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Kooyenga v. Hertz Equipment Rentals

OPINION FILED DECEMBER 26, 1979.

ROBERT ALLEN KOOYENGA, PLAINTIFF,

v.

HERTZ EQUIPMENT RENTALS, INC., ET AL., DEFENDANTS. — (THOMAS LEAHY ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLEES,

v.

CHARLES J. FEBEL, INC., THIRD-PARTY DEFENDANT-APPELLANT — (BITUMINOUS CASUALTY CORPORATION, GARNISHEE-APPELLANT).)



APPEAL from the Circuit Court of Cook County; the Hon. IRWIN COHEN and the Hon. WILLIAM F. PATTERSON, Judges, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This appeal involves three consolidated cases arising out of a suit brought in the circuit court of Cook County under the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60 through 69) by Robert Allen Kooyenga (Kooyenga) against Thomas Leahy and Leahy Home Building Co., Inc. (Leahy), to recover damages for injuries Kooyenga sustained when he fell from a scaffold. Leahy was the general contractor and owner of the premises where Kooyenga fell. Leahy filed a third-party complaint against Charles J. Febel, Inc. (Febel), the subcontractor and Kooyenga's employer, on the theory of active-passive negligence. Both actions were jointly tried before a jury. The jury returned a verdict in favor of Kooyenga against Leahy in the sum of $1,578,000 and a verdict in favor of Leahy against Febel entitling Leahy to reimbursement from Febel.

The record contains a copy of a page as it appears in the law record book, the book in which the clerk's office transcribes the pronouncements of judgments and on which the clerk's office relies in making up the record on appeal. *fn1 This document as it appears in the record bears the date of January 3, 1977, and recites both verdicts rendered by the jury and the judgment rendered by the court in favor of Kooyenga against Leahy in the sum of $1,578,000, together with costs and charges expended in his behalf and execution therefor. No judgment corresponding to the jury verdict rendered against Febel in favor of Leahy is recorded on this document.

On January 28, 1977, Febel filed a post-trial motion for judgment notwithstanding the verdict, or in the alternative for a new trial or a remittitur of damages, alleging that the jury verdicts rendered against both Leahy and Febel were incorrect and that substantial errors prejudicial to Febel were committed during the trial. Three days later Febel filed a supplemental post-trial motion asking for discovery as to whether there was any agreement prior to verdict and judgment whereby Kooyenga, Leahy, and Leahy's insurer or their attorneys agreed not to satisfy the judgment against Leahy or take execution thereon or garnish the insurance proceeds.

On May 12, 1977, the trial court denied all post-trial motions. This order was initialed by the attorneys involved in the case, including the attorney representing Febel. On this same date, the trial court set appeal bonds for both Leahy and Febel at $2,000,000 each. This order was initialed by Kooyenga's attorney and Febel's attorney.

Thereafter, Kooyenga, Leahy, and Febel filed suit against Bituminous Casualty Corporation (Bituminous), Febel's insurer, seeking recovery of $1,100,000, the face amount of two casualty insurance policies issued by Bituminous to Febel. Febel also sought recovery of the amount of the judgment in excess of its insurance proceeds alleging that Bituminous' refusal to settle the case was made in bad faith. Bituminous filed a motion to dismiss alleging that no judgment had been rendered on the verdict in favor of Leahy against Febel.

On April 25, 1978, Leahy filed a motion requesting the court to enter judgment nunc pro tunc as of December 30, 1976, on the jury verdict in favor of Leahy against Febel in the amount of $1,578,000. In this motion, Leahy alleged that the clerk of the court inadvertently failed to enter the judgment on the verdict in favor of Leahy against Febel; that all of the parties understood that judgment had been entered on that verdict and acted accordingly; and that by letter dated June 8, 1977, Febel was informed by his insurer, Bituminous, that time for filing a notice of appeal would expire on June 11, 1977, thereby acknowledging that a final judgment had been entered and became appealable on May 12, 1977, the date all post-trial motions were denied.

At the hearing held on this motion, Febel argued that judgment upon the verdict in favor of Leahy against Febel could not be entered until Leahy had made some payment to Kooyenga in satisfaction of the judgment entered against it because without such payment by Leahy, there was no basis for reimbursement and Febel's obligation to indemnify Leahy existed only as a contingent debt.

Finding that the clerk inadvertently failed to enter judgment on the verdict returned in favor of Leahy against Febel, the trial court, on April 25, 1978, granted Leahy's motion and entered judgment on the verdict nunc pro tunc as of January 3, 1977, in the amount of $1,578,000 in favor of Leahy against Febel. On May 23, 1978, Febel filed a notice of appeal from this judgment. That appeal is case No. 78-1239.

Subsequent to the filing of Febel's appeal, Kooyenga served a writ of execution on Leahy for collection of his judgment which was returned unsatisfied. Leahy then served a writ of execution on Febel. Febel filed a motion to quash Leahy's writ alleging that Leahy could not execute on Febel's assets until Leahy satisfied Kooyenga's judgment. On August 15, 1978, the trial court denied Febel's motion to quash from which Febel filed a second appeal, case No. 78-1740.

On August 21, 1978, while Febel's consolidated appeals were pending before this court, Leahy instituted nonwage garnishment proceedings against Bituminous seeking to recover the combined limits of the two casualty insurance policies issued by Bituminous to Febel. In its answer to the garnishment interrogatories, Bituminous stated that it had issued two policies insuring Febel in the amount of $1,100,000, but that its obligation to pay on the policies was contingent on the final determination to be made on Febel's appeal from the judgment entered against Febel in favor of Leahy. On December 19, 1978, the trial court granted Leahy's motion to strike Bituminous' amended answers to the garnishment interrogatories and entered judgment in favor of Leahy against Bituminous in the sum of $1,100,000. In case No. 79-414, Bituminous appeals from this judgment.

I.

We first consider the appeal in case No. 78-1239 as we deem its resolution to be determinative of the position we must take in regard to the issues ...


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