author: JUSTICE SPITZ

text:
    COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. WAGNER’S BULLDOZING et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0615
    Opinion filed February 9, 1989.
    Mike McElvain, of Law Office of Mike McElvain, of Bloomington, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria (Gary D. Nelson and Bradford B. Ingram, of counsel), for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Country Mutual Insurance Company filed a declaratory judgment complaint against defendants, Wagner’s Bulldozing and Ruth Wagner, widow of Wayne Wagner, seeking a determination it had no responsibility to defend Wagner’s Bulldozing or pay any benefits to Ruth Wagner under a standard workers’ compensation insurance policy issued to Wagner’s Bulldozing. Judgment was entered in favor of plaintiff and defendants appeal. At issue is an interpretation of several amendments to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), which became effective in 1983 and whether, by reason of these amendments, Wayne Wagner was entitled to coverage under the workers’ compensation policy issued by plaintiff.

Prior to 1983 sole proprietors and partners could not elect to be covered by workers’ compensation insurance in Illinois. Public Act 83 — 190, effective August 31, 1983 (1983 Ill. Laws 1693), amended the compensation act to permit such coverage under certain conditions. Two types of employments are distinguished under the compensation act; those for which the employer may elect to provide coverage and those which by their very nature are defined as extrahazardous, making coverage automatic and mandatory without exception. The 1983 amendments apply to both classes of employments. Section 1(b)(3) of the Act states:

“Every sole proprietor and every partner of a business may elect to be covered by this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(b)(3).)

The methods by which this election may take place are set forth in section 2 of the Act. However, section 2 is specifically restricted to those employers not covered by section 3 of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.2, 138.3).

Section 3 is directed exclusively to extrahazardous occupations and states in pertinent part:

“The provisions of this Act hereinafter following shall apply automatically and without election to *** employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:
* * *
(2) Construction, excavating or electrical work.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.3(2).)

The amendment relating to sole proprietors in extrahazardous employments is contained in section 3(20) and states:

“Nothing contained in this Act shall be construed to apply to any sole proprietor or partner who elects not to provide and pay compensation for accidental injuries sustained by himself, arising out of and in the course of the employment according to the provisions of this Act.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 138.3(20).

Because decedent’s occupation, excavation, was specifically defined as extrahazardous, he purchased compensation insurance in 1978 to cover the employees he might hire on an excavation project. No change in the basic coverage was ever expressly sought after the initial policy was purchased. The policy permitted plaintiff to audit decedent’s records after the expiration of the policy period to determine whether additional premiums were due if the wages actually paid to additional employees exceeded the amount set forth in the declaration of the policy. Decedent renewed the policy annually, with the last renewal occurring on March 1, 1984, by mail from decedent to the home office of Country Mutual. Decedent died June 12, 1984, from a heart attack and his widow filed a claim for benefits with the Industrial Commission.

The parties agree that after the adoption of Public Act 83 — 190 in August 1983, Country Mutual began informing its agents, first by notice dated January 27, 1984, that sole proprietors could receive coverage under the compensation act. Certain forms were later produced, and on April 20, 1984, Country Mutual again updated its agents with respect to this change in the legislation. A notice to policyholders at approximately the same time made reference to the new potential coverage. It is largely undisputed decedent did not receive a copy of this notice as it was prepared after his policy was renewed on March 1, 1984, some six months after the effective date of the amendments.

Defendants contend the 1983 amendments set up two distinct methods for permitting sole proprietors the voluntary option of electing coverage under the Act. For those employments which are not extrahazardous, the sole proprietor is permitted under section 1 of the Act to make an election to obtain coverage under any of the various ways enumerated in section 2 of the Act. For those occupations which are extrahazardous and automatically covered, the sole proprietor must elect to opt out of the coverage under section 3 of the Act.

In contrast, plaintiff, relying solely on section 1 of the Act, argues no sole proprietor is automatically covered by virtue of the amendments and every sole proprietor who wishes to be covered must make an affirmative election to that effect. Plaintiff points to a comment during the legislative debate on the amendments in which a sponsor of the bill stated:

“It’s important to emphasis [sic] this is permissive legislation. The persons it applies to have the option of covering themselves. It’s not mandatory.” (83d 111. Gen. Assem., House Proceedings, June 17, 1983, at 91 (statements of Representative Pederson).)

While this comment lends support to plaintiff’s argument, the specific statutory language does not.

If a sole proprietor of an extrahazardous employment was not automatically covered by virtue of section 3 of the Act, there is no rational reason why he would need to make an affirmative election not to be covered under the express terms of section 3(20) of the Act. He would simply do nothing if he did not want coverage. Plaintiff’s interpretation of the amendment to section 1 of the Act would render section 3(20) meaningless.

The parties make much of whether an election of any sort occurred in this case. Plaintiff argues the evidence tends to suggest claimant did not desire coverage under the Act because he purchased health and life insurance for himself. This argument is not persuasive since prior to 1983 this was claimant’s only option given his status as a sole proprietor. If anything, the purchase of alternative coverage indicates decedent intended to insure himself in the event of injury. Decedent was not aware of the statutory amendment and the additional option now afforded him. It is not reasonable to suggest an election has been made when a person does not know he has a choice to make.

Plaintiff’s further argument that coverage for decedent was never contemplated by any of the parties and decedent paid no premium for coverage for himself is also unpersuasive. In the first instance, decedent was unaware of the revision in the law while plaintiff was aware, or should have been. Second, the policy does not require that the employer specifically identify particular employees for which coverage is sought. Rather, the contract contemplates an after-the-fact determination of the extent of the risk by an audit of decedent’s records of wages paid.

The question remains, however, whether decedent was covered under the insurance policy issued in March 1984 after the effective date of the statutory amendment. The policy of insurance issued by plaintiff contains the following provisions:

“[The Company agrees with the insured to] pay promptly when due all compensation and other benefits required of the INSURED by the Workers’ Compensation Law.
* * *
The CÓMPANY shall be directly and primarily liable to any person entitled to the benefits of the Workers’ Compensation Law under this policy.
* * *
All of the provisions of the Workers’ Compensation Law shall be and remain a part of this policy as fully and completely as if written herein, so far as they apply to compensation and other benefits provided by this policy and to special taxes, payments into security or other special funds, and assessments required of or levied against compensation insurance carriers under such law.
* * *
Terms of this policy which are in conflict with the Workers’ Compensation Law are hereby amended to conform to such law.”

All contracts are presumed to have been executed in light of existing law. (Smiley v. Estate of Toney (1968), 100 Ill. App. 2d 271, 241 N.E.2d 116.) It is also clearly the law in this State that a contract of annually renewable insurance forms a new contract at each renewal for the purpose of incorporating into the contract the statutory provisions enacted after the creation of the original contract relationship. (Thieme v. Union Labor Life Insurance Co. (1956), 12 Ill. App. 2d 110, 138 N.E.2d 857.) As is stated in Appleman's treatise on insurance:

“As the business of insurance is subject to legislative regulation, an insurer cannot complain of valid statutes in existence and governing its contract at the time it was made. The statutory law in force and effect at the time of the issuance of a policy becomes a part of the contract as though expressly written therein, and a policy must be considered to contain those requirements.
* * *
*** Statutes subsequently enacted ordinarily do not affect contractual rights, *** however, where an existing policy is renewed, although the results vary, the better rule is to regard the statute as applicable to the extended contract.” 12 J. Appleman, Insurance Law & Practice §7041, at 166-76 (1981).

In this case, plaintiff was aware of the statutory amendment prior to renewal of the policy in 1984. Decedent was not. By virtue of the extrahazardous nature of his occupation, decedent was automatically covered unless he affirmatively elected to opt out of coverage under the Act. Because he was unaware of the amendment and option it provided him, decedent made no such election. Since the policy issued by plaintiff specifically states all provisions of the compensation law are applicable and the carrier agreed to compensate all employees covered by the law, by virtue of decedent’s automatic coverage under section 3 of the Act, the contract of insurance issued by plaintiff covered decedent as a matter of law. Since the presumption is that all contracts have been executed in light of existing law and the plaintiff knew of the amendment six months before issuing the policy, plaintiff has not overcome the presumption.

Based on the foregoing, we conclude decedent was covered, as a matter of law, by the contract of insurance issued by plaintiff to Wagner’s Bulldozing. Accordingly, the judgment of the McLean County circuit court is reversed.

Reversed.

