author: JUSTICE JONES

text:
    BARBARA E. MURPHY, Plaintiff-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellant.
    Fifth District
    No. 83—74
    Opinion filed December 8, 1983.

      John E. Jacobsen and Carl L. Favreau, both of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellant.
    Donald R. Brandon, of Craig, Brandon and Murphy, of Herrin, for appel-lee.
   JUSTICE JONES

delivered the opinion of the court:

At issue in the instant appeal is whether the plaintiff’s action to compel arbitration of her uninsured motorist claim against the defendant insurance company is governed by the two-year statute of limitations applicable to personal injury actions (Ill. Rev. Stat. 1981, ch. 83, par. 15, now Ill. Rev. Stat. 1981, ch. 110, par. 13 — 202) or by the 10-year statute of limitations applicable to contract actions (Ill. Rev. Stat. 1981, ch. 83, par. 17, now Ill. Rev. Stat. 1981, ch. 110, par. 13— 206). The trial court ruled that the plaintiff’s action was not barred by the two-year statute of limitations for personal injury actions and ordered the defendant to submit the plaintiff’s claim to arbitration as provided by the insurance contract between the parties. We affirm.

On September 10, 1979, the plaintiff, Barbara Murphy, was involved in an automobile accident with Delores Mulkins, who was later certified by the Illinois Department of Transportation as an uninsured motorist. At the time of the accident the plaintiff was covered by a policy of insurance issued by the defendant, United States Fidelity and Guaranty Company. Under the policy the defendant was obligated “to pay all sums which the insured *** shall be legally entitled to recover as damages from [an uninsured motorist] because of bodily injury sustained by the insured ***.” The policy further provided that a determination as to whether the insured was legally entitled to recover such damages and the amount thereof was to be made by agreement between the insured and the company or, if they failed to agree, by arbitration. The policy contained no provision as to when such a demand for arbitration should be made.

The parties were unable to agree regarding the plaintiff’s claim for uninsured motorist benefits, and, on September 23, 1981, the plaintiff made a written demand to the defendant for arbitration of her claim. When the defendant refused to submit to arbitration, the plaintiff, on December 1, 1981, filed a petition to compel arbitration against the defendant in the circuit court of Williamson County. The defendant filed a motion to dismiss the plaintiff’s petition because the petition was filed more than two years after the accident in question. The defendant contended that since it was obligated to pay to its insured only such sums as the insured was legally entitled to recover from the uninsured motorist, and since the plaintiff’s claim against the uninsured motorist was barred by the two-year statute of limitations for personal injury actions, the plaintiff could no longer seek to recover from the defendant under the uninsured motorist provisions of her policy.

The defendant’s motion to dismiss was denied by the trial court, and the cause proceeded to trial. At the close of the plaintiff's case the defendant filed a motion for judgment in its favor in which it again raised the statute of limitations issue. The court denied the motion, ruling that the case was governed by the statute of limitations for contract actions because the plaintiff’s cause of action arose out of the contractual obligation of the defendant insurer to pay damages caused by the negligence of an uninsured motorist. The court entered judgment for the plaintiff, and the defendant has appealed from that judgment.

On appeal the defendant contends that the policy language obligating it to pay those amounts that the plaintiff was “legally entitled to recover” from an uninsured motorist effectively precluded the plaintiff from seeking recovery from the defendant once the two-year period for filing an action against the uninsured motorist had passed. Since, the defendant asserts, the plaintiff’s claim for uninsured motorist benefits under the policy depended upon her ability to recover against the uninsured motorist for injuries sustained in the accident, the instant action by the plaintiff must be governed by the statute of limitations applicable to personal injury actions rather than that applicable to contract actions. The defendant urges that this result is not only mandated by the essential nature of the claim involved but is also consistent with the legislative purpose behind the statute providing for uninsured motorist coverage (Ill. Rev. Stat. 1981, ch. 73, par. 755(a)) and is necessary to protect the subrogation rights of an insurer against an uninsured motorist.

In other jurisdictions where courts have considered the applicable statute of limitations for making a claim based upon uninsured motorist insurance, it has been generally held that such claims are governed by the contract rather than the tort statute of limitations. (See Annot., 28 A.L.R.Sd 580, 584-87 (1969 & Supp. 1983); Widiss, A Guide to Uninsured Motorist Coverage sec. 2.25 (1969 & Supp. 1981); Booth v. Fireman’s Fund Insurance Co. (1968), 253 La. 521, 218 So. 2d 580; Schleif v. Hardware Dealer’s Mutual Fire Insurance Co. (1966), 218 Tenn. 489, 404 S.W.2d 490; DeLuca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76, 215 N.E.2d 482, 268 N.Y.S.2d 289; Lemrick v. Grinnell Mutual Reinsurance Co. (Iowa 1978), 263 N.W.2d 714; Pickering v. American Employers Insurance Co. (1971), 109 R.I. 143, 282 A.2d 584; Franco v. Allstate Insurance Co. (Tex. 1974), 505 S.W.2d 789; North River Insurance Co. v. Kowaleski (1976), 275 Or. 531, 551 P.2d 1286; Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis. 2d 60, 171 N.W.2d 914; contra, Vaughn v. Collum (1976), 236 Ga. 582, 224 S.E.2d 416; Brown v. Lumbermens Mutual Casualty Co. (1974), 285 N.C. 313, 204 S.E.2d 829.) The Illinois appellate court has likewise held that, in the absence of a specific statutory provision regarding the period within which uninsured motorist claims must be brought, the statute of limitations to file contract actions must govern. (Burgo v. Illinois Farmers Insurance Co. (1972), 8 Ill. App. 3d 259, 290 N.E.2d 371; see Hartford Accident & Indemnity Co. v. Holada (1970), 127 Ill. App. 2d 472, 262 N.E.2d 359; Witkowski v. Covenant Security Insurance Co. (1971), 1 Ill. App. 3d 1074, 275 N.E.2d 709.) The defendant contends, however, that these latter cases can be distinguished on their facts from the case at bar (cf. Holada (insured had filed timely suit against uninsured motorist so still an open question as to whether he was “legally entitled” to recover from uninsured motorist); Witkowski (insurer was put on notice that plaintiff demanded arbitration less than month after accident)) and should not control the result here.

Upon consideration of the issue of the applicable statute of limitations in the instant case, we find persuasive the reasoning of the majority view that the phrase “legally entitled to recover,” as used in the policy to denote a condition of the insured’s right to recover from the insurer, was designed to indicate fault and not to bar recovery from the insurer merely because the tort-feasor, in an action against him by the insured, could have asserted a statute of limitations defense. (See DeLuca v. Motor Vehicle Accident Indemnification Corp.; Selected Risks Insurance Co. v. Dierolf (1975), 138 N.J. Super. 287, 350 A.2d 526; Edwards v. State Farm Insurance Co. (Mo. App. 1978), 574 S.W.2d 505.) As such, this language means simply that the insured must be able to establish fault on the part of the uninsured motorist that gives rise to damages and prove the extent of those damages. (Allstate Insurance Co. v. Elkins (1978), 63 Ill. App. 3d 62, 381 N.E.2d 1, affd (1979), 77 Ill. 2d 384, 396 N.E.2d 528; Booth v. Fireman’s Fund Insurance Co.) contra, Brown v. Lumbermens Mutual Casualty Co.) We therefore find no merit in the defendant’s contention that this provision served to incorporate the two-year statute of limitations for tort actions into the parties’ insurance contract.

In dealing with a similar argument that an arbitration demand filed more than two years after the occurrence in question was untimely, the court in Hartford Accident & Indemnity Co. v. Holada stated:

“*** [I]n the nature of a true statute of limitations, such as the one for personal injuries involved in this case, a defense based thereon must be affirmatively raised to be successful, and, if not so raised, the insured could still be ‘legally entitled’ even though his lawsuit were filed after the running of the statute.” (127 Ill. App. 2d 472, 482, 262 N.E.2d 359, 364.)

The court thus indicated that the statute of limitations defense, being personal to the uninsured motorist tortfeasor (see 25 Ill. L. & Prac. Limitations secs. 8, 164 (1956); Conley v. Rust (1973), 12 Ill. App. 3d 26, 297 N.E.2d 397), could be raised only by that party and did not affect the insurer’s obligation under its contract to pay those amounts which the insured would otherwise be legally entitled to recover from the tortfeasor. (See Schulz v. Allstate Insurance Co. (1968), 17 Ohio Misc. 83, 244 N.E.2d 546; Booth v. Fireman’s Fund Insurance Co.) see also Witkowski v. Covenant Security Insurance Co.) Similarly, in the instant case, since the insurer’s obligation derived not from the uninsured motorist but from its insurance contract, the insurer did not stand in the shoes of the uninsured motorist (Allstate Insurance Co. v. Elkins) and could not raise that party’s statute of limitations defense on its own behalf.

