author: JUSTICE LINN

text:
    JAMES VOS, Plaintiff-Appellant, v. THE TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—0567
    Opinion filed June 30, 1992.

      Wojcik & Wojcik, of Chicago (William S. Wojcik, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, Michael A. Pollard, and Ronald L. Ohren, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

James Vos, plaintiff, was injured at his father’s service station when he was struck by a customer’s van. The vehicle lurched into Vos shortly after his father had driven it into a bay for service. Vos filed suit to recover insurance proceeds from the uninsured motorist provision of a policy owned by his father and issued by defendant, The Travelers Insurance Company (Travelers). The pertinent coverage issue involves language stating that an “uninsured motor vehicle” does not mean the insured’s car or a “non-owned car while being operated by [the insured].” Vos argued that because his father had left the van at the time it moved, it was not “being operated” by his father. Therefore, Vos contended that his claim fit within the uninsured motorist coverage of the insurance policy.

The trial court rejected Vos’ construction and held that the van was in fact being operated by Vos’ father at the time of the incident. Accordingly, the court entered judgment as a matter of law in favor of Travelers and against Vos on his cross-motion for summary judgment.

On appeal, Vos urges us to reverse the trial court and enter judgment in his favor either by finding that his father was not operating the van or by finding the policy language ambiguous and then construing it in his favor.

We affirm.

Background

On January 6, 1988, Vos was working at his father’s service station in Evergreen Park, Illinois. Customers left keys to their cars so employees of the station could move them as needed for service. In his deposition, Vos’ father testified that when a customer’s vehicle was to be serviced, an employee would drive it into one of five service bays. Customers were not allowed to drive their own cars into the bays.

On January 6, Vos’ father had driven a customer’s van into a bay for a tune-up. He testified that he left the van “on high idle” when he got out, but did not recall whether he put the van in “park” or set the emergency brake. His intention was to immediately perform a tune-up and he was either closing the door or going for tools when the van moved forward and pinned his son’s leg against another vehicle. Vos’ father testified that he was four or five feet from the van when the accident happened.

Travelers had issued a personal automobile liability policy to Vos’ parents, which was in effect at the time Vos was injured. The policy provides several coverages. Under the uninsured motorists coverage, Vos is an insured because he fits the definition of a “relative, residing in [the named insured’s] household.” In pertinent part, the policy states:

“[Travelers] will pay damages that the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury suffered by the insured and caused by accident. Liability for such damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.” (Emphasis added.)

The uninsured motorist coverage defines what is and is not an “uninsured motor vehicle.” This definitional provision, upon which the appeal turns, states that an uninsured motor vehicle is

“a highway vehicle or trailer of any type *** insured by a company which denies coverage ***. However, an uninsured motor vehicle does not mean: 1. Your [named insured’s] car, a non-owned car while being operated by you, or any vehicle furnished or available to you or a relative for regular use.” (Emphasis added.)

Under this language, if the named insured (Vos’ father) is deemed to be operating a car he does not own (the customer’s van), at the time the accident occurred, Vos’ claim must be denied because the van involved in the collision would be excluded from the definition of uninsured motor vehicle.

Vos notified Travelers of his claim, stating that his injuries were covered by the uninsured motorist provisions of the policy issued to his parents. Travelers declined coverage, however, explaining in a letter that the uninsured motorist provision of the policy did not come into effect. The letter gave alternative grounds for denying coverage, first stating that insurance proceeds were payable only for damages that the insured was “legally entitled to recover from the owner or operator of an uninsured motor vehicle.” The van’s owner was not legally responsible for Vos’ injuries and, according to the letter, there was no “operator.” In the alternative, if Vos’ father was considered to be the van’s operator, coverage would still be denied because an insured cannot recover if the nonowned car was being operated by the named insured at the time of the accident.

Vos filed the pending declaratory judgment action seeking a judicial determination that his injuries were covered under the policy. The parties filed cross-motions for summary judgment, and the trial court ruled in favor of the insurance company, stating, “[The court is] convinced that [plaintiff’s] father was operating this [vehicle] at [the] time the incident occurred.”

Opinion

On appeal, Vos focuses on a narrow interpretation of the phrase “while being operated.” He contends that his father was not literally in physical control of the van when it moved forward, and therefore, he was not operating it. Alternatively, he maintains that the policy language is ambiguous and should be construed in his favor.

To support his position, Vos quotes dictionary definitions of the words “while,” “being,” and “operated.” He also cites an excerpt from 6B J. Appleman, Insurance Law & Practice §4314 (1979), to the effect that the “better” definition of “operating” is that it “involves personal physical management of the automobile by the person in question.” (Cf. Republic Insurance Co. v. Haverlah (Tex. Civ. App. 1978), 565 S.W.2d 587, 589 (Appleman definition of “personal physical management” is not restricted to literal physical presence in the driver’s seat while manipulating the controls).) Vos urges this court to accept as the ordinary and popularly understood meaning of the phrase “while being operated” as “happening or occurring during the immediate time that the vehicle could be physically worked, controlled, or acted upon by JAMES VOS, SR.”

Undoubtedly, if Vos’ father had been at the wheel when the accident occurred, he would have fit squarely within the above definition of operating the van and there would be no question whatsoever that the uninsured motorist coverage would not apply in this case. The sole issue, then, is whether the trial court erred in construing the key phrase more broadly than actual, physical control of the van while it was moving.

In Collins v. Economy Fire & Casualty Co. (1981), 96 Ill. App. 3d 796, 798, 422 N.E.2d 74, 75, this court recognized that “Illinois has construed the act of operating to be broader than that of driving.” For that proposition, the court cited two decisions that we believe are controlling on the issue of whether Vos’ father was “operating” the van at the time it struck Vos: Heritage Insurance Co. of America v. Phelan (1974), 59 Ill. 2d 389, 321 N.E.2d 257, and Vesely v. Prestige Casualty Co. (1972), 4 Ill. App. 3d 726, 281 N.E.2d 724. In Heritage, the Illinois Supreme Court upheld as valid and enforceable a provision in an automobile insurance policy that expressly denied coverage for a named individual, Phelan, as an “operator.” Phelan, a 19-year-old male, was injured at a service station by an uninsured motorist whose car struck Phelan while he was standing next to his own uninsured vehicle. Phelan, who had stopped at the service station for minor maintenance to his car, was assisting the attendant at the time he was injured. The court held that because Phelan had been specifically named as an excluded operator under his parents’ policy, the uninsured motorist provision did not apply.

In Vesely, the plaintiff was named in his father-in-law’s automobile insurance policy as an excluded operator. The plaintiff left the engine of his automobile running while he went inside a store to purchase liquor. His father-in-law remained in the car, as a passenger. While plaintiff was making his purchase, the car was involved in a serious collision. The court ruled that insurance proceeds were not payable under the policy because the accident occurred during plaintiff’s operation of the vehicle.

The Vesely court had little problem determining that leaving a vehicle while the engine is running constitutes a continued operation of the vehicle. As the court pointed out, “operate” is “not limited to a state of motion produced by the mechanism of the car.” (4 Ill. App. 3d at 728, 281 N.E.2d at 725.) We believe that the facts of the pending case are analogous to those in Vesely, and under the reasoning of that decision, we hold that Vos’ father was operating the van, even after he stepped away from it, because he drove it into the bay and left the engine running.

Vos maintains, nevertheless, that neither Phelan nor Vesely is controlling because, in each case, the individual who was specifically named and intended to be excluded from coverage was “the driver [who had] temporarily stopped the car for a few minutes, intending to resume driving it.” In other words, the excluded driver’s operation of the car was only briefly interrupted for a stop that was incident to the continued driving of the vehicle. Vos argues that his father was not in the same situation as the drivers in Phelan and Vesely because he was only driving the van into a service bay for the purpose of maintenance, rather than using it as a means of transportation.

