author: JUSTICE STOUDER JUSTICE BARRY

text:
    STEPHEN HERRIFORD et al., Plaintiffs-Appellees, v. LOUIS BOYLES et al., Defendants-Appellants (Pekin Insurance Company, Intervenor-Appellant).
    Third District
    Nos. 3—88—0811, 3—88—0833 cons.
    Opinion filed February 6,1990.

      BARRY, J., concurring in part and dissenting in part.
    Heyl, Royster, Voelker & Allen, of Peoria (John C. Mulgrew, Jr., and John P. Fleming, of counsel), for appellants Louis Boyles and Peoria Charter Coach Company.
    Brian P. Mack and John P. Fleming, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellant Pekin Insurance Company.
    William K. Brown, of Peoria, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Stephen Herriford and Clifford Herriford, filed suit against the defendants, Louis Boyles and the Peoria Charter Coach Company, to recover damages for injuries they sustained in a collision on December 30, 1983. The defendants’ insurer, Transit Casualty Insurance Company, became insolvent. As a result, the Illinois Insurance Guaranty Fund (the Fund) (Ill. Rev. Stat. 1987, ch. 73, par. 1065.82 et seq.) assumed Transit’s obligation to defend against the plaintiffs’ claims.

During the pendency of this action, the plaintiffs pursued damage claims under the uninsured motorist provisions of Stephen Herriford’s insurance policy. The policy was issued by the intervenor-appellant, the Pekin Insurance Company (Pekin). In accordance with the terms of that policy, the plaintiffs made a demand to submit their uninsured motorist claims to arbitration. Following a hearing, the arbitration panel awarded damages in the amount of $9,000 to Stephen Herriford and $5,000 to Clifford Herriford. The plaintiffs did not seek review of the arbitration decision.

Subsequently, the defendants filed a motion to dismiss the plaintiffs’ personal injury suit, asserting that the arbitration decision barred further litigation under the doctrines of collateral estoppel and/or res judicata. The trial court denied the defendants’ motion to dismiss, finding inter alia, that the doctrines of res judicata and collateral estoppel did not apply in the instant case. This court thereafter granted the defendants leave to appeal pursuant to Rule 308 (107 Ill. 2d R. 308) to answer the following questions certified by the trial court:

“A. Does Ill. Rev. Stat. (1981) ch. 73, par. 755a require that an insured submit uninsured motorist claims to arbitration or does the statute merely require that insurance contracts afford the insured the option of arbitration?”

And

“B. Do principles of res judicata and/or collateral estoppel under the circumstances of this case preclude plaintiffs from litigating claims which have heretofore been arbitrated to conclusion under the uninsured motorist coverage of plaintiffs’ automobile policy?”

Meanwhile, the Pekin Insurance Company filed a petition to intervene in the plaintiffs’ cause of action accompanied by a complaint. The complaint alleged that Pekin had a contractual right to claim a lien on any judgment that the plaintiffs received, in order to recover the $14,000 it had paid to the plaintiffs as a result of the arbitration award. The trial court granted the plaintiffs’ motion to dismiss Pekin’s complaint and entered a finding that there was no just cause to delay enforcement or appeal from that order. (107 Ill. 2d R. 304(a).) The appeal by Pekin was subsequently consolidated with the plaintiffs’ appeal and will be addressed below.

In considering the two questions certified by the trial court, we must first look to the operative statutory provisions. The Illinois Insurance Guaranty Fund was established “to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment, to avoid financial loss to claimants or policyholders because of the entry of an Order of Liquidation against an insolvent company, and to provide a Fund to assess the cost of such protection among member companies.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.82.) Under the statute, the Fund is deemed to be the insolvent company to the extent of its obligation for covered claims and the Fund retains all rights, duties and obligations of the insolvent company, subject to the limitations set forth in the statutes governing the Fund. (Ill. Rev. Stat. 1987, ch. 73, par. 1065.87 — 4.) Section 546(a) of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1987, ch. 73, par. 1065.96(a)) provides: “Any insured or claimant having a covered claim against the Fund shall be required first to exhaust his rights under any provision in any other insurance policy which may be applicable to the claim. Any amount payable on a covered claim under this Article shall be reduced by the amount of such recovery under such insurance policy.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.96(a).) Section 143a(l) of the Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a(l)) sets forth certain requirements for uninsured motor vehicle coverage. The statute states in pertinent part that “[n]o such policy shall be renewed or delivered or issued for delivery in this State after July 1, 1978 unless it is provided therein that any dispute with respect to such coverage shall be submitted for arbitration to the American Arbitration Association or for determination in the following manner: Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the two arbitrators so named shall select a third arbitrator. If such arbitrators are not selected within 45 days from such request, either party may request that such arbitration be submitted to the American Arbitration Association.” Ill. Rev. Stat. 1987, ch. 73, par. 755a(l).

On appeal, the defendants argue that section 143a(l) does not mandate that all disputed uninsured motorist claims be resolved through arbitration. The defendants contend that the statute requires only that insurance policies contain provisions for the submission of disputes to either the American Arbitration Association or to a three-member panel selected according to the procedures set forth in section 143a(l). The defendants argue that, if the policy contains only the second alternative, then under the statute only the insured can request that a dispute be settled by arbitration. In that case, whether a claim is settled by arbitration is left to the discretion of the insured and is therefore not mandatory. We note that the policy in the instant case allows for the selection of the arbitration panel in a manner similar to the procedures set forth in section 143a(l). Unlike the statutory procedures, however, under the plaintiffs’ policy both parties have the right to demand arbitration. The policy does not contain provision for arbitration before the American Arbitration Association.

The plaintiffs appear to agree with the defendants that section 143a(l) is mandatory to the extent that one of the two alternative means for selecting the arbitrator must be contained in the policy. The plaintiffs also concede that the mandatory arbitration of their dispute with their insurance company over their uninsured motorist claims does not abridge their constitutional right to trial by jury because, as parties to a contract, they are free to waive constitutional rights through agreement. (See Irmco Hotels Corp. v. Solomon (1975), 27 Ill. App. 3d 225, 326 N.E.2d 542.) However, the plaintiffs argue that if the doctrines of collateral estoppel and res judicata apply to bar further proceedings against the defendants and the Fund, sections 143a(l) and 546(a) would operate to deny the plaintiffs their constitutional right to have a jury decide the claims in their personal injury suit. The plaintiffs contend that section 546(a) was not meant to be a limitation on recovery. They argue that the statutes must be interpreted to allow them to first bring an action under the uninsured motorist provisions of their own policy and then to proceed in a jury trial against the defendants and the Fund.

In construing a statute, we must ascertain and give effect to the legislative intent best evidenced by the ordinary meaning of the statutory language. (In re Estate of Norton (1986), 149 Ill. App. 3d 404, 500 N.E.2d 1022.) In reviewing the statutory language, we find that Section 143a(l) clearly requires mandatory arbitration of all disputed uninsured motorist claims. The statute states that “any dispute with respect to such coverage shall be submitted for arbitration.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 755a(l).) Notwithstanding the statutory provisions, the policy in the instant case stated that either party could demand arbitration. The plaintiffs do not challenge the mandatory arbitration of their dispute with the Pekin Insurance Company. We therefore find that under both the statute and the insurance policy in this case the arbitration process was compulsory and resulted in valid awards to the plaintiffs.

Based on our reading of section 546(a) and Lucas v. Illinois Insurance Guaranty Fund (1977), 52 Ill. App. 3d 237, 367 N.E.2d 469, we find no merit to the plaintiffs’ constitutional argument. We find nothing in the statute which would have prevented the plaintiffs from pursuing an action to judgment against the defendants prior to asserting their claims under their uninsured motorist coverage. Section 546(a) states that “[a]ny insured or claimant having a covered claim against the Fund shall be required first to exhaust his rights under any provision in any other insurance policy which may be applicable to the claim.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.96(a).) The statute only requires that claimants exhaust their rights under any other applicable insurance policy before proceeding against the Fund. Section 546(a) is only relevant in determining the recovery from the Fund.

In Lucas, the plaintiffs brought actions for injuries suffered in separate collisions involving the same taxicab company. They recovered substantial judgments against the cab company despite the fact that the company’s insurer was adjudicated insolvent prior to the trials. Thereafter, the plaintiffs both recovered $10,000 under their uninsured motorist coverage. On appeal, the court held that the trial court was correct in holding that the plaintiffs’ recovery from the Fund was limited to the Fund’s obligation less the amount of the plaintiffs’ recovery under their uninsured motorist coverage.

In Lucas, the plaintiffs proceeded to trial and recovered judgments against the defendant before they asserted their uninsured motorist claims. In the instant case, the plaintiffs could have continued their action against the defendants and received a judgment in the trial court, as did the plaintiffs in Lucas, before they asserted their uninsured motorist claims. The statute does not mandate that the plaintiffs had to assert claims against their uninsured motorist coverage before pursuing their action to judgment against the defendants. Therefore, sections 143a(l) and 546(a) do not operate to deny the plaintiffs’ their constitutional right to a jury determination of their damages.

In addition, in Spearman v. State Security Insurance Co. (1978), 57 Ill. App. 3d 393, 372 N.E.2d 1008, which cites Lucas, the issue was whether the insured could compel her insurer to arbitrate her uninsured motorist claim prior to her proceeding against the assets of the Fund. We note the Fund was not a party in Spearman nor did it represent a party to the litigation in that case. The case did not address the issue of an action against the individual tortfeasor. The language in Spearman is ambiguous when the court says “claim against the Fund.” (57 Ill. App. 3d at 394.) All that claim represents, however, is the ultimate amount the Fund must pay to the extent that it stands in the position of indemnifier. On the other hand, the amount the injured party is entitled to receive for his or her injury is determined as a collateral matter or in other proceedings. The statute does not contemplate a direct action against the Fund to determine the damages sustained.

