author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL JONES, Defendant-Appellant.
    Second District
    No. 2 — 91—1294
    Opinion filed May 6, 1993.

      G. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

After a bench trial, defendant, Michael Jones, was convicted of unlawful possession of weapons by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a)) and sentenced to three years’ probation. On appeal, defendant argues that the trial court manifestly erred in denying his motion to suppress evidence seized pursuant to a search that followed his warrantless arrest. We hold that, because the arresting officer had probable cause to believe that defendant was obstructing or resisting a peace officer (see Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1), the seizure of the evidence was the result of a valid search incident to arrest. Therefore, we affirm.

On the evening of August 13, 1990, defendant was arrested on the property of the Fairgrounds housing project in Rockford. Later that evening, at the Rockford Public Safety Building, the police searched defendant and discovered four 20-gauge shotgun shells on his person. Before trial, defendant moved to suppress the evidence.

At the hearing on defendant’s motion, Officer Jeffrey Houde of the Rockford police department testified that, at about 10 p.m. on the evening of August 13, 1990, he and Officer Simon Solis, who were working together in a marked patrol car, were dispatched to the parking lot of the Fairgrounds project in the 1000 block of School Street. The dispatcher told them that an unknown informant had telephoned the police to report that five or six black males, one of whom was carrying a shotgun, were exiting a light blue van in the lot.

As Houde and Solis pulled into the parking lot and stopped the car, they observed a light blue Chevrolet van in the lot, about 50 feet away from them. Four black men appeared to be entering the van; one of these men, defendant, was near the front passenger door. At first, Houde focused his attention on a man later identified as Alex Woods, who was exiting the van’s driver’s door and reaching into his belt. Houde and Solis exited their squad car. Apparently aware of the squad car’s presence, the four black men took off running from the area of the van. Houde, who believed that he had grounds to make an investigatory stop of the men, identified his office and called out to the men to halt. By now, three or four other squad cars were nearby.

After the order to halt, Woods fled west over a fence. Defendant kept running south. Houde, who believed that defendant was “obstructing” him, and Officer Robert Verruchi started chasing defendant. Houde was about 10 to 15 yards from defendant when the chase began. He chased defendant for about a “city block,” including around the side of an apartment building. Defendant stopped and sat on a chair. Houde and Verruchi ordered defendant to stop, handcuffed him,- and put him into a squad car. Directly afterwards, Houde ran to help Solis deal with resistance from Woods. Houde did not search defendant at the scene.

At the hearing, Houde acknowledged that, other than disobeying Houde’s order to halt, defendant did nothing that appeared illegal. Defendant did not appear to be carrying anything as Houde chased him. Houde acknowledged that he reviewed and approved a report that Solis, a less experienced officer, wrote about three or four hours after the incident. The report stated that, upon their arrival, Houde and Solis saw four or five black men exiting the van. Houde testified that he believed his testimony was consistent with the report. He could not recall how closely he had reviewed Solis’ report.

The parties stipulated that Rockford police officer Alan Asche would testify that, after defendant was taken into custody on August 13, 1990, a police search recovered four shotgun shells from defendant’s front pants pocket.

Officer Verruchi testified that, on the evening of the arrest, he drove his squad car to the Fairgrounds project parking lot, arriving alone about a minute after Officer Houde. Houde radioed Verruchi that Houde had started chasing defendant. As Houde ran south in back of the buildings in the 1000 block of Hess Court, Verruchi ran south in front of these buildings. He saw defendant come out from between two buildings and sit down. Verruchi ordered defendant to stop; defendant complied. Two or three seconds after seeing defendant, Verruchi saw Houde, who was right behind defendant. Verruchi helped Houde to handcuff defendant. He put defendant in a squad car but did not search defendant on the scene. At trial, Verruchi stated that he did not know whether any other officer searched defendant at the time. After defendant was in the squad car, Verruchi went to assist Solis.

The trial judge denied defendant’s motion to dismiss, holding that, at the time of the arrest, the police had probable cause to believe that defendant was guilty of obstructing a police officer. The trial judge explained that the crucial factor was defendant’s flight; had defendant not run from the police, the judge would have granted the motion to suppress.

At trial, the parties stipulated that in 1982, defendant had been convicted of burglary. The State called Officer Houde, whose testimony in the main repeated that which he had given at the suppression hearing. Officer Houde also explained that, as best he could recall, the suspects began running as the officers were exiting the squad car and ordering the men to halt. It was possible that defendant started to run before Houde did. Houde acknowledged that he could not say for certain whether the suspects started running because they saw the police cars or only because they heard the officers shout at them to stop. In chasing defendant, Houde passed about four buildings and saw defendant change direction twice. Apparently, defendant stopped running because he was tired; he was sweating when apprehended.

Officer Verruchi testified as he did at the suppression hearing. He stated that, by the time he arrived at the parking lot, Officer Houde had already started to chase defendant.

Officer Asche testified that, on the evening of August 13, 1990, he and another officer proceeded to the parking lot, where they observed defendant being apprehended. Before defendant was placed into Asche’s squad car, a third officer very briefly patted down defendant before the officers went to aid Solis. The police recovered nothing from defendant on the scene. Later that evening at the public safety building, Asche recovered four 20-gauge shotgun shells from defendant’s front pants pocket.

The trial court refused to change its decision on the motion to suppress. The court found defendant guilty, denied his post-trial motion, and sentenced him to three years’ probation.

On appeal, defendant argues that the shells should not have been allowed into evidence because they were the product of an arrest without probable cause. Defendant concedes that Officer Houde’s order to halt was lawful and that the arrest would have been valid had the officers had probable cause to believe that defendant knowingly disobeyed the command to halt.

However, defendant argues that the weight of the evidence demonstrates that defendant took off running because he saw the police cars, and not because he heard any order to halt. Defendant notes testimony from which, he argues, the trial court should have inferred that the four suspects took off running before the police gave the order. Thus, because Officer Houde’s belief that defendant was obstructing a police officer was based on defendant’s failure to heed a lawful warning, defendant reasons that the timing of his flight negates any conclusion that there was probable cause to arrest defendant.

We conclude that the trial judge did not manifestly err in finding that, at the time of the arrest, the facts known to the police gave them probable cause to believe defendant was obstructing Officer Houde. As defendant raises no other grounds for reversal, we conclude that the shells were properly admitted as the product of a search incident to a lawful arrest.

A trial court’s ruling on a motion to suppress will not be reversed unless it is manifestly erroneous. (People v. Spann (1992), 237 Ill. App. 3d 705, 708.) A police officer has probable cause to make an arrest when the totality of circumstances known to the officer would permit a reasonably prudent person to believe that the suspect has committed or is committing a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525; Spann, 237 Ill. App. 3d at 708-09.) Because the test for probable cause is based on the facts known to the officer at the time of the arrest, facts unknown to the officer at the time regarding a defendant’s subjective intent are not relevant to a probable-cause determination. Village of Lincolnshire v. DiSpirito (1990), 195 Ill. App. 3d 859, 865.

Thus, the crucial issue here is not whether defendant actually intended to resist or obstruct the police, but whether the trial court properly concluded that the facts known to the officers gave them probable cause to believe defendant knowingly resisted or obstructed authorized police actions.

Here the trial court concluded that Officer Houde had probable cause to believe that, because defendant attempted to escape the police after a lawful order to halt, defendant “knowingly resisted] or obstructed] the performance by one known to the person to be a peace officer of any authorized act within [the officer’s] official capacity.” (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1.) Defendant concedes that Officer Houde’s order to halt was an “authorized act” because it was a legitimate exercise of Houde’s investigative authority. (See generally Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, he argues that the evidence shows he started running before Houde gave the command. Thus, he reasons, his flight was not in defiance of police authority, but was merely a reaction to the presence of the police. We disagree.

