author: JUSTICE BRESLIN

text:
    JAMES J. ROBERTS, JR., et al., Co-Adm’rs of the Estate of James J. Roberts, Deceased, Plaintiffs-Appellants, v. ALLSTATE LIFE INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—92—0652
    Opinion filed April 8, 1993.
    Goldfine & Bowles, P.C., of Peoria (James E. Bowles, of counsel), for appellants.
    Stephen R. Swofford and David E. Jones, both of Hinshaw & Culbertson, of Chicago (Kristin E. Hutson, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiffs, as co-administrators of the estate of James J. Roberts, deceased, brought a declaratory judgment action against the defendant, Allstate Insurance Company, seeking construction of certain language in an insurance policy which covered the decedent. The trial court granted summary judgment in favor of the defendant and the plaintiffs appeal. We affirm.

The deposition of Frank Penn, a co-worker of the decedent, reveals that on the date of the decedent’s injury the decedent and Penn were employed by the Chicago, Missouri & Western railway and were performing routine maintenance on two locomotives which were idling along a side track. Penn was working on the lower portion of the locomotives, and the decedent was working on the upper portions. Although the trains were idling, several braking mechanisms were engaged to prevent movement of the trains along the track. When he was asked whether the trains were vibrating, Penn testified that a person could probably have felt it if the person were touching the locomotive, but it was “not enough to vibrate anything.”

While Penn was working on the brakes of one locomotive, he heard a thud. He did not investigate immediately, but a few minutes later he looked toward where the decedent had been working and saw the decedent lying on the ground. There was a ladder nearby and the lid to the sand reservoir on top of the locomotive was open. The decedent was rushed to the hospital where he died approximately two weeks later without regaining consciousness. An autopsy showed that the decedent had not suffered a heart attack or a stroke.

At the time of the accident, the decedent was covered by an accidental death/disability insurance policy issued by defendant which provided different policy amounts for different types of accidents. Part II of the policy provided $100,000 coverage if the decedent was injured while “occupying a private passenger automobile,” “through being struck by a land motor vehicle” or “while driving for hire a land motor vehicle.” The plaintiffs made a claim under this portion of the policy, and the defendant denied coverage. The plaintiffs then filed a declaratory judgment action against the defendant seeking to have the court rule that the decedent had been “struck by a land motor vehicle” and was entitled to coverage under part II of the policy.

In their motion for summary judgment, the plaintiffs argued that the vibration of the locomotive must have caused the decedent’s fall and therefore the court should construe the vibrations as a “striking” within the meaning of the policy. The defendant, in its own motion for summary judgment, argued that the plaintiffs had produced no evidence about what had caused the decedent to fall and relied on conjecture to connect his fall to the vibrations of the locomotive.

The trial court granted the defendant’s motion and denied plaintiffs’ motion.

Plaintiffs argue on appeal that they have proven a “striking” as required by the language of the insurance policy in two ways. They argue first that any contact between the decedent and the locomotive is a striking regardless of how the contact was caused and in the alternative that the vibrations of the locomotive constitute a striking.

The insured has the burden of proving that his loss comes within the terms of his insurance policy. (Hays v. Country Mutual Insurance Co. (1963), 28 Ill. 2d 601, 192 N.E.2d 855; St. Michael’s Orthodox Catholic Church v. Preferred Risk Mutual Insurance Co. (1986), 146 Ill. App. 3d 107, 496 N.E.2d 1176.) The words of an insurance policy should be given their plain and ordinary meaning and courts should not strain to find ambiguity where none exists. (Northbrook National Insurance Co. v. N E H O C Advertising Service, Inc. (1989), 196 Ill. App. 3d 448, 554 N.E.2d 251.) If the provisions of the policy are unambiguous, they should be enforced as written. United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.

The plaintiffs urge us to adopt the test used by Illinois courts in determining the applicability of hit-and-run provisions of uninsured motorists’ policies and apply that test to the determination of whether the decedent was “struck by a land motor vehicle.” The test in question requires only that there be “contact” between the uninsured vehicle and the injured party. “Contact” has been found even in instances in which an object was thrown or propelled by the uninsured vehicle and struck the injured party. (See Illinois National Insurance Co. v. Palmer (1983), 116 Ill. App. 3d 1067, 452 N.E.2d 707.) The plaintiffs suggest that requiring some affirmative action on the part of the motor vehicle would leave insurance companies free to set the standard of how much affirmative action is needed and this construction would be “over technical.”

On the contrary, we find that using the interpretation urged by the plaintiffs would be “over technical.” The policy language in question here is “struck by a land motor vehicle.” One of the most commonly known meanings of the word “strike” is to hit or to deliver a blow. (See Webster’s Third New International Dictionary 2262 (1986).) Giving the words their plain and ordinary meaning leads to the conclusion that the phrase “struck by” means that the “land motor vehicle” must deliver the blow; it must be a causative force in the incident.

Although we find no Illinois cases which have construed the phrase “struck by a land motor vehicle,” we do find support for our position in two Texas Supreme Court cases which have construed the phrase “struck by an automobile.” In Houston Fire & Casualty Insurance Co. v. Kahn (Tex. 1962), 359 S.W.2d 892, the plaintiff’s son was injured when he ran his bicycle into the rear of a parked car. In Gallup v. St. Paul Insurance Co. (Tex. 1974), 515 S.W.2d 249, the injured person had driven his motorcycle into the rear of a car which was legally stopped at an intersection while waiting to make a left turn. In both cases, the court held that the injured person had not been “struck by” the automobile in question.

Because we hold that the plain and ordinary meaning of the phrase “struck by” requires the land motor vehicle to be a causative force, we decline the plaintiffs’ invitation to expand the rule applied in hit-and-run cases.

The plaintiffs further contend that they have proved that the locomotive was the causative force inasmuch as its vibrations caused the decedent’s fall. They argue that they do not have to prove that the vibrations were the sole cause or even the primary cause of the fall, only a cause. While this statement is true (see United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1987), 152 Ill. App. 3d 46, 504 N.E.2d 123), it is also true that liability may not be based on surmise or conjecture as to the cause of the injuries; proximate cause must be established by a reasonable certainty (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201).

To prove causation here, the plaintiffs rely on circumstantial evidence. In Krotke v. Chicago, Rock Island & Pacific R.R. Co. (1974), 26 Ill. App. 3d 493, 327 N.E.2d 212, the Appellate Court, First District, faced a factual situation similar to the one at bar. In Krotke the plaintiff had been walking on a train platform approximately two to three feet from the edge. After a train pulled up to stop, the plaintiff was found lying on the platform bleeding from behind his left ear. No one saw what had happened to the plaintiff, and the evidence showed that the greatest protrusion from the train was four inches. The court ruled that “no theory as to how the accident occurred can be established by circumstantial evidence unless the facts relied upon are of such a nature and so related to each other that it is the only conclusion that can be reasonably drawn from them.” (Krotke v. Chicago, Rock Island & Pacific R.R. Co. (1974), 26 Ill. App. 3d 493, 499, 327 N.E.2d 212.) The court upheld a judgment n.o.v. for the defendant based on a “complete absence of probative facts to support the conclusion” that the train hit the plaintiff. 26 Ill. App. 3d at 500.

Similarly, in the case at bar, there is a complete absence of probative facts to support the conclusion that the vibration of the locomotive caused the decedent to fall. Although heart attack and stroke were ruled out by the autopsy as possible causes of the decedent’s fall, any number of other causes remain, including the vibration of the locomotive. The decedent may have misstepped; he may have reached too far for something and lost his balance; or he may have become dizzy for some reason which would not be revealed in a post-accident examination. The only evidence which would allow a trier of fact to determine which of the possible causes is the only probable one is the testimony of the decedent’s co-worker that the vibration was so slight that a person would have to have been touching the locomotive to feel it at all. This tends to discredit the plaintiffs’ theory rather than bolster it.

In an action to construe an insurance policy, summary judgment is appropriate when there is no genuine issue of material fact and the court can decide the issue as a matter of law. (Rockford Mutual Insurance Co. v. Schuppner (1989), 182 Ill. App. 3d 898, 538 N.E.2d 732.) Here we find that the record does not show that the only probable cause of the decedent’s injury was the vibration of the locomotive. Therefore, the plaintiffs have failed to prove that their decedent was “struck by a land motor vehicle.” Accordingly, the defendant is entitled to summary judgment as a matter of law.

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

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    MANI ELECTRICAL CONTRACTORS, Plaintiff-Appellee, v. THEODOSIOS E. KIOUTAS et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—92—2732
    Opinion filed February 19, 1993.
    Rehearing denied April 7, 1993.

      Elsie G. Holzwarth, of Chicago, for appellants.
    Nicholas C. Syregelas, of Chicago, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is an action brought by Mani Electrical Contractors (plaintiff) to foreclose its mechanic’s lien on property owned by Theodosis E. Kioutas and Anna P. Kioutas (defendants).

Following a trial, plaintiff was awarded $6,765.68 plus statutory interest of 5% from August 8, 1984, to the date of the order, July 19, 1991. We affirm.

On December 14, 1982, the City of Chicago issued a letter listing electrical violations relative to property owned by defendants at 54 East Scott, Chicago, Illinois. Defendants sought to remedy the violations, met with Angelo Poulos, president of plaintiff, and on February 13, 1984, the parties entered into a contract for the performance of specified electrical work.

While plaintiff never applied for a permit to perform any work at 54 East Scott, a permit for that address was issued to Goulding Electric Company.

The plaintiff performed the electrical work on the building under the permit issued to Goulding and was paid $33,000 of the $45,000 contract price. Plaintiff sued to foreclose its mechanic’s lien, alleging it was owed a $12,000 balance plus $5,000 for extras. Defendants filed a countercomplaint alleging breach of contract and negligence and sought to recover the cost of completion of the work, damages caused by plaintiff, and lost rentals in the amouiit of $53,000.

