author: PRESIDING JUSTICE HEIPLE

text:
      In re MARRIAGE OF PAULA ANN FOWLER, f/k/a Paula Ann McCloud, Petitioner-Appellant, and GEORGE McCLOUD, Respondent-Appellee.
    Third District
    No. 3—89—0074
    Opinion filed January 16, 1990.

      Conway & Shoemaker, of Aledo (Dwight L. Shoemaker, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Petitioner, Paula Ann Fowler, f/k/a Paula Ann McCloud, and respondent George McCloud were married on October 5, 1968. During the course of their marriage, one child was born to petitioner and respondent, namely David McCloud, born July 26, 1973. On April 11, 1979, the circuit court of Mercer County ordered the dissolution of the marriage of petitioner .and respondent, incorporating the voluntary agreement made between the parties. The judgment of dissolution provided, inter alia, that the petitioner would have custody of the child, that the respondent would have reasonable visitation rights, that the respondent would pay child support of $25 per week, and that the petitioner would receive the Federal and State income tax dependent exemption for the minor child. On July 22, 1981, the circuit court modified the judgment of dissolution by increasing the child support to $50 per week.

On October 5, 1988, petitioner filed two actions with the circuit court of Mercer County. A petition for rule to show cause requested: (1) that the respondent be ordered to show why he should not be held in contempt of court for his failure to comply with the judgment of dissolution by making timely child support payments; (2) that a money judgment be entered against the respondent and in favor of the petitioner in the sum of the arrearage, costs, expenses and interest; and (3) that the court require the respondent to reimburse the petitioner for reasonable attorney fees and costs in connection with the preparation of the petition. A petition to increase child support was filed concurrently by the petitioner, requesting that the court modify the judgment of dissolution by increasing the child support to a sum commensurate with the respondent’s income and that the respondent be required to pay the petitioner’s reasonable costs and attorney fees incurred in connection with the petition. The respondent filed a counterpetition requesting that the court allocate the dependent tax exemption to him.

The circuit court of Mercer County filed an order on January 17, 1989, concerning the rule to show cause, petition and counterpetition. The order discharged the rule to show cause, stating that respondent was not in wilful contempt of court, denied the petitioner’s petition to increase child support and denied the respondent’s counterpetition, but allowed the respondent the dependent exemption on his Federal and State income tax returns. On February 10, 1989, petitioner filed her notice of appeal.

Petitioner contends the following on appeal: (1) that the trial court erred in failing to award attorney fees and costs for her petition for rule to show cause because respondent was not justified in his failure to pay his child support; (2) that the trial court’s denial of her petition for increased child support was an error because the increase in support costs, coupled with the increase in respondent’s salary, establishes substantial change warranting an increase in child support; (3) that the trial court erred in failing to order the respondent to pay at least the minimum amount of child support required under section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 505); and (4) that the trial court lacked jurisdiction to transfer the income tax exemption for the dependent child to respondent under section 152(e) of the Internal Revenue Code (26 U.S.C. §101 et seq. (1982)).

Petitioner argues that she is entitled to reasonable attorney fees and costs under section 508 (Ill. Rev. Stat. 1988, ch. 40, par. 508), because the respondent’s failure to make timely child support payments was without cause or justification. The trial court found that on the date of the hearing on the rule to show cause, an arrearage of $50 remained on child support. It was stipulated that following service of summons on respondent in October 1988, a $750 arrearage was brought current. The trial court further stated that the respondent was not in wilful contempt of court for failure to pay child support. Section 508(a) of the Act empowers a trial court to award attorney fees in a dissolution proceeding, and section 508(b) provides specifically for fee awards in child support proceedings. Section 508(b) provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 508(b).

The trial court discharged the rule to show cause, citing the respondent’s $750 payment on or about October 26, 1988, and testimony that the minor child had resided with respondent for approximately 10 of the nearly 32 weeks during which child support payments were late or missing. While it is true that only $50 remained in arrearage as of the date of the trial court’s hearing on the rule to show cause, it must be noted that a $750 arrearage was paid after commencement of proceedings by petitioner. The petitioner incurred costs of litigation before she received any payment on the arrearage. Additionally, while it is undisputed that the minor child spent approximately 10 weeks of continuous visitation with the respondent-father during the summer of 1988, such visitation does not excuse the respondent’s obligation to make timely child support payments in accordance with the judgment of dissolution entered by the circuit court of Mercer County.

The record reflects that respondent was continuously employed during the time he failed to make support payments, and he took no steps to alert the court of an inability to meet his child support obligations. As a result of respondent’s unjustified inattentiveness toward his child support obligations, petitioner incurred the expense of legal action. An award of attorney fees is mandatory upon a court’s finding of a failure to pay without cause or justification. (In re Marriage of Kennedy (1988), 170 Ill. App. 3d 726.) In accordance with section 508(b) of the Act, the petitioner should be reimbursed for reasonable costs and attorney fees in connection with her petition for rule to show cause.

Petitioner next alleges that the trial court erred in denying her petition for increased child support. She argues that the cost of supporting the minor child has increased by 300% since the last modification of child support in July 1981, and that respondent’s salary has increased by 22% since that time, thereby warranting an increase in child support payments. The record reveals that in 1981 the minor child was approximately eight years old and neither parent was aware of any special dental or eyesight problems. The record further shows that since July 1981, the minor child has had orthodontic care, has had eyeglasses prescribed, and has become more involved in extracurricular activities requiring a variety of special equipment. The petitioner has borne the costs for those items listed above. Costs of supporting the minor child have certainly risen due to his age, but we do not believe that the age factor requires a mechanical increase in child support. Harner v. Harner (1982), 105 Ill. App. 3d 430.

The trial court has considerable discretion in the modification of child support, and the court’s decision should not be disturbed by a reviewing court absent an abuse of discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286.) The trial court in the instant case found that while the respondent’s income has increased since 1981, the petitioner’s income has also increased substantially, and that the petitioner is better able, financially, to meet the needs of the minor child. There is no evidence in the record that the decision of the trial court was an abuse of its discretion.

Section 505(a) of the Act sets forth guidelines for the minimum amount of child support as follows, in pertinent part:

“(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children Percent of Supporting Party’s Net Income
1 20%
2 25%
3 32%

(Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1).) According to the provisions of section 505(a)(1), the appropriate amount of support for respondent to pay equals 20% of his net income. The trial court’s order of January 12, 1989, stated that while petitioner is better able to meet the needs of the minor child, an award of child support in an amount below the suggested guidelines is not justified. However, the trial court denied the petition to increase child support without making provisions to adjust the amount of support to meet the guidelines of section 505(a)(1) of the Act. We find that the amount of child support should, in this case, be reconciled with the minimum guidelines of section 505(a)(1) of the Act, namely 20% of respondent’s annual net income.

Petitioner asserts that the trial court erred in awarding respondent the tax exemption for the minor child. Petitioner contends that the trial court did not have jurisdiction under section 152(e) of the Internal Revenue Code (Code) (26 U.S.C. §101 et seq. (1982)), to transfer the exemption to respondent. This court squarely addressed this issue in In re Marriage of Van Ooteghem (1989), 187 Ill. App. 3d 696. The Van Ooteghem case was based solely on the power of the trial court under section 152(e) of the Code, which generally provides that a custodial parent is entitled to the exemption. Following the decision of In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, this court found that a State court is not preempted by section 152(e) from allocating the tax exemption to the noncustodial parent. Additionally, the Van Ooteghem decision provides that a trial court has authority to order a custodial parent to effectuate waiver of the exemption by signing the declaration form required under section 152(e)(2) of the Code. A trial court decidedly has jurisdiction to transfer the dependent child tax exemption from the custodial to the noncustodial parent.

The power to transfer the exemption from one parent to the other is not without limitations. This court has determined that the congressional intent behind the language of section 152(e) of the Code was to eliminate the role of the Internal Revenue Service in the determination of which parent was entitled to the tax exemption. (In re Marriage of Van Ooteghem (1989), 187 Ill. App. 3d 696.) With that in mind, the trial court assumes the responsibility of deciding which parent is entitled to the exemption. The allocation of the .tax exemption is an element of support, over which a trial court has considerable discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286.) However, in the instant case we believe the trial court abused that discretion. As noted above, the trial court stated that an award of child support below the statutory minimum was unjustified. The court then proceeded to maintain support at an amount below the statutory guidelines and award respondent the dependent child exemption, effectively decreasing respondent’s support obligations. The record does not reveal any circumstances warranting the transfer of the tax exemption to the respondent.

For the foregoing reasons, we reverse the decision of the trial court and remand this matter for further proceedings commensurate with this opinion.

Reversed and remanded.

