author: JUSTICE O’CONNOR

text:
    CLARENCE E. FOSTER et al., Petitioners-Appellants, v. THE MUNICIPAL OFFICERS ELECTORAL BOARD et al., Respondents-Appellees.
    First District (3rd Division)
    No. 83—0623
    Opinion filed March 30, 1983.

      Odelson & Associates, Ltd., of Evergreen Park (Burton S. Odelson and Mark H. Sterk, of counsel), for appellants.
    Robert E Peck, of Johnson & Peck, of Western Springs, for appellee Municipal Officers Electoral Board.
    Sheldon Gardner and George C. Pontikes, both of Foss, Schuman & Drake, of Chicago, for other appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioners, Clarence E. Foster, Susan J. Smith and Deborah A. Shepler, registered voters from their respective wards in the city of Countryside, Illinois, filed objections to the nominating petitions of the Independent Party of Countryside and its candidates and asked that the party and its candidates be removed from the April 12, 1983, ballot for election to municipal offices in the city of Countryside. Respondents Carl W. Le Gant, Walter H. Klimcke and Donald M. Orndorff are respectively the party’s nominees for the offices of mayor, clerk and treasurer. Respondents Roger J. Baas, Joseph P. Ficaro and Willard L. Schuessler are the party’s nominees for aldermen. Respondents Walter P. Dahl, Martin F. Brodkin and P. A. Sorrentino constitute the municipal electoral board of the city of Countryside.

The electoral board denied the objections. Petitioners filed a petition for judicial review under section 10 — 10.1 of the Election Code (HI. Rev. Stat. 1981, ch. 46, par. 10 — 10.1). The circuit court, after a hearing, upheld the ruling of the electoral board. Petitioners appeal, contending that the nominating petitions should have been stricken because (1) the Independent Party of Countryside was an established political party which was required to nominate its candidates by a primary election and not by petition, and (2) the name “the Independent Party of Countryside” violated section 10 — 5 of the Election Code (111. Rev. Stat. 1981, ch. 46, par. 10 — 5), in that it is the same name as that of an established political party or includes the name of an established political party.

The record discloses:

The city of Countryside is divided into three wards. Each ward is represented by two aldermen. The mayor, clerk and treasurer run city-wide every four years. The aldermen also run every four years, except that their terms are staggered so that ward elections are held every two years.

In the April 1979 municipal election, the Independent Party of Countryside elected a mayor (Le Gant), a clerk (Klimcke), a treasurer (Omdorff), and three aldermen. The 2nd Ward aldermanic candidate was Ficaro, and the 3rd Ward candidate, Schuessler. In that election, all the candidates except the 1st Ward aldermanic candidate were elected and the party and all its candidates received over 5% of the vote cast. The Independent Party of Countryside thereby became an established political party in the city.

In the April 1981 municipal election, a party named “Countryside Independent Party” elected one alderman from each ward; in wards 1 and 2 the candidates were incumbents. The candidate in ward 3 was new. The party and each of its candidates received more than 5% of the vote cast at that election. The Countryside Independent Party thereby became an established political party. The Independent Party of Countryside had no candidates in that election.

In January 1983, a party named the “Independent Party of Countryside” filed its nomination papers for the April 12, 1983, election for a full slate of candidates, mayor (Le Gant), clerk (Klimcke), treasurer (Omdorff), 1st Ward alderman (Baas), 2nd Ward alderman (Ficaro), and 3rd Ward alderman (Schuessler).

Petitioners contend that the Independent Party of Countryside, although it ran no candidates in the last municipal election in the municipality (April 1981) and thus did not receive more than 5% of the vote in that municipal election, continued, because of the 1979 election, to be an established political party under section 10 — 2 of the Election Code and was required to nominate its candidates by primary and not by petition.

Petitioners also contend that the name “Independent Party of Countryside” is the same name as “Countryside Independent Party” which became an established political party in that 1981 election and thus violated section 10 — 5 of the Election Code.

Respondents contend that the Independent Party of Countryside ceased to be an established political party when it did not run candidates in the last municipal election in 1981 and, accordingly, did not obtain more than 5% of the vote in that municipal election. They also contend that the name “Independent Party of Countryside” is not the same as the name “Countryside Independent Party.”

The Electoral Board found:

a) Independent Party of Countryside is not an established political party in the city of Countryside;

b) Independent Party of Countryside is not the same name as Countryside Independent Party, nor is it the same name as any established political party in the city of Countryside;

c) Independent Party of Countryside does not include the name Countryside Independent party, nor does it include the name of any established political party in the city of Countryside.

In affirming the findings of the Electoral Board, the circuit court found “that the decision of the Electoral Board in regard to their finding that the name Independent Party of Countryside is not the name of an established political party or included in the name of an established political party is affirmed.”

Section 10 — 2 of the Election Code (111. Rev. Stat. 1981, ch. 46, par. 10 — 2) provides in pertinent part:

“A political party which, at the last election in any congressional district, legislative district, county, township, municipality or other political subdivision or district in the State, polled more than 5% of the entire vote cast within such territorial area or political subdivision, as the case may be, has voted as a unit for the election of officers to serve the respective territorial area of such district or political subdivision, is hereby declared to be an ‘established political party’ within the meaning of this Article as to such district or political subdivision.”

Section 10 — 2, in defining an “established political party,” makes specific reference to the “last election” in the “municipality or other political subdivision or district in the State” and requires that it has polled more than 5% of the vote cast within such “territorial area or political subdivision” and “has voted as a unit for the election of officers to serve the respective territorial area of such district or political subdivision.”

A ward in a city is territorial area or political subdivision of a municipality and aldermen are officers for the respective territorial area of such district or political subdivision. The party, in voting for aldermen in specific wards, are voting “as a unit for the election of officers to serve the respective territorial area of such district or political subdivision.” Therefore, the April 1981 election of ward aider-men was the “last election in the territorial area of such district or political subdivision.” The Countryside Independent Party, which had nominated three candidates for aldermen, thereby became an established political party and the Independent Party of Countryside, having run no candidates in that municipal election, ceased to exist as an established political party.

Section 10 — 1 of the Election Code (111. Rev. Stat. 1981, ch. 46, par. 10 — 1) provides in pertinent part:

“Sec. 10 — 1. Political parties as hereinafter defined and individual voters to the number and in the manner hereinafter specified may nominate candidates for public offices whose names shall be placed upon the ballot to be furnished, as hereinafter provided: However, no nominations may be made under the provisions of this Article 10 by any established political party which at the general election next preceding, polled more than 5% of the entire vote cast in the State, district or unit of local government for which the nomination is made. ***”

The clearly expressed intent of this provision of section 10 — 1 is that no nominations by a political party may be made by petition if it is an established political party which at the last general election next preceding polled more than 5% of the entire vote cast in the district or unit of local government for which the nomination is made. This provision has no application to the case at bar, because Independent Party of Countryside, as related to nominations for the 1983 election, is no longer an established political party. Consequently, the vote at the 1979 election is irrelevant to its right to nominate candidates for the 1983 election.

Petitioners also point to the provision of section 10 — 2 which reads:

“In the case of a petition to form a new political party within a political subdivision which elects officers from districts, or from districts and at-large, such petition shall consist of separate components for each such district from which an officer is to be elected at such election. Each component may be circulated only within a district of the political subdivision and signed only by qualified electors who are residents of such district. Each sheet of such petition must contain a complete list of the names of the candidates of the party for all offices to be filled in the subdivision, but the sheets comprising each component shall request nomination of only those candidates to be elected from the particular district and of those candidates from the entire political subdivision. Each component of the petition for each district from which an officer is to be elected must be signed by qualified voters of the district equalling in number not less than 5% of the number of voters who voted at the next preceding regular election in such district at which an officer was elected to serve the district. The entire petition, including all components, must be signed by a total of qualified voters of the political subdivision equalling in number not less than 5% of the number of voters who voted at the next preceding regular election in such political subdivision at which an officer was elected to serve the subdivision.”

Under this provision, petitions for aldermanic candidates for a new party must be signed by not less than 5% of the qualified voters who voted for that aldermanic position at the “next preceding regular election in such” ward. Thus, it would appear that the petitions for nominations for aldermen in the 1983 election are required to be signed by 5% of the qualified voters from the same wards who voted in the 1981 election. It would further appear that the petitions for the nominations for the other city offices for the 1983 election are required to be signed by 5% of the voters for those offices in the 1979 election. No question, however, concerning the number of signatures required is before us.

Merz v. Volberding (1981), 94 Ill. App. 3d 1111, 419 N.E.2d 628, appeal denied (1981), 85 Ill. 2d 566, cited by petitioners, is clearly distinguishable. It involved section 10 — 3 of the Election Code and was concerned with the number of signatures required to nominate an independent candidate. It was not concerned with the establishment of a political party, the subject of section 10 — 2.

