text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE MALAVE, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—3398
    Opinion filed May 28, 1992.
    Rehearing denied June 23,1992.

      Randolph N. Stone, Public Defender, of Chicago (Cheryl K. Lipton and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Jose Malave, was convicted of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(aXl)) following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for a term of 50 years.

Defendant appeals, contending he was denied a fair trial because: (1) the trial judge admitted into evidence certain hearsay statements, and (2) the prosecutor made inflammatory remarks during the State’s case and closing argument. Defendant also contends (3) the trial judge erred in determining the sentence.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. Defendant was indicted on three counts of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — l(aXl) through (aX3)), one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2), and one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A).

The State’s case at trial was essentially as follows. Humboldt Park is bordered by North Avenue, Division Street, California and Kedzie Avenues in Chicago. Humboldt Boulevard bisects the park. Two belligerent groups of street gangs occupy the park. The “People,” which includes the Latin Kings, occupies the west side of the park; the “Folks,” which includes the Latin Jivers and several other street gangs, occupies the east side of the park. Defendant was a member of the Latin Jivers, affiliated with the “Folks.” The victim, Jorge Sanchez, also known as Victor, was a member of the Latin Kings, affiliated with the “People.”

On the night of June 26, 1988, Nathan Iverson and Mario Munoz were together in Humboldt Park. They saw the victim, on the west side of Humboldt Boulevard, shouting gang slogans and curses at the “Folks” on the east side of the street. The “Folks” responded by shouting insults at the victim. Later that night, Munoz was in the west side of the park with the victim’s cousin Roberto. The victim approached them and borrowed Roberto’s bicycle. The victim rode the bicycle toward the boathouse on the east side of Humboldt Boulevard, where the “Folks” gathered.

The victim stood near the boathouse. A man, wearing black clothing, approached the victim from behind, tapped him on the shoulder, and shot the victim twice. The shooter ran from the scene; the victim began to run but fell to the ground. The victim died a short time later as the result of the gunshot wounds.

Chicago police officer Michael Conley and his partner were patrolling the area at approximately 7:45 p.m. that night. At that time they heard a police radio bulletin of a shooting in the park. They immediately went to the scene, where they found the victim bleeding from two bullet wounds. Onlookers shouted that the victim was a Latin King and gave the officers a tip that the shooter wore black clothing. The officers searched the area and saw defendant, dressed completely in black, riding a motorscooter. They stopped defendant and retrieved a witness from the crime scene to identify defendant as the shooter. However, the witness could not identify defendant, so the officers released him.

On June 28, 1988, Chicago police officer Clyde Raymond received an anonymous telephone tip that the shooter was “Primo J.” Raymond knew defendant as “Primo J.,” whom he had seen on many prior occasions.

On June 30, 1988, at approximately 1:30 a.m., Officer Raymond, with Chicago police officer Frank Vukonich and Sergeant Mingy, went to defendant’s home. They spoke with defendant and his mother. The officers asked defendant to accompany them to Area 5 police headquarters for questioning and defendant agreed. At the police station, after being informed of his Miranda rights, defendant at first stated that he did not know anything about the shooting.

Defendant was interviewed again at approximately 12:30 p.m. After again being informed of his Miranda rights, defendant confessed that he shot the victim. Defendant made an oral statement to Chicago police detective Richard Curley. Defendant’s statement is as follows. On the night of the shooting, several of defendant’s fellow gang members informed defendant that rival gang members were in his gang’s territory. Defendant told his companions to return to the rival gang and he would meet them there. Defendant then retrieved a loaded 380 automatic pistol.

When defendant met his companions, they were in a shouting match with some Latin Kings. One Latin King, who was the victim, stood off to one side of the group, near the boathouse. The victim was taunting defendant. Defendant then stalked the victim, approaching him from behind. When defendant finally made contact, he said something to the victim. The victim turned to face defendant, while at the same time reaching for his waist. Defendant then shot the victim, took the victim’s bicycle, fled from the crime scene, and hid the bicycle and the gun. Defendant then rode a motorscooter through the area.

At approximately 2:15 p.m., defendant repeated this statement to then Assistant State’s Attorney Delcine Thompson. Thompson and Curley then spoke with Louis Vargas, also known as “Pito,” who was another member of defendant’s gang. Vargas told Thompson and Curley that at no time did the victim have a gun.

Thompson and Curley then confronted defendant with Vargas’ statement. After again being informed of his Miranda rights, defendant told them that Vargas spoke truthfully. Defendant essentially repeated his statement made to Curley Defendant added that at no time did he actually see a gun on the victim’s person at the time of the shooting. In his signed, written statement, taken at approximately 6 p.m., defendant stated that he thought the victim had a pistol, but he did not actually see any.

Police retrieved the pistol where defendant said he hid it. The State presented evidence that the bullets removed from the victim’s body could have been fired from the pistol. The police department’s firearms examiner opined that the bullets were too mutilated to make an exact match. However, he also opined that “class characteristics” of the fired bullets were “consistent” with the bullets having been fired from the pistol.

The defense case was essentially that defendant acted in self-defense. When defendant made his 12:30 p.m. statement to Detective Curley, defendant stated that he saw the victim holding a “small, dark-colored gun” during their shouting match. Defendant believed that the victim was reaching for a gun at his waist while he turned to face defendant.

On cross-examination by the State, Detective Curley related the substance of Vargas’ statement for the first time during trial. Curley testified that Vargas told him and Thompson that at no time did the victim have a gun. Further, when confronted with Vargas’ statement, defendant told them that Vargas told the truth.

The jury convicted defendant of first-degree murder, and acquitted him of armed robbery and first-degree murder based on the commission of the armed robbery. At the sentencing hearing, the trial judge denied defendant’s post-trial motion. At the close of the hearing, the trial judge sentenced defendant to 50 years on one count of murder. (See People v. Hood (1989), 191 Ill. App. 3d 129, 134, 547 N.E.2d 637, 641.) Defendant appeals.

Opinion

I

A

Defendant first contends that the trial judge erred by admitting into evidence Vargas’ out-of-court statement, as told by Curley, that the victim did not have a gun at anytime. Defendant argues that Vargas’ out-of-court statement constituted hearsay and, therefore, was inadmissible. Defendant alternatively argues that the admission of the statement denied his constitutional right to confront the witnesses against him and that the statement was irrelevant to his claim of self-defense.

Hearsay is testimony in court or written evidence of an out-of-court statement, offered to establish the truth of the matter asserted therein and, thus, resting for its value upon the credibility of the out-of-court asserter. (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741.) However, an out-of-court statement not offered for the truth of the matter asserted is not hearsay. People v. Loggins (1985), 134 Ill. App. 3d 684, 692, 480 N.E.2d 1293,1299.

A statement used in a criminal prosecution to detail the course of a police investigation, not to prove the truth of the matter asserted, is not hearsay. (Loggins, 134 Ill. App. 3d at 692, 480 N.E.2d at 1299.) Such a statement is admissible if offered for the limited purpose of explaining why the police conducted their investigation as they did, or why they arrested defendant, or why they confronted defendant with their suspicions. (People v. Jones (1986), 140 Ill. App. 3d 660, 673, 488 N.E.2d 1363, 1372; People v. Jones (1983), 114 Ill. App. 3d 576, 589, 449 N.E.2d 547, 557-58.) The rationale of the rule is that a portrayal of the events in question lessens the need of the fact finder to speculate on the reasons for the officers’ subsequent actions. The rule thus serves the ends of justice. State v. Brooks (Mo. 1981), 618 S.W.2d 22, 25.