Defendants present four issues on appeal: (1) whether the claim for the lien should be barred because plaintiff performed work under a permit issued to Goulding; (2) whether the court failed to address the issue of substantial performance and awarded damages correctly; (3) whether the court failed to address the issue of plaintiff’s negligence; and (4) whether it was proper to award interest.

In Federal Land Bank v. Walker (1991), 212 Ill. App. 3d 420, 422-23, 571 N.E.2d 242, the court stated:

“Merely because a contract may violate some law or some regulation does not necessarily make that contract unenforceable. Contracts are unenforceable when the subject matter of the contract or the purpose of the contract violated the law. [Citations.] ***
The power to declare a contract illegal and unenforceable comes from two sources: (1) the common law, declared by courts; and (2) the legislative branch of government. An example of a contract that has been judicially declared illegal and unenforceable is a contract that is in restraint of trade. [Citations.] Examples of contracts that have been legislatively declared illegal and unenforceable are gambling contracts and contracts for prostitution. [Citations.]
Contracts declared illegal and unenforceable thus run the gamut from those that restrain economic freedom to those that are nefarious and immoral. From this, it is deduced that a declaration of illegality and unenforceability is principled upon a finding that the contract has a deleterious effect upon society as a whole.”

The defendants argue that the trial court erred in finding that the plaintiff’s claim was not barred because the plaintiff proceeded while in violation of various sections of the Chicago Municipal Code (Code). (Chicago Municipal Code §§86 — 16, 86 — 37, 86 — 38 (1984).) The defendants reason that because the plaintiff did not comply with these provisions, the plaintiff acted illegally and, therefore, is not entitled to enforce its lien. The defendants rely on three provisions of the Code that allegedly rendered the plaintiff’s action unlawful. Section 86 — 16 states:

“It shall be unlawful for any person to engage in the business of electrical contractor, as herein defined, without being registered as an electrical contractor in the manner hereinafter set forth; provided, however, that if such person is already registered for the current year in another city or village within the state of Illinois, in conformity with the state statutes, such electrical contractor shall not be required to pay a registration fee in this city.” (Chicago Municipal Code §86 — 16 (1984).)

Section 86 — 37 states:

“It shall be unlawful for any person to install, alter, or repair any electrical wires or apparatus by authority of a permit issued to and for the use of some other person.” (Chicago Municipal Code §86-37 (1984).)

Section 86 — 38 states:

“It shall be unlawful for any registered contractor to secure or furnish a permit for the installation, alteration, and repair of electrical wires and apparatus to any person not entitled to such permit under the electrical regulations of this electrical code.” Chicago Municipal Code §86 — 38 (1984).

In his 29-page “Findings of Fact, Opinion and Judgment,” the trial judge stated that there was no testimony from any source that established that the arrangement was illegal or violative of any Chicago ordinance. On the contrary, there was testimony that Russell and two of Goulding’s workmen were involved with the work. We, however, need not address this issue because we find that even if plaintiff’s conduct did violate the Code, the contract is enforceable.

The defendants heavily rely on Bairstow v. Northwestern University (1936), 287 Ill. App. 424, 5 N.E.2d 269. In Bairstow, the land which plaintiff contracted to excavate for erection of a commercial building contained approximately five acres. A 60-foot x 125-foot segment of the property was zoned commercial, but the balance was zoned residential. While plaintiff obtained a permit covering the commercial property only, he excavated the entire parcel.

The defendant claimed that the work was done without securing a building permit as required by the Evanston building code and therefore the entire contract was void. The court found that because the plaintiff knew that a permit was necessary before doing the work he was precluded from enforcing a lien on the residential segment. However, the plaintiff was entitled to a lien for the work done on the commercial segment.

Bairstow is distinguishable from the present situation, however, because there the plaintiff knew he needed a permit for the residential segment, yet did not get one, whereas in the case sub judice, the plaintiff knew he needed a permit and got one, albeit under the Goulding name. More importantly, in Bairstow, the contract contemplated an illegal act (the excavation and erection of a commercial structure on residential property).

In another case cited by the defendants, Meissner v. Caravello (1955), 4 Ill. App. 2d 428, 124 N.E.2d 615, the defendants contended that the plaintiff’s failure to obtain a building permit before commencement of the improvement made the contract illegal and, therefore, the plaintiff could not enforce its mechanic’s lien. The court noted that

“[t]he contract itself contained no trace or suggestion of illegality. As stated by Williston in his work on Contracts [citation]: ‘In general, unless a bargain necessarily contemplates an illegal act, it is not unenforceable, and if it is later performed in a way that involves some slight violation of law, not seriously injurious to the public order, the person performing may recover on his bargain. This principle may be stated more broadly: “Where a bargain does not in terms necessarily involve a violation of law, the fact that plaintiff performs it in a way not allowed by law, does not preclude recovery, if not seriously injurious to the public order.” ’ There is similar language in 12 Am. Jur., Contracts, sec. 153, p. 647: ‘Accordingly, where a contract could have been performed in a legal manner as well as in an illegal manner, it will not be declared void because it may have been performed in an illegal manner, since bad motives are never to be imputed to any man where fair and honest intentions are sufficient to account for his conduct. The rule has been stated to be that if an agreement can by its terms be performed lawfully, it will be treated as legal, even if performed in an illegal manner ***.’ ” (Meissner, 4 Ill. App. 2d at 431-32.)

The court stated that the weight of authority holds that failure to obtain a building permit does not preclude recovery for work and materials furnished, and because the contract did not provide for or require the violation of any law, it was not illegal. (Meissner, 4 Ill. App. 2d at 432-34.) The court also noted that the building code does not prevent recovery if no permit is obtained, but does provide for penalties. Meissner, 4 Ill. App. 2d at 433.

In an attempt to distinguish Meissner, defendants note that there was nothing in the Meissner record to suggest that the plaintiff could not have obtained a permit, whereas sub judice the plaintiff could not have obtained a permit because it was not qualified to do so. Defendants’ distinction, however, is one without a difference. The gravamen of Bairstow and Meissner is not whether one contractor as opposed to another could obtain a permit, but whether the issuance of a permit to anyone would be illegal. The question to be asked is whether the bargain necessarily contemplated an illegal bargain, not whether an otherwise legal contract is performed in a manner which involves a violation of the law.

Contrary to defendants’ position is Lavine Construction Co. v. Johnson (1981), 101 Ill. App. 3d 817, 428 N.E.2d 1069. In Lavine, the plaintiff and defendant entered into a contract for building and electrical work. Defendant refused to sign a completion certificate. Plaintiff admitted that an electrical permit was not obtained. The defendant argued that the lack of a permit rendered the contract unenforceable. The trial court entered judgment for the contract price of $5,700. This was affirmed on appeal. The court stated that none of the provisions of the Code expressly prohibited the enforceability of contracts for failure to secure a required permit. (Lavine, 101 Ill. App. 3d at 819.) The court relied on the general rule stated in Meissner. This same principle was applied in South Center Plumbing & Heating Supply Co. v. Charles (1968), 90 Ill. App. 2d 15, 234 N.E.2d 358.

While Bairstow does stand for the proposition that a contract is not enforceable in a situation where there was no legal way for anyone to obtain a permit, such is not the case sub judice. Accordingly, we reject defendants’ contention and find the contract to be enforceable. Parenthetically, while it does not affect our decision, we note that, like plaintiff, the contractor the defendants subsequently hired to repair the alleged damage done by the plaintiff was not properly licensed by the City of Chicago.

Defendants next contend that the trial court failed to address the issue of substantial performance. Defendants claim that the contract was not substantially performed, that the trial court did not determine the issue of substantial performance, and without this determination the trial court’s decision is not understandable.

The court stated in Folk v. Central National Bank & Trust Co. (1991), 210 Ill. App. 3d 43, 46-47, 567 N.E.2d 1:

“As a general rule, although a mechanic’s lien claimant must show performance of the contract as a prerequisite to enforcement of the lien, substantial performance of the contract made in good faith will generally entitle the contractor to maintain his suit to enforce his lien. [Citation.] A contractor must prove that there was an honest and faithful performance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential elements of the contract. [Citation.] A contractor is not required to perform perfectly, but rather is held only to the duty of substantial performance in a workmanlike manner. [Citation.] What constitutes substantial performance is difficult to define, and whether substantial performance has been given will depend upon the relevant facts of each case. *** On appeal, the issue of whether there has been substantial performancé is a question of fact, and the trial court’s resolution of this question will not be disturbed unless it is against the manifest weight of the evidence.”

The manifest weight of the evidence is that which is the clearly evident, plain and indisputable weight of the evidence. (Duncan v. Cannon (1990), 204 Ill. App. 3d 160, 164, 561 N.E.2d 1147.) In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Duncan, 204 Ill. App. 3d at 164.

A party is entitled to recover for the work furnished under the contract, subject to any deductions by way of setoff for completing and correcting the work. (Royal Ornamental Iron, Inc. v. Devon Bank (1975), 32 Ill. App. 3d 101, 107, 336 N.E.2d 105.) The measure of damages is the difference between the total reasonable cost of securing performance and the contract price. Royal Ornamental Iron, Inc., 32 Ill. App. 3d at 108.

In the case sub judice, Poulos, the president of plaintiff, and Russell, owner of Goulding Electrical Construction, testified on behalf of the plaintiff. Guagliardo, the inspector for the City of Chicago, Cannataro, who owns electrical construction businesses, and Mikolajczyk, defendants’ expert who was a registered architect, registered professional engineer, and an architectural consultant, all testified for the defendants.

