author: JUSTICE DUNN

text:
      In re MARRIAGE OF RICHARD YNDESTAD, Petitioner-Appellee, and ANITA YNDESTAD, n/k/a Anita Packard, Respondent-Appellant.
    Second District
    No. 2—91—0856
    Opinion filed July 10, 1992.
    Rehearing denied August 28, 1992.

      Kimberly Backman, of Bedrava, Lyman & Van Epps, of Oak Brook (E. William Bedrava, of counsel), for appellant.
    Paul A. McLennon, of McLennon Law Offices, and Sheridan & Associates, both of Wheaton (Gerald M. Sheridan, Jr., of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Anita Packard (Anita), appeals from an order of the circuit court of Du Page County dismissing her petition to remove her daughter, Kerry, from the State of Illinois. The trial court construed the petition as a motion to modify a custody judgment and dismissed it because there was no accompanying affidavit showing that Kerry’s health could be seriously endangered by her present environment. Such an affidavit is required if a motion to modify a custody judgment is filed within two years of judgment. (Ill. Rev. Stat. 1989, ch. 40, par. 610(a).) Anita argues on appeal that the trial court’s dismissal order was improper because the above provision does not apply to petitions for removal, which are governed by section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 609). Petitioner, Richard Yndestad (Richard), contends that the trial court acted properly in construing the petition as a motion to modify a custody judgment because the judgment of dissolution specifically required Anita and Kerry to reside within 50 miles of Naper-ville. We reverse and remand.

On February 20, 1990, Richard filed a petition for dissolution of the parties’ marriage. Richard and Anita subsequently executed a joint parenting agreement which was incorporated into the judgment of dissolution of marriage entered by the circuit court on June 22, 1990.

The joint parenting agreement provides, in part, as follows. The parties have joint custody of Kerry with Anita as the primary physical custodian. Richard has physical custody of Kerry on alternate weekends, for a 21/2-hour period on Tuesday and Thursday nights, and during certain holidays. He is also permitted up to six weeks of visitation per year.

The agreement further provides that Anita will continue to reside within a 50-mile radius of her residence in Naperville, and she acknowledges that the custodial arrangements provided for in the agreement were based to a substantial extent upon the close proximity of the parties’ residences. If Richard moved outside the aforementioned 50-mile radius, Anita would no longer be bound by this provision.

Anita filed her petition to remove Kerry from Illinois on December 17, 1990. In the petition, Anita stated that she had recently married a man who resided in Argonne, Wisconsin. Anita wished to move to her new husband’s residence along with Kerry. The petition alleged that the move would be in Kerry’s best interests. The parties agree that Argonne is outside the 50-mile radius mentioned in the joint parenting agreement.

Richard filed a motion to strike the petition to remove on the basis that it was actually a motion to modify a custody judgment, and there were no attached affidavits showing possible serious endangerment as required by section 610(a) of the Act. The trial court agreed and entered an order dismissing the petition. Anita now appeals.

Richard initially contends that this court lacks jurisdiction to consider this appeal because the trial court’s order did not preclude amendment of the petition and was, therefore, not final. We disagree. With certain exceptions that do not apply here, a reviewing court’s jurisdiction is limited to appeals from final orders. (Schuster Equipment Co. v. Design Electronic Services, Inc. (1990), 197 Ill. App. 3d 566, 568.) An order is final and appealable if it terminates the litigation between the parties on the merits so that the trial court need only execute on the judgment if it is affirmed. Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115.

A reviewing court will look to the substance of an order rather than the form to determine whether it is final and appealable. (Schus-ter Equipment Co., 197 Ill. App. 3d at 568.) If a complaint is dismissed because it is legally insufficient to state a cause of action, as opposed to being technically deficient, the dismissal order is final and appealable if leave to amend is not granted. (Schuster Equipment Co., 197 Ill. App. 3d at 568.) This is true even if the order does not state that the complaint is dismissed “with prejudice.” 197 Ill. App. 3d at 568.

Here, Anita’s petition to remove Kerry to Wisconsin was not dismissed because of a technical deficiency. The trial judge determined as a matter of law that, under the circumstances of this case, the petition for removal amounted to a petition to modify a custody judgment. The judge dismissed the petition because Anita presented no affidavits showing potential serious endangerment to Kerry’s health if the petition was not granted as required by section 610(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610(a)) for motions to modify a custody judgment which are made within two years of the judgment.

The trial judge’s ruling amounts to a determination that, under the circumstances of this case, no petition for removal pursuant to section 609 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 609), standing alone, could be granted. Instead, Anita would have to present a motion to modify the judgment and meet the far more stringent standard of section 610(a), showing serious endangerment to the child as opposed to showing that removal would be in the child’s best interest. Applying the Schuster Equipment Co. holding, Anita’s “cause of action” in this case was for leave pursuant to section 609 of the Act to remove her child to Wisconsin. The trial judge’s dismissal order prevented her from further prosecuting this cause of action and did not grant her leave to amend. We therefore conclude that, in substance, the dismissal order is final and appealable.

We now ton to the merits. Section 609(a) of the Act states, in part, as follows:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children.” (Ill. Rev. Stat. 1989, ch. 40, par. 609(a).)

Section 610(a) of the Act, which the trial court relied upon in dismissing Anita’s petition, states as follows:

“Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may seriously endanger his physical, mental, moral, or emotional health.” Ill. Rev. Stat. 1989, ch. 40, par. 610(a).

Anita contends that the trial court erred in applying section 610(a) because that provision does not apply to petitions to remove, which are governed by section 609. As Anita points out, it has been held that a petition to remove a child to another State is not a motion for modification of a custody judgment even if granting the petition would have an impact upon the nonmovant’s joint custody rights. (Winebright v. Winebright (1987), 155 Ill. App. 3d 722, 724; In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 710-11.) In both of these cases, the courts held that section 609 applied rather than section 610(a) of the Act, even though the removal petitions were filed within two years of the dissolution judgments. Winebright, 155 Ill. App. 3d at 724; Bednar, 146 Ill. App. 3d at 710-11.

Neither Winebright nor Bednar involved dissolution judgments containing provisions restricting the area in which the primary custodial parent may live. Therefore, in those cases, unlike the case at bar, allowing removal would not have directly contravened any provision in the judgment for dissolution. In Falk v. Falk (1979), 77 Ill. App. 3d 13, also cited by Anita, the judgment of dissolution incorporated a stipulated agreement between the parties which provided that the petitioner would not remove the parties’ child from the Quad Cities area without the respondent’s permission. About four years after the judgment was entered, the petitioner filed a petition to modify the dissolution decree to allow her to remove the child to Peoria. The trial court denied the petition solely on the basis that the agreement barred the petitioner from moving the child out of the Quad Cities area. Falk, 77 Ill. App. 3d at 13-15.

The appellate court reversed in Falk, stating that, while agreements between the parties which are incorporated into dissolution decrees are given considerable weight, the trial court is not bound by such an agreement if, by reason of a change in circumstances, it is no longer in the child’s best interests. (77 Ill. App. 3d at 15.) The appellate court stated that, if such an agreement limits the area to which a child may be removed, the best interests standard is applicable if the primary custodian petitions to remove the child from that area. 77 Ill. App. 3d at 15-16.

Falk is not dispositive of the issue presented here because the petitioner in that case did not seek to remove her child within two years of the entry of the dissolution judgment as in the case at bar. The court’s decision in Falk was, in fact, consistent with the applicable standard for modifying custody judgments more than two years after their entry (see Ill. Rev. Stat. 1977, ch. 40, par. 610(b)). Therefore, while certain language from Falk provides support for Anita’s position, the case is distinguishable.

Although the authorities cited by Anita indicate that the best interests standard is ordinarily applied in determining whether the primary custodian should be allowed to remove a child from the State, there is no Illinois case involving a situation in which removal is sought within two years of judgment and would be contrary to the terms of that judgment. Section 609 of the Act states that leave to remove a child from Illinois may be granted, before or after judgment, “whenever such approval is in the best interests of such child or children.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 609.) The language of section 609 provides no exceptions to this rule. The language of section 610(a) is equally clear; motions to modify custody judgments may not be presented within two years of judgment without affidavits indicating potential serious endangerment to the child’s health from her present environment. (Ill. Rev. Stat. 1989, ch. 40, par. 610(a).) Under the circumstances of this case, an apparent conflict exists between these two provisions of the Act.