We likewise reject the defendant’s contention in the same vein that the plaintiff’s claim against the defendant insurer was essentially an action to recover for personal injuries and thus should be governed by the statute of limitations applicable to such actions. The plaintiff’s action here was based solely upon her contract with the insurer for uninsured motorist coverage for which she paid an additional premium. Absent that contract, the plaintiff woúld have had no claim against the insurer and the defendant would have had no liability to the plaintiff to indemnify her for damages resulting from the tortious actions of the uninsured motorist. (See Selected Risks Insurance Co. v. Dierolf; Schleif v. Hardware Dealer’s Mutual Fire Insurance Co.) The plaintiff’s suit, brought to enforce the terms of a contractual obligation, was thus essentially a contract action to be governed by the statute of limitations for such actions.

If, within the framework of its contractual obligation, the defendant had desired to limit the time for making an arbitration demand to a period of two years after the accident, it could have inserted this condition into the parties’ insurance contract. (See Schulz v. Allstate Insurance Co.) Such a limitation provision has been held to be valid and not against public policy, as it places the accident victim in at least as good a position as he would have been had the tortfeasor obtained the minimum insurance required by the Illinois Safety Responsibility Law (Ill. Rev. Stat. 1981, ch. 951/2, par. 7 — 203). (Coyne v. Country Mutual Insurance Co. (1976), 39 Ill. App. 3d 279, 349 N.E.2d 485.) In the absence of a provision to the contrary, we conclude, as did the court in Hartford Accident & Indemnity Co. v. Holada, that “the [insurer] itself did not wish to be bound by any statute of limitations (other than the 10-year limitation for contract actions) in working out a settlement before proceeding with arbitration.” Hartford Accident & Indemnity Co. v. Holada (1970), 127 Ill. App. 2d 472, 480-81, 262 N.E.2d 359, 363.

The defendant’s further contention that the legislative purpose behind the statute providing for uninsured motorist coverage (Ill. Rev. Stat. 1981, ch. 73, par. 755(a)) requires that the plaintiff have no longer time to bring suit than if the uninsured motorist had been insured is not well taken. While it is established that the purpose of the uninsured motorist statute is to protect the victim of an uninsured motorist at least to the extent that compensation would be available to one injured by a motorist insured within the minimum legal limits (Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 434 N.E.2d 290; Putnam v. New Amsterdam Casualty Co. (1970), 48 III. 2d 71, 269 N.E.2d 97), this rationale has not been extended by the courts of this State to limit an insured’s right to recover from his insurer in the absence of a specific limitation period contained in the policy. (Cf. Coyne v. Country Mutual Insurance Co. (two-year policy limitation period upheld as not in contravention of public policy); Burgo v. Illinois Farmers Insurance Co. (one-year limitation period struck on public policy grounds and 10-year contract statute of limitations held applicable); but cf. Brown v. Lumbermens Mutual Casualty Co. (court held application of tort statute of limitations consistent with objective of placing insured in same position as if other motorist had been insured).) In view of other considerations expressed in this opinion, we decline to hold that the public policy of this State requires that the plaintiff’s claim in the instant case be barred by the two-year tort statute of limitations.

The defendant contends finally that to allow the plaintiff to assert her claim against the defendant for uninsured motorist benefits after the time for filing suit against the uninsured motorist had run would effectively deprive the defendant of its subrogation rights against the uninsured motorist, which would arise upon payment of the plaintiff’s claim. While this argument appears compelling on its face, the loss of the insurer’s subrogation rights in these circumstances must be considered in light of the insurer’s ability to protect its subrogation rights prior to the running of the statute against the uninsured motorist. (See Widiss, A Guide to Uninsured Motorist Coverage sec. 2.23 (1969 & Supp. 1981); Widiss, Perspectives on Uninsured Motorist Coverage, 62 Nw. U. L. Rev. 497, 508-11 (1967).) Under the standard uninsured motorist endorsement of the instant policy, the insured was required to give the defendant insurer written notice of the particulars of her accident “as soon as practicable.” Following such notice, the insurer, under the cooperation provision of the policy, was entitled to require the plaintiff “to take such action as may be necessary or appropriate to preserve [her] right [and the insurer’s right by subrogation] to recover damages from any person *** alleged to be legally responsible for the bodily injury.” Thus, by virtue of this provision, the insurer had the right to compel the plaintiff to such action as would preserve all rights against the uninsured motorist, which included the instituting of a legal action to toll the statute of limitations and preserve the defendant’s subrogation rights. (Widiss, A Guide to Uninsured Motorist Coverage sec. 2.23, at 49 (1969).) As stated by the court in Selected Risks Insurance Co. v. Dierolf (1975), 138 N.J. Super. 287, 296, 350 A.2d 526, 531:

“One of the functions of the notice provision of an insurance policy is to bring to the insurer’s attention the possible existence of subrogated rights. By virtue of the Cooperation provision of the endorsement *** the initial responsibility to act to protect subrogated rights is upon the insurer. To hold otherwise would penalize a claimant for his insurer’s failure to act under its own cooperation provision.” (Emphasis added.)

See also American States Insurance Co. v. Williams (1972), 151 Ind. App. 99, 278 N.E.2d 295; Booth v. Fireman’s Fund Insurance Co.

The defendant in the instant case has made no claim that it failed to receive notice of the plaintiff’s accident in time for it to act to protect its subrogation rights against the uninsured motorist. Thus, any prejudice to the defendant’s rights resulting from the timing of the plaintiff’s arbitration demand has been occasioned by its own neglect and should not dictate the use of the shorter tort statute of limitations. (See La Marsh v. Maryland Casualty Co. (1962), 35 Misc. 2d 641, 231 N.Y.S.2d 121.) Further, while the defendant asserts that the plaintiff’s demand for arbitration should have been filed within the two-year period for tort actions so as to alert the defendant to the necessity of protecting its subrogation rights, this is not the function of an arbitration demand, which is to be resorted to only if the insurer and its insured fail to agree as to fault or damages. (Selected Risks Insurance Co. v. Dierolf.) We therefore find no merit in the defendant’s contention that the plaintiff’s action must be governed by the two-year tort statute of limitations in order to preserve the defendant’s rights against the uninsured motorist.

For the reasons set forth in this opinion, we hereby affirm the trial court’s ruling that the plaintiff’s action to compel arbitration against the defendant is governed by the 10-year statute of limitations applicable to contract actions.

Affirmed.

HARRISON and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    JOHN V. SCATTONE, Plaintiff and Counterdefendant-Appellee, v. ROY EUGENE CLARK, Defendant and Counterplaintiff-Appellant.
    Fifth District
    No. 83—108
    Opinion filed December 23, 1983.

      Paul D. Giamaneo and Mike McHaney, both of Caimaneo & Wexstten, of Mt. Vernon, for appellant.
    Robert H. Rath, of Harrisburg, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

John Scattone, plaintiff, brought suit against Roy Eugene Clark, defendant, in the circuit court of Franklin County. Plaintiff’s complaint alleged that defendant wilfully and intentionally struck plaintiff in the face on June 29, 1980, thereby injuring plaintiff. Defendant filed a counterclaim, alleging that plaintiff intentionally struck and injured him on the date in question. Following a jury trial, the jury returned a verdict in favor of plaintiff on his complaint, and awarded plaintiff $16,149.10 in actual damages, plus $10,000 in punitive damages. The jury also found in favor of plaintiff on defendant’s counterclaim. Following denial of his post-trial motion, defendant perfected this appeal. On appeal, defendant argues (1) that the court committed reversible error in giving Illinois Pattern Jury Instruction (IPI), Civil, No. 5.01 (2d ed. 1971); (2) that the court erred in instructing the jury on the issue of punitive damages, where no evidence as to defendant’s financial condition was presented; and (3) that the cumulative affect of numerous errors operated to deprive defendant of a fair trial. For the reasons which follow, we affirm the judgment of the circuit court.

The incidents giving rise to this lawsuit occurred at a cove on Rend Lake in Franklin County, Illinois, where both plaintiff and defendant were engaged in separate boating and recreational activities. Defendant was relaxing on a houseboat moored near the shoreline, in the vicinity of a large rope tied to a tree near the water’s edge. Plaintiff and several of his companions were grasping the edge of this rope from the shoreline, swinging out over the water, and plunging into the water. Plaintiff and one of his companions decided that a small rope which had been tied to the large rope created a safety hazard. To eliminate this hazard, they obtained a pocketknife and cut the small rope. Subsequently, defendant dove into the water from the houseboat and swam or waded toward the plaintiff, who was standing in the water. What happened next is in dispute. Plaintiff’s many witnesses testified that, after a discussion in which defendant claimed ownership of the rope and accused plaintiff of being a thief, defendant, without provocation, punched plaintiff in the face with great force. According to plaintiff’s witnesses, plaintiff then took a dead, rotten stick from the water and struck defendant, breaking the stick in the process. It was undisputed that plaintiff’s jaw was fractured on both sides, and that defendant was cut and bruised as a result of the altercation. Defendant’s witnesses testified that plaintiff hit defendant with the stick before defendant retaliated, while defendant himself testified that he pushed and kicked at plaintiff to protect himself after being hit with the stick. In rebuttal for plaintiff, two park rangers testified that, when they spoke with defendant shortly after the altercation, defendant told them that three men had tried to drown him, had threatened him with a knife, and that he was afraid that these three men may have had a gun.