An insurance company (or the Fund, in the case of an insolvent insurance company) is not liable as the tortious wrongdoer, but simply stands ready, pursuant to the contract, to indemnify the tortfeasor for the loss. Under the provisions of section 546(a), before a claimant can recover from the Fund, the claimant must first recover any amounts available under the claimant’s own insurance policy.

Having established that the arbitration awards were properly determined, we now address the question of whether, under the circumstances of this case, the doctrines of collateral estoppel and/or res judicata apply to bar further litigation of the plaintiffs’ personal injury claims.

A valid arbitration award has all the force of an adjudication, and precludes the parties from again litigating the same matters. (Monmouth Public Schools, District No. 38 v. Pullen (1985), 141 Ill. App. 3d 60, 489 N.E.2d 1100.) Initially, we note that res judicata would not apply in the instant case because the defendants and the Fund were not parties to the arbitration proceeding. (See Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App. 3d 516, 437 N.E.2d 1253.) On the other hand, collateral estoppel or estoppel by verdict, a branch of res judicata, is narrower in scope and prohibits the relitigation of an issue essential to and actually decided in an earlier proceeding by the same parties or their privies. (Blair v. Bartelmay (1986), 151 Ill. App. 3d 17, 502 N.E.2d 859.) Identity of party for application of collateral estoppel is satisfied so long as the party against whom its application is sought is identical in both actions and had a full and fair opportunity to contest an issue which was necessarily determined in the prior proceeding. (Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App. 3d 516, 437 N.E.2d 1253.) The doctrine will not be applied if under the circumstances of the case it would result in an injustice to the party against whom it is asserted. Fred Olson Motor Service v. Container Corp. (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098.

Though it appears that there are no cases in Illinois directly on point, we find Coronet Insurance Co. v. Booker (1987), 158 Ill. App. 3d 466, 511 N.E.2d 793, instructive. In Coronet, the defendant, Booker, originally brought suit against the uninsured motorist and obtained a default judgment in the amount of $6,000. Booker’s uninsured motorist claim was submitted to arbitration, and the arbitrator entered an award of $9,000. The plaintiff, Coronet, filed a complaint requesting a declaratory judgment to vacate the arbitration award. The trial court vacated the arbitrator’s award to the extent that it exceeded $6,000. On appeal, the court, in dicta, held that the trial court correctly reduced the arbitrator’s award by $3,000, because under the doctrine of collateral estoppel the amount of Booker’s damages had previously been adjudicated in the earlier action.

In the instant case, the plaintiffs’ damages were determined by the arbitration panel. The plaintiffs did not seek review of that decisión, and have not alleged that they did not receive a full and fair opportunity to contest the issue of damages in arbitration. They have not explicitly alleged that their damages exceeded the amount of their awards, but by implication assert that a trial in their personal injury action could result in a larger damage determination. We do not find that under the circumstances of this case application of collateral estoppel would result in an injustice to the plaintiffs. Nor do we find the facts of this case to fall within any of the exceptions to the general rule that the prior determination of an issue of fact or law in a valid determination precludes relitigation of that issue in a subsequent proceeding. (See Restatement (Second) of Judgments §§28, 29 (1982).) By choosing to proceed to arbitration and in that forum having their damages properly and conclusively determined, they are collaterally estopped from relitigating that issue and any other issue necessarily determined in that proceeding. Therefore, the trial court erred in denying the defendants’ motion to dismiss plaintiffs’ action.

Lastly, we consider the propriety of the trial court’s dismissal of Pekin’s intervening complaint. The trial court dismissed Pekin’s complaint based on its interpretation of the nonrecovery provisions of section 546(a) of the Code (Ill. Rev. Stat. 1987, ch. 73, par. 1065.96(a)). The court reasoned that, since the plaintiffs’ recovery against the Fund would be reduced by the amount paid on the plaintiffs’ uninsured motorist claim, there was “no money to which any lien [could] attach.” On appeal, Pekin contends that it has the right to a contractual lien against the proceeds of plaintiffs’ personal injury action. Pekin asserts that its right to claim a lien against any recovery derives from its contract with Stephen Herriford and is supported by the statutory law and public policy of this State.

Pekin’s argument, however, fails to take into account the policies underlying the Fund. In Pierre v. Davis (1987), 165 Ill. App. 3d 759, 520 N.E.2d 743, the plaintiff was injured in the course of his employment while making a delivery to the defendant restaurant. The plaintiff recovered $6,983.56 from his employer’s workers’ compensation insurer, the U.S. Insurance Group. Thereafter, the plaintiff filed suit against the defendant charging negligence. The plaintiff’s employer filed an intervening petition “for the use of U.S. Insurance Group” to recover the $6,983.56 paid to the plaintiff based on the insurer’s lien under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Before the trial, the defendant’s insurer became insolvent and the defense against the plaintiff’s claim was undertaken by the Fund. After a jury verdict, a judgment of $6,141.60 was entered in favor of the plaintiff. The trial court denied the defendant’s post-trial motion to have the judgment deemed satisfied pursuant to the “covered claim” and “non-duplication of recovery” provisions of the Fund. The reviewing court reversed based on its construction of the term “covered claim” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.84— 3), finding that “it would counteract the purposes of the Fund to allow a solvent insurer to be reimbursed by the proceeds of the Fund.”

In the instant case, Pekin claims that pursuant to its contract with Stephen Herriford, it has a right to claim a lien against the plaintiffs’ recovery. We find the reasoning of Pierre dispositive, in that it would undermine the purposes of the Fund to allow Pekin to be reimbursed from the assets of the Fund. We find unavailing Pekin’s arguments respecting the statutory law and the general public policy of enforcing insurers’ contractual liens and subrogation rights. We conclude that the protections afforded by statute to the assets of the Illinois Insurance Guaranty Fund override the lien provisions contained in the instant policy. Although the Pierre court did not address the issue, we find that the the statutory “non-duplication of recovery” provisions of section 546(a) (Ill. Rev. Stat. 1987, ch. 73, par. 1065.96(a)) provide ample authority for the dismissal of Pekin’s intervening complaint.

The judgment of the circuit court of Peoria County as it regards the dismissal of the intervenor-appellant’s complaint is affirmed; the order of the circuit court denying defendants’ motion to dismiss the complaint is reversed, and this cause is remanded with directions that said motion be granted.

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

WOMBACHER, J., concurs.

JUSTICE BARRY

concurring in part and dissenting in part:

While I agree that the arbitration process was statutorily required in this case, I cannot subscribe to the majority’s determination that, under the circumstances of this case, plaintiffs are precluded by the doctrine of collateral estoppel from litigating their claims in court. I agree with the majority’s disposition of the appeal of Pekin Insurance Company.

The stated purpose of article 34 of the Illinois Insurance Code is to “provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment, to avoid financial loss to claimants or policyholders because of the entry of an Order of Liquidation against an insolvent company, and to provide a Fund to assess the cost of such protection among member companies.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.82.) In other words, the primary legislative “purpose is to place [injured] claimants in the same position that they would have been in if the liability insurer had not become insolvent.” (Lucas v. Illinois Insurance Guaranty Fund (1977), 52 Ill. App. 3d 237, 239, 367 N.E.2d 469.) And, so as to protect the Fund’s resources and to avoid windfall judgments, a “non-duplication of recovery” provision is included in the statutory scheme: “Any insured or claimant having a covered claim against the Fund shall be required first to exhaust his rights under any provision in any other insurance policy which may be applicable to the claim. Any amount payable on a covered claim under this Article shall be reduced by the amount of such recovery under such insurance policy.” Ill. Rev. Stat. 1987, ch. 73, par. 1065.96.

Most disturbing to me about my colleagues’ opinion is how they deftly sidestep plaintiffs’ constitutional question in order to reach their result. In this regard, the parties agree that plaintiffs were first required to claim their damages under the uninsured motorist provisions of the Pekin Insurance policy before proceeding in this suit against the Fund. The majority, however, rejects this single point of agreement and rules that plaintiffs must first obtain a judgment against the insolvent defendants (represented by the Fund); and, in derogation of the principle of stare decisis, the majority sub silencio overrules binding legal precedent holding that section 546(a) of the Illinois Insurance Code means “that an insured must first proceed under any rights conferred by his insurance policy” before proceeding against the Fund. (Emphasis added.) Spearman v. State Security Insurance Co. (1978), 57 Ill. App. 3d 393, 395, 372 N.E.2d 1008, 1009, citing Lucas v. Illinois Insurance Guaranty Fund (1977), 52 Ill. App. 3d 237, 367 N.E.2d 469.

The precise question before the Spearman court was “whether an insured must first file a claim under the uninsured motorist provisions of his insurance policy, or proceed against the Fund.” (Spearman, 57 Ill. App. 3d at 395, 372 N.E.2d at 1009.) The Spearman court unambiguously ruled in favor of first filing against the insurer; and the parties before us today do not dispute that point, but the majority does. Since the majority sua sponte takes issue with Spearman, I am constrained simply to note my dissent, and I quote briefly from Spear-man’s rationale, with which I agree:

“Requiring plaintiff to proceed first against the Fund would be contrary to the intent of the legislature. Plaintiff is paying a premium, a portion of which buys the uninsured motorist coverage. [The insurer] cannot accept this money and then attempt to limit its liability by arguing that plaintiff should make a claim under the Fund rather than her insurance policy.” Spearman, 57 Ill. App. 3d at 395, 372 N.E.2d at 1009.

