author: JUSTICE MURRAY

text:
    JAMES CALHOUN, Plaintiff-Appellant, v. LEON C. RANE, DefendantAppellee.
    First District (5th Division)
    No. 1—91—3033
    Opinion filed August 28, 1992.

      Richard S. Connors, of Chicago, for appellant.
    Alholm & Monahan, of Chicago (Peter A. Monahan and Mark A. Kuchler, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

James Calhoun (Calhoun), plaintiff, appeals from an order of the trial court dismissing two counts of his three-count amended complaint. The action was filed against his former lawyer, Leon C. Rane (Rane), defendant. The matter still pends in the trial court on one count of Calhoun’s complaint against Rane. Jurisdiction is vested in this court by reason of the finding in the order of dismissal that “there is no just reason to delay enforcement or appeal of the order.” This language made the otherwise nonfinal order appealable. (See 134 Ill. 2d R. 304(a).) The facts are as follows.

Plaintiff’s complaint alleges that Calhoun retained Rane to represent him before the Illinois Industrial Commission (Industrial Commission) in regard to injury claims which arose from Calhoun’s employment. Calhoun alleges that although Rane filed petitions with the Industrial Commission, Rane allowed the petitions to be dismissed for want of prosecution, Rane failed to vacate said dismissals or otherwise reinstate the plaintiff’s claims, and Rane failed to inform him that his claims for compensation had been dismissed for want of prosecution. Calhoun also alleges that as a result of the above errors and omissions plaintiff lost his worker’s compensation causes of action and his entitlements for his injuries and medical expenses.

Calhoun further alleges that on May 17, 1989, V-k years after the dismissal of the Industrial Commission complaints, Rane wrote Calhoun a letter asserting that the plaintiff’s Industrial Commission complaints were still pending, and stated that “there was an offer of settlement, but that the claims could only be settled for an amount which would net the plaintiff between $400.00 and $500.00.”

Rane’s answer concedes that he is an attorney licensed to practice law in the State of Illinois. He also admits that he was consulted and employed by Calhoun to represent him as his attorney regarding two alleged injury claims purportedly arising from Calhoun’s employment.

Calhoun filed his first three-count complaint alleging professional malpractice, fraud, and the negligent infliction of emotional distress. The defendant responded with a motion to dismiss the plaintiff’s complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.

In reply to the defendant’s motion to dismiss, the plaintiff filed a response which conceded legal inadequacies with counts II and III, requesting leave to amend those counts. Plaintiff’s response otherwise objected to the defendant’s motion to dismiss count I. On December 4, 1990, a hearing was held in which plaintiff’s count I (professional malpractice) was allowed to stand, and counts II and III were stricken with leave to amend within 28 days.

Plaintiff filed an amended complaint, repeating the allegation of professional malpractice in count I, and alleging breach of fiduciary duty in count II, and wilful and wanton misconduct in count III. Count III included a prayer for punitive damages.

The defendant responded with another motion to dismiss counts II (breach of fiduciary duty) and III (wilful and wanton misconduct) of the amended complaint. The case proceeded to a full hearing on the motion with both parties submitting written briefs in support of their position on the issues.

On August 16, 1991, the trial court heard oral arguments on the motion to dismiss. The trial court ordered that counts II and III of the amended complaint be stricken. Plaintiff filed this timely appeal.

On appeal Calhoun presents the following issues for review: (1) Whether a complaint which contains a count which alleges a breach of fiduciary duty for acts arising out of an attorney-client relationship may state an independent cause of action from another count alleging professional negligence; and (2) whether a complaint which alleges that an attorney took affirmative actions 2xk years following the alleged malpractice, in an attempt to cover up those prior acts of malpractice, states an independent cause of action which is separately compensable from the malpractice action and for which the section 2 — 1115 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1115) prohibition against punitive damages does not apply.

For the following reasons, we affirm the decision of the trial court.

In reviewing a dismissal of an action under section 2 — 615, the reviewing court must accept all well-pled facts and reasonable inferences as true as well as interpreting the allegations of the complaint in a light most favorable to the plaintiff. (Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 542 N.E.2d 902.) A reviewing court must affirm the dismissal if it appears that no set of facts from the complaint could be proven that would entitle plaintiff to relief. Turner v. Rush Medical College (1989), 182 Ill. App. 3d 448, 537 N.E.2d 890.

BREACH OF FIDUCIARY DUTY COUNT

In his appeal Calhoun argues that the trial court erred in dismissing the breach of fiduciary duty count and the wilful and wanton count on the theory that they are separate and independent causes of action from the count alleging professional malpractice.

Count I alleged acts of professional negligence and count II alleged breach of a fiduciary duty. Calhoun maintains that a breach of fiduciary duty is a separate and independently compensable tort in Illinois. Calhoun argues that in ruling that plaintiff could not plead a cause of action for breach of fiduciary duty, separate and independent of the count for professional negligence, the trial court committed error. Conversely, Rane argues that although a party may simultaneously plead a cause of action for legal malpractice, breach of fiduciary duty and fraud, Calhoun’s breach of fiduciary duty claim fails to plead a cause of action.

Count I of the amended complaint alleges that Rane is an attorney, licensed to practice law in the State of Illinois, and that Calhoun employed Rane to represent him before the Industrial Commission for injuries Calhoun sustained through his employment. Count I further alleges:

“4. That it thereupon became and was the duty of the said defendant to counsel and represent the plaintiff according to the common and good practice of reasonably competent attorneys, but notwithstanding his aforesaid duties, the defendant negligently advised and represented the plaintiffs [sic] so that, as a direct and proximate result thereof, the plaintiff’s Industrial Commission claims were dismissed for want of prosecution (DWP) and that the plaintiff was therefore caused to and did lose his entire interest in compensation from his industrial injuries, without any consideration therefor, and the plaintiff was caused to, and will in the future, pay great sums of money to treat his industrial injuries without obtaining any right, title or interest in compensation from his employer, and the said plaintiff was caused other great and grievous losses as hereinafter specified.
5. That during the aforesaid period of counseling and representation, the defendant was guilty of one or more of the following negligent and/or incompetent acts or omissions:
(a) Advised and allowed the plaintiff’s Industrial Commission claims to be dismissed for want of prosecution without consideration thereof.
(b) Failed to advise the plaintiff to appear before the Industrial Commission to preserve his right to compensation for his industrial injuries.
(c) Failed to vacate the dismissal of the plaintiff’s claims for want of prosecution within the time period allowed by law.
(d) Failed to inform the plaintiff that his claims for compensation before the Industrial Commission has [sic] been dismissed for want of prosecution.
(e) Failed to advise the plaintiff to vacate the dismissal of said Industrial Commission claims within the time period allowed by law.”

Count II of the amended complaint realleges paragraphs 1 through 4 of count I. Count II further alleges:

“5. That by reason of the trust and confidence the plaintiff placed in the defendant pursuant to the attorney-client relationship, and by reason of the defendant’s continuing role as attorney for the plaintiff over a period of years, the defendant stood in a relationship of fiduciary to the plaintiff, and as such owed to the plaintiff all the fiduciary duties attendant thereto.
6. That the defendant breached his fiduciary duty to the plaintiff by one or more of the following acts or omissions:
(a) Advised and allowed the plaintiff’s Industrial Commission claims to be dismissed for want of prosecution without consideration thereof.
(b) Failed to advise the plaintiff to appear before the Industrial Commission to preserve his right to compensation for his industrial injuries.
(c) Failed to vacate the dismissal of the plaintiff’s claims for want of prosecution within the time period allowed by law.
(d) Failed to inform the plaintiff that his claims for compensation before the Industrial Commission has [sic] been dismissed for want of prosecution.
(e) Failed to advise the plaintiff to vacate the dismissal of said Industrial Commission claims within the time period allowed by law.”

Calhoun cites Coughlin v. SeRine (1987), 154 Ill. App. 3d 510, 507 N.E.2d 505, Central Bank — Granite City v. Ziaee (1989), 188 Ill. App. 3d 936, 544 N.E.2d 1121 and Lurz v. Panek (1988), 172 Ill. App. 3d 915, 527 N.E.2d 663, in support of his argument that in cases involving allegations of legal malpractice, Illinois has recognized that an injured plaintiff can plead separate counts alleging both professional negligence and a breach of fiduciary duty. Neither the defendant nor this court disputes the fact that it is possible to plead separate counts alleging both professional negligence and a breach of fiduciary duty.

