author: PRESIDING JUSTICE SULLIVAN

text:
    JOSEPH W. JOHNSTON, Plaintiff-Appellant, v. THE UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2924
    Opinion filed December 31,1981.

      Joseph W. Johnston, of LaGrange Park, for appellant, pro se.

    Gordon B. Nash, Jr., and Michael E. Barry, both of Chicago (Gardner, Carton & Douglas, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court;

Plaintiff appeals the granting of defendants’ motion to quash service of process for lack of in personam jurisdiction and the dismissal of his action without leave to amend. On appeal, he contends that his action was improperly dismissed because the evidence established that defendants transacted business in the State within the meaning of the Illinois long-arm statute.

It is alleged in plaintiff’s complaint that defendant United Presbyterian Church (Church) operates under the law of New York, and defendant William P. Thompson (Thompson) does business from the Office of the General Assembly of the Church in New York City; that both defendants submitted to jurisdiction under section 17(1) (a) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17(1) (a)) by virtue of transacting business in the State through five subordinate units of the Church judiciary, called judicatories, by which the actions of each lower judicatory are approved and adopted by those successively higher; that a contract, referred to as a “call” and establishing a “pastoral relationship” between plaintiff and the First Presbyterian Church of Geneseo, Illinois (congregation), commenced on November 1, 1953, and was approved and adopted by the Presbytery of Rock River (presbytery), a district organization with jurisdiction over the congregation; that the parties performed under the contract until 1971, with periodic salary changes being approved by the presbytery having jurisdiction; that the pastoral relationship was terminated “without reasonable cause” in 1971 by the congregation and with approval of the presbytery, which constituted breach of contract; and that plaintiff brought the present action after exhausting all remedies within the Church over an 8-year period.

Defendants were served with process in New York and filed a special appearance objecting to in personam jurisdiction (Ill. Rev. Stat. 1979, ch. 110, par. 20(1)) and moved to quash service. In support thereof, defendants attached an affidavit of Thompson which stated in substance that, except between 1939 and 1942, he was never a resident of the State; that he did not participate in any manner in the termination of plaintiff at the congregation; that the Church is a Pennsylvania corporation and neither owns property nor maintains an office in the State; that neither he nor the Church had any contact with plaintiff in the State regarding plaintiff’s termination nor availed themselves of State law as to the actions attributed to them in the complaint. Also, in their supporting memorandum defendants asserted that, based on the Thompson affidavit, the Church does not transact business in the State.

Plaintiff filed an objection to the motion to quash and a supporting affidavit and memorandum. Defendants’ motion was granted on October 27,1980, and the action dismissed. Plaintiff then presented his “Objection to the Order of October 27,1980,” which was overruled, and his motion to amend the complaint was denied.

Opinion

Plaintiff initially contends that the trial court erred in granting defendants’ motion to quash service of process and in dismissing the cause of action for lack of personal jurisdiction because defendants’ contacts with the State, in the form of the transaction of business, were sufficient to subject it to the jurisdiction of the circuit court. Personal jurisdiction over nonresidents is acquired by means of section 17 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17), the so-called “long-arm” statute, which provides in relevant part:

“(1) Any person, whether or not a citizen or resident of the State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State; # * «
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section.”

The legislative intent of section 17 is to provide the means for asserting personal jurisdiction over nonresident defendants consistent with Federal due process requirements. (Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673.) To satisfy such requirements and thereby to bind defendant to an adverse judgment, it is necessary that defendant have certain minimum contacts with the forum State, so that requiring him to defend therein is reasonable and does not offend the “ ‘traditional notions of fair play and substantial justice’ ” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158, quoting Milliken v. Meyer (1940), 311 U.S. 457, 463, 85 L. Ed. 278, 283, 61 S. Ct. 339, 343), and, as further defined, the minimal contacts concept requires a showing that through some act “defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240). The standard set forth in International Shoe continues to be the test for determining if nonresident defendants are subject to the jurisdiction of a State’s courts (Shaffer v. Heitner (1977), 433 U.S. 186,53 L. Ed. 2d 683, 97 S. Ct. 2569), and those requirements “must be met as to each defendant over whom a state court exercises jurisdiction” (Rush v. Savchuk (1980), 444 U.S. 320, 332, 62 L. Ed. 2d 516, 527, 100 S. Ct. 571, 579).

The principles of International Shoe are applied on a case-by-case basis (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761), and thus the quality of the defendant’s activities are evaluated in the full context of the circumstances presented (Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857), in order to determine what is fair and reasonable (Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 383 N.E.2d 1379). Moreover, the phrase “arising from” in sections 17(1) and 17(3) has been construed as requiring that there be a sufficiently close relationship between the defendant’s business activities in the State and the litigation against him. As stated in Volkswagen Insurance Co. v. Whittington (1978), 58 Ill. App. 3d 621, 625, 374 N.E.2d 954, 957:

“The foreign corporation’s business within Illinois must be’ related to the cause of action in question before section 17(1) (a) will confer personal jurisdiction. If none of this business gives rise, at least in part, to the cause of action in question, then no such jurisdiction exists.”

In each case of contested jurisdiction, the burden of proving its existence rests upon the party asserting it. (Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 409 N.E.2d 423.) In essence, therefore, a plaintiff asserting the presence of in personam jurisdiction over a nonresident defendant must, first of all, satisfy the minimum contacts requirement of section 17 and of due process; and, secondly, must demonstrate that the cause of action arose from the jurisdictional acts of defendant, as required by section 17. (See Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 370 N.E.2d 1106.) We believe plaintiff has sustained his burden as to both criteria in the present case.

Concerning the jurisdictional acts of defendants, plaintiff alleged, and defendants do not deny, that the Church operates nationwide through its system of judicatories, whereby actions at the lowest level (the congregation) must be approved at each successive level of ascending authority, which are respectively the presbytery, synod and general assembly. Plaintiff also stated in an affidavit, inter alia, that the Synod of Illinois and the General Assembly of the Church subsequently approved and adopted plaintiff’s call with the Geneseo congregation in 1954; that he had been a member of the Church since 1922 and at various times observed “the ways of representative Presbyterian agents of program”; and that in 1962, when he was a member of the General Council of the Synod of Illinois, the General Assembly required it to form a Committee on Ecumenical Relations. Furthermore, plaintiff stated in his reply to defendants’ memorandum in support of the motion to quash that each higher judicatory of the Church ratifies the actions of the lower.

With respect to Thompson, the record discloses a letter addressed by him to the Stated Clerk of the Synod of Illinois, dated February 15, 1972, but not mentioning plaintiff by name, wherein Thompson stated that judicial matters within the Church are governed by the Book of Church Discipline, and he directed that “the judicatory itself, in this case the Synod of Illinois, must decide whether it shall try the case in its judicial capacity or refer it to a judicial commission. Do not refer the complaint to the General Council.” The record also contains an article from a publication entitled A.D. and dated June 1973, which states that Thompson “led a discussion on the role and responsibilities of deacons and trustees” at a training session sponsored by the Synod of Lincoln Trails at a conference center called Stronghold operated by that synod near Oregon, Illinois. Thus, it appears to us, and Thompson does not indicate otherwise, that his activities in the State in advising, instructing and directing subordinate Church members were at his initiative and on behalf of the Church. (Cf. Hurletron Whittier, Inc. v. Barda (1980), 82 Ill. App. 3d 443, 402 N.E.2d 840 (defendant’s visits to Illinois were at request of and on behálf of plaintiffs, as their unilateral acts).) Furthermore, it is not prerequisite to a finding of transacting business under section 17 that defendants were physically present in the State (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131), and a single business transaction may be sufficient for personal jurisdiction [Cook Associates, Inc. v. Colonial Broach & Machine Co. (1973), 14 Ill. App. 3d 965, 304 N.E.2d 27). In our view, the activities outlined above on the part of both defendants here invoked the benefits and protections of Illinois law and were of such quality as constitutes the transaction of business under section 17.

We next consider whether plaintiff’s cause of action arose from the jurisdictional acts of defendants. In this regard, plaintiff alleged that on November 1, 1953, the congregation established a pastoral relationship with him, which was subsequently approved and adopted by the presbytery in its jurisdictional capacity over the congregation; that the presbytery also approved periodic salary changes for plaintiff until 1971 when the congregation, with the approval of the presbytery, terminated the pastoral relationship “without reasonable cause”; and that plaintiff thereafter sought remedies within the Church and did not bring the present action until such remedies were exhausted. Moreover, in his affidavit, plaintiff asserts that his contract with the congregation was not valid until successively ratified and adopted by the presbytery, synod, and general assembly; that those bodies thus became “parties” to the contract in 1954 and to the breach by their actions in 1972 and following. Finally, the record includes a letter signed by the Associate Stated Clerk of the Church, dated April 2, 1971, and addressed to a presbyterian minister in Taylor Ridge, Illinois, wherein it is stated that “the Presbytery must dissolve any pastoral relationship”; that approval of such dissolution should be made known in advance to various parties; and that he approved of the congregation’s willingness to pay plaintiff’s salary through December 31, 1971.

As to Thompson, plaintiff stated in his affidavit that he (Thompson) was present at a training session at Stronghold in Oregon, Illinois, from March 16 to 18, 1973; and that on March 18, plaintiff drove Thompson from Stronghold to Elgin, Illinois, while they “carried on the business of the United Presbyterian Church regarding [plaintiff’s] judicial case.” Finally, the record contains the notes of a telephone conference on September 27, 1976, concerning plaintiff, in which Thompson participated. Those notes state in substance that the General Assembly directed its Office to consult with and direct the “Presbytery of Great River (s)” to consider the standing of plaintiff as a minister and “to transmit any future communications and petitions” from plaintiff to the General Assembly back to plaintiffs presbytery “without attention or comment.” Thompson also took part in the discussion of various courses of action concerning plaintiff during that conference.

