author: JUSTICE BOWMAN

text:
    JEFFREY G. ZOERNER et al., Plaintiffs-Appellants, v. LEONORE IWAN, as Special Adm'x of the Estate of Rhonda M. Cashmore, Deceased, et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0851
    Opinion filed September 7, 1993.

      James Geis, of Chicago, for appellants.
    Glen E. Amundsen and D. Dean Mauro, both of Querrey & Harrow, Ltd., of Waukegan, and Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Jeffrey Zoerner, was injured when the van he was driving collided with a car driven by Rhonda Cashmore. Ms. Cashmore died in the accident. Zoerner subsequently brought this personal injury action against the administratrix of Ms. Cashmore’s estate. Plaintiff contends on appeal that (1) the trial court erred in barring certain testimony critical to his case, and (2) improprieties in defense counsel’s closing argument denied him a fair trial.

The collision occurred on Route 173 in Lake County at approximately 3:05 in the morning on Sunday, April 29, 1990. Plaintiff, who was alone, drove westbound in a Chevrolet van. Rhonda Cashmore, also alone, drove a Dodge Colt eastbound. The two vehicles collided head on in the westbound lane. There was no evidence of any evasive maneuvers by either driver. The plaintiff’s reconstruction expert and Lake County Sheriff’s Deputy Roger Barrette, who investigated the accident and testified for the defense, agreed the cars collided in the westbound lane while traveling in exactly opposite directions.

Both drivers were intoxicated as defined by statute. The parties stipulated that tests performed during the autopsy on the body of Ms. Cashmore revealed a blood-alcohol content of .108 and a urine alcohol content of .170 grams percent at the time of her death. They stipulated also to the blood-alcohol content of plaintiff’s blood at various times on the day of the collision. At 4:11 a.m. it was .247; at 5:40 a.m. it was .160; and at 1:44 p.m. it was .010.

Deputy Barrette, who arrived at the scene at approximately 3:30 a.m., reported that plaintiff, while still strapped in the driver’s seat, had told another deputy that he was not driving, that he had been in the backseat, and that someone else was driving. After being placed in an ambulance, plaintiff repeated to Barrette that he had not been driving at the time of the collision.

A couple of hours later, about 5:20 a.m., Barrette spoke with plaintiff in the X-ray room of the hospital. According to the deputy’s testimony, plaintiff was not agitated or upset, was much calmer than he had been at the scene of the accident, seemed to understand the questions being asked, neither asked to have questions repeated nor hesitated in his responses, and never lost consciousness. In the course of the interview plaintiff related his phone number and address. The address corresponded to the address on his driver’s license. When the deputy asked what happened, plaintiff said that he was in the wrong lane. When questioned further, plaintiff stated that he had been in the wrong lane for about five seconds when the accident happened and that he was going too fast.

During cross-examination Barrette added that when he spoke with him at the hospital plaintiff also said he was driving eastbound and that he had been out dancing at the Holiday Inn. Barrette conceded that plaintiff’s statement, that he was in the wrong lane when the accident happened, was not true. There was apparently no basis, either, for plaintiff’s claim to have been at the Holiday Inn. Barrette also indicated his belief that the van was not traveling over the speed limit and that speed was not an issue in the case.

Plaintiff, who was 26 years old, testified that between dinner on Saturday evening and around 1:30 Sunday morning he was out with a friend and drank approximately 12 to 14 beers. After the friend dropped him off at home around 2 a.m., he took the keys to his parents’ van and started driving to a place called All Stars. He had no recollection about the circumstances of the accident. Nor did he remember telling Deputy Barrette that he had been in the wrong lane and going too fast.

Plaintiff’s mother, a licensed practical nurse, testified that her son was thrashing around, looked terrified, and did not seem to understand anything at 7:30 a.m. when she arrived at the hospital. According to his father, plaintiff looked very uncomfortable, was in a lot of pain, thrashed about on the hospital cart, and was drifting in and out of consciousness when he saw him early that morning. On cross-examination plaintiff’s father said his son recognized him, and he had the impression plaintiff was coherent.

Dr. Michael Kaufman, an expert witness for the defense, testified based on an examination of the records and reports relating to the accident. He indicated that the level of alcohol concentration in plaintiff’s blood would produce a severe impairment in the ability to drive an automobile, including the ability to perceive how fast one was going and the ability to stay in one’s own lane. However, in the doctor’s opinion, plaintiff’s blood alcohol, in and of itself, did not render him incapable of giving appropriate answers to questions posed to him. A nurse’s notation in the hospital record stated that, at 4:30 a.m., plaintiff was alert and oriented. According to Dr. Kaufman, these terms indicated, essentially, that the patient’s brain was working properly. “Alertness” referred to the level of consciousness and “oriented” related to one’s ability to know the time, date, one’s current location, and other people. The doctor summed up that plaintiff’s ability to respond was not impaired prior to giving his statement to Barrette because there was no evidence of any head trauma or loss of consciousness, he scored the highest level for cognitive functioning on the Glascow coma scale, and his vital signs indicated he was stable, not in shock and having no problems with cerebral circulation. Plaintiff offered no expert testimony to rebut or otherwise contradict Dr. Kaufman’s testimony.

Prior to trial the plaintiff filed a motion in limine to bar the introduction of any opinions or conclusions by Deputy Barrette regarding the reliability of the statements made by plaintiff that he was in the wrong lane and going too fast. Plaintiff argued that since the deputy had no substantial medical training or other qualifications, his opinion as to the validity of plaintiff’s admission was without foundation. Defendant responded with a corresponding motion in limine to bar a statement made by Deputy Barrette at the coroner’s inquest into the death of Rhonda Cashmore. According to defendant’s motion, a juror at the inquest asked about the fact that plaintiff said he was traveling eastbound when the investigation showed he was traveling westbound. The deputy gave the following answer, under oath:

“He said — he told me that he was in the wrong lane for about five seconds and was going too fast and he got into the accident. That was about the extent of what he said. He was very delirious and disoriented.”

Defendant characterized the statement that plaintiff was delirious and disoriented as being in the nature of a medical conclusion by a lay witness. The court granted both parties’ motions but added that Barrette could testify factually as to his observations. Prior to his trial testimony Barrette was given a voir dire examination in which he indicated that he thought plaintiff was delirious and disoriented when he talked to him at the scene of the accident. In response to questions from the court, the deputy advised that he continued to have that impression when he spoke to plaintiff at the hospital.

Based on plaintiff’s statement that he had been driving in the wrong lane when the accident happened, defendant’s theory of the case was that Ms. Cashmore had maneuvered her car into the westbound lane in order to avert a collision with plaintiff in the eastbound lane. In response, plaintiff attacked the reliability of his statement about driving in the wrong lane. He urged that he was still intoxicated and had just been seriously injured when he made the statement. Focusing on the other inaccurate representations he made at approximately the same time, plaintiff took the position that he had not been capable of giving an accurate description about what happened and his statement, therefore, was not trustworthy and should be disregarded.

The jury returned a verdict in favor of the estate of the decedent and against the plaintiff. Following the entry of judgment, plaintiff filed a post-trial motion contending, among other things, that the court should have allowed into evidence Deputy Barrette’s inquest statement that plaintiff was delirious and disoriented when he said he was driving in the wrong lane. In denying the motion the trial court indicated that the testimony amounted to a conclusion of the plaintiff’s medical and mental state, without any foundation. The court also noted that if the ruling was error it was harmless because, among other things, the jury had heard testimony as to all the surrounding circumstances as well as the observations of other witnesses concerning plaintiff’s mental and medical state following the accident when the admission was made. This appeal followed.

Plaintiff contends, as he did in his post-trial motion, that the trial court erred when it barred Deputy Barrette’s sworn inquest statement that plaintiff was delirious and disoriented. The admissibility of evidence is a matter for the sound discretion of the trial court whose rulings, once made, will be overturned only when they clearly reflect an abuse of that discretion. (Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 577; Baird v. Adeli (1991), 214 Ill. App. 3d 47, 68.) The record reflects that the trial court excluded Barrette’s statement on the ground that it would have constituted medical testimony without a proper foundation. It is not disputed that the deputy did not have a medical background or medical training. Plaintiff maintains, however, that Barrette’s statement was admissible as nonexpert opinion testimony.

A lay witness may express an opinion based on his observations when it is difficult or impossible for him to convey to the jury the totality of the conditions perceived and the opinion is one that people in general are capable of and accustomed to making and understanding. (People v. Ricketts (1982), 109 Ill. App. 3d 992, 998; People v. Stokes (1981), 95 Ill. App. 3d 62, 66.) To be admissible, nonexpert opinion testimony must be of assistance to the trier of fact, i.e., it must be (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or to the determination of a fact in issue. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 221-22, citing Fed. R. Evid. 701; Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 131-32, citing Fed. R. Evid. 701.) Here, the record leaves no doubt that Deputy Barrette had ample opportunity to observe both plaintiff’s physical condition and his mental status. Further, we believe that people in general share a common understanding of what is meant by “delirious” and “disoriented” and are accustomed to forming such opinions themselves.

