author: PRESIDING JUSTICE MILLS

text:
    NATIONAL MARINE SERVICE INCORPORATED, Plaintiff-Appellant, v. THE ENVIRONMENTAL PROTECTION AGENCY et al., Defendants-Appellees—(Illinois-American Water Company, Intervenor-Appellee).
    Fourth District
    No. 4—83—0306
    Opinion filed December 20, 1983.

      Harley Hutchins and Sheldon Karasik, both of Mayer, Brown & Platt, of Chicago (Brown, Hay & Stephens, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellees Environmental Protection Agency and Richard J. Carlson.
    Eugene H. Bernstein and Mark C. Furse, both of Isham, Lincoln & Beale, of Chicago, for appellee Illinois-American Water Co.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Barge fleet.

Certification by the Illinois EPA sought.

It was denied.

Circuit court held it had no jurisdiction.

We cannot agree.

We reverse and remand.

A complaint was filed against the Illinois Environmental Protection Agency seeking a declaratory judgment, injunctive relief, and writ of certiorari. The suit challenged the Illinois Environmental Protection Agency’s (IEPA) denial of Federal Clear Water Act, section 401, certification pertaining to plaintiff’s proposed barge fleeting facility. IEPA then filed a motion to dismiss based on lack of subject-matter jurisdiction and was joined in the motion by intervenor. The motion to dismiss was granted by the circuit court and this appeal follows.

I. The Facts

On March 20, 1981, National Marine Service Incorporated applied to the United States Army Corps of Engineers for a dredge and fill permit pursuant to section 404 of the Federal Water Pollution Control Act amendments of 1972 (33 U.S.C. sec. 1344 (Supp. I 1977)). Plaintiff sought this permit in order to construct a barge fleeting facility on Chouteau Island in the Mississippi River. As part of the permit process, the plaintiff also applied for certification from the IEPA. The IEPA denied certification on April 28, 1982, and on October 20, 1982, plaintiff filed a complaint for declaratory judgment, injunctive relief, and writ of certiorari in the circuit court alleging that the IEPA had misinterpreted Federal law and had misapplied State law in denying certification. On January 4, 1983, the IEPA filed a motion to dismiss, alleging that the circuit court lacked subject matter jurisdiction. Then on February 17, 1983, Illinois-American Water Company filed a petition to intervene. The motion was allowed and intervener joined in the motion to dismiss for lack of subject matter jurisdiction.

On March 8, 1983, the trial court issued a memorandum opinion allowing the motion to dismiss, stating:

“The court finds that review of decisions by the Illinois Environmental Protection Agency taken under section 4(m) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1981, ch. HV-k, par. 1004(m)), to determine whether or not to certify compliance with the provisions of the Federal Clean Water Act, (33 U.S.C. 1251, et seq.), are reviewable under the Illinois Administrative Review Act, (Ill. Rev. Stat. 1981, ch. 110, pars. 3— 101, et seq.), and that such decisions to certify vel non must be reviewed according to the procedure set forth therein as modified by and in accordance with Sec. 41 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1981, ch. IIIV2, par. 41), and that this court is without jurisdiction of the instant cause.”

This appeal challenges that judgment.

II. The Statutes

Seldom does a term of court pass but that we are called upon to supply a missing rafter, joist, or east wall of the house of IEPA. The blueprints for the repair here are found among several State and Federal statutes which we will now discuss.

Section 404 of the Federal Clean Water Act (33 U.S.C. sec. 1344 (Supp. I 1977)) (FCWA) requires that prior to discharging dredge or fill material into navigable waters, companies must procure a dredge and fill permit from the United States Army Corps of Engineers. Section 401 of the FCWA (33 U.S.C. sec. 1341 (Supp. I 1977)) (section 401 certification) provides that no permit may be issued by the Corps unless the State where the construction is to take place first certifies that any discharge which may emit from the site is within tolerances set by various sections of the FCWA and any other appropriate requirements of State law. Section 4(m) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. UlVz, par. 1004(m)) (Act) designates the IEPA as the water pollution agency for all purposes of the FCWA. It also empowers the IEPA to take all appropriate actions to properly integrate State and Federal efforts at pollution control. Section 41 of the Act (Ill. Rev. Stat. 1981, ch. HV-ri, par. 1041) adopts the provisions of the Administration Review Law as controlling judicial review:

“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of, pursuant to the provisions of the ‘Administrative Review Act,’ approved May 8, 1945, as amended and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court. Review of any rule or regulation promulgated by the Board shall not be limited by this section but may also be had as provided in Section 29 of this Act.
* * *
No challenge to the validity of a Board order shall be made in any enforcement proceeding under Title XII of this Act as to any issue that could have been raised in a timely petition for review under this Section.”

Supreme Court Rule 335 (87 Ill. 2d R. 335) establishes the procedures to be followed when the appellate courts review cases pursuant to the Administrative Review Law.

The single narrow question before this court is to whom a party— who is denied section 401 certification by the IEPA — should appeal the denial on the grounds that IEPA considered improper matters in its certification process and also misinterpreted the scope of section 401 of the FCWA. Stated otherwise, did the circuit court have jurisdiction by virtue of the plea for common law certiorari'? This is a question of first impression in Illinois.

III. The Potential Reviewing Bodies

The parties in their arguments suggest several forums in which plaintiffs might seek review.

A. FEDERAL COURTS

It appears certain that parties to section 401 certification procedures cannot appeal to the Federal courts. Several Federal district courts have denied a Federal forum to similarly situated parties. In Roosevelt Campobello International Park Com. v. United States Environmental Protection Agency (1st Cir. 1982), 684 F.2d 1041, the Federal court of appeals agreed that “the proper forum to review the appropriateness of a state’s certification is the state court,” noting that “federal courts and agencies are without authority to review the validity of the requirements imposed under state law or in a state’s certification.” (684 F.2d 1041, 1056.) Since Federal courts will not review State agencies’ certification decisions, the review must be had at the State level if it is to be had at all. The parties in this appeal variously argue that the proper forum for the appeal is the Pollution Control Board (PCB) (defendants’ position and intervenor’s alternate position No. 1) or the Appellate Court of Illinois (intervenor’s alternate position No. 2) or the circuit court (plaintiff’s position). Let us look at them.

B. POLLUTION CONTROL BOARD

Both the intervenor and the defendants suggest that review of certification denials might properly lie with the PCB. Neither offers any controlling authority for this position. Both rely on public policy arguments and the efficiencies to be gained from maintaining an integrated front in the war against pollution. Plaintiff responds that the PCB is without authority to review section 401 procedures, has previously refused to hear similar cases, and has been sustained in this position by the Appellate Court of Illinois.

(1) THE PEABODY COAL CASE

In Peabody Coal Co. v. Pollution Control Board (1977), 49 Ill. App. 3d 252, 364 N.E.2d 929, the issue was the propriety of the PCB’s dismissal of a request to have the Board review the IEPA’s denial of a State certification which petitioner had sought in order to obtain a National Pollutant Discharge Elimination System permit (NPDES) pursuant to section 402 of the FCWA (33 U.S.C. sec. 1342 (Supp. I 1977)). At the time of the appeal, the actual permits were issued by the Federal government contingent on State certification. The entire NPDES program has since been taken over by the State of Illinois. The PCB refused to hear the appeal, reasoning that the Federal government was the sole source of the permits and that no statutory authority existed which would confer jurisdiction of these matters on the PCB. The appellate court upheld the PCB’s determination that it lacked jurisdiction in this matter. The court was of the opinion that the proper course was an appeal under section 509 of the FCWA (33 U.S.C. sec. 1369 (1976)) which provided for review of NPDES proceedings. There is no similar provision for review of section 404 permit procedures, which is the issue before the court in this case.

Both the intervenor and defendants attempt to distinguish Peabody on the basis of the types and numbers of permits that were sought. Intervenor argues that Peabody Coal was also seeking State permits, which meant that the PCB was able to pass on the petitioner’s pollution potential despite the fact that it lacked jurisdiction to decide whether the IEPA had properly granted State certification without a hearing. This is a distinction without merit since it is apparent that the finding of lack of jurisdiction was based on the Federal nature of the permit and stood on its own. The lack of a jurisdictional basis was independent of any further participation in the permit proceedings by the PCB.

Defendants’ attempt to distinguish Peabody is similarly unsatisfactory. The IEPA’s position is that since the court was of the view that Federal procedures were available to review NPDES procedures, but none are now available to review section 401 certificates, Peabody is “outmoded and inapplicable today.” In other words, they would distinguish Peabody on the basis that the availability of a Federal forum there made it appropriate for the PCB to refuse to review the EPA’s decision but that since no Federal forum is available to plaintiff here, the PCB is the appropriate body to which to turn.

Both of these arguments miss the thrust of Peabody which appears to us to be that the PCB, as a creature of the legislature, is bound by its legislative grant of power. We read Peabody as holding that where a Federal permit system is at hand, the PCB, absent a statutory grant of power, is without authority to become involved in reviewing the State certification process which must be followed before a Federal permit may issue. This reading is consistent with the restrictive view of the PCB’s authority to oversee the IEPA’s activities which was noted by our supreme court in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258. The court there specifically spoke to the relationships between the PCB and the IEPA when viewed in the context of their respective roles. The court stated:

“The argument [concerns] the statutory roles of the Board and the Agency in relation to permits. The Board’s principal function is to adopt regulations defining the requirements of the permit system [citation]. The Agency’s role is to determine whether specific applicants are entitled to permits [citation]. The need for a technical staff capable of performing independent investigations dictates that the job of administering the permit system be entrusted to the Agency rather than the Board [citation]. If the Board were to become involved as the overseer of the Agency’s decision-making process through evaluation of challenges to permits, it would become the permit-granting authority, a function not delegated to the Board by the Act.” (74 Ill. 2d 541, 557, 387 N.E.2d 258, 264.)

In light of Landfill, Peabody is properly read as holding that the PCB is without authority to hear an appeal from a denial of section 401 certification.

