author: PRESIDING JUSTICE McNAMARA

text:
      In re MARRIAGE OF CYNTHIA M. MARCELLO, Petitioner-Appellant, and MICHAEL A. MARCELLO, Respondent-Appellee.
    First District (6th Division)
    No. 1—91—3704
    Opinion filed May 21, 1993.

      Edward R. Jordan, of Wheeling, for appellant.
    Robert S. Bailey and Erika Cunliffe, both of Chicago, for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On October 17, 1991, the trial court entered a judgment dissolving the marriage between petitioner, Cynthia M. Marcello and respondent, Michael A. Marcello. The judgment barred Cynthia from receiving maintenance, ordered joint custody of the couple’s 12-year-old son, provided for Michael’s payment of child support, and also distributed the property of the parties. Cynthia appeals, contending that the order of joint custody and the bar against maintenance are against the manifest weight of the evidence. In addition, Cynthia challenges the court’s valuation and distribution of marital assets and liabilities, and the apportionment of marital debt.

The parties were married on April 9, 1978, and had one child, Salvatore Michael Marcello (Sammy), who was born on May 28, 1979. The parties separated in November 1987. Sammy is in good health, has performed well in school, and has been enrolled in a science program for gifted students.

After the parties married, they lived in Elk Grove Village in a home owned by Cynthia prior to the marriage. In 1972, Cynthia had purchased the home for $36,500, subject to a mortgage debt of $32,000. The balance on the mortgage was $31,532 at the time of the marriage. The principal balance owed on the mortgage was $24,237 at the time of trial, which demonstrated a reduction of $7,295 from 1978 through 1991.

In 1987, the parties purchased a second home in Williams Bay, Wisconsin, for $80,000. Michael’s mother loaned the couple $18,162.10 to purchase the property.

Cynthia, age 43, has a high school education. At the time of trial, she worked at a suburban hotel as a concierge. Her gross income for 1990 was $10,489.29. Cynthia’s monthly net income during 1991 was $1,266.05, which included $375 as child support and $200 as temporary maintenance. Her monthly mortgage payment was $479, and her child care expenses were $150. In the pretrial memorandum, Cynthia described the condition of her health as “fair,” and that she suffered from lupus and the residual effects of a laminectomy.

At trial, Cynthia stated that her health was “very, very bad,” and that she was under the care of two physicians. She had back pain as well as pain in her joints, general fatigue, muscle aches, depression, and blood in her urine. She was taking two different medications. She was currently employed on a full-time basis as a concierge at a large hotel, but her position was subject to lay-offs during holiday seasons and low occupancy periods. Cynthia had previously worked as a hairdresser until she developed a skin problem which required her to stop such work many years prior to the parties’ separation. Her other work experience included employment at a travel agency, retail experience selling purses from her home, and employment as a cocktail waitress.

Cynthia stated that her father made a number of loans totalling approximately $40,000 to her and Michael throughout the course of their marriage. She never kept a record of the loans, but during the two-year period prior to the parties’ separation she kept bank deposit slips as evidence of those transactions. The deposit slips totalled approximately $8,500. Cynthia’s sister paid off a loan in the amount of $787.49 for a furniture bill owed by the couple, which Michael had promised to repay. The sister had also loaned Cynthia $3,000 after the parties separated because Michael was not supporting the family.

Cynthia further testified that Michael usually participates in Sammy’s school activities, has taken an active interest in his upbringing, and that he loves his son. She believed he should be permitted to participate in decisions regarding Sammy’s school and religious education. Similarly, she offered no opposition to Michael’s participation in decisions concerning Sammy’s medical treatment. Cynthia did not object to Sammy spending time with Michael so long as she was apprised of his whereabouts. She stated that on certain occasions Sammy expressed a dislike for spending time with his father when he arrived unexpectedly or while Sammy was at a friend’s house.

Michael, age 39, worked as a circulation driver for a Chicago newspaper. He earned $715 per week. In December 1988, he sustained a work-related shoulder injury. At the time of trial, Michael received temporary disability payments of $436.19 per week. Michael has a claim pending against his employer for this injury; however, the matter has not yet been resolved. Michael was living with his mother and occasionally paid rent.

Doctor Steven Kozlowski testified for Cynthia that he examined her in June 1986. He diagnosed Cynthia’s condition as probable fibromyalgia syndrome, and suspected the possibility of systemic lupus. Doctor Kozlowski next saw Cynthia in June 1987, and ordered a CT scan of the lumbar spine and an electro-myelogram. At that time, Cynthia suffered a herniated disk. She underwent a laminectomy, and he found definite evidence of auto-antibodies in her serum. Cynthia, through Doctor Kozlowski, attempted to establish a connection between the prescription drugs she was taking and the disease of systemic lupus; however, the trial court sustained Michael’s objection to such testimony.

Prior to trial, the court granted Cynthia’s motion in limine barring William Galioto, Michael’s brother-in-law, from testifying at trial as a witness for Michael. Galioto never responded to the subpoena to appear for a deposition at the office of Cynthia’s attorney. At trial, Michael called Galioto as a witness on his behalf. Cynthia reminded the judge of his ruling that Galioto would not be permitted to testify because he wilfully violated and disobeyed a subpoena and refused to appear for his deposition. The judge did not recall making such a ruling. After conducting a brief voir dire of Galioto, he allowed him to testify. Galioto testified that Michael told him that he needed $9,809.06 because the Williams Bay property was going into foreclosure. Galioto loaned the money to Michael, and it had not yet been repaid.

Michael’s monthly financial obligations included child support of $375; maintenance in the amount of $200 per month; mortgage payments of $740 on the Wisconsin property; utility bills of $100 and union dues in the amount of $40.

On May 1, 1989, the court entered an order requiring Michael to pay Cynthia the sum of $275 per month as temporary maintenance, and $473 as temporary child support. In the final judgment entered on October 17, 1991, Michael was ordered to pay Cynthia the sum of $375 per month for child support, and $75 per month as one-half of the child’s monthly day-care expenses. Cynthia was not awarded any maintenance. The court concluded that Cynthia had already received maintenance for four years (in fact, it was for a period of two years) and that she had not established any disability that would preclude her from maintaining employment.

The home located in Elk Grove Village which Cynthia owned prior to the marriage was characterized as Cynthia’s nonmarital property. According to the judge, the parties reduced the mortgage from $31,500 to $22,000, representing a net decrease of $9,500 while Michael resided in the house. The court allowed each party a credit of $4,750 toward said reduction. In addition, the court found that structural improvements were made to the home including a remodeled recreation room, new bathroom, central air conditioning, storm windows and screens, and a new back porch at a total cost of $20,000. The court granted Michael $10,000 credit as his share of the marital funds used to make the improvements.

The court characterized the Williams Bay home as marital property. After reviewing exhibits and hearing the testimony of expert witnesses, the court found the value of the property to be $99,500. The court found debts against the property in the amount of $20,500 (loan from Michael’s mother); $9,809.96 (loan from Galioto); and a $61,500 mortgage. After deducting those debts, the court found the net value of the property to be $8,000. The court awarded the property to Michael, and granted Cynthia $4,000 credit as her share of the property.

The judge addressed the couple’s debts as well and determined that a $1,619.51 debt against a credit management company and a hospital debt for an undetermined amount for services rendered to Cynthia were marital obligations. Each party had a 50% obligation to those creditors. The court found no debt owing to Cynthia’s father due to lack of specificity regarding the terms of the loan and the absence of any documentation. The potential monetary award that Michael was to receive as a result of his injury on the job was classified as marital property which entitled Cynthia to one-half of any sum eventually awarded to Michael.

