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Trexler v. Hubbard

OPINION FILED OCTOBER 13, 1983.

MICHAEL KENT TREXLER, A DISABLED ADULT BY HIS FATHER AND GUARDIAN, LARRY EUGENE TREXLER, PLAINTIFF-APPELLANT,

v.

JOHN L. HUBBARD, M.D., ET AL., DEFENDANTS-APPELLEES. — MICHAEL KENT TREXLER, A DISABLED ADULT, BY HIS FATHER AND GUARDIAN, LARRY EUGENE TREXLER, PLAINTIFF-APPELLANT,

v.

CHRYSLER CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Macon County; the Hon. Donald W. Morthland, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On December 21, 1981, plaintiff, Michael Kent Trexler, brought two suits in the circuit court of Macon County. The suits arose from an occurrence on October 15, 1978, when a van in which plaintiff was riding overturned causing him severe injuries. Plaintiff sought recovery for those injuries. One suit was against defendant, Chrysler Corporation, manufacturer of the van. The tort of defective product was charged. The other suit was against the providers of medical services. They were charged with negligence in treating plaintiff for injuries he received when the van overturned. The circuit court entered summary judgments in favor of Chrysler on March 29, 1983, in one case and judgments on motions to dismiss in favor of the other defendants in September and October 1982 in the other case. Plaintiff has appealed all judgments. The cases have been consolidated on appeal.

The above judgments were based on a release given by Larry Eugene Trexler as guardian for plaintiff pursuant to appointment by the circuit court of Fayette County. The release stated it released Timothy Clayton, the driver of the van, certain named insurance companies "and all other persons, firms, corporations, associations or partnerships" from claims which "now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries * * * and the consequences thereof resulting" from the occurrence when the van turned over. The release did not mention any of the defendants by name.

In asserting that the trial court erred in granting the above judgments based on the release, plaintiff contends: (1) The release was void because, in executing it, the guardian exceeded the authority granted him by the circuit court of Fayette County; (2) granting judgment was improper because plaintiff should have been permitted to show by parol that the parties to the release did not intend to release defendants; (3) the release did not release any party as to any medical malpractice which had not been discovered by plaintiff by the time the release was executed.

All causes of action alleged here arose after March 1, 1978. Accordingly, by the terms of section 1 of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1981, ch. 70, par. 301), the Act is applicable to the matters alleged here. Section 2 of the Act states:

"Right of Contribution. (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.

(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.

(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.

(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.

(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.

(f) Anyone who, by payment, has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full his obligation to the tortfeasor, is subrogated to the tortfeasor's right of contribution. This provision does not affect any right of contribution nor any right of subrogation arising from any other relationship." (Ill. Rev. Stat. 1981, ch. 70, par. 302.)

This legislation bears upon each decision we must make.

• 1 Section 2(c) of the Act changes the law by providing that a release given in good faith to one of several persons liable "in tort arising out of the same injury" releases only the person or entity to whom the release is granted unless the terms of the release provide for the release of others. Previously, the release of one person, liable in the foregoing manner, released all others liable in tort arising from the same injury unless rights against others were expressly reserved. (Porter v. Ford Motor Co. (1983), 96 Ill.2d 190, 449 N.E.2d 827.) Under prior law a mere release of Clayton by the guardian would have released all of the defendants. Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App.3d 407, 398 N.E.2d 611.

The provision of the release purporting to discharge "all other persons, firms, corporations, associations or partnerships" was broad enough to include all defendants. However, plaintiff maintains that its breadth exceeded the authority granted the guardian by the circuit court of ...


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