A fiduciary relationship exists as a matter of law between an attorney and his client. (Coughlin v. SeRine (1987), 154 Ill. App. 3d 510, 507 N.E.2d 505.) Thus, in effect, any alleged malpractice by an attorney also evidences a simultaneous breach of trust; however, that does not mean every cause of action for professional negligence also sets forth a separate and independent cause of action for breach of fiduciary duty. In the present case, we find that Calhoun has not pled a cause of action for breach of fiduciary duty distinct from the alleged malpractice case still pending in the trial court. A duplicative count may be properly dismissed (Nagy v. Beckley (1991), 218 Ill. App. 3d 875, 879, 578 N.E.2d 1134), and as the aforementioned language of counts I and II demonstrates, the allegations in the two counts are virtually identical. Moreover, as the court in Smith v. Kurtzman (1982), 106 Ill. App. 3d 712, 714, 436 N.E.2d 1, 3 stated, “Mere failure to disclose or remedy the effects of prior acts of malpractice is not a tort distinct from the original malpractice from which it stems.”

Accordingly, for the reasons set forth above we find that the trial court properly dismissed count II of the plaintiff’s amended complaint.

WILFUL AND WANTON COUNT

To plead a cause of action for negligence or wilful and wanton misconduct, plaintiff must allege sufficient facts to establish the existence of a duty, a breach of that duty and an injury proximately resulting from the breach. Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 825, 542 N.E.2d 902, citing Rowe v. State Bank of Lombard (1988), 125 Ill. 2d 203, 531 N.E.2d 1358.

Calhoun’s pleading essentially alleges two related acts of misconduct: (1) a failure by Rane to diligently pursue Calhoun’s actions before the Industrial Commission; and (2) Rane’s cover up of his previous actions by advising Calhoun that his claims were still pending and offering Calhoun a settlement at a time when the claims had been dismissed for want of prosecution.

The State legislature abolished punitive damages in healing art and legal malpractice cases effective August 15, 1985, by the adoption of section 2 — 1115, which provides:

“§2 — 1115. Punitive damages not recoverable in healing art and legal malpractice cases. In all cases, whether in tort, contract or otherwise, in which the plaintiff seeks damages by reason of legal, medical, hospital, or other healing art malpractice, no punitive, exemplary, vindictive or aggravated damages shall be allowed.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1115, added by Pub. Act 84-7, §1, eff. Aug. 15,1985.

In Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763, the plaintiff challenged section 2 — 1115. The trial court had found section 2 — 1115 unconstitutional; however, the Illinois Supreme Court reversed the decision of the trial court, thus finding section 2 — 1115 constitutional. The Illinois Supreme Court also noted that other statutes prohibiting the recovery of punitive damages in various types of actions previously have been upheld by the court. (Bernier, 113 Ill. 2d at 245, 497 N.E.2d at 776; see also Siegall v. Solomon (1960), 19 Ill. 2d 145, 166 N.E.2d 5 (actions for alienation of affections); Smith v. Hill (1958), 12 Ill. 2d 588, 147 N.E.2d 321 (actions for breach of promise to marry).) Additionally we note that section 2 — 109 of the Illinois Code of Civil Procedure prohibits exemplary or punitive damages in the malicious prosecution of medical malpractice cases. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 109.

Calhoun concedes that count I is a traditional professional negligence count which clearly falls under the provisions of section 2 — 1115 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1115) and alleges a cause of action for which punitive damages are now barred. Calhoun did not seek punitive damages in count I.

Calhoun alleges that count III of the amended complaint sets forth an action for wilful and wanton misconduct. Count III incorporates by reference the allegations in counts I and II as well as alleging:

“7. That on or about May 17, 1989 the defendant wrote a letter to the plaintiff telling the plaintiff that the plaintiff’s Industrial Commission claims were still pending, and that there was an offer of settlement, but that the claims could only be settled for an amount which would net the plaintiff between $400.00 and $500.00.
8. That the information contained in the letter dated May 17, 1989 was false in that the plaintiff’s Industrial Commission claims had been dismissed for want of prosecution on or about 9-3-86 and 11-7-86.
9. That the defendant knew the plaintiff’s Industrial Commission claims had been dismissed for want of prosecution prior to May 17, 1989, but that the defendant sent the letter dated May 17, 1989 to the plaintiff for the purpose of advancing the defendant’s own purposes, objectives, and goals in an attempt to conceal the defendant’s own misconduct in allowing plaintiff’s industrial injury claims to be dismissed for want of prosecution.
10. That the letter of May 17, 1989 was written for the purpose of defrauding the plaintiff out of his just compensation, and for the purpose of covering up the defendant’s wrongful conduct, and as such is the type of the egregious misconduct which should be punished by an award of punitive damages.”

The prayer for relief in count III requests an award of punitive damages.

Calhoun argues: (1) He is seeking punitive damages for acts which are separated in time from Bane’s initial malpractice by approximately 21/2 years; (2) Bane’s offer of money was “clearly defendant’s attempt to ‘buy’ his way out of his malpractice, and thereby forever cover-up his wrongdoing”; and (3) in offering a “hush money” payment to Calhoun, Bane was clearly performing illegal services for himself rather than legal services for Calhoun. Thus, Calhoun maintains that since Bane’s wilful and wanton acts “did not arise out of the provision of legal services,” punitive damages are not prohibited by section 2 — 1115.

Plaintiff cites Central Bank — Granite City v. Ziaee (1989), 188 Ill. App. 3d 936, 544 N.E.2d 1121, to support his argument for punitive damages. Central Bank — Granite City allowed an award of punitive damages in a situation where the defendant doctor and nurse were not providing medical services to the patient/plaintiff, but rather were engaging in fraudulent real estate transactions, unrelated to medicine. Calhoun indicates that he is aware that Central Bank — Granite City concerned conduct which occurred prior to the effective date of section 2 — 1115, but argues that were the decision in Central Bank-Granite City to be decided today, subsequent to the effective date of section 2 — 1115, the ruling would be the same. This court refuses to speculate as to whether the case would be decided the same today.

Calhoun also cites National Bank v. Doss (1986), 141 Ill. App. 3d 1065, 491 N.E.2d 106, to support his position regarding punitive damages. However, Calhoun again indicates that the holding of National Bank in regard to punitive damages arising from legal malpractice may no longer be applicable following the effective date of section 2— 1115. It appears that the wrongful conduct in National Bank took place during the rendering of legal services prior to the effective date of section 2 — 1115; therefore, we do not feel that the holding in National Bank has any precedential value in this case.

In Smith, v. Kurtzman (1982), 106 Ill. App. 3d 712, 715, 436 N.E.2d 1, 4, the plaintiff alleged his reliance on an affirmative, intentional misrepresentation occurring subsequent to the malpractice which caused him to forgo a proper cure of his condition. The court held that such affirmative conduct, if proved, would serve to sufficiently break the continuity of the original malpractice. However, in the present case, aside from the lapse of time, Calhoun has not alleged any facts which would serve to sufficiently break the continuity of the original malpractice.

In Russell v. Good Shepherd Hospital (1991), 222 Ill. App. 3d 140, 583 N.E.2d 672, the plaintiff alleged wilful and wanton conduct on the part of the defendant physician during the childbirth of the plaintiff. Plaintiff sought punitive damages in that count. The appellate court held that that the trial court properly dismissed the count based on the statutory bar against punitive damages in medical malpractice actions. The court further held that the fact that the count was otherwise legally sufficient was irrelevant.

In Williams v. Chicago Osteopathic Medical Center (1988), 173 Ill. App. 3d 125, 527 N.E.2d 409, this court held that the statutory prohibition of punitive damages in healing art malpractice cases (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1115) applied to intentional fraud arising from the provision of medical services by health care providers. Following this court’s interpretation of section 2 — 1115 in Williams v. Chicago Osteopathic Medical Center, we must find that the section 2 — 1115 prohibition of punitive damages in legal malpractice cases also applies to intentional fraud arising from the provision of legal services.

We find that the allegations of wilful and wanton conduct set forth in count III are related to the original acts of professional malpractice set forth in count I; thus, section 2 — 1115 provides a statutory bar to punitive damages in this case.

Calhoun makes a forceful argument for an exception to the statute and this court agrees that the allegations against the defendant attorney are very serious. In no manner does this court condone the actions alleged in this cause of action; however, in light of section 2— 1115, Calhoun’s argument needs to be addressed to the State legislature.

