author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER LETSOS, Defendant-Appellant.
    Second District
    No. 2 — 89—0709
    Opinion filed September 28, 1990.

      Kenneth D. Hubbard, of Joseph M. Laraia & Associates, P.C., of Wheaton (Joseph M. Laraia, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and James E. Ryan, State’s Attorney, of Wheaton (Robert J. Ruiz, Solicitor General, and Kathryn M. Frost and Terrence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

After a bench trial, the defendant Peter Letsos was convicted of violating subsection 44(j)(l)(A) of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1989, ch. 111/2, par. 1044(j)(l)(A)), based on allegations that he discharged a contaminant into the waters of the State without a permit. He was sentenced to two years’ probation, 200 hours of community service and a $7,500 fine. He appeals, arguing that subsection 44(j)(l)(A) is unconstitutional and that the State failed to prove him guilty beyond a reasonable doubt. We affirm.

The major events underlying the charges against the defendant occurred in Glen Ellyn (the village) on September 30, 1987, at or near a former gas station (the property). The defendant had purchased the property for redevelopment. The evidence showed that midafternoon on that day, the defendant began pumping the contents of underground gas storage tanks located on the property into the village’s storm sewers. He allegedly believed that the tanks contained only water. During the pumping it was determined that the tanks were being emptied of gasoline, and the pumping was stopped.

Based on those events, the defendant was cited with the above-stated offense, as well as calculated criminal disposal of hazardous waste, criminal disposal of hazardous waste, and reckless disposal of hazardous waste (Ill. Rev. Stat. 1989, ch. HV-k, pars. 1044(b), (c), (f), respectively). After the close of the State’s case the defendant moved for a directed verdict. The court granted the motion as to the latter three charges; those charges are not at issue in this appeal. The defendant brought this appeal from his conviction based on subsection 44(j)(l)(A).

The defendant’s first argument on appeal is that subsection 44(j)(l)(A), together with the other sections upon which its definition depends, is unconstitutional because it is vague, ambiguous, and subject to arbitrary enforcement. The defendant’s argument focuses upon the Act’s broad definition of the pivotal term “contaminant” (Ill. Rev. Stat 1989, ch. 1111/2, par. 1003.06). The State and Federal Constitutions’ due process provisions require that criminal statutes provide “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” People v. Jihan (1989), 127 Ill. 2d 379, 385.

Under subsection 44(j)(l)(A), it is unlawful for a person knowingly to violate subsection 12(f) of the Act. (111. Rev. Stat. 1989, ch. IIIV2, pars. 1044(j)(l)(A), 1012(f).) Subsection 12(f) provides, in relevant part, that “No person shall” cause or allow the discharge of any “contaminant” into the waters of the State without compliance with a National Pollutant Discharge Elimination System (NPDES) permit. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1012(f); see ch. IIIV2, pars. 1011(a)(2), 1039(b); 33 U.S.C. §1342 (1986).) Subsection 12(f) further provides that no permit shall be required for discharges that do not require a permit under the Federal Water Pollution Control Act (the Pollution Control Act). (HI. Rev. Stat. 1989, ch. HV-k, par. 1012(f).) The Act defines “contaminant” as “any solid, liquid, or gaseous matter, any odor, or any form of energy, from whatever source.” Ill. Rev. Stat. 1989, ch. 1111/2, par. 1003.06.

We agree with the defendant that the Act’s definition of “contaminant” is so broad as to include most substances. However, as the State observes, the Act does not require a permit for discharge of any “contaminant,” but only for discharges requiring a permit under the Pollution Control Act. Thus, we consider subsection 44(j)(l)(A)’s constitutionality in light of the relevant Federal provisions.

The Pollution Control Act does not rely upon the term “contaminant.” Rather, under it a permit is required only for the discharge of a “pollutant.” (33 U.S.C. §§ 1311(a), 1342(a) (1986); EPA v. California ex rel. State Water Resources Control Board (1976), 426 U.S. 200, 205, 48 L. Ed. 2d 578, 583, 96 S. Ct. 2022, 2025; compare Ill. Rev. Stat. 1989, ch. HV-lz, par. 1011(a)(2).) The Pollution Control Act defines “pollutant” as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water[, with some exceptions].” 33 U.S.C. §1362(6) (1988).

The State argues that subsection 44(j)(l)(A) is not unconstitutionally vague when it is read together with the appropriate sections of the Pollution Control Act. We agree.

The defendant argues generally that a State statute which requires review of an entire Federal statute to ascertain fully its meaning is not constitutionally acceptable. We are not persuaded by his unsupported argument. The Act relies upon the Pollution Control Act for complete definition of the offense. However, as the State argues, a State statute may adopt Federal statutory provisions by reference. See Thorpe v. Mahin (1969), 43 Ill. 2d 36, 49.

The defendant also argues that the Pollution Control Act cannot cure the Act’s unconstitutional vagueness, because the Pollution Control Act refers to the term “pollutant” rather than the term “contaminant” used in the Act (compare Ill. Rev. Stat. 1989, ch. IIIV2, par. 1011(a)(2), with 33 U.S.C. § 1342(a) (1986)). We find that the difference is of no consequence and reject the defendant’s unsupported argument. Section 12(f) of the Act prohibits contaminant discharge without a permit only if a permit is required under the Pollution Control Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1012(f)); analysis of the Pollution Control Act points clearly to the Federal definition for “pollutant” to determine whether the Pollution Control Act requires a permit. The definition of the subsection 44(j)(l)(A) offense is clear; it is immaterial that the Act and the Pollution Control Act use different operative terms.

The defendant additionally argues that even if the Federal definition for “pollutant” satisfies constitutional requirements by limiting the subsection 44(j‘Xl)(A) offense, the definition is not sufficient in this case. The defendant relies upon the fact that the Pollution Control Act definition for “pollutant” does not include gasoline, the substance at issue here. Although the Pollution Control Act definition does not specifically name “gasoline” or “petroleum products,” the United States Court of Appeals has stated that it is apparent that Congress intended to include discharged gasoline in the definition. (United States v. Hamel (6th Cir. 1977), 551 F.2d 107, 111.) In light of Hamel, and in the absence of counterauthority, we reject the defendant’s argument.

To prevail in a vagueness challenge to a statute which does not implicate first amendment concerns, a criminal defendant must demonstrate that the statute in question was vague as applied to the conduct for which he is being prosecuted. (People v. Jihan (1989), 127 Ill. 2d 379, 385.) In summary, we do not find that the defendant has demonstrated vagueness. Rather, we find that the relevant statutory provisions considered as a unit are sufficiently clear and precise. The defendant has presented no authority to persuade us otherwise.

Insofar as the defendant argues that the State has not shown that one could obtain a permit to discharge gasoline in compliance with the Act and/or the Pollution Control Act, we find that his unsupported presentation does not merit lengthy comment. Assuming for the sake of argument that no permit was available for the discharge of gasoline from the defendant’s underground storage tanks, the plain language of the provisions before us does not establish that a permit must be available for a challenged discharge before subsection 44(jXlXA) can be invoked.

The defendant’s second argument on appeal is that he was not proved guilty beyond a reasonable doubt. He argues that there existed insufficient proof that he knew either that he was discharging something other than water into the storm sewer or that the discharge required a permit. We assume for the sake of argument that the State had the burden to prove both of those elements. We review the evidence in that light.

The State’s first witness was Glen Ellyn staff engineer Robert E. Kincaid. Mr. Kincaid testified that he drove past the property at 4:25 p.m. on September 30. He observed the defendant pumping liquid into the gutter and detected a strong odor of gasoline. He questioned the defendant, who told him he was pumping water. Thereafter he radioed for police, reporting that a person was pumping gasoline into the storm sewer. He did not get out of his car and did nothing to turn off the pump.

Glen Ellyn police lieutenant Howard Thiele testified that he was sent to the property at 4 p.m. Upon arriving, he noticed the defendant standing next to a pump; he also noticed a faint odor of gasoline. After questioning the defendant, who stated that he was pumping water, Officer Thiele approached the discharge hose and noticed a reddish-brown discharge fluid. According to Officer Thiele, Glen Ellyn volunteer fireman Robert Morton, who arrived at the same time as he, placed his hand in the fluid stream and both men determined from the hand’s smell that the discharge fluid was gasoline. Captain Morton then turned off the pump.

Glen Ellyn architect Charles Norris testified that the defendant had hired him to design a commercial building for the property. According to Mr. Norris, the defendant and he had discussed the property’s fuel tanks and their removal within EPA guidelines. Additionally, Norris’ construction drawings included the statement that the tanks and their contents had to be removed in accordance with EPA guidelines. Norris testified that he had not discussed with the defendant the contents of the EPA regulations or any permit requirements; he also had not described for the defendant how to comply with the EPA. Norris did not know what was in the tanks.

Fire Captain Morton testified consistently with Lieutenant Thiele. According to Morton, when he arrived at the property he saw a pump pumping a dark red liquid appearing to be gasoline. At the discharge hose, the pump liquid had the pungent odor of gasoline. According to Captain Morton, when he confronted the defendant with the assertion that the pumped liquid was gasoline, the defendant, who had claimed to be pumping water, responded with a disbelieving stare. Later, Morton viewed Lake Ellyn, into which the storm sewer flowed, and observed an oily slick on its top.