Although we agree with Vos that his father’s driving of the van was only incidental to performing a tune-up, we do not agree that this fact distinguishes the case from Phelan and Vesely. Why he was driving is irrelevant. The exclusionary language of the uninsured motorist coverage only states that a “non-owned vehicle while being operated” by the named insured is not an “uninsured motor vehicle.” Without an uninsured motor vehicle, there is no uninsured motorist insurance coverage.

If Vos’ father was not operating the van at the time of the occurrence, no one was. As Travelers stated in its letter declining coverage, payment under the uninsured motorist coverage would be made only for those damages that the insured was legally entitled to recover from the owner or operator of an uninsured vehicle. Consequently, if Vos could not recover damages from the owner or operator of an uninsured vehicle, Travelers had no liability. In this case, the underlying negligence action did not join the van’s owner. The sole ground for recovery would be against the van’s operator, Vos’ father. Under Travelers’ policy, however, if the named insured was operating the van, the coverage did not apply.

In our view, there is no doubt that Vos’ father was the operator of the van during the critical time. He took the keys and started the van, drove it into the bay, and left it in high idle while he stepped away briefly, intending to immediately return. Indeed, Vos’ complaint admits the existence of an operator of the van because it alleges that Vos’ injuries resulted from the negligent acts that “an operator of an uninsured motor vehicle” committed, including one or more of the following: leaving the motor vehicle unattended while its engine was left running (in violation of a statute); failing to set the emergency brake; failing to engage the transmission completely into a parking position before leaving the vehicle; or failing to set appropriate blocks under the front wheels while the engine was running and the vehicle unattended.”

We believe that the trial court’s ruling correctly disposed of the matter. Vos, however, insists that finding his father to be the van’s “operator” does not end the analysis. According to Vos, there is a legaily significant distinction between the noun “operator” and the verb “operate,” for purposes of his claim. He contends that he is covered under the policy because his injury did not occur while his father was operating the van. Therefore, he maintains, his father may have had the “role” of an “operator,” but he was not “operating” the van at the time of the accident. Vos analogizes the situation to that of a surgeon who, after leaving the operating theater, is no longer operating, but remains, nonetheless, a surgeon.

We find this argument confusing and unpersuasive. The sole, support Vos cites in favor of the noun/verb dichotomy apparently comes from a remark the Illinois Supreme Court made, in Phelan, during its discussion of the validity and effect of the “named operator exclusion.” The court noted that the exclusion did not mention the “operation” of the insured vehicle or any particular vehicle but simply named Phelan as an “operator.” The court further observed that the term “operator” is not synonymous with “driver.” (59 Ill. 2d at 399.) While Vos apparently believes the reference to “operation” assists his theory, we read the court’s comments as meaning that a car may be operated in ways that are not limited to the acts commonly understood as “driving.” Hence, to give effect to Phelan’s exclusion from coverage as a named “operator,” it was not necessary for Phelan to be at the controls of the car at the time of the occurrence. The fact he was standing next to his car when another car hit him did not affect the court’s conclusion that he was the “operator” that the insurance policy intended to exclude from coverage.

We see no way that Vos’ position is aided by Phelan. On the contrary, the decision supports Travelers’ position. Vesely is even more on point, and that opinion demonstrates that the inquiry as to whether a vehicle is being operated by someone is not limited to his or her physical manipulation of the controls. In the pending case, the only person who had exercised control over the operation of the van just preceding the accident was Vos’ father. He was thus involved in the personal physical management of the vehicle under the Appleman definition of “operating.”

The law in other States, moreover, supports the rationale of Vesely. In Republic Insurance Co. v. Haverlah (Tex. Civ. App. 1978), 565 S.W.2d 587, for example, the court reviewed facts similar to those of the pending case and cited Vesely and Phelan with approval. The ultimate issue in Haverlah was whether the insurance company was liable on an insurance claim for damage sustained by an airplane when the pilot left the engine idling and climbed out to place chocks in front of the wheels in anticipation of maintenance. Under the terms of the coverage, damage to the plane was recoverable if it occurred while the aircraft was in motion under its own power, as long as the designated pilot was “operating” the aircraft.

The court, noting that the pilot was the person in charge throughout, rejected an argument (similar to Vos’) that the plane was not being operated because the pilot had left the plane at the time it rolled into trees. The Haverlah court analogized to automobile cases in which a party’s absence from the driver’s seat did not preclude a finding that the insured was operating the automobile. The Texas court concluded that the pilot in the case before it “continued to operate the aircraft” even while he was away fetching wheel chocks in preparation for maintenance. See also Stephens v. Cottingham (1960), 237 S.C. 108, 115 S.E.2d 505 (A vehicle could be considered in operation even if it was parked at a service station or a restaurant while the driver was eating lunch).

We conclude that the trial court correctly construed the policy in issue and properly entered judgment in favor of Travelers. We do not find the policy language ambiguous. The undisputed facts indicate that the named insured, Vos’ father, was at the relevant time chargeable with operating the van. As the trial court commented, as “soon as Vos’s father climbed in the van and turned the key, he started operating it. *** He was turning a dead object into a live object. And he got out and left the engine running. He left the same operation going that existed when he turned the keys on. When he walked away, he did not divest himself of control to anybody else.”

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

Affirmed. '

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


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
      In re ESTATE OF JESSIE LEVIN, Deceased (Daniel Murphy, Adm’r of the Estate of Jessie Levin, Deceased, et al., Plaintiffs-Appellants, v. American National Bank and Trust Company of Chicago et al., Defendants-Appellees).
    First District (4th Division)
    No. 1—91—0924
    Opinion filed June 30, 1992.
    Albert Koretzky, of Chicago, and Gerald J. Mannix, of DiMonte & Lizak, of Park Ridge, for appellants.
    Michael M. Conway and Jennifer M. Baratta, both of Hopkins & Sutter, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, the administrator of the estate of Jessie Levin and her heirs at law, appeal the dismissal of their complaint. The complaint alleged that the defendants individually, and as trustees under the will of Edward Levin, had deprived the plaintiffs of Jessie Levin’s interest in two parcels of real estate. According to the plaintiffs’ construction of Edward Levin’s will, the property was devised outright to Jessie Levin and since she died intestate, that property devolves to her heirs at law. The defendants contend that the real estate was not devised outright to Jessie, but rather, was a part of the corpus of a marital trust which upon Jessie’s death was devised to the then living heirs of Earl Deutsch.

Edward Levin died on July 2, 1982, and Jessie Levin died intestate on January 26, 1989. Pursuant to Edward’s will, the American National Bank and Trust Company of Chicago and Earl Deutsch were named co-trustees of the marital trust. The pertinent portions of Edward’s will are as follows:

“ARTICLE I
Gifts of Specified Property * * *
1.3 Kenmore Properties. I now own two six flat apartment buildings known as 5637-39 N. Kenmore and 5641-43 N. Kenmore, both in Chicago, Illinois. I give an equal undivided interest in each building (whether real or personal property) to those of the following who are living 30 days after my death:
(a) My spouse
(b) EARL A. DEUTSCH; and
(c) JOSEPH DRESSELL.
The interests given to my spouse under this Section shall not be distributed outright to my spouse, but shall be distributed to the Trustee of the Marital Trust and administered as provided
in Article II.
* * *

1.5 Gift of 5650 N. Sheridan Road. I own 821/2% of the beneficial interest in Land Trust No. 14763 at American National Bank and Trust Company of Chicago, which owms the property commonly knowm as 5650 N. Sheridan Road, Chicago, Illinois. I make the following gifts of my interest in said Land Trust so that each of the following beneficiaries, if living on the 30th day after my death, will own 45% of the beneficial interest in said Land Trust (including 7V2% currently owned by EARL A. DEUTSCH):

(a) 45% of the beneficial interest in said Land Trust to my spouse, if living on the 30th day after my death; and
(b) 371/2% of the beneficial interest in said Land Trust to EARL A. DEUTSCH, if living on the 30th day after my death.

The interest given to my spouse under this Section shall not be distributed outright to my spouse, but shall be distributed to the Trustee of the Marital Trust and administered as provided in Article II.

