author: JUSTICE EARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM FRIESLAND, Defendant-Appellant.
    Fifth District
    No. 5—83—0478
    Opinion filed February 6, 1985.
    Rehearing denied February 27, 1985.
    Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Barbara Adams, State’s Attorney, of Hillsboro (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

The defendant, William Friesland, was convicted in a trial by jury in the circuit court of Montgomery County of the offense of burglary and was sentenced to a term of 10 years’ imprisonment. He challenges the fairness of his trial, presenting two issues for our review.

Friesland’s first contention is that the trial court erred in denying his request for production of reports of recent mental examinations of Paul A. Seago, Jr. Seago pleaded guilty to the burglary for which Friesland was convicted and was the State’s chief witness in its case against the defendant. He testified in detail concerning Friesland’s involvement in the burglary of a supply store and the subsequent disposal of the items stolen. Friesland’s discovery motion asserted that medical reports relating to Seago’s mental health during the preceding three years, and specifically to the time period in which Seago related the burglary events to investigative officers, were necessary to aid the defense in impeaching Seago’s testimony.

It is well established in Illinois that evidence of a witness’ mental condition is admissible to the extent that it relates to the credibility of the witness’ testimony. (People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, aff’d (1984), 104 Ill. 2d 96, 470 N.E.2d 993; People v. Walton (1982), 107 Ill. App. 3d 698, 437 N.E.2d 1273; People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727.) To that end, courts have protected a defendant’s rights under the confrontation clause by requiring that the defense be provided with medical information demonstrated as relevant to the credibility of the challenged witness’ testimony. (See People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031; People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727; see also People v. Di Maso (1981), 100 Ill. App. 3d 338, 426 N.E.2d 972.) We cannot say on the record before us, however, that Friesland’s sixth amendment rights were affected or that prejudicial error occurred.

In support of his contention that the trial court erred in denying the requested discovery, the defendant relies principally on People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, aff’d (1984), 104 Ill. 2d 96, 470 N.E.2d 993. Under the circumstances presented in Dace, the court found that the court’s refusal of the defendant’s request for mental health records of an accomplice-witness denied him a fair trial. The defendant was able to show that the witness had been involuntarily committed and adjudged dangerous to others. Additionally, the record demonstrated that Dace’s conviction was solely dependent on the evidence offered by the accomplice-witness. In the present case, though Seago’s testimony was critical, it was not exclusively determinative of Friesland’s guilt. Sufficient corroborative circumstantial evidence was adduced to prove the defendant’s guilt, including Friesland’s possession of a number of tools fitting the description of items stolen during the burglary, and partial corroboration of Seago’s account of the burglary and subsequent related events from three other witnesses.

Moreover, substantial testimony was adduced which tended to weaken Seago’s credibility, including evidence of Seago’s problems with drugs and alcohol, his depression and suicidal urges, and the startling testimony of two witnesses concerning Seago’s sexual peculiarities. Though this evidence was admitted and emphasized during closing arguments, the jury’s verdict indicates confidence in Seago’s testimony despite his shortcomings and mental history. We recently stated, concerning a defendant’s right of confrontation, that “[t]he issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine whether the witness is worthy of belief [citations], not whether any particular limitation has been placed upon defendant’s ability to cross-examine a witness or whether the jury has knowledge of any specific fact.” People v. Newman (1984), 123 Ill. App. 3d 43, 45, 462 N.E.2d 731, 733, citing People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420, 425-26.

The present case more closely resembles the situation in People v. Walton (1982), 107 Ill. App. 3d 698, 437 N.E.2d 1273, where the court upheld the denial of discovery of a witness’ mental health records because the defendant failed to demonstrate the relevance of the information sought to the witness’ credibility. Friesland’s motion was an overbroad and somewhat blind attempt to discover information about Seago’s medical history, lacking any demonstrable nexus to the reliability of his anticipated testimony. Even now, when the point is being pursued vigorously, we discern nothing which persuades us that the records sought would have proved pertinent or helpful to the defense. In the absence of such a showing and because the jury was afforded ample opportunity to assess Seago’s believability, we hold that defendant’s right to a fair trial was not impaired by the denial of his discovery motion.

Appellant’s second challenge concerns various references to his past imprisonment and the presence of uniformed guards at his trial which he claims compromised his right to the presumption of innocence and thereby deprived him of a fair trial. The remarks of witnesses who alluded to defendant’s prison term were neither elicited nor emphasized by the State. While references to prior incarcerations are suggestive of previous criminal convictions, which is generally inadmissible evidence, the record as a whole demonstrates that any error in the objectionable testimony’s admission was harmless. United States v. Hasting (1983), 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974.

Similarly, we perceive no prejudicial error in the presence of uniformed guards. This is a common courtroom practice, and although it is probably preferable that the guards be clothed in civilian dress, an overall view of the record lacks a showing of substantial damage to the defendant’s rights. Any damage wrought by the effect on the jury of the uniformed guards was mitigated by the precautionary instruction regarding the presumption of innocence. See People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513; People v. Johnson (1977), 54 Ill. App. 3d 970, 370 N.E.2d 611.

The defendant has failed to demonstrate reversible error, and, therefore, the conviction is affirmed.

Affirmed.

KASSERMAN and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    JAMES D. GOULD et al., Plaintiffs-Appellees, v. CAMPBELL’S AMBULANCE SERVICE, INC., Defendant-Appellant.
    Fifth District
    No. 5-83-0627
    Opinion filed December 5, 1984.

      Steven P. Sanders and Ann M. Effinger, both of Shepherd, Sandberg & Phoenix, P.C., of St. Louis, Missouri, and Michael R. Jones, of Branson, Jones & Branson, of Centraba, for appellant.
    Henry D. Sintzenich, of Lakin & Herndon, PC., of East Alton, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiffs, James D. Gould, Vincent Dellamano and Peter Gillespie, brought an action against defendant, Campbell’s Ambulance Service, Inc., seeking damages for retaliatory discharge. A jury awarded each plaintiff compensatory damages and defendant appeals. There are two issues presented for our review: (1) whether plaintiffs’ discharge contravened a public policy; and (2) whether the evidence presented established that plaintiffs were unjustly discharged by defendant in retaliation for plaintiffs’ complaints concerning the qualifications of a co-worker, Donald Dugan.

We first note that defendant has included in its brief a number of evidentiary issues which were not raised in its post-trial motion. In an order entered March 30, 1984, we allowed plaintiffs’ motion to strike those portions of defendant’s brief which related to the evidentiary issues raised by defendant on appeal but not in its post-trial motion. We abide by our previous order. Supreme Court Rule 366(b)(2)(iii) (87 Ill. 2d R. 366(b)(2)(iii)) provides that a party who appeals from the denial of his post-trial motion in a jury case may not urge as error any point, ground, or relief not specified in the motion.

The record establishes that plaintiffs were all employed by defendant as emergency medical technicians in Alton. Plaintiffs were at-will employees and had no employment contract with defendant. Plaintiffs were terminated from their employment on March 19,1980.

Plaintiffs’ complaint alleged that they were terminated from their employment because' they had expressed concern that Donald Dugan did not have the type of emergency medical technician certification required by a city of Alton ordinance and that defendant was operating in violation of the ordinance. The city of Alton ordinance upon which plaintiffs relied stated, in pertinent part, as follows:

“Every ambulance attendant driver must be qualified as provided hereafter, except that an ambulance service may provide such ambulance with one unqualified driver or attendant during a period not to exceed ninety (90) days, during which period such unqualified person is actively engaged in acquiring the necessary qualifications provided in subsection 4 below. A qualified ambulance attendant and driver shall
4. Be certified as an emergency medical technician by the state of Illinois or licensed physician, nurse, physician’s assistant, or other licensed medical professional person.” Alton, Il., Ordinances ch. 23, sec. 4—23—8(c)(4) (1979).

Defendant filed a motion for summary judgment, alleging, inter alia, that plaintiffs failed to allege “any clear and compelling mandated public policy against the discharge of Plaintiffs by Defendant.” The trial court denied defendant’s motion for summary judgment and the cause proceeded to trial.

James Gould testified that, prior to his discharge, he discussed with defendant’s co-managers, Maurice Hand, Jr., and James Eugene Fowler, the fact that Mr. Dugan was not certified as an emergency medical technician by the State of Illinois. Mr. Gould stated that he also complained about Mr. Dugan’s work habits but was told by defendant’s co-managers that he would either have to work with Mr. Dugan or leave defendant’s employment. Mr. Gould testified that he believed he was fired because he “was threatening to go to the City Council with Mr. Dugan’s working on the ambulance and not being certified by the State of Illinois.” Mr. Gould, however, could not specifically recall whether he informed defendant’s management that he planned to complain to the city council of Alton. Mr. Gould stated that he did in fact complain to the mayor of the city of Alton and an aider-man but that no action by the city was taken. Mr. Gould testified that he was later informed by Mr. Hand that he was terminated because he was a troublemaker and did not get along with Mr. Dugan.

