author: JUSTICE GORMAN

text:
    MANDRELL CORNETT, Plaintiff, v. GROMANN SERVICE COMPANY-RETAIL et al., Defendants and Third-Party Plaintiffs-Appellants (Caterpillar, Inc., Third-Party Defendant-Appellee; Illinois Valley Paving Company, Third-Party Defendant).
    Third District
    No. 3—91—0455
    Opinion filed April 10, 1992.

      Hupp, Lanuti, Irion & Martin, of Ottawa (Raymond P. Fabricius, of counsel), for appellants.
    Robert V. Dewey, Jr., and Matthew S. Hefflefinger, both of Heyl, Royster, Voelker & Allen, of Peoria (Bradley S. McMillan, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This appeal arises from the trial court’s granting of summary-judgment against the third-party plaintiff on its contribution claim. We affirm.

On May 24, 1985, the plaintiff, Mandrell Cornett, was injured when he fell from a piece of construction equipment. On May 21, 1987, he filed suit against Gromann Service Company-Retail, Gromann Service Company-Transport, and Gromann Service Company-Wholesale (hereinafter Gromann). He alleged that Gromann negligently overfilled the fuel tank on the machine, causing fuel to spill, thereby creating a slippery and dangerous condition. The construction machine, a model 980B wheel loader, was manufactured by Caterpillar, Inc.

On January 19, 1990, Gromann filed a third-party action for contribution against Caterpillar and Illinois Valley Paving Co., Cor-nett’s employer. Illinois Valley Paving was subsequently dismissed and is not a party to this action.

Caterpillar filed a motion for summary judgment claiming that any action based on a theory of strict liability was time barred by the product liability statute of repose. Ill. Rev. Stat. 1989, ch. 110, par. 13-213.

Following a hearing on the motion, the trial court found that the action was barred, relying on Thompson v. Walters (1991), 207 Ill. App. 3d 531, 565 N.E.2d 1385. Accordingly, it granted Caterpillar’s motion. This appeal followed pursuant to Illinois Supreme Court Rule 304 (134 Ill. 2d R. 304).

The product liability statute of repose provides, in pertinent part:

“(b) *** no product liability action based on the doctrine of strict liability in tort shall be commenced except within *** 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff ***.
* * *
(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred. ***
* * *
(f) Nothing in this Section shall be construed to create a cause of action or to affect the right of any person to seek and obtain indemnity or contribution.” Ill. Rev. Stat. 1989, ch. 110, pars. 13 — 213(b), (d), (f).

A statute of repose differs from a statute of limitations. A limitations statute is procedural, giving a time limit for bringing a cause of action, with the time beginning when the action has ripened or accrued. A repose statute, on the other hand, is a substantive statute, extinguishing any right of bringing the cause of action, regardless of whether it has accrued. Highland v. Bracken (1990), 202 Ill.App. 3d 625, 560 N.E.2d 406.

The trial court relied on Thompson v. Walters (1991), 207 Ill. App. 3d 531, 565 N.E.2d 1385, in granting summary judgment. In Thompson, the court held that the product liability statute of repose (section 13 — 213) applied to contribution actions. In so doing, the court relied on cases construing similar statutes of repose contained in sections 13 — 212 and 13 — 214. Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873 (medical malpractice statute of repose applies to contribution actions); Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706 (construction-related activity statute of repose applies to contribution actions).

The sole difference between Thompson and the instant case is that in Thompson, the repose period had expired before the plaintiff was injured. Here, the period had not expired at the time Cornett was injured. It is on this point which Gromann seeks to distinguish Thompson.

Gromann first argues that the repose period had not expired at the time Cornett filed his action and thus the contribution claim should relate back to the original complaint. Gromann’s theory is that since Cornett was not barred from filing a direct action against Caterpillar, Gromann should be allowed to pursue contribution, citing dicta from Thompson (207 Ill. App. 3d at 538-39, 565 N.E.2d at 1390).

Section 13 — 213 provides, inter alia, a 10-year cut-off period from the date of the first sale, lease, or delivery of possession to the initial user until the action must be filed.

Caterpillar averred that the wheel loader had been manufactured on March 30, 1977, and sold to Capitol Machinery Co. on May 4, 1977. Capitol Machinery then leased the wheel loader to Illinois Valley Paving on May 16, 1977, and thereafter sold the same machine to Illinois Valley Paving on July 19, 1977. Therefore, this 10-year period ran out on May 16, 1987. The underlying suit was filed May 21, 1987, and the contribution claim was filed January 19, 1990.

Gromann points to section 13 — 213(d), which contains a form of the “discovery rule.” Under Gromann’s theory, since Cornett was injured within the repose period, subsection (d) tolled the statute of repose and gave him at least two years from the time of injury to file suit. Following this argument, the repose period would not have expired until May 24, 1987, three days after the underlying suit was filed. Gromann then argues that section 13 — 213(f) acted to keep alive the contribution claim.

Initially, we note that there is some disagreement about whether the discovery rule is even applicable to sudden, traumatic injuries such as Cornett’s. Some courts would allow Cornett the additional time, while others have held that the discovery rule only applies in product liability cases when the injury is not immediately discoverable. (Compare Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, with Elliot v. Sears, Roebuck & Co. (1988), 173 Ill. App. 3d 383, 527 N.E.2d 574.) We need not resolve that conflict here though.

Even assuming, arguendo, that section 13 — 213(d) would act to extend the time in which Cornett could file suit, it would not extend the time in which Gromann could file its claim.

The discovery rule is designed to allow an injured party sufficient time in which to file suit, once the cause of action has been discovered. In this case, it is not the injured party who seeks to assert these rights. Rather it is the defendant/third-party plaintiff. The discovery rule confers rights upon the plaintiff which cannot be asserted by the third-party plaintiff. It is not a device which can be raised by the third-party plaintiff in an effort to toll the statute of repose.

Therefore the statute of repose period had expired before the third-party claim was filed.

Alternatively, Gromann claims that even if the repose period had expired prior to the filing of the underlying suit, the contribution claim is still timely, because Cornett was in fact injured within the repose period. Gromann notes that Caterpillar’s liability is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is sought. (Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 2454.) Accordingly, Gromann asserts that since the injury occurred before the repose period had run, the contribution action is proper regardless of when the initial suit was filed because Cornett could have filed a direct action against Caterpillar had he so chosen. This position, however, is contrary to the position taken by the supreme court when construing a similar statute of repose.

In Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, the court addressed the issue of whether the medical malpractice statute of repose (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212) applies to contribution actions.

There, the plaintiff initially sued several defendants, including Dr. Michael Jerva, alleging negligence in his treatment of the plaintiff. Subsequently, on stipulation of the plaintiff and Dr. Jerva, Dr. Jerva was dismissed with prejudice. The remaining defendants then filed a contribution action against Dr. Jerva. That third-party action was dismissed by the trial court as being barred by section 13 — 212. Both the appellate court and the supreme court affirmed the dismissal. The third-party plaintiffs argued that the statue of repose did not apply to contribution claims. Instead, they argued that a contribution claim was timely as long as it was filed during the pendency of the underlying suit. The supreme court disagreed and held that, in order to be timely filed, a contribution action must be filed within the repose period or it is barred.

The relevant facts in Hayes are thus very similar to this case. There, the plaintiff discovered within the repose period that he had a cause of action. He then sued several plaintiffs, but eventually chose not to sue Dr. Jerva. After Dr. Jerva was dismissed, the repose period ran. The remaining defendants subsequently filed a contribution claim after the repose period had run, which was dismissed as untimely.

Here, Cornett discovered within the repose period that he had a cause of action. He then sued Gromann. Cornett also could have sued Caterpillar directly within the repose period, had he so chosen. Gromann attempted to file its third-party action after the repose period had expired.

The basis for a contributor’s obligation rests on its liability in tort to the injured party. (Hayes, 136 Ill. 2d at 457, 557 N.E.2d at 876.) A statute of repose is intended to terminate the possibility of liability after a period of time. (Hayes, 136 Ill. 2d at 460, 557 N.E.2d at 878.) A contribution action cannot be maintained against a party who is not subject to liability in tort. (Jodelis v. Harris (1987), 118 Ill. 2d 482, 517 N.E.2d 1055; Thompson v. Walters, 207 Ill. App. 3d at 536, 565 N.E.2d at 1389.) Therefore, contribution actions must be filed within the same repose period applicable to the plaintiff in the underlying action. Hayes, 136 Ill. 2d at 461, 557 N.E.2d at 878; Antunes v. Sookhakitch (1992), 146 Ill. 2d 477.

At the time Gromann filed its third-party complaint, Caterpillar would not have been directly liable by virtue of the statute of repose. To allow Gromann to then implead Caterpillar would expose Caterpillar to the same liability as if Cornett were to have brought a direct action. This would effectively eliminate the protection afforded a manufacturer by the statute of repose and allow a party to seek contribution from a manufacturer years after the repose period had run.

We read section 13 — 213(f) to mean that the statute of repose will not bar contribution between parties who are in fact joined before the repose period expires.

The fact that Cornett could have chosen to sue Caterpillar directly is of no relevance; what matters is whether Cornett did sue Caterpillar within the repose period. He did not. Nor was Gromann’s contribution complaint filed before the repose period had expired. The statute of repose had completely extinguished any potential tort liability on the part of Caterpillar. Since a contribution action can only be maintained against a party who is subject to liability in tort, Gromann’s claim was barred.

