author: PRESIDING JUSTICE GOLDENHERSH

text:
    RUTH BRUDER et al., Plaintiffs-Appellees and Cross-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5—90—0329
    Opinion filed July 17, 1992.

      Donald V. Ferrell, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellant.
    Gordon Lambert, of Harris & Lambert, of Marion, for appellees.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Country Mutual Insurance Company, appeals from a declaratory judgment of the circuit court of Williamson County allowing plaintiffs, Ruth Bruder and Halie Bruder, a minor, by Ruth and John Bruder, her mother and father and next friends, to stack two uninsured motorist policies, namely, a business auto policy and a personal vehicle policy, making a total of $200,000 available for each plaintiff. The judgment also found plaintiffs’ choice of arbitrator permissible, a decision which defendant also appeals. Plaintiffs have appealed that portion of the judgment which disallowed stacking of two coverages found under the business auto policy. In this cause, there are three issues we must address: (1) whether plaintiffs are entitled to stack insurance coverage under the personal vehicle policy and the business auto policy; (2) whether plaintiffs are entitled to stack the two separate coverages under the business auto policy; and (3) whether defendant’s selection for arbitrator in this case is unfair to plaintiff and, as such, requires defendant’s arbitrator’s dismissal. We affirm in part and reverse and remand in part.

The parties submitted a stipulated statement of facts to the trial court which we adopt as our own. The following is a recitation of most of those facts with a few additions and deletions.

John Bruder and Ruth Bruder are husband and wife and live together as such in Carmi. Prior to February 21, 1986, defendant issued personal vehicle insurance policy number A12A1615926 on a 1985 Chevrolet motor vehicle, serial number 146053, to John and Ruth Bruder, with John and Ruth Bruder as the named insureds. That policy was renewed on February 21, 1986, for a semi-annual policy. Prior to November 9, 1985, defendant also issued business auto policy number AV1080210 on two vehicles, the first being a 1980 GMC motor ve-hide, serial number 519187, and the second being a 1983 Chevrolet motor vehicle, serial number 110700, to John Bruder, with John Bru-der as the named insured. That policy was renewed on November 9, 1985, and a policy change was effected on December 3, 1985. John Bruder operated a business in Carmi. At all times in question, both policies of insurance were in full force and effect.

On May 5, 1986, Ruth Bruder was driving the above-described 1985 Chevrolet motor vehicle, serial number 146053, insured under policy number A12A1615926, on Main Street in Carmi. As she was stopped at an intersection waiting for a red light to change, she was rear-ended by a motor vehicle driven by Angelia Carter, which was immediately behind the vehicle driven by Ruth Bruder and which, in turn, had been rear-ended by a motor vehicle driven by Eddie Crawford. Either Angelia Carter or Eddie Crawford or both were legally at fault in the collision. Both the vehicles driven by Angelia Carter and Eddie Crawford were uninsured. Both Ms. Carter and Mr. Crawford have testified in their discovery depositions that neither had liability insurance at the time of the occurrence.

As a result of the collision, Ruth Bruder sustained personal injuries and medical expenses. At the time of the collision, she was pregnant in her third trimester of pregnancy. Subsequent to the collision, she went into premature labor, and a female child, Halie Bruder, was born. Plaintiffs claim that because of her premature birth, Halie Bruder has sustained personal injuries and medical expense, which is denied by defendant. Both plaintiffs made demands to settle with defendant under the uninsured motorist provisions of the two policies of insurance in question. In the event plaintiffs were rejected, plaintiffs designated their arbitrator, attorney John Womick, of Carbon-dale. Defendant rejected plaintiffs’ offers, advising plaintiffs that it was the position of defendant that certain language in the personal vehicle policy precluded the personal vehicle policy from providing cumulative coverage with any other policy issued by defendant to Ruth Bruder or John Bruder.

Defendant appointed attorney James Bleyer of Bleyer & Bleyer of Marion as its arbitrator for arbitration under the terms of the personal vehicle policy only. Attorney Bleyer has handled many cases for defendant over the past 25 years. He does primarily defense work with defendant being a valued client to him. At the time of the hearing, Bleyer had approximately 15 cases pending in his office in which he had been retained by defendant to represent insureds of defendant and in which he would be paid by defendant for doing so. Attorney Womick, plaintiffs’ chosen arbitrator, has handled cases against defendant for many years. At the time of trial, he had claims pending against defendant, and/or its insureds for which he expected to be compensated on a contingent fee basis.

The personal vehicle policy which insured the vehicle driven by Ruth Bruder at the time of the accident had uninsured motorist coverage limits of $100,000 per person and $300,000 per accident. The business auto policy covering both the 1983 Chevrolet pickup truck and a 1980 GMC pickup truck had identical limits. The declarations page of the business auto policy showed a separate premium for uninsured motorist coverage on each vehicle.

The amended judgment issued by the trial court in the instant case found that the uninsured motorist coverage of $100,000 to Halie Bruder and the $100,000 to Ruth Bruder under the personal vehicle insurance policy number A12A1615926 could be stacked with the uninsured motorist coverage under the business auto policy number AV1080210 for a total of $200,000 per plaintiff. The trial court found that the antistacking provision in the personal vehicle policy was ambiguous. On the other hand, the trial court found that an antistacking provision in the business auto policy entitled “Our Limit of Liability” was not ambiguous and that such provision precluded the stacking of uninsured motorist coverage within the business auto policy.

I

Defendant contends that plaintiffs should not be allowed to stack any policies or coverages involved, whereas plaintiffs argue that they should be allowed to stack not only the personal vehicle policy and the business auto policy, but also the two coverages in the business auto policy. We will first consider whether plaintiffs are entitled to stack insurance coverage under the personal vehicle policy and the business auto policy. The trial court allowed such stacking, finding the anti-stacking provision in the personal vehicle policy ambiguous because such provision was found only in the personal vehicle insurance policy and not in the business auto policy. We agree with the trial court and adopt its reasoning on this issue.

When construing insurance policies, the agreement is to be enforced as written so long as it is unambiguous and only to the extent that it does not contravene public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.) However, if any provision of the policy is ambiguous, such ambiguity must be construed in favor of the insured. (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 180, 370 N.E.2d 1044, 1049; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250.) In determining whether there is an ambiguity, the provision must be read in its factual context and not in isolation. (57 Ill. 2d at 336, 312 N.E.2d at 250.) An examination of the clause at issue reveals an ambiguity.

As previously pointed out, the antistacking provision is found only in the personal vehicle policy. It reads:

“7. Other Vehicle Insurance in the Company. If this policy and any other vehicle insurance policy issued to you by this Company apply to the same accident, the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy.”

Under the policy definition section, “you” is defined as “the person named on the declarations page of this policy and that person’s spouse if a resident of the same household.” The persons named on the declarations page of the personal vehicle insurance policy are John W. Bruder and Ruth A. Bruder. The person named on the declarations page of the business auto policy is limited to John Bruder. Ruth Bruder’s name does not appear anywhere in the business auto policy. Because the named persons on the declarations pages of the two policies are different, the antistacking provision does not take effect.

Defendant argues that the case at bar is analogous to Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, in which our supreme court found that an antistacking clause was unambiguous and not contrary to public policy and, as such, defeated the insured’s contention that he was entitled to stack coverage in three uninsured motorist coverages he had purchased. We, however, find Menke distinguishable from the instant case.

The Menke case is similar in some respects. For example, in Menke, two separate policies had been issued. The first policy contained two uninsured motorist provisions covering two vehicles, much like the business auto policy here in question. The second policy covered only one vehicle, similar to the personal vehicle policy in the instant case. However, in Menke, both policies had been issued to the same named insureds, while in the instant case, as previously discussed, the declarations page contained different named insureds. Moreover, the antistacking provision in question in Menke was distinct from the instant provision. The Menke clause provided:

“ ‘With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the Named Insured by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.’ ” (78 Ill. 2d at 423, 401 N.E.2d at 541.)

Also in Menke, the same antistacking provision appeared in each of the three policies, while in the instant case the antistacking provision entitled “Other Vehicle Insurance in the Company” was found in only the personal vehicle policy.

We recognize that section 143a — 2(6) of the Illinois Insurance Code (the Code) provides an insurer is not prohibited from including antistacking provisions in uninsured or underinsured motorist policies. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2 (6).) That section of the Code is essentially a codification of that portion of Menke which holds antistacking provisions are not per se violative of public policy (Menke, 78 Ill. 2d at 425, 401 N.E.2d at 539). While our General Assembly and supreme court have determined that antistacking provisions are allowable and not per se violative of public policy, the qualification that such provisions must be unambiguous remains. We have determined that the instant provision is ambiguous, and therefore, since ambiguities are construed in favor of the insured, we agree with the trial court that the personal vehicle policy and the business auto policy can be stacked and that plaintiffs may recover under both policies.