Applying these principles to the case at bar, we conclude that Vargas’ out-of-court statement was relevant and admissible non-hearsay. At the outset we note that defendant misreads the record. Defendant contends that both Detective Curley and then Assistant State’s Attorney Thompson related Vargas’ statement. However, the record shows that only Curley, testifying for the defense and during the State’s cross-examination, actually told what Vargas said. Thompson did not relate Vargas’ statement. Rather, she merely testified that she spoke with Vargas and then confronted defendant with Vargas’ statement. Therefore, there is no discernible hearsay problem with Thompson’s testimony. See People v. Bennett (1987), 159 Ill. App. 3d 172,180, 511N.E.2d 1340,1345.

Defendant contends Vargas’ statement was admitted “as positive evidence that [the victim] did not have a gun.” However, the record shows that Curley did not offer Vargas’ statement to prove that the victim did not have a gun. Rather, Curley related Vargas’ statement to explain why he and Thompson confronted defendant "with their suspicions. Thus, the evidence was relevant for that purpose and defendant’s constitutional right of confrontation was not violated. As we stated in People v. Matthews (1990), 205 Ill. App. 3d 371, 562 N.E.2d 1113:

“It is clear from the record that the testimony was being offered to describe the process and development of the investigation and the subsequent interrogations of the defendant while he was in custody. Because it was not offered for the truth of the matter asserted, the testimony is not inadmissible hearsay and its admission was not prejudicial error. [Citation.]” 205 Ill. App. 3d at 412, 562 N.E.2d at 1137-38.

B

Defendant also contends that the trial court erred by restricting his right of cross-examination. Defendant notes that the trial judge allowed Thompson to refer to Vargas’ statement and defendant’s reaction to Vargas’ statement. Defendant further notes, however, that the trial judge did not allow defendant to cross-examine Thompson regarding the substance of Vargas’ statement. Defendant argues that this was error.

It is true “that additional portions of a statement must be admitted when necessary to prevent the jury from receiving a misleading impression as to the nature of the statement.” (People v. Olinger (1986), 112 Ill. 2d 324, 337, 493 N.E.2d 579, 586, citing People v. Weaver (1982), 92 Ill. 2d 545, 556-57, 442 N.E.2d 255, 259.) However, “[a] defendant has no right to introduce portions of a statement which are not necessary to enable the jury to properly evaluate the portions introduced by the State.” Olinger, 112 Ill. 2d at 338, 493 N.E.2d at 586.

In the case at bar, defendant does not argue that Thompson’s testimony was misleading. Rather, defendant merely makes the blanket assertion that “once a witness testifies to a part of a conversation, the opposing party has a right to bring out all of the conversation on cross-examination.” Olinger holds otherwise. Since defendant does not argue that Thompson’s testimony was misleading, we find no error in the trial judge’s ruling.

II

Defendant next contends he was denied a fair trial due to the prosecutor’s inflammatory remarks during the State’s case and closing argument.

A

Defendant notes that at the beginning of the direct examinations of Maria Martinez, Nathan Iverson, and Mario Munoz, the prosecutor asked each of them: “Without telling us your exact address, do you live in the city of Chicago?” or “Without telling us your exact address, what area of the city do you live in, Sir?” Defendant also notes that the prosecutor asked Iverson, “Without telling us what school you go to, what grade are you in?” Defendant argues that these remarks “were inflammatory and caused the defendant substantial prejudice.”

However, defendant failed both to object to this questioning at trial and to include the issue in his post-trial motion; thus, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) After reviewing the record, we further conclude that this issue does not warrant our consideration under the plain error doctrine of Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). See People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093.

B

Defendant contends he was denied a fair trial also because the prosecutor made improper and prejudicial remarks during closing argument. A prosecutor has great latitude in presenting his or her closing argument. A reviewing court is reluctant to set aside a verdict based on remarks made during closing argument and does so only where the remarks are clearly prejudicial. In determining whether the remarks are prejudicial, a court must refer to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. (People v. Franklin (1976), 42 Ill. App. 3d 408, 421, 355 N.E.2d 634, 645.) Also, the trial court is in a better position than a reviewing court to determine the prejudicial effect of a remark made during closing argument. Absent a clear abuse of discretion, its ruling should be upheld. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327.

The record shows that after the defendant objected to each of the prosecutor’s four allegedly improper remarks, the trial judge instructed the jury that closing arguments are not evidence and any argument made that is not based on the evidence should be disregarded. The trial judge also gave this admonition immediately prior to closing argument and included the admonition in his written instructions to the jury. We must presume that the jurors followed the trial judge’s instructions. (See People v. Jackson (1986), 145 Ill. App. 3d 626, 642, 495 N.E.2d 1207, 1220.) Thus, these errors, if any, were cured. (People v. El (1980), 83 Ill. App. 3d 31, 41, 403 N.E.2d 547, 555.) After reviewing the record, we hold that none of the prosecutor’s remarks, considered individually or cumulatively, denied defendant a fair trial.

Ill

Defendant lastly claims that the trial judge exceeded his discretion in sentencing him. Defendant argues that “the trial judge improperly considered the death of the victim as an aggravating factor.” Defendant argues, therefore, that the trial judge exceeded his discretion, and that this requires us to vacate his sentence.

A sentencing decision is a matter of judicial discretion and, so long as the sentence is within the statutory limits, we hesitate to exercise our power to reduce it absent a finding that the trial court exceeded its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) Following a murder conviction, it is improper for a sentencing court to consider the victim’s death as an aggravating factor because death is implicit in the offense and the legislature took death into account when it established the sentencing range for the crime. However, it is settled that a trial judge’s observation that a defendant murdered someone, or the judge’s acknowledgement that the victim died, does not establish that the judge improperly considered death as an aggravating factor. People v. Verser (1990), 200 Ill. App. 3d 613, 620, 558 N.E.2d 226, 231 (and cases cited therein).

After closely reviewing the record, we cannot say that the trial judge exceeded his discretion. Defendant’s 50-year sentence was within the statutory range. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— l(aXl)(a).) It is true that the trial judge noted the fact that defendant killed the victim. However, the record also shows that the trial judge considered many different factors before imposing sentence. Our observation in People v. Barney (1982), 111 Ill. App. 3d 669, 444 N.E.2d 518, applies here:

“Defendant assumes that the trial judge imposed a longer sentence than he otherwise would have because his statement referred to [the victim’s] death. We think this assumption is unwarranted, since other factors that reasonably could be considered aggravating factors also were specified ***.
*** It is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error.” (111 Ill. App. 3d at 679, 444 N.E.2d at 525.)

We hold that defendant’s 50-year prison sentence was well within the discretion of the trial court.

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

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    SEEGERS GRAIN COMPANY, INC., Plaintiff-Appellant and Counterdefendant-Appellant, v. KANSAS CITY MILLWRIGHT COMPANY et al., Defendants-Appellees (United States Fidelity and Guaranty Company, Counterplaintiff-Appellee; Kansas City Millwright Company et al., Counterdefendants).
    First District (4th Division)
    No. 1—89—3524
    Opinion filed May 28,1992.
    Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert P. Sheridan, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, of Chicago (Nancy Jo Arnold, Henry J. Marquard, and David T. Nani, of counsel), for appellee United States Fidelity & Guaranty Company.
   JUSTICE JOHNSON

delivered the opinion of the court:

Seegers Grain Company, Inc. (Seegers), plaintiff and counter-defendant, appeals from an order of the circuit court of Cook County granting a motion for summary judgment for defendants Kansas City-Millwright Company (K.C. Millwright), James O’Dell (O’Dell) and United States Fidelity & Guaranty Company (USF&G). On appeal, plaintiff contends (1) the trial court erred in finding that there was no genuine issue of fact as to whether defendants’ insurance policies protected against losses incurred by the collapse of a grain storage tank and (2) the trial court abused its discretion in denying plaintiff leave to file amended pleadings.

