author: JUSTICE DUNN

text:
    PAUL C. HALPER, III, Plaintiff-Appellant, v. JOHN VAYO, Defendant-Appellee (Paul Vogel, Defendant).
    Second District
    No. 2 — 90—0410
    Opinion filed March 5, 1991.

      Maureen P. McIntyre, of Henehan & McIntyre, of Cary, for appellant.
    David J. Bressler and Kenneth W. Newkes, both of Rooks, Pitts & Poust, of Wheaton, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Paul Halper, appeals from the dismissal of his complaint against defendant, John Yayo, and the trial court’s denial of leave to file an amended complaint. The issues on appeal are: (1) whether the one-year limitation provision in the Local Governmental and Governmental Employees Tort Immunity Act (Act) (111. Rev. Stat. 1989, ch. 85, par. 8 — 101) applies to minors, and (2) whether Yayo was immune from liability under section 3 — 109 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 109) and a certain provision of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24 — 24). We affirm in part, reverse in part, and remand.

Halper filed his initial complaint against Vayo and defendant Paul Vogel, who is not a party to this appeal, in the circuit court of McHenry County on October 21, 1988. Count I of the complaint was directed against Vayo. In count I, Halper alleged that, while participating in a wrestling practice at Richmond Burton Community High School on December 19, 1986, he suffered a leg injury. Halper further alleged that Vayo “undertook a medical assessment and treatment” of his injured leg and then had Halper wrestle against Vogel, who was a champion collegiate wrestler. By negligently treating Halper’s original injury, failing to have Halper get proper medical treatment for the injury, and allowing him to wrestle with Vogel afterwards, Vayo caused him to suffer further injury to the leg. Count II of the complaint contained allegations of negligence against Vogel.

Vayo filed a motion to dismiss count I of the complaint which the trial court granted on the basis that it was barred by the one-year statute of limitations set forth in section 8 — 101 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101). Halper then filed a motion to reconsider or, in the alternative, for leave to file an amended complaint. In the proposed amended complaint, Halper added a count which alleged wilful and wanton misconduct on the part of Vayo. This count contained the factual allegations that were present in count I of the original complaint, along with some additional allegations.

In this count, which was count II of the amended complaint, Halper alleged that the injury was to one of his knees. After he injured the knee, Vayo pulled his leg and manipulated the knee. Vayo then had Halper wrestle against Vogel, a champion collegiate wrestler. Because of Vayo’s actions, Halper suffered further injury to the knee and was forced to undergo surgery for meniscus and ligament damage. According to the allegations of count II, Richmond Burton Community High School had a written statement of athletic department policies. Vayo violated these policies on the date in question in the following ways: (1) by making and acting upon medical judgments; (2) failing to contact Halper’s parents; (3) failing to contact the Richmond rescue squad; and (4) failing to report the injury to the school nurse. Halper also alleged in count II that Vayo violated school and Illinois High School Association (IHSA) policies concerning participant eligibility by allowing Vogel, a college student, to wrestle with him.

In count I of the amended complaint, Halper restated the negligence allegations against Vayo contained in count I of the original complaint. Count III of the amended complaint was directed against Vogel. The trial court denied Halper’s motion to reconsider and motion for leave to file an amended complaint, ruling that, since the complaint was barred by the statute of limitations, no amendment could cure the defect. Halper voluntarily dismissed the count against Vogel the same day the above motion was denied. Halper now appeals.

Section 8 — 101 of the Act states in relevant part as follows:

“No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101.)

Halper filed his lawsuit approximately 22 months after the date he was injured. He argues on appeal, however, that his complaint was timely filed because section 13—211 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13—211) applies in the case at bar. That provision states:

“If the person entitled to bring an action, specified in Sections 13—201 through 13—210 of this Act, at the time the cause of action accrued, (i) is under the age of 18 years, *** then he or she may bring the action within 2 years after (i) the person attains the age of 18 years ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 13— 211.)

It is undisputed that Halper was under the age of 18 years at the time he was injured.

In support of his argument that the one-year statute of limitations set forth in section 8 — 101 of the Act applies to minors, Vayo relies upon our supreme court’s decision in Demehuk v. Duplancich (1982), 92 Ill. 2d 1. In Demehuk, the court held that the one-year limitation in the Dramshop Act (Ill. Rev. Stat. 1989, ch. 43, par. 135) applies to minors (Demehuk, 92 Ill. 2d at 9), thus adhering to its prior decision in Lowrey v. Malkowski (1960), 20 Ill. 2d 280. In both cases, the courts relied largely upon the rule that a limitation provision in a purely statutory cause of action is a condition precedent to bringing suit and thereby operates as a limitation upon the liability itself and not merely the remedy. Demehuk, 92 Ill. 2d at 6-7; Lowrey, 20 Ill. 2d at 283-84.

The case at bar is distinguishable in the above respect from Demehuk and Lowrey because the limitation period in section 8 — 101 of the Act is not part of a statutory cause of action. Instead, section 8 — 101 is a general limitation provision for suits against local entities and their employees. In Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, the court considered section 41 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1989, ch. 111 2/3, par. 341), which contains a limitation provision with language very similar to that of section 8 — 101. The court stated that the one-year filing requirement in section 41 “is not a condition precedent to the right to bring suit, but is a limitation provision which can be waived.” (Searcy, 146 Ill. App. 3d at 783.) The same is true with regard to section 8— 101 of the Act. Therefore, Demchuk and Lowrey are not controlling in this case.

Our supreme court considered the constitutionality of sections 8 — 101 and 8 — 102 of the Act in Fanio v. John W. Breslin Co. (1972), 51 Ill. 2d 366. (Section 8 — 102, since repealed, required individuals intending to sue a local entity to give the entity notice within six months of the date of injury.) In that case, the court stated “[t]he fact that the limitations of section 8 — 101 and 8 — 102 are not applicable to minors [citations] does not mean that these sections created arbitrary classifications.” (Fanio, 51 Ill. 2d at 368.) Although the above statement from Fanio is dictum, it is consistent with numerous Illinois cases in which statutes of limitation and notice provisions have been construed so as to preserve a minor’s right to a day in court and to avoid leaving minors with meritorious causes of action to the whims of self-constituted next friends for enforcement of their rights. See Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 73; Haymes v. Catholic Bishop (1965), 33 Ill. 2d 425, 428; McDonald v. City of Spring Valley (1918), 285 Ill. 52, 56; Dachs v. Louis A. Weiss Memorial Hospital (1987), 156 Ill. App. 3d 465, 469.

Our supreme court has stated “ ‘that a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision.’ ” (Wilbon, 73 Ill. 2d at 73, quoting Walgreen Co. v. Industrial Comm’n (1926), 323 Ill. 194, 197.) Thus, limitation provisions have only been held applicable to minors when they have been part of a statutory cause of action. We therefore conclude, as our supreme court stated in Fanio, that the limitation provision in section 8 — 101 of the Act does not apply to minors.

Our conclusion is further bolstered by the language of section 13 — 211 of the Code, which demonstrates the applicability of that provision. Section 13 — 211 states that, if an individual “entitled to bring an action, specified in Sections 13 — 201 through 13 — 210” of the Code is under 18 when the cause of action accrues, that person may file suit within two years after attaining the age of 18 years. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 211.) Halper’s lawsuit is an action for damages resulting from personal injury as specified in section 13 — 202 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202), and he was under the age of 18 at the time he was injured. Section 13 — 211 is therefore applicable, and Halper’s complaint was not barred by the statute of limitations.

In so holding, we are cognizant of the decision of the Appellate Court for the First District in Serafini v. Chicago Transit Authority (1979), 74 Ill. App. 3d 738. In Serafini, the court considered the applicability of the one-year limitation period in the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 341) to minors. The court held that minors would have one year from the date of attaining the age of 18 to file suit against the Chicago Transit Authority, even though section 21 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22), the predecessor to section 13 — 211 of the Code, provided that minors could file actions within two years after turning 18. Serafini, 74 Ill. App. 3d at 741.

Vayo urges this court at the very least to follow the Serafini rationale and conclude that Halper had only one year after turning 18 to file suit against Vayo. Although Halper filed suit before he turned 20, he did not do so before he turned 19. We decline to do so because this would conflict with the express language of section 13 — 211, which provides a two-year period for filing after the minor turns 18 for all actions specified in sections 13 — 201 through 13 — 210 of the Act. This includes defamation actions, even though the ordinary limitation period for such actions is one year (see Ill. Rev. Stat. 1989, ch. 110, par. 13 — 201). Thus, it is apparent that the legislature intended to give minors a two-year period for filing actions after they reach the age of 18, even if the ordinary limitation period for that action is one year as in the case at bar. We therefore decline to follow Serafini.

Vayo also contends that the dismissal order should be upheld because he is immune from liability with regard to the allegations of the complaint and amended complaint under section 24 — 24 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24 — 24). That provision states in part as follows:

“In all matters relating to the discipline in and conduct of the schools and the school children, [teachers and other certified educational employees] stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program, including all athletic and extracurricular programs, and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Ill. Rev. Stat. 1989, ch. 122, par. 24-24.)