Peter Gillespie testified that he asked Mr. Hand and Mr. Fowler not to schedule him to work with Mr. Dugan because he felt that Mr. Dugan’s competency was questionable. Mr. Gillespie said he was told by Mr. Fowler to either work with Mr. Dugan or leave defendant’s employment. Mr. Gillespie said that on the night he and the other plaintiffs were terminated, he told Mr. Fowler that defendant was “going to have to get” Mr. Dugan certified by the State because it might make defendant look bad. Mr. Gillespie testified that he assumed he was terminated from his employment for “stirring trouble with Mr. Dugan’s certification.”-

Vincent Dellamano testified that he did not complain to management about Mr. Dugan. Mr. Dellamano stated that he was told that he was fired for causing a disturbance but that he believed that he was terminated due to his friendship with those who voiced complaints about Mr. Dugan.

Roger Campbell, president of defendant, testified that it was his policy to require that ambulance attendants be certified either by the National Registry of Emergency Medical Technicians or by the State of Illinois. Mr. Campbell stated that he believed that either national or State certification satisfied the Alton ordinance governing the qualifications of emergency medical technicians. Mr. Campbell testified that plaintiffs never complained to him about Mr. Dugan’s certification.

Donald Dugan testified that he was employed as a captain on the city of Alton fire department and worked part-time as an ambulance attendant. Mr. Dugan stated that at the time he was hired as an ambulance attendant and during the period relevant to this litigation he was certified by the National Registry of the Emergency Medical Technicians but was not certified by the State of Illinois.

Mr. Hand testified that Mr. Gould and Mr. Gillespie frequently complained about working -with Mr. Dugan. Mr. Hand stated that none of the plaintiffs ever complained at monthly staff meetings about Mr. Dugan’s emergency medical technician certification. Mr. Hand testified that two or three months prior to Mr. Gould’s termination, Mr. Gould asked whether Mr. Dugan had a valid emergency medical technician card. Mr. Hand related that he checked Mr. Dugan’s personnel file and subsequently informed Mr. Gould that it contained a copy of a valid emergency medical technician card for Mr. Dugan. According to Mr. Hand, on the night plaintiffs were terminated, he asked each of them what the problem was and they all replied that they would not work with Mr. Dugan. Mr. Hand stated that he asked each plaintiff if he was refusing to work with Mr. Dugan. When each plaintiff responded affirmatively, his employment was terminated.

Mr. Fowler corroborated Mr. Hand’s testimony that plaintiffs did not complain about Mr. Dugan’s emergency medical technician certification at the monthly staff meetings and that plaintiffs were told that they were being fired for refusing to work with Mr. Dugan.

Marvin E. Reed, the Emergency Medical Services Training Coordinator for the Illinois Department of Public Health, testified that in December 1980, after plaintiffs’ discharge, the Illinois legislature enacted the Emergency Medical Services Systems Act (1980 Ill. Laws 3939-50), which required that emergency medical technicians be certified by the Illinois Department of Public Health. Mr. Reed indicated that prior to the Emergency Medical Services Systems Act there was no requirement that an ambulance attendant be certified by the State. Mr. Reed also testified that the examination used by the National Registry of the Emergency Medical Technicians is the same examination used for purposes of State certification of emergency medical technicians but that the national and State training requirements are somewhat different.

Defendant moved for a directed verdict at the close of plaintiffs’ case and renewed its motion at the close of all the evidence. In arguing for a directed verdict, defendant again suggested that the city of Alton ordinance could not reflect a public policy for purposes of stating a cause of action for retaliatory discharge. The trial court denied both of the defendant’s motions for a directed verdict.

On appeal, defendant maintains, as it did in the trial court, that plaintiffs have failed to state or establish a cause of action for retaliatory discharge. The principal thrust of defendant’s contention is that there was no public policy in Illinois with respect to certification of emergency medical technicians at the time of plaintiffs’ dismissal. Defendant urges that there was no clearly mandated public policy which was contravened by the termination of plaintiffs’ employment. We disagree.

What constitutes a clearly mandated public policy which may give rise to a cause of action for retaliatory discharge was discussed by our supreme court in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. In Palmateer the court stated:

“There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. (Smith v. Board of Education (1950), 405 Ill. 143, 147.) Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878-79.

Here plaintiffs claim that they were discharged from their employment for questioning the certification of an ambulance attendant. Defendant responds that an ordinance such as the city of Alton ordinance, which governs the qualifications of ambulance personnel, cannot form the basis of a clearly mandated public policy. An examination of the Palmateer decision leads us to conclude otherwise. We are of the opinion that public policy demands that employees who voice objections concerning the qualifications of an emergency medical technician should be protected from being discharged from their employment as a result of such objection. To hold otherwise would discourage employees from questioning the qualifications of co-workers; and, in the sensitive area of emergency medical care, such a situation would be intolerable. The public has a right to expect that emergency medical technicians are properly certified in accordance with the law, regardless of whether the law governing these individuals is Federal, State or local.

Defendant alternatively argues that even if public policy can arise from a municipal ordinance, the trial court erred in its construction of the city of Alton ordinance. Defendant asserts that the language in the ordinance which allows an ambulance attendant to be an “other licensed medical professional person” permitted Mr. Dugan to operate with a certification by the National Registry of the Emergency Medical Technicians. Essentially, defendant suggests that the Alton ordinance did not require that Mr. Dugan be certified by the State of Illinois. Assuming, arguendo, that defendant is correct in this assertion, we fail to perceive how such fact would affect the instant case. The fact remains that plaintiffs alleged that they questioned whether Mr. Dugan was in compliance with the Alton ordinance and that, as a consequence, they were discharged from their employment. Whether Mr. Dugan was, in fact, in compliance with the Alton ordinance does not alter plaintiffs’ claim of retaliatory discharge. Even if plaintiffs were mistaken in their belief that the Alton ordinance required State certification of emergency medical technicians, their discharge from employment because they brought this matter to defendant’s attention would still contravene public policy.

Defendant also contends that plaintiffs’ evidence was insufficient to support the verdict. We do not agree. It is the jury’s function to evaluate the weight of the evidence and to assess the credibility of the witnesses; and a reviewing court will not disturb a jury’s findings unless the verdict is palpably erroneous, an opposite verdict is clearly compelled, or the findings are unreasonable, arbitrary and not based upon the evidence. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 728, 457 N.E.2d 85, 97.) In the case at bar plaintiffs testified that they were discharged because they had questioned the qualifications of Mr. Dugan. Defendant’s co-managers, Mr. Hand and Mr. Fowler, on the other hand, testified that plaintiffs were discharged solely because they refused to work with Mr. Dugan. The conflicting testimony presented a question for the jury to decide, and we will not second-guess its determination.

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

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE WELCH

text:
    JACK A. YATES, Plaintiff-Appellee, v. DONALD S. MUIR, Defendant-Appellant.
    Fifth District
    No. 5—84—0258
    Opinion filed February 14, 1985.

      Gordon M. Broom and Madelyn J. Lamb, both of Burroughs, Simpson, Wilson, Hepler, Broom & McCarthy, of Edwardsville, for appellant.
    Mateyka, Hill & Hill, of Edwardsville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Donald Muir, brings this interlocutory appeal from an order of the trial court denying his motion to quash service and process and dismiss for lack of personal jurisdiction. We granted leave to appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). The two issues the trial court has identified for review are as follows:

“1. Whether or not an attorney licensed to practice in Kentucky who files or fails to file an appearance in the administrative hearing of a Federal Civil Service question in Chicago for an Illinois resident is doing business within the State of Illinois to subject said attorney to the jurisdiction of the Courts of Illinois.
2. Whether or not an attorney licensed to practice in Kentucky but representing an Illinois resident who fails to file a notice of appeal with a federal agency in an administrative hearing, pursuant to Civil Service Act, commits a tortious act within the State of Illinois.”

We affirm. The facts are as follows:

Plaintiff, Jack Yates, a resident of the State of Illinois, filed a two-count complaint against Mr. Muir, alleging that defendant failed to adequately represent him in asserting a claim for disability retirement under the Federal Civil Service laws and regulations. The complaint alleged that defendant failed to file a timely appeal from an adverse decision of the Medical Director, Office of Personnel Management, Washington, D.C. The complaint further alleged that the appeal was to be filed in Chicago, and, as a result of the alleged malpractice, he was damaged in that he was deprived of valuable disability retirement rights and income he would otherwise have received. Yates alleged that it was the duty of Mr. Muir to file the appeal in Chicago within 20 days of the date of the decision of the Medical Director. Count I of the complaint was premised on negligence. Count II, stated as an alternative cause of action, was premised on breach of contract. The defendant was personally served -with summons in Kentucky.

In the affidavit accompanying defendant’s appearance and motion, Mr. Muir stated that he is a resident of Kentucky and has never resided in Illinois. Mr. Muir also stated that he is not licensed to practice law in Illinois and does not maintain an office in Illinois. In addition, the defendant avers that he transacted no business in Illinois and states that the alleged tortious act occurred outside the State of Illinois.