Petitioners also contend that the name Independent Party of Countryside on the petitions for the April 1983 election violates section 10 — 5 of the Election Code because it includes the name Countryside Independent Party, an established political party. That section (111. Rev. Stat. 1981, ch. 46, par. 10 — 5) provides in pertinent part:

“All certificates of nomination or nomination papers shall, besides containing the names of candidates, specify as to each:
* * *
2. The party, if any, represented, expressed in not more than 5 words. However, such party shall not bear the same name as, nor include the name of any established political party as defined in this Article. This prohibition does not preclude any established political party from making nominations in those cases in which it is authorized to do so.”

The prohibition is against the same name, not a similar one. The name Independent Party of Countryside, although similar, is not the same as the name Countryside Independent Party. By the same token, the name Independent Party of Countryside does not include the name Countryside Independent Party. Although the name Independent Party of Countryside, consisting of four words, includes the three words in the name Countryside Independent Party, those three words are not in the same order as they appear in the latter name. That change results in a name which is not the same name as that of an established political party; nor does it include the name of an established political party. Section 10 — 5 was not violated.

It must be conceded, however, that the similarity of these two names is indeed confusing. If the legislative purpose of section 10 — 5 was to prohibit confusion, the section should be amended to express clearly that intent. It is not the province of the courts to rewrite the section.

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

Affirmed. .

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DORVAN C. ROLSTON, Defendant-Appellant.
    Third District
    No. 82—426
    Opinion filed April 25, 1983.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of Ottawa, for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant was charged with four counts of theft by deception. (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(b)(1).) The jury convicted him of all four counts and the trial court sentenced him to.two terms of two years’ imprisonment and one term of 2V2 years’ imprisonment with the sentences to run concurrently. The trial court also ordered the defendant to make restitution to his victims. The defendant appeals his conviction, sentence and order for restitution.

The primary prosecution witnesses were the victims of the alleged thefts: Scott Butcher, Leroy Swanson and James Houseman. According to their testimony, the defendant entered into contracts with each of them to install windows of their homes. These witnesses gave the defendant down payments for their orders, but he did not order the windows from the factory, nor install any windows in the homes.

Leroy Swanson testified that he contacted the defendant after seeing a newspaper advertisement. The defendant came to Swanson’s home to demonstrate his windows. Several days later, on April 12, 1980, the defendant visited Swanson again and contracted with him for 12 replacement windows and one storm door. The total contract price for the windows and storm door was $3,332. Swanson gave the defendant $2,527 as a down payment. The defendant told Swanson, at the time they signed the contract, that the windows would not be ordered from the factory until the defendant sold a load (100) of windows. The defendant estimated that it would take three to four months to receive and install the windows. Swanson also testified that the defendant never misled him into believing the windows had been ordered. After four months, Swanson asked the defendant about the delay, and the defendant explained that he still had not sold enough windows to comprise a load. Swanson also testified that he was always able to contact the defendant. In December 1980, Swanson asked the defendant to give him a check if he could not get the windows. The defendant replied that he had insufficient funds to refund Swanson’s money. Swanson also testified that he contracted with the defendant for siding and a second storm door. The defendant completed this contract and also installed the storm door from the first contract in July 1980.

James Houseman testified that he contacted the defendant in July 1980. After one visit to demonstrate the windows, the defendant returned to Houseman’s home to sign a contract. The total cost for these windows was $4,500. Houseman gave the defendant a first down payment of $1,000 and, approximately three weeks later, gave the defendant another $1,250. The defendant promised installation by October 15, 1980. Houseman could not remember whether the defendant informed him that he would not order the windows until he had sold 100 windows.

The defendant’s brother, Gaylord Rolston, subsequently came to Houseman’s home to take the measurements for the replacement windows. In September 1980, Houseman gave the defendant an extension for completion of the contract. The defendant explained to Houseman that he ordered the windows and that they were being manufactured.

Scott Butcher testified that Houseman introduced him to the defendant. Butcher wanted to purchase four storm windows, including one large enough to cover a sliding glass door. The defendant called the factory to find out if he could obtain a window that large. After completing the call, the defendant told Butcher that he could supply a window for the door. The defendant contracted to supply and install four storm windows for $636.50. Butcher paid the full amount.

The defendant promised to install Butcher’s windows before the onset of the cold weather. Butcher did not remember whether the defendant initially told him that the windows would be ordered as part of a load, but the defendant later told him that they would be ordered that way. Six weeks later, in response to Butcher’s inquiry, the defendant told him that the windows would be delivered soon.

In late November 1980, Houseman, Butcher and Swanson called Thermal Industries, the window manufacturer, to determine whether the defendant ordered the windows. When they discovered that the defendant had not ordered the windows, they contacted the defendant, who admitted that he did not order the windows and that he lied to them. The defendant told them he had not placed the orders because he was still waiting for enough windows to comprise a load.

Rosetta Thomas, another customer of the defendant, also testified for the State. Thomas contracted with the defendant in February 1980 for replacement windows. She paid him $2,375, but never received the storm windows. On cross-examination, Thomas stated that she signed a criminal complaint against the defendant, but the trial court dismissed that case at a preliminary hearing, ruling that it was a civil matter. Thomas subsequently sued the defendant and received a judgment against him.

Arthur Poland, the vice-president of Thermal Industries, testified that the defendant was an authorized dealer of windows. The defendant, his brother and another man received factory training at the company’s Pittsburgh, Pennsylvania plant. Poland explained that a dealer, such as the defendant, would have to pay freight on all orders of less than 100 windows because they would be sent by common carrier. If, however, the defendant ordered 100 windows, the company would ship the windows itself. Poland also testified that any order placed by the defendant would have to be accompanied by one-third of the total price, with the balance payable on delivery. Poland verified that the defendant never ordered any windows.

The defendant principally relied upon the defendant’s testimony. He testified that he had been a salesman for a variety of businesses for 27 years. Prior to opening his own business, he sold replacement windows for the Acri Company in the Quad Cities area. In 1980, the defendant started a replacement window business and became an authorized dealer for Thermal Industries. The defendant furnished an office in the basement of his home and began advertising in newspapers and the telephone directory. The defendant hired two women to work in his office and to act as telephone solicitors.

The defendant claimed that he took the orders from Butcher, Houseman and Swanson believing that he could fulfill the contracts. The defendant also testified that he used the money that he received from his customers to pay immediate business and living expenses, hoping to cover the cost of early orders with receipts of subsequent orders. From April 1980 to September 1980 the defendant took in $25,000, while his business expenses amounted to over $16,000. The defendant testified that orders for windows did not arrive as fast as he expected them to come in. He also claimed that he lied to Houseman and Butcher in order to take the pressure off of him, but that he believed that he would soon sell the windows needed to order a load. The defendant stated that he never intended to take money from his customers without delivering windows to them. He also stated that he never avoided contact with them because he believes that he owes them refunds from the window orders. Since his arrest, the defendant has continued in the replacement window business.

Gaylord Rolston, the defendant’s brother, testified that he installed siding and two doors on Houseman’s home, pursuant to the contract between the defendant and Houseman. Gaylord Rolston also stated that he did not install any windows for the defendant during 1980, but that he did install 30 to 40 windows for the defendant in 1981. Ruth Wilson, an experienced telephone solicitor hired by the defendant, testified that they were unable to arrange appointments •with prospective customers, even though they advertised extensively. Arthur Poland, testifying in rebuttal, did not remember whether the defendant called him to ask if Thermal Industries could make a window as large as Houseman’s sliding door. Poland stated that if the defendant asked him about a window that size, he would have responded that it could not be made.

The defendant argues that the State failed to prove him guilty beyond a reasonable doubt. According to the defendant, the evidence raises a reasonable doubt that he obtained the money by deceiving the complainants and that he intended to permanently deprive them of the use and benefit of their money.

The State, of course, has the burden of proving each element of an offense. Whether the specific intent to defraud exists is a question of fact which does not have to be proved by direct evidence. Direct evidence of this intent is rarely available, so circumstantial evidence may be sufficient to sustain a conviction. (People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 180, 100 S. Ct. 262.) Questions of fact and inferences to be drawn from the evidence are for the jury’s determination. (Ballard.) Although the jury’s determinations are entitled to great weight, a reviewing court still has an obligation to set aside a conviction when the evidence is so unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. (People v. Reese (1966), 34 Ill. 2d 77, 213 N.E.2d 526.) In the case at bar, we find that the State failed to sustain its burden of proof.

The State relies upon four facts to prove a pattern of deception and an intent to permanently deprive the customers of their money: The defendant failed to fulfill the contracts; the defendant failed to order the windows after receiving a down payment; the defendant cashed one down payment check; and the defendant lied to Butcher and Houseman concerning the status of their orders. In support of its position, the State cites People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800, and People v. Moore (1978), 65 Ill. App. 3d 712, 382 N.E.2d 810. In Ballard, the defendant sold tool distributorships to 12 people, promising them high quality tools, high volume retail outlets and a refund of their investments. The tools were of poor quality, the accounts were low volume outlets and the defendants failed to refund any money. The defendants testified that they wanted to succeed, but they did not have sufficient experience or capital to invest in the business. The court affirmed their convictions, noting that the evidence established that they intended to defraud the investors.

Significantly, in Ballard the facts indicate that the defendants knew they would never fulfill the contracts. One defendant was president of the tool company that he was selling distributorships for, and another defendant was a consultant for that company. Therefore, they must have known the quality of tools and accounts that they were sending to their investors.