In contrast to plaintiff’s position, Thompson stated in his affidavit that except for a brief period he had never been a resident of Illinois. He did not deny, however, that he was never physically present in the State to transact the business of the Church or that he transacted it by telephone or mail. The affidavit also stated that the Church neither owned property nor maintained an office in the State, but it did not deny the claim that the Church transacts business here. Moreover, while Thompson stated that neither he nor the Church had contact with plaintiff regarding the termination, he did not negate his participation on behalf of the Church in the telephone conference with Church members in Illinois concerning plaintiff’s standing. The record also compels us to conclude that the Church guided and controlled the relationship between plaintiff and the congregation in all essential matters of the pastoral relationship and stood both as mediator and final arbiter throughout. Thus, we think it clear that defendants’ activities indicate a sufficiently close relationship to the litigation against them and, at least in part, gave rise to it. Requiring defendants to defend in Illinois is reasonable and consonant with the orderly administration of justice (Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228), and therefore, we hold that as the cause of action alleged herein arose from defendants’ activities in the State, in personam jurisdiction was present, and in view of the foregoing, we find that the trial court erred in quashing service of process. Inasmuch as the trial court’s dismissal of the action was based on lack of personal jurisdiction, it follows that this ruling also was error.

For the reasons stated, the orders are reversed and the case is remanded.

Reversed and remanded.

LORENZ and MEJDA, JJ., concur.

       Plaintiff filed a virtually identical complaint in the Federal District Court for the Northern District of Illinois on November 2,1979, but it was dismissed without prejudice.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 80-3001
    Opinion filed December 31, 1981.
    Jack P. Rimland, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard J. Cosentino, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In this appeal from a conviction and sentence for reckless homicide, the sole question raised is whether the trial court erred in refusing to suppress evidence of blood alcohol content from tests performed without defendant’s consent.

The record discloses that in September 1978, defendant was involved in an automobile accident in which there was a fatality. He was taken to a hospital, where the tests in question were performed. At the hearing on the motion to suppress any evidence concerning those tests, Dr. Leighninger, director of the hospital’s emergency room service, testified that he was informed by the doctor on duty in the emergency room that defendant had been in an automobile accident in which he had been knocked out; that he had abrasions over his forehead and a large knee laceration; and that he was wild, uncooperative, and semiconscious with the smell of alcohol on his breath. Dr. Leighninger directed the doctor on duty to take a number of X rays and to make a variety of laboratory examinations—including the blood alcohol content test. He testified that such test was required because with a severe head injury there is -a possibility of blood trauma to the heart or internal abdominal injury, and that the tests were necessary to interpret the physical evidence and the patient’s behavior in relation to such injuries. Dr. Leighninger gave his opinion that when the blood was extracted, defendant was conscious but not alert or cooperative and was probably incapable of giving consent .to the test. The motion to suppress was denied, and thereafter defendant was found guilty.

Opinion

Section 11—501(c)(3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—501(c)(3)), in effect at the time of the accident, provided in pertinent part that evidence based upon a chemical analysis of blood shall not be admitted unless the blood was taken and the analysis made with the consent of the person involved. It is the position of defendant that he did not consent to the taking of blood for the alcohol content test in question and, thus, that the evidence concerning it should not have been admitted. He cites four cases in support of his position, of which three were decided by the supreme court in the consolidated opinion of People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447. In each of those cases, it was held that evidence of blood alcohol content from an analysis of blood taken at the request of the police without the consent of the defendant was inadmissible. In the fourth case, People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497, evidence as to blood alcohol content was suppressed where the analysis was made from blood taken on the initiative of a doctor at the hospital where defendant was taken, but not at the request of the police.

The State, however, contends that the four cases cited by defendant are not controlling because in none of them was there evidence of a demonstrated medical necessity for the test. It argues, with no supporting authority, that if blood tests are taken “based on ample proof of their necessity for preserving life” the result should be admissible even though consent was not given. We disagree. Not only was each of the four cases cited above decided on the basis that defendant did not consent to the taking of the blood specimen, but in Weissinger the specimen was taken on the initiative of a doctor, presumably because it was medically necessary. There, as here, the State also contended that evidence as to the analysis of the blood should have been admitted because no State action was involved. That court, in affirming the refusal to admit such evidence, stated:

“The statute prescribes that evidence of such a test ‘shall not be admitted’ without consent. This protection for the defendant is absolute; it is not in any way conditioned upon participation by the State in the test procedures.”90 Ill. App. 3d 700, 702, 413 N.E.2d 497, 499.

We adopt this reasoning and hold that it was reversible error to admit evidence of the blood test results.

Reversed and remanded for a new trial.

LORENZ and WILSON, JJ., concur.


author: JUSTICE LORENZ

text:
    ROBIN WISEMANTLE et al., Co-Executors of the Estate of Melody Hamerla, Deceased, Plaintiffs-Appellees, v. HULL ENTERPRISES, INC., et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-3083
    Opinion filed December 31, 1981.

      James A. Romanyak and Ernst, Gallagher 61 Hannon, both of Oak Brook, for appellant Estate of Donald G. White.
    Susan E. Loggans and Associates and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

This interlocutory appeal (Ill. Rev. Stat. 1979, ch. 110A, par. 308) was filed to obtain review of an order denying a “Motion to Quash Summons” which was filed by First Bank and Trust Company of South Bend, Indiana (First Bank), in its capacity as executor of the Indiana domiciliary estate of Donald G. White. The executor’s motion asked the court to quash the summons which plaintiffs (Robin Wisemantle and Mary Garrett, co-executors of the estate of Melody Hamerla) had served upon Cleta M. Glenn in her capacity as administrator of the Illinois ancillary estate of Donald G. White. We find that the dispositive issue in this case is whether the service of summons upon the administrator of an ancillary estate constitutes service upon the representative of the decedent’s domiciliary estate. The answer is no, and we conclude that this appeal must be dismissed. The following facts are material to our decision.

1. Two airplanes collided while flying near Francisville, Indiana, on October 30, 1977, and all the occupants on both planes were killed. Melody Hamerla was a passenger on the plane piloted by John Herr, Jr., and Donald G. White, an Indiana resident, was the pilot of the other plane.

2. Hamerla’s will was admitted to probate in Illinois, in the Will County circuit court, and plaintiffs were appointed executors of her estate.

. 3. Omni Aviation Managers, Inc., an insurance claims adjustment company, offered plaintiffs $65,000 in return for a release of all claims which they had, as Hamerla’s representatives, arising out of the Indiana aircraft collision. Because there was a dispute over whether plaintiffs accepted this offer, both Omni and the estate of Herr petitioned the Will County court for an order compelling plaintiffs to accept the $65,000 and to execute a general release. Following a hearing, these requests were denied.

4. Donald G. White’s will was admitted to probate in Indiana, his domicile, and First Bank and Trust Company of South Bend, Indiana, was appointed executor of White’s domiciliary estate.

5. Plaintiffs petitioned the probate division of the Circuit Court of Cook County for an order opening an ancillary estate for White in Illinois, based on the allegations that (a) they were creditors of Donald G. White, and (b) White died leaving, as an asset in Illinois, a cause of action for indemnification against the insurance company which provided him with aircraft liability coverage. However, the only connection between this “asset” and Illinois is that the insurance company does business in Illinois.

Apparently without notice to White’s heirs or the executor of the Indiana estate, a judge of the probate division of the Circuit Court of Cook County issued an order opening an Illinois estate for Donald G. White and appointing, as administrator, Cleta M. Glenn. The validity of this order has not been challenged, and we treat it as valid.

6. Plaintiffs then filed a tort action in the Circuit Court of Cook County. The complaint accuses Donald G. White of negligently causing Hamerla’s death. The named defendants include “Cleta M. Glenn, Administrator of the Estate of Donald G. White, Deceased, [and] Gene R. Duffin, Personal Representative of the Estate of Donald G. White, Deceased.” However, First Bank is not named as a defendant in either its individual capacity or as the executor of the Indiana domiciliary estate.

Summons was served upon Glenn, the administrator of the Illinois ancillary estate, and the parties refer to this as the only summons served upon any representative of Donald G. White.

7. First Bank, the executor of the Indiana domiciliary estate, filed a special and limited appearance on behalf of “the Estate of Donald G. White” and moved to quash the summons which was served upon Glenn.

(We note that appellant’s main brief states that it has been submitted on behalf of “Defendant, Estate of Donald G. White,” but both the special appearance and the motion to quash were filed by First Bank, and we assume that the appellant is First Bank in its capacity as executor of White’s Indiana domiciliary estate. We also note that the only record reference to Gene R. Duffin is in the caption of the complaint, and he is not mentioned in the briefs.)

8. Following a hearing, the trial court denied First Bank’s motion to quash the summons served upon Glenn, and the court entered an order which includes the following discussion of the question of law which it certified for interlocutory appeal:

“Did the Elstate of Donald G. White, deceased, invoke the benefits and protections of the Illinois courts by means of the petition of Omni Aviation, Inc., in the Probate Proceedings in the Circuit Court of Will County?
If the petition had been successful, the clear result would have been that the probate court would have ordered [plaintiffs] to . accept the $65,000 and execute releases to the Estate of White and the Estate of Herr. It appears to this court that Omni Aviation was acting for and on behalf of the Estate of White in seeking to invoke the benefits and protections of Illinois courts. Accordingly, this court finds that it does have jurisdiction [over] the Estate of White e # * 99

On appeal, First Bank argues (1) that White’s domiciliary estate did not enter a general appearance in the Will County probate proceedings; and (2) it is not permissible, under the due process clause of the fourteenth amendment (U.S. Const., amend. 14), for a State court to assert jurisdiction over a foreign estate when (a) the only connection between the forum and the foreign estate is that the decedent’s insurance company does business in the forum State, and (b) the cause of action does not arise out of this connection with the forum State.