* * *

ARTICLE II
Marital Trust
2.1 Gift of Net Residuary Estate. If my spouse survives me, I give my net residuary estate to the Trustee to be held as the principal of the Marital Trust for the benefit of my spouse (the ‘primary beneficiary’). ***
2.2 Distribution of Income. The Trustee shall distribute to my spouse all the net income of the Marital Trust in convenient installments not less often than quarterly. Notwithstanding any other provision, all income of the Marital Trust accrued or undistributed at the death of my spouse shall be paid to my spouse’s estate.
* * *

2.5 Special Concern for JESSIE. My primary concern is that my wife of so many years, JESSIE, be well provided for after my death. With that in mind, I have asked my close and personal friend, EARL A. DEUTSCH, to assume major responsibility for the health and well-being of JESSIE in his role as Trustee of the Marital Trust as long as she shall live.

2.6 Termination of Marital Trust. Upon the death of my spouse, the Trustee shall distribute the then principal of the Marital Trust in shares per stirpes to the then living descendants of EARL A. DEUTSCH subject to the withholding provisions of Section 3.2.

* * *
ARTICLE VIII
Definitions * * *
8.3 Residuary Estate and Net Residuary Estate. ‘My residuary estate’ means all the residue of my estate wherever situated, including lapsed legacies and devises, but not including any property over which I have a power of appointment. ‘My net residuary estate’ means that part of my residuary estate remaining after any required payments of Death Taxes, expenses and debts, and distributing any specific assets or specific sums of money.”

The issue in this appeal is whether the trial court properly granted the defendants’ motion for judgment on the pleadings under the facts of this case. The defendants moved to dismiss the pleadings pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), asserting that the claim is barred by the express terms of the will. Under a section 2 — 615 motion, the trial court must examine all pleadings on file, taking as true the well-pleaded facts, and reasonable inferences to be drawn therefrom, set forth in the opposing party’s pleadings. (Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 582 N.E.2d 120.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiffs to recover. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.

When construing a will, a court is to determine the intent of the testator and to give effect to that intent. (Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251.) In ascertaining that intent, the court should look primarily to the language that is used in the will and the wording of the document as a whole. First National Bank v. Singer (1990), 192 Ill. App. 3d 745, 549 N.E.2d 940; In re Estate of Offerman (1987), 153 Ill. App. 3d 299, 505 N.E.2d 413.

If the language of a will is clear and unambiguous, an action for will construction is properly dismissed. (Jusko v. Grigas (1962), 26 Ill. 2d 92, 186 N.E.2d 34.) However, where there are latent ambiguities in the will, extrinsic evidence will be considered to determine the intent of the testator. Krog v. Hafka (1952), 413 Ill. 290, 109 N.E.2d 213.

The defendant contends the trial court properly dismissed the plaintiff’s complaint because Edward’s will is unambiguous. We do not agree.

Edward’s will was attached to the pleadings. From the language in article I, sections 1.3 and 1.5, one could conclude that it was Edward’s intent to “give” Jessie “an equal undivided interest” in the properties. The specific assets “given” to Jessie were then to be “distributed to the Trustee of the Marital Trust and administered as provided in Article II.” It was plausibly Edward’s intent to distribute Jessie’s assets, which he intended for her to own outright, into the marital trust only for purposes of administration of the assets by the trustee during her lifetime.

Also referring to the language of the will, we note that under article II, section 2.1, Edward gave his “net residuary estate” to the trustee to be held as “principal of the Marital Trust for the benefit of my spouse.” In article VIII, section 8.3, Edward defines “net residuary estate” as “that part of my residuary estate remaining after any required payments of Death Taxes, expenses and debts, and distributing any specific assets or specific sums of money.” One could conclude that it was Edward’s intent to exclude the specific assets, namely, the properties he gave outright to Jessie, from the principal of the marital trust. Thus, when Edward distributed the principal of the marital trust “in shares per stirpes to the then living descendants of EARL A. DEUTSCH,” as provided for in article II, section 2.6, it may have been Edward’s intent to exclude the properties which he gave to Jessie in article I.

We therefore conclude that there is a set of facts which could be proved which would entitle the plaintiffs to recover. Construing the pleadings most strongly against the defendants, we believe the defendants have not proved that Edward’s will is unambiguous. Thus, we find the trial court erred in granting the defendants’ section 2— 615 motion to dismiss.

We next address the plaintiffs’ contention that the trial court erred in granting the defendants’ section 2 — 619(a)(4) motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(4)) to dismiss the portions of the plaintiffs’ complaint which sought an accounting for the defendants’ administration of the income from the trusts set up under Edward’s will. The defendants alleged in their motion that this cause of action was barred by a prior judgment, that is, by the closing of Edward’s estate on November 29, 1988. Jessie approved the final account at that time.

The final account of Edward’s estate specifies the amount of money received from the sale of Jessie’s properties and merely states that the money was distributed to the trustee of the marital trust and administered according to the terms of the trust. The judgment does not address the issue raised in this proceeding which is whether the property was given to Jessie and administered by the trustee, or whether the trustee was entitled to the proceeds. Consequently, since the issue was not determined, it should not have been dismissed pursuant to the defendants’ motion.

Finally, in light of our decision, we need not address the plaintiffs’ final contention that the trial court erred in denying its motion to amend.

For all of the aforementioned reasons, we reverse the decision of the trial court.

Reversed and remanded.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE McMORROW

text:
    TIA MARIE GIACALONE, a Minor, by her Mother and Next Friend, Jeanette Giacalone, Plaintiff-Appellant, v. THE CHICAGO PARK DISTRICT, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—1564
    Opinion filed June 30, 1992.

      Richard Cohen, of Chicago, for appellant.
    Fraterrigo, Best & Beranek, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

This is an appeal from the denial of plaintiff’s motion to amend her complaint in a personal injury action. Plaintiff contends that the trial court abused its discretion in denying her leave to amend prior to hearing and granting defendant’s motion for summary judgment.

On April 23, 1986, plaintiff, Tia Marie Giacalone, by her mother and next friend, Jeanette Giacalone, filed a one-count complaint against defendant, the Chicago Park District. The complaint sought damages for injuries suffered by plaintiff when she fell off of a balance beam at a park field house on October 20, 1983, when plaintiff was 11 years old. The complaint alleged negligent supervision by defendant and the negligent failure to provide a mat under the balance beam. Defendant filed an answer denying the material allegations of plaintiff’s complaint.

On September 11, 1990, defendant filed a motion to strike and dismiss paragraph 5(e) of the complaint alleging negligent supervision on the ground that as a public entity it was statutorily immune from liability for the failure to supervise activities on or the use of public property (111. Rev. Stat. 1989, ch. 85, par. 3 — 108). On December 11, 1990, the trial court granted defendant’s motion to strike paragraph 5(e), and granted plaintiff 28 days to replead.

Prior to that order, on December 3, 1990, defendant filed a motion for summary judgment on the remainder of plaintiff’s complaint. Attached to the motion were excerpts from plaintiff’s deposition, in which she stated that she was in defendant’s advanced gymnastics class; that she appreciated the risk of falling off the balance beam; and that there were mats underneath the beam at the time of her fall.

On December 19, 1990, the trial court entered an order allowing plaintiff 28 days, to January 16, 1991, to respond to defendant’s motion for summary judgment, and 14 days for defendant to reply. The matter was set for a status hearing on February 5, 1991. On January 15, 1991, plaintiff filed a notice and motion for leave to present an amended complaint on February 5, 1991. Count I of the amended complaint attached to the motion alleged that defendant negligently provided mats which were not fit and proper for use under the balance beam, and that the defective mats constituted a dangerous condition which was the proximate cause of plaintiff’s injuries; that defendant failed to warn plaintiff of the danger and failed to provide proper class instruction in the use of its equipment. Count II alleged that defendant was aware that gymnastics is an extremely dangerous activity, and that defendant acted wilfully and wantonly in allowing plaintiff to begin her gymnastics without proper instruction and assistance, knowing that the mats were defective; in failing to warn plaintiff of the danger of participation without proper instruction and assistance; and in failing to warn plaintiff of the dangerous condition created by the defective mats. Plaintiff also presented an excerpt of plaintiff’s deposition in which she stated that the mats under the balance beam on the date of her injury were old, thin and torn open.

