author: JUSTICE DiVITO

text:
    THE BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT No. 155, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    First District (2nd Division)
    No. 1—91—1144
    Opinion filed May 18, 1993.

      Vedder, Price, Kaufman & Kammholz, of Chicago (John A. Relias and C. Elizabeth Belmont, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Gregory J. Malovance and Gregory S. Folley, both of Winston & Strawn, and Felicitas Berlanga, of Illinois Education Association-NEA, both of Chicago, for other respondent.
   JUSTICE DiVITO

delivered the opinion of the court:

Petitioner Board of Education of Community High School District No. 155 (the District) filed a charge with respondent Illinois Educational Labor Relations Board (IELRB), alleging that respondent Community High School District No. 155 Education Association, IEA-NEA (the Union), had committed an unfair labor practice by demanding to arbitrate an inarbitrable employee grievance. The Union countered with its own unfair labor practice charge that the District could not refuse to arbitrate an arbitrable grievance. The IELRB resolved the matter in favor of the Union, but this court reversed the IELRB ruling without reaching the merits. Meanwhile, however, the arbitrator had determined that the grievance was arbitrable, and the arbitration was held over the District’s objection. The arbitrator found that the District had improperly evaluated the employee and awarded him damages. The District then refused to comply with the award, so the Union filed another unfair labor practice charge. The IELRB again ruled in the Union’s favor, and the District again appealed. We affirm.

The employee was an untenured guidance counselor at a high school during the 1986-87 and 1987-88 school years. He received no evaluation at all for 1986-87, and his evaluation for 1987-88 allegedly did not conform with the procedures outlined in the parties’ collective bargaining agreement (the Agreement). The employee was informed in March 1988 that on the basis of his evaluation results, his employment contract would not be renewed for the following year, thereby denying him tenure.

One week later, the Union asked the District to agree “to submit the issue of evaluation as determining the employment status of [the employee] for 1988-89 to binding arbitration as contained in the grievance procedure.” The District rebuffed the Union’s request in April 1988, asserting that the grievance was not arbitrable. When the Union filed a formal arbitration demand in May 1988, the District stood its ground.

Months passed. On November 30, 1988, the District filed a charge with the IELRB alleging that the Union’s persistence in its demand for arbitration of the inarbitrable grievance violated section 14(b)(3) of the Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1714(b)(3)) (the Act). Nine days later, the Union filed its own charge. It claimed that the District’s refusal to arbitrate the grievance violated section 14(a)(1) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(1)). The IELRB issued complaints against both parties and consolidated the cases. It concluded that the District had violated the Act because the grievance was arbitrable; it also found that the Union’s charge was timely. (Community High School District No. 155, 5 Pub. Employee Rep. (Ill.) par. 1185, Nos. 89 — CA — 0021—C, 89 — CB — 0009—C (Illinois Educational Labor Relations Board November 8, 1989).) The District appealed on a number of grounds, but it did not challenge the IELRB’s finding of arbitrability. On March 26, 1991, this court reversed, finding that the Union’s charge had been untimely filed. Board of Education of Community High School District No. 155 v. Illinois Educational Labor Relations Board (1st Dist. 1991), No. 1 — 89 — 3304 (unpublished order under Supreme Court Rule 23) (No. 1551).

Meanwhile, prior to the IELRB ruling, the arbitrator separately determined that the matter was arbitrable and ordered arbitration on the merits. Over the District’s objection, the arbitration took place over two days in June 1989. Approximately five months later, just after the IELRB order in No. 155 I, the arbitrator issued his opinion and award on the merits of the grievance, finding that the District had committed multiple and “flagrant” violations of the Agreement’s procedures in evaluating the employee. Having decided that the District had sole discretion over contract renewals for nontenured employees, however, he concluded that he had no power to order reinstatement. He therefore directed the District to compensate the employee “with salary in the amount of one (1) full year paid at the 1988-89 level of pay without any offsetting deductions,” plus benefits, “to remedy the damage to [the employee’s] professional integrity and standing which resulted from the Board’s action.”

The District refused to comply with the award, so the Union filed another unfair labor practice charge against the District, this time for violation of sections 14(a)(1), 14(a)(5) and 14(a)(8) of the Act (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(1), (a)(5)¡ (a)(8)). The IELRB determined that the arbitrator had acted properly in conducting the arbitration prior to an IELRB decision on arbitrability. It then found that the IELRB hearing officer had applied the proper standard for analyzing the award; that the award did not conflict with section 24—11 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24—11); and that the arbitrator was not limited to a make-whole remedy but even if he were, the award was proper because it was compensatory, not punitive. The IELRB declined to revisit the question of substantive arbitrability, stating that it had already resolved the issue and suggesting that reconsideration might be improper, though it also remarked that it had been given no reason warranting reconsideration. It concluded that the award was binding and thus that the District, by refusing to comply with it, had violated section 14(a)(8) and, derivatively, section 14(a)(1) of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(8), (a)(1)). This appeal followed.

I

We first address three preliminary matters, two of which concern the effect of No. 155 I on this appeal: whether the doctrine of res judicata bars the District from asking this court to review the IELRB’s earlier decision on the substantive arbitrability of the grievance, and whether as a result of the reversal, the arbitrator had no jurisdiction over the grievance, rendering the award here to no effect. A related issue is whether the IELRB had the power to reconsider its prior determination that the grievance was arbitrable. Given our analysis, we need not rule on the last question.

A

The Union and the IELRB contend that under the doctrine of res judicata, the District may not relitigate the issue of arbitrability. Citing Staunton Community Unit School District No. 6 v. Illinois Educational Labor Relations Board (1990), 200 Ill. App. 3d 370, 558 N.E.2d 751, the District replies that the earlier proceedings did not fix the rights and liabilities of the parties as to arbitrability because the IELRB made only an “initial” determination of arbitrability, allowing the District to raise the arbitrability issue again before the arbitrator.

The res judicata doctrine comprises two components. One bars “relitigation of a single cause of action between two parties [or their privies], extending to both causes actually litigated and those which might have been” (estoppel by judgment or res judicata); the other prohibits “relitigation of particular issues decided in another action between the same parties on a different cause of action” (collateral estoppel, estoppel by verdict, or issue preclusion). (Cirro Wrecking Co. v. Roppolo (1992), 153 Ill. 2d 6, 19-20, 605 N.E.2d 544, 552.) This doctrine applies even when, as here, the prior litigation occurs in administrative proceedings that are adjudicatory, judicial, or quasi-judicial in nature. McCulla v. Industrial Comm’n (1992), 232 Ill. App. 3d 517, 520, 597 N.E.2d 875, 878.

In No. 155 I and here, the parties are identical. In the prior appeal, the cause of action was an unfair labor practice charge for the District’s refusal to arbitrate an arbitrable matter; in the case before us, the cause of action is an unfair labor charge for the District’s refusal to comply with a binding arbitration award, to which the District has raised the defense of inarbitrability. In both cases, then, arbitrability was at issue and the District could have prevailed if the grievance was inarbitrable, so the causes of action are identical for res judicata purposes. (Osborne v. Kelly (1991), 207 Ill. App. 3d 488, 491, 565 N.E.2d 1340, 1342 (test is “whether the causes of action are based on common core of operative facts and whether the evidence necessary to sustain the second [outcome] would have sustained the first”).) In the earlier case, however, the issue of arbitrability was actually litigated before the IELRB, which determined that the grievance was arbitrable. The District did not challenge the IELRB’s ruling on this issue in its earlier appeal. By neglecting to do so, the District accepted that ruling as final, thereby extinguishing any right to challenge it here. Our ruling does not conflict with Staunton because in that case, unlike this one, there was no prior appeal of an unfair labor practice charge, so the doctrine of res judicata did not come into play.

Even if the District had preserved the issue of arbitrability for this court’s review, we find disingenuous the District’s argument that the substance of the grievance was limited to the employee’s termination and reinstatement. The District itself submitted as an arbitration issue “whether the evaluation of [the employee]’s performance conformed with the evaluation procedures.” Thus, the District itself placed the issue of its violation of the evaluation procedures before the arbitrator. Furthermore, the arbitrator reached the question of reinstatement as a remedy only after he resolved that question. Therefore, the nonrenewal was not the substance of the grievance. For the same reason, we find unavailing the District’s arguments that as a termination decision, the grievance was inarbitrable under the management rights provision in article X.A of the Agreement, in which the Union and the District agreed that the right to discharge personnel lies exclusively with the District, or under the School Code’s provisions for nontenured employees.

B

The District also argues that Board of Trustees, Prairie State College v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 395, 527 N.E.2d 538, stands for the proposition that the IELRB has no power to order a school board to submit to arbitration prior to deciding that an unfair labor practice has occurred. It extends Prairie State’s reasoning to mean that this court’s earlier reversal of the IELRB’s November 1989 order deprived the IELRB of any power to order arbitration, so the arbitrator here had no jurisdiction. Without such jurisdiction, the District reasons, the arbitrator had no power to render a binding award.

Without question, the IELRB generally has no power to order parties to halt unfair labor practices, including the power to order them to arbitrate, prior to finding that an unfair labor practice has occurred. (Ill. Rev. Stat. 1991, ch. 48, par. 1715; Prairie State, 173 Ill. App. 3d at 410, 527 N.E.2d at 548.) By extension, reversal of the IELRB’s earlier order here negated its power to order arbitration, which would nullify any resultant arbitration award. Had the arbitration proceeding here occurred pursuant to an IELRB order to arbitrate, we agree that the result of the reversal would be that the District could refuse with impunity to comply with the award. The same would hold true if this court had reversed the earlier IELRB order on the ground of inarbitrability.

