McComb v. Seestadt

• Decision Date: 17 February 1981
• Docket Number: No. 80-360,80-360
• Citation: 417 N.E.2d 705,93 Ill.App.3d 705,49 Ill.Dec. 15
• Parties: , 49 Ill.Dec. 15 Russell McCOMB, Plaintiff-Appellant, v. Starr SEESTADT, Defendant-Appellee, and Edward Juracka, Defendant.
• Court: United States Appellate Court of Illinois

Page 705

417 N.E.2d 705

93 Ill.App.3d 705, 49 Ill.Dec. 15

Russell McCOMB, Plaintiff-Appellant, v. Starr SEESTADT, Defendant-Appellee and Edward Juracka, Defendant.

No. 80-360.

Appellate Court of Illinois, First District, Second Division.

Feb. 17, 1981.

Raymond Kahn and William J. Harte, Ltd., Chicago (William J. Harte, Chicago, of counsel), for plaintiff-appellant.

Pretzel, Stouffer, Nolan & Rooney, Chartered, Chicago (Robert Marc Chemers and Joseph B. Lederleitner, Chicago, of counsel), for defendant-appellee.

PERLIN, Justice:

This action was brought by plaintiff, Russell McComb, to recover damages for injuries he sustained in a fall upon a sidewalk. Starr Seestadt, owner of the premises adjacent to the sidewalk, Edward Juracka and Patricia Juracka, owners of the premises adjoining Seestadt's premises, and Miguel Pedraza and Rosemarie Pedraza, occupiers of the premises owned by the Jurackas, were named as defendants. Defendant Seestadt filed a motion to dismiss based upon a covenant not to sue executed by plaintiff and his wife, Arlene McComb. The trial court granted the motion and dismissed the action as to defendant Seestadt. ¹ Plaintiff appeals from the dismissal contending that the trial court erred in granting defendant Seestadt's motion because the covenant not to sue was "grossly unfair and unconscionable."

For reasons hereinafter set forth, we affirm.

The following factual allegations emerge from pleadings and affidavits:

On August 17, 1976 plaintiff was walking on the "sidewalk adjacent to the premises" owned by defendant Seestadt, when his foot "got caught in a hole in the sidewalk of defendant Seestadt." He lost his balance and caught his foot "in the bushes extending over a riser on the premises" owned by the defendants Juracka and occupied by defendants Pedraza. As a result plaintiff fell to the concrete sidewalk and was injured. Allstate Insurance Company insured both defendant Seestadt and defendants Juracka.

On January 4, 1977 Bernard Hertko, a casualty adjuster for Allstate, initiated negotiations with plaintiff with regard to his claim against defendant Seestadt. At this time plaintiff was still undergoing treatment for his injuries, which were diagnosed as "a locked left knee, a degenerated medial meniscus tear along the posterior horn of the left knee and laxity of the left medial collateral ligaments." Treatment for these injuries included "a joint effusion, a left arthrotomy, a left medial meniscetomy and a repair of the medial collateral ligament." ² In March 1977 there was an additional diagnosis of "cellulitis over the left thigh, post vena caval clipping, a recurred pulmonary embolism; pulmonary infarction."

On October 17, 1977, 14 months from the date of the accident, more than 9 months after Hertko initiated negotiations, and more than 7 months after the final diagnosis, plaintiff executed the covenant not to sue in return for $7,500. Subsequently, on June 23, 1978, this lawsuit was filed.

A release or a covenant not to sue, in essence, is the abandoning of a claim to the person against whom the claim exists, and where the release or covenant is executed with knowledge of its meaning, causes of action covered by the release or covenant are barred. (See Ogren v. Graves (2nd Dist. 1976), 39 Ill.App.3d 620, 622, 350 N.E.2d 249.) Defenses which may be asserted to vitiate a release or covenant not to sue include fraud in the execution, fraud in the inducement, mutual mistake and mental incompetence. (Blaylock v. Toledo, Peoria & Western R. R. Co. (3rd Dist. 1976), 43 Ill.App.3d 35, 37, 1 Ill.Dec. 451, 356 N.E.2d 639.) Once the defendant establishes the existence of the document, legal and binding on its face, the burden shifts to the plaintiff to prove it invalid by clear and convincing evidence. Meyer v. Murray (1st Dist. 1979), 70 Ill.App.3d 106, 111, 26 Ill.Dec. 48, 387 N.E.2d 878.

