text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYSON W. STOCKE, Defendant-Appellant.
    Fifth District
    No. 5—90—0405
    Opinion filed April 23, 1991.
    Rehearing denied May 28, 1991.

      Alan C. Downen, of McLeansboro, for appellant.
    Mark Stanley, State’s Attorney, of Carmi (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On December 22, 1989, defendant, Tyson W. Stocke, was charged with driving too fast for conditions, a violation of section 11 — 601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—601(a)), as a result of a vehicle collision in which several individuals were seriously injured. On May 15, 1990, following a bench trial before the circuit court of White County, the defendant was found guilty as charged. Defendant waived a presentence investigation report and, following a sentencing hearing on June 7, 1990, he was sentenced. The sentencing order was modified on July 5, 1990, following defendant’s motion to reconsider. Defendant appeals the sentence.

Defendant was placed on conditional discharge for six months. One of the conditions of his discharge is that he serve a period of 75 days’ home confinement within the interior of his parents’ home except to go to work, to seek medical or dental treatment, to report to his probation officer, or as his probation officer directs. Defendant was also sentenced to serve 15 hours of community service in the form of preparing a speech about the disastrous effect of driving a motor vehicle too fast for conditions and presenting it to driver’s education classes throughout the school district. Finally, defendant was ordered to pay cash restitution in the amount of $95,309.04 to the three individuals in the vehicle he struck who were seriously injured. The amount of restitution was to be reduced by the amount paid to the victims by the defendant or by any person on behalf of defendant, including any insurance proceeds the victims may receive on account of the accident or by virtue of any court actions.

At the time of the sentencing hearing, defendant was 18 years of age. He had finished his third year of special education classes at his high school but did not have enough credits to be considered a senior. He was working at a summer job earning minimum wage and had no assets to speak of. There is no evidence that defendant had any past criminal history, or any prior traffic offenses. Defendant’s father worked as a mail carrier, his mother as a beautician. Defendant lived with his mother and father.

Defendant presents several issues on appeal: (1) whether a sentence to home confinement is proper as a condition of conditional discharge for a petty offense; (2) whether the order of restitution was proper; (3) whether requiring defendant to present speeches to driver’s education classes was an abuse of the trial court’s discretion; and (4) whether the sentence as a whole was too severe and therefore an abuse of the trial court’s discretion. We will address the issues seriatim.

Defendant’s first argument is that home confinement is not a proper sentence upon conviction of a petty offense because it amounts to imprisonment, a sentence not authorized by the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1001—1—1 et seq.) for a petty offense. Defendant argues that, although home confinement is specifically authorized as a condition of conditional discharge, the legislature did not intend for it to be available in the case of a petty offense. Defendant argues that home confinement was made available as a sentencing alternative as a less expensive method of confining a defendant who was already eligible for a jail sentence. Defendant also argues that to make home confinement available as a sentence for a petty offense increases the penalty for a petty offense because home confinement is tantamount to imprisonment. Defendant argues the legislature never contemplated such a result and certainly never intended such a result.

The State agrees that driving too fast for conditions is a petty offense and that imprisonment is not available as a sentencing option for a petty offense. The State argues, however, that conditional discharge is an appropriate sentence for one convicted of a petty offense, and that home confinement is specifically authorized as a condition of conditional discharge. Furthermore, home confinement is not the equivalent of imprisonment or incarceration.

Section 5 — 5—3(c)(5) of the Unified Code of Corrections sets forth the authorized dispositions upon conviction of a petty offense. The court may sentence an offender convicted of a petty offense to a period of conditional discharge, to a fine, or to make restitution to the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(c)(5).) The period of conditional discharge is not to exceed six months in the case of a petty offense. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—2(b)(4).) Section 5—6—3 of the Code sets forth the permissible conditions of conditional discharge. Among the conditions permitted but not required is that a defendant serve a period of home confinement. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—3(b)(10).) This condition was added to section 5 — 6—3 by the passage of Public Act 81 — 1021, effective in 1979.

The language of section 5 — 6—3 does not limit the availability of the condition of home confinement to misdemeanants or felons. However, defendant argues that the condition is so limited by implication because home confinement is the equivalent of imprisonment, imprisonment is not an authorized penalty for a petty offense, and the legislature did not intend to increase the penalty for petty offenses by passage of Public Act 81 — 1021.

We agree with defendant that the legislature did not intend, by passage of Public Act 81 — 1021, to increase the penalty for petty offenses. However, we do not agree with defendant that home confinement is the equivalent of imprisonment. To the contrary, we think it is quite different from imprisonment and that it is authorized as a penalty for petty offenses by the Unified Code of Corrections.

In People v. Ramos (1990), 138 Ill. 2d 152, 159, 561 N.E.2d 643, 647, our supreme court held that home confinement is not the equivalent of incarceration:

“Home confinement, though restrictive, differs in several important respects from confinement in a jail or prison. An offender who is detained at home is not subject to the regimentation of penal institutions and, once inside the residence, enjoys unrestricted freedom of activity, movement, and association. Furthermore, a defendant confined to his residence does not suffer the same surveillance and lack of privacy associated with becoming a member of an incarcerated population.”

Although Ramos dealt with whether a defendant should receive credit against his sentence of imprisonment for time spent while on bail but subject to home confinement, we think the court’s reasoning applies equally to the case at bar. Home confinement simply is not the equivalent of imprisonment. See also People v. Denning (1990), 204 Ill. App. 3d 720, 562 N.E.2d 354.

In the instant case, defendant may leave his residence to go to his employment, he may eat and drink what and when he pleases, and, within the confines of his home, may associate with whomever, whenever, he pleases. He is not under guard and, other than not being able to leave his home for purposes of entertainment or personal pleasure, may live a normal life. We think this is a far cry from institutional incarceration and is, under the current statutory scheme, a permissible condition of conditional discharge in the case of a petty offense.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent. In doing so a court must look first to the statutory language itself. If the language..is clear, the court must give it effect and should not look to extrinsic aids for construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167, 171.) The legislature has clearly authorized home confinement as a penalty for a petty offense, if imposed as a condition of conditional discharge. We see no ambiguity in the statutory language or scheme, nor do we think the statutory scheme creates an injustice. While defendant directs us to the legislative debates concerning Public Act 81 — 1021 in support of his position, where the language of a statute is unambiguous, as here, there is no reason to examine extrinsic sources such as legislative debates. In re A.M.C. III (1986), 148 Ill. App. 3d 775, 781, 500 N.E.2d 104, 108.

We conclude that home confinement is an authorized disposition for a petty offense when imposed as a condition of conditional discharge. The trial court did not err in sentencing defendant to serve 75 days’ home confinement as a condition of his conditional discharge.

Defendant’s second argument is that the trial court erred in imposing a sentence of restitution. Defendant was ordered to pay $95,309.04 .in restitution for medical bills incurred by the parties who were injured in the car he struck. At the sentencing hearing, these injured parties testified to their injuries and the expenses they had incurred to date.

Defendant argues that a sentence of restitution was inappropriate for three reasons: (1) he had no proven ability to pay; (2) ordering restitution in cash was improper because the injured parties were not “victims” within the meaning of section 5—5—6(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(1))); and (3) restitution in this case amounted to imposition of civil liability upon defendant without according him his due process rights. We agree with defendant that imposing restitution in cash in the instant case was inappropriate and improper because the injured parties were not “victims” within the meaning of the restitution statute.

Section 5 — 5—6(a) of the Unified Code of Corrections provides that restitution may take three forms: (1) defendant may be ordered to return property to the possession of the person entitled to possession; (2) defendant may be ordered to repair or restore property damaged; or (3) defendant may be ordered to make restitution in cash. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(a).) Section 5 — 5— 6(b) provides that cash restitution may be paid only for actual out-of-pocket expenses, losses, damages and injuries, and only to “victims” or insurance companies who have indemnified “victims.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(b).) In People v. Sharp (1989), 185 Ill. App. 3d 340, 344, 541 N.E.2d 689, 691, we held that the term “victim” as used in the restitution statute means any person physically injured in this State as a result of a violent crime perpetrated or attempted against that person. We further held that the term “violent crime” means any felony in which force or threat of force was used against the victim or any misdemeanor which results in death or great bodily harm to the victim or any violation of section 9 — 3 of the Criminal Code of 1961, as amended, or section 11 — 501 of the Illinois Vehicle Code, or a similar provision of a local ordinance, if the violation resulted in personal injury or death.