As it happens, however, neither event occurred. Instead, the arbitration took place in June 1989, almost five months prior to the IELRB’s original order, and this court reversed on technical grounds unrelated to the IELRB’s arbitrability ruling, which, as noted above, this court was not asked to review. Because the District elected to participate in the proceeding prior to the IELRB decision, the District submitted to the arbitrator’s power to render a binding award, subject of course to the arbitrability challenge, if preserved, and to any other objection it might have on the merits of the award. As a result, this court’s reversal of the earlier unfair labor practice charge had no effect on the jurisdiction of the arbitrator, which was not dependent on the IELRB’s order in No. 155 I.

II

• The District couches much of its argument in objections to the award itself, but the issue before this court is somewhat different: whether the IELRB correctly found that the District committed the unfair labor practice of refusing to comply with a binding arbitration award. On direct review of an administrative ruling such as this one, we are guided by Supreme Court Rule 335(h) (134 Ill. 2d R. 335(h)), which states that certain sections of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3—101 et seq.) apply here. In particular, section 3—110 defines our standard of review as follows:

“The hearing and determination [on review of any final administrative decision] shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1991, ch. 110, par. 3—110.

Under this statute, a reviewing court will defer to the IELRB’s factual conclusions, reversing only if the agency’s decision was against the manifest weight of the evidence, that is, only if no rational trier of fact could have reached the challenged conclusion, looking at the evidence in the light most favorable to the agency. (American Federation of State, County & Municipal Employees v. Illinois Educational Labor Relations Board (1990), 197 Ill. App. 3d 521, 525, 554 N.E.2d 476, 478.) If the question raised is purely legal, such as statutory construction, review is de novo, but courts will defer to an agency’s construction of the statutes it administers unless the agency’s interpretation is unreasonable or erroneous. Press v. Code Enforcement Board of Appeals (1992), 149 Ill. 2d 281, 285, 595 N.E.2d 1068, 1070.

That the administrative decision at issue is a ruling on the validity of the arbitrator’s award complicates our review, for “a court’s review of an arbitrator’s award is extremely limited,” and “a court must construe an award, if possible, as valid.” (American Federation of State, County & Municipal Employees v. State (1988), 124 Ill. 2d 246, 254, 529 N.E.2d 534, 537.) This standard applies to the IELRB as well as to the courts. (Board of Education of Danville Community Consolidated School District No. 118 v. Illinois Educational Labor Relations Board (1988), 175 Ill. App. 3d 347, 353, 529 N.E.2d 1110, 1114 (“Neither IELRB nor reviewing courts have substantial authority to pass upon the propriety of the arbitrator’s decision ***”), appeal denied (1989), 124 Ill. 2d 553, 535 N.E.2d 912.) When determining whether a party has violated the Act by refusing to comply with a binding arbitration award, the inquiry has three components: whether the award was binding; the content of the award; and whether the party has complied with the award. (Danville, 175 Ill. App. 3d at 349-50, 529 N.E.2d at 1112.) The parties agree that only the first is at issue here.

Very few grounds exist for finding that a labor arbitration award is not binding. Such an award must be upheld so long as “the arbitrator acts within the confines of his jurisdiction, and his award draws its essence from the parties’ collective-bargaining agreement, even when a reviewing court disagrees with the arbitrator’s judgment on the merits.” (AFSCME, 124 Ill. 2d at 254-55, 529 N.E.2d at 537-38, citing United States Postal Service v. National Association of Letter Carriers (D.C. Cir. 1987), 810 F.2d 1239, 1241.) In deciding whether an award draws its essence from the agreement, a court determines whether the arbitrator limited himself to interpreting the collective bargaining agreement; if not, the award violated the agreement to arbitrate. (Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc. (7th Cir. 1991), 935 F.2d 1501, 1505.) Among other grounds for vacatur of a labor arbitration award are that the award requires violation of the law, or that it contravenes a paramount consideration of public policy, as defined by the constitution, statutes, or if neither exists, judicial decisions. AFSCME, 124 Ill. 2d at 260, 263, 529 N.E.2d at 540, 541.

The District claims that the award does not draw its essence from the Agreement, because under article XI.F, an arbitrator may not decide issues other than those submitted in writing and here the arbitration demand asked only for reinstatement and back pay, limiting the arbitrator to that remedy alone. Even if the arbitrator could consider another remedy, the District continues, nothing in the Agreement permits an award such as this one, which was not make-whole contract damages but rather tort damages, and punitive ones at that. As such, the District argues, the award contravenes public policy in that punitive damages, generally disfavored, are even more inappropriate in labor relations, particularly against government employers. The District also contends that the award conflicts with statutory provisions concerning tenure-related rights, in violation of the Act.

A

Although it is true, as the District contends, that the initial demand for arbitration sought only reinstatement and back pay, article XI.F of the Agreement instructs us that to determine what issues were within the arbitrator’s province, we look only to the Agreement and the written questions submitted to him, not to other documents such as the arbitration demand. The parties here were unable to stipulate to the issues the arbitrator was to decide, but their written queries as to remedy were similar in breadth: the District asked the arbitrator to decide whether the employee was entitled to “any remedy,” and the Union asked him to decide “what is the appropriate remedy.” The open-ended wording in these two submissions indicates no intention by either the District or the Union to confine the arbitrator to an award of reinstatement and back pay or nothing. Instead, from the broad wording of both parties’ written submissions to the arbitrator, it is plain that the arbitrator had been given virtual carte blanche to fashion a suitable remedy. Moreover, the Agreement contains no provision limiting the remedial scope of the arbitrator.

To limit the arbitrator to a single remedy would be antithetical to the oft-acknowledged need for flexibility in fashioning arbitration remedies for violations of collective bargaining agreements. As the United States Supreme Court has held:

“ ‘When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (Emphasis added.) United, Steelworkers v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct. 1353, 1361, quoted with approval in AFSCME, 124 Ill. 2d at 254-55, 529 N.E.2d at 537-38.

See also United Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 41, 98 L. Ed. 2d 286, 301,108 S. Ct. 364, 372.

It is plain that the arbitrator here would have awarded reinstatement and back pay to the employee had he thought it was within his power, but he was dissuaded from doing so by the District. When the arbitrator here interpreted the collective bargaining agreement and applicable statutes to bar him from awarding the most fitting remedy for a breach of a collective bargaining agreement, a circumstance not anticipated in the Agreement here, and fashioned a monetary substitute, he was merely exercising flexibility rather than “dispensing his own brand of industrial justice.” Thus, this award, for other than reinstatement and back pay, does not run counter to the essence of the Agreement. Consequently, the IELRB correctly held that the arbitrator’s remedial power was not limited to an award of reinstatement and back pay.

B

The District contends that even if reinstatement and back pay were not the only available remedy, surely the IELRB erred in ruling that the arbitrator had the authority to issue the award here, which the District characterizes as at best more than make-whole contract damages and at worst punitive damages in tort.

Although usually only contract remedies are available in civil actions for breaches of contract, noneconomic damages may be had if a breach of contract constitutes an independent tort as well. (Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 98, 492 N.E.2d 181, 184.) In the employment context, for example, an employee covered by a collective bargaining agreement who claims that his discharge was both a breach of the agreement and retaliation for filing a worker’s compensation claim is not limited to contract remedies; he also can bring, without exhausting the arbitration process, a tort action in the circuit court for which punitive damages may be recovered. (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280.) Had the employee here filed a civil suit against the District, however, the court could not have awarded punitive damages because the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 2 — 102) bars punitive damages in tort actions against the government. (Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill. 2d 545, 554, 499 N.E.2d 435, 439 (retaliatory discharge of government employee covered by collective bargaining agreement).) Because public policy, as expressed in the Tort Immunity Act, would preclude an award of punitive damages in a civil suit arising from this breach of the Agreement, it follows that punitive damages would have been unavailable to the arbitrator here.

This award, however, was not punitive. We begin with the plain wording of the award, in which the arbitrator stated that “the Grievant is entitled to a monetary award to remedy the damage done to his professional integrity and standing which resulted from the [District]^ action” and then “directed] the [District] to compensate the Grievant.” (Emphasis added.) From this language, it is readily apparent that the arbitrator’s focus was on remedy and compensation, not on punishment.

In addition, we note that the purpose of contract damages is to compensate a nonbreaching party by returning him to the position he had prior to the breach. Here, before the improper evaluation and resultant termination, the employee had a conveniently located workplace and had been there for two years, making him eligible for tenure with its concomitant employment security. After the evaluation, however, he was obliged to take another position, for a lower salary and fewer benefits, with an inconveniently located school. This caused him to incur additional transportation and child care costs, and he no longer had the prospect of a tenure decision in the near future. Furthermore, given the stigma that invariably accompanies termination, no matter how wrongful, the employee’s professional reputation surely was sullied.