II

The second issue we must address is whether plaintiffs are entitled to stack the two separate coverages under the business auto policy. Initially, the trial court determined that a total of $200,000 of uninsured motorist coverage was available to each plaintiff under the business auto policy. The trial court reasoned that because the declarations page of the business auto policy listed two separate vehicles without specifying the coverage for either vehicle separately, there was an ambiguity in the declarations page. Because the declarations page could be read in more than one way, the trial court found that the reading most favorable to the insured, that each plaintiff was entitled to $200,000 coverage, must be given. However, the judgment was later amended. At that time, the trial court found that the provision entitled “Our Limit of Liability” and subparagraph (l)(a) thereunder was not ambiguous, relying on Cincinnati Insurance Co. v. Miller (1989), 190 Ill. App. 3d 240, 546 N.E.2d 700. In that case, a nearly identical clause was found to be unambiguous. Citing that case, the trial court amended its original judgment and held that the total liability of defendant under the business auto policy is $100,000 for plaintiff Halie Bruder, and $100,000 for plaintiff Ruth Bruder.

In this cause, plaintiffs appeal the trial court’s decision finding plaintiffs entitled to only $100,000 each under the business auto policy. Plaintiffs argue that Cincinnati Insurance Co. is distinguishable from the case at bar and that a reading of the provision here in question will reveal an ambiguity and force a construction favorable to plaintiffs. Plaintiffs also argue that the “premium rule,” which states that insurance companies should not be permitted to collect premiums for a given amount of coverage and thereafter apply limiting clauses to reduce or to absolve their liability to insureds (Greenholt v. Inland National Insurance Co. (1980), 87 Ill. App. 3d 638, 641, 410 N.E.2d 150, 152), is applicable in the instant case.

As previously discussed, liability limitations, when clear, are to be given effect. (Menke, 78 Ill. 2d at 424, 401 N.E.2d at 541.) If such provisions are ambiguous, there is a general rule that an insured is to be favored when construing such provisions. (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 180-81, 370 N.E.2d 1033, 1049.) The premium rule has been analyzed in a similar context by our colleagues on the First District Appellate Court in Greenholt v. Inland National Insurance Co. (1980), 87 Ill. App. 3d 638, 410 N.E.2d 150, in which they stated:

“[T]he ‘Premium Rule’ is best understood as a mere explication of the general rule that the insured is to be favored in construing insurance policies. Consequently, the ‘Premium Rule’ should be viewed as a rule of construction, and should not be applied unless the insurance contract reveals an ambiguity as to the amount of coverage intended.” (87 Ill. App. 3d at 641, 410 N.E.2d at 152-53.)

As in Greenholt, the controlling question becomes whether the “Our Limit of Liability” clause in the policy is ambiguous. That clause states:

“1. Regardless of the number of covered autos, insureds, claims made or vehicles involved in the accident, our limit of liability is as follows:
a. The most we will pay for all damages resulting from bodily injury to any one person caused by any one accident is the limit of Bodily Injury Liability shown in the declarations for ‘Each Person.’ ”

This clause is similar to the limiting clause found in Cincinnati Insurance Co. v. Miller (1989), 190 Ill. App. 3d 240, 546 N.E.2d 700, a difference between the two clauses being that in Cincinnati Insurance Co. the word “endorsement” is substituted for the word “declarations.”

In Cincinnati Insurance Co., the court found the uninsured motorist endorsement to be unambiguous. Cincinnati Insurance Co. is distinguishable from the case at bar, however, because the clause in this case refers to the declarations in which ambiguity exists. As the trial court found in its original order:

“6. That the provision entitled ‘E. Our Limit of Liability’ and subparagraph la. thereunder in Part VI — Uninsured Motorist Insurance of the Business Auto Policy, said provision appearing on page 4 thereof, is ambiguous for the reason that it attempts to limit recovery for damages resulting from bodily injury to any one person caused by any one accident to ‘the limit shown in the declarations for “each person.” ’ The declarations page of the Business Auto Policy lists two separate vehicles without specifying the coverage for either vehicle separately. The court finds that said coverage under said declaration page can be read in more than one way and is, therefore, ambiguous and that construction should be given to the reading thereof most favorable to the insured. By reason of such, the court finds that coverage of $100,000 on each vehicle in said policy is available to each plaintiff and, therefore, a total of $200,000 uninsured motorist’s coverage is available to each plaintiff under the Business Auto Policy.”

The trial court in its subsequent amended judgment changed its position based on Cincinnati Insurance Co. We find that this was error and reverse; the original judgment of the trial court that the coverages under the business auto policy could be stacked was correct.

Ill

The last issue we are asked to consider is whether defendant’s selection for an arbitrator in this case is unfair to plaintiffs and, as such, requires that arbitrator’s dismissal. Plaintiffs argue they should not be required to submit their case to an attorney who is regularly hired by defendant to represent its insureds. Defendant replies that when the selection of arbitrators is viewed in the totality of circumstances, it is apparent that plaintiffs have not been disadvantaged. Defendant points out that the arbitrator selected by plaintiffs has handled cases against defendant for several years and presently has claims pending against defendant or its insureds for which he will be compensated on a contingency basis. At any rate, defendant contends that both plaintiffs’ and defendant’s arbitrators must agree on a third “neutral” arbitrator and, therefore, plaintiffs are not disadvantaged. We agree.'

The arbitration clauses in both the personal vehicle policy and the business auto policies state that when arbitration is conducted, each party selects an arbitrator and the two will then select a third arbitrator. There are no requirements listed in the policies as to who may serve as an arbitrator, nor does the Uniform Arbitration Act (the Act) (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.) set out specific requirements. The Act does list reasons for vacatur of an award, one of which states that an award must be vacated if “[t]here was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 10, par. 112(a)(2).) The case law in this area generally deals with questions concerning the bias or interest of the so-called “neutral” arbitrator. In such a situation, in order to warrant setting aside an arbitration award for interest or bias on the part of the arbitrator, the interest or bias must be definite, direct, and capable of demonstration rather than remote, uncertain, or speculative. (Tamari v. Bache Halsey Stuart Inc. (7th Cir. 1980), 619 F.2d 1196, 1200.) Additionally, it has been stated that it is not only actionable bias which must be avoided but also the appearance or impression of possible bias. Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 U.S. 145, 21 L. Ed. 2d 301, 89 S. Ct. 337.

Plaintiffs relied on the case of Calabrese v. State Farm Mutual Automobile Insurance Co. (1989), 187 Ill. App. 3d 349, 543 N.E.2d 215, but admit that it is distinguishable from the instant case because Calabrese concerns the alleged bias of the “third neutral arbitrator.” Certainly, Calabrese and the other cases previously cited can be helpful in considering the instant situation; however, the circumstances herein are admittedly different. Here, we are concerned with the potential bias of defendant’s arbitrator. Defendant’s designated arbitrator, attorney James Bleyer, testified that he presently has approximately 15 of defendant’s cases in his office in which he is the attorney of record. Attorney Bleyer has represented defendant for approximately 25 years and considers defendant to be a valued client. When questioned about whether he could be fair, Bleyer stated that he believed he could be fair and impartial. Mr. Bleyer’s integrity is without reproach. Plaintiffs’ attorney himself noted his respect for Mr. Bleyer in oral arguments. Specifically, plaintiffs’ attorney stated that he was “not attributing any impropriety on [attorney Bleyer’s] part as an ethical lawyer.” There is nothing in the record to suggest Mr. Bleyer’s alleged bias other than his preexisting relationship with defendant.

We believe that a past relationship such as the existing one between defendant and its designated arbitrator, Mr. Bleyer, can certainly be considered in determining whether the arbitrator can be fair and impartial. However, we refuse to say that as a matter of law such a relationship automatically disqualifies an arbitrator chosen by one of the parties. Undoubtedly, in any arbitration case, the parties will designate arbitrators who they believe will be sympathetic to their cause. It is up to the trial court in its discretion to decide whether the appearance of possible bias warrants the dismissal of such an arbitrator. Absent an abuse of that discretion, we will not reverse the trial court’s determination to permit or deny the designated arbitrator to serve as arbitrator. In the instant case, the trial court did not abuse its discretion in permitting James Bleyer to serve as defendant’s designated arbitrator.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed in part and reversed in part, and this cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

H. LEWIS and CHAPMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY HENDERSON, Defendant-Appellant.
    Fifth District
    No. 5—90—0496
    Opinion filed July 15, 1992.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, Larry Henderson, was found guilty of theft over $300 in violation of section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)). The circuit court of St. Clair County sentenced defendant to two years’ probation and ordered defendant to pay $1,510 to reimburse the public defender and $990 in fines, to be taken from the $2,500 cash bond defendant posted. Defendant appeals from the judgment, contending: (1) that the State failed to prove defendant was guilty beyond a reasonable doubt; and (2) that the trial court erred in ordering defendant to reimburse the public defender in the amount of $1,510 and in imposing a $990 fine where there was no determination of defendant’s ability to pay.

