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Brown v. Timpte Inc.

OPINION FILED NOVEMBER 1, 1985.

PAMELA BROWN, PLAINTIFF-APPELLANT,

v.

TIMPTE INCORPORATED ET AL., DEFENDANTS-APPELLEES (KROBLIN REFRIGERATED EXPRESS, INC., ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:

Plaintiff, Pamela Brown, was a passenger in a semitractor driven by defendant William Haines. The semitractor was hauling a trailer manufactured by defendant Timpte Incorporated (Timpte). The trailer and semitractor were owned by defendant Kroblin Refrigerated Express, Inc. (Kroblin). The trailer was loaded with 36,000 pounds of meat, hung from hooks by defendant Rath Packing Company (Rath). The semitractor and trailer turned over and fell on the passenger side while traveling through a curve. Plaintiff was injured. Her injuries necessitated amputation of her right leg and her left leg below the knee.

Plaintiff's causes of action against defendants were under strict liability and negligence theories. Plaintiff alleged that the trailer was dangerous because it was designed with a high center of gravity and was unstable with certain loads. Plaintiff further alleged that the meat was loaded in the trailer in such a way that it swung so high from side to side that it pulled the trailer over when the trailer traveled even under the speed limit.

At trial, the driver Haines testified that he felt the truck and trailer pull to the right just before he entered the curve. A witness to the accident, John York, testified that the truck drove straight off the road without following the curve. The jury returned a $2.1 million verdict against defendants Kroblin and Haines and a verdict that defendants Timpte and Rath were not negligent. Judgments were entered on the jury verdicts.

Nearly four months later, plaintiff entered into a covenant not to sue Kroblin and Haines and accepted payment from them in the amount of $1,875,000. The covenant not to sue, in pertinent part, was as follows:

"I, Pamela Brown * * * in consideration of the sum of one million eight hundred seventy five thousand dollars to be paid by Kroblin Refrigerated Express, Inc., William Haines, Katlo Contractors, Inc. and Great West Casualty Company the receipt of which is hereby acknowledged, do by this instrument covenant with said Kroblin Refrigerated Express, Inc., William Haines, Katlo Contractors, Inc. and Great West Casualty Company to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action, for damages, cost[s], loss of service, expenses or compensation for, on account of, or in any way growing out of, or hereafter to grow out of an accident which happened to me, Pamela Brown * * * whereby I sustained personal injuries and other damages and for the above consideration I hereby agree to hold the said Korblin Refrigerated Express, Inc., William Haines, Katlo Contractors, Inc. and Great West Casualty Company harmless from any damages to myself resulting from said accident."

The trial court thereafter set aside the jury verdict against Haines and Kroblin and entered an order on March 25, 1982, which stated, in pertinent part:

"That part of the order of February 26, 1982 denying the defendants' post-trial motion be and is hereby vacated and set aside;

The judgment order of November 25, 1981 entering judgment in favor of plaintiff and against [Kroblin and Haines] be and is hereby set aside and held for naught; and

So much of the verdict of the jury entered November 25, 1981 as found against said defendants * * * and as assessed Pamela Brown's damages in the amount of $2,100,000 be and is hereby set aside and held for naught.

It is further ordered, by virtue of the compromise settlement between said parties, that the Complaint of the plaintiff, Pamela Brown, against said defendants be and is hereby dismissed with prejudice.

It is further ordered that the orders of this Court dated February 26, 1982 and November 25, 1981 *fn1 as they relate to the plaintiff's case against defendants Rath Packing Company and Timpte Incorporated remain in full force and effect, and the Complaint of the plaintiff against defendants Rath Packing Company and Timpte Incorporated remains in full force and effect."

Plaintiff appeals the verdict of not guilty in favor of defendants Timpte and Rath and cites five alleged trial errors she contends deprived her of a fair trial. In rebuttal, defendants Timpte and Rath assert that plaintiff's appeal should be dismissed because plaintiff accepted payment from defendants Kroblin and Haines in satisfaction of the judgment against them and that by so doing, plaintiff discharged defendants Timpte and Rath from liability. Thus, Timpte and Rath assert, any further proceedings should be dismissed. Timpte and Rath filed a motion to dismiss this appeal, which we have taken with the case. The dispositive issue presented by this appeal, therefore, is whether the instrument executed by plaintiff, the covenant not to sue defendants Kroblin and Haines, plaintiff's acceptance of payment from Kroblin and Haines and the trial court's subsequent setting aside of the judgment against Kroblin and Haines, served to also discharge Timpte and Rath from liability to plaintiff. We think not.

• 1 Whether a document is construed as a release, an accord and satisfaction or a covenant not to sue depends upon the words used, the amount paid, the substance of the agreement and the intention of the parties. (Hulke v. International Manufacturing Co. (1957), 14 Ill. App.2d 5, 24-25, 142 N.E.2d 717.) Courts have held that the intention of the parties is controlling. Pate v. City of Sesser (1979), 75 Ill. App.3d 233, 237, 393 N.E.2d 1146.

• 2 A covenant not to sue one tortfeasor does not have the same legal effect on the liability of other tortfeasors who are not parties to the covenant. A covenant not to sue one of several joint tortfeasors does not automatically release the others (31 Ill. L. & Prac. Releases sec. 28 (1957); Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1973), 10 Ill. App.3d 465, 470, 294 N.E.2d 319, aff'd in part, rev'd in part (1974), 57 Ill.2d 298, 312 N.E.2d 259) but affects only the right to bring suit and not the cause of action itself. (Pate v. City of Sesser (1979), 75 Ill. App.3d 233, 237, 393 N.E.2d 1146; Hitchcock Air Conditioning, Heating & Piping Co. v. Hazen (1976), 43 Ill. App.3d 483, 487-88, 357 N.E.2d 69.) A person is only entitled to one full compensation for his injuries, however, and amounts paid by one or more of the joint tortfeasors either before or after judgment are applied to reduce the amount of damages recoverable from those tortfeasors remaining as defendants in the suit. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill.2d 203, 209, 412 N.E.2d 518; Schutt v. Allstate Insurance Co. (1985), 135 Ill. App.3d 136, 140.) Double recovery for the same injury is to be condemned. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill.2d 203, 209; Schutt v. Allstate Insurance Co. (1985), 135 Ill. App.3d 136, 140.) A plaintiff can have only one satisfaction for an injury. (Dial v. City of O'Fallon (1980), 81 Ill.2d 548, 558, 411 N.E.2d 217.) In this regard, the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 302(c)) provides:

"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 is 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."

In the same tenor as the aforementioned statute is the Restatement (Second) of the Law of Torts sec. 885(1) (1979), and Comment (d) thereto, which state:

"(1) A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others liable for the same harm, unless ...


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