This provision was intended to confer in loco parentis status upon teachers with regard to all activities connected with the school program, in disciplinary and nondisciplinary matters. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 171-72.) This status confers upon teachers immunity from liability for negligence with regard to such matters, but not for wilful and wanton misconduct. Kobylanski, 63 Ill. 2d at 173.

Halper argues that under our supreme court’s holding in O’Brien v. Township High School District 211 (1980), 83 Ill. 2d 462, section 24 — 24 of the School Code does not apply and Vayo is not immune from liability for his alleged negligent acts. In O’Brien, the plaintiff had an abrasion on his knee suffered in an activity not related to school. He went to a high school football practice the next day and the injury began to bleed. Eventually, a boil developed. Plaintiff alleged that the football coach had an assistant trainer open the boil, clean it, and rebandage the area, resulting in injury to him.

In holding that the football coach was not immune from liability for negligence for the conduct alleged in the complaint, our supreme court stated as follows:

“[Although the in loco parentis status of teachers is not restricted to disciplinary matters, its application is limited to activities connected with the school program. The complaint herein alleges that defendants directed an incompetent and untrained student to provide medical and surgical treatment to plaintiff. We do not view such alleged actions to be within the category of activities connected with the school program. The injury which originally caused the condition in plaintiff’s knee did not arise from any school-related activity. Furthermore, none of the defendants, according to the complaint, had the competence or training to administer medical treatment to plaintiff’s leg. *** Teachers are not privileged to do everything that a parent may do. Any decision as to the necessity of medical treatment, at least of the type alleged to have been administered here, was for the plaintiff’s parents, rather than his teachers, to make in the first instance.” O’Brien, 83 Ill. 2d at 467-68.

Halper argues that, under O’Brien, teachers are not permitted to make any decisions regarding medical treatment for students; therefore, Vayo enjoyed no immunity under the School Code when he rendered such treatment to him. O’Brien, however is distinguishable from the case at bar. In O’Brien, as noted above, the court stated that plaintiffs parents were the proper persons to make decisions concerning the necessity of medical treatment for him “at least of the type alleged to have been administered here.” (83 Ill. 2d at 467.) The treatment alleged to have been administered in O’Brien was a form of surgery. Moreover, this surgical intervention was provided for an injury which had occurred several days earlier during an activity that was not school related, and there was no apparent emergency requiring immediate treatment. O’Brien stands for the proposition that, under such circumstances, teachers may not usurp the decision-making authority of parents in a matter as fundamental as a child’s medical care. It should not be read as barring teachers from administering first aid to students under any circumstances.

In the case at bar, unlike O’Brien, Yayo is alleged to have treated an injury suffered by Halper in a school activity, and he allegedly treated Halper immediately after the injury occurred. As the three partial dissenters recognized in O’Brien:

“Every athletic and physical education department has its supplies and equipment necessary for administering first aid. Every coach and physical education teacher is called upon to treat minor injuries and ailments. Certainly, in doing so they are within the protection of the statute granting them immunity for acts of ordinary negligence.” 83 Ill. 2d at 473 (Ryan, J., concurring in part and dissenting in part).

Because of the unavailability of doctors at the scene of many school athletic injuries, school coaches and trainers are expected to provide initial first aid for both minor and serious injuries. This might include -wrapping a sprained ankle in an ace bandage or splinting and applying ice to a fracture. Due to the frequency of athletic injuries, providing initial treatment for such injuries is an inherent part of a school athletic or physical education program, and it is one that must often be performed by coaches. We therefore conclude that under the facts alleged in this case, the immunity provided by section 24 — 24 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24 — 24) from liability for ordinary negligence is applicable.

Since count I of the original complaint alleged that Vayo was negligent, and we have ruled he was immune from liability for negligence, that count was properly dismissed. We need not consider whether Vayo was also immune under section 3 — 109 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 109), which provides immunity to public employees who assist participants in hazardous recreational activities. This immunity does not apply to wilful and wanton conduct. See Ill. Rev. Stat. 1989, ch. 85, par. 3 — 109(c)(2).

Halper sought leave to amend his original complaint to add a count alleging wilful and wanton conduct on the part of Vayo. While the trial court’s decision on a motion for leave to amend will not be reversed absent an abuse of discretion, such a motion should be granted unless it is apparent that no cause of action can be stated even after amendment. (Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 381.) The trial court denied leave to amend on the basis that the complaint was barred by the statute of limitations, and no amendment could cure this defect.

We have ruled, however, that Halper’s complaint was filed within the applicable limitations period; therefore, leave to amend should not have been denied on the above basis. Vayo argues that, even under these circumstances, the denial of leave to amend was proper because the amended complaint fails to state a cause of action. The trial court’s judgment may be sustained by a reviewing court on the basis of any ground warranted by the record even if the trial court did not rely upon that ground. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) Since count I of the amended complaint alleges that Vayo was negligent, and we have determined he was immune from liability for negligence, leave to file count I of the amended complaint was properly denied.

Count II of the amended complaint alleges wilful and wanton conduct, and Vayo is not immune from liability for such conduct. Vayo argues, however, that the factual allegations of the count are not sufficient to state a cause of action for -wilful and wanton conduct. To plead a cause of action for wilful and wanton conduct, a plaintiff must allege that the defendant either intentionally injured plaintiff or acted in reckless disregard for his or her safety. (Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 190.) The mere conclusional allegation that defendant’s actions were wilful and wanton is not sufficient; it must be supported by factual allegations. Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 97.

The proposed amended complaint contains no allegations that Vayo intentionally tried to injure Halper. We must therefore decide whether count II adequately alleges that Vayo acted in reckless disregard for Halper’s safety. We conclude that it does.

The case at bar is distinguishable from Gara v. Lomonaco (1990), 199 Ill. App. 3d 633, which is cited by Vayo. In Gara, the plaintiff, a young girl, injured her ankle while jazz dancing in physical education class. In count I of her complaint, she alleged that defendants were negligent for failing to permit her to see the school nurse, or to call her parents so they could decide whether she needed medical care for the ankle, which turned out to be fractured. The court held that this count was properly dismissed because defendants were immune from liability for negligence under section 24 — 24 of the School Code. (Gara, 199 Ill. App. 3d at 638.) The court also held that a count alleging wilful and wanton conduct because defendants allowed plaintiff to dance on mats that were not taped down was properly dismissed since this did not rise to the level of wilful and wanton conduct. 199 Ill. App. 3d at 639-40.

In the present case, the amended complaint alleged more serious misconduct than plaintiff alleged in Gara. Halper alleged not only that Vayo failed to contact his parents or the rescue squad after the initial injury so he could receive proper medical treatment; Vayo also performed other acts which resulted in further injury to the knee. These acts included pulling on Halper’s leg and manipulating his knee in an attempt to treat the injury.

The vulnerability of the knee to injury in athletics is well known as knee injuries are all too common in sporting events. Such injuries are often among the most serious and debilitating injuries suffered in athletics. It is readily apparent that great caution should be shown in treating such injuries. Because of the substantial risks involved, we believe it can be reckless for an individual with no medical training to pull on the leg of a person with a knee injury and attempt to manipulate the knee assuming no exigency exists which necessitates such treatment. These actions go well beyond the provision of routine first aid which would be within the realm of an experienced coach’s expertise. Count II of the amended complaint not only alleges such conduct; it further alleges that Vayo then directed Halper to wrestle against a far more skilled and experienced wrestler who was a collegiate champion, exposing him to a risk of further injury. After Halper did suffer additional injury, Vayo still failed to secure proper medical treatment for him by calling the local rescue squad or Halper’s parents.

The above-alleged actions, if true and not mitigated by other circumstances, would constitute a reckless course of conduct which needlessly exposed Halper to the risk of further injury and, according to count II, did result in further injury. We therefore conclude that count II states a cause of action for wilful and wanton conduct. The trial court abused its discretion by failing to permit Halper to file an amended complaint containing the allegations contained in count II, and it shall do so upon remand. The trial court correctly refused to permit Halper to file count I of the amended complaint since Vayo is immune from liability for ordinary negligence.

For the above reasons, the judgment of the circuit court of McHenry County is affirmed in part and reversed in part, and the cause is remanded.

Affirmed in part; reversed in part and remanded.

REINHARD, P.J., and BOWMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
      In re MARRIAGE OF DAVID K. HARMON, Petitioner-Appellant, and MARGERY H. HARMON, Respondent-Appellee.
    Second District
    No. 2 — 89—1283
    Opinion filed March 6, 1991.

      Harry Schaffner, of Schaffner & Van Der Snick, P.C., of Geneva, for appellant.

      Howard W. Broecker, of Howard W. Broecker & Associates, Ltd., of Geneva, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, David Harmon, appeals from the judgment of the circuit court of Kane County ordering respondent, Margery Harmon, to pay $202 per month per child for child support. Petitioner raises two issues on appeal: whether the trial court’s award was not supported by the evidence; and whether the trial court erred when it deviated from the guidelines set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 505). We will briefly summarize only those facts necessary to resolve the issues presented in this appeal.

