author: PRESIDING JUSTICE GOLDENHERSH

text:
    DOWNSTATE NATIONAL BANK, f/k/a The First National Bank in Alta-mont, Plaintiff-Appellee, v. HAL E. ELMORE et al., Defendants-Appellants.
    Fifth District
    No. 5—90—0599
    Opinion filed February 14, 1992.

      Bruce A. Burkey, of Altamont, for appellants.
    Paul F. Zeman, of LeFevre, Zeman, Oldfield & Schwarm Law Group, Ltd., of Vandalia, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants Hal E. Elmore, Luann K. Elmore, and U.S. Mortgage Corporation appeal from a declaratory judgment of the circuit court of Effingham County in favor of plaintiff, Downstate National Bank, formerly known as the First National Bank in Altamont.

We determine the issues on appeal to be (1) whether the lien rights of a junior mortgagee can be extinguished by a foreclosure suit if a comortgagor is not made a party to this suit and the comortga-gor’s equity of redemption is not foreclosed, even though the junior mortgagee was made a party to the suit; (2) whether plaintiff is estopped by the prior foreclosure judgment from seeking a declaratory judgment that plaintiff’s mortgage was not foreclosed as to the undivided one-half interest of the property held by the comortgagor excluded from the prior foreclosure proceeding; (3) whether plaintiff is barred from obtaining a declaratory judgment as to the scope and effect of the prior foreclosure judgment under the equitable doctrine of laches; (4) whether a quit-claim deed in lieu of foreclosure from a mortgagor to his first mortgagee and a subsequent conveyance by the first mortgagee to a third-party purchaser without judicial foreclosure of the second mortgage leaves the purchaser holding fee simple title subject to the second mortgage; (5) whether sanctions should be imposed upon plaintiff under section 2 — 611 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—611) for bringing an action not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law; and (6) whether the trial court properly acted within the scope of its authority under the declaratory judgment statute in entering its declaratory judgment. We affirm.

On December 13, 1978, Dennis and Earlene Berkbigler acquired title in fee simple absolute of lot 9 of Parkview Estates in the City of Altamont, County of Effingham, State of Illinois. Two days later, the Berkbiglers conveyed a purchase money mortgage to Land of Lincoln Savings & Loan Association (Land of Lincoln) in the principal sum of $62,000. The mortgage and deed were recorded on December 15, 1978. On November 26, 1982, Dennis and Earlene Berkbigler executed a second mortgage to plaintiff. The real estate in issue was the marital residence of the Berkbiglers, whose marriage was terminated by a judgment of dissolution entered September 22, 1986. The judgment ordered the property to be sold.

Before the property was sold, Land of Lincoln filed a foreclosure action, cause No. 86 — CH—33, in the circuit court of Effingham County, naming Earlene Berkbigler, plaintiff and unknown owners as defendants. The complaint set forth the ownership of Dennis Berkbigler but did not name him as a defendant. On December 30,

1986, the same day the foreclosure suit was filed, Dennis Berkbigler filed a petition for voluntary bankruptcy under chapter 11 of the United States Bankruptcy Code. On January 22, 1987, plaintiff filed an answer to Land of Lincoln’s complaint, admitting all material allegations. A judgment of foreclosure was entered on March 6, 1987, with a 60-day redemption period. The court found that Land of Lincoln was due a sum of $67,120.29. The judgment stated, “EARLENE CHRISTENSEN [formerly Earlene Berkbigler] is the owner of the equity of redemption.”

On March 13, 1987, Dennis Berkbigler tendered an offer for deed in lieu of foreclosure to Land of Lincoln. A fully executed and recordable quit-claim deed from Dennis Berkbigler was delivered with the offer. A sheriff’s sale was held April 14, 1987, and approved April 29, 1987, confirming Land of Lincoln’s bid of $65,577.39 as the highest bid. The report of sale confirmed a deficiency of $2,182.50 remaining due Land of Lincoln after application of the proceeds of the sheriff’s sale to the indebtedness secured by the mortgage. On June 16, 1987, a sheriff’s deed to Land of Lincoln and a quit-claim deed from Dennis Berkbigler to Land of Lincoln were recorded.

Land of Lincoln listed the parcel for sale through a local real estate broker and received an offer from defendants Hal E. Elmore and Luann K. Elmore on July 15, 1988, to purchase the property for $68,500. Land of Lincoln accepted the offer on August 4, 1988, and conveyed a special warranty deed evidencing a sale to the Elmores in the sum of $68,500 on September 26, 1988. Three days later, the Elmores conveyed a purchase money mortgage to defendant U.S. Mortgage Corporation. In a letter dated June 2, 1989, plaintiff gave notice that it possessed a lien on one-half of the real estate in question, demanding payment in excess of $41,000. On July 25, 1989, plaintiff filed a complaint for declaratory judgment against the Elmores and U.S. Mortgage Corporation in cause No. 89 — MR—26 in the circuit court of Effingham County. The complaint alleged (1) that plaintiff has a valid mortgage lien as to an undivided one-half interest in the subject real estate; and (2) that its interest is superior to that of U.S. Mortgage Corporation. Defendants raised two affirmative defenses: (1) estoppel by judgment in cause No. 86 — CH—33; and (2) laches.

Plaintiff moved for summary declaratory judgment, stating: (1) the foreclosure judgment in cause No. 86 — CH—33 was ineffective in adjudicating the title and interest of Dennis Berkbigler; (2) the lien on Dennis Berkbigler’s equity of redemption created by the second mortgage of plaintiff was not terminated, barred, or otherwise affected by the foreclosure judgment, the sale and the order approving sale, or the sheriff’s conveyance in cause No. 86 — CH—33; (3) Land of Lincoln’s acquisition of Dennis Berkbigler’s title in interest by quit-claim deed affected a merger of title, owner’s equity of redemption and the mortgage into an undivided one-half interest in the property, so that on June 6, 1987, Land of Lincoln owned an undivided one-half interest in the property, subject to the mortgage lien of plaintiff; (4) alternatively, if merger did not occur when Dennis Berkbigler’s quit-claim deed was transferred to Land of Lincoln, merger did occur when Land of Lincoln conveyed title to the Elmores by special warranty deed without words of limitation or condition; and (5) plaintiff’s mortgage of November 26, 1982, continues as to an undivided one-half interest in the property and is superior to ,the subsequent mortgage to defendant U.S. Mortgage Corporation as to an undivided one-half interest.

Defendants moved for summary judgment on grounds of estoppel by judgment and laches. Defendants further moved for sanctions, claiming expenses and alleging that plaintiff’s actions are false, vexatious and made without reasonable inquiry whether they are well grounded in fact or warranted by existing law or good-faith argument. The court ruled that the mortgage of plaintiff dated November 26, 1982, is a valid mortgage lien as to an undivided one-half interest in the property, and that plaintiff’s mortgage is superior to that of defendant U.S. Mortgage Corporation, and the court denied defendant’s motion for sanctions. Defendants appeal the judgment.

We first address whether plaintiff’s lien rights as junior mortgagee were extinguished through the foreclosure suit brought by senior mortgagee Land of Lincoln against Earlene Berkbigler and plaintiff, but not against comortgagor Dennis Berkbigler. Apparently, Dennis Berkbigler agreed to transfer his undivided one-half interest in the property to Land of Lincoln by quit-claim deed, in exchange for Land of Lincoln’s promise not to foreclose against him. Land of Lincoln proceeded only against Earlene Berkbigler, Dennis Berkbigler’s ex-wife and comortgagor, and plaintiff, the junior mortgagee.