Glen Ellyn police officer Romen testified that he arrived at the property at 4:40 p.m. He tested the storage tanks’ contents, and the results suggested that the tank from which pumping had occurred had a bottom one inch of water and a total of 63 inches of liquid contents. The other three tanks tested contained, respectively, 92 inches of water, 97 inches of a liquid other than water, and 45 inches of water.

Construction manager Paul Nielsen testified that his company was bidding for work on the defendant’s property. Mr. Nielsen stated that he had informed the defendant that he should have the property’s storage tanks removed by a licensed EPA excavator. The men did not discuss the tanks’ contents, and Nielsen did not inform the defendant on how to remove the contents.

Excavating contractor Les Phillips testified that he had submitted a bid to remove the property’s storage tanks. He further testified that he had spoken by telephone with a person who had identified himself as owner of the property and informed him that the tanks must be pumped out by a licensed waste hauler and cleaned out for removal. Phillips did not, however, recall any conversation about a permit.

The State’s final witness was underground storage tank installer Steven Rozycki. Rozycki testified that in spring of 1987 the defendant contacted him to remove underground storage tanks on the property. In their initial conversation, Rozycki understood that the tanks were empty. He submitted a bid to remove empty tanks. Around September 27, the defendant told Rozycki in a telephone conversation that a representative of the Clark Oil company, which had previously operated a service station on the property, had stated that the tanks were filled with water. Rozycki had told the defendant that the tanks must be emptied for removal. Further, Rozycki had explained that the liquid in the tanks could be removed by collecting any hydrocarbons, separating out the water, and pumping the water into the sewer if the village agreed. Alternatively, he had explained, the defendant could call a special hauler. In their conversations, Rozycki had offered an estimate of the defendant’s cost to filter the tanks’ contents.

The defense first called Glen Ellyn building inspector Charles Olson. Olson testified that on September 30 he saw the defendant at the property and stopped for a social visit. He drove through the discharge liquid when he stopped. At that time, he noticed no gasoline odor. He also noticed no odor at his car, approximately 20 to 25 feet from the pump. During their conversation near the pump, at around 3:45 p.m., the defendant asked Olson if he smelled gasoline; according to Olson, when he stood near the defendant he smelled a faint gasoline odor. The liquid discharge appeared to Olson to be water. He made no attempt to stop the defendant’s pumping.

Glen Ellyn police community service officer Richard Perez testified that he went to the property after a report that someone was pumping gasoline. When he passed within a few inches of the discharge hose, he did not smell anything. When he looked closely at the liquid, felt and smelled it, he noticed a reddish-orange color and a slight smell of gasoline. According to Perez, although it did not appear in his report, the defendant had claimed to him that Inspector Olson had given permission for the pumping.

Carl Beckmen, owner of the service station across the street from the property, testified that a representative of the Clark Oil Company had dismantled the property’s pumps and taken three to four hours to fill the underground tanks with water from a fire hydrant. Also according to Beckmen, around September 23 he had informed the defendant that he had observed that process. Beckmen had believed that the tanks contained only water, as it was illogical that anyone would abandon expensive gasoline. The defendant had borrowed Beckmen’s stick for measuring the tanks’ contents; he had not, however, taken “test paste” for testing the contents of the tanks. The defendant had expressed to Beck-men that he agreed that the tanks were full of water.

Mr. Beckmen’s service station manager James Raine testified that while working at Beckmen’s, he had observed the defendant pumping from the property’s underground tanks for approximately 40 minutes. During that time, between 4 and 4:15 p.m., he had come within 30 feet of the discharge hose. He described the discharge substance as water and said that he smelled no odor of gasoline coming from its direction.

Another Beckmen worker, Brett Fisher, testified that he had helped the defendant open the property’s tank intake lids, stick in a hose, and stretch the discharge hose toward the street. He did not smell gasoline. Also, he had observed a discharge of what appeared to be water. During the next 45 minutes he was working approximately 20 or 25 feet away from the discharge; he never detected gasoline odor. According to Fisher, the defendant stayed near the pump throughout the pumping.

The defendant testified on his own behalf that he had emigrated to the United States in 1956 when he was 17 years old. He had a grade school education and had worked primarily in restaurants. According to the defendant, although he had looked at Mr. Norris’ plans, before September 30 he had no idea what “EPA” stood for. The defendant testified to talking with Beckmen and borrowing his tank measuring stick. According to the defendant, after measuring the tanks, “deep in my heart I believed it was water.” The defendant remembered that Mr. Rozycki had said that water in the tanks could go into the sewer. According to the defendant, if Rozycki had said something else, he had not heard it, as he believed the tanks held only water.

The defendant lastly testified that on September 29, he had happened to notice a friend’s pump; at approximately 3 p.m. on September 30, he had borrowed it. While he was pumping, he stayed by the pump and detected no gasoline odor from there. He did not go to the end of the discharge hose. Even after questioning by Officer Perez, the defendant had still believed that the discharge was water.

In arguing that the State did not prove him guilty beyond a reasonable doubt, the defendant first asserts that the evidence clearly shows that he was not aware that there was gasoline left in the underground storage tanks or that he was pumping anything but water. In his reasonable doubt argument, the defendant also asserts that the State failed to meet its burden to prove that he was required to obtain an EPA permit before disposing of the contaminant. He largely blends together his two focuses.

Particularly regarding his knowledge that there was gasoline in the pumped discharge, the defendant acknowledges that some gasoline was pumped from the tanks. However, he challenges that there is no evidence regarding either the quantity of gasoline pumped or the length of time he was pumping at least a partial gasoline mixture. The defendant reasons that as gasoline floats on water, and as there was water left in the tank from which he had been pumping the bottom, the pump had apparently reached gasoline only moments before the arrival of Lieutenant Thiele and Captain Morton. According to the defendant, he made an honest mistake on the tanks’ contents. Particularly regarding his knowledge of the need for a permit, the defendant notes that the State failed to prove even that he knew what the letters “EPA” represented.

More generally, the defendant notes his limited education and experience. He also notes that Mr. Beckmen had told him that there was only water in the tanks, that Mr. Rozycki had described pumping water from the tanks into the storm sewer, and that at least one of the tanks contained only water when it was tested by Officer Romen. Additionally, he notes that he repeatedly had stated that he believed that the tanks held only water and that he had registered surprise when he was confronted ultimately by Captain Morton. The defendant also notes that several witnesses other than himself noticed no gasoline odor at the pump. He emphasizes that village officials Olson and Perez failed to stop the pumping, confirming his understanding that he was engaged in innocent activity, according to the defendant.

The defendant’s argument also notes that the cost to filter the tanks’ contents, as estimated by Mr. Rozycki, was negligible compared to the defendant’s total financial undertaking connected with the property. The defendant’s suggestion therefrom is that he would not have knowingly undertaken prohibited conduct in order to avoid the negligible cost. That is particularly so, the suggestion continues, given the circumstances here. The defendant undertook pumping in the middle of the day and in the village’s business district; the pumping took an extended time, and the defendant stayed on the site at all times. According to the defendant, the circumstances show that he believed he had nothing to hide.

When faced with a question of the sufficiency of the evidence, a reviewing court must examine the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Examining the evidence in the prosecution’s best light, we do not find that the court’s finding was so palpably contrary to the verdict or improbable that it created a reasonable doubt of the defendant’s guilt. See People v. Romero (1989), 189 Ill. App. 3d 749, 754.

As to the defendant’s knowledge of permit requirements, we reiterate the following. Architect Norris informed the defendant that the tanks were to be removed in accordance with EPA regulations. Also, his plan drawings included notations of the need for compliance; all of those notations were discussed with the defendant, according to Norris. While the preliminary drawing’s notation referred to “EPA regulations,” a later drawing noted “comply with regulations of the Environmental Protection Agency.” Excavator Phillips testified that he told his caller, presumably the defendant, who acknowledged speaking with Phillips, that the tanks’ contents would need to be removed by a licensed waste hauler before the tanks could be removed. Underground storage tank installer Rozycki testified that he had explained to the defendant that disposal of the tanks’ contents required either the hiring of a special hauler or the separation out, collection, and hauling away of any hydrocarbons before pumping of water into the village sewer pursuant to necessary village approval.

Furthermore, as to the defendant’s knowledge that he was pumping gasoline, witnesses Olson, Perez, and Kincaid all testified that they noticed the smell of gasoline while the defendant was pumping. Furthermore, the defendant asked Olson, without prompting, whether he smelled anything. Given this evidence, the clear fact that the defendant knowingly was pumping from gasoline storage tanks, and the evidence that throughout the pumping the defendant was standing on the site, near the discharge, the trial court clearly could determine that at some time during the pumping process the defendant had knowledge that he was pumping gasoline.

The offense did not require that the defendant have knowledge from the outset of his pumping. We find that the evidence supports the court’s conclusion and that the State proved beyond a reasonable doubt that the defendant knowingly violated subsection 12(f) of the Act.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE COCCIA

license: Public Domain

text:
    AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff-Appellee, v. TARA MAHONEY, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—0316
    Opinion filed September 7, 1990.

      Sullivan, Smith, Hauser & Noonan, Ltd., of Chicago (Richard J. Smith, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Introduction

Defendant Tara Mahoney appeals from two orders entered against her by the circuit court. In the first order, the court denied her motion to transfer venue from Cook County; in the second order, the court entered summary judgment in favor of plaintiff American Country Insurance Company, declaring Mahoney’s automobile insurance policy null and void from its inception. We affirm for the following reasons.