The city inspector testified that not all items listed in the violations letter sent to the defendants by the city had been completed at the time of his inspection, but that he approved the work as it was proceeding, the work was ongoing, and “[a]ll up to that point was done in accord with the Code and in a workmanlike manner.” The trial court further noted that defendants’ expert stated that 60% of the electrical work that was required under the contract was done in accord with the Code and the contract. Cannataro, the contractor who allegedly did renovating work in all fourth-floor apartments after the plaintiff left the job, could not specify as to the cost of what he did by way of repair or completion of the alleged defects. The trial court noted that the expert’s report and opinion regarding the violations of the fourth floor were “an unlikely appropriate basis for finding Plaintiff’s work on the 4th floor unworkmanlike or in violation of the Chicago Building Code since his inspection was made subsequent” to complete remodeling of that floor after plaintiff left the premises.

Similarly, the trial court noted in its written order that the city inspector

“made a number of inspections while Plaintiff’s work was in progress and did not find any Code violations and the fact that the building was not cited.for any violations from the time when Plaintiff stopped working until the time this case was being heard also dulls the impact of such assertion. On the other hand, Plaintiff’s admitted refusal to complete the work indicated there were ‘loose ends’ whether ‘minor’ as contended by Plaintiff’s attorney in his closing argument or major as the defense would have this Court believe does leave room for level-ling the charge of ‘work was not done in a workmanlike manner.’ ”

Defendant Kioutas contended it was plaintiff’s duty to clean up the premises, but admitted that she could not point out in the contract where this was stated. Mrs. Kioutas later admitted that part of her janitor’s job was to do the cleanup work. Mrs. Kioutas also admitted the building was never cited for any violations since plaintiff terminated his work on the premises in 1984.

Russell, president of Colliding, testified that everything in the contract was done except for a punch list. The trial court noted that the existence of a “punch list” indicated that not all was done according to the contract. As such, the plaintiff could not recover full and final payment because the contract stated that “(w)hen the job is completed TOTAL BALANCE IS TO BE PAID IN FULL AMOUNT OF $15,000.” Plaintiff admitted that he had been paid $33,000 of the $45,000 contract price. The trial court considered that plaintiff was entitled to any funds left after defendant subtracted from the $15,000 any charges paid to the contractor who finished the punch list items and any other defective work of the plaintiff.

The testimony presented showed that Cannataro’s estimate to correct deficiencies and finish the work was $2,750. Therefore, the plaintiff was entitled to $9,250 ($12,000 - $2,750 = $9,250). The trial court found that the evidence supported the defendants’ counterclaim only to the extent of $1,775. There were also payments made to repair damage and for other services. The defendants’ total expenditures amounted to $5,234.22. As such, the plaintiff was entitled to “$6765.68 [sic] ($12,000 - $5,234.22 = $6,765.78).

These findings of the trier of fact were detailed and specific. It was for the trial court to draw conclusions regarding the witnesses’ credibility, and the trial court apparently concluded that the evidence showed that the plaintiff had substantially performed under the contract. There is substantial evidence in the record to support the trial court’s findings. Accordingly, the judgment is not against the manifest weight of the evidence and will not be disturbed on appeal.

Because we conclude that the record supports the finding that plaintiff substantially completed the contract in a workmanlike manner, defendants’ contention that the trial court failed to address the issue of plaintiff’s negligence is without merit.

Also without merit is defendants’ contention that interest should not have been awarded under the facts of this case. The language of the mechanic’s liens statute is unambiguous and provides that a contractor shall have a lien for the amount due from the service, material and labor furnished “and interest from the date the same is due.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 82, par. 1.) It was upon this statute that the trial court awarded interest.

Defendants rely solely on Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 226 N.E.2d 270, a case dealing with former section 2 of the interest statute (Ill. Rev. Stat. 1965, ch. 74, par. 2), now included in banking and finance (Ill. Rev. Stat. 1991, ch. 17, par. 6402), which provides for interest “on money withheld by an unreasonable and vexatious delay of payment.” The Watson Lumber court, in reversing the trial court’s award of interest, held that because the dispute was substantial and in good faith, the delay in payment was not unreasonable or vexatious.

Because the trial court’s award of interest sub judice was based upon the mechanic’s lien statute (Ill. Rev. Stat. 1983, ch. 82, par.1), Watson Lumber has no application. Nor do defendants set forth any reason why the mechanic’s lien statute does not apply. For all of the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA, P.J., and GIANNIS, J., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLYLE BRADEN, Defendant-Appellant.
    Second District
    No. 2—91—1138
    Opinion filed April 2, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Joseph Michael Williams, of St. Charles, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Raymond L. Beck, of Chicago (William L. Browers, Lisa A. Hoffman and John X. Breslin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Carlyle Braden, appeals from the order of the circuit court of Lake County ordering the forfeiture and transfer of certain weapons pursuant to section 24 — 6 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 6). This forfeiture statute provides for the confiscation and disposition of weapons upon conviction of an offense in which a weapon was used or possessed by the offender.

We reverse and remand with directions.

Pursuant to a negotiated plea and in exchange for a sentence of nine years’ imprisonment, on December 14, 1990, defendant pleaded guilty to the unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1989, ch. bO1^, par. 1401(b)), count II of a three-count indictment. The other two counts were nol-prossed: unlawful delivery of a controlled substance (count I) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(b)(2)) and unlawful possession of a firearm without a firearm owner’s identification (FOID) card premised on defendant’s possession of a single shotgun (count III) (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 2).

The record shows that, on or about June 1, 1990, Martin Zamudio, who was working in an undercover capacity with the Illinois State Police, went to the home of defendant in Lake Villa, Lake County, Illinois, and purchased what was later determined to be seven grams of cocaine. Also on or about June 1, 1990, while executing a search warrant at defendant’s house, the State Police discovered and seized five rifles and two shotguns which defendant alleges are part of his family’s collection of heirlooms.

On December 14, 1990, after defendant was admonished and after the factual basis for the plea was heard, defendant’s guilty plea on the drug charge was accepted, and judgment was entered thereon. Defendant waived the presentence investigation, and the circuit court of Lake County sentenced him to nine years’ imprisonment; the sentence was to run concurrently with a sentence imposed in a McHenry County case.

On July 30, 1991, the State filed a notice and an attached order for the transfer to the McCollum Lake police department of five rifles and two shotguns described in the order and then in the possession of the Illinois State Police. The State’s notice, dated July 18, 1991, stated that it would appear on July 30, 1991, to file the order for the transfer of weapons and to set a date certain for a hearing. The notice was addressed to Randy Franklin in Chicago, Illinois, who was defendant’s attorney of record during the prior criminal proceedings several months earlier. The notice contains a statement that it was sent on July 18, 1991, but there is no proof of service or mailing.

On July 30, 1991, in what appears to be an ex parte proceeding, the trial court entered the transfer order with a notation that the order be stayed for a period of 30 days. The minute entry for that date states that the assistant State’s Attorney was present and the State was given leave to file the order for the transfer of weapons and the order was entered. The entry notes that the defendant remained in the custody of the Department of Corrections. There is no report of proceedings listed for that date.

Defendant pro se mailed from Lincoln Correctional Center a motion to vacate the transfer order; the motion was filed on August 26, 1991. In his motion, he claimed the transfer order was wrongfully entered on July 30, and he requested that the weapons be returned to him or his agent upon production of proof of ownership and a proper identification (FOID) card. The motion was supported by an affidavit in which defendant stated, among other things, that he had not seen the proposed order prior to its entry; that the assistant State’s Attorney stated that the order was pursuant to section 24 — 6 of the Code; that defendant was convicted of a drug offense and that the weapons were removed from his house at a later date and not in his presence and the weapons were not involved in the commission of the crime; that, at sentencing, the assistant State’s Attorney stated that the weapons would be returned and had subsequently changed his position; that the weapons were owned by defendant and his family, had been passed from generation to generation, and had sentimental value; and that defendant could not afford legal counsel.

Defendant also appended a portion of a December 13, 1990, transcript in the McHenry County proceeding, in which defense counsel moved for the return of some weapons to defendant’s ex-wife. The assistant State’s Attorney stated that the weapons would be returned if someone could establish ownership and present a FOID card. The minute entry for August 27, 1991, shows that the cause was continued to August 30 for the State to file a response to defendant’s motion and to set a hearing date; defendant remained in the custody of the Department of Corrections.

On August 30, 1991, the Lake County State’s Attorney filed the State’s response to defendant’s objection to the entry of the order of transfer of the weapons. The response averred that, on or about June 1, 1990, there was a search of the defendant’s premises in Lake Villa, Lake County, where the weapons were seized; that defendant was not in possession of a FOID card; that pursuant to section 24 — 6 the court had the discretion to transfer the weapons to the McCollum Lake police department; that the McHenry County State’s Attorney’s office erroneously agreed to return the weapons to defendant as part of a plea negotiation in an unrelated McHenry County criminal case; that there was no agreement between the prosecuting agencies of Lake and McHenry Counties authorizing this condition of the McHenry County negotiation; and the State prayed for an order of transfer of the weapons.

Appended as an exhibit to the State’s response was the transcript of a Lake County grand jury proceeding of October 24, 1990, in which Martin Zamudio of the Illinois State Police testified concerning the drug transaction. Based on what appears to be hearsay, Zamudio stated that he himself did not discover the weapons, but, pursuant to a search warrant, another team discovered some weapons at defendant’s house and Zamudio ascertained that defendant did not have a FOID card “present to go with those weapons.” There was little foundation for the statement.