For all of the reasons set forth above, we affirm the trial court’s decision granting Rane’s motion to dismiss counts II and III of Calhoun’s complaint and the matter is remanded to the trial court for further proceedings on count I.

Affirmed and remanded.

McNULTY, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    BETTIE JO OBENLAND et al., Plaintiffs-Appellants, v. ECONOMY FIRE AND CASUALTY COMPANY, Defendant-Appellee (Milwaukee Guardian Insurance Company, Defendant-Appellee and Cross-Appellant).
    First District (4th Division)
    Nos. 1 — 90—3641, 1—91—0888 cons.
    Opinion filed June 30, 1992.

      Edward M. Burnes, of Isadore M. Bernstein, Ltd., of Chicago, for appellants.
    Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, and Lloyd E. Williams, Jr., of counsel), for appellee Economy Fire & Casualty Company.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Richard M. Clark, and Christine L. Olson, of counsel), for appellee Milwaukee Guardian Insurance Company.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

These consolidated appeals stem from a declaratory judgment action brought by the plaintiffs, Bettie Jo Obenland and John E Obenland, to construe the limits of underinsured motorist coverage contained in insurance policies issued to the plaintiffs by the defendants, Milwaukee Guardian Insurance Company (Milwaukee) and Economy Fire & Casualty Company (Economy). The Milwaukee policy insured three vehicles and charged a premium of $15 for underinsured motorist coverage limits of $300,000 each person/$300,000 each accident. The Economy policy insured one vehicle and provided a single underinsured motorist coverage limit of $300,000 per accident.

The plaintiffs were injured as pedestrians by a motorist whose insurance company tendered its policy limits of $100,000 per person. The plaintiffs then sought a declaration that because of alleged ambiguities in the Milwaukee policy and the payment of three identical premiums, they were entitled to receive $300,000 per person of underinsured motorist coverage for each of the three cars insured by Milwaukee. They also sought the $300,000 coverage limit from Economy for a combined total of $2.1 million in coverage. The plaintiffs asked the court to declare that the amounts paid by Milwaukee and Economy were not to be shared proportionately pursuant to the policies’ “other insurance” clauses as long as the plaintiffs did not recover more than the amount of their damages. They subsequently filed an amended complaint alleging a cause of action against Milwaukee based on the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.).

On cross-motions for summary judgment, the trial court ruled that the plaintiffs were not entitled to “stack” the coverages under the Milwaukee policy and that the plaintiffs were entitled to a maximum coverage of $300,000 less the $200,000 paid by the underinsured motorist’s insurer. The remaining $100,000 would be shared proportionately by Milwaukee and Economy, resulting in $50,000 of coverage from Milwaukee and $50,000 of coverage from Economy. On the plaintiffs’ motion for reconsideration, the trial court stated that Milwaukee’s limits of liability provision was ambiguous and that the plaintiffs should accordingly be entitled to $300,000 of coverage per person notwithstanding the policy limit of $300,000 per accident. The court then declared that Milwaukee’s coverage limit was $350,000 and that Economy owed $50,000. The court dismissed the Consumer Fraud Act counts for failure to state a cause of action.

On appeal, the plaintiffs contend that the Milwaukee policy does not unambiguously preclude the stacking of underinsured motorist coverages. They further contend that, in the absence of a double recovery to the plaintiffs, neither the amounts paid by the underinsured motorist nor the coverage afforded by Economy pursuant to its policy should serve to reduce the limits of Milwaukee’s coverage. Similarly, the plaintiffs contend that Economy owes the full amount of its underinsured motorist coverage without regard to the amounts paid by the underinsured motorist or the coverage owed by Milwaukee under its policy. The plaintiffs further contend that the trial court erred in dismissing the Consumer Fraud Act counts for failure to state a cause of action. Milwaukee has cross-appealed, contending that its policy unambiguously limits the amount of underinsured motorist coverage to $300,000 for a single accident regardless of the number of persons injured. Thus, Milwaukee claims that it owes the plaintiffs $50,000 in coverage rather than the $350,000 as declared by the trial court.

At the time of the accident, the plaintiffs had underinsured motorist coverage under two insurance policies, one from Milwaukee and the other from Economy. The Milwaukee policy, as renewed on September 26, 1986, insured three cars and showed a $15 premium for underinsured motorist coverage. The declarations page of the policy indicated that the policy limits for underinsured motorist coverage were “$300,000 each person/$300,000 each accident.” The Milwaukee policy contains three clauses that are particularly significant to this appeal. The first is a “limits of liability” clause for uninsured and underinsured motorist coverage that provides in pertinent part:

“The limits of liability shown in the Declarations [$300,000 each person/$300,000 each accident] apply subject to the following:
(1) The limit for ‘each person’ is the maximum for bodily injury sustained by any person in any one accident.
(2) Subject to the limit for ‘each person,’ the limit for ‘each accident’ is the maximum for bodily injury sustained by two or more persons in any one accident.
We will pay no more than these máximums regardless of the number of vehicles described in the Declarations, insured persons, claims, claimants, policies, or vehicles involved in the accident.
Any amounts payable will be reduced by:
(1) All payments made by the owner or operator of the uninsured motor vehicle or organization which may be legally liable.”

The limits of liability clause was revised in July of 1986 but not issued to policyholders in its new form until 1987. In its revised form, the clause provides in part that “[w]e will pay no more than these máximums regardless of the number of vehicles described or premiums shown in the Declarations, insured persons, claims, claimants, policies, or vehicles involved in the accident. It is the intent of this paragraph not to allow stacking of the limit of liability under this coverage.” (Emphasis added to indicate revisions.)

The second clause at issue is the underinsured motorist endorsement, which provides in part:

“The limits of liability for underinsured motorist coverage *** shall be reduced by the sum of the limits of liability for all bodily injury liability bonds and insurance policies which apply to the underinsured automobile.”

Third, the Milwaukee policy contains an “other insurance” clause which provides as follows:

“If there is other applicable uninsured motorist insurance on a loss covered by this Part, we will pay our proportionate share as our limit of liability bears to the total of all applicable limits. But any insurance for a vehicle you do not own is excess over any other applicable uninsured motorist insurance.”

The policy made this last clause applicable to underinsured as well as uninsured motorist coverage.

The Economy policy, issued September 19, 1986, provides a single underinsured motorist coverage limit of $300,000 “each accident.” The uninsured motorist coverage amendatory endorsement, which confers both uninsured and underinsured motorist coverage, contains a “limit of liability” clause that provides in pertinent part:

“The limit of liability shown in the Declarations for Uninsured Motorists Coverage [$300,000 each accident] is our maximum limit of liability for all damages for bodily injury resulting from any one accident.
* * *
This is the most we will pay regardless of the number of covered persons, claims made, vehicles or premiums shown in the Declarations, or vehicles involved in the accident.
Any amounts otherwise payable for damages under this coverage shall be reduced by all stuns: Paid because of the bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible.”

The Economy policy also contains an “other insurance” clause which provides in pertinent part:

“[I]f the insured has other similar insurance available to him and applicable to the accident *** the Company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance ***.”

Before addressing the specific issues raised in this appeal, we will briefly examine the nature of underinsured motorist coverage and the statutory provisions in effect during the relevant time period.

Section 143a — 2(3) of the Illinois Insurance Code (Code) defines an underinsured motor vehicle as one which has resulted in bodily injury or death to the insured, and for which “the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security” maintained by the person responsible for the vehicle is less than the limits of underinsured coverage provided the insured under his policy at the time of the accident. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).) The statute then states that the liability of an insurer providing underinsured motorist coverage “shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).) Significantly, section 143a — 2(6) allows an insurer to include policy language prohibiting stacking. Section 143a — 2(6) provides as follows:

“Scope. Nothing herein shall prohibit an insurer from setting forth policy terms and conditions which provide that if the insured has coverage available under this Section under more than one policy or provision of coverage, any recovery or benefits may be equal to, but may not exceed, the higher of the applicable limits of the respective coverage, and the limits of liability under this Section shall not be increased because of multiple motor vehicles covered under the same policy of insurance.” Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(6).