The primary rule of statutory construction is to determine and give effect to the legislature’s intent. (In re Marriage of Grabarek (1988), 175 Ill. App. 3d 1045, 1047.) In Grabarek, as in the present case, the parties executed a joint parenting agreement which was incorporated into the judgment of dissolution. The agreement provided that there would be binding mediation if the parties had a disagreement concerning any terms of the agreement or about any matter concerning the children. Within two years of the entry of the dissolution judgment, the petitioner filed a petition to modify the judgment by increasing the respondent’s child support obligation. The trial court dismissed the petition on the basis that the petitioner had not first sought mediation as required by the joint parenting agreement. Grabarek, 175 Ill. App. 3d at 1046-47.

On appeal, this court examined the language of section 602.1(b) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 602.1(b)), which concerns joint custody and joint parenting agreements. Section 602.1(b) states, in part, that a joint parenting agreement “shall specify each parent’s powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training.” (Ill. Rev. Stat. 1989, ch. 40, par. 602.1(b).) This court stated as follows in Grabarek with regard to section 602.1:

“This section does not specifically refer to child support, nor do we construe any of its language as including child support as part of any joint custody agreement or order. Nor does section 602.1 suggest that a joint custody agreement or order will supersede or modify any of the child support sections of the Act. Thus, in reading the plain language of section 602.1, we find no provision allowing the parents or the court to include as part of a joint custody agreement or order any provision regarding child support or any modification of any child support award.” (Grabarek, 175 Ill. App. 3d at 1048.)

This court went on to determine that, because the petitioner sought modification of the respondent’s child support obligation by means of a petition consistent with the procedures set forth in section 511 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 511), the petition should not have been dismissed notwithstanding the joint parenting agreement. Grabarek, 175 Ill. App. 3d at 1049.

There is no language in section 602.1 concerning the removal of children from Illinois. Nor is there any language suggesting that a joint parenting agreement or order may supersede or modify the provision of the Act concerning removal. We therefore conclude that petitions to remove a child from Illinois are governed by section 609 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 609), despite any provisions in a joint parenting agreement purporting to limit the right of removal. The impact of the proposed removal upon the joint custody rights of the nonresidential custodial parent is, however, an important factor in determining whether removal is in the child’s best interests. (In re Marriage of Bednar (1986), 146 Ill. App. 3d 708, 711.) This factor may be considered upon remand, along with the factors discussed by our supreme court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326-28, in determining whether the proposed move is in Kerry’s best interest.

For the above reasons, the order of the circuit court of Du Page County dismissing Anita’s petition to remove is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and WOODWARD, J., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    LORI KUWIK, Plaintiff-Appellant, v. STARMARK STAR MARKETING AND ADMINISTRATION, INC., et al., Defendants-Appellees.
    Second District
    No. 2—91—1251
    Opinion filed July 27, 1992.
    Maureen Flaherty, of Lehrer, Flaherty & Cana van, P.C., of Wheaton (R. Lawrence Canavan, of counsel), for appellant.

      Joseph J. Hasman and Daniel A. Engel, both of Peterson, Ross, Schloerb & Seidel, of Chicago (Sherri L. Giffin, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Lori Kuwik, appeals from an order of the Du Page County circuit court granting summary judgment to defendants on a claim asserted against them which alleged the occurrence of libelous per se statements. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005.) Plaintiff claims that the trial court erred when it found that the libelous statements were protected by a qualified privilege and that no actual malice could be found as a matter of law. We reverse and remand.

Plaintiff is a doctor of chiropractic medicine. Defendants Star-mark Star Marketing and Administration, Inc., Benefit Trust Life Insurance Company, E. Mitsis, individually, and Arthur J. Fischer, individually, are involved in the insurance industry.

On February 22, 1989, plaintiff examined a patient, Kathy Hammond. Hammond came to plaintiff complaining of a long history involving extreme fatigue, recurrent bronchitis, tonsilitis, lympha-denopathy, chronic sore throat, and premenstrual syndrome. Plaintiff performed a physical examination and evaluation of Hammond which led her to believe that Hammond suffered from Candida syndrome and chronic Epstein-Barr virus. To confirm her suspicions, plaintiff recommended a series of laboratory tests. These tests revealed the presence of Candida antibodies and Epstein-Barr antibodies.

Hammond forwarded her medical bills for the tests to Starmark, her medical insurance company. E. Mitsis, an employee and agent of Starmark, sent a letter to Hammond dated August 15, 1989, denying Hammond’s claim for payment. In explanation of the claim denial, the letter stated that the services rendered by Dr. Kuwik were outside the scope of her license. In full, the letter stated the following:

“This letter is in response to a review on claims submitted from Fox Valley Health Services.
Our Medical Department has reviewed medical records and information relating to services rendered on March 6, 1989. It has been determined that based on the information on file, services rendered are ‘outside the scope of the practicing physician’s license’, as stated under the definition of a physician in your policy. Therefore no benefits are payable for these services.
We wish our reply could have been more favorable. However, we must adhere to policy provisions.
Rule 9.19 of the Rules and Regulations of the Illinois Department of Insurance requires that our company advise you that is [sic] you wish to take this matter up with the Illinois Department of Insurance, it maintains a Consumer Division in Chicago at 160 North La Salle Street, Chicago, IL 60606 and in Springfield at 320 West Washington Street, Springfield, IL 62767.”

Hammond brought this letter to plaintiff. This letter prompted plaintiff to file a formal complaint with the Department of Insurance on September 23, 1989. Plaintiff’s complaint alleges that the statements in the letter addressed to Hammond regarding the scope of plaintiff’s practice are erroneous.

On October 23, 1989, Arthur Fischer, the vice-president, associate general counsel, and assistant secretary of Benefit Trust Life Insurance Company, responded to plaintiff’s complaint in a letter addressed to Larry Barregarye at the Department of Insurance. This letter states in pertinent part:

“In order to respond to the comments of Dr. Lori Kuwik, I had this file reviewed by our medical director, Dr. Marvin Zo-lot. Dr. Zolot’s position is that in order for a provider to order lab tests for a patient, the provider must first determine which test might be appropriate by doing a medical history in performing a physical examination.
In addition the provider must be trained in disciplines which teach the evaluation and treatment of the diseases which the tests may reveal. As our medical director has pointed out, an optometrist would not treat heart disease nor would a physical therapist do any evaluation or investigation into infectious diseases.
Tests for Epstein-Barr virus or Systemic Candidiasis testing is outside the scope and knowledge as well as the license of the provider in this case. However, our medical director has indicated that the company can provide $35 towards the Epstein-Barr Titer and $25 towards the Candida Titer tests for a total of $60 in benefits.”

In connection with the denial of benefits to Hammond, Fischer received a document in 1989 from Starmark’s medical director, Marvin Zolot, which stated:

“Our position is that in order for a provider to order laboratory tests, they must first determine which laboratory tests might be appropriate by doing a history and performing a physical. In addition, the provider must be trained in disciplines which teach the evaluation and treatment of the disease which the tests may reveal. Optometrists do not treat heart disease; physical therapists do not dabble in infectious disease, et cetera. Epstein-Barr virus or systemic Candidiasis is outside the scope of the knowledge and indeed the scope of the license. (Toby is checking the wording of the Chiro license).”

Fischer explained that Toby was a paralegal for the company. Fischer understood that Dr. Zolot was saying that the tests ordered by plaintiff were outside the scope of practice of her license. Fischer testified that he did not remember receiving a report from Toby on the chiropractic license nor was there anything in the file in writing concerning the license of a chiropractor. Fischer did not recall whether he made reference to legal materials with respect to the licensing requirements of a physician after receiving the October 3, 1989, communication from Dr. Zolot.

Fischer testified that the representations made to the Department of Insurance were based upon the opinion of Dr. Zolot. Fischer did not, at that time, determine whether the laws of the State of Illinois conformed with Dr. Zolot’s medical opinion. In connection with the present litigation, Fischer took the opportunity to review the statutes relative to the license of chiropractors in Illinois as they existed in August 1989 and determined that the statements made about plaintiff were, indeed, not correct. When Fischer was asked why he did not refer to the statutes in the State of Illinois prior to writing the letter of October 23,1989, he stated that he did not know why.

