author: JUSTICE DiVITO

text:
    SANWA BUSINESS CREDIT CORPORATION, Plaintiff-Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—4084
    Opinion filed May 18, 1993.

      Sachnoff & Weaver, Ltd., of Chicago (Arnold A. Pagniucci, of counsel), for appellant.
    Arnstein & Lehr, of Chicago (Richard H. Ferri, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Sanwa Business Credit Corporation (Sanwa) wrote five checks to multiple payees on its account with defendant Continental Illinois National Bank (Continental) in connection with four transactions with Golf Car World and Golf Car Leasing (collectively, Golf). Continental debited Sanwa’s account even though one of the co-payees had not endorsed the checks. When Sanwa demanded over a year later that Continental recredit its account, Continental refused. Sanwa then filed suit alleging that Continental had charged its account for items that were not “properly payable,” in violation of section 4 — 401(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 4—401(1)). The circuit court granted Sanwa’s motion for partial summary judgment on liability, but it also granted Continental’s subsequent motions for summary judgment on damages. We affirm.

Club Car (Club) manufactures golf cars; Golf Car World is a Club distributor. In 1986, Sanwa and Golf apparently contemplated that Golf, with financing from Sanwa, would purchase 317 golf cars from Club and sell them to Sanwa, which then would lease them back to Golf under equipment lease agreements (the Agreements). Golf in turn would sublet them to golf courses. To this end, Golf and Sanwa entered four separate transactions for the 317 cars. In transactions No. 1 and No. 3, Golf purchased 165 and 60 cars, respectively, and it leased them from Sanwa for sublet to golf courses for the season. In transaction No. 2, Golf purchased 32 cars, which it leased from Sanwa to be used intermittently as a “tournament fleet.” In transaction No. 4, Golf purchased 60 cars that Sanwa leased directly to a country club. Nothing in the record, however, indicates that Golf sold the cars to Sanwa after purchasing them from Club.

To fund Golf’s purchase of the cars, Sanwa wrote five checks, totaling over $800,000, on its account with Continental; each check was made to the order of Golf and Club as co-payees. Only Golf endorsed the checks, which it deposited at another bank. Golf purchased over 317 cars with checks to Club in amounts different from the Sanwa checks. Golf performed the Agreements for a while, but its owner later filed for bankruptcy. Sanwa recovered only $200,000 because it found only 100 of the cars, which had been scattered all over the country. Sanwa then noticed the missing endorsements, but Continental would not recredit its account for the face value of the checks.

The record contains no bills of sale or title documents, but it does include various other documents, such as the three Agreements between Golf and Sanwa; the agreement between Sanwa and the country club; invoices from Club to Golf and from Golf to Sanwa; the five checks; delivery and acceptance certificates from Golf and the golf courses; lease assignments from Golf to Sanwa for all the subleases; guarantees from Golf’s owner and another person for the three Sanwa/Golf Agreements; and Sanwa’s Uniform Commercial Code (UCC) filings to protect its security interest in the cars.

In its second amended complaint, Sanwa alleged that Continental had improperly paid the checks over the missing endorsement. It also alleged that (1) Continental knew the nature of Sanwa’s transactions with Golf and that Sanwa had made the checks out to joint payees to verify the existence of the cars and their conveyance from Club to Golf; (2) Sanwa was relying on Continental to get the endorsement of Club for these reasons; and (3) Club had not received the proceeds of the checks. Were it not for Continental’s breach of its statutory duty to Sanwa, Sanwa alleged, it would have been put on notice of the irregularities of Gulf’s purchases and could have avoided its losses.

Continental responded that Sanwa suffered no damages because Club, the intended co-payee, had been paid for the 317 cars, the purpose of the checks. It also raised other affirmative defenses, including ratification and lack of causation. In reply, Sanwa denied that Club received the proceeds of the checks for the purposes intended.

Sanwa moved for partial summary judgment on the issue of liability on all five checks. It argued that Continental had paid the checks despite the missing endorsements and that by charging Sanwa’s account for these checks, Continental violated section 4 — 401(1) of the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 4—401). The court granted Sanwa’s motion.

Next, Continental moved for summary judgment on the issue of damages from the four checks for the first three transactions. It argued among other things that the undisputed facts showed that Club had received the proceeds of the checks for the purchase of the 257 cars in those transactions and that Sanwa’s loss, if any, was not caused by Continental’s improper payment. Sanwa countered that summary judgment would be improper in light of the remaining issues of material fact concerning whether Club received the proceeds of the checks, and even if Club had received the proceeds, whether the proceeds were applied for their intended purposes and what those purposes were. In reply, Continental claimed that it was undisputed that the proceeds of the checks for the first three transactions were used to purchase the cars as Sanwa intended, so Sanwa had suffered no damage. After a hearing, the circuit court granted Continental’s motion, stating “[tjhere is no genuine issue of material fact as to damages. Based on the exhibits, Sanwa sustained no damage as a direct result of the defendant’s breach.”

Sanwa moved for reconsideration or clarification, claiming (1) that Continental had not met its burden of proof; (2) material questions of fact existed as to whether Golf had purchased the 257 cars in the first three transactions; and (3) the intended purpose of the checks was at issue, stressing that questions of intent are particularly inappropriate for summary judgment disposition. At the same time, Continental filed a “supplemental” motion for summary judgment on the issue of damages from the check for the fourth transaction, based on evidence discovered after its earlier motion.

After a hearing, the court granted Continental’s supplemental motion for summary judgment and denied Sanwa’s motion for reconsideration.

I

The standard of review for the grant or denial of a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005) is a familiar one:

“Although the use of a summary judgment procedure is encouraged as an aid in expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. [Citation.] Tn determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent.’ [Citations.] In short, ‘[a] motion for summary judgment is to be decided on the basis of the record as it exists at the time the motion is heard.’ [Citation.]
Furthermore, it is well established that in deciding a motion for summary judgment, the court may draw inferences from the undisputed facts. However, where reasonable persons could draw divergent inferences from the undisputed facts, the issue should be decided by the trier of fact and the motion should be denied. [Citation.] In light of the standard, the trial court does not have any discretion in deciding the matter.” (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271-72, 586 N.E.2d 1211, 1215.)

Accordingly, the de novo standard of review is applied (In re Estate of Hoover (1992), 226 Ill. App. 3d 422, 427, 589 N.E.2d 899, 903), and “[t]he trial court’s summary judgment may be affirmed on any basis appearing in the record whether or not the court relied on that basis or its reasoning was correct.” Ray Dancer, Inc. v. The D M C Corp. (1992), 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 1351.

As for the quantum of evidence necessary to prevail on or defend against a motion for summary judgment,

“where a party moving for summary judgment files supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts set forth in the movant’s affidavits stand as admitted. If the opponent fails to controvert the proofs offered in support of the motion and the movant’s showing of uncontradicted facts would entitle him to judgment as a matter of law, then summary judgment is proper.” (East Side Fire Protection District v. City of Belleville (1991), 221 Ill. App. 3d 654, 657, 582 N.E.2d 755, 758.)

With these principles in mind, we turn to the merits.

II

A checking account creates a contractual, debtor-creditor relationship between a bank (the drawee or payor bank) and its customer (the drawer); under this contract, a bank has an absolute duty to its customer to pay only the payee(s) named, on a check. (National Bank v. Quinn (1988), 126 Ill. 2d 129, 134-35, 533 N.E.2d 846, 849, quoting United States Cold Storage Co. v. Central Manufacturing District Bank (1931), 343 Ill. 503, 513, 175 N.E. 825, and Cosmopolitan State Bank v. Lake Shore Trust & Savings Bank (1931), 343 Ill. 347, 351-52, 175 N.E. 583.) In National Bank, for example, the drawer named a partnership as the payee; the partnership’s general partner, who was an authorized signatory on the partnership account, endorsed the check but deposited it into his personal account instead. Ten months later, the drawer demanded that the bank recredit his account, claiming that the check had not been “properly payable” under section 4 — 401 of the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 4—401). Our supreme court ruled in the drawer’s favor, holding that

“when a check is made payable to order ***, the drawer has the right to expect that the named payee has indorsed the check and thereby directs further negotiation or, in the alternative, that the funds have been deposited only in the account of the named payee. Failing this, the drawer may succeed in a section 4—401(1) claim.” National Bank, 126 Ill. 2d at 139, 533 N.E.2d at 851.

The checks at issue here named both Club and Golf as payees but Golf alone had endorsed them. At the time the checks at issue were written, section 3 — 116(b) of the UCC stated that “[a]n instrument payable to the order of two or more persons *** if not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.” (Ill. Rev. Stat. 1985, ch. 26, par. 3—116(b).) Thus, without Club’s endorsement, the checks were not “properly payable” under section 4—401, as the circuit court correctly held and Continental does not contest. The next question before the circuit court was damages.