Accordingly, we affirm the La Salle County circuit court’s order granting summary judgment in favor of Caterpillar.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
      In re MARRIAGE OF ERMA JEAN LEMING, Petitioner-Appellee, and GARY LEE LEMING, Respondent-Appellant.
    Fifth District
    No. 5—91—0114
    Opinion filed April 13, 1992.

      Edward W. Unsell, of Unsell & Unsell, of East Alton, for appellant.
    Gerald J. McGivern, of Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This is an appeal from an order entered on January 22, 1991, on certain post-trial petitions disposing of a number of issues. Only two of the issues are subject to this appeal, and both deal with construing clauses in a marital settlement agreement entered into by and between the parties and incorporated in the judgment of dissolution of marriage entered on November 3,1987.

The respondent, Gary, presents the following two issues on appeal:

(1) Whether the ruling of the trial court that respondent was responsible for an additional four months’ support for his daughter (Julie), because of post-majority education, was against the manifest weight of the evidence and contrary to the express language of the marital settlement agreement, and
(2) Whether the court’s determination that the petitioner’s, Erma’s, relationship with her boyfriend, Don Wise, did not constitute a resident, continuing conjugal relationship was against the manifest weight of the evidence.

In the trial court’s order, it held that Julie spent about four months past her eighteenth birthday as a full-time student and awarded the petitioner an additional four months’ child support per the marital settlement agreement. The trial court further held that, considering the totality of the circumstances, the petitioner’s relationship with Mr. Wise did not constitute a resident, continuing, conjugal relationship and, accordingly, the respondent was not justified in terminating maintenance.

The marital settlement agreement dated November 2, 1987, upon which the trial court relied, contained the following two provisions relating to the issues raised on appeal.

“3. CHILD SUPPORT AND RELATED MATTERS.
C. Said child support shall continue past the minor child’s majority if said child elects to attend college on a full-time basis, and in that event, child support shall terminate when the child becomes 21 years of age.
* * *
6. MAINTENANCE.
* * *
B. Husband shall pay the sum of $115.00 per month, due on or before the 25th of each and every month, to Wife as and for maintenance, provided however that this amount shall increase to $215.00 per month on July 16, 1989 and shall continue at said rate until the death of either party, or if Wife remarries or cohabits with another person on a resident, continuing conjugal basis.”

The facts concerning Julie’s post-majority education are basically not in dispute. Her eighteenth birthday was July 16, 1989. The respondent discontinued support payments as of August 1989. Julie attended Sparks Business College in August 1989 and International Air Academy, Inc., for three months beginning January 1990. Sparks Business College prepares a student to be a court reporter, but after a short time, Julie decided that was not for her and quit. Later, she went to the International Air Academy, Inc., where she received training to work in the airline industry. She completed the course in three months and was gainfully employed in Houston, Texas, at the time of the hearing. The respondent encouraged Julie to attend Sparks and paid for $1,000 tuition to that school. After leaving Sparks, Julie was unemployed and living at home for approximately four months before beginning her training at International Air Academy, Inc.

The trial court ruled that Julie was a full-time student for four months after reaching majority. It is the respondent’s contention that the evidence did not show that Julie attended the schools on a full-time basis, and, further, that the International Air Academy, Inc., is not a “college” as that term was contemplated under the marital settlement agreement. Therefore, the respondent asserts the trial court’s award of four months’ additional post-majority child support pursuant to the marital settlement agreement was against the manifest weight of the evidence and was contrary to the express language of the marital settlement agreement.

The petitioner argues that her petition was for additional post-majority school expenses and was not based on the agreement for additional child support while attending college as a full-time student. Nevertheless, the trial court based its opinion on the agreement and found the petitioner was entitled to four months’ additional child support with certain credits to the respondent. Alternatively, the petitioner maintains that the issue is waived when the respondent paid $1,000 tuition to Sparks Business College, and, if not waived, the respondent acquiesced by his actions in encouraging Julie to attend Sparks College and by paying her tuition. She contends that by paying for Julie’s tuition at Sparks, the respondent included Sparks, as well as International Air Academy, Inc., as a college as set forth in the marital settlement agreement. We disagree and believe that In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 536 N.E.2d 946, is dispositive of this issue. The respondent is not obligated for additional post-majority expenses unless they come by virtue of the marital settlement agreement.

It is clear from the evidence that neither Sparks nor International Air Academy, Inc., is what is commonly or customarily referred to as a college. The agreement in the instant case states “college on a full-time basis.” The court in Holderrieth held specifically that the phrase “college or professional” school does not include a trade school. The statement in the instant agreement that the respondent pay for additional child support “if said child elects to attend college on a full-time basis” is sufficiently unambiguous, and, as was stated in Holderrieth:

“The parties’ intent must be determined from the instrument as a whole and not from any one clause standing alone; meaning and intent must be given every part. No part should be rejected as surplusage unless absolutely necessary, since it is presumed that the parties inserted each provision deliberately and for a purpose. (White [v. White (1978)], 62 Ill. App. 3d [375,] 378, 378 N.E.2d [1255,] 1258.) The court cannot place a construction on the instrument that is contrary to or different from the plain and obvious meaning of the language. Brown v. Miller (1977), 45 Ill. App. 3d 970, 972, 360 N.E.2d 585, 587.” Holderrieth, 181 Ill. App. 3d at 202, 536 N.E.2d at 949.

We therefore reverse the trial court as to the allowance of additional child support in the sum of $1,237.95 plus interest.

The issue concerning maintenance and cohabitation developed as a result of a number of pleadings, commencing with a petition to modify the marital settlement agreement filed by the respondent on September 5, 1989. In his petition to modify the marital settlement agreement, the respondent claimed that he should no longer pay maintenance because there had been a substantial change of circumstances. He alleged that the petitioner was now gainfully employed and was no longer in need of maintenance. A motion to dismiss was filed, and on March 15, 1990, the respondent’s petition was dismissed with the court ruling that the maintenance was unmodifiable except on the conditions enumerated in the marital settlement agreement, i.e., death, remarriage or cohabitation. The petitioner on July 10, 1990, filed a petition for rule to show cause in an attempt to collect maintenance, as the respondent had discontinued paying maintenance in January 1990. As a defense to this petition, the respondent raised the argument of cohabitation. On September 24, 1990, the court heard evidence on both the child support question, dealt with heretofore in this opinion, and the issue of maintenance.

The only evidence presented at this hearing was by the parties. Although the respondent testified, the great bulk of the testimony on this issue came from the petitioner. It appears from the evidence that the petitioner left her home in Staunton and moved in with Mr. Don Wise in Carlinville on or about March 17, 1990. She testified she resided in the home of Mr. Wise from March 17, 1990, until July 17, 1990, and, for a time, she was engaged to be married to Mr. Wise. At some time during this period, the petitioner told the respondent she was residing with and was engaged to be married to Mr. Wise. The petitioner further testified that she had moved her furniture into Wise’s residence around the first of May. The petitioner had received her mail at her old address in Staunton until May 23, 1990, and after that at Mr. Wise’s address. She admitted that she had engaged in a sexual relationship with Wise from March 17 until the latter part of May. The petitioner sold her house in Staunton on a contract that spring and was receiving payments on that contract. The petitioner also stated that she was employed. She paid rent on the house in Staunton for March, April and May, made her car payments and paid her auto insurance. The petitioner paid no rent or utility bill while she lived with Mr. Wise, but she bought some of the groceries during that time. During the latter part of May, the petitioner gave Wise back his engagement ring and decided that they were not going to get married. After this decision, the petitioner moved downstairs in Mr. Wise’s home and lived separate and apart until she moved out on July 17, 1990. She further testified that all during the period she lived in Wise’s home, she paid her own bills and Mr. Wise paid his, that their funds were never commingled, and that they never purchased any common assets. Further, since July 17, 1990, there was no contact between her and Mr. Wise.

The respondent testified that he learned of the petitioner’s engagement in March 1990 and talked to her a couple of times after that, at which time she indicated she was living with Mr. Wise. He also talked to her in July when she told him she was moving out of Wise’s home. The respondent testified that the petitioner stated she knew he did not have to pay maintenance, but she denied any such conversation.

The court after hearing all the evidence made the following ruling on the question of maintenance:

“8) That considering the totality of the circumstances, ERMA JEAN LEMING’S relationship with Mr. Wise does not constitute a ‘resident continuing conjugal relationship’ as such term is interpreted by the weight of existing case law, and accordingly GARY LEE LEMING is not legally justified in terminating maintenance.”

The termination of maintenance based upon a party cohabiting with another person on a resident, continuing, conjugal basis is a factual situation, and a trial court’s finding that the recipient spouse is not living with another person under circumstances amounting to a de facto husband-wife relationship will not be reversed unless it is contrary to the manifest weight of the evidence. In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 495 N.E.2d 1383; Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 392 N.E.2d 764.

