author: JUSTICE LINDBERG

text:
      In re J.P.J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.P.J., Respondent-Appellant).
    Second District
    No. 83—424
    Opinion filed March 13, 1984.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, J.P.J., a minor, was adjudicated delinquent by the circuit court of Du Page County and committed to the Department of Corrections, Juvenile Division. On appeal, respondent contends that (1) the finding of delinquency and the order of commitment are void because (a) the State failed to make proper inquiry as to the whereabouts of respondent’s father, and (b) the State failed to give proper notice to respondent’s father, and (2) the trial court’s exclusion of evidence relevant to the credibility and weight to be given the respondent’s confession denied respondent a fair adjudicatory hearing.

On February 7, 1983, the respondent was arrested and charged with two counts of theft over $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)) and one count of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3). A delinquency petition was filed on February 14, 1983, which named the minor, J.P.J., and the minor’s parents as respondents. The minor’s address was the same as his mother’s, but the petition listed the address of respondent’s father as “address unavailable.” Summonses were subsequently filed on February 23, 1983. The return indicates that service was effected on the minor and his mother, but not on respondent’s father. The record indicates that the minor, his mother, and his appointed counsel were present at all of the proceedings. The record does not disclose further attempts to notify respondent’s father either by personal service, certified mail or notification by publication prior to the adjudicatory hearing.

Prior to the commencement of the adjudicatory hearing, the defense filed a motion to suppress respondent’s statements to police alleging, inter alia, that respondent’s confession was not voluntarily given because of alleged promises of leniency by police in exchange for respondent’s confession. After a hearing, the motion was denied.

The State’s evidence tended to establish that on February 7, 1983, at about 1 p.m., the residence of Barbara Mucho, located in Elmhurst, was burglarized. Officer Gary Fuller, a detective with the Elmhurst police department stated he questioned the minor the next day at the police station about the burglaries at the Mucho home and at another home. The minor denied any involvement in the burglaries. However, when confronted with the statement of one of the minor’s acquaintances, the respondent told Fuller that on February 7 he and Mitch Cunningham went to see a person the minor knew as “Choke.” The minor and Cunningham went to what they thought was Choke’s home and were told by someone there that he had moved. The minor then took a key from the drawer on the back porch. The two went to Jim McManus’ house. Around 1 p.m. that afternoon, the minor said he and McManus and Cunningham went back to “Choke’s house.” The minor gave McManus the key and he unlocked the door and went in for the purpose of getting some beer. When McManus came out he was carrying a .25-caliber gun, a gold watch and chain, and a case of beer. McManus kept these items and the three went to the park where they drank the beer. On cross-examination, respondent’s counsel attempted to ask Fuller if he had made any offer of leniency in exchange for respondent’s statement. The prosecutor objected on the basis that this matter had already been litigated at the suppression hearing. The objection was sustained. McManus next testified for the State that it was the minor who entered the residence and took the items in question. The respondent did not testify at trial. Following the close of all the evidence, the court acquitted the respondent of one count of theft over $300 and found the minor was delinquent on the other charges.

A dispositional hearing was held on May 5, 1983. It was learned from the probation officer’s report, dated May 3, 1983, that the minor’s parents were divorced in July of 1981 and the respondent had been living with his mother and two of his siblings in Elmhurst. The report further disclosed that respondent’s father had been living in Joliet with one of the minor’s siblings and two years earlier had lived in a home in Lovelton, Indiana. Respondent’s father was listed as being employed as a truck driver for the Coleman Movers Company in Summit, Indiana, for the past 3^2 years. The report also indicated that the father last appeared in court with the minor in September of 1981 on a previous petition involving the minor. Further, the report states that no child support had been received in over a year. It should be noted that this report indicates that parts of the report were taken from two earlier dispositional reports dated July 17 and November 25 of 1980, although it does not state which parts of the report were based on these earlier findings. Following the dispositional hearing, the respondent was found to be delinquent and was committed to the Department of Corrections and he appealed.

Father Not Given Notice Of The Proceedings

Respondent first contends that the adjudication of delinquency should be reversed and remanded for a new adjudicatory hearing because respondent’s father was not given proper notice of the proceedings nor did the State make proper inquiry to ascertain the father’s whereabouts. The record establishes that the minor and his mother were personally served notice of the hearing and were present during all of the proceedings, accompanied by counsel. A return of summons lists the respondent’s father as being not served. There is no evidence in the record that notice by certified mail or notice by publication was ever attempted by the State. The father did not appear in any of these proceedings. Respondent essentially argues that as the court lacked in personam jurisdiction to make a finding of delinquency and order commitment where his father was without notice of the proceedings, the court’s judgment is rendered void.

Due process requires notice to the minor and the minor’s parents in a delinquency proceeding. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) A defendant or unnamed party who has not been given adequate notice or an opportunity to otherwise appear but whose rights have been directly adjudicated may directly or collaterally attack the judgment as void for failure to obtain jurisdiction over his person. (In re Vaught (1981), 103 Ill. App. 3d 802, 804, 431 N.E.2d 1231, 1233; Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 397 N.E.2d 183.) However, the failure to join such an indispensable party does not deprive the court of jurisdiction over the parties properly before it. (In re J.W. (1981), 87 Ill. 2d 56, 59; In re Vaught (1981), 103 Ill. App. 3d 802, 804, 431 N.E.2d 1231, 1233.) Where failure to join an indispensable party is raised on appeal, the reviewing court will vacate the judgment and order that the indispensable party be joined on the basis of fairness to the nonjoined party. In re Vaught (1981), 103 Ill. App. 3d 802, 804, 431 N.E.2d 1231, 1233.

The Illinois Supreme Court recently addressed the issue of whether a noncustodial parent was an indispensable party to the delinquency proceeding and whether it was proper to hold an adjudicatory hearing without serving notice on a noncustodial parent. (In re J.W. (1981), 87 Ill. 2d 56.) The minor in J.W. was illegitimate and did not know who his father was. The minor and his mother and appointed counsel were present at all of the delinquency proceedings. The father, who was unknown to the minor, was not given notice either by personal service or by publication. No objection was made before or during the adjudicatory hearing to the lack of service on the father. In addressing the issue of whether it was proper to conduct the hearing without an attempt at notice by publication on the father, the court first noted that the minor had the assistance of his mother and legal counsel and, in the absence of any suggestion that the father’s presence could have aided his defense, the adjudicatory hearing was fair and did not deprive the minor of due process. Also, the adequate notice to the minor and his mother and legal counsel did not deprive the court of in personam jurisdiction over the minor. The failure to publish notice to the noncustodial and absent father, the court concluded, did not deprive the father of due process where he was not an indispensable party to the proceedings. The court first noted that the minor’s commitment did not deprive the father of any substantial rights since the child was not in the father’s custody. Also, the father’s speculative right to be made a party was outweighed by the countervailing interests of the child’s right and the State’s obligation to conduct a speedy adjudicatory hearing. (In re J.W. (1981), 87 Ill. 2d 56, 59-60.) Based on these considerations, the court concluded that it was proper to go forward with the delinquency proceedings in his absence. However, the court recognized the possibility that where a parent has a “more significant relationship” with the minor than presented in J.W., adequate notice may be required. 87 Ill. 2d 56, 60.

Since J.W., the appellate court has held that failure to serve notice of delinquency proceedings on a noncustodial parent did not deprive the trial court of jurisdiction. In re Stokes (1982), 108 Ill. App. 3d 637, 439 N.E.2d 514; In re Vaught (1981), 103 Ill. App. 3d 802, 431 N.E.2d 1231; In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139; People v. Taylor (1983), 113 Ill. App. 3d 467, 447 N.E.2d 519; In re J.A. (1982), 108 Ill. App. 3d 426, 439 N.E.2d 72; In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289; In re S.W.C. (1982), 110 Ill. App. 3d 695, 442 N.E.2d 961; In re D.J.B. (1982), 107 Ill. App. 3d 482, 437 N.E.2d 888.

In In re Vaught (1981), 103 Ill. App. 3d 802, 431 N.E.2d 1231, the father’s identity was known and his whereabouts were indicated as “Bremen Ky.” Relying on J.W., the court held that failure to notify the father did not deprive the court of jurisdiction. Further, the minor’s commitment to the Department of Corrections would be reversed if it were found the father was an indispensable party to the proceeding. As the custodial parent was served and did appear, and since the record was silent as to what interest of the absentee father would be affected by the adjudication, the father was found not to be an indispensable party and the judgment entered in his absence did not require reversal. 103 Ill. App. 3d 802, 804-05, 431 N.E.2d 1231, 1233.