In Illinois, a junior mortgage conveys to the mortgagee a lien on the mortgagors’ equity of redemption. (Baldi v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 29, 446 N.E.2d 1205.) The lien rights of a junior mortgagee cannot be extinguished if the mortgagor is not made a party, even though the junior mortgagee is a party. (Fleisher v. Flick (1948), 334 Ill. App. 461, 80 N.E.2d 81.) Here, Dennis Berkbigler was not made a party to the foreclosure suit, so his equity of redemption was not foreclosed. We must now determine what happened to plaintiff’s lien on Dennis Berkbigler’s equity of redemption. The trial court reasoned:

“In this case, only the interest of Earlene Berkbigler (and that of Downstate National Bank as it related to Earlene Berkbigler’s interest) was subject to foreclosure. If Downstate wished to pursue its lien on the equity of redemption in the foreclosure proceedings, it would have only received title to one-half the property, that of the Earlene Berkbigler interest being foreclosed and not the interest of Dennis Berkbigler which was not being foreclosed. The interest of Dennis Berkbigler in the property never having been the subject of the foreclosure proceedings, the court rules that the lien on the interest of Dennis Berkbigler in the proceedings was not before the Court in 86 — CH—33.”

We agree with the trial court. Since Dennis Berkbigler’s interest was not foreclosed, plaintiff’s lien against Dennis Berkbigler’s undivided one-half interest was not extinguished by cause No. 86 — CH—33.

We next turn to defendants’ contention that plaintiff was estopped from seeking a declaratory judgment confirming that its mortgage lien was not foreclosed as to Dennis Berkbigler’s undivided one-half interest. Defendants argue that the language of the foreclosure judgment supports their contention:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if the premises so sold shall not have been redeemed within sixty (60) days from and after the date of the Sheriff’s sale authorized herein, then the Defendants and all persons claiming under them or any of them since the commencement of this suit be forever barred, foreclosed of and from all rights and equity of redemption or claim in and to said premises or any part thereof ***.”

From this language defendants would have this court infer that plaintiff is barred from seeking a declaratory judgment because plaintiff was a proper party to the foreclosure action and did not challenge the judgment by direct attack. After reading the entire order, we determine that such an inference is unwarranted. Paragraph 7 of the foreclosure judgment states “that EARLENE CHRISTENSEN [formerly Earlene Berkbigler] is the owner of the equity of redemption.” The language defendants direct us to in the paragraph set forth above must be interpreted in context with the antecedent paragraph naming Earlene Christensen (formerly Earlene Berkbigler) as the sole owner of the equity of redemption. With that in mind, we find no bar to the declaratory judgment action because the court presiding over the foreclosure suit did not have Dennis Berkbigler or his interest before it.

Plaintiff did not challenge the validity, force or effect of the foreclosure judgment as it relates to the undivided one-half interest in the mortgaged property in which Earlene Berkbigler held the equity of redemption, and the trial court did not declare the foreclosure judgment void or invalid. The trial court found that the proceeding filed by Land of Lincoln resulted in the judicial foreclosure and sale of an undivided one-half interest in the property jointly owned by Dennis Berkbigler and Earlene Berkbigler. Dennis Berkbigler’s undivided one-half interest in the property was not before the court in the foreclosure suit. Therefore, estoppel by judgment is inapplicable. We agree. Under the doctrine of estoppel by judgment, a judgment in a former suit operates as an estoppel only where it appears on the face of the record or by extrinsic evidence that the precise question in controversy was raised and determined in the former suit. (Skolnik v. Petella (1941), 376 Ill 500, 34 N.E.2d 825.) As we have already concluded, the interest of Dennis Berkbigler was not raised and determined in the foreclosure suit, nor was plaintiff’s lien on Dennis Berkbigler’s interest raised and determined in the foreclosure suit. Therefore, the trial court is correct in finding defendant’s claim of estoppel by judgment inapplicable to the case at bar.

We now turn to the issue whether the quit-claim deed in lieu of foreclosure from Dennis Berkbigler to Land of Lincoln and the subsequent conveyance by Land of Lincoln to the Elmores without judicial foreclosure of the mortgage held by plaintiff leaves the Elmores holding fee simple title subject to plaintiff’s mortgage. The extinguishment of a mortgage lien upon acquisition by the mortgagee of the mortgagor’s title and equity of redemption is known as the doctrine of merger. Whether a merger occurred depends on the intent of the parties. (Chicago Title & Trust Co. v. Wolchinovesky (1945), 326 Ill. App. 194, 61 N.E.2d 264.) Dennis Berkbigler conveyed the quit-claim deed dated March 13, 1987, to Land of Lincoln, which was recorded June 16, 1987, a date beyond the time period for redemption in the foreclosure suit. The deed contained the following language: “Subject to a mortgage in favor of the LAND OF LINCOLN SAVINGS AND LOAN ASSOCIATION ***.” Although defendants argue that such language clearly shows that the parties did not intend a merger, plaintiff disagrees. Plaintiff argues that the delivery of the deed, accompanied by a written offer of deed in lieu of foreclosure, was accepted by Land of Lincoln and constituted the understanding and agreement of the parties. The offer, signed by Dennis Berkbigler, states that the deed tendered with the offer was intended as “an absolute conveyance, in effect as well as in form, and is not intended as a mortgage, trust conveyance or security instrument of any kind.” The offer further states that the conveyance was in full satisfaction of all sums due the mortgagee “under the abovesaid note and mortgage.” Additionally, plaintiff argues that the offer failed to mention the existence of a second mortgage, and did not in any way affirmatively state an intention to prevent or avoid the consequences of merger of lien and title; therefore, a merger occurred.

Alternatively, plaintiff argues that merger occurred when Land of Lincoln conveyed title to the Elmores by special warranty deed which contained the conveyancing words “grant, bargain and sell.” Section 9 of “An Act concerning conveyances” states, in pertinent part, that when such words are employed, they are taken to mean that grantor is:

“the lawful owner of an indefeasible estate in fee simple *** free from all incumbrances; and *** that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same.” (Ill. Rev. Stat. 1987, ch. 30, par. 8.)

We agree with the trial court’s conclusion:

“If it is not sufficiently clear that by operation of law *** the mortgage interest of Land of Lincoln had merged with the interest it acquired from Dennis Berkbigler, at the time Land of Lincoln acquired the Dennis Berkbigler interest, then it is certainly clear that Land of Lincoln merged the interest by its conveyance to Hal and Luann Elmore.”

We next turn to defendants’ contention that sanctions should be imposed upon plaintiff under section 2 — 611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) for bringing an action not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law. In light of our holding, any further discussion of this issue is unnecessary.