Intervenors also launch a broadside fusillade against Peabody, arguing that it was wrongly decided by both the PCB and the court and should be overruled or ignored. The argument is that the court failed to perceive the proper integration of authority in the certification process as reflected by the State and Federal statutes. Intervenors apparently find immaterial the fact that there is no statutory authority for PCB review of IEPA certification. As the preceding discussion illustrates, this court views the powers of the PCB as limited by státute. We find therefore that where a permit may be granted by the Federal Government only after State certification, the PCB is without authority to review the agency’s denial of the certificate, absent a specific grant of such authority.

Defendants make a collateral argument dealing with Peabody, which also revolves around the types of permits sought in that case as opposed to the permit sought in this case. Defendants feel that since Peabody deals with NPDES permits, and the instant case deals with section 401 certification and dredge and fill permits, petitioner was bound to approach the PCB with its appeal of the denial of the certification in an effort to exhaust its administrative remedies. In defendants’ view, the failure to approach the PCB with its request is fatal to petitioner’s cause based on the exhaustion doctrine. (See Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 326 N.E.2d 737.) This argument fails because under our view of Peabody there was simply no further administrative remedy to exhaust. It would be wasteful to force them to take their appeal to the PCB only to be denied a forum due to lack of jurisdiction. There is no statutory authority calling upon them to take their complaint to the PCB. The decision not to appeal to the PCB was based on a good-faith attempt at reading and following court precedents. A trip to the PCB would have been both wasteful and futile — considering the decision in the Peabody case.

Intervenor also argues that since the permit process is indistinguishable from the certification process, section 40 of the Act should be read to call for Pollution Control Board review of section 401 certification even though such review is not part of the statute. Section 40 of the Act (Ill. Rev. Stat. 1981, ch. 111%, par. 1040) empowers the Board to review cases wherein the IEPA has denied specific enumerated permits which are listed in section 39 of the Act (Ill. Rev. Stat. 1981, ch. 111%, par. 1039). The State certificate and Federal permit sought in this case are not among those enumerated. This argument again runs aground of the restricted view Illinois courts take of the powers of administrative agencies. In White Fence Farm,

Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370, the court clearly indicated its view that the PCB, like any other administrative agency, has no greater powers than those the legislature has given it. Since the PCB has not been empowered to review section 401 certification denials, this court will not grant the power through judicial fiat.

(2) VARIANCE PROCEEDINGS

The final path which would lead plaintiff to the PCB is suggested by defendants. In their view, plaintiff might have sought a variance from the sections of the Act which the IEPA felt might be violated by plaintiff’s activities. But the argument seems to be based on a misconception of variance procedures. The power to grant variances is set out in section 35 of the Act (Ill. Rev. Stat. 1981, ch. HV-lz, par. 1035) which provides that variances may be granted by the PCB when it is found that “compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship.” In the instant case, plaintiff does not complaint about the existence or propriety of a PCB rule or regulation or a requirement or order of the PCB. Rather, plaintiff complains of the way in which the IEPA interpreted regulations in denying certification. We simply fail to see how a variance would have ever allowed plaintiff to air its grievances.

As the preceding discussion makes clear, we find no merit to any of the arguments which would have taken plaintiff to the PCB for review of a denial of section 401 certification.

(C) ILLINOIS COURTS OF APPEAL

The third suggested forum for review of the denial of section 401 certification is the Illinois courts of appeal. IEPA argued at the hearing that since the effect of a denial of section 401 certification is that the United States Army Corps of Engineers is precluded from granting a dredge and fill permit, the denial of certification was in essence the denial of a permit. Their view is that the denial of this certification is a denial under the Act since the plaintiff herein is a “person who has been denied a variance or permit under the Act.” This triggers section 41 of the Act (Ill. Rev. Stat. 1981, ch. 11IV2, par. 1041) which calls for appeals from denials of permits under the Act to be had pursuant to the Administrative Review Law, but places such appeals in the appellate, as opposed to the circuit, courts. In this appeal, the agency has admitted that “technically, a State permit is not in question here” and has dropped this argument. Intervenor has, however, raised this argument and now urges that section 41 of the Act be applied to this case.

In dismissing plaintiff’s suit, the circuit court reasoned that section 41 set forth the method of appeal in this case and that the plaintiff had failed to meet the time of filing requirements. Section 41 of the Act (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1041) specifically adopts the Administrative Review Law (HI. Rev. Stat. 1981, ch. 110, pars. 3— 101 through 3 — 112) providing that review shall be in the appellate court for the district in which the cause of action arose and not in the circuit court. Section 41 does not, however, adopt the Administrative Review Law as a means of review for every action taken pursuant to the Environmental Protection Act but is limited to appeals by “[a]ny party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board ***.” (Ill. Rev. Stat. 1981, ch. HV-k, par. 1041.) In intervenor’s view, the IEPA has denied plaintiff a permit under the Act by denying section 401 certification.

Plaintiff’s response here is similar to its response to the arguments noted above which would have taken it to the PCB. Plaintiff argues that the statute sets out the specific parties who may seek review. It contends that it is not among those parties and therefore may not seek review before the appellate court. Plaintiff claims it is not included on the list since it has never been a party to a PCB hearing, nor has it been denied a permit or variance under the Act. Inter-vener then responds that since the Corps of Engineers cannot issue a Federal permit without State certification, plaintiff has been denied a permit under this Act by virtue of the fact that the IEPA has been appointed the water pollution agency for certification purposes.

It seems clear to us that permits and certificates are two different breeds of animal. Black’s Law Dictionary defines a certificate as a written assurance, or official representation, that some act has or has not been done, or some event occurred, or some legal formality has been complied with. (Black’s Law Dictionary 205 (5th ed. 1979).) Black’s defines a permit as, in general, any document which grants a person the right to do something, a license or grant of authority to do anything. Black’s Law Dictionary 1026 (5th ed. 1979).

We note in this case that even if plaintiff had been certified, no construction could have begun until a permit was issued by the United States Army Corps of Engineers. The Corps is bound to carry out full hearings and fact finding before the issuance of the permit and cannot blindly rely on State findings. (See Sierra Club v. United States Army Corps of Engineers (2d Cir. 1983), 701 F.2d 1011.) Plaintiff was not denied a permit.

Illinois courts have also adopted the rule that the expression of one thing in the statute which precludes the inclusion of others does so unless such a construction would defeat the plainly indicated purpose of the law-making body. (See, e.g., City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill. 2d 609, 162 N.E.2d 345.) In this case, the legislature has expressly limited the application of the Administrative Review Law to specific enumerated actions taken by the Pollution Control Board. This effectively excludes actions taken by the IEPA. No plainly indicated purpose of the legislature would be contravened by finding that the appellate courts are not the proper body to review section 401 certification denials.

In fact, the appellate courts are particularly unqualified to hear these proceedings since the certificates may be granted or denied without a hearing and there may be no record on which to base review. (See 5 Ill. Reg. 7899 (July 31, 1981).) This would arguably place the appellate court in the position of becoming a fact-gathering and fact-finding body since there could arise a situation where no record would be available upon which a reasoned decision may be made. We will not create such an intolerable situation.

Finally, section 41 of the Act became effective in 1970. The FCWA became effective in 1972. Prior to 1972 there was no section 401 certification procedure. It hardly seems likely to us that the legislature could have intended to establish review procedures for a legislative scheme which was not even in existence at the time the statute was passed. The intervenor admits that the legislature could not have contemplated review of section 401 certification but urges this court to judicially legislate such review into the Act.

We decline the intervenor’s offer to become a super legislature by appointing ourselves as the reviewing body for denial for section 401 certificates.

(D) THE CIRCUIT COURTS

Plaintiff filed its complaint in the circuit court relying for jurisdiction on a writ of common law certiorari. The circuit court held that the Administrative Review Law applied but that the case was not timely filed since it was beyond the 35-day limit. Neither of the parties opposing plaintiff argue that certiorari is improper if neither the PCB nor the appellate court can hear this action. As the previous discussion indicates, we are of the opinion that the PCB was without statutory authority to review IEPA determinations and that section 41 of the Act did not contemplate section 401 certification denials so that the appellate courts are also without authority to review the procedures.

Where the Administrative Review Law is not applicable to administrative decisions, the writ of common law certiorari survives as an available means of review. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286.) Similarly, where the provisions of the Administrative Review Law do not apply to a given hearing, the 35-day time limits for review are also inapplicable. (Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636.) Plaintiff here filed his complaint on October 20, 1982. The IEPA had denied certification on April 28, 1982. No cases indicating the exact limitations period for the appeal of the administrative decisions of agencies which are not covered by the Administrative Review Law were found. Nonetheless, this cause may be viewed as an independent civil action. Civil actions which are not otherwise provided for must be filed within five years from the time that the cause of action arose. (Ill. Ann. Stat., ch. 110, par. 13 — 205, at 246 (SmithHurd Supp. 1982).) Since the cause was filed within five years, the action was properly before the circuit court. The decision to dismiss the complaint as not timely filed was in error.

Therefore, we reverse the decision of the trial court and remand the cause for proceedings pursuant to common law certiorari to determine whether the IEPA acted properly in denying plaintiff’s application for section 401 certification.

Our disposition of this case renders moot the other arguments raised by plaintiff before this court.

Reversed and remanded.

GREEN and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    WILBUR SPONEMANN et al., Plaintiffs-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 82—665
    Opinion filed December 6, 1983.
    Dunham, Boman & Leskera, of Belleville (John W. Leskera, Robert D.

      Francis, and Russell K. Scott, of counsel), for appellants.
    Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiffs appeal from the trial court’s judgment in favor of the defendant insurance company in the plaintiffs’ action upon the uninsured motorist clause of an automobile insurance policy issued by the defendant. The trial court found that the plaintiffs’ action was barred by a two-year limitation period provision contained in the policy and that the defendant was not estopped from asserting this provision as a defense to the plaintiffs’ action. Upon consideration of the record we find that the trial court’s decision was contrary to the manifest weight of the evidence on the issue of the defendant’s estoppel to assert the policy limitation provision. We accordingly reverse the judgment of the trial court and remand this cause for further proceedings.

