author: JUSTICE O’CONNOR

text:
    FRANCES J. KELLY, Plaintiff-Appellant, v. FRANKLIN J. LUNDING, JR., et al., Defendants-Appellees.
    First District (1st Division)
    No. 84—0978
    Opinion filed March 11, 1985.

      W. James Brown, of Chicago (Michael D. Gerstein, of counsel), for appellant.
    Peter B. Carey, of Chicago (Joyce & Kubasiak, P.C., of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Frances J. Kelly, brought a forcible entry and detainer action against defendants Franklin J. Lunding, Jr., and Helen S. Lunding for possession of the property located at 672 Elder Lane, Winnetka. Plaintiff claimed right of possession as the holder of a tax deed issued to plaintiff by the United States of America, Department of the Treasury, for unpaid Federal taxes. Defendants filed an answer denying that plaintiff was entitled to possession and that they unlawfully withheld possession and prayed for judgment in their favor. After a hearing at which evidence was introduced, the trial court found that the tax deed was void and entered judgment for defendants. Plaintiff appeals, contending that she was entitled to possession of the property because she complied with the statutory requirements of the forcible entry and detainer article of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 9 — 101 et seg.). Defendants contend that the controlling issue was the validity of the tax deed, upon which plaintiff’s right of possession solely depended, that this issue was properly before the trial court and properly decided by it.

In 1963 Franklin J. Lunding, Jr., acquired the property located at 672 Elder Lane, and resided there continuously and regularly with his family until some time in 1983 when he moved out. He and his family were regular and continuous residents at that location in September of 1982, when the Internal Revenue Service allegedly sold the property to the plaintiff, Frances J. Kelly, for unpaid taxes. The Internal Revenue Service knew that the Lundings resided at that address at that time, inasmuch as its records reflected that address as their residence.

Franklin Lunding, Jr. testified that he received no notice from the Internal Revenue Service or anyone else that it was going to sell his property for unpaid taxes on September 30, 1982. The first notice he received that any such sale had occurred was on or about May 11, 1983, when he received a document entitled “Notice of Termination of Tenancy” by registered mail from the plaintiff’s attorney. A subsequent investigation by him disclosed the tax sale. He received the notice of termination of tenancy more than seven months after the tax sale and well after the expiration of the time period in which he could have redeemed his property from the sale and after the Internal Revenue Service had issued to Frances Kelly a “District Director’s Deed” on April 21, 1983.

Mr. Robert M. DeMuro, a revenue officer employed by the Internal Revenue Service, testified that it was his specific duty to collect taxes from delinquent taxpayers, including the property located at 672 Elder Lane. He knew that Franklin Lunding, Jr., was the owner of that property. He also identified the record of the Internal Revenue Service “recording the actions relative to the seizure and sale of a piece of property,” and testified that he had personal knowledge of the facts, dates and activities conducted that were indicated in that record. He acknowledged that he was the one who served “notice” on Mr. Lunding, but that it was “not personal service.” He stated that the only “notice” given to Franklin J. Lunding, Jr., was mailed to his residence by certified mail, but that that notice was never received by Mr. Lunding. He also testified that he never attempted to deliver personally a copy of the notice to Mr. Lunding at any time or place.

We reject plaintiff’s argument that she was entitled to judgment because she complied with the statutory requirements of the Forcible Entry and Detainer Act. Assuming, arguendo, that she did comply, that compliance did not automatically require judgment in her favor; if the tax deed under which she claims the right of possession was void, the trial court correctly decided for defendants.

Section 9 — 106 of the forcible entry and detainer article (Ill. Rev. Stat. 1983, ch. 110, par. 9 — 106) provides in pertinent part:

“The defendant may under a general denial of the allegations of the complaint offer in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. ***”

In Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833, the court held that the validity of installment contracts for the purchase of realty was germane to the determination of the right of possession in a forcible entry and detainer action. The court said in referring to the Forcible Entry and Detainer Act (46 Ill. 2d 249, 256-57):

“Limiting ourselves to a consideration of the act only so far as it applies to contract purchasers of land, this case is, so far as we can ascertain, one of first impression in this court. It is our opinion that the defenses going to the validity and enforcibility of the contracts relied upon by the plaintiffs were germane to the distinctive purpose of the forcible entry and detainer actions and were improperly stricken. That purpose, to repeat, is to restore possession to one who is entitled to the right of possession. ‘Germane’ has been judicially defined as meaning ‘closely allied,’ and is further defined in Webster’s New Twentieth Century Dictionary, p. 767, as meaning: ‘closely related; closely connected; relevant; pertinent; appropriate.’ Where as here, the right to possession a plaintiff seeks to assert has its source in an installment contract for the purchase of real estate by the defendant, we believe it must necessarily follow that matters which go to the validity and enforcibility of that contract are germane, or relevant, to a determination of the right to possession.”

In HCT Corp. v. Southgate Village, Inc. (1980), 81 Ill. App. 3d 477, 401 N.E.2d 578, the court held that where right of possession has its source in an installment contract for the sale of realty, matters relating to the validity and enforcibility of the contract are germane to determination of the right of possession.

Under those authorities, the validity of plaintiff’s tax deed is the controlling question.

Plaintiff argues that the issue of the validity of the tax deed should not have been considered by the trial court because it was not raised by proper pleading. We disagree.

The first sentence of the above quoted paragraph of the forcible entry and detainer article states that a defendant under a “general denial” (which defendant filed here) may offer in evidence any matter in defense. The second sentence limits that evidence to matters which are germane to the claim of right of possession, whether raised by pleading “or otherwise.” The general denial permitted under the first sentence falls squarely within the meaning of “or otherwise.”

Defendants properly raised the issue of the validity of plaintiff’s tax deed by the evidence presented at the hearing.

The trial court, after an evidentiary hearing, held that the tax deed was void because no proper notice was given defendants. We affirm that decision.

Plaintiff properly contends, and defendants agree, that the question of the validity of the tax deed is to be decided under Federal law. (Popp v. Eberlein (7th Cir. 1969), 409 F.2d 309, cert, denied (1969), 396 U.S. 909, 24 L. Ed. 2d 185, 90 S. Ct. 222.) Plaintiff argues, however, that the question must be decided in the Federal and not in the State courts. We disagree. The State courts can decide the validity under the Federal statute. Popp v. Eberlein (7th Cir. 1969), 409 F.2d 309.

Section 6335 of title 26 of the United States Code sets forth the method and procedure for giving notice (26 U.S.C. sec. 6335 (1982)):

“(a) Notice of seizure. As soon as practicable after seizure of property, notice in writing shall be given by the Secretary to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the internal revenue district where the seizure is made. If the owner cannot be readily located, or has no dwelling or place of business within such district, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.
(b) Notice of sale. The Secretary shall as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (a).”

The notice provisions of section 6335 are mandatory; personal service is required. If the taxpayer never received the statutory notice, the sale is voidable ab initio.

In Reece v. Scoggins (5th Cir. 1975), 506 F.2d 967, the court affirmed the district court’s order vacating a purported sale to satisfy an income tax deficiency and voiding the certificate of sale issued to the purchaser. The property owner alleged in part the IRS failed to comply with 26 USC sec. 6335 in that notice of sale was given to the taxpayer and no written notice was left at the home as required by section 6335(b). The court said at pages 970-71:

“Because we determine, however, that the taxpayer never received the statutory notice of sale, we need not consider assertions of subsequent laxity. The sale was voidable ab initio.
We proceed from the proposition that sec. 6335 permitting the sale at public auction of a taxpayer’s land to satisfy a tax deficiency must be strictly construed. Johnson v. Gartlan, 334 F. Supp. 438 (E.D. Va. 1971), rev’d on other grounds, 470 F.2d 1104 (4th Cir. 1973), cert, denied, 414 U.S. 865, 94 S. Ct. 122, 38 L. Ed. 2d 85 (1973).
* * *
The section 6335 notice requirements are designed to protect the taxpayer by giving him an opportunity to be present at the tax sale and bid on the property. United States v. Conry, Civ. No. C — 73—2041 (N.D. Calif., Dec. 28, 1973); 74-1 U.S. Tax Cas. par. 9187; Bartell v. Riddell, 202 F. Supp. 70 (S.D. Calif. 1962). Cf. McAndrews v. Belknap, 141 F.2d 111, 114 (6th Cir. 1944). The language of this section is clear and mandatory; absent literal compliance with its provisions, the government sale of land cannot stand. Johnson v. Gartlan, supra; Margiotta v. District Director of Internal Revenue, 214 F.2d 518 (2d Cir. 1954). See also Bartell v. Riddell, supra; 9 Mertens, Law of Federal Income Taxation, sec. 49 — 193, chap. 49, par. 340.
In this case, the government did not give the landowner the notice required by section 6335(b). This provision explicitly requires that the IRS must give notice in writing of an intended sale of seized land. This written notice is to be delivered to the landowner personally, or if he is not home, it may be left at his usual place of abode or business if located within the same internal revenue district as the seized land. If the landowner cannot be located, or if such abode or place of business does not exist, the written notice may be mailed to the taxpayer’s last known address. I.R.S. Reg. sec. 301.6335 1(b)(1). In this case, the landowner never received written notice of the sale by any of the specified methods. While the IRS agent went to Reece’s home, he did not deliver written notice or leave it at the taxpayer’s home or place of business. The mailing of notice, even if done in a timely fashion, satisfies the statute only if the taxpayer has no dwelling or place of business within the revenue district. The IRS thus failed completely to comply with the notice provisions of the Code section governing tax sales of land. In these circumstances, we conclude that the district court was correct in vacating the purported tax sale and voiding the certificate of sale issued to the SPKZ Company.”

