Ledesma by Ledesma v. Cannonball, Inc.

Decision Date24 April 1989
Docket NumberNo. 88-1722,88-1722
Citation538 N.E.2d 655,182 Ill.App.3d 718,131 Ill.Dec. 280
Parties, 131 Ill.Dec. 280 Yvette LEDESMA, a minor, by her mother and next friend, Juliette LEDESMA, Plaintiff-Appellant, v. CANNONBALL, INC., Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

O'Callaghan & Associate, P.C., Chicago (Joseph M. O'Callaghan, Cindy Van Ryn, of counsel), for plaintiff-appellant.

Mark G. Slutsky & Associates, Chicago (Mark G. Slutsky, of counsel), for defendant-appellee.

Justice QUINLAN 1 delivered the opinion of the court:

The plaintiff, Yvette Ledesma, a minor, by her mother and next friend, Juliette Ledesma, filed suit against Alan Sherman and his employer, Cannonball, for personal injuries Yvette sustained in an accident with Sherman when he was driving a leased vehicle for Cannonball. During the course of the litigation, plaintiff settled with Sherman, and thereafter she filed a second amended complaint against Cannonball, alleging negligent operation of a motor vehicle by Cannonball under a theory of respondeat superior (count I), wilful and wanton operation of a motor vehicle by Cannonball under a theory of respondeat superior (count II), negligent entrustment of a motor vehicle to Sherman (count III), and wilful and wanton entrustment of a motor vehicle to Sherman (count IV). Defendant Cannonball moved to dismiss all four counts, and the trial court granted defendant's motion with prejudice as to counts I, II, and III. Defendant then moved for summary judgment on count IV and the trial court granted that motion. The plaintiff moved to vacate the trial court's dismissal of counts I through III, but the motion was denied. Plaintiff now appeals the dismissal of counts I through III, the grant of summary judgment as to count IV, and the denial of her motion to vacate the dismissal of counts I through III.

On August 7, 1979, the plaintiff was riding her bicycle with a group of cyclists east on Wellington Street in Chicago. While crossing Ashland Avenue, the plaintiff collided with a motor vehicle driven by Alan Sherman, a Cannonball employee who was, Cannonball admitted, acting within the scope of his employment at the time. It is disputed whether Sherman or Yvette had the right of way at the intersection.

The defendant Cannonball is a common carrier messenger and delivery service. Just prior to December 20, 1978, Sherman had applied for a position as a driver with Cannonball. Sherman filled out a job application with Cannonball prior to being hired by Cannonball. His job application established that he had a valid Illinois driver's license and that he had insurance on his personal motor vehicle. In answer to a question on the application concerning whether his license had ever been suspended or revoked, Sherman responded that it had. Additionally, in response to another question concerning whether he had had any traffic violations in the past year, Sherman wrote "Yes * * * License revoked for accident. Traffic ticket for speeding." After completing the application, Sherman was interviewed by Cannonball's personnel assistant, Patricia Vecchio. Ms. Vecchio, in her deposition, stated that Sherman's prior license revocation was not a determinative factor in the decision to hire Sherman, and went on to explain that the decision to hire a driver/messenger was based upon various other factors, such as, his or her knowledge of the Chicago area, communication skills, physical appearance, and driving record. There was, she said, no policy in effect at that time to investigate a potential employee's prior driving record beyond the information in the application when the applicant had a valid driver's license.

On or about December 20, 1978, Cannonball hired Sherman. Thereafter, Sherman used his personal vehicle while working for Cannonball, and Cannonball leased it from him and allowed him to operate the vehicle under its authority.

As stated above, the accident between plaintiff and Sherman took place on August 7, 1979 while Sherman was driving for Cannonball. On March 19, 1982, plaintiff sued Cannonball for personal injuries sustained in the accident, and on January 20, 1983, amended her complaint to include Sherman as a defendant. During the course of the litigation, there were numerous dismissals and amendments to various counts of plaintiff's original complaint, which are not pertinent to this appeal. On December 15, 1986, plaintiff executed a "release" of Sherman, and accepted $25,000, which was the limit of Sherman's insurance policy, in settlement of her claim against Sherman. The "release" was a form document, but there was additional language typed into the form which stated: "This release does not effect [sic] Yvette Ledesma's cause of action against Cannonball, Inc. or any other party." Based upon the settlement and release, the trial court dismissed Yvette's claims against Sherman with prejudice.

After this dismissal of plaintiff's claims, there were further attempted amendments and subsequent dismissals of various counts of plaintiff's complaint, and, eventually, on June 24, 1987, plaintiff filed a completely new amended complaint against Cannonball. This amended complaint, as stated earlier, set forth four counts against Cannonball: negligent operation of a motor vehicle based on respondeat superior (count I), wilful and wanton operation of a motor vehicle based on respondeat superior (count II), negligent entrustment of a motor vehicle to Sherman (count III), and wilful and wanton entrustment of a motor vehicle to Sherman (count IV).

Thereafter, on November 6, 1987, the trial court, on defendant's motion, dismissed counts I through III of this complaint with prejudice. 2 Defendant then moved for summary judgment on the only remaining count, count IV, for wilful and wanton entrustment of a motor vehicle. On January 21, 1988, the trial court granted defendant's motion on count IV. Subsequently, plaintiff moved the court to vacate its prior order of dismissal dated November 6, 1987 concerning counts I through III. The plaintiff's motion to vacate relied in part upon plaintiff's release of Sherman which contained the reservation of rights against Cannonball, and she therefore contended that she had not released Cannonball. On April 27, 1988 the trial court denied plaintiff's motion to vacate its dismissal order of November 6, 1987, and, in its order, stated that its denial of plaintiff's motion to vacate was based upon the court's belief that the plaintiff's release of the employee, Sherman, served to release plaintiff's respondeat superior claims against the employer, Cannonball.