Plaintiffs argue that (1) the estate of Donald G. White “conferred jurisdiction on the Illinois courts” because of the petition which Omni Aviation filed in the Will County proceedings; (2) the motion to quash the summons which was served upon Glenn was an improper collateral attack on the order appointing Glenn the administrator of the Illinois estate; and (3) it is proper to open an ancillary estate in Illinois when a decedent’s insurance company does business in Illinois.

Opinion

The parties to this appeal have assumed that service of summons upon the administrator of an Illinois ancillary estate constitutes service of summons upon the executor of the decedent’s foreign domiciliary estate. Plaintiffs’ brief states that “[S]ervice was made on the Administrator of the Estate of White in Illinois [that is, on Glenn] on November 2, 1979. Thus, personal jurisdiction has been attained as to the Estate of White by service upon the administrator of his estate.”

Summons, of course, is not served directly upon an estate. “Estates” are not natural or artificial persons, and they lack legal capacity to sue or be sued. (Estate of Godair v. Case (1920), 220 Ill. App. 348, 349.) That is why an action against an estate must be brought against an administrator or executor as the representative of the estate. (See 31 Am. Jur. 2d Executors & Administrators §713 (1967).) Thus the complaint in this case names Cleta M. Glenn and Gene R. Duffin as defendants in their purported capacity as representatives of “the Estate of Donald G. White.” (Emphasis added.) Plaintiffs clearly consider White as having a single unified estate, and the parties have not considered the significance of the distinction between a decedent’s domiciliary and ancillary estates.

A decedent may have an estate in each jurisdiction in which he or she left property. (2 Horner, Probate Practice & Estates §773, at 1 (4th ed. 1975).) The estate established by the jurisdiction where the decedent was last domiciled is the “domiciliary estate,” and any estate created by any other jurisdiction is “ancillary.”, (2 Horner, Probate Practice & Estates §773, at 1 (4th ed. 1975); 34 C.J.S. Executors & Administrators §989(a), at 1233-34 (1942).) Despite the fact that several estates may represent the same decedent, “[i]t is textbook law that ‘administration in each state, whether principal or ancillary, is separate and complete in itself. Legally each local administration is wholly independent of the others * * *.’ ” (Currie, The Multiple Personality of the Dead: Executors, Administrators, and the Conflict of Laws, 33 U. Chi. L. Rev. 429,430 (1966).) Thus there is no privity between a decedent’s domiciliary and ancillary estates (2 Horner, Probate Practice & Estates §773, at 1 (4th ed. 1975)), and a judgment against the representative of one of the decedent’s estates is not binding on the decedent’s other estates or representatives. Probate Practice & Estates §829, at 82 (4th ed. 1975); 31 Am. Jur. 2d Executors & Administrators §756, at 309 (1967); Annot, 3 A.L.R. 64 (1919).

As the supreme court explained in McGarvey v. Darnall (1890), 134 Ill. 367, 370, 25 N.E. 1005,

“The doctrine is well settled, that if letters of administration are granted in different States to different persons, in respect to [the] estate left by the same deceased person, there is no privity between such administrators, and that therefore a judgment against the administrator in one State is not competent testimony to show a right of action against either a domiciliary or ancillary administrator in another State, or to affect assets in such other State.”

The necessary corollary of this rule is that service of summons upon an ancillary administrator does not constitute service upon the representative of the domiciliary estate. This principle is illustrated in Harris v. Chicago Title & Trust Co. (1930), 338 Ill. 245, 170 N.E. 285, where, as in this case, the decedent had both a foreign domiciliary estate and an Illinois ancillary estate, but plaintiff only obtained jurisdiction over the administrator of the Illinois estate. As the supreme court pointed out, “The Illinois administrator was made a party and appeared, but it was not the general representative of the estate and could not bind it by any appearance or action other than in respect to property over which it could exercise control.” 338 Ill. 245, 265.

In the present case, summons was properly served upon the administrator of the Illinois ancillary estate, but we conclude that this did not constitute service of summons upon the executor of the Indiana domiciliary estate. Neither the Indiana domiciliary estate nor its representative would be bound by a judgment against the administrator of the Illinois ancillary estate, and the executor of the Indiana estate has no standing to move to quash the summons which was served upon the administrator of the Illinois estate.

First Bank, the Indiana executor, has not been served with summons, and it is not even named as a defendant in plaintiff’s complaint. The motion to quash the summons which was served upon the administrator of the ancillary estate simply does not present a justiciable question or controversy relating to the rights of either the Indiana executor or the Indiana estate.

Because the executor’s motion to quash did not present a justiciable matter, the circuit court did not have subject matter jurisdiction to rule on the motion. (Ill. Const. 1970, art. 6, §9.) Consequently, this appeal must be dismissed.

Dismissed.

MEJDA and WILSON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY ROSS, Defendant-Appellant.
    First District (5th Division)
    No. 80-3134
    Opinion filed December 31, 1981.

      James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Casimir J. Bartnik, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant was convicted of burglary after a bench trial and was sentenced to a term of three years. On appeal, he contends that he was not found guilty beyond a reasonable doubt and that this matter should be remanded for a new sentencing hearing because no presentence report was made.

The complaining witness (Clara Morton) testified that at about 11:40 a.m., when she left her third floor apartment at 716 South Keeler, both the front and back doors were locked. Upon her return about 5 p.m., she visited her mother, who lived on the first floor, and at that time defendant lived in an apartment across the hall from her mother. At about 8 p.m., she returned to her own apartment, where she noticed a piece of the inside door latch on the floor and then saw that her stereo was missing. She immediately called her landlord, because she had left her keys with her mother for him to check the water in her apartment; but he denied having any knowledge of the missing stereo. The police were called, and after she informed them that her stereo had been stolen, they took her in their car to the next block, where she viewed a stereo in an open trunk of a parked Cadillac. It was the only item in the trunk, and she identified it as hers because “a piece of the knob was broken, and a cloth part was torn and on the turntable I had ‘Flashlight’.” She testified that defendant and another man were in the Cadillac and also that in the back yard of her apartment building there were “bags of garbage, things that people I guess had thrown—emptied out.”

Police officer Tencza testified that at approximately 9 p.m. he responded to a call about a burglary at 716 South Keeler, and upon his arrival observed a red Cadillac leaving that location, with objects in an open trunk. He stopped the car and defendant, who was a passenger in the car, told him the stereo equipment in the trunk was found in the alley near 716 South Keeler. While other officers stayed with the occupants of the Cadillac, Tencza went to 716 South Keeler and, after conversing with Clara Morton, drove her back to the location of the Cadillac. He testified that he had examined the stereo and noticed that the record “Flashlight” was on the turntable. Tencza identified defendant in court as the passenger he had seen in the Cadillac.

After the trial court found defendant guilty, he waived a presentence investigation report and was sentenced to three years.

Opinion

Defendant contends that he was not found guilty beyond a reasonable doubt because his conviction was based solely upon the presumption that exclusive and unexplained possession of recently stolen property is sufficient to prove burglary.

Recently, in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, our supreme court re-evaluated its prior decisions permitting an inference of guilt from the exclusive and unexplained possession of recently stolen property, in light of the analysis of criminal presumptions in County Court of Ulster County v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, and it determined that without corroborating evidence “the presumption standing alone does not prove burglary beyond a reasonable doubt,” for “the person in exclusive possession may be the burglar, to be sure, but he might also be a receiver of stolen property, guilty of theft but not burglary, an innocent purchaser without knowledge that the item is stolen, or even an innocent victim of circumstance.” (84 Ill. 2d 415, 423, 420 N.E.2d 151, 155.) The Housby court further concluded that on the basis of County Court, the presumption does not violate due process if (1) there is a rational connection between defendant’s recent possession of property stolen in the burglary and his participation in the burglary; (2) defendant’s guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of the proceeds; and (3) there is corroborating evidence of defendant’s guilt.

Here, in determining whether the presumption was proper, we first consider whether there is a rational connection between defendant’s recént possession of property stolen in the burglary and his participation in the burglary. We find the factual situation in the present case similar to that in People v. Johnson (1981), 96 Ill. App. 3d 1123, 422 N.E.2d 19, where the victim had been absent from her apartment from November 10 to the evening of November 11, 1979, and returned to find most of her possessions missing. The defendant in that case was subsequently found in possession of some of the victim’s property on November 12. The court found there was no rational connection between defendant’s possession and the burglary, noting that there was a lack of any evidence that defendant had entered the apartment; that no attempt was made by the State to prove a forcible entry; that since defendant was a stranger, he must have entered by forcible means—of which there was no evidence; and that the victim told the police she thought her landlord had taken her furniture because she was behind on her rent. In the case before us, while defendant was found in possession of stereo equipment which Clara Morton identified as hers, we are of the belief that on the basis of the facts in the record there is a question, as in Johnson, as to whether there was even an unauthorized, forcible entry into Clara Morton’s apartment. Although she testified that she had locked both the front and back doors before leaving her apartment, she stated that upon her return a piece of the inside door latch was on the floor, but she said that she had to unlock the door and “then you had to push it kind of hard to get inside of it.” Furthermore, after she noticed her stereo missing, she immédiately called her landlord because she had given him permission to enter her apartment the day of the burglary in order to check the water in the apartment and had given keys to her mother to give to him for that purpose. We also note the lack of any evidence that defendant entered her apartment or that he was in the building during the hours in question.