Even the State’s exercise of less than due diligence in attempting to locate a parent’s address does not deprive the court of jurisdiction. (In re L.E.J. (1983), 115 Ill. App. 3d 993, 996, 451 N.E.2d 289, 292; In re S.W.C. (1982), 110 Ill. App. 3d 695, 697, 442 N.E.2d 961, 963; In re D.J.B. (1982), 107 Ill. App. 3d 482, 486, 437 N.E.2d 888, 891.) In In re S.W.C. and in In re D.J.B., the argument was made, similar to that in the present case, that the State’s failure to exercise due diligence in notifying respondent’s parent of the adjudicatory hearing renders the judgment void. In both cases there was some evidence that the minor informed the court of his absentee parent’s address (In re S.W.C.), or that further inquiry would have disclosed the precise address of the absent parent. (In re D.J.B.) The court in both cases upheld the finding of delinquency and reasoned that where the evidence demonstrates a lack of interest on the part of the absent parent, failure to personally serve or notify by certified mail, even if possible, will not require reversal if the custodial parent has been properly notified. As the court noted in S.W.C.:

"Thus, notice to the custodial parent is what is crucial. That is all that is required under section 4 — 4(2)' of the Juvenile Court Act. (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 4(2).) Unless a minor shows some significant relationship with a noncustodial parent that is affected by the adjudication, he cannot stand silent at a hearing where he is represented by counsel and where his custodial parent is present and then later be heard to complain about lack of notice.
The noncustodial parent should be served personally or by mail whenever possible and the court should endeavor to ascertain the full extent of the minor’s relationship with him or her, but failure to do so is not fatal on the facts of this case.” In re S.W.C. (1982), 110 Ill. App. 3d 695, 698-99, 442 N.E.2d 961, 964.

A more extreme example of the State’s failure to give notice to a noncustodial parent was presented in In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289. In In re L.E.J., no attempt was made at notification, publication or service upon any of the named respondents. The petition contained the names and the last known addresses of the minor’s parents and of his legal guardian. The mother appeared at the adjudicatory hearing, and the Department of Children and Family Services, as legal guardian, appeared throughout the proceedings. The court found that the termination of the father’s foster care of the minor 17 months prior to the offense and the belief that the absent father had moved from Illinois to Colorado indicated that he was not an indispensable party to the proceedings and no reversible error occurred. 115 Ill. App. 3d 993, 998, 451 N.E.2d 289, 293.

It appears from the record that , the minor and his mother were personally served with notice of the delinquency proceeding and appeared at trial represented by counsel. The petition listed respondent’s father’s address as being “not available.” The return indicated his father was not served. It was learned at the dispositional hearing that respondent had been in the sole custody of his mother since his parent's divorce in 1981 and that his father last accompanied the minor to court in September of 1981 on a prior delinquency petition. There is no indication in the record that the State attempted service by certified mail or notice by publication. No objection was made at any of the proceedings to the absence of the minor’s father and is raised for the first time on appeal. Respondent argues that the cases cited above are distinguishable because they involve the issue of whether notice by publication was excused in view of section 4 — 4(2) of the Act rather than the more fundamental issue of whether notice of publication is inadequate unless the State has exercised due diligence in finding the parent’s address and personal service or notice by certified mail cannot be attained. We disagree. First of all, the minor’s counsel ignores the supreme court’s discussion of the interplay of in personam jurisdiction and the concept of indispensable parties and reads J.W. too narrowly. J.W. clearly mandates that where a noncustodial parent’s interest will not be significantly affected in a proceedings, notice by publication is sufficient but is not necessary as provided under section 4 — 4(2) of the Act where the custodial parent has been served. This proposition has been relied upon in several districts of the appellate court faced with this issue in finding that failure to give proper notice of a delinquency proceeding to the noncustodial parent, whether it be through personal service, certified mail or published notice, does not deprive the court of jurisdiction over the parties properly before it.

Respondent relies primarily on In re R.P. (1981), 97 Ill. App. 3d 889, 423 N.E.2d 920, as support for the contention that the trial court lacked jurisdiction based on the State’s failure to exercise due diligence in ascertaining the father’s address so service by certified mail could be effected. As In re R.P. predates the supreme court’s decision in J.W. and cites In re J.W. (1980), 89 Ill. App. 3d 150, 412 N.E.2d 9, which was reversed on appeal in J.W., In re R.P. is no longer good authority and appears to have been implicitly overruled by later Third District appellate court cases. (See In re R.S. (1983), 117 Ill. App. 3d 698, 703-04, 453 N.E.2d 139, 143; In re J.A. (1982), 108 Ill. App. 3d 426, 427, 439 N.E.2d 72, 73.) In In re R.S., the court held that notice to the custodial parent obviated the need to serve notice upon the noncustodial parent, even with a known address.

Respondent also relies on In re T.B. (1978), 65 Ill. App. 3d 903, 382 N.E.2d 1292, in which the summons regarding the minor’s adjudicatory hearing was sent via certified mail to the mother’s last known address in Peru, Illinois. It was returned with a postal stamp marked “moved, left no address.” Notice to the mother of the hearing was then published. The record did not indicate whether she appeared at the hearing. At the dispositional hearing, it was learned that the minor’s mother had moved to Arizona. The minor was aware of that fact and had mentioned it to the police before the summons was sent to the Peru address. Also, the father was described as a long-time alcoholic who had little interest in his family. The court held that the State failed to exercise due diligence in locating the mother’s new address. It was suggested that the State could have learned of the mother’s whereabouts through inquiry among the mother’s former neighbors or of the father, if he was available, to locate her. Significantly, the T.B. court did not fault the State’s efforts to notify the father, even though it was not apparent of the record that he received any sort of notice of the proceedings. Therefore, it can be inferred that the court believed that notice to the noncustodial parent was not important. As In re J.W. (1981), 87 Ill. 2d 56, controls the disposition of this issue and the record is silent as to what interests of the father would be affected, respondent’s argument is without merit.

In so holding we are mindful of the caveat in In re L.E.J. (1983), 115 Ill. App. 3d 993, 996, 451 N.E.2d 289, 292, that the bench and bar are reading In re J.W. (1981), 87 Ill. 2d 56, and In re S.W.C. (1982), 110 Ill. App. 3d 695, 442 N.E.2d 961, too expansively. For example, noticeably absent in In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139, and In re J.A. (1982), 108 Ill. App. 3d 426, 439 N.E.2d 72, is any discussion of the absentee parent’s status as an indispensable party to the proceeding. An analysis of the relationship between the minor and the noncustodial parent is essential in determining whether the trial court’s proceeding in the absence of a party whose rights have been adjudicated violates due process. Those cases hold that service on a custodial parent is enough which we believe would only suffice if the noncustodial parent’s interests were not significant and personal service had been effected on the custodial parent pursuant to section 4 — 4(2). Ill. Rev. Stat. 1981, ch. 37, par. 704— 4(2).

The record here indicates that the minor’s parents were divorced in July 1981; apparently the minor’s last contact with his father was in September 1981 or about 17 months prior to the instant adjudication; no child support had been received for a year prior to the dispositional hearing in May 1983 and the record is silent as to the father’s exercise of any rights or opportunities for visitation with the minor. Under these facts we believe the father was not an indispensable party. (See In re J. W. (1981), 87 Ill. 2d 56, and In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289.) The State should be criticized for its failure to comply with the statute in the manner easily accomplished by the probation department for the dispositional hearing. Nonetheless, under the particular facts of this case there were no deficiencies relating to notice such that would render the court’s order voidable. Nor have any due process violations occurred.

Limitation Of Cross-Examination:

Alleged Promises Of Leniency

Respondent’s second contention is that the trial court improperly limited respondent’s counsel’s cross-examination of Officer Fuller regarding evidence which respondent argues affected the credibility and weight of respondent’s confession so as to deny respondent a fair adjudicatory hearing.

It is well established that the defense can present evidence on the credibility and weight to be given a confession even though the trial court has found the confession voluntary and has admitted it into evidence. People v. Cook (1965), 33 Ill. 2d 363, 369-70; People v. Scott (1963), 28 Ill. 2d 131; People v. Schwartz (1954), 3 Ill. 2d 520; People v. Monroe (1981), 95 Ill. App. 3d 807, 814, 420 N.E.2d 544, 549; People v. Fleming (1981), 103 Ill. App. 3d 194, 197, 431 N.E.2d 16, 19.