On August 26, 1972, the plaintiffs, Wilbur, Frieda, Susan and Peggy Sponemann, were involved in an automobile accident in Craig County, Oklahoma, with a motorist named Joseph Hajjar. At the time of the accident the plaintiffs were insured under a policy of insurance issued by the defendant, Country Mutual Insurance Company, which provided uninsured motorist protection to the plaintiffs.

An investigation initiated by the defendant upon being notified of the accident revealed that Hajjar was uninsured at the time of the accident and that he had recently moved from New York to California to commence work. Based upon this information, the defendant’s claimsman, Darrell Tripp, concluded in a report to his supervisor that the plaintiffs would be making an uninsured motorist claim to the defendant. Tripp met with the plaintiffs periodically in the months following the accident, and payments were made to the plaintiffs by the defendant under the personal injury protection provision of the policy.

In the spring of 1974 the plaintiffs retained attorney John Leskera to represent them on their claim for uninsured motorist benefits. Leskera notified the defendant of his representation on March 6, 1974, and, on March 18, 1974, claimsman Tripp contacted Leskera, offering to discuss the plaintiffs’ claim when he had secured sufficient medical information. Tripp advised Leskera that he was awaiting receipt of a medical report from Dr. Semon, who had recently operated on Frieda Sponemann.

On August 20, 1974, before Dr. Semon’s report was received, the plaintiffs filed suit in Oklahoma against the uninsured motorist, Joseph Hajjar. The defendant had requested the plaintiffs to file this action prior to the running of the two-year statute of limitations on the plaintiffs’ cause of action in order to protect the defendant’s sub-rogation rights against Hajjar.

Tripp received Dr. Semon’s report on Frieda Sponemann on December 24, 1974, and the report was forwarded to Leskera. On January 17, 1975, Tripp met with the plaintiffs and Leskera to negotiate a settlement of the plaintiffs’ uninsured motorist claim. The parties were unable to come to an agreement regarding this claim, and, on that same date, Leskera wrote to the defendant demanding arbitration of the plaintiffs’ claim.

In March 1975 Victor Rochelle, claims attorney for the defendant, wrote to Leskera indicating that there was a dispute regarding the plaintiffs’ coverage under the uninsured motorist provision that would have to be resolved before arbitration could proceed, as arbitration concerned only the issues of liability of the uninsured motorist and the extent of damages. The parties held further negotiations in August 1975 to discuss settlement of the coverage issue as well as the liability and damages issues.

Upon failure of the parties to reach a settlement, the defendant sought and obtained leave to intervene in the plaintiffs’ suit against Hajjar in Oklahoma. In its petition in intervention, filed October 7, 1975, the defendant denied both the plaintiffs’ injuries and Hajjar’s negligence and alleged that plaintiff Frieda Sponemann was guilty of contributory negligence that proximately caused the accident. The defendant also filed a cross-claim against the uninsured motorist Haj-jar, claiming its right to subrogation and indemnity in the event the defendant became liable to the plaintiffs under the uninsured motorist provision of their policy.

On October 23, 1975, the plaintiffs filed the instant declaratory judgment action in Illinois. In their complaint the plaintiffs alleged the applicability of the uninsured motorist provision of the policy and the defendant’s refusal to arbitrate upon written demand by the plaintiffs. The defendant filed a motion to dismiss this action on the grounds that the demand to arbitrate was not timely filed within the two-year limitation period contained in the policy.

In January 1977 the defendant amended its petition in intervention in the Oklahoma action, alleging that the plaintiffs’ cause of action against Hajjar was barred by the Oklahoma statute of limitations because Hajjar had not been served within two years of the accident. The amendment also stated that the plaintiffs’ action against the defendant was barred by failure to comply with the provisions of the plaintiffs’ policy. The Oklahoma court, in July 1977, granted summary judgment for the defendant insurance company, finding that the action against Hajjar was not timely filed in Oklahoma and that the plaintiffs’ claim was not commenced within the limitation period contained in the policy.

The defendant then sought to assert the Oklahoma judgment as a bar to the plaintiffs’ declaratory judgment action in Illinois. The trial court granted the defendant’s motion for summary judgment based on the res judicata effect of the Oklahoma judgment. On appeal this court in Sponemann v. Country Mutual Insurance Co. (1981), 98 Ill. App. 3d 352, 424 N.E.2d 416 (Sponemann I), reversed the trial court’s grant of summary judgment, holding that the Oklahoma judgment did not have res judicata effect as to the defendant’s policy limitation defense and that the trial court erred in dismissing the plaintiffs’ action without giving them an opportunity to show that the defendant’s actions estopped it from asserting the policy limitation provision as a defense.

Upon remand the plaintiffs filed a third amended complaint in which they alleged that the defendant had engaged in a course of conduct “calculated to lull the plaintiffs into a reasonable belief that their claim for uninsured motorist coverage would be settled without arbitration.” Specifically, the plaintiffs asserted that the defendant had discussed settlement of the plaintiffs’ claim with their attorney both before and after expiration of the policy limitation period and had further “required and induced plaintiffs to file an action against the uninsured motorist Hajjar in Oklahoma.” Because of the defendant’s conduct encouraging delay in the filing of their demand for arbitration, the plaintiffs contended, the defendant was equitably estopped from asserting the two-year limitation provision of the policy.

At a hearing on the complaint held July 21, 1982, the defendant’s claimsman Tripp, called as an adverse witness by the plaintiffs, testified that he had met with the Sponemanns shortly after the August 1972 accident and had informed them that Hajjar, the driver of the other vehicle, was uninsured. Tripp stated that his company had known almost from the beginning that an uninsured motorist claim would be presented by the plaintiffs. He testified, however, that payments were made to the plaintiffs only under the personal injury protection provision of the policy, and he denied having investigated the plaintiffs’ claim as an uninsured motorist matter.

In further testimony plaintiffs’ counsel asked Tripp:

“Q. In a conversation with Mr. Leskera that you had in July 1974, did you advise him, tell him, that your company, Country Companies, desired that he file a suit in Oklahoma against the uninsured motorist involved in this occurrence, Joseph Hajjar?
A. I don’t know that I told him we desired that he file1 a suit. I think there was a discussion about him filing a suit.
Q. Okay. Were you instructed by your home office that [sic] to communicate to Leskera that a suit should be filed by him in Oklahoma regarding this claim against Hajjar?
A. I think I probably was. I think Jack [Leskera] had asked if we were going to file a suit. In other words, I’m not sure what the conversation really involved.
Q. Well, I want to be sure we have this straight. But the question is did you instruct Jack to file suit in Oklahoma against the uninsured motorist Hajjar stating that that was the wishes of your company that he do that?
A. I don’t — I can’t visualize me stating to him that ‘Hey, you file a lawsuit.’
Q. Well, do you recall this part of your deposition taken December 17, 1976 at page six? The question was asked by Mr. Leskera to you. ‘Are you saying you didn’t call me and tell me that Country Mutual had advised you about filing a suit in Oklahoma, that we should go ahead and file it because you didn’t want to have any statute waived down there?’ And your answer was: ‘The only recollection I have, Jack, is that I apparently was instructed by someone in the home office that a suit should be filed in Oklahoma and that suit should be filed by you.’
A. Okay.
Q. Okay.
A. That’s apparently what I told him.”

Attorney John Leskera, testifying for the plaintiffs, likewise related that Tripp had advised him to file suit in Oklahoma against Haj-jar. Leskera stated:

“The conversation between Mr. Tripp and I was this, that it was coming on two years since the date of the accident, that Mr. Hajjar — that if suit were to be filed against Hajjar, the suit would be filed within the two year period. I expressed the opinion in our conversation that there was no point in filing suit against Hajjar. The reasons I gave for that were: number one, it had been determined by Country Mutual’s investigation that there was no insurance on his part; number two, the — there was no other obvious place for collection of any subrogation interest that Country Mutual may have. And so I expressed to Mr. Tripp our willingness to file suit as to Mr. Hajjar, if that’s what Country Companies wanted us to do, to preserve its rights of subrogation, but I likewise expressed the idea that there was no practical reason as I saw it to file suit because it did not appear that there was any practical method of recovery against Hajjar.”

Leskera noted that he was “certainly relying upon [Tripp’s] investigation and his comments to me that Hajjar was [uninsured] and that there was no way to do anything about it.” Leskera continued by saying that after this conversation,

“[Tripp] called and said that somebody had thought it over from the company and that they thought it was appropriate that we file suit, *** and so therefore, I said, well, if you want us to do that, because there is a policy provision which says we should not do anything to affect the rights of Country Mutual, we will go ahead and do it.”

Leskera testified further that when Tripp had first contacted him regarding the plaintiffs’ uninsured motorist claim in March 1974, Tripp had indicated that the defendant was liable under the uninsured motorist coverage of the policy but that the plaintiffs’ claim could not be evaluated until Dr. Semon’s report was obtained. Leskera stated that he and Tripp had agreed “that we would await the obtaining of the reports and we would have a discussion after which we would settle the claim or not, and if we couldn’t, we would file a claim for arbitration.” Leskera stated that there had been no disagreement between him and Tripp regarding the plaintiffs’ uninsured motorist claim until they met to discuss settlement of the claim in January 1975 after receiving Dr. Semon’s report in December 1974. Thus, he testified, there had been no purpose in demanding arbitration of the plaintiffs’ claim before that time.

On cross-examination Leskera testified that he had been aware of the two-year limitation period for filing an arbitration demand prior to August 26, 1974, but that he had made a conscious decision not to file the written demand because of the agreement he had with claims-man Tripp.

On direct examination by the defendant, Tripp stated that he did not recall telling the plaintiffs or Leskera prior to August 26, 1974, that the uninsured motorist matter would be settled or that they need not file a demand for arbitration. He also did not recall any discussion with Leskera to the effect that the plaintiffs’ claim could not be arbitrated until the medical reports were received.