The offense for which defendant was convicted in the instant case was a petty offense. As such, it clearly does not fall within the definition of “violent crime,” and the parties to whom defendant was ordered to make restitution do not qualify as “victims” within the meaning of the restitution statute. Accordingly, the trial court erred in ordering defendant to make restitution in cash to those parties. We emphasize that our decision on this point pertains only to cash restitution, and not to the other types of restitution permitted by law. We hereby vacate that portion of defendant’s sentence which ordered him to make cash restitution. In light of this decision, we need not address defendant’s other objections to the restitution order.

Defendant’s third argument on appeal is that the trial court abused its discretion in ordering defendant, as a condition of his conditional discharge, to perform public service in the form of preparing a speech on the disastrous effect of driving too fast for conditions and presenting it to driver’s education classes. Defendant argues that at the sentencing hearing, the court made no effort to determine whether defendant had the mental capability to prepare and present such a speech. Defendant argues that the court had a statutory obligation to determine whether such a condition was reasonable, and that in failing to make a determination as to whether defendant was capable of preparing and presenting the speech, it failed in its statutory obligation. This failure, argues defendant, amounts to an abuse of discretion.

Section 5 — 6—3(b)(9) of the Unified Code of Corrections allows the sentencing court to require as a condition of conditional discharge that defendant perform some reasonable public or community service. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—3(b)(9).) Furthermore, a sentencing court may impose conditions not expressly authorized by the statute provided there is some connection between the condition and the underlying crime. (People v. Whittington (1980), 87 Ill. App. 3d 504, 506, 409 N.E.2d 150, 151.) Of course, the condition must be reasonable, taking into account the individual defendant. Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—3(b).

In the instant case, the trial court ordered defendant to prepare the speech and present it to the court. The court explained:

“I made the requirement that you give the speech first to me so that I can make some determination as to whether or not I felt it was sufficient for you to go out and give to these groups that I’ve ordered you to. If nothing else, my way of making sure you were capable of doing that. It’s not my intention for you to embarrass this Court by giving a speech that’s not adequate or to embarrass yourself. The idea of giving it to me first was one, to allow me to — to determine whether or not you had met the preparation of being prepared to go into a class and tell them your story. And if not, to try to come up with some assistance to make you prepared to do that. *** And I think with that type of format, that it’s certainly reasonable and you’re certainly in a much better position to do some service to this community to these individuals by — if you’ll tell them what it is you’ve been through by this accident.”

The court further explained that it had observed the defendant in court and had listened to his statement at his sentencing hearing, and had considered those observations in requiring defendant to perform this public service.

We think the record shows that the trial court carefully considered defendant’s ability to perform the public service ordered and that the condition imposed is reasonable. The condition is also related to the offense of which defendant was convicted. The trial court did not abuse its discretion in ordering defendant to perform this public service.

The fourth and final argument presented by defendant is that, even if the sentence was otherwise proper, it was too severe considering all the circumstances. Defendant points out that defendant had no prior convictions, the offense was only a petty offense, it did not involve intentional conduct on the part of defendant and the court imposed sentence without knowing if the persons injured were contributorily negligent. The State points out that three people were seriously injured as a result of defendant’s conduct.

It is firmly established that the imposition of sentence is a matter of judicial discretion and that, absent an abuse of that discretion, the sentence of the trial court may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The trial court is normally the proper forum in which to determine a suitable sentence, and the trial judge’s decision in regard to sentencing is entitled to great deference and weight. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

We point out that we are hereby vacating that portion of defendant’s sentence which required him to pay cash restitution. With respect to the remainder of defendant’s sentence, we find no abuse of discretion. The record does not reflect that the court failed to consider defendant’s potential for rehabilitation. To the contrary, the record reflects that the trial court carefully considered what sentence to impose and fashioned a sentence to balance the seriousness of the offense with the objective of restoring the offender to useful citizenship, as required by our constitution. (Ill. Const. 1970, art. I, §11.) We do not agree that the sentence imposed upon defendant is unduly severe.

In summary, we vacate that portion of defendant’s sentence which required him to make cash restitution to the individuals injured in the accident. We affirm the remainder of defendant’s sentence.

For the foregoing reasons, the judgment of the circuit court of White County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

HARRISON and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE CHAPMAN,

license: Public Domain

text:
    BITUMINOUS CASUALTY CORPORATION, Plaintiff-Appellee, v. LELAND FULKERSON, SR., et al., d/b/a Fulkerson Oil, et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0790
    Opinion filed May 3, 1991.

      CHAPMAN, J., concurring in part and dissenting in part.
    Appeal from the Circuit Court of White County; the Hon. Leo T. Desmond and the Hon. Robert M. Keenan, Jr., Judges, presiding.
    James L. Van Winkle, of Van Winkle & Van Winkle, of McLeansboro, for appellants LeLand Fulkerson, Sr., and M.L. Fulkerson.
    James R. Conley, Jr., of Carmi, for appellant Paul Puntney.
    Douglas A. Enloe, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Bituminous Casualty Corporation (Bituminous), sold a comprehensive general liability insurance policy to Paul Puntney, an oil well service contractor. When Puntney was subsequently sued by Leland and M.L. Fulkerson, Bituminous brought this action against both Puntney and the Fulkersons to obtain a declaratory judgment that the damages sought by the Fulkersons in their lawsuit were excluded from coverage under Puntney’s insurance policy and that Bituminous therefore had no obligation to either defend Puntney or to pay any judgment which might be rendered against him in that litigation.

After filing his answer to Bituminous’ complaint, Puntney sought leave to assert as an affirmative defense that Bituminous was estopped from denying coverage. Following a hearing, the circuit court issued an order denying Puntney’s request to raise his proposed affirmative defense. Thereafter, the court entered summary judgment in favor of Bituminous on its declaratory judgment action. Puntney and the Fulkersons now appeal. On this appeal both Puntney and the Fulkersons contend that the circuit court erred in granting summary judgment to Bituminous. Puntney alone further contends that the circuit court abused its discretion in denying him leave to assert his affirmative defense. For the reasons which follow, we reverse and remand with directions.

The litigation underlying Bituminous’ declaratory judgment action commenced in May of 1987, when Leland and M.L. Fulkerson filed suit against Paul Puntney in the circuit court of White County. In their complaint, the Fulkersons alleged that they had hired Puntney to set a “Guiberson packer” in an oil well they were constructing. Although the record is not entirely clear on this point, we understand that a packer is essentially a cylindrical plug which can be inserted into the casing which lines oil well bores. Its purpose is to enable sections of the well to be isolated so that work can be performed on limited or specific areas of the oil-bearing formation. When installed properly, packers are supposed to be readily removable from the well’s casing.

The well for which Puntney was employed to set the packer was known as the Tom Ramsey No. 1. The well was evidently several thousand feet deep. The Fulkersons alleged that at a depth of 2,062 feet there was a collar in the well’s casing where two sections of the casing joined. They further alleged that Leland Fulkerson warned Puntney of the collar’s location so that Puntney would not set the packer there. According to count I of the Fulkersons’ complaint, however, Puntney acted negligently in setting the packer, as a result of which it became lodged in the collar and, despite repeated efforts, could not be removed. With the well blocked in this way, it could not be used and had to be abandoned. The Fulkersons averred that they were ultimately forced to drill a second well to tap into the oil formation and that the new well was inferior to the original.

