author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODERICK JAMES, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—3311
    Opinion filed March 10, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Ca-tharine M. Forest, Francine Taylor-Thirus, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Following a jury trial, defendant was convicted of unlawful use of weapons by a felon and sentenced to four years in the penitentiary. (111. Rev. Stat. 1985, ch. 38, par. 24 — 1.1.) Prior to trial, defendant filed a written motion to suppress evidence on the ground that the police lacked probable cause. That motion was denied. On appeal, defendant contends that (1) the trial court erred in ruling he had failed to sustain his burden on the motion to suppress and (2) the trial court denied him a fair trial when it refused to instruct the jury on the defense of necessity.

Defendant testified at a suppression hearing that on December 19, 1985, he lived in Marietta, Georgia, but was in Chicago visiting his mother for the holidays. At approximately 3:15 p.m., he went to his brother’s home at 908 West 58th Street in Chicago. When no one answered the doorbell, he returned to his 1977 Camaro. Detectives then drove up and told him that the car was stolen and to get out of the car. They searched him and found eight bullets and a derringer pistol in his jacket pocket. The police investigation later showed that his car had not been stolen.

Chicago police detective David Jarmusz testified that he was with Detective Collello conducting surveillance on a building at 908 West 58th Street because drugs were supposedly being sold there. He saw defendant exit this building and cross the street to a car. As the officers drove up to defendant, Jarmusz saw defendant counting what appeared to be a handful of bullets which he held in the palm of his hand as he walked across the street. Defendant stopped, and as the police vehicle approached to within several feet of defendant, the officer could clearly see that the objects in defendant’s hand were bullets. He asked defendant if he had an Illinois State firearm owner’s identification card, and defendant said that he did not. Jarmusz confiscated the bullets and arrested defendant, then searched defendant and found a .38 caliber two-shot derringer in the right-hand pocket of defendant’s coat. The officer said that the incident was not precipitated by a “stolen” car.

The trial court denied defendant’s suppression motion, stating it did not believe defendant had sustained his burden.

Detective David Jarmusz testified at trial concerning his apprehension of defendant and recovery of bullets and the weapon, which he identified in court.

Chicago police officer Sol Collello testified that he was with Officer Jarmusz on December 19, 1985, in an unmarked police car conducting a surveillance of a building at 907 West 58th Street when he saw defendant leave the building holding something in his hand. Col-lello drove toward defendant, stopped and exited the vehicle. Jarmusz then saw that defendant had bullets in his hands and asked defendant if he had a firearm owner’s identification card. Defendant said that he did not and was placed under arrest. Jarmusz conducted a search of defendant, and Officer Collello took a .38 caliber derringer from defendant’s pocket.

It was stipulated that defendant was convicted of involuntary manslaughter on November 1, 1979, and sentenced to probation for four years.

Defendant testified that he came to Chicago from Georgia where he was attending college to visit his mother for Christmas on December 16, 1985. The following day three gang members told him that they were going to revenge the death of their cousin whom defendant killed in 1978. When he told his brother of this threat, his brother gave him the derringer. Later, defendant discovered that the weapon did not work, and he went to the building under surveillance to return it to his brother. When nobody answered the door, he walked back to his car, but a detective told him to get out of his car because he was running a check to see if the car was reported stolen. The officer then searched him, and the derringer and some bullets were recovered from his jacket pocket. He denied that he had anything in his hands including bullets as he walked back to his vehicle. He denied that he told police that he was a member of the Disciple Nation street gang.

Detective David Jarmusz testified in rebuttal that he asked defendant at the police station if he was a gang member. Defendant responded that he was a “D,” meaning a member of the Disciple Nation street gang.

Defendant first argues that the trial court erred in ruling that he failed to sustain his burden on his suppression motion. In a proceeding on a motion to suppress evidence, the burden of proving that the search was unlawful is on defendant, but the burden of proving the validity of the arrest is shifted to the State when defendant shows that he was doing nothing unusual at the time of his arrest and makes a prima facie case that the police lacked probable cause to arrest him. (People v. Stokes (1981), 102 Ill. App. 3d 909, 914, 430 N.E.2d 370.) Defendant argues that it is evident from his testimony that he was not doing anything unusual at the time of his arrest, and he describes the testimony of the police officers that he was counting bullets in his hands on a public street as “totally incredible.” In denying the motion, the court said that it did not believe defendant had sustained the burden, that the officer’s testimony had been impeached by a discrepancy concerning the location of the police car and that defendant had been impeached by a prior conviction. Defendant here made a motion at the end of his case, and the trial court’s remarks, coming at the close of all the evidence presented at the hearing, reflect its view that defendant did not meet his burden of showing that he was doing nothing unusual at the time of his arrest and did not make a prima facie case that the police lacked probable cause to arrest him. Here, the trial court did not accept defendant’s testimony. As defendant now indicates by his argument that the police testimony that he was counting bullets was “totally incredible,” the issue was one of credibility. The trial court’s order is presumed to be correct, and this court may not substitute its judgment regarding the credibility of the witnesses. (People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 442, 391 N.E.2d 142.) We cannot say, given the evidence presented, that the trial court’s finding was manifestly erroneous since defendant’s evidence did not meet his burden unless the trial court believed his testimony, which it clearly did not.

Defendant also contends that the trial court erred in refusing tendered instructions on the affirmative defense of necessity. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 13.) Defendant is entitled to an instruction on the defense theory of necessity if some evidence has been introduced to support the defense. (People v. Unger (1977), 66 Ill. 2d 333, 338, 362 N.E.2d 319.) The court in People v. Unger considered the necessity defense in the context of a prisoner charged with escape who testified that he was subjected to threats of homosexual activity, that on one occasion the threatened abuse was carried out, that he was physically incapable of defending himself, that he was told that he was going to be killed and that he then escaped to save his life. The statute provides:

“Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” (Ill. Rev. Stat. 1985, ch. 38, par. 7-13.)

The accused therefore must be without blame in occasioning or developing the situation and reasonably believe that his conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct. Not every remark is specific enough to rise to the level of a direct threat or be so dire a warning as to reasonably instill the degree of fear of impending harm claimed to necessitate defendant’s actions and require an instruction on necessity. People v. Bivens (1987), 156 Ill. App. 3d 222, 228, 509 N.E.2d 640.

In People v. Perez (1981), 97 Ill. App. 3d 278, 422 N.E.2d 945, defendant argued on appeal that he was not proved guilty beyond a reasonable doubt of unlawful use of weapons because he acted out of necessity in carrying a loaded revolver to defend himself against certain members of a street gang who had threatened his life as part of an ongoing feud. Since defendant stopped to engage in a gunfight, the appellate court found that he had not shown he was without blame in occasioning or developing the situation. Further, the court found defendant could not reasonably have believed that carrying a weapon was necessary to avoid a private injury since the second element of the defense justifies only such otherwise illegal conduct which constitutes the sole reasonable alternative available and said:

“Simple common sense conjoined with the record in this case prohibits the conclusion that the sole reasonable alternative available to defendant was to carry a loaded revolver within the City of Chicago in order to protect himself against threats allegedly made against him. Only the most obvious ‘more reasonable’ alternative, that of avoiding contact with the threatening street gang members by avoiding their ‘territory,’ needs mention here.” 97 Ill. App. 3d at 281.

In People v. Roberts (1985), 136 Ill. App. 3d 863, 483 N.E.2d 1328, a jury instruction on necessity to a charge of unlawful use of weapons was held properly refused despite defendant’s evidence that there was a contract on his life, that he was without blame in developing that situation of a contract on his life and that he reasonably believed it was necessary to carry a gun to avoid his own murder. The court found that defendant was clearly to blame in occasioning the situation of his presence in a tavern where a shooting occurred because he could have chosen not to enter the tavern and there was no evidence he could reasonably have believed it necessary to avoid a greater danger that he carry a gun into the tavern. 136 Ill. App. 3d at 865.

In the case at bar, defendant testified that three gang members threatened to kill him in retaliation for defendant’s earlier killing the gang-members’ relative. Defendant was subsequently prosecuted for this homicide, resulting in his 1979 conviction for involuntary manslaughter. In rejecting the instruction in the present case, the trial court stated that if the instruction were given in this case, it should be given in every case where a defendant lived in a neighborhood where there are gangs, thereby allowing every person to publicly carry a gun. The trial court also found that there was no imminent situation because a threat was made about a 1978 incident which did not give defendant the right to carry a gun. The trial court also found that there were alternatives for defendant, such as leaving the inoperable gun at his mother’s house for his brother to retrieve or calling the police to report the threat.

Defendant did not introduce evidence that he was without blame with respect to the 1978 incident; indeed, he was convicted of a homicide in connection with that incident. While there was no indication that he was to blame for the conduct of the three gang members in threatening him in 1985, we find no evidence that he reasonably believed carrying a gun was necessary. As the court pointed out, other alternatives were available. Defendant testified that he was living in Georgia and came to Chicago only temporarily to visit his family for Christmas. Clearly he had other alternatives available to him, which preclude a reasonable belief on his part that carrying a handgun was necessary to avoid public or private injury greater than the injury which might reasonably result from his own conduct. We conclude that defendant’s evidence, if believed, did not establish some evidence of necessity and that the court properly refused defendant’s request for a necessity defense instruction.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ and COCCIA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    1000 CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. CARRIER CORPORATION, d/b/a Carrier Building Services, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—3570
    Opinion filed March 10, 1989.