After a hearing, the trial court denied the motion to quash service and process. Thereafter, on motion of defendant to reconsider its order, the court again denied defendant’s motion to quash summons on the ground that defendant transacted business in the State or committed a tortious act in the State under section 2—209 of the Code of Civil Procedure.

Section 2—209 of the Code of Civil Procedure provides, in pertinent part, the following:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State;
***.” Ill. Rev. Stat. 1981, ch. 110, par. 2-209.

The Illinois Supreme Court has stated that questions of jurisdiction involve a two-step process: (1) Is the nonresident defendant’s conduct within the meaning of section 2—209; and if so, (2) would exercise of jurisdiction over the nonresident defendant be prohibited by the due process clause. (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436-37, 427 N.E.2d 1203, 1206.) In Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673, the court held that the long-arm statute was intended to expand personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the fourteenth amendment to the United States Constitution. The court in Nelson stated that among the foundations of jurisdiction included is the interest that a State has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy. (Nelson v. Miller (1957), 11 Ill. 2d 378, 384, 143 N.E.2d 673, 676.) However, the court in later cases indicated that the long-arm statute will not necessarily be interpreted to reach the outer limits of due process. Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203.

The determination as to what constitutes sufficient minimum contacts depends upon the facts of each case. (See Muffo v. Forsyth (1976), 37 Ill. App. 3d 6, 9, 345 N.E.2d 149, 152.) Here, Mr. Yates is a resident of Illinois and works in Illinois. If Yates is going to suffer any hardship because of the denial of his claim, it will be in Illinois.

The alleged malpractice occurred because Mr. Muir failed to file a timely appeal in Chicago. The Chicago Regional Office is the only office that covers the claims from employment in Illinois. Thus, an appeal for Mr. Yates could not have been filed at any location other than Chicago.

The first question of law certified by the trial court refers erroneously to “doing business” rather than “transacting business.” Both defendant and plaintiff agree that the court’s phraseology in this regard was merely inadvertent. The “doing business” standard is used as a complement to the Illinois long-arm statute to determine the question of jurisdiction over a foreign corporation not licensed in Illinois. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 199, 429 N.E.2d 847, 851.) However, the record indicates the trial court did not apply the “doing business” standard. The order in which the court denied defendant’s motion to reconsider and reaffirmed its denial of defendant’s motion to quash stated that defendant had submitted to the jurisdiction of the court by “transacting business” or committing a tortious act within the meaning of section 2— 209 of the Civil Practice Law. Thus, the reference to “doing business” in the certified question was merely an inadvertent use of the term.

In any event, we need not decide whether defendant’s conduct constituted the transaction of business in the State of Illinois within the meaning of section 2—209(a)(1) of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2—209(a)(1)), because the plaintiff admits that here we are not dealing with a “transaction of business” rationale.

The main issue is whether there was an omission here that is tantamount to tortious conduct.

The cause of action based upon legal malpractice is, in its essence, a tort action for negligence premised upon breach of the attorney’s duties to his client. (Christison v. Jones (1980), 83 Ill. App. 3d 334, 335-36, 405 N.E.2d 8, 9.) The duty arises out of the establishment of the attorney-client relationship by a contract for legal services. (83 Ill. App. 3d 334, 335-37, 405 N.E.2d 8, 10.) The injuries resulting from legal malpractice are not personal injuries but are pecuniary injuries to intangible property interests. 83 Ill. App. 3d 334, 335-37, 405 N.E.2d 8, 10.

In Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 217-18, 231 N.E.2d 1, 3, the court held that the word “tortious” as used in the long-arm statute is not restricted to the technical definitions of a tort but includes any act committed in this State that involves a breach of duty to another and makes the one committing the act liable to respondent in damages. Here, Mr. Yates alleges that because Mr. Muir breached his duty to appeal Mr. Yates’ disability claim in Illinois, he was injured.

Defendant contends that the focus of inquiry into the question of jurisdiction may properly be directed only to the acts of defendant. (Unarco Industries, Inc. v. Frederick Manufacturing Co. (1982), 109 Ill. App. 3d 189, 192, 440 N.E.2d 360, 362.) He emphasizes the fact that defendant was never physically in Illinois and relies on the case of Veeninga v. Alt (1982), 111 Ill. App. 3d 775, 444 N.E.2d 780. However, defendant’s reliance is misplaced, for the facts of Veeninga are quite dissimilar to the facts in the case at hand. Veeninga was a medical malpractice case. In Veeninga the medical examination, treatment, and prescription of a drug all occurred in Indiana, not in Illinois. The only connection the defendant had with Illinois was that the prescription he wrote was fortuitously filled there. In the instant case, contrary to Mr. Muir’s contention, the location of the regional office in Chicago was not fortuitous. Claims from employment in Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin could be made only to the Chicago regional office.

The defendant further argues that pecuniary damage to plaintiff alone is an insufficient basis to confer jurisdiction over defendant. (See Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203; Unarco Industries, Inc. v. Frederick Manufacturing Co. (1982), 109 Ill. App. 3d 189, 440 N.E.2d 360.) However, Mr. Yates is arguing that Illinois has jurisdiction over defendant not only because of the pecuniary loss suffered in Illinois but also because the defendant’s omission to perform a legal duty occurred in Illinois. The omission, when coupled with the pecuniary injury, is sufficient to confer jurisdiction.

Defendant, relying on Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 438-39, 427 N.E.2d 1203, 1207, purports that the last alleged act necessary to hold him liable was not his failure to file the appeal with the Merit Systems Protection Board in Chicago but the failure to appeal the Board’s denial of the waiver of the 20-day limitation period to the United States Court of Appeals for the Federal circuit in Washington, D.C. However, Mr. Yates is not making an argument for jurisdiction based on a “last act” analysis. Here, if not for defendant’s nine-month delay in petitioning the Chicago Regional Board of Merit Systems Protection Board for any relief, an appeal of the Board’s denial of waiver of the 20-day limitation period would not have been necessary.

Next, relying on Wells v. Braxton (1967), 82 Ill. 2d 354, 227 N.E.2d 137, defendant contends that because plaintiff failed to file counteraffidavits to contradict the facts stated in defendant’s motion to quash and his supporting affidavit, the facts stated in the defendant’s affidavit must be taken as true. However, the court in Wells did not look only for counteraffidavits but searched the entire record for any evidence to the contrary, and because of the absence of contrary evidence, jurisdiction was not found. The court in Wells, relying heavily on the trial court’s findings, stated: “We have no records of the proceedings before us and in the absence of such, must assume that the evidence supports the factual findings of the trial court.” Unlike Wells, in the case at hand the trial court ruled that it had jurisdiction over Mr. Muir. The trial court heard oral arguments concerning jurisdiction twice, once during the hearing on the defendant’s motion to quash service and again at the hearing on the defendant’s motion to reconsider.

Finally, the defendant alleges that the assertion of jurisdiction over the defendant would violate the due process clause of the fourteenth amendment. In order for a State court to exert jurisdiction over a nonresident defendant consistent with the Constitution, there must exist sufficient minimum contacts between the defendant and the forum State such that maintenance of the suit does not offend traditional notions of fair and substantial justice. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; Milliken v. Meyer (1940), 311 U.S. 457, 463, 85 L. Ed. 278, 283, 61 S. Ct. 339, 343.) In Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1239, the United States Supreme Court stated: “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Here defendant’s failure to file a timely appeal in Illinois is sufficient contact to confer jurisdiction.

The concept of “minimum contacts” serves two functions: (1) to protect the defendant from the burden of litigating in a distant or inconvenient forum and (2) to restrain the exercise of the power of the States. (Ballard v. Rawlins (1981), 101 Ill. App. 3d 601, 605, 428 N.E.2d 532, 535-36.) It is well settled that the determination as to what constitutes such minimum contacts cannot be made by a rule of thumb but rather by what is fair and reasonable in the particular situation. (Muffo v. Forsyth (1976), 37 Ill. App. 3d 6, 345 N.E.2d 149.) We think it is not unreasonable to expect Mr. Muir to litigate in Illinois in light of the fact that Illinois is the only forum in which he could have filed an appeal for Mr. Yates. Illinois is where Mr. Yates lives and works. Illinois is where the pecuniary damage will be suffered.

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

Affirmed.

KASSERMAN and HARRISON, JJ., concur.


text:
    BYRON W. YORK et al., Plaintiffs-Appellees, v. THE FIRST PRESBYTERIAN CHURCH OF ANNA et al., Defendants-Appellants.
    Fifth District
    No. 5-83-0716
    Opinion filed November 9, 1984.
    Rehearing denied December 12, 1984.

      R. Corydon Finch, of Anna, for appellants.
    John M. Ferguson, of Belleville, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

This appeal concerns a dispute between a small local church corporation, the First Presbyterian Church of Anna, and its predecessor, the First United Presbyterian Church of Anna (Anna Church), and its denominational organization, the United Presbyterian Church in the United States of America (UPCUSA). Anna Church appealed from an order of the circuit court of Union County granting injunctive and declaratory relief in favor of UPCUSA and its governing bodies. The central controversy involves the ownership and control of the property of Anna Church.

Defendant-appellant Anna Church was formerly a member of UPCUSA, an unincorporated religious association of Presbyterian churches, having a hierarchical structure of church government. UPCUSA’s constitution provides that the local church is governed by a judicatory known as the Session, comprised of members of the local church, having immediate authority to direct and manage the affairs of the local church. The actions of the Session are, in many instances, subject to review and control by higher UPCUSA judicatories, called, in ascending order, the Presbytery, the Synod, and the General Assembly. UPCUSA’s form of government is outlined in that part of the church constitution called the Book of Order, which delineates the duties, obligations, and authority of each judicatory.

In July 1980, UPCUSA’s General Assembly presented Overture A, which consisted of a proposed amendment to UPCUSA’s constitution in order to create an express trust, to the benefit of the denominational church organization, of all property held by the local churches and the judicatories of UPCUSA. Although a similar proposal failed in 1929, Overture A was approved and the amendment was added in May 1981. On October 27, 1980, Anna Church held a meeting of its members, called for the purpose of amending its articles of incorporation. By a vote of 98-28, the congregation amended the articles with certain provisions which in essence amounted to an absolute withdrawal from UPCUSA. Immediately afterwards, the defendants organized the Anna Presbyterian Foundation. By a margin of 100 to 15, the members voted to convey the real property of the local church to this entity, and the transfer was effected by warranty deed on October 28, 1980. Although the reasons for these actions were never fully clarified, the record indicates that substantial concern existed in the local congregation over the ramifications of the proposed Overture A.

On November 13, 1980, at its stated meeting, plaintiff-appellee Presbytery appointed an administrative commission to investigate the actions of Anna Church. The investigation primarily consisted of a meeting attended by the commission and several members of the Anna Church’s former Session. On the Commission’s finding of disunity and “utter disregard” by the Session of UPCUSA’s Book of Order, Presbytery appointed a second commission (plaintiff Anna Administrative Commission II) to replace the Anna Church Session, which was formally removed by the same order of Presbytery on November 20, 1980. Both the removal and the appointment were authorized by UPCUSA’s constitutional directives, although Anna Church argued at trial and asserts on appeal that Presbytery’s order was somehow effected without procedural due process.

When Anna Church continued to exercise control over the local church property, UPCUSA, Presbytery, and Anna Administrative Commission II sought a declaratory judgment. After a nonjury trial, the court ordered the defendants to convey all the church property to the Administrative Commission, and enjoined the defendants from interfering with the Commission’s authority and control. The court declared that Anna Church remained a constituent member of the denomination, subject to its orders and decisions, that the local church’s withdrawal was invalid, and that UPCUSA’s General Assembly had determined that all church property was held in trust for UPCUSA. Based on judicial deference to the General Assembly’s determination, the trial court declared that defendants were no longer entitled to the use of any church property.

Constitutional restraints upon the adjudication of church controversies have not eliminated the recurrence of bitter property disputes such as the one brought in this appeal. (Note, Judicial Intervention in Disputes Over the Use of Church Property, 75 Harv. L. Rev. 1142 (1962); Annot., 52 A.L.R.3d 324 (1973).) Unfortunately, the authoritative case law offers no specific mandate for deciding the issues presented. Rather, the approaches sanctioned by the Supreme Court of the United States are advanced by the parties as contrasting principles for our analysis. A review of the constitutionally acceptable methods is therefore helpful to our disposition of the case at bar.

Traditionally, church litigation involving the application of ecclesiastical decisions have been decided in accordance with the principles articulated in Watson v. Jones (1872), 80 U.S. (13 Wall.) 679, 20 L. Ed. 666. In Watson, two rival factions of a local Presbyterian church became involved in litigation over control of the church premises. The General Assembly of the larger denominational church decided in favor of the majority faction, but the minority group took control of the property. Both the deed and the charter provided that the property and the trustees of the local church were subject to the fundamental laws of the general church. In Watson, the court held for the majority under an absolute principle of judicial deference to internal ecclesiastical decisions. The deference rule was to be applied in those cases where the religious entity holding the property is a subordinate member of a general church organization having a hierarchical structure. Specifically enunciated, compulsory deference was mandated “whenever the questions of discipline, or faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried ***.” 80 U.S. 679, 727, 20 L. Ed. 666, 676.

The language used by the high court in Watson has been quoted for decades in cases involving church disputes. Although a controversy within an hierarchical system of church government can be identified by the Watson definitional formula and therefore presented as a case requiring compulsory deference, the rule itself is not so precisely applied. The Watson language omits reference to decisions rendered by an internal church judicatory concerning matters entirely civil in nature. Thus, where the litigation involves only the issue of property control, the Watson standard fails as a constitutional imperative.

An alternative to the strict deference of Watson was identified in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), 393 U.S. 440, 21 L. Ed. 2d 658, 89 S. Ct. 601. The Hull case involved the withdrawal of two local churches from the general hierarchical organization, and subsequent discord over the control of the church property. The court stated that civil courts are proper fora for settling religious property disputes, and rejected any application of Watson which would preempt civil review of church decisions affecting property rights. The Hull principle left civil courts free to adjudicate property disputes if the decisional process averted underlying doctrinal conflicts. As the Hull case recognized the efficacy of a “neutral principles of law” analysis, this method was unequivocally endorsed in Jones v. Wolf (1979), 443 U.S. 595, 61 L. Ed. 2d 775, 99 S. Ct. 3020, allowing State courts to adopt a “neutral principles of law” analysis in resolving property disputes if they chose to do so, rather than apply the principle of judicial deference heretofore thought to be required by Watson.

Despite appellants’ contrary assertion, UPCUSA maintains a hierarchical structure of government and, at least until the events of October 1980, the Anna Church’s subordinate posture in the general church organization left it subject to the decisions of the controlling judicatories. This circumstance does not, however, preclude a civil court decision respecting the Anna Church property, even under a Watson stricture, provided that the decision is reached without intrusion into UPCUSA’s ecclesiastical domain. In our view the threshold question for our consideration is whether we are constrained under our State decisional law. Appellee maintains that we are committed to compulsory deference and, in support of this contention, cites Lowe v. First Presbyterian Church (1974), 56 Ill. 2d 404, 308 N.E.2d 801.

In Lowe, the Presbytery of the general church formally dissolved the local church in accordance with its church constitutional authority, and ordered the local church to convey its property to the Church Extension Board of the Presbytery. The local congregation refused, claiming that the board had previously quitclaimed the property to the local church and that Presbytery lacked authority to dissolve their local church or to order the reconveyance. The court held that a simple examination of the deed to the property was not sufficient to resolve the controversy and stated that a detailed inquiry into the polity of the general church was necessitated by the issues presented. Finding that the denominational church was hierarchical in form, and that the local church was its subordinate member, the court deferred to the internal church decision because “[i]n these circumstances, the civil courts cannot, in the process of resolving property disputes between the local and the general church, independently determine questions properly within the sphere of ecclesiastical bodies.” Lowe v. First Presbyterian Church (1974), 56 Ill. 2d 404, 415, 308 N.E.2d 801, 807.

We find that the Lowe decision does not prevent our disposition of this appeal by a neutral principles analysis. We note preliminarily that the significant Jones case was decided several years after Lowe. The unambiguous approval in Jones of a neutralized analysis of church property disputes, together with the high court’s thoughtful articulation of the advantages and necessary cautions which inhere in the neutral principles method, support our belief that our own supreme court may be inclined to endorse the adoption of the neutral approach in reviewing property disputes such as the present one.

The factual disparity between Lowe and the instant case serves as an additional basis for our rejection of Lowe as dispositive of the issues presented here. In Lowe, the authority of the parent church to dissolve the subordinate congregation and to direct a conveyance of its assets was explicitly authorized in the church constitution and implemented accordingly. In contrast, no dissolution of the Anna Church was attempted, for reasons unapparent in the record, although the identical constitutional option existed. Unlike Lowe, the internal decision to which the trial court yielded in the instant case is not supported by demonstrable concepts of ecclesiastical law which grant a clear right to denominational appropriation of local church assets. Therefore, even if the removal of the Anna Church Session is judicially endorsed, the property issue is left unresolved.

Moreover, we do not read Lowe as a blanket adoption of the compulsory deference rule, foreclosing review by neutral principles in all cases presenting internal religious controversies. The thrust of appellees’ arguments appears to be an assertion that the mere categorization of the local-general church relationship as hierarchical is determinative of the question of property control. To extract such a meaning from Lowe and other pre-Jones cases is to discount the judicial role in resolution of civil property rights which has been emphatically recognized and painstakingly qualified in the principles which have evolved since Watson and which have culminated in the Jones endorsement of a neutral approach.

Our careful examination of Lowe produces a belief in its conformance to both the deference of Watson and the neutrality of Jones. Where appropriate, a church decision requires judicial acquiescence. But when the property question is distinguishable from church doctrine, the issue can, and must, be decided without impermissible intrusion into ecclesiastical jurisdiction.

In the instant case, no question of religious doctrine or practice was ever addressed or decided by the Presbytery. The only matter considered and ruled upon by the higher judicatory was the removal and replacement of the Anna Church Session, an entity which had arguably ceased to exist. Presbytery’s decision included no mention of severance by the former Session or of legal ownership of the church property. Endorsement of the removal action is mandated by first amendment considerations, but it fails to resolve the real issue presented in this appeal. We believe that the neutral principles approach is the appropriate method for determining the central question of property control.

Our preference for a neutralized analysis is not limited to our belief in its adaptability to the facts presented in the case at bar. We are additionally persuaded by the more widespread benefits of its utilization. In First Presbyterian Church v. United Presbyterian Church (1984), 62 N.Y.2d 110, 464 N.E.2d 454, the court of appeals of New York adopted a neutral principles approach on facts virtually identical to those presented for our review, and remarked on the method’s advantages:

“It is completely secular in operation, it is flexible enough to accommodate all forms of religious organizations and it relies upon well-established principles of law familiar to Judges and lawyers. It also provides predictability so that religious organizations may order their affairs to account for its application. Moreover, we agree with those who have observed that the doctrine is preferable to deference because it does not prefer one group of disputants to another. The deference approach assumes that the local church has relinquished control to the hierarchical body in all cases, thereby frustrating the actual intent of the local church in some cases. Such a practice, it is said, discourages local churches from associating with a hierarchical church for purposes of religious worship out of fear of losing their property and the indirect result of discouraging such an association may constitute a violation of the free exercise clause.” (62 N.Y.2d 110, 121, 464 N.E.2d 454, 460.)

The policies advanced by the New York court apply especially to the instant facts. UPCUSA’s Overture A was concededly proposed to conform to the Jones ruling, and Anna Church’s reaction to the proposal leaves no doubt that the relationship between the parties lacked an explicit mutual understanding of property rights within the religious structure or otherwise. The judicial task, then, is to settle the property rights most carefully, avoiding invasion into the ecclesiastical purview.

In applying neutral principles, courts will generally examine the language of the deeds, the terms of the local corporate charter, the State statutes applicable to church property, and the relevant provisions of the church constitution and laws. (Jones v. Wolf (1979), 443 U.S. 595, 603, 61 L. Ed. 2d 775, 784-85, 99 S. Ct. 3020, 3025, citing Maryland and Virginia Elderships v. Church of God (1970), 396 U.S. 367, 368, 24 L. Ed. 2d 582, 584, 90 S. Ct. 494, 500.) An examination of the evidence as to the first three items for consideration yields nothing that creates an express or implied trust or other interest vested in the general church. It is clear from the record that title to the local church property was conveyed to the Anna Presbyterian Foundation, an Illinois not-for-profit corporation, on October 28, 1980, prior to the removal decision and long before the adoption of Overture A in May 1981. This analysis is referred to as the “formal title” doctrine and was the method employed by the Georgia Supreme Court in ruling in favor of the local church upon remandment of Hull. (On remand sub nom. Presbyterian Church in United States v. Eastern Heights Presbyterian Church (1969), 225 Ga. 259, 167 S.E.2d 658, cert. denied (1970), 396 U.S. 1041, 24 L. Ed. 2d 685, 90 S. Ct. 680.) The last item of analysis requires cautious inquiry. The provisions in chapter XI of part II of UPCUSA’s constitution, utilized by the UPCUSA Presbytery to remove the Anna Church Session, is not helpful to appellees’ cause because the provisions do not confer title or right of control to the local property, nor can a purely secular interpretation support any contention that those provisions operate to create some type of property interest in the general church. The constitutional provisions which directly relate to the issue of property are found in chapter XXXIII of the Book of Order, which authorizes a take-over of local church property upon dissolution or extinction, neither of which occurred in the Anna Church. Because nothing which can be legitimized by neutral legal principles is discoverable from the record to support appellees’ right to the local church property, we reverse those portions of the trial court’s order which affect the property interest of Anna Church.

We also reverse the trial court’s declaration of the nullity of Anna Church’s actions of withdrawal and severance, holding that to make such a ruling impermissibly intrudes into church polity. Despite appellees’ concession that the local church had the right to withdraw from the denomination, the trial court nullified the withdrawal, apparently accepting the general church’s assertion that the local congregation could not maintain control over church property upon severance from UPCUSA. Also reflected in the judgment is the trial court’s acquiescence in the General Assembly’s interpretation of UPCUSA’s constitution, which established a superior interest in the local church property for the benefit of the denomination. These contentions by appellees amounted to self-serving arguments rather than supportable allegations of fact and should not have been included in the trial court’s judgment. The constitutional restraints which control religious property disputes, whether applied through Watson deference or a neutral analysis, require that the only action of the trial court which can be affirmed is the judicial conformance to Presbytery’s decision of removal and replacement of the Anna Church Session. On the other hand, because “the State has a legitimate interest in resolving property disputes” (Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), 393 U.S. 440, 445, 21 L. Ed. 2d 658, 663, 89 S. Ct. 601, 604), our neutral disposition of the property question is not only an appropriate resolution but a judicial obligation. Our task has been made easier by the limited scope of the decision of the church judicatory, confining the ultimate result of the instant litigation to a judicial acknowledgement of the removal and replacement of the Anna Church Session. We affirm that aspect of the judgment order and reverse those portions which purport to do anything more.

Affirmed in part; reversed in part.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE HARRISON

text:
    MARY KAYE DEASON, Indiv. and as Adm’x of the Estate of David A. Deason, Deceased, Plaintiff-Appellee, v. METROPOLITAN PROPERTY & LIABILITY INSURANCE COMPANY, Defendant-Appellant (Florence Petro, Adm’r of the Estate of George Petro, Deceased, et al., Counterplaintiffs-Appellees; Auto-Owners Insurance Company et al., Defendants).
    Fifth District
    No. 5—84—0073
    Opinion filed January 10, 1985.
    Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellant.
    C. E. Heiligenstein and Brad L. Badgley, both of Belleville, for appellee Mary Kaye Deason.
    H. Carl Runge, Jr., of Runge & Gumbel, P.C., of Collinsville, for appellees Beth Martell and Patsie Gott.
    Michael P. Casey, of Edward R. Vrdolyak, Ltd., of Chicago, for other appellees.
   JUSTICE HARRISON

delivered the opinion of the court;

Metropolitan Property & Liability Insurance Company (hereinafter referred to as Metropolitan) appeals from a judgment of the circuit court of St. Clair County declaring that a policy of insurance issued by Metropolitan afforded secondary coverage in connection with a November 30, 1980, accident involving a 1975 Mercury Comet driven by Christopher Warner. The primary issue for our consideration is whether the trial court properly concluded that, under the terms of the policy issued by Metropolitan to Christopher Warner’s parents, the Comet operated by Christopher Warner was a “temporary substitute automobile.” Because this case involves the question of whether or not coverage exists under the terms of Metropolitan’s policy, it is a proper subject for a declaratory judgment action. Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 102-03, 415 N.E.2d 512.

The policy in question provides coverage to the insured for accidents arising out of the ownership, maintenance or use of an owned or nonowned automobile. The terms “non-owned automobile” and “owned automobile” are defined in the policy as follows:

‘[N]on-owned automobile’ means an automobile which is neither owned by nor furnished nor available for the regular use of either the named insured or any relative, other than a temporary substitute automobile, and includes a utility trailer while used with any such automobile:
‘[OJwned automobile’ means
(a) a private passenger automobile or utility automobile owned by the named insured and described in the Declarations to which the Automobile Liability Coverage of the policy applies and for which a specific premium for such insurance is charged, or
(b) a private passenger automobile or utility automobile ownership of which is newly acquired by the named insured, provided (i) it replaces an owned automobile as defined in (a) above, or (ii) METROPOLITAN insures all automobiles owned by the named insured on the date of such acquisition and the named insured notifies METROPOLITAN within thirty (30) days of such acquisition of his election to make this and no other policy issued by METROPOLITAN applicable to such automobile and pays any additional premium required therefor, or
(c) a temporary substitute automobile

The policy defines “temporary substitute automobile” in this manner:

‘[TJemporary substitute automobile’ means an automobile not owned by the named insured or any resident of the same household, while temporarily used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair or because of breakdown, loss or destruction.”