McCULLOUGH, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    SANDRA CHADWICK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Baldwin Associates, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—88—0116WC
    Opinion filed February 9, 1989.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellant.
    Robert L. Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner’s decedent, a 39-year-old pipe fitter, was working on a scaffold or platform 70 to 75 feet in the air as part of a crew installing downspouting in the Clinton Nuclear Power Plant when he fell to his death. At the time, the crew was making its way off the scaffold to a temporary stairway. The arbitrator denied a claim for benefits because, at the time of the fall, decedent was in direct violation of a specific safety rule requiring the use of safety belts which, in the words of the arbitrator, constituted “an unreasonable and unusual risk totally unnecessary to the incidents of his employment.” The Industrial Commission (Commission) affirmed the arbitrator and the circuit court confirmed the Commission.

Petitioner concedes the evidence clearly demonstrates decedent was not tethered to the lifeline installed on the scaffold at the time of the fall. There was also testimony from co-workers tending to show the workmen failed to tether themselves to the lifeline because it was “inconvenient” when moving around ceiling rafters or beams which crossed the scaffold at various points. There was also substantial evidence workers, including decedent, attended a safety meeting one or two days prior to the accident at which they were specifically told to remain tethered to the lifeline at all times. Finally, there was evidence presented by respondent showing a worker could walk the entire length of the platform and could perform all work without ever untethering from the lifeline.

The issue in this case is whether the knowing violation of a safety rule which causes injury removes an employee from the scope of his employment so that injuries suffered as a result thereof do not arise out of and in the course of his employment.

The rule in such cases was set forth by the supreme court in the early case of Imperial Brass Manufacturing Co. v. Industrial Comm’n (1922), 306 Ill. 11, 13, 137 N.E. 411, 411-12, quoting Republic Iron & Steel Co. v. Industrial Comm’n (1922), 302 Ill. 401, 406, 134 N.E. 754, 755-56:

“ ‘Where the violation of a rule or order of the employer takes the employee entirely out of the sphere of his employment and he is injured while violating such rule or order it cannot be then said that the accident arose out of the employment, and in such a case no compensation can be recovered. If, however, in violating such a rule or order the employee does not put himself out of the sphere of his employment, so that it may be said he is not acting in the course of it, he is only guilty of negligence in violating such rule or order and recovery is not thereby barred. [Citation.] *** [I]t does not matter in the slightest degree how many orders the employee disobeys or how bad his conduct may have been, if he was still acting in this sphere of his employment and in the course of it the accident arose out of it.’ ”

The supreme court has also stated the rule is difficult to apply because the difference between violating a work rule which restricts this sphere of employment and performance of precisely the task for which the employee is engaged, albeit it in a manner forbidden by the employer, is, in many cases, a difference only of degree. If the employee is attempting to do the work he is employed to do but merely violating a rule as to the manner of doing it compensation will be allowed. Heyman Distributing Co. v. Industrial Comm’n (1941), 376 Ill. 90, 32 N.E.2d 894.

In Imperial Brass, a janitor inhaled fumes from sulfuric acid while cleaning a urinal which it was his duty to clean resulting in death. There was evidence the employee was forbidden to use sulfuric acid. The supreme court upheld compensation for the death on the basis the act of cleaning the urinal was in the course of decedent’s employment. As the supreme court succinctly stated: “It was what he was hired to do.” Imperial Brass, 306 Ill. at 12-13,137 N.E. at 411.

In this case, decedent was performing the duties for which he was hired. He was not engaged in any work activity which was unauthorized by the respondent. He was not in a place where he was forbidden to be. We find respondent’s contention the failure to use the lifeline constituted “gross misconduct” to be unavailing. As the court in Imperial Brass indicated, it does not matter “how bad his conduct may have been.” If decedent was acting in the sphere of his employment and in the course of it the accident arose, the injury is compensable.

We note, parenthetically, a number of States have enacted specific statutes which address the issue of employee violations of safety rules. In some States, compensation is completely denied for a “willful failure or refusal to use a safety appliance.” (See Ga. Code Ann. §114 — 105 (Harrison 1983); La. Rev. Stat. Ann. §23:1081 (West 1985).) Other States, in contrast, merely reduce the amount of compensation based on the violation. (Compare Wis. Stat. Ann. §102.58 (West 1988) (benefits reduced by 15%); Fla. Stat. Ann. §440.9(4) (West 1981) (benefits reduced by 25%).) Illinois, of course, has no counterpart to these statutes.

The cases cited by respondent do not require a different result. In Segler v. Industrial Comm’n (1980), 81 Ill. 2d 125, 406 N.E.2d 542, the employee was attempting to defrost a frozen pot pie for lunch in an area 25 feet from his designated workplace. Claimant was not pursuing any assigned duties. The court denied compensation, finding claimant was performing no job task in that area and his actions could not be thought of as beneficial to the employer.

In Bradway v. Industrial Comm’n (1984), 124 Ill. App. 3d 983, 464 N.E.2d 1139, employees were injured while in the process of constructing a pontoon boat on a personal project. The issue was whether the employer acquiesced in this practice. The court held the employees exposed themselves to a risk outside of any reasonable exercise of their duties.

In Lumaghi Coal Co. v. Industrial Comm’n (1925), 318 Ill. 151, 149 N.E. 11, claimant was a mine examiner who made repairs at night. Electric motors used to haul cars of coal during the day. were stored at night and their use was not permitted at night. On the night of the accident claimant used one of the motors and was injured. Compensation was denied since claimant chose to violate positive instructions and to voluntarily, without knowledge of the employer, engage in a hazardous method of taking him from one part of the mine to another. Claimant had thus put himself out of the reasonable sphere of his employmént since it was clear the place where the motors which he was forbidden to use were stored was not a place where he was permitted to work.

In this case, claimant was where he was supposed to be, doing what he was hired to do, albeit in an obviously negligent manner. That the risk was unreasonable is immaterial since the violation occurred within the course of claimant’s employment.

The decision of the Commission denying benefits is against the manifest weight of the evidence and is reversed. The cause is remanded to the Industrial Commission for the purpose of awarding death benefits.

Circuit court reversed; Industrial Commission reversed; remanded to the Industrial Commission for further proceedings.

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


author: PRESIDING JUSTICE McCULLOUGH

text:
    KEVIN KURTZ et al., Plaintiffs-Appellants, v. ILLINOIS NATIONAL BANK OF SPRINGFIELD, Defendant-Appellee.
    Fourth District
    No. 4—88—0512
    Opinion filed February 9, 1989.

      Mercer Turner, of Bloomington, for appellants.
    Robert J. Barry, of Lincoln, and George B. Gillespie, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and Robert B. Oxtoby, of Van Meter, Oxtoby & Funk, both of Springfield, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs appeal a trial court order granting summary judgment to defendant Illinois National Bank of Springfield (INB). Plaintiffs argue disputed issues of fact exist which preclude summary judgment on their interference with contractual expectancy action.

We affirm.

Plaintiffs and their father were farm tenants of the Scully Trust in Logan County. Under their lease, they could not encumber crops grown on the leased property through a security agreement. Plaintiffs’ parents borrowed money from INB in March 1982 and entered a farm security agreement. A Uniform Commercial Code-1 (UCC) financing statement was filed. The Scully lease was not renewed for the 1985 crop year. Plaintiffs filed suit alleging INB’s actions in filing the financing statement and taking a security interest in crops were either an intentional interference with their contract expectancy or a negligent interference.

Their complaint alleged: (1) plaintiffs’ parents in March 1982 conveyed a security interest to and executed a financing statement in favor of INB; (2) plaintiffs and their father were lessees of a farm lease in 1984 with the Scully trust; (3) the lease included property described in the 1982 financing statement; (4) the financing statement and security agreement were made in violation of paragraph 2 of the lease; (5) plaintiffs’ father told INB it could not have a lien on crops grown on the Scully lease property and relied on INB to prepare a financing statement and security agreement which would not violate the lease; (6) the lease was terminated on October 22, 1984, pursuant to a termination notice; (7) plaintiffs discovered the lease was terminated because of the security interest evidenced by the financing statement; (8) plaintiffs and their ancestors had been tenants of the Scullys for six decades and plaintiffs had not violated the terms of the lease; (9) except for the security interest evidenced by the financing statement, no violation of the lease had ever occurred; and (10) historically, the Scully leases were never terminated absent a default. Plaintiffs further alleged that but for the security interest as evidenced by the financing statement, they would have continued as tenants of the Scullys.

The financing statement filed on March 26, 1982, was attached to the complaint. It states:

“1. This financing statement covers the following types (or items) of property:
All farm machinery and equipment, supplies and attachments, now owned and hereafter acquired; all crops which are now growing and hereafter are grown on Real Estate Owned and, Rented in Sections given below and all products of all crops owned in Sections 21, 17, 16 of TWP 19N R3W and parts of Sec 10, 15 of Twp 19N R3W and land rented from Roller in Sec 17 and 20 of Twp 19N R3W all Logan Co. Illinois.” (Emphasis added.)