In the recently decided case of Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 591 N.E.2d 427, the Illinois Supreme Court stated that the intent of the legislature in providing for under-insured motorist coverage was to place the insured in the same position he would have occupied had he been injured by a motorist who carried liability insurance in the same amount as the policyholder. In determining legislative intent, the court in Sulser considered the following statements made by Representative Teleser, a sponsor of the underinsured motorist coverage bill:

“The Amendment deals with technical problems that came up regarding an underinsured motorist. As an example: If a loss occurs, the motorist is underinsured, we wanted to be sure that the language set forth that the difference between the claim and the underinsured would be taken care of by your own insurance policy to fill the gap between the claim and the amount available from the underinsured and that there would not be any excessive claim that could be made.” (81st Ill. Gen. Assem., House Proceedings, June 20,1980, at 44-45.)

The supreme court then stated that “[a] provision designed to offer insurance to ‘fill the gap’ between the claim and the tortfeasor’s insurance was obviously not intended to allow the insured to recover amounts from the insurer over and above the coverage provided by the underinsured motorist policy. *** When the insured opts for $100,000 in coverage against either uninsured or underinsured motorist risks, he is assured of receiving no more than that amount.” (Sulser, 147 Ill. 2d at 556-57, 591 N.E.2d at 430.) The court in Sulser held that an insurer could reduce payments due to an insured under uninsured motorist coverage by the amount of workers’ compensation benefits received by the insured, even where the offset reduced the insurer’s obligation under the policy to zero. In doing so, the court rejected arguments that the reduction was against public policy and that the policyholder would not be receiving the compensation paid for by the underinsured motorist premium.

In this appeal, the plaintiffs first contend that neither the “other insurance” nor “limits of liability” clauses in Milwaukee’s policy unambiguously preclude stacking. Milwaukee responds that the “other insurance” clause is irrelevant to the issue of stacking, but that the “limits of liability” provision clearly and unambiguously prohibits the stacking of underinsured motorist coverages. As quoted earlier, the limits of liability provision states that the $300,000 each person/ $300,000 each accident policy limits are the most Milwaukee will pay regardless of the number of vehicles described in the declarations, insured persons, claims, claimants, policies or vehicles involved in the accident.

The plaintiffs make two specific arguments in support of their contention that the limits of liability clause is ambiguous with respect to stacking. First, they argue that subsequent revisions to the clause which stated explicitly that the intent of the clause was to prohibit stacking regardless of the number of premiums paid constituted an admission that the original was ambiguous. The trial court found, we believe correctly, that the later revisions were irrelevant to whether the clause as originally written was ambiguous. The issue before us is whether the limits of liability clause in the plaintiffs’ policy clearly and unambiguously prohibited stacking. In our view, it would be unfair and unwise to hold that an attempt by an insurance company to improve the language contained in its policy constituted an admission that the original language was ambiguous. We believe that policy language stating that the limits shown in the declarations were the most the company would pay regardless of the number of claims made, policies held or vehicles involved in the accident clearly and unambiguously precludes stacking.

The second argument concerning the limits of liability clause centers on the fact that the plaintiffs paid three separate premiums for underinsured motorist coverage. The plaintiffs argue that the payment of three premiums indicates that they must have intended to receive three separate coverages. This same argument was rejected by the supreme court in Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, in the context of uninsured motorist coverage. There, the court held that the existence of any such subjective intent on the part of the plaintiff was rebutted by the clear and unambiguous policy language limiting coverage. The Menke court then made the following comments concerning the argument that the prohibition against stacking was against public policy:

“Nor is public policy contravened by the fact that plaintiff paid premiums for each of the uninsured motorist provisions. Plaintiff agreed to the unambiguous limitations on coverage. *** Plaintiff concedes that it was reasonable to charge him something for the administrative work in writing the additional coverage and agrees that he has received some additional coverage for passengers who are not members of his household and would therefore not be covered by the original policy. There is no evidence of overreaching on the part of defendant, the premiums charged were not exorbitant, and, in short, no reason is advanced which would require invalidation of the limitation clause on public policy grounds. Public policy does not require invalidation of clearly written provisions simply to avoid disappointment to the insured.” (Menke, 78 Ill. 2d at 425-26, 401 N.E.2d at 542.)

This court in Sharpies v. General Casualty Co. (1980), 85 Ill. App. 3d 899, 902, 407 N.E.2d 674, followed Menke and stated that the payment of multiple premiums was of no consequence where the intent of the parties was manifested in the clear and unambiguous language of an antistacking provision.

The plaintiffs attempt to distinguish Menke on the grounds that the premiums for uninsured motorist coverage on the two additional vehicles were lower than the premiums on the first vehicle. The plaintiffs note that in Illinois, underinsured motorist coverage follows the named insured and his family members and protects them regardless of where they are when injured. Therefore, the additional premiums on the other two cars would afford coverage for nonfamily member occupants of those vehicles but would afford no additional protection for the plaintiffs. The plaintiffs argue that where three equal premiums are paid, even express language in the policy should not be held to prevent stacking.

We do not believe that the decision in Menke can be properly distinguished on the basis of whether the premiums were identical or reduced for the two additional coverages. Although the premiums charged in Menke were not identical, the dissent points out that the reductions were based on the length of time the plaintiff held each policy without making a claim rather than on any difference in coverage afforded under the policies. (Menke, 78 Ill. 2d at 431, 401 N.E.2d at 545 (Clark, J., dissenting).) The majority does not cite the difference in the premiums as a basis for its decision that public policy was not contravened by prohibiting stacking even where separate premiums were charged for each coverage. We believe that Menke is directly on point and requires the rejection of the plaintiffs’ argument that they should be allowed to stack coverages despite clear policy language to the contrary.

The plaintiffs, however, cite the recent supreme court decision in Hoglund v. State Farm Mutual Automobile Insurance Co. (1992), 148 Ill. 2d 272, to support their argument that the payment of separate premiums for each car created a latent ambiguity as to whether or not the coverages may be stacked. In each of the consolidated cases considered in Hoglund, the insured was injured in part by an uninsured motorist and in part by an insured motorist. The insured motorist in Hoglund had a bodily injury policy limit of $100,000 which was paid to the plaintiff. The plaintiff-insured had a policy with State Farm which provided an uninsured motorist coverage limit of $100,000. The insured claimed that her damages exceeded $200,000. The State Farm policy contained a setoff provision stating that amounts payable under its coverage would be reduced by any amounts paid or payable to the insured “by or for any person or organization who is or may be held legally liable for the bodily injury to the insured.” (Hoglund, 148 Ill. 2d at 275.) Section 143a(4) of the Code provided that the insurer making a payment under its uninsured motorist coverage was entitled, to the extent of the payment, to the proceeds of any settlement or judgment “resulting from the exercise of any rights of recovery *** against any person or organization legally responsible.” Ill. Rev. Stat. 1985, ch. 73, par. 755a(4).

Relying upon its policy language and the above Code provisions, State Farm argued that because the insured had received $100,000 from a legally liable party, State Farm was entitled to reduce its coverage by the $100,000 payment and therefore owed the insured nothing.

The supreme court rejected State Farm’s argument, stating that the public policy behind the uninsured motorist statute is to place the injured party in substantially the same position he would be in if the uninsured driver had been insured. The court explained:

“If the position of State Farm were to be adopted *** this purpose would be frustrated. If, for instance, the uninsured motorcycle driver had been insured for $100,000, Miss Hoglund could have collected that sum in full from that driver’s insurer, along with the $100,000 she collected from the other insured driver. The separate collections of $100,000 from each of the two culpable drivers would have fully compensated her for her $200,000 in damages. State Farm’s position, however, is to insist that it receive a full setoff for the payment made on behalf of the insured driver. Such a result would violate the public policy behind the uninsured motorist statute that the injured party be placed in the same position as if the uninsured driver had been insured.” (Hoglund, 148 Ill. 2d at 280.)

The court then held that State Farm was entitled to a setoff only to the extent necessary to prevent a double recovery. In doing so, it stated specifically that it was “significant” that the insured was injured in part by an uninsured motorist and in part by an insured motorist. (Hoglund, 148 Ill. 2d at 280.) The court further stated that its holding was in accord with other jurisdictions, citing Raitt v. National Grange Mutual Insurance Co. (1971), 111 N.H. 397, 285 A.2d 799, and Harthcock v. State Farm Mutual Automobile Insurance Co. (Miss. 1971), 248 So. 2d 456. Both Raitt and Harthcock involved situations where the insured was injured in part by an uninsured motorist and in part by an insured motorist.