Background

American filed its complaint for declaratory judgment in chancery on June 13, 1988. American alleged that on June 12, 1986, Mahoney applied in writing for automobile liability insurance on a 1986 Pontiac Sunbird. American further alleged that Mahoney represented in her application that she was the sole driver of the insured vehicle, she was the vehicle’s sole owner, and no member of her household had a moving violation within the last five years. American attached Mahoney’s application as an exhibit to its complaint. Mahoney answered “No” in response to the following questions:

“4 Has applicant or any operator of the auto ever had:
(a) Driver’s license revoked or suspended?
(h) Driving while intoxicated?”

The application also provided:

“ALL QUESTIONS MUST BE TRUTHFULLY ANSWERED. ANY FALSE OR FRAUDULENT ANSWERS MAY RESULT IN DENIAL OF COVERAGE.
Applicant’s Statement: The applicant hereto, states that he read this application and attests that all answers given by him to the questions asked herein are truthful to the best of his knowledge and belief and that said answers were made as inducement to the insurance company to issue a policy, and it is a special condition of this policy that the policy shall be NULL and VOID and of no benefit or effect whatsoever as to any claim arising thereunder in the event that the attestations or statements in this application shall prove to be false or fraudulent in nature. It is understood that a copy of this application shall be attached to and form a part of the policy of insurance when issued and that it is intended that the company shall rely on the contents of this application in issuing any policy of insurance or renewal thereof.”

In reliance on these representations, American averred, it issued a policy to Mahoney.

American went on to allege that Mahoney’s representations were false and fraudulent within the meaning of section 154 of the Hlinois Insurance Code (HI. Rev. Stat. 1987, ch. 73, par. 766). According to American, Mahoney and John G. Bleile were residents of the same household; Bleile was the co-owner of the insured auto; he was a regular operator of the auto for at least 50% of its use; and in the three years prior to the issuance of the policy, he had been convicted of numerous traffic violations, including driving while intoxicated and reckless driving, for which his driving privileges were revoked effective March 20, 1986. American also attached a copy of Bleile’s driving record to its complaint.

On March 18, 1988, American claimed, Mahoney was involved in an accident with Stephen Cregar while driving the auto. In this accident the Pontiac was damaged, Mahoney was injured, Cregar was injured, and his auto was damaged. Mahoney then asserted claims under the policy. American stated that Cregar might assert claims under it as well.

American alleged that it learned of Mahoney’s misrepresentations on June 1, 1988. American attached a copy of its letter to Mahoney, dated June 8, 1988, to the complaint. That letter states in part:

“We return to you herewith check No. 03478 in the sum of $1,534.00 which is the total premiums received for insurance with this Company. Due to your misrepresentation and concealment of material facts on your application for insurance with this Company, you do not have nor have you ever had insurance with this Company.”

American concluded that an actual controversy existed which could be fully and finally determined by a declaratory judgment, and it prayed that the chancellor adjudge and declare Mahoney’s policy void from its inception.

On August 25, 1988, American filed its amended complaint. American named General Motors Acceptance Corporation as an additional defendant, alleging that GMAC was a loss payee under the insurance contract.

American filed its motion for summary judgment and supporting memorandum on September 29, 1988. American argued that section 154 of the Insurance Code has been construed to mean that either the insured’s intent to deceive the insurer or a material misrepresentation is sufficient to void a policy. And if Mahoney’s misrepresentations were not intentional, American contended, they were certainly material.

American repeated the allegation from its complaint that Mahoney, in her application, indicated she was the sole licensed operator in her household. American attached Mahoney’s affidavit as an exhibit to its motion for summary judgment; apparently, Mahoney originally filed this affidavit in a lawsuit that she commenced in Lake County, which we shall discuss at greater length below. According to her affidavit, Mahoney was residing with Bleile when she submitted the application for insurance. They lived together for at least one year before Mahoney submitted the application, and they continued to live together until one year thereafter. American also attached Bleile’s statement to its motion. According to Bleile, he was a licensed operator, although his driving privileges had been suspended. Thus, American concluded, Mahoney misrepresented the number of licensed drivers in her household.

American went on to contend that Mahoney likewise misrepresented the auto’s ownership. The Secretary of State’s records for the Sunbird, which American attached as an exhibit to its motion, showed title in her name as well as Bleile’s. The auto’s certificate of origin, which American also attached to the motion, reflected the names of both Mahoney and Bleile as purchasers. While Bleile was a co-signer on the loan because Mahoney had no established credit, he did trade in his car so the Sunbird could be purchased. Monthly payments from the date of purchase (December 1986) until their relationship ended (November 1987) were split between Bleile and Mahoney. In his statement, Bleile also admitted that he drove the auto 50% of the time; that the Sunbird was his primary vehicle; that he had no other insurance; and that he did not seek coverage for himself at that time, and instead had Mahoney take out insurance, because his license had been revoked.

American also attached the affidavit of Michael Odom, its personal lines manager, to the motion for summary judgment. Odom affirmed that, had the true facts about Mahoney’s misrepresentations been known when she applied for insurance, American never would have insured her. In conclusion, American requested that the circuit court find that because Mahoney made material misrepresentations in her application, it had the right to avoid the policy.

On October 27, 1988, Mahoney responded to American’s motion for summary judgment. Mahoney argued that Bleile’s statement did not comply with Hlinois Supreme Court Rule 191 (107 Ill. 2d R. 191), in that it was unsworn. Thus, she concluded, his statement could not be used to support the entry of summary judgment against her. Relying on her affidavit, which had been submitted by American, Mahoney noted that it was uncontradicted that she told her insurance agent she had a roommate who had a car; that the Pontiac was her auto and she relied upon Bleile only to help her with financing; that American never contacted her or made any inquiry of her regarding the alleged misrepresentations; that the insurance application did not request ownership information regarding the insured vehicle; that Bleile was not a licensed operator when the application was made, his license having been revoked; that the insurance agent filled out the application and could have asked follow-up questions; that Bleile’s driving record was irrelevant, because he was not involved in the accident and was not residing with her at that time; and that she did not intend to make any misrepresentations. Therefore, according to Mahoney, American was not entitled to summary judgment.

Simultaneously, Mahoney filed a motion to transfer venue to Lake or McHenry County. Mahoney alleged that the subject matter of the complaint was an auto accident which took place in McHenry County, where she was a resident when the accident occurred. Mahoney further alleged that after she was injured in the accident, she was taken to a hospital in Milwaukee and remained there for several weeks. She then came to live with her mother in Lake County, in order to be nursed. Mahoney concluded that the proper venue was the place of the accident or the defendant’s residence.

Mahoney also filed a motion to dismiss, pursuant to section 2 — 619 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) Mahoney claimed that she was involved in another accident on January 1, 1988. Jack Ribbens, she continued, was involved in the second accident. Ribbens was a necessary and indispensable party, she concluded, because his property rights were implicated by American’s attempt to have her policy declared void.

American filed its second amended complaint on November 22, 1988. American named Ribbens as an additional defendant, alleging that Mahoney breached the insurance contract by not reporting the collision with him.

On November 28, 1988, American responded to Mahoney’s venue transfer motion. American stated that its home office and principal place of business were in Cook County. At the time the insurance application was submitted and the policy issued, Mahoney also resided in Cook County. The policy was delivered in Cook County, the subject matter of the policy (the auto) was located primarily in Cook County, and defendant Ribbens was a Cook County resident. American argued that Mahoney waived her objection to venue in Cook County, by not meeting the time limits imposed by section 2 — 104(b) of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 104(b).) In addition, venue was proper in Cook County because American’s claim arose out of a Cook County transaction, and because Ribbens — who was only made a defendant at Mahoney’s insistence — was a Cook County resident. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101.) Finally, American maintained that Mahoney asserted nothing which would justify transfer.

On November 28, 1988, American also filed its reply to Mahoney’s response to its motion for summary judgment. American contended that Mahoney failed to raise any genuine issues of material fact. Responding to Mahoney’s claim that Bleile’s statement was not sworn, American noted that the court reporter, who reported the testimony in shorthand and later transcribed it, did certify the statement’s veracity. To eliminate any doubts concerning the statement’s sufficiency, however, American submitted a duplicate certificate, executed by Bleile, in which he attested that he read the statement and that it was true in substance and in fact.

A hearing on the parties’ motions was held on December 6, 1988. The circuit court denied Mahoney’s motion to transfer venue from Cook County. Mahoney then argued that the circuit court should abstain from ruling on the summary judgment motion, as American had a virtually identical motion under advisement by the circuit court of Lake County. American retorted that after it filed suit in Cook County, Mahoney commenced an action in Lake County. Mahoney’s lawsuit was primarily concerned with her claim that American wrongfully refused to return her damaged car after its claim investigation. But Mahoney also raised the coverage issues in Lake County. After Mahoney moved for summary judgment in that county on the coverage question, American filed a cross-motion for summary judgment in order to protect its rights. The circuit court of Cook County declined to abstain from ruling on American’s motion.

Mahoney then invoked — for the first time — section 143.19 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755.19), asserting that American was impermissibly attempting to retroactively cancel her policy. American responded that it was actually proceeding under section 154 and attempting to rescind the policy. The circuit court then ruled that Mahoney made material misrepresentations of fact, which were sufficient to avoid the policy under section 154.