The facts relevant to a determination of whether the 1975 Comet was a temporary substitute automobile are not in significant dispute. Christopher Warner spent the summer of 1980 in Ohio with his grandmother, Vera Fry. Ms. Fry, an Ohio resident, owned the 1975 Comet, which was insured by a company other than Metropolitan. During that summer, arrangements were made whereby Christopher would take the Comet with him when he returned to his parents’ Cobden home at the end of the summer. It was further agreed that Christopher would return to Ohio at Christmas time and pay Vera Fry $100, after which she would have the title to the Comet transferred to Christopher and one of his parents. Christopher did in fact bring the Comet back to Cobden in August 1980, and he and his parents used it regularly. On November 30, 1980, before Christopher had paid any money to Vera Fry, and before title to the Comet had been transferred, the accident in question occurred.

On the date of the accident, Andrew Warner, Christopher’s father, owned a 1973 Mercury and a 1974 Dodge pickup truck. Both of these vehicles were insured by Metropolitan. Neither was operable at the time of the accident; the Mercury had a defective transmission and the Dodge had a twisted drive shaft. Both vehicles were put back into operation shortly after the accident involving the Comet. During his deposition, Andrew Warner testified as follows:

“Q. Did you have any intention if the Comet hadn’t been wrecked, did you have any intention to dispose of either of these other two cars just because you got the Comet?
A. Oh, no.”

In ruling that Metropolitan’s policy afforded secondary coverage in connection with the accident involving the 1975 Comet, the court found that Christopher Warner was “a relative operating a temporary substitute” automobile. Metropolitan contends that this conclusion is incorrect, and we are compelled to agree. Under the terms of the policy, a temporary substitute automobile is defined as one “temporarily used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair or because of breakdown, loss, or destruction.” Here, the unequivocal deposition testimony of all concerned establishes that Christopher Warner’s use of the Comet was not to be temporary, but regular and permanent, as it was the intention of both Vera Fry and Christopher Warner that he would pay $100 for the car at Christmas time, and would not return it to her. Moreover, the Comet was not intended by the Warners to be a substitute for either the Mercury or the Dodge; rather, it was to be kept as a third car, and the fact that the Dodge and Mercury broke down during the Warners’ use of the Comet was entirely coincidental. Under these circumstances, the “temporary substitute” provision of the policy issued by Metropolitan did not encompass Christopher Warner’s use of the Comet on the date of the accident. (See Sturgeon v. Automobile Club Inter-Insurance Exchange (1979), 77 Ill. App. 3d 997, 1000, 397 N.E.2d 522.) This conclusion is buttressed by the holding of Nationwide Insurance Co. v. Ervin (1967), 87 Ill. App. 2d 432, 436-37, 231 N.E.2d 112, wherein it was recognized that a “temporary substitute” provision of the type under consideration here is to be applied to those situations where an insured automobile is withdrawn from use for a short period, and not where, as here, coverage is sought to be extended to an additional automobile for a significant length of time.

Prudence Mutual Casualty Co. v. Sturms (1962), 37 Ill. App. 2d 304, 185 N.E.2d 366, relied on by appellees, is not on point. Sturms addresses the question of whether coverage afforded on a temporary substitute automobile expires immediately upon repair of the insured’s regular automobile (37 Ill. App. 2d 304, 306), and does not discuss the more fundamental issue of when a vehicle is considered to be a temporary substitute in the first place. While appellees also suggest that portions of Metropolitan’s claim file show that certain Metropolitan employees believe that the policy in question afforded coverage, the trial court correctly noted in its judgment that these statements are merely opinions, and are not binding on a court in its consideration of the legal question presented. 31A C.J.S. Evidence sec. 272(b) (1964).

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed.

Reversed.

JONES, P.J., and EARNS, J., concur.


text:
    WILLIAM R. HERBERT, Plaintiff-Appellee, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—84—0359
    Opinion filed February 4, 1985.
    John B. Gunn and James C. Cook, both of Walker & Williams, of Belle-ville, for appellant.
    Joseph L. Walsh and Michael S. Williams, both of Haley, Fredrickson & Walsh, of East St. Louis, for appellee.
   JUSTICE EARNS

delivered the opinion of the court;

We granted defendant’s petition for leave to appeal under Supreme Court Rule 306(a)(1)(ii) (87 Ill. 2d R. 306(a)(1)(ii)) from an order of the circuit court of St. Clair County denying its motion to decline jurisdiction under the doctrine of forum non conveniens.

On January 17, 1983, plaintiff brought this action for damages against the defendant railroad because of injuries received while working as a conductor on a train near Nashville, Tennessee, on October 15, 1982, when the caboose in which plaintiff was riding was “suddenly, unusually and violently jolted,” causing plaintiff to be thrown to the floor. The action was predicated on common law negligence and on alleged violations of defendant’s duties under the Federal Employers’ Liability Act, particularly the Safety Appliance Act (45 U.S.C. sec. 1 et seq. (1976)). The defendant railroad does business in St. Clair County, and venue in St. Clair County is proper. 45 U.S.C. sec. 56 (1976).

Plaintiff resides in Columbia, Tennessee, approximately 260 miles distant from St. Clair County; all occurrence witnesses and potential medical witnesses, except one doctor who practices in St. Louis, Missouri, are located in or around Nashville, Tennessee, some 300 miles from Belleville, Illinois. Defendant was a Kentucky corporation at the time of the occurrence but has since merged with Seaboard System Railroad, Inc., a Virginia corporation, having its headquarters at Jacksonville, Florida. The cause has absolutely no connection with St. Clair county other than being the place where plaintiff chose to file his action, and if defendant had timely filed its motion to decline jurisdiction, the motion should have been granted, considering the clear precedent heretofore established by the Illinois Supreme Court. (See, e.g., Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111; Mesa v. Chicago & North Western Transportation Co. (1983), 98 Ill. 2d 356, 456 N.E.2d 1; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417; Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 466 N.E.2d 198.) It is now firmly established that a case should not be tried in a forum that has no significant factual connection to the cause.

However, the defendant did not timely file a motion to decline jurisdiction because St. Clair County was an inconvenient forum. Instead, on January 26, 1983, it filed a motion to dismiss count I of the complaint, which was predicated on res ipsa loquitur, and on the same day filed an answer to counts II and III. On the same day, it propounded 53 interrogatories to plaintiff and requested production of relevant documents, including income tax returns, hospital and doctor bills and medical reports. Answers to interrogatories and documents were filed by plaintiff on July 22, 1983. Supplemental interrogatories and requests for production were subsequently filed by defendant. Plaintiff’s discovery deposition was taken at the office of defendant’s attorneys in Belleville on July 21,1983.

It was not until May 11, 1984, approximately 16 months after the filing of plaintiff’s complaint, that defendant filed its motion to decline jurisdiction on the basis of forum non conveniens. No discovery was conducted by defendant subsequent to the date on which plaintiff’s discovery deposition was taken in July 1983. At the time of filing the motion to decline jurisdiction, plaintiff had not worked since January 1983.

In its order denying defendant’s motion, the trial court noted that the motion was not filed until 16 months after the filing of the complaint and 10 months after defendant’s discovery was completed, long after defendant had time to discover that a factual basis existed to warrant the filing of such a motion and after the court had ruled on a substantive issue in denying defendant’s motion to dismiss count I of plaintiff’s complaint. The trial court observed that it would be unfair to plaintiff after such a delay to require him to refile his lawsuit in another forum, renew discovery already completed and suffer the necessary delay until his case could be reached for trial.

In reviewing the decision of the trial court in denying a motion to decline jurisdiction because the forum chosen by plaintiff is not a convenient one in which to litigate a particular case, the decision of the trial court will not be overturned absent an abuse of discretion. (People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977; Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 466 N.E.2d 198.) From our discussion of the facts of this case, we believe it is apparent that the trial court did not abuse its discretion in denying defendant’s motion to decline jurisdiction.

If a defendant believes that the doctrine of forum non conveniens might be applicable in a given case, the motion to decline jurisdiction should be filed at the earliest practicable opportunity, which would normally suggest the first appearance date. Here, plaintiff’s complaint set out the location of the occurrence of the event giving rise to plaintiff’s cause of action as Kingston Springs, Tennessee. An employer must be charged with knowledge of the home address of its employee. It surely was apparent to defendant when this complaint was filed that the cause had little or no connection with St. Clair County. Yet, it waited 16 months before filing its motion to decline jurisdiction, 10 months after interrogatories were answered and plaintiff’s discovery deposition was taken.

Nothing in the Civil Practice Act or the Code of Civil Procedure requires that a forum non conveniens motion be filed at any particular time. We would observe, by way of analogy, however, that section 2— 104(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—104(b)) provides that objections to improper venue are waived unless a motion to transfer is made “on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer ***.” This time requirement has been strictly construed. (Memorial Medical Center v. Matthews (1984), 128 Ill. App. 3d 820.) In like manner, if a defendant is uncertain that forum non conveniens may be applicable, the trial court has the power to extend the time within which defendant must appear (87 Ill. 2d R. 183) so that the facts might be determined, or the defendant may file a motion to decline jurisdiction and request the trial court to reserve ruling on the motion until sufficient discovery is conducted to determine if the motion is well taken.