The parties’ marriage was dissolved on December 30, 1985, in the circuit court of Du Page County. Petitioner was awarded custody of the parties’ eldest child, Jennifer, and respondent was awarded custody of the other two minor children, David, Jr., and Alison. On June 23, 1988, petitioner filed a petition to enroll the judgment in Kane County circuit court and also filed a petition to change the custody of David, Jr., and Alison. The circuit court of Kane County granted petitioner’s petition to enroll the judgment. On September 23, 1988, the court granted the petition to change custody but reserved the issue of child support.

On October 3, 1988, petitioner filed a petition for child support. At that time Jennifer was 16, David, Jr., was 14, and Alison was 12. The hearing on the petition was not held until August 14, 1989. In an opinion letter, the court summarized the evidence adduced.

Respondent was a recovering alcoholic and was unemployed. Respondent received $3,000 per month from a trust, of which she was the sole beneficiary. A custodial or agency account handled the funds. The account had an asset balance of $708,000 and an estimated annual income of $43,000. In addition, respondent also owned two other accounts which had a combined market value of $100,000. Respondent stated that she intended to convert those funds to cash and deposit the proceeds in her custodial or agency account. Respondent also received interest payments on a principal balance of $90,000 from petitioner, in the amount of $750-per-month. Respondent’s most recent tax return showed an adjusted gross income of $55,752.24. Her affidavit of expenses showed that her expenses exceeded her income. The court noted, however, that some of those expenses appeared to be excessive.

Petitioner was a vice-president of the Harris Bank, earning a gross income of $125,000 per year. Petitioner did not file an affidavit of income and expenses, but he testified that his net monthly income was $6,700, and his monthly expenses included a mortgage payment of $1,725 and car payments totaling $510.

The court noted that it would consider income from all sources, including “unearned income” when determining the amount of child support. The court also considered the following factors: respondent’s health problems; her employability; the amount of income produced by her accounts, as opposed to their market value; and petitioner’s ability to support the children. The court concluded that respondent should contribute $140 per week in child support.

In the written order, the court adopted its findings from the letter opinion. However, the court ordered respondent to pay chüd support in the amount of $202 per month per child. Petitioner’s timely appeal followed. Respondent also filed a notice of cross-appeal, but she has not pursued the matter.

Petitioner first contends that the trial court abused its discretion by not ordering respondent to pay child support in an amount equal to 32% of her net income. According to petitioner, the trial court did not calculate respondent’s income properly because it did not consider all respondent’s sources of income, including the $750-per-month interest payment by petitioner to respondent, nor the $10,000 given to respondent by her mother each year. Petitioner has not cited any authority to support the proposition that gifts are to be considered when determining net income.

Respondent argues that the trial court’s finding of her net income was proper based on the evidence presented at the hearing. According to respondent, the interest payments are not income because they represent respondent’s share of the marital property. In addition, respondent asserts that gifts are not to be considered when determining a parent’s net income.

A trial court’s findings regarding net income are within the trial court’s discretion. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 390.) According to the Act, net income is the total of all income from all sources. (Ill. Rev. Stat. 1989, ch. 40, par. 505(aX3).) We agree with the trial court’s statement that passive income from bonds or securities will be considered when determining net income. (See In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1094.) However, when the unrefuted testimony is that the party does not actually receive the income from such passive sources, regardless of whether it is reported for Federal income tax purposes, it is not error for the trial court to refuse to consider the additional reported amounts when calculating net income. Ivanyi v. Granoff (1988), 171 Ill. App. 3d 411, 421-22.

The possibility of future financial resources also should not be considered when setting an award of child support. (Ivanyi, 171 Ill. App. 3d at 422.) For this reason, we agree with respondent that money she received as a gift cannot be considered income. Finally, we also agree with respondent that the monthly interest payments which comprise her share of the marital assets should not be used to calculate her net income. (See In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 850.) We therefore conclude that the trial court did not abuse its discretion in determining respondent’s net income.

Petitioner next contends that, even if the trial court used the right figures for determining respondent’s net income, it abused its discretion by departing from the guidelines set forth in section 505(a)(1) of the Act. (See Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) Petitioner argues that respondent should have been ordered to pay $229 per week, which is 32% of her net income.

Modification of child support is a matter of the trial court’s discretion, and we will not disturb a modification absent an abuse of discretion. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 167.) Section 505(a)(1) of the Act provides that the minimum amount of child support for three children should be 32% of the party’s net income. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) However, the guidelines are the beginning point for the determination, as they shift the burden of presenting evidence to the parent who is asking the court to deviate from the guidelines in setting the child support award. Scafuri, 203 Ill. App. 3d at 391.

The factors which justify a deviation include:

“(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).)

As this court has recently noted, “the support schedules contained in the statute have less utility as the net income of the parties increases because the schedules are premised upon percentages related to average child-rearing expenses.” (Scafuri, 203 Ill. App. 3d at 392.) In cases such as the present, where the parties both have above-average incomes, the specific facts govern whether the court should adhere to the guidelines. (203 Ill. App. 3d at 392.) Child support is not intended to provide children with an extravagant lifestyle but is designed to insure adequate support payments for the upbringing of the children. In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 261.

Here, the trial court found that petitioner had adequate resources to support the children on his income, which is an important factor. (In re Marriage of Cornale (1990), 199 Ill. App. 3d 134, 137.) The court also considered respondent’s health problems, alcoholism and employability. We conclude that, based on all the evidence presented, the trial court did not abuse its discretion in ordering respondent to pay less than 32% of her net income for child support.

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

Affirmed.

DUNN and GEIGER, JJ., concur.


text:
    HENRY L. NANCE, Plaintiff-Appellee, v. JAMES O. BELL, Defendant-Appellant.
    Second District
    No. 2 — 90—0651
    Opinion filed March 8, 1991.

      Karl C. Koonmen, of Loves Park, for appellant.
    Steven L. Nordquist, of Nordquist Law Offices, Ltd., of Rockford, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, James O. Bell, appeals from the judgment entered in the circuit court of Winnebago County in favor of the plaintiff, Henry L. Nance, granting possession of real estate located in Rockford, Illinois, to the plaintiff. The defendant argues on appeal that the plaintiff failed to make a proper demand for possession required under section 9 — 102(a)(5) of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 102(a)(5)) and, therefore, the trial court did not have jurisdiction to entertain the plaintiff's action for forcible entry and detainer.

On January 22, 1990, the defendant received by certified mail a document entitled “Notice of Forfeiture and Reentry and Intention to Institute Forcible Entry and Detainer Suit” (Notice). The Notice described that a contract sale of real estate had occurred between the plaintiff as seller and the defendant as buyer on August 22, 1986, which was evidenced by the “Agreement for Deed” and the defendant was now in default of that agreement. The Notice claimed that the defendant had not increased his principal and interest payments as required by the contract but, rather, had unilaterally reduced the amount owed on the principal and interest from $475 to $342.19 per month thereby causing a negative amortization. Because of the default by the defendant, the Notice gave the defendant 30 days to cure the default by tendering a sum of $37,663.47 plus the reasonable attorney fees incurred in enforcing or forfeiting the defendant’s interest to bring the contract current. The Notice gave a detailed description of the real estate concerned in the contract and declared that unless the above-mentioned amount was tendered by the defendant, the defendant’s rights under the “Agreement for Deed” would be forfeited and the plaintiff would institute a suit under the Forcible Entry and Detainer Act.

The defendant did not tender the amount asked for in the Notice within 30 days; therefore, on March 16, 1990, the plaintiff filed a complaint for forcible entry and detainer against the defendant and incorporated the previous Notice into the complaint.

On April 4, 1990, the defendant filed a motion to dismiss the plaintiff’s complaint for forcible entry and detainer under section 2— 619(a)(1) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(1)) for lack of subject-matter jurisdiction. The defendant claimed that the plaintiff failed to make a proper demand for possession as required under the Forcible Entry and Detainer Act. (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 101 et seq.) The motion to dismiss the plaintiff’s suit was heard and denied by the trial court on April 23, 1990.

On May 7, 1990, the defendant presented a motion to reconsider the trial court’s decision of April 23, 1990, which claimed that under section 9 — 102(a)(5) of the Forcible Entry and Detainer Act the plaintiff did not make a proper demand for possession in his Notice and, therefore, the trial court did not have the requisite subject-matter jurisdiction to entertain the action for forcible entry and detainer.

The motion to reconsider was heard and denied by the trial court. The cause proceeded to trial, and on May 11, 1990, the trial court entered a judgment awarding the plaintiff possession of the real estate in Rockford, Illinois. The defendant then appealed.

The defendant argues on appeal that subject-matter jurisdiction did not attach because the plaintiff failed to provide the defendant with a proper demand for possession as required under section 9— 102(a)(5) of the Forcible Entry and Detainer Act. For the following reasons we disagree and affirm.