We recognize that Dr. Kaufman gave expert testimony relative to what is meant by “disoriented.” However, his definition is not in conflict with what we believe to be the average lay person’s impression of one who is “disoriented.” According to Dr. Kaufman, “alert and oriented” indicates the patient’s brain is working properly. “Oriented” relates to the ability to know the time, date, location, and other people. We think most lay persons, coming upon one who does not know other people, or the time and date, or where he or she is, would form the opinion that the other person was disoriented. We do not perceive this as a matter so beyond common experience that only persons of skill or expertise are capable of forming a correct judgment. (See People v. Canity (1981), 100 Ill. App. 3d 135, 151.) Rather, we find these characterizations similar in nature to a number of others which have been found to be proper subjects of lay opinion testimony.

Upon the establishment of a proper foundation, nonexperts have been allowed to state opinions on elements of testamentary capacity (In re Estate of Veronico (1979), 78 Ill. App. 3d 379, 384); intoxication (Doria v. Costello (1974), 22 Ill. App. 3d 505, 510); excitement (Dimick v. Downs (1876), 82 Ill. 570, 572); nervousness and upset state (People v. Hauke (1929), 335 Ill. 217, 231); fear (Law v. Central Illinois Public Service Co. (1980), 86 Ill. App. 3d 701, 706); unconsciousness after an accident (Chicago City Ry. Co. v. Van Vleck (1892), 143 Ill. 480, 485); and sanity (People v. Chatman (1986), 145 Ill. App. 3d 648, 659).

It is true that deliriousness and disorientation pertain primarily to a person’s mental status and mental processes. This was also true of the emotion of fear in Law v. Central Illinois Public Service Co. (1980), 86 Ill. App. 3d 701, 706. However, like the Law court, we observe that such mental states manifest themselves physically, and it is only the collective effect of the physical signs that lead to the conclusion a person is delirious or disoriented. As the Law court pointed out, “the inefficiency of the process of eyewitness testimony, compounded by the inaccuracies of the English language, necessitates the admission of this type of testimony.” Law, 86 Ill. App. 3d at 706.

Finally, Barrette’s statement would have helped the jury to determine whether plaintiff’s statement about driving in the wrong lane was reliable, or the product of a disturbed mind, thus providing a basis for deciding who was at fault in the accident. We held that Barrette’s statement that plaintiff was delirious and disoriented was admissible as non-expert opinion testimony.

While we conclude that Deputy Barrette could properly have given an opinion, and thus provided substantive evidence that plaintiff was delirious and disoriented, we note that any such testimony was barred by a motion in limine. In light of the testimony actually given by the deputy in defendant’s case, it is difficult to see how plaintiff would have gotten the inquest statement into evidence in the form of an opinion by Barrette. In contrast, it is obvious that Barrette’s inquest statement would have been impeaching of his trial testimony if plaintiff had been permitted to use it. As we see it, even if the trial court had been correct in excluding Barrette’s statement as an improper nonexpert opinion, it was error to prohibit its use for impeachment purposes.

A witness may be impeached by showing that on a prior occasion the witness made statements inconsistent with his or her trial testimony on material matters. (Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 268-69; Baumgartner v. Ziessow (1988), 169 Ill. App. 3d 647, 659.) To be considered inconsistent and thus impeaching, a prior statement need not be directly contradictory to the witness’ later testimony; the test is whether the statement has a reasonable tendency to discredit the witness’ trial testimony on a material matter. (In re Lane (1989), 127 Ill. 2d 90, 104-05; Kritzen v. Flender Corp. (1992), 226 Ill. App. 3d 541, 552.) Here, Barrette stated at the inquest that plaintiff was delirious and disoriented when he said he had been driving in the wrong lane and driving too fast. Barrette made this observation under oath. At trial, also under oath, Barrette testified that when plaintiff made the implicating statements he was calmer than he had been at the accident scene, never lost consciousness, seemed to understand the questions asked, did not ask to have questions repeated, and did not hesitate in his responses. We opine that Barrette’s inquest characterization of plaintiff as delirious and disoriented would have had, at the very least, a reasonable tendency to discredit the word picture, painted by Barrette at trial, of the collected and aware young man he spoke with at the hospital. Moreover, the inconsistencies certainly concerned a material matter. In the face of the undisputed fact that Ms. Cashmere’s auto hit plaintiff’s van head on in plaintiff’s lane, defendant’s entire theory of the case revolved around plaintiff’s utterance that he had been driving in the wrong lane. Hence, it mattered a great deal whether plaintiff’s statement was worthy of being believed. It follows that plaintiff’s condition or mental status when he made the statement was material to the determination of his credibility. Barrette’s prior inconsistent statement should have been admitted for purposes of impeachment.

The trial court specifically stated that, to the extent its ruling on Barrette’s inquest statement was error, that error was harmless. Plaintiff correctly points out that, according to the remarks in its order, the court believed Barrette’s conclusion that plaintiff was delirious and disoriented pertained only to the scene of the accident and not to the time in the hospital when plaintiff said he was driving in the wrong lane. Thus, the court found basically that the deputy’s conclusion was irrelevant. The court’s belief on this matter was mistaken. The report of his voir dire examination reveals that Barrette admitted, in response to the court’s own question, that he still thought plaintiff was delirious and disoriented when he spoke to him at the hospital. Consequently, Barrette’s testimony was not irrelevant on the basis of the time the deputy observed plaintiff’s mental state vis-a-vis the time plaintiff gave his inculpatory response to the deputy’s questions.

The trial court also found any error to be harmless because the jury had heard testimony concerning all the circumstances of the accident and its aftermath and the observations of other witnesses as to plaintiff’s mental and medical state around the time of the admission. Our review of the record leads to a different conclusion. There is no doubt that plaintiff was in the proper lane when the accident happened. As we pointed out above, defendant’s entire case turned on plaintiff’s statement that he had been driving in the wrong lane and going too fast. Solely from that evidence defendant argued that Ms. Cashmore had moved into the westbound lane because she was trying to avoid a collision with plaintiff. Hence, the reliability of plaintiff’s statement became a critical issue.

Evidence was presented on both sides of the question whether, as a result of his condition, plaintiff’s statement was trustworthy. The nurse’s remarks, charted less than an hour before plaintiff made the admission; Dr. Kaufman’s opinion, as well as the bases for that opinion; and Deputy Barrette’s direct testimony all tended to suggest plaintiff was calm, alert, and able to give accurate, reliable answers when Barrette spoke with him at the hospital. On the other hand, it is undisputed that plaintiff was seriously injured at approximately 3:05 a.m. and showed a blood-alcohol content still well above the legal limit at 5:40 a.m., shortly after he made the admission. The gist of his parents’ testimony was that, at 7:30 that morning, plaintiff was in a great deal of pain and discomfort, agitated, and unable to understand what was happening. Most telling of all, plaintiff’s admission was that he was driving in the wrong lane and going too fast when the accident happened. However, Deputy Barrette’s investigation showed, and it is not contested, that plaintiff was not in the wrong lane upon impact. Also, Barrette was of the opinion that speed was not an issue. Similarly, Deputy Barrette testified on cross-examination that, during the same time period plaintiff said he was driving in the wrong lane, he also said he was traveling eastbound and had been out dancing at the Holiday Inn. Neither statement was true, although plaintiff had also made the statement about traveling eastbound, along with several other incorrect statements, at the scene of the accident.

The evidence as to the pivotal issue of plaintiff’s condition and his ability to relate correctly what happened was closely balanced. Deputy Barrette’s direct testimony took on substantial significance since he was the only person present when plaintiff made the relevant admission. Under these circumstances we cannot say the improper exclusion of Barrette’s inquest statement was not prejudicial to plaintiff. At trial Barrette testified only that plaintiff was calm and responsive. Had Barrette given a conflicting opinion, or had it been revealed that at a time prior to trial Barrette had testified, under oath, that plaintiff was delirious and disoriented when he made the admission, the jury may very well have given less weight to the deputy’s trial testimony. In a close case, such a shift could cause a change in the outcome.

To summarize, testimony regarding Barrette’s characterization of plaintiff as delirious and disoriented should have been admitted, if not as nonexpert opinion testimony, then certainly for impeachment purposes. The trial court’s decision to the contrary constituted an abuse of discretion which cannot be minimized as harmless error. Coupled with the errors discussed below, the improper exclusion of Barrette’s statement constitutes grounds for reversal.

