author: JUSTICE CAMPBELL

text:
    GIBRALTAR CASUALTY COMPANY, Plaintiff-Appellant, v. A. EPSTEIN AND SONS, INTERNATIONAL, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0133
    Opinion filed October 15, 1990.
    Rehearing denied December 26, 1990.

      Trizna & Lepri, of Chicago (Robert J. Lepri and Daniel J. Fumagalli, of counsel), for appellant.
    Foran, Wiss & Schultz, of Chicago (Nicholas J. Etten and Douglas R. Stevens, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Gibraltar Casualty Company (Gibraltar), appeals from an order dismissing its third amended complaint, which sought a declaratory judgment that the claims-made professional liability insurance policy it had issued to defendants, A. Epstein and Sons, International, Inc., Epstein Construction, Inc., and A. Epstein and Sons, Inc. (collectively known as Epstein), was not applicable to a lawsuit filed by Hammond-Columbia Refrigerated Warehouse, Inc., Kelaron Corporation, Inc., Chilewich Corporation, d/b/a Kelwich Realty Partnership, and American National Bank, as trustee (collectively known as Hammond-Columbia), against Epstein for damages arising from roof repair work at Hammond-Columbia’s warehouse, and that Gibraltar had no duty to defend Epstein or to pay any judgment which may arise from the lawsuit. On appeal, Gibraltar contends that: (1) Epstein’s failure to report the Hammond-Columbia roof collapse in its application for the claims-made policy bars Epstein from claiming insurance coverage for that matter; (2) a letter sent from Hammond-Columbia’s attorney to Epstein, prior to the effective date of the Gibraltar policy, indicating that a preliminary investigation revealed that Hammond-Columbia had been “substantially damaged” due to Epstein’s “negligence, nonfeasance and malfeasance” constituted notice of claim to Epstein, thereby barring coverage; and (3) the trial court erroneously reversed its previous position when it dismissed Gibraltar’s third amended complaint. For the following reasons, the judgment of the trial court is affirmed.

The events giving rise to this action are as follows. In April 1982, Hammond-Columbia engaged Epstein to furnish design and construction management services in connection with the repair of a damaged roof structure at Hammond-Columbia’s refrigerated warehouse. Most of the temporary stabilization of the roof was completed in April and some permanent repair was done in June. On the evening of July 18, 1982, the roof collapsed again in the area under repair, creating an opening in the roof approximately 10 feet in diameter. The following day, Epstein designed and constructed a temporary cover over the opening in the roof.

Approximately one week later, Epstein received a letter via certified mail, dated July 23, 1982, from Hammond-Columbia’s attorney, Michael Basofin, which stated:

“Dear Mr. Basich:
This firm represents Kelaron Corporation, Hammond Columbia Refrigerated Warehouse, Inc., and all their respective affiliates with regard to the above-captioned property.
This is to confirm that A. Epstein Group of Companies, including, but not limited to, Epstein Construction, Inc. and A. Epstein and Sons, Inc. will do nothing further with regard to the above-captioned project.
Preliminary investigation has revealed that our client has been substantially damaged due to the negligence, nonfeasance and malfeasance of the Epstein Group of Companies and certain individuals.
Please have your counsel contact me.”

Although Epstein’s attorney, Timothy Kocian, contacted Basofin after receiving the letter, the parties agree that neither the July 23, 1982, letter nor events relating to any alleged negligence were ever discussed. Instead, Kocian made demands for payment by Hammond-Columbia for work done on the warehouse roof.

Subsequently, in early February 1983, Epstein completed an application for a claims-made “Architects and Engineers Professional Liability Insurance Policy” to be issued by Gibraltar. Of particular relevanee to this appeal is question no. 24, parts “a” and “b,” on the application.

Part “a” asked:

“Has the firm or any of its members any knowledge of prior acts, errors or omissions which might reasonably be expected to give rise to a claim under this insurance?”

Epstein replied, “No.” Part “b” asked:

“Does the firm or any of its members have knowledge of any deficiencies, property damage or bodily injury, whether actual or alleged, in connection with projects upon which the firm has performed professional services?”

In reply, Epstein attached a six-page list of lawsuits to which it was or is a party, indicating the status of each suit.

Subsequently, Gibraltar issued to Epstein a claims-made “Architects and Engineers Professional Liability Insurance Policy” (the Policy), effective from January 22, 1983, to January 22, 1984. Pursuant to the Policy, “claims-made” means that the insured is covered for claims of which the insured had no prior knowledge and which are first reported to Gibraltar during the policy period, but not following the expiration date. Coverage was subject to all the provisions of the Policy. Endorsement 7 of the Policy, entitled “Specific Claims Situations/Incidences — Exclusion Endorsement,” further provided that insurance under the Policy “does not apply to loss or injury to person or property or professional acts, errors or omissions arising out of” the insured’s “performance involving claims or situations which were detailed by [the insured] on [the] application for insurance as described below.” An itemization of the lawsuits set forth on Epstein’s application in answer to question 24b was then set forth on the endorsement.

Thereafter, in a letter dated September 16, 1983, Epstein was advised by the law firm of Clausen, Miller, Gorman, Caffrey and Witous that Clausen had been retained by First State Insurance Company and the Kelaron Corporation to represent them in a negligence suit against Epstein for damages sustained as a result of the roof collapse at the Hammond-Columbia warehouse on July 18, 1982. The letter stated that a lawsuit would be filed and requested that Epstein ask its liability carrier to contact Clausen to discuss resolution of the matter. Epstein’s counsel, Timothy Kocian, sent a copy of the letter to Gibraltar’s agent on September 22, 1983, and asked for confirmation that the claim was covered under the Policy. Hammond-Columbia filed its suit and Gibraltar denied coverage.

On January 29, 1985, Gibraltar filed its complaint for declaratory judgment, alleging that the July 23, 1982, letter from Hammond-Columbia constituted first notice of a claim, thereby precluding coverage under the Policy. Gibraltar subsequently amended its complaint twice to add various defendants. On October 23, 1986, Gibraltar moved for summary judgment on the ground that, pursuant to the July 23, 1982, letter, Epstein had knowledge of Hammond-Columbia’s claim prior to the effective date of Gibraltar’s policy. For reasons not evident in the record, Gibraltar was granted leave to withdraw its motion for summary judgment without prejudice and to refile the motion on January 9, 1987. Gibraltar’s motion was then denied on the ground that questions of fact existed as to whether the July 23, 1982, letter constituted a claim.

Epstein then moved for summary judgment and Gibraltar filed an amended motion for summary judgment, based on new facts. Epstein’s motion was granted and Gibraltar was given leave to file a third amended complaint. Gibraltar’s third amended complaint added counts I and II, alleging that Epstein had fraudulently withheld information as to prior claims on its application for insurance and, therefore, coverage was barred pursuant to section 154 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 766). In addition, Gibraltar re-alleged that the July 23, 1982, letter constituted a claim (count III). In response, Epstein moved to dismiss counts I and II of the third amended complaint on the ground that Gibraltar had failed to meet the requirement of section 154 that no misrepresentation by an insured shall defeat or avoid an insurance policy unless the application in which the alleged misrepresentation is contained is attached to or endorsed on the policy and made a part of the policy. With respect to count III, Epstein argued that it should be dismissed based upon the prior summary judgment ruling. The trial court granted Epstein’s motion to dismiss and denied Gibraltar’s request for leave to file a fourth amended complaint. Gibraltar’s timely appeal followed.

Initially, Gibraltar contends that pursuant to section 154 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 766), Epstein’s failure to report on the application a possible claim arising from the Hammond-Columbia roof collapse bars Epstein from seeking coverage under the Policy for claims arising from the roof collapse. In response, Epstein contends that section 154 is an absolute bar to Gibraltar’s allegations of Epstein’s misrepresentations on its insurance application because Gibraltar failed to meet the threshold requirements of section 154, i.e., the insurer must recite the alleged misrepresentations in the policy, attach the written application containing the misrepresentations to the policy, or endorse the written application on the policy and make it a part thereof. Section 154 provides:

“No misrepresentation or false warranty made by the insured or in his behalf in the negotiation for a policy of insurance, or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or endorsement or rider attached thereto, or in the written application therefor, of which a copy is attached to or endorsed on the policy, and made a part thereof. No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.” Ill. Rev. Stat. 1987, ch. 73, par. 766.

The primary purpose of section 154 is to allow for objective evidence of negotiations at the time of application for protection of the insured from possible frauds by insurance agents in falsifying answers given by the insured in applying for insurance. (Inter-Insurance Exchange of Chicago Motor Club v. Milwaukee Mutual Insurance Co. (1978), 61 Ill. App. 3d 928, 378 N.E.2d 391.) In reviewing insurance policies in the context of an issue regarding an insurer’s compliance with section 154, courts require strict compliance with section 154’s requirements and, if the insurer has not attached the application to the policy, the policy must include a specific, unambiguous statement indicating the misrepresentation. (International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 532 N.E.2d 493; Mollihan v. Stephany (1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465; Government Employees Insurance Co. v. Dennis (1965), 65 Ill. App. 2d 365, 212 N.E.2d 759; Loving v. Allstate Insurance Co. (1958), 17 Ill. App. 2d 230, 149 N.E.2d 641.) A mere statement in the insurance policy that the insured’s statements were made a part of the policy (Economy Fire & Casualty Co. v. Thornsberry (1978), 66 Ill. App. 3d 225, 383 N.E.2d 780), or a general reference to the application in the policy (see Spence v. Central Accident Insurance Co. (1908), 236 Ill. 444, 86 N.E. 104), without more specificity, do not satisfy the requirements of section 154.