We affirm.

This appeal arises from the collapse of a grain storage facility which occurred on January 10, 1978. Seegers contracted with O’Dell, president of K.C. Millwright, to build the grain storage facility in May 1976. K.C. Millwright completed construction of the storage tank in October 1976. After the storage tank collapsed in 1978, Seegers brought an action against K.C. Millwright for breach of contract and negligence in the design and construction of the tank. The case, which was tried before a jury, resulted in a general verdict against K.C. Millwright in the amount of $2.2 million.

Prior to the erection of the storage tank, K.C. Millwright provided Seegers with a certificate of insurance stating that it had comprehensive general liability coverage from USF&G. The policy period shown on the certificate of insurance was April 1, 1976, through April 1, 1977. Seegers brought a declaratory judgment action against USF&G seeking coverage under any and all policies in effect at the time the storage tank was being built and at the time of the collapse. USF&G filed a countercomplaint seeking a declaration that it had no liability to provide defense or coverage to K.C. Millwright under its policies.

USF&G and O’Dell were unable to supply the original two primary general liability policies which provided coverage for O’Dell and K.C. Millwright. USF&G did, however, present certified copies of the applicable policies, which were reconstructed from underwriting files. Policy number 962110, in effect from April 1, 1976, through April 1, 1977, was applicable during the period the storage tank was under construction.

The primary comprehensive general liability policy in effect for K.C. Millwright while the tank was being built included completed operations for property damage. The property damage covered under completed operations coverage was expressly defined in the policy to include only property damage which “occurs during the policy period.”

Edward Halpin testified that he was the insurance agent through whom O’Dell and K.C. Millwright purchased general liability insurance for 22 years. Halpin testified that in 1976 a storage tank that K.C. Millwright built for a client in Kokomo, Indiana, had collapsed and that USF&G paid out in settlement on that claim. He stated that he received a letter from a USF&G underwriter, dated February 4, 1977, stating that due to claim experience, K.C. Millwright would no longer receive coverage after its policy expired on April 1, 1977. He further testified that shortly after the Kokomo claim he advised O’Dell that USF&G would not continue to insure K.C. Millwright after the policy expired on April 1,1977.

Halpin further testified that USF&G agreed to extend the policy for one month, to May 1, 1977, and then another month, to June 1, 1977, while he sought to locate another insurer. He testified that, ultimately, a compromise was worked out with USF&G at the end of the policy period. He stated that USF&G would not provide completed operations coverage for the tank operation but would renew K.C. Millwright’s other coverages, including completed operations for the Millwright operation. He stated that the parties agreed that there would be no return on the premium and that the renewal premium was based on K.C. Millwright sales excluding tank erection. He further stated that a renewal policy, number 69258, was issued by USF&G for the period April 1, 1977, through April 1, 1978, with an endorsement expressly excluding coverage for tank erection under the completed operation portion of the policy. This policy was applicable during the period the storage tank collapsed.

O’Dell testified during his deposition that he was aware that he had no coverage for completed operations for tank erections. He further stated that he had discussed other alternatives for insurance protection with USF&G employee James Dinwiddie. He stated that he and Dinwiddie discussed the possibility of USF&G creating an insurance pool.

In ruling on the motion for summary judgment, the trial court held that there was no coverage for this occurrence under either set of policies. The court found that policy number 962110, in effect from April 1, 1976, to April 1, 1977, had expired at the time of the occurrence. The court also found that policy number 69258, in effect at the time of the collapse, excluded completed operations coverage for tank erection. The court concluded that the policy contained an endorsement excluding completed operations coverage for tank erection. The court stated that it based its finding, in part, on the testimony of the insured, O’Dell, who made it clear that he understood coverage for tank erection was excluded under the policies.

On appeal, plaintiff contends that the trial court erred in granting USF&G’s motion for summary judgment because there is an issue of fact as to whether the renewed insurance policy protected against losses incurred by the storage tank collapse.

A motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).

In ruling on a motion for summary judgment, the evidence must be construed strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) However, “the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact.” (Schnering v. Midlothian Park District (1991), 219 Ill. App. 3d 664, 666.) “[T]he opponent of the motion cannot rely simply on his complaint or answer to raise an issue of fact when the movant ‘supplies facts which, if not contradicted, would entitle such a party to a judgment as a matter of law.’ ” (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, quoting Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380.) Lastly, the trial court’s decision to grant a motion for summary judgment will not be reversed absent an abuse of discretion. Schnering, 219 Ill. App. 3d at 666.

Upon review, we do not believe plaintiff has come forward with evidentiary material that establishes a genuine issue of fact. Plaintiff argues that USF&G failed to explain why the original insurance policies are unavailable and that there is no basis in the record for finding that the reconstructed policies are accurate. We disagree.

William Cipra, a USF&G claims supervisor, testified in his deposition that the customary practice is to send the original policy to the insured at the time the policy is issued. The insurer, in this case USF&G, retained a declaration sheet, which references the policy forms that are a part of the policy at the time it is issued. He stated that a certified copy of the policy is one which has been put together by the insurer in a packet that represents the policy as issued to the insured. Cipra testified that he requested USF&G employees Michael McEwen and Kathy Wise to prepare certified copies of the two primary policies that had been issued to K.C. Millwright.

McEwen testified that after Wise located the files he checked each item against the declaration sheet and then signed the certification of the policies. Wise testified in her deposition that USF&G’s policy files contained a copy of the declaration sheet and copies of any endorsements that bore typing. She stated that she put everything together and affixed the certification stamp for McE wen’s signature. She further testified that she had followed this same procedure to prepare certified copies of other policies on many previous occasions.

The trial court found that USF&G presented testimony that the policies were reconstructed in accordance with customary insurance industry practice. The trial court stated that the reconstructed policies were put together as best as possible from USF&G’s internal manual volumes in accordance with customary insurance industry practice. The court further stated that it was moving forward on the reconstructed policies without any likelihood that different policies would emerge at a later time.

Plaintiff further argues that there is a presumption that USF&G fabricated new policies with terms favorable to itself and that the testimony by USF&G employees is insufficient to establish the verity of the reconstructed policies. However, allegations which are unsupported by the record “do not raise a question of fact where affidavits and depositions in support of a motion for summary judgment contain evidentiary facts to the contrary.” Pearson v. Partee (1991), 218 Ill. App. 3d 178, 183.

In this case, plaintiff has not put forth any evidence to contradict testimony that the certified copies of the policies are what they purport to be, nor is there any evidence in the record to refute the fact that the tank exclusion endorsements were a part of the USF&G policy file. We find that plaintiff’s allegations are unsupported by the record and are, therefore, insufficient to establish a material issue of fact.

Plaintiff raises a series of questions which attack the credibility of the reconstructed policies and which tend to disprove the trial court’s finding that the reconstructed policies were compiled in conformance with industry standards. For example, plaintiff contends that since there was not a reduction in the premium K.C. Millwright paid when tank erection operations were excluded from the renewal policy, the policy must have been reconstructed with terms favorable to USF&G. Plaintiff also contends that since other K.C. Millwright customers had received a certificate of insurance showing completed operations coverage while the renewal policy was in effect, it also must have been covered.

