author: JUSTICE LEWIS

text:
    SERVICE ADHESIVE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hayward Rorie, Appellee).
    First District (Industrial Commission Division)
    No. 1—91—0656WC
    Opinion filed February 28, 1992.

      Terrance J. Van Driska and Mark A. Potter, both of Chicago, for appellant.

      Guth & Coughlin, Ltd., of Chicago (Glen J. Guth, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Hayward Rorie, filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, par. 172.36 et seq.) (the Act), in which he alleged that he had contracted leukemia as a result of his exposure to the chemical benzene while in the course of his employment with the respondent, Service Adhesive Company. The arbitrator found the claimant’s leukemia was causally connected to his occupational exposure to benzene during the course of his employment and awarded the claimant 4222/7 weeks for temporary total disability, permanent and total disability, and medical expenses in the amount of $12,905. On appeal, the Industrial Commission (the Commission) affirmed the decision of the arbitrator, and the circuit court of Cook County confirmed the Commission’s decision. The respondent appeals. We affirm for the reasons set forth below.

At the hearing before the arbitrator, the claimant testified that he was married and that he had two children. The claimant had worked for the respondent as a glue maker from 1979 until April or May 1981. Prior to his employment with the respondent, he had worked for three months for Ingrid Plastics in shipping, and before working for Ingrid, he had been employed by Martin Box Factory.

According to the claimant, he had only a tenth-grade education, but in the course of his employment with the respondent, he was taught to read written formulas for making glue. These formulas required the claimant to use certain chemicals to manufacture the glue, and he recalled that the names of some of these chemicals were formaldehyde and benzene. The formulas for the different types of glue were given to him by his supervisor, Robert Harris, and the formulas were returned to his supervisor when he was finished.

In making different glues, the claimant extracted a chemical from a 55-gallon drum into a three- or five-gallon pail and poured the chemical into the the top of a mixer with the other ingredients called for in the formula for the glue. When the claimant poured the chemical into the mixer, the chemical “splashed over everything.” One of the drums from which the chemical was removed was black and was marked “benzene” in white and gray lettering engraved on the top of the drum. The claimant used the liquid from the drum labelled “benzene” once or twice a day.

The claimant performed his job duties in the “cold glue room,” i.e., a separate room where the glue was made without heat. The claimant worked at making glue eight hours per day, five days a week, and he worked a couple of hours of overtime every week. The cold glue room had one window in it. In performing his work, the claimant wore cloth gloves, but he did not wear a mask over his face. In addition, the respondent did not provide a shower to remove the chemicals from his body. When the claimant poured the benzene into the top of the mixer, he became dizzy and weak from inhaling the fumes, and his skin on his hands and face itched and burned.

In April or May of 1981, the claimant saw Dr. Guralnick for hemorrhoid problems, and at that time, he was admitted by the doctor to Westlake Community Hospital for a hemorrhoidectomy. While hospitalized, the claimant called the respondent and talked to the secretary, Gerry, and informed her of his hospitalization. He asked Gerry to notify his supervisor. Gerry asked the claimant what hospital he was in and he told her.

During his hospitalization at Westlake, Dr. Krasnow took a blood sample from the claimant. Because an analysis of the blood sample revealed an abnormality, the claimant was referred to Dr. Messmore at Loyola University. The claimant has been treated by Dr. Messmore since that time. In 1981 and 1982, the claimant saw Dr. Messmore every week and in 1983 and 1984, every other week. In 1985, the claimant was readmitted to the hospital for chemotherapy. After this hospitalization, the claimant saw Dr. Messmore every other week in 1986 and 1987. After 1987 and until the current time, the claimant visited the doctor once a month. At each of the claimant’s visits, the doctor takes a blood sample to monitor his condition. The claimant had been hospitalized seven or eight times over the last seven years.

In 1981, the claimant was very sick, weak and dizzy. In addition, he lost weight until he was only 117 pounds. The claimant testified that he has not worked for the respondent since April or May 1981, and that he has not looked for employment as his doctor told him he could not work due to his illness.

When the claimant worked for the respondent, there were seven persons employed, including the bosses. Other workers who were employed when the claimant worked for the respondent were William Bosley, Glen Bosley and Lavelle Chandler. According to the claimant, William Bosley usually did deliveries and pickups for the respondent, but upon occasion, Bosley would help out with making the glues.

The claimant admitted that he has sickle cell anemia trait, and that two of his sisters and his mother also have this condition; however, no other family members have leukemia. Before the claimant worked for the respondent, he never experienced the symptoms he had in 1981.

William Bosley testified that he had worked for the respondent from 1967 until 1982. When he was first employed by the respondent, he was a truck driver, but in 1970 or 1971, Bosley became a foreman. As foreman, Bosley was the “main cook,” and he did “all of the cooking in the bag room.” Bosley explained the term “cooking” referred to the mixing of the different chemicals used in the making of the type of glue. To make the glues, Bosley used formulation cards. Because of his duties, Bosley was familiar with the chemicals used by the respondent in the glues. Some of the chemicals Bosley used for making glue were formaldehyde, benzene, caustic potash, caustic soda, paraffin wax, and “VHP.” These chemicals were delivered to and stored on the premises of the respondent. Bosley described the containers in which the chemical benzene came in as being a 55-gal-lon, two-tone, grayish drum with the name of the chemical on the drum by either a label or an engraved stamp on top. If the drum had a label on it, the label was yellow. According to Bosley, whether the drum had a label or was engraved depended on the source of the chemical.

Bosley cooked for the respondent until the respondent got a tractor-trailer in 1978. After that time, he resumed driving a truck for the respondent. However, whenever the truck was not running, Bosley helped make glue, and he did so during the time that the claimant was employed by the respondent.

In addition to the foregoing testimony, the claimant offered into evidence the medical records of Westlake Community Hospital and Foster McGaw Hospital (Loyola University) and the evidence deposition of Dr. Daniel Hryhorczuk. In Dr. Hryhorczuk’s depositen, taken on December 22, 1988, the doctor testified that his specialty is occupational medicine and clinical toxicology. The doctor explained that occupational medicine deals with the diagnosis, treatment and prevention of work-related illnesses, while clinical toxicology deals with the diagnosis and treatment of poisons.

Dr. Hryhorczuk first saw the claimant on June 24, 1987. As part of his examination of the claimant, the doctor reviewed the claimant’s medical records. Dr. Hryhorczuk was given a history by the claimant, in which the claimant told the doctor that in February 1981, he began experiencing weakness, weight loss, dizziness, fever and night sweats. In May 1981, the claimant went into the hospital at Westlake Community Hospital for a hemorrhoidectomy, and during this hospitalization, he was found to have an abnormal blood count. Subsequently, the claimant was admitted to Loyola University’s Foster McGaw Hospital for further work-up. A bone marrow biopsy done at Foster McGaw Hospital revealed the claimant had acute myelocytic leukemia. At that time, the claimant underwent induction therapy for this condition.

The claimant was readmitted to Foster McGaw Hospital in July 1981 for consolidation therapy. In November 1981, the claimant was hospitalized for treatment to his right eye, which was also related to his leukemia. In March 1985, the claimant suffered a relapse of his leukemia and received reinduction therapy. In addition to the leukemia, the medical records revealed that the claimant also is positive for sickle cell trait.

The claimant told the doctor that he smoked one pack of cigarettes per day for 16 years, but that he quit smoking several years ago. The claimant admitted that he occasionally drank alcohol, but he denied intravenous drug abuse. The claimant’s work history given to the doctor was consistent with his testimony at the arbitration hearing, i.e., that he worked for Martin Brothers Box Manufacturing Company as a machine operator from 1976 to 1978, and that he worked for Ingrid Blasting Company in the shipping department for three months in 1979. The claimant was not exposed to chemicals at either of these places of employment.

The doctor was informed that the claimant had worked for the respondent as a glue maker from September 1979 until April 1981, and that his duties included mixing ammonia, formaldehyde, chlorathane, caustic soda, potash powder and benzene for the production of glue. The claimant told the doctor that he carried three- to five-gallon pails of liquid solvents from 55-gallon drums and poured the liquid into a mixer. The claimant handled a few gallons of benzene per day, and he inhaled the vapors of the benzene, which made the claimant dizzy and intoxicated. This work was performed in a cold glue room that was 50 feet by 30 feet by 15 feet, and the room had two windows, no exhaust fans, and a door which was open during the summer months. The claimant was equipped with cloth gloves and a work uniform by the respondent for his job, but no shower facilities or medical surveillance was provided. The claimant occasionally splashed chemicals on the cloth gloves.

The doctor was informed that the claimant had no cancer in his family. The doctor’s findings regarding the claimant were based upon the claimant’s history, the doctor’s examination, and the claimant’s medical records. The doctor found that the claimant suffers from acute myelocytic leukemia, which was in remission at the time of the doctor’s examination. In the doctor’s opinion, the claimant’s leukemia was most likely caused by the claimant’s occupational exposure to benzene.

Dr. Hryhorczuk explained that acute myelocytic leukemia is a malignancy of the bone marrow which affects the myelocytic cell line. A person who has this condition can go into remission with therapy, i.e., there is a disappearance of the signs and symptoms of the disease, and a remission may last for months or for years. However, the doctor stated that the claimant’s condition was permanent, and that there is no cure for his leukemia. In the doctor’s opinion, the claimant could work at a desk job or from home, but he is severely restricted in the kinds of work he can do, and he would not advise the claimant to work in areas where he may sustain trauma, where he may be exposed to infectious agents or where he is required to do heavy physical labor. In addition, the claimant will require continued medical care and observation, in that he will require outpatient visits to monitor his blood count; he will need treatment of complications as they arise; and he may require further therapy for a new onset of the leukemia. The claimant’s need for continuous medical care may interfere with or make continuous employment difficult. Dr. Hryhorczuk stated that there was no evidence linking sickle cell trait with an increased risk of leukemia.