In the present case, question 24 on Epstein’s application for insurance provides the basis for Gibraltar’s allegations of misrepresentation. Gibraltar contends that, in reliance on Epstein’s answers to question 24, it attached Endorsement 7 to the Policy, which was entitled, “Specific Claims Situations/ Incidences Exclusion Endorsement (Endorsement 7).” The introductory paragraph to Endorsement 7 states:

“It is hereby agreed that such insurance as is afforded by this policy does not apply to loss or injury to person or property or professional acts, errors, or omissions arising out of your performance involving claims or situations which were detailed by you on your application for insurance as described below.”

Following the introductory paragraph, the endorsement contained an itemization of the lawsuits Epstein had set forth in response to question 24b on the application. The Hammond-Columbia roof collapse was not referenced in Epstein’s application and does not appear in Endorsement 7. Gibraltar contends that Epstein’s failure to list the Hammond-Columbia warehouse roof collapse constituted a misrepresentation by omission, which is evidenced in the Policy by the absence of the Hammond-Columbia roof collapse from the list on Endorsement 7.

Although clear reference in an insurance policy to the misrepresentation made in the application has been held to constitute sufficient compliance with the requirements of section 154 (Mollihan v. Stephany (1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465; Government Employees Insurance Co. v. Dennis (1965), 65 Ill. App. 2d 365, 212 N.E.2d 759), the reference must be specific and unambiguous. In Mollihan, the insured stated in his application for automobile insurance that a driver’s license had never been suspended, revoked or refused for himself or any family member for the past three years. In fact, his wife had had her license revoked. In reliance on the application, the declaration in the policy stated that: “No license to drive or registration has been suspended, revoked or refused for the named insured or any member of his household within the past three years.” (Mollihan, 52 Ill. App. 3d at 1040.) Subsequently, in denying coverage to the insured, the insurer alleged the misrepresentation. The Mollihan court held that the statement in the declaration set forth the misrepresentation and thereby complied with section 154’s requirements.

Similarly, in Government Employees Insurance Co. v. Dennis (1965), 65 Ill. App. 2d 365, 212 N.E.2d 759, the declaration to the policy stated that the insured owned both cars. The statement of ownership constituted the alleged misrepresentation upon which the insurer denied coverage. The court held that the statement in the declaration complied with the requirements of section 154 even though the application was not attached.

Unlike the policy references to the alleged misrepresentations in Mollihan and Government Employees Insurance Co., the reference in the Policy to Epstein’s alleged misrepresentation is generalized and oblique. Although a misrepresentation by omission cannot be set forth in an affirmative statement, there is no indication in the Policy that Gibraltar had considered Epstein’s answer to question 24 to be a complete list of all projects and, as such, that list in its entirety provided the basis for Endorsement 7. Instead, Endorsement 7 makes a general reference to the application and provides no basis for the exclusion of coverage for the listed projects. In other words, there is no indication on Endorsement 7 that denial of coverage for the listed projects was predicated on Epstein’s answer to questions 24a and 24b.

At the hearing on Epstein’s motion to dismiss the third amended complaint, the trial court suggested ways in which the Policy could have been made more specific:

“[T]o be stated in the policy in accordance with Mollihan, you would say, ‘The firm or its members do not have any knowledge of prior acts; and such and such ***; as contained in 24A.’ And further, ‘[Tjhey do not have any knowledge of deficiencies, property damage, and so on and so forth as contained in B.’
So if that was in the policy, you could rely on the exclusion. * * *
I would accept your argument [that the misrepresentation was stated in the Policy] if, in fact, that paragraph said, ‘This has been stated by you to be a complete list of *** property damage, professional acts, errors, omission arising out,’ and so on and so forth. And it was not there. It would have been included by way of omission.
This is a complete list. It’s not there. All this says is these are situations to which the policy does not apply.”

While this court does not hold that if the trial court’s suggestions were followed in another case, the insurer would have necessarily complied with section 154, we agree with the trial court that, under the facts and circumstances of this case, had statements with that degree of specificity been present in the Policy, the likelihood of Gibraltar having satisfied the requirements of section 154 would have been greatly increased.

Next, Gibraltar argues that the July 23, 1982, letter constituted a notice of claim against Epstein, thereby barring coverage under Gibraltar’s claims-made policy. In determining whether an insured has had notice of a claim prior to the effective date of a claims-made policy, courts look to the language of the particular policy’s claims-made provision, which indicates the degree of awareness on the insured’s part which will constitute “notice.” (Stiefel v. Illinois Union Insurance Co. (1983), 116 iLL. App. 3d 352, 452 N.E.2d 73; Hoyt v. St. Paul Fire & Marine Insurance Co. (9th Cir. 1979), 607 F.2d 864; BeNSalern Township v. Western World Insurance Co. (E.D. Pa. 1985), 609 F. Supp. 1343.) In Stiefel, plaintiff, an attorney, received a letter, dated December 22, 1976, from attorney Richard Price, which stated, in pertinent part:

“We have been retained by Larry LaCroix, Donna LaCroix, James York and Janis York to prosecute their claim for damages arising out of your advice, action and inaction surrounding the demise of Countryside Porseh & Audi, Inc. * * *
Please refer this matter to your errors and omissions carrier. Unless I hear from them, suit will be filed on January 20, 1977.” (Stiefel, 116 Ill. App. 3d at 354.)

Plaintiff responded to the letter, explaining the circumstances and claiming that the allegations of professional malpractice were untrue. Contrary to the contents of the letter, no lawsuit was filed against plaintiff on January 20, 1977. However, a malpractice suit was filed on February 3,1978.

Between the time the letter was received and the lawsuit filed, plaintiff applied for a claims-made malpractice insurance policy from Illinois Union Insurance Co. (IUI). On the application, plaintiff stated that he was not aware of any circumstance, error, omission or offense which might result in any claim being made against him. Based on the information supplied in the application, IUI issued its policy, which provided that it would apply “to negligent acts, errors, omissions or offenses which occur anywhere in the world: *** prior to the effective date of the Policy if claim is first made during the Policy period and providing no insured had knowledge nor could have reasonably foreseen any circumstance which might result in a claim at the effective date of the Policy ***.” Stiefel, 116 Ill. App. 3d at 354.

After the lawsuit was filed, IUI denied coverage on the grounds that based upon the December 22, 1976, letter, plaintiff could have reasonably foreseen that a malpractice claim might result from its representation of Countryside Porseh & Audi, Inc. In response, plaintiff argued that a claim did not arise until suit was filed on February 3, 1978. The trial court granted IUI’s motion for judgment on the pleadings.

In affirming the trial court’s judgment, the appellate court found that the December 22, 1976, letter “clearly and unmistakenly exhibited the intention of the claimants to press a legal claim against plaintiff for damages based on alleged professional malpractice. That letter justified the able and experienced trial judge in determining that plaintiff should have 'reasonably foreseen’ circumstances under which a suit for malpractice might very well be filed against him.” 116 Ill. App. 3d at 356.

Although there are some similarities between the letter in Stiefel and the July 23, 1982, letter in the present case, the important distinguishing factor is the policy language in each case. As previously stated, in Stiefel, the policy provided that it applied “to negligent acts, errors, omissions or offenses which occur anywhere in the world: *** prior to the effective date of the Policy if claim is first made during the Policy period and providing no insured had knowledge nor could have reasonably foreseen any circumstance which might result in a claim at the effective date of the Policy ***.” (116 Ill. App. 3d at 354.) Therefore, in order to establish that the attorney’s letter provided sufficient notice of a claim to the insured, IUI had only to prove that, based upon the letter, the insured could have reasonably foreseen circumstances which might result in a claim. Proof of this degree of awareness is based upon an objective, rather than a subjective, evaluation of the facts. (Ratcliffe v. International Surplus Lines Insurance Co. (1990), 194 Ill. App. 3d 18, 550 N.E.2d 1052.) By contrast, the Policy in the present case provides that Epstein is not covered “for claims of which [it] had prior knowledge.” Therefore, in order to establish that the July 23, 1982, letter provided sufficient notice of a claim so as to bar coverage under the claims-made provision, Gibraltar must establish that the letter imputed actual “knowledge of a claim” to Epstein, not just a reasonable expectation of a claim. Further adding to Gibraltar’s burden of proof is the Policy’s definition of “claim.” Pursuant to the Policy, the relevant definition of “claim” is an “allegation.” Although not defined in the Policy, the commonly understood meaning of “allegation” is “[t]he assertion, claim, declaration or statement of a party to an action, made in a pleading, setting out what he expects to prove.” (Blacks Law Dictionary 99 (4th ed. 1968).) Application of this definition to the July 23, 1982, letter demonstrates that the letter is not a “claim.” Instead, the letter- merely informed Epstein that a preliminary investigation indicated that Hammond-Columbia had been damaged due to the negligence, nonfeasance and malfeasance of Epstein and others. Arguably, the letter would satisfy the “reasonably foreseeable” language of the Stiefel policy or the “might reasonably be expected” language of question 24a on the Policy application, but it does not constitute actual knowledge of a claim which, pursuant to the terms of the Policy, is required to bar coverage under the claims-made provision. There is no evidence in the record that Epstein had actual knowledge of a claim, as “claim” is defined in the Policy. In fact, the generalized substance of the letter directly belies any argument that it had provided actual knowledge of a claim to Epstein. The oblique reference in the letter to damage due to negligence, nonfeasance and malfeasance failed to specify the alleged negligent acts, the employees involved or the type of damage incurred. Not only did Epstein have no idea as to what it had allegedly done, it also did not know if a professional liability policy would even be applicable. The nonspecific nature of the letter is further evidenced by the fact that a substantively identical letter had been sent to Northern Industrial Steel Corporation, which had also performed work on the roof of the Hammond-Columbia warehouse.