Count II of the Fulkersons’ complaint contained the same basic factual allegations as count I, but was premised on breach of implied warranty rather than negligence. In both counts, the Fulkersons sought damages for the amounts they had expended in drilling and operating the Tom Ramsey No. 1 well, for the losses they had incurred in attempting to retrieve the packer and repair the well after the packer became stuck, for the expenses they had incurred in drilling the replacement well, and for the loss of oil production they allegedly sustained as a result of having to drill the replacement well.

During the period relevant to the Fulkersons.’ complaint, Puntney held a comprehensive general liability insurance policy issued by Bituminous. Puntney had purchased this policy specifically for his business as an oil well service contractor, and when the Fulkersons filed suit against him, Bituminous retained counsel to represent him in that action. Approximately two months after the Fulkersons brought their complaint, however, Bituminous filed a separate declaratory judgment action in the circuit court of White County pursuant to. section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—701) against both the Fulkersons and Puntney. In this action, Bituminous contended that the insurance policy it had issued to Puntney did not cover any of the damages at issue in the litigation filed by the Fulkersons. The basis for Bituminous’ claim was an exclusion in the policy which stated that the insurance did not apply to damage to “property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.”

The insurance policy containing this exclusion and a copy of the complaint filed against Puntney by the Fulkersons in the underlying action were attached to Bituminous’ complaint as exhibits. Based upon these exhibits and the allegations in its own complaint, Bituminous asked the circuit court to declare that it had no duty to defend Puntney in the action brought against him by the Fulkersons and that it had no obligation under the policy to pay any judgment which might be rendered against Puntney in that action.

The Fulkersons and Puntney each opposed Bituminous’ action on the merits. After discovery was initiated, Puntney also sought leave to raise as an affirmative defense that Bituminous was estopped by its conduct from denying that its insurance policy provided coverage. As grounds for his estoppel claim, Puntney alleged that when the Fulkersons first sued him, Bituminous retained a law firm to defénd him in that case. Puntney further contended that under the express terms of the insurance policy, he had a contractual obligation to cooperate with the company in the conduct of the litigation and to provide it with all relevant documentation in his possession as soon as practicable. Pursuant to this contractual obligation, Puntney collected up all of the documents he had which were relevant to the Fulkersons’ claim and turned them over to the law firm.

After Puntney surrendered the documents to the law firm, Bituminous filed its declaratory judgment action seeking to avoid coverage under the policy. That Bituminous had a right to challenge coverage by way of a declaratory judgment action was not disputed. What Puntney complained of in his proposed affirmative defense was that after he turned over all his records to the lawyers selected by Bituminous and after Bituminous made a decision to contest coverage, the lawyers lost the documents. According to Puntney, the documents were necessary and essential to the defense of the action brought against him by the Fulkersons. He therefore argued that Bituminous should now be estopped from denying coverage because at the same time Bituminous decided to contest coverage, it had made it impossible for him to adequately contest his liability.

The circuit court evidently found Puntney’s arguments unpersuasive, and in an order entered on July 3, 1989, it denied his motion for leave to raise his affirmative defense. Two days later, Bituminous filed its motion for summary judgment on its action for declaratory judgment. Following a hearing, the circuit court entered an order on October 31, 1989, in which it granted summary judgment in favor of Bituminous and against Puntney and the Fulkersons. In reaching this judgment, the circuit court expressly found that the insurance policy issued to Puntney by Bituminous excluded from coverage the type of damage for which Puntney had been sued by the Fulkersons in the underlying action. From this judgment, both the Fulkersons and Puntney now appeal.

There is no dispute that the circuit court’s judgment had the effect of holding that Bituminous had no duty, as a matter of law, to either indemnify Puntney or to provide him with a defense. Insofar as the circuit court’s judgment declared that Bituminous had no duty to indemnify Puntney, that judgment cannot stand. The duty to indemnify arises only when an insured becomes legally obligated to pay damages in the underlying action. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 52, 514 N.E.2d 150, 163.) Accordingly, it has been held that ‘[a] declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not ripe before adjudication.’ ” United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1101, 550 N.E.2d 1032, 1041, appeal allowed (1990), 132 Ill. 2d 555, 555 N.E.2d 386, quoting Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 156, 466 N.E.2d 1091, 1095-96.

Although our supreme court has carved out an exception to this rule for declaratory judgment actions brought to determine insurance coverage where the issues involved in the declaratory judgment action are separable from those in the underlying action (see Murphy v. Urso (1981), 88 Ill. 2d 444, 455-57, 430 N.E.2d 1079, 1084-85), this is not such a case, as will be discussed more fully below. Because there has been no adjudication of liability on the underlying action here, we must therefore conclude that the circuit court’s judgment must be reversed to the extent that it absolved Bituminous from any obligation to indemnify Puntney under Puntney’s insurance policy.

We likewise believe that the circuit court’s judgment must be reversed insofar as it held that Bituminous has no duty to defend Puntney in the action brought against him by the Fulkersons. The record before us shows that in addressing the question of whether Bituminous was entitled to summary judgment on its claim that it had no duty to defend Puntney, the parties relied heavily on deposition testimony and affidavits. There can be no serious dispute that it was these evidentiary matters, and not the allegations in the Fulkersons’ complaint itself, which served as the predicate for the circuit court’s judgment. As a general rule, consideration of such matters is entirely appropriate on a motion for summary judgment. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Such is not the case, however, where, as here, summary judgment is sought in the context of a declaratory judgment action to determine whether an insurer has a duty to defend.

Where a declaratory judgment action is brought to determine an insurer’s duty to defend, the rule in this State is that the court must look only to the complaint in the underlying action to see if the allegations set forth therein show that the insured’s conduct is within or potentially within coverage. (Zurich Insurance Co. v. Raymarlc Industries, Inc. (1987), 118 Ill. 2d 23, 52, 514 N.E.2d 150, 163; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28.) In other words, it is only the allegations in the underlying complaint, considered in the context of the relevant policy provisions, which should determine whether an insurer owes a duty to defend an action brought against an insured. Scudder v. Hanover Insurance Co. (1990), 201 Ill. App. 3d 921, 925, 559 N.E.2d 559, 561; United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1092, 550 N.E.2d 1032, 1035, appeal allowed (1990), 132 Ill. 2d 555, 555 N.E.2d 386.

If the conduct alleged in the underlying action is within or potentially within the policy’s coverage, the insurer is duty bound to defend its insured (West American Insurance Co. v. Vago (1990), 197 Ill. App. 3d 131, 136, 553 N.E.2d 1181, 1184) even if the insurer discovers that the allegations are groundless, false, or fraudulent (Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335, 339). A court may look beyond the allegations in the complaint only if the coverage issue involves such ancillary matters as whether the insured paid the premiums or whether he is the proper insured under the policy. State Farm Fire & Casualty Co. v. Shelton (1988), 176 Ill. App. 3d 858, 867, 531 N.E.2d 913, 919.

These principles are derived from the rule that when a court is asked to declare whether an insured’s conduct is covered under a policy in the context of a declaratory judgment action, the court must not determine disputed factual issues that are crucial to the insured’s liability in the underlying lawsuit. (176 Ill. App. 3d at 863, 531 N.E.2d at 919.) A declaratory judgment action should not, after all, be used to force the parties to an injury action to have a “dress rehearsal” of an important issue expected to be tried in .the injury action. (176 Ill. App. 3d at 865, 531 N.E.2d at 918.) That, however, is precisely what happened here.

Although the parties proceeded by way of depositions and affidavits instead of live testimony, the hearing on the summary judgment motion was essentially an abbreviated version of what is likely to occur when a trial is held on the merits of the liability issue in the underlying action. As framed by the parties, a central question in the declaratory judgment action was how much responsibility Puntney had for the events culminating in the closure of the Tom Ramsey No. 1 well. Puntney’s principal defense was that he was not responsible at all because the packer got stuck in the well casing because of where it was placed (namely, beneath some perforations in the casing), and the decision as to where the packer would be placed was made entirely by Leland Fulkerson, who owned the packer and directed all aspects of the work at the well. Bituminous, on the other hand, argued, inter alia, that Puntney was solely responsible for all the work involved in setting the packer; that he used his own equipment personnel to do the job; that he had complete authority over the well when he set the packer therein, including responsibility for how and where the packer was placed; and that Fulkerson was merely an observer who “did not tell or attempt to tell Puntney how to operate his equipment or set the packer.”

