text:
    DON MILLER et al., Plaintiff-Appellee and Cross-Appellants, v. BOARD OF EDUCATION, DISTRICT 189, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 81—682
    Opinion filed September 12, 1983.

      Edward Neville, of East St. Louis, for appellant.
    Charles J. Kolker, of Belleville, for appellees.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Defendant, the Board of Education of District 189, appeals from a judgment against it in the amount of $107,887.96 entered by the circuit court of St. Clair County in a contract action brought by teachers of the district. For the reasons hereinafter set forth, we affirm in part, reverse in part and remand.

Plaintiffs originally filed suit on August 29, 1969. The complaint consisted of 396 separate counts, one for each teacher in the district. The plaintiffs made claims for salary shortages which occurred over a period of years beginning with the fall of 1959 and ending with the 1966-67 school year.

On defendant’s motion, the original complaint was dismissed in 1972 for failure to attach a written contract. Plaintiffs immediately filed an amended complaint, adopting their previous complaint and attaching an affidavit which stated the reason for their failure to include the contract. The affidavit explained that the contract between the board and the teachers was based on the minutes and resolutions of board meetings which occurred during the years in question. It stated that the defendant alone had access to these minutes and, thus, plaintiffs were unable to attach them to the complaint. Defendant moved to dismiss on the same grounds as before.

There was very little activity in the case during the next six or seven years. Discovery proceeded at a slow pace and included various motions to produce submitted by plaintiffs and a request for admission of facts and genuineness of documents, also submitted by plaintiffs. Defendant did not respond to these requests and ignored interrogatories propounded during this period.

Then, late in 1979, the activity accelerated. In August a hearing was held at which the court denied defendant’s motion to dismiss on statute of limitations grounds and denied plaintiffs’ motion to proceed as a class action. However, it granted defendant’s motion to dismiss based on laches, thus dismissing all claims arising between the fall of 1959 through the spring of 1963. On May 14, 1980, the court entered an order denying plaintiffs’ motion to strike defendant’s pleadings and for judgment of default against defendant. Plaintiffs had so moved because of defendant’s conduct with regard to discovery.

Several pretrial conferences took place in the ensuing months. On October 6 the plaintiffs submitted request for admission of facts and genuineness of documents. At a pretrial conference in October, the trial judge informed the parties that all remaining plaintiffs who intended to proceed with their cause of action would have to appear at a hearing on June 15, 1981, for roll call. On June 29, when 171 plaintiffs had failed to appear for the “show-up” conference, the judge entered an order dismissing their claims.

After these dismissals and the dismissals based on laches, a total of 96 plaintiffs remained to proceed with the cause of action.

In the interim, on June 15 and again on June 22, 1981, plaintiffs presented two additional requests for admission of facts and genuineness of documents. The defendant did not respond to these. At a hearing on July 14, 1981, the plaintiffs were granted leave to file an amended complaint. Defendant’s motion to dismiss was denied and a hearing date was set for the existing plaintiffs. Also at this time, the trial court granted the plaintiffs’ motion for sanctions against the school board for failing to respond to discovery attempts. However, it set aside the $200 fine in return for the board’s guarantee of future cooperation.

On August 3, 1981, a hearing was to be had on the merits. As the proceedings began, plaintiffs moved for summary judgment. They based their motion on exhibits which had been included in their discovery requests. Plaintiffs maintained that the exhibits constituted admissions by defendant because defendant failed to deny their truth or authenticity in pretrial discovery. Plaintiffs claimed that, from these exhibits, it was apparent that the base salary which was agreed to between the board and the teachers was not the base salary which was actually paid to them. The court construed the motion for summary judgment as a motion for directed verdict and entered a directed verdict for the teachers in the amount of $106,635. Plaintiffs’ motion for interest and further sanctions was denied, as was a motion to reinstate the 171 plaintiffs who had been dismissed in the “no-show” order. However, the judge did give defendant five days to produce documentation which would disprove plaintiffs’ contentions.

The hearing was continued on August 12, 1981. The defendant produced payroll records for 19 teachers and a handwritten survey sheet which it said proved that the amounts actually paid to the teachers were different than the amounts which were indicated on the personal history sheets. Essentially, defendant hoped to discredit the figures relied upon by plaintiffs by presenting conflicting figures for the same pay period. The court ordered the plaintiffs to file affidavits concerning the 19 teachers listed in defendant’s survey. It allowed defendant time to respond to plaintiffs’ affidavits, but made it clear that its final rulings as to these 19 plaintiffs would be the basis for its ruling on all 96 plaintiffs. On the 14th day of September, plaintiffs submitted detailed affidavits regarding the 19 teachers. In these affidavits the teachers set forth their level on the salary schedule, the base salary actually paid them, and the other monies they received for performing such duties as coaching, playground monitoring, etc. Defendant introduced counteraffidavits of the personnel director, one for each of the 19 teachers, which were supposed to dispute plaintiffs’ figures. The hearing resumed on October 28 at which time the parties explained their positions. In an order entered on November 25, the court decided in favor of plaintiffs and set the amount of recovery, according to computation sheets submitted by plaintiffs’ attorney, at $107,887.96.

On December 18, 1981, defendant filed its notice of appeal. The plaintiffs then cross-appealed.

On appeal, the school board has presented two issues for review. The first of these is whether the court erred in granting a motion for directed verdict based upon a motion for summary judgment. The second issue, closely related, is whether the court erred in allowing evidence by affidavit in lieu of plaintiffs’ appearance at trial.

At the hearing on August 3, 1981, the plaintiffs moved for summary judgment based on information contained in four exhibits which they deemed admissions by defendant. Exhibit No. 1 consisted of copies of minutes and resolutions of board meetings which occurred during the years in question. Plaintiffs did not include minutes of all the board meetings, of course, but only minutes of those meetings which contained the final negotiations and formal approval of contract terms and salary schedules. These minutes submitted by plaintiffs constitute the record of the contract between the teachers and the school board, and it is these on which the trial judge relied. As plaintiffs argued, the figures contained in the salary schedules therein represent the base salary figures bargained for and agreed to by the parties, i.e., the salary they should have received.

Exhibit No. 3 consisted of personal history sheets kept by the school district, one for every plaintiff. Each sheet contained data about the teacher which would be relevant to the district’s administration, including the teacher’s level of education and years of teaching experience. Most significantly, the history sheets were updated yearly by noting in a special column the new base salary for the teacher and any salary increases he or she received. Plaintiffs claim that this column of figures represents the amount they actually received from the school district.

Exhibits Nos. 2 and 4, salary schedules and a copy of their July 22, 1981, request to admit the genuineness of documents and facts therein, merely served as further confirmation of exhibits Nos. 1 and 3.

Both of these critical exhibits (the personal history sheets and the board meeting minutes), were included in various discovery requests made to the board by plaintiffs, entitled requests for genuineness of documents and admission of facts. Defendant’s failure to respond to these requests, thus, constitutes admissions for purposes of a motion for summary judgment. Nothing subsequently offered by defendant disproved the material facts relied on by plaintiffs in these exhibits. The minutes which were offered as exhibits by defendant were from meetings which took place early in the spring of each year. These contained the year’s salary schedule and a proposed salary schedule for the upcoming term. In the springtime, however, negotiations were still in progress. The possibility of salary increases and other contract adjustments were discussed for several months thereafter. Accordingly, nothing in the minutes from these spring sessions may be construed as a final agreement between the board and the teachers. Defendant’s introduction of them to contradict the facts contained in plaintiffs’ exhibits did not succeed. Likewise, the affidavits made by the district’s personnel director only served to confirm the teachers’ salary amounts after extras were added. Plaintiffs demonstrated by their own affidavits exactly how the district arrived at its total amount: by adding base salary plus monies received for duties such as coaching or summer school teaching. The defendant, therefore, presented nothing to contradict the base salary figures offered by plaintiffs. Since the court had before it the salary amount agreed to by the parties and the base amount actually received by the teachers — the latter always less, a judgment in their favor was correct. Our extensive examination of the record convinced us that, indeed, the teachers did receive less than the amount due them for the years in question. Thus, in our view, the instant case would have been most efficiently disposed of by granting plaintiffs’ motion for summary judgment. Finding that no genuine issues of fact remained after the October 28 hearing and that plaintiffs were entitled to judgment as a matter of law, entry of summary judgment in their favor would have been proper. A court of review can affirm the judgment of a trial court if it is correct, even if the trial court’s reason for the judgment was incorrect. (U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 919, 410 N.E.2d 286.) Since the court achieved the proper result here, we will affirm its decision although it was based on a construction of the motion as one for directed verdict.

In so holding, we have essentially disposed of defendant’s second issue as well. In a motion for summary judgment, the court must render judgment for the moving party if the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) At this stage in the proceeding, it was proper for the court to rely on affidavits rather than insisting that the numerous parties testify personally. We have very carefully reviewed the affidavits submitted. In comparing them to the documents already on file, it is plain that they confirm the point originally made by plaintiffs, i.e., that the base salary paid to the teachers for the years in question was less than the amount the teachers had agreed to at the beginning of each year. Additional testimony on this point was unnecessary. Thus we find defendant’s second contention is also without merit.

Plaintiffs’ cross-appeal contained six issues for our consideration. Of those, three dealt directly with the imposition of sanctions on defendant for its refusal to cooperate in discovery. In the orders dated May 14, 1980, March 24, 1981, and October 28, 1981, the trial court refused to grant plaintiffs’ motions for sanctions. Plaintiffs now seek to have these rulings reversed. They also argue that a prejudgment interest award is an appropriate sanction to impose under the circumstances of this case.

The imposition of sanctions for abuse of discovery rules and court orders is a matter within the trial judge’s discretion. (Carlson v. General Motors Corp. (1972), 9 Ill. App. 3d 806, 619, 289 N.E.2d 439, 449.) A ruling will not be overturned absent an abuse of that discretion. The record here indicates that the defendant did not fully cooperate with the plaintiffs during the 14-year span of this suit. However, it also indicates that plaintiffs have not been “doggedly persistent” (as they tried to characterize their discovery efforts). On at least two occasions, an entire year went by in which the court record reflected no activity by either party. For this reason, we do not feel that the trial judge’s refusal to sanction defendant constituted an abuse of his discretion.

Plaintiffs also seek a prejudgment interest award on the basis of interest owed on a written instrument. They argue that the contract between the teachers and the board was an “instrument of writing” within the meaning of section 2 of the Interest Act, and thus qualified them to receive prejudgment interest. (Ill. Rev. Stat. 1979, ch. 74, par. 2.) This provision was discussed recently in the case Cushman & Wakefield Illinois, Inc. v. Northbrook 500 Limited Partnership (1983), 112 Ill. App. 3d 951, 445 N.E.2d 1313. There the court said that “[a]bsent an express agreement between the parties, allowance of prejudgment interest is permitted by statute (Ill. Rev. Stat. 1979, ch. 74, par. 2) if the amount is a fixed amount or easily computed.” (Cushman & Wakefield Illinois, Inc. v. Northbrook 500 Limited Partnership (1983), 112 Ill. App. 3d 951, 963.) Thus, even if we adopted the argument that the contract as it existed in this case was the type of “instrument” contemplated by drafters of section 2 of the Interest Act, plaintiffs still have not met the second part of the requirement set out in Cushman, i.e., that the amount be fixed or easily computed. In this case, it was neither. There were over 90 plaintiffs, each with a different amount recovered and each with a claim for a different number of school years. The maze of computations which the court had to follow in order to come to the total amount recoverable by each plaintiff was quite circuitous. The trial judge evidently felt that an additional interest computation for each plaintiff could not be done easily. We agree. We see no abuse of discretion in this decision.

The fifth issue raised by plaintiffs in their cross-appeal is whether the trial court erred in dismissing the plaintiffs who did not appear at a “show-up” conference held on June 15,1981.

The trial court had authority to enter such an order pursuant to Supreme Court Rule 218 and Supreme Court Rule 219. (87 Ill. 2d Rules 218, 219.) According to Rule 218(a)(5), the trial judge may conduct pretrial conferences to consider any matter “which may aid in the disposition of the action.” (87 Ill. 2d R. 218(a)(5).) The provision further states that authorized counsel must appear “with or without parties as the court directs.” 87 Ill. 2d R. 218(a).

The record shows that on October 6, 1980, the trial judge informed attorneys for both parties that a pretrial conference would be held in June of 1981. The purpose of this conference was to ascertain the exact number of plaintiffs who still wished to proceed with the prosecution of their claims. Over, the years, many teachers had moved out of the district or out of the State, and some had died. For an orderly administration of this cause, it was incumbent upon the court to determine who the plaintiffs were actually going to be. The judge allowed the plaintiffs eight months to make arrangements to appear at the conference or, in the alternative, to contact the court and explain the reason they were unable to attend. On June 15, 1981, the hearing was held as scheduled and the trial judge entered an order dismissing the unaccounted-for plaintiffs. The judge’s order dismissing those who did not contact the court was authorized by Rule 218(d) (87 Ill. 2d R. 218(d)), which refers to remedies provided in Rule 219. Paragraph (c) of Rule 219 says that if a party unreasonably refuses to comply with any order entered pursuant to Rules 201 through 218, the court may enter “such orders as are just, including, among others, the following: *** (iii) that [the offending party] be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relatingto that issue.” 87 Ill. 2d R. 219(c).

In our view, eight months is a sufficient amount of time to allow parties to either arrange to appear or to arrange an explanation for their absence. It would be unreasonable for teachers who intended to proceed as plaintiffs in this cause to have failed to do one or the other of these. Thus, the trial court did not err in ordering their dismissal.

The final issue on cross-appeal is whether it was error for the court to dismiss certain claims on the basis of laches. Plaintiffs first argue that laches, as an affirmative defense, should have been raised in the pleadings and that since it was not, the defendant has forever waived it. This is not entirely accurate. Although laches is an affirmative defense, it may be raised in pretrial motions such as motions for summary judgment or motions to dismiss if the facts on which it is based are evident on the face of the complaint or in the affidavits submitted with the motions. Beckham v. Tate (1978), 61 Ill. App. 3d 765, 768, 378 N.E.2d 588, 590.

Plaintiffs also argue that because laches is an equitable doctrine, it should not have been applied to a breach of contract action. We need not resolve this question, however, because we find that no bases for laches existed in this suit and thus the doctrine even if applicable was improperly invoked.

As the supreme court noted in DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413, laches is not simply a matter of delay or passage of time. A person seeking to invoke this equitable defense must show that he was prejudiced and misled by the delay or that it “ '*** caused him to pursue a course different from what he would otherwise have taken.’ ” (DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 136, 418 N.E.2d 413, 417.) The rationale behind this is that as soon as possible, a defendant should be informed that his conduct is injurious so that he can alter his behavior or rectify the error to plaintiffs satisfaction. However, judging from the posture the school board has taken throughout this litigation, it is unlikely that such a transformation would have taken place. In short, we find nothing in the record before us to indicate that the board’s conduct during the years 1963-67 would have been any different than it was throughout 1959-63. Nor was there any evidence that the board was prejudiced by the plaintiffs’ 1969 filing.

Thus, although we realize that the trial court has been diligent in its efforts to bring this case to fruition, we are compelled to remand it on this last issue. We hold that the defense of laches was unavailable to defendant. Consequently, those claims which were dismissed at the August 29, 1979, hearing on the grounds of laches are hereby reinstated, and the cause remanded for further proceedings. The trial court is affirmed on all other points.

Affirmed in part, reversed in part and remanded.

WELCH and JONES, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL JUSTICE McGLOON,

license: Public Domain

text:
    SANDRA VIRZINT, Plaintiff-Appellee, v. ROBERT BERANEK, Defendant-Appellant.
    First District (1st Division)
    Nos. 82—43, 82—1760 cons.
    Opinion filed October 24, 1983.

      McGLOON, J., dissenting.
    Patrick A. Tuite and David S. Mejia, both of Chicago, for appellant.
    Gerald M. Sachs & Associates, of Chicago (Roger H. Williams, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant appeals from a jury verdict finding him to be the father of the plaintiff’s child. This issue was previously before this court in Virzint v. Beranek (1980), 85 Ill. App. 3d 919, 407 N.E.2d 701, but we held that there was no final and appealable order because the issue of support had not been determined in the trial court. On remand to the trial court, orders were entered against the defendant for support and maintenance along with attorney fees. Defendant now raises the following issues: (1) whether the finding of paternity was against the manifest weight of the evidence; and (2) whether the trial court erred first, in permitting testimony alleged to contradict facts adduced in the verified complaint, and second, in denying defendant’s request to impeach the plaintiff on the alleged prior inconsistent statement.

The record discloses that plaintiff, age 17, first met the defendant, age 36, in 1974 when she sought his representation in her personal injury case. The plaintiff was referred to the defendant, an attorney, by Joseph Fass, a friend of the plaintiff’s mother. According to the plaintiff, she dated the defendant frequently over an 11-month period and had intercourse with him on numerous occasions during that time. She testified that when she told the defendant about the pregnancy he began to give her money by placing weekly amounts in his mailbox for her to pick up. She received approximately $450 from the defendant during her pregnancy. Jimmy Efrimidis, plaintiff’s friend, testified that he accompanied the plaintiff on one occasion to retrieve money from the mailbox.

Plaintiff’s sister, Renee DeCarlo, and her husband, William De-Carlo, each testified that they went to the defendant’s home in October 1976 to discuss the plaintiff’s pregnancy with the defendant. They, along with the plaintiff’s mother, said that the defendant admitted being the father of the plaintiff’s child.