In the present case, respondent attempted to challenge the confession he made to police by adducing testimony from the interrogating officer about alleged promises of leniency made by police during questioning in exchange for respondent’s confession. Unlike the cases cited above, this point had been one of the bases for respondent’s pretrial challenge of the voluntariness of his confession. Here, the trial judge, as the trier of fact, was made aware at the suppression hearing of the possibility that respondent’s statement may not have been voluntary. While a person can introduce evidence in a bench trial tending to discredit his confession (People v. Schwartz (1954), 3 Ill. 2d 520, 523), in Schwartz the challenge to discredit the defendant’s confession was raised for the first time at trial before the trial judge. The Illinois Supreme Court held that the denial of the defendant’s right to introduce competent and relevant evidence requires the conviction to be set aside and remanded for a new trial. Here, unlike Schwartz, the trial judge, after considering the testimony of the interrogating officer and the minor and the arguments of counsel, found the State’s witnesses to be more credible and concluded there was no psychological coercion or promises of leniency to render respondent’s confession involuntary. Given the fact that the trial court was aware of the testimony having heard it at the earlier suppression hearing, the court acted within its discretion to preclude the introduction of this evidence at the adjudicatory hearing and any error resulting in the restriction of cross-examination was harmless in the absence of any showing that a reasonable doubt exists that respondent was prejudiced by the restriction of cross-examination or that the outcome of the trial would have been different. People v. Langston (1981), 96 Ill. App. 3d 48, 420 N.E.2d 1090.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    BENEDICT GATTORNA, Plaintiff-Appellant, v. AMERICAN STATES INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 83—368
    Opinion filed March 19, 1984.
    Rehearing denied April 18, 1984.

      Gary V. Johnson, of Clancy, McGuirk & Hulee, P.C., of St. Charles, for appellant.
    Jay H. Tressler and Francis A. Spina, both of McKenna, Storer, Rowe White & Farrug, of Wheaton, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Benedict Gattorna, appeals from an order of the circuit court of Kane County which granted summary judgment in favor of defendant, American States Insurance Company, in connection with plaintiff’s suit to recover for hospital, funeral and medical expenses incurred as a result of an automobile accident in which the plaintiff’s daughter suffered fatal injuries. Plaintiff contends that summary judgment was improperly entered, as the settlement of the wrongful death claim growing out of the accident did not prejudice defendant’s subrogation rights. Defendant, in support of the judgment, counters that plaintiff was not in any event personally entitled to receive payment under the policy.

We reverse.

Prior to the automobile accident involved in this case, the defendant issued plaintiff a policy of automobile insurance under which plaintiff was the named insured. A special endorsement to the policy provided that coverage was also extended to the plaintiff’s daughter, Amy Gattorna. On July 26, 1979, a date by which Amy Gattorna had reached the age of majority, she was involved in an automobile accident while a passenger in a vehicle driven by Mary Ellen Weisschnur. Amy Gattorna was seriously injured in the accident and died three days later.

On August 21, 1979, St. Charles National Bank, as administrator of the estate of Amy Gattorna, commenced suit against the drivers of the vehicles involved in the accident to recover damages for wrongful death and personal injuries. On April 11, 1980, the bank, acting as administrator of the estate, entered into a “Covenant Not to Sue” with Mary Ellen Weisschnur whereunder the latter was released from further liability for consideration of $50,000. The parties agree that nothing in the record on appeal indicates that Weisschnur or her insurer were aware of any subrogation interest which the defendant might have concerning the estate at the time the covenant was executed.

The plaintiff thereafter filed a three-count complaint against the defendant. In count I, the plaintiff sought to recover $12,558.71 under the terms of the automobile insurance policy, which amount represented medical and funeral expenses incurred by plaintiff on his daughter’s behalf. Counts II and III sought recovery of punitive damages and attorney fees on account of defendant’s alleged vexatious and unreasonable conduct. The defendant filed an amended answer which raised by way of affirmative defense that the execution of a general release in favor of Mary Ellen Weisschnur had prejudiced the defendant’s subrogation rights, barring the plaintiff from recovering any medical expenses otherwise payable under the terms of the insurance policy. It was on the basis of the plaintiff’s acceptance of payment in consideration of the release, and the alleged attendant prejudice to the defendant’s subrogation rights that the defendant filed its first motion for summary judgment. That motion was denied, and defendant filed a second motion which alleged that, based upon the plaintiff’s answers to interrogatories, substantial portions of the claimed expenses had been paid for by the bank as administrator of Amy Gattorna’s estate and by insurance, so that only $175 of the bills had been paid by plaintiff. The defendant claimed that the “Other Insurance” clause of the policy precluded the plaintiff’s further recovery. The motion additionally repeated the defendant’s argument concerning the impairment of its subrogation rights, and questioned the plaintiff’s right to receive payment under the insurance policy.

The court found that the plaintiff was not entitled to recovery for the amounts claimed “inasmuch as he was not an injured party and further owed no legal duty to pay for the expenses of the injured party ***.” The defendant’s motion for summary judgment was accordingly granted, and this appeal followed.

Two issues are presented: (1) Whether plaintiff, as named insured under the policy, was personally entitled to receive payment for the medical and funeral expenses of his daughter, who had attained majority, and (2) Whether settlement and release of the tort claims arising from the fatal accident operated to prejudice the insurer’s rights of subrogation, barring plaintiff’s recovery.

We begin with a review of the grounds articulated by the trial court for the award of summary judgment: that plaintiff, who was neither the injured party nor who owed a legal duty to pay for the expenses at issue, was not entitled to recover under the policy for his daughter’s medical and funeral expenses. In this regard, the plaintiff asserts a right to recover under the language of his policy and denies the applicability of any of the policy’s limits of liability.

Plaintiff’s claim in this case arises under the basic personal injury protection and excess personal injury protection coverages of his policy. The basic coverage provided payment of medical, hospital and funeral expenses “to or for the benefit of the injured person ***” while excess coverage would make payments “to or for the benefit of the named insured and any relative who sustains bodily injury caused by an accident involving a motor vehicle ***.” Under each coverage, identical definitions were given of the terms “named insured” (the individual named in the declarations including his spouse if a resident of the same household), “relative” (a relative of the named insured: who is a resident of the same household) and “bodily injury” (bodily injury, sickness or disease, including death at any time resulting therefrom). The term “injured person” included under each coverage the named insured or any relative who sustained bodily injury in any motor vehicle accident.

Plaintiff contends that as the purchaser and named insured under the policy, he is entitled to the payments set out under the basic and excess personal injury protection coverages for his daughter’s medical and funeral expenses. He relies upon the provision in the basic coverage that payment will be made “for the benefit of the injured person” and the provision in the excess coverage that payment would be made “to or for the benefit of the named insured and any relative who sustains bodily injury.” Since the expenses at issue were incurred in the medical treatment of the injured party and in paying her funeral expenses, plaintiff concludes that those expenses were made for her benefit and must be reimbursed under the terms of both coverages.

Defendant does not dispute that medical and funeral expenses are reimbursable under the automobile insurance policy. It does, however, contest plaintiff’s entitlement to payment for those expenses. It denies that plaintiff’s status as purchaser or named insured under the policy vested him with any right to payment on the facts of this case. In defendant’s view, any medical and funeral expenses were incurred either by Amy Gattorna or by her estate. In essence, the insurer claims that its duty to pay benefits “for the benefit of” the injured person is the obligation to make payments to a deceased person’s estate or personal representative, not an obligation to reimburse the injured party’s relatives for voluntary payments they may have made on the injured person’s behalf. The defendant claims that a person in the latter category lacks contractual standing to claim reimbursement notwithstanding his status as purchaser or named insured of the policy.

Generally, an accident insurer is liable under a policy only to the person therein designated as beneficiary. (Kitchen v. North American Accident Insurance Co. (1954), 2 Ill. App. 2d 23.) The terms of a policy providing personal injury protection coverage (PIP) may in certain circumstances be affected by representations made by the insurer in promotional materials purporting to describe the available coverage (cf. Foster v. Crum & Forster Insurance Cos. (1976), 36 Ill. App. 3d 595) (two separate renewals of policy containing restrictive language negated contention that promotional material broadened policy’s terms), but no such contention has been advanced in the case at bar. Rather, the controversy here arises because the policy provisions regarding PIP coverage do not explicitly identify the beneficiary in the event that a covered relative of the named insured sustains fatal injuries during the policy term.