The evidence enabled the trial court to conclude that Officer Houde ordered defendant to halt, but defendant kept on running. Indeed, assuming arguendo that Houde somehow had no reason to believe that defendant heard the original order, defendant’s continued attempts to elude Houde gave Houde probable cause to believe defendant was obstructing the performance of Houde’s investigative duties. It is well settled that such flight is a form of resisting or obstructing a police officer. See People v. Johnson (1983), 94 Ill. 2d 148, 158; People v. Holdman (1978), 73 Ill. 2d 213, 222, cert, denied (1979), 440 U.S. 938, 59 L. Ed. 2d 496, 99 S. Ct. 1285.

The exact timing of defendant’s flight is not crucial. Assuming he began to run before Houde’s order to halt, the court could conclude that he responded to the order by continuing to flee. Even if defendant’s original motivation for flight was the mere presence of the police, Officer Houde had probable cause to believe that defendant’s continued evasion was in knowing defiance of the order to halt. Defendant’s arrest was lawful, and the court properly denied his motion to suppress.

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

Affirmed.

WOODWARD and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COLWELL

license: Public Domain

text:
    STEVEN KMOCH, Plaintiff-Appellant, v. MICHAEL KLEIN et al., Defendants-Appellees.
    Second District
    No. 2—92—0608
    Opinion filed May 20, 1993.
    H. Kent Heller, of Heller, Holmes & Associates, P.C., of Mattoon, for appellant.
    Michael T. Byrne, of Clarendon Hills, for appellee Michael Klein.
    Esther Joy Schwartz, of Stellate & Schwartz, Ltd., of Chicago, for appellee Allendale.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiff, Steven Kmoch, appeals the circuit court’s order dismissing with prejudice his complaint against defendants, Michael Klein and Allendale, due to plaintiff’s failure to provide discovery (see 134 Ill. 2d R. 219(c)). Plaintiff contends that the trial court abused its discretion in dismissing his complaint as a discovery sanction.

Plaintiff filed his complaint April 16, 1990. The complaint alleges that during February 1988 plaintiff was a live-in student at Allendale, a school for disabled and handicapped children. Plaintiff was severely emotionally disturbed at that time. Defendant Klein was a child-care worker employed by Allendale. Klein sexually molested plaintiff while plaintiff was a resident of Allendale. The molestation caused severe mental and emotional damage to plaintiff. Count I of the complaint alleged battery against Klein. Count II alleged that Allendale knew that Klein suffered from sexual confusion, but failed to counsel or control him and allowed him to be alone with plaintiff under circumstances which would facilitate a sexual assault.

The common-law record contains more than 500 pages although the cause has never been resolved on its merits. The cause developed into a course of procedural wrangling over pleading and discovery issues after the filing of the complaint. The procedural wrangling consisted of such matters as motions for default, motions for sanctions, an interlocutory appeal which was ultimately dismissed, and disputes over deposition dates, production of documents, answers to interrogatories, and trial date continuances. More than 40 filings and court dates are reflected in the chronological listing of the trial court record.

An order was entered on October 17, 1991, requiring plaintiff to comply with outstanding written discovery within 21 days. Defendant Allendale filed a motion to compel plaintiff to comply with outstanding discovery, a motion for sanctions, and a motion for extension of time to disclose expert witnesses on November 25, 1991. The trial court entered an order on that date ordering plaintiff to respond to outstanding discovery in 10 days and continuing the trial date to March 16, 1992.

Allendale filed another motion for sanctions on December 3, although plaintiff’s time to answer discovery pursuant to the November 25, 1991, order had not yet run. Plaintiff apparently answered the interrogatories on December 4, 1991. (The answers themselves are not contained in the record on appeal. A copy of the answers is attached as an exhibit to plaintiff’s motion to vacate the dismissal.)

In response to question four, plaintiff stated that his injuries consisted of ‘‘[mjental/emotional disturbance.” In response to question five, asking for the names of treating and consulting physicians, plaintiff listed the following:

“Dr. Carol Padilla, Menninger, Topeka, Kansas Dr. Glade, Menninger, Topeka, Kansas Dr. Stuart Crane, Menninger, Topeka, Kansas Dr. Jeckel, Champaign, Illinois”

In response to question six, asking whether plaintiff had ever been a patient at a hospital, he listed Carle Pavilion, Champaign, Illinois, and the Menninger Clinic.

On December 9 the court entered an order providing that it would monitor the status of discovery on December 30 unless defendant received medical releases and continuing the trial date to May 11,1992.

Allendale then moved for and was granted leave to take the depositions of Doctors Padilla, Glade, Crane and Jeckel. Allendale also filed another motion to compel and for sanctions. This motion alleged that plaintiff’s answers regarding his treating physicians were incomplete and that defendant had become aware of numerous “treaters,” both before and after the alleged occurrence which plaintiff did not disclose in his answers to interrogatories. Defendant argued that plaintiff was emotionally disturbed before he came to reside at Allen-dale. Thus, the extent to which his alleged mental and emotional injuries were caused by the alleged sexual assault or were preexisting conditions was a critical issue in the case.

Specifically, Allendale alleged that it became aware of four “additional treaters who provided psychological treatment after the occurrence” (emphasis in original) and who were excluded from plaintiff’s answers:

“1. Dr. Hannum;
2. Champaign County Mental Health Center;
3. Janice Aul, M.S.W.; and
4. Carle Pavilion.”

Defendant listed 11 entities which allegedly provided treatment to plaintiff prior to the occurrence:

“1. Robert Brunner, M.D.;
2. William Pigott;
3. Ron Rothschild, L.C.S.W.;
4. Steve Young, M.D.;
5. William Rowley, M.D.;
6. Dr. Riggs;
7. Champaign County Mental Health Center;
8. Mercy Hospital;
9. Various social workers and psychiatrists in Champaign County schools;
10. Unknown physician (EEG); and
11. Unknown physician (MRI).”

Allendale’s motion argued that plaintiff’s noncompliance was unreasonable as a matter of law and requested the court to dismiss the action as a sanction for noncompliance.

The court ordered plaintiff to “amend his answers to interrogatories within 30 days to reflect all prior and subsequent treaters” on March 19, 1992. The court took defendant’s request for sanctions under advisement, struck the trial date, and set the matter for status of compliance with discovery on April 23.

Plaintiff filed a response to defendant’s motion which included the affidavit of Betty Kmoch, plaintiff’s mother. The response and affidavit alleged the following. During this time plaintiff was a patient at the Menninger Clinic. Betty Kmoch had visited with her son and spoken to him over the phone, and, in her opinion, he was emotionally unable to provide all the information requested by Allendale. Betty Kmoch and her husband thus cooperated with plaintiff’s counsel to provide answers to the discovery requests, and the answers provided were true and correct to the best of their ability.