On March 19, 1982, plaintiffs’ parents entered a farm security agreement covering “[a]ll crops which are now growing or hereafter are grown on real estate owned of record by Kurtz; in [sections] 10, 15, 16, 17 and 21 and legally described as *** and the products of all such crops.” On March 26, 1982, by memorandum agreement with the consent of the Scully trustees, INB was made a cotenant of the lease.

The Kurtz lease with the Scully trust covered property in section 17. It was a year-to-year lease which specifically stated the tenant could not encumber by security agreement crops grown on the leased premises.

On October 22, 1984, plaintiffs and their parents were sent a notice of termination letter from Ken Harp, a farm manager at First National Bank of Lincoln (FNB). FNB was the agent of the Scully trustees. The letter stated the tenants were to vacate the described premises at the expiration of the lease, February 28,1985.

On April 29, 1988, INB filed a motion for summary judgment alleging there was no genuine issue of material fact as to plaintiffs’ allegations against it. INB further alleged plaintiffs had not shown a duty or breach of a duty. INB argued the financing statement was not evidence of any negligence on its part, since it was controlled by the security agreement. In a response to the summary judgment motion, plaintiffs argued the trial court should consider a promissory note dated March 29, 1983, as evidence of a security agreement establishing a lien on crops grown on the leased property. The March 29, 1983, note states that as collateral plaintiffs’ parents pledged a second mortgage on lands owned, the farm security agreement dated March 25,1982, and the Scully lease.

Several depositions were attached to the motions. David Sullivan, loan officer for the special assets department of INB, stated that he understood INB did not have a lien on the crops grown on the Scully property. INB had never attempted to take such a lien. Sullivan supervised the preparation of the 1983 note but could not explain how the language “Scully Lease” was placed in the collateral section. Sullivan stated he believed it incorrectly listed the Scully lease. The March 1983 note also refers to the March 1982 security agreement.

Sullivan first discovered that the March 1983 note listed the Scully lease crop as collateral during his deposition which plaintiffs conducted in February of 1987. From March 29, 1983, through July 1985, he did not know the March 19, 1983, note listed as collateral crops grown on land leased from the Scully trust.

James Walden, a vice-president and trust officer for FNB, stated he was familiar with the Scully trust. FNB is administrator and agent for the Scully trustees. Walden supervises farm management for FNB. The Scully trust has always operated on a cash-lease basis rather than a crop-share basis. Walden remembered two leases which the Scully trustees terminated in the recent past. A lease in the past year had been terminated due to a lien against the crops. However, Walden was not familiar with any lease being terminated absent a breach by the tenant. In late 1984, an attorney asked Walden why the Kurtz lease had been terminated. Walden talked to Ken Harp. Harp was to tell the attorney the lease had not been renewed due to a problem with crop encumbrances. Walden stated FNB discovered the UCC financing statement on the crops through the daily abstract report. The existence of the apparent lien was the reason for the termination of the lease.

Harp, formerly a farm manager for FNB, stated he was employed by FNB and not by the Scully trustees. He was familiar with the Kurtz family’s lease and the Scully property. On March 5, 1982, plaintiffs were added to the lease as they were purchasing an interest in it. The Scully trustees knew of the transfer and approved it. As a matter of the policy, sons of leaseholders were given the first opportunity to purchase their fathers’ interest. Harp stated that Peter Dennys Scully and Michael Scully directed him to send a notice of termination to plaintiffs’ parents. This direction was the result of conversations at one or more trustees’ meetings. As a reason for the termination notice, the trustees indicated through Walden that there was the apparent lien on the crops. Harp first saw the financing statement in the summer of 1984. It was recorded in Logan County on March 26, 1982. The trustees had a copy of the financing statement at the time they directed him to send the notice of termination. The Scully trustees knew about the financing statement in the summer of 1984. The Scully trustees indicated that they were concerned about the Kurtz family’s financial condition.

Michael Scully, a trustee for the Scully trust, stated that historically tenants remained until they retired and handed their leases over to their sons. However, the new leaseholder had to be approved. Scully stipulated to the fact that plaintiffs were listed with their father as tenants on the last lease. In 1984, the Kurtz question was brought to Scully’s attention by Harp, who had discovered a lien on the crops in contravention of the lease. However, the trustees decided to continue the lease if the Kurtz family could get adequate financing. A question about their financial ability to continue farming was considered. The trustees considered that the Kurtz family had incurred a large loan with INB. The trustees’ decision was to continue the lease as long as the Kurtz family could receive adequate financing from INB or a different lender. Eventually, the lease was terminated by nonrenewal. The trustees sent a letter of termination to be in a more flexible position to not renew or continue the lease depending on the circumstances.

Scully further stated the lease was not terminated because of the lien but because of a number of factors, including the financial condition of the Kurtz family. The trustees wanted to give notice of nonrenewal within the statutory period. They would have renewed, however, if INB was satisfied with its financial arrangements with the Kurtz family. Subsequently, he understood INB had decided not to refinance the loan.

Peter Dennys Scully, a trustee of the Scully trust, stated that at the September 19, 1984, trustees’ meeting the Kurtz family’s lease was discussed. The trustees tried to work out a way for the Kurtz family to keep farming, but wanted security. They decided to renew the lease if the Kurtz family could obtain adequate financing. However, they gave the statutory notice of nonrenewal. The Kurtz family had several large debts. The trustees felt the debt presented too high a burden for them to continue farming. In 1984, Harp brought the UCC-1 financing statement to Peter’s attention. This also entered into the termination decision. The lease would not have been continued with Donald Kurtz as a tenant.

The minutes of several trustees’ meetings were attached to INB’s summary judgment motion. The September 19, 1984, minutes show the trustees decided to send a letter to INB confirming the trust would renew the lease with the Kurtz family if INB would finance the 1985 crop year. The lease would not be renewed if plaintiffs’ parents could not obtain financing with some lender. The farm manager was asked to prepare and deliver a notice of lease termination with the explanation that the lease would be renewed if financing was obtained. Minutes for the November 14, 1984, trustees’ meeting stated that because of the uncertain terms of financing and a large debt of plaintiffs’ parents, the trustees resolved not to extend the lease for 1985.

The trial court found the March 26, 1982, security agreement created the security interest in question. If a discrepancy existed between the 1982 financing statement and the security agreement, the security agreement controlled. The court further found that the trust had an absolute right not to renew the lease. The court then found that any negligence of INB merely created a condition providing an opportunity for other causal agencies to act. It found no duty to plaintiffs on the negligence count and if there were a duty there was no breach of it which proximately caused the injury. Therefore, the trial court granted summary judgment to INB.

Initially, plaintiffs argue that a disputed issue of fact exists as to whether the lien was the proximate cause of the lease’s nonrenewal. They contend the harm to them was foreseeable as a result of INB’s action. Further, they contend INB knew about the lease. Plaintiffs argue this issue precludes entry of summary judgment. Plaintiffs then assert the trial court considered the correct financing statement but considered the wrong security agreement. Plaintiffs argue the court should have considered the March 1983 promissory note as a security agreement. Since this note includes the “Scully Lease” in its statement of collateral, plaintiffs assert its existence raises an issue of fact precluding summary judgment.

INB asserts the trial court correctly found the security agreement controlled the financing statement. The security agreement described the collateral in a manner which excluded land leased from the Scully trust.

Summary judgment should be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052.) The court must consider the pleadings, exhibits, and affidavits and construe them strictly against the movant and liberally in favor of the opponent. (Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810.) Even though a complaint may purport to raise an issue of material fact, if such issue is not further supported by evidentiary facts, summary judgment is appropriate, Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500-01, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Seefeldt, 154 Ill. App. 3d 715, 506 N.E.2d 1052.

When a defendant files a motion for summary judgment, the plaintiff must come forward with some evidence of the elements of his cause of action. (Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85, 530 N.E.2d 646; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207.) Although plaintiff, as the party opposing summary judgment, is not required to prove his case, he must provide a factual basis under which he is entitled to judgment. Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 514 N.E.2d 68; Volling v. Amoco Chemical Corp. (1987), 159 Ill. App. 3d 424, 512 N.E.2d 124; Lindenmier, 156 Ill. App. 3d 76, 508 N.E.2d 1201.

