text:
    JOHN LUETJE, Plaintiff-Appellant, v. OTTO CORSINI et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—2270
    Opinion filed July 20, 1984.
    Goldstine and Broida, Ltd., of Summit (Ronald J. Broida and Kenneth J. Nemec, Jr., of counsel), for appellant.
    Stern, Rotheiser & Dupree and Lord, Bissell & Brook, both of Chicago (James M. Dupree, Hugh C. Griffin, and William D. Frazier, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order granting defendants’ motion to dismiss plaintiff’s amended complaint seeking damages for personal injuries. In the complaint, plaintiff — a volunteer firefighter for the village of Summit — alleged that he was injured while fighting a fire in defendants’ building when the chimney collapsed and fell on him, and that the fire, the chimney collapse, and consequently his injuries proximately resulted from numerous acts of wilful and wanton misconduct by defendants which essentially relate to their failure (a) to maintain the premises, including the chimney, in safe condition and (b) to comply with applicable fire prevention and building codes and ordinances, despite repeated demands by State and village officials that they do so. Defendants’ motion to dismiss the complaint for failure to state a cause of action was granted, and this appeal followed.

Opinion

In support of his contention that the trial court erred in its ruling, plaintiff relies primarily on Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881. In Dini, one firefighter was killed and another was seriously injured when, as they were ascending a defectively constructed staircase to reach and extinguish a fire on the upper floors of a building, the entire staircase suddenly collapsed and fell on them. In holding that the judgment n.o.v. for defendants was improperly entered, the Dini court, after stating that “the common law rule labeling firemen as licensees was an illogical anachronism,” held that “an action should lie against a landowner for failure to exercise reasonable care in the maintenance of his property resulting in the injury or death of a fireman rightfully on the premises, fighting the fire at a place where he might reasonably be expected to be.” (Dini v. Naiditch (1960), 20 Ill. 2d 406, 416-17, 170 N.E.2d 881, 885-86.) Thus, as plaintiff correctly states, the court in Dini specifically rejected the common law classification of firefighters as licensees to whom the landowner owed no greater duty than to refrain from wilful or intentional injury and imposed upon landowners or occupiers a duty equivalent to that owed to invitees, i.e., to exercise reasonable care to keep their premises in safe condition.

We note, however, that Dini did not involve allegations of wilful and wanton misconduct, nor have the subsequent cases which have examined the scope of the Dini decision. These cases, while holding that landowners are required to exercise reasonable care to prevent injury to firefighters from causes unrelated to the fire, have also held that no such duty is owed to a firefighter where the act or omission complained of was a cause of the fire.

In Netherton v. Arends (1967), 81 Ill. App. 2d 391, 225 N.E.2d 143, plaintiff sought damages for injuries suffered from inhaling smoke and noxious gases while fighting a fire allegedly caused by defendant’s negligence in storing hazardous, combustible materials on his property. In affirming the judgment for defendant, the Netherton court discussed Dini and the cases cited therein and noted that in each instance where liability had been imposed the act or omission causing the fire was not the act or omission causing the injury. The court then stated, “We do not think that Dini holds or intended to hold that negligently creating a fire hazard or causing a fire ipso facto creates a liability upon an owner *** to an invitee fireman for injuries received in the performance of his duties” (Emphasis added.) (Netherton v. Arends (1967), 81 Ill. App. 2d 391, 395, 225 N.E.2d 143, 145), reasoning that since negligence is frequently the cause of the fire necessitating the firefighter’s presence on the premises, the duty imposed upon the landowner by Dini is to refrain from negligently injuring him after he is on the property. The court further noted that absent a charge that the smoke or gases produced were in some way different than those which might be created by any other fire, the hazards which plaintiff faced were merely incidental to his occupation, and concluded that the duty of a landowner to a firefighter is to avoid creating, or to warn him of, known latent defects in the premises which with a reasonable degree of foreseeability might cause him injury.

A similar situation was presented in Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576, where a firefighter brought an action against the owner of a vacant building who had failed to comply with city directives that the building — which was in dangerous and unsafe condition in violation of various city ordinances — either be repaired or demolished. While fighting a fire thereat, a particle of glass from an inoperative window which had to be broken to ventilate the building struck plaintiff, causing him to lose his sight in one eye. In affirming the judgment n.o.v. for defendant, the Horcher court rejected plaintiff’s contention that, under Dini, a landowner may be held liable to a firefighter for negligence in causing the fire, and noted, as did the Netherton court, that because most fires can be attributed to some form of negligence, the hazards resulting therefrom are reasonable risks assumed by those in the occupation of fighting fires and are beyond the scope of the duty owed by a landowner to remove hidden or unusual dangers on the premises or to give adequate warning thereof. As to the alleged ordinance violations, including cracked walls, improper space heaters, a defective electrical system, and the general state of disrepair, the court observed that most of these violations related only to possible negligent causation of the fire for which there is no cause of action, and that even if plaintiff came within the purview of the ordinance prohibiting obstruction of windows, he had failed to establish a causal connection between the negligence in permitting the windows to be stuck and his injury, which resulted from breaking the window to accomplish full ventilation of the building.

Thereafter, in Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, 315 N.E.2d 912, this court affirmed the order of the trial court dismissing plaintiff’s complaint for failure to state a cause of action in a case involving injuries sustained by a firefighter when one of the defendant’s derailed tank cars containing propane gas exploded, ruling that the allegations therein related to acts which either created the fire or contributed to its severity. Noting that liability in the Dini case was predicated upon a combination of factors, the foremost of which was the collapse of an inherently defective stairway — a condition unrelated to the fire — we followed the reasoning in Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576, and Netherton v. Arends (1967), 81 Ill. App. 2d 391, 225 N.E.2d 143, and held that liability can be imposed only where the firefighter is exposed to undue risks beyond those inevitably associated with fighting a fire.

Whatever uncertainty may have existed as to whether these cases correctly interpreted Dini was dispelled by Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 361 N.E.2d 282, where our supreme court was again presented with the issue of a landowner’s liability to a firefighter injured in the performance of his duties, and took the occasion to discuss the appellate decisions cited above and to clarify the scope of the duty imposed upon landowners by Dini.

In Washington, two firefighters were seriously burned while attempting to extinguish a fire in and around a car parked in defendant’s filling station. The fire began when the driver of the car threw a match into a pool of gasoline that the station’s attendant had allowed to overflow from a malfunctioning gasoline pump. Plaintiffs charged defendants with having caused their injuries by using a defective pump, permitting the car’s tank to overflow and allowing the driver of the car to smoke on the premises. In rejecting plaintiffs’ contentions that, under Dini, defendants were liable for the injuries resulting from these acts and that the appellate decisions which we have discussed above constituted “unwarranted deviations” from Dini, the supreme court noted that the principles applied in those cases were consistent with and had been inferentially approved by its holding in Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538, where recovery for the death of a policeman who was fatally shot in an ambush while making a routine security check of defendant’s unlighted premises was denied on the ground that the risk to which the decedent had been subjected was “inherent in the occupation” and thus not unreasonable. Applying that reasoning to the case before it, the Washington court agreed with Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576, and Netherton v. Arends (1967), 81 Ill. App. 2d 391, 225 N.E.2d 143, that since most fires occur because of negligence, to hold a landowner liable to a firefighter would impose an unreasonably heavy burden on him. The court then set out what is commonly referred to as the “fireman’s rule” (see Court v. Grzelinski (1978), 72 Ill. 2d 141, 379 N.E.2d 281; Annot., 11 A.L.R. 4th 597 (1982)), stating that “while a landowner owes a duty of reasonable care to maintain his property so as to prevent injury occurring to a fireman from a cause independent of the fire he is not liable for negligence in causing the fire itself.” Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108, 361 N.E.2d 282, 285.

In the instant case, plaintiff’s amended complaint is not based upon negligence. It essentially alleges that certain wilful and wanton misconduct on the part of defendants in the maintenance of their building caused the fire in question and that, as a result of the fire, a chimney collapsed, causing injury to plaintiff. In the oral arguments before us, plaintiff acknowledged that the collapse of the chimney occurred because of the fire.

Although plaintiff concedes that Washington and its appellate antecedents preclude recovery for damages in cases involving negligent causation of a fire, he nevertheless asserts that these cases are distinguishable from the one before us in that liability here is predicated upon wilful and wanton misconduct in causing the fire. Citing Marquart v. Toledo, Peoria & Western R.R. Co. (1975), 30 Ill. App. 3d 431, 333 N.E.2d 558, for the general proposition that a firefighter may recover for the wilful and wanton misconduct of a landowner, plaintiff argues that the line of precedential authority culminating in the Washington decision is inapplicable to this case. We disagree.

Initially, we note that in Marquart, which was decided prior to Washington, the plaintiff-firefighter filed a complaint alleging both negligence and wilful and wanton misconduct. The court first determined that the allegations in the negligence count related only to acts causing the fire or contributing to its severity, and it therefore held that they were insufficient to sustain a cause of action. The Marquart court then observed that except for the additional assertion that defendant knew or should have known that its acts would likely cause injury, the allegations in the wilful and wanton count were identical to those in the negligence count. Accordingly, the court held that defendant’s motions for summary judgment on both counts should have been granted, and remanded the case to the trial court with directions to enter such judgments. While the Marquart court did say that “Illinois courts have recognized that a fireman may recover where the injuries were caused by the wilful and wanton misconduct of the owner or occupant of premises where the fire occurred” (Marquart v. Toledo, Peoria & Western R.R. Co. (1975), 30 Ill. App. 3d 431, 434, 333 N.E.2d 558, 560), it did not draw the distinction, as did the more recent cases cited above — including Washington — as to whether the condition causing injury was related or unrelated to the fire. Such a distinction was drawn, however, in Young v. Toledo, Peoria & Western R.R. Co. (1977), 46 Ill. App. 3d 167, 360 N.E.2d 978, where the court, relying on the reasoning in Washington, affirmed a dismissal by the trial court of a count in the complaint of plaintiff — a firefighter — seeking recovery on allegations of wilful and wanton misconduct relating only to the manner in which the fire was caused.