Similar to Stiefel, the cases relied upon by Epstein are also distinguishable from the present case by the language of the relevant policies. (Hoyt v. St. Paul Fire & Marine Insurance Co. (9th Cir. 1979), 607 F.2d 864; Bensalem Township v. Western World Insurance Co. (E.D. Pa. 1985), 609 F. Supp. 1343.) In Hoyt, the policy states that coverage will be provided if the insured “had no knowledge or could not have reasonably foreseen any circumstance which might result in a claim or suit.” (Hoyt, 607 F.2d at 865.) In Bensalem, the policy required that the insureds notify insurer as soon as practicable if they receive “written or oral notice from any party that it is the intention of such party to hold the insured’s responsible for a Wrongful Act.” (Bensalem, 609 F. Supp. at 1348.) Neither of these provisions is relevant to the present case.

Finally, Gibraltar contends that the trial court erred when it reversed its previous position and dismissed the third amended complaint. Specifically, Gibraltar claims that at the hearing on the cross motions for summary judgment, the trial court “suggested *** in dictum” that if Gibraltar properly pled a complaint referencing the allegedly incomplete insurance application, it would withstand a section 2— 615 motion to dismiss. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Subsequently, when Gibraltar filed its third amended complaint alleging misrepresentations in the application, the trial court dismissed the complaint based on Gibraltar’s failure to comply with section 154.

In our view, this argument is waived on the grounds that it is void of any legal authority (Brown v. Tenney (1988), 125 Ill. 2d 348, 532 N.E.2d 230), and the argument was not raised in the trial court. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) Furthermore, even if the argument were not waived, it is without merit. The trial court’s statement was not a guarantee of the results of an amended claim. It is axiomatic that until the issue is before the court and both sides have had an opportunity to present their arguments, comments by the court are not legally binding. Instead, they are merely suggestions or dictum, as Gibraltar itself characterizes them. Any reliance by Gibraltar was unfounded.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    H. LEON CLYDE, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fourth District
    No. 4—90—0156
    Opinion filed December 20, 1990.
    Rehearing denied January 9, 1991.

      Joseph C. Honan, of Bloomington, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    J. Stephen Poor and Marcia A. Mahoney, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, and Theodore R. Johnson, of Peoria, for respondent Caterpillar, Inc.
   JUSTICE KNECHT

delivered the opinion of the court:

The Illinois Department of Human Rights filed a complaint on behalf of Leon Clyde, complainant, against Caterpillar, Inc., alleging Caterpillar violated section 2 — 102(A) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 2 — 102(A)). The administrative law judge (ALJ) found, as a matter of law, complainant failed to establish a prima facie case of discrimination on the basis of age. (In re H. Leon Clyde (May 9, 1989),_Ill. Hum. Rights Comm’n Rep. _(HRC No. 1986 — CF—1103) (hereinafter ALJ’s recommended decision of May 9, 1989).) The Illinois Human Rights Commission (HRC) concluded the ALJ’s decision was not against the manifest weight of the evidence and affirmed. (In re H. Leon Clyde (Nov. 13, 1989),_ Ill. Hum. Rights Comm’n Rep._(HRC No. 1986 — CF—1103) (hereinafter HRC’s order of Nov. 13, 1989).) The complainant appeals this decision pursuant to Supreme Court Rule 335 (107 Ill. 2d R. 335). We affirm.

The following evidence was adduced at the hearing before the ALJ. Caterpillar divided accounting functions into two areas: general accounting and cost accounting. General accounting included general ledger bookkeeping, tracking financial results, financial reporting, procedures, budgetary, and forecasting work. Cost accounting involved product costing, investment analysis, make-buy-import studies, and other special cost projects. Different skills were required to work in each area.

Caterpillar established a procedure for downgrading management accounting employees during a reduction in force, which occurred when the company lacked sufficient business to employ the entire work force. After the reduction and restructuring of the work force, surplus management accounting employees were first tested and placed in the highest-rated job for which they were qualified without training. The phrase “without training” meant the employee could move into the new job and perform it after only two or three days’ familiarization.

The second consideration in the downgrade procedure involved seniority. The employee’s date of entry into his job classification determined seniority and was synonymous with service. The employee with the earliest entry date was allowed to displace or “bump” less senior employees.

David Schappaugh, personnel services supervisor at Caterpillar’s Pontiac, Illinois, facility from January 1982 through February 1987, testified the most important of the two criteria was whether an employee could perform a job without being trained. This involved a “judgment call” by line managers. Experience was relevant only as to whether the employee had the knowledge and skill to perform the job without being trained.

Complainant began working for Caterpillar in 1967 as a production accounting clerk. He was promoted to the management payroll and entered the accountant job classification in September 1968. In 1978 he was transferred to the Pontiac facility, where his job classification was general accountant A-150.

In 1982, respondent offered Clyde a position as a cost accountant, but Clyde declined the offer. Had he accepted the position, Caterpillar would have trained him for the job, including Statistical Analysis System (SAS) training. Thus, Schappaugh testified, Caterpillar’s offer of the job to complainant at that time was not an indication he was qualified to do the work, because additional training would have been necessary.

Complainant later applied for SAS training and was scheduled for a class in the fall of 1984. One to two weeks before the class his supervisor, Cloyce Burcham, asked him to step aside and let another employee, Mr. Schnake, take the class. Schnake was younger than Clyde. Burcham told the complainant he would be rescheduled for the class. In December 1984 or January 1985, Clyde asked for admission to the March 1985 SAS class. He was told his job no longer required the training and thus he would not be allowed to attend.

Caterpillar’s policy was to allow only those who would use SAS training in their jobs to attend the training sessions. Clyde testified Thomas Stanley took the SAS class but did not use the training in his job. Stanley’s testimony corroborated Clyde’s assertion. Stanley worked as a budget accountant at the Pontiac facility from June 1984 through August 1985 and had SAS training in September 1984. David Pruski, apparently an accounting supervisor, testified he believed Stanley received SAS training at the Davenport facility, just before transferring to Pontiac.

During his tenure at Caterpillar, the complainant worked only in the general accounting division. He occasionally performed cost-accounting tasks, but these did not involve the kinds of tasks performed by accountants in the cost-accounting division, according to Gregory Bower, cost- and investment-analysis supervisor, and Pruski. Complainant disputes their testimony on this point.

In 1984 all management employees, including Clyde, received notice from Caterpillar of an impending reduction in the work force. Complainant discussed alternative job possibilities, particularly a move to the cost-accounting division, with Burcham. Burcham and Clyde talked again in the spring of 1985 when Burcham informed Clyde he could not move to the cost-accounting department because he lacked SAS training.

Caterpillar implemented the reduction in its work force in August 1985. Complainant’s job was eliminated and he was downgraded to a methods-analyst position. He was 45 years old at the time. The downgrade removed complainant from the management payroll and placed him on the weekly payroll, resulting in approximately $1,000 less per month in wages, loss of medical benefits offered exclusively to management personnel, and the loss of income from the employee-employer investment plan from which complainant had to withdraw due to the decrease in his disposable income. The employee Clyde displaced, or “bumped,” was Brad Beabout, age 30. Twenty-two management employees, including Clyde, were downgraded or laid off in August 1985. All were younger than Clyde. Stanley, a 28 year old, was also laid off.

At the time of the downgrade, there were four cost-accounting positions at the Pontiac facility, held by Steve Klisares, age 28, Lillie Davis, age 34, Phillip Weingart, age 26, and Lester Simms, age 28. All four were less senior to Clyde in the accountant classification. Weingart and Simms entered the classification in October 1985; thus, the HRC and complainant describe them as having probationary status in August 1985. Weingart received SAS training in March 1985 and Davis and Simms received SAS training in February 1986.

Pruski testified Clyde was downgraded, rather than bumping an employee in cost accounting, because he could not perform any of the cost jobs without at least IV2 months’ training. Specifically, Pruski testified Simms worked to develop rates for a burden-allocation system, which went to the corporate system for product costing. Complainant lacked familiarity with Caterpillar’s estimated-cost system, used in costing, and with the local system for preproduction costing, a system unique to the Pontiac facility. It had taken Simms about IV2 months to become familiar with the required computer operations. Thus, he could not do Simms’ job after only two or three days on the job.

Klisares brought in a production reporting system for the factory, also known as a cost-effectiveness system, and for implementing the system and training users. This was a unique system which had taken Klisares several months to learn. Because Clyde lacked experience with cost-effectiveness systems, and because the project was of limited duration, he was not qualified to do the work done by Klisares.

Weingart was responsible for normals, that is, developing cost rates based on a budget. The rates are put into a system to determine product costing. Weingart also worked to determine ways to reduce the company’s organizational structure and costs. The computer system, SAS, used in performing the normals function took about one week of training and three weeks of hands-on use to operate it properly. Because complainant lacked necessary computer skills and SAS training, he could not perform the work Weingart did without training. Pruski testified he did consider Clyde’s experience with normals work, but believed the experience was not useful as the company now uses microcomputers to do the job. Pruski testified SAS training alone would not have qualified Clyde for the normals job.

Davis did investment analysis, make-buy-import studies, and worked on a cost-reduction team for one product. She worked on both the general and local computerized estimated-cost system, and had had IV2 months’ training to become familiar with the system. Complainant could not do Davis’ job because he had no knowledge of the estimated-cost system used for product costing and investment analysis. Although Clyde had prior investment experience, he could not satisfactorily perform the job in 1985 without training.

Complainant did not meet the “without training” criteria for the cost positions and had to be downgraded to the methods-analyst position. Complainant was downgraded despite his seniority to Klisares, Davis, Weingart, and Simms. The ALJ further found that in the accounting department, several employees who were younger than complainant (Stanley, Deitz, and Liptach, all in their 20’s) were laid off— and two employees older than complainant, Vaughn and Gallup, were retained.