We find the decision in In re Marriage of Caradonna (1990), 197 Ill. App. 3d 155, 159, 553 N.E.2d 1161, 1164, very compelling. In Caradonna, the court stated:

“[T]he most likely reason the legislature added the provision allowing termination of maintenance when there is conjugal cohabitation is that it intended to end the inequities caused when a former spouse had in fact entered into a husband-wife relationship, although not formalized legally, and was still entitled to maintenance merely because Illinois does not recognize common-law marriages. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1017.) Thus, courts have held that to prove continuing and conjugal cohabitation, a party must show that the former spouse is involved in a de facto husband-wife relationship. (Reeder, 145 Ill. App. 3d at 1017; In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 649.) This requirement is related to the underlying rationale for maintenance, the need for support by the spouse who is to receive maintenance. (Reeder, 145 Ill. App. 3d at 1018; see also In re Marriage of Sappington (1985), 106 Ill. 2d 456, 467.) An important consideration is whether the cohabitation has materially affected the recipient spouse’s need for support because he or she either received support from the coresident or used maintenance monies to support the coresident. Arvin, 184 Ill. App. 3d at 649; Reeder, 145 Ill. App. 3d at 1018; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 663.” In re Marriage of Caradonna (1990), 197 Ill. App. 3d 155, 159, 553 N.E.2d 1161, 1164.

Although Caradonna was decided based on section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)), and the instant case is considered on the agreement of the parties, the provision concerning a conjugal relationship remains the same.

In Caradonna the cohabitation lasted six months and was not ongoing at the time of the hearing. In Caradonna, as in the instant case, the person who claimed maintenance paid all her personal expenses, and there was little evidence that the relationship affected her need for support, which the court in Caradonna stated is an important factor in determining whether a de facto husband-wife relationship exists. The fact that the petitioner in this case lived with another man will not automatically justify termination of maintenance. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 495 N.E.2d 1383.) There must be a de facto husband and wife relationship demonstrated before the termination of maintenance is proper. (In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 540 N.E.2d 919.) As was stated in Arvin\

“In [In re Marriage of] Bramson [(1980), 83 Ill. App. 3d 657, 404 N.E.2d 469], the court stated as follows:
‘Moreover, the legislative intent does not appear to be an attempt to control public morals. *** Rather, an important consideration, divorced from the morality of conduct, is whether the cohabitation has materially affected the recipient spouse’s need for support because she either received support from her co-resident or used maintenance monies to support him.’ (83 Ill. App. 3d at 663.)
Our supreme court has quoted the above language with approval. See In re Marriage of Sappington (1985), 106 Ill. 2d 456, 467-68.” Arvin, 184 Ill. App. 3d at 649, 540 N.E.2d at 923.

We believe this case can be distinguished from In re Marriage of Roofe (1984), 122 Ill. App. 3d 56, 460 N.E.2d 784, a case relied on by the respondent. In Roofe, the evidence showed that at the time of the hearing the residential relationship was ongoing and there was no contemplation of termination, while in the instant case the relationship had long since ended.

Considering the totality of the evidence in this case, the trial court’s decision concerning maintenance was not against the manifest weight of the evidence. The trial court considered the short period of cohabitation, the continuing need for support, the lack of commingling of funds, the petitioner’s payment of all her bills with the exception of rent and utilities, and the termination of the relationship and ruled that there was no de facto relationship. In the instant case, the petition for termination of maintenance was filed on a different theory, and the issue of cohabitation was brought up only in defense of a show-cause hearing many months after the termination of the maintenance. Further, although we cannot condone the petitioner’s living arrangements and may have decided this matter differently had we presided at trial, a reviewing court may not reverse the judgment of the trial court merely because different conclusions could be drawn or if reversal would involve merely a substitution of judgment for that of the trier of fact. In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1021, 495N.E.2d 1383, 1388.

For the reasons set forth above, the trial court’s order granting child support in the sum of $1,237.95 is reversed, and its order refusing to terminate maintenance is affirmed.

Reversed in part and affirmed in part.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    TIMOTHY JONES, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Baxter Travenol Labs, Appellant).
    Second District (Industrial Commission Division)
    No. 2—91—0422WC
    Opinion filed January 15, 1992.
    Rehearing denied April 3, 1992.

      Robert B. Ulrich, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent appeals from an order of the circuit court which reversed an Industrial Commission (Commission) decision and reinstated the arbitrator’s award. The circuit court found that medical evidence, which the Commission found controlling, was improperly obtained by respondent in violation of the patient-physician privilege and, without this medical evidence, the Commission’s decision denying claimant benefits could not be sustained. Respondent contends the Commission properly considered the disputed medical evidence in support of its finding that claimant failed to establish he sustained an accidental injury arising out of and in the course of his employment.

At arbitration, claimant testified that on October 10, 1983, while picking up a 140-pound roll of plastic film, he injured his back when the roll slipped from his grasp as he was placing it on a table. Claimant stated he felt pain and an immediate burning sensation in his lower back which radiated into his right leg and that he suffered no such pain or sensations at any time prior to October 10, 1983.

Claimant finished his shift and the next day saw his chiropractor, Dr. Haines, after work. Haines told claimant to contact another doctor, and claimant subsequently went to Dr. Tan on October 26, 1983. An initial hospitalization between October 27, 1983, and November 13, 1983, did not produce improvement, and claimant was eventually rehospitalized in February 1984 and administered a chemopapain injection.

Claimant stated that he notified his supervisor and company nurses about his back injury shortly after it occurred. He also testified he told other workers about his injury but could not remember any of their names.

Claimant also admitted that he had previously seen his chiropractor, Dr. Haines, on approximately six occasions over a five-year period prior to his accident, but said that all of his visits were for treatment to his upper back. Claimant denied ever having a lower-back condition or injury prior to October 10,1983.

Claimant’s foreman and two occupational nurses testified that claimant did not report an accident until a short time before his initial hospitalization. They also testified that claimant worked continuously between October 10 and October 27 at his regular duties and did not appear to be suffering from any injury relative to his back.

When respondent attempted to introduce the medical records of Dr. Haines, claimant objected. Claimant argued that the records had been obtained from the doctor through the use of a falsified subpoena which had been altered to require the doctor to appear' before a notary public at the offices of a business known as Self-Insured Services, Inc. (Self-Insured). Counsel argued that the subpoena also did not list the name of claimant’s attorney, counsel was not served with the subpoena, and the subpoena bore a notation which advised the doctor that personal appearance would not be required if all of his original records were submitted to the address of Self-Insured by the return date listed on the subpoena.

The arbitrator denied respondent’s motion to admit the medical records of Dr. Haines because the subpoena was altered in violation of Commission rule. In his subsequent decision, the arbitrator awarded claimant benefits for his back injury based on what the arbitrator found to be “credible and uncontroverted testimony of the petitioner.”

On review, the Commission acknowledged that the subpoena issued for Dr. Haines’ medical records was altered in apparent violation of Commission rule. Nevertheless, the Commission considered the medical records of Dr. Haines after expressing doubt about its ability to refuse their admission. Those medical records demonstrate that claimant began seeing Dr. Haines on August 1, 1983, for lower-back fatigue and pain on claimant’s right side which radiated occasionally into claimant’s right leg. Claimant visited Haines on nine separate occasions for lower-back treatment immediately prior to October 10, 1983. Haines administered treatment on each occasion, but claimant’s back condition did not respond favorably to this treatment.

Relying on Dr. Haines’ records and the further finding that claimant did not report an accident for approximately 21k weeks after it allegedly occurred, the Commission concluded claimant’s lower-back condition preexisted the accident and he failed to prove that the condition became disabling as a result of work-related activities or that he sustained accidental injuries as a result of his employment. Therefore, the Commission denied benefits.

On initial review, the circuit court remanded the case to the Commission to allow claimant the opportunity to rebut the medical records of Dr. Haines. On remand, after claimant failed to produce any rebuttal evidence, the Commission reissued its original opinion. On further review to the circuit court, the court concluded that the records of Dr. Haines were improperly considered by the Commission because they were obtained in violation of the patient-physician privilege. Accordingly, the circuit court reversed the Commission’s decision and reinstated the arbitrator’s award.

Respondent does not contest that the subpoena issued to Dr. Haines was materially altered by its agent, Self-Insured. Principal among the alterations is the fact that the subpoena was made returnable “before a notary public” at the business address of Self-Insured, rather than before the arbitrator or Commission at the time and place set for hearing of the cause as required by Commission Rule 7030.50(b) (50 Ill. Adm. Code §7030.50(b), at 5737 (1985)). In addition, the name and address of claimant’s counsel were not indicated on the face of the subpoena in the space reserved for that information. Finally, the subpoena requested all of claimant’s medical records, rather than those related to the particular injury for which claimant sought benefits, and the subpoena incorrectly advised the physician that he would have to appear personally unless he delivered the records to the business address of Self-Insured.

Notwithstanding these alterations, respondent contends that because claimant had placed his medical condition in question by filing the application for adjustment of claim, these records would have been obtainable had respondent strictly complied with the requirements of the Commission’s rule on subpoenas. Therefore, respondent contends the circuit court erred in striking these records from consideration, the authenticity of which has never been questioned.

Claimant argues that the records cannot be considered because they were obtained in violation of the subpoena rule of the Commission and, in essence, their disclosure represents a violation of the patient-physician privilege. (See Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.) In Petrillo, the court found, as a matter of public policy, that ex parte communications between counsel for one party and the physician of an adverse party to the litigation are improper and the remedy for violations of the patient-physician privilege engendered by these communications is to prohibit the admission of any evidence gleaned therefrom. Claimant argues that the improper conduct here is comparable to an ex parte communication and should be treated accordingly.

While we should not be heard to condone respondent’s inappropriate conduct, we believe the technical violation of the Commission’s subpoena rule falls short of the substantive conduct condemned in Petrillo. We also conclude the Commission was within its prerogative in declining to enforce the rule by appropriate sanction.