      Leahy & Eisenberg, Ltd., of Chicago (Stephen P. Eisenberg, Daniel J. Offenbach, and Paul O. Watkiss, of counsel), for appellant.
    Keck, Mahin & Cate, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, 1000 Condominium Association, appeals from an order granting judgment on the pleadings under the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(e)) in favor of defendant, Carrier Corporation. We address the following two issues: (1) whether the contract between plaintiff and defendant provides that legal action must be filed within one year; and (2) whether the limitations provision in the contract is valid. We affirm.

Plaintiff’s two-count complaint, as amended, alleged the following pertinent facts. Plaintiff and defendant entered into a contract, attached to the complaint as an exhibit, under which defendant’s obligation was to inspect and maintain the refrigeration system in plaintiff’s building. On December 19, 1985, the refrigeration system froze, causing extensive damage to the refrigeration equipment. Plaintiff alleged that defendant negligently maintained the system and that defendant breached an express warranty to perform its contractual obligations in a workmanlike manner. The complaint was filed on January 27, 1987.

Defendant moved to dismiss the complaint pursuant to section 2— 615 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), seeking to enforce paragraph 14 of the contract, which defendant claimed required plaintiff to file a lawsuit within one year from the date of the damage. The provision stated:

“14. BOTH PARTIES agree that any claim arising from the performance or nonperformance of this AGREEMENT whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date such claim arose.”

Plaintiff, in its response brief to defendant’s motion to dismiss, attached two letters as exhibits which plaintiff argued established that it complied with paragraph 14 by providing defendant with notice of the claim within the one-year period. The trial court did not consider the exhibits in its ruling because they were not attached to plaintiff’s complaint and, therefore, not properly before the court. Additionally, plaintiff argued the term “claim” as used in paragraph 14 was ambiguous.

Although defendant filed a motion to dismiss plaintiff’s complaint, the trial court found it was in the nature of a motion for judgment on the pleadings and treated it as such. (See 111. Rev. Stat. 1985, ch. 110, par. 2 — 615(e).) The trial court found that the term “claim” as used in paragraph 14 was not ambiguous and was broad enough to encompass the causes of action presented in plaintiff’s complaint. Pursuant to paragraph 14 of the contract, plaintiff was required to file its complaint on or before December 19, 1986, within one year after the damage occurred. Plaintiff, however, did not file its complaint until more than one year after the damage occurred. Based on its findings, the trial court granted judgment on the pleadings in defendant’s favor. Plaintiff filed a timely notice of appeal.

Opinion

The entry of judgment on the pleadings is proper when the trial court examines the pleadings on file, accepts all well-pled facts and reasonable inferences in favor of the nonmovant, and determines that the issues raised present only questions of law. (Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 501 N.E.2d 315.) The determination of whether contract language is ambiguous is a question of law (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30) and, therefore, a proper issue for judgment on the pleadings. In reviewing an order granting judgment on the pleadings, an appellate court must affirm the order if there were any proper grounds raised in the motion. Village of Lake in the Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 506 N.E.2d 681.

The parties’ disagreement as to the meaning of contract language does not create an ambiguity. (Zurich Midwest, Inc. v. St. Paul Fire & Marine Insurance Co. (1987), 159 Ill. App. 3d 961, 513 N.E.2d 59.) Language is ambiguous when it is capable of being understood in more than one sense. (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663.) When contract language is unambiguous, it should be given its natural and ordinary meaning (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897) without resorting to rules of construction (P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288). A contract should be examined as a whole and each provision should be given meaning and effect. Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30.

On appeal, plaintiff contends the term “claim” is ambiguous and argues a ride of construction should be applied which requires the interpretation of the term be resolved against defendant, who prepared the contract. Plaintiff equates the term with notice and defendant argues the term includes cause of action, as the trial court ruled.

Neither party can cite to, and our research has not disclosed, conclusive authority as to the definition of the term “claim” as used in contractual limitations provisions. However, Black’s Law Dictionary defines “claim” as a cause of action. See Black’s Law Dictionary 224 (5th ed. 1979).

Plaintiff urges this court to focus on two other provisions of the contract which plaintiff argues establish that the term “claim,” as used in the contract, is distinguished from a cause of action. These provisions stated:

“11. WARRANTY: CARRIER guarantees that all labor provided under this AGREEMENT shall be performed in a workmanlike manner. No claim for defective workmanship may be brought upon any cause of action, however, unless CUSTOMER has provided CARRIER with written notice of such defect prior to the termination date of this AGREEMENT.”
13. CARRIER’S MAXIMUM LIABILITY based upon any claim or cause of action (except for personal injury) shall not exceed the yearly contract price of this AGREEMENT.”

The language of paragraph 11 reveals the term “claim” is not the equivalent of “notice” because notice must be given before a claim can be brought. Paragraph 13, on the other hand, uses the phrase “claim or cause of action,” which plaintiff argues establishes that the two terms should be given different meanings. We are not persuaded by plaintiff’s argument.

It is clear that the term “claim” cannot mean “notice” as used in paragraph 11. Paragraph 13 states “claim or cause of action,” but paragraph 14 states only “claim.” Paragraph 14, however, clearly states a claim can be based on contract, negligence, or strict liability, which are causes of action. After reviewing the provisions together, we believe the term “claim” is a broad term which includes cause of action. As a result, paragraph 14 required plaintiff to bring his cause of action within one year from when the damage occurred.

Alternatively, plaintiff argues that the language used in paragraph 14 is insufficient to create a contractual limitations period. Under Illinois law, a contractual provision that limits the time within which to file a lawsuit is enforceable. (Village of Lake in the Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 506 N.E.2d 681.) Plaintiff, however, argues that Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 404 N.E.2d 473, requires that such a provision must use words such as “suit” or “action.” The court in Buchalo did not address the issue of whether specific language must be incorporated in a contract limitations provision, and, therefore, plaintiff’s reliance on that case is misplaced.

Lastly, we note the trial court properly disregarded the letters plaintiff attached as exhibits to its response to defendant’s motion to dismiss. Only pleadings can be considered in determining whether judgment on the pleadings should be granted (Seefeldt v. Millikin National Bank (1985), 137 Ill. App. 3d 841, 485 N.E.2d 30), and in this case the only pleading on file was plaintiff’s complaint, which included only the contract as an exhibit.

We find the contract language was unambiguous and the trial court’s entry of judgment on the pleadings in favor of defendant was proper.

Judgment affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE LINN

text:
    LOYOLA UNIVERSITY MEDICAL CENTER, Plaintiff-Appellee, v. MED CARE HMO, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1459
    Opinion filed March 9, 1989.

      Jenner & Block, of Chicago (Russ M. Strobel, Cathy Houston McNeil, and Mark A. DuPont, of counsel), for appellant.
    Hayt, Hayt & Landau, of Evanston (Raymond E. Clutts, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

This is a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). Loyola University Medical Center (Loyola) brought suit to recover from Med Care HMO the amounts it expended for providing medical services to the child of a Med Care enrollee. Counts I and II of Loyola’s complaint seek compensatory damages for its usual and customary charges for services rendered. Count III asserts a claim for attorney fees and exemplary damages pursuant to section 155 of the Illinois Insurance Code (111. Rev. Stat. 1987, ch. 73, par. 767).

Med Care moved for dismissal of count III on the ground that Loyola had no standing to raise a section 155 claim because only an insured can make such claim. The trial court denied the motion but certified certain issues pertinent to this question. This court has granted review of the certified issues.

Background

Loyola is a not-for-profit, Illinois corporation which owns and operates Foster G. McGaw Hospital. Shonta Hicks’ infant daughter was treated there from birth on October 27, 1986, through February 18, 1987. During oral argument, Loyola’s attorney represented that the baby girl was born prematurely and, accordingly, transferred to McGaw because of that hospital’s neonatal facilities, which the health care providers in Med Care’s pool did not have available.

During the course of Baby Girl Hicks’ admission, Shonta Hicks executed a form entitled “Admitting Authorization Record.” One of the provisions of the form states as follows:

“Payment Guarantee/Assignment Of Insurance Benefits For and in consideration of hospital care to the above patient, I/we agree to pay the established rates of Foster G. McGaw Hospital and its physicians for all services, facilities, and supplies rendered hereunder.”
“I hereby authorize insurance payments) to be made directly to the physician or physician of the Loyola Medical Center involved in the patient’s care and to the hospital for services rendered, but the hospital payment shall not exceed the hospital’s regular charge for this period of hospitalization. I understand that I am financially responsible for all hospital and physician charges not covered by my insurance plan.”

According to Loyola’s complaint, Med Care confirmed Baby Girl Hicks’ eligibility for coverage and quoted the benefits to which the infant was entitled under Med Care’s subscription certificate. The hospital treated the premature infant and participated in certain quality review procedures required by law.

Loyola produced monthly interim billings, which it sent to Med Care, and produced a final summation of itemized charges of $121,486.55. Med Care paid only $27,384.53. Med Care refused to pay the balance, which is the subject of counts I and II of the complaint. Count I alleges breach of contract based on the assignment and count II alleges detrimental reliance/estoppel. Count III seeks statutory damages for Med Care’s allegedly vexatious and unreasonable refusal to reimburse Loyola for its services.

Med Care moved to dismiss count III on the ground that Loyola lacked standing as a noninsured and that, to the extent Loyola claimed to be an assignee of Hicks’, the assignment was void because Med Care’s general policy required advance written approval before policy benefits could be assigned.