On appeal, defendant initially claims that the court erred in giving IPI Civil No. 5.01 (2d ed. 1971), which states:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown.”

In the instant case, defendant did not call as witnesses several of the people who were with him on the houseboat. Nothing appears of record, however, which would suggest that these potential witnesses were not equally available to plaintiff. Indeed, several of the potential witnesses had been deposed by both parties (see Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 493, 342 N.E.2d 144), and others were physically present at the trial. Thus, the giving of the instruction was erroneous. However, plaintiff’s counsel in closing argument only briefly mentioned that “we didn’t get to hear from” the people on defendant’s boat not called as witnesses, and there was never any intimation that defendant’s failure to call these witnesses represented an attempt to conceal the truth from the jury. Under these circumstances, we find the error harmless (see Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 474, 365 N.E.2d 1094), particularly in view of the consistency of the testimony of plaintiff’s many witnesses, and defendant’s inconsistent statement to the park rangers very shortly after the incident.

Defendant next contends that the court erred in instructing the jury on punitive damages, where no evidence as to defendant’s financial worth was presented to the jury. This court, however, has recently held that a plaintiff need not introduce evidence of a defendant’s financial worth in order to obtain an award of punitive damages. (Wilson v. Colston (1983), 120 Ill. App. 3d 150, 153.) We adhere to our decision in Wilson, and find no error here.

Finally, defendant asserts that numerous errors, including those discussed above, cumulatively operated to deny him a fair trial. We find this assertion to be without merit. The court properly allowed plaintiff to delete that paragraph of his complaint pleading his own freedom from wilful and wanton misconduct. (Walker v. Dominick’s Finer Foods, Inc. (1980), 92 Ill. App. 3d 645, 648, 415 N.E.2d 1213.) The jury’s laughter upon defense counsel’s production of a baseball bat as demonstrative evidence does not appear to have been prompted by plaintiff or his counsel, and, in any event, did not operate to deny defendant a fair and impartial trial. Defendant failed to object to those portions of plaintiff’s closing argument of which he now complains, and has waived consideration of any issue relating to the propriety of those remarks. (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 598, 294 N.E.2d 689.) We have examined the record carefully, and find the remaining allegations of defendant to be without merit.

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

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE GOLDBERG

text:
    JOHN D. KINNEY et al., Plaintiffs-Appellants, v. ST. PAUL MERCURY INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 83—0668
    Opinion filed December 12, 1983.

      Freeborn & Peters, of Chicago (Leland W. Hutchinson, Jr., of counsel), for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Norman A. Miller, Timothy J. Reagan, and George D. Gardner, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

John D. Kinney and Teresa B. Kinney (plaintiffs) brought this action against their insurer, St. Paul Mercury Insurance Company (defendant). Plaintiffs'" second amended complaint consists of three counts. Count I seeks compensatory damages of $20,000 based on an alleged breach of contract. Count II seeks $20,000 as compensatory damages and $5,000 as a penalty based on an alleged breach of an implied covenant of duty of good faith and fair dealing. Count III seeks $20,000 in compensatory damages and $50,000 in punitive damages based on alleged fraud.

Defendant moved for judgment on the pleadings, .or alternatively to strike plaintiffs’ second amended complaint. The trial court denied defendant’s motion as to count I. However, the trial court dismissed counts II and III of the second amended complaint with prejudice on the theory that the prayer for relief in count II exceeded the remedies provided in the insurance code. (Ill. Rev. Stat. 1981, ch. 73, par. 767.) Plaintiffs appeal.

A motion to dismiss admits all well-pleaded facts. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976.) However, conclusions and inferences not specifically supported by facts are not so admitted. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426.) In determining the sufficiency of a complaint, this court must strip the complaint of unsupported conclusions and inferences, and then determine whether it alleges sufficient facts to sustain a cause of action. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426.

Basically, plaintiffs’ second amended complaint alleged their home suffered snow damage on January 14, 1979. They were insured by defendant. “Shortly after the damage,” plaintiffs “filed a timely notice” with defendant. On or about July 18, 1979, “following the instructions of defendant,” plaintiffs obtained an estimate of $10,914 for repair of the damage to their home. The estimate was “promptly” communicated to defendant.

Plaintiffs further alleged that in October of 1979, a claim representative and adjuster employed by defendant inspected plaintiffs’ residence, accompanied by plaintiffs’ contractor. Without plaintiffs’ knowledge, the adjuster wrote an estimate for repairs of $3,950.70. At the same time, the adjuster surreptitiously informed plaintiffs’ contractor his actual estimate of repairs was $9,500. The adjuster asked plaintiffs’ contractor whether he could reduce his original estimate. Shortly thereafter, the contractor estimated the repairs would cost $9,468. Defendant refused to accept or reject the new estimate.

Plaintiffs also alleged the written estimate supplied by the adjuster was “fraudulent and totally inadequate *** which was wilfully made unrealistically low as a ploy and negotiating tactic to cause [plaintiffs] to settle their claim” for a figure much lower than that to which plaintiffs were entitled. Finally, on June 6, 1980, defendant offered plaintiffs $5,000 as a final and complete settlement of their claim, an offer which plaintiffs rejected.

Section 155 of the Illinois Insurance Code provides in pertinent part (Ill. Rev. Stat. 1981, ch. 73, par. 767):

“In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $5,000;
(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.”

Our examination of the law of Illinois shows a solid series of five opinions by the Appellate Court of Illinois, all uniform in approving the cause of action predicated upon the above quoted section of the Illinois Insurance Code. These are the pertinent cases:

Hamilton v. Safeway Insurance Co. (1982), 104 Ill. App. 3d 353, 432 N.E.2d 996, appeal denied (1982), 91 Ill. 2d 559.

Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156, appeal denied (1980), 81 Ill. 2d 602.

Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 393 N.E.2d 1171, appeal denied (1979), 79 Ill. 2d 624.

Urfer v. Country Mutual Insurance Co. (1978), 60 Ill. App. 3d 469, 376 N.E.2d 1073, appeal denied (1978), 71 Ill. 2d 616.

Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373, appeal denied (1978), 71 Ill. 2d 602.

We need not quote from any of these cases at length. We should stress, however, the following quotation from Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 69, quoting Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 116:

“We are of the opinion that the legislature has intended to provide a remedy to an insured who encounters unnecessary difficulties with an unreasonable and vexatious insurance company. The insured can maintain an action on the contract for recovery of withheld policy benefits and upon proper finding by the court can be awarded attorney fees in addition to all other costs. Where the legislature has provided a remedy on a subject matter we are not only loath but in addition harbor serious doubts as to the desirability and wisdom of implementing or expanding the legislative remedy by judicial decree. [Citations.].”

In Urfer v. Country Mutual Insurance Co. (1978), 60 Ill. App. 3d 469, 475, Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 70, Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 634, and Hamilton v. Safeway Insurance Co. (1982), 104 Ill. App. 3d 353, 356, the court stated that the above-quoted section of the Illinois Insurance Code preempted the filing of a common law action for the same relief, i.e., for damages and for violations of duties of good faith and fair dealing.

In addition, plaintiffs have framed their prayer for punitive damages upon a theory of alleged fraud. In this regard the instant case is comparable to Hoffman. The Hoffman court expressly stated:

“Further, plaintiff’s Exhibit H indicates that plaintiff returned the $116.37 check to defendant, uncashed. Consequently, no apparent injury resulted from any purported reliance on defendant’s representations, and the dismissal of count III [based on fraud] was proper.” 85 Ill. App. 3d 631, 634.

Similarly in the case at bar, plaintiffs did not accept defendant’s settlement offer. Furthermore, plaintiffs’ pleadings are completely devoid of any allegation of detrimental reliance by plaintiffs on any representation by defendant. (See Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.) Therefore the dismissal of count III sounding in fraud was proper.

In addition, in each and all of these five cases the Supreme Court of Illinois denied leave to appeal. In Urfer, leave to appeal was denied despite a specially concurring opinion and a dissent predicated upon Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540.

However, “such action has no precedential effect and in no way-amounts to a consideration of the merits of the cases. Nor does it indicate approval of the appellate court’s action.” Ralph v. Board of Education (1981), 84 Ill. 2d 436, 442, 420 N.E.2d 147.

We do not find Ledingham applicable to the instant case. The court there made no mention of the pertinent section of the Insurance Code but proceeded entirely upon a common law theory. Ledingham has been criticized in Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 114-15, Urfer v. Country Mutual Insurance Co. (1978), 60 Ill. App. 3d 469, 471, Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 68 (decided by this division of this court), and Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 634. We conclude that the judgment appealed from in the instant case should be affirmed.