The ALJ concluded, as a matter of law, complainant failed to establish a prima facie case of age discrimination. Caterpillar’s denial of SAS training for Clyde was not shown to have been based on age. The ALJ found Caterpillar did not discriminate against Clyde when he was not allowed to displace Weingart. Further, as a new employee, Weingart was not governed by the downgrade policy but was entitled to IV2 months’ training on the job.

“While Complainant may disagree with how Respondent interprets its policy, Complainant has still failed to show that his age was the reason Respondent's [sic] interpreted its policy as it did. Respondent’s policy has not been shown to have been interpreted and applied any differently to Complainant as it was to other employees.
Since Complainant could not perform the job of the A-150 cost accountants without being trained, Complainant has not demonstrated that he was able to meet the legitimate expectations of his employer for the positions at issue. Consequently, Complainant has failed to establish a prima facie case of age discrimination.” ALJ’s recommended decision of May 9, 1989, slip decision at 13.

The HRC affirmed, adopted, and incorporated the ALJ’s recommended order and decision in its order and decision issued November 13,1989, wherein the HRC concluded:

“After reviewing the record, it appears clear that the respondent may have been justified in retaining the complainant as a management accountant. It is also clear, however, that the complainant could not have performed any of the existing management accountant positions without additional training, and that the respondent had a policy which held that management employees who were subject to a reduction in force could not ‘bump’ other employees unless they could do their jobs without additional training. Under these circumstances, it was reasonable for the Administrative Law Judge to find that the complainant had not proven discrimination. Under Section 8— 107(E)(2) of the Human Rights Act, the Commission may not overturn the factual findings of the Administrative Law Judge unless they are against the manifest weight of the evidence. Under this standard, we find that the Recommended Order and Decision in this case must be affirmed.” HRC’s order of Nov. 13,1989, slip at 4.

The factual findings of an administrative agency are deemed prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) A reviewing court must affirm the HRC’s findings of fact unless the court concludes they are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(A)(2); Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688.)

“ ‘A decision is contrary to the manifest weight of the evidence only when, after reviewing the evidence in a light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision [citation], because an opposite conclusion is clearly evidence [sic]. [Citation.] If the record contains any evidence supporting the administrative agency’s decision, the decision must be sustained on review.’ (Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 193-94, 524 N.E.2d 1172, 1174-75.)” (Quincy School District No. 172 v. Human Rights Comm’n (1990), 197 Ill. App. 3d 694, 699-700, 555 N.E.2d 21, 25-26.)

The reviewing court cannot reweigh the evidence or substitute its judgment for that of the trier of fact. Zaderaka, 131 Ill. 2d at 180, 545 N.E.2d at 688.

Complainant alleged Caterpillar violated section 2 — 102(A) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 2 — 102(A)) and sought to prove disparate treatment. Illinois courts use the analytical framework set forth in United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1988)) and the Age Discrimination in Employment Act of 1967 (29 U.S.C. §§621 through 634 (1988)) in analyzing employment discrimination actions brought under the Act. (Zaderaka, 131 Ill. 2d at 178, 545 N.E.2d at 687.) As stated in Zaderaka:

“The Supreme Court set out a three-part analysis in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against plaintiff. Second, to rebut the presumption, the employer must articulate, not prove (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097), a legitimate, nondiscriminatory reason for its decision.
Finally, if the employer carries its burden of production, the presumption of unlawful discrimination falls and plaintiff must then prove by a preponderance of the evidence that the employer’s articulated reason was not its true reason, but was instead a pretext for unlawful discrimination. This merges with plaintiff’s ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against plaintiff. (Burdine, 450 U.S. at 256, 67 L. Ed. 2d at 217, 101 S. Ct. at 1095.)” Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687.

Under the analytical framework adopted by the United States Supreme Court in McDonnell Douglas Corp., a complainant bears the burden of proving a prima facie case by showing: (1) he was a member of the protected class; (2) he was doing his job well enough to meet the employer’s legitimate expectations; (3) despite his performance, he was discharged; and (4) the employer sought a replacement for him. (Oxman v. WLS-TV (7th Cir. 1988), 846 F.2d 448, 452-53; see also McDonnell Douglas Corp., 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct. at 1824 (describing initial burden of establishing prima facie case of racial discrimination in context of suit where complainant was laid off and, after leading demonstrations against employer, was not rehired upon applying in response to employer’s advertisement).) “Under the disparate treatment theory, proof of discriminatory motive is critical, although it may be inferred in some situations from differences in treatment. (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 415 n.15, 97 S. Ct. 1843, 1854 n.15.)” (Burnham City Hospital v. Human Rights Comm’n (1984), 126 Ill. App. 3d 999, 1003, 467 N.E.2d 635, 637.) This is the standard the ALJ required Clyde to meet.

Federal courts have encountered difficulty applying the McDonnell Douglas prima-facie-proof formulation to cases involving reductions in work force, because the employer rarely replaces the employee. Thus, the employee cannot satisfy the fourth element of the McDonnell Douglas formulation. The United States Court of Appeals for the Seventh Circuit established a modified version of the primafacie-proof formulation for use specifically in reduction in force cases. (Oxman, 846 F.2d at 453-54.) Under this standard, the complainant must show (1) he was within the protected class; (2) he was performing according to his employer’s legitimate expectations; (3) he was terminated or demoted; and (4) others not in the protected class were treated more favorably. Oxman, 846 F.2d at 455.

The ALJ concluded, as a matter of law, Clyde failed to establish a prima facie case of age discrimination. Clyde was within the protected class as he was 45 years old in August 1985. He was adversely affected by the downgrade and, despite his seniority, was not allowed to displace four younger employees. The ALJ wrote, “Based on these facts, Complainant has presented sufficient evidence that these persons were treated more favorably.” (ALJ’s recommended decision of May 9, 1989, slip decision at 9.) The complainant was not, however, able to meet Caterpillar’s legitimate expectations of job performance in a cost-accounting position without training. This, rather than his age, caused him to be downgraded and, according to the ALJ, kept him from proving a prima facie case.

The HRC’s order and decision focused not on the prima facie case, but on whether Clyde proved Caterpillar’s reasons for downgrading him were pretextual.

“In a case such as this, where the respondent’s reason for the employment transaction in issue has been fully presented in the evidence, it is not usually necessary for a reviewing panel to determine whether a prima facie case has been presented. Because the main function of the presentation of a prima facie case is forcing the respondent to articulate its reason for the employment transaction in issue, once that reason has come out, the reviewing panel can normally proceed to determine whether that reason has been proven to be a pretext for discrimination. United States Postal Service Board of Governors v. Aikens[, (1983), 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478].” HRC’s order of Nov. 13, 1989, slip at 2.

The Aikens case involved a black employee who claimed he was denied promotion because of his race. After Aikens presented his case in district court, the postal service's witnesses testified Aikens was not promoted because he had declined several lateral transfers that would have broadened his experience. The Court held the district court then had sufficient evidence to decide the ultimate factual issue, whether the postal service intentionally discriminated against Aikens. “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Aikens, 460 U.S. at 715, 75 L. Ed. 2d at 410,103 S. Ct. at 1482.

The HRC went on to discuss whether Clyde proved Caterpillar’s articulated reasons for downgrading him were pretextual. The HRC relied on Kindred v. Human Rights Comm’n (1989), 180 Ill. App. 3d 766, 536 N.E.2d 447, to make its decision. The 52-year-old complainant in Kindred was terminated after 30 years’ employment as a security guard at International Harvester. The termination occurred during a work force reduction in which 3,800 employees were laid off. Younger security employees were retained. The complainant alleged age discrimination and sought to prove he was more experienced and more qualified than several of the younger employees. The ALJ found complainant proved a prima facie case and International Harvester articulated legitimate, nondiscriminatory reasons for his discharge. Additionally, the ALJ found complainant failed to show direct evidence of age discrimination and failed to show International Harvester’s reasons were pretexts for discrimination. The HRC affirmed the ALJ.

On appeal, Kindred argued the HRC placed an improper burden of proof on him, requiring him to prove his credentials were so superior that the reasons articulated by his employer were unworthy of credence. (Kindred, 180 Ill. App. 3d at 768, 536 N.E.2d at 448.) The Third District Appellate Court disagreed, stating:

“In an age discrimination suit, the employee may prove his case with either direct or circumstantial evidence. (McNeil v. Economics Laboratory, Inc. (7th Cir. 1986), 800 F.2d Ill.) In the indirect case, the employee must first prove a prima facie case of age discrimination. If the employer then articulates a lawful reason for the employee’s dismissal, the employee has the burden of proving that the reason given by the employer is merely a pretext by showing that the discriminatory reason more likely motivated the employer or that the employer’s proffered explanation is unworthy of credence. [Citation.]
*** The petitioner’s prima facie case was based on the circumstantial evidence that his credentials were superior to the credentials of several of the retained personnel. The respondent then articulated apparently legitimate reasons for its determination that the retained personnel had better credentials. At that point, the petitioner did not have to merely prove that his credentials were in fact superior. He had to. prove that their superiority was so obvious that the respondent’s reasoning was unbelievable and must be construed as merely a pretext for age discrimination. Accordingly, the Commission correctly paraphrased the *** burden of proof to fit the facts of the instant case.” Kindred, 180 Ill. App. 3d at 768, 536 N.E.2d at 448-49.

The HRC in this case apparently believed Clyde’s arguments were similar to those made by Kindred. “[I]t is not sufficient for the complainant to show that some of the incumbent management accountants were still considered probationary by the respondent. He must show, instead, that the reason articulated by the respondent is unworthy of credence.” HRC’s order of Nov. IS, 1989, slip at 4.