Victor Rochelle, claims attorney for the defendant, testified that he first became involved with the plaintiffs’ claim in January 1975 when the plaintiffs’ demand for arbitration was filed. At that time a check was made to see if any lawsuits had been filed in Oklahoma, and Rochelle learned of the Oklahoma litigation for the first time. Rochelle testified that an attorney working for the defendant in Oklahoma informed him that under Oklahoma law, the defendant would be bound by a default judgment taken against the uninsured motorist Hajjar without regard to the liability and damages of the uninsured motorist and possibly as to the plaintiffs’ coverage under the policy. For this reason, Rochelle stated, a decision was made in the spring of 1975 to intervene in the Oklahoma proceeding so that the defendant could protect itself on these issues. The defendant’s representatives, however, continued to negotiate with the plaintiffs regarding their uninsured motorist claim until October 1975, when the defendant’s petition to intervene was filed.

Rochelle stated that he had no knowledge that anyone within the defendant’s organization had directed Leskera to file suit in Oklahoma against the uninsured motorist. He maintained that there had been no design on the defendant’s part to send Leskera to Oklahoma to take advantage of him but that the defendant had sought only to protect its rights in that proceeding. Rochelle testified further that the defendant’s attorney never appeared in the Oklahoma action on behalf of the uninsured motorist but that the defendant asserted the statute of limitations defense in that action on its own behalf. Rochelle added that if the Oklahoma action had been decided in favor of the plaintiffs, the defendant would still have had its subrogation claim against the uninsured motorist.

In further questioning, reference was made to an internal memorandum written in September 1975 by Richard Berger, an attorney working for the defendant under Rochell’s supervision. In the memorandum, introduced into evidence by the plaintiffs, Berger stated that it was in the defendant’s best interest to intervene in the lawsuit filed by the plaintiffs in Oklahoma. He noted that arbitration, in Madison County, Illinois, would likely cost the company most of its policy limits while jury verdicts in Craig County, Oklahoma, were “quite conservative.” The attorney representing the defendant in the Oklahoma litigation had been advised, Berger stated, that any result reached in Oklahoma should be definitive and final so as to be given full faith and credit in Illinois.

Following the hearing the trial court entered its judgment on October 26,1982, finding as follows:

“6. There is no basis in the evidence for the finding that any conduct of agents of Country Mutual Insurance Company constituted adequate grounds for plaintiff’s counsel to refrain from taking appropriate steps to avoid the running of the two (2) year limitation period.
The court has been furnished with no cases by counsel nor has it discovered any through its own research where a party represented by competent counsel, which is clearly the case in this situation, has been able to establish that an insurance carrier should be estopped to assert its policy defenses under such circumstances as exist herein.
Defendant Country Mutual Insurance Company is not estopped from asserting its limitation period provision as a defense to plaintiffs’ claims. Defendant merely asserted a right it had under the policy. The court finds no basis for plaintiffs’ position that plaintiffs’ attorney failed to comply with the appropriate policy provision due to conduct by defendant that would give rise to estoppel.
7. The relief requested by plaintiff [sic] should be denied in its entirety.”

On appeal from this judgment the plaintiffs contend that the trial court failed to give adequate consideration to all elements of the defendant’s conduct in finding that the defendant was not estopped from asserting its policy limitation as a defense to the plaintiffs’ action. In particular, the plaintiffs note the defendant’s admission that shortly before the running of the two-year arbitration period, the defendant requested plaintiffs’ counsel to institute suit in Oklahoma against the admittedly uninsured motorist to protect the defendant’s subrogation interest. The plaintiffs assert that this request carried with it the implication that uninsured motorist benefits would be paid so as to give rise to a subrogation interest on the part of the defendant. Since, the plaintiffs maintain, there was no advantage to the plaintiffs in filing the Oklahoma suit, the defendant’s request, made at a time when the parties were amicably negotiating the plaintiffs’ claim, was an affirmative act sufficient to lull not only the plaintiffs but their experienced attorney into a reasonable belief that the plaintiffs’ claim would be settled without suit.

The plaintiffs also strenuously contend that the defendant’s later conduct of intervening in the Oklahoma suit and asserting the defenses of the uninsured motorist evidenced, at worst, a devious subterfuge to find a more favorable forum in which to defeat the plaintiffs’ claim and, at best, a bad faith attempt to escape liability after invoking the cooperation of the plaintiffs’ attorney. We note in this regard that once the Oklahoma action had been filed by the plaintiffs’ attorney, ostensibly to protect the defendant’s subrogation rights against the uninsured motorist, the defendant changed its position and “stepped into the shoes” of the uninsured motorist to litigate against the plaintiffs. Despite the testimony of defendant’s attorney Rochelle that the defendant’s sole objective was to protect itself from being bound by a default judgment in Oklahoma, the evidence shows that the defendant’s representatives weighed the relative advantages of having the plaintiffs’ claim determined by a jury in Oklahoma rather than by an arbitrator in Illinois. Their direction to the defendant’s litigator in Oklahoma that the Oklahoma judgment should be definitive and final so as to be given full faith and credit in Illinois shows a purpose to protect themselves not only as to execution of a judgment in Oklahoma but also as to any recovery that might be sought in Illinois. As this court stated in Sponemann I, such conduct on the part of the defendant was in contravention of both the public policy favoring compensation of victims of an uninsured motorist (see Roby v. Illinois Founders Insurance Co. (1978), 57 Ill. App. 3d 89, 372 N.E.2d 1097) as well as the public policy favoring arbitration of uninsured motorist claims (see Ill. Rev. Stat. 1981, ch. 73, par. 755a; Sponemann I).

While the record in the instant case may not expressly reflect an overall plan by the defendant to defeat the plaintiffs’ claim in Oklahoma, we believe the defendant’s conduct in requiring the plaintiffs to institute the Oklahoma action was sufficient, in light of later developments in the case, to estop the defendant from asserting the policy limitation provision as a defense to the plaintiffs’ declaratory judgment action in Illinois. It is well settled that an insurance company may be estopped from raising a limitations defense by conduct which induces in its insured a reasonable belief that his claim will be settled without suit. (Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 419 N.E.2d 465.) While the mere pendency of negotiations between the parties will not, of itself, give rise to an estoppel, estoppel may be found where negotiations are such as to lull the insured into a false security, thereby causing him to delay the assertion of his rights. (Dickirson v. Pacific Mutual Life Insurance Co. (1925), 319 Ill. 311, 150 N.E. 256; Myers v. Centralia Cartage Co.; 18 Couch on Insurance sec. 75:209 (2d ed. 1968).) Since estoppel is recognized in order to protect from harm a party who has relied to his prejudice upon the acts of another, it is immaterial that the insurer intended neither to mislead the insured nor to relinquish its own rights under the policy. Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223; 18 Couch on Insurance sec. 71:16 (2d ed. 1968).

The determination of whether estoppel exists depends upon the circumstances of a given case and may consist of various factors. (See Zaayer v. Axel (1981), 102 Ill. App. 3d 208, 429 N.E.2d 607.) In the instant case, as we have indicated, the determinative factor giving rise to estoppel was the defendant’s act of soliciting the plaintiffs’ cooperation in filing the uninsured motorist suit. At the time of the defendant’s request, the parties were amicably negotiating the plaintiffs’ uninsured motorist claim while awaiting an evaluation of Frieda Sponemann’s medical condition. The defendant had been unable to locate the admittedly uninsured driver of the other vehicle, and the plaintiffs thus had nothing to gain from filing suit against him. The plaintiffs filed the uninsured motorist suit, then, only at the defendant’s request and only to protect the defendant’s subrogation rights, which would arise upon settlement of the plaintiffs’ claim. In view of the timing and the purpose of the uninsured motorist suit, we believe the defendant’s solicitation of the plaintiffs’ aid in filing the suit was sufficient to prompt a reasonable belief on the plaintiffs’ part that the defendant would work with them to settle their own claim without suit.

Our perception of the defendant’s conduct in this regard is not altered by the fact that, under the plaintiffs’ policy with the defendant, the plaintiffs were obligated to act to secure the defendant’s rights against an uninsured motorist and to do nothing that would prejudice such rights. By virtue of this policy provision, the defendant was able not only to invoke the plaintiffs’ aid in tolling the statute of limitations on the defendant’s claim against the uninsured motorist but also to involve the plaintiffs in an action from which they could not extricate themselves without forfeiting their right to recover from the defendant in a subsequent action against the defendant. Thus, the defendant’s request to file the Oklahoma action, made shortly before the expiration of the limitation period for filing an arbitration demand, effectively diverted the plaintiffs’ attention toward seeking to fulfill their obligations under the policy and caused them to delay the assertion of their right to a determination of the merits of their claim against the defendant.

We find further grounds for estoppel in the fact that here, unlike other cases where estoppel was not found, the defendant gave the plaintiffs no indication, prior to the running of the limitation period, that a question existed as to the plaintiffs’ coverage under the policy and the defendant’s consequent liability for the plaintiffs’ claim. (Cf Dickirson v. Pacific Mutual Life Insurance Co. (insurer explicitly denied coverage for plaintiff’s claim in letter to plaintiff nine months before running of statute of limitations); Florsheim v. Travelers Indemnity Co. (no estoppel as a matter of law where insurer broke off negotiations and denied liability three months before period of limitation expired); Allstate Insurance Co. v. Horn (1974), 24 Ill. App. 3d 583, 321 N.E.2d 285 (insurer not estopped from litigating coverage question after running of period for filing arbitration demand where insurer informed insured three months before end of period that coverage issue existed).) In the instant case it is undisputed that the defendant informed the plaintiffs, through its agent Tripp, that the driver of the other vehicle was uninsured. Further, the defendant had discussed the plaintiffs’ claim on this basis with the plaintiffs’ attorney up until the time for filing an arbitration demand had passed. Once the plaintiffs filed their late demand for arbitration, however, the defendant denied the uninsured status of the other driver and raised the issue of whether the plaintiffs had a claim for uninsured motorist benefits under the policy. It is a rule of law that an insured has a right to know with reasonable promptness the attitude of an insurer, so that he might take such actions as would save him from loss and damage. (Allstate Insurance Co. v. Horn.) In addition, estoppel is based on the principle that one cannot act or conduct himself in a particular manner and then assume a position inconsistent with that conduct to the prejudice of one who has relied upon it. (31 C.J.S. Estoppel sec. 108 (1964).) Thus, in the instant case, the defendant’s failure to raise the coverage issue until after the period for filing an arbitration demand had expired constitutes further conduct giving rise to a finding of estoppel on the part of the defendant.

