author: JUSTICE CAMPBELL

text:
    JOSEPH CICMANEC, Plaintiff-Appellant, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—1632
    Opinion filed April 24, 1989.

      Augustine & Kern, Ltd., of Chicago (Alan Rhine, of counsel), for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is an administrative review action. Plaintiff, Joseph Cicmanec, a chiropractor, appeals from an affirmance by the circuit court of an order entered by the Department of Registration and Education, now known as the Department of Professional Responsibility (the Department), which found that plaintiff had engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public in violation of section 16(5) of the Medical Practice Act (the Act) (Ill. Rev. Stat. 1985, ch. 111, par. 16(5)), and which suspended plaintiff’s chiropractor license for two years with the concurrent requirement of 100 hours of continuing medical education, followed by two years of probation.

On appeal, plaintiff contends that: (1) the three-year statute of limitations set forth in section 16(5) of the Act deprived the Department of jurisdiction to review the propriety of plaintiff’s diploma from CETEC and his applications to take the ECFMG exam; (2) the Department admitted prejudicial evidence at the hearing which was barred by the Act’s three-year limitations period; and (3) the Department’s findings of fact failed to establish that plaintiff had engaged in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public in violation of section 16(5) of the Act. For the following reasons, the judgment of the circuit court is affirmed.

The underlying facts are undisputed. In 1978, plaintiff was issued a license to practice as a chiropractor in Illinois. Shortly thereafter, he was also issued a license to practice in California, where he practiced as a chiropractor from May 1979 through late November 1982. On June 2, 1982, plaintiff applied for admission to the CETEC University School of Medicine, located in the Dominican Republic. Plaintiff’s application to CETEC was accepted on July 21, 1982, with an expected graduation date of June 1983. Plaintiff paid $20,000 to CETEC for tuition between June 1982 and December 1982. Without attending any medical school classes or doing any clinical work under the auspices of CETEC or any other medical school, plaintiff received a medical diploma from CETEC on January 31,1983.

Before receiving his CETEC diploma, plaintiff applied to take the ECFMG exam, a qualifying exam for graduates of foreign medical schools seeking licensure as a medical doctor in the United States, administered by the Educational Commission for Foreign Medical Graduates. A foreign student is qualified to take the exam after attending medical school for two years. On the ECFMG application, plaintiff falsely stated that he had attended CETEC from 1979 to 1983 and that he had graduated from college in 1977, rather than 1973.

In January 1983, plaintiff took the ECFMG exam and failed it. The following April, plaintiff reapplied for the exam. On the second application, plaintiff repeated the false statements regarding his education. Plaintiff sat for the ECFMG exam on February 29, 1984, but failed it again. In September 1984, plaintiff returned to California, bought back his chiropractor business and resumed that profession.

On January 21, 1986, the Department filed a complaint against plaintiff seeking revocation or suspension of his Illinois license as a chiropractor for violation of section 16(5) of the Act on the grounds that in June 1982, plaintiff agreed to pay CETEC approximately $20,000 and received a diploma from CETEC in January 1983 without having done anything other than pay money. Thereafter, on September 19, 1986, the Department filed an amended complaint which realleged the original allegations, plus referred to the misrepresentations plaintiff had made on his ECFMG exam applications in October 1982 and April 1983.

On November 17, 1986, an evidentiary hearing was. held before the Medical Disciplinary Board of the Department. On February 4, 1987, the Board issued its order, which set forth the following findings of fact:

(1) During June 1982, plaintiff agreed to pay CETEC $20,000 to obtain a Medical Doctor (M.D.) degree, from CE-TEC University, School of Medicine.

(2) Plaintiff received a Medical Doctor (M.D.) Degree from CETEC on January 31,1983.

(3) Plaintiff did nothing more than pay money to get the degree.

(4) Plaintiff applied to take the ECFMG exam in October 1982 and April 1983.

(5) The successful passage of the ECFMG exam is a necessary step in the process to become a licensed physician in Illinois.

(6) On both ECFMG applications, plaintiff falsely stated his years of attendance at CETEC.

(7) Plaintiff misrepresented himself to the ECFMG as a medical doctor.

(8) Pursuant to his applications, plaintiff was allowed to sit for the ECFMG exams on January 26, 1983, and February 29, 1984.

As a result, the Board made the following conclusions of law:

(1) The Board has jurisdiction; and

(2) Plaintiff violated section 16(5) of the Act.

The Director of the Department adopted the Board’s findings of fact and conclusions of law. Plaintiff appealed the Department’s order to the circuit court on administrative review. The circuit court affirmed. Plaintiff’s timely appeal to this court followed.

Plaintiff contends that the three-year statute of limitations set forth in section 16 of the Act deprived the Department of jurisdiction to review the propriety of plaintiff’s diploma from CETEC and his applications to take the ECFMG exam.

Section 16 of the Act states, in pertinent part:

“All proceedings to suspend, revoke, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to a license or certificate on any of the foregoing grounds *** must be commenced within 3 years next after the conviction or commission of any of the acts described therein, *** but the time during which the holder of the license or certificate was outside the State of Illinois shall not be included within the 3 years.” Ill. Rev. Stat. 1985, ch. 111, par. 4433(27).