Hereafter, in this district at least, in order not to “waive” their right to a jury trial of their damages in these cases, plaintiffs will have to first initiate litigation, contra to section 546(a), against the Fund, thereby incurring the full panoply of litigation fees and expenses. After obtaining a judgment, plaintiffs would then pursue their rights under uninsured motorist insurance. Presumably, by virtue of the doctrine of collateral estoppel, the amount of plaintiffs’ uninsured motorist recovery would not be subject to arbitration, but would be subject to limitations based on the coverage of their own uninsured motorist insurance and the judgment entered as a result of their lawsuit against the liable parties. Then, allowing for the statutory offset, plaintiffs would inform the Fund whether or not a balance is owed on the State court judgment. Plaintiffs in the rest of this State, on the other hand, will have to ponder whether the law as respects them is that stated in Spearman or by the majority here.

The majority relies on Lucas, a case decided before Spearman and which addressed only the issue of whether the injured plaintiffs, who were awarded a judgment in excess of the liability limit of the tortfeasor’s insurance, could recover the full policy limit from the Fund or whether plaintiffs’ recovery was limited to the difference between their recovery from their own uninsured motorist coverage and the insolvent insurer’s policy. It is unclear from the facts recited in Lucas whether plaintiffs pursued their rights under their own insurance before or after they were awarded judgments at trial. The court held only that the Fund was responsible for the “difference between the amount of the insolvent insurer’s policy limits and the amount paid to claimants] by [their] own insurer.” (Lucas, 52 Ill. App. 3d at 239, 367 N.E.2d at 471.) The timing of plaintiffs’ claims was not at issue in Lucas-, therefore, I find the opinion less relevant for purposes of the inquiry before us than Spearman.

With respect to the Fund’s collateral estoppel argument, I find both of the Fund’s primary authorities — Monmouth Public Schools v. Pullen, District No. 38 (1985), 141 Ill. App. 3d 60, 489 N.E.2d 1100, and Coronet Insurance Co. v. Booker (1987), 158 Ill. App. 3d 466, 511 N.E.2d 793 — readily distinguishable.

It should first be noted that Monmouth is not a Fund or insurance case, but rather a labor relations dispute. Defendant teacher was on maternity leave during the first semester of the 1981-82 school year. In December of the following year, having been denied salary credit for the full 1981-82 school year, she brought a grievance. The matter proceeded to arbitration, and the plaintiff school board successfully defended its position on the ground that the employee’s grievance was not brought timely pursuant to the parties’ collective bargaining agreement. The arbitrator determined that the grievant’s complaint was not arbitrable. The teacher then attempted to obtain redress by filing another grievance at the beginning of the 1983-84 school year, complaining of the board’s failure to grant the one-year salary credit to bring her salary up to the anticipated level based on the partial year of service in 1981-82. The board sought a judicial stay of the latter grievance arbitration on the ground that the employee’s grievance was barred by prior arbitration of salary credit based on the same period of maternity leave. The circuit court agreed with the school board that the doctrine of res judicata barred relitigation of the salary schedule question, and that decision was affirmed on appeal. The court stated:

“[T]he doctrine of res judicata, or estoppel by judgment, was applicable despite the fact that the grievances were phrased alternatively in terms of placement on the salary schedule for the school years 1982-83, and 1983-84; this does not change the actual issue [citation], which was found as not timely pursued initially under the specific terms of the bargaining agreement.” Pullen, 141 Ill. App. 3d at 69, 489 N.E.2d at 1106.

In Coronet, the insured, Booker, obtained a $6,000 default judgment in the circuit court against an uninsured motorist in Booker’s lawsuit seeking damages for injuries sustained in a car accident. Booker also filed a claim with Coronet, his insurer, under the uninsured motorist provisions. The insurance claim proceeded to arbitration, and the arbitrator awarded Booker $9,000. Coronet then sought declaratory judgment in the circuit court on grounds that the arbitrator had exceeded his authority by awarding an amount in excess of $6,000. The circuit court agreed and entered judgment vacating the arbitrator’s award to the extent it exceeded $6,000. On appeal, the court affirmed, holding that the doctrine of collateral estoppel barred relitigation of the question of damages. The court reasoned:

“The doctrine of collateral estoppel prevents relitigation of an issue previously decided in an earlier proceeding by the same parties or their privies. The doctrine may be applied as long as the party against whom application of the doctrine is sought, Booker in this case, is identical in both actions and had a full and fair opportunity to litigate the issue which was necessarily determined in the prior proceeding. [Citation.]
At arbitration in the instant case, the only issue was liability; whether the uninsured motorist caused Booker’s injuries. No dispute existed as to damages because they were previously adjudicated in Booker’s prove-up against the uninsured motorist. Consequently, the trial court correctly reduced the arbitrator’s award by $3000.” Booker, 158 Ill. App. 3d at 471, 511 N.E.2d at 797.

Obviously, neither Monmouth nor Coronet answers the question before us today — whether an arbitration award of damages within the limits of an insured’s uninsured motorist coverage has res judicata or collateral estoppel effect on the insured’s previously filed lawsuit against the uninsured motorist. The party against whom issue preclusion was asserted in both Monmouth and Coronet had had an opportunity to fully present his case in the forum initially selected. In Monmouth a second arbitration proceeding was sought to resolve an issue previously resolved in arbitration between the same parties. In Coronet an injured insured obtained judgment by default in the lawsuit against the uninsured driver before the question of liability was submitted to arbitration under the uninsured motorist provisions of the injured party’s policy. At first blush the facts here appear to be the mere converse of those the court considered in Coronet, but in fact they compel the same result. Unlike the present case, the issue submitted for arbitration in Coronet did not require the arbitrator to redetermine damages.

My independent research reveals a case decided by the court of appeals of Michigan which is factually closer to the case before us than either Monmouth or Coronet. In Detroit Automobile Inter-Insurance Exchange v. Kurak (1978), 81 Mich. App. 217, 265 N.W.2d 86, the Michigan court determined that neither collateral estoppel nor res judicata precluded an insured who was insured under both her own and her father’s insurance policy from pursuing her rights to arbitrate damages under the second policy after having recovered an arbitration award within the limits of the first policy. The court cautioned only that, to avoid duplication of recoveries, the amount of the first arbitration award was to be considered in any subsequent arbitration. In my opinion the circumstances before us present a far more compelling case for rejecting res judicata and collateral estoppel defenses. It would seem that if an arbitrator’s award does not preclude subsequent arbitration of a plaintiff’s damages under a second policy of in: surance, there should be no reason why such award should preclude plaintiffs’ pursuit of full and just compensation from the liable parties’ insurer in a court action.

Further support for rejecting these doctrines appears in relevant sections of the American Law Institute’s Restatement (Second) of Judgments. Whereas an arbitration award may generally be said to have preclusive effect on subsequent litigation of issues therein determined (Restatement (Second) of Judgments §84 (1988)), the rule is far from inflexible. It is, in truth, fraught with exceptions. I find several of those exceptional circumstances that support the circuit court’s decision to deny issue preclusive effect to the arbitrators’ awards of damages in this case. They are as follows:

First, “[tjreating the issue as conclusively determined would be incompatible with an applicable scheme of administering the remedies in the actions involved.” (Restatement (Second) of Judgments §29(1) (1982).) By statute, plaintiffs here were required to first “exhaust” their rights under the Pekin policy. (Spearman, 57 Ill. App. 3d 393, 372 N.E.2d 1008.) But, the statute also anticipates■ that the injured parties will be in no worse position by virtue of the defendants’ insurer’s insolvency than they would have been had the insurer been solvent. Ergo, if plaintiffs injured by liable parties whose insurers are solvent are entitled to present their case to a jury for a determination of damages, then it would be an injustice incompatible with the statutory scheme to find that the plaintiffs here should be denied an opportunity to litigate their damages in a court action.

Second, “[t]he forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined.” (Restatement (Second) of Judgments §29(2) (1982).) As aforesaid, prior to the Fund’s participation, plaintiffs here demanded a jury trial — a valuable procedural and substantive opportunity not available in arbitration (See Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 530 N.E.2d 431 (discussing in an employment context, wherein a retaliatory firing was charged, the danger of preempting State court action and thereby delegating the ultimate determination of Illinois public policy to privately appointed arbitrators)), and a right declared by Thomas Jefferson to be more precious to the maintenance of a democracy than the right to vote.

Third, “[tjreating the issue as conclusively determined may complicate determination of issues in the subsequent action or prejudice the interests of another party thereto.” (Restatement (Second) of Judgments §29(6) (1982).) To the extent that issues of liability, including plaintiffs’ contributory negligence if any, are not submitted for the arbitrators’ consideration, defendants would be potentially prejudiced by treating the issue of damages as conclusively determined by an arbitration award. Moreover, in other circumstances, for example if the arbitrators’ award had greatly exceeded the uninsured motorist coverage limits, the Fund would likely resist application of issue preclusion doctrines on grounds that defendants’ position was inadequately represented by plaintiffs’ insurer, that they were unfairly prejudiced by the arbitration proceedings, or that the arbitrators had exceeded the scope of their authority.