In the context of the case here presented, we conclude that the defendant’s conduct was sufficient to lull even the plaintiffs’ able and experienced attorney into a reasonable belief that the plaintiffs’ claim would be settled without suit. While an insured’s representation by legal counsel in such negotiations may be considered in determining whether an insurer should be estopped from asserting a limitation defense (see Hurtt v. Davidson (1980), 84 Ill. App. 3d 681, 406 N.E.2d 90), the fact of the plaintiffs’ representation here is not conclusive in view of the affirmative nature of the defendant’s conduct. The case of D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 347 N.E.2d 463, cited by the defendant, may be distinguished on this basis, as the court there found that the plaintiffs’ attorney relied, not on conduct by the insurer, but on his own statements and the expansive interpretation he attached to them. (See also Loughran v. A & M Moving & Storage Co. (1974), 17 Ill. App. 3d 119, 307 N.E.2d 794.) To the extent, therefore, that the trial court’s decision was based on the plaintiffs’ representation by legal counsel, we find that it was in error.

We note, finally, that while estoppel is generally a question of fact for the trier of fact, the facts upon which we have relied in the instant case were undisputed and did not rest upon a determination as to the credibility of the witnesses. Based upon these facts we hold that the trial court’s decision was contrary to the manifest weight of the evidence. Accordingly, we reverse the judgment of the trial court and remand this cause for a determination of the other issues presented by the plaintiffs’ declaratory judgment action.

Reversed and remanded.

EASSERMAN and EARNS, JJ., concur.


author: JUSTICE JONES JUSTICE HARRISON,

text:
    STANLEY HOPGOOD, Plaintiff-Appellee, v. ANHEUSER-BUSCH, INC., Defendant-Appellee—(St. Louis Refrigerator Car Company et al., Defendants-Appellants).
    Fifth District
    No. 83—93
    Opinion filed December 14, 1983.

      HARRISON, J., dissenting.
    Stephen M. Schoenbeck, of Schoenbeck, Tucker & Schoenbeck, of St. Louis, Missouri, for appellants.
    John T. Papa, of Callis & Hartman, P.C., of Granite City, for appellee Stanley Hopgood.
   JUSTICE JONES

delivered the opinion of the court:

This interlocutory appeal is brought by the defendants, Manufacturers’ Railway Company (hereinafter MRC) and St. Louis Refrigerator Car Company (hereinafter SLRC), pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). The plaintiff, Stanley Hopgood, an employee of SLRC, was injured during the course of his employment with SLRC and brought suit against SLRC, MRC, and Anheuser-Busch, Inc. (hereinafter Busch), pursuant to the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1976)) (hereinafter FELA), which provides for the liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence. The trial court has identified the question of law involved as “whether the plaintiff is an employee of a ‘common carrier by railroad’ for F.E.L.A. purposes under the undisputed facts of this case.”

Busch is engaged primarily in the brewing of beer. Both SLRC and MRC are wholly owned subsidiaries of Busch. It is undisputed that MRC is a common carrier by rail. In the first count of his amended complaint the plaintiff alleged that SLRC “existed as a builder and repairer of railroad cars exclusively” for MRC and Busch and “loaned its employees to [MRC] for the repair, maintenance, and replacement of the latter’s switches, tracks, targets and their appurtenances.” Plaintiff alleged further that MRC, SLRC, and Busch “have expressly or impliedly entered into a joint adventure as a common carrier by rail in and throughout several states of the United States by which railroad cars are built, repaired and transported with freight over tracks and its appurtenances for their mutual benefit and profit.” In the second count of the amended complaint plaintiff alleged that on the date he was injured “although [he was] employed by St. Louis Refrigerator Car Company, [he] was employed by defendant, Manufacturers’ Railway Company, for purposes of the aforesaid Federal Employers’ Liability Act at [SLRC’s] Two Utah yard in or near St. Louis, Missouri, in that St. Louis Refrigerator Car Company was a servant of Manufacturers’ Railway Company, and therefore plaintiff was a subservent of Manufacturers’ Railway Company.”

SLRC and MRC moved for summary judgment. In denying the motion the trial court found that there were “questions of fact notwithstanding affidavits of defendants.” Upon the denial of their motion for summary judgment SLRC and MRC moved that the trial court certify the cause for interlocutory appeal. The trial court granted the motion and later allowed the plaintiff’s motion to supplement the record on appeal by incorporating into it the discovery depositions of six persons, including those of Eldon Harris and Ronald Stillman, whose affidavits seem to be those to which the court referred in its order denying the motion for summary judgment. Plaintiff maintains that a genuine issue of material fact exists as to whether SLRC is a mere instrumentality of MRC and Busch and as to whether the operational activity performed by SLRC for the benefit of MRC and Busch is sufficient to impose liability upon SLRC under FELA. Plaintiff does not address the theory of joint venture.

The parties agree that SLRC is engaged in the business of maintaining, repairing, rebuilding, and leasing railroad cars. SLRC owns insulated refrigerator cars but no locomotives. MRC uses its locomotives to switch cars for SLRC. The switch engines are operated exclusively by employees of MRC. MRC switches cars for Busch, Monsanto, “and all of our other industries.” MRC charges SLRC a “switching fee” as it does its other customers for whom it performs such services. MRC repairs the tracks in SLRC’s yards. SLRC employees clean snow and ice and apparently other debris off the tracks in SLRC’s yards but may not do so in MRC’s yards. MRC repairs its own engines but not its cars and operates no car repair shop. Some of its employees make minor repairs on MRC cars, but MRC contracts out major repairs to various railroads depending upon the location of the damaged car. Less than one percent of SLRC’s revenue is derived from the services it performs for MRC. Ninety-nine percent of SLRC’s income is derived from the repair and rebuilding of cars of railroads other than MRC. At the time plaintiff was injured he was working on a car owned by Trailer Train, Inc. His injury was not related to switching operations. As a result of his injury plaintiff received State workmens’ compensation benefits.

To ship its product to market Busch uses cars belonging to SLRC and to MRC as well as cars belonging to other railroads. Over half of MRC’s revenues are derived from Busch. At times employees of SLRC perform repairs to cars within Busch’s St. Louis brewery. Such repairs appear to be minor in nature, on the order of fixing a bulkhead or opening a door. To make the repairs in the brewery SLRC employees take their tools with them.

Supervisory employees of MRC do not issue instructions to or attempt to control the work of employees of SLRC. There is no horizontal movement of employees between MRC and SLRC. An employee of MRC who wished to work for SLRC would have to resign from MRC to become an employee of SLRC. SLRC and MRC have their own payrolls, separate seniority rosters, and separate management teams up to the level of vice-president of operations. Plaintiff was paid by SLRC.

SLRC, MRC, and Busch share some of the same officers and directors. For example, the record shows that August Busch III is a trustee of SLRC and at the same time is the chief executive officer and president of Busch and its chairman of the board. Walter Reisinger is, likewise, a trustee of SLRC and a member of the board of directors of Busch. John Hayward is vice-president and corporate secretary of Busch and the secretary of SLRC. Roy Chapman is the president of SLRC and the president and director of MRC. Ronald Stillman is treasurer and comptroller of SLRC and MRC and their subsidiaries. Eldon Harris is the vice-president of personnel for MRC and SLRC and their subsidiaries. He is involved in “day-to-day personnel actions, such as garnishments,” and screens application but does not hire or dismiss employees.

SLRC was founded in 1878 as an association or a common law business trust in Massachusetts. Busch acquired its interest in SLRC in 1967. At the same time Busch acquired its interest in MRC. The general offices of both SLRC and MRC are located in St. Louis, Missouri, in a building owned by a subsidiary of MRC. The general offices of subsidiaries of MRC are located in the same building. MRC owns all the office equipment in that building. All of the equipment located at SLRC’s shop where repairs are made, however, is owned by SLRC. SLRC and “probably” MRC use Busch’s legal department. The record indicates considerable cooperation among the companies in question, particularly with respect to matters of accounting. A consolidated income tax is filed for Busch, MRC, SLRC, and their subsidiaries.

We turn to plaintiff’s contention that SLRC is a mere instrumentality of Busch and MRC through Busch. We find most instructive the case of Fawcett v. Missouri Pacific R.R. Co. (W.D. La. 1965), 242 F. Supp. 675, aff’d (5th Cir. 1965), 347 F.2d 233, cert, denied (1965), 382 U.S. 907, 15 L. Ed. 2d 159, 86 S. Ct. 242, in which the plaintiff maintained that the deceased had been an employee of a railroad within coverage of FELA at the time he had met his death and contended that “because the trucking company [for which the decedent had worked] was a wholly owned subsidiary of the defendant, it, the trucking company, was the alter ego, adjunct, subsidiary agent, and instrumentality of the railroad.” The district court in Fawcett v. Missouri Pacific R.R. Co. (W.D. La. 1965), 242 F Supp. 675, 678, adopted the following quotation from Kentucky Electric Power Co. v. Norton Coal Mining Co. (6th Cir. 1938), 93 F.2d 923, 926, as a correct statement of the law:

“[I]t is *** well settled that a corporation is ordinarily an entity, separate and apart from its stockholders, and mere ownership of all the stock of one corporation by another, and the identity of officers of one with officers of another, are not alone sufficient to create identity of corporate interest between the two companies or to create the relation of principal and agent or to create a representative or fiduciary relationship between the two. If such stock ownership and potential control be resorted to only for the purpose of normally participating in the affairs of the subsidiary corporation in a manner usual to stockholders and not for the purpose of taking some unfair advantage of the subsidiary or using it as a mere adjunct to the main corporation or as a subterfuge to justify wrongdoing, their identity as separate corporations will not be disregarded but their respective rights when dealing with each other in respect to their separate property will be recognized and maintained. The extent of stock ownership and mere potential control of one company over another has never been regarded as the determining factor in the consideration of such cases. Something must be disclosed to indicate the exercise of undue domination or influence resulting in an infringement upon the rights of the subservient corporation for the benefit of the dominant one. Otherwise, the rights of the separate corporations in respect to their corporate property must be governed by the rules applicable in ordinary cases. [Citations.]”

