author: PRESIDING JUSTICE LaPORTA

text:
    ANGELA BENNETTO, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0144
    Opinion filed January 12, 1990.

      Hayt, Hayt & Landau, of Evanston (Paul A. Grabowski, Mary D. Aver-sano, and Raymond E. Clutts, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and David Adler, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Angela Bennetto, applied for medicaid benefits and was denied. The denial was affirmed after an administrative review, and she appealed to the trial court, which also affirmed. We reverse and remand for further proceedings in accordance with this opinion.

Three issues were raised on appeal: whether the Illinois Department of Public Aid (IDEA) breached a duty to assist the plaintiff in obtaining benefits by securing necessary verifications to support her application; whether plaintiff should have been granted benefits because she is a person permanently residing under color of law; and whether the copy of the automobile title and the Immigration and Naturalization Service (INS) receipt were timely mailed by plaintiff, and whether receipt of them should be inferred.

Plaintiff was born in Mexico and moved to the United States in 1971. In 1975, she married Gordon Bennetto, a United States citizen. They have four children.

On April 15, 1987, plaintiff’s husband and a hospital caseworker filed for medicaid benefits on plaintiff's behalf, submitting copies of numerous documents with the application, including birth certificates for plaintiff, her husband, and three of their children; social security cards for plaintiff and three of their children; plaintiff and husband’s marriage certificate; and other documents.

A letter (Form 267) was sent to plaintiff, directing her to contact a caseworker at the IDEA by or on May 1, 1987. Plaintiff contacted the caseworker, who informed her that IDPA needed a copy of their automobile title and documentation from the INS as to plaintiff’s status. A second Form 267 was sent to plaintiff repeating this information.

Plaintiff testified that she mailed copies of the automobile title and a receipt from INS to the caseworker; the caseworker testified that these had not been received. In a follow-up call approximately two to three weeks later, the caseworker informed plaintiff that the documents had not arrived, and she and her husband testified at the administrative review hearing that they decided to hand deliver the next copies.

Plaintiff and her husband also attempted to contact INS to determine the status of plaintiff’s application for permanent residence. Someone at INS told them that plaintiff’s file was lost and they would have to refile the application for her permanent residency status.

Plaintiff and her husband did not send the necessary verifications to IDPA by May 14, 1987, the date specified in the caseworker’s second Form 267, and plaintiff’s application for medicaid was denied on June 18, 1987. However, plaintiff and her husband testified without contradiction that they met with the caseworker in late June and were not informed at that time that the application had been denied nor that they had the right to request a reconsideration of the application. On July 1,1987, plaintiff appealed the denial of benefits.

Plaintiff and her husband continued to attempt to obtain information regarding plaintiff’s residency status from INS. On July 3, 1987, plaintiff and her husband went to the local INS office to attempt to obtain the necessary documentation of her status but found the office closed. Upon leaving the area they sustained injuries in a motorcycle accident, which delayed their attempts to obtain the necessary documents of plaintiff’s citizenship status.

At an administrative review hearing, plaintiff proffered copies of the car title and INS receipt. After the hearing, the hearing officer made a finding of fact that plaintiff had in fact not mailed the verifications to IDPA and affirmed the denial of benefits. Plaintiff appealed to the circuit court, and after a hearing, the trial judge affirmed the decision of the administrative review officer. Plaintiff appealed to this court.

In reviewing an administrative decision, the trial court may not entertain “new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency” and “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The court may only review the agency’s findings to determine whether they are supported by the manifest weight of the evidence (Cohen v. Department of Insurance (1988), 173 Ill. App. 3d 363, 369, 527 N.E.2d 581, 586), and the fact that the evidence is conflicting (Hofmeister v. Department of Registration & Education ex rel. Galvin (1978), 62 Ill. App. 3d 777, 781, 379 N.E.2d 383, 386), or even that the evidence supports the opposite view (Sheehen v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467, 476), does not alone authorize reversal. If the evidence sustains the agency’s decision, that decision must be upheld. Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 194, 524 N.E.2d 1172, 1175.

Plaintiff argues that IDPA failed to adequately assist her in applying for benefits, first by not assisting her in obtaining needed supporting information, and secondly, by not informing her of alternative and equally acceptable proofs. IDPA responded that it was incumbent upon plaintiff to provide verification of her family’s assets, and to either provide or request assistance in obtaining proof of her alien status; because plaintiff did neither, IDPA was required to deny her application for medicaid benefits.

The Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 1 — 1 et seq.) directs IDPA employees to act courteously (Ill. Rev. Stat. 1987, ch. 23, par. 11 — 2) and provides that IDPA employes may assist applicants “in securing evidence in support of their eligibility” (Ill. Rev. Stat. 1987, ch. 23, par. 11 — 4).

The Illinois Administrative Code section discussing “Client Cooperation” for medical assistance benefits states that when third-party information is required, and the applicant is unable to obtain this information, “upon the applicant’s request the Department will assist in securing evidence to support the client’s eligibility for assistance.” (89 Ill. Adm. Code §120.308(d)(3) (Supp. 1988).) The Illinois Department of Public Aid Manual, cited by plaintiff, states that if the applicant cannot provide verification, “staff with the consent of the applicant will assist in obtaining such information.” IDPA Manual, PO — 315(2).

The case primarily relied upon by plaintiff concerns an applicant who neither spoke nor read English, and although her application did not specify this limitation, it did give her landlord’s name, address, and telephone number for an emergency contact. (Siemion v. Department of Public Aid (1988), 168 Ill. App. 3d 187, 188-89, 522 N.E.2d 627, 628-29.) Her application was denied within the 45-day processing period. (Siemion, 168 Ill. App. 3d at 195, 522 N.E.2d at 633.) The appellate court affirmed the trial court’s finding that IDPA failed to adequately assist the applicant in processing her application because it did not contact her landlord when it could not contact the applicant. (Siemion, 168 Ill. App. 3d at 195, 522 N.E.2d at 633.) The appellate court was critical of IDPA for its swiftness in denying the application (Siemion, 168 Ill. App. 3d at 195, 522 N.E.2d at 633), especially because a telephone call to the applicant herself was inconclusive because of the language barrier (Siemion, 168 Ill. App. 3d at 191, 522 N.E.2d at 629-30).

In the case at bar, plaintiff’s application was received on April 15, 1987, and denied on June 18, 1987, some 64 days later. Plaintiff and her husband understand the English language, corroborated not only by their testimony at the administrative review hearing but by the fact that they did attempt to comply with IDPA’s requests for documentation and the fact that plaintiff had a telephone interview with the IDPA caseworker on May 1, 1987.