The circuit court entered a written order on that day, formally denying Mahoney’s motion to transfer venue. The circuit court also granted American’s motion for summary judgment, on the grounds that Mahoney made material misrepresentations regarding question 4 of the insurance application, quoted above. The circuit court denied American’s motion concerning the other alleged misrepresentations. The order provided that it was not final, and the cause was continued for status until December 19, 1988. On that date, the cause was continued until January 4, 1989. On the latter date, American moved for entry of a final order. The circuit court ruled that — pursuant to its order of December 6, 1988 — Mahoney’s insurance policy was declared null and void from its inception. Mahoney then appealed to this court.

Analysis

THE VENUE ISSUE

Mahoney’s first argument on appeal is that the circuit court erred in denying her motion to transfer venue from Cook County. Section 2 — 101 of the Code of Civil Procedure provides:

“Generally. Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (HI. Rev. Stat. 1987, ch. 110, par. 2-101.)

American was not required to plead and prove that its selection of Cook County for the filing of this action was proper. (See Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 285, 507 N.E.2d 838, 840.) As the movant, Mahoney had the burden of proving that American’s selection of venue was improper; she was required to set forth specific facts, rather than conclusions, and show a clear right to the relief requested. Any doubts arising from the record’s inadequacy must be resolved against her. See Weaver, 116 Ill. 2d at 285, 507 N.E.2d at 840.

We do not think Mahoney met her burden of showing that venue in Cook County was improper. On the contrary, venue was proper under section 2 — 101(1) because defendants GMAC and Ribbens were residents of Cook County; the latter, in fact, was only made a defendant after Mahoney moved to dismiss American’s amended complaint for failure to join him. Venue was proper under section 2 — 101(2) because American’s cause of action arose out of a Cook County transaction: Mahoney’s submission of an insurance application, in which she made the alleged misrepresentations that prompted American to seek declaratory judgment. Mahoney has not cited any authority in this court to support the proposition that Cook County is not a proper venue, and she does not deny the connections to Cook County that American has identified. We cannot say, then, that the circuit court erred in denying her motion to transfer.

THE SUMMARY JUDGMENT ISSUE

Mahoney’s second argument on appeal is that the circuit court should not have entered summary judgment against her. More specifically, she argues that the circuit court should have abstained from ruling on American’s motion for summary judgment; that the circuit court erred in ruling that the Insurance Code’s section 154 governed the resolution of the coverage question; that the evidence did not support the entry of summary judgment against her; and that American’s renewal of her insurance policy, well before it learned of her misrepresentations, eliminated any right to defeat or avoid the policy. We shall address these points in the foregoing order.

We must reject Mahoney’s contention that the circuit court of Cook County abused its discretion by entertaining American’s motion for summary judgment while the Lake County circuit court allegedly had its virtually identical summary judgment motion under advisement. This court has stated before that it is the appellant’s duty to submit a record sufficient to show the error complained of and that any doubts arising from an incomplete record shall be resolved against the appellant. (See, e.g., Kostur v. Indiana Insurance Co. (1989), 192 Ill. App. 3d 859, 866, 549 N.E.2d 685, 690.) Mahoney has not supplemented the record with the Lake County pleadings; she merely attached copies of them to her briefs appendix. Even if thosé papers were properly before us, it appears that the Lake County cause has been stayed pending the outcome of this appeal. Moreover, it seems that the Cook County case was filed before the Lake County case, and that American only sought summary judgment on the coverage issue in Lake County via a cross-motion for summary judgment to protect its rights, after Mahoney raised that question in her motion for summary judgment. In light of these circumstances, the Cook County circuit court did not abuse its discretion by refusing to abstain.

We now turn to Mahoney’s theory that section 154 of the Insurance Code is inapplicable. Section 154 provides:

“Misrepresentations and False Warranties. No misrepresentation or false warranty made by the insured *** in the negotiation for a policy of insurance *** shall defeat or avoid the policy *** unless such misrepresentation *** shall have been stated in the policy *** or in the written application therefor, of which a copy is attached to or endorsed on the policy, and made a part thereof. No such misrepresentation *** shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or hazard assumed by the company.” (Ill. Rev. Stat. 1987, ch. 110, par. 766.)

American proceeded under section 154 in its complaint and in its motion for summary judgment, and Mahoney did not challenge that section’s applicability until the hearing of December 6, 1988. On that date, Mahoney argued for the first time that section 143.19 governed resolution of the coverage dispute. Section 143.19 states:

“Cancellation of automobile insurance policy — Grounds. After a policy of automobile insurance *** has been effective for 60 days, or if such policy is a renewal policy, the insurer shall not exercise its option to cancel such policy except for one or more of the following reasons:
* **
b. The policy was obtained through a material misrepresentation.” (111. Rev. Stat. 1987, ch. 73, par. 755.19.)

The gist of Mahoney’s argument seems to be that since American did not discover the alleged misrepresentations within 60 days of issuing the policy, it cannot deny coverage now.

We must conclude, however, that section 154 applies. In one of the cases cited by Mahoney, the appellate court stated that an insurance policy is “cancelled,” and the insurer’s act is a “cancellation,” when the insurer sends a written notice in which it positively and affirmatively indicates its intention that the policy shall cease to be binding upon the expiration of a stipulated number of days from the time when its intention is made known to the insured. (See Conley v. Ratayzcak (1980), 92 Ill. App. 3d 29, 33, 414 N.E.2d 500, 503.) In its letter of June 8, 1988, which American attached to its complaint and which we quoted above, American plainly informed Mahoney that she did not have nor did she ever have insurance as a result of her misrepresentations, and it returned all of the premiums she payed. Thus, American was not attempting to cancel Mahoney’s insurance, as that term was defined in Conley; instead, American was attempting to defeat or avoid the policy, as contemplated by section 154. By no stretch of the imagination can American’s conduct be seen as a cancellation, retroactive or otherwise.

Next, Mahoney asserts that the circuit court improperly considered Bleile’s statement in ruling upon American’s motion for summary judgment. Mahoney objected below, in her response, that his statement did not comply with Supreme Court Rule 191, which provides:

“(a) Requirements. Affidavits in support of *** a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure, *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; *** shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” (107 Ill. 2d R. 191(a).)

American replies that Mahoney has not preserved her objection to the sufficiency of Bleile’s statement, because she failed to get the circuit court to rule upon it. (See Oak Trust & Savings Bank v. Amerino (1978), 64 Ill. App. 3d 1030, 1032, 381 N.E.2d 1389, 1391 (it is nonmovant’s duty to bring Rule 191 objection to circuit court’s attention and to preserve ruling thereon; failure to do so waives the objection).) In any event, American responds, where a sworn statement substantially complies with Rule 191(a), it is properly considered in ruling upon a motion for summary judgment. (See Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 611-12, 480 N.E.2d 1176, 1183.) Also relying upon Galinski, American notes that Mahoney had ample time in which to depose Bleile, if she wished to test the truth of his statements through cross-examination.

In view of these authorities, the circuit court did not err in considering Bleile’s statement. Mahoney failed to preserve her Rule 191(a) objection to his statement by not obtaining a ruling on it. Even if Ma-honey had preserved her objection, however, the statement’s certification by the court reporter and Bleile substantially complied with the requirements of Rule 191(a). Lastly, we must agree with American that Mahoney was free to depose Bleile, and test his veracity, yet she elected not to do so.

With this in mind, we come to Mahoney’s assertion that the record does not support the entry of summary judgment against her. The law is clear that a misrepresentation in an application for insurance is a statement of something as a fact which is untrue and affects the risk undertaken by the insurer. (Garde v. Country Life Insurance Co. (1986), 147 Ill. App. 3d 1023, 1031, 498 N.E.2d 302, 308.) Whether an applicant’s statements are material depends upon whether reasonably careful and intelligent persons would have regarded the facts stated as substantially increasing the chances of the events insured against, so as to cause a rejection of the application. Incomplete answers or failure to disclose material information in response to a question in an application may constitute a material misrepresentation. This is so because the misrepresentation prevents the insurer from adequately assessing the risk involved. (See Garde, 147 Ill. App. 3d at 1031, 498 N.E.2d at 308.) An insurance applicant has the duty to act in good faith, and an insurer is entitled to truthful responses so that it may determine whether the applicant meets its underwriting criteria. Accordingly, the applicant must disclose all information and let the insurer determine its materiality. While the materiality of a misrepresentation is ordinarily a question of fact, the question is appropriate for summary judgment if the misrepresentation is of such a nature that all would agree that it is or is not material. See Garde, 147 Ill. App. 3d at 1032, 498 N.E.2d at 308.

Contrary to Mahoney’s claims, the record in this case supports the entry of summary judgment against her. In the first place, we note that she came forward with no evidence in opposition to that submitted by American — even her own affidavit was submitted by American. Indeed, Mahoney has not done so much as answer any of American’s complaints. In the second place, following Garde, her misrepresentations were material. As previously mentioned, Mahoney answered in her application that no operator of the Sunbird ever had a driver’s license suspended and that no driver of the auto had been convicted of driving while intoxicated. Bleile’s uncontradicted statement and driving record show that he was an operator of the vehicle, that his license had been revoked frequently, and that he had frequently been convicted of driving under the influence, among other traffic offenses. These misrepresentations alone are sufficient to justify summary judgment, for no reasonable person could deny that they substantially increased the chances of the events insured against.