On appeal, Cynthia first asserts that the order of joint custody is •contrary to the manifest weight of the evidence. Cynthia complains that Michael telephoned Sammy several times a day, and she believes that Michael’s telephone access to Sammy should be limited. She further stated that there have been instances of unannounced and unexpected visitation which occurred "at her home as well as Sammy’s school, and that on several occasions Michael acted inappropriately by picking Sammy up at school and not providing notice to her. She argues that such behavior evinces the parties’ inability to cooperate as required in joint custodial situations.

Generally, a joint custody order consists of an arrangement whereby both parents retain custody of the child and jointly participate in reaching major decisions affecting the child’s welfare. (In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) The circumstances under which the entry of an order of joint custody is appropriate are found in section 602.1 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 602.1(c)), as set forth below: These statutory prerequisites evidence an intent that joint custody only be awarded where circumstances indicate that the parents are willing to cooperate in the upbringing of their children. In re Marriage of Drummond, 156 Ill. App. 3d 672.

“The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:
(1) the ability of the parents to cooperate effectively and consistently with each other towards the best interest of the child;
(2) The residential circumstances of each parent; and
(3) all other factors which may be relevant to the best interest of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 602.1(c).)

Either party can move for an award of joint custody, or the court can make the award on its own motion. (In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 547 N.E.2d 590.) Custody is determined pursuant to the terms of a joint parenting agreement or order. The order shall specify each parent’s powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training. In addition, the order shall further specify a procedure by which changes or disputes may be mediated or otherwise resolved. Ill. Rev. Stat. 1989, ch. 40, par. 602.1(b).

In the present case, the joint parenting order was incorporated into the judgment of dissolution and addressed the parties’ level of commitment, information sharing, decision making, and quality contact and visitation. The order set forth a specific visitation schedule and also stated that there will be no surprise visits or encounters by Michael or deviation from the visitation schedule. A provision was included which stated that in the event the parents cannot agree concerning a vital decision affecting the welfare of the child, the trial court retained continuing jurisdiction to adjudicate any disputed issue.

It is well established that in determining custody, the trial court must assess what is in the “best interest” of the child, and in doing so, must consider all relevant factors. (In re Marriage of Radae (1991), 208 Ill. App. 3d 1027, 567 N.E.2d 760; In re Marriage of Sorenson (1984), 127 Ill. App. 3d 967, 469 N.E.2d 440.) In light of the trial court’s superior opportunity to observe witnesses and evaluate evidence, the trial court is given broad discretion in making a custody determination. In re Custody of Krause (1982), 111 Ill. App. 3d 604, 444 N.E.2d 644.

In the present case, the trial judge’s award of joint custody was not against the manifest weight of the evidence. At trial, Cynthia stated that Michael participates in Sammy’s school activities and has taken an active interest in his upbringing. She did not believe Michael should be excluded from decisions regarding Sammy’s education, religious training or medical treatment. Michael and Cynthia lived in adjoining towns, and Michael drove Sammy to school on many occasions. We also note that the parties had lived apart for several years, yet Michael maintained frequent contact with his son. When Cynthia underwent surgery, Sammy spent a considerable amount of time with his father, and his academic progress was not affected.

The cases in which this court has overturned joint custody awards are factually distinguishable from the present case. In the Drummond case, there was no joint parenting agreement or order, mediation between the parties failed, testimony indicated the parties were unwilling to cooperate with each other, and the trial court failed to consider geographic distance between the parties (one lived in Illinois, the other in Texas). (In re Marriage of Drummond, 156 Ill. App. 3d at 683, 509 N.E.2d at 715.) In Bush, the parties repeatedly exhibited hostility toward each other, sometimes resulting in physical confrontation. In addition, counsel for both parties agreed at oral argument that there was little chance of the parties ever overcoming their mutual feelings of animosity which had existed since the child’s birth. (In re Marriage of Bush, 191 Ill. App. 3d at 263, 547 N.E.2d at 598.) While Cynthia complained that Michael’s surprise visits were disruptive, the trial judge was clear in his admonishment that such visits would not be tolerated in the future, and this warning was included in the joint parenting order.

Cynthia next argues that the order barring her from receiving maintenance is contrary to the manifest weight of the evidence, that insufficient marital property was apportioned to her to provide for her reasonable needs, and that the court failed to consider her medical condition.

Under section 504 of the Act, an award of maintenance is based upon the following factors:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
* * *
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Ill. Rev. Stat. 1989, ch. 40, par. 504.

An award of maintenance is within the discretion of the trial court, and it will not be disturbed by a reviewing court unless there is an abuse of discretion or a determination that the award is against the manifest weight of the evidence. An abuse of discretion will occur where no reasonable man would take the view adopted by the trial court. (In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119.) Despite the great deference we pay to the trial court’s determination in these matters, we find that the court abused its discretion when it failed to take into account all factors enumerated in section 504 with respect to an award of maintenance.

Maintenance may be awarded in any amount and for any time period which the court deems just after considering all relevant factors. (In re Marriage of Orlando (1991), 218 Ill. App. 3d 312, 577 N.E.2d 1334.) Maintenance may be appropriate where a spouse has little prospect of earning sufficient income to meet her needs, even if she is employed. In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E.2d 14.

At the present time, Michael is receiving nontaxable disability payments in the amount of approximately $1,875 per month. This sum will increase once Michael returns to work, as he earns $715 per week, or approximately $3,100 gross per month. In view of the fact that Michael’s expenses include child support in the amount of $375, mortgage payment and utilities on the Wisconsin property in the amount of $840, union dues of $40, in conjunction with the fact that he pays only minimal rent to his mother, Michael has adequate resources to provide maintenance to Cynthia, especially once he returns to work.

Cynthia’s monthly income includes approximately $700 as wages as a hotel concierge, and $375 for child support and $75 as day-care expenses, totalling approximately $1,100. Cynthia’s mortgage payment is $479, and she incurs child-care expenses in the amount of $150. Following the dissolution, Cynthia must acquire her own health insurance, which will cost approximately $132 per month. It appears, therefore, that without an award of some maintenance, Cynthia’s income falls short of the money required to maintain her household.

In addition, we find that the trial court erred when it refused to allow Doctor Kozlowski to testify as to the connection between the prescription drugs Cynthia was taking and the disease of systemic lupus which he had previously suspected. The testimony offered by Doctor Kozlowski established that he saw Cynthia in 1986 and diagnosed her condition as probable fibromyalgia syndrome and suspected the possibility of systemic lupus. When Cynthia attempted to connect the various medications she was taking for the systemic lupus which Doctor Kozlowski had previously discussed, the trial court sustained Michael’s objection. Cynthia then attempted to make an offer of proof to establish that medications she was taking were used to treat systemic lupus. The trial judge refused to allow her counsel to make an offer of proof.

If an offer of proof is necessary, it is error for the trial court to refuse counsel an opportunity to state what was proposed to be proved through the evidence. (In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 539 N.E.2d 808.) Each party is entitled to present evidence which is relevant to his theory of the case and which has any tendency and reason to prove any material fact in issue. In re Interest of A.T. (1990), 197 Ill. App. 3d 821, 555 N.E.2d 402.