Plaintiff identified the August 15, 1989, letter to Hammond from E. Mitsis and the October 23, 1989, letter to Barregarye from Fischer as the letters upon which the instant complaint is based.

Starmark’s motion for summary judgment was based on its answer and affirmative defense that any communications to Hammond and to the Department of Insurance were qualifiedly privileged. The trial court granted summary judgment on the basis that there was no question of fact that the two letters were qualifiedly privileged and further held, as a matter of law, there was no issue as to any material fact which would allow plaintiff to prove actual or express malice to overcome the qualified privilege.

A summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit. However, it is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is proper only when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) The evidence in the record must be construed strongly against the movant and liberally in favor of the opponent. (Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81.) To prevent the entry of summary judgment, an opponent need not prove his case at this preliminary stage, but must present facts sufficient to support the elements of his claim. (Kempes v. Dunlop Tire & Rubber Corp. (1989), 192 Ill. App. 3d 209, 214.) “Here, then, our function is to determine whether the trial court correctly found that no genuine issue of material fact existed and also to determine whether judgment was correctly entered for the moving party as a matter of law.” (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241.) In our view, the trial court committed error in determining that there was no question of fact with respect to defendants’ asserted privilege.

According to Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, a defendant may escape liability in a libel claim by affirmatively setting forth the elements necessary to establish that its communication was privileged. The essential elements are: (1) good faith on the defendant’s behalf; (2) an interest or duty to be upheld; (3) a statement limited in its scope to that purpose; (4) a proper occasion; and (5) publication in a proper manner and to proper parties. (Zeinfeld, 41 Ill. 2d at 349.) Under the facts of this case, we determine that there is a question of fact whether defendants made their statements regarding plaintiff in good faith.

Ordinarily, the existence of a qualified privilege is a question of law for the court to decide. (Skopp v. First Federal Savings (1989), 189 Ill. App. 3d 440, 446.) Here, however, there is a factual question whether the statements about plaintiff were made in good faith. In our view, such a factual dispute is not a proper setting in which to grant summary judgment.

For example, in Zeinfeld, the trial court granted defendant’s motion for summary judgment on the pleadings with regard to a count in libel. The complaint charged that information released by a former employer to a prospective employer was false and defamatory. Our supreme court reversed the judgment and remanded the case because triable issues of fact existed whether a conditional privilege was abused by an absence of good faith. (Zeinfeld, 41 Ill. 2d at 350.) Thus, we conclude that, where matters of privilege are under consideration and where such matters involve factual disputes as to the existence of good faith, the existence of a qualified privilege is no longer a question of law but, instead, one of fact that lies within the province of the fact finder.

Defendants here were under a statutory obligation to provide a “reasonable and accurate explanation of the basis in the insurance policy or applicable law for [a claim] denial.” (Ill. Rev. Stat. 1981, ch. 73, par. 766.6(n).) In our view, a failure to meet this duty would be indicative of a lack of good faith. Here, Fischer made representations about the scope of plaintiff’s medical license and the breadth of plaintiff’s knowledge without consulting the appropriate statutes or interviewing plaintiff herself. At the time the representations were made about plaintiff’s scope of practice, the licensing statutes for physicians only limited chiropractors in their ability to write prescriptions or to perform surgery. (See Ill. Rev. Stat. 1987, ch. Ill, par. 4400 — 1 et seq.) However, these statutes were not reviewed when the statements about plaintiff’s scope of practice were made. In sum, there is significant evidence to support plaintiff’s claim that defendants’ sole basis for the disputed representations rested upon Dr. Zolot’s personal opinions on the matter. We determine that it is a question of fact whether such reliance has a basis in good faith when statements are being made to the public and State agencies regarding an individual’s professional and ethical character — particularly when it is suggested that the alleged professional incompetence may serve as a basis for a complaint with the consumer division of the Department of Insurance. Furthermore, the representations made about plaintiff assert that she acted outside of her scope of knowledge as well as her license. In our view, this statement may lack a good-faith basis if it was made with no information regarding plaintiff’s individual training or the training of chiropractors in general.

Good faith, as a matter of law, does not exist if the basis of the good faith lacks a proper foundation in fact. The defendant need not necessarily make accurate statements, but should, at least, make an attempt at accuracy. If there is a sufficient dispute over whether a proper foundation did, indeed, exist, then the good-faith prong of the qualified privileged test cannot be resolved as a question of law by the trial court, but should, instead, be presented to the trier of fact. Since we cannot say that the good faith asserted by the defendants is clear and free from doubt, summary judgment for defendants is not proper.

Our holding in this regard necessarily moots the trial court’s granting of summary judgment on the question of actual malice because actual malice is not a relevant concern until the qualified privilege has been found to apply. (Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 491.) However, we note that our reasoning with respect to the previous issue applies with equal force here on the question whether actual malice existed as a matter of law. We observe that, taking the facts set forth by plaintiff as true, the question of actual malice cannot be resolved on summary judgment.

In order to withstand a motion to dismiss, plaintiff’s pleadings must raise an inference that defendant acted with actual malice. (Edwards, 137 Ill. App. 3d at 490.) Actual malice means that defendant had knowledge of the falsity of his statement, lacked reasonable grounds for believing the truth of the statement, or acted with wanton disregard for the rights of others. (Edwards, 137 Ill. App. 3d at 490.) In our view, the alleged absence of a reasonable investigation on defendants’ behalf gives rise to a question of fact regarding whether the statements were made with actual malice. In Dark v. United States Fidelity & Guaranty Co. (1988), 175 Ill. App. 3d 26, the finding of an absence of malice with respect to representations made by defendant was supported by substantial evidence provided by disinterested experts which defendants actively sought out and relied upon. No such evidence is presented here to indicate that a good-faith investigation was made prior to the release of the potentially harmful statements. In fact, as noted above, plaintiff’s allegations that Fischer’s damaging representations were made from a completely uninformed state of mind could be found by a jury to have been made with knowledge of their falsity, without reasonable grounds for believing their truth and with wanton disregard for plaintiff’s rights.

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

Reversed and remanded.

UNVERZAGT and DOYLE, JJ., concur.


author: JUSTICE WELCH

text:
    MALISIE TUCKER, Plaintiff-Appellant and Cross-Appellee, v. ILLINOIS POWER COMPANY, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5—90—0214
    Opinion filed July 17, 1992.
    Rehearing denied August 25, 1992.

      Marc P. Weinberg, of Goldenhersh Law Offices, of East St. Louis, for appellant.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Carl H. Lee and Gregory M. Skinner, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Malisie Tucker’s suit against Illinois Power Company (Illinois Power) alleged ordinary negligence, willful and wanton misconduct and a violation of the Public Utilities Act (III. Rev. Stat. 1983, ch. lll2ls, par. 1 et seq.), because of an interruption of natural gas service to Tucker’s residence on or about January 29, 1985. The jury returned a verdict of $5,000 compensatory damages for Tucker. The trial court directed a verdict for defendant on the punitive damages count. Tucker filed a post-trial motion and a motion to tax attorney fees and costs against the defendant. The trial court denied Tucker’s post-trial motion but allowed Tucker’s motion to tax attorney fees and costs in the amount of $1,666.67.

Tucker appealed and raised as her first issue the question of whether the trial court erred in denying her motion for a mistrial at the close of jury selection. Tucker’s motion was based on the contention that the principles of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, apply to civil cases and Illinois Power used its peremptory challenges to discriminate against blacks. The trial court denied Tucker’s motion for mistrial, but it made no express finding as to whether Tucker had presented a prima facie case of purposeful discrimination in the selection of the jury. This court, following the lead of Edmonson v. Leesville Concrete Co. (1991), 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct. 2077, which applied Batson to civil proceedings, remanded the cause to allow the trial court to conduct a hearing to determine whether there was a violation of the Bat-son principles. (Tucker v. Illinois Power Co. (1991), 217 Ill. App. 3d 748, 577 N.E.2d 919 (hereinafter referred to as Tucker I).) The trial court conducted a hearing and certified that no violation of Batson occurred in the jury selection of this case. Assuming a prima facie case was established, the record reveals that the trial court did not require Illinois Power to provide race-neutral reasons behind each of its peremptory challenges, and the trial court made no finding as to whether the explanations given by Illinois Power were sufficient to overcome a prima facie case of discrimination.