We turn now to plaintiff’s contention that he was denied a fair trial as a result of improper closing argument. During his argument defense counsel explained to the jurors that if a plaintiff was found 50% or more at fault, he would recover nothing. Counsel then added the following:

“Now, that’s the reason, ladies and gentlemen, that I’m asking you to return a verdict in favor of Rhonda Cashmore in this case. I mean let’s face it and get right to the heart of it. Drinking and driving is not right. It was wrong for Rhonda Cashmore and it was wrong for Mr. Zoemer and the difference is Mr. Zoemer is in here asking you for hundreds of thousands of dollars because of it. That’s wrong. And we should send a message that it’s wrong and I hope you’ll do that with your verdict.”

Counsel concluded his argument by saying:

“And I hope you will feel that even though if he goes away with nothing, that’s not the wrong thing to do because he can get on with his life and put this behind him and it will not reward somebody for drinking and driving on the county highways and getting hundreds of thousands of dollars. That’s really what this comes down to.”

Plaintiff asserts that it was error for defense counsel to urge the jury to reach a certain verdict because it would send a message against drunk driving and not reward plaintiff for antisocial behavior. Defendant responds that the issue is waived or, if not waived, that the statements were not so prejudicial as to deny plaintiff a fair trial.

Plaintiff did not object to anything defense counsel said during closing argument. Nor did he challenge closing argument in his post-trial motion. Generally, the failure to object to alleged errors in an opponent’s closing argument is considered a waiver of objection. (Kenny Construction Co. v. Hinsdale Sanitary District (1982), 111 Ill. App. 3d 690, 700.) The failure to include an objection in a post-trial motion may also result in waiver. (Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 958; Rexroat v. Devine (1987), 157 Ill. App. 3d 284, 288.) However, the waiver rule is a limitation on the parties to an appeal, not on the reviewing court (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279), and may be ignored in order to achieve a just result (Riley v. Fair & Co., Realtors (1986), 150 Ill. App. 3d 597, 600). Accordingly, despite the absence of objection, a reviewing court may consider claims of improper statements during closing argument to the extent such statements prevented a fair trial. (Ryan v. Katz (1992), 234 Ill. App. 3d 536, 542; Kenny Construction, 111 Ill. App. 3d 690.) We find that the statements set forth above were sufficiently prejudicial to plaintiff to warrant review, even though plaintiff did not object to them.

In Hansel v. Chicago Transit Authority (1971), 132 Ill. App. 2d 402, the court held that remarks essentially very similar to some of those made in this case prevented plaintiff from receiving a fair trial. Counsel in Hansel stated:

“ ‘Counsel asked you to give him $62,000 and in the same breath he is asking you to put a premium on a man who gets drunk and intoxicated and he asked you now to reward him.’ ” (Hansel, 132 Ill. App. 2d at 406.)

Regarding this remark the court first pointed out that the issue in the case was whether the evidence established that plaintiff was intoxicated at the time of the accident and, if so, whether such intoxication proximately caused his injuries. The court then reasoned as follows:

“[The jury’s] determination of these factual issues should not in any way have been related to whether a verdict for plaintiff would place a ‘premium’ on drunkenness or constitute a ‘reward’ for getting drunk. The province of the jury is the resolution of factual issues in the narrow context of the case before them, not the rendering of moral or social judgments in verdict form. The purpose of argument by counsel is to assist the jury fairly, deliberately and impartially to arrive at the truth of the facts submitted to them for their decisions. [Citation.] It is error for counsel to indulge in assertions which appeal to the passions of the jury and have no bearing or relation to the case whatsoever.”

The court concluded that counsel’s comments were sufficiently prejudicial to have prevented a fair trial.

We find Hansel highly persuasive that plaintiff here did not have a fair trial, either. After emphasizing that drinking and driving is wrong, defense counsel told the jury that plaintiff “is in here asking you for hundreds of thousands of dollars because of it.” Counsel exhorted the jurors to “send a message that it is wrong” and even added, “I hope you’ll do that with your verdict.” In a manner strikingly similar to counsel in Hansel, defense counsel concluded his argument by saying that denying plaintiff recovery “will not reward somebody for drinking and driving on the county highways” and get them “hundreds of thousands of dollars.”

Besides damages, the jury in this case was charged only with determining the proximate cause of the accident. Suggestions of being rewarded for driving drunk or sending messages that drunk driving is wrong had no place in the jury’s deliberations about a factual issue, and counsel was ill advised to insinuate that they did. Counsel clearly appealed to the jurors’ sense of moral outrage with an argument that had no bearing on the case — a tactic hardly directed at helping the jury impartially to resolve the fact questions presented to it. Like the Hansel court we conclude that, in his closing argument, defense counsel “exceeded the bounds of proper debate and prevented plaintiff from receiving a fair trial.” Hansel, 132 Ill. App. 2d at 407.

With regard to closing argument plaintiff also contends that defense counsel misstated the law by advising the jury that plaintiff’s intoxication alone was a reason for returning a verdict against him. Plaintiff cites remarks in which counsel drew the jury’s attention to the difference in the blood-alcohol content of plaintiff and Ms. Cashmore. In essence counsel told the jurors that plaintiff was trying to persuade them that, despite his higher level of intoxication, it was not he who caused the accident. Counsel added the following:

“And just by that disparity alone, if you knew nothing else, if you went home to tell somebody after this case is over with that was the facts, I mean everyone would say, well, then it’s — who is more likely to have adjusted to who? Who was trying to avoid who given that fact? That alone is basis for him to lose this lawsuit.”

We find no merit in plaintiff’s claim that the jury was advised that his intoxication alone was a sufficient basis for finding against him. Plaintiff and Ms. Cashmore were the only persons involved in the accident itself. Ms. Cashmore was dead, and plaintiff did not remember what happened. Nor did plaintiff remember telling Deputy Barrette that he had been driving in the wrong lane. There were no other witnesses to tell what had happened. Consequently, using only circumstantial evidence, each of the parties theorized that the other had crossed the center line, thereby causing the accident. As we understand his remarks, all counsel was trying to say to the jury was that, in light of plaintiff’s significantly greater intoxication, defendant’s story was the more believable. We do not think counsel attempted to persuade the jury that, merely because he was intoxicated, plaintiff was liable. Counsel must be granted considerable latitude in closing argument. (Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 577.) We find no error in this particular argument.

Although the closing remarks we just discussed were not prejudicial to plaintiff, counsel's other argument, urging the jury to make a social or moral statement, certainly was. Plaintiff was also severely prejudiced when he was precluded from telling the jury that, at a time other than trial, Deputy Barrette had described plaintiff as delirious and disoriented when he made his critical admission. Collectively, these errors were sufficient to deny plaintiff a fair trial.

For the reasons set forth, we reverse the judgment of the circuit court of Lake County and remand this matter for a new trial.

Reversed and remanded.

QUETSCH and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    BROOKFIELD-NORTH RIVERSIDE WATER COMMISSION, Plaintiff-Appellant, v. ABBOTT CONTRACTORS, INC., et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1 — 92—1802, 1—92—2019 cons.
    Opinion filed August 2, 1993.
    Rehearing denied September 7, 1993.
    Chapman & Cutler, of Chicago (James P. O’Brien and Robert M. Baratta, Jr., of counsel), for appellant.
    O’Reilly, Cunningham, Norton & Mancini, of Wheaton (Thomas R. Weiler, of counsel), for appellee Abbott Contractors, Inc.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal stems from a dispute involving allegedly defective work performed during a public works project entitled “1987 Water Supply Improvements Projects A — Transmission Mains and Cross Connections” (project). In its complaint, plaintiff, Brookfield-North Riverside Water Commission (the Commission), alleged that defendant, Abbott Contractors, Inc. (Abbott), was responsible for the defective work. Ultimately, the circuit court granted Abbott partial summary judgment and ordered the parties to arbitration. The court also denied the Commission’s motion for summary judgment. The Commission now challenges the propriety of those orders.

We reverse and remand.

On June 30, 1987, the Commission entered into a contract with Abbott, in which Abbott agreed to perform all the work and improvements for the project. The contract incorporated a separate document entitled “Specifications and Bidding Documents for Phase A — Transmission Mains and Cross Connection.” These specifications were prepared by the project engineer, Edwin Hancock Engineering Company (the engineer). The purpose of the project was to make a supplemental source of water available for the residents within the Commission’s jurisdiction. Abbott completed the work on June 19, 1988, and received its final payment on August 13,1988.

In February 1989, the Commission took water samples from the pipes after receiving complaints of oily, foul-smelling water from residents. These samples indicated that contaminants were in the water line, rendering it unsuitable. Three months later, the Commission had a “butterfly valve” in the line opened, and oil and other contaminants were found there as well. Chemical tests performed in June confirmed the presence of benzene in the water. On June 14, 1989, the Commission notified Abbott that its work was “defective” and “unacceptable” and, citing the contract’s one-year warranty period, asked for compensation with regard to the cost of replacing and cleaning the unsuitable piping. Abbott responded with a denial that its work was defective. On July 14, 1989, the Commission submitted the dispute to the engineer. Upon notification of the submission, Abbott questioned the authority of the engineer to render a decision on completed work.

