint against OMC premised on OMC’s wilful and wanton misconduct. The court below found that no duty was owed to plaintiff’s decedent by OMC and dismissed the action based on OMC’s motion pursuant to section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619).

It is apparent that the circuit court dismissed count II of the fourth amended complaint on the same basis that it entered summary judgment for OMC on count III of plaintiff's third amended complaint, that no duty was owed to plaintiff’s decedent. As we have held above, summary judgment was properly granted in favor of OMC as there was no duty owed because plaintiff’s decedent’s deviation from the roadway onto OMC’s property was not in the ordinary course of travel. Thus, amending the action in the fourth amended complaint to assert wilful and wanton misconduct by OMC’s placement and maintenance of the concrete pillars adjacent to the roadway does not change the result that no duty was owed under the circumstances. Because OMC’s motion to dismiss was under section 2 — 619, the circuit court could properly consider the affidavits and depositions filed in the summary judgment proceeding and was not limited to the pleading attacked. Although the better practice may have been for OMC to file another summary judgment motion attaching the affidavits and depositions originally presented to the court in the first summary judgment motion on the third amended complaint, it is obvious that the court and the parties were considering the duty question based upon the materials submitted at the prior summary judgment proceeding together with the most recently filed amended pleadings, and no prejudice resulted. The amended complaint against OMC was properly dismissed as no duty was owed to plaintiff’s decedent.

The judgment of the circuit court is affirmed.

Affirmed.

DUNN, J., concurs.

JUSTICE McLAREN,

specially concurring:

I concur with the court’s opinion as to all matters other than its opinion on counts III and IY.

Contrary to the trial court’s determination and the majority opinion, I believe a duty existed as set forth in the Restatement (Second) of Torts §368 (1965). However, I believe that, as a matter of law, there was no breach of duty based upon the established facts in this case.

Just as the majority, I believe the facts establish an unreasonably foreseeable deviation from the highway in the ordinary course of travel. However, I believe plaintiff could not and did not present sufficient material facts to establish liability.

The general rule regarding the duty owed by an owner or occupant of land to the occupant of a motor vehicle to protect against injury resulting from the vehicle leaving the roadway and coming in contact with an artificial condition adjacent to the roadway is:

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” (Restatement (Second) of Torts §368 (1965).)

(See Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 725.) For a duty to exist, the person to whom that duty is owed must foreseeably deviate from the roadway in the ordinary course of travel. (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 218, citing Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 344.) The condition of the roadway must be such that a vehicle is likely to deviate from it in the ordinary course of travel and come in contact with the artificial condition. (Kavanaugh, 164 Ill. App. 3d at 218, citing Boylan, 103 Ill. App. 3d at 345.) To determine foreseeability, “we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight.” Cunis v. Brennan (1974), 56 Ill. 2d 372, 376.

In the instant case, OMC argues that a duty pursuant to section 368 of the Restatement (Second) of Torts did not arise because Moraites was not exercising reasonable care while travelling upon the highway and travellers will not foreseeably deviate from the highway in the ordinary course of travel. OMC’s first contention is misplaced. The fact that a third party, Moraites, was or was not exercising reasonable care has no bearing on whether a duty is owed to plaintiff’s decedent under section 368. The record and briefs are replete with facts pertaining to the conduct of Moraites. There is no evidence that plaintiff’s decedent was not in the exercise of reasonable care while traveling upon the highway.

In Kubala v. Dudlow (1958), 17 Ill. App. 2d 463, plaintiff’s decedent was killed when a car in which he was a passenger left the roadway at a sharp curve and struck a concrete abutment located on a defendant’s property. The plaintiff alleged that the defendant erected and maintained a row of concrete posts at a point where the roadway made a sharp turn. The plaintiff also alleged that the defendant constructed these posts with the knowledge that they were so close to the highway that users would necessarily strike them if unintentionally deviating from the road. Additionally, the plaintiff alleged that the defendant permitted a dangerous condition to remain after actual knowledge that it had caused injuries. The plaintiff argued that by placing and maintaining these abutments on its land close to the highway without proper warning devices, the defendant exhibited willful and wanton misconduct. The court, upon reviewing the grant of the defendant’s motion to dismiss and citing section 368 of the Restatement (Second) of Torts, reversed the trial court and found that a cause of action did exist under this factual setting. Kubala, 17 Ill. App. 2d at 469-70.

This court has also had an opportunity to consider section 368 of the Restatement (Second) of Torts in the case of Kavanaugh (164 Ill. App. 3d 213). In that case, the plaintiff’s decedent died when the car he was driving left the roadway and became submerged in a retention pond located on the defendant’s property. The trial court found that the defendant owed no duty to the plaintiff’s decedent and granted defendant’s motion to dismiss. On appeal, the plaintiff contended that the defendant owed the decedent a duty of reasonable care to maintain and guard the retention pond because it was foreseeable that a motor vehicle, in its ordinary course of travel, could leave the roadway and enter the pond.

This court affirmed the trial court’s order dismissing the claim, finding the complaint deficient in several respects. We stated:

“The complaint, however, sets forth no allegations as to why the location of the retention pond involves an unreasonable risk ***. There are no allegations, for example, that the pond was located near a sharp curve in the roadway [citation] or opposite a T’ intersection in the roadway [citation], which might make it likely that the vehicle would deviate from the roadway in the ordinary course of travel and come into contact with the pond. The bare allegation that Midwest Club happened to locate its retention pond ‘in the vicinity of’ this particular stretch of roadway, by itself, without an allegation of a condition peculiar to the roadway, does not create a duty to protect the occupants of vehicles which *** leaves [sic] the roadway and enters the pond.
*** In addition to plaintiff’s failure to allege any condition of the roadway that is likely to cause a vehicle to deviate therefrom *** there are no allegations of where the retention pond was in relation to 31st Street.” Kavanaugh, 164 Ill. App. 3d at 218-19.

