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Casciola v. Gardner

OPINION FILED OCTOBER 26, 1981.

GRAZIELLA CASCIOLA, PLAINTIFF-APPELLANT,

v.

SAMUEL C. GARDNER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 14, 1981.

Graziella Casciola (plaintiff) obtained a judgment against Samuel Gardner (defendant) for $25,000. Defendant was insured by the Kenilworth Insurance Company (Kenilworth) with a policy limit of $10,000. A dispute arose between plaintiff and Kenilworth as to the amount due plaintiff under the policy. This court taxed costs of $363.85 against defendant. On September 25, 1980, the trial court entered an order taxing circuit court costs of $1328.83 and fixing the rate of interest on the judgment at 8 percent by agreement of the parties. On October 14, 1980, after a further hearing, the trial court fixed interest in the amount of $23.40 representing interest for four days on the entire judgment. Plaintiff has appealed from this latter order.

The genesis of the judgment against defendant is set forth in Casciola v. Gardner (1980), 86 Ill. App.3d 880, 408 N.E.2d 965. This first appeal to this court followed a judgment for plaintiff of $25,000 entered August 3, 1979, and involved the subsequent granting of a new trial to defendant.

It is undisputed that the policy required Kenilworth to pay a prevailing plaintiff's court costs plus interest "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."

On August 6, 1979, counsel for Kenilworth telephoned counsel for plaintiff and offered to pay the $10,000 policy limit, interest on the judgment, and "costs." Counsel for plaintiff refused to accept this payment and filed an action in garnishment against Kenilworth on August 14, 1979.

On October 30, 1979, counsel for Kenilworth sent a letter to counsel for plaintiff which stated in part:

"This will also serve to confirm our conversation today in which you reiterated your position, expressed on the phone to me on August 6, 1979, that you would not accept Kenilworth's obligation to defendant, Samuel Gardner, under his insurance policy with Kenilworth either as a satisfaction of the judgment or a partial satisfaction of the judgment to the extent of Kenilworth's obligation.

This letter will serve to confirm Kenilworth's position that it will pay the sum of $10,000 plus the court costs and interest on the judgment from August 3, 1979 to August 6, 1979, and stands ready to make this payment at any time you request as partial satisfaction of the judgment entered on August 3, 1979."

On November 26, 1979, in another letter to plaintiff's attorney, counsel for Kenilworth reiterated its offer to pay plaintiff the $10,000 policy limit plus costs and interest as follows:

"This is to inform you that Kenilworth Insurance Company has directed me to reaffirm its position as outlined in my letter of October 30, 1979. Kenilworth will still pay $10,000.00, the limit of the policy it issued to defendant, Samuel C. Gardner, plus court costs, plus interest on the judgment from August 3, 1979 to August 6, 1979, either as full settlement of your client's claim against Samuel Gardner or as partial satisfaction of said claim.

Kenilworth Insurance Company stands ready to make the above payment at any time such a request is received from you."

On August 15, 1980, the trial court reinstated the judgment for plaintiff. This was done in accordance with the previous opinion of this court published on July 14, 1980. Pursuant to a telephone conversation, counsel for plaintiff wrote to Kenilworth on August 26, 1980. This letter confirmed plaintiff's acceptance of the $10,000 offered by Kenilworth as partial satisfaction of the judgment. Counsel for plaintiff also enclosed an itemized list of the trial court costs claimed by plaintiff plus appellate court costs and interest.

On August 29, 1980, Kenilworth informed counsel for plaintiff it disputed the court costs thus claimed. The parties could not resolve this dispute, and Kenilworth petitioned the trial court for resolution. This resulted in the order concerning costs ...


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