Here, we find that it was error for the court to have refused Cynthia’s offer of proof because it would have produced pertinent testimony concerning her physical condition, which was relevant to the issue of whether an award of maintenance was appropriate. Substantial testimony was introduced at trial which indicated that Cynthia had suffered recurring medical problems over the past few years. The record reveals that Cynthia had undergone a laminectomy and that she suffered from lupus. Further, she experienced back pain as well as pain in her joints, general fatigue, muscle aches, depression, and blood in her urine which necessitated the use of two different prescription drugs. It appears, therefore, that the state of Cynthia’s health greatly impacted upon her ability to earn a living. Pursuant to the Act, it was incumbent upon the trial judge to have taken into account Cynthia’s physical condition as a significant factor in determining whether an award of maintenance was proper.

We also note that the trial judge was incorrect when he stated that Cynthia had received maintenance for four years. The record indicates that on May 1, 1989, the court entered a temporary order requiring Michael to pay Cynthia $275 per month as temporary maintenance. The final judgment in which maintenance was barred was entered in October 1991, approximately 2xk years after the temporary maintenance award.

Cynthia next contends that the trial judge improperly granted Michael $4,750 as credit for the reduction of the mortgage lien on the Elk Grove Village residence awarded to her. Belatedly, Cynthia contends that the court’s determination that structural improvements made to the property, including a new recreation room, bathroom, central air conditioning, storm windows and screens and a new back porch totalled improvements in the amount of $20,000. The judge allowed Michael a credit of $10,000 for these structural improvements. Cynthia maintains that the judge’s conclusion is not supported by the record.

Presented with conflicting testimony on the issues, these were findings properly made by the judge as the trier of fact, and we will not disturb them. However, it appears that the mortgage had been reduced by $7,295 rather than $9,500. The credit granted to Michael should be reduced accordingly.

We also reject Cynthia’s argument that the trial judge erred in setting the valuation of the parties’ Wisconsin property at $99,500. Each party presented the testimony of an expert witness as to the value of the property, and the judge accepted the valuation offered by Michael’s expert. The trial judge did not abuse his discretion in doing so.

Cynthia also challenges the court’s assignment of debt with respect to the Wisconsin property. We shall first address the judge’s assessment of $20,500 against the property to repay Michael’s mother. While Cynthia agrees that Michael’s mother lent them $18,162.10 to purchase the property, she contends that there is no suggestion that a lien was granted to the mother or imposed against the property.

Michael’s mother testified that she lent the parties the funds to purchase the Wisconsin property and that she expected to be repaid. At trial, sufficient documentation was produced to demonstrate that Michael’s mother issued several checks from her savings and checking accounts which totalled $18,162.10. We find, therefore, that the trial court did not abuse its discretion when it determined that Michael’s mother lent the parties the money for the down payment, and that she expected to be repaid. We note, however, that the trial judge assessed the amount due to Michael’s mother as $20,500 rather than $18,162.

Cynthia further maintains that William Galioto should not have been allowed to testify concerning a $9,809.06 loan which he allegedly made to the parties. The trial judge forgot that he had barred Galioto from testifying for failure to appear for a deposition at the office of Cynthia’s attorney and permitted him to testify at trial. In view of our remandment, Galioto will have to be deposed before testifying at any subsequent proceeding.

Finally, Cynthia contends that the trial court failed to recognize and address valid debts owed by the parties and that its method of apportionment was plain error. She first claims that the court erred when it failed to characterize the $40,000 given to the parties throughout the course of their marriage by Cynthia’s father as marital debt.

In Illinois, a transfer from parent to child is presumed to be a gift (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 467 N.E.2d 962), and the gift presumption may be overcome only by clear and convincing evidence to the contrary. (In re Marriage of Rosen, 126 Ill. App. 3d 766; Varap v. Varap (1966), 76 Ill. App. 2d 402, 222 N.E.2d 77.) Review of the record reveals that no documentation was produced to establish that Cynthia’s father had in fact loaned the parties this sum of money, nor were any documents introduced to demonstrate a repayment schedule. It is the trial court’s function to resolve conflicting testimony by assessing the credibility of witnesses and the weight to be accorded their testimony. A court’s finding will not be disturbed unless it is against the manifest weight of the evidence. (In re Marriage of Durante (1990), 201 Ill. App. 3d 376, 559 N.E.2d 56.) In this case, we do not believe that the trial court abused its discretion in ruling that the money given to the parties by Cynthia’s father was not marital debt.

Cynthia also contends that the court failed to address certain marital medical debts, as well as a loan made by Cynthia’s sister for furniture in the amount of $787.49, and $3,000 cash for living expenses. We concur with the trial court’s assessment that the hospital debt owed to Good Samaritan Hospital should be shared equally by the parties. However, the trial court failed to address the apportionment of other medical debts. Therefore, the trial court is also directed to determine apportionment, if any, of the medical debts incurred by the parties and an evaluation of the debt allegedly due to Cynthia’s sister.

In sum, the judgment ordering joint custody of the couple’s son is affirmed. The order barring Cynthia from receiving maintenance is reversed, and the cause is remanded for further proceedings in accordance with the views expressed in this opinion. It is further ordered that, for the benefit of both parties, the trial court shall conduct a review of the maintenance order every two years.

Affirmed in part; reversed and remanded in part.

EGAN and GIANNIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    U S G CORPORATION et al., Plaintiffs-Appellees, v. STERLING PLUMBING GROUP, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 1—92—2797
    Opinion filed April 27, 1993.
    Michael T. Hannafan & Associates, Ltd., of Chicago (Michael T. Hannafan, of counsel), and Quarles & Brady, of Milwaukee, Wisconsin (Stuart Parsons, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (Steven J. Harper, P.C., and David A. Coulson, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs, U S G Corporation and U S G Industries, Inc. (collectively USG), sought to recover damages from defendant, Sterling Plumbing Group, Inc. (Sterling), for breach of contract. The circuit court decided the case on the parties’ cross-motions for summary judgment, granting USG’s motion and denying Sterling’s cross-motion. Sterling seeks reversal and remandment with directions to enter judgment in its favor or, alternatively, for reversal and remandment for trial. The issue presented for review is whether the contract clearly or ambiguously contemplated either that Sterling purchase slow-moving inventory assets based upon values calculated in accordance with generally accepted accounting principles (GAAP), or that Sterling pay nothing for such assets because they were not turned over within a 12-month period. For reasons which follow, we affirm.

In 1988, USG entered into an “ASSET PURCHASE AGREEMENT,” through which it sold all assets owned by its Kinkead Division to Sterling, including all Kinkead’s inventory and supplies used in its manufacturing business and sales of shower doors and related items. The contract contained a merger clause which declared that it was the “entire agreement” between the parties, superseding agreements, undertakings, and “all prior discussions, *** written or oral, of any and every nature with respect thereto.”

Under the contract, USG was to prepare a “Preliminary Closing Date Net Asset Statement” (Statement) subsequent to closing, in accordance with GAAP. The only allowable deviations or modifications from GAAP were described in schedule 4.04 to the contract. Schedule 4.04 required that, for the statement, USG will “determine appropriate inventory reserves necessary to provide annual inventory turnover of at least one turn per year based on the previous 12 months’ experience” and that obsolete inventories be reflected at net realizable value or, alternatively, adequate reserves will be provided therefor. Both parties agree that there were three categories of inventory for purposes of the sale: current, slow-moving and obsolete. Schedule 4.04(b) does not mention slow-moving inventory.