Similarly, in Moore, the defendant sold candy and tape distributorships to investors using representations that were comparable to those employed in Ballard. As in Ballard, the accounts were of low quality or nonexistent, the merchandise did not sell and the defendant failed to make any refunds. Additionally, that defendant gave investors false references, avoided contact with them after the distributorships started to fail and failed to make promised refunds of money.

Undoubtedly, there are similarities between Ballard, Moore and the case at bar. To affirm the conviction here, however, would require this court to look at the State’s evidence in a vacuum. A defendant’s failure to fulfill a contract is not proof of a specific intent to defraud. (People v. Jensen (1982), 103 Ill. App. 3d 451, 431 N.E.2d 720 (failure to repay loan is not proof of intent never to repay loan).) Moreover, cashing a check to cover expenses proves nothing. A businessman who receives a down payment can be expected to utilize that money. Even if the funds are used for the proprietor’s personal expenses, that action is no proof of felonious intent; after all, there is no substantial difference between cashing the check directly or depositing the check first and drawing a legitimate salary through the use of those funds later. Furthermore, the defendant’s uncontradicted testimony of his need to meet immediate expenses explains his inability to refund the money to his customers. Again, a failure to refund money to dissatisfied customers is not necessarily proof of a specific intent to defraud. {Jensen.) Thus, we are left with evidence of the defendant’s failure to order the windows and his false statements to customers explaining the delays.

Although this circumstantial evidence is damaging to the defendant, it is overcome by the remaining evidence in this case. The defendant went with two other men to the Thermal Industries plant in Pittsburgh to receive professional training. There is no evidence indicating that Thermal Industries is anything other than a legitimate, reputable manufacturer. The defendant became an authorized dealer of this company and embarked on selling a reputable product. (Compare Ballard (the defendants knew or should have known the poor quality of tools and accounts).) It is uncontradicted that the defendant here put most of the money he received back into the business, spending a great deal of money on advertising. The defendant partially performed one contract and fully performed another contract with one of the complainants, and has never denied owing the customers their money or the windows. He has always been available to his customers and did not try to avoid them or their complaints. The defendant reasonably explained his failure to order the windows separately. If the defendant ordered 100 windows, he avoided the freight costs and the company would ship them in special trucks designed to minimize the risk of breakage. The State’s own witness, Arthur Poland, supported him on this point. Finally, the defendant has continued his business, with apparent improvement in sales, installations and business procedures.

As we noted at the outset, a jury’s decision is entitled to great weight and respect. The evidence produced at trial, however, raises a significant doubt of the defendant’s guilt. The record in the case fails to establish guilt beyond all reasonable doubt. In this situation, we have a duty to reverse the conviction. (Reese.) Our disposition of this issue makes it unnecessary to rule upon the remaining issues that the parties raise in this appeal.

Accordingly, the judgment of the circuit court for Whiteside County is reversed.

SCOTT and BARRY, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    SAMUEL O’BANNON et al., Plaintiffs-Appellees, v. NORTHERN PETROCHEMICAL COMPANY et al., Defendants-Appellees.—(Hartford Accident and Indemnity Company, Intervening Appellant.)
    First District (3rd Division)
    No. 81—2983
    Opinion filed March 30, 1983.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Terrance E. Kiwala and James J. Stamos, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (William E. Hourigan, James T. Ferrini, and Thomas J. Burke, of counsel), for appellee Morrison Construction Company.
    Jerome H. Torshen, Ltd. and Garretson & Santora, both of Chicago (Jerome H. Torshen and Abigail K. Spreyer, of counsel), for appellee Northern Petrochemical Company.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

This appeal arises out of the settlement of an action based upon alleged violations of the Structural Work Act. Subsequent to the settlement and dismissal of the action, Hartford Accident & Indemnity Company, an insurer for two of the defendants, petitioned to intervene and to vacate a portion of the settlement order. The trial court denied both motions and Hartford appeals.

On October 4, 1977, plaintiff Samuel O’Bannon, an employee of Morrison Construction Company, brought this suit seeking $1,400,000 in damages for injuries sustained by plaintiff on December 6, 1976, when he fell from a scaffold while working at a construction site owned by defendant Northern Petrochemical Company. Northern, acting as its own general contractor, had issued contracts to six prime contractors to perform certain aspects of the work. Among those prime contractors were plaintiff’s employer Morrison and defendant Charles O’Brien & Son Construction Co., Inc. Plaintiff alleged in an amended complaint that O’Brien had erected the scaffold and that violations of the Act by Northern and O’Brien had caused his injuries. Morrison, having paid Workmen’s Compensation to plaintiff, intervened in order to protect its lien.

The contract between O’Brien and Northern required O’Brien to provide insurance coverage for any liability Northern might have for injuries arising out of work performed by O’Brien for Northern. O’Brien purchased such a policy from Hartford. Morrison, pursuant to similar contractual obligations to Northern, purchased an insurance policy from Continental Insurance Company to cover Northern’s liability for injuries arising out of work performed by Morrison for Northern. Each of these policies had a limit of liability of $1,000,000.

Continental retained the law firm of Garretson & Santora to defend Northern in this suit. In a letter dated July 29, 1980, Northern tendered the defense of this suit to O’Brien under the insurance coverage O’Brien had purchased from Hartford. Northern received no response. Shortly after that, Garretson & Santora wrote demanding O’Brien’s cooperation in the defense of this suit. This letter informed O’Brien of a pretrial hearing set for September 9, 1980, and demanded that a representative of either O’Brien or Hartford be present. The letter noted that plaintiff was suing Northern for an amount in excess of the Continental policy limits. Again no response was received.

On September 12, 1980, Northern filed a complaint against Hartford and O’Brien seeking a declaratory judgment that Hartford had a duty to defend and to indemnify Northern. It was Hartford’s position that plaintiff’s injuries were not covered by the Hartford policy because they had not arisen out of any work performed by O’Brien. Nevertheless, in response to Northern’s tender of defense, Hartford agreed, in a letter dated October 27, 1980, while the declaratory judgment action was still pending, to participate in Northern’s defense but only under a full and complete reservation of rights. Specifically, Hartford stated that it would share defense costs paid to Garretson & Santora if it were determined that Hartford’s policy was primary over that of Continental. Hartford asserted further that if Northern wished to retain its own counsel Hartford would reimburse Northern for reasonable attorney fees in the event Hartford’s policy was found to be primary.

By order of February 2, 1981, the trial court ruled in the declaratory judgment action that Hartford did have a contractual duty to defend Northern subject to Hartford’s reservation of rights. The indemnification issue was found to be premature.

While the declaratory judgment action was pending, Northern’s counsel kept Hartford advised of pretrials and continually requested Hartford’s participation. Hartford’s attorneys did attend three pretrials but made no settlement offer.

By letter dated May 27, 1981, Hartford was advised that Continental was entering into active negotiations with plaintiff’s attorney. Although Hartford’s participation was requested, it took no part in the negotiations. In Hartford’s absence a settlement agreement was reached between the parties whereby plaintiff received $975,000, $935,000 from Continental on Northern’s behalf and the balance from O’Brien. Morrison agreed to reduce its workmen’s compensation lien claim from $130,000 to $70,000 in exchange for Northern’s waiver of any indemnity claims it might have against Morrison. Pursuant to this agreement, the trial court, on June 23, 1981, entered an order which provided that “the above titled cause, including any and all counterclaims, third party claims and Workmen’s Compensation claims, be and the same hereby are dismissed with prejudice and without costs.”

On July 21, 1981, Hartford filed its petition to intervene, alleging that it had interests in the suit which were not adequately represented and that it might be bound by the order of dismissal. Hartford had been advised the declaratory judgment action would be reinstated against it unless Hartford voluntarily reimbursed Continental for one half of the $935,000 Continental had paid plaintiff on Northern’s behalf. Although Hartford still denied that Northern was covered for plaintiff’s injuries under its policy with Hartford, Hartford asserted that in the event the declaratory judgment action was reinstated, Hartford, as subrogee of Northern would want to file for indemnity against Morrison. Hartford expressed concern that the language in the court’s order purporting to dismiss all counterclaims and third-party claims might be misconstrued to preclude Hartford from seeking such indemnity. Noting that Continental insured both Northern and Morrison, Hartford charged that the parties had included this language in the order for the specific purpose of preventing Hartford from exercising its subrogation rights against Morrison.

On the same date Hartford also filed a motion to vacate that part of the June 23 order purporting to dismiss “all counterclaims [and] third party claims ***.” After a hearing the trial court denied both petitions.

On appeal, Hartford contends that it should have been allowed to intervene pursuant to the Civil Practice Act. Ill. Rev. Stat. 1979, ch. 110, par. 26.1(l)(b).

Timeliness of a petition to intervene is a matter for the discretion of the trial court. (Avery v. Moseley (1974), 19 Ill. App. 3d 1001, 313 N.E.2d 274.) Hartford’s petition was filed after the case was settled and dismissed. Although intervention is usually allowed only before judgment, it may be granted after judgment when necessary to protect the rights of the intervener. (Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.) Where, however, as in the present case, the intervenor was not only aware of the original suit but had ample opportunity to intervene prior to judgment, a post-judgment petition to intervene will be denied as untimely unless failure to intervene prior to judgment can be adequately explained. Moore v. McDaniel.