Fourth, “[a] new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two [fora] or by factors relating to the allocation of jurisdiction between them.” (Restatement (Second) of Judgments §28(3) (1982).) In this case, the “Decision of Arbitrators” as it appears in the record gives very little insight into the scope of the issues or formality of the proceedings before the arbitrators. It recites merely, “This cause having come on for hearing before the undersigned arbitrators, petitioners [Stephen and Clifford Herriford] present personally and by Morton S. Goldfine, their attorney, and respondent [Pekin Insurance Company] present by John P. Fleming, the arbitrators having heard the testimony and stipulated documentary evidence and being fully advised in the premises hereby renders the [aforementioned] award[s].” The use of stipulated evidence would indicate a less adversarial posturing of the parties to the arbitration than would be expected in the action between the injured plaintiffs and the defendants in this suit. See also State Farm Mutual Automobile Insurance Co. v. Amirpanahi (1988), 50 Wash. App. 869, 751 P.2d 329 (wherein injured insureds arbitrated with liable party’s insurer and obtained an award $14,763.42 in excess of the coverage ceiling of the liable party’s insurance. Injured insureds then pursued their claim under their own uninsured motorist policy with State Farm. State Farm resisted arbitration of the damages question on grounds of issue preclusion, and sought a declaratory judgment ordering them to pay only the difference between what the injured insureds had already recovered and the first arbitration award. On appeal, the court rejected the insurer’s position on the ground that the arbitrator had exceeded his limited authority in determining damages in excess of the policy limit. The court observed that its decision was in accord with Restatement (Second) of Judgments §28(3) (1982)).

And fifth, “other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.” (Restatement (Second) of Judgments §29(8) (1982).) In this case, the injured plaintiffs sought first to litigate the question of damages in the circuit court, but for reasons beyond their control, the court has become the forum for the “subsequent” action. There is no suggestion that it was foreseeable to plaintiffs at the time of their initial filing that the Fund would be undertaking the defense, thereby forcing them to exhaust their rights under the uninsured motorist provisions of Stephen’s policy before they could litigate the question of damages to a jury. (See Spearman, 157 Ill. App. 3d 393, 395, 372 N.E.2d 1008.) These circumstances — the fact that the Fund was an unforeseen participant in the suit, that plaintiffs made their request for a jury determination of damages in the first place and that they were placed in the position they now find themselves by force of Illinois statute and precedential case law — are compelling justifications for permitting them to pursue their litigation in State court.

The Fund suggests that if plaintiffs are not satisfied by the arbitrators’ award of damages in an amount less than policy limits, then to avoid issue preclusion they were required to vacate their awards in court pursuant to the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 112) and file yet another suit against Pekin Insurance in order to “exhaust” their rights under the uninsured motorist provisions. Apparently the Fund would have the plaintiffs risk losing the limited damages won in arbitration, for which an uninsured motorist premium was paid, in order to pit their legal and monetary resources against a battery of lawyers representing not only defendants and the Fund, but their own insurer as well, if they are to become entitled to litigate their damages in court. In my opinion, the procedure suggested by the majority is likewise cumbersome and costly. I see sore little in the facts of this case to commend rigid application of the doctrines of res judicata or collateral estoppel.

Simply stated, I reject the Fund’s position as inimical to the legislative purpose of every statute applicable to this action. In sum, and notwithstanding plaintiffs’ legitimate concerns of the trampling of their constitutional rights that the majority’s determination represents, I find that general policies of fairness as expressed in the afore-cited authorities support the decision of Circuit Judge Eagleton to deny defendants’ motion to dismiss this suit on grounds of issue preclusion.

I would affirm the judgment of the circuit court and remand this cause for further proceedings.


source: Caselaw Access Project

author: JUSTICE WOMBACHER

license: Public Domain

text:
    TERESA WINGATE, as Adm’r of the Estate of Brian Charles Valle, Deceased, et al., Plaintiffs-Appellants, v. CAMELOT SWIM CLUB, INC., et al., Defendants-Appellees.
    Third District
    No. 3—89—0061
    Opinion filed February 6,1990.

      Duane Thompson and Raymond J. Conklin, both of Braud/Warner, Ltd., of Rock Island (Michael J. Warner, of counsel), for appellant.
    Calif, Harper, Fox, Dailey & Slover, of Moline (Dennis R. Fox and Robert T. Park, of counsel), for appellee Camelot Swim Club, Inc.
    Kenneth M. Collinson, of Collinson & Darrow, of Milan, for appellee Sue Villagomez.
    Samuel S. McHard, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee Rachelle Stephens.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Plaintiff Teresa Wingate, as administrator of the estates of her two minor children and individually, brought a wrongful death action in the circuit court of Rock Island County. The trial court granted defendants’ motions for summary judgment and denied the plaintiff’s motion for leave to file a fourth amended complaint. Plaintiff appeals.

The record reveals the following information. On December 21, 1982 three children, Brian Charles Valle, age five, Bobbie Jo Valle, age seven, and Vanna Roeung, age seven, drowned in a man-made duck pond owned by defendant Camelot Swim Club, Inc. (Camelot). At the time of the drowning, the Valle children were under the care and supervision of Rachelle Stephens (Stephens), who had been hired by Teresa Wingate to babysit the children. Stephens had delegated her responsibilities to Sue Villagomez (Villagomez).

On December 18, 1984, the plaintiff, as administrator of the estates of her two minor children and individually, filed an eight-count complaint against defendants Camelot, Stephens and Villagomez. On the same date Chai Tan, individually and as administrator of the estate of Vannna Roeung, filed a three-count complaint against Camelot.

The two actions were consolidated. Plaintiff’s and Tan’s initial complaints and two amended complaints were dismissed. Plaintiff and Tan filed a third amended complaint. On December 27, 1988, summary judgment was granted in favor of all defendants. Plaintiff filed a motion for leave to file her fourth amended complaint. The trial court denied this motion.

The plaintiff alone filed this appeal of the granting of summary judgment and the denial of the plaintiff’s motion for leave to amend. Plaintiff raises three issues on appeal. Initially, plaintiff contends that the trial court erred in granting summary judgment in favor of defendant Camelot on counts I through IV of the third amended complaint.

We note at the outset that summary judgment is a drastic method of disposing of a case and should not be employed unless there is no issue of material fact and it is free from doubt that the moving party is entitled to judgment as a matter of law. Murphy v. Urso (1981), 88 Ill. 2d 444, 463-64, 430 N.E.2d 1079.

We are of the opinion that summary judgment was properly granted in favor of defendant Camelot, as it is apparent from an examination of relevant case law that Camelot did not owe a duty to plaintiffs decedents. The decision of our supreme court in Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, is directly on point and resolves this issue.

In Cope the court held that a retention pond, partially covered with ice and with a large portion of open water clearly visible, was not a dangerous condition which presented a peril not appreciated by the seven-year-old decedent. (102 Ill. 2d at 289.) Therefore, the court found that the defendant pond owner owed no duty to plaintiff’s decedent as a matter of law.

The tragic facts of the instant case parallel those of Cope. Like Cope, the instant case involved a man-made pond. The pond was partially frozen, with an open area of water. The victim in Cope was seven years old. In the instant case the victims were ages five and seven.

Although it is true that one of the victims here was five years old, we believe the language of the court in Cope controls: “The law then is that forseeability of harm to the child is the test for assessing liability; but there can be no recovery for injuries caused by a danger found to be obvious.” (102 Ill. 2d at 286.) The court in Cope reaffirmed its holding in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 944, by stating: “There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood by any child of an age to be allowed at large.” (Emphasis in original.) (102 Ill. 2d at 286-87.) We are of the opinion that the five-year-old victim was “of an age to be allowed at large” and therefore should have been aware of this obvious risk.

Plaintiff concedes that Cope represents the current law in Illinois and is controlling in regard to this issue. Plaintiff contends that in light of the circumstances of this particular case, Cope should be reexamined and modified. Plaintiff also contends that the risk of drowning in an open body of water is materially different from the risks and hazards presented by an ice-covered or partially ice-covered body of water.

We cannot agree that the risk of drowning in an open body of water is materially different from the risks and hazards presented by an ice-covered or partially ice-covered body of water. Open bodies of water have dangers such as sudden drop-offs and undercurrents. Ice-covered bodies of water have dangers such as thin areas or weak spots. The fact is that bodies of water, frozen or otherwise, constitute an obvious hazard that children of an age to be at large should be aware of and appreciate. Compare Pasierb v. Hanover Park Park District (1981), 103 Ill. App. 3d 806, 431 N.E.2d 1218 (child was not aware of where frozen creek began and shore ended due to snow cover).

We also note that a 1984 appellate court case, Weber v. Village of Carol Stream (1984), 129 Ill. App. 3d 628, 472 N.E.2d 1203, affirmed a trial court’s granting of summary judgment to defendant-owners of a frozen retention pond in which a nine-year-old boy drowned. The court found that, as a matter of law, the defendants didn’t owe a duty to the plaintiff’s decedent. It is for these reasons that we decline to alter from the clear guidelines of Cope.

The second issue raised by plaintiff contends that the trial court erred in granting summary judgment in favor of defendants Stephens and Villagomez.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. The question of duty is a question of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) Where there is no duty established, summary judgment should be allowed.