In denying the motion to dismiss, the trial court certified these questions for review:

“a. Whether the language contained in LOYOLA’s ‘Payment Guarantee/Assignment of Insurance Benefits’ is sufficiently unambiguous, as a matter of law, to constitute a valid assignment of all contractual rights to reimbursement for those services rendered by LOYOLA UNIVERSITY MEDICAL CENTER to Baby Girl Hicks during the entire course of Baby Girl Hicks’ admission, absent any other contradictory evidence regarding Shonta Hicks’ intent to assign benefits.
b. Whether Shonta Hicks’ execution of the assignment of benefits prior to the point where Loyola had completed its course of treatment constitutes the transfer of a right to payment when a loss under the policy is imminently to be incurred, is not prevented by MED CARE HMO’s general policy provision prohibiting an insured’s assignment of benefits before a loss has occurred.
c. Whether LOYOLA’s status as an assignee of Shonta Hicks’ subscription certificate benefits entitles it to assert a claim against MED CARE HMO, pursuant to III. Rev. Stat., (1985) eh. 73, §767, for the damages sustained from MED CARE’s alleged vexatious and unreasonable failure to settle LOYOLA’s claim for services rendered to Baby Girl Hicks.”

Opinion

Loyola asserts its status as an assignee of all the rights and benefits to which Med Care’s enrollee, Shonta Hicks, was entitled. According to Loyola, the assignment gives it standing to assert a claim for damages stemming from Med Care’s alleged vexatious and unreasonable denial of the balance of the claim under the insurance policy.

Med Care maintains that Hicks’ assignment of benefits under the insurance policy was void and that in any event only an insured can assert a damages claim under section 155 of the Insurance Code.

Initially, we note that Loyola’s claim for compensatory damages in counts I and II, as well as exemplary damages in count III, depends on the validity of the assignment.

I

Regarding the first certified question set out above, we note that the crux of this initial issue is whether the language contained in Loyola’s admitting form is “sufficiently unambiguous *** to constitute a valid assignment of all contractual rights to reimbursement for those services rendered by [Loyola] *** during the entire course of Baby Girl Hicks’ admission.”

By its terms the excerpted provision from the admitting form contemplates assignment of benefits, as indicated in the boldface heading “Payment Guarantee/Assignment of Benefits.” The first paragraph under the heading concerns the insured’s guarantee of payments in exchange for and consideration of Loyola’s medical services. The second paragraph authorizes Shonta Hicks’ insurance provider (Med Care) to pay Loyola directly for those services. It further stipulates that the insurance payments to Loyola shall not exceed its regular charges and that Hicks would remain responsible for all charges not covered by her insurance plan.

We find the provision to be an unqualified intention to transfer to Loyola all of Shonta Hicks’ rights to reimbursement under the policy for covered services. Absent evidence tending to show a contradictory intention, the words appear sufficient to operate as a full assignment of the right to reimbursement. (See Dr. Charles W. Smith III, Ltd. v. Connecticut General Life Insurance Co. (1984), 122 Ill. App. 3d 725, 462 N.E.2d 604 (words which reflect an intent to transfer an actionable right to reimbursement for valuable consideration are sufficient to create an assignment); Robert S. Pinzur, Ltd. v. The Hartford (1987), 158 Ill. App. 3d 871, 511 N.E.2d 1281 (no valid assignment created where no evidence of parties’ intent to create assignment existed beyond direct payment authorization, which did not evidence patient’s receipt of consideration and did not provide that patient would remain liable for amounts not covered); McHenry Hospital v. Metropolitan Life Insurance Co. (N.D. Ill. 1983), 578 F. Supp. 122.) In McHenry, the court noted that “mechanisms for direct payment to providers of health care should be encouraged and facilitated in the interest of insureds, the providers and the insurance industry as well. Treating these authorization forms as assignments would appear to accomplish this result and to be consistent with the Illinois law of assignments.” 578 F. Supp. at 124-25.

Med Care does not raise any disputed factual issue regarding the intent of Hicks or Loyola pursuant to this agreement but asks us to find it invalid as a matter of law. In support, Med Care cites two cases from other jurisdictions in which courts held that a direct payment authorization did not constitute an assignment. (Presbyterian Hospital v. National Life & Accident Insurance Co. (Tex. Civ. App. 1972), 480 S.W.2d 497; Piedmont Southern Life Insurance Co. v. Gunter (1963), 108 Ga. App. 236, 132 S.E.2d 527.) In light of the Illinois authorities cited above, however, we need not address the law of other jurisdictions.

The record contains no evidence that Hicks did not intend to assign her rights to payment from Med Care. The agreement between her and Loyola was supported by consideration. No contract element appears to be lacking. We conclude that the language of the “payments guarantee/assignment of benefits” is sufficiently unambiguous as to constitute a valid assignment under these circumstances, as a matter of law.

II

Med Care nevertheless argues that any assignment of benefits was prohibited without its prior written consent. For this it cites a provision in the “Med Care Subscription Certificate for Medicaid Recipients of the State of Illinois.” This document is subtitled “A Group Service Agreement Between the Illinois Department of Public Aid and Med Care Health Maintenance Organization.” The language in question provides: “No interest in the Group Service Agreement, in this Certificate, or in any Identification Card issued pursuant thereto is assignable without prior written consent of MED CARE.” The paragraph goes on to state that the identification card is not transferable and that only a beneficiary is entitled to any benefit under the certificate.

This nonassignability clause presumably is designed to prevent the transfer of benefits that are personal to the insured, coverage for “loss.” If a beneficiary can assign his policy to a third party before a loss is incurred he may well alter the risk that the insurer has underwritten.

In this case, however, Loyola argues that the nonassignability language does not bar assignments of the right to payment, once the loss is incurred. The medical condition or injury necessitating treatment is the “loss,” which is sustained by the insured and no other person. The right to payment or reimbursement for that loss then can be transferred to other parties because it is a chose in action.

The trial court certified the issue raised under this argument as “[wjhether Shonta Hicks’ execution of an assignment of benefits prior to the point where LOYOLA had completed its course of treatment constitutes the transfer of a right to payment when a loss under the policy is imminently to be incurred, is not prevented by MED CARE HMO’s general policy provision prohibiting an insured’s assignment of benefits before a loss has occurred.”

While this issue might have been stated more clearly, the essential point is whether the assignment was effective when signed (before treatment) because of the continuing nature of the services, or whether it is an ineffective attempt to assign benefits for future losses. Both Loyola and the trial court relied on Lain v. Metropolitan Life Insurance Co. (1944), 388 Ill. 576, 58 N.E.2d 587. There the court distinguished between the situation in which the personal character of the insured is in issue (before loss, or in the coverage stage) and those in which the right to be assigned is simply the right to payment of the amount due, a chose in action. The court stated, “The general rule, supported by a great wealth of authority, is that general stipulations in policies, prohibiting assignment thereof except with the insurer’s consent, or upon giving some notice, or like conditions, have universally been held to apply only to assignments before loss, and, accordingly, not to prevent an assignment, after loss, of the claim or interest of the insured in the insurance money then due in respect to the loss.” 388 Ill. at 578, 58 N.E.2d at 588.

The critical distinction in assignability, as the Illinois Supreme Court stated in Ginsburg v. Bull Dog Auto Fire Insurance Association (1928), 328 Ill. 571, 573, is this: “After the contract has been fully executed and nothing remains to be done except to pay the money a different rule applies [regarding assignability]. The element of the personal character, credit and substance of the party with whom the contract is made is no longer material, because the contract has been completed and all that remains to be done is to pay the amount due. The claim becomes a chose in action, which is assignable and enforcible under [statute].”

In Lain the court further noted that prohibitions on free assigna-bility of such choses in action may violate public policy. Lain, 388 111. at 580.

The trial court characterized Loyola’s continuing course of treatment as ongoing performance of the consideration it gave for Hicks’ execution of an assignment. The transaction was thus referred to as a “continuously speaking” assignment.

We agree with the trial court’s construction. What Hicks assigned was her present conditional right to the insurance proceeds. (Restatement (Second) of Contracts §321, comment a (1981).) A valid assignment of a conditional right is enforceable in equity. (Robert S. Pinzur, Ltd. v. The Hartford (1987), 158 Ill. App. 3d 871, 877, 511 N.E.2d 1281.) Hence, the assignment attaches to each installment of money “to become due” under an existing contract as it becomes due and payable to the assignor. See S. Williston, Contracts §412, at 34-35 (3d ed. 1960) (and cases cited therein).

Med Care does not explain how Hicks’ assignment of her right to reimbursement for medical fees altered the risk that it underwrote when Hicks was accepted into the HMO program. Moreover, Med Care admits to paying a portion of Loyola’s fees. Loyola alleges that Med Care knew that it was providing care for Hicks’ infant, participated in or reviewed the need for Hicks to receive treatment at Loyola, and otherwise approved of the assignment by not objecting. Med Care did not put Loyola on notice that Med Care considered the services as noncompensable under its certificate on the grounds that it did not give prior written consent. In fact, Med Care’s partial payment and other acts may be considered a waiver of strict compliance with the prior written approval clause. Written provisions are always subject to consensual modification, which may be inferred by the parties’ conduct as well as words. In any event, we cannot say that the provision in question bars the assignment as a matter of law.

Ill

The final issue under review is whether Loyola’s “status as an as-signee of Shonta Hicks’ subscription certificate benefits entitles it to assert a claim [for damages from] Med Care’s alleged vexatious and unreasonable failure to settle Loyola’s claim for services rendered to Baby Girl Hicks.”

This issue embraces two questions. First, must the assignment expressly refer to the statutory claim under section 155 of the Insurance Code to cause a valid transfer of this claim? Second, can Loyola validly assert its own claim for vexatious delay against Hicks’ insurer?

A

Med Care argues that the assignment language was not specific enough to transfer a claim under section 155 and that in any event there was no section 155 claim to transfer at the time of the assignment. Therefore, since Hicks had no section 155 claim to assign and Loyola’s form did not refer to any such claim, Loyola is not entitled to make the claim as assignee.