Although Sanwa acknowledged at oral argument on the motion that the face value would be reduced by the amount it received by selling the cars it recovered, it urges this court to adopt the Ohio rule, as articulated in Cincinnati Insurance Co. v. First National Bank (1980), 63 Ohio St. 2d 220, 225, 407 N.E.2d 519, 521-22, that a drawer need not prove actual damages before a drawee bank must re-credit the face value of improperly paid checks. There, the court then declined to apply the general damages provision of the UCC, which states that when calculating damages, the court must reduce the face value of the checks “by an amount which could not have been realized by the use of ordinary care” (Ill. Rev. Stat. 1985, ch. 26, par. 4—103(5)). It commented that the improper payment was not a “negligence-type action,” so this provision did not apply because it is predicated on an act of negligence rather than a breach of statutory duty, such as payment of a check over a missing endorsement.

Like the Colorado Supreme Court, sitting en banc in Isaac v. American Heritage Bank & Trust Co. (Colo. 1984), 675 P.2d 742, we reject the reasoning of Cincinnati Insurance. Instead, we apply the general damages provision in the UCC, for in Illinois, Continental’s conduct is considered to be a failure to exercise reasonable care (see, e.g., Spec-Cast, Inc. v. First National Bank & Trust Co. (1989), 128 Ill. 2d 167, 173, 538 N.E.2d 543, 545 (bank, by paying check that drawer did not sign, “failed to exercise reasonable care”)). Unlike the Ohio court, we find that use of this measure of damages is consistent with the intent of the UCC mandate for liberal construction so that “the aggrieved party may be put in as good a position as if the other party had fully performed” (Ill. Rev. Stat. 1985, ch. 26, par. 1—106). Application of these provisions also is consistent with the general rule of contract law that a party is liable only for the damages caused by its breach of the contract. (Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 646, 527 N.E.2d 926, 932.) When the damages suffered would have occurred even if the breaching party had fully performed, there can be no recovery from the breaching party.

Ill

The circuit court granted summary judgment to Continental, deciding that there was no factual question on damages because the parties’ submissions demonstrated that Sanwa’s damages were not the result of Continental’s UCC violation.

Sanwa contends that there remained genuine issues of material fact precluding summary judgment on whether Club received the proceeds of the five checks and, if so, whether it received them for the purposes Sanwa intended. Sanwa asks this court to adopt the rule articulated in Tonelli v. Chase Manhattan Bank, N.A. (1977), 41 N.Y.2d 667, 363 N.E.2d 564, 394 N.Y.S.2d 858, in which the court of appeals of New York rejected an unjust enrichment defense by a drawee bank that had issued a cashier’s check in exchange for a drawer’s unendorsed certified check. Even though the original payee, the drawee, had received the proceeds of the certified check, the court held the drawee liable for the face value of the checks because those proceeds had been converted by thieves for another purpose rather than applied for the purpose intended by the drawer. Sanwa contends that the evidence before the circuit court demonstrated that Club had neither received the proceeds here, which were deposited in Golf’s account and cannot be traced to Club, nor received them for the purposes Sanwa intended. To Sanwa, these purposes included (1) Sanwa’s intent to finance the purchase of 317 new cars; (2) its desire for verification that these 317 cars were not purchased with another’s funds, thereby alerting it to any irregularities in the transactions; and (3) its concern for title to and an interest in the 317 cars. In fact, Sanwa observes, the evidence shows on the contrary that (1) at least 20 cars had been preowned and two were never paid for; (2) four were paid for by others’ funds, one of which was purchased months before the Agreements; and (3) Golf paid for 20 of the cars one year after the Sanwa checks, leading to the inference that these 20 were paid for by someone other than Sanwa.

Under Tonelli, a bank may avoid liability for the face value of unendorsed checks if it demonstrates that the proceeds of a check reached the intended payee for the intended purpose. In doing so, the drawee shows that the drawer suffered no loss. Although Sanwa contends that the question this case presents is whether Illinois will adopt the Tonelli test, that is only one way to defend an action such as this one. A drawer must show that the bank’s conduct was a cause of its loss, so even if a drawer has suffered a loss, he cannot recover the face value of the checks if the drawee can establish that the cause of that loss was something other than the drawer’s improper payment. (Isaac v. American Heritage Bank & Trust Co. (Colo. 1984), 675 P.2d 742.) In either event, the drawer is in the same position he would have been in had the drawee fully performed, as mandated by the UCC. Therefore, Continental would have been entitled to judgment as a matter of law if it demonstrated either that Sanwa suffered no losses (Tonelli, 41 N.Y. 2d 667, 363 N.E.2d 564, 394 N.Y.S. 2d 858) or that any losses it did suffer would have occurred even if Continental had exercised ordinary care (Isaac, 675 P.2d 742). Here, the circuit court’s order states not that Sanwa suffered no injury, but that “[b]ased on the exhibits, Sanwa sustained no damage as a direct result of the defendant’s breach” (emphasis added). Therefore, we do not look to Tonelli for guidance. Instead, the question is whether the circuit court correctly analyzed the record when deciding that given the record before it, there was no question of fact that Continental had not caused Sanwa’s losses.

Although a drawer has the initial burden of demonstrating the causal link between its injury and the drawee’s breach, Sanwa easily met this burden because Continental’s payment of the unendorsed checks was prima facie evidence of its loss; the burden of proof then shifted to Continental. (Isaac, 675 P.2d at 746.) On summary judgment, as explained in East Side Fire Protection District, 221 Ill. App. 3d at 657, 582 N.E.2d at 758, if Continental’s evidence demonstrated that there existed no factual question on this issue, Continental would be entitled to judgment as a matter of law unless Sanwa presented evidence to controvert Continental’s proofs, thereby raising a question of fact for a jury.

Sanwa asserts that its injury occurred “only because [Continental] failed to fulfill the duty it owed to Sanwa” and that if Continental had demanded Club’s endorsement, it would not have suffered its losses. It speculates that if Continental had told Sanwa of Golf’s attempt to cash the first two checks without Club’s endorsement, Sanwa would have been put on notice sufficient to discover Golf’s scheme. It also argues that if the checks had been presented to Club, there exist fact questions such as whether Club would have made inquiry of Sanwa, leading Sanwa to stop payment on the first two checks and not write the other three, and whether “Sanwa may not have entered the transactions which resulted in losses of $600,000 to Sanwa when Golf filed for bankruptcy.” Sanwa further claims that even if Sanwa’s losses were the result of Golf’s fraud and would have occurred without Continental’s UCC violation, this court should follow Kosic v. Marine Midland Bank (1980), 76 A.D. 89, 430 N.Y.S.2d 175, aff’d (1981), 55 N.Y.2d 621, 430 N.E.2d 1317, 446 N.Y.S.2d 264, and reject this defense. Even if the defense were available, it continues, Continental failed to meet its burden of proof on this point.

We disagree with Sanwa’s interpretation of Kosic. Kosic, like Tonelli, concerned unjust enrichment, not causation. There, the court found that “[t]he critical element upon which the defense [of unjust enrichment] depends, i.e., that the funds actually benefitted the intended payee, is wanting.” (76 A.D. at 93, 430 N.Y.S.2d at 178.) Here, Continental’s defense is not only that Sanwa would be unjustly enriched by recrediting its account but also that Golf’s insolvency and Sanwa’s inability to locate its collateral caused Sanwa’s losses. On this point, Continental’s evidence demonstrated conclusively that Golf’s double financing, its inability to perform the Agreements, its relocation of the cars, and its owner’s bankruptcy caused Sanwa’s losses, as did Sanwa’s own lax business practices.

For example, Sanwa was content with certificates of delivery that lacked dates or serial numbers or both and with invoices from Golf that contained no serial numbers. In addition, despite its alleged concern for title to the cars, many of Sanwa’s UCC security interest filings were untimely filed or filed in the wrong county or both. In addition, although Sanwa insists that had Club been given the opportunity to endorse the checks, it would have applied them only to the purchases Sanwa intended or that it would have alerted Sanwa, Sanwa offered no proof that these events would have occurred. Similarly, although Sanwa insists that had Continental noticed the missing endorsement, it would have returned the checks to Sanwa, thereby alerting it to the irregularity, Sanwa presented no proof of the likelihood of this scenario. In relying on its complaint and its prima facie case rather than presenting evidence to controvert Continental’s proofs, Sanwa failed to keep alive any question of material fact concerning the cause of its losses. Accordingly, the circuit court correctly determined that there was no outstanding question of material fact.