Tort liability may be imposed upon a defendant who intentionally and improperly interferes with a plaintiff’s rights under a contract with another person. Similarly, it may be tortious to interfere with a plaintiff’s prospects of economic gain where those prospects are not reduced to a contract right. Interference with the contractual relationship may be improper. However, in the case where a prospective economic advantage is at issue, more latitude is allowed for interference. (W. Keeton, Prosser & Keeton on Torts §129, at 978 (5th ed. 1984); Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 552, 413 N.E.2d 98, 101.) Illinois recognizes actions for interference with contractual relationships and interference with prospective economic advantage. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709, 713, 306 N.E.2d 549, 553.) The torts are closely related. Each recognizes that a person’s business relationships constitute a property interest which is entitled to protection from unjustified tampering. (Belden, 90 Ill. App. 3d at 551, 413 N.E.2d at 101.) The elements of interference with contractual relations are: (1) the existence of a contract between plaintiff and another; (2) the defendant’s awareness of this relation; (3) the defendant’s intentional and unjustified inducement of the breach of the contract; and (4) a subsequent breach caused by defendant’s conduct; and (5) damages. Belden, 90 Ill. App. 3d 547, 413 N.E.2d 98.

The elements of tortious interference with prospective economic advantage are: (1) plaintiff must have a reasonable expectation of entering a valid business relationship; (2) defendant must purposefully interfere and defeat this legitimate expectancy; and (3) defendant’s actions must cause harm to plaintiff. Belden, 90 Ill. App. 3d 547, 413 N.E.2d 98; Cashman v. Shinn (1982), 109 Ill. App. 3d 1112, 441 N.E.2d 940; Tom Olesker’s, 16 111. App. 3d 709, 306 N.E.2d 549.

In the instant case, the lease expired at the end of its one-year term. It was not renewed. Renewal was not automatic. Since the lease between the Scully trustees and plaintiffs was not terminated early, plaintiffs are in effect suing for the loss of future leases or interference with prospective economic advantage. Plaintiffs contend the filing of the financing statement could have been intentional. Therefore, they argue the trier of fact should have resolved this issue. They contend inclusion of the term “Scully Lease” in the collateral portion of the 1983 promissory note was also intentional. Plaintiffs concede the financing statement in and of itself does not create a lien against the crops. However, they argue the appearance of a lien is sufficient to commit tortious interference with contractual relations.

Plaintiffs’ argument does not address the 1982 security agreement to which the 1982 financing statement and the complaint refer. The March 1982 financing statement could, viewing the document most favorably to plaintiffs, have described a security interest taken in the crops grown on the Scully leased land. However, the parties agree the financing statement, as a notice document, did not of itself create a security interest. The security agreement appurtenant to the financing statement created the security interest. This security agreement, dated March 19, 1982, specifically applied to land owned of record by plaintiffs’ parents and lands leased from the Roller family. It did not include any lands leased from the Scully family.

When a financing statement describes a greater quantity of property than that described in the corresponding security agreement, the security interest is defined by the narrower description contained within the security agreement. (Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, 453 N.E.2d 145.) Section 9-105(1)(l)of the Uniform Commercial Code-Secured Transactions defines security agreement as an agreement which creates or provides for a security interest. (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 105(1)©.) A security agreement is effective according to its terms. (Ill. Rev. Stat. 1987, ch. 26, par. 9—201.) The function of the financing statement is to notify third parties that a secured party may have a perfected security interest in the collateral described. Allis-Chalmers, 117 Ill. App. 3d 428, 453 N.E.2d 145.

In the instant case, the 1982 security agreement controlled the ambiguity in the UCC-1 financing statement. Since the security agreement did not conflict with the lease terms, no tortious interference could have occurred. Plaintiffs in their complaint alleged the security interest as evidenced by the financing statement constituted the violation of the lease. They further alleged this constituted an intentional interference with their renewal expectancy. Since the security agreement referred to in the complaint did not in fact impose a lien on the crops grown on the Scully lease, no intentional action could have been involved, and plaintiffs’ cause of action for intentional interference with contractual relations must fail. The trial court correctly granted summary judgment.

Plaintiffs assert the trial court considered the wrong “security agreement.” They assert the 1983 promissory note was a security agreement. This note included in the collateral statement the words “Scully Lease.” This contention is without merit for several reasons. Plaintiffs’ complaint alleged the 1982 security agreement was the action which violated their lease. They did not amend their complaint or allege anything about the 1983 promissory note. The summary judgment motion is tied to the allegations of the complaint. Secondly, the terms of the 1983 promissory note were not known to the Scully trustees, and thus, could not have been the basis of their decision not to renew the lease. There is no indication in the record that any of the parties knew of this language in the promissory note until approximately two years after the decision not to renew the lease. Third, Sullivan, in Ms deposition, stated the inclusion of the words “Scully Lease” on the 1983 promissory note was an error. Sullivan further stated that defendant did not intend to take any lien on the crops grown on the Scully leased land. Plaintiffs did not present any affidavits or indications to contradict this statement. Therefore, the state-merit in the deposition should control.

The trial court correctly granted summary judgment to INB because plaintiffs’ pleadings, even construed most favorably to them, do not show the 1982 document created a security interest in contravention of the lease. An ambiguity in the financing statement under the circumstances presented here cannot be said to represent an intentional interference with contractual expectancy.

INB also contends plaintiffs failed to present “sufficient” evidence of: an expectancy of lease renewal; INB’s knowledge of the lease terms; and proximate cause. We disagree. Viewing the matters before the court most favorably to plaintiffs, disputed issues of fact existed as to these matters.

Plaintiffs urge this court to find negligence in preparation of the financing statement can constitute interference with contractual relations. However, only one court in Illinois has recognized negligence as a basis for interference with contractual relations. In American Transportation Co. v. U. S. Sanitary Specialties Corp. (1954), 2 111. App. 2d 144, 118 N.E.2d 793, the court found negligence could be the basis of a combined action for trespass and interference with contractual relations. In that case, however, a physical injury occurred to plaintiff as a result of defendant’s actions. Additionally, plaintiff’s contract with the third party was cancelled.

All of the cases in Illinois other than American Transportation state that the tort is an intentional one. (See generally Cashman, 109 Ill. App. 3d 1112, 441 N.E.2d 940; Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827; Belden, 90 Ill. App. 3d 547, 413 N.E.2d 98; Tom Oleslcer’s, 16 Ill. App. 3d 709, 306 N.E.2d 549.) Prosser notes that in cases where a physical injury in addition to economic harm occurs, an exception to the rule that defendant’s actions must be intentional exists. (See W. Keeton, Prosser & Keeton on Torts §129, at 982 (5th ed. 1984).) Here, plaintiffs alleged solely economic injury. Therefore, the exception would not apply. Additionally, under Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, recovery for purely economic injuries would not be allowed in a negligence action.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and SPITZ, JJ., concur.


author: JUSTICE GREEN

text:
    DONALD D. MALONE et al., Plaintiffs-Appellees, v. WARE OIL COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—88—0562
    Opinion filed February 9, 1989.
    Randall A. Mead, of Heckenkamp, Simhauser & Drake, P.C., of Springfield, for appellant.
    Dawn L. Engel, of Costigan & Wollrab, P.C., of Bloomington, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On January 29, 1985, plaintiffs Donald D. Malone and Velva M. Malone sued defendant Ware Oil Company in the circuit court of McLean County. Plaintiffs’ complaint alleged contaminants released or deposited by Ware Oil Company (Wareco) from its automobile service station’s premises seeped through the ground to the basement area of plaintiffs’ nearby residence, which was located downhill from the Wareco station. Plaintiffs maintained the gasoline contaminated their basement by giving rise to an extremely foul smell. Plaintiffs maintained Wareco was guilty of the torts of private nuisance and negligence. After a jury trial was held, the court entered judgment on April 14, 1988, on a general jury verdict in favor of plaintiffs and against Wareco in the sum of $36,000.

Wareco has appealed, contending the evidence does not support the verdict and the court erred in rulings on instructions and Wareco’s objections to plaintiffs’ closing arguments. The parties do not dispute the rule stated in Patterson v. Peabody Coal Co. (1954), 3 Ill. App. 2d 311, 122 N.E.2d 48, that, in order to recover for a private nuisance, plaintiffs must- show (1) there was a substantial invasion of the use and enjoyment of their land; and (2) the invasion was either negligent or intentional and unreasonable. We conclude the evidence was insufficient to support a jury determination that any invasion of plaintiffs’ property by gasoline coming from Wareco’s property resulted from acts of commission or omission by Wareco which were either negligent or intentional and unreasonable. Thus, the verdict is not supported by either the nuisance or the negligence charges. We must reverse the judgment appealed and need not consider the other contentions of Wareco.

It is undisputed from the evidence that Velva Malone purchased a home at 409 North Livingston, in Bloomington, Illinois, in approximately 1955. She and Donald married in 1967, and they lived in the Bloomington residence from 1968 to the present. At all times relevant, Wareco owned and operated a gasoline service station on property located northeast and uphill from plaintiffs’ home. The surrounding neighborhood was zoned “light industrial” and included numerous industries.