Finally, we address defendants’ contention that the trial court acted beyond the scope of its authority in entering a declaratory judgment for plaintiff. In support of their argument, defendants cite Illinois Power Co. v. Miller (1956), 11 Ill. App. 2d 296, 137 N.E.2d 78, for the proposition that a court acting under declaratory judgment cannot interpret, define, elucidate or declare rights under a former judgment or decree. The statement is not a principle of law determined by the Miller court, but that of the courts of Wisconsin, Pennsylvania and Kentucky. (11 Ill. App. 2d at 302, 137 N.E.2d at 81.) The Miller court applies the rule to specific litigants in that case and discards its applicability without adopting it as Illinois law:

“Insofar as any part of the decision in this case attempts to define, interpret, enforce or declare rights under the condemnation suit between the Illinois Power Company and the owners of record *** we must hold it improper under the Declaratory Judgment Act. Those rights were determined and settled in the original condemnation suit. But does this mean that the court could not determine under the Declaratory Judgment Act, the rights of the Illinois Power Company, and the rights of those claiming as tenants of the lands involved in the original condemnation suit? To properly pass upon that point, we must look to the words of the Illinois Act itself. *** ***
From a reading of the statute it is clear that there must be an actual controversy. *** ‘If the complaint fails to show a controversy exists, or that the question involved is moot, the suit should be dismissed on motion. But if an actual controversy is disclosed and is adjudicated by the court, whether upon demurrer or motion or otherwise, the suit should not be dismissed; the proper practice is for the court to enter an order declaring the rights of the parties as was done in this case. ***’ [Burgard v. Mascoutah Lumber Co. (1955), 6 Ill. App. 2d 210, 219, 127 N.E.2d 464, 468.]” 11 Ill. App. 2d at 302-04, 137 N.E.2d at 82.

A correct interpretation of Miller reveals that declaratory judgment is proper if an actual controversy exists and the question involved is not moot. This issue is similar to the earlier argument defendants made that plaintiff was estopped by the former foreclosure judgment from bringing the declaratory judgment proceedings. Our holding on this issue therefore reflects our earlier holding that plaintiff was not so barred. We find that a controversy existed as to plaintiff’s lien rights against the property in question, and the question was not mooted by the foreclosure action which excluded Dennis Berkbigler.

For the foregoing reasons, the summary declaratory judgment of the circuit court of Effingham County is affirmed.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    MID-AMERICA BANK AND TRUST COMPANY, Adm’r of the Estate of David Struempf, a Disabled Adult, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant and Separate Appellee (Evelyn K. Almeter, Ex’x of the Estate of James K. Almeter, Third-Party Defendant-Separate Appellant).
    Fifth District
    No. 5—90—0082
    Opinion filed February 14, 1992.

      Michael J. Pitzer, John J. Hartung, and Anne M. Oldenburg, all of Brown, James & Babbitt, P.C., of St. Louis, Missouri, for appellant Commercial Union Insurance Company.
    Allan M. Goodloe, Jr., and Daryl G. Clarida, both of Thompson & Mitchell, of Belleville, for appellant Estate of James K. Almeter.
    Edward J. Kionka, of Carbondale, Jerald J. Bonifield, of Belleville, and G. Patrick Murphy, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is an appeal of a verdict against an insurance company in a case brought for negligence and for bad faith in refusing to settle a claim within the policy limits.

A truck hit a 13-year-old boy; he suffered brain damage. The truck was insured by Commercial Union under a policy that had limits of $50,000 per person and $100,000 per occurrence. Plaintiff’s attorney sent a letter offering to settle for the policy limits. The offer remained open but was never accepted.

Commercial Union hired third-party defendant as its lawyer. On the advice of Commercial Union, and because of the possibility of damages exceeding the policy limits, the owner of the truck hired his own attorney.

Plaintiff, almost three years later on May 3, 1980, again offered to settle for $50,000. The third-party defendant instead offered $30,000, “take it or leave it,” but did not tell the truck owner that he was going to offer this amount. Plaintiff was offended and withdrew all offers.

Six days later, third-party defendant offered to pay $50,000, stating that he always had had authority to settle for that amount. Plaintiff refused to accept the offer and the case was tried. A jury awarded plaintiff $911,536.50, an amount in excess of the coverage.

Thereafter, the owner of the truck settled with plaintiff. As part of that settlement, he assigned to plaintiff all claims he had against Commercial Union in exchange for plaintiff’s covenant not to execute the $911,536.50 judgment against him.

Plaintiff, then, sued Commercial Union for negligence and for the tort of bad faith in settling the original claim.

Commercial Union filed a third-party complaint against its lawyer, third-party defendant, whose estate has since been substituted, seeking indemnity and contribution. A jury awarded plaintiff $686,536.00, being the unpaid balance of the previous judgment, and also found Commercial Union to be 75% at fault and third-party defendant 25% at fault. The circuit court entered judgment and also awarded attorney fees and costs and ordered interest assessed against Commercial Union and third-party defendant at 9%, to be computed from December 3,1983, for a total judgment of $1,099,791.95.

Both Commercial Union and third-party defendant make several arguments on appeal. We need only consider four: (1) that the circuit court erred by denying Commercial Union’s motion for directed verdict; (2) that the circuit court erred by dismissing Commercial Union’s indemnity claim; (3) that the circuit court erred by allowing certain expert testimony; and (4) that the circuit court erred in awarding post-judgment interest. We affirm in part, vacate in part and remand with directions.

Commercial Union first argues that the circuit court erred in denying its motion for directed verdict. We disagree and affirm.

A court properly grants a directed verdict when “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14), and in considering the motion for directed verdict, the opponent is entitled to the benefit of all reasonable inferences that may be drawn from the evidence. (Wallis v. Villanti (1954), 2 Ill. App. 2d 446, 120 N.E.2d 76.) Having examined the evidence and inferences to be drawn therefrom, we cannot say that the evidence so overwhelmingly favored Commercial Union that no verdict for plaintiff could ever stand.

There is evidence in the record from which a jury could infer that Commercial Union acted negligently or in bad faith. Plaintiff’s letter to the owner of the truck in July 1977 stated, “[w]e want to indicate to you that we would settle this case now for the amount of the insurance policy limits, even though the injuries in this case may justify a jury verdict in excess of the average policy.” Eight days later, Commercial Union’s claims adjuster reported to the company that, “this case *** has a value of upward to $1,000,000.” The adjuster also indicated that the chance of losing exceeded 10%, and he recommended that Commercial Union increase its reserve to $50,000.

A memo dated October 19, 1977, from the branch claims manager to the claims supervisor, stated in part:

“The next thing I want done and I want it done immediately, is to acknowledge receipt of the lawyer’s lien letter wherein he makes policy limits demand and advise him that we cannot give consideration to his policy limits demand at this time because we have no information in our file in regards to any specials or any medical reports in our file to indicate what the boy’s injuries are. I think we pretty well know what the injuries are but I think we can put the lawyer off on his policy limits demand so that we are not in bad faith by telling him that we have nothing to support his policy limits demand.”

This memo also recognized the possibility of a million-dollar verdict, that there was at least a 30% to 40% chance of losing, and gave authority to settle for $50,000.

Commercial Union argues that it offered to pay the policy limits, and six days later plaintiff refused that offer, there being no change of circumstances during that six-day period that would justify refusal, and therefore, plaintiff failed to prove a cause of action. We disagree. Commercial Union’s argument asks us to focus only on that six-day period but to ignore the three-year period wherein plaintiff had an offer to settle outstanding. This we cannot do, because this three-year period is relevant, since it, together with the above memoranda and the statement, “30,000, take it or leave it,” is the very essence of plaintiff’s claim.

In negotiating settlements in which recovery may exceed policy limits, the insurer must give the interest of the insured consideration at least equal to its own. (Cernocky v. Indemnity Insurance Co. (1966), 69 Ill. App. 2d 196, 207, 216 N.E.2d 198, 204; Edwins v. General Casualty Co. (1979), 78 Ill. App. 3d 965, 397 N.E.2d 1231.) A cause of action against an insurer exists if the insurer’s refusal to settle a claim within the policy limits amounts to negligence, or bad faith (Cernocky, 69 Ill. App. 2d 196, 216 N.E.2d 198), and when it does, the insurer may be held liable for the entire judgment entered against the insured and cannot complain of its amount. (La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.) In the case at bar, Commercial Union was aware of the offer, the extent of the injury, the possibility of bad faith, the possible personal liability of the owner of the truck, and the risk of excess liability if the case were tried. For almost three years there was a clear opportunity to settle within the policy limits, but Commercial Union refused. We conclude that the circuit court properly denied the motion for directed verdict.

