author: JUSTICE GEIGER

text:
      In re PETITION TO ANNEX CERTAIN PROPERTY TO THE CITY OF WOOD DALE (John E. Matulis et al., Petitioners-Appellants, v. Montalbano Builders, Inc., et al., Objectors-Appellees).
    Second District
    No. 2 — 92—0407
    Opinion filed April 8,1993.

      Patrick M. Loftus, of Law Offices of Patrick M. Loftus, of Addison, and Erwin W. Jentsch, of Mount Prospect, for appellants.
    Barry L. Moss, Stuart D. Gordon, and George A. Marchetti, all of Moss & Bloomberg, Ltd., of Bolingbrook, for appellee Village of Addison.
    Michael N. Schwartz and Thomas J. Bamonte, both of Sachnoff & Weaver, Ltd., of Chicago, for appellee Montalbano Builders, Inc.
   JUSTICE GEIGER

delivered the opinion of the court:

The petitioners, John E. Matulis and others, appeal from the circuit court’s judgment of March 6, 1992, striking and dismissing their annexation petition. We affirm.

On October 7, 1991, petitioner-affiant John E. Matulis and numerous other petitioners (petitioners) filed in the circuit court a petition to annex a certain described tract of land to the City of Wood Dale, Illinois (Matulis petition). The petition requested the entry of an order of the court submitting the question of annexation to the corporate authorities of that city, presumably according to the provisions of section 7 — 1—2 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—2). The petition alleged that the tract of land was contiguous to the City of Wood Dale; that the tract was not within the corporate limits of any municipality; and that the undersigned petitioners were a majority of the record owners and a majority of the electors residing on the tract of land.

Next to the signatures appended to the petition were various handwritten designations such as: “property owner,” “property reg. voter,” “owner-voter,” “owner,” “owner reg voter,” “owner registered,” “voter, property owner,” and “homeowner voter.” No addresses of the signatories were placed on the petition itself. The attached affidavit of John E. Matulis recited that he was one of the petitioners; that the persons signing the petition constituted a majority of the property owners of record and a majority of the electors of the territory described; that he had personal knowledge of the allegations contained in the petition; and that the allegations were true. In the record, there is also a typed list of names and street addresses allegedly corresponding to those of the signatories. The list was filed on October 16, 1991, without comment; there is no indication in the record that it was filed by motion or incorporated into the petition by amendment.

The objectors, Montalbano Builders, Inc. (Montalbano), and the Village of Addison (Addison), filed motions to dismiss the petition. (See Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—3.) Montalbano filed its emergency motion to dismiss on October 16, 1991; the motion averred that the Matulis petition lacked priority and was jurisdictionally defective because, in July 1991, Montalbano had previously filed a voluntary petition (see Ill. Rev. Stat. 1991, ch. 24, par. 7— 1 — 8) to annex its property, located in unincorporated Du Page County, to Addison (Addison petition). Montalbano’s property was also included in the property described in the Matulis petition. According to the Montalbano motion, its property, together with a contiguous parcel of land for which Montalbano had entered into a purchase agreement, was commonly known as the “Moose Lodge Property” and was already the subject of public hearings; Addison’s Plan Commission had approved a pre-annexation agreement. A copy of the Addison petition is included in the record.

On October 16, 1991, Addison also moved to strike and dismiss the Matulis petition on the ground that it was facially invalid because it did not clearly show that the signatories were the record owners of property in the territory or that they were registered voters within that territory (electors). Among other things, Addison objected that many of the signatures were illegible; that there were no addresses given for the signatories, nor were specific lots or parcels identified as belonging to the signatories; there were no facts showing that the signatories were registered voters (“electors”) in the territory; and that it was impossible to tell from the petition itself the total number of record owners and electors who would constitute the majority necessary for annexation under section 7 — 1—2 of the Code. Addison’s motion concluded that the petition was factually deficient, was conclusory, and was therefore invalid on its face.

On December 6, 1991, petitioners filed a motion to strike the objectors’ motions to dismiss. Among other things, the petitioners urged that the circuit court was required to enter an order setting a hearing and, thereafter, interested persons could file objections (see Ill. Rev. Stat. 1991, ch. 24, pars. 7 — 1—2, 7 — 1—3); that the cause was to be heard without further pleadings; that the petition was to be supported by affidavit of one of the petitioners that the signatures represented a majority of the property owners and a majority of the electors of the territory; and that a petition so verified must be accepted as prima facie evidence of such facts (see Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—4). The petitioners characterized the objectors’ motions as improper and premature.

Alternatively, the petitioners argued that their petition was sufficient where it included an affidavit conforming literally to the language of the Code (see Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—4). Additionally, in response to the motions attacking the jurisdictional requisites of their petition, the petitioners argued that Montalbano’s voluntary petition filed with Addison (Addison petition or second petition) on July 11, 1991 (according to Montalbano’s supplemental corrected affidavit filed by its controller, Richard P. Brandstatter), did not enjoy priority because on the same day, July 11, Montalbano still had pending and undefeated a prior petition Montalbano had filed with the City of Wood Dale (Wood Dale petition or first petition) which it had not yet withdrawn. Appended was an unsigned affidavit of Geraldine Jacobs, city clerk of the City of Wood Dale; the affidavit stated that she received a letter dated July 11 from Richard L. Wexler withdrawing the pending Wood Dale petition to annex the Moose Lodge Property.

The petitioners also argued that the Addison petition was not valid because the subject property was not yet contiguous to Addison or was not part of a larger annexation proceeding. The petitioners also characterized the Addison petition as an unauthorized “conditional” petition. On December 10, 1991, the petitioners filed the signed affidavit of Geraldine Jacobs and the Wexler letter of July 11. The Wexler letter was dated July 11, 1992; on it was typewritten the statement “VIA MESSENGER DELIVERY,” and it was file-stamped “Received July 12, 1991 City of Wood Dale.” In his letter of withdrawal, Wexler explained that another opportunity to annex with Addison pursuant to an annexation agreement would save his clients in excess of $250,000, and he concluded that the prior Wood Dale petition to annex the Moose Lodge Property “shall hereby be deemed to be and shall be null and void.”

The supplemental affidavit of Richard P. Brandstatter filed in February 1992 stated that, on November 18, 1991, Addison’s village board had passed an ordinance approving the annexation agreement covering the Moose Lodge Property and a rezoning of the property to a B-3 service district; on November 18, Montalbano and Addison had also signed the annexation agreement. Additionally, two landowners in the area between Addison and the Moose Lodge Property had voluntarily agreed to annexation. On November 20, 1991, the owners of certain property between Addison’s boundary and the Moose Lodge Property filed their petition to annex the remaining intervening property to Addison (the connecting property petition), and an order of the court approved the connecting property petition on February 6, 1992. After the final action on this connecting property petition, the Moose Lodge Property would have a common boundary with Addison. The village was scheduled to take final action on this connecting property petition on February 18, 1992.

Montalbano’s March 5, 1992, reply memorandum in support of its motion to dismiss petitioners’ petition and in response to their countermotion argued that, as a result of the court’s ruling of February 6 upholding the connecting property petition, the Moose Lodge Property was now contiguous with the Village of Addison and the annexation of the Moose Lodge Property was part of a larger, orderly effort by Addison to lawfully expand its municipal boundaries. According to the memorandum, from July through October 1991, Addison held public hearings and meetings on the annexation of the Moose Lodge Property. On November 18, 1991, Addison passed an ordinance approving the annexation agreement covering the Moose Lodge Property, and the agreement was executed by the parties. The 33-page annexation agreement was appended. Montalbano pointed out that amended section 7 — 1—8 of the Code provides that the property may be annexed if it is “contiguous to a municipality at the time of annexation.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—8.

Montalbano also pointed out that section 11 — 15.1—1 provides that a municipality may .enter into an annexation agreement with one or more owners of record and may annex land in the manner provided by article 7 of the Code “at the time the land is or becomes contiguous to the municipality”; the agreement is valid for a period of up to 20 years from the date of execution. (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 15.1—1.) Montalbano urged that the law provided that contiguity did not have to exist at the time it initiated its petition, but contiguity must only exist at the time of annexation. Therefore, Montalbano’s pending petition was not initially invalid for want of contiguity.