It is true that the subject of an assignment must be sufficiently identified. (E.g., Heritage Bank v. Recreational Retail Builders, Inc. (1981), 97 Ill. App. 3d 748, 753, 423 N.E.2d 573.) Moreover, an assignor cannot assign a claim that she no longer possesses. (See Litwin v. Timbercrest Estates, Inc. (1976), 37 Ill. App. 3d 956, 958-59, 347 N.E.2d 378, 380.) Nevertheless, the present transfer of rights that are not yet due or may never become due is effective if it appears that there is an existing contract out of which the debt may arise. S. Williston, Contracts §413, at 55 (3d ed. 1960).

Moreover, the courts considering the specific issue of whether a section 155 claim is transferable under a general assignment of benefits have answered in the affirmative. In McHenry Hospital v. Metropolitan Life Insurance Co. (N.D. Ill. 1983), 578 F. Supp. 122, 126, the court noted that if the hospital in that case had received an assignment of the insured’s contract rights, “then the Hospital has acquired the full bundle of contract and incidental rights possessed by the insured. The identity of interest between the Hospital and the insured and the obvious efficiency and humaneness of a direct payment mechanism, make clear that the Hospital, if it is an assignee of the insured’s right to payment, should be permitted the full panoply of statutory and common law recourse to effectuate the important policy that legitimate health insurance claims be settled expeditiously and fairly.” In Aabye v. Security-Connecticut Life Insurance Co. (N.D. Ill. 1984), 586 F. Supp. 5, the court held that a policy assignee had standing to sue an insurer under section 155.

We are aware of the Illinois decisions holding that a section 155 claim cannot be brought by third parties. (See Stamps v. Caldwell (1971), 133 Ill. App. 2d 524, 528, 273 N.E.2d 489; Scroggins v. Allstate Insurance Co. (1979), 74 Ill. App. 3d 1027, 393 N.E.2d 718; Robertson v. Travelers Insurance Co. (1981), 100 Ill. App. 3d 845, 849, 427 N.E.2d 302.) In Yassin v. Certified Grocers of Illinois, Inc. (1988), 178 Ill. App. 3d 498, the court cited the above cases as holding that the vexatious delay provision is restricted to actions brought by the insured, not third parties. However, the court also distinguished the case of Aabye v. Security-Connecticut Life Insurance Co. (N.D. Ill. 1984), 586 F. Supp. 5 (in which the court allowed a policy-assignee to sue under this section), on the grounds that assignee status is not the same as third-party status.

We believe that an assignee of the insured succeeds to the same position as the insured and is not a true third party. In Scrog-gins, Stamps, and Robertson, the section 155 claimants were neither the insureds nor assignees of the insureds. Scroggins explained that creditors of insureds were not allowed to assert the insured’s right of action directly against the insurer because that action was for the protection of the insured, not third parties. For the same reason, creditors of insureds were not to be considered third-party beneficiaries of the insurance policy. Nevertheless, Scroggins stated that where the insured’s claim for wrongful failure to settle is assignable, a third party may acquire and prosecute the claim by assignment. This reasoning is consistent with that of Yassin, McHenry, and Aahye.

Based on our analysis of the pertinent law, we hold that Loyola, as assignee of Hicks, had standing to bring a claim under section 155.

B

However, Loyola has conceded that its claim is not that of Med Care’s unreasonable and vexatious delay regarding payments to Shonta Hicks. Instead, Loyola’s claim is for unreasonable and vexatious delay as to Loyola.

We do not find it contradictory that Loyola, as assignee of Shonta Hicks, is nevertheless asserting its “own” claim for section 155 damages. By their nature, such claims cannot arise unless and until the insurer has refused to make payments. Since Hicks had assigned her rights to these payments to Loyola, Loyola became the party owning the incidental right to any exemplary damages accruing if Med Care vexatiously refused to pay. In that limited sense, Loyola became the “insured.” Because the insured and her assignee in this instance are interchangeable for purposes of the duty to pay, the insurer cannot circumvent section 155 by calling the assignee a “third party.”

IV

The final argument Med Care makes to defeat Loyola’s section 155 claim is much broader. Med Care suggested at oral argument that allowing Loyola and other assignees to maintain section 155 claims would amount to the creation of a market for these claims. This in turn would result in increased litigation and attendant costs that might put HMOs out of business.

This latter argument was not raised in Med Care’s briefs and is therefore waived. Whether or not our holding may create a “market” for assignees of HMO enrollees with section 155 claims is a matter of sheer speculation. The legislature has made section 155 applicable to HMOs (Ill. Rev. Stat. 1987, ch. HV-k, par. 1409A), and we find no reason to accord them a special exclusion that other insurers would not enjoy. Moreover, the statute is aimed at penalizing unreasonable and vexatious delay, not delay in payment that results from an honest difference of opinion or reasonable reading of the pertinent law. (Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 999, 493 N.E.2d 638.) In the pending case, recognizing that Loyola has standing to assert a claim is far removed from the ultimate finding that Loyola has proved it. The fact finder may determine that there was a bona fide dispute as to the validity of the assignment and Loyola’s legal capacity to bring the section 155 claim.

To the extent that our holding may allow others in Loyola’s position to assert a section 155 claim, Med Care and other insurers are now on notice that a medical services provider who takes a valid assignment of benefits from the insured has standing to maintain a claim for damages if the insurer is found liable for unreasonable and vexatious delay in remitting the payment due to the assignee.

We conclude that Loyola has standing, by virtue of its assignment of benefits from Shonta Hicks, to assert its claim for damages pursuant to section 155 of the Insurance Code.

For the foregoing reasons, we affirm the trial court’s denial of Med Care’s motion to dismiss count III of Loyola’s complaint. We also affirm the trial court’s ruling on each of the certified issues and remand this cause for further proceedings.

Affirmed and remanded.

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

       1Generally, a beneficiary/enrollee of an HMO (health maintenance organization) must obtain medical services from one of a group of physicians and hospitals who are under contract with the HMO. The HMO pays the member-provider for the medical services rendered and the provider has no right of recourse against the enrollee. (See Ill. Rev. Stat. 1987, ch. IIIV2, par. 1407.01.) If the enrollee seeks medical treatment outside of the plan, as in an emergency in which no HMO provider is available, the HMO is generally bound to pay that nonmember hospital or physician, subject to conditions contained in the subscription certificate. By statute, HMOs are required to cover newborns of enrollees from birth and “such coverage shall include illness *** and premature birth.” Ill. Rev. Stat. 1987, ch. IIIV2, par. 1409.1(2).

      “Loss” is not defined in Med Care’s certificate. Although Med Care argues that Hicks’ loss is the actual rendering of medical services, it cites no authority for that position. In ordinary terms, an insured’s loss would seem to be his or her injury, whether to himself, property, or business expectations. Under a fire policy, for example, an insured’s loss may be the damage to the burned building, contents, and interruption of business. The loss would not equate with the actual reconstruction of the building, as Med Care’s position would seem to require.

        Stamps apparently originated the rule that section 155 of the Insurance Code does not apply to third-party claims, although the statute does not state this and the one case the Stamps court cited was resolved on the grounds that the delay involved was neither unreasonable nor vexatious.

        Scroggins was not decided under section 155. Instead, the injured plaintiff’s claim against the defendant’s insurer was one sounding in bad-faith refusal to settle the insurance claim. Scroggins held that any such cause of action for bad-faith refusal to settle belonged exclusively to the insured, not third parties. Hence, the insurer had no duty to the injured party.

        Robertson initially noted that if section 155 were deemed to be an exclusive remedy for exemplary damages against insurers, it was a remedy belonging to insureds only (citing Stamps and Scroggins). Thus, section 155 did not bar third parties from suing insurance companies under an outrage theory based on bad-faith refusal to settle a claim. Robertson cannot be squared with Scroggins, which held that the injured plaintiff could not directly sue the defendant’s insurance company under the bad-faith refusal to settle the insurance claim theory.
      None of these cases bars Loyola as assignee from asserting a section 155 claim.


author: JUSTICE LEWIS JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KEVIN CLAY GARRETT, Defendant-Appellee.
    Fifth District
    No. 5-87-0799
    Opinion filed February 23, 1989.
    Rehearing denied March 28, 1989.

      HARRISON, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Terence M. Madsen and Marcia L. Friedl, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Thomas E. Hildebrand, Jr., of Granite City, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Kevin Clay Garrett, was arrested on March 9, 1987, for offenses arising from a shoot-out with police that same evening. He was subsequently charged by information on March 10, 1987, with two counts of attempted murder and one count of unlawful use of a firearm by a felon, and bond was set at $400,000. On March 30, 1987, defense counsel entered his appearance of record, Garrett’s plea of not guilty and a demand for a speedy jury trial. On April 27, an amended information was filed adding one count of defacing identification marks on a firearm. On May 27, bond was reduced to $75,000 pursuant to Garrett’s motion, and he was subsequently released on May 29, after posting bond.

The case was set for trial on June 8, 1987, and, on that date, Garrett successfully sought a continuance until July 1987. On August 5, 1987, the State sought and received a continuance to September 8, 1987. On October 5, 1987, the State again moved to continue the case because the only assistant Attorney General who had investigated, had interviewed the witnesses, and had prepared the case was conducting a trial in another matter. The motion was granted and trial was set for November 16,1987.

On October 13, 1987, Garrett moved to dismiss on grounds that he had not been brought to trial within 160 days of his demand for a speedy trial, as required by section 103 — 5(b) of the Illinois Code of Criminal Procedure of 1963 (111. Rev. Stat. 1987, ch. 38, par. 103— 5(b)). This motion was argued on November 9, 1987, and the court entered an order on November 18, 1987, finding that defendant’s in-custody demand for a speedy trial was effective to trigger the running of the 160-day time period in which to bring defendant to trial, and that after subtracting the delay attributable to Garrett, more than 160 days had elapsed from Garrett’s speedy trial demand. The trial court dismissed the case and this appeal followed.