In our view, the provision that payment will be made for the benefit of the injured person simply does not equate with language restricting such payments to the injured person’s estate. Moreover, notwithstanding the lack of a legal obligation under the family expense statute (Ill. Rev. Stat. 1981, ch. 40, par. 1015) to pay the expenses of a child who has reached majority, the concept of the named insured’s obligation to pay expenses is not, even by implication, a condition of entitlement to benefits under the policy. Although defendant on appeal claims that the plaintiff has tried to bootstrap himself into the position of one who has incurred expenses for a child who had attained majority, it fails to suggest why the medical and funeral expenses of such a child actually incurred by the parent should be less payable under the terms of the policy than expenses for which a parent is legally liable under the family expense statute. Even in the absence of legal obligation, a parent may well contemplate being asked to undertake responsibility for a child’s emergency expenses and undertake to insure himself against this risk. We believe that a payment made by a parent under such circumstances is one “for the benefit of the injured person.” Further, the “for the benefit of the injured person” language appears to contemplate direct payment by the insurer to providers of services for the injured person. If such amounts are payable under the policy, we can see no reason why a parent who has made initial payment to the provider cannot be paid directly.

A contrary result, under which payment would be made to the estate, would subject the proceeds of the policy to the general claims of the estate’s creditors and in some circumstances might result in there being insufficient money available to cover all losses against which the parent had sought to insure himself. In addition, the parent would be required to expend the necessary time, effort and resources needed to file a claim against the estate. Such measures should be unnecessary to collection of proper benefits under a policy of insurance. At a minimum, we find the policy ambiguous as to the plaintiff’s entitlement to proceeds, warranting resolution of the ambiguity against the insurer. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1.) We, therefore, conclude that the trial court erred in granting the defendant’s renewed motion for summary judgment.

The defendant further maintains that the plaintiff’s recovery is barred in consequence of the settlement arrived at between the administrator of Amy Gattorna’s estate and Mary Ellen Weisschnur. The defendant contends that this release precluded it from proceeding as subrogee to seek recovery from the tortfeasor for any amounts it might pay to Amy Gattorna’s estate. As a result of this violation of the subrogation clause of both basic and excess PIP coverages, the defendant concludes that it was entitled to summary judgment as to the plaintiff’s claim.

The plaintiff counters that no right of the defendant has been prejudiced since the defendant has as yet made no payment under the policy. Asserting that the right of subrogation does not accrue until the insurer actually makes payment (Village of Crainville v. Argonaut Insurance Co. (1980), 81 Ill. 2d 399), the plaintiff asserts that there are no subrogation rights existing in favor of the defendant to be prejudiced by the settlement. Plaintiff also claims that no conduct attributable to him can be held to have prejudiced the defendant’s rights where the settlement was made by the Bank of St. Charles as administrator of the estate. Plaintiff further claims that summary judgment was improper on this issue in the absence of any indication that the tortfeasor or her insurer were aware of the defendant’s subrogation interest prior to the issuance of the release.

We first address the claim that no subrogation rights can exist where no payment has occurred. Both basic and excess coverages provide that in the event of any payment, the insurer is subrogated to the rights of any person to or for whom such payment is made. Further, such person “shall do nothing after loss to prejudice such rights.” This language does not require that a right to subrogation presently exists, and plaintiff’s construction appears to conflict with the language of the subrogation clause that nothing shall be done “after loss” to prejudice the rights of the insurer. We therefore resolve this facet of the plaintiff’s argument against him.

The plaintiff further claims that he may not be charged with having prejudiced the defendant’s subrogation rights inasmuch as the settlement and release were executed by the administrator of his daughter’s estate. The defendant protests the incongruity of any analysis which might allow the plaintiff to recover from it under the policy yet deny it subrogation on account of the administrator’s execution of a release. However, the subrogation clause merely provides that the person “to or for whom” any payment under this coverage is made “shall do nothing after loss to prejudice” the insurer’s subrogation rights. The language of this clause does not make plaintiff’s entitlement to benefits contingent upon the conduct of the deceased’s personal representative, and defendant’s motion for summary judgment did not suggest in any way that the plaintiff was responsible for procuring the release. We therefore conclude that the award of summary judgment in favor of the defendant may not be sustained on the basis of an alleged violation of the policy’s subrogation clause.

It is appropriate in this connection to discuss the case of Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App. 3d 158, relied upon by the plaintiff. In Woodring, the court found that the estate of a minor child was separate from the parents, who were primarily liable for the child’s expenses. Thus, where the parents had paid the expenses, the insurer was not entitled to subrogation against the proceeds of a settlement entered into by the child’s estate. (Cf. Powell v. Inghram (1983), 117 Ill. App. 3d 895 (Woodring distinguishable when child attains majority before completion of medical treatment at which time, as a named insured of policy, child directed insurer to pay medical expenses and agreed to reimburse them from any judgment received).) The question of whether a settlement by one of the entities could ever be attributed to the other was not involved.

Finally, the parties agreed that it is unclear from the record whether the third-party tortfeasor or her insurer were aware of the defendant’s possible subrogation interest at the time of the settlement. In Illinois, the general release of a tortfeasor does not bar a subrogation action against the latter by the victim’s insurer where the tortfeasor or his insurance carrier had knowledge of the insurer-subrogee’s interest prior to the release. (Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210; Country Mutual Insurance Co. v. Transit Casualty Co. (1978), 59 Ill. App. 3d 283.) The defendant takes the view that no fact question can be found in this regard since the record is silent on the question of the tortfeasor’s knowledge. Defendant relies upon Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, but that case involved a situation where matters in the affidavits attached to a defendant’s motion for summary judgment were not countered by the plaintiff. Since the instant defendant did not attach any matters to its motion which bore on the key issue of the tortfeasor’s knowledge, the trial court was not in a position to resolve on summary judgment the question of whether the defendant’s subrogation rights were actually prejudiced by the settlement. Since a question of fact remained on the issue of prejudice to those rights, the award of summary judgment cannot be sustained on the basis of plaintiff’s alleged violation of the subrogation clause. See Marsh v. Prestige Insurance Group (1978), 58 Ill. App. 3d 894.

For the reasons stated, we conclude that the trial court erred in awarding summary judgment in favor of the defendant and, therefore, the judgment of the circuit court of Kane County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PARSONS COMPANY et al., Defendants-Appellees.
    Second District
    No. 83—121
    Opinion filed March 19, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Barbara A. Chasnoff, Assistant Attorney General, of counsel), for the People.
    Lord, Bissell & Brook, of Chicago, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

The State as plaintiff brings this interlocutory appeal, pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), from an order of the trial court granting the motion of defendant, Dickey-Grabler Company (Dickey-Grabler), to quash service of summons on it and to dismiss the complaint against it for want of in personam, jurisdiction.

On appeal, the State contends that, under section 2 — 209 of the Code of Civil Procedure (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2— 209), the Illinois courts have personal jurisdiction over Dickey-Grabler, an out-of-state corporation, in an action for violations of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111½, par. 1001 et seq.), by reason of Dickey-Grabler’s control over its Illinois subsidiary, Parsons Company, which was also made a defendant in this action. The State also maintains that personal jurisdiction exists under the due-process clause because Dickey-Grabler had “minimum contacts” with Illinois. Accordingly, the State asserts that the trial court erred in dismissing plaintiff’s complaint for want of personal jurisdiction over Dickey-Grabler.

On September 1, 1982, the State filed a three-count complaint against Parsons Company (Parsons) and Dickey-Grabler in which it alleged that the defendants had violated (1) sections 12(d) and 21(f)(2) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111½, pars. 1012(d), 1021(f)(2)), and (2) various rules and regulations of the Illinois Pollution Control Board concerning the storage and disposal of hazardous wastes and that the presence of the wastes constituted a public nuisance. In particular, the complaint alleged, among other things, that Dickey-Grabler was the parent corporation of Parsons and that all of the actions cited in the complaint which Parsons conducted were controlled by Dickey-Grabler. The State also filed a motion for a preliminary injunction. Dickey-Grabler was served with the summons and complaint in Ohio.

On August 27, 1982, Parsons filed a voluntary petition for bankruptcy. On September 15, 1982, Dickey-Grabler entered a special and limited appearance for the sole purpose of objecting to the jurisdiction of the court over its person, pursuant to section 2 — 301 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 301). Subsequently, on October 8 of the same year, Dickey-Grabler filed a motion to quash service of summons on it and to dismiss the complaint for want of in personam jurisdiction. An affidavit of James Wilson, executive vice-president of Dickey-Grabler and chairman of the board of Parsons, accompanied the motion.