IV

We would affirm the circuit court on the basis of ratification as well. In a similar case, Spec-Cast, Inc. v. First National Bank & Trust Co. (1989), 128 Ill. 2d 167, 538 N.E.2d 543, the drawer forgot to sign a check, but the drawee honored it anyway. In the underlying transaction, the drawer had loaned the payee $20,000, in return for which he accepted the payee’s unsecured promissory note instead of collateral. After making only one payment on the note, the payee went bankrupt. The drawer filed suit against the bank to recredit his account, claiming he could not be held liable for the unsigned check under section 3 — 401 of the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 3—401). Our supreme court ruled in favor of the bank because the drawer had received a benefit for the bank’s payment of the check (the promissory note) and had accepted a payment on the note, commenting:

“[The plaintiff] may have wanted collateral in automobiles; nevertheless, his receipt and acceptance of a payment on the note constituted a ratification of the bank’s payment of the check. [Citations.] It was unforeseeable at the time of this deal that [the payee] would file for bankruptcy the next year. Though the bargain [the plaintiff] received was ultimately not profitable, he did receive a promissory note in exchange for the $20,000 paid to [the payee], thus obtaining the benefit of the bank’s payment of the check.” Spec-Cast, 128 Ill. 2d at 178-79, 538 N.E.2d at 547.

Like the drawer in Spec-Cast, Sanwa wanted to fund the purchase of only the 317 cars that were the subject of the Agreements, but it accepted Golf’s performance of the Agreements for more than a year. It was not foreseeable in 1986 that Golf’s owner would file bankruptcy less than two years later, as Sanwa’s own credit reviews attest. It was also not foreseeable that Golf would make it impossible to recover the collateral by moving the cars around the country. The transactions were unprofitable for Sanwa, to be sure, but Sanwa did receive the benefit of Continental’s payment of the checks. Thus, Sanwa’s conduct constituted ratification of Continental’s improper payments of the checks.

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

Affirmed.

McCORMICK, P.J., and SCARIANO, J., concur.

       Two were to Golf Car World alone, two to Golf Car World and Golf Car Leasing.

       Although Sanwa claims it was “very concerned” about title to the cars, it apparently never demanded it. Instead, all the checks were designated as loan proceeds, so its interest in the cars became a purchase money security interest. See Ill. Rev. Stat. 1991, ch. 26, par. 9—107 (a “purchase money security interest” is a security interest that is “taken by a person who by making advances *** gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used”).


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    JUST PANTS, Plaintiff-Appellee, v. JOEINE WAGNER, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—2767
    Opinion filed May 18, 1993.
    Schwartz & Rubin, of Chicago (John B. Schwartz, of counsel), for appellant.
    Rudnick & Wolfe, of Chicago (Marc P. Seidler, Fredric A. Cohen, and Bruce C. Nelson, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Joeine Wagner appeals from the the circuit court’s grant of summary judgment in favor of plaintiff Just Pants, an Illinois limited partnership, on the issue of whether an arbitration award was properly executed. Defendant also contends that because the court erred in holding that the award was enforceable, its subsequent confirmation of that award was necessarily infirm.

In November 1978, defendant and plaintiff entered into an agreement whereby defendant became a franchisee of plaintiff, which owned the franchise of an established national retail clothing store chain. Under the agreement, defendant would be entitled to open and to operate a “Just Pants” clothing store in a shopping mall in Athens, Georgia, and to use plaintiff’s trade name and trademarks. Pursuant to the agreement, she also subleased the Athens store from plaintiff. A later amendment to the existing contract authorized defendant in 1985 to open a second store in a Dalton, Georgia, shopping center, subject to the same terms as applied to the first store. The contract expressly provided that any disputes arising therefrom would be resolved in accordance with the provisions of the United States Arbitration Act (9 U.S.C. §1 et seq. (1988)), and the applicable rules of the American Arbitration Association (AAA).

In 1988, defendant, without explanation, stopped making payments to plaintiff for royalties, advertising fees and rent for the sublease on her two stores; thus, by October 1989, she was in arrears to plaintiff for more than $63,000. Plaintiff, pursuant to the franchise agreement, filed a demand for arbitration with AAA on July 12, 1989, seeking an adjudication of defendant’s liability and a recompense of the debt owed as well as attorney fees and costs. On August 16, 1989, AAA named William Capíes as the arbitrator of the dispute and asked the parties to advise it of a mutually agreeable date upon which the arbitration proceeding could be held. The parties chose October 6, 1989, as the hearing date. On August 24, 1989, AAA informed them that their hearing would be held on the agreed-upon date, and that notice of an intent to postpone must be given at least 48 hours in advance of the time set for the hearing. Nonetheless, on October 5, the day before the hearing was to commence, defendant phoned Capíes, requesting a postponement of the next day’s proceeding or, alternatively, that the hearing be conducted telephonically. Capíes denied both requests.

On the morning of October 6, 1989, defendant’s attorney again phoned Capíes asking that he delay the hearing. Capíes, citing defendant’s lack of diligence in securing a postponement, again denied the request, and pursuant to Rule 30 of AAA’s rules of commercial arbitration, acceded to plaintiff’s demand to conduct the hearing ex parte. After listening to testimony which encompasses over 100 pages of transcript and accepting substantial documentary evidence, Capíes closed the hearing on October 23, 1989. Subsequently, on November 2, 1989, defendant petitioned over plaintiff’s objection to reopen the proceeding, which Capíes denied.

In mid-November 1989, Capíes informed AAA that he was nearing completion of his decision and that he would be sending it forthwith. When the award did not arrive at AAA’s New York office, an official there telephoned Capíes to inquire into the source of the delay. Capíes advised the official that he had rendered a decision in favor of plaintiff in the amount of $81,142 and that his memorandum of the final award would be mailed to AAA. On November 17, 1989, Capíes, as promised, mailed to AAA a copy of an unsigned 11-page memorandum of his award which was attached to a signed cover letter. In the cover letter, Capíes identified the parties to the dispute and, inter alia, referred to the attached memorandum as being his decision with regard to the case.

AAA’s standard procedure upon the filing of an award by one of its arbitrators is to complete a “golden rod” which notifies AAA’s central office which party in a proceeding held under its auspices has prevailed, and also to transcribe the arbitrator’s decision onto one of AAA’s standard award forms which is then sent to the parties. Here, the official who had previously spoken to Capíes sent to AAA’s central office the “golden rod” naming plaintiff as the prevailing party in this action. He also ensured that the standard form expressed Capíes’ resolution of the dispute. He sent seven copies of the completed form to Capíes for his signature, but Capíes died before receiving them.

Plaintiff, seeking to enforce the award rendered by Capíes, filed a complaint in the circuit court seeking a declaratory judgment that the Capíes memorandum was enforceable as an award and asked the court to confirm it pursuant to section 9 of the United States Arbitration Act (9 U.S.C. §9 (1988)), and section 11 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. Ill). On February 26, 1991, plaintiff moved for summary judgment on both counts. Defendant moved to dismiss the complaint via a section 2 — 619 motion (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), asserting that the award was never signed and, therefore, since a signed award is a statutory prerequisite to its subsequent confirmation, the court lacked jurisdiction to confirm it. However, defendant filed nothing in direct response to the motion for summary judgment. The court denied defendant’s motion to dismiss and instead granted plaintiff’s motion for summary-judgment. It found that the most equitable resolution to the controversy was to decree that the written award combined with the signed cover letter met the AAA’s requirement that an award must be written and signed. Accordingly, the court entered judgment in favor of plaintiff and confirmed Capíes’ award nunc pro tunc as of July 24, 1989, after which defendant filed a timely notice of appeal.

The sole question before us is whether a letter subscribed by the arbitrator and attached to the memorandum of his award explaining the basis of his decision, and which fully resolved the proceeding before him but which was not subscribed, constituted a “written, signed award” for the purposes of the applicable AAA rule pertaining to commercial arbitration. Defendant, adopting an exceedingly formalistic approach, argues that because the memorandum of decision was not subscribed by the arbitrator before his death, it cannot be considered a “written, signed award” as contemplated by Rule 42 of the AAA’s rules for commercial arbitration. Thus, under her approach, the award was never executed, and accordingly, a new proceeding must be held before a new arbitrator. Since the memorandum at issue does have the arbitrator’s typewritten name affixed at its end, she implicitly asserts that for the purposes of Rule 42, the “signed” requirement can be satisfied only by a subscription made by the arbitrator in his own hand.

Plaintiff asks this court to affirm the trial court’s confirmation of the award and supports its request by contending that “signed” for the purposes of an arbitration award should be viewed as being no different than it is for the purposes of the statute of frauds and, therefore, either the typewritten name at the end of the memorandum of decision or the handwritten signature on the cover letter to the AAA constitutes a proper execution of the award.