These issues were clearly central to the charges brought by the Fulkersons in the underlying litigation. They were in no sense merely “ancillary matters.” We must therefore conclude that the circuit court erred in looking beyond the face of the complaint in reaching its decision in the declaratory judgment action. In reaching this conclusion, we recognize that neither the Fulkersons nor Puntney, the appellants in this case, raised this point of error. Normally the matter would therefore be regarded as waived, for, as we have recognized, a reviewing court should extend its inquiry beyond the scope of arguments presented by counsel only with great circumspection. Nevertheless, Supreme Court Rule 366 (107 Ill. 2d R. 366) permits a reviewing court, in the exercise of its responsibility for a just result and for the maintenance of the sound and uniform body of precedent, to ignore considerations of waiver and decide a case on grounds not properly raised or not raised at all by the parties. (Sumner Realty Co. v. Willcott (1986), 148 Ill. App. 3d 497, 500, 499 N.E.2d 554, 556.) We believe that such a course is proper here.

If one looks only at the allegations contained in the Fulkersons’ complaint in the underlying action, it is evident that the circuit court’s entry of summary judgment on the declaratory judgment action cannot stand. As we have indicated, the general rule in this State is that if a complaint alleges facts potentially within the coverage of the policy, the

duty to defend has been established. The duty to defend exists even if the complaint alleges several causes of action and only one is within potential policy coverage. West American Insurance Co. v. Vago (1990), 197 Ill. App. 3d 131,136, 553 N.E.2d 1181, 1184.

The threshold that a complaint must meet to present a claim for potential coverage is low. The allegations of the complaint must be construed liberally, and any doubt as to coverage must be resolved in favor of the insured. (Scudder v. Hanover Insurance Co. (1990), 201 Ill. App. 3d 921, 925, 559 N.E.2d 559, 561; United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1092, 550 N.E.2d 1032, 1035, appeal allowed (1990), 132 Ill. 2d 555, 555 N.E.2d 386.) Moreover, where, as here, an insurer seeks to avoid coverage based on an exclusionary provision in the policy, the applicability of the exclusionary clause must be clear and free from doubt. 193 Ill. App. 3d at 1098, 550 N.E.2d at 1039.

As we have discussed, the exclusionary provision which Bituminous invokes here as the basis for its claim that it has no duty to defend Puntney provides that Puntney’s insurance coverage does not apply to damage to property “in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.” Under Illinois law, property is deemed to be in the care, custody or control of the insured when it is in the possessory control of the insured at the time of the loss and is a necessary element of the work performed. Country Mutual Insurance Co. v. Waldman Mercantile Co. (1981), 103 Ill. App. 3d 39, 42, 430 N.E.2d 606, 609.

In their complaint against Puntney, the Fulkersons asked for recovery of $173,761.89 which they expended on the Tom Ramsey No. 1 from the commencement of operations there to the time the well was abandoned; $24,791.58 which they expended in attempting to retrieve the packer and repair the well; $118,687.82 which they expended in drilling a replacement well, known as the Tom Ramsey Al, on the oil lease; and unspecified amounts for the loss of oil production they allegedly sustained as a result of having to drill the replacement well. From these allegations it is evident that the property which the Fulkersons claimed to have been damaged was not limited to the packer inserted by Puntney, but included the original oil well itself.

Puntney argues that this oil well constituted real or immovable property and that, as a matter of law, such property is never subject to “care, custody or control” exclusions such as the one in Puntney’s insurance policy with Bituminous. In our view, however, adoption of such a sweeping principle is not necessary to disposition of this appeal. Even if real or immovable property were capable of being placed under the possessory control necessary to trigger the “care, custody or control” exclusion, the allegations in the Fulkersons’ complaint were insufficient to show that Puntney had such possessory control here.

The complaint gives no indication that Puntney did anything other than set the packer in the well, which was the task he was hired to perform. He is not claimed to have operated on the mineral formation or even upon the walls of the well. To carry out his task, Puntney was doubtless required to physically manipulate the packer in the well bore. We do not believe, however, that the mere performance of work within a well bore is sufficient, standing alone, to establish as a matter of law that Puntney had “care, custody or control” of the well itself (see Petrol Industries, Inc. v. Gearhart-Owen Industries, Inc. (La. App. 1982), 424 So. 2d 1059, 1064; Meadows & Walker Drilling Co. v. Pacific Employers Indemnity Co. (S.D. Tex. 1971), 324 F. Supp. 282, 284-85; Goswick v. Employers’ Casualty Co. (Tex. 1969), 440 S.W.2d 287, 290), and the Fulkersons’ complaint contains no further factual allegations from which one could reasonably infer that the process of setting the packer necessitated that Puntney assert any sort of care, custody or control over that well.

The complaint did allege that it was Puntney’s negligence in setting the packer which rendered the well unusable. Nevertheless, Puntney’s insurance policy with Bituminous did not exclude damage caused by property in the insured’s control. It only excluded damage to such property. Thus, the fact that the packer may have been in Puntney’s control at the time the well was damaged does not mean that damage to the well itself is excluded from coverage. (See Goswick v. Employers’ Casualty Co. (Tex. 1969), 440 S.W.2d 287, 290.) Accordingly, it cannot be said as a matter of law that the damage to the oil well was not within the potential coverage of Puntney’s insurance policy with Bituminous. The circuit court therefore erred in granting summary judgment in favor of Bituminous and should not have relieved it of its duty to defend Puntney in the underlying action.

Even if it had been proper for the circuit court to look beyond the face of the Fulkersons’ complaint and to consider the depositions and affidavits submitted by the parties in connection with Bituminous’ summary judgment motion, the circuit court’s judgment could not be sustained. Those evidentiary materials confirmed that Puntney had exclusive physical control over the packer when it was being placed in the well, but they did not show conclusively that Puntney had “care, custody or control” of the well itself. To the contrary, a substantial amount of evidence was adduced through the depositions and affidavits which indicated that, at all times, the care, custody and control of the well itself remained with the Fulkersons. Affidavits submitted on behalf of Puntney and by the Fulkersons themselves specifically confirmed this. Eric Williams, who assisted Puntney in setting the packer, swore in his affidavit that at all relevant times he and Puntney were “under the direct supervision of Leland Fulkerson who made all decisions and personally directed all decisions and aspects of [their] work at the Tom Ramsey No. 1 site,” and the Fulkersons swore in their affidavit that Puntney placed the packer in the hole for the well at their instruction and that at all times the well bore, casing and formation remained under their control. Under these circumstances, the circuit court erred in summarily concluding as a matter of law that the Fulkersons’ claim for damage allegedly caused to the well by Puntney was excluded from coverage under Puntney’s insurance policy with Bituminous.

Just as we believe that the circuit court erred in granting summary judgment in favor of Bituminous, we also believe that it abused its discretion in denying Puntney leave to assert his proposed affirmative defense. The grounds for Puntney’s affirmative defense were straightforward. As indicated at the outset of this opinion, Puntney asserted that after he was sued by the Fulkersons for damage to the well, Bituminous retained a law firm to defend him in that case. Puntney collected all of the documents he had which were pertinent to the litigation and surrendered them to the law firm, which he claims he was contractually obligated to do under the terms of his insurance policy. After Bituminous initiated its declaratory judgment action, however, Puntney allegedly discovered that the law firm had lost all of those documents. According to Puntney, those documents were necessary and essential to his defense of the litigation brought against him by the Fulkersons. Accordingly, he asserted that their loss would leave him without any adequate remedy at law and that Bituminous should therefore be estopped from denying insurance coverage for any liability arising out of the action brought against him by the Fulkersons.

