Simmons v. Blauw, 1-93-1053

• Decision Date: 06 May 1994
• Docket Number: No. 1-93-1053,1-93-1053
• Citation: 635 N.E.2d 601,200 Ill.Dec. 262,263 Ill.App.3d 829
• Parties: , 200 Ill.Dec. 262 Carolyn Lee SIMMONS, Plaintiff-Appellant, v. Raymond K. BLAUW, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 601

635 N.E.2d 601

263 Ill.App.3d 829, 200 Ill.Dec. 262

Carolyn Lee SIMMONS, Plaintiff-Appellant, v.Raymond K. BLAUW, Defendant-Appellee.

No. 1-93-1053.

Appellate Court of Illinois First District, Sixth Division.

May 6, 1994.

James Paul Costello, Ltd., Chicago (James P. Costello and Gregory A. Braun, of counsel), for plaintiff-appellant.

Taylor, Miller, Sprowl, Hoffnagle & Merletti, Chicago (Michael W. Drumke, of counsel), for defendant-appellee.

Justice GIANNISdelivered the opinion of the court:

Plaintiff brought this action seeking recovery for personal injuries allegedly sustained as a result of the negligent conduct of defendant.The trial court dismissed the cause, finding that plaintiff had relinquished the right to proceed against defendant when she entered into a settlement and executed a release of the claim.Plaintiff appeals the dismissal of her complaint, contending that the settlement and release were invalid because they were predicated upon a mutual mistake of fact as to the nature and extent of plaintiff's injuries.

The record reveals that plaintiff was involved in an automobile collision on August 24, 1990, when the vehicle driven by defendant struck the rear of plaintiff's vehicle.After the accident, plaintiff consulted her family doctor, Dr. Bryce Palchick.Palchick began treating plaintiff for a muscular strain in her back on August 29, 1990, five days after the accident.During the course of his treatment over the next three months, Palchick did not diagnose or discover a herniated disc in plaintiff's back.While under Palchick's care, plaintiff was treated with anti-inflammatory medication, muscle relaxants and physical therapy.Plaintiff also underwent physical therapy three times per week from September 24, 1990, to November 16, 1990.

On November 19, 1990, Palchick released plaintiff from his care for the injuries sustained in the automobile accident.Palchick saw plaintiff for unrelated medical problems on two separate occasions, December 20, 1990, and February 6, 1991, before she settled her claim.

On March 25, 1991, plaintiff executed the release discharging defendant for any claims arising out of the automobile accident.In consideration for the release, plaintiff received $5,082, three times the amount of her medical expenses and lost wages, which totalled $1,693.73.

On May 6, 1991, plaintiff began to experience pain in her neck and left shoulder, but the pain subsided in the following weeks.On May 26, 1991, plaintiff experienced numbness in her arm, and she consulted Palchick approximately four weeks later on June 21, 1991.After an EMG examination, plaintiff was admitted to the hospital for spinal surgery.

In her affidavit filed in opposition to defendant's motion to dismiss, plaintiff asserted that when she signed the release, she believed that her injuries resulting from the automobile accident were healed and would not require further medical treatment.Plaintiff also asserted that after the surgery, her medical bills were over $15,000, and she had been unable to work for over two months.

Palchick asserted in his affidavit that he believed the trauma plaintiff received in the August 24, 1990, automobile accident was "correctly related" to the herniated disc for which she required surgery.

Plaintiff had retained an attorney, Joseph Dowd, to represent her in the negotiations for settlement of her claim against defendant.Dowd began settlement negotiations approximately one month prior to the execution of the release on March 25, 1991.In his affidavit, Dowd averred that he and "defendant's insurer" believed that plaintiff's injuries were "muscular in nature, non-permanent and that her condition had satisfactorily improved."Dowd also averred that soft-tissue injuries resulting from automobile accidents were typically settled for triple the amount of the plaintiff's special damages.

Plaintiff filed suit against defendant on April 30, 1992.The defendant moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure, based upon the settlement and release.In opposing defendant's motion, plaintiff asserted that the release had been executed under a mutual mistake of fact as to the nature and extent of her injuries.In support of this assertion, plaintiff filed her own affidavit along with that of Dowd and Palchick.

The trial court granted defendant's motion, and dismissed the complaint.In entering this ruling, the trial judge relied upon the decision in Rakowski v. Lucente(1984), 104 Ill.2d 317, 84 Ill.Dec. 654, 472 N.E.2d 791, and declined to follow the reasoning employed in Meyer v. Murray(1979), 70 Ill.App.3d 106, 26 Ill.Dec. 48, 387 N.E.2d 878, which had been cited by plaintiff's counsel.

Plaintiff subsequently filed a motion for reconsideration which was denied by the trial court, and plaintiff has appealed.

On appeal, plaintiff asserts that the trial court erred in dismissing her complaint based upon the settlement and release executed by her.In support of this assertion, plaintiff contends that the settlement and release should have been set aside where they resulted from a mutual mistake of fact.