SCOTT and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    FARM CREDIT BANK OF ST. LOUIS, Plaintiff, v. BRUCE GAMBLE et al., Defendants (Bruce Gamble, Third-Party Plaintiff-Appellant; Reynelds M. Everett, Jr., et al., Third-Party Defendants-Appellees).
    Third District
    No. 3—89—0398
    Opinion filed May 4, 1990.

      Charles E. McFarland, of Newton Falls, Ohio, for appellant.
    David E. Jones, of Thomas & Hinshaw, Culbertson, of Peoria, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kathryn A. Spalding, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a Henry County circuit court judgment dismissing defendant third-party plaintiff Bruce Gamble’s (Gamble’s) third-party action against third-party defendants Reynolds Everett (Everett) and Everett & Young, EC. (Firm).

The record shows that on July 16, 1981, Gamble and other family members obtained a loan for $276,300 from the Farm Credit Bank of St. Louis (Bank) to purchase a farm in Stark County. As collateral, Gamble pledged a property in Stark County and a Henry County farm owned by Mary Gamble, his mother. Gamble allegedly failed to make the mortgage payments, and the bank filed foreclosure actions in the Stark County and Henry County circuit courts against Gamble and others. The two cases were consolidated.

Gamble answered the complaint with affirmative defenses and filed this third-party complaint against Everett and his firm. Gamble contends the mortgage and note were void as against public policy because his mother’s farm was pledged as collateral through Gamble’s fraudulent use of a power of attorney. Gamble also claimed the mortgage and note were void because he was fraudulently induced by the bank, Everett, and his firm to sign the mortgage. Gamble’s third-party complaint alleged, inter alia, fraud and legal malpractice on the part of Everett and his firm.

Everett and his firm filed a motion to dismiss the third-party complaint. The trial court granted the motion and dismissed the third-party complaint with prejudice and without leave to replead. The court noted that Gamble has not and cannot state a cause of action against Everett or the firm. On June 9, 1989, the trial court made a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), making the judgment of dismissal appealable.

Initially, Gamble asserts that his third-party complaint sufficiently sets forth the elements to state two causes of action; fraud and legal malpractice. This court is aware that all well-pleaded facts must be taken as true on a motion to dismiss. (Kenworthy v. Young (1979), 70 Ill. App. 3d 144, 388 N.E.2d 217.) We are also aware that a third-party complaint will be dismissed where the third-party plaintiff cannot demonstrate that he is entitled to relief. Burke v. Sky Climber, Inc. (1974), 57 Ill. 2d 542, 316 N.E.2d 516.

In the instant case, we need not address the issue of whether Gamble was fraudulently induced into entering into this mortgage because, for similar reasons, we find Gamble’s action for both it and legal malpractice to be premature.

Gamble asserts that he sufficiently alleged a cause of action in legal malpractice against Everett and his firm. In order to state a cause of action for legal malpractice the plaintiff must plead the existence of an attorney/client relationship; a duty arising from that relationship; a breach of that duty; causation and actual damages. (Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035.) Damages are never presumed, and the plaintiff must, therefore, demonstrate that he has sustained a monetary loss as the result of some negligent act on the lawyer’s part. Chicago Red Top Cab Association, Inc. v. Gaines (1977), 49 Ill. App. 3d 332, 364 N.E.2d 328.

In Bartholomew, the plaintiff was a State employee injured in a motor-vehicle collision while working in the course of her employment. She sued the driver of another vehicle involved in the collision seeking to recover for her injuries. That driver, however, was an employee of the board of trustees of the University of Illinois who was also working in the course of his employment. The plaintiff joined a former attorney as a party defendant, alleging that he had committed malpractice for failing to timely file a claim with the Court of Claims against the defendant’s employer. The circuit court dismissed the complaint as to both defendants. That court ruled that no cause of action was stated against the other driver because both the plaintiff and the driver were employees of the same employer operating in the course of their employment and were barred from suing each other for tort thus occurring based on the fellow-servant rule of section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)).

On appeal, the Bartholomew court reversed the dismissal of the negligence counts, holding that the State and the board of trustees were sufficiently different entities to negate operation of section 5(a) of the Workers’ Compensation Act. That court, however, affirmed the dismissal of the legal malpractice count. The court deemed the malpractice count to be premature because damage would not occur to the plaintiff-employee from the failure to file in the Court of Claims unless and until she was unable to receive full compensation for her injuries in her revived common law action.

Similarly, Gamble at this point cannot demonstrate that he was injured by Everett’s advice. Gamble’s damage allegations are that he suffers contingent liability to the heir of his mother’s farm, Alfred Greiert, his present liability in the foreclosure action, and the damages resulting from his having to defend himself in the foreclosure action. Gamble alleges that the damages he has incurred in the still pending foreclosure action are a direct result of Everett’s advice. We fail to see, however, how this allegedly bad advice has anything to do with Gamble’s alleged failure to make a mortgage payment. We find that Gamble was not damaged by Everett and the firm with respect to his possible liability to the bank in the pending foreclosure proceeding. Moreover, with respect to the contingent liability to Greiert, we find these alleged damages to be speculative. What Gamble essentially argues is that he may be held liable to Greiert in the event that Greiert successfully sues him for breach of a fiduciary duty. Gamble's malpractice action against Everett and the firm, however, is an action for damages and has no basis unless Gamble has sustained a monetary loss as the result of some negligent act on the part of Everett or the firm. Chicago Red Top Cab Association, Inc. v. Gaines (1977), 49 Ill. App. 3d 332, 364 N.E.2d 328.

Gamble’s speculation that Greiert may at some point bring a cause of action against him is only speculation. Actions in legal malpractice must be based on damages incurred. (Bronstein v. Kalcheim & Kalcheim, Ltd. (1980), 90 Ill. App. 3d 957, 414 N.E.2d 96.) Therefore, because Gamble has not incurred damages at this juncture, we find that this foreclosure action is not the proper forum for Gamble’s attempt to state a cause of action for legal malpractice.

Gamble alternatively argues that if the dismissal of the third-party complaint is upheld, the judgment should expressly reflect that the judgment is not intended to bar a subsequent action if such an action ripens. If Gamble does not succeed in the foreclosure action and a subsequent suit is brought against him by a qualified party, and Gamble wishes to then file a third-party action against Everett and his firm, Gamble should not be precluded from doing so based upon the April 19, 1989, order in the instant case. We conclude that the judgment here must be amended. We deem fairness to require amendment pursuant to Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)).

Accordingly, we amend the final sentence of the judgment appealed from, which states “and therefore grants third-party defendants’ motion to dismiss without leave to replead” to read “and therefore grants third-party defendants' motion to dismiss as premature and without prejudice to refiling if such cause of action should ripen.”

Judgment modified and, as modified, affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE INGLIS JUSTICE REINHARD,

text:
    MARY V. MISTER et al., Plaintiffs-Appellees, v. A.R.K. PARTNERSHIP et al., Defendants-Appellants.
    Second District
    No. 2—89—1076
    Opinion filed April 25, 1990.
    Rehearing denied May 22, 1990.

      REINHARD, J., specially concurring.
    Appel & Appel, Ltd., of Lansing (Thomas A. Appel, of counsel), for appellants.
    Kinoy, Taren, Geraghty & Potter, P.C., of Chicago (Miriam N. Geraghty, of counsel), for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendants, A.R.K. Partnership (A.R.K.) et al., owners and managers of certain rental apartments, bring this appeal from an order of the circuit court of Du Page County denying their motion to dissolve a temporary restraining order entered against them. The restraining order prohibited defendants from renting two of their apartments to any persons except plaintiffs during the pendency of plaintiffs’ separate civil rights action against defendants before the Illinois Human Rights Commission (the Commission). That action is based on plaintiffs’ claim that defendants’ policy of refusing to rent apartments to unmarried couples of the opposite sex violates the prohibition against discrimination based on sex or marital status found in the Illinois Human Rights Act (the Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 102(A)).

On appeal, defendants raise several arguments in support of their contention that the trial court should have dissolved the temporary restraining order entered against them. Defendants claim the trial court erred in finding that: (1) plaintiffs demonstrated a likelihood of success on the merits of their complaint, because the Act does not protect unmarried cohabitation; (2) plaintiffs would suffer irreparable injury unless the temporary restraining order was granted; and (3) the equities balanced in plaintiffs’ favor. Defendants also argue that their constitutional rights to religious freedom and their right to use their property as they wish would be impaired if they were forced to rent to unmarried couples. The resolution of this cause requires this court to address an issue of first impression in Illinois, namely, whether the Act prohibits discrimination against unmarried, cohabiting couples in real estate transactions.