On April 29, 1989, at approximately 8:30 p.m., two black males entered Stuarts II, a retail clothing store in St. Clair Square, a shopping mall located in Fairview Heights. Regina Massey-Middlebrook, the store’s assistant manager, was working that evening when she noticed one of the men looking in her direction and acting suspicious. As she approached the man, he walked toward his companion standing several feet away. The first man rolled up some clothing, put it into a plastic bag he was carrying, and started to leave the store. Middle-brook told another employee to call the police and pursued the men herself. She caught up with the one holding the merchandise just outside the store entrance and grabbed his right arm. He then dropped the bag containing the clothing and ran out of the mall. Middlebrook decided not to pursue the second man and returned to Stuarts II to call the police. She described the shoplifters to the police dispatcher as two black males, one very dark complected with a white sweatsuit and the other one wearing a red, white and black jogging suit. Shortly thereafter, mall security guards Darin Clifton and Kevin Weis-sert arrived and obtained a different description of the two men from Middlebrook. She reported that there were two black males involved in the theft, the first one standing approximately 6 feet 3 inches tall, wearing black jeans and a sweatshirt, and the second man standing approximately 5 feet 6 inches tall, wearing a red and white sweatsuit. Weissert and Clifton immediately began searching the area and were directed by three unidentified females to an unoccupied brown Cadillac owned by defendant. The security guards observed defendant and his three children enter the car and leave the parking lot. The security guards determined that defendant closely resembled Middle-brook’s description of one of the shoplifters, and they notified Fair-view Heights police as to what they had seen. Officer Jeffrey Blair of the Fairview Heights police department responded to Middlebrook’s call and went to Stuarts II to obtain information about the incident. Middlebrook described the shoplifters as two black males, one standing approximately 6 feet tall, weighing 170 pounds with a slim build, wearing a white jogging outfit with a red baseball cap. The other man was described as 5 feet 5 inches tall, wearing a white, red and black shirt or jacket and a baseball cap. During his conversation with Middlebrook, Officer Blair received information from the radio dispatcher that security guards Clifton and Weissert reported seeing a brown Cadillac in the parking lot containing two men who closely resembled the shoplifters Middlebrook described. At that time, Blair located and pursued defendant through the mall parking lot, followed defendant’s car out of the lot, and pulled him over in a White Castle parking lot. Sergeant Gary Reimann arrived at the scene to assist Blair. Defendant was handcuffed and put into the back seat of Reimann’s car while Blair went back to the mall to get Middlebrook. Blair brought Middlebrook and Andrea Dennison, another Stuarts II employee, to Reimann’s car. Middlebrook identified defendant as one of the shoplifters, and he was taken into custody.

On May 2, 1989, defendant was charged by criminal complaint with theft over $300. On May 4, 1989, defendant posted $1,000 bond and retained private counsel to enter his first appearance. Defendant’s private counsel withdrew on September 15, 1989, and a public defender was appointed. Subsequently, the public defender filed a motion to withdraw, stating that since defendant had posted $1,000 bond, defendant was not indigent and the public defender’s office could not represent him. The public defender’s motion was heard on October 16, 1989. At the hearing, defendant stated that he had not posted the bond money himself and he was not authorized to use the money for attorney fees. Defendant further stated that he would rather proceed pro se than to take a chance that the bond would be used to reimburse the public defender. Defendant explained that he was unemployed with no source of income and no assets, and he would be unable to pay his mother back if the bail money was not returned to her. Despite defendant’s protestations, however, the court denied the public defender’s motion to withdraw and told him to keep track of his time for possible reimbursement of fees. A jury trial commenced March 15, 1990, and a mistrial was declared when the jury was unable to reach a unanimous verdict. Defendant’s bond was increased on April 27, 1990, and defendant posted an additional $1,500. Defendant’s second trial began June 19, 1990, at which time defendant and two of his children testified. Defendant stated that on the evening of April 29, 1989, he went to St. Clair Square Shopping Mall with his three children, Larry, Jr., Eric, and Mica. He testified that he was wearing a dark denim jacket, dark denim pants and a white T-shirt, and Larry, Jr., was wearing shorts and a T-shirt. Once inside the mall, defendant and his children started playing a game of tag, which consisted of Eric and Mica tagging defendant and Larry, Jr., and then running from them. Defendant testified that he and Larry, Jr., were separated from Eric and Mica for just a short time before they all left. Defendant stated that he never entered Stuarts II on April 29, 1989. Larry, Jr., corroborated defendant’s testimony that the Hendersons were at the mall on April 29, 1989, that they played tag, that he was never separated from his father while they were at the mall, and that neither he nor his father stole any merchandise from Stuarts II. The jury found defendant guilty of theft over $300, based solely on the eyewitness testimony of Regina Massey-Middle-brook.

In this appeal, defendant first contends that the State failed to prove him guilty beyond a reasonable doubt. Defendant argues that the only evidence linking him with the theft is Middlebrook’s testimony, and her identification of defendant is not credible because her descriptions of the shoplifters on the night of the theft were inconsistent and none of the differing descriptions closely matched defendant’s appearance that evening. The State argues that Middlebrook’s identification of defendant was credible because she had an opportunity to see defendant at close range when she followed him out of the store and grabbed his arm. The State further argues that Middle-brook’s descriptions were, in fact, consistent and clear.

The testimony of a single witness may be sufficient to support a conviction, but the identification must be positive and credible. (People v. Hefner (1979), 70 Ill. App. 3d 693, 388 N.E.2d 1059.) In Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, and Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, the United States Supreme Court set out five factors used to determine the reliability of an identification. These factors, as adopted by our supreme court in People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, are the witness’ opportunity to view the perpetrator at the time of the offense, the witness’ degree of attention, the accuracy of the description of the accused given by the witness, the certainty with which the witness identifies the accused, and the length of time between the crime and the confrontation. 67 Ill. 2d at 571, 367 N.E.2d at 1317.

In the case before us, the witness, Regina Massey-Middle-brook, had an opportunity to view the perpetrator for several minutes after she saw him acting suspiciously in the store and when she grabbed his arm, prompting him to drop the bag of clothing. She testified that her attention was firmly set on the perpetrator from the moment she noticed him and his companion in the store until after she chased him out of the store into the mall area. When she was taken to the White Castle parking lot to identify defendant, it was less than 15 minutes after the perpetrator had left the store, and her identification of defendant as the perpetrator was positive, without reservation or doubt. When applying the facts of this case to the five factors we must consider, we are satisfied that four of the five factors, the opportunity of the witness to view the criminal at the time of the offense, the witness’ degree of attention, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation, have been met. Only the remaining factor, the accuracy of Middlebrook’s description of the offender, warrants further discussion.

Defendant argues that Middlebrook gave conflicting and inconsistent descriptions of the shoplifters to the police, the police dispatch, and the security guards on the night of the theft, making her identification unreliable. During the testimony of Middlebrook, Clifton, Weis-sert and Blair, defense counsel questioned the witnesses about the various descriptions provided that night, using excerpts of the police reports, security reports and the dispatch transcript to impeach or refresh the memory of the witnesses. The documents themselves are not included in the record, however, which makes it impossible to determine what the full text of these documents were and the context of the excerpts used by counsel at trial. Therefore, we must limit our analysis of Middlebrook’s descriptions to what was testified to while considering that such statements may not represent an exact depiction of how Middlebrook described the shoplifters on April 29,1989.

Based on the evidence adduced at trial, Middlebrook’s descriptions of the offender’s height varied from 6 feet to 6 feet 3 inches. She told Clifton that the taller of the two men was approximately 6 feet 3 inches tall, she told Blair he was 6 feet tall, and she stated at trial that he was 6 feet 2 inches tall. Her descriptions of the man’s clothing also varied from each other and from what defendant was actually wearing upon his arrest. She consistently described his build as being slim, however, and closely estimated his weight. Where “the evidence is irreconcilably conflicting, it is the peculiar prerogative of the trier of fact *** to ascertain the truth.” (People v. Hammond (1970), 45 Ill. 2d 269, 278, 259 N.E.2d 44, 48.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of evidence or the credibility of the witnesses, and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631, 634.