At the Lake County proceeding on August 30, 1991, the State noted that defendant was not present but was in the custody of the Department of Corrections and that the matter came on for status regarding defendant’s motion; the State sought leave to file its response. In response, the court made the following ruling:

“The Court will rule that it appears from the evidence before it that pursuant to 24 — 6(a) that the weapon was present at the time of the possession of the drugs and as such the weapon seized can be confiscated. Consequently, I will deny the respondent’s motion, Mr. Braden.”

The assistant State’s Attorney then asked if the order transferring “the weapon” was entered. The court responded that the order had been entered and was stayed 30 days; the order was no longer stayed and transfer could take place.

From Lincoln, Illinois, on October 1, 1991, defendant pro se mailed a late notice of appeal from the forfeiture order. The notice was filed on October 4, and the trial court appointed the State Appellate Defender as counsel on appeal on October 7. Appellate counsel moved to file a late notice of appeal (134 Ill. 2d R 606(c)), in part on the ground that defendant was denied due process of law as a result of the trial court’s failure to conduct an evidentiary hearing regarding the disputed confiscation of the weapons. This court allowed defendant’s motion to file his late notice of appeal on January 6,1992.

On appeal, defendant first argues that the trial court erred in denying his motion to vacate and in ruling on August 30, 1991, that the weapons should be forfeited as the court’s ruling was legally incorrect with respect to section 24 — 6 of the Criminal Code. Alternatively, defendant argues that the court’s order was against the manifest weight of the evidence and was entered ex parte in the absence of the defendant and without the benefit of an evidentiary hearing. Otherwise stated, the thrust of defendant’s arguments is that: (1) the proceeding was legally insufficient, and (2) the evidence was insufficient to support an order of forfeiture on the basis that the weapons were either contraband per se or derivative contraband arising from the use or possession of a weapon during the commission of a crime.

The State replies that the order is supported by the record, but candidly argues, alternatively, that, if the evidence is deemed unsatisfactory, the State should be allowed to prove its case on remand. The State acknowledges that the matter was up for “status” and that, before it could present its case, the judge “somehow determined that the weapons were subject to forfeiture as derivative contraband.” To its credit, the State appears to concede that there were deficiencies in the proceedings below. We first consider the legal sufficiency of the proceedings below.

Section 24 — 6 of the Criminal Code provides in pertinent part:

“(a) Upon conviction of an offense in which a weapon was used or possessed by the offender, any weapon seized shall be confiscated by the trial court.
(b) *** After the disposition of a criminal case and when a confiscated weapon is no longer needed for evidentiary purposes, and when in due course no legitimate claim has been made for such weapon, the court may transfer such weapon to the sheriff of the county who shall proceed to destroy it, or may in its discretion order such weapon preserved as property of the governmental body whose police agency seized the weapon ***.” Ill. Rev. Stat. 1989, ch. 38, pars. 24 — 6(a), (b).

A forfeiture proceeding, such as one pursuant to section 24 — 6 of the Criminal Code, is in rem (People v. Ziomek (1989), 179 Ill. App. 3d 303, 306) and is technically civil in form, but it may also be described as quasi-criminal where its objective is to penalize unlawful activity. (People v. Earl (1984), 121 Ill. App. 3d 254, 257, citing People v. Mudd (1977), 54 Ill. App. 3d 603, 606.) The issue in such a proceeding is the contraband nature of the forfeitable property. (See In re Twenty-Seven Thousand Four Hundred Forty Dollars (1987), 164 Ill. App. 3d 44, 46.) The State must prove its right to the contraband property by the civil standard of a preponderance of the evidence, and on review the trial court’s decision will be overturned if it is contrary to the manifest weight of the evidence. (People v. LeShoure (1986), 143 Ill. App. 3d 839, 844.) Forfeitures of property are not favored in the law, and statutes authorizing forfeitures must be strictly construed. (Earl, 121 Ill. App. 3d at 257.) Whether property is contraband and subject to confiscation depends on the nature of its use at the time of seizure. People v. Moore (1951), 410 Ill. 241, 252.

The United States and the Illinois Constitutions preclude the government from asserting summary authority over the property of any persons, and any deprivation of property must be in accordance with due process of law. (See People v. Hermann (1986), 150 Ill. App. 3d 224, 229-30.) As a minimum, procedural due process requires notice, an opportunity to respond and a meaningful opportunity to be heard. Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 42; see G.M. Sloan Mosaic & Tile Co. v. Newman/Lustig & Associates (1990), 199 Ill. App. 3d 518, 522 (trial court could not sua sponte impose sanctions where party was not accorded procedural due process and had no meaningful opportunity to defend); Heimberger v. Village of Chebanse (1984), 124 Ill. App. 3d 310, 316 (due process requires notice and opportunity for hearing appropriate to nature of the case prior to deprivation unless extraordinary circumstances require immediate action to protect valid governmental interests).

In an in rem forfeiture proceeding, a fundamental due process requirement is that notice be given which is reasonably calculated, under all the circumstances, to apprise the interested parties, including prisoners, of the pendency of the action and to afford them an opportunity to present their objections. (Robinson v. Hanrahan (1972), 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30, rev’g People ex rel. Hanrahan v. One 1965 Oldsmobile (1972), 52 Ill. 2d 37; see also LeShoure, 143 Ill. App. 3d at 843-44, 848 (forfeiture proceeding implicates minimum due process requirements).) Under appropriate circumstances, a judgment in the nature of a default judgment may be deemed plainly infirm as a violation of due process when it is entered where there is no realistic opportunity for a party to appear in court and protect his interest in his property by presenting a meritorious defense. Williams, 139 Ill. 2d at 48.

In the case at bar, the forfeiture order of July 30, 1991, was entered ex parte and apparently without sufficient notice to afford defendant a reasonable opportunity to respond to the State’s motion and to contest the proceeding. The record does not show that defendant or the attorney who had represented him some months before ever received actual notice of the proceeding. The State’s original notice of motion merely sought to file the proposed order and to obtain a date certain for a hearing. The State presented no factual allegations to support the entry of that order, yet the court entered a forfeiture order apparently without an evidentiary hearing, but stayed the order for 30 days. When defendant somehow learned of the order, he contested the factual and legal bases for its entry both in his motion and in his supporting affidavit.

Nevertheless, on August 30, at a status hearing, instead of permitting the State merely to file its response to defendant’s motion and set a hearing date as the court had indicated it would do in its minute order entry of August 27, the court, again in the absence of defendant or his counsel, proceeded to rule on the merits of the cause without even permitting the State to present its case. The court concluded, on the basis of unproved and unchallenged allegations of fact in the record, that the “weapon” (singular) was derivative contraband under section 24 — 6 of the Code because it was “present” at the time of the drug transaction and could therefore be confiscated. It is clear to us that the court had before it no competent evidence to make this factual finding, and we cannot condone such a summary procedure. See People v. Steskal (1973), 55 Ill. 2d 157,160.

The record is simply too incomplete to show that the weapons were derivative contraband stemming from the commission of a crime merely because defendant pleaded guilty and was convicted of a drug offense. There is no evidence tying the drug offense to the presence of weapons during the drug transaction. The weapon charge was nolprossed. The search appears to have been executed at a different time after the drug offense, and neither the ownership of the weapons nor the availability of a FOID card has been clearly established. The State was required to prove its claim by a preponderance of the evidence. Additionally, it appears that the State changed the position it adopted in obtaining a negotiated plea and had assured defendant that the weapons would be returned to a family member upon a sufficient showing of ownership and a FOID card. Under these circumstances, the defendant was entitled to an evidentiary hearing on the merits. See City of Chicago v. Pudlo (1983), 123 Ill. App. 3d 337, 345.

In the absence of a sufficient notice to defendant and a meaningful opportunity for him to contest the State’s action and in view of the court’s sua sponte ruling made ex parte and without sufficient evidence, we deem this proceeding legally deficient as a violation of due process. The court’s order of July 30 is constitutionally infirm and must be reversed and the cause remanded for further proceedings which comport with procedural due process. In so doing, we make no determination upon the merits of the case. The State must be required to prove its case by a preponderance of the evidence, and defendant must be afforded an evidentiary hearing in which he may contest the State’s claim.

We observe that, as far as the State and the defendant are concerned, such a forfeiture proceeding has been treated as a continuation of the prosecution of the criminal case. (People v. LeShoure, 143 Ill. App. 3d at 842.) Although defendant argues that he must be personally present at the hearing, he fails to cite sufficient relevant authority for this argument for us to consider it, and we will not issue an advisory opinion on this subject. Under the circumstances, however, where defendant was incarcerated and unrepresented by counsel during the forfeiture proceeding, we believe that, on remand, he should be allowed to raise this issue in the trial court as well as whether he is entitled to the appointment of counsel.

•4 Because the issue of the nature of the contraband has been raised and fully briefed by both parties and because this issue is likely to resurface on remand, we will address this issue. There are two categories of contraband. Contraband per se consists of those items whose possession alone constitutes a criminal offense, and such articles need not be returned even if improperly seized. Derivative contraband consists of articles not inherently illegal but used in an unlawful manner. (People v. Steskal (1973), 55 Ill. 2d 157, 159.) Designation of an item as contraband per se means that the mere possession of the item alone constitutes the crime; it denotes an express public policy against the existence of the object, such as a sawed-off shotgun or counterfeit money, because the thing itself is repugnant to the State. (People v. Mudd (1977), 54 Ill. App. 3d 603, 604.) Money itself, for example, is not contraband unless it is declared so because of its unlawful use. Unless an article is contraband per se, it must have a rational relationship or nexus to an unlawful purpose before it can be subject to forfeiture. In re Fifty-Three Thousand Two Hundred Sixty Three Dollars (1987), 159 Ill. App. 3d 114, 118.