The HRC, following Aikens, could properly omit a discussion of the prima facie case and focus instead on pretext. Although the HRC’s order and decision is' brief, the evidence supports the decision to affirm the ALJ. Clyde failed to show Caterpillar’s reasons for downgrading him were pretextual as Caterpillar articulated legitimate, nondiscriminatory reasons for downgrading him. “If the record-contains any evidence supporting the administrative agency’s decision, the decision must be sustained on review.” Bultas, 171 Ill. App. 3d at 194, 524 N.E.2d at 1175.

Complainant asserts the HRC focused on two of his arguments in determining whether Caterpillar’s articulated reasons for downgrading him were pretextual. The first argument focused on by the HRC was whether Clyde was unfairly denied training in 1984 and the second was whether it was unfair to apply the “without-training” requirement against the two incumbent cost accountants, Weingart and Simms, who had probationary status only. Complainant contends the HRC erred when it examined these arguments against the burden set forth in Kindred, rather than against the legitimacy of the application of the “without-training” rule.

Complainant argues the HRC should not have made a distinction as to when a training rule can and cannot be used to discriminate between junior and senior employees. Specifically, complainant objects to Caterpillar’s rule requiring an employee in a downgrade situation be able to perform a new job without training, and to the rule allowing new employees (recent hires) to be trained on the job. Clyde maintains Weingart should not have been considered an incumbent in the job classification because he had no seniority as compared to Clyde, and he was trained on the job. “Complainant questions the application of a training rule which denies him a job because he lacks the training but is not applied to younger employees who also lacked training but were given the same job.”

Clyde’s arguments are based on Coates v. National Cash Register Co. (W.D. Va. 1977), 433 F. Supp. 655. Coates was 50 years old and had 22 years’ experience as a National Cash Register Co. (NCR) field engineer when discharged. His case was consolidated with a similar suit by Woodie Smith. Coates was trained on 15 mechanical machines but had not completed training to work on electromechanical or electronic machines. Many younger employees in the office had been requested by NCR to take training on electronic machines. Older employees rarely had opportunities to take training on the new equipment because they were busy servicing mechanical machines. Declining profits mandated discharge of employees. NCR discharged Coates and Smith because they were the only field engineers without training on electronic machines. The office manager “conceded that by using the training level as a criteria, he was forced to discharge the two oldest men in the office while keeping on one man who was not qualified to work on 85% of the machines in the *** area and another man who was only marginally qualified to service 8.5% of the machines.” Coates, 433 F. Supp. at 659.

The Coates court concluded:

“NCR’s decision to discharge plaintiff was not directly based on age, but it was based on the training of plaintiffs. The evidence clearly established that the relative training levels of NCR employees was directly related to the age of the employees. So by using the training level as the basis of the discharge decision, NCR indirectly discharged plaintiffs because of their age. Therefore this court holds that the training or lack of training, which ostensibly is an objective and valid criterion for employment decisions, cannot form the basis of an employment decision when that lack of training is created by age discrimination. The age discrimination which invalidates an employment decision need not be direct or intentional. This court further holds that both plaintiffs were discharged ‘because of’ their ‘age’.” Coates, 433 F. Supp. at 661.

Coates is distinguishable on several grounds. First, the office manager in Coates testified if Coates and Smith had had training on electronic machines, they would not have been fired. Testimony in this case indicates that even if complainant had SAS training, he still could not have performed any of the cost-accounting positions without at least IV2 months’ training. Second, the layoff procedure in Coates affected only the oldest employees. The “without-training” component of the downgrade procedure at Caterpillar was developed prior to the reorganization which necessitated the downgrade. The requirement adversely affected employees of all ages.

The HRC did not hold the complainant to an improper burden of proof as argued by complainant.

The next issue is whether the complainant established disparate treatment on the basis of age as it related to the SAS-training class. The ALJ concluded respondent’s denial of SAS training for complainant was not based on his age. “Although Stanley did not use the SAS training on his job, this still does not support a finding that Respondent did not believe that Stanley did not need training on his current job. All that could possibly be inferred from this occurrence is a misjudgment by Respondent as to who should have taken SAS training.” ALJ’s recommended order of May 9, slip decision at 11.

Clyde argues there is no basis in fact to support the ALJ’s inference of misjudgment. Schnake, the man sent to SAS training in Clyde’s place, and Stanley were both under 40 years of age. “Complainant submits that the only inference from this evidence is that Respondent’s reason for denying Complainant SAS training was based on age.”

Disparate treatment requires a showing of intentional discrimination against the complainant. (Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687-88.) The record fails to support Clyde’s argument and does not reveal intentional discrimination on the basis of age by Caterpillar.

Complainant next argues he was qualified for the A-150 normals job in the cost-accounting division. The record indicates complainant was not qualified for the A-150 normals job, as discussed earlier. He lacked SAS and other training. He was a surplus management employee involved in a downgrade, not a new employee entitled to training on the job.

Complainant also argues the ALJ erroneously used testimony by Caterpillar’s witnesses, that Clyde was not qualified for a cost-accounting position, in deciding he did not make a prima facie case. According to complainant, this testimony should not have been considered in the prima facie case determination, but in the next step of the McDonnell Douglas analysis, as Caterpillar’s articulation of its reason for downgrading him. Complainant fails to recognize one element of the prima facie case: he had to show he was qualified for the normals job in 1985. He did not make such a showing.

The final issue is whether Caterpillar denied complainant the A-150 normals job because he could not perform it or because he was not qualified for it. Complainant argues because he was offered the A-150 normals job in 1982 and Pruski testified it was the same job in 1985 as in 1982, he was qualified for the job. This argument ignores testimony from Pruski that if Clyde had accepted the job in 1982, he would have undergone IV2 months’ training and the offer of the job in 1982 was not an indication he was qualified for it. The distinction between “qualified” and “able to perform” is artificial.

Caterpillar’s decision to downgrade the complainant was based on an established procedure for handling management employees during a reduction in work force, not on the complainant’s age. The decision of the HRC is affirmed as complainant failed to show Caterpillar’s reason for downgrading him was pretextual.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    BENNY E. TOPPS, Plaintiff-Appellant, v. PRATT AND CALLIS, P.C., Defendant-Appellee.
    Fourth District
    No. 4—90—0286
    Opinion filed November 29, 1990.
    Rehearing denied January 9, 1991.
    Kenneth E. Baughman, of Monticello, for appellant.

      William J. Harte, Ltd., of Chicago (William J. Harte, David J. Walker, and Joan M. Mannix, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Benny E. Topps filed a complaint against defendant Pratt & Callis, P.C., seeking a declaratory judgment regarding the validity of defendant’s action of withholding from a workers’ compensation settlement monies loaned plaintiff for living expenses. The trial court granted defendant’s motion to dismiss, finding plaintiff’s complaint insufficient in law to state a cause of action. Plaintiff appeals from this dismissal. We affirm.

The allegations of the complaint suggest after sustaining an injury as a result of employment at Wagner Casting Company, plaintiff retained defendant to represent him in a workers’ compensation claim. Defendant filed an application for adjustment of claim before the Illinois Industrial Commission in cause No. 86 — WC—16143. During the course of defendant’s representation, defendant loaned plaintiff money for living expenses. These loans were made pursuant to notes signed by plaintiff on April 30, 1987, for $500; May 27, 1987, for $1,100; June 29, 1987, for $200; October 30, 1987, for $1,800; November 30, 1987, for $400; December 11, 1987, for $200; January 27, 1988, for $300; and March 22, 1988, for $200. The notes provided for repayment of the loan principal plus interest.

On June 20, 1988, plaintiff received a total settlement of $60,000 in case No. 86 — WC—16143. From this sum, defendant subtracted attorney fees, expenses of litigation, and the sum of $4,705.83, which represented the $4,400 principal loaned to plaintiff and $305.83 interest.

On November 16, 1989, plaintiff filed suit pursuant to section 2 — 701 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701), alleging the loans were void under Disciplinary Rule 5 — 103(b) of the Code of Professional Responsibility (107 Ill. 2d R. 5 — 103(b)). Plaintiff alleged defendant lacked authority to deduct the sum from the workers’ compensation settlement. Plaintiff sought a finding he had no legal obligation for the repayment of the loans and interest and the deduction from his settlement proceeds was unlawful.

Defendant filed a motion to dismiss the cause of action pursuant to section 2 — 615 of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Defendant’s motion stated plaintiff’s complaint failed to allege facts demonstrating the loans were void as contrary to public policy, plaintiff had shown no harm or injury to himself or others arising from loans, plaintiff lacked standing to bring the action, and the loans were not contrary to public policy.

The trial court dismissed plaintiff’s complaint in an opinion filed April 16, 1990. The trial court held the Illinois Supreme Court in O’Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 537 N.E .2d 730, determined the law will not aid a layperson who joins with an attorney in an agreement which violates public policy.

We agree with the trial court that the agreement between plaintiff and defendant requiring defendant to advance plaintiff living expenses is void as against public policy. In O’Hara, the Illinois Supreme Court dismissed plaintiff’s complaint which sought' enforcement of a contract between plaintiff and a law firm. Though plaintiff had transferred the good will associated with the name of her deceased husband’s law practice to the firm, the firm failed to compensate plaintiff for it according to the terms of their agreement. In finding the agreement void as against public policy the Illinois Supreme Court stated:

“[C]ourts will not enforce a private agreement which is contrary to public policy. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 424[, 386 N.E .2d 47, 52]; People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75, 94[, 197 N.E. 537, 542].) While the term ‘public policy’ lacks precise definition (Board of Trustees, 74 Ill. 2d at 425[, 386 N.E.2d at 53]), it may be stated generally as a legal principle which holds that no one may lawfully do that which has a tendency to injure the public welfare (McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp. (1983), 95 Ill. 2d 68, 71-72[, 447 N.E.2d 400, 402]; Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554, 567[, 188 N.E .836, 842]). The public policy of this State is reflected in its constitution, its statutes and its judicial decisions. (McClure Engineering, 95 Ill. 2d at 72[, 447 N.E.2d at 402].) Whether or not a contract is contrary to public policy depends on the peculiar facts and circumstances of each case. (Board of Trustees, 74 Ill. 2d at 425[, 386 N.E .2d at 53].) In deciding whether a contract that is not otherwise prohibited by law violates public policy, the courts must determine whether the agreement is so capable of producing harm that its enforcement would be contrary to the public interest.” O’Hara, 127 Ill. 2d at 341-42, 537 N.E.2d at 734.