Montalbano maintained that its petition was first in time and was valid; therefore, the Matulis petition, which lacked priority, was facially invalid and should be dismissed. According to Montalbano, the Wexler letter withdrawing the first petition from Wood Dale was sent by same-day messenger on July 11, 1991, and the Addison petition was sent also on the same day by messenger. Because Montalbano had a right to withdraw its voluntary first petition at any time, it rejected petitioners’ argument that Montalbano’s second petition did not have priority because of the overlap in time between the withdrawal and receipt of its first petition from Wood Dale and its subsequent filing on the same day (July 11, 1991) of its second petition, the Addison petition. In any case, Montalbano argued that there was no prejudice shown by any overlap in its withdrawing and subsequent filing of the petitions on the same day.

Montalbano also challenged as without authority petitioners’ assertion that a petition “conditioned” on the execution of an annexation agreement was invalid. Montalbano contended that annexation agreements are routinely executed after the petition has been filed. The record contains a copy of the court’s order of February 6, 1992, in cause No. 91 — MC—05 approving the annexation petition of certain other (unnamed) petitioners for submission to the corporate authorities of Addison for final action. There is also a letter purporting to file the Moose Lodge Property petition with Addison. The letter is addressed to Lucille A. Zucagro, the village clerk of Addison; it is marked “VIA MESSENGER” and dated July 11, 1991. There is also an amended supplemental affidavit of Brandstatter attesting to the filing on July 11 and the various public hearings and meetings of the village officials regarding the petition.

Addison’s memorandum attacked the factual sufficiency of the Matulis petition with respect to the statutory requirements that a petition contain the signatures of a majority of record owners of land in the territory and a majority of electors (registered voters) residing in the territory and concluded that the petition failed to meet any of the specific fact-pleading requirements under the Code of Civil Procedure. Due to illegible signatures, the lack of addresses, and insufficient designations as to the signatories’ voting or residential status, Addison urged that it could not be determined from the face of the petition itself whether the owners and electors met the statutory requirements of section 7 — 1—2 of the Code. Addison posited that a conclusory affidavit could not cure a factually deficient pleading or petition; therefore, the Matulis petition should be stricken and dismissed.

At the hearing on the motions on March 6, 1992, it was brought to the court’s attention that Addison had taken final action on the petition to annex to that village. After hearing further arguments, the court found that Montalbano’s Addison petition filed on July 11, 1991, had priority over that of the petitioners. The court granted the motions to strike and dismiss the Matulis petition for the reasons set forth in the supporting memoranda and argued in open court; however, the motion to strike the petition on the ground of illegibility was denied. The order noted that counsel for the petitioners had made an offer of proof regarding the names and addresses of the petitioners. This timely appeal followed.

After examining petitioners’ arguments on appeal, we perceive that the issues and subissues before this court are: (1) whether the Matulis petition was legally and factually sufficient where it was supported by affidavit pursuant to the Code and where the petition is alleged to have constituted prima facie evidence so as to require the objectors to overcome the facts so presented; (2) whether Montalbano’s Addison petition was entitled to jurisdictional priority regarding the same property (Moose Lodge Property) where (a) its voluntary Addison petition was filed on the same date its first voluntary petition was withdrawn from Wood Dale and there is an alleged overlap of time between the withdrawal of the first and the filing of the second petition and (b) the Montalbano property was not contiguous at the time the petition was initiated; (3) whether the allegedly “conditional” Addison petition was entitled to priority; and (4) whether the objectors’ motions to strike and dismiss were premature and should have been stricken. Each objector-appellee adopts the appellate arguments advanced by the other.

JURISDICTIONAL PRIORITY

Because of its importance in determining the overall controversy, we first address whether Montalbano’s Addison petition was entitled to “jurisdictional priority.” (See People ex rel. Village of Northbrook v. Village of Glenview (1989), 194 Ill. App. 3d 560, 564-65.) The general rule governing conflicting petitions to annex or incorporate the same tract of land is that the first to initiate an annexation is entitled to priority over the territory against all other parties initiating such a proceeding at a later date. Priority in time, typically determined by the time of the “initiation” of the annexation proceedings, is conclusive. Village of Mundelein v. Village of Long Grove (1991), 219 Ill. App. 3d 853, 859.

It is critical to our analysis to note that priority, as the term is applied to competing annexation proceedings, is not dependent on the correctness or validity of the annexation petitions. Rather, as we have recently explained, priority refers to the well-established concept that multiple, overlapping annexation proceedings must generally be considered and completed in the order in which they were “initiated.” Mundelein, 219 Ill. App. 3d at 858-59, citing City of Countryside v. Village of La Grange (1962), 24 Ill. 2d 163, 166; In re Petition of the Village of Long Grove to Annex Certain Territory (1987), 156 Ill. App. 3d 1056, 1059.

As in the present case of the Addison petition, a section 7 — 1—8 voluntary annexation proceeding is “initiated” by the filing of a petition by the landowner, and the annexation is completed by the final action of the municipality. (Mundelein, 219 Ill. App. 3d at 859; Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—8.) Public policy and fundamental fairness favor voluntary annexations by landowners over involuntary annexations. Northbrook, 194 Ill. App. 3d at 565, 567.

As in the case of the Matulis petition, a section 7 — 1—2 annexation is court controlled and is “initiated” by filing in the circuit court a written petition signed by a majority of the owners of record in the territory to be annexed and a majority of the electors residing in such territory. In re Annexation to the City of Prospect Heights (1982), 111 Ill. App. 3d 541, 542.

Alternatively, an annexation under section 7 — 1—2 of the Code may be “initiated” by the enactment and filing in the court of a municipal ordinance expressing a desire to annex the described territory. (In re Annexation to the City of Prospect Heights (1982), 107 Ill. App. 3d 1045, 1048.) Various steps must be taken to complete the annexation process, including, among others, the provision of notice and a hearing upon the petition to permit objections and to ascertain its validity and, depending on the type of petition, court action to submit for final action the question of annexation to the electors or corporate authorities. Ill. Rev. Stat. 1991, ch. 24, pars. 7-1-2 through 7-1-5.

The petitioners argue that because Montalbano’s petition to annex to Wood Dale was still “pending” on July 11 at the time the second petition to annex to Addison was filed, the petition to annex to Addison was a nullity and did not enjoy priority over the petitioners’ Matulis petition which was filed three months later in October. We believe this is an imprecise statement of the facts and the law as applied here. In challenging the priority of Montalbano’s Addison petition, the petitioners initially rely on a general formulation of the priority rule which states that, where an annexation petition is pending with respect to the same territory, no other annexation may be initiated (see People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 455, 459). In our estimation, this is an incomplete and overly simplistic formulation of the rule.

A careful reading of Countryside, Mundelein, and other cases persuades us that the more complete formulation of the rule is this: as to the same territory or a part thereof, an annexation petition or proceeding may not legally be initiated or effectuated so long as a prior petition or proceeding remains pending and undefeated or unresolved. (Countryside, 24 Ill. 2d at 166; Mundelein, 219 Ill. App. 3d at 859; People ex rel. First National Bank v. City of North Chicago (1987), 158 Ill. App. 3d 85, 106.) In other words, a later petition, filed during the pendency of an earlier initiated petition, does not lawfully come into being and enjoy jurisdictional priority so long as the earlier petition remains pending and unresolved. This does not mean that a petition may not be filed during the pendency of a prior petition.

As a practical matter, successive petitions or proceedings are routinely “initiated” (but not legally) during the pendency of others prior in time. However, a later-filed petition, even though initiated during the pendency of another petition, may become “legally” initiated if the prior petition is abandoned, defeated or otherwise deemed invalid, that is, a later petition may acquire “jurisdictional priority.” This is what occurred in Countryside, which is the leading case applying the priority rule. We examine that case below. Thus, where there are overlapping annexation claims, a court will first consider the jurisdictional priority of a petition initiated first in time over a later-initiated claim; the court will then resolve its validity before it can consider the later-initiated proceeding. Mundelein, 219 Ill. App. 3d at 859.