Joseph Fass testified that the defendant had asked for his permission to date the plaintiff and that the defendant later admitted to Fass that he was dating the plaintiff. Cathleen Damato, plaintiff’s coworker, testified that while working one evening in the coffee shop at Condesa del Mar, she saw the plaintiff and the defendant together and was introduced to him by the plaintiff at that time.

After having been called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), the defendant stated unequivocally that his only contact with the plaintiff was in his representation of her personal injury case. The defendant denied ever having sexual relations with the plaintiff or ever giving her money. He also stated that the DeCarlos had come to his home, but that he never admitted being the father of the plaintiff’s child to the DeCarlos or to the plaintiff’s mother.

Defendant argues that the evidence adduced at trial was insufficient to support a finding of paternity against him. He cites two alleged inconsistencies in the plaintiff’s testimony, as compared to her deposition. First, the defendant argues that at trial the plaintiff changed the date she gave at her deposition as to when she began having sexual intercourse with the defendant. Defendant also argues that the plaintiff changed the facts at trial by testifying that she was not always alone when retrieving money from the defendant’s mailbox. Defendant also contends that the plaintiff’s testimony was not corroborated since all the plaintiff’s witnesses were family or friends of the plaintiff.

Generally, in a paternity action, the burden is on the mother to establish paternity by a preponderance of the evidence. (People ex rel. Mathis v. Brown (1976), 44 Ill. App. 3d 783, 358 N.E.2d 1160.) Both the plaintiff and the defendant are competent witnesses in a paternity action (People ex rel. Wider v. Johnson (1975), 26 Ill. App. 3d 192, 324 N.E.2d 723), and the testimony of the plaintiff, if believed, is sufficient to support a finding of paternity. (People ex rel. Gerard v. Wilson (1974), 22 Ill. App. 3d 331, 312 N.E.2d 170.) In such actions it is the trier of fact who is present to weigh the evidence and consider the credibility of the witnesses and the determination of the trier of fact will not be reversed on appeal unless found to be against the manifest weight of the evidence. Watkins v. Martin (1983), 115 Ill. App. 3d 417, 450 N.E.2d 866.

After reviewing the record, we conclude that there is ample support for the jury’s verdict and the trial court’s finding of paternity against the defendant. Plaintiff’s testimony that she dated the defendant between September 1975 and August 1976 was corroborated at trial by witnesses Damato and Fass. Therefore, defendant’s contention that the plaintiff changed her testimony regarding the dating period, to fit within the gestation period, is not supported by the evidence in the record. Furthermore, defendant’s argument that the plaintiff changed her testimony at trial to “fit her purpose” by producing Efrimidis as a witness, is contradicted by the record. The record shows that the plaintiff filed an affidavit to correct her deposition and disclose Efrimidis as a witness shortly after her deposition was taken. Finally, defendant’s contention that the plaintiff’s testimony was not corroborated questions the credibility of the witnesses, a determination for the trier of fact. Here there was simply a conflict between the testimony of plaintiff and defendant, and the resolution of such conflicting testimony is determined by the trier of fact. Watkins v. Martin; People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.

Defendant next contends that the trial court committed reversible error by admitting testimony into evidence which allegedly contradicted the plaintiff’s verified complaint and by refusing to permit the defendant to impeach the plaintiff on that testimony. The defendant maintains that paragraph 7 of the plaintiff’s verified complaint, which states in part: “That the Defendant *** agreed to support and maintain the Plaintiff during her pregnancy and thereafter, but has failed to do so,” is contradictory to testimony that she received weekly sums of money from the defendant. Plaintiff argues that the statements are not inconsistent. The verified complaint does not state that the plaintiff received no money from the defendant, but that the defendant failed to “support and maintain the plaintiff during her pregnancy and thereafter.” Plaintiff testified that she received approximately $450 from the defendant during her pregnancy but received no money after the child was born.

We do not agree that the allowance of plaintiff’s testimony as to the periodic receipts of the sum totaling approximately $450, coupled with the allegation in the verified complaint that defendant failed to keep a promise to pay support, deprived defendant of his efforts to impeach plaintiff by way of a prior inconsistent statement. We do not agree that the allegation in the complaint and the testimony of the receipt of approximately $450 necessarily results in any inconsistency or contradiction in this action. Defendant seems to view the matter of support as a paramount issue in this case. The trial court may well have felt that the line of questions regarding the periodic payments was inappropriate under the circumstances in view of the fact that the primary and decisive issue to be determined was the issue of paternity, and not whether defendant had promised to support plaintiff during her pregnancy and prior to a finding of paternity. The issue of paternity and the fixed amount of support money that defendant was to pay was the final determination by the trial court of the ultimate rights of the parties put in issue by the complaint. (See Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert, denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.) It follows that paternity cannot properly be made to depend on whether defendant did or did not promise to support, or whether plaintiff did not in fact receive support.

We therefore reject defendant’s contention that the scope of cross-examination for impeachment purposes was limited and denied defendant a fair determination of the evidence. The scope of cross-examination lies within the sound discretion of the trial court, and this court will not disturb the exercise of that discretion unless there has been an abuse of discretion. (People v. Bryant (1983), 115 Ill. App. 3d 215, 450 N.E.2d 744; People ex rel. Holland v. DeMichael (1979), 79 Ill. App. 3d 974.) We do not find an abuse of discretion here nor that the trial court improperly limited cross-examination.

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

Judgment affirmed.

BUCKLEY, P.J., concurs.

JUSTICE McGLOON,

dissenting:

I respectfully dissent from my colleagues’ opinion for two reasons. First, I believe that defendant should have been allowed to impeach plaintiff at trial with inconsistent statements made in her verified complaint. Second, the trial court should have ordered plaintiff, defendant, and the child to submit to blood tests, including the Human Leucocyte Antigen test pursuant to the Act on Blood Tests to Determine Paternity. Ill. Rev. Stat. 1981, ch. 40, pars. 1401 through 1407.

Very recently, this court held that admissions contained in original verified pleadings remain binding and conclusive on the pleader despite subsequent inconsistent amendments. (American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 452 N.E.2d 3.) Earlier Illinois cases establish that formal admissions in pleadings are judicial admissions conclusive on the pleader, which have the effect of withdrawing a fact from issue. (Gagne v. Village of LaGrange (1976), 36 Ill. App. 3d 864, 345 N.E.2d 108.) The binding nature of such admissions is not altered by later inconsistent assertions. (Gagne.) Moreover, inconsistent statements contained in an original verified pleading may be used to impeach a party who takes the stand. People ex rel. Mullin v. Williams (1957), 13 Ill. App. 2d 164, 141 N.E.2d 645.

In the instant case, the complaint filed by plaintiff contained her unequivocal statement that she did not receive support from defendant during her pregnancy. It was sworn to and was signed twice by plaintiff. However, at trial, plaintiff testified that on a number of occasions during her pregnancy, defendant left money in a mailbox for her. The money, plaintiff testified, was intended to support her during pregnancy. This evidence, which directly contradicts the sworn statements contained in plaintiffs verified complaint, was allowed to be introduced at trial. Defendant’s attempt to impeach plaintiff by use of her verified complaint was not allowed. Demonstrating the incredibility of a "witness, including a party to an action, by the introduction of an inconsistent statement is a fundamental right firmly established in our case law. Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 222 N.E.2d 468.

The facts in the present case are largely, if not entirely, within the plaintiff’s knowledge. Here, as in Petru v. Petru (1954), 4 Ill. App. 2d 1, 123 N.E.2d 352, it must be assumed that plaintiff knew what she was doing when she swore to the truth of the statements contained in her complaint. I must conclude, as did the court in Petru, that plaintiff’s abandonment of the charge contained in the body of her verified complaint impaired her credibility. Defendant should have been allowed to bring this fact to the attention of the jury. The trial court’s ruling denied defendant such an opportunity and constituted reversible error. For these reasons, I would reverse and remand the cause for further proceedings.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MILTON C. JACOBSON, Defendant-Appellant.
    First District (1st Division)
    No. 82 — 2403
    Opinion filed October 31, 1983.
    Steven M. Sandler, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Maria Elena Gonzalez, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Milton C. Jacobson, appeals from an order of the circuit court of Cook County denying his motion to quash a subpoena du-ces tecum and an order adjudging him in contempt of court.

On appeal, defendant contends that the trial court erred in denying his motion to quash the subpoena which requested production of documents protected by the attorney-client privilege.

We reverse and remand.

Our review of the record discloses the following facts. Denise Morales, Hugo Novales and Martha Novales were attacked by three offenders while attending a rock concert. The offenders were subsequently indicted on criminal charges. Defendant, a licensed attorney, was retained by Morales and the Novales to represent them in a civil action against various owners of the rock concert site. In preparation of the civil suit, defendant had conversations with his clients concerning the facts upon which their civil action was based. It is undisputed that these conversations were privileged communications protected by the attorney-client privilege. Furthermore, each client testified that he or she did not want to waive their privilege.