The record also reflects that the parties took the discovery deposition of Walter Schubert, the immediate past president of Parsons, on September 21, 1982. In addition, on November 1, 1982, James Wilson, on behalf of Dickey-Grabler, answered a set of interrogatories which the State had propounded to the company.

After hearing the arguments of the parties, the trial court granted Dickey-Grabler’s motion to quash the service of summons and to dismiss the complaint for want of personal jurisdiction. On January 24, 1983, the court below made the requisite finding, under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) that there was no just reason for delaying an appeal of its order quashing service of summons and dismissing the complaint. The State filed a timely notice of appeal on February 9, 1983.

The following uncontroverted facts relevant to this appeal emerged from the affidavit of James Wilson, the discovery deposition of Walter Schubert, Dickey-Grabler’s answers to the State’s interrogatories, and, to a much lesser extent, from the parties’ pleadings.

Parsons is an Illinois corporation, located in Belvidere, that has been engaged in the business of electroplating and selling casket hardware. As a result of its business operations over the years, Parsons generated wastes which were stored on its property. On December 28, 1979, Dickey-Grabler acquired a 66.9% interest in Parsons. Early the following year, Dickey-Grabler purchased additional shares of stock in Parsons, bringing Dickey-Grabler’s total ownership interest to 80.5%.

Dickey-Grabler is a small, privately held Ohio corporation whose only plant is located in Cleveland. It is primarily a manufacturer of steel stampings for the automobile industry. The corporation does not own any real estate in Illinois; has no phones or phone listings in Illinois; does not advertise in any Illinois newspaper, magazine, or electronic media; has no offices, business facilities, or registered agent in Illinois; does not employ any sales representatives or other individuals in Illinois; has no bank accounts in Illinois; and, does not pay Illinois taxes.

Prior to the time Dickey-Grabler acquired a controlling interest in Parsons, both companies did electroplating work and manufactured casket hardware. In effect, they were competitors. After securing a majority ownership interest in Parsons, Dickey-Grabler discontinued its own electroplating business and transferred that operation, including its accounts, to Parsons between April and June 1980. The electroplating work had accounted for less than 5% of Dickey-Grabler’s business. In addition to sending electroplating paraphernalia to Parsons, Dickey-Grabler sent to Parsons, during that same time frame, 34 55-gallon metal drums with liners. While all of the barrels may not have contained a solution, the majority of the drums sent to Parsons which contained a solution were filled with usable chemical products. However, seven of the drums contained residual plating sludge, a waste product generated by Dickey-Grabler’s electroplating operation. The wastes were sent to Parsons “for proper disposal.” According to Mr. Schubert’s deposition, if normal practices were followed, and he had no reason to believe that they were not, it was more than likely that the seven drums of sludge were disposed of some time ago. Schubert related that a past president of Parsons had told Parsons’ attorney that he (the past president) processed the sludge and disposed of it by the normal methods. It was Schubert’s understanding that Parsons neither requested nor paid for the items which Dickey-Grabler sent between April and June 1980.

After Dickey-Grabler pm-chased a controlling interest in Parsons, Parsons purchased steel stampings from Dickey-Grabler; DickeyGrabler sold Parsons $90,000 to $100,000 worth of parts per year, for which Parsons paid $25,000. Parsons used the component parts which it purchased from Dickey-Grabler in the assembly of the caskets that Parsons sold. Overall, Parsons annually purchased from 13% to 20% of its total amount of parts from Dickey-Grabler. Parsons purchased parts from Dickey-Grabler in the same manner that it bought them from other vendors, by the use of a purchase order or, alternatively, by telephoning the order and following it up with a purchase order. Parsons mailed the purchase orders to Dickey-Grabler in Cleveland, and Dickey-Grabler mailed invoices back to Parsons. All orders which Parsons sent to Ohio were filled in that State, and the goods were shipped to Parsons by an independent carrier. In addition to the parts it sold Parsons, Dickey-Grabler had sales in 1980, 1981, and 1982 to corporations in Illinois (other than Parsons) that represented approximately 0.01% of Dickey-Grabler’s total annual sales.

Subsequent to Dickey-Grabler’s acquisition of a majority interest in Parsons, James Wilson, the executive vice-president of DickeyGrabler, became chairman of the board of directors of Parsons, while William Primrose III, also an employee of Dickey-Grabler, became treasurer of Parsons. In addition, several employees of Dickey-Grabler either were transferred to Parsons or secured work with Parsons during the time in question. Also, in the middle of 1980 Dickey-Grabler loaned Parsons $100,000; Parsons had made no payments on that loan at the time it filed for bankruptcy but listed the loan as a liability on its financial statement. After Dickey-Grabler owned a controlling interest in Parsons, Parsons began using two banks in Cleveland, Ohio; Dickey-Grabler also had accounts at the same banks.

Walter Schubert and the department heads of Parsons conducted the company’s daily operations and made the day-to-day decisions affecting marketing, policy making, and production scheduling. According to Schubert, Dickey-Grabler did not influence those decisions. When Schubert met with Jim Wilson on a monthly basis to discuss routine business matters involving Parsons, Wilson acted in his capacity as chairman of the board of directors of Parsons. Parsons maintained its own books, prepared its own payroll, and kept its own accounts. However, Parsons sent its monthly financial statements to Ohio for review by Jim Wilson and Bill Primrose. Parsons also paid its own employees and set their salaries and bonuses. Mr. Schubert exercised the authority to hire and discharge employees without prior consultation with Dickey-Grabler. In Schubert’s mind, Dickey-Grabler did not have the authority to direct Parsons’ business methods.

Between April and June 1982, Schubert and Wilson held discussions to determine whether Parsons would file for bankruptcy. They did not discuss specifically the disposal of the wastes which DickeyGrabler had sent Parsons in 1980, and no one at Dickey-Grabler requested records of wastes stored at Parsons. During those discussions, Schubert indicated to Wilson that Parsons would have to dispose properly of the wastes on its property prior to ceasing business operations. However, Parsons had no closure plan for waste disposal. At the request of Primrose, records regarding analytical results of waste treatment samples and records of Environmental Protection Agency transactions concerning permits and waste disposal were sent to Dickey-Grabler at that time.

The State argues that Dickey-Grabler is amenable to suit in Illinois pursuant to sections 2 — 209(a)(1) and 2 — 209(a)(2) of the Code of Civil Procedure, commonly known as the long-arm statute. (Ill. Rev. Stat., 1982 Supp., ch. 110, pars. 2 — 209(a)(1), 2 — 209(a)(2).) The State asserts that Dickey-Grabler transacted business in Illinois within the meaning of section 2 — 209(a)(1) by virtue of its control over Parsons, and the fact that it: (1) sent officers to visit Parsons in order to purchase a controlling interest in the company; (2) made several of its own officers and directors the officers and directors of Parsons; (3) changed Parsons’ banking operations to Dickey-Grabler’s banks in Cleveland; (4) made a loan to Parsons which was not repaid; (5) transferred its electroplating operation to Parsons, including its accounts; (6) sold steel stampings and other component parts to Parsons; and, (7) shipped seven drums containing waste materials to Parsons “for proper disposal.” In addition, the State argues that, due to DickeyGrabler’s control over Parsons, Dickey-Grabler committed a tortious act in Illinois, as that term is used in section 2 — 209(a)(2) of the Code of Civil Procedure (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2— 209(a)(2)), when Parsons failed to dispose of or handle properly the hazardous wastes it had stored in Illinois.

Dickey-Grabler replies that it is not subject to personal jurisdiction in Illinois for two reasons: (1) it did not exert control over Parsons’ business activities in Illinois; and (2) it transacted no business in Illinois that was the subject matter of or gave rise to the instant cause of action.

Initially we emphasize that the State’s allegation of DickeyGrabler’s control over Parsons relates only to the question whether jurisdiction over Dickey-Grabler exists under the Illinois long-arm statute. The State does not contend that Dickey-Grabler is “doing business” in Illinois through its subsidiary, or that Parsons is a constructive agent for Dickey-Grabler for purposes of service of process here. Thus, the cases cited by Dickey-Grabler in this regard are inapposite. See Rymal v. Ulbeco, Inc. (1975), 33 Ill. App. 3d 799, 338 N.E.2d 209; Vischer v. Dow Jones & Co. (1945), 325 Ill. App. 104, 59 N.E.2d 884; Cannon Manufacturing Co. v. Cudahy Packing Co. (1925), 267 U.S. 333, 69 L. Ed. 634, 45 S. Ct. 250; see generally Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 298, 367 N.E.2d 118, aff’d (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert, denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857, for a discussion of the distinction between “doing business” and “transaction of business” under the long-arm statute.