The case at bar is similar to Kubala and also contains the facts that were missing in Kavanaugh. In this case, there is a sharp curve in the roadway. The location of the concrete pillars is such that if a motorist travelling in either direction failed to negotiate the curve, he/she would come in contact with the pillars. In addition, it is uncontroverted that the pillars are immediately adjacent to the curve. A motorist would not have to veer off the roadway by more than a few feet to strike the pillars. “Distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far.” (Restatement (Second) of Torts §368, comment h (1965).) I am of the opinion that this case is similar to Kubala, in which a cause of action was found to exist, and also supplies the facts that were missing in Kavanaugh. I find that a duty to plaintiff’s decedent did attach pursuant to section 368 of the Restatement, and the trial court erred in holding otherwise.

The main difference between my opinion and the majority’s opinion is that their opinion ascribes the negligent acts of the driver to the plaintiff. No case has been found or cited which considers the existence or nonexistence of a duty based upon the acts of a third party, absent some knowledge or activity of plaintiff that could be deemed negligent. Rather than protecting OMC’s fence with concrete abutments two feet from the roadway, the fence should have been moved back or some less hazardous alternative taken.

Since I determine that there was a duty which was not breached, I specially concur.


author: JUSTICE LINDBERG

text:
    CAROL RODGERS, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants.
    Second District
    No. 2—88—0920
    Opinion filed July 17, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Henry G. Rose and Lewis Cheek, both of Loyola University Community Law Center, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Carol Rodgers (claimant), brought the instant action seeking administrative review of a final decision of the Illinois Department of Employment Security Board of Review (Department) that she was ineligible for unemployment benefits because she voluntarily left employment without good cause attributable to the employer. The Department appeals from the circuit court’s order reversing its decision, contending that the circuit court’s decision is clearly contrary to the statutory language set out in the disqualification provisions of section 601(A) of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 431(A)). The Department contends that its interpretation of the Act is entitled to considerable deference. The Department argues that the circuit court’s decision is improperly based upon case law from other jurisdictions which is not binding in Illinois and on one Illinois decision which is not dispositive of the issue. We are not persuaded by the Department’s contention and affirm.

The facts are not in dispute. Claimant held two jobs; she was employed as a full-time clerical worker for I.B. Diffusion from August 1985 through December 31, 1986, and she worked part time as a hostess and cashier for Walgreen Company (Walgreen’s), from March 1, 1982, through January 11, 1987. Claimant’s part-time job comprised approximately 10 hours per week at an hourly rate of $4. On December 31, 1986, she was laid off from her full-time job by I.B. Diffusion due to lack of work and filed an initial claim for unemployment benefits on January 6, 1987. The Department prepared a claimant information sheet, dated January 7, 1987, which informed claimant that her maximum weekly unemployment benefit amount was $142. On January 9, 1987, Walgreen’s notified the Department of claimant’s possible ineligibility for unemployment benefits due to the fact that, as of that date, she continued to work on a part-time basis. Walgreen’s indicated, “We believe our account should not be charged since the hiring agreement has not been broken.” The record does not contain any such notice protesting eligibility from plaintiff’s full-time employer, I.B. Diffusion.

On or about January 11, 1987, claimant voluntarily left her part-time position with Walgreen’s because she relocated to a suburb and had transportation problems getting to work. At this juncture, claimant was ruled ineligible for unemployment benefits by a Department claims adjudicator on the basis that her voluntary leaving of the part-time job was not attributable to the employer and was without good cause. Claimant appealed this adjudication, and a hearing was held before a Department hearing referee on May 8, 1987, at which claimant and Walgreen’s appeared and presented testimony and argument. The referee made the following findings of fact:

“FINDINGS OF FACT:
The Claimant was employed as a full time Clerical Worker for I.B. Diffusion from August of 1985 through December 31, 1986, at which time she was laid off due to lack of work.
The Claimant filed her initial claim for benefits on January 6, 1987, making the effective date of her claim January 4, 1987.
The Claimant had also worked as a part time Hostess-Cashier for Walgreen Company from March of 1982 until January 11, 1987. The Claimant worked for Walgreen Company at 5470 South Archer Avenue, in Chicago, on Saturdays and Sundays from 8:00 a.m. to 1:00 p.m., at the rate of $4.00 per hour.
The Claimant relocated from Chicago, Illinois to Roundlake Beach, Illinois. She advised Walgreens that she was moving, and requested a transfer to another location close to her new residence. The Employer agreed to transfer the Claimant to their facility in Crystal Lake, Illinois, and informed her that she would be working Fridays and Saturdays from 6:30 pm. to 3:00 a.m.
The Claimant was unable to work at the new location as scheduled due to transportation problems. She never reported for work, and never notified the Employer that she was leaving work.
The Claimant was not disqualified from receiving benefits due to her separation from employment from I.B. Diffusion.”

The referee noted claimant’s contention that although she voluntarily left her part-time job at Walgreen’s for reasons not attributable to it, based on her involuntary separation from her full-time employer she should be considered eligible for partial unemployment benefits subject only to a reduction in the weekly benefit in the amount of her part-time earnings had she not left Walgreen’s. (We note that claimant’s average weekly earnings at Walgreen’s of $40 were insufficient to reduce her weekly benefit pursuant to section 402 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 402).) The referee concluded that section 601(A) of the Act required that claimant be disqualified from receiving any unemployment benefits as she had voluntarily left work without good cause attributable to the employer, thus affirming the determination of the claims adjudicator. He noted, however, that claimant should not have been disqualified from benefits for the first week of her claim which preceded her leaving Walgreen’s. Claimant appealed the referee’s decision to the Department’s Board of Review and submitted a brief citing case law from other jurisdictions in support of her contention. The Board of Review affirmed the referee’s decision, and claimant sought administrative review in the circuit court.

The circuit court reversed the Department’s decision in an order entered August 18,1988, stating:

“While it is true that [claimant] has no claim against Walgreen’s Company, the fact that she voluntarily left her part-time employment has no bearing on her involuntary dismissal from I.B. Diffusion. To deny all benefits to the [claimant] is a burden on her and a benefit to her prior employer and against the very policies developed under the Illinois Unemployment Insurance Act.”