Plaintiff concedes that defendants Stephens and Villagomez were not under a duty to constantly supervise the children. Plaintiff alleges, however, that defendants Stephens and Villagomez had a duty to warn plaintiff’s decedents about the pond and the hazards of being out on the ice. We cannot agree. We have indicated that the partially ice-covered pond was an obvious danger, and as such, was something the children should have been aware of without a warning from the babysitters. We affirm the trial court on this issue.

The last issue raised by the plaintiff contends that the trial court erred by denying the plaintiff’s motion for leave to file a fourth amended complaint.

Section 2 — 1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, eh. 110, par. 2 — 1005(g)) provides: “Before or after the entry of summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” The court in Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728, addressed the language of this paragraph. In Siebert the trial court denied the plaintiff’s motion for leave to file a fourth amended complaint. The court examined the language of the section and found that the “just and reasonable” terms of section 2 — 1005(g) mirrors the language employed in section 2 — 616(a) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a)), which has been interpreted as requiring the trial court to permit amendment if it will further the ends of justice. Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 303, 484 N.E.2d 841; First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396, 384 N.E.2d 30.

The court in Siebert, quoting from Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, stated:

“The court in Kupianen delineated the relevant factors which should be considered in deciding whether the trial court properly exercised its discretion in denying amendment of the counterclaim: ‘whether the proposed amendment would cure the defective pleading [citation]; whether other parties would sustain prejudice or surprise by virtue of the proposed amendment [citations]; the timeliness of the proposed amendment [citation]; and whether previous opportunities to amend the pleadings could be identified. [Citation.] 107 Ill. App. 3d 373, 377, 437 N.E.2d 774.” Siebert, 161 Ill. App. 3d at 895.

In the case at bar, the trial judge determined that the proposed amendment failed to cure the defective pleading. Plaintiff had four years in which to amend her complaint. Six years had elapsed since the accident. We feel that the trial judge did not abuse his discretion in denying the plaintiff’s leave to file her fourth amended complaint and affirm the court on this issue.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    WILLIAM C. BEIERMANN, Plaintiff, v. WALTER EDWARDS, Defendant (The People of the State of Illinois ex rel. Department of Agriculture, Intervenor-Appellant, v. Walter Edwards, Defendant-Appellee).
    Second District
    No. 2—89—0284
    Opinion filed January 30, 1990.
    Rehearing denied March 12, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Peter V. Bustamante, Richard W. Merrill, Jr., and Richard F. Linden, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    O’Reilly, Cunningham, Norton & Mancini, of Wheaton (Thomas R. Weiler, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, William Beiermann, filed a complaint, seeking damages for personal injuries and lost wages sustained following an accident between defendant Walter Edwards and defendant Anjum Khan. Plaintiff’s employer, the State of Illinois (State), filed a complaint in intervention pursuant to section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)). Subsequently, Beiermann abandoned his personal injury action, allowing the State to substitute as plaintiff in intervention. One of the defendants, Khan, settled at trial. The jury rendered a verdict in favor of the remaining defendant, Walter Edwards, and the trial court entered judgment upon that verdict.

On appeal, the State argues that: (1) the trial court erred in refusing to bar the testimony of Debra Harrington, an occurrence witness, as a sanction for defense counsel’s misconduct; (2) the trial court erred in not excluding the testimony of Dr. Roger, Traycoff for defendant’s failure to disclose this witness as an expert pursuant to Supreme Court Rule 220(b)(1); (3) the trial court erred in requiring the State, as an intervener, to pursue, as its measure of damages, those damages which the original plaintiff, William Beiermann, would have been able to collect from defendant; and (4) the trial court erred in determining that there was sufficient evidence to submit to the jury Illinois Pattern Jury Instructions, Civil, No. 3.01 (2d ed. 1971) (hereinafter IPI Civil 2d No. 3.01), dealing with impeachment by prior inconsistent conduct.

On October 5, 1983, William Beiermann, an inspector for the Department of Agriculture, had just finished inspecting and calibrating the gas pumps at a Citgo gas station located on Route 20 in Roselle when the cars driven by the defendants collided at the entrance to the station. At the time of the collision Beiermann was standing inside the gas station completing paper work. Following the collision, defendant Edwards’ automobile struck the gas station building. According to Beiermann’s testimony at trial, he was leaning against the wall of the building when Edwards’ automobile struck it. Beiermann stated that he felt like he had been whacked in the back with a ball bat and that the impact knocked him face forward to the ground. Subsequently, he left the station building and began directing traffic away from the gas station. Beiermann did not complain to Debra Harrington, the station manager, or to the police or paramedics on the scene that he was hurt or injured.

Thereafter, Beiermann drove to his motel room in Joliet. It was Beiermann’s testimony that the pain in his back became intense when he arrived at the motel. When he could no longer bear the pain, he went to the motel desk, asked for the name of the nearest doctor, and then proceeded to the doctor’s office. According to Beiermann, the physician, Dr. Green, gave Beiermann some pain medication and recommended that Beiermann go to the hospital in Joliet. During Dr. Green’s testimony, the doctor denied telling Beiermann that he should go to the hospital and further testified that after examining Beiermann, he concluded that Beiermann could return to work the next day.

Beiermann stated that the following morning he was stiff and sore in the lower back when he awoke and that the pain was spreading. Beiermann testified that he decided to return home to Springfield so he could go to the local hospital. Before returning to Springfield, he drove back to the Citgo station in Roselle to verify addresses and phone numbers gathered the preceding day. While at the station, Beiermann told manager Debra Harrington that he had hurt his back.

Prior to trial, Debra Harrington was disclosed as an occurrence witness by Beiermann and by defendant Edwards. Edwards produced to Beiermann a statement Harrington had given to the police describing the accident. One week before trial counsel for defendant Edwards subpoenaed Harrington to appear for a discovery deposition. The date of the deposition, as set forth in the subpoena, was October 10, 1988. Defense counsel gave oral notice to counsel for the State that Harrington’s deposition was scheduled for October 11. On October 10, Harrington appeared at defense counsel’s Chicago office for her deposition.

At the hearing on the State’s motion for sanctions against defendant Edwards and his counsel for improper notice of Harrington’s deposition, counsel for the State related that on October 11 he received a telephone call from defense counsel’s secretary informing him that Harrington’s deposition had been canceled. The secretary stated that she did not know if the deposition would be rescheduled. Counsel for the State then telephoned Harrington to suggest that if she was going to talk to anyone, it would be fair to have all the parties present. Harrington informed counsel that she had already given her deposition on October 10 pursuant to a subpoena. Counsel for the State then prepared its motion for sanctions and had the motion delivered to the court and defense counsel.

At about 2:30 p.m. October 11, defense counsel phoned counsel for the State regarding some depositions to be taken later in the week. During the conversation, counsel for the State asked what happened with Harrington’s deposition. Defense counsel replied that he had decided not to take it.

Shortly thereafter, defense counsel called counsel for the State to explain the mix-up in the scheduling of Harrington’s deposition. It was defense counsel’s explanation that his secretary had made a clerical mistake and subpoenaed Harrington for October 10 instead of October 11. Defense counsel first learned of the mistake when he received a telephone call on October 10 from his firm’s Chicago office, indicating that Harrington was at that office for her deposition. According to counsel, he instructed his secretary to ask Harrington if she could return for her deposition the following date, October 11, but Harrington could not. Counsel then advised his secretary to try to contact counsel for the State while defense counsel proceeded to travel to the downtown office. When counsel arrived downtown, he learned that his secretary had been unable to reach counsel for the State due to the October 10 Columbus Day holiday.

Defense counsel explained to Harrington that he could not take her deposition since all the parties were not present. Counsel then asked if she would consent to giving him a “court-reported statement,” and Harrington agreed. Defense counsel stated that Harrington’s statement was substantially the same as the typewritten statement Harrington had given to the Roselle police shortly after the accident.

At the conclusion of the hearing on the motion for sanctions, the court determined that an “honest mistake” had been made and that no “evil motive” was intended by defense counsel’s actions. The court advised counsel that he should have sent Harrington home and then taken her statement at home if he wanted it. The court gave counsel for the State the option of barring defense counsel’s use of the statement if the State so desired. The State did not object to this sanction. Subsequently, the State called Harrington as its own witness.

At trial, Harrington testified that at the time of the accident in question she was working inside the gas station and that Beiermann was standing approximately three feet from the wall which was struck by defendant Edwards’ automobile. According to Harrington, Beiermann was still standing after the impact; he had not moved at all. Harrington stated that Beiermann did not appear to be physically injured after the accident and that he did not complain that his back hurt.

In November 1986, the State requested that Beiermann see Dr. Roger Traycoff, an expert in pain management. The State referred Beiermann to Dr. Traycoff for an evaluation of Beiermann’s complaints of chronic pain. The evaluation was to aid the State in the management of Beiermann’s worker’s compensation claim.

On October 12, 1988, defense counsel took the evidence deposition of Dr. Traycoff. Dr. Traycoff testified as to a variety of tests he performed upon Beiermann. As a result of these tests, and a complete physical examination of Beiermann, Dr. Traycoff concluded that there was some factor responsible for Beiermann’s pain other than an anatomical source and that there were enough inconsistencies in Beiermann’s history and physical examination to suggest a psychological component for his pain.

During Dr. Traycoff’s evidence deposition, the State moved that the doctor’s deposition be stricken pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220) because Dr. Traycoff would qualify only as an expert witness, and defense counsel had failed to timely disclose this fact to the State. Dr. Traycoff's testimony was limited to his physical examination of Beiermann, his conclusions based on that examination, and his interpretation of tests which he performed on Beiermann.