Plaintiff also relies upon the administrative review and hearing officer’s decision in In re Appeal of Noreen Knight (IDPA, Dec. 22, 1987), No. 87 — 11609—AMI. In that case, the hearing officer found that Knight’s husband informed IDPA that the requested documents could not be provided because they were in rooms from which the Knights had been evicted, and found the “department did not suggest alternative means of securing the items or other acceptable forms of verification.” (Knight, slip op. at 2.) The hearing officer reversed ID-PA’s rejection of Knight’s application.

IDPA argues that it breached no duty to plaintiff because it is not required to take the initiative, but only to assist the applicant if requested to do so, and that plaintiff neither requested any assistance nor indicated that she was having any difficulty in obtaining the required verifications. Unlike Knight, there is no indication here that plaintiff or her husband either informed the caseworker that they were having difficulty in obtaining the required verifications or asked IDPA for assistance in obtaining the verifications. The caseworker did testify that plaintiff brought in the INS receipt after plaintiffs application had been denied. She did not testify that she refused the receipt nor otherwise indicate to plaintiff at that time that the application had been denied. Plaintiff and her husband testified that they were told only that the receipt was inadequate proof of status, and that they should obtain “some kind of letter” from INS to support plaintiff’s claim of residency. There is no indication that the caseworker gave them any other information as to the type of proof required or in any way offered to aid them in obtaining the proof.

While the caseworker may have acted within the letter of the statute and regulations, she certainly did not act within their spirit. It is obvious from the record that plaintiff and her husband were trying to obtain the necessary proofs and were unsuccessful. At a minimum, the caseworker should have undertaken to assist them with specific information as to what proofs would be acceptable to IDPA to establish plaintiff’s residency status in support of her application for benefits.

Plaintiff contends that because she is residing in the United States under color of law, she should have been granted medical assistance benefits. Plaintiff argues that she has resided in the United States continuously since 1971; that she is married to a United States citizen and has four children who are United States citizens; that she has a social security number and had previously received food stamps; and that her husband had filed an “immediate relative” petition (Form 1-130) for her to gain permanent residency, for proof of which she offered a copy of the receipt from INS indicating that the fee for filing this form had been paid.

Among the persons eligible for medicaid benefits are “[a]liens lawfully admitted for permanent residence or permanently residing in the United States under color of law.” (42 C.F.R. §435.402 (1988).) The Medicare and Medicaid Guide (the Guide) defines persons residing in the United States under color of law as aliens who “are the immediate relatives of an American citizen or a lawful permanent resident and have had filed on their behalf a Form 1-130 petition for issuance of an immigration visa.” (Medicaid and Medicare Guide §3212.4(f)(l).) However, the Guide clearly states that as proof of status the alien should have a Form 1-94 and/or an 1-210 Letter. (Medicare and Medicaid Guide §3212.4(f)(3).) Plaintiff apparently has been unable to produce such documentation. She could offer no documentation other than the receipt indicating that a Form 1-130 had been filed, but the receipt gave no indication on its face either by or for whom the form was filed nor did it indicate plaintiff’s current status with INS. This document alone does not fulfill the requirements of the Illinois Department of Public Aid nor by itself does it satisfy the Federal documentary requirements to qualify for medicaid benefits.

In a case with facts very similar to those of the case at bar, the Second Circuit held that a woman who had moved to the United States as a child, married a United States citizen, and subsequently bore six children who are United States citizens qualified as a person residing in the United States under color of law. (Holley v. Lavine (2d Cir. 1977), 553 F.2d 845.) The determinative factor, the court found, was a “formal letter” by INS to “a responsible official of the New York State Department of Social Services that ‘deportation proceedings have not been instituted...for humanitarian reasons’ and the ‘Service does not contemplate enforcing her departure from the United States at this time.’ ” (Holley, 553 F.2d at 849.) This is distinguishable from the facts of our case because the plaintiff here has no official document from INS except for the receipt. (See also Zurmati v. McMahon (1986), 180 Cal. App. 3d 164, 225 Cal. Rptr. 374 (petitioner had a letter from INS which indicated that her request for political asylum was being considered, permitting her to remain in the United States in the interim and authorizing employment; the court held this insufficient to establish status as a person residing in the United States under color of law, because it did not comport with any of the six categories of such status, which the court found involve “an affirmative ‘admission’ or ‘grant,’ by a competent official authority, of a specific status.” (180 Cal. App. 3d at 175, 225 Cal. Rptr. at 380)).) Plaintiff was required to offer affirmative proof of her status, and the IDEA found she had failed to do so. We must consider whether her failure to document her status was sufficient reason to deny her medicaid benefits.

An examination of the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 1 — 1 et seq.) discloses that IDEA employees are required to act courteously and with respect in dealing with applicants who seek public aid benefits and to “perform duties in such manner as to secure for every applicant and recipient the aid and services to which the person may be entitled.” (Ill. Rev. Stat. 1987, ch. 23, par. 11—2.) Clearly, the spirit of the law is that IDEA personnel should render whatever assistance is necessary to a qualified applicant so that benefits available to that person are not withheld or denied because of the applicant’s confusion or misunderstanding of documentation required to qualify, or of the time limitations within which the filings must occur, or of any other deficiencies in the application process. It is contrary to the spirit of the Illinois Public Aid Code that an application be summarily rejected for the applicant’s failure to file supporting documents if no attempt is made by IDEA to assist the applicant in obtaining the requisite proofs of alien status if and when the applicant has difficulty in accomplishing such compliance on her own.

Here the plaintiff attempted to comply when the caseworker advised her that, in addition to the substantial documentation filed with the application, she was required to file a copy of the car title to verify her family’s assets and to submit some proof of her status from INS. Plaintiff testified that she mailed copies of both the car title and the receipt verifying the application for permanent residence filed with INS on her behalf. The caseworker testified that she did not receive them, but she did not testify that she made any attempt to advise plaintiff that these documents had not been received prior to the denial of medicaid benefits nor did she testify that she made any attempt to contact INS directly to verify plaintiff’s status either before or after the denial of benefits.

The record discloses the substantial efforts of the plaintiff to comply with IDPA’s requirements. Plaintiff testified that she was advised by INS that the file on her application for permanent residence had been lost and that she was advised by them to reapply. Plaintiff produced the receipt she had to verify that her application for permanent residence had been filed in 1983, which was the only documentary proof she had.

Plaintiff filed her application for medicaid benefits with IDPA on April 15, 1987. Five months prior to her application, on November 6, 1986, the Immigration Reform and Control Act (the Act) (Pub. Act 99 — 603) was passed. The Act at section 203 changed the requirements to establish residence under color of law. Prior to the Act, an applicant qualified for this status if she had resided in the United States continuously from June 30, 1948, to the date of application. Section 203 changed the requirement to continuous residence in the United States from January 1,1972, to the date of application.