A forcible detainer action is a special statutory proceeding that is in derogation of the common law; therefore, the party requesting this relief must comply with the requirements of the statute, especially those requirements that relate to jurisdiction. (Avdich v. Kleinert (1977), 69 Ill. 2d 1, 6; First National Bank v. Chrysler Realty Corp. (1988), 168 Ill. App. 3d 784, 791. But see Morris v. Martin-Trigona (1980), 89 Ill. App. 3d 85, 88.) However, the statute should be construed liberally. West Side Trust & Savings Bank v. Lopoten (1934), 358 Ill. 631, 637.

Where a forcible entry and detainer action is maintained against a contract purchaser, the party wishing to regain possession must proceed under section 9 — 102(a)(5) of the Forcible Entry and Detainer Act. This section specifically states:

“§9 — 102. (a) When action may be maintained. The person entitled to the possession of lands or tenements may be restored thereto in the manner hereafter provided:
* * *
5. When a vendee having obtained possession under a written or verbal agreement to purchase lands or tenements, and having failed to comply with the agreement, withholds possession thereof, after demand in writing by the person entitled to such possession ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 9— 102(a)(5).)

This section in the Forcible Entry and Detainer Act expressly requires a written demand prior to filing suit under the statute, and, thus, a written demand is a strict condition precedent before an action may be maintained. (Vogel v. Dawdy (1984), 123 Ill. App. 3d 356, 361, aff’d (1985), 107 Ill. 2d 68.) The demand must be properly made or jurisdiction will not attach. Eddy v. Kerr (1981), 96 Ill. App. 3d 680, 681.

The Forcible Entry and Detainer Act also requires that the party attempting to regain possession after a contract sale must also comply with the provisions of section 9 — 104.1(a) (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 104.1(a)). This section gives the purchaser “at least 30 days to satisfy the terms of the demand before an action is filed.” (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 104.1(a).) In Eppers v. First National Bank (1987), 151 Ill. App. 3d 902, 907, the court held that this section required that contract and condominium purchasers are entitled to more than just a mere demand for possession; they are also given 30 days in which to cure or satisfy the terms of the demand.

However, the purpose of a forcible entry and detainer action is still to determine who is entitled to possession of real estate and not to decide who has title concerning the property in question. (Noe v. Clemons (1988), 174 Ill. App. 3d 223, 230.) The court in Eppers also makes a distinction between the common-law actions of forfeiture and the statutory action for forcible entry and detainer. (Eppers, 151 Ill. App. 3d at 906-09.) Therefore, while section 9 — 104.1(a) gives a buyer 30 days in which to cure any defects, this does not relieve the seller of making a demand for possession under the statute. Thus, if the plaintiff's Notice was a notice of forfeiture only, even with a 30-day cure period the Notice would not have satisfied the requirements of either section 9 — 102(a)(5) or section 9 — 104.1(a) of the Forcible Entry and Detainer Act. With no demand for possession made on the defendant, the trial court would not have had jurisdiction over the forcible entry and detainer action.

The Forcible Entry and Detainer Act, however, does not require a precise formula for declaring a demand for possession. Section 9 — 104 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 104) provides an example of a form that may be used: “To *** I hereby demand immediate possession of the following described premises: (describing the same).” Ill. Rev. Stat. 1989, ch. 110, par. 9— 104.

In this appeal, the defendant claims that the plaintiff failed to make a proper demand for possession in his Notice that complied with section 9 — 102(a)(5) of the Forcible Entry and Detainer Act. While it is true the plaintiff’s Notice did not use the language stated in the statute and above, it is equally clear that the Forcible Entry and Detainer statute does not require a precise wording in order to make a demand for possession. (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 104.) The statute simply states this language may be used.

One explanation of what is necessary for a proper demand for possession is found in 35 Am. Jur. 2d Forcible Entry & Detainer §35 (1967), which states a demand for possession:

“[I]s sufficient if the person to whom it is given can understand from it what is demanded of him and by whom.
The primary purpose of a notice to vacate is to apprise the party to whom it is given of the description of the property desired to be vacated with such reasonable certainty that he cannot be mistaken as to what land is meant.” 35 Am. Jur. 2d Forcible Entry & Detainer §35, at 915 (1967).

Here, in the present cause, the plaintiff argues that the Notice the defendant received on January 22, 1990, was a proper demand for possession even though the Notice did not state specifically “I hereby demand immediate possession.” (Ill. Rev. Stat. 1989, ch. 110, par. 9— 104.) We agree that the plaintiff was not required to follow any precise formula in making demand on the defendant. Rather, the question is whether the defendant understood what was being demanded of him and by whom.

We first note that the Notice specially stated that it was a “Notice of Forfeiture and Reentry and Intention to Institute Forcible Entry and Detainer Suit.” The Notice went on to describe what was necessary to cure the buyer’s default; however, if the default was not cured, the buyer was subject to “An Act in Regard to Forcible Entry and Detainer.” The Notice also described in detail the real estate in question.

While the plaintiff could have avoided this whole problem by making a clear demand for possession, we believe that the Notice as a whole was sufficiently specific to notify the defendant that unless he cured the default stated in the Notice, his rights would be forfeited under the “Agreement for Deed” and because the defendant was in default, the plaintiff was demanding possession. The title of the Notice states it covered both the notice of the defendant’s forfeiture under the contract and the notice of the plaintiff’s reentry. The Notice also refers to an intention to proceed under the Forcible Entry and Detainer Act. We believe that the defendant could reasonably understand from the Notice that he was either to cure his default under the “Agreement for Deed” or he was to vacate the property in favor of the plaintiff.

Therefore, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


text:
    PRISCILLA MONSALUD, Adm’r of the Estate of Paciano Monsalud, Deceased, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 2 — 90—0572
    Opinion filed March 8, 1991.

      Kevin J. Kawa, of Querrey & Harrow, Ltd., of Wheaton, and Victor J. Piekarski and Michael Resis, both of Querrey & Harrow, Ltd., of Chicago, for appellant.
    John B. Kincaid, of Mirabella & Kincaid, of Wheaton, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, State Farm Mutual Automobile Insurance Company, appeals from an order of the circuit court granting summary judgment in favor of plaintiff, Priscilla Monsalud, the administrator of the estate of her husband, Paciano, in a declaratory judgment action. Defendant raises one issue on appeal: whether the trial court erred in finding that plaintiff was entitled to both uninsured and underinsured motorist coverage and in not finding that plaintiff is only entitled to uninsured motorist coverage not to exceed $80,000. We affirm.

While driving a rental car, Paciano was killed as the result of an automobile accident caused by Robert Harris and Michael Carpenter. Harris had an insurance policy providing $20,000 per person in liability coverage, and Carpenter was uninsured.

Plaintiff filed a declaratory judgment action against defendant to determine whether the estate was entitled to both uninsured and underinsured motorist coverage under two of four separate policies defendant issued to plaintiff and her husband. Each policy provided identical uninsured and underinsured motorist coverage with limits of $100,000 per person and $300,000 per occurrence. Each policy covered a different vehicle owned by plaintiff and her husband. Plaintiff sought to recover $100,000 under the uninsured motorist coverage and $80,000 under the underinsured motorist coverage, since Harris had paid $20,000 to plaintiff.

Under the uninsured motorist coverage, the policy had the following limitation:

“The limits of liability are not increased because:

a. more than one vehicle is insured under this policy; or

b. more than one person is insured at the time of the accident.” (Emphasis omitted.)

A similar limitation applied to the underinsured motorist coverage, except that in addition to the two limitations, the underinsured coverage would not be “increased because *** more than one underinsured motor vehicle is involved in the accident.” (Emphasis omitted.)

Under a section with the heading, “When Coverages U [uninsured motorist] and W [underinsured motorist] Do Not Apply,” the policy further stated that “THERE IS NO COVERAGE UNDER COVERAGE W [underinsured motorist] IF THE UNINSURED MOTOR VEHICLE COVERAGE APPLIES TO THE ACCIDENT.” Immediately following, the policy stated:

“If There Is Other Uninsured Motor Vehicle Coverage 1. Policies Issued By Us To You

If other uninsured motor vehicle coverage issued by us to you also applies to the insured’s bodily injury, the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability.” (Emphasis omitted.)

The limitation applicable when the insured had other underinsured motor vehicle coverage stated:

“1. Policies Issued By Us To You

If other underinsured motor vehicle coverage issued by us to you also applies to the insured’s bodily injury, the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability.” (Emphasis omitted.)

Based on these two paragraphs, defendant filed a motion for judgment on the pleadings, which was denied.

Plaintiff filed a motion for summary judgment, alleging that the following facts were uncontroverted: (1) Harris was underinsured, and Carpenter was uninsured; and (2) defendant accepted the premiums for uninsured and underinsured motorist coverage for all four policies. Plaintiff argued that there were no exclusions under the policies which would prevent plaintiff from recovering under the policies.