In Countryside, the City of Countryside initiated the annexation of an 80-acre tract of land by adopting an ordinance and filing it in the county court on February 23, 1961. The Village of La Grange later filed objections to Countryside’s annexation on the ground that a portion of the territory which Countryside sought to annex had already been annexed by La Grange by ordinance on March 15, 1961. Under the statutory procedure used by La Grange, the purported annexation would be considered completed upon the adoption of the ordinance. The Countryside court first held that La Grange had no power or authority to effect an annexation of the same territory so long as Countryside’s petition was on file and undefeated.

In Countryside, the owners of the 80-acre tract also filed objections in the case. They had filed an earlier petition on June 8, 1960, with the Village of McCook asking that village to annex their property. They argued that, since their petition regarding the same tract that Countryside sought to annex was still on file with McCook and remained undefeated, Countryside could not attempt to annex the same property. Relying on People ex rel. Village of Worth v. Ihde (1961), 23 Ill. 2d 63, the supreme court held that since McCook had taken no further action on its petition by the time Countryside had initiated its annexation on February 23, 1961, this delay and inaction deprived McCook of any priority which it might have acquired over the territory in question. Therefore, the McCook petition (which was first in time and lawfully initiated) was not a bar to Countryside’s later petition. We view this latter holding of Countryside to mean that: (1) an earlier jurisdictional priority may be abandoned (see Ihde, 23 Ill. 2d at 68); and (2) a later petition filed during the pendency of an earlier initiated proceeding may then acquire jurisdictional priority when the earlier petition is defeated or abandoned.

Applying these principles to the facts in the case at bar, we believe that Montalbano’s first petition filed with Wood Dale was effectively abandoned when it withdrew that petition on July 11, 1991, by sending a messenger with a notice of withdrawal on that date. It is well established that, unless otherwise restricted by law, a petitioner has the right to withdraw (his name) from a petition at any time until final action is taken on it. (See Crocher v. Abel (1932), 348 Ill. 269, 274.) A body authorized to act on a matter does not acquire or retain jurisdiction over the matter of the petition unless the requisite number of names on the petition remain in effect; a timely withdrawal may defeat jurisdiction. (See Konald v. Board of Education of Community Unit School District 220 (1983), 114 Ill. App. 3d 512, 515-21.) The fact that the city clerk of Wood Dale did not mark the withdrawal received until July 12 is of no legal consequence under the particular facts presented. To conclude otherwise would be to put form over substance. The intent to abandon its first voluntary petition was manifested on July 11 when the objector issued its notice of withdrawal to Wood Dale and immediately thereafter filed a new petition with the Village of Addison. The objector did what any practical businessperson or lawyer would have done in order to protect its priority and to preempt any other involuntary annexation of its property from intervening between the time it withdrew its first petition with Wood Dale and filed its second petition with Addison.

The petitioners have cited no pertinent authority requiring that the withdrawal be effective only as of the date it was officially acknowledged. The petitioners attempt to characterize Montalbano’s second petition as a nullity because of the possible overlap in time. Even assuming arguendo that the withdrawal was not effective until officially acknowledged as received by Wood Dale, there was no intervening petition and therefore no prejudice to any other party. Under the principle that a petition later in time can acquire legal jurisdictional priority when an earlier one is abandoned or defeated, the Addison petition was still next in line as of July 12. The objector’s Addison petition therefore acquired jurisdictional priority over the Matulis petition which was filed three months later, and the Addison petition could only lose that priority if it were shown to be otherwise defeated or invalid. The trial court correctly ruled that the Addison petition had jurisdictional priority over any subsequent one.

FACIAL VALIDITY OF OBJECTORS’ PETITION

The petitioners next argue that Montalbano’s property was not contiguous to Addison at the time the Addison petition was filed and was not part of a larger pending proceeding; therefore, the Addison petition was invalid. The petitioners cite no relevant current authority to support these arguments which are wholly without merit. The plain language of section 7 — 1—8 of the Code shows that contiguity in a proceeding under that section is required only “at the time of annexation” and need not be contemporaneous with the filing of the petition. (People ex rel. Village of Northbrook, v. Village of Glenview (1989), 194 Ill. App. 3d 560, 568.) In addition, in conjunction with the annexation procedures outlined in article 7 of the Code, section 11 — 15.1—1 of the Code allows a municipality to enter into an annexation agreement regarding land that “is or becomes contiguous” to the municipality without affecting the validity of the agreement for a period of up to 20 years from the date of the execution of the agreement. Ill. Rev. Stat. 1991, ch. 24, par. 11-15.1-1.

Similarly, we find no relevant authority supporting the petitioners’ argument that the initially noncontiguous property, which was the subject of the Addison petition, must be part of a larger, pending, simultaneous annexation proceeding. Based on the meager facts and law presented by the petitioners, we are unable to read such a mandatory requirement into section 7 — 1—8 of the Code in conjunction with section 7 — 1—48 of the Code (Ill. Rev. Stat. 1991, ch. 24, pars. 7 — 1—8, 7 — 1—48). Neither do we find such a requirement expressed in Northbrook (194 Ill. App. 3d at 568-69), a case cited by the petitioners. Section 7 — 1—48, discussed there, merely permits the annexation of multiple parcels in accordance with article 7 as part of a single annexation proceeding.

In any event, there are only limited facts in the record before us pertaining to the connecting parcel petition upon which final action by Addison was taken during the course of the proceeding. It appears that the requisite contiguity was achieved and the Addison petition became final during the course of this proceeding. We have already concluded that the Addison petition did not require contiguity at the time it was initiated. The trial court apparently took judicial notice of the other ongoing proceeding and presumably considered the present proceeding to be part of a larger effort, but we do not have sufficient facts in this record upon which to examine any alleged impropriety stemming from the other proceeding — a proceeding which is not before this court. Any doubts resulting from the incompleteness of the record must be resolved against the appellants. (Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1099.) We cannot review matters outside the record. Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 518.

The petitioners’ argument that the Addison petition was invalid because it was “conditioned” on the execution of an annexation agreement also must fail. Again the petitioners have provided us no authority why a voluntary petition must be deemed facially invalid because it is conditioned upon the execution of an annexation agreement. People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 414-15, cited by the petitioners, most assuredly does not stand for the proposition that a petition loses its jurisdictional priority merely because the petitioner seeks to obtain certain agreements from a municipality as a condition of proceeding with the annexation. In fact, that court rejected the argument that such conduct constituted an abandonment of the petition.

We decline to hold that a conditional annexation agreement will necessarily invalidate an otherwise voluntary, facially valid petition to annex. We have already noted that public policy favors voluntary annexations. We agree with the objectors that, through the provisions for annexation agreements, the legislature has made available an orderly mechanism by which municipalities, landowners, and electors can structure the inclusion of unincorporated territory into an adjoining municipality. Such voluntary agreements facilitate informed choices by the parties as to whether the territory should be annexed and under what conditions.

The petitioners have furnished us with no authority and no compelling reason why an otherwise voluntary, facially valid annexation petition should be invalidated because it is conditioned upon the execution of an annexation agreement, and we will not disturb an otherwise valid petition on this ground. The statutory provisions relied on are silent as to when an annexation agreement must be executed. If the legislature wishes to restrict the use of petitions which incorporate conditional annexation agreements, it can easily do so.

VALIDITY OF THE PROCEEDINGS

The petitioners also argue that the objectors’ motions should have been stricken as premature and improper because the trial court was required to set a time for a hearing not less than 20 nor more than 30 days after the filing of the petition or ordinance (Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—2(a)), and only then may interested persons file objections. The petitioners also argue that the cause is to be heard without further pleadings (see Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—4), and the pleadings are limited to objections to the petition (presumably only as stated in section 7 — 1—3 of the Code); the petitioners also complain that the objectors should not base their motions to dismiss on the provisions of the Code of Civil Procedure (see Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 612, 2— 615, 2-619).

These arguments are disingenuous at best and frivolous at worst. The petitioners disregard the long-established authority which states that the time-for-hearing provisions in section 7 — 1— 2(a) are merely directory and not mandatory for the court. The failure of the court to fix a date for hearing specified by section 7 — 1— 2(a) of the Code therefore does not affect the validity of the proceedings. In re Annexation of Certain Territory to the City of Darien (1973), 16 Ill. App. 3d 140, 145; see also In re Disconnection of Certain Territory from the Village of Machesney Park (1984), 122 Ill. App. 3d 960, 966.