The second argument we consider is whether the circuit court erred in dismissing Commercial Union’s indemnity claim. Commercial Union argues that it is entitled to indemnity from third-party defendant based on vicarious liability. We, however, agree with American National Bank & Trust Co. v. Bransfield (1991), 216 Ill. App. 3d 494, 576 N.E.2d 1013, which held that “the effect of the Contribution Act [(Ill. Rev. Stat. 1989, ch. 70, par. 302)] was to supersede implied indemnity actions based upon vicarious liability.” (216 Ill. App. 3d at 500, 576 N.E.2d at 1017.) Therefore, the circuit court properly dismissed Commercial Union’s indemnity claim.

We next address whether the circuit court erred by allowing testimony of an expert who had been called as a witness by the third-party defendant. On direct examination, the expert was asked his opinion on proximate cause, third-party defendant intending thereby to prove that the proximate cause was the handling of the claim by Commercial Union. Commercial Union objected on these grounds, asserting that the expert had stated in a prior deposition that he had no opinions with respect to Commercial Union, that the expert had not been retained to evaluate the conduct of Commercial Union, and that no effort had been made to supplement previous expert discovery. The objection was sustained.

Plaintiff, on cross-examination, asked the expert whether it was his opinion that Commercial Union had mishandled the settlement negotiations. Commercial Union’s objection was overruled. The expert then testified that it was his “professional opinion that Commercial Union had fouled up the handling of the claim before [May 3, 1980].” Commercial Union claims that this statement went beyond the scope of third-party defendant’s direct examination and was also a violation of Supreme Court Rule 220 (134 Ill. 2d R. 220), in that this opinion had never been disclosed. This testimony, indeed, was both beyond the scope of direct examination and a violation of Rule 220 and was erroneously admitted.

Paragraph (d) of Rule 220 limits the scope of an expert’s testimony to opinions expressed in response to discovery. (134 Ill. 2d R. 220 (d).) Plaintiff’s questioning on a matter not disclosed in discovery, even though the expert was not its witness, circumvents the purpose of the rule, i.e., “to permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries.” (134 Ill. 2d R. 220, Committee Comments, at 182.) Clearly, third-party defendant could not elicit this testimony from his expert regarding Commercial Union, because it had not been disclosed. Although it is true in the strict sense that plaintiff was not a party to the third-party claim and, therefore, might not be considered Commercial Union’s “adversary” in Commercial’s claim against the third-party defendant, and although the rule speaks of “direct” testimony, and this was cross-examination, the fact still remains that plaintiff was Commercial’s adversary in the case in which the third-party claim was brought. In a large sense, however, the test for admissibility should not depend upon the formal alignment of the parties, but rather should be determined by whether the undisclosed opinion is sought to be admitted against the party who has relied upon Rule 220 and who claims the benefits thereof. Permitting plaintiff to elicit this testimony from third-party defendant’s expert was erroneous, because that testimony was admitted against Commercial Union, the party who was to benefit from the exclusion of expert opinions not disclosed under Rule 220. Therefore, the circuit court erred in allowing cross-examination which deprived Commercial Union of the benefits and protections afforded by the Rule 220.

We must now consider, however, whether that error requires reversal. The question, then, is whether the outcome would have been the same had the circuit court correctly sustained Commercial Union’s objection. Our review of the record establishes that Commercial Union’s liability is not exclusively dependant upon that evidence, but rather is supported by other evidence in the record. We cannot say, however, that had that testimony been excluded, the apportionment of fault between Commercial Union and third-party defendant would have been the same, for it is impossible to determine whether this testimony diminished or increased the liability of either third-party defendant or Commercial Union, or had any effect at all. We, therefore, vacate and remand the third-party claim for retrial on the apportionment of fault only.

Lastly, we consider whether it was proper for the circuit court to award post-judgment interest from December 3, 1983, against both Commercial Union and third-party defendant.

The circuit court followed the statute when it awarded interest. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—1303.) The statute provides in pertinent part:

“Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1303.

A “judgment” for purposes of section 2 — 1303 has been defined as “a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219.

Commercial Union argues that the above statute does not apply to this case, because the issues in the case at bar are different from those presented in the underlying case between plaintiff and the truck owner, and that the rights and liabilities of Commercial Union were not fixed until the jury rendered its verdict in this case. They argue further that the covenant not to execute that plaintiff gave to the truck owner waived all rights plaintiff had against the truck owner, and because the truck owner can no longer be liable for any interest, neither can Commercial Union.

Commercial Union relies on Industrial Indemnity Co. v. Vukmarkovic (1990), 205 Ill. App. 3d 176, 562 N.E.2d 1073, appeal denied (1991), 136 Ill. 2d 544, 567 N.E.2d 332, in asserting that the post-judgment interest statute does not apply. We disagree. In Industrial Indemnity, a judgment was obtained against an insured and an insurance company that had agreed to defend the case. After receiving the policy limits from that insurance company, plaintiff sought to collect his judgment against the insured by garnishing a policy issued by Industrial Indemnity. Industrial Indemnity filed a declaratory judgment action. In deciding that Industrial Indemnity was not liable for post-judgment interest, the appellate court noted that Industrial Indemnity was not a party defendant to the prior lawsuit and stated that “the post-judgment interest statute should not be expanded to require Industrial, a ‘stranger’ to the personal injury judgment, to indemnify Vukmarkovic.” (Industrial Indemnity, 205 Ill. App. 3d at 191, 562 N.E.2d at 1083.) Although Industrial indeed was a “stranger” to the personal injury judgment there, we find that Commercial Union was not a “stranger” to this personal injury lawsuit. Commercial Union agreed to and was contractually obligated to defend the owner of the truck. Commercial Union rightfully investigated the claim, knew of the liability, acknowledged it in internal memoranda, and participated in settlement negotiations, the failure of which was largely their fault, hardly the acts of a “stranger,” or an interloper.

If an insurance company commits fraud, negligence, or bad faith in refusing to settle a claim within the policy limits, it may be liable for the full amount of the judgment, regardless of policy limits (DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 37-38, 351 N.E.2d 302, 311), and we see no reason why in this case, a tort action, that judgment should not include interest. Here, the covenant not to execute did not extinguish the claim but was instead part of the consideration for assignment. Had there not been a covenant not to execute, plaintiff would still be entitled to recover interest, and that interest would have come from either the owner of the truck or from Commercial Union or both. We, therefore, affirm the award of interest against Commercial Union.

While we find Commercial Union is liable for interest, we conclude that the circuit court erred in ordering third-party defendant to pay interest, because he was not a party to the original action and was indeed a “stranger” to the underlying cause of action. (See Industrial Indemnity, 205 Ill. App. 3d 176, 562 N.E.2d 1073.) The only judgment against third-party defendant was rendered November 2, 1989, and his rights and liabilities were not fixed until that time. On remand of the third-party claim, then, if third-party defendant is found to be liable to Commercial Union for contribution, third-party defendant will be liable for interest from November 2,1989, only.

Affirmed in part; vacated in part and remanded with directions.