Two of the witnesses specifically listed in Allendale’s motion, Dr. Hannum and Janice Aul, were employees of Dr. Jeckel, who was disclosed. Carle Pavilion is the name of an institution rather than a “physician” and was disclosed in response to the question about hospitals. Plaintiff’s parents have no knowledge about any care provided to plaintiff by the Champaign County Mental Health Center. Robert Brunner was a family practitioner who provided no psychological or psychiatric care. On information and belief, William Pigott was an employee of the Champaign city schools who administered tests but provided no treatment. Ron Rothschild was believed to have been a graduate student at the University of Illinois who may have provided some services to plaintiff while the latter was a middle school student, but who was neither a psychologist nor a psychiatrist. Plaintiff’s parents had no knowledge regarding Steven Young or William Rowley, who they speculated may have seen plaintiff while he was a student at Allendale. Dr. Riggs, of the Christie Clinic in Champaign, performed testing at the request of Dr. Jeckel but provided no treatment. Although plaintiff admitted himself to the emergency room of Mercy Hospital, that institution provided no psychiatric care, but merely referred plaintiff to Dr. Jeckel.

Plaintiff’s parents believed that no psychiatrists were employed by the Champaign city schools. Finally, an EEC and an MRI were arranged by Allendale. The persons administering the tests were probably technicians and would not have been the persons interpreting the tests.

The court dismissed the cause with prejudice on April 23, finding that “plaintiff’s non-compliance with discovery was willful and without justification.”

Plaintiff filed a motion to vacate the dismissal, which the court denied. Plaintiff then perfected this appeal.

Plaintiff’s sole issue on appeal is that the court abused its discretion by dismissing the action with prejudice as a discovery sanction. Defendant responds that the court’s action was appropriate where plaintiff’s noncompliance was unreasonable.

Supreme Court Rule 219(c) authorizes the trial court to impose sanctions, including dismissal of the action, for a party’s unreasonable refusal to comply with discovery. (134 Ill. 2d R. 219(c).) Imposing sanctions is a matter within the trial court’s discretion, and its orders should not be disturbed absent an abuse of discretion. (Zimmer v. Melendez (1991), 222 Ill. App. 3d 390, 395.) The purpose of sanctions is to accomplish discovery, not to punish a litigant who has not been diligent in complying with discovery. (Wegman v. Pratt (1991), 219 Ill. App. 3d 883, 891.) The harsh sanction of dismissal should be used only as a last resort to enforce the discovery rules and should be set aside whenever a trial on the merits can be had without hardship or prejudice. Wegman, 219 Ill. App. 3d at 891; Nehring v. First National Bank (1986), 143 Ill. App. 3d 791, 803.

In Nehring, this court reversed the dismissal of the action under Rule 219(c). There, plaintiff, for nearly two years, failed to appear for his deposition and failed to produce documents despite numerous requests. Plaintiff eventually did produce some documents and appeared for his deposition. At his deposition, plaintiff revealed the existence of additional potentially relevant documents. Plaintiff stated that he had not produced them because they were “not important.” Moreover, he could not then produce the documents because they had been stolen. In reversing the trial court’s dismissal of the action, we found that some sanction was appropriate for plaintiff’s belated compliance with discovery, but that dismissal was too harsh a sanction where plaintiff had complied with discovery to the best of his ability. (143 Ill. App. 3d at 799.) We noted that the additional documents described by plaintiff related to a matter, plaintiff’s ownership of certain silver coins, which defendant did not dispute. Thus, defendant was unable to establish prejudice from the nondisclosure of these documents, or from plaintiff’s belated compliance with discovery. 143 Ill. App. 3d at 799-800.

The instant case is similar to Nehring. There is no question that plaintiff’s compliance with discovery was untimely and, to some extent, incomplete. Undoubtedly some sanction is appropriate. However, the ultimate sanction of dismissal was unwarranted and an abuse of discretion under the circumstances.

It appears that the trial court never seriously considered a less severe sanction as a means to compel compliance. Rather, it appears that defendant used plaintiff’s technical noncompliance as a means to obtain dismissal of onerous litigation. Defendant’s motion for sanctions reveals that it was aware of all the entities which plaintiff allegedly failed to disclose and to some extent already had records relative to their contact with plaintiff. It is inconceivable that defendant could claim prejudice from plaintiff’s failure to disclose entities of which defendant was already aware.

In addition, defendant never disputed the allegations of plaintiff’s mother that the vast majority of entities listed in its motion to compel were not directly involved in the psychological or psychiatric treatment of plaintiff. Defendant’s interrogatories specifically requested the identity of treating physicians. However, a number of the entities listed in its motion appear to be social workers or medical technicians. In addition, defendant objects to plaintiff’s failure to list Carle Pavilion as a treating physician. It should be obvious that Carle Pavilion is not a physician. Moreover, plaintiff listed this institution in response to question five about hospitals. Other than unsupported speculation that there may be additional treaters of which defendant is unaware, defendant has not demonstrated how it has been prejudiced by the alleged incompleteness of plaintiff’s responses.

Additionally, although we place little weight on plaintiff’s mother’s lay opinion of her son’s emotional state, we note that plaintiff’s emotional condition may have been a factor in plaintiff’s failure to comply timely with discovery. It is precisely plaintiff’s mental and emotional condition which is at issue in this action.

Defendant complains that plaintiff never filed supplemental answers to interrogatories, but instead attempted to defend his original exclusion of some names. This argument misses the mark. Defendant already had the names it claimed plaintiff omitted. The only issue at that point was the reasonableness in making the initial omission. Defendant claimed it was entitled to sanctions for plaintiff’s unreasonable conduct, and plaintiff was entitled to show that his response was in fact reasonable. Since defendant already had the names of the alleged additional treaters, no reasonable claim of prejudice to defendants can be made. Finally, the thrust of plaintiff’s response was that the vast majority of the entities listed by defendant were not in fact treating physicians and thus disclosure was not required.

We note that the court also dismissed the action as against defendant Klein, although Klein apparently never filed any discovery and never filed a motion for sanctions. The order of dismissal must be reversed as to Klein as well.

We recognize the responsibility of the trial court for the proper management of its caseload to insure timely, accurate, and fair dispositions, and we sympathize with the trial court’s frustration with this case. However, the ultimate sanction of dismissal of the action is not warranted where defendant has not been prejudiced and a trial on the merits can be had.

For the foregoing reasons, the judgment of the circuit court dismissing the action with prejudice is reversed, and the cause is remanded with directions to the trial court to conduct a hearing and impose sanctions by awarding attorneys fees to defendants’ attorneys for time spent by them in the trial court obtaining compliance with discovery rules and court orders.

Reversed and remanded with directions.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE GEIGER

text:
      In re MARRIAGE OF DONNA J. SANDA, n/k/a Donna J. Seward, Petitioner-Appellee and Cross-Appellant, and KARL L. SANDA, Respondent-Appellant and Cross-Appellee.
    Second District
    No. 2 — 92—0690
    Opinion filed April 27, 1993.
    Rehearing denied June 1, 1993.

      Dolores A. Timko and Lyle B. Haskin, both of Haskin & Taylor, P.C., of Wheaton, for appellant.

      Stephen M. Deitsch, of Law Offices of Stephen M. Deitsch & Associates, of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The respondent, Karl L. Sanda, appeals from the court’s award of attorney fees to the petitioner, Donna J. Sanda, n/k/a Donna J. Seward, in this post-judgment dissolution of marriage case. The respondent argues on appeal that the court erred (1) in reopening proofs after granting his motion for a directed finding; (2) in awarding attorney fees pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508(b)), where the petitioner did not sufficiently prove that the fees requested were reasonable; and (3) because there was no hearing held to determine if the respondent failed to comply with a court order or that his failure to comply was without cause or justification.

The following are the pertinent facts for this appeal. On September 15, 1988, a judgment for dissolution of the parties’ marriage was entered following a trial. On May 3, 1991, one of the petitioner’s attorneys, Terry A. EM, filed a petition for post-decree enforcement attorney fees (hereinafter EM fees petition) against the respondent, pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508(b)). On May 6, 1991, another attorney for the petitioner, Arthur G. Jaros, Jr., filed a petition for attorney fees (hereinafter Jaros fees petition) against the respondent for three post-judgment matters.