Initially, in arguing this contention on appeal, plaintiff avoids any reference to that part of section 16 which refers to the period of time that the holder of the license was outside Illinois (the outside-Illinois exception). Instead, plaintiff focuses on the three-year period and claims that the agreement to “purchase” a medical degree referred to in the original complaint (filed January 21, 1986) and the applications to the ECFMG referred to in the amended complaint (filed September 19, 1986) occurred more than three years prior to the filing of the respective complaints. Thus, plaintiff argues, the Department lacked jurisdiction over the matter.

In response, the Department argues that (1) the latter part of section 16, which allows the period of time that the licensee spent outside of Illinois to be excluded from calculating the limitations period, applies to the present situation and the filing of both complaints was timely; and (2) in the alternative, pursuant to the relation-back doctrine, the amended complaint was timely.

Regarding the outside-Illinois exception to section 16, the facts support the Department’s argument. Plaintiff admits that from May 1979 through November 20, 1982, he resided and practiced as a chiropractor in California. Plaintiff resided in Illinois from November 21, 1982, through September 1, 1984, when he returned to California and resided and practiced there through November 17, 1986. Thus, throughout the period in question, plaintiff resided in Illinois for approximately 22 months.

In his reply brief, plaintiff does not dispute the applicability of the outside-Illinois exception to the present situation. However, in reliance on Skale v. Department of Public Aid (1987), 165 Ill. App. 3d 776, 520 N.E.2d 749, he claims that the Department is barred from raising the exception on appeal because it failed to raise the exception before the administrative agency. In Skale, the Department of Public Aid (DPA) terminated plaintiff doctor’s participation in the Medical Assistance Program and found that plaintiff owed the DPA $73,207.04. The penalty resulted from an audit made by the DPA of plaintiff’s charges for services rendered between July 1979 and December 1980. As the result of plaintiff’s failure to submit complete records, the DPA notified him of its intent to terminate him from its program and to recover the undocumented charges. Plaintiff requested a hearing. The hearing officer concluded that the documentation submitted was insufficient and recommended termination and recoupment. The Department adopted the hearing officer’s recommendations.

At trial on administrative review, plaintiff alleged that the DPA had violated its own regulations when it had requested records that were more than three years old and that approximately 60% of the missing records were for that period. The court found that plaintiff had waived his objections on those grounds by failing to raise them at the Department hearings. The appellate court affirmed, citing the general rule that defenses or issues not raised before an administrative agency may not be considered on review. “This rule prevents unfair surprise and it allows the administrative agency to have the opportunity to construe rules and statutes which most directly concern the agency’s operations.” 165 Ill. App. 3d at 780.

The rule enunciated in Skale regarding agency proceedings is similar to that regarding trial court proceedings wherein an appellant may not raise an issue or defense for the first time on appeal. (Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285.) However, plaintiff overlooks the fact that the Skale rule and the Shaw rule apply to appellants, not appellees. An appellee may raise any point in support of judgment on appeal even though not directly ruled on by the trial court, provided that the factual basis for such point was before the trial court. (Shaw v. Lorenz, 42 Ill. 2d 246, 246 N.E.2d 285.) Thus, because section 16 was before both the Department and the trial court and the periods of time during which plaintiff lived outside Illinois is undisputed and of record, the issue regarding the outside-Illinois exception is properly before this court.

Further, it is axiomatic that in construing a statute, courts examine the entire statute and give effect to each word, clause or sentence that allows for consistency and reasonableness. (Potts v. Department of Registration & Education (1986), 145 Ill. App. 3d 960, 496 N.E.2d 253.) In the present case, plaintiff argues that section 16 is clear and unambiguous on its face and should be so interpreted. Yet, in direct contradiction to that assertion, he asks this court to interpret the limitations portion of section 16 without giving full force and effect to the entire provision, i.e., the outside-Illinois exception. For the aforementioned reasons, we conclude that the Department timely filed its complaint and amended complaint and that the Department had jurisdiction. Our determination that the outside-Illinois exception applies to the facts at bar obviates the need to address the Department’s alternative argument regarding the relation back doctrine.

With respect to plaintiff’s contention that he was unduly prejudiced by the Department’s admission of evidence of actions that had occurred beyond the three-year limitations period of section 16, our determination that application of the outside-Illinois exception of section 16 of the Act brings all of plaintiff’s actions regarding the CE-TEC diploma and the ECFMG applications within the limitations period of section 16 renders this issue moot.

Next, plaintiff alleges that the findings of fact fail to establish that he had engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public in violation of section 16(5) of the Act. Because the revocation or suspension of a professional license involves serious consequences to both the licensee and the public, charges must be specific and the proof clear and convincing. (Smith v. Department of Registration & Education (1952), 412 Ill. 332, 106 N.E.2d 722.) Upon review, the findings of an administrative agency on questions of fact are held to be prima facie true and correct (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 110) and are not to be disturbed unless they are contrary to the manifest weight of the evidence. (United Air Lines, Inc. v. Illinois Fair Employment Practices Comm’n (1979), 69 Ill. App. 3d 519, 387 N.E.2d 875.) However, even if the Board’s findings of fact are correct, its determination as to the legal effect of those facts may be incorrect. (Gee v. Board of Review of the Department of Labor (1985), 136 Ill. App. 3d 889, 483 N.E.2d 1025.) For a judgment to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident. (United Air Lines, Inc. v. Illinois Fair Employment Practices Comm’n, 69 Ill. App. 3d 519, 387 N.E.2d 875.) Further, where a broad statutory standard such as section 16(5) has been delegated to an agency’s discretion, the reviewing court should rely on the agency’s interpretation as controlling whenever there is reasonable debate as to its meaning. Bruns v. Department of Registration & Education (1978), 59 Ill. App. 3d 872, 376 N.E.2d 82.