On August 11, 1989, the Commission wrote to the engineer requesting “additional time in which to submit *** data to and including October 14, 1989.” On August 14, 1989, counsel for Abbott wrote to the engineer and again questioned the engineer’s authority for undertaking review of the “dispute.” Abbott asked that this “threshold issue” be resolved prior to any other determination and reserved the right to submit data if the dispute resolution was to proceed.

Apparently, the engineer’s decision was rendered prior to the receipt of either Abbott’s or the Commission’s letters because, on August 11, 1989, the engineer, in a letter addressed to both parties, stated that the “resolution on our part of this dispute would be in accordance with Paragraphs 9.11 and 9.12” of the contract. After making several findings as to the cause of the contamination, the engineer concluded that Abbott should bear the “full responsibility” for the costs of removing the contaminants.

Four days later, the engineer notified both parties that it had received their requests for additional time after the completion of the dispute “resolution.” In light of that fact, the engineer recommended that both the Commission and Abbott “take sufficient time to review the findings we have presented in our resolution dated August 11, 1989, after which a conference can be scheduled with both parties and our office to discuss the items in dispute in further detail. At that time, if it can be shown, by either party, that there is additional qualified data available, or becoming available, to add support to its position and to justify a review of our resolution, a time extension can be granted to allow for this date [sic] to be submitted.” Neither party availed itself of the opportunity to submit additional data to the engineer.

On February 1, 1990, the Commission filed its eight-count complaint, sounding in negligence and breach of contract, against Abbott. Relevant here is count I, which alleged that Abbott had failed to seek timely review of the engineer’s decision, and as a result, was liable for the defective work as found by the engineer in its August 11, 1989, resolution of the dispute. The Commission sought court enforcement of the engineer’s decision. On May 20, 1991, the Commission filed a motion for partial summary judgment on count I of the complaint. The affidavit of William F. Bucha, the president of the engineering firm affiliated with the project, was submitted to the court in support of the motion. In it, Bucha swore that the dispute between the Commission and Abbott was submitted to the engineer on July 14, 1989, and the engineer’s decision was rendered on August 11, 1989. According to Bucha, the letter of August 11, 1989, “is the final, written decision of Hancock [the engineer] concerning the dispute between Abbott and the Commission.”

On June 14, 1991, Abbott demanded a review of the engineer’s decision by the American Arbitration Association (AAA). In its demand, Abbott sought a determination of whether the engineer was the proper party to resolve the dispute. Abbott later amended the demand to include determinations of all the claims raised by the Commission in its litigation. Meanwhile, in the circuit court, Abbott filed a motion to compel arbitration and stay proceedings in the case pending the resolution of the arbitration. Abbott also moved for cross partial summary judgment on count I of the complaint, contending that the engineer’s decision of August 11, 1989, was neither valid nor final.

Following arguments on the motions, the circuit court granted Abbott’s motion for partial summary judgment as to count I of the complaint, granted Abbott’s motion to compel arbitration, and denied the Commission’s motion for partial summary judgment as to count I of the complaint. In his ruling, the trial judge stated that he could not “accept the letter [of August 11, 1989] as final” because the engineer “didn’t really grant Abbott its day in court.” The Commission filed two timely notices of appeal. The first chailenges that portion of the circuit court’s order which compelled arbitration and stayed proceedings pending the resolution of the arbitration. The second notice of appeal challenges that portion of the circuit court’s order which denied the Commission’s motion for partial summary judgment as to count I and granted Abbott’s cross-motion for summary judgment as to count I. This court granted the Commission’s motion to consolidate the appeals on July 7,1992.

The Commission maintains that the circuit court erred in denying its motion for partial summary judgment. It asserts that the dispute between the parties properly was submitted to the engineer under the contract, that Abbott should have appealed the engineer’s decision to the AAA under the contract’s 30-day provision, and that because Abbott did not do so, it is too late for the matter to be sent to arbitration. Abbott responds that the engineer did not have the authority to render the decision. Moreover, assuming it did have authority, Abbott insists that the engineer’s letter is not a resolution of the dispute because the engineer subsequently allowed both parties to submit additional data. Abbott further contends that it timely sought arbitration.

Our analysis must begin with the determination of what was actually “disputed” by the parties. By letter dated June 14, 1989, the Commission charged Abbott with providing “defective,” “faulty,” and “deficient” work. The letter contained a detailed description of the work the Commission considered defective and cited the specifications of the contract in reference to the defective work. The letter concluded by requesting Abbott to bear the cost of the repair and replacement. On June 23, 1989, Abbott responded to the Commission’s letter, denying that its work was “defective in any way.” Had Abbott accepted the Commission’s findings and agreed to bear the costs of repair, none of the ensuing events would have occurred. In view of these facts, it would appear that, as of June 23, 1989, the parties “disputed” whether the work was performed in a defective manner.

Having identified the dispute as one concerning defective work, this court must ascertain how the parties intended such disputes to be resolved. In so doing, we must look to the parties’ contract, because the rights of the parties are governed by its terms. Kohenn v. Plantation Baking Co. (1975), 32 Ill. App. 3d 231, 336 N.E.2d 491.

The contract here provides that the “Contractor [Abbott] warrants and guarantees to OWNER and ENGINEER that all Work will be in accordance with the Contract Documents and will not be defective. All defective Work, whether or not in place, may be rejected.” (Emphasis in original.) The contract also provides for a “one year correction period” after completion in which Abbott was to repair, replace, or bear the cost of replacement for any work “found to be defective." (Emphasis in original.) It should also be noted that the contract specifically states that the making and acceptance of final payment did not constitute a waiver of claims arising “from defective work *** [or] from failure to comply with the contract documents.” (Emphasis in original.) Moreover, final payment to Abbott did not constitute “an acceptance of Work not in accordance with Contract Documents” and did not release Abbott from the obligation to perform the work in accordance with the contract documents. The contract identifies the engineer as the “initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the work thereunder.” To that end, the engineer was charged with the authority to disapprove or reject work which the engineer believed to be defective “whether or not the Work is fabricated, installed or completed.”

Given this language and the fact that the dispute fell within the one-year warranty provision, the engineer, under the contract, had the authority to make an “initial” determination concerning the Commission’s claims that Abbott’s work was “defective” and failed to comply with the contract’s documents. Accordingly, Abbott’s arguments concerning the engineer’s lack of authority must fail because the contract specifically provides the engineer with such authority with regard to work acceptability and without regard to the completion of the project.

The contract also sets forth the method by which the parties were to submit such “disputes” to the engineer for decision. Under section 9.11, the claimant must make its request for a “formal decision” “in writing,” after which the engineer must “render” its decision “in writing within a reasonable time.” In addition, the claimant is required to give “written notice” of its claim to the other party no later than 30 days after the occurrence of the event “giving rise thereto.” The contract provides that written supporting data is to be submitted to the engineer and the “other party” within 60 days after such occurrence unless the engineer allows for an additional time period. Section 9.12 of the contract makes the “rendering of a decision” by the engineer, pursuant to section 9.11, a “condition precedent to any exercise by OWNER or CONTRACTOR of such rights or remedies as either may otherwise have under the Contract.”

As noted previously, Abbott’s denial of defective work on June 23, 1989, was the “occurrence” which gave rise to the claim at issue here. On July 14, 1989, the Commission submitted its written claim to the engineer, well within the 30-day period required under the contract. The Commission also provided Abbott with written notice of the claim within the requisite time period. The record indicates that neither party availed itself of the 60-day period within which data was to be submitted. Under the contract, August 23, 1989, would have been the last day on which data could be submitted. On August 11, 1989, following a telephone conversation with Abbott’s counsel, counsel for the Commission sent the engineer a letter requesting additional time to and including October 14, 1989, in which to submit additional data. Specifically, the letter stated that “unless the undersigned learns from you otherwise by 5 p.m., Monday August 14, 1989, we will assume that you will allow the extension of time as requested herein.” On August 14, 1989, Abbott wrote to the engineer, acknowledging the Commission’s extension request of August 11, 1989. Once again, Abbott questioned the engineer’s authority to hear the matter and requested that that issue be resolved initially. The letter went on to “reserve the right to submit additional data relevant to the proceeding.”

The engineer rendered a decision on the dispute on August 11, 1989, apparently unaware of the parties’ concerns. In his letter, the engineer stated that “this resolution on our part of this dispute would be in accordance with Paragraphs 9.11 and 9.12” of the contract and further stated that “[t]he presence of materials *** in the transmission main and the flooding of the pipe trench *** are factors supporting our conclusion that the high degrees of concentration of certain volatile compounds found in the water *** are the result of these compounds entering the transmission main during the time of its installation.” (Emphasis added.) The engineer’s letter stated that it was “our finding” that Abbott bear the full responsibility for having the pipes cleaned. (Emphasis added.)