First, these contentions are addressed in the record. Halpin testified that the parties agreed there would be no return of premium on the renewal policy. As for the certificate of insurance, it expressly states that the referenced coverage is “as per policy conditions” and therefore would not apply to plaintiffs policy. Second, even if plaintiff’s contentions were not addressed in the record, the trial court’s finding that there was no genuine issue of fact was based on evidence in the record and not on plaintiff’s unsubstantiated allegations. Bearing in mind that allegations that a triable issue of fact exists do not create such an issue (Cincinnati Insurance Co. v. Argubright (1986), 151 Ill. App. 3d 324, 329), we find that plaintiff’s allegations do not rise to the level of evidentiary facts sufficient to preclude summary judgment.

We also believe that USF&G has supplied facts which would entitle it to judgment as a matter of law. The trial court reviewed sworn affidavits and depositions from several witnesses who testified that the policies were reconstructed in conformance with industry standards. The reconstructed renewal policy, by its expressed terms, excludes claims for property damage arising out of completed tank erection operations performed by K.C. Millwright. In addition, O’Dell, president of the insured company, K.C. Millwright, testified that he knew when the renewal policy was issued that it did not include coverage for completed operations for tank erection. O’Dell stated that “Mr. Dinwiddie of USF&G drove it through my head that we weren’t going to have coverage.” Edward Halpin, the insurance broker through whom O’Dell purchased insurance for 22 years, testified that USF&G did not provide completed operations coverage for tank operations.

We find that the trial court did not err in finding that there was no genuine issue of fact as to whether the reconstructed renewal policy protected against losses incurred by the collapse of the grain storage tank.

We also find that the trial court did not err in finding that policy number 962110, in effect from April 1, 1976, through April 1, 1977, had expired at the time of the grain storage collapse. The record amply supports a finding that policy number 962110 was an occurrence policy, which means it applied to cover damage that occurred during the policy period. The trial court found that since no occurrence was shown to have taken place while the first policy was in effect, there could be no coverage for events taking place after the policy terminated. Plaintiff’s contentions that the expired policy is applicable because. K.C. Millwright’s negligent acts in erecting the tank were committed during the term of the policy have been rejected by the Illinois courts. See Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285; International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361.

Plaintiff also contends that the trial court erred in not allowing it to file an amended complaint before the hearing on USF&G’s motion for summary judgment.

“Whether to allow amendment of pleadings is within the [sound] discretion of the trial court, whose determination may not be disturbed on review in the absence of abuse, upon consideration of the timeliness of the amendment and whether the opponent was prejudiced or surprised thereby.” (Carlisle v. Harp (1990), 200 Ill. App. 3d 908, 915.) Further, a party does not have “an absolute right to amend an answer and it is not favored after trial commences.” Carlisle, 200 Ill. App. 3d at 915.

The complaint alleged that USF&G should be estopped from asserting the exclusion for completed operations in effect at the time of the occurrence because it had relied on the certificate of insurance to determine that it did not need to insure the property itself. In order to establish estoppel against an insurer, a party must prove that he was misled by an act or statement of the insurer, that he relied on this conduct or representation, that such reliance was reasonable, and that he was prejudiced thereby. See Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 304.

The trial court found that the certificate of insurance which plaintiff was given showed on its face that the coverage expired on April 1, 1977. The court found that since the scope of the coverage had long expired by the time the storage bin collapsed, it was unreasonable for plaintiff to rely on the certificate of insurance to provide coverage. The court also found that estoppel could not arise against USF&G for the alleged failure to notify plaintiff of coverage exclusions.

We agree with the trial court that it was unreasonable for plaintiff to rely on the certificate of insurance to provide coverage beyond the scope of its coverage. We therefore find that the trial court did not abuse its discretion in not permitting plaintiff to file an amended complaint alleging that USF&G was estopped to deny it coverage.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE EGAN

text:
      In re MARRIAGE OF CELESTE DANKO, Petitioner-Appellee, and RONALD DANKO, Respondent-Appellant.
    First District (6th Division)
    No. 1—91—0637
    Opinion filed May 29,1992.
    Larry S. Kajfes, Ltd., of Chicago, for appellant.
    John O’Donnell, of Buikema, Hiskes, Dillner, O’Donnell & Marovich, Ltd., of Orland Park, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The respondent, Ronald Danko, appeals from an order which vacated part of a default judgment for dissolution of marriage which had been entered pursuant to his counterpetition for dissolution of marriage. The principal issue is whether the trial judge erred when she based the vacature order on the alleged ineffective assistance of one of the petitioner’s attorneys.

The petitioner, Celeste Danko, filed a petition for dissolution of marriage on October 2, 1986, to end her 17-year marriage to Ronald Danko. The Dankos had three children and assembled a marital estate, composed primarily of the marital residence.

After the dissolution petition had been filed, the parties frequently appeared in court for failure to comply with court orders. Those instances of noncompliance included the petitioner’s failure to follow the court’s visitation orders; and the respondent’s failure to pay child support, to follow the court’s guidelines for temporary visitation and for harassing behavior. Each party had been held in contempt more than once for failure to comply with the court’s orders.

Each party retained a number of attorneys; the respondent has been represented by three different law firms, and the petitioner has been represented by four.

The petitioner’s second attorney was granted permission to withdraw as counsel on November 10, 1988. On December 12, she filed a petition for attorney fees. The next day, the respondent filed a counterpetition for dissolution of marriage.

On February 6, 1989, the respondent moved for a default judgment after the petitioner failed to respond to his counterpetition for dissolution of marriage. The petitioner did not appear on February 6, 1989, although she was served with notice of the motion for a default judgment. It was established at a later hearing that she had contacted the respondent’s attorney by telephone before the hearing, had told him that she didn’t “have time to come down” and that if she did not like the decision, she would get an attorney “afterwards.”

After the respondent’s counsel presented his case, the trial judge asked for a transcript of the hearing to assist her in making a “thoughtful distribution” of marital assets. On February 15, the judge entered a default judgment for attorney fees in favor of the petitioner’s second attorney.

On August 29, 1989, the judge entered a default judgment on the respondent’s counterpetition for dissolution of marriage. Sometime before the August hearing, the petitioner retained a third law firm. The petitioner’s third attorney was present at the hearing on August 29 but did not speak at the hearing and did not enter a formal appearance until August 31. When the judge entered the default judgment on August 29, she expressly reserved the issue of child support. On August 29, the judge entered an order barring the petitioner from maintenance on the basis of the respondent’s statement that the petitioner was employed and he was not.

The trial judge entered her written judgment in favor of the respondent’s counterpetition on December 19, 1989. That judgment referred to the February and August proceedings. The order dissolved the marriage, granted custody of the three minor children to the petitioner, provided for visitation rights of the respondent, distributed the marital assets to the parties and reserved the question of child support because the respondent was not employed at the time. The order also provided that the respondent was to pay the petitioner 32% of any income he might receive and that he was to report to the petitioner the workers’ compensation award he would receive for his pending claim. The court noted that the respondent had proved all the elements of his counterpetition. The default judgment was apparently approved by the petitioner’s third attorney. In any event, her third attorney never moved to vacate the default judgment.

After the entry of the default judgment, problems persisted as the petitioner allegedly continued to limit the respondent’s visitation with the children. As a result, the respondent filed an emergency petition to show cause on January 2, 1990, which alleged that the respondent had been denied his visitation rights. On January 4, 1990, the court found the petitioner in contempt for failure to comply with its visitation order. On January 31, the judge held a hearing on the emergency petition to show cause where both parties called witnesses and presented arguments on whether the petitioner was in violation of the court’s visitation order.

The judge directed that an order be drawn committing the petitioner to jail but stayed that order so long as the petitioner continued to purge herself of contempt by delivering the children to the respondent.