At the outset, we note that the case at bar is squarely on point with In re Arbitration (1972), 6 Ill. App. 3d 286, 285 N.E.2d 480 (Del Bianco), where the defendants in an action seeking, inter alia, to confirm an arbitration award argued that an award rendered in the form of a letter to the AAA was a legal nullity. The court found that a letter signed by the rendering arbitrator, which recited only the names of the parties in the proceedings, the finding of the arbitrator, and the amount of the award, sufficed as an official pronouncement of the award, and that the award was adequately executed. It reasoned that arbitration proceedings are valued for their informality and their expedient resolution of disputes, and that, therefore, to require a more formal decision would militate against the very reason arbitrations are recognized as an alternate means of dispute resolution. As a result, the Del Bianco court rejected the defendants’ contention that the trial court erred by confirming this method of handing down an AAA award. The court found “[t]he recitations in the letter constituted a sufficient statement of the award.” Del Bianco, 6 Ill. App. 3d at 296, 285 N.E.2d at 486.

As a companion argument, defendant here urges, in effect, that the letter Capíes mailed along with his written decision to the AAA’s New York office in order to notify it of his disposition of the instant dispute is insufficient as a matter of law to constitute a valid execution of an award. However, as was true in Del Bianco, the cover letter combined with the written decision fully informed the AAA who the parties to the dispute were, who had prevailed in the dispute, and the amount the victor would recover. Furthermore, Capíes’ letter was subscribed “Bill,” in what is indisputably the arbitrator’s handwriting. The Del Bianco court found that these four factors constituted a sufficient statement of the award, and defendant in the case at bar offers nothing which persuades that we should not hold likewise.

Moreover, assuming arguendo that we were to ignore the clear applicability of Del Bianco, the trial court’s decision may be affirmed on the very ground it asserted while rendering its decision. In granting plaintiff’s motion for summary judgment, the trial court, after noting that it sat in equity, decreed that “[t]he fairest decision is that Mr. Capíes’ award[,] combined with his signed memorandum^] satisfy the prerequisite for the written signed award required.” This is merely another way of stating the equitable maxim “that equity considers that as done which ought to be done.” Cesena v. Du Page County (1991), 145 Ill. 2d 32, 38, 582 N.E.2d 177, 180; Ward v. Sampson (1946), 395 Ill. 353, 366-67, 70 N.E.2d 324, 331; Kohl v. Montgomery (1942), 379 Ill. 579, 41 N.E.2d 762; Edward Don & Co. v. Ufland (1968), 98 Ill. App. 2d 49, 56, 240 N.E.2d 725, 730 (citing the maxim in order to remove the taint on a stock certificate which bore only the facsimile signature stamp of the certificate’s former owner which was affixed after his death).

Applying this doctrine to the facts of the case sub judice, the trial court recognized that the cover letter and the written decision of the arbitrator constituted his final word on the dispute, and that there was nothing which even hinted that he had any intent to alter his determination. In The Del-Mar-Va (D.C. Va. 1944), 56 F. Supp. 743, an admiralty action, the United States sought a “re-trial de novo” because, inter alia, prior to his death, the trial judge prepared only an informal memorandum of decision which outlined the basis of his earlier oral order, rather than a signed formal writing stating his findings of fact and conclusions of law as mandated by Admiralty Rule 461/2. The successor judge predicated his denial of the government’s motion mainly on the fact that the informal memorandum, although not in the form dictated by the rules of the admiralty court, “embodied specific findings on all the material facts in the cases, and set out adequate conclusions on all the important questions of law involved therein,” and thus “[it] was a decision of all the issues involved in the cases.” (The Del-Mar-Va, 56 F. Supp. at 748.) The court, therefore, disallowed the government’s motion for a trial de novo and adopted as its own the findings contained in the informal memorandum.

Similarly, Capíes filed his unsubscribed decision which both he and the AAA understood to be his final word on the subject. The AAA was merely to transpose the decision onto the standard form which it employs to memorialize arbitration awards and return it to him for his signature. The AAA was then to inform the parties of the resolution of the dispute by sending each a copy of the form. Like the unsigned, informal memorandum in The Del-Mar-Va, Capíes’ unsubscribed memorandum contained his findings on the specific facts of the dispute between the parties, his determination as to which party was to recover, what the extent of the recovery would be, and a recitation of his conclusions of law. To borrow from the court in The Del-Mar-Va, Capies’ memorandum was “a decision of all the issues involved in [the arbitration proceeding]” (The Del-Mar-Va, 56 F. Supp. at 748); accordingly, we hold that it comprises a final arbitration award in favor of plaintiff which was properly confirmed by the trial court.

Furthermore, unlike the government in The Del-Mar-Va, defendant does not urge that the deceased fact finder had some basis to change his decision, nor, for that matter, if such were to be asserted, would the facts of this appeal allow for such a suggestion. The document at issue was clearly final and no party to this dispute had moved to supplement the record prior to his death as the government had attempted to do in The Del-Mar-Va. Rather than suggesting that Capíes’ memorandum of decision was actually only a draft copy subject to later revision, defendant claims that for the purposes of all arbitration awards, formalism should govern. She would have this court pay homage to the remotest possibility that Capíes could have changed his mind at any point prior to affixing his name to the document and that therefore an award should not be considered duly executed until the arbitrator places his signature on it.

In order to agree with defendant, we would first have to accept the gloss she places on the word “signed” for the purposes of the AAA internal rule which governs the form of an award. Rule 42 of the commercial arbitration rules of the AAA, entitled “Form of Award,” mandates that “[t]he award shall be in writing and shall be signed by a majority of the arbitrators.” This is essentially the equivalent of section 8 of the Uniform Arbitration Act, which has been adopted in Illinois (Ill. Rev. Stat. 1989, ch. 10, par. 108) and which controls the requisite form of the award for arbitrations conducted under its auspices. We note that the word “signed” has not, as yet, been interpreted in the specific context of either the AAA’s rules or section 8 of the Uniform Act.

Defendant maintains that in construing the word “signed,” this court must do so as strictly as permissible because the right to confirm arbitration awards did not exist at common law, but is merely the creature of statute. (Citing Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 538 N.E.2d 524; Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 302-03, 565 N.E.2d 724, 728.) However, we deem her proposed constraint inapplicable since the parties had agreed that any arbitration which resulted from their contractual relations be governed not by Hlinois law, but rather by the United States Arbitration Act (9 U.S.C. §9 (1988 & West Supp. 1990)), and the applicable rules of the AAA. Section 9 of the Federal act is silent on the question of whether an arbitration award must be signed. That requirement, for the purposes of this appeal, arises only from Rule 42 of the AAA. Consequently, we are not construing a legislative enactment, but merely the rules of a private organization; therefore, the holdings of Warren Township and Evans are inapplicable to the case at bar. In reality, since Illinois law favors arbitration (Pillott v. Allstate Insurance Co. (1977), 48 Ill. App. 3d 1043, 1047, 363 N.E.2d 460), Rule 42 must be given as broad a construction as possible. Cf Merritt v. Merritt (1850), 11 Ill. 565 (holding that arbitration awards should be construed with an eye toward upholding their validity whenever practicable).

Although never expressly saying so, defendant hinges her appeal on the belief that “signed” must be construed solely as the equivalent of “subscribed.” Under her construct, for an award to be valid, the rendering arbitrator must have actually put pen to paper and subscribed his name by hand to the document he intends to be his award. In this respect, however, defendant occupies a position of lonely eminence, for no authority, in any context, has held that hers is the only permissible construction of the term. For instance, Black’s Law Dictionary, upon which we have relied since time immemorial (see, e.g., People v. Stephens (1973), 12 Ill. App. 3d 215, 217-18, 297 N.E.2d 224, 226 (adopting Black’s definition of “signature” to hold that a search warrant is authentic even though it is only stamped by a magistrate rather than being subscribed)), defines “signed” as “[i]nclud[ing] any symbol executed or adopted by a party with present intention to authenticate a writing.” (Black’s Law Dictionary 1239 (5th ed. 1979); see also Ill. Rev. Stat. 1991, ch. 26, par. 1—201(39) (defining “signed” for the purposes of the Commercial Code with the same meaning elucidated above).) In a fuller explication, Black’s defines “sign” as:

“To affix one’s name to a writing or instrument, for the purpose of authenticating or executing it, or to give effect as one’s act. To attach a name or cause it to be attached to a writing by any of the known methods of impressing a name on paper. To affix a signature to; to ratify by hand or seal; to subscribe in one’s own handwriting. To make any mark, as upon a document, in token of knowledge, approval acceptance, or obligation.” Black’s Law Dictionary 1239 (5th ed. 1979).