Where a defendant contests personal jurisdiction, the party asserting it (here, the State) has the burden of demonstrating a prima facie case that jurisdiction exists under the long-arm statute. (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209; Bobka v. Cook County Hospital (1983), 117 Ill. App. 3d 359, 360, 453 N.E.2d 828; Johnston v. United Presbyterian Church in the United States of America, Inc. (1981), 103 Ill. App. 3d 869, 873, 431 N.E.2d 1275.) Thus, a plaintiff who seeks to hold a nonresident liable must allege facts in the complaint upon which jurisdiction may be based. Bobka v. Cook County Hospital (1983), 117 Ill. App. 3d 359, 360, 453 N.E.2d 828.

Section 2 — 209 of the Code of Civil Procedure provides in relevant part:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State;
* * *
(c) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section.” (Emphasis added.) Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209.

Our supreme court has stressed that the standard enunciated in the Illinois long-arm statute is not to be equated with the “minimum contacts” test under the due-process clause. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197-98, 429 N.E.2d 847; Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203; Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 555, 447 N.E.2d 919.) That clause “requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; accord, Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 247, 421 N.E.2d 231.) The court in Cook and Green recognized that the Federal due process standard represents only the outer limits beyond which a State may not proceed to acquire jurisdiction over nonresidents and stated that a State may set its own limits within the perimeters established by the due-process clause. (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203.) Accordingly, the court determined that long-arm jurisdiction questions in Illinois should be resolved first by looking to the meaning of the Illinois statute. Only in those instances where the Illinois enactment confers jurisdiction should the court take the second step and assure that the minimum requirements of due process have been satisfied. 86 Ill. 2d 431, 436, 427 N.E.2d 1203; Veeninga v. Alt (1982), 111 Ill. App. 3d 775, 777, 444 N.E.2d 780.

Under section 2 — 209(a)(1) of the Illinois long-arm statute, a single act of a defendant or his agent may be sufficient to find that business was transacted within this State. (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209(a)(1); Johnston v. United Presbyterian Church in the United States of America, Inc. (1981), 103 Ill. App. 3d 869, 874, 431 N.E.2d 1275; Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 247, 421 N.E.2d 231.) However, the cause of action must arise from the transaction of the business that purports to give jurisdiction. International Merchandising Associates, Inc. v. Lighting Systems, Inc. (1978), 64 Ill. App. 3d. 346, 350, 380 N.E.2d 1047.

Relying upon O’Hare International Bank v. Hampton (7th Cir. 1971), 437 F.2d 1173, the State contends that the bare assertion in its complaint that Dickey-Grabler exerted control over Parsons and, hence, transacted business in Illinois under section 2 — 209(a)(1), is sufficient to establish a prima facie case of jurisdiction under that section. (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209(a)(1).) We disagree. The O’Hare decision stands only for the well-established proposition that in determining whether a prima facie case of in personam jurisdiction has been established, a court may receive and weigh affidavits and must resolve any conflicts that exist in the affidavits and pleadings in the plaintiff’s favor. (O’Hare International Bank v. Hampton (7th Cir. 1971), 437 F.2d 1173, 1176; Kutner v. DeMassa (1981) , 96 Ill. App. 3d 243, 247-48, 421 N.E.2d 231.) We note that here the State did not file any affidavits in support of its complaint. The single assertion in the complaint regarding the question of Dickey-Grabler’s control over the actions of Parsons is a mere conclusional allegation which is not admitted as true and which is insufficient by itself, without supporting facts, to constitute a prima facie showing of in personam jurisdiction. Cf. Colnar v. Baldknobbers, Inc. (1982) , 107 Ill. App. 3d 234, 237, 437 N.E.2d 718; see generally Laufenberg v. Golab (1982), 108 Ill. App. 3d 133, 137, 438 N.E.2d 1238.

Further, our review of the facts which were before the trial court on the issue of Dickey-Grabler’s control over Parsons leads us to conclude that the trial court did not err in finding that the two companies were, for the most part, separate legal entities. The record reflects that Parsons maintained its own books, kept its own accounts, and prepared its own payroll. While there are common officers or directors serving both corporations, that fact alone is not sufficient to confer jurisdiction over a nonresident parent corporation. (Graco, Inc. v. Kremlin, Inc. (N.D. Ill. 1982), 558 F. Supp. 188, 191 n.3.) Also, there is no indication in the record that the two corporations held joint directors’ meetings. (See Vitro Electronics v. Milgray Electronics, Inc. (1969), 255 Md. 498, 506, 258 A.2d 749, 753.) In addition, Parsons purchased component parts from Dickey-Grabler in the same manner that it bought them from other vendors, through the use of purchase orders and invoices. Parsons’ president and department heads made all marketing, policy, and production decisions, and the daily internal affairs of Parsons were determined by that company alone, without any control exerted by Dickey-Grabler. There was no indication that Parsons was used as a marketing conduit by Dickey-Grabler. (See United States v. Toyota Motor Corp. (C.D. Cal. 1983), 561 F. Supp. 354, 359; Waters v. Deutz Corp. (Del. Super. 1983), 460 A.2d 1332, 1337-38.) Finally, while there were facts indicating that Dickey-Grabler financed and subsidized Parsons by loaning it $100,000, we do not view this as sufficient to constitute control, especially since Parsons had listed the loan on its books as a liability at the time it declared bankruptcy. Under these circumstances, we find insufficient facts to establish Dickey-Grabler’s “transaction of business” in Illinois on the basis of any alleged pervasive control over Parsons. Accordingly, we agree with the trial court that DickeyGrabler cannot be required to answer for all the acts and omissions of its subsidiary, Parsons.

Nevertheless, we believe the record contains sufficient facts to establish a prima facie case of jurisdiction under the Illinois statute on grounds other than Dickey-Grabler’s control over Parsons. The State has enumerated several acts of Dickey-Grabler, independent of its subsidiary, which it contends constitutes the “transaction of business” within the meaning of section 2 — 209(a)(1) (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209(a)(1)). We perceive only one of these acts, i.e., the shipment of waste from Ohio into Illinois, as being sufficiently connected with the cause of action to be within the purview of section 2 — 209(a)(1) (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2— 209(a)(1)). There is no mechanical test to resolve every question' of jurisdiction; each case must be resolved on its own particular facts and circumstances. (Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 383 N.E.2d 1379.) The determination must be made according to what is fair and reasonable in the situation before the court. (66 Ill. App. 3d 789, 797, 383 N.E.2d 1379.) Relevant considerations are the nature of the business transaction, the applicability of Illinois law, the contemplation of the parties and the likelihood that witnesses would be found here. (66 Ill. App. 3d 789, 797, 383 N.E.2d 1379.) A key inquiry is whether the defendant, through its activity, voluntarily invoked the protection and benefits of the State of Illinois. 66 Ill. App. 3d 789, 797, 383 N.E.2d 1379.

The complaint here alleged that Dickey-Grabler, in its own capacity, shipped and stored at the Parsons’ site approximately 34 drums of wastes from its Ohio plant, some of which contained cyanide. These wastes were shipped “for proper disposal” by Parsons in Illinois. Along with the waste, other items were also shipped to Parsons as part of Dickey-Grabler’s divestiture of its Ohio electroplating operation. Parsons did not request these items, and did not pay for them. There is no indication in the record that Dickey-Grabler paid Parsons for the service of storing and disposing of the waste.

We believe these facts establish a “transaction of business” by Dickey-Grabler in Illinois which is sufficiently connected with the cause of action here to render that company amenable to suit in Illinois under section 2 — 209(a)(1) of the Code of Civil Procedure. (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209(a)(1).) While DickeyGrabler argues that the cause of action is not related to its shipment of wastes but rather to Parsons’ improper storage and/or disposal of it, we view this as too narrow a view of the jurisdictional requirements of section 2 — 209(a)(1) (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 2 — 209(a)(1)). That section is designed to be remedial and liberally construed in favor of the State asserting jurisdiction. (Ward v. Formex, Inc. (1975), 27 Ill. App. 3d 22, 24, 325 N.E.2d 812; Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 799, 383 N.E.2d 1379.) We believe that Dickey-Grabler’s act of shipping wastes into this State for storage and disposal by Parsons, pursuant to Parsons’ Illinois permit to do so demonstrates DickeyGrabler’s purposeful and voluntary invocation of the benefits and protections of this State’s laws, and particularly the Environmental Protection Act. (Ill. Rev. Stat. 1981, ch. 111½, par. 1001 et seq.) The violation of that Act is the subject matter of this lawsuit. Under these circumstances, we find a sufficient nexus between Dickey-Grabler’s shipment of waste for storage and disposal here and the instant cause of action.