In People v. Moore (1981), 98 Ill. App. 3d 507, 424 N.E.2d 751, this court found the presumption of guilt properly applied where a strong rational connection was established on the basis of a close relationship in time between the burglary and possession. There, the timé was a significant factor because the police arrived on a burglary in progress call and shortly thereafter found defendants in possession of the stolen goods. In the present case, it was about 9 p.m. when the police arrived in response to a call of burglary and found defendant in possession of the stereo, but the time of the burglary was never determined and could have taken place at any time between 11:40 a.m. and 8 p.m. In light of the above, we find that the rational connection requirement of the Housby analysis was not satisfied.

In discussing the second portion of its analysis, the Housby court considered factors which made it unlikely that the defendant was an innocent victim of circumstance, and in approaching this part of the test in a like manner, we too are unable to say that it is “more likely than not” that defendant’s unexplained and exclusive possession of recently stolen property was the result of burglary. We note in this regard that although defendant was not alone in the car containing the stolen stereo, joint possession with others can be exclusive possession within the rule. (People v. Wheeler (1955), 5 Ill. 2d 474, 126 N.E.2d 228; People v. Umphers (1971), 133 Ill. App. 2d 853, 272 N.E.2d 278.) Here, while the car containing the missing stereo was stopped by the police shortly after they observed it leaving 716 South Keeler, we do not believe this testimony to be particularly significant since defendant lived in the same building. Moreover, although he was found in possession of the stereo a short time after the police were called, the crime could have occurred at any time during the previous nine hours. Additionally, defendant’s possession was not entirely unexplained, as the police officer testified that defendant said the stereo had been found by him and the driver of the Cadillac in the alley behind 716 South Keeler, where the officer did observe debris and old furniture, and the complaining witness testified that the area was filled with garbage and things that people had emptied out.

The State, however, contends that this explanation is so implausible that it reasonably could be determined to be false, which it argues under Housby would be corroborative of the inferences arising from the possession. We do not believe that this alone is sufficient to satisfy the third Housby requirement, even assuming the first two portions of the test had been satisfied. While, in its discussion of corroborating circumstances, the Housby court did state that sufficient corroboration is present where the trier of fact reasonably finds defendant’s explanation to be false, the statement was made in the context of a number of other corroborating factors. Here, we find the facts to be no stronger than those in People v. Phoenix (1981), 96 Ill. App. 3d 557, 421 N.E.2d 1022, where this court found insufficient corroboration in defendant’s explanation that he had purchased the stolen property, a rototiller, from others at such a low price as to make it obvious that it had been stolen, and he and others had been seen placing the rototiller at the location where it was found by the police at an unusual time of night. As stated in Phoenix:

“Under the evidence the court could have concluded beyond a reasonable doubt that the rototiller was obtained either by burglary or by purchase knowing it had been stolen. But, under the Housby rule, the reasonable possibility that the property had been taken by others and sold to defendants precluded defendants’ guilt of burglary from being inferred. For this reason the burglary, convictions are reversed but the felony theft convictions are affirmed.” 96 Ill. App. 3d 557, 560, 421 N.E.2d 1022, 1026.

We do not view, as the State suggests, that People v. Langston (1981), 96 Ill. App. 3d 48, 420 N.E.2d 1090, and People v. Moore, concerning which we briefly commented above, are controlling, as the corroborative evidence of guilt was greater in each case.. In Langston, defendant was present at the scene within the time that the burglary occurred and, when stopped by the police, he was nervous but seemed relieved when informed that the stop was for a traffic violation. Not only did he know the victim personally but he also had an opportunity to view the contents of her apartment prior to the burglary, and his explanation that he purchased the stolen goods in a parking lot behind the apartment building could be judged incredible in the light of the other evidence. In Moore, the police came upon defendants while responding to a burglary in progress call, and they observed defendant Madlock passing a battery charger through the door of defendant Moore’s house to another person and, after noting more battery chargers, some tools, and other automotive equipment in front of the house door, they entered and found both defendants inside. In addition, the items were taken from a building separated by an alley from the Moore house where a window screen had been removed for entry, and defendants were observed by others carrying some of the items through the alley to the door of the Moore house. Here, the only significant corroborative evidence was the fact that the stereo was in the Cadillac; but, even then, it was in plain view in an open trunk, and the car in which defendant was a passenger immediately stopped upon the signal of the police.

For the above reasons, we conclude that the Housby requirements were not met and that defendant’s guilt has not been proved beyond a reasonable doubt. Although both parties agree that People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, requires that this cause be remanded for resentencing with a presentence report, since we reverse defendant’s burglary conviction, no action need be taken concerning resentencing.

Reversed.

LORENZ and WILSON, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. JOHN GUTENKAUF et al., Defendants-Appellants.—(FIREMAN’S FUND INSURANCE COMPANY, Plaintiff-Appellee, v. JOHN GUTENKAUF et al., Defendants-Appellants.)
    First District (5th Division)
    No. 80-3244
    Opinion filed December 31,1981.
    Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Jill B. Berkeley and Stephen R. Swofford, of counsel), for appellee Allstate Insurance Company.
    Touhy and Martin, Ltd., of Chicago, for appellee Fireman’s Fund Insurance Company.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants appeal from an order granting plaintiffs’ motions for summary judgment in an action for declaratory judgment, contending (1) that the trial court erred in finding that two homeowners insurance policies issued by plaintiffs excluded coverage for injuries sustained in a boating accident; and (2) that defendant John Gutenkauf complied with the notice provisions of both policies.

According to the deposition testimony of defendant John Gutenkauf, he owned a home in Norridge, Illinois, which was covered by a homeowners policy issued by Allstate Insurance Company. He also owned a residence on Sunday Lake, in Minoqua, Wisconsin, insured by a homeowners policy issued by Fireman’s Fund Insurance Company, and jointly owned a second lot on Sunday Lake with two other family members. The latter property was vacant, except for picnic tables and a fireplace, and functioned as the main recreational area. There was a pier approximately 30 feet long and 4 feet wide, which ran perpendicular to the shoreline off the vacant lot in an east-west direction, and a raft 30 to 40 feet from the end of the pier. To the north of the pier the shore is sandy, while to the south it is “maybe rocky or—grassy.” Gutenkauf owned a 17-foot power boat with a 110 horsepower inboard-outboard motor—the only power boat owned by any of the families—which he operated on Sunday Lake and usually docked on the south end of the pier.

On July 4,' 1970, John Gutenkauf had been using his boat on Sunday Lake for about three hours, going out and back pulling different water-skiers and, on his return from one such trip, he positioned his power boat about 10 to 15 feet from shore in front of the vacant lot on the north side of the pier for the purpose of towing additional skiers. The boat was perpendicular to the pier, the stern was about 6 to 8 feet from the pier on the north side, and his daughter Carrie Ann was standing in about 30 inches of water about 4 feet behind the boat, waiting to ski. His other daughter, Jackie, and Gary Basset were also standing in the water. He left the engine running and, while he was adjusting the second tow line in the back of the boat, his 2-year-old son, who had been seated next to him in the passenger seat of the boat, threw the control lever which controlled the speed and direction of the boat into reverse. The boat lurched backward, striking Carrie Ann and injuring her.

Approximately one week later, John Gutenkauf called his Allstate agent and, after explaining the circumstances of the accident, was told by the agent that he did not think it was covered by the homeowners policy. Within three weeks, he also went to the agency where he had obtained his Fireman’s Fund policy and, after reporting the occurrence, was informed by an employee of that office that she did not think there was coverage under that policy.

It appears that there was no further contact between plaintiffs and John Gutenkauf until 1976, when his daughter Carrie Ann brought an action against him through her mother and next friend, Lorraine Gutenkauf, for personal injuries arising out of the accident. His tender of the defense of that action was accepted by plaintiffs under a reservation of all rights under their policies. Plaintiffs then filed separate declaratory judgment actions against John Gutenkauf, his wife, and his daughter— seeking a determination of the rights and liabilities of the parties with

respect to the policies. Thereafter, the two actions were consolidated— following which defendants filed motions for summary judgment and plaintiffs then filed countermotions for summary judgment.

The trial court granted plaintiffs’ countermotions, ruling that the accident came within the watercraft exclusions of the policies. The court, however, made no ruling as to whether John Gutenkauf had given notice of the accident, as required by the policies.

Opinion

It is the contention of defendants that each of the homeowners policies covered John Gutenkauf’s liability for damages because of Carrie Ann’s injuries. They argue that summary judgment was improperly entered because the watercraft exclusions were inapplicable since the accident occurred on the “premises,” as that word is used in the policies.

Each of the policies provides coverage from all damages which the insured was legally obligated to pay because of bodily injuries sustained by any person, but each also contains what is termed a watercraft exclusion. Thus, the Allstate policy excludes coverage for injury arising from the “ownership, maintenance, operation, use, loading or unloading of any: * * * (c) watercraft, while away from the premises, if (1) with inboard or inboard-outboard power exceeding 50 horsepower, * ° (Emphasis added.) The policy defines “premises,” in pertinent part, as all one-family dwellings where an insured maintains a residence, vacant land owned by an insured, and private approaches and other premises incidental to those premises. The Fireman’s Fund policy also excludes coverage for bodily injury or property damage “arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft: (1) owned by or rented to any Insured if the watercraft has inboard or inboard-outboard motor power of more than 50 horsepower * s but the exclusion does not apply to “bodily injury or property damage occurring on the residence premises.” (Emphasis added.) Under the policy, “residence premises” is defined, in pertinent part, as “a one or two-family dwelling building, appurtenant structures, grounds and private approaches thereto.”