Moreover, the procedures in annexation cases are in fact controlled by the Code of Civil Procedure to the extent they are not regulated by the Municipal Code. (In re Petition of the Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 543; Ill. Rev. Stat. 1991, ch. 110, par. 1 — 108(b).) According to section 7— 1 — 3 of the Code, the objectors could file their objections at any time after the filing of the petition but not less than five days prior to the date fixed for the hearing. The objections here were not untimely as they were filed after the petition and well before the hearing.

The objections are not limited solely to the four matters specified in section 7 — 1—3 of the Code, but may go to “any matter going to the validity” of the petition or ordinance. (In re Petition of the Village of Kildeer to Annex Certain Property (1987), 162 Ill. App. 3d 262, 269, quoting City of East St. Louis v. Touchette (1958), 14 Ill. 2d 243, 248.) Here, utilizing established pleading procedures under the Code of Civil Procedure, the objectors properly intervened to challenge the jurisdictional aspects of the petition and sought dismissal based on its invalidity, a proper remedy under the Municipal Code (see Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1—4).

In view of our prior discussion, we conclude that Montalbano’s Addison petition was facially valid and was first in time. It acquired jurisdictional priority over the Matulis petition which contained land encompassed by the Addison petition. During the pendency of the Addison annexation petition (which annexation appears to have been completed during this proceeding), the Matulis petition was never amended and could not acquire jurisdictional priority during the proceedings below which are the subject of this appeal. The trial court’s ruling on the jurisdictional priority of the Addison petition must be affirmed.

INVALIDITY OF PETITIONERS’ PETITION

As an additional ground to affirm the trial court, we also believe that the Matulis petition was deficient as to its jurisdictional facts and was therefore facially invalid. According to section 7 — 1— 2, among other things, the petition must demonstrate several jurisdictional facts including: (1) the signatures of a majority of the owners of record of land in the territory; (2) the signatures of a majority of the electors, that is, registered voters residing in the territory; (3) the contiguity of the territory with the municipality to which annexation is requested; (4) the territory is not within the corporate limits of another municipality; and (5) an adequate legal description of the territory. Ill. Rev. Stat. 1991, ch. 24, pars. 7 — 1— 1.1, 7-1-2.

The objectors complain that the facts in the petition are deficient in showing that the signatories are, in fact, the owners of record of specific property in the territory. There are no addresses given for the signatories, and no particular parcels are identified as being owned by the signatories; similarly, the signatories are not identified specifically as “electors,” that is, registered voters residing in the territory. The objectors claim that it is impossible to tell from the facts in the petition what constitutes a majority of owners and electors and that the petition as well as the affidavit contain merely conclusions of fact and law. The objectors argue that a petition should be treated as a pleading and must be fact specific. The thrust of their argument is that a conclusory affidavit, even though statutorily sufficient, cannot cure a conclusory petition. We agree.

We have noted that where the specific statute is silent, the proceedings will be governed by the Code of Civil Procedure. (Kildeer, 124 Ill. 2d at 543.) The petition must allege specific facts to bring it within the statute. (See First National Bank v. Village of South Pekin (1940), 303 Ill. App. 269, 279-80, rev’d in part on other grounds sub nom. Illinois Central R.R. Co. v. Village of South Pekin (1940), 374 Ill. 431.) A petition is usually defined as a request or application in writing made to a court requesting judicial action. (Benton Coal Mining Co. v. Industrial Comm’n (1926), 321 Ill. 208, 214.) As such, a petition is a pleading; it must conform to the statute granting the right and must show all the facts necessary to authorize the court to act (Brown v. VanKeuren (1930), 340 Ill. 118, 122). The requirements for the circuit court’s statutory subject-matter jurisdiction demand strict compliance, and proof of the court’s jurisdiction must affirmatively appear in the record. Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 302; see Frye v. Hunt (1936), 365 Ill. 32, 36-38.

Illinois is a fact-pleading State, and a pleading must contain specific facts to bring the claim within the legally recognized cause" of action; otherwise, the pleading must be dismissed. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308.) On a motion to dismiss, the pleadings are construed strictly against the pleader, and a pleading which merely paraphrases the law as though to say that the case will meet the legal requirements without stating the essential facts is insufficient. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 423-24.) It is insufficient to plead mere conclusions. For example, in a negligence case, it is insufficient to allege that a defendant had a duty and that it was breached and the breach resulted in injury. The pleader must allege specific facts from which the law will raise a duty and from which it can conclude that the duty was breached and this resulted in injury to the plaintiff. See Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 969.

Here, the petition has signatures, but contains no specific facts regarding the addresses or residences of the signatories and whether they are in fact registered voters residing within the territory. In the absence of supporting facts, the designations “owner,” or “property owner,” or “voter” are insufficient to provide the facts needed to satisfy the statute. The petition does not state what number of signatures is required to form a majority and what number qualified in any category. There is no circulator’s certification of the signatures. While a conclusory affidavit itself may be sufficient if it tracks the language of a statute, we do not believe that a con: elusory affidavit can cure the factual deficiencies of the petition.

In Frye, the court determined that, in a petition-initiated proceeding to organize a high school district, where neither the affidavit nor the petition provided the information needed regarding whether the signatories were legal voters who actually resided within the territory and constituted a required specified number of petitioners and where the petition did not indicate whether the territory was contiguous and compact, the petition was insufficient. The petition contained insufficient jurisdictional facts, and it rendered the proceeding void.

Section 7 — 1—4 of the Code provides that a petition shall be supported by an affidavit stating that the signatures on the petition represent a majority of the property owners of record of land in the territory described and a majority of the electors of the territory therein described. Petitions so verified shall be accepted as prima facie evidence of such facts. (Ill. Rev. Stat. 1991, ch. 24, par. 7 — 1— 4.) Prima facie evidence is evidence sufficient to authorize a finding on the matter in issue unless contradicted or explained. (Shelter Mutual Insurance Co. v. Bailey (1987), 160 Ill. App. 3d 146, 157.) We are aware of the general rule that the affidavit itself may be deemed sufficient if it tracks the language of the statute. (See In re Petition to Annex Certain Territory to the Village of South Barrington (1972), 7 Ill. App. 3d 958, 962.) However, unlike the case before us, in two of the cases relied on by the petitioners, the evidentiary record clearly showed that the information in the petition was also sufficient. See Barrington, 7 Ill. App. 3d 958; In re Petition for Annexation of Territory in the County of Kankakee (1961), 30 Ill. App. 2d 391.

In the other two cases cited, these jurisdictional facts are not sufficiently described in the opinion (In re Annexation of Certain Territory to the Village of Oak Brook (1968), 91 Ill. App. 2d 27) or were actually contradicted by the evidence in the record (In re Petition to Annex Certain Real Estate to Crest Hill (1975), 26 Ill. App. 3d 99).

We believe that where the factual allegations in the petition render it vague or ambiguous, the petition cannot stand. (See In re Annexation to the Village of Green Oaks (1978), 58 Ill. App. 3d 842.) The facts in the petition should be complete enough so that the circuit court need only ascertain the truth of the allegations and whether the statutory requirements have been met; it should not have to guess at the sufficiency of the petition with respect to the statutory requirements. The obvious purpose of section 7 — 1—4 is that the affidavit be used to verify the facts stated in the petition. An affidavit is not a pleading and cannot ordinarily be made to take the place of a pleading. (See Brady v. Yount (1953), 42 Wash. 2d 697, 699, 258 P.2d 458, 459.) The affidavit goes to the truthfulness of the facts stated in the petition, not to the sufficiency of the allegations in the petition. By the language of the statute itself, it is the factual matter in the petition which enjoys a presumption of prima facie evidence, not the affidavit. A petition properly verified should enjoy the presumption of prima facie evidence only with respect to the specific facts actually alleged — facts which, if true, will sustain the cause of action.