The three offenders filed a motion for discovery seeking copies of the statements made by Morales and the Novales to their attorney. Thereafter, the State subpoenaed defendant’s records concerning his conversations with his clients. Defendant filed a motion to quash the subpoena duces tecum alleging that the communications were privileged.

Following a hearing, the trial court determined that the documents subject to the subpoena were protected by the attorney-client privilege. However, the court denied defendant’s motion and ordered an in camera inspection of the documents. The inspection, the court stated, would be conducted in order to determine whether the documents contained information material to the offenders’ criminal defense which might be discoverable under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. (In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to an accused’s defense.) Defendant refused to tender the documents to the court and was found in contempt and fined.

Defendant contends that privileged communications between an attorney and his client are not subject to review by a trial court in a separate criminal proceeding.

The policy underlying the attorney-client privilege is to encourage full and frank consultation between a client and his attorney by removing the fear of compelled disclosure of information. (People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205.) Strict confidentiality, promoted by permanent protection from disclosure, is the very essence of the existence of the attorney-client privilege. It is also the basis for allowing such communications complete exemption from discovery. Shere v. Marshall Field & Co. (1974), 26 Ill. App. 3d 728, 327 N.E.2d 92.

In Illinois, as in most jurisdictions, the attorney-client privilege is codified:

“Privilege and Work Product. All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney. The court may apportion the cost involved in originally securing the discoverable material, including when appropriate a reasonable attorney’s fee, in such manner as is just.” 87 Ill. 2d R. 201(b)(2).

Case law, as codified by our statute, therefore establishes that privileged communications are at the instance of the client permanently protected from discovery. If a client is called as a witness he need not be a party to the action in order to invoke the protection of the privilege. An attorney must be afforded similar protection. Otherwise, the policy of the privilege would be destroyed.

The State contends that the offenders’ sixth and fourteenth amendment rights to confront one’s accusers should take precedence over defendant’s right to prohibit the disclosure of their confidential conversations with their attorney. We disagree. People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E.2d 332.

In denying defendant’s motion, the trial court found that where an accused’s constitutional rights conflict with the traditional right of the attorney-client privilege, the court should be allowed to review the materials subject to the subpoena to determine whether any of that material meets the requirement of disclosure. Under Brady, however, the communications sought to be disclosed were not clothed with the protection of the attorney-client privilege. It is undisputed that the documents and records which the State seeks to discover in the instant case are protected by the attorney-client privilege. Moreover, in Brady the evidence which the criminal defendant attempted to discover was in the possession of the State. The instant case is further distinguishable in that the criminal offenders seek to discover documents in the possession of an attorney who is not a party. Accordingly, we find that defendant was justified in refusing to tender the privileged materials. Under the circumstances of the present case, to compel an attorney to disclose privileged communications upon threat of contempt would defeat the policy of the privilege.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand the cause for further proceedings.

Order reversed; cause remanded.

GOLDBERG and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    JUDITH KNIFFIN, Plaintiff-Appellant, v. ANDREW JOHN KNIFFIN, Defendant-Appellee.
    First District (1st Division)
    No. 82—2847
    Opinion filed November 7, 1983.

      Lee Poteracki and Randy G. Black, both of McLennon, Nelson & Nudo, of Chicago, for appellant.
    Gerald W. Shea, Ira A. Rogal, and Jeffrey I. Kleifield, all of Shea, Rogal & Associates, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises out of an action brought by the plaintiff, Judith Kniffin, wife of Andrew William Kniffin, deceased, to enjoin payment of the proceeds of a life insurance policy issued on her husband’s life to the defendant, Andrew John Kniffin, the insured’s father and designated beneficiary. Plaintiff alleged that she was entitled to the proceeds rather than defendant. Defendant filed a motion for summary judgment alleging there existed no issue as to any material fact. The trial court entered an order granting summary judgment, ánd it is from this order that plaintiff appeals. We affirm.

The pertinent facts are as follows. In March 1972, the insured began employment at Bell Telephone Laboratories, Inc. (Bell). As a Bell employee, he was entitled to various benefits, including a savings plan, stock ownership and group life insurance. The carrier of the group life insurance was Prudential Life Insurance Company (Prudential). The insured, who was single at the time, named his parents as beneficiaries of any vested rights accruing in these benefit programs in the event of his death. On July 7, 1973, the insured married plaintiff. On September 12, 1977, he executed and filed with Bell a form changing the beneficiary under his savings plan to plaintiff. On that same date, he signed an Equitable Life Assurance Society of the United States designation of beneficiary and contingent beneficiary form (Equitable form). This form, however, was never turned in to Bell. On February 9, 1978, the insured executed a change of beneficiary for his stock ownership program, naming plaintiff as beneficiary. On May 18, 1979, the insured executed a form increasing the amount of benefits under his Prudential policy, but failed at that time to change the beneficiary under his policy.

The insured died on December 7, 1980, at which time the records of Prudential showed that defendant was the designated beneficiary under the insured’s group life insurance policy. Plaintiff subsequently filed a complaint in the circuit court of Cook County against defendant and Prudential. The complaint sought an order restraining the payment of any insurance proceeds to defendant and declaring plaintiff the lawful beneficiary under the policy or, alternatively, declaring that any insurance proceeds paid to defendant be held by him in constructive trust for the benefit of plaintiff.

Defendant filed a counterclaim against Prudential, seeking judgment in the amount of the proceeds of the policy. Prudential filed a counterclaim for interpleader relief and, upon depositing the proceeds of the subject policy with the court, was dismissed as a party defendant. Defendant thereafter filed a motion for summary judgment which was granted by the trial court; the court found that defendant was the designated beneficiary under the policy.

On appeal, plaintiff argues that although the defendant is specified as the beneficiary under the Prudential policy, the insured intended to change the beneficiary designation to her and that equity principles entitle her to the proceeds of the policy. In support of her argument, plaintiff relies primarily on the fact that following the inured’s death the previously mentioned Equitable beneficiary designation form was found among his possessions at Bell. This unwitnessed form was dated September 12, 1977, designated plaintiff as beneficiary, and included the statement in boldface, “TO BE COMPLETED IN DUPLICATE AND SUBMITTED WITH YOUR CERTIFICATE.” Plaintiff contends the Equitable form is evidence that the insured intended her as beneficiary under the Prudential policy.

We initially recognize that in most modern insurance policies, the insured is able to change the beneficiary at any time and the designated beneficiary has no vested interest in the policy. (Travelers Insurance Co. v. Smith (1982), 106 Ill. App. 3d 318, 435 N.E.2d 1188.) As a general rule, when a policy prescribes a method for changing beneficiaries, that method is exclusive and a change by any other means is ineffectual. (Logan v. State Farm Life Insurance Co. (1978), 61 Ill. App. 3d 770, 378 N.E.2d 395; Williams v. Teachers Insurance & Annuity Association (1973), 15 Ill. App. 3d 542, 304 N.E.2d 656.) However, when an insured has done everything in his power to effectuate a change of beneficiary, equity will not require exact compliance with the conditions prescribed in the policy. (Logan v. State Farm Life Insurance Co. (1978), 61 Ill. App. 3d 770, 378 N.E.2d 395; Donahey v. Sweigart (1949), 336 Ill. App. 366, 84 N.E.2d 170.) To warrant the intervention of equity, Illinois law requires that some positive action be taken by the insured to comply with the terms of the policy; “substantial compliance” with the policy terms is the test. Tatelman v. Tatelman, 25 Ill. App. 3d 678, 323 N.E.2d 821, cert, denied, (1975), 58 Ill. 2d 599, Seipel v. State Employees’ Retirement System (1972), 8 Ill. App. 3d 182, 289 N.E.2d 288.

In the case at bar, the method for changing the beneficiary designation is regulated by section 13 of the Prudential group life insurance policy, which stipulates:

“The insured may change the Beneficiary designated in his certificate by filing written notice thereof with the Employer accompanied by his certificate. Upon receipt of such notice and the certificate the Employer shall there upon endorse such change on the certificate.”

Clearly, the insured in the present case failed to substantially comply with the above policy provision. The record discloses that he never filed written notice of a change of beneficiary, nor did he file his certificate with Bell. In fact, according to the sworn affidavit of a Bell benefit representative, Bell’s records contained no indication that the insured ever made a request to change the beneficiary under the policy in dispute.

The Equitable form relied upon by plaintiff is also clearly insufficient to demonstrate substantial compliance with section 13 of the Prudential policy. The form not only was from the wrong insurance company but was of the wrong type; it was a “beneficiary designation” form, rather than a “change of beneficiary” form. The form failed to designate a policy or certificate of insurance number, was not witnessed and was never filed with Bell. The affidavit of Bell’s representative indicates that even if this form had been received by his company, it would not have been sufficient to effect a change of beneficiary. Further, although plaintiff contends that the Equitable form was supplied to the insured by Bell, there is no support for such an allegation in the record.