Ex parte communications between a litigant’s physician and opposing counsel violate the patient-physician privilege, in part, because they permit revelation of confidences which have developed between the patient and physician without prior consent of the patient and without knowledge that the communications have even occurred. For this reason, they “jeopardize” the sanctity of the patient-physician relationship. (Petrillo, 148 Ill. App. 3d at 588, 499 N.E.2d at 957.) In contrast, the act of securing written medical records by means of a deficient subpoena does not contravene these principles. In the first instance, claimant, by virtue of filing an application of adjustment for claim, is obligated to disclose his relevant medical records upon request. (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(a).) The Commission rule states, “[ujnless otherwise agreed by the parties, witnesses or documents may only be subpoenaed to appear or be produced at the time and place set for hearing of the cause.” 50 Ill. Adm. Code §7030.50(b), at 5737 (1985).

Section 16 of the Act provides in part the Commission shall have the power to issue subpoenas duces tecum requiring the production of records and documents as may be evidence and to examine and inspect those records or documents. The procedures followed here did not violate the provisions of section 16. The subpoena did violate the Commission rule in that it required the doctor to appear at a time and place other than the time and place set for hearing when there was no agreement between the parties to do otherwise. Although claimant complains that his counsel was not served with a copy of the subpoena, neither the Commission rule nor section 16 of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.16) requires such service. Thus, had the proper subpoena issued to the doctor, respondent could legitimately have received claimant’s medical records without claimant’s prior knowledge. Finally, although the request for records in this case was overly inclusive and returnable at a time and place not specifically designated by rule, claimant does not suggest that the records are inaccurate or contain material to which respondent was not entitled or which would have been exempt from disclosure for any other reason.

The Commission is empowered to enforce its rules with appropriate sanctions when they have been violated. (See 50 Ill. Adm. Code §7030.70, at 5739 (1985).) In this case, the conduct of both parties is open to substantial criticism. Nevertheless, the Commission is the proper body to determine whether sanctions should be imposed for violations of its rules, and the Commission did not abuse its discretion in refusing to do so here. Because the medical evidence received in the Commission’s discretion decisively supports the conclusion that claimant failed to establish an accidental injury within the meaning of the Act, its decision is not against the manifest weight of the evidence.

Accordingly, the order of the circuit court of Lake County is reversed, and the decision of the Commission is reinstated.

Circuit court reversed; Industrial Commission decision reinstated.

RAKOWSKI, WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE CHAPMAN

text:
    RUSSELL BURNETT et al, Plaintiffs-Appellees, v. SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant-Appellant (John Adamson et al., d/b/a Adamson-Matzenbacher Insurance Agency, Defendants).
    Fifth District
    No. 5—91—0009
    Opinion filed April 14, 1992.

      David M. Duree, of O’Fallon, and Reinert & Duree, P.C., of St. Louis, Missouri (Robert L. Carter, of counsel), for appellant.
    Bernard J. Ysursa, of Cook, Shevlin, Keefe, Ysursa, Brauer & Bartholomew, Ltd., of Belleville, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court;

On September 22, 1989, Bonnie McMurray, a passenger in a vehicle operated by Robert Robinette, was killed when Robinette lost control of his vehicle and struck a tree. Notice of the accident was given to the defendants and a claim was made for the death of Bonnie McMurray under the provisions of two motor vehicle insurance policies issued by the defendants to Bonnie McMurray and to Russell and Patricia Burnett. Plaintiffs received $5,000 pursuant to the medical-payment limit under Bonnie McMurray’s motor vehicle insurance policy and $50,000 pursuant to the uninsured motorist provision of McMurray’s policy. Dissatisfied with these amounts, plaintiffs filed a two-count complaint against the defendants. Count I alleges that Safeco Insurance Company of Illinois (Safeco) did not adequately offer uninsured motorist coverage equal to the bodily injury liability limits on both the decedent’s and the Burnetts’ policies, in violation of sections 143a — 2(1) and (2) of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, pars. 755a — 2(1), (2)). Count I sought a reformation of the insurance policies issued by Safeco to the Burnetts and to McMurray. Count II, which was directed at defendants Adamson and Matzenbacher, was severed from count I and is not included in this appeal.

The limits of coverage in Bonnie McMurray’s policy and in Patricia and Russell Burnetts’ policy were $300,000 per person/ $300,000 per occurrence bodily injury liability, $100,000 property damage liability, $5,000 medical payments, and $50,000 per person/ $100,000 per accident uninsured/underinsured liability. Plaintiffs testified that when their daughter Bonnie McMurray applied for insurance she was not informed that she could elect to increase the uninsured motorist coverage limits in an amount equal to the bodily injury liability coverage on her motor vehicle insurance. The Burnetts also testified that they were not advised of the option to increase the uninsured limits in their own policy or in Bonnie’s policy. The trial court entered judgment in favor of the plaintiffs and ordered the uninsured/underinsured limits of Bonnie McMurray’s policy increased from $50,000/$100,000 to $300,000/$300,000. As to the Burnetts’ policy, the court found that Russell and Patricia Burnett had not met their burden of proof and refused to order the reformation of their insurance policy. Safeco appeals.

The first issue on appeal is whether the trial court erred in striking Safeco’s jury demand. In the proceeding below, the trial court severed count I from count II and heard the issues on count I without a jury. Safeco concedes that count I seeks declaratory relief. Safeco contends, however, that count I is at law and not in equity and, therefore, Safeco was entitled to a jury. Count I seeks a declaration of rights: (1) that Safeco provide uninsured motorist coverage to the plaintiffs to the extent of the total bodily injury liability limits; and (2) that Safeco be directed to arbitrate the wrongful death claim under the uninsured motorist provisions of the policies issued to the plaintiffs. As the parties agree that the request for arbitration is equitable in nature, we need only concern ourselves with the request to increase the coverage under the insurance policies.

The right to a jury trial in a civil action arises pursuant to article I, section 13, of the Illinois Constitution: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.) In Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 148, 199 N.E.2d 797, 799, the supreme court construed this provision as guaranteeing the right to trial by jury as it existed in common law actions when this country’s constitution was adopted. There was then, and there currently is, no constitutional right of trial by jury in equity. (Lazarus, 31 Ill. 2d at 148, 199 N.E.2d at 799; Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 494 N.E.2d 634.) As stated by the supreme court:

“Actions for a declaratory judgment were unknown to the common law [citations], and are neither legal nor equitable, but are sui generis [citation]. Consequently, the right to trial by jury depends upon the relief sought. When a declaration of rights is the only relief sought, the predominant characteristics of the issues in dispute determine whether there exists the right to a jury trial. If additional relief is sought, the nature of that relief determines the right to a trial by jury.” Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 57-58, 514 N.E.2d 150, 165-66.

The underlying issue in dispute before the trial court was whether the court could imply by law that the uninsured/underinsured limits in the policies should be increased. To reach this issue the court first had to determine if an offer to increase coverage was made as required by law. (See Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956.) Once the court found that the offer for uninsured/underinsured coverage had not been made to Bonnie McMurray, the court merely had to imply by law the coverage into her policy. (See Eipert v. State Farm Mutual Automobile Insurance Co. (1989), 189 Ill. App. 3d 630, 545 N.E.2d 497; Blake v. State Farm Mutual Automobile Insurance Co. (1988), 168 Ill. App. 3d 918, 523 N.E.2d 85.) The construction of a contract, in this case an insurance policy, and the determination of the rights and obligations of the parties to the contract are questions of law, the determination of which rests exclusively with the court. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 58, 514 N.E.2d 150, 166.) As the predominant characteristics of the issues before the trial court were within the exclusive province of the court, we cannot find that the trial court erred in striking Safeco’s jury demand as to count I.

Safeco next argues that pursuant to principles of equity Patricia and Russell Burnett should be precluded from recovering because the court determined that they personally were adequately informed of the option to increase the uninsured/underinsured limits of coverage in their policy. Safeco contends that to reward the Burnetts for their failure to relay to Bonnie McMurray their knowledge of the option to increase the uninsured/underinsured limits would be contrary to the equitable principle of fair dealing. The parties disagreed as to whether or not the Burnetts were adequately informed of the option to increase the limits of their own policy, but the court found that the Burnetts had not met their burden of proof on that issue. We find this inconsequential to the issue at bar, however, because the issue here is whether the decedent, Bonnie McMurray, was informed of her rights pursuant to sections 143a — 2(1) and (2) of the Illinois Insurance Code. Ill. Rev. Stat. 1989, ch. 73, pars. 755a — 2(1), (2).

It is undisputed that the policy issued to Bonnie McMurray was for a vehicle which she was going to personally own; the policy was issued in Bonnie McMurray’s name only; the signature of the insured on the application for insurance reads “Bonnie McMurray.” Sections 143a — 2(1) and (2) of the Illinois Insurance Code provide:

“No policy *** shall be renewed or delivered or issued *** unless uninsured motorist coverage *** is offered in an amount up to the insured’s bodily injury liability limits. *** The named insured may elect to purchase limits of uninsured motorist coverage in an amount up to the bodily injury liability limits on the insured motor vehicle or reject the offer of additional uninsured motorist coverage ***.” (Ill. Rev. Stat. 1989, ch. 73, pars. 755a-2(l), (2).)

Safeco’s argument would have this court deny recovery where third parties, in this case the Burnetts, were informed of the rights conferred under the Illinois Insurance Code as to their own policies. Such an interpretation of the statute is inconsistent with sections 143a— 2(1) and (2) where it is the named insured whose rights are sought to be protected. Whether or not the Burnetts were advised of their rights to have the limits of coverage in their policies increased is of no consequence to the determination of whether their daughter was so advised with regard to the policy issued to her.