Finally, we reject Mahoney’s argument that American’s decision to renew her insurance policy, well before it learned of her misrepresentations, eliminated any right to defeat or avoid the policy. Mahoney has not cited authority, and our own research has disclosed no authority, that supports this novel claim. And the text of section 154 imposes no time limitation on the right, which it grants the insurer, to defeat or avoid a policy; that is, section 154 does not prohibit an insurer from seeking to defeat or avoid a policy after the expiration of 60 days, or after it decides to renew a policy, in ignorance of the insured’s material misrepresentations. Mahoney’s application itself clearly provided that American would rely upon the representations therein when considering whether to renew her policy. Consequently, Mahoney was given notice that her representations would be relied on during the renewal process. Finally, we can reasonably infer from Odom’s affidavit that if American had known the truth regarding the misrepresentations made by Mahoney, she would have had no policy for it to renew.

Conclusion

Because we have determined that the circuit court properly denied Mahoney’s motion to transfer venue from Cook County and that it properly entered summary judgment against her on the coverage issue, we affirm.

Affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE SCARIANO

text:
    LARRY SMITH et al., Indiv. and as Special Adm’rs for the Estate of Christopher Duane Smith, Deceased, Plaintiffs-Appellants, v. MERCY HOSPITAL AND MEDICAL CENTER, Defendant-Appellee.
    First District (2nd Division)
    No. 1 — 88—3476
    Opinion filed September 18, 1990.

      Rivkin, Radler, Dunne & Bayh, of Chicago (Alan E. Case and David M. Zinder, of counsel), for appellants.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Jonathan Regunberg and Kathleen A. Brosnan, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

As a result of injuries sustained en ventre sa mere, Christopher Duane Smith (Christopher) was delivered stillborn on June 6, 1983. On June 3, 1985, his parents, plaintiffs Larry and Yolanda Smith, filed a complaint pursuant to the provisions of the Wrongful Death Act (or Act) (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.) against Mercy Hospital and Medical Center (defendant) alleging that its negligent medical care of Yolanda Smith (Yolanda) during the final days of her pregnancy caused Christopher’s stillbirth. They appeal from two orders of the circuit court dismissing their claims for the loss of (1) Christopher’s services and support and (2) his society.

In count I of their two-count complaint, plaintiffs alleged that Yolanda was in defendant’s care from March to June 1983, the final trimester of her pregnancy with Christopher; that defendant hospital, which she entered on June 4, 1983, failed to give her proper information about the signs and symptoms of labor; and that instead of advising her to remain at its facilities, it directed her to return home. Yolanda complained of new symptoms to defendant on June 5, 1983, when it again failed (1) to give her proper instructions; (2) to use appropriate procedures; or (3) to conduct tests that could have saved Christopher’s life. According to the complaint, these negligent acts and omissions of defendant caused Christopher’s stillbirth on June 6, 1983. Plaintiffs claimed damages for the “loss of benefits of pecuniary value, including money, goods and services which Decedent would have contributed to them had he lived and *** a loss of Decedent’s society.” In count II, they sought recovery for negligent infliction of emotional distress, and although this count was also dismissed with prejudice, it is not part of this appeal.

In moving to dismiss count I, defendant argued that Illinois, as a matter of law, does not permit the recovery of damages for loss of services and society caused by the wrongful death of an unborn child; however, Circuit Judge Willard J. Lassers found that section 2.2 of the Wrongful Death Act not only “unmistakably” created a cause of action for a wrongful death of a fetus but that, contrary to defendant’s contention, Illinois recognizes a right to recover damages under the Act for the loss of a stillborn child’s society. The judge accordingly denied defendant’s motion with respect to plaintiffs’ loss of society, but granted the motion relating to their claim for the loss of the child’s services.

Several months later, defendant moved to dismiss plaintiffs’ claim for the loss of Christopher’s society on the basis of Hunt v. Chettri (1987), 158 Ill. App. 3d 76, 510 N.E.2d 1324, appeal denied (1987), 116 Ill. 2d 555, 515 N.E.2d 108, in which the appellate court for the fifth district denied loss of society benefits to the plaintiffs for the wrongful death of their unborn child, drawing the line for the maintenance of such a cause of action at birth. Acknowledging that he was bound by the decision in Hunt, Circuit Judge Dean J. Sodaro struck the only remaining portion of the complaint. (See Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1018, 531 N.E.2d 989, 993.) Plaintiffs appeal from both orders of dismissal.

The issues thus presented for our review are (1) whether plaintiffs, as the parents of a stillborn child, may recover damages in a wrongful death action for the loss of their child’s society and whether they are entitled to a presumption of such loss; and (2) whether in the absence of a presumption of pecuniary injury for the loss of the child’s services and support, plaintiffs are entitled to prove such loss. We reverse both orders of dismissal and remand the cause for trial.

Our scope of review is well defined and well established. At this procedural juncture “all well-pleaded facts in the complaint and all reasonable inferences from them will be regarded as true.” (Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 499, 520 N.E.2d 37.) The reviewing court must further consider the complaint as a whole and “should interpret the facts alleged *** in the light most favorable to the plaintiffs.” (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 836, 422 N.E.2d 86.) Accordingly, the defendant’s motions should not have been granted unless it affirmatively appears that no set of facts could be proved which would have entitled plaintiffs to relief. People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 435 N.E.2d 463; Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, 463 N.E.2d 913.

We are persuaded that permitting parents to recover for the loss of their stillborn child’s society and entitling them to a presumption thereof is a natural and logical outgrowth of existing law in Illinois. Promulgated in 1853, the Illinois Wrongful Death Act has remained virtually unchanged since then. It allows a deceased family member’s personal representative to sue on behalf of the spouse or next of kin for “pecuniary injuries” where the victim’s death was caused by negligence. (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.) Section 1 of the Act provides:

“§1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” (Ill. Rev. Stat. 1989, ch. 70, par. 1.)

Section 2 of the Act provides in pertinent part as follows:

“[I]n every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” Ill. Rev. Stat. 1989, ch. 70, par. 2.

Since “pecuniary injuries” are not defined in the Act, our courts have evolved their own formulaic definition of the term. In the first of its decisions to construe the Act, City of Chicago v. Major (1857), 18 Ill. 349, the supreme court limited “pecuniary injuries” to the economic loss of the deceased’s services and support. Because the deceased in Major happened to be only four years old, the court also recognized a presumption of pecuniary loss. (See also City of Chicago v. Scholten (1874), 75 Ill. 468, 471; Bullard v. Barnes (1984), 102 Ill. 2d 505, 516, 468 N.E.2d 1228, 1233.) Historically, then, loss of society and loss of consortium were for a considerable period of time not recoverable elements of damage, an exclusion based on the view that the loss of the companionship of the decedent was not capable of pecuniary valuation. (M. Polelle & B. Ottley, Illinois Tort Law 505 (1985).) In recent decades, however, the trend has been to interpret the term “pecuniary injuries” more expansively, which has led to the inclusion therein of not only purely economic loss, but also loss of society. For example, in Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 133 N.E.2d 288, cert, denied (1956), 352 U.S. 833, 1 L. Ed. 2d 53, 77 S. Ct. 49, the court recognized that the loss of a deceased father’s “felicity, care, attention, and guidance” were compensable as pecuniary injuries under the Act. In Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352, the court declined to allow a common law action brought by a widow and her minor child for the deprivation of the father’s “support, *** companionship, guidance, advice, love and affection,” because an adequate remedy already existed under the Act, and unanimously held that the term “pecuniary injuries” was broad enough to include most of the items of damages the plaintiffs had claimed in the case. To the same effect is Knierim v. Izzo (1961), 22 Ill. 2d 73, 82-83, 174 N.E.2d 157, 162-63. In Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163, the court, relying on Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, in which it held that there was no basis in modern society for the denial of a wife’s common law action for loss of consortium, and relying also on Hall, ruled that loss of a spouse’s society is a compensable pecuniary injury under the broad wording of the Act. However, although the parents of a deceased minor child were long entitled to a presumption of the loss of the child’s services and earnings, prior to June 1984, Illinois courts refused to allow recovery for the loss of a child’s society despite the absence of such a proscription in the Act. See, e.g., Trotter v. Moore (1983), 113 Ill. App. 3d 1011, 447 N.E.2d 1340, rev’d (1984), 101 Ill. 2d 551, 468 N.E.2d 1236.