That the provisions of section 6335 must be followed, and that personal service is required, see also Aqua Bar & Lounge, Inc. v. United States (E.D. Penn. 1977), 438 F. Supp. 655.

The Internal Revenue Service’s record of the actions taken with respect to this property demonstrates that no effort was made to locate Mr. Lunding or to serve him personally with the required notice. Mr. Lunding could be readily located within the district both at his residence and his usual place of business. He had lived at the residence at 672 Elder Lane for a period of approximately 20 years on a continuous and regular basis, a fact known to the Internal Revenue Service as shown in the Internal Revenue files and as testified to by Mr. DeMuro. Also, defendant’s residence was listed in the local telephone directory, as was his usual place of business.

The burden of showing literal compliance with statutes governing the sale of land for taxes is upon the claimant under the tax sale. Johnson v. Gartlan (E.D. Va. 1971), 334 F. Supp. 438, rev’d on other grounds (4th Cir. 1973), 470 F.2d 1104, cert, denied (1973), 414 U.S. 865, 38 L. Ed. 2d 85, 94 S. Ct. 122; McAndrews v. Belknap (6th Cir. 1944), 141 F.2d 111, cert, denied (1944), 323 U.S. 721, 89 L. Ed. 580, 65 S. Ct. 53.

The presumption of validity attaching to official acts is not of such a force as to supply conclusive proof of the deed’s validity in order to validate the sale of real property for unpaid taxes. (McAndrews v. Belknap (6th Cir. 1944), 141 F.2d 111.) Defendants contend that the statute under which plaintiff claims title must be substantially complied with by the Internal Revenue Service before the deed “shall be considered and operate as a conveyance of all right, title, and interest” of the delinquent taxpayer’s interest in the property. (26 U.S.C. sec. 6339(b)(1982).) We agree.

The presumption attaching to the District Director’s deed has been overcome by affirmative evidence demonstrating that the Internal Revenue Service has failed to comply, substantially or otherwise, with the Federal statutory requirements pertaining to sales of property for delinquent taxes. The Federal statutes set out the procedures for satisfying the constitutional due process requirements. They provided that unless the taxpayer cannot be readily located in the district, he must receive actual notice at his residence or usual place of business of the contemplated tax sale. Here, the Internal Revenue Service did not even make an effort to serve personally Mr. Lunding at either of those locations, even though it knew, in the case of his residence, or should have known, in the case of his place of business, where he could be found. Because he could be readily located within the district, the mailing of the required notice was not permissible. (Johnson v. Gartlan (E.D. Va. 1971), 334 F. Supp. 438.) More significant is the fact that he never even received the notice that was mailed to him and that this fact was fully known to the Internal Revenue Service.

Where improper notice of sale has been given, a deed founded thereon is void and may be invalidated. Reece v. Scoggins (5th Cir. 1975), 506 F.2d 967.

Because the procedures set forth in 26 U.S.C. sec. 6335 et seq. (1982) were not complied with, substantially or otherwise, the District Director’s deed was not effective as a conveyance of Mr. Funding’s ti-tie in the property. The deed was void, and the trial court correctly so held. The fact that the plaintiff, Mrs. Kelly, may have acted innocently and in good faith does not change this result.

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

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    DOROTHY MARIE WILLIAMS, Plaintiff-Appellee, v. SPRINGFIELD MARINE BANK, Trustee, et al., Defendants (Debra Marie Williams, a Minor, et al., Defendants-Appellants).
    Fourth District
    No. 4—84—0602
    Opinion filed March 12, 1985.
    Gary L. Smith, of Douglas G. Brown, P.C., of Springfield, for appellants.
    John G. Hayes, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The plaintiff, Dorothy Williams, filed a declaratory judgment action seeking construction of a trust agreement executed by her parents. The trustee, Springfield Marine Bank, and the plaintiffs children were named as defendants. A guardian ad litem was appointed to represent the plaintiffs minor children. The guardian ad litem appeals from a judgment on the pleadings in favor of the plaintiff. At issue is whether an addendum to the trust agreement executed by one of the settlors was a valid exercise of either a power to amend or a power of appointment by'will.

On February 14, 1974, Ernest and Martha Olsen, husband and wife, entered into a trust agreement naming Springfield Marine Bank as trustee. The Olsens were made lifetime beneficiaries of the trust. Upon the death of the first settlor, the trust was to be divided into two separate trusts known as Trust A and Trust B. The surviving settlor was given a power of appointment exercisable by will over Trust A. In addition, paragraph 7 of the agreement stated, in part:

“Upon the death of the surviving Settlor, the Trustee shall make distribution of the remainder of Trusts A and B in accordance with the power of appointment and the bequests provided in surviving Settlor’s Last Will and Testament or each surviving Settlor’s Last Will and Testament has failed to provide for the disposition of said property, the Trustee shall make distribution of the remaining trust estates to Settlors’ daughter, Dorothy Marie Williams, if she be living, but if she has predeceased said surviving Settlor, then to her descendants, per stirpes, said distribution to be made to said descendents as and when each attains the age of twenty-five (25) years.”

On April 1, 1978, Martha Olsen died. Ernest Olsen executed his last will on October 31, 1978. He gave all his personal property to his daughter and directed the residue of his estate, excluding any property over which he had power of appointment, to be added to the trust held under that agreement. On the same date, he executed a document entitled “Addendum to Ernest A. and Martha B. Olsen Trust No. 51 — 037—0.” The addendum extended the trust agreement for the benefit of Williams during her lifetime. If she predeceased Ernest Olsen or died during the minority of any of her children, then the trustee was to continue to administer the trust for the benefit of her descendents until the youngest reached the age of 25. At that time, the trustee was to distribute the assets of the trust equally among the descendents. In the final paragraph of the addendum, Ernest Olsen reaffirmed the trust in all other aspects.

Ernest Olsen died on August 5, 1983. Thereafter, Williams filed a complaint requesting the court to declare the addendum null and void. She contended Ernest Olsen alone had no' power to amend the trust. Williams’ two sons who had reached majority consented to a judgment against themselves. The court appointed a guardian ad litem for Williams’ minor children. Williams moved for judgment on the pleadings, which the court granted. The court directed the corpus and accumulated income of the trust be distributed to Williams.

The guardian ad litem asserts the trial court erred in holding that the survivor of the two settlors could not amend the trust. Generally, a settlor cannot modify or revoke a trust unless he has reserved the power to do so in the trust agreement. (Mortimer v. Mortimer (1972), 6 Ill. App. 3d 217, 222, 285 N.E.2d 542, 545; Restatement (Second) of Trusts sec. 331(1) (1959).)When a method of exercising a power to modify is described in the trust agreement, the power may be asserted only in that manner. Parish v. Parish (1963), 29 Ill. 2d 141, 149, 193 N.E.2d 761, 766; Northwestern University v. McLoraine (1982), 108 Ill. App. 3d 310, 317, 438 N.E.2d 1369, 1373.

The trust agreement did address the power to amend. Paragraph 3 stated, in part:

“The Settlors hereby specifically reserve the right to add to, amend, alter or cancel the Trust herein created. In the event of any additions to, alterations, or amendments of this Trust Agreement, the Trustee hereby specifically reserves the right of approval or rejection of any and all terms or conditions thereof.”

Paragraph 1 designated Ernest and Martha Olsen as “Settlors.” Paragraph 26 provided:

“The Settlors may at any time or times during their lifetime by instrument in writing delivered to the trustee amend or revoke this agreement in whole or in part. The trust property to which any revocation relates shall be conveyed to the Settlors or otherwise as they direct. This power is personal to the Settlors and may not be exercised by their legal representative or others.”

The guardian ad litem contends the settlors would have wanted either of them to have the power to amend the trust at any time. He urges us to construe the trust to reflect this intent. The court’s primary concern in construing a trust is to discover the intent that the settlors had when they executed the instrument. The court must consider the plain and ordinary meaning of the words used, and the intent must be ascertained from the entire document. Thus, the inquiry is not limited to the language of a particular phrase, sentence or clause. (First National Bank v. Canton Council of Campfire Girls, Inc. (1981), 85 Ill. 2d 507, 514-15, 426 N.E.2d 1198, 1201-02.) The court, however, is limited to establishing not what the settlors meant to say, but what was meant by what they did say. (Karanaugh v. Estate of Dobrowolski (1980), 86 Ill. App. 3d 33, 41, 407 N.E.2d 856, 863.) The court’s function, therefore, is not to modify the trust or create new terms different from those to which the parties have agreed. Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 450, 427 N.E.2d 1217, 1221.

The guardian ad litem relies on the Tarre case in support of his argument. In Tarre, a husband and wife transferred property into two separate trusts. After the wife died, the husband executed an amendment to his trust, which the supreme court held was valid. The court noted the agreement expressly reserved to each settlor the power to amend or revoke the agreement as to their respective trusts. Nothing in. the agreement indicated that the other’s consent was required or that the power could be exercised only while both settlors were alive. In order to hold the husband’s amendment was invalid, the court decided “it would be necessary to.read into that agreement conditions it does not contain, and which are contrary to the express language of the instrument and its clear intent.” 86 Ill. 2d 441, 450, 427 N.E.2d 1217, 1221.

Unlike Tarre, the settlors in this case created a joint trust, which implies that any change would also be jointly made. To adopt the interpretation urged by the guardian ad litem would mean that either settlor could have modified or revoked the trust while both were living. Nothing in the agreement supports this interpretation. In fact, the express language supports a contrary construction. Unlike the agreement in Tarre, the present one did not expressly reserve the power to modify to each settlor. Instead, both paragraphs 3 and 26 reserved the power to the “Settlors.” Paragraph 26 uses the word “their,” also a plural. The guardian ad litem maintains the settlors may have used the word “their” instead of the singular pronouns, his or her, in an effort at gender awareness. The prevalent use of the phrase “his or her” throughout the agreement negates this contention. Finally, other portions of the agreement demonstrate that when the settlors wanted a power to be exercisable by either of them, they expressly provided for it.