Moreover, we note that in May 1979 the insured executed a form for supplemental coverage under the Prudential policy which contained in boldface the following caveat: “I understand that the beneficiary for my supplementary group life insurance coverage will be the same as that under my basic group life insurance.” Despite this warning, the insured failed to take the steps necessary to effectively change the beneficiary.

We further note that the case law cited by plaintiff is readily distinguishable from the case at bar. In Travelers Insurance Co. v. Smith (1982), 106 Ill. App. 3d 318, 435 N.E.2d 1188, the insured filled out and submitted to his employer a change of beneficiary form for his life insurance which the employer rejected because the form was witnessed by only one person. Although the insured obtained the signature of a second witness, the form was not returned to the employer prior to the insured’s death. Hence, in Travelers, unlike the present case, the beneficiary change process was substantially completed but interrupted by the insured’s death.

Plaintiff’s reliance on Dooley v. James A. Dooley Associates Employees Retirement Plan (1982), 92 Ill. 2d 476, 442 N.E.2d 222, is also misplaced. In Dooley, the court initially recognized that “where the courts have been convinced that no doubt as to decedent’s intent existed, that intent has been implemented despite what would appear to be substantial noncompliance with formal requirements.” (92 Ill. 2d 476, 485.) Here, doubt does in fact exist as to the decedent’s intent; his failure to use the proper form from the proper insurance company and not filing the form with his employer after three years elapsed certainly creates doubt as to his intent. Further, the court in Dooley made it clear that certainty of intent alone is not sufficient to accomplish a change of beneficiary; there must be a combination of intent to make the change and positive action towards that end. (92 Ill. 2d 476, 486.) Here, it can hardly be said that the conduct of the insured constituted positive action sufficient to effect a change in the beneficiary.

Plaintiff additionally alleges that the trial court erred in holding that the deposition testimony of insurance salesman Anthony DeVita, concerning a conversation he had with the insured, was inadmissible under the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201). The Dead Man’s Act prohibits a party to a civil action, or a person directly interested, from testifying in his own behalf when the adverse party sues or defends as the representative of a deceased or incompetent. (See Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022.) The record reveals that DeVita was not a party to, or directly interested in, this action and therefore his deposition testimony was not barred by the Act. Notwithstanding this determination, we find it unnecessary to disturb the order granting summary judgment. We note that during oral argument a dispute arose as to whether the trial court did in fact admit DeVita’s deposition as evidence. Scrutiny of the record reveals that the trial court considered DeVita’s testimony in reaching its findings. The trial judge stated:

“The Court of Equity or no court can now do for the decedent that which he did not do for himself for seven and a half years of married life and three years, three months, after he signed the change form from a different company ***. The fact that he had a dialogue with an insurance salesman and gave some expression as to his insurance planning as it relates to his house, homeowners coverage, those conversations can never supply the missing action, nor supply the intent to change which, to my way of thinking, is totally destroyed by this delay, this unexplainable delay.”

We agree with the trial court that, even when considering DeVita’s testimony as part of the evidence, it is still apparent that the meager actions by the insured were insufficient to justify the intervention of equity.

Finally, plaintiff argues that the imposition of summary judgment was inappropriate in this case. It is well established that summary judgment is to be granted where the pleadings, depositions and admissions on file, together with affidavits, show that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. (Tatelman v. Tatelman (1975), 25 Ill. App. 3d 678, 323 N.E.2d 821, cert, denied (1975), 58 Ill. 2d 599; Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) The use of summary judgment is to be encouraged in the proper case (Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E.2d 576; Tatelman v. Tatelman (1975), 25 Ill. App. 3d 678, 323 N.E.2d 821, cert, denied (1975), 58 Ill. 2d 599), and this is such a case. Here, the trial court considered the deposition testimony of DeVita and the plaintiff, and the affidavit of a Bell benefit representative. None of the facts contained in this evidence are contested and no additional facts were presented to refute defendant’s motion. The record is devoid of evidence that the insured took any substantial action to change the beneficiary of the policy in dispute. Based on the record before us, it is clear that there exists no genuine issue as to any material fact and that the defendant, Andrew John Rniffin, was entitled to judgment as a matter of law.

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

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.

      PIainti£f speculates that after realizing the Equitable form was incorrect, the insured executed the correct Prudential form and filed it with his employer, who mishandled the registration of the form. Such speculation, however, is not supported by the facts in evidence.

      DeVita, an employee of Farmers New World Life Insurance Company, met with the insured on September 15, 1980, approximately three months prior to his death, to discuss mortgage or life insurance in connection with the couple’s pending purchase of a new home. The testimony plaintiff sought to admit concerned DeVita’s conversation with insured at that time. Specifically, DeVita testified that based on their conversation, it was an “understood fact” that plaintiff was beneficiary under the life insurance policy with Bell. DeVita, however, admitted that this “understood fact” was never uttered by the insured.


author: JUSTICE PERLIN

text:
    JOHN ROONEY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 2881
    Opinion filed October 4, 1983.
    Rehearing denied December 6, 1983.

      Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski, of counsel), for appellant.
    Karr and Valenti, Ltd., of Chicago (Thomas P. Valenti, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals from an order of the trial court denying its motion for summary judgment and granting summary judgment to plaintiff, John Rooney (Rooney). On appeal, State Farm contends that because of Rooney’s alleged failure to comply with the notice requirements of his State Farm auto insurance policy, the trial court erred in entering judgment in favor of Rooney in his action for declaratory judgment. Ill. Rev. Stat. 1979, ch. 110, par. 57.1.

Rooney allegedly sustained an injury to his lower back when, on January 10, 1980, at approximately 6:30 a.m., an automobile he owned and was driving was struck in the right rear by an unidentified vehicle. The accident occurred as Rooney slowed for another vehicle which was making a left turn on River Road in Franklin Park, Illinois.

The automobile insurance policy issued to Rooney by State Farm contained the following provisions:

“REPORTING A CLAIM-INSURED’S DUTIES
1. Notice to Us of an Accident of Loss.
The insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible. * * *
4. Other Duties Under Medical Payments, Uninsured Motor Vehicle, Death, Dismemberment and Loss of Sight, and Loss of Earnings Coverages.
The person making claim also shall:
a. give us all the details about the death, injury, treatment and other information we need to determine the amount payable.
* * *
c. under the uninsured motor vehicle coverage:
(1) report a ‘hit-and-run’ accident to the police within 24 hours and to us within 30 days.
* * *
SECTION III — UNINSURED MOTOR VEHICLE-COVERAGE U
Two questions must be decided by agreement between the insured and us:
1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle; and
2. If so, in what amount?”

Rooney’s discovery deposition, taken on June 15, 1982, is relied upon by both parties; Rooney stated that on January 10, 1980, the day of the incident, he “reported” the accident from his place of work by telephone to the Franklin Park police department and to the office of State Farm agent Irving Castings from whom he had purchased the policy. Rooney did not initially tell the police that he was injured, but the written report he filed with the police on February 6, 1980, does reflect that Rooney injured his back in the auto accident.

Rooney further stated in his deposition that when he telephoned Castings’ office he spoke to “one of the girls in the office” and told her that his auto had sustained damage in a hit-and-run accident. The following colloquy then occurred between State Farm’s counsel and Rooney:

“Mr. Piekarski: Did she ask you if you had been injured in the accident?
Rooney: Yes.
Mr. Piekarski: Did you tell her you had been injured in the accident?
Rooney: No.”

The office girl instructed Rooney to bring his auto to a State Farm claims office for inspection. Rooney did so but at no time did he inform any State Farm employee that he had suffered any bodily injuries in the January 10,1980, accident.

On January 11, 1980, the day following the auto accident, Rooney visited the clinic of his employer’s physician and was examined for a claimed lower back injury. Rooney did not tell the doctor that his injury was the result of an auto accident. Instead, Rooney told the physician that he was injured on January 8, 1980, while shoveling sand at work. The following colloquy occurred between State Farm’s counsel and Rooney:

“Mr. Piekarski: Did you tell any of the doctors that treated you that you had been involved in an automobile accident?
Rooney: No.
Mr. Piekarski: Why not?
Rooney: Well, I figured if I have workmen’s compensation, I have my weekly check, that was the reason. I had no other resources of any kind, no other income.
Mr. Piekarski: Did you believe if you told these doctors about the accident, you would have not received the workmen’s compensation benefits?
Rooney: I think so.”

In May 1981 Rooney underwent lower back surgery (laminectomy) at Loyola Hospital. Rooney filed a workmen’s compensation claim for the January 8, 1980, injury and received benefits until October 1981. In July 1981, Rooney submitted to the workers’ compensation insurance carrier hospital bills approximating $9,000.

On August 24, 1981, Rooney, through counsel, made a demand of State Farm to arbitrate his uninsured motorist claim for injuries allegedly sustained by him in the January 10, 1980, auto accident. On October 22, 1981, State Farm in a letter to Rooney reserved the right to deny liability for Rooney’s uninsured motorist claim because of Rooney’s alleged failure to comply with the notice requirements of the policy. On March 4, 1982, Rooney filed an action for declaratory judgment asserting that State Farm’s denial of benefits under its uninsured motorist provisions breached his insurance contract.