The circuit court based its conclusion on Butler v. Board of Review, Illinois Department of Labor (1985), 136 Ill. App. 3d 1079, 484 N.E.2d 318, as well as Sticka v. Holiday Village South (Minn. 1984), 348 N.W.2d 761, Stiles v. Coit (1985), 285 Ark. 212, 686 S.W.2d 405, and Neese v. Sizzler Family Steak House (Fla. App. 1981), 404 So. 2d 371, finding the unemployment compensation statutes in these States to be substantially similar to the Act.

On appeal, the Department contends that the circuit court erred in relying upon Butler and case law from foreign jurisdictions in that the former contained only dicta applicable to the instant issue and the latter is not binding on the courts of Illinois. The Department further contends that its interpretation of the statute which it administers is entitled to considerable deference from a reviewing court.

Addressing the Department’s last contention first, we note its correct statement of the law, viz., an agency’s interpretation of its enabling statute is entitled to great deference from a reviewing court, unless that interpretation is clearly erroneous, arbitrary or unreasonable (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152, 447 N.E.2d 295, 300.) We note, however, that an administrative agency’s legal conclusions are not entitled to the same deference as its findings of fact. (Carson Pirie Scott & Co. v. Department of Employment Security (1987), 164 Ill. App. 3d 530, 535-36, 518 N.E.2d 161, 164, leave to appeal allowed (1988), 121 Ill. 2d 568, 526 N.E.2d 828), and when the facts are not in dispute and the issue on review is one of law, the court is not bound by the agency’s determination (Commonwealth Edison Co. v. Illinois Commerce Comm’n (1989), 181 Ill. App. 3d 1002, 1007, 538 N.E.2d 213, 215-16; see also Harrisburg-Raleigh Airport Authority v. Department of Revenue, (1989), 126 Ill. 2d 326, 331, 533 N.E.2d 1072, 1073-74). An agency’s decision which is based upon an arbitrary, erroneous or unreasonable statutory construction cannot be allowed to stand. Harrisburg-Raleigh Airport Authority, 126 Ill. 2d at 331, 533 N.E.2d at 1073-74; see also Winnetkans Interested in Protecting the Environment v. Pollution Control Board (1977), 55 Ill. App. 3d 475, 480, 370 N.E.2d 1176,1179.

The court’s function in interpreting a statutory provision is to ascertain and give effect to the legislative intent underlying the statute; in order to accomplish this task, the reviewing court must look at the statute as a whole, taking into consideration its nature, its purpose and the evil the statute was intended to remedy. (Mitee Racers, Inc. v. Carnival-Amusement Safety Board (1987), 152 Ill. App. 3d 812, 816-17, 504 N.E.2d 1298, 1301.) We note that the cardinal purpose of the Act is to provide benefits to involuntarily unemployed individuals thereby alleviating their economic distress. (Ill. Rev. Stat. 1987, ch. 48, par. 300; see also Burke v. Board of Review, Illinois Department of Labor (1985), 132 Ill. App. 3d 1094, 1099, 477 N.E.2d 1351.) Although unemployment benefits are a conditional right, thus placing the burden of proof on a claimant to establish her eligibility, it is undisputed that the Act is remedial in nature and therefore is to be construed liberally in order to effectuate its beneficent purpose. Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 576-77, 494 N.E.2d 1266, 1267; Burke, 132 Ill. App. 3d at 1099, 477 N.E.2d at 1355-56.

The question presented on review is whether section 601(A) of the Act requires that Carol Rodgers, formerly a full-time employee at I.B. Diffusion and part-time employee for Walgreen Company, should be totally disqualified from receiving unemployment benefits on the ground that she voluntarily left her part-time job without good cause attributable to the employer. Section 601(A) provides as follows:

“§601. Voluntary leaving. A. An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit and, thereafter, until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount ***.” Ill. Rev. Stat. 1987, ch. 48, par. 431(A).

The appellate court has previously considered this exact issue in Butler v. Board of Review, Illinois Department of Labor (1985), 136 Ill. App. 3d 1079, 484 N.E.2d 318, a case which presents a factual pattern mirroring that of the instant case. Butler held two jobs, a full-time position with the Department of Mental Health and a part-time position as a bus driver. He was laid off from the full-time job and voluntarily quit the part-time job. Butler’s application for unemployment benefits was denied because he voluntarily left work without good cause attributable to the employer as provided by section 601(A) of the Act. (Ill. Rev. Stat. 1981, ch. 48, par. 431(A).) The appellate court reversed and stated:

“[I]t would appear that he is entitled to benefits based on the fact that he was involuntarily laid off by DMH [his full-time employer]. Regardless of the circumstances under which he left his part-time job, he became entitled to [unemployment] benefits when he was laid off [from his full-time position].” 136 Ill. App. 3d at 1081, 484 N.E.2d at 320.

The court noted that section 239 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 349) permits individuals with part-time positions to collect unemployment benefits so long as the wages they earn are less than the weekly unemployment benefit amounts to which they are entitled. (136 Ill. App. 3d at 1081, 484 N.E.2d at 320), and, from this fact, the court concluded that Butler was eligible to receive unemployment benefits when he lost his full-time position. “The fact that he held a part-time job did not preclude him from receiving benefits. Consequently, the circumstances of his leaving his part-time job should not affect the receipt of benefits due to him as a result of being laid off by DMH.” 136 Ill. App. 3d at 1081, 484 N.E.2d at 320.

Because the Butler court concluded that the record before it was incomplete, and because it appeared that Butler’s full-time employer had not an opportunity to be heard, the court remanded the matter to the Department of Labor for a determination of whether Butler was entitled to benefits based on his separation from his full-time employer. It is clear, however, that the court decided that Butler’s voluntary termination of his part-time employment in no way precluded him from receiving unemployment benefits based upon the loss of his full-time job. In short, the court’s conclusion on this issue is not mere obiter dictum-, the Butler court stated a proposition which expressed its opinion regarding an issue it deliberately considered. Such a statement is judicial dictum and constitutes binding precedent. (See In re Marriage of Drews (1985), 139 Ill. App. 3d 763, 487 N.E.2d 1005, affd (1986), 115 Ill. 2d 201, 503 N.E.2d 339.) Thus we find the Butler holding dispositive of the issue before us. The fact that Rodgers, the instant claimant, held a part-time job with Walgreen’s did not preclude her from receiving benefits based upon her involuntary separation from her full-time position at I.B. Diffusion; consequently, the circumstances surrounding her separation from her part-time position should in no way affect her entitlement to benefits due her as a result of her involuntary layoff.