Furthermore, the fact that plaintiff’s complaint also alleged violations of building and safety codes does not remove the facts here from the purview of the “fireman’s rule.” As the court stated in Washington:

“These acts relate only to the manner in which the fire was caused. We have rejected as overly broad a reading on Dini v. Naiditch which would permit liability to be predicated upon negligence in causing a fire as a matter of common law. We see no reason for a different result where the conduct that causes the fire is also a violation of a statute or an ordinance. As we stated previously, the function of a fireman is to deal with fires, and he assumes the risks normally associated with that function ***.” Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 109, 361 N.E.2d 282, 285. See also Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576.

We think it significant that in discussing the issue of liability predicated on statutory violations rather than on common law tort principles, the supreme court, in Washington, did not distinguish between negligent and wilful and wanton violations, referring simply to “conduct that caused the fire.” Thus, contrary to plaintiff’s reading of Washington, we do not believe that the nature of a defendant’s conduct is determinative of the issue of landowner liability to an injured firefighter.

Moreover, we do not believe, as plaintiff suggests, that our holding here is inconsistent with that in Court v. Grzelinski (1978), 72 Ill. 2d 141, 379 N.E.2d 281, wherein the supreme court affirmed the judgment of the appellate court reinstating that portion of plaintiff’s complaint seeking recovery from the manufacturer and seller of an automobile on the theory of strict liability, on the ground that the plaintiff was a person to whom injury from the vehicle’s defective gasoline tank— which exploded as he was extinguishing a fire in the car — was reasonably foreseeable. In so holding, the Grzelinski court did not abandon the “fireman’s rule,” but merely rejected the opportunity to extend it “beyond its limited context of landowner/occupier liability.” Court v. Grzelinski (1978), 72 Ill. 2d 141, 151, 379 N.E.2d 281, 285.

For the reasons stated, the order of the trial court dismissing plaintiff’s complaint for failure to state a cause of action is affirmed.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    ANTHONY FABIAN et al., Plaintiffs-Appellants, v. POLISH AMERICAN VETERANS ASSOCIATION OF AMERICA et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—1974
    Opinion filed July 3, 1984.

      Michael D. Spinak & Associates, of Chicago (Arthur H. Levinson, of counsel), for appellants.
    Heineke, Burke & Healy, of Chicago (L. Barrett Bodach, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff Anthony Fabian (Fabian), a Chicago police officer, and his dependents brought an action in the circuit court of Cook County under the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) against defendant Polish American Veterans Association (Association) alleging that the Association “owned” and “controlled” the building located at 1239 North Wood Street in Chicago. On October 8, 1978, the Association allegedly “sold or gave away alcoholic liquors” on its premises to one Pablo Magana, a guest at a wedding reception being held in the building. Magana became intoxicated and stabbed Anthony Fabian in the chest with a knife. Plaintiffs sought damages for injury and loss of support. Anthony Fabian sought $100,000 in damages, and the other plaintiffs each asked for $25,000 in damages.

The Association acknowledged that it owns the premises in question and that it is the operator of a “licensed tavern” located in the building. In an affidavit attached to the Association’s motion for summary judgment, John Bogusz, commander of the Polish American Veterans Association, stated that the Association operates a clubroom on the second floor of the building where it serves alcohol only to its members. Pablo Magana is not a member of the Association. Bogusz stated further that on October 8, 1978, the Association rented the large hall located on the third floor of the building to a “Spanish group” for a wedding reception. The Association “rents the hall only” and does not provide any other services or food or drinks. The lessee in this instance provided all liquor or food served at the reception.

In his deposition Pablo Magana stated the following: he was invited to the reception by a friend in the wedding party. Prior to arriving at the party, he drank two beers but was not intoxicated. “Some people related to the guys that were getting married” served wine, mixed drinks, champagne and beer at the reception. A friend of Ma-gana’s went to the kitchen area of the hall and brought beer to the table where he was seated. Magana had “three or four” beers, and when “they ran out,” Magana’s friend went to a liquor store away from the Association’s building, purchased a case of beer and brought the beer back to Magana’s table. Magana again had “three or four” beers from the case. When Magana left the reception he was intoxicated. Magana was standing in the street drinking a can of beer and waiting for a friend to pick him up in a car when “all of a sudden something hit [him].” Magana saw police cars, and a police officer (apparently Fabian) told Magana he was under arrest for drinking. The police officer pushed Magana and ordered him into the police car. When Magana’s brother commenced “arguing” with a second police officer, Officer Fabian grabbed Magana from behind. Magana “took out” his knife. Magana acknowledged that he intended to stab Fabian but could not remember whether he in fact did stab him.

The trial court granted the Association’s motion for summary judgment, holding that “any gift of liquor on the [Association’s] premises was during a wedding reception, a private social function, and no liability for such an occurrence is imposed under the Dram Shop Act, which imposes liability only on those in the liquor traffic.”

Plaintiffs contend that the Association is “in the business of renting its hall” for pecuniary gain and that the Association “permitted the distribution of alcoholic beverages on its premises.” Thus, plaintiffs argue that the Association is “indirectly engaged” in the liquor traffic and is liable for damages under the Dramshop Act. Plaintiffs suggest that a liberal construction of the Dramshop Act would favor their position in this case.

The Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) provides, in relevant part:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. Any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused the intoxication of any person, shall be liable, severally or jointly, with the person selling or giving the liquors.” (Emphasis added.)

As the court stated in Miller v. Owens-Illinois Glass Co. (1964), 48 Ill. App. 2d 412, 423, 199 N.E.2d 300, 306:

“[T]he Dram Shop Act was intended to regulate the business of selling, distributing, manufacturing and wholesaling alcoholic liquors for profit. In other words, it was to regulate those in the business, not the social drinker or the social drinking of a group. ***
* * *
It is true that the language of the Act in section 135 is directed to one who sells or gives. We interpret the word ‘giving’ as applicable only to one engaged in the liquor business.” (Emphasis added.)

The purpose of the Dramshop Act is to impose the costs resulting from its violation upon those profiting from the sale of liquor to the public. Heldt v. Brei (1983), 118 Ill. App. 3d 798, 455 N.E.2d 842.

“Noncommercial suppliers of liquor are not liable under the Dram-shop Act [citation], and Illinois courts have consistently refused to enlarge the scope of the Act to impose liability upon anyone not engaged in the liquor business.” Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 732, 394 N.E.2d 801, 802.

In the instant case, Fabian contends that the Association is “indirectly engaged” in the liquor business because the Association profited from its rental of the hall to persons who distributed alcoholic beverages. The record, however, does not disclose any “sale” or “giving” of alcoholic beverages by one engaged in the “liquor business.” Neither the Association nor the “Spanish group” was in the liquor business or constituted a “seller” of intoxicating liquor within the meaning of the Dramshop Act. According to Bogusz’ uncontradicted affidavit, the Association did not provide any alcoholic beverages for the reception or to Magana. In his deposition Magana stated he drank two beers before he arrived at the reception, he consumed three or four beers that were provided by the wedding party hosts, and he consumed three or four more beers from the case his friend purchased from a liquor store located away from the Association’s building.

To impose liability on the Association in the instant case would make no distinction between those engaged in the liquor business for profit and those who hold social gatherings where liquor is dispensed. (See Miller v. Owens-Illinois Glass Co. (1964), 48 Ill. App. 2d 412, 199 N.E.2d 300.) To so hold would be to enlarge by judicial interpretation the scope of the Dramshop Act.

We subscribe to the line of cases that have consistently refused to enlarge by judicial interpretation the scope of the Act. (Heldt v. Brei (1983), 118 Ill. App. 3d 798, 455 N.E.2d 852; Camille v. Berry Fertilizers, Inc. (1975), 30 Ill. App. 3d 1050, 334 N.E.2d 205; Miller v. Owens-Illinois Glass Co. (1964), 48 Ill. App. 2d 412, 199 N.E.2d 300.) Any extension of liability under the Act to persons not engaged in the “liquor business” is the prerogative of the legislature.

With regard to Fabian’s contention that a liberal construction of the Dramshop Act would enable him to maintain his action, we note the apparent ambiguity between the express language of the Act and the judicial construction which has been accorded to this language by Illinois courts. Section 1, article 1, of the Dramshop Act (Ill. Rev. Stat. 1977, eh. 43, par. 94) provides:

“Section 1. This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.” (Emphasis added.)

“The language of the Dram Shop Act which declares it remedial in purpose and to be liberally construed, and the decisions of our courts holding the Act to be regulatory, disciplinary and penal in character and to be strictly construed while apparently diametrically opposed theories of construction, can be reconciled only by taking the language of both the Act and the decisions and adapting such language to each case on its merits and facts.” (Emphasis added.) Miller v. Owens-Illinois Glass Co. (1964), 48 Ill. App. 2d 412, 422, 199 N.E.2d 300, 305-06.

Based on the facts before us, it is our opinion that the trial court properly construed and applied the Act and did not err in granting summary judgment to defendant.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

HARTMAN, P.J., and DOWNING, J., concur.

      Section 14 of article VI of the Dramshop Act provides in relevant part: “In no event shall the judgment or recovery under this Act for injury to the person or to the property of any person as aforesaid exceed $15,000, and recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid shall not exceed *** $20,000 for each person so injured ***.” Ill. Rev. Stat. 1977, ch. 43, par. 135.
      At oral argument plaintiffs’ counsel acknowledged that the amount of damages sought was in excess of the statutory limit.


author: PRESIDING JUSTICE MEJDA

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. SHAKER ODEH, et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—1952
    Opinion filed July 13, 1984.
    Roderick F. Mollison, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Peter C. Morse, of counsel), for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants, Shaker Odeh and his wife, Madeline Odeh, appeal from a declaratory judgment entered in favor of plaintiff, Allstate Insurance Co., which found that plaintiff had no obligation to defend or to indemnify defendant, Shaker Odeh. We affirm.

This cause arose out of a collision with a bus in which defendant Madeline Odeh was injured in an automobile driven by defendant Shaker Odeh. Madeline Odeh filed suit against the bus company and driver who in turn filed a third-party complaint for indemnity and contribution against Shaker Odeh. The Odehs had been issued a policy of insurance by plaintiff which provided for bodily injury and property damage insurance arising from automobile accidents. Plaintiff filed its complaint for declaratory judgment, praying that the court find that it had no duty to defend or to indemnify because of a policy exclusion which provided that “[t]his coverage does not apply to liability for: *** (6) Bodily injury to any person related to a person insured by blood, marriage, or adoption and residing in that person’s household.” The trial court held that plaintiff had no duty to defend or to indemnify. Defendants appeal.

Opinion

Plaintiff raises two issues on appeal. First, he contends that an insurance company’s duty to defend cannot be avoided by the mere filing of a third-party complaint for contribution. Second, he contends that the contract of insurance at issue in the instant case is ambiguous and must accordingly be construed against plaintiff.

In support of his first contention, plaintiff asserts that the release of an insurer from its contractual duties to defend and to indemnify, prior to a determination of the issues raised by the third-party complaint, violates due process of law. “In this jurisdiction an insurer’s duty to defend an action against its insured is determined by the allegations of the complaint. [Citations.] An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage.” (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245.) The relevant question before us then is whether the third-party complaint against Shaker Odeh alleged facts which would potentially bring the case within the policy’s coverage.

This question was answered by this court in State Farm Mutual Automobile Insurance Co. v. Suarez (1982), 104 Ill. App. 3d 556, 432 N.E.2d 1204. The court in Suarez held that a clause providing that “*** There is no coverage *** for any bodily injury to * * * any member of the family of the insured residing in the same household as the insured ***” justified summary judgment for the insurer as to the existence of a duty to indemnify in a similar factual setting. Suarez was followed in State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 459 N.E.2d 1075. The policy before us is not sufficiently distinguishable from the policies in Suarez and Palmer to justify departing from the holdings of those cases. We conclude, therefore, that the third-party complaint for contribution fails to allege facts which would potentially bring the case within the coverage of the policy. It follows therefrom that there is no duty to defend under the policy. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245.) This is so not because there is no duty to indemnify but because there is no coverage under the policy. See 92 Ill. 2d 388, 394.

Defendants’ argument that the policy is ambiguous is also, we believe, refuted by Suarez. (State Farm Mutual Automobile Insurance Co. v. Suarez (1982), 104 Ill. App. 3d 556, 558-59, 432 N.E.2d 1204.) We also find no merit to defendants’ constitutional argument that due process requires an adjudication of the third-party contribution action before a declaration of rights may properly be made. We perceive this essentially as an attack on the declaratory judgment procedure, which we view as unquestionably within due process limits. See Ill. Ann. Stat., ch. 110, par. 2—701, Historical and Practice Notes, at 6 (Smith-Hurd 1983).

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    EUGENE HUTCHINSON, Plaintiff-Appellant, v. JAMES REAVES et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 83—1662, 83-1719 cons.
    Opinion filed July 12, 1984.

      Anesi, Ozmon, Lewin & Associates, of Chicago (Larry M. Evans, of counsel), for appellant.
    Iversen, Carlson & Associates, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Eugene Hutchinson, appeals an order of the trial court requiring him to pay to defendants, James Reaves and Conalco Contract Carriers, Inc., costs, fees and expenses in the amount of $7,181.35. He raises two issues for review: (1) whether the trial court committed reversible error when it granted defendants’ motion pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611), and (2) whether the trial court erred in fixing the amount of fees and expenses.

We reverse.

On December 18, 1980, plaintiff filed suit against the following parties: Joseph Wolfe, Jack Freeman, Maria Gonzalez, John Morris, L & V Leasing, Nationwide Distributors, Reaves and Conalco. He alleged that on July 2, 1980, he was driving an automobile on a highway in Cook County, when a collision occurred between his vehicle and a vehicle driven by Wolfe. Plaintiff also alleged that vehicles driven or owned by other defendants collided with each other, presumably in a chain accident. Plaintiff claimed he was injured as a result of the negligent acts of defendants and prayed for damages of $200,000.

Gonzalez moved for summary judgment because, at plaintiff’s discovery deposition, he testified that the alleged chain reaction collision occurred after the original impact between plaintiff’s vehicle and that of defendant Wolfe. The trial court granted summary judgment to all defendants with the exception of Wolfe and Freeman, for whom the cause was continued. Subsequently, at trial, a jury found for Wolfe and Freeman and against plaintiff.

Pursuant to the grant of summary judgment in their favor, defendants Reaves and Conalco petitioned for attorney fees under section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611.) On June 2, 1983, the trial court ordered plaintiff to pay to defendants fees and costs amounting to $7,181.35. Plaintiff appeals.

Section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611) provides in pertinent part as follows:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

The threshhold issue in the instant case is whether the trial court properly granted attorney fees and costs to defendants under this provision.

Under section 2 — 611 of the Code, attorney fees may be awarded for allegations made without reasonable cause and found to be untrue. It was enacted to prevent abuse of the judicial process. Its application is limited to cases where a party has abused his right to free access to the courts by pleading untrue statements of fact which the party knew or reasonably should have known were untrue. (Fewer v. Grant (1982), 111 Ill. App. 3d 747, 750, 444 N.E.2d 628, 630.) Attorneys are presumed to have due regard for their responsibility as officers of the court and they are allowed to exercise broad discretion based upon an honest judgment from the facts presented to them. The overriding public policy of Illinois is that potential suitors should have free and unfettered access to the courts. Fewer v. Grant (1982), 111 Ill. App. 3d 747, 751, 444 N.E.2d 628, 630.

In his memorandum decision, the trial judge found that plaintiff’s vehicle came into contact with only one vehicle, the truck which hit it. After this contact, plaintiff looked back and saw another accident unconnected to his own. In plaintiff’s deposition, he stated that the vehicle behind the truck which hit him had nothing to do with his accident. Plaintiff also stated that the people behind the truck were sued because “we were all involved in one accident, in one occurrence.” The trial court found that allegations in plaintiff’s original complaint, filed December 18, 1980, and amended complaint, filed June 28, 1982, against defendants Reaves and Conalco were untrue “before, during and after they were made” and that they were made without reasonable cause. The court noted that the complaint was not filed hastily to defeat an impending statute of limitations bar (plaintiff had until July 2, 1982, to file his complaint) and that in March 1981 one of the original defendants denied plaintiff's multiple-vehicle single-accident theory. In March 1982, another defendant disputed plaintiff’s theory. On June 2, 1983, the trial court ordered plaintiff to pay attorney fees of $6,131.25 and court costs of $1,050.10 to Reaves and Conalco.

In Fewer v. Grant (1982), 111 Ill. App. 3d 747, 444 N.E.2d 628, Peoples Gas Light & Coke Company (Peoples Gas) sued the receiver of a building for an amount owing for gas service. Peoples Gas alleged in an amended complaint filed April 10, 1981, that the receiver had not advised the court that the property could not be operated in a profitable manner. In fact, the receiver had advised the court in his first report of July 13, 1976, that rental income would not offset the cost of repairs nor cover monthly operating expenses. We reversed an award of attorney fees, holding that the allegations in the complaint were not made without reasonable cause.

In the instant case, although plaintiff said in his deposition that the vehicle behind the truck had nothing to do with his accident, he also said that all the parties were involved “in one accident, in one occurrence.” In the traffic accident report, Wolfe, Gonzalez, Morris, and Reaves, as well as plaintiff, were named. We conclude that the allegations against Reaves and Conalco, his employer, were not made without reasonable cause. Therefore, we hold that the trial court improperly awarded attorney fees and costs to defendants Reaves and Conalco. Because of this holding, it is unnecessary to address the other issue raised by plaintiff.

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

Reversed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE REINHARD

text:
    THE CITY OF NAPERVILLE, Plaintiff-Appellant, v. GEORGE MORGAN, Defendant-Appellee.
    Second District
    No. 2—83—1014
    Opinion filed July 26, 1984.
    Francis J. Cuneo, Jr., of Naperville, and Robert P. Sheridan, of Chicago, for appellant.
    Norman H. Lehrer, of Lehrer & Flaherty, of Wheaton, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The city of Naperville appeals from an order granting defendant George Morgan’s motion to quash his arrest and dismissing Naper-ville’s complaint against him for a violation of its ordinance prohibiting driving while intoxicated (DWI).

The issue before us is whether a finding by the trial court of no probable cause to arrest defendant for DWI in an implied consent proceeding entered upon the stipulation of the State’s Attorney on behalf of the State collaterally estops the city of Naperville from thereafter prosecuting defendant under its ordinance for the same DWI violation.

The record reveals that on March 29, 1983, defendant was issued a citation for violation of local ordinance 13 — 801, DWI, which listed Naperville as the plaintiff. Upon defendant’s motion alleging, inter alia, his failure to receive notification that the arresting officer in this case had filed the requisite affidavit of defendant’s refusal to submit to chemical tests following his arrest for DWI, the trial court vacated the suspension of defendant’s driver’s license and set a hearing on the issue of whether probable cause existed for requesting defendant to take the chemical test following his arrest for DWI. Notice of this motion was directed to the State’s Attorney. In a subsequent written order dated August 12, 1983, the trial court found “by stipulation, no probable cause for defendant’s arrest on March 29, 1983, for Driving While Under the Influence of Intoxicating Liquor,” and set the matter for status.