The remedy most likely to place the employee back in his prebreach position was reinstatement and back pay, but the arbitrator determined that this remedy was not available. Instead, the arbitrator awarded the employee a sum of money, which was not only for the economic damages that the employee had suffered, in the form of lost wages and benefits plus increases in travel and child care costs, but also for the loss of the opportunity for tenure and concomitant employment security and for the financial losses that he likely would suffer in the future. Even if there were no direct evidence of immediate, direct injury to the employee’s reputation, we cannot say with assurance that the award was anything more than compensation for the economic injuries the arbitrator determined the employee had suffered and would continue to suffer in the future as a result of the District’s breach. Accordingly, keeping in mind that a court must construe an arbitration award as valid, if possible, we hold that the IELRB correctly determined that the arbitrator’s award was not punitive.

C

The District also claims that the award is not binding because, contrary to the IELRB’s finding, the award was a grant of “tenure-related employment rights in the nature of salary and employment benefits” under section 24 — 11 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24—11). We find nothing in this statute, which concerns the method by which a probationary employee is tenured or dismissed, that would cause us to view the monetary award here a “tenure-related employment right.”

Ill

The tortuous (and torturous) path of this case belies the notion that arbitration of labor disputes is a simple, informal, inexpensive, and expeditious method of resolving labor disputes. The evaluation at issue took place in 1988. The arbitration occurred in 1989. The IELRB order subjudice was issued in 1990. It is now 1993.

Here, the District should have either refused to arbitrate or gone forward with the arbitration on its merits while reserving its right to contest arbitrability and then refused to comply with the award on arbitrability and the other grounds it now raises. Although the latter course might have resulted in the arbitration of an inarbitrable dispute, “[t]his method of review is not uncommon in labor law and conforms [to] the Act’s stated goal of minimizing disputes and encouraging arbitration,” (Prairie State, 173 Ill. App. 3d at 407, 527 N.E.2d at 546.) In addition, the District would have had to defend against only one, not two, unfair labor practice charges, and both the IELRB and this court would have reviewed this case only once and as a whole. Instead, the result here has been almost five years of piecemeal litigation. Worse yet, this case is not unique. Board of Education of Du Page High School District No. 88 v. Illinois Educational Labor Relations Board (1st Dist. April 27, 1993), No. 1—91—1144, modified on denial of rehearing

The goals of the Act are not served when a party refuses to arbitrate, asks the IELRB to examine the question, appeals the IELRB’s decision, arbitrates on the merits, refuses to comply with the award, asks the IELRB to declare the award not binding, and appeals that decision as well. We urge the legislature and the IELRB to establish a regime more in harmony with the Act’s stated goal of prompt, fair, and final resolution of labor disputes.

For the reasons given above, we hold that the award was binding, and we therefore affirm the IELRB’s order that the District committed an unfair labor practice by refusing to comply with it.

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.

       Unless dismissed according to statutory procedures, a teacher who has been employed for two consecutive school terms “shall enter upon contractual continued service.” Ill. Rev. Stat. 1991, ch. 122, par. 24—11.

       We emphasize that had the District presented the issue of arbitrability to this court in No. 155 I, it would have preserved the right to present the question for our consideration here, given that our earlier reversal was based solely on the untimeliness of the charge. Were it otherwise, this court would have deprived the District of its right to judicial review of the IELRB’s earlier ruling on substantive arbitrability merely because it ordered reversal on another, technical ground.

         As the Prairie State court observed, however, the IELRB may exercise its statutory right to defer ruling on the substantive arbitrability of a grievance until after the arbitration has occurred. See Ill. Rev. Stat. 1991, ch. 48, par. 1714(a)(5).

       Given our analysis, we do not reach the more general question whether punitive damages would be available in labor arbitration with a nongovernmental employer. Just prior to oral argument of this case, Edward, Electric Co. v. Automation, Inc. (1992), 229 Ill. App. 3d 89, 593 N.E.2d 833, was issued, in which the court held in a case of first impression in Illinois that punitive damages were not available in commercial arbitration absent a specific provision to the contrary in the parties’ arbitration agreement. Whether the Edward Electric rule should apply in labor arbitration requires balancing the public policy favoring labor arbitration as a method of resolving collective bargaining agreement disputes fully and finally against the effect of a civil tort claim on the on-going relationship between employers and employees if a contract violation also forms the basis for a civil suit. Although “the award of punitive damages in the midst of a steady stream of arbitrations between a company and its unions might well undercut both sides’ confidence in the arbitration process and decrease their commitment to this essential aspect of ‘industrial self-government’ ” (Raytheon Co. v. Automated Business Systems, Inc. (1st Cir. 1989), 882 F.2d 6, 10, quoting United Steelworkers v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 580, 4 L. Ed. 2d 1409, 1416, 80 S. Ct. 1347, 1351 (upholding punitive damages in commercial arbitration while distinguishing contrary decisions in labor arbitration)), we envision similar dangers from requiring employees to file separate tort actions in such cases. We observe that just as there may be a difference between commercial and labor arbitrations on this point, a matter we do not decide, so too may there be a difference between labor arbitration awards in the public and private sectors. Hodges, The Steelworkers Trilogy in the Public Sector, 66 Chi.-Kent L. Rev. 631 (1990).


source: Caselaw Access Project

author: JUSTICE COUSINS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK W. LEWALLEN, Defendant-Appellant.
    First District (5th Division)
    No. 1—92—1029
    Opinion filed May 21, 1993.

      Massucci, Blomquist & Brown, of Chicago (Ernest R. Blomquist III, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Cory J. Pollack, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COUSINS

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Cook County denying his petition to rescind the statutory summary suspension of his driving privileges. He maintains that because the arresting officer did not physically issue him a citation for driving under the influence (DUI) before requesting that he submit to a chemical test to determine intoxication, the court’s order should be reversed and an order of rescission entered.

At issue is that section of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 1—100 et seq.) (Code) which provides in pertinent part:

“(a) Any person who drives *** a motor vehicle upon the public highways of this State shall be deemed to have given consent, *** to a chemical test *** of *** breath, *** for the purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11 — 501 or a similar provision of a local ordinance.” Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1(a).
We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The record in this case shows that about 3:27 a.m. on January 4, 1992, Niles police officer Elenz observed defendant weaving over two lanes of traffic as he drove south on Milwaukee Avenue at Dempster. The officer also clocked defendant’s rate of speed at 15 miles over the posted limit, and when he stopped him, the officer smelled a strong odor of alcohol on defendant, who fell out of his truck. The record further shows that defendant was issued four traffic citations in connection with this incident, including one for driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501(a)(2)), and defendant refused to submit to the breathalyzer test requested by the police officer. As a result of this refusal, defendant’s driving privileges were subject to summary suspension pursuant to section 11—501.1 of the Code. Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1.

When defendant received notice of his suspension, he filed a motion to rescind. At the hearing which was held on February 13, 1992, defendant acknowledged his arrest for DUI and his refusal to take the test, but he maintained that he did not receive any citations until he was released from jail. Officer Elenz testified that prior to requesting that defendant submit to the breathalyzer test, he told defendant that he was under arrest for driving under the influence of alcohol, issued him a ticket to that effect, and advised him of the relevant statutory provisions regarding his taking or refusing the breathalyzer test.

Attorney Michael Skoubis testified that he went to the Niles police station and filed the necessary paperwork to bail defendant out of jail. In addition to the bond slip, the desk officer handed him four traffic citations, which he tore apart. Skoubis gave copies of these documents to defendant and read the charges to him.

Officer Elenz then testified for the State that he asked defendant to submit to the breath test after he placed him under arrest and gave him a copy of the traffic citations. Under cross-examination by defense counsel, Elenz stated that defendant asked him the nature of the charges against him, and Elenz informed defendant of the DUI charge along with the others. Elenz also explained that defendant was held in the lockup, where prisoners are not allowed to have any property, and suggested that the citations may have been placed back in their original sequence so that they could be given to defendant upon release.

At the close of evidence defense counsel argued that under the recent decision of the Third District of the Illinois Appellate Court in People v. Mannon (1991), 217 Ill. App. 3d 381, 577 N.E.2d 532, the failure of the police officer to physically hand defendant a ticket for the DUI offense before requesting that defendant submit to the breathalyzer test required that the summary suspension of his driving privileges be rescinded. Discussion was had on the matter, and the trial court requested the parties to submit case law on the subject. Further argument was held on February 24, 1992, where defense counsel maintained, as he does here, that stare decisis required that the trial court follow the Mannon decision since it is the most recent ruling on the amended statute.

The trial court pointed out that the General Assembly had not changed the wording of the subsection of the statute under consideration even though it had amended the statute numerous times and, because of this, the court ruled that the existing case law, which focused on the evidence of arrest, was controlling. The court found this ruling consistent with Mannon, where no arrest for DUI was evident, and the language in Mannon requiring the police officer to physically hand the DUI ticket to the subject before requesting the test was merely dicta, which did not reflect the law. Accordingly, the trial court denied defendant’s rescission petition.

Opinion

The phrase “as evidenced by the issuance of a Uniform Traffic Ticket,” which appears in section 11 — 501.1(a) of the implied consent section of the Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1(a)), has been interpreted by reviewing courts as directory rather than mandatory (see, e.g., People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 454 N.E.2d 1166; see also People v. Grange (1989), 181 Ill. App. 3d 981, 537 N.E.2d 1153; People v. Adams (1984), 128 Ill. App. 3d 725, 471 N.E.2d 575). The operative factor triggering the summary suspension provisions of the Code has been identified as an arrest for driving under the influence of alcohol or drugs. (People v. Jones (1990), 198 Ill. App. 3d 572, 555 N.E.2d 1143.) The determination as to “[wjhether the person was placed under arrest for an offense as defined in Section 11 — 501, or a similar provision of the local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket” (Ill. Rev. Stat. 1991, ch. 951/2, par. 2—118.1(b)(l)), is the first area of inquiry in the implied consent hearing.