Unless a statute specifies otherwise it becomes effective as of its date of passage. (Lapeyre v. United States (1873), 84 U.S. (17 Wall.) 191, 21 L. Ed. 606; Matthews v. Zane (1822), 20 U.S. (7 Wheat.) 164, 5 L. Ed. 425; United States v. Cirrincione (N.D. Ill. 1985), 600 F. Supp. 1436, 1438, aff'd (1985), 780 F.2d 620; General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 379, 469 N.E.2d 1067, 1076-77.) The applicable Federal regulation (8 C.F.R. §249.2(a) (1989)) detailing what constitutes sufficient proof of residence was published in the Federal register on March 3, 1987 (52 Fed. Reg. 6322 (1987)), 43 days before plaintiff filed her application.

Even though the Federal change was in effect on the date of plaintiffs application, the relevant portion of the Illinois Administrative Code was not changed until May 17, 1988, over one year later. (89 Ill. Adm. Code §120.310 (Supp. 1988).) Clearly IDPA did not process plaintiff’s application under the amended Federal guidelines. An agency’s delay in implementing a Federal statute will not be permitted to defeat the intent of that statute. Because the Federal regulations on eligibility for medicaid benefits state that “[a]liens *** permanently residing in the United States under color of law” are eligible for benefits, and because plaintiff’s application for benefits indicates that she moved to Illinois in 1971, she should have been offered the opportunity to prove her continued residence in the United States from January 1,1972, under the amended Federal guidelines.

Plaintiff produced a copy of the car title and the receipt from INS showing that an application for permanent residence had been filed on her behalf. Both were rejected by the hearing officer as not timely filed.

We find IDPA’s processing of plaintiff’s application for medicaid benefits was a summary disposition and as such was unnecessarily harsh and contrary to the spirit of the Illinois Public Aid Code. Plaintiff was not offered the expertise or assistance of the caseworker in the gathering of supporting documentation necessary to complete her application even though the statute requires it.

For these reasons, we reverse and remand with directions to IDPA that plaintiffs application for medicaid benefits be reinstated for further processing, that IDPA assist plaintiff in documenting her status as a person residing in the United States under color of law since January 1, 1972, and in assembling any other proofs required to process her applications for medicaid benefits to its conclusion.

Reversed and remanded.

McNAMARA and EGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    CONNIE NELSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Williams & Meyer, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—0246WC
    Opinion filed January 12, 1990.

      Patrick A. Tallón, Ltd., of LaGrange (Patrick A. Tallón and Vitas J. Mockaitis, of counsel), for appellant.
    Sweeney & Riman, Ltd., of Chicago (Thomas J. Mailers, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant appeals from an order of the Industrial Commission (Commission) which denied benefits, finding claimant failed to prove a causal connection between her condition of ill-being and the accident she suffered. On appeal, she contends the original award of benefits by the arbitrator should be reinstated because the Commission lost jurisdiction to modify the award because it failed to render its decision within the deadline set by statute. Additionally, claimant contends the Commission’s determination she failed to establish a causal connection between her condition of ill-being and the industrial accident was against the manifest weight of the evidence. We affirm.

Claimant was a 39-year-old sales representative for respondent, a commercial color laboratory, which produced artwork for ad agencies and businesses. Her job consisted of making calls on existing and prospective customers in the downtown Chicago area. Because of proximity, she would normally walk to each destination on the 20 such calls made during a normal workday.

On February 21, 1986, while walking west on Waeker Drive at approximately 10 or 11 a.m., claimant testified she “tripped over a place in the pavement or ice.” At the time she was carrying a briefcase, a satchel purse, and a 14- by 11-inch mounted art print. Although she stumbled, claimant did not drop anything and did not fall. She was unaffected by the stumble and went on her way to keep her appointments.

Toward the end of the day at approximately 3 p.m. while waiting for an appointment, she testified, her lower back began to hurt. Because the pain increased she decided not to keep her appointment and took a taxi back to the office.

The next day she went to the Northwestern Hospital emergency room. X rays of her back were taken, and she was prescribed a light painkiller and bed rest. She returned to work the following Tuesday for a half day. Her back pain had fully subsided, and she worked full time until the following Wednesday. On that day, she testified that while walking to an appointment she began experiencing trouble walking and noticed pain in her right leg. Her doctor advised her to quit work for the day. She went to the orthopedic unit at Northwestern hospital the next day, March 6, 1986. After certain tests and a physical exam were administered, she was told to go home. She remained in bed for 11 days.

Claimant returned to work at the end of March but worked only four hours a day. She stated she had no back pain at that time but because of bed rest was weak and tired. She slowly returned to roughly full-time duties by the end of April, when she began experiencing problems with her back again. A doctor told her to cut back her hours.

Claimant continued working until August 6, 1986, when she again experienced pain in her back. An exercise routine and painkillers were prescribed. Although she testified she never worked a full 40-hour week after February 21, 1986, claimant continued to work approximately six hours a day through the winter of 1986 until her employment was terminated on April 15, 1987.

After she lost her job, claimant looked for work but did not accept any job offers. She was bedridden from June 24 to July 8, 1987. She was enrolled in a “back school” at Northwestern and received physical therapy once a week. At the time of arbitration, she had completed the course but had not yet been evaluated by the physical therapist. She testified she continues to suffer from back stiffness and pain which radiates into the buttocks and legs.

Other than a minor injury to her neck and cervical spine following a 1981 automobile accident, claimant adamantly maintained she suffered no low back pain or other back injury prior to February 21, 1986.

On cross-examination, claimant stated she was not sure what caused her to trip on February 21, although it could have been a break in the sidewalk or ice which had formed in a crack. She also stated she did not remember if she told emergency room personnel she had suffered an accident the previous day.

The emergency room records from Northwestern were shown to claimant. They indicate she told hospital personnel she had sharp back pain for the previous three days and general back pain for the last three months. When asked about this discrepancy, claimant denied a history of prior back pain, stating the records from the emergency room were probably a mistake.

No medical testimony was presented on behalf of claimant except for the records of Dr. Shybut, her treating physician. In July 1987 he diagnosed a herniation of the L5-S1 disc. Also included in those records was the emergency room report in which the history claimant gave revealed she reported sharp back pains for three days prior to her visit to the emergency room and general low back pain for the previous three months. The report also notes the fact claimant stumbled on the previous day. Also included in the record was a form she filled out prior to her examination by Dr. Shybut on March 6, 1986. In response to a question as to whether her condition arose from ,an accident or injury, claimant circled the answer “No.”

Respondent presented a letter from Dr. Clohisy, who examined claimant at respondent’s request. Clohisy conducted only a general physical examination of claimant and did not review her CAT scan or X rays. In Clohisy’s opinion, there was no connection between claimant’s condition of ill-being and her accident. Based on the results of his tests, he observed the severity of her complaints was out of proportion to any objective findings. In contrast, Dr. Shybut was of the opinion there was a relationship between claimant’s low back condition and the accident, based solely on the verbal patient history claimant gave him of no prior back pain or injury prior to February 21, 1986.