I

Plaintiffs argue that Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849, decided after the five appellate court decisions cited above, has effectively overruled them. We disagree. Neither Sawyer nor the appellate court opinion thereon (91 Ill. App. 3d 1134, 415 N.E.2d 565) mentioned the five opinions of the appellate court.

In Sawyer, the supreme court recognized an implied private right of action for violation of the Brokers Licensing Act. (Ill. Rev. Stat. 1977, ch. Ill, par. 5701 et seq.) The court stated “our courts have continually demonstrated a willingness to imply a private remedy where there exists a clear need to effectuate the purpose of an act.” (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 389.) However, the enactment involved in the case at bar differs from and is completely removed from the Brokers Licensing Act.

The Brokers Licensing Act did not expressly deal with or consider allowance of damages for violations of the Act. The legislature anticipated such general actions might well be brought. The fact that the Brokers Act did not expressly create a “private right of action for compensatory damages under any section of the Act [did not indicate] that the General Assembly rejected such a remedy.” (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 391.) In the same act the legislature established “a real estate recovery fund which may be used to compensate aggrieved persons who are otherwise unable to satisfy valid judgments against registered real estate brokers and salesmen.” (89 Ill. 2d 379, 390.) On the contrary, the insurance code provides explicitly for allowance of damages to private individuals resulting from violation of that Code and then places strong and express limitations on the amount of damages which may be recovered.

II

Plaintiffs cite and rely upon Kelly v. Stratton (N.D. Ill. 1982), 552 F. Supp. 641. Kelly was not cited by plaintiffs until their reply brief, contrary to Supreme Court Rule 341(g). (87 Ill. 2d R. 341(g).) Also, plaintiffs did not cite Evaluation Systems, Inc. v. Aetna Life Insurance Co. (N.D. Ill. 1982), 555 F. Supp. 116. This case was filed December 23,1982, and it refers specifically to Kelly.

Evaluation Systems, Inc. does not expressly agree with the previous district court decision in Kelly. The court in Evaluation Systems, Inc., carefully pointed out the weight of authority in Illinois with reference to this section of the insurance code. The court cited Tobolt and Debolt. Also, the court in Evaluation Systems, Inc. struck a request in the pleadings of plaintiff for 25% of its claim for $75,000 and replaced it by the ceiling of $5,000 set by section 155 of the insurance code. (555 F. Supp. 116, 121.) To the same effect, see Abbott Laboratories v. Granite State Insurance Co. (N.D. Ill. 1983), 573 F. Supp.193.

Regarding Kelly, the district court there described the cases decided by the Appellate Court of Illinois as “unpersuasive.” The district court proceeded on the theory that this section of the Code is ambiguous so as to require construction. The court accordingly quoted from the Illinois Insurance Laws Study Commission Final Report to the Governor and 80th General Assembly. The report states as follows:

“Traditionally, punitive damages have been seldom used. However, with its new prevalence as an integral element of litigation the Commission thought that the insurance industry might have taken the opportunity to utilize Senate Bill 517 to establish statutory limits on the amount of punitive damages. This was not done. Perhaps this disinterest reflects the disquietude which the Illinois Supreme Court has had with regard to whether punitive damages may be constitutional ***.” 552 F. Supp. 641, 648.

We cannot agree with the position taken by the district court in Kelly. On the contrary, we find expressly that this section of the Insurance Code is not ambiguous and requires no statutory construction. Apparently the same position is reached by the five cases above cited. None of these cases point out or deal with any ambiguity in the pertinent section of the Code.

However, we need carry the mater no further. Decisions by the Federal courts, other than the United States Supreme Court, as to the law of Illinois are “certainly not binding on State courts.” (People v. Stansberry (1971), 47 Ill. 2d 541, 545, 268 N.E.2d 431, cert, denied (1971), 404 U.S. 873, 30 L. Ed. 2d 116, 92 S. Ct. 121.) We will follow the five previous decisions of this court, as above cited.

The judgment appealed from is accordingly affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J, concur.


author: JUSTICE WHITE

text:
    MARCUS CORPORATION, d/b/a Budgetel Hotels, Plaintiffs-Appellees, v. THE VILLAGE OF SOUTH HOLLAND, Defendant-Appellant.
    First District (3rd Division)
    No. 82—1274
    Opinion filed December 14, 1983.

      Ronald Buikema, Jeffrey Malak, and Mary Mathewson, all of Jacobs, Buikema, Malak, Heaney & Hiskes, Ltd., of South Holland, for appellant.
    Leonard R. Anderson, of Gilley and Walberg, Ltd., of South Holland, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, the village of South Holland, appeals from an order of the circuit court of Cook County declaring an ordinance of the village that established a tax upon the use and privilege of renting a motel or hotel room in the village unconstitutional and enjoining further collection of the tax. Plaintiffs are motel owners doing business in South Holland.

On December 21, 1981, the village of South Holland, acting pursuant to its home rule powers, enacted ordinance No. 81 — 12—21, which added chapter 21 — B to the Code of the Village of South Holland, Illinois. Section 21 — B—3(a) of the added code provisions levies and imposes “upon the use and privilege of renting a motel or hotel room within the Village of South Holland” a tax at the rate of either four percent of the room charge or at the rate of one dollar for each room rented in a 24-hour period, whichever is greater. Section 21 — B—3(b) of the code further provides that “[t]he ultimate incidence of and liability for payment of said tax is to be borne by the person who seeks the privilege of occupying the motel or hotel room.”

Plaintiffs maintain that section 8 — 3—14 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 3—14) and section 1 of the Hotel Operators’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 481b.31 et seq.) supercede and limit the power of South Holland to levy a tax on the use and privilege of renting hotel and motel rooms. The village contends that in enacting this ordinance, it was properly exercising its home rule power under article VII, section 6(a) of the Constitution of Illinois, which inter alia provides: “Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power *** to tax ***.” Home rule powers provisions are to be construed liberally. (Ill. Const. 1970, art. VII, sec. 6(m).) The parties agree that home rule powers include the power to tax the use of motel rooms. They further agree that the General Assembly may limit the power of home rule units to tax. Article VII, section 6(g) provides: “The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State ***.” It is the contention of the village that this is the only provision of the constitution pursuant to which the General Assembly can limit the home rule taxing power, and that the three-fifths vote requirements were not met in passage of the statutes upon which plaintiffs rely as limitations on the taxing power of the village. Plaintiffs argue that the Illinois Constitution contains three provisions authorizing the General Assembly to limit the taxing power of home rule units; they are sections 6(g), 6(h) and 6(i) of article VII. Acts of the General Assembly passed under sections 6(h) and 6(i) do not require the three-fifths vote. We need not rule on the constitutional question posed of whether the home rule taxing power of the village was limited here by an act of the legislature passed by the requisite votes, because before reaching that constitutional question, we find that the statutes relied upon by plaintiffs show on their face that they do not limit the power of South Holland to tax hotel and motel room use.

Legislation enacted by the General Assembly may constitute a limitation on the power of a home rule unit where the legislation specifically limits a concurrent exercise of a power or function by local governments or declares that the State’s exercise of power is exclusive. (See City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 421 N.E.2d 196; Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 324 N.E.2d 453.) In the instant case, we find that neither statute cited by plaintiffs limits the power of South Holland to levy the proposed hotel and motel tax. The Hotel Operators’ Occupation Tax Act states in pertinent part:

“*** the tax herein imposed shall be in addition to all other occupation or privilege taxes imposed by the State of Elinois or by any municipal corporation or political subdivision thereof.” (El. Rev. Stat. 1981, ch. 120, par. 481b.31.)

Nowhere in the above statute is there a specific restriction on the power of home rule units to levy taxes on the privilege of renting a room in either a hotel or motel. Rather, the Hotel Operators’ Occupation Tax Act provides that it shall be “in addition to” other occupation or privilege taxes which municipal corporations would continue to levy. The South Holland Motel and Hotel Room Tax is one such example.

We further hold that the occupation tax authorized by section 8— 3 — 14 of the Elinois Municipal Code (El. Rev. Stat. 1981, ch. 24, par. 8 — 3—14) does not preempt the South Holland tax in question. Section 8 — 3—14 states in pertinent part:

“The corporate authorities of any municipality *** may impose a tax upon all persons engaged in such municipality in the business of renting, leasing or letting rooms in a hotel, as defined in ‘The Hotel Operators’ Occupation Tax Act,’ at a rate not to exceed 5% of the gross rental receipts from such renting, leasing or letting, ***.”

There is no language in section 8 — 3—14 which specifically restricts a home rule unit’s power to levy taxes on either a hotel operator or its customers to the tax authorized by this statute. Rather than a limitation of home rule authority, section 8 — 3—14 is a grant of authority. Under article VII, section 6(e) of the Illinois Constitution, home rule units are denied the right to adopt an occupation tax unless specifically authorized to do so by the General Assembly. Section 8— 3 — 14 grants to certain municipalities the authority to adopt an occupation tax and in no way restricts a home rule unit from levying a tax on the privilege of renting a hotel or motel room.

