author: JUSTICE SIMON JUSTICE MORAN,

text:
    (No. 53425.
    (No. 53547.
    JOYCE ANN MURPHY, Appellee, v. MARILYN URSO et al., Appellants.

      Opinion filed December 18, 1981.

    Rehearing denied January 29, 1982.

      MORAN, J., and GOLDENHERSH, C.J., dissenting.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Norman J. Barry, Jr., and Richard H. Donahue, of counsel), for appellant The Traveler’s Indemnity Company of Illinois et al.

    Raymond R. Cusack, of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellant Marilyn Urso et al.

    George T. Murphy, Jr., of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

These consolidated cases arose from the same incident — a traffic accident in which Joyce Murphy was injured when the van in which she was riding and which was traveling at excessive speed struck several parked cars. In cause No. 53547, Murphy sued the driver, James Clancey, and the van’s alleged owners, Marilyn Urso, operator of the Edgewater Pre-school, and Edgewater Primary School, Inc. She alleged that Clancey was negligent and that he was acting as the agent of the other defendants. Subsequently, Murphy amended her complaint by adding a second count against Urso and her schools alleging wilful and wanton or negligent entrustment of the van to Clancey. The plaintiff obtained a default judgment against Clancey, then brought a garnishment action (cause No. 53425) against the Travelers Indemnity Company of Illinois and the Travelers Insurance Company (Travelers), Urso’s business insurer.

The circuit court of Cook County granted summary judgment against Murphy on the grounds that Clancey was not operating the van within the scope of his employment and that Urso had not entrusted the use of the van to him. In the garnishment action, the court found that Travelers was estopped from denying insurance coverage of Clancey under Urso’s policy, because Travelers had refused to defend the suit against Clancey. The appellate court reversed Urso’s summary judgment and remanded the accident case for trial but affirmed the judgment, with one judge dissenting, against the insurer. (83 Ill. App. 3d 779.) This court granted leave to appeal under Rule 315 (73 Ill. 2d R. 315).

I

THE INSURANCE CASE: ARE THERE CONFLICTS OF INTEREST?

Chronologically, the first issue the various parties in these cases reached was whether Travelers had to defend Clancey in the suit filed against him by Murphy. The resolution of that issue is tied to the allegations of Murphy’s complaint and the potential liability it presented. To best examine the issue it is necessary to explore the procedural background of the two cases.

Clancey did not respond to the initial Murphy complaint, and after the appropriate length of time had passed a $750,095 default judgment was entered against him. Ms. Murphy then filed her garnishment suit against Travelers seeking payment from the business insurance policy issued to Ms. Urso’s schools. Ms. Murphy claimed in the garnishment action that Clancey was covered by the policy as a permissive user of the preschool’s bus. Travelers tried to deny coverage of Clancey on this ground, but Ms. Murphy urged that Travelers was estopped from denying coverage because it had failed to defend Clancey, its insured, in the underlying suit.

The garnishment suit lay dormant until the circuit court granted summary judgment against Murphy in the underlying accident case. At that point both Ms. Murphy and Travelers moved for summary judgment in the garnishment action. Travelers argued that the judgment in the accident case settled the question of Clancey’s authority to use the bus. But the circuit court held that Travelers was estopped from making any policy defenses and awarded the full amount of the default judgment, plus interest, to Ms. Murphy — a total of $854,000. This was in excess of the $100,000 policy limits.

The issue presented in this part of the appeal is whether Travelers was estopped from denying policy coverage. A guide to the levels of contention would be helpful in understanding the arguments and responses of Ms. Murphy and Travelers. First, she claimed that Travelers should pay the judgment against Clancey because, as the driver of the vehicle, he fell under its policy of insurance. Travelers responded that Clancey was not covered because he had no permission to use the bus at the time of the accident. Second, Ms. Murphy retorted that Travelers could not raise that defense because it had failed to provide Clancey with a defense in the accident case. It was therefore estopped from raising the question of permission and denying coverage. Travelers answered that it was not estopped because it had a conflict of interest with Clancey. Under existing Illinois law, such a conflict excused it from taking on Clancey’s defense itself. Third, Ms. Murphy claimed that the conflict of interest did not prevent Travelers from determining whether there was permission and thus policy coverage in a declaratory judgment action, and that Travelers should have taken that route rather than simply declining to give Clancey a defense. Travelers answered that such an action was inappropriate for a case like this, because of the procedural shifts that would occur and because of the effect of collateral estoppel. Fourth, Ms. Murphy countered that she did not mind the procedural shifts and that collateral estoppel would not have operated in any event. Travelers disagreed. Such are the four levels of argument involved in this segment of the appeal, although skirmishes occur in addition on every level.

The first level of argument is quickly disposed of. If the policy extended to Clancey, Travelers would be liable; the reason is Clancey’s negligence could not be realistically contested. Ms. Murphy, who stood in Clancey’s shoes for purposes of the garnishment action, conceded that the accident occurred when Clancey slammed into parked cars while rounding a corner too wide and too fast. No other factor was involved in the accident except perhaps Clancey’s sobriety — he and Ms. Murphy had spent 2J2 hours in a bar just before the accident. Here, therefore, the only question was policy coverage, and the parties clashed over whether Travelers would be permitted to raise its policy defense that Clancey was using the van without permission.

We thus move to the second level and begin our analysis of the case with the familiar general rule of estoppel. An insurer taking the position that a complaint potentially alleging coverage is not covered by a policy which provides that the insurer has the right and duty to defend any claims brought against the insured cannot simply refuse to defend the insured. It must defend the suit under a reservation of rights or seek a declaratory judgment that there is no coverage. If the insurer fails to do this, it is estopped from later raising policy defenses to coverage and is liable for the award against the insured and the costs of the suit, because the duty to defend is broader than the duty to pay. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 199.) But, this case turns on an exception to the general rule. An insurer must decline to defend where there is a conflict of interest between it and the insured. (Thornton v. Paul (1978), 74 Ill. 2d 132, 152; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 198-99.) Instead of participating in the defense itself, the insurer must pay the costs of independent counsel for the insured. (74 Ill. 2d 132, 162; 64 Ill. 2d 187, 199.) And, had Clancey requested a defense, Travelers would have been obligated to pay the costs. The starting point of analysis under either the general rule of estoppel or the exception is the same — the allegations of the complaint and the policy issued by the insurer. To these we turn.

Travelers issued a comprehensive insurance policy, including both general liability and automobile insurance sections, to the schools. The policy obligated the insurer to pay on behalf of the insured all damages due to bodily injury arising out of the use of, among other things, the van involved in the accident. The policy’s coverage extended to persons using the van with permission of the named insured. Travelers was given the right and duty to defend any suits against the insureds.

Ms. Murphy filed her initial complaint on August 10, 1972. Characterizing Clancey as the agent of Ms. Urso and the preschool, she charged the defendants, including Clancey, with wilful and wanton or negligent conduct, primarily due to Clancey’s driving. The default judgment against Clancey, who was served through the Secretary of State, was entered when he made no appearance.

Although an amended complaint was later filed which for the first time added a count alleging negligent entrustment, it was the first complaint that was on file when the failure to present any defense resulted in the default against Clancey. Thus it is that complaint alone to which we turn our attention. (La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 452.) It alleged that Murphy’s injury was caused by faulty driving of the preschool’s bus by an agent — therefore one with permission — of the named insured. The complaint presented the issues of negligence, causation, and the relationship between Clancey and Urso. Of these, the relationship between Clancey and Urso— raising the question of whether Clancey had permission to use the van — was the principal contested issue. The complaint presented a case of potential coverage, and the general rule of estoppel was triggered. Travelers learned of the suit against Clancey when Ms. Urso tendered the preschool’s defense to it, and it then had a duty to provide a defense to its insured, Clancey and the schools.

But which one? An analysis of the possibilities reveals the dilemma in which Travelers found itself. It controlled both defenses. To best defend the preschool, it would try to show that Clancey did not have permission to use the bus at the time of the accident. To do this, it had to show either that he had been discharged or in any event was not operating within the scope of his employment, or that he had no explicit or implicit approval to use the bus. This would sever any connection between the preschool and Clancey, place all the liability on Clancey, and exonerate the school. But to best serve Clancey, Travelers had to try to show that he did have permission to use the bus. This would spread the liability to the schools. It was in Clancey’s interest, then, to show that he had not been fired and that his use of the bus was within the scope of his employment, or that he had received approval for the use of the bus to help Ms. Murphy move.