Counsel for plaintiff did not appear on February 5, 1991, and the matter was continued to March 1, 1991. On February 28, 1991, the parties met for a pretrial conference before a judge sitting in the stead of the judge to whom the case was assigned. On March 1, 1991, an order was entered continuing defendant’s motion for summary judgment to March 27, 1991, apparently due to the failure of plaintiff’s counsel to appear. The order, drafted by defense counsel, did not include mention of plaintiff’s motion for leave to file an amended complaint.

On March 27, 1991, when defendant commenced its argument on the motion for summary judgment, plaintiff pointed out that she had filed a motion for leave to amend the complaint to allege that although there were mats under the balance beam they were defective and that defendant failed to provide proper class instruction on the use of equipment, and to add count II alleging wilful and wanton misconduct. Defendant objected to the allowance of an amendment on the ground that it was untimely and prejudicial because it presented a new claim and theory of recovery. The trial court stated that the only motion set for hearing that day was defendant’s motion for summary judgment and chose to proceed on that motion before considering plaintiff’s motion for leave to file the amended complaint. The court then ruled that because plaintiff had failed to file a response to defendant’s motion for summary judgment, and because plaintiff’s deposition contradicted the allegations of her complaint, defendant was entitled to summary judgment. The court then stated that plaintiff’s presentation of a new theory of recovery several years after the incident was unfair and prejudicial to defendant, and denied plaintiff’s motion for leave to file the amended complaint.

On April 22, 1991, plaintiff filed a motion for reconsideration, for vacatur of summary judgment and for leave to file the amended complaint. At the hearing, on April 29, 1991, the trial court noted that summary judgment had been granted prior to the court’s ruling on the motion for leave to file an amended complaint. The court then denied the motion, and this timely appeal followed.

Plaintiff contends that the trial court abused its discretion in denying her motion for leave to file an amended complaint. Plaintiff argues that her motion was timely filed within the time to respond to defendant’s motion for summary judgment, and that justice requires that she be permitted to file the amended complaint.

The use of the summary judgment procedure is an aid in the expeditious disposition of cases. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211.) However, summary judgment is a drastic remedy and should be granted only when the right of the moving party is clear and free from doubt. (Loyola Academy, 146 Ill. 2d at 271; Evans v. United Bank (1992), 226 Ill. App. 3d 526, 598 N.E.2d 933.) In determining whether summary judgment is proper, the court must construe the pleadings, depositions, affidavits and admissions on file strictly against the moving party and in favor of the party opposing the motion. Loyola Academy, 146 Ill. 2d at 271.

In Loyola, the supreme court allowed an appeal from the denial of the plaintiff’s motion to file an amended complaint following the entry of summary judgment for the defendants. In reversing the appellate court (Loyola Academy v. S & S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 804, 556 N.E.2d 586 (McMorrow, P.J., dissenting)), which upheld the order denying the plaintiff’s motion to amend, the supreme court reaffirmed the precedent established by Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, and decisions following Kupianen (see e.g., Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728; Evans v. United Bank (1992), 226 Ill. App. 3d 526, 598 N.E.2d 933).

The court observed that section 2 — 1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(g)) (the Code) provides that the trial court shall permit pleadings to be amended upon just and reasonable terms before or after the entry of summary judgment. This section is to be liberally construed in order to further the ends of justice (Ill. Rev. Stat. 1989, ch. 110, par. 1—106) and reaffirms the power of the court to permit amendments to pleadings at any time, as mandated by section 2—616(a) of the Code (Loyola Academy, 146 Ill. 2d at 272-73). Section 2—616(a) provides in part:

“At any time before final judgment amendments may be allowed on just and reasonable terms *** changing the cause of action *** or adding new causes of action *** in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a).)

Section 2—616(c) further states:

“A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuances that may be just.” Ill. Rev. Stat. 1989, ch. 110, par. 2-616(c).

The court in Loyola restated the four factors first delineated in Kupianen which the trial court should consider in deciding whether an amendment should be permitted and which a reviewing court should apply in determining whether the trial court abused its discretion in denying a proposed amendment. Those factors are: whether the proposed amendment would cure the defective pleading; whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; whether the proposed amendment is timely; and whether previous opportunities to amend the pleading could be identified.

Applying these factors to the case at bar, we conclude that the trial court should have granted plaintiff’s motion to file her amended complaint. With respect to the first factor, we find that plaintiff’s proposed amended two-count complaint would have cured the defect in the original one-count complaint. The original complaint alleged that defendant did not provide mats for use under the balance beam for the protection of gymnasts. However, in her deposition, plaintiff stated that there were mats under the balance beam at the time of her injury and fall. The proposed amended complaint cured the defective pleading by alleging that defendant failed to provide a “proper and fit” mat and that the defective condition of the mats constituted an unreasonable danger of which defendant knew or should have known and should have warned plaintiff. This allegation conformed, in substance, to plaintiff’s deposition testimony that the mats under the beam were old and thin and torn open, exposing the padding inside. We therefore find that the amended complaint.would have cured the defect in the original pleading upon which summary judgment was granted. The proposed amended complaint also alleged that defendant failed to provide proper instruction regarding use of the gymnasium equipment, and it contained an additional count alleging that defendant’s misconduct was wilful and wanton.

Next, contrary to the trial court’s view, we do not believe that permitting plaintiff to file her amended complaint would be unfairly prejudicial to defendant. As the court stated in Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 896, 515 N.E.2d 728, 731, “no unfair prejudice or surprise could have resulted to [defendant] since the case was still in the pleading stage.” In Siebert, the motion for leave to file an amended complaint was first presented to the court at the time the motion to vacate the previously entered summary judgment was heard. See also Evans v. United Bank (1992), 226 Ill. App. 3d 526, 598 N.E.2d 933 (appellate court reversed the denial of plaintiff’s motion to file an amended complaint which was filed with plaintiff’s motion to reconsider the entry of summary judgment for the defendant); Kupianen v. Graham, 107 Ill. App. 3d 373, 437 N.E.2d 774 (reversing the denial of leave to file a proposed amendment to a counterclaim which was presented with a motion to vacate the order dismissing count III of the counterclaim).

In contrast, in the instant case, plaintiff’s motion for leave to amend was filed more than two months before the hearing on defendant’s motion for summary judgment. The proposed amendment was filed in lieu of but within the time allowed for a response to the motion for summary judgment. When counsel pointed this out to the court, prior to the commencement of the hearing on the merits of defendant’s motion for summary judgment, defendant’s counsel acknowledged that he had received plaintiff’s motion to amend “quite some time ago.” Defendant nevertheless objected, and the trial court agreed, that allowing the proposed amended complaint would be prejudicial because it changed the nature of the claim and the theory of recovery, i.e., from negligence to product liability.

From our reading of the proposed amended complaint, we believe that the theory of it is that defendant was negligent and/or wilful and wanton in providing mats which were defective in that they were not in fit and proper condition, rather than that they were inherently defective. Amendments which result in changes in legal theories are permitted (Ill. Rev. Stat. 1989, ch. 110, pars. 2—616, 2—1006(g)) and have been held not to create prejudice which warrants a denial of the proposed amendment. The proposed amended pleadings in Loyola Academy, Evans, Siebert, and Kupianen each contained different legal theories than those alleged in the original pleading. In each case, the reviewing court found that defendant was not unfairly prejudiced by the allowance of the proposed amendment. Plaintiff’s proposed amended complaint in this case was filed within the time allowed her to respond to defendant’s motion for summary judgment. As plaintiff pointed out to the trial court, it would have been futile to file a response in opposition to the motion for summary judgment which expressly relied on plaintiff’s deposition regarding the existence of mats to contradict the allegation in the complaint that no mats were provided. Defendant acknowledged having received a copy of the proposed amendment “quite some time” before the hearing on the motion for summary judgment, and the court was presented with a copy of the proposed amendment prior to hearing the merits of defendant’s motion. It cannot be said that defendant was surprised or prejudiced by the proposed amendment, or that the motion was not timely filed.