USG’s statement calculated a value offset for slow-moving inventory asset reserves based upon “the lower of cost or market” as required by GAAP. The final contract amount that Sterling was required to pay reflected this value of the slow-moving assets. Sterling claimed that slow-moving inventory should not have been assigned any value for purposes of the acquisition, but otherwise did not identify any computational error in calculation of value. Nor did Sterling aver that the GAAP value assigned to slow-moving inventory, if a value was to be assigned, was incorrect.

The resulting dispute created a $416,000 issue that the circuit court resolved in USG’s favor, as follows:

“8. The Court finds that paragraph 2.03 of the Asset Purchase Agreement dated November 9, 1988 is clear and unambiguous that ‘the [Statement] shall be prepared in accordance with [GAAP], with only such deviations or modifications as are described in Schedule 4.04....’
9. That schedule 4.04 is clear and unambiguous.
10. That the slow-moving inventory: a) was not given a zero value in the contract, b) was not included in the specific list of exceptions or modifications to GAAP in Schedule 4.04 and, c) was not included within the current inventory without value.
11. The Court finds that the slow-moving inventory is to be valued in accordance with [GAAP] as set forth in paragraph 2.03 of the Asset Purchase Agreement.”

A final order disposing of all issues in the case was entered on July 16,1992.

I

The standard of appellate review is de novo in summary judgment appeals such as this. (Kousins v. Anderson (1992), 229 Ill. App. 3d 486, 593 N.E.2d 1095.) A contract construed as a matter of law by the circuit court may be independently construed by a reviewing court, unrestrained by the circuit court’s judgment. Marcy v. Markiewicz (1992), 233 Ill. App. 3d 801, 809-10, 599 N.E.2d 1051; Berkeley Properties, Inc. v. Balcor Pension Investors II (1992), 227 Ill. App. 3d 992, 998, 592 N.E.2d 63; Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 240, 494 N.E.2d 830, appeal denied (1986), 112 Ill. 2d 598 (Zale).

The principal objective in construing a contract is to determine and give effect to the intention of the parties at the time they entered into the contract (Zale, 145 Ill. App. 3d at 241; Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 427 N.E.2d 585). An ambiguity is not created by the mere fact that, as here, the parties do not agree upon an interpretation. (Zale, 145 Ill. App. 3d at 241; Harlem-Irving Realty, Inc. v. Alesi (1981), 99 Ill. App. 3d 932, 425 N.E.2d 1354.) Whether or not the contract is ambiguous is an issue of law. (Ancraft, 100 Ill. App. 3d at 697.) A court may consider extrinsic evidence provisionally for the limited purpose of determining whether an ambiguity exists. U I D C Management, Inc. v. Sears Roebuck & Co. (1986), 141 Ill. App. 3d 227, 230, 490 N.E.2d 164.

Sterling contends that the purchase agreement does not allow USG to assign any salvage value to slow-moving inventory because the express language of schedule 4.04 required zero valuation for slow-moving inventory, and there is no language in the agreement that supports treating slow-moving inventory in the same manner as obsolete inventory. Sterling maintains further that paragraph 2.03 of the purchase agreement, which states that GAAP shall apply except for “such deviations or modifications as are described in Schedule 4.04,” sanctions the 12-month turnover definition of inventory as a deviation or modification with respect to GAAP.

Schedule 4.04(b) required that USG set up “appropriate inventory reserves necessary to provide annual inventory turnover of at least one turn per year based on the previous 12 months’ experience.” Sterling insists that these reserves were not in accordance with GAAP because GAAP require inventory to be valued at the lower amount of either cost or market value, not on the amount of turnover in a year. Sterling concludes, therefore, that the reserves were specific deviations from GAAP, which allegedly were designed to reflect the parties’ agreement that Sterling would pay only for current and obsolete inventory, but was required to pay nothing for slow-moving inventory.

Paragraph 2.03 of the agreement sets forth the procedure for valuing all assets that Sterling was buying:

“Post-Closing Adjustment. As soon as practicable after the Closing, [USG] shall prepare *** a [Statement of net assets for the Division as of the end of business of the Closing Date (the [Statement]). The [Statement] shall be prepared in accordance with [GAAP], with only such deviations or modifications as are described in Schedule 4.04 hereto.”

Schedule 4.04(b), as incorporated, lists the only exception to the application of GAAP in the preparation of the Statement. Schedule 4.04 does not mention slow-moving inventory. In fact, slow-moving inventory was originally included in the second clause of schedule 4.04(b), but was stricken out of the clause by Sterling itself. It is clear from paragraph 2.03 of the agreement, therefore, that slow-moving inventory, not having been listed specifically in schedule 4.04(b), was to be valued in accordance with GAAP, which is what USG did here.

Sterling’s assertion, that the circuit court erred in concluding that slow-moving inventory was not included in the specific list of exceptions or modifications to GAAP as set forth in schedule 4.04, is based upon its reading that inventory reserves should be established to exclude any value for inventory that does not turn at least once in the 12-month period with the only exceptions being new product lines, safety shoes or repair parts. Therefore, because no “value” was set for slow-moving inventory, such inventory was of no value. Such an interpretation, however, would require that the setting of a 12-month turnover period for valuing current inventory carried with it the requirement that GAAP be ignored in valuing slow-moving inventory, which the parties themselves did not provide for. The practical effect would be to require Sterling’s payment only for the most current assets and for the least current assets, but to pay nothing for the middle category.

To accept Sterling’s construction would necessitate that section 2.03 be considered nugatory or ignored. Under New York law, which applies under the agreement, and Illinois law as well, a court will not interpret a contract in a manner that would render a provision meaningless (Corhill Corp. v. S. D. Plants, Inc. (1961), 9 N.Y.2d 595, 176 N.E.2d 37, 217 N.Y.S.2d 1; Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp. (1985), 106 A.D.2d 242, 485 N.Y.S.2d 65; Berkeley Properties, Inc. v. Balcor Pension Investors II (1992), 227 Ill. App. 3d 992, 592 N.E.2d 63), and we decline to do so here.

II

Sterling asserts that if the circuit court found the language of the agreement ambiguous, it improperly resolved the ambiguity in favor of USG because the extrinsic evidence allegedly shows that the agreement was meant to exclude payment for slow-moving inventory. We need not consider this argument since we find, in our independent analysis, no ambiguity in the contract terms to justify consideration of extrinsic evidence. We note, however, that the circuit court also found the contract terms clear and unambiguous, and in its analysis assumed any ambiguity arguendo. As Sterling represented to the circuit court before judgment on the respective motions, we also find no genuine triable, material issue of fact as would foreclose the grant of summary judgment. (Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 466 N.E.2d 1271.) Raising such an issue, as here, at the brink of defeat on appeal, contravenes the rule that issues not presented for determination by the circuit court will not be considered on review. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417; In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 545 N.E.2d 731.

For the reasons set forth above, we affirm the grant of summary judgment to USG and the denial thereof to Sterling on its cross-motion.

Affirmed.

McCORMICK, P.J., and SCARIANO, J., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODERICK TAYLOR, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—2094
    Opinion filed May 10, 1993.
    Rita A. Fry, Public Defender, of Chicago (James M. Perlman, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Katherine S.W. Schweit, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Roderick Taylor, was charged with burglary, and following a bench trial, he was convicted on that charge. The trial court sentenced defendant in absentia to three years’ incarceration in the Illinois Department of Corrections. The assistant public defender filed a notice of appeal at the conclusion of the sentencing hearing; however, the State maintains that this appeal should be dismissed because defendant fled the jurisdiction before his sentencing (People v. Partee (1988), 125 Ill. 2d 24, 37, 530 N.E.2d 460) and has failed, as of yet, to return to the jurisdiction. We agree that this appeal should be dismissed. Our reasons follow.