Section 48 of the Civil Practice Act affords a means of obtaining at the outset of a case a summary disposition of issues of law or easily proved issues of fact. (Meyer v. Murray at 114, 26 Ill.Dec. 48, 387 N.E.2d 878.) If the record establishes that a genuine and material question of fact does not exist, the motion to dismiss should be allowed. Meyer v. Murray at 114, 26 Ill.Dec. 48, 387 N.E.2d 878.

Viewing the record under the law relevant to the determination of settlement agreements in personal injury actions, and in accordance with the law applicable to motions to dismiss pursuant to Section 48 of the Civil Practice Act, we believe for the reasons hereinafter stated, the trial court did not err in granting defendant Seestadt's motion to dismiss.

Plaintiff seeks the application of the rule that releases or covenants not to sue may be invalidated when it is shown that they are grossly unfair and unjust. We have no quarrel with this rule as discussed in Meyer v. Murray (1st Dist. 1979), 70 Ill.App.3d 106, 112, 26 Ill.Dec. 48, 387 N.E.2d 878; Ruggles v. Selby (1st Dist. 1960), 25 Ill.App.2d 1, 165 N.E.2d 733; and Clancy v. Pacenti (1st Dist. 1957), 15 Ill.App.2d 171, 145 N.E.2d 802, but it is clear that as applied in such cases the rule is premised upon a mutual mistake of fact regarding the nature and extent of the injuries sustained. (Blaylock v. Toledo, Peoria & Western R. R. Co. (3rd Dist. 1976), 43 Ill.App.3d 35, 38, 1 Ill.Dec. 451, 356 N.E.2d 639.) However, plaintiff's argument finds no support in the record for the application of this rule. Neither the pleadings nor plaintiff's affidavit set forth any facts from which it may be inferred there was a mutual mistake of fact resulting in the execution of the release. In his written response to defendant's motion to dismiss, plaintiff stated:

"In 1977 there was a diagnosis of pulmonary embolism, recurrent chest pains, and breathing difficulty. Further in March 1977 cellulitis over the left thigh, post vena caval clipping, a recurred pulmonary embolism, pulmonary infarction."

At the time the covenant was executed on October 17, 1977, plaintiff was fully aware of the nature and extent of his injuries. Yet in spite of these unresolved physical problems he executed the covenant not to sue defendant Seestadt. Under these facts, we cannot conclude that the extent of plaintiff's injuries was an "unexpected consequence." See Scherer v. Ravenswood Hospital Medical Center (1st Dist. 1979), 70 Ill.App.3d 939, 27 Ill.Dec. 219, 388 N.E.2d 1268; see also Kiest v. Schrawder (4th Dist. 1978), 56 Ill.App.3d 732, 14 Ill.Dec. 431, 372 N.E.2d 442.

Nor do the facts indicate that the casualty adjuster Hertko pressured plaintiff into settling. ³ More than four months passed from the date of the accident before Hertko contacted plaintiff to discuss a settlement and 14 months had passed before the settlement was reached. This is in sharp contrast to other cases where releases were set aside. (See Florkiewicz v. Gonzalez (1st Dist. 1976), 38 Ill.App.3d 115, 347 N.E.2d 401 (release executed three days after accident); Smith v. Broscheid (3rd Dist. 1964), 46 Ill.App.2d 117, 196 N.E.2d 380 (release executed two weeks after accident); Fraser v. Glass (2nd Dist. 1941), 311 Ill.App. 336, 35 N.E.2d 953 (release executed six days after accident).) Here plaintiff had ample time to seek medical treatment and to consult an attorney to determine possible legal remedies.

Furthermore, we note that the $7500 plaintiff received as consideration for the covenant not to sue was not a nominal or unconscionable amount as it was in other instances where a release was set aside. See Florkiewicz v. Gonzalez ($30 release for a skull fracture); Reede v. Treat (4th Dist. 1965), 62 Ill.App.2d 120, 210 N.E.2d 833 ($125 for a back injury); Smith v. Borscheid ($216.99 release for back injury).

Over the years a trend has developed to apply a doctrine of liberality with respect to setting aside settlement agreements which subsequently prove to be grossly unfair and unjust. (Meyer v. Murray, 70 Ill.App.3d at 112, 26 Ill.Dec. 48, 387 N.E.2d 878; Ruggles v. Selby, 25 Ill.App.2d at 12, 165 N.E.2d 733.) This development has progressed to the stage where it has recently been stated that the "trend is to set aside releases of personal injury claims in a situation where the facts, when finally known, present an unconscionable...