A release is a contract and is to be construed under traditional contract law.(Farm Credit Bank v. Whitlock(1991), 144 Ill.2d 440, 447, 163 Ill.Dec. 510, 581 N.E.2d 664.)The intention of the parties to the contract must be determined from the instrument itself, and where no ambiguity exists, construction of the instrument is a matter of law.( Farm Credit Bank, 144 Ill.2d at 447, 163 Ill.Dec. 510, 581 N.E.2d 664.)Ambiguity will be found where a contract is capable of being understood in more than one way.( Farm Credit Bank, 144 Ill.2d at 447, 163 Ill.Dec. 510, 581 N.E.2d 664.)Where a court finds that a contract is ambiguous, its construction is then a question of fact, and parol evidence is admissible to explain and ascertain what the parties intended.( Farm Credit Bank, 144 Ill.2d at 447, 163 Ill.Dec. 510, 581 N.E.2d 664.)Where a written agreement is clear and explicit, a court must enforce the agreement as written.(Rakowski v. Lucente(1984), 104 Ill.2d 317, 323, 84 Ill.Dec. 654, 472 N.E.2d 791.)Where there is no ambiguity, the meaning of the instrument and the intention of the parties must be gathered from the face of the document without the assistance of parol evidence or any other extrinsic aids.Rakowski, 104 Ill.2d at 323, 84 Ill.Dec. 654, 472 N.E.2d 791.

A release may be avoided, however, where it was obtained through fraud, duress, illegality, or mistake.(Frank Rosenberg, Inc. v. Carson Pirie Scott & Co.(1963), 28 Ill.2d 573, 579, 192 N.E.2d 823.)A unilateral or self-induced mistake is not sufficient to void a clear and unambiguous release.(Rakowski, 104 Ill.2d at 324, 84 Ill.Dec. 654, 472 N.E.2d 791.)The mistake of fact must be mutual, material to the transaction, and affect its substance.Rakowski, 104 Ill.2d at 324, 84 Ill.Dec. 654, 472 N.E.2d 791.)

A release is the abandonment of a claim to the person against whom the claim exists.(McComb v. Seestadt(1981), 93 Ill.App.3d 705, 706, 49 Ill.Dec. 15, 417 N.E.2d 705.)Once the defendant establishes the existence of a release, legal and binding on its face, the burden shifts to the plaintiff to prove it invalid by clear and convincing evidence.McComb, 93 Ill.App.3d at 706, 49 Ill.Dec. 15, 417 N.E.2d 705;Meyer v. Murray(1979), 70 Ill.App.3d 106, 111, 26 Ill.Dec. 48, 387 N.E.2d 878.Yet, cases which have determined the validity of releases based on a mistake of fact with respect to the nature and extent of the plaintiff's injuries have been treated sui generis, and the rules governing releases from liability for nonpersonal injury torts or breaches of contracts do not apply.(Meyer, 70 Ill.App.3d at 111, 26 Ill.Dec. 48, 387 N.E.2d 878.)In such cases, releases have been voided where there appears to be a mutual mistake as to the nature and extent of the injury sustained and where enforcement of the release produces an unconscionable result in light of the facts as they are finally determined.SeeNewborn v. Hood(1980), 86 Ill.App.3d 784, 42 Ill.Dec. 96, 408 N.E.2d 474;Scherer v. Ravenswood Hospital Medical Center(1979), 70 Ill.App.3d 939, 27 Ill.Dec. 219, 388 N.E.2d 1268;Meyer v. Murray(1979), 70 Ill.App.3d 106, 26 Ill.Dec. 48, 387 N.E.2d 878;Florkiewicz v. Gonzalez(1976), 38 Ill.App.3d 115, 347 N.E.2d 401;Welsh v. Centa(1966), 75 Ill.App.2d 305, 221 N.E.2d 106;Reede v. Treat(1965), 62 Ill.App.2d 120, 210 N.E.2d 833;Ruggles v. Selby(1960), 25 Ill.App.2d 1, 165 N.E.2d 733;Clancy v. Pacenti(1957), 15 Ill.App.2d 171, 145 N.E.2d 802.

A unilateral or self-induced mistake as to the nature and extent of the plaintiff's injuries is insufficient to void a clear and unambiguous release, and the mistake of fact must be mutual, material to the transaction, and affect its substance.(Meyer, 70 Ill.App.3d at 111-12, 26 Ill.Dec. 48, 387 N.E.2d 878;Florkiewicz, 38 Ill.App.3d at 120, 347 N.E.2d 401.)In assessing whether a mutual mistake of fact existed, courts will examine whether (1)the parties believed the plaintiff had recovered at the time of the release, (2) the condition was one which ordinary x-rays and customary examination did not reveal, and (3) the evidence justified the conclusion that the plaintiff acted with reasonable diligence in ascertaining the extent of injury.Schultheis v. McWilliams Electric Co.(1991), 219 Ill.App.3d 571, 578, 162 Ill.Dec. 286, 579 N.E.2d 1100, quotingScherer v. Ravenswood Hospital Medical Center(1979), 70 Ill.App.3d 939, 942, 27 Ill.Dec. 219, 388 N.E.2d 1268.

The release signed by plaintiff in the instant case provided that, in consideration for $5,082, plaintiff released defendant from all claims for "all injuries, known and unknown, * * * which [had] resulted or may in the future develop from [the] accident" on August 24, 1990.In addition, the release provided that it had been completely read, fully...