The first issue for our review concerns the trial court’s finding that there were no violations of the principles of Batson. Once again, the record contains no explicit finding that Tucker established a prima facie case of discrimination. To determine whether purposeful jury discrimination has occurred, the trial court should first determine whether a prima facie case has been established before requesting the opposing party to articulate race-neutral reasons for its peremptory challenges. (Batson, 476 U.S. at 93-96, 90 L. Ed. 2d at 85-88, 106 S. Ct. at 1721-23; see also People v. Andrews (1992), 146 Ill. 2d 413, 588 N.E.2d 1126.) Although the trial judge should have followed the analytical guidelines of Batson, we will not disturb the court’s implicit finding of a prima facie case and assume instead the presumption that a prima facie case was made. See People v. Baisten (1990), 203 Ill. App. 3d 64, 76, 560 N.E.2d 1060, 1067.

Our conclusion is not based solely on the court’s invitation to Illinois Power to give its race-neutral reasons, although the invitation implied that the court found that a prima facie case had been established. A conclusion based on that ground alone has been criticized by the supreme court. (People v. MaHaffey (1989), 128 Ill. 2d 388, 414, 539 N.E.2d 1172, 1184.) In this case we choose not to disturb the trial court’s implicit finding of a prima facie case where a prima facie case has been demonstrated.

A prima facie case may be established by showing that:

(1) the plaintiff belongs to “a racial group capable of being singled out for differential treatment,” i.e., “a cognizable racial group”; (2) the State removed members of the plaintiff’s race from the venire by using peremptory challenges; and (3) these facts “and any other relevant circumstances raise an inference” of purposeful discrimination because of race. (Batson, 476 U.S. at 93-96, 90 L. Ed. 2d at 85-88, 106 S. Ct. at 1721-23.)

In this case the plaintiff is a member of a cognizable racial group, and members of that racial group were peremptorily excluded from the jury by the defendant. As for other relevant circumstances which tend to raise an inference of jury discrimination, a markedly disproportionate use of strikes against black venire members was established.

Of the 27 members of the venire remaining after five members were excluded for cause, five were black. Each party was given five peremptory challenges. Illinois Power used four of its five challenges to remove blacks.

Another circumstance relevant to the query of jury discrimination involves the questions posed to one of the black venire members and his response. The only information relative to venire member Darius Howlett elicited during voir dire was that he is a single, 19-year-old male who lives in East St. Louis, Illinois, and works as a cashier and stockman at a grocery store. In light of the cursory information provided by this prospective juror, it is not clear that a nondiscriminatory purpose was the reason for excluding him.

Based on the record, we will not disturb the trial court’s implicit finding that a prima facie case of racial discrimination in selection of the jury was established. Once a complainant makes a prima facie showing of jury discrimination, the burden shifts to the opposing party to come forward with race-neutral explanations for challenging members of the venire who belong to the racial group in question, (Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; Edmonson, 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct. 2077; see also Puiszis, Edmonson v. Leesville Concrete Co.: Will the Peremptory Challenge Survive Its Battle With the Equal Protection Clause, 25 J. Marshall L. Rev. 37 (1991).) Illinois Power has the burden to articulate clear and reasonably specific explanations for its use of peremptory challenges of black venirepersons. See People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.

At the hearing on remand, the trial court permitted both parties to argue, present testimony and cross-examine witnesses. The attorney for Illinois Power, Carl Lee, testified concerning the racial composition of the parties and the witnesses to this case. Lee testified that the plaintiff is a black woman. Glenn Tamens, a black man who is a representative of Illinois Power, sat with attorney Lee at the counsel table throughout the trial. Attorney Lee pointed out that of the principal witnesses called by Illinois Power, four were black. Attorney Lee testified that he wanted the trial court to be reminded and the appellate court to be made aware that this case is not one where there are black persons on one side and white persons on the other. The plaintiff’s attorney objected to Lee’s testifying as to the racial make-up of the parties and witnesses. The trial court overruled his objection.

A trial court is entitled to consider counsel’s statements concerning the race of excluded venirepersons at a Batson prima facie hearing. (People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.) In deciding whether the complaining party has made the requisite showing of purposeful discrimination in jury selection, the trial court should consider all relevant circumstances. (Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; Edmonson v. Leesville Concrete Co. (1991), 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct. 2077.) We cannot conclude that the testimony regarding the racial composition of the parties and witnesses was irrelevant, nor can we find that the trial court erred in overruling plaintiffs objection to the admission of such testimony.

We now turn to the question of whether the trial court erred in finding that Illinois Power’s race-neutral explanations were sufficient to overcome Tucker’s prima facie case of purposeful discrimination. The black venire members peremptorily challenged by Illinois Power are L.V. Watson, Irene White, Havie Eades and Darius Howlett. Counsel for Illinois Power testified that he challenged juror Watson because Watson was a patient of Tucker’s treating physician, Dr. Frazer, and counsel was concerned that Watson would give greater credence to Dr. Frazer than to defendant’s expert witness. It was revealed that Watson had not seen Dr. Frazer for nearly 20 years.

Attorney Lee testified that Irene White was employed by the Lovejoy Community Action Program and was at one time a Brooklyn Senior Citizens executive director. Lee believed that, because of her background, White would sympathize with the plaintiff, a senior citizen. Lee also had information that Illinois Power had once disconnected White’s gas service, and Lee believed that this would prejudice White against Illinois Power.

Juror Eades, a 41-year-old man with a fifth-grade education, was challenged because he was the least educated of the jury panel. Illinois Power’s attorney testified that he wanted a more highly educated group on the jury than someone of Mr. Eades’ educational experience. Attorney Lee pointed out that the jurors challenged by the plaintiff’s attorney were the most educated of the lot. Lee testified that another reason he challenged Eades was because, after reviewing Illinois Power’s customer list, he had no record of Eades even though Eades was married and lived in East St. Lords. Lee’s concern with what he did not know about Eades gave him discomfort.

Attorney Lee challenged 19-year-old juror Howlett because he was a young male. Lee testified that he also challenged juror Buhr, a 22-year-old white male, for the same reason. Lee testified that it is his opinion that young males are more apt to render higher verdicts than young females or older persons.

Defense counsel’s explanations for challenging the jurors need not rise to the level necessary to justify a challenge for cause; however, they must be more than mere assertions of good faith or lack of discriminatory motive. (People v. Baisten (1990), 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060, 1068.) The trial judge is in the best position not only to observe the behavior of the prospective jurors but also to evaluate counsel’s sincerity; therefore, the trial judge’s determination is entitled to great deference and will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360; People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060; People v. Dukes (1992), 227 Ill. App. 3d 988.) In the instant case the trial court offered no commentary as to the reasons for its decision; it merely concluded that there was no violation of Batson. We conclude that the evidence supports the trial court’s decision that there was no systematic exclusion of venire members based on race.

Tucker next argues that the trial court erred in not finding that Illinois Power violated the Batson principles because Illinois Power admits that it struck venireperson Howlett because he is a young male. The attorney for Illinois Power testified that he challenged venireman Howlett and venireman Buhr because they are aged 19 and 22, respectively, and it is his opinion that young males are more apt to render higher verdicts than young females or older persons. Tucker argues that Batson’s prohibition against racial discrimination extends to gender and age discrimination; therefore, pursuant to Illinois Power’s admission, a Batson violation occurred.

Tucker cites no authority applying Batson to age discrimination. Even if we assume that Batson is applicable to gender and age discrimination, we need not decide whether purposeful age discrimination occurred here because Tucker waived this argument.

During voir dire and in her post-trial motion, Tucker vehemently asserted that Illinois Power committed purposeful racial discrimination. Not until after the Batson hearing was conducted in this case did Tucker raise the issue of age discrimination. The theory upon which a case is tried in the lower court cannot be changed on review, and the issue not presented to or considered by the trial court cannot be raised for the first time on review. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 230, 552 N.E.2d 973, 978; Ayers v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 36, 424 N.E.2d 1316, 1318.) An appellate court should not consider a theory not pursued below if proof might have been offered to refute or overcome such theory had it been presented. (Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 424 N.E.2d 1302.) Had Illinois Power been aware of the allegation of age discrimination during the proceedings below, it might have been able to prove that its challenges of Howlett and Buhr were not age-discriminatory.