On February 23, 1990, the petitioner’s fourth attorney replaced the petitioner’s third attorney. The petitioner’s new attorney immediately moved to appoint a guardian ad litem for the children and filed a motion to purge the contempt order of January 4,1990.

On March 8, 1990, the petitioner’s fourth attorney moved to reopen the proofs to purge the contempt orders of January 4, 1990, and February 9, 1990, under section 2 — 1203 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203.) Count II of the petition was based on the alleged inadequate assistance of counsel that the petitioner received at her contempt hearing on January 31, 1990. The petitioner alleged her representation was inadequate because at the contempt hearing her former attorney failed to call witnesses on her behalf and failed to present evidence of physical threats she received, of the children’s mental state or of a protection order which had been entered against the respondent.

On April 19, 1990, the petitioner filed a motion to vacate part of the judgment for the dissolution of marriage. The motion alleged that the division of marital assets was unfair in requiring the petitioner to sell the marital residence before the outcome of the respondent’s pending workers’ compensation claim was known. The specific prayer for relief sought only to delay the sale of the house until the respondent’s workers’ compensation claim was final. The prayer for relief, however, did include a general prayer for relief which asked for “such other and further relief as this Court deems equitable and just.” The motion to vacate was not based on any alleged ineffective assistance of counsel.

On August 17, 1990, the judge heard arguments on the petitioner’s motion to reopen the proofs. In attacking the petitioner’s motion to reopen the proofs, the respondent contended that the motion was improper because no new facts were alleged. The trial judge allowed the pleadings to stand, stating that even though the 30-day limit under section 2 — 1203 had passed, the striking of the pleadings would not be in the interests of justice or the children.

The judge allowed the proofs to be reopened. She stated that the petitioner should not be expected to have the legal knowledge which would allow her to detect the incompetence of her attorney. Implicit in her ruling is a finding that the petitioner’s attorney was incompetent on January 31,1989.

The court then addressed the respondent’s motion to vacate the default judgment. The petitioner's attorney stated that the relief sought through the motion “deal[t] mostly with the house” and conceded that the petitioner might have some difficulty proving due diligence.

The respondent argued that the motion was actually a motion to modify the judgment. After the judge rejected this argument and stated that this was clearly a motion to vacate under section 2 — 1401, the respondent argued that the petitioner failed to satisfy the requirements of section 2 — 1401 because there was no meritorious defense or allegation of due diligence made in the petitioner’s motion.

The judge then vacated the entire default judgment, except for the portion dissolving the marriage. In doing so she said that the petitioner was represented by at least one attorney who failed “to do things that were normally and customarily appropriate in *** domestic relation proceedings.” The judge again noted that the petitioner should not be required to have the knowledge of an attorney. She found that due diligence was present and appeared to conclude that the inadequate assistance of counsel was sufficient to satisfy the meritorious defense requirement of section 2 — 1401. The judge recognized that she had vacated the entire judgment sua sponte; she said that it was impossible to vacate only a portion of the default judgment without considering all the factors involved.

On February 5, 1991, the judge heard arguments on the respondent’s motion to reconsider. In addition to the arguments the respondent had previously raised, the respondent also alleged that the default judgment should not have been vacated because no evidentiary hearing was held on the petitioner’s section 2 — 1401 petition. The respondent contended that as the value of the house and the effectiveness of counsel were in dispute, it was incumbent on the petitioner to present a prima facie case. Presentation of a prima facie case, needless to say, would require a hearing.

The judge denied the respondent’s motion for reconsideration because, she said, reinstating the default judgment would be unjust. In rejecting the respondent’s claim that an evidentiary hearing was required, the judge again commented on the gross ineffectiveness of the petitioner’s prior counsel; the judge noted that she had a right to take judicial notice of proceedings before her, which would include the question of the effectiveness of counsel.

It has been repeatedly held that ineffective assistance of counsel is not a ground for relief under section 2 — 1401 of the Code of Civil Procedure or its predecessor, section 72 of the Civil Practice Act. (Gruss v. Beverley (1990), 201 Ill. App. 3d 502, 559 N.E.2d 135; Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 393 N.E.2d 707; Bartolini v. Popovitz (1969), 108 Ill. App. 2d 89, 246 N.E.2d 834; Antczak v. Antczak (1965), 61 Ill. App. 2d 404, 209 N.E.2d 838.) There may be instances where the rule should be relaxed; for example, for the protection of a minor’s interest. (See, e.g., People ex rel. Franks v. Franks (1970), 126 Ill. App. 2d 51, 261 N.E.2d 502.) But this case does not provide such an instance. The court reserved the question of child support; the respondent was ordered to report to the petitioner any income he might receive and to pay her 32% of the income. The order also required the respondent to inform the petitioner of any workers’ compensation award he might receive. The judge’s retention of jurisdiction over the rights of the children and the judge’s continuing power to enter appropriate orders were sufficient to safeguard the interests of the children without the order she ultimately entered vacating everything but the dissolution of marriage.

The judge relied on Rodriguez v. Owaynat (1985), 137 Ill. App. 3d 1017, 485 N.E.2d 438. That case is factually distinct from this case in the following ways: (1) the pro se litigant actually appeared in court, but did not understand that he had to present evidence; (2) after the default was entered, the pro se litigant promptly retained an attorney who filed a motion to vacate under section 2 — 1203; and (3) most importantly, the Rodriguez litigant had a meritorious defense v/hich was not based on his own or his counsel’s incompetence. We conclude, therefore, that the judge erred in granting the petitioner’s motion to vacate part of the judgment.

In the case before us, the motion to vacate part of the judgment did not allege ineffectiveness of counsel. The judge raised ineffectiveness sua sponte; she said that a hearing was not required because she could take judicial notice of the ineffectiveness in the proceedings before her. In the recent case of People v. Speight (1991), 222 Ill. App. 3d 766, 584 N.E.2d 392, the appellate court recognized that a trial judge may take judicial notice sua sponte on “rare occasions” but cautioned that the trial judge should insure that “such notice does not amount to advocacy for either party.” (222 Ill. App. 3d at 771.) The court concluded as follows:

“While we hold that a trial judge in rare instances may take sua sponte judicial notice of facts, the judge must make clear during the course of the trial, and not after the evidence is closed, what facts and sources are included in the sua sponte notice. The concept of fair play requires that all parties to an action be given a fair opportunity to rebut any evidence which might be damaging to their position. [Citation.] A party has the same right to rebut evidence admitted by sua sponte judicial notice as it does to rebut evidence introduced by the opposing party. [Citations.]” 222 Ill. App. 3d at 772.

We are unable to determine what facts the judge judicially noticed which would establish that the petitioner’s counsel had been ineffective. The respondent, therefore, could not rebut what was not in the record. We believe that, even if ineffective assistance of counsel could be a ground for relief under section 2 — 1401, the trial judge erred in failing to identify which facts she was judicially noticing.

For these reasons, the judgment of the circuit court is reversed.

Judgment reversed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE HARTMAN

text:
    NATIONAL UNION FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. GLENVIEW PARK DISTRICT, Defendant-Appellant (National Surety Corporation, Plaintiff; Patricia A. Claussen, Indiv. and as Guardian of the Estate of Frederick E. Claussen, Defendant).—NATIONAL SURETY CORPORATION, Plaintiff-Appellant, v. GLENVIEW PARK DISTRICT, Defendant-Appellee (National Union Fire Insurance Company, Plaintiff; Patricia A. Claussen, Indiv. and as Guardian of the Estate of Frederick E. Claussen, Defendant).
    First District (2nd Division)
    Nos. 1—90—3505, 1—90—3509 cons.
    Opinion filed June 2,1992.