At issue is whether, under the facts of this case, a speedy trial demand made while in custody triggered the 160-day time period. Section 103 — 5 of the Illinois Code of Criminal Procedure of 1963 provides:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, ***.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless the delay is occasioned by the defendant ***.” Ill. Rev. Stat. 1987, ch. 38, pars. 103 — 5(a), (b).

The cases involving the issue presented here are limited in number; therefore, we will briefly discuss each of them. In People v. Byrn (1971), 3 Ill. App. 3d 362, 274 N.E.2d 186, the defendant made an oral demand for a speedy trial while in custody, but the trial court noted in the record only that he had made a demand for a jury trial. Defendant was subsequently released on bail, over two months after his demand for speedy trial was made. Several months later he moved to dismiss the charges against him as he had not been brought to trial within 160 days as required by section 103 — 5(b). The motion was granted but this court reversed the trial court’s ruling, holding that section 103 — 5(b) applies only to defendants who are “on bail” and that the defendant must be “on bail” when his speedy trial demand is made.

In People v. Arch (1975), 33 Ill. App. 331, 337 N.E.2d 221, the defendant made a written demand for a speedy trial while in custody and was released on bail the following day. Distinguishing Byrn, the court held that as the demand for a speedy trial was a written one and therefore sufficient to put the State on notice that defendant was demanding a speedy trial, it would have been unduly repetitious to require defendant to renew that demand when released on bail the following day. The court, persuaded by the proximity in time of the defendant’s demand for speedy trial to his release on bail, considered the defendant’s demand to be a continuing one and held it to be sufficient to trigger the 160-day time period.

In People v. Adams (1982), 106 Ill. App. 3d 467, 435 N.E.2d 1203, the defendant made a written demand for a speedy trial while in custody and was subsequently released on bail several days later. Citing Byrn, the court held that because defendant’s demand was made while still in custody and not renewed either when filing a motion for bail or after being released on bail, the running of the 160-day rule was not triggered.

In People v. Gathings (1984), 128 Ill. App. 3d 475, 470 N.E.2d 1260, the court found that the defendants were in fact tried within the 160-day time period, but went on to state that because their speedy trial demand was made contemporaneously with their bond motion it was effective to trigger the 160-day term. Although the appellate court discussed the validity of defendants’ in-custody demand for a speedy trial, it was not dispositive of the issue in Gathings. The appellate court did not dismiss the charges against the defendants, as it found that the defendants had filed a motion for continuance which tolled the running of the statutory period, and whether the State had 120 days or 160 days in which to prosecute defendants was irrelevant.

In the present case, defendant relies on our recent decision in People v. Frame (1988), 165 Ill. App. 3d 585, 519 N.E.2d 482, for the proposition that a demand for a speedy trial made while in custody is effective to commence the running of the 160-day period. The defendant in Frame specifically stated in his speedy trial demand that it was to be a continuing one if he became “on bail.” Defendant cites, in support of his argument, the language in Frame where we stated that

“[a] defendant on bail must be tried within 160 days from the date on which he demands trial. (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5(b).) We do not interpret this section to mean that defendant must be on bail when he makes his demand.” Frame, 165 Ill. App. 3d at 590, 519 N.E.2d at 486.

In addition to the foregoing cases, we note that it is well established that section 103 — 5 should be liberally construed so as to give effect to the constitutional right to a speedy trial; however, each case must be decided on its own facts. (People v. Brown (1982), 92 Ill. 2d 248, 442 N.E.2d 136; People v. Pearson (1981), 88 Ill. 2d 210, 430 N.E.2d 990.) Therefore, while the foregoing cited cases may be considered, it is the facts which are important in our resolution of the issue presented in this case.

The defendant’s purported demand for speedy trial made on March 30, 1987, approximately two months prior to his release on bond, was entitled “Entry of Appearance, Plea of Not Guilty and Demand For Speedy Jury Trial.” This document was clearly a form designed to accommodate any criminal defendant with the only uncompleted portion of the form being the defendant’s name in the caption of the case. The document stated, in its entirety, as follows:

“Now comes Brandt, Slate & Hildebrand, and enter their appearance as attorneys of record on behalf of the Defendant, enter a plea of Not Guilty on behalf of said Defendant, and demand a speedy jury trial.”

We find that the language of defendant’s demand was insufficient to place the State on notice that he desired a speedy trial once he was released on bail. Our determination is based on the fact that the language of defendant’s document cannot be considered as a continuing demand, unlike Frame; that there was almost two months lapse in time from the date of the demand and defendant’s release on bail, unlike Arch; and that defendant’s purported speedy trial demand was not made with any motion for bail bond, unlike Frame and Gathings, and was coupled with an entry of appearance and the entry of a plea of not guilty, thereby unsupportive of the inference that the demand was only made towards the view that defendant was anticipating an imminent release on bail and that he desired a speedy trial once he was released on bail.

Regarding our comments made in Frame upon which defendant relies, we note that those comments were made within the context of our discussion of the differences between the Byrn and Adams line of authority and the Arch and Gathings line of authority, and were not dispositive of the issue in Frame. Like Arch, the demand in Frame was a continuing one and is therefore distinguishable from Byrn. Defendant’s demand was not a continuing demand and cannot be distinguished from Byrn.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed and remanded.

Reversed and remanded.

WELCH, P.J., concurs.

JUSTICE HARRISON,

dissenting:

Section 103 — 5(b) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)) provides in pertinent part that every person on bail must be tried within 160 days from the date defendant demands trial. For the reasons set forth in People v. Frame (1988), 165 Ill. App. 3d 585, 589, 519 N.E.2d 482, 486, this statute does not require that defendant be on bail when he makes his demand. Therefore, under the facts in this case, the circuit court of Madison County was correct in dismissing this case as more than 160 days had elapsed after defendant made a speedy trial demand. I would affirm.


author: JUSTICE RARICK

text:
      In re ESTATE OF LILLIAN A. SCHAUB, Deceased.
    Fifth District
    No. 5—87—0604
    Opinion filed February 28, 1989.

      William R. Pearcy, of Green, Cross & Pearcy, of Nashville, for appellant.
    William C. DeMoss and Don Johnson, both of Hohlt, House, DeMoss & Johnson, of Pinekneyville, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

Respondent, Boy Scout Troop No. 47, Pinekneyville, Illinois (Troop 47), appeals the judgment of the circuit court of Perry County instructing petitioners, the executors and trustees (trustees) under the last will of Lillian A. Schaub, deceased, to distribute three one-hundredths of the residuary estate to Egyptian Council, Boy Scouts of America (Egyptian Council), to be held in trust for the exclusive benefit of Boy Scouts in Pinekneyville, Illinois. We affirm.

Lillian A. Schaub died December 26, 1985, in Pinekneyville, Illinois. Her last will and testament was filed January 2, 1986, and subsequently admitted to probate. On May 6, 1987, the trustees filed a petition for instructions to construe certain provisions of the will. Included among these provisions were paragraphs “Fifth” and “Sixth,” which provided in part that the trustees were to receive for the use and benefit of the Boy Scouts in Pinekneyville, Illinois, three one-hundredths of the decedent’s residuary estate and further: “[t]o distribute the funds, together with the income thereon, held in trust for the *** Boy Scouts in Pinekneyville, Illinois, to such persons or in such other manner as they may determine for the purpose of insuring that all of said funds shall be used for scouting in Pinekneyville and for the members of Boy Scout *** Troops in Pinekneyville.” Troop 47 and Egyptian Council both responded to the petition requesting distribution be made to their respective groups. The trial court determined the charitable intent of the deceased would best be carried out by turning over the funds to Egyptian Council and therefore ordered the trustees to distribute the three one-hundredths of the residuary estate (approximately $14,000) designated for the Boy Scouts in Pinckney-ville, Illinois, to Egyptian Council.

Troop 47 argues on appeal that in accordance with the language of the will distribution of the designated residuary estate should be made to it as the only local Boy Scout troop in Pinekneyville, Illinois, as opposed to Egyptian Council, which encompasses a larger geographic area and other communities. Troop 47 believes the intent of Lillian A. Schaub was to benefit and promote scouting in Pinckney-ville. Therefore, according to Troop 47, distributing the funds to it would best carry out the decedent’s design and purpose. We disagree.

The record reveals that gifts received by Egyptian Council designated to benefit a certain community are restricted solely to use for and by that community. Distributing the funds to Egyptian Council therefore undoubtedly would equally fulfill the provisions of Lillian A. Schaub’s will. More importantly, however, the record also reveals that Egyptian Council is a not-for-profit corporation in good standing, chartered directly by the National Council, Boy Scouts of America, to administer local scouting programs. Local troops, on the other hand, are chartered only through sponsoring organizations, such as churches. When a local troop disbands, any personal property belongs to the sponsoring organization. Troop 47 has already in the recent past (on December 31, 1986) dropped its charter and rechartered on March 1, 1987, with only six boys as members. If the bequest at issue here were given directly to Troop 47 and if Troop 47 were to disband again in the near future, local scouting in Pinckneyville would receive little, if any, benefit. Moreover, turning over the funds directly to Troop 47 ignores the existence of Pinckneyville Cub Scout Pack 47. Cub Scouts are also Boy Scouts who, because of their age, happen to be participating in the Cub program of Boy Scouts of America. Cub Scout Pack 47 currently consists of 29 boys. Surely Cub Scout Pack 47 as Boy Scouts is equally deserving of Lillian A. Schaub’s bequest. Distributing the funds to Egyptian Council with appropriate restrictions therefore will not only, as the trial court noted, benefit Pinck-neyville scouting in general over a long period of time but also provide a continuity in the management of funds for the use of all scouts in Pinckneyville.

