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06/10/88 Gibson Schoonover, v. Ional Harvester Company

June 10, 1988

GIBSON SCHOONOVER, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

INTERNATIONAL HARVESTER COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

525 N.E.2d 1041, 171 Ill. App. 3d 882, 121 Ill. Dec. 734 1988.IL.917

Appeal from the Circuit Court of Cook County; the Hon. Cornelius F. Dore, Judge, presiding.

APPELLATE Judges:

JUSTICE SULLIVAN delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

This is an appeal and cross-appeal from the denial of certain post-trial motions following a jury award of $50,000 in a strict products liability action.

Plaintiff was allegedly injured when a step came loose while he was descending from the cab of his tractor-trailer truck. He filed a strict products liability action against defendants, International Harvester, the truck manufacturer, and Hertz Corporation, the truck owner, which altered the step prior to the occurrence. Hertz thereafter filed a third-party action against Celotex Corporation, plaintiff's employer.

Several months before trial, Hertz and Celotex were dismissed from the case with prejudice after entering into a loan receipt agreement with plaintiff whereby they jointly loaned plaintiff $300,000, which was repayable solely from any amounts recovered against the remaining defendant, International Harvester. The loan agreement expressly provided that in the event plaintiff's recovery from International Harvester was less than $300,