It is well established that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. What has come to be known as the “fugitive dismissal rule” was applied for the first time by the United States Supreme Court in Smith v. United States in 1876. (See Smith v. United States (1876), 94 U.S. (4 Otto) 97, 24 L. Ed. 32.) In that case, an escaped defendant remained at large when his petition arose before the Court. The Court dismissed the case, holding that there could be no assurance that any judgment it issued would prove enforceable. In addition to the dismissal rule based upon “enforceability” concerns, the Court has authorized dismissal based upon a “disentitlement” theory. In Molinaro v. New Jersey (1970), 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498, the Court issued an additional rationale for dismissal of an escaped prisoner’s pending appeal. In that case the Court stated:

“No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.” Molinaro, 396 U.S. at 366, 24 L. Ed. 2d at 587-88, 90 S. Ct. at 498-99.

Further, in Estelle v. Dorrough (1975), 420 U.S. 534, 43 L. Ed. 2d 377, 95 S. Ct. 1173, the Court upheld the constitutionality of a Texas statute providing for automatic appellate dismissal when a defendant escapes during the pendency of his appeal, unless the defendant voluntarily returns within 10 days. Estelle further rationalized that dismissal of an appeal of a defendant who flees the jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice. (Estelle, 420 U.S. at 537, 43 L. Ed. 2d at 380-81, 95 S. Ct. at 1175.) Thus, it is clear that our Supreme Court approves of dismissal as an appropriate sanction when a prisoner is a fugitive during the “ongoing appellate process.”

Recently the Court revisited the fugitive dismissal rule under narrower circumstances in Ortega-Rodriguez v. United States (1993), 507 U.S._, 122 L. Ed. 2d 581, 113 S. Ct. 1199, in an opinion decided on March 8, 1993. In that case the defendant fled the jurisdiction while his case was pending in the district court; however, he was recaptured before sentencing and appeal. The eleventh circuit held that defendant waived his right to appeal from the conviction unless he was able to prove that his absence was due to matters completely beyond his control. The Supreme Court granted certiorari to consider the specific issue not previously addressed.

The Court there concluded that while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system. The Court stated that absent some connection between a defendant’s fugitive status and his appeal, as provided when a defendant is at large during “the ongoing appellate process” (Estelle, 420 U.S. at 542 n.11, 43 L. Ed. 2d at 383 n.11, 95 S. Ct. at 1178 n.11), the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply. Yet the Court refused to unequivocally hold that a court of appeals is entirely without authority to dismiss an appeal because of fugitive status predating the appeal.

Moreover, the Supreme Court did not vacillate from the century-old rule. To the contrary, it reiterated that the contempt for appellate process manifested by flight while a case is pending on appeal remains subject to the rule of Molinaro.

Similarly, Illinois courts traditionally have followed the century-old rule establishing that an appellate court has the discretionary power to refuse to hear a fugitive’s appeal (see McGowan v. People (1882), 104 Ill. 100), unless or until the fugitive voluntarily returns to the jurisdiction of the court (People v. Estep (1952), 413 Ill. 437, 439, 109 N.E.2d 762, cert, denied (1953), 345 U.S. 970, 97 L. Ed. 1387, 73 S. Ct. 1112, reh’g denied (1953), 346 U.S. 842, 98 L. Ed. 362, 74 S. Ct. 15). Further, unless the fugitive returns within the time fixed by the court, the writ of error will be dismissed. Estep, 413 Ill. at 441.

However, in 1985, this court declined to follow Estep. (See People v. Sayles (1985), 130 Ill. App. 3d 882, 474 N.E.2d 870.) In Sayles, this court stated that it would decide the appeal on its merits on the basis of the circumstances of that case and in light of the enactment of section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115—4.1). Pursuant to section 115 — 4.1, a defendant may be entitled to a new trial if he can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. The court there initially found that section 115—4.1, entitling defendant to a new trial upon application to the trial court and upon a proper showing after conviction in absentia, did not render nonappealable an otherwise final conviction and sentence in absentia. However, the court did not advance any reasons for hearing the appeal such as counsel’s choice to file the notice of appeal rather than a section 115—4.1 petition which may have resulted in the denial of any relief whatsoever, appellate or post-trial. Neither did the court attempt to clarify its diversion from the generally accepted "fugitive dismissal rule.”

Although the Sayles opinion suggests a dilemma and possible conflict between the circuit court’s jurisdiction over a defendant’s statutory challenge to an in absentia conviction and the appellate court’s authority over a direct appeal from that same conviction, our supreme court has held that no conflict exists. (See People v. Partee, 125 Ill. 2d 24, 530 N.E.2d 460.) While Partee, wherein the defendant was tried in absentia but was not informed when trial would begin, presents a different factual matrix than the present case, the supreme court did take the opportunity there to reinstate the precedential significance of the fugitive dismissal rule. The court expressly stated: “We do not hold that the appellate court must hear a fugitive’s appeal in all instances. We adhere to the century-old rule that an appellate court has the discretionary power to refuse to hear a fugitive’s appeal unless and until the fugitive returns to the jurisdiction.” (Emphasis in original.) Partee, 125 Ill. 2d at 37.

• 2 In the present case, we exercise our discretionary power to refuse to hear defendant’s appeal. Although he was present during the short trial and at the time of conviction, defendant immediately absented himself from the trial court. He did not appear in court on the return date for the presentence investigation report and neither did he appear four days later, at which time the trial court entered the sentence in absentia. This is not a case where defendant requested a section 115 — 4.1 hearing (Sayles, 130 Ill. App. 3d 882, 474 N.E.2d 870), one in which he was recaptured before sentencing and appeal (Ortega-Rodriguez, 507 U.S._, 122 L. Ed. 2d 581, 113 S. Ct. 1199), or one in which he subsequently made it known to the appellate court that he intended to prosecute the appeal and abide by whatever judgment was rendered (Partee, 125 Ill. 2d 24, 530 N.E.2d 460). In Partee (125 Ill. 2d at 37), the supreme court stated that the appellate court appeared to have exercised its discretionary power by granting defendant leave to file an affidavit expressing his interest in and desire to prosecute the appeal.

Here, we have testimony at trial that defendant fled when first approached by the police officers at the scene of the burglary. Although this testimony was contradicted by defendant, who, claiming misidentification, testified he was nowhere near the scene of the crime, his subsequent flight and failure to reappear do not convince this court that such factors mandate a deviation from the century-old rule. The concerns about the enforceability of any judgment issued and the rationale for the “disentitlement” theory that construes a defendant’s flight during the pendency of his appeal as tantamount to waiver or abandonment fit squarely with the present case. Neither is the present factual matrix in line with Ortega-Rodriguez. To date, defendant remains a fugitive from justice during the “ongoing appellate process.” Neither are we called upon to address a matter determining whether defendant’s former fugitive status in any way affects the appellate process.

Finally, after oral argument the public defender complied with this court’s request by providing additional authority on the instant issue. We have reviewed the two cases cited to this court by the public defender as authority for the proposition regarding the appellate court hearing appeals of defendants who have absented themselves during some part of the trial proceedings. See People v. Denny (1993), 241 Ill. App. 3d 345; People v. Velasco (1989), 184 Ill. App. 3d 618, 540 N.E.2d 521.