In the case at bar, the plaintiffs were injured by a single underinsured motorist. The plaintiffs had underinsured motorist coverage limits of $300,000 each person/$300,000 each accident. The underinsured motorist’s insurer paid its policy limits of $200,000. As stated by the supreme court in Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 591 N.E.2d 427, underinsured motorist coverage is designed to “fill the gap” between the amount of the tortfeasor’s insurance and the amount of underinsured motorist coverage the insured opted to buy. Here, had the plaintiffs been injured by a motorist who carried bodily injury liability insurance equal to the plaintiffs’ underinsured motorist coverage, they would have received a total of $300,000. Applying the antistacking and setoff provisions in the case at bar results in the plaintiffs receiving $200,000 from the underinsured motorist’s insurer and $100,000 from the plaintiffs’ underinsured motorist coverage for a total of $300,000. Therefore, unlike the situation in Hoglund, application of the policy provisions in the case at bar does not result in the plaintiffs being in a worse position than they would have been in had the underinsured motorist been adequately insured. We conclude that the holding in Hoglund is distinguishable from the case at bar and does not require us to find that the antistacking and setoff provisions in the policy violate the public policy behind the underinsured motorist statute.

The plaintiffs contend, however, that the rationale employed by the court in Hoglund supports their argument that the payment of three separate premiums disclosed a latent ambiguity in the policy as to whether the coverages could be stacked. They maintain that the Hoglund court reasoned that the payment of a premium for $100,000 of uninsured motorist coverage created a reasonable expectation by the insured that he would receive the full $100,000 in coverage despite policy language providing for a setoff of amounts paid by an insured tortfeasor. It is true that Hoglund relied upon the reasonable expectations of the insured as one of the factors disclosing a latent ambiguity in the policy. However, the court stated that the policy “must also be read in conjunction with the public policy behind the uninsured motorist statute and *** with reference to the facts of the case at hand.” Hoglund, 148 Ill. 2d at 279.

We do not believe that Hoglund can be properly interpreted to stand for the proposition that the payment of a premium will in all cases create in the insured a reasonable expectation that he will receive the full amount of coverage stated in the policy despite clear policy language providing for setoffs and prohibiting stacking. Were we to accept the interpretation of Hoglund advanced by the plaintiffs, we would have to conclude that the supreme court in effect overruled its earlier decision in Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539. In summary, we believe that Hoglund addressed a situation very different from the one before us and does not support the plaintiffs’ contention that they should be allowed to stack their underinsured motorist coverages.

The plaintiffs next contend that the provision in Milwaukee’s policy stating that amounts paid by the underinsured motorist’s insurer will reduce the amounts payable under iMilwaukee’s underinsured motorist coverage should not be enforced. The plaintiffs argue that the policy provision allowing such a reduction is too inconspicuous and confusing to be enforced. As stated earlier, the underinsured motorist endorsement provides that “[t]he limits of liability for underinsured motorist coverage *** shall be reduced by the sum of the limits of liability for all bodily injury liability bonds and insurance policies which apply to the underinsured automobile.” The limits of liability clause provides in part that “[a]ny amounts payable will be reduced by: (1) [a]ll payments made by the owner or operator of the uninsured motor vehicle or organization which may be legally liable.” The underinsured motorist endorsement made the limits of liability clause applicable to the underinsured motorist coverage.

The plaintiffs maintain that the policy necessitates repeated cross-checking and is difficult, if not impossible, for a person unskilled in insurance matters to understand. In making this argument, the plaintiffs refer to the policy index, a definitions page, a note of appreciation page, policy riders, the declarations page, the policy provisions quoted above and the Insurance Code. The plaintiffs cite Harhen v. State Farm Mutual Automobile Insurance Co. (1978), 61 Ill. App. 3d 388, 377 N.E.2d 1178, as support for their argument that the policy provisions in question should not be enforced. While the court in Harhen did note that the wording of the policy might prove difficult for a person unskilled in insurance matters, it is clear that the court did not reverse the cause on that basis. Moreover, we find no confusion in the policy language which allows Milwaukee to reduce its coverage by $200,000, the amount paid by the underinsured motorist’s insurer.

The plaintiffs next contend that the trial court erred in interpreting Economy’s policy as providing for $300,000 in coverage, reduced by $200,000 from the underinsured motorist’s insurer and paid proportionately with Milwaukee for a total coverage of $50,000. The plaintiffs maintain that Economy’s $300,000 each accident underinsured motorist coverage limit should be interpreted as meaning that Economy will pay until each plaintiff has received a total of $300,000 from Economy and the tortfeasor or until Economy itself has paid out $300,000. The plaintiffs argue that the trial court’s interpretation is erroneous because it will almost always result in a situation where two seriously injured insureds will receive less than one seriously injured insured. The plaintiffs also argue that under the trial court’s interpretation, the amounts payable by Economy may depend on the order in which the plaintiffs bring their claims and that Economy will never be required to pay the full $300,000. Finally, the plaintiffs argue that the trial court’s interpretation of the policy violates the public policy behind the statute requiring insurers to provide underinsured motorist coverage.

We believe that these arguments are based in large part on a misunderstanding as to the nature of underinsured motorist coverage. As stated very recently by our supreme court in Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 591 N.E.2d 427, under-insured motorist coverage was intended to fill the gap between the claim and the tortfeasor’s insurance and was not intended to allow the insured to recover more than the amount of coverage provided under his policy’s underinsured motorist coverage. Significantly, the court gave the following example:

“Under a $100,000 policy, the policyholder is assured of compensation for his injuries in the amount of $100,000. However, the policyholder is not necessarily assured of receiving the total $100,000 from the insurer, but only of receiving that portion of the $100,000 which is not recovered from third parties.” (Sulser, 147 Ill. 2d at 556, 591 N.E.2d at 430.)

The Economy policy clearly and unambiguously provides policy limits of $300,000 each accident, reduced by the amounts paid on behalf of the tortfeasor. As stated in Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 426, 401 N.E.2d 539, public policy does not require us to invalidate clearly written policy language simply to avoid disappointment to the insured.

In their reply brief, the plaintiffs argue that the uninsured motorist statute (Ill. Rev. Stat. 1985, ch. 73, pars. 755a — 2(1), (4)) and the liability limits statute (Ill. Rev. Stat. 1985, ch. dbVz, par. 7 — 203) require that every insurance policy contain both “each person” and “each accident” limits. They assert that because the Economy policy would pay up to $300,000 to a single insured, the “each person” limit should be implied to be $300,000.

Supreme Court Rule 341(g) (134 Ill. 2d R. 341(g)) prohibits a party from raising new matters by way of a reply brief. Having failed to make this argument in their original brief, we believe that the plaintiffs have waived it for purposes of this appeal. In re Marriage of Lawrence (1986), 146 Ill. App. 3d 307, 311, 496 N.E.2d 538.

The plaintiffs next contend that the “other insurance” clauses in the Milwaukee and Economy policies should apply only to prevent the plaintiffs from recovering more than their actual damages. They argue that applying the other insurance clauses in a situation where there is no double recovery violates the public policy in favor of encouraging full protection of innocent persons against uninsured and financially irresponsible motorists.

Essentially, the “other insurance” clauses provide that if the insured has other insurance applicable to the loss, the company

will pay only its pro rata share of the loss. In Morelock v. Millers’ Mutual Insurance Association (1971), 49 Ill. 2d 234, 274 N.E.2d 1, the supreme court rejected the argument that such clauses violate public policy. The court stated as follows:

“ ‘The question of public policy, it seems to us, is largely manufactured. Construing an insurance contract accurately and giving it the effect which its language clearly commands, is not ipso facto a breach of public policy merely because it disappoints the innocent victim of an uninsured motorist.’ *** [W]e prefer the view that the legislature’s intent in requiring uninsured motorists insurance is satisfied by coverage which assures that compensation is available, in the event of injury by an uninsured motorist, to at least the same extent compensation ‘is available for injury by a motorist who is insured in compliance with the Financial Responsibility Law.’ ” (Morelock, 49 Ill. 2d at 238-39, 274 N.E.2d at 3, quoting Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 89, 269 N.E.2d 97.)

We accordingly reject the plaintiffs’ argument that the “other insurance” clauses are violative of public policy.

The plaintiffs next contend that the trial court erred in dismissing the Consumer Fraud Act counts against Milwaukee for failure to state a cause of action.

Section 2 of the Consumer Fraud Act provides in pertinent part:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” (Ill. Rev. Stat. 1989, ch. 121V2, par. 262.)