State Farm filed an answer denying Rooney’s allegations. State Farm also filed a counterclaim seeking declaratory relief, asserting that Rooney “breached his duties under the terms and conditions of the policy issued to him *** in failing to report the ‘hit-and-run’ accident to police within 24 hours and in failing to advise the company of an uninsured motorist claim within 30 days.”

Both parties moved for summary judgment. Following oral argument and a review of the memoranda filed by the parties in support of their motions for summary judgment, the trial court found that “the telephonic notice given to the agent of State Farm and the police department was adequate notice under the terms and conditions of the policy and the applicable law.” The trial court denied State Farm’s motion for summary judgment and granted Rooney’s motion for summary judgment. State Farm appeals from that order.

State Farm asserts that because of Rooney’s alleged failure to comply with the notice requirements of the uninsured motorist provision of his policy, the trial court’s order was error.

Generally, compliance with the notice requirements of an insurance policy is necessary to establish coverage. (Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 300, 388 N.E.2d 253, quoting INA Insurance Co. v. City of Chicago (1978), 62 Ill. App. 3d 80, 83, 379 N.E.2d 34.) The primary purpose of such a notice requirement is to enable the insurer to make a timely and thorough investigation of a claim and to protect itself against unjustifiable claims. United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 898, 403 N.E.2d 508.

State Farm acknowledged that on January 10, 1980, Rooney, by telephone, notified the police and a State Farm representative that he had been involved in a hit-and-run accident. State Farm contends, however, that because of Rooney’s alleged denial of bodily injury, the information provided by Rooney to the police and to State Farm was, under the terms of his policy, insufficient notice to support a claim for uninsured motorist protection.

It is well established that notice of an accident is “distinct and different” from the proof of claim requirements of the uninsured motorist provision and “compliance with one is not necessarily compliance with the other.” (8C Appleman, Insurance Law & Practice sec. 5083.45 (1981); see also Martinson v. American Family Mutual Insurance Co. (1974), 63 Wis. 2d 14, 20, 216 N.W.2d 34, 37.) Notice of an accident will alert an insurer to the occurrence of an event from which a claim may arise, whereas “ ‘[t]he object of requiring proofs of loss is to afford proper information to the insurance company as to the facts regarding the loss and its liability, in order to make it possible for it to adjust and determine the amount and extent of the loss.’ ” Martinson v. American Family Mutual Insurance Co. (1974), 63 Wis. 2d 14, 20, 216 N.W.2d 34, 37, quoting 8 D. Blashfield, Automobile Law & Practice sec. 331.1, at 146 (1966).

Rooney argues that after he notified State Farm of his accident, State Farm apparently chose not to investigate beyond the questions posed to him by the office girl when he telephoned the agent’s office on January 10, 1980. Moreover, Rooney contends that he was not required to “go forward” with information about his bodily injuries in the absence of a request by State Farm that he provide such information.

State Farm, on the other hand, contends in this appeal that a request for such information was in effect made during the telephone conversation between Rooney and the State Farm representative when, on January 10, 1980, she asked him if he had been injured. According to State Farm, although Rooney was aware of his bodily injuries, his statement that he was not so injured negated any claim and rendered further investigation by State Farm unnecessary.

During argument before the trial court, State Farm had also urged that Rooney’s denial of bodily injury was a defense under his policy against his claim for uninsured motorist coverage. The court, however, did not accept this premise and stated that “[t]he only question [was] whether the notice to the agent of State Farm was adequate notice so as to satisfy the terms and conditions of the policy.” Following the trial court’s granting of Rooney’s motion for summary judgment, State Farm persisted in its contention that Rooney’s denial of bodily injury excused coverage under the uninsured motorist provision of its policy. The following colloquy occurred between the court and State Farm’s counsel:

“Mr. Piekarski: He lied. He lied to them. I mean, I don’t think that’s notice. It’s as simple as that. * * *
The court: I think you’re entitled to raise these fact questions before the arbitrator.
Mr. Piekarski: The arbitrator’s not entitled — those are questions of coverage. Those have to be done — those have to be determined here. The only issue before the arbitrator in arbitration is damages.
The court: If you wish to amend your answer I’ll give you leave to amend your answer and set forth other matters.
I think I agree that you’re entitled to a hearing with respect to his conduct, but I can’t say there was insufficient notice.
Mr. Piekarski: *** The questions as to whether or not he lied are important only to the issue of notice, and that is to be decided here. * * *
The court: The only thing I’m talking about is notice. I’m not talking about whether the fellow is a consummate liar. I have nothing to judge [that by].
* * * The court: he did in fact call the police and notify them of the accident and I believe that’s adequate notice.” (Emphasis added.)

It is apparent that the trial court here considered as the pivotal question in granting summary judgment to Rooney whether the information given by Rooney to the police and to the representative of State Farm satisfied the notice requirements of his insurance policy. The court characterized as “peripheral” “factual matters” such as “whether this [was] a bona fide accident ***; whether he actually suffered injury ***; and whether he [had not] discovered] he was injured until after he talked to the lawyers.” The court likewise considered as a “fact question” whether Rooney “lied” when he notified State Farm that he was involved in a hit-and-run accident but had suffered no bodily injuries. The court agreed that State Farm was “entitled to a hearing with respect to his [Rooney’s] conduct” and suggested that State Farm could "raise these fact questions before the arbitrator.”

State Farm suggests that the colloquy and comments set forth above indicate that the trial court may have misinterpreted the scope of an arbitrator’s jurisdiction when a claim for uninsured motorist protection is involved. It apparently feared that it would be precluded from arguing in arbitration such facts as the trial court had termed “peripheral.”

Under Illinois law, coverage disputes are not included in arbitration provisions of automobile liability policies relating to resolution of disputes arising under an uninsured motorist provision, and arbitration is limited to a determination of issues of liability of the uninsured third-party tortfeasor and damages to the insured. Allstate Insurance Co. v. Horn (1974), 24 Ill. App. 3d 583, 592, 321 N.E.2d 285; Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 94, 242 N.E.2d 149.

State Farm appears to argue that in assessing whether the notice requirements of its policy have been met so as to exclude any dispute as to coverage, the court must first consider Rooney’s questionable conduct such as his “lying.” State Farm seemingly overlooks, however, that it was invited by the trial court to amend its answer and to “set forth other matters,” implying, we believe, that the court would have then considered Rooney’s “conduct” before granting him summary judgment. Since the record reveals no action by State Farm to amend its answer, we must presume that State Farm chose to rely only upon the adequacy of notice and not upon questions of Rooney’s conduct.

On this record, therefore, we conclude that the trial court’s action in denying State Farm’s motion for summary judgment and granting Rooney’s motion for summary judgment was not error.

For the reasons herein stated, we affirm the order of the trial court.

STAMOS and HARTMAN, JJ., concur.

      Subsequent to the inspection of Rooney’s auto, his property damage claim was satisfied by State Farm with the payment of approximately $380 for repairs.

      Rooney also stated in his deposition that during the summer of 1979 he had missed six weeks of work due to a lower back injury which he sustained when he fell from his truck while at work.

      Rooney also submitted a claim for these same hospital bills to State Farm under the medical benefits provision of his automobile policy. This claim was subsequently withdrawn by Rooney and is not involved here.


author: JUSTICE LINN

text:
    DELTAK, INC., Plaintiff-Appellee, v. STEVEN M. SCHWARTZ, Defendant-Appellant.
    First District (4th Division)
    No. 82—1947
    Opinion filed October 27, 1983.

      Fisch, Lansky and Greenburg, of Chicago, for appellant.
    Defrees & Fiske, of Chicago (Timothy J. Riordan and Gary Schuman, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

An original complaint for preliminary injunction was brought by plaintiff-appellee Deltak, Inc. (Deltak), against defendant-appellant Steven M. Schwartz (Schwartz). Prior to its stipulated dismissal, Schwartz filed suit in the circuit court of Cook County against Deltak seeking damages for Deltak’s alleged breach of his written employment contract. Deltak filed a motion for summary judgment on Schwartz’ contract claim, and it was granted.

Schwartz appeals, contending that a material issue of fact was raised thereby preventing the entry of summary judgment. More particularly, Schwartz contends the following material factual issues were presented to the trial court: (1) he was not made aware of the quality standards governing his work, although failure to comply with these standards was the basis for the termination of his employment; (2) he was not given the required 30 days’ notice prior to termination of his failure to comply with quality standards; and (3) he was terminated improperly at the “whim” of his employer.

We affirm the decision of the trial court.

Deltak, Inc., is a corporation that develops and produces multi-me-dia training courses for the electronic data processing industry. Some of these courses are written by independent authors, who are employed by Deltak to design and write materials in connection with particular projects.