Even if we accepted the Department’s characterization of the Butler holding as a casual, unrelated statement of the court which did not go to the heart of the dispute, we would nevertheless accept the Butler court’s reasoning as highly persuasive (see Drews, 139 Ill. App. 3d at 771, 487 N.E.2d at 1010; see also Board of Trustees of Police Pension Fund v. Illinois Human Rights Comm’n (1986), 141 Ill. App. 3d 447, 455-56, 490 N.E.2d 232, 237). The Butler rationale makes sense in light of the primary purpose of the Act and furthers its policies, while the Department’s literal and rigid interpretation is impractical, does not serve the Act’s purpose and is unnecessarily harsh. For these same reasons, we find the circuit court’s reliance on case law from other jurisdictions to be entirely appropriate.

In her brief to this court, claimant offers decisions from six foreign jurisdictions; careful review of these cases and the State statutes upon which they are based convinces us of the correctness of the circuit court’s decision. (See Stiles v. Coit (1985), 285 Ark. 212, 686 S.W.2d 405; Tomlin v. California Unemployment Insurance Appeals Board (1978), 82 Cal. App. 3d 642, 147 Cal. Rptr. 403; Neese v. Sizzler Family Steak House (Fla. App. 1981), 404 So. 2d 371; Sticka v. Holiday Village South (Minn. 1984), 348 N.W.2d 761; Gilbert v. Hanlon (1983), 214 Neb. 676, 335 N.W.2d 548; Unemployment Compensation Board of Review v. Fabric (1976), 24 Pa. Commw. 238, 354 A.2d 905.) Likewise, our review of the applicable unemployment compensation statutes in each of these jurisdictions reveals a substantially similar statutory scheme to that set out in our own act in that, with the exception of the Nebraska Employment Security Law (Neb. Rev. Stat. §48 — 601 et seq. (1988)), each contains a declaration of public policy, a provision for disqualification from eligibility for benefits based upon a claimant’s voluntary leaving without good cause attributable to an employer, a definition of unemployment which does not preclude a claimant from obtaining benefits while working part time, and a provision for partial benefits when a claimant does in fact hold a part-time position. (See Ark. Stat. Ann. §11 — 10—102 et seq. (1987); Cal. Unemp. Ins. Code §100 et seq. (West 1986); Fla. Stat. Ann. §443.011 et seq. (West 1989); Minn. Stat. Ann. §268.01 et seq. (West 1989); Pa. Stat. Ann. tit. 43, §751 et seq. (Purdon Supp. 1988).) Furthermore, the public policy underlying each of the statutory schemes in the six jurisdictions reviewed reveals a legislative intent to provide some form of economic security to persons involuntarily unemployed (see, e.g., Gilbert, 214 Neb. at 682, 335 N.W.2d at 552), and the remedial nature of each of these States’ statutes requires that they be liberally construed in order to effectuate their beneficent purposes (see, e.g., Stiles, 285 Ark. at 216, 686 S.W.2d at 407; Tomlin, 82 Cal. App. 3d at 646, 147 Cal Rptr. at 406). We conclude, as did the courts in Stiles, Tomlin, Neese, Sticka, Gilbert and Fabric, that the Department’s literal interpretation of the Act fails to further the Act’s purposes and, in fact, imposes unnecessary hardships upon unemployed persons; thus, we reject it. Further, as the circuit court noted, to deny claimant benefits in this case works a benefit in favor of her former full-time employer. See also Neese, 404 So. 2d at 372.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and DUNN, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES BELCHER, Defendant-Appellee.
    Second District
    No. 2—88—0765
    Opinion filed July 19, 1989.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals from an order of the circuit court of Lake County dismissing a three-count complaint filed against defendant, James Belcher. The State raises one issue on appeal: whether the trial court erred in granting defendant’s motion to dismiss the charges which asserted the State had violated his right to a speedy trial.

The State filed a criminal complaint against defendant on December 27, 1985. A warrant for defendant’s arrest was also issued on December 27, 1985. Defendant was arrested on April 5, 1988. On May 18, 1988, defendant filed a motion to dismiss all charges, alleging that between June 3, 1986, and March 3, 1988, defendant was in custody and successfully completed a four-year sentence in the Illinois Department of Corrections; defendant was convicted and sentenced under the name of James Belcher; defendant has never used an alias; and the delay in arresting defendant was unnecessary, unjustified and not defendant’s fault. As a result, defendant alleged he was denied his right of speedy trial.

At the hearing on the motion, defendant testified that he was incarcerated in the Illinois Department of Corrections for an offense committed in 1986 in Cook County. Defendant was released from prison on March 3, 1988, and was arrested on the present charges in April 1988.

Prior to his arrest, defendant was not aware that a warrant was outstanding against him. After his release from prison, defendant began part-time employment and regularly reported to his parole officer.

The public defender argued that the delay was excessive. Since defendant was in the custody of the State during the delay, he could easily have been found had the Lake County sheriff checked the records of the Department of Corrections. Counsel also argued that defendant was presumptively prejudiced in light of the length of the delay. Defendant was actually prejudiced because he had been in prison, and had he been promptly tried, he could have received a concurrent sentence. Defendant was also subject to oppressive pretrial incarceration because he was already in prison when the case should have been tried. The delay had also caused defendant anxiety because he had taken courses while in prison and after his release had gotten a job and was starting a new life. Then he was arrested and was put back in jail little more than one month after his release.

The prosecutor argued that defendant had not shown that his defense would be prejudiced were he to proceed to trial and, therefore, defendant’s right of speedy trial was not violated. The court dismissed the charges. The State then filed a motion to reconsider. At the hearing, the State argued that the delay in this case was preindictment and the Lawson standard should apply. (See People v. Lawson (1977), 67 Ill. 2d 449.) The State argued that a court cannot presume prejudice under Lawson. The State’s reasoning was that since there was no indictment, it was a preindictment case. The court concluded that there were pending charges in 1985, even though those charges were made by complaint and, as such, it was a post-indictment arrest and delay. In reaching its decision to deny the State’s motion, the court stated:

“Defendant was incarcerated under the same name, he was in the Illinois Department of Corrections, he was not out of the State of Illinois, and there just was no reason that any search, as far as I know, could not have found out where he was so that he could have proceeded in the case.”