On cross-examination, Dr. Hryhorczuk explained that there are various types of leukemia, but that the claimant’s type is caused by benzene. The doctor believed that, while there is no medical certainty, medical science knows with a “high probability” what the causes of leukemia are. With the type of leukemia the claimant has, the route of exposure to the benzene is usually through inhalation and skin contact. Dr. Hryhorczuk did not believe that cloth gloves were an adequate barrier to prevent skin contact, and, in fact, the cloth gloves would retain the benzene and result in higher exposure. The doctor explained that a person with acute myelocytic leukemia may have mild symptoms of the leukemia for weeks or months before there is clinical recognition of the condition, but in his experience, the symptoms would not be present for years prior to discovery. Further, in acute forms of leukemia, such as here, “they’re [acute forms of leukemia are] fairly aggressive and present with symptoms fairly soon.” Dr. Hryhorczuk was unaware of any epidemiologic studies linking smoking with leukemia. Dr. Hryhorczuk admitted that the claimant had no symptoms of the disease at the time of his examination; however, he explained that patients may go into prolonged periods of remission.

The medical records of the hospitals, which were admitted into evidence, corroborated the claimant’s testimony that he went into the hospital for a hemorrhoidectomy on May 14, 1981. At the time of his admission into the hospital, the claimant was 6 feet 1 inch tall and weighed 165 pounds. A pathology report of a bone marrow biopsy done on May 16, 1981, gave a diagnosis of acute myelomonocytic leukemia. At Foster McGaw Hospital, the claimant’s acute myelomonocytic leukemia was confirmed on June 9, 1981. The claimant was treated with chemotherapy for his leukemia, and in November 1981 he was found to be in remission. In 1985, the claimant had a relapse of his leukemia and was again given chemotherapy, which caused him to have a second remission. In 1987, the claimant was still in remission and had been in remission for two years. The medical records reflected that for his leukemia the claimant’s treating doctor from Foster McGaw Hospital was Dr. Messmore.

Robert Harris testified for the respondent that he had been employed by the respondent during the claimant’s period of employment. During that time, Harris was production manager and the claimant’s supervisor, and as such, he was familiar with the chemicals used by the respondent. Harris denied that the chemical benzene was used by the respondent from 1979 to 1981, but he stated that a chemical called benzoflex was used. According to Harris, the benzoflex did not contain any benzene by-products. Harris also testified that the claimant did not inform him personally that he was ill from working with materials at the company.

On cross-examination, Harris admitted that written formulas, which gave the contents of the products, were used by the respondent. Harris did not bring any of the formulas with him to corroborate his testimony.

Dr. William Brice Buckingham testified in his evidence deposition of May 18, 1989, that he had examined the claimant on February 10, 1988. His clinical findings on that date revealed that the claimant was 43 years of age, well developed, well nourished, cooperative, 74 inches tall, and 206 pounds. He did not find the claimant acutely or chronically ill on the date of his examination. On the basis of the doctor’s clinical findings and laboratory findings, he found no evidence of a disease process. In his opinion, the claimant could be actively employed based upon his findings.

On cross-examination, Dr. Buckingham stated that he did not know Dr. Hryhorczuk, and that he did not have a specialty in clinical toxicology. The doctor testified that he had treated patients with bone marrow malignancies, bone marrow suppression, and bone marrow hyperplasia.

From the foregoing evidence, the arbitrator found the claimant’s acute myelocytic leukemia was causally connected to his industrial exposure to the chemical benzene while employed by the respondent. The arbitrator awarded the claimant temporary total disability, permanent and total disability and medical expenses for his condition. The Commission subsequently affirmed the arbitrator’s decision, and the Commission’s decision was confirmed by the circuit court.

On appeal, the respondent contends that the Commission’s decision was against the manifest weight of the evidence. Under this issue, the respondent specifically argues that the Commission erred in finding that (1) the claimant was exposed to the chemical benzene during the course of his employment, (2) timely notice of the claimant’s condition was given to the respondent, (3) the claimant is permanently and totally disabled as a result of his condition, and (4) the claimant was entitled to $12,905 in medical expenses. The respondent also contends that it was denied due process of law by the Commission, as the arbitrator did not make specific findings of fact and conclusions of law as required by statute but instead merely signed a document containing finding of facts and conclusions of law which was prepared by the claimant’s attorney. In response to the respondent’s issues, the claimant asserts initially in his brief that the respondent has waived the issues of exposure to benzene, timely notice, medical expenses, and due process because it has not cited to authority or to the pages of the record in support of its arguments, and therefore, the respondent’s brief is not in conformance with Supreme Court Rule 341(e)(7). (134 Ill. 2d R. 341(e)(7).) The claimant is correct, and under the supreme court rule and the case law, this court is not required to consider those issues not supported by citation to authority or to references in the record. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) However, the respondent did cite to authority on the issue that the Commission’s decision that the claimant is permanently and totally disabled is against the manifest weight of the evidence, and this issue must be addressed.

Further, despite the respondent’s failure to cite authority, we will, in our discretion, consider two of the issues raised by the respondent, i.e., the respondent’s issue of whether the claimant was exposed to benzene during the course of his employment and the issue of whether timely notice of his condition was given to the respondent. With regard to the issue that the Commission’s finding that the claimant was exposed to benzene during the course of his employment was against the manifest weight of the evidence, the respondent asserts that the claimant’s evidence that he was exposed to benzene during his work was contradicted by the respondent’s witness, Robert Harris. The respondent contends that Harris was a more credible witness, but the respondent supports its assertion with facts not of record. In absence of a stipulation, facts outside the record cannot be considered on appeal. People v. Haas (1981), 100 Ill. App. 3d 1143, 427 N.E.2d 853.

It is well established that it is the province of the Commission to resolve disputed questions of fact, including those of causal connection; to draw permissible inferences; and to judge the credibility of the witnesses. (Beeler v. Industrial Comm’n (1989), 179 Ill. App. 3d 463, 534 N.E.2d 408.) Unless the Commission’s decision is contrary to the manifest weight of the evidence, its determination will not be overturned on appeal. (Beeler v. Industrial Comm’n (1989), 179 Ill. App. 3d 463, 534 N.E.2d 408.) We do not find that the Commission’s determination that the claimant was exposed to the chemical benzene while employed by the respondent was against the manifest weight of the evidence.

At arbitration, the claimant and William Bosley both testified that the chemical benzene was used in the mixing of different glues. Both witnesses testified that they had worked with written formulas which listed the chemicals involved in making the various glues. Each of the two witnesses stated that the benzene was kept in a 55-gallon drum and that the chemical was removed from the drum into three- and five-gallon pails as needed. While the claimant’s and Bosley’s description of the 55-gallon drums containing benzene differed, the discrepancy was explained by the fact that the chemical came in different containers when it was obtained from a different source. In contrast, the respondent’s witness, Robert Harris, testified that there were written formulas for the glues, but that the chemical benzene was not used by the respondent in the manufacturing of the glues. Neither the written formulas nor the labels from the drums were introduced into evidence by either party. Thus, the arbitrator and in turn the Commission were left to decide which of the witnesses was more credible. The Commission determined that the claimant’s and Bosley’s testimony was more credible, and since this is the Commission’s province, its decision in this regard will not be overturned on review.

In its second issue, the respondent contends that the Commission’s decision that it was given timely notice of disablement by the claimant was against the manifest weight of the evidence, as the respondent was not given any notice by the claimant. The respondent argues that the evidence revealed that the claimant called the office of the respondent and talked to a secretary by the name of “Gerry”; that the claimant informed the respondent that he was not able to come to work because he was hospitalized for treatment of his hemorrhoids; and that this notification failed to inform the respondent that the claimant had a disease which resulted from his occupational exposure to benzene during his employment with the respondent. The respondent also contends that it was prejudiced by the claimant’s failure to give it timely notice of his disablement, as it was unable to have the arbitrator conduct an on-site inspection of the respondent’s premises because the respondent went out of business before the date of the arbitration hearing.

In the Commission’s decision, it did not address directly the issue of notice in any of its findings of facts and conclusions of law. The only reference to be found in the Commission’s order which possibly related to notice was where the Commission stated:

“Petitioner stated that in April 1981, he telephoned his supervisor, William Harri [sic], from Westlake Community Hospital, spoke to a secretary named ‘Gerry’ and informed her that he was in the hospital.”

Although the Commission did not directly address the issue of notice, it considered this matter indirectly. The Commission, after making separate findings on several issues, affirmed the arbitrator’s decision as to all other matters. In the arbitrator’s decision, the arbitrator found that the claimant’s telephone call from the hospital constituted timely notice of his occupational illness to the respondent. Thus, by affirming the arbitrator’s decision, the Commission indirectly found that the claimant had given timely notice of his occupational illness to the respondent.

While the evidence in the record did not support the determination that the claimant’s telephone call to the respondent was notice of his occupational disease, nevertheless, the respondent’s issue regarding lack of notice must fail. It has been held that a reviewing court can affirm the Commission’s decision if there is any legal basis in the record to support the Commission’s decision regardless of the Commission’s findings or reasoning. (General Motors Corp. v. Industrial Comm’n (1989), 179 Ill. App. 3d 683, 534 N.E.2d 992.) Here, regardless of the Commission’s findings, the issue of notice, or the lack thereof, is resolved against the respondent based upon the law and the record.