With respect to the final factor to consider, whether plaintiff had previous opportunities to amend, we reiterate that this case was still in the pleading stage. Prior to its motion for summary judgment, defendant’s only challenge to plaintiff’s complaint was a motion to strike and dismiss one paragraph alleging negligent supervision on the ground that defendant was statutorily immune, as a public entity, from liability for the failure to supervise activities on its premises or for negligent supervision. Defendant never filed a motion to dismiss the remainder of the complaint as being legally insufficient. Thus, the motion to file the proposed amendment in this case was plaintiff’s first opportunity and attempt to amend. Evans v. United Bank, 226 Ill. App. 3d at 535.

We find that plaintiff has satisfied the four-factor test established by Kupianen and reaffirmed by Loyola Academy as the proper standard to be applied in determining whether a proposed amendment should be allowed. We further find that the liberal application which is to be given the provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 1—106) warranted the allowance of plaintiff’s proposed amended complaint in order to permit her to effectively present her claim and to do substantial justice between the parties. The trial court should have exercised its discretion to allow plaintiff leave to file the amended complaint.

For the reasons stated, the order of trial court is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONATHAN WEST, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—1842
    Opinion filed June 30, 1992.

      James A. Graham, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

After a bench trial defendant Jonathan West was found guilty but mentally ill on charges of attempted aggravated criminal sexual assault, attempted criminal sexual assault, aggravated kidnapping and aggravated battery and was sentenced to 12 years in prison. Defendant contends that the trial court’s finding that he was guilty but mentally ill was against the manifest weight of the evidence, and the trial court utilized an improper standard in finding him guilty but mentally ill.

The victim testified that at 9 p.m. on May 12, 1990, she was walking home from a drugstore in her neighborhood when she noticed defendant following her. Defendant approached her and asked her if she knew the time. Defendant then came from behind her, placed his arms around her neck and pulled her into a parking lot. Defendant told her that he was going to kill her. She testified that she fell and defendant then dragged her, head first, into some bushes. She attempted to resist him, but he pulled her farther into the bushes. Defendant appeared to be carrying a weapon and threatened to kill her a second time. A struggle ensued with defendant unsuccessfully attempting to remove the victim’s clothes. During the altercation, the victim heard passersby and, after pulling defendant’s hand from her mouth, was able to call for help. Defendant immediately fled. Two men who had heard the victim’s call for help pursued defendant. The victim ran home, where she telephoned the police. When the police arrived, she saw defendant lying in the street and identified him as her assailant.

Juan James testified that he and several friends were walking past the location of the incident when he heard someone calling for help. Looking in the direction of the voice, he saw defendant on top of the victim in an empty lot. He observed defendant and the victim struggle, and defendant appeared to be trying to choke her. James ran toward the defendant, who fled, and then assisted the victim. After determining that she was in good condition, he pursued defendant, caught him and held him for police. Defendant resisted him and shouted at him that he was sorry.

Chicago police officer- William Galvan testified that he arrived at the scene of the incident shortly after it occurred. After taking statements from the witnesses, he gave defendant Miranda warnings. Defendant stated that he understood his rights, did not appear to have any difficulty understanding the officer, and the officer found him to be coherent. The police transported defendant to a hospital because defendant indicated that he was injured.

Dr. Gerson Kaplan, a psychiatrist, testified that he examined defendant on August 1, 1990, and determined that he was schizophrenic and unfit to stand trial. During his initial examination defendant was hyper, alert, suspicious and displayed severe thought disorder. When defendant spoke he made no sense. The doctor testified that defendant was a candidate for involuntary admission to a State mental hospital. He explained that a person suffering from a schizophrenic paranoid disorder may be lucid, able to understand what is happening in his environment, and able to answer simple questions regarding age and address. He noted that it was possible for such an individual to realize that he was committing an offense. The doctor examined defendant again on February 21, 1991, and determined he was legally insane at the time of the incident. He based his diagnosis on defendant’s medical history of three hospitalizations for mental illness prior to the incident, the last of which occurred only several weeks prior to his arrest, and the nature of the arrest incident. On cross-examination, Dr. Kaplan testified that he interviewed defendant for the first time three months after the incident. He further stated that defendant’s medical history indicated that he was first diagnosed as having an adjustment disorder which would not have rendered defendant either mentally ill or insane. He stated that it was logical to assume that defendant’s apology after the incident was an effort of a normal person to tell someone he was sorry for the act committed.

Dr. Albert Stipes, a psychiatrist, testified that he evaluated defendant on November 21, 1990, and found that with medication, he was fit to stand trial. He diagnosed defendant as a paranoid schizophrenic, meaning that defendant was confused, illogical, believed others were trying to harm him and had a thought disorder. Dr. Stipes evaluated defendant again on January 2, 1991, and found defendant was legally insane at the time the incident occurred. His diagnosis was based on defendant’s previous examinations and police reports, as well as the examinations conducted by Dr. Kaplan and himself. He also testified that a person suffering from this illness can commit an offense and immediately express remorse, and may be able to know his name and address. On cross-examination, Dr. Stipes stated that a paranoid schizophrenic is able to commit a crime and know he is committing a crime without being legally insane. He also testified that he made his evaluation without interviewing any witnesses to the incident or without talking with any other psychiatrists who had treated defendant. He testified that some paranoid schizophrenics may live a normal life without medication. He also stated that the disorder could be triggered by stress, such as committing a crime and being caught. The doctor testified that a normal person apprehended after committing a crime would demonstrate his knowledge of his wrongdoing by apologizing. Finally, he stated that it was highly likely that defendant, who had a high potential for violence, would repeat the type of behavior.

Police officer William Marley testified that at 10:30 p.m. on May 12, 1990, he went to Roseland Hospital to interview defendant. He advised defendant of his Miranda rights and defendant indicated that he understood his rights. Defendant told the officer that he had been involved in a fight with a girl on the street, they had fallen to the ground during the fight and he did not know how her bra and pants had become opened. Defendant also told him that he was not aware of how he came to be on top of the victim. Defendant said that he had a dispute with her former boyfriend in 1986 and this was his act of revenge.

In finding defendant guilty but mentally ill, the trial court stated:

“The Court is aware of the testimony of the two doctors[;] however, the Court finds particularly seeing the testimony of the lay witnesses which indicate[s] that the Defendant followed the complainant, that he concealed their presence by pulling her into bushes, that he was responsive to a statement made by the complainant, that he attempted to avoid detection by the citizens who arrived on the scene, that he fought back. The Court notes the citizens’ opinion that there was nothing unusual about the Defendant. The Court also notes that the Defendant was remorseful after his arrest as a response to warnings and to personal questions that were presented to him, he appeared to be lucid after his arrest and there was no evidence of bizarre conduct.
Based on all these factors the Court finds that he had substantial capability to appreciate the criminality of his conduct and to conform his behavior to the requirements of the law.”

Defendant contends that the trial court’s finding of guilty but mentally ill was against the manifest weight of the evidence. Initially the State contends that defendant waived this issue on appeal by failing to raise it either at trial or in a post-trial motion. However, in Illinois a defendant is not required to have objected at trial or filed a post-trial motion if he is challenging the sufficiency of the evidence. People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124.

Section 6 — 2(a) of the Criminal Code of 1961 states:

“[a] person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1989, ch. 38, par. 6—2(a).)