After the court dismissed the petition, the State timely filed this appeal pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)).

The State contends that the trial court erred in dismissing the charges against defendant. The State advances three main arguments in support of this contention: (1) the court applied the wrong standard when it decided whether to dismiss the charges; (2) the court should not have dismissed the charges because they were brought within the statute of limitations; and (3) even if the Barker v. Wingo standard applied, the court did not properly apply it.

First, the State urges that the standard set forth in People v. Lawson (1977), 67 Ill. 2d 449, should apply to the present case rather than the Barker standard. The State did not make this argument in its initial appellant’s brief, but argued this proposition for the first time on appeal in its reply brief in violation of Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)). Generally, arguments which do not conform to the requirements of Supreme Court Rule 341(e)(7) are waived. (People v. Trimble (1989), 181 Ill. App. 3d 355, 357.) Even if this argument were not waived, we would agree with the trial court that the Lawson standard is inapplicable to the present case. Lawson does not apply to cases of undue delay occurring after the filing of an indictment, information, or complaint charging the defendant with the alleged offense. People v. Schroeder (1981), 102 Ill. App. 3d 133,136.

The State next argues that a defendant’s protection against stale charges is the statute of limitations. (United States v. Lovasco (1977), 431 U.S. 783, 789, 52 L. Ed. 2d 752, 758, 97 S. Ct. 2044, 2048.) However, Lovasco is a preindictment-delay case and is therefore inapplicable. In addition, the Lovasco court, in the same paragraph, further stated that the statute of limitations does not fully protect defendants, even in the preindictment situation. Lovasco, 431 U.S. at 789, 52 L. Ed. 2d at 758, 97 S. Ct. at 2048.

The State’s final argument is that the trial court relied solely on the length of the delay and the necessity of such delay but failed to consider the other factors established in Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, and adopted by our supreme court in People v. Bazzell (1977), 68 Ill. 2d 177.

Barker identified four factors which a court should assess to determine whether a defendant has been denied the right to a speedy trial. Those factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. (Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192.) The State takes issue with the trial court’s finding of presumptive prejudice and argues that the court determined there was a sufficient length of delay but did not analyze and balance the remaining factors.

The threshold question in a Barker analysis is whether the delay is presumptively prejudicial. (Millard v. Lynaugh (5th Cir. 1987), 810 F.2d 1403, 1406, cert. denied (1987), 484 U.S. 838, 98 L. Ed. 2d 81, 108 S. Ct. 122.) If a delay is presumptively prejudicial, then the court should go on to balance the remaining three factors: the reason for the delay, the defendant’s assertion of his right, and the prejudice resulting from the delay. (United Sates v. Deleon (7th Cir. 1983), 710 F.2d 1218, 1220; Smith v. Mabry (8th Cir. 1977), 564 F.2d 249, 251-52, cert. denied (1978), 435 U.S. 907, 55 L. Ed. 2d 499, 98 S. Ct. 1456.) Thus, under Barker, even if a court presumes prejudice on the basis of a lengthy delay, the court must still balance that delay against the reason for the delay, whether the defendant asserted his right, and whether the defendant has suffered any prejudice as a result of the delay. Barker, 407 U.S. 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2191-92.

According to the State, the trial court drew an inference as to the reason for the delay in the present case, yet defendant provided no evidence concerning that factor and had the duty to challenge the delay.

Under the sixth amendment, the State has a “constitutional duty to make a diligent, good-faith effort” to locate and apprehend a defendant and bring him to trial. (Smith v. Hooey (1969), 393 U.S. 374, 383, 21 L. Ed. 2d 607, 614, 89 S. Ct. 575, 579.) A defendant need only show that the delay was not attributable to his conduct. People v. Jones (1984), 104 Ill. 2d 268, 280; People v. Reimolds (1982), 92 Ill. 2d 101, 106.

The State, citing People v. Henry (1970), 47 Ill. 2d 312, asserts that the reason for the delay should not be assessed against the State because the evidence did not show any deliberate attempt by the State to gain an advantage over defendant. In Henry, the court found that there was no violation of the right to a speedy trial where the evidence did not show a deliberate intent by the State to oppress or prejudice the defendant. Henry, 47 Ill. 2d at 319.

However, in this case defendant did not need to make such a showing to prove a violation of his right to a speedy trial. Barker, decided after Henry, stated that a deliberate attempt to delay in order to hamper the defense should be weighed more heavily against the government than a more neutral reason; yet a neutral reason must also be weighed against the State rather than against the defendant. (Barker, 407 U.S. at 531, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192.) The State did not provide any reason for the 29-month delay. We therefore conclude that the State has not shown that attributing and weighing the unexplained delay against the State was a clear abuse of discretion.

The State concedes that the third factor, whether defendant asserted his right to a speedy trial, should be weighed against neither the State nor defendant. Defendant was unaware that charges were pending against him, so his failure to request a trial will not be assessed against him.

Regarding the fourth Barker factor, the State argues that defendant failed to prove that he was prejudiced. According to the State, since defendant was incarcerated during the period of delay, he was not subject to oppressive pretrial incarceration; he was unaware of the charges and was therefore not subjected to anxiety and concern during the delay; and the prejudice defendant alleged was speculative. The State asserts that the Supreme Court in Barker stated that prejudice is the most serious factor.

This assertion is a misstatement of the law. In discussing prejudice, the Barker court stated:

“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last ***.” (Emphasis added.) (407 U.S. at 532, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193.)

The Court further stated that “none of the four factors *** [are] either a necessary or sufficient condition to the finding of a deprivation to the right of speedy trial.” (407 U.S. at 533, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193.) The factors are interrelated and must be considered in light of the circumstances of the case. 407 U.S. at 533, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193.