Defendant filed a cross-motion for summary judgment, arguing that the provision in the policies which precluded underinsured motorist coverage if uninsured motorist coverage applied tracked the language of section 143a — 2(6) of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2(6)) which permits an insurer to limit coverage if an insured has more than one policy. According to defendant, plaintiff was limited to a single recovery of benefits under the uninsured motorist coverage. Defendant further argued that had it paid plaintiff $100,000 under the uninsured motorist coverage, it would be subrogated and entitled to recover the $20,000 paid to plaintiff by Harris’ insurer. Thus, defendant concluded, plaintiff was entitled to, at most, $80,000.

The court denied defendant’s motion for summary judgment and granted summary judgment in favor of plaintiff. The court found that there was coverage available under one of the policies in the amount of $100,000 of uninsured motorist coverage and, under a second policy, $80,000 of underinsured motorist coverage was available. Defendant's timely appeal followed.

Summary judgment is an appropriate means of disposing of a cause where, as here, there are no genuine issues of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112.) Construction of an insurance policy is a question of law which we may review de novo. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1021.) The rules of contract construction apply when interpreting insurance policies. (Nationwide Mutual Insurance Co. v. Hecker (1989), 183 Ill. App. 3d 13, 15.) Courts should seek to interpret contract provisions in accordance with the intent of the parties. Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 453.

Defendant contends that the trial court erred in applying the “premium rule,” as discussed in Maid v. Illinois Farmers Insurance Co. (1981), 101 Ill. App. 3d 1065, and Greenholt v. Inland National Insurance Co. (1980), 87 Ill. App. 3d 638, 641. According to the premium rule, when premiums have been paid under separate policies, equity dictates that the claimant should be permitted to recover under more than one policy until he or she is fully indemnified. (Maid, 101 Ill. App. 3d at 1067.) Defendant argues that the premium rule is a rule of contract construction (101 Ill. App. 3d at 1067), and, since the policy here is unambiguous, defendant concludes that it was error to employ a rule of construction.

In support of its argument, defendant cites Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420. In Menke, the supreme court considered an antistacking clause which appeared under the heading “ ‘Other Automobile Insurance in the Company,’ ” which provided:

“ ‘With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the Named Insured by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.’ ” (Menke, 78 III. 2d at 423.)

The court noted that, if the clause at issue was ambiguous, it had to be construed in favor of the insured. (Menke, 78 Ill. 2d at 423.) The court concluded, however, that the clause was not ambiguous. Thus, the fact that the plaintiff had paid three separate premiums did not defeat the clear language of the antistacking clause. 78 Ill. 2d at 424-25.

According to defendant, the provision at issue in Menke is “substantially similar” to the provision at issue in the present case. Plaintiff correctly points out, to the contrary, that the clause at issue in Menke was an “other insurance” clause, whereas the provision here, “THERE IS NO COVERAGE UNDER COVERAGE W IF THE UNINSURED MOTOR VEHICLE COVERAGE APPLIES TO THE ACCIDENT,” is not under the “other insurance” section of the policy.

We believe that the clause here is not similar to the clause at issue in Menke. However, that does not answer the question whether the policy here is unambiguous. Plaintiff argues that the above provision applies to situations where a policyholder seeks both uninsured and underinsured motorist coverage under the same policy. According to plaintiff, there is nothing in that paragraph to limit coverage when an insured has been issued four identical but separate policies.

In support of this interpretation, plaintiff refers to the limitations which fall under the sections regarding other coverage in policies issued by defendant. Those antistacking clauses limit recovery when “other uninsured motor vehicle coverage issued by [defendant] also applies” to the insured’s injury, and when “other underinsured motor vehicle coverage” applies. Under plaintiff’s interpretation, it does not matter whether those provisions are ambiguous or unambiguous since the result is the same: the limitation does not apply because plaintiff seeks only one uninsured motorist coverage and one underinsured motorist coverage. According to plaintiff, there is a gap in the exclusion into which plaintiff’s injury falls.

To determine whether an ambiguity exists, we must examine the entire policy and interpret the pertinent parts in light of the whole document. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5.) A provision is ambiguous if it can have more than one reasonable meaning. (Gibson v. Country Mutual Insurance Co. (1990), 193 Ill. App. 3d 87, 90.) A provision which appears clear on its face may contain a latent ambiguity. (Gibson, 193 Ill. App. 3d at 90.) “[I]f a provision of an insurance contract can reasonably be said to be ambiguous it will be construed in favor of the insured.” Schnackenberg, 88 Ill. 2d at 4.

The policy states that “[t]he limits of liability are not increased because[ ] more than one vehicle is insured under this policy; or more than one person is insured at the time of the accident,” or because more than one underinsured motor vehicle was involved in the accident. (Emphasis added.) Recovery for both uninsured and underinsured motorist coverage under two separate policies does not contravene this limitation.

The provision which purportedly limits an insured to collecting only uninsured motorist coverage if underinsured coverage also applied is not under the “other insurance” section. Rather, it is immediately preceded by the following language:

“THERE IS NO COVERAGE UNDER COVERAGES U AND

W [uninsured and underinsured motorist coverage]:

* * *

FOR BODILY INJURY TO AN INSURED:

a. WHILE OCCUPYING, OR

b. THROUGH BEING STRUCK BY A MOTOR VEHICLE OWNED BY YOU, YOUR SPOUSE OR ANY RELATIVE IF IT IS NOT INSURED FOR THIS COVERAGE UNDER THIS POLICY.” (Emphasis omitted and added.)

This would indicate to an insured that the inapplicability of underinsured motorist coverage when uninsured motorist coverage applied was limited only to recovery under “this” policy. In addition, the “other insurance” limitations apply when an insured seeks to stack the same type of coverage. We believe that, when read as a whole, the limitation provisions reasonably can be interpreted to have two different meanings: (1) that underinsured motorist coverage does not apply if uninsured motorist coverage applies under the same policy; or (2) that underinsured motorist coverage does not apply if uninsured motorist coverage applies to an accident, regardless of whether the insured has other policies issued by defendant. We therefore conclude that the policy is ambiguous.

We disagree with defendant’s assertion that there is no underinsured motorist coverage if the uninsured motorist coverage applies to the accident even when the insured holds more than one policy issued by defendant. Defendant insists that its interpretation is the correct one because the policy contains no limitation that the provision is meant to apply only where claims are made for uninsured and under-insured motorist coverage under the same policy.

It is well established that, if an insurance policy provision is ambiguous, it should be construed in favor of the insured. (Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1986), 113 Ill. 2d 327, 331; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336.) Defendant has ignored the rule that the applicability of a limitation clause must be clear and free from doubt, and any doubt will be resolved in favor of the insured. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1098.) Courts “should not read into these policies a limitation which they do not purport to include.” (Strzelczyk, 113 Ill. 2d at 332.) If the insurer does not explicitly state the limitation, and there is an ambiguity, courts have the duty to construe the policy in favor of coverage (Radovanov v. Land Title Company of America, Inc. (1989), 189 Ill. App. 3d 433, 438) and to not imply limitations (Strzelczyk, 113 Ill. 2d at 332).

There is nothing in the policy which expressly precludes coverage for both underinsured and uninsured motorist coverage when the insured makes each claim under a different policy issued by defendant. Thus, construing the policy in favor of the insured, we conclude that the trial court properly found that plaintiff could recover under both the uninsured and underinsured motorist coverage.

Finally, defendant argues that it is subrogated to and entitled to recover the $20,000 plaintiff has received from the underinsured driver. Defendant bases this claim on the provision which provides that, under the uninsured motorist coverage, defendant is subrogated to the extent of its payments of the proceeds of any settlement recovered from the liable party.

Defendant’s argument is not persuasive. First, the clause on which defendant relies is for “[a]ny amount payable under [the uninsured motorist] coverage.” The amount payable under the uninsured motorist coverage will only be reduced from amounts paid by the uninsured driver, since such payments will be made based on that driver’s lack of insurance. The $20,000 was not paid by the uninsured driver, and, therefore, this provision is inapplicable.

Second, since the money was recovered from the underinsured driver, the subrogation clause of that coverage applies. That clause states “[a]ny amount payable under [the underinsured motorist coverage] shall be reduced by any amount paid or payable to or for the insured under any worker’s compensation, disability benefits or similar law.” Since this was a settlement from the underinsured tort-feasor, defendant is not entitled to subrogation. Instead, the provision credits defendant for any payments made by the underinsured driver via the policy provision that the most defendant must pay under the underinsured motorist coverage “will be the lesser of[] the difference between the limits of *** this coverage, and the amount paid *** by or for any person *** legally liable” for the injury; or the difference between the amount of the insured’s damages for bodily injury and that paid by the responsible party.

We therefore conclude that defendant is not entitled to a subrogation of the $20,000. Defendant will only have to extend $80,000 in underinsured motorist coverage. If plaintiff recovers anything from the uninsured driver, then defendant may be subrogated under the uninsured motorist coverage for the amount paid by the uninsured driver.