Plaintiffs also contend that the South Holland Hotel and Motel Room Tax violates the five percent limit imposed by section 8 — 3— 14. However, because the South Holland tax is a privilege tax as opposed to an occupation tax, it is not subject to the restrictions of section 8 — 3—14. While it is true that under the South Holland tax the hotel and motel operators are required to collect and remit the tax to the municipality, we note that this does not convert the tax into an occupation tax. See Kerasotes Rialto Theater Corp. v. City of Peoria (1979), 77 Ill. 2d 491, 397 N.E.2d 790; S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 284 N.E.2d 257; see generally Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227.

We next address the issue of whether the South Holland tax violates the uniformity provision of the Illinois Constitution. First, however, we must determine whether plaintiffs have standing to raise this issue. The village, contending that plaintiffs do not have standing, maintains that the tax is not levied against the hotel and motel owners. Therefore, it is argued the provision of the ordinance that plaintiffs allege violates the uniformity requirements of the Constitution does not affect plaintiffs.

Initially, we note that the village did not raise the issue of standing in the trial court and, therefore, that issue is waived. Assuming arguendo that the issue is not waived, we find that plaintiffs are affected by the cause under consideration and, therefore, have standing to raise the issue of uniformity. See Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 292 N.E.2d 401; S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 284 N.E.2d 257.

Article IX, section 2 of the Illinois Constitution provides:

“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.”

Our supreme court has held that this constitutional provision for uniformity does not call for mathematical equality, and that a practical uniformity, rather than an absolute one, is the test. (Fiorito v. Jones (1971), 48 Ill. 2d 566, 272 N.E.2d 41.) Moreover, “[inequalities that result occasionally and incidentally in the application of a system that is not arbitrary in its classification, and not applied in a hostile and discriminatory manner, are not sufficient to defeat [a] tax.” (Schreiber v. County of Cook (1944), 388 Ill. 297, 58 N.E.2d 40.) Finally, the fact that there is a minimum tax does not destroy uniformity. Grenier & Co. v. Stevenson (1969), 42 Ill. 2d 289, 247 N.E.2d 606.

Here, plaintiffs contend that the South Holland tax violates the uniformity provision because the one dollar minimum would result in differing tax rates, dependent upon the cost of the room. However, this is the same argument presented and rejected in Grenier. Accordingly, we hold that the South Holland tax does not violate the uniformity provision of the Illinois Constitution.

For the aforementioned reasons we hold that the home rule powers of the village of South Holland have not been preempted by the State in taxing the use of motel and hotel rooms, and that ordinance 81 — 12—21 does not violate article IX, section 2 of the Illinois Constitution. Accordingly, the order of the circuit court of Cook County is reversed.

Reversed.

McGILLICUDDY and O’CONNOR, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FIDEL MARTINEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2877
    Opinion filed December 13, 1983.

      Frank Celani, of Lansing, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was charged with having left the scene of a personal injury accident in violation of section 11 — 401(a) of the Illinois Vehicle Code (Vehicle Code), a Class A misdemeanor, and with driving too fast for conditions. (Ill. Rev. Stat. 1981, ch. 9572, pars. 11 — 401(a), (c), 11 — 601(a).) A jury found defendant guilty of the former charge only with a recommendation of leniency, judgment was entered on the verdict, and he was sentenced to conditional discharge of one year.

Defendant raises issues of whether the circuit court erred by: prohibiting him from engaging in certain cross-examination; denying his motions to dismiss, for a mistrial, and in arrest of judgment; and refusing to find the relevant statute unconstitutional.

At the jury trial on September 14, 1982, the State’s first witness, Eric McNeal, age 17, testified that on April 24, 1982, at approximately 10 p.m., he and three friends were riding bicycles southbound on May Street. When they reached 124th Street, defendant’s automobile, traveling east on 124th Street, entered the intersection and struck the right side of McNeal’s bicycle, knocking him off the bicycle and causing him to tumble for a distance of eight feet. He felt “lots of pain” in his knees, shoulder, and right thumb and sustained a cut on the thumb. He tried but was unable to stand. The automobile stopped. Defendant got out and told him he “had no damn business” riding the bicycle on the street. Defendant said nothing further, returned to his car, and drove away. His license number was noted. The police and an ambulance arrived, and McNeal was taken to a hospital.

Cecil Williams and Kelvin McDuffey, two of the three who were riding bicycles with McNeal, essentially corroborated McNeal’s testimony with respect to the collision, the injury, and defendant’s conduct at the scene. They noted the license number, make and color of defendant’s automobile. McDuffey summoned the police to the post-occurrence scene.

Defendant testified that the left side of his automobile collided with McNeal’s bicycle. After defendant stopped his car and got out, McNeal was sitting down, but he helped him up. McNeal told him he was fine. He asked McNeal six or seven times if he wanted to go to the police or have the police called because he noticed McNeal “grabbing his hand like this,” but the boy declined. Defendant returned to his car and drove off. He did not give McNeal his name, address, telephone number or automobile registration information. He did not contact police.

Oscar Gonzalez, a passenger in defendant’s car, corroborated defendant’s version of the incident. Another passenger, Jose Corral, did not testify apparently because he had been deported by the United States government.

The jury’s finding of guilt and sentencing as first noted followed. Defendant’s motions for a new trial, in arrest of judgment and to reduce sentence were denied. This appeal proceeds from the judgment and orders denying defendant’s post-trial motions.

I

Defendant initially argues that the circuit court erred in prohibiting him from cross-examining McNeal as to whether he contemplated filing a civil action against defendant, claiming that such refusal amounted to a denial of defendant’s right to impeach the witness by showing his interest, bias or motive. Cross-examination for such impeachment is a matter of right, subject only to the trial court’s discretion to preclude repetitive or unduly harassing questioning. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422; People v. Phillips (1981), 95 Ill. App. 3d 1013, 1020, 420 N.E.2d 837.) Although the trial court has no discretion to preclude such impeachment entirely, it can, assuming a proper subject matter, control the extent of such cross-examination. People v. Thompson (1979), 75 Ill. App. 3d 901, 903-04.

The actual pendency of civil litigation is relevant as tending to show the bias or interest of a witness, and thus is a proper subject matter of cross-examination. (People v. Rongetti (1928), 331 Ill. 581, 598, 163 N.E. 373; People v. Peltz (1908), 143 Ill. App. 181, 182; see also McCormick, Evidence sec. 40, at 79 (2d ed. 1972); 3A Wigmore, Evidence sec. 949, at 788 (Chadbourn rev. ed. 1970).) The instant case, however, involves potential rather than pending litigation. What action, if any, a witness may or may not choose to file in the future is so indefinite and questionable as to have little probative value. In People v. Bradford (1979), 78 Ill. App. 3d 869, 397 N.E.2d 863, defendant attempted to impeach a witness by asking him whether any civil action was contemplated against the witness or the witness’ employer. The trial court’s barring of such cross-examination was upheld as within the court’s discretion because such testimony would have been speculative and uncertain. (People v. Bradford (1979), 78 Ill. App. 3d 869, 877.) To the same effect are People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568, and People v. Denby (1981), 102 Ill. App. 3d 1141, 430 N.E.2d 507. We find no abuse of discretion in the circuit court’s denial of such cross-examination here.

Assuming, for the sake of argument, that the court could be considered to have erred in refusing to allow defendant’s proposed cross-examination as to such potential litigation, that ruling would not merit reversal unless the court’s abuse of discretion resulted in manifest prejudice to defendant. (People v. Lenard (1979), 79 Ill. App. 3d 1046, 1050, 398 N.E.2d 1054.) Since McNeal’s testimony in the present case was substantially corroborated by two other witnesses, no prejudice could have resulted from the preclusion of testimony which, at most, would have had a limited impeachment effect.

II

Defendant next contends that the circuit court erred in failing to sustain his motion to dismiss because a witness who would have testified favorably to him, Jose Corral, was deported prior to trial. Defendant draws an analogy from this situation to cases holding that where evidence is destroyed or lost while in the control of the State, the prosecution bears a heavy burden to show that such destruction was necessary in order to avoid sanctions such as dismissal. (See People v. Taylor (1977), 54 Ill. App. 3d 454, 458, 369 N.E.2d 573; People v. Dodsworth (1978), 60 Ill. App. 3d 207, 210, 376 N.E.2d 449.) In view of defendant’s concession that the Federal government, not the State, deported the witness, the State maintains that it cannot be sanctioned for withholding evidence never in its possession. (See People v. Spurlark (1979), 74 Ill. App. 3d 43, 57, 392 N.E.2d 214.) Defendant nevertheless contends that the State had an affirmative duty to ensure the continued availability of the witness.

The United States Supreme Court considered constitutional ramifications of the deportation of a defense witness in United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 73 L. Ed. 2d 1193, 102 S. Ct. 3440. The absence of such testimony would warrant sanctions where a defendant makes “*** a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses” and “*** only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.” 458 U.S. 858, 873-74, 73 L. Ed. 2d 1193, 1206-07, 102 S. Ct. 3440, 3449-50.