Where a defendant raises the affirmative defense of insanity, he bears the burden of proving by a preponderance of the evidence his insanity at the time of the offense. (People v. Williams (1990), 201 Ill. App. 3d 207, 216, 558 N.E.2d 1258.) “Unless it is contrary to the manifest weight of the evidence, the fact finder’s resolution of the issue of defendant’s sanity at the time of the offense will not be disturbed upon appeal.” (People v. Beehn (1990), 205 Ill. App. 3d 533, 539, 563 N.E.2d 1207, 1211.) “The weight to be given an expert’s opinion on sanity is measured by the reasons given for the conclusion and the factual details supporting it.” (People v. Wilhoite (1991), 228 Ill. App. 3d 12, 20-21.) A trier of fact may reject all expert testimony and conclude a defendant was sane based solely on lay testimony. (People v. Williams, 201 Ill. App. 3d at 219.) Lay observations are particularly relevant if they are based on observations made shortly before or after the crime was committed; other relevant factors include the existence of a plan for crime and methods to prevent detection. 201 Ill. App. 3d at 219.

In the case at bar, the expert testimony showed that although Drs. Kaplan and Stipes believed defendant was insane at the time the offense occurred, neither of them examined him until several months after the attack. Dr. Stipes testified that it was possible for a paranoid schizophrenic to commit a crime, understand he committed a crime and be legally sane. He further stated that defendant’s disorder could be triggered by stress, such as committing a crime and being caught. The lay witnesses who observed defendant before, during and immediately after the attack all testified that defendant appeared normal, coherent and remorseful. Further, the evidence indicated that defendant had planned to attack the victim and then took her to a secluded area to prevent detection.

Accordingly, we find that the evidence supported the trial court’s conclusion that defendant was sufficiently lucid at the time of the incident to know that he was committing a crime and to have the capability of conforming his behavior to the requirements of the law.

Defendant next contends that the trial court erred in requiring him to prove his insanity beyond a reasonable doubt. At trial the trial court stated:

“The court has resolved the conflict of the evidence, and the credibility issues that have been presented. It’s clear that the State proved all offenses charged beyond a reasonable doubt. And from all the circumstances find beyond a reasonable doubt that the Defendant was not insane at the time of the incident.”

However, contrary to defendant’s assertion, we find the trial court’s comments pertain to the State’s having met its burden of proof and do not refer to any burden of proof that was required of defendant. We find no evidence in the record to support defendant’s contention that the trial court required him to prove his insanity beyond a reasonable doubt.

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

Affirmed.

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


author: JUSTICE McCORMICK

text:
    LUTHERAN GENERAL HEALTH CARE SYSTEM et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—3475
    Opinion filed June 16, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Mayer, Brown & Platt, of Chicago (Thomas J. McCarthy, Lynne M. Raimondo, and Ira J. Belcove, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

The Department of Revenue (the Department) appeals from an order in administrative review, finding that plaintiffs were entitled to an exemption from real estate taxes. The Department argues that the circuit court erred in reversing the finding of the administrative law judge that plaintiffs did not use the property in question for charitable purposes. The Department also argues that plaintiffs’ complaint in administrative review was not filed in a timely manner.

Plaintiffs are the Lutheran General Health Care System (the System) and the Health Care Medical Foundation (the Foundation). The System is a Federal tax-exempt charitable organization and a part of a nationwide network of health and human service organizations operated by its parent corporation, the Evangelical Lutheran Church of America. At the time this case arose, the System operated Lutheran General Hospital in Park Ridge, Hlinois, and Lutheran General Hospital-Lincoln Park in Chicago.

The Foundation is a multi-specialty physicians’ group formed in affiliation with Lutheran General Hospital. The Foundation, like the System, is a Federal tax-exempt charitable organization.

In August 1987, the System purchased a one-story building located at 6000 West Touhy in Chicago and rented approximately 60% of the building to the Foundation at a fair market rent. The property was used by the Foundation for operation of a multi-specialty, out-patient clinic and to provide medical care and treatment to in-patients of Lutheran General Hospital and Lutheran General Hospital-Lincoln Park.

Subsequently, plaintiffs applied to the Cook County Board of Appeals for an exemption from real estate taxes for that portion of the property leased to the Foundation. Plaintiffs contended that the property was used for educational and charitable purposes and, therefore, was exempt from taxation under sections 19.1 and 19.7 of the Revenue Act of 1939 (Revenue Act) (Ill. Rev. Stat. 1985, ch. 120, pars. 500.1, 500.7).

The Board of Appeals approved plaintiffs’ exemption application, but the Department later reversed that decision. Following the Department’s reversal, plaintiffs requested and were granted a formal hearing on their exemption application.

The hearing was held May 9, 1989, before administrative law judge George Nafziger. At the hearing, Leighten Smith, the Foundation’s president, testified that in 1980, the Foundation’s predecessor, Health Care Associates, was formed in response to a decrease in funding for graduate medical education programs. Smith testified that Health Care Associates was a for-profit group similar to a faculty practice plan. Smith described a faculty practice plan as an organization of physicians involved in the teaching and administrative programs of an institution or major teaching medical center. In the case of Health Care Associates, its affiliation was with the University of Illinois.

According to Smith, the faculty practice plan was utilized as a vehicle to provide funds for the cost of graduate medical education, i.e., fees generated from professional services would be used to pay the faculty and to pay other expenses incurred in conducting the educational programs and in providing ambulatory or out-patient care.

In 1984 Health Care Associates was restructured into a not-for-profit corporation and its name was changed to the Health Care Medical Foundation. Smith testified that the changes were made to enable the Foundation to obtain research grants and to allow it to retain surplus revenues at the end of a fiscal year.

The Foundation is controlled by a 15-member board of directors. Eight of the directors are the clinical division chairmen of Lutheran General Hospital. Smith testified that the presence of these eight directors is designed to further the faculty practice plan and to insure that the Foundation is in step with the programs of the System and the hospitals.

The seven remaining directors are elected by the Foundation’s shareholders. A physician who has been employed by the Foundation for three years may become a shareholder by purchasing one share of the Foundation’s stock for $20. The stock confers no ownership interest in the Foundation and when a physician’s employment ceases the Foundation repurchases the share for $20.

The physicians employed by the Foundation are paid a salary based upon their patient care activities as well as their educational, administrative, and research activities. Approximately 52% of the physicians’ time is spent in educational, research, and administrative activities and, according to Smith’s testimony, a physician with no desire to teach would not be hired by the Foundation. Smith also testified that the physicians are not allowed to maintain private practices and that the salary paid to them by the Foundation is less than that which they would receive in a private practice.

Describing the property on West Touhy, Smith testified that the original intention was to develop the property as an arthritis treatment center; however, the building eventually was used to house expanded programs in geriatric medicine, rheumatology and primary care. Smith further testified that the property was used primarily to treat elderly patients. According to Smith, the property provided the patient volume necessary to maintain the System’s graduate fellowship program in geriatrics and was vital to the continuing accreditation of the fellowship.

Smith characterizeded the property as a major teaching site, explaining that it was used by all internal medicine residents, who are required to do a rotation in rheumatology; by family practice residents who choose to take a rotation in rheumatology; and by senior medical students, primarily from the University of Hlinois, who elect to do a clerkship in rheumatology.

Smith testified that in 1987, there were a number of pharmaceutical clinical trials underway at the property and studies on the detection of abdominal aneurysms in the elderly and bone density in senior citizens were also being conducted. Smith stated that because these studies could not be conducted in a hospital on an in-patient basis, the patient base at the West Touhy site was essential to this research.

Smith stated that the Foundation’s charges to its patients at the West Touhy site are competitive with the charges of other medical service delivery systems, but that the physicians employed by the Foundation have no interest in the revenues generated by the charges other than the salaries they received from the Foundation. However, a physician could make a judgment to write off or not charge an account based on a patient’s financial situation. Smith further testified that no patients are turned away or refused treatment because of the inability to pay.