Thus, as presented by the parties, the resolution of the coverage question depends on whether the situs of Carrie Ann’s injuries was on “premises” as that word is used in the policies. In the consideration of this question, we have found that the Illinois courts have not previously construed the term “premises” in conjunction with the watercraft exclusion typically found in homeowners insurance policies. Although the interpretation of the term was at issue in United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203, and in General Casualty Co. v. Olsen (1977), 56 Ill. App. 3d 986, 372 N.E.2d 846, neither case is particularly helpful here. In Schnackenberg, which involved a bicycle accident in an intersection 2%. blocks from the Schnackenberg home, the court focussed primarily on the definition of “the ways immediately adjoining,” a phrase included within the definition of premises in the insured’s homeowners policy; and in Olsen, where injuries were sustained in a minibike accident on a dirt track, the court determined that the phrase “away from the premises” meant “not logically connected with the area utilized for the residential uses of the insured” but, in so doing, stated that its holding was limited to the facts of that case and noted that the meaning of “premises” in one connection may be radically different in another.

It appears, however, that the interpretation of a watercraft exclusionary clause similar to the one in the instant case was addressed by the Supreme Court of Minnesota in Torbert v. Anderson (1974), 301 Minn. 339, 222 N.W.2d 341. There, the plaintiff, while swimming near a raft in a Minnesota lake, was struck by a boat owned by Anderson and operated by his son, who had come from the Anderson cabin across the lake to pick up a friend. A homeowners policy provided coverage for injuries arising from accidents on the insured premises or out of the activities of the insured, but it did not cover “ownership, maintenance, operation, use, loading or unloading * * * of watercraft owned by or rented to the Insured, while away from the premises * * (Emphasis added.) “Premises” was defined as “the premises described in the Declarations, including grounds, garages, stables and other outbuildings incidental thereto, and private approaches thereto.” It was contended by Anderson that the lake was a private approach to his cabin and, thus, that the occurrence was on the premises and not within the watercraft exclusion. The court found that because the plain meaning of “private approaches” did not include the lake, the exclusion was applicable.

Here, the occurrence took place 10 to 15 feet from the shoreline while Carrie Ann was standing in the water. Although the facts of Torbert do not indicate how far plaintiff there was from the shore when struck by the boat, we do not believe any distinction in that regard is of significance because Carrie Ann was neither standing on Gutenkauf’s private property nor touching the pier or raft structures owned and maintained by the family. Defendants do not contend, as did the plaintiff in Torbert, that the entire lake is included in the “premises,” and they argue that the place of the accident was so connected with the use of the Gutenkauf home that it was a part of the premises. Thus, in effect, defendants contend that the premises extended at least 15 feet into the lake—which, of course, would render the watercraft exclusion inapplicable. It. appears to us, however, that to define a portion of the lake as premises would involvé an arbitrary line-making decision which could lead to further line drawing extensions. As reasoned by our supreme court in Schnackenberg, “[i]f defendants’ interpretation the coverage clause were adopted, the ‘insured premises’ definition would be rendered meaningless for there would be no geographical limit to coverage and liability for conduct ° 88 Ill. 2d 1, 8.

Furthermore, after a review of cases from other jurisdictions, we do not believe that the lake area in front of defendants’ vacant lot constitutes a “private approach” as that phrase is used in the policy definitions of premises.

In Guice v. MFA Mutual Insurance Co. (La. App. 1981), 395 So. 2d 934, plaintiff argued that a motorcycle injury which occurred on a logging road which ran across a corner of her property and continued across the property of others may be construed as a private approach. Insured’s homeowners policy excluded coverage for bodily injury arising out of the “ownership, maintenance, operation, use, loading or unloading of” any recreational vehicle owned by insured if the injury occurred “away from the premises,” and residence premises was defined in that policy as “a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto.” The court stated that “private” could mean either exclusively used by the insured or it could mean private as distinguished from public, and in characterizing the logging road as private adopted the second interpretation, reasoning that ambiguities are construed in favor of the insured and exclusionary clauses are to be strictly and narrowly construed. The court then noted the following:

“ ‘Approach’ is defined by dictionaries as a means of access. The policy provision defines residence premises as a dwelling, appurtenant structures, grounds and ‘private approaches thereto’. (Emphasis supplied). This phrase denotes means of access to the dwelling, appurtenant structures and grounds of the insured. It denotes an approach or access reasonably and ordinarily necessary or incidental to the use and enjoyment of the insured’s residence property.” (395 So. 2d 935, 936.)

In finding that the logging road was not a private approach as contemplated by the policy, it reasoned:

“It obviously exists as a means of access to other property and only incidentally crosses the rear of plaintiff’s six-acre tract. The regular approach or access, as those terms are commonly used, to plaintiff’s property is from a public road running in front of the home. The logging road was not designed as a means of access to plaintiff’s property nor is it a means of access reasonably or ordinarily necessary or incidental to the use and enjoyment of the insured’s residence.” 395 So. 2d 935, 936.

Additionally, in Continental Insurance Co. v. Thompson (N.D. Okla. 1972), 356 F. Supp. 560, the interpretation of the term private approach was also at issue. There, insured’s homeowners policy provided coverage for a dwelling located on the west side of a tract of land but did not cover a filling station owned by insured on the east side of the property. An accident occurred on the driveway of the service station, which was open to the public and was being utilized by the public, next to a gasoline pump. The court found that because the station was open to the public, the driveway constituted a “public driveway” rather than a “private approach.”

In the present case, John Gutenkauf testified that Sunday Lake is a public lake and that he has no property interest in any portion of the ground under the water. Furthermore, we do not believe that the portion of the lake where the accident occurred was a means of access which is “reasonably or ordinarily necessary or incidental to the use and enjoyment of the residence.” Defendants’ properties are located on Sunday Lake Road, on a peninsula extending into the lake, and there has been no indication by defendants that they do not regularly approach the lots from the road. In any event, there is nothing in the record to indicate that the lake was ever used as an approach.

We next address defendants’ alternative argument, that the term “premises” is ambiguous and should be construed in their favor.

In Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 371, 418 N.E.2d 744, 747, it was stated:

“In interpreting a contract of insurance the general rule is that where the provisions of a policy are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning.”

The insurance contract should be read as a whole in order to determine whether an ambiguity exists, and the court should not search for an ambiguity where there is none. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1.) However, where an ambiguity is found to exist in an insurance policy, it must be construed in favor of the insured. Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921.

The term “premises” has generally been held to be unambiguous and is usually found to refer to a fixed situs, but may include private approaches and other areas necessary or incidental to an insured’s operations. (7A Appleman, Insurance Law and Practice (Berdal ed.), §4500.02 (Berdal ed. 1979).) Although defendants here have not explained how the word “premises” is ambiguous as applied to the facts of this case or as contained in plaintiffs’ policies, they have referred us to a number of cases in support of their position.

In Morris v. Western Casualty & Surety Co. (Mo. App. 1967), 421 S.W.2d 19, plaintiff (an electrical contractor) sought coverage under a manufacturers’ and contractors’ liability policy for electrical shock injuries sustained by one of his customers as a result of alleged faulty wiring of customer’s home. The policy covered “Premises-Operations,” which was described as “the ownership, maintenance or use of premises, and all operations.” On the basis of its finding that the word “premises” was not defined or otherwise restricted in the policy, the court held that the policy was ambiguous and construed its terms against the insurer.

In Shelman v. Western Casualty & Surety Co. (1977), 1 Kan. App. 2d 44, 562 P.2d 453, a construction company in the process of building a highway bridge contracted with defendant’s insured (a barge operator) to ferry equipment across the river on a barge. During the loading operation, plaintiff (an employee of the highway company) was injured. The policy contained a watercraft exclusion clause stating that coverage would not apply to the “ownership, maintenance, operation, use, loading or unloading of (1) watercraft * a * if the accident or occurrence takes place away from premises owned by, rented to or controlled by the named insured * * Defendant’s denial of coverage presented an issue as to whether the accident occurred on premises controlled by the insured; but, because the policy neither defined the word “premises” nor listed the premises owned, controlled or rented by the insured, the reviewing court adopted the findings of the trial court which distinguished cases in which the term was clearly defined and then held that the policy was not so unambiguous that the term could be clearly limited to insured’s principal base of operations.

The third case cited by defendants in support of their position is General Casualty Co. v. Olsen, which we have referred to above. There, a minor was injured while riding a minibike on a dirt track used for the operation of minibikes, which was partially located on insured’s property but extended over adjacent nonowned property to the border of a railroad’s property. The minor lost control of the bike while on the dirt track and ran into a fence which separated the nonowned lot and the railroad property. The exclusion in the homeowners policy provided that it does not apply to “bodily injury or property damage arising out of the maintenance or use of any recreational motor vehicle if the bodily injury or property damage occurs ‘away from’ the ‘residence premises,’ ” and premises is defined as “a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto ° ° The court found under the facts of that case, where the track was used in its entirety for insured’s residential recreational purposes and where the injury was causationally connected, that “the policy exclusion at issue here dealing with the interpretation of the words ‘away from’ and the definition of ‘residence premises’ is, in fact, ambiguous,” and the court determined that under the facts there, the terms meant “not logically connected with the area utilized for the residential uses of the insured.” 56 Ill. App. 3d 986, 990, 372 N.E.2d 846, 850.