Looking at the totality of circumstances under which defendant was identified, we find Middlebrook’s identification to be not so improbable to require a reversal. She had an opportunity to see the shoplifter at the time of the offense, her attention was clearly focused on him as she chased him and grabbed his arm, and she was certain about the identity of defendant as the offender only 15 minutes later. Therefore, we decline to disturb the jury’s finding that Middlebrook’s testimony was more reliable and credible than the conflicting testimony by defendant and his children.

We now turn to defendant’s contention that the trial court erred in ordering defendant to reimburse the public defender in the amount of $1,510 and imposing a $990 fine, both of which were to be paid from bail posted by defendant, without a determination of defendant’s ability to pay. Under section 113 — 3.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3.1(a)), the court can order defendant to pay the clerk of the circuit court a reasonable sum to reimburse the county or the State for appointed counsel. The statute provides, in pertinent part:

“In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant *** and any other information pertaining to the defendant’s financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court’s own motion or on motion of the State’s Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level.” (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3.1(a).)

Defendant argues that the trial court erred in not conducting an evi-dentiary hearing to determine the amount of reimbursement. Defendant specifically argues that the court should have considered defendant’s present or future ability to pay, the interests of defendant’s mother, who posted bond on his behalf, and defendant’s stated preference of proceeding pro se rather than having his cash bond used for attorney fees. As stated earlier, defendant retained private counsel to enter his first appearance, but private counsel withdrew after that, and defendant requested the appointment of a public defender. The public defender was appointed, but he filed a motion to withdraw, stating that since defendant posted $1,000 bond he was not indigent and the public defender’s office could not represent him. At the hearing on the public defender’s motion to withdraw, defendant made it clear that his mother posted the bail money and he did not want it to be used for attorney fees. Defendant stated that he was unemployed, with no source of income and no assets. When defendant was informed that his bail money may be used to reimburse the public defender, he stated that he would rather proceed pro se than to take that chance. At that time, the trial court denied the public defender’s motion to withdraw but told him to keep track of his time for possible reimbursement of fees. After defendant failed to appear at a later hearing, his bail was increased and he posted an additional $1,500, increasing the total bail defendant posted to $2,500. The trial court did not hold a hearing to determine the amount of fees the public defender would receive or defendant’s financial circumstances. The trial court simply entered an order at the sentencing hearing that defendant would reimburse the county in the amount of $1,510. No evidence was heard on the reasonableness of the fees, nor was evidence heard on defendant’s present or future ability to pay such costs. The court arrived at the $1,510 figure by multiplying the public defender’s submitted hours worked by $30 for time spent out of court and $40 for time spent in court. The State argues that a hearing to determine the amount of reimbursement of attorney fees to the county was not required in this case because the figure imposed for reimbursement was reasonable. The State’s conclusion that the fees calculated and submitted by the public defender were reasonable does not necessarily make it so. Although in his reply brief defendant concedes that defense counsel’s services were worth $1,510, defendant argues that the amount of recoupment does not depend solely on the amount of fees considered reasonable. As defendant correctly points out, a hearing is mandated by section 113 — 3.1 in which the trial court “shall consider the affidavit prepared by the defendant *** and any other information pertaining to the defendant’s financial circumstances.” (Emphasis added.) III. Rev. Stat. 1989, ch. 38, par. 113 — 3.1(a).

That leads us to defendant’s assertion that a hearing should have been held to determine defendant’s present or future ability to pay $1,510 in attorney fees. The State responds that a hearing to determine defendant’s present or future ability to pay attorney fees is not required when defendant posts a cash bond greater than or equal to the amount of the recoupment order, because posting bond is sufficient evidence of defendant’s ability to pay. In support of these assertions, the State cites People v. Nunez (1990), 197 Ill. App. 3d 332, 553 N.E.2d 1123, People v. Baker (1990), 195 Ill. App. 3d 785, 552 N.E.2d 421, and People v. Brown (1987), 154 Ill. App. 3d 692, 506 N.E.2d 1059.

In Nunez, the trial court scheduled a hearing on the motion for attorney fees, and defendant was duly notified but failed to appear. The trial court found that defense counsel, a private attorney appointed by the court to represent the defendant, devoted 11 hours to the defendant’s case and calculated attorney fees at $75 per hour. A finding of the defendant’s ability to pay was based on the $1,500 cash bond posted on his behalf, and the trial court ordered the defendant to pay $875 in attorney fees to be paid from the defendant’s bond. On appeal, the Fourth District Appellate Court upheld the trial court’s order, finding that the bond was evidence of the defendant’s ability to pay. (Nunez, 197 Ill. App. 3d at 338, 553 N.E.2d at 1127.) The defendant in Nunez also failed to object to or make any statement regarding an assessment that might be made against him for the services of court-appointed counsel. We do not find Nunez instructive on the case before us for two reasons. First, the Nunez defendant was given a hearing at which he declined to appear, whereas defendant in the present case was not afforded that opportunity. Second, defendant in this case made it quite clear to the trial court that he would rather proceed pro se than to have his bond applied to attorney fees.

We also find Baker distinguishable from the case at bar. In Baker, the Fourth District Appellate Court upheld the trial court’s order that the defendant pay $200 in attorney fees without a hearing. (Baker, 195 Ill. App. 3d at 796, 552 N.E.2d at 429.) In that case, however, the court found it significant that the trial judge who entered the recoupment order presided over the multiple pretrial hearings, the jury trial, the post-trial motion hearing and the sentencing hearing. (195 Ill. App. 3d at 792, 552 N.E.2d at 426.) Therefore, the court found that the trial court was not required to hold a formal hearing on the reasonableness of the order. Here, there were three separate judges involved in the proceedings against defendant. The first judge presided over the pretrial hearings where defendant made it clear that he was indigent and his mother posted bond for him. A second judge presided over defendant’s first trial, and a third judge presided over defendant’s second trial, post-trial motion hearing and sentencing hearing. One judge was not in a position to take notice of the entirety of proceedings against defendant. Additionally, although the defendant in Baker claimed on appeal that his parents had posted his bond, a fact which the trial court should have considered, the defendant failed to bring that fact to the attention of the trial court. (195 Ill. App. 3d at 792, 552 N.E.2d at 426.) The court also found it significant that defendant failed to comment that the recoupment order would financially burden him when he was given an opportunity to do so at the time the order was entered. 195 Ill. App. 3d at 796, 552 N.E.2d at 429.

Finally, Brown fails to support the State’s position because the Brown court simply held that it is unnecessary to specifically spell out the county’s costs such as office rental, salaries, books, equipment, supplies and transportation in a reimbursement hearing. (Brown, 154 Ill. App. 3d at 696, 506 N.E.2d at 1062.) The court did not find it unnecessary for a hearing to be held at all, however, and stated that the trial court must still hear evidence on the reasonableness of reimbursement fees. 154 Ill. App. 3d at 696, 506 N.E.2d at 1061.

We agree with defendant that section 113 — 3.1(a) mandates a hearing on the reasonableness of attorney fees for court-appointed counsel. At that hearing, the court must consider defendant’s financial circumstances to determine if recoupment is appropriate. Furthermore, under section 113 — 3.1(c), “[t]he court may give special consideration to the interests of relatives or other third parties who may have posted a money bond on the behalf of the defendant to secure his release.” (Ill. Rev. Stat. 1989, ch. 38, par. 113 — 3.1(c).) The trial court may exercise its discretion on whether to consider defendant’s mother’s interest in the bond. Accordingly, we find that the trial court erred by not conducting a hearing on the reasonableness of the amount of payment for court-appointed counsel, vacate the order imposing reimbursement of attorney fees, and remand for a hearing on defendant’s ability to pay the reimbursement fees.

Finally, we turn to defendant’s contention that the trial court erred in imposing a $990 fine on defendant because there was no evidence that he had the ability to pay such a fine. Defendant correctly points out that although a formal hearing is unnecessary, there must be facts on the record to show defendant’s ability to pay restitution. (People v. Johnson (1982), 106 Ill. App. 3d 171, 435 N.E.2d 799.) We find no facts in the record to support defendant’s ability to pay a $990 fine. Defendant stated at a pretrial hearing that he was unemployed and without assets, his State assistance had been discontinued, and his mother posted bond. At the sentencing hearing, defendant stated that he had part-time employment at his mother’s place of business, but there was no evidence heard on his wages or salary. Therefore, the trial court erred in imposing a fine of $990 on defendant without knowing defendant’s financial circumstances. We hereby vacate the order imposing a $990 fine and remand the cause for a hearing to determine defendant’s financial resources.

For the foregoing reasons, the judgment of the circuit court of St. Clair County finding defendant guilty of theft over $300 is affirmed, the orders requiring defendant to pay $1,510 in attorney fees and a $990 fine are vacated, and the cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part; vacated in part; and remanded.

H. LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE WELCH

text:
    BRIAN K. HIGGINBOTTOM, Plaintiff, v. PILLSBURY COMPANY, Defendant and Third-Party Plaintiff-Appellant (Dennis Alexander, Defendant; Yale Enforcement Services, Inc., Third-Party Defendant-Appellee).
    Fifth District
    No. 5—91—0426
    Opinion filed July 16, 1992.

      L. David Green, of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellant.
    James C. Cook, of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant and third-party plaintiff, The Pillsbury Company (hereinafter Pillsbury), appeals from the May 15, 1991, order of the circuit court of St. Clair County, Illinois, dismissing with prejudice its third-party complaint against Yale Enforcement Services, Inc. (hereinafter Yale). Plaintiff, Brian K. Higginbottom, had filed the initial three-count complaint herein on November 2, 1989, seeking damages against Pillsbury in count I of the complaint, for negligent construction and maintenance of a guardhouse where he was injured while working as a security guard on November 26, 1988. Plaintiff also joined Dennis Alexander as a defendant, alleging that Alexander had negligently operated his motor vehicle and failed to keep it under control such that Alexander’s vehicle had violently struck the guardhouse within which plaintiff had been working on that date. Finally, plaintiff joined as a defendant under the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135) Mississippi Avenue, Inc., d/b/a/ Pop’s Saloon & Eats, alleging that defendant Alexander had consumed alcoholic beverages at Pop’s Saloon & Eats on November 26, 1988, causing him to become intoxicated, and that as a result of said intoxication Alexander’s vehicle struck the guardhouse wherein plaintiff was working, causing plaintiff severe and permanent injury.

The record indicates that plaintiff had filed a separate workers’ compensation claim against his employer, Yale, which was settled prior to the date on which Pillsbury filed its third-party complaint against Yale seeking contribution under the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.). The record also indicates that plaintiff settled the cause of action filed against defendant Mississippi Avenue, Inc., while the third-party complaint for contribution was pending.

Yale filed a motion to dismiss the third-party complaint pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), stating therein that the Illinois Supreme Court was presently considering the question of whether an employer could be held liable for contribution in an action instituted by its employee or whether the exclusive remedy was provided by the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, pars. 138.5(a), 138.11), citing Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155. Yale also filed a motion for settlement approval and for “good faith” finding, stating therein that plaintiff and his employer had entered into a settlement of plaintiff’s workers’ compensation claim on September 12, 1989. Yale attached to this motion copies of the settlement contract approved and certified by the State of Illinois Industrial Commission and settlement check in the amount of $12,135 made payable to plaintiff and his attorney. Yale requested that the court approve the settlement and find that the settlement had been given in good faith, as that term is used in section 2(c) of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 302(c)), thus extinguishing any claims for contribution by third parties against Yale. Pillsbury filed a response in opposition to Yale’s motion to dismiss, contending that an employer’s immunity from suit in tort by its employee is not a bar to a claim for contribution against it by a defendant held liable to such plaintiff, citing Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382. Pillsbury also filed an objection to the approval of Yale’s settlement with plaintiff on the workers’ compensation claim and to the good-faith finding, attaching thereto the affidavit of Pillsbury’s attorney which stated that plaintiffs attorney had told affiant that a lien in the approximate amount of $40,000 for payments received under the workers’ compensation claim would apply to any moneys received by plaintiff in the instant lawsuit.

Following argument by counsel for Yale and Pillsbury and the Illinois Supreme Court’s decision filed April 24, 1991, in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, the circuit court entered its May 15, 1991, order dismissing Pillsbury’s third-party complaint against Yale. The court found therein that Yale had responded to the third-party complaint seeking contribution by invoking the exclusive remedy provision of the Workers’ Compensation Act and stating in its section 2 — 619 motion that the third-party action against it is barred by reason of its workers’ compensation settlement with plaintiff. The court referred to the copy of the September 12, 1989, settlement which was filed of record, and the court noted that plaintiff’s counsel had advised the court that the settlement had been fully consummated and that the employer’s workers’ compensation lien, which would apply to any monies received from the third-party plaintiff, had not been waived. The court found that in view of the supreme court’s decision in Kotecki, Yale’s liability for contribution in the third-party claim was limited to the total sum of the workers’ compensation liability it paid to plaintiff, its employee. The court further found that because Yale had fully satisfied its workers’ compensation liability pursuant to the lump sum settlement order approved September 12, 1989, it had also fully satisfied its liability for contribution under Kotecki and section 2(c) of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 302). The court deferred to the findings and order of the Illinois Industrial Commission approving plaintiff’s settlement with its employer and accordingly dismissed with prejudice Pillsbury’s third-party complaint against Yale. The court further stated in its May 15, 1991, order, "there is no just reason to delay enforcement or appeal of this order,” citing Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

On appeal, brought pursuant to Supreme Court Rule 304(a), Pillsbury asks us to determine whether the trial court improperly dismissed its third-party complaint for contribution against Yale because there had been no “good faith” settlement for purposes of the Contribution Act. We initially note that the Contribution Act provides in pertinent part:

“Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.
(b) The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.” (Ill. Rev. Stat. 1989, ch. 70, pars. 302(a),(b).)

We also note that while an employer is immune from an action at law by an injured employee pursuant to sections 5(a) and 11 of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, pars. 138.5(a), 138.11), the Illinois Supreme Court has held that under the Contribution Act the employer’s immunity from a suit in tort by its employee as plaintiff is not a bar to a claim for contribution against it by a defendant held liable to such plaintiff. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14, 461 N.E.2d 382, 388.) The court explained in Doyle that because the potential for an employer’s tort liability exists until such time as the statutory immunity defense is established, employers are subject to liability in tort for purposes of the Contribution Act wherein “ ‘ “liability” is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought.’ ” (Doyle, 101 Ill. 2d at 10-11, 461 N.E.2d at 387, quoting Stephens v. McBride (1983), 97 Ill. 2d 515, 520, 455 N.E.2d 54, 57.) The Illinois Supreme Court has recently ruled, as noted by the court below, that a third-party plaintiff may only seek contribution against an employer in an amount not greater than the workers’ compensation liability of the third-party defendant/employer. (Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 166, 585 N.E.2d 1023, 1028.) In adopting the “Minnesota rule” announced in Lambertson v. Cincinnati Corp. (1977), 312 Minn. 114, 130, 257 N.W.2d 679, 689, our supreme court sought to reconcile conflicting portions of the Contribution Act and Workers’ Compensation Act by limiting the amount of contribution of an employer to its liability under workers’ compensation. Following Kotecki, Yale’s liability for contribution to Pillsbury under the third-party complaint would have been limited to its liability to plaintiff under the Workers’ Compensation Act.

Pillsbury argues that the trial court extended Kotecki beyond its holding by dismissing Pillsbury’s third-party complaint for contribution on the basis that Yale had satisfied its workers’ compensation liability. This clearly would have been error, for Kotecki reaffirmed the holding of Doyle that an employer can be held liable for contribution to a third-party plaintiff held liable to a plaintiff/employee in a tort action, regardless of the Workers’ Compensation Act. However, we believe Pillsbury has misinterpreted the holding of the trial court’s May 15,1991, order. The court stated in this order:

“The court further finds that the employer, having fully satisfied its workers’ compensation liability pursuant to the lump sum settlement and order approved September 12, 1989, has also fully satisfied its liability for contribution under Kotecki, and section 2(c) of the Contribution Act.” (Emphasis added.)

The court by specifically referencing section 2(c) of the Contribution Act recognized that Yale was seeking dismissal of the third-party action based on a good-faith settlement of the workers’ compensation action with plaintiff, the contribution aspect of which is satisfied by way of the concomitant setoff of plaintiff’s recovery from any non-settling defendant. We also note that neither Doyle nor Kotecki involved a factual situation such as in the instant case where the workers’ compensation liability had been settled and the third-party defendant/employer was seeking approval of the settlement, a “good faith” finding, and discharge of liability for contribution under section 2(d) of the Contribution Act.

The Contribution Act seeks both to apportion liability for tortious conduct among those liable for the resultant injuries and to encourage settlement of such cases. (Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 846, 498 N.E.2d 690, 694.) The only apparent requirement for application of the Contribution Act is that the plaintiff’s recovery be based on the same injury to person or property. (Yanan v. Ewing (1990), 205 Ill. App. 3d 96, 99, 562 N.E.2d 1243, 1245.) The copy of the September 12, 1989, settlement contract indicates that plaintiff’s workers’ compensation claim was filed against Yale for injuries occurring on November 27, 1988, while plaintiff was within a guard station which was struck by an automobile, the same injuries alleged by plaintiff in his complaint against Pillsbury, Alexander and Mississippi Avenue, Inc., in the instant case. We find that the Contribution Act would apply to plaintiff’s workers’ compensation recovery.