We affirm the order of the trial court finding that the plaintiff is entitled to $100,000 in uninsured motorist coverage under one policy and $80,000 in underinsured motorist coverage under the second policy.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANNY R. CORNETT, Defendant-Appellee.
    Second District
    No. 2 — 90—0450
    Opinion filed March 7, 1991.
    Dennis Schumacher, State’s Attorney, of Oregon (Daniel P. Merriman, Assistant State’s Attorney, and William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Stephen C. Pemberton and Milo W. Miller, both of Williams & McCarthy, P.C., of Oregon, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The State appeals from an order of the circuit court which dismissed an information charging the defendant, Danny Cornett, with the offense of driving while his license was revoked (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303(d)). The State raises one issue on appeal: whether the trial court erred in determining that section 6 — 303(d) of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303(d)) did not permit the State to use the violation of a local ordinance prohibiting driving while one’s license is revoked to enhance a violation of section 6 — 303(c) to a Class 4 felony under section 6 — 303(d) of the Vehicle Code. We will summarize those facts necessary to resolve the issue raised in this appeal.

The defendant was charged in the circuit court of Ogle County with the violation of section 6 — 303(d) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, par. 6 — 303(d)), because he was seen driving a vehicle on December 16, 1989, while his license was revoked. At the preliminary hearing, the State maintained that the defendant could be convicted under section 6 — 303(d) because he had a previous conviction of a local ordinance violation of driving while his license was revoked. The court took judicial notice of case No. 87 — TR—5530, a prosecution filed by the City of Rochelle charging the defendant -with the offense of driving while his license was revoked, in violation of the Rochelle Municipal Code (municipal code). The defendant was convicted of that offense on January 15,1988.

The court found that there was probable cause to believe that the defendant was driving while his license was revoked. The defendant then made an oral motion to dismiss the section 6 — 303(d) charge on the ground that he did not have a prior conviction under section 6— 303(c) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95 V2, par. 6— 303(c)). The court construed section 6 — 303(d) as excluding local ordinance violations from enhancing an offense under section 6 — 303(c) to a felony. The court concluded that the legislature could have specifically included local ordinance violations in section 6 — 303(d), but chose not to do so. Thus, the court found that there was no probable cause to believe that the defendant committed a felony, and it granted the defendant’s motion to dismiss the section 6 — 303(d) charge.

The State filed a motion to reconsider the dismissal. The State asserted that the local ordinance violation conviction did constitute a prior conviction for purposes of section 6 — 303(d) because the City of Rochelle incorporated the Vehicle Code into the municipal code, and, therefore, conviction of the local ordinance charge was the same as conviction of a State offense under section 6 — 303(c). The State attached to the motion a certificate from the Secretary of State which certified that an order of revocation was entered against the defendant on January 29, 1987, which was in effect on December 16, 1989. The defendant had been issued a restricted driving permit on July 31, 1989. The State also included a copy of the order of revocation, a copy of the restricted driving permit, a copy of the Rochelle complaint and the court record. In addition, the State attached a copy of the defendant’s driving abstract, which showed that, on January 12, 1987, the defendant was convicted of the offense of driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501), and his license was revoked on January 29, 1987. The abstract further showed that on January 1, 1988, defendant was convicted of violating section 6 — 303.

Finally, the State attached a copy of the Rochelle ordinance, which provided that in March 1983 Rochelle “adopted cerain [sic] provisions of the Illinois Vehicle Code by reference, and this ordinance is codified as Section 10.08.010 of the Rochelle Municipal Code.” The ordinance further stated that since the Vehicle Code had been amended since 1983, the city council amended section 10.08.010 of the municipal code as follows:

“The Illinois Vehicle Code, Snowmobile Registration and Safety Act, and Child Passenger Protection Act codified as Section 95%; [sic] of the Illinois Revised Statutes, is hereby incorporated by this reference, as though full [sic] set forth herein.” (Rochelle, Ill., Municipal Code §10.08.010 (1986).)

Section 10.08.020 of the municipal code was amended to provide:

“Any person violating the provision of the Illinois Vehicle Code, Snowmobile Registration and Safety Act, and Child Passenger Protection Act, adopted by Section 10.08.010 shall, upon conviction, be punished as follows:
a. For the offense of Driving while under the influence of alcohol, other drug, or combination thereof, 11 — 501; Every person convicted of violating this Section shall be guilty of a Class A misdemeanor with a sentence of a fine of up to $1,000 and up to 1 year imprisonment, *** for any second or subsequent conviction of violating this Section committed within 5 years of a previous violation of this Section shall be mandatorily sentenced to a minimum of 48 consecutive hours of imprisonment or assigned to a minimum of 10 days community service as may be determined by the Court. ***
b. If the Illinois Vehicle Code, Snowmobile Registration and Safety Act, and Child Passenger Protection Act has [sic] incorporated a mandatory penalty provision into a particular section then that penalty provision shall apply.
c. If the mandatory penalty provisions of (a) and (b) above do not apply, then the punishment provisions of Section 10.12.050 shall apply.” (Rochelle, Ill., Municipal Code §10.08.020 (1986).)

The ordinance was published on August 19,1986.

After a hearing, the court denied the State’s motion to reconsider. The State timely filed its appeal pursuant to Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)).

The State contends that the trial court erred in granting the defendant’s motion to dismiss based on the determination that section 6 — 303(d) did not permit the State to use the violation of a local ordinance prohibiting one from driving with a revoked license to enhance a violation of section 6 — 303(c) to a Class 4 felony under section 6— 303(d). Section 6 — 303(d) provides in relevant part:

“Any person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony if the original revocation or suspension was for a violation of Section 11 — 401 or 11 — 501 of this Code, or a similar provision of a local ordinance.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 303(d).)

The State argues that if the municipal code incorporates the Vehicle Code and encompasses provisions identical to section 11 — 501 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501), then the defendant had a prior revocation based on a “similar provision of a local ordinance.”

The defendant responds that the State’s focus is on the wrong part of section 6 — 303(d). According to the defendant, the language referring to “a similar provision of a local ordinance” is applicable only to the underlying basis of the original revocation. See Ill. Rev. Stat. 1989, ch. 951/2, par. 6-303(d).

The issue in this case turns on the interpretation of a statute. The proper interpretation of a statute must reflect the intent of the legislature. (People v. Parker (1988), 123 Ill. 2d 204, 209.) This intent may be discerned from the statutory language itself and the purpose of the legislation. (People v. Haywood (1987), 118 Ill. 2d 263, 271.) Where the intent of the legislature is clear from the unambiguous language used in the statute, it must be given effect as written, without resorting to any aids of construction. People v. Bryant (1989), 128 Ill. 2d 448, 455.

The State argues that the language of section 6 — 303(d) is not ambiguous and that it clearly allows a local ordinance conviction to suffice for purposes of enhancing a violation under section 6 — 303(c) to a felony. We agree with the State that the language of section 6 — 303(d) is unambiguous. We do not agree, however, with the State’s interpretation of that language.

Section 6 — 303 of the Vehicle Code provides for enhancement to a Class 4 felony when a person has been “convicted of a second or subsequent violation of this Section.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303(d).) It does not state that a violation of the section also can be enhanced by a prior violation of a similar local ordinance. Thus, the plain language of the statute supports the trial court’s conclusion that a local ordinance violation cannot be the basis of enhancement under section 6 — 303(d).

Even looking beyond the language of subsection (d) and considering section 6 — 303 as a whole, we conclude that the State’s position is without merit. A statute should be interpreted as a whole (People v. Jordan (1984), 103 Ill. 2d 192, 206), so that no part of it is rendered meaningless or superfluous (People v. Singleton (1984), 103 Ill. 2d 339, 345). An examination of section 6 — 303 reveals that the legislature specifically mentioned local ordinance violations by providing that when the local ordinance is similar to sections 11 — 401 or 11 — 501 of the Vehicle Code, the resulting suspension or revocation of an offender’s license is sufficient to support a section 6 — 303(c) conviction. (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303(d); see also Ill. Rev. Stat. 1989, ch. 95^2, pars. 6 — 303(c)(1), (c)(2).) Section 6 — 303(d) also specifically refers to local ordinances, but in the context of the underlying basis for the revocation. (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303(d).) The State’s interpretation would render superfluous the phrase “or a similar provision of a local ordinance” as used in subsections (c)(1), (c)(2) and (d) of section 6 — 303. See Ill. Rev. Stat. 1989, ch. 95^2, pars. 6— 303(c)(1), (c)(2), (d).

The State argues that interpreting the statute to mean what it says would nullify the purpose and objectives of section 6 — 303(d). While the judiciary has the authority to read language into a statute which has been omitted through legislative oversight, this authority must be used cautiously in criminal cases where statutes must be construed strictly in favor of the accused. (People v. Chandler (1989), 129 Ill. 2d 233, 253-54.) We do not believe it is appropriate to add words to section 6 — 303(d) because the legislature considered local ordinances when it drafted subsection (d) and could have chosen to include the phrase “or similar local ordinance” when it determined that the potential punishment should be increased for a person who has repeatedly violated section 6 — 303(c). (See Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303(d).) This does not appear to be a situation where the phrase was omitted through legislative oversight, since the legislature did use the phrase “or similar local ordinance” in subsections (c) and (d) to permit a conviction based on a revocation which was the result of the violation of local ordinances similar to sections 11 — 401 and 11 — 501 (Ill. Rev. Stat. 1989, ch. 95V2, pars. 11 — 401, 11 — 501). (See Ill. Rev. Stat. 1989, ch. 95V2, pars. 6 — 303(c), (d).) Thus, we conclude that the defendant’s conviction of violating a local ordinance prohibiting driving with a revoked license is not sufficient to enhance a section 6 — 303(c) charge to a Class 4 felony under section 6 — 303(d) of the Vehicle Code. We therefore affirm the dismissal of the 6 — 303(d) charge.