LEWIS and RARICK, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH JUSTICE CHAPMAN,

text:
    SHIRLEY DUNGEY et al., Plaintiffs-Appellants, v. HAINES AND BRITTON, LTD., et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0100
    Opinion filed February 14, 1992.

      CHAPMAN, J., dissenting.
    Stephen J. Stephenson, of Nelson, Bement, Stubblefield & Rich, of Belleville, for appellants.
    Rebecca J. O’Neill, of Mitchell, Brandon & Schmidt, of Carbondale, for appellees.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Shirley Dungey and John Dungey, appeal from an order of the circuit court of Randolph County granting summary judgment in favor of defendant, Economy Fire and Casualty Company (hereinafter Economy). In this cause, plaintiffs raise a single issue, namely, whether the trial court erred in granting summary judgment for Economy. We reverse and remand.

The facts are not in dispute. In 1981, plaintiffs attempted to get insurance coverage through an insurance broker, Haines & Britton, Ltd. (hereinafter Haines), and another defendant who is not a party to this appeal. On April 22, 1981, policy number EF12 — 308776 was issued to plaintiff Shirley Dungey. At that time, Shirley signed a named drivers exclusion endorsement excluding her husband, John, from coverage under that policy. John was able to obtain coverage through Haines but was insured by another company. Shirley Dungey renewed her policy one year later, on April 22, 1982, and at the request of Economy, again signed a named drivers exclusion endorsement excluding her husband, John, from coverage under that policy.

On November 3, 1983, Economy issued another policy to Shirley on a 1970 Ford Mustang, which listed her son, Brian, as the primary driver. Economy did not request, nor did Shirley sign, a named drivers exclusion endorsement excluding her husband from this new policy covering the Ford Mustang. Shirley Dungey periodically renewed both insurance policies. Economy never again required her to sign another named drivers exclusion endorsement. When she renewed her policy, she received a declaration page from Economy which contained a series of numbers under the “Endorsements” section. The series of numbers indicated that John Dungey was excluded from the policy, but this could only be determined by referring back to the policy. The declaration page never specifically, by language, stated that there was an exclusion for John.

On May 20, 1985, plaintiffs traded vehicles and purchased a 1985 Chevy van. Shirley Dungey informed Haines that John would be the primary driver of the van. The title to the van was registered to both Shirley and John. Insurance on the van was obtained through Economy by converting existing policy number EF12 — 308776, obtained by Shirley Dungey on April 22, 1981. Shirley was not asked to sign a named drivers exclusion endorsement when the conversion occurred. At the same time the policy was converted to cover the van, Economy issued policy number 12 — 500793 to John Dungey, which insured his 1984 Chrysler Laser.

On May 29, 1986, John was driving the 1985 Chevy van when he was involved in a one-car accident. The van was completely destroyed, and Economy refused to pay plaintiffs’ claim for damages on the basis that John Dungey was excluded from coverage under policy number EF12 — 308776. Plaintiffs filed suit to recover damages from Haines and Economy. Plaintiffs and Economy both filed motions seeking summary judgment. In their respective motions, defendants implicitly stated that there were no issues of material fact and that each was entitled to summary judgment as a matter of law. The parties’ motions for summary judgment apparently motivated the trial court to shift its attention from issues of fact to issues of law. After considering both plaintiffs’ and Economy’s motions, the trial court entered summary judgment in favor of Economy, prompting plaintiffs to bring this appeal.

The issue we are asked to consider is whether the trial court erred in granting summary judgment for Economy. Plaintiffs contend that Economy’s conduct created an ambiguity as to whether an exclusionary clause was in effect and that the ambiguity must be construed in favor of plaintiffs. They argue that a reasonable person could draw the inference that John Dungey was covered to drive the 1985 van, first, because Economy issued an insurance policy to John Dungey on the 1984 Chrysler Laser and simultaneously insured plaintiffs’ 1985 van after notice that John would be the primary driver, and, second, because the last named drivers exclusion endorsement was signed by Shirley Dungey on April 22, 1982, and the declaration pages sent to plaintiffs periodically did not state there was an exclusion except through a series of numbers which plaintiffs would have to decode by referring back to the policy. Economy replies that the exclusionary clause is clear and unambiguous and, therefore, the trial court did not err in granting summary judgment in Economy’s favor. While we agree that the original named drivers exclusion endorsement was unambiguous, we cannot agree that Economy’s actions subsequent to the signing of the 1982 endorsement did not create an ambiguity.

Summary judgment may be granted only when the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005.) A motion for summary judgment and its supporting documents must be construed strictly against the moving party and liberally in favor of the opponent. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 214, 531 N.E.2d 1358, 1363.) Summary judgment is a drastic method of disposing of cases and should be granted only when the movant’s position is clear and free from doubt. 125 Ill. 2d at 215, 531 N.E.2d at 1363.

When an exclusionary clause in an insurance policy is relied upon to deny coverage, its applicability must be clear and free from doubt. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 769, 525 N.E.2d 539, 541.) The burden of showing that a claim falls within the exclusion rests with the insurer for two reasons: (1) the insured’s intent in purchasing an insurance policy is to obtain coverage, so any ambiguity jeopardizing such coverage should be construed consistent with the insured’s intent, and (2) the insurer is the drafter of the policy and could have drafted the ambiguous provision to be clear and specific. (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 909, 492 N.E.2d 504, 507.) In determining if an ambiguity exists, the provision in question must be read in its factual context and not in isolation. (Bassett, 170 Ill. App. 3d at 769, 525 N.E.2d at 542.) We believe that the instant case involves more than the interpretation of a contract. The question is whether Economy’s acts would lead a reasonable person to believe that John Dungey was covered under policy number EF12 — 308776.

In the case at bar, only if the exclusionary provision is read in isolation is it clear that John Dungey was excluded from the policy; if all the facts of this case are considered as a whole, a reasonable person could conclude that John Dungey was insured through Economy to drive the van under policy number EF12 — 308776. Shirley Dungey was not asked to sign a named drivers exclusion endorsement after April 22, 1982. From that time until the date of the accident in question, Economy had annually furnished Shirley with a declaration page on policy number EF12 — 308776. The declaration page did not specifically refer to the exclusion of John from the policy but merely recited a series of numbers which required the reader to refer back to the original policy in order to determine that an exclusion existed. When plaintiff obtained the 1985 Chevy van, Shirley informed Haines that John would be the primary driver. Economy converted Shirley’s old policy, EF12 — 308776, to cover the van. Simultaneous with the conversion, Economy issued a policy to John insuring a 1984 Chrysler Laser. When considered in the light most favorable to plaintiffs, we believe that a reasonable person could believe that John Dungey was covered under policy number EF12 — 308776.

Along with the actions of Economy, the policy itself is a source of ambiguity in the instant cause; a reasonable person reading the policy cannot tell within the four comers of the document what is excluded. The policy was entirely drafted by Economy, which as the drafter was in the position to avoid ambiguities. Economy could have specifically stated that John was excluded under policy EF12 — 308776, required Shirley to sign a named drivers exclusion endorsement when the policy was converted to cover the 1985 van, or both. In this case Economy created the ambiguity within the policy itself and cannot either show such ambiguity does not exist or construe the ambiguity against its insured.

Because of the ambiguity created by Economy both by its actions and within the policy itself, we find that there is a genuine issue of material fact concerning the intent of the parties as to whether John Dun-gey was covered by policy number EF12 — 308776. Therefore, we find that the trial court erred in granting summary judgment for Economy.

For the foregoing reasons, the order of the circuit court of Randolph County is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

HOWERTON, J., concurs.