Thus, where a defendant commits a crime in which a gun is used or possessed, the gun may be treated as derivative contraband under section 26 — 4 of the Criminal Code, but the weapon must be sufficiently closely related to the commission of the offense to be deemed derivative contraband subject to confiscation. (LeShoure, 143 Ill. App. 3d at 845.) In LeShoure, firearms taken from defendant’s house after defendant was arrested on drug charges for which he was later convicted were deemed not to be contraband per se even though as a convicted felon he could not lawfully possess them. Defendant was allowed to convey his interest in the weapons to someone who could lawfully possess them. (LeShoure, 143 Ill. App. 3d at 845; accord People v. Gant (1986), 150 Ill. App. 3d 180, 191 (where guns not contraband per se, if defendant was not eligible to possess the weapons, they should be turned over to designee of defendant who is eligible to possess them).) The LeShoure court relied on Earl, which treated guns as contraband per se, derivative contraband, or neither, depending on the circumstances. Earl, 121 Ill. App. 3d at 258.

In Mudd (54 Ill. App. 3d 603), defendant was arrested and charged with the illegal use of a weapon. A jury acquitted him of the charge. The trial court denied the defendant’s motion for the return of his gun, and, although the State stipulated that the gun was not contraband per se, the trial court ordered the gun confiscated and destroyed. Relying on Steskal (55 Ill. 2d 157), the reviewing court concluded that a gun which is not contraband per se, where there is no contest over ownership, can be ordered confiscated and destroyed only after there has been a criminal conviction under the charges pursuant to section 24 — 6 of the Criminal Code. Because the State did not claim that the gun was contraband per se, the trial court’s decision was reversed. Mudd, 54 Ill. App. 3d at 607; see In re Fifty-Three Thousand Two Hundred Sixty Three Dollars, 159 Ill. App. 3d at 119.

Also relying on Steskal, the Mudd court warned of the potential danger in allowing the forfeitures of property without a conviction where the State could conduct improper searches and seizures with the knowledge that, even though a criminal prosecution would be futile, the forfeiture proceeding would partially accomplish the same effect. Mudd, 54 Ill. App. 3d at 606.

In Earl, the defendant was charged with the unlawful use of weapons, several traffic offenses, and resisting a peace officer. A jury acquitted him of all charges except the unlawful use of a weapon. The gun on which the offense was premised was an automatic pistol located in the defendant’s car on the floor near the driver’s seat. When the trunk of the car was later searched, some ammunition and 10 other firearms were discovered and seized. The automatic pistol was found to be clearly within the definition of derivative contraband where defendant used or possessed it in connection with illegal activity. However, it was also determined that the pistol was stolen and was returnable to its owner, who was not convicted of a crime. Additionally, two other firearms seized from the trunk of the car were found to be the property of third persons. The remaining guns were property of the defendant and returnable to him since they were neither contraband per se nor derivative contraband because they were not immediately accessible to the defendant at the time of the offense.

The Earl court rejected the State’s argument that, even though these weapons were not contraband per se, the definition of derivative contraband should include every weapon seized from a defendant who is later convicted of any weapon-related offense. Voicing constitutional concerns, the Earl court concluded that the legislature did not intend such a far-reaching result where innocently possessed, noncontraband items would be seized merely because defendant was convicted of a weapon-related offense.

In People v. Wynn (1981), 98 Ill. App. 3d 567, defendant produced only an expired FOID card when the police went to his home to investigate a domestic disturbance and defendant’s wife showed them his gun. The trial court stated it was not making a finding of guilt and only placed defendant on supervision. When defendant challenged the confiscation of his weapon on appeal, the reviewing court determined that a gun is not contraband per se and because defendant was not convicted, the order of confiscation could not stand.

In the present appeal, citing People v. Ziomek (1989), 179 Ill. App. 3d 303, the State argues that we should deem defendant’s guns contraband per se merely because defendant was charged with possessing the weapons (plural) without a FOID card. In Ziomek, the reviewing court classified as contraband per se weapons unregistered contrary to Chicago city ordinances. After a hearing, the trial court had ordered the weapons (except for an Uzi 9 mm weapon) returned to defendant outside the city limits; the court had granted defendant’s motion to quash his arrest and suppress evidence. On appeal the State maintained that, at the time of the seizure, defendant was in violation of the city ordinances and that mere possession by defendant constituted the offense. The reviewing court agreed that the unregistered weapons were contraband per se because they resemble other contraband per se items such as counterfeit money and illegal narcotics. The court believed that the inherent nature of the unregistered weapons made them contraband per se.

While we abhor the unlawful use of weapons, we decline to go as far as Ziomek, particularly on the facts of this case. First, as can be seen in our review of LeShoure, Earl, Mudd, and Wynn, the weight of Illinois authority does not treat all guns as contraband per se without more. The classification depends on the circumstances. Rather, the guns must have some close connection to illegal activity before they will be deemed contraband, that is, derivative contraband; or the guns must be incapable of lawful ownership thus making them contraband per se (such as a sawed-off shotgun). The guns in the present case do not appear to be inherently contraband per se because extrinsic proof is necessary to show that they have been used or possessed unlawfully. In Ziomek, it appears that there was a hearing in which the necessary facts were considered. The major weakness of the Ziomek per se rule becomes evident when we attempt to apply it: there must be some additional factual showing that the guns were unlawfully possessed other than mere possession alone in order to make the contraband per se finding. Unlike a sawed-off shotgun or counterfeit money, which can be determined from their inherent physical characteristics to be contraband per se and where the items can never be legally owned by the ordinary citizen, the guns here could have lawfully belonged to defendant or his family if proof of ownership and a valid FOID card had been produced. The State even indicated a willingness to return the weapons upon satisfactory evidence that they could lawfully be possessed.

The lack of a sufficient evidentiary hearing makes it impossible to determine with any certainty whether the guns were contraband — derivative or otherwise. Additionally, the State never expressly argued below that the guns were contraband per se, but merely alleged that no FOID card or proof of ownership had been presented. The possession of a weapon coupled with the lack of a valid FOID card may constitute a crime, but the State has not proved such facts, and defendant was never convicted of such a crime. If the crime is the drug transaction, the guns may be deemed derivative contraband if the requisite sufficient nexus between the presence of the weapons and the crime can be established. The State should not be allowed to make a claim of contraband per se for the first time on appeal.

For the foregoing reasons, the forfeiture order of the circuit court of July 30, 1991, and its subsequent order of August 30, 1991, denying defendant’s motion are reversed. The cause is remanded for further proceedings consistent with the views expressed herein. If the weapons are not deemed contraband, then, upon the satisfactory presentation of evidence, the court should consider whether the weapons may be transferred to any other person who can lawfully possess them. See People v. Gant, 150 Ill. App. 3d at 191; People v. LeShoure, 143 Ill. App. 3d at 845.

The order of the circuit court of Lake County is reversed, and the cause is remanded with directions.

Reversed and remanded with directions.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE DOYLE

text:
    SARAH SHEFNER et al., Plaintiffs-Appellants, v. ILLINOIS FARMERS INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—92—0461
    Opinion filed April 8, 1993.

      Patrick A. Salvi and Megan E. Chadwick, both of Law Offices of Patrick A. Salvi, of Waukegan, for appellants.
    Glen E. Amundsen, of Querrey & Harrow, Ltd., of Waukegan, and Michael Resis and Mary T. Nagel, both of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, Sarah Shefner and Mark Brodie, appeal from a judgment declaring Sarah Shefner’s rights to uninsured motorist coverage under two automobile insurance policies issued by defendant, Illinois Farmers Insurance Company. The trial court held that Shefner was entitled to coverage under the policy issued for the car in which she was riding at the time of her collision with a vehicle driven by an uninsured motorist, but that she was not entitled to coverage under a second policy insuring another car plaintiffs own. On appeal, plaintiffs argue that Shefner is entitled to collect under the second policy either in addition to or alternatively to the first policy.

Shefner was injured when the 1987 Buick Skylark in which she and Brodie, her husband, "were riding collided with a motorcycle driven by an uninsured motorist, James Staton, and owned by another uninsured motorist, John Sistrunk. Plaintiffs sought a declaration of Shefner’s rights under (1) the policy insuring the 1987 Buick Skylark (the Skylark policy) and (2) the policy insuring plaintiffs’ 1990 Chevrolet Corsica (the Corsica policy). The trial court held that Shefner is entitled to up to $50,000 uninsured motorist coverage under the Skylark policy but that she is not entitled to any uninsured motorist coverage under the Corsica policy.

On appeal, plaintiffs maintain that Shefner is entitled to collect uninsured motorist coverage (limited to $100,000) under the Corsica policy either in addition to or as an alternative to the uninsured motorist coverage (limited to $50,000) which defendant concedes she may collect under the Skylark policy. We disagree, and we affirm the trial court’s judgment.

Most of the relevant facts are undisputed. The parties disagree primarily over the meaning of policy provisions. Brodie purchased the Skylark policy; Shefner purchased the Corsica policy. Each policy insures both plaintiffs. Each policy costs a separate premium. The policies have identical “uninsured motorist” clauses and identical “other insurance” clauses. Each policy states:

“DEFINITIONS

Your insured car means:

1. The vehicle described in the Declarations of this policy or any private passenger car or utility car with which you replace it.

2. Any additional private passenger car or utility car of which you acquire ownership during the policy period. Provided that:

a. You notify us within 30 days of its acquisition, and

b. As of the date of acquisition, all private passenger and utility cars you own are insured with a member company of the Farmers Insurance Group of Companies.

* * *

PART II — UNINSURED MOTORIST

Coverage C — Uninsured Motorist Coverage (Including Underinsured Motorist Coverage)

We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.

* * *

Other Insurance

* * *

4. We will not provide insurance for a vehicle other than your insured car, unless the owner of that vehicle has no other insurance applicable to this part.