The final issue regarding voir dire is whether the trial court erred in not granting Tucker a new trial because Illinois Power utilized its customer service list during the juror selection process. Specifically, the attorney for Illinois Power testified at the Batson hearing that he used the list in order to determine which jurors were customers of Illinois Power and which ones were customers prior to being disconnected for some reason. Tucker argues that this information was never made available to the court or to the plaintiff and directly bore on the integrity and veracity of the venirepersons. Tucker contends that, as a result of the failure to disclose this information, some of the jurors who should have been stricken for cause may not have been. Illinois Power argues that the information at issue is attorney work product and is not subject to disclosure.

Without delving into the issue of whether or not the information requested is work product and is otherwise privileged from discovery, the record demonstrates that Tucker at no time requested the customer service list or any related information from Illinois Power. It is within the trial court’s discretion to make the final determination with respect to discovery orders. (Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 502 N.E.2d 315.) It is curious that Tucker made no attempt to acquire the customer service list or any information which Illinois Power intended to use during voir dire, even though Tucker argues that she is entitled to such information. Based on the record we cannot find that the trial court abused its discretion.

Before turning to the remaining issues, it is necessary to relate the facts of this case in more detail. Bennie Hamilton, the plaintiff’s daughter, testified that she has a close relationship with her mother and that prior to January 29, 1985, she visited her mother three or four times a week. Hamilton testified that at the time of the incident in question, Hamilton’s sister, Tanner Conley, and James Lee, a companion of Malisie Tucker, lived with her mother. On January 29, Tucker and Conley had spent the day at Hamilton’s house tending to Hamilton’s children while she was at the hospital with an older sister whose husband was having surgery. Tucker and Conley left Hamilton’s house soon after she returned from the hospital at 6:30 p.m. James Lee drove the two women to Tucker’s home as neither Tucker nor Conley know how to drive. At approximately 10:30 or 11 that same evening, the three returned to Hamilton’s home because the natural gas service to Tucker’s home was not working. The temperature that evening was below freezing, and it was sleeting and snowing.

Hamilton testified that when Tucker, Conley and Lee returned to her home that evening her mother complained that she was “half froze, and I never [sic] had such pain in my hands and arms before and my feet. Feel [sic] just like I don’t have no feet.” Hamilton telephoned Illinois Power and advised them that the gas service at her mother’s home “had been turned off or was froze up.” Hamilton observed that her mother’s hands were pale and blue in color.

Malisie Tucker testified that she was born in 1910. On the night of the incident, she left Hamilton’s house with Conley and Lee and returned to her own home to find that the heat was not working. Tucker testified that she called her landlord, Wardell Patterson, who lived next door, in an attempt to remedy the situation. Although Patterson tried to contact Illinois Power, Tucker did not personally call Illinois Power. After some time Patterson told Tucker to leave the house because the gas meter was not on. Tucker could not remember exactly how long she waited before she left with Conley and Lee to return to her daughter’s home; however, she testified that they left at approximately 10 p.m.

James Lee testified that sometime between 4 and 5 p.m. on January 29, 1985, he observed two men from Illinois Power working across the street from Tucker’s house. He testified that he hollered to the men, “Don’t you all cut that, boy.” Lee asked the men why they were disconnecting the gas service and was told that they had orders to cut it off. Lee testified that he advised the men, “Our gas bill is paid up.” The men said nothing to Lee but continued to work. Lee testified that shortly thereafter the house began to get cold and Mali-sie Tucker told Lee to take her and Tanner Conley to Hamilton’s house. Lee estimated that from the time he first noticed the Illinois Power men working until the time Tucker, Conley and he left the house, approximately 20 minutes or more passed. The drive to Hamilton’s house took approximately 25 minutes.

Larry Jacob, a pipefitter for Illinois Power, testified that on January 29, 1985, he was given orders to disconnect the gas service for a residence located at 712 North 59th Street in East St. Louis, Illinois. Jacob testified that the gas service was disconnected at approximately 1:30 p.m. As a result of that disconnection, the service to 704 North 59th Street, Malisie Tucker’s residence, was also disconnected. Jacob testified that he was not given the proper schematic showing the layout of the gas pipes and, therefore, was not aware that the gas line connecting 712 North 59th Street branched over to Tucker’s residence. It is the Illinois Power commercial office’s responsibility to see that the proper schematic is given to the pipefitter. Jacob testified that neither he nor anyone else gave Malisie Tucker notice that gas service was going to be disconnected in the area.

Rod Van Dyke, another Illinois Power pipefitter, testified that he went with Larry Jacob to disconnect the gas service to 712 North 59th Street. Van Dyke testified that no one advised them not to disconnect the gas service while they were working in the area that morning. It was not until the following morning that Van Dyke and Jacob were told by their superiors that the disconnected gas line branched to 704 North 59th Street. Van Dyke testified that Illinois Power trucks are often equipped with radios so that employees may discuss work orders with supervisors if a question or problem arises. He testified that many times he has had occasion to use the radio to call the office to discuss a work order. Van Dyke explained that Illinois Power’s policy was not to disconnect gas service to a residential customer when the weather forecast called for the temperature to fall below 32 degrees Fahrenheit. On the morning of January 30, 1985, Van Dyke reconnected the gas service to Tucker’s residence.

Glen Tammons worked the night shift as an Illinois Power pipe-fitter, and his duties included reconnecting gas service and repairing gas leaks. On January 29, 1985, he received a call from the Illinois Power dispatcher advising him that someone at 704 North 59th Street had called at 7:26 p.m. to inform Illinois Power that there was no gas service at that address. The temperature at the time was freezing. Tammons testified that a gas leak takes priority over a service call to connect gas service because of the potential for an explosion. As there were gas leaks that needed repair that evening, he did not arrive at Tucker’s residence until approximately 10:43 p.m. Upon his arrival he and an apprentice pipefitter, Eunice Arnold, were told by Tucker’s neighbor and landlord that the occupants of 704 North 59th Street were staying with relatives and would not be back that evening. Based on this information Tammons’ crew left the scene. Tammons testified that he will not reconnect gas to a house that has had the service interrupted without being able to get inside to check the appliances because of the potential for an explosion.

Calvin Randolph, assistant superintendent for Illinois Power, testified that prior to January 1985 Illinois Power was aware that gas service was sometimes terminated because branches to other lines are disconnected. Randolph agreed that it is not justifiable to terminate gas service to a customer when the temperature is 32 degrees or below. He explained that a proper schematic showing the layout of the gas lines should be in all customer files that may be affected by the gas line that is being disconnected. Randolph testified that to his knowledge no one at Illinois Power ever intended to discontinue gas service to Tucker’s residence and that it is the policy of the company that if a customer requests gas service to be reconnected when the weather is below freezing Illinois Power should do it, particularly if they had disconnected the gas in error.

Douglas Scott, gas-distribution superintendent for Illinois Power, testified that on January 29, 1985, Tucker’s account with Illinois Power was paid in full and she had the right to have gas service to her home. He testified that it was the responsibility of the pipefitters and their supervisors to make sure that the service orders and the schematics which accompany them are as accurate as possible. Scott testified that as of 1971 Illinois Power had within its possession the proper schematic for the layout of the gas lines to 712 North 59th Street and the branch of 704 North 59th Street. He testified that the gas-service order given to the pipefitters on January 29, 1985, indicates that the workers were only to retire partial service. The gas service order which was admitted into evidence has a marked box indicating that the type of service required by the order is “branch” rather than a single or multi-type of service. Scott further explained that gas leaks take priority over situations where gas service is interrupted. On the night of the incident in question, Illinois Power had two gas leaks to attend to in addition to Tucker’s “no gas” call.

The jury returned a verdict of $5,000 for Tucker. Plaintiff filed a post-trial motion and a motion for attorney fees and costs. The trial court denied plaintiff’s post-trial motion but awarded Tucker $1,666.67 in attorney fees plus court costs.