In Fawcett, as in the case at bar, the employee in question had never been in the employ of the common carrier, had not been hired by it, was not on its payroll, was not paid by it, and was not subject to discharge by it. The employee in Fawcett, as in the instant case, was not using the tools of the common carrier or doing work the common carrier was required to do. As in the instant case, the employees of the common carrier in Fawcett did not have supervision of the employee or of his supervisors. In Fawcett, as in the case at bar, the plaintiff alerted the court to beware of intercompany arrangements drawn to avoid Federal jurisdiction under the FELA. However, like the court in Fawcett, we find nothing indicative of such a purpose.

Similarly, in Garrett v. Southern Ry. Co. (E.D. Tenn. 1959), 173 F. Supp. 915, aff’d (6th Cir. 1960), 278 F.2d 424, cert, denied (1960), 364 U.S. 833, 5 L. Ed. 2d 59, 81 S. Ct. 49, in which the defendant railway had acquired the entire capital stock of Lenoir Car Works, the district court applied the principles expressed in Kentucky Electric quoted above and concluded that the control by the defendant railway over Lenoir was not such as to constitute Lenoir an adjunct of the defendant railway. Had the company been deemed an adjunct of the railway, the complainant, a wheel moulder in the employ of Lenoir, who claimed to have contracted silicosis from dust permeating the foundry, would have been entitled to recover under FELA as an employee of Southern Railway.

More recently, in Barrera v. Rosco, Snyder & Pacific Ry. Co. (N.D. Tex. 1973), 385 F. Supp. 455, affd (5th Cir. 1974), 503 F.2d 1058, the district court likewise quoted and applied the same principles expressed in Kentucky Electric to hold that there was no evidence to support a jury finding that a railroad equipment corporation, which employed the plaintiff, was an alter ego of the defendant railway and that there was, hence, no way the railroad could be liable to the plaintiff in an FELA action.

We note that the instant case differs somewhat from those we have cited in that a third business entity, namely Busch, owns both the railway in question as well as the company employing the injured plaintiff, as opposed to the ownership by the railway of the company employing the injured employee. However, that distinction does not, we think, limit the applicability of the cases cited to the one at bar.

We note too that nothing in the record suggests that at the time of his injury plaintiff was serving as the borrowed servant of MRC, that he was serving MRC and SLRC simultaneously, or that he was a subservant of a company that was, in turn, a servant of MRC. See Kelley v. Southern Pacific Co. (1974), 419 U.S. 318, 42 L. Ed. 2d 498, 95 S. Ct. 472.

Although the record reveals a considerable amount of cooperation between Busch, SLRC, and MRC, it does not indicate that either Busch, for the benefit of MRC or itself, or MRC, by way of Busch, uses SLRC as a mere adjunct to itself or as a subterfuge or exercises undue dominion or influence infringing upon the rights of SLRC for the benefit of Busch or MRC. In short, we conclude from our review of the record, SLRC is not the mere instrumentality of either Busch or MRC by way of Busch.

The corporate relationship existing between Busch, SLRC, and MRC is, likewise, of crucial importance to the alternative theory plaintiff advances, that of operational activity. In Edwards v. Pacific Fruit Express Co. (1968), 390 U.S. 538, 540, 20 L. Ed. 2d 112, 114, 88 S. Ct. 1239, 1240, the Supreme Court reiterated the meaning of “common carrier by railroad”:

“This Court has held that the words ‘common carrier by railroad’ mean ‘one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier. ***’ Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187-188.”

By itself, SLRC does not qualify as a “common carrier by railroad.” For his alternative position plaintiff relies upon the following statement, concerning a railroad as a “unitary enterprise” for purposes of FELA, appearing in Sinkler v. Missouri Pacific R.R. Co. (1958), 356 U.S. 326, 330, 2 L. Ed. 2d 799, 803, 78 S. Ct. 758, 762, the facts of which plaintiff acknowledges are not comparable to those in the case at bar:

“Thus while the common law generally regarded the torts of fellow servants as separate and distinct from the torts of the employer, holding the latter responsible only for his own torts, it was the conception of this legislation that the railroad was a unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any other member engaged in the common endeavor.”

In Sinkler the petitioner was employed by the respondent railroad as a cook on the private car of respondent’s general manager and was injured during switching operations contracted for and conducted by another railway company. The court described switching as “a vital operational activity of railroading consisting in the breaking up and assembly of trains and the handling of cars in interchange with other carriers” (356 U.S. 326, 327, 2 L. Ed. 2d 799, 801, 78 S. Ct. 758, 760) and held that when a railroad employee’s injury is caused in whole or in part by the fault of others performing under contract, operational activities of his employer, such others are “agents” of the employer for purposes of liability under FELA.

On the basis of the statement in Sinkler quoted above plaintiff argues that “the recognition by the Sinkler court that railroading is a unitary enterprise and that a railroad can be responsible for a tort committed by another entity ‘performing operational activities’ or ‘furthering operational activities’ of a railroad, is applicable to this case.” Plaintiff refers to his earlier discussion of “how the rail service provided by MRC and SLRC employees within the MRC rail network operates as a unitary enterprise” and asserts that “the regular car inspection and car repair work performed by SLRC employees is the performance of operational activities of MRC, or *** furthers the operational activity of MRC.” Plaintiff concludes,

“In summation, the unitary enterprise engaged in by Anheuser-Busch, Inc., MRC and SLRC to service industries located on the MRC rail network in St. Louis, Missouri, must be responsible for all injuries arising out of the ‘fault of any other member engaged in the common endeavor.’ ”

We have, however, already determined that SLRC is not the mere instrumentality of either Busch or MRC by way of Busch. That being the case, MRC is but one of various companies for whom SLRC repairs railroad cars, and SLRC is but one of various companies that repair railroad cars for MRC. It is undisputed that at the time plaintiff was injured he was working on a car owned by Trailer Train, Inc. There is no suggestion in the record that he was working on a car in any way associated with MRC. If we were to hold SLRC liable under FELA for plaintiff’s injuries, sustained while working on a car in no way associated with MRC, we would have to do so merely because SLRC also repairs cars for MRC. In fact, we would have to do so despite the fact that the work SLRC does for MRC constitutes less than one percent of SLRC’s business. Absent an improper relationship between Busch, SLRC, and MRC, evidence of which we have not found, there is no merit to plaintiff’s argument.

The purpose of summary judgment is to determine whether a genuine issue exists as to any material fact that would require a trial. (Williams v. Chicago & Eastern Illinois R.R. Co. (1973), 13 Ill. App. 3d 596, 300 N.E.2d 766.) We must disagree with the plaintiff that a genuine issue of material fact exists as to whether SLRC is a mere instrumentality of Busch and MRC and as to whether the operational activity performed by SLRC for the benefit of MRC and Busch is sufficient to impose liability upon SLRC under FELA. Thus, under neither theory the plaintiff advances may he be considered an employee of a “common carrier by railroad” for purposes of FELA. For these reasons we reverse the judgment of the trial court.

Reversed.

KASSERMAN, J., concurs.

JUSTICE HARRISON,

dissenting:

I respectfully dissent.

I feel that the trial court was correct in denying summary judgment in this case because the relationship of the defendants in their operations presented a genuine issue of fact as to whether the corporate forms adopted involved a scheme to avoid the provisions of the Federal Employers’ Liability Act. (45 U.S.C. sec. 51 et seq. (1976).) A legal fiction of distinct corporate existence will be disregarded to circumvent a fraud. (Dregne v. Five Cent Cab Co. (1941), 381 Ill. 594, 603, 46 N.E.2d 386.) When corporate form has been used to avoid a statute, the corporate entity will be disregarded in the interests of justice. Courts will, and should, view carefully schemes of this nature to prevent evasion of statutory or constitutional duties imposed by the State. (1242 Lake Shore Drive Building Corp. v. Hughes (1938), 369 Ill. 476, 17 N.E.2d 38.) The statutory rights of the plaintiff in this case and other employees of St. Louis Refrigerator Car Company, under the provision of the Federal Employers’ Liability Act, may have been violated. The purpose of summary judgment is not to try an issue of fact and, although inference may be drawn from undisputed facts, it should not be granted unless those facts are susceptible of but a single inference. Where reasonable men could arrive at different results, questions cannot be determined as a matter of law. The right of a movant to summary judgment must be free from doubt. Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 360 N.E.2d 440.

For the foregoing reasons, I would affirm the order of the trial court in denying summary judgment.


author: JUSTICE O’CONNOR JUSTICE O’CONNOR

text:
    VALERIE JOHNSON et al., Petitioners-Appellees, v. CECIL A. PARTEE, Treasurer of the City of Chicago, et al., Defendants—(Illinois Bell Telephone Company, Defendant-Appellant).
    First District (3rd Division)
    No. 82—3139
    Opinion filed September 21, 1983.
    Supplemental opinion filed on denial of rehearing January 11, 1984.
    Thomas P. Hester, James R. Bryant, Jr., Robert Guritz, Michael J. Kar-son, and John T. Lenahan, all of Chicago, for appellant.
    Leonard E. Handmacher, Sidney Z. Karasik, and Seymour Schriar, all of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs filed this taxpayers’ derivative action for injunctive and other relief in the name of the city of Chicago, challenging the city’s payment of an additional charge which defendant-utilities, Commonwealth Edison Company, Illinois Bell Telephone Company and The Peoples Gas, Light & Coke Company, passed on to their customers pursuant to section 36(a) of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/s, par. 36(a)) for the city’s own utility taxes as well as 3% to cover the costs of accounting and collection. The trial court entered a preliminary injunction enjoining the alleged illegal payments to the defendants in the form of additional charges for the city’s own utility taxes and for accounting costs. The gas (Peoples) and electric (Edison) utilities eventually settled out and the suit proceeded against Illinois Bell (Bell), appellant herein. The preliminary injunction was made permanent as to Bell and partial summary judgment was also entered against it in a sum stipulated to be the amount of additional charges retained by Bell in conjunction with the collection from the city of its own message taxes on telephone service. Bell appeals from both portions of the trial court’s order. We reverse.