The facts underlying this appeal can be briefly summarized. Plaintiffs in this action are two unmarried couples. Each couple is comprised of a male and female who presently live together. On July 8, 1989, plaintiffs Mary Mister and Robert Keene responded to a newspaper advertisement seeking tenants for the LeClair Apartments, defendants’ apartment complex in Wheaton, Illinois. Mister and Keene met with defendant Sandi Martin, a rental agent for the Le-Clair Apartments, and selected a two-bedroom apartment to rent for $675 per month beginning September 1, 1989. Mister and Keene submitted $50 to process their credit applications and $100 to hold the apartment until they moved in. Subsequently, the couple gave notice to their previous landlord that they would be moving out of their apartment by September 1, 1989. On July 13, 1989, Jan Rowe, a representative of defendant A.R.K., contacted Mister at work and asked if she and Keene were married. Mister responded that they were not and that, although the two were engaged, no definite wedding date had been set. Rowe informed Mister that defendants had a strict policy against renting apartments to unmarried couples of the opposite sex. On July 17, 1989, Mister and Keene received a letter from defendant Bruno Zordan of A.R.K. informing them that their “application was rejected because of our company policy on unmarried couples.” Plaintiffs’ $150 advance money was returned with the letter.

Plaintiffs Steve Dunn and Becki Rhodes also applied to rent a two-bedroom apartment at the LeClair apartments. The two hoped to move into the apartment complex on August 1, 1989. After selecting an apartment, Dunn and Rhodes filled out credit applications and submitted $50 to process the applications and $100 to hold the apartment until they moved in. At some point thereafter, Dunn received a call from Norm Martin of LeClair Apartments. Martin asked Dunn whether he and Rhodes were married, and Dunn responded that they were not. On July 12, 1989, Dunn was contacted by Jan Rowe of Le-Clair Apartments to inform him that the owners would not rent apartments to unmarried couples. The $150 deposit was returned to them. Dunn and Rhodes’ previous lease expired on July 31, 1989, and the couple was only able to extend the lease until the end of August.

All four plaintiffs contended that they were ready, willing and able to move into LeClair Apartments on September 1, 1989. Both couples averred that the apartments they selected were convenient, within their price range and attractive to them. It is not disputed that defendants would have rented to plaintiffs if they were married or if each opted to live with a member of the same sex (i.e., two males or two females could rent an apartment at LeClair). Although defendants assert that the basis for their rental policy is their religious belief that unmarried cohabitation is immoral, there is nothing in the record concerning defendants’ religious beliefs.

On July 25, 1989, plaintiffs filed a complaint against defendants with the Commission. The complaint alleged that defendants’ policy of refusing to rent to unmarried couples of the opposite sex violated plaintiffs’ right to be free from discrimination in real estate transactions on the basis of sex or marital status (Ill. Rev. Stat. 1987, ch. 68, pars. 1 — 102(A), 3 — 102(A)). On July 31, 1989, plaintiffs appeared before the circuit court and requested emergency relief in the form of a temporary restraining order pursuant to section 7 — 104 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 104). Plaintiffs sought to prevent defendants from renting two units at LeClair apartments to anyone other than plaintiffs. Plaintiffs alleged that, if the order was not issued, defendants might rent all LeClair apartment units and render ineffectual any prospective relief from the Commission. Submitted along with plaintiffs’ complaint was the certification of the director of the Illinois Department of Human Rights stating, inter alia, that the civil rights complaint alleged a prima facie violation of the Act. (See Ill. Rev. Stat. 1987, ch. 68, par. 7 — 104(A)(1).) The trial court entered an agreed order temporarily restraining defendants from renting the apartments that plaintiffs sought.

Subsequently, after a hearing at which both parties were represented, the trial court entered a temporary restraining order enjoining defendants from renting the apartments in question. The court found, among other things, that plaintiffs had demonstrated a likelihood that they would succeed on the merits of their claim before the Commission; that plaintiffs might be irreparably harmed if the restraining order did not issue because defendants might rent all available units at the LeClair Apartments and thus render ineffective any relief awarded by the Commission; and that the injury to plaintiffs if no restraining order issued would be greater than that to defendants if they were restrained. Defendants were enjoined from renting two apartments at LeClair to anyone but plaintiffs pending further order of the court. The court required plaintiffs to post bond with their attorney in an amount equal to two months’ rent.

On September 8, 1989, defendants filed a motion to dissolve the temporary restraining order. After hearing argument from counsel for both parties on September 18, 1989, the trial court denied the motion to dissolve the temporary restraining order. Defendants now appeal from the entry of that order.

The Act provides that, generally, the Commission, not the circuit courts of Illinois, has exclusive jurisdiction over civil rights complaints. (People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 520-21.) Section 7 — 104(A)(1) of the Act, however, also allows a civil rights complainant to petition the circuit court for temporary relief to prevent a civil rights respondent “from doing or causing any act which would render ineffectual an order which the Commission may enter with respect to the complainant.” (Ill. Rev. Stat. 1987, ch. 68, par. 7— 104(A)(1).) The circuit court proceedings in most cases are governed by the established rules for injunctive relief. (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 104(A)(2).) Where injunctive relief is sought in the case of alleged discrimination in a real estate transaction, however, the Act provides that such relief must be limited to five days in duration unless the defendant agrees otherwise or the court finds that there is substantial evidence of discrimination. (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 104(A)(3).) Here, defendants have not argued that the length of the injunction is improper.

There are three kinds of injunctive relief that may be awarded by Illinois courts: a temporary restraining order, a preliminary injunction, and a permanent injunction. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 385.) In the present case, plaintiffs were awarded what is usually the most transitory of the three varieties of injunctive relief, a temporary restraining order. Where, as here, the defendant is afforded notice and a hearing, there is no practical difference in results between a temporary restraining order and a preliminary injunction. (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B Graphic Arts International Union (1976), 63 Ill. 2d 514, 524.) A party seeking a preliminary injunction (or its functional equivalent, an indefinite temporary restraining order with notice and a hearing) must establish that: (1) he possesses a certain and clearly ascertained right which needs protection; (2) he will suffer irreparable harm without the protection of an injunction; (3) there is no adequate remedy at law for his injuries; (4) there is a substantial likelihood of success on the merits; and (5) in the absence of preliminary relief, he would suffer greater harm than would the defendant if relief were to issue. (Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291.) The decision whether to grant a preliminary injunction rests within the trial court’s broad discretionary powers, and appellate review of the court’s order is limited to a determination of whether the court has abused its discretion. Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 673.

On appeal, defendants argue that three of the above criteria were not met and, therefore, that the trial court erred in denying the motion to dissolve the restraining order. Defendants assert that plaintiffs did not demonstrate: (1) a likelihood of success on the merits of their civil rights action; (2) that they would suffer irreparable harm if the injunction did not issue; or (3) that the balance of equities favored plaintiffs. Because we agree with defendants that plaintiffs failed to demonstrate a likelihood of success on the merits of their civil rights complaint before the Commission, we need only address the first of defendants’ contentions.

To warrant injunctive relief, plaintiffs must demonstrate a likelihood of success on the merits of their underlying civil rights action filed with the Commission. However, plaintiffs are not required to make out a case that would entitle them to relief on the merits. Instead, they need only show that they raise a “fair question” about the existence of their right and that the court should preserve the status quo until the case can be decided on the merits. (Buzz Barton & Associates, 108 Ill. 2d at 382.) Here, defendants claim that plaintiffs cannot prevail on the merits because the Act does not protect cohabitation between unmarried adults of the opposite sex. Because the facts are not substantially in dispute, the question here is, by what legal standard are we to measure plaintiffs’ likelihood of success on the merits? In other words, we are required to make a threshold determination of whether plaintiffs’ conduct (unmarried cohabitation) is protected under the Act before we can determine if it was an abuse of discretion for the trial court to conclude that plaintiffs’ factual situation evidenced a likelihood of success on the merits. Without such a legal determination, it would be impossible to gauge the strength of plaintiffs’ case. (See Professional Business Management, Inc. v. Clark (1967), 83 Ill. App. 2d 236, 242.) The resolution of this purely legal question is proper here and does not usurp the authority of the Commission, because the question of the scope of an administrative agency’s power or authority is ultimately a judicial function. Mitee Racers, Inc. v. Carnival-Amusement Safety Board (1987), 152 Ill. App. 3d 812, 816.

The Act protects against discrimination on the basis of “race, color, religion, sex, national origin, ancestry, age, marital status, [and] physical or mental handicap.” (Ill. Rev. Stat. 1987, ch. 68, par. 1— 102(A).) Marital status is defined as “the legal status of being married, single, separated, divorced or widowed.” (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 103(J).) The complaint plaintiffs filed with the Commission alleges that defendants’ policy of refusing to lease apartments to unmarried couples of the opposite sex constitutes unlawful discrimination on the basis of marital status and sex. Defendants, on the other hand, argue that the Act does not protect plaintiffs’ conduct. Our search of Illinois law presents no case dealing with this question, and thus the issue here is one of first impression in this State.