Plaintiff raises three issues on appeal: (1) whether the trial court erred when it dismissed counts I and II of plaintiff's complaint for negligent and wilful and wanton operation of a motor vehicle based on respondeat superior, as well as its denial of her motion to vacate the dismissal of those counts; (2) whether the trial court erred when it dismissed count III of plaintiff's complaint for negligent entrustment, as well as its denial of her motion to vacate the dismissal on that count; and (3) whether the trial court erred when it granted defendant's motion for summary judgment on count IV of plaintiff's complaint for wilful and wanton entrustment.

The plaintiff's first assertion of error is that the trial court's dismissal of counts I and II of her complaint, for negligent and wilful and wanton operation of a motor vehicle under respondeat superior, as well as the trial court's denial of her motion to vacate the dismissal, were erroneous. The plaintiff initially argues that the trial court erred when it determined that her "release" of Sherman also released Cannonball. She contends that it was the intent of the parties that the document entitled "release" was, in fact, a covenant not to sue Sherman, relying upon the express reservation of her right to sue Cannonball in the agreement, as well as the correspondence between the parties, which evidenced, she asserts, the intent of the parties to reserve her right to sue Cannonball. Moreover, she argues, counts I and II stated valid causes of action for negligence and wilful and wanton conduct under a theory of respondeat superior, and she claims that there was no improper commingling of claims within the counts.

The defendant, on the other hand, argues that the "release" of Sherman was, in fact, a release and not a covenant not to sue since it was entitled "release" and the release stated that it was a full and final settlement of plaintiff's claim. Inasmuch as plaintiff's claims in counts I and II are wholly vicarious claims based on respondeat superior, the defendant contends that plaintiff's full release of her cause of action against Sherman necessarily releases her cause of action against Cannonball as well. Also, the defendant states that because this agreement with Sherman was a release, the express reservation had no effect in preserving any derivative liability there may have been against Cannonball. Thus, the defendant argues that the trial court properly dismissed counts I and II, and in any event, certain correspondence between the parties indicated that plaintiff only intended to reserve the entrustment counts. Defendant also asserts that plaintiff improperly commingled two claims in count I, namely, the negligent operation of a motor vehicle under respondeat superior claim, and an assigned claim from her mother for medical expenses. Finally, defendant contends that plaintiff's factual allegations were insufficient to support claims for negligent and wilful and wanton operation of a motor vehicle under a respondeat superior theory, and, therefore, the trial court properly dismissed those counts as well.

Whether an agreement is a release which releases the entire cause of action, or is merely a covenant not to sue which only affects the right to bring suit against a party, depends upon the intent of the parties to...

To continue reading

Request your trial
21 cases
  • Marquis v. State Farm Fire and Cas. Co.
    • United States
    • Kansas Supreme Court
    • June 5, 1998
    ...263, 161 S.E.2d 281 (1968); Wise v. Fiberglass Systems, Inc., 110 Idaho 740, 718 P.2d 1178 (1986); Ledesma v. Cannonball, Inc., 182 Ill.App.3d 718, 131 Ill.Dec. 280, 538 N.E.2d 655 (1989); Houlihan v. McCall, 197 Md. 130, 78 A.2d 661 However, other jurisdictions, including Kansas, have foun......
  • McCurry v. School Dist. of Valley
    • United States
    • Nebraska Supreme Court
    • February 26, 1993
    ...at 865, 499 N.E.2d at 453. Accord, Hall v. Schulte, 172 Ariz. 279, 836 P.2d 989 (Ariz.App.1992); Ledesma v. Cannonball, Inc., 182 Ill.App.3d 718, 131 Ill.Dec. 280, 538 N.E.2d 655 (1989); Ray Korte Chevrolet v. Simmons, 117 Ariz. 202, 571 P.2d 699 (Ariz.App.1977); Hovatter v. Shell Oil Compa......
  • International Ins. Co. v. Sargent & Lundy, 1-90-2222
    • United States
    • United States Appellate Court of Illinois
    • January 22, 1993
    ...Prairie Material Sales, Inc. (1989), 190 Ill.App.3d 571, 575, 137 Ill.Dec. 857, 546 N.E.2d 802; Ledesma v. Cannonball, Inc. (1989), 182 Ill.App.3d 718, 724, 131 Ill.Dec. 280, 538 N.E.2d 655.) We note, however, that nowhere in the agreement is the word "release" found. Instead, it speaks of ......
  • Baumrucker v. Express Cab Dispatch, Inc.
    • United States
    • United States Appellate Court of Illinois
    • July 18, 2017
    ...Richards v. Checker Taxi Co. , 168 Ill. App. 3d 154, 118 Ill.Dec. 980, 522 N.E.2d 650 (1988) and Ledesma v. Cannonball, Inc. , 182 Ill. App. 3d 718, 131 Ill.Dec. 280, 538 N.E.2d 655 (1989). In Richards , the plaintiff, who was injured while a passenger in a Checker taxi, obtained a jury ver......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT