author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR BOVIO, Defendant-Appellant.
    Second District
    No. 82—336
    Opinion filed October 18, 1983.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of Elgin, and Frank Weiss, of State’s Attorneys Appellate Service Commission, of Chicago, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a jury trial, defendant Arthur Bovio was found guilty of theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(b)) and deceptive practices (Ill. Rev. Stat. 1981, ch. 38, par. 17 — l(B)(d)). Defendant was sentenced to two years’ imprisonment on the theft-by-deception offense, and the judgment on the verdict for deceptive practices was vacated by the trial court as constituting a lesser-included offense which arose from the same act as the theft by deception.

Defendant appeals, contending that (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court erred in admitting computer-generated bank records without a proper foundation having been laid.

On September 29, 1981, defendant was indicted by the grand jury. Count I of the indictment charged defendant with deceptive practices (Ill. Rev. Stat. 1981, ch. 38, par. 17 — 1(d)), alleging that he, with intent to defraud, delivered a check in payment for a load of diesel fuel knowing that the check would not be paid. Count II charged defendant with theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(b)), alleging that by deception defendant obtained control over the diesel fuel by paying for it with a check knowing that there were insufficient funds in his account to cover the check.

Only the parts of the trial testimony pertinent to the issues raised on appeal will be discussed. The State’s first witness was John Robson, president of Cooksy Oil Company. Robson testified that on Wednesday, April 15, 1981, a man identifying himself as Arthur Bovio called to place an order for a load, approximately 6,900 gallons, of diesel fuel. Based on the request, Robson hung up, computed a price, and called Bovio back with the figure of $7,728. In line with the company’s policy, Robson told Bovio that since he was a new customer, payment must be made by cashier’s or certified check. Bovio reportedly agreed to comply with this requirement. In reliance on that conversation, Robson called Chester Miroslaw, his manager, and ordered that a load of diesel fuel be transported the next day to a station at Route 47 and Jericho Road in Sugar Grove, Illinois.

Robson testified that on the following day, after receiving a call from Miroslaw, Robson called Bovio and asked why neither a cashier’s nor a certified check was there for the fuel hauler to pick up. Bovio allegedly said that there was a registered check, that it was just as good as a certified check, and that there were funds in the bank to cover it. Robson tried to call the drawee, the Bank of Sugar Grove, to confirm sufficient funds, but the bank was closed. Finally, Robson called Miroslaw and authorized delivery and acceptance of the registered check.

Robson testified that later that day, Bovio called again and asked for a price on a load of gasoline. Robson quoted a price but told Bovio that the gasoline would not be delivered until the check for the diesel fuel had cleared. Bovio allegedly reiterated that the check was good and would clear.

On the following Monday, Robson noticed for the first time that the check was postdated to April 26, 1981. He said that he had the check deposited, instructing the bank to hold it for up to 14 days. On April 27, the check was returned unpaid.

On April 28, Robson called Bovio, telling him that if he did not deliver a certified check in the near future, Robson would institute criminal proceedings. On May 4, Robson received a copy of an automatic stay order announcing Bovio’s bankruptcy and listing Cooksy Oil as one of the creditors. Robson testified that on several occasions, he spoke with Bovio over the telephone and in bankruptcy court. During some of those discussions, Bovio allegedly acknowledged the debt and said it would be paid.

Chester Janiga, the fuel hauler, testified that he had orders to deliver a load of diesel fuel to Route 47 and Jericho Road on April 16, 1981, and to pick up a certified check in payment. At the station, he was given a check imprinted with the word “registered.” He refused to accept it pending instructions. After calling Miroslaw, he unloaded 4,900 gallons of diesel fuel at the station and delivered the rest to a farm several miles away.

Chester Miroslaw, Cooksy Oil’s manager, testified that on April 15, 1981, he received a call from someone at Bovio Automotive. He forwarded the call to Robson because it was from a new customer. Robson later called him to arrange for delivery of diesel fuel with instructions to get a certified check. Miroslaw then made the appropriate arrangements with Janiga.

On April 16, Janiga called Miroslaw, which prompted Miroslaw to call Robson. Acting on instructions from Robson, Miroslaw called Janiga back and said to unload the fuel. Miroslaw further testified that Janiga later returned to the office and delivered the check, bill of lading, and delivery ticket. Miroslaw contacted Robson who picked up the check and other documents.

The State’s next witness, Marilyn Long, assistant cashier at the Bank of Sugar Grove, testified that bank customers receive a monthly statement, and if there are any errors on it, the customer is to notify the bank -within 10 days. She described the route a check takes once a customer drafts it on an account at the Bank of Sugar Grove and gives it to someone: the payee takes the check to his or her own bank; that bank forwards it to the Federal Reserve Bank; the Federal Reserve Bank processes it and sends it to a data center used by the Bank of Sugar Grove. The data center makes all the computations of transactions for the account. The data center makes and keeps an original microfiche, makes a duplicate microfiche for the bank, and prints out a paper statement for the bank to send to its customer. Ms. Long testified that most banks use the same or a similar system. However, she did not describe the equipment that is used at the data center, or the method that is used there for entering deposits or withdrawals, or the type of program that is used. The microfiche is kept and relied on by the bank in its normal course of business. Ms. Long identified a copy of Bovio Automotive’s checking account bank statement for April 1981, People’s exhibit No. 5, and said she verified its accuracy by checking it against the bank’s microfiche that morning.

Counsel for the defendant objected to the foundation that had been laid for People’s exhibit No. 5. The judge overruled the objection and allowed the exhibit into evidence. Defendant’s additional objection that the statement contained information of other checks which were not paid was also overruled and the court stated that any problems in that regard could be cured by instructions.