The standard for determining whether an arrest has occurred is whether a reasonable person innocent of any crime would have considered himself under arrest considering all the circumstances. (People v. Bulman (1991), 212 Ill. App. 3d 795, 571 N.E.2d 850.) In situations such as the one at bar, the issuance of a traffic ticket is a convincing way to establish the fact of arrest. (Ellerbusch, 118 Ill. App. 3d at 503.) This, however, is not conclusive (Jones, 198 Ill. App. 3d at 575), and courts have found that other circumstances, such as the police officer’s continuing possession of an individual’s driver’s license, the handcuffing of the individual or placing the individual into a squad car, may also indicate that an arrest has taken place. (Bulman, 212 Ill. App. 3d at 804.) The trial court’s determination of this matter will not be disturbed on review unless it was manifestly erroneous. Jones, 198 Ill. App. 3d at 574-75.

The trial court’s interpretation of Mannon was accurate. In People v. Bahnfleth (1992), 233 Ill. App. 3d 289, 599 N.E.2d 16, the third district restricted Mannon to its facts and clarified that any language in that case requiring the officer to actually issue and serve a DUI citation to defendant prior to requesting the breath test was dicta. (Bahnfleth, 233 Ill. App. 3d at 293.) Then, in People v. Scheperle (1992), 236 Ill. App. 3d 987, 603 N.E.2d 149, the same court ruled that the issuance and service of a written citation is not a prerequisite for a valid arrest for DUI, and the fact that the ticket may not have been issued to defendant until after he took the test to determine intoxication is immaterial. Accord People v. Selby (1993), 241 Ill. App. 3d 80.

Thus, the pivotal question in this type of case continues to be whether defendant was placed under arrest for DUI prior to the officer’s request that he submit to the appropriate test, not the time the citation was actually served on defendant. (Selby, 241 Ill. App. 3d at 83.) In the case at bar, the defense conceded that defendant had been arrested for DUI prior to the officer’s request, and this fact was borne out in the hearing on defendant’s petition and by the record as a whole.

For the reasons stated, we conclude that the arresting officer complied with the controlling statutory provision (Ill. Rev. Stat. 1989, ch. 951/2, par. 11—501.1(a)), and we find no error in the trial court’s denial of defendant’s petition for rescission of the statutory summary suspension of his driving privileges.

Therefore, the order of the circuit court of Cook County is affirmed.

Affirmed.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE CAMPBELL

text:
    SAFEWAY INSURANCE COMPANY, Plaintiff-Appellant, v. AMERICAN ARBITRATION ASSOCIATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—2110
    Opinion filed May 24, 1993.

      Parrillo, Weiss & O’Halloran, of Chicago (Jon R. Parrillo and Keely Truax, of counsel), for appellant.
    Miller, Shakman, Hamilton & Kurtzon, of Chicago (Geraldine Soat Brown, of counsel), for appellees American Arbitration Association and Craig Gogins.
    Spinak, Levinson & Babcock, P.C., of Chicago (Laura Di Andrea-Iversen, of counsel), for appellee Harry Hamilton.
   JUSTICE CAMPBELL

delivered, the opinion of the court:

Plaintiff Safeway Insurance Company (Safeway) appeals orders of the circuit court of Cook County: (1) denying plaintiff’s motion to stay an arbitration conducted under the auspices of defendant American Arbitration Association (AAA) in a matter administered by defendant Craig Gogins and arbitrated by Ellis M. Sostrin; (2) confirming an arbitration award in favor of defendant Harry Hamilton; and (3) dismissing a complaint that sought to vacate the award. For the following reasons, we dismiss the appeal in part and affirm in part.

The record on appeal indicates that Safeway’s motion to stay arbitration and its later complaint contain substantially similar allegations of fact. On April 10, 1987, Hamilton was a named insured on a policy issued by Safeway. The policy provided uninsured motorist coverage and provided for arbitration of claims arising under that coverage. The policy also provided that no action shall lie against Safeway unless, as a condition precedent, the insured is in full compliance, with the terms of the policy. One of the conditions of the policy is that the insured shall submit to examinations under oath by any person representing Safeway as often as may reasonably be required.

Hamilton apparently had occasion to make an uninsured motorist claim under the policy, though the record does not indicate the date or nature of the claim. On January 31, 1990, Hamilton filed a demand for arbitration with the AAA. Hamilton had not given a sworn statement at that time.

Safeway alleges that it demanded that the AAA close the file and arrest administration of the arbitration until the sworn statement was given. Safeway alleges that Gogins and the AAA refused and continued to administer arbitration of the claim, eventually appointing Ellis M. Sostrin as the arbitrator. Sostrin was not made aware of the conflict between the parties. Safeway demanded that the AAA submit a new list of potential arbitrators and that the AAA refused to do so.

On November 30, 1990, Safeway filed a complaint to stay arbitration against the AAA and Gogins. On February 1, 1991, the trial court entered an order finding Hamilton to be a necessary party to the proceedings. On February 4, 1991, the trial court granted Safeway’s motion to amend the complaint to add Hamilton as a party.

On February 13, 1991, Safeway filed a motion to stay the arbitration, which was denied on February 19, 1991. Safeway alleges that the arbitration hearing was held on February 21, 1991. The arbitrator awarded $2,400 to Hamilton.

Though not a part of this record on appeal, we note that Safeway filed a notice of appeal to this court as to the February 19, 1991, order on February 25, 1991. However, Safeway moved to withdraw the appeal on March 22, 1991; the motion was granted without prejudice by this court on April 4, 1991.

On March 7, 1991, the AAA and Gogins moved to dismiss Safeway’s amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). On March 14, 1991, Hamilton moved to confirm the arbitration award. On March 18, 1991, the trial court granted the motions to dismiss Safeway’s amended complaint with leave to amend. Safeway’s second amended complaint was filed on April 15, 1991. Although Safeway entitled it a “Second Amended Complaint to Stay Arbitration,” the complaint seeks to vacate the award and have a new arbitration of the claim. Safeway also requested that the award be vacated in its response to the motion to confirm the award, which Safeway filed on April 29, 1991. Safeway claims in its brief that it also filed a motion to vacate, but the record citation refers to the aforementioned response.

On May 9, 1991, Hamilton moved to dismiss the second amended complaint; the AAA and Gogins did the same on May 13, 1991. On May 22, 1991, the trial court entered an order dismissing Safeway’s second amended complaint with prejudice, confirming the arbitration award and denying Safeway’s request to vacate the award. Safeway filed a notice of appeal regarding the orders entered on February 19 and May 22,1991.

I

Initially, we consider this court’s jurisdiction to consider the appeal of the February 19, 1991, order denying a stay of arbitration. Even when neither party raises the issue, this court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252, 1253; Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334, 538 N.E.2d 764, 765.) An order denying a motion to stay arbitration is considered to be an interlocutory order appealable pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)). (See Grane v. Grane (1985), 130 Ill. App. 3d 332, 339, 473 N.E.2d 1366, 1370-71.) This is because such orders are analogous to orders denying injunctive relief. (Grane, 130 Ill. App. 3d at 337-38, 473 N.E.2d at 1369-70.) Appeals taken pursuant to Rule 307(a)(1) must be perfected by the filing of a notice of appeal within 30 days from the entry of the interlocutory order. (107 Ill. 2d R. 307(a)(1).) Accordingly, a party seeking to appeal an order denying a motion to stay arbitration must perfect the appeal within 30 days from the entry of the order. See Robert A. Besner & Co. v. Lit America, Inc. (1991), 214 Ill. App. 3d 619, 623, 574 N.E.2d 703, 705-06.

In this case, the trial court denied Safeway’s motion to stay the arbitration on February 19, 1991. The record shows that the arbitration hearing was held on February 21, 1991. This court’s records show that Safeway filed a notice of appeal to this court on February 25, 1991, but moved to withdraw that appeal on March 22, 1991, stating that the February 19, 1991, order had become moot and that Safeway intended to file a second amended complaint including a petition to vacate the arbitration award. This court granted Safeway’s motion without prejudice on April 1, 1991.

An appellant has the right to voluntarily dismiss or withdraw an appeal before a decision on the merits; the effect of the dismissal is to leave the parties where they were before the appeal was brought. (See People ex rel. Waite v. Bristow (1945), 391 Ill. 101, 112-13, 62 N.E.2d 545, 550.) As Safeway is put in the position it was in before filing the interlocutory appeal, the appeal of the February 19, 1991, order is untimely.

II

We now turn to Safeway’s appeal of the order entered on May 22, 1991. The trial court dismissed Safeway’s second amended complaint to stay arbitration. Nothing in the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.) (Act) allows a party to make more than one application to the trial court for relief with respect to the propriety of staying or compelling arbitration. (Robert A. Besner & Co., 214 Ill. App. 3d at 624, 574 N.E.2d at 706.) However, the character of the pleading is to be determined from its content, rather than its title. (Robert A. Besner & Co., 214 Ill. App. 3d at 625, 574 N.E.2d at 707.) In this case, Safeway’s second amended complaint sought to have the trial court vacate the arbitration award and order a second arbitration. Accordingly, it would appear that the second amended complaint is better characterized as a motion to vacate the arbitration award.