Defendants argue that their refusal to rent to plaintiffs is based on the nature of each couple’s consensual relationship, not their sex or marital status. Defendants note that the policy underlying the Act is the State’s desire to “secure for all individuals within Illinois the freedom from discrimination.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 102(A).) Thus, defendants argue, their policy is based not on each plaintiffs’ individual marital or sexual status, but on the nature of each couple’s relationship. Moreover, defendants note, the Act specifically allows “[Restricting the rental of rooms in a housing accommodation to persons of one sex.” (Ill. Rev. Stat. 1987, ch. 68, par. 3 — 106(F).) Although this exception is not directly applicable here because defendants’ apartment complex is not within the Act’s definition of a “housing accommodation” (Ill. Rev. Stat. 1987, ch. 68, par. 3 — 101(C)), defendants contend that this exception shows the legislature’s recognition that separation of the sexes can sometimes be permissible.

Plaintiffs, on the other hand, argue that defendants, by suggesting that the basis of their discrimination is plaintiffs’ “relationship,” distort the question of whether each plaintiff, individually, is being improperly discriminated against. Plaintiffs note that the reason defendants will not rent to them is because each plaintiff couple is comprised of single people of the opposite sex. If each plaintiff were married to the person with whom he or she wishes to live, defendants would not object. Similarly, if each plaintiff were of the same sex as the person with whom he or she wishes to live, defendants would not object. Thus, plaintiffs claim, the “relationship” defendants find objectionable is defined solely with regard to each plaintiffs’ marital status and sex, each of which is a characteristic the Act protects from discrimination. This is the basis for plaintiffs’ claim that the Act protects them from discrimination based upon their desire to live together as single people of the opposite sex.

Our object in interpreting the statute is to ascertain the intent of the legislature. In doing so, we must first look to the statutory language itself. Where such language is clear and unambiguous, the court may not rely on external aids to construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) We believe that the language of the Act does not dispositively determine which of the two interpretations advanced here is correct. Where, as here, a statute is unclear or susceptible to more than one meaning, the court must interpret the statute to clarify its application. (Eckman v. Board of Trustees for the Police Pension Fund (1986), 143 Ill. App. 3d 757, 762.) In such circumstances, a court should look to similar statutes as an aid to construction. (Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 27.) Comparison of similar enactments is proper even if the statutes are not strictly in pari materia. Biggiam v. Board of Trustees of Community College District No. 516 (1987), 154 Ill. App. 3d 627, 642.

In determining whether the Act protects cohabitation by unmarried adults of the opposite sex, we would be remiss if we did not examine the public policies embodied in the criminal prohibition against fornication found in section 11 — 8 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 8) and the statutory renouncement of common-law marriages found in section 214 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 214).

The statutory fornication provision was in effect the time the Act was adopted, when the alleged discrimination occurred, and also when the complaint with the Commission was filed. The provision stated:

“(a) Any person who cohabits or has sexual intercourse with another not his spouse commits fornication if the behavior is open and notorious.” (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 8(a).)

We note, however, that this section of the Code was recently amended, effective January 1, 1990. (See Pub. Act 86 — 490, eff. Jan. 1, 1990 (amending Ill. Rev. Stat. 1987, ch. 38, par. 11 — 8).) This amendment eliminated the “cohabits or” from the previous version. Thus, under the new law, the legislature has determined that the mere act of cohabitation with “another not his spouse” is not a violation of the fornication statute. Nevertheless, defendants argue, based on section 11 — 8 of the Code that was in effect at the time the Act was adopted and at the time of the complaint, that the legislature could not have intended to protect from discrimination the same behavior that used to be deemed criminal in nature.

In Jarrett v. Jarrett (1979), 78 111. 2d 337, 345, the Illinois Supreme Court reaffirmed that the fornication statute expresses this State’s public policy against open and notorious nonmarital cohabitation. Although it seems that the criminal prohibition against fornication may have fallen into disuse (see People v. Green (1916), 276 Ill. 346 (most recent appellate record of a successful fornication prosecution)), the court in Jarrett gave the policy underlying the fornication statute continued vitality in the marital dissolution setting. (Jarrett, 78 Ill. 2d at 346-47.) The court there stated that both the “fornication statute and the Illinois Marriage and Dissolution of Marriage Act evidence the relevant moral standards of this State, as declared by our legislature.” (Jarrett, 78 Ill. 2d at 346.) Thus, the criminal prohibition against fornication continues to represent Illinois’ public policy on this issue. Furthermore, we need not consider what effect the revised fornication statute has on Jarrett and the public policy of this State.

Plaintiffs’ interpretation of the Act would have us conclude that the legislature intended to protect from discrimination those individuals who choose to cohabit with a person of the opposite sex without entering into marriage. The fornication statute, as it existed when plaintiffs attempted to rent the apartments, evidenced this State’s policy against such a practice. We believe plaintiffs’ interpretation of the Act is in conflict with the long-standing public policy reflected by the fornication statute. Statutory provisions relating to the same subject matter should be construed harmoniously where possible. (Howard v. Board of Education of Freeport School District No. 145 (1987), 160 Ill. App. 3d 309, 312.) Therefore, defendants’ interpretation of the Act, which is in greater harmony with the fornication statute then in effect, should be preferred over that interpretation advanced by plaintiffs.

Plaintiffs, however, argue that their interpretation of the Act does not conflict with the fornication statute because the record does not indicate that their cohabitation was open and notorious, an essential element of the statute. It is true that only open and notorious unmarried cohabitation offends public policy (Jarrett, 78 Ill. 2d at 346), but plaintiffs miss the point when they state that their conduct prior to this litigation had not been open and notorious. We consider the mere fact that unmarried couples, such as plaintiffs, attempted to rent apartments is sufficient to satisfy the open and notorious requirement. To rule otherwise would require defendants, as the apartment owners, to rent to persons who, in effect, would have been violating the fornication statute.

It is much more likely that the legislature, cognizant of the public policy against open and notorious cohabitation, declined to extend the Act’s protections to unmarried cohabitants regardless of whether the couple’s conduct was open and notorious. Such a stance expresses neither approval nor disapproval of discreet cohabitation; couples who wish to live together without being married can certainly still do so, but they must find a landlord who does not object to the arrangement. The Act’s failure to protect such couples from “discrimination” merely evidences the legislature’s hesitancy to require landlords to acquiesce. This position is entirely consistent with the State’s dichotomous public policy on cohabitation, which is to respect “purely private relationships” without debasing “public morality” (Jarrett, 78 Ill. 2d at 346).

The public policy embodied in Illinois’ statutory renouncement of common-law marriages is similarly relevant here. (Ill. Rev. Stat. 1987, ch. 40, par. 214.) The legislature has refused to confer a legal status on such relationships because this would contravene Illinois’ strong public policy in favor of strengthening and preserving the integrity of marriage. (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 62.) Our State’s public policy disfavors private contractual alternatives to marriage. (Hewitt, 77 Ill. 2d at 64.) Our supreme court has stated:

“There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. Will the fact that legal rights closely resembling those arising from conventional marriages can be acquired by those who deliberately choose to enter into what have heretofore been commonly referred to as ‘illicit’ or ‘meretricious’ relationships encourage formation of such relationships and weaken marriage as the foundation of our family-based society?” (Hewitt, 77 Ill. 2d at 58.)

It is not the role of the judiciary to question the propriety of clearly established public policies or to assess their continuing vitality in light of changing societal norms. (See Hewitt, 77 Ill. 2d at 60-61.) In light of the legislature’s clear expression of a policy disfavoring private alternatives to marriage, it seems patently incongruous to suggest that the legislature would have afforded the Act’s heightened protections to unmarried cohabitants.

We wish again to emphasize that our inquiry here is directed only toward discovery of the legislature’s intended treatment of unmarried, cohabiting couples. In arriving at its policy in this regard, the legislature was not limited to either outlawing such practices or affording them a protected status under the law. A vast middle ground exists wherein such conduct might be neither prohibited by the State nor protected from private disapprobation. Only a very few suspect classifications, such as those drawn on the basis of race or religion, have been afforded the Act’s heightened protection against discrimination by private citizens. Plaintiffs here argue that the State has not chosen to place unmarried cohabitation on the middle plane and instead has elevated them to the same level as those classifications which deserve the law’s highest protections. Our exploration of the statutory provisions regarding fornication and common-law marriage has been undertaken only to assist us in determining whether the legislature could have intended such a result in light of the State’s longstanding public policies in this regard. We find plaintiff’s interpretation of the legislature’s intent to be irreconcilable with the State’s established policies disfavoring unmarried cohabitation and common-law marriage.

We hold, therefore, that the Act’s prohibition against discrimination on the basis of sex or marital status does not include a landlord’s refusal to rent an apartment to unmarried persons of the opposite sex.