On August 15, 1989, the engineer, apparently in response to the parties’ letters, recommended to both parties that they “take sufficient time to review the findings we have presented in our resolution dated August 11, 1989 after which a conference can be scheduled with both parties and our office to discuss the items in dispute in further detail. At that time, if it can be shown, by either party, that there is additional qualified data available to add support to its position and to justify a review of our resolution, a time extension can be granted.” (Emphasis added.) Neither party took advantage of the engineer’s invitation. Moreover, no party submitted any data prior to the October 14, 1989, extension date mentioned in the Commission’s letter to the engineer prior to the August 11 resolution.

Clearly, the wording of the engineer’s letter of August 11, 1989, as underscored above, indicates the engineer considered its findings to be a “decision” “rendered” on the dispute in accordance with sections 9.11 and 9.12 of the contract. This is manifested by what was not stated in the engineer’s letter of August 15, 1989. In that correspondence, the engineer did not withdraw its August 11, 1989, decision, but, rather, offered both parties the possibility of a “review” of the decision if either side could show that additional data justified such action. Neither party availed itself of this opportunity. With the favorable August 11 decision in hand, the Commission’s inaction at this part of the proceedings is hardly surprising. Abbott’s inaction, however, is inexplicable as the August 11 decision was unfavorable to it. Not only did that decision resolve the dispute regarding defective work against Abbott, but it also resolved the issue of the engineer’s authority against Abbott. It should be noted that Abbott has continued to question that authority even in this court. Nevertheless, Abbott did not return to the engineer. This alone, however, is not fatal to Abbott’s claims because Abbott did have one other avenue of recourse available under the terms of the contract.

Section 16.1 of the contract provides that all claims, disputes and other matters in question between the parties were to' be decided by the AAA, subject to the limitations contained within article 16. The only such limitation relevant to this litigation is the following: “No demand for arbitration of any such claim, dispute or other matter will be made later than thirty days after the date on which the ENGINEER has rendered a written decision in respect thereof in accordance with paragraph 9.11. and the failure to demand arbitration within said thirty day period shall result in ENGINEER’S decision being final and binding upon the parties.” (Emphasis added.)

No demand for arbitration was made by Abbott until June 14, 1991, almost two years after the engineer’s decision was rendered. Although Abbott contends that the engineer’s August 15 letter indicates that the dispute was still unresolved, the facts in the record do not support that argument. Abbott’s actions following the receipt of the letter do not conform with those of a party seeking to present additional data. To this date, it does not appear that Abbott has made any attempt to submit the additional data it maintained it had during the summer of 1989. We note that in its correspondence to the engineer, Abbott’s counsel asked the engineer to resolve the “threshold issue” of the engineer’s authority prior to resolving the dispute regarding the defective work: “If the binding resolution of this issue is that your firm is to proceed with the dispute resolution *** then we would reserve the right to submit additional data relevant to the proceeding.” The engineer allowed for this in its letter of August 15, which offered the possibility of a review if additional data were available. Abbott, however, did nothing. Even more puzzling is Abbott’s failure to challenge the engineer’s authority to render the decision even though Abbott had a right to do so under the contract’s terms. Under the plain language of the contract, as highlighted above, it was Abbott’s failure to demand arbitration within a timely fashion that rendered the engineer’s August 11 decision final and binding.

The Commission argues that Abbott’s failure to make a timely demand for arbitration following the engineer’s decision precludes arbitration.

Both parties correctly maintain that arbitration is a favored method of settling disputes. The object of arbitration is to achieve a final disposition of disputes in an easier, more expeditious, and less expensive manner than by litigation. (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 392 N.E.2d 198.) Nevertheless, our courts have recognized that a contractual right to arbitration can be waived like any other contractual right. (Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 425 N.E.2d 439; Gateway Drywall & Decorating, Inc. v. Village Construction Co. (1979), 76 Ill. App. 3d 812, 395 N.E.2d 613.) Waiver will be found when a party’s conduct has been inconsistent with the arbitration clause contained within the contract so as to indicate that the party has abandoned his right to arbitrate. Brennan, 97 Ill. App. 3d at 1042; Gateway, 76 Ill. App. 3d at 816.

Here, the contract specifically limits the time period within which demands for arbitration from the engineer’s rulings can be made. Although the circuit court was concerned that Abbott did not “have its day in court,” it appears that Abbott’s own actions were the reason for any lack of hearing that occurred. The engineer gave Abbott the chance to submit data. Abbott failed to do so. Furthermore, under the arbitration clause within the contract, Abbott was free to take the engineer’s resolution to the AAA, but it did not do so. These facts indicate that Abbott’s conduct was inconsistent with the arbitration provision within the contract. Accordingly, the circuit court incorrectly denied the Commission’s motion for partial summary judgment as to this issue and erroneously granted Abbott summary judgment.

In view of the foregoing, the circuit court incorrectly granted Abbott’s motion to compel arbitration. The sole issue before the court on such a motion is whether there is an agreement to arbitrate. (Donaldson, Lufkin, & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 530 N.E.2d 439.) Where the language of the arbitration agreement is clear, and it is apparent that the dispute sought to be arbitrated falls within the .scope of the agreement, the court should decide the arbitrability issue and compel arbitration. (Donaldson, 124 Ill. 2d at 445.) If, however, it is apparent that the issue sought to be arbitrated is not within the ambit of the arbitration clause, the court must decide the arbitrability issue in favor of the party opposing arbitration because there is no agreement to arbitrate. (Donaldson, 124 Ill. 2d at 445.) The critical element in determining the parties’ intention is the scope of the arbitration clause contained within the contract. Donaldson, 124 Ill. 2d at 445.

In the present case, the parties agreed to arbitrate all disputes, claims, and questions arising under the contract. However, this broad intent was limited with regard to disputes initially interpreted by the engineer. In those cases, arbitration demands were to be made within 30 days of that decision. If no demand was made, the decision became final and binding. As a result, the parties only agreed to arbitrate the engineer’s decisions within 30 days. Those decisions outside the 30-day period, therefore, were specifically excluded by the parties. Accordingly, the circuit court erred in granting the motion to compel arbitration.

Therefore, the order of the circuit court granting Abbott’s motion for partial summary judgment and for compelled arbitration is reversed and the circuit court’s order denying the Commission’s motion for partial summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE SCARIANO

text:
    MICHAEL ROSS, Petitioner-Appellant, v. CIVIL SERVICE COMMISSION OF COOK COUNTY, Respondent-Appellee.
    First District (2nd Division)
    No. 1 — 91—3816
    Opinion filed August 3, 1993.
    Katz, Friedman, Schur & Eagle, of Chicago (Irving M. Friedman and Denise S. Poloyac, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Karen Covy, Karen J. Dimond, and Joan T. Agnew, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On October 26, 1989, petitioner Michael Ross was suspended from his job as an emergency room technician (EMT) at Cermak Health Services (Cermak) for using profane language while examining newly arrived detainees on September 8, 1989. As of the latter date, petitioner had been employed for eight years and three months in the intake area at Cermak, which was located at 2800 South California Avenue on the grounds of the Cook County Department of Corrections. His duties consisted primarily of performing medical examinations of inmates who are initially brought to the correctional facility, including drawing blood samples, administering TB tests, and conducting urethral swab examinations.

On October 27, 1989, Cermak filed written charges with respondent Civil Service Commission (commission) seeking petitioner’s discharge on the grounds that on September 8, 1989, he mistreated patients by using abusive language, failed to follow instructions as per county procedures, violated security rules and regulations, and failed to perform his job duties at a satisfactory level in violation of sections 1, 9, 22 and 24 of the Cook County Rules and Regulations Governing Employee Conduct (Rules and Regulations).

On January 9, 1990, a hearing was held on Cermak’s complaint before the commission seeking petitioner’s discharge. Leonard R. Bersky, the director of Cermak, testified that on August 3, 1987, petitioner was advised in a written memorandum that as an EMT, he was required to treat detainees courteously at all times, and that he should disengage himself from any situation where the inmate becomes abusive. Bersky also identified a memorandum in petitioner’s personnel file from his supervisor, John M. Raba, M.D., which counselled him for telling an inmate on September 18, 1988, to “[g]et your ass up against the wall” while petitioner was performing a urethral swab examination. He further testified that petitioner was given a 29-day suspension for slapping and verbally abusing an inmate on July 22, 1989, although he admitted on cross-examination that the entire grievance procedure for that violation had not been completely exhausted as of the date of the hearing.

Avery Johnson, Jr., the supervisor of all EMTs at Cermak, testified that he circulated several memoranda to all EMTs warning them not to use profanity while treating the inmates. He also stated that he received a report from petitioner’s immediate supervisor, Howard Hradek, wherein Hradek stated that while he was not present on the evening of September 8, 1989, he was aware that petitioner sometimes exhibited “aggressive behavior” toward inmates and often used his size and strong voice to intimidate them.