Troop 47 argues, however, the language of Lillian A. Schaub’s will is quite plain and clear; consequently, resorting to rules of construction to determine the testator’s intent is unnecessary. While this proposition of law is true (see In re Estate of Offerman (1987), 153 Ill. App. 3d 299, 302-03, 505 N.E.2d 413, 416; Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129, 145, 482 N.E.2d 1085, 1097-98), we disagree with Troop 47’s characterization of the language. We believe, as did the trial court, that the term “Boy Scouts” is generic in nature and thus open to interpretation. Nowhere in her will did Lillian A. Schaub refer to a specific local branch of the Boy Scouts, as occurred with other organizations such as the American Legion or the Salvation Army. The only limit was geographic — Pinckneyville—not a specific post or branch. At the time of execution of the will, several Boy Scout troops existed in Pinckneyville. If Lillian A. Schaub did not wish to benefit all scouting in Pinckneyville, she simply would have further restricted her bequest. By distributing the funds solely to Troop 47 and not even in-eluding Cub Scout Pack 47 among the recipients, the trustees and the court would be writing in restrictions Lillian A. Schaub chose not to exercise.

We also do not find persuasive the reasoning of First National Bank v. Canton Council of Campfire Girls, Inc. (1981), 85 Ill. 2d 507, 426 N.E.2d 1198, as relied upon by Troop 47, under the circumstances before us here. Unlike the facts present in Canton, scout troops were active and functioning in the designated area (Pinckneyville) at the time of Lillian A. Schaub’s death. Consequently, no “gift over” provisions need to be taken into account as occurred under the circumstances of the Canton case. Moreover, the testator in Canton was well aware of the existence of scouting councils as evidenced by the bequest to the Boy Scout area council while the bequest to the Girl Scouts (the one in issue) contained no such reference. More importantly, however, here there is evidence in the record that all funds distributed to the area council under Lillian A. Schaub’s will can and will be limited to benefit exclusively scouting in Pinckneyville with no deductions even for administrative expenses. Apparently no such restrictions were available or considered in the Canton case. We therefore find ample support in the record before us for the trial court’s determination in this instance. Distributing the money to Egyptian Counsel more than provides an effective method of perpetuating Lillian A. Schaub’s gift to benefit Boy Scouts in Pinckneyville. See also Hardy v. Davis (1958), 16 Ill. App. 2d 516, 148 N.E.2d 805; Mason v. Willis (1945), 326 Ill. App. 481, 62 N.E.2d 135.

For the aforementioned reasons, we affirm the judgment of the circuit court of Perry County.

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    PATRICK HOCKETT et al., Plaintiffs-Appellants, v. JOHN K. DAWDY et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0600
    Opinion filed March 2, 1989.

      Richard Shaikewitz, of Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellants.

      Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This is an appeal by plaintiffs from a judgment in favor of defendants entered April 27, 1987, upon a verdict in the circuit court of Bond County. The issues raised on appeal are: (1) whether the trial court erred in denying plaintiffs’ motion for change of venue; and (2) whether the trial court erred in denying plaintiffs’ motion to set aside the verdict and grant a new trial.

In a lawsuit filed October 18, 1984, plaintiffs alleged that medical malpractice by defendants increased the severity of plaintiff Patrick Hockett’s condition (a brain tumor) and diminished the likelihood of successful treatment. Plaintiff Patrick Hockett’s father was named as a party plaintiff due to Patrick’s minor status at the time the complaint was filed. A jury trial began on April 20,1987.

On the first day of trial, plaintiffs presented an oral motion for change of venue, alleging that they could not receive a fair trial in Bond County. In support of their motion, plaintiffs contended that defendant John Dawdy is known by many of the potential jurors in the county and that five of eight physicians practicing full time in the area were currently employed by defendant McCracken-Dawdy Family Practice Center. Further, one of the physicians employed at Mc-Cracken-Dawdy Family Practice Center was also a member of the board of directors at Utlaut Hospital, one of the largest employers in Bond County. According to plaintiffs, these factors made it unlikely that they would receive a trial by a fair and impartial jury in Bond County. The trial court deferred ruling on plaintiffs’ motion for a change of venue until after voir dire.

During voir dire, plaintiffs exercised six of the eight peremptory challenges allowed them. Additionally, approximately 24 potential jurors were excused for cause. Upon obtaining a panel of 12 jurors who stated individually an ability to decide the case free from bias or prejudice in favor of or against either plaintiffs or defendants, plaintiffs declined any additional challenges and accepted the jury. At that time, the trial court denied plaintiffs’ motion for a change of venue.

After hearing the evidence, arguments and instructions, the jury deliberated approximately six hours before returning a verdict in favor of defendants. At plaintiffs’ request, the jury was polled individually by the trial court and each juror confirmed the verdict. The trial court entered judgment on the verdict.

Subsequent to trial, Samuel Mormino, Jr., swore to an affidavit which stated that he personally contacted 5 of the 12 jurors who had served on the jury in the instant case and learned the following:

“A. That several jurors said during deliberations, ‘If we find against the doctors, we won’t have any doctors left in the county.’ That this was reportedly said by four of five of the jurors during the deliberations.
B. That one of the jurors used Dr. Dawdy as her personal physician.
C. That Foreman Dan Hinkle raised his voice to Donna Krummel one of the jurors in favor of the plaintiff and frightened her and scared her.
D. That the jurors felt that Jack Hockett looked like a bum and that Kelly Hockett had bad grades in school and that some of the jurors felt that they shouldn’t win for that reason.
E. That it was discussed in the jury room that all of the jurors liked Dr. Dawdy and did not want to hurt him.
F. Further, that at least one of the jurors stated that Dr. Dawdy was liked in the County very much and she felt there was no way that the Hocketts could get a fair trial in Bond County.”

The affidavit containing the above information was attached to plaintiffs’ motion for a new trial. On June 12, 1987, the trial court conducted a hearing on plaintiffs’ motion for a new trial. At plaintiffs’ request, one of the jurors from the trial of the instant case testified at the post-trial hearing. On July 21, 1987, an order was entered denying plaintiffs’ post-trial motion to set aside the verdict and for a new trial.

The first issue we are asked to consider is whether plaintiffs’ motion for a change of venue was properly denied. A change of venue in a civil action may be had when any party or his attorney fears that a fair trial will not be received in the court in which the action is pending, because the inhabitants of the county are prejudiced against one or more of the parties or their attorney, or the adverse party has an undue influence over the minds of the inhabitants. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001.) In any such situation the venue shall not be changed except upon application or by consent of the parties. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(a)(2).) Every application for a change of venue shall be by petition, setting forth the cause of the application and praying for a change of venue, which petition shall be verified by the affidavit of the applicant. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(c).) If the cause for the change is the prejudice of the inhabitants of the county or the undue influence of the adverse party over their minds, the petition shall set forth the facts upon which the petitioner bases his or her belief and must be supported by the affidavits of at least two other reputable persons residing in the county. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(d).) Further, where the basis of a petition for change of venue is the alleged prejudice of inhabitants of the county or the undue influence of the adverse party over their minds, the granting or denial of such petition rests in the discretion of the trial court, and a trial court’s decision should not be disturbed unless there is an abuse of discretion. Central Illinois Public Service Co. v. Westervelt (1976), 35 Ill. App. 3d 777, 779, 342 N.E.2d 463, 465; see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(d).

In the instant case, plaintiffs presented their motion for change of venue orally on the first day of trial. They did not comply with the statutory requirement that such a motion be presented by petition with supporting affidavits. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1001(c), (d).) The failure to submit a written petition may be considered as a basis for denial of a motion for change of venue. (Peck v. Rockford Life Insurance Co. (1973), 9 Ill. App. 3d 568, 292 N.E.2d 528.) Similarly, the failure to support the petition with two affidavits has been held sufficient to defeat an application for change of venue. (Schostak v. Vlahakis (1971), 133 Ill. App. 2d 690, 274 N.E.2d 655; Concerned Citizens For McHenry, Inc. v. City of McHenry (1979), 76 Ill. App. 3d 798, 395 N.E.2d 944.) The insufficiencies of plaintiffs’ motion notwithstanding, the trial court gave full consideration to plaintiffs’ request for a change of venue.

While we are aware that it would be within our power to affirm the trial court’s denial of plaintiffs’ oral request for a change of venue for failure to comply with the above-stated statutory requirements — as a lower court judgment may be sustained upon any ground warranted in the record regardless of whether it was relied on by the trial court (Alexander v. DePaepe (1986), 148 Ill. App. 3d 831, 499 N.E.2d 1065) — we choose to give plaintiffs full consideration of their claim, as did the trial court.

Instead of denying plaintiffs’ oral motion for a change of venue due to the failure to comply with statutory requirements, the trial court expressed great concern for whether it would be possible to select a fair and impartial jury from a venire drawn in Bond County and postponed judgment on plaintiffs’ motion until jury selection had at least been attempted. It was the trial court’s expressed belief that the best manner for determining whether a fair and impartial jury could be assembled in Bond County would be to undertake the selection of such a jury. Rather than speculate or hypothesize as to the possibility of selecting a fair and impartial jury, the court considered it appropriate to analyze the prospective jurors on an individual basis, attempting to select 12 jurors satisfactory to the court and counsel. At the outset, the trial court commented that, as a matter of procedure, counsel would be allowed to do “the greatest bulk of the voir dire.”