The statute provides as follows with regard to notice:

“There shall be given notice to the employer of disablement arising from an occupational disease as soon as practicable after the date of the disablement. If the Commission shall find that the failure to give such notice substantially prejudices the rights of the employer the Commission in its discretion may order that the right of the employee to proceed under this Act shall be barred.
*** Notice of the disabling disease may be given orally or in writing. In any case, other than injury or death caused by exposure to radiological materials or equipment, unless application for compensation is filed with the Commission within 3 years after the date of the disablement, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application shall be barred.” (Ill. Rev. Stat. 1983, ch. 48, par. 172.41(c).)

From the foregoing language, it is clear that there is no definite time or prescribed form for giving notice, and that the key phrase in the statute is that notice is to be given “as soon as practicable after the date of the disablement.” (Crane Co. v. Industrial Comm’n (1965), 32 Ill. 2d 348, 350, 205 N.E.2d 425.) The statute further established that a claim will not fail for lack of timely notice to an employer unless (1) the employer is prejudiced by the failure or (2) the employee fails to file an application for adjustment of claim within three years from the date of disablement.

As was noted previously, the record reflects that the respondent did not receive notice of the claimant’s occupational disease prior to the filing of his claim. Because we agree with the respondent that timely notice of the claimant’s disabling disease was not given but disagree that the failure to give notice bars the claimant’s petition, the issue remains as to whether the claimant was otherwise barred from having his claim considered by the Commission.

Initially, we consider whether the respondent was unduly prejudiced by the failure to receive timely notice of the claimant’s condition. The respondent contends it was prejudiced because it went out of business prior to the arbitration hearing, thereby making it impossible for the arbitrator to conduct an on-site inspection. There was no evidence presented at arbitration that the respondent was out of business. Therefore, since this was a matter outside of the record, it cannot be considered on appeal. (People v. Haas (1981), 100 Ill. App. 3d 1143, 427 N.E.2d 853.) The respondent presents no other cogent argument as to why it was prejudiced by the lack of notice. The record does not reflect any prejudice to the respondent. The respondent presented a witness who testified that there was no benzene used in the manufacturing of the glues at the time the claimant was employed. The respondent also adequately cross-examined the claimant’s witnesses. In addition, we note that the record reflects that the claimant’s application for benefits was filed in December 1983, but that the first arbitration hearing on the claim was not held until September 29, 1988, almost five years later. This provided adequate time for the respondent to investigate the claim, preserve evidence, and prepare a defense to the claimant’s petition. Further, after Dr. Hryhorezuk’s evidence deposition was taken on December 22, 1988, the respondent subsequently obtained the evidence deposition of Dr. Buckingham and presented this evidence at a later arbitration hearing, thus providing the respondent further opportunity to respond and to present a defense. We do not find that the respondent was unduly prejudiced by the lack of notice.

Similarly, the claimant’s application for benefits was not barred as his application for benefits was timely filed with the Commission. Although the date that the claimant became disabled due to his occupational disease is not precisely known from the record provided, the record does establish that the claimant was found to have leukemia in May 1981. There is no medical testimony, other than Dr. Hryhorezuk’s testimony, which causally connected the claimant’s leukemia to his occupational exposure to benzene; however, in the claimant’s application for adjustment of claim, he gives the date of disablement as May 1, 1981, his last date of employment with the respondent. The claimant filed his application for adjustment of claim on December 21, 1983, less than three years after the date of disablement given on his application. Also on his application, the claimant gives his occupational disease as a blood disorder caused by his exposure to the chemical benzene. From this statement, a diagnosis linking his exposure to benzene to his leukemia must have occurred sometime prior to his filing his application and after his last day of work with the respondent in order for him to assert this fact on his application, which would place the respondent on notice as to the claim it would need to defend against. Thus, the claimant met his statutory requirement of filing his application within three years of his date of disablement.

The third issue presented by the respondent is that it was denied due process of law by the Commission. As was noted earlier in this opinion, the respondent cited no cases in support of this contention. In addition, the respondent’s assertions primarily concern deficiencies in the arbitrator’s decision. Without belaboring this issue, suffice it to say that the Commission exercises original jurisdiction and is not bound by the arbitrator’s findings. (United States Industrial Chemical Co. v. Industrial Comm’n (1986), 143 Ill. App. 3d 881, 493 N.E.2d 646.) In the instant case, the Commission set forth its own findings of facts and conclusions of law, and any deficiencies to be found in the arbitrator’s decision (some of which were corrected in the Commission’s order) cannot be found to be a denial of due process of law for the respondent.

Further, the respondent waived this issue because it did not raise this issue before the Commission, and in its brief to the circuit court, it made only a broad statement of being denied due process of law but did not argue this point. Failure to present the issue to the Commission waives the issue before the circuit court and, subsequently, to this court. (Yellow Freight Systems v. Industrial Comm’n (1984), 124 Ill. App. 3d 1018, 464 N.E.2d 1256.) Therefore, we decline to address the respondent’s issue of denial of due process of law before the arbitrator.

The respondent has also waived the issue of whether the Commission erroneously awarded the claimant $12,905 in medical expenses. In the respondent’s statement of exceptions and brief filed with the Commission, the respondent’s complete argument regarding this issue was as follows:

“The Arbitrator awarded $12,905.00 in medical expenses, although, the bill on the face, shows most of the bills were paid through Blue Cross and other insurance carriers.”

This argument is highly lacking in reasons and specifics as to why the medical expenses should not be awarded to the claimant. The Commission, in its order, found that the medical expenses incurred by the claimant were reasonable and necessary, and the respondent’s argument fails to persuade this court otherwise.

Similarly, in the respondent’s brief to the circuit court, it enumerates the issues for consideration by the court. In this listing, the respondent states: “Whether medical bills paid by Blue Cross and other carriers should have been awarded directly to Mr. Rorie.” As was done with the issue of denial of due process, the issue was not argued in the body of its brief. The circuit court did not address the issue of medical expenses in its decision. Failure to adequately argue and present this issue to either the Commission or to the circuit court did not preserve this issue for consideration to this court, and we decline to speculate and consider for the first time on appeal the argument raised by the respondent with regard to the medical expenses.

The respondent’s last issue is whether the Commission’s decision that the claimant was permanently and totally disabled was against the manifest weight of the evidence. The respondent contends that Dr. Buckingham found that the claimant had no disease process present at the time of his examination, and that based upon the doctor’s examination and his laboratory findings, the claimant was able to work as of the date of the examination. The respondent further asserts that Dr. Hryhorczuk’s testimony that the claimant was in remission and that the claimant’s work activities would be sharply limited was insufficient to show that the claimant was permanently and totally disabled.

In determining whether the Commission’s determination was proper, our review is limited to whether the medical evidence in the record was sufficient to support the award, i.e., not against the manifest weight of the evidence. (United Electric Coal Co. v. Industrial Comm’n (1978), 74 Ill. 2d 198, 384 N.E.2d 329; Crane Co. v. Industrial Comm’n (1965), 32 Ill. 2d 348, 205 N.E.2d 425.) The resolving of conflicting medical opinions as to causal connection is the province of the Commission, and unless against the manifest weight of the evidence, the Commission’s decision will not be overturned on review. (County of Cook v. Industrial Comm’n (1974), 57 Ill. 2d 24, 310 N.E.2d 6.) Additionally, judicial deference is given to the Commission in cases where the medical testimony is conflicting. County of Cook v. Industrial Comm’n (1974), 57 Ill. 2d 24, 310 N.E.2d 6.

Dr. Hryhorczuk, a specialist in clinical toxicology and occupational medicine, testified that the claimant’s leukemia was caused by his exposure to benzene in the work place. According to the doctor, although the claimant was in remission at the time of his examination, i.e., asymptomatic, the claimant’s condition was permanent and there was no cure for the claimant. Further, he would not advise the claimant to work in areas where he may sustain trauma, where he may be exposed to infectious agents, or where he was required to do heavy physical labor. At most, the claimant could do desk work or work from his home, but he was severely restricted in the kinds of work he could do. The doctor also testified that the continuing medical treatment required by the claimant’s condition would interfere or would make difficult continuous employment.

In contrast to Dr. Hryhorczuk’s testimony, Dr. Buckingham testified that the claimant was free of any disease process at the time of his examination, and that, in his opinion, the claimant was able to work. However, from the record, it is apparent that Dr. Buckingham did not review any of the claimant’s medical records but based his opinion upon his examination and laboratory findings. Because the claimant was in remission, the claimant would appear to be capable of work. However, a review of the claimant’s medical records would reveal that the claimant has a serious, life-threatening disease, and the Commission resolved the conflict between the medical experts and based its decision upon Dr. Hryhorczuk’s opinion. The Commission’s determination that the claimant was permanently and totally disabled was not against the manifest weight of the evidence.

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

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    MATTHEW GEIER, Plaintiff, v. HAMER ENTERPRISES, INC., et al., Defendants (Hamer Holding Group, Inc., Third-Party Plaintiff-Appellant; Coleman Floor Company, Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—89—0420
    Opinion filed February 21, 1992.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Karl N. Klockars, and Lynn D. Dowd, of counsel), for appellant.
    O’Connor, Schiff & Myers, of Chicago (Elliot R. Schiff and John W. Grove, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

After filing a prior opinion dismissing this cause for lack of jurisdiction, a petition for rehearing was filed by the appellant together with an amicus brief in support thereof. For the reasons which we shall discuss below, we have entered an order vacating and withdrawing our earlier opinion. We now file this new opinion in its stead in which we proceed to decide this appeal on its substantive merits.