Hartford raises two arguments in its attempt to explain why it did not petition to intervene earlier in the proceedings. First, relying on Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, and Home Insurance Co. v. Lorelei Restaurant Co. (1980), 83 Ill. App. 3d 1083, 404 N.E.2d 895, Hartford maintains that, because of a conflict of interest between it, as insurer, and Northern as the insured, it would not have been permitted to intervene in the suit prior to settlement. Second, Hartford urges that its petition was timely because it was unaware that its interests were not being adequately represented until after settlement and dismissal and that it immediately sought to intervene at that time.

Consideration of Hartford’s conflict of interest argument requires that we look to the applicable principles of insurance law. Generally, an insurer is required to defend an action against its insured whenever the complaint alleges facts potentially within coverage of the policy. This is true even where the insurer’s own investigation reveals such allegations to be false. (Thornton v. Paul; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) Where an insurer wrongfully refuses to defend its insured it is es-topped to deny policy coverage in a subsequent lawsuit by the insured or the insured’s assignee. Thornton v. Paul.

There is an exception to the general rule, however, where a conflict of interest exists between the insurer and its insured. In such case the insurer is not permitted to participate in the defense itself. Instead, its obligation to provide a defense is satisfied by reimbursing the insured for the costs of independent counsel. (Thornton v. Paul.) Furthermore, the insurer’s rightful refusal to participate in the defense of such an action does not estop it from raising the defense of noncoverage in a subsequent proceeding. (Thornton v. Paul.) Therefore, since the insurer is not bound by the order in the action against the insured, it is not entitled to intervene as a matter of right. Home Insurance Co. v. Lorelei Restaurant Co.

In effect, Hartford’s argument is that it had a conflict of interest with Northern which prohibited Hartford not only from participating in Northern’s defense but also from intervening. We reject this argument because we fail to find a conflict of interest. Both Thornton and Lorelei are distinguishable in that regard.

In Thornton the defendant putative insured was charged with both negligence and battery. Battery was outside policy coverage. Although both the insurer and the insured would have benefited from a finding that the insured was not liable at all, the insurer’s interests would have been just as well served by a finding that the insured committed a battery. Such a finding would obviously have been in conflict with the insured’s best interests.

Similarly in Lorelei the complaint against the insured alleged both negligent and intentional acts on the part of the insured, the latter of which were outside policy coverage. Again the court found a conflict of interest where the insurer had an interest in proving a set of facts which would have had the effect of subjecting the insured to greater liability.

Hartford here had an interest in showing that plaintiff’s injuries were not covered by Northern’s policy with Hartford. To this end it may have attempted to show that such injuries were unrelated to any work done by O’Brien for Northern. Unlike Thornton and Lorelei, however, such a showing would not have been in serious conflict with Northern’s best interests; nor would it have subjected Northern to greater liability.

The charges are contradictory as to whether O’Brien or Morrison built the scaffold. In either case, however, Northern could have also been subject to liability since more than one party may be in charge of the work and thus liable. Although Northern may have been able to seek active-passive indemnity from the prime contractor who built the scaffold, such indemnification could have been sought from Morrison, if it were the actively negligent party, as well as from O’Brien. Morrison’s payment of workmen’s compensation to plaintiff did not insulate Morrison from third-party suits for indemnification with regard to liability for plaintiff’s injuries. Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.

The authorities are divided as to whether a construction company’s purchase of liability insurance to cover the property owner, pursuant to the company’s contractual obligations, bars a suit for indemnification by the owner against the company. (Compare Vandygriff v. Commonwealth Edison Co. (1980), 87 Ill. App. 3d 374, 408 N.E.2d 1129, with Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032.) Again, however, O’Brien and Morrison are similarly situated in that regard since both purchased such insurance for Northern pursuant to contractual obligations.

The only real detriment to Northern from a finding that O’Brien was not involved would be that Northern could not look to Hartford for coverage. It is clear, however, that an insurer’s interest in negating policy coverage does not in itself create a sufficient conflict to excuse the insurer from conducting the defense. (Maneikis v. St. Paul Insurance Co. (7th Cir. 1981), 655 F.2d 818.) A contrary holding would not only overturn the estoppel rule set forth in Sims v. Illinois National Casualty Co., but would in effect nullify the insurer’s contractual obligation to defend whenever it could show potential application of some policy exclusion.

We also reject Hartford’s contention that the petition was timely because it was unaware, prior to settlement and dismissal, that its interests were not being adequately represented. Hartford was long aware of the diverse interests of the parties involved. We find that Hartford has failed to show that it exercised reasonable diligence in seeking intervention.

Since we find that the trial court properly denied Hartford’s petition to intervene, we need not address the substance of Hartford’s motion to vacate a portion of the dismissal order.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE LORENZ

text:
    STEVE DUGAN, a Minor, by his Father and Next Friend, THOMAS DUGAN, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY et al., Defendants-Appellees.

    First District (5th Division)
    No. 81—3039
    Opinion filed September 9, 1983.

      A. Denison Weaver and Robert J. Long, both of Chicago, for appellant.

      Kasdin & Nathanson, of Chicago (Peter D. Kasdin and Philip J. Nathan-son, of counsel), for appellees.

       This opinion was filed after rehearing was allowed and replaces the earlier opinion which appeared in the May 18,1983, advance sheet at this same page.

   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Steve Dugan, a minor, filed a strict liability action (by his father and next friend) to recover for injuries suffered when a power lawnmower manufactured and sold by the defendants, Roper Corporation and Sears, Roebuck & Company, picked up a small piece of plastic and ejected it at high velocity, blinding plaintiff’s right eye.

A jury returned a verdict in favor of the defendants, and plaintiff appeals, arguing (1) the trial court erred when it permitted the defendants to present evidence that the operator of the lawnmower knew of and ignored warnings contained in the product’s operation manual; (2) the verdict is against the manifest weight of the evidence; and (3) evidence of industry standards was irrelevant. Furthermore, after the supreme court filed its opinion in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, plaintiff argued for the first time that the jury should have been instructed to apply the doctrine of comparative fault “to reduce plaintiff’s recovery by that amount which the trier of fact finds [the operator of the lawnmower] at fault.” 97 Ill. 2d 104, 119.

We affirm. The following evidence is material to our decision.

Carol Favia testified that on May 20, 1974, she was mowing the front lawn of her home while five-year-old Steve Dugan, a neighbor, sat on the steps of her front porch. The power mower, which had been manufactured by Roper and purchased from Sears, came with an owner’s manual. Favia testified she read the manual, including the following warning:

“Do not allow anyone in the area while cutting. Keep children and pets in the backyard while mowing the front yard. Keep a wary eye out for children or passersby. Stop the engine while they are in the vicinity of your mower ***. [Although the area mowed should be completely cleared of all foreign objects, a small object could be accidentally thrown by the mower.”

The manual further warned that “[i]t is imperative in [the mower’s] use and maintenance that the operator always follow the normal precautions set forth in the Rules for Safe Operation as well as other instructions contained in the Owner’s Manual in order to prevent injury or damage.”

Despite having read these warnings, Favia continued to mow the lawn while plaintiff sat nearby on the porch steps. Suddenly, while she was about 10 feet from plaintiff, Favia heard a click, then “Stevie cried out and he put his hand over his eye.” She took him for first aid, and when she returned she found, on the porch steps, the piece of plastic which hit plaintiff in the eye.

At trial plaintiff asserted that the mower was unreasonably dangerous on the grounds that its design permitted it to randomly discharge foreign objects. In support of this theory plaintiff presented expert opinion evidence that alternative product designs were feasible, and were safer than the designs used by the manufacturer.

The defendants responded by presenting evidence, and arguing, that the conduct of Carol Favia constituted the sole proximate cause of plaintiff’s injury. They also presented expert opinion evidence that the mower was not unreasonably dangerous.

The jury was instructed, among other things, that plaintiff had the burden of proving that an unreasonably dangerous condition in the mower was a “proximate cause” of plaintiff’s injury. (See Illinois Pattern Jury Instruction (IPI), Civil, No. 400.02 (1977 Supp.).) The jury was also instructed that: “If you decide that the sole proximate cause of the injury to the plaintiff was the conduct of some person other than the defendants, then your verdict should be for the defendants.” See IPI Civil No. 12.04 (2d ed. 1971).

Opinion

First we shall consider whether the trial court erred by permitting the defendants to present evidence that Carol Favia’s conduct was the sole proximate cause of plaintiff’s injury.

For an injured plaintiff “[t]o recover in strict liability, the injury must result from a condition of the product, the condition must be unreasonably dangerous and the condition must have existed at the time the product left the manufacturer’s control.” Hunt v. Blasius (1978), 74 Ill. 2d 203, 210.