The interests of Ms. Urso’s schools and Clancey in how the suit was to be defended were diametrically opposed, creating an ethical conflict for Travelers, which was charged with providing a full and vigorous defense to each. (See 79 Ill. 2d, Code of Professional Responsibility, R. 5—105.) In order to defend either the schools or Clancey, Travelers had to resolve the conflict and pick a strategy of defense. How could it do so for one without harming the other?

But Travelers had an even more fundamental problem— the conflict between its own interests and Clancey’s. If it could prove Clancey had not been negligent, or did not cause the accident, strategies which would probably be unsuccessful, Travelers could sidestep the conflict of interest and proceed with a defense of both the schools and Clancey. But failing that, Clancey’s interest lay in siding with the plaintiff and shifting liability to Ms. Urso’s schools so that the insurance would pay any judgment Ms. Murphy was awarded against Clancey. Travelers’ interest lay in separating Clancey from the schools so that he would bear the entire liability. The balance hung, again, on what could be proved about permission — the scope of Clancey’s employment and the extent of his approval to use the bus. The permission issue presented a fundamental conflict between the insurer and the putative insured (Clancey) whose interest it controlled. (See 79 Ill 2d, Code of Professional Responsibility, R. 5—101.) How could Travelers control Clancey’s defense, acting on his behalf, when Travelers’ interest would be best served by placing all the blame on Clancey?

The exception to the general rule of estoppel provided a way out of Travelers’ ethical labyrinth. As stated above, it provides that, because of the serious ethical problems involved, the insurer facing a conflict of interest with its insured in the conduct of the insured’s defense is not obligated or permitted to participate in the defense. (Thornton v. Paul (1978), 74 Ill. 2d 132, 152; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 198.) Travelers had only to underwrite the costs of whatever defense Clancey chose to make. (74 Ill. 2d 132, 152.) It makes no difference that here the confict was with a putative insured instead of directly with the named insured, as in Thornton and Peppers. An argument over exclusion from policy coverage is, for these purposes, really no different from an argument over inclusion. The particulars of the conflict of interest do not matter, only the fact that there is a conflict at all. The insured has the right to be defended by counsel of his own choosing. A ruling that required an insured to be defended by what amounted to his enemy in the litigation would be foolish.

But the plaintiff, at the third level of argument, claims that the insurer should still have been estopped here, because she contends that this is not the kind of case the exception was created for. She asserts that while the conflict of interest may have foreclosed a defense under a reservation of rights, the insurer could still have resolved the question of coverage prior to choosing a strategy of defense by bringing a declaratory judgment action. This would have resolved whether Clancey had permission to use the van, and the reasons for the conflict with Clancey would have disappeared, allowing Travelers to then undertake his defense in the suit brought by Ms. Murphy. Because it did not seek a declaratory judgment and did not defend Clancey, the plaintiff asserts, Travelers should now be estopped from denying that Clancey was covered by the policy.

But a declaratory judgment action was not an acceptable vehicle here. Where the issues in an underlying suit and a declaratory judgment action are separable, deciding the question of coverage in a collateral proceeding prejudices no party. The situation changes when the issues are substantially the same, as in this case where the principal contested issue is Clancey’s permission to use the van. (Note, Use of the Declaratory Judgment to Determine A Liability Insurer’s Duty To Defend—Conflict of Interests, 41 Ind. L.J. 87, 106 (1965).) The doctrine of collateral estoppel would be applicable, and consequently the result of the declaratory judgment would be controlling in the underlying suit, especially on the issue of whether Urso and her schools could be held liable on the only theory alleged in the original complaint—agency. (Williams v. Madison County Mutual Automobile Insurance Co. (1968), 40 Ill. 2d 404, 407.) Declaratory judgment would be only a forerunner of the accident trial, and would resolve nothing different.

There is no reason in such a case to require the insurer to engage in a useless and unnecessary exercise. Declaratory judgment in this setting would be premature. (Allstate Insurance Co. v. Gleason (1964), 50 Ill. App. 2d 207, 215, cited in Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 197.) It would also prejudice the insurer by forcing upon it, as plaintiff, the burden of proof. Normally an insurer is not forced to take on this burden, but has the option as well of electing instead to defend under a reservation of rights, an option that is closed to the insurer here because of the conflict of interest.

As Thornton put it:

“In such a proceeding, an issue crucial to the insured’s liability in the personal injury action *** would be determined in a purely ancillary proceeding with the plaintiff and defendant in the personal injury action both aligned on the same side as defendants in the declaratory judgment action. Also, the order and burden of proof would be oriented to and dictated by the declaratory judgment action and not by the primary litigation, the personal injury suit.” (74 Ill. 2d 132, 159.)

The plaintiff would also be prejudiced by losing the opportunity to control the venue and timing of the suit, an important consideration where court calendars are clogged. Because the doctrine of collateral estoppel would preclude relitigation of the only issue in the case which could realistically be contested, whether Clancey had permission to use the van when the accident occurred, Travelers should not have been required to institute a declaratory judgment action.

The plaintiff says that she would have accepted the procedural disadvantages. To buttress her contention that Travelers was obligated either to resolve the question of coverage through a declaratory judgment action or defend Clancey, she advances to the fourth and final level of argument, contending that collateral estoppel would not have operated here because the issues would not be the same in both proceedings.

She is mistaken. Collateral estoppel operates at least where there is an identity of parties and issues. (Smith v. Bishop (1962), 26 Ill. 2d 434, 437.) Those requirements would have been satisfied here. The parties in a declaratory judgment action would have been the insurer, Ms. Murphy, Clancey, Ms. Urso and the schools. In the accident case the parties are the same except for the insurer. But because the insurer has the duty to control the defenses of its putative and named insured, it too would have been estopped by a declaratory judgment. (See Greenlee v. John G. Shedd Aquarium (1977), 66 Ill. 2d 381, 385; Smith v. Bishop (1962), 26 Ill. 2d 434, 439 (Schaefer, J., dissenting).) There was, therefore, identity of parties.

There was also identity of issues. A declaratory judgment action would have decided whether Clancey was covered by the policy. That depended on whether he had permission to drive the bus at the time of the accident, and would hinge on whether he had been fired, the scope of his employment if he had not been fired, and whatever approval he had obtained to use the bus to help Ms. Murphy move. The principal issue in the accident case was identical. Ms. Murphy would be litigating precisely the same issue in each case-permission in its various guises.

To summarize, we work our way back through the levels of argument. Collateral estoppel would have applied if a declaratory judgment action was brought, and so such an action would have been premature, not a viable alternative for the insurer. The accident trial would only have been a rerun of the insurance trial, duplicating the issues under a different set of burdens. Travelers, which had a conflict of interest with Clancey, was not required, therefore, to bring a declaratory judgment action to determine coverage. At the same time, it could not defend under a reservation of rights because it was caught in the conflict of interest between the schools, Clancey, and itself. Travelers’ only option was to decline to defend Clancey itself, remaining liable for the costs of whatever defense Clancey himself chose to make. Because it was not allowed to defend Clancey, it was not estopped from denying coverage in the garnishment action even though Clancey had suffered a default. The exception announced in Thornton and Peppers to the general rule of estoppel controls this case.

The plaintiff’s last contention seeks to distinguish Thornton and Peppers on the ground that here a defense was never tendered for Clancey by anyone. Plaintiff decries the prejudice that Clancey thus incurred — because of the conflict of interest the insurer did not defend him and when Clancey himself did not appear, no defense was made on his behalf. Thus, Clancey suffered a substantial judgment against him, and Travelers has escaped having to pay the costs of a defense. We acknowledge the windfall to Travelers, but point out that it happened solely because Clancey defaulted by failing to appear or to request Travelers to defend him. If Clancey had such a low regard for his own rights, the windfall that Travelers received is no reason to alter either the general rule of estoppel or the exception to it triggered by a conflict of interest.

For the reasons stated, this case falls within the exception enunciated in Thornton. Conflicts of interest with the putative insured relieve the insurer from his defense. But this exception is not meant to swallow the general rule requiring the insurer to provide its insured with a defense when the coverage is potential. Only where actual conflicts of interest appear is the general rule relaxed. Such a conflict exists here. The summary judgment in favor of Murphy in the garnishment action is therefore reversed. The policy defense to coverage on the basis of nonpermissive use — the very first point of argument — is yet to be litigated by the parties. The garnishment action must therefore be remanded to the circuit court for further proceedings in which Travelers may assert its policy defenses with respect to whether Clancey had permission to use the vehicle at the time Ms. Murphy was injured.

II

THE ACCIDENT CASE: ARE THERE ISSUES OF FACT?

