APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
The plaintiff, Shirley Kiest, and the defendant, John Schrawder, were driving automobiles which collided on November 28, 1973, resulting in the total loss of the plaintiff's car and personal injuries to her. Mrs. Kiest began to be treated by a physician, and the bills for medical expenses were being paid by the defendant's insurer. Mrs. Kiest was then contacted by an adjustor for the defendant's insurer some nine weeks after the collision for the purpose of possible settlement of the plaintiff's claim. Both the plaintiff and the adjustor believed the plaintiff to have suffered an ordinary whiplash injury the diagnosis arrived at by Mrs. Kiest's doctor, told to Mrs. Kiest, and relayed by her to the adjustor. However, her neck was still painful, and her husband advised her not to sign the release because he did not believe that she was "all right." About five weeks later, it turns out, a full release of the plaintiff's claim against the defendant arising from the collision was executed by Mrs. Kiest and her husband on March 12, 1974, more than 14 weeks after the accident. The release provided for payment of $5,486.17 (including property damage and medical expenses) and for payment of reasonable and necessary medical expenses not to exceed $500 incurred within one year from the date of the collision. The $5,486.17 was paid under the release, and about $97 in medical expenses under the $500, one-year limitation, was paid later.
Unfortunately, the plaintiff's injury was later determined to be more serious. More than one year after the accident, she underwent major surgery on a disk in her back including a bone graft from her hip. The cost of this surgery was between $3,000 and $4,000. The defendant's insurer refused to pay for these medical expenses.
Plaintiff then brought suit for $50,000 damages alleging that the release should be set aside due to a mutual mistake of fact. Upon motion by the defendant asserting the affirmative defense of the release and after a hearing, the trial court dismissed the plaintiff's action. This appeal ensued.
1 On appeal, the primary contention pursued by the plaintiff is that the trial court erred in failing to set aside the release on the basis of a mutual mistake of fact. That is, the plaintiff argues that both she and the defendant (by way of his insurer's adjustor) were mutually mistaken with respect to a material fact: the extent of the injuries sustained by the plaintiff. But in reality, we do not have here a mutual mistake of fact. At best, we have a unilateral mistake constructively adopted by or relied upon by another. It is the same mistake, not another, different one. The adjustor merely accepted Mrs. Kiest's assertion that her physician diagnosed her injury as whiplash, and paid her accordingly.
2 In Ogren v. Graves (1976), 39 Ill. App.3d 620, 622, 350 N.E.2d 249, 251, Mr. Justice Moran succinctly summarized the Illinois view on the enforcement of releases:
"A release, in essence, is the abandoning of a claim to the person against whom the claim exists and where the release is executed with knowledge of its meaning, causes of action covered by the release are barred. (Shaw v. Close, 92 Ill. App.2d 1, 3 (1968).) Because the law favors compromise, the party contending that a release was secured as a result of fraud, misrepresentation, or mistake, must prove such by clear and convincing evidence. (Child v. Lincoln Enterprises, Inc., 51 Ill. App.2d 76, 82 (1964).) A person claiming that a release is invalid because of a mistake must show that a mistake is mutual. A unilateral or self induced mistake will be insufficient to void a release. (Welsh v. Centa, 75 Ill. App.2d 305, 311-12 (1966); see Hudson v. Thies, 35 Ill. App.2d 189, 201-02 (1962), aff'd, 27 Ill.2d 548 (1963).) On review the trial court's finding will not be set aside unless it is against the manifest weight of the evidence. Child v. Lincoln Enterprises, Inc., at 82."
In another recent Illinois case, the comment was made that: "The trend is to set aside releases of personal injury claims in a situation where the facts, when finally known, present an unconscionable result". (Florkiewicz v. Gonzalez (1976), 38 Ill. App.3d 115, 120, 347 N.E.2d 401, 405.) This view was also stated in Ruggles v. Selby (1960), 25 Ill. App.2d 1, 12, 165 N.E.2d 733, 739, where the court observed that this trend "* * * is due in large measure to the fact that these are matters for the chancellor in equity who is vested with that degree of discretion and flexibility necessary to the doing of justice under the circumstances of each individual case." See also Welsh v. Centa (1966), 75 Ill. App.2d 305, 221 N.E.2d 106, 109-110.
The question is, therefore, whether the result here is unconscionable. We have concluded that it is not.
3 Plaintiff argues that the length of time between the collision and the execution of the release was too short to determine the extent of the injury. Yet, more than 3 1/2 months passed between the collision and the release. There was no pressure of time urged upon the plaintiff here, in contrast to the cases setting aside a release and emphasizing that it had been executed only a short time after the accident. Florkiewicz, 3 days; Smith v. Broscheid ...