In the present case, plaintiff’s purchase of a medical degree from CETEC without attending classes and his misrepresentations on his ECFMG applications as to the dates on which he attended both college and CETEC were found to violate section 16(5) of the Act, which states:

“5. Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public.” (Ill. Rev. Stat. 1985, ch. 111, par. 4433(5).)

Plaintiff argues that in order to be found in violation of section 16(5), three distinct elements must be proven: (1) he engaged in dishonorable, unethical or unprofessional conduct; and (2) the conduct was likely to deceive, defraud or harm; (3) the public. Apparently plaintiff concedes that the first element was established, because he specifically contends that the Department failed to introduce any evidence with respect to the second and third elements. Plaintiff argues that the mere potential to misuse a diploma is not sufficient under section 16(5) for imposition of discipline. Rather, there must be a positive act, or a “showing of conduct” likely to deceive. Plaintiff offers no legal authority for this argument. Instead, he argues that because he never practiced as or held himself out to be a licensed physician or applied for a physician’s license, the mere fact he held a diploma was not likely to deceive the public.

In our view, plaintiff’s contention that the potential to deceive is not subject to discipline until that potential results in a positive act is contradictory to the clear, unambiguous language of section 16(5). The clear meaning of the section’s language “likely to” is that the mere potential to deceive, defraud or harm the public is sufficient to violate the Act. Thus, the public does not have to have been actually harmed. In the present situation, we concur with the Department’s position that the mere fact that plaintiff has the medical diploma allows him the opportunity to display the diploma in his office, thereby suggesting to the public that he has professional capabilities beyond that of a chiropractor. Thus, the unethical purchase of the diploma without having attended classes or having performed any clinical work has the likelihood of deceiving the public into believing that plaintiff has received his medical degree. Whether plaintiff actually displayed the diploma is irrelevant. No positive act of deceiving the public is required. We note that this high standard of honesty and integrity imposed on the medical profession is similar to that standard imposed on the legal profession by Canon 9 of the Code of Professional Responsibility (107 Ill. 2d Canon 9), which requires lawyers to avoid even the appearance of professional impropriety.

Finally, in his reply brief, plaintiff argues that Rule 290.35, effective June 7, 1983, which sets forth standards the Board is to consider in determining what constitutes conduct in violation of section 16(5) of the Act, cannot be applied retroactively to the situation at bar. In addressing this issue, plaintiff notes that this argument was not raised before the Department or before the trial court and, thus, is waived. We agree with plaintiff’s waiver argument and, accordingly, decline to address the issue on appeal. However, our decision to waive this issue does not alter our final determination, which is predicated on the clear, unequivocal language of section 16(5) of the Act.

For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    YVETTE LEDESMA, a Minor by her Mother and Next Friend, Juliette Ledesma, Plaintiff-Appellant, v. CANNONBALL, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—88—1722
    Opinion filed April 24, 1989.

      O’Callaghan & Associates, P.C., of Chicago (Joseph M. O’Callaghan and Cindy Van Ryn, of counsel), for appellant.
    Mark G. Slutsky & Associates, of Chicago (Mark G. Slutsky, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

The plaintiff, Yvette Ledesma, a minor, by her mother and next friend, Juliette Ledesma, filed suit against Alan Sherman and his employer, Cannonball, for personal injuries Yvette sustained in an accident with Sherman when he was driving a leased vehicle for Cannonball. During the course of the litigation, plaintiff settled with Sherman, and thereafter she filed a second amended complaint against Cannonball, alleging negligent operation of a motor vehicle by Cannonball under a theory of respondeat superior (count I), wilful and wanton operation of a motor vehicle by Cannonball under a theory of respondeat superior (count II), negligent entrustment of a motor vehicle to Sherman (count III), and wilful and wanton entrustment of a motor vehicle to Sherman (count IV). Defendant Cannonball moved to dismiss all four counts, and the trial court granted defendant’s motion with prejudice as to counts I, II, and III. Defendant then moved for summary judgment on count IV and the trial court granted that motion. The plaintiff moved to vacate the trial court’s dismissal of counts I through III, but the motion was denied. Plaintiff now appeals the dismissal of counts I through III, the grant of summary judgment as to count IV, and the denial of her motion to vacate the dismissal of counts I through III.

On August 7, 1979, the plaintiff was riding her bicycle with a group of cyclists east on Wellington Street in Chicago. While crossing Ashland Avenue, the plaintiff collided with a motor vehicle driven by Alan Sherman, a Cannonball employee who was, Cannonball admitted, acting within the scope of his employment at the time. It is disputed whether Sherman or Yvette had the right of way at the intersection.

The defendant Cannonball is a common carrier messenger and delivery service. Just prior to December 20, 1978, Sherman had applied for a position as a driver with Cannonball. Sherman filled out a job application with Cannonball prior to being hired by Cannonball. His job application established that he had a valid Illinois driver’s license and that he had insurance on his personal motor vehicle. In answer to a question on the application concerning whether his license had ever been suspended or revoked, Sherman responded that it had. Additionally, in response to another question concerning whether he had had any traffic violations in the past year, Sherman wrote “Yes *** License revoked for accident. Traffic ticket for speeding.” After completing the application, Sherman was interviewed by Cannonball’s personnel assistant, Patricia Vecchio. Ms. Vecchio, in her deposition, stated that Sherman’s prior license revocation was not a determinative factor in the decision to hire Sherman, and went on to explain that the decision to hire a driver/messenger was based upon various other factors, such as his or her knowledge of the Chicago area, communication skills, physical appearance, and driving record. There was, she said, no policy in effect at that time to investigate a potential employee’s prior driving record beyond the information in the application when the applicant had a valid driver’s license.