Ms. Long explained the meaning of the various columns on the monthly statement. She testified that the highest balance for the month was $3,591.26 and that the account was overdrawn on April 16 and 17. She identified the check that had been delivered in payment for the fuel and testified that the bank did not have anything called a “registered check.” She said the check had not been paid because the signature did not match the one on the bank’s signature card.

Testifying on his own behalf, defendant said that on April 15, 1981, he ordered one load of gasoline and one load of diesel fuel from Robson. The gasoline was to be delivered c.o.d. the next day to his station at Bridge Street in Yorkville, while the diesel fuel was to be delivered on April 26 to the station on Route 47 and Jericho Road. He was to be present when the diesel fuel was delivered. He denied that the payment was to be made by cashier’s or certified check. He had not been aware that the diesel fuel was delivered on April 16. He admitted that the check was his and that his mechanical check writer had imprinted the word “registered” and the amount and that he had filled in the date of April 26, 1981, but he denied signing the check or filling in the payee’s name. He testified that he had given the postdated check to Bruce Cameron, operator of the station at Route 47 and Jericho Road, as a good-faith token during negotiations between the two in contemplation of forming a partnership. But the partnership was never consummated and defendant denied ever having any control over the diesel fuel or authorizing signing of the check.

Edward Saloga, part owner and landlord of the station at Route 47 and Jericho Road, testified that his property was leased to Bruce Cameron and that he had never seen defendant on the premises. Joseph Lesk, a document examiner, said under oath that it was practically impossible for the signature on the check to be that of defendant.

At the conclusion of the testimony, and during closing argument, the assistant State’s Attorney emphasized that the bank statement showed that the funds in the Bovio Automotive checking account were insufficient to cover the check for the diesel fuel and that defendant was aware of that. The jury took the bank statement, along with the other exhibits, to the jury room for deliberation. The jury found defendant guilty of deceptive practices and theft by deception on March 4,1982, and the judge entered judgment on the verdicts.

On April 2, 1982, the day previously set for post-trial motions and sentencing, defendant’s counsel orally moved for a new trial. The State objected. Defense counsel said that he would need to see a transcript of the proceedings before he could file a written motion for a new trial. The trial judge denied the oral motion but granted defense counsel 30 days to have a transcript prepared, to review it, and to file a written motion nunc pro tunc for a new trial. The judge then proceeded with the sentencing hearing, sentenced defendant to two years’ imprisonment, and vacated the judgment he had previously entered on the guilty verdict for deceptive practices because it arose from the same act as the theft by deception. A written motion for a new trial was subsequently filed on May 25, 1982, and, after a hearing, denied.

Initially, the State contends that defendant’s failure to file a timely written post-trial motion waives review of his claims. A defendant has 30 days following the return of a verdict in a jury trial in which to file a written post-trial motion. (Ill. Rev. Stat. 1981, ch. 38, par. 116 — 1(b)). At the hearing prior to sentencing, the trial judge properly denied defendant’s oral nonspecific motion for a new trial. (People v. Flynn (1956), 8 Ill. 2d 116, 133 N.E.2d 257; People v. Knowles (1979), 76 Ill. App. 3d 1004, 1008, 395 N.E.2d 706.) The judge then proceeded with the sentencing hearing, however, and pronounced sentence while giving defense counsel leave to file a written motion for new trial after the statutory period had expired.

While the better procedure would have been to postpone sentencing until after a written post-trial motion had been filed and ruled upon, the State did not object to the trial court’s approach. Generally, error not raised in a post-trial motion is considered waived. (People v. Davis (1983), 97 Ill. 2d 1, 24, 452 N.E.2d 525.) But a reviewing court may ignore the waiver rule in the interest of substantial justice. (People v. Winston (1982), 106 Ill. App. 3d 673, 688, 435 N.E.2d 1327.) Here, a written motion was eventually filed. Although the 30-day period had run, the delay was approved by the trial court and the State failed to object. Under these circumstances, we refuse to apply the waiver rule and will consider the issues raised on appeal which were also included in the written motion for new trial. See People v. Talach (1983), 114 Ill. App. 3d 813, 818-19, 448 N.E.2d 638; People v. Walsh (1981), 101 Ill. App. 3d 1146, 1149, 428 N.E.2d 937.

Defendant contends that a proper foundation had not been laid for the admission of People’s exhibit No. 5, a computer-generated bank statement of Bovio Automotive for April 1981. In Illinois, computer-generated business records are admissible under the business records exception to the hearsay rule if a proper foundation has been laid. To establish a foundation, it must be shown that the computer equipment is standard, that the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and that the sources of information and the method and time of preparation are such as to indicate trustworthiness and justify admission. Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 202, 367 N.E.2d 1238; see also People v. Gauer (1972), 7 Ill. App. 3d 512, 514, 288 N.E.2d 24.

The State relies on the testimony of Marilyn Long, the assistant cashier of the Bank of Sugar Grove, to establish a proper foundation for the bank statement that was admitted into evidence and given to the jury to take back to the jury room. Her testimony only established that the bank statement was kept by the bank in the regular course of business after being received on microfiche from the data center. She also testified generally to the route a check takes once a customer of the bank drafts it and it is cashed at a different bank.

Nothing in the testimony, however, demonstrated that the computer equipment at the data center was standard and that the method of preparation at the data center indicates trustworthiness. Although Ms. Long testified that other banks used similar systems and computers, such general testimony is insufficient to prove that the particular equipment at the data center used by the Bank of Sugar Grove is standard and accurate. While Ms. Long compared the bank statement to the bank’s microfiche and found the information on both to be identical, there is nothing in her testimony which described how transaction information was entered into and processed through the computer system at the data center which would verify the accuracy of the output on the microfiche. For example, the use of a keyboard in conjunction with a visual display screen is more error-free than a system that utilizes keypunched cards because of reduced human involvement. (People v. Mormon (1981), 97 Ill. App. 3d 556, 567, 422 N.E.2d 1065, citing Roberts, A Practitioner’s Primer on Computer-Generated, Evidence, 41 U. Chi. L. Rev. 254, 266 (1974).) Systems, like the one apparently in question, which perform calculations must be scrutinized more thoroughly than those systems which merely retrieve information. (97 Ill. App. 3d 556, 567, 422 N.E.2d 1065.) No testimony established that the computer program at the data center was standard, unmodified, and operated according to its instructions. On the basis of these gaps in the foundation requirement, we hold that the trial court erred in admitting the bank statement in evidence. See generally North, Computer Evidence in Illinois, 71 Ill. B.J. 590, 592 (1983).

We must next decide whether the error was harmless. The test of whether error is harmless or reversible is whether the reviewing court can say beyond a reasonable doubt that the error at trial did not contribute to the conviction. People v. Buford (1982), 110 Ill. App. 3d 46, 52, 441 N.E.2d 1235.

The bank statement was introduced to support the State’s theory of deception, a necessary element of theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(b)). It was the basis for much of the testimony of Marilyn Long, one of the State’s key witnesses. The prosecutor during closing arguments referred several times to the information contained in the bank statement as showing that defendant, during the entire month of April, did not have enough money to pay the $7,728 check and that his bank balance was misrepresented by defendant as a part of his scheme to obtain the diesel fuel. The jury had possession of it throughout the deliberation. On these facts, there is a strong likelihood that the information on the bank statement contributed to the jury’s verdict. Therefore, we hold that the admission of the bank statement without a proper foundation constituted reversible error, and we remand for a new trial.

Although this ruling effectively disposes of the case, we must also consider defendant’s second argument, that he was not proved guilty beyond a reasonable doubt, or else risk subjecting him to double jeopardy at a new trial upon remand. (People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366.) A judgment of conviction will not be reversed unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the guilt of the defendant remains. (People v. Lewis (1981), 88 Ill. 2d 129, 151, 430 N.E.2d 1346.) Here, a great deal of evidence was presented by the State which, if believed by the jury, would be sufficient to prove guilt beyond a reasonable doubt. The testimony of Robson was directly contradicted only by the testimony of the defendant, and it is within the province of the jury to determine the credibility of witnesses. (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136.) The testimony of the State’s witnesses, from which the jury could infer that defendant knowingly obtained control over the diesel fuel by deception, was not so implausible to justify reversal without remand. The State’s testimony regarding the ordering of the diesel fuel, the peculiar way the check was dated and imprinted, and the poor financial condition of the defendant at the time of the transaction presented sufficient evidence to support a conviction for theft by deception.

For the foregoing reasons, the judgment of conviction is reversed and the cause remanded for a new trial.

Reversed and remanded.

HOPF and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    MARVEL ENGINEERING COMPANY, Plaintiff-Appellee and Cross-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 82—634
    Opinion filed October 14, 1983.

      James T. Ferrini and William J. Schaffle, both of Clausen, Miller, Gorman, Caffrey & Witous, of Chicago, for appellant.
    Jenner & Block, of Chicago (Thomas R. Mulroy, Jr., Michael B. Brohman, and Debra E. Abelson, legal assistant, of counsel), for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Marvel Engineering Company recovered a judgment against the Commercial Union Insurance Company based on a jury verdict in the amount of $176,484.35 for its inventory loss and $1,948,139.44 for its business interruption loss. Commercial Union appeals. Marvel cross-appeals from that portion of the trial court’s judgment which denied prejudgment interest and attorney fees.

Plaintiff Marvel Engineering Company is a Delaware Corporation licensed to do business in Illinois. It manufactures, assembles, and sells hydraulic filter systems which remove unwanted contaminants. In 1974 its main plant was in Skokie. In 1962, Forrest Niccum purchased the company and became president and sole shareholder.

In 1974, Marvel had four affiliated support companies. Mayaguez and Meco, Inc., in Puerto Rico, supplied inventory items exclusively to Marvel. Ring Fabricators, Inc., which conducted some of its operations in Mountainair, New Mexico, manufactured and assembled parts. Marvel Engineering of New Mexico, or “Mescalero,” a wholly owned subsidiary of Marvel, was a machine shop and assembly operation.

On December 11, 1974, Marvel’s Skokie plant was struck by a fire which burned for about 10 hours. The fire completely destroyed the second floor and caused extensive damage to the plant’s machinery. All of the inventory stored on the second floor was destroyed or damaged, and most of the first floor inventory suffered extensive water damage.

At the time of the fire, Marvel was carrying a paid up insurance policy from defendant, Commercial Union, for $4.3 million. The policy covered losses caused by fire, including building loss, inventory loss, machinery and equipment loss, and business interruption loss.

Marvel notified Commercial Union of its loss and on December 16, 1974, Forrest Niccum owner of Marvel met at the Skokie plant with Howard King of the General Adjustment Bureau, the firm hired by Commercial Union to adjust Marvel’s fire loss. The two agreed on a 13-point “program” for Marvel to follow in coping with the fire loss. In. line with King’s suggestion, Marvel’s bookkeepers established a new special “900” account for fire losses.

Marvel and its employees took steps to enable the company to resume normal operations. Employees helped to repair and replace damaged goods and equipment and clean up the premises, transport damaged inventory to an Elk Grove Village warehouse for salvage, make emergency deliveries to customers, and perform bookkeeping work, including working with Commercial Union’s retained accountants reviewing documentation relevant to fire losses.

With the approval of Howard King, Marvel transferred production of paper filter elements to the Mountainair facility and, beginning in 1975, purchased all of its paper filter elements from Mountainair, paying the latter a “processing charge” for production. Marvel also directed certain machine shop operations to Mescalero, with King’s approval. On or about December 31, 1974, Marvel conducted a year-end inventory. The inventory as of the time of the fire was calculated by adding shipment of goods' made and subtracting goods received between the date of the fire and the end of the year.

In 1974, Marvel produced all of its finished products at its Skokie plant. The plant had a full first floor and, at the east end of the building, a partial second floor. In 1974, Marvel experienced problems finding storage space at its Skokie plant. By late 1974, the premises had become so crowded that aisles were narrowed and the plant was virtually full. To alleviate the problem Marvel, in late 1974, started storing much of its inventory at warehouses in Chicago, Bensenville and Franklin Park. There was testimony that the Skokie premises were almost full about a week before the fire in December.

Commercial Union’s accountants, Johnson, Atwater & Co. (JACO), reviewed the Marvel fire loss and the relevant books, records, and documents at the Skokie plant for about one year (summer of 1975 through July of 1976).

On March 9, 1976, Marvel filed its claims with Commercial Union for (1) building, (2) machinery, (3) inventory and (4) business interruption. Marvel submitted sworn statements in proof of loss detailing the inventory and business interruption claims.

Marvel’s building and machinery claims were settled with Commercial Union, which paid $220,901 for the former and $183,904 for the latter.

The proofs of loss gave the inventory claim as $935,065.97 and the business interruption claim as $2,325,768.11, which was later reduced to $2,223,000. The business interruption costs were broken down into $429,487 for labor, $1,544,024.81 for “other costs,” and $352,256.00 for lost profits. Among the “other costs” were $69,594.20 for “trucking charges.”

Commercial Union paid only $582,097.27 of the claimed inventory loss. It contended that Marvel had insured less than 80% of the value of its inventory at the Skokie plant and that the policy allowed Marvel to recover only a percentage of its total loss. Thus, according to Commercial Union, Marvel, which insured the inventory at its Skokie plant for $1 million, undervalued this inventory in calculating the inventory claim. Commercial Union refused to pay any of the claimed business interruption loss.

On November 8, 1976, Marvel filed suit against Commercial Union, demanding $352,968.70 for inventory loss and $2,272,344.75 for the business interruption loss. Commercial Union’s answer alleged, as a defense to the claim, that the entire policy was void because the proofs of loss fraudulently misstated the amount of loss and that Marvel deliberately underestimated the value of its inventory at the Skokie premises on the day of the fire in order to avoid the co-insurance clause which would have resulted in reduction in coverage.

I. The Appeal

The sole issue on appeal is whether the trial court committed reversible error in granting Marvel’s motion in limine, and in denying offers of proof during trial, of a group of exhibits known as the “Humphrey documents” which, according to Commercial Union, falsely documented charges in the amount of $69,861 claimed to be paid for trucking expenses resulting from the fire. The essential question is whether the trial judge in ruling on the foundation for the admission of the Humphrey documents, which appear to be clearly altered, was required to decide questions of fact which were properly for the jury.

Under policy provisions voiding coverage if the insured wilfully conceals any material fact, or in the case of fraud or false swearing, courts will deny recovery to an insured who has made deliberate material misstatements in the sworn proof of loss. (Folk v. National Ben Franklin Insurance Co. (1976), 45 Ill. App. 3d 595, 599.) Even substantial differences, however, between an original proof-of-loss estimate and the eventual jury award will not prevent a jury from properly finding that no fraud or false swearing occurred. Nagel-Taylor Automotive Supplies, Inc. v. Aetna Casualty & Surety Co. (1980), 81 Ill. App. 3d 607, 611.

Commercial Union argues that if it were permitted to go into the Humphrey documents, the jury could have been shown that the claim was not a matter of business judgment but fraudulent, and reflecting on both the trucking claim and the remainder of the claim.

The parties agree that the relevance of the Humphrey documents is “conditional,” dependent on whether the documents were actually submitted in support of the claim. They also agree that Illinois law on the question whether the condition has been fulfilled is the same as under Rule 104(b) of the Federal Rules of Evidence, which provides that “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” Fed. R. Evid. 104(b) (1978). See People v. Munoz (1979), 70 Ill. App. 3d 76; United States v. 478.34 Acres of Land, Tract No. 400 (6th Cir. 1978), 578 F.2d 156; United States v. Beechum (5th Cir. 1978), 582 F.2d 898, 913; McCormick, Evidence sec. 53, at 124-25 (2d ed. 1972).

The issue is thus whether Commercial Union offered sufficient evidence that the Humphrey documents were submitted in support of the claim.

In the trial of the case the jury was given evidence that the $69,869.61 claimed by Marvel for trucking charges was arrived at by using a percentage of three fire related accounts “Freight in,” at 33%, or $13,713.99; “shipping supplies and equipment,” at 66%, or $44,614.53, and “Freight out,” at 33%, or $11,541.09, totaling $69,869.61. In substance, the freight charges were said to represent the total cost for both freight and packaging incurred by Marvel in shipping material after the fire to Mountainair and Mescalero. Supporting original vouchers were submitted with relation to these accounts.

Defendant’s exhibit 318 is a voucher evidencing payment to Humphrey in the amount of $13,000; its exhibit 317 is a voucher to Humphrey reflecting payment by check of $2,700, totaling $15,700. According to the testimony of defendant’s auditor, Geiling, he was given a folder which he said consisted of the two vouchers totaling $15,700 and nine invoices purported to have been for services rendered by Humphrey to Marvel in 1975. One is for $580, each of the other eight are for the identical amounts of $1,890, totaling $15,700, the same as the total of the two vouchers. Six of the eight identical invoices, which are photocopies, are, with the exception of different dates which appear to have been superimposed on the copies, virtually identical in amount, description and script. A fact finder could readily infer that the documents were counterfeits prepared by copying a genuine original and making changes in the copies.

The trial judge’s denial of admission of the Humphrey documents was based on the affidavits and testimony heard outside the presence of the jury. He found that an inadequate showing had been made based on the totality of the evidence that the documents “are relevant to the ultimate presentation of the claim, attached or made a part of the proof of loss that was ultimately submitted to the carrier.” The judge also commented that the documents “almost contain smoke with prejudice that permeates it [sic].” He stated that there were gaps in the proof that they were presented in support of the claim and if the documents were submitted “their prejudice would outweigh any probative value.”

Where the application of a particular rule of evidence depends upon the existence of a condition, here whether the Humphrey documents were submitted in support of the claim against the insurer, the judge must first determine whether the condition actually exists. Thus, to some extent, the judge acts as a trier of fact. (Fed. R. Evid. 104(a), (b), Advisory Committee Notes, at 40.) “The judge makes a preliminary determination whether the foundation evidence is sufficient to find a fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them.” (Advisory Committee Notes, at 42.) Thus, if the jury could not reasonably find the preliminary fact to exist, the judge may withdraw the question from the jury. United States v. Beechum (5th Cir. 1978), 582 F.2d 898, 913.

Supporting documents were not attached to the proof of loss as filed with the insurance company. The JACO auditors were in Marvel’s offices working on the claim and apparently with access to all of Marvel’s records for more than a year prior to the company’s denial of certain aspects of the claim.

At the initial evidentiary hearing, Sharon Thomas Kirby, president of Marvel since March 1977, stated that she never submitted any of the documents in defendant’s exhibits 317, 318 or group 319 to JACO employees in support of the business interruption claim and that no one from JACO ever asked her whether the Humphrey invoices were submitted in support of the claim. She stated that never in examining Marvel’s files did she see the two vouchers attached to the Humphrey documents. Her sworn affidavit reiterated these assertions.

Robert Meyer, Marvel’s counsel, who was directly working on the claim with the auditors, testified that the Humphrey documents were not submitted in support of the claim and that in fact he never saw them or knew them prior to submitting the claim.

Ceiling, a JACO auditor, said that on May 27, 1976, Meyer gave him a folder in which he found the Humphrey copies which file, Meyer represented, contained “partial documentary support” for the trucking charges. The file was a thick one and included other than fire related matters, but according to Ceiling contained the Humphrey copies and the two vouchers totaling $15,700. Ceiling testified that Meyer did not specifically state that the Humphrey copies were in support of the claim, that the entire file was submitted in support of the claim, or that any Marvel representative told him that the copies were in support of the claim. In the long interval of more than a year and a half between the beginning of the audit at the Marvel plant by JACO and the litigation Ceiling said he did not show the Humphrey copies to any Marvel representative to determine whether they were part of the claim. Matson, Ceiling’s supervisor, stated that the file contained a number of invoices which were not offered in support of the claim. Matson also acknowledged that there were prefire vouchers in the file relating to 1974 and early 1975 which he knew were not part of the claim.

Michael Wilson testified for defendant that "as far as he could remember” the Humphrey copies were in the file when it was handed to him by Ceiling. He said, however, that the “900” account (which purported to collect from the ledger the various items making up the trucking claim) was given to him as the general ledger support for the claim; and that the $69,869.51 item was “the total per the general ledger.” In a conversation with Meyer, Wilson said he asked the basis for the figure and concluded “[w]ell he was referring to the support invoices that were provided us.” Matson said he concluded that the Humphrey copies were used in the claim because he saw a calculation on a worksheet prepared by Marvel bookkeeper, Evelyn Alenik, which totaled $39,594.20 and included a $2,700 and a $13,000 figure. Mat-son, however, did not talk with Mrs. Alenik about how she arrived at the calculation or discuss it with her. Mrs. Alenik testifying at trial stated that the $2,700 and $13,000 vouchers were not posted to the fire-related account.

On this record we agree with the trial judge’s conclusion that Commercial Union failed to establish a prima facie case to prove the condition that the Humphrey documents had been furnished by Marvel in support of its claim for trucking expenses. Marvel’s witnesses who worked with JACO on the supplying of records directly testified that they had no knowledge of the existence of the Humphrey invoices and had never seen the Humphrey copies attached to the vouchers submitted in support of the claim. Mr. Meyer testified at length as to how he computed the trucking portion of the claim by using the percentage of the three accounts in the general ledger, explaining that the percentage calculation was used because only a portion of each voucher was for fire-related shipments to New Mexico while the remaining portion was for items that remained at Skokie, so that it was impossible to compute the trucking claim by simply using individual vouchers.

The evidence of a knowing submission of the Humphrey documents is essentially circumstantial. It involves JACO’s auditor Ceiling’s testimony that he found the Humphrey documents in a large folder given to him which admittedly contained non-fire-related documents as well as fire-related documents. Ceiling did not state that any representative of Marvel had ever told him that the Humphrey copies were either in the claim or offered in support of it. Norman Matson, Ceiling’s supervisor, admitted that the file contained invoices and vouchers which were not part of their offer in support of the insurance claim. JACO auditor, Wilson, testified that the general ledger, the “900” account was presented to him as the support for the claim. Matson’s testimony as to a telephone conversation with Meyer and an inquiry as to how the $69,594.20 figure was arrived at was “Yes, well he was referring to the support invoices that were provided us ***. The ‘Humphrey trucking charge’ invoices ***.” It would seem that this would not be directly contradictory of Meyer’s testimony that he at no time referred to the Humphrey trucking charges but would be Matson’s inference from the fact he, Matson, knew that the Humphrey invoices were found in a large file of documents which were handed to him by Geiling. The circumstantial evidence which Commercial Union suggests ties in the Humphrey documents with the claimed false swearing are Matson’s conclusion that the amounts of the invoices were used in the claim because he saw a calculation on the worksheet prepared by Marvel bookkeeper Evelyn Alenik which totaled $39,594.20 and allegedly included a $2,700 and a $13,000 figure. He admitted, however, that he had never talked with Mrs. Alenik about how she arrived at her calculation, never discussed the calculation with Meyer and never determined from Meyer whether the calculation was included in the claim. Mrs. Alenik, called as a witness by Commercial Union, identified each voucher which supported the items in her worksheet calculation and testified that none of the vouchers, including the $2,700 and the $13,000, was posted to the fire-related account.

Counsel for Commercial Union has argued that the Humphrey invoices were put forth originally as separate claims so that the checks used to pay personal expenditures of Forrest Niccum would be drawn into and supported as part of the operation for trucking to Mountainair, and that they amounted to fraudulent evidence because $13,000 and the $2,700 were actually expenditures for Forrest Niccum personally and not fire-related business costs.

The record, however, does not support this argument. There is no evidence offered to show that the items were personal expenditures of Niccum, and Commercial Union’s citation to the record does not support the argument.

The evidence before the trial court on the motion in limine and the various offers of proof warrant the conclusion that among the many thousands of documents which JACO had been given, a set of false documents was included, which, it should be noted, were not disclosed to Marvel nor any connection with the claim discussed with Marvel until more than four years after the proof of loss had been filed and more than six years following the fire. As Commercial Union’s counsel argues, there was no burden on the insurance company to point out to Marvel what documents it might rely upon in defense of the claim. However, the silence concerning the items is difficult to reconcile with the ongoing discussions with Marvel as to all portions of the insurance claim.

In the circumstances the trial judge could properly find that if the jury had been given the facts which were before the judge it could not have reasonably concluded that the Humphrey documents had been offered in support of Marvel’s claim. United States v. Beechum (5th Cir. 1978), 582 F.2d 898, 913.

Commercial Union has argued extensively that the inability to introduce the Humphrey documents (although affecting only $15,700 in trucking charges of $69,869.61 in the context of a business interruption of more than $2 million, allowed by the jury in the amount somewhat less) was the critical factor in the case. Yet, while Commercial Union charges Marvel with extensive fraud throughout in overstating all of the claims of loss, no issue has been presented based on the manifest weight of the evidence. There was a working relationship between the auditors and Marvel. The insurer’s auditors also had access to all of Marvel’s records over a long period of time. The jury was presented with Commercial Union’s theory of fraud and was properly instructed. The claims were reduced but the jury found no fraud. We conclude that the verdict should stand.

II

On cross-appeal, Marvel urges that the trial court should have granted its petition for prejudgment interest on the award pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1981, ch. 17, par. 6402). Section 2 provides that creditors shall be allowed interest at 5% annually for money that becomes due on “any bond, bail, promissory note, or instrument of writing.” The parties agree that the policy here is an “instrument of writing.” (See DiLeo v. United States Fidelity & Guaranty Co. (1969), 109 Ill. App. 2d 28, 44.) Marvel argues that it became entitled to the amount due on or about May 8, 1976, as the policy’s “when loss payable” provision stated that payment was due 60 days after receipt of the proof of loss, March 9,1976.

Commercial Union argues first that the policy did not make the money due by this date because it specified that the amount of loss became payable 60 days after proof of loss was received and ascertainment of the loss was made either by written agreement or the filing of an award by Commercial Union. However, neither party requested an appraisal in this case after Commercial Union rejected Marvel’s proof of loss and refused to pay any of the claim that formed the subject matter of this suit because of alleged irregularities and disputes over the amounts claimed. Commercial Union itself was thus responsible for the delay in determining the amount due, and, though it had a right to contest its liability and the amount of its liability, its conduct amounted to a waiver of the contractual language on which it relies. Travelers Fire Insurance Co. v. Ranney-Davis Mercantile Co. (10th Cir. 1949), 173 F.2d 844, 852; Craigie v. Firemen’s Insurance Co. (D. Minn. 1961), 191 F. Supp. 710, 715-16.

Nonetheless, the trial court properly denied prejudgment interest. For recovery of such interest, the sum due must be liquidated or subject to easy determination by calculation or computation. (North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, 535; First National Bank Co. v. Insurance Co. of North America (7th Cir. 1979), 606 F.2d 760, 769-70.) The sum recovered by Marvel was not in this category. The extent of a business interruption loss, as several courts have recognized, depends on many factors, and is not a simple matter of calculation. (Royal Crown Plastics & Sales, Inc. v. Motorists Mutual Insurance Co. (1976), 51 Ohio App. 2d 79, 82, 366 N.E.2d 294, 296; Esgro Central,- Inc. v. General Insurance Company of America (1971), 20 Cal. App. 3d 1054, 1063, 98 Cal. Rptr. 153, 159; Travelers Indemnity Co. v. Pollard Friendly Ford Co. (Tex. Civ. App. 1974), 512 S.W.2d 375, 383-84.) The business interruption loss was dependent on econometric analyses, estimates of expenses such as trucking expenses and the cost of transferring some of Marvel’s operations to Ring of Mountainair, and exercise of accountants’ discretion. Marvel revised its business interruption claim and its trucking charge claim, and the jury awarded it substantially less than either its claimed inventory loss or business interruption loss. (See Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 809-10.) The trial court therefore did not err in denying prejudgment interest.