Defendant then filed a motion to quash his arrest, contending, in pertinent part, that the prior finding of no probable cause to arrest him for DWI was res judicata as to the pending DWI ordinance charge, and that the court should dismiss the DWI charge against him. Naperville filed an answer to this motion asserting that it had not entered into the stipulation of no probable cause to arrest, that it was not a party to the implied consent proceeding, and that the parties in the implied consent proceeding were the State of Illinois and the defendant. On October 18, 1983, the trial court in a written order found that on the issue of probable cause for arrest of the defendant, the order of August 12, 1983, had the “effect of collateral estoppel or issue preclusion,” granted the motion to quash defendant’s arrest, and dismissed the DWI complaint. It is evident from the transcript of the August 18, 1983, proceeding that Naperville was not involved in the stipulation on August 12, 1983, nor a party to the implied consent proceedings.

On appeal Naperville contends the trial court erred in applying the doctrine of collateral estoppel to quash defendant’s arrest and dismiss the DWI charge.

Although defendant contends that we should dismiss this appeal because Naperville has failed to include a transcript of the August 12, 1983, proceedings, the issue before us is one of law and the absence of the transcript of the August 12 proceeding will not bar our review as the record provided is adequate without this transcript. See Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 347, 395 N.E.2d 1131.

The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against the party in the former suit. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959.) The law is clear that one is not estopped or barred by a prior adjudication if he was not a party to such action and does not stand in the relation of privity to one who was a party. (Smith v. Bishop (1962), 26 Ill. 2d 434, 437-38, 187 N.E.2d 217.) The State of Illinois is a party to a proceeding under the implied consent provision of the Illinois Vehicle Code (see Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501.1), not the municipality under whose ordinance a defendant may be charged with DWI. (See People v. LaFrank (1982), 104 Ill. App. 3d 650, 432 N.E.2d 1282.) The implied consent hearing under section 11 — 501.1(c) is a separate and distinct proceeding and progresses independently of the related municipal prosecution for DWI. (See People v. Golden (1983), 117 Ill. App. 3d 150, 154, 453 N.E.2d 15.) Thus, Naperville was neither a party to the implied consent proceeding nor can it be said to be in privity with the State. (Cf Smith v. Bishop (1962), 26 Ill. 2d 434, 438, 187 N.E.2d 217; People v. LaFrank (1982), 104 Ill. App. 3d 650, 432 N.E.2d 1282.) Although defendant also contends on appeal that res judicata applies here, even though the trial court did not base its ruling on that principle of law, there also must be an identity of parties or someone with whom a party is in privity for the doctrine of res judicata to apply. Smith v. Bishop (1962), 26 Ill. 2d 434, 437, 187 N.E.2d 217.

For the foregoing reasons, the trial court erred in quashing the arrest and dismissing the case, and the cause is reversed and remanded for further proceedings.

Reversed and remanded.

NASH and LINDBERG, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    RELIANCE INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. JEROME B. MARTIN et al., Defendants-Appellants.
    First District (3rd Division)
    No. 82—1792
    Opinion filed June 20, 1984.
    Rehearing denied August 2, 1984.
    Glen E. Amundsen and Victor J. Piekarski, both of Querrey, Harrow, Gu-lanick & Kennedy, Ltd., of Chicago, for appellants.

      Judge, Kurnik & Knight, Ltd., of Chicago (Jay S. Judge, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Defendants, Jerome B. Martin and Richard P. Sullivan, d/b/a J. Martin Company (Martin Co.), appeal from the denial of their motion for judgment on the pleadings and the granting of plaintiff’s motion for summary judgment in favor of plaintiff, Reliance Insurance Company of Illinois (Reliance). The court held that Reliance was not obligated to defend or indemnify Martin Co. pursuant to a “pollution exclusion” in a comprehensive general liability insurance policy issued to Martin Co. by Reliance.

Candee Hoff and Arthur Hoff filed suit against Martin Co. and other defendants, who are not involved in this appeal, to recover damages for alleged personal injuries and property damage caused when carbon monoxide and soot entered their condominium unit from an adjacent parking garage operated by Martin Co.

In their complaint, framed in negligence, the Hoffs alleged that Martin Co. had failed: (1) to discover the condition; (2) to take preventive maintenance steps to avoid the release of carbon monoxide and black soot into the residential area of the condominium; (3) to efficiently and effectively remedy the problem upon discovery; and (4) to warn plaintiffs of the condition. The complaint further alleged that subsequent to the purchase of the condominium unit, Candee Hoff found that carbon monoxide “regularly” escaped into the condominium unit from the parking garage and that black soot entered the unit at “diverse times through the ventilating grates, walls or floors.” Candee Hoff further alleged that over a period of time she had discovered the condition.

Reliance had issued a comprehensive general liability insurance policy to Martin Co. Martin Co. forwarded Hoff’s complaint to Reliance for defense pursuant to the contract of insurance. On October 28, 1981, Reliance wrote to the Martin Co., disclaiming coverage for the Hoff claim on the basis of the following exclusion of the policy:

“This insurance does not apply:
* * *
(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon any land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”

On February 1, 1982, Reliance again wrote to Martin Co., reaffirming its decision that there was no coverage under the terms of the policy based on the exclusion provision. No reservation of rights letter was sent by Reliance to Martin Co. •

On February 2, 1982, Reliance filed a suit seeking a declaratory judgment that it had no obligation to defend Martin Co. under the contract of insurance because of the pollution exclusion. Martin Co. filed a motion for judgment on the pleadings with a supporting memorandum of law. In response, Reliance filed a motion for summary judgment and a memorandum of law in opposition to Martin Co.’s motion. A hearing on both motions was held on June 17, 1982, and the trial court entered an order denying Martin Co.’s motion for judgment on the pleadings and granting Reliance’s motion for summary judgment, on the basis of the pollution exclusion in the insurance contract. Martin Co. appeals.

I

The main issue on appeal is whether, under the allegations of the Hoff’s complaint, the alleged release of carbon monoxide and soot into the Hoff’s condominium unit could have been “sudden and accidental” so as to remove it from the pollution exclusion. If so, Reliance would have the responsibility to defend the Hoff complaint under the terms of the general liability insurance policy. An insurer must defend a claim where any of the allegations of the complaint fall within, or potentially within, the coverage provided. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 27.) Where the terms of an insurance policy are ambiguous or are subject to more than one reasonable construction, the policy should be construed in favor of the insured and strictly against the insurer. (Willett Truck Leasing Co. v. Liberty Mutual Insurance Co. (1980), 88 Ill. App. 3d 133, 410 N.E.2d 376; Allstate Insurance Co. v. Klock Oil Co. (1980), 426 N.Y.S.2d 603, 73 App. Div. 2d 486.) This is especially true as to any ambiguities found in an exclusionary clause. (Thomas J. Lipton, Inc. v. Liberty Mutual Insurance Co. (1974), 34 N.Y.2d 356, 357 N.Y.S.2d 705, 314 N.E.2d 37; Allstate Insurance Co. v. Klock Oil Co. (1980), 426 N.Y.S.2d 603, 73 A.D.2d 486.) However, a court should not invent an ambiguity where in fact none exists. Willett Truck Leasing Co. v. Liberty Mutual Insurance Co. (1980), 88 Ill. App. 3d 133, 410 N.E.2d 376.

The Willett case appears to be the only Illinois case to have dealt with the issue of a pollution exclusion clause. In Willett the plaintiff had allegedly been injured when carbon monoxide fumes entered the cab of the truck which he was operating and which had been leased from Willett. The complaint was silent as to the time or manner of how the fumes escaped into the plaintiff’s cab. When Liberty Mutual, Willett’s insurer, refused to defend on the basis of a pollution exclusion clause, which was identical to the one in the case at bar, Willett filed a declaratory judgment action against Liberty Mutual seeking coverage and a defense. The trial court entered summary judgment for the insured, Willett. This court affirmed, stating that it was clear that the fumes which entered the cab could have been sudden and accidental in nature. Thus, Liberty Mutual was obligated to defend Wil-lett against the action since the duty to defend is broader than the duty to indemnify. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; Grinnell Mutual Reinsurance Co. v. Frier-dich (1979), 79 Ill. App. 3d 1146, 399 N.E.2d 252.) This court held that whether coverage was ultimately available under the contract was a question of fact to be decided by the trier of fact, concerning the nature of the fumes.

In the instant matter, unlike Willett, the complaint alleged that the fumes and soot entered the Hoff condominium at diverse times and over a period of time. Reliance asserts that this precludes any question as to whether the entrance of the fumes was sudden and accidental. This particular issue has not been addressed by the Illinois courts. However, in Allstate Insurance Co. v. Klock Oil Co. (1980), 426 N.Y.S.2d 603, 73 App. Div. 2d, 486, the New York Supreme Court, Appellate Division, in construing a pollution exclusion clause identical to the one in the instant case, stated that in determining whether a certain result is “accidental” the term must be given its ordinary and popular meaning in the business liability insurance area. If there was no intent to cause harm, then any injury resulting from ordinary negligence is considered accidental. The “accident” is the undesigned event and this may include the natural and ordinary consequences of a negligent act.

The New York court further stated: “[T]he word ‘sudden’ as used in liability insurance need not be limited to an instantaneous happening. [Citations.] The term ‘sudden and accidental’ must be construed in its relevant context. The relevant context *** is the fact that it is a term employed by an insurer in the contract and should be given the construction most favorable to the insured. Thus, regardless of the initial intent or lack thereof as it relates to causation, or the period of time involved, if the resulting damage could be viewed as unintended by the factfinder, the total situation could be found to constitute an accident. [Citation.]” 426 N.Y.S.2d 603, 605, 73 App. Div. 2d 486, 488-89.

Under this analysis the relevant question is not the time frame involved but whether Martin Co., the insured, could have intended or expected carbon monoxide and soot to enter the Hoffs condominium unit. Although, clearly, the operator of a parking garage must expect to release fumes and soot into the facility itself, as well as into the air and streets, it is not equally clear that he should expect to release soot and fumes into adjacent residential structures. We believe this constitutes a question of fact.