Under Supreme Court Rule 234 (107 Ill. 2d R. 234) the primary responsibility for initiating and conducting a voir dire examination is vested in the trial court, and the trial court has discretion to allow the parties to supplement its examination. The record of the proceedings in the present case indicates that the voir dire procedure was very thorough, continuing until the afternoon of the second day of trial. As a result of this thorough examination, many potential jurors were excused for cause and several more were excused peremptorily. In reviewing the trial court’s determination that plaintiffs could receive a fair trial in Bond County, it is significant that plaintiffs’ counsel did not exhaust all available peremptory challenges in selecting the jury. People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645.

The trial court in the present case removed for cause only those potential jurors who were currently under the care of a doctor affiliated with defendant McCracken-Dawdy Family Practice Center. Plaintiffs complain that the trial court should not have limited its removal for cause to potential jurors currently under the care of a physician affiliated with defendant McCracken-Dawdy, and suggest that the court should have removed for cause any juror who had been under defendants’ care at any time prior to or during trial. Again, plaintiffs did not exhaust their allotted peremptory challenges, nor did they request additional peremptory challenges to be used in removing potential jurors who, at any time prior to trial, had been treated at McCracken-Dawdy or by one of its affiliated physicians. Our supreme court has held that the failure to challenge a juror for cause or exercise a peremptory challenge waives any objection to that juror. (Kingston v. Turner (1987), 115 Ill. 2d 445, 465, 505 N.E.2d 320, 329.) Finally, once the jury and alternates had been selected, the court denied plaintiffs’ motion for a change of venue, stating its recognition that the voir dire procedure had resulted in the obtainment of a jury satisfactory to counsel. We are unable to find that the trial court abused its discretion in denying plaintiffs’ motion for change of venue, and its ruling will not be disturbed.

The other issue we are asked to consider is whether the trial court erred in failing to grant plaintiffs’ motion to have the verdict set aside and for a new trial. During voir dire, jurors were asked whether the fact that five out of eight doctors practicing full time in Bond County were defendants in the underlying law suit would not affect their assessment of the facts and application of law. In their post-trial motion, plaintiffs alleged that approximately nine of the jurors either affirmatively stated or agreed with a statement allegedly made during deliberations to the effect that “if we find against the doctors, we won’t have any doctors left in the county.” The trial court allowed one of the jurors to testify at the evidentiary hearing on plaintiffs’ motion to set aside the verdict. In further support of plaintiffs’ motion to set aside the verdict, the affidavit of Samuel Mormino, Jr., the essence of which is enunciated in the facts above, was submitted to the court.

Our supreme court has held that a motion for a new trial based on jurors’ false testimony during voir dire should be denied unless the movant establishes both that a juror answered falsely and that prejudice resulted. (Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, 139, 368 N.E.2d 900, 901.) The Pekelder court also ruled that the determination of such an issue is primarily left to the discretion of the trial court, which is in the better position to observe the jurors and their demeanor. (68 Ill. 2d at 139, 368 N.E.2d at 901.) Absent a clear abuse, the trial court’s discretion will not be disturbed on appeal. People v. Hunt (1983), 112 Ill. App. 3d 138, 445 N.E.2d 408.

As a general rule, courts will not receive the affidavits or testimony of jurors who rendered a verdict for the purpose of impeaching the verdict. (People v. Tobe (1971), 49 Ill. 2d 538, 543, 276 N.E.2d 294, 298.) An exception to this rule arises when it is charged that a juror has answered falsely on voir dire about a matter of potential bias or prejudice. (Department of Public Works & Buildings v. Christensen (1962), 25 Ill. 2d 273, 279, 184 N.E.2d 884, 887.) In the present case, the affidavit was submitted by a third-party affiant, not a juror. The trial court did not consider this affidavit in making its ruling on plaintiffs’ post-trial motion. It appears that the trial court may have disregarded Mormino’s affidavit because it was from a third party, or because it was not within the exception stated in Christensen. We note that in People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629, the court allowed the introduction of a third-party affidavit when considering an attempt to impeach a verdict. However, the third-party affidavits in Farris did not contain hearsay. We find it unnecessary to delve further into the reasoning of the trial court as the trial court’s decision to disregard Mormino’s affidavit was proper and may be affirmed in the instant case because the information contained in the affidavit is undoubtedly hearsay. See People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741.

At the post-trial hearing, the trial court did consider testimony from one of the jurors. Our disposition, then, turns on whether, in considering the evidence presented at the post-trial hearing, in addition to other matters of record, the trial court abused its discretion in determining that plaintiffs failed to satisfy the two-part standard stated in Pekelder. In the instant case, we are unable to find that plaintiffs satisfied the requirements stated in Pekelder, and therefore, the trial court did not abuse its discretion in denying plaintiffs’ motion for a new trial.

It has been recognized that the actual effect of outside influences on the minds of the jury cannot be proved. (People v. Holmes (1978), 69 Ill. 2d 507, 514, 372 N.E.2d 656, 659.) In fact, evidence relating to the effect of such influences on the mental processes of jurors has been held inadmissible. (People v. Pulaski (1958), 15 Ill. 2d 291, 300, 155 N.E.2d 29, 34.) In determining whether prejudice resulted from outside influences on a jury, our supreme court has held that the standard to be applied is whether the conduct involved such a probability that prejudice will result that it is to be deemed inherently lacking in due process. (People v. Holmes (1978), 69 Ill. 2d 507, 513, 372 N.E.2d 656, 659.) In the present case, we are unable to find that due process was lacking.

The trial court had before it the record of the thorough voir dire and allowed plaintiffs to call members of the jury to testify at the post-trial hearing. The record of the post-trial proceedings indicates that the juror who testified on behalf of plaintiffs was somewhat unclear, and at times inconsistent and confusing. The essence of what can be gathered from the record of the juror’s testimony is that some of the jurors expressed an awareness of the so-called “medical-malpractice crisis” and did not want to scare away medical care. Further, she stated her belief, in somewhat uncertain terms, that the doctor named as a defendant in the underlying suit was a “nice person” against whom the jury did not want to return a verdict.

It must be remembered that all a party to a suit is entitled to in any lawsuit is a jury composed of persons who have sworn under oath that they can lay aside anything that they might have learned about the case from whatever source together with any opinions they may have formed and judge the case solely on the facts produced in open court and on the law given them by the trial judge. (People v. Farris (1980), 82 Ill. App. 3d 147, 152, 402 N.E.2d 629, 633-34.) In the case before us, the fact that jurors may have considered the defendant to be a nice person, or their awareness of a medical-malpractice crisis, does not necessarily lead to the conclusion that the jury could not have found against the defendant if the facts supported such a finding. The trial court heard the testimony presented at the post-trial hearing and participated in the voir dire proceedings; therefore, the court was in a better position to judge the credibility of the juror who testified on behalf of plaintiffs. Unable to find that the trial court abused its discretion in denying plaintiffs’ post-trial motion, we will not interfere.

For the above reasons, the judgment of the circuit court of Bond County is hereby affirmed.

Affirmed.

HARRISON AND LEWIS, JJ., concur.


author: JUSTICE HARRISON

text:
    RUE FLINN, by her Next Friend, Evelyn Brogan, Plaintiff-Appellant, v. FOUR FOUNTAINS, INC., Defendant-Appellee.
    Fifth District
    No. 5—87—0485
    Opinion filed March 3, 1989.

      John J. Hopkins, of Hopkins & Bilbrey, P.C., of Granite City, for appellants.
    John L. McMullin and Beth A. Kamp, both of Brown, James & Babbitt, P.C., of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Rue Flinn, was a resident of a private nursing home operated by defendant, Four Fountains, Inc. While residing at the nursing home, plaintiff fell down and was injured. She brought an action against defendant in the circuit court of Madison County, by her next Mend, Evelyn Brogan, to recover damages for the injuries she sustained. In her complaint, plaintiff alleged, inter alia, that her injuries resulted from defendant’s failure to comply with certain terms and conditions imposed by the Nursing Home Care Reform Act of 1979 (111. Rev. Stat. 1987, ch. 111%, par. 4151-101 et seq.). Following a jury trial a verdict was returned in favor of defendant. Judgment was entered on that verdict, and plaintiff’s post-trial motion was denied. She now appeals. We affirm.

The sole question presented for our review is whether the circuit court committed reversible error when it refused to give the following jury instruction, which was tendered by plaintiff:

“An injury to a nursing home resident raises the presumption of a failure on the part of the nursing home to provide adequate general supervision. This presumption should be considered by you along with all other evidence in this case.
It is a rebuttable presumption and can be overcome by evidence to the contrary.”

Recognition of the presumption of fault as provided in this proposed instruction was critical to plaintiff’s claim. This is so because plaintiff, herself, suffered from organic brain syndrome, a condition which rendered her incapable of testifying about the circumstances of her accident, and no other eyewitnesses were found who might be able to substantiate that the fall was caused by some act or omission attributable to defendant. The only real evidence on the question of causation consisted of medical testimony which suggested that plaintiff’s fall may have been caused simply by a spontaneous fracture of her hip. Absent some presumption of fault, plaintiff would therefore have no basis for imposing liability upon defendant. According to plaintiff, this would not only defeat her own claim, but would also impair the ability of other, similarly situated nursing home residents to enforce their rights under the Nursing Home Care Reform Act (Act) (Ill. Rev. Stat. 1987, ch. HV-k, par. 4151 — 101 et seq.).

We appreciate plaintiff’s position. She has, however, been unable to advance any authority from this or any other jurisdiction upon which that position can be sustained. Nothing in the express language of the Act, itself, purports to impose a presumption of fault, and we know of nothing in the common law which would permit this court to graft such a presumption onto the Act’s provisions. Accordingly, we cannot say that the circuit court erred when it refused to tender to the jury the proposed instruction quoted above. The judgment of the circuit court of Madison County is therefore affirmed.