Among the justifications for imposing liability without proof of negligence (i. e., strict liability) on the manufacturers and sellers of products is that “public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained ***.” (Restatement (Second) of Torts sec. 402A, comment c, at 350 (1965).) Therefore, liability is imposed even though “the seller has exercised all possible care in the preparation and sale of his product ***.” (Restatement (Second) of Torts sec. 402(A)(2)(a) (1965).) Nevertheless, strict liability is not absolute liability, and a manufacturer “is not an absolute insurer who is responsible for all physical hurts occurring in the course of using the product.” Helene Curtis Industries, Inc. v. Pruitt (5th Cir. 1967), 385 F.2d 841, 849, cert. denied (1968), 391 U.S. 913, 20 L. Ed. 2d 652, 88 S. Ct. 1806. See also Winnett v. Winnett (1974), 57 Ill. 2d 7, 11.

The difficulty is in where to draw the line between strict liability and absolute liability. This involves a clash between the policy which favors compensating injured consumers, and the policy against imposing on manufacturers and sellers the heavy burden of becoming absolute insurers of the safety of their products. Therefore, “[ujntil Americans have a comprehensive scheme of social insurance, courts must resolve by a balancing process the head-on collision between the need for adequate recovery and viable enterprises.” Helene Curtis Industries, Inc. v. Pruitt (5th Cir. 1967), 385 F.2d 841, 862, cert. denied (1968), 391 U.S. 913, 20 L. Ed. 2d 652, 88 S. Ct. 1806.

One of the mechanisms used to draw the line between these competing interests is the doctrine of proximate cause. As the trial court instructed the jury, “proximate cause” is a “cause which, in natural or probable sequence, produced the injury complained of.” (IPI Civil, No. 400.04 (1977 Supp.).) And, as developed in negligence cases, the concept of proximate cause is used “to limit responsibility for legal or policy reasons for the consequences of negligent conduct.” 1 Dooley, Modern Tort Law sec. 8.03, at 232 (Lindahl rev. 1982).

The same need to limit liability for policy reasons exists with strict liability actions, and “[i]n any product action, the product must be a proximate cause of the damages. This requisite is universally recognized, whether the theory be negligence, warranty, or strict liability in tort.” 2 Dooley, Modern Tort Law sec. 32.03, at 243 (1977). See Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 431.

In the present case the defendants argued that Carol Favia’s conduct was the “sole proximate cause” of plaintiff’s injuries, and that he therefore failed to meet his burden of proving that his injuries were proximately caused by defendants’ product. Clearly, plaintiff would not have been injured if Favia had complied with the warnings she was admittedly aware of. Therefore, even if a cause-in-fact of plaintiff’s injury was an unreasonably dangerous condition in defendants’ product, it was relevant to consider whether Favia’s conduct was a superseding cause which became the sole proximate cause of plaintiff’s injury.

“A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent [tortious conduct] is a substantial factor in bringing about.” (Restatement (Second) of Torts sec. 440 (1965).) “The concept is that there has intervened between the original wrong and the final injury a new and independent force. The injury is imputed to the new force and not the first and more remote cause.” 1 Dooley, Modern Tort Law sec. 8.05, at 235 (Lindahl rev. 1982).

According to plaintiff, however, Favia’s conduct was so foreseeable that, as a matter of law, it could not be considered a superseding cause. Thus, plaintiff concludes the trial court erred when it admitted evidence and argument concerning Favia’s conduct in disregarding defendants’ warnings.

“ '*** The intervention of independent, concurrent or intervening forces will not break the causal connection if the intervention of such independent force was itself probable and foreseeable.’ ” (Emphasis added.) (Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 100.) “The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own [tortious conduct].” (Emphasis added.) Merlo v. Public Service Co. (1942), 381 Ill. 300, 317.

Moreover, “[t]he debatable quality of issues such as *** proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body.” (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84.) Consequently, “[i]f different minds might reasonably draw different inferences from the facts given, then the court must defer to the judgment of the jury on the accompanying issues of foreseeability and the effect of an intervening cause.” Peck v. Ford Motor Co. (7th Cir. 1979), 603 F.2d 1240, 1243.

Applying these principles to the present case, and assuming for the sake of argument that plaintiff’s injury was caused by an unreasonably dangerous condition in defendants’ product, the pertinent question is this: could reasonable people disagree about whether the intervening force (Carol Favia’s conduct in knowingly disregarding defendants’ warnings) was so probable, natural, and foreseeable that the defendants should remain strictly liable for the injury.

There is no doubt that with any given product somebody will eventually disregard the manufacturer’s warnings, thereby causing injuries. Nevertheless, as noted above, defendants in strict liability cases are not absolutely liable as insurers, and we find that reasonable people can disagree over whether Favia’s conduct was so probable, natural, and foreseeable that the defendants should be held strictly liable for the alleged unreasonably dangerous condition in their product. We therefore find that it was not against the manifest weight of the evidence for the jury to decide that Favia’s conduct was a superseding cause which became the sole proximate cause of plaintiffs injuries.

Next we note that plaintiff initially argued that the trial court erred when it admitted evidence of industry standards. After its initial brief was filed, however, the supreme court decided Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, and plaintiff’s petition for rehearing concedes that, in light of the supreme court’s decision, the trial court did not err when it ruled such evidence admissible.

Finally, plaintiff’s petition for rehearing argues (for the first time) that the jury should have been instructed to apply the doctrine of comparative fault. Under the supreme court’s decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 118, “the defense of comparative fault is applicable to strict liability cases” and “the total damages for plaintiff’s injuries [should] be apportioned on the basis of the relative degree to which the defective product and the plaintiff’s conduct proximately caused them.” However, this apportionment of damages only applies “[o]nce defendant’s liability is established ***” (97 Ill. 2d 104, 119), and the supreme court did not abolish the requirement that a plaintiff who seeks recovery under a strict liability theory must prove that his injury was proximately caused by an unreasonably dangerous condition in the defendant’s product.

The jury in the present case found that the defendants were not strictly liable for plaintiff’s injury, and, as we held above, it was not manifestly erroneous to find that a third party was the sole proximate cause of plaintiff’s injury. Comparative fault, and its apportionment of damages, does not apply to defendants who have been found not liable to the plaintiff, and the Coney case is of no help to plaintiff.

Based on all the reasons given above, the judgment of the circuit court is affirmed.

Affirmed.

WILSON, P.J., and MEJDA, J., concur.


author: JUSTICE JIGANTI

text:
    MARY ANNE WITKOWSKI, Plaintiff-Appellant, v. ST. ANNE’S HOSPITAL OF CHICAGO, INC., Defendant-Appellee.
    First District (4th Division)
    No. 82—193
    Opinion filed March 31, 1983.
    Howard M. Rubin, of Chicago, for appellant.
    Bernard J. Echlin and Michael W. Duffee, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Mary Anne Witkowski, was employed by the defendant, St. Anne’s Hospital of Chicago, until she was discharged from her position as the hospital’s chief physical therapist in 1976. Following her discharge, the plaintiff filed her three count complaint in the circuit court of Cook County, alleging that she had been wrongfully discharged from her employment by the defendant and was entitled to relief under both contract and retaliatory discharge causes of action; that the defendant had improperly withheld accumulated vacation pay to which she was entitled and that the defendant intentionally caused her to suffer emotional distress. The circuit court granted the defendant’s motion for summary judgment and dismissed all three counts of the plaintiff’s complaint. The plaintiff now appeals that dismissal to this court and again raises the same three issues that were presented below, contending that she has raised sufficient genuine issues of material facts to have withstood the defendant’s motion for summary judgment on all three counts.

The plaintiff first asks this court to determine whether she was wrongfully discharged from her employment by the defendant. In essence, the plaintiff contends that she was discharged because she became eligible to collect long-term disability benefits from the hospital. In contrast, the defendant argues that the plaintiff was fired because she abandoned her job without giving prior notice to anyone in the hospital administration. The evidence adduced in the motion for summary judgment was that the plaintiff worked at the defendant hospital for approximately 24 years during the time period between 1945 and 1976. At different times, the plaintiff performed as a registered physical therapist, as a registered nurse and as the hospital’s chief physical therapist. She held the last position continuously from 1964 until she was fired in 1976. As chief physical therapist, the plaintiff administered physical therapy and supervised other employees in the physical therapy department. At no time during the plaintiff’s employment history with the defendant did she enter into a written employment contract.

The events leading up to this lawsuit revolve around an arthritic condition from which the plaintiff began to suffer in 1970. Between 1970 and 1976, the plaintiff was treated for her arthritis by Dr. Theodore Lescher, a member of the staff of the defendant hospital. Early in 1976, the plaintiff’s condition apparently became severe. On February 23, 1976, she made arrangements for preadmission into the defendant hospital. On February 24, 1976, the plaintiff performed her job at the hospital until sometime in the afternoon when she was admitted into the hospital as a patient. Although the plaintiff was familiar with a hospital policy that required hospital employees to notify their superiors in advance before absenting themselves from their jobs, she did not notify either her supervisor or anyone else in the hospital administration prior to the time she left her job and was admitted as a patient.