Count II of Tucker’s complaint sought punitive damages and alleged that Illinois Power intentionally, willfully and/or wantonly interrupted natural gas service to her residence. At the close of all of the evidence, the court struck count II and ruled that the facts and circumstances of the case did not warrant submitting the issue of punitive damages to the jury.

We agree with the trial court for two reasons: (1) section 5— 201 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 5— 201), which allows an award of punitive damages where the utility company acts willfully in violating the Public Utilities Act or any rule, regulation or decision of the Illinois Commerce Commission promulgated thereunder, does not apply in the instant case where Illinois Power Company did not intentionally or knowingly violate any provision of the Act or rules or regulations promulgated thereunder; and (2) in any event, the evidence is insufficient to warrant an award of punitive damages where the evidence shows only that Illinois Power Company acted negligently, and not willfully, in temporarily disconnecting plaintiff’s gas service to her residence.

While the trial court did not base its decision on the first of these reasons, finding that the Public Utilities Act did apply to the instant case, but based its decision as to punitive damages only on a finding that the evidence was insufficient to support a finding of willfulness, we may affirm on any basis which is supported by the record. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.) Because the issue of the applicability of the Public Utilities Act to the case at bar was extensively argued in the trial court, we may base our affirmance on this ground as well.

Throughout the pendency of this proceeding, Illinois Power Company argued that section 5 — 201 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 5 — 201), which allows an award of damages for a violation of any provision of that Act, does not apply to the facts of the instant case. That section provides:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was willful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.
In every case of a recovery of damages by any person or corporation under the provisions of this Section, the plaintiff shall be entitled to a reasonable attorney’s fee to be fixed by the court, which fee shall be taxed and collected as part of the costs in the case.” Ill. Rev. Stat. 1989, ch. lll2/3, par. 5 — 201.

In her complaint against Illinois Power Company, plaintiff alleged that defendant had violated section 8 — 205 of the Act in that it intentionally and/or willfully and wantonly interrupted or terminated the natural gas service to plaintiff’s residence when the National Weather Service forecasted that the temperature would be 32 degrees Fahrenheit or below, and that defendant violated section 8 — 202 of the Act in that it intentionally and/or willfully and wantonly failed to warn plaintiff that it was terminating or interrupting the natural gas service to her residence.

Section 8 — 205 of the Act provides:

“Termination of gas and electric utility service to all residential users *** for nonpayment of bills, where gas or electricity is used as the only source of space heating or to control or operate the only space heating equipment at the residence is prohibited,
1. on any day when the National Weather Service forecast for the following 24 hours covering the area of the utility in which the residence is located includes a forecast that the temperature will be 32 degrees Fahrenheit or below.” (Ill. Rev. Stat. 1989, ch. lll2/3, par. 8 — 205(1).)

Section 8 — 202 of the Act provides:

“Any public utility *** which furnishes electricity or gas for space heating shall, during the calendar months of November, December, January, February, and March:
(a) give written notice of its intention to terminate or cut off such service or supply for any reason, other than by request of the customer, to the customer.” Ill. Rev. Stat. 1989, ch. lll2/s, par. 8 — 202(a).

It cannot be disputed here that the termination of plaintiff’s gas service was unintentional, unknowing and accidental. Illinois Power Company did not intend to terminate plaintiff’s gas service and did not know, until notified by plaintiff’s landlord, that it had done so inadvertently and accidentally.

Section 8 — 205 prohibits termination of gas service during the winter months only for nonpayment of bills. This necessarily implies that, in order to violate the statute, the termination must be intentional and knowing, for it requires that the utility have a specific purpose and reason for termination, i.e., nonpayment of bills. By its own terms, section 8 — 205 does not prohibit termination of gas service in an emergency, in the event of theft, or by mistake.

Section 8 — 202 requires notice of the utility’s intention to terminate gas service during the winter months. It seems obvious that where there is no intention to terminate, as where the termination is accidental and unknowing, there can be no prior notice.

Thus, a plain reading of the sections of the Act involved here demonstrates that these sections address themselves only to intentional and knowing termination or interruption of gas service. Where the termination or interruption of gas service is accidental, unintentional and unknowing, there is no violation of the Act, and section 5— 201, which provides for an award of damages, does not apply. Only violations of the Act or a rule or regulation promulgated thereunder are actionable under section 5 — 201 of the Act. Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 219, 384 N.E.2d 323, 326.

Our interpretation of the statute is supported by well-known principles of statutory construction. It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. In doing so, one must first look to the language of the statute itself, giving it its plain and ordinary meaning, as the statutory language is the best indication of the drafters’ intent. Where the intent can be ascertained from the statutory language, it must be given effect without resorting to other aids for construction. A court may not declare that the legislature did not mean what the plain language of the statute imports. People v. Bryant (1989), 128 Ill. 2d 448, 455, 539 N.E.2d 1221, 1224.

The Public Utilities Act is in derogation of the common law and, as such, is to be strictly construed in favor of those sought to be subjected to its operation. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 327.) Thus, the statute is to be strictly construed in favor of the utility company. The courts will read nothing into such a statute by intendment or implication (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 327), and such statutes will not be extended any further than what the language of the statute absolutely requires by its express terms or by clear implication. In re W.W. (1983), 97 Ill. 2d 53, 57, 454 N.E.2d 207, 209.

The sections of the statute in question here by their own terms prohibit termination of gas service during the winter months without prior notice and where the reason is for nonpayment of bills. As such, they require that the termination be intentional and not accidental. Because the statute is in derogation of the common law, it is to be strictly construed in favor of the utility company, and we may not expand upon its terms or language. Accordingly, we find that where, as here, there has been no violation of the Public Utilities Act, section 5 — 201 of that Act does not authorize an award of punitive damages.

Nor, as the trial court found, is plaintiff entitled to punitive damages under a common law theory of liability. The trial court found that the evidence did not support a finding that Illinois Power Company acted willfully and wantonly in accidentally and negligently terminating plaintiff’s gas service. We agree.

The initial decision whether punitive damages may be imposed in a particular case is a matter normally reserved to the trial judge. (Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 414, 563 N.E.2d 397, 401.) Submission of the issue of punitive damages to the jury rests within the trial court’s discretion, and that decision will not be disturbed absent an abuse of that discretion. Warren v. LeMay (1986), 142 Ill. App. 3d 550, 580, 491 N.E.2d 464, 483.

Punitive damages are not favored in the law. Thus, they are awarded only when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. (Loitz, 138 Ill. 2d at 414-15, 563 N.E.2d at 402.) Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence. Punitive damages are appropriate only for conduct involving some element of outrage, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others. (Loitz, 138 Ill. 2d at 415-16, 563 N.E.2d at 402.) Willful and wanton misconduct approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it. (Loitz, 138 Ill. 2d at 416, 563 N.E.2d at 402.) To establish willful and wanton conduct, a plaintiff must prove, the defendant’s intent to inflict injury or a callous disregard for whether injury will occur. In re Salmonella Litigation (1990), 198 Ill. App. 3d 809, 817, 556 N.E.2d 593, 599.

Without again discussing the facts already set forth herein, we find that they do not support the submission of the issue of punitive damages to the jury. The evidence indicates that the mistake of Illinois Power Company in inadvertently disconnecting plaintiff’s gas service constituted ordinary negligence and not willful or wanton conduct. We do not think the evidence demonstrates that defendant acted with actual or deliberate intention to harm or with utter indifference to or conscious disregard for the rights of plaintiff. Accordingly, we affirm the trial court’s decision not to submit the issue of punitive damages to the jury.

We point out that, even had we found that the Public Utilities Act did apply to the case at bar, we would have affirmed the decision of the trial court not to submit the issue of punitive damages to the jury. Section 5 — 201 of the Public Utilities Act requires that, in order to award punitive damages, the trial court must find that the misconduct of the utility company was willful. (Ill. Rev. Stat. 1989, ch. lll2/3, par. 5 — 201.) In the instant case, it was not.

At trial, after a verdict was rendered in favor of Tucker, she filed a motion for attorney fees based on an alleged violation of her rights under the Public Utilities Act. (Ill. Rev. Stat. 1983, ch. lll2/3, par. 77.) The trial court ruled that the Public Utilities Act is applicable in this case and awarded Tucker attorney fees plus court costs. Because we have already held that section 5 — 201 of the Public Utilities Act does not apply to the unintentional and unknowing termination of plaintiffs gas service here, we find that the trial court erred in awarding plaintiff attorney fees under that section. Accordingly, we reverse that part of the court’s order awarding attorney fees. Further, because we find plaintiff is not entitled to an award of any attorney fees, we need not address plaintiff’s next argument that the trial court erred in calculating the amount of attorney fees it awarded plaintiff.