Furthermore, we do not find plaintiffs’ other arguments to be compelling enough to detract from our holding. Plaintiffs direct our attention to a recent legislative attempt to amend the Act and claim that it is evidence of the legislature’s understanding that unmarried cohabitants are presently afforded protection under the Act. This amendatory effort, which would have specifically excluded unmarried cohabitants from the Act’s protections, passed the House of Representatives but was not acted upon by the Senate. (See 86th Gen. Assem., House Bill 1158, 1989 Sess.) We can ascribe little weight to this failed attempt to amend the law, as unsuccessful attempts to amend legislation generally are an uncertain guide to legislative intent. (Roberts v. Western-Southern Life Insurance Co. (N.D. Ill. 1983), 568 F. Supp. 536, 551 n.38.) Thus, the legislative history supports our conclusion that the Act was not intended to protect unmarried, cohabiting couples from discrimination.

We also reject plaintiffs’ contention that, because the Act is to be construed liberally, we should extend its protections to them. It is true that the Act, because it is remedial legislation, should be interpreted liberally to effect its purpose. (Board of Trustees of Community College District No. 508 v. Human Rights Comm’n (1981), 88 Ill. 2d 22, 26.) The rule of remedial construction, however, is a rule to be employed “in favor of those whom the legislation was intended to protect.” (See Equal Employment Opportunity Comm’n v. Pattin-Marion, A Division of Eastern Co. (S.D. Ill. 1984), 588 F. Supp. 41, 45.) Our inquiry here is whether unmarried cohabitants are, in fact, intended to be protected under the Act. It would serve no purpose to apply a rule of liberal construction to bring plaintiffs within the Act’s coverage when, as we have said, the rule is applied only in favor of those who are intended to be protected under the Act.

Finally, plaintiffs refer us to other decisions in which prohibitions against discrimination on the basis of “marital status” were applied to unmarried cohabitants of the opposite sex. We do not find these cases helpful to the disposition of this cause. The only one of these cases in which an Illinois court addressed this question arose under a Chicago municipal ordinance, not the Act, and the plaintiff in that case was not living with an adult of the opposite sex. (Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527.) In addition, none of the Commission’s decisions cited by plaintiffs specifically addresses the question of whether the Act protects unmarried, cohabiting couples from discrimination. Three cases involve married spouses challenging an employer’s anti-nepotism policies. (In re Ray (Dec. 6, 1988), _HRC Rep. _ (No. 1985CF749); In re Gideon (Nov. 18, 1985), 20 HRC Rep. 25 (No. 1984SN0269); In re Burton (Aug. 29, 1984), 13 HRC Rep. 246 (No. 1981SF0161).) The fourth Commission decision cited by plaintiffs only assumed, without deciding, that the Act protected unmarried cohabitants, due to the fact that the respondent in that case waived consideration of the issue. (In re Niquette (Dec. 6, 1988), _ HRC Rep. _ (No. 1985CH0023).) Consequently, there is no analysis from these cases upon which we might base a decision contrary to the one we have reached.

Moreover, the out-of-State cases plaintiffs cite in support of their interpretation of the Act do not demonstrate, as does the instant case, the need to reconcile that jurisdiction’s civil rights statute with statutorily embodied public policies disfavoring unmarried cohabitation and common-law marriage. (See, e.g., State of Minnesota by Mc Clure v. Sports & Health Club, Inc. (Minn. 1985), 370 N.W.2d 844; State of Minnesota by Johnson v. Porter Farms, Inc. (Minn. App. 1986), 382 N.W.2d 543; State of Minnesota by Cooper v. French (Minn. App. Oct. 31, 1989), No. C2 — 89—1064 (unpublished order).) Plaintiffs refer us to only one case in which this issue was addressed. That case, decided by an administrative law judge for the Minnesota Department of Human Rights, noted that in Minnesota, the criminal statute regarding fornication had fallen into disuse. (State of Minnesota by Cooper v. French (March 15, 1989), No. 1700—3082—2, slip op. at 2.) Conversely, in Illinois, our supreme court has reaffirmed that the criminal prohibition against fornication remains a viable embodiment of this State’s public policy (Jarrett, 78 Ill. 2d at 346) and has recognized Illinois’ public policy against common-law marriage (Hewitt, 77 Ill. 2d at 62-63.) We also note the recent decision in which the supreme court of the State of Alaska determined that the State’s prohibition against discrimination on the basis of “marital status” included unmarried, cohabiting couples of the opposite sex. (Foreman v. Anchorage Equal Rights Comm’n (Alaska 1989), 779 P.2d 1199, 1203.) In reaching its decision, the court placed considerable emphasis on the fact that Alaska’s criminal fornication statute, unlike that of Illinois, had been repealed and was no longer a viable expression of that State’s public policy. Foreman, 779 P.2d at 1202.

None of the cases to which plaintiffs have directed our attention is of assistance in determining whether the Illinois legislature intended to extend the Act’s protections to unmarried, cohabiting couples. These cases are deficient mainly because they do not help us reconcile plaintiffs’ interpretation of the Act, which would protect unmarried cohabitation, with Illinois’ apparently viable public policy against such practices. We believe that our holding today, which is that the Act did not protect plaintiffs’ status as unmarried, cohabiting couples at the time of the alleged discrimination, represents the most appropriate way in which the statutes can be read harmoniously.

Having concluded that plaintiffs are not protected by the Act, we now address the question of whether the trial court abused its discretion by finding that plaintiffs demonstrated a likelihood of success on the merits of their civil rights complaint before the Commission. Clearly, if the Act does not protect unmarried, cohabiting couples from discrimination, then plaintiffs’ situation demonstrates no basis upon which they could succeed before the Commission. Accordingly, we hold that the trial court abused its discretion by making a contrary finding. Since no showing of a likelihood of success on the merits is possible, the trial court erred by granting plaintiffs injunctive relief and should have granted defendants’ motion to dissolve the restraining order. This conclusion obviates the need to consider the other issues raised and argued on appeal.

The order of the circuit court of Du Page County is reversed.

Reversed.

GEIGER, J., concurs.

JUSTICE REINHARD,

specially concurring:

While I concur with much of the majority’s analysis and in the result reached, I do not agree with the reliance placed by the majority on the fornication statute to justify an expression of public policy as it may relate to the Illinois Human Rights Act (Act). Rather, I would rely on the legislative debate at the time of the enactment of the Act in order to ascertain the legislative intent behind the relevant portion of the Act at issue here.

Where, as here, a statute is susceptible of two interpretations, it becomes proper to examine sources other than its language for evidence of legislative intent. {In re Marriage of Logston (1984), 103 Ill. 2d 266, 279.) Debates on the floor of the General Assembly will be examined in this regard to ascertain the legislative intent underlying specific legislation. (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24.) Statements made by members of the General Assembly in legislative debate assist in revealing the legislative intent behind a statute when examined in the context of the debate in its entirety. Morel, 117 Ill. 2d at 24.

During the House debate on Senate Bill 1377, later enacted as the Illinois Human Rights Act (Pub. Act 81 — 1216, eff. July 1, 1980), Representative Harry Leinenweber questioned the House sponsor of the bill, Representative James Reilly, in pertinent part, as follows:

“Leinenweber: ‘All right. The Bill also provides, among other things, that considering someone’s marital status would be an illegal act of discrimination. Is that correct?’
Reilly: ‘Yes.’
Leinenweber: ‘All right, and that...and, as I understand it, marital status is a...is defined as married, single, or divorced. Is that correct?’
Reilly: ‘Yes.’
Leinenweber: ‘Would that include two unmarried adults, female and male, living together, or two unmarried males, or two unmarried females, who are homosexuals, living together?’
Reilly: ‘No, it has nothing to do with that at all.’
Leinenweber: ‘Well, why would that be excluded from the definition of marital status of married, single, or divorced?’
Reilly: ‘Probably why it would be excluded, that is those people are not married, or unmarried, or anything else. It’s defined as the legal status of being married, or not married, or divorced, widowed, whatever. The people you’re talking about simply don’t fall into that category at all.’ ” 81st Ill. Gen. Assem., House Proceedings, June 25, 1979, at 82-83.

I believe that the above-quoted discussion clearly shows that the term “marital status” as set forth in section 1 — 103(Q) and defined in section 1 — 103(J) of the Act does not include the relationship of unmarried persons living together. Consequently, plaintiffs are not protected under the Act, and the judgment of the circuit court should be reversed.


author: JUSTICE REINHARD

text:
    DORIS EKSTROM et al., Plaintiffs-Appellees, v. RICHARD TEMPLE et al., Defendants (Community Hospital et al., Contemnors-Appellants).
    Second District
    No. 2—89—0547
    Opinion filed March 29, 1990.

      Hugh C. Griffin and Harold L. Jacobson, both of Lord, Bissell & Brook, of Chicago (David P. Faulkner, of counsel), for appellants.