It is well established that summary judgment should be entered only when the pleadings, depositions and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1005(c).) Since a question of fact remains regarding whether the alleged damages to the Hoffs as a result of the soot and fumes generated by the Martin Co. were sudden and accidental, summary judgment was improperly entered in favor of Reliance. The trial court erred in not granting Martin Co.’s motion for judgment on the pleadings, requiring Reliance to assume the defense of the action by the Hoffs against Martin Co. An insurer must defend a claim when the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy. Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.

II

The second issue on appeal is whether Reliance, having wrongfully refused to defend Martin Co., is thereby estopped from raising coverage defenses if there should be a subsequent finding that the damages suffered by the Hoffs were not sudden and accidental and, therefore, within the pollution exclusion in the insurance contract. The rule in Illinois appears to be well established that in cases of doubt as to coverage, an insurer has an obligation to the insured either to defend under a reservation of the right to deny coverage at a later date, or to seek a declaratory judgment as to its obligations. (Thornton v. Paul (1978), 74 Ill. 2d 132, 156, 384 N.E.2d 335; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) In the instant matter, Reliance sought a declaratory judgment regarding its obligation to defend the Martin Co. against the Hoff’s complaint one day after informing Martin Co. that there was no coverage under their insurance policy. We can find no fault in this regard. Thus, Reliance will not be estopped to deny coverage should the fact finder determine that the Hoff’s damages were not sudden and accidental.

Reversed.

RIZZI, RJ., and McNAMARA, J., concur.

      The record filed in this cause does not contain a copy of the Hoff complaint.


author: PRESIDING JUSTICE LINN

text:
    LOYD THOMPSON, d/b/a Spring Green Landscaping, Plaintiff-Appellant, v. SPRING-GREEN LAWN CARE CORP. et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—947
    Opinion filed June 7, 1984.
    Rehearing denied July 26, 1984.

      Marvin N. Benn and Wayne H. Michaels, both of Hamman, Benn & Miller, of Chicago, for appellant.
    Theodore A. Shapero, P.C., Diane Fields Geocaris, and Thomas F. Ge-selbracht, all of Rudnick & Wolfe, of Chicago, for appellees.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

On January 22, 1974, plaintiff, Loyd Thompson, and his business partner, Guenther Herden, entered into a contract with Robert Gora for the sale of a business known as “Spring Green Landscaping,” founded by Gora, who operated it from 1966 through 1974. In addition to customer lists, vehicles, machinery and equipment, the sale included the good will of the business and use of the business’s name, which Gora had registered in Cook County under the Assumed Name Statute in May 1968. Plaintiff registered the service mark “Spring Green” under the Illinois Trademark Act in May 1978.

Gora described the nature of Spring Green Landscaping as offering lawn maintenance, reconstruction and a “complete landscaping package.” A 1971 flier sent to prospective customers advertising Spring Green Landscaping described the lawn maintenance program offered as including

“Weekly lawn cutting and pick-up Fertilizing entire lawn area twice a year Trimming of any shrubs and evergreens up to three times a year Monthly edging of sidewalk areas Weeding around shrubs and any existing flower beds”

When plaintiff purchased the business in 1974, approximately three-quarters of the customer accounts involved fertilization as part of their lawn maintenance program. Plaintiff testified that over 50% of his customers have fertilizer and weed killer applied to their lawns.

Gora originally operated Spring Green Landscaping out of Brook-field but gradually expanded his services to customers in areas including LaGrange, Hinsdale, Darien, Naperville and Mount Prospect. Plaintiff operates the business out of Hinsdale and services communities in Cook, Du Page, and Will counties. Between 1974 and 1977, plaintiff advertised his business in the yellow and white pages of the telephone directories for the western suburbs of Chicago. In 1979, he also began advertising in the Contractors Trade Directory and paying the Welcome Wagon to distribute, in Oak Brook, a pot holder with the words “Spring Green” on it. In 1982, he resumed advertising, after a 10-year lapse, in the Contractors Register; and in 1981 and 1982, he began to advertise under the “Lawn Maintenance” category, in addition to the “Landscaping” category, so that in the Yellow Pages of the telephone directory for the western suburbs, his business listing appeared in the same column as defendant, “Spring-Green Lawn Care Corporation.” The mark “Spring Green” appears on plaintiff’s business cards, business records and landscaping equipment, including the pickup trucks which carry his equipment to the customers’ residences.

Defendant, Spring-Green Lawn Care Corporation (Spring-Green), is in the business of liquid chemical fertilization and insect and weed control for lawns, bushes and trees. Spring-Green was incorporated in Delaware in January 31, 1977, and certified to do business in Illinois on March 11, 1977. On March 21, 1977, Spring-Green filed an application with the U.S. Patent and Trademark Office for registration of its service mark “Spring-Green.” When defendant’s mark was published for opposition, plaintiff filed an opposition, and the record suggests no U.S. patent was ever issued. On March 22, 1977, defendant obtained a certificate of registration for the mark “Spring-Green” from the State of Illinois and has obtained State service mark registration in Iowa and Indiana as well.

• The chemical lawn treatment concept upon which Spring-Green was founded was developed by defendant William R. Fischer, a director, shareholder, and president of the corporation. Defendant H.R.M. Enterprises, Inc. (H.R.M.), is a franchisee of Spring-Green, and defendant Edward Carroll was manager of H.R.M.

Spring-Green began franchising its operation in 1977 through a pilot program covering communities in the western suburbs of Cook County, with its principal place of business in Naperville, Illinois. At the time of trial, Spring-Green had expanded to 41 franchises operating throughout the northern Illinois area.

The basic Spring-Green program of lawn care consists of four applications per year of a chemical fertilizer, including weed, crabgrass and insect control. The liquid chemical fertilizer is delivered in tank trucks and is sprayed on the lawn. The program is limited to lawn treatment and includes no landscaping or lawn mowing.

Defendant’s logo consists of the words “Spring-Green” in white letters on a green background and a stylized “SG” formed around droplets, in a circular form. Although the logo is sometimes captioned with the words “Professional Lawn & Tree Care,” “Spring-Green” is the salient part of the mark. The mark is used on the corporation’s advertising brochures, envelopes, office forms, stationery, and trucks. Spring-Green advertises in the yellow pages of the telephone directory for the western suburbs, also under the headings of “Landscaping” and “Lawn Maintenance.”

In April 1979, plaintiff first learned of the existence of Spring-Green and, through his attorney, sent Spring-Green and H.R.M. a cease and desist letter claiming his exclusive right to use the mark “Spring Green.” On April 24, 1978, Thompson’s attorney sent a second cease and desist notice to Spring-Green. Defendant Fischer claims it was at this time that he first learned of the existence of Spring Green Landscaping. Defendant Carroll, however, testified that he had known of Spring Green Landscaping for “several years” prior to actual receipt of the cease and desist notice.

Defendants continued and continue to use and advertise the service mark “Spring-Green” in their lawn care franchising business and to expand their franchise operation.

In July 1978, plaintiff filed a seven-count complaint, alleging Federal and State statutory service mark infringement (15 U.S.C. sec. 1125(a) (1982); Ill. Rev. Stat. 1981, ch. 140, par. 19), common law infringement, dilution of trade name (Ill. Rev. Stat. 1981, ch. 140, par. 22), and common law and statutory unfair competition (Ill. Rev. Stat. 1981, ch. 121V2, par. 312). Both parties moved for summary judgments; upon both motions being denied, trial commenced.

At trial, plaintiff introduced four witnesses who testified as to their actual confusion between the two service marks “Spring Green” and “Spring-Green.” In addition, plaintiff testified that he had received over 300 telephone calls between 1978 and 1982 from callers who were actually seeking Spring-Green, the defendant corporation. Plaintiff also submitted into evidence letters and checks, intended for the defendant, that had mistakenly been sent to plaintiff.

Defendants moved for a directed finding at the close of plaintiff’s case. On March 25, 1983, the trial court granted defendants’ motion and dismissed plaintiff’s case with prejudice. It is from the order . granting the directed finding plaintiff now appeals.

Opinion

I

In nonjury cases, the defendant may move for a directed finding in his favor at the close of plaintiff’s case. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110.) In ruling on the motion, the trial court must consider all of the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence presented. (Justine Realty Co. v. American Can Co. (1983), 119 Ill. App. 3d 582, 456 N.E.2d 871.) In any case in which the plaintiff has not presented at least some evidence on every essential element of his cause of action, the defendant is entitled to judgment in his favor as a matter of law. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.) Thus, in deciding a motion made pursuant to Code of Civil Procedure section 2 — 1110, the trial court must determine whether plaintiff has made out a prima facie case, and, on appeal, the decision of the trial judge should not be reversed unless it is against the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E .2d 43.

II

Plaintiff’s action is essentially one of trademark or service mark infringement. Under the Illinois Trademark Act (Ill. Rev. Stat. 1981, ch. 140, par. 8(a)),

“ ‘Mark’ includes any trade-mark or service mark whether registered or not. *** ‘Service mark’ means anything adopted and used by a person to identify services rendered by him or with his authorization and which distinguishes them from services rendered by others.”

The principles of trademark law and the tests for infringement are basically the traditional ones of common law under both State and Federal statutes. (Berghoff Restaurant Co. v. Lewis W. Berghoff, Inc. (N.D. Ill. 1973), 357 F. Supp. 127, aff’d (7th Cir. 1974), 499 F.2d 1183.) Because the statutes themselves neither create a valid trademark nor establish new rights, courts apply a single analysis to Federal, State, and common law claims. (Ye Olde Tavern Cheese Products, Inc., v. Planters Peanuts Division, Standard Brands Inc. (N.D. Ill. 1966), 261 F. Supp. 200, affd (7th Cir. 1967), 394 F.2d 833.) We may therefore look to Federal as well as to State case law in resolving the instant issues.