The underlying action (cause No. 53547) was submitted to the circuit court on both the plaintiff’s and the defendant’s motions for summary judgment and on the affidavits and depositions of various witnesses. Because of the issues raised it is necessary to discuss the evidence in more detail.

Clancey was not deposed and did not file any affidavits. As a result his side of the story has never come to light. Clancey’s driving record was presented by the plaintiff. It showed three convictions for speeding and another for failure to yield the right-of-way. Clancey’s license had been suspended for 2 months at one point and was revoked after the accident.

Ms. Murphy was the passenger in the van when it crashed. As plaintiff, she offered affidavits and also a copy of her deposition. She said in the deposition that the accident occurred after a long evening of moving furniture. Two weeks before, Clancey had told her that he would have the use of two of the preschool’s buses to help her move. Ms. Murphy had ridden with Clancey in the buses before as a passenger and accepted his offer of assistance. She, her roommates, several friends, and Clancey began moving at 5:15 p.m. on September 1,1971; they retired to a nearby pub about 11 p.m. to relax after most of Ms. Murphy’s furniture had been moved. Two vans from the Edgewater Pre-school had been used in the moving, and everyone but Ms. Murphy and Clancey drove home in one about 12:45 a.m. Around 1:30 a.m. Ms. Murphy and Clancey got into the remaining van to drive the few blocks home, but Clancey turned too wide and too fast and slammed into parked cars. Ms. Murphy blacked out and woke up on someone’s lawn. She suffered various injuries, including a broken pelvis and a concussion.

Marilyn Urso, a defendant, was president of Edgewater Pre-school, Inc., and a principal shareholder in Edgewater Primary School, Inc. The bus involved was a van, one of three owned by the preschool. Clancey worked for the preschool as a bus driver. The three buses each made three runs each day: one in the morning, another at noon, and a third in the evening. At the end of each run the drivers were to take the buses to a service station and park them there. The keys were kept in the station office.

Ms. Urso stated that the bus drivers were never permitted to use the vehicles for personal reasons and that Clancey did not receive permission to use the bus the night the accident occurred. She knew of no occasion when Clancey had ever before used the bus for his own personal reasons.

According to Ms. Urso, Clancey was fired the day before the accident. The preschool’s enrollment was down and Ms. Urso thought Clancey was the least promising prospect among the drivers. The actual discharge was handled by Joanne Chandler, the director of the preschool. In an affidavit Ms. Urso said that Clancey had been fired, took the bus without her consent, permission or knowledge, and was using it to move furniture, a purpose totally unrelated to its designated use to transport students.

Joanne Chandler’s deposition was offered by Ms. Urso. In it, Ms. Chandler said that Clancey was supposed to report to her. The buses were supposed to be parked at the station when not out on a run. Twice she had received word that the bus Clancey drove had been seen out at night, and had reported the incidents to Ms. Urso. She and Ms. Urso confronted Clancey with the reports. He admitted using the bus once for personal reasons but denied the second report. Clancey was told not to remove the bus from the station again after working hours. Ms. Chandler favored firing Clancey but was overruled by Ms. Urso. Ms. Urso called the service station and said that the buses were to be parked there after the evening runs and that no one was to remove them until the next morning.

According to Ms. Chandler, Clancey was fired before his noon run the day of the accident. Clancey had completely missed his morning run. When Clancey arrived at the school, Ms. Chandler told him that she thought he was totally unreliable and that as far as she was concerned he was terminated then and there. Clancey was given his accrued wages by check, and he threw the keys to the van on Ms. Chandler’s desk. Ms. Chandler told Ms. Urso by phone that she had fired Clancey. At the time Clancey left, the van was parked at the service station. Ms. Chandler took its keys home with her that night, only to learn the following day of the accident. She did not know how it had been driven, since she had the keys.

Pamela Sabo was one of Clancey’s fellow drivers. In a deposition offered by the plaintiff, she characterized Clancey as a wild man who liked to take chances but who did not have very good luck.

Ms. Sabo reported to Ms. Chandler. Ms. Sabo said she had been told by Ms. Chandler that the bus she drove belonged in the station on weekends. The rest of the time Ms. Sabo parked it as close to her home as possible, so she could get at it easily the next morning. Clancey followed a similar practice. During the day, the bus was there for Ms. Sabo’s personal use. She at times used it to run errands, once including an errand for Ms. Urso. Ms. Sabo thought that Ms. Urso and Ms. Chandler knew what was going on — she felt that the authorization for the personal use of the vehicles was implied, because she was never told not to do it. At one point either Ms. Urso or Ms. Chandler told her that if she were going to use the bus for personal reasons she would have to put gas in it. Only after the accident was the word passed that the buses were to be kept in the station when not out on a run.

Ms. Sabo said that on the day of the accident she helped Joyce Murphy move her furniture. She halted about 3:30 or 4 p.m. and returned the bus to the preschool for the evening run. Clancey had also been moving furniture with his bus; Ms. Sabo could not remember if Clancey followed her back to the preschool for the evening run. But nothing out of the ordinary occurred in taking the children home that day, so Ms. Sabo assumed that Clancey made his evening run. She met him back at the apartment where the furniture was being removed. Clancey had his bus with him again.

Ms. Sabo said that Clancey told her he received permission from Ms. Urso to use the buses to help move Ms. Murphy’s furniture, and that he was surprised that he had received Ms. Urso’s approval. He told Ms. Sabo that he was surprised that “she didn’t give him any grief.”

The plaintiff offered the affidavit of Sue Tario, although Tario’s exact relationship with the parties was not explained. Ms. Tario said that following the accident Thomas Coleman, Clancey’s replacement, used his bus on one occasion to drive her to the theatre. Thomas Coleman’s affidavit was also offered by the plaintiff.

Before the accident he learned that Clancey was planning to quit driving for the preschool on September 15, 1971. Coleman and Ms. Urso arranged for Coleman to take Clancey’s place beginning on that day. A few days before the accident Coleman reconfirmed his starting day with Ms. Chandler. On the day of the accident Coleman saw Clancey driving the bus with furniture in it. The next day Ms. Urso called Coleman and asked him to start early because of the accident. Coleman started as a driver on September 2.

Additional evidence before the circuit court should also have been considered. The circuit court struck several sentences in the affidavits of the plaintiff, Ms. Sabo, Ms. Tario, and Coleman for failure to comply with Rule 191 (73 Ill. 2d R. 191). But the court’s action was too broad. It swept up the good with the bad. The court was correct to strike those portions of the affidavits which were mere conclusions instead of facts admissible in evidence. (Wanous v. Balaco (1952), 412 Ill. 545, 547.) But only the tainted portions of the affidavits had to be struck. Where a phrase or clause was conclusional it had to be excised, but the remaining portions of the affidavits could be, and should have been, saved.

For example, when Ms. Tario swore in her affidavit that she saw Clancey driving the bus at 3:30 p.m. on the day of the accident on his job as a bus driver for Ms. Urso, only the italicized portion of the statement had to be struck as a conclusion or an unfounded opinion. But the affiant was competent to testify to those things that she personally saw. Her statements of personal observation should not have been stricken. Likewise, statements by Clancey or Ms. Urso that an affiant repeated were inadmissible as hearsay and correctly stricken, but personal observations of the declarants apart from the words spoken could be and should have been considered.

The following portions of the affidavits should thus also have been considered on the motions for summary judgment.

Sue Tario saw Clancey driving the bus on September 1 at about 3:30 p.m. Ms. Tario saw Clancey and Thomas Coleman together at the scene of the accident early on September 2. Clancey tried to give his keys to Coleman.

Thomas Coleman had seen Clancey twice use the bus to drive to the theatre with friends. Coleman saw Clancey driving the bus on Clancey’s route on September 1 at about 3:30 p.m. and again at 5:30 p.m. Coleman saw Clancey driving the bus with furniture in it again at 10 p.m. After the accident Clancey talked with Coleman. Once Coleman started working for the school as Clancey’s replacement, he parked the bus he was driving wherever he pleased, kept the keys in his posession, and used it for personal reasons, including trips to the theatre and grocery store.

The evidence before the circuit court justified only a partial summary judgment. Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), summary judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Schedlerv. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 13; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380.) The affidavits and depositions are to be construed against the moving party. Because summary judgment is such a drastic method of disposing of a case, it should not be employed unless the right of the moving party is free from doubt. See Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 61.