The guardian ad litem contends the agreement should be construed to give the surviving settlor the power to amend. He points out that the surviving settlor had a power of appointment over the trust. The agreement, however, limited that power so that it could be exercised only by will. Moreover, when the settlors intended the survivor to have a power exercisable alone, they expressly provided for it. Courts from other jurisdictions have consistently held that clauses similar to paragraph 26 create only a joint power which cannot be exercised by the surviving settlor. (In re Race’s Trust (1957), 9 Misc. 2d 155, 169 N.Y.S.2d 600; Noble v. Rogan (S.D. Cal. 1943), 49 F. Supp. 370; In re Solomon’s Estate (1938), 332 Pa. 462, 2 A.2d 825; Crolcer v. Croker (1921), 117 Misc. 558, 192 N.Y.S. 666.) Where the power to modify a trust has been reserved to the joint settlors of the trust, both must join in executing an instrument to effectuate a change. An attempted modification by one after the death of the other is a nullity. Culver v. Title Guarantee & Trust Co. (1945), 269 App. Div. 627, 58 N.Y.S.2d 116.

As previously mentioned, the surviving settlor had a power of appointment exercisable by will. The guardian ad litem argues the addendum was a valid will. Section 4 — 3 of the Probate Act of 1975 requires every will to be in writing signed by the testator or by someone in the testator’s presence and by his direction and attested by at least two credible witnesses in the testator’s presence. (Ill. Rev. Stat. 1983, ch. 1101/2, par. 4 — 3.) Ernest Olsen signed the addendum, as did Dale Hendricks, Springfield Marine Bank’s trust officer. In addition, Harold Olsen, Ernest Olsen’s attorney, initialed all three pages of the addendum. The guardian ad litem concludes the statutory requirements were met.

We have some doubt as to whether the guardian ad litem is correct. One who signs his name to a will is not an attesting witness unless he signs with that intention and not for some other purpose. (2 Page on Wills sec. 19.129, at 246 (Bowe-Parker rev. 1960).) In Gump v. Gowans (1907), 226 Ill. 635, 80 N.E. 1086, the court refused to admit a deed to probate as a will. An attempt was made to supply one of the required witnesses by the signature of the deceased’s husband on the deed. The court first noted that the husband had signed as a grantor and not for the purpose of attesting his wife’s signature. The court went on to hold that even if he had signed as an attesting witness, the husband could not be a competent witness.

Attesting witnesses are regarded, in law, as persons placed around the testator in order that no fraud be practiced upon him in the execution of the will and to judge his capacity. (In re Estate of Weaver (1977), 50 Ill. App. 3d 223, 230, 365 N.E.2d 1038, 1044.) Hendricks clearly did not sign the addendum with the intention of being an attesting witness. The original agreement required the trustee’s approval of any modification. Rather than signing in his individual capacity as a witness, Hendricks signed as a trust officer on behalf of the corporate trustee.

More importantly, we cannot construe the addendum as a will. Ernest Olsen clearly intended the addendum to act as an inter vivos amendment to the trust agreement rather than as a testamentary disposition.

“If the intention of the maker is fairly and honestly in doubt and if instrument is valid if of one type and invalid if of another, many courts will construe it to be of the type which will render it valid. The courts prefer in instances of honest doubt that solemn, written instruments be given some effect rather than none at all. *** This can not be done however if the language of the instrument is clear or if the actual evidence of the maker’s intention more strongly points to an instrument of one type than another, *** although its execution would be sufficient if of such other type, but insufficient if of the type intended by the maker.” 1 Page on Wills sec. 6.4, at 234-35 (Bowe-Parker rev. 1960).

Ernest Olsen titled the document as an addendum to the trust agreement rather than as a will. Furthermore, the addendum was not executed with the usual formalities of a will, such as an attestation clause. The guardian ad litem correctly points out that it is the maker’s intent rather than the form of the document which determines if it is a will. (In re Estate of Francoeur (1972), 8 Ill. App. 3d 567, 290 N.E.2d 396.) The fact that Ernest Olsen executed another document with all the usual formalities of a will on the same day, however, strongly indicates he did not intend the addendum to operate as a testamentary disposition.

The guardian ad litem cites cases in which courts have construed letters or contracts as wills or codicils. (Austin v. First Trust & Savings Bank (1931), 343 Ill. 406, 175 N.E. 554; Brown v. Peters (1976), 39 Ill. App. 3d 962, 350 N.E.2d 565; In re Estate of Francoeur (1972), 8 Ill. App. 3d 567, 290 N.E .2d 396; In re Estate of Apsey (1936), 285 Ill. App. 29, 1 N.E.2d 558.) In each case, the document in question contained language evidencing a testamentary intent. There must be something in the writing itself which imparts to it a testamentary character. Noble v. Fickes (1907), 230 Ill. 594, 82 N.E.950.

“An instrument is not a will unless it is executed with testamentary intent. The animus testandi does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revokable disposition of his property to take effect after his death. It is essential, however, that the maker shall have intended to express his testamentary wishes in the particular instrument offered for probate.” Hinson v. Hinson (1955), 154 Tex. 561, 564, 280 S.W.2d 731, 733.

The language of the addendum suggests that it was to become effective immediately. The introductory paragraph states that it is made on October 31, 1978, and “does hereby extend” the original agreement for the benefit of the settlor’s daughter, during her lifetime, and upon her death for the benefit of her descendents. Nothing in the addendum made Williams’ lifetime interest contingent on the death of her father. Although the enjoyment of the descendents’ interests was made partially dependent on whether Williams predeceased her father, this did not render the disposition testamentary. The addendum attempted to create an immediate equitable interest in these beneficiaries. (In re Estate of Petralia (1965), 32 Ill. 2d 134, 204 N.E.2d 1.) Ernest Olsen assumed he could make an inter vivos amendment to the trust. We cannot construe this addendum as testamentary merely because it was ineffective as an inter vivos amendment. The maker must intend at the time of the execution that the document itself operate as a will or codicil. In re Will of Mucci (1975), 287 N.C. 26, 30, 213 S.E.2d 207, 210.

For these reasons, the judgment of the trial court is affirmed.

Affirmed.

GREEN, P.J., and MILLS, J., concur.


author: JUSTICE LINN

text:
    PATRICIA FERGUSON, Plaintiff-Appellee, v. LEONARD KASBOHM et al., Defendants-Appellants.
    First District (4th Division)
    No. 84—237
    Opinion filed February 28, 1985.
    Rehearing denied April 4, 1985.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom, Gary A. Schafersman, and Shaun McFarland, of counsel), for appellants.
    Patrick J. Reynolds, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff-licensee suffered injury to her right arm and wrist when the rope she was using to pull defendants-property-owners’ boat out of the water snapped. The injury occurred on defendants’ Michigan property. Plaintiff brought suit in Cook County, alleging negligence and wilful and wanton misconduct.

Following a bench trial, the trial judge found that defendants had or should have had knowledge of a latent defect in the rope and that the elements of both negligence and wilful and wanton misconduct were proved. The trial court awarded a $15,000 judgment on the wilful and wanton count only. Defendants now appeal, asserting that the Michigan recreational use statute (Mich. Comp. Laws sec. 300.201 (1979)), which limits landowner liability to gratuitous recreational users to injuries resulting from gross negligence or wilful and wanton misconduct, is applicable and that their conduct was not wilful and wanton.

We reverse the decision of the trial court.

Background

In July 1978, plaintiff, Patricia Ferguson, visited her sister and brother-in-law, Arleda and Leonard Kasbohm, defendants, at their property in Michigan. During the visit, plaintiff decided to go fishing with two others in defendants’ rowboat. Plaintiff knew that defendants had purchased the boat used a couple of years before, and plaintiff had seen the boat on prior occasions. Plaintiff had many years of experience at handling boats and fishing and in the use of ropes and lines in handling such boats.

Defendants gave plaintiff permission to use their boat to go fishing. The boat had a manila rope, approximately one-half to three-quarters of an inch thick, attached to its bow, with the other end attached to a homemade anchor. When plaintiff and the others were done fishing, they brought the rowboat back to shore. Plaintiff got out of the boat and started to pull on the rope while the boat, with the other passengers seated therein, was still in the water. Plaintiff dug her heels into the ground, leaned backwards and pulled on the rope. The rope snapped, causing plaintiff to fall backwards, injuring her right arm and wrist. Plaintiff brought suit in the circuit court of Cook County for the injuries she sustained.

Plaintiff alleged in count I of her complaint that defendants were negligent by their failure to inspect the boat and rope, their failure to warn plaintiff of the defective condition, and their failure to safely equip and maintain the boat. In her amended complaint, plaintiff added a second count for wilful and wanton misconduct, alleging that defendants had failed to warn her of the defective condition of the rope although they knew of said condition and that defendants failed to replace the rope prior to the date of plaintiff’s injury.

After hearing the testimony of plaintiff, defendant Leonard Kasbohm, and plaintiff’s uncle Harold Sanders, the trial judge, applying Illinois law, found that defendants had knowledge of a latent defect in the rope and ruled in plaintiff’s favor on both counts. The trial court entered judgment only on count II, wilful and wanton misconduct, in the amount of $15,000. Defendants now appeal.

Opinion

I

Defendants’ first argument on appeal is that the trial court erred by refusing to apply Michigan law in general, and the Michigan recreational use statute (Mich. Comp. Laws. sec. 300.201 (1979)) in particular. To determine the merit of defendants’ contention, we must look at the applicable conflict of laws rules in Illinois.