Third-party plaintiff, Hamer Holding Group, Inc. (Hamer), appeals from an order of the circuit court dismissing count II of a third-party complaint filed against third-party defendant, Coleman Floor Company (Coleman). We affirm that judgment, after finding that appellate jurisdiction exists under Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Coleman, a contractor, entered into a contract with Hamer to perform certain construction work on a building owned by Hamer. The contract includes section 11.1.4, which states that Coleman must provide the requisite certificate of insurance acceptable to the owner prior to the commencement of work. Rider A to the contract provides that Coleman shall maintain liability insurance for Hamer by adding Hamer as a named insured under Coleman’s comprehensive general liability policy.

In the underlying suit, plaintiff Matthew Geier, an employee of Coleman, filed a Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) and common law negligence action against Hamer. (The record does not indicate whether Hamer ever tendered its defense to Coleman.)

Hamer subsequently filed a two-count third-party complaint against Coleman. Count I seeks contribution from Coleman and alleges that Coleman was negligent in its failure to provide plaintiff with a safe place to work. Count II alleges that Coleman breached its contract by failing to procure insurance as required under rider A of the contract. Hamer seeks an amount equal to the “financial and economic losses” sustained as a result of the breach.

Coleman filed an affirmative defense to count II, alleging that Hamer had waived any breach of contract by allowing Coleman to commence and complete its work without requiring the certificate of insurance.

Based on the affirmative defense of waiver, Coleman filed a section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) motion to dismiss count II of the third-party complaint. The trial court granted the motion to dismiss count II and certified that there was no just reason for delaying enforcement or appeal, pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).

Opinion

We originally filed a decision in this case where we raised the issue of appellate jurisdiction sua sponte, as is our responsibility. (See Chicago Portrait Co. v. Chicago Crayon Co. (1905), 217 Ill. 200, 75 N.E. 473; Geocaris v. Bangs (1968), 91 Ill. App. 2d 81, 234 N.E.2d 17.) We held that because of its contingent nature, the dismissal of a third-party action could not be appealed under Illinois Supreme Court Rule 304(a) (hereinafter Rule 304(a)) (134 Ill. 2d R. 304(a)), without a prior determination of the primary action from which the third-party action is derived. We reasoned that “[t]o determine at this juncture whether Hamer has a contingent right to damages under the breach of contract count would force us to decide an issue which may never have to be decided if Hamer prevails against the primary plaintiff.”

Hamer filed a petition for rehearing, which is supported by an amicus brief filed by the Appellate Lawyers Association. The petition maintains that this court does have jurisdiction to hear the appeal of the dismissal of count II of the third-party complaint. Hamer argues that the dismissal of a third-party claim for contractual indemnity is both final and appealable under Rule 304(a). Hamer argues that permitting the appeal here would serve judicial economy by promoting settlement, and that by denying the appeal, a second trial may be necessary if this court later reverses the dismissal of the breach of contract claim. The amicus argues similarly, and additionally argues that our courts have “accepted [albeit without discussion or analysis] many Rule 304(a) appeals from the dismissals of contribution or indemnity claims while the underlying injury was still pending,” and thus Illinois law reflects “years of prior contrary practice.”

We grant the petition for rehearing to consider these issues.

In Illinois, the cases touching upon the appealability of orders dismissing contingent third-party claims are sparse and those few cases that do address it have not focused on these issues in any depth, but instead concentrate on other collateral questions raised such as the sufficiency of the language providing the necessary certification. In our reconsideration of the issues presented, we have looked again at the few Illinois decisions dealing with this matter, and we have then looked beyond the Illinois decisions and have researched the Federal decisions regarding the Federal appellate jurisdictional rule which is the progenitor and counterpart to the Illinois rule.

In Hawthorn-Mellody Farms Dairy, Inc. v. Elgin, Joliet & Eastern Ry. Co. (1958), 18 Ill. App. 2d 154, 151 N.E.2d 393, which we relied upon in our original opinion, the court dismissed an appeal from an order dismissing a third-party complaint for two reasons: the appropriate language finding no just cause for delaying enforcement or appeal was omitted by the trial court; and, even if the express finding had been included in the order, it would have been an abuse of discretion because an appeal would have been premature since the issues raised by the third-party action would become moot if the defendant/third-party plaintiff subsequently prevailed against plaintiff in the underlying action. “Either way we look at this appeal indicates it should be dismissed.” (Hawthorn-Mellody, 18 Ill. App. 2d at 159.) “[W]e are not to anticipate the liability of the railroad [third-party plaintiff] by deciding its right to damages at the risk of a subsequent not guilty verdict in its favor; nor to determine the railroad’s right to fees and expenses at the risk that later the third-party defendants would question on appeal the amount of allowance of fees and expenses.” Hawthorn-Mellody, 18 Ill. App. 2d at 159.

Similarly, in Markstahler v. Consumers Development & Construction, Ltd. (1977), 52 Ill. App. 3d 918, 921, 368 N.E.2d 791, which we also cited in our original opinion, the court dismissed the appeal from a summary judgment in favor of the third-party defendant, notwithstanding the fact that the trial court had certified the order for appeal under Rule 304(a). The appellate court found no jurisdiction existed to hear the appeal because the third-party defendant’s “liability is not determined but is conditioned upon the outcome of the underlying case.”

In Bohannon v. Joseph T. Ryerson & Sons, Inc. (1959), 15 Ill. 2d 470, 476, 155 N.E.2d 585, the court dismissed an appeal from a directed verdict for the third-party defendant because there was no section 50(2) (now Rule 304(a)) finding, and the underlying liability of the original defendants had never been established. The court held that the appeal was not ripe for decision. (Bohannon, 15 Ill. 2d at 476.) “Nothing in the record as it now stands shows that the underlying liability of Ryerson and Universal, upon which their third party claims were based, has been established.” (Bohannon, 15 Ill. 2d at 475.) “The plaintiff’s allegations of common law negligence and of ordinance violations have not been eliminated from the case. It is therefore impossible to know at this time whether the question that may one day have to be decided will relate to secondary liability at common law, under municipal ordinances, or under the Scaffold Act. Indeed, it is not certain on this record that any issue remains as to the claims of the third party plaintiffs against the third party defendants.” Bohannon, 15 Ill. 2d at 475-76.

See also Nogacz v. Proctor & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, 347 N.E.2d 112 (dismissing appeal from summary judgment for third-party defendant and certified under Rule 304(a), because the summary judgment was not sufficiently final); Aetna Casualty & Surety Co. v. Le Pes (1972), 3 Ill. App. 3d 817, 818, 279 N.E.2d 184 (dismissal of third-party complaint not appealable, even with finding under Rule 304(a), because no “final judgment” exists since there had been no determination “on the merits” of liability of the third-party defendant); Krambeer v. Canning (1961), 33 Ill. App. 2d 208, 211, 178 N.E.2d 147 (dismissal of third-party complaint is not appealable, even with finding under section 50(2), because no “final order” had been entered).

Cf. Fleetwood Development Corp. v. Northbrook Property & Casualty Insurance Co. (1988), 172 Ill. App. 3d 83, 86, 526 N.E.2d 381, citing Hawthorn-Mellody Farms Dairy, Inc., 18 Ill. App. 2d 154, 151 N.E.2d 393 (where the court dismissed the appeal for lack of jurisdiction where the trial court order dismissed the third-party contribution in tort action because there was no primary tort action pending. The court noted that although the primary tort action had previously been dismissed without a Rule 304(a) finding, that tort action could be reinstated at some point. Thus, the reason for dismissing the third-party complaint would no longer apply and defendant would once again have a third-party action against the third-party defendants).

However, in Geocaris v. Bangs (91 Ill. App. 2d at 84), the court held that a third-party complaint for indemnity, when accompanied by the appropriate finding, is final and appealable. The court distinguished Hawthorn-Mellody Farms Dairy, Inc. on the basis that no section 50(2) (now Rule 304(a)) finding was made in that case. Notably, however, the opinion contains no exposition or analysis of the appealability issues.

We further recognize that many other Illinois cases have entertained appeals from the dismissal of third-party actions, reciting that the appeal was had under Rule 304(a), without raising any issue regarding appealability or finality. (See, e.g., Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873; Van Slambrouck v. Economy Baler Co. (1985), 105 Ill. 2d 462, 475 N.E.2d 867; Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 520 N.E.2d 932; Smith v. Interstate Fire & Casualty Co. (1977), 47 Ill. App. 3d 555, 362 N.E.2d 38; Smart v. International Harvester Co. (1975), 33 Ill. App. 3d 241, 337 N.E.2d 68; Parsons v. Kuhne-Simmons Co. (1966), 76 Ill. App. 2d 121, 221 N.E.2d 168.) However, the failure of these opinions to raise or discuss the issue at all leaves them with little precedential value in deciding whether appellate jurisdiction exists in this case. See Steiner v. 20th Century-Fox Film Corp. (9th Cir. 1955), 220 F.2d 105, 107 (analyzing finality under old Rule 54(b) of dismissal of one of several defendants, court found that similar cases which simply took for granted the applicability of Rule 54(b), without any analysis, were not persuasive); In re Fiddler’s Woods Bondholders Litigation (E.D. Pa. 1984), 594 F. Supp. 594, 597 n.3 (cases involving dismissal of third-party complaints and certification for appeal under Rule 54(b) without any discussion of why court believed certification was proper, or with only a “cursory review of its reasons,” are not persuasive).