That defendant may not have demonstrated prejudice does not establish that the court erred in dismissing the charges because Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a violation of the right to a speedy trial. (Moore v. Arizona (1973), 414 U.S. 25, 26, 38 L. Ed. 2d 183, 185, 94 S. Ct. 188, 189.) If the other factors weigh so heavily in a defendant’s favor, then prejudice is unnecessary. See Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193.

The ultimate question then is whether the trial court in this case properly weighed the factors when it reached the conclusion that defendant’s right of speedy trial was violated. (1) A delay of 29 months falls within the range of delay which courts have considered presumptively prejudicial. (See Williams v. Lockhart (8th Cir. 1985), 772 F.2d 475, 479 (24 months); United States v. DeTienne (7th Cir. 1972), 468 F.2d 151, 156, cert. denied (1973), 410 U.S. 911, 35 L. Ed. 2d 274, 93 S. Ct. 974 (19-month delay).) (2) The State did not present any reason why it could not have found defendant. He was not a fugitive; rather, he was in the custody of the State. (3) Defendant was unaware of the charges, so this factor will not be weighed against him. (4) The court decided that based on the length of the delay and the State’s inability to justify it, it was unnecessary for defendant to show that he was prejudiced by the delay. Based on these facts, we cannot say that the trial court abused its discretion in assessing two factors against the State and deciding that the factors were of such magnitude that they overwhelmingly demonstrated that the State had violated defendant’s right to a speedy trial. Thus, we conclude that the trial court properly dismissed the charges.

The order of the circuit court of Lake County is affirmed.

Affirmed.

DUNN and WOODWARD, JJ., concur.


author: JUSTICE McLAREN

text:
    FILTERTEK, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Second District
    No. 2—88—1062
    Opinion filed July 20, 1989.
    Rehearing denied August 21, 1989.

      Alan B. Roth, of Wildman, Harrold, Allen & Dixon, of Chicago (Robert M. Gunn, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from the order entered by the circuit court of McHenry County on September 29, 1988. That order affirmed the findings and decision of the Department of Revenue, which had proposed a tax deficiency in the amount of $77,649 for calendar year 1980 and $90,232 for calendar year 1981, or a total of $167,881, together with interest. The court held that the Department’s decision was factual in nature and should be upheld unless it were shown to be against the manifest weight of the evidence. We affirm.

Plaintiff, Filtertek, Inc. (Filtertek), is a Delaware corporation with its offices and manufacturing plant located in Hebron, Illinois. Filtertek is engaged in the manufacture and sale of plastic molded filters, which have medical, automotive, and industrial uses. In 1980 and 1981, approximately 180 people were employed at the Hebron facility, with 92% of the employees engaged in manufacturing. A small sales force also operates out of this facility.

Filtertek de Puerto Rico (Puerto Rico) is also engaged in the manufacture and sale of filters to customers in the United States and Puerto Rico. It too employed approximately 180 people in two plants located in Puerto Rico, with 92% of the employees engaged in manufacturing. Until 1975, Puerto Rico was a subsidiary corporation of Filtertek. At that time, Puerto Rico was “spun off” and became a Delaware corporation with its principal offices located in Patillas, Commonwealth of Puerto Rico.

In 1980 and 1981, over 50% of the Class A stock of both Filtertek and Puerto Rico was owned by Hayden Leason, an individual who resided in Puerto Rico. Leason was chairman of the respective boards of directors. The two firms also shared many common directors and officers. At the time in question, all members of the board of directors for Puerto Rico were on Filtertek’s board. In addition to sharing corporate governance, the two firms engaged in many business transactions. Filtertek and Puerto Rico, along with several European manufacturers owned by Filtertek, engaged in interest-bearing intercompany loans, as well as the intercompany sale of manufactured products, equipment, and services.

Filtertek purchased approximately 90% of the products manufactured by Puerto Rico. Such purchases were pursuant to a contract between the two companies which specified that Filtertek would use its best efforts to distribute Puerto Rico’s products. Title passed to Filtertek upon shipment and these purchases were at “arm’s-length” prices. Multiple products would be shipped to Hebron from Puerto Rico in one sea container. Thereafter, Filtertek would unpackage the goods, repackage them and sell and ship them to customers, 91% to 93% of whom were out of State. Filtertek was then responsible for the billing and collection on these sales. Puerto Rico’s accounts receivable from Filtertek on these purchases remained unpaid for periods in excess of six months without an interest charge, and Filtertek was free to use funds for payment as it deemed appropriate. The Puerto Rican products usually were stored and shipped out from Hebron within the next one to two days. However, if only partial orders were received, Filtertek would hold the product until a complete order for the customer could be filled.

During the years 1980 and 1981, Filtertek prepared and filed Illinois income tax returns with defendant Department of Revenue (Department), allocating its entire income to Illinois. Pursuant to an extension until June 30, 1981, Filtertek timely filed its Illinois income tax return for the calendar year 1980 on May 29, 1981. On April 30, 1984, the Department requested that Filtertek execute an agreement to extend the statute of limitations for assessments for tax year 1980 which was due to expire on May 29, 1984. The agreement was executed by Mr. Soltwedel, Filtertek’s treasurer, who received a photocopy of the agreement. The three executed originals were retained by the Department’s auditor and were executed by the Department later that day. None of the three executed originals was sent to Filtertek.

A Department of Revenue audit and subsequent notice of deficiency issued October 8, 1984, redetermined Filtertek’s Illinois tax liability. The Department determined that Filtertek, its subsidiaries, and Puerto Rico were all members of a “unitary business” requiring application of combined apportionment under section 304(a) of the Illinois Income Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 3 — 304(a)). In calculating the tax owed, the Department made a unitary business income adjustment (a computation based upon the total income of the corporations comprising the unitary business). The Department further determined the percentage of income that should be apportioned to Illinois based on the statutory three-factor formula. The Department apportioned to Illinois and found subject to taxation approximately 77% of the combined business income in 1980 and approximately 64% of the combined business income in 1981. The tax computation resulted in Illinois tax deficiencies of $77,649 in 1980, and $90,232 in 1981, respectively.

A hearing with stipulated facts and oral testimony was conducted before an administrative law judge. The Department issued a notice of decision on February 25, 1987, upholding the deficiency determination. A limited rehearing was granted on the sales factor calculation and, upon further stipulation of facts, the deficiency notice was further sustained by a decision dated and mailed August 31,1987.