The arbitrator awarded temporary total disability benefits. On review, the Commission reversed the arbitrator. Although claimant’s un-rebutted testimony established she suffered an accident arising out of and in the course of her employment on February 21, 1986, the Commission concluded claimant failed to establish a causal connection between her condition and that accident. In reaching its decision, the Commission relied on the emergency room report which showed a prior history of significant back pain and the medical questionnaire claimant answered before her first visit to Dr. Shybut on which she indicated no accident precipitated the condition. On review, the trial court affirmed the Commission.

Initially, claimant contends the Commission was without jurisdiction to modify the arbitrator’s opinion because it did not render its decision within the applicable time limit.

Claimant filed a petition for emergency hearing under section 19(b — 1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)). That section provides in pertinent part:

“The Commission shall adopt rules, regulations and procedures whereby the final decision of the Commission is filed not later than 90 days from the date the petition for review is filed but in no event later than 180 days from the date the petition for an emergency hearing is filed with the Industrial Commission.”

Sections 7020.80(4)(C) and (4)(D) of the Illinois Administrative Code provide:

“(C) *** Immediately after the Petition for Review has been filed it will be assigned to a Commissioner who will promptly schedule the case for oral argument before a panel of three Commissioners as provided by Section 19(e) of the Act at a time no less than 25 days nor more than 60 days after the filing of the Petition for Review.
(D) The Commission shall file its decision no more than 90 days after the filing of the Petition for Review, and not later than 180 days from the filing of the Petition under Section 19(b — 1), whichever is sooner.” 50 Ill. Adm. Code §§7020.804(C), 4(D), at 1436 (Supp. 1986).
The chronology present in this case is as follows:
October 14, 1987: section 19(b — 1) petition filed.
November 6 and 9,1987: arbitration hearing conducted.
January 12, 1988: petition for review filed by respondent.
March 16,1988: oral argument held.
March 18, 1988: predecision memorandum of Commission filed.
March 24, 1988: request for full written decision filed by claimant.
April 26, 1988: final decision of the Industrial Commission entered.

Under the applicable authority, the Commission’s decision was due to be filed no later than April 11, 1988. In its brief before this court, the Commission concedes that the written decision, filed on April 26, 1988, was entered 15 days beyond the time frame established by either the statute or the rule. The Commission notes, however, the pre-decision was issued within the time limit.

The issue is whether the time frame is mandatory, and therefore “jurisdictional,” or directory. If mandatory, then the Commission lost jurisdiction by failing to file the final decision within the applicable limit. If the deadline is directory only, the failure to adhere to the time limit does not deprive the Commission of jurisdiction. No cases have been called to our attention which discuss this issue in the context of the Commission. An examination of the existing precedent, however, leads to the conclusion the time frames are directory only and, therefore, the Commission did not lose jurisdiction to modify the arbitrator’s award.

Initially, we note, a substantial argument can be made the Commission did not violate its rule because it issued its predecision within the established time limit. Had claimant not made a request for a full written decision, the predecision would have become final 15 days after filing on April 2, 1987, well within the April 11 deadline.

Claimant nevertheless argues she is entitled under the Act to a full written decision, and because she filed that request some 18 days before the April 11 deadline, she argues the Commission could delay indefinitely the filing of a full written decision and, theoretically, the decision would never become final. While, as an abstract proposition that may be true, the Commission points out that had claimant prevailed before the Commission, she would have been entitled to additional interest from respondent for any period of delay occasioned by the filing of a tardy written decision. Moreover, claimant always has the remedy of mandamus to force the Commission to act. Shawgo v. Illinois Department of Children & Family Services (1989), 182 Ill. App. 3d 485, 538 N.E.2d 234.

Assuming, without deciding, the decision of the Commission is untimely, the weight of authority supports the Commission’s position the time limits are directory. As the court noted in Shawgo, there is case law to the effect an administrative agency occasionally loses jurisdiction at a preliminary stage of proceedings because of administrative delay, and this loss of jurisdiction creates a result favorable to a party adverse to the agency. (See McReynolds v. Civil Service Comm’n (1974), 18 Ill. App. 3d 1062, 311 N.E.2d 308; Jackson v. Civil Service Comm’n (1976), 41 Ill. App. 3d 87, 353 N.E.2d 331.) In those cited cases, the agency did not grant a hearing within the statutorily set period after a request was made by an employee whose employment had been terminated. In those cases, the court observed, the party obtaining the benefit was a party respondent to the proceedings and gained the benefit because the agency no longer had the power to impose a burden such as discharge from civil service employment upon the employee.

Proceedings before the Commission present an entirely different situation. In the first instance, the Commission is not an adverse party to the litigation. Its role is to adjudicate the rights and liabilities of the real parties to the case, the employer and the employee. Were the respective positions of the parties reversed and it had been an adverse decision of the arbitrator which claimant was appealing, if the Commission failed to abide by the time limit and lost jurisdiction to act, it would have prevented claimant from receiving any relief to which she was arguably entitled had the Commission decided to reverse the arbitrator. Claimant has presented no authority suggesting an arbitrator’s award must be reinstated simply because the Commission fails to abide by a deadline.

An analogous situation was presented in Shawgo, in which plaintiff appealed to the Department of Children and Family Services to expunge a finding he was a suspect in a child neglect or abuse case. The agency failed to provide him a hearing as required by the act. Noting that one of the policies of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1987, ch. 23, par. 2054) was to protect subjects from the detrimental effect of inaccurate reports, the appellate court concluded the legislature did not intend the deadlines to be mandatory because to do so would deprive wrongly charged individuals of the opportunity to expunge inaccurate records through mere dilatory conduct of the agency. By the same token another policy of the act was to protect children in this State. If mere agency inaction would require automatic expungement of department records, that policy would be frustrated. In Shawgo, the court concluded:

“The only cases called to our attention where a petitioner before an administrative agency has been held to be entitled to affirmative relief by the agency because of its failure to proceed with dispatch involve statutes which expressly provide for the granting of the relief upon the failure of the agency to act. For instance, section 40(a)(2) of the Environmental Protection Act states that a failure of the Environmental Protection Agency to act within a stated time on an application for a permit for a facility subject to pollution control operates as a granting of the permit. [Citations.] We see no indication here of a legislative intent that a ‘subject’ is to be entitled to expungement upon any failure to act by DCFS.” Shawgo, 182 Ill. App. 3d at 489, 538 N.E.2d at 236.

The same concerns voiced in Shawgo are present here. Neither the statute nor the rule provides for any affirmative relief upon the failure of the Commission to act within the specified time frames. Second, given the substantial caseload of the Commission, any ruling that the deadlines are mandatory could well deprive both employers and employees of the right to Commission review of decisions of the arbitrators through mere inaction, however legitimate or inadvertent. Finally, there is no evidence present on this record which suggests the Commission’s actions were intended to be dilatory or that claimant suffered any injury due to the 15-day delay in filing the Commission’s written decision. We conclude the Commission did not lose jurisdiction to act.