The issue is whether the trial court erred in dismissing Safeway’s second amended complaint. A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) On appeal, this court will take all well-pleaded facts as true, but will disregard mere conclusions of law or fact unsupported by the facts alleged. (See Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344, 1349.) We may affirm the dismissal of the claim on any legally valid basis appearing in the record. Natural Gas Pipeline Co. of America v. Phillips Petroleum Co. (1987), 163 Ill. App. 3d 136, 142, 516 N.E.2d 527, 531.

Section 12 of the Act provides:

“(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in the proceedings under Section 2 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by the circuit court is not ground for vacating or refusing to confirm the award.” Ill. Rev. Stat. 1989, ch. 10, par. 112(a).

Initially, we note that Safeway’s second amended complaint does not expressly allege any of the statutory grounds for vacatur. Rather, Safeway alleges that the AAA and Gogins violated the “custom and practice” of the AAA in refusing to voluntarily arrest the proceedings. Safeway does not raise this argument on appeal, thereby waiving it. Moreover, the record does not indicate that Safeway cited any authority for the proposition that a violation of AAA customs is sufficient grounds for staying an arbitration or vacating an arbitration award.

In contrast, Safeway claims on appeal that there are three statutory grounds for vacating the award. These contentions actually appear to be three ways of making the same objection raised in the earlier motions to stay arbitration, i.e., that the administration of this case, including the appointment of the arbitrator, could not proceed because Hamilton did not give his sworn statement before filing his demand for arbitration. As this basic contention is alleged in the second amended complaint, we address each of Safeway’s arguments in turn.

A

Safeway argues that the arbitrator exceeded his powers because he was not appointed in accordance with the terms of the insurance policy and the AAA Accident Claims Arbitration Rules (AAA Rules). The policy at issue provides as follows:

“PART II — UNINSURED MOTORIST COVERAGE
* * *
Arbitration. If any person making claim hereunder and the company do not agree that both vehicle(s) and the drivers(s) of the vehicle(s) with which any person making claim has had an accident, were not covered by liability insurance at the time of the accident, or do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured or damage to a vehicle described in the policy or do not agree to the amount payable hereunder, then these matters shall be submitted to arbitration. Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the two arbitrators shall select a third arbitrator. If such arbitrators are not selected within 45 days from such request either party may request that the matter be submitted to the American Arbitration Association. ***
* * *
CONDITIONS
***
6. Action Against Company ***
Parts II, III, IV and V. No action shall lie against the company unless, as a precedent thereo [sic], there shall have been full compliance with all terms of this policy ***.
* * *
9. Proof of Claim: Medical Report — Part II and III. *** The insured and every other person making claim shall submit to examinations under oath by any person named by the company and subscribe the same, as often as may reasonably be required.”

The AAA Rules provide in relevant part as follows:

“1. Agreement of Parties
The parties make these rules a part of their arbitration agreement whenever a policy of insurance or applicable insurance-department regulation provides for arbitration by the American Arbitration Association (AAA) in connection with a dispute involving a motor-vehicle liability claim. These rules and any amendment of them shall apply in the form obtaining at the time of the arbitration is initiated, except for any such provision that may be inconsistent with the arbitration agreement or with applicable law.
* * *
4. Initiation under an Arbitration Provision in a Policy
When the conditions precedent contained in the insurance policy or state insurance-department regulation have been complied with, arbitration shall be initiated by filing a written Demand for Arbitration. The demand shall be served by US certified mail-return receipt requested. ***
* * *
The AAA will acknowledge receipt of the demand to all parties. If, within thirty calendar days after acknowledgement of the demand by the AAA, the insurer moves in court to contest coverage, applicable policy limits, or the stacking of policy coverage, administration will be suspended until such issues are decided.
* * *
Unless there is (1) an agreement to submit such issues to voluntary coverage arbitration, (2) a motion to contest coverage, applicable policy limits, or the stacking of policy coverage made within thirty days after acknowledgement of the demand by the AAA, or (3) a court order staying arbitration, the AAA will proceed with the administration of the case.
* * *
8. Designation of Arbitrator
Unless applicable law or the agreement of the parties provides otherwise, the dispute shall be determined by one arbitrator, except as otherwise provided in this section. The AAA will submit a list of nine members of the Accident Claims Panel from which each party shall have the right to strike up to two names on a peremptory basis, within twenty days of the AAA’s submission of the list. The AAA will appoint the arbitrator from among the remaining names.”

Safeway primarily relies on Emcasco Insurance Co. v. Alvarez (1969), 110 Ill. App. 2d 307, 249 N.E.2d 190. In Alvarez, which involved a similar “sworn statement” condition, the insurer filed for a declaratory judgment that the insured’s failure to meet the condition was a breach of the policy and the insureds were not entitled to coverage of their uninsured motorist claim. (Alvarez, 110 Ill. App. 2d at 310, 249 N.E.2d at 191.) The trial court entered orders requiring the insureds to submit to an examination and later granting relief to the insurer when the insureds failed to comply with the first order. (Alvarez, 110 Ill. App. 2d at 311-12, 249 N.E.2d at 191-92.) This court affirmed on appeal, stating in part that the examination provision was a condition precedent to enforcement of the insureds’ claim that was not terminated by the filing of a demand for arbitration. (Alvarez, 110 Ill. App. 2d at 314, 249 N.E.2d at 193.) This court also stated that the insurer’s declaratory judgment action basically presented an issue of coverage and did not supplant an existing remedy or other appropriate action. Alvarez, 110 Ill. App. 2d at 314, 249 N.E.2d at 193.

Although the policies appear to be similar, Alvarez is distinguishable from this case. Alvarez focused on the insurer and insured and is silent regarding the AAA Rules. Here, Safeway claims on appeal that the AAA and AAA personnel violated AAA Rules 1 and 4 by proceeding with administration of the arbitration after being informed that a condition precedent had not been met by the insured. Yet the AAA Rules do not indicate that the AAA will suspend administration of an arbitration simply because the insurer believes that the insured has filed a demand without meeting a condition precedent. To the contrary, Rule 4 expressly states that administration will proceed unless there is an agreement to submit such issues to voluntary coverage arbitration, a motion to contest coverage, applicable policy limits, or the stacking of policy coverage made within 30 days after acknowledgement of the demand by the AAA or a court order staying arbitration.

In this case, Safeway does not allege in its second amended complaint that there was a voluntary agreement to submit the issue to voluntary arbitration. Nor does the record indicate that Safeway moved in court to contest coverage within 30 days of the AAA letter acknowledging the demand for arbitration. Nor had the trial court entered a stay of arbitration. Consequently, the AAA and its personnel proceeded to the appointment of an arbitrator in accord with Rule 8.

Safeway responds that pursuant to AAA Rule 1, the terms of the Safeway policy control over the AAA Rules and that the policy provides that there can be no arbitration without meeting the conditions precedent. Yet Safeway relies heavily on Alvarez, in which this court indicated that whether the “sworn statement” condition has been met is basically an issue of coverage. (Alvarez, 110 Ill. App. 2d at 314, 249 N.E.2d at 193.) Absent an agreement between the parties to the contrary, the issue of whether there is an agreement to arbitrate and issues of coverage under an uninsured motorist provision are generally questions of law outside the authority of an arbitrator that must be determined by the trial court. (See, e.g., Elliot v. Inter-Insurance Exchange of the Chicago Motor Club (1988), 169 Ill. App. 3d 702, 707, 523 N.E.2d 1086, 1090; Allstate Insurance Co. v. Elkins (1978), 63 Ill. App. 3d 62, 64-65, 381 N.E.2d 1, 3, aff’d (1979), 77 Ill. 2d 384, 396 N.E.2d 528; see also State Farm Fire & Casualty Co. v. Yapejian (1992), 152 Ill. 2d 533, 539, 605 N.E.2d 539, 542-43 (Illinois Insurance Code does not mandate arbitration of coverage questions).) As the AAA and Gogins lacked the authority to decide the issue in this instance, their adherence to Rule 4 was not inconsistent with the Safeway policy in violation of Rule 1. Safeway argues that it should not be required to obtain a judicial determination of whether the condition precedent was met. Yet this is exactly what the insurer in Alvarez did. It is also what the AAA Rules and cases such as Elliot and Elkins required in this instance.

Safeway points out that Hamilton agrees that the sworn statement was a condition precedent to coverage. However, this statement on Hamilton’s behalf appears in Hamilton’s appellate brief; Safeway identifies no portion of the record where Hamilton admitted this to the trial court or the AAA. Moreover, Safeway has failed to show or allege that such agreement would require the AAA or its personnel to completely halt the proceedings.

Accordingly, we conclude that defendant has failed to allege or show that Gogins and the AAA acted in violation of the policy terms or the AAA Rules. Consequently, defendant has failed to show that the second amended complaint states a claim for which relief may be granted in this regard.