Illinois applies the “most significant relationship test” when determining the applicable law in tort actions. This test embodies the presumption that the local law of the State where the injury occurred governs the rights and liabilities of the parties unless another State has a more significant relationship to the occurrence or to the parties involved. (Pittway Corp. v. Lockheed Aircraft Corp. (7th Cir. 1981), 641 F.2d 524.) Thus, the law of the State where the tort occurred, here Michigan law, will be used to decide the outcome of the present action unless Illinois has a more significant relationship to either the parties or the injury. Harkcom v. East Texas Motor Freight Lines, Inc. (1982), 104 Ill. App. 3d 780, 433 N.E.2d 291.

Under the facts at bar, we find no reason to supplant the presumptive importance given to the place of injury, here Michigan, in deciding the choice of law to be applied. There is nothing in the record to suggest that Illinois has a more significant relationship to the occurrence than does Michigan. The injury occurred in Michigan, the boat is located in Michigan, and defendants’ property is in Michigan. In addition, the defendants are Michigan domiciliaries. While plaintiff is domiciled in Illinois, this single factor is not sufficient to overcome the presumption that the local law of the State in which the injury occurred governs this action. It was therefore incumbent on the trial court to apply Michigan law.

The real issue here is not, however, whether Michigan law applies but whether, as defendants contend, the Michigan recreational use statute applies. (Mich. Comp. Laws. sec. 300.201 (1979).) The recreational use statute, which governs the liability of landowners for injuries to gratuitous recreational users of property, reads in pertinent part as follows:

“300.201. Liability of landowners for injuries to guests; gross negligence; wilful and wanton misconduct
Sec. 1. No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.”

The statute does not change the common law duty of owners and occupiers of property to those who come upon such property as mere licensees. (Estate of Thomas v. Consumers Power Co. (1975), 58 Mich. App. 486, 228 N.W.2d 786.) It does, however, shield from liability all owners of land within its purview from all acts of negligence, whether active or passive. (Crawford v. Consumers Power Co. (1981), 108 Mich. App. 232, 310 N.W.2d 343.) The trial court’s finding in favor of plaintiff on count I, the negligence count, therefore suggests that the trial court determined that the recreational use statute was not applicable to the instant case and that it decided the matter under common law tort principles. Because application of the Michigan statute is a matter of law, the trial court’s decision as to its inapplicability is properly before this appellate court. And, while we do not readily attempt to discern the intent of the Michigan legislature in enacting their recreational use statute, we must do so in order to justly resolve the instant issues. We do, of course, rely on the law of Michigan to interpret this Michigan statute.

Michigan courts have interpreted section 300.201 (Mich. Comp. Laws sec. 300.201 (1979)) as merely codifying principles that are universally recognized in common law jurisdictions with regard to such duties owed by owners and occupiers of property to those who come upon such property merely as licensees. (Crawford v. Consumers Power Co. (1981), 108 Mich. App. 232, 310 N.W.2d 343; Estate of Thomas v. Consumers Power Co. (1975), 58 Mich. App. 486, 228 N.W.2d 786, aff’d in part, rev’d in part on other grounds (1975), 394 Mich. 459, 231 N.W.2d 653.) In Michigan, a social guest is viewed as a licensee. (Preston v. Sleziak (1970), 383 Mich. 442, 175 N.W.2d 759.) The trial court, however, interpreted the recreational use statute to apply only to those licensees who go onto the property of another specifically and, apparently, exclusively for the purpose of indulging in a particular outdoor recreational use. Based on the plain language of section 300.201, we find the trial court’s interpretation of the class against whom the statute protects landowners from liability for negligence to be too narrow.

Section 300.201 provides that no cause of action shall arise for injuries to a licensee who is on the land of another “without paying valuable consideration for the purpose of * * * any outdoor recreational use.” The words “for the purpose of” modify “paying valuable consideration for”; they do not, as the trial court interpreted, modify the phrase “on the lands of another.” In section 300.201, the words “for the purpose of” are synonymous with “in exchange for.” One must pay valuable consideration for the purpose of outdoor recreational use or in exchange for outdoor recreational use in order to have a cause of action against the landowner for negligence.

In the instant case, plaintiff, an adult social guest, was a licensee who was on defendants’ land and had not paid any valuable consideration to be allowed to engage in a particular recreational use. Plaintiff had not paid defendants a fee for the purpose of fishing. The fact that plaintiff was on defendants’ land with their permission and had in fact used defendants’ boat with their permission does not alter plaintiff’s status in regard to the express provisions of the Michigan recreational use statute. Section 300.201 explicitly sets forth that it applies to persons on another’s land “with or without permission.” (Mich. Comp. Laws sec. 300.201 (1979).) Because (1) Michigan courts have interpreted the recreational use statute to be a codification of the duties owned by owners of property to licensees, and (2) plaintiff was a licensee who (3) did not pay valuable consideration for the purpose of outdoor recreational use, we find no basis on which to affirm the trial court’s determination that section 300.201 does not apply to the present case.

Because section 300.201 shields from liability all owners of land falling within its purview for all acts of negligence, whether active or passive (Crawford v. Consumers Power Co. (1981), 108 Mich. App. 232, 310 N.W.2d 343), the trial court’s finding in favor of plaintiff on count I, for negligence, cannot stand and is, therefore, reversed.

II

This brings us to count II of plaintiff’s complaint, alleging wilful and wanton misconduct, liability for which landowners are not shielded under the Michigan recreational use statute. The three elements necessary to prove defendants guilty of wilful and wanton behavior have been set forth by the Michigan Supreme Court in Burnett v. City of Adrian (1982), 414 Mich. 448, 463, 326 N.W.2d 810, 815, as follows:

“(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another;
(2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand;
(3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.” (Emphasis added.)

The Burnett court, affirming these elements first set forth in Gibbard v. Cursan (1923), 225 Mich. 311, 196 N.W. 398, stressed that it is this last element, the recognition of serious or dire consequences, that sets apart wilful and wanton misconduct from negligence. (414 Mich. 448, 471-72, 326 N.W.2d 810, 819.) It is also this last element that is missing under the facts of the instant case.

There was much testimony adduced at trial as to the defendants’ knowledge of the condition of the rope and as to the condition of the rope itself. However, there was no evidence that would make it apparent to the ordinary mind that any lack of care on defendants’ part, whether to warn of the rope or to replace the rope, would be “likely to prove disastrous” to another. A dangling, high voltage wire which may and does result in death by electrocution is likely to prove disastrous to another. (Crawford v. Consumers Power Co. (1981), 108 Mich. App. 232, 310 N.W.2d 343.) An unmarked guy wire of a utility pole that violates the industry’s safety code and may and does result in a snowmobiler’s death is likely to prove disastrous to another. (Estate of Thomas v. Consumer Power Co. (1975), 394 Mich. 459, 231 N.W.2d 653.) An unsafe dock upon which children fish and from which a child may and does fall to his death is likely to prove disastrous to another. (Magerowski v. Standard Oil Co. (W.D. Mich. 1967), 274 F. Supp. 246.) A faded one-half- to three-fourths-inch-thick manila rope attached to the bow of a rowboat used for fishing simply does not rise to the status of a threatened danger which, if left unaverted, will apparently result in consequences likely to prove disastrous to another. Plaintiff has even failed to allege that as a consequence of defendants’ allegedly wilful misconduct, it would be apparent to the ordinary person that the result would be likely to prove disastrous to anther. At least one Michigan court has found that such an omission in and of itself renders fatal a claim for wilful and wanton misconduct brought under the recreational use statute. Graham v. County of Gratiot (1983), 126 Mich. App. 385, 337 N.W.2d 73.

Moreover, an owner or occupier of land has no duty to warn or otherwise protect persons coming upon the land from obvious, as opposed to hidden, defects. (Kirner v. Central Foundry Division, General Motors Corp. (1972), 41 Mich. App. 211, 199 N.W.2d 827.) The testimony adduced at trial proved that plaintiff had actual knowledge that defendants purchased the boat used a couple of years before the fishing incident, that she saw nothing about the boat that was new, and that the rope on the boat was obviously old and faded. Thus, the “defect” in the rope that caused it to break, namely its age, would hardly qualify as hidden.

For these reasons, we find that the trial court’s decision in favor of plaintiff on count II of her complaint, that count alleging wilful and wanton misconduct, is against the manifest weight of the evidence and must be reversed.

Accordingly, we reverse the decision of the trial court.

Reversed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE SCHNAKE

text:
    DANITO PADLO, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID et al., Defendant-Appellant.
    Second District
    No. 84—561
    Opinion filed March 8, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Katherine M. Marshall and Karen Konieczny, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Katherine Bissell, of Prairie State Legal Services, of Geneva, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

This is an appeal from the order of the circuit court of Du Page County remanding for a new hearing the final administrative decision of the Illinois Department of Public Aid (Department) which temporarily reduced the amount of the plaintiff’s public assistance grant. The circuit court concluded that the Department’s policy of conducting benefit reduction hearings via teleconference phone calls failed to afford the plaintiff, Danita Padlo, constitutional due process and violated both the Illinois Public Aid Code and the Illinois Administrative Procedure Act. This court granted the petition for leave to appeal pursuant to Supreme Court Rule 306. Since we hold the Department’s policy violated sections 11 — 8.1 and 11 — 8.2 of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, pars. 11 — 8.1, 11— 8.2), we affirm.

Prior to January 1983, Danito Padlo received $250 per month in Aid to Families with Dependent Children (AFDC) benefits. As an AFDC recipient, Padlo was required to participate in the Win Demonstration Program (WDP), which is designed to help AFDC recipients locate and obtain employment. The program requires the AFDC recipient to make 20 employer contacts within a 30-day period. Individuals who fail or refuse to participate in the program, without good cause, are subject to various sanctions, including reduction of benefits for a three-month period.

Padlo began the program on October 6, 1982, but failed to make a single employer contact by her October 29, 1982, appointment. Padlo then failed to make her November 12, 1982, appointment, but did mail in a list which showed only four employer contacts. Padlo also failed to make her November 24, 1982, and December 9, 1982, appointments. Padlo gave several reasons for her failure to meet the program’s requirements, including being evicted in mid-October, lack of transportation and her child’s illness in November.

On January 10, 1983, Ms. Padlo was sanctioned for “noncooperation,” and her AFDC grant was reduced for a three-month period. Ms. Padlo appealed the imposition of this sanction, and a hearing was held on February 7, 1983, at the Du Page County Department of Public Aid. Ms. Padlo, her attorney and three caseworkers from the Department were present. The hearing officer, Esther Fishman, was in Chicago and conducted the hearing via a teleconference phone call. Ms. Fishman convened the hearing, swore witnesses, heard oral testimony, recorded the testimony, admitted documents which were then mailed to her and questioned witnesses. The issue at the hearing was whether Ms. Padlo had good cause for her failure to participate in the WDP.

After hearing the testimony and considering the documentary evidence, Ms. Fishman submitted her findings of fact to the Director. The Director determined that Ms. Padlo had not cooperated with the WDP and on February 18, 1983, affirmed the decision to reduce her AFDC benefits. On March 18, 1983, Ms. Padlo filed a complaint for administrative review in the circuit court of Du Page County. On May 15, 1984, the circuit court remanded the matter to the Department for a new hearing. The court found: (1) that conducting the hearing by telephone deprived Ms. Padlo of the constitutional guarantees of due process; (2) that the use of a telephonic hearing violated the Public Aid Code and (3) that the use of a telephonic hearing violated the Administrative Procedure Act.

The Dlinois Public Aid Code sets forth procedures for processing appeals under the AFDS program:

“Upon receipt of an appeal the Illinois Department, Public Aid Committee, or Commissioner of Appeals, as the case may be, shall review the case. The appellant shall be entitled to appear in person and to be represented by counsel. He shall be afforded an opportunity to present all relevant matter in support of his claim for aid, or his objection to (a) termination of aid, or (b) the amount of aid, or (c) a determination to make a protective payment.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 23, par. 11-8.1.
“The appeal shall be heard in the county where the appellant resides. However, if the appellant is outside the state, the Illinois Department, Public Aid Committee, or Commissioner of Appeals, as the case may be, make take depositions from him and his witnesses or permit the appellant to present all relevant matter in support of his claim through witnesses acting in his behalf, or both by deposition or by testimony of witnesses, depending upon the circumstances in each case.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 23, par. 11 — 8.2.

The Appellate Court for the Third District addressed this precise issue in Sleeth v. Department of Public Aid (1984), 125 Ill. App. 3d 847, where it held that the Department’s policy of holding appeal hearings by teleconference phone calls violated the Illinois Public Aid Code. The court reasoned:

“The essence of a hearing is the opportunity to be heard by the listener. One can be heard by written affidavit, by closed circuit television, by video tape recording, by telephone or by actual appearance. Each method offers an opportunity to be heard, but only with the last mentioned method is the situs of the hearing — is the place where the listener hears — in the actual presence of the speaker.
In the instant case, the listener was not one of the local office personnel in Peoria, but the officer or officers located in Chicago. The speakers were the plaintiffs, and under the procedures followed by the IDPA, the plaintiffs were not present at the situs of the hearing. It follows then that the hearing was not conducted in the county of the plaintiffs’ residence. We must conclude that the procedures utilized by the IDPA for telephone conference hearings failed to meet statutory requirements of the Illinois Public Aid Code.” 125 Ill. App. 3d 847, 852.

We agree that an appeal conducted by a teleconference phone call to a hearing officer located in a different county is not conducted “in person” or “in the county where the appellant resides” as required by sections 11 — 8.1 and 11 — 8.2 of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, pars. 11 — 8.1, 11 — 8.2). We, therefore, affirm the circuit court’s order remanding the matter to the Department for a new hearing.

Affirmed.

HOPE and STROUSE, JJ., concur.


author: JUSTICE REINHARD PRESIDING JUSTICE NASH,

text:
    BRIAN TETER, Plaintiff-Appellant, v. ORVILLE CLEMENS et al., Defendants-Appellees.
    Second District
    No. 84—254
    Opinion filed March 8, 1985.

      NASH, P.J., dissenting.
    H. Kent Heller, of Harlan Heller, Ltd., of Naperville, for appellant.
    Lloyd J. Tyler, of Tyler, Solomon & Hughes, of Aurora, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Brian Teter, appeals from the dismissal of his amended complaint upon the motion to dismiss (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615) of defendants, Orville and Betty Clemens. Plaintiff, age five at the time of the occurrence, stated in his complaint that he sustained injury resulting from being struck in the eye with a pellet which had been fired from a pellet pump pistol by the defendants’ five-year-old grandson who had come into possession of that pistol from a place alleged to be accessible to the reach of the grandson on defendants’ premises.

The issues presented on appeal are whether plaintiff’s three-count amended complaint stated a cause of action, and whether the trial court should have allowed plaintiff leave to amend in the event the amended complaint did not state a cause of action.

Plaintiff’s three-count complaint alleged as to all counts that on June 2, 1968, plaintiff was then five years old, that Greg Clemens, the grandson of defendants, was also five years old, that defendants had previously purchased a pellet pump pistol and ammunition, and that defendants knew or should have known that their grandson came upon their premises with playmates. In count I, plaintiff predicates his cause of action against defendants for their negligent entrustment of a pellet pump pistol, alleged to be a dangerous instrumentality, to their grandson, who came into possession of the pistol from a place accessible to the reach of their grandson in their home. He alleges defendants knew or should have known their grandson was a young child not skilled in the use of a pellet pistol and a member of a class notoriously likely to misuse a pellet pistol, defendants knew or should have known he might discharge the pellet pistol and harm could come to plaintiff or other children, defendants placed the loaded pellet pistol “in such a place as to be accessible to the reach of the young grandchild,” and the grandchild came into possession of the pellet pistol and discharged it on defendants’ premises causing injury to the plaintiff.

In count II, plaintiff seeks to recover against defendants as owners of the premises for defendants’ failure to warn him of the risk of being on their premises when their grandson was in possession of the pellet pistol which it is alleged created an unreasonable, dangerous condition on the premises. Plaintiff states he was of such an age that he was unaware of the nature of the risk should defendants’ grandson come into possession of the pellet pistol, defendants did not warn him of the risk of being on their premises when their grandson was in possession of the pistol, defendants knew or should have known of their grandson’s possession of the pistol, or should have taken precautions to prevent such possession, and defendants’ grandson’s possession of the pistol on the premises created an unreasonable, dangerous condition requiring defendants to warn plaintiff.

Count III sought to set aside a release executed by plaintiff’s parents, which plaintiff now claims was obtained through the mutual mistake of fact as to the permanency of his eye injury.

Defendants’ motion to dismiss was pursuant to section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1983, ch. 110, par. 2 — 615) and alleged the amended complaint was insufficient in law because plaintiff could not recover on a negligence theory and defendants had no duty to supervise the activities in question. The trial court dismissed the amended complaint without providing a basis for the order in the record provided us.

In considering a motion to dismiss for failure to state a cause of action, plaintiff’s pleaded facts are assumed to be true (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 232, 408 N.E.2d 198), and an appeal from such a dismissal order for failure to state a cause of action preserves for review only a question of law as to the complaint’s legal sufficiency. Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 334,443 N.E.2d 1162.

Plaintiff contends that count I pleads a cause of action based upon a theory of negligent entrustment. He essentially contends that the loaded pellet pistol is an inherently dangerous instrumentality, and, when left on defendants’ premises in a place accessible to a five-year-old who had no experience with any type of firearms, defendants knew or should have known that such person might obtain and misuse the dangerous instrumentality and cause injury to himself or another. Plaintiff cites section 308 of the Restatement (Second), of Torts (1965), which provides:

“Permitting Improper Persons to Use Things or Engage in Activities
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.”

Plaintiff also refers to comment b of section 308, which provides, in pertinent part, that:

“b. The rule stated in this Section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feeble-minded adults.”

Relying on the Illinois cases of Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 117 N.E.2d 883, and Palm v. Ivorson (1905), 117 Ill. App. 535, and authority from other jurisdictions which have upheld an action based on a negligent entrustment theory under somewhat similar circumstances (see, e.g., Kuhns v. Brugger (1957), 390 Pa. 331, 135 A.2d 395), plaintiff maintains count I adequately sets forth the elements needed to state a cause of action.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116), and the existence of a duty must be determined by the courts as a matter of law. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18-19, 440 N.E.2d 96.) The determination of the question of duty, whether the parties stood in such a relationship to one another that the law will impose upon one an obligation of reasonable conduct for the other’s benefit, is an issue of law. (Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 678, 469 N.E.2d 339.) Whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden upon the defendant must be taken into account. Osborne v. Sprowls (1981), 84 Ill. 2d 390, 396-97, 419 N.E.2d 913.