The resolution of a trademark infringement claim necessarily involves a two-step analysis. First, the court must determine if the mark used by the party alleging infringement is in fact a valid mark. If the trademark or service mark is not valid, i.e., legally protectable, an infringement action cannot lie, and the inquiry is at an end. If, however, the plaintiff’s mark is of the type for which the law affords protection, the court must proceed to determine if the alleged infringor’s use of a similar mark brings about “likelihood of confusion” on the part of the consuming public. (St. Charles Manufacturing Co. v. St. Charles Furniture Corp. (N.D. Ill. 1979), 482 F. Supp. 397; Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App. 3d 338, 290 N.E.2d 701.) If so, a right to relief for infringement has been shown.

The first inquiry in the instant case must then be whether the words “Spring Green,” as used in that particular combination, may be employed as a service mark, or whether this combination of words belongs in the public domain such that plaintiff’s use of it is not entitled to legal protection. In other words, is “Spring Green” a valid mark.

A term for which trademark protection is sought will fit into one of four categories ranging from (1) generic or common descriptive and (2) merely descriptive, to (3) suggestive and (4) arbitrary or fanciful. (Miller Brewing Co. v. G. Heileman Brewing Co. (7th Cir. 1977), 561 F.2d 75, cert. denied (1978), 434 U.S. 1025, 54 L. Ed. 2d 772, 98 S. Ct. 751.) The Miller court deftly summarized these four categories as follows:

“A generic or common descriptive term is one which is commonly used as the name or description of a kind of goods. It cannot become a trademark under any circumstances. [Citations.] ***
A merely descriptive term specifically describes a characteristic or ingredient of an article. It can, by acquiring a secondary meaning, i.e., becoming ‘distinctive of the applicant’s goods,’ *** become a valid trademark. [Citation.]
A suggestive term suggests rather than describes an ingredient or characteristic of the goods and requires the observer or listener to use imagination and perception to determine the nature of the goods. Such a term can be protected without proof of a secondary meaning.” Miller Brewing Co. v. G. Heileman Brewing Co. (7th Cir. 1977), 561 F.2d 75, 79, cert. denied (1978), 434 U.S. 1025, 54 L. Ed. 2d 772, 98 S. Ct. 751.

“An Act to provide for the registration and protection of trademarks ***” (the Illinois Trademark Act) plainly excepts from registration those marks which, when applied to the goods or services of the applicant, are “merely descriptive” unless that mark has become distinctive of the applicant’s goods or services. (Ill. Rev. Stat. 1981, ch. 140, par. 9(e)(1).) The Act further states:

“The Secretary of State may accept as evidence that the mark has become distinctive, as applied to the applicant’s goods or services, proof of continuous use thereof as a mark by the applicant in this State or elsewhere for the 5 years next preceding the date of the filing of the application for registration ***.” (Ill. Rev. Stat. 1981, ch. 140, par. 9(e)(3).)

Registration under the Lanham Act (15 U.S.C. secs. 1051-1127) (1982)) or under the Illinois Trademark Act (Ill. Rev. Stat. 1981, ch. 140, pars. 8 through 22) creates a presumption of adoption and continued use and is prima facie evidence of validity. Ye Olde Tavern Cheese Products, Inc. v. Planters Peanuts Division, Standard Brands Inc. (N.D. Ill. 1966), 261 F. Supp. 200, affd (7th Cir. 1967) 394 F.2d 833.

Bearing in mind that at this level of inquiry, we are dealing solely with the validity or protectability of the mark, we must conclude the following: (1) registration under the Illinois Trademark Act is prima facie evidence of validity (Mr. Travel, Inc. v. V.I.P. Travel Service, Inc. (N.D. Ill. 1966), 268 F. Supp. 958, affd (7th Cir. 1967), 385 F.2d 420), and (2) the Secretary of State will not issue a certificate of registration to those marks which are “merely descriptive” unless the Secretary finds that such marks, due to continuous use, have become distinctive.

We note initially that defendant’s attempt to rebut the presumption of validity is, to a great extent, undermined by its own action of registering the mark. Any argument of invalidity made by defendant based on the claim that the words “Spring Green” are merely descriptive has little credence in light of defendant’s prior registration under the Illinois Trademark Act. Perhaps aware of this inconsistency, defendant makes no direct argument that the mark is unprotectable but rather adopts the trial court’s reasoning and conclusion that the words “Spring Green” are merely descriptive and have not acquired a secondary meaning. The analysis necessary to reach this conclusion is included in defendant’s brief as a factor of “likelihood of confusion.” To understand this analysis and decide the merits of the trial court’s conclusion, in order to determine whether defendant has met its burden of proving the mark invalid, we must examine the critical distinction, the one to be made in the instant case, between a “merely descriptive” mark and that is “suggestive.” Money Store v. Harriscorp Finance, Inc. (7th Cir. 1982), 689 F.2d 666.

In the instant case, plaintiff filed for and obtained a certificate of registration from the Secretary of State pursuant to the Illinois Trademark Act, on May 5, 1978. The certificate states that the service mark “Spring Green” was first used in 1967. Moreover, defendant, who now claims that the words “Spring Green” are merely descriptive and therefore not protectable, also filed for and obtained a certificate of registration for the service mark “Spring-Green.” While the Secretary could have found the mark “merely descriptive” but distinctive in the case of plaintiff, who had used the mark for five years preceding the date of application, such could not have been the case for defendant, who had incorporated the same year as the application was filed. Because the Secretary of State registered the marks “Spring Green” and “Spring-Green” without, in defendant’s case, proof of distinctiveness, he apparently found the mark to be suggestive. (Money Store v. Harriscorp Finance, Inc. (7th Cir. 1982), 689 F.2d 666.) The Secretary's repeated issuance of certificates for the service mark “Spring Green” therefore serves as a prima facie evidence of the mark’s validity, and the issuance to defendant serves additionally to negate classification of the mark as “merely descriptive.”

A prima facie case of validity thus having been established, the burden shifted to defendant to rebut the presumption of protectability.

In analyzing the distinction between “merely descriptive” and “suggestive,” the Seventh Circuit noted that

“One of the better statements of the distinction between merely descriptive and suggestive marks appears in A. Seidel, S. Dalroff, and E. Gonda, Trademark Law and Practice sec. 4.06, at 77 (1963): ‘Generally speaking, if the mark imparts information directly, it is descriptive. If it stands for an idea which requires some operation of the imagination to connect it with the goods, it is suggestive.’ (quoted in Union Carbide, 531 F.2d at 379); see also Tel-Med, 588 F.2d at 217 (‘A suggestive term suggests rather than describes an ingredient or characteristic of the goods and requires the observer or listener to use imagination and perception to determine the nature of the goods.’).” (Money Store v. Harriscorp Finance, Inc. (7th Cir. 1982), 689 F.2d 666, 673-74.)

The court in Money Store affirmed the district judge’s conclusion that “The Money Store” was a suggestive mark because the words did not convey the essence of the business. Conversely, courts have found the words “Lite” (Miller Brewing Co. v. G. Heileman Brewing Co. (7th Cir. 1977), 561 F.2d 75, cert. denied (1978), 434 U.S. 1025, 54 L. Ed. 2d 772, 98 S. Ct. 751), “Auto Page” (Gimix, Inc. v. JS & A Group, Inc. (7th Cir. 1983), 699 F.2d 901), and “Everready” (Union Carbide Corp. v. Ever-Ready Inc. (7th Cir. 1976), 531 F.2d 366, cert. denied (1976), 429 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91) descriptive because they directly impart information by describing a characteristic of the product.

Suggestive terms, however, do not describe the qualities of a particular product or service but rather require some operation of the imagination to connect the term with the goods or service. (Union Carbide Corp. v. Ever-Ready Inc. (7th Cir. 1976), 531 F.2d 366, cert. denied (1976), 429 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91.) Suggestive terms merely hint at the product or the result of using the product and yet, viewed in the abstract, do not readily lead to an identification of the product area. (Intellectual Property Law (Ill. Inst. Cont. Legal Educ. 1978).) Words which could not individually become a trademark, because taken separately they are either generic or descriptive, may become one when taken together. (Union Carbide Corp. v. Ever-Ready Inc. (7th Cir. 1976), 531 F.2d 366, cert. denied (1976), 429 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91.) The question to be asked is whether, as applied to plaintiff’s services, the proposed mark is “merely descriptive” or “suggestive.” Ex parte Colvin, Mendelhall & Co. (1953), 98 U.S.P.Q. 415.

In Colvin, the commissioner of patents, in finding that the term “The Technical Trend” was registerable as a service mark for an investment advisory service, concluded the following:

“The applicant does not sell ‘trends.’ The fact that it may study and analyze certain trends in rendering its services, and the further fact that such trends may form the basis of specific recommendations to its clients with respect to investment policy or timing, do not *** lead to a conclusion that the word ‘trend’ is descriptive or generic when applied to the services of the applicant. This combination of a descriptive word with a generic word has no meaning which would in any way suggest an investment advisory service ***.
In determining the question of whether or not a given mark is merely descriptive, one is not required to go through mental gymnastics.” Ex parte Colvin, Mendelhall & Co. (1953), 98 U.S.P.Q. 415, 416.

This analysis applies with equal force to the words “Spring Green.” The term itself, though composed in part of a descriptive word, is not descriptive of the plaintiff’s service and requires some operation of imagination to connect it with the service. To reach the trial court’s conclusion, that the term is descriptive because it communicates the “qualities and objectives” of lawn care, requires an exercise in mental gymnastics. The trial court’s strained reasoning is further evidenced by its reliance on the observation that “Spring Green” “indicates a time of year associated with the care of lawns” to support its finding of descriptiveness.

In light of the foregoing analysis, we must necessarily conclude that defendant failed to carry his burden of proving the service mark invalid and, consequently, that the trial court’s finding the mark to be descriptive rather than suggestive is clearly erroneous. Our determination that the mark is suggestive precludes the necessity of finding of secondary meaning. Miller Brewing Co. v. G. Heileman Brewing Co. (7th Cir. 1977), 561 F.2d 75, cert. denied (1978), 434 U.S. 1025, 54 L. Ed. 2d 772, 98 S. Ct. 751.