Moving on to the next issue, Safeco draws our attention to section 143a — 2(2) of the Illinois Insurance Code:

“In those cases where the insured has elected to purchase limits of uninsured motorist coverage which are less than bodily injury liability limits or rejects limits in excess of that required by law, the insurer need not offer in any renewal, reinstatement, reissuance, substitute, amended, replacement or supplementary policy, coverage in excess of that elected by the insured in connection with a policy previously issued to such insured by the same insurer unless the insured subsequently makes a written request for such coverage.” (Ill. Rev. Stat. 1989, ch. 73, par. 755a-2(2).)

Safeco argues that it owed no duty to advise Bonnie McMurray of the option to increase the limits of coverage because the policy issued to her was a “renewal, reinstatement, reissuance, substitute, amend[ment], replacement or supplementary policy” to the policies issued to Patricia and Russell Burnett, on which Bonnie McMurray was an insured. We disagree.

The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. (People v. Ullrich (1990), 135 Ill. 2d 477, 483, 553 N.E.2d 356, 359.) In construing a statutory provision the court should look first at the plain meaning of the language of the statute. (Ullrich, 135 Ill. 2d at 483, 553 N.E.2d at 359.) A word having a well-known legal significance generally will be presumed to have that meaning in the statute. (Makela v. State Farm Mutual Automobile Insurance Co. (1986), 147 Ill. App. 3d 38, 48, 497 N.E.2d 483, 490.) The words used to describe the types of policies referred to in section 143a — 2(2) have been defined as follows:

“Renewal” is “[t]he substitution of a new right or obligation for another of the same nature.” Black’s Law Dictionary 1165 (5th ed. 1979).
“Reinstatement” is “a restoration of the insured’s rights under a policy which has lapsed or been cancelled.” Black’s Law Dictionary 1157 (5th ed. 1979).
“Issue” is “[t]he act of issuing, sending forth, emitting or promulgating.” Black’s Law Dictionary 745 (5th ed. 1979).
“Substitute” is “[t]o put in the place of another person or thing; to exchange.” Black’s Law Dictionary 1281 (5th ed. 1979).
“Amend” is “[t]o change, correct, revise.” Black’s Law Dictionary 74 (5th ed. 1979).
“Replace” is “to supplant with substitute or equivalent.” Black’s Law Dictionary 1168 (5th ed. 1979).
“Supplementary” is “[a]dded as a supplement; additional.” Black’s Law Dictionary 1290 (5th ed. 1979).

The insurance policy at bar does not fall within the statutory exclusions listed. We base this conclusion on the plain meaning of the words in section 143a — 2(2) and the facts of this case. Prior to Bonnie McMurray having an insurance policy issued in her name alone, she was an insured under her parents’ policies because she was a resident of their household. McMurray was included as an insured under the Burnetts’ policies even though she was not specifically listed as a named insured in the declaration sheet. Bonnie McMurray’s policy, which is at issue here, was in her name alone and listed her as the named insured. Bonnie McMurray completed a new application for insurance before that policy was issued. That policy was for an automobile which had never been listed as an insured vehicle on Russell or Patricia Burnett’s policies. The premium for McMurray’s policy was separate from the premiums paid for the Burnetts’ policies. We agree with the trial court’s conclusion that the policy issued to Bonnie McMurray was a new policy and as such Safeco was required to advise McMurray of the option to increase the limits of uninsured motorist coverage.

Safeco next argues that the trial court’s decision was against the manifest weight of the evidence. Safeco insists that the court erred in finding that Bonnie McMurray was a “passenger in a motor vehicle being driven by Robert Robinette, an uninsured driver, when the said Robert Robinette lost control of his motor vehicle allowing it to cross the centerline, leave the roadway and striking [sic] a tree, resulting in the death of Bonnie McMurray.” Defendant contests the allegations of how the accident occurred and argues that there was no evidence at trial as to the circumstances surrounding the accident.

We agree that the trial court acted prematurely in making a determination as to the cause of the accident and the fault of the parties. Plaintiffs agree that questions of the liability of the uninsured motorist, the contributory fault of Bonnie McMurray, and the damages sustained in the accident are yet to be resolved.

In general, a declaratory judgment action brought prior to a determination of the insured’s liability is premature since the question to be determined is not then ripe for adjudication. (Brotherhood Mutual Insurance Co. v. Roseth (1988), 177 Ill. App. 3d 443, 450, 532 N.E.2d 354, 359.) An exception to this rule exists when the issues raised in the declaratory judgment action are severable from those in the underlying action, “ ‘the primary concern being that an untimely determination in the declaratory judgment action could subsequently prejudice a party in the underlying action through application of collateral estoppel.’ ” (Brotherhood Mutual, 177 Ill. App. 3d at 451, 532 N.E.2d at 359, quoting Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 157, 466 N.E.2d 1091, 1096; see Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) In the instant case the questions before the trial court in the declaratory judgment action were whether or not an adequate offer of uninsured motorist coverage was made and whether the insurance policies should be reformed; the ultimate liability of the defendants was not at issue.

Illinois Supreme Court Rule 366 provides:
“(a) Powers. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,
(1) exercise all or any of the powers of amendment of the trial court;
* * *
(5) enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief, *** that the case may require.” (134 Ill. 2d R. 366.)

To avoid any possible prejudice to the parties with regard to the trial court’s finding as to how the accident occurred, we hereby vacate paragraph 3 of the trial court’s judgment without prejudice to the rights of the parties.

Safeco next argues that the court erred in allowing the case to proceed under count I prior to the trial of count II. Count I of plaintiffs’ complaint seeks declaratory relief and asks the court to increase the uninsured/underinsured limits of both McMurray’s policy and the Burnetts’ policy to the bodily injury liability limits of those policies. Count II seeks money damages for the same alleged Insurance Code violation on a negligence theory. Safeco submits that a determination of the ultimate factual issues in count I prejudiced it in the trial of count II.

In the declaratory judgment action the issues were whether the defendants made an adequate offer of uninsured motorist coverage under the Insurance Code and whether the plaintiffs were entitled to reformation of their insurance policies. The allegations in the two counts are similar; however, as plaintiffs point out, they are actually praying for different relief. There has been no determination as to the negligence on behalf of Safeco or its agents, nor has there been any determination as to the liability of the underinsured motorist. Based on the circumstances, we cannot find that the trial court erred in proceeding as to count I before the trial of count II.

Safeco next alleges that the trial court’s decision that Bonnie McMurray was not presented with an adequate offer to increase her uninsured limits to her bodily injury liability limits was against the manifest weight of the evidence.

At the time Bonnie McMurray purchased her insurance, section 143a — 2(1) of the Code required the insurer to offer McMurray uninsured motorist coverage in an amount equal to the insured’s bodily injury liability limit. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(1).) Under Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548, that offer had to satisfy a four-point test for commercial reasonableness. The offer was required: (1) to notify the insured in a commercially reasonable manner if the offer was not made in face-to-face negotiations; (2) specify the limits of the optional coverage without using general terms; (3) intelligibly advise the insured of the nature of the offer; and (4) advise the insured that the optional coverage is available for a relatively modest premium increase. Cloninger, 109 Ill. 2d at 425-26, 488 N.E.2d at 550.

Julia Riviers, an insurance agent with Adamson-Matzenbacher Insurance Agency, testified that in July of 1989, Bonnie McMurray and her mother, Patricia Burnett, came to the agency to complete an application for insurance coverage. Riviers testified that McMurray completed most of the application in her own handwriting and that she read the application before signing it. Riviers testified that she reviewed the policy with McMurray and discussed the amounts of coverages with her at that time. She advised Bonnie McMurray that she could have uninsured motorist coverage limits equal to the limits of her bodily injury liability limits and that the cost of the extra coverage would be approximately $12.

As part of the evidence in this case, certain statements were read by the court including portions of the discovery deposition of Julia Riviers. In that deposition she was asked the following questions and gave the responses indicated:

“Q. What else did you say to her [Bonnie McMurray] concerning uninsured or underinsured motorists coverage?
A. That she can — For an extra premium, she can get it up to the limits of her liability.
Q. Did you tell her how much the extra premium was?
A. No I did not. She specifically wanted the same coverages that her mother had for the same limits.
Q. Okay. She told you that?
A. Patricia told me that. And then when I offered it to Bonnie, she did not want it.
Q. Well, let’s go back. As I understand it then, you told Bonnie that you could, for an — she could have for an additional premium, an uninsured and underinsured motorist coverage limits up to the limit of her bodily injury liability limits; is that correct?
A. That is correct.
Q. But you did not tell her the amount of the increase or the additional premium; is that correct?
A. The exact figure, no.
* * *
Q. Okay. The explanation you gave me is what — You’ve already told me what you told her. Is there something else you told her that you haven’t mentioned here today concerning uninsured or underinsured motorist coverage?
A. No.”

When asked at trial why she did not mention during the taking of her deposition that she had told McMurray the cost of additional coverage, Riviers explained that she had not been asked about this. Riviers admitted, however, that at her deposition she answered “No” when asked whether there was anything else she had told McMurray regarding uninsured or underinsured motorist coverage which she had failed to mention.