Advancing financial assistance to a client is contrary to the public interest. Disciplinary Rule 5 — 103 of the Code of Professional Responsibility provides:

“(a) A lawyer may acquire a proprietary interest in the cause of action or subject matter of litigation which he is conducting for a client only by
(1) acquiring a lien granted by law to secure his fee or expenses; or
(2) contracting with a client for a reasonable contingent fee in a civil case.
(b) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.” (107 Ill. 2d R 5-103.)

The purpose behind this rule is to ensure the lawyer will exercise independent professional judgment on behalf of the client. (107 Ill. 2d Canon 5.) The advancement of living expenses does not fall within one of the exceptions allowed in Disciplinary Rule 5 — 103(b) and is improper.

Here, plaintiff is seeking to void a contract after reaping the benefits of its execution. Just as courts refuse to compel execution of a contract which is against public policy, courts will not set aside such a contract after it has been executed. (First Trust & Savings Bank v. Powers (1946), 393 Ill. 97, 65 N.E.2d 377.) To do otherwise would permit plaintiff to receive the benefit of the loans and also endorse his efforts to recover the amounts subtracted from the settlement. The dismissal of the lawsuit leaves the parties as they would have been had the loan agreement never been fulfilled. The harm was not to plaintiff, but to the administration of justice and society at large because of the breach of the Code of Professional Responsibility.

Neither the trial court’s dismissal nor this court’s affirmance suggests approval of the agreement struck between plaintiff and defendant. Such an agreement is in clear violation of the Code of Professional Responsibility and contrary to public policy. Our affirmance of the trial court’s dismissal does not deny plaintiff other remedies available to him under the Code of Professional Responsibility for defendant’s conduct.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP C. RICKSY, Defendant-Appellant.
    Fourth District
    No. 4—90—0239
    Opinion filed December 12, 1990.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Robert W. Mueller, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Phillip Ricksy, was convicted at a bench trial of one count of possession of less than 15 grams of a substance containing cocaine. (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b).) He was sentenced to 30 months’ probation, fined $500, and ordered to serve 150 days of. periodic imprisonment. On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence. We agree and reverse.

I. THE EVIDENCE

At the July 1989 hearing on defendant’s motion to suppress evidence, the only witness to testify was Danville police officer James Smutz, who had been so employed for nine years. Smutz testified that he stopped a Ford Mustang after he observed the left brake light on the car did not work. He signaled the car to pull over, and it did so after traveling approximately half a block. After Smutz had turned on his red lights and before the Mustang stopped, Smutz saw both the driver and the one passenger, defendant, lean towards the middle of the vehicle. The car had bucket seats, and the driver appeared to be pushing something between his seat and that of the passenger.

As Smutz walked to the driver’s door, he noticed the butt of a hunting knife protruding from the back of the driver’s seat on the right side. As a result of seeing the knife butt, Smutz directed the driver and defendant to “produce their hands” and get out of the car.

Defendant and the driver were standing at the rear of the Mustang when Smutz looked into the crack between the seats and found an open can of beer. It was wedged between the driver’s seat and the console situated between the front seats. Smutz seized the hunting knife, which was within a sheath. Smutz also seized two 12-ounce cans of beer — one open and one not — and a package of cigarette rolling papers.

Danville auxiliary officer Larry Vance was riding with Smutz on the day in question. As Smutz approached the Mustang, he directed Vance to stay behind so Vance could serve as a “cover officer.” Smutz explained that a “cover officer” is “supposed to secure the people in the car” being approached by the other officer in the event that officer comes under attack.

Smutz testified that he does not request people in every traffic stop to get out of the vehicle so that he can search the front seat. He did so in this particular case “because of the movement and amount of travel before they stopped, [and because] they appeared to be concealing something from us.” He further explained that he considered the knife butt “strongly” in deciding to have the occupants get out of the car.

The primary issue in this case involves the pat-down of defendant by Smutz as defendant was standing at the rear of the Mustang. On direct examination, Smutz testified as follows:

“Q. [Defense counsel]: Did you conduct an exterior pat-down of Mr. Ricksy?
A. Yes, I did.
Q. What did you first notice when you conducted this pat-down?
A. He appeared to have a small, thick paper package in his right front pants pocket.
Q. All right. Were you able to see it protruding from the pants pocket, or was — did you first discover its presence by feel? '
A. By feeling it.
Q. And I think you’re — well, if you could, would you describe the approximate size of it?
A. It was two inches by an inch and a half, maybe three inches by two inches, somewhere in that area.
Q. Was this an envelope, or how would you describe it?
A. It was a manila envelope.
* * *
Q. All right. Once you felt this package, what did you do?
A. I removed it from his pocket.
Q. In what position was [defendant] at that time? In other words, did he have his hands on the car or something?
A. He was still in the secured position at the back of the Ford with his hands on the car.
Q. All right. This is the position you have ordered him to assume?
A. Yes.
Q. And did you then check to see what contents there were in the package?
A. Yes, I did.
Q. How did you do that?
A. I opened it up and looked inside.
Q. All right. What did you see?
A. Several small clear plastic baggies of a white powdery substance, about the size of your thumbnail.”

On cross-examination, Smutz testified about the pat-down as follows:

“A. I — After checking the front of the car, I moved back to the driver and the passenger of the car at the rear of the Mustang.
Q. [Prosecutor]: Okay. And what did you do when you got back to the two subjects?
A. Patted both of them down and checked them.
Q. Now how did you start to pat down the defendant ***? What did you do at first?
A. I ran my hands down the exterior of his clothing.
Q. Okay. And what if anything did you notice in doing that?
A. There was a small — I want to say, thick paper package in his right front pants pocket.
Q. Okay, thank you. And I believe you testified that you took that out?
A. And looked into it, yes.
Q. It was not sealed?
A. No.
Q. When you saw inside it, what could you see inside the manila envelope?
A. Small clear plastic baggies of a white powdery substance. Each were [sic] twisted at the top with a little twist tie.”

• As the last question on redirect examination, defense counsel asked Smutz, “Was the reason for your check of [defendant] to see whether he had any further alcoholic beverage [sic], or other contraband related to the rolling papers?” Smutz answered, “Yes, it was.”

On re-cross-examination, the prosecutor asked one question: “Was that the only reason?” Smutz replied, “That, and he was also checked for any weapons related to the knife that was in the car.” When examined further by defense counsel regarding this claim of a check for weapons, Smutz claimed that his police report concerning this incident was consistent with his testimony. That report stated that because of the movement of the car’s occupants, Smutz “had them produce their hands, [and] move [sic] them to the back of the car, where they were secured until I could find what was concealed in the car, or what may have been removed from the car.”

Defendant argued at the hearing on the motion to suppress that (1) the initial stop was defective because one operating brake light is legally sufficient, (2) the furtive movement in the car was not a sufficient justification for Smutz to order the occupants to get out of the car and to stand near the trunk, (3) the pat-down of defendant by Smutz was not justified, and (4) what Smutz felt during the pat-down did not justify the retrieval of the envelope from defendant’s pants pocket and the search of that envelope. The State disputed all of these arguments, noting- that because Smutz observed the hunting knife in the car, legitimate concerns for his safety justified the subsequent action he took. The State also claimed that once Smutz found evidence of unlawful possession of alcohol in the car, he had authority to make a full custodial arrest. Last, the State argued that there was probable cause for Smutz to take defendant and the driver into custody “based on the totality of the circumstances of the traffic stop.”

Section 114 — 12(e) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 12(e)) sets forth the trial court’s responsibilities at the conclusion of a hearing on a motion to suppress evidence, as follows: “The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.” Despite this clear legislative mandate, the entire response of the court to the arguments of both parties is the following:

“THE COURT: I feel the officer was justified in the limited intrusion upon which he proceeded. The car crept along the east side of Jackson Street for approximately one-half block. During that time there was [sic] furtive movements by both parties in the car. That upon approach of the officer to the car, a butt handle of a large, I believe, knife was seen by the officer, which would necessitate his removing the occupants from the vehicle. At this time in looking inside the car he noticed the other paraphernalia. Therefore, the motion to suppress is denied.”

II. ANALYSIS

On appeal, defendant now concedes that the police had probable cause to stop the Mustang “to investigate within permissible limits because of the defective brake light.” However, defendant still maintains that “nothing which followed justified his search.” Defendant argues that a pat-down search was not justified on these facts, and even if one were justified, Smutz acted unlawfully in removing the envelope from defendant’s pants pocket because Smutz had no reason to believe that the item he felt was a weapon. We need not address the first of these arguments because we agree with defendant that even if the pat-down of defendant were permissible, the police officer acted unlawfully in removing the envelope from defendant’s pants pockets.

We note that we do not have the benefit of the trial court’s findings of fact or conclusions of law on the question of the lawfulness of Smutz’s removal of the envelope from defendant’s pants pocket. This deficiency makes our job of reviewing the trial court proceedings more difficult.

We suggest the following analytical approach for trial courts to use when deciding motions to suppress evidence. When, as here, the evidence before the court reveals a series of interactions between the police and a person who is being stopped or searched, the court’s analysis should be as finely divided as possible to distinguish among the various stages of that interaction.