Tucker next argues that the trial court erred in allowing one of the defendant’s witnesses to testify without establishing a proper foundation for his testimony.

At trial, Tucker’s treating physician, Dr. Frazer, testified that he treated Tucker on January 30, 1985. Dr. Frazer’s practice is located in East St. Louis, Illinois. On that date he found Tucker’s hands and feet were swollen, red, and tender to the touch; her joints were swollen and pained. Dr. Frazer diagnosed her condition as “injury due to the cold, frostbite of the extremities, first degree.” Following Dr. Frazer’s testimony, Illinois Power called the director of the emergency room at St. Louis Medical Center, Dr. Ronnau.

Dr. Ronnau testified that he examined Tucker on September 29, 1989, and it was his opinion that she suffered from a number of diseases prior to the incident of January 1985: cardiovascular disease, bronchial pulmonary disease, renal impairment, liver sclerosis, tuberculosis, osteoarthritis, and peripheral vascular disease. He testified that the superficial frostbite Tucker suffered did not cause or aggravate any of these conditions. When asked on direct examination about his experience with cold-related injuries, Dr. Ronnau testified,

“I think we see more than the rest of the city put together. We see a number of frostbite injuries, hypothermia injuries, cold injuries, exposure injuries. I think we see more than the rest of the city because we are responsible for the indigent, and the indigent have more cold problems in the winter than others.”

Plaintiff did not object to this testimony.

After plaintiff cross-examined Dr. Ronnau, the witness was asked on redirect whether there are any hospitals in the area that see more cold-related injuries than St. Louis Medical Center. Plaintiff objected to this question on the grounds that it lacked a proper foundation as there was no showing that the doctor had personal knowledge about the number of patients treated at other hospitals. The court overruled the objection and allowed the witness to answer the question.

Tucker argues that the admission of this testimony was prejudicial and denied her a fair trial because Dr. Ronnau’s opinions related directly to the central controversy of the case, namely, the nature and extent of Tucker’s injuries. Tucker argues that because Ronnau was the only witness to testify that Tucker did not suffer permanent and progressive damage as a result of the cold-related injury and that the hospital where he is on staff treats more cold-related injuries than the entire city, his opinion was given undue credibility. It is generally true that an expert’s opinion based upon improper elements is incompetent and should be excluded or stricken upon proper motion; however, errors in rulings on the admissibility of evidence do not necessarily require reversal. People ex rel. Department of Transportation v. Birger (1987), 155 Ill. App. 3d 130, 507 N.E.2d 1321.

During direct examination, Dr. Ronnau was permitted to testify without objection as to his opinion that St. Louis Medical Center treats more cold-related injuries than any other hospital in the city. Plaintiff did not delve into the basis for this opinion during cross-examination. During redirect examination Illinois Power’s question to Dr. Ronnau regarding the number of patients treated at St. Louis Medical Center for cold-related injuries reiterated the question asked on direct examination. While the plaintiff’s objection to lack of foundation appears well taken, we conclude that the court’s overruling of the objection was not reversible error in view of the fact that the same testimony had already been adduced with no objection on direct examination of Dr. Ronnau.

The next issue for review is whether the trial court erred in allowing Illinois Power to argue comparative negligence to the jury. After all the evidence was presented, Tucker moved to dismiss Illinois Power’s affirmative defense of comparative fault. The court granted the motion. During closing argument Illinois Power argued, over objection, that Malisie Tucker was not stranded in her cold house. He argued that Tucker could have gone to her landlord’s house, she could have left her house sooner, or she could have used James Lee’s heated car. Tucker contends that the defendant should not have been permitted to make such arguments to the jury because the court had ruled that Tucker was not at fault.

We cannot find that the trial court erred in allowing Illinois Power to argue comparative fault during closing argument because we find that the court erred in initially directing a verdict on the issue of comparative fault. “[A verdict] ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Based on this standard the circuit court may properly direct a verdict only when the evidence on an issue presents no factual question for the jury’s consideration. (Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 646, 561 N.E.2d 264, 269.) Sufficient evidence was presented to raise a factual question as to Tucker’s comparative fault. Evidence was presented at trial that the plaintiff’s injuries might have been mitigated had she gone to her landlord’s house for shelter, left her own home sooner than she did, or returned to James Lee’s heated car. Had the court not directed a verdict as to comparative fault, the jury would have been invited to apportion damages taking into consideration such evidence. Based on the foregoing we cannot find that the trial court erred in allowing Illinois Power to argue comparative negligence to the jury during closing argument.

The final issue is whether the trial court erred in refusing to submit Tucker’s tendered jury instruction number 21. The pertinent portion of that instruction sets forth the provisions of section 8 — 205 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 8— 205). An instruction was given to the jury which set forth applicable provisions of section 8 — 202 of the Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 8 — 202). Tucker argues that because Illinois Power violated both sections 8 — 202 and 8 — 205, instruction 21 should have been given to the jury. Section 8 — 202 provides in part:

“Any public utility *** which furnishes electricity or gas for space heating shall, during the calendar months of November, December, January, February, and March:
(a) give written notice of its intention to terminate or cut off such service or supply for any reason, other than by request of the customer, to the customer.” (Ill. Rev. Stat. 1989, ch. lll2/s, par. 8 — 202(a).)

Section 8 — 205 of the Act provides:

“Termination of gas and electric utility service to all residential users *** for nonpayment of bills *** is prohibited ***.” Ill. Rev. Stat. 1989, ch. lll2/s, par. 8-205.

An instruction given by the trial court is justified if it is supported by some evidence in the record, and the trial court has discretion in deciding which issues are raised by the evidence. (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 390, 502 N.E.2d 826, 837.) In this case there was no evidence that Tucker was delinquent in her utility payments or that the interruption of her gas service was due to her failure to pay her bill. On the contrary, the evidence established that Tucker’s account with Illinois Power was current. It is error to give instructions where there is no evidence on which to base the instruction. (Lively v. Kostoff (1988), 167 Ill. App. 3d 384, 395, 521 N.E.2d 554, 562.) The trial court did not abuse its discretion in refusing to submit plaintiff’s instruction number 21.

For the reasons cited herein, we: (1) reverse the trial court’s award of attorney fees; (2) affirm the trial court’s decision precluding the plaintiff from submitting the issue of punitive damages to the jury; and (3) affirm the trial court as to the other issues raised on appeal.

Affirmed in part; reversed in part.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE HARRISON

text:
    BIG RIVER ZINC CORPORATION et al., Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Appellees.
    Fifth District
    No. 5—91—0067
    Opinion filed July 30, 1992.

      Edward C. Fitzhenry, Jr., and Eric Robertson, both of Lueders, Robertson & Konzen, of Granite City, for petitioners.
    Roland W. Burris, Attorney General, of Springfield (David L. Nixon, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Joseph H. Raybuck, of St. Louis, Missouri, for respondent Union Electric Company.
   JUSTICE HARRISON

delivered the opinion of the court:

The Illinois Industrial Energy Consumers (IIEC), a consortium of industrial users of electricity, appeals to this court for administrative review of an order entered by the Illinois Commerce Commission (Commission) on November 20, 1990, adopting an energy plan filed by Union Electric (UE) pursuant to section 8 — 402(c) of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 8 — 402(c)) and title 83, section 440, of the Illinois Administrative Code (83 Ill. Adm. Code §440 (1991)). On this appeal, IIEC challenges only that part of the order which “approved in concept” UE’s proposal to implement a “rider” to recover research and development costs associated with “demand-side management programs.” For the reasons which follow, we hold that the propriety of the Commission’s views on the use of riders to recover demand-side energy costs is not yet ripe for judicial review. Accordingly, this appeal shall be dismissed.