Dickey-Grabler also argues that it cannot be held responsible for the acts and/or omissions of Parsons relating to the waste because it had no control over or participation in Parsons’ waste disposal process. While we agree that Dickey-Grabler cannot be held responsible for Parsons’ handling of the wastes generated here, we do not agree that as a matter of law Dickey-Grabler can avoid responsibility for the proper disposal of the waste products which it shipped in from Ohio. The facts here warrant an inference that Dickey-Grabler voluntarily availed itself, through its subsidiary, of the benefits of Illinois law. (See Ronco, Inc. v. Plastics, Inc. (N.D. Ill. 1982), 539 F. Supp. 391; Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 383 N.E.2d 1379.) Parsons did not request the waste, nor did Dickey-Grabler pay Parsons to store and dispose of it. Under these circumstances, we think it is clear that as to any waste sent by Dickey-Grabler, Parsons was acting merely as an instrumentality of Dickey-Grabler , and not as a separate legal entity. A prima facie case of agency is established where the facts show one acting for another under circumstances implying knowledge of such acts by the supposed principal. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill. App. 3d 576, 579, 420 N.E.2d 478; Elmore v. Blume (1975), 31 Ill. App. 3d 643, 647, 334 N.E.2d 431.) We think a prima facie case of agency has been established here. On this basis, we conclude that Dickey-Grabler may be held responsible for the tortious acts and omissions of Parsons relating to the wastes shipped from Ohio into Illinois pursuant to both sections 2 — 209(a)(1) and 2— 209(a)(2) (Ill. Rev. Stat., 1982 Supp., ch. 110, pars. 2 — 209(a)(1), 2— 209(a)(2)).

In this regard, we are compelled to comment upon Walter Schubert’s testimony that he believed Dickey-Grabler’s wastes had already been properly disposed of. We do not consider this bare assertion of belief as conclusively establishing that fact. To the contrary, the State’s complaint asserts, without contradiction, that numerous barrels of Dickey-Grabler’s waste had been discovered on the premises. This is sufficient in our view to establish a prima facie showing that they are indeed involved in the subject matter of this lawsuit. We therefore conclude that the question whether these particular barrels of waste had been properly disposed of prior to the filing of this complaint is a question of fact for the trial court to determine.

Having determined that jurisdiction over Dickey-Grabler exists under the long-arm statute, we must consider whether DickeyGrabler has certain “minimum contacts” with Illinois such that “the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) We find sufficient contacts here. Two corporate officers of Dickey-Grabler made several trips to Illinois to view the site of Parsons’ operation and to converse with representatives of Parsons prior to purchasing a majority interest in Parsons’ stock. In addition, Dickey-Grabler transferred its electroplating operation to Illinois and shipped seven drums of waste into this State. Furthermore, DickeyGrabler sold Parsons $90,000 to $100,000 worth of parts on an annual basis as well as provided its subsidiary with a $100,000 loan. In short, Dickey-Grabler purposefully availed itself of the privilege of conducting activities within Illinois and should reasonably have anticipated or foreseen that any lawsuit against it and its Illinois subsidiary would be filed in Illinois, the situs of Parsons’ operations and the place where the hazardous wastes were transferred and stored. (See WorldWide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 292, 62 L. Ed. 2d 490, 498, 100 S. Ct. 559, 564.) Thus, we conclude that the requisite “minimum contacts” existed here.

Accordingly, the order of the circuit court of Boone County quashing service of summons on Dickey-Grabler and dismissing the complaint against it for want of in personam jurisdiction is reversed and the cause remanded for trial.

Reversed and remanded.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENEE BRENNAN, Defendant-Appellant.
    Third District
    No. 3—83—0526
    Opinion filed March 27, 1984.
    Joseph A. Mueller, of White, Marsh & Mueller, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

In accordance with section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1), the circuit court of La Salle County held a hearing to determine whether the defendant, Renee Brennan, refused to submit to a breathalyzer test. The trial court found the defendant refused to submit to the test. The defendant appeals that finding. We reverse.

The issue on appeal is whether the State proved by a preponderance of the evidence that the defendant refused the breathalyzer test. It is important to note, at the outset, that there is little authority concerning when a refusal may occur and what conduct constitutes a refusal under section 11 — 501.1 of the Illinois Vehicle Code.

Section 11 — 501.1 sets out the procedures which must be followed by law enforcement officers when requesting a driver to submit to an intoxication test. The section also lists the penalties which may be imposed upon a driver for refusing, “upon the request of the officer,” to submit to a test. Logic, as well as the language of section 11 — 501.1, suggests that there cannot be a refusal to take a test unless the driver is asked to take the test. Therefore, we find that a refusal occurs only where, after a clear warning of the ramifications resulting from a refusal (see People v. Malloy (1980), 83 Ill. App. 3d 344), an officer explicitly asks a defendant whether he, or she, will take the test, and the defendant, by word, act or omission, clearly refuses to take the test.

In the instant case, the uncontroverted facts are as follows. The defendant was stopped by Officer Vagasky in the early morning hours of January 15, 1983. Officer Vagasky believed the defendant was intoxicated and asked her to take a breathalyzer test. The defendant agreed and rode with Officer Vagasky to a nearby police station. Once at the station, the defendant received permission to phone home. After the phone call, Officer Vagasky drove the defendant to the county jail in Ottawa, where she remained until a family member transported her home. The breathalyzer test was never administered to the defendant. The next day, the officer submitted an affidavit of the defendant’s refusal to take the test.

At the hearing on the question of refusal, Officer Vagasky testified the defendant refused the test. The defendant, on the other hand, stated that she did not refuse the test. The defendant’s testimony was unequivocal. In addition to the above facts, she related that after arriving at the station, she briefly spoke with her mother on the phone. A policewoman then took the phone in order to give the defendant’s mother directions to the station. At that time, Officer Vagasky said he wouldn’t wait and that her mother should pick her up at the Ottawa County jail. Following the phone call, the defendant did not have any further conversation with Officer Vagasky. She also testified that following the initial roadside request to take the test, no one again asked her to take the test and she never refused to take the test.

The State, based upon the testimony of Officer Vagasky, contends that the defendant attempted to delay the administration of the test and that the defendant conditioned her participation upon the occurrence of certain events, namely an opportunity to speak with her father. The State argues that this “conditional refusal” by the defendant should be construed as a refusal under the Vehicle Code. We need not decide whether a conditional refusal can be a refusal under the Code.

An examination of the record reveals that Officer Vagasky’s testimony concerning the fact of any sort of refusal, conditional or otherwise, was directly contradictory and without credibility. At one point, Officer Vagasky testified that “[the defendant] didn’t know if she should or shouldn’t [take the test] *** she was confused *** After a certain period of time we took it as a refusal ***.” A few moments later, Officer Vagasky then testified, “She said she’s not going to take it.” Yet, later still, the State asked Officer Vagasky, “Did she ever say she wasn’t going to [take the test]?” The officer replied, “Not directly, no.” Yet, again, moments later he testified, “I said, do you want to take the test? She said no ***.” In light of the oscillation in Officer Vagasky’s testimony, we believe he did not have a clear recollection of his conversations with the defendant. At most, we can only infer that he based his conclusion of a refusal upon his silent and subjective interpretation of the defendant’s confusion and request to speak with a family member.

As noted above, the fact of a refusal must be based upon an objective review of the officer’s question and the defendant’s response. In the instant case, the defendant rode with Officer Vagasky to the police station, in the first place, because she agreed to his roadside request that she take the test. We find no credible evidence that, once at the station, the defendant was ever offered the test or asked, for a second time, whether she would take the test. Consequently her statements and conduct at the station cannot be interpreted as a refusal. There cannot be a refusal if there was neither a proper request nor an opportunity to take the test.

Therefore, we hold that the trial court’s finding of a refusal to take the breathalyzer test was against the manifest weight of the evidence. The State did not prove by a preponderance of the evidence that the defendant refused the administration of the test. The trial court is reversed.