A hearing on the petitions for fees was held on September 18, 1991. On the EM fees petition, Mr. EM testified in narrative form that he represented the petitioner in certain post-judgment orders which culminated in an agreed order. He explained to the court his office procedure regarding his time slips, which were filed with his petition for fees. He testified that the fee petition pertained to his efforts in representing the petitioner in enforcing certain court orders against the respondent. He requested an hourly rate of $125 per hour for his time. He also stated that some of his clients are billed at $200 per hour. He was not cross-examined by the respondent.

The respondent moved for a directed finding, arguing that the EM fees petition and accompanying testimony failed to include the necessary “elements of proof,” contained in the Rules of Professional Conduct (134 Ill. 2d R. 1.5). Mr. EM argued that the factors concerning attorney fees in Rule 1.5 do not apply to section 508(b) fees and that he was only required to show that a court order was violated and needed to be enforced and that the fees in the enforcement were reasonable and necessary. The court, sue sponte, offered to allow Mr. Ekl to reopen the proofs. When Mr. Ekl did not agree to do so, the court granted the respondent’s motion for a directed finding.

Mr. Jaros testified that he had represented the petitioner since 1986, that his fee petition sought payment for services rendered in conjunction with post-judgment disputes at the ordinary and customary rates that he normally charges his clients. Mr. Jaros also testified as to why his actions on behalf of the petitioner were necessary, and the results accomplished by his representation. The respondent moved for a directed finding on the same grounds as he had on the Ekl petition. The court reserved ruling on the Jaros fee petition and on the respondent’s motion for a directed finding. The court also granted Mr. Ekl permission to file a motion to reconsider.

On September 25, 1991, the court heard arguments on the petitioner’s motion to reconsider the judgment on the Ekl fees petition, the respondent’s motion to strike the petitioner’s motion to reconsider, and the petitioner’s objection to the respondent’s motion for a directed finding on the Jaros fees petition.

After arguments, the court reasoned that since the Jaros fees petition was based on section 508(b), Mr. Jaros had provided sufficient evidence to survive the respondent’s motion for a directed finding. With respect to the Ekl fees petition, the court made a similar finding that because the petition was brought under section 508(b), “certain elements need not be proved,” and it vacated the directed finding on the petition. The respondent renewed his objection to the sufficiency of the petitioner’s fees petitions and declined to further participate in the proceedings, believing that to do otherwise would waive the “error in the court.”

On May 14, 1992, the court entered its memorandum opinion and order which awarded $8,638.75 to the petitioner on the Ekl fees petition, and $18,297.80 on the Jaros fees petition. In that memorandum opinion, the judge stated, in part:

“[Bjased upon the evidence presented, based upon the court’s own knowledge of and familiarity with the case over a long period of time, based upon the court’s own knowledge of the fees customarily charged in Du Page County, based upon the skill and standing of both attorneys in the legal community and based upon the complexity of the matter and the degree of responsibility of the attorneys involved as well as the benefit of their efforts which resulted to the client, as well as a review of all records generated, the Court finds that the fees of each [attomey] were reasonable and the services performed were necessary, with the exception of certain disallowances. There being no evidence to the contrary, the Court finds that the actions of [the respondent] which brought the Post-Judgment litigation before the Court were without cause of [sic] justification.
To deprive [the petitioner] of her right pursuant to Section 508(b) to attorneys fees here because of procedural irregularities which could be and were remedied would, in this Court’s opinion, be to eviscerate Section 508(b) and ignore the clear legislative intent of the statute.”

On June 12, 1992, the respondent filed a timely notice of appeal, and on June 26, 1992, the petitioner filed a cross-appeal.

The respondent first argues oh appeal that the court erred in reopening the proofs. Our review of the record indicates that the court did not reopen the proofs, but merely offered Mr. Ekl the opportunity to reopen the proofs. When Mr. Ekl did not immediately do so, the court noted that Mr. Ekl declined the opportunity and granted the respondent’s motion for a directed finding. The court subsequently allowed a hearing on Mr. Ekl’s motion to reconsider and allowed Mr. Jaros to argue why the respondent’s motion for a directed finding should not be granted. In light of there being no perceived error relating to the reopening of the proofs, we proceed with this opinion addressing the remaining issues raised by the respondent.

The respondent next argues that the petitioner failed to prove that the fees generated by her attorneys were reasonable or necessary and that, therefore, he was entitled to a directed finding as a matter of law. Specifically, the respondent argues that the following criteria should have been pleaded by the petitioner and considered by the court in determining the allowance of attorney fees: (1) the relative financial position of the parties; (2) the skill and standing of the attorneys employed; (3) the importance, novelty and difficulty of the questions raised; (4) the degree of attorney responsibility involved from a management perspective; (5) the time and labor required; (6) the usual and customary charge in the community; and (7)' the benefits resulting to the client.

The respondent argues that in the Ekl fees petition and the evidence presented thereupon, Mr. Ekl provided no evidence concerning the financial positions of the parties; no evidence on the importance, novelty or the difficulty of the questions involved in the controversy; and no evidence on the customary charge in the community. The respondent farther argues that the Jaros fees petition and its associated testimony were similarly deficient.

The petitioner argues that a party does not need to present evidence about the relative financial positions of the parties when pursuing fees under section 508(b). She also argues that certain factors relating to an attorney’s fees petition, such as the nature of the controversy and the skill of the attorney, may have become evident during earlier proceedings before the trial court and need not be proved independently.

Section 508(b) provides that “[i]n every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Ill. Rev. Stat. 1991, ch. 40, par. 508(b).) Under section 508(b), a trial court has no discretion as to whether to award fees and costs, if it finds that the underlying failure to comply with an order was without cause or justification. (In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 328.) Its only discretion in this regard extends to its determination of the amount of reasonable fees.

The matter of fixing fees is one of the few areas in which the trial judge may rely on the pleadings, affidavits on file and his own experiences. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1118.) Factors such as the nature of the controversy and skill of the attorney will become evident during proceedings, and no independent proofs need be made concerning such factors. (In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 443-44.) Also, under section 508(b), it is not necessary for the petitioning party to show an inability to pay, or the relative financial positions of the parties. (See In re Marriage of Irvine (1991), 215 Ill. App. 3d 629, 635.) However, such factors as the amount of time and labor involved in a case do not come out in the ordinary course of proceedings; thus, such factors require independent proof. Ackerman, 168 Ill. App. 3d at 444.

Here, attorneys Ekl and Jaros submitted itemized records in their verified petitions, detailing their time spent representing the petitioner in her post-judgment proceedings. They testified as to the purpose of their representation and the necessity of enforcing the dissolution order. The court stated that in reaching its determination of the fees awarded it considered the evidence submitted by the parties and took into account its own knowledge of the skills of the attorneys, the customary fees in Du Page County, the complexity of the subject matter and the results obtained for the client. Because it was not necessary for the petitioner to show her inability to pay (see Irvine, 215 Ill. App. 3d at 635), because the petitioner’s attorneys testified to and submitted verified records as to the time and labor involved in their representation, and given the court’s knowledge of the remaining pertinent factors that became evident during the proceedings, we cannot find that the court abused its discretion in awarding the attorney fees here because there was sufficient proof that the fees were reasonable and necessary. See Ackerman, 168 Ill. App. 3d at 444.

The respondent next argues that the court erred in granting relief under section 508(b) because there was not a sufficient showing that he failed to comply with the dissolution judgment or that any failure to comply was without cause or justification.