When the Contribution Act does apply, a settlement between one tortfeasor and the plaintiff will result in an equal reduction or setoff in the amount of any judgment entered against a nonsettling tortfeasor. (Yanan, 205 Ill. App. 3d at 99, 562 N.E.2d at 1245; Ill. Rev. Stat. 1989, ch. 70, par. 302(c).) Moreover, a tortfeasor who settles with a claimant pursuant to section 2(c) of the Contribution Act is discharged from all liability for any contribution to any other tort-feasor. (Ill. Rev. Stat. 1989, ch. 70, par. 302(d).) Section 2(c) of the Contribution Act provides as follows:

“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 70, par. 302(c).)

We also note numerous Illinois cases which support the proposition that a third-party defendant/employer from whom contribution is sought can make a good-faith settlement of a workers’ compensation claim with the plaintiff/employee and thus be discharged from contribution liability to a nonsettling defendant. (See, e.g., Wilson v. The Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524; Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 520 N.E.2d 932; Ellis v. E.W. Bliss & Co. (1988), 173 Ill. App. 3d 779, 527 N.E.2d 1022.) Therefore, if the trial court in the instant case properly found that the September 12, 1989, settlement between Yale and plaintiff of plaintiffs workers’ compensation claim had been “given in good faith” under section 2(c) of the Joint Tortfeasors Contribution Act, Yale would be discharged from liability for contribution to Pillsbury or any other tortfeasor and the court could properly have dismissed Pillsbury’s third-party complaint against Yale for contribution.

Pillsbury does not argue on appeal that Yale is incapable of entering into a good-faith settlement directly with plaintiff in order to satisfy Yale’s potential liability for contribution to Pillsbury. Pillsbury does argue, however, that as long as Yale maintains its right to assert the statutory workers’ compensation lien, any such settlement cannot be considered to have been made in good faith. In the alternative, Pillsbury argues that it should be entitled to contribution as long as Yale is permitted to retain its workers’ compensation lien. An employer, whether negligent or not, has a right to recover compensation payments paid to an injured employee under section 5(b) of the Workers’ Compensation Act. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) This so-called right of recoupment allows the employer to assert a lien upon any award, judgment or fund out of which such employee might be compensated from any such third party. (See Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) This section allows both the employer and employee to reach the true offender while preventing the employee from obtaining a double recovery. (Langley v. J.L. Simmons Contracting Co. (1987), 152 Ill. App. 3d 899, 905, 504 N.E.2d 1328, 1332.) The employer’s reimbursement under this section of the Act is reduced, however, by the necessary expenses incurred by the employee in connection with such third-party action, and where the services of an attorney of the employee have contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then in the absence of other agreement the employer shall pay the employee’s attorney 25% of the gross amount of such reimbursement. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) We also note that as long as the employer is subject to contribution to third parties, to the extent of his workers’ compensation liability to plaintiff/employee according to Kotecki, the exercise of the employer’s right of recoupment also ensures that the employer will not be paying twice.

Pillsbury argues that if Yale is allowed to discharge its contribution liability by way of section 2(d) of the Contribution Act and is permitted to recoup its workers’ compensation payments out of any judgment or settlement plaintiff may recover from Pillsbury and the remaining defendants, Yale is receiving a windfall. Pillsbury also argues that a finding of good faith in a situation such as this, where the employer retains its workers’ compensation lien, goes against one of the purposes of the Contribution Act, the encouragement of settlements. Pillsbury maintains that the remaining nonsettling defendants will be frustrated in their ability to settle with plaintiff in a situation such as this, because the employer who retains its lien has been dismissed from liability for contribution and therefore has no incentive to release that lien and so plaintiff will demand that any settlement also include whatever amount is necessary to satisfy the employer’s lien.

Yale points out, on the other hand, that its settlement with plaintiff must be set off against any judgment plaintiff may recover against the remaining nonsettling defendants, pursuant to section 2(c) of the Contribution Act. (Ill. Rev. Stat. 1989, ch. 70, par. 302(c).) Pillsbury’s potential net judgment liability by way of this setoff is therefore the functional equivalent of receiving contribution from Yale since Yale’s contribution liability is limited to its workers’ compensation liability pursuant to Kotecki. While Pillsbury argues that plaintiff is disadvantaged by having to reimburse Yale for the workers’ compensation payments, Yale points out that plaintiff did not object to his employer’s motions or to the circuit court’s entry of the May 15, 1991, order. In any event, Yale argues, plaintiff’s net judgment recovery would be approximately the same, with or without a waiver of Yale’s workers’ compensation lien, for if the lien were waived the value of the waiver to plaintiff would also have to be set off from any recovery plaintiff received from nonsettling defendants, citing Wilson v. The Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524.

With these arguments in mind, we will now examine the propriety of the trial court’s determination that the workers’ compensation settlement between plaintiff and Yale was in good faith. The Contribution Act does not specifically define “good faith”; in determining whether an agreement was made in good faith, all of the surrounding circumstances must be considered. (Wilson v. The Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 318, 546 N.E.2d 524, 529.) Moreover, the matter is largely left to the discretion of the trial court. (Dixon, 166 Ill. App. 3d at 751-52, 520 N.E.2d at 937.) However, once a preliminary showing of a good-faith settlement has been made, the burden shifts to the party challenging the settlement to establish that it was not made in good faith. (Wilson, 131 Ill. 2d at 318-19, 546 N.E.2d at 529.) The party opposing the settlement must prove by clear and convincing evidence that the settlement is invalid. (Cleveringa v. J.I. Case Co. (1989), 192 Ill. App. 3d 1081, 1085, 549 N.E.2d 877, 879.) We must therefore determine first whether Yale made a preliminary showing of good faith, as a matter of law, and if so, whether Pillsbury has overcome the presumption of validity of the agreement by clear and convincing evidence. Banks v. R.D. Werner Co. (1990), 201 Ill. App. 3d 762, 770, 559 N.E.2d 217, 222.

To aid us in this determination, we will review recent cases which have examined the good faith of settlements between third-party defendants/employers and plaintiffs/employees. In Wilson v. The Hoffman Group, Inc., our supreme court addressed the issue of whether a settlement between a plaintiff/employee and a third-party defendant/ employer was supported by consideration and therefore made in good faith. The court noted previous appellate court cases, Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 520 N.E.2d 932, and Ellis v. E.W. Bliss & Co. (1988), 173 Ill. App. 3d 779, 527 N.E.2d 1022, which had reached this issue. In Dixon the plaintiff/employee brought suit under the Structural Work Act against the owner of the work site, who then filed a third-party complaint against plaintiff’s employer for contract indemnity and contribution. Plaintiff had also filed an application seeking benefits pursuant to the Workers’ Compensation Act against his employer. Plaintiff and his employer entered into a settlement agreement whereby the employer agreed to pay the plaintiff $110,000 and to waive its workers’ compensation lien to the extent of $70,000. The third-party plaintiff argued that the settlement lacked consideration and was not in good faith because the employer did not have a legal liability to compensate the plaintiff outside of the Workers’ Compensation Act. The appellate court held, however, that because the employer was potentially liable in tort for purposes of the Contribution Act until he raised and proved an affirmative defense under the Workers’ Compensation Act, sufficient consideration existed to support a settlement for purposes of the Contribution Act. The court also found that a settlement is not made in bad faith for purposes of the Contribution Act simply because its purpose is to eliminate third-party liability, noting:

“The policy in Illinois is to encourage settlements. Engrafting a restriction on the right to settle directly with a plaintiff would restrict this policy, and this we decline to do.” Dixon, 166 Ill. App. 3d at 752, 520 N.E.2d at 937.

In Ellis v. E.W. Bliss & Co., plaintiff was injured operating a punch press at work and brought suit against the manufacturer of the press and her employer. The employer asserted the exclusive remedy of the Workers’ Compensation Act and was dismissed from the suit. The manufacturer then filed a third-party complaint for contribution against the employer, whereupon the employer negotiated a settlement agreement with the plaintiff/employee. According to the settlement agreement, the employer was to pay $250,000 to plaintiff and waive its workers’ compensation lien of $38,153.07. The agreement was submitted to the court for a “good faith” finding, and the manufacturer objected, arguing that there was no consideration for the agreement because plaintiff’s action in tort against his employer had already been dismissed. The appellate court rejected this argument, finding that by settlement of the workers’ compensation liability the employer was also extinguishing “potential liability” in the third-party action, rather than “potential liability” only in the action of plaintiff against the employer, and noting the discharge from contribution provided in section 2(d) of the Contribution Act. Ellis, 173 Ill. App. 3d at 782-83, 527 N.E.2d at 1024.