On or about December 20, 1978, Cannonball hired Sherman. Thereafter, Sherman used his personal vehicle while working for Cannonball, and Cannonball leased it from him and allowed him to operate the vehicle under its authority.

As stated above, the accident between plaintiff and Sherman took place on August 7, 1979, while Sherman was driving for Cannonball. On March 19, 1982, plaintiff sued Cannonball for personal injuries sustained in the accident, and on January 20, 1983, amended her complaint to include Sherman as a defendant. During the course of the litigation, there were numerous dismissals and amendments to various counts of plaintiff’s original complaint, which are not pertinent to this appeal. On December 15, 1986, plaintiff executed a “release” of Sherman and accepted $25,000, which was the limit of Sherman’s insurance policy, in settlement of her claim against Sherman. The “release” was a form document, but there was additional language typed into the form which stated: “This release does not effect [sic] Yvette Ledesma’s cause of action against Cannonball, Inc. or any other party.” Based upon the settlement and release, the trial court dismissed Yvette’s claims against Sherman with prejudice.

After this dismissal of plaintiff’s claims, there were further attempted amendments and subsequent dismissals of various counts of plaintiff’s complaint, and, eventually, on June 24, 1987, plaintiff filed a completely new amended complaint against Cannonball. This amended complaint, as stated earlier, set forth four counts against Cannonball: negligent operation of a motor vehicle based on respondeat superior (count I); wilful and wanton operation of a motor vehicle based on respondeat superior (count II); negligent entrustment of a motor vehicle of Sherman (count III); and wilful and wanton entrustment of a motor vehicle to Sherman (count IV).

Thereafter, on November 6, 1987, the trial court, on defendant’s motion, dismissed counts I through III of this complaint with prejudice. Defendant then moved for summary judgment on the only remaining count, count IV, for wilful and wanton entrustment of a motor vehicle. On January 21, 1988, the trial court granted defendant’s motion on count IV. Subsequently, plaintiff moved the court to vacate its prior order of dismissal dated November 6, 1987, concerning counts I through III. The plaintiff’s motion to vacate relied in part upon plaintiff’s release of Sherman which contained the reservation of rights against Cannonball, and she therefore contended that she had not released Cannonball. On April 27, 1988, the trial court denied plaintiff’s motion to vacate its dismissal order of November 6, 1987, and, in its order, stated that its denial of plaintiff’s motion to vacate was based upon the court’s belief that the plaintiff’s release of the employee, Sherman, served to release plaintiff’s respondeat superior claims against the employer, Cannonball.

Plaintiff raises three issues on appeal: (1) whether the trial court erred when it dismissed counts I and II of plaintiff’s complaint for negligent and wilful and wanton operation of a motor vehicle based on respondeat superior, as well as its denial of her motion to vacate the dismissal of those counts; (2) whether the trial court erred when it dismissed count III of plaintiff’s complaint for negligent entrustment, as well as its denial of her motion to vacate the dismissal on that count; and (3) whether the trial court erred when it granted defendant’s motion for summary judgment on count IV of plaintiff’s complaint for wilful and wanton entrustment.

The plaintiff’s first assertion of error is that the trial court’s dismissal of counts I and II of her complaint, for negligent and wilful and wanton operation of a motor vehicle under respondeat superior, as well as the trial court’s denial of her motion to vacate the dismissal, were erroneous. The plaintiff initially argues that the trial court erred when it determined that her “release” of Sherman also released Cannonball. She contends that it was the intent of the parties that the document entitled “release” was, in fact, a covenant not to sue Sherman, relying upon the express reservation of her right to sue Cannonball in the agreement, as well as the correspondence between the parties, which evidenced, she asserts, the intent of the parties to reserve her right to sue Cannonball. Moreover, she argues, counts I and II stated valid causes of action for negligence and wilful and wanton conduct under a theory of respondeat superior, and she claims that there was no improper commingling of claims within the counts.

The defendant, on the other hand, argues that the “release” of Sherman was, in fact, a release and not a covenant not to sue since it was entitled “release” and the release stated that it was a full and final settlement of plaintiff’s claim. Inasmuch as plaintiff’s claims in counts I and II are wholly vicarious claims based on respondeat superior, the defendant contends that plaintiff’s full release of her cause of action against Sherman necessarily releases her cause of action against Cannonball as well. Also, the defendant states that because this agreement with Sherman was a release, the express reservation had no effect in preserving any derivative liability there may have been against Cannonball. Thus, the defendant argues that the trial court properly dismissed counts I and II, and in any event, certain correspondence between the parties indicated that plaintiff only intended to reserve the entrustment counts. Defendant also asserts that plaintiff improperly commingled two claims in count I, namely, the negligent operation of a motor vehicle under respondeat superior claim and an assigned claim from her mother for medical expenses. Finally, defendant contends that plaintiff’s factual allegations were insufficient to support claims for negligent and wilful and wanton operation of a motor vehicle under a respondeat superior theory, and, therefore, the trial court properly dismissed those counts as well.