Under section 508(b), when one party to a dissolution does not fulfill a condition imposed upon him by a dissolution order, the party not in compliance has the burden to produce evidence of his cause or justification. (In re Marriage of Young (1990), 200 Ill. App. 3d 226, 231.) Here, the petitioner’s fee petitions alleged that the respondent failed to comply with the dissolution order and that his failure to comply was without cause or justification. Attorneys Ekl and Jaros also both testified to these facts. The respondent did not present any evidence to the contrary, and the trial court noted that fact in its memorandum order. Further, the court found that the actions of the respondent which brought the post-trial litigation before the court were “without cause [or] justification.” We find, contrary to the assertion of the respondent, that the court properly found that the respondent failed to comply with the dissolution order without cause or justification. See Young, 200 Ill. App. 3d at 231-32.

The respondent next argues that the court abused its discretion in granting the motion to reconsider on the Ekl fees petition, arguing that Ekl’s motion to reconsider tendered no new evidence.

An intended purpose of a motion to reconsider is to bring to the court’s attention errors in the court’s previous application of existing law. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 987.) Here, the petitioner argued to the court, after the directed finding, that a fee petition brought pursuant to section 508(b) does not have to establish every element necessary to sustain a section 508(a) petition. The court agreed with the petitioner, holding that a section 508(b) petition does not require proof of certain elements that are required in a section 508(a) petition, and the court granted the petition to reconsider on that basis.

Although the respondent notes that a different basis for granting the motion to reconsider was stated in the court’s memorandum order, this court will affirm the judgment of the lower court if it can find any basis in the record to affirm. (People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 853.) The record demonstrates that the court initially made a mistake in its application of the law concerning the requirements of a section 508(b) petition and properly reconsidered the issue upon the motion to reconsider. We do not find that the court abused its discretion in granting the petitioner’s motion to reconsider. See Kaiser, 164 Ill. App. 3d at 987.

The petitioner argues on cross-appeal that the court erred in denying fees and costs associated with Cook County case No. 90— CH — 8230. At the hearing on his fees petition, Mr. Jaros requested leave to file a certified copy of that decision, testifying it was brought to enforce the judgment of the dissolution order and to prevent the dilution of assets that were the subject of the dissolution order. The court did not allow Mr. Jaros to file the copy of the decision in case 90 — CH—8230 and denied the fees and costs associated with that case, reasoning that it was analogous to a collateral criminal case and did not involve the enforcement of a dissolution order.

The parties did not cite to any case authority in their briefs addressing the court’s basis for denying the fees on the Cook County case. As this court is not aware of any such limitation on section 508(b) petitions, and because section 508(b) states in part that “fi]n every proceeding for the enforcement of an order” the court may order reasonable attorney fees (emphasis added) (Ill. Rev. Stat. 1991, ch. 40, par. 508(b)), we find that the court erred in denying the fees without first allowing Mr. Jaros to file a certified copy of the Cook County case No. 90 — CH—8230. The court must determine if that case was brought to enforce the dissolution order and, if so, for a determination of reasonable attorney fees. See Ill. Rev. Stat. 1991, ch. 40, par. 508(b).

For the above reasons, we affirm the judgment of the circuit court of Du Page County to the extent that it awarded attorney fees. We reverse the court’s denial of fees stemming from the referenced Cook County case and remand for proceedings consistent with the above opinion.

Affirmed in part; reversed in part and remanded with instructions.

DOYLE and QUETSCH, JJ., concur.


author: JUSTICE GREEN JUSTICE COOK,

text:
    G T E NORTH, INCORPORATED, a/k/a General Telephone Company of Illinois, Plaintiff-Appellant, v. HENKELS AND McCOY, INC., Defendant-Appellee.
    Fourth District
    No. 4 — 92—0839
    Argued March 23, 1993.
    Opinion filed May 6, 1993.
    COOK, J., specially concurring.

      Alfred B. LaBarre (argued), of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellant.
    Karen L. Kendall and Bradley S. McMillan (argued), both of Heyl, Royster, Voelker & Allen, of Peoria, and Frederick P. Velde and Kurt M. Koepke, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This case involves the operation of the Construction Contract Indemnification for Negligence Act (Act) (see Ill. Rev. Stat. 1991, ch. 29, par. 60.90 et seq.), sections 1 and 3 of which, respectively, state as follows:

“With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.” Ill. Rev. Stat. 1991, ch. 29, par. 61.
“This Act does not apply to construction bonds or insurance contracts or agreements.” Ill. Rev. Stat. 1991, ch. 29, par. 63.

On December 9, 1991, plaintiff GTE North, Inc., a/k/a General Telephone Company of Hlinois (Owner), filed suit in the circuit court of Morgan County against defendant Henkels & McCoy, Inc. (Contractor). Owner sought a declaration that an agreement under which Contractor was constructing a building for Owner required Contractor to defend Owner in a pending case. In that suit William H. Byus, an employee of Contractor, was suing Owner to recover damages for injuries Byus received while working on the project which was the subject matter of the agreement between Contractor and Owner. Negligence was charged. On September 11, 1992, the circuit court entered a summary judgment for Contractor, declaring that Contractor was required neither to defend Owner in the foregoing suit nor to indemnify Owner for any liability incurred from the suit. Owner appeals. We affirm.

Summary judgment is properly granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871; Wright v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill. App. 3d 680, 682, 593 N.E.2d 1070, 1072.) As summary judgment is appropriate only when a party is shown to be entitled to the judgment as a matter of law, no deference can be given on review to the decision of the trial court. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209.

This case turns upon the effect the Act has upon the agreement between Owner and Contractor. The record shows Owner requested a defense and Contractor refused to provide it. The parties agree that their agreement is a construction contract within the meaning of section 1 of the Act.

The significant portions of the agreement are paragraphs 14 and 15, the pertinent provisions of which state as follows:

“14. INDEMNIFICATION
14.1. Contractor agrees to indemnify and save harmless [Owner], its agents or employees, from and against all damages, claims[,] or liabilities without limiting the generality of the foregoing arising out of or related to this Agreement and the performance of any work thereunder, and from all claims, liens, or suits for labor and materials furnished contractor or any subcontractor, and all claims and suits for damages to persons, including [Owner’s] employees not specifically exempt herein except only such loss, claims or damage as shall have been proven, determined and found by a court of competent jurisdiction to have been proximately caused by the sole negligence of [Owner]. Contractor, with respect to this Indemnification, agrees to defend and-will defend on behalf of [Owner] any suits brought jointly against [Owner] and Contractor or against [Owner] alone, for or arising out of any or all of the aforesaid causes, and will reimburse [Owner] for attorney’s fees and other expenses incurred by [Owner] in defending any such suits.
15. INSURANCE
15.1 Contractor shall maintain in full force and effect during the performance of the work, the following insurance policies with insurance companies approved by [Owner].
15.1.1 Workmen’s Compensation and Occupational Disease * * * ***
15.1.2 Comprehensive General Liability insurance ***. *** [Not covering liability of Owner.]
15.1.3 Comprehensive Automobile Liability insurance ***. ***
15.1.4 The insurance provided pursuant to the foregoing shall include Contractual Liability coverage in accordance with Contractor’s obligations under Paragraph 14- above and, if underground work, demolition, blasting, excavation or rigging is involved, the applicable insurance policy exclusions relating thereto shall be deleted.” (Emphasis added.)