Finally, in the context of contracts and the statute of frauds, “signed” has eternally been understood to encompass more than the narrow definition of a subscription in the handwriting of the author of the instrument. Indeed, a writing has been considered “signed” for the purpose of the statute even if it merely contains something which manifests that the instrument has been executed or adopted by the party to be charged by it. Weston v. Myers (1864), 33 Ill. 424, 432-33 (“We think it makes no difference, so far as defendant’s liability is concerned, whether he wrote his name in script or Roman letters, or whether such letters were made with a pen or with type, or whether he printed, engraved, photographed or lithographed them, so long as he adopted and issued the signature as his own [ ]”) (emphasis in original); McConmell v. Brillhart (1856), 17 Ill. 354, 360; see also Monetti, S.P.A. v. Anchor Hocking Corp. (7th Cir. 1991), 931 F.2d 1178, 1182 (stating that “ ‘signed’ in statute-of-frauds land is a term of art, meaning executed or adopted by the defendant” and therefore, holding the defendant’s initials on a writing sufficient to satisfy the statute); 80 C.J.S. Signatures §7 (1953) (“Generally, in the absence of a statute otherwise providing, a signature may be affixed by writing by hand, by printing, by stamping, or by various other means”).

In sum, in a variety of contexts, the law has consistently interpreted “signed” to embody not only the act of subscribing a document, but also anything which can reasonably be understood to symbolize or manifest the signer’s intent to adopt a writing as his or her own and be bound by it. This may be accomplished in a multitude of ways, only one of which is a handwritten subscription. (See First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 205 N.E.2d 780.) Applying that definition of “signed” to Rule 42, it is clear that the arbitrator’s name at the end of the memorandum, which was typewritten on the memo prior to his death, can serve to manifest his intent that the 11-page memorandum constitutes his final word on the subject and that he adopted it as his opinion of the proper resolution of the dispute between the parties. Accordingly; the typewritten name at its end can execute and give legal effect to the memorandum, for we cannot agree with defendant that such an endorsement by an arbitrator of his award is to be accorded no more importance than if it had been accomplished by means of a smoke blanket.

Defendant protests that the looser definition of “signed” is permissible in commercial agreements and for the purposes of the statute of frauds because, in those settings, the “signature substitutes” (as she refers to them) serve only to show that the signatory intends to enter into a specific transaction, and that once the statute is satisfied, it is still incumbent on the other party to establish the existence of an enforceable agreement. Defendant contrasts that situation with the purpose of arbitration, which is intended to be a final adjudication of a dispute between the parties, and therefore, the signature requirement is intended as a beacon, informing all that the dispute has been fully settled and that further proceedings on the subject are now barred by res judicata. This argument is, however, unavailing.

First, it glosses over the fact that under the Federal Arbitration Act, an award need not be signed nor must it even be in writing to be validly executed. (9 U.S.C. §9 (1988).) Certainly, unsigned awards rendered pursuant to Federal law are still intended to be final resolutions of disputes on the merits and, once rendered, will have a res judicata effect on the parties and the issues addressed in the arbitration. See Davis v. Chevy Chase Financial Ltd. (D.C. Cir. 1981), 667 F.2d 160; Albin Stevedore Co. v. Central Rigging & Contracting Corp. (9th Cir. 1962), 308 F.2d 347; Marshall v. Coach House Restaurant, Inc. (S.D.N.Y. 1978), 457 F. Supp. 946.

Moreover, defendant’s “need for certainty” argument ignores an obvious analogy to practices which we have found to conform with Supreme Court Rule 272 (134 Ill. 2d R. 272), which provides in pertinent part:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by [the judge or if a circuit court rule requires the prevailing party to submit a draft order], the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” (134 Ill. 2d R. 272.)

The motivation for the rule is to fix precisely the date of final judgment for the purposes of appeal. (Stoermer v. Edgar (1984), 104 Ill. 2d 287, 472 N.E.2d 400; West v. West (1979), 76 Ill. 2d 226, 390 N.E.2d 880.) However, under Rule 272, no judgment, even one announced from the bench in the parties’ presence, is final until the court complies with its procedural commands. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290; In re Marriage of Roberts (1980), 84 Ill. App. 3d 538, 406 N.E.2d 1.) Surely, the same need for certainty which defendant claims dictates that a signature be subscribed by the arbitrator as the sine qua non of a valid arbitration award applies at least equally to the signature requirement of Rule 272. However, we have rejected the contention that for purposes of the rule, a judgment must actually be subscribed by the trial judge in order to be final and appealable. In Robertson v. Robertson (1984), 123 Ill. App. 3d 323, 462 N.E.2d 712, the reviewing court found that the mere initials of the trial judge satisfied the signature requirement of Rule 272. Since a judge’s initials affixed to the end of a judgment impart approximately the same degree of finality and certainty as an arbitrator’s typewritten name affixed to the last page of his 11-page decision, we follow the lead of Robertson and attach no significance to the method employed to “sign” the arbitration award.

Defendant, without regard or reference to the clear applicability of Robertson, which rejected formalism in the perfectly analogous setting of Rule 272, argues that form in this context should prevail over substance, suggesting that any means of executing an award other than by a handwritten subscription would dim the clear bright-line test which informs when an award is final. In advancing her argument, she cites previous cases wherein a reviewing court reversed the confirmation of arbitration awards, and the reason for reversal touched upon whether the awards were signed. She implicitly contends that those courts recognized the necessity of allowing form to overcome substance and that therefore this court should follow suit.

However, her reliance on any precedent in support of this assertion is either unwarranted or misconceives the lesson of those earlier cases. Furthermore, defendant omits any mention of the myriad of cases which have rejected her assertion or have expressly held that the exaltation of form has no place in arbitration. (See Kemner v. District Council of Painting & Allied Trades No. 36 (9th Cir. 1985), 768 F.2d 1115 (refusing to set aside an award merely because it was not in a specified form); Griffith Co. v. San Diego College for Women (1955), 45 Cal. 2d 501, 289 P.2d 476 (rejecting form over substance argument); Creter v. Davies (1954), 30 N.J. Super. 60, 103 A.2d 392 (affirming award signed by only two of three arbitrators, given no appearance of impropriety), aff’d (1954), 31 N.J. Super. 402, 107 A.2d 17; Winston v. Eisenberg (1962), 17 A.D.2d 998, 998-99, 233 N.Y.S.2d 778, 779 (finding valid an award signed by only two of three arbitrators and stating “we think that the technical errors [missing signature of third arbitrator] did not significantly affect the result so as to require a reversal of the [trial court’s confirmation of the award]”); Virginia Beach Board of Realtors, Inc. v. Goodman Segar Hogan, Inc. (Va. 1983), 299 S.E.2d 360 (rejecting contention that an award rendered by a five-member panel is invalid because it was signed only by the panel’s chairman); Forrer v. Coffman (1873), 64 Va. (23 Gratt) 871 (rejecting as mere form the failure of the arbitrators to affix a seal to their name and accordingly affirming their award); see also 5 Am. Jur. 2d Arbitration & Award §125 (1962) (“But mere informalities in preparing or signing an award will not ordinarily be sufficient ground for declaring it invalid if it reflects the intent of the arbitrators”).) Over 100 years ago, the court in Forrer recognized:

“The tendency of the modem decisions is to disregard, as far as possible, mere matters of form, and to give force, conclusiveness and effect to awards where no corruption or misconduct on the part of the arbitrators is charged,, and no fraud or deceit imputed to the parties.” (Forrer, 64 Va. (23 Gratt) at 877.)

As this tendency seems to have become more acutely prevalent in these more modem times, we deem it necessary to remind defendant of the admonition given to us by one of our most venerable jurists decades ago, that “[t]he law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal.” (Cardozo, J., in Wood v. Duff-Gordon (1917), 222 N.Y. 88, 91, 118 N.E. 214, 214.) Since defendant does not allege that the arbitration proceeding below was tainted by corruption or misconduct, we perceive no impediment to our giving “force, conclusiveness and effect” to the award by affirming its confirmation by the trial court.

For all of the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.


author: JUSTICE HOFFMAN

text:
    JENNIFER SIMMONS, Adm’r of the Estate of Toussant Devon Simmons, a Minor, Deceased, et al., Plaintiffs-Appellees, v. UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS, d/b/a University of Chicago Medical Center, et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—91—2759
    Opinion filed May 20, 1993.

      Cassiday, Schade & Gloor, of Chicago (William J. Furey, Timothy J. Ashe, and Lynn D. Dowd, of counsel), for appellants.
    Edward R. Vrdolyak, Ltd. (Timothy Quinn and Gino P. Naughton, of counsel) and Barry Sullivan of Jenner & Block, both of Chicago, for appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Jennifer Simmons, administrator of the estate of Toussant Devon Simmons, deceased, on behalf of herself and Terrence Simmons, as parents and next of kin of the decedent, sought recovery under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 1 et seq.) against the University of Chicago Hospitals and Clinics (UCHC) and Luis Cibils, M.D. Plaintiff alleged that defendants’ medical negligence caused the death of the decedent on the day of his birth, April 5,1983.