On July 5, 1979, Deltak and Schwartz entered into a written contract providing that Schwartz, as an independent author, would design and write two to five multi-media training courses. The contract provided, in pertinent part,

“3B. All deliverables [writer’s work product] must conform to DELTAK’s product development standards and procedures ***, which have been furnished to WRITER prior to the signing of this Agreement. All deliverables must also conform to DELTAK’s quality standards, as interpreted by DELTAK’s Vice President of Product Development, who must approve the quality and content of all deliverables before work on the next phase begins.”

The contract also provided that Schwartz’ fee was to be a royalty of 8% of Deltak’s gross receipts from the sale of the courses. At the time he signed the contract, Schwartz received a copy of Deltak’s Standards and Procedures Manual.

Schwartz submitted the first design for his project in November 1979. Deltak’s vice president of product development determined that Schwartz’ work failed to conform to Deltak’s quality standards. He requested Schwartz make substantial revisions. The revised product design, submitted in February 1980, also was rejected as being of inferior quality. On April 7, 1980, Deltak wrote Schwartz a six-page letter explaining in detail the problems its reviewers had found in the content, organization, and writing of the revised design. At the end of six pages of criticism, the letter concluded, “We are making good progress.”

In June 1980, Deltak’s vice president of product development conferred with members of Deltak’s committee assigned to oversee Schwartz’ work; he determined that Schwartz’ work product had failed to meet the specified quality standards for the project. He instructed the product manager to terminate Schwartz’ employment contract. Thereupon, Schwartz was terminated and another author was hired to produce the program. The second author never saw any of Schwartz’ work product. Schwartz’ breach of contract action and subsequently this appeal followed.

Schwartz’ first contention on appeal is that he raised a material fact issue to the effect that Deltak failed to furnish him with its product development standards. Schwartz’ failure to conform to these standards allegedly was the basis for termination. It was against these standards that the quality of Schwartz’ work was to be judged, and, if they were not made known to him, he could not be guilty of having breached his obligation to meet the standards. However, an examination of the trial court record reveals evidentiary facts which directly controvert Schwartz’ first contention. If the party moving for summary judgment supplies evidentiary facts which, if not contra-dieted, would entitle him to judgment, the opposing party cannot rely upon his complaint alone to raise issues of material fact. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 575, 442 N.E.2d 648, 653.) An affidavit in support of a motion for summary judgment, as was presented in this case, is actually a substitute for testimony taken in open court. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 499, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Well-alleged facts contained therein, uncontradicted by counteraffidavit must be taken as true, notwithstanding contrary averments in the adverse party’s pleading which purport to establish bona fide issues of fact. 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500-01, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.

The record discloses that Schwartz himself filed an affidavit explicitly stating that he had received Deltak’s “Product Development Standards and Procedures Manual” at the time he signed the employment contract. A second affidavit was filed by Serge P. Beauregard, group vice president of development and operations at Deltak, affirming that Schwartz was given the procedures manual when he accepted his first assignment. The record is devoid of any contradictory evidence or counteraffidavits which place this material fact at issue. Accordingly, we find that Schwartz literally received Deltak’s product development standards and was thereby apprised of the quality standards to which his work was to conform and to which his work allegedly did not conform. No material issue of fact remained to be decided in connection with the foregoing.

Schwartz’ second and third contentions on appeal both address the issue of the propriety of his termination. Schwartz argues that certain conditions precedent to the termination of the employment contract were not met. Deltak denies Schwartz’ contention. Schwartz contends that his agreement with Deltak required 30-days’ prior written notice as a condition precedent to termination. The provision at issue, paragraph 7D(3), provides:

“7D. Contingencies for WRITER’S Non-Performance-, If WRITER fails to meet any schedule deadlines, fails to comply with DELTAK’s product development or quality standards, or fails to cooperate in setting any schedule for deliverables or revisions before the deadline, DELTAK may: * * *
(3) Terminate this Agreement in the event WRITER fails to comply with the product development and quality standards as defined in paragraph 3B, provided WRITER shall have 30 days from receipt of written notice of such failure to comply with the applicable standards.”

In support of his contention that Deltak breached this provision of the contract, Schwartz cites Zella Wahnon & Associates v. Bassman (1979), 79 Ill. App. 3d 719, 398 N.E.2d 968. In Zella, plaintiff entered into an employment contract that provided she would receive monthly compensation for billable hours submitted at the end of each month. Termination could be effected by either party at will upon 180 days’ written notice. The employer orally terminated the contract without the required 180 days’ prior written notice. The court found the employer to be in breach and awarded plaintiff the lost wages she would have earned during the 180-day notice period required by the agreement.

The factual disparity between Zella and the instant case renders it inapposite. Unlike the plaintiff in Zella, Schwartz was not to be compensated on a periodic basis. The agreement did not provide for wages. His contract specified that any compensation was to consist solely of a predetermined royalty based on the gross receipts Deltak realized from the sale of Schwartz’ completed courses. Because Schwartz’ courses were never used or sold, Deltak realized no gross receipts, and, consequently, Schwartz was entitled to no compensation. Thus, whereas the plaintiff in Zella would have earned a specific sum during the required notice period, under the provisions of Schwartz’ contract with Deltak the additional 30 days’ notice would have entitled him to no compensation whatsoever.

More crucial than Schwartz’ misplaced reliance on Zella is the undisputed evidence which suggests that Deltak did in fact comply with the spirit of the notice requirement. The contract provision at issue, paragraph 7D(3) quoted above, required that the program writer be given 30 days from receipt of written notice of failure to comply with applicable quality standards. The record shows that Schwartz submitted his first design in November 1979. After reviewing his work, Deltak informed him that his design did not conform to quality standards and requested that he make substantial revisions. In February 1980, Schwartz presented a revised product design to Deltak’s reviewing committee. This too was rejected as not in conformance with Deltak’s quality standards.

A letter from Deltak to Schwartz dated April 7, 1980, over 90 days prior to his ultimate termination on July 16, 1980, set forth in great detail criticism of Schwartz’ submitted design. The letter called for Schwartz to “revise and resubmit the entire design,” informed him that “the most serious problem is the overall organization,” and concluded that “the design shows evidence of poor writing.” In addition, Deltak informed Schwartz that several of the techniques recommended in his design were either “violations of standards or old techniques that were no longer used” and that “in at least one case the outlines failed to show any content corresponding to an objective.” Even to one unversed in the design of multimedia training courses, these comments would suffice as notice of failure to comply with quality standards. In July 1980, after Schwartz had been given several opportunities and almost a full year to bring his work into conformance with Deltak’s quality standards and had failed to do so, Deltak terminated the employment contract. Based on the trial court record, ample undisputed evidence was presented to support the finding that Schwartz was in receipt of written notice of failure to conform with applicable quality standards more than 30 days prior to his termination.

Schwartz’ final contention is that he was terminated improperly at the “whim” of his employer. He argues that Deltak acted under the mistaken impression that the contract was terminable at will and violated the fixed “term” provision in the agreement. In support of this argument, Schwartz quotes paragraph 3B, as set forth in the factual statement above, and paragraph 2 which provides:

“2. TERM: This Agreement shall take effect as of the date hereof and shall continue for three years.”

Schwartz’ assertions, while accurate, are immaterial to the instant contract which, as clearly characterized in paragraph 3B, is in the nature of a personal service contract.

“Contracts wherein the promisor’s performance is conditioned upon its satisfaction with the promisee’s performance have traditionally been divided into two groups, depending upon whether the nature of the promisor’s satisfaction is objective or subjective. In contracts involving matters of fancy, taste, sensibility and judgment, the nature of the promisor’s satisfaction is subjective. Hence, ‘[i]n contracts involving matters of fancy, taste, or judgment, when one party agrees to perform to the satisfaction of the other, he renders the other party the sole judge of his satisfaction without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied when he asserts that he is not.’ *** Accordingly, the personal service contract *** must be construed as allowing termination of the promis-ee’s employment upon the subjective dissatisfaction of the defendant promisor with the plaintiff’s performance.” Ray v. Georgetown Life Insurance Co. (1981), 94 Ill. App. 3d 863, 865, 419 N.E.2d 721, 722.

Paragraph 3B of Schwartz’ employment contract requires that Schwartz’ services conform to Deltak’s quality standards as subjectively interpreted by the vice president of product development. The contract must be construed as allowing termination of Schwartz’ employment upon the subjective dissatisfaction of Deltak. Thus, the contract is not, as Schwartz contends, an “at will” agreement but rather a personal service contract terminable upon Deltak’s subjective determination that Schwartz’ work product does not conform to quality standards. A review of the trial record reveals that Deltak repeatedly and finally rejected Schwartz’ work product as not conforming to quality standards and that his termination was based upon Deltak’s dissatisfaction. We therefore find no merit in Schwartz’ contention that he was terminated at the “whim” of Deltak in contravention of his agreement.