Count I alleged the negligence of an agent, and the only real issue under that count so far as the liability of Urso and the schools is concerned was whether Clancey was acting within the scope of his employment at the time of the accident. The defendants presented evidence through Ms. Urso’s affidavit and deposition and through Ms. Chandler’s deposition that the scope of the drivers’ employment extended only to driving the children to and from the schools. Ms. Sabo’s deposition contradicted that assertion in part, Sabo claiming that she had at times run errands for Urso. But there was no contradiction of Urso’s affidavits that the bus drivers’ duties did not extend to helping friends move furniture. Thus, even if Clancey had not been fired, as Ms. Murphy contends, moving her furniture would not have been within the scope of his employment. While there were conflicts on the question of whether the drivers had received permission to use the buses for personal reasons and the precise time when Clancey was fired, conflicts on which the appellate court relied to deny summary judgment on count I, there was no disagreement on the scope of Clancey’s employment and that it did not include the assistance he rendered to Ms. Murphy. Accordingly the evidence that in driving the bus at the time of the accident Clancey was not acting as an agent of Urso or the schools so as to make them liable was uncontradicted. Because there was no genuine issue of material fact to be tried on count I, summary judgment was proper, and the appellate court erred in remanding this count for trial.

Count II alleged wilful and wanton or negligent entrustment; we agree with the appellate court’s determination that summary judgment on this count was not proper. This cause of action required at least that the plaintiff show that the vehicle was entrusted with the owner’s approval. Neither party showed a case free from doubt because neither resolved the problem of permission to use the bus for personal reasons. Ms. Urso claimed that Clancey had stolen the vehicle, that he had been fired before the accident. Ms. Chandler agreed that Clancey had been fired, but the two could not settle, in their depositions and affidavit, on a common date or reason for the firing. In addition, there was evidence that the September 1 evening run went smoothly, without the disruption likely to occur if one of the three drivers employed by the schools had been missing. Thus, there appears to be a conflict over whether Clancey had been fired.

There was also conflict over whether, if Clancey had not been fired, he had permission to use the bus. Customary personal use of the buses was adamantly denied by Ms. Urso and Ms. Chandler but asserted by Ms. Sabo, Ms. Tario, and Coleman. Ms. Murphy and Ms. Sabo said they were told by Clancey that he had Ms. Urso’s approval to use the bus, but the statements are of dubious admissibility. Nevertheless, Ms. Sabo also participated in the moving, using the school bus which she drove. She testified that Ms. Urso and Ms. Chandler knew about the personal use of the buses by the drivers and sanctioned it because they never stopped this use. On this record, it is impossible to say that the bus either was or was not entrusted to Clancey with Ms. Urso’s approval without resolving the witnesses’ credibility.

Issues of triable fact remain only on count II. On that count the cause must be remanded to the circuit court for further proceedings. On count I, however, partial summary judgment should have been granted.

CONCLUSION

In cause No. 53425, the judgments of the circuit and appellate courts are reversed and the cause is remanded to the circuit court for further proceedings. In cause No. 53547, the judgment of the circuit court is affirmed as to count I but reversed as to count II. The judgment of the appellate court is reversed on count I but affirmed on count II. The cause is remanded to the circuit court for further proceedings on count II.

53425 — Reversed and remanded. 53547 — Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded.

JUSTICE MORAN,

dissenting:

I agree with the majority’s conclusion that the insurer’s interests conflicted with that of Clancey, initially preventing the insurer from defending Clancey in the personal injury action. I believe, however, that the insurer should have sought a declaratory judgment to resolve the conflict and to determine its obligations under the policy.

In Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, this court examined the propriety of seeking a declaratory judgment to determine coverage and, consequently, the duty to defend under two policies of insurance. The policies specifically excluded coverage for injuries intentionally inflicted. The underlying personal injury action brought by the plaintiff Mims against the defendant Peppers resulted from a shooting which took place when Mims apparently attempted to break into a Pizza Hut restaurant owned by Peppers. The trial court, in the declaratory judgment action, found that Peppers had intentionally caused injury to Mims and that, therefore, no coverage was available under the insurance policies. This court reversed the trial court’s finding of intentional injury in the declaratory judgment action, holding that it was an abuse of discretion and that such action was “premature.” This court also found that the declaratory judgment action was improper because “[t]his issue was one of the ultimate facts upon which recovery is predicated in the Mims personal injury action against Peppers.” Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 197.

Similarly in Thornton v. Paul (1978), 74 Ill. 2d 132, the question of the insurer’s obligation to defend the insured, as well as coverage under the policy of insurance, turned upon the classification of the insured’s action as a “battery” or as an intentional act. (See Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365.) The policy covered only acts unintended by the insured and specifically excluded coverage for personal injury “arising out of assualt or battery,” In determining whether the insurer must seek a declaratory judgment as to its obligations, this court followed Peppers and found that such an action would be premature.

“[I]f a court were to determine in a declaratory judgment action that the insured’s conduct did not come within the coverage of the policy because it constituted a battery, this declaration would be binding on the insured in the personal injury action between the injured party and the insured, and would in all probability be determinative of the issue of liability in that suit.” Thornton v. Paul (1978), 74 Ill. 2d 132, 157.

Consequently, the court held that the insurer was not obligated to seek a declaratory judgment as to its obligations under the policy and, further, that the insurer’s refusal to defend the insured in the personal injury action did not estop it from asserting defenses of noncoverage in the garnishment proceedings.

The majority erroneously applies the above reasoning as to the appropriateness of a declaratory judgment action to the present circumstances. Unlike Peppers and Thornton, the question determinative of coverage under the policies here is not the ultimate issue of fact in the underlying personal injury suit brought by Murphy. The majority correctly sets out the general rule: “Where the issues in an underlying suit and a declaratory judgment action are separable, deciding the question of coverage in a collateral proceeding prejudices no party.” (88 Ill. 2d at 455.) In the present case, a declaratory judgment action to determine coverage under the policies of insurance would have focused solely on the issue of agency — that is, whether Clancey drove the van with the permission of the owners. This issue is separable from the ultimate issue of the underlying personal injury suit, the negligence of Clancey. The resolution of the agency issue would not in any way prejudice Clancey or Murphy in regard to the issue of Clancey’s negligence in driving the van. Moreover, once the agency issue is determined, the insurer’s previous alleged conflict of interest with Clancey no longer exists. If coverage under the policy is found to exist, the insurer may then defend Clancey on the issue of his negligence. The interest of both the insurer and Clancey would be the same — to find Clancey not guilty of negligence so as to avoid all liability.

I believe that the insurer’s failure in the present case to seek a determination of its obligations under its policy in a declaratory judgment action should estop it from denying that Clancey was covered by the policy in the garnishment proceeding. This court’s expansion of the Thornton rule allowing an insurer to escape its obligations to defend under a policy of insurance creates a dangerous precedent seriously diluting the contractual obligation of an insurer to defend an insured under an express promise to do so.

CHIEF JUSTICE GOLDENHERSH joins in this dissent.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 54168.
    ANTHONY CLEMMONS, Appellee, v. THE TRAVELERS INSURANCE COMPANY, Appellant.

      Opinion filed December 18, 1981.

      Eugene L. White and Phillip B. Lenzini, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellant.
    Allen, Clark 8c Gullinan, Ltd., of Peoria (Gary L. Clark, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The Travelers Insurance Company refused to defend Dennis Reed when Reed was sued in the circuit court of Peoria County by Anthony Clemmons for injuries received in an automobile accident. Clemmons had been a passenger in a car driven by Reed when it collided with another automobile. The car Reed was driving was insured by Travelers and owned by the American National Red Cross. A default judgment was entered against Reed; Clemmons then sued Travelers to collect the judgment from it. The circuit court granted summary judgment to Clemmons, holding that Travelers’ failure to defend Reed estopped it from denying that its policy coverage extended to Reed’s accident. The appellate court affirmed (88 Ill. App. 3d 201), and this court granted leave to appeal pursuant to Rule 315 (73 Ill. 2d R. 315).

A chronology of the events in this case begins with the accident in the early morning hours of August 26, 1975, in which Clemmons was injured. Dennis Reed worked as a blood distributor for the Peoria chapter of the Red Cross on the night shift. The Red Cross left an automobile at his disposal for orders for blood which required immediate delivery. This car, driven by Reed and carrying Clemmons as a passenger, struck another vehicle after running a stop sign. The accident occurred at 12:12 a.m. during Reed’s regular hours; however, Reed had received no orders that night requiring immediate delivery.

Within a week of the accident, Travelers advised Clemmons that it would pay his medical bills, up to $2,000, under the comprehensive automotive liability policy issued to the Red Cross. The policy obligated the insurer to pay all damages due to bodily injury arising out of the use of the Red Cross car; this coverage extended to those persons using the automobile with the named insured’s permission.