Then, in the case of Bullard v. Barnes (1984), 102 Ill. 2d 505, 516-17, 468 N.E.2d 1228, 1233, the supreme court removed the presumption of damages arising from the loss of a minor child’s services and support, reasoning that “the presumption that parents derive significant financial benefits from their children bears little, if any, resemblance to modern family life”; however, since today “the chief value of children to their parents is the intangible benefits they provide in the form of comfort, counsel and society,” the court recognized instead a rebuttable presumption of the loss of a minor child’s society. (102 Ill. 2d at 516-17, 468 N.E.2d at 1234.) Reaffirming that “the trend in our more recent decisions under the Wrongful Death Act has been to expand the scope of pecuniary injury to encompass nonmonetary losses,” the court rejected defendant’s urging “that we await further indication from the General Assembly,” explaining that in light of its rulings in Hall, Elliott and Knierim, “it would be anomalous to now deny parents” recovery in a wrongful death action “for loss of their children’s society.” (Bullard, 102 Ill. 2d at 514-15, 468 N.E.2d at 1232-33.) Joining a number of other jurisdictions, the court also declared that in calculating damages for loss of society the trier of fact must include a setoff for the child’s rearing expenses. (Bullard, 102 Ill. 2d at 518-19, 468 N.E.2d at 1234-35.) And in 1986, the court, in refusing “to draw a line based solely on the age of a child,” extended the Bullard presumption of damages even further, to include the lost society of adult children. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 120, 499 N.E.2d-1373, 1379.) “The intent of Bullard,” said the court, “was to recognize the intrinsic value of children to their parents.” (Emphasis added.) 114 Ill. 2d at 120, 499 N.E.2d at 1379.

Whether to apply this presumption inversely, i.e., to include the lost society of an unborn child within the damages recoverable under the Act, is a question the Illinois Supreme Court has not thus far squarely addressed. Chrisafogeorgis v. Brandenburg (1973), 55 Ill. 2d 368, 304 N.E.2d 88, however, provides considerable guidance in the resolution of this issue. In that case the court recognized that the Act gives parents the right to maintain an action for damages for the negligently caused death of their viable, yet stillborn, child. The court stated that by its decision it was avoiding “a legal rule [that] would produce the absurd result that an unborn child who was badly injured by the tortious acts of another, but who was born alive could recover [Amann v. Faidy (1953), 415 Ill. 422, 114 N.E.2d 412 (overruling Allaire v. St. Luke’s Hospital (1900), 184 Ill. 359, 56 N.E. 638)] while an unborn child, who was more severely injured and died as a result of the tortious acts of another, could recover nothing.” (55 Ill. 2d at 375, 304 N.E.2d at 92.) Other courts have said that denial of recovery in cases similar to Chrisafogeorgis rewards the tortfeasor “for his severity in inflicting the injury.” (Eich v. Town of Gulf Shores (1974), 293 Ala. 95, 97, 300 So. 354, 355.) To be sure, it was because of the intolerably cruel disincentive fostered by the common law “that it was more profitable for the defendant to kill the plaintiff than to scratch him,” that Lord Campbell’s Act, the precursor of our Wrongful Death Act, was adopted in England. W. Prosser, Torts §127, at 902 (4th ed. 1971).

When in 1980 the General Assembly added section 2.2 to the Wrongful Death Act, it created a cause of action for the wrongful death of a fetus injured at any time after conception, thereby clearly establishing the status of the unborn child, for the purposes of the Act, as that of a “person,” and removing the barrier of viability to the parental right of action which the supreme court had recognized seven years earlier in Chrisafogeorgis. (Pub. Act 81 — 946, §1, eff. Jan. 1,1980.) Section 2.2 states in relevant part as follows:

“§2.2. The state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default.” (Ill. Rev. Stat. 1989, ch. 70, par. 2.2.)

Senator Rhoades introduced the bill with the following statement:

“This adds a cause of action under the Wrongful Death Act saying that the state of gestation of a human being when injury is caused or when it takes effect or at death shall not foreclose the maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default. Basically, there’s a lot of case law right now, which indicates that the representative of the unborn child at viability can now bring a cause of action for wrongful death. [E.g., Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, 304 N.E.2d 88; Maniates v. Grant Hospital (1973), 15 Ill. App. 3d 903, 305 N.E.2d 422.] There is even case law, which deals with preconception. [Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.] That is where the womb or blood supply or other injury has been caused to the mother prior to conception and then later an injury has been caused. But, ironically enough, there is no cause of action, at least, statutorily at the moment for any state of gestation, which may be prior to viability. This would close that particular gap in the law.” 81st Ill. Gen. Assem., Senate Proceedings, May 17, 1979, at 165.

Finally, in Jones v. Karraker (1983), 98 Ill. 2d 487, 457 N.E.2d 23, the supreme court, in reaffirming the estate’s right to recover damages on the parents’ behalf, recognized a presumption of pecuniary injuries for the wrongful death of a viable fetus. (Cf. Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237 (presumption allowed for wrongful death of two-week-old infant).) The only evidence before the jury in Jones on the question of damages was that the fetus was viable and that absent defendant’s negligence plaintiff would have given birth to a normal, healthy baby. However, in light of the pre-Bullard nature of the case, the court’s recognition of the presumption was necessarily for loss of services and support only (see Jones v. Karraker (1982), 109 Ill. App. 3d 363, 371, 440 N.E.2d 420, 425-26, aff’d (1983), 98 Ill. 2d 487, 457 N.E.2d 23); therefore, the issue of whether a presumption of pecuniary injury exists also for the loss of the unborn child’s society was not before it.

Defendant here, however, while acknowledging that parents may recover damages under the Act and that they are entitled to a presumption of pecuniary injury where they suffer a loss of their minor child’s society, citing Bullard, argues that “neither the supreme court in Chrisafogeorgis and Jones nor the General Assembly has ever delineated the bases for awarding damages for pecuniary loss in the wrongful death of a viable fetus.” Defendant further contends that “[w]hile recognizing that there is a pecuniary loss associated with that death, the supreme court has never stated nor implied that the parents of a stillborn fetus are entitled to damages for loss of society.” Defendant also challenges plaintiffs’ right to “maintain a cause of action under the Wrongful Death Act for the alleged loss of their stillborn child’s anticipated services and support.”

Yet, as plaintiffs correctly assert and as we have attempted to point out above, in 1973 when Chrisafogeorgis held that a stillborn child is a person for wrongful death purposes, and in 1980 when the General Assembly expressly stated in section 2.2 of the Act that the parents of a stillborn child’s right to recovery may not be defeated because of the child’s “state of gestation or development,” the supreme court in Hall and Knierim had already interpreted the term “pecuniary injuries” broadly enough to include not only support, but also companionship, guidance, love, advice and affection, elements which the court went on to define as loss of society in Elliott (92 Ill. 2d at 536, 442 N.E.2d at 166). Accordingly, it cannot be successfully contended that the legislature naturalized section 2.2 into the Wrongful Death Act merely as a sterile attempt at lawmaking, or that it in any way diminished the definition of “pecuniary injuries” or the damages available to the parents of a stillborn child. Rather, the legislature clearly placed those parents-in no less favorable a position than that accorded to the parents of a live-born child, for surely, the General Assembly must have been keenly aware of the interpretative accretions infused into the Act by the supreme court prior to the enactment of section 2.2. Moreover, defendant fails to apprehend that section 2.2, the function of which is to broaden the meaning of the word “person” in section 1, was grafted onto the Act as a constituent part of an organic law that provides “an action for damages” (emphasis added) (Ill. Rev. Stat. 1989, ch. 70, par. 1) and guarantees that “in every such action the jury may give such damages as they shall deem a fair and just compensation” (emphasis added) (Ill. Rev. Stat. 1989, ch. 70, par. 2).

Thus the Act weds a right to a remedy for recovering wrongful death damages. (Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352; see Note, Bullard v. Barnes — Parental Recovery for Lost Society and Companionship of a Minor Child Under the Illinois Wrongful Death Act, 34 De Paul L. Rev. 803, 810 & n.43 (1985) (hereinafter Note).) Any different interpretation would in effect nullify the General Assembly’s express intent to act upon the guarantee in our constitution that “[ejvery person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation.” (111. Const. 1970, art. I, §12.) In fact, it would appear that, insofar as there was any common law on the subject, plaintiffs’ right would be recognized under the general theory ubi jus, ibi remedium (where there is a right, there is a remedy) (Black’s Law Dictionary 1363 (5th ed. 1979)). See Amann v. Faidy, 415 Ill. at 430, 114 N.E.2d at 416, citing Damasiewicz v. Gorusch (1951), 197 Md. 417, 79 A.2d 550.

Furthermore, when the supreme court in Jones held that the parents of an unborn child were entitled to a presumption of substantial pecuniary injury, the court was surely aware that in Elliott it had ruled that “loss of the decedent’s society, [and] companionship” are compensable “pecuniary injuries.” (Elliott, 92 Ill. 2d at 539, 442 N.E.2d at 167-68.) And finally, in Bullard, in which the supreme court replaced the presumption of economic loss arising from the wrongful death of a minor child with a presumption of the loss of his society, the court cited with approval the case of Volk v. Baldazo (1982), 103 Idaho 570, 651 R2d 11, among the several other authorities it relied upon which hold that damages for loss of society are recoverable by the estate of even a stillborn child. Indeed, Volk, along with several other jurisdictions, explicitly recognizes a presumption of loss of society in a parents’ action for the wrongful death of an unborn child.

Defendant’s challenge to plaintiffs’ right to seek wrongful death damages rests primarily on Hunt v. Chettri (1987), 158 Ill. App. 3d 76, 510 N.E.2d 1324, appeal denied (1987), 116 Ill. 2d 555, 515 N.E.2d 108, wherein, as noted above, the fifth district appellate court held that the Wrongful Death Act does not permit parents of a stillborn child to recover damages for the loss of that child’s society. The Hunt court expressed concern that the presumption of lost society in such a case would be irrebuttable, because without a loss of existing society, defendants would be unable to prove that the unborn child was “estranged”; unless the child had already been born, no society could have been exchanged, and therefore, none lost. According to the court, “birth is a proper point at which to begin to measure the loss of a child’s society,” because “the initial bonding which takes place at birth cannot be dismissed so easily,” and it is the “length, intensity and quality” of the relationship between parent and child that determine the magnitude of the loss. (158 Ill. App. 3d at 79, 510 N.E.2d at 1326.) Finally, the court felt that allowing damages for the loss of a stillborn child’s society would confuse loss of society with recovery for the parents’ grief over the child’s death.