Defendant attempts to justify the delay in filing its forum motion because it states that when such motions are filed immediately, “plaintiffs request continuances to engage in discovery.” We do not find this argument persuasive. Nor do we believe that Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792, is authority for defendant’s assertion that a defendant cannot be considered to waive a forum objection no matter when the objection is raised. Lowe involved multiple defendants, some of whom settled with plaintiffs prior to trial. The trial in Lowe commenced before the effective date of the amendment to Supreme Court Rule 306, which made the denial of a forum motion subject to interlocutory appeal (85 Ill. 2d R. 306, amended Feb. 19, 1982, effective Apr. 1, 1982). In Lowe, the railroad initially joined in forum motions filed by other defendants which were denied. The opinion does not discuss the timeliness of these motions in relation to the commencement of the action. The denial was not at that time subject to permissive interlocutory appeal.

Furthermore, we do not consider the question to be one of waiver, but of fundamental fairness. When defendant answers and proceeds to discovery in the forum chosen by plaintiff, he indicates that he is satisfied to litigate the cause in that forum, and the case proceeds upward on the trial calendar. It can hardly be considered convenient to dismiss or transfer a case under these circumstances.

In Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729, the court stated that “[fjorum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration.” (54 Ill. 2d 511, 514, 301 N.E.2d 729, 730.) There, a Michigan resident was killed in a crossing accident in Iowa. Suit was commenced in the United States District Court in Iowa. Interrogatories were filed and answered and depositions taken. After certain adverse rulings were made by the trial court, the plaintiff voluntarily dismissed the case and refiled it in the circuit court of Rock Island County. The trial court denied the railroad’s motion to dismiss on the ground of forum non conveniens, and the case was tried and a verdict returned for the plaintiff. The supreme court held that it was an abuse of discretion for the trial court to deny the motion, considering that the cause had no connection with Hlinois, was ready for trial in Iowa for a year and a half and was dismissed after the trial court made pretrial rulings with which the plaintiff was dissatisfied.

Here, the complaint was on file for 16 months prior to the filing of the forum motion; interrogatories were filed and answered and plaintiff’s discovery deposition taken; no discovery was accomplished for a 10-month period prior to the filing of the motion; and the trial court had ruled adversely to defendant on its motion to dismiss count I of plaintiff’s complaint.

We believe that “considerations of fundamental fairness and sensible and effective judicial administration” fully warrant the denial of the motion to decline jurisdiction under these circumstances. It would be fundamentally unfair to require the plaintiff to refile the lawsuit in a Tennessee forum under these circumstances. We cannot say that the trial court committed an abuse of discretion in denying defendant’s motion.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

HARRISON and KASSERMAN, JJ., concur.


text:
    MELISSA A. GALLIHER, Plaintiff-Appellee, v. JAMES A. HOLLOWAY, Defendant and Third-Party Plaintiff-Appellant (Kevin H. Hay, Third-Party Defendant-Appellee).
    Fifth District
    No. 5—83—0840
    Opinion filed January 28, 1985.

      Robert W. Wilson and Madelyn L. Lamb, both of Edwardsville, for appellant.
    Merle C. Bassett, of Merle C. Bassett, P.C., of Wood River, for appellee Melissa A. Galliher.
    Stephen C. Mudge, of Reed, Armstrong, Gorman & Coffey, of Edwards-ville, for other appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Appeal is taken from a judgment of the circuit court of Madison County, awarding plaintiff $30,000 for personal injuries. On the evening of January 4, 1981, Melissa Galliher (plaintiff) was riding as a passenger in her automobile when it collided with a vehicle owned by James Holloway (defendant). Plaintiffs vehicle was driven by Kevin Hay (third-party defendant). Paul Edmundston and Stephen Jones were also passengers in plaintiff’s automobile. Mr. Edmundston was interested in purchasing an automobile, and the four had journeyed to several locations in order to observe used vehicles.

Defendant’s vehicle had stalled on Illinois Route 143. Defendant testified that he had his lights on as he attempted to restart the engine. Plaintiff, third-party defendant, and Stephen Jones testified that they did not observe lights on defendant’s automobile. Defendant admitted that his emergency flashers were not activated. The front end of plaintiff’s vehicle collided with the rear end of defendant’s vehicle, and plaintiff, who was seated in the front passenger seat, was jolted forward into the windshield. Plaintiff sustained injuries to her forehead and mouth. Third-party defendant estimated his speed immediately before the collision at 45 miles per hour. Additional testimony established that defendant occasionally had trouble starting his automobile; however, the vehicle had received substantial repairs two days prior to the accident.

Plaintiff’s amended complaint was filed on February 16, 1982. Defendant’s third-party complaint was filed on March 5, 1982. Count I of defendant’s third-party complaint prayed for “full and complete indemnity from third-party defendant, in the event third-party plaintiff is found liable to plaintiff in any such amount.” Count II of defendant’s third-party complaint prayed for contribution from third-party defendant. Plaintiff’s subsequent motion to dismiss count I was granted by the trial court. Defendant’s motion to consolidate the instant actions with a separate action filed against defendant by third-party defendant was denied. Judgments for plaintiff and third-party defendant were entered on May 16, 1983. From these judgments, defendant appeals.

Defendant maintains that, as a matter of law, he was not negligent, and that the trial court erred in submitting the issue for resolution by the jury. Defendant contends that he was confronted with a “sudden mechanical failure.” This failure, defendant argues, was the result of a defective condition in defendant’s automobile of which defendant had no knowledge; moreover, the defect could not have been discovered by defendant’s reasonable inspection of the vehicle. Even if this factual assertion was not subject to dispute, the allegations of defendant’s negligent conduct extend to defendant’s purported behavior after the mechanical failure occurred. Plaintiff alleged that defendant failed to exercise proper care by defendant’s failure to keep his lights on as well as defendant’s failure to pull his vehicle off the road. Defendant admitted that, even without the use of his vehicle’s power steering, it would have been possible for defendant to remove his vehicle from the highway. Defendant further admitted that he failed to turn on his emergency flashers. These facts, together with the conflicting testimony regarding whether defendant even had his lights activated at the time of the accident, provided factual questions bearing directly on the issue of defendant’s negligence. The question was properly submitted to the jury for resolution.

The same facts and testimony which compel the conclusion that the issue of negligence was properly submitted to the jury similarly compel the conclusion that the jury’s verdict was not, as defendant maintains, against the manifest weight of the evidence. The evidence supporting the allegation of defendant’s negligent conduct, including defendant’s admitted failure to activate his emergency flashers and remove his vehicle from the road, was sufficient to support the jury’s finding that defendant’s conduct was the proximate cause of plaintiff’s injuries.

Defendant also contends that the trial court erred in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict. Defendant’s allegation of error rests upon the compound premise that (1) the negligence of third-party defendant, the driver of the vehicle in which plaintiff was a passenger, was the proximate cause of plaintiff’s injuries, and (2) that third-party defendant’s negligence should be imputed to plaintiff because plaintiff and third-party defendant were engaged in a “joint venture.” A joint venture, by virtue of which negligence may be imputed from the driver to occupants of an automobile, exists where driver and occupant are engaged in a journey which is part of a business enterprise in which the parties have a mutual interest. (Grubb v. Illinois Terminal Co. (1937), 366 Ill. 330, 338-39, 8 N.E.2d 934.) Defendant argues that a common interest of plaintiff and third-party defendant in helping their friend shop for an automobile, together with third-party defendant’s act of purchasing gasoline for plaintiff’s vehicle, established the requisite business enterprise. The mere sharing of incidental expenses incurred during the journey does not, however, constitute the business purpose essential to a joint venture; neither may the endeavor of aiding a friend in shopping for an automobile reasonably be considered as such. (See Babington v. Bogdanovic (1972), 7 Ill. App. 3d 593, 288 N.E.2d 40.) The negligence of third-party defendant was not, therefore, imputable to plaintiff under this theory.

The question of whether third-party defendant was negligent, and whether this negligence was the proximate cause of plaintiff’s injuries, was properly a matter for the jury to decide. As we have stated, the evidence was sufficient to support a reasoned conclusion that the negligence of defendant, and not that of third-party defendant, was the proximate cause of plaintiff’s injuries. Directed verdicts and judgments notwithstanding the verdict are appropriate only in those cases in which all the evidence, when viewed from the aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever be maintained. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) The trial court properly refused to direct a verdiet for defendant and to grant defendant’s motion for judgment notwithstanding the verdict.

Defendant also contends that the court erred in refusing to consolidate plaintiff’s action against defendant with third-party defendant’s action against defendant. The trial judge, guided by considerations of convenience and the rights of litigants, is granted broad discretion to consolidate and sever claims. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 355-56, 366 N.E.2d 327.) Unless this discretion has been abused, an appellate court will not disturb the trial court’s judgment. (Fanning v. McCarry (1971), 2 Ill. App. 3d 650, 653, 275 N.E.2d 897.) Defendant argues that failure to consolidate the actions resulted in substantial prejudice, since, by virtue of the court’s ruling, defendant was unable to demonstrate the alleged bias of third-party defendant. This bias, defendant maintains, was rooted in the fact that plaintiff and third-party defendant were represented in their respective actions by the same attorney. The peculiar relationship of attorney and client, it is argued, would place third-party defendant in a position to be unduly influenced by suggestions from his (and plaintiff’s) attorney in the preparation of third-party defendant’s testimony in plaintiff’s case. This argument also forms a basis of defendant’s contention that the trial court erred in granting plaintiff’s motion in limine precluding reference to plaintiff’s counsel’s role in third-party defendant’s companion case.