Initially, we note that the narrow issue here regarding the defendant’s continued absence during the appellate process is distinguishable from that raised in Velasco, which discussed defendant’s absence during some part of the trial. In Velasco, a jury trial was held in defendant’s absence and he was tried in absentia and convicted. The question on appeal there was whether defendant waived his right to be present during trial within the purview of section 115 — 4.1(a). (See Ill. Rev. Stat. 1985, ch. 38, par. 115—4.1(a).) Nowhere is there mention of defendant’s continued absence during the appeal process. Although the Denny decision also states that the trial court sentenced him in absentia, it addresses neither the issue of defendant’s absence during a part of the trial proceedings, as in Velasco, nor his absence during the appellate process. Thus, we conclude that neither of these opinions add anything or alter our analysis here.

Accordingly, believing this case to be an appropriate one for application of the long-established fugitive dismissal rule, we thus dismiss the appeal.

Appeal dismissed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE BUCKLEY

text:
    CASUALTY INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. E.W. CORRIGAN CONSTRUCTION COMPANY, INC., Defendant and Counterplaintiff-Appellant.
    First District (1st Division)
    No. 1—91—2403
    Opinion filed May 17, 1993.
    Schaffenegger, Watson & Peterson, Ltd., of Chicago (John J. Piegore, of counsel), for appellant.
    Kiesler & Berman, of Chicago (Robert L. Kiesler and Patti M. Deuel, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Casualty Insurance Company (Casualty), brought a declaratory judgment action against defendant, E.W. Corrigan Construetion Company, Inc. (Corrigan), seeking a declaration that it had no duty to defend or indemnify Corrigan due to Corrigan’s failure to comply with the notice requirement of an insurance policy. Corrigan then filed a cross-motion for declaratory judgment and a motion for summary judgment. Casualty responded by filing a cross-motion for summary judgment. The trial court entered summary judgment in favor of Casualty and against Corrigan on the grounds that the notice by Corrigan was not given “as soon as practicable” as required by the contract.

Corrigan is a Delaware corporation licensed to do business in Illinois. It is a general contractor involved in building construction. In July 1986, Corrigan was the general contractor for Phase Two of the construction of the Stewart Glenn Apartments project (Stewart Glenn) in Willowbrook, Illinois. E.W.C. Contractors, Inc. (E.W.C.), is an Illinois corporation. E.W.C. is a concrete subcontractor and was never involved in any manner with the Stewart Glenn construction project.

Corrigan and E.W.C. share the same suite of offices at 1900 Spring Road in Oakbrook, Illinois, and have the same phone number. Additionally, the officers of both corporations are the same. Corrigan employs secretaries, accounting clerks, and a controller while E.W.C. does not employ office help. Consequently, phone calls to E.W.C. are answered by employees of Corrigan. Additionally, any paperwork for E.W.C. is done and received by employees of Corrigan.

The Gustafson-Lindberg Company (Gustafson) was the subcontractor on the Stewart Glenn project. Gustafson had two insurance policies with Casualty: an employer’s liability policy (WC 85 — 28367), which covered Gustafson against any workers’ compensation claims, and a general liability policy (GAL 85 — 28367), which insured against any claims of bodily injury or property damage. The Insurance Group, Inc. (Insurance Group), is an insurance “producer” authorized by Casualty to issue insurance certificates in Casualty’s name. The Insurance Group issued a certificate adding Corrigan as an additional insured on Gustafson’s general liability policy. According to the policy, it is a prerequisite to coverage that Casualty be given notice of any incident which it may ultimately be under a duty to indemnify or defend. The relevant portion of the policy provides as follows:

“4. Insured’s duties in the event of occurrence, claim, or suit:
(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons, or other process received by him or his representative.”

Gerard Hernon (Hemon) was an employee of Gustafson. On July 29, 1986, Hernon was injured while on the job at the Stewart Glenn jobsite when he fell from the roof. On July 30, 1986, Gustafson mailed written notice of the incident by sending to Casualty “Form 46” captioned “Employer’s First Report of Injury or Illness.” Casualty received the notice on or about August 1, 1986. The form referenced Gustafson’s employer liability number WC 85 — 28367 and included, inter alia, the name of the injured employee, the date, place and circumstances of the occurrence, the name of the insured, Gustafson, and the fact that Gustafson was a subcontractor on the job. The form did not mention Corrigan, nor did it reference Gustafson’s general liability policy, number GAL 85 — 28367. According to Casualty’s answers to interrogatories, Casualty then opened a workers’ compensation file. Its investigation centered around the extent of Hernon’s injuries and, after Hemon’s workers’ compensation claim was settled, the file was closed.

On July 29, 1988, the last day of the two-year statute of limitations, Hemon filed suit against E.W.C. for personal injuries arising out of his fall at the Stewart Glenn jobsite. On August 4, 1988, E.W.C. received service of summons and complaint at its offices. On August 5, 1988, it tendered the defense of the case to the Wausau Insurance Company. The summons and complaint were the first notice to either E.W.C. or Corrigan of the occurrence involving Hemon.

Subsequently, Hernon realized he mistakenly had sued the wrong party and E.W.C. was dismissed from the suit. On April 21, 1989, Hemon filed an amended complaint against Corrigan. On May 19, 1989, Corrigan was served with summons and complaint and the same day it tendered its defense to Casualty claiming it was an additional insured under the general liability policy written for Gustafson. On June 2, 1989, Corrigan sent its second notice to Casualty of the occurrence. On February 21, 1990, Casualty filed its complaint seeking a declaration that it was not obligated to defend or indemnify Corrigan. Casualty asserted that Corrigan “knew or should have known” from the date the original suit incorrectly was filed against E.W.C. in July 1988 that a claim was being asserted against it. Therefore, its failure to notify Casualty until May 1989 was a breach of the provision of the insurance contract requiring reasonable notice. Subsequently, on March 26,1990, Casualty refused Corrigan’s tender of defense.

On October 2, 1990, Corrigan filed a counterclaim for declaratory judgment. Corrigan then filed a motion for summary judgment in which it maintained that it gave reasonable notice to Casualty. Casualty filed a cross-motion for summary judgment contending that Corrigan violated the policy’s notice requirement by failing to give notice for more than nine months. On June 26, 1991, the trial judge heard arguments on the motions and granted summary judgment in favor of Casualty and against Corrigan.

The trial judge held that Corrigan breached the notice requirement of the insurance contract by not giving notice “as soon as practicable.” The judge found that Corrigan received notice of the occurrence when E.W.C. was served with summons and complaint and, at that time, should have informed Casualty of the existence of a potential claim. The judge also concluded that the notice to Casualty from Gustafson immediately following the occurrence did not inure to the benefit of Corrigan because of the “significant differences with respect to the liability question in a personal negligence lawsuit and workmen’s compensation cases.” Therefore, the judge held that Corrigan failed to give reasonable notice under the circumstances to Casualty as a matter of law and entered summary judgment for Casualty. Corrigan appeals.

The first issue to be addressed is whether notice of an occurrence from the employer of an injured party under a workers’ compensation policy satisfies the notice requirements for an additional named insured under a general liability policy issued by the same insurer. Specifically, the question in this case is whether the timely notice of the occurrence given by Gustafson to Casualty inured to Corrigan’s benefit by including “particulars sufficient to identify the insured.” This is an issue of first impression in Illinois as no Illinois court has addressed the portion of an insurance contract’s notice provision which requires that the insured be sufficiently identified.

Casualty asserts that the workers’ compensation notice by its insured, Gustafson, was insufficient to satisfy the additional insured’s, Corrigan’s, notice obligations under the general liability policy. Specifically, Casualty points out that Gustafson’s notice did not name Corrigan and did not refer to Gustafson’s general liability policy. The notice only referred to Gustafson’s workers’ compensation policy.