In order to establish a violation of the Consumer Fraud Act, the plaintiffs must allege misrepresentation, concealment or omission of a material fact by the defendant with the intent that the plaintiffs rely on such conduct. Kostur v. Indiana Insurance Co. (1989), 192 Ill. App. 3d 859, 867, 549 N.E.2d 685.

In the case at bar, the plaintiffs allege that Milwaukee’s action in prohibiting stacking of the three underinsured motorist coverages even though it collected a separate premium for each constituted a violation of the Act. They also allege that Milwaukee violated the Act by charging plaintiff John F. Obenland a full premium for underinsured motorist coverage despite the fact that he had underinsured motorist coverage pursuant to his policy with Economy. However, as stated above, the language in the Milwaukee policy clearly and unambiguously set forth the type and amount of coverage purchased by the plaintiffs. The Insurance Code specifically allows an insurance company to include language prohibiting stacking of underinsured motorist coverage. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(6).) We believe that the plaintiffs have failed to allege any unfair or deceptive act which would bring Milwaukee’s conduct within the purview of the Consumer Fraud Act.

In its cross-appeal, Milwaukee contends that the court erred in ruling that paragraph 2 of its limits of liability provision was ambiguous and in accordingly awarding $300,000 of coverage to each plaintiff.

The policy provides:

“The limits of liability shown in the Declarations [$300,000 each person/$300,000 each accident] apply subject to the following:
(1) The limit for ‘each person’ is the maximum for bodily injury sustained by any person in any one accident.
(2) Subject to the limit for ‘each person,’ the limit for ‘each accident’ is the maximum for bodily injury sustained by two or more persons in any one accident.”

The trial court found that paragraph 2 is ambiguous and “could be construed to read that the accident portion of the policy under the cover page would provide an additional $300,000.00 in the event that there was more than one person injured in an accident, one or more persons injured in an accident.” The court then found that Milwaukee was liable for up to $600,000 in coverage.

We believe that the interpretation adopted by the trial court ignores the clear language of the policy which limits Milwaukee’s coverage to $300,000 for a single accident. By stating that the each-accident limit is subject to, the each-person limit, Milwaukee is stating that it will not pay any one person more than the each-person limit regardless of the each-accident limit. In the case at bar, where the each-person limit is equal to the each-accident limit, the language subjecting one limit to the other is not significant. However, in a sitúation where the each-person limit is less than the each-accident limit, i.e., $100,000 each person/$300,000 each accident, the insurer is stating that it will pay no more than $100,000 to any one person injured in the accident, despite the each-accident limit of $300,000. We find no ambiguity in this provision and find that the policy provided for a maximum coverage of $300,000. Reduced by the $200,000 payment by the underinsured motorist’s insurer, and paid proportionately with Economy, Milwaukee owes the plaintiffs $50,000 in coverage. Similarly, the Economy policy provided for a total of $300,000 in coverage, reduced by the $200,000 payment from the tortfeasor and paid proportionately with Milwaukee for a coverage of $50,000.

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

Affirmed in part; reversed in part.

LINN and JOHNSON, JJ., concur.

      Although the policy showed only one premium of $15, the plaintiffs alleged that they were charged three $5 premiums, one for each vehicle.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROCCO ROPPO et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—90—0157, 1—90—0223 cons.
    Opinion filed June 12, 1992.

      Robert A. Novelle, of Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago, for appellant Rocco Roppo.
    Randolph N. Stone, Public Defender, of Chicago (Crystal H. Marchigiani, Assistant Public Defender, of counsel), for appellant Ernie Steinbach.
    Jack O’Malley, State’s Attorney, of Chicago (Carol Gaines, Special Assistant State’s Attorney, and Renee Goldfarb and Nicholas C. Giordano, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal arises from three consolidated cases. Following a joint bench trial, defendants, Jeffrey Karas, Ernest Steinbach and Rocco Roppo were each convicted of delivery of a controlled substance in violation of section 401(a)(2) of the Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)). Each defendant was sentenced to six years’ imprisonment. All three defendants have appealed, but we consider only the contentions of Steinbach and Roppo (hereinafter defendants). Karas has filed an Anders motion.

On appeal, defendants contend that statements made by Karas implicating them were improperly admitted into evidence as coconspirator exceptions to the hearsay rule, and that the State failed to prove beyond a reasonable doubt that defendants were accountable for the actions of codefendant Karas. Steinbach further contends that the indictment against him should have been dismissed by the trial court.

At the commencement of the proceedings, the judge granted a “defacto severance,” and stated that he would not “consider any out-of-court statements made by one defendant against another defendant for no person can admit or confess a crime for another.”

The following facts were adduced at trial. Officer David Spahn, an undercover agent with the Northeastern Metropolitan Enforcement Group (MEG), testified on behalf of the State that on August 12, 1987, he spoke with Karas to arrange the purchase of a quarter ounce of cocaine. After agreeing to a price for the cocaine, Karas and Spahn arranged to meet the following day at Copperfield’s Lounge in Berwyn, Illinois.

On August 13, 1987, Spahn met with Karas at Copperfield’s. The two men went to Spahn’s car, and Karas handed Spahn the cocaine in a clear plastic packet. Spahn prerecorded the serial numbers of the money used in the transaction. Karas informed Spahn that he would be able to provide more cocaine for future transactions.

On August 26, 1987, at approximately 9 a.m., Spahn telephoned Karas and asked for another quarter ounce of cocaine. Karas indicated that he would be able to provide the cocaine later that day and arranged to again meet Spahn at Copperfield’s. Spahn also inquired whether Karas would be able to provide prices for larger quantities of cocaine.

Surveillance officers positioned outside the building indicated that Karas arrived by commuter train at approximately 5:30 p.m. Spahn entered Copperfield’s and observed Karas at the bar. Spahn and Karas walked over to a table in the lounge. Karas told Spahn that “his main guy or his connect” was on the way to the lounge with the cocaine. After Karas made a telephone call, he informed Spahn that he just talked to his “main guy.” According to Karas, his “connect” had a car phone in his Corvette and was employed in the computer business.

Approximately 30 minutes later, Karas made another telephone call. Karas told Spahn that his “guy” was approximately five minutes away. Spahn called the surveillance agents positioned outside the lounge and told them that the “connect” on the deal was supposed to be arriving and that he would probably be driving a Corvette with a car antenna. Shortly thereafter, Steinbach arrived and approached Spahn and Karas. Karas told Spahn that this was his “main connect” and introduced Steinbach to Spahn.

Steinbach directed Karas to accompany him to his car. Karas explained to Spahn that he would be right back with the cocaine. After Karas and Steinbach left the lounge, Spahn placed a telephone call to the surveillance agents and advised that Karas and his “connect” were walking out the door. Surveillance Agent Fred Guerra, also employed by the MEG, testified that he saw Karas and Steinbach leave the lounge and enter Steinbach’s car. Karas drove Steinbach’s car away from the parking lot, while Steinbach sat in the passenger seat. After driving around the block, the car returned to the parking lot. Steinbach and Karas then reentered the lounge.

Karas and Steinbach walked back to Spahn’s table, and Karas told him that “it” would cost $460. At that moment, Steinbach told Karas to “hold on” and walked approximately four to five feet away from Spahn and Karas. Karas handed Spahn a packet of white powder, which Spahn paid for with prerecorded money. After the transaction, Steinbach drove away in his car with Karas in the passenger seat.

At approximately 8 p.m. that evening, Spahn received a page from Karas. Karas informed him that he was with his “main connect,” and that they would be able to sell him eight ounces of cocaine at $1,500 per ounce. Spahn arranged to meet with Karas at the Burger King in Berwyn the following afternoon. Karas stated that if everything went well with this drug deal, Spahn could purchase larger amounts at a later date. Karas further stated that his “connect, his main guy, was very smart and would not be there to do the deal because he did not want the dope and the money together.” However, the “connect” would be a few blocks away.

On August 27, 1987, Spahn drove to the Burger King at approximately 1 p.m. Agent Guerra was one of the team performing surveillance outside the restaurant. Spahn received a page from Karas, who informed him that the site of the deal was being changed to the Jewel Food Store parking lot in Hillside. After notifying the surveillance team of the location change, Spahn proceeded to the Jewel parking lot. Agent John Majcher of the MEG testified that he saw Steinbach leave the vicinity of the Jewel parking lot and drive northbound on Mannheim Avenue.

Spahn arrived at the Jewel parking lot and dialed the number he previously used to call Karas. Karas did not answer the telephone; rather, Spahn testified that he recognized the voice of Steinbach. Spahn asked Steinbach where Karas was because they were “supposed to do this deal.” Steinbach replied that Karas just left and that he should be right over.