The exclusive right to use a suggestive term in connection with a service vests in that individual who first used the term in a particular market. (Walt-West Enterprises, Inc. v. Gannett Co. (7th Cir. 1982), 695 F.2d 1050.) The transfer of the property and effect of a business carries with it the exclusive right to use such trademarks or trade names as have been used in such business. (Allegretti v. Allegretti Chocolate Cream Co. (1898), 177 Ill. 129, 52 N.E. 487.) Ownership of a service mark is acquired by adoption and prior and continuous use of the mark in an individual’s business. (El Sombrero Corp. v. Bolivar (1982), 106 Ill. App. 3d 925, 436 N.E.2d 733.) State registration of a service mark does not create rights which would not otherwise exist; no substantive rights are established by registration. Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App. 3d 338, 290 N.E.2d 701.

Under the present facts, it is plaintiff and not defendant who is entitled to trademark protection, regardless of the fact that defendant registered first. Robert Gora began the business under the name Spring Green Landscaping in 1967, and it is this date that is noted on plaintiff’s certificate of registration as the time at which the service mark was first used in Illinois. When plaintiff purchased the business from Gora in 1974, he purchased the good will of the business and the use of the business’ name which he continued to use, continuously used, and continues to use. Defendant did not incorporate his business until 1977, at which time he registered and began using the service mark “Spring-Green.” Under the applicable law of trademarks, it is therefore plaintiff who is entitled to protection if the evidence indicates a likelihood of confusion on the part of the consuming public due to defendant’s use of a similar mark.

The test of trademark infringement under the Lanham TradeMark Act (15 U.S.C. sec. 1114(1)(1982)) and in Illinois is likelihood of confusion. (James Burrough Ltd. v. Sign of the Beefeater, Inc. (7th Cir. 1976), 540 F.2d 266.) Infringement is found when the evidence indicates a likelihood of confusion, deception or mistake on the part of the consuming public, namely, ordinary purchasers purchasing in the ordinary manner. (Ye Olde Tavern Cheese Products, Inc. v. Planters Peanuts Division, Standard Brands, Inc. (N.D. Ill. 1966), 261 F. Supp. 200, aff’d (7th Cir. 1967), 394 F.2d 833.) The test is the consumer’s state of mind when faced with the marks individually. (Union Carbide Corp. v. Ever-Ready Inc. (7th Cir. 1976), 531 F.2d 366, cert. denied (1976), 429 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91.) Confusion will be found where one adopts a trademark or trade name so like another in form, spelling, or sound that one with a not very definite or clear recollection as to the real mark is likely to become confused or misled. (Spangler Candy Co. v. Crystal Pure Candy Co. (7th Cir. 1965), 353 F.2d 641.) It is incumbent upon the latecomer to avoid such confusion. Union Carbide Corp. v. Ever-Ready Inc. (7th Cir. 1976), 531 F.2d 366, cert. denied (1976), 429 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91.

Generally, likelihood of confusion is a question of fact subject, on review, to the clearly erroneous standard. (Union Carbide Corp. v. Ever-Ready Inc. (7th Cir. 1976), 531 F.2d 366, cert. denied (1976), 421 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91.) However, in cases such as the instant case, where the determination is to some extent predicated upon the similarity of the marks themselves, it is a mixed question of law and fact, and a court of review is in as good a position as the trial judge to determine the probability of confusion. (531 F.2d 366.) Even in the absence of evidence showing actual confusion, the court can visualize the likelihood of consumer confusion wholly from the similarity of the marks. Ye Olde Tavern Cheese Products, Inc. v. Planters Peanuts Division, Standard Brands, Inc. (N.D. Ill. 1966), 261 F. Supp. 200, aff’d (7th Cir. 1967), 394 F.2d 833.

There is no ineluctable test of likelihood of confusion (Baker’s Associates, Inc. v. Kellog Co. (N.D. Ill. 1969), 296 F. Supp. 772), and no one factor is per se determinative in a trademark infringement action. (James Burrough Ltd. v. Sign of The Beefeater, Inc. (7th Cir. 1976), 540 F.2d 266.) In determining whether likelihood of confusion exists, courts typically consider such factors as the degree of similarity between the marks in appearance and suggestion; the similarity of the products for which the name is used; the area and manner of current use; the degree of care likely to be exercised by customers; the strength of the complainant’s mark; actual confusion; and an intent on the part of the infringer to palm off his products as those of the complainant. (NFE International, Ltd. v. General Resource Corp. (N.D. Ill. 1983), 558 F. Supp. 1137.) Similarity in the sound of trademarks or service marks enters into a consideration of likelihood of confusion. Evidence of actual confusion, though not required, is entitied to substantial weight. 558 F. Supp. 1137.

In Illinois, a latecomer, regardless of fraudulent intent or actual injury, owes a duty to take affirmative precautions sufficient to make confusion in the use of similar service marks improbable. (Jewel Tea Co. v. Kraus (7th Cir. 1950), 187 F.2d 278.) Taking into consideration these pertinent factors in our determination of likelihood of confusion, we find that defendant has breached his duty to avoid confusion on the part of the consuming public.

Here, the salient words in plaintiff’s and defendant’s marks are identical. (Independent Nail & Packing Co. v. Stronghold Screw Products, Inc. (7th Cir. 1953), 205 F.2d 921.) The addition or deletion of a hyphen is insufficient to distinguish the marks. (Union Carbide Corp. v. Ever-Ready Inc. (7th cir. 1976), 531 F.2d 366, cert. denied (1976), 429 U.S. 830, 50 L. Ed. 2d 94, 97 S. Ct. 91.) Whatever it is that “Spring Green” suggests, cannot differ from that suggested by "Spring-Green.” And, while the parties and the trial court have spent much time and effort attempting to determine whether or not one party fertilizes and mows as opposed to sprays and cuts, the basic service supplied by both parties is that of lawn care and maintenance. Drawing fine distinctions within this general area misses the point of the inquiry. The persons to be considered in determining whether confusion is likely include the ignorant and inexperienced as well as those with some greater knowledge of lawn care. (St. Charles Manufacturing Co. v. St. Charles Furniture Corp. (N.D. Ill. 1979), 482 F. Supp. 397.) It cannot reasonably be contested that the viewer of defendant’s mark “Spring-Green” would be likely to associate the lawn care service with which it is connected with the source of the lawn care service with which “Spring Green,” plaintiff’s mark, is connected. (James Burrough Ltd. v. Sign of The Beefeater, Inc. (7th Cir. 1976), 540 F.2d 266.) Similarly, the evidence demonstrates that both parties have, over the years, been listed side by side in the white and yellow pages of the telephone directories, thereby demonstrating similarity of service offered as well as similarity of geographical area to which the service is offered.

The trial court discounted the evidence presented by plaintiff as to actual confusion and noted that plaintiff had presented no evidence of actual damage. Plaintiff introduced four witnesses who testified as to instances of actual confusion, and he himself testified that he had received over 300 telephone calls between 1978 and 1982 from callers who mistakenly took him for defendant. Such evidence is to be afforded substantial weight. Moreover, a showing of economic or actual damage per se is not required; the owner of a mark is damaged by a later use of a similar mark which places the owner’s reputation beyond its control, though no loss in business is shown. (James Burrough Ltd. v. Sign of The Beefeater, Inc. (7th Cir. 1976), 540 F.2d 266.) Damage is presumed upon a finding of likelihood of confusion. 540 F.2d 266.

Finally, as to defendant’s intent, where, as here, the marks are so similar as to almost necessarily lead to complication and confusion in the business of the two parties, it is of no importance that defendant had no knowledge of the existence of plaintiff until after it had organized its lawn care business, or that defendant had no intention of injuring plaintiff. (Koebel v. Chicago Landlords’ Protective Bureau (1904), 210 Ill. 176, 71 N.E. 362.) For plaintiff to prevail in his action for service mark infringement, he must merely establish that the alleged infringer uses a mark likely to cause confusion. We find that plaintiff here has established likelihood of confusion.

Based on our finding that (1) plaintiff’s service mark “Spring Green” is registrable and valid, (2) plaintiff has shown prior and continuous use of this mark, and (3) defendant’s use of the similar mark “Spring-Green” is likely to cause confusion on the part of the consuming public, we find that service mark infringement exists. We therefore reverse the trial court’s order granting defendant’s motion for a directed finding as to counts I (infringement of plaintiff’s state registered mark), II (common law infringement), and VII (infringement under the Lanham Act).

Count III of plaintiff’s complaint alleges dilution of plaintiff’s name under section 15 of the Illinois Trademark Act (the antidilution statute) (Ill. Rev. Stat. 1981, eh. 140, par. 22). The antidilution statute empowers the circuit court to grant injunctive relief to enjoin the use of the same or any similar mark, trade name, label or form of advertisement if there exists either (1) likelihood of injury to business reputation or (2) dilution of the distinctive quality of the mark. The trial court in the instant case found neither of these bases for relief to exist. Our review of the record compels us to agree.

Plaintiff has not shown his mark to be the kind of strong mark which, through much effort or costly and extensive advertising, has acquired a widespread reputation (Polaroid Corp. v. Polaroid, Inc. (7th Cir. 1963), 319 F.2d 830), and the kind of distinctiveness or secondary meaning requisite to support an action for dilution. (Telemed Corp. v. Tel-Med, Inc. (7th Cir. 1978), 588 F.2d 213.) Nor has plaintiff proved how his business reputation, while possibly placed beyond his control, is likely to be injured by the confusing similarity of defendant’s mark with that of his own mark.

Finding that plaintiff has failed to present evidence necessary to prove a claim of dilution, we affirm the directed finding on count III.