Corrigan, on the other hand, points to the “plain language” of the policy. Corrigan argues that the policy does not require that an insured be explicitly named or that the party giving notice “identify to the insurer which of two policies, general liability or worker[s’] compensation, may cover a particular personal injury occurrence.”

A general principle in Illinois is that insurance policies are to be liberally construed and clear provisions are to be interpreted in their “ ‘plain, ordinary, and popular sense.’ ” (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 74, 578 N.E.2d 926, 930, quoting Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 121, 294 N.E.2d 7, 12.) Any ambiguities are to be interpreted in favor of the insured. (United States Fidelity & Guaranty Co., 144 Ill. 2d at 74, 578 N.E.2d at 930.) Additionally, notice to an insurer of an occurrence need not be given by the insured to be sufficient; any responsible person may be the source of the information “as long as a reasonable notice is given.” (Gregory v. Highway Insurance Co. (1960), 24 Ill. App. 2d 285, 296, 164 N.E.2d 297, 302.) In view of the “plain language” of the provision which requires that notice include “particulars sufficient to identify the insured,” we must initially agree with Corrigan that failure to include the name of the additional insured and the relevant policy number is not, in and of itself, fatal to the adequacy of the notice.

Corrigan next contends that Gustafson’s notice provided all the necessary “particulars” such as the time, place and circumstances of the occurrence such that Corrigan could easily be identified as an additional insured “from the policy documents readily available to Casualty.” Casualty responds, however, that the documents identifying Corrigan as an additional insured are not readily available to it and, therefore, the notice provided was insufficient. Casualty asserts that, although the Insurance Group had the authority to issue an insurance certificate naming Corrigan as an additional insured, “Casualty did not have a copy of the certificate, nor did its procedure mandate that it have a copy.” According to Casualty, it relies upon the notice provision of its insurance contracts which requires that notice of an occurrence include “particulars sufficient to identify the insured.” Casualty asserts that Corrigan’s argument would require the court to ignore the terms of the contract and would shift the obligation of notice of an occurrence from the insured to the insurer. Casualty contends that, if Corrigan prevails, the investigation the insurance companies would need to conduct would be both impractical and economically unfeasible. Casualty maintains that, after initial notice of an occurrence, it would have to determine if any other of its policies were in force. This would mean that the insurance company not only could not safely stop with reviewing the policies in its possession, but would have to contact “all of its producers, agents, and/or brokers which may have, during the respective policies periods, issued any certificates of insurance naming an additional insured.” Casualty asserts that, in contrast to this burdensome investigation, all Corrigan needed to do is to provide written notice of the incident and to identify itself as an additional insured under Gustafson’s policy.

Casualty is correct in that all Corrigan had to do was to provide notice identifying itself. However, the notice provision, which we note was written by the insurance company, only requires “particulars sufficient to identify the insured” and not written notice expressly identifying the insured. We cannot say that the insured must provide a type of notice which the policy does not require.

According to Casualty, if a policy is written or an insured is added to an existing policy, Casualty does not know until notice of an occurrence is sent to it by the insured. If this is so and Casualty does not keep track of who it has insured, how does Casualty determine what its monetary reserves require or even what its projected liability over a period will be? On its face, it is nonsensical to contend that Casualty does not know who it has insured, or that, once Casualty receives notice of an occurrence, it would be “impractical and economically unfeasible” for it to determine if other policies are in force.

Casualty also argues that notice of a workers’ compensation claim should not be deemed to satisfy the notice requirement of a general liability policy handled by a different department and cites to Mollihan v. Stephany (1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465, for the proposition that knowledge of one department of an insurance company is not automatically attributed to another department. In Mollihan (52 Ill. App. 3d at 1036, 368 N.E.2d at 467), defendant made a “material misrepresentation” on his application for automobile insurance and, when the misrepresentation was discovered, the company began the process of rescinding the policy. Before the rescission information was able to be processed into the computer, however, defendant was involved in a collision and an agent for the insurance company paid defendant for the damage to his car. The Mollihan court held that the insurance company did not waive the defense of rescission because no intent to relinquish the defense could be implied from the conduct of the insurer or its agent. The agent’s lack of knowledge of the rescission when he paid the claim was based solely on the fact that the information had not yet been given to the computer. (Mollihan, 52 Ill. App. 3d at 1041, 368 N.E.2d at 471.) Additionally, the court noted that in order to find waiver, it must be clear that to allow the defense to be advanced would be “unjust, inequitable or unconscionable.” (Mollihan, 52 Ill. App. 3d at 1041, 368 N.E.2d at 471.) Based on this case, defendant asserts that notice to one department of an insurance company should not be attributed to another department.

The Mollihan case is clearly distinguishable. The issue of whether the insurer has waived a defense is not analogous to whether it has received adequate notice of an occurrence. Waiver of a defense requires an intent implied from the insurer’s conduct. (Mollihan, 52 Ill. App. 3d at 1041, 368 N.E.2d at 470.) If a department of an insurance company inadvertently does not have notice of certain information, intent to waive a defense clearly cannot be implied. This does not mean the department would not be held to have notice of that information in a different situation or context.

We believe that “the better rule of law” is that a department of an insurance company should not be able to “disclaim knowledge of that which is known to another department of the same company.” As Corrigan points out in its brief “a contrary rule would put a premium on ignorance and encourage insurers to conceal their knowledge.” We find persuasive the following rhetorical question from Duggan v. Travelers Indemnity Co. (1st Cir. 1967), 383 F.2d 871, 874:

“[0]nce a notice of claim is filed, is it too much to ask that an insurer have a reasonable filing system, that its employees check the files for more than one policy covering the same insured for the same risk, and that, if questions arise over coverage, it surface them and, while reserving such rights as it sees fit to assert, proceed both to preserve the rights of its policyholder and itself? [Citation.] We think not. And we are confident that contemporary office systems and management are up to the task.” (Duggan, 383 F.2d at 874.)

If notice of an occurrence is sent to a large insurance company, there is “no reasonable excuse” why that notice should only be received by the workers’ compensation department and not the liability department. We agree with the Duggan court and conclude that an insurer “ ‘is chargeable with knowledge of all policies issued by it to the insured.’ ” (Duggan, 383 F.2d at 875, quoting Dietlin v. General American Life Insurance Co. (1935), 4 Cal. 2d 336, 351, 49 P.2d 590, 598.) In other words, if an insurer receives timely written notice of an occurrence, it is “sufficient to charge [the insurer] on all policies running in favor of the insured.” (Dietlin, 4 Cal. 2d at 350, 49 P.2d at 597.) Additionally, we note that the policy requires that notice be given “to the company or any of its authorized agents.” It does not require that notice be given to a specific department of the company. Therefore, if an insured notifies its insurer of an occurrence and references its workers’ compensation policy, it should be considered notice in regard to any general liability policy the insured might have with the same insurer. (See Dietlin, 4 Cal. 2d at 350-51, 49 P.2d at 597-98 (notice referring to a policy concerning one department of insurer satisfies the requirements of notice in another policy concerning a different department).) Consequently, it should also be considered adequate notice to the insurer for any additional insured named on the general liability policy.