The most significant parts of the foregoing are the provisions which purport to require the Contractor to (1) indemnify Owner for liability for Owner’s negligence in connection with the construction project, (2) defend Owner in a suit arising from the foregoing, and (3) provide contractual liability insurance covering Contractor’s promises in regard to items (1) and (2).

Clearly, Contractor’s purported obligation to indemnify Owner is voided by the provision of section 1 of the Act. Any agreement of Contractor to defend Owner here would have to arise from paragraph 14.1 of the agreement. That paragraph is entitled “INDEMNIFICATION.” The purported agreement to defend is stated in these words: “Contractor, with respect to this Indemnification, agrees to defend ***.” Where a contract for indemnification provides for the indemnitor to defend the indemnitee, that duty is an aspect of the indemnification. Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 253, 423 N.E.2d 1170, 1178-79; Malone v. A.L. Mechling Barge Lines, Inc. (1978), 63 Ill. App. 3d 756, 768, 380 N.E.2d 497, 506.

The wording of the agreement seems to tie the purported agreement to defend to the indemnification provision of the agreement so closely that it comes within the prohibition of section 1 of the Act. However, Owner contends that section 3 of the Act, which exempts “construction bonds or insurance contracts or agreements” (see Ill. Rev. Stat. 1991, ch. 29, par. 63) from the prohibition of section 1 of the Act, justifies the agreement to defend here because paragraph 15 of the agreement requires Contractor to furnish certain types of insurance. This argument would seem to fail because Owner is not seeking to have an insurer furnish a defense but is seeking to require Contractor to do so. Owner is not seeking to sue Contractor for damages for failure to provide a defense.

In any event, no valid provision of the agreement required Contractor to furnish insurance which would provide Owner a defense to the instant suit by Byus. A long series of appellate court decisions concern the situation where, as here, in construction contracts, one party is required to indemnify the other for damages arising from the construction and also to require the indemnitor to furnish insurance. In all cases where the insurance to be provided is to be liability insurance protecting the indemnitee as an insured, that provision of the contract has been upheld against contentions that it violates section 1 of the Act. See Jokich v. Union Oil Co. (1991), 214 Ill. App. 3d 906, 574 N.E.2d 214; St. John v. City of Naperville (1987), 155 Ill. App. 3d 919, 508 N.E.2d 1128; Bosio v. Branigar Organization, Inc. (1987), 154 Ill. App. 3d 611, 506 N.E.2d 996; Zettel v. Paschen Contractors, Inc. (1981), 100 Ill. App. 3d 614, 427 N.E.2d 189.

Here, Contractor did not agree to provide insurance for Owner which would insure Owner for liability arising from the construction project which was the subject of the parties’ agreement. Rather, Contractor agreed to provide insurance which would insure Contractor for its contractual liability under its obligations under paragraph 14 of the agreement, which required Contractor to indemnify Owner and, “[in] respect to [that] Indemnification,” defend suits against Owner. The situation here was very similar to that in Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.

In Shaheed, a contractor for a construction project for the Chicago Transit Authority, when sued under the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.), brought a third-party complaint against a subcontractor for breach of the agreement between the contractor and subcontractor. Paragraph three of that agreement provided that the “ ‘Subcontractor shall maintain insurance in the following limits and cause a so-called contractual liability and/or hold harmless endorsement to be issued by the insurance company or companies insuring all the Subcontractors [sic] indemnity obligations under this agreement ***.’ ” (Shaheed, 137 Ill. App. 3d at 363, 484 N.E.2d at 551.) Paragraph five of the contract, which did not refer to the agreement to insure, provided that the subcontractor agreed to indemnify and hold harmless the contractor for all losses, damages and liability. Shaheed, 137 Ill. App. 3d at 363, 484 N.E.2d at 551.

The trial court found section 1 of the Act nullified any indemnification that was required under paragraph five of the agreement. It further found that paragraph three requiring insurance only for the indemnity obligations was void, since the only contractual indemnity obligation was found in paragraph five, which was also void. It therefore concluded that there was no contractual obligation to insure. In affirming the trial court’s ruling, the first district distinguished its holding in Zettel by noting that the agreement in that case was one to procure insurance against claims brought under the Structural Work Act and not one insuring an indemnity provision contrary to the Act. Zettel granted insurance against known risks, those falling under the Structural Work Act, while in Shaheed the insurance was “sought *** against a void agreement to indemnify.” Shaheed, 137 Ill. App. 3d at 365, 484 N.E.2d at 552.

In Motor Vehicle Casualty Co. v. G S F Energy, Inc. (1989), 193 Ill. App. 3d 1, 549 N.E.2d 884, a construction contractor had entered into a construction contract with an owner of property upon which the construction was to be performed. An employee of the contractor brought a Structural Work Act suit against the owner. The owner demanded the contractor’s insurance carrier defend it. The carrier brought action for a declaration that it had no duty to do so. The appellate court held that the provision of the agreement for construction which the owner relied upon was void under section 1 of the Act as far as its operation in that case was concerned because it was, in effect, an indemnity agreement. Accordingly, the appellate court held that insurance coverage against a void agreement was necessarily void, citing Shaheed. No contention was made that the contractor had breached an agreement to provide liability insurance covering the liability of the owner.

The difference between the Jokich, St. John, Bosio, and Zettel line of cases, where the agreement is for the indemnitor to also obtain liability insurance for the indemnitee, and the cases such as Shaheed and Motor Vehicle Casualty is set forth in Juretic v. U S X Corp. (1992), 232 Ill. App. 3d 131, 596 N.E.2d 810. In that case, an electrical contractor had agreed with an owner to dismantle certain facilities of the owner. An electrician working for the contractor brought action against the owner under the Structural Work Act. The owner filed a third-party complaint against the contractor, alleging in one count that the contractor had breached a portion of their agreement for the contractor to purchase insurance for the owner. The circuit court dismissed that count, and the owner appealed pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

The owner-contractor agreement in Juretic had an article headed by the word “Indemnity,” which was much the same as that here and also required the contractor to defend the owner. (Juretic, 232 Ill. App. 3d at 132-33, 596 N.E.2d at 811.) The agreement also had an article concerning insurance which, as here, required the contractor provide insurance covering the contractor’s obligations under the indemnification article of the agreement. Unlike here, the agreement also required the contractor to procure insurance which would insure both the contractor’s and the owner’s liability to pay damages arising from the work which was the subject of the agreement. The insurance article required that the owner be made an additional insured under the latter policy.

The Juretic court reversed the dismissal of the count, holding that (1) the portion of the insurance provision in regard to furnishing insurance to cover the obligations of the indemnity provision was void because it was “inextricably tied” to the void indemnity provision (Juretic, 232 Ill. App. 3d at 135, 596 N.E.2d at 812), and (2) the provision to provide insurance to cover the liability of both the contractor and the owner and to have the owner become an additional insured was valid. Zettel was cited. Accordingly, upon reversal the cause was remanded with directions to permit the owner to amend the count to conform to the opinion.

Thus, the appellate court decisions clearly set forth that in construction contracts where one party purports to indemnify the other, provisions such as those here — which insure the indemnitor for liability for not indemnifying or providing a defense to the indemnitee — are not valid, while provisions which require the indemnitor to provide liability insurance for the indemnitee, malting the indemnitee an insured under the policy, are valid. The supreme court has not spoken on this question, but the different treatment given by the appellate court in the two different situations is consistent with the supreme court’s analysis of the intent of the Act.

In Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, the supreme court upheld the provisions of section 1 of the Act in the face of a charge that it violated equal protection because no rational basis existed to distinguish construction contracts from other contracts which might contain indemnity agreements. The court reasoned that incentives to exercise care in the performance of construction contracts are more important than in regard to other types of contracts because of the danger inherent in construction work. The court concluded that indemnity agreements were a disincentive to the exercise of care because such agreements relieved the indemnitee of the ultimate responsibility for its own carelessness.

Shortly after Davis, the supreme court decided Capua v. W.E. O’Neil Construction Co. (1977), 67 Ill. 2d 255, 367 N.E.2d 669. There, the court rejected a contention that section 1 of the. Act rendered indemnity or hold-harmless agreements in construction bonds void. The rationale of the decision was that (1) the legislature would not have included “construction bonds” in section 3 of the Act if agreements contained therein were to be prohibited by section 1 of the Act, and (2) section 3, by permitting such provisions in construction bonds and permitting insurance contracts to be viable, afforded injured parties a source of funds for recovery if the protected tortfeasor, who is a party to the contract, does not have financial resources to discharge a judgment against it.

Some uncertainty concerning the public purpose of the Act arises from the decisions in Davis and Capua, because both liability insurance and indemnity agreements negate incentive to be careful since they relieve the insured and the indemnitee from ultimate responsibility for their negligence. However, the two decisions, taken together, seem to express a policy in regard to indemnity agreements in construction contracts, which is as follows: (1) indemnity agreements, except in construction bonds and agreements to insure to protect the indemnitor from contractual liability, are void because the dominant aspect of these agreements is the disincentive to the exercise of care by the indemnitee which results; and (2) indemnity agreements in construction bonds and agreements to provide liability insurance for another party to the contract, even though that parly is an indemnitee, are valid because their dominant aspect is to afford a source of funds for persons tortiously injured in the work on the construction contract.

Thus, although the difference between the Johich line of cases and those which follow Shaheed may seem overly technical, they are consistent with the statements of the supreme court. Accordingly, although our reasons may seem overly technical, we conclude that existing precedent required the judgment of the trial court granting summary judgment to Contractor. We affirm that judgment.

Affirmed.

KNECHT, J., concurs.

JUSTICE COOK,

specially concurring:

I agree that the Contractor, despite the language of paragraph 14, has no obligation to indemnify or defend the Owner. The questions whether the Contractor breached any agreement to procure insurance, and whether any insurance procured by the Contractor covers the Owner, are not reached by this appeal, and it is unnecessary for us to determine whether we would follow Shaheed if we did address those questions. If we had to choose between the policy of providing incentives for owners to protect workers from injury (Davis, 61 Ill. 2d 494, 336 N.E.2d 881), and the policy of preserving supplemental sources of compensation (Capua, 67 Ill. 2d 255, 367 N.E.2d 669), we should choose the latter.


author: JUSTICE KNECHT

text:
    LEASHA RENEE BENNETT, a Minor, by Carlinville National Bank, her Guardian, Plaintiff-Appellant, v. KENNETH GENE LAHR, d/b/a Lahr’s Milk Service, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0694
    Opinion filed May 6, 1993.
    Thomas P. Burns, of Phelps, Kasten, Verticchio & Ruyle, of Carlinville, for appellant.

      Dennis E. Rose and Georgiann Oliver, both of Donovan, Rose, Nester & Szewczyk, EC., of Belleville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, Leasha Renee Bennett, a minor, represented by her guardian, Carlinville National Bank, appeals from the Macoupin County circuit court’s ruling granting defendant Kenneth Gene Lahr’s motion for summary judgment in a negligence action based on respondeat superior. She argues summary judgment was improper because the parent-child immunity doctrine ought not apply when the child’s injuries result from an automobile accident which occurred while her father was driving his employer’s vehicle during work hours. She also contends if immunity applies to these facts, her father should have been permitted to waive his immunity. We reverse the entry of summary judgment in favor of defendant. Based on the facts as presently outlined, this occurrence may fall outside the immunity doctrine. The mere fact that Leasha’s injuries occurred when she was riding with her father while he was delivering milk does not, as a matter of law, constitute a family purpose situation.

I. Facts

Leasha is the minor daughter of James E. Bennett, who was not a named party in the litigation. James worked for defendant Lahr in his business, Lahr’s Milk Service, as a driver. On August 7, 1987, Leasha rode in the bulk milk truck with James on his route. He picked up milk from various farms in Macoupin and Jersey Counties. Late that morning, James’ milk truck left the road and overturned. Leasha was injured. She sustained cuts, bruises, and trauma, and may need future medical treatment. As an agent of defendant, James allegedly operated the vehicle negligently.

The trial judge granted summary judgment in favor of defendant. He concluded the parent-child immunity doctrine, as implicitly adopted by the Illinois Supreme Court, bars a child from bringing an action against his or her parent for mere negligence, though an action may lie in the case of willful and wanton misconduct. If Leasha’s father, the employee, could not be held liable, his employer, defendant, also could not be liable.

II. Standard Of Review

Summary judgment should be granted only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); see also Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34, 564 N.E.2d 778, 780; Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 164, 540 N.E.2d 895, 899-900.) It is a drastic means of dismissing litigation and should be granted only when the “ ‘right of the moving party is clear and free from doubt.’ ” Logan, 139 Ill. 2d at 233-34, 564 N.E.2d at 780, quoting Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.

Entry of summary judgment is not within the trial judge’s discretion. In reviewing entry of summary judgment, the appellate court considers the facts and law related to the case as if the case were being heard for the first time. (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167; Illinois Municipal League Risk Management Association v. Seibert (1992), 223 Ill. App. 3d 864, 869, 585 N.E.2d 1130, 1134.) The issue raised in this appeal is whether, as a matter of law, the parent-child immunity doctrine precluded Leasha from bringing a negligence action against defendant based on the respondeat superior theory.

III. Parent-child Immunity Doctrine

Defendant provides a review of Illinois Supreme Court cases as demonstrating the court has adopted the parent-child immunity doctrine, which bars children or parents from maintaining actions against each other for mere negligence. (See Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 618-19, 131 N.E.2d 525, 531; Mroczynski v. Mc-Grath (1966), 34 Ill. 2d 451, 454-55, ,216 N.E.2d 137, 139; Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 170, 347 N.E.2d 705, 708; Gerrity v. Beatty (1978), 71 Ill. 2d 47, 49, 373 N.E.2d 1323, 1324.) Although we agree the court has implicitly adopted the doctrine, the issue is whether the family purpose exception to this doctrine, which was established by this district (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12), has been abolished by the Illinois Supreme Court.

In Schenk, the father brought a negligence action against his daughter to recover damages incurred when she ran into him while she was driving an automobile and he was a pedestrian. This court concluded the trial judge erred by granting defendant’s motion to dismiss because the incident was wholly unrelated to the family relationship. The duty which defendant daughter breached was the same duty owed to all pedestrians. Schenk, 100 Ill. App. 2d at 206, 241 N.E.2d at 15.

Public policy reasons expressed in Schenk as supporting the parent-child immunity doctrine were to maintain harmony, avoid strife, and insure a proper atmosphere of cooperation, discipline and understanding in the family. (Schenk, 100 Ill. App. 2d at 202, 241 N.E.2d at 13.) None of these concerns are evoked when there is no connection between the accident and the family relationship. Schenk, 100 Ill. App. 2d at 206, 241 N.E.2d at 15.