Patricia Burnett testified that she accompanied Bonnie McMurray to the insurance agency in order to complete the application for insurance. Burnett testified that she was with Bonnie at all times while at the agency and heard every conversation that her daughter had with Julia Riviers. She testified that Riviers did not explain to her daughter that she could have additional uninsured motorist coverage up to her bodily injury liability limits, nor did she advise Bonnie how much it would cost to increase the uninsured motorist limits. Burnett did recall that Riviers advised Bonnie McMurray as to the total cost of the insurance.

According to Patricia Burnett, Safeco never intelligently advised Bonnie McMurray of the nature of the uninsured/underinsured coverages and never offered the option for a modest increase in the premium. The judgment of the trial court provides that “although Julia Riviers [has] testified that she advised Bonnie McMurray of her right to purchase uninsured motorist coverages up to $300,000.00 and that she further advised Bonnie McMurray that said increase could be received for a little less than $12.00, such testimony is not credible.” It is not inconsistent with the evidence that any mention of the uninsured limits with respect to the bodily injury liability limits was general in nature and lacking in the detail required by Cloninger. (See Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 525 N.E.2d 1076; cf. Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 515 N.E.2d 1304.) The trial court is in a far better position to determine the credibility of the witnesses, and the court of review will not disturb its findings unless they are against the manifest weight of the evidence. (Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App. 3d 656, 665, 485 N.E.2d 1248, 1254.) In this case we cannot find that the trial court’s decision was against the manifest weight of the evidence.

Safeco contends that the trial court erred in reforming Bonnie McMurray’s insurance policy, increasing the uninsured/underinsured motorist coverage to that of the bodily injury liability coverage. Defendant argues that this remedy required the court to presume that Bonnie McMurray would have elected higher limits of uninsured/ underinsured coverage than her parents. Section 143a — 2 of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2) is a source of consumer protection, to ensure that insureds receive information adequate to make an informed decision about coverage. (Blake v. State Farm Mutual Automobile Insurance Co. (1988), 168 Ill. App. 3d 918, 923, 523 N.E.2d 85, 88.) Implying the maximum amount offered as a suitable remedy where the insurer fails to perform its statutory duty to offer increased uninsured motorist coverage has been upheld as a proper remedy. (See Blake, 168 Ill. App. 3d 918, 523 N.E.2d 85; see also Eipert v. State Farm Mutual Automobile Insurance Co. (1989), 189 Ill. App. 3d 630, 545 N.E.2d 497.) We cannot conclude that the trial court erred in implying by law the remedy of reformation of the insurance policy at bar.

The next issue is whether the trial court erred in ruling that communications between the attorney for the defendants and Julia Riviers are not protected by the attorney-client privilege. Defendants argue that the attorney-client privilege between Julia Riviers and defendants’ attorney was violated. Defendants contend that the discovery deposition of Julia Riviers, as an admission against interest of Safeco, could be read only on the basis that she was an officer of Safeco. Defendants argue that the deposition would not be admissible on the grounds that she was an agent of Safeco because such post-transaction statements by agents are not admissible as admissions against interest. Notwithstanding these arguments, defendants fail to specify what testimony in particular may have been admitted in violation of the privilege. Additionally, no allegation has been made as to whether that testimony, if inadmissible, was material to the court’s decision in this case and whether its inadmissibility would warrant a reversal of the court’s judgment. Defendants do not explain how the purported inadmissible testimony prejudiced their position.

This court is not in a position to speculate as to what, if any, prejudice resulted from the admission of the purported inadmissible testimony. A reviewing court is entitled to have the issues clearly defined with pertinent authority cited. (See Schwachman v. Greenbaum Mortgage Co. (1983), 115 Ill. App. 3d 234, 450 N.E.2d 750; Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 441 N.E.2d 360.) Under the circumstances, we cannot find that the trial court erred in its ruling.

Finally, defendants argue that the plaintiffs have waived their right to arbitrate the issues of the negligence of the uninsured motorist, damages and the contributory fault of McMurray. Defendants refer to the judgment of the trial court which, with regard to count I, provides in pertinent part:

“The Court further finds *** that the parties may proceed with the arbitration presently pending .to determine the actual damages sustained by the next of kin of Bonnie McMurray as a result of her wrongful death.”

Defendants assert that because the plaintiffs have chosen to litigate the issue of damages in count II they have waived their right to arbitration.

Arbitration is a favored method of settling disputes in Illinois. (Yates v. Doctor’s Associates, Inc. (1990), 193 Ill. App. 3d 431, 440, 549 N.E.2d 1010, 1016.) A waiver of arbitration rights is disfavored, but a waiver may occur when a party’s conduct is inconsistent with the arbitration clause in an agreement, thus indicating an abandonment of the right to arbitration. (Yates, 193 Ill. App. 3d at 440, 549 N.E.2d at 1016.) The arbitration clause in Bonnie McMurray’s policy provides:

“If any such person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured or under-insured motor vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this insurance, then the matter or matters upon which such person and the company do not agree shall be settled in accordance with the rules of the American Arbitration Association.”

Plaintiffs argue that they have at no time conducted themselves in a manner inconsistent with the right to arbitrate. Plaintiffs submit that they sought arbitration prior to the trial of counts I and II, and it was the defendant who objected and obtained a stay of arbitration.

In the declaratory judgment proceeding the issues were whether the defendants made an adequate offer of uninsured motorist coverage under the Insurance Code and whether the plaintiffs were entitled to reformation of their insurance policies. No determination has been made as to the liability of the uninsured motorist, the damages sustained by the insured, or the contributory fault of the insured. Count II is an alternate cause of action by the plaintiffs to recover money damages for the negligence of the defendants. It is plaintiffs’ right to plead alternative counts for recovery. Plaintiffs sought arbitration early on but defendants objected to such. We cannot find that under the facts of this case plaintiffs have submitted arbitrable issues to the court so as to abandon their right to arbitration. (See D.E. Wright Electric, Inc. v. Henry Ross Construction Co. (1989), 183 Ill. App. 3d 46, 538 N.E.2d 1182.) Plaintiffs have not waived their right to arbitrate the issues of negligence of the uninsured motorist, damages and the contributory fault of Bonnie McMurray.

In light of the foregoing, we vacate paragraph 3 of the judgment of the trial court without prejudice to the rights of the parties, and we affirm the judgment of the trial court as to all remaining issues.

Affirmed in part; vacated in part.

GOLDENHERSH and LEWIS, JJ., concur.


text:
    FREDERICK W. KELCH et al, Petitioners-Appellees, v. RITA WASER IZARD, Respondent-Appellant.
    Fifth District
    No. 5—90—0616
    Opinion filed April 20, 1992.

      Jay M. Huetsch, of Adams & Huetsch, of Waterloo, for appellant.
    Crowder & Scoggins, Ltd., of Columbia (Mark C. Scoggins, of counsel), for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

Respondent, Rita Waser Izard, appeals the circuit court’s order approving a commission of surveyors’ report and accepting the surveyors’ plat of survey reestablishing the boundary line between her property and the property of the petitioners, Frederick and Sheila Kelch. On appeal, the respondent raises three issues: (1) that the circuit court erred in denying her motions to dismiss the petitioners’ petition for appointment of a commission of surveyors, (2) that the court lacked subject matter jurisdiction of this cause, and (3) that the court’s acceptance and approval of the surveyors’ report and plat of survey was against the manifest weight of the evidence. We affirm for the reasons set forth below.

The facts of this case are as follows: On September 28, 1987, the petitioners filed a petition for appointment of commission of surveyors pursuant to section 2 of “An Act to provide for the permanent survey of lands” (Ill. Rev. Stat. 1987, ch. 133, par. 12). In this petition, the petitioners alleged that they were the owners in fee simple of the land described in pertinent part as follows:

“The west half of the Northwest Quarter of Section 4 in Township 3 South, Range 9 West of the 3rd P.M., Monroe County, Illinois ***.”

The petitioners referred to this property as Tract I in their petition.

The petitioners further stated in their petition that the respondent was the owner of real estate immediately adjacent to the east side of their property and described the property as follows:

“Forty-nine (49) and 14/ioo acres of equal width off of the west side of the east half of the Northwest Quarter of Section 4, Township 3 South, Range 9 West of the 3rd P.M., Monroe County, Illinois.”

The petitioners referred to the respondent’s property as Tract II.

The petitioners alleged in their petition that there is a dispute between them and the respondent regarding the boundary between their properties, i.e., the dividing line between the east and west halves of the northwest quarter of section 4. According to the petitioners’ petition, the respondent refused to enter into an agreement for the appointment of a surveyor “to establish and re-establish the lines and corners defining the boundary.” Therefore, the petitioners asked that the court appoint a commission of surveyors to make a survey and permanently establish the boundary line between the petitioners’ and the respondent’s property.

Subsequently, the respondent filed two motions to dismiss. The first motion was filed pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), and, in this motion, the respondent sought the dismissal of the petitioners’ petition on the basis that the petition was insufficient at law. The respondent’s second motion to dismiss was based upon the doctrines of res judicata and collateral estoppel. The court denied the respondent’s two motions to dismiss, and ultimately, the court granted the petitioners’ petition for appointment of a commission of surveyors. In a subsequent order, the court appointed three surveyors to the commission to survey the boundary in dispute.

