Beaird v. Brown

• Decision Date: 13 March 1978
• Docket Number: No. 77-230,77-230
• Citation: 15 Ill.Dec. 583,58 Ill.App.3d 18,373 N.E.2d 1055
• Parties: , 15 Ill.Dec. 583 Walter C. BEAIRD and Jacqueline M. Beaird, Plaintiffs-Appellees, v. Leonard BROWN, d/b/a North Shore Inn & Marina, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1055

373 N.E.2d 1055

58 Ill.App.3d 18, 15 Ill.Dec. 583

Walter C. BEAIRD and Jacqueline M. Beaird, Plaintiffs-Appellees, v. Leonard BROWN, d/b/a North Shore Inn & Marina, Defendant-Appellant.

No. 77-230.

Appellate Court of Illinois, Third District.

March 13, 1978.

Joel A. Deutsch, Deutsch & Deutsch, Rock Island, for defendant-appellant.

Dennis A. Deporter, Braud, Warner, Neppl & Westensee, Ltd., Rock Island, for plaintiffs-appellees.

BARRY, Justice.

Consistent with the jury's verdict, the Circuit Court of Rock Island County entered a judgment against the defendant, Leonard Brown, doing business as the North Shore Inn and Marina, for the plaintiff, Walter C. Beaird, in the amount of $2,023.26 plus costs, and for the plaintiff, Jacqueline M. Beaird, in the amount of $3,759.55 plus costs. This action was brought pursuant to the Liquor Control Act (Ill.Rev.Stat.1975, ch. 43, par. 94 et seq.) which incorporated the Dram Shop Act of 1874.

Subsequently, the defendant filed a motion for a $5,100 credit against the judgment for funds received by the plaintiffs, $5,000 from their insurance carrier under their uninsured motorist coverage and a release-trust agreement between the plaintiffs and the insurance company and an additional $100 received, in consideration of a covenant not to sue, from George Cutler, the uninsured motorist. This post-trial motion was denied in its entirety.

The release-trust agreement provides, in pertinent part:

"We, for the sole consideration of Five Thousand and no/100 dollars ($5,000) to be paid by Central Security Mutual Insurance Company, hereinafter called the Company, the undersigned in the capacity of insured, do hereby release and for ever discharge the Company from any and all claims under the Uninsured Motorist Protection coverage * * * issued by the Company to Walter Beaird, and resulting from an accident which occurred on May 10, 1975, at or near Rock Island County, Illinois.

We, further agree, individually, or as designated above, in accordance with the terms of said coverage, to take, through representatives designed by the Company, and at the sole expense of the Company, such action as may be necessary or appropriate to recover from the owner or operator, or person or organization responsible for the operation of such uninsured automobile the damages resulting from such injury or death, and further agree to hold any monies in excess of Two Thousand dollars ($2,000) received as the result of settlement or judgment in trust for the Company, to be paid to the Company immediately upon same coming into our hands; provided that any sum received in excess of the amount paid by the Company, including legal or other expenses incurred by it in completing the recovery, shall be retained by us."

In this appeal, the defendant contends the trial court erred by failing to setoff the amounts from the judgment. The plaintiffs, in their brief, admit that the defendant is entitled to a credit of $100, the amount received by the plaintiffs under the covenant not to sue. However, the plaintiffs continue to dispute any other right of setoff claimed by the defendant.

As a general policy, the courts of this State recognize that an injured party is entitled to the full amount of any recovery. Therefore, if the injured plaintiff is required to repay his insurance company for any amount received under the uninsured motorist coverage, there should be no setoff against the judgment. On the other hand, it is a general rule of tort law that the injured plaintiff is entitled to receive no more than the amount of the judgment from or on behalf of joint tortfeasors. The defendant suggests that the plaintiffs received $5,100 to be applied toward the judgments which represent the total amount to which they were entitled. The defendant further suggests that the insurance company in this case has waived its right to subrogation in one of two ways by reason of the language of the release-trust agreement. Either, according to the defendant, the release-trust agreement should be read as a release of the insurance company's right to subrogation to the extent of at least the first $2,000 recovered, or it entirely released...