Defendant argues summary judgment was proper because the family purpose exception to the immunity doctrine is no longer available since the Illinois Supreme Court decision in Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355 (hereinafter Stallman Ill). In the initial ruling on appeal in Stallman v. Youngquist (1984), 129 Ill. App. 3d 859, 473 N.E.2d 400 (hereinafter Stallman I), a minor brought suit against her mother and another driver for prenatal injuries she allegedly sustained during a collision between her mother’s vehicle and another vehicle. The appellate court reversed the trial judge’s dismissal of plaintiff’s action which was based on the parent-child immunity doctrine. In doing so, the appellate court recognized the exception to the immunity doctrine which had been set out in a previous ruling by this district. This exception is applied when the injuries are unrelated to the objectives or purposes of the family. Stallman, 129 Ill. App. 3d at 864, 473 N.E.2d at 403.

On remand, the trial court again concluded the parent-child immunity doctrine applied to the case. In Stallman v. Youngquist (1987), 152 Ill. App. 3d 683, 689-92, 504 N.E.2d 920, 923-25 (hereinafter Stallman II), rev’d (1988), 125 Ill. 2d 267, 531 N.E.2d 355, the appellate court again reversed this ruling and concluded the immunity doctrine should be abolished and could be by courts of review because the Illinois Supreme Court had not adopted the immunity rule.

Defendant directs us to the following statement in the ensuing Illinois Supreme Court opinion in Stallman III:

“Insofar as Stallman I and Stallman II purport to effect a change in the status of the parental immunity doctrine as it existed before the appeal to the Stallman I court, the judgments are vacated.” Stallman III, 125 111. 2d at 271, 531 N.E.2d at 356.

Defendant argues this statement reveals the family relationship exception to the doctrine is no longer available because the Illinois Supreme Court vacated the first district’s ruling based on that exception. However, the quoted statement indicates only that the Stallman I and Stallman II rulings regarding parent-child immunity should not represent a change in previous case law.

We disagree with defendant’s contention that this exception was barred by the supreme court in Stallman III. The family purpose exception to the immunity doctrine was recognized well before the Stall-man III ruling. Therefore, the appellate ruling in Stallman I did not represent a change in the status of the parent-child immunity doctrine in this district. Further, the supreme court in Stallman III expressly stated:

“Neither the Stallman I court nor the Stallman II court adequately addressed the preliminary issue whether a cause of action by or on behalf of a fetus, subsequently born alive, may be asserted against its mother for the unintentional infliction of prenatal injuries. This court holds that such a cause of action shall not be recognized.
This holding makes unnecessary the consideration of the issue of the parental immunity doctrine. Accordingly, we do not consider defendant’s arguments concerning stare decisis and the doctrine of the law of the case, both of which were directed to the Stallman II court’s decision on the parental immunity doctrine. Insofar as Stallman I and Stallman II purport to effect a change in the status of the parental immunity doctrine as it existed before the appeal to the Stallman I court, the judgments are vacated.” (Emphasis added.) Stallman III, 125 Ill. 2d at 270-71, 531 N.E.2d at 356.

Defendant also directs us to an observation made in a recent ruling of this district that the “ongoing validity of this doctrine has recently been confirmed by the Illinois Supreme Court in Stallman [111].” (Lawber v. Doil (1989), 191 Ill. App. 3d 323, 326, 547 N.E.2d 752, 754.) The validity of the doctrine may have been confirmed by the Illinois Supreme Court; however, nothing in the Stallman III ruling requires courts of review to refuse to recognize previous exceptions to the doctrine, or to cease recognizing new exceptions when appropriate. The requirement recognized by this district that the injury must have been related to a family activity still exists and is relevant to the outcome of this case. We recognize the doctrine, but we also recognize the family purpose exception recognized in Schenk, which has never been overruled.

Defendant notes the fifth district recently abolished the immunity doctrine as it applied to automobile cases in Cates v. Cates (1992), 225 Ill. App. 3d 509, 517, 588 N.E.2d 330, 335, appeal allowed (1992), 146 Ill. 2d 624. Defendant argues, however, this ruling is erroneous because, contrary to the majority view in Cates, as a court of review it lacked the authority to recognize this exception to the doctrine because the Illinois Supreme Court had previously adopted the doctrine.

Although we express no view on the validity of the Cates ruling, we note the supreme court’s adoption of the doctrine does not automatically preclude courts of review from considering exceptions to the doctrine. The validity of the Cates ruling does not control the outcome of this case.

Plaintiff argues in her brief the parent-child immunity doctrine ought not bar her from bringing a negligence claim against defendant. She directs us to Lawber (191 Ill. App. 3d at 326, 547 N.E.2d at 754), in which this court relied on a rationale suggested by the fifth district for the parent-child immunity doctrine, i.e., the beneficiary of the tort action might ultimately be the negligent parent and not the injured child (see Chamness v. Fairtrace (1987), 158 Ill. App. 3d 325, 329, 511 N.E.2d 839, 841). This outcome undermines support for an exception to the immunity doctrine.

Initially, we note plaintiff’s brief incorrectly characterizes the Chamness reasoning as originating in the “Supreme Court.” Plaintiff contends the concern that her father could benefit from the litigation rather than her benefitting is diminished in this case because a guardian has been appointed on her behalf.

The more important distinction between this case and the parties in Lawber and Chamness is in this case plaintiff is alive and could benefit from damages awarded for her injuries, whereas the injured minors in Lawber and Chamness sustained fatal injuries in the accidents. They had not survived to benefit from any compensation which may have been awarded. Lawber, 191 Ill. App. 3d at 324, 547 N.E.2d at 753; Chamness, 158 Ill. App. 3d at 326, 511 N.E.2d at 839.

The facts, as presently developed, do not establish Leasha’s presence in defendant’s truck the day the accident occurred was related to her family relationship with James. Perhaps her presence was related to her family relationship. However, it is not for us to speculate, and it was premature to grant defendant’s motion for summary judgment. At this point, the duty owed to Leasha was the same duty owed to anyone riding in the milk truck. Suing Leasha’s father’s employer does not weaken family harmony and, because Leasha survives, she could directly benefit from any compensation received for the injuries she incurred as a result of the accident.

Leasha’s injuries may have been incurred as a result of an accident unrelated to her familial relationship with her father. The parent-child immunity doctrine does not automatically preclude her from bringing a claim against her father’s employer, the defendant.

IV. Waiver Of Doctrine

Plaintiff argues in the alternative this court should conclude the parent-child immunity doctrine can be waived. She directs us to the first district ruling in Perkins v. State Security Insurance Co. (1989), 192 Ill. App. 3d 103, 104, 548 N.E.2d 568, 568-69, in which the minor plaintiffs filed an action against their mother’s insurance company for injuries suffered as a result of a vehicular accident in which they were passengers of a vehicle driven by their mother.

The Perkins court reversed the trial court’s grant of summary judgment to the mother’s insurance company because the mother was not an uninsured motorist as to her children under her policy. It also reasoned because the defense of parent-child immunity was personal to the mother she could waive it and her insurance company could not assert it on her behalf to defeat the children’s claim. Perkins, 192 Ill. App. 3d at 106-07, 548 N.E.2d at 570.

Defendant correctly notes Leasha did not assert a claim her father waived his immunity protections. Although this argument poses a question this district has not reviewed, we will not do so because it was not a basis for entry of the summary judgment order.

V. Conclusion

This district recognizes an exception to the parent-child immunity doctrine when the injuries result from an activity outside and unrelated to the family relationship. No evidence was presented on this issue. The exception may be applicable. Further development of the facts is necessary. We reverse the trial judge’s entry of summary judgment in favor of defendant and remand this case for further proceedings. We decline to address whether Leasha’s father can waive immunity because this issue was not a factor in entry of the summary judgment.

Reversed and remanded.

McCULLOUGH and GREEN, JJ., concur.