Ill

Marvel argues that it was entitled to prejudgment interest because of Commercial Union’s unreasonable and vexatious delay of payment (Ill. Rev. Stat. 1981, ch. 17, par. 6402) and that it should have been granted attorney fees and costs pursuant to the Interest Act (Ill. Rev. Stat. 1981, ch. 17, par. 6402) and to the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767), because Commercial Union’s conduct was “vexatious and unreasonable.” Marvel urges that the trial court’s denial of fees and costs was an abuse of discretion and points to Commercial Union’s substantial and burdensome requests for documentation of the alleged losses, its demands for production of documents in court, and the delay of over seven years between the fire and the judgment.

In deciding whether the insurer has been guilty of unreasonable and vexatious delay, the trial court should take the totality of the circumstances into account, and its decision will not be disturbed absent an abuse of discretion. Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 124.

Although not all of Marvel’s proof of business and property loss was challenged at trial and much testimony was not challenged, nonetheless there was a genuine dispute as to the amount due Marvel, and whether Marvel was entitled to collect at all. Marvel’s claimed losses were revised at different points and exceeded the jury’s award by a substantial margin. (See Tyber v. Great Central Insurance Co. (6th Cir. 1978), 572 F.2d 562; Illinois Produce International, Inc. v. Reliance Insurance Co. (N.D. Ill. 1975), 388 F. Supp. 29.) The case was complicated and much of the evidence and many of the conclusions of different witnesses were disputed. (See Diamond Shamrock Corp. v. Lumbermens Mutual Casualty Co. (7th Cir. 1972), 466 F.2d 722.) Also, the matter of the Humphrey documents, and the dispute over whether Marvel had properly represented the amount of inventory at its Skokie plant, even, if not ultimately meritorious, do not appear so lacking in substance as not to justify a reasonable belief that the policy could ultimately be held void. (See Crest v. State Farm Mutual Automobile Insurance Co. (1974), 20 Ill. App. 3d 382; Smith v. Metropolitan Life Insurance Co. (N.D. Ill. 1982), 550 F. Supp. 896.) Given these facts we find no abuse of the trial court’s exercise of discretion.

The judgment of the circuit court of Du Page County is affirmed. The cross-appeal is denied.

Affirmed.

NASH and YAN DEUSEN, JJ., concur.


text:
    JULIA BROWN, Plaintiff-Appellant, v. PATRICK D. METZGER, DefendantAppellee.
    Second District
    No. 82—1011
    Opinion filed October 18, 1983.

      Alfred L. O’Connor, of Waukegan, for appellant.
    Michael K. Noonan, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Julia Brown, appeals from the dismissal of her complaint against defendant, Patrick D. Metzger, pursuant to defendant’s motion under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48), recodified as section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619). Plaintiff’s complaint sought recovery for loss of consortium, and for family expenses, including her husband’s medical expenses, for which plaintiff claims she became liable under section 15 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1981, ch. 40, par. 1015), commonly referred to as the Family Expense Statute. Defendant’s motion to dismiss was based on his claim that he had been released from liability on plaintiff’s claim by a release executed pursuant to a settlement agreement entered between plaintiff’s husband, Eldridge, and defendant in a separate suit brought by Eldridge to recover for his personal injuries.

The only issue plaintiff raises on appeal is whether her husband’s settlement bars her cause of action for loss of consortium.

Plaintiff alleged in her complaint that her husband sustained injuries when the car in which he was riding collided with a car driven by defendant. Count I of the complaint alleged negligence and count II alleged wilful and wanton conduct on the part of defendant. Plaintiff claimed that the injuries her husband sustained as a result of defendant’s conduct caused her to be “greatly damaged in the loss of her husband’s society, conjugal fellowship, companionship, cooperation and aid in their conjugal relationship.” Plaintiff further alleged that the injuries caused her husband to incur medical expenses and to lose time from work which made him unable to properly support plaintiff and their children. She alleged that as a result of his injuries her husband had “lost great sums of money which would otherwise have gone to the support of the plaintiff” and their minor children; that plaintiff was liable for these “medical expenses and bills of the family, including support of the children” under the Family Expense Statute (111. Rev. Stat. 1981, ch. 40, par. 1015); and that she suffered injury to her property because of her liability for these medical bills and for child support.

During the pendency of this lawsuit plaintiff’s husband settled his personal injury suit for $47,500 and released his claim against defendant. Also, while this suit was pending, plaintiff and her husband had their marriage dissolved. As a part of the property settlement in the dissolution proceeding the judgment of dissolution required plaintiff to pay her husband 25% of any recovery she may receive from this suit. It also required her husband to pay her 25% of his recovery in his personal injury suit against defendant.

When one spouse (the impaired spouse) is injured by the negligence of another, the other spouse (the deprived spouse) may recover from the tortfeasor for the loss the deprived spouse suffered by virtue of the impaired spouse’s injury. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 430, 170 N.E.2d 881.) This loss, which is generally labeled a loss of consortium, includes “material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity.” 20 Ill. 2d 406, 427, 170 N.E.2d 881; see also Elliott v. Willis (1982), 92 Ill. 2d 530, 535, 442 N.E.2d 163.