B

Safeway also contends that the award was procured by “undue means.” This term has been construed to mean something akin to fraud or corruption. (Drinane v. State Farm Mutual Automobile Insurance Co. (1991), 222 Ill. App. 3d 805, 810, 584 N.E.2d 410, 414, aff’d (1992), 153 Ill. 2d 207, 606 N.E.2d 1181.) Safeway has failed to cite any authority that the administration of prehearing proceedings prior to the satisfaction of the sworn statement requirement is fraudulent'or corrupt. Nor did Safeway allege fraud or corruption on the part of Gogins, the AAA or the arbitrator. Calabrese v. State Farm Mutual Automobile Insurance Co. (1989), 187 Ill. App. 3d 349, 543 N.E.2d 215, which Safeway cited in support of its arguments, involved a complaint for vacatur of an arbitration award alleging a substantial relationship between the arbitrator and one of the parties should not have been dismissed for failure to state a claim. (See Calabrese, 187 Ill. App. 3d at 351-52, 543 N.E.2d at 216-17.) No such allegations are made here. Accordingly, defendant has failed to show that the trial court erred in dismissing the second amended complaint in this regard.

C

Finally, Safeway contends that there was no agreement to arbitrate before a sworn statement was given. Assuming arguendo that this is true, it would be a necessary but not sufficient condition to vacatur. Section 12 requires that a party seeking vacatur show not only that there was no arbitration agreement, but also that the issue was not adversely determined in the proceedings under section 2 and that the party did not participate in the arbitration hearing without raising the objection. (See Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(5).) In this case, the record shows that Safeway moved to stay arbitration on the ground that there was no agreement to arbitrate before the sworn statement was given. The record also shows that this motion was denied. The issue was thus decided adversely to Safeway in proceedings under section 2 and cannot be a basis for vacatur in this case.

Of course, Safeway maintains that the trial court erred in failing to stay the arbitration on February 19, 1991. As noted above, the appeal of the February 19, 1991, order is untimely. Nevertheless, this court could reverse the order if it were in error and would adversely affect Safeway’s rights by way of res judicata. (Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 430 N.E.2d 139.) However, Safeway cannot meet this standard in this case, particularly where Safeway alleged that the arbitrator was not made aware of the dispute; Safeway failed to allege any misconduct on the part of the arbitrator; and the transcript shows that the parties informed the trial court that the sworn statement had been taken before Safeway filed its initial complaint to stay arbitration.

For all of the aforementioned reasons, we dismiss the appeal of the February 19, 1991, order of the circuit court of Cook County, and affirm the judgment of the circuit court of Cook County as to the order of May 22,1991.

Dismissed in part; affirmed in part.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE ex rel. THE DEPARTMENT OF STATE POLICE, Plaintiff-Appellant, v. ZBIGNIEW MAMOK, Defendant-Appellee.
    First District (1st Division)
    No. 1—91—3594
    Opinion filed May 24, 1993.
    Roland W. Burris, Attorney General, of Springfield (John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Donald Rendler-Kaplan & Associates, of Chicago (Jeffrey M. Cohen, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, People of the State of Illinois ex rel. the Illinois Department of State Police, appeals from a June 5, 1991, order of the circuit court of Cook County which granted defendant Zbigniew Mamok’s motion to dismiss its complaint as time barred pursuant to the two-year limitations period of section 13—202 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13—202). The sole issue on appeal is whether the circuit court properly granted defendant’s motion to dismiss. We affirm.

On December 27, 1986, defendant was involved in an automobile accident with James Warren, an employee of the Illinois Department of State Police. Warren was injured in the accident, and the Department paid Warren $8,266.89 in workers’ compensation benefits and medical bills totaling $1,529.20.

Plaintiff’s complaint, filed January 26, 1989, sought reimbursement of these sums. Defendant successfully moved to dismiss plaintiff’s complaint as time barred pursuant to section 13 — 202’s two-year limitation period.

Plaintiff posits on appeal that reversal is warranted because it is immune from defendant’s statute of limitations defense. In support, plaintiff relies on cases such as Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580, County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076, and City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874, which helped develop and apply the common law doctrine that governmental entities are immune from statutes of limitations in actions involving “public” rights. Plaintiff asserts that its complaint asserts such a public right.

Defendant responds that plaintiff’s action is nothing more than a subrogation suit. Accordingly, because Warren, the subrogor, cannot maintain a time-barred suit against defendant, neither can his subrogee, plaintiff herein. Defendant further responds that plaintiff’s suit does not involve a public right.

We need go no further than the Illinois Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) to affirm the circuit court’s dismissal of plaintiff’s action. Section 1 of the Act defines “employer” to include “[t]he State and each county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein.” Ill. Rev. Stat. 1989, ch. 48, par. 138.1.

Section 5 of the Act provides the mechanism by which an “employer” under the Act can obtain reimbursement of monies paid to one of its “employees” from a third party who has injured the employee. Section 5 provides in relevant part:

“(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. ***
* * *
If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.
* * *
In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act ***.” Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).

Section 5(b) of the Act has been interpreted as creating “in the employer a right akin to the common law right of subrogation.” (Knowles v. Mid-West Automation Systems, Inc. (1991), 211 Ill. App. 3d 682, 687, 570 N.E.2d 484, citing Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 381, 442 N.E.2d 546.) Its purpose is “to ‘make whole’ an employer who, though not liable under ordinary tort law, is nevertheless liable to his injured employee under the [Act].” (Public Litho Service, Inc. v. City of Chicago (1972), 8 Ill. App. 3d 315, 317, 290 N.E.2d 677.) Section 5(b) embraces both an action for “damages” by the employer on behalf of its employee as well as one seeking merely reimbursement of monies paid to its employee. Department of Law Enforcement v. Willis (1978), 61 Ill. App. 3d 495, 498, 378 N.E.2d 239.

In Joseph Schlitz Brewing Co. v. Chicago Rys. Co. (1923), 307 Ill. 322, 327, 138 N.E. 658, the court held that the right of the employer to sue a third-party tortfeasor is not a new cause of action ereated by the Act, but is “the employee’s right of action taken from him and transferred to the employer.” In McCormick v. Zander Reum Co. (1962), 25 Ill. 2d 241, 244, 184 N.E.2d 882, the supreme court stated that as a subrogee, the employer can have no greater rights than its employee/subrogor and can enforce only such rights as its subrogor could enforce. Thus, an employer is time barred from asserting a claim against a third-party tortfeasor if the suit was not brought within the time limit which the employee had to bring the suit initially. McCormick, 25 Ill. 2d at 244; accord Knowles, 211 Ill. App. 3d at 690; Public Litho Service, Inc., 8 Ill. App. 3d 313, 290 N.E.2d 677.

In this case, we believe the State’s action against defendant is time barred. In stepping into the shoes of Warren, the State received only what Warren possessed against defendant — a time-barred action.

County of Du Page (109 Ill. 2d 143, 485 N.E.2d 1076) supports our conclusion. There, the County of Du Page sued architects and contractors for the defective design and construction of the Du Page County administration building. These defendants moved to dismiss the county’s suit based on section 13 — 214 of the Code, which sets forth the applicable limitations period in lawsuits involving the design and construction of improvements to real property. The county replied that it was immune from defendant’s section 13 — 214 defense, and the circuit court agreed. Defendants’ motion to dismiss was accordingly denied.

The supreme court reversed the circuit court. Applying standard canons of statutory construction, the supreme court held that section 13 — 214, which defined “person” to mean any “individual, any business or legal entity, or any body politic” (emphasis added) (Ill. Rev. Stat. 1989, ch. 110, par. 13—214), abrogated the county’s common law governmental limitations immunity. The court stated that “it is well established that where a statute of limitations does ‘expressly include the State, county, municipality, or other governmental agencies,’ common law governmental limitations immunity will not bar a limitations defense predicated on that statute.” County of Du Page, 109 Ill. 2d at 152-53.

In light of its holding, the supreme court found it unnecessary to address whether the county’s suit asserted a “public” right. “That becomes an appropriate inquiry only where a statute of limitation does not expressly state that it applies to a governmental entity.” County of Du Page, 109 Ill. 2d at 153.

Here, the term “employer” within the Act expressly includes the State. Thus, when asserting a right of reimbursement under section 5(b) of the Act, the State is to be treated no differently than other employers. As Warren’s subrogee, the State received Warren’s time-barred claim. Whether the State’s action asserted a “public” right is, under County of Du Page, an irrelevant inquiry.

For these reasons, defendant’s motion to dismiss was properly granted. Accordingly, the June 5, 1991, dismissal order of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELILAH GONZALEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—3052
    Opinion filed May 26, 1993.

      Rita A. Fry, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Stephen Ferrucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant Delilah Gonzalez was convicted of first-degree murder and sentenced to a 40-year term of imprisonment. On appeal, she argues that the prosecutor’s closing argument denied her right to a fair trial. In addition, defendant asserts that the sentence was excessive.

The evidence presented at trial revealed that Anthony Bruno was fatally stabbed in the chest on a Chicago Transit Authority bus around 5 p.m. on September 18, 1988. Sandra Borges testified that she was a passenger on that bus at the time of the incident. She recalled that three people boarded the bus at Fullerton and Austin. Borges testified that she thought all three individuals were males. They moved to the back of the bus, speaking Spanish and some English. When the victim, Anthony Bruno, entered the bus, one of the three individuals stated that they were Cobras and Bruno was a Gay-lord, a rival gang. Bruno sat across from Borges.