Lucille Gauger testified that on September 8, 1989, her first day on the job as an EMT at Cermak, she was working alongside petitioner, who was drawing blood from and performing urethral swab examinations on inmates. She testified that she observed petitioner throughout the night using “very hostile” language, including racial slurs and profanity, toward the inmates while he was treating them. Gauger felt that such behavior was particularly inappropriate due to the extreme volatility present in the intake room where many of the inmates were taken immediately following their arrest. Because she thought that petitioner’s behavior was outrageous, Gauger wrote a memorandum, which was admitted into evidence, to Dr. Raba the following Monday (September 8 was a Friday) detailing her observations of plaintiff, including that he used language, such as “sit your skinny ass down in that chair,” “get your black ass over here,” and “shut the fuck up.” She further testified that the inmates appeared to be frightened by petitioner’s behavior.

Callie Wallace, an EMT at Cermak and a friend of petitioner, testified that she did not hear petitioner use any profanity toward the inmates while she was working on September 8, 1989. Wallace further stated that she sometimes worked as a supervisor, and in that capacity, she never received any complaints regarding his conduct.

Finally, petitioner testified on his own behalf that the intake area was in fact an extremely volatile place, in part because the inmates were subjected to intrusive medical examinations almost immediately after detention; therefore, he was aware of Cermak’s policy against using profanity with the inmates. He also stated that he received a grade of “excellent performance — beyond satisfactory fulfillment of job requirements” on his last two progress evaluations for the time period of September 1, 1988, to September 1, 1989. With respect to the allegations levelled against him in Cermak’s complaint, he testified that he did not think that the memorandum regarding the prohibition against verbal abuse of inmates dated August 3, 1987, was in response to any particular incident in which he was involved. Although he admitted that he occasionally used profanity at work, he vehemently denied that he ever used such language while addressing an inmate, and he specifically denied verbally abusing anyone on September 8, 1989. However, he stated that he typically instructs patients to “grab their butt and back up against, the wall” when preparing an inmate who is resisting a urethral swab examination; and when asked by one of the commissioners if he might have used the word “ass” instead of “butt,” he responded “[pjossible, yes *** [ljikely, no.”

On March 13, 1990, the commission found petitioner had committed the actions charged in the complaint, and that the record was replete with instances up to and including September 8, 1989, where he was rude, belligerent, and used profanity when addressing the inmates who were under his direction and control. The commission also found petitioner’s testimony regarding his conduct on the date in question to be unbelievable. After finding that his conduct warranted disciplinary action, the commission determined the proper sanction to be discharge.

Petitioner thereafter filed a petition for writ of certiorari in the circuit court on April 17, 1990, praying that the decision of the commission be reversed. After hearing oral argument, Circuit Court Judge Sophia Hall entered an order on October 31, 1991, affirming the decision of the commission. Petitioner filed a timely notice of appeal from that order.

A reviewing court’s scope of review of an agency’s decision to discharge a public employee is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, 449 N.E.2d 115, 117; Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550, 426 N.E.2d 885, 887.) Second, it must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge exists. (Walsh, 96 Ill. 2d at 105, 449 N.E.2d at 117; Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 551, 426 N.E.2d at 887.) An administrative tribunal’s finding of “cause” for discharge commands the reviewing court’s deference and should not be overturned unless it is arbitrary, unreasonable, or unrelated to the requirements of the service. (Walsh, 96 Ill. 2d at 105-06, 449 N.E.2d at 117; accord Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419, 435, 603 N.E.2d 447, 484.) This framework for reviewing a challenge to the decision of an administrative agency is identical whether it be reviewed under the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.) or the common law writ of certiorari. Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 498, 539 N.E.2d 1243, 1246; Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286; Maddox v. Williamson County Board of Commissioners (1985), 131 Ill. App. 3d 816, 822, 475 N.E.2d 1349, 1353-54.

I

The first issue in the case at bar is whether it was against the manifest weight of the evidence for the commission to decide that petitioner’s conduct on September 8, 1989, constituted a violation of sections 1, 9, 22 and 24 of the Rules and Regulations. Factual findings made by an administrative tribunal are deemed prima facie true and and correct (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Carver v. Band/Fayette/Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 355, 586 N.E.2d 1273, 1277), and are thus deemed to be against the manifest weight of the evidence only where the opposite conclusion is clearly evident, or where it is unreasonable, arbitrary and not based on the evidence. (Maple v. Gustafson (1992), 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512-13.) Therefore, we will not find a factual determination to be against the manifest weight of the evidence unless there is a complete absence of facts in the record supporting the conclusion reached. Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 171, 133 N.E.2d 288, 291; Laird v. Illinois Central Gulf R.R. Co. (1991), 208 Ill. App. 3d 51, 64-65, 566 N.E.2d 944, 951.

The testimony of Gauger, who stated that she observed petitioner verbally abusing and intimidating inmates throughout the night in question, was, in and of itself, sufficient for the commission to find that petitioner’s conduct amounted to a violation of the applicable rules and regulations. While it is true that petitioner and another witness refuted Gauger’s recollection of the evening’s events, the commission did not believe that testimony, and it is by now axiomatic that a reviewing court is not to reevaluate the credibility of witnesses who testify before an administrative agency. (See, e.g., Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 513, 475 N.E.2d 879, 885; East St. Louis School District No. 189 v. Hayes (1992), 237 Ill. App. 3d 638, 646, 504 N.E.2d 557, 563.) Accordingly, we hold that the commission’s determination that petitioner violated sections 1, 9, 22 and 24 of the Rules and Regulations was not against the manifest weight of the evidence.

II

We next determine whether the commission’s decision that there was cause to terminate him was arbitrary, unreasonable or unrelated to his service. “Cause” has been defined as “ ‘some substantial shortcoming which renders [the employee’s] continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as good cause for his [discharge].’ ” Walsh, 96 Ill. 2d at 105, 449 N.E.2d at 117, quoting Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360,189 N.E.2d 275, 277.

Petitioner first asserts that the commission’s decision to terminate him was arbitrary and unreasonable because it was contrary to respondent’s disciplinary action policy and procedure (Disciplinary Policy), which requires that discipline be administered progressively. (Cf. Bell v. Civil Service Comm’n (1987), 161 Ill. App. 3d 644, 651, 515 N.E.2d 248, 252 (“In disciplinary proceedings, a public body must comply with its own rules and an employee being disciplined is entitled to rely upon those rules”).) We find petitioner’s argument to be baseless. First, he was in fact disciplined progressively, for on both August 3, 1987, and September 19, 1988, he was counselled in writing for using vulgar and inappropriate language while treating inmates. He was also suspended for 29 days for similar behavior which occurred on July 22, 1989. Accordingly, petitioner cannot successfully maintain that his discharge for the fourth incident which involved his addressing inmates with vulgar language and racial epithets was not “progressive.”

Moreover, section E of the Disciplinary Policy provides:

“Disciplinary Action for Major Cause infractions need not be progressive. Major Cause is defined as, but not limited to, the following behavior by an employee on duty or on the premises of any County facility:
* * *
3. Patient, employee or visitor abuse.”

Considering Gauger’s testimony that petitioner told inmates to “sit your skinny ass down in that chair,” “get your black ass over here,” and “shut the fuck up,” there is no question but that petitioner’s conduct on September 8 constituted verbal abuse of inmates.

Petitioner further argues, citing Batley v. Kendall County Sheriff’s Department Merit Comm’n (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201, and Fox v. Illinois Civil Service Comm’n (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201, that even if the commission did not violate the progressive discipline requirement, the infraction involved here was not sufficiently severe to constitute just cause for discharge. We disagree. In Bately and Fox, we held that based on the fact that the uses of profanity for which the plaintiffs were terminated were isolated incidents, the misconduct involved there did not warrant the severe sanction of discharge. In this case, however, we are presented with a situation in which petitioner has exhibited a continuous pattern of intimidating inmates with profane language. Quite simply, written warnings from his supervisors and a rather lengthy suspension have not deterred him from engaging in such inexcusable behavior; consequently, we cannot say that the commission’s decision to impose discharge as the appropriate form of discipline was arbitrary or unreasonable.

For all of the foregoing reasons, we affirm the judgment of the trial court upholding the commission’s discharge of petitioner.

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.


text:
    HERBERT ESKRIDGE, Plaintiff-Appellant and Counterdefendant-Appellant, v. FARMERS NEW WORLD LIFE INSURANCE COMPANY et al., Defendants (Veterans Life Insurance Company et al., Counterplaintiffs and Third-Party Plaintiffs; Estate of Elsie Eskridge et al., Third-Party Defendants-Appellees).
    First District (2nd Division)
    No. 1 — 92—2517
    Opinion filed August 3, 1993.