Whether an agreement is a release which releases the entire cause of action, or is merely a covenant not to sue which only affects the right to bring suit against a party, depends upon the intent of the parties to the agreement, and this intent is the controlling factor in the determination. (See Brown v. Timpte, Inc. (1985), 137 Ill. App. 3d 1053, 1057, 485 N.E.2d 488, 490-91.) The intent of the parties may be ascertained by examination of certain factors, including the words of the agreement, the substance of the agreement, and the amount paid. (Brown, 137 Ill. App. 3d at 1057, 485 N.E.2d at 490.) Another factor which may be helpful in ascertaining the intent of the parties is the label of the document. See Mitchell v. Weiger (1977), 56 Ill. App. 3d 236, 371 N.E.2d 888.

Here, the document entitled “release” was a form document, and part of the form included language that the “release” of Sherman was a “full and final satisfaction” of plaintiff’s claim. Although these indications would appear to imply that the form document was a release, we find that the typed-in, express reservation of plaintiff’s rights against Cannonball in the document is dispositive that the intent of the parties here was that this agreement was to be a covenant not to sue. The typed-in reservation of the plaintiff’s right to sue Cannonball without limitation is a clear and unambiguous expression of the intent of the parties to preserve any claim against Cannonball. Because the terms of the reservation are clear and unambiguous, we need not look outside the four comers of the document, and, thus, we conclude that the agreement here was a covenant not to sue Sherman.

Under Illinois law, a covenant not to sue an employee will not act as a bar to an action against the employer under a theory of respondeat superior when the covenant not to sue contains an express reservation of the covenantor’s right to proceed against the employer. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d 259; Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 192-93, 488 N.E.2d 332, 334.) Recently, our supreme court, in Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 30, 499 N.E.2d 450, 453, examined this rule that a covenant not to sue an employee will not bar a respondeat superior action against an employer, where the covenant contains an express reservation. The court noted that this rule was consistent with another “long-established rule that the agreement is the controlling factor and the governing fact to be determined is the intent of the parties.” (Stewart, 114 Ill. 2d at 30, 499 N.E.2d at 453.) The Stewart court went on to find that the express reservation of plaintiff’s right to sue “any other person or persons” in the covenant not to sue presented there “explicitly and unambiguously” demonstrated that the parties there intended the reserved right to be all-inclusive even though the employer was not specifically named. Stewart, 114 Ill. 2d at 30, 499 N.E.2d at 453.

Hence, based upon the case law, it is clear that the covenant not to sue here, which expressly reserved plaintiff’s right to sue Cannonball, did not extinguish Cannonball’s potential liability under a theory of respondeat superior. The language of the covenant is controlling, and here it is unambiguous in its terms. Moreover, the clear language of the reservation is all-inclusive as to the types of claims reserved. There is also no basis for the defendant’s alternative contention that plaintiff only reserved the entrustment claims, because the language of the reservation is without any limitation as to the nature of the reserved rights. Therefore, the defendant’s arguments to the contrary are unpersuasive, particularly in light of the Edgar County and Stewart decisions, which the defendant claimed, at oral argument, did not apply to this case because those cases dealt with covenants not to sue, and not releases. (See Edgar County, 57 Ill. 2d 298, 312 N.E.2d 259; Stewart, 114 Ill. 2d 23, 499 N.E.2d 450.) We disagree with the defendant’s arguments and find those cases to be directly applicable since, as stated above, we find that the agreement here was a covenant not to sue. Thus, plaintiff’s claims against Cannonball were not barred.

Even though the covenant not to sue does not bar plaintiff’s respondeat superior claims, the next issue that we must consider is whether the respondeat superior claims were factually sufficient to withstand a motion to dismiss for failure to state a cause of action. A negligence cause of action based on respondeat superior must allege sufficient facts to establish that the employee owed a duty to plaintiff, that he breached that duty, that the breach proximately caused plaintiff’s damages, and that the employee was acting within the scope of his employment during the time the alleged negligence occurred. (See Bates v. Doria (1986), 150 Ill. App. 3d 1025, 502 N.E.2d 454.) A wilful and wanton cause of action based on a respondeat superior theory is similar to a negligence action, except that the level of the defendant’s conduct is more than mere negligence, but less than intentional conduct. The allegations of a wilful and wanton claim must set forth facts to establish that the employee, within the scope of his employment, acted with wilful and wanton disregard or conscious indifference towards the plaintiff. (See O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015; W. Keeton, Prosser & Keeton on Torts §70 (5th ed. 1984); see generally Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 422 N.E.2d 925.) Such a claim may also give rise to punitive damages. (See Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509; Bates, 150 Ill. App. 3d 1025, 502 N.E.2d 454.) We additionally note that although separate causes of action should be set forth in separate counts to avoid confusion, this error is not necessarily fatal to an entire cause of action. See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613.

Plaintiff’s complaint here states sufficient facts to support a negligence claim based on respondeat superior because the facts alleged in count I claim that Sherman, a Cannonball employee acting within the scope of his employment, committed certain negligent acts or omissions, including the failure to stop for a red light and the failure to obey the speed limit. Count I also alleged that these acts were the proximate cause of plaintiff’s damages. Although plaintiff, in the same count, also claimed damages for her medical expenses, a claim her mother assigned to her, we do not find the inclusion of this additional claim fatal to her negligence claim. Count I, therefore, should not have been dismissed.