Counts IV and V of plaintiff’s complaint allege statutory and common law unfair competition. Unfair competition is a broader concept than trademark infringement and depends upon likelihood of confusion as to the source of plaintiff’s goods when the whole product, rather than just the service mark, is considered. (Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App. 3d 338, 290 N.E. 2d 701.) Under Illinois law, a plaintiff may be granted relief under the theory of unfair competition whether or not his product or service is in direct competition with defendant’s product or service. (National Football League Properties, Inc. v. Consumer Enterprises, Inc. (1975), 26 Ill. App. 3d 814, 327 N.E .2d 242, cert. denied (1975), 423 U.S. 1018, 46 L. Ed. 2d 390, 96 S. Ct. 454.) The same set of facts and circumstances may be used to support a claim for both trademark infringement and unfair competition, and a finding in favor of the former claim typically results in a finding for the latter. James Burrough Ltd. v. Sign of The Beefeater, Inc. (7th Cir. 1976), 540 F.2d 266.

Based on our previous finding of likelihood of confusion and on our consideration of plaintiff’s service as a whole, namely, that of lawn care and maintenance, we find plaintiff has presented enough evidence on his claim of unfair competition to survive a motion for a directed finding. We therefore reverse the trial court’s decision on counts IV and V.

Plaintiff, in count VI of his complaint, requests attorney fees, alleging that defendants have and will continue to knowingly and intentionally “play on the good will associated with plaintiff’s mark.” As defendants correctly point out, attorney fees are not recoverable in Illinois unless provided for by statute. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 343 N.E.2d 479.) Therefore, plaintiff cannot recover attorney fees for his common law claims. In addition, attorney fees are not provided for under the Illinois Trademark Act (Ill. Rev. Stat. 1981, ch. 140, par. 20).

Fees may, however, be recoverable, under section 43(a) of the Lanham Act (15 U.S.C. sec. 1125(a) (1982)), in exceptional cases where defendants have acted in bad faith, vexatiously, wantonly, or for oppressive reasons; and, under the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 1211/2, par. 313), if the court finds that the defendant wilfully engaged in a deceptive trade practice. (Clairol, Inc. v. Andrea Dumon, Inc. (1973), 14 Ill. App. 3d 641, 303 N.E.2d 177, cert. denied (1974), 419 U.S. 873, 42 L. Ed. 2d 112, 95 S. Ct. 134.) At trial, evidence was presented showing that defendant failed to comply with two cease and desist letters sent to him by plaintiffs counsel in April 1978, and that defendant Carroll, the manager of H.R.M., was aware of the existence of Spring Green Landscaping for several years prior to the date on which the first cease and desist letter was received. In addition, when defendant’s patent application was published for opposition in 1978, plaintiff opposed it. We find that these facts adduced at trial amount to “some evidence” of bad faith such as to withstand a motion for a directed finding on the issue of attorney fees. We therefore reverse the trial court’s finding on count VI of plaintiff’s complaint.

In summary, we find that plaintiff has presented some evidence on his claims of service mark infringement (counts I, II and VII), unfair competition (counts IV and V), and attorney fees (count VI) so as to withstand a motion for a directed finding at the close of plaintiff’s case. We therefore find that the trial court’s decision granting defendant’s motion on these counts was against the manifest weight of the evidence, and we reverse and remand on counts I, II, IV, V, VI and VII for a trial on the merits. We affirm the trial court’s decision on count III, finding that plaintiff has failed to make out a prima facie case of service mark dilution.

Reversed in part, affirmed in part, and remanded.

JOHNSON and ROMITI, JJ., concur.


author: JUSTICE KASSERMAN

text:
    FORD MOTOR COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Calvin Walker, Appellant).
    First District (Industrial Commission Division)
    No. 1—84—0424WC
    Opinion filed June 29, 1984.
    George L. Gaines, of Chicago, for appellant.
    Perz & McGuire, of Chicago (Frank M. Perz and Robert A. Soltis, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Calvin Walker, filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for an injury allegedly sustained while in the employ of respondent, Ford Motor Company. An arbitrator awarded petitioner $225.60 per week for 95/v weeks for temporary total disability and $170.75 for medical expenses. The Industrial Commission affirmed the arbitrator’s award and further found that petitioner was entitled to additional compensation as a penalty under section 19(1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(1)). On July 28, 1983, the circuit court of Cook County set aside the decision of the Industrial Commission “as to the findings of fact on the issue of penalties,” and petitioner has perfected this appeal.

On April 26, 1979, petitioner was employed as an assembler by Ford Motor Company when a condenser fell from a ladder and struck him on the back of his head. Petitioner was taken to the hospital and received four stitches in his scalp. Petitioner missed work the following day and returned the next day under a doctor’s restriction stating that petitioner should avoid excessive lifting or bending.

On May 11, 1979, petitioner went on medical leave and filled out a group health insurance claim form stating that he suffered from an acute urinary tract infection and hemorrhagic cystitis. On May 14, 1979, petitioner’s family physician, Dr. D. K. Stankovic, examined petitioner and admitted him to the hospital for treatment of his urinary tract infection and the hemorrhagic cystitis. Dr. Stankovic continued treating petitioner over the next few months. Dr. Stankovic prescribed medication for petitioner’s complaints of headaches and ordered an electroencephalogram (EEG) for petitioner. Petitioner’s EEG was found to be normal, and Dr. Stankovic referred petitioner to Dr. Dragomir Vuckovich, a specialist in neurology and psychiatry, for further treatment.

Dr. Vuckovich treated petitioner for headaches and “tenderness” in the back of petitioner’s head by prescribing Prolixin, a tranquilizer used to relieve chronic pain. Dr. Vuckovich diagnosed petitioner’s condition as post-traumatic neuritis.

The record contains a request for hearing form which was admitted into evidence as arbitrator’s exhibit No. 1. This document indicates that Ford Motor Company disputed petitioner’s claims that his injury was causally connected to petitioner’s condition of ill-being.

On May 11, 1982, the Industrial Commission entered its decision which stated, inter alia, the following:

“The parties stipulated at Arbitration as to Petitioner’s earnings and the periods of total temporary disability and to Respondent’s payment at a rate of $170.47 instead of $225.60. Respondent explained only that the lower payments had been made under its group program; it had presented no evidence or argument disputing the extent or the causal relationship of the temporary disability, and there is nothing in the record to show that the underpayment amounts have ever been paid.”

The Industrial Commission further found that Ford Motor Company failed to provide a reasonable basis for not paying the additional $55.13 per week, that its refusal to pay the proper amount was unreasonable, and that petitioner was entitled to additional compensation in the amount of $2,500 under section 19(1) of the Act. This portion of the decision of the Industrial Commission was set aside by the circuit court of Cook County, and this appeal resulted.

The sole issue before this court is whether the decision of the Industrial Commission to award additional compensation pursuant to section 19(1) of the Workers’ Compensation Act is against the manifest weight of the evidence.

Petitioner contends that the circuit court erred when it set aside the Industrial Commission’s decision to award petitioner additional compensation pursuant to section 19(1) of the Workers’ Compensation Act because of Ford Motor Company’s unreasonable delay in making the full amount of temporary disability payments. In this regard, petitioner maintains that the Industrial Commission’s award of additional compensation for unreasonable delay was not against the manifest weight of the evidence.

Ford Motor Company urges that its actions were justified and that it was reasonable for it to refuse to pay workers’ compensation benefits and instead to make group health insurance payments in the case at bar because the causal connection regarding the disability was in dispute and the medical evidence indicated that some of petitioner’s temporary total disability was for a condition unrelated to petitioner’s injury at work. Ford Motor Company contends that the Industrial Commission’s decision to award petitioner additional compensation was against the manifest weight of the evidence because the record establishes that it made a good-faith challenge to liability. We agree.

Section 19(1) of the Workers’ Compensation Act provides as follows:

“In case the employer or his insurance carrier shall without good and just cause fail, neglect, refuse or unreasonably delay the payment of weekly compensation benefits due to an injured employee during the period of temporary total disability the arbitrator or the Commission shall allow to the employee additional compensation in the sum of $10 per day for each day that a weekly compensation payment has been so withheld or refused, provided that such additional compensation shall not exceed the sum of $2,500. A delay in payment of 14 days or more shall create a rebuttable presumption of unreasonable delay.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(1).)

Penalties under section 19(1) of the Workers’ Compensation Act may not be imposed on an employer if the nonpayment is based on a reasonable and good-faith challenge to liability. (Avon Products, Inc. v. Industrial Com. (1980), 82 Ill. 2d 297, 304, 412 N.E.2d 468, 470.) If an employer acts in reliance upon qualified medical opinion and disputes whether the employment was related to the disability, penalties are not ordinarily imposed. (O’Neal Brothers Construction Co. v. Industrial Com. (1982), 93 Ill. 2d 30, 41, 442 N.E.2d 895, 900.) The test is whether the employer’s conduct in relying on the medical opinion to contest liability is reasonable under all the circumstances presented. Continental Distributing Co. v. Industrial Com. (1983), 98 Ill. 2d 407, 415-16, 456 N.E.2d 847, 851.

We find that Ford Motor Company’s payment of group health insurance and its refusal to pay workers’ compensation benefits was reasonable in the instant case. The medical report of Dr. Stankovic establishes that petitioner was suffering from an acute urinary tract infection and hemorrhagic cystitis; both conditions are obviously unrelated to the fact that petitioner had been struck on the back of the head during his employment. Additionally, the record indicates that Ford Motor Company disputed the causal connection between petitioner’s injury and his employment because it felt that petitioner suffered from a disabling condition which resulted from “an ordinary disease of life.” While we recognize that whether an employer’s conduct justifies the imposition of penalties is a factual question ordinarily for the Industrial Commission (Continental Distributing Co. v. Industrial Com. (1983), 98 Ill. 2d 407, 456 N.E.2d 847; Board of Education v. Industrial Com. (1982), 93 Ill. 2d 20, 25, 442 N.E.2d 883, 885), the instant case, like the cases of Avon Products and O’Neal Brothers Construction Co., is one in which the Industrial Commission’s determination that the delay of benefits was unreasonable is against the manifest weight of the evidence.

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

Affirmed.

SEIDENFELD, P.J., and BARRY, McNAMARA, and WEBBER, JJ., concur.