We have found no Illinois authority which has addressed the precise factual situation present here, the liability to third persons of one who keeps a loaded pellet pistol in his home which is alleged to be accessible to his five-year-old grandson who obtains it and injures the plaintiff. However, two dated Illinois Appellate Court opinions have recognized a cause of action against a person who places in the hands of a minor a dangerous instrument or article under such circumstances that he has reason to know that it is likely to produce injury or create an unreasonable risk of harm. See Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 117 N.E.2d 883 (cause of action stated against seller of air rifle to parents of intended user, a minor under age seven); Palm v. Ivorson (1905), 117 Ill. App. 535 (recognizes a cause of action but concludes no recovery against father of 12-year-old who instructed boy in the use of guns); cf. Van Skike v. Zussman (1974), 22 Ill. App. 3d 1039, 318 N.E.2d 244.

There is considerable conflict among the other jurisdictions that have considered the question of the liability of a person either permitting a child to have a gun, or leaving the gun accessible to the child, for injury inflicted by the child on another. (See Annot., 68 A.L.R.2d 782 (1959), and Later Case Service (1984).) As discussed in an annotation, 68 A.L.R.2d 782 (1959), liability for permitting a minor to have a gun or leaving one accessible to him is usually based upon a failure to exercise the required degree of care in regard to a dangerous instrumentality. Prima facie negligence is established by showing that defendant permitted an inexperienced or irresponsible infant to have a dangerous gun or that he left such a gun where he should have foreseen it would come into the hands of such a child. In determining the question of the negligence of one permitting access to a gun, the courts of other jurisdictions have taken into consideration the age of the minor, the type of gun or instrumentality involved, and the place where the gun was kept. See generally, Annot., 68 A.L.R.2d 782 (1959) and Later Case Service (1984).

In the instant case, the allegations of count I set forth that the minor grandson was five years old, that the minor grandson was of a class of persons too young to exercise judgment in the use and control of a pellet pistol, that the defendants placed a loaded pellet pistol in such a place as to be accessible to the reach of their grandson, and that defendants knew or should have known that if the pellet pistol came into the hands of their grandson he might discharge it and injure another minor such as plaintiff. To state a cause of action a complaint must be legally sufficient — it must set forth a legally recognized claim as its avenue of recovery; and it must be factually sufficlent — it must plead facts which bring the claim within the legally recognized cause of action alleged. People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005.

A cause of action is recognized in Illinois against a person who places in the hands of a minor a dangerous instrument, or an article under such circumstances that he has reason to know that the minor is likely to use the article in such a manner as to create an unreasonable risk of harm to others, and who causes a foreseeable injury to another. (Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 117 N.E.2d 883; see Restatement (Second) of Torts sec. 308 (1965).) Similarly, there is a general recognition of authority that a duty in such an action extends beyond the actual placing of the dangerous instrumentality in the hands of the minor and is applicable where such instrumentality is in a place within the reach of young children. See Restatement (Second) of Torts sec. 308 comment b (1965); Annot., 68 A.L.R.2d 782 (1959); Kuhns v. Brugger (1957), 390 Pa. 331, 135 A.2d 395.

Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231, relied on by defendants, is not controlling under the facts pleaded here. In Lance, no duty was found to exist upon the defendants to guard against the risk that a nine-year-old boy who was a guest in their house would swallow a needle. We regard the likelihood of injury under the facts alleged in the instant case as far more foreseeable, and the defendants’ burden of guarding against it not sufficiently great to preclude imposition of a duty here.

Thus, we believe plaintiff has alleged a legally recognized claim of recovery, and has alleged sufficient facts which bring the claim within this cause of action. While we do have some concern about the generality of the allegation that the pellet pistol was “in such a place as to be accessible to the reach” of defendants’ grandson, defendants did not move to make the pleading more definite and certain (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615(a)), and, consequently, we will not require under these circumstances that plaintiff have set out in more detail his evidence. Cf. People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005.

Our recognition that count I states a cause of action founded on a negligent entrustment theory, is not, of course, a determination that defendants were negligent and plaintiff is-entitled to recover. We do not reach the merits of the cause of action at this stage. Nor can we now define the parameters of the accessibility of the pellet pistol to a child for liability to be imposed or under what circumstances a pellet pistol is a dangerous instrumentality. These ultimately will be mixed issues of law and fact which will be decided at a later point in the proceedings. See Alessi v. Alessi (1984), 103 App. Div. 2d 1023, 478 N.Y.S.2d 396; Glean v. Smith (1967), 116 Ga. Ill, 156 S.E.2d 507.

Having concluded count I states a cause of action under a negligent entrustment theory on the facts pleaded, we do not believe plaintiff’s alternate theory of recovery as pleaded in count II states a proper separate action based on the allegation of failure of defendants, as owners of the premises, to warn plaintiff of an unreasonable, dangerous condition on the premises caused by the possession of the pellet pistol by their minor grandson. The liability of a possessor of land to a child as formulated in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, is concerned with a condition of the land (see Restatement (Second) of Torts sec. 339 (1965)), and is inapplicable to the facts pleaded here. Count II was properly dismissed.

As count III sought to set aside a release previously executed by plaintiff’s parents and we assume was dismissed as moot because the trial court found no cause of action existed in counts I and II, we necessarily must reverse the dismissal of count III as we are reinstating count I.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed as it pertains to counts I and III, and affirmed as to count II.

Affirmed in part, reversed in part, and remanded.

STROUSE, J., concurs.

PRESIDING JUSTICE NASH,

dissenting:

I respectfully dissent from the extension of the tort theory of negligent entrustment to the facts alleged in count I of this complaint.

I have no quarrel with the proposition that one who knowingly permits a five-year-old child to use a dangerous instrumentality may be liable for foreseeable injuries to a third party. I am not persuaded, however, that this court should, for the first time in Illinois, recognize a cause of action against the owner of a potentially dangerous object present in his home who simply was unable or failed to prevent a visiting five-year-old child from reaching it.

As noted by the majority, courts in Illinois have recognized a cause of action where a defendant has placed a dangerous instrument in the hands of a minor. (Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 117 N.E.2d 883; Palm v. Ivorson (1905), 117 Ill. App. 535.) There are, however, few cases from any jurisdiction, and none from this State, in which liability is premised merely upon leaving a potentially dangerous object where it could be accessible to the child. See Annot., 12 A.L.R. 812 (1921).

The issue presented has been most fully discussed in Kuhns v. Brugger (1957), 390 Pa. 331, 135 A.2d 395, which is relied upon by the majority here. I find the thoughtful dissent by Justice Bell in that case to express the best view of the question and would follow it. In Kuhns, the court placed a duty of exercising not simply ordinary, but extraordinary care, upon a possessor of a firearm to prevent harm to others. It did not address whether other objects such as knives, medicines or poisonous substances would also require the same degree of care.

In dissent, Justice Bell noted there are always present in any home many dangerous items with which a child may be injured or injure others, and that the standard of care thus imposed upon homeowners was too far-reaching.

Absent factual allegations demonstrating that defendant made the pellet pistol available to his grandson, plaintiff has failed to adequately plead the theory of negligent entrustment. The general allegation that defendant’s pistol was in a place in his home accessible to the child’s reach is insufficient.


author: JUSTICE ROMITI

text:
    PALATINE NATIONAL BANK, Plaintiff-Appellant, v. GUARDIAN TAMPA LIMITED PARTNERSHIP et al., Defendants-Appellees.
    First District (4th Division)
    No. 84—341
    Opinion filed March 7, 1985.

      Robert Keith Larson, of Riordan, Larson, Bruckert & McCambridge, of Chicago, for appellant.
    Jack L. Block and Melanie Gray, both of Sachnoff, Weaver & Rubenstein, Ltd., of Chicago, for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff, Palatine National Bank (Palatine), appeals from an order of the circuit court of Cook County granting the motion of defendant, Guardian Tampa Limited Partnership (Guardian), to dismiss Palatine’s complaint on the ground that there was another action pending between the same parties for the same cause. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(3).

We find no abuse of discretion in the trial court’s order and consequently affirm the dismissal.

On May 17, 1983, Palatine commenced this action by filing its complaint against Guardian, Guardian’s individual general partners, and the law firm of Sachnoff, Schrager, Jones & Weaver, Ltd. (The law firm was subsequently dismissed from this action on grounds not at issue here.) In its complaint Palatine alleged that defendant Robert A. Kole, one of Guardian’s general partners, had assigned to Palatine all his interest in any proceeds due to him under the terms of the partnership agreement governing Guardian. This assignment was made by a collateral assignment dated April 12, 1979, and an absolute assignment dated January 29, 1981. The complaint further alleged that the defendants disputed the right of Palatine to these proceeds. Palatine sought a declaratory judgment affirming the validity of the assignment and Palatine’s right to the proceeds. Palatine also sought discovery of Guardian’s books and records, an accounting of proceeds due Kole, and injunctive relief against the transfer of payments due Kole except by way of payment to Palatine.

On July 27, 1979, defendant Kole had commenced a bankruptcy action in the United States Bankruptcy Court in Chicago. On June 16, 1981, the trustee in bankruptcy commenced an adversary proceeding against Palatine, alleging in its complaint that at the time of the April 1979 collateral assignment Palatine had reasonable cause to know Kole was insolvent and therefore the assignment was a voidable preference under section 550 of the Bankruptcy Act. (11 U.S.C. sec. 550 (1982).) The trustee requested that the transfer be set aside and that Palatine transfer the assignment to the trustee. On January 24, 1983, Judge Frederick J. Hertz, before whom the adversary proceeding was pending, ordered that Guardian be substituted for the trustee in that proceeding. The order also provided that Guardian was granted all the trustee’s rights and powers under the Bankruptcy Act, including the trustee’s power to upset any improper transfer Kole may have made to Palatine.

It was based on these proceedings that the circuit court of Cook County, on October 14, 1983, initially granted the motion to dismiss Palatine’s complaint under section 2 — 619(a)(3). However, the court vacated its order on October 20, 1983, when it was informed by Palatine that the adversary proceeding had been closed by Judge Toles, another bankruptcy judge, on January 31,1983.