The commission of surveyors conducted its survey and submitted its report to the court, and the respondent filed an objection to the report on May 14, 1990. A hearing on the report was held on May 30, 1990, following which the court approved orally the commission’s report and accepted the commission’s plat of the survey of the boundaries established. In the court’s written order of June 20, 1990, the court approved the report and accepted the survey plat prepared by the commission of surveyors, ordered the plat of the survey to be recorded in the office of the Monroe County recorder of deeds, and ordered the cost of the survey to be divided equally between the petitioners and the respondent. The respondent filed a post-trial motion which was denied by the court, following which the respondent filed this appeal. No further facts will be set forth at this juncture, as the facts pertinent to a specific issue will be delineated under the discussion of that issue.

Our first consideration on appeal is the respondent’s issue that the court erred in not granting her motions to dismiss. The first argument of the respondent concerns her motion to dismiss pursuant to section 2 — 615, in which she alleged the petitioners’ petition was insufficient at law. The respondent argues that the petitioners’ petition was insufficient as the petitioner failed to allege that the boundary in dispute was an original boundary established by the United States. She further asserts that, since the appointment of a commission of surveyors is only to reestablish original comers and boundaries established by the United States and not for the establishment of new corners and boundaries, and that since the petitioners did not allege that the boundary in dispute was a boundary established by an original government survey, the petition was insufficient at law. We disagree.

In reviewing a motion to dismiss, all facts well pleaded and the reasonable inferences which may be drawn from those facts are taken as true. (Sharps v. Stein (1980), 90 Ill. App. 3d 435, 413 N.E.2d 75.) Additionally, a reviewing court must interpret the facts alleged in the light most favorable to the plaintiff. (Sharps v. Stein (1980), 90 Ill. App. 3d 435, 413 N.E.2d 75.) A complaint will not be set aside unless the pleadings disclose no set of facts could be proved that will entitle the plaintiff to relief. (Sharps v. Stein (1980), 90 Ill. App. 3d 435, 413 N.E.2d 75.) In determining whether a complaint is adequate, it is to be liberally construed with a view towards doing substantial justice between the parties, and no complaint is bad if it contains such information as reasonably informs the opposite party of the nature of the claim which he is called upon to meet. (Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, 463 N.E.2d 913.) Under these principles, we do not find that the petitioners’ petition was insufficient at law.

The statute involved in this case states in pertinent part as follows:

“Whenever one or more proprietors of lands in this state, the corners and boundaries of whose lands are lost, destroyed, or are in dispute, or who are desirous of having said corners and boundaries permanently re-established, and who will not enter into an agreement as provided by section one of this act, it shall be lawful for said proprietor or proprietors that they shall cause a notice, *** that *** he, she or they will make application to the circuit court of the county in which said lands are situated, for the appointment of a commission of surveyors to make survey of and to permanently establish said comers and boundaries ***.” (Ill. Rev. Stat. 1987, ch. 133, par. 12.)

It is clear from the foregoing language of the statute that to seek relief under the statute a petition must allege that a boundary is in dispute and that the proprietors will not enter into an agreement to have the land surveyed.

Further, although the case law has set forth the precedent that a commission of surveyors appointed under this statute cannot be used to establish new corners and boundaries (Burns v. Kimber (1912), 176 Ill. App. 515), it is this court’s understanding from a reading of the statute and the case law that this reference is such that a commission cannot be used to alter the original corners and boundaries originally established by the United States, as these original surveys were the cornerstones for establishing further boundaries. However, this court does not interpret the case law and the statute as prohibiting the use of a commission of surveyors appointed by the court to permanently establish or reestablish interior boundaries that have been established by other surveyors when those boundaries were based upon the exterior boundaries set by the original corners and boundaries done by the United States.

The petitioners, in their petition, sought to “establish and reestablish” the boundary in dispute. From this language and the reasonable inference to be drawn therefrom, it was evident that the boundary in dispute was an established boundary and not a “new” boundary, and that the boundary was an interior boundary based upon the exterior boundaries and corners established by the United States government for the northwest quarter of section 4. Thus, based upon the principles for reviewing a motion to dismiss and the statute and case law applicable to this cause of action, we find that the facts alleged in the petitioners’ petition were sufficient to withstand a motion to dismiss under section 2 — 615. Further, it was clear that the respondent knew what she was to defend against from the language of the petition.

We next consider the respondent’s contention that the court erred in denying her motion to dismiss under the doctrines of res judicata and collateral estoppel, because the issue of the disputed boundary line was settled in a prior lawsuit (case No. 85 — L—23) between the McNeills, the predecessors in interest to the Kelches’ property, and Carlton Izard, the respondent’s husband. The respondent argues that this issue is res judicata because this issue of the disputed boundary was raised or could have been raised in the prior lawsuit. The respondent also asserts that because the cause of action between the McNeills and the respondent’s husband was dismissed with prejudice and was thus an adjudication of the merits of the issue, the issue is res judicata.

The doctrine of res judicata is applicable when a subsequent lawsuit arises between the same parties and is based upon the same cause of action as the first lawsuit. (Northern Trust Co. v. Aetna Life & Surety Co. (1989), 192 Ill. App. 3d 901, 549 N.E.2d 712.) Under this doctrine, a final judgment on the merits is conclusive as to the rights of the same parties in subsequent litigation as to all issues which were or which might have been raised in the previous litigation. (Northern Trust Co. v. Aetna Life & Surety Co. (1989), 192 Ill. App. 3d 901, 549 N.E.2d 712.) Collateral estoppel is applicable when a party participates in two separate lawsuits and a controlling fact or question material to the determination has been adjudicated against that party in the former suit; however, the judgment in the first suit is binding only with regard to issues that were actually litigated. (Northern Trust Co. v. Aetna Life & Surety Co. (1989), 192 Ill. App. 3d 901, 549 N.E.2d 712.) It is the party who raises this defense who has the burden of showing what was determined by the prior judgment, and if any uncertainty exists, the doctrine will not be applied. (Northern Trust Co. v. Aetna Life & Surety Co. (1989), 192 111. App. 3d 901, 549 N.E.2d 712.) Here, we do not find that there was identity of cause of action between the two lawsuits to make the doctrine of res judicata applicable.

In the first lawsuit, captioned Paul S. McNeill and Lucille E. McNeill v. Carlton Izard, case No. 85 — L—23, a six-count complaint was filed. The facts surrounding this complaint were that the defendant, Carlton Izard, shouted, threatened and shot a gun in the direction of Lucille McNeill, while she was riding a horse. The first five counts concerned causes of action relating to this incident and are not relevant to this discussion. In the sixth count, the plaintiffs alleged that they owned and possessed the property adjacent to the property owned and possessed by the defendant. In the third paragraph of this count, the plaintiffs alleged:

“During the Summer of 1984, the Defendant built a fence which encroached on Plaintiffs’ property approximately twenty-one (21) feet and prohibited ingress and egress over the entire length of the boundary line between Plaintiffs’ property and Defendant’s property.”

It is this third paragraph to which the respondent in the current lawsuit directs our attention to support her contention that the issue of the disputed boundary was litigated in the previous lawsuit, thereby making the doctrine of res judicata applicable. We disagree.

A further reading of the sixth count in the lawsuit between the McNeills and the respondent’s husband reveals that the cause of action raised in this count was for trespass. Trespass is not the same cause of action as a request for a determination of a permanent boundary in a boundary dispute. The elements of the cause of action of trespass were stated in Dial v. City of O’Fallon (1979), 75 Ill. App. 3d 782, 394 N.E.2d 84, aff’d & remanded (1980), 81 Ill. 2d 548, 411 N.E.2d 217. In Dial, this court stated that “[t]he gist of the action of trespass to realty is an unlawful entry upon another’s possession unlawfully and with force; the form of the instrumentality by which the close is broken is immaterial.” (Dial, 75 Ill. App. 3d at 784, 394 N.E.2d at 86.) Thus, one of the elements of trespass is possession of the property. The purpose of the appointment of a commission of surveyors is to establish the permanent boundary of property and not to establish the title to property. (Krause v. Nolte (1905), 217 Ill. 298, 75 N.E. 362.) It follows that if the appointment of a commission of surveyors cannot be used to establish title to property, it likewise will not establish possession of property. Thus, the resolution of the trespass action did not involve the issue of the disputed boundary line but only possession. Further, the disputed boundary issue was not an issue that could have been raised in the prior trespass action, as a determination of the disputed boundary line would not have resolved the trespass action. Therefore, the doctrine of res judicata was not applicable to the petitioners’ petition for an appointment of a commission of surveyors to resolve the boundary-line dispute.

Moreover, there is a great deal of uncertainty of whether this issue was decided in the prior judgment. In the record of the instant case, the six-count complaint, a summons to Carlton Izard, and a “Stipulation for Dismissal” were the only documents provided from the prior cause of action. In the “Stipulation for Dismissal,” it was stated:

“This cause having been compromised and settled, it is hereby stipulated and agreed by and between the parties hereto, by their counsel, that the action be dismissed with prejudice to the plaintiffs at plaintiffs’ cost.”

In conjunction with the foregoing stipulation, the court entered an order dismissing all six counts of the plaintiffs’ complaint with prejudice. And, while the law is that a dismissal with prejudice is tantamount to an adjudication on the merits and res judicata could apply (Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 424 N.E.2d 679) (that is, applicable only if we had concluded that trespass and the current action were the same causes of action), an affidavit filed -with the petitioners’ objection to the respondent’s motion to dismiss leads this court to conclude that, even if the essential elements of res judicata were satisfied, we would not apply the doctrine as unfairness would result. Northern Trust Co. v. Aetna Life & Surety Co. (1989), 192 Ill. App. 3d 901, 549 N.E.2d 712.