JUSTICE CHAPMAN,

dissenting:

I respectfully cast my dissent in this cause for the reason that the majority has chosen to ignore a basic precept of contract law: When the language of a contract is unambiguous, the express provision governs and there is no need for construction or inquiry as to the intention of the parties. (P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 203, 492 N.E.2d 1288, 1291.) It is clear that the majority recognizes that an ambiguous contract is one capable of being understood in more than one sense (McWhorter v. Realty World-Star, Inc. (1988), 171 Ill. App. 3d 588, 525 N.E.2d 1205), and specifically that a provision in an insurance policy is deemed ambiguous if it is subject to more than one reasonable interpretation. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539.) However, the majority strays from accepted notions of insurance contract interpretation when it proceeds to create an ambiguity where none exists.

Shirley Dungey was issued an insurance policy in 1981. At that time she signed a named drivers exclusion endorsement excluding her husband from coverage under that policy. Shirley Dungey renewed her policy in 1982 and once again signed a named drivers exclusion endorsement excluding her husband from coverage under that policy. In 1983, and periodically thereafter, Shirley Dungey renewed her insurance policy. At all times when her policies were renewed Dungey received a declaration page from Economy which contained numbers referring back to the original policy and the exclusion for her husband. Although the declaration page never specifically stated that her husband was excluded from coverage, the exclusion could be determined by referring to the numbers on the policy as they referred back to the original exclusion. Here the exclusionary clause is not subject to more than one reasonable interpretation. The clause plainly excluded John Dungey from coverage under the insurance policy. I cannot conclude that the trial court’s determination was in error.


author: PRESIDING JUSTICE McCULLOUGH

text:
    DOUGLAS ROUSEY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Central Illinois Public Service Company, Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—91—0333WC
    Opinion filed January 30, 1992.
    Rehearing denied March 12, 1992.

      Gary A. Brown and Liesl G. Smith, both of Sorting, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellant.
    James C. Serkland, of Serkland & Muelhausen, of Chicago, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

On September 20, 1983, claimant fell from a 35- to 40-foot height and suffered a depressed skull fracture, a contrecoup brain injury to the left side and a fractured right clavicle. Following five months of hospitalization, claimant returned home, where he has lived continuously to the present time. The parties stipulated claimant is permanently and totally disabled due, in part, to his permanent brain injuries. The arbitrator and Industrial Commission (Commission) denied claimant’s wife’s request for reimbursement for past and prospective maintenance expenses. The circuit court reversed, concluding claimant’s spouse’s household services should not be considered gratuitous simply because she is married to claimant and, although claimant’s visible injuries are minimal, his brain injury requires that he be “supervised” on a full-time basis. Respondent appeals, contending the circuit court’s award of maintenance expenses for claimant’s wife’s services is against the manifest weight of the evidence.

The facts are not in dispute. After claimant was released from the hospital he returned home to his wife and two children. They subsequently moved in with claimant’s father and have lived together continuously since early 1985.

Claimant’s wife testified at arbitration that claimant operates at the level of a six to seven year old and requires constant care and attention out of fear he might do something inadvertently harmful to himself. On one occasion, claimant, who had been an electrician, tried to fix a lamp but accidentally set it on fire.

Despite the guidance and supervision claimant’s wife provides, claimant is able to leave the house on his own to visit nearby friends and an automobile repair garage a short distance from the house. Claimant is also capable of driving an automobile and can hunt and use a weapon. At home, claimant helps out with household chores by folding clothes and washing windows. He is able to dress and feed himself and tend to his own personal hygiene.

Claimant’s only noticeable physical deficit is a limp and the fact he is sometimes unsure of his footing when he walks or steps, although he does not use any medical appliances such as a cane or a wheelchair. Mentally, claimant can become agitated and frustrated and the presence of his two young children sometimes bothers him. He is unable to concentrate for periods of time in excess of an hour or two.

Claimant’s spouse testified he has received no medical treatment since June 1985 and that she has had no formal medical training and provides no medical assistance of any sort to him. She cooks meals for the entire family and cleans house but conceded she would do so irrespective of whether claimant was injured. She also handles all the family finances and had done so to a large extent prior to the accident. Reimbursement was sought for what claimant’s spouse described as “guarding services” because an individual needs to be with claimant in the home to watch him and help him if he requires it.

The testimony of Dr. Eilers, who had examined claimant in 1985, was admitted. Claimant suffers from significant cognitive deficits due to his injuries. Because of what the doctor termed a classic traumatic brain injury pattern, claimant can become agitated and is not completely independent but needs supervision for his own safety. His judgment is sometimes subject to question and he suffers from recent memory impairment. Claimant nonetheless is alert and oriented and is able to comply with certain commands which require only one or two steps. He can become frustrated, however, when more complex tasks are required.

Dr. Eilers believes that claimant’s condition requires that someone be with him at all times because, although he does not need “guarding,” he could be impulsive because of his brain damage and do things such as forget to turn off the gas on the stove. The person attending claimant would not, in Eilers’ opinion, need any medical training. Although claimant could become aggressive, Eilers was unaware of any actual episodes of violent behavior demonstrated by claimant. In Eilers’ words, the supervision claimant requires is akin to that one would provide a child.

The arbitrator denied the spouse’s claim for maintenance expenses because she was not performing necessary medical, surgical, or hospital services within the meaning of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(a)). Rather, the arbitrator concluded she was performing the normal duties of a spouse. The Commission affirmed the decision of the arbitrator. On review, the circuit court reversed that aspect of the Commission’s decision, concluding claimant’s brain injury required supervision on a full-time basis and such care should not be considered gratuitous simply because claimant is married to the individual providing the care.

On appeal, respondent contends the Commission’s determination that claimant’s wife was not entitled to maintenance care reimbursement was not against the manifest weight of the evidence.

Section 8(a) of the Act provides in pertinent part:

“If as a result of the injury the employee is unable to be self-sufficient the employer shall further pay for such maintenance or institutional care as shall be required.” Ill. Rev. Stat. 1989, ch. 48, par. 138.8(a).

The parties stipulate that claimant is permanently and totally disabled from pursuing further employment with respondent. They also agree that claimant suffers from a substantial brain injury, although he has made a remarkable recovery given the nature of the accident and the severity of the injuries. It is also clear claimant is self-sufficient to the extent he is able to tend to his basic needs and get about in the community on his own to a limited extent. He can feed and clothe himself without assistance. He can leave the house for trips in the neighborhood unattended. He drives an automobile, hunts, and performs certain limited routine household chores. He interacts with his children and is able, to a limited extent, to enjoy certain routine pleasures such as watching television.

Nevertheless, claimant’s mental capacity is limited and he must be looked after to the extent one would supervise a child. The fear is that claimant might undertake some task beyond his capabilities and accidentally injure himself. Claimant’s spouse, however, provides no medical assistance of any sort to claimant and none is con-cededly required.

In Burd v. Industrial Comm’n (1991), 207 Ill. App. 3d 371, 566 N.E.2d 35, this court considered the issue of when home care services were appropriately compensated under section 8(a) of the Act. In Burd, the services were provided by a nonrelative, a fiancee. Claimant’s work injury rendered him a paraplegic and his treating physician prescribed nine home modifications to allow claimant to live independently without nursing care. Because of the insubstantial value of claimant’s home, however, these changes were never made. According to claimant’s doctor, he could not exist in the house without the assistance of either a “home care service or a ‘significant other.’ ” (Burd, 207 Ill. App. 3d at 374, 566 N.E.2d at 37.) When the employer-paid assistance from home care services was terminated, claimant’s live-in fiancee began assisting claimant in entering and exiting the home, tending to claimant’s personal hygiene, and performing general housekeeping tasks.