Karas pulled next to Spahn’s car in the Jewel parking lot. After exchanging greetings, Karas stated that he needed to have the money first so that he could drive over to where his “connect” and his “connect’s connect” were waiting. Spahn refused to provide the money until he was able to see the drugs. After several minutes of negotiations, Karas stated that he would go talk to both of them, as they were sitting in a nearby Wendy’s parking lot. After Karas’ departure, Spahn notified the surveillance agents so that they could follow him.

Majcher testified that he saw Karas’ car pull up and park perpendicular to the front end of a black Corvette driven by Roppo. The Corvette was owned by Roppo’s brother. Steinbach’s Corvette was also in the parking lot. Karas walked around to the driver’s side of the car, where Roppo was seated. Steinbach was in the passenger seat. Karas conversed with Roppo for approximately 10 minutes. From a distance of approximately six or seven feet from Roppo’s car, Majcher observed an object being passed out of the vehicle to Karas, who concealed the object in his right hand and then reentered his car. Specifically, Majcher testified that he saw Roppo’s hand coming out of the vehicle and meeting Karas’ hand, and that an object was passed between those two hands.

Shortly thereafter, Karas returned and entered Spahn’s car. Karas stated that he had one ounce of “good coke.” Karas took out a clear plastic bag containing white powder and stated that in order to get the rest of the cocaine Spahn had to give him all the money. Spahn refused to give Karas the entire amount and eventually activated a signal to the arrest team. Spahn then dropped a handful of bills into Karas’ lap to distract him so that he would not see the approach of the arresting officers. At the same time, another team arrested Steinbach and Roppo in Roppo’s car in the nearby Wendy’s parking lot. After searching Roppo’s car, the agents recovered a revolver underneath the seat, and $662 upon Roppo. Steinbach’s car was also searched, but nothing was seized.

Under cross-examination, Spahn stated that he had never heard Roppo’s name nor had he spoken to him prior to the arrest. The plastic bag containing the cocaine was not examined for fingerprints.

The parties stipulated to the amount of cocaine recovered from each transaction. From the August 13, 1987, transaction, 6.9 grams of cocaine were recovered; 8.9 grams were recovered in the August 26, 1987, transaction and 28.1 grams in the final transaction on August 28,1987.

After hearing the testimony from Agents Spahn, Guerra and Majcher, the judge denied Steinbach’s motion to dismiss the indictment. Additionally, the judge denied all three defendants’ motions for a directed finding. At that time, the judge also stated that he would not consider any post-arrest statements made by any defendant against a codefendant; however, he would consider any statements made by Karas pertaining to an agreement against his codefendants. Defense counsel objected on the basis that there was an insufficient foundation for the admission of such statements. The court found that the State had established an agreement between the defendants for the delivery of a controlled substance by a preponderance of the evidence, independent of Karas’ statements.

Steinbach testified that he had been a friend of Karas for over three years prior to August 1987. At that time, Steinbach worked as a computer salesman. On August 13, 1987, Karas telephoned Steinbach in his car and asked for a ride from Copperfield’s. Karas called Steinbach a second time to give him directions to the bar because Steinbach was unfamiliar with that neighborhood. After parking the car, Steinbach walked into the bar and saw Karas sitting at a table with another man. After ordering a drink, Karas-introduced him to Spahn and they had a brief conversation. There was no discussion of any deals. Steinbach and Karas then left the bar. Steinbach asked Karas to drive because he was tired; however, they left the bar and returned momentarily because Karas stated that he had to go back into the bar for a minute. Steinbach accompanied Karas back into the bar to use the restroom. Karas spoke briefly with Spahn, and they then left the bar.

Steinbach further testified that on August 27, 1987, Karas was staying with him at his apartment. Steinbach drove Karas to a friend’s house to borrow a car. While in the car, Karas made a telephone call to a friend’s beeper number. Approximately two minutes later, Karas received a telephone call. Thirty minutes after Steinbach dropped Karas off, Steinbach received another telephone call on his car telephone and someone asked for Karas. Steinbach replied that he had dropped Karas off a half hour ago, and that if Karas was supposed to meet him, he was probably on his way.

Steinbach met with Roppo at a restaurant on Mannheim Road to discuss a computer purchase. Roppo suggested that they have lunch at Wendy’s across the street. Steinbach entered Roppo’s car and rode with him to the restaurant parking lot. After approximately one-half hour, Karas approached Roppo’s car. After a brief conversation, Karas shook Steinbach’s hand. Karas then returned to his car and drove away. Shortly thereafter, Steinbach and Roppo were arrested.

On appeal, we first address whether the statements made by Karas to Spahn implicating defendants were properly admitted into evidence as coconspirator exceptions to the hearsay rule. Defendants argue that the trial judge’s admission of such statements constitutes reversible error in light of his ruling at the beginning of trial that he would not “consider any out-of-court statements made by one defendant against another defendant.” Further, defendants maintain that the State failed to establish the existence of a conspiracy by nonhearsay evidence.

In order to establish a prima facie case for any conspiracy, the State is required to prove that two or more persons intended to commit a crime, that they engaged in a common plan to accomplish the criminal goal, and that an act or acts were done by one or more of them in furtherance of the conspiracy. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) Mere association, knowledge or approval of a conspiracy is not sufficient to prove a defendant’s guilt; however, presence or a single act will suffice if the circumstances permit the inference that the presence or act was intended to advance the ends of the conspiracy. United States v. Xheka (7th Cir. 1983), 704 F.2d 974.

Under the coconspirators’ exception to the hearsay rule, any act or declaration (1) by a coconspirator of a party (2) committed in furtherance of the conspiracy and (3) during its pendency is admissible against each and every coconspirator, provided that (4) a foundation for its reception is laid by independent proof of the conspiracy. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215; People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) Declarations of a coconspirator made in furtherance of and during the pendency of a conspiracy are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy between the declarant and other defendants (People v. Duckworth (1989), 180 Ill. App. 3d 792, 536 N.E.2d 469) which occurs either before or after the alleged hearsay testimony. (People v. Goodman, 81 Ill. 2d 278, 408 N.E.2d 215.) The prima facie case must show that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach a common end by criminal means. People v. Edwards (1984), 128 Ill. App. 3d 993, 471 N.E.2d 957.

The testimony of an undercover police officer can serve as circumstantial evidence that a conspiracy to deliver narcotics existed and that defendant was an integral part of that conspiracy where out-of-court coconspirator statements which directly implicate others in the conspiracy are interspersed in his testimony. (People v. Cortes (1984), 123 Ill. App. 3d 816, 463 N.E.2d 885.) In that case, the undercover officer’s testimony as to what the codefendant told him about defendant’s involvement in a narcotics transaction was admissible as the statement of a coconspirator and served as circumstantial evidence that a conspiracy to deliver heroin existed and that defendant was an integral part of that conspiracy.

For purposes of our analysis, we also find it instructive to turn to Federal Rule of Evidence 801(d)(2)(E) (28 U.S.C. 801(d)(2)(E) (1976)), which provides that:

“A statement is not hearsay if—
***
*** [t]he statement is offered against a party and is *** a statement by a coconspirator of a party during the course of and in furtherance of that conspiracy.”

In the landmark case of Bourjaily v. United States (1987), 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775, the Supreme Court held that under Rule 104(a) of the Federal Rules of Evidence, a court is permitted to consider out-of-court statements of an alleged coconspirator when making its preliminary factual determinations, relevant to the statement’s admissibility against the accused under Rule 801(dX2XE) as to whether a conspiracy existed and whether the accused and the declarant were members of such a conspiracy. Additionally, the Bourjaily court held that where there is a dispute as to such preliminary facts, the party offering the out-of-court statements must prove those facts by a preponderance of the evidence, but not by a higher standard of proof. In Illinois, Federal Rule of Evidence 801(dX2XE) is basically the same as the common law rule in Illinois. People v. Eddington, 129 Ill. App. 3d 745,473 N.E.2d 103.