The parties agree that in approximately 1976 Wareco replaced its above-ground upright storage tanks on the premises with underground tanks. Plaintiffs’ evidence indicated that about a year thereafter, Donald and Velva Malone began smelling an odor resembling gasoline in their home, and the odor persisted on and off since then. Velva testified the odor was strongest afterxheavy rains. She stated that when the odor was present, it started in the basement around the sump pump and rose into the kitchen and hallway. Donald testified he was not greatly bothered by the odor, but Velva testified the odor made her eyes, nose, and throat dry. A real estate appraiser, testifying on behalf of plaintiffs, estimated their property to be worth (1) $22,500 absent any odor problem; (2) $11,000 with the odor problem, assuming the problem could be cured at a reasonable cost; and (3) only $1,500, after demolition, if the odor problem could not be cured.

The evidence also undisputedly showed that on March 2, 1978, Donald Malone complained about the odor to the Bloomington fire department. The fire department investigated the complaint but reached no conclusion as a result of the investigation. The evidence indicates Donald Malone also made subsequent complaints to the fire department.

The fire department then drew samples from plaintiffs’ sump pump and from numerous tanks in the area and sent them to an Illinois State University chemist for analysis. The chemist hired by the fire department testified that, based upon his analysis, there was no question the sump pump contaminant was something similar to a typical gasoline. However, the chemist also stated he was unable to “match” the sump pump samples with any of the gasoline samples taken from the various tanks in the neighborhood. He further stated that, of the 15 samples he examined, six of them matched up better than the remaining nine samples. He said he was unable to differentiate among the samples which more nearly resembled the sump pump sample. A sample from the Wareco tanks was among those six samples.

The fire department further requested Wareco to test its tanks to determine whether they were leaking. The tests revealed Wareco’s six tanks did “leak,” but those leaks totaled .127 gallons per hour and were well within the city ordinance leakage limit of .505 gallons per hour. Therefore, the tanks were considered “tight.” The fire marshal stated the company which performed the tests may not have taken the water table into account in testing the tanks. Several witnesses indicated this omission could have flawed the test results one way or another because the water would determine the amount of pressure on the tanks, and, the greater the pressure, the less the leakage.

Following these tests, the fire department sent a letter to plaintiffs which indicated “Wareco was not the source of the odor” in the Malones’ house. (Emphasis added.) The fire marshal further stated at trial that no evidence had exclusively established defendant as the source of the odor on those times that the fire department had responded to plaintiffs’ complaints.

In 1983 and 1984, employees of the Illinois Environmental Protection Agency (EPA) installed four groundwater monitoring wells near the Wareeo service station. Independent consultants hired by defendant also sunk wells on and about defendant’s property. The EPA took soil borings from the ground as well.

The results of the EPA tests generally indicated that the well located north of and uphill from defendant showed no detectable level of gasoline in it, while wells located south of and downhill from the service station contained varying levels of gasoline concentration. A witness testified the test results from Wareco’s consultants “corroborated and corresponded very closely to the EPA results.” However, the actual test results from that firm were not introduced into evidence.

Plaintiffs also hired their own consulting firm to analyze the odor problem. A geologist from that firm reviewed the following documentation sent to him: (1) an Illinois EPA report which documented the monitoring wells and testing groundwater; (2) the test results of testing performed on tanks at the station site to determine whether Wareco’s tanks were “tight”; (3) Bloomington fire department records; and (4) the test results from monitoring wells located on the station site. Based upon his review of those records, he testified to an opinion “that the Wareeo station site [was] in fact the source of gasoline encountered in wells and in the sump of the Malone residence.” He could not identify the exact source of the contamination but concluded the concentrations of gasoline found on plaintiffs’ property were too high to be the result of day-to-day spillage by defendant.

Many witnesses acknowledged the remote possibility that the source of the contamination could have been a spill years ago and miles up-gradient from the service station. Based upon the evidence given as to the source of the gasoline, however, we conclude the evidence was sufficient to support a jury determination that gasoline from defendant’s service station had migrated underground to plaintiffs’ property and caused the contamination.

Defense witnesses testified concerning the care with which the Wareeo station was operated. A station manager explained the procedures used by defendant to monitor the amount of gasoline received and disbursed to customers. He said the transport driver gives them a bill of lading which contains the number of gallons received in the transport. The driver measures the tank with a stick both before and after the gasoline is delivered, and those figures are also entered on the bill of lading given to defendant. In addition, the manager measures the tank daily to determine if any of their product is missing. Those numbers are compared with the meters on the pumps or the electronic console. Several witnesses indicated the Bloomington station had not suffered any loss of its product during the time period in question.

A gasoline transport driver for defendant testified concerning the systems used by the station to fill its tanks. He said that prior to 1986, the system used to fill the tanks was not airtight. He stated that, in the filling process, a cupful of fuel commonly spilled out, and there was no way to prevent it. After 1986, however, an airtight system was installed, with no spills resulting. The station received three or four deliveries per week.

The station had its lines reworked in September 1984. A fire inspector present on the premises during that time said he observed only one joint with a very slight dampness and found no product which he could see that had leaked into the ground. The lines again tested “tight” at that time. The station then removed its six underground tanks in September 1986. At that time, it further discovered two additional aged skeleton tanks which it also removed.

A fire inspector monitored the removal of these tanks in 1986. He said he viewed only a slight amount of soil contamination around three of the tanks. Although he observed spill contamination around the large 8,300-gallon tank which necessitated removal of IV2 truck loads of contaminated soil, he said the amount of contamination was not large considering the size of the tank. Testimony indicated spill contamination could be a result of many actions or inactions, including overfilling of the tanks upon delivery of the fuel.

Clearly, the jury could properly have determined from the evidence that the contaminant causing the odors in plaintiffs’ residence was gasoline which had migrated from the Wareco station to plaintiffs’ property. We then confront the question of whether the jury could have determined the migration resulted from Wareco’s intentional and unreasonable or negligent conduct.

We examine first the question of intent as applied to the intentional and unreasonable factor of the tort of private nuisance. In considering this issue, the Patterson court looked to the Restatement of the Law on Torts, where the word “ ‘[ijntentional’ is further defined in paragraph 825 as including a knowledge that the invasion of another’s interest *** is resulting or is substantially certain to result.” (Patterson, 3 Ill. App. 2d at 316, 122 N.E.2d at 51; citing Restatement of Torts §825 (1934).) The present version of that test similarly defines the conduct of an actor causing a nuisance as intentional if the actor “(a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.” (Restatement (Second) of Torts §825, at 117 (1979).) The intent element of the tort of private nuisance is also defined as the creation or continuance of the condition giving rise to the invasion “with full knowledge that the harm to the plaintiff’s interests are occurring or are substantially certain to follow.” W. Keeton, Prosser & Keeton on Torts §87, at 625 (5th ed. 1984); see also Woods v. Khan (1981), 95 Ill. App. 3d 1087,1089, 420 N.E.2d 1028,1030.

Plaintiffs’ complaint contains no direct allegation Wareco acted intentionally, and the main thrust of its argument is not directed to that theory. We conclude the jury could not properly have based its verdict for plaintiffs on such a theory. For much of the time after plaintiffs began smelling gasoline in their home in 1978, great uncertainty existed as to the source of that gasoline. Despite the efforts of both Wareco and plaintiffs, the information that test wells showed gasoline to be migrating under the surface of the soil downhill from the Wareco station but not uphill from the station was not available to Wareco until a few months before suit was filed. Wareco had its tanks tested by a firm specializing in that work. Although the tests performed may have lacked accuracy because of failure to consider the water pressure in the area around the underground tanks, the report of the testing purported to show that the tanks were reasonably retaining the stored gasoline. The evidence did not show anything Wareco could have done to prevent the migration of gasoline to plaintiffs’ property other than to stop all operations and drain its tanks. Any determination by the jury that Wareco acted through its agents and servants with the intent required for the tort of nuisance would be contrary to the manifest weight of the evidence, and no contrary verdict could ever stand. Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292.

The complaint was also very general in its allegation of negligence which was asserted as the basis for either the nuisance or the negligence charges. No specific acts of commission or omission were alleged. To show negligence on Wareco’s part, plaintiffs rely on the evidence that (1) after suit was filed, Wareco’s underground tanks were removed and some contamination of surrounding soil was shown; (2) two abandoned underground tanks were found when the others were replaced; (3) the amount of tank leakage shown by the report of the independent firm; (4) the evidence of spillage upon the filling of the tanks; and (5) Wareco’s method of record keeping.