Using the present case as an example, the evidence presented at the hearing on the motion to suppress raised the following distinctive questions: (1) Was the initial stop of the Mustang lawful? (2) Assuming the initial stop to be lawful, did the officer lawfully order the passengers to get out and to stand at the rear of the vehicle? (3) Assuming that order was lawful, did the officer lawfully conduct a pat-down of the defendant? And (4) assuming the pat-down was lawful, did the officer lawfully remove the envelope from defendant’s pants pocket?

At the conclusion of the evidence and before counsel began their arguments on the motion, had the court framed the issues before it in this fashion, both the trial court and this court could have received clear statements as to what the parties’ respective positions were on these issues. An additional benefit would be that each counsel would argue the facts and law counsel deemed supportive. The last advantage of utilizing this procedure would be that the trial court, when complying with the requirements of section 114— 12(e) of the Code, could state with specificity its findings of fact with regard to each of these separate questions, as well as its conclusions of law based thereon.

Despite the failure of the trial court to provide either findings of fact or conclusions of law regarding the lawfulness of Smutz’ removal of the envelope from defendant’s pants pocket, that is the determinative issue in this appeal, and we must address it. In a case involving this same question, this court wrote the following:

“Under the doctrine of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, when, as contended by the State here, a valid stop has been made, an officer is permitted to conduct a limited search for weapons only where he reasonably suspects that he or another is in danger of attack. Section 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 108 — 1.01) is in conformity with Terry and specifically authorizes peace officers to make such a limited search under those circumstances.” People v. Morgan (1985), 138 Ill. App. 3d 99, 101, 484 N.E.2d 1292, 1293.

Consistent with this authority, the State concedes that “not all items can be removed from an individual’s clothing” by a police officer during a pat-down conducted pursuant to a Terry stop. However, citing this court’s recent opinion in People v. Day (1990), 202 Ill. App. 3d 536, 560 N.E.2d 482, the State argues that an officer need not be absolutely certain that the person stopped is armed; instead, all that is required is that the officer’s intrusion be reasonably designed to discover objects capable of use as a weapon. We disagree and conclude that Day is factually distinguishable from the ■present case and provides no support for the State’s claim that removal of the envelope from defendant’s pocket was lawful.

We begin our discussion of this issue by quoting, as we did in Day, from Professor LaFave’s treatise on the fourth amendment:

“As one commentator has aptly noted, it ‘will be a rare case in which, in the process of a pat-down, an officer will not come upon some object or objects secreted in the apparel of the suspect.’ Thus, another important question which must be resolved in order to assess the conduct of a police officer who has performed a frisk is that of what tactile sensations produced by the pat-down will justify a further intrusion into the clothing of the suspect.
At the outset, it must be asked what the legal test is at this point. In Terry, the Court stressed that after patting down the suspects Officer McFadden ‘did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons.’ But surely this does not mean that the policeman must know beyond any doubt that what he has felt is a weapon; the officer ‘need not be absolutely certain that the individual is armed.’ Sometimes it is said that he must feel ‘an object which he reasonably believes to be a dangerous weapon,’ which may be an appropriate test if this reasonable belief does not require that it be possible to determine that it is more probable than not that the object is a weapon. As some courts put it, it must be asked whether the object ‘feels like a weapon,’ whether there was anything in the officer’s ‘perception to indicate it was not a weapon either because of size or density. ’ ” 3 W. LaFave, Search and Seizure §9.4(c), at 521 (2d ed. 1987).

In Morgan, the officer involved contended that the bulging object he felt under defendant’s heavy leather jacket during the pat-down felt like a “hard, cylindrical object,” which the officer feared might be a weapon. (Morgan, 138 Ill. App. 3d at 101, 484 N.E.2d at 1293.) However, when the object was removed from defendant’s coat, it turned out to be a bag of cannabis. On these facts, this court concluded that “no grounds existed which would justify the officer’s belief that he was likely to be attacked by defendant. It is difficult to see how a bag of cannabis could produce a bulge in defendant’s coat which would resemble a weapon.” Morgan, 138 Ill. App. 3d at 101-02, 484 N.E.2d at 1293.

In Day, the officer who conducted the pat-down pursuant to a Terry stop testified that he noticed a “small rectangular object in the defendant’s right front pants pocket.” (Day, 202 Ill. App. 3d at 539, 560 N.E.2d at 485.) The officer testified that he was not sure what the object was, but that it was about V-k inches in length and about a quarter-inch in thickness. (Day, 202 Ill. App. 3d at 539-40, 560 N.E.2d at 485.) The officer testified that he believed the object could have been “a razor blade wrapped up in something.” Day, 202 Ill. App. 3d at 540, 560 N.E.2d at 485.

The crucial distinction between Day and Morgan on the one hand and the present case on the other is that in both Day and Morgan the officer conducting the pat-down testified that he believed the object he felt during the pat-down might be some kind of weapon and he retrieved it for that reason; in the present case, the record contains no testimony by Smutz regarding either what he thought the object was that he felt during the pat-down or what his reasons were for removing and examining it. Based upon the record before us, it may be that Smutz removed the envelope from defendant’s pants pocket out of nothing more than mere curiosity; nothing in this record supports a claim that Smutz removed the envelope from defendant’s pants pocket because he believed the object he felt was a weapon and that its removal was necessary for his own protection. Simple curiosity is not a sufficient basis to justify the removal of such an object from a person’s clothing.

We decline to speculate about Smutz’s motivations, and we hold that in order for an officer to lawfully remove from a person’s clothing an object the officer feels during a pat-down search, that officer must believe the object might be a weapon and articulate a basis for that belief. The credibility of that belief, once it has been testified to, is a subject for judicial determination. Morgan, 138 Ill. App. 3d at 101-02, 484 N.E.2d at 1293.

We need not concern ourselves with the State’s argument that the envelope seized from defendant “could have felt like a weapon.” That issue becomes ripe only when the officer involved has first testified that he thought it was a weapon at the time he felt it.

This record does not present any claim by Smutz that he thought the object he felt in defendant’s pants pocket was a weapon, or that the removal of this object was necessary for his protection. We thus conclude that Smutz’ removal of this object from defendant’s pants pocket was a violation of the fourth amendment to the United States Constitution. Accordingly, the trial court erred in denying defendant’s motion to suppress this evidence.

In Morgan, this court said the following:

“While the erroneous failure to suppress evidence usually requires only a reversal and remandment for a new trial, here, the required suppression of the cannabis and the evidence of its taking from defendant would destroy any opportunity for the State to prevail on a new trial. Accordingly, we reverse the conviction and sentence but make no order for remandment.” (Morgan, 138 Ill. App. 3d at 102, 484 N.E.2d at 1294.)

The same analysis is applicable to the circumstances of the present case.

Reversed.

SPITZ and KNECHT, JJ., concur.


author: PRESIDING JUSTICE LUND JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK V. SHANNON, Defendant-Appellant.
    Fourth District
    No. 4—90—0185
    Opinion filed December 6, 1990.

      STEIGMANN, J., dissenting.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

After a jury trial, defendant Frederick V. Shannon was convicted of the offense of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4) and was sentenced to two years’ imprisonment. Defendant appeals, contending: (1) the State failed to prove the element of intent as it related to great bodily harm to the victim; (2) the trial court abused its discretion in denying an in limine motion which would have prohibited the victim’s wife from testifying, as well as the in-court display of the victim; and (3) the trial court committed reversible error when it refused to respond to an inquiry from the jury which indicated its question about the proof of intent.

Facts

The charges against the defendant resulted from an incident in the Rogers Theatre parking lot on September 14, 1988, at about 7:30 p.m. The parking lot, which is located immediately west of the theatre, is leased to the owner of Jimmy’s Tavern, which is located east of the theatre. The properties are on the north side of East Wood Street in Decatur.

While leaving the parking lot in his pickup truck, a piece of concrete was thrown through the driver’s window, hitting LaVern Ulland on the left side of his head. Ulland’s skull was fractured above the eye, the brain was bruised, and a blood clot developed. The victim was 62 years old and underwent at least two surgeries. He was hospitalized for a period of time and has lost speaking and thinking abilities.

Larry Shaw, owner of the tavern, testified that customers’ vehicles were being vandalized in the parking lot. On September 14, 1988, he had parked in the lot to observe if any wrongful activities were taking place. At this time, Ulland’s truck was parked on the lot and Ulland was in the tavern. Shaw observed four teenagers on the lot near an outcropping on the west side of the theatre building. He then went into the tavern to discuss the matter with an employee, Mike Booth. Shaw, together with Mike Rose and Steve Smith, then left the tavern by the front door to go to the parking lot. Booth, together with Dave Miller, went to the lot using the tavern’s back door. Ulland stayed in his seat at the bar.

According to the testimony of Shaw, Booth, Miller, Rose, and Smith, they approached the four youths, and Booth, in a calm manner, explained that they should leave the lot because of the history of vandalism. The four were not pleased, but did not argue. At this time, the defendant and another male came across the street, used some vulgarity toward the men, and, together with the other four teenagers, began walking north off the lot. Booth testified the men remained calm and did not talk to the defendant. According to the five witnesses for the State, only Booth talked to the teenagers; and he did so politely.

The State witnesses testified that as the six teenagers were leaving the lot by going in a northerly direction, Ulland came to the lot, stood for a short time and said, “See ya, Bubba [Dave Miller]. I’m going to the truck.” According to the witnesses for the State, he did not talk to the teenagers. He backed his truck in a southeasterly direction, heading to the north, with his headlights shining toward the teenagers. The witnesses testified he killed the motor once, restarted it, and was driving slow. According to the witnesses, one of the teenagers ran to the front of the truck with a coat, playing like a bullfighter. There was testimony that the defendant ran along the passenger side of the truck toward the rear, stopped to pick something up, went around the back of the truck to the driver’s side, and appeared to throw something at Ulland. The truck motor revved up to a high speed, and Ulland slumped over the steering wheel. The vehicle evidently did not move. The teenagers ran, and some of the men who had come from the tavern approached the truck to find blood coming from Ulland’s head, with a piece of concrete with blood and hair on it on the truck seat.