But in drawing the line for recovery at birth, the court in Hunt completely overlooks the fact that the supreme court rejected the requirement of “live delivery” as “logically indefensible” 14 years earlier and held instead that it considered “more realistically and reasonably that viability is the appropriate line of demarcation.” (Chrisafogeorgis, 55 Ill. 2d at 374, 304 N.E.2d at 92.) Indeed, in Villamil v. Elmhurst Memorial Hospital (1988), 175 Ill. App. 3d 668, 529 N.E.2d 1181, appeal denied (1989), 124 Ill. 2d 562, 535 N.E.2d 922, the court, in following Bullard, allowed the parents of a newborn child who suffered a fatal fall to the floor immediately after birth to rely on a presumption of lost society. Accordingly, we decline to follow Hunt’s rejection of the very essence of Chrisafogeorgis and the cases following it, or to join in its failure to give deference to the will of the legislature in providing parents with redress for the wrongful death of their unborn children as expressed in section 2.2 of the Wrongful Death Act, for where existing law imposes a duty, violations of which are compensable if they cause death even an instant after birth, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because death was caused in the womb. Moreover, whatever gloss one may want to put on the case law, we have not the organs with which to perceive that the passage of section 2.2 was but a legislative exercise in shoveling smoke.

The court’s statement in Hunt that there can be no society between a mother and a fetus could not have had any support in the record in that case, since it was decided purely on “whether the trial court erred in striking plaintiffs’ claim for the loss of society of Baby Hunt, a stillborn fetus.” (Hunt, 158 Ill. App. 3d at 77, 510 N.E.2d at 1325.) It cannot be gainsaid that a fetus is physically bound to its mother; and, as plaintiffs aptly state, “there is substantial scientific and medical evidence that the unborn child’s impact upon the mother is more than mere physical impact, and more than mere tissue-pressure; it is an exclusive communication beyond the ken of outsiders,” as to which plaintiffs were evidently prepared to introduce expert testimony. (See, e.g., R. Rubin, Maternal Identity and the Maternal Experience (1984); Wunsch, Parental Recovery for Loss of Society of the Unborn: The Plaintiffs Perspective, 77 Ill. B.J. 538, 541 (1989) (hereinafter Wunsch).) And although defendant argues that an expectant mother merely romanticizes about an idealized future relationship with her child rather than experiencing an existing society, we do not deem it to be unwarranted for parents to entertain a reasonable expectancy of anything but the felicitous society of the children they wish to bear and beget, for even if there were no existing societal bond between a mother and her unborn child at the time of injury or death, the Act by its very nature contemplates compensating parents for their future loss caused by defendant’s negligence or wrongful act. Contrary to Hunt, the parents’ right to recovery for loss of society does not depend upon whether there has been an exchange of society in the past. “The established rule is that if the wrongful death action is brought for a surviving spouse or lineal next of kin, the law presumes substantial pecuniary damages arising from the relationship alone, and it is immaterial whether they received pecuniary assistance from the deceased in the past.” (Prendergast v. Cox (1984), 128 Ill. App. 3d 84, 89, 470 N.E.2d 34, 37; Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 352, 525 N.E.2d 258, 264.) Rather, it depends upon whether but for defendant’s negligence society would have been exchanged. Other States, having wrongful death acts similar to ours, reach the same result: that there may have been no society in the past is irrelevant; it is the loss into the future which is compensable. See, e.g., Green v. Bittner (1980), 85 N.J. 1, 15-17, 424 A. 2d 210, 218.

Moreover, nowhere does the law require that parent and child consciously communicate or exchange society. Indeed, Bullard, in establishing a presumption of loss of society in wrongful death cases involving minors, holds that such loss can exist even when not affirmatively shown. Therefore, until we enter that 25th century nightmare utopia depicted-in Aldous Huxley’s Brave New World, when science and technology will have achieved such complete tyranny over mankind that human beings will be chemically produced and “conditioned” for life in bottles, and where, consequently, parents can have no expectation of bearing or begetting their own children or even seeing them after “birth,” we may confidently presume that the enjoyment of a child’s society is a reasonably expectable consequence of its prenatal development. Further, our supreme court on more than one occasion has found it necessary to remind tortfeasors who advance the argument made by defendant in the case sub judice that: “ ‘[I]t is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong has created.’ ” (Elliott, 92 Ill. 2d at 540-41, 442 N.E.2d at 168, quoting Smith v. Detroit (1972), 388 Mich. 637, 202 N.W.2d 300.) And in Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, 334-35, 178 N.E.2d 303, 307, the court recalled the words of the venerable Justice Cardozo that “ ‘[i]t would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.’ [Van Beech v. Sabine Towing Co. (1937), 300 U.S. 342, 350-51, 81 L. Ed. 685, 690, 57 S. Ct. 452, 456-57].”

The Hunt court was also concerned that it would be impossible to rebut the presumption of lost society in the case of a stillborn child. We fail to understand, however, why such a presumption would not be just as rebuttable as it is in the case of a child who is born alive but who is injured and dies immediately after birth, as in Villamil. Neither Hunt nor defendant here presents us with any concept of what the differences would be in the elements of a rebuttal as between the two cases other than the time of death. Here, again, it becomes necessary to invoke Chrisafogeorgis: “[I]n drawing dividing lines or borders for rights or disabilities, lines which unnecessarily produce incongruous and indefensible results should be avoided.” (Chrisafogeorgis, 55 Ill. 2d at 375, 304 N.E.2d at 92.) A presumption is “an inference which common sense draws from the known course of events.” (Bullard, 102 Ill. 2d at 517, 468 N.E.2d at 1234.) In Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237, the supreme court explained the difference between conclusive and rebuttable presumptions as follows:

“Conclusive presumptions cannot be contravened by opposing evidence [citation]; whereas rebuttable presumptions may be disputed and eliminated if they do not correspond with the circumstances actually proved. A rebuttable presumption, standing alone, may establish a prima facie case, thereby relieving the party in whose favor it arises from presenting further evidence and requiring the opposing party to produce contrary evidence to avoid an unfavorable verdict. However, such a presumption does not preclude the consideration of contrary facts. [Citations.]
Under those rules relating to presumptions, the presumption of pecuniary loss involved here would, in the absence of any evidence of such loss, establish a prima facie case for plaintiff, and merely shift to defendant the burden of establishing contrary facts which the jury would be obliged to weigh. Implicit in the right to weigh the presumption is the right to give it no weight at all.” (41 Ill. 2d at 239-40, 242 N.E.2d at 240.)

The Flynn court ultimately held that the issue of damages in a wrongful death case is wholly within the province of the jury and concluded that it was proper for the jury in that case to find liability for the wrongful death of a two-week-old child, but to award no damages in view of evidence that the child was suffering from incurable congenital physical defects which severely impaired her health. Flynn thus illustrates that a rebuttable presumption of pecuniary injuries does not necessarily guarantee recovery. It does, however, appropriately shift the burden of coming forward with proof that the damages are minimal or nonexistent onto the party who created the uncertainty surrounding the damages by causing the wrongful death.

The supreme court stated in Bullard that defendants may rebut the presumption of the loss of a minor child’s society “by presenting evidence that a parent and child were estranged.” (Bullard, 102 Ill. 2d at 517, 468 N.E.2d at 1234.) Defendant’s contentions and Hunt to the contrary notwithstanding, we do not interpret the court’s illustration as making evidence of “estrangement” the exclusive method of rebuttal. In fact, with respect to the loss of an unborn child’s society, we perceive numerous ways of rebutting the presumption. For example, defendant may present evidence that, irrespective of defendant’s negligence, “the child was unhealthy, or unlikely to live beyond minority” (Jones v. Karraker (1982), 109 Ill. App. 3d 363, 371, 440 N.E.2d 420, 426, aff’d (1983), 98 Ill. 2d 487, 457 N.E.2d 23; Flynn, 41 Ill. 2d 236, 242 N.E.2d 237); that the child was unlikely to live beyond birth; that the child would not have lived because the mother indented to obtain an abortion (see Light v. Proctor Community Hospital (1989)182 Ill. App. 3d 563, 538 N.E.2d 828 (plaintiff, who learned she was pregnant in the course of or after undergoing a thyroid scan and terminated the pregnancy, not allowed to maintain a cause of action on behalf of her unborn child under the Wrongful Death Act, alleging that defendants were negligent in failing to determine if she was pregnant prior to the scan procedure)); that prior to the child’s birth the parents decided to place the child for adoption; or that prior to the child’s birth the parent claiming injury abandoned the family (see Gabriel v. Illinois Farmers Insurance Co. (1988), 171 Ill. App. 3d 663, 525 N.E.2d 864 (parent abandoned the child at a young age and was therefore estranged)). Nor should we lose sight of the fact that it is still traditional in our law that after hearing any contrary evidence and weighing the facts, the trier of fact bears the ultimate responsibility of deciding whether to award damages.

