APPEAL from the Circuit Court of Cook County; the Hon. IRWIN
COHEN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Plaintiff, a judgment creditor, brought this garnishment proceeding against Safeway Insurance Co. (Safeway), insurer of the judgment debtor Marvin O. Sparks. On appeal, she contends that the judgment entered in her favor was less than it should have been, and the issue presented for review is whether the trial court erred in concluding that Safeway's obligation to make a tender in discharge of its contractual liability under the policy was excused and its liability for post-judgment interest therefore terminated.
On June 26, 1975, plaintiff obtained a judgment against Sparks in the amount of $125,000 plus costs in a wrongful death action arising from a collision of motor vehicles. Sparks was covered by an insurance policy issued by Safeway, whose exposure was limited to $10,000 per person. The policy also provided for the following supplementary payments:
"(a) all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company's liability thereon."
It appears that on June 27, 1975, the day after entry of judgment, Alvin Becker (attorney for Safeway) telephoned Marshall LeSueur (who represented plaintiff) to discuss the payment of Safeway's obligation under its policy. No agreement was reached at that time, and plaintiff ultimately commenced a proceeding under "An act in regard to Garnishment * * *" (Ill. Rev. Stat. 1977, ch. 62, par. 33 et seq.), seeking to have Safeway's obligations under the policy applied to the judgment debt. It is the position of plaintiff that under the supplementary payments provision of the policy in question, Safeway was obligated to pay interest on the full amount of the judgment until it paid, tendered, or deposited in court the full amount of its liability under the policy and, because it had not made such payment, tender, or deposit, it was liable for interest on the full amount of the judgment. Safeway maintains, however, that its obligation to pay interest on the full amount of the judgment was terminated because, in the telephone conversation of June 27, plaintiff's attorney excused tender.
At the garnishment hearing, Becker and LeSueur were the only persons testifying, and their testimony centered around the June 27 telephone conversation. Becker stated that prior to making the call, he told Safeway's claims manager to prepare a check and obliterate the words "in full release and satisfaction" and substitute "in partial payment"; that he then telephoned LeSueur and explained that he had ordered a check in the amount of $10,000 plus $40.84 court costs and $25 representing interest on the entire judgment for one day; that LeSueur expressed the belief that plaintiff had a valid claim for the entire $125,000 judgment because of negligence or bad faith on the part of Safeway and that he would not under any circumstances accept the check suggested by Becker; that he (Becker) told LeSueur that the words "in full release and satisfaction" would be obliterated from the face of the check; that LeSueur repeated that he would not accept a check; and that he (Becker) then notified Safeway's claims manager not to have the check delivered. To the contrary, while acknowledging the telephone conversation of June 27, LeSueur denied that Becker said the Safeway draft was in partial payment and stated that Becker told him it was in full settlement, release and satisfaction of the judgment.
A letter dated June 30, 1975, which Becker testified he sent to LeSueur, was admitted into evidence and reads as follows:
Conforming [sic] our telephone conversation of June 27, 1975, whereby as attorney for the Safeway Insurance Co., the insurer of Mr. Sparks, defendant in the above captioned case, I offer to you payable instanter the draft of Safeway Insurance Co., in the sum of $10,025 plus all court costs recoverable upon the judgment entered June 26, 1975, which the docket reflects as $40.84.
This tender was made to you in the principal sum of $10,000 plus interest at 6% on $150,000 *fn1 for one day in that as you know, the limits of liability of the Safeway policy is $10,000 per person. Since you advised me that this was not acceptable to you, nor would you accept the same as partial satisfaction of the aforementioned judgment, this letter will also confirm the above mentioned tender is available to you at all times and this letter will confirm that the same will be delivered to you upon you [sic] demand with but four hours notice.
Very truly yours, Alvin R. Becker."
LeSueur admitted he received but made no response to the letter, and it was agreed that there was no subsequent communication between the attorneys concerning Becker's offer. At the conclusion of the hearing, Safeway agreed to pay plaintiff instanter the amount it conceded was due, and an order was entered permitting it to do so without prejudice to plaintiff's possible right to further interest. Subsequently, after receiving memoranda from the parties, the trial court held that plaintiff was entitled to no further interest, finding:
"1. That an offer of tender to Plaintiff's attorney of Garnishee's liability under the contract of insurance plus interest and costs, was made by Garnishee and was refused by Plaintiff's attorney.
2. That the Plaintiff's refusal to accept the same as tendered and any forwarding of the amount would have ...