Kenneth Rojek, wee-president for practice management at Parkside Human Services Corporation (Parkside), also testified for plaintiffs. Parkside, a tax-exempt subsidiary of the System, provides professional management services to the Foundation. Rojek testified that the Touhy property was purchased because the Foundation did not have enough space on campus to conduct research or to continue to expand and develop programs in geriatric medicine and in arthritis and primary care services. Rojek testified that this lack of space had threatened the accreditation of the hospitals’ teaching programs.

Rojek also testified that Parkside did the billing for doctors employed by the Foundation, but that a doctor could waive a fee if it was determined that a patient was unable to pay. Rojek stated that no one would be denied care based on an inability to pay and that patients with previously unpaid bills would be accepted for treatment. Rojek further stated that while attempts are made to collect unpaid fees, the Foundation has a policy of not suing to collect fees, except in very unusual circumstances.

On January 11, 1990, Nafziger issued a recommendation that the Touhy property remain on the tax rolls. In reaching his recommendation, Nafziger relied on the six guidelines for determining whether property is being used for charitable purposes that were set forth by the Illinois Supreme Court in Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537.

In Korzen, the supreme court held that a use is considered charitable when (1) it is for the benefit of an indefinite number of persons, persuading them to an educational or religious conviction, for their general welfare or in some way reducing the burdens on government; (2) the charitable institution has no capital, capital stock, or shareholders, and earns no profits or dividends; (3) the institution derives its funds mainly from public and private charity and holds them in trust for the objects and purposes expressed in its charter; (4) charity is dispensed to all who need and apply for it and gain or profit is not provided in a private sense to any person connected with the charitable institution; (5) it does not appear that any obstacles are placed in the way of those who need and would avail themselves of the charitable benefits dispensed; and (6) the primary purpose for which the property is used is charitable. Korzen, 39 Ill. 2d at 157.

Nafziger found that the Foundation met two of these guidelines: the requirement that charity be dispensed to all who need and apply for it and the requirement that no obstacles be placed in the way of those seeking the benefits. However, Nafziger also found that the property was not being put to a charitable use because the Foundation had capital, capital stock, and shareholders who profited from the enterprise and because the Foundations funds were not derived mainly from private and public charity. In addition, Nafziger based his denial of a charitable exemption on his determination that, while there was an indirect benefit to the public, the primary beneficiaries were the Foundation’s physician stockholders.

A copy of Nafziger’s recommendation was mailed to plaintiffs on January 12, 1990. On January 18, 1990, plaintiffs’ counsel wrote to Nafziger informing him that page 7 had been omitted from plaintiffs’ copy of the decision. The letter further stated that it was plaintiffs’ understanding that a complete copy of the decision would be sent to plaintiffs and that the mailing of disposition records would be corrected so that the 35-day filing period for administrative review would not commence until the complete copy was mailed.

A complete copy of the recommendation was delivered to plaintiffs on January 22, 1990. The certificate of mailing accompanying the complete copy stated that the decision was mailed on January 18,1990.

On January 29, plaintiffs’ counsel wrote to Nafziger a second time, pointing out that Nafziger’s recommendation failed to address plaintiffs’ contentions that the property was eligible for an educational exemption under section 19.1 of the Revenue Act and requesting reconsideration of the denial of exempt status. In a letter dated February 5, 1990, Nafziger stated that the Revenue Act did not provide for rehearings or reconsideration. However, Nafziger added that in his original recommendation he determined that the Foundation was a for-profit corporation and that, based on the supreme court’s decision in Montgomery v. Wyman (1889), 130 Ill. 17, 22 N.E. 845, such corporations did not qualify for exemptions for school purposes.

On February 21, 1990, plaintiffs filed a complaint in administrative review in the circuit court. The complaint alleged that Nafziger erred in finding that plaintiffs failed to meet four of the six standards set forth in Korzen. The complaint also alleged that Nafziger’s decision failed to address plaintiffs’ claim that the property was exempt under section 19.1 of the Revenue Act and that Nafziger’s reliance on Montgomery v. Wyman was erroneous as a matter of law.

On November 5, 1990, the circuit court issued a memorandum decision reversing the Department’s denial of a property tax exemption. The court held that Nafziger’s finding that plaintiffs failed to meet all the guidelines set forth in Korzen was against the manifest weight of the evidence. Applying those guidelines, the court found that the Foundation’s activities benefitted an infinite number of persons and that the corporate form utilized by the Foundation did not fit into the “corporate profit-motivated framework” contemplated by Korzen. The court also found that the record established that the Foundation was funded by grants as well as patient fees and that the property was used primarily for charitable purposes.

I

The Department argues that the circuit court lacked jurisdiction to hear plaintiffs’ complaint in administrative review under section 3— 103 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 3—103.) Section 3 — 103 provides that “[ejvery action to review a final administrative decision shall be commenced by the filing of a complaint *** within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” A decision is considered served when it is deposited in the United States mail. Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842; Schlobohm v. Police Board (1984), 122 Ill. App. 3d 541, 461 N.E.2d 601.

The Department argues that the decision in the present case was served when it was mailed to plaintiffs on January 12, 1990, and, therefore, the complaint filed on February 21, 1990, was untimely. Plaintiffs contend that because the copy of the decision mailed to them was incomplete, the 35-day period did not began to run until January 18, 1990, when a complete copy of the decision was mailed.

In Johnson v. State Employees Retirement System (1987), 155 Ill. App. 3d 616, 508 N.E.2d 351, this court stated that the 35-day period for administrative review does not begin to run until the administrative agency has provided the plaintiff with adequate notice of its decision. This is because the right to review includes not only the right to present evidence but also a reasonable opportunity to know what claims must be defended against and what consequences are proposed. (Department of Revenue v. Jamb Discount (1973), 13 Ill. App. 3d 430, 301 N.E.2d 23.) To be effectual the notice should be so full and clear as to disclose to persons of ordinary intelligence what is proposed; and in making the determination of whether there has been adequate notice, the test is whether the recipient should have anticipated the effects and orders possible. Johnson, 155 Ill. App. 3d at 619; Jamb Discount, 13 Ill. App. 3d at 435.

In the present case, the Department argues that the portion of the decision mailed to plaintiff on January 12, 1990, was sufficient to advise plaintiffs of Nafziger’s findings of fact and conclusions of law. The Department argues that, therefore, the 35-day period began to run at the time of the first mailing.

We find that while the portion of the first decision mailed to plaintiffs was sufficient to inform them that Nafziger had denied their request for an exemption, it was insufficient to inform them of what claims should be addressed in their complaint for administrative review.

The failure to include a full page of the 71/2-page decision was not a minor omission. Until a complete copy of the decision was received, plaintiffs had no way of knowing that Nafziger failed to address the school exemption issue; nor could they know the precise grounds on which Nafziger relied in denying them tax-exempt status. While plaintiffs could have filed a complaint for administrative review without this information, we believe it would be unfair to require them to file a complaint where they can only guess at the contents of the decision they are seeking to have reviewed.

Accordingly, we hold that the phrase “copy of the decision” as used in section 3 — 103 should be read as requiring that plaintiffs be served with a complete copy and not just a portion of the decision.

II

The Department next argues that the trial court erred in reversing the finding that plaintiffs’ property was not used for charitable purposes. The Department argues that because the administrative agency was both the finder of fact and the interpreter of the law, its findings and conclusions of fact should be held prima facie true and correct.

However, as plaintiffs point out, the evidence in the present case was uncontradicted. Where the relevant facts are undisputed, the decision as to whether the property is exempt is a question of law, depending solely upon an application of the appropriate legal standard to the undisputed facts. (Lutheran Child & Family Services v. Department of Revenue (1987), 160 Ill. App. 3d 420, 513 N.E.2d 587; Highland Park Hospital v. Department of Revenue (1987), 155 Ill. App. 3d 272, 507 N.E.2d 1331.) In such a case, the appellate court’s role is to determine whether the trial court properly found that the property in question was entitled to tax-exempt status. Lutheran Child & Family Services, 160 Ill. App. 3d at 423.