Applying these principles to the instant facts, defendant’s argument must be rejected. Defendant made no showing as to the substance of the deported witness’ testimony; the circuit court thereby was left to speculate as to whether this testimony would have been material and favorable. Assuming, arguendo, that the witness’ testimony would have been favorable to defendant, as a passenger in defendant’s car his testimony, at best, would have corroborated that already presented by defendant and Gonzalez. Such testimony would have been “merely cumulative” and, under the Valenzuela-Bernal guidelines, insufficient to warrant sanctions. See also United States v. Schaefer (11th Cir. 1983), 709 F.2d 1383,1384-85.

III

Defendant also assigns error to the circuit court’s denial of his motion for a mistrial after the prosecutor, allegedly aware that one passenger had been deported, inquired of two witnesses, McDuffey and Gonzalez, as to the number of occupants in defendant’s auto. Such inquiry, defendant maintains, was an impermissible comment on defendant’s failure to call a witness, citing People v. Better (1979), 74 Ill. 2d 514, 526, 386 N.E.2d 857, for the proposition that it is improper for the State to comment on defendant’s failure to call a non-alibi witness. In Better, the prosecutor had made such remarks in closing argument. Although disapproving of such commentary, the supreme court nevertheless found the remarks harmless under the circumstances of the case.

In the case sub judice, the circuit court sustained defendant’s objection each time the question was asked. Following defendant’s oral motion for mistrial, the court instructed the jury to disregard the question when it was first asked. No similar motion was made as to the second question. Further, the improper comment was not stated directly as in Better, but was merely inferable from the questions. The questions were never answered, since defendant’s objections to them were sustained. Generally, unless a prosecutor's prejudicial remarks constitute a material factor in a conviction or result in substantial prejudice to defendant, they will not warrant reversal. (People v. Panezko (1980), 86 Ill. App. 3d 409, 412, 407 N.E.2d 988.) In view of all the evidence adduced, the “comment” which defendant seeks to have us infer from the prosecutor’s questions was, if at all, only minimally prejudicial. The circuit court correctly denied defendant’s motion for mistrial.

IV

Defendant maintains that the circuit court erred in denying his timely motion in arrest of judgment, filed pursuant to section 116 — 2 of the Code of Criminal Procedure of 1963 (Code of Procedure). (Ill. Rev. Stat. 1981, ch. 38, par. 116 — 2.) In his motion, defendant alleged that the complaint was fatally defective because, although it mentioned “personal injury,” it failed to sufficiently describe the injury sustained. Where the sufficiency of a charge is attacked in a motion in arrest of judgment, the standard for evaluating the charge is whether the elements of the offense are set out in the charge as required by section 111 — 3(a) of the Code of Procedure. (Ill. Rev. Stat. 1981, ch. 38, par. Ill — 3(a); People v. Simmons (1982), 93 Ill. 2d 94, 99, 442 N.E.2d 891; People v. Testa (1983), 114 Ill. App. 3d 695, 698, 449 N.E.2d 164.) The purpose of section 111 — 3 is to ensure that defendant is informed as to the nature of the offense so that he may prepare his defense and protect himself from subsequent prosecution arising from the same conduct. People v. Simmons (1982), 93 Ill. 2d 94, 99-100.

Defendant here was charged by means of a verified uniform traffic ticket complaint which: (1) named the offense as “Leaving scene of accident — Personal Injury”; (2) cited section 11 — 401(a) of the Vehicle Code; (3) stated the time, date, and place of the offense; and (4) named defendant as the offender. Defendant argues on appeal that the failure of the ticket to particularize the nature of the injury impaired his ability to mount an effective defense, since the existence of a personal injury is an essential element of the charged offense, citing People v. Griffin (1967), 36 Ill. 2d 430, 223 N.E.2d 158, and People v. Hayes (1979), 75 Ill. App. 3d 822, 394 N.E.2d 80. In Griffin, the supreme court held that a charge of reckless driving required considerable particularity, since the offense was sufficiently general as to support other actions as well, and that the lack of specificity could lead to double jeopardy problems. (People v. Griffin (1967), 36 Ill. 2d 430, 433-34.) In Hayes, the appellate court applied similar reasoning to reject a complaint couched in the general language of the reckless conduct statute. The court there noted a distinction between statutes proscribing specific behavior and those phrased in more general terms, and required specificity beyond the statutory language only for the latter. People v. Hayes (1979), 75 Ill. App. 3d 822, 824-25; see also People v. Roberts (1983), 113 Ill. App. 3d 1046,1048, 448 N.E.2d 185.

The statute violated in the instant case, section 11 — 401(a) of the Vehicle Code, is neither general, nor proscriptive of disparate actions. The statute imposes certain duties on drivers involved in personal injury accidents, including the duty to comply with section 11— 403 of the Vehicle Code. Section 11 — 403 requires a driver involved in an accident to give the person struck certain personal and vehicular identification and to render reasonable assistance to that person. Section 11 — 401(a) makes no distinction as to the degree or extent of injury necessary to trigger section 11 — 403 duties and does not require that the injury be serious. (People v. Lawrence (1974), 17 Ill. App. 3d 300, 303, 308 N.E.2d 52.) Moreover, a violation of section 11 — 401 requires proof only of the driver’s knowledge that he was involved in an accident, not that he knew that injury or death resulted therefrom. (People v. Nunn (1979), 77 Ill. 2d 243, 252, 396 N.E.2d 27.) In view of the foregoing, the instant complaint adequately apprised defendant of the precise offense with which he was charged in accordance with section 111 — 3(a) of the Code of Procedure.

The sufficiency of charges embodied in a uniform traffic ticket complaint was considered in People v. Tammen (1968), 40 Ill. 2d 76, 237 N.E.2d 517. There, the supreme court observed that, because of space limitations, the nature and elements of a misdemeanor offense are not set forth on a ticket, but that the common practice is to charge the offense by name and citation. The supreme court approved of the information thus provided as generally understood by the person charged, especially since he or she can request a bill of particulars, if necessary, in order to prepare a defense. (People v. Tammen (1968), 40 Ill. 2d 76, 79.) In People v. Domovich (1980), 91 Ill. App. 3d 870, 414 N.E.2d 290, the court addressed the sufficiency of a ticket charging defendant with “Leaving the Scene — Accident—Injury” in violation of section 11 — 401(a) of the Vehicle Code. Although defendant filed a motion in arrest of judgment, the court relied on Tammen to hold that, because defendant failed to file a bill of particulars to protest the sufficiency of the complaint in a pretrial motion, the complaint was sufficient. People v. Domovich (1980), 91 Ill. App. 3d 870, 874.

In the instant case, defendant requested a bill of particulars as part of a motion for discovery filed on May 6, 1982. His counsel conceded at trial that the State orally answered the motion. The prosecutor advised the court, without dispute, that defendant was supplied with police reports and other materials in the State’s possession. In light of People v. Tammen and People v. Domovich, the subject complaint and supplementary information was sufficient to enable defendant to prepare his defense. The circuit court’s denial of defendant’s motion in arrest of judgment was without error.

V

Section 401(a) of the Vehicle Code is claimed by defendant to be unconstitutionally overbroad as applied to him because it requires the driver to provide information in the absence of a request therefor, while not specifying the degree of injury necessary for imposition of the statutory duties. He also asserts that section 11 — 401(a) is vague and unnecessarily sweeps within its proscriptions conduct which is constitutionally protected. Generally, a statute is overbroad if it reasonably can be interpreted to prohibit constitutionally protected activity (Grayned v. City of Rockford (1972), 408 U.S. 104, 114-15, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302), or unreasonably infringes upon constitutionally protected rights within its intended scope of regulation. (People v. Ridens (1974), 59 Ill. 2d 362, 370, 321 N.E.2d 264.) Other than a reference to freedom from “overly extensive governmental regulation” defendant does not suggest which constitutionally protected right of his is particularly offended by the statute.

We fail to see how constitutional “overbreadth” has any application to the instant case. The United States Supreme Court, in Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, suggested that a law is void for overbreadth only if the harmfulness of its chilling effect on first amendment freedoms is greater than the interest furthered by the legislation at issue implying further that even a minimal State interest could justify the law if speech-plus-conduct were involved. (See also Wundsam v. Gilna (1981), 97 Ill. App. 3d 569, 574, 422 N.E.2d 1109, appeal denied (1981), 85 Ill. 2d 576; Note, Overbreadth Review and the Burger Court, 49 N.Y.U. L. Rev. 532 (1974); Comment, Constitutional Law: A New Test for Over-breadth! 13 Washburn L.J. 524 (1974).) No first amendment freedom is impinged upon by any action taken or required to have been taken in the present case.

Defendant’s contention that, because section 11 — 401(a) of the Vehicle Code does not define a “meaningful” degree of injury yet imposes a duty of performance whenever a collision occurs, appears to challenge the statute on vagueness grounds. A statute is void for vagueness when it does not afford a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” (Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99; see People v. Schwartz (1976), 64 Ill. 2d 275, 280, 356 N.E.2d 8.) The language of section 11 — 401(a) does not suffer from such vagueness.