Where a witness in a civil suit has filed his own suit against the defendant, and where the witness’ action arises out of the same occurrence which is the subject matter of the proceeding to which he is a witness, the fact of the witness’ own suit is properly the subject of cross-examination for the purpose of demonstrating bias. (Feigl v. Terminal R.R. Association (1975), 30 Ill. App. 3d 55, 61, 332 N.E.2d 416.) The fact that third-party defendant had filed a separate action against defendant was elicited at trial. The jury was also apprised of the fact that plaintiff and third-party defendant were engaged to be married. The possibility of biased testimony on the part of third-party defendant as a result of these facts was apparent to the jury. In this context, we cannot agree that defendant’s case was substantially prejudiced by the inability of defendant to inform the jury, either by means of consolidated actions or cross-examination, that third-party defendant’s attorney in his own action was also plaintiff’s attorney. The trial judge’s refusal to consolidate the actions of plaintiff and third-party defendant was not an abuse of discretion, and the granting of the motion in limine, if error, did not result in substantial prejudice to defendant’s case.

Defendant also alleges that the trial court erred in dismissing his action for indemnity. Indemnity is a common law doctrine which shifts the entire responsibility from one tortfeasor, who has been compelled to pay the loss, to another tortfeasor. (Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 612, 422 N.E.2d 979.) The question of whether “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) has supplanted this doctrine and abolished actions predicated on indemnity has generated considerable discussion. (See, e.g., Anich, Implied Indemnity After Skinner & the Illinois Contribution Act: The Case for A Uniform Standard, 14 Loy. U. Chi. L. J. 531 (1983); Appel & Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative & Judicial Cooperation, 10 Loy. U. Chi. L. J. 169, 192-93 (1979).) While acknowledging the debate, the Illinois Supreme Court thus far has declined to resolve the issue. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 350-51, 459 N.E.2d 935; Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 453-54.) We need not resolve it here. If in fact the doctrine of implied indemnity is viable in light of the Contribution Act, it can operate only in the presence of a pretort relationship which creates a duty on the part of one tortfeasor to indemnify another, or pursuant to a claim of strict “upstream” liability for the manufacture or distribution of a defective product. (Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 774, 469 N.E.2d 653.) Neither of these elements was alleged in defendant’s third-party complaint. The trial court correctly dismissed that portion of defendant’s complaint praying for indemnification.

Defendant next contends that answers to certain questions asked of plaintiff by counsel for third-party defendant were wrongfully admitted by the trial court. These questions concerned the manner in which third-party defendant was driving prior to the accident. Plaintiff maintained in her answers that third-party defendant at all times exercised reasonable care in operating plaintiff’s vehicle.

Defendant admits that plaintiff’s contributory negligence was properly an issue at trial. Such contributory negligence on the part of a passenger can exist only where the passenger observes a dangerous condition developing, anticipates the danger, and fails either to warn or exercise control over the driver. (Newlin v. Foresman (1982), 103 Ill. App. 3d 1038, 1042, 432 N.E.2d 319.) The question of whether third-party defendant had been driving in a reckless or erratic manner, therefore, was determinative of plaintiff’s duty to exercise control over the driver. Defendant contends, however, that the testimony was inadmissible because it was elicited not by counsel for plaintiff in order to establish her lack of contributory negligence, but rather by counsel for third-party defendant in order to establish his lack of negligence. We find the distinction inconsequential. The allegation of plaintiffs contributory negligence necessarily implied an allegation of defendant’s negligence. Had the issue of plaintiff’s contributory negligence been determined adversely to plaintiff, this conclusion would, by definition, determine the issue of third-party defendant’s negligence adversely to third-party defendant. Questions probative of the issue of plaintiff’s contributory negligence were, therefore, properly within the scope of third-party defendant’s examination.

Defendant further contends that evidence of third-party defendant’s negligence, imputed to plaintiff pursuant to a theory of joint enterprise, was sufficient to create a question for the jury, and the court erred in granting plaintiff’s motion for a directed verdict on the issue of plaintiff’s contributory negligence. We have already rejected defendant’s theory of joint enterprise. In the absence of this mechanism imputing negligence from driver to passenger, the facts of the instant case support the trial court’s ruling. The mere presence of an owner-passenger in a vehicle does not impose a duty to control the driver. (Bauer v. Johnson (1980), 79 Ill. 2d 324, 330, 403 N.E.2d 524.) No passenger has a duty to keep a lookout or to control the driver unless the passenger knows or should know that such actions are essential to his or her own safety. (Bauer v. Johnson (1980), 79 Ill. 2d 324, 332; Restatement (Second) of Torts sec. 495, comments c and d (1965).) The record does not support defendant’s allegation that plaintiff knew or should have known that such actions were necessary.

Defendant contends that the trial court erred in allowing the following verdict form:

“We, the Jury, find for the third-party defendant, Kevin Hay, and against the third-party plaintiff, James Holloway.”

This verdict form supplemented another submitted without objection:

“We, the Jury, find that James A. Holloway is entitled to reimbursement from Kevin Hay and apportion damages as follows:
James A. Holloway.................... .%
Kevin Hay........................... .%
TOTAL 100%.”

Defendant argues that the forms were duplicative, and that the effect of allowing both forms was to preclude the jury from returning a contribution verdict. We find this argument untenable in light of the following instructions given to the jury:

“One who may be required to pay money for causing injury to another may, under certain circumstances, be reimbursed for a percentage of that sum from a third party. The circumstances under which such reimbursement is permitted will be explained to you in the following instructions.
To apportion damages, you must determine from all the evidence the relative degree of responsibility of James A. Holloway and Kevin Hay.
In making that determination, you should consider the extent, if any, to which the acts or omissions of James A. Holloway and Kevin Hay proximately caused Melissa Galliher’s injuries and damages.
In your verdict, you will apportion damages by stating the percentage of responsibility of James A. Holloway and Kevin Hay. The total of these percentages must add up to 100.”

The jury was also provided with a list of elements defendant was bound to establish in order to receive contribution from third-party defendant.

Verdict forms should be drawn with care and insure that they cover every possible finding under the evidence. (Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 177, 443 N.E.2d 774.) The form to which defendant objected did nothing more than insure the possibility of all findings under the evidence. Indeed, it is our judgment that it would have been error for the trial court to exclude the first form since its absence would preclude a finding in favor of third-party defendant.

Defendant’s final argument is that he was unduly restricted in his examination of plaintiff’s witness, Stephen Jones. Mr. Jones testified that, prior to the collision, he saw the headlights of plaintiff’s vehicle reflect off of the bumper of defendant’s vehicle. This testimony was purportedly inconsistent with a prior statement given to third-party defendant’s insurance agent. In counsel’s attempt to examine the inconsistency, the following exchange occurred:

“Q. Steve, you didn’t see this car ahead at all before the impact, did you?
A. Sir, just like I told that gentleman, I saw it right before we hit.
Q. You gave a statement to a gentleman named Joe Gatlin?
A. Yes. Insurance man.
Q. Where were you when Mr. Gatlin talked to you? Was that over the telephone, or did he talk to you in person?
A. In person.
Q. Was that at your home?
A. No. It was at an insurance company.”

An objection to this question by counsel for third-party defendant was sustained. The general rule is that reference to the fact that a defendant is insured is improper and constitutes reversible error. (Kirbach v. Commonwealth Edison Co. (1976), 40 Ill. App. 3d 587, 591, 352 N.E.2d 468.) Because of the prevalence of automobile insurance, however, courts are less prone to view such a reference as prejudicial. (Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 266, 362 N.E.2d 446.) A new trial is not appropriate where, as in the instant case, such a reference is made indirectly by someone other than plaintiffs counsel. (Newlin v. Foresman (1982), 103 Ill. App. 3d 1038, 1047-48.) Defendant maintains that,* once the reference to insurance was made by the witness, defendant should have been allowed to make it clear to the jury that the “insurance man” to which the witness referred was not the representative of defendant. The trial court properly precluded questions designed to elicit this information. Once an inadvertent and imprecise reference to insurance was made by the witness, the proper corrective could not have been to allow questions concerning which party’s insurance was at issue, since the information elicited by such questions could have served to prejudice third-party defendant. Defendant could have moved to strike the witness’ reference to insurance from the record. Having failed to so move, defendant may not subsequently complain of the prejudice, such as it was, which he suffered as a result of this reference.

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

Affirmed.

WELCH and EARNS, JJ., concur.