Thus, Illinois law on the question of the appealability of third-party claims is sparse and fragmented. Some cases appear to preclude their appealability while others for the most part tacitly or by implication can be read to support their appealability. In none of these cases are all pertinent considerations fully discussed or articulated. It is therefore useful to look to the Federal decisions which have more completely and extensively analyzed the pertinent considerations under Federal Rule 54(b), the Federal counterpart to Illinois’ Supreme Court Rule 304(a).

Under the Federal Rules of Civil Procedure, the language and policies underlying Rule 54(b) (28 Fed. R. Civ. P. 54(b) (permitting appeals from final judgments as to fewer than all of the parties or claims)) are substantially similar to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) (previously section 50(2) of the Civil Practice Act) (permitting appeals from final judgments as to fewer than all of the parties or claims). See Ill. Ann. Stat., ch. 110A, par. 304(a), Historical & Practice Notes, at 159, 161 (Smith-Hurd 1985) (Rule 304(a) “substituted *** the policy of Rule 54(b)” and “borrowed much of the language of Federal Rule 54(b)”); see also Ariola v. Nigro (1958), 13 Ill. 2d 200, 203, 148 N.E.2d 787 (section 50(2) is “patterned after Rule 54(b)”); Veach v. Great Atlantic & Pacific Tea Co. (1959), 22 Ill. App. 2d 179, 159 N.E.2d 833 (same).

Under Federal Rule 54(b), the United States Supreme Court in Curtiss-Wright Corp. v. General Electric Co. (1980), 446 U.S. 1, 7, 64 L. Ed. 2d 1, 11, 100 S. Ct. 1460, 1464, announced a two-step process of analysis to determine appealability. The Court explained that the trial court must “first determine that it is dealing with a ‘final judgment’.” (Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 7, 64 L. Ed. 2d at 11, 100 S. Ct. at 1464.) Second, the court must exercise its discretion and determine whether there is any just reason for delaying the appeal, considering various factors which we discuss below. (Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 7, 64 L. Ed. 2d at 11, 100 S. Ct. at 1464.) Under this process, therefore, the trial court must first determine the conceptual finality of the order and then — if conceptual finality is found to be present — it must determine through an exercise of balance and discretion whether to permit a piecemeal appeal from trial court orders involving fewer than all of the claims or parties in a single action.

With respect to the first step, the requirement of finality, the liberalization of joinder of claims “did not require relaxation of the standard of finality in the disposition of the individual adjudicated claims for the purposes of their appealability.” (Sears, Roebuck & Co. v. Mackey (1956), 351 U.S. 427, 432, 100 L. Ed. 1297, 1304, 76 S. Ct. 895, 898.) Rule 54(b) “left unimpaired the statutory concept of finality prescribed by §1291.” (Sears, 351 U.S. at 434, 100 L. Ed. at 1305, 76 S. Ct. at 899, citing 28 U.S.C. §1291 (1952).) The same principle has been followed in Illinois under Rule 304(a). See Ill. Ann. Stat., ch. 110A, par. 304, Committee Comments, at 157 (Smith-Hurd 1985) (“[I]t is not the court’s finding that makes the judgment final, but it is the court’s finding that makes this kind of a final judgment appealable”).

It is crucial then that we first determine whether the dismissal of a third-party action is a final order.

While at common law finality was not enough for appealability, Federal Rule 54(b) provided that there could be finality with respect to fewer than all claims; it was not necessary to have finality with respect to the entire case. This concept of finality focused on individual claims. “It must be a ‘judgment’ in the sense that it is a decision upon a cognizable claim for relief, and it must be ‘final’ in the sense that it is ‘an ultimate disposition of an individual claim entered in the course of a multiple claims action.’ ” Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 7, 64 L. Ed. 2d at 11, 100 S. Ct. at 1464, quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. at 436, 100 L. Ed. at 1306, 76 S. Ct. at 900.

Illinois apparently follows the same pattern with regard to finality. An order is “final” if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties either on the entire controversy or on a separate and definite part of it. Ariola v. Nigro, 13 Ill. 2d at 207 (must be final judgment determining fewer than all the rights and liability at issue); In re Estate of Semeniw (1979), 78 Ill. App. 3d 570, 397 N.E.2d 64 (final judgment is one which finally disposes of rights of parties upon entire controversy or some definite and separate branch thereof). See also Casati v. Aero Marine Management Co. (1976), 43 Ill. App. 3d 1, 356 N.E.2d 826.

Predicated upon this definition of finality, the Federal courts have had no difficulty treating contingent third-party actions as they treat other cases involving multiplicity of claims. The Federal courts uniformly hold that a third-party dismissal is considered a final order under Rule 54(b). See In re Licek Potato Chip Co. (7th Cir. 1979), 599 F.2d 181, 184 (an “order dismissing a third-party complaint but leaving another claim pending is a paradigm of an interlocutory order subject to Rule 54(b)”), citing Courembis v. Independence Avenue Drug Fair, Inc. (D.C. Cir. 1963), 316 F.2d 658, 659; Woodby v. Chesapeake & Ohio Ry. Co. (6th Cir. 1965), 345 F.2d 668, 670 (“[I]t is now clear that an order dismissing a third-party complaint is not a final and appealable decision unless the district court has made the determination required by Rule 54(b)”).

Under the Federal cases, the questions pertaining to contingency and mootness of a third-party dismissal were not to be treated as matters infecting its conceptual finality. Instead, the Federal courts have relegated the factors of contingency and mootness to the second step in determining the appealability of orders under Rule 54(b), i.e., in considering whether the trial court’s certification was an abuse of discretion. In effect, they have treated the question of mootness, which could render the appeal unnecessary, as they have treated the general questions concerning the avoidance of piecemeal appeals where the litigation is comprised of multiple claims or multiple parties.

As under the Federal practice, notwithstanding the contingent nature of a third-party action, in Illinois the dismissal of a third-party action can still be regarded as a “final judgment” in the sense that “such an order finally disposes of the claims of one of the parties in a multiple party suit, [and thus] it is clearly subject to rule 304.” Ill. Ann. Stat., ch. 110A, par. 304, Historical & Practice Notes, at 161 (Smith-Hurd 1985) (“In many cases, it will be in the interest of justice to permit an appeal from the dismissal of the third-party complaint to avoid the risk of having to try some of the same issues twice”); see also Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1978), 63 Ill. App. 3d 1012, 1017-18, 380 N.E.2d 835 (“[I]t has been universally found that section 50(2) and therefore Rule 304(a), applies to orders dismissing third-party complaints” and cases hold that such orders are “not appealable unless the requisite finding of finality has been made”), citing Bohannon v. Ryerson & Sons, Inc., 15 Ill. 2d 470, 155 N.E.2d 585, Campbell v. Joslyn Manufacturing & Supply Co. (1965), 65 Ill. App. 2d 344, 212 N.E.2d 512; Krambeer v. Canning, 36 Ill. App. 2d 428, 184 N.E.2d 747.

Notably, the express inclusion of the term “third-party claim” in Federal Rule 54(b) (which phrase is not included in Illinois’ Rule 304(a)) should not be deemed to play into the question of whether a third-party dismissal is final. The third-party nature of the dismissed claim cannot destroy finality, any more than it could make final that which is not otherwise final. See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217 (the fact that an order states that there is no just reason to delay enforcement or appeal under Rule 304(a) does not make an otherwise nonfinal order appealable); Metzger v. Fitzsimmons (1988), 175 Ill. App. 3d 674, 529 N.E.2d 1179 (same); Veach v. Great Atlantic & Pacific Tea Co., 22 Ill. App. 2d 179, 159 N.E.2d 833 (same).

We move on, then to the second step of the appealability determination. Even if the dismissal of a contingent third-party action can technically be considered a final order, it does not become appealable without weighing and considering its contingency and possible mootness, along with other factors discussed below. The United States Supreme Court explained this second step: Thus, the trial court “may, by the exercise of its discretion in the interests of sound judicial administration, release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. The timing of such a release is, with good reason, vested by the rule primarily in the discretion of the District Court as the one most likely to be familiar with the case and with any justifiable reasons for delay. With equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals.” (Emphasis added.) (Sears, 351 U.S. at 437, 100 L. Ed. at 1307, 76 S. Ct. at 900-01.) “[T]he proper role of the Court of Appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are judicially sound and supported by the record.” (Curtiss-Wright, 446 U.S. at 10, 64 L. Ed. 2d at 12, 100 S. Ct. at 1466.) “The question in cases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case.” Curtiss-Wright, 446 U.S. at 12, 64 L. Ed. 2d at 14, 100 S. Ct. at 1467.

“Once having found finality, the district court must go on to determine whether there is any just reason for delay [of appeal]. *** The function of the district court under the Rule [54(b)] is to act as a ‘dispatcher.’ [Citation.] It is left to the sound judicial discretion of the district court to determine the ‘appropriate time’ when each final decision in a multiple claims action is ready for appeal. [Citation.] This discretion is to be exercised ‘in the interest of sound judicial administration.’ ” (Curtiss-Wright, 466 U.S. at 8, 64 L. Ed. 2d at 11, 100 S. Ct. at 1464-65, quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. at 435, 100 L. Ed. at 1306, 76 S. Ct. at 899.)

Again, with respect to this second step in the appealability analysis, it is helpful to look to the Federal courts’ approach.