Admittedly, the trial judge’s initial statement that he would not consider the out-of-court statements made by one defendant against another codefendant may have caused some confusion as to whether pre-arrest statements were admissible. However, the judge’s comment that “no one person can admit or confess a crime for another” strongly suggests that he was considering statements made after the commission of the offense only, which comports with a long line of cases holding that statements made by an alleged coconspirator upon confession or after arrest are not admissible against a defendant unless made in his presence and assented to by him. (Emphasis added.) (See People v. Eddington, 129 Ill. App. 3d 745, 473 N.E.2d 103; People v. Brown (1972), 7 Ill. App. 3d 748, 289 N.E.2d 452; People v. Simpson (1976), 39 Ill. App. 3d 318, 349 N.E.2d 441.) No man can confess to a crime for anyone but himself. (People v. Eddington, 129 Ill. App. 3d 745, 473 N.E.2d 103, citing People v. Rupert (1925), 316 Ill. 38, 146 N.E. 456.) After defendants’ motions for directed findings, the judge further clarified his position that he would not consider any post-arrest statements, but that he would consider any statements made by Karas pertaining to an agreement against the other codefendants.

We find that other independent evidence was introduced at trial to support the State’s position that a conspiracy existed, between Karas and Steinbach, at least. Specifically, we point to the testimony of Guerra, who stated that at the second drug transaction Steinbach entered the lounge, approached Karas and Spahn, and then left the lounge. Karas drove away from the parking lot in Steinbach’s car, who was in the passenger seat. The two men drove around the block, and then reentered the lounge. Upon their reentry, Karas sold Spahn the packet of cocaine for $460. We also consider the testimony of Majcher, who saw Steinbach leave the vicinity of the Jewel parking lot at the prearranged time for the third drug transaction. Finally, we note the presence of Steinbach in Roppo’s car, in close proximity to the area where Karas delivered the cocaine to Spahn during the third drug transaction.

The existence of the agreement may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the accused. (People v. Pintos, 133 Ill. 2d 286, 549 N.E.2d 344; People v. Gray (1980), 85 Ill. App. 3d 726, 410 N.E.2d 493.) Accordingly, we find that sufficient independent proof of the conspiracy existed to allow for the admission of Karas’ statements as coconspirator’s exceptions to the hearsay rule.

We now address whether sufficient evidence existed to prove beyond a reasonable doubt that Steinbach and Roppo were accountable for the delivery of the controlled substance by Karas.

The critical inquiry on review of a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) Once defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that, upon judicial review, all of the evidence is to be considered in the light most favorable to the prosecution. People v. Migliore (1988), 170 Ill. App. 3d 581, 525 N.E.2d 182.

We first address Steinbach’s arguments. Steinbach asserts that he was merely present on one of three occasions when Karas sold cocaine to Spahn, and merely present at another location when Karas met Roppo before he sold cocaine to Spahn at a separate location; as such, his actions in each instance demonstrated disapproval, and not his acquiescence.

To sustain a conviction for unlawful delivery based upon an accountability theory, the State must establish beyond a reasonable doubt that: (1) defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of the delivery; (2) that the defendant’s participation took place before or during the commission of the delivery, and (3) that the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.) Defendant’s mere presence at the crime scene and knowledge of an on-going offense is not, alone, sufficient to establish accountability (People v. Deatherage, 122 Ill. App. 3d 620, 461 N.E.2d 631; People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544); nevertheless, the fact finder may infer defendant’s accountability from his approving presence at the scene of the crime (People v. Fuller (1980), 91 Ill. App. 3d 922, 415 N.E.2d 502), and from evidence of conduct showing a design on defendant’s part to aid in the offense. People v. Schlig, 120 Ill. App. 3d 561, 458 N.E.2d 544.

Viewed in the light most favorable to the prosecution, specific actions undertaken by Steinbach evidence his intent and participation in assisting Karas in the delivery of the cocaine. Although Steinbach was not involved in the August 13 transaction, he participated in the following two drug deliveries. Karas told Spahn that “his main guy or his connect” was on the way to Copperfield’s with the cocaine. Karas further told Spahn that his “connect” had a car phone in his Corvette and was employed in the computer business. Guerra testified that shortly after Karas’s second telephone call, Guerra saw Steinbach drive his Corvette into the Copperfield’s parking lot and meet with Karas and Spahn. Karas and Steinbach then left the bar, drove around the block once, and reentered the building. Thereafter, Karas exchanged a packet of cocaine for $460 provided by Spahn. We are unimpressed by Steinbach’s attempt to distance himself from the transaction by asking Karas and Spahn to “hold on” and walking four to five feet away from the table.

As previously discussed, we note that Steinbach was present at the prearranged time and location in the Jewel parking lot immediately prior to the third drug transaction. When Spahn dialed the pager number he previously used to call Karas, Steinbach answered the call. After Spahn asked where Karas was, because they were “supposed to do this deal,” Steinbach replied that Karas had just departed and that he would be right over. Finally, the trial judge had the opportunity to assess the credibility of Steinbach’s account that he was meeting with Roppo at a restaurant on Mannheim Road to discuss a computer purchase, and that the conversation continued in the Wendy’s restaurant parking lot across the street.

Accordingly, we find that the State presented sufficient evidence to prove beyond a reasonable doubt that Steinbach was accountable for the actions of Karas in the delivery of a controlled substance.

We now address the issue of the evidence presented against Roppo. Roppo contends that he was only present at a public place with Steinbach when Karas approached the car after having left Spahn. Majcher testified that he observed an object being passed out of the vehicle from Roppo’s hand to Karas, who concealed the object in his right hand and then reentered the car. Shortly thereafter, Karas delivered the cocaine to Spahn at a different location. In essence, Roppo argues that the State’s evidence demonstrates presence and nothing more; as such, his conviction must be reversed.

In People v. Darnell (1990), 214 Ill. App. 3d 345, 573 N.E.2d 1252, this court examined a factual pattern similar to the present case. In that case, Darnell made several statements to an undercover agent in which he referred to his codefendants, Velez and Swiatkowski. Specifically, Darnell referred to one of his codefendants as his cocaine source, and also stated that Swiatkowski did not want the cocaine and the money in the car at the same time. Additionally, Velez handed a white shopping bag which was found to contain cocaine to Darnell from the front seat of his car. This court affirmed Darnell’s conviction, but reversed those pertaining to Velez and Swiatkowski, finding that the State presented no evidence to support its assertion that the codefendants knew a crime was being committed, and that any implication that Swiatkowski was a supplier was purely speculative and not supported by the evidence.

• 5 In the present case, the State failed to prove that Roppo was accountable for the actions of Karas in the delivery of a controlled substance. Roppo was not present, nor was his name mentioned at either of the first two drug transactions between Karas and Spahn. Indeed, Spahn testified that he had never heard Roppo’s name nor had he spoken with him prior to the arrest. The most incriminating evidence against Roppo is Majcher’s testimony that he saw Roppo pass an “object” in his right hand to Karas prior to the time that Karas made the third delivery of cocaine to Spahn. However, Majcher was unable to state precisely what that object was, nor did the agents attempt to recover Roppo’s fingerprints from the plastic bag of cocaine which Karas delivered to Spahn. Search of Roppo’s car after the arrest did not produce the other seven ounces of cocaine which were supposed to be used in the transaction. Even considering Karas’ statement to Spahn that his “connect and his connect’s connect” were waiting in a nearby Wendy’s parking lot, we find the evidence against Roppo insufficient to support the State’s position that Roppo aided or participated in Karas’ delivery of cocaine to Spahn.

Finally, we turn to Steinbach’s contention that the State should have dismissed the indictment against him because Spahn’s testimony before the grand jury was misleading. In particular, Steinbach complains that Spahn testified before the grand jury that he had a telephone conversation on August 27, 1987, regarding narcotics. However, at trial, Spahn testified that in his conversation with Steinbach he said they were meeting over “this deal.”

Steinbach correctly asserts that a court may properly dismiss an indictment based upon perjured testimony (See People v. Shaw (1985), 133 Ill. App. 3d 391, 478 N.E.2d 1142; People v. Rivera (1979), 72 Ill. App. 3d 1027, 390 N.E.2d 1259); nonetheless, a court must proceed with restraint in ascertaining due process violations in indictment procedures and should dismiss an indictment only when the violation is clear and has been found with certainty. (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004.) While Spahn’s testimony that the August 27 conversation concerned narcotics may have been a slight misstatement, we do not find that it rises to the level of perjury. Therefore, we find the trial court was not required to dismiss the indictment against Steinbach.

For the foregoing reasons, the judgment of conviction of the circuit court of Cook County as to Steinbach is affirmed; the judgment of conviction as to Roppo is reversed.

Affirmed in part; reversed in part.

EGAN, P.J., and RAKOWSKI, J., concur.