In the Wilson case, a worker injured in a roofing accident brought suit against the general contractor of the job, who then filed a third-party complaint for contribution against the plaintiff’s employer. Plaintiff and his employer entered into a settlement agreement whereby the employer paid $24,000 in cash and agreed to waive its $149,737 statutory workers’ compensation lien in exchange for a release from liability from plaintiff. The court agreed with the positions articulated in the Dixon and Ellis cases that, because employers remain liable in tort to plaintiffs until they raise the defense of exclusive remedy under the Workers’ Compensation Act and are potentially liable to third parties for contribution, a plaintiff’s release of his employer constitutes consideration under the Contribution Act and its acceptance constitutes a valid settlement between the employer and employee. It specifically noted in connection therewith:

“It would be incongruous for us to hold that while an employer is subject to liability in tort under the Contribution Act, it cannot avail itself of the Act’s provisions to discharge that liability.” (Wilson, 131 Ill. 2d at 318, 546 N.E.2d at 529.)

The supreme court rejected the argument of the plaintiff in Wilson, however, that the amount of the workers’ compensation lien waiver should not be set off against any subsequent judgment obtained by plaintiff, along with the cash settlement under section 2(c) of the Contribution Act. The court noted that if the amount of the lien waiver is not set off from such recovery, the plaintiff would retain both compensation from the employer in the form of the workers’ compensation benefits and identical damages from the general contractor who would then be required to pay more than its pro rata share of liability. The court held that the general contractor would be entitled to a setoff to the extent of the amount stated in the release. Wilson, 131 Ill. 2d at 324, 546 N.E.2d at 531.

Each of these cases involved situations in which the settlement between the employer and employee included a waiver of the workers’ compensation lien. Two appellate court decisions subsequent to Wilson, however, have involved settlements which did not provide for a total waiver by the employer or insurance carrier of its workers’ compensation lien. In Cleveringa v. J.I. Case Co. (1989), 192 Ill. App. 3d 1081, 549 N.E.2d 877, an injured worker brought a products liability action against the manufacturers of a boring machine and boring rods, seeking to recover for injuries sustained while the worker was using the boring machine in his employment. The manufacturer defendants then filed a third-party action against plaintiff’s employer for contribution, and the employer’s workers’ compensation insurance carrier was allowed to intervene. Plaintiff settled with his employer by way of a structured settlement valued at $1.07 million and with the manufacturer of the boring rods for $30,000, releasing both from all further liability. At the time of settlement the insurance company had paid plaintiff approximately $275,000 in workers’ compensation benefits and held a lien in that amount against any settlement or judgment obtained by plaintiff pursuant to section 5(b) of the Workers’ Compensation Act. The settlement agreement provided that the insurance company would waive enforcement of the lien against the parties to the agreement and funds received thereunder but would reserve its right to enforce the lien against funds received by plaintiff from settlement with or judgment against the manufacturer of the boring machine. The trial court found that the settlement agreement was in good faith and dismissed all pending claims except for plaintiffs action against the manufacturer of the boring machine. The appellate court noted that there was no allegation by the manufacturer of the boring machine that the agreement resulted from collusion, fraud, or tortious conduct. It rejected the arguments of the manufacturer that the settlement was in bad faith because it amounted to selective enforcement of the workers’ compensation lien and that the language of the agreement referring to the workers’ compensation lien should be read as a complete waiver of the lien such that the manufacturer should receive the benefit of a setoff in the amount of the lien. It found Wilson distinguishable on its facts because the insurance carrier waived enforcement of the lien only against the parties and funds contemplated by the agreement and not against funds received by plaintiff from the manufacturer. Thus, the court reasoned, there was no risk of double recovery by plaintiff or of the manufacturer being required to pay more than its pro rata share of the common liability. Cleveringa, 192 Ill. App. 3d at 1086-87, 549 N.E.2d at 880.

In Banks v. R.D. Werner Co. (1990), 201 Ill. App. 3d 762, 559 N.E.2d 217, plaintiff construction workers brought suit under the Structural Work Act against the general contractor of a work project and in strict tort liability against the manufacturer of a plywood plank, alleging that unreasonably dangerous defects in a scaffolding plank proximately caused the injuries plaintiffs suffered in a fall at the work site. Plaintiffs’ employer, who was not then a party to the suit, filed a motion seeking approval of settlements with the plaintiffs/ employees and good-faith findings pursuant to the Contribution Act. The settlements provided that the employer and the second employee would pay the first employee $8,000 and that the employer and the first employee would pay the second employee $7,000. The employer sought a discharge from any further liability to the plaintiffs or any other tortfeasor pursuant to Illinois common law or statute, including the Contribution Act. The settlement was made contingent on a finding of good faith under the Contribution Act by the trial court. There was a $40,000 to $50,000 workers’ compensation lien which had not been waived and which would be payable out of any subsequent recovery by the plaintiff against the manufacturer, unless the insurance carrier agreed to waive it. The appellate court found that the parties to the settlement had made a preliminary showing of good faith because the plaintiffs had received a total of $15,000 which could be the only money the plaintiffs might receive other than the workers’ compensation awards and in return the employer received a release from the plaintiffs for any potential tort liability to them. The court also rejected an argument that the agreement was not in good faith, as a matter of law, because the insurance carrier had so far not waived its lien, citing Cleveringa for the proposition that the failure of even an employer to waive a workers’ compensation lien does not ipso facto render a settlement invalid as having been made in bad faith. While the court noted that evidence of consideration was stronger in cases in which employers or insurance carriers waived their lien, the test was not whether the evidence of consideration could have been stronger but whether it was strong enough. Banks, 201 Ill. App. 3d at 771, 559 N.E.2d at 222.

In the instant case, the September 12, 1989, settlement agreement provides in pertinent part:

“Respondent to pay and petitioner to receive $12,135.00 representing approximately 75% of the left leg (150 weeks) in full, final and complete settlement of any and all claims petitioner now has or may have in the future as a result of an accident of 11/26/88 while in the employ of the respondent. The disputes between the parties were as to the nature and extent of injury and responsibility for future medical treatment. The parties specifically agree that neither shall have the right to re-open the settlement agreement under Section 19H. In addition, the Parties herein agree that Petitioner shall be entitled to further medical care pursuant to Section 8(a), up to a total expenditure of $15,000.00. Petitioner herein further agrees to contact Respondent’s insurer before undergoing any further medical care.” (Emphasis added.)

A copy of the settlement agreement was attached to Yale’s motion for settlement approval and “good faith” finding and was incorporated by reference thereto. The above italicized provision of the settlement agreement indicates, on its face, that there was consideration for the agreement and that the consideration was not illusory; plaintiff received $12,135 plus payment of future medical expenses, not to exceed $15,000 in total settlement of any and all present and future claims plaintiff may have against his employer as a result of this accident. Moreover, plaintiff’s acceptance of the settlement agreement amounts to an implied release and would be an affirmative defense to any action to impose additional liability upon Yale. (Stacy v. Ametek, Inc. (1990), 205 Ill. App. 3d 58, 61, 562 N.E.2d 1180, 1182.) In addition, because Yale was potentially subject to liability in tort by its employee until the defense was established and thus was also subject to liability as a joint tortfeasor under the Contribution Act, the settlement was supported by consideration. (Wilson v. The Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524.) Finally, other language in the above section of the settlement agreement indicates that the nature and extent of plaintiff’s injury and responsibility for future medical care were in dispute between the parties at the time of the settlement. While a disputed claim which is entirely without foundation cannot support a good-faith settlement, “where the claim is questionable, its compromise nevertheless will support a settlement agreement asserted in good faith.” (O’Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 917, 501 N.E.2d 263, 267.) Pillsbury does not argue that the disputed claim was without foundation between the parties to the settlement agreement.

We also note from our review of the settlement agreement that plaintiff’s attorney was required to certify that he was knowledgeable of the terms of the Workers’ Compensation Act and to recommend the settlement for approval by the Industrial Commission. The circuit court in its May 15, 1991, order noted that the motion for settlement approval and “good faith” finding referred to the workers’ compensation settlement which was approved in a lump sum settlement order dated September 12, 1989, and specifically deferred to the findings of the Industrial Commission approving the plaintiff’s and employer’s lump sum settlement contract. We therefore find that Yale made a preliminary showing that a good-faith settlement had been made, shifting the burden to Pillsbury to establish that the agreement was not made in good faith.