5. If any applicable insurance other than this policy is issued to you by us or any other member company of the Farmers Insurance Group of Companies, the total amount payable among all such policies shall not exceed the limits provided by the single policy with the highest limits of liability.”

The trial court granted summary judgment for defendant. The court held that the unambiguous language of the policies entitled plaintiffs only to the uninsured motorist coverage provided by the Skylark policy. Plaintiffs timely appealed.

The parties agree that Shefner is entitled to uninsured motorist coverage under the Skylark policy, as she was an insured party under that policy and was riding in the Skylark at the time of the accident. Plaintiffs argue further that the Corsica policy also applies to the accident even though Shefner was not using the Corsica at the time. Plaintiffs argue that to deny Shefner coverage under both policies would violate section 143a(2) of the Illinois Insurance Code (section 143a(2)) (Ill. Rev. Stat. 1989, ch. 73, par. 755a(2)), which establishes a minimum level of uninsured motorist coverage to which a policyholder is entitled. Defendant replies that the plain language of paragraph No. 4 limits recovery trader the Corsica policy to accidents involving the Corsica. Defendant maintains that this limitation does not violate public policy, as the Skylark policy provides Shefner with coverage above the statutory minimum. Defendant insists that the coverages of the policies “follow the vehicle” and do not “follow the person.”

We begin with general principles. The construction of insurance policies is a question of law that this court determines de novo. (Armstrong v. State Farm Mutual Automobile Insurance Co. (1992), 229 Ill. App. 3d 971, 975.) Our overriding purpose is to ascertain and effectuate the intention of the parties. (Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 16; Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102, 106.) Where policy language is unambiguous, we must glean the parties’ intent directly from that language, without resort to rules of construction, unless to do so would violate public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423; Bruder v. Country Mutual Insurance Co. (1992), 232 Ill. App. 3d 221, 224.) A court should give words in the policy their plain and ordinary meaning and should not search for an ambiguity where none exists. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5.) However, ambiguities must be construed in favor of the insured. (Menke, 78 Ill. 2d at 423.) A provision is ambiguous if it can reasonably be read to have more than one meaning. (Milwaukee Guardian Insurance, Inc. v. Taraska (1992), 236 Ill. App. 3d 973, 974.) In determining whether a policy is ambiguous in a certain regard, a court should consider the policy as a whole. Great Central Insurance Co. v. Wascomat of America (1992), 234 Ill. App. 3d 150, 153-54.

Plaintiffs make three attacks on the trial court’s judgment. First, they argue that paragraph No. 5 of the policies does not prevent plaintiffs from electing the $100,000 uninsured motorist coverage of the Corsica policy over the $50,000 uninsured motorist coverage of the Skylark policy. Second, plaintiffs argue that section 143a(2), as interpreted by Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, prevents defendant from limiting Shefner’s recovery to that provided by the Skylark policy. Third, plaintiffs argue that Shefner is entitled both to uninsured motorist benefits under the Skylark policy and to underinsured motorist coverage under the Corsica policy.

Plaintiffs’ first argument is valid but inconclusive. Paragraph No. 5 limits plaintiffs’ recovery to the highest amount provided by any applicable insurance policies defendant issued plaintiffs. Thus, if both policies apply to the accident, plaintiffs may elect the $100,000 coverage of the Corsica policy. Plaintiffs’ argument begs the question central to this case — whether the Corsica policy is “applicable” here. The issue is not whether plaintiffs may stack two applicable policies, but whether both policies are applicable. To answer this question, we must consider both the policy language and the requirements of section 143a(2).

The plain language of paragraph No. 4 is that the Corsica policy does not apply to this accident because plaintiff was not riding in the Corsica at the time of the accident. Paragraph No. 4 of the Corsica policy states straightforwardly that defendant will not pay uninsured motorist coverage for a vehicle “other than your insured car” unless the owner of that other vehicle has no other uninsured motorist coverage. Under the facts of this case, the Skylark is a vehicle “other than your insured car” under the Corsica policy. The qualification at the end of paragraph No. 4 does not help plaintiffs, as the owner of the Skylark has uninsured motorist coverage under the Skylark policy (as defendant has always conceded).

Plaintiffs argue, however, that we ought not read paragraph No. 4 of the Corsica policy literally. They maintain that under section 143a(2) and Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, paragraph No. 4 does not deny Shefner uninsured motorist coverage under the Corsica policy merely because she was not riding in that car when she was injured. Defendant replies that here, unlike in Squire, the exclusion at issue does not violate public policy because, even with full effect given to paragraph No. 4, Shefner would still be able to collect uninsured motorist coverage (under the Skylark policy) in excess of the minimum set forth in section 143a(2).

Section 143a(2) provides, as pertinent here:

“No policy [of automobile insurance] *** shall be *** issued for delivery in this State with respect to any private passenger or recreational motor vehicle that is designed for use on public highways and that is either required to be registered in this State *** and is not covered by collision insurance under the provisions of such policy, unless coverage is made available in the amount of the actual cash value of the motor vehicle described in the policy or $15,000 whichever is less *** for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of property damage to the motor vehicle described in the policy.” Ill. Rev. Stat. 1991, ch. 73, par. 755a(2).

The purpose of this provision is to place the insured in substantially the same position as if the uninsured driver had been minimally insured. (Hoglund v. State Farm, Mutual Automobile Insurance Co. (1992), 148 Ill. 2d 272, 277; Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 555.) Here, plaintiffs are in no worse position than had the uninsured driver been minimally insured. Defendant concededly will pay Shefner $50,000, which exceeds the minimum sum of $15,000 specified by section 143a(2). Moreover, the exclusion of paragraph No. 4 is conditional; it does not operate unless the insured already has uninsured motorist coverage. Thus, by its terms, paragraph No. 4 of the Corsica policy does not necessarily prevent a person insured by that policy from being placed in the position she would be in had the uninsured motorist been minimally insured. At least as long as the preexisting coverage equals or exceeds the statutory minimum, there is no conflict between the Corsica policy and section 143a(2). See Nationwide Mutual Insurance Co. v. Hecker (1989), 183 Ill. App. 3d 13, 16.

Plaintiffs insist that we read Squire broadly to hold that an insurer may never condition recovery of uninsured motorist payments on what car the insured was driving at the time of the injury. We believe that such a broad reading of Squire cannot be sustained if the language upon which plaintiffs rely is taken in proper context.

In Squire, the plaintiff, a minor, was insured under a single policy and a subsequent endorsement to that policy. She was injured when an uninsured motorist caused another car to strike her as she was standing on a parkway. The primary policy contained “Family Protection,” for which a $4 premium had been paid. This protection included uninsured motorist coverage, with limits of $10,000 per person injured. However, the policy contained an exclusion for “bodily injury to an insured while occupying an automobile (other than an insured automobile [one described in the policy and afforded coverage therein]) owned by the named insured or a relative.” The endorsement, for which a separate $1 premium was paid, provided coverage for a second family automobile. It contained a similar exclusion.

The plaintiff argued that she was entitled to stack uninsured motorist coverage under both policies. The defendant responded that the purpose of the endorsement was to protect against an accident caused by an uninsured motorist that the plaintiff or family members suffered while she was (or they were) riding in the second automobile. The defendant argued that the purpose of the endorsement, in consideration of which the second premium had been paid, was to enable the insured to collect the coverage that was excluded by the original policy’s exclusion provision.

The supreme court rejected the defendant’s argument, holding that this argument’s premise was invalidated by section 143a(l). The court held that the exclusion in the original policy was invalid because, if upheld, this exclusion would have meant that the first policy did not provide any uninsured motorist coverage to the plaintiff. Such a denial would violate the statutory requirement that every automobile liability insurance policy issued in the State provide uninsured motorist coverage at a minimum of $10,000 per each person injured up to $20,000 per accident. (Squire, 69 Ill. 2d at 176-78.) Thus, the defendant’s construction of the endorsement was unsound because it implied that there was no consideration for the $1 plaintiff’s family paid for the endorsement, i.e., if the insureds were already covered under the original policy, they would have gained nothing by paying an extra $1 premium for the endorsement. The defendant’s argument — that the consideration for the second premium was to enable the insureds to collect for damages excluded by the original policy— could not hold water if the exclusion in the original policy was invalid.

Because the exclusion in the original policy was invalid, the coverage allegedly provided in return for the extra premium paid for the endorsement had already been provided by the original policy. Reasoning that plaintiff’s family “[cjertainly *** had no intention of paying the defendant for coverage which they were already receiving” (Squire, 69 Ill. 2d at 180), the supreme court concluded that the intention of the parties in agreeing to the endorsement was to provide additional indemnification for injuries resulting from risks covered by the original policy. Thus, the plaintiff could recover under both the original policy and the endorsement. Squire, 69 Ill. 2d at 180-81.

In arguing that Squire prevents the defendant from denying her recovery under the Corsica policy, plaintiff Shefner emphasizes this specific language from the court’s opinion:

“[Sjection 143a requires coverage of insured persons regardless of the motor vehicle the uninsured motorist is driving, and regardless of the vehicle in which the insured person is located when injured. Insofar as the exclusion contained in the [original policy] would make coverage dependent upon the insured not being in a vehicle unlisted in the policy, that exclusion violates section 143a [and is unenforceable].” Squire, 69 Ill. 2d at 179.

We do not believe that Squire invalidates the exclusion in paragraph No. 4 of either policy in the case at bar. Unlike the primary policy in Squire, the Skylark policy does not, when read literally, deprive the plaintiff of uninsured motorist coverage merely because of the car in which she rode at the time of her injury. As defendant concedes, plaintiff Shefner is entitled to up to $50,000 uninsured motorist coverage under the Skylark policy.