The case proceeded to trial before a jury, and on March 20, 1991, a verdict of $1.6 million was returned against defendants. The jury fixed the pecuniary loss of Mrs. Simmons at $900,000, and that of Mr. Simmons at $700,000. Defendants’ timely post-trial motion was denied on July 18,1991, and this appeal followed.

Defendants argue they are entitled to a new trial, assigning as error the following: (1) the giving of Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1992) (IPI Civil 3d No. 5.01), which allowed the jury to draw an adverse inference by reason of defendants’ failure to call Dr. Judith Hibbard as a witness; (2) the allowance of plaintiff’s motion in limine barring defendants from introducing evidence that Mr. and Mrs. Simmons had two children subsequent to the death of the decedent; (3) the allowance of expert testimony by Dr. Mitra Kalelkar, a forensic pathologist, on an issue allegedly beyond her field of expertise; (4) that the verdict of $1.6 million for loss of society with an infant that died at birth was excessive and the product of passion and prejudice; and (5) that the verdict was against the manifest weight of the evidence.

Viewing the evidence in this case in the light most favorable to plaintiff (Kemper v. McDougal-Hartmann Co. (1984), 127 Ill. App. 3d 512, 515, 468 N.E.2d 998), the following are the facts pertinent to the disposition of this appeal.

Between 10 and 10:30 a.m. on April 5, 1983, Mrs. Simmons was admitted to defendant hospital in active labor. She was examined and a fetal monitor was attached. At about 11:40 a.m., á female resident artificially ruptured Mrs. Simmons’ membrane in order to attach a scalp electrode to the unborn child. When the membrane was ruptured, Mrs. Simmons began to discharge a thick muconium indicative of fetal distress caused by insufficient oxygen. At 12:20 p.m., a significant deceleration in the fetal heart rate was noted and a resident notified defendant, Dr. Cibils. Concluding that the deceleration was caused by an umbilical cord compression, Dr. Cibils ordered that Mrs. Simmons be taken to an operating room for an emergency C-section delivery. In the operating room, the fetal monitor was reconnected, and at 12:28 p.m., the child’s heart rate recovered. Dr. Cibils examined both Mrs. Simmons and the unborn child, and at 12:30 p.m., he cancelled the emergency C-section procedure.

At 3:37 p.m., the fetal heart rate again significantly decelerated and Mrs. Simmons was returned to the operating room. At 3:57 p.m., Dr. Cibils performed an emergency C-section delivery of a baby boy. Although the child had a heartbeat at the time of delivery, he was in distress. Subsequent resuscitation attempts in the operating room and intensive care were unavailing, and shortly after his birth, the decedent died of perinatal asphyxia.

Plaintiff’s expert witness, Dr. Masterson, opined that Dr. Cibils’ cancellation of the C-section delivery at 12:28 p.m. constituted a deviation from the requisite standard of care and that this deviation caused the decedent’s death. Defendants introduced evidence that Dr. Cibils complied with the requisite standard of care in his medical treatment of Mrs. Simmons and the decedent.

We will address each assignment of error, but not necessarily in the order in which defendants presented them.

The reversal of a jury verdict and grant of a new trial is warranted when a party has been prejudiced by the erroneous admission or exclusion of evidence. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 727, 457 N.E.2d 85.) This broad proposition impacts upon two allegations of error in the case at bar; namely, the admission of Dr. Mitra Kalelkar’s opinion testimony, and the exclusion of defendants’ evidence that the Simmonses had two children subsequent to decedent’s death. We will address each of these contentions separately.

The burden of establishing an expert witness’ qualifications to render an opinion on a particular subject lies with the party offering that witness’ testimony. The determination of the sufficiency of the witness’ qualifications is a matter within the sound discretion of the trial judge, whose decision will be reversed only for abuse of that discretion. Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 36, 541 N.E.2d 643; People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218; Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 302 N.E.2d 257.

Dr. Kalelkar testified that in her opinion, the decedent would have survived had a C-section been performed at 12:28 p.m., when originally planned. According to defendants, this opinion would have been more appropriately given by an obstetrician or a gynecologist rather than a forensic pathologist. Defendants argue that the trial court erred in allowing Dr. Kalelkar to render an opinion outside her field of expertise.

On direct examination, Dr. Kalelkar was asked whether the decedent would have survived had he been delivered by a C-section procedure at 12:28 p.m. Before allowing her to answer the question, the trial court recessed the trial and a voir dire examination of Dr. Kalelkar was conducted outside the presence of the jury. During that examination, Dr. Kalelkar testified that she had studied the fetal monitor tracings for the time in issue. Those tracings revealed that the decedent suffered a period of asphyxia from which he recovered. His heart rate returned to normal and he survived in útero. It was her opinion that had decedent been delivered by a C-section procedure at 12:28 p.m., he would have survived. She specifically declined, however, to render any opinion as to whether, under the clinical circumstances present at 12:28 p.m., a C-section delivery should have been performed. After the voir dire examination, the trial court found Dr. Kalelkar competent to respond to the question posed and to render the opinion requested. Dr. Kalelkar then resumed her testimony before the jury and gave the opinion at issue.

There is no question as to Dr. Kalelkar’s qualifications as a pathologist or her competence to render expert testimony regarding the cause of the decedent’s death. Doctor Mitra Kalelkar is licensed to practice medicine in Illinois and is board certified in forensic pathology. According to her testimony, her special area of interest within her field of concentration is “pediatric deaths.” The evidence also reveals that she has written on the subject of infant asphyxia. As assistant medical examiner for Cook County, Dr. Kalelkar performed an autopsy upon the decedent and also reviewed the hospital records which included the fetal monitor tracings. She found no abnormalities in the decedent’s heart or other vital organs and fixed the cause of his death as perinatal asphyxia.

Based upon this record, we find no abuse of discretion in the trial court’s determination that Dr. Kalelkar was qualified to render the subject opinion. It must be borne in mind that Dr. Kalelkar gave no opinion regarding the requisite standard of care owed by Dr. Cibils under the circumstances of this case, or whether he breached any such standard. In our view, the record amply supports the ruling of the trial court on this issue.

The next evidentiary issue for review is the propriety of the grant of plaintiff’s motion in limine precluding defendants from introducing evidence that the Simmonses gave birth to two children subsequent to the death of the decedent. A complete examination of this issue requires that it be viewed from two separate perspectives, the first being the time the ruling was originally made, and the second being the time of plaintiff’s closing argument.

Defendants argue that the evidence of the Simmonses’ two subsequent children was relevant to plaintiff’s claim for damages due to loss of society, and was crucial to defendants’ ability to rebut the presumption of loss of society on the part of Mr. and Mrs. Simmons upon the death of their child.

The Illinois Wrongful Death Act governs all damage claims arising from the death of one person as a result of the negligence of another. Section 2 of the Act provides that “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” (Ill. Rev. Stat. 1981, ch. 70, par. 2; Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) When the decedent is a minor child and the next of kin are his surviving parents, the law recognizes a presumption that the parents have suffered a substantial pecuniary injury in the form of loss of society. (Bullard, 102 Ill. 2d at 517.) The compensable pecuniary injury in-eluded within the concept of lost society is the future companionship, guidance, love, advice, affection and comfort that would have been exchanged between the parents and the child but for the defendant’s negligence. (Smith v. Mercy Hospital & Medical Center (1990), 203 Ill. App. 3d 465, 560 N.E.2d 1164, affirmed in Seef v. Sutkus (1991), 145 Ill. 2d 336, 583 N.E.2d 510.) Inherent in the parent-child relationship are the intangible benefits of the society that each derives from the other. Bullard, 102 Ill. 2d at 516-17; Ballweg v. City of Springfield (1986), 114 Ill. 2d 107,120, 499 N.E.2d 1373.

Defendants’ theory as to the relevance of the birth of two subsequent children to the Simmonses rests upon a seriously flawed premise. In order to accept the argument, one must first accept the notion that the loss suffered by a parent upon the death of a child is somehow ameliorated with the birth of a subsequent child, a notion we categorically reject. We are speaking about the most distinct and precious commodity known, an individual human life, respect for which goes to “the heart of our legal system and, broader still, our civilization.” Cockrum v. Baumgartner (1983), 95 Ill. 2d 193, 201, 447 N.E.2d 385.

Accordingly, we fail to see how the birth of two subsequent children is in any way relevant to the loss of society suffered by the Simmonses upon the decedent’s death. Defendants’ argument might have merit if we were addressing it in the context of a claim for loss of services (see Smith, 203 Ill. App. 3d at 478), but we are not. As defendants’ brief acknowledges and the trial court’s jury instructions bear out, the sole element of damage in this case is loss of society. If defendants’ argument on this issue were accepted, surviving parents in a wrongful death claim would be required to engage in the unseemly spectacle of disparaging the societal value of their afterbom children in an effort to minimize the offset which the defendants claim by those children’s very existence. See Cockrum, 95 Ill. 2d at 202; Dralle v. Ruder (1988), 124 Ill. 2d 61, 71, 529 N.E.2d 209.