By analogy to the Frye case, we believe that neither the affidavit nor the petition contained facts sufficient to confer subject-matter jurisdiction. The petition was not amended by the time of the hearing, and the offer of proof consisted merely of a typewritten list of names and addresses. This last-minute offer of proof was not a substitute for a timely and sufficient amended petition. Even an amended petition would not have “related back” to the time of the filing of the original petition. (See In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 65.) The court was therefore correct in finding the Matulis petition invalid because it was factually insufficient.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    DIXON DISTRIBUTING COMPANY, Plaintiff-Appellant, v. HANOVER INSURANCE COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 5 — 92—0071
    Opinion filed April 12,1993.
    Rehearing denied May 17,1993.

      John Dale Stobbs and James S. Sinclair, both of Stobbs & Sinclair, of Alton, for appellant.
    Jeffrey S. Hebrank, of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellee International Insurance Company.
    John H. Marshall, of Burns, Marshall, Burns & Hobbs, of Clayton, Missouri, for appellees Hanover Insurance Company and Massachusetts Bay Insurance Company.
    No brief filed for appellee Patrick Hanneken.
   JUSTICE LEWIS

delivered the opinion of the court:

“Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.”

This appeal is from a summary judgment entered in favor of the defendants, Hanover Insurance Company (Hanover), Massachusetts Bay Insurance Company (Massachusetts), and International Insurance Company (International), in a declaratory judgment action brought by Dixon Distributing Company (Dixon). For reasons set forth below, we affirm in part, reverse in part, and remand.

On October 7, 1985, Patrick Hanneken filed a retaliatory discharge action against Dixon, alleging that he had sustained two work-related injuries while employed by Dixon, both of which were resolved in accordance with the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Hanneken further alleged in his complaint that Dixon’s president, Robert L. Dixon, who was also a named defendant, “exhibited bias and prejudice against [Hanneken] in the exercise of his rights as an employee under the Worker’s Compensation Act,” and that his termination from employment was a willful, intentional, and wrongful act in violation of section 4(h) of the Workers’ Compensation Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h).) Hanneken’s prayer for relief requested reinstatement in a “suitable position” and compensatory and punitive damages.

Dixon requested each of the defendant insurance companies to defend the suit under a package of comprehensive business insurance policies that Dixon had purchased simultaneously from defendants. Each policy required the insurance companies to defend lawsuits against the insured even if the suits were groundless, false, or fraudulent, so long as the terms of the policy covered the facts alleged in the complaints. Hanover initially defended under a reservation of rights but later withdrew and discontinued all defense of Dixon. International and Massachusetts refused to defend altogether.

On August 23, 1988, Dixon filed a complaint seeking a declaratory judgment against the insurance companies. After discovery was conducted in the underlying retaliatory discharge case, Hanneken filed an amended complaint, alleging that “the discharge from and refusal to rehire Plaintiff to his employment by [Dixon] was intentional and in retaliation of and solely for the exercise of [Hanneken’s] rights under the Illinois Worker’s Compensation Act in violation of the *** public policy of the State of Illinois,” again requesting reinstatement and compensatory and punitive damages.

The trial court, in the declaratory judgment case, ruled in favor of the insurance companies on the parties’ cross-motions for summary judgment, stating in its order of March 8, 1991: “It has become apparent to this Court that there can be no insurance coverage for the damages involved in a retaliatory discharge case.” The court based its decision primarily on the Seventh Circuit case of United States Fire Insurance Co. v. Beltmann North American Co. (7th Cir. 1989), 883 F.2d 564. On January 23, 1992, the trial court entered a revised order of judgment making the Dixon case appealable, since the underlying retaliatory discharge case was dismissed pursuant to a settlement on November 22,1991.

The appeal of the grant of summary judgment to the defendants in this case requires this court, on review, to inquire whether the pleadings, together with all other matters of record, pose any genuine issue of material fact. If any issue of material fact exists, then the trial court erred in its grant of summary judgment. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) This appeal, therefore, initially raises the issue of whether any of the insurance policies issued by defendants provided any possibility of coverage to Dixon for the underlying retaliatory discharge action. See J G Industries, Inc. v. National Union Fire Insurance Co. (1991), 218 Ill. App. 3d 1061, 578 N.E.2d 1259 (a case where the insurance policy did not cover the tort of retaliatory discharge).

Our analysis of this issue first requires an overview of the law concerning insurance coverage generally. “To determine whether the insurer has a duty to defend the insured, the court must look to the allegations in the underlying complaint and compare these allegations to the relevant provisions of the insurance policy.” (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 107-08.) It has long been established that if the complaint against the insured alleges claims even potentially within the policy’s coverage, the insurer must either defend under a reservation of rights or seek a declaration of rights via a declaratory judgment action. (Trovillion v. United States Fidelity & Guaranty Co. (1985), 130 Ill. App. 3d 694, 474 N.E.2d 953.) If there is any possibility of coverage, the insurer must defend even if the allegations of the underlying complaint prove to be false, groundless, or fraudulent. The insurance company cannot justifiably refuse to defend unless it is clear from the face of the complaint that there is no possibility of coverage. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 578 N.E.2d 926.

The duty to defend arises from the undertaking as stated in the policy. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 442 N.E.2d 245.) In order to determine if there is a duty to defend any particular lawsuit, the underlying complaint and the insurance policy will be construed liberally in favor of the insured, and all doubts and ambiguities must be resolved in favor of the insured. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 578 N.E.2d 926.

With the foregoing principles in mind, we must consider whether there is any possibility of coverage under any of the insurance policies issued by defendants. Although Hanover and Massachusetts filed a joint brief herein, it is clear that neither of their policies include any possibility of coverage. This fact is made crystal clear from Dixon’s brief, since Dixon does not argue that Hanover or Massachusetts has a duty to defend the retaliatory discharge action. Therefore, as to Hanover and Massachusetts, the grant of summary judgment by the trial court was proper. As a result, we will not discuss the policy language of any policy except that issued by International.

International admits that its policy is what is commonly referred to as an “umbrella policy.” An umbrella policy is recognized to provide unique and special coverage. It is often aptly called “catastrophe” insurance. Umbrella or catastrophe insurance has been defined as:

“ ‘[A] needed form of coverage which picks up, above the limits of all other contracts, such as automobile and homeowners coverages, to give the security and peace of mind so necessary today where jury verdicts, or court awards, may be very substantial, to discharge the unexpected, but potentially bankrupting, judgment.
The courts are not ignorant of [the] desirable socio-economic consequences attendant upon the providing of umbrella or catastrophe coverages.’ ” Illinois Emcasco Insurance Co. v. Continental Casualty Co. (1985), 139 Ill. App. 3d 130, 133, 487 N.E.2d 110, 112, quoting from 8A J. Appleman & J. Appleman, Insurance Law & Practice §4906, at 348, §4909.85, at 452 (1981).

While International’s policy is an umbrella policy, under certain circumstances, the policy acts as primary insurance, where there is coverage under the International policy but not under any other regular primary policy issued to Dixon. International argues, however, that there is no possibility of coverage under its policy for the retaliatory discharge action instituted against the insured because of the definition of “occurrence” contained in the policy.

International’s policy provides in pertinent part as follows:

“I. Coverage
The Company (International) agrees to pay on behalf of the insured the ultimate net loss * * * which the insured may sustain by reason of the liability imposed upon the insured by law, or assumed by the insured under contract, for:
(a) Bodily Injury Liability,
(b) Personal Injury Liability,
(c) Property Damage Liability, or
(d) Advertising Liability arising out of an occurrence.
II. Defense Settlement
With respect to any occurrence covered by the terms and conditions of this policy, but not covered *** by the underlying policies listed in Schedule A hereof or not covered by any other underlying insurance collectible by the insured, the company shall:
(a) Defend any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.”

The policy defines personal injury as “injury, such as but not limited to libel, slander, defamation of character, discrimination, false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution or humiliation which occurs during the policy sustained by a natural person.” Occurrence, with respect to personal injury, is defined as “an offense which results in personal injury, other than an offense committed with actual malice or the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of the insured.” The policy does not define “actual malice,” nor does it specifically exclude retaliatory discharge anywhere in the policy, even though there is an entire section entitled “Exclusions.” Neither the exclusions section nor any other section of the policy includes any exclusion for personal injury liability other than those listed in the definition of occurrence.