The key to the exercise of this discretion lies in the nature of the third-party claim itself. (See Luckenbach Steamship Co. v. H. Muehlstein & Co. (2d Cir. 1960), 280 F.2d 755. See generally 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice, par. 54.36 (2d ed. 1992) (principles applicable in other multiple claim or multiple party cases apply in normal fashion to case involving dismissal of third-party claims).) The liability of the third-party defendant must be dependent on the liability of the third-party plaintiff to the original plaintiff, and thus, the outcome of the third-party action depends upon the outcome of the original action. Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104.

It is the contingent or derivative nature of such claims, and the possibility that their disposition will be rendered moot on the determination of the primary action, which must be evaluated and balanced against competing factors to justify a certification of their appealability.

The discretion which Federal Rule 54(b) confers on a trial court is not absolute, particularly with respect to the certification of third-party actions for appeal. (See Panichella v. Pennsylvania R.R. Co. (3d Cir. 1958), 252 F.2d 452, 454.) The courts consider various factors in determining whether the certification for appeal of a portion of a case is an abuse of discretion. These factors include:

“(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Depending upon the facts of the particular case, all or some of the above factors may bear upon the propriety of the trial court’s discretion in certifying a judgment as final under Rule 54(b).” (Allis-Chalmers Corp. v. Philadelphia Electric Co. (3d Cir. 1975), 521 F.2d 360, 364.)

Other factors include whether an appeal would eliminate unnecessary evidence, confine the issues, shorten the trial, save much expense to the litigants in connection with the preparation for trial and contribute to expediting the trial court’s work. Campbell v. Westmoreland Farm, Inc. (2d Cir. 1968), 403 F.2d 939, 942-43.

The Federal appellate courts have actively monitored the exercise of discretion by the trial judges in their certification under Rule 54(b). The Federal appellate decisions have emphasized a “pragmatic approach focusing on severability and efficient judicial administration.” (Continental Airlines, Inc. v. Goodyear Tire & Rubber Co. (9th Cir. 1987), 819 F.2d 1519, 1525, citing Local P-171 v. Thompson Farms Co. (7th Cir. 1981), 642 F.2d 1065, 1070-71; Solomon v. Aetna Life Insurance Co. (6th Cir. 1986), 782 F.2d 58, 62 (certification for appeal was abuse of discretion where adjudicated and pending claims are closely related and stem from essentially the same factual allegations); McKibben v. Chubb (10th Cir. 1988), 840 F.2d 1525, 1529 (upholding Rule 54(b) certification on basis that separate factual bases applied to third-party and primary actions); Jack Walters & Sons Corp. v. Morton Building, Inc. (7th Cir. 1984), 737 F.2d 698, 703 (appeal is “unencumbered by any facts bearing on the retained claim” in the trial court and thus appellate jurisdiction is proper); Hayden v. McDonald (8th Cir. 1983), 719 F.2d 266 (certification for appeal was abuse of discretion where adjudicated and remaining claims were closely related and based on same set of facts); Morrison-Knudsen Co. v. Archer (9th Cir. 1981), 655 F.2d 962, 965 (“A similarity of legal or factual issues will weigh heavily against entry of judgment under” Rule 54(b)); Cullen v. Margiotta (2d Cir. 1980), 618 F.2d 226, 228 (certification for appeal was abuse of discretion where adjudicated and pending claims are closely related and stem from essentially the same factual allegations); New York v. Amro Realty Corp. (N.D.N.Y. 1990), 745 F. Supp. 832, 840 (Rule 54(b) certification of order dismissing third-party complaint “clearly appropriate” where the claims are separable because “they involve at least some different questions of fact and law and could be separately enforced”).) The Seventh Circuit Court of Appeals explained this approach:

“The recent decisions of this court have experimented with a practical approach based on what we conceive to be the most important purpose behind Rule 54(b)’s limitations — to spare the court of appeals from having to keep relearning the facts of a case on successive appeals. The approach is: if the facts underlying different claims are different, the claims are separate for Rule 54(b) purposes. For if there are different facts (and of course different issues) consideration of the appeals piecemeal rather than all at once will not involve a duplication in the efforts required of the judges to prepare for argument in, and to decide, each appeal. The gains from forcing the consolidation of appeals will therefore be small and will be outweighed by the benefits of an immediate appeal in resolving the parties’ rights with respect to a part of the controversy between them. By the same token, if there is a great deal of factual overlap between the decided and the retained claims, they are not separate, and appeal must be deferred till the latter are resolved.” Jack Walters & Sons Corp. v. Morton Building, Inc., 737 F.2d at 702.

See generally 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice, par. 54.33[2], at 54—194 (2d ed. 1992) (appellate decisions since Curtiss-Wright have adopted a more pragmatic approach).

Thus, a factor which plays a significant role in the present case is that the factual and legal bases of count II of the third-party claim are separate from the factual and legal bases of count I (tort contribution) and the bases of the primary action (Structural Work Act).

See Continental Airlines v. Goodyear Tire & Rubber Co. (notwithstanding possibility of mootness which would mean that Rule 54(b) certification is “ordinarily disfavored,” court finds that the “matters disposed of by the partial summary judgments were sufficiently severable factually and legally from the remaining matters” and thus Rule 54(b) certification was proper under the circumstances of that case).

Notably, some courts have used the separability factor to achieve the opposite result, i.e., finding that the existence of separable claims suggests that no appeal should be taken. See, e.g., United States Fire Insurance Co. v. Smith Barney, Harris Uphan & Co. (8th Cir. 1983), 724 F.2d 650, 652 (holding that certification for appeal was an abuse of discretion because the third-party complaint was totally distinct from the underlying action. “While some evidence might be relevant to both trials, we could not say that the two trials would be so similar that the interests of sound judicial administration require their consolidation”); In re Fiddler’s Woods Bondholders Litigation, 594 F. Supp. at 598 (court refused to certify dismissal of third-party complaint for appeal under Rule 54(b) on the basis that the “issues raised in the third-party complaint are sufficiently distinct and severable” that resolution of them would “provide little, if any, guidance as to resolution of the” primary claims).

However, we find the better view, as expressed by the United States Supreme Court, is that the existence of separability favors appealability. Where the dismissed claims “can be decided independently of each other,” that is, they are not “so inherently inseparable from, or closely related to” the remaining claims, then the trial court does not abuse its discretion in certifying that there exists no just reason for delay of the appeal. (Sears, 351 U.S. at 436, 100 L. Ed. at 1306, 76 S. Ct. at 900.) If the claims still pending are “severable from the claims which [have] been determined in terms of both the factual and the legal issues involved,” such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals, an immediate appeal of the adjudicated claims is proper. Curtiss-Wright, 466 U.S. at 9, 64 L. Ed. 2d at 11-12, 100 S. Ct. at 1465.

In the present case, we find that the entirely separate basis of count II from the remaining counts supports the trial court’s exercise of discretion in certifying for appeal the dismissal order. The third-party contract count rests upon separate factual and legal bases than the tort counts in the primary action and in the third-party action.

Here the contract count involves the identification of the parties to the contract, an interpretation of the contract terms pertaining to procurement of insurance, and any additional evidence establishing a waiver of that contract provision. In contrast, the tort counts concern the work being performed by the injured employee, and the facts surrounding his accident. Count II of the third-party action, therefore, does not involve the same evidence as the counts which remain pending. This supports the trial court’s exercise of discretion in certifying for appeal the dismissal of count II.

Nevertheless, whether the issue being considered for Rule 54(b) certification is separate and distinct from remaining issues “will begin, rather than end, the district court’s certification analysis.” (Corrosioneering, Inc. v. Thyssen Environmental Systems, Inc. (6th Cir. 1986), 807 F.2d 1279, 1283, citing Cold Metal Process Co. v. United Engineering & Foundry Co. (1956), 351 U.S. 445, 452, 100 L. Ed. 1311, 1318, 76 S. Ct. 904, 908.) The court in Corrosioneering found that the claims certified for appeal were separate and distinct from the remaining issues in the case, and that such a conclusion supported the trial court’s determination that the judgment should be certified for appeal. Nevertheless, the court went on to hold that the finding of a “separate and distinct” issue was an insufficient basis to support the Rule 54(b) certification where the possibility of mootness existed. (Corrosioneering, 807 F.2d at 1283.) The court explained:

“For example, a ‘separate and distinct’ issue of contribution or indemnification would likely be unsuitable for Rule 54(b) certification if the related issue of liability, on which the contribution or indemnity would depend, was yet to be resolved in the district court, because a finding on the liability issue in the district court could moot the need for review of the question of contribution or indemnification.” Corrosioneering, 807 F.2d at 1283.

Thus, the possibility of mootness due to the contingent nature of the third-party claim typically weighs heavily in the exercise of discretion in deciding whether to certify the dismissal of a third-party claim for appeal. Mootness is especially likely where a third-party claim is involved since, as discussed above, by its very nature a third-party claim is contingent and dependent upon the still undecided primary action.

In fact, one court went so far as to state that “[t]hird-party claims for indemnity for judgments that may never occur should seldom fall within the narrow exception of Rule 54(b).” (United States Fire Insurance Co. v. Smith Barney, Harris Uphan & Co., 724 F.2d at 653, quoted in In re Fiddler’s Woods Bondholders Litigation, 594 F. Supp. at 597, and Continental Bank v. Caton (D. Kan. 1991), 136 F.R.D. 691.) Similarly, one commentator expressed the view that an abuse of discretion “is likely to be found *** where the order may be rendered moot by the subsequent course of the litigation, as in the case of a dismissal of the defendant’s claim against an impleaded party before the defendant has been found liable to the plaintiff.” Note, Appealability in the Federal Courts, 75 Harv. L. Rev. 351, 362 (1961), quoted in Allegheny Airlines, Inc. v. LeMay (7th Cir. 1971), 448 F.2d 1341, 1343.