Section 8 — 402(c) of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/s, par. 8 — 402(c)) provides that every two years each public utility providing energy services is required to file an energy plan with the Department of Energy and Natural Resources and the Commerce Commission. That energy plan is required to include, among other things, a demonstration that it represents “the least-cost means of satisfying energy service needs consistent with the objectives of [the Public Utilities Act].” (Ill. Rev. Stat. 1989, ch. lll2/3, par. 8 — 402(d)(iii).) Pursuant to a previous order of the Commerce Commission adopting a comprehensive utility energy plan for the State of Illinois (see Ill. Rev. Stat. 1989, ch. lll2/3, par. 8 — 402(b)), public utilities have also been directed to investigate “demand management programs that will enable them to defer the need for additional generating capacity over the planning horizon in a cost effective manner.” Re Comprehensive Electric Energy Plan (Illinois Commerce Commission, Oct. 6,1989), 106 PUR 4th 349, 372.

In conjunction with this requirement, the Commerce Commission has directed the utilities to develop as part of their individual energy plans “proposals for the recovery of prudently-incurred costs associated with analysis, design and implementation of demand-side programs.” (106 PUR 4th at 374.) According to the Commission,

“[bjased upon these proposals and other such information as the Commission deems necessary and appropriate, the Commission shall determine the method(s) of cost recovery appropriate for use by the utilities. Further, the Commission formally states its intention to provide for full recovery of prudently-incurred costs associated with demand-side analysis and programs. Further, the Commission formally acknowledges a potential barrier to implementing demand-side programs represented by the potential for lost revenue, and utilities are hereby directed to include in their proposals for cost recovery proposals for reducing their potential barrier.” (106 PUR 4th at 374.)

These provisions regarding proposals for recovery of costs for demand-side analysis and programs were included in the Commerce Commission’s previous order by stipulation of the parties to the earlier proceeding. Among those parties was IIEC, the appellant in this case.

UE duly filed its energy plan with the Commerce Commission on January 8, 1990, to comply with the foregoing requirements and directives. That plan did not include a specific proposal for recovery of costs for demand-side programs but did urge that a “rate adjustment mechanism for recovery of expenses incurred in demand-side capability building, data collection, and,test programs should be developed to allow for recovery of such costs immediately.” In subsequent proceedings regarding UE’s proposed energy plan, a representative of that utility provided a more detailed response. He testified that what UE had in mind was recovery of its “research and development expenses for capability building for demand-side programs” using “a rider similar to the fuel adjustment charge” which would be charged to all customers on a kilowatt-hour basis. In his testimony, the UE representative did not ask the Commission to approve a rider at that time. Rather, he requested approval only of “the concept of a rider.”

The “fuel adjustment charge” alluded to by UE’s representative is authorized by section 9 — 220 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 9 — 220). That statute provides that

“the Commission may authorize the increase or decrease of rates and charges based upon changes in the cost of fuel used in the generation or production of electric power, changes in the cost of purchased power, or changes in the cost of purchased gas through the application of fuel adjustment clauses or purchased gas adjustment clauses.” (Ill. Rev. Stat. 1989, ch. lll2/s, par. 9-220.)

Basically, what such “adjustment clauses” do is permit utilities to pass along to consumers changes in certain, specified costs without requiring the utilities to initiate formal rate-making proceedings under section 9 — 201 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 9 — 201) each time the rates are changed.

The significance of this becomes apparent when one considers that under section 9 — 201, a public utility cannot change the rates it charges without first filing a proposed rate schedule with the Commerce Commission “stating plainly the change or changes to be made.” (Ill. Rev. Stat. 1989, ch. lll2/3, par. 9 — 201(a).) The propriety of proposed change or changes is then subject to review by the Commission. In determining whether a utility should be permitted to alter the rates it charges to its customers, the Commission looks not only at the utility’s operating costs but also its rate base and its allowed rate of return. (Citizens Utilities Co. v. Illinois Commerce Comm’n (1988), 124 Ill. 2d 195, 200, 529 N.E.2d 510, 512.) Ratemaking determinations are done in the context of a “test year” (124 Ill. 2d at 201, 529 N.E.2d at 513; 83 Ill. Adm. Code §285.150 (1991)), detailed filing requirements must be met by the utility (see 83 Ill. Adm. Code §285.110 et seq. (1991)), and the proposed rate changes must be “just and reasonable” (see Ill. Rev. Stat. 1989, ch. lll2/3, pars. 9 — 101, 9— 201(c)).

IIEC opposed the rider proposal. Its expert, Dr. Alan Rosenberg, testified that the rider was unnecessary and constituted poor regulatory practice. All other parties, however, supported the use of a rider. As we indicated earlier in this disposition, the Commerce Commission ultimately approved UE’s energy plan. In its order granting that approval, the Commission expressly endorsed the concept of a rider for a recovery of demand-side management costs. From that portion of the Commission’s order, IIEC now appeals.

We shall not reach the merits of this appeal, for there is one preliminary matter which prevents us from going forward. The Commerce Commission has argued that the appeal should be dismissed because the question of whether riders may be used for recovery of demand-side management costs is not yet ripe for review. We agree. The ripeness doctrine has been developed by the Federal courts. It emanates from the case-or-controversy clause of article III of the Federal Constitution (U.S. Const., art. Ill), which limits the Federal court’s subject matter jurisdiction. (St. Clair v. City of Chico (9th Cir.1989), 880 F.2d 199, 201, cert. denied (1989), 493 U.S. 993, 107 L. Ed. 2d 539, 110 S. Ct. 541.) Although the courts of this State are not subject to the case-or-controversy limitation of article III (U.S. Const., art. Ill), we are bound by a similar restriction. Under State law, courts may rule only where an “actual controversy” is presented. They are prohibited from entering judgments or orders where it appears that a judgment or order “would not terminate the controversy or some part thereof, giving rise to the proceeding.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(a).) Accordingly, the Federal ripeness doctrine has been embraced by our supreme court. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 546, 370 N.E.2d 223, 226.

The supreme court has held that in the context of a challenge against unlawful administrative action, the purpose of the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. (68 Ill. 2d at 546, 370 N.E.2d at 226.) The key considerations which must be taken into account when deciding whether a challenge to an administrative agency’s decision should be dismissed on grounds of ripeness are the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. A.E. Staley Manufacturing Co. v. Illinois Commerce Comm’n (1988), 166 Ill. App. 3d 202, 206, 519 N.E.2d 1130, 1133.

The basic issue posed by this appeal is whether the Commerce Commission has the legal authority to permit utilities to recover their demand-side management costs through riders instead of requiring them to utilize formal rate-making proceedings. This is the type of legal issue that courts have occasionally dealt with without requiring a specific attempt at enforcement. Under the test we have cited above, however, ripeness depends not only on how adequately a court can deal with the legal issue presented but also on the degree and nature of the administrative decision’s present effect on those seeking relief. Toilet Goods Association v. Gardner (1967), 387 U.S. 158, 164, 18 L. Ed. 2d 697, 702, 87 S. Ct. 1520, 1524.

In this case, the Commerce Commission’s pronouncements on the propriety of riders will have no immediate, tangible effects on UE, its shareholders, or its customers. Those pronouncements, after all, were made in the context of a proceeding whose purpose was to determine the adequacy of the energy plan submitted by UE under section 8 — 402 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 8 — 402). This was not a proceeding in which UE was seeking authorization to implement a rider, and no rider was approved. Indeed, a specific rider mechanism has not yet even been proposed.

If and when UE is able to formulate a specific rider mechanism, it may not unilaterally implement that mechanism to recover its demand-side management costs from the members of the IIEC and its other customers. Rather, by the express terms of the Commerce Commission’s order, UE must file its rider with the Commission in a separate proceeding, and implementation of the rider will be contingent upon review and approval by the Commission. There is no dispute that any such approval will, in turn, be subject to review by the courts. Those proceedings, in our view, will furnish the more appropriate forum for challenging the legality of the use of a rider mechanism for the purposes suggested by UE. Until those proceedings take place, until UE’s customers are directly faced with having a specific rider actually implemented, consideration of the propriety of such riders is merely “an abstract disagreement over an administrative policy,” the resolution of which will not affect the challenging parties in a “concrete way.” Under the authorities cited above, the issue is therefore not yet ripe for our consideration. Accordingly, the appeal by IIEC is hereby dismissed.

Appeal dismissed.

GOLDENHERSH, P.J., and WELCH, J., concur.