Section 11 — 401(a) has been upheld as a legitimate exercise of the legislature’s police power. (People v. Walker (1974), 18 Ill. App. 3d 351, 356, 309 N.E.2d 716.) Because of the problems and dangers inherent in the operation of automobiles, the legislature may impose reasonable conditions on their use. (People v. Lucus (1968), 41 Ill. 2d 370, 373, 243 N.E.2d 228.) As a consequence, any additional burden necessitated by performance of the statutory duties whenever an accident takes place, regardless of whether any injury is immediately apparent, is justified by the legitimate public policy promoted by the statue. In order to sustain a conviction under section 11 — 401(a) it is not necessary to prove that defendant knew of the existence or extent of any injury; such a prerequisite would defeat the public interest which is served by requiring drivers involved in collisions to stop, provide the specified information and render assistance if necessary. People v. Nunn (1979), 77 Ill. 2d 243, 252.

Even were we to assume that McNeal told defendant he was unhurt, defendant nevertheless should have provided the necessary information as a precautionary measure. Defendant’s car undisputedly collided with a young man on a bicycle and knocked him to the pavement. The victim, as well as two eyewitnesses, testified to the resulting injuries. Defendant, moreover, testified to observing McNeal sitting on the street and having to help him up, and saw McNeal holding his hand in such a way as to prompt defendant to offer several times to take the boy to the police. Defendant thus appears to have been on notice that some sort of injury might have been sustained. In view of this evidence, defendant’s argument that the statute as applied to him is void for vagueness must be rejected.

From the foregoing analysis, no reason appears for disturbing the jury verdict, judgment or sentence entered in this case. Accordingly, we affirm.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.


author: JUSTICE MEJDA

text:
    ELIZABETH CARTER, Plaintiff-Appellant, v. J. ARNOLD MUELLER, a/k/a George Mueller, et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2624
    Opinion filed December 16, 1983.

      Jeffrey L. Taren, of Kinoy, Taren, Geraghty & Potter, of Chicago, for appellant.
    Selwyn Zun, Robert W. Gettleman, and David B. Bayless, all of Chicago (D’Ancona & Pflaum, of counsel), for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff Elizabeth Carter brought suit against defendants for allegedly inducing her to lease an uninhabitable apartment on the basis of various false representations. The four count amended complaint alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.) (count I), common law fraud (count II), breach of implied warranties of habitability and quiet enjoyment (count III), and wilful and wanton misconduct (count IV). Defendants filed a counterclaim seeking damages for unpaid rent and for property damage. After a bench trial, the trial court entered judgment on count III in favor of plaintiff and against defendants in the amount of $500. The court granted judgment in favor of defendants on counts I, II and IV and in favor of the plaintiff on the counterclaim. Plaintiff appeals from that portion of the judgment entered in favor of defendants on counts I, II and IV. Defendants have not appealed from the judgment in favor of plaintiff on the counterclaim.

At trial, plaintiff testified that on March 2, 1981, she discussed renting an apartment with the rental agent, Marianne Naples, at Cambridge Square Apartments. Plaintiff asked whether any two-bedroom units were available. Naples indicated that there were and gave her the key to a two-bedroom model apartment. The model was clean and painted and contained a modern stove and refrigerator. Plaintiff told Naples that she wanted an apartment with a southern exposure. Naples pointed on a map to an apartment facing south and indicated that such an apartment was available. Plaintiff asked to see the apartment but was told that she could not because Naples did not have the key. Plaintiff returned the next day and again was told that she could not see the apartment for the same reason. Plaintiff asked Naples whether the apartment would be thoroughly cleaned and painted and was told that it would be “in perfect condition, just like the model” apartment. Plaintiff gave Naples a check for $100 to hold the apartment and as a partial payment of the security deposit. On March 10, 1981, plaintiff signed a lease and delivered a check for $560 to Naples for the first month’s rent and the balance of the security deposit. At this time plaintiff again asked whether “everything was going to be taken care of in the apartment” and was assured by Naples that it would be. On March 27, 1981, plaintiff talked with defendant Mueller at the apartment building. He told her that everything had been done except the carpet cleaning. He gave her the keys to an apartment which she discovered faced north rather than south. She told Mueller that a mistake had been made and he replied that he had no other apartments available. Plaintiff did not have an opportunity to inspect the apartment until the next day when she moved in.

When she moved in, she discovered that outside the apartment proper, the doorbells, mailbox and security door were all broken. The apartment itself was filthy. The carpet was dirty and smelled terrible and was ripped by the door. Litter was strewn about the apartment and the windows were unwashed. In one bedroom a window was broken. The walls had not been cleaned but instead had been painted over in the spots where they were dirty. There was a big hole in one bedroom door. The oven and refrigerator were not operational. The refrigerator was “filthy with decayed food in it [and] [m]old all over it.” The bathroom had never been cleaned and the toilet would not stop running. There was extremely low water pressure with no hot water. The apartment was infested with cockroaches and silverfish.

Despite these defects, plaintiff moved into the apartment because she had no other place to go. She stayed for three days, during which she was able to obtain a working refrigerator from another apartment. She told defendant Mueller that she wanted her money back because the apartment was neither the one she was promised nor in the condition she was promised. No repairs were made during her stay in the apartment and on March 31,1981, she moved out.

In an offer of proof, plaintiff stated that it cost her $50 to move out of the apartment. The trial court also sustained objections to questions concerning whether plaintiff would have moved into the apartment had she seen its condition, and how she felt when she saw the apartment’s condition.

On cross-examination plaintiff testified that although she had walked through the rooms of the apartment prior to moving in, she had not examined the apartment.

Marianne Naples, the rental agent, testified on behalf of plaintiff. She stated that she was employed by defendant George E Mueller & Sons, Inc., at Cambridge Square Apartments from November of 1980 until July of 1981 as a rental agent. Arnold Mueller instructed her to do certain things when renting apartments to prospective tenants. She was told to show them the model apartment and to say that she did not have the key to the apartment that she was actually leasing. Mueller told her that she could not rent to blacks. The trial court sustained defense objections to questions concerning defendants’ policies for handling complaints from other apartments and pertaining to defendants’ patterns and practices of business. Naples confirmed plaintiff’s testimony concerning the conversations leading to plaintiff’s signing of the lease. She admitted that she had at all times a pass key to the apartment leased to plaintiff. When asked whether she knew whether the apartment would be painted and cleaned to look like the model, the trial court sustained defendants’ objection on the ground that “[s]he can’t possibly tell us what’s going to happen tomorrow morning ***.” Naples was allowed to testify that she knew from personal observation that the apartment’s actual condition did not conform to that of the model.

On cross-examination Naples testified that she had delivered to defendant Mueller the checks which she had received from plaintiff for the apartment.

Michael Murphy testified on plaintiff’s behalf. He stated that he is married to plaintiff’s mother. He assisted plaintiff in moving into Cambridge Square Apartments on March 28, 1981. He corroborated the testimony of plaintiff and Naples concerning the dilapidated condition of the apartment.

Plaintiff thereupon rested her case. Defendants also rested without presenting any testimony. The trial court then found that plaintiff should recover $500 for count III. The court further stated as to the tort counts that “[tjhere was no tort obligation” and that “an obligation of a tenant [is] to see that the apartment is spic and span before she moves in.” The court found against plaintiff on counts I, II and IV, and against defendants on the counterclaim. Plaintiff appeals from that portion of the trial court’s judgment which denied her any relief under counts I, II and IV.

Opinion

The first issue which plaintiff presents for review is whether the trial court’s ruling that plaintiff had failed to prove fraud and deceit is contrary to the manifest weight of the evidence. The supreme court has held that:

“the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as ‘fraud and deceit’ or ‘deceit’) are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. [Citations.] Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely.” (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.)

Each of these elements will be discussed in turn.

Plaintiff’s testimony, as well as that of Naples, was unrebutted and largely unimpeached. Both testified that plaintiff was told that the apartment which she would lease would be in the same condition as the model apartment. The evidence adequately established that this statement was false and material to plaintiff’s decision. Thus, the first element of the cause of action was satisfied. The second element is satisfied by Naples’ testimony that she knew that the apartment did not conform to the model. The third element, intent, may be satisfied by proof that defendants knowingly made a false statement to another who relies thereon and a plaintiff need not prove an express fraudulent intent. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 491, 429 N.E.2d 1267.) Thus, Mueller’s action in instructing Naples to state falsely that she did not have a key and Naples’ false statements concerning the condition of the apartment satisfy this element. The plaintiff’s actions in paying the two checks, signing the lease, and moving into the apartment satisfy the fourth and fifth requirements. We conclude that plaintiff established at least a prima fa-cie cause of fraud and deceit.