Count II, in substance, alleged the same facts as count I, but added the key phraseology to the effect that these same acts were committed with “utter indifference and conscious disregard” for plaintiff’s safety. Our supreme court has held that the addition of these terms to the recitation of previously alleged negligent acts are proper and sufficient allegations of wilful and wanton conduct. (O’Brien, 83 Ill. 2d 462, 415 N.E.2d 1015.) As the supreme court said in O’Brien, when the allegations are insufficient to determine if the defendant acted with reckless disregard, the facts themselves must be closely scrutinized to determine whether the acts were merely negligent or whether they were performed with conscious disregard for the plaintiff’s safety. (O’Brien, 83 Ill. 2d at 469, 415 N.E.2d at 1018.) Thus, the court stated that a plaintiff should, at the very least, be allowed the opportunity to present evidence in support of his allegations of wilful and wanton misconduct. (O’Brien, 83 Ill. 2d at 469, 415 N.E.2d at 1018.) Similarly here, the plaintiff should be allowed to present evidence in support of her allegations on the determination of whether the alleged acts were performed negligently or with conscious disregard for her safety. Count II, therefore, was both legally and factually sufficient and should not have been dismissed.

The second issue raised by the plaintiff is whether the trial court properly dismissed her negligent entrustment claim. Plaintiff argues that despite Cannonball’s admission that Sherman was acting within the scope of his employment, Cannonball has not admitted responsibility for the accident and, thus, the claim was proper. The defendant, however, contends, in the nature of an affirmative matter type of argument (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)), that because it admitted that Sherman was acting within the scope of his employment, the negligent entrustment count cannot stand.

The case of Neff v. Davenport Packing Co. (1971), 131 Ill. App. 2d 791, 268 N.E.2d 574, cited by both parties, is applicable and persuasive here. There, the plaintiff was in an accident with an employee driving a vehicle for his employer. Plaintiff sued the driver’s employer alleging both negligence under a respondeat superior theory, as well as negligent entrustment. (Neff, 131 Ill. App. 2d 791, 268 N.E.2d 574.) The Neff court, in ruling on a motion to dismiss the negligent entrustment count, dismissed the negligent entrustment count because the employer had admitted that the employee was acting within the scope of his employment and that it would be liable for those acts under the doctrine of respondeat superior. The Neff court reasoned that, in light of the employer’s admission, the negligent entrustment count could not stand even as an alternative theory of liability because, if it allowed the count to stand, the plaintiff could introduce potentially inflammatory proof of collateral misconduct, such as other auto accidents and arrests for violations of motor vehicle laws, which would only serve to obscure the basic issue of driver-employee negligence in the negligence count and, thus, bring in otherwise irrelevant matters. Neff, 131 Ill. App. 2d at 792, 268 N.E.2d at 575; see also Lockett v. Bi-State Transit Authority (1983), 94 Ill. 2d 66, 72-73, 445 N.E.2d 310, 313-14; Pelczynski v. J.W. Peters & Sons, Inc. (1989), 178 Ill. App. 3d 882, 533 N.E.2d 1137.

Here, just as in Neff, the employer, Cannonball, admitted that Sherman, the driver-employee, was acting within the scope of his employment, and, therefore, admitted that if Sherman were found to be negligent under the negligence count, then it would be liable under the respondeat superior doctrine. Thus, here, as in Neff, there was no reason to admit irrelevant, potentially inflammatory evidence of Sherman’s past driving record which would obscure the basic issue of Sherman’s negligence. Accordingly, because we have found that the negligence count under respondeat superior was improperly dismissed, the negligent entrustment count here must fall. The trial court’s dismissal of the negligent entrustment count was, therefore, proper.

The third issue raised by plaintiff on review is whether the trial court properly entered summary judgment for Cannonball on the wilful and wanton entrustment count of her complaint. She contends that the trial court erred when it granted summary judgment for defendant because there was a genuine issue of material fact as to whether Sherman was a fit employee and whether Cannonball was reckless in employing him. Cannonball, however, contends that plaintiff failed to produce any evidence in support of her allegations which would show that Cannonball ratified or approved Sherman’s conduct in relation to the accident, that Sherman was not fit to drive for Cannonball, or that Cannonball was reckless in its entrustment of the vehicle to Sherman.

Entry of summary judgment is proper where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 533 N.E.2d 75.) In a claim for wilful and wanton entrustment, one must again show that the defendant engaged in a course of action which showed an actual or deliberate intent to harm, or an utter indifference or conscious disregard for the safety of others, namely, the plaintiff. Richards v. Checker Taxi Co. (1988), 168 Ill. App. 3d 154,156, 522 N.E.2d 650, 651-52.

In Richards, this court was presented with a factually similar situation. There, plaintiff was injured while a passenger in a Checker taxi. Plaintiff sued Checker for negligently entrusting the leased taxicab to its driver-employee. The basis of the appeal was whether Checker’s failure to review the driving record of its employee-driver was a sufficient basis to support a jury verdict against Checker on the wilful and wanton entrustment count. The court found that Checker’s failure to review the driving record of its employee-driver did not amount to wilful and wanton conduct. (Richards, 168 Ill. App. 3d 154, 522 N.E.2d 650.) The court determined that there was no authority to require Checker to obtain a copy of the driver’s record before entrusting the vehicle to him, and noted that the only requirements, taking into account certain statutory obligations, were that the driver, because he was a taxi driver, have a valid chauffeur’s license and, because the vehicle was leased to the driver, that he have a valid driver’s license. (See Richards, 168 Ill. App. 3d at 157, 522 N.E.2d at 652; see also Ill. Rev. Stat. 1987, ch. 95½, par. 6— 305(a).) The evidence in Richards showed that the driver met those requirements, and that, consequently, there was no evidence of wilful and wanton entrustment. (Richards, 168 Ill. App. 3d 154, 522 N.E.2d 650.) The court further noted that the evidence showed that, in the two years that the driver worked there prior to the accident, he had never had any major traffic violations.