The plaintiff remained hospitalized for approximately one week while she received treatment for arthritis and underwent an operation to remove ingrown toenails. The day after the plaintiff’s admittance into the hospital, she was visited in her hospital room by her supervisor, Sister Leonoris. Leonoris testified that she stated that the plaintiff had exhibited unprofessional conduct by abandoning her job without prior notice and had thereby “terminated herself.” Leonoris further questioned the plaintiff regarding the seriousness of her actual physical condition and later called Dr. Lescher into her office to question him regarding the plaintiff’s condition. Later that same day, Leonoris testified that she met with Antonio Maienza, the hospital administrator, and that they jointly reached a decision to discharge the plaintiff. However, the plaintiff was not given notice of their alleged decision at this time.

The plaintiff’s condition did not improve following her release from the hospital and she remained confined to her home. Dr. Lescher prepared a medical certificate that was submitted to the defendant on approximately March 26, 1976, which stated that the plaintiff continued to suffer pain and would be absent from work indefinitely. Subsequently, Maienza sent a letter to the plaintiff on May 7, 1976, notifying her that her employment had been terminated effective April 24, 1976. The letter gave no reason for the plaintiff’s discharge. Upon receiving the letter, the plaintiff telephoned Maienza, and she later testified that he again gave her no explanation for her discharge during the course of the telephone conversation. However, Maienza testified that he told the plaintiff that she was fired because of her “unprofessional behavior” in leaving her patients unattended on the day she was admitted into the hospital. Maienza mailed yet another letter to the plaintiff on May 14, 1976, stating that the plaintiff’s “unprofessional behavior” in leaving her job without prior notice and in leaving her patients unattended was the cause of her discharge.

The defendant hospital furnishes a long-term disability plan which provides benefits to hospital employees in the event that they suffer from a total disability. A person is defined as being totally disabled if he is unable to perform all of the duties of his regular job. The plan provides for benefits up to 50% of an employee’s monthly salary in the event that he becomes totally disabled. Importantly, once an employee is discharged from or resigns from his position with the hospital, his eligibility under the long-term disability plan ceases. An employee is allowed 90 days to file a claim after becoming disabled. The plaintiff in the instant case has never filed a claim for long-term disability benefits with the defendant hospital or otherwise pursued any claim procedures under the plan.

The plaintiff has attempted to set forth two different causes of action relating to her alleged wrongful discharge. First, she contends that she has stated a cause of action in contract by alleging that the defendant’s actions in discharging her breached an implied covenant of good faith and fair dealing that was present in her at-will employment relationship with the defendant. Second, the plaintiff argues that she has raised a cause of action in tort for retaliatory discharge as a matter of law because the defendant’s actions in discharging her contravened an important State “public policy” concern, namely, the protection of employee benefit plans. (See Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.) In addition, the plaintiff contends that she has established sufficient genuine issues of material facts to support her causes of action and that therefore, it was improper for the trial court to enter summary judgment in favor of the defendant.

In response, the defendant argues that the plaintiff has failed to state a cause of action in either contract or tort. Alternately, the defendant contends that even if we recognize the plaintiff’s arguments to be viable causes of action, there were no genuine issues of material fact regarding the reasons for the plaintiff’s discharge.

Preliminarily, however, the defendant contends that the Federal law expressed in the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. sec. 1001 et seq. (1976)) has preempted the plaintiff’s wrongful discharge claims and that consequently, her claims may only be brought in the United States District Court. In order to consider the defendant’s contention, we must first determine whether in fact the State law is preempted by the Federal law and secondly, even if it is so preempted, whether the State court is preempted by the Federal court.

We believe that the wrongful discharge claims advanced by the plaintiff necessarily fall under the provisions of ERISA. The plaintiff’s complaint states in pertinent part:

“9. The Defendant’s action, of on or about May 7, 1976 in terminating Plaintiff without any reasonable cause or justification therefore, was done solely to prevent Plaintiff from participating under the LTD [long term disability] plan to which she was entitled as part of her employment.”

The plaintiff’s allegation closely tracks the language of section 510 of ERISA which forbids an employer from discharging an employee because of his eligibility to receive benefits under an employee benefit plan:

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan *** or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, [or] this sub-chapter ***.” (29 U.S.C. sec. 1140 (1976).)

Because the actions that the plaintiff complains of here so closely resemble the behavior that is forbidden under section 510 of ERISA, we believe that the plaintiff’s cause of action is necessarily subject to analysis under the pertinent provisions of ERISA.

The Federal statute provides that an ERISA claim will supersede all State causes of action. (29 U.S.C. sec. 1144(a) (1976).) The plaintiff argues that hers is not an ERISA claim because she has never sued for benefits under ERISA or in any other way advanced an ERISA cause of action. However, we believe that the plaintiff’s argument misses the point. Specifically, section 514 of ERISA provides:

“*** [T]he provisions of this subchapter [which includes section 510] *** shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan [subject to this act] ***.” (29 U.S.C. sec. 1144(a) (1976).)

Thus, because the plaintiff’s claim so closely tracks the language of section 510 of ERISA, she is necessarily bound to pursue her claim under the dictates set out by Congress when it enacted ERISA. The plaintiff may not instead elect to pursue a State tort cause of action or a State contract cause of action where Congress has so specifically provided that Federal law rather than State law is applicable to a claim such as the plaintiff’s. Section 514 provides that the “State laws” that are superseded by ERISA include:

“*** [Aju laws, decisions, rules, regulations, or other State action having the effect of law, of any State. ***” (29 U.S.C. sec. 1144(c)(1) (1976).)

The plaintiff is therefore precluded from relying upon State law where Congress has chosen to provide that State law, such as the law upon which the plaintiff bases her tort and contract claims, is superseded by the provisions of ERISA.

The plaintiff also argues that her wrongful discharge claims are only indirectly and peripherally related to ERISA and that therefore, she need not bring her claim under the provisions of ERISA and may instead rely upon State law. We disagree. It is true that certain cases cited to us by the plaintiff conclude that where State law only tangentially touches upon areas with which ERISA is concerned, the State law at issue is not superseded by Federal law. (See, e.g., Provience v. Valley Clerks Trust Fund (E.D. Cal. 1981), 509 F. Supp. 388, and cases cited therein.) However, we do not believe the case at bar to be such a case. The plaintiff claims that she was discharged solely because she became eligible to collect long-term disability benefits under the defendant’s employee benefit plan. Section 510 of ERISA specifically makes it unlawful for the employer to discharge an employee for the reason cited by the plaintiff. (29 U.S.C. sec. 1140 (1976).) We thus believe that the plaintiff’s claim falls squarely and directly into the confines set out in ERISA rather than merely peripherally affecting an area with which ERISA is concerned.

Having established that this is an ERISA cause of action and that therefore, Federal law must apply, we must now determine whether a State court is precluded from considering the merits of the plaintiff’s claim because of the preemption clause contained in section 502(e)(1) of ERISA. (29 U.S.C. sec. 1132(e)(1) (1976).) Specifically, there are two subsections of section 502 which conceivably empower the plaintiff to bring her section 510 wrongful discharge claim. If the plaintiff’s claim falls under subsection (a)(1)(B), State courts have concurrent jurisdiction under subsection (e)(1) to consider the claim. However, if the plaintiff’s claim falls under subsection (a)(3), the Federal courts are granted exclusive jurisdiction over the case under subsection (e)(1). These pertinent subsections of section 502 provide:

“(a) A civil action may be brought—
(1) by a participant or beneficiary—
* * *
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
* * *
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;
* * *
(e)(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.”

As we determined earlier, we are bound to follow Federal law in interpreting the statute. The Federal courts have concluded that subsection (a)(3) governs suits brought under section 510. (Kross v. Western Electric Co. (N.D. Ill. 1982), 534 F. Supp. 251; McGinnis v. Joyce (N.D. Ill. 1981), 507 F. Supp. 654; Bittner v. Sadoff & Rudoy Industries (E.D. Wis. 1980), 490 F. Supp. 534.) Therefore, because section 502(e)(1) gives the Federal courts exclusive jurisdiction of all claims falling under section 502(a)(3), we find that this court is preempted from considering the merits of the plaintiff’s wrongful discharge arguments.

As a final note, even if this court concluded for some reason that the plaintiff’s claim fell under subsection (a)(1)(B) and that therefore this court would have concurrent jurisdiction to consider her claim under subsection (e)(1), we would still be precluded from considering the merits of the plaintiff’s arguments. Specifically, in order for the plaintiff to pursue an action in court under subsection (a)(1)(B), she must first have exhausted the claim procedures that are provided under the benefit plan at issue. (Kross v. Western Electric Co. (N.D. Ill. 1982), 534 F. Supp. 251.) In the instant case, the plaintiff has not even begun to pursue the claim procedures under the long-term disability plan, and therefore, this court would be barred from considering her section 510 claim even if we possessed concurrent jurisdiction to reach the merits.

The second issue raised by the plaintiff on appeal concerns whether she stated sufficient genuine issues of material facts to withstand the defendant’s motion for summary judgment on her claim to recover pay for accumulated vacation time. Specifically, the plaintiff argues that she had accumulated 50 vacation days at the time of her discharge but received pay from the defendant for only 30 of those days.