Shortly thereafter, Travelers informed Clemmons that it was denying liability and would refuse to defend any suits against Reed. Travelers took the position that Reed had been operating the Red Cross automobile without permission and outside the scope of his employment and was therefore not covered by the policy.

On June 21,1977, Clemmons filed a complaint charging Reed with negligent driving. The Red Cross was not included as a defendant. Soon after Reed was served on February 2, 1979, Travelers received a note from Reed, together with the summons served on him and a copy of the Clemmons complaint. On February 23, 1979, Travelers advised Reed in writing that it refused the tender of Reed’s defense and that he would have to answer the Clemmons complaint by March 2,1979. Reed did not. On May 4,1979, the court entered a default judgment against Reed for $100,000.

Clemmons then filed the present action against Travelers, seeking a declaration that the insurer had wrongfully refused to defend Reed and that it was therefore required to pay Clemmons the amount of his judgment against Reed. Travelers, contending Reed was not covered by the policy, denied that it had a duty to defend him. The circuit court’s summary judgment in Clemmons’ favor was for the full amount of his judgment plus interest.

I

The substantive issue is whether Travelers was estopped from denying that Reed was covered by the policy it issued to the Red Cross. Discussion of that problem must begin with Murphy v. Urso (1981), 88 Ill. 2d 444, decided this term, a case remarkably similar to this case in its facts and procedural course. Both are auto accident insurance cases involving attempts by injured passengers to collect from insurers default judgments imposed against the drivers of the vehicles in which they were injured. Travelers, the insurer in each case, issued a policy to the owner of the vehicle involved covering both the named insured and those using the vehicle with the permission of the named insured. In each case the driver of the vehicle was or had been employed by the named insured. In Murphy the named insured denied that the vehicle was being used within the scope of the employment or with its permission at the time of the accident. In this case the insurer advanced the same denial.

In each case the driver was served but did not appear. In each case Travelers offered the driver no defense. In each case a default judgment was entered against the driver which the plaintiff seized upon to garnishee Travelers under its insurance policy. In each case Travelers tried to deny coverage but was held estopped in the circuit court by its failure to defend the putative insured.

Murphy restated the general rule of estoppel that applies when an insurance policy grants the insurer the right and duty to defend suits brought against the insured. When a complaint against the insured alleges facts within or potentially within the scope of the policy coverage, the insurer taking the position that the complaint is not covered by the policy must defend the suit under a reservation of rights or seek a declaratory judgment that there is no coverage. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 199.) If the insurer does not, it is later estopped from denying coverage in a suit to collect the judgment. Murphy addressed an exception to the general rule, explaining that when there is a conflict of interest between the insurer and the putative insured, the insurer may decline to take over the insured’s defense itself, and may do so without making a reservation of rights or seeking a declaratory judgment on coverage, but the insurer remains liable for the costs of the putative insured’s defense. Murphy v. Urso (1981), 88 Ill. 2d 444, 451-52.

A

Travelers’ first argument is that it did not have a duty to defend Reed, the putative insured, because the complaint filed by Clemmons against Reed did not raise an issue of potential policy coverage. Clemmons alleged the time, location and cause of the accident, identified the Red Cross as the owner of the car involved and Reed as the driver. However, the problem, according to Travelers, is that Clemmons did not allege that Reed was driving the automobile with the permission of the Red Cross. (Cf. Murphy v. Urso (1981), 88 Ill. 2d 444.) Although a line of cases stretching back to Hays v. Country Mutual Insurance Co. (1963), 28 Ill. 2d 601, 606, and Soukup v. Halmel (1934), 357 Ill. 576, 579, holds that permission is essential to prove a cause of action under a policy like the one here, it is not necessary for a complaint to allege permission in order to trigger the duty to defend. “If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy the duty to defend has been established.” (Emphasis added.) (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193.) Under the allegations of this complaint, there clearly was the possibility that Reed was driving his employer’s automobile with permission, and whether that was a fact was a matter for later investigation by Travelers. Nothing in the complaint suggested that coverage did not exist.

Travelers, though, points to an unsworn accident report it knew of at the time it refused to defend in which Reed allegedly stated that he did not have permission to drive the Red Cross car at the time of the accident. This report does not justify a decision by Travelers to deny Reed a defense; the duty to defend must be determined solely from the language of the complaint and the policy. (Thornton v. Paul (1978), 74 Ill. 2d 132, 161.) But beyond that, the report should not have been given credence because, as a layman, Reed was probably unaware of the expansive view of permission Illinois law has taken. This court has held that a deviation from the authorized use does not terminate the permission initially given by the named insured. (Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333, 341; see also Western States Mutual Insurance Co. v. Verucchi (1977), 66 Ill. 2d 527, 530-31; United States Fidelity & Guaranty Co. v. McManus (1976), 64 Ill. 2d 239, 242.) Reed’s accident report was not enough to dispel the potential for coverage raised by Clemmons’ complaint.

B

Travelers next contends that even if the complaint against Reed raised a potential issue of coverage, it should not have triggered the duty to defend because Reed was not the named insured in the policy. Travelers argues that extending the duty to defend to putative insureds as well as named insureds increases the insurer’s risks far beyond the insurer’s reasonable expectations at the time the policy was issued. It contends that where the duty to defend is involved, a distinction should be made between those cases raising an issue of policy exclusion and those in which the issue is policy inclusion.

The issue was addressed in Murphy, where we said:

“An argument over exclusion from policy coverage is, for these purposes, really no different from an argument over inclusion.” (88 Ill. 2d 444, 454.)

That conclusion remains sound, despite Travelers’ fears that it will increase the cost of insurance. It must be remembered that Travelers, by agreeing to the “permission” loading clause in its policy, extended the insurance agreement to an unknown class of third-party intended beneficiaries — those driving with the permission of the named insured. The size of that class was limited only by the prudence of the named insured in extending permission to drive its automobile. (See Cocos v. American Automobile Insurance Co. (1939), 302 Ill. App. 442, 451.) While normally courts are hesitant to find inclusion for fear of extending coverage beyond the contemplation of the insurer and insured, Travelers’ policy here already provided coverage far beyond its own control or ability to predict. (Cf. Hays v. Country Mutual Insurance Co. (1963), 28 Ill. 2d 601, 607; Government Employees Insurance Co. v. Dennis (1967), 90 Ill. App. 2d 356, 365.) To argue that, while the duty to pay may be so extended, the duty to defend should not be, is inconsistent. No such distinction appears in the policy.

Travelers finds the result, that the duty to defend extends to someone whom neither it nor the named insured contemplated, a stranger to the policy, absurd. That argument begs the question by assuming that the putative insured, Reed in this case, was driving without permission. When the insurer renounces its duty to defend in a case like this, that question is yet to be finally determined.

Travelers points to Graman v. Continental Casualty Co. (1980), 87 Ill. App. 3d 896, for support of its claim that inclusions of insurance coverage should be treated differently than exclusions. But the question in Graman was not inclusion, but rather whether the complaint alleged potential coverage. Graman held that because the claims involved were not presented to the insurer within the time called for in the policy, there was no duty to defend. 87 Ill. App. 3d 896, 902.

C

Peppers and Thornton announced a limited exception to the rule that where the putative insured is sued under a complaint alleging facts sufficient to raise a potential case of coverage, the insurer must provide the putative insured with a defense, must defend under a reservation of rights or must seek a declaratory judgment of coverage. That exception applies where there is a conflict of interest between the insurer and the putative insured, which absolves the insurer of its duty to take charge itself of the putative insured’s defense. A description of the kinds of conflict of interest that may arise in these situations appears in Murphy. But this case is different from Murphy; the insured passenger here sued only the driver of the car, not the owner as well. This difference is critical because, without the owner as a party defendant, the insurer’s loyalty is not torn, as it was in Murphy, between the conflicting interests of the owner and the insurer on the one hand and the driver on the other when permission is at issue.

Unlike Murphy, permission was not an issue here in the underlying suit against Reed. The only issue was the negligence of the driver. On this point the insurer and the driver did not have conflicting interests; each wanted to show that there had been no negligence and thus put an end to Clemmons’ claim.

If Clemmons could show negligence, the uneasy contractual alliance between Travelers and the driver would eventually disintegrate. But any conflict between the two could only come in the future; nothing that Travelers could do in the underlying suit against Reed would affect the later dispute over policy coverage about permission. Travelers could not manipulate the proceedings in the ClemmonsReed suit to lay the groundwork for later taking the position that Reed was driving without permission. Evidence relating to permission would be irrelevant in the underlying suit.