Similarly, the plaintiff here presents no authority which would suggest that Cannonball was required to investigate Sherman’s past driving record. Like the evidence presented in Richards, the evidence here showed that Cannonball checked to make sure that Sherman had a valid Illinois driver’s license and that he was insured before hiring him and entrusting him with the vehicle. Moreover, we note that, similar to the evidence in Richards, the evidence here showed that while Sherman was in Cannonball’s employ, he had no major traffic violations. (See Richards, 168 Ill. App. 3d 154, 522 N.E.2d 650.) Hence, because there was no dispute of material fact, the trial court’s entry of summary judgment in favor of Cannonball was proper here since Cannonball was, as a matter of law, entitled to judgment.

We are unpersuaded by plaintiff’s argument that Richards is distinguishable on the basis that there Checker did not know that the employee’s driver’s license had been previously revoked, as Cannonball did here, because the Richards court specifically found that prior driving problems are irrelevant as long as the employee has a valid license. (See Richards, 168 Ill. App. 3d 154, 522 N.E.2d 650.) Moreover, there is no evidence here, contrary to plaintiff’s claims, that Cannonball ratified or approved of Sherman’s allegedly improper conduct in relation to the accident.

For all the foregoing reasons, the judgment of the trial court dismissing the respondeat superior counts, counts I and II, based on negligence and wilful and wanton conduct is hereby reversed, and those two counts are therefore remanded to the trial court for further proceedings; the judgment of the trial court dismissing the negligent entrustment count, count III, is affirmed; and the trial court’s entry of summary judgment for Cannonball on the wilful and wanton entrustment count, count IV, is affirmed.

Reversed and remanded in part; affirmed in part.

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

       Justice Quinlan participated in this case prior to his assignment to the sixth division.

      Defendant’s motion was not labelled as either a motion to dismiss for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), or as a motion to dismiss based on an affirmative matter (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Neither the motion nor the response mentioned the “release.” Additionally, there are no transcripts of the trial court proceedings below concerning any of the motions. However, it appears from the substance of the motion that it was based upon failure to state a cause of action. Consequently, we will treat the motion as a motion to dismiss under section 2 — 615.

      We note here that the issue on appeal concerning the wilful and wanton entrustment count is based on the trial court’s grant of summary judgment and is not, as was the situation concerning the negligent entrustment count, based on a motion to dismiss. Thus, although our analysis of the negligent entrustment count may also be applicable to the issue of whether the wilful and wanton entrustment count stated a cause of action for purposes of a motion to dismiss, that specific issue has not been raised on appeal, and our analysis is premised upon the fact that a proper cause of action was pled.


author: PRESIDING JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY FREEMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—2023
    Opinion filed April 25, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Johnny Freeman, was convicted by a jury of criminal sexual assault, aggravated criminal sexual assault, aggravated kidnapping and murder of a five-year-old girl. He was sentenced to life imprisonment without parole for murder, a consecutive sentence of 60 years in prison for aggravated criminal sexual assault, and a consecutive sentence of 15 years in prison for aggravated kidnapping. The conviction for criminal sexual assault merged into the conviction for aggravated criminal sexual assault.

Since defendant has not raised any issue on appeal relative to the sufficiency of the evidence, a detailed recital of facts is not necessary.

The evidence supporting the conviction established that defendant took the victim, a five-year-old female, from the fifth floor to a fourteenth-floor apartment of the Henry Horner Homes in Chicago. After committing criminal sexual assault on the victim, he shoved the victim out of a window. When the victim grabbed the edge of the window and screamed for her mother, defendant shoved her a second time. The victim fell to the ground 14 floors below. She was pronounced dead at Cook County Hospital.

Testimony of an eye witness, coupled with defendant’s confession, is part of the overwhelming evidence of defendant’s guilt.

Defendant appeals his conviction and sentence.

I

Defendant contends that certain comments made by the trial judge during voir dire examination of the jury constitute reversible error and require a new trial.

Prior to voir dire, the court told the venire of their responsibility in determining guilt or innocence and that a finding of guilt depended on the State meeting its burden. During voir dire, two prospective jurors stated that they could not put aside their prejudices based on the charges. The court told the two jurors specifically and the jurors as a whole:

“We are not here to determine the caliber of the crime that I mentioned. We are here to determine whether or not the State can prove beyond a reasonable doubt that this defendant committed the crime.
Because one crime has been committed we do not want to perpetuate it by committing a second and convicting the wrong person. That is the reason we are having a trial.
So again, we are not here to determine whether or not a crime has been committed, but whether or not the State can prove beyond a reasonable doubt that this defendant committed that crime. Again, as I pointed out, we don’t want to make two mistakes.”

Objections from both the defendant and the State were overruled.

After the jury had been selected and immediately prior to opening statements of counsel, the court told the jury that any remarks he “made or will be making” during the proceedings “are not to be considered by you in the course of what your deliberations are or what your verdicts ought to be” and reminded them of the State’s burden and their responsibility as jurors.