Dr. Traycoff’s testimony at his deposition revealed that he had had no contact with defendant or with defendant’s attorney prior to giving his evidence deposition. Defendant only learned of Dr. Traycoff when records of Beiermann’s treating physicians were subpoenaed.

Later, in a motion in limine the State moved to bar the defendant from calling any expert witness not previously disclosed (specifically, Dr. Traycoff). The trial court held that Dr. Traycoff was not a Rule 220 expert because he was hired by the State for the purpose of evaluating Beiermann’s worker’s compensation claim and not for the purpose of testifying.

During the jury instruction conference, defendant tendered IPI Civil 2d No. 3.01, dealing with impeachment by prior inconsistent statement or conduct. As given, the defendant’s instruction was limited to prior conduct inconsistent with testimony at trial. The State objected to the instruction, arguing that no witness at trial acted in a manner inconsistent with his testimony at trial. The court stated that Beiermann was impeached because “[h]is conduct was inconsistent with what he said.” The instruction was given to the jury.

The court fashioned its own damages instruction and submitted it to the jury. This instruction stated that the measure of damages was what the original plaintiff, Beiermann, could have recovered from defendant Edwards. The State objected, arguing that since the State was suing in its own name, the damages should be limited only to those sums the State would be properly entitled to recover, i.e., sums the State actually expended or would be required to expend in the future.

The jury returned a verdict in favor of defendant Edwards, finding that William Beiermann did not sustain an injury as a proximate cause of defendant’s conduct.

In its first contention the State argues that the trial court erred in refusing to bar the testimony of Debra Harrington, an occurrence witness, as a sanction for defense counsel’s misconduct. The State maintains that defense counsel willfully abused the discovery process when he took Harrington’s deposition without notice to the State and that the trial court's sanction of prohibiting the use of Harrington’s statement at trial was not an appropriate sanction proportionate to the seriousness of counsel’s misconduct. According to the State, defense counsel’s misconduct constituted grounds for a default judgment.

The imposition of sanctions is a matter largely within the discretion of the trial court and will not be disturbed on review unless the sanction imposed constitutes an abuse of discretion. (Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196.) In determining whether noncompliance with discovery orders or rules is unreasonable, the trial court should consider whether the offending party’s conduct is characterized by a deliberate and pronounced disregard for the discovery rules. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 532.) To determine whether a sanction order is just, this court must look to the conduct that gave rise to it and to the effect of that conduct on the parties. (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1057.) A default judgment, being a drastic sanction, is one which courts are reluctant to impose and which should be imposed only as a last resort in those cases where the actions of a party show deliberate, contumacious, and unwarranted disregard of the trial court’s authority. Kubian, 178 Ill. App. 3d at 196.

In its motion for sanctions, the State alleged that the deposition of Debra Harrington was taken without proper notice since the State had been notified that the deposition was to occur on October 11, 1988, when, in fact, it had been taken on October 10, 1988. At the hearing on the State’s motion, the State argued that defense counsel had deliberately disregarded the rules governing depositions by failing to cancel Harrington’s deposition once counsel learned the State could not be present on October 10 and by failing to inform the State that counsel had taken a “court-reported statement” on that date. The State asked the court to bar Harrington from testifying and to issue monetary sanctions.

In response, defense counsel explained that he had instructed his secretary to subpoena Harrington for October 11 but that his secretary had inadvertently inserted October 10 on the subpoena as the date for Harrington’s deposition. According to counsel’s explanation, he did not learn of the mistake in the date until his firm’s Chicago office phoned him on October 10 to inform him that Harrington was at the Chicago office awaiting her deposition. Counsel then talked to his secretary, who informed him that she had mistakenly inserted the wrong date on the subpoena.

Counsel inquired whether Harrington could return on October 11 for her deposition. When Harrington stated she could not return, counsel tried to contact counsel for the State. His attempts were unsuccessful, but he instructed his secretary to continue trying to get ahold of the State while he proceeded to the Chicago office. Counsel for the State was never reached due to the Columbus Day holiday, a State holiday, on October 10.

When defense counsel arrived at the Chicago office, he informed Harrington that there had been a mistake in scheduling her deposition and that he could not take her deposition since all the parties involved in the case were not present. However, counsel asked Harrington if she would agree to give a “court-reported statement.” Harrington agreed, and her statement was taken.

Defense counsel stated that on the following day, October 11, he instructed his secretary to contact counsel for the State, explain the mix-up, and tell him that Harrington’s deposition would not be occurring that day. When defense counsel spoke with the State’s counsel later in the day, defense counsel did not mention he had taken the witness’ statement but did, subsequently, discuss it when he received the State’s motion for sanctions.

Based on these facts, we agree with the trial court, which concluded, after hearing arguments of both counsel, that the “mix-up” in the date of the deposition was an “honest mistake” and that no “evil motive” was intended in notifying the State that Harrington’s deposition was to occur on October 11 but in subpoenaing her instead for October 10. The court determined that because defense counsel had used a subpoena to get Harrington to his office, he should have sent her home and not taken any statement once he discovered counsel for the State could not be present. Counsel for the State was given a copy of the statement and told by the court that it had the option of determining whether to bar defense counsel’s use of Harrington’s statement at trial. Subsequently, the court ordered that defense counsel could not use the statement for impeachment purposes if Harrington was called to testify.

Although we look with a dim view at defense counsel’s conduct, we believe the trial court did not abuse its discretion in determining that the appropriate sanction was to bar the use of Harrington’s statement at trial. Defense counsel’s conduct was not characterized by a deliberate disregard for the discovery rules, and counsel’s conduct had little, or no, effect on the State. Although, due to the mix-up concerning the date of Harrington’s deposition, no deposition was taken, Harrington had been disclosed on September 16, 1986, by Beiermann’s attorney as a witness to the occurrence. Thus, the State could have interviewed Harrington at any time it chose. Consequently, a more severe sanction such as a default judgment or barring Harrington's testimony at trial, as suggested by the State, would have been unjustified under the circumstances presented here.

Moreover, as defendant points out, the State did not object to the sanction the trial court imposed. Where it is contended that a procedure of the trial court is in error, the failure to object to such procedure in the trial court precludes its review. (In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 789.) Further, despite its request that Harrington be barred from testifying, the State called Harrington as its own witness. By doing so, the State waived its right to assert that Harrington’s testimony should have been barred.

Next, the State contends that the trial court erred in not excluding the testimony of Dr. Roger Traycoff for defendant’s failure to disclose the doctor as an expert witness pursuant to Supreme Court Rule 220(b)(1) (107 Ill. 2d R. 220(b)(1)). Defendant maintains that the trial court’s decision was proper because Dr. Traycoff was not retained by defendant for purposes of rendering an opinion but, instead, was hired by the State on Beiermann’s behalf to formulate a diagnosis, recommend therapy, and project the outcome of Beiermann’s condition.

Supreme Court Rule 220(b)(1) provides in pertinent part:

“In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party ***.” 107 Ill. 2d R. 220(b)(1).

The State admits that Dr. Traycoff was not retained by the defendant to render an opinion at the trial but, rather, was hired by a worker’s compensation adjustor for the State. Nevertheless, the State argues that Dr. Traycoff could not be considered a treating physician and, therefore, outside the meaning of Rule 220(b)(1) (see Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234-35), because the doctor was hired strictly to render an opinion on Beiermann’s worker’s compensation claim. In light of this fact, the State posits, the doctor constituted an expert who should have been disclosed pursuant to Supreme Court Rule 220(b)(1) regardless of whether he was retained by the party calling him to testify. The State further contends that because the doctor’s testimony that there was no anatomical basis for Beiermann’s pain undoubtedly affected the outcome of the trial, the defendant should have disclosed the doctor’s identity so that the State could have hired an expert to rebut Dr. Traycoff’s testimony. We do not agree with the State’s theory.

Rule 220 governs only those expert witnesses whose relationship with the party arose solely because a party retained the physician to render an opinion at trial; the physician’s relationship to the case, not the substance of his testimony, qualifies him as a Rule 220 expert. (Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 1093.) In the instant case, Dr. Traycoff was retained by a liability claims adjustor for the State before the State’s complaint in intervention was ever filed. Dr. Traycoff saw Beiermann on November 18, 1986; the State filed its complaint in intervention on October 30, 1987. Dr. Traycoff testified that he was hired by the State to formulate a diagnosis of Beiermann’s condition, to recommend therapy, and to project the outcome of Beiermann’s condition. According to the doctor, Beiermann was asked to return in two weeks. Based on this testimony, it is evident that Dr. Traycoff was not hired to render an opinion at trial but to evaluate Beiermann’s problem and to recommend possible treatment.

The fact that at trial Dr. Traycoff gave his opinion of Beiermann’s condition as developed from the doctor’s examination and diagnosis of Beiermann did not classify the doctor as an “expert.” Although Dr. Traycoff did not apparently “treat” Beiermann’s condition, his relationship with Beiermann was more in the nature of a treating physician than a physician hired to give an expert opinion at trial.

“While treating physicians may give opinions at trial, those opinions are developed in the course of treating the patient and are completely apart from any litigation. Such an opinion is not formed in anticipation of a trial, but is simply the product of a physician’s observations while treating the patient, which coincidentally may have value as evidence at a trial. In this respect, the opinions of treating physicians are similar to those of occurrence witnesses who testify not because they were retained in the expectation they might develop and give a particular opinion on a disputed issue at trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation.” Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234-35.