One of the three individuals then walked to the front of the bus, one stood near the rear exit door and one stood next to the victim. The two people in the rear of the bus looked at each other and then one stabbed the victim while the other held the rear door open. The three individuals fled. Borges testified that she did not get a good look at them. Further, she never heard anyone state that he or she wanted to stab someone.

Timothy Kimbler was a passenger on the bus with his girl friend, Sherry Burris. Kimbler and Burris sat near the back of the bus. Three Hispanics boarded the bus at Austin Avenue and walked to the rear of the bus. Defendant, who Kimbler thought was male, began fondling a five-inch brown knife which was closed. Burris then moved one seat forward and defendant changed seats. One of defendant’s companions wrote graffiti on the windows of the bus with white shoe polish. In addition, defendant motioned toward the victim and said, “Gaylord.” Defendant then handed the knife to one of her companions and the other companion walked to the front of the bus. As the bus slowed, the individual who had written the graffiti opened the knife. Defendant stood at the rear door of the bus. When the bus stopped, defendant’s companion stabbed the victim in the chest and then ran to the rear door, which defendant was holding open.

Kimbler subsequently traveled to the police station. He identified defendant’s companion who wielded the knife and defendant in separate lineups. At that time, Kimbler learned that defendant was female.

Sherry Burris corroborated Kimbler’s testimony concerning the events surrounding the murder. She further testified that the stabber wrote “STM” on the window, and the defendant stated, “I’ll hold the door open.” Burris also identified defendant and her companion in lineups.

Alana Freeman, the bus operator, testified that she was driving the bus on Fullerton Avenue. As she approached the intersection of Fullerton and Kildare, one individual walked to the front of the bus while his companions remained in the rear. One of them signalled for a stop. Freeman stopped the bus and, after a few seconds, looked in her rearview mirror to determine why the rear door remained open. She saw one of them holding the door open.

After the three individuals exited the bus, Freeman was informed that someone had been stabbed. She requested assistance and then held the victim, who died in her arms. Freeman further testified that she noted white graffiti on a rear window of the bus which had not been there when she started her shift.

Detective Phillip Boyle of the Chicago police department testified that he was assigned to investigate the murder of Anthony Bruno. Based upon information received by police officers, Boyle traveled to 3017 Keating Avenue in Chicago, where he recovered the murder weapon from an individual named Moratay.

Chicago police officer Michael Mason testified that he directed other officers to locate Julio Morejon, who was subsequently transported to police headquarters. Morejon admitted that he stabbed the victim.

Detective Hugh Conwell testified that he arrested defendant on September 21, 1988. Defendant was transported to Area 5 headquarters and advised of her constitutional rights. Defendant related that she was riding on the Fullerton Avenue bus with William Moratay and Morejon when she saw an individual she recognized as a Gaylord gang member. She told Morejon that the individual was a Gaylord and handed her knife to Morejon. She knew that Morejon would stab the victim. Defendant walked to the rear exit, held the door open after the bus stopped, and exited with Morejon after he stabbed Bruno.

Detective Renaldo Guevara testified as an expert in gang crime. This testimony revealed that about 70% of gang murders result in retaliation. This retaliation is characterized by murdering a rival gang member on the one-year anniversary of the initial killing.

Assistant State’s Attorney Mary Beth Kinnerk met defendant around 2 p.m. on September 21, 1988, at police headquarters. After defendant stated that she understood her rights and would give a statement, defendant indicated that no threats or promises were made to induce her statement and that she was making a statement of her own free will.

Defendant’s court-reported statement was read into evidence. Defendant related that she, Morejon and Moratay got on a Fullerton bus at Austin Avenue. Morejon was a member of the Imperial Gangsters. Defendant identified herself as a tagger, a person who writes graffiti on buses. Defendant recognized the victim as a member of the Gaylords’ street gang. According to defendant, she had previously seen the victim arguing with one of Morejon’s friends about gang matters. Defendant told Morejon about the previous argument. Morejon then told defendant to give him her knife and further told her to hold the rear door open. Morejon knew that defendant had a knife because she had used it to scrape graffiti on the bus window. Defendant also knew that Morejon intended to stab the victim, and she complied with his instructions, holding the door open so that Morejon could make his getaway.

This statement further revealed that defendant’s brother, a member of the Spanish Cobras’ gang, was murdered on September 17, 1987. Defendant thought that he was killed by a member of the Gay-lords’ gang because blonde hair was found on his clothes, and the Gaylords are white. Defendant kept those hairs on her dresser at home.

Defendant now asserts that the closing argument presented by the prosecutor served to deny her a fair trial. Defendant identifies the prosecutor’s request that the jurors compare the rights accorded defendant against the lack of fairness accorded the victim.

The relevant colloquy occurred:

“[Assistant State’s Attorney]: Throughout these proceedings, in fact, from the time that the police first went to Delilah Gonzalez’ house to place her under arrest until the time she was brought to the police station until this day as we stand in this courtroom, the defendant has been accorded total fairness.
[Defense Counsel]: Objection, your Honor. That is for the jury to decide.
THE COURT: Total — what was the last word?
[Assistant State’s Attorney]: Fairness, Judge.
THE COURT: That’s for the jury to decide, counsel, proceed.
[Assistant State’s Attorney]: When the defendant was arrested, the police who went there offered her mother a ride to the police station. They brought the defendant to a police station, put her in an interview room and took the handcuffs off. She was advised of her rights. She was told that she didn’t have to talk to the detectives if she didn’t want to, that she could see a lawyer if she wanted to, that she could stop questioning at any time. And then she was interviewed.
And then an Assistant State’s Attorney came and told her all of the same things, all of her Constitutional rights. And the same thing again in front of a court reporter, she was told of her rights, told she didn’t have to say these things, told that she could do what she wanted. While they are waiting for the court reporter, food is provided for the defendant. She stated she was hungry, and the State’s Attorney provides her with food.
Throughout the entire time at the police station I would submit to you nothing untoward was done towards this defendant. There is no inference, absolutely not a shred of evidence in this trial that this statement is anything other than the voluntary statement of Delilah Gonzalez.
And when the defendant comes here, ladies and gentlemen, and in accordance with the rights that she has, she has a public trial, she is provided with competent defense counsel, an impartial judge—
[Defense Counsel]: Objection, Judge.
THE COURT: Overruled.
[Assistant State’s Attorney]: —and a jury of her peers. All these things, ladies and gentlemen, the fairness that she has been accorded, was not accorded to Anthony Bruno. When Anthony Bruno was on that bus that day—
[Defense Counsel]: Objection, your Honor.
THE COURT: Overruled.
[Assistant State’s Attorney]: When Anthony Bruno was on that bus that day, ladies and gentlemen, he was tried in the court of Julio Morejon and Delilah Gonzalez, and he was not treated fairly. He didn’t get a chance to see his accusers.
[Defense Counsel]: Objection.
THE COURT: Objection noted. Overruled.
[Assistant State’s Attorney]: He never saw his accusers. He never knew what it was that he was suspected of doing wrong. He was never told what it was that he was accused of. His trial lasted the 10 or 15 seconds it took that bus to slow down while the defendant stood at the door waiting to hold the door for Julio Morejon, while Julio Morejon stood next to Bruno shaking his hand getting up the nerve to commit this first degree murder.
The fairness that was denied Anthony Bruno we are asking on behalf of the People of the State of Illinois today, we are asking for a fair and just verdict. And the only verdict I would submit to you that you can conclude based upon the evidence in this case, we are asking you to find the defendant, Delilah Gonzalez, guilty of the first degree murder of Anthony Bruno because she is guilty. Just as sure as she is sitting here today, ladies and gentlemen, she is guilty of the murder of Anthony Bruno. We are asking you to so find.”

A prosecutor is permitted wide latitude in the presentation of argument to the jury. (People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448.) However, the Illinois Supreme Court “has condemned prosecutorial references to the rights of the victim or the victim’s family which tend to distract jurors from their consideration of the evidence of defendant’s guilt.” (People v. Smith (1992), 152 Ill. 2d 229, 267, 604 N.E.2d 858.) Based upon Smith, we determine that the prosecutor’s comparison of the constitutional protections afforded the defendant and the violated rights of the victim constituted error.

However, our inquiry does not end at this point. If evidence of a defendant’s guilt was substantial and the fairness of the trial was not compromised, reversal is not required. (People v. Smith, 152 Ill. 2d at 269.) Thus, the arguments must be assessed within the context of the trial in its entirety. (People v. Tate (1970), 45 Ill. 2d 540, 259 N.E.2d 791.) The evidence presented in the instant case was not closely balanced and was clearly sufficient to support a guilty verdict in the absence of the prosecutor’s improper argument.

The evidence in this case revealed that defendant identified the victim as a Gaylord gang member to her companion. Defendant fondled the knife before she handed the weapon to Morejon, who stabbed the victim. Defendant admitted that she knew Morejon was going to stab the victim when she gave him the knife, and that she held the rear door of the bus ajar thus assisting in the killer’s escape. Her statement further revealed that defendant thought that her brother was killed by a Gaylords’ gang member on September 17, 1987, a year and a day before the murder at issue. In light of the evidence demonstrating defendant’s guilt, we cannot say that the prosecutor’s arguments were significantly prejudicial to constitute a material factor in the jury’s verdict. Thus, the error was harmless.