      Howard Hoffman & Associates, of Chicago, and Bernstein & Rochell, Ltd., of Buffalo Grove (Howard Bernstein, of counsel), for appellant.
    Levin & Funkhouser, Ltd. (Vance L. Liebman and Michael S. Pomerantz, of counsel), and Young, Houslinger & Rosen, Ltd. (Jay L. Dolgin, of counsel), both of Chicago, for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

On August 8, 1988, Elsie Eskridge (Elsie) was found dead in the house in Glenwood Park where she had formerly resided with her estranged husband, plaintiff Herbert Eskridge. Elsie owned three life insurance policies and had named plaintiff as the beneficiary of each. The first policy, with a value of $118,000, was issued by Farmers New World Life Insurance Company, one of the defendants herein, on September 23, 1987. Elsie also had a Federal Employees’ Group Life Insurance policy, administered by Metropolitan Life Insurance Company (Metropolitan), in the amount of $110,000, as to which policy she made plaintiff the beneficiary on February 18, 1988. Finally, the third policy, in the amount of $100,000, was issued by Veterans Life Insurance Company (Veterans) on April 22, 1988.

On October 22, 1988, plaintiff made a claim with all three insurance companies for the proceeds of the policies. However, Elsie’s three children from a previous marriage, Derrick A. Herron, Lotonya M. Herron, and James Herron, Jr. (the children), also filed claims for the proceeds, asserting that plaintiff was not entitled to them for the reason that he intentionally caused Elsie’s death. The companies refused to honor any of the claims, and after plaintiff brought suit against them to compel payment, Veterans and Metropolitan inter-pleaded plaintiff and the children. Thereafter, pursuant to an agreement between all of the parties, all of the companies were dismissed from the cause upon paying the proceeds of the policies to plaintiff’s and the children’s attorneys, who then deposited all of the funds in an interest-bearing account subject to further order of court. The cause was then heard by the court sitting without a jury, the sole issue being entitlement to the insurance funds.

The following evidence was adduced at trial. Plaintiff and Elsie, who worked together for the United States Postal Service, were married on September 16, 1986. Their marriage was turbulent throughout, and plaintiff had continued to see another woman during the marriage. Ultimately, in June of 1988, the couple separated, and plaintiff took away Elsie’s keys to their Glenwood Park home. Plaintiff eventually took up residence with his girl friend, while Elsie went to live in Chicago with a childhood friend named Helen Harden. The Glenwood Park residence was unoccupied at the time of Elsie’s death.

On Saturday, August 6, 1988, Elsie was scheduled to accompany Harden to a picnic, but went instead to the Glenwood Park home, where at some point during that day, neighbors saw her mowing the half-acre lawn of the premises. Harden testified that Elsie called her from the Glenwood Park residence at approximately 5 p.m., informing her that she would be returning to Harden’s home later that evening. She never arrived, however, and Harden did not inquire further as it was not unusual for Elsie not to return for a few days.

Sergeant Brian Myers of the Glenwood Park police department testified that he was called to the Glenwood Park home at 7 p.m. on Monday, August 8, 1988, by patrol officers who, after responding to a complaint of a vehicle being parked suspiciously in the driveway, noticed a foul stench emanating from the home. After entering the residence, where it was extremely hot, Sergeant Myers found the partially decomposed body of Elsie lying on the floor next to a mattress in the upstairs master bedroom. Elsie was naked from the waist down and her shirt was pulled up around her neck. Her feet were near, but not actually touching, the bedroom wall, and a telephone answering machine was found between her legs. Sergeant Myers observed dried blood on her mouth and nose, and a cloth which appeared to be stained with blood lay next to her head. Although there was no evidence of forced entry, clothes had been scattered throughout the room. All of the windows were closed, and the air conditioning was off when Sergeant Myers arrived. Finally, plaintiff’s expired driver’s license was found on the floor near Elsie’s body.

Yuskel Konacki, M.D., an assistant Cook County medical examiner, testified that he performed the autopsy on Elsie and found that she was a middle-aged African-American female, and given the postmortem decomposition of her head and upper chest area, he opined that she had died several days before being found. Dr. Konacki found no evidence that Elsie had been shot, stabbed, strangled, beaten or poisoned; however, he could not rule out homicide as the cause of death. Accordingly, he listed the official cause of death as undetermined.

George Washington, a convicted felon who was a friend of both Elsie and plaintiff, testified that in early 1988, plaintiff told him that he had married Elsie only because she was wealthy, and then described to Washington a scheme by which he would become the beneficiary of his wife’s insurance policies and then murder her. Plaintiff also told him that he had obtained a book which described different ways in which a person could commit murder without leaving a trace of the cause of death, one of which was by an injection of a lethal dose of insulin.

In March of 1988, plaintiff told Washington that “everything had been taken care of” and solicited his help in killing Elsie, offering to pay him $40,000 for his services. He suggested two ways in which Washington could murder Elsie; he could either inject her with insulin as per their previous discussion, or he could shoot her in a gang-infested neighborhood, making Elsie appear to be the innocent victim of a gang-related homicide.

Instead of cooperating with plaintiff, Washington told Elsie about plaintiff’s plot. After Elsie confronted him with the information which Washington had given her, plaintiff promised to kill him for “messpng] up his plans.” He threatened Washington at his home on several occasions, and Washington claimed that at another time, plaintiff shot out his car windows. After this incident, Washington went to the May-wood police department in order to obtain protection, and while he was there, he also described plaintiff’s plan to murder his wife. When Washington read in a newspaper several weeks later that Elsie was dead, he immediately recontacted the Maywood police department and they sent him to the Glenwood police department, where he related his story to Sergeant Myers.

Helen Harden testified that sometime in April, she and Elsie had discussed Elsie’s life insurance policies, and after telling Harden that she had designated plaintiff as the beneficiary on all of them, Elsie warned her that “if anything mysterious happens to [me], have them investigate [plaintiff’s] ass first.” Harden stated that although Elsie did not seem to be afraid at that time, she appeared horrified during a later conversation when she told her that plaintiff threatened to kill her because she had decided to give their dog away after they had moved.

Latonya Herron, one of the children, testified that she lived with Elsie and plaintiff for a short period of time before Elsie’s death. She stated that at some point during that period of time, Elsie told her to look for plaintiff if anything happened to her, and when Lotonya asked for clarification, Elsie told her that she would “understand it sooner or later.”

Wilbert Beaton, an investigator for the Cook County medical examiner’s office, testified that in his expert opinion, it was more likely than not that plaintiff caused Elsie’s death for the following reasons: (1) her body was found in a home where she was not currently residing; (2) her body was found semi-clothed under suspicious circumstances; (3) she was estranged from plaintiff, who was living with his long-time girl friend; (4) plaintiff had previously plotted to have her killed; (5) he had previously threatened to kill her; (6) she had recently purchased a substantial amount of life insurance; and (7) plaintiff was the beneficiary on all of those life insurance policies.

The children finally called plaintiff as an adverse witness, and he admitted that he was living with his girl friend at the time of his wife’s death; that she, and not Elsie, was the beneficiary of his life insurance policy; and that he took away Elsie’s keys and forced her out of their Glenwood Park home. He also testified that he had been previously suspended from work for kicking a co-employee as well as for threatening one of his supervisors at the post office. He denied, however, that he killed his wife or that he was in her presence on the day that she died.

After his motion for a “directed verdict” was denied, plaintiff called Glenwood Park police sergeant Alexander Dimare, who testified that in August 1991, he reopened the criminal investigation of Elsie’s death at the request of Wilbert Beaton. After reviewing the files in the case, however, he was unable to determine how Elsie died; therefore, he subsequently closed the investigation without arresting anyone in connection with the case.

Finally, Chicago police detective Michael Kill testified as an expert witness on plaintiff’s behalf. He conducted a follow-up investigation of Elsie’s death and confirmed that there was no evidence that she had been shot, stabbed, beaten, strangled or poisoned. Officer Kill further testified that he found Washington to be untrustworthy because of his extensive criminal background, that he found no record of Washington’s alleged complaint with the Maywood police department, that he had a motive to lie because he had had a previous dispute with plaintiff over a car which he purchased from him, and that Washington’s “reputation for truthfulness [in the community] is minimal.” He also determined that plaintiff was at work between 3 and 11 p.m. on August 6, 1988, and while he admitted that it was possible for plaintiff to have left during that time, Officer Kill found no evidence that he did in fact do so. For these reasons, Officer Kill concluded that, in his opinion, Elsie’s death was not a homicide.

After hearing all of this evidence, the trial court found in favor of the children, specifically finding that Elsie’s death was a homicide and that plaintiff intentionally and unjustifiably caused her death. Plaintiff appeals from that judgment.