      Robert A. Clifford and Keith A. Hebeisen, both of Robert A. Clifford & Associates, of Chicago (Robert R Sheridan, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Contemnors, Community Hospital (hospital) and its attorney, David R Faulkner, appeal from an order of the circuit court of Kane County holding them in contempt and fining each $25 for failure to comply with a prior order compelling production of certain documents. On appeal, contemnors contend that the production order is improper because it requires production of documents which are subject to various privileges against discovery.

Plaintiffs, Doris and Karl Ekstrom, brought this medical malpractice action seeking recovery for injuries allegedly sustained by Mrs. Ekstrom when, following bilateral breast biopsy surgery, she developed toxic shock syndrome necessitating amputation of her legs and numerous fingers. Mr. Ekstrom sought recovery for loss of consortium. Plaintiffs’ first amended complaint names the hospital, several physicians and their employers, and two suture manufacturers as defendants.

On April 28, 1988, plaintiffs filed a request to produce containing 24 numbered paragraphs, seeking various documents from the hospital. Subsequently, the hospital filed a written response objecting on various grounds to the requests in 21 of the 24 paragraphs. Thereafter, in June 1988, plaintiffs filed a motion to compel production in accordance with the request. At a hearing on the motion to compel, the hospital continued to assert its objection that the production request encompassed documents protected under various privileges. In support of its assertion, the hospital tendered three documents to the trial court for in camera inspection. The hospital provided no specific information regarding the content or nature of documents being withheld. At the close of the hearing, the trial court took the matter under advisement, subsequently granting plaintiffs’ motion to compel, and ordering production of the requested materials.

Thereafter, the hospital partially complied with the request but continued to assert that certain portions of the request were improper. On April 19, 1989, plaintiffs filed a motion for a rule to show cause. The hospital, in turn, filed a motion to reconsider the prior order. Following a hearing on these motions, the trial court issued the contempt order against the hospital and its attorney, Faulkner.

On appeal, contemnors take issue with 10 paragraphs in plaintiffs’ request to produce. The contempt order was additionally premised on noncompliance with several other paragraphs which contemnors no longer dispute. The paragraphs which contemnors contend are improper are requests for:

“1. Any and all records regarding infection control at Community Hospital in December, 1985, including but not limited to hospital compliance with JCAH guidelines and standards. These records should include but not be limited to records regarding the operating room, hospital personnel, equipment and suture materials;
* * *
4. Records of any and all cases of staph aureus infection or contamination at Community Hospital;
5. A list of privileges for Drs. Guynn, Temple and Cladis including a list of privileges and the applications for privileges for the years 1980-1985;
* * *
9. Any written guidelines of the Infection Control Committee and the names of all members of the Infection Control Committee for the years 1980-1985;
* * *
12. Any and all investigation reports or other written materials regarding the efforts made to retrospectively verify the sterility of the operating room appliances, instruments and equipment during the surgery of Doris Ekstrom;
13. Any and all statements or interview summaries of people employed by the hospital or doctors obtained in connection with the retrospective investigation of the biopsy surgery of Doris Ekstrom;
* * *
15. Records regarding any and all breast biopsy procedures performed by Dr. Guynn at Community Hospital from 1980 to December, 1985 in which Dr. Temple assisted;
* * *
17. Any and all infection control records from October, 1985, November, 1985, December, 1985 and January 1986.
* * *
20. Any and all documents disclosing why the penrose drain was opened and not used during Mrs. Ekstrom’s bilateral breast procedures.
* * *
23. Any and all documents regarding the December 6, 1985, D & C procedure performed by Dr. Temple, including but not limited to records revealing time of operation, whether or not there was any subsequent infection, identification of the operating room, other personnel involved, etc.”

With respect to paragraph No. 15, the trial court ordered that patients’ names be deleted from the records produced.

Contemnors maintain that each request violates one or more of the following: (1) the privilege established under section 8 — 2101 et seq. of the Code of Civil Procedure (Medical Studies Act) (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2101 et seq.); (2) the physician-patient privilege (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802); and (3) the attorney-client privilege and work product doctrine (107 Ill. 2d R. 201(b)(2)) and the corollary principle protecting communications of an insured to an insurer with an obligation to defend.

We first consider contemnors’ objections based on the Medical Studies Act. That enactment provides, in pertinent part:

“§8 — 2101. Information obtained. All information, interviews, reports, statements, memoranda or other data of *** allied medical societies, *** or committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality of care, or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician’s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.
§8 — 2102. Admissibility as evidence. Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.” Ill. Rev. Stat. 1987, ch. 110, pars. 8 — 2101, 8 — 2102.

Our supreme court has stated:

“The purpose of the Act is to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease. To promote these goals the legislature provided that any materials used in such studies or programs shall be confidential.” Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937.

Contemnors maintain that the paragraphs Nos. 1, 9, 12, 13, 17 and 20 are improper because they reach protected communications regarding infection control. Contemnors cite Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273, in support of their argument. In that case, it was held, in pertinent part, that pathology reports initiated by a hospital’s environmental services committee, a committee primarily concerned with infection control, infection control evaluation and infection control studies, were privileged and not subject to discovery. 167 Ill. App. 3d at 846, 522 N.E.2d at 276.

We agree that documents reflecting the investigations and deliberations of committees which monitor infection control in the course of internal quality control, or for the purpose of reducing morbidity or mortality or improving patient care, are nondiscoverable. Nonetheless, we are not in complete agreement with contemnors as to the application of that principle to the production request in the instant case.

Paragraph No. 1 calls for production of “[a]ny and all records regarding infection control at Community Hospital in December, 1985.” We agree with contemnors that they cannot be compelled pursuant to, this request to produce materials generated by a committee of the type described above. However, paragraph No. 1 is not limited to such committee data but broadly seeks materials pertaining to infection control. Nothing in the record suggests that all documents in the hospital’s control that are encompassed by this request would necessarily be privileged. It is certainly conceivable that the hospital might maintain records pertaining to infection control, which are generated for purposes other than the type of internal quality control and medical study activities that the Medical Studies Act was designed to promote. We see no reason why such materials, if they exist, should not be discoverable.

We note at this point that plaintiffs appear to misunderstand the position contemnors have taken with respect to the scope of the privilege. Plaintiffs contend that contemnors seek to apply the privilege to any document that comes into the hands of a committee specified under the Medical Studies Act, thus allowing a hospital to shield any document by submitting it to such a committee. Contemnors advance no such argument. However, as we explain below, we disagree with the position contemnors have taken.

Contemnors’ argument appears to be that because some privileged materials fall within the scope of the request, it is improper and need not be complied with to any extent, such that even unprivileged materials encompassed by it need not be produced. We find no persuasive authority for such a proposition. Contemnors have cited Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, 547 N.E.2d 1279, in this regard. However, that case involved a trial court order specifically requiring disclosure of privileged materials. While the request here might encompass privileged materials, it is not on its face directed at a privileged area, and it must be complied with to the extent that nonprivileged materials fall within its scope.

Generally, “[o]ne who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. ‘His mere assertion that the matter is confidential and privileged will not suffice.’ ” (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 419-20, 337 N.E.2d 15, quoting Krupp v. Chicago Transit Authority (1956), 8 Ill. 2d 37, 42, 132 N.E.2d 532, 536.) We believe that contemnors should have supported the claim of privilege either by submitting the purportedly privileged materials for in camera inspection or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to particular documents being withheld. Moreover, contemnors should have produced any nonprivileged materials encompassed by the request.

Except for the submission of three documents for in camera inspection, two of which have subsequently been turned over to plaintiffs, contemnors did not take such action but merely objected that privileged materials were within the purview of the request and it was therefore improper. Consequently, the record is for the most part devoid of any information concerning the nature and content of documents being withheld, and the trial court, having no basis for determining the existence of any privilege, properly ordered compliance with the production request.

The same reasoning applies to paragraphs Nos. 12, 13, 17 and 20. These do not on their face invade privileged areas (see Mennes v. South Chicago Community Hospital (1981), 100 Ill. App. 3d 1029, 1032, 427 N.E.2d 952), and contemnors had the burden of establishing the applicability of the privilege and producing all nonprivileged materials. To accept contemnors’ position would put an undue burden on litigants seeking discovery against a hospital. Such litigants will not in all cases be familiar enough with a particular hospital’s internal organization and procedures to recognize when a discovery request will invade a privileged area.

We do note, however, that contemnors submitted minutes of several meetings of the hospital’s infection control committee for in camera inspection to the trial court and to this court. We have reviewed these documents and agree with contemnors that they are within the Medical Studies Act privilege. (See Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 844-45, 522 N.E.2d 273.) The trial court erred in ordering their production, and its order must be reversed in this respect.