The only written policy of the hospital concerning accumulated vacation time is contained in the hospital’s employee handbook. The handbook provides that an employee may accumulate up to 30 days of vacation time. Richard Dalton, the personnel manager at the defendant hospital, testified that there was an informal but unofficial practice at the hospital to allow department heads such as the plaintiff to accumulate in excess of 30 vacation days. However, no employee has ever been paid for more than 30 vacation days upon either a voluntary or involuntary termination from employment.

We believe that the trial court properly granted summary judgment on this count because we find that there was no genuine issue as to any material fact. It is undisputed that the employee handbook allows accumulation of only 30 vacation days and that no employee has ever received pay for more than those 30 days upon termination. It does not follow that merely because certain employees may accumulate extra vacation time, it must also be presumed that they are entitled to be paid for the extra accumulated time in the event that they are discharged. Any right of the plaintiff to be paid for accumulated vacation time was properly governed by the provisions of the employee handbook and the pre-existing employment policy of the hospital not to pay for accumulated vacation time in excess of 30 days. Therefore, we do not believe that the trial court erred in entering summary judgment on this count.

The final issue advanced by the plaintiff on appeal is whether the trial court improperly entered summary judgment in favor of the defendant on the plaintiff’s claim for intentional infliction of emotional distress. In essence, the plaintiff claims that the alleged action of the defendant in wrongfully discharging her in order to prevent her from securing long-term disability benefits was so outrageous as to constitute a cause of action in tort capable of withstanding the defendant’s motion for summary judgment.

In order to determine whether the plaintiff has stated a cause of action for intentional infliction of emotional distress, we must accept as true the allegations contained in the plaintiff’s complaint. Specifically, the plaintiff argues that she was discharged from her position at the hospital solely because she became eligible to collect long-term disability benefits; that without justification, the defendant stated to the plaintiff, a long-term employee of the hospital who had never before been subject to any disciplinary action, that she was fired because she had acted in an unprofessional manner and had abandoned her position and patients; that the defendant’s actions aggravated the plaintiff’s pre-existing ulcer condition, caused her to suffer insomnia and made it necessary for her to take medication; and that the defendant could have foreseen that the plaintiff would suffer emotional distress because it had possession of the plaintiff’s medical records and therefore knew that the plaintiff’s disability was of a serious nature. The plaintiff further states that as the result of her wrongful discharge, she has had to accept support from her family and dissipate her life’s savings in order to survive.

In Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765, the Illinois Supreme Court determined that a defendant will be liable for intentional infliction of emotional distress “ '*** only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.’” (66 Ill. 2d 85, 90, 360 N.E.2d 765, 767; see also Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157.) The court further observed that “infliction of emotional distress alone is not sufficient to give rise to a cause of action. The emotional distress must be severe. Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the ambit of the term ‘emotional distress,’ these mental conditions alone are not actionable. ‘The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it ***.’ ” Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765, 767.

In Public Finance the plaintiff alleged, among other things, that a finance company’s employees called the plaintiff and visited her home several times weekly over a seven month period, called the plaintiff at her daughter’s hospital bed despite the fact that they knew the daughter’s condition was severe and that the plaintiff herself was sick and nervous, induced the plaintiff to write a check and promised that the check would not be processed, and telephoned an acquaintance of the plaintiff and informed her that the plaintiff was writing bad checks. However, the supreme court found that this conduct was not of such an extreme and outrageous nature as to constitute a basis for recovery under the theory of intentional infliction of emotional distress.

Following Public Finance, the courts have adhered to the supreme court’s admonition that only “extreme and outrageous” conduct will suffice to support a cause of action for intentional infliction of emotional distress. For example, in Kelly v. Franco (1979), 72 Ill. App. 3d 642, 391 N.E.2d 54, the plaintiffs alleged that their neighbors, the defendants, threatened them in order to force them to move from their home, complained about their son to the police regarding trivial matters, made threatening phone calls and consequently jeopardized the job of one of the plaintiffs. The court found that the plaintiff had not stated a cause of action for intentional infliction of emotional distress and observed, “[These] are actions without any social utility which certainly would have been irritating to the strongest of psyches. However, these actions do not go beyond mere indignities, threats, or trivialities and do not constitute the outrageous conduct that no reasonable man could be expected to endure.” 72 Ill. App. 3d 642, 648-49, 391 N.E.2d 54, 59; see also Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175; Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591; Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373.

Under the reasoning of Public Finance and the cases that followed, we do not believe that the plaintiff’s allegations in this case regarding the defendant’s actions demonstrate conduct that is so outrageous, so atrocious and so utterly intolerable that a reasonable person could not be expected to endure it. If the defendant actually behaved as the plaintiff contends, we cannot condone such conduct; yet neither can we state that the defendant’s actions rose to the level of outrageousness and severity necessary to set forth a cause of action for intentional infliction of emotional distress.

The plaintiff refers this court to Robertson v. Travelers Insurance Co. (1981), 100 Ill. App. 3d 845, 427 N.E.2d 302, where an employee was found to have stated a cause of action for intentional infliction of emotional distress where the employer’s insurance company induced the employee to rely upon the insurer’s assurances of fair treatment until the statute of limitations had run on the employee’s worker’s compensation claim. Once the statute of limitations had run, the insurer notified the employee that it would not honor the employee’s claim. The employee, who was recovering from surgery and could not work, was forced to borrow from relatives, go on public aid and accept charity. He further became “highly nervous and forgetful” as the result of his financial condition.

We agree that Robertson poses facts very similar to those presented in the instant case. However, we do not agree that the conduct complained of in Robertson was so outrageous as to meet the standard for intentional infliction of emotional distress set out by the supreme court in Public Finance. Rather, we think this cause of action is reserved for especially abusive and atrocious transgressions, and we will not expand upon the supreme court’s definition to cover such allegations as the instant plaintiff’s, as heartless and callous as those allegations may first appear. Because we are not bound to follow the reasoning of Robertson, we decline to do so here. We therefore find that the trial court properly granted summary judgment on this count of the plaintiff’s complaint.

For the foregoing reasons, we affirm the trial court’s entry of summary judgment on all three counts of the plaintiff’s complaint.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE PERLIN

text:
      In re MARRIAGE OF KATHRYN M. LA RENO, Petitioner-Appellee, and RICHARD R. LA RENO, Respondent-Appellant.
    First District (2nd Division)
    No. 82—440
    Opinion filed March 29, 1983.

      James A. Palmisano, of Chicago, for appellant.
    Paul E. Peldyak and Edward G. Krantz, both of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Kathryn and Richard La Reno (Kathryn and Richard) were divorced on May 10, 1976. On August 27, 1980, Kathryn filed a post-decree petition requesting that the written divorce decree be amended to require Richard to pay the real estate taxes on her residence. The trial court, on February 18, 1982, granted her petition. Richard appeals and contends that the court lacked jurisdiction to order him to pay the real estate taxes on Kathryn’s residence and, in the alternative, that the court erred in holding that he was obliged to pay those taxes.

Richard and Kathryn were married on April 3, 1948. Their marriage produced four children, two of whom were minors at the time the marriage was dissolved. Kathryn separated from Richard in 1974 and thereafter sued for divorce on grounds of mental cruelty. At the time of the dissolution proceedings, Kathryn was unemployed and had been hospitalized for approximately two to three months in 1975. She had also required other medical and psychological treatment because she had been experiencing headaches, nervousness and vomiting allegedly as a result of Richard’s conduct towards her. Richard worked for Arthur Rubloff & Company at the time the marriage was dissolved.

Richard and Kathryn reached an oral property settlement which was never reduced to writing. Instead, at the “prove-up” on April 13, 1976, Kathryn testified to the terms of their oral agreement. She stated that Richard had agreed to pay the real estate taxes on the residence he was to purchase for her. After Kathryn testified, Richard testified that he had discussed the oral agreement with his attorney, understood the agreement, entered into it voluntarily and intended to be bound by its terms. Following Richard’s testimony, Judge Bernard Wolfe held that the marriage would be dissolved. He also stated: “The Court incorporates *** the provisions of the oral agreement in the Decree, to be submitted to the Court. Both counsel approve the decree. Gentlemen, I would suggest that both parties approve the Decree in its final form and file a transcript ***.”

After the prove-up on April 13, 1976, and before the decree was submitted to the court on May 4, Richard dismissed his attorney for failing to act in Richard’s best interests. In a letter to his attorney, Richard claimed that at the prove-up he had wanted to object to Kathryn’s testimony that he was required to obtain life insurance on his life naming Kathryn as his beneficiary. Since Richard’s attorney told him to “be quiet,” Richard assumed that the attorney would clarify all uncertainties when Kathryn finished testifying. The attorney, however, remained silent. Richard’s letter did not dispute Kathryn’s testimony regarding the payment of real estate taxes.

