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Mccomb v. Seestadt

OPINION FILED FEBRUARY 17, 1981.

RUSSELL MCCOMB, PLAINTIFF-APPELLANT,

v.

STARR SEESTADT, DEFENDANT-APPELLEE. — (EDWARD JURACKA, DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

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. *fn1 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." *fn2 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.

• 1 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 (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. (1976), 43 Ill. App.3d 35, 37, 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 (1979), 70 Ill. App.3d 106, 111, 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.) 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.

• 2 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 (1979), 70 Ill. App.3d 106, 112, 387 N.E.2d 878; Ruggles v. Selby (1960), 25 Ill. App.2d 1, 165 N.E.2d 733; and Clancy v. Pacenti (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. (1976), 43 Ill. App.3d 35, 38, 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 (1979), 70 Ill. App.3d 939, 388 N.E.2d 1268; see also Kiest v. Schrawder (1978), 56 Ill. App.3d 732, 372 N.E.2d 442.

Nor do the facts indicate that the casualty adjuster Hertko pressured plaintiff into settling. *fn3 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 (1976), 38 Ill. App.3d 115, 347 N.E.2d 401 (release executed three days after accident); Smith v. Broscheid (1964), 46 Ill. App.2d 117, 196 N.E.2d 380 (release executed two weeks after accident); Fraser v. Glass (1941), 311 Ill. App. 336, 35 N.E.2d 953 ...


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