After the suit had been filed, Wareco did have its underground tanks replaced. The testimony concerning contamination indicated that the contamination around most of the tanks was minimal, but that V-k truckloads of soil had to be removed around the largest tank. Even in regard to that tank, however, the testimony indicated the contamination was not great considering the size of the tank. Moreover, the information concerning the contamination was available to Wareco only after the suit had been filed. Wareco is responsible in this suit only for conduct occurring up to the time of the commencement of the suit, as no supplemental complaint was filed. (See 61A Am. Jur. 2d Pleading §289, at 281 (1981).) This evidence does not constitute notice to Wareco which would bear upon the care it exercised at times pertinent.

The testimony indicated the skeleton tanks were empty, and no indication is given that they caused the contamination migrating to plaintiffs’ property. The report of the independent firm did show a total leakage of some .127 gallons per hour from the underground tanks. However, no evidence indicated that amount was unreasonable, and the amount was shown to be only a fraction of that permitted by a municipal ordinance. While evidence at trial indicated the tests may have been inaccurate because of the failure of the independent firm to consider the outside water pressure upon the tanks, any negligence in that respect was not chargeable to Wareco. It was given assurance its tanks were in good condition. Moreover, no evidence was presented as to what the tests would have shown as to leakage had proper consideration been given to the water pressure. The jury could not properly infer that the results would have shown unreasonable leakage.

The evidence did indicate that a cupful of gasoline per delivery was spilled in filling the tanks, and this occurred approximately three times a week. This amount of spillage was obviously so small as to be insignificant. Plaintiffs’ complaint in regard to Wareco’s record keeping was that Wareco did not use a computer to determine the amount of fuel remaining in the tank instead of using a dip stick. Again, the jury cannot infer from the evidence that ordinary care required the use of the computer.

Citing Haynes v. Coca Cola Bottling Co. (1976), 39 Ill. App. 3d 39, 350 N.E.2d 20, and Woodrick v. Smith Gas Service, Inc. (1967), 87 Ill. App. 2d 88, 230 N.E.2d 508, plaintiffs point out that, if the inferences arising from the circumstances “are reasonable in the light of the jurors’ ordinary sensibility,” a tort case may be proved by circumstantial evidence alone. They then assert that the evidence of some leakage and spillage at the service station property and the evidence that the gasoline flowed to plaintiffs’ premises is sufficient, of itself, to infer the invasion of plaintiffs’ home was proximately caused by Ware-co’s negligence. Plaintiffs’ theory is very similar to the doctrine of res ipsa loquitur. (See Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397.) It is inapplicable here, though, because substantial quantities of gasoline can, in the ordinary course of affairs, escape from premises where a service station is being operated and travel underground to nearby properties downhill from the station without negligence on the part of the owner or operator of the station.

A jury determination here that Wareco was guilty of the negligence alleged to support either the nuisance charge or the simple negligence charge would also have been contrary to the manifest weight of the evidence, and a verdict based thereon could never stand. (Fitzpatrick, 112 Ill. 2d 211, 492 N.E.2d 1292.) Thus, the verdict cannot stand. We need not consider the question of whether the invasion of plaintiffs’ property was sufficiently substantial to meet the requirements of Patterson v. Peabody Coal Co. (1954), 3 Ill. App. 2d 311, 122 N.E.2d 48. Nor, as we have indicated, do we need to determine whether error occurred during the trial.

We reverse.

Reversed.

McCULLOUGH, P.J., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM JOSEPH CASEY, Defendant-Appellant.
    Fourth District
    No. 4—88—0174
    Opinion filed February 9, 1989.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant was convicted of aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2).) Subsequently, the trial court sentenced defendant to 25 years’ imprisonment. Defendant appeals arguing: (1) the trial court committed reversible error by refusing his instruction on battery; and (2) he was denied a fair trial by the failure of the trial court to sua sponte instruct the jury that the State had the burden of proving defendant acted intentionally, knowingly, or recklessly in committing the acts alleged.

We affirm.

The facts are well known to the parties and will be briefly summarized here. On August 7, 1987, an information was filed in McLean County alleging defendant knowingly had sexual intercourse with the complainant by use of force and in so doing caused bodily harm to her. El. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(2).

COMPLAINANT

Complainant and defendant are cousins. She resided with defendant and his mother for approximately one month during the summer of 1987. She then moved into her own apartment. However, she had financial difficulties and asked defendant’s mother if she could move back into their apartment. Defendant’s mother told her to talk to the defendant.

On August 6, 1987, at approximately 10:30 p.m., defendant picked complainant up after she had completed work. Defendant had given complainant rides home from work on prior occasions. He was to give her a ride home on this occasion. However, defendant and David Dennison, a friend, went to Chuck McComb’s house, where complainant changed from her work uniform. After she and defendant dropped Dennison off at his home, defendant asked her to accompany him to a third friend’s house near Lake Bloomington. Complainant stated she and defendant discussed her old boyfriend as they drove toward the lake. Defendant indicated he needed to stop to urinate. He pulled into a parking lot near the lake and left the vehicle.

Complainant stated that after defendant returned to the vehicle, he looked at her in a manner which caused her to be uncomfortable. She told him to stop looking at her. Defendant responded that he could engage in sexual intercourse with her if he wanted to but he did not want to. Complainant stated she said fine and told defendant to quit looking at her. Defendant looked out the window and told complainant to remove her clothing. When she refused, defendant slid over onto her legs, held her arms, shook her, and told her to remove her clothing. Complainant refused again, and defendant hit her in the face and left side of her body with his open hand. He again told her to remove her clothing, and she again refused. Defendant then hit her face with his fist several times while pulling at her sweatshirt. Complainant asked defendant to take her home.

Complainant stated she then opened the door of the vehicle and fell out of the car onto her stomach. Defendant jumped onto the top of her back, encouraging her to engage in sexual intercourse. He then grabbed her hair and hit her head against the parking lot. Defendant pulled complainant to her feet and held her against the vehicle. Complainant told him she would remove her shirt if. he would let her go, but defendant refused to let go of her. Complainant removed her shirt but refused to remove her brassiere. Defendant removed her brassiere and held complainant’s neck while she removed her jeans. Defendant took complainant to a grassy area near the lot, where they engaged in sexual intercourse. Complainant stated she was crying. However, defendant told her to be quiet or he would hit her again. Defendant said he would make sure she could move back into his mother’s apartment, and as he drove into town, told her not to tell anyone. Complainant denied engaging in sexual intercourse with defendant prior to the instant occasion. She stated they had not been arguing prior to the assault.

CORROBORATING WITNESSES

Several witnesses testified that complainant made a prompt report of the assault, looked as if she had been badly beaten, and was somewhat hysterical during the early morning hours of August 7, 1987. A forensic scientist testified that the seminal material found on complainant could have come from defendant.

BONNIE SERONE

Bonnie Serone, a McLean County deputy, testified she and other officers arrested defendant. Defendant waived' his Miranda rights and gave both an oral and written statement. In his written statement, defendant admitted asking complainant if she wanted to engage in intercourse, pushing her out of the vehicle, exiting the vehicle, and knocking complainant to the ground before she consented to remove her clothing. The written statement was also introduced at trial. In it defendant stated complainant was crying and asking defendant not to hurt her. She was harassing him at that time and did not want to engage in sexual intercourse, so he hit her once or twice in the face. Defendant did not think he had to force complainant, though she did not want to engage in sexual intercourse. Defendant admitted complainant said she would engage in sexual intercourse if he would quit hitting her.

DEFENDANT

Defendant testified in his own behalf at trial. He stated he and complainant had been arguing on the way out to the lake about complainant’s boyfriend and money problems. The argument continued after they parked the car. Defendant told complainant to quit talking about her problems but she continued. Therefore, he hit her. Complainant yelled at defendant after he hit her, so defendant hit her again and pushed her out of the vehicle. Defendant admitted getting out of the car and hitting complainant again because she was yelling at him. He pushed her against the car to quiet her down. Complainant hit him so defendant grabbed her hair.

Defendant further testified that after complainant settled down he asked her if she wanted to engage in sexual intercourse. Initially, she was not sure but agreed to remove her clothing. They apologized to each other, and complainant agreed to engage in sexual intercourse. They had engaged in sexual relations several times while growing up.

Defendant further testified that his written statement was inaccurate. He and complainant did not discuss sexual intercourse until after they exited the vehicle. Complainant never said she did not want to engage in sexual intercourse with defendant, and defendant did not ask her to do so until after they quit fighting.