Contemnors also maintain that paragraph No. 9, which requests “[a]ny written guidelines of the Infection Control Committee and the names of all members of the Infection Control Committee for the years 1980-1985,” invades the privilege under the Medical Studies Act. The infection control committee’s guidelines clearly fall within the language of the Medical Studies Act, and according them protection is consistent with the Act’s purpose of encouraging candid and voluntary studies. (See Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937.) Thus, because this request is improper on its face, the trial court erred in requiring production of the guidelines. We find no error, however, in compelling disclosure of the identities of the infection control committee. Such information is not generated by the infection control committee but by whatever body of the hospital selects the committee’s members. Moreover, where the proceedings and deliberations of the infection control committee are protected, we believe protecting the identities of the members adds little to the goal of candor.

Contemnors, citing Niven v. Siqueira (1985), 109 Ill. 2d 357, 487 N.E.2d 937, contend that paragraph No. 1 is improper because it requests materials pertaining to compliance with Joint Commission on Accreditation of Hospitals (JCAH) guidelines and standards. In Niven, the plaintiffs obtained a subpoena in the trial court asking for documents in the possession of the JCAH (which was not a party to the action) pertaining to the accreditation of the defendant hospital. Our supreme court held that the JCAH is an “allied medical society” within the meaning of the Medical Studies Act and the materials in its possession pertaining to accreditation were nondiscoverable under the Act. 109 Ill. 2d at 366-68, 487 N.E.2d at 942-43.

The instant case is distinguishable. Here, the materials are sought from the hospital itself, not the JCAH. Also, the documents sought are “records regarding infection control *** including *** hospital compliance with JCAH guidelines and standards.” Plaintiffs do not specifically seek documents pertaining to accreditation, and contemnors have not established that the records requested would necessarily be generated by a committee of the type to which the Medical Studies Act privilege is applicable as part of a medical study. Contemnors have not adequately shown the applicability of the privilege to any particular materials sought by this request, and consequently, the trial court committed no error in ordering production.

Contemnors maintain that paragraph No. 5, which requests “[a] list of privileges for Drs. Guynn, Temple and Cladis and the applications for privileges for the years 1980-1985,” is improper since on its face it calls for material pertaining to the peer review process. Contemnors appear only to take issue with the latter portion of this request seeking production of the doctors’ applications for privileges. They do not object that the list of privileges granted are not discoverable as they represent action taken in consequence of the peer review process, which may be disclosed without compromising the confidentiality of the peer review process itself. See Richter v. Diamond (1985), 108 Ill. 2d 265, 269, 483 N.E.2d 1256; Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, 399, 547 N.E.2d 1279.

Contemnors maintain, however, that applications for hospital privileges are protected under the Act. Contemnors insist that Willing v. St. Joseph Hospital (1988), 176 Ill. App. 3d 737, 531 N.E.2d 824, which reaches the opposite conclusion, was wrongly decided. Willing held that applications for privileges, because they are antecedent to the peer review process, are not protected under the Medical Studies Act. (176 Ill. App. 3d at 743, 531 N.E.2d at 828.) We see no reason to depart from this holding. Contemnors maintain that if such applications are discoverable, the Medical Studies Act’s goal of candor will be impeded. With respect to peer review, the purpose of the Medical Studies Act is to

“ensure the effectiveness of professional self-evaluation, by members of the medical profession, in the interest of improving the quality of health care. The Act is premised on the belief that, absent the statutory peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues.” (Jenkins v. Wu (1984), 102 Ill. 2d 468, 480, 468 N.E.2d 1162.)

The candor sought to be promoted is on the part of the reviewing physicians, not the applicant for privileges, and we do not believe that allowing discovery of applications would impede the review process.

Contemnors also maintain that paragraphs Nos. 12 and 13, which request production of documents pertaining to any retrospective investigation of Mrs. Ekstrom’s biopsy surgery or efforts to verify the sterility of the surgical environment, are improper because they do not exclude materials which might be privileged under the attorney-client privilege and the corollary principle protecting communications between an insured and an insurer with a duty to defend. (See People v. Ryan (1964), 30 Ill. 2d 456, 197 N.E.2d 15.) Our previous discussion in connection with infection control records is applicable here. The requests are not improper on their face, and contemnors have failed to provide sufficient information to determine the applicability of either privilege to any particular documents. Accordingly, the trial court did not err in ordering compliance with these requests.

We next consider contemnors’ contention that paragraphs Nos. 4, 15, 17 and 23 are improper because they call for medical records of persons who are not parties to this action. Section 8 — 802 of the Code of Civil Procedure provides, in pertinent part:

“§8 — 802. Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient, except only *** (2) in actions, civil or criminal, against the physician for malpractice ***.” Ill. Rev. Stat. 1987, ch. 110, par. 8-802.

The exception in this statute pertaining to malpractice actions is applicable only to patients who are parties to the action; records of nonparty patients are privileged. (Parkson v. Central Du Page Hospital (1982), 105 Ill. App. 3d 850, 854-55, 435 N.E.2d 140.) Paragraphs Nos. 4, 15 and 23 call for records of nonparty patients and are therefore improper. While with respect to paragraph No. 15, the trial court ordered that patient names be deleted, this may not sufficiently protect the confidentiality to which the nonparty patients are entitled. (See Parkson, 105 Ill. App. 3d at 855, 435 N.E.2d at 143-44.) Accordingly, the trial court erred in ordering compliance with paragraphs Nos. 4, 15, and 23.

Paragraph No. 17 does not on its face call for individual patient records but calls for infection control records in general. Contemnors have made no showing that producing materials within the purview of this request would entail disclosure of information protected under the physician-patient privilege. However, as the JCAH manual requires accredited hospitals to record the names of infection patients, strict compliance would involve revealing patients’ identities. As the interests of third parties are potentially involved, contemnors should be given the opportunity on remand to assert the physician-patient privilege with respect to any infection control records that identify particular patients.

Finally, we note that plaintiffs have argued in support of the trial court’s order that if contemnors’ construction of the Medical Studies Act is correct, the Act would be unconstitutionally vague. As previously noted, plaintiffs have mischaracterized contemnors’ position, and in view of our construction of the Act, plaintiffs' constitutional challenge is inapplicable.

The judgment of the circuit court is affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

GEIGER and INGLIS, JJ., concur.


author: JUSTICE DUNN

text:
    WEST AMERICAN INSURANCE COMPANY et al., Plaintiffs-Appellants, v. LOUIS N. VAGO, Defendant-Appellee.
    Second District
    No. 2—89—0639
    Opinion filed April 26, 1990.
    Rehearing denied May 23, 1990.

      Michael Resis and Victor J. Piekarski, both of Querrey & Harrow, Ltd., of Chicago, for appellants.
    Patrick M. Kinnally and Joseph C. Loran, both of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, for appellee. -
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, West American Insurance Company (West American) and Indiana Insurance Company (Indiana), appeal from an order of the circuit court of Kane County declaring that they have a duty to defend their insured, defendant Louis Vago, in a certain tort action. On appeal, plaintiffs contend the order was erroneous because exclusionary provisions in the applicable policies precluded coverage under the facts alleged in the tort complaint. We reverse.

In her original tort complaint, the woman who sued Vago alleged that on the evening of April 4, 1987, she was working as a waitress at a country club. We will henceforth refer to this woman as “the waitress.” Defendant, a member of the club, allegedly grabbed her from behind, locked his arms around her waist, and thrust his pelvis against her buttock several times while having an erection. Defendant kept her in his grasp and prevented her from escaping. As a result of these actions, the waitress suffered injuries which included insomnia, post-traumatic stress disorder, and a phobic reaction. Count I of the complaint alleged that defendant committed a battery against the waitress; count II alleged his actions amounted to intentional infliction of emotional distress upon her; count III alleged defendant forcibly restrained her; and count IV sought punitive damages as a result of the alleged attack.

The waitress subsequently filed an amended complaint. The first four counts of the amended complaint were exactly the same as the four counts of the original complaint. She added a fifth count to the amended complaint which incorporated each of the allegations of the previous four counts and also stated as follows:

“[Tjhat defendant was under a duty to act with due care towards the plaintiff, and to refrain from acting or failing to act in such a manner as would foreseeably result in harm to the plaintiff.
That in breach of said duty, *** the defendant acted in such a manner so as to cause his pelvis to make a continuous, offensive touching of plaintiffs body and further acted so as to render plaintiff unable to free herself from said contact.”

At the time of his alleged attack upon the waitress, Vago was covered by a homeowners insurance policy issued by Indiana and one issued by West American. Both policies provided coverage for personal injury or bodily injury to others under certain circumstances. The two policies also stated that the insurance companies would provide a defense by counsel of their choice if a suit was brought against the insured for personal or bodily injuries to which their coverages applied. Although the Indiana policy defined the term “personal injury” so as to include injuries arising from false arrest, malicious prosecution, wilful detention or imprisonment, libel, slander, invasion of privacy, wrongful eviction, and wrongful entry, the West American policy specifically excluded injuries arising from the aforementioned torts from coverage. Both policies contained clauses excluding coverage for bodily injury “which is expected or intended by the insured.”