The parties subsequently appeared before Judge Hertz on November 1, 1983. At that hearing, Judge Hertz’s clerk advised the court that the adversary proceeding had never been before Judge Toles and the dismissal was a docketing error. Judge Hertz then entered an order stating:

“Judge Toles’ Order which inadvertently dismissed the Adversary proceeding number 81 A 22022 on January 31, 1983 is hereby vacated and is fully reinstated before Judge Hertz.”

Judge Hertz subsequently amended this order to state that the matter was reinstated “as if the matter has been continuously in effect and pending.” Based on all of this additional information the circuit court, on January 13, 1984, granted Guardian’s motion to reinstate the judgment of dismissal.

The statute at issue provides that a defendant may move for an involuntary dismissal or for other appropriate relief when “there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(3).) Palatine first contends that the other cause, the adversary proceeding in bankruptcy, was not pending at the time this action was filed and therefore the order of dismissal was in error. But this argument presupposes that the order of filing of the two suits is a relevant factor when in fact our supreme court has specifically held that this factor is of no significance in applying section 2 — 619(a)(3). (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252, 419 N.E.2d 23, 26.) Furthermore, Palatine’s view of the facts elevates form over substance. The adversary proceeding was filed almost two years before Palatine filed its action. The inadvertent closing of the adversary proceeding was immediately corrected when brought to the attention of the bankruptcy judge to whom it had been assigned, and, at the time the dismissal order at issue here was entered, the adversary proceeding was again a pending matter.

Although apparently conceding that the same parties are involved in both lawsuits, Palatine does contend that the same cause is not involved in both cases. But the same-cause element of the statute is satisfied when both causes are based on substantially the same underlying facts or issues. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428, cert, denied (1965), 381 U.S. 926, 14 L. Ed. 2d 684, 85 S. Ct. 1562.) And the fact that the legal theories for the causes are not identical does not destroy the same-cause element. (Catalano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, 434 N.E.2d 31.) Thus, although Palatine in its complaint sought such varied relief as discovery of Guardian’s assets, an accounting, and certain injunctive relief, it is clear that the fundamental factual issue in that complaint is the validity of Hole’s assignment of his interest in partnership proceeds to Palatine. And, it is the validity of this assignment that also is at the heart of the dispute in the adversary proceeding in bankruptcy. Thus, for purposes of the statute, the same cause was involved in both proceedings.

Palatine also contends that the bankruptcy court lacks jurisdiction to hear the adversary proceeding because, as presently constituted, it involves a dispute between nonparties to the bankruptcy of Kole. Nothing in the record before us suggests that Palatine has raised this issue before the bankruptcy court, and we do not deem it appropriate to speculate on the possible jurisdictional ruling of that court should Palatine decide to raise the issue before it. (International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 444 N.E.2d 736; see Kirchheimer Brothers Co. v. Jewelry Mine, Ltd. (1981), 100 Ill. App. 3d 360, 426 N.E.2d 1110.) Similarly, Palatine’s contention that the relief it seeks in this cause would not be available to it in the bankruptcy court is premature as this argument presupposes that the fundamental dispute between the parties, the validity of Kole’s assignment, will be resolved in Palatine’s favor. Certainly if Palatine were to prevail in a jurisdictional challenge or on the fundamental issue of the validity of the assignment and then were to find itself without a remedy in the bankruptcy court, it would not then be prevented from seeking relief in the Illinois courts, as the dismissal at issue here is not on the merits. International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 444 N.E.2d 736.

The decision to grant or deny the dismissal in this cause was a matter within the sound discretion of the trial court. (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23; Cummings v. Iron Hustler Corp. (1983), 118 Ill. App. 3d 327, 454 N.E.2d 1078.) As we have found no basis for concluding that the trial court abused this discretion, we affirm the dismissal order entered by that court.

The judgment of the trial court is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    JAMES G. POSKOZIM, Plaintiff-Appellant, v. MONNACEP et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 83—1594, 83—2185 cons.
    Opinion filed March 7, 1985.
    Susan E. Loggans & Associates, of Chicago, for appellant.
    Judge & Knight, of Chicago, for appellees Oakton Community College District 535 and Northfield Township High School District 225.
    Baker & McKenzie, of Chicago, for appellee Maine Township High School District 207.
    Hubbard, Hubbard & O’Brien, of Chicago, for appellee Niles Township High School District 219.

      McBreen & McBreen, of Chicago, for appellees Sky Sports, Inc., James Miglore, and Dave Jacobs.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The issue in the instant appeal is whether the plaintiff, James G. Poskozim, who was injured while making his first parachute jump, is precluded from recovery by the exculpatory agreement he executed. The defendants are a joint venture of Maine Township High School District 207, Niles Township High School District 219, Northfield Township High School District 225, and Oakton Community College District 535 (collectively referred by the acronym Monnacep), Sky Sports, Inc., and Dave Jacobs and James Miglore, employees of Sky Sports, Inc. Monnacep offered the sky-diving course as part of an adult education program, Sky Sports, Inc., provided the course, and Jacobs and Miglore did the actual instruction and supervision. All the defendants joined together to file a motion to dismiss the plaintiffs complaint. The trial court found that the exculpatory agreement’s language was “unambiguous and crystal clear” in its intent to exculpate the defendants from liability arising out of the sky-diving class. Accordingly, the trial court granted the defendants’ motion to dismiss. Poskozim now appeals.

On September 6, 1981, Poskozim enrolled in the sky-diving course offered by Monnacep. On September 30 he attended his first class, at which time he was advised by the instructors to bring boots to the next class and if they were suitable for the jump, the instructors would then approve them. On October 3, Poskozim attended his second class, at the conclusion of which he was to make his first parachute jump. During the second class Poskozim read and executed a document entitled “Adult Release and Indemnity Agreement,” which provided as follows:

“In consideration of the permission extended to me by Sky Sports, Inc., to participate in a course of parachuting instruction, parachuting training, flying activities, ground or air operations incidental to parachuting and flying, and for other valuable consideration, hereby acknowledge, I James G. Poskozim of Park Ridge, IL. *** do hereby fully and forever release and discharge the said Sky Sports, Inc., and their employees, servants, stockholders, agents, successors, assigns, and all persons whomsoever directly or indirectly liable, from any and all other claims *** in any way resulting from, personal injuries *** sustained by me, arising out of *** parachute jumps *** or arising out of the ownership, operation, use, maintenance or control of any vehicle *** and meaning and intending to include herein all such personal injuries, conscious suffering, death or property damage resulting from or in any way connected with or arising out of instructions, training, and ground or air operations incidental thereto.”

Poskozim’s boots were then approved by the instructors. Poskozim made the parachute jump, and at the completion of his descent he broke his leg upon impact with the ground.

On appeal Poskozim raises two issues: First, Poskozim argues that the exculpatory agreement is ambiguous and unenforceable; and second, Poskozim argues that the exculpatory agreement, by failing to specifically name Monnacep in its language, does not bar his cause of action against the joint venture. We reject both arguments.

In his first argument, Poskozim alleges that the defendants were negligent in instructing him in the art of parachuting and that the defendants negligently approved the equipment he used. Poskozim asserts that the agreement is ambiguous and unenforceable in that it did not clearly delineate the party’s intentions to exculpate the defendants for their own negligence and that it was not intended to include equipment, i.e., the boots he used in the jump. Poskozim rests this assertion on Diedrich v. Wright (N.D. Ill. 1982), 550 F. Supp. 805. In holding that a sky-diving release did not bar the plaintiff from suing the defendants, the court in Diedrieh reasoned that the terms of the release did not extend to claims arising out of the negligence of the defendants because the specific language of the release indicated that the plaintiff signed the document assuming to release the defendants only for “unforeseen and unforeseeable risks and hazards over which [the defendants have] no control.” (550 F. Supp. 805, 806.) The court held that the foregoing language referred only to those dangers of the sport that are not the result of the negligent acts of the released.

In the case at bar, the agreement has no such limiting language as was contained in Diedrieh. The instant exculpatory agreement specifically sets forth in clear language the range of activities to which it applies and the parties to be included thereunder. Moreover, to construe a release as not including claims predicated on negligence is in essence a release that releases nothing at all and would be meaningless. (See Gross v. Sweet (1979), 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 (dissenting opinion).) Therefore, Poskozim’s reliance on Diedrieh is misplaced, and we concur with the trial court’s finding that the instant exculpatory agreement is unambiguous. Additionally, if there was any misconduct on the part of the defendants in their approval of Poskozim’s use of the boots, such conduct would be characterized as instructional, and the instant exculpatory agreement is explicit in its exculpation of all matters having to do with instructions.

In his second argument, Poskozim argues that even if the exculpatory agreement insulated some of the defendants, the agreement failed to specifically name Monnacep in its language and therefore his cause of action against the joint venture is still valid. In Illinois, exculpatory agreements are not favored by the law and are therefore strictly construed. An agreement protecting one from the consequences of his own negligence must be expressed in clear, explicit and unequivocal language showing that such was the intent of the parties. See Owen v. Vic Tanny’s Enterprises (1964), 48 Ill. App. 2d 344,199 N.E.2d 280; 57 Am. Jur. 2d Negligence secs. 20-31 (1971).

In the case at bar, the language of the exculpatory agreement is clear, explicit and unequivocal in demonstrating the party’s intent to exculpate Monnacep. The agreement specifically excludes “all persons whomsoever directly or indirectly liable” from a well-defined category of claims arising out of activities directly related to the parachute jump. Monnacep was the entity that organized and offered the sky-diving course and is thus clearly a party directly involved in the activities described in the above agreement. Accordingly, the exculpatory agreement is unambiguous in its intent to insulate Monnacep from liability in the instant action.