Initially, defendant argues battery is an included offense of aggravated criminal sexual assault. Therefore, the trial court committed reversible error in refusing his instruction. An included offense is an offense which is established by proof of the same or less than all of the facts or a less culpable mental state than is required to establish the offense charged. (Ill. Rev. Stat. 1985, ch. 38, par. 2-9(a).) It may be established by a comparison of the relevant statutory sections or by considering the offense as charged in the information or indictment. (People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993; People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633; People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189.) Section 12-14(a)(2) of the Criminal Code of 1961 states:

“The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
* * *
(2) the accused caused bodily harm to the victim.” (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2).)

Sexual assault is defined in part as an act of sexual penetration by use of force or threat of force. Ill. Rev. Stat. 1985, ch. 38, par. 12— 13(a)(1).

Section 12 — 3(a) of the Criminal Code of 1961 states:

“Battery, (a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a).)

The supreme court has defined “bodily harm” as the same under both statutes. People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.

A comparison of the statutory definitions leads to the conclusion that battery is not an included offense of aggravated criminal sexual assault. Battery requires proof that the defendant acted intentionally or knowingly. (Ill. Rev. Stat. 1985, ch. 38, par. 12—3.) Aggravated criminal sexual assault is a general intent offense. (People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490.) As such, it needs no proof of a particular mental state. A defendant could be convicted of aggravated criminal sexual assault without proof of one of the necessary elements of battery. Therefore, battery is not an included offense of aggravated criminal sexual assault. People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397.

Defendant argues, in essence, that since the State charged he “knowingly” committed aggravated criminal sexual assault that battery is an included offense. We disagree. The State was not required to prove specific intent under the aggravated criminal sexual assault statute, but only that defendant caused bodily harm to complainant. Specific intent or knowledge is a necessary element of battery. Even though proof of bodily harm would sustain one element of battery, no evidence was offered as to the intent or knowledge of the defendant. Therefore, an instruction on battery was not required. People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397 (holding battery is not an included offense of aggravated criminal sexual assault).

• 4 Defendant next contends he was denied a fair trial by the trial court’s failure to instruct the jury that the State had the burden of proving he acted intentionally, knowingly, or recklessly in committing the acts alleged. Defendant did not raise this argument below, offer instructions including a mental state, or raise the issue in his motion for a new trial. As such, the issue is waived. (People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397.) However, a reviewing court may modify the waiver rule where a grave error occurred or where waiver will result in a denial of fundamental fairness in a factually close case. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) Fundamental fairness includes insuring that basic jury instructions are given. Instructions on the elements of the offense charged are among those instructions. People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.

In Ortiz and Leonard, the courts rejected the precise argument defendant raises here. The courts noted it is not error to refuse to instruct on a specific mental state even though a specific mental state is alleged in the indictment. A mental state of intent, knowledge, or recklessness will be implied to satisfy the general intent requirement. (People v. Talley (1988), 177 Ill. App. 3d 170.) Additionally, approved jury instructions for sex offenses show instructions defining general intent offenses need not state a specific mental state. See Illinois Pattern Jury Instructions, Criminal, Nos. 11.31, 11.32,11.33,11.34 (2d ed. Supp. 1987).

Defendant argues the above cases are distinguishable because they did not give adequate consideration to the constitutional argument alleged. Defendant argues the concept of implied intent unconstitutionally shifts the burden of proof. In the cases cited by defendant, the supreme court disapproved of instructions which told the jury that a presumption existed as to the required mental state. (See Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965; Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.) No such burden-shifting instructions were given in the instant case. People v. Avant (1989), 178 Ill. App. 3d 139.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and KNECHT, JJ., concur.


text:
      In re MARRIAGE OF ABBIE LOUISE EMERY, Petitioner-Appellant, and EARL DOUGLAS EMERY, Respondent-Appellee.
    Fourth District
    No. 4—88—0345
    Opinion filed February 9, 1989.

      C. Steve Ferguson, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Robert Alan Dunst, of Kidwell, Cummins & Bast, of Mattoon, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal concerns a judgment entered in the marriage dissolution proceedings between the petitioner Louise Emery (Louise) and respondent Earl Emery (Earl). Louise claims errors in the (1) division of marital property and indebtedness; (2) the lack of a maintenance award; and (3) the award to Earl of the income tax exemption for their minor child. We agree and reverse.

The order of dissolution of the lGVa-year marriage of Louise and Earl, effective May 15, 1986, was entered on June 5, 1986. At that time, Louise was 55 years old and Earl was 59 years old. One child was born to them during the marriage in 1973. Sole custody of the child was awarded to Louise. No issue is raised regarding custody or child support.

At the time of the dissolution, Louise and Earl entered into a stipulation, which was ratified by the court and made effective as of May 15, 1986. Among other matters, the stipulation provided that Louise would have exclusive possession of the marital residence during the pendency of the proceedings; that Earl would pay certain marital debts during the proceedings; and that Earl was to pay Louise $180 per week as temporary and partial child support and maintenance. The stipulation also stated that it was not considered by the parties to be a final division or judgment as to marital property or debts and would not be considered when a final judgment as to property, debts, child support, maintenance, and any other marital rights was entered.

After a hearing on March 19, 1987, the court entered a supplemental judgment on June 11, 1987. This judgment awarded custody of the child to Louise and ordered Earl to pay $100 per week in child support. This judgment also divided the marital property between the parties as follows:

Property Louise Earl
Marital Residence (Net Value) $2,553.58 0
Cash (Vacation Fund) $ 0 $ 778.13
Household Items $3,600.00 to $7,635.00* 0
Pension** $7,284.27_$14,568.55
TOTALS $ 13,437.85 to $17,472.85 $15,346.68
*Values represent the total valuation determined by Louise (low figure) and Earl (high figure) for all personal property in the marital household. The court stated the value was somewhere in between these figures but closer to Louise’s figures.
**Parties agreed on the value as of March 1986 of $21,852.82.

The pension amount awarded to Louise represents one-third of its value and is paid to Louise by Earl in monthly installments of $106.96, including 9% interest, beginning June 15, 1987, and terminating on June 8, 1995. Louise was ordered to pay the mortgage payments on the marital residence, $255.88 per month. The court barred Louise and Earl of any maintenance.

On July 10, 1987, Louise filed a motion for reconsideration and modification of the judgment. She argued that the division of property failed to take into account the factors set forth in section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 503). She further argued that the bar of maintenance and the child support award were erroneous in light of sections 504 and 505, respectively, of the Act. (Ill. Rev. Stat. 1985, ch. 40, pars. 504, 505.) Louise also requested that Earl be ordered to pay her attorney fees.

After a hearing on October 1, 1987, the court ordered Earl to pay Louise’s attorney fees but denied Louise’s motion for reconsideration of the judgment. The court’s order was entered on April 2, 1988. Louise appeals from the denial of her motion for reconsideration.

Louise raises three issues on appeal. First, she argues that the court’s division of the pension, using the “immediate or total offset” approach, was erroneous and an abuse of discretion. More specifically, Louise urges that the evidence established that she is not physically capable of full-time employment, and further, that the court failed to consider the statutory factors (Ill. Rev. Stat. 1985, ch. 40, par. 503) when allocating the pension amount. Louise contends that at least one-half of the pension should have been awarded to her, with no payments actually made until Earl retires, a utilization of the “reserved jurisdiction” approach to dividing pension interests.

Secondly, Louise assigns error to the lack of a maintenance award. Because of the gross disparity in incomes between Earl and Louise, Louise contends that when the statutory standards are applied (Ill. Rev. Stat. 1985, ch. 40, par. 504), an award of maintenance is proper and the court’s decision to award property in lieu of maintenance was erroneous and an abuse of discretion.

Finally, Louise contends that the court abused its discretion in ordering that Earl be allowed to claim their minor child as a dependent for income tax purposes. Louise requests that the judgment be reversed and this cause be remanded with instructions or for further proceedings. Louise also requests an order for reasonable attorney fees for this appeal.

Earl argues that the court properly awarded more of the pension to him, given that this asset was acquired through his employment. He further argues that the reserved jurisdiction approach to dividing pensions is used in those cases where retirement is imminent, which is not the case here. He asserts that Louise received more of a benefit from the manner in which the pension was divided than he did because of the recognized danger to a pension holder if the pension is divided before retirement benefits are receivable.

Earl also points out that Louise received all the personal property, while he received none, which ensures that her standard of living would remain the same. He also states that his valuations for the personal property were more credible and, therefore, Louise received actually more marital property than he received. Regarding maintenance, Earl contends that the evidence established that Louise is capable of full-time employment but fails to make any effort to obtain a suitable job. Under such circumstances, Earl contends she is not entitled to maintenance. Earl further argues that his financial situation is such that he cannot pay maintenance. Lastly, Earl contends it was within the trial court’s discretion to order that he be allowed the tax exemption for his son.