After all of the evidence was presented and counsel made their closing arguments, the court instructed the jury regarding the law to be applied. The instructions included Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981), which states, inter alia: “Neither by these instructions nor by any ruling or remark which I have made do I mean to indicate any opinion as to the facts or as to what your verdict should be.” The jury was also properly instructed on the elements of each offense and their duty to find that each element of each offense was proved beyond a reasonable doubt.

In order for the comments by a judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he was harmed by them. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 937, 449 N.E.2d 568.) A reviewing court does not need to determine whether the record in a criminal case is perfect, but has to ensure that the defendant had a trial free from substantial and prejudicial errors. People v. Conrad (1967), 81 Ill. App. 2d 34, 54, 225 N.E.2d 713, aff’d(1968), 41 Ill. 2d 13, 241 N.E.2d 423.

The instant case involved overwhelming evidence of guilt. We fail to see any possibility that the court’s comments constituted a material factor in defendant’s conviction. The jury was admonished twice to disregard such comments and was properly instructed as to the law. Therefore, upon thorough review of the record, we find that defendant has received a fair trial and any comments made did not rise to the level of prejudicial error.

II

Defendant next argues that the life in prison statute does not allow a life sentence without parole for defendants who were 17 years old or younger at the time of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1.) Thus, defendant requests that this cause be remanded for new sentencing.

Where the legislature has decided to limit the imposition of a particular sentence to offenders above a certain age it has done so by express language. (See, e.g., Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(b), 1005 — 5.2(b).) The lack of language limiting the imposition of a natural life sentence to offenders of a certain age indicates that the provision is generally applicable to defendants of any age who are convicted of murder. People v. Cooney (1985), 136 Ill. App. 3d 989, 1010-11, 484 N.E.2d 802, cert. denied (1986), 476 U.S. 1159, 90 L. Ed. 2d 720, 106 S. Ct. 2278.

The third district has examined the life imprisonment statute twice and concluded that it applies to defendants of any age. In People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384, the court held that life imprisonment was appropriate where a 15-year-old defendant was convicted of a brutal and heinous murder that was committed in the course of another felony and that felony, like here, was rape of a girl under the age of 13. In People v. Walker (1985), 136 Ill. App. 3d 177, 483 N.E.2d 301, the court found that a life sentence was appropriate for a defendant who was 17 when he committed murder. We find these cases dispositive. Therefore, we will not disturb the defendant’s sentence of life imprisonment.

Ill

Defendant next argues that the trial court’s sentence of life in prison plus two consecutive terms totalling 75 years Violated section 5 — 8—4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4.) Defendant asks that the terms be made concurrent.

Defendant argues that the consecutive terms here are not required to protect the public since defendant was given a life sentence without the possibility of parole. He also contends that the legislature never intended natural life imprisonment to figure into consecutive sentencing.

This issue has been addressed twice, before other appellate courts. In People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, appeal denied (1988), 121 Ill. 2d 577, cert. denied (1988), _ U.S. _, 102 L. Ed. 2d 226, 109 S. Ct. 236, and People v. Epps (1986), 143 Ill. App. 3d 636, 493 N.E.2d 378, the courts held that life imprisonment, coupled with consecutive sentences, was envisioned under the legislature’s sentencing structure. In rejecting the argument that no useful purpose would be served for the public’s protection, they found that consecutive sentencing may well be beneficial under these circumstances should defendant’s life sentence be subsequently modified, commuted or reduced. Hines, 165 Ill. App. 3d at 307; Epps, 143 Ill. App. 3d at 643.

We agree with the holding of the courts in Epps and Hines that consecutive sentences are appropriate in such cases. Therefore, we affirm the consecutive sentences.

IV

Defendant next contends that his extended-term sentence of 60 years for aggravated criminal sexual assault was not authorized because aggravated criminal sexual assault was not in the class of the most serious offense of which defendant was convicted. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-2.

Our supreme court recently decided this issue in People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497. There, the court held that the statute allows the imposition of an extended-term sentence for the class of the most serious offense of which the defendant was convicted other than murder, even though defendant was separately sentenced to natural life imprisonment on the murder conviction. (124 Ill. 2d at 166). Therefore, we find that the trial court did not commit any error.

V

Defendant next contends that his sentence was based on the trial court’s outrage over the nature of the crimes. Defendant contends that the mitigating evidence presented at the sentencing hearing should have reduced his penalty.

A fair consideration of this issue shows that the trial court did not abuse its discretion. The victim’s death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty. The court heard testimony on the severity of the crime, the victim’s age, and the defendant’s age and potential for rehabilitation. The trial court’s comments during sentencing indicate that it considered the aggravating and mitigating circumstances.

Therefore, we will not disturb the judgment of the trial court.

VI

Finally, defendant argues that the jury instructions on aggravated criminal sexual assault and aggravated kidnapping (1) broadened the charges in the indictment and (2) were incomplete and inconsistent, which violated his rights to a grand jury, due process and a fair jury.

Failure to raise an issue both by objection and by inclusion in a motion for new trial results in waiver of that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522. N.E.2d 1124, cert. denied (1988),_U.S__, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Justice does not require the application of the plain error doctrine where the evidence of defendant’s guilt is overwhelming. Enoch, 122 Ill. 2d at 198-99.

In the instant case, defendant failed to raise this specific issue either by an objection or inclusion in his motion for a new trial. Nor did defendant submit substitute instructions. Additionally, there was no objection to the forms of verdict used, nor was there any form submitted by defendant. Therefore, the issue has not been preserved for review.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.