Although Puntney did not seek to assert this affirmative defense until approximately a year and a half after Bituminous filed its declaratory judgment action, he claimed that he did not learn and could not reasonably have learned that the documents were missing until that time. On this appeal, Bituminous does not suggest, and it apparently has never suggested, that Puntney was in any way dilatory in raising his estoppel defense. Nor does.Bituminous contend that it would have been prejudiced had Puntney been permitted to assert his proposed affirmative defense in the manner and at the time attempted here. Rather, the gravamen of Bituminous’ objection is simply that the proposed affirmative defense is insufficient as a matter of law because it did not adequately allege facts which, if true, would constitute estoppel. We cannot accept this analysis.

As a preliminary matter, Bituminous has not cited, and we have not found, any authority suggesting that defects in the way a proposed affirmative defense is pleaded constitute a sufficient basis for denying leave to amend a pleading to raise that defense. Section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—616), which governs amendments to pleadings, states simply that such amendments, including the addition of new defenses, may be allowed at any time before final judgment “on just and reasonable terms.” Whether an amendment is permitted under this provision lies within the sound discretion of the trial court, but the factors which a trial court should consider in exercising this discretion are whether the proposed amendment would cure a defective pleading, whether the amendment could cause prejudice or surprise to an adverse party, the timeliness of the proposed amendment, and whether previous opportunities to amend the pleadings can be identified. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 988, 508 N.E.2d 522, 530.) Tj’he first of these factors clearly does not apply where, as here, a party seeks to assert an affirmative defense for the first time, and the remaining factors are not addressed in any way to the sufficiency of the allegations in the proposed amendment.

The Code of Civil Procedure does provide a mechanism for challenging a pleading which is claimed to be substantially insufficient in law, but that is not through objection to a motion for leave to amend under section 2—616 (Ill. Rev. Stat. 1987, ch. 110, par. 2—616). It is through a motion with respect to pleadings filed under section 2—615 (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). Motions brought pursuant to section 2—615 must meet specific requirements. They must specify the particular defects complained of and the relief sought by the moving party. The purpose of requiring that defects be specifically identified is to afford the nonmoving party an opportunity to cure those defects by amendment (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976, 983), and such amendments are expressly authorized by subsection (d) of the rule (Ill. Rev. Stat. 1987, ch. 110, par. 2—615(d)).

None of these things is provided for in the context of a simple motion for leave to amend to raise a new affirmative defense under section 2—616 (Ill. Rev. Stat. 1987, ch. 110, par. 2—616). For this reason, we do not believe that parties should be allowed to use objections to motions filed under section 2 — 616 as a substitute for a motion with respect to pleadings under section 2 — 615. That, however, is apparently exactly what happened here. From the record before us, there is no indication that Bituminous preferred anything which could remotely be regarded as a section 2 — 615 motion. Because of this, and because no claim has been made that the proper elements necessary to justify leave to amend were not satisfied here, we must conclude that the circuit court erred in denying such leave to Puntney.

Even if the sufficiency of the allegations in Puntney’s proposed new affirmative defense were a proper matter to be taken up by the circuit court, Bituminous’ objections to the affirmative defense would still be unavailing. Bituminous contends that there is no allegation that it was directly responsible for the loss of Puntney’s documents. The affirmative defense specifically avers, however, that the lawyers who lost the documents had been retained by Bituminous to handle Puntney’s case and that Puntney was contractually obligated under his insurance policy "with Bituminous to surrender the documents to them. Under these circumstances, we believe that the acts and omissions of the attorneys are certainly imputable to Bituminous itself.

Bituminous also argues that the allegations in the defense are insufficient because they do not show any misconduct by it or knowledge of the misconduct by the attorneys it retained. What Bituminous fails to comprehend is that misconduct is not necessary to establish estoppel. For insurance purposes, estoppel refers to an abatement, raised by law, of rights and privileges of an insurer where it would be inequitable to permit their assertion. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.) Unlike waiver, estoppel does not focus on the conduct or intent of the insurer, but on the effect of the insurer’s conduct on the insured. National Tea Co. v. Commerce & Industry Insurance Co. (1983), 119 Ill. App. 3d 195, 205, 456 N.E.2d 206, 214.

Estoppel, of course, necessarily requires prejudicial reliance on the part of the insured. (Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d at 500, 475 N.E.2d at 879.) Although Bituminous did protest that there were no “allegations of ultimate facts to show any prejudice which might have resulted to Puntney from the claimed conduct,” i.e., the loss of the documents, this contention is completely untenable. According to Puntney’s pleading, he turned over to the attorneys all of the documents in his possession which were relevant to the claim brought against him by the Fulkersons. As we have indicated, Puntney further alleged that those documents were essential to his defense. That the loss of such documents is prejudicial seems self-evident.

To be sure, greater specificity in detailing how exactly Puntney’s defense would be compromised without the lost documents might have been preferred. Under the circumstances, however, we fail to see how any greater specificity could reasonably be required. For Puntney to have provided additional details would have necessitated that he refer to the particulars of the specific documents at issue, but those documents were no longer available for his review, and by the time he discovered they were lost, he had not even seen them for over a year and a half. This was through no fault of his own. According to Puntney’s allegations, it was entirely the product of circumstances created by, or attributable to, Bituminous. It was Bituminous which required Puntney, by contract, to surrender the relevant documents, and it was attorneys selected by Bituminous who were to blame for their loss. Thus, it is Bituminous itself which must be held accountable for Puntney’s inability to more fully set forth his defense. It wiH not now be heard to complain of a situation of its own making.

For the foregoing reasons, the order of the circuit court of White County granting summary judgment in favor of Bituminous on its declaratory judgment action is reversed, and the cause is remanded for further proceedings. On remand, the circuit court is directed to permit Puntney to amend the pleadings to add his first affirmative defense.

Reversed and remanded with directions.

HOWERTON, J., concurs.

JUSTICE CHAPMAN,

concurring in part and dissenting in part:

I concur in the result reached by the majority, but must dissent as to the paragraph beginning, “Even if the sufficiency of the allegations ***,” and ending, “Under these circumstances, we believe that the alleged acts and omissions of the attorneys are certainly imputable to Bituminous itself.” (212 Ill. App. 3d at 568.) I dissent from that portion of the opinion for two reasons: first, it is unnecessary to reach that issue since the preceding paragraphs clearly state the appropriate basis for reversal, and second, at this stage of the proceedings I do not feel that it is clear “that the acts and omissions of the attorneys are certainly imputable to Bituminous itself.” 212 Ill. App. 3d at 568.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ODELL JONES, Defendant-Appellant.
    Fifth District
    No. 5—89—0691
    Opinion filed May 8, 1991.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Odell Jones was charged with armed robbery and two counts of attempted murder. Following an August 14, 1989, bench trial on stipulated evidence, the St. Clair County circuit court found defendant guilty of armed robbery. The two counts of attempted murder were dismissed, and Jones was sentenced to 15 years in the Department of Corrections.

On September 13, 1989, Jones filed a motion for a new trial alleging, inter alia, that he had not entered into the stipulation voluntarily because he did not understand the nature of the charge and the possible penalties and consequences of entering into such a stipulation. Following a hearing the court denied defendant’s motion for a new trial. The issue on appeal is whether defendant’s stipulated bench trial was tantamount to a guilty plea and, therefore, must be vacated because he was not admonished pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402).

At the stipulated bench trial, defense counsel informed the court that the State had agreed to move to dismiss the attempted murder counts. Defense counsel informed the court that she explained to the defendant that a stipulated bench trial is not a plea of guilty, but is simply a stipulation of what the evidence would be if the case proceeded to trial. Without reiterating the stipulated evidence, we will assume for purposes of this appeal that Jones’ bench trial was tantamount to a guilty plea, thus necessitating Rule 402 admonishments.

Rule 402 provides in part:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary.” 134 Ill. 2d R. 402.