Additionally, defendants have claimed prejudice because plaintiff’s counsel, armed with the trial court’s ruling on the motion in limine, misrepresented the Simmonses’ family circumstances in closing argument by suggesting that defendants had deprived them of the opportunity to have a family.

Defendants’ argument on this contention must fail for two reasons. First, defendants failed to object at the time plaintiff’s closing argument was made. It was only after the verdict that they requested relief from the trial court. Defendants have thus waived any error that may have arisen from the remarks. (Lindroth v. Walgreen Co. (1950), 407 Ill. 121, 94 N.E.2d 847; People v. Switalski (1946), 394 Ill. 530, 69 N.E.2d 315.) Second, even if the issue were not waived, we believe that defendants’ interpretation of the remarks of plaintiff’s attorney is strained. While it is true that plaintiff’s attorney spoke in terms of “family,” he did not convey the idea that the Simmonses could not have a family after the death of the decedent. Rather, the argument to the jury related specifically to the birth and death of this decedent. The argument was couched in terms of the Simmonses’ expectations, preparations, dreams and hopes prior to the child’s birth, and their familial loss upon his death. The argument was directed to the loss of “their first born child” and “their first born son.” Family, to the extent mentioned, referred to a relationship to this particular child. Not once did plaintiff’s attorney argue or insinuate that after the decedent’s death the Simmonses could not or did not have children.

Defendants’ next contention relates to the trial court’s giving of a “missing witness” instruction, IPI Civil 3d No. 5.01, and the remarks of plaintiff’s attorney in closing argument relating to defendants’ failure to call certain doctors and a nurse to testify.

Before plaintiff rested her case in rebuttal, the court and counsel held an instruction conference wherein plaintiff tendered a missing witness instruction, IPI Civil 3d No. 5.01. Plaintiff maintained that the instruction was appropriate because defendants failed to call as witnesses Dr. Smallwood, Dr. Hibbard, Dr. Anderson, Dr. Blanks, Dr. Michelleti and Nurse Dennis, each of whom possessed relevant information concerning the care rendered to Mrs. Simmons and the decedent. Defendants objected on three grounds: first, Dr. Hibbard was the only member of the group still employed by UCHC; second, plaintiff had failed to serve a Rule 237 notice (134 Ill. 2d R. 237) requesting production of any of the individuals; and third, that defendants’ failure to call additional witnesses was motivated by a desire to “streamline” the trial process by dispensing with “extraneous” witnesses. From the outset, the trial court held that since Smallwood, Anderson, Blanks, Michelleti and Dennis were no longer under the control of UCHC, it would be inappropriate to give IPI Civil 3d No. 5.01 by reason of defendants’ failure to call them as witnesses or to permit argument on the issue.

The discussion in the conference then focussed on defendants’ failure to call Dr. Hibbard. Defendants sought to reopen their case to call Hibbard if the court was inclined to give an IPI Civil 3d No. 5.01 instruction. At this point, plaintiff withdrew the instruction. The trial court then indicated that in the absence of an IPI Civil 3d No. 5.01 instruction, plaintiff could not argue that the jury should draw any adverse inference by reason of defendants’ failure to call a witness. Plaintiff subsequently resubmitted the “missing witness” instruction and the defense again moved to reopen its case and call Dr. Hibbard to testify. The court granted defendants’ motion to reopen, and plaintiff again withdrew the instruction.

After plaintiff rested, the trial judge and counsel met outside the presence of the jury at which time the trial judge, sua sponte, reopened the discussion of the propriety of giving an IPI Civil 3d No. 5.01 instruction. After explaining his reasons, the judge indicated that he had reconsidered the matter and was prepared to submit a missing witness instruction for defendants’ failure to call Dr. Hibbard as a witness. In response to the judge’s remarks, defense counsel objected, arguing that under the circumstances he ought to be given the opportunity to reopen the defense case. He stated that if the court was going to resubmit the instruction, he wanted to consider making a motion to reopen. After the trial judge reiterated the basis for his position, he ruled that an IPI Civil 3d No. 5.01 instruction would be given to the jury. After the ruling, defendants made no motion to reopen their case to call additional witnesses.

When the trial reconvened, plaintiff’s attorney made his closing argument. He argued that the jury could infer that the reason Hibbard, Smallwood, Anderson, Blanks, Michelleti, and Dennis did not testify in the case was because they “could not say anything to back [defendants] up.” Further on in his argument, plaintiff’s counsel informed the jury that the court would instruct them as to the inference that they could draw by reason of defendant UCHC’s failure to call its employee, Dr. Hibbard, to testify. He urged the jury to look at the instruction in light of what they had heard about Dr. Hibbard. Defendants made no objection to any of plaintiff’s counsel’s remarks to the jury either during his argument or at any time thereafter prior to verdict.

After closing arguments, the court instructed the jury both orally and in writing. One of the instructions was IPI Civil 3d No. 5.01, which was as follows:

“If a party to this case has failed to offer evidence within his power to produce, you may infer that the evidence would be adverse to that party if you believe each of the following elements:
1. The evidence was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The evidence was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstance would have offered the evidence if he believed it to be favorable to him.
4. No reasonable excuse for the failure has been shown.”

The inappropriate giving of a “missing witness instruction” (Taake v. W H G K, Inc. (1992), 228 Ill. App. 3d 692, 592 N.E.2d 1159), or improper comment by counsel in argument concerning an opponent’s failure to produce certain witnesses (Sawicki v. Kim (1983), 112 Ill. App. 3d 641, 445 N.E.2d 63; Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 367 N.E.2d 472), warrants the grant of a new trial when either acts to deprive the appellant of a fair trial.

The criteria for the giving of a “missing witness” instruction, . and the ability of counsel to comment adversely upon an opponent’s failure to call a witness, were passed upon by our supreme court in Schaffner (129 Ill. 2d at 22):

“As a general matter, the adverse inference is available when the missing witness was under the control of the party to be charged and could have been produced by reasonable diligence, the witness was not equally available to the party requesting that the inference be made, a reasonably prudent person would have produced the witness if the party believed that the testimony would be favorable, and no reasonable excuse for the failure to produce the witness is shown. (Hollembaek v. Dominick’s Finer Foods, Inc. (1985), 137 Ill. App. 3d 773, 776; IPI Civil 2d, No. 5.01; see Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318-19 (same criteria govern use of pattern instruction and allowance of adverse comment in argument).) The decision whether to use the instruction or permit the argument is reserved to the sound discretion of the court (see Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1046-47 (instruction)) ***.”

In the instant case, we agree with the trial court’s decision that the missing witness instruction was warranted because of defendant UCHC’s failure to call Dr. Judith Hibbard to testify. Dr. Hibbard was a resident at UCHC on the date of Mrs. Simmons’ admission. It was Dr. Hibbard who recorded on the hospital chart the events preceding Dr. Cibils’ decision to perform an emergency C-section at 12:20 p.m., and the events leading to the cancellation of that procedure about 12:30 p.m. At the time of trial, Dr. Hibbard was still in the employ of defendant UCHC. By virtue of her status as an employee of UCHC, it was reasonable to conclude that she was within defendants’ control (Schaffner, 129 Ill. 2d at 23), and not equally available to plaintiff, notwithstanding plaintiff’s ability to compel Dr. Hibbard’s appearance at trial under Supreme Court Rule 237. (Schaffner v. Chicago & North Western Transportation Co. (1987), 161 Ill. App. 3d 742, 756, 515 N.E.2d 298, aff’d (1989), 129 Ill. 2d 1.) It was also reasonable for the trial court to assume that defendant UCHC would have presented Dr. Hibbard if it believed her testimony would have been favorable. (Schaffner, 129 Ill. 2d at 24.) We arrive at this conclusion for two reasons. First, aside from the testimony of defendant Dr. Cibils, the only evidence the jury heard relating to the propriety of his decision to cancel the C-section was from the parties’ “retained experts” — hardly nonpartisans. (See Sears v. Rutishauser (1983), 117 Ill. App. 3d 61, 68, 453 N.E.2d 1 (Webber, P.J., dissenting), rev’d (1984), 102 Ill. 2d 402, 466 N.E.2d 210.) Second, defendants had successfully argued against plaintiff’s attempt to bar them from calling Dr. Hibbard as a witness under the “Petrillo doctrine.” (See Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.) Defendants contend that they offered a reasonable excuse for not calling Dr. Hibbard. We disagree. The failure of a plaintiff to serve a Rule 237 notice upon a defendant commanding the production of a witness who, by virtue of employment, is potentially biased against the plaintiff is not a reasonable excuse for the defendant’s failure to call the witness. Additionally, the only testimony on the central issue in this case, the propriety of a medical decision, came from a defendant doctor and two retained witnesses whose opinions were premised on a review of records. Under these circumstances, the failure to call a doctor who was not a defendant and who directly witnessed the events leading up to the decision in question can hardly be written off as a desire to, “streamline” the proceedings. Under the circumstances of this case, it was not an abuse of discretion for the trial court to give the missing witness instruction.