A cause of action for loss of consortium is a tort action based on an injury to the personal relationship established by the marriage contract. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505; Hammond v. North American Asbestos Corp. (1982), 105 Ill. App. 3d 1033, 1040, 435 N.E.2d 540.) It is a separate cause of action from the impaired spouse’s claim for his own injury (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 163, 317 N.E.2d 505; Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 477, 365 N.E.2d 1087), but derives from that claim. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505.) Courts have indicated that a cause of action for loss of consortium is grounded in a “transferred negligence” theory whereby a defendant’s duty to act with reasonable care toward the impaired spouse is “transferred” to the deprived spouse. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357, 367 N.E.2d 1250 (dicta); Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 473, 438 N.E.2d 1187.) This transferred negligence means that a defendant’s breach of his duty of care to the impaired spouse supports both the impaired spouse’s negligence suit for his injury and the deprived spouse’s suit for loss of consortium.

Because the loss of consortium action derives from the impaired spouse’s action for his injury, it is dependent upon the establishment of the defendant’s liability for the impaired spouse’s injury. (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 748, 431 N.E.2d 1175; Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 690, 399 N.E.2d 1355.) Thus, where the impaired spouse’s claim fails as a matter of law, the deprived spouse’s claim for loss of consortium must likewise fail. Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 748, 431 N.E.2d 1175; Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 690, 399 N.E.2d 1355.

Plaintiff maintains that her suit was improperly dismissed because she claims that her husband’s settlement of his suit against defendant did not bar her cause of action for loss of consortium. Defendant contends that because plaintiff’s husband’s release prohibited him from maintaining a cause of action against defendant, that plaintiff’s claim was likewise prohibited, since a loss of consortium suit depends on the plaintiff’s husband’s ability to maintain a cause of action against defendant.

No Illinois reviewing court appears to have confronted the question whether a release by the impaired spouse binds the deprived spouse and therefore bars a suit for loss of consortium. Defendant cites several cases in which the loss of consortium action was barred by the termination of the impaired spouse’s claim. These cases are distinguishable, however, because in each of them the impaired spouse’s claim was involuntarily terminated because the impaired spouse was barred from recovery as a matter of law. (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175 (impaired spouse failed to state a cause of action); Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 399 N.E.2d 1355 (impaired spouse’s claim barred by the statute of limitations); Rollins v. General American Transportation Corp. (1964), 46 Ill. App. 2d 266, 197 N.E.2d 68 (impaired spouse contributorily negligent as a matter of law).) In those cases the impaired spouse could not have pursued his claim if he had so desired. Here, plaintiff’s husband’s claim was not involuntarily barred but was compromised and released. He could have pursued his claim if he had wished, but chose instead to settle.

While it is true that a cause of action for loss of consortium derives from the impaired spouse’s claim for his injury (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505), we agree with the court in Rosander v. Copco Steel & Engineering Co. (Ind. 1982), 429 N.E.2d 990, which held that “placing actions in a derivative posture does not give one party the right to waive the rights of another.” (429 N.E.2d 990, 991.) Though derivative, the loss of consortium claim is still a separate cause of action. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 163, 317 N.E.2d 505.) Thus, we hold, as courts in several other States have held, that a release executed only by the impaired spouse does not bind the deprived spouse and, therefore, does not bar the deprived spouse’s cause of action for loss of consortium. (Arnold v. Shawano County Agricultural Society (1983), Ill. Wis. 2d 203, 214-15, 330 N.W.2d 773, 779; Whittlesey v. Miller (Tex. 1978), 572 S.W.2d 665, 669; Rosander v. Copco Steel & Engineering Co. (Ind. 1982), 429 N.E.2d 990, 991; Deese v. Parks (1981), 157 Ga. App. 116, 118-19, 276 S.E.2d 269, 272; see also Prosser, Torts sec. 125, at 893 (4th ed. 1971). Contra, Hopson v. St. Mary’s Hospital (1979), 176 Conn. 485, 494, 408 A.2d 260, 264; Millington v. Southeastern Elevator Co. (1968), 22 N.Y.2d 498, 507-08, 293 N.Y.S.2d 305, 312.) Therefore, the release executed by plaintiff’s husband was not a bar to plaintiff’s claim for loss of consortium and did not provide a proper basis for dismissing plaintiff’s complaint based on this issue.

Defendant also appears to argue that the joinder of defendant as a party in the dissolution of marriage proceeding bars plaintiff’s action for loss of consortium. However, it is clear from the record that defendant was joined in that proceeding in order to prevent plaintiff’s husband from dissipating the proceeds of his personal injury settlement with defendant during the pendency of the dissolution of marriage proceedings. These proceeds have been held to be marital property. (In re Marriage of Gan (1980), 83 Ill. App. 3d 265, 269, 404 N.E.2d 306.) Thus, the joinder of defendant in the dissolution proceeding was merely to protect marital property and has no bearing on plaintiff’s loss of consortium action.

In their appellate briefs the parties have not articulated any additional arguments beyond those advanced as to the loss of consortium claim to support their positions on whether plaintiff’s claim for recovery of expenses for which she became liable under the Family Expense Statute (Ill. Rev. Stat. 1981, ch. 40, par. 1015) is proper. A cause of action is maintainable against a tortfeasor by the deprived spouse for family expenses arising from the injuries to the impaired spouse for which the deprived spouse has become liable under the Family Expense Statute. (See Saunders v. Schultz (1960), 20 Ill. 2d 301, 310, 170 N.E.2d 163; Houghton v. Novak (1973), 9 Ill. App. 3d 699, 701, 292 N.E.2d 905.) Our reversal of the trial court’s order of dismissal therefore encompasses both plaintiff’s loss of consortium claim and her claim for family expenses.

Defendant also argues that allowing plaintiff to maintain this suit will permit a double recovery. However, we believe double recovery can be avoided and that the trial court is in the best position to devise a method to avoid double recovery. See, e.g., Dini v. Naiditch (1960), 20 Ill. 2d 406, 427, 170 N.E.2d 881.

For the foregoing reasons the order of the circuit court of Lake County is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LINDBERG and HOPF, JJ., concur.