Dixon argues that the tort of retaliatory discharge falls under the personal injury definition, since it is a tort that is similar to the listed torts, and since the definition is not restricted but uses the open-ended phrase “such as but not limited to.” Dixon further argues that retaliatory discharge is not a tort requiring “actual malice” for its proof and that it is not committed in “willful violation of a penal statute or ordinance by or with the knowledge or consent of the insured.”

International, on the other hand, argues that the definition of occurrence in the policy excludes coverage for the tort of retaliatory discharge because retaliatory discharge is an offense committed with actual malice. International does not argue that retaliatory discharge is a “willful violation of a penal statute or ordinance committed by or with the knowledge or consent of the insured.” Therefore, we will not consider that part of the exclusion in our analysis. International urges this court to accept the reasoning of United States Fire Insurance Co. v. Beltmann North American Co. (7th Cir. 1989), 883 F.2d 564, as the lower court did.

In Beltmann, the Seventh Circuit Court of Appeals construed an insurance policy which defines personal injury and occurrence the same as in the International policy issued to Dixon. Beltmann also involved an underlying lawsuit against the insured for retaliatory discharge, which was on appeal after judgment had been entered in favor of the employee, contrary to the case sub judice, where the underlying lawsuit for retaliatory discharge had been settled. The issue in both cases is whether the policy excluded any obligation of the insurance company to defend a claim of retaliatory discharge against the insured. (Beltmann treated the issue in its case as a claim of retaliatory discharge and not as a fact that had been proven, even though a jury had returned a verdict, which included punitive damages, against the insured employer.)

Because Beltmann was a diversity action, Minnesota law governed the court’s construction of the term “actual malice.” The court next looked to Illinois law to determine what elements are necessary to prove a charge of retaliatory discharge, in order to decide the ultimate question of whether the tort of retaliatory discharge is an offense committed with actual malice in every case.

Beltmann first came to the following conclusion from Minnesota law:

“Both actual and simple malice require that the defendant acted intentionally with knowledge that her conduct was wrongful. Actual malice entails the further component of an intent on the part of the defendant to injure the plaintiff by the wrongful act, or an affirmative conscious and intentional disregard of the specific consequences which are certain to injure

the plaintiff as a result of the wrongful act.” (Beltmann, 883 F.2d at 568.)

Then the court reviewed Illinois law as to the elements to be proved for a claim of retaliatory discharge, which are (1) the employee was discharged; (2) the discharge was in retaliation for the employee’s activities; and (3) the discharge violated a clear mandate of public policy. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.) Actual malice, if it existed, had to be contained in the second element, which requires retaliation for the employee’s activities. The court then held that the discharge of an employee manifests an intent to harm the employee. An intent to harm an employee that violates public policy, so the reasoning goes, is done with actual malice.

The Beltmann court further reasoned that, under Illinois law, once a plaintiff has proven that his discharge was in retaliation for exercising a protected right, then he has de facto proved actual malice.

“[Retaliatory discharge carries with it a charge of actual malice subsumed within the elements of [the] claim. While [the plaintiff] may not have had to prove actual malice as an independent factor, he nonetheless has proved it by satisfying the formal elements of the tort of retaliatory discharge. If he had been unable to show actual malice, his claim for retaliatory discharge would have failed for failure to prove that the discharge was retaliatory in nature.” (Beltmann, 883 F.2d at 569.)

Therefore, “[s]ince actual malice is a necessary component of [the employee’s] claim, and because the insurance policy specifically excludes coverage for personal injuries arising from offenses committed with actual malice, [the employee’s] claim is not a covered claim.” (Beltmann, 883 F.2d at 569.) Thus, we are left with a holding that basically says that no matter what the facts may be, if the employee claims or alleges retaliatory discharge in the complaint, the umbrella insurance policy does not cover this claim.

Beltmann is not binding on this court, as decisions of the United States district courts and circuit courts of appeal are not binding upon Illinois courts. This court is free to consider the issues of this case independent of Beltmann. (City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 368 N.E.2d 891.) For reasons more fully set forth below, we respectfully disagree with the Beltmann court and the trial court in this case that the umbrella policy in question automatically excludes coverage for a retaliatory discharge suit.

We first need to review briefly the history of the tort of retaliatory discharge in Illinois. The Illinois Supreme Court, in the case of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, first recognized the tort of retaliatory discharge as an exception to the general rule that an employer may fire an at-will employee at any time for any reason or no reason. The foundation for this tort is stated clearly by the supreme court in Kelsay. “[A]n employer’s otherwise absolute power to terminate an employee at will should [not] prevail when that power is exercised to prevent the employee from asserting his statutory rights.” Kelsay, 74 111. 2d at 181, 384 N.E.2d at 357.

In 1981, the supreme court again considered the reasoning behind the tort. “[I]t is now recognized that a proper balance must be maintained among the employer’s interest in operating a business efficiently and profitably, the employee’s interest in earning a livelihood, and society’s interest in seeing its public policies carried out.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 129, 421 N.E.2d 876, 878.) The Palmateer court described the elements of the offense of retaliatory discharge succinctly. “All that is required is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy.” Palmateer, 85 Ill. 2d at 134, 421 N.E.2d at 881.

We have already set forth the elements necessary to state a valid claim for a retaliatory discharge as stated in Hinthorn. We need to further caution that the causality element requires more than a discharge in connection with filing a workers’ compensation claim. (Marin v. American Meat Packing Co. (1990), 204 111. App. 3d 302, 562 N.E.2d 282.) In other words, an employer cannot be held liable for a retaliatory discharge solely because the employer fired an employee who at one time or another filed a workers’ compensation claim. It must be affirmatively shown to the trier of fact that the discharge was primarily to retaliate against the employee for exercising the protected right and not for a lawful business reason. (Hartlein v. Illinois Power Co. (1992), 151 111. 2d 142, 160, 601 N.E.2d 720, 728.) The critical issue is the employer’s intent. Miller v. J.M. Jones Co. (1992), 225 111. App. 3d 799, 587 N.E.2d 654.

We note that nowhere in any case cited by any of the parties, nor in any case cited by the seventh circuit in Beltmann, is there any mention of malice, actual or otherwise, in a retaliatory discharge case. Nowhere is there any legislative history cited that shows that the legislature even discussed requiring a showing, an implication, a presumption, or an inference of malice in a retaliatory discharge action

under the Workers’ Compensation Act. Regardless of the wishes of International, the courts should not take words from an insurance policy and legislate those words into an element of existing law. The law should come from statutes duly passed by our legislature or from legal precedents set by our courts, and not from insurance policies.

We reluctantly feel compelled to enter the morass of examining the phrase “actual malice” only because Beltmann forces us to consider whether actual malice is a component of the tort of retaliatory discharge. The first source to use in seeking a plain and ordinary meaning for a word contained in an insurance policy is the dictionary, since many insureds are not lawyers nor would they have a law library available to assist them. Beltmann used Minnesota case law for its source. Webster provides a better definition of “malice” in saying it is: “(1) active ill will; desire to harm another or to do mischief; spite (2) Law evil intent; state of mind shown by intention to do, or intentional doing of, something unlawful.” Webster’s New World Dictionary 818 (3d College ed. 1988).

After looking at the definition of malice, we find ourselves in a situation similar to Justice Potter Stewart when he was attempting to define pornography. We may not be able to define malice, but we know it when we see it. (See Jacobellis v. Ohio (1964), 378 U.S. 184, 197, 12 L. Ed. 2d 793, 804, 84 S. Ct. 1676, 1683 (Stewart, J., concurring).) Malice has to mean more than intent to do harm by a wrongful act, or in the words of Beltmann, it has to mean more than “an affirmative conscious and intentional disregard of the specific consequences which are certain to injure the plaintiff as a result of the wrongful act.” (Beltmann, 883 F.2d at 568.) An act must have some degree of evil intent, ill -will, or spite before it can be said to be a malicious act.

The Beltmann court concentrated on the word “malice,” instead of the word “actual.” “Actual” is defined by Black as “[r]eal; substantial; existing presently in act; having a valid objective existence as opposed to that which is merely theoretical or possible.” (Black’s Law Dictionary 33 (5th ed. 1979).) Thus, if there is malice or an evil intent, it must really exist in order for it to be actual malice. Malice cannot be implied or presumed and still be actual.