Moreover, paragraph No. 4 is phrased so that the insured may never be denied uninsured motorist coverage solely because the car in which he or she was riding at the time of the accident is not the one covered by the policy. Paragraph No. 4 of the Skylark policy enables an insured not injured while riding in the Skylark to collect uninsured motorist coverage in an amount over the statutory minimum if the insured otherwise would be ineligible for such coverage. This safety net distinguishes the exclusion of paragraph No. 4 from that at issue in Squire. The same may be said of paragraph No. 4 of the Corsica policy.

However, even having concluded that paragraph No. 4 does not violate public policy, we must determine what the parties intended when plaintiffs purchased the Corsica policy. In making this determination, “[w]e cannot ignore that a premium was paid for [the additional] uninsured motorist protection.” (Hoglund, 148 Ill. 2d at 278.) Courts presume that the parties to a contract of insurance intended that the purchasers would receive something of value in return for their premium and not merely coverage that they would already have received. Hoglund, 148 Ill. 2d at 278; Monsalud, 210 Ill. App. 3d at 106.

Defendant argues that plaintiffs received valuable consideration for the price they paid for the Corsica policy. It maintains that the Corsica policy enables plaintiffs to recover damages for any injuries either may sustain while riding in the Corsica. The force of this argument is not entirely clear. Had plaintiffs never insured the Corsica, paragraph No. 4 of the Skylark policy would still have enabled them to collect uninsured motorist coverage under the Skylark policy for an accident involving the Corsica. Thus, in this limited sense, the premium paid for the Corsica policy might be seen as redundant.

However, we do not believe that application of the “premium rule” (Monsalud, 210 Ill. App. 3d at 106) requires us to hold that plaintiffs are entitled to coverage under the Corsica policy in this case. Granting that plaintiffs would recover damages against an uninsured motorist even had they not purchased the Corsica policy, we cannot say they received no extra value for their purchase. The Corsica policy, like the Skylark policy, includes other types of coverage besides uninsured motorist coverage. Also, it enables plaintiffs to recover uninsured motorist coverage up to $100,000, rather than $50,000, for accidents involving the Corsica. Thus we decline to read an ambiguity into otherwise clear policy language.

Plaintiffs’ final argument is that Shefner is entitled to recover uninsured motorist coverage under the Skylark policy and underinsured motorist coverage under the Corsica policy, for a total recovery of as much as $150,000. Apparently, plaintiffs reason that if the Skylark policy does not fully compensate Shefner for her losses, she is thus “underinsured” and thereby entitled to the underinsured motorist coverage of the Corsica policy.

This argument is frivolous. “Underinsured motorist coverage” comes into play only if the offending motorist is “underinsured” as that term is used in the Insurance Code. (See Ill. Rev. Stat. 1991, ch. 73, par. 755a — 2(4).) “Underinsured motorist” does not denote a policyholder who is dissatisfied with the amount of applicable coverage. Plaintiffs have maintained throughout that the accident at issue was caused by an uninsured motorist driving an uninsured vehicle. Under-insured motorist coverage is irrelevant to this case.

We hold that the trial court properly determined that plaintiffs are entitled to a limit of $50,000 in uninsured motorist coverage pursuant to the Skylark policy.

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

Affirmed.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE RARICK

text:
    J & J TRANSMISSIONS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jimmy Mattison, Appellee).
    Second District (Industrial Commission Division)
    No. 2—91—0461WC
    Opinion filed April 14, 1993.

      Mark A. Braun, of Braun, Lynch, Smith & Strobel, of Chicago, for appellant.
    Kevin H. Millón, of Ralph A. Grabic & Associates, P.C., of Wheaton, for appellee.
    James M. Charlton and James P. Palermini, both of Huck, Bouma, Martin, Charlton & Zellner, P.C., of Glen Ellyn, for Milwaukee Insurance Company.
   JUSTICE RARICK

delivered the opinion of the court:

Claimant, Jimmy Mattison, filed two applications for adjustment of claim (applications) pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) as a result of an accident on June 7, 1985 (85 — WC—37151), and a second accident on June 21, 1985 (85 — WC—49098), both occurring during his employment with the respondent, J & J Transmissions. Both accidents involved injury to the claimant’s lower back. Following a consolidated hearing on the two applications, the arbitrator found that the claimant failed to prove that his condition of ill-being was causally connected to his accident of June 7, 1985, and denied the claimant benefits on that application; however, the arbitrator found the claimant did prove his condition of ill-being was causally related to his accident of June 21, 1985, and awarded the claimant 22% weeks of temporary total disability (TTD), medical expenses in the amount of $2,534.75, and permanent partial disability (PPD) for 5% loss of the man as a whole. On review the Industrial Commission (Commission) modified the arbitrator’s decision by finding that the claimant’s condition of ill-being was causally related to his accident of June 7, 1985, and not the accident of June 21, 1985, but affirmed the arbitrator’s decision in all other respects. The circuit court of Kane County confirmed the decision of the Commission. We affirm.

At the arbitration hearing, the claimant testified that he had been employed by the respondent since September 1984. On June 7, 1985, he and another employee lifted a transmission from the floor to his bench. The transmission weighed 80 to 85 pounds. While the claimant was lifting the transmission, his right foot slipped in an oil spot. The claimant did not fall, but he “twisted and strained” his body. Immediately following this accident, the claimant suffered severe lower left back pain, and he noticed it was difficult for him to stand. He sat down for a period of time and tried to relax his back. The claimant testified that it felt like he pulled a muscle at that time. When the claimant injured himself, the shop manager, Mike Lambert, was present as was the claimant’s co-worker John Kosin. The claimant worked another hour and a half before he left for the day, following which he went straight home.

Upon arriving home, the claimant’s back was “really sore,” so he took the medications Darvon and Naprosyn, which he had on hand for another medical problem. The claimant also took a hot bath, and then he went to bed with a heating pad on his back. The next morning, the claimant could not sit up. He described his back as “very painful, swollen.” Because it was Saturday, the claimant stayed in bed that day with the heating pad and took more of his medication. The claimant did not go to work on Monday, but he did light stretching exercises to try to help his back.

The claimant returned to work on Tuesday, at about 1 p.m., as his back had “calmed down enough where I felt I could handle the work”; however, his back was still painful and it was hard for the claimant to get up. At work, the claimant did not do any lifting, but he did work at his bench, which did not require him to bend over. The claimant worked the remainder of the day, and while driving home from work, he stopped once or twice to stretch his back muscles because the muscles were tightening up on him, “like muscle spasms, more pain.” On Wednesday, the claimant stated he was a little more sore from working, but he did return to work. He did not lift anything and he stooped slowly.

The claimant explained that he did not try to do any lifting or bending at work until June 20, at which time he began lifting small transmissions with assistance. During this time, the claimant had continued his self-treatment with medication, heating pad, and hot baths.

On June 21, 1985, the claimant helped Lambert, who was having trouble getting clearance to remove an engine transmission from a car. The claimant was holding a pry bar between the car frame and the engine to move it so Lambert could obtain the necessary clearance. While using the pry bar, his feet again slipped on some antifreeze and oil on the floor. The claimant did not fall down, but he caught himself on the car in such a manner that he ended up like a “U” under the car. The claimant’s weight was on his arms. The claimant stated that he nearly “passed out” from the pain, and he knew he had hurt his back again. The claimant sat down for a while, and after he got up, he went home.

At home, the claimant again took his medication and a hot bath and went to bed with the heating pad. The claimant stayed in bed for the weekend, and on Monday, he called a doctor for an appointment. The claimant saw Dr. Creech the following day. Dr. Creech prescribed medication (muscle relaxers and pain killers) and light stretching exercises. The doctor did not permit him to return to work.

The claimant saw Dr. Creech a week later, but his condition had not improved. The doctor continued the claimant with the same treatment. On July 9, 1985, the doctor released the claimant for light duty, i.e., no lifting, bending or stooping. The claimant worked for a full day upon returning to work, but the next morning he was unable to get out of bed and was stiff and sore. The claimant called the doctor, who arranged for the claimant to undergo a CAT scan. The doctor prescribed more medication and started the claimant on physical therapy. The claimant continued the physical therapy and medication treatment, but when he failed to improve, Dr. Creech referred him to Dr. Schierer, an orthopedic specialist.

The claimant saw Dr. Schierer around September 1, 1985. Dr. Schierer prescribed a back brace, hot packs and exercise under a therapist’s supervision. Eventually, Dr. Schierer prescribed a TENS (transcutaneous electrical nerve stimulator) unit for him. The claimant continued to see Dr. Schierer until November 2, 1985, at which time the doctor released him and told the claimant he could not help him further. Since November 1985, the claimant has continued to use his back brace and his TENS unit as needed. According to the claimant, he uses his TENS unit approximately five times a week, sometimes for an hour, sometimes for all day. When Dr. Schierer released the claimant for work, it was with the restriction that he not be allowed to lift. The claimant testified that he continues to have pain in his back.

On cross-examination, the claimant explained that the medication he took between June 7, 1985, and June 21, 1985, was medicine that he had had on hand for “septic necrosis.” The claimant admitted that he did not seek medical treatment after the incident of June 7, 1985, and that his lost time for work and his professional medical treatment occurred after June 21, 1985. The claimant further admitted that he was “feeling good” when he returned to work on June 11, 1985, but that he was not back to normal. The medication he took on his own relieved the pain, but when the medication wore off, the pain returned.

Certain medical records were admitted into evidence. The records from Dreyer Medical Clinic (Dr. Schierer) indicated that the claimant reported he was injured at work on June 7, 1985, but that he first received medical treatment on June 25, 1985. The diagnosis of the claimant’s condition was given as lumbar and sacroiliac strain.