Reversed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Plaintiff-Appellee, v. THE COUNTY OF TAZEWELL, Defendant-Appellant.—THE SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Plaintiff-Appellant, v. THE COUNTY OF TAZEWELL, Defendant-Appellee.
    Third District
    Nos. 3—83—0481, 3—83—0584 cons.
    Opinion filed March 27, 1984.
    HEIPLE, J., specially concurring.
    G. Edward Orr, Assistant State’s Attorney, of Pekin, for the County of Tazewell.
    Danny L. Schroeder, Jr., of Bartley, Fraser, Parkhurst & Hession, of Peoria, for the Sisters of the Third Order of St. Francis.
   JUSTICE SCOTT

delivered the opinion of the court:

The above cases were heard separately in the circuit court of Tazewell County but on appeal were consolidated for oral argument and disposition.

In case No. 3 — 83—0481, Jerry Duran, a police officer of the city of East Peoria, responded to a call which concerned a fight. In the course of this call it became necessary for the officer to defend himself from the physical attacks of Ricky McMahon. The officer in defending himself by subduing McMahon used both his sap and a flashlight on the person of his attacker. McMahon was injured and an ambulance transported him to the St. Francis Hospital in Peoria. McMahon was admitted to the hospital in the early morning hours of August 23, 1980. At 9:30 p.m. on the same date he was released from the hospital and admitted to the Tazewell County jail at 11:20 p.m. The defendant was not charged with the commission of any offense until August 26, 1980.

The plaintiff, St. Francis Hospital, submitted a bill to Tazewell County for services rendered to McMahon in the amount of $433.50. The circuit court of Tazewell County entered judgment in this amount for the plaintiff hospital pursuant to its interpretation and reliance on the statutory provisions in section 19 of “An Act to revise the law in relation to jails and jailers” (Ill. Rev. Stat. 1979, ch. 75, par. 19).

In case No. 3 — 83—0584, on June 11, 1980, Roy Watson was shot fleeing from the scene of a suspected burglary by East Peoria policemen. At the request of an East Peoria police officer, Watson was transported to the St. Francis Hospital. Approximately 11 hours after his admission to the hospital the suspect died as the result of gunshot wounds. The plaintiff hospital submitted a bill to Tazewell County for services rendered in the amount of $7,334.76. The circuit court of Tazewell County denied plaintiff’s motion for summary judgment and then granted a cross motion for summary judgment in favor of the defendant county.

Timely appeals ensued from the judgment entered in each case. We further note that in each case the party receiving medical services qualified as a medically injured person and that in neither case did the law enforcement officials have any warrant for the arrest of the individual apprehended.

The issues presented in both cases, while raised in somewhat different language, are nevertheless identical and a disposition of them will serve to determine both appeals.

At the outset it is noted that the defendant hospital cites and relies on statutory provisions and a number of cases to establish that McMahon and Watson were arrested and in custody of law enforcement officials when injured even though no warrants had been issued for their arrest. It is not necessary to address the questions concerning arrest and custody because it is not disputed that both individuals were arrested and in custody almost immediately after they were injured. The crucial questions are, by whom were they arrested and in whose custody were they placed. It is clear that they were not arrested by the county of Tazewell or any agent of the county. It is further clear that McMahon and Watson at the time of their hospitalization were never in the custody of the defendant county. In regard to McMahon, no charges were filed against him until after he was released from the hospital. Several days after his release county charges were filed against him by the defendant county and later still he was indicted. As to Watson, who survived his gunshot wounds for but a brief period of time, no county charges were ever returned against him. There was no privity or relationship between the injured individuals and the county of Tazewell as to the admission of McMahon and Watson into the St. Francis Hospital or between them and the county while they were patients in the hospital.

Even though the county of Tazewell was not privy to the admission and hospitalization of McMahon and Watson, the plaintiff hospital argues that the expense of hospitalization should be borne by the county of Tazewell and in support of this contention relies on the following statutory provision:

“The warden of the jail shall furnish necessary bedding, clothing, fuel and medical aid for all prisoners under his charge, and keep an accurate account of the same.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 75, par. 19.

An examination of the above statutory provision is subject to but one interpretation, to-wit, the legislature has directed that the warden (in the instant cases the county sheriff; see Ill. Rev. Stat. 1981, ch. 75, par. 2) shall provide inter alia medical aid only to those prisoners under his charge. Even though McMahon and Watson were arrested and placed in custody by East Peoria police, such actions did not result actually or constructively that they were under the charge of the sheriff of the county of Tazewell.

The plaintiff in support of its argument to the contrary relies on the case of St. Mary of Nazareth Hospital v. City of Chicago (1975), 29 Ill. App. 3d 511, 331 N.E.2d 142. In the St. Mary case the hospital filed suit against the city of Chicago, county of Cook and the director of the Cook County Department of Public Aid to recover expenses incurred in the treatment of an individual who was shot during an attempted robbery. The factual situation was that on the evening of August 7, 1970, policemen transported a man to the emergency room of the St. Mary of Nazareth Hospital. The individual, who had been shot, remained in the hospital until November 19, 1970. The day following the admission it was determined that the patient should be charged with attempted armed robbery since he had been shot by an intended victim. On this day the victim of the intended armed robbery filed a complaint against the patient.

The reviewing court in the St. Mary case held that Cook County was responsible for the medical expenses incurred by the patient. This conclusion was based upon the court’s interpretation of the statutory provisions in section 19 of “An Act to revise the law in relation to jails and jailers” (Ill. Rev. Stat. 1969, ch. 75, par. 19), which contained the same language relied on by the plaintiff hospital in the instant case. The reviewing court in reaching its conclusion made the following pertinent observations:

“It is clear, therefore, that as of the early morning of August 8, 1970, Frank Koniewicz had been charged with a violation of the Illinois Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 8— 4(a).) After Koniewicz had been charged with a violation of our State criminal law, it was the duty of the sheriff of Cook County to hold Koniewicz until bail was made or if bail was not made to hold him until the time for trial. *** We are, therefore, of the opinion that from August 8, 1970, the date Knoiewicz was charged with a violation of our State criminal law, his custody was the responsibility of the sheriff of Cook County. Although actual custody of Koniewicz was impossible due to the injuries he had sustained, Koniewicz was technically in the custody of the sheriff of Cook County from and after August 8, 1970. ***
*** As we have already indicated, from and after the time Koniewicz was charged with a violation of our State’s criminal law the responsibility for his custody was in the Sheriff of Cook County. *** [F]rom and after the time Frank Koniewicz was charged with attempted armed robbery his custody was the responsibility of the sheriff of Cook County.” (Emphasis added.) St. Mary of Nazareth Hospital v. City of Chicago (1975), 29 Ill. App. 3d 511, 515-16, 331 N.E.2d 142, 146.

The foregoing reasoning is indeed tenuous and difficult to reconcile with section 19 of “An Act to revise the law in relation to jails and jailers (Ill. Rev. Stat. 1981, ch. 75, par. 19). Had the legislature intended that a county should be liable for medical expenses resulting solely from actions committed by municipal police officers, such an intent could have easily been so stated. However, even though we accept the court’s reasoning in the St. Mary case, it does not result in holding the county of Tazewell responsible for the medical expenses incurred in the instant cases. Neither of the patients, McMahon or Watson, were ever charged with the commission of an offense while hospitalized. As we interpret the St. Mary case, the charging of the patient while hospitalized is the catalyst which results in the liability of the county for incurred medical expenses.

For the reasons set forth the judgment of the circuit court in case No. 3 — 83—0481 is reversed and the judgment in case No. 3 — 83— 0584 is affirmed.

Reversed in case No. 3 — 83—0481, affirmed in case No. 3 — 83— 0584.

BARRY, J., concurs.

JUSTICE HEIPLE,

specially concurring:

I concur with the result reached. However, I neither accept nor endorse the reasoning in the case of St. Mary of Nazareth Hospital v. City of Chicago (1975), 29 Ill. App. 3d 511. That opinion flies in the face of the plain language of the statute and, for whatever its significance, common sense. The sheriff, as agent, and the county, as principal, are made responsible by statute for the medical care of prisoners under the charge of the warden of the jail. (Ill. Rev. Stat. 1981, ch. 75, par. 19.) The fact that the prisoner may be charged with an offense does not ipso facto place the prisoner under the charge of the sheriff. Physical charge of the prisoner is required.