In reviewing whether an award for these home care services was appropriate, the court reviewed cases from other jurisdictions and determined that the record supported the award. Significant to Burd were two factors, the type of duties and the status of the party rendering them. In that case, claimant required 24-hour-per-day nursing care because of his paraplegia, which his fiancee was not legally obligated to provide. In the instant case, the assistance rendered to claimant was provided by his spouse and these activities were described alternatively as “guarding” services or the passive supervision which a baby-sitter might provide for a child.

The circuit court concluded that these services constituted something other than ordinary household duties and it was inappropriate to deny a claim for maintenance services simply because a spouse was providing them. We disagree.

A majority of cases have recognized the general rule that shopping, cooking, and other household services performed by a spouse or other family members are considered gratuitous and cannot form the basis for an award for attendant care services. (DeLong v. 3015 West Corp. (Fla. App. 1986), 491 So. 2d 1306.) The rationale for denying compensation for ordinary household duties when performed by a spouse is that a spouse performs such activities for both parties as part of the marital relationship. (Currier v. Roman L. Hruska United States Meat Animal Research Center (1988), 228 Neb. 38, 421 N.W.2d 25.) As one court observed, one spouse has agreed to care for the other “ ‘in sickness and in health.’ ” (Spiker v. John Day Co. (1978), 201 Neb. 503, 530, 270 N.W.2d 300, 314.) For this reason, a distinction has been drawn, for compensation purposes, based on the status of the individual performing those services. Although not necessary to the decision in Burd, this court embraced that concept when it stated that mere household duties provided by a spouse who is otherwise “obligated” to perform them by virtue of the marital relationship are not compensable, whereas a different result may obtain when an individual not legally or otherwise required to perform the services does so.

Notwithstanding claimant’s wife’s status as his spouse, she argues that the services she performs are more than mere household duties. While the evidence supports the conclusion that someone ought to be with claimant to watch over him, it is equally clear that the supervision offered is precisely the type which someone might give to a child in the home. There is also evidence that claimant is at least partially independent to the extent he is able to travel in the neighborhood, drive a car unsupervised, and handle a weapon when hunting.

Professor Larson has said that while “attendance in the nursing sense is covered by statutes providing for reimbursement for maintenance expenses, a line has been drawn between nursing attendants and services that are, in essence, housekeeping. (2A A. Larson, Workmen’s Compensation §61.13(d)(4), at 10 — 892 (1989).) It is conceded that claimant is not receiving any medical or nursing services of any sort.

The question of whether the kind of assistance claimant’s spouse provides constitutes maintenance within the meaning of the Act is one of fact for the Commission to determine. The fact that the injury has affected claimant’s mental processes, standing alone, is not determinative. In the absence of medical care or active attendance to claimant’s basic needs, the Commission’s determination that claimant’s spouse is performing household duties which are not compensable within the meaning of section 8(a) of the Act is not against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Sangamon County, insofar as it overturned the Industrial Commission decision on this issue, is reversed, and the Industrial Commission’s decision is reinstated in its entirety.

Affirmed in part; reversed in part; Industrial Commission order reinstated.

EGAN, WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF JODE ANN NUECHTERLEIN, Petitioner-Appellee, and LOUIS STANLEY NUECHTERLEIN, Respondent-Appellant.
    Fourth District
    No. 4—91—0147
    Opinion filed January 30, 1992.
    —Rehearing denied March 9, 1992.

      Wayne R. Galomb, of Springfield, for appellant.
    Thomas R. Appleton and Elizabeth W. Anderson, both of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The parties were married on October 11, 1980, and separated on June 9, 1988. On September 16, 1988, petitioner petitioned for dissolution of marriage and for custody of their two minor children. The dissolution judgment awarded petitioner custody of the children and apportioned marital property and debts of the parties. Respondent appeals, arguing (1) the trial court erred in refusing to enforce the parties’ premarital agreement to raise their children Lutheran, (2) the trial court abused its discretion in imposing all transportation responsibilities for visitation on him, and (3) the trial court abused its discretion when it apportioned virtually all of the parties’ marital debts to him. We affirm the trial court’s ruling on these issues.

A. Religious Training

At trial, respondent testified both children were baptized at the Lutheran church in Sawyer, Michigan, and regularly attended the church. Respondent indicated that prior to their marriage the parties discussed the religious education of their children and orally agreed to raise any future children in the Lutheran faith. Respondent is Lutheran, and although petitioner is Catholic, respondent asserted she attended the Lutheran church, practiced the Lutheran faith following their marriage, and raised the children Lutheran. Petitioner confirmed discussing with respondent the religious upbringing of their children and specifically admitted agreeing with him that they would raise their children as Lutherans. Respondent requested the court make a provision providing for the continuation of the religious training of the children in the Lutheran faith.

The petitioner’s lawyer asked the respondent to explain the difference between the Catholic and Lutheran religions. Respondent’s counsel objected to the inquiry. The judge responded that “regardless of what [respondent] said or did not say or what they may have said prior to their marriage, [the court] couldn’t make a determination as to who should require the children to go to what particular [religion] ***. That’s within the purview of whoever is the custodial parent.” Respondent’s attorney argued that the court did have the authority to order the custodial parent to raise the children in a particular faith. The court stressed that absent a written agreement by the parties, it did not have the authority to require the custodial parent to take the children to the Lutheran church or to make a determination that a child has to go to a particular church. Respondent continued to insist the court had the authority to enforce the agreement. Under section 502 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 502), the court noted terms of agreements providing for the support, custody, and visitation of children were not binding on it. Therefore, regardless of whether an oral premarital agreement existed, the court stated that it was inappropriate under section 502 of the Act to base an order requiring a child to be raised according to the tenets of a particular religion upon the parties’ premarital agreement.

B. Travel Involved In Visitation

Prior to their separation, the parties resided in Three Oaks, Michigan. Upon separation, petitioner and the children moved to Springfield, Illinois. Respondent maintained an apartment in Chicago, where he was employed, and also maintained the marital residence in Michigan. Based on the temporary custody order, respondent had alternate weekends of visitation, during which he took the children to Michigan. Respondent testified that because the children now reside with their mother in Springfield, Illinois, he has to drive approximately 800 miles to see the children for 48 hours. He had to pick the children up Friday at 6 p.m. in Springfield and return them by 6 p.m. on Sunday. He asserted it was impossible to leave work at 5 p.m. in Chicago and pick the children up by 6 p.m. Moreover, he stated this process was mentally draining and exhausting for him. Occasionally, his job allowed him to be in Springfield on Friday so he could pick the children up for visitation. Further, he asserted that petitioner, on two or three occasions, had driven the children to Pontiac, Illinois, where the parties exchanged the children. However, respondent stated petitioner had subsequently refused to continue sharing in the driving responsibilities because he “would [not] allow her to bifurcate the matter in court and get remarried.” The times when she had met him in Pontiac, she had driven either her father’s car or that of a friend. The reason she borrowed a vehicle was because the truck she had been allocated pursuant to stipulation was uncomfortable for three people to sit in for an extended period of time. Respondent requested that the court order petitioner to share in the driving responsibility for the children’s visitation with him.