On October 2, 1987, Filtertek initiated the instant action by filing a complaint for administrative review in McHenry County. On September 29, 1988, the circuit court entered an order affirming the Department’s administrative decision, finding that it was not against the manifest weight of the evidence. Filtertek appeals from this decision.

The first issue presented is whether the hearing officer’s finding that Filtertek was part of a unitary business group was against the manifest weight of the evidence. We determine that it was not.

The term “unitary business group” is used to describe “a group of functionally integrated corporate units which are so interrelated and interdependent that it becomes relatively impossible for one State to determine the net income generated by a particular corporation’s activities within the State and therefore allocable to that State for purposes of taxation.” (Caterpillar Tractor Co. v. Lenchos (1981), 84 Ill. 2d 102, 116.) The existence of a unitary business group is strongly indicated when a single entity carries on an integrated business in several jurisdictions, with each operation contributing income to the others through centralized management, accumulated know-how and economies of scale. (See Citizens Utilities Co. v. Department of Revenue (1986), 111 Ill. 2d 32.) The finding of a unitary business group is necessary before a State can apportion the income of two or more corporations for tax purposes. See Container Corp. of America v. Franchise Tax Board (1983), 463 U.S. 159, 77 L. Ed. 2d 545, 103 S. Ct. 2933.

Plaintiff admits that an integrated business with common control and common ownership exists in this case. Plaintiff’s only contention is that, at the time in question, an individual’s ownership of the companies was inadequate for finding a unitary business group. Plaintiff is correct in stating that, until the enactment of section 1501(a)(28) of the Illinois Income Tax Act (Act) (Ill. Rev. Stat. 1983, ch. 120, par. 15 — 1501(a)(28)) (now Ill. Rev. Stat. 1987, ch. 120, par. 15 — 1501(a)(27)), Illinois had no statutory definition of what constituted a unitary business and common ownership. However, the Illinois Supreme Court applied “unitary business group” to “a corporation which has subsidiaries or other associated corporations in other States or countries.” (Emphasis added.) (Caterpillar, 84 Ill. 2d at 116.) Clearly, the court did not intend for the unitary business group designation to apply only to corporations in a parent-subsidiary relationship. The language used by the court does not preclude finding a unitary business group when the corporations are owned by an individual. The relationship between Filtertek, its subsidiaries, and Puerto Rico comports with the concept of “associated corporations” set out by the court. Based on plaintiff’s admissions and the language of the Caterpillar court, we cannot say that finding plaintiff to have been part of a unitary business group was against the manifest weight of the evidence.

The next issue presented is the proper method of income allocation once a unitary business group has been found. Plaintiff contends that the three-factor test prescribed in section 304 of the Act does not fairly represent its business activity in Illinois. Therefore, it is eligible for alternative allocation under the Act. We disagree.

Section 304(a) of the Act prescribes combined apportionment of unitary business group income. (Ill. Rev. Stat. 1979, ch. 120, par. 3 — 304(a).) This apportionment method determines the percentage of income attributable to and taxable by Illinois by calculating three factors: Illinois property in proportion to all group property, Illinois payroll in proportion to all group payroll, and Illinois sales in proportion to all group sales. The average of these factors represents that portion of the income taxable by Illinois. This method is the “presumptively proper method of apportionment; [the] formula supplies the ‘benchmark’ for a fair and consistent apportionment formula.” Citizens Utilities Co., Ill Ill. 2d at 52.

Filtertek contends that the allocation of income arrived at by using the statutory three-factor test does not fairly represent the extent of its business activities in Illinois and that it is eligible for a separate accounting as an alternative allocation under section 304(e)(1) of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 3 — 304(e)(1)). Filtertek points out that its income in Illinois under the three-factor formula increased 561% in 1980 and 807% in 1981 over its original reported income. However, “bare percentages without explanation are not helpful” to a determination of this issue. Filtertek must show why the application of the formula to its business yields a distorted result. Citizens Utilities Co., Ill Ill. 2d at 53.

Filtertek initially disputes the standard to be applied when seeking relief under section 304(eXl) of the Act. The hearing officer applied the standard set out in the regulations under section 304(e). (See 86 Ill. Adm. Code §100.3700(aX4) (1985).) Under this regulation, relief is only granted when the taxpayer demonstrates by clear and cogent evidence that apportionment operates unreasonably and arbitrarily in attributing to Illinois a percentage of income which is out of all proportion to the business transacted in Illinois. While Filtertek is correct in pointing out that this regulation became effective after the period involved here, the regulation merely codified the standard set by the Supreme Court. “The company had the ‘distinct burden of showing by “clear and cogent evidence” that it [formula apportionment] results in extraterritorial values being taxed.’ ” (Exxon Corp. v. Wisconsin Department of Revenue (1980), 447 U.S. 207, 221, 65 L. Ed. 2d 66, 80, 100 S. Ct. 2109, 2119, quoting Butler Brothers v. McColgan (1942), 315 U.S. 501, 507, 86 L. Ed. 991, 996, 62 S. Ct. 701, 704.) The standard was set but not codified during the tax years in question. Clear and cogent evidence is required for relief under section 304 of the Act.

The hearing officer found that Filtertek did not show by clear and cogent evidence, nor even by a preponderance of the evidence, that application of the three-factor formula did not fairly represent the extent of its business activity in Illinois. The record reveals that the Illinois activities of Filtertek included sales and marketing, research and development, contracting, some manufacturing, shipment of all its products and 90% of Puerto Rico’s products, billing and collection on all these products, quality control, and central management. The only activity carried on in Puerto Rico was the balance of the manufacturing. Filtertek’s contention that lower payroll and property costs in Puerto Rico distort the formula apportionment is unconvincing. Since a unitary business group has been found, payroll and other factors from Filtertek may have indirectly contributed to the production in Puerto Rico. The fact that this possibility may not be reflected in Filtertek’s accounting does not by itself make formula apportionment inapplicable. See Container Corp., 463 U.S. at 182, 77 L. Ed. 2d at 564, 103 S. Ct. at 2949.