      Ancel, Glink, Diamond & Cope, P.C., of Chicago (Thomas G. DiCianni and Jennifer A. Pritz, of counsel), for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Andrew G. Witik, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This consolidated appeal emanates from the same civil suit. In No. 1 — 90—3505, Glenview Park District (Glenview) appeals the grant of summary judgment in favor of National Union Fire Insurance Company (National Union) and the denial of its cross-motion for summary judgment. In No. 1 — 90—3509, National Surety Corporation (National Surety) appeals the denial of its motion for summary judgment against Glenview and the granting of summary judgment in favor of Glenview on Glenview’s cross-motion. The issues presented on appeal are whether (1) the provision in National Union’s primary policy excluding coverage for negligence of an additional insured was void and unenforceable; (2) the omission of the negligence exclusion in the certificate of insurance precluded its application; (3) the negligence exclusion denied coverage to the additional insured for a violation of the Illinois Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.y, (4) Glenview was an “insured” under National Surety’s excess and umbrella liability policy; and (5) National Surety’s policy “dropped down” to provide coverage to Glenview in the absence of primary coverage.

On March 11, 1988, National Decorating Service, Inc. (National Decorating), entered into a written contract with Glenview to refurbish an ice rink. The contract required that National Decorating maintain a policy of public liability insurance with limits of not less than $1 million per person and per occurrence and which specifically named Glenview as an additional insured.

National Union issued an insurance policy to National Decorating as the named insured, which provided for comprehensive general liability insurance on a primary basis with effective dates from August 31, 1987, to August 31, 1988: The limits of liability were $1 million per occurrence and in the aggregate.

National Surety also issued an insurance policy to National Decorating as the named insured which purportedly provided excess and umbrella liability coverage for the same period. National Surety’s policy specified a limit of $2 million per occurrence and in the aggregate.

On May 24, 1988, Frederick Claussen, an employee of National Decorating, fell from the scaffold upon which he was working and sustained injuries. Patricia Claussen (Claussen) was appointed as his legal guardian and filed suit in the circuit court of Cook County against Glenview seeking recovery for his injuries (Claussen action). The three-count complaint alleged a violation of the Act and negligence.

On April 26, 1989, National Union filed a declaratory judgment action against Glenview and Claussen seeking a determination that it was not obligated to defend or indemnify Glenview under its primary policy. National Union alleged that the terms of the primary policy excluded coverage for damages arising from the negligence of Glenview, an “additional insured.” Subsequently, on motion, the complaint was amended to include National Surety as an additional plaintiff. National Surety alleged that it also had no duty to indemnify because Glenview was not an “insured” as defined by its excess and umbrella liability policy.

On July 19, 1990, National Surety and National Union filed a joint motion for summary judgment and supporting memoranda. On July 24, 1990, Glenview filed a motion to stay the declaratory judgment proceedings pending a decision in the Claussen action and later filed a cross-motion for summary judgment against National Union and National Surety.

The circuit court granted National Union’s motion for summary judgment, finding that the primary policy did not provide Glenview, as the additional insured, coverage for any damage. Further, the court found that National Surety’s policy “dropped down” to provide coverage to Glenview and, therefore, National Surety’s motion for summary judgment was denied. Glenview and National Surety each appeal the denial of their respective motions for summary judgment and the grant of summary judgment to their opponents.

I

In case No. 1 — 90—3505, Glenview identifies circuit court error in granting summary judgment to National Union because the policy’s negligence exclusion was void and unenforceable. The provision at issue reads:

“The Persons Insured provision of this policy is amended to include as an Insured any Persons or organization whom the Named Insured has agreed by contract, either oral or written, prior to loss, to include as an Insured with respect to operations performed by or on behalf of the Named Insured. Such Insureds included by contract shall hereinafter be referred to as Additional Insureds, and the insurance afforded in paragraph A above shall not apply to damages arising out of the negligence of the Additional Insured(s) ***.” (Emphasis added.)

In interpreting an insurance policy, the court’s primary concern is to effectuate the intent of the parties as expressed by the contract. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 255, 430 N.E.2d 641.) An insured’s potential liability, for purposes of defense and indemnity coverage, is measured by the allegations of the underlying complaint; a liability insurer is obligated to defend an action brought against a putative insured if the complaint sets forth allegations that bring the claim within or potentially within the coverage of the policy. (Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 152-53, 466 N.E.2d 1091 (Maryland Casualty); Casualty Insurance Co. v. North-brook Property & Casualty Insurance Co. (1986), 150 Ill. App. 3d 472, 474, 501 N.E.2d 812 (Casualty Insurance).) When attempting to limit liability, the insurer must show that the claim falls within the exclusion; exclusionary provisions, therefore, are applied only if their terms are clear, definite, and explicit. Maryland Casualty, 126 Ill. App. 3d at 153; Moore, 103 Ill. App. 3d at 255-56.

Although the negligence exclusion refers to “paragraph A above,” there is no designated “paragraph A” within the relevant endorsement or anywhere else in the policy. In construing the policy as a whole, however, the faulty designation is not fatal to the provision’s effect, but logically, albeit awkwardly, refers to the immediately preceding paragraph.

Glenview urges this court to follow the reasoning and holding of Casualty Insurance. There, a subcontractor in a construction project obtained a general liability policy from Casualty Insurance which named the general contractor as an additional insured. The subcontractor’s employee, injured at the jobsite, brought suit against the general contractor and others, alleging violations of the Act. The policy provided that the general contractor was an additional insured “but only with respect to liability arising out of operations performed for the additional insured by the named insured.” (Casualty Insurance, 150 Ill. App. 3d at 474.) This court held that the language employed in the policy required Casualty Insurance to defend and indemnify the general contractor, since there was no specific reference in the endorsement necessitating the fault of the subcontractor, which Casualty Insurance could have done easily had it so intended. Casualty Insurance, 150 Ill. App. 3d at 476.

More analogous is Consolidation Coal Co. v. Liberty Mutual Insurance Co. (W.D. Pa. 1976), 406 F. Supp. 1292 (Consolidation Coal), which was distinguished in Casualty Insurance. In that case, the additional insured endorsement provided that Consolidation Coal was an additional insured, “but only with respect to acts or omissions of the named insured in connection with the named insured’s operations at the applicable location.” {Consolidation Coal, 406 F. Supp. at 1296.) Consolidation Coal was held to be an additional insured under the policy only when the negligent acts or omissions of the named insured directly caused Consolidation Coal’s loss. Consolidation Coal, 406 F. Supp. at 1299.

Similarly, the endorsement in this case specifically limited Glenview’s coverage to those situations in which the negligent acts or omissions of National Decorating had been established. The provision did not render the policy meaningless as to Glenview, but merely qualified the circumstances of its application. (See, e.g., Harbor Insurance Co. v. Lewis (E.D. Pa. 1983), 562 F. Supp. 800, 802-06; First Insurance Co. v. State (1983), 66 Haw. 413, 423-25, 665 P.2d 648, 655-56.) The language of the negligence exclusion is susceptible to a single reasonable interpretation and is not ambiguous, as Glenview argues. Contract terms are not ambiguous simply because parties do not agree on their meaning. (Hanover Insurance Co. v. Showalter (1990), 204 Ill. App. 3d 263, 266, 561 N.E.2d 1230.) When the language of an insurance policy is clear and unambiguous, it will be applied as written. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 371, 522 N.E.2d 758.) Further, the disputed provision does not violate public policy, and Glenview offers no authority to support its allegation to that effect. The National Union negligence exclusion is neither void nor unenforceable.