As wary of Reed as it might be, therefore, Travelers had a duty to defend him in the underlying suit brought by Clemmons. If Travelers wanted to preserve its right to later contest permission, it had the choice of defending under a reservation of rights or seeking a declaratory judgment of no coverage. By doing neither, Travelers was estopped from later denying coverage when Clemmons, standing in Reed’s shoes, asked it to pay the judgment in the underlying suit.

The general rule of estoppel is equitable in nature. In this context, its roots lie in the theory that because the insurer breached one of its duties under the contract of insurance (of which the putative insured is an intended third-party beneficiary), the insurer cannot later turn around and enforce another clause of the contract, to its complete protection. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 197.) The court will not enforce the insurer’s protections under the policy where the insurer failed to act equitably, that is, failed to defend under a reservation of rights or to bring a declaratory judgment action to determine whether there was coverage under the policy. (Thornton v. Paul (1978), 74 Ill. 2d 132, 159.) The circuit court was correct in finding Travelers estopped.

II

Travelers also raises a procedural challenge. After summary judgment was entered in the garnishment action, Travelers moved to set aside the judgment. The basis for its collateral attack upon the default judgment was that service upon Reed in that suit was improperly obtained. Travelers pointed out that the return of service, which stated that Reed had personally been served, was not in affidavit form and that it was signed by one of Clemmons’ attorneys. Travelers argued that because of these shortcomings no personal jurisdiction had been obtained over Reed and the default judgment was therefore void. The appellate court affirmed the circuit court’s denial of the motion, holding that service by an attorney and failure to file an affidavit were not egregious enough faults to render the default judgment void.

Travelers now argues that the appellate court denied it the opportunity to litigate the issue of service. While no evidence was presented on the issue in the lower court, that was because Travelers did not raise the issue until it filed its motion to vacate the summary garnishment judgment. Even assuming that the allegations on which its motion to set aside the garnishment judgment was based were true, the default judgment in the Reed suit was not void. It was therefore proper to decline to reopen the garnishment judgment.

Travelers, as garnishee, had the right to attack the underlying default judgment on the ground that the court had never obtained personal jurisdiction over Reed. (First National Bank v. Hahnemann Institutions of Chicago, Inc. (1934), 356 Ill. 366, 370.) To do that it would have to present some evidence to impeach the return already in the court record. The normal way would be either through an affidavit or personal testimony of the defendant, but Travelers offered neither. Instead, Travelers argued only that the return should be ignored simply because it was not in proper affidavit form, as required by section 13.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.1(1)). However, the affidavit requirement is a matter of convenience. Its purpose is similar to that of the notarized attestation clause of a witness to a will. If the return is challenged, the affidavit of return is powerful evidence that can be overcome only by a contradictory affidavit or personal testimony.

The affidavit requirement thus makes it harder for an attack upon the return of a private process server to succeed, in much the same way as does the presumption that a sheriff’s return is proper. (See Marin v. Grimm (1976), 37 Ill. App. 3d 979, 981.) But failing to comply with the affidavit requirement does not necessarily render the return useless or the service void. ((Cf. In re Sexton (1981), 84 Ill. 2d 312, 320.) What is significant here is that Travelers acknowledged receipt of a summons which had been forwarded to it by Reed and which showed a date of service. Thus, any attack it made upon Reed’s service could not have succeeded, and the defect in form was properly disregarded.

Travelers argues that the return should have been given no credence because it was made by Clemmons’ attorney. Thus, with nothing in the record to show service, the court would have been without jurisdiction to enter the default judgment. Travelers’ theory is that an attorney is not a “disinterested person” and so is ineligible to serve process. The formulation comes from a line of cases decided before the Civil Practice Act. (People ex rel. Lafferty v. Feicke (1911), 252 Ill. 414, 417; Tallon v. Schempf (1873), 67 Ill. 472, 473.) That act requires only that a private process server be 18, be appointed by the court and not be a party to the action. (Ill. Rev. Stat. 1979, ch. 110, par. 13.1(1).) The attorney here satisfied those requirements and so his service was acceptable.

So far as the propriety of Clemmons’ attorney acting as a process server is concerned, the Code of Professional Responsibility provides that an attorney should not seek employment in a matter in which the attorney might have to appear as a witness (73 Ill. 2d R. 5—101(b)). It is not necessary to consider all the consequences of the attorney acting in this case as process server. Whatever those consequences may be for the attorney, including perhaps his disqualification as attorney for Clemmons in the event his testimony is called for by either party, they would not affect the validity of the service upon Reed.

Travelers’ motion to set aside the summary judgment in the garnishment action on the ground of the propriety of service on Reed did not include sufficient allegations to establish that the default judgment was void. The circuit court properly denied the motion.

Ill

The default judgment against Reed was obtained with jurisdiction, and Travelers’ refusal to defend Reed in that action was wrongful. It was proper to enter summary judgment in Clemmons’ favor in the garnishment action.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 53840.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PHILLIP E. LA POINTE, Appellee.

      Opinion filed November 13, 1981.

    Modified on denial of rehearing January 29, 1982.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Thomas L. Knight and Robert L. Thompson, Assistant State’s Attorneys, of counsel), for the People.
    Mary Robinson and Mark Schuster, of the Office of the State Appellate Defender, of Elgin, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The defendant, Phillip E. La Pointe, entered an unnegotiated plea of guilty in the circuit court of Du Page County to the murder of Peter Moreno, Jr., and was subsequently sentenced to natural life imprisonment without parole. The appellate court reduced that sentence to 60 years’ imprisonment. (85 Ill. App. 3d 215.) We granted the State’s petition for leave to appeal, and now consider as the principal issue: Did the trial judge abuse his discretion in imposing the natural life sentence, for, unless he did, its reduction was error.

A number of witnesses testified at the 18-year-old defendant’s August 31, 1978, sentencing hearing. David Cichelli testified that on March 7 he was employed at a service station in Elmhurst. On that morning the defendant, who was a friend of his, walked up to him at the gas pumps. Defendant told Cichelli that he was going to shoot a cab driver. They then went to the service station washroom where the defendant produced a gun and showed it to Cichelli. As the latter handled the gun and looked down the barrel, defendant told him it was loaded. Defendant then left the station but returned an hour or two later and told Cichelli that he “shot him in the head.” Cichelli testified that at that time he believed defendant was kidding, but asked why he shot the cab driver. Defendant said he did it for the money but that it was not worth it. Defendant also told Cichelli that he shot the cab driver because the driver saw defendant and knew who he was.

Sergeant James Altman of the Elmhurst police department testified that he participated in the investigation of the shooting death of Peter Moreno, Jr. When the sergeant arrived on the scene the victim was dead and lying on the floor in the front seat area of the cab. Decedent’s head was near the passenger door and his legs were pulled up against, and partially under, the seat on the driver’s side as if someone had driven the cab. His pockets had been turned inside out and there was no money or identification on him.

Sergeant Ralph O’Connell of the Elmhurst police department testified that he supervised the evidence work for this investigation and was present when decedent’s body was examined by a pathologist. Decedent had been shot twice in the head and neck area from the rear and at close range.

Deputy Sheriff David Leeberg testified that he was assigned to the inmate recreation room of the Du Page County jail as a supervisor. He was acquainted with defendant and had occasion to observe him during his incarceration. In the latter part of March and early April the witness observed the defendant approximately 10 times wearing a tee shirt with the words “Elmhurst Executioner” written on it. The deputy also testified that he heard another inmate tell defendant that he was “crazy” for wearing a shirt with those words on it, and thereafter did not observe the defendant wearing that tee shirt.

Joseph Ray, a 16-year-old student, testified that he had been acquainted with the defendant for a year and a half. Two or three weeks before defendant was arrested, Ray met him at a store in Elmhurst, and defendant asked Ray to go to a drugstore restaurant with him to rob the cash register. Ray further testified that, prior to the drugstore conversation, he and defendant had once burglarized a home. The presentence report revealed that defendant was on probation for this burglary when the murder was committed. Ray also testified that defendant had telephoned him from the county jail and asked that he bring some “hash” to the defendant, but Ray refused.

Deputy Sheriff Robert Marx testified that he worked in the inmate recreation room and was acquainted with the defendant. He observed the defendant a week or two after arriving at the county jail wearing a tee shirt with the lettering “Elmhurst Executioner.” The tee shirt was not produced after defendant gave permission for his belongings at the jail to be searched, but the officer testified it could have been flushed down the toilet or burned.

Deputy Sheriff Pat Cleveland testified that he worked at the county jail and observed the defendant in April of 1978, wearing the tee shirt that said “Elmhurst Executioner.” Cleveland told defendant that he was “nuts” to be wearing that shirt, at which defendant “just laughed.”