In the face of such extensive business activity in Illinois, we cannot say that Filtertek’s share of the unitary group’s income was grossly distorted. Since Filtertek’s Illinois business activity was not shown by clear and cogent evidence to be unfairly represented by application of the three-factor formula, Filtertek is not eligible for alternative allocation under section 304(e) of the Act.

Filtertek also contends that, in applying the three-factor test to the unitary group income, the Illinois sales are overstated by the inclusion of sales receipts from products manufáctured in Puerto Rico, sold to Filtertek, and resold to out-of-State customers.

The hearing officer found that the sales between Puerto Rico and Filtertek were properly excluded from the denominator (all group sales) of the sales factor. However, the subsequent sales by Filtertek were included in the numerator (Illinois sales) of the equation. According to the formula, a taxpayer’s sales are to be placed in the numerator under two circumstances. First, sales made to Illinois customers are considered within the State. (Ill. Rev. Stat. 1979, ch. 120, par. 3— 304(a)(3)(B)(i).) Sales are also attributable to Illinois if “[t]he property is shipped from an office, store, warehouse, factory or other place of storage in this State and *** the person is not taxable in the state of the purchaser.” Ill. Rev. Stat. 1979, ch. 120, par. 3 — 304(a)(3)(B)(ii).

Filtertek characterizes the questioned transactions as sales by Puerto Rico, which are merely transshipped through Illinois to destinations outside Illinois. Puerto Rican products were usually stored in Illinois one or two days before shipment to the customer. If an order sent from Puerto Rico was only partial, Filtertek would store the product until a complete order for the customer could be filled.

The hearing officer’s findings do not support this characterization. Filtertek purchased and held title to the products from Puerto Rico. Filtertek was also responsible for reselling the product to out-of-State customers and for storing the product until delivery to the customers. Finally, Filtertek assumed responsibility for delivery or quality problems and for billing and collection functions. In short, the transactions involved more than “temporary ownership” of the products by Filtertek. The sales were actually made by Filtertek.

The sales being attributable to Filtertek, the next step is to determine whether or not the sales can be taxed by Illinois. Under section 304(aX3)(BXii) of the Act, two elements must be proved: (1) the property was shipped from some place of storage in Illinois; and (2) the person (i.e., Filtertek) was not taxable in the State of the purchaser. Ill. Rev. Stat. 1979, ch. 120, par. 3 — 304(a)(3)(BXii).

Although Filtertek stresses the almost immediate reshipment of the products, the length of time spent in storage is unimportant to our analysis. Nowhere does the statute require a minimum storage time. All that is required is some time spent in storage at an Illinois facility. The hearing officer’s finding that the goods were held in storage, at least for short periods of time, at the Filtertek facility is not against the manifest weight of the evidence and will not be disturbed.

The hearing officer also found that Filtertek was not taxed in the destination States of the products. Filtertek presented no evidence to the contrary. In fact, Filtertek’s tax returns for 1980 and 1981 showed 100% of the sales in issue taxed in Illinois. In the absence of any contrary evidence, the hearing officer’s finding cannot be against the manifest weight of the evidence. Since both requirements under section 304(a)(3)(B)(ii) were fulfilled, the sales were properly added into the sales factor numerator. These findings will not be disturbed.

Filtertek finally contends that no deficiency should be assessed for 1980 because the statute of limitations had run before notice of deficiency was issued by the Department. Filtertek argues that the agreement to extend the limitations period, signed by both parties, was invalid because of a lack of communication of acceptance by the Department. We disagree.

The Department has three years from the date of a taxpayer’s filing to issue a notice of deficiency for the tax year. (Ill. Rev. Stat. 1979, ch. 120, par. 9 — 905(a)(1).) However, this period can be extended by a written agreement between the taxpayer and the Department. (Ill. Rev. Stat. 1979, ch. 120, par. 9 — 905(f).) On April 30, 1984, Filtertek and the Department signed such an agreement. However, the Department, contrary to its own regulations, did not mail to Filtertek an executed duplicate of the agreement. Filtertek contends that this failure to communicate acceptance makes the agreement invalid. Consequently, the notice of deficiency, which was issued after the statute of limitations would have run, should not be assessed against Filtertek.

We agree with Filtertek that this is analogous to a common-law contract issue. When a statute is enacted which covers an area previously covered by the common law, the statute will be construed as adopting common law, absent clear and specific language showing that the legislature intended a change in the common law. (Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 956.) Section 905(f) of the Act, which provides for the extension agreement, contains no such language of legislative intent to change the common-law rules of contract construction. Ill. Rev. Stat. 1979, ch. 120, par. 9 — 905(f).

Filtertek contends that an agreement was never reached because the Department never communicated acceptance of Filtertek’s offer to extend. The facts of this case do not support Filtertek’s depiction of the transaction. As Filtertek admits in its brief, the Department requested that Filtertek execute the extension agreement. This fact casts the Department in the role of the offerer, not that of the offeree, as Filtertek contends. This being the case, Filtertek was required to communicate acceptance of the Department’s offer. Filtertek did communicate acceptance by executing and returning the agreement to the Department. At that point, the transaction was completed, and no further action by the Department was required. The Department made an offer, and Filtertek communicated acceptance of the offer. A binding agreement was created.

Filtertek’s reliance on the Department’s regulation is also misplaced in light of the facts. The regulation provides in part that “[a]fter proper execution and submission by the taxpayer, the consent will become effective upon acceptance and authorized execution on behalf of the Department, after which one executed duplicate copy will be mailed to the taxpayer.” (Emphasis added.) (86 Ill. Adm. Code §100.9070(f) (1985).) This regulation contemplates an offer by the taxpayer and acceptance by the Department and is therefore inapplicable to this transaction.

A meeting of the minds is evident here. There has been an offer by the Department, an acceptance by Filtertek, and a communication of the acceptance to the Department. This is adequate to find a binding agreement. Therefore, we find that the period in which the Department could issue a notice of deficiency was properly extended and that the notice was issued on a timely basis.

For the reasons stated above, we affirm the judgment of the circuit court of McHenry County.

Affirmed.

NASH and REINHARD, JJ., concur.