On May 4, 1976, Kathryn’s attorney submitted the proposed written divorce decree to the court. Judge Wolfe, however, delayed approval of the decree until he could review it and determine whether it accurately set forth the parties’ agreement. Paragraph 11 of the proposed decree required Richard to purchase a residence for Kathryn in a location of her choice; his liability for the residence was not to exceed $87,500 including a down payment of not less than $30,000. Paragraph 11 stated further:

“*** [Richard] has the option of financing the balance of the purchase price with the payment of any mortgage principal and interest to be his sole responsibility. [Richard] shall pay to [Kathryn] each month when said mortgage installment shall be due, an amount equal to the current installment of the mortgage principal and interest which sum shall be paid by [Kathryn] to the Mortgagee. [Kathryn] will be entitled to claim any interest paid on said mortgage on her personal Income Tax Returns. [Kathryn] will pay any real estate taxes, assessments and maintenance costs in connection with the said residential real estate and shall be entitled to the appropriate income tax deductions in connection therewith ***.”

Title to the residence would be held in a land trust with Kathryn as beneficiary. Upon her death, the La Reno children would become the beneficiaries of the trust.

On May 10, 1976, Judge Wolfe stated that he had compared the decree with the record, exhibits and his own notes. He commented that the decree “substantially” conformed to the record and to the parties’ agreement and approved it. Neither Kathryn nor Richard sought to clarify the language of paragraph 11 as to which of them was responsible for furnishing the funds to pay the real estate taxes. Richard, proceeding pro se, objected to entry of the decree on the ground that it did not accurately reflect the parties’ agreement, but he did not indicate in what respect the decree was erroneous. The court held that Richard was bound by Kathryn’s testimony because Richard had previously testified that he heard her testimony, understood the terms of their agreement and intended to be bound by those terms.

On June 9, 1976, Richard filed a motion to vacate the May 10, 1976, divorce decree on the ground that he had not consented to the property settlement agreement. This motion was heard by Judge David Linn. On June 14, 1976, Judge Linn entered a “Supplement to Judgment for Divorce” in which Richard was allowed to withdraw his motion to vacate. In addition, Richard was required to pay Kathryn’s attorney fees; to pay Kathryn $10,000 in a lump sum as additional alimony; and to pay Kathryn all other sums due to her under the terms of the May 10, 1976, divorce decree.

Four years later, on August 27, 1980, Kathryn filed an “emergency petition” in which she alleged that under the oral agreement to which she testified on April 13, 1976, Richard was required to provide her with the funds to pay the real estate taxes on her residence. Kathryn also alleged that the property settlement agreement was to be included in the divorce judgment. Although the decree appears to require Kathryn to pay the real estate taxes with her own funds, Kathryn alleged that the decree was in error and requested the court to correct the May 10, 1976, decree to conform to the court’s intended judgment. The petition also requested the court to order Richard to reimburse Kathryn for the real estate taxes she paid from 1976 through 1979. On July 14, 1981, Judge Charles Fleck held that under the terms of their oral agreement Richard was obliged to pay Kathryn’s real estate taxes.

On August 12, 1981, at Richard’s request, Judge Fleck vacated his order of July 14, 1981, to hear additional evidence on whether Richard was required to pay the real estate taxes. On December 29, 1981, an evidentiary hearing was held at which Richard testified that he nevér paid the real estate taxes on Kathryn’s residence because it was his understanding that Kathryn had the sole responsibility of paying those taxes. Richard also testified that the June 14, 1976, supplemental order entered by Judge Linn was based on a second oral agreement which he had negotiated with Kathryn after the original divorce decree was entered and that this second agreement did not require him to pay the real estate taxes on her residence. Richard then called Kathryn as an adverse witness. Kathryn admitted that she had paid from her own funds the real estate taxes for 1976, 1977 and 1978 but could not recall whether she had paid the taxes for 1979. She also admitted that she first made a demand on Richard to pay the real estate taxes when she filed her emergency petition on August 27, 1980. Kathryn testified that a signature on the “Supplement to Judgment for Divorce” resembled her signature but she did not recall the document or recall signing it.

Testifying in her own behalf at the December 29, 1981, evidentiary hearing, Kathryn stated that it was her understanding that Richard would provide her with the necessary funds to pay the real estate taxes. Kathryn also testified that she had asked the Glenview State Bank, the trustee of the land trust holding title to her residence, to pay the taxes and had inquired why there was no escrow account for payment of those taxes. Richard was a director of the bank. On February 18, 1982, Judge Fleck entered an order holding Richard responsible for providing Kathryn with the funds necessary to pay the real estate taxes on her residence and requiring Richard to reimburse her for the prior real estate taxes paid by her.

On appeal, Richard cites the rule that property rights created in a divorce decree become vested after 30 days and that the trial court lacks jurisdiction thereafter to modify those rights. (In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 956, 407 N.E.2d 746.) Since the property rights created in the divorce decree entered on May 10, 1976, vested before Kathryn filed her emergency petition on August 27, 1980, Richard contends that the trial court did not have jurisdiction to order him to pay the real estate taxes. We cannot agree.

A trial court has authority to enter a nunc pro tunc order to conform a written record of the judgment to the judgment in fact rendered by the court. (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 809, 263 N.E.2d 708.) The correction must be based on some note, memorandum, or memorial paper remaining in the file or upon the records of the court; it cannot be based on the recollection of the trial judge or other persons. Moreover, this power is limited to entering into the record something which was actually done; the alleged error sought to be corrected must be clerical and not judicial. (In re Marriage of Gingras (1980), 86 Ill. App. 3d 14, 16, 407 N.E.2d 788.) The distinction between clerical error and judicial error depends not so much upon the source of the error but upon whether it was the deliberate result of judicial reasoning and determination. (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 810.) In Neumann v. Neumann (1978), 58 Ill. App. 3d 211, 373 N.E.2d 57, not cited by either party, there was a discrepancy between the property settlement agreement and the divorce decree as entered, although the trial court intended to incorporate the agreement into the judgment. The appellate court held that the discrepancy was not a judicial error and concluded that the trial court had jurisdiction to correct the decree so that it would accurately reflect the judgment rendered by the trial court. 58 Ill. App. 3d 211, 214.

In the instant case, at the conclusion of the prove-up on April 13, 1976, Judge Wolfe stated: “The Court incorporates, gentlemen, the provisions of the oral agreement in the Decree, to be submitted to the Court.” Thereafter, the judge indicated that the written judgment was to reflect the testimony received at the prove-up. Since it appears that Judge Wolfe intended to incorporate the parties’ oral property settlement agreement into his written judgment, we conclude that Judge Fleck had jurisdiction to correct any variance he found between that agreement and the decree.

The next issue in this case is whether there was in fact a variance between the parties’ oral property settlement agreement and the May 10, 1976, divorce decree. The divorce decree apparently requires Kathryn to pay the real estate taxes on her residence from her own funds. At the prove-up on April 13, 1976, Kathryn’s attorney asked her the following question:

“Kathryn’s attorney: *** In terms of the payment on - for this real estate, Mr. La Reno will make the payments to you as part of a property settlement agreement, you will then - The payments that he makes will be an amount equal to the mortgage and taxes. You will make those payments then to the mortgagee and to the tax people and you will be entitled to a deduction for the interest and the real estate taxes. However, you will be liable for the payment of the real estate taxes for any assessments and for the maintenance of this property.
Kathryn: Yes.”

Following Kathryn’s testimony, Richard testified that he had agreed to the terms to which Kathryn had testified. Richard now contends that the question asked of Kathryn regarding the payment of real estate taxes was ambiguous. Kathryn, however, asserts that her testimony clearly placed on Richard the responsibility of providing funds for payment of the real estate taxes and that she is responsible only for any tax assessments and maintenance costs.

Language is ambiguous if its meaning is susceptible of being interpreted in more than one sense. The simple failure, however, of the parties to agree on the meaning of the terms does not render language ambiguous. (In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 956, 407 N.E.2d 746.) The meaning of the question posed to Kathryn by her attorney regarding the ultimate source of funds to pay the real estate taxes appears clear. Kathryn is responsible for paying from her own funds only the maintenance costs and any assessments. Both Richard and Kathryn share responsibility in the payment of the mortgage and the real estate taxes: Richard must provide the funds necessary for the payment of the mortgage and the real estate taxes; Kathryn, in turn, is responsible for actually transmitting payment of those funds to the mortgagee and the tax authorities. Thus, as to third persons, although Kathryn may be legally liable for the payments, she has a right to look to Richard for the necessary funds.

After the evidentiary hearing, Judge Fleck found that Richard had indeed agreed to pay the real estate taxes on Kathryn’s residence. Richard contends that Judge Fleck erred in this finding because he allegedly focused only upon Kathryn’s testimony at the prove-up of April 13, 1976, and the May 10, 1976, divorce decree. Richard argues that had Judge Fleck considered the entire record, the evidence would have clearly indicated that the parties intended for Kathryn to pay the real estate taxes from her own funds. We have reviewed the record of the evidentiary hearing and conclude that the court’s judgment finding Richard liable to Kathryn for payment of the real estate taxes was not contrary to the manifest weight of the evidence. (Arakie v. Hatoff (1972), 5 Ill. App. 3d 1073, 1076, 284 N.E.2d 703.) In our judgment, the trial court did not err when it conformed the divorce decree to the parties’ oral property settlement agreement.

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

Affirmed.

STAMOS and HARTMAN, JJ., concur.