Respondent testified that the debts were incurred to get the “finer things in life.” Because he did not feel he could do this with his income from his State job, he had opened an antique business. Since he did not have the capital to buy the antiques, he had used his personal credit cards and the credit based on the cards to purchase the items for the business. He averred petitioner had been actively involved in the antique business and was aware the debts were being incurred. Additionally, he stated the credit cards were issued in both their names, and petitioner used the cards as well.

Conversely, petitioner testified she only had one credit card at the time of the separation, and the card was from MBNA. Also, she stated she had made purchases on the MBNA account but never participated in making purchases on any of the other accounts. She testified respondent had purchased the antiques, and she had contributed no money except $1,000 which she made by selling crafts.

The $11,000 owed to First Source Bank was a loan to purchase respondent’s BMW. The loan was secured by the BMW and the pickup truck. Prior to the loan, the truck was lien free. Additionally, to purchase the house in Three Oaks, Michigan, the parties borrowed $50,000 from their respective families.

Respondent works for the Department of Revenue, Board of Appeals, as an administrator. His monthly net income is approximately $2,800. Petitioner works part time as a school aid and makes approximately $200 a month.

D. Judgment Order

In a letter dated October 22, 1990, the court found it was in the best interest of the children to award the petitioner sole and permanent custody of the children. The court stated that the petitioner would determine the religious training of the children and “[f]or the [c]ourt to order otherwise would be going beyond the scope of religion vis-a-vis ‘best interest of the children’ and would be violative of both the [Act] and constitutional safeguards.” Additionally, the court awarded the respondent visitation and indicated that he would be responsible for all the children’s transportation to and from visitation. In regard to the marital debts, the court ordered petitioner to pay half the MBNA account, and respondent to pay all of the other preseparation debts.

Further, the court ordered the Michigan house be sold. The court distributed the proceeds of the sale based on the stipulated value of the house. The distribution was as follows:

From the $89,784 net proceeds, the court awarded $59,832 to petitioner. Respondent was to bear responsibility for any outstanding balance for real estate taxes, and he was awarded the remaining proceeds of the sale. Additionally, the court ordered the respondent to pay the petitioner $670 per month for child support and no maintenance.

The court entered a judgment order on November 2, 1990, in which it stated it was “in the best interest of the minor children that the Petitioner be granted the permanent care, custody, control and education of the minor children *** including the right to determine their religious training.” On November 30, 1990, respondent motioned for reconsideration of the order. He contended the balance of the loan due to the Katauskis was $39,253, instead of $56,251.97. Consequently, on January 18, 1991, the court amended its order and reduced the amount owed to the Katauskis to $39,253. The petitioner still received $59,832 from the net proceeds, with respondent receiving the balance. This appeal followed.

E. Analysis

Section 502(a) of the Act authorizes and promotes parties to a marriage attendant upon its dissolution to enter into written or oral agreements regarding the disposition of property, maintenance, support, custody, and visitation. (Ill. Rev. Stat. 1989, ch. 40, par. 502(a).) However, section 502(b) of the Act specifically states that agreements providing for the custody of children are not binding on the courts. Ill. Rev. Stat. 1989, ch. 40, par. 502(b).

Section 608(a) of the Act specifies that a custodial parent will determine the religious training of the children unless as otherwise agreed by the parties in writing at the time of the custody judgment, by court order, or upon motion by the noncustodial parent where the absence of a limitation would be contrary to the best interest of the children. Ill. Rev. Stat. 1989, ch. 40, par. 608(a).

Regardless of whether a premarital agreement existed in this case, we hold that it was not binding on the court because it was not the type of agreement intended to be binding under the statutory provisions. The agreements contemplated by those sections are those entered into concomitant with dissolution proceedings. Although both sections sanction agreements regarding custody and provide that particular agreements are binding and enforceable, those sections, when determining custody provisions, do not apply to agreements made prior to marriage. The reason for this is clear. In determining custody matters, section 602(a) of the Act directs the court to “determine custody in accordance with the best interest of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 602(a).) The primary consideration regarding custody is what is in the best interest of the child at the time of the custody judgment. The current state of affairs is the primary focus, not the existence of an agreement entered into years earlier. This is not to say, however, that a court may not consider a premarital agreement as a factor in its custody decision. Although it may be a relevant factor in the court’s determination, the existence of the agreement, in and of itself, is not binding.

Although premarital agreements relating to maintenance and property settlements are binding and enforceable unless unconscionable, these agreements are far different than those relating to custody. Children are far more important than the subjects of maintenance and property settlements, and the court has a duty to protect their welfare by making a careful and independent determination of custody. In doing so, a court cannot be bound by agreements entered into prior to marriage.

Moreover, since the court awarded petitioner custody, section 608(a) of the Act directs that her decision regarding the religious training of the children will control, absent a written agreement, court order or exigent circumstances. Although the judge was made aware of the religious background of the children and the request by respondent to have the children raised in the Lutheran faith, no specific ruling was made under section 608(a). In the interest of judicial economy and because the record is such that a determination may be made, we hold that there is insufficient evidence for the respondent to meet his burden to permit a finding that the absence of a limitation regarding the religious upbringing of the children would be contrary to their best interests.

In view of our ruling on this issue, there is no reason to determine whether the enforcement of the premarital agreement would violate the establishment clausa.

We turn next to determine whether the apportionment of transportation responsibilities connected with visitation to the respondent was an abuse of discretion. The trial court is vested with broad discretion in resolving issues surrounding custody. A reviewing court will not substitute its judgment for that of the trial court unless the trial court clearly acted arbitrarily and beyond the bounds of reason. (Szesny v. Szesny (1990), 197 Ill. App. 3d 966, 971, 557 N.E.2d 222, 225, citing In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 180, 478 N.E.2d 1068, 1076; In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676, 680; Head v. Head (1988), 168 Ill. App. 3d 697, 702, 523 N.E.2d 17, 21.) The mere fact that reasonable persons could reach different conclusions on the facts of the case is insufficient to find that the trial court abused its discretion; only if no reasonable person could find as the trial court did is there an abuse of discretion. Szesny, 197 Ill. App. 3d at 971, 557 N.E.2d at 225, citing In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129; In re Marriage of Ryan (1985), 138 Ill. App. 3d 1077, 1080, 487 N.E.2d 61, 63.

The trial court’s ruling was not an abuse of discretion. The ruling was supported by the fact that petitioner testified she was allocated, by stipulation, a 1982 pickup truck. She stated it was uncomfortable for three people to sit in the cab. Based on this fact alone, the trial court did not abuse its discretion.

We further find the apportionment of debts was not an abuse of discretion. Section 503(d) of the Act grants the trial court discretion to divide marital property into “just proportions,” taking into consideration all the factors listed, as well as any others deemed relevant to the case. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d); In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238, 241; In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 381, 571 N.E.2d 1135, 1142; In re Marriage of Riech (1991), 208 Ill. App. 3d 301, 308, 566 N.E.2d 826, 830.) The touchstone of proper apportionment is whether it is equitable in nature, with each case resting on its own facts. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 847, 551 N.E.2d 737, 741.) The division need not be equal. (Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.) The trial court’s discretion in these matters will not be disturbed absent clear abuse. (Riech, 208 Ill. App. 3d at 309, 566 N.E.2d at 830; In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 790, 560 N.E.2d 374, 378.) Discretion has been abused when no reasonable person could adopt the trial court’s position. Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.

Based on the factors set out in section 503(d) of the Act, specifically the disparity of income between the parties, the facts that petitioner was awarded custody and respondent did not have to pay maintenance, the division of the marital debts was not an abuse of discretion.

For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.