The defendant produced a 14-year-old and two 13-year-old girls as occurrence witnesses. They testified they were across the street and saw the truck going back and forth trying to run over the teenagers. The defendant testified that Ulland was trying to hit them. He stated he was on the right side of the truck and threw a rock, and a person named Adrian threw a rock through the driver’s side window. The defendant did call in a complaint to the police later that same evening, contending that the driver of the pickup truck had tried to hit them. The account of Ulland trying to hit the teenagers is in direct conflict with the testimony of all the State’s witnesses.

I

Defendant first argues the State failed to prove beyond a reasonable doubt that he intended to cause great bodily harm. One of the elements of the offense of aggravated battery is intentionally or knowingly committing an act causing great bodily harm. (People v. Roman (1981), 98 Ill. App. 3d 703, 706, 424 N.E.2d 794, 797; Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a).) Defendant admits there exists an ordinary presumption that a person intends the natural and probable consequences of his act (see People v. Hartzol (1976), 43 Ill. App. 3d 924, 926, 357 N.E. 2d 729, 731), but argues the presumption shifts only the burden of production, not persuasion, to the defendant as to his mental state, citing Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450. Defendant then correctly states once he introduced evidence contrary to the presumption, the presumption ceased to have effect. People v. Farrell (1980), 89 Ill. App. 3d 262, 265, 411 N.E.2d 927, 930.

However, the Farrell opinion goes further and says “after Farrell denied intending to cause aggravated damage, the State had to prove his intent by circumstantial evidence.” (Farrell, 89 Ill. App. 3d at 265, 411 N.E.2d at 930, citing People v. Almond (1975), 31 Ill. App. 3d 374, 376, 333 N.E.2d 236, 238.) Farrell’s conviction of aggravated battery resulted from his hitting the victim in the eye with his fist, and the appellate court affirmed the conviction. Here, as in Farrell, there is substantial evidence of defendant’s hostile action, though contrary to what defendant related, that forms a basis for the finding that the criminal intent existed. The State’s witnesses testified to different conduct of the defendant than what he related. There was specific testimony of defendant throwing the piece of concrete in the driver’s side window. Rather than believing defendant’s account of the victim trying to run defendant and his friends down, the fact finder had ample evidence of defendant and his friends harassing the victim. Resolution of factual disputes and the assessment of the credibility of the witnesses is for the jury, and the reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138.) There was adequate proof of the criminal intent to sustain the jury’s determination.

II

The defendant contends the trial court committed reversible error in allowing the victim’s wife to testify as to his present condition and erred in allowing the victim to appear before the jury. The alleged error is based on the evidence being so prejudicial as to outweigh the probative value, and that it was cumulative to that presented through the medical doctors who testified. It is also contended that defendant did not contest the extent of the injury, so no basis for the evidence exists.

The defendant entered a plea of not guilty and contended he did not throw the rock which hit the victim and, if he did, he did not intend serious injury. However, a plea of not guilty puts all aspects of the charge in issue, and the State may prove its case with any evidence it desires, regardless of the defendant’s willingness to stipulate. (People v. Wright (1974), 56 Ill. 2d 523, 531, 309 N.E.2d 537, 541; People v. Jurezak (1986), 147 Ill. App. 3d 206, 213, 497 N.E.2d 1332, 1338.) Gruesome and cumulative evidence may properly be admitted. People v. Foster (1979), 76 Ill. 2d 365, 377-78, 392 N.E.2d 6, 11; Jurezak, 147 Ill. App. 3d at 213, 497 N.E.2d at 1338.

It is true that admissibility of evidence may also depend upon whether the probative value outweighs its prejudicial effect to the defendant. (See People v. Monroe (1977), 66 Ill. 2d 317, 323, 362 N.E.2d 295, 297.) It is the function of the trial judge to weigh the probative value and potential prejudicial effect of such evidence. (People v. Greer (1980), 79 Ill. 2d 103, 117, 402 N.E.2d 203, 209.) The exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant. People v. Williams (1983), 97 Ill. 2d 252, 291, 454 N.E.2d 220, 238.

The velocity of the piece of concrete which hit the victim in this case is established in part by the evidence from the observing witnesses and in part by the injury to the victim. A State witness indicated that the defendant threw it with force. Defendant, while denying throwing the concrete through the left window, said he did not intend injury. The velocity is then circumstantial evidence of intent and is relevant. Proving the seriousness of the injury was the State’s right, and it was important in establishing the velocity. The trial judge did not abuse his discretion in allowing the victim’s wife to testify and allowing the jury to see the victim with the indentation in his head.

Ill

The jury was instructed as to the definition of battery and aggravated battery, as is provided by Illinois Pattern Jury Instructions, criminal. During deliberations, a note was sent to the court which stated: “On the first proposition for Agg. Batt. clarify is it intent to throw the Rock and it Resulted in great Bodily Harm or is it to throw it the Rock intending to do great Bodily Harm.”

The defense counsel requested that the court inform the jury that the latter definition was correct. The trial court refused and entered the jury room, telling the jurors to look at the instructions and use their common sense. The verdict of guilty of aggravated battery was subsequently returned.

The instructions relating to aggravated battery follow (see Illinois Pattern Jury Instructions, Criminal, Nos. 11.05, 11.07, 11.08 (2d ed. 1981)), and were stated by the court when the judge gave instructions as follows:

“A person commits the offense of aggravated battery when he, in committing a battery, intentionally causes great bodily harm to the person harmed. A person commits the offense of battery when he intentionally, without legal justification, and by any means, causes bodily harm to another person. To sustain the charge of aggravated battery, the State must prove the following propositions: First, that the Defendant intentionally, without legal justification, caused great bodily harm to LaVern Ulland, and, second, that the Defendant was not justified in using the force which he used. If you find from your consideration of all of the evidence, that each one of these propositions has been proved, beyond a reasonable doubt, you" should find the Defendant guilty. If you find from your consideration of all of the evidence, that any one of these propositions has not been proved beyond a reasonable doubt, you should find the Defendant not guilty.”

This recitation was a combination of People’s instructions Nos. 8, 9, and 10. Instruction No. 8, which was submitted to the jury on a separate sheet, provided:

“A person commits the offense of aggravated battery when he, in committing a battery, intentionally causes great bodily harm to the person harmed.”

The general rule as to clarification of instructions is set forth in People v. Harmon (1968), 104 Ill. App. 2d 294, 301, 244 N.E.2d 358, 361, quoting 23A C.J.S. Criminal Law §1376, at 1000, as follows:

“ ‘If jurors differ as to the instructions they should come into court and have them repeated, or if they wish more information as to the law they should request it of the court, and it has been held that it is not only the right but the duty of the court to reinstruct on any question of law arising from the facts on which the jury say they are in doubt, and on which they ask further instructions. Where the jury make their difficulties explicit, the judge should clear them away with concrete accuracy; and where the question asked is not clear, it is the duty of the court to seek clarification.’ ”

See also People v. Land (1975), 34 Ill. App. 3d 548, 550, 340 N.E.2d 44, 46 (wherein the trial court was reversed when the jury was not allowed to express its confusion); People v. Morris (1980), 81 Ill. App. 3d 288, 290, 401 N.E.2d 284, 286 (wherein the jury requested direction relative to burglary conviction where a defendant may not have entered the residence and the accountability instruction had not been given); People v. Kucala (1972), 7 Ill. App. 3d 1029, 1035, 288 N.E.2d 622, 627 (wherein the trial court refused to clarify the issue of when a forcible felony began).

However, the general rule is tempered by the rule that the trial court may properly exercise its discretion and decline to answer the jury’s inquiries where the given jury instructions are readily understandable and sufficiently explain the relevant law. People v. Palmer (1982), 111 Ill. App. 3d 800, 807, 444 N.E.2d 678, 683.

Normally, the Illinois Pattern Jury Instructions as to aggravated battery are readily understandable. In this case, however, a different situation arises because of the issue earlier discussed, i.e., the presumption that a person intends the natural and probable consequences of his act. No instructions relative to this issue were given to the jury. Hence, when the jury indicated confusion as to whether the required “intent” was to throw the rock, doing great bodily harm, as contrasted with throwing the rock intending to do great bodily harm, additional clarification was required. If not, it is possible, regardless of the instruction defining aggravated battery, that the jury could have based its verdict of guilt on finding that the defendant did intend throwing the concrete, but without finding that beyond a reasonable doubt the defendant intended to cause the great bodily harm.

We realize the apparent clarity of the aggravated battery instruction, but also recognize the confusion caused by the particular facts and arguments in this case. This cause must be reversed and remanded for a new trial.

Reversed and remanded.

GREEN, J., concurs.

JUSTICE STEIGMANN,

dissenting:

Because I do not agree with the majority that the trial court abused its discretion in choosing not to respond to the jury’s inquiry, I respectfully dissent. There was nothing unusual or particularly difficult about the evidence before the jury in this case nor the issues it was called upon to resolve. Accordingly, in my judgment, there is nothing in this record upon which the majority can find an abuse of the trial court’s discretion.

I fear that a reversal on the facts in this , case will have serious-consequences. -Deliberating juries frequently ask questions, some of which make sense, many of which do not. This reversal sends a strong message to trial judges throughout the State that the appellate courts are going to be second-guessing the exercise of their discretion if they decline to answer jury questions; therefore, they would be foolish to do so.

One can only shudder at the likely responses judges will feel forced to give to jury questions, particularly when those responses by definition are without any guidance, such as a standard IPI-Criminal instruction, and frequently must be given during the long hours of jury deliberation, when both court and counsel usually are not performing at their best.