Here, Dr. Traycoff participated in an evaluation of Beiermann’s condition, and that condition was the subject matter of the instant trial. At trial, Dr. Traycoff testified only as to matters within his personal knowledge, and no hypothetical questions were posed to the doctor by defense counsel. Dr. Traycoff was not under defendant’s control but was called by defendant because the doctor had formed an opinion while treating Beiermann which the defense apparently believed had value as evidence at trial.

Under the circumstances presented in the instant case, we agree with the trial court, which found that Dr. Traycoff was not a Rule 220 expert. Dr. Traycoff was hired by the State for the purpose of an evaluation of a worker’s compensation claim and not for the purpose of testifying at trial. In this context, he was either a treating physician or the State’s expert. As either, defendant was not required to disclose Dr. Traycoff’s identity as his identity was already known to the State, which had originally hired him and could, therefore, claim no surprise by his medical testimony.

The State next contends that the trial court erred in requiring the State, as intervenor, to pursue, as its measure of damages, those damages which the original plaintiff, William Beiermann, would have been able to collect from defendant. It is the State’s position that because the State, as Beiermann’s employer, filed its complaint in intervention solely in its own name, it could only recover as damages those amounts it actually paid to or on behalf of Beiermann. This position, however, ignores the fact that although the State originally entered the instant suit as an intervenor, it was the State which later moved to have Beiermann dismissed as plaintiff and the State substituted in his stead.

We find the cases cited by both parties to be of little help in reaching a determination concerning the instant issue. Rather, we think that any determination rests in the interpretation of section 5(b) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)). When interpreting a statute the court’s function is to ascertain and give effect to the intent of the legislature. (Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358, 361.) In determining legislative intent, the statute must be read as a whole, and all relevant parts considered. Donnells v. Woodridge Police Pension Board (1987), 159 Ill. App. 3d 735, 742.

The pertinent parts of section 5(b) of the Act provide:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative ***.
* * *
In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act ***.” Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).

According to these provisions, an employer required to pay compensation to an employee under the Act is entitled to reimbursement of amounts paid as compensation from any damages recovered by the employee in a proceeding brought by the employee against a culpable third party. If, however, an employee fails to proceed against such third person, the employer may in his own name or in that of the employee commence a proceeding against such third person for damages on account of injury to the employee. Out of any damages recovered the employer must pay to the employee any amount in excess of the compensation paid.

In the instant case, plaintiff Beiermann sought damages for personal injuries sustained following an accident involving the defendant. As a result of a worker's compensation claim filed by Beiermann against the State, the State was required to pay certain sums to Beiermann. In order to recover those sums, the State filed a complaint in intervention, seeking to recover such sums from any damages recovered by Beiermann from defendant.

However, despite the fact that Beiermann originally filed suit against defendant, Beiermann subsequently abandoned his cause of action, and the State then moved to be substituted as plaintiff in the case. That motion was granted, and the State, as plaintiff, then proceeded to trial against defendant. Although the State did not originally commence the suit against defendant, when the original plaintiff, Beiermann, elected not to proceed to trial against defendant and the State, in turn, elected to substitute as plaintiff in the instant action, the State became required, according to section 5(b) of the Act, to proceed against the culpable third person (the defendant) for the recovery of damages on account of injury to Beiermann.

Had Beiermann not abandoned his cause of action and prosecuted it against defendant, the State’s participation in the suit would have been limited to protecting its lien for the amount of benefits paid to Beiermann against any judgment Beiermann recovered from defendant. However, the State’s substitution as plaintiff in the instant action and its subsequent prosecution of the case to judgment created in the State “a right akin to the common law right of subrogation” (see Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 381), i.e., a right to seek from defendant damages for Beiermann’s alleged injuries.

This is the same determination reached by the trial judge regarding the measure of damages required by the State in the instant situation. We agree with the trial judge’s conclusions that he could see no difference, logically or statutorily, between an employer which originally proceeds against a third-party tort-feasor when an employee fails to take legal action against that third party and an employer which substitutes as plaintiff for an employee who originally files an action against the culpable third party but then subsequently elects to abandon that cause. In either case, the measure of damages would be those damages which the employee would have been able to collect from the defendant. Therefore, the trial court did not err in deciding that the State was required to seek as damages those damages to which Beiermann would have been entitled had he pursued the case in his own name.

Nonetheless, even if the court erred in reaching this determination, its decision would not constitute reversible error. A review of the record shows that a special interrogatory was submitted to the jury for its deliberation. The jury’s response to that interrogatory shows that the jury did not believe Beiermann sustained his injuries as a proximate cause of defendant’s conduct. Having reached its decision that defendant was not liable for Beiermann’s injuries, the jury was not required to reach the issue of damages. Therefore, no justification for a reversal on the question of damages exists.

In its final contention the State argues that the trial court erred in determining that there was sufficient evidence to submit to the jury IPI Civil 2d No. 3.01, dealing with impeachment by prior inconsistent conduct.

IPI Civil 2d No. 3.01 states in relevant part:

“The credibility of a witness may be attacked by introducing evidence that on some former occasion the witness acted in a manner inconsistent with the testimony of the witness in this case on a matter material to the issues.”

It is the State’s position that the giving of this instruction was improper because there was no testimony by any witness and, in particular, by Beiermann that on any occasion the witness acted in a manner inconsistent with his testimony. We disagree.

IPI Civil 2d No. 3.01 is a cautionary instruction, and the decision to give or not give it is totally within the discretion of the trial judge. (Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 464.) The giving of a particular jury instruction is justified if it is supported by some evidence in the record, and the trial court has the discretion in deciding which issues are raised by the evidence. Black v. Peoria Marine Construction Co. (1987), 160 Ill. App. 3d 357, 364.

At trial William Beiermann testified as to the injury he received when defendant Edwards’ automobile struck the station wall against which Beiermann was allegedly leaning. Beiermann stated that he felt like he had been whacked in the back with a ball bat and that the pain in his back became so unbearable when he returned to his motel room later that day that he went to see the nearest doctor. However, Beiermann’s conduct was inconsistent with this testimony.

Both Beiermann and station manager, Debra Harrington, testified that shortly after Edwards’ automobile struck the station wall, Beiermann left the station and began directing traffic away from the gas station. When asked by Harrington if he was all right, Beiermann replied positively, never mentioning to Harrington that his back hurt. Nor did he tell the police or paramedics on the scene that he had been hurt or injured. The following day, despite the pain Beiermann testified he was experiencing and his decision to return home to a local hospital in Springfield, Beiermann drove in a completely opposite direction back to Roselle, to verify information gathered the preceding day and to tell Harrington that he was injured. Based on this conduct, the trial judge determined that Beiermann’s testimony was sufficiently impeached so as to justify the giving of IPI Civil 2d No. 3.01.

Furthermore, IPI Civil 2d No. 3.01 did not instruct the jury specifically to compare Beiermann’s conduct and testimony but rather advised the jury regarding what it might consider in determining the credibility of a witness. We conclude that the trial judge did not abuse his discretion in tendering this cautionary instruction, as there was sufficient evidence to warrant giving the instruction.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

DUNN and INGLIS, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID G. LINDSAY II, Defendant-Appellant.
    Fourth District
    No. 4—89—0469
    Opinion filed February 15,1990.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On April 21, 1989, the circuit court of Macon County entered judgment on a jury verdict returned finding defendant David G. Lindsay II guilty of the offense of second degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.) The court subsequently sentenced him to an extended-term sentence of 19 years’ imprisonment.

On appeal, defendant contends the court abused its discretion in sentencing him. He indicates the minimum sentence for first degree murder is 20 years’ imprisonment. He argues that, in sentencing him to a 19-year extended term for second degree murder, the court essentially sentenced him for first degree murder and rejected the mitigating evidence which the jury apparently accepted in finding him not guilty of the latter offense. For the reasons hereinafter stated, we affirm.

The evidence presented at trial revealed that, on December 20, 1988, Decatur police responded to a “911” telephone call they received from defendant in which he identified himself and informed the police that “something terrible ha[d] happened,” that he did not want his three children going home because “they [would] find [his] wife dead on the floor.”

Upon arriving at the Lindsay residence, Decatur police discovered the body of a woman, later determined to be defendant’s wife, Christine Lindsay, lying on the kitchen floor with a plastic bag over her head. The police observed a lot of blood around the body and more blood about the kitchen. They discovered an unattached, chrome table leg near the woman’s body which was smeared with blood.

The Daytona Beach Shores police apprehended defendant in Florida on December 26, 1988. In his car, the police found a large garbage bag filled with blood-soaked towels and other items. They also discovered a broken radio and a pipe with red stains on them and a Christmas card which had the following message on it: “I’m D. L., 29 Ohio Drive. I have killed my wife. She is in my kitchen.”

A police officer testified that defendant told him he and his wife had gotten into an argument over money problems on the morning in question, during which his wife had tried to cut him with a steak knife and tried to hit him with a table leg and a radio. The officer said defendant admitted he was able to get the latter items away from her and struck her with them several times. The officer said he did observe some small cuts on defendant’s hands but did not notice any injury to his face or body. He said he did not complain about any type of injury elsewhere on his body.

The officer said defendant told him he cleaned up the kitchen area and himself, and tried to keep his youngest son in the basement during that time. He then took that son to his parents and called the police from a mall to tell them his wife was dead.