Patricia Duddles testified that she was 27, and, at the time of his death, she was living with and engaged to be married to Peter Moreno, Jr. She was 6½ months pregnant with his child at the time of the hearing. She further testified that, following Peter Moreno, Jr.’s death, she lost her home and that he had been her only means of support.

The defense witnesses testifying in mitigation of the offense included defendant’s mother, Delores Malo, who stated that defendant had resided with her all his life. During the past three years she had noticed a change when he became involved with drugs, although she had never known him to be violent. She had sought counseling for him when he was 15 because he was a runaway. She stated that the relationship between the defendant and her husband, defendant’s stepfather, had deteriorated because of her husband’s drinking problem.

The stepfather, William Malo, testified that his relationship with the defendant was good until the defendant became involved with drugs, and thereafter defendant was “out of control” and “couldn’t take any kind of responsibility,” although the stepfather testified he had never seen him become physically aggressive with anyone.

The Reverend Erling Jacobson testified that he became acquainted with the defendant through defendant’s mother, who asked him to help with the defendant’s problem. Reverend Jacobson tried to work with the defendant, but felt defendant was dangerous to himself and to society and should be locked up. He realized the defendant had a drug problem and believed that he needed psychiatric care.

The defendant’s father, Leroy La Pointe, testified that he lived in New Jersey and that the defendant visited him there the previous fall. Defendant stayed for about 4J¿ weeks. The father had never known defendant to be physically aggressive with anyone, but knew that he had a serious drug problem.

Defendant made the following unsworn statement to the court:

“At the time of this crime, no matter what Mr. Cichelli has said, I was under the influence of six hits of LSD. Normally, that is a lot for one person. Usually you can cut that in half and do it and still be really spaced out. To this day, I cannot remember if I have or have not killed Mr. Peter Moreno. If I did, I am truly sorry. I am not no killer by instinct. If I did, it was the LSD. But naturally, if I had known what I was doing, there was no way I could have killed that man. That is all I have to say, your Honor.”

At the conclusion of the sentencing hearing the trial judge continued the cause to September 18 for the imposition of sentence.

Section 5—8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005—8—1(a)(1)) regarding sentencing provides in relevant part:

“[I]f the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9-1 of the Criminal Code of 1961 are present the court may sentence the defendant to a term of natural life imprisonment.”

On September 18, prior to imposing sentence, the judge reviewed the transcript of the evidentiary hearing and commented on the mitigating and aggravating factors in sections 9—1 of the Criminal Code of 1961 and 5—5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 9—1(b), 1005—5—3.1). He noted that defendant had attained the age of 18 at the time he committed the murder, had a significant history of prior criminal activity, and that an aggravating factor listed in section 9—1(b) was present in that the murder was committed in the course of another felony: the armed robbery of the victim. (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(b)(6).) Contrary to the statement of the appellate court, reference was also made in the trial judge’s comments to the presentence investigation. He indicated his belief that defendant had not been under the influence of extreme mental or emotional disturbance at the time of the murder, and concluded:

“So, the Court, in taking into consideration the heinous nature of this crime, its brutality, its cold, calculating, cold-blooded act which is indicative of the wanton cruelty, there was indication it was premeditated and postmeditated, the Court took into consideration the presentence investigation which more or less correlated everything that was in the transcript and the testimony on the hearing in aggravation and mitigation, and the Court has taken into consideration the arguments of counsel at the hearing in aggravation and mitigation, the fact that the defendant was over 18 years of age, and therefore, it shall be the judgment of this court that the defendant be remanded to the custody of the Sheriff of Du Page County, and thence to the custody of the Illinois Department of Corrections, where he shall serve a life sentence, without parole.”

Reviewing courts have the power under our Rule 615(b)(4) (73 Ill. 2d R. 615(b)(4)) to reduce sentences. The determination and imposition of a sentence is a matter involving considerable judicial discretion, and our recent cases have repeatedly emphasized that the standard of review to be applied in determining whether a sentence is excessive is: Did the trial judge abuse his discretion in imposing that sentence? People v. Robinson (1980), 83 Ill. 2d 424; People v. Kuesis (1980), 83 Ill. 2d 402; People v. Cox (1980), 82 Ill. 2d 268; People v. Lykins (1979), 77 Ill. 2d 35, 40; People v. Perruquet (1977), 68 Ill. 2d 149.

Fairness to the appellate court in this case requires us to note that its opinion preceded our decision in Cox, which reversed the appellate court in that case. The appellate court here had to some extent relied upon the appellate court holding in Cox that legislative action creating a “rebuttable presumption that the sentence imposed by the trial judge is proper” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005—5—4.1) had supplanted the abuse-of-discretion standard. (People v. Cox (1979), 77 Ill. App. 3d 59, rev’d (1980), 82 Ill. 2d 268; People v. Choate (1979), 71 Ill. App. 3d 267.) Except for this we assume the appellate court in this case would have applied the abuse-of-discretion criterion mandated by our earlier decisions and subsequently reaffirmed by this court in Cox.

The Unified Code of Corrections vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. (People v. Bolyard (1975), 61 Ill. 2d 583.) We held in Perruquet, and emphasize here that “the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” 68 Ill. 2d 149, 154.

Defendant argues, however, that our constitution requires the trial court to make specific findings concerning the defendant’s rehabilitative potential. The relevant section provides: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, § 11.) The sentencing judge is always, as we stated in Cox, “charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender.” (82 Ill. 2d 268, 280.) That task can be an agonizing one to the solution of which a trial judge may well devote substantial amounts of time and thought. But the quoted constitutional provision does not require the judge to detail for the record the process by which he concluded that the penalty he imposed was appropriate. As we have noted, the record indicates that the trial court in this case, as in Cox, carefully considered the evidence within the prescribed statutory framework, including the statutory factors in mitigation and aggravation, the presentence investigation, the credibility and demeanor of the witnesses, the defendant’s premeditation and deliberation, and the total absence of remorse on his part. We note, too, the judge’s specific rejection of mitigating factors which might otherwise have indicated a potential for rehabilitation:

“(8) the defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) the character and attitude of the defendant indicate that he is unlikely to commit another crime.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005—5—3.1(a)(8),(9).)

In our judgment the record indicates a thorough consideration of the factors constitutionally and statutorily designated for the trial judge’s attention.

The defendant also argues, and the appellate court held, that the trial court erred in finding that defendant was not under extreme mental or emotional disturbance at the time of the murder, and that defendant had a significant history of prior criminal activity. We do not agree. While the testimony indicated a substantial history of illicit drug use by defendant, and he said he had been under the influence of LSD at the time of the killing, the presentence report contained statements by David Cichelli that defendant did not appear to be under the influence of drugs either shortly before or shortly after he killed the cab driver, and Cichelli testified defendant “looked normal.” In these circumstances the trial judge’s findings as to his mental or emotional state are not against the manifest weight of the evidence. Nor do we believe the trial judge erred in finding a significant history of prior criminal activity. Although defendant was only 18 at the time he shot the victim, he was then on probation as the result of an earlier conviction for burglary. He had apparently engaged for two or three years in the illegal possession and use of drugs. Those circumstances alone seem to us sufficient to justify the trial court’s finding, even without the additional testimony of Joseph Ray that defendant had solicited him to participate in a robbery with defendant, and, after defendant’s incarceration, had requested Ray to smuggle some “hash” to him. The appellate court held admission of this evidence to be error since no prosecution or conviction had resulted from that conduct. Our decisions, however, do not support that holding. In People v. Adkins (1968), 41 Ill. 2d 297, 300-01, this court noted:

“In Illinois, too, we have long held that the judge in determining the character and extent of punishment is not limited to considering only information which would be admissible under the adversary circumstances of a trial. While it must exercise care to insure the accuracy of information considered and to shield itself from what might be the prejudicial effect of improper materials (People v. Crews, 38 Ill. 2d 331), ‘the court is not confined to the evidence showing guilt, for that issue has been settled by the plea. The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the [crime], and it may search anywhere, within reasonable bounds, for other facts which tend to aggravate or mitigate the offense. In doing so it may inquire into the general moral character of the offender, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and, as was said in People v. Popescue, [345 Ill. 142], the judge should know something of the life, family, occupation and record of the person about to be sentenced.’ People v. McWilliams, 348 Ill. 333 at 336. See also People v. Popescue, 345 Ill. 142; People v. Mann, 27 Ill. 2d 135; Ill. Rev. Stat. 1967, chap. 38, par. 1—7(g).”