In Morris and Shelman, the term “premises” was found ambiguous in policies which did not define or in any way limit it, unlike the policies in question here, and in all three cases there were findings of ambiguity as applied to factual settings—quite unlike the present case. We are thus unpersuaded by defendants’ argument and do not find the cases relied on by defendants controlling of the factual situation before us.

Moreover, it is noteworthy that the obvious purpose of the watercraft exclusion in the homeowners policy was to limit the scope of liability for boating injuries. Both homeowners policies specifically exclude liability coverage for watercraft related accidents away from the premises for boats with inboard-outboard motors over 50 horsepower and for sailboats over 26 feet in length or sailboats with motors exceeding 25 horsepower. As explained in Torbert v. Anderson (1974), 301 Minn. 339, 343, 222 N.W.2d 341, 344, “[t]he nature of homeowners policies is consistent with coverage for boat-related accidents on the premises, regardless of the horsepower of the motor. The horsepower of a motor makes it more dangerous only when away from shore or dock. Marine insurance riders in homeowners policies are available for those who purchase or rent boats with large motors.”

Accordingly, we are of the belief that the watercraft exclusions in the policies here are applicable and, on that basis, summary judgment was properly entered in plaintiffs’ favor. In view thereof and because the trial court did not rule on the issue of notice, we find it unnecessary to address the question as to whether John Gutenkauf complied with the notice conditions of his homeowners policies.

Affirmed.

MEJDA and WILSON, JJ., concur.


author: JUSTICE WILSON

text:
    ARVADA GIRMAN, Adm’r of the Estate of George R. Girman, Deceased, Plaintiff-Appellee, v. THE COUNTY OF COOK, Defendant-Appellant.
    First District (5th Division)
    No. 81-0244
    Opinion filed December 31, 1981.
    Richard M. Daley, State’s Attorney, of Chicago, (Jane Clark Casey and Robert J. Tonos, Assistant State’s Attorneys, of counsel), for appellant.
    Benjamin and Shapiro, Ltd., of Chicago (Fred I. Benjamin, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Defendant Cook County brought this permissive interlocutory appeal from an order denying its motion to dismiss plaintiff’s wrongful death action. The basis for defendant’s motion was that plaintiff, as administrator of the decedent’s estate, had failed to comply with the requisite 1-year notice requirement of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 8—102 and 8—103). Consequently, plaintiff is alleged to be barred from maintaining the wrongful death action. The trial court denied the motion to dismiss, holding that the presence of two minor beneficiaries of the wrongful death action excused the notice requirement of the Local Governmental and Governmental Employees Tort Immunity Act. Defendant then filed for leave to appeal from that interlocutory order, which we granted, pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). We affirm.

Plaintiff filed her wrongful death complaint on September 8, 1980, within 2 years after the accrual of the cause of action. The only issue of this appeal is whether the wrongful death action against the county is absolutely barred by plaintiff’s failure to serve the county with notice within the 1-year period required by the Local Governmental and Governmental Employees Tort Immunity Act, or, whether the 1-year period is tolled as to the minor beneficiaries of the action. Notice provisions of the Local Governmental and Governmental Employees Tort Immunity Act provide, in pertinent part:

“Within 1 year from the date that the injury or cause of action * * * was received or accrued, any person who is about to commence any civil action for damages on account of such injury 099 must serve * * * a written notice on the Secretary or Clerk, as the case may be, for the entity against whom * * * the action is contemplated * *
“If the notice * * * is not served as provided ° ° any such civil action * * * shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.” Ill. Rev. Stat. 1979, ch. 85, pars. 8—102 and 8—103.

Defendant urges us to construe the “plain language” of the Act to bar the wrongful death action because the plaintiff never served the county with the required 1-year notice. Plaintiff takes the position, however, that the 1-year provision of the Act is inapplicable because two of the three beneficiaries of the wrongful death action are minors. (Plaintiff is the third beneficiary.)

To put the issue in its proper perspective, we first note that statutes of limitations are generally tolled during a plaintiffs infancy, mental incompetency, or imprisonment. (Ill. Rev. Stat. 1979, ch. 83, par. 22.) In the case of minors who are not legally competent to bring actions directly, the courts have recognized that the enforcement of a child’s rights should not “be left to the whim or mercy of some self-constituted next friend.” (McDonald v. City of Spring Valley (1918), 285 Ill. 52, 56, 120 N.E. 476, 478; see also Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784.) McDonald involved a governmental immunity provision similar to the one in issue. The statute required any person bringing a personal injury action against a city, village, or town to give written notice to the city within 6 months. Although the supreme court had earlier construed this notice requirement as being mandatory and a condition precedent to the right to bring suit (Erford v. City of Peoria (1907), 229 Ill. 546, 82 N.E. 374, overruled in Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 295-96, 348 N.E.2d 176, 181), in McDonald the the court held that the action of a minor was not barred by the failure to give notice. See also Haymes v. Catholic Bishop of Chicago (1965), 33 Ill. 2d 425, 211 N.E.2d 690 (notice requirement of the School Tort Liability Act was not binding on minor plaintiffs); cf. Lowrey v. Malkowski (1960), 20 Ill. 2d 280, 170 N.E.2d 147 (suit filed pursuant to Liquor Control Act was barred, even as to minors, by the failure to comply with the time limitation of the act because such time period was held to be a special limitation upon a purely statutory cause of action).

These cases, particularly McDonald, support the trial court’s judgment in denying defendant’s motion to dismiss. Defendant, however, contends that the pending case is controlled by Addison v. Health & Hospital Governing Com. (1977), 56 Ill. App. 3d 533, 371 N.E.2d 1060. In Addison, the administrator of an estate brought an action against a hospital to recover damages for the wrongful death of her daughter. The trial court granted defendant hospital’s motion to dismiss the complaint because of the administrator’s failure to comply with the applicable 1-year notice provision of the Local Governmental and Governmental Employees Tort Immunity Act. The appellate court affirmed despite plaintiff’s contention that the only beneficiary of the wrongful death action would be the minor child of the decedent. In attempting to distinguish such cases as McDonald and Haymes, the court stated that those cases are based on the theory that an exception for minors is necessary “to protect the minor’s interest and preserve his day in court.” (56 Ill. App. 3d 533, 535, 371 N.E.2d 1060, 1062.) The court then held that the right of action for wrongful death “accrued not to the minor beneficiary, but to the adult administrator.” (56 Ill. App. 3d 533, 535, 371 N.E.2d 1060, 1062.) The court’s reasoning indicates that since the burden of bringing suit rested solely upon the estate’s administrator, that party’s failure to comply with the 1-year notice provisions of the Local Governmental and Governmental Employees Tort Immunity Act necessarily barred the prosecution of the wrongful death action.

We find the Addison decision inapposite. The Illinois Supreme Court, a year after Addison, rejected the theory that a wrongful death action with minor beneficiaries is. barred by an adult administrator’s failure to file the action within the 2-year limit of the Act. (Wilbon v. D. F. Bast Co., Inc. (1978), 73 Ill. 2d 58, 382 N.E.2d 784.) In Wilbon the administrator of an estate failed to timely file a wrongful death complaint against a private trucking company. The supreme court first reviewed and then disapproved the antecedents which had led to thé prevailing view that wrongful death actions had no basis in common law. The court then adopted the position that the 2-year limitation period of the Wrongful Death Act, as a limitation upon the remedy rather than the right of action, did not extinguish the minor beneficiaries’ right to relief, notwithstanding the estate administrator’s failure to timely file the action.

In light of Wilbon, defendant’s contention that the pending action is barred must be rejected. Although Wilbon did not involve an issue of governmental tort immunity, the supreme court did cite with approval its earlier decisions in Haymes and McDonald. As we have discussed, both of these cases held that notice requirements in immunity statutes similar to the instant one were inapplicable to minor plaintiffs. Consequently, these cases are dispositive on the construction of the Local Governmental and Governmental Employees Tort Immunity Act’s notice provisions.

We further note that cases decided after the Wilbon decision have continued to uphold the policy that protects minors from being deprived of an adjudication of their rights through no fault of their own. Thus, in Demchuk v. Duplancich (1981), 96 Ill. App. 3d 740, 422 N.E.2d 22, we held that the 1-year limitation on dramshop actions (compliance of which is a condition precedent to bringing the action) is inapplicable to the claims of minor plaintiffs during their minority. In Serafini v. Chicago Transit Authority (1979), 74 Ill. App. 3d 738, 393 N.E.2d 1120, a case involving application of the 1-year limitation in the Metropolitan Transit Authority Act, we held that when a minor plaintiff is injured by the CTA’s alleged negligence, he can bring the action within 1 year from the date of injury or 1 year from the date of attaining majority.

In conclusion, to be consistent with these cases that preserve meritorious claims of minors who lack legal capacity to sue, we must hold that the plaintiff/administrator in the pending case can prosecute the wrongful death action for the benefit of the 2 minor beneficiaries. Therefore, we affirm the trial court’s order denying defendant’s motion to dismiss.

Affirmed.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE JIGANTI

text:
    BEVERLY BANK, Plaintiff-Appellant, v. OAK BROOK BANK, Defendant-Appellee.
    First District (4th Division)
    No. 81-476
    Opinion filed December 31, 1981.

      Joseph A. Coakley, of Chicago, for appellant.
    Reuben & Proctor, of Chicago (Don H. Reuben, James A. Klenk, and Andrew D. Eichner, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Beverly Bank, and the defendant, Oak Brook Bank, are Illinois banking corporations. Beverly Bank filed an action against Oak Brook Bank for damages resulting from a breach of contract, or in the alternative, for money had and received. A bench trial was held, and at the close of Beverly Bank’s case, the court entered judgment in favor of Oak Brook Bank. It found that under the contract Beverly Bank had an option which it failed to timely exercise. Beverly Bank on appeal contends that this finding was against the manifest weight of the evidence.