Defendant took the stand in his own defense. He stated that, around the date in question, he and his wife had been experiencing financial problems. He had just gotten paid on December 15, 1988, and was not expecting any more money before Christmas. They both wanted their 1988 Christmas to be better than their 1987 Christmas, which had been “small” because he had been out of work.

Defendant testified that, because his wife was depressed about their financial situation, he lied to her and told her he had additional monies coming to him. On the evening of December 19, 1988, he showed her a photocopy of a check which he had “doctored” to make it look like a new check. Defendant stated his wife told him it looked like a copy to her, and they discussed it briefly.

On the morning of December 20, 1988, defendant woke up around 6:50 a.m. and took his daughter and son to school. Defendant said that, when he returned home around 8:30, his wife brought up the subject of the check. He said she questioned him about it in an angry tone of voice. He stated the next thing he knew she was coming at him with a knife and tried to stab him with it. He said he received several small cuts on his hand when he attempted to knock the knife away from her and then grabbed it from her.

Defendant stated his wife then lunged at him, knocked him off balance and hit him twice in the head with an iron pipe. He indicated the blows even knocked off his glasses. Defendant identified a bent pair of glasses with a missing lens and a broken nose piece as his own glasses. He admitted his wife’s actions at that point had “angered” him, and he knew he had to do something to get her away. He said he put his hands on her face and pushed her backward.

He said his push caused his wife to back into the kitchen table, and one of the legs from that table came loose and tipped over. He stated she again came at him with the pipe, and, because he believed his wife was going to hit him with it, he used his daughter’s radio to block it. Defendant admitted his block attempt made the pipe and the radio fly into his wife’s face, and she sustained cuts to her face as a result. He further acknowledged he noticed blood around her eye and mouth at that point.

Defendant stated his wife’s response was to push both the radio and pipe back at him. He said the act did not cause him any physical harm because she did not hit him that hard. He again pushed his wife away, and she lost her balance and fell on the ground. He said that, while on the ground, she grabbed the table leg which had fallen. In response, he picked up the pipe which had fallen. He said that, when his wife saw he had the pipe, she came at him swinging the table leg.

Defendant said he again pushed her away, but she came at him again with the table leg and hit him in the head. He stated he swung the pipe at her and believed he hit her. The blow he received from the table leg also knocked him off balance, and he ended up on the floor. He said his fall caused him to lose the pipe, so he grabbed the table leg from his wife. His wife picked up the pipe, lunged at him with it and hit him in the head. He said, in response, he swung the table leg at her and hit her in the head.

Defendant stated that, at that point, his wife had hit him several times in the head, and he was feeling dizzy. He said that was all he could recall about the scuffle, and the next thing he knew, he woke up and saw his wife on the floor surrounded by a lot of blood. He said he checked her pulse, and she did not have one.

Defendant said he had not intended to kill his wife or cause her serious physical harm. He indicated that, when he struck his wife during their scuffle, he was doing no more than trying to prevent her from hitting him. He admitted that, as the fight progressed, he had become more and more angry about it. He said he was very upset about what had happened.

He subsequently left the kitchen to check on his three-year-old son to make sure he was okay. He said he also threw his clothes in the washer and cleaned up the kitchen so his son would not see the mess. He stated he also placed a plastic bag over his wife’s head because he did not want his son to see her and the sight was also bothering him. He took his son to his mother’s house and then called “911” to report the incident because he did not want his other children to come home from school and find their mother. Finally, he said he started driving with no destination in mind and ultimately ended up in Florida.

The pathologist who performed the autopsy on the body of Christine Lindsay testified he discovered six wounds on the back side of her head. He described one wound as “large” and “gaping” and the remaining wounds as smaller in size. He noted, however, that, with regard to all six of the wounds, the entire thickness of the scalp had been penetrated, and they tended to go down to the actual surface of the skull. He estimated a minimum number of six blows would have to have been inflicted in order to result in the wounds he described.

The pathologist further testified he observed four wounds on Christine Lindsay’s face. The wounds were smaller in size but, again, were deep and penetrated fairly close to the skull. He also stated the inner lining of her lip was torn apart and a considerable amount of tooth material was missing from her mouth. In addition, he observed bruising about her shoulder, back, chest, arms, elbows, and hand and knuckle regions.

The pathologist stated that, in examining the actual skull of Christine Lindsay, he found a transverse fracture which went clear across the base of her skull and also uncovered a depressed skull fracture, where a plate of the skull had become detached from the remainder of the skull and went into the superficial part of her brain. He said she had sustained brain injuries, including hemorrhaging.

The pathologist testified the chrome table leg found at the crime scene was compatible with inflicting several of the wounds he found on the back of Christine Lindsay’s head. He further stated considerable force was required to result in the wound immediately above the depressed skull fracture he found. He also said the broken radio was consistent with the injuries located on her face. He concluded Christine Lindsay died from the head injuries she received upon the impact of a blunt instrument of some type against her head.

Defendant had been charged with first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1).) At trial, the jury was instructed as to both first and second degree murder. The instruction with regard to second degree murder stated the jury should find him guilty of that offense if, after determining the factors for first degree murder are present, it concludes a preponderance of the evidence showed:

“ [Defendant, at the time he performed the acts which caused the death of Christine Lindsay, believed the circumstances to be such that they justified the deadly force which he used, but his belief that such circumstances existed was unreasonable or that the defendant, at the time he performed the acts which caused the death of Christine Lindsay, acted under a sudden and intense passion resulting from serious provocation by the deceased.”

The jury returned a verdict finding defendant guilty of the offense of second degree murder.

At the sentencing hearing, the State presented no evidence in aggravation, but asked the court to consider the evidence produced at trial. Defendant called several witnesses both at trial and at sentencing who testified defendant had a reputation for being a peaceful and law-abiding citizen and was a very conscientious worker.

In imposing a 19-year sentence for the offense of second degree murder, the court stated as follows:

“[T]he court having considered the evidence at trial, the presentence report, the evidence presented in aggravation and mitigation, the arguments of counsel and the sentencing alternatives together with the defendant’s right of allocution, and the court having regard for the nature and circumstances of the offense and the history and character of the defendant, finds that probation would deprecate the seriousness of the offense and [would be] inconsistent with the ends of justice. The court further finds that the offense committed was accompanied by brutal and heinous behavior indicative of wanton cruelty.”

The court also further stated it “ha[d] found that circumstances * * * exist[ed] to warrant the imposition of a sentence of extended term for which [he] ha[d] been sentenced to the Department of Corrections for a period of 19 years.”

In People v. Evans (1980), 90 Ill. App. 3d 707, 413 N.E.2d 441, aff’d (1981), 87 Ill. 2d 77, 429 N.E.2d 520, a trial court entered judgment on a jury verdict finding a defendant guilty of voluntary manslaughter and aggravated battery, and it imposed an extended-term sentence for the voluntary manslaughter offense because it found defendant’s acts had constituted wanton cruelty. This court vacated the extended-term sentence and remanded for resentencing.

The Illinois Supreme Court agreed with this court that defendant’s voluntary manslaughter offense was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. It further opined that “actions committed under a subjective belief, albeit unreasonable, that the actions were in self-defense do not constitute wanton cruelty.'” (Emphasis added.) (Evans, 87 Ill. 2d at 88, 429 N.E.2d at 525.) Thus, it concluded the trial court had erred in imposing an extended-term sentence for defendant’s voluntary manslaughter conviction.

The State here relies heavily upon the first district case of People v. Moore (1987), 159 Ill. App. 3d 1070, 513 N.E.2d 87. The evidence in Moore showed a defendant and two other men brutally and savagely beat a 14-year-old boy who had broken into the home of one of the men and had retreated to the basement in order to avoid their beating. Defendant was found to have killed the boy under an unreasonable belief that he was acting in self-defense and was convicted of voluntary manslaughter, among other offenses. The trial court imposed an extended-term sentence for the offense of voluntary manslaughter because it found his actions had been heinous and extremely and excessively brutal.

On appeal, that defendant contended it was inherently improper for a trial judge to impose an extended term for voluntary manslaughter. He relied upon Evans, in part, to support his contention. The first district rejected defendant’s argument, however, finding the Evans court did not so hold. Rather, it concluded the supreme court there found that defendant had not acted with wanton cruelty, and, therefore, an extended term was not appropriate under the circumstances. Because the first district determined Moore had clearly acted with savagery and unrelenting brutality, it found no error in the imposition of an extended-term sentence in that case.

While we interpret the Evans court to hold that an extended-term sentence cannot be imposed on a defendant convicted of voluntary manslaughter whose actions were committed under a subjective belief, albeit unreasonable, that his actions were in self-defense, we need not pass upon the propriety of Moore in order to decide the instant case. Here, the jury also was instructed it could return a guilty verdict for second degree murder if it found defendant had acted under a sudden and intense passion following serious provocation by his wife. Under the evidence presented, the jury could have made such a finding.

We agree with the third district decision in People v. Kalec (1982), 109 Ill. App. 3d 696, 440 N.E.2d 1254, that the holding in Evans should not be extended to a killing involving sudden and intense passion. Clearly, a murder performed by someone acting under such sudden and intense passion following provocation by the victim can be accompanied by brutal or heinous behavior indicative of wanton cruelty.

Here, the victim received repeated and severe blows to her head, face, and body and died from hemorrhaging to her brain. The defendant sustained minor injuries. We conclude under these circumstances defendant’s conduct was indicative of wanton cruelty, and the trial court properly imposed an extended-term sentence.

For the reasons stated, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

KNECHT, P.J., and McCULLOUGH, J., concur.