At a stipulated bench trial which is tantamount to a guilty plea, defendant is entitled to admonishments under Rule 402. (See People v. Horton (1991), 143 Ill. 2d 11.) The requirements of Rule 402 need only be substantially complied with to satisfy the requirements for due process. (People v. Walker (1985), 109 Ill. 2d 484, 498, 488 N.E.2d 529, 535, cert. denied (1986), 479 U.S. 995, 93 L. Ed. 2d 598, 107 S. Ct. 598.) The entire record will be considered to determine whether the defendant understood the nature of the charge or charges to which he was pleading. (Walker, 109 Ill. 2d at 499, 488 N.E.2d at 535, citing People v. Stewart (1984), 101 Ill. 2d 470, 484, 463 N.E.2d 677, 685.) In this case, after the prosecutor and defense counsel informed the court that they had agreed to a stipulated bench trial, the following exchange took place between the court and the defendant:

“THE COURT: Okay. Mr. Jones, do you understand what the attorneys have proposed or suggested here?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Any question at all in your mind concerning what the parties here, I assume including you, what you intend to do here today?
THE DEFENDANT: No, sir.
THE COURT: And is it your understanding that should you stipulate to the evidence that the State would be prepared to present against you, that in all probability it would result in a finding of guilty on the Armed Robbery count?
THE DEFENDANT: Yes, sir.
THE COURT: And based on that, is it your understanding that the State then would move to dismiss the two counts of Attempt Murder that they filed this morning?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Once again, do you understand that if w;e do this, of course, that there will not be a trial on the charge, meaning that the prosecutor will not have to bring into the courtroom any of the witnesses that she might have to testify against you?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And, of course, that will take away your right to have your attorney question or eross[-]examine those persons while they are here in the courtroom under oath. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And is it your understanding also that there have been no — there has been no agreement concerning any sentence that you might receive if you are convicted of the Armed Robbery?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And I believe that you recall possibly that if convicted of the Armed Robbery, you understand that you must be sentenced to the penitentiary?
THE DEFENDANT: Yes, sir.
THE COURT: It is a non-probationable offense. You can’t get probation.
THE DEFENDANT: Yes, sir.
THE COURT: The minimum sentence has got to be at least six years, the maximum sentence can be up to thirty years. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And that what I mean by that is, any sentence that you might receive if you are convicted has to be somewhere within six and thirty.
THE DEFENDANT: Yes, sir.
.THE COURT: And a possible fine of up to $10,000.
THE DEFENDANT: Yes, sir.
THE COURT: Any questions concerning any of that?
THE DEFENDANT: No, sir.
THE COURT: Okay. Anybody make any promises here to you that we haven’t discussed in the courtroom here just in the last few minutes?
THE DEFENDANT: No, sir.
THE COURT: Anybody on the other hand try to threaten you into stipulating here this morning?
THE DEFENDANT: No, sir.
THE COURT: Okay. Do you have a statement then of the stipulated evidence?
MRS. PORTER: Yes, Your Honor. One of the witnesses which will be called by the State if this case proceeded to a jury trial or a bench trial would be Earl Amerson.”

Jones contends that he did not understand the nature of the charge against him, the possible penalties, or the consequences of proceeding with the stipulated bench trial. Defendant argues that he did not understand that stipulating to evidence prevented him from cross-examining witnesses, and that he would not have proceeded with a stipulated bench trial had he realized that he could not cross-examine witnesses or present his own evidence. We find Jones’ arguments unpersuasive in light of the record.

The court admonished the defendant on the nature of the charges and the sentences that could be imposed. The court admonished Jones that he would be forfeiting his constitutional right to cross-examine witnesses. The court further determined that no threats or promises were made to Jones in exchange for his agreement to proceed with a stipulated bench trial. In addition, the court advised Jones “that in all probability it would result in a finding of guilty.”

The admonishing procedure followed by the trial court in this case, or one similar to it, is a wise one. Defendants are entitled to be properly advised of the consequences of their acts, whether they are entering a plea of guilty or stipulating to evidence for a bench trial.

The more clear the admonishment, the less the chance of confusion on the defendant’s part, and coincidentally the less the chance of a successful post-trial appeal on that point. The few minutes spent by the trial court in properly admonishing, defendants may save many hours of re-trials in the future. See People v. Sullivan (1979), 72 Ill. App. 3d 533, 391 N.E. 2d 241.

We find that the trial court substantially complied with Supreme Court Rule 402 in admonishing the defendant, and we affirm the defendant’s conviction.

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: PRESIDING JUSTICE RARICK

text:
    CARRIE L. KARR, Plaintiff-Appellant and Cross-Appellee, v. MICHAEL NOEL et al., Defendants-Appellees (Stanton Schiller, Defendant-Appellee and Cross-Appellant).
    Fifth District
    No. 5—89—0025
    Opinion filed May 7, 1991.

      Roy C. Dripps, of Talbert & Mallon, P.C., of Alton, for appellant.
    Robert S. Rosenthal, of Brown, James & Rabbitt, P.C., of Belleville, for appellee Bjong-Suhn Tschoe.
    Peter von Gontard and Ronald L. Vance, both of Shepherd, Sandberg & Phoenix, of Belleville, for appellee Stanton Schiller.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Carrie Karr, brought this action in the circuit court of St. Clair County to recover damages for alleged negligent treatment of a spider bite. Following trial, the jury returned a verdict in favor of the defendants, Bjong-Suhn Tschoe, M.D., and Stanton Schiller, M.D., and Karr appeals.

At trial, Karr testified that around 7 p.m. on July 26, 1982, she was bitten on the upper right thigh by what she believed to be a brown recluse spider. She went to the emergency room at Belleville Memorial Hospital and took the spider with her. She first saw Dr. Michael Noel and then saw Dr. Stanton Schiller. Karr told Schiller that she had been bitten approximately 30 minutes before, that she was pregnant, and that she had put ice on the bite before coming to the hospital. Schiller said he was unable to identify the spider and would call in a pathologist. When Karr saw Schiller again a short time later, she was told that he had spoken with her obstetrician, Dr. Burpo, and had sent the spider to a pathologist for identification.

As they waited for the pathology report, Schiller told Karr that if it was a brown recluse, they would excise the area and there would be a small scar. When he received the pathologist’s report, Schiller told her the pathologist was unable to determine if the spider was a brown recluse. Dr. Schiller then made an appointment for Karr with Dr. Bjong-Suhn Tschoe, a plastic surgeon, for July 28, 1982. Schiller also told Karr to call the doctor if any systemic symptoms, such as vomiting or dizziness, occurred. He also gave her two prescriptions, but she did not know what they were.

After leaving the hospital, the area of the bite began to grow in size and began turning purplish. This continued throughout the next day and by that evening, Karr began experiencing dizziness and nausea. When Karr saw Dr. Tschoe on July 28, 1982, he did not ask her what the spider looked like. When she asked if there would be a big scar if the wound were excised, he stated that it was too late at that point because of the size, and that he would have to wait to see how much would slough. At that point, he told her, he would excise the area and perform a skin graft. Tschoe had Karr return on August 2, 1982. He examined the bite, which was darkening and sloughing, but performed no further treatment. Tschoe had Karr return again on August 11, 1982, at which time he indicated that the area was as large as it was going to get. Tschoe admitted Karr to the hospital for the purpose of excising the area. Karr was also subsequently admitted to the hospital for the skin graft.

When Karr was released to go back to work on August 11, she was told her job was no longer available. She began seeking other types of employment and eventually found another job in July of 1983, 10 months after being released. Karr testified that as a consequence of the bite, she does not like going out in public, does not wear shorts, and does not go swimming anymore. She described the scar as quite ugly and said that if someone bumps her on that side it hurts.