A breach of a personal service contract will not be found unless the employee shows that the employer was not dissatisfied with him or that the employer discharged him for reasons other than dissatisfaction. (Ray v. Georgetown Life Insurance Co. (1981), 94 Ill. App. 3d 863, 866, 419 N.E.2d 721, 723.) Nothing in the record has been offered by Schwartz to prove that Deltak was not dissatisfied with his work product or that Deltak terminated him for any reason other than this subjective dissatisfaction. No genuine issue of material fact has been raised that refutes this conclusion.

The purpose of summary judgment is to render expeditious judgment on questions of law after the trial court has determined that no genuine issue as to any material fact exists between the parties. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App. 3d 333, 338, 435 N.E.2d 1217, 1221.) The record discloses that the trial court had before it and considered all of the documents submitted to it by the parties in support of and in opposition to Deltak’s motion for summary judgment. Where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law, summary judgment is proper. (Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 187, 419 N.E.2d 935, 938.) The trial court determined such to be the case and granted Deltak’s motion for summary judgment. We affirm.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE GOLDBERG

text:
    THE CITY OF NORTHLAKE et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
    First District (1st Division)
    No. 82—3126
    Opinion filed November 7, 1983.

      Neil F. Hartigan, Attorney General, of Springfield, Arvey, Hodes, Costello & Bur man, of Chicago, and Roland Eckert, of Department of Transportation, of Springfield (Gary L. Starkman and Leonard Saphire-Bernstein, Special Assistant Attorneys General, of counsel), for appellants.
    Serpico, Novelle, Dvorak, & Navigato, Ltd., of Chicago (Robert A. Nov-elle and Vincent F. DiPiero, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Six municipalities, namely, city of Northlake, village of Melrose Park, village of Bellwood, village of North Riverside, village of Forest Park, and village of Stone Park (plaintiffs) brought this action against the Illinois Department of Transportation (Department) and its officers. Plaintiffs filed a two-count complaint. The first count sought a declaration that the Department was legally liable to provide electrical power for the operation of various traffic-control devices. The second count sought mandamus to compel this payment by the Department. The trial court entered an order on motion of the Department striking count II and requiring an answer to count I. The Department filed an answer and affirmative defense. It alleged that plaintiffs had agreed by written contracts to assume the cost of providing the necessary electricity.

For some esoteric reason plaintiffs filed a motion for summary judgment. After extensive hearings, the trial court held that the Department was obligated by statute to supply the necessary electricity. In addition, the trial court denied plaintiffs’ motion for summary judgment. Although the order appealed from might possibly be construed as a partial summary judgment, it is definitely a declaration of the rights of the parties in accordance with the prayer of the first count of plaintiffs’ complaint. We will consider the order as a final declaratory judgment. See Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 1121, 415 N.E.2d 625.

I

Initially, the Department contends the trial court had no jurisdiction to adjudicate the present controversy but that the court of claims is the only proper forum. Section 8 of the Court of Claims Act provides in pertinent part:

“The court [of claims] shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, or claims for expenses in civil litigation.
(b) All claims against the state founded upon any contract entered into with the State of Illinois.” Ill. Rev. Stat. 1981, ch. 37, par. 439.8.

In City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 126, 384 N.E.2d 310, the supreme court held, “the issues involved in the instant case (the effective date of a statute) and the relief requested (a declaratory judgment and the withholding of certain funds from the State treasury) do not render the instant case a suit against the State.” We find Allphin dispositive of the issue before us. The basic theory of Allphin was fully and expressly reaffirmed in Saltiel v. Olsen (1981), 85 Ill. 2d 484, 491-92, 426 N.E.2d 1204.

In the case at bar, plaintiffs do not claim money damages based upon their dealings with the Department. On the contrary, plaintiffs’ complaint seeks simply a judgment declaring plaintiffs’ future rights regarding the interpretation of the pertinent sections of the Vehicle Code of Illinois. The issue of mandamus to obtain payment of money, raised under the dismissed second count of plaintiffs’ complaint, is not before the court. We therefore conclude that the instant case was correctly filed in the circuit court which is the proper legal forum for adjudication of the rights of these parties.

II

Turning to the merits of this litigation, the pertinent portion of the Illinois Vehicle Code provides:

“The Department [of Transportation] shall place and maintain such traffic-control devices, conforming to its manual and specifications on all highways under its jurisdiction as it shall deem necessary to indicate and to carry out the provisions of this Chapter or to regulate, warn or guide traffic.” Ill. Rev. Stat. 1981, ch. 95V2, par. 11-303(a).

The issue before us is whether the statutory language requiring the Department to “place and maintain traffic-control devices” requires the Department to furnish electricity at its own expense for the operation of the various devices. The learned and able trial judge held expressly that under the circumstances here shown, a reasonable definition of “maintenance” requires the Department “to provide the necessary electrical energy” for the traffic controls. The problem thus is one of statutory construction to determine the meaning of the language used by the legislature.

We are required to give statutory language its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492; Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 445 N.E.2d 827.) The principal definition of the word “maintain” is “to keep in a state of repair, efficiency, or validity: preserve from failure or decline ***.” Webster’s Third New International Dictionary 1362 (1971); see also Board of Education v. Board of Education (1931), 343 Ill. 464, 469,175 N.E. 810.

In addition courts have previously made a distinction between the concepts of maintenance and operation. In McChesney v. Village of Hyde Park (1894), 151 Ill. 634, 37 N.E. 858, the supreme court interpreted a statute authorizing municipalities to levy taxes for a sewage draining system. The court concluded that the municipalities had the authority to levy taxes only for the construction and maintenance of the system and not for its operation:

“As we have seen, the cost of construction and of maintaining or keeping in repair are the only costs that can be levied upon the property benefited by special assessment. The word ‘operate’ does not mean the same thing as either the word ‘construct,’ the word ‘maintain,’ or the expression ‘keep in repair,’ and is not included in the significations of either. Webster defines the word ‘operate’ as meaning ‘to put into, or to continue in operation or activity,’ ‘to work, or to operate a machine.’ The correct solution is, that the cost of operating, when completed, or paying the running expenses when the ditch, pumping works and machinery are in activity, devolved upon the village of Hyde Park as a part of its general and corporate current expenses as an incorporated village; the drainage district, as a district, being in the meanwhile liable to pay all expenses that come within the category of maintenance or keeping in repair, as herein defined.” (151 Ill. 634, 647-48.)

(See also Illinois Central R.R. Co. v. Illinois Commerce Com. (1947), 397 Ill. 387, 392, 74 N.E.2d 526.) Furthermore, in Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 447-48, 404 N.E.2d 213, the supreme court indicated that the delegation of authority to the Department did not act completely to absolve local municipalities of their responsibilities regarding traffic-control signals.

The record shows that a large number of written agreements have been entered into between the Department and each of the plaintiffs. Generally these contracts all provide that the traffic signals installed thereunder shall remain the property of the Department. In addition, each of the plaintiffs agree therein to pay all of the cost of supplying the necessary electricity for operation of the signals.

The fact that the parties hereto, presumably with knowledge of the pertinent statute, entered into agreements specifically providing the cost of the necessary electrical energy is to be borne by the plaintiffs is a strong indication of their mutual conclusion that the Department has no statutory duty to provide the necessary electricity. “The law, including statutes, existing at the time and place of the making of a contract is to be considered a part of that contract to the same extent as though expressly referred to or incorporated within its terms.” Polytechnical Consultants v. Lind Plastic Products, Inc. (1980) , 82 Ill. App. 3d 472, 474, 402 N.E.2d 869.

Along these same lines, the Department is the agency delegated to administer the statute before us. Consequently the interpretation of that statute in every day use by the Department should be afforded a considerable amount of deference. This factor, combined with the length of time that the pertinent statute has been in effect without legislative amendment, constitutes a potent argument to indicate the proper meaning of the statute as above set forth. Pielet Brothers Trading, Inc. v. Pollution Control Board (1982), 110 Ill. App. 3d 752, 756, 442 N.E.2d 1374.

Additionally, one of the most important and decisive factors here is the meaning of the words used in the pertinent statute as above defined. The supreme court has stated, “It is well settled that, in construing a statute, the language should be given its plain and ordinary meaning.” (City of East Peoria v. Group Five Development Co. (1981) , 87 Ill. 2d 42, 46.) This court is bound to follow the precise language contained in the statute. Our duty in this regard has been well stated in Droste v. Kerner (1966), 34 Ill. 2d 495, 504, 217 N.E.2d 73, appeal dismissed (1967), 385 U.S. 456, 17 L. Ed. 2d 509, 87 S. Ct. 612:

“Courts have no legislative powers, and their sole function is to determine and, within the constitutional limits of the legislative power, give effect to the intention of the lawmaking body. We will not and cannot inject provisions not found in a statute, however desirable or beneficial they may be. [Citations.]”

It follows that this court is required to reverse the order appealed from and to remand the case with directions that an order be entered declaring the rights of the parties and providing that the Department is not legally obliged to pay the cost of electricity as required for operation of traffic-control signals.

Reversed and remanded with directions.

McGLOON and CAMPBELL, JJ., concur.