The next area of inquiry surrounds a portion of plaintiff’s closing argument suggesting defendants’ failure to call Doctors Smallwood, Anderson, Blanks and Michelleti and Nurse Dennis as witnesses, and the adverse inference that could be drawn therefrom. As indicated earlier, the missing witness instruction was given solely by reason of UCHC’s failure to call Dr. Hibbard. From the very outset, the trial judge indicated that an IPI Civil 3d No. 5.01 instruction would not be given by reason of defendants’ failure to call the remaining individuals as witnesses. The court’s reason, with which we concur, was that since these individuals were no longer in UCHC’s employ, the control element necessary for the giving of the instruction was absent. When speaking with reference to these individuals, the trial judge stated:

“If they are not within the control of the defense, then obviously no No. 501 [sic] or argument along the lines of 501 [sic] would be appropriate, so that’s my ruling with regard to them. There’s no reason to think that they are within the control of the defense. Now lets talk about Hibbard.”

Without question, plaintiff’s attorney violated the court’s ruling when he implied that the jury could draw an inference adverse to defendants by the failure of these individuals to testify. The question before this court, however, is whether counsel’s remarks mandate a reversal and remandment for a new trial. Plaintiff argues that because defendants raised no objection to these comments, any error has been waived.

The general rule is that the failure to object to prejudicial comments in an opponent’s closing argument constitutes a waiver of the objection, and any alleged error by reason of the comments will not be considered on appeal. (Lindroth, 407 Ill. at 136; Eaglin v. Cook County Hospital (1992), 227 Ill. App. 3d 724, 592 N.E.2d 205.) This rule traces its lineage to Earll v. People (1881), 99 Ill. 123, 136, wherein our supreme court stated “[t]he law will not permit counsel to silently sit by and witness such an irregularity, without any effort to prevent it in the court where it occurs, and then allow him to take advantage of it in a court of review.” The reason for the rule is apparent. In the absence of objection, the trial court is deprived of the opportunity to remedy the situation with a curative instruction. See Marotta v. General Motors Corp. (1985), 108 Ill. 2d 168,179, 483 N.E.2d 503.

The rule as stated, however, is not without exception. Prejudicial remarks made in argument may be considered on review despite counsel’s failure to object if they are so prejudicial that they deprive the opposing party of a fair trial. City of Quincy v. V.E. Best Plumbing & Heating Supply Co. (1959), 17 Ill. 2d 570, 162 N.E.2d 373; Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249.

We believe that before we may appropriately consider prejudicial remarks in closing argument absent a timely objection, we must first consider whether the prejudicial effect of the remarks could have been ameliorated had a timely objection been sustained and a curative instruction given to the jury.

The impropriety of commenting upon an opponent’s failure to call a witness when that witness was not under the opponent’s control is clear. (Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 382, 553 N.E.2d 291.) By engaging in such commentary, counsel is attempting to undermine the credibility of the opponent’s case by suggesting that the jury may infer that the witness’ testimony would have been adverse to the opponent, and perhaps more damning, that the opponent is concealing relevant evidence from the jury.

In this case, we are faced with an unusual circumstance. As indicated earlier, the missing witness instruction was warranted because of UCHC’s failure to call Dr. Hibbard to testify, and plaintiff’s attorney had every right to comment upon Hibbard’s absence and to suggest the inference permissible from that absence. In this circumstance, the negative impact of a missing witness argument would have been present in any case. The impropriety arose when plaintiff’s counsel referred to the absence of Doctors Smallwood, Anderson, Blanks and Michelleti and Nurse Dennis.

Under normal circumstances, we can appreciate why an attorney might wish to forego an objection in the presence of the jury, as it would only reinforce the implication that there was something being hidden. In this case, however, a timely objection, properly sustained, followed by an instruction to the jury, could have remedied the circumstance. In sustaining the objection, the court would have been well within its authority to inform the jury that the reason they could draw no adverse inference from the absence of the four doctors and the nurse was because they were not under the control of defendant and were equally accessible to plaintiff. In our minds, the trial court could have gone so far as to further instruct the jury that, as they were not to draw any inference adverse to defendants, they were similarly precluded from drawing such an inference against plaintiff by reason of her failure to call the individuals as witnesses. Had that been done, any prejudice that might have flowed from the remarks would have been negated as plaintiff’s attorney’s improper comments would have been as applicable to his own client as they were to the defendants. Even if defendants were not inclined to object during plaintiff’s closing argument in the presence of the jury, they made no attempt to seek a sidebar conference with the trial judge after plaintiff’s argument to request remedial relief. While we do not wish to be understood as sanctioning the conduct of plaintiff’s counsel, we do not think, under the circumstances of this case, that defendants can ignore such comments, seek no relief from the trial judge, and claim error only after the jury have returned a verdict against them. As such, by failing to object to plaintiff’s comments during the closing argument or the first available opportunity thereafter, defendants have waived the issue for appeal. Eaglin, 227 Ill. App. 3d at 732.

Courts of review are empowered to reverse a jury verdict and order a new trial if the verdict is against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) In determining whether a jury verdict is against the manifest weight of the evidence, the court weighs the evidence viewed in its light most favorable to the appellee and orders a new trial if the verdict is palpably erroneous, wholly unwarranted, and an opposite result is clearly evident. (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 415, 458 N.E.2d 530.) It is the function of the jury to weigh contradictory evidence, judge the credibility of the witnesses and draw the ultimate conclusion as to the facts. (Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 167 N.E.2d 212.) In determining the necessity of a new trial, a reviewing court does not sit as a second jury and reevaluate the credibility of the witnesses. Dabros v. Wang (1993), 243 Ill. App. 3d 259; Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 362 N.E.2d 446.

In this case, the jury heard the testimony of the plaintiff’s expert, Dr. Masterson, in support of the theory that the applicable medical standard of care had been breached. The jury heard the testimony of defendant Dr. Cibils and defendants’ expert, Dr. Quilligan, to the effect that Dr. Cibils’ decision to cancel the C-section procedure at 12:28 p.m. was within the standard of care owed under the circumstances. The jury chose to believe Dr. Masterson on the question. From an examination of the record as a whole, we are unable to hold that the jury’s finding on the issue was palpably erroneous and wholly unwarranted. The fact that Dr. Masterson’s opinions may have been weakened on cross-examination and were contradicted by both Dr. Cibils and Dr. Quilligan does not compel a contrary conclusion. The evidence received by the jury on the standard of care question consisted of conflicting expert testimony. The weight to be afforded such testimony and the credibility to be assigned to the witnesses was for the trier of fact. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 260, 381 N.E.2d 279; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423-24, 328 N.E.2d 301.

Finally, we reject defendants’ contention that a damage award of $1.6 million for parental loss of society resulting from the death of an infant minutes after birth is per se excessive. As we have indicated, parents are entitled to a rebuttable presumption of substantial pecuniary loss upon the death of a child. (Bullard, 102 Ill. 2d at 517.) The loss is compensable in a wrongful death action even in the case of stillbirths. (Seef v. Sutkus (1991), 145 Ill. 2d 336, 583 N.E.2d 510.) Our supreme court has repeatedly found that the amount of damages to be assessed under the circumstances of any given case is a matter within the discretion of the jury. (Baird v. Chicago Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413; Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63.) The jury’s assessment of damages will not be set aside on review unless it was the result of passion or prejudice, falls outside the limits of fair and reasonable compensation, or shocks the judicial conscience. Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 510 N.E.2d 1208.

In arguing the excessiveness of the verdict, defendants draw our attention to the fact that $1.6 million in damages for parental loss of society with a deceased newborn child is “an all-time high verdict in Cook County,” citing as authority the Cook County Jury Verdict Reporter. Such a comparison argument is inappropriate before a trial court as well as this court. Damage awards cannot be tested for excessiveness by comparison with verdicts in other cases. Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329, 481 N.E.2d 957.

After scrutinizing the record, we are unable to say that the verdict in this case was the result of passion or prejudice, nor are we able to find that an award of $1.6 million in damages is outside the limits of fair and reasonable compensation.

Accordingly, for the reasons set forth above, the judgment of the trial court is affirmed.

Affirmed.

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