Claimant next contends the Commission’s determination she failed to establish a causal connection between her condition of ill-being and the accident is against the manifest weight of the evidence. We disagree. Although claimant testified she stumbled on the sidewalk, she suffered no apparent manifestation of injury. Although she reported stumbling to emergency room personnel, she also submitted a history of significant back pain for the three days just prior to her visit to the emergency room and general low back pain for the last three months. This was directly opposed to her testimony at arbitration that she suffered no back pain of any sort prior to the day she stumbled on the sidewalk. This coupled with her negative response to a question asking whether an accident caused her condition, completed five days after the stumble, led the Commission to conclude her condition of ill-being arose from a source independent of the “accident.”

It is the responsibility of the Commission to determine whether a causal relationship exists between claimant’s back problems and the accident. (Steiner v. Industrial Comm’n (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) In making that determination, it is within the province of the Commission to judge credibility, resolve conflicting medical testimony and draw reasonable inferences from the evidence. (Lambert v. Industrial Comm’n (1980), 79 Ill. 2d 243, 402 N.E.2d 617.) That a court might have drawn different inferences from the evidence is not relevant since a reviewing court will not disregard or reject permissible inferences from the evidence. (Steiner, 101 Ill. 2d 257, 461 N.E.2d 1363.) Based on the conflicting evidence presented by claimant, the Commission’s decision the claimant’s accident was not causally related to her back condition is not contrary to the manifest weight. Accordingly, its decision denying temporary total disability benefits and medical bills was proper.

Finally, respondent contends claimant failed to establish an accident occurred. However, respondent did not file a cross-appeal raising as an issue that adverse finding. Accordingly, the issue is not properly before us. Ruff v. Industrial Comm’n (1986), 149 Ill. App. 3d 73, 500 N.E.2d 553.

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

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and LEWIS, JJ., concur.


author: PRESIDING JUSTICE DiVITO

text:
    MYRON RATCLIFFE et al., Indiv. and as Trustees of the Brooks McCormick, Jr., Trust, Plaintiffs-Appellants, v. INTERNATIONAL SURPLUS LINES INSURANCE COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0739
    Opinion filed January 16, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago (Max Wildman, Jerald P. Esrick, and Cal R. Burnton, of counsel), for appellants.
    Schaefner & Rosenwein, of Chicago (Thomas D. Rosenwein and David L. Applegate, of counsel), for appellees International Surplus Lines Insurance Company and International Insurance Company.
    Lord, Bissell & Brook, of Chicago (Don W. Fowler, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee Johnson & Higgins of Illinois, Inc.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court;

Plaintiffs brought this action seeking a declaration of coverage under two insurance policies, a trustees errors and omissions policy (the Trustees policy) underwritten by defendant International Surplus Lines Insurance Company (ISLIC), and a directors and officers liability and company reimbursement liability policy (the D & 0 policy) underwritten by defendant International Insurance Company (International), both secured by the same broker, defendant Johnson & Higgins of Illinois, Inc. (Johnson & Higgins). Plaintiffs sought reimbursement of all expenses incurred in the successful defense of three underlying suits involving the construction of a residence by plaintiff Brooks McCormick, Jr. (Brooks), and a declaration of indemnification for any future losses relating to those suits. ISLIC raised the affirmative defense that plaintiffs misrepresented certain facts in the Trustees policy application. Following a bench trial limited to proof of ISLIC’s affirmative defense, the trial court found no coverage under the Trustees policy on the ground that plaintiffs failed to disclose in the policy application certain disputes between Brooks and his general contractor. Cross-motions for summary judgment on the D & 0 policy were then filed, and the court granted International’s motion, ruling that plaintiffs were not covered under the D & 0 policy because they were sued as trustees and agents of trustees, not as directors and officers of Miami Corporation.

Plaintiffs now appeal, raising as issues (1) whether the trial court applied the incorrect standard in finding no coverage under the Trustees policy; (2) whether the trial court erred in finding that nondisclosure of the Brooks construction dispute was a material misrepresentation in the policy application; and (3) whether the trial court erred in finding that coverage under the D & 0 policy is limited to the acts of officers of Miami Corporation committed “solely” in their official capacities. We hold that the trial court properly found no coverage under the Trustees policy, but erred in denying coverage under the D & 0 policy.

Plaintiff Miami Corporation is a privately held corporation whose shareholders are family members and family trusts which have received shares from family members. Through several mechanisms, the Miami Corporation manages the assets of the Deering and McCormick families. One such mechanism is the establishment of individual trusts, with a family member and the current president of Miami Corporation typically selected by the beneficiary as co-trustees. Another is the granting by family members of powers of attorney to the current president of Miami Corporation. Miami Corporation officers, including the president of Miami Corporation, service the trusts and trustees and are compensated only by Miami Corporation.

An individual trust in favor of Brooks (the Brooks Trust) was created in 1964. Brooks selected his father, Brooks McCormick, and Myron Ratcliffe, then president of the Miami Corporation, as co-trustees, and granted a power of attorney to Ratcliffe. When Ratcliffe resigned in 1978, Brooks granted a power of attorney to Charles E. Schroeder, the new president of Miami Corporation, and selected him to succeed Ratcliffe as co-trustee.

In 1976, Brooks decided to build a house, which he placed into the Brooks Trust as an asset, and began work on the design and construction. He initially retained the architectural firm of Otis Associates (Otis) to assist in the design, signing a contract with that firm on July 20, 1977. He selected Ragnar Benson, Inc. (Ragnar Benson), as the general contractor for construction, entering into a contract on August 19, 1977, for the completion of the “shell” of the house at a price of $398,000. Otis estimated the final cost of the house to be $1.5 million. The total cost ultimately exceeded $1.6 million, approximately half of which was paid by Brooks personally, and half from funds in the Brooks Trust.

In the fall of 1977, Brooks fired and considered suing Otis. The trustees persuaded Brooks not to sue Otis and to complete construction of the house. Brooks complied, paying Otis in full for its services, and continuing with the construction, personally assuming the responsibilities of the architect. In early 1978, Brooks and Ragnar Benson disputed amounts billed by Ragnar Benson exceeding the contract price by $116,606. Ragnar Benson maintained that the excess was due to on-site oral change orders given by Brooks. Brooks paid only the amount due on the contract price, and in December 1978, filed a formal complaint, drafted by Thomas S. Oehring of the Miami Corporation, against Otis and Ragnar Benson in the consumer fraud division of the Illinois Attorney General’s office. Brooks, however, wished to file a civil suit against Ragnar Benson and eventually withdrew the complaint.