Oak Brook Bank made a loan in the amount of $600,000 to its customer, Phillip Grandinetti. Beverly Bank purchased a $50,000 interest in that loan and entered into a “loan participation agreement” with Oak Brook Bank. Robert Boucek, a vice-president of Beverly Bank, described a loan participation agreement as an agreement between two banks where one bank buys a portion of a loan made by another bank. In this type of situation, the bank making the loan, in this case the Oak Brook Bank, is referred to as the lead bank. The bank which purchases an interest in the loan is referred to as the participating bank. There is only one note and that extends between the borrower and the lead bank. Boucek then indicated that in the instant case the borrower on the loan as carried on Beverly Bank’s records was Grandinetti, not Oak Brook Bank.

The loan to Grandinetti and the loan participation agreement were both dated April 8, 1974. The loan participation agreement specifically provided that Oak Brook Bank made no representations and assumed no responsibility with respect to the collectability of the note.

Also on April 8, 1974, there was a conversation between representatives of Beverly Bank and Oak Brook Bank. No testimony as to the content of this conversation was introduced at trial. The following day a memorandum dated April 9, 1974, was sent from J. Robert Effinger of Oak Brook Bank to John H. Horrigan of Beverly Bank. It reads as follows:

“Thank you for your prompt, affirmative action on Phil Grandinetti and the $50,000 we asked you to carry for six (6) months. Mr. Grandinetti has signed a new note including the $50,000 which you have purchased with the $550,000 currently owing and the maturity of the loan is beyond the six (6) month carry we requested.
The borrower expects to repay $50,000 within six (6) months but if he does not, you have the option to either continue with the loan or have us repurchase the $50,000 at the six (6) month date. The rate will be l/2/o above prime, and, again, we appreciate your cooperation.”

The six-month date mentioned in the memorandum was October 8, 1974, and there is no indication that Beverly Bank contacted Oak Brook Bank on that date. However, the evidence shows that some time prior to October 23, 1974, an Oak Brook Bank vice-president, Charles E. Morris, had a conversation with a vice-president of Beverly Bank, H. E. Moon. Moon was advised that Grandinetti was not in a position to make the $50,000 payment to Oak Brook Bank and that if Oak Brook Bank repurchased the loan it would be placed in an overline position. In banking terms, that means that Oak Brook Bank would be lending Grandinetti more than 15% of its total capital and surplus. This is prohibited by State banking regulations.

On October 23, 1974, Beverly Bank notified Oak Brook Bank that pursuant to the April 9, 1974, memorandum, Beverly Bank was giving notice to Oak Brook Bank to repurchase the loan. On November 5,1974, Oak Brook Bank sent a memorandum stating that the repurchase would place Oak Brook Bank in an overline position and that it would appreciate Beverly’s continued participation. This action was filed on January 12, 1977.

In entering judgment for Oak Brook Bank on its motion at the conclusion of Beverly Bank’s case, the trial court stated that in its judgment, the repurchase agreement was an option contract which was not timely exercised by Beverly Bank.

Beverly Bank’s basic argument is that the trial court erred in finding that the contract, as evidenced by the April 9, 1974, memorandum between the parties, contained an option which Beverly Bank failed to exercise in a timely manner. It also appears that Beverly Bank is contending that the contract to be interpreted was an oral agreement between the representatives of the respective banks on April 8,1974, and not the memorandum of April 9,1974, which we recited in its entirety.

The standard of review to be applied in this type of situation was recently stated by the Illinois Supreme Court in Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43. The Kokinis court stated that in a bench trial, the defendant may at the close of the plaintiff’s case move for judgment in its favor. In ruling on the motion, “[t]he court must consider all of the evidence, including any favorable to the defendant, and is to pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence.” (81 Ill. 2d 151, 154, 407 N.E.2d 43, 44.) The decision of the trial court should not be reversed on appeal unless it is contrary to the manifest weight of the evidence.

If the contract to be interpreted is in fact the memorandum dated April 9,1974, the contract clearly states that Beverly Bank has “the option” to continue with the loan or have Oak Brook repurchase the loan “at the six month date,” that is, on October 8, 1974. There is no showing by Beverly Bank that it attempted to exercise its option to have Oak Brook Bank repurchase the loan “at the six month date.” The only evidence is that at an unspecified date prior to October 23, 1974, Oak Brook Bank notified Beverly Bank that Grandinetti could not make the payment and that Oak Brook Bank would, be in an overline position if it repurchased the loan. Illinois law clearly holds that “where one party gives an option to another, the acceptance, to be valid so as to conclude an agreement or contract between the parties, must, in every respect, meet and correspond with the offer 0 * (Morris v. Goldthorp (1945), 390 Ill. 186, 195, 60 N.E.2d 857, 861.) The court’s findings of fact that the contract, which specifically stated that Beverly Bank had an option, constituted an option contract and that the option had not been exercised at the six-month date were supported by the evidence and will not be reversed.

Beverly Bank’s other argument implies that the contract to be interpreted was an oral agreement between representatives of Beverly Bank and Oak Brook Bank which occurred on April 8,1974, a day before the date of the written memorandum. It must be remembered that neither of the parties to that conversation testified at trial. Under this contention, the memorandum of April 9, 1974, was an attempt to modify the oral agreement of the day before. The essence of this argument is that the parties agreed on April 8,1974, that Beverly Bank was to loan Oak Brook Bank the money for six months. Beverly Bank points to the memorandum which states in its first paragraph that Beverly Bank was asked to “carry” the Grandinetti loan for six months. The term “carry,” according to Beverly Bank, does not imply ownership but only a holding of an interest for a limited period of time. Beverly Bank contends that the memorandum varies the oral agreement because the first paragraph states that the Grandinetti loan is longer than the “six month carry we requested.” Beverly Bank argues that from this language the reasonable inference is that in the oral agreement Oak Brook Bank had asked for and received $50,000 for six months and that it was to be promptly repaid to Beverly Bank at the end of the six-month period. In fact, the loan was made to Grandinetti on April 8, 1974, and Beverly Bank signed the loan participation agreement on that day. Beverly Bank claims that it was only after the money was loaned that this memorandum came into effect and extensively changed the terms of the oral agreement. In Beverly Bank’s view the language in the second paragraph concerning the option becomes more understandable because that paragraph assures Beverly Bank that it will not be injured by the longer maturity in that Oak Brook Bank was going to repurchase the $50,000 loan whether or not Grandinetti paid it.

There are two responses to Beverly Bank’s contention. First, the trial court was well within its discretion in deciding that the contract to be interpreted was in fact the memorandum dated April 9, 1974, and, as we indicated above, there was abundant evidence for the court to interpret the contract as an option contract which was not properly exercised by Beverly Bank. Second, the facts in this case belie the contention of Beverly Bank. Loan participation agreements do not contemplate a situation whereby the lead bank guarantees another bank’s loan. Robert Boucek stated at trial that the borrower on the loan, as shown on Beverly Bank’s records, was Phillip Grandinetti. The loan participation agreement between Beverly Bank and Oak Brook Bank specifically provided that Oak Brook Bank did not guarantee payment.

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

Affirmed.

ROMITI, P. J., and LINN, J., concur.


author: JUSTICE MEJDA

text:
    RICHARD L. RUSSO, Plaintiff-Appellant, v. JOHN BOLAND et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2786
    Opinion filed January 8,1982.
    William M. Doty, Jr., of Chicago, for appellant.
    J. Peter Dowd, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff brought an action against defendants seeking specific performance of an alleged insurance contract and damages. Defendants filed a motion to dismiss the complaint pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). The court granted defendants’ motion and plaintiff appeals.

The issues raised on appeal are: (1) whether the supersedure and deemer provisions of the Employee Retirement Income Security Act (ERISA) §514 (29 U.S.C. §1144(a), 1144(b)(2)(B)(1976)) apply to the defendant trust, pre-empting the application of the Illinois Insurance Code here; and (2) whether the Insurance Code of the State of Illinois is applicable to a self-funded trust established by a labor organization and employers through the negotiation process.

Plaintiff filed a complaint against defendants for specific performance and damages. The complaint alleged in pertinent part that defendant Boland (Boland) is the administrator of defendant Chicago Plastering Health & Welfare Trust (the Trust), a not-for-profit association engaged in the business of underwriting certain policies of health, medical and major medical insurance for its members. The complaint further alleged that plaintiff was seriously and permanently injured on June 10, 1975, while pursuing his trade as a plasterer. At the time of his injury, plaintiff had been a long-time member of the union for whose benefit the Trust had been established. As a result of these injuries, plaintiff was unable to work as a plasterer. The Trust notified plaintiff that if he desired to maintain the major medical and hospitalization insurance previously maintained by him, he would have to make a partial payment of the premium individually. The complaint further alleged that plaintiff made this required payment in April 1976 and thereafter in April 1977,1978 and 1979. However, on August 24, 1979, Boland advised plaintiff that he was terminated from insurance coverage and that the Trust refused to underwrite major medical and hospitalization insurance for plaintiff. Plaintiff also alleged that due to the nature and extent of the injuries he sustained, he is unable to obtain major medical and hospitalization insurance for himself and his dependents from any other company. Plaintiff further alleged that defendants’ actions violated certain provisions of the Illinois Insurance Code which according to him provide that every group policy providing health insurance coverage shall have a conversion provision by which a converted policy shall issue to the member previously insured by a group policy without evidence of insurability and upon payment of the required premium (Ill. Rev. Stat. 1979, ch. 73, par. 979e) and further that a “Company” includes a “* * * corporation, company, partnership, association, society, order, individual * * (Ill. Rev. Stat. 1979, ch. 73, par. 614.) Plaintiff alleged that defendants failed to issue such converted policy and, finally, that he has no adequate remedy at law.