There may have been actual malice in the Beltmann case, as the jury found that the employer fired the employee in retaliation for the employee refusing to assist the employer in defrauding the State of Illinois. That does not mean that because the facts in Beltmann may show actual malice, actual malice exists in every retaliatory discharge case.

Beltmann used the example of a mugger in order to show actual malice. The argument is that the mugger’s primary goal may be to increase his wealth and not necessarily to harm the victim, but Beltmann still said that the mugger has malice. This certainly appears to be implied malice and not actual malice. Further, we would not necessarily find malice in every mugging, or what is known in Illinois as robbery. (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 1 (now 720 ILCS 5/18— 1 (West 1992)).) We further note that the Criminal Code of 1961 eliminated the difficulty of dealing with malice as a criminal act and mental state in criminal cases. (Ill. Rev. Stat. 1991, ch. 38, par. 4 — 3 et seq. (now 720 ILCS 5/4 — 3 et seq. (West 1992)).) Several examples immediately come to mind: Robin Hood, or a desperate parent who thinks that there is only one way to obtain money to feed his children, or a person who takes the car keys away from his drunken friend by force; these are all examples where a person may technically commit a robbery or a mugging but might not be guilty of having an evil intent.

Prior to the creation of the tort of retaliatory discharge, firing an employee for any reason was not considered evil under the law of this capitalistic society. In fact, firing an employee for the purpose of cutting costs or to become more efficient by removing a continually injured or accident-prone employee, thereby maximizing profits, was considered to be a good business practice. Beltmann now wants us to subsume, infer, imply, or presume that the employer has actual malice in performing what was and might still be considered by many (except for the penalties involved for a retaliatory discharge) a good business practice.

Our supreme court recognized in Palmateer that a proper balance must be maintained among the employer’s interest in operating a business efficiently and profitably and the employee’s interest in earning a livelihood. (Palmateer, 85 Ill. 2d at 129, 421 N.E.2d at 878.) The supreme court never indicated that firing an employee in order to cut the cost of workers’ compensation was something inherently evil on the part of the employer. Rather, the court and the legislature recognized that the employee’s and society’s interest outweighed the employer’s interest in that situation.

Beltmann does not recognize that in this day and age the employer may even sincerely wish the discharged employee good fortune. No employer wants to pay unemployment compensation, so the employer sincerely hopes that the employee will find new employment quickly. The employer also may not have any ill feeling toward the employee; the employer just wants the often-injured employee out of the way because of the problems caused by replacing the employee with an untrained part-time employee. The employer may not even be thinking about the harm to the employee, because of the availability of jobs and the many safeguards that our society has provided for the unemployed. Many persons in government and the business world feel compelled to take certain steps that may hurt employees but are done to help the government or the company. For instance, if Congress enacted a law making it illegal to fire striking workers, would we now say in hindsight that President Ronald Reagan acted in the early 1980’s with actual malice or an evil intent in firing the striking air controllers? What Beltmann did was to imply malice in situations where no malice actually exists.

Beltmann raised the fear that an “[employer] could always escape a finding of actual malice no matter what was alleged by contending that his actions were not taken to hurt the [employee], but were instead intended only to please or advance the [employer’s] own interest.” (Beltmann, 883 F.2d at 569.) There are, however, two problems with that reasoning. First, if actual malice is not an element of the tort of retaliatory discharge, then we do not have to worry about an employer escaping a finding of actual malice, because the employee would not have to prove such. Beltmann’s fear becomes self-fulfilling, because by making actual malice an element of the tort, employers’ excuses for firing the employees mitigate against the existence of malice. Most employers will have real or created reasons for firing employees, so that employees might find themselves with a tremendous burden of having to prove the nonexistence of the employers’ excuses, if the employee hopes to convince the trier of fact that the employer had actual malice toward the employee. It becomes more difficult for an employee to overcome the subjective proof by an employer that the employee was slothful, insubordinate, or had poor work attendance, if proof of malice is required. Even if the employee was fired for asserting his worker’s rights under the law, the employer will argue it was not done out of malice; rather, it was a culmination of problems caused by the employee. Secondly, there does not seem to be any problem in Illinois with employers escaping liability in retaliatory discharge cases even when the employers contend that they had other reasons to fire the employees. See Wieseman v. Kienstra, Inc. (1992), 237 111. App. 3d 721, 731-33, 604 N.E.2d 1126, 1133-35 (Chapman, J., dissenting) (includes a list of all the retaliatory discharge cases in Illinois, the vast majority of which according to Justice Chapman found in favor of the employee).

Therefore, if we apply the above analysis and the plain and ordinary dictionary meaning to the phrase “actual malice,” we do not believe that we are forced to logically infer “actual malice” from the elements of retaliatory discharge, as Beltmann and International would have us do. No authority other than Beltmann has been postulated for such a construction, and we decline to accept the reasoning of Beltmann. Of course, it is possible for employees in some retaliatory discharge cases or insurance companies with insurance policies similar to the policy in this case to prove actual malice by employers against the employees. But the simple fact that actual malice can be proven in a given factual context does not amount to a general rule that, as a matter of law, it exists in every retaliatory discharge claim or case. Because actual malice is not an element of retaliatory discharge, International cannot rely on its definition of occurrence to exclude coverage to Dixon.

Next, we cannot help but notice that the 10 intentional torts listed as being covered in the policy may all be worse than a retaliatory discharge. Beltmann held, in its narrowest definition, that the tort of retaliatory discharge implies a wrongful act with intent to do harm. Libel, slander, malicious prosecution, false arrest, false imprisonment, defamation of character, wrongful eviction, discrimination, wrongful detention, and humiliation all could imply a wrongful act with intent to do harm. Why should the actual malice exclusion not apply to these intentional torts? In fact, an element that must be proven in the tort of malicious prosecution is the presence of malice. Mack v. First Security Bank (1987), 158 Ill. App. 3d 497, 511 N.E.2d 714.

If the actual malice exclusion did apply to these 10 listed torts, then the policy would not make any sense. It would amount to giving coverage in one sentence and taking away the same coverage in a later sentence, in the same definition section of the policy. The coverage of the 10 listed torts would be superfluous.

We have already cited Wilkin for the well-known rule of law that all doubts and ambiguities in an insurance policy must be resolved in favor of the insured. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 578 N.E.2d 926.) It is also Illinois law “that if an insurance contract contains inconsistent or conflicting clauses, the clause which affords greater or more inclusive benefit for the insured will govern.” (Standard Mutual Insurance Co. v. General Casualty Cos. (1988), 171 Ill. App. 3d 758, 764, 525 N.E.2d 965, 969.) Thus, if there is any doubt about whether the tort of retaliatory discharge is covered, then it should be resolved in favor of Dixon.

We note also that construing the definition section of the insurance policy that sets out “injury, such as but not limited to [the 10 torts]” as being superfluous may cause a violation of section 143 of the Illinois Insurance Code (Ill. Rev. Stat. 1991, ch. 73, par. 755(2) (now 215 ILCS 5/143 (West 1992))). The Director of Insurance is to withhold approval of the policy if it “contains inconsistent, ambiguous or misleading clauses, or contains exceptions and conditions that will unreasonably or deceptively affect the risks that are purported to be assumed by the policy.” (Ill. Rev. Stat. 1991, ch. 73, par. 755(2) (now 215 ILCS 5/143 (West 1992)).) Dixon had the right to assume, under its umbrella policy specifically listing the 10 torts and any other similar tort, that the policy would cover the tort of retaliatory discharge.

Further, it is an improper claims practice for an insurance company to “[k]nowingly [misrepresent] to *** insureds relevant facts or policy provisions relat[ed] to coverage at issue.” (Ill. Rev. Stat. 1991, ch. 73, par. 766.6(a) (now 215 ILCS 5/154.6 (West 1992)).) If International’s insurance policy excludes coverage for any intentional tort, then the insurance contract could be considered a fraud and International could be liable under various statutes and common law theories prohibiting such fraudulent commercial activity. See Ill. Rev. Stat. 1991, ch. 121V2, par. 261 et seq. (now 815 ILCS 505/1 et seq. (West 1992)) (Consumer Fraud and Deceptive Business Practices Act).