The trustees advised Brooks to first complete construction of his house and then resolve his dispute with Ragnar Benson. John Anderson, an attorney who assisted Brooks with the Otis and Ragnar Benson contracts, told Brooks and the trustees that litigation between Brooks and Ragnar Benson would be “lengthy, messy, and expensive.” Brooks nevertheless instructed the trustees not to pay Ragnar Benson the amount owed in excess of the contract price and asked the trustees to investigate Ragnar Benson’s billing statements. The trustees sent a Miami Corporation accountant to review Ragnar Benson’s billing records and retained an accounting firm to audit the records. Based on this investigation, the trustees recommended that Brooks make a “compromise” payment of $110,000. Brooks refused, and the trustees then obtained an opinion from McDermott, Will & Emery that as trustees, they had the power and possibly the obligation to make the compromise payment. The trustees notified Brooks and, over Brooks’ objection, paid Ragnar Benson $110,000 on December 20, 1978.

After this payment by the trustee, Brooks retained a series of attorneys to confer with the trustees throughout the construction. In December 1978, Brooks’ attorney requested that the trustees not make any additional payments to Ragnar Benson. In January 1979, Brooks’ attorney demanded that Miami Corporation employees not be allowed to enter the residence, and Brooks requested that the trustees provide him with a breakdown of the charges paid to Ragnar Benson, threatening to subpoena the documents, if necessary. On March 13, 1979, Brooks’ attorney wrote the trustees, indicating that he had reviewed the construction documents and believed that Brooks had a justifiable complaint “not only against Ragnar Benson Company, but [also] in connection with the unauthorized disbursement to Ragnar Benson[.]” In June 1979, Brooks’ attorney requested that the trustees produce certain documents, stating that a “failure to provide [the documents] will cause [Brooks’ attorney] to seek a remedy in the courts.” The trustees complied with Brooks’ document requests. Finally, on August 14, 1979, Brooks revoked Schroeder’s power of attorney, but reinstated it shortly thereafter.

In February 1980, Brooks told the trustees that he had decided not to live in the house and instructed them to put the house up for sale. The house was sold at a fraction of the construction cost; Brooks exercised his right to withdraw two-thirds of his trust assets; and, effective December 31, 1980, the trustees resigned and were succeeded by the Northern Trust Company.

On January 9, 1981, Brooks filed a complaint for an accounting and other relief against Schroeder, Ratcliffe, Brooks McCormick, Oehring, and Fred Hoppe. On August 6, 1981, motions to dismiss were granted, and on September 3, 1981, Brooks filed an amended complaint adding Otis and Ragnar Benson as parties and dropping Hoppe. The counts against the plaintiffs to this action were dismissed, and the counts against Otis and Ragnar Benson were transferred to the law division. Brooks appealed from the dismissal order, and this court affirmed dismissal of Ratcliffe as a party based on a written release, and otherwise affirmed the dismissal order on all counts except two, which were reversed and remanded. (See McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 455 N.E.2d 103.) On remand, the trial court entered summary judgment in favor of Oehring and Miami Corporation and, following a trial, entered judgment in favor of all defendants. On appeal, the judgment was affirmed in part and reversed in part. (See McCormick v. McCormick (1988), 180 Ill. App. 3d 184, 536 N.E.2d 419.) As of November 30, 1986, fees and costs incurred by plaintiffs in the McCormick litigation were $708,025.99.

On August 21, 1981, the Northern Trust Company filed suit against Miami Corporation and Oehring, seeking recovery of $32,000 in dividends retained by Miami Corporation from Brooks’ trust to pay outstanding construction debts. This dispute was resolved pursuant to an agreement between the parties. The plaintiffs incurred $12,650.09 in fees and costs relating to the Northern Trust litigation.

In 1981, Dettmers, a construction company, sued Miami Corporation, Oehring, and Brooks for amounts owing for the purchase of window shutters. Brooks settled with Dettmers for $27,000, and Miami Corporation and Oehring won summary judgment. Plaintiffs incurred $28,751.24 in fees and costs in this litigation.

In 1984, plaintiffs commenced the present action, seeking coverage under the Trustees policy and the D & O policy for costs incurred in defending against the above suits. Plaintiffs first sought to procure insurance coverage of the type provided in the Trustees policy in 1975, through its insurance broker, defendant Johnson & Higgins. At that time, no standard policy was available for individuals and entities such as plaintiffs. In the fall of 1978, Johnson & Higgins first approached ISLIC and, at ISLIC’s request, completed an application form in November 1978, disclosing financial and other information about Miami Corporation, certain family members, and the trusts. Specifically, ISLIC was provided with detailed descriptions of the operations of the trusts, the responsibilities of the trustees, and the role of Miami Corporation. In this initial application, plaintiffs indicated that they were not aware of any prior claims or of any circumstances which might give rise to a claim against any of the trustees or trusts.

On April 13, 1979, after several months of negotiations, ISLIC agreed to issue a policy, but requested a written reaffirmation of the answers given in the November 1978 application. Schroeder complied with the request on April 20, 1979. In August 1979, a final draft of the proposed policy was ready and ISLIC once again requested that the trustees update their application, but this time by completing another application similar to the November 1978 application. On August 15, 1979, Schroeder completed the second application, indicating that no claims had ever been made against any present or past trustees and that the trustees were not aware of “any circumstances which might give rise to a claim being made against the trust or trustees.” The policy was then issued covering the period August 16, 1979 through August 16, 1980, and was renewed on a yearly basis.

The D & 0 policy, procured by plaintiffs in 1975 from defendant International, provides coverage to individual directors and officers for losses incurred by them from any claim made against them for a “Wrongful Act” committed in their “individual or collective capacities as Directors and Officers.” The policy also provides for reimbursement to Miami Corporation for amounts paid to directors and officers for losses arising from claims made against them for a “Wrongful Act” committed “while acting in their individual or collective capacity.”

Plaintiffs gave timely notice to ISLIC and International of the underlying suits, but ISLIC and International each denied coverage under their respective policies. In response to the complaint for declaratory relief, ISLIC asserted 16 different reasons for noncoverage under the Trustees policy and also asserted the affirmative defense of material misrepresentation in the application for the policy by reason of the trustees’ failure to disclose the Brooks construction dispute.

On December 12, 1986, a bench trial commenced with proof limited to ISLIC’s affirmative defense. Four witnesses, Oehring, Schroeder, Brooks, and Martin Perry, the underwriter of the Trustees policy, testified at that trial. On January 12, 1987, the trial court entered judgment in favor of ISLIC, reasoning that “reasonable minded trustees” should have disclosed the construction dispute. The parties then filed cross-motions for summary judgment on the issue of coverage under the D & 0 policy. On February 1, 1988, the trial court granted International’s motion, accepting International’s argument that the policy was limited to claims made against plaintiffs for acts performed “solely” in their capacities as directors and officers of Miami Corporation, which did not include duties performed as trustees or agents of trustees.