The complaint prayed the court to order and require Boland to issue the policy and the Trust to underwrite it; to enter an order “declaring that defendant [Trust] is liable, under the terms and conditions of * * * its agreement for all'amounts paid by the Plaintiff 000 for major medical and hospitalization care from and including the date of termination of said policy by the Defendants and each of them to the date of issuance of a new policy of insurance”; for costs and attorney fees and for such other relief as the court deemed proper. Attached to the complaint was a photocopy of the April 1979 payment of $815 tendered to defendants and returned by them to plaintiff, and a photocopy of a letter from Boland to plaintiff explaining that the Trust would be unable to provide plaintiff with a conversion privilege as it was self-funded as of April 1, 1977, and no insurance company was involved.

Defendants filed a motion to dismiss alleging that the Trust is an employee benefit plan established by employers in the plastering industry and the Journeymen Plasterers’ Protective and Benevolent Society of Chicago, Local No. 5, of the Operative Plasterers and Cement Masons International Association of the United States and Canada, a labor organization. The motion further alleged that the provisions of State law relied on in plaintiff’s complaint are inapplicable to the Trust because (1) the State statute is pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA), section 514(b)(2)(B) (29 U.S.C. §1144(b)(2)(B) (1974)) as amended; and (2) the benefits available through the Trust are not provided through a group insurance policy, but paid solely out of Trust assets, and thus the Trust is neither an insurance company nor association subject to regulation under the State insurance statute cited by plaintiff.

Attached to defendants’ motion to dismiss and incorporated by reference were an affidavit of Boland and the amended trust agreement for the Trust. Boland’s affidavit recited that the Trust is funded by contributions received from employers in the plastering industry pursuant to collective bargaining agreements; that it is self-funded, benefits being paid out of plan assets to eligible employees and dependents; that the plan does not purchase a group insurance contract from an insurance company, nor does it offer insurance contracts to participants; that the trust fund qualifies as an employee welfare trust under §501 (c)(9) of the Internal Revenue Code (I.R.C. §501(c)(9)); that the Trust is not authorized to sell insurance policies or to provide benefits to persons not meeting the eligibility requirements for participation as an employee or dependents of an employee. The motion further alleged that plaintiff was denied eligibility for benefits from April 1979 because he did not work in covered employment during the 1978 calendar year; he was not an employee or member on April 1,1979, insofar as (a) he was not employed by a contributing employer, (b) he was not seeking work with contributing employers in the industry, as evidenced by his withdrawal from the Union, (c) he was not a pensioner, and (d) he had severed his connection with the trade by the lump sum withdrawal of his accumulated pension benefits and withdrawal from the Union. Plaintiff did not file any counteraffidavit to defendants’ motion to dismiss.

The trial court granted defendants’ motion. Although the court’s order did not recite the reasons for dismissal, plaintiff states in his brief that the basis of the court’s order was the pre-emption of the Illinois Insurance Code by provisions of ERISA (29 U.S.C. §§1144(a), 1144(b)(2)(B), (1976)). Plaintiff appeals.

Opinion

Plaintiff asserts that the allegations recited in defendants’ motion and affidavit raise additional factual issues which were improperly considered by the trial court in ruling on the motion. Although defendants’ motion to dismiss did not specify the specific Civil Practice Act provision on which it was based, it was apparently brought under subsection 48(1) (i), which allows for the dismissal of an action based on the assertion of affirmative matter which does not appear on the face of the complaint. (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(i).) This subsection is limited by the basic rule that a motion to dismiss admits all well-pleaded facts, but it does not admit conclusions of law, nor conclusions of fact unsupported by allegations of specific fact upon which such conclusions rest. (Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 401 N.E.2d 1235.) The alleged affirmative matter asserted to defeat the claim or demand must be something more than evidence offered to refute a well-pleaded fact in the complaint, for such well-pleaded facts must be taken as true for purposes of a motion to dismiss. (Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 405 N.E.2d 1256.) To defeat a claim or demand under subsection 48(1) (i) the alleged affirmative matter must negate the cause of action completely or refute crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. (Austin View Civic Association; see John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148.) A careful review of defendants’ motion shows that no facts were asserted in defendants’ motion contradicting those raised in plaintiff’s complaint. Rather, the motion raised as affirmative matter a question of law—the applicability of ERISA’s pre-emption provisions here. Therefore, despite plaintiff’s suggestion to the contrary, defendants’ motion raises a legal defense which could defeat plaintiff’s entire claim and hence was properly considered under subsection 48(1) (i).

We next consider whether the trial court properly dismissed plaintiff’s complaint because of the pre-emption provisions found in section 514 of ERISA (29 U.S.C. §1144 (1976)), preliminarily noting that although plaintiff’s brief suggests that the Trust is not an employee welfare benefit trust within ERISA’s scope, plaintiff conceded in oral argument that the Trust is an employee welfare trust within the scope of ERISA.

Section 514 of ERISA contains four clauses especially pertinent here. It contains a supersedure clause which provides that all State laws are superseded insofar as they relate to employee benefit plans. (29 U.S.C. §1144(a) (1976); Wadsworth v. Whaland (1st Cir. 1977), 562 F.2d 70, cert. denied (1978), 435 U.S. 980, 56 L. Ed. 2d 72, 98 S. Ct. 1630.) The supersedure provision is modified, however, by a “saving” clause which states that “* * * nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” (29 U.S.C. §1144(b)(2)(A) (1976).) The “saving clause” is in turn limited by a “deemer” provision which provides that no employee benefit plan (with certain limited exceptions not applicable here) nor any trust established under such a plan shall be deemed an insurance company or other insurer for purposes of any law of any State purporting to regulate insurance companies or insurance contracts. (29 U.S.C. §1144(b)(2)(B) (1976).) For purposes of the pre-emption provisions found in section 514, “State law” includes State court decisions. 29 U.S.C. §1144(c)(l) (1976); Eversole v. Metropolitan Life Insurance Co. (C.D. Cal. 1980), 500 F. Supp. 1162, 1167.

Plaintiff asserts that pre-emption is hot clearly mandated in the instant case because under the “saving” clause (29 U.S.C. §1144(b)(2)(A) (1976)), pre-emption is not required where the subject matter is insurance, and that the Trust is in effect an insurance plan and hence subject to State regulation. Plaintiff points to no provision of the Illinois Insurance Code which specifically states that the Code is applicable to an employee welfare benefit trust. Rather, plaintiff argues that the Trust comes within the definition of “company” found in the Code and therefore the Code is applicable to the Trust. Clearly, the thrust of plaintiff’s complaint is to have the State court construe the Illinois Insurance Code so as to bring the Trust within its scope and regulation. Plaintiff further argues that the decision he seeks does not impose State regulation of a pre-empted area, but only permissibly indirectly regulates an employee welfare benefit plan, citing Wadsworth v. Whaland (1st Cir. 1977), 562 F.2d 70. Wads-worth is distinguishable, however, in that the welfare plans involved were the purchasers of group policies from insurance carriers. The State law in question regulated group policies in general. The court held that the deemer provision (29 U.S.C. §1144(b)(2) (B) (1976)) does not prevent a State from indirectly affecting plans by regulating the contents of group insurance policies purchased by the plans.

Whether or not pre-emption is mandated here turns on a consideration of the deemer clause of section 514. In Wadsworth the court pointed out that “[t]he deemer clause simply provides that a state may not deem an employee benefit plan to be an insurance company, insurer, or in the business of insurance for the purposes of its insurance laws. Consequently, a state may not regulate an employee benefit plan simply because the plan serves as self-insurer on all of its benefits.” (Emphasis added.) (562 F.2d 70, 77.) Defendant trust against which plaintiff brings his action is such a self-insurer. In the case of St. Paul Electrical Workers Welfare Fund v. Markmam (D. Minn. 1980), 490 F. Supp. 931, the district court held that employee benefit plans which, as in the instant case were established by collective bargaining between unions and employers and were self-insurers, were not subject to regulation by State law, because of the broad pre-emption encompassed by 29 U.S.C. §1144 (1976). In St. Paul Electrical Workers Welfare Fund the Minnesota Comprehensive Health Insurance Act of 1976 (Minn. Stat. §62E.01 et seq.) contained a provision whereby employee welfare benefit plans were deemed self-insurers. The court held that deeming the plans self-insurers and thereby subjecting them to State law was direct and not indirect regulation. Accordingly, plaintiff here is no less asking for direct regulation, because he is asking the State court to deem the Trust an insurance company so it may be brought within the scope of the Illinois Insurance Code and its conversion policy requirements. Thus, plaintiff’s action, which seeks to directly regulate the defendant trust, is barred by the pre-emption provisions found in 29 U.S.C. §1144 (1976). General Split Corp. v. Mitchell (E.D. Wisc. 1981), 523 F. Supp. 427.

Finally, in his reply brief, plaintiff suggests that State regulation here would only supplement the protection provided by ERISA. That argument must fail, however, because where Congress expressly pre-empts an area, no supplemental State regulation is permitted. General Split Corp.; see Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 91 L. Ed. 1447, 67 S. Ct. 1146.

For the reasons cited herein, the judgment of the circuit court is affirmed. '

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.