Section 8 — 11—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 11—2) authorizes municipal governments to tax public utilities which supply service within the municipality at a rate not to exceed 5% of the utilities “gross receipts.” Pursuant to section 36(a) of the Public Utilities Act, the utilities, in turn, are permitted to pass on the burden of this tax to each customer by charging an additional charge equal to the sum of (1) an amount equal to such municipal tax, or any part thereof, (2) 3% of such amount to cover accounting costs, and (3) an amount equal to the increase in taxes and other payments to governmental bodies resulting from the amount of such additional charge. Section 36(a) further provides that such additional charge “shall be made by the addition of a uniform percentage to the amounts payable for intrastate utility service in such municipality and shall be shown separately on the utility bill to each customer.” Ill. Rev. Stat. 1981, ch. lll2/s, par. 36(a).

Acting pursuant to the enabling provisions of section 8 — 11—2 of the Illinois Municipal Code, the city of Chicago adopted a series of municipal tax ordinances effective December 1, 1955, under which each of the utility defendants was obliged to pay the city, at varying rates applicable to each company, taxes on gross receipts derived by the utility from the sale and supply of their respective services to the city. Municipal Code of Chicago, sec. 132 — 3 et seq.-, sec. 132 — 16 et seq.; and sec. 132 — 30 et seq.

Plaintiffs filed the instant derivative suit in the name of the city of Chicago in June of 1980, alleging that the city was exempt from paying the section 36(a) additional charge because public policy prohibited the city from paying a “tax to itself,” seeking to enjoin Bell from billing the additional charge to telephone accounts maintained by the city and to enjoin the city from paying it. In addition, plaintiffs sought money judgments against Bell for lost interest earned on the “taxes” which were allegedly collected from the city and remitted back to the city some months later, and for the 3% accounting cost reimbursement included in the additional charges paid by the city during an unspecified time in the past, and retained by Bell pursuant to section 36(a).

Bell moved to dismiss plaintiffs’ complaint, averring, among other things, that the legal incidence of the Chicago Message Tax is on Bell and that the General Assembly, by the enactment of section 36(a), expressly authorized Bell to pass on the economic burden of the tax to “each customer” without exception for local government units. Bell further averred that the city, as a “customer” of Bell, was therefore liable under section 36(a), not for the payment of a “tax,” but for an additional charge for the utility service.

In a lengthy memorandum of decision, the trial court conceded that the literal interpretation of the term “customer” for purposes of the Public Utilities Act would apply to any “purchaser” of a utility’s service, including the city. Nonetheless, the court denied Bell’s motion to dismiss based on its belief that the General Assembly, when it enacted section 36(a), did not intend that the city, as the taxing body, should pay additional charges for its own taxes.

Thereafter, the parties stipulated to certain facts: plaintiffs stipulated that Bell remitted the city message tax due on the city’s accounts prior to the time that the city paid its telephone bills, effectively conceding their “lost interest” claim, and the parties stipulated that Bell retained only the 3% accounting cost reimbursement included in the section 36(a) additional charges paid by the city, and that for the period from January 1, 1970, through August 21, 1981, such accounting cost reimbursement totaled $63,621.02.

Bell then moved for summary judgment on the “lost interest” claim and plaintiffs, in turn, moved to make the preliminary injunction permanent and for summary judgment against Bell in the amount of $63,621.02. It is from the granting of these motions that Bell now appeals.

The plain language of section 36(a) mandates that the additional charge authorized thereunder shall be made by the addition of a “uniform percentage” to the amounts payable and shall be shown separately on the utility bill to "each customer.” Our supreme court has recently stated that local government units are “concededly utility customers for the purposes of the Public Utilities Act” (Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 259, 447 N.E.2d 345) and that the General Assembly, in enacting section 36(a), authorized the transfer of the economic burden of the municipal utility tax “to all utility customers” including local government units. (Emphasis added.) (Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 260.) That court also made clear that the section 36(a) additional charge is not a “tax” but a “ '*** charge’ for utility service.” 95 Ill. 2d 244, 256; see also Sullivan v. Commonwealth Edison Co. (1983), 115 Ill. App. 3d 560, 565, 450 N.E.2d 1191; City of Naperville v. Department of Revenue (1982), 103 Ill. App. 3d 312, 431 N.E.2d 54, appeal denied (1982); 91 Ill. 2d 560.

Nevertheless, plaintiffs urge this court to uphold the “exception” from the additional charge which was “implied” by the trial court in order to accomplish a perceived legislative purpose of protecting the city, as the taxing body, from bearing the economic burden of its own tax. A similar attempt to imply an exemption for local government units from bearing the economic burden of taxes was rejected, however, in Berwyn Lumber Co. v. Korshak (1966), 34 Ill. 2d 320, 215 N.E.2d 240, wherein the court stated:

“If the intention of the General Assembly was to make the exclusion [from Retailers’ Occupation Tax] depend upon more remote economic effects [on government bodies] it has not said so, and courts are not at liberty to enlarge the scope of plain provisions in order to more effectively accomplish the general purpose.” 34 Ill. 2d 320, 323.

We believe that if the legislature intended to exempt municipalities, as customers, from bearing the economic burden of their own utility taxes, it would have expressly exempted them from paying the section 36(a) additional charge, and until section 36(a) is so amended, Bell, being subject to such taxes, must continue to spread the passed-on charge uniformly among all customers.

The judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings in conformity with the views herein expressed.

Reversed and remanded.

McNAMARA, P.J., and McGILLICUDDY, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE O’CONNOR

delivered the opinion of the court:

Subsequent to the filing of this opinion, plaintiffs filed a petition for rehearing arguing that this court failed in its opinion to address the fact that the city of Chicago has amended its three utility tax ordinances, beginning with its message tax ordinance in 1978, to exclude from the definition of “gross receipts” any consideration paid by the city for its own usage, thus leaving in serious doubt the continued validity of the city’s ordinances without expressly so holding. In addition, both Peoples Gas and the city filed petitions for leave to intervene for the purpose of filing petitions for rehearing, and Commonwealth Edison filed a motion for leave to appeal as amicus curiae. All of the parties now attempt to raise essentially the same issue: Whether section 36(a) of the Public Utilities Act (HI. Rev. Stat. 1981, ch. llP/s, par. 36(a)) must be construed to require a utility to impose the additional charge on a taxing municipality whose payments for intrastate utility service have been entirely excluded from the gross receipts subject to the applicable municipal taxing ordinance.

We note that this issue was never decided by the trial court, nor was it properly before us on appeal. Our holding is therefore limited to reversing the injunction against Bell and the summary judgment against Bell for charges previously collected pursuant to section 36(a). The cause is remanded to the circuit court for a determination of the effect of the amended ordinances.

McNAMARA and McGILLICUDDY, JJ., concur.


author: JUSTICE HARRISON

text:
    BOBBIE EARL DAVIS et al., Petitioners-Appellees, v. SYED AKBAR BUGHDADI et al., Defendants-Appellants.
    Fifth District
    No. 83—262
    Opinion filed December 23, 1983.

      Sharon Sigwerth Costa, of Mt. Vernon, for appellants.
    Larry D. Gibson, of Law Offices of Sharp and Gibson, P.C., of Mt. Vernon, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Syed Akbar Bughdadi appeals a judgment of adoption entered in the circuit court of Jefferson County terminating his parental rights with regard to his natural son. This order was entered after a hearing pursuant to a petition for adoption filed by the child’s natural mother, Beth Ann Davis, and her husband, Bobbie Earl Davis. The final order of adoption was entered subsequent to an interim order terminating Mr. Bughdadi’s parental rights. Mr. Bughdadi also appeals the court’s dismissal of a petition for rule to show cause filed against Mrs. Davis. We determine (1) that we are without jurisdiction to consider the dismissal of the petition against Mrs. Davis, and (2) that the order terminating Mr. Bughdadi’s parental rights was not supported by the manifest weight of the evidence before the trial court.

On December 18, 1980, a judgment for dissolution of marriage was entered dissolving the marriage of Beth Ann Bughdadi, petitioner, and Syed Akbar Bughdadi, respondent. The petitioner was granted custody of the couple’s 17-month-old son, Syed Ahmed Bughdadi. Respondent was ordered to pay child support and was granted visitation privileges with regard to his son. Respondent’s failure to pay support prompted petitioner to file a petition for contempt against respondent on April 3, 1981. Respondent thereafter paid ar-rearages accruing through March 1981, but made no subsequent payments. Petitioner filed a petition for rule to show cause on August 27, 1982, seeking payment of support owing from March 1981. On this same date, petitioner and her new husband, Bobbie Earl Davis, filed a petition for adoption of Syed Ahmed Bughdadi, alleging that respondent had failed to maintain a reasonable degree of interest, concern, or responsibility for the child, and that respondent was therefore an unfit person within the meaning of section l(D)(b) of the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1501D(b)):

“D. ‘Unfit person’ means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption, the grounds of such unfitness being any one or more of the following: * **
(b) failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare; ***.”