The records'from Copley Memorial Hospital (Dr. Creech) indicated that the claimant was first seen on June 25, 1985, that the claimant reported he injured his back 2Vz weeks prior to that time, and that he then reinjured his back three days before his examination. In a letter from Dr. Creech to Milwaukee dated January 16, 1986, Dr. Creech gave as his opinion that the claimant’s recent back problem “is a recurrence of the injury of June 7, 1985, which he sustained at work lifting a heavy transmission.” The doctor further stated in this letter that the claimant was off work for his back injury on June 10 and June 11 and that he had gradual improvement; however, on June 21, 1985, the claimant reinjured his back, which resulted in the claimant’s current back condition.

In a letter report from Dr. Hirschfield dated January 21, 1986, the doctor indicated he saw the claimant on January 13, 1986. In the history given to Dr. Hirschfield by the claimant, the claimant reported that he suffered an injury to his back on June 7, 1985, but that he received no medical attention and he continued to work. Subsequently, two weeks later, the claimant reinjured his lower back on June 21, 1985. Dr. Hirschfield reported that the claimant complained of pain, soreness and stiffness over his lower back and down his left leg with a tingling sensation in his left leg. The claimant also complained of pain on lifting, bending and sitting.

The X rays taken by Dr. Hirschfield indicated that the claimant had a narrowing of the lumbosacral disc space and osteophytic spurring at L4-L5. He diagnosed the claimant’s condition as lumbosacral sprain “with impairment of motility of both legs in straight leg raising,” and “[impairment of motility of the lumbosacral spine in extension and lateral bending,” with a “[p]ossible herniated disc syndrome” in the lumbar area. Dr. Hirschfield concluded by stating that “[bjased on the objective physical findings and x-ray [sic] findings, this patient sustained an injury to the lumbosacral area, accounting for permanent partial disability of moderate extent each leg.”

Dr. Schierer’s records indicated that the claimant injured his back on June 7, 1985. Dr. Schierer recommended that the claimant return to work on November 22, 1985, without restriction and that the claimant continue with his TENS unit.

A letter report by Dr. Timothy Payne dated November 4, 1986, indicated he saw the claimant on October 30, 1986. In this report, Dr. Payne stated that the claimant gave a history of having injured his back at work on June 7, 1985, following which the claimant developed stiffness and pain when getting out of bed, but that the claimant continued to work. On June 21, 1985, the claimant slipped while prying an engine from a car. Dr. Payne found that claimant had subjective complaints of stiffness and pain with lifting and pain radiating down his left leg. Dr. Payne examined the claimant and took X rays of the claimant’s lower back. As a result of his examination, Dr. Payne determined that the claimant had no appreciable objective impairment with his back, and he recommended that the claimant do a home exercise program.

From the foregoing evidence, the arbitrator found that the claimant’s condition of ill-being was causally connected to his accident of June 21, 1985, and awarded the claimant benefits for his injuries, but the arbitrator denied the claimant benefits for his incident of June 7, 1985, holding that the claimant failed to prove he had had an accident on that date. The Commission modified the arbitrator’s decision by holding that the claimant’s condition of ill-being was causally connected to his accident of June 7, 1985, and that the incident of June 21, 1985, was a recurrence of his back injury incurred earlier. The circuit court confirmed the Commission’s decision.

Before addressing the issues involved, some clarification is necessary. The appeal of the claimant’s case is not because the respondent disclaims that the claimant suffered from a work-related accident or contests the awarding of benefits, but the heart of the matter lies in the fact that on June 7, 1985, the respondent had a different insurance carrier than on June 21, 1985. The insurance carrier for the respondent on June 7, 1985, was Western States Insurance Company (Western), and the respondent’s insurance carrier on June 21, 1985, was Milwaukee Insurance Company (Milwaukee). The dispute on appeal concerns which carrier is liable to pay the benefits awarded to the claimant.

Initially, we must address a jurisdictional issue raised by Milwaukee. When review of the Commission’s decision was sought before the circuit court, all of the necessary documents required to invoke the circuit court’s subject-matter jurisdiction pursuant to section 19(f) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)) were timely filed with the circuit clerk. Among those documents filed was a bond, which was signed by Franklin D. Steiner, an employee (it appears this person’s title is senior claims manager) for Western as principal on the bond, and David A. Weiland signed the bond as an agent for the surety. Milwaukee filed a motion to quash summons and to dismiss Western’s appeal on April 30, 1990, on the basis that the bond filed was not in conformance with section 19(f), as Western was not the “one against whom the Commission shall have rendered an award for the payment of money.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)(2).) The circuit court denied Milwaukee’s motion.

Milwaukee subsequently filed a motion for reconsideration of its motion to quash summons and to dismiss appeal on December 5, 1990. The basis for this motion was again a defective bond, but Milwaukee supported its motion by citing to this court’s decision in Illinois Armored Car Corp. v. Industrial Comm’n (1990), 205 Ill. App. 3d 993, 563 N.E.2d 951, which was decided after Milwaukee’s first motion to quash had been denied. The circuit court denied Milwaukee’s motion for reconsideration and, in the same order, again denied its motion to quash summons and to dismiss the appeal. Milwaukee did not file a cross-appeal on the denial of its motion to quash and to dismiss; however, Milwaukee raises this issue in its answer brief.

Western argues in its reply brief that Milwaukee has waived this jurisdictional issue as Milwaukee did not file a cross-appeal on the denial of its motion. We need not address the waiver argument, however, because of our supreme court’s recent decision in Deichmueller Construction Co. v. Industrial Comm’n (1992), 151 Ill. 2d 413, 603 N.E.2d 516. In Deichmueller, our supreme court agreed with and adopted the decision and reasoning in Illinois Armored Car, but held the rule enunciated therein would apply prospectively from the date of the court’s opinion, September 24, 1992. As our decision in Illinois Armored Car does not apply to the case at present, the circuit court had subject-matter jurisdiction and Western’s waiver argument is moot.

Western first argues that the Commission’s determination that the claimant’s condition of ill-being was causally connected to his accident of June 7, 1985, and that the claimant’s incident of June 21, 1985, was simply a recurrence of his earlier back injury was against the manifest weight of the evidence. It is Western’s contention that the incident of June 21, 1985, was an “accident” as that term is legally defined under the case law and for the Commission to hold otherwise will create an anomaly in the law. It is Western’s position that the Commission has held that a recurrence of an injury is not an accident and, thus, is not compensable. Western argues that the claimant’s first professional medical treatment was obtained after the June 21, 1985, accident and that the claimant did not lose time off work until following that date, which is conclusive that the claimant’s injuries were causally connected to that date.

It is well established that it is the Commission’s province to determine whether an accident arose out of and in the course of employment, i.e., the causal connection between the employee’s condition of ill-being and his employment, and that the Commission’s determination of this issue will not be overturned on review unless contrary to the manifest weight of the evidence. (Peoria Motors, Inc. v. Industrial Comm’n (1982), 92 Ill. 2d 260, 442 N.E.2d 144.) Further, a claimant’s return to work following an accident is not determinative of causation between the accident and subsequent disability. Jewel Tea Co. v. Industrial Comm’n (1968), 39 Ill. 2d 180, 233 N.E.2d 557.

In the present case, claimant testified that when he returned to work following his June 7, 1985, accident, he felt good but he was not back to normal. His testimony established that it was only through the use of medicine he had on hand and by his self-imposed lifting restrictions that he was able to work. Further, he did miss a day and a half of work after the June 7, 1985, accident. Additionally, the claimant reported to all of the physicians he saw that he initially injured his back on June 7, 1985, and that he subsequently reinjured it on June 21, 1985. From the medical evidence and the claimant’s testimony, the Commission could have determined that the claimant’s ill-being was a result of his June 7, 1985, accident and that he had not healed sufficiently from this incident before another occurrence caused him to suffer a recurrence of his back injury. Thus, simply because the claimant returned to work was not determinative that his injury was not caused by his initial injury.

We find that this case is analogous to Jewel Tea Co. v. Industrial Comm’n (1968), 39 Ill. 2d 180, 233 N.E.2d 557. In Jewel Tea Co., the Commission found that the claimant’s back problems which arose during his employment for the City of Chicago were a recurrence of his injuries from two work-related accidents which had occurred over six months earlier while employed by Jewel Tea Company. The Commission held that Jewel was liable for the benefits due the claimant even though his reinjury occurred while in the employ of another. Here, the recurrence of the claimant’s injury was the result of another accident, but the claimant’s condition stemmed from his incident of June 7, 1985, when the claimant’s back injury was originally incurred. The Commission’s determination that his condition of ill-being was causally connected to his accident of June 7, 1985, was not against the manifest weight of the evidence.

The second issue raised by Western is that the Commission did not give due deference to the decision of the arbitrator, who had the witnesses before him and where the Commission did not hear additional evidence. Western supports this argument by citing to Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379, wherein Western claims that this court recognized that the Commission is not bound by the decision of the arbitrator, but that the arbitrator’s decision is not without legal effect, and that where no additional evidence is heard by the Commission, an extra degree of scrutiny of the record must be applied to determine whether there is support in the record for the Commission’s decision. However, this court stated subsequently in Dillon v. Industrial Comm’n:

“It is well settled that the Commission is the judge of the credibility of the witnesses. [Citation.] It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. [Citations.] Regardless of whether the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings.” (Dillon v. Industrial Comm’n (1990), 195 Ill. App. 3d 599, 607, 552 N.E.2d 1082, 1087.)

Thus, the proposition raised by Cook, which is substantially similar to the one that is being espoused by Western here, is not an accurate statement of the law, and the above quotation from Dillon controls. Therefore, Western’s argument must fail.

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

Affirmed.

McCULLOUGH, P.J., and EGAN, STOUDER and WOODWARD, JJ., concur.