Here, plaintiffs sought exemptions under sections 19.7 and 19.1 of the Revenue Act. Section 19.7 provides for an exemption from taxation for:

“All property of institutions of public charity, all property of beneficent and charitable organizations, *** and all property of not-for-profit organizations providing services or facilities related to the goals of educational, social and physical development, *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit ***.” Ill. Rev. Stat. 1987, ch. 120, par. 500.7.

As stated above, the supreme court has set forth six guidelines to be used in determining whether property is exempt under section 19.7. (Korzen, 39 Ill. 2d 149, 233 N.E.2d 537.) Of these six, Nafziger found that plaintiffs failed to meet numbers (1), (2), (3), and (6).

GUIDELINE (1)

In finding that plaintiffs did not meet guideline (1), Nafziger relied on Mason District Hospital v. Tuttle (1978), 61 Ill. App. 3d 1034, 378 N.E.2d 753.

In that case, the Mason District Hospital built a medical office center in order to attract doctors to the area. The center was used by the doctors in carrying on their private practices and each was charged a rent based upon the square footage of the area they used. The hospital received no revenues from the doctors’ private practices. The doctors operated their practices on a profit basis, they were not required to provide any medical services to the hospital, and they did not provide care for those who could not pay.

The appellate court rejected the hospital’s claim for an exemption, holding that the primary use of the facility was as an office center for the physicians privately practicing there and that any charitable purpose was incidental. In the present case Nafziger reached the same conclusion with respect to the doctors employed by the Foundation. However, it seems clear that the Foundation’s use of its property differs substantially from that of the Mason District Hospital.

Smith’s testimony in the present case established that the doctors employed by the Foundation were not allowed to maintain private practices, the salaries received by the physicians were below that which they might receive in a private practice, the physicians had no interest in the patients’ fees which were paid directly to the Foundation, and no patients were turned away because of an inability to pay. In addition, the physicians were required to perform educational, administrative, and research activities in order to continue their employment with the Foundation.

In Sisters of the Third Order of St. Francis v. Board of Review (1907), 231 Ill. 317, 83 N.E. 272, it was argued that the hospital in question was not a charity because it was being conducted for the benefit of a limited class of physicians permitted to practice at the hospital. The supreme court disagreed, stating that the question of whether the hospital was an institution of public charity did not depend on the class of physicians permitted to practice there so long as the institution was not conducted for the purpose of benefitting the physicians of that class. Sisters of St. Francis, 231 Ill. at 323.

Here, because the physicians receive a below market income and are not allowed to develop and maintain private practices, it cannot be said that the property is used primarily for their benefit. And, in light of the testimony that treatment is provided regardless of ability to pay and that the property is used to conduct research on medical treatment for senior citizens, we find that the trial court properly concluded that the major benefit is received by the patients who are treated and those who gain from the research conducted.

In arguing that Nafziger’s finding should be upheld, the Department places reliance on Highland Park Hospital (155 Ill. App. 3d 272, 507 N.E.2d 1331). There, the hospital sought an exemption for a portion of a building used as an immediate care center, arguing that the decision in the Sisters of St. Francis was controlling because the center dispensed charity to all who applied for it and no obstacles were placed in the way of those seeking treatment.

The appellate court denied the exemption, noting that even though 6% of the patients never paid for the care received, all patients were billed for their treatment and there was no evidence that the general public knew that free care was available at the center. The court described the 6% of the uncollected bills as nothing more than bad debts. Highland Park Hospital, 155 Ill. App. 3d 272, 507 N.E.2d 1331.

Here, however, Nafziger found that charity is dispensed to all who need and apply for it and that no obstacles are placed in the way of those seeking benefits. The Department has not appealed this finding and, therefore, the decision in Highland Park Hospital is inapplicable.

GUIDELINE (2)

Nafziger found that plaintiffs did not meet this guideline because the Foundation had capital, capital stock, and shareholders. However, Smith’s testimony established that the stock conferred no ownership interest in the corporation, no dividends were paid on the stock, and it did not appreciate in value. The sole benefit conferred by the stock to the physician shareholder is the right to vote on administrative issues. Thus, to deny a charitable exemption on this basis could only be described as a triumph of form over substance.

Nafziger also found that because the Foundation bylaws provided that the members of the board of directors could be compensated for serving on the board, there was a possibility that the physicians could earn a profit. The Department argues that Nafziger’s decision was correct and that the physicians’ ability to profit from the enterprise is similar to the situation in People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 264 N.E.2d 4.

In Hopedale Medical Foundation, the foundation’s medical director held a mortgage on all of the property and buildings in the complex; operated a private medical practice out of his office in the hospital; received a substantial salary for the performance of managerial services; and was paid fees for specialized medical functions such as administering anesthetics, performing pre- and post-operative services, and giving physical exams to employees. In addition, the medical director derived financial benefits from fees for consulting services carried on with the aid of foundation personnel and from operation of a private pharmacy that sold to the hospital on a “cost plus” basis. In denying a charitable exemption, the supreme court held that the foundation was operated for the professional and financial benefit of the director and his associates. Hopedale Medical Foundation, 46 Ill. 2d at 463.

Nothing in the facts of the present case suggests that the plaintiffs’ activities bear even a remote resemblance to those in Hopedale Medical Foundation. Here the Department has not argued anything beyond a possibility that the Foundation’s directors could be compensated. The Department argues that this is all that need be alleged because the only question is whether the corporate structure lends itself to profit taking. The Department provides no support for this argument, and we find that the fact that there might be some possibility that the directors may be compensated at some time in the future is too remote to support the conclusion that the physicians profit from the Foundation’s activities.

GUIDELINE (3)

Nafziger found that the Foundation was not entitled to a charitable exemption because its funds were derived primarily from fees for services, not charitable contributions or grants. However, in American College of Surgeons v. Korzen (1967), 36 Ill. 2d 340, 348, 224 N.E.2d 7, overruled on other grounds in Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 383 N.E.2d 958, where it was argued that the college was not a charitable institution because more than half of its funds came from membership dues, the supreme court stated:

“A careful reading of the cases indicates that while the source of funds is listed as a characteristic of a charitable organization, each concerns itself primarily with discovery of the facts relative to the use to which the funds are put. *** In final analysis, the cases may be read to mean that where funds are principally derived from dues of members such funds are per se held primarily for the benefit of the members rather than in trust for the benefit of the public. We think, however, a better view is that where it is established that the funds and property are devoted to public purposes, the source of the funds is not the sole determinant factor.”

The court has also held that the fact that an institution charges fees for its services from those who are able to pay does not preclude exemption where no profit is made and the amounts received are applied in furthering the institution’s charitable purpose. People ex rel. Cannon v. Southern Illinois Hospital Corp. (1949), 404 Ill. 66, 69, 88 N.E.2d 20.

Here, the fees collected were used to pay the physicians’ salaries, to lease the Touhy property, to purchase physicians’ services, to fund research, and for other operating expenses. Rojek testified that the Foundation operated at a deficit and that if the Foundations’ operation ever did generate a surplus, the money would be used to supplement its research and educational activities. Accordingly, we find that because the fees generated are used to further the Foundation’s operations, the fact that its primary source of funding is not public or private charity does not require a conclusion that the Foundation is not a charitable enterprise.

GUIDELINE (4)

The Department argues that the Foundation does not meet this guideline because the public benefits only incidentally from the use of the property. However, as we noted above, the Department has not disputed Nafziger’s conclusion that the Foundation dispensed charity to all who needed and applied for it and that no obstacles are placed in the way of those seeking benefits. Further, Smith testified that in addition to performing medical services, physicians devoted 52% of their time to performing educational, administrative, and research activities. Additionally, as we stated in our earlier discussion of the supreme court’s decision in Sisters of St. Francis, there is no basis for a claim that the physicians employed by the Foundation and not the public are the primary beneficiaries of the use of the property.

In conclusion, we find that plaintiffs are entitled to a charitable deduction under section 19.7 and that the circuit court properly reversed the decision denying plaintiffs’ claim for exemption.

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

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.