Casualty asserts, however, that an investigation undertaken pursuant to a general liability policy is “completely different” from an investigation pursuant to a workers’ compensation claim. Since fault is not an issue, a workers’ compensation investigation is concerned with the extent of the injury and whether it was incurred during the scope of employment. An investigation pursuant to a liability policy, on the other hand, is concerned with the question of liability. Casualty cites several cases from other jurisdictions which recognize the potential difference between a workers’ compensation investigation and a liability investigation. In Commercial Contractors Corp. v. American Insurance Co. (1964), 152 Conn. 31, 202 A.2d 498, Commercial contended that American was not prejudiced by lack of timely notice since it had received notice from another entity pursuant to a workers’ compensation policy and had immediately conducted an investigation. In the context of determining whether American was prejudiced by lack of timely notice, the supreme court of errors of Connecticut determined that Commercial had the burden of showing lack of prejudice to American and without evidence in the record of the extent and nature of American’s investigation “it [cannot] be held as a matter of law on the facts before us that the compensation investigation was substantially similar to an investigation which would have been made under a liability policy or was or should have been of a character such as to result in the discovery of Commercial as an additional, unnamed insured under [the] liability policy.” (Emphasis added.) (Commercial Contractors, 152 Conn, at 39, 202 A.2d at 502.) In Philadelphia Electric Co. v. Aetna Casualty & Surety Co. (1984), 335 Pa. Super. 410, 417, 484 A.2d 768, 771-72, the superior court of Pennsylvania stated:

“[A]s the lower court’s opinion correctly points out, the investigation conducted by Aetna pursuant to that [workers’ compensation] claim was materially different from the type of investigation Aetna would have conducted in preparation for this personal liability defense. Therefore, we cannot say that this worker’s compensation claim, in and of itself, alerted Aetna of its potential responsibility.”

We recognize that there is potentially a distinct difference between an investigation undertaken pursuant to a workers’ compensation claim and an investigation started in connection with a general liability policy. An insurer should not be able to claim prejudice on this ground, however, simply because the insured referenced his workers’ compensation file and not any general liability policies he may have had with the insurer when he sent notice. The requirement that notice of an occurrence be given to the company and include “particulars sufficient to identify the insured” does not require that, if the insured holds more than one policy with the insurer, he identify to the insurer which of the two policies, general liability or workers’ compensation, covers the particular accident nor that the notice be directed to a particular department. As Corrigan points out, its business and Gustafson’s business is construction, not insurance. Therefore, the burden of determining how to treat an insured’s notice of occurrence should fall solely upon the insurer. If Casualty treated Gustafson’s notice of occurrence solely as a workers’ compensation case, the decision was solely Casualty’s, and the burden of any difference in the focus of its investigation must lie with the insurance company. As the Dietlin court stated, “[t]he defendant’s division of its business among several departments should not be permitted to work a hardship upon the insured.” (Dietlin, 4 Cal. 2d at 350, 49 P.2d at 598.) We note the commonsense reasoning of the Duggan court when it asks

“whether there are many [insureds] who can answer correctly the question: for just what risks are you covered by your various policies, or, how comprehensive is a comprehensive policy? We grant that basic commitments are to be undertaken seriously by policyholders. And one of the most important is to inform the insurer when and how — and soon — [that] something has happened that has or might hurt them. This done, we think they have fulfilled their initial duty.” Duggan, 383 F.2d at 874.

Casualty cites Employers’ Liability Assurance Corp. v. Travelers Insurance Co. (2d Cir. 1969), 411 F.2d 862, 866, which stands for the proposition that notice to an insurer by the employer of an injured employee for purposes of workers’ compensation coverage is insufficient to serve as notice by an unnamed additional insured under an automobile liability policy. This case is distinguishable, however, because the additional insured was unnamed and was an insured by virtue of his status as a permissive user of a motor vehicle. Short of being expressly notified of the insured’s existence, the insurer would never know of him. In this case, however, Corrigan was an additional insured who was named in the certificate of insurance as an additional insured.

In support of its argument that Gustafson’s notice to Casualty was sufficient to satisfy its obligation to give notice, Corrigan refers the court to three cases in addition to Duggan. Corrigan cites to Sinclair Oil Corp. v. New Hampshire Insurance Co. (1970), 107 R.I. 469, 477, 268 A.2d 281, 285, in which the insurance company argued that because notice was received from its named insured in connection with its workers’ compensation policy, it was insufficient to satisfy the notice requirement required to be given by the additional insured under a general automobile liability policy. The supreme court of Rhode Island held that, in view of the fact that the insurance company was informed of the name of its named insured, the notice of occurrence given in connection with a workers’ compensation policy was sufficient to satisfy the additional insured’s notice obligation under the general policy issued by the same insurer. (Sinclair, 107 R.I. at 477, 268 A.2d at 285.) The Sinclair court stated that the insurance company was “without standing to claim that one of its divisions is so unrelated to another as to make notice to one inoperative to the other.” Sinclair, 107 R.I. at 477, 268 A.2d at 285.

In Western Freight Association v. Aetna Casualty & Surety Co. (W.D. Pa. 1966), 255 F. Supp. 858, 861, aff’d (3d Cir. 1967), 371 F.2d 541, the named insured gave notice one day after the accident. The Western Freight court reasoned that the notice from the named insured placed Aetna in a position to be able to identify the additional insureds and determine “on whose behalf notice should be deemed to have been given.” (Western Freight, 255 F. Supp. at 862.) The court concluded, therefore, that the notice from the named insured inured to the benefit of the additional insureds because Aetna had prompt notice of the occurrence, knowledge of all the relevant facts of the incident, and was not prejudiced. Western Freight, 255 F. Supp. at 862.

Finally, in Employers Casualty Co. v. Glens Falls Insurance Co. (Tex. 1972), 484 S.W.2d 570, 574-75, the supreme court of Texas addressed the issue of whether written notice of an accident from a named insured inured to the benefit of an additional insured. The question was one of first impression for the court. The Texas court concluded that, although there is a difference of opinion in other jurisdictions,

“the weight of authority and the better rule appears to be that written notice of an accident by the named insured inures to the benefit of any additional or omnibus insureds if it is timely and sufficient to place the insurer on inquiry as to the extent of its possible liability and omnibus coverage under the policy.” (Employers Casualty, 484 S.W.2d at 575.)

Additionally, the Texas court noted that there was evidence in the record that, in response to the notice, the insurance company made “a timely, full and complete investigation” of the accident. (Employers Casualty, 484 S.W.2d at 576.) Therefore, the purpose of the notice requirement was fulfilled and the insurer was not prejudiced by any lack of notice. As a result, the court held that the notice from the named insured satisfied the additional insured’s obligation and that any other conclusion would permit the insurer “to escape liability on a technicality” unrelated to its ability to promptly investigate the accident and prepare to defend any claims thereafter asserted against the additional insureds. Employers Casualty, 484 S.W.2d at 576.

After reviewing the arguments, briefs, and authority from this and other jurisdictions, we conclude that the timely notice from Gustafson referencing its workers’ compensation policy was “sufficient to place the insurer on inquiry as to the extent of its possible liability.” Therefore, the notice satisfied the requirements for Corrigan as an additional named insured under a general liability policy issued by Casualty by including “particulars sufficient to identify the insured.” Consequently, we reverse the trial court’s entry of summary judgment in favor of Casualty and against Corrigan and enter judgment in favor of Corrigan and against Casualty. In light of our disposition of this issue, we need not determine whether Corrigan’s notice to Casualty nine months after it became aware of the occurrence constituted reasonable notice.

For the foregoing reasons, we reverse the decision of the circuit court of Cook County and remand with instructions to enter an order consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.