In the petitioners’ attorney’s affidavit filed with their objection, he stated that he represented the McNeills in the prior case, and that on May 18, 1987, he offered to stipulate to the appointment of a commission of surveyors to determine the boundary line between the McNeills’ and the Izards’ property. Carlton Izard’s attorney refused to allow the survey at that time on the basis that the case concerned a trespass and was not for determining a boundary line; that the owner of the property was Rita Izard, who was not a party to the suit with the McNeills; and that that they did not intend to litigate the location of the boundary line in the cause of action filed by the McNeills. On the basis of this affidavit, it is apparent that the issue of the boundary line was not litigated and that Carlton Izard refused to litigate this issue. Because of the refusal of the Izards to litigate the boundary line in the former cause of action of trespass on the basis of arguments diametrically opposed to the arguments on which the respondent now relies, it would be inherently unfair and unjust to invoke the doctrine of res judicata at the respondent’s request in the current case. Therefore, we find that the circuit court properly denied the respondent’s motion to dismiss under the doctrine of res judicata.

We also note that the doctrine of collateral estoppel is not appropriate in this case. For the doctrine to be applicable, the actual issue must have been litigated in the prior adjudication. (Lady v. Montgomery Ward & Co. (1980), 80 Ill. App. 3d 69, 399 N.E.2d 346.) As we determined previously, the exact issue was not litigated in the two lawsuits, and the doctrine of collateral estoppel is not applicable.

The second issue raised by the respondent is that the circuit court lacked subject matter jurisdiction to appoint the commission of surveyors. The basis of her argument is the same as for her motion to dismiss under section 2 — 615, i.e., that the statute was not to be used for the purpose of appointing a commission of surveyors to establish new boundary lines and corners. In other words, the court exceeded its statutory authority in appointing the commission. Given our decision in the prior issue of the motion to dismiss, the respondent’s argument that the court lacked subject matter jurisdiction must fail. We concluded previously that the commission was not establishing new boundaries and comers but was reestablishing an existing interior boundary line based upon the government’s original exterior boundaries and corners. Additionally, the statute grants the court the authority to appoint a commission when there is a dispute as to an established boundary line. The circuit court had jurisdiction to appoint a commission of surveyors in this case.

The last issue raised by the respondent is that the court’s approval of the commission of surveyors’ report and acceptance of the commission’s plat of survey was against the manifest weight of the evidence. The respondent asserts that because the commission of surveyors failed to give credence to the acts and testimony of interested land owners, competent surveyors, and other record evidence concerning the boundaries and corners previously established, the commission’s report and plat of survey were against the manifest weight of the evidence.

According to the case law, to conduct a survey of a disputed boundary line, a surveyor must first establish the exterior lines and corners of the section according to the original survey of the United States government and the government’s corresponding field notes. (Vinyard v. Vaught (1985), 138 Ill. App. 3d 641, 485 N.E.2d 1131.) Further, the original lines, comers and boundaries established by the government survey are unchangeable. (Dorsey v. Ryan (1982), 110 Ill. App. 3d 577, 442 N.E.2d 689.) There are no set rules, beyond these basic principles, which mandate a specified surveying procedure, (Vinyard v. Vaught (1985), 138 Ill. App. 3d 641, 485 N.E.2d 1131.) We do not find that the commission of surveyors’ survey of the disputed boundary line violated these principles.

At the hearing on the respondent’s objection to the commission of surveyors’ report, Philip Huskey testified that he was one of the surveyors appointed by the court for this case. The other two surveyors appointed to the commission with him were Gale Hake and Buddy McEvers. It was Huskey’s understanding that the commission’s task was to survey and establish the boundary line between the east and west halves of the northwest quarter of section 4, township 3 south, range 9 west, and to show this boundary in relation to an existing gravel road.

Huskey explained that the survey was begun by first obtaining all the records they could find. They obtained the records from the courthouse in Monroe County, the records of surveyor David Sherrill, and the records of surveyor Les Benoy. Sherrill had surveyed this same boundary at the request of the respondent and her husband, and Benoy had surveyed this boundary at the request of the Kelches.

After obtaining the records, Huskey and his fellow commissioners went to the field to see what physical evidence of established corners they could find. According to Huskey, to survey the disputed boundary appropriately, the commission had to locate the existing outside government corners of the section in order to divide the northwest quarter of section 4. As a result of their search of the area, the commission located monuments at the west quarter corner of section 4 (an iron fence), at the south quarter corner of section 4 (an old stone), and at the southeast comer of section 4 (an old iron rod). Based upon reference documents, the commission determined that the east line boundary of section 4 intersected with the north line boundary of U.S. Survey 722. A stone on the north line of U.S. Survey 722 marked the spot where the east line of section 4 intersected the north line. The reference documents used by the commission also indicated that the east quarter comer of section 4 was 132 feet north of this stone. Thus, the commission reestablished the east quarter corner of section 4 by coming up 132 feet from the stone monument. At the end of their physical search, the commission had found the east quarter corner, the west quarter comer, and the south quarter corner of section 4. According to Huskey, their only remaining problem was to locate the north quarter comer, since they had found no physical evidence locating this corner. Huskey explained that, under the original government surveys, the only comers established by the government were the quarter corners of a section. He also explained that if there was an error in the government’s setting of a quarter comer, a surveyor cannot correct the error but must accept it. However, these same rules do not apply to the comers established by independent surveys.

In order to facilitate an understanding of Huskey’s testimony, the following line drawing is provided to show where the quarter corners are on a section. It must be noted that this line drawing is not drawn to scale but is simply for explanatory purposes.

SECTION 4

To establish the north quarter comer, Huskey testified that their research showed that it had been the practice of the county surveyor in the early and mid-1800’s to use as a common comer the quarter corner for the section above or the section below. Therefore, the commission concluded that the quarter corner of section 33 (the section above section 4) was the same corner for the north quarter corner of section 4. Based upon information from when the townships were originally laid out, the commission knew that stones were placed along the township lines every half mile. With guidance from these markers and the knowledge of the common quarter corners, they went to where they thought the south quarter corner of section 33 might be and dug two feet below the road surface running along the north line of section 4. In this spot, they found an old sandstone monument that they determined was the south quarter corner of section 33 and, correspondingly, the north quarter corner of section 4.

After locating the north quarter comer of section 4, the commission, pursuant to Federal instructions, then intersected section 4 by running lines from the east quarter corner to the west quarter corner and from the north quarter corner to the south quarter corner to establish the center of section 4 and to divide section 4 into the four quarters. Thus, the commission established the east and the south boundary lines of the northwest quarter of section 4.

Huskey further testified that the next problem the commission encountered was the establishment of the northwest corner of section 4. This corner caused problems as the information provided from prior surveys was conflicting as to the location of this corner. Huskey stated that according to Robert Gardner’s 1955 survey of this area, there was a stone in this corner; however, the commission was unable to locate this stone. To locate this corner, the commission established the southwest corner of section 33, and from the government maps, it was evident that the northwest corner of section 4 was “0.18 change [sic], which is 11.88 feet” from the southwest corner of section 33. Therefore, the commission came 11.88 feet east from the southwest corner of section 33 and set the northwest corner of section 4 there. From the northwest corner, the commission was able to arrive at the north boundary and the west boundary of the northwest quarter of section 4. After establishing the boundaries of the northwest quarter of section 4, the commission divided the east and west halves of the quarter proportionately. The location of the boundary in relation to the roadway established that the roadway started on the Izard property at the north end of the east-west boundary, but moved onto the Kelch property at the south end of the disputed boundary.

Huskey explained that earlier surveys did not necessarily conform to the commission’s survey, but that the other surveys likewise did not conform to each other. He also explained that if any of the boundary markers of previous surveys had been used, the western boundary of the northwest quarter would have moved eastward, invading the Izard property even more. On cross-examination, Huskey admitted he did not use the Gardner survey because Gardner had not followed government procedures in his survey.

Robert Gardner testified that he had surveyed the boundary in dispute in 1955. In his survey, he had had to locate the northwest corner of section 4. At that time, he had found an iron pin in that corner. From the northwest corner, he ran a line down to the southwest corner of section 4, picking up whatever comers he could. Gardner explained he ran the line “picking up the points as we came across them and adjusting the line to fit the points that were left.” Gardner stated he got the “points” from his father’s survey. Gardner admitted that if the T-post at the northwest corner was used as the location of that corner, the boundary between the east and west halves of the northwest quarter would move 3.89 feet east, farther into the Izard property.

Also at this hearing, Carlton Izard, Frederick Kelch and Elmer Schneider (a neighbor to the south of the Izard property) testified. Their testimony will not be reiterated as their statements did not substantiate or negate any of the evidence presented regarding the commission’s survey.

After hearing this testimony, the court determined that the petitioners had established the disputed boundary line by a preponderance of the evidence. The court approved the commission’s report of the survey and accepted the commission’s plat of the survey. As was noted previously, the court also ordered that the plat of the survey be recorded in the office of the recorder of deeds.

From the foregoing evidence, we find that the court’s approval of the commission’s survey and the acceptance of the plat of survey were not against the manifest weight of the evidence. A review of the evidence indicates that Huskey followed the accepted principles of establishing the original government corners first and then locating the disputed boundary line in accordance with these corners.

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

Affirmed.

HARRISON and WELCH, JJ., concur.