Based on the foregoing, the trial court’s dismissal of Poskozim’s complaint is affirmed.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


text:
    ALCIDES CORONADO, Plaintiff and Counterdefendant-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee.
    First District (4th Division)
    No. 84—623
    Opinion filed March 7, 1985.
    Rehearing denied April 8, 1985.
    Raymond P. Concannon, Ltd., of Chicago, for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Thomas M. Hamilton, Stephen R. Swofford, and Joshua G. Vincent, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Following an automobile accident, plaintiff/insured filed a demand for arbitration with the American Arbitration Association (AAA) under his uninsured motorist coverage, listing the applicable policy limits as $10,000/$20,000. Defendant/insurance company confirmed the policy limits listed in the demand and made no objection to arbitration. Some 10 months later, plaintiff filed an amended demand for arbitration, asserting retroactive application of an amendment to the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 7 — 203), and listing the applicable policy limits as $15,000/$30,000.

An award was entered in plaintiffs favor in the sum of $13,000 ($15,000 less $2,000 medical payments). Defendant timely requested modification of the award to conform to the contract limits, those set forth in plaintiff’s unamended demand. Based thereon, the arbitrator modified the award to $8,000 ($10,000 less medical payments).

Plaintiff filed for and defendant counterclaimed for declaratory judgments in the circuit court of Cook County, and the parties filed cross-motions for summary judgments. The trial court ordered summary judgment in defendant’s favor, and plaintiff now appeals.

We affirm the decision of the circuit court, affirming the modified arbitration award.

Background

On June 2, 1980, plaintiff, Alcides Coronado, was involved in an automobile accident with an uninsured motorist while driving a vehicle owned by his employer. Plaintiff wrote to his insurer, defendant Fireman’s Fund Insurance Company (Fireman’s), requesting information about the coverage available to him under the policy issued to his employer on January 20, 1979, for a period extending to January 20, 1982. Defendant advised plaintiff that he was eligible for medical payments in the amount of $2,000 and for uninsured motorist coverage in the amount of $10,000/$20,000, the limits set forth in the written policy of insurance.

In April 1981, plaintiff filed a demand for arbitration with the American Arbitration Association (AAA), listing the applicable policy limits as $10,000/$20,000. Nine months later, plaintiff again wrote to defendant, requesting confirmation of the applicable policy limits for his uninsured motorist coverage. In February 1982, defendant again confirmed the applicable policy limits as $10,000/$20,000 and made no objection to arbitration.

In February 1982, after receiving defendant’s second written confirmation of policy limits, plaintiff filed an amended demand for arbitration, listing the applicable policy limits as $15,000/$30,000. The claim proceeded to arbitration, and an award was entered in plaintiff’s favor in the sum of $13,000 ($15,000 less medical payments). Four days after entry of the award, defendant informed the arbitrator that the award was in excess of the stated policy limits and was being returned for modification. Subsequent to correspondence from both parties pertaining to the requested modification, the arbitrator entered an amended award in favor of plaintiff in the amount of $8,000 ($10,000 less medical payments).

Following denial of his application for reinstatement of the original award, plaintiff brought suit for declaratory judgment in the circuit court of Cook County. Defendant counterclaimed for declaratory judgment, and the parties filed cross-motions for summary judgment. The trial court granted defendant’s motion for summary judgment, and plaintiff now appeals.

Opinion

On June 2, 1980, plaintiff was insured by defendant under a policy of insurance issued to his employer on January 20, 1979, extending for a three-year period ending January 20, 1982. At the time this policy was issued, the following provision of the Illinois Insurance Code was in effect:

“Sec. 143a. (1) *** no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 73, par. 755a.

At the time the policy under which plaintiff was insured was issued, the limits for bodily injury or death set forth in section 7 — 203 of the Illinois Vehicle Code were $10,000/$20,000. (Ill. Rev. Stat. 1979, ch. 951/2, par. 7 — 203.) Section 7 — 203 was amended, effective March 1, 1980, to increase the statutory limits for uninsured motorist coverage to $15,000/$30,000. (Ill. Rev. Stat. 1981, ch. 951/2, par. 7 — 203.) On appeal, plaintiff contends that the 1980 amendment to the Illinois Motor Vehicle Code applies retroactively to increase the stated policy limits set forth in defendant’s written contract of insurance. For the following reasons, we find no merit in this contention.

First, the plain language of section 143a, which incorporates by reference section 7 — 203, makes clear that the limits stated in section 7 — 203 apply at the time a policy is “renewed or delivered or issued for delivery.” (Ill. Rev. Stat. 1981, ch. 73, par. 755a.) At the occurrence of one of these events, and one of these events only, the then extant version of section 7 — 203 is looked to for the purpose of controlling policy limits. Whatever version of the statute is in force at the time one of these events occurs determines any questions, including those of applicable limits, arising under the policy provisions. (Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 362 N.E.2d 1355.) The limits in effect at delivery or issuance for delivery would then remain in effect until such time as the policy is renewed. If, between the time of the original issuance and the time of renewal, a statutory change takes place such as to bring the written contract into conflict with the statute, the amended statute would of course affect and control the terms of the renewed contract. Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 362 N.E.2d 1355.

In the instant case, the contract was issued in 1979 and was not due to expire until 1982. The statute in force at the time the contract of insurance was issued set forth the limits for uninsured motorist coverage as $10,000/$20,000. The statutory change occurred in March 1980, after the time of issuance and prior to the contract’s expiration date. When the period of coverage ended on January 30, 1982, the March 1980 amendment had an effect on the terms of any future contract. However, prior to the time for renewal, absent certain express statutory language, the contract here was governed by the written contract terms in conformance with the statute in force at the time of issuance.

As mentioned above, the inclusion of certain express language in the statute may present an exception to the general rule that statutes which are in force at the time a contract is issued are controlling throughout the term of the contract. Such an exception is present where a statute contains express language declaring an amendatory act to be retroactive. (General Motors Corp., Fisher Body Division v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) A legislative enactment cannot, however, be given retroactive effect in the absence of a clear expression of legislative intent to do so. (General Motors Corf., Fisher Body Division v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) Thus, the second reason why plaintiff’s contention of retroactive application of section 7 — 203, as amended, must fail is that the statute contains no express language setting forth the legislature’s unequivocal intention that the amendatory change be applied retroactively. Absent such clear expression of intent and in light of the plain language of the statute, we find no merit in plaintiff’s assertion of retroactive application.

Plaintiff next contends on appeal that defendant’s failure to comply with Rule 4 of the Accident Claims Arbitration Rules constitutes waiver and estoppel under Rule 24, preventing defendant from contesting the increased policy limits. Our construction of Rule 4, which reads in pertinent part as follows, does not support plaintiff’s assertion:

“The AAA will acknowledge receipts of the Demand to all parties. The insurer(s) shall have twenty calendar days within which to affirmatively deny coverage or AAA jurisdiction under the policy. If no such procedure is initiated, it will be assumed that there is no objection to arbitration and that the claim is denied. Where the insurer moves in court to contest coverage, administration will be suspended until that issue is determined. Arbitrators may only decide contested issues of coverage where ordered to do so by a court, or where authorized by law, or where both parties so agree in writing.”

Rule 24, upon which plaintiff relies for his assertion of waiver, states as follows:

“Waiver of Rules
Any party who proceeds with the arbitration after knowledge that any provision or requirement of these Rules hás not been complied with and who fails to state objection thereto in writing shall be deemed to have waived the right to object.”

The 20-day limitation contained in Rule 4 only applies where the insurer affirmatively denies coverage or AAA jurisdiction under the policy. Defendant here maintains that the written policy limits and the statute in force at the time the policy of insurance was issued govern the limits of the arbitration award. This position constitutes neither a denial of coverage nor of AAA jurisdiction. For this reason, the 20-day limitation set forth in Rule 4 of the Accident Claim Arbitration Rules did not apply to defendant. The assumption that automatically followed defendant’s failure to act under Rule 4, that there was no objection to arbitration and that the claim was denied, was entirely proper.

In light of the fact that Rule 4 need not have been complied with by defendant, plaintiff’s assertion of waiver and estoppel, based on defendant’s failure to comply with the 20-day requirement of Rule 4, must correspondingly fail.

Where the waiver argument based on Rule 4 does not fail, however, is where it is asserted by defendant in response to plaintiff’s contention that the arbitrators were without jurisdiction to decide contested issues of coverage, i.e., the policy limits applicable to plaintiff’s demand. Rule 4 states that arbitrators may decide contested issues of coverage where both parties so agree in writing. Here, the record reveals that defendant made written request to the AAA for modification of the arbitration award and that plaintiff thereto replied prior to the entry of the modified award. Such reply by plaintiff absent a motion to stay the modification of the award or an objection to the arbitrator’s decision as to the applicable policy limits suggests that plaintiff agreed to have the arbitrators decide this issue. Such agreement is further supported by the written correspondence between plaintiff and the AAA, which includes plaintiff’s suggestion that defendant “follow the mandate of the Arbitration Act in its attempt to modify or correct the award.” Moreover, because the insurer never “moved in court to contest coverage,” it is questionable whether the request for modification of the arbitration award even falls within the purview of “contested issues of coverage” such as to necessitate one of the prerequisites for jurisdiction set forth in Rule 4.

We therefore find that plaintiff has waived his right to contest the propriety of the AAA’s deciding the issue of policy limits. Similarly, plaintiff’s objection to the manner in which defendant applied for modification is also waived.

For the reasons stated above, we affirm the trial court’s decision, granting summary judgment in favor of defendant.

Affirmed.

JOHNSON and ROMITI, JJ., concur.