Defendant further asserts that the imposed sentence violated the constitutional requirements of proportionality and rehabilitation. Defendant was convicted of first-degree murder with an applicable sentencing range of 20 to 60 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(1).) Although the imposition of the 40-year sentence was within the trial court’s statutory authority, the sentence may be reduced pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) if its imposition constitutes an abuse of the trial court’s discretion. People v. Batchelor (1990), 202 Ill. App. 3d 316, 559 N.E.2d 948.

Defendant specifically argues that her sentence is disproportionate when compared to the sentences imposed on other youthful defendants convicted of murder and other murder convictions characterized by similar or more aggravating factors. As noted in People v. Conaway (1981), 101 Ill. App. 3d 202, 204, 427 N.E.2d 1302, individuals who commit separate crimes are “seldom, if ever, similarly situated,” and thus, defendant’s proportionality arguments cannot succeed.

In the instant case, the circumstances surrounding the instant offense and the mitigating and aggravating factors were before the trial court. In imposing sentence, the trial court noted that defendant was the instigator and that she used the stabber as her tool for vengeance. The trial court further noted that the stabber was sentenced to 40 years and defendant was at least equally responsible. Further, the court specifically found that defendant was proved to be a significant danger to others and that her actions exhibited callousness. The trial court considered numerous factors in imposing the sentence, and we find that defendant has not demonstrated that the imposed sentence constituted an abuse of discretion.

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

Affirmed.

TULLY, P.J., and GREIMAN, J., concur.


author: PRESIDING JUSTICE TULLY

text:
      In re MARRIAGE OF EVALYN VANEK, Petitioner-Appellant, and KENNETH VANEK, Respondent-Appellee.
    First District (3rd Division)
    No. 1—91—2351
    Opinion filed May 26, 1993.

      Herbert A. Glieberman, of Herbert A. Glieberman & Associates, of Chicago (Donald L. Metzger, of counsel), for appellant.
    Norman H. Lesser, of Norman H. Lesser & Associates, of Chicago (James K. McCabe, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the. court:

On January 28, 1991, petitioner filed a petition pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, et. 110, par. 2—1401) to modify a judgment for dissolution of marriage awarded the parties on October 21, 1981. Petitioner specifically requested an equitable distribution of respondent’s military pension benefits. The trial court dismissed the section 2 — 1401 petition based upon petitioner’s failure to file her petition within the two-year statute of limitations governing the modification of judgments.

Petitioner Evalyn Vanek (Evalyn) married respondent Kenneth Vanek (Kenneth) in 1954 and bore six children. Evalyn worked as a registered nurse, and Kenneth was employed in the banking industry. On October 21, 1981, the parties were granted a judgment for dissolution of marriage. Although the parties and the trial court were aware of respondent’s military pension, it was not distributed under the judgment since, at that time, Federal law precluded the division of military pensions in dissolution proceedings held pursuant to State law. See McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728.

Effective February 1, 1983, Congress enacted the Uniform Services Former Spouses Protection Act (USFSPA) (10 U.S.C. § 1408(C)(1) (1988)) which nullified the McCarty decision and allowed States to divide military pensions in marriage dissolution proceedings “for pay periods beginning after June 25, 1981.” In order to effectuate the intent and spirit of section 1408 of the USFSPA, the Illinois General Assembly added section 510.1 to the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act), which provided, inter alia:

“(a) Agreements, judgments or orders that became final on or after June 26, 1981, and February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal íaw and the law of this State as it existed before June 26, 1981, and it has existed since February 1,1983.
* * *
(e) This section is repealed on January 1, 1989.” Ill. Rev. Stat. 1987, ch. 40, par. 510.1.

Section 510.1 provided a legal avenue for parties to reopen marriage judgments rendered in the McCarty era when military pensions were precluded from aportionment. The legislature in effect extended the normal two-year statute of limitations governing the modification of judgments (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401) until January 1, 1989, when the extension became repealed by its own terms.

On January 31, 1991, more than two years after section 510.1 was repealed, Evalyn filed a petition to modify her prior judgment in an effort to avail herself of the protections afforded her under the USFSPA. The trial court dismissed Evalyn’s petition on the grounds it was untimely and beyond the two-year statute of limitations governing the modification of judgments.

On appeal, petitioner argues her petition was improperly dismissed since: (1) the protections of the USFSPA were intended to apply retroactively to June 25, 1981; (2) the statute of limitations in section 510.1 of the Marriage Act frustrates the intent of Congress and is unconstitutional; (3) the judgment could be modified pursuant to sections 510(b) and 511 of the Marriage Act; and (4) the court may award the military pension as a supplemental judgment since the earlier judgment did not fully adjudicate the parties’ rights to the pension.

Initially, we consider whether Evalyn’s petition was properly filed pursuant to the USFSPA. The USFSPA was enacted to permit States to divide military pensions pursuant to State law. The USFSPA does apply retroactively to the extent that it applies to military pensions received after June 25, 1981. However, whether or not a party may modify a prior judgment in order to incorporate the benefits conferred by the USFSPA depends upon the particular State’s law governing the modification of judgments. See, e.g., In re Marriage of Vest (1991), 208 Ill. App. 3d 325, 329, 567 N.E.2d 47, citing Barnes v. Barnes (1987), 43 Cal. 3d 1371, 743 P.2d 915, 240 Cal. Rptr. 855 (USFSPA not intended to restrict State law on the modification of final judgments); Andresen v. Andresen (1989), 317 Md. 380, 564 A.2d 399 (petition to reopen marriage judgment under USFSPA denied where petition was filed more than four years after the entry of judgment); In re Marriage of Quintará (Mo. App. 1985), 691 S.W.2d 950 (petition to reopen judgment pursuant to USFSPA denied for lack of compliance with State law).

Turning to our State law, section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) permits litigants to set aside a judgment within two years of the date of the judgment or order. This two-year period may be tolled where the person seeking relief was under a legal disability, duress or the ground for relief was fraudulently concealed. Petitioner argues that the statute of limitations was tolled because she was under the legal disability of the McCarty decision, which prevented States from dividing military pensions. While we agree with this contention, we find that this “legal disability” was removed as of February 1, 1983, the date that the USFSPA became effective, allowing military pensions to be divided in accordance with State law. Thus, the section 2—1401 statute of limitations period was extended until February 1, 1985. However, because of the foreseeable hardship worked upon litigants such as petitioner, the Illinois legislature effectively extended the time for modifying a judgment, to include a division of military retirement benefits, until January 1, 1989. Even if petitioner’s judgment did not become final until January 1, 1989, the two-year period under section 2 — 1401 would have commenced on this date. Evalyn filed her petition on January 31, 1991, more than two years from the date her judgment became final. Therefore, the trial court properly dismissed the petition for failure to comply with the two-year statute of limitations. Moreover, we find no provision within the USFSPA which would allow petitioner to file for modification after this date. As stated, the time limit under the USFSPA had already expired on February 1, 1985, in accordance with State law. While the USFSPA was intended to restore to the States their traditional authority in the province of domestic relations, it was not intended to preempt or abrogate State procedural law. See Mansell v. Mansell (1989), 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023.

Petitioner alternatively argues that section 510.1 of the Marriage Act is unconstitutional in that it frustrates the original intent of Congress to place litigants in a preMcCarty position with respect to their right to receive military pension benefits. While we agree with this intent, we must add the condition that litigants are to be granted these rights in accordance with State procedural law. The USFSPA ostensibly did not provide an elaborate procedural mechanism for the modification of prior judgments. This would have been an obvious intrusion into the traditional State governance of civil procedure. That is not to say Congress was precluded from providing such a mechanism, as it has often done in matters of Federal importance. However, the reservation of these rights to the individual States further demonstrates congressional cognizance of the traditional role assumed by the States in matrimonial matters. Moreover, our State legislature enacted section 510.1 to further rather than frustrate the intent of Congress vis-avis the division of military benefits.

Evalyn also argues that her petition was valid under section 510(b) of the Marriage Act, which permits court to revoke or modify a property disposition “[if] the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(b).) As discussed supra, we do not find any basis under State law to reopen or modify the original judgment. Pursuant to State law, petitioner had several foregone opportunities to modify her judgment but failed to act. While her loss of rights is unfortunate, we are not in the business of creating custom-tailored laws which blatantly transgress the powers of the legislature.

Finally, petitioner argues that her petition may be brought as a separate action for a supplemental judgment to equitably distribute the military pension, which was previously excluded from division. We, likewise, find no merit in this contention. The military pension was not previously divided because the law at that time precluded its division. However, the pension was brought to the attention of the trial court and both parties were fully aware of its existence at that time. Therefore, the parties’ rights in the property were adjudicated by the original judgment within the confines of then existing law. Although petitioner’s rights to the pension were revived by the enactment of the USFSPA and extended by section 510.1 of the Marriage Act, petitioner failed to timely act and cannot now bring her action on a finalized issue.

Petitioner also attempts to appeal to the trial court’s reservation of jurisdiction in the original judgment which reserved jurisdiction “until this judgment be fully satisfied.” Petitioner argues that jurisdiction was retained because the military pension was never distributed. This argument ignores all statutory law on the finality of judgments. Again, if petitioner had acted timely, we may have found merit to this argument.

For all of the foregoing reasons, the order of the circuit court of Cook County is hereby affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.