Plaintiffs filed a complaint in the circuit court of Kane County on August 4, 1988, in which they sought a declaratory judgment that the policies in question provided no coverage to Vago with respect to the allegations raised in the tort action, that they had no duty to defend him against those allegations, and for any other appropriate relief. In his answer, Vago stated that plaintiffs had a duty to defend him because the negligent acts alleged in count V are covered by both policies. Vago subsequently filed a motion for summary judgment, and plaintiffs filed a motion for judgment on the pleadings.

The trial court held a hearing concerning these motions on February 24, 1989. The trial judge stated that plaintiffs were not entitled to declaratory relief because they could conceivably have a duty to indemnify Vago under the allegations of the tort complaint. The trial judge also stated that the question of whether Vago expected or intended the results of his acts was a jury question. Furthermore, the court determined that the Indiana policy was ambiguous because it provided coverage for certain specifically mentioned intentional torts while excluding coverage for bodily injuries expected or intended by the insured, thus creating a possible duty on Indiana’s part to indemnify even if Vago’s conduct was intentional.

The trial court entered an order the day of the hearing stating that plaintiffs’ complaint for declaratory relief was denied for the reasons stated of record, a duty to defend exists as to both plaintiffs, and with respect to plaintiffs’ duty to indemnify defendants, the complaint was dismissed without prejudice pending the outcome of the tort action. Plaintiffs’ motion to reconsider was subsequently denied by the trial court; and plaintiffs filed a timely notice of appeal.

As a preliminary matter, Vago has moved to dismiss this appeal on the basis that the order appealed from was not a final and appealable order because it dismissed the complaint without prejudice with respect to the issue of plaintiffs’ duty to indemnify him. We have ordered this motion to be taken with the case, and we hereby deny it. Ordinarily, the inclusion of the language “without prejudice” in a dismissal order manifests the intention of the trial court that the order not be considered final and appealable. (Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 663.) In Renzulli, however, the trial court’s order stated that plaintiff’s “ ‘second amended complaint be and hereby is dismissed without prejudice’ ” (176 Ill. App. 3d at 662). This is not true in the case at bar, since the trial court only used the language “without prejudice” in its order with reference to plaintiffs’ potential duty to indemnify Vago.

A judgment or order, is final and appealable if it ends the litigation between the parties on the merits of the cause so that, if affirmed, the trial court need only to proceed with execution of the judgment. (Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115.) Although the order does not have to dispose of all issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy, or a definite and separate part thereof. (Kellerman, 119 Ill. 2d at 115.) In the present case, plaintiffs sought a declaratory judgment that they did not have to defend Vago in the tort action because the conduct alleged in the tort complaint was not covered by their policies. The trial court’s order of February 24, 1989, denied the relief sought in plaintiffs’ declaratory judgment complaint and contained a finding that plaintiffs had a duty to defend Vago. Thus, the rights of the parties were disposed of, and the order clearly terminated the litigation by denying the relief sought in the complaint.

The language dismissing the complaint without prejudice with respect to plaintiffs’ duty to indemnify was merely an attempt by the trial judge to make it clear to the parties that the ruling would not preclude plaintiffs from later claiming they had no obligation to indemnify Vago for any damages he might have to pay in relation to the tort action. Because the duty to defend an insured party is broader than the duty to indemnify that party (Motor Vehicle Casu alty Co. v. GSF Energy, Inc. (1989), 193 Ill. App. 3d 1, 8), a finding by the trial court that plaintiffs had no duty to defend Vago would have necessarily meant that they had no duty to indemnify him (see Altaf v. Hanover Square Condominium Association No. 1 (1989), 188 Ill. App. 3d 533, 542). Finding that a duty to defend does exist does not necessarily create an obligation to indemnify, however, and this is the point the trial court was trying to make. In our view, the February 24, 1989, order was a final and appealable order which conclusively terminated the litigation in the trial court in Vago’s favor. We shall therefore proceed to determine the merits of the case.

Plaintiffs contend they do not have a duty to defend Vago against the allegations raised in the tort complaint because both policies contained provisions excluding coverage for personal or bodily injuries expected or intended by the insured. An insurance company’s obligation to provide counsel for its insured depends upon the allegations of the complaint and the applicable provisions of the insurance policy. (Altaf, 188 Ill. App. 3d at 540.) The insurer must defend its insured if the complaint alleges facts which are within or potentially within policy coverage. (Adman Products Co. v. Federal Insurance Co. (1989), 187 Ill. App. 3d 322, 324.) The duty to defend exists even if the complaint alleges several causes of action and only one is within potential policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 194.) In determining whether such a duty exists, the allegations of the complaint must be construed liberally, and any doubts must be resolved in favor of the insured. Altaf, 188 Ill. App. 3d at 541.

In ruling that a duty to defend existed, the trial judge stated that plaintiffs potentially had a duty to indemnify Vago under the allegations of the complaint and that the question of whether the injuries suffered by the waitress were expected or intended by Vago had to be resolved by a jury. In Bay State Insurance Co. v. Wilson (1983), 96 Ill. 2d 487, our supreme court considered an exclusionary provision almost identical to the exclusionary clauses at issue in this case. The clause in Bay State stated in part: “[T]he policy does not apply *** to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” (96 Ill. 2d at 491.) The court held that injuries of such a nature that they should have been reasonably anticipated by the insured are “expected” injuries under such a provision. (Bay State, 96 Ill. 2d at 494.) The court concluded there was no coverage under this exclusionary provision because the insured, who shot another man, was consciously aware that defendant’s injuries were practically certain to be caused by his conduct and must have therefore reasonably anticipated or “expected” the resultant injuries. 96 Ill. 2d at 494.

The policies at issue in this case also exclude coverage for bodily or personal injuries “expected or intended by the insured.” We must therefore determine whether, under the allegations of the complaint, it is conceivable that Vago would not have reasonably anticipated the injuries to the waitress allegedly resulting from his conduct. We conclude that it is not. Quite simply, the tort complaint alleges that Vago deliberately sexually assaulted the waitress. While count V of the tort complaint uses terminology generally associated with negligence, speaking of Vago’s “duty to act with due care” and his alleged “breach of said duty,” that count incorporates the specific factual allegations of the other four counts. According to these allegations, Vago grabbed the waitress from behind, locked his arms around her waist, and thrust his pelvis against her buttock several times. Such a course of conduct is clearly intentional and not merely negligent or accidental. Furthermore, if Vago engaged in such conduct, he would have been consciously aware that he was practically certain to cause emotional injuries to the waitress. Since such injuries should have been reasonably anticipated by Vago, they are “expected” injuries under the Bay State holding and were not covered because of the exclusionary clauses in the two policies. See also Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 620.

The trial court also concluded that the Indiana policy was ambiguous because it provided coverage for personal injuries to others under certain circumstances and included injuries resulting from some intentional torts in the definition of personal injury, while at the same time it excluded coverage for personal injuries expected or intended by the insured. If an insurance policy is ambiguous, it will be construed in favor of the insured. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4.) In determining whether an ambiguity exists, all provisions of the policy should be read together. (Schnackenberg, 88 Ill. 2d at 5.) If the language of the policy can reasonably be given its plain, ordinary, and popular meaning, the provisions should be applied as written, and the parties should be bound to the agreement into which they entered. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495.

We disagree with the trial judge’s determination that the Indiana policy was ambiguous with respect to coverage of injuries resulting from intentional torts. In general, the policy provided coverage for personal injuries resulting from the intentional torts mentioned under the definition of “personal injury,” such as false arrest, wilful detention, libel and slander. Under the exclusionary provision at issue in this case, however, no coverage was provided if the injuries resulting from one of those intentional torts were “expected or intended by the insured.” Since the language of the exclusionary provision is clear and since there is no inconsistency between it and the provision generally providing coverage for personal injuries resulting from certain intentional torts, we will apply the language of the exclusionary clause. Accordingly, because the exclusionary clause is clearly applicable under the facts alleged in the tort complaint, we conclude there is no coverage, and plaintiffs have no duty to defend Vago against the allegations of that complaint. Since there is no duty to defend, there is also no duty on the part of plaintiffs to indemnify Vago. (See Altaf v. Hanover Square Condominium Association No. 1 (1989), 188 Ill. App. 3d 533, 542.) We therefore reverse the trial court and enter a declaratory judgment that plaintiffs have no duty to defend or indemnify Vago with respect to the underlying litigation.

The judgment of the circuit court of Kane County is reversed.

Reversed.

REINHARD and INGLIS, JJ., concur.