Alberstett v. Country Mut. Ins. Co.

• Decision Date: 07 December 1979
• Docket Number: No. 78-130,78-130
• Citation: 34 Ill.Dec. 788,79 Ill.App.3d 407,398 N.E.2d 611
• Parties: , 34 Ill.Dec. 788 David M. ALBERSTETT et al., Plaintiffs, v. COUNTRY MUTUAL INSURANCE COMPANY et al., Defendants. (Philip R. CANFIELD, M. D., et al., Third-Party Plaintiffs-Appellants, v. ROCKFORD MEMORIAL HOSPITAL et al., Third-Party Defendants-Appellees.)
• Court: United States Appellate Court of Illinois

Page 611

398 N.E.2d 611

79 Ill.App.3d 407, 34 Ill.Dec. 788

David M. ALBERSTETT et al., Plaintiffs, v. COUNTRY MUTUAL INSURANCE COMPANY et al., Defendants.

(Philip R. CANFIELD, M. D., et al., Third-Party Plaintiffs-Appellants, v. ROCKFORD MEMORIAL HOSPITAL et al., Third-Party Defendants-Appellees.)

No. 78-130.

Appellate Court of Illinois, Second District.

Dec. 7, 1979.

[34 Ill.Dec. 789] Jeffrey Cole, Abigail K. Spreyer, Jerome H. Torshen, Ltd., Garretson & Santora, Chicago, for third-party plaintiffs-appellants

Thomas, Kostantacos, Traum & Reuterfors, Kenneth W. Traum, Rockford, Wildman, Harrold, Allen & Dixon, James P. Door, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Rudolf G. Schade, Jr., and Stanley J. Davidson, Chicago, for third-party defendants-appellees.

GUILD, Presiding Justice:

This appeal emerges from a personal injury malpractice action brought by the survivors and the estate of a deceased 9 year old boy. The decedent, Scott David Alberstett, a minor, fell and suffered a severe laceration of his left knee while doing chores on the farm of his grandfather, Merle J. Alberstett. He was taken to the Durand Health Center where the wound was cleaned and sutured by Dr. Canfield. Twenty-four hours later his mother called Dr. Bazuin at the Health Center, who suggested that she loosen the bandages and give Scott some aspirin. The next evening Scott's mother and father took him to the emergency room of the Rockford Memorial Hospital where he was admitted with a diagnosis of Cellulitus. The following day Dr. Webb consulted with Dr. Stohl and the diagnosis was changed to that of gas gangrene, for which he was treated. Later in the day Scott was transferred to the Lutheran General Hospital in Park Ridge, Illinois, where he died five days later.

In June, 1978 Scott's parents filed suit against the grandfather and his liability insurer, Country Mutual Insurance Company. The complaint therein was amended three times. In the first amended complaint Dr. Canfield, the original treating physician, was named as a co-defendant. In the third amended complaint Dr. Bazuin was added as a co-defendant. Doctors Canfield and Bazuin (hereinafter third party plaintiffs) filed a third party complaint against Rockford Memorial Hospital and Drs. Webb and Stohl (hereinafter third party defendants) who were not defendants in the original action, in which they alleged that Dr. Stohl was guilty of malpractice in failing to recognize the seriousness of Scott's injury. The third party complaint also alleged that Drs. Webb and Stohl and the Rockford Memorial Hospital were negligent in attempting to treat the gangrenous condition at the Rockford Hospital, knowing that the hospital did not have the proper facilities for effective treatment. That complaint sought equitable contribution of damages which might be imposed in the original action upon the third party plaintiffs but which, in fact, were caused by the alleged malpractice of the third party defendants.

Subsequent to the filing of the third party complaint third party plaintiffs along with all other original defendants entered into a release from the original plaintiff for $50,000 and, as a consequence, that case was dismissed. The "release" provides in pertinent part as follows:

RELEASE

"For the sole consideration of Fifty Thousand ($50,000.00) Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned do by the execution hereof release, remise and forever discharge Continental Insurance Company, Philip R. Canfield, M.D., Charles H. Bazuin, M.D., Merle J. Alberstett and Country Mutual Insurance Company from and against any and all claims of any nature whatsoever arising out of or in any way pertaining to that certain occurrence on January 13, 1976, wherein Scott D. Alberstett fell, lacerating his left knee on certain farm premises owned by Merle J. Alberstett and thereafter died of said injury and complication therefrom.

It is understood that Continental Insurance Company, Philip R. Canfield, M.D., Charles H. Bazuin, M.D., Merle J. Alberstett and Country Mutual Insurance Company expressly deny any liability on their part causing or contributing to the aforementioned accident, resulting injuries, death and damages therefrom and that the sum of Fifty Thousand ($50,000.00) Dollars is paid for the purpose of avoiding litigation and shall not be construed as an admission of liability on their part. This Release may be pled as an absolute bar to any action hereafter instituted against Continental Insurance Company, Philip R. Canfield, M.D., Charles H. Bazuin, M.D., Merle J. Alberstett and Country Mutual Insurance Company, their heirs, executors, administrators, agents and assigns."

After the dismissal of the original complaint and in response to the third party defendants' motion to dismiss the third party complaint, the trial court issued a memorandum ruling in which he found that the third party plaintiffs and third party defendants were not joint tortfeasors and that the release procured by the third party plaintiffs did not bar a possible action by the original plaintiffs against the third party defendants. The trial court further found that the third party complaint was a purely derivative action and since the original plaintiffs had not assigned their right of action to the third party plaintiffs, no cause of action existed. Based on this memorandum, the trial court dismissed the third party complaint. The third party plaintiffs appeal.

Illinois retains the traditional rule that the release of one joint tortfeasor releases all. (Guth v. Vaughan (1923), 231 Ill.App. 143; Tidwell v. Smith (1960), 27 Ill.App.2d 63, 169 N.E.2d 157.) The same rule applies to those concurrently liable for a single indivisible injury, not merely to those who are technically joint tortfeasors. (Tidwell v. Smith, supra; Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill.App.3d 637, 350 N.E.2d 242; Manthei v. Heimerdinger (1947), 332 Ill.App. 335, 75 N.E.2d 132.) Thus, a document such as this has been held to be a bar in a subsequent suit against a malpracticing doctor. (See, e. g., Guth v. Vaughan, supra.) In effect, a release which is intended to release all the parties acts as a satisfaction as a result of this rule. It is a final bar because all of the plaintiff's injury is compensated for in the eyes of the law and, because of this, those tortfeasors paying for the satisfaction can be said to have paid as well for any damages, if any, caused by non-paying negligent parties.

There is nothing to suggest that Scott has not received what was intended as full compensation for his injuries in settlement of this litigation and that said settlement was not entered into in good faith or was unreasonable. ¹ The document does not reserve any rights against other parties or contain any restrictions as to the effect of the release. At the time the release was...