In People v. Kelley (1970), 44 Ill. 2d 315, 318, Adkins was cited with approval as authority for the admission at a sentencing hearing of testimony as to misconduct which had not resulted in prosecution and conviction. (See also People v. Meeks (1980), 81 Ill. 2d 524, 535; People v. Poll (1980), 81 Ill. 2d 286, 290.) The various panels of the appellate court have not been entirely harmonious in their treatment of the subject (compare People v. Fritz (1979), 77 Ill. App. 3d 1, with People v. Kennedy (1978), 66 Ill. App. 3d 35), and the State urges that we clarify the extent to which evidence of criminal conduct may be introduced at sentencing hearings even though that misconduct has not been the subject of prosecution and conviction. We believe, however, that adequate guidelines are to be found in the provisions of chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005—1—1 through 1005—9—3) and our earlier opinions. Adkins is particularly informative in emphasizing that “a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” (41 Ill. 2d 297, 300.) While “the judge *** is not limited to considering only information which would be admissible under the adversary circumstances of a trial,” he must “exercise care to insure the accuracy of information considered.” 41 Ill. 2d 297, 300.

Similarly broad standards have been announced in other jurisdictions. (See Annot., 96 A.L.R.2d 768, §7(a), at 787-91; § 10(c), at 798-99 (1964), discussing cases in which courts have approved consideration by sentencing judges of criminal misconduct established by the testimony of witnesses, and A.L.R. Later Case Service listing later cases with similar holdings.) In implementing the concept that punishment should fit the offender and not merely the crime, the Supreme Court has repeatedly affirmed the “fundamental sentencing principle’ ” that “ ‘ “a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” ’ ” (Roberts v. United States (1980), 445 U.S. 552, 556, 63 L. Ed. 2d 622, 628, 100 S. Ct. 1358, 1362; Williams v. New York (1949), 337 U.S. 241, 247, 93 L. Ed. 1337, 1342, 69 S. Ct. 1079, 1083.) In Williams the Supreme Court elaborated upon reasons for differentiating between the rules of evidence governing trial and sentencing procedures.

“In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.
# # #
e#e We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.
The considerations we have set out admonish us against treating the due-process clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence. New York criminal statutes set wide limits for maximum and minimum sentences. Under New York statutes a state judge cannot escape his grave responsibility of fixing sentence. In determining whether a defendant shall receive a one-year minimum or a twenty-year maximum sentence, we do not think the Federal Constitution restricts the view of the sentencing judge to the information received in open court. The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts — state and federal — from making progressive efforts to improve the administration of criminal justice.” Williams v. New York (1949), 337 U.S. 241, 246-51, 93 L. Ed. 1337, 1342-44, 69 S. Ct. 1079, 1083-85.

It is apparent from the Supreme Court holdings that the due process clause of the Federal Constitution offers no impediment to the consideration of the evidence with which we are here concerned. Nor, apparently, would that clause prohibit the consideration of information unattended by the safeguards present here unless its accuracy was denied. We see no purpose to be served by interpreting our own constitutional provisions more restrictively. Whether a defendant had been prosecuted and convicted for other misconduct, proof of which is offered at a sentencing hearing, is not, in our judgment, controlling as to its admissibility. More important are the questions of relevancy and accuracy of the information submitted. Those questions are, of course, initially determined by the trial judge in the exercise of an informed discretion. Where, as here, that information indicates defendant solicited another to commit criminal offenses, and comes in the form of sworn testimony by the party solicited, presented in open court and subject to cross-examination, its admission by the trial judge is not an abuse of discretion. The conduct testified to was relevant to a determination of a proper sentence in that it bore upon the likelihood or unlikelihood that defendant would commit other offenses; it appeared trustworthy; defendant had the opportunity to face and cross-examine the witness; and the accuracy of the information was not challenged. While trial judges should be cautious in admitting such proof and sensitive to the possibilities of prejudice to defendant if inaccurate information is considered, we believe that a trial judge may, under circumstances such as those here, properly receive proof of criminal conduct for which no prosecution and conviction ensued.

Defendant also challenges the constitutionality of section 5—8—1(a)(1) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005—8—1(a)(1)), authorizing natural life imprisonment. First, defendant contends that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” is unconstitutionally vague and therefore violates the due process requirements and, second, that the felony sentencing scheme which offers the prospect of release to every offender sentenced to a term of imprisonment excepting a small class of murder defendants violates equal protection of the law.

We note at the outset that a statute enjoys a strong presumption of constitutionality (People v. Schwartz (1976), 64 Ill. 2d 275, 281), and the burden of showing invalidity is on the party challenging the enactment (People v. McCabe (1971), 49 Ill. 2d 338, 340). A statute is unconstitutionally vague if its terms are so ill defined that their meaning will ultimately be determined by the opinions and whims of the trier of fact rather than any objective criteria. (People v. Pembrock (1976), 62 Ill. 2d 317, 322.) A court will assume, however, that absent a contrary legislative intent the words used in a statute have their ordinary and popularly understood meanings. (People v. Schwartz (1976), 64 Ill. 2d 275, 280; Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 510.) In addition to the language used, consideration is also given to the legislative objective and the evil the statute is designed to remedy. (People v. Dednam (1973), 55 Ill. 2d 565, 568.) The descriptive adjectives employed in section 5—8—1(a)(1) are commonly used words which, clearly, are not so vague and indefinite as to be constitutionally void. Coupled with the objectives sought to be achieved and the evil the statute seeks to remedy they give sufficient direction to trial judges who must determine when and whether to impose the natural life sentence of imprisonment. We accordingly conclude that the statute is not vulnerable to attack on due process grounds. Nor does it deny defendant equal protection of the law.

The equal protection clause does not deny the State the power to treat different classes of persons in different ways. (People v. Bradley (1980), 79 Ill. 2d 410, 416, citing Eisenstadt v. Baird (1972), 405 U.S. 438, 446-47, 31 L. Ed. 2d 349, 358, 92 S. Ct. 1029, 1034-35; Skinner v. Oklahoma (1942), 316 U.S. 535, 540, 86 L. Ed. 1655, 1659, 62 S. Ct. 1110, 1113.) “That clause requires equality between groups of persons ‘similarly situated’; it does not require equality or proportionality of penalties for dissimilar conduct.” (People v. Bradley (1980), 79 Ill. 2d 410, 416, citing McGowan v. Maryland (1961), 366 U.S. 420, 427, 6 L. Ed. 2d 393, 400, 81 S. Ct. 1101, 1105-06; People v. Nicholson (1948), 401 Ill. 546, 553.) That the legislature, under the State’s police power, has wide discretion to classify offenses and prescribe penalties for the defined offenses is well established. (People v. McCabe (1971), 49 Ill. 2d 338, 340-41; People v. Dixon (1948), 400 Ill. 449, 453.) Thus, the equal protection challenge in this context is limited: if any state of facts may reasonably be conceived to justify the enactment, it must be upheld. (People v. McCabe (1971), 49 Ill. 2d 338, 341.) The legislative determination to differentiate in sentencing between certain classes of murderers is not irrational. Although society is outraged by all murders, consideration must be taken to insure that the punishment is appropriate and just depending upon the circumstances. (People v. Crews (1967), 38 Ill. 2d 331, 337.) A sentence of natural life imprisonment for the class of murderers who have demonstrated by their conduct their capacity for particularly brutal and heinous crimes indicative of wanton cruelty appears to us reasonably designed to remedy the evil and a legitimate means by which the legislature might seek to protect society. See People v. Smith (1980), 91 Ill. App. 3d 438, 454.

Defendant urges, too, that the statutory language permitting the imposition of a natural life imprisonment sentence where conduct is “accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1)(b)) authorizes that sentence only if he had inflicted “torture or unnecessary pain upon his victim.” We do not agree. “Heinous” is defined by Webster’s Third New International Dictionary (unabridged) as “hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal”; “brutal” includes “grossly ruthless,” “devoid of mercy or compassion: cruel and cold-blooded.” Clearly, in our opinion, the statute does not limit the imposition of a sentence of natural life imprisonment to only those murders involving torture or the infliction of unnecessary pain.

The record in this case indicates that the defendant, a young man with a significant history of criminal activity, acted with premeditated, cold-blooded deliberation in deciding to kill a cab driver, a homicide for which the death penalty could have been sought, had the prosecutor elected to do so. Following that murder and while being held in the county jail, he displayed a callous attitude and complete lack of remorse by wearing the tee shirt with the words “Elmhurst Executioner” appearing thereon. We do not believe that the trial judge can be said to have abused his discretion in sentencing defendant to natural life imprisonment without parole.

The judgment of the appellate court is accordingly reversed, and the judgment of the circuit court of Du Page County is affirmed.

Appellate court reversed: circuit court affirmed.