Many Federal appellate cases have therefore found it was an abuse of discretion to certify third-party claims for appeal because of the potential mootness. For the same reason, Federal trial court cases have refused to certify third-party claims for appeal. But as noted parenthetically below, each such case is distinguishable, often because of remoteness or factually separable claims.

See, e.g., Corrosioneering, Inc. v. Thyssen Environmental Systems, Inc., 807 F.2d at 1283-84 (holding that the trial court abused its discretion in certifying the judgment in favor of the third-party defendant for appeal under Rule 54(b) because “a finding on the liability issue in the district court could moot the need for review of the question of contribution or indemnification”; however, the court found an “absence of countervailing considerations supporting an immediate appeal” of the indemnity count); United States Fire Insurance Co. v. Smith Barney, Harris Uphan & Co., 724 F.2d at 652 (abuse of discretion to permit appeal of third-party dismissal where there is a “grave concern of mootness”; however, court highlighted that plaintiffs had a particularly “difficult burden to demonstrate” any liability by defendant in the primary action); Panichella v. Pennsylvania R.R. Co., 252 F.2d at 455 (abuse of discretion to permit appeal of summary judgment for the third-party defendant because if the primary plaintiff could not establish the liability of the primary defendant, the third-party action “which is presented on this appeal will become moot”; however, the factual and legal issues in dispute in the primary action were also the key to those in the third-party action and thus the two actions were insufficiently separate).

For trial court cases, see, e.g., Department of Economic Development v. Arthur Andersen & Co. (S.D.N.Y. 1990), 739 F. Supp. 804, 810 (dismissing a third-party complaint but refusing to certify the judgment for appeal under Rule 54(b) since the “same issues remain to be litigated against undismissed third-party defendants”; however, the dismissed causes of action all “revolve[d] around the same basic factual allegations as the surviving ones”); Continental Bank v. Caton, 136 F.R.D. 691 (refusal to certify third-party dismissal for appeal due to mootness); In re Fiddler’s Woods Bondholders Litigation, 594 F. Supp. 594 (same).

We have examined these cases carefully, along with the Illinois cases discussed above. In balance, we find that the considerations operating in those cases do not have the same force in the present case. While finding that the danger of mootness is a highly significant factor in the appealability of the dismissal of contingent third-party actions, we agree with Hamer and the amicus that in the present case other factors, including the separability factor already discussed, outweigh the danger of mootness.

Even if other factors tend to indicate an immediate appeal would not be proper, the United States Supreme Court has held that a trial court might nonetheless exercise its discretion and certify the appeal under Federal Rule 54(b) if the court found that the possibility of settlement, or some other factor, might be “a sufficiently important reason for nonetheless granting certification.” (Curtiss-Wright, 466 U.S. at 11 n.2, 64 L. Ed. 2d at 11 n.2, 100 S. Ct. at 1465 n.2.) There, the Court held that even if there was a lack of separate claims, it could be offset, for example, by a “finding that an appellate resolution of the certified claims would facilitate a settlement of the remainder of the claims.” Curtiss-Wright, 446 U.S. at 8 n.2, 64 L. Ed. 2d at 8 n.2, 100 S. Ct. at 1465 n.2.

Similarly, we agree with Hamer and the amicus that the immediate appeal of the dismissal of count II might very well facilitate a settlement of the remainder of the claims. Ascertaining the party who will ultimately be liable for any judgment entered in the underlying primary action may indeed have a catalytic impact upon possible future settlement negotiations.

In summary, we emphasize again that in another case involving the dismissal of a third-party action, certification for appeal under Rule 304(a) may be an abuse of discretion, particularly due to the possibility of mootness. As one Federal court noted in regard to Rule 54(b), “[t]he variety and number of factors which may be present in any one case highlights [sic] the importance of the [trial] court’s evaluation and articulation of those factors leading to its grant of Rule 54(b) certification.” (Allis-Chalmers, 521 F.2d at 365.) It is only after considerable analysis of the historical roots of Rule 304(a) and section 2 — 406(b), their Federal counterparts, and the particular factual setting of the present case, that we can conclude with certainty that the trial court properly exercised its discretion here.

Accordingly, we find that the trial court did not abuse its discretion when it included the Rule 304(a) language in the order dismissing the third-party complaint, and consequently appellate jurisdiction exists.

We go on, therefore, to consider the merits of the appeal.

Hamer contends that Coleman was required to maintain liability insurance during the performance of the agreement pursuant to section 11.1.5 of rider A to the contract. A motion to dismiss under section 2 — 619 of the Code of Civil Procedure is properly granted where the claim asserted is barred by affirmative matter avoiding the legal effect of or defeating the claim. Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9).

Here, section 11.1.4 of the contract provides:

“Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to the commencement of the Work. These Certificates shall contain a provision that coverages afforded under the policies will not be cancelled until at least 30 days prior written notice has been given to the Owner.”

Section 11.1.5, included in rider A to the contract, provides:

“Contractor shall purchase and maintain during the performance of this Agreement the following insurance with companies rated Best Company A+ or better with the following limits as will protect the Contractor. The owner ***, the Architect, and any Engineers retained by the architect, their agents and employees from claims which may arise out of or result from or in connection with the Contractor’s performance under the Contract, whether such operations be by the Contractor, or by any Subcontractor or by anyone directly or indirectly employed by any one of them, or by anyone for whose acts of them may be liable ***.”

In construing a contract, the primary objective is to give effect to the intent of the parties at the time they entered into the contract. (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453, 517 N.E.2d 1131.) However, the parties may waive a provision placed in the contract for their benefit, including a condition precedent. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 565 N.E.2d 990; Harrington v. Kay (1985), 136 Ill. App. 3d 561, 563-64, 483 N.E.2d 560; Swerdlow v. Mallin (1985), 131 Ill. App. 3d 900, 904, 476 N.E.2d 464; Grill v. Adams (1984), 123 Ill. App. 3d 913, 463 N.E.2d 896.) Waiver is an express or implied voluntary and intentional relinquishment of a known and existing right. (Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 519 N.E.2d 991.) Waiver is an equitable doctrine invoked to further the interests of justice whenever a party initially relinquishes a known right. (Mollihan v. Stephany (1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465.) Waiver of a contractual provision may be established by conduct indicating that strict compliance with the provision will not be required. (Harrington, 136 Ill. App. 3d at 564.) The sufficiency of facts necessary to constitute waiver of a contractual provision is a question of law. Whalen v. K mart Corp, 166 Ill. App. 3d at 343.

In Whalen v. K mart Corp., the court found that the general contractor and landowners had waived the subcontractor’s contractual insurance requirement. (Whalen, 166 Ill. App. 3d at 342.) The contract provided that the “[subcontractor shall not commence work *** until he has obtained all insurances required *** and certificates of insurance [are] delivered to the [contractor.” It also provided that the subcontractor “agrees to procure at his own expense, before the commencement of the work comprehensive general liability” insurance, and the subcontractor was “to immediately and before commencing work deliver such policy or policies or certificates of insurance to the Contractor.” (Emphasis omitted.) (Whalen, 166 Ill. App. 3d at 341-42.) The court held that the general contractor and landowners waived this condition precedent to the subcontractor’s commencing work and receiving payment upon completion. (Whalen, 166 Ill. App. 3d at 343.) The court stated:

“If [a party] has intentionally relinquished a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement.” (Whalen, 166 Ill. App. 3d at 343.)

The contractual provisions here requiring the procurement of insurance are substantially similar to those in Whalen. We find that under the holding in Whalen, Hamer intentionally relinquished its right to rely on those sections of the contract.

Hamer maintains that Whalen does not apply here because the contract language there prohibited the commencement of work until all insurance had been obtained, while no such prohibition was contained in the contract between Hamer and Coleman. Instead, Hamer argues, “continuous action was required.” Hamer urges us to find “separate and distinct obligations” in rider A’s language requiring Coleman to maintain insurance during the project, and in section 11.1.4’s language requiring a certificate of insurance prior to commencement of work. Hamer maintains that a “requirement for a certificate of insurance is distinct from a subsequent requirement to procure and maintain insurance for the duration of the contract.”

In Whalen, however, the contract similarly had a continuing obligation in that it provided that the required insurance could not be canceled or modified before the expiration of 20 days after receipt of written notice by the contractor. (Whalen, 166 Ill. App. 3d at 343.) We will not artificially separate the obligation to procure and maintain insurance under the contractual language here. Coleman could not “maintain” the insurance until it had initially procured the insurance.

Hamer also argues that Coleman should not be allowed to benefit from its own misconduct in failing to procure the insurance: However, as we have already stated, parties to a contract may waive provisions placed in the contract for their benefit. Quake Construction, Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 565 N.E.2d 990; Community Convalescent Center of Naperville, Inc. v. First Interstate Mortgage Co. (1989), 181 Ill. App. 3d 996, 1000, 537 N.E.2d 1162; Harrington v. Kay, 136 Ill. App. 3d at 563-64; Lempera v. Karner (1979), 79 Ill. App. 3d 221, 398 N.E.2d 224.

Thus, we hold that the trial court correctly found that Hamer waived any contractual obligation of Coleman to procure liability insurance by its failure to require Coleman to provide certificates of insurance prior to the commencement of work or prior to Coleman’s being paid in full when it completed the job.