Section 503(d) (Ill. Rev. Stat. 1985, ch. 40, par. 503(d)) allows a court discretion to divide marital property in what it considers “just proportions,” taking into account all listed factors as well as any other factors deemed relevant in a particular case. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 286, 518 N.E.2d 1316, 1323.) The decision of a trial court in the division of marital property will not be disturbed unless there is evidence of clear abuse, i.e., when no reasonable man could take the view adopted by the trial court. (Benz, 165 Ill. App. 3d at 286, 518 N.E.2d at 1323; In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 824, 510 N.E.2d 14, 16.) “Just proportions” does not compel a division resulting in mathematical equality between the parties. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1085, 412 N.E.2d 1336, 1342.) An unequal division may be appropriate where the court has properly applied the statute. Kristie, 156 Ill. App. 3d at 825, 510 N.E.2d at 16-17.

• 3, 4 Louise first argues the pension was not properly allocated between the parties. Our courts have followed two basic methods in dividing these interests. Under the “reserved jurisdiction” approach, the division of the pension is delayed until it is actually paid out and the court retains jurisdiction to enforce the decree. (Benz, 165 Ill. App. 3d at 282, 518 N.E.2d at 1320; In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.) This method is best employed where it is difficult to place a present value on a pension due to uncertainties regarding vesting or maturation. (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519.) Under the second method, the “total offset” approach, the trial court determines the value of the pension based on actuarial evidence, discounts this amount to a present value, and then determines the marital amount of this pension. (Wisniewski, 107 Ill. App. 3d at 717, 437 N.E.2d at 1305.) Often, expert testimony is taken on valuation, and this approach is frequently utilized where retirement is imminent and there are sufficient other assets to allow an offset to the “nonpensioner” spouse. Benz, 165 Ill. App. 3d at 282, 518 N.E.2d at 1321; Wisniewski, 107 Ill. App. 3d at 717, 437 N.E.2d at 1305.

In the present case, the parties stipulated that the value of the pension rights was $21,852.82. This asset is the most significant, aside from the marital residence. The residence was valued by both parties at $21,000 but is subject to a mortgage debt of $18,446.72. By letter to counsel for the parties, the trial judge found that a portion of the pension must be allocated to Louise “to approximate an even division of marital property.” Louise was awarded the family residence ($2,553.58), the personal property in the home, and some nonmarital property ($900). The judge found the value of the personal marital property to be closer to the estimates given by Louise but made no specific findings as to each item or as to a total valuation. In the light most favorable to Louise, this property has a value of approximately $3,600. From the total marital assets of $28,784.53 (using low valuations for personal property), Louise received $13,437.85 or 47% of the total marital assets.

Viewing the division of property in the light of the statutory factors in section 503(d), we find the division to be an abuse of discretion. Specifically, we observe that the property allocated to Louise provides little income for her. The house has been rented for $300 a month, but this barely covers the mortgage payment of $255.88 per month. In addition, the record establishes that Louise is not capable, due to her vocational skills, of securing more than a minimum-wage job and her health and childcare responsibilities further limit her ability to acquire “capital assets and income” in the future. (Ill. Rev. Stat. 1985, ch. 40, pars. 503(d)(7), (d)(10).) She suffers from arthritis and varicose veins, both of which, according ito the medical testimony received, prevent Louise from having a job where she must sit or stand for eight hours a day or do any heavy lifting. While Louise is capable of employment, and in fact has worked previously and was working at the time of the divorce proceedings, she will not be able to obtain a job similar to Earl’s position. Earl is a journeyman electrician and is paid approximately $480 net per week.

We also note that the court found there was an obligation for Earl to pay maintenance but instead the court awarded Louise property in lieu of maintenance. Significantly, it appears the pension was allocated (one-third, two-thirds) to obtain an approximate even division of marital assets and then an immediate payout of this pension was ordered and characterized by the court as “property in lieu of maintenance.” The court considered the pension twice; first in dividing the marital property, .and second, when considering an award of maintenance. In effect, Louise received only $6,153.58 of the marital assets or 21.3%. We find error in the division of marital property.

Property division and maintenance issues are necessarily intertwined, though different factors must be considered when deciding each matter. Louise also argues there was an abuse of discretion in not awarding her any maintenance and she utilizes similar arguments for this issue. She contends that the division of the pension and the method of payment (monthly) requires her to consume a marital asset to maintain herself and this is contrary to the law. Moreover, she argues that when the factors set out in section 504 are applied to her case, it is clear she is entitled to maintenance.

Section 504(a) sets forth the factors a court must consider when deciding whether or not maintenance is appropriate. If the spouse seeking maintenance (1) lacks sufficient property, including marital property, to provide for his reasonable needs, (2) is unable to support himself through appropriate employment, or (3) is otherwise without sufficient income, a maintenance order may be granted. (Ill. Rev. Stat. 1985, ch. 40, par. 504(a).) After maintenance is awarded, section 504(b) sets forth the factors to consider in determining the amount and duration of the maintenance award. We find that the evidence established Louise is entitled to maintenance.

Louise receives $300 per month of rental income from the marital home; she moved with her son to an apartment. Her net employment income per month, based on the last job she held, is $314 per month. She receives $430 per month in child support. She has no other income. In her financial affidavit, uncontroverted at trial, Louise listed her monthly expenses as follows:

Mortgage $ 255.88
Rent (apartment) 200.00
Food 384.25
Utilities 143.50
Clothing 35.00
Medical Care 168.00
Transportation and Car Payment 316.98
Miscellaneous 220.00
TOTAL $1,723.61

With the pension check, Louise’s deficit per month is $572.65; without the pension check, the deficit is $679.61. Even if Louise is able to obtain a better paying job, she remains unable to provide for her monthly needs. Earl argues that the sale of the house would reduce Louise’s monthly expenses. However, Louise is not required to sell her assets or her capital in order to maintain herself in the manner established during the marriage. Thornton, 89 Ill. App. 3d at 1088, 412 N.E.2d at 1344.

Earl argues that he is not financially able to pay any maintenance. He points out in his brief that his annual income dropped from $59,313 in 1985 to $46,261.68 in 1986. He projected his 1987 income at $40,212.60. The evidence established that Louise’s gross earnings for 1986 were $4,696, 10 times less than Earl’s earnings. Earl’s financial affidavit, also uncontroverted at trial, lists the following monthly expenses:

Rent $250.00
Utilities 55.00
Food 400.00
Clothing 60.00
Transportation and Car Payment 469.56
Miscellaneous 21.00
TOTAL $1,255.56

At the time the affidavit was filed, Earl stated his net weekly income was $498.36 or $2,142.95 net per month. Thus, Earl has a surplus of $887.39 per month. From this amount, he pays child support of $430 per month, $106.96 for the pension payment, and $107.50 for Louise’s attorney fees. These payments leave Earl with $242.93 per month. If maintenance were awarded, both parties would enjoy a more equal standard of living, though it would not be the same as that enjoyed during their marriage.

Additionally, Louise argues that the award of the tax exemption for dependents to Earl was an abuse of discretion. We agree. Section 152(e) of the Internal Revenue Code of 1954 (26 U.S.C. § 152(e) (1982)) expressly provides that the custodial parent is automatically entitled to the exemption unless that parent signs a waiver of the exemption. We find no indication in the record that a waiver was executed by Louise nor is it alleged on appeal that a waiver was signed. The trial court was without authority to award the exemption to Earl in direct contravention of Federal law. (In re Marriage of Theroux (Minn. App. 1987), 410 N.W.2d 354.) On remand, the tax exemption should be awarded in accordance with the provisions of section 152(e).

We find that a redistribution of marital property and an award of maintenance is required, and thus, we reverse and remand this cause. In her brief, Louise suggests that maintenance in the amount of $150 per week until Earl attains age 65. While we find Louise is entitled to maintenance, we decline to fix the amount and leave this task to the trial court. Nonetheless, we note that maintenance should be determined in conjunction with the property division made on remand. We also make no specific findings as to the proper division of marital property in this case but direct that a division be made consistent with this opinion.

Finally, in her prayer for relief, Louise requests that this court enter an order for her reasonable attorney fees incurred for this appeal. This court is without jurisdiction to award attorney fees, (Buehler v. Buehler (1940), 373 Ill. 626, 628, 27 N.E.2d 466, 467; In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 328, 523 N.E.2d 573, 581.) This matter is properly decided by petition brought before the trial court. Stockton, 169 Ill. App. 3d at 329, 523 N.E.2d at 581.

In conclusion, we reverse the order of the trial court dividing the marital property and remand this cause for reconsideration consistent with this opinion.

Reversed and remanded with directions.

LUND and GREEN, JJ., concur.