In a proceeding to determine the respective rights of claimants to property deposited by the stakeholder in an interpleader action, the burden of proof rests with each claimant to establish his entitlement to the property, and in so doing, the claimants must recover on the strength of their own claims, and not on the weakness of the adverse claim. (Blair v. Travelers Insurance Co. (1961), 30 Ill. App. 2d 191, 193, 174 N.E.2d 209, 209-10; Prudential Insurance Co. v. Cahill (1943), 321 Ill. App. 45, 53, 52 N.E.2d 481, 484; see 7A C. Nichols, Illinois Civil Practice §7460, at 242 (rev. ed. 1991).) In the instant case, the parties stipulated that Elsie was dead and that plaintiff was the named beneficiary on each of her insurance policies. Therefore, plaintiff sustained his burden of establishing a right to the insurance proceeds, and the children bore the burden of establishing a greater right thereto or, as in this case, some affirmative matter defeating plaintiff’s claim.

Under section 2 — 6 of the Probate Act of 1975 (section 2 — 6), a beneficiary is not entitled to the proceeds of a life insurance policy when he or she intentionally and unjustifiably causes the death of the insured. (Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 6.) In order to prevent a beneficiary from recovering life insurance proceeds under that statute, the challenging party must prove that: (1) the insured is in fact dead; (2) the insured was intentionally and unjustifiably killed; and (3) the beneficiary was the person who intentionally and unjustifiably caused the death of the insured.

In the case at bar, as just noted, the parties stipulated that Elsie was dead; further, plaintiff does not contend that Elsie was killed accidentally or justifiably. He takes issue only with the trial court’s determination that Elsie’s death was a homicide and that it was he who killed her.

We are not to reverse the trial court’s determination that the challenging party met its burden of establishing the elements necessary to preclude a beneficiary from collecting insurance proceeds unless that finding was against the manifest weight of the evidence. (State Farm Life Insurance Co. v. Smith (1977), 66 Ill. 2d 591, 595, 363 N.E.2d 785, 786.) A fact finder’s determination will be deemed to be against the manifest weight of the evidence only where the opposite conclusion is clearly evident or where the findings are unreasonable, arbitrary and not based on the evidence. (Maple v. Gustafson (1992), 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512-13.) Moreover, it is hornbook law that we are not to usurp the function of the fact finder by substituting our judgment on questions of fact which were fairly submitted, tried and determined from the evidence (Maple, 151 Ill. 2d at 452-53, 603 N.E.2d at 511-12); therefore, we are without authority to reverse a factual determination unless there is a complete absence of facts in the record supporting the conclusion reached. Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 171, 133 N.E.2d 288, 291; Laird v. Illinois Central Gulf R.R. Co. (1991), 208 Ill. App. 3d 51, 64-65, 566 N.E.2d 944, 951.

It is undisputed that the evidence presented by the children on these two issues is completely circumstantial. Circumstantial evidence is the proof of certain facts and circumstances from which the fact finder may infer other connected facts which usually and reasonably follow according to the common experience of mankind. (People v. Rhodes (1981), 85 Ill. 2d 241, 248-49, 422 N.E.2d 605, 608.) In civil actions, circumstantial evidence is not limited to instances where the circumstances support only one logical conclusion; instead, the sole limitation on the use of circumstantial evidence is that the inferences drawn therefrom be reasonable. (Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18, 21; Hartness v. Ruzich (1987), 155 Ill. App. 3d 878, 883, 508 N.E.2d 1071, 1073-74, appeal denied (1987), 116 Ill. 2d 555, 515 N.E.2d 108.) Even with respect to criminal convictions based solely on circumstantial evidence, the facts proved need not be inconsistent with any reasonable hypothesis of the defendant’s innocence. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) With these precepts in mind, we must determine whether it was against the manifest weight of the evidence for the trial court to have inferred from the circumstantial evidence offered by the children that Elsie’s death was caused by criminal means and that plaintiff was the one who caused it.

A

We find that there was sufficient circumstantial evidence presented from which the trial court could have reasonably inferred that Elsie did not die of natural causes, but instead was murdered. First, the blood found on Elsie’s face and on the rag which was found nearby, as well as the fact that her shirt was pushed up around her neck, are reasonable indications of foul play. Furthermore, plaintiff told Washington that he learned from a book how to kill someone without leaving a trace as to how that person died, a scenario which parallels the facts in the case sub judice. Moreover, it was reasonable for the trial court to conclude that Elsie did not die naturally in her sleep while napping because it is extremely unlikely that she would: (1) have lain on the wooden floor instead of the mattress; (2) not have turned on the air conditioning or at least opened a window before lying down to take a nap in a room where the temperature was in excess of 100 degrees; (3) have lain with the answering machine between her legs; and (4) have rolled her blouse up around her neck before going to sleep. Furthermore, it was logical for the trial court to reject plaintiff’s suggestion that she died after collapsing from heat exhaustion, since there is no explanation as to how her body came to rest in such an unusual position, how her shirt came to be rolled up around her neck, or how the blood found its way onto her face and the nearby rag. Finally, had Elsie been stricken by some sort of heart attack or hemorrhage, those potential causes of death surely would have been apparent from an autopsy taken only a few days after her demise.

Accordingly, we hold that the trial court’s determination that Elsie’s death was a homicide was not against the manifest weight of the evidence.

B

We also find that there was ample circumstantial proof from which the trial court could have reasonably inferred that plaintiff was the person who either killed or had someone else kill Elsie. First, plaintiff had a powerful motive to kill her — he was the beneficiary on all of her life insurance policies which she purchased after marrying plaintiff, and on the one policy which she had obtained prior to the marriage, she subsequently named him the beneficiary. Second, the couple had a long history of marital discord during which plaintiff had an extramarital affair, culminating in his taking up residence with his girl friend. Third, Washington testified that just a few months before Elsie died, plaintiff solicited his assistance in having her killed, promising to share with him the proceeds of Elsie’s insurance policies. Fourth, Harden testified that Elsie told her that plaintiff had threatened to kill her. Fifth, prior to her death, Elsie told Harden and her daughter Lotonya that plaintiff should be investigated if she were to die under suspicious circumstances. Finally, there was no evidence of forced entry into the home; therefore, plaintiff, who had keys to the residence, had access to the house without forcibly entering. In light of the substantial amount of circumstantial evidence indicating that plaintiff intentionally and unjustifiably caused the death of Elsie, we hold that the trial court’s determination to that effect was not against the manifest weight of the evidence, whether we measure the children’s proof at trial by the “clear and convincing” evidence standard or the preponderance of the evidence yardstick.

For all of the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

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

      At the time of trial, the funds on deposit totalled approximately $365,000.

      Harden actually testified over plaintiff’s objection that her daughter told her that Elsie said that she was going to her home in order to meet plaintiff. This testimony constitutes double hearsay, and while Elsie’s statement to Harden’s daughter as to where she was going would be admissible under the state of mind hearsay exception (People v. Silvestri (1986), 148 Ill. App. 3d 980, 985, 500 N.E.2d 456, 460, appeal denied (1987), 113 Ill. 2d 583, 505 N.E.2d 360), no exception to the hearsay rule would allow Harden to testify to what her daughter told her. We may nevertheless reasonably infer from the other evidence presented that Elsie did not go to the picnic with Harden and that she instead went to the Glenwood Park home; therefore, the only portion of Harden’s testimony we decline to consider is that Elsie went there with the intention of meeting plaintiff.

      It was later determined that the temperature in the bedroom on the day Elsie died would have been somewhere between 114 and 119 degrees.

      As we have noted in previous opinions, we find no provision in the Code of Civil Procedure which allows a party to bring a motion for a directed verdict or a “directed finding” in a bench trial. See Rohter v. Passarella (1993), 246 Ill. App. 3d 860, 864 n.l; People v. Davilla (1992), 236 Ill. App. 3d 367, 373 n.3, 603 N.E.2d 666, 669 n.3.

      Section 2 — 6 states in pertinent part:
      “Person causing death. A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other capacity and whether the property, benefit, or other interest passes pursuant to any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance. The property, benefit, or other interest shall pass as if the person causing the death died before the decedent ***. A determination under this Section may be made by any. court of competent jurisdiction separate and apart from any criminal proceeding arising from the death ***.” Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 6.

      We note that while both parties agreed at trial that the children were required to prove the above-stated elements by “clear and convincing” evidence (see In re Estate of Hook (1991), 207 Ill. App. 3d 1015, 566 N.E.2d 759, appeal denied (1991), 137 Ill. 2d 665, 571 N.E.2d 148), we find the proper burden of proof to be applied when a party seeks to prove in a civil action that a crime was committed is by a preponderance of the evidence. (See Board of Education of the City of Chicago v. State Board of Education (1986), 113 Ill. 2d 173, 497 N.E.2d 984.) However, because we hold below that it was not against the manifest weight of the evidence for the trial court to determine that the evidence against defendant was clear and convincing, we conclude, a fortiori, that the children presented sufficient evidence to meet the preponderance standard.