Pillsbury contends in its brief to this court that Yale never established the exact amount paid under the Workers’ Compensation Act. It notes that while the settlement agreement refers to the $12,135 lump sum settlement, Yale was also required to pay additional amounts for future medical treatment (up to $15,000), which plaintiff’s counsel had estimated would bring the total amount paid in workers’ compensation benefits to approximately $40,000, as was contended in the affidavit of Pillsbury’s attorney attached to its objection to the motion for good-faith finding. We also note from our review of the settlement agreement that, as of the date of the settlement, plaintiff had already received workers’ compensation benefits of $3,733.30 for temporary total disability (37 weeks at $100.90 per week), and that the employer had paid all medical bills. The total amount of the employer’s lien could very well be, as Pillsbury’s attorney stated in his affidavit, in the approximate amount of $40,000.

If the settlement agreement is approved and a good-faith finding is made, however, the amount of judgment setoff to which Pillsbury would be entitled would be much less than plaintiff actually received in total workers’ compensation benefits, as long as Yale is allowed to retain its lien. Assuming that only the case against Pillsbury proceeds to trial, a jury’s verdict against Pillsbury will render it liable for the whole extent of plaintiff’s damages, subject only to setoff equal to the consideration plaintiff received in settlement from his employer and other settling defendants whose liability for contribution has been discharged under section 2(d) of the Contribution Act. If the lien is not waived in the approximate amount of $40,000, the amount of setoff from Pillsbury’s liability to plaintiff would not include all of Yale’s workers’ compensation liability to plaintiff and Pillsbury would be required to indirectly reimburse Yale for payment of that liability out of any judgment rendered against it in this case. This is so because evidence of workers’ compensation payments for plaintiff’s disability and medical expenses would not be admissible into evidence by Pillsbury at trial. (See Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 568, 190 N.E.2d 315, 317.) Moreover, because the obligatory benefits paid by an employer to an employee pursuant to workers’ compensation derive from a source collateral to the alleged tort of third parties, they are, as such, not deducted or set off from a later judgment against the third-party tortfeasor. (Stifle v. Marathon Petroleum Co. (7th Cir. 1989), 876 F.2d 552, 560; accord Wilson, 131 Ill. 2d at 320, 546 N.E.2d at 530.) However, if the employer gives a lien waiver as part of a settlement with his employee, the value of an employer’s workers’ compensation lien which was given to the employee as part of the settlement will be set off against the employee’s recovery from a third party. (Wilson, 131 Ill. 2d at 324, 546 N.E.2d at 531.) Under this analysis it can quite readily be seen that the settlement agreement in the instant case will require Pillsbury to pay more than its pro rata share and was thus not in good faith. We therefore disagree with Yale that the plaintiff’s ultimate recovery remains constant whether or not the lien is waived. We also specifically disagree with Yale’s characterization of the supreme court’s holding in Wilson that even if the workers’ compensation lien is not waived, the total amount of workers’ compensation payments received by plaintiff is set off from the judgment. The court in Wilson distinguished between collateral-source workers’ compensation benefits which do not diminish plaintiff’s recovery and the waiver of the employers’ lien which is part of the consideration for the settlement. In the latter case the full value of the lien waiver will be set off from plaintiff’s recovery pursuant to section 2(c) of the Contribution Act.

Neither does our review of the above-noted case law dealing with the good faith of settlements convince us that the trial court correctly found that the agreement was in good faith. The consideration for the employee’s release of liability of the employer was quite readily seen in Dixon, Ellis and Wilson. In each case there was a cash payment and release of the employer’s lien, which is of value to the plaintiff/employee because he or she will not be required to refund any part of a judgment proceeds or settlement monies received from other defendants. Moreover, while in Cleveringa and Banks the employer or insurance carrier did not agree to release their liens against nonsettling defendants as part of the settlement with the employee, it is evident that the employees were, to receive cash in excess of the workers’ compensation benefits already received, for which the employer or insurance company retained its lien. Thus, while, as the court noted in Banks, the test is not whether the evidence of consideration could have been stronger but whether it was strong enough, for there to be good faith for such employee and employer settlements there must be some net consideration extended by the employer to the employee.

In the instant case, all of the monies extended to the plaintiff/employee by Yale, whether the initial obligatory payments for disability and medical treatment or the lump sum settlement of future disability and up to $15,000 in future medical treatment, can be recovered by Yale by way of its retained lien. It is apparent then that Yale is being asked to pay nothing to its employee by way of this agreement and, accordingly, that Pillsbury is being asked to pay more than its pro rata share of liability to plaintiff. We do not believe that such scenario was contemplated by the Contribution Act. Our supreme court noted in dicta in Doyle v. Rhodes that in a situation in which the Contribution Act may impact upon an employer’s right of recoupment under section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b)), some accommodation between the two statutes may be in order. (See Doyle, 101 Ill. 2d at 14-15, 461 N.E.2d at 389.) While the supreme court laid to rest in Wilson the issue of whether an employer could enter into a settlement with an employee of its workers’ compensation liability and thereby discharge its contribution liability to third-party tortfeasors liable to such plaintiff/employee, we believe a proper accommodation between the two statutes would require that in order for the settlement to be in good faith, the plaintiff/ employee must receive some net consideration for the agreement. Accordingly, we find that Pillsbury established from all of the surrounding circumstances that the settlement agreement between Yale and plaintiff was not in good faith, and that the trial court improperly dismissed Pillsbury’s third-party complaint for contribution against Yale because it abused its discretion in approving a good-faith finding under section 2(c) of the Contribution Act for such agreement. We therefore reverse the May 15, 1991, order of the circuit court of St. Clair County and remand the case for further proceedings.

Reversed and remanded.

HARRISON and H. LEWIS, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
      In re MARRIAGE OF TRUDY ANN SPARAGOWSKI, Petitioner-Appellee, and JACK EDWARD SPARAGOWSKI, Respondent-Appellant.
    Third District
    No. 3-91-0703
    Opinion filed July 10, 1992.

      Peggy J. Ryan and Scott C. Helmholz, both of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

On December 3, 1979, the circuit court of Fulton County entered a judgment dissolving the marriage between the respondent, Jack Edward Sparagowski, and the petitioner, Trudy Ann Sparagowski. At the time of the divorce, the parties’ two children were ages six and three. The circuit court granted the petitioner custody of them and ordered the respondent to pay child support.

On October 5, 1989, the petitioner filed a motion to modify the child support order. Following a hearing, the circuit court increased the child support and found that the respondent should pay the petitioner’s attorney fees in the amount of $1,643.95. The respondent subsequently filed a motion to vacate the award of attorney fees. Thereafter, the circuit court ordered the respondent to pay the reduced amount of $800 in attorney fees. The respondent now appeals this order. We reverse.

No appellee’s brief has been filed in response. However, since the record is simple and the issue is clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Attorney fees are the primary obligation of the party for whom the services are rendered. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947.) However, in a proceeding to modify a dissolution judgment, the court may order one spouse to pay some or all of the attorney fees and costs necessarily incurred by the other. (Ill. Rev. Stat. 1991, ch. 40, par. 508(a)(2).) The spouse seeking an award of attorney fees must demonstrate both a financial inability to pay the fees and the ability of the other spouse to do so. (In re Marriage of Cotton (1984), 103 Ill. 2d 346, 469 N.E.2d 1077.) Financial inability exists where payment would strip the person of the means of support and undermine her economic stability. (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336.) Merely showing that the other spouse has a greater ability to pay attorney fees is not sufficient. (In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 511 N.E.2d 1157.) The trial court’s decision will not be disturbed absent a clear abuse of discretion. In re Marriage of Ryan (1985), 138 Ill. App. 3d 1077, 487 N.E.2d 61.

In the case at bar, we find that the petitioner failed to satisfy the first prong of the test, i.e., that she was financially unable to pay her attorney fees. According to the record of the hearing on her petition to modify child support, she had a gross income of $21,511 per year. She had received annual cost-of-living increases, and was likely to qualify for a 5% merit increase in 1991. She further testified that her home was worth approximately $45,000 and that her equity in the home was approximately $18,000. She also owned a new automobile. Moreover, at the close of the hearing, the trial court increased her child support payments from $150 to $170 per week.

Although the petitioner testified that she had to borrow money to meet certain expenses in connection with her home, her financial affidavit reveals that the monthly payments for these loans totaled $334.92. The petitioner did not testify that she was unable to make these payments. Nor did she introduce any evidence to support her assertion that she was unable to pay her attorney fees.

Based on the foregoing, it does not appear that requiring the petitioner to pay her own attorney fees will strip her of her means of support or undermine her economic stability. We need not address the question of the respondent's ability to pay, as the petitioner has failed to meet the burden of showing her inability to pay. Accordingly, we reverse the judgment of the trial court.

The judgment of the circuit court of Fulton County is reversed.

Reversed.

McCUSKEY and GORMAN, JJ., concur.