We next consider International’s argument that public policy mandates against insurance coverage for the tort of retaliatory discharge. International bases this argument on Rubenstein Lumber Co. v. Aetna Life & Casualty Co. (1984), 122 Ill. App. 3d 717, 462 N.E.2d 660.

In Rubenstein, the fourth district considered whether an insurance policy covers a retaliatory discharge case filed against the insured. Rubenstein found that the policy in question required the insurance company to “ ‘pay promptly when due all compensation and other benefits required of the Insured by the workmen’s compensation law’ and to ‘defend any proceeding against the Insured seeking such benefits ***.’” (Rubenstein, 122 Ill. App. 3d at 718, 462 N.E.2d at 661.) Because damages assessed in a retaliatory discharge case are not benefits required by the workers’ compensation law, the court held that the policy did not require the insurance company to defend or indemnify the insured. The court went on, in pure dicta, to say: “[E]ven if the policy was written to expressly require the defendant to defend and indemnify plaintiff in the retaliatory discharge action, we believe that such a provision would be void as against public policy, for it would be an attempt to indemnify and insure the company for damages resulting from its voluntary misconduct.” (Rubenstein, 122 Ill. App. 3d at 719, 462 N.E.2d at 662.) The court further stated: “An agreement to indemnify or insure against one’s voluntary, not accidental, misconduct is against public policy and unenforceable.” Rubenstein, 122 111. App. 3d at 719, 462 N.E.2d at 662, citing Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 500-01, 336 N.E.2d 881, 885.

There are two reasons why the dicta in Rubenstein do not control or persuade in this case. First, the facts of the case are not similar to the case sub judice. There, the court construed a policy providing a defense and indemnification for workers’ compensation benefits. International’s policy does not contain language even remotely similar, and it does not purport to cover workers’ compensation claims. Therefore, the rule set forth in Rubenstein has no application to the issues we face. Second, for this court to rely on dicta which are superfluous to the rule of the case, the dicta must rest upon sound law which applies to the facts of the case this court considers today. The public policy dicta set forth in Rubenstein are not based upon sound law. In fact, the case cited for the proposition that public policy mandates against insurance for voluntary misconduct does not stand for such a proposition. Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881.

In Davis, the supreme court construed a particular section of the Structural Work Act prohibiting a “covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence” as being against public policy. (Ill. Rev. Stat. 1971, ch. 29, par. 61.) Initially, then, it is clear that Davis cannot control the outcome of this case because the facts are dissimilar. The case sub judice does not deal with the Structural Work Act or a covenant, promise, or agreement to indemnify or hold harmless an employer guilty of willful misconduct. In fact, the insurance policy issued by International specifically excludes coverage for any injury “committed with actual malice or the willful violation of a penal statute or ordinance committed with the knowledge or consent of the insured.” However, we will analyze the case since the rule it establishes and its rationale contradict International’s argument.

Davis concerned an equal protection argument against the pertinent section of the Structural Work Act. (Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881.) Although the court stated that an agreement to indemnify against willful misconduct would, as a general rule, be contrary to public policy (Davis, 61 Ill. 2d at 500-01, 336 N.E.2d at 885), the court determined that a statute allowing indemnity in the form of construction bonds or insurance contracts in structural work cases was not an arbitrary and irrational exception to the prohibition against indemnity for willful misconduct. Davis, 61 Ill. 2d at 503, 336 N.E.2d at 886.

Indeed, the courts have allowed insurance to indemnify many categories of willful misconduct. See Scott v. Instant Parking, Inc. (1969), 105 Ill. App. 2d 133, 245 N.E.2d 124 (insurance for willful misconduct of agents and servants); Warren v. Lemay (1986), 144 Ill. App. 3d 107, 494 N.E.2d 206 (insurance for vicarious liability for punitive damages); Interco Inc. v. Mission Insurance Co. (8th Cir. 1987), 808 F.2d 682 (insurance company required to defend claim of wrongful termination under Missouri law).

We probably do not even have to reach the public policy question since the insurance policy issued by International by its very terms disposes of any problem or conflict with public policy. The insurance policy itself can be construed to prohibit coverage or indemnification, if the employer acted with actual malice or with a willful violation of the law. It is an issue of fact and not a public policy issue.

International makes a broader argument, however, that public policy excludes coverage for a claim of retaliatory discharge. Public policy should not and does not exclude coverage of the cost of defending against groundless, false, or fraudulent claims against an innocent employer. International’s argument that public policy prohibits insuring against all claims for retaliatory discharge presumes that all employers are guilty. Surely the public policy of this State is not so anti-business that employers are not even allowed to protect their businesses from the high cost of litigation, merely because an employee claims that some right has been violated.

International does not and cannot cite any statute or legislative directive in Illinois that prohibits insurance indemnification for any kind of intentional tort. “The public policy of the state is to be found in its constitution and statutes, and, where these are silent, in its judicial decisions.” (Davis, 61 Ill. 2d at 497, 336 N.E.2d at 883.) The courts, however, should be very cautious in establishing public policy by court fiat. Courts are ill equipped to determine what the public policy should be. Seldom are all interested parties, all facts, and all issues present in a single case, where the court can rationally balance all the factors necessary to establish a policy good for society. Further, establishing public policy may entail the balancing of political interests. This is a function of the legislature, not the courts.

If we were to broadly decide that public policy prohibits employers from obtaining insurance coverage for willful violations of statutes, this reasoning and ruling could be applied to other suits in which plaintiffs assert willful violations of laws by businesses. It may be more in the public’s interest to allow businesses to protect themselves by insurance coverage against all the various forms of claims for discrimination, sexual harassment, and retaliatory discharge than to allow businesses to become bankrupt in defending against several catastrophic suits. After all, the wronged plaintiff, the community, and society in general are not helped if the plaintiff cannot recover his damages or job, and if numerous employees are thrown out of work.

The public policy behind retaliatory discharge law is to protect employees from losing their jobs when they assert their rights. If insurance coverage somehow insulated employers from liability and thereby made them more likely to fire employees in retaliation for asserting protected rights, then the public policy may favor a restriction of insurance on that basis. However, International has not shown how insurance would so insulate employers. On the contrary, the free market may work against insulating employers from liability. Insurance companies have the right to refuse to insure or to increase their premiums, both of which may act as deterrents against retaliatory discharges by impetuous employers. We decline to assume that insured employers would be more inclined to fire employees for asserting protected rights without facts to support it.

The tort of retaliatory discharge is designed to achieve a balance between the needs of the employer, the needs of the employee, and the needs of society. The employer must be allowed to conduct his business in a profitable and efficient manner. The employee needs to make a suitable living. Society needs to protect workers from undue abuse. (See Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 568 N.E.2d 870.) Broadly prohibiting insurance for retaliatory discharge will not serve the needs of the employer, the employee, or society. Insurance coverage may actually help to achieve the delicate balance between the three interests if it compensates the employee for a retaliatory discharge judgment without bankrupting the company. Having a third party, with an economic interest to protect, oversee the actions of the employer could be very beneficial to the employee and society. We, therefore, hold that the public policy of the State of Illinois does not prohibit insurance coverage against claims of retaliatory discharge.

Based upon the reasons stated herein, we hold that the insurance policy issued by International to Dixon at least potentially covers the tort of retaliatory discharge and that this potential coverage does not violate the public policy of this State. As a result, when International refused to defend Dixon against the underlying retaliatory discharge case, it breached its duty to defend as stated in the policy. Therefore, the case is reversed as to International and remanded to the circuit court. We make no comment as to whether the underlying retaliatory discharge case included any showing of actual malice, since that record is not before us. Any question of Dixon’s intent in firing the employee was a question of fact that should have been ascertained by the trier of fact. For the reasons previously stated, we affirm the trial court’s grant of summary judgment to Hanover and Massachusetts but reverse the court’s grant of summary judgment to International. We remand this cause to the trial court for further proceedings in accordance with this opinion.

Affirmed in part; reversed in part and remanded.

WELCH and GOLDENHERSH, JJ., concur.

      Francis Bacon, “Of Judicature.”