Summary judgment is proper when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Construction of an insurance policy is a matter of law to be determined by the court. (Hartford Insurance Co. v. Jackson (1990), 206 Ill. App. 3d 465, 469, 564 N.E.2d 906; Maryland Casualty, 126 Ill. App. 3d at 155.) The circuit court did not err in granting summary judgment to National Union on this issue.

II

Glenview next argues that its coverage as an additional insured derived not from the policy, but from the certificate of insurance. Because the certificate did not contain the negligence exclusion, Glen-view maintains, that exclusion did not apply to it.

This issue was addressed recently in Pekin Insurance Co. v. American Country Insurance Co. (1991), 213 Ill. App. 3d 543, 572 N.E.2d 1112. A certificate of insurance issued to the general contractor by the subcontractor’s insurer identified the subcontractor and general contractor as named and additional insured, respectively, and listed the effective policy numbers and dates of coverage. The certificate also contained the following statements, which are identical to the language in the certificate before us:

“ ‘THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
* * *
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL OF THE TERMS, EXCLUSIONS, AND CONDITIONS OF SUCH POLICIES.’ ” (Pekin Insurance Co., 213 Ill. App. 3d at 544.)

The policy itself contained an exclusion for any damage or injury arising out of roofing work.

At issue in that appeal was whether an ambiguity or conflict existed between the certificate and the policy, where the policy contained the aforementioned exclusion and the certificate did not. Because the certificate clearly indicated that it was not part of the policy and conveyed no rights to the policyholder, the general contractor was obligated to consult the policy in determining the extent of coverage and the existence of any exclusions. The court distinguished International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 566-70, 532 N.E.2d 493, and J.M. Corbett Co. v. Insurance Co. of North America (1976), 43 Ill. App. 3d 624, 625-27, 357 N.E.2d 125, in which the certificates contained no such limiting language. Further, the certificate and the policy in those cases each contained different exclusions which created an ambiguity in the agreement between the parties. Pekin Insurance Co., 213 Ill. App. 3d at 545-48; see also Bain v. Benefit Trust Life Insurance Co. (1984), 123 Ill. App. 3d 1025, 1030-31, 463 N.E.2d 1082; John Bader Lumber Co. v. Employers Insurance (1982), 110 Ill. App. 3d 247, 249-50,441 N.E.2d 1306.

In this case, Glenview claims that it did not receive a copy of the policy; however, the certificate of insurance, which Glenview did receive, contains the same language as that found in Pekin Insurance Co. The certificate, therefore, only served to inform Glenview that it was covered to the same extent as National Decorating subject to all conditions and exclusions within the policy. Glenview was obligated to examine the policy in order to determine the applicable coverage as well as any exclusions. Although the contract of insurance must be read together with the certificate in order to determine the meaning and effect of the policy {International Amphitheatre Co., 177 Ill. App. 3d at 566), there is no conflict between the two documents, and Glen-view’s argument fails in this regard.

Ill

Glenview asserts that assuming the negligence exclusion is valid, coverage still existed for liability arising from a violation of the Act. National Union responds that courts have applied a negligence standard in determining liability under the Act, thereby precluding coverage based on the negligence exclusion.

In Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, upon which the circuit court based its ruling in the present case, the Illinois Supreme Court discussed the policy behind the Act and the use of the term “wilful” as it applied therein. The court noted that because of the Act’s purpose, which is to protect those engaged in particularly hazardous construction work, the term “wilful” has not been construed in its ordinary sense. Instead, “ ‘a violation of the [Act] is “wilful” when a person having charge of the work knew or, in the exercise of ordinary care, could have known of a dangerous condition.’ ” (Davis, 61 Ill. 2d at 502, quoting Illinois Pattern Jury Instructions, Civil, No. 180.01, Comment, at 468 (2d ed. 1971).) National Union also relies upon Stifle v. Marathon Petroleum Co. (7th Cir. 1989), 876 F.2d 552, 555, in which the court cited Davis and stated that the interpretation of the Act’s “wilful” language “amounts to a typical negligence theory.”

The judicial interpretation of “wilful,” however, does not necessarily equate a cause of action under the Act with a cause of action for negligence; rather, the construction given to the term recognizes that the Act was intended to encompass conduct which is less than intentional. The supreme court noted that “it could hardly have been the intention of the legislature to have [the Act’s] protection limited to the minority of cases which involve intentional or reckless or wanton conduct.” (Davis, 61 Ill. 2d at 502.) In short, “[f]ault of some kind is required [under the Act] although it may range from passive negligence to wilful misconduct.” (Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 647, 439 N.E.2d 126.) A cause of action for common law negligence is neither identical nor tantamount to a statutory cause of action under the Act. See Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 458-61, 473 N.E.2d 946; Rynders v. Sangamo Construction Co. (1982), 103 Ill. App. 3d 552, 554, 431 N.E.2d 1357 (“a violation of the Act is not based on negligence”).

Exclusionary provisions are applied only where the terms are clear, definite, and explicit. (Moore, 103 Ill. App. 3d at 256.) The negligence exclusion in this case denies coverage for liability arising from Glenview’s negligence, but is silent as to liability under the Act. No definition of negligence appears in the policy under the applicable endorsement. The expansive construction necessarily required to include a violation of the Act within the meaning of negligence under the subject policy contravenes the rule that insurance policy exclusions be read narrowly rather than broadly. (Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 138 Ill. App. 3d 346, 350, 485 N.E.2d 1230, aff’d (1986), 113 Ill. 2d 327.) Under the Act an owner, such as Glenview, might be charged with its violation even where it has done nothing but possess the right to control the work, whether that right is exercised or not (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 119, 373 N.E.2d 1348), a standard much different from traditional negligence concepts. Count I of the underlying complaint alleges a violation of the Act and it contains only general allegations of wilfulness. Although liability under the Act might involve negligent conduct by the violator, it cannot be said as a matter of law that the negligence exclusion a priori applies to all violations of the Act. The grant of summary judgment as to coverage of violations under the Act must be reversed.

IV

In case No. 1 — 90—3509, National Surety contends that the circuit court erred in holding that Glenview was an insured under its policy for excess and umbrella liability coverage.

As applied to the umbrella liability provisions of the National Surety policy, an “insured” is defined in relevant part as:

“[A]ny person or organization for whose benefit the Named Insured has, prior to time of the Occurrence, agreed in writing to obtain insurance such as is afforded by this policy, but only with respect to the liability of such person or organization arising out of operations for such person or organization by or in behalf of the Named Insured ***.”

National Surety argues that because National Decorating did not agree in writing with Glenview to obtain excess and umbrella liability insurance, Glenview is not an insured under the policy. The written contract between the parties required National Decorating to maintain insurance as follows:

“The contractor shall secure and maintain in his own name with the Glenview Park District specifically noted as additional insured, Public Liability insurance covering Bodily Injury and Property Damage with limits of not less than one million dollars [per occurrence and in the aggregate].” (Emphasis in original.)

The function of the court in construing an insurance policy is to ascertain and enforce the intention of the parties as expressed in the agreement. (Moore, 103 Ill. App. 3d at 255.) The language of the policy is to be liberally construed in favor of coverage, toward the end that the insured is not deprived of the benefit of insurance for which the insurer has been paid, unless the policy terms clearly require a contrary result. Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App. 3d 752, 755, 488 N.E.2d 1338.