The petition was amended on December 9, 1982, to allege the additional ground of abandonment of the child. On September 15, 1982, respondent filed a petition for rule to show cause against petitioner, alleging that she had deliberately concealed her whereabouts in order to deny respondent’s visitation rights according to the terms of the marital settlement. After a consolidated hearing, the circuit court entered three separate orders on December 30, 1982. An order was issued finding respondent in wilful contempt of court for failure to pay child support. A second order dismissed the petition for rule to show cause against petitioner. A third order found respondent an unfit person within section l(D)(b) of the Adoption Act for failure to maintain a reasonable degree of interest, concern or responsibility as to his son’s welfare, and terminated his parental rights. Respondent filed a notice of interlocutory appeal of the order terminating his parental rights. The notice was filed on January-28, 1983, and was voluntarily dismissed, without prejudice, on March 29, 1983. A final order of adoption was entered by the circuit court on March 21, 1983, declaring Syed Ahmed Bughdadi the child of Bobbie Earl Davis and Beth Ann Davis, and changing the child’s name to Matthew Tyler Davis. Respondent appeals the orders dismissing the petition for rule to show cause against petitioner, the order terminating his parental rights, and the final judgment of adoption.

Supreme Court Rule 303 (87 Ill. 2d R. 303(a)) requires that a notice of appeal be filed with the clerk of the circuit court within 30 days of the final judgment in order to preserve the issue for appeal. An order arising from a contempt proceeding is final and appealable, even though it may occur within the context of another proceeding. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 172, 429 N.E.2d 483.) The order dismissing the petition to show cause filed against petitioner was issued by the circuit court on December 30, 1982. Thereafter, no notice of appeal was filed. The issue is raised for the first time in respondent’s brief. We thus determine that appeal of the order dismissing the petition against Mrs. Davis is untimely, and this court is without jurisdiction to consider the issue.

Petitioners argue that the order terminating respondent’s parental rights is also untimely, in light of the following provisions of Supreme Court Rule 307 (87 Ill. 2d R. 307):

“(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from any interlocutory order of court: * * *
(6) terminating parental rights or granting, denying or revoking temporary commitment in adoption cases; ***
The appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated ‘Notice of Interlocutory Appeal’ conforming substantially to the notice of appeal in other cases. The record must be filed in the Appellate Court within the same 30 days unless the time for filing the record is extended by the Appellate Court or any judge thereof.”

Petitioners also cite section 17 of the Adoption Act:

“Sec. 17 Effect of order terminating parental rights or order. After the entry either of an order terminating parental rights or the entry of an order of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations of maintenance and obedience as respects such natural parents.” Ill. Rev. Stat. 1981, ch. 40, par. 1521.

The sum of petitioners’ argument, as we comprehend it, is that Supreme Court Rule 307 should be construed as providing the exclusive mechanism for appeal of an order terminating parental rights, since section 17 ostensibly precludes a natural parent from proceeding through regular legal channels once such an order has been issued. We find this argument untenable in light of established principles of statutory construction. Rule 307 states only that an interlocutory appeal may be taken from an order terminating parental rights, not that such an appeal must be taken in order to preserve review of the order. A statute is open to construction only where its language requires interpretation or may reasonably be considered ambiguous. (See 73 Am. Jur. 2d Statutes sec. 194 (1974).) A construction of a statute, variant from the strict and literal meaning, is justified only upon the ground that it effectuates the intention of the legislature manifestly disclosed by a consideration of the whole context. (Wunderle v. Wunderle (1893), 144 Ill. 40, 62, 33 N.E. 195, error dismissed (1893), 154 U.S. 524, 38 L. Ed. 1078, 14 S. Ct. 1156.) In re Workman (1978), 56 Ill. App. 3d 1007, 373 N.E.2d 39, affd (1979), 76 Ill. 2d 256, 390 N.E.2d 900, cited by petitioners, holds only that section 17 (formerly Ill. Rev. Stat. 1975, ch. 4, par. 9.1—17) precludes an individual from seeking restoration of his or her parental rights by means of a petition to modify an order terminating such rights after the time for appealing the order has expired. There is nothing in the court’s opinion to suggest that appeal of such an order must be exercised solely through the provisions of Rule 307. The language of section 17 neither expressly supports this proposition nor implicitly suggests that such was the intent of the legislature. A court may not adopt an interpretation of a statute which would have the effect of making the legislature say what it has not said. (Wunderle v. Wunderle (1893), 144 Ill. 40, 62.) In the instant case, the issue of whether the circuit court’s determination of respondent’s unfitness as a parent was against the manifest weight of the evidence is properly before us, since the determination of unfitness was made pursuant to the Davis’ petition for adoption, and the appeal was filed and perfected within the statutory period following the order granting this petition. An appeal from a final judgment draws into question all prior, nonfinal orders and rulings which produced the judgment. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, 394 N.E.2d 380.) Respondent’s failure to perfect an interlocutory appeal following the interim order terminating his parental rights cannot act to bar an appeal of the final judgment of adoption.

The testimony pertaining to respondent’s fitness as a parent was conflicting. Petitioner testified that respondent visited their son on Christmas Day, 1980, and made no visits thereafter. Petitioner’s mother, Glenna Johnson, testified that she spoke on the telephone with respondent on February 14, 1981; April 17, 1981; and July 9, 1981. She stated that during the April 17, 1981, conversation, she gave respondent specific directions to Mrs. Davis’ married residence. (Mrs. Davis had moved from her mother’s home on January 7, 1981, and had not informed respondent of her new address. She testified that she wished her ex-husband’s visitation of their son to take place through Mrs. Johnson.) Respondent testified that he had talked to Mrs. Johnson regarding his son on numerous occasions, that he had made several trips to Mrs. Johnson’s house attempting to exercise his visitation rights, that he had been denied visitation on these occasions, and that he had never been given directions to his former wife’s residence. He further testified that he sent Christmas and birthday cards to his son. Mrs. Davis admitted in her deposition that she had never informed respondent of her new residence, and that she maintained an unlisted telephone number. Additional evidence indicated that Mrs. Davis did not file a forwarding address with the post office after she ceased residing at her mother’s home. The trial court resolved the essential points of contention in favor of petitioners:

“It is the court’s opinion and finding had a [sic] — reviewing all the evidence presented and especially, and I say especially, having determined and looked at the credit [sic] — or, evidence the credibility of the witnesses [sic] that the Petitioner’s testimony is certainly more believable than that that has been presented here by the Respondent.
* * *
Now, I want to make it very clear to you, sir [addressing respondent], I’m not making that finding [of unfitness] in any way based on your failure to pay child support. It is certainly a factor that — that I have reviewed, that I am not resting my decision, in any way, in making this finding [sic], I do not believe that you had any contact with these people, their family, or your child other than Christmas day [sic], 1980; February 14, 1981; Feb-April [sic] 17, 1981; and July 9,1981.”

The termination of parental rights is an extreme action, justified only upon clear and convincing evidence of unfitness presented in strict compliance with the Adoption Act. (Pyatt v. Pyatt (1980), 88 Ill. App. 3d 8, 19, 410 N.E.2d 241.) While it is within the discretion of the trial court to attribute greater credibility to the testimony of one party over that of another, we cannot agree that petitioners have met the requisite evidentiary burden even when all essential conflicts are resolved in their favor. “When dealing with cases of this nature, it is not a question of searching for fixed standards or binding precedent. Each case is sui generis. [Citation.] It is of little use to compare frequency of visits, cards, or gifts with the frequency in other cases.” (Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 948, 391 N.E.2d 222.) Nevertheless, a dispassionate reason and the principle of stare decisis dictate at least a minimal comparison of decisional fact patterns. Such a comparison reveals that where the courts of our State have upheld the finding of a parent’s unfitness on the ground of failure to maintain a reasonable degree of interest, concern or responsibility as to a child’s welfare, or in cases where a contrary finding has been reversed, the parents involved have made comparatively fewer attempts to contact their children over comparatively longer periods. See, e.g., Pyatt v. Pyatt; In re Adoption of Richards (1982), 104 Ill. App. 3d 406, 432 N.E.2d 1037; Adams v. Adams (1982), 103 Ill. App. 3d 126, 430 N.E.2d 744; Freeman v. Settle (1979), 75 Ill. App. 3d 799, 393 N.E.2d 1385.

Respondent attributed his failure to make more frequent contacts with his son to the efforts of his former wife and her family to frustrate his attempts to exercise visitation rights. It is apparent that respondent was never notified by his former wife of her whereabouts after January of 1981. This would indicate, at a minimum, that Mrs. Davis wished to make visitation difficult. The contention is supported by Mrs. Davis’ further efforts to retain anonymity — e.g., her acquisition of an unlisted telephone number and her failure to register a forwarding address at the post office. The fact that a custodial parent denies or hinders the visitation rights of a noncustodial parent may be a significant element weighing against the clear and convincing determination of the noncustodial parent’s indifference to his or her child. (Cf Culkin v. Culkin (1975), 30 Ill. App. 3d 1073, 333 N.E.2d 698.) If respondent was in fact notified of his former wife’s residence by Mrs. Johnson, his subsequent failure to act on this information may reasonably be viewed as evidence of a lack of serious interest in his son; however, this evidence cannot, in itself, satisfy the clear and convincing standard necessary to terminate the rights of a natural parent.

In a similar vein, respondent’s erratic child support payments cannot sustain a finding of parental unfitness. Failure to supply support, however reprehensible, must be examined in light of all surrounding circumstances. (Carlson v. Oberling (1966), 73 Ill. App. 2d 412, 416, 218 N.E.2d 820.) Respondent testified that, faced with what he perceived as an inability to freely exercise his rights of visitation, he continued to withhold support both as a matter of equity and to put pressure on petitioner. “While, by law, there is no reciprocal relation between visitation rights and support duties, the layman often views them as connected.” (Perkins v. Breitbarth (1981), 99 Ill. App. 3d 135, 140, 424 N.E.2d 1361.) Such an attitude is neither justifiable under the law nor appropriate to one who purports to be a mature parent. We hold simply that, insofar as the action of withholding support payments reflects a popularly held sentiment, it cannot, in light of all the circumstances of this case, provide clear and convincing proof of respondent’s unfitness as a parent according to the strict terms of the Adoption Act. We therefore reverse the judgment of adoption.

Reversed.

JONES and KASSERMAN, JJ., concur.