Dr. Stanton Schiller testified that he was covering the emergency room at Belleville Memorial Hospital on July 26, 1982, when Karr came in complaining of a spider bite. He observed a red, raised area approximately two centimeters in diameter on her upper right thigh. While Karr was monitored for any systemic reaction, Schiller sent the spider to a pathologist and contacted Karr’s obstetrician, Dr. Burpo, regarding acceptable medication. Schiller received the pathologist’s report later that evening. The pathologist was unable to determine if the spider was a brown recluse, but indicated that it might be related to the loxosceles family, which includes the brown recluse. Schiller testified that he decided to treat Karr based on a worst-case scenario. Schiller then decided to consult with a plastic surgeon, and Dr. Burpo recommended Dr. Tschoe. Schiller called Tschoe and told him that Karr had been bitten approximately 30 minutes before coming to the emergency room, that she had a raised reddish area two centimeters in diameter on her thigh, and that, while the pathologist was unsure if 'the spider was a brown recluse, he thought it might be related to the loxosceles genus. Schiller scheduled an appointment for Karr with Dr. Tschoe for July 28, 1982, and told her to call Tschoe if she experienced any systemic reaction.

Dr. Bjong-Suhn Tschoe testified that on July 26, 1982, he received a call from Dr. Schiller and was told that he had a patient with an apparent brown recluse spider bite. He told Schiller to prescribe general comfort medication and local treatment such as ice. Schiller scheduled an appointment for Karr on July 28, 1982. When Tschoe saw Karr, he observed a 10-centimeter lesion. He explained to Karr his proposed course of treatment, but denied telling her that it: was too late to excise the lesion. Tschoe testified that he decided to treat the bite as if it were a brown recluse bite. The treatment plan was to watch Karr and treat her according to what developed. Tschoe testified that a majority of spider bites heal on their own and he wanted to see if this one would. He further testified that a certain percentage of brown recluse bites do not heal and excision of the tissue and a skin graft become necessary.

Tschoe had Karr return on August 2, 1982. He observed that the area was the same size but had grown much darker. He saw Karr again on August 11, 1982, at which time the lesion had begun to get hard. Tschoe felt the tissue had become necrotic and had Karr admitted to the hospital to remove the dead flesh in preparation for a skin graft. Karr was admitted to the hospital again on August 16, 1982, for the graft.

Dr. Robert Arnold testified as an expert witness for Karr. Arnold is a board-certified general surgeon and was the chief of surgery at Camp LeJune. He has authored numerous articles on spider bites.

Arnold testified that his practice for treating spider bites was to examine the bite and prescribe antibiotics, and monitor the patient on a daily basis. Usually, the bites would heal on their own, but if the area enlarged to one centimeter he would excise it. Arnold stated that he chose the one-centimeter benchmark because he felt this he could excise and stitch closed.

Arnold stated that if the area were two centimeters in diameter, he would put the patient on antibiotics and see him again that day or the next, and would probably go ahead and excise the bite. If the bite grew to three centimeters he would excise it immediately, or, if the area were red and swollen, he would prescribe antibiotics and excise it the next day. Arnold indicated that three centimeters was almost past the point where it could be closed without a graft.

Based on his review of the hospital records and the depositions of Schiller, Tschoe, and Karr, Arnold concluded that, based upon a reasonable degree of medical and scientific certainty, the defendants failed to exercise the degree of skill and care required in the situation. Specifically, Dr. Schiller should have insisted that Dr. Tschoe see Karr the evening of the 27th, and that was the latest Tschoe would have been justified in seeing her. The bite should have been excised then, so it could have been closed without a skin graft. Based on the pathologist’s report, the bite should have been treated as if it were a brown recluse bite. In any event, the report indicated that the spider was from the loxosceles family and the venom of all spiders in that genus has the same effect. In support of his opinions, Arnold listed nine medical texts which he considered authoritative.

On cross-examination, Arnold admitted that there was no deviation from acceptable standards of care in the treatment Karr received in the emergency room. He also admitted that doctors disagreed as to the appropriate method of treating brown recluse bites, but indicated that there was no disagreement as to whether they should be-excised. He stated that the goal of treatment is excision and primary closure, that is, closure of the excised area without a skin graft, and that there was no disagreement among physicians and authors as to whether to excise brown recluse bites. Defense counsel attempted to impeach Arnold with two texts, Emergency Medicine, which indicates that there is a concern about early excision, and Current Therapy, which indicates that excision and repair should be delayed until the area of necrosis is well delineated.

Dr. Lawrence Lewis testified as an expert for Dr. Schiller. Dr. Lewis stated that there were several acceptable ways of treating brown recluse bites, none of which were perfect, but that the general consensus was to treat the bite conservatively because most bites healed on their own. Lewis testified that a red, raised area alone did not justify excision, even if the area were two centimeters. Lewis also stated that the care given Karr in the emergency room met the standard of care for brown recluse bites.

Dr. Vernon Young, a board-certified plastic surgeon, testified on behalf of Dr. Tschoe. Young, who treats two to three brown recluse bites each year, indicated that his treatment plan would be to examine the person and, if possible, determine the type of spider, check the size and location of the bite and observe any reaction to it, give the patient a tetanus shot, and continue to observe the patient periodically and treat any long-term problem that developed. Young also stated that, while a majority of bites heal on their own, in some cases the tissue will become necrotic, necessitating excision.

Young also testified that his opinion was based in part on a review of medical literature on the subject of brown recluse bites. Young found that authors of texts which recommended early excision relied primarily on pre-1980 articles. Until that time, he found there was little controversy on the issue. After 1980, he found no articles recommending early excision. Plaintiff’s counsel pointed out several articles in Young’s file which recommended excision if the area of the bite was one centimeter or larger, and Young admitted that in a 1988 article, he wrote “early total excision appearing to be the only method offering any measure of success, and late manifestations are best treated by excision of all necrotic tissue followed by split thickness skin grafting.”

Karr first argues that the trial court erred in allowing Dr. Tschoe to testify that certain medical texts supported his opinion and were recognized as authoritative. Prior to Tschoe’s testimony, plaintiff’s expert, Dr. Arnold, was cross-examined with certain medical texts. Plaintiff objected on the ¡grounds that no foundation had been laid for the texts in question. The trial court overruled the objection based on defense counsel’s representation that later testimony would authenticate the texts. Tschoe’s testimony was used for this purpose. Because he did not describe any medical texts as authoritative in his deposition, Karr maintains, Tschoe should have been precluded by Supreme Court Rule 220 from testifying at trial that they were authoritative. We agree.

Supreme Court Rule 220, governing the disclosure and discovery of expert witnesses, provides in pertinent part:

“(b) Disclosure.
(1) *** In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party ***.
* * *
(c) Discovery.
(1) Upon interrogatory propounded for that purpose, the party retaining or employing an expert witness shall be required to state:
(i) the subject matter on which the expert is expected to testify;
(ii) his conclusions and opinions and the bases therefor; and
(ill) his qualifications.
* * *
(4) The provisions of paragraphs (c) and (d) hereof also apply to a party or an employee of a party who will render an opinion within his expertise at the time of trial. However, the provisions of paragraphs (c) and (d) do not apply to parties or employees of entities whose professional acts or omissions are the subject of the litigation. The opinions of these latter persons may be the subject of disclosure by deposition only.
* * *
(d) Scope of Testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 107 Ill. 2d Rules 220(bXl), (c)(1), (cX4), (d).

As a party whose professional acts were the subject of the litigation, Karr argues, Dr. Tschoe’s opinions were subject to disclosure by deposition under Supreme Court Rule 220(cX4). Because he did not identify in his deposition the medical texts in question as authoritative, his testimony at trial that they were authoritative exceeded the scope of his opinions disclosed in discovery in violation of section (d). The last sentence of section (d) is not applicable to the present case because Dr. Tschoe admitted that inquiry was made at his deposition as to what texts he relied on to form his opinion and he could not remember the names of any.

In Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, our supreme court considered the issue of whether a treating physician who will testify to a medical opinion at trial is an expert witness within the meaning of Rule 220(bXl). Relying on the language of subsections (bXl) and (f), our supreme court held treating physicians who testify to a medical opinion at trial are not expert witnesses within the meaning of Rule 220. The court reasoned that Rule 220

“obliges litigants to disclose the identity and opinions only of those witnesses who are engaged for the purpose of giving an expert opinion at trial. It may be said that the connection between a medical expert who is ‘retained to render an opinion at trial’ and the party to the suit may be litigation-related, rather than treatment-related. Treating physicians, on the other hand, typically are not ‘retained to render an opinion at trial’ but are consulted, whether or not litigation is pending or contemplated, to treat a patient’s physical or mental problem. While treating physicians may give opinions at trial, those opinions are developed in the course of treating the patient and are completely apart from any litigation. Such an opinion is not formed in anticipation of a trial, but is simply the product of a physician’s observations while treating the patient, which coincidentally may have value as evidence at a trial. In this respect, the opinions of treating physicians are similar to those of occurrence witnesses who testify, not because they were retained in the expectation they might develop and give a particular opinion on a disputed issue at trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation.” (Tzystuck, 124 Ill. 2d at 234-35, 529 N.E.2d at 528.)

Karr points out, however, that Tzystuck did not involve a treating physician who was a party to the litigation. In Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 546 N.E.2d 558, the treating physician was a party defendant and our supreme court, relying on its previous decision in Tzystuck, held that, as a defendant physician’s involvement in a case is clearly “treatment-related,” he is not an “expert witness” within the meaning of Rule 220(b)(1) and the disclosure provisions of Rule 220(b)(1) do not apply. (Fawcett, 131 Ill. 2d at 384-85, 546 N.E.2d at 560.) We note, however, that both the Historical and Practice Notes of Rule 220 and the language of section (c)(4) contemplate that a party may be an expert witness for some purposes. The Historical and Practice Notes provide:

“[Ujnder rule 220 a party or an employee of a party to the litigation may be an expert for certain purposes in the action. Note too that the rule contemplates that discovery from expert witnesses whose professional acts or omissions are not the subject of the litigation will be initiated- by interrogatories, which like interrogatories on other subjects can be answered by production of the relevant documents ***.
The rule does not purport to limit the opposing party to discovery from experts by interrogatories. It does, however, bar the use of interrogatories to elicit expert opinions from experts whose professional acts or omissions are the subject of the litigation, and limits discovery on those subjects from such experts to depositions.” (Emphasis added.) (Ill. Ann. Stat., ch. 110A, par. 220, Historical and Practice Notes, at 442 (Smith-Hurd 1985).)

Section (c)(4) of the rule provides that the opinions of parties whose professional acts or omissions are the subject of the litigation may be the subject of discovery by deposition only. (107 Ill. 2d R. 220(c)(4).) Yet, if we accept that Fawcett stands for the proposition that a defendant physician may never be an expert for the purposes of Rule 220, then the last two sentences of section (c)(4) of the Rule are rendered meaningless because a defendant physician whose acts or omissions are the subject of the litigation will always be a treating physician, and thus exempt from Rule 220. We can think of no situation where a physician whose acts or omissions are the subject of the litigation would not be a treating physician. Fawcett, however, dealt only with section (b)(1) and not sections (c) or (d). Fawcett stands only for the proposition that a defendant physician is not an expert witness for the purposes of section (bXl), and so need not be disclosed. A defendant physician may still be an expert witness for the purpose of sections (c) and (d). He is subject to discovery by deposition only, and the scope of his testimony at trial may not exceed that of his deposition testimony. In this case, Tschoe’s testimony that certain texts were authoritative clearly exceeded the scope of his deposition testimony.

Karr next argues that the trial court erred in allowing Dr. Young, Tschoe’s expert, to testify concerning articles published after 1982 as such material was irrelevant. The introduction of such material, Karr maintains, severely prejudiced her because after 1982 the drug Dapsone became available and its effect is to localize the effect of the bite, which renders early excision anachronistic. Consequently, articles written after 1982 would be more likely to recommend against early excision. Dr. Young testified that he was the author of an article which was published in the Annals of Plastic Surgery. Young indicated that when contacted about testifying in this case as an expert witness, he undertook a review of medical literature on the subject of brown recluse spider bites to determine whether the care he had been giving his patients was proper. He then determined that the subject would make a good review article. Dr. Young gave his opinion as to the recommended treatment based on his literature review and personal experience. The materials Young reviewed dated from 1967 to 1988. Young indicated that until about 1980, there was a controversy regarding whether the bite should be excised only, or whether it should be observed to see if any necrosis would develop and the dead tissue subsequently removed. He also indicated that there was a controversy as to what constituted early excision. Young then testified that, based upon his experience and review of the medical literature, he did not recommend early excision and, in explaining the basis for his opinion, specifically referred to two post-1982 articles — articles written after the development of Dapsone. Tschoe maintains that the articles in question were admitted not for the purpose of bringing the Dapsone research to the jury’s attention, but to point out that the accepted method of treatment changed around 1980 from early excision to allowing the bite to eschar before excision. Upon a review of Dr. Young’s testimony we find that on several occasions, Tschoe’s counsel asked Young what the recommended treatment was in 1982 and what treatment plan he recommended in his article. At one point, Young also indicated that, not considering Dapsone, treatment had not changed from 1982 to 1988. While Tschoe may have elicited this testimony to show that the standard of care changed in 1980, the effect of allowing Dr. Young to testify as to his opinion on the proper course of treatment set forth in his article, an article based on both pre-and post-1982 articles, was to place irrelevant and highly prejudicial evidence before the jury, and as a result this cause must be remanded for a new trial.

We must next determine whether the cause must be remanded as to both defendants, or only as to Dr. Tschoe. Where it is impossible to separate multiple defendants as to the prejudice engendered in the minds of the jury, justice requires a retrial as to all. (Bisset v. Village of Lemont (1983), 119 Ill. App. 3d 863, 457 N.E.2d 138; see also Meldoc Properties v. Prezell (1987), 158 Ill. App. 3d 212, 511 N.E.2d 861.) However, this is not such a case. The prejudicial evidence introduced by Dr. Young regarding post-1982 articles could have had no prejudicial effect on the jury’s evaluation of the treatment Dr. Schiller rendered in the emergency room. Based upon a careful review of the record, we find that remanding, the cause for retrial as to Dr. Schiller would be both unnecessary and unjust. The judgment as to Dr. Schiller is affirmed.

Karr also argues that the trial court erred in giving the instruction which states, “If you decide for the defendants] on the question of liability, you will have no occasion to consider the question of damages.” (Illinois Pattern Jury Instructions, Civil, No. 36.01 (2d ed. 1971) (hereinafter IPI Civil 2d).) We recognize, as Karr points out, that this instruction has been criticized as duplicative (see Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 449 N.E.2d 1358), but we are unaware of any authority, and Karr has cited none, which holds that the giving of such instruction is erroneous. Based upon our review of the record, we are not persuaded that the giving of IPI Civil 2d No. 36.01 in this case was an abuse of discretion. See Mattice v. Goodman (1988), 173 Ill. App. 3d 236, 527 N.E.2d 469.

Karr also argues that the trial court erred in denying her post-trial motion for a judgment notwithstanding the verdict and her motion for a new trial. A careful review of the record leads us to conclude that the plaintiff’s motions were properly denied. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Piano v. Davison (1987), 157 Ill. App. 3d 649, 510 N.E.2d 1066; Nunley v. City of Cahokia (1983), 115 Ill. App. 3d 208, 450 N.E.2d 363.

Schiller argues in his cross-appeal that the trial court erred in denying his motion for sanctions. Dr. Schiller’s motion for sanctions sought attorney fees and expenses based on plaintiff’s termination of the discovery deposition of Dr. Lewis. The trial court indicated that the plaintiff’s explanation for terminating the deposition, that Dr. Lewis did not bring his notes and files, was not acceptable, and that Dr. Schiller’s motion was well taken, but refused to impose monetary sanctions.

The imposition of sanctions for failure to comply with reasonable discovery practices is a matter left to the discretion of the trial court. (Plost v. Louis A. Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 378 N.E.2d 1176.) Based upon our review of the record, we find no abuse of discretion.

For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County as to defendant Schiller, and reverse and remand for a new trial as to defendant Tschoe.

Affirmed in part; reversed and remanded in part.

CHAPMAN and HOWERTON, JJ., concur.