The circuit court properly found that Glenview was an insured under the policy. National Decorating had agreed in writing to secure public liability insurance naming Glenview as an additional insured. National Surety’s policy, entitled “Supercover Umbrella and Excess Liability Policy,” constitutes public liability insurance. (See Fidelity General Insurance Co. v. Nelsen Steel & Wire Co. (1971), 132 Ill. App. 2d 635, 640, 270 N.E.2d 616.) The fact that the policy provides for greater coverage than the minimum prescribed by the contract does not vitiate the policy’s inclusion of Glenview as an additional insured.

Although the certificate of insurance clearly states that it conveys no rights to the holder, Glenview was designated as an additional insured on the face of the certificate. The certificate lists four policies of insurance issued to National Decorating, including National Union’s primary liability policy and National Surety’s excess liability policy, all of which have identical effective dates (August 31, 1987, to August 31, 1988). At the bottom of the certificate, in a space labeled “Description of Operations/Locations/Vehicles/Special Items,” there appears “GLENVIEW ICE RINK, GLENVIEW, IL, ADDITIONAL INSURED: GLENVIEW PARK DISTRICT.”

Clearly, Glenview was an intended insured under all four policies. The deposition of National Decorating’s president also indicates that National Decorating ordered that Glenview be named as an additional insured under both National Union’s and National Surety’s policies. Under all the evidence, the circuit court did not err in finding that Glenview was an insured under National Surety’s policy.

V

Lastly, National Surety urges error in the circuit court’s finding that its policy “dropped down” to provide coverage for Glenview. Glenview responds that National Surety’s policy provided primary coverage to Glenview rather than “drop down” coverage.

The “Supercover Umbrella and Excess Liability Policy” provided two types of coverage: excess liability (specified in the policy as coverage A), and umbrella liability (coverage B). Under the policy, the excess liability coverage obligated National Surety “[t]o pay on behalf of the Insured all sums which the Insured shall become obligated to pay as damages arising out of a hazard or hazards covered by the Primary Policy,” but only in excess of the primary policy’s limits. This type of coverage constitutes traditional “excess” coverage. See 8A J. Apple-man & J. Appleman, Insurance Law and Practice §4909.85 (1981).

The “umbrella liability” coverage, as defined by the policy, obligated National Surety:

“To pay on behalf of the Insured all sums which the Insured shall be obligated to pay as damages by reason of liability imposed on the Insured by law or assumed under Contract because of Personal Injury, Property Damage or Advertising Injury caused by an Occurrence during the Policy Period.”

The occurrence limit for umbrella coverage was defined as follows:

“The limit of the Company’s liability stated in the declarations as applicable to ‘each occurrence’ [$2 million] shall be the total liability of the Company for all damages sustained by one or more persons or organizations as the result of any one Occurrence for Personal Injury, including damages for care and loss of services resulting therefrom, Property Damage or Advertising Injury or any combination thereof.”

That section also states that “[t]his insurance shall be excess over any valid and collectible Other Insurance available to the Insured.” Such language is a typical “other insurance” clause, commonly contained in primary policies and providing coverage only in excess of any other primary policy. See Illinois Emcaseo Insurance Co. v. Continental Casualty Co. (1985), 139 Ill. App. 3d 130, 132, 487 N.E.2d 110; 8A Appleman, at §4909.

Paragraph 0 of the policy conditions, entitled “PAYMENT OF LOSS, ACTION AGAINST COMPANY,” provides:

“[T]he Company shall be liable for payment under this policy only after the Insured and the Primary Insurers have paid or become obligated to pay the applicable amount or amounts of such insurance following final judgment against the Insured after actual trial or by written agreement of the Insured, the claimant, the Company and the aforesaid insurers. ***
With respect to any claim or suit to which the above does not apply, the Company shall be liable for payment under this policy only after the Insured shall have fully complied with all the terms of this policy and the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.” (Emphasis added.)

Paragraph 0, which applies to both coverages A and B, demonstrates that the policy is not intended solely to provide excess coverage, but also obligates National Surety to defend a claim or suit against the insured to which no primary insurance applies. Coverage B, therefore, provides primary coverage, rather than “umbrella” coverage as the term is commonly understood. See 8A Appleman, at §4909.85.

The policy provision upon which National Surety relies reads:

“MAINTENANCE OF PRIMARY INSURANCE-insurance afforded by the Primary Policies with limits of liability not less than as stated in the declarations, or renewals or replacements thereof not more restricted, shall be in full effect at the inception of this policy and shall be maintained during the Policy Period, except for reduction of aggregate limits solely as a result of the payment of claims arising out of injury (i) which occurs during the Policy Period or (ii) for which claim is made against the Primary Policy during the Policy Period if said Primary Policy applies on the basis of claims first made or brought during its policy period. If such Primary Insurance is not maintained in full effect by the Insured, or if any limits of liability of a Primary Policy are less than as stated in the declarations, or if Primary Insurance is unavailable to the Insured due to bankruptcy or insolvency of the insurer, or if there is any material change in the coverage under any Primary Insurance, the insurance afforded by this policy shall apply in the same manner as though such Primary Policies and limits of liability had been in effect, so maintained and unchanged.”
“insurance, other than Primary Insurance or insurance which is specifically purchased by the Named Insured to be in excess of the insurance afforded by this policy, which is available to the Insured and affords coverage with respect to injury or damage to which this policy applies.”

The circuit court concluded that the paragraph above provided Glen-view with coverage which “dropped down” in the absence of primary coverage.

National Surety argues that although the provision mandates conditions which must be met before coverage will “drop down,” none of the enumerated conditions precedent was satisfied in this case. The language of the provision, however, does not contemplate “drop down” coverage. (See, e.g., Donald B. MacNeal, Inc. v. Interstate Fire & Casualty Co. (1985), 132 Ill. App. 3d 564, 567-68, 477 N.E.2d 1322 (policy language imposed a “drop down” obligation).) Rather, the paragraph provides that when any of the listed conditions occur, National Surety’s policy applies as if the primary policy was still in effect.

The cases upon which National Surety relies are distinguishable. In Hudson Insurance Co. v. Gelman Sciences, Inc. (7th Cir. 1990), 921 E2d 92, it was held that the language of an excess umbrella liability policy did not require the excess insurance to “drop down” and provide coverage when the primary insurer became insolvent. The excess umbrella liability policy contained a provision similar to that relied upon by National Surety in this case. The court held that the clause was unambiguous and did not mandate “drop down” coverage. The policy in that case, unlike that in the case sub judice, contained a clause which clearly stated that coverage was only in excess of the total underlying primary policy limit. (Hudson Insurance Co., 921 F.2d at 94-95; see also New Process Baking Co. v. Federal Insurance Co. (7th Cir. 1991), 923 F.2d 62, 63-64.) In the present case, the excess and umbrella liability policy provides both primary and excess coverage and does not contain language that provides “drop down” coverage.

The circuit court’s finding in favor of coverage was proper. Although the circuit court based its finding upon different reasoning, a reviewing court may affirm on any grounds warranted, whether or not they were relied upon below. Leveck v. Consolidated Rail Corp. (1986), 148 Ill. App. 3d 118,129, 498 N.E.2d 529.

For the foregoing reasons, we affirm the circuit court’s holding in case No. 1 — 90—3505 insofar as it upheld the validity of the negligence exclusion in National Union’s policy and determined that the certificate of insurance did not conflict with the policy; however, we reverse the court’s finding that the negligence exclusion precluded coverage to Glenview for liability arising under the Act. Further, we affirm the court’s holding in case No. 1 — 90—3509.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.

SCARIANO and DiVITO, JJ., concur.

      “Other insurance,” as it relates to the policy’s umbrella coverage, is