The trial court, however, ruled that plaintiff could not recover for fraud because “an obligation of a tenant [is] to see that the apartment is spic and span before she moves in.” This observation pertains to whether plaintiff was justified in relying on the misrepresentations. While the general rule is that a plaintiff “ ‘is not justified in relying on representations made when he has ample opportunity to ascertain the truth of the representations before he acts ***’ ” (Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 1134, 404 N.E.2d 1026, quoting Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94, 169 N.E.2d 229), where the person making the statement has inhibited plaintiff’s inquiries by either creating a false sense of security or blocking investigation, the failure to inquire is not fatal (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 51-52, 390 N.E.2d 393; see also Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 492, 429 N.E.2d 1267). Both of these actions are present in the instant case as Naples precluded investigation by lying about the key and defendant Mueller falsely stated that “everything had been done.” Moreover, as the court in Mother Earth, Ltd. noted:

“even if plaintiffs were guilty of negligence in failing to insist on verification of [the false statement], the cause of action here presented is for an intentional tort, and it is well settled that an action for an intentional tort cannot be defeated by an assertion of negligence on the part of the plaintiff.” (72 Ill. App. 3d 37, 52, 390 N.E.2d 393.)

In the instant case, the action is also for fraudulent misrepresentation rather than negligent misrepresentation. Accordingly, plaintiff’s failure to inspect the apartment prior to signing the lease is insufficient to avoid the effect of defendants’ misconduct.

Nor is the defendants’ misconduct ameliorated by the characterization of the false statements as promises of future action. While “the general rule denies recovery for fraud based on a false representation of intention or future conduct, *** there is a recognized exception where the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634.) Such is the case here. Additionally, defendant Mueller, prior to plaintiff’s moving into the apartment, assured her that everything had been taken care of except the carpet cleaning. This is a statement of present fact sufficient to form a basis for fraud.

Defendants argue that any discrepancy between what plaintiff was promised and what she received was due entirely to mutual mistake, but the record does not provide support for this argument. “Indeed, it has been held that good faith is no defense where the fraud and deceit practiced consist, as here, of making false statements of fact as to the knowledge of the speaker.” Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 491, 429 N.E.2d 1267.

Finally, defendants have also contended that the trial court’s ruling represented a determination that plaintiff’s witnesses were not credible. The record provides no support for this assertion. The trial judge specifically stated that he did not believe that plaintiff had satisfied her duty to inspect the premises prior to signing the lease; this was the basis for the trial court’s ruling.

Accordingly, we conclude that the trial court’s ruling was against the manifest weight of the evidence and a new trial is therefore justified. Because of this result, we will not discuss in detail plaintiff’s assertions of error in the trial court’s refusal to admit certain evidence. We do note, however, that evidence of similar transactions and practices is admissible to establish defendants’ modus operandi and intent, and is also relevant to a determination of punitive damages. (Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1109-10, 1113, 408 N.E.2d 782; see also Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 333, 371 N.E.2d 634.) Defendants’ assertion that plaintiff’s failure to make an offer of proof in this connection has waived this issue on review is without merit. “Ordinarily an offer of proof is required so that the trial judge, opposing counsel, and the reviewing court would know what evidence was sought to be produced, but it is not necessary when the nature of that evidence is apparent.” (Allen & Korkowski & Associates v. Pettit (1982), 108 Ill. App. 3d 384, 388, 439 N.E.2d 102.) In the instant case, the evidence sought to be produced was before the court and subsequently struck on defendants’ motion. Thus, no offer of proof is necessary.

The next issue for review is whether plaintiff proved a cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1981, ch. 1211/2, par. 261 et seq.). Section 2 of the Act provides that:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. ***.” (Ill. Rev. Stat. 1981, ch. 121V2, par. 262.)

The first step in our analysis is to determine whether the statute applies to the instant case.

The Act prohibits deception and unfair practices in the “conduct of any trade or commerce.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. I2IV2, par. 262.) Section 1(f) defines “trade and commerce” as “the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.” (Ill. Rev. Stat. 1981, ch. I2IV2, par. 261(f).) The supreme court has indicated that “[tjhis broad language evidences an intent that the Act have correspondingly broad applicability.” (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 284, 430 N.E.2d 1012.) “It has been stated that there is a clear mandate from the legislature to the courts to use the Consumer Fraud Act to the utmost degree to eradicate all forms of deception and unfair business practices.” (Buzzard v. Bolger (1983), 117 Ill. App. 3d 887, 893, 453 N.E.2d 1129.) We will analyze the statute with these precepts in mind.

It has been held that “[u]nder a liberal construction of the broad language of section 1(f), the defendant’s leasing of lots and providing utilities to his tenants are a ‘distribution of services’ and, therefore, a ‘trade or commerce’ as defined by the Act.” (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 87-88, 438 N.E.2d 924; see also People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 838, 445 N.E.2d 1249.) Thus, there is precedent for applying the statute to the landlord-tenant relationship. Defendant contends that these cases are distinguishable because services were furnished in conjunction with the leases. An examination of the lease in the instant case discloses covenants similar to those in the above cases. These include the provision of heating and ventilation, maintenance of the apartment and grounds, and a water supply. Moreover, the statutory definition also embraces the “distribution” of "any property *** real, personal or mixed ***.” (Ill. Rev. Stat. 1981, ch. 121V2, par. 261(f).) In our opinion, this language is sufficiently broad to include the instant landlord-tenant relationship. As the Pennsylvania Supreme Court declared in construing a very similar statute, “[t]o refuse to apply the Consumer Protection Law to the leasing of residential housing would needlessly insulate a great percentage of market transactions from the Law’s salutary antifraud provisions. Only by exalting form over substance could such a course be pursued.” (Commonwealth v. Monumental Properties, Inc. (1974), 459 Pa. 450, 478, 329 A.2d 812, 826.) Accordingly, we conclude that the Act applies to the instant case.

We must next consider whether plaintiff has standing to sue under the Act, that is, whether she qualifies as a “consumer.” (See People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 88, 438 N.E.2d 924.) Although the statute provides a right of action to “[a]ny person who suffers damage as a result of a violation of Sections 2 through 20 of this Act ***” (Ill. Rev. Stat. 1981, ch. I2IV2, par. 270a), the supreme court has held that only “consumers” have standing to sue under the Act (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 328, 371 N.E.2d 634). A “consumer” is defined in section 1(e) of the Act as “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household *** >> j>ev_ gtat. 1981, eh. \2V-k, par. 261(e).) Section 1(b) of the Act defines merchandise as including “any objects, wares, goods, commodities, intangibles, real estate situated outside the State of Illinois, or services ***.” (Ill. Rev. Stat. 1981, ch. 12V-k, par. 261(b).) As indicated above, the lease which defendants induced plaintiff to sign provided that defendants would perform certain services in conjunction with the tenancy. These included maintenance of the apartment and grounds, heating and plumbing facilities. Under Hedrick, this is sufficient for plaintiff to maintain an action under the Act. People ex rel. Fahner v. Hedrick (1982), 108 Ill. App. 3d 83, 88, 438 N.E.2d 924.

Our determination that plaintiff established a prima facie case of fraud is sufficient to warrant the conclusion that the same acts violate the Act bécause the Act prohibits any misrepresentation. The statute has also been construed to provide an even greater protection than the common law action of fraud. (Buzzard v. Bolger (1983), 117 Ill. App. 3d 887, 893, 453 N.E.2d 1129.) We therefore conclude that plaintiff established a violation of the Act and the trial court’s decision was accordingly against the manifest weight of the evidence.

We turn now to the issue of punitive damages. As our discussion of the prior issues has indicated, the trial court’s decision in this case was predicated on a finding that the plaintiff’s failure to inspect the apartment precluded the imposition of tort liability. Our task now is to determine whether a remandment of the punitive damages count is justified in this case.

“It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others [citation]. Where punitive damages may be assessed, they are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future.” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172,186, 384 N.E.2d 353.)

In the instant case the tort which assertedly is the predicate for the punitive damages count is the defendants’ fraudulent misrepresentation. This tort can support an award of exemplary or punitive damages. (Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1112-13, 408 N.E.2d 782.) The question now becomes whether plaintiff’s trial presentation developed facts sufficient to conclude that punitive damages might be assessed in this case.

Plaintiff adduced testimony, subsequently stricken, the thrust of which was that defendants’ policy and practice was to lease apartments which did not conform to the model apartment in substantial aspects. Such a pattern of deception will justify an award of punitive damages. (Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1113, 408 N.E.2d 782.) This comports with the policy considerations discussed in Kelsay. because plaintiff’s actual damages are relatively low, the deterrent effect of punitive damages may be necessary to discourage the repeated fraud apparently practiced by defendants. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186-87, 384 N.E.2d 353.) Accordingly, we conclude that a remand of this count is proper. We caution, however, that the foregoing discussion should not be construed as a determination that punitive damages should necessarily be imposed in this case. We leave that determination to the trial court.

For the foregoing reasons, that portion of the judgment entered in favor of defendants as to counts I, II and IV is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded with directions.

SULLIVAN and O’CONNOR, JJ., concur.