Affirmed.

WELCH, P.J., and LEWIS, J., concur.


text:
    MERRIL M. HUCH, Plaintiff-Appellant, v. S.J. GROVES AND SONS, INC., d/b/a Lock 26 Constructors, Defendant-Appellee.
    Fifth District
    No. 5—87—0696
    Opinion filed March 3, 1989.

      Edward J. Kionka, of Murphysboro, and Jerald J. Bonifield, of Belle-ville, for appellant.
    D. Bradley Blodgett, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Merril M. Huch, filed an action in the circuit court of Madison County to recover damages from defendant, S.J. Groves and Sons, Inc., d/b/a Lock 26 Constructors, for personal injuries he sustained in the course of his employment. Plaintiff brought his action pursuant to 46 U.S.C.A. §688 (West 1975), commonly known as the Jones Act. Following certain pretrial discovery, defendant moved for summary judgment on the grounds that plaintiff was not a “seaman” and therefore was not entitled to sue under the Jones Act. Defendant’s motion was granted, and judgment was entered in its favor. Plaintiff now appeals. We reverse.

Under section 2 — 1005(c) of the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c)), summary judgment is proper only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Illinois courts have repeatedly emphasized that the purpose of summary judgment is not to try a question of fact, but to determine whether a triable question of fact exists. (Miller v. Smith (1985), 137 March 3, 1989. App. 3d 192, 196, 484 N.E.2d 492, 496.) Summary judgment is a drastic remedy. It must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of the case where a material dispute may exist. In passing on a summary judgment motion, the trial court is therefore required to construe the pleadings, affidavits, depositions and admissions on file strictly against the moving party and liberally in favor of the opponent. Only if these materials establish that the movant’s entitlement to summary judgment is clear and free from doubt may such a motion be granted. (137 March 3, 1989. App. 3d at 196, 484 N.E.2d at 496.) This is not such a case.

The sole question presented by defendant’s motion for summary judgment here was whether plaintiff was a “seaman” within the meaning of the Jones Act and therefore entitled to sue defendant, his employer, under the Act for negligence. This court has adopted the test set forth by the United States Court of Appeals for the Seventh Circuit in Johnson v. John F. Beasley Construction Co. (7th Cir. 1984), 742 F.2d 1054, 1062-63, cert. denied (1985), 469 U.S. 1211, 84 L. Ed. 2d 328, 105 S. Ct. 1180, for determining whether an injured party has seaman’s status. (Dungey v. United States Steel Corp. (1986), 148 Ill. App. 3d 484, 493-96, 499 N.E.2d 545, 552-53, cert. denied (1987), 484 U.S. 819, 98 L. Ed. 2d 38, 108 S. Ct. 75; Dale v. Luhr Brothers, Inc. (1987), 158 Ill. App. 3d 402, 407, 511 N.E.2d 933, 935, cert. denied (1988), 486 U.S. 1007, 100 L. Ed. 2d 198, 108 S. Ct. 1734.) Specifically, we have held that there is an evidentiary basis for submitting to the trier of fact the question of an injured party’s status as a seaman if:

“(1) the person injured had a more or less permanent connection with a vessel in navigation, and (2) the person injured made a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel.” 158 Ill. App. 3d at 407, 511 N.E.2d at 935.

The pleadings, affidavits and depositions on file in this case indicate that defendant had a contract with the United States Army-Corps of Engineers to construct the replacement Lock and Dam No. 26, second stage lock, in the Mississippi River near Alton, Illinois. Defendant created a cofferdam by erecting cells which enclosed the construction site. To facilitate work on the cofferdam, defendant obtained barges. It used these barges to move material and as a place for doing fabrication work.

Plaintiff was an operating engineer, that is, one who operates heavy equipment. On June 19, 1985, plaintiff was hired by defendant to replace a worker who had become sick. After reporting to work, plaintiff was taken by boat to one of the barges used by defendant for work on the cofferdam. The barge was located in the middle of the river and was moored to the cofferdam by mooring lines. It was not self-propelled and had no steering capacity. It had to be pushed into place by tugboats and then secured with mooring lines.

The barge was made of steel and had a flat deck. It was called a “fab barge” because it was used for the fabrication of steel material. The barge was not equipped with a cabin, galley, fresh water storage, permanent toilets, or fixed navigational lights, but it did have a trailer, which was used by workers to change clothes, eat lunch, and protect themselves from the elements. Also located on the deck of the barge was a 14- or 18-ton “cherry picker” crane. Plaintiff’s job on the barge was to operate this crane.

On the day plaintiff was injured, the barge was moored in the middle of the river. Plaintiff was transported there by boat. Upon his arrival, plaintiff was directed to move “some ladders and things” for the pile drivers so that the barge could move further ahead and work on the piling could be performed. After completing this assignment, plaintiff went to the trailer to take his break. When the break was over, plaintiff decided to go back outside to look around. As he exited the trailer and started down the steps in front of it, one of the steps gave way and he fell to the ground. In plaintiff’s words, “I went down twisted my knee and hit my elbow and jammed my shoulder.” That fall, and the resulting injuries sustained by plaintiff, are the basis for plaintiff’s Jones Act claim against defendant. There is no dispute that the circuit court granted defendant’s motion for summary judgment only because it believed that plaintiff could not, as a matter of law, be regarded as a “seaman” within the meaning of the Jones Act. On this appeal, plaintiff argues that the circuit court’s decision cannot be sustained because a genuine issue remains as to plaintiff’s status as a “seaman.” We agree.

As we have indicated, there is an evidentiary basis for submitting to the trier of fact the question of the injured party’s status as a seaman if:

“(1) the person injured had a more or less permanent connection with a vessel in navigation, and (2) the person injured made a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel.” (Dale, 158 Ill. App. 3d at 407, 511 N.E.2d at 935.)

In this case, defendant concedes that the barge on which plaintiff was employed constituted “a vessel in navigation.” Defendant argues, however, that plaintiff did not have “a more or less permanent connection” with that vessel. This argument must fail. In analyzing whether an injured party had the status of a “seaman,” one must look to his duties and permanency at the time of his accident. (Snelling v. Elmer Logsdon River Construction Co. (1983), 120 Ill. App. 3d 80, 83, 457 N.E.2d 990, 992.) The materials submitted to the circuit court here indicated that, at the time of his injury, plaintiff had been hired by defendant to replace one of its regular workers and that his responsibilities were limited to operating the “cherry picker” crane on the barge. Although plaintiff’s employment may have ended after as little as one day if the regular worker decided to return to work, uncontradicted deposition testimony by plaintiff indicated that he may ultimately have remained at work on the barge “forever.”

Defendant points out that plaintiff had only been on the job for several hours at the time he was injured, but this is not dis-positive. An employee who is otherwise entitled to bring an action under the Jones Act cannot be barred from seeking relief merely because he happens to be new on the job. As one Federal court has held, lack of long, continued attachment to a vessel cannot, as a matter of law, serve to deny seaman’s status under the Jones Act to an employee who is injured while assigned to and performing normal crew service. (Mach v. Pennsylvania R.R. Co. (3d Cir. 1963), 317 F.2d 761, 764.) Plaintiff was not a temporary worker. He was a replacement worker. The record, as presented to the circuit court, indicates that he was hired exclusively to work on the barge, and during the entire time he was employed by defendant, the only work he did he did on the barge. At a minimum, we therefore believe that a genuine issue existed as to whether plaintiff had “a more or less permanent connection” with the barge at the time he was injured.

Defendant argues, in the alternative, that entry of summary judgment by the circuit court was nevertheless proper because the record is devoid of evidence which would establish the second prong of the test for seaman status, namely, that plaintiff made “a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel.” In particular, defendant contends that on the facts of this case, plaintiff “clearly” did not contribute in any way to the transportation function of the vessel. We disagree.

Defendant submitted an affidavit from Leland Tonack, its safety manager on the Lock No. 26 construction project, which stated:

“The barges, including the one upon which the plaintiff had his accident, had only a work crew which was engaged in cofferdam erection activity. Tugboats pushed the barges into place, and secured them in place with mooring lines. The work crew to which the plaintiff was assigned to support had absolutely nothing to do with the transportation of the barges by the tugs, or with the securing off of the barges with the mooring lines.”

As we have previously indicated, however, plaintiff testified in his deposition that when he reported to the barge, he was directed “to move some ladders and things for them, for the pile driver so they could move the barge farther ahead so they could work on the piling.” In addition, an affidavit by Larry J. Schulz, who was working with plaintiff on the day he was injured, indicated that the “cherry picker” crane which plaintiff was assigned to operate on the day of his injury was being used “to remove certain ladders and other materials that were fixed from the barge to the stationary parts of the dam in construction so that the barge could be moved from one place to another.” Schulz further swore in his affidavit that plaintiff’s “sole occupation on that particular day was preparing the barge for movement from one place to another so the construction project, which proceeded from that particular barge, could continue.”

In view of this, we likewise believe that a genuine issue remained as to whether plaintiff made a significant contribution to the transportation function of the barge. (See Dale v. Luhr Brothers, Inc. (1987), 158 Ill. App. 3d 402, 511 N.E.2d 933, cert. denied (1988), 486 U.S. 1007, 100 L. Ed. 2d 198, 108 S. Ct. 1734.) If the circuit court based its decision to grant summary judgment on this point, it therefore erred. Defendant has not cited, and we have not found, any other basis upon which the circuit court’s decision can be sustained. Accordingly, the circuit court’s order granting summary judgment in favor of defendant is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and LEWIS, J., concur.