I

Plaintiffs maintain first that the trial court erroneously applied an objective standard in determining whether a misrepresentation occurred. Plaintiffs argue that although an objective “reasonable trustee” standard applies in determining whether a misrepresentation was material, the trial court should have applied a subjective standard in determining whether a misrepresentation occurred in the first instance. Under a subjective test, plaintiffs contend, the proper focus is whether Schroeder’s responses to the questions on the application were false and known by Schroeder to be false. Plaintiffs argue that Schroeder did not know the construction dispute might have given rise to a claim against the trustees or a trust, so that he truthfully answered the application questions and no misrepresentation occurred. Finally, plaintiffs argue that the relevant questions on the application were ambiguous and should have been construed against the insurer as not requiring disclosure of the construction dispute.

Defendants do not argue that an objective standard applies in determining whether a misrepresentation occurred, but rather that, contrary to plaintiffs’ assertion, the trial court focused on the evidence showing Schroeder had knowledge of circumstances which might have given rise to a claim against the trustees or a trust. Defendants contend that the trial court was not applying an incorrect legal standard when it stated that a “reasonable minded trustee” should have disclosed the construction dispute, but rather was assessing the credibility of the witnesses “by asking if someone else of the same faculties, intelligence and background would perceive or act in the same manner.”

Under the Insurance Code, no misrepresentation in a written insurance policy application “shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.” (Ill. Rev. Stat. 1987, ch. 73, par. 766.) A “misrepresentation” in an application for insurance is a statement of something as a fact which is untrue and affects the risk undertaken by the insurer. (Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 60 N.E.2d 207; Cohen v. Washington National Insurance Co. (1988), 175 Ill. App. 3d 517, 520, 529 N.E.2d 1065.) A material misrepresentation will avoid the contract even though made through mistake or good faith. (Campbell v. Prudential Insurance Co. (1958), 15 Ill. 2d 308, 155 N.E.2d 9; Cohen v. Washington National Insurance Co., 175 Ill. App. 3d at 520.) In other words, it is unnecessary for the insurer to prove that a misrepresentation was made with the intent to deceive if it was material to the risk assumed. National Boulevard Bank v. Georgetown Life Insurance Co. (1984), 129 Ill. App. 3d 73, 472 N.E.2d 80.

In this case, plaintiffs argue that no misrepresentation occurred because Schroeder, who completed the policy application, honestly believed that there were no circumstances which might give rise to a claim against the trustees or a trust. We do not believe, however, that the trial court was required to consider Schroeder’s subjective belief. On the contrary, we believe that the trial court correctly concluded that a misrepresentation occurred in this case because of the facts known to Schroeder at the time of the policy application.

The only case we have found supporting plaintiffs’ argument that a subjective standard applies is Citizens Bank v. Western Employers Insurance Co. (8th Cir. 1989), 865 F.2d 964. In that case, the plaintiffs sought coverage under a trustees errors and omissions policy and the insurer raised the defense of misrepresentation in the policy application. The applicant had responded in the negative to a question on the policy application asking if he was “aware of any fact, circumstance or situation *** which he has reason to believe might result in any future claim which would fall within the scope of the proposed insurance^]” (865 F.2d at 965.) The plaintiffs prevailed in the district court, and the Eighth Circuit affirmed, noting that the question contained “a judgmental component and implicitly acknowledge^] the lack of absolute certainty in the answer. *** [W]hen a question calls for an answer based on interpretation of known facts and circumstances, as distinguished from a simple disclosure of historical facts, the response is measured under Arkansas law by whether the individual answering the question was justified in the belief expressed.” 865 F.2d at 966.

Although we have found no Illinois cases on point, one Federal court, applying Illinois law, has squarely rejected the Citizens Bank analysis. In Evanston Insurance Co. v. Security Assurance Co. (N.D. Ill. 1989), 715 F. Supp. 1405, the court considered an errors and omissions policy application question asking whether the applicant knows of “[any] fact, circumstance or situation indicating the probability of a claim against which indemnification is or would be afforded by the proposed insurance.” (715 F. Supp. at 1413.) The court concluded that the question “calls for no judgmental or subjective evaluation, but in traditional objective language requires the disclosure of any facts indicating the probability of a covered claim.” 715 F. Supp. at 1414.

We agree with this result and conclude that the question in the policy application in this case likewise required the disclosure of any facts which, objectively considered, might have given rise to a claim, regardless of the applicant’s subjective belief. We note that this objective standard is consistent with the standard applicable to questions of materiality (see Cohen v. Washington National Insurance Co., 175 Ill. App. 3d at 520), and with the principle that a material misrepresentation will avoid the contract even though made through mistake or good faith (see Cohen v. Washington National Insurance Co., 175 Ill. App. 3d at 520).

Great West Steel Industries, Ltd. v. Northbrook Insurance Co. (1985), 138 Ill. App. 3d 84, 484 N.E.2d 847, relied on by plaintiffs, does not compel a contrary result. In that case, the court did not apply a subjective standard, but concluded that the insured had no knowledge of a design defect and so had no reason to refer to a roof collapse in response to an application question pertaining to errors or omissions of design, as opposed to construction.

Applying an objective standard here, we note that Schroeder had knowledge of Brooks’ dispute with Otis and Ragnar Benson in September 1978 and was aware that Brooks considered suing Ragnar Benson in November 1978; that outside counsel had been consulted and advised the trustees that construction litigation could result in claims against the trustees; that a partial payment to Ragnar Benson was made by the trustees in December 1978 against Brooks’ wishes; that Brooks’ relationship with the trustees had deteriorated and Brooks hired lawyers to represent him in discussions with the trustees; that Brooks threatened court action in January 1979 if not supplied with certain documents; that Brooks’ lawyer had written the trustees in March 1979 regarding the “improper disbursements” to Ragnar Benson; that Brooks threatened legal action in June 1979 if the trustees did not provide him with a list of his assets; and that Brooks revoked Schroeder’s power of attorney on August 14, 1979. Under an objective standard, we believe that the trial court properly concluded that the above facts were circumstances known to the trustees which might have given rise to a claim against them or a trust.

Even if we were to apply a subjective standard, we would have difficulty accepting plaintiffs’ assertion that they honestly did not believe the Brooks dispute might have resulted in a claim against the trustees or a trust. The trial court would not have been required to accept the trustees’ testimony as true (see Stiefel v. Illinois Union Insurance Co. (1983), 116 Ill. App. 3d 352, 452 N.E.2d 73), and in light of the undisputed facts known to the trustees at the time the policy application was completed, we would find ample support for the conclusion that a misrepresentation occurred on the ground that the trustees did in fact believe that the Brooks dispute might have given rise to a claim.

Finally, there is no merit to plaintiffs’ contention that the questions on the policy application were ambiguous and should, accordingly, be construed against defendants. Although knowledge of “circumstances which might give rise to a claim against the trustees or a trust” is a question of fact that might be resolved differently by different triers of fact, “that circumstance does not make the contractual provision itself ambiguous.” See Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatkis (5th Cir. 1986), 799 F.2d 218, 224.