The judgment of the circuit court is affirmed.

Affirmed.

BOWMAN and McLAREN, JJ., concur.


text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, et al., Plaintiffs-Appellees, v. KERR-McGEE CHEMICAL CORPORATION, Defendant-Appellant.
    Second District
    No. 2 — 90—0577
    Opinion filed March 5, 1991.

      John C. Berghoff, Thomas P. Healy, and Mark R. Ter Molen, all of Mayer, Brown & Platt, of Chicago, and Herbert Estreicher and Peter J. Nickles, both of Covington & Burling, of Washington, D.C. (Richard A. Me-serve, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield, and Richard A. Verkler, of Robert F. Van Epps, Ltd., of Elmhurst (Robert J. Ruiz, Solicitor General, and Michelle D. Jordan, Douglas J. Rathe, William D. Seith, Joseph Williams, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for appellee People ex rel. Neil F. Hartigan.
    James E. Ryan, State’s Attorney, of Wheaton (Robert K. Kilander, George Sotos, and Carole Doris, Assistant State’s Attorneys, of counsel), for appellee People ex rel. James E. Ryan.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, the People of the State of Illinois (the State), sought and received a preliminary injunction to bar the defendant, Kerr-McGee Chemical Corporation (Kerr-McGee), from “construction of the waste contaminate facility proposed for the Kerr-McGee West Chicago site.” That injunction is to remain in effect, basically, until Kerr-McGee complies with State environmental “construction” permit requirements. Kerr-McGee brings this appeal from the preliminary injunction. We affirm.

The facts underlying this action are as follows. In 1967, Kerr-McGee acquired the West Chicago facility at issue. The facility extracted thorium and other materials from radioactive ores. The extraction process left sandy, earthlike by-product wastes that were deposited on the West Chicago property. The radioactive wastes are subject to regulation by the United States Nuclear Regulatory Commission (NRC), under the Federal Atomic Energy Act of 1954 (AEA) (42 U.S.C. §2011 et seq. (1982)).

Kerr-McGee operated the facility under an NRC license until 1973. In 1978, the NRC asked Kerr-McGee to submit a plan for decommissioning the facility. The planned disposition of the by-product waste on the West Chicago property underlies this case.

In 1979, Kerr-McGee proposed to the NRC that the by-product waste should be stored in a “disposal cell” (the cell) to be constructed on the site. The State and the City of West Chicago (the City) intervened in the proceedings, objecting that the on-site cell would be a health hazard. In 1983, the NRC issued its environmental statement, determining that construction of the West Chicago cell was the “preferred” decommissioning plan.

Following the State’s and the City’s subsequent challenges, the NRC convened an Atomic Safety and Licensing Board (the Licensing Board). The Licensing Board required the NRC to prepare a supplemental environmental statement. The supplemental statement, issued in 1989, also recommended construction of the West Chicago cell. According to Kerr-McGee’s engineering report, specifications for the cell provided for 1,000 watertight years. The supplemental environmental statement also concluded that the on-site encapsulation plan was the “preferred course of action,” and it recommended that construction should proceed.

After issuance of both the 1983 environmental statement and the 1989 supplemental statement, the State raised several challenges before the NRC, attacking the Kerr-McGee plan. The State’s contentions indicated particular concern for airborne and water contamination from the cell.

In November 1989, the Licensing Board granted partial summary judgment against the State’s challenges and ordered a hearing on the cell’s impact on groundwater. Following that full hearing, the Licensing Board granted Kerr-McGee summary judgment on all remaining issues. Thereafter, on February 23, 1990, the NRC issued Kerr-McGee a revised license to proceed with construction of the on-site disposal cell. After issuance of that license, the State and City requested a stay pending appeal. The NRC appeals board denied the stay, reasoning that Kerr-McGee’s planned activities for 1990 would be performed regardless of whether the cell was constructed.

On March 5, 1990, Kerr-McGee notified the City that it intended to commence with NRC-authorized activities at the site. The City issued a “stop work” order asserting that Kerr-McGee was beginning construction of the cell. It demanded that Kerr-McGee comply with the City code’s “Erosion and Sedimentation Regulations.” In Federal court, Kerr-McGee sought a temporary restraining order (TRO) and preliminary injunction against the City. That action eventually came before the Seventh Circuit Court of Appeals, which affirmed the district court’s denial of injunctive relief for Kerr-McGee.

THIS CASE

On March 14, 1990, the day before the scheduled initial hearing on Kerr-McGee’s Federal court motions for a TRO and preliminary injunction against the City, the State filed the two-count DuPage County complaint that underlies this case. It sought a TRO and preliminary injunction barring Kerr-McGee from constructing the cell. The State relied on Kerr-McGee’s failure to apply for two State environmental permits: an air “emissions” permit (35 Ill. Adm. Code §201.142 (1985)), and a “waste water discharge permit” (35 Ill. Adm. Code §309.202 (1985)).

The trial judge granted an ex parte TRO and, following hearing of Kerr-McGee’s motion to dismiss and the State’s motion for preliminary injunction, the court granted the preliminary injunction. Kerr-McGee brought this appeal. In summary, Kerr-McGee’s arguments on appeal are as follows: (1) that the injunction is both overly broad and premature as the State has not shown that Kerr-McGee has violated or is about to violate the Illinois Environmental Protection Act (the Act) at the West Chicago site; (2) that the permits demanded do not apply to the cell; (3) that any State permit requirements are preempted by Federal law; (4) that the State is collaterally estopped from raising the issues here; and (5) that the cell and its construction pose no public health or environmental threat.

Kerr-McGee’s first two arguments on appeal are so interrelated that we choose to consolidate them. The first issue we address, then, is whether the trial court’s injunction is both overly broad and premature because it bars activities beyond the scope of the State’s regulations. Kerr-McGee refers to evidence that it did not intend to begin construction of the cell in 1990. According to Kerr-McGee, the court-enjoined activities are to be undertaken regardless of whether a disposal cell is built on the site and they are not activities subject to construction permits that the State seeks to require.

In proceedings before the Licensing Board, Kerr-McGee had outlined its plan for 1990 activities at the site. Kerr-McGee proposed therein to remove trees and roots from the disposal site; it would shred small pieces and incinerate large ones. Some debris near concrete slabs on the site would be “repackaged or stockpiled as appropriate.” Also, Kerr-McGee would excavate contaminated soil lying outside the perimeter of the cell waste line and, perhaps, fill the excavated areas with clean materials; excavated materials would be stockpiled for eventual placement in the cell. Additionally, Kerr-McGee proposed to excavate sediment in three ponds as well as “soft-sediments” nearby. The excavated areas might be backfilled with clean materials, and the excavated material would be stockpiled on the site for eventual placement in the cell. Lastly, in parallel with those site activities, Kerr-McGee would perform detailed engineering work necessary to allow commencement of cell construction in the spring of 1991. The engineering project was estimated to cost between $250,000 and $500,000 during 1990; other activities proposed for 1990 were estimated to cost $450,000.

The Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1989, ch. llUA, par. 1001 et seq.) requires State “construction” permits prior to construction or installation of any facility that will cause, threaten, or be capable of causing or contributing to air or water pollution covered by Illinois pollution regulations. (Ill. Rev. Stat. 1989, ch. 1111/2, pars. 1039(a), 1009(a), (b), 1012(a), (b).) State air pollution regulations define “construction,” in relevant part, as “commencement of on-site fabrication, erection or installation of an emission source.” (35 Ill. Adm. Code §201.102 (1985).) Similarly, water pollution regulations, in relevant part, define “construction” as “commencement of on-site application, erection, or installation of *** a wastewater source.” 35 Ill. Adm. Code §301.265 (1985).

Under Illinois air pollution regulations, an “emission source” is any equipment or facility capable of emitting specified air contaminants to the atmosphere. (35 Ill. Adm. Code §201.102 (1985).) Under Illinois water pollution regulations, a “wastewater source” is defined as any equipment, facility or other source which directly or indirectly discharges any combination of treated or untreated sewage, industrial or other waste, or any admixed land runoff to Illinois waters. 35 Ill. Adm. Code §§301.425, 301.430 (1985).

In the trial court, the State presented testimony of Terry Sweitzer, the manager of permits of the air pollution division of the Illinois Environmental Protection Agency (the IEPA). Mr. Sweitzer testified that, in his opinion, the picking up and stockpiling of soil and sludge, and site grading and excavating to the bottom of the disposal cell, activities outlined in Kerr-McGee’s 1990 plans, constituted “construction” under air pollution regulations. Mr. Sweitzer further opined that construction activities at the site which emit particulate matter and lead, specified air contaminants under IEPA regulations, make the facility an “emissions source” subject to IEPA air pollution permit requirements.