In conclusion, for the reasons stated above, we withdraw our previous opinion and file this opinion in its place. The judgment of the circuit court of Cook County dismissing count II of the third-party complaint is affirmed.

Judgment affirmed.

McNULTY, P.J., and MURRAY, J., concur.

      In view of the explicit language quoted from Bohannon regarding the court’s concern with ripeness, we disagree with the historical and practice notes to Rule 304(a), which comment that the court in Bohannon “implied that the order would have been appealable had such a finding been incorporated in the order.” Ill. Ann. Stat., ch. 110A, par. 304, Historical and Practice Notes, at 161 (Smith-Hurd 1985).

       Justice Coccia heard the oral argument in this case. Following his retirement, Presiding Justice McNulty was substituted and has read the briefs and listened to the tapes of oral argument.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY ROSS, Defendant-Appellant.
    First District (1st Division)
    Nos. 1—89—1504, 1—91—1336 cons.
    Opinion filed March 3, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Jillian Cerone-Marisie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempted murder and armed violence (Ill. Rev. Stat. 1987, ch. 38, pars. 8—5, 9—1, 33A—2), for which he received concurrent prison terms of 40 years, and possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 4—103).

Defendant’s conviction for attempted murder and armed violence arose from pointing a handgun at police as he was chased on foot after fleeing from a stolen automobile. We conclude defendant was entitled to instruct the jury on the offense of aggravated assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—2) and therefore reverse the conviction for attempted murder and remand for a new trial. In light of that determination, defendant’s sentence regarding the offense of armed violence must be reconsidered. We affirm defendant’s conviction for that offense as well as for possession of a stolen motor vehicle.

Defendant stole Bernard Jackson’s automobile on June 9, 1988, after first struggling with Jackson in an unsuccessful attempt to steal Jackson’s wallet. Fortuitously, a month later, while driving near the intersection of Roosevelt Road and Independence Boulevard in Chicago, Jackson recognized the automobile by its Missouri dealer’s sticker and notified police.

Chicago police detective Joseph Molitor and his partner located Jackson’s car a few days later and watched defendant enter the car and drive away. The detectives followed. As Molitor drove alongside, they identified themselves to defendant and directed him to stop. Instead, defendant sped away. The detectives pursued. Defendant eventually drove into an alley, struck a telephone pole, and fled on foot. Molitor stopped his car, exited, shouted for defendant to stop, and, when defendant did not do so, gave chase.

Molitor testified at trial that defendant turned toward him while still moving forward and pointed a pistol at him from a distance of approximately 45 feet. Molitor immediately bent down, his revolver at the ready, stood up, and fired three shots, wounding defendant. Defendant stumbled and then resumed his flight but was soon captured. Molitor recovered a loaded pistol from the area where defendant had stood.

Bystanders witnessed the events taking place in the alley. Harry McGhee demonstrated for the jury how defendant turned and pointed a “shiny object” that “looked like a gun” at the detectives. He witnessed defendant wounded by Molitor, and he saw Molitor retrieve a shiny object from the ground. Germaine Jones also saw the man being chased “reach in his pocket *** turn *** and point at” the man chasing him.

Although, based on the above evidence, the State charged defendant with attempted murder and tendered appropriate instructions for that offense, defendant sought to have the jury instructed on the law regarding aggravated assault, as well. Defendant argued the instruction was warranted because, under the facts, aggravated assault could be considered a lesser included offense of attempted murder, offering the jury another option in addition to convicting or acquitting defendant of the charged crime. (See People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) The trial judge denied defendant’s request.

Illinois courts have struggled with the issue of whether a lesser crime may be considered included in a greater offense and whether a need then may arise to instruct the jury accordingly. (See People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633; People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189.) However, in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, the supreme court, acknowledging its decision in People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, outlined the requisite analysis for resolving such issues. The court instructed that the proper examination is not limited to a comparison of the statutory elements of the particular crimes but includes a consideration of the language of the charging instruments and the evidence presented at trial. Bryant, 113 Ill. 2d at 503-04, 499 N.E.2d at 416.

The appellate court applied that analysis in People v. Krueger (1988), 176 Ill. App. 3d 625, 531 N.E.2d 396, appeal denied (1989), 125 Ill. 2d 571, 537 N.E.2d 815, which involved the same argument advanced by defendant here. There, David Krueger was convicted on the indicted charge of attempted murder of Dominic Iasparro based on gunshots which had been fired at Iasparro’s house while Iasparro stood behind sheer curtains. At trial, testimony established that there had been one shot, followed by a pause, and then several more shots. Defendant was unsuccessful in an attempt to instruct the jury regarding aggravated assault.

The appellate court concluded defendant was entitled to the requested instruction in view of the language of the indictment and because the evidence could have supported a conviction for that offense. Specifically, the court noted that, although Iasparro was visible behind the sheer curtains, no shots were fired through the window. A jury could have found a lack of intent to kill as the explanation for that fact. (Krueger, 176 Ill. App. 3d at 629, 531 N.E.2d at 399.) Further, the court observed that the indictment alleged only that gunshots were fired at the residence, not Iasparro. Nothing precluded the jury from concluding that the succession of shots could have put Iasparro in apprehension of an imminent battery to support the offense of aggravated assault. (Krueger, 176 Ill. App. 3d at 629, 531 N.E.2d at 399.) Last, the court observed that, although the indictment did not allege the necessary element of apprehension, that fact was not fatal. The court reasoned an aggravated assault instruction was warranted because the indictment did set out the “main outline” of that offense, the relevant consideration noted in Bryant. Krueger, 176 Ill. App. 3d at 629, 531 N.E.2d at 399.

The analysis of the issue in Krueger is instructive here. As in that case, the evidence here supported the uncharged offense of aggravated assault and, because the language of the indictment contains the main outline of that offense, it was error not to instruct the jury accordingly. Molitor’s testimony was that he immediately bent down upon seeing defendant turn toward him with a shiny object in his hand. That testimony supports the conclusion that the jury could have found Molitor feared being struck by a bullet, the requisite element of reasonable apprehension of a battery, to support a conviction for aggravated assault. The indictment, itself, merely bases the charge of attempted murder on defendant’s actions of “aiming a gun” at Molitor. The scope of that language is sufficiently broad to accommodate the element of Molitor’s apprehension, providing the main outline of the offense of aggravated assault.

The State asserts that application of the analysis endorsed in Bryant, applied in Krueger, and, ultimately, above, is flawed because the supreme court implicitly overruled Bryant in People v. Schmidt (1989), 126 Ill. 2d 179, 533 N.E.2d 818. The State refers to language in Schmidt that an accused “cannot be convicted of an offense that was not charged unless the offense of which he is found guilty is a lesser included offense of the one charged.” Schmidt, 126 Ill. 2d at 183, 533 N.E.2d at 818.

The State is unduly selective in its reading of Schmidt. The court expressly observed that the question addressed there was fundamentally distinguishable from the one it had considered in Dace, which, as we have noted, was the foundation for Bryant. (Schmidt, 126 Ill. 2d at 185, 533 N.E.2d at 819.) Schmidt is easily reconciled with Bryant. Bryant provides the means by which it may be determined whether an uncharged offense may be considered a lesser included offense of a charged one. Schmidt merely proscribes convictions for the uncharged offense when that determination is not met.

The reversal of defendant’s conviction for attempted murder necessitates consideration of the propriety of the length of the sentence for armed violence. Although the trial judge carefully considered the relevant factors in aggravation and mitigation, we nevertheless cannot be certain of the extent to which the attempted murder conviction may have been a factor in sentencing defendant for armed violence. (See People v. Deason (1991), 223 Ill. App. 3d 320.) Both of those convictions were based on defendant’s act of pointing a loaded handgun at a police detective. However, because the trial judge directed that the defendant’s sentence for armed violence would stand regardless of the disposition on appeal concerning the attempted murder conviction, the entire matter is remanded for further proceedings before a different trial judge.

Defendant raises two other issues on appeal.

Defendant contends he was denied a fair trial as a result of the State’s questioning concerning the exoneration of Molitor in a police investigation as to whether Molitor was justified in firing his service revolver. Part of the defense theory was that defendant was unarmed. During cross-examination, defendant’s counsel sought to show Molitor had motive to fabricate defendant’s possession of a weapon by establishing Molitor was aware an investigation would be undertaken. During redirect questioning, the State attempted to rebut the implication by indicating Molitor had been exonerated in the proceedings. The trial judge sustained each of the objections to that line of questioning.

Defendant’s argument provides no reason to disturb his convictions. The State’s questioning was reasonably invited by defense counsel. (See People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44, cert. denied (1984), 465 U.S. 1036, 79 L. Ed. 2d 708, 104 S. Ct. 1310.) More importantly, even assuming the impropriety of the State’s persistence in that questioning, no prejudice was caused defendant in view of the evidence presented at trial.

Defendant also argues that because the State elected not to prosecute defendant with the unlawful use of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24—1.1), and the court entered an order of nolle prosequi on those charges, the convictions for attempted murder and armed violence could not stand as both were premised on wielding the pistol.

Defendant misapprehends the nature of the entry of nolle prosequi. That decision has no res judicata effect on the other charges. (See People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265; People v. DeBlieck (1989), 181 Ill. App. 3d 600, 537 N.E.2d 388.) We therefore find no merit to defendant’s contention.

Affirmed in part; reversed in part, and remanded.

CAMPBELL and MANNING, JJ., concur.