Relying on Hunt, defendant also maintains that a jury would too easily confuse damages for pure loss of society with damages resulting from prejudice, sympathy or passion for the bereaved parents, which are impermissible bases for civil recovery in Illinois, especially in a wrongful death action. (See also Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 460 N.E.2d 464.) However, Illinois courts have long considered that the loss of future society and companionship is sufficiently distinct from the mental anguish associated with bereavement to permit the issue of loss of society damages to go to the jury with proper instructions. (Bullard, 102 Ill. 2d at 514-15, 468 N.E.2d at 1233 (death of a minor child); Elliott, 92 Ill. 2d at 539, 442 N.E.2d at 167 (death of spouse); Major, 18 Ill. at 359-60 (death of minor child).) We are satisfied that this practice retains today all of the vigor with which it was endowed 133 years ago in Major, even in the case of a stillborn child. While loss of services and support, and not loss of society, was the issue in Major, the supreme court nevertheless approved the instruction given by the trial court that “[t]he mental sufferings or grief of survivors *** are not proper elements in the calculation of damages.” Major, 18 Ill. at 354, 359-60.

Departing from the issues decided in Hunt, defendant contends that damages for the loss of a stillborn fetus’ society are unduly speculative as a matter of law and that a jury charged with calculating an award essentially holds a blank check, making the damages potentially punitive in nature. As we have noted above in our discussion of certain of the other arguments made by defendant, “[wjhatever could be said in this regard against the claim of an unborn child could be said as well against the claim of a two-month-old child.” (Dunn v. Rose Way, Inc. (Iowa 1983), 333 N.W.2d 830, 833.) While it is true that punitive damages are not recoverable under the Wrongful Death Act (Howe v. Clarke Equipment Co. (1982), 104 Ill. App. 3d 45, 432 N.E.2d 621), our supreme court has held in the case of a bereaved spouse, that damages for the loss of society and companionship “may not be the most tangible items, but a jury is capable of putting monetary worth on them.” (Elliott, 92 Ill. 2d at 540, 442 N.E.2d at 168.) Moreover, in both Chrisafogeorgis and Jones the court concluded that the difficulty of ascertaining damages resulting from the death of an unborn child should not bar the right of action. (Jones, 98 Ill. 2d at 496-97, 457 N.E.2d at 25; Chrisafogeorgis, 55 Ill. 2d at 371-72, 304 N.E.2d at 90; see Jones, 98 Ill. 2d at 502, 457 N.E.2d at 30 (Simon, J., dissenting); see also Major, 18 111. at 359-60.) The supreme court has noted that “[i]t is unquestioned that there can be a recovery for the wrongful death of a child who lives but a moment after birth”; and it has further observed that assessing the extent of the parents’ loss in such a case is neither different nor more difficult than determining damages in the case of a child who does not survive birth. {Chrisafogeorgis, 55 Ill. 2d at 372, 304 N.E.2d at 90.) Significantly, the court in Jones deferred to legislative prerogative in refusing to put a maximum limit of $20,000 on damages recoverable for the wrongful death of a viable fetus. {Jones, 98 111. 2d at 491-92, 457 N.E.2d at 25.) It is not surprising that the legislature has declined the invitation, for by 1967 it had removed all existing limits for recovery from the Act. (1967 111. Laws 3227; see Note, 34 De Paul L. Rev. at 810 n.42.) We therefore decline to subscribe to what seems to be defendant’s theory, that simply because it has caused the measurement of damages for loss of Christopher’s society to be more difficult to prove by causing his death prior to birth, his parents should be deprived of those damages.

Thus, given the legislature’s clear concern for the parents of stillborn children and “the trend in our more recent decisions under the Wrongful Death Act *** to expand the scope of pecuniary injury to encompass nonmonetary losses” (Bullard, 102 Ill. 2d at 514, 468 N.E.2d at 1232), we are led ineluctably to the conclusion that damages for the loss of a stillborn child’s society are not only an element of pecuniary loss recoverable in an action brought under the Act, but that the parents are also entitled to a presumption thereof. We also hold that although plaintiffs allege in their complaint that Yolanda was being treated for a full-term pregnancy when the negligent acts occurred, pursuant to section 2.2 of the Act, plaintiffs are not obligated to establish viability at trial.

Finally, plaintiffs seek the right to prove the loss of Christopher’s services and support. As we have noted earlier, the supreme court removed the presumption of the loss of a minor child’s services and support because the court felt that it no longer comports with the realities of modern society. (Bullard, 102 Ill. 2d 505, 468 N.E.2d 1228.) But the court went on to state that recovery may still be had “in the rare case where the child earned income that was used to support the family,” provided these facts are established at trial. (Bullard, 102 Ill. 2d at 517, 468 N.E.2d at 1234.) Here again, we do not read this language as precluding other means of proof. The limitation in Bullard clearly pertains to the presumption of substantial loss, not whether the damages for loss of services and support can be recovered if proved. (Schmall, 171 Ill. App. 3d 344, 525 N.E.2d 258.) Nor can the present case be satisfactorily distinguished from that of a child who expires but a few heartbeats after birth and whose parents consequently have a right under Bullard to prove their economic loss, for the damages to which plaintiffs are entitled for loss of Christopher’s services and support are the economic and financial contribution he could have been expected to make had he lived.

In this connection, although what we are about to say applies with equal force as responses to the preceding arguments made by defendant herein, it is worthy of note that, in promulgating the Act more than V-k centuries ago, when the study of grammar was practiced more rigorously and was rendered more homage than we accord it today, the legislature carefully and expressly framed the phrase at issue here in the subjunctive mood: “if death had not ensued.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 70, par. 1.) The term “subjunctive” is defined in the American Heritage Dictionary of the English Language (1969) as “[designating a verb form or set of forms used in English to express a contingent or hypothetical action; compare indicative”; and “indicative” is defined in the same source as “[pjertaining to or designating a verb mood used to indicate that the denoted act or condition is an ‘objective fact.’ ” (Emphasis added.) (See also Webster’s Third New International Dictionary 1150, 2276 (1981).) Therefore, even without a presumption, having alleged pecuniary losses, plaintiffs should be given the opportunity to prove such damages as they may be entitled to “if death had not ensued.” (See Schmall, 171 Ill. App. 3d 344, 525 N.E.2d 258.) At the very least, defendant ought not be heard to complain about the difficulties of the parents’ proof, for it is their burden, and not the defendant’s, to establish the existence and extent of their damages. Besides, this case is before this court, as it was before the trial court, on a motion which concedes the well-pleaded fact of damages.

In any event, the supreme court, in establishing the status of the stillborn Chiisafogeorgis child as a person under the Act, reaffirmed what it had asserted in Amann:

We are not impressed with the reasoning that a clear remedy for an injustice should be denied because a wrong is not readily susceptible of proof.’ [Citation.] *** ‘[T]he right to bring an action is clearly distinguishable from the ability to prove the facts. The first cannot be denied because the second may not exist.’ ” (Chrisafogeorgis, 55 Ill. 2d at 371-72, 304 N.E.2d at 90, quoting Amann v. Faiady (1953), 415 Ill. 422, 431.)

We need also to be reminded that here, of course, we are considering the issue of the right to bring an action, not the evidence in support of the complaint. We therefore hold that the argument grounded on claimed difficulties in showing loss of services or support does not require the denial of a right of action, there appearing to be no reason why the amount of pecuniary loss in the case of a stillborn child cannot be determined on the basis of factors similar to those our courts consider when an infant is the victim of a wrongful death. (See Kruger, Wrongful Death of the Unborn, 13 J. Fam. L. 99, 106-07 (1973-74) (hereinafter Kruger).) Such factors include the “child’s age, sex, ambition, physical and mental characteristics, parents’ social and economic status, and employment of other children in the family.” (Kruger, 13 J. Fam. L. at 106; see also C. McCormick, Handbook on the Law of Damages §101 (1935).) As Kruger notes:

“While not all these factors are present in a stillborn child, it would appear that enough factors are present to enable a jury to calculate the pecuniary value of his life to his parents with little more speculation than is used in calculating the pecuniary loss of an infant child.” (Kruger, 13 J. Fam. L. at 106-07.)

For example, in Pehrson v. Kistner (1974), 301 Minn. 299, 222 N.W.2d 334, under a statute limiting recovery to pecuniary loss, there was testimony that the unborn child would have been expected to assist her family in the operation of their dairy farm as well as other testimony as to the value of her services. The evidence showed also that in the absence of family assistance, outside help would have to be hired in order to operate the farm. In sum, the problems attendant upon the measure of damages recoverable for wrongful death afford no apparent basis for denying the damages recoverable for the wrongful death of an unborn child as compared to the recovery allowed for the wrongful death of a minor child.

In concluding, it is important to keep in mind that in enacting the Wrongful Death Act the legislature explicitly recognized the legal right of survivors to be compensated for their loss resulting from the victim’s death. Insofar as that compensation is concerned, there may be a quantitative but not a qualitative difference between the damages caused by the death of a newborn and that of a viable fetus; the damages reflect the same right of the parents — to recover the loss due to the death of their child.

Accordingly, we reverse the holdings of the circuit court and remand the cause for trial.

Reversed and remanded.

HARTMAN and BILANDIC, JJ., concur.