Thomas McSwiggin, the manager of water pollution permits for the IEPA, testified that he had reviewed the supplemental environmental statement and Kerr-McGee’s disposal cell plans and determined that the Kerr-McGee disposal site at West Chicago would have an impact on the groundwaters of Illinois. McSwiggin further testified that he would consider the construction of the containment cell, or the containment cell itself, to be a “wastewater source” having an impact upon Illinois groundwaters and requiring a permit under IEPA water pollution regulations. When asked to consider the activities preparing a portion of the site for cell construction — excavating and placing materials in the cell, covering the cell with earth, and restoring the site with drainage control and vegetation — Mr. McSwiggin opined that the Kerr-McGee facility would have an impact upon Dlinois waters.

In reviewing the evidence, the trial court found that Kerr-McGee’s plans for 1990 were “clearly and logically the commencement of construction as defined by the Act and Regulations.” The court found that Kerr-McGee’s proposed conduct was, thus, to be enjoined for nonpreempted regulation by State permits.

Under section 42(e) of the Act, the State may seek an injunction to restrain violations of the Act. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1042(e).) The purpose of granting a preliminary injunction is to prevent a threatened wrong or further perpetration of injury until the merits of the case can be determined; it is granted in order to preserve the status quo of the parties. (Stasica v. Hannon (1979), 70 Ill. App. 3d 785, 787.) In the case of an injunction under section 42(e), the trial court has no discretion to refuse an injunction to enforce the terms of the Act. People v. Van Tran Electric Corp. (1987), 152 Ill. App. 3d 175, 184.

We find no basis for reversal in this case. The court heard testimony from IEPA officials that even Kerr-McGee’s preliminary activities would create air emissions of lead and particulates and be a source of wastewater that are subject to IEPA regulations for “construction” activity. Their comments were not merely premature expressions of concern directed at the remote possibility of some future activity at the site. (Cf. Illinois School Bus Co. v. South Suburban Safeway Lines, Inc. (1971), 132 Ill. App. 2d 833.) Further, the agency officials’ interpretation of IEPA regulations, addressing both the construction of the cell and the completed cell, were not shown to be plainly erroneous or fraught with inconsistency; consequently, it was entitled to great weight. Dean Foods Co. v. Illinois Pollution Control Board (1986), 143 Ill. App. 3d 322, 329.

We find that the State sufficiently alleged and showed Kerr-McGee’s impending violation of the Act’s requirement of construction permits under these circumstances. We find no reason to disturb the court’s conclusion that Kerr-McGee’s activities should be enjoined subject to IEPA construction permit requirements. The Act’s critical definitions of “construction,” “emission source” and “wastewater source” are each broadly written, and they logically comprise the site plans, both short and long term. The trial court’s findings of imminent “construction” of an “emission” and “wastewater” source threatening great harm and without adequate legal remedy for the State are sufficiently supported in the record. See People v. Van Tran Electric Corp. (1987), 152 Ill. App. 3d 175, 184.

Kerr-McGee’s second argument on appeal is that IEPA permit requirements, as applied to the cell, are preempted by Federal law. According to Kerr-McGee’s analysis, which was briefed prior to the NRC’s partial transfer of regulatory authority to the State (see 55 C.F.R. 214, at 46, 591 (Nov. 5, 1990)), State regulation relating to nonradiological matters can be applied to sites subject to Federal regulation of nuclear safety concerns only if State regulation does not significantly interfere with matters within the province of the NRC. According to Kerr-McGee, the State purports here to exercise regulatory control over precisely the same matters that were reviewed by the NRC, and the State’s claims concern matters that are subject to exclusive Federal control.

It is clearly recognized that the AEA gave the NRC exclusive authority to regulate the radiation hazards of nuclear processing byproducts. (42 U.S.C. §2011 et seq. (1988); Brown v. Kerr-McGee Chemical Corp. (7th Cir. 1985), 767 F.2d 1234, 1240-43.) State and local agencies, however, retain the right to regulate nonradiation hazards. (Illinois v. Kerr-McGee Chemical Corp. (7th Cir. 1982), 677 F.2d 571, 580-81.) On the other hand, State laws regulating nonradiation hazards are still preempted if an “actual conflict” exists between them and Federal law. See Brown, 767 F.2d at 1240-42.

Our analysis of whether preemption should defeat the State’s claims in this case is aided by the recent Seventh Circuit decision in Kerr-McGee Chemical Corp. v. City of West Chicago (7th Cir. 1990), 914 F.2d 820. In that appeal, the court analyzed whether the city’s demand for city code compliance by Kerr-McGee was preempted by the AEA. There, considering arguments identical or analogous to those presented in this case, the Seventh Circuit found no preemption.

According to the Seventh Circuit, because the city had not yet applied its city code, it had not even had the chance to do so in a manner intended to subvert the Federal licensing scheme; the city’s mere exercise of jurisdiction did not create an irreconcilable conflict with Federal law objectives or interfere with Kerr-McGee’s rights under its Federal license. (914 F.2d at 827.) The Seventh Circuit found, ultimately, that the city had the power to reject aspects of Kerr-McGee’s cell construction project if those aspects did not directly involve radiation hazards or hazards “inextricably intermixed” with radiation hazards, and if the city objections were not aimed merely at delaying or frustrating the Kerr-McGee project. 914 F.2d at 827.

Likewise, without reliance on the NRC’s recent transfer of its authority, in this case, we find that the State’s efforts to oversee activities at the site are not preempted. Here, as in the recent Seventh Circuit case, the State has only taken the preliminary action of asserting its right to require environmental permits that address nonradiological issues. The State has focused its efforts at lead and particulate air emissions as well as nonradiological groundwater contamination. Also, as in the recent Seventh Circuit case Kerr-McGee v. City of West Chicago, the State has not even had the chance to apply its environmental regulations in a manner intended to subvert the Federal licensing scheme.

Additionally, we observe that in an important factual sense, this case is unlike Brown v. Kerr-McGee Chemical Corp. (7th Cir. 1985), 767 F.2d 1234, 1240-43, upon which Kerr-McGee places great weight. There, the plaintiffs sought a State injunction to move the wastes at issue to another site. Although that injunction was based upon nonradiological regulation, it clearly would have prevented the NRC from choosing a radiological disposal site selected by NRC staff; it, thus, was preempted for conflict with Federal law. The injunction here, on the other hand, is like that sought by the city in Kerr-McGee v. City of West Chicago, apparently directed towards regulatory measures not clearly in conflict with NRC actions. We find no demonstration that the State’s mere requirement that Kerr-McGee apply for applicable nonradiological construction permits stands as an obstacle to accomplishment of the full Federal purposes at the West Chicago site.

Kerr-McGee’s third major argument on appeal is that the State is barred by the doctrine of collateral estoppel from relitigating issues relating to the disposal cell. According to Kerr-McGee, the NRC through its Licensing Board has carefully addressed and resolved the issues upon which the State’s arguments for requiring permits are based. According to Kerr-McGee, the NRC determination should be given preclusive effect.

A State court may be bound, under the principles of collateral estoppel, by the decision of a regulatory agency; however, among other factors necessarily preliminary to application of the collateral estoppel doctrine is that the previously determined issues are identical to the issues on which estoppel is sought. (Crot v. Byrne (N.D. Ill. 1986), 646 F. Supp. 1245, 1257.) Here, the trial court found, in relevant part, that Kerr-McGee had not established sufficient identity of issues. We agree.

On appeal, Kerr-McGee reiterates that the Licensing Board considered concerns about dust control and the possibility that constituents in the leachate from the cell would result in groundwater contamination. As we read the record, the previous NRC proceedings generally considered the factors of air and water discharges in concluding that construction of the West Chicago cell presented only minimal threats and was the best alternative for disposal of the radiological materials at issue. However, although the NRC’s consideration certainly was related to the concerns which the State seeks to address in its quest for construction permit compliance, we have not been shown that the particular concerns forwarded by the applicable Illinois air- and water-quality regulations were specifically decided by the prior proceedings. Because collateral estoppel requires identity of issues, we find that the doctrine is not applicable in this case.

Kerr-McGee’s final argument is that the cell and its construction pose no threat to public health or the environment so that the public interest will not be served in imposing the State permit requirements on the cell. Rather, according to Kerr-McGee, the public interest will best be served by implementing the plan approved by the NRC. The State responds briefly that at this stage of the litigation, whether the cell will have an actual impact on the environment is not determinative.

We agree with the State. As we have found, the State has sufficiently established that the cell and its construction constitute a “wastewater source” and an “emission source” under circumstances requiring a permit for the commencement of “construction” activity. We are aware of no authority or factual material in the record demonstrating a reason for us to disturb the court’s order that Kerr-McGee comply with the corresponding State permit requirements. If Kerr-McGee is correct that its plan poses no threat, properly followed State permit procedures will not long delay federally approved action.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

REINHARD, P.J., and INGLIS, J., concur.