II

Plaintiffs maintain next that there was insufficient evidence presented at trial establishing that nondisclosure of the construction dispute was a material misrepresentation. Plaintiffs argue that the testimony of the insurance underwriter was self-serving, conclusory, and contradicted by ISLIC’s “full and complete understanding of the unusual insured with which it was presented” and ISLIC’s subsequent conduct in renewing the policy and actually lowering the premiums even after it had knowledge of the construction litigation. We disagree.

The materiality of a misrepresentation in an insurance policy application is a question for the trier of fact. (Mooney v. Underwriters at Lloyd’s, London (1966), 33 Ill. 2d 566, 213 N.E.2d 283.) Materiality is determined by examining whether the misrepresentation would cause reasonably careful and intelligent persons to regard the fact as stated to substantially increase the chances of the event insured against, so as to cause a rejection of the application. (Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 577, 60 N.E.2d 207; Cohen v. Washington National Insurance Co. (1988), 175 Ill. App. 3d 517, 520, 529 N.E.2d 1065.) Materiality may be established by the testimony of the insurer’s underwriter. (Alperin v. National Home Life Assurance Co. (1975), 32 Ill. App. 3d 261, 263, 336 N.E.2d 365.) The trier of fact’s judgment as to materiality should not be set aside on appeal if there is any evidence which, standing alone, tends to support the judgment. Mooney v. Underwriters at Lloyd’s, London, 33 Ill. 2d at 569.

In this case, ISLIC’s underwriter testified that had the construction dispute been disclosed, he would have at least excluded claims arising from that dispute. The trial court considered the underwriter’s testimony, as well as what reasonably careful and intelligent persons would believe, and concluded that the nondisclosure of the construction dispute was a material misrepresentation. That conclusion is supported by the underwriter’s testimony, which was properly considered by the trial court, and by other evidence that the construction dispute involved a significant risk of costly litigation against the trustees. Indeed, plaintiffs’ efforts in this case to recover large sums of money from the insurance company following a multiplicity of suits arising from the construction dispute belie their contention that nondisclosure of the dispute was immaterial.

III

Finally, plaintiffs maintain that the trial court improperly granted International’s motion for summary judgment on the count seeking coverage under the D & 0 policy. Plaintiffs first maintain that the trial court misconstrued the definition of “Wrongful Act” in the policy as limiting coverage to acts committed by an officer “solely” in an official capacity, thereby excluding coverage for acts committed in a different capacity as well. Plaintiffs then argue that the acts which gave rise to the underlying suits are covered either because certain claims against Oehring, Schroeder, Hoppe, and Ratcliffe (henceforth the individual plaintiffs) arose out of their duties as officers, even though the acts complained of were also performed in their capacities as trustees or agents of trustees, or because certain other claims were directed against the individual plaintiffs only in their official capacity. Plaintiffs do not argue that coverage is available for claims which arose out of acts performed by the individual plaintiffs in their capacities as trustees or agents of trustees which did not also arise out of acts performed as officers of Miami Corporation. Rather, plaintiffs contend that coverage is available because even though the individual plaintiffs acted as trustees or agents of trustees, they were also acting pursuant to their duties as officers of Miami Corporation, a corporation established for the purpose of servicing the trusts.

Defendant International maintains that the trial court neither misinterpreted the definition of “Wrongful Act,” nor concluded that coverage is available only for acts committed “solely” in the capacity of an officer. The trial court, International argues, concluded that coverage is provided for acts committed in an official capacity, regardless of other capacities in which the officer may have acted, but denied coverage to plaintiffs because they were not sued in their official capacities. International maintains that the trial court reached the correct conclusion, relying on several cases from other jurisdictions holding that acts committed as trustees or agents are not covered under professional liability policies, and that coverage in any event turns on the act committed, not the title of the party who committed the act.

We agree with plaintiffs that coverage is not limited to acts committed by the individual plaintiffs “solely” in their capacities as officers or directors. “Wrongful Act” is defined in the D & 0 policy as

“any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty by the Directors or Officers while acting in their individual or collective capacities, or any matter, not excluded by the terms and conditions of the policy, claimed against them solely by reason of their being Directors or Officers of the Company.”

The disjunctive in the definition plainly expands the scope of coverage and does not limit coverage to acts committed “solely” in an official capacity. The second clause does not limit coverage, so that acts committed in an official capacity are covered even if they are not “solely” official acts, but also acts committed in a different capacity, such as that of trustee or trustee’s agent.

International’s argument, therefore, rests on finding that no claims were directed against the individual plaintiffs in their official capacities and that the individual plaintiffs’ duties as trustees or agents of trustees were separate and distinct from their duties as officers of Miami Corporation. Although the trial court concluded that no claims were directed against the individual plaintiffs in their official capacities, we do not believe that conclusion is supported by the record. Oehring, for example, served as secretary and assistant treasurer of Miami Corporation and never as a trustee to any trust. It also appears that several counts in the McCormick litigation were directed against Schroeder as an officer of Miami Corporation. Finally, a claim was directed against Ratcliffe for breach of his duties as attorney in fact, separate from his duties as trustee.

The trial court apparently made no findings with respect to whether the individual plaintiff’s official duties included acts committed as trustees or agents of trustees. It does not follow, as International suggests, that because the individual plaintiffs were charged in the underlying suits with breaches of their duties as trustees, they were not acting pursuant to their duties as corporate officers for purposes of coverage under the D & 0 policy. It is undisputed, for example, that one of the primary duties of the president of Miami Corporation is to act as a co-trustee of the individual trusts.

North River Insurance Co. v. Endicott (1986), 151 Mich. App. 707, 391 N.W.2d 454, relied on by International, is inapposite. In that case, the insured was denied coverage under his accountant’s malpractice policy for acts committed as a trustee plainly separate from his professional duties. Here, by contrast, the individual plaintiffs’ duties as corporate officers are not easily, if at all, distinguishable from their duties as trustees or agents of trustees. Indeed, the unique purpose of Miami Corporation serves to distinguish each case relied on by International, where coverage was not afforded under professional liability policies for acts committed as an agent or trustee.

Accordingly, we conclude that this case should be remanded for a determination of which claims directed against the individual plaintiffs are covered under the D & 0 policy, either because they were acts of trustees or agents of trustees, yet inseparable from the duties of the officers, or because they were directed against the individual plaintiffs only in their official capacities.

For the foregoing reasons, we affirm the judgment of the circuit court in favor of defendants on the count alleging coverage under the Trustees policy and vacate the order granting summary judgment in favor of defendants on the count alleging coverage under the D & 0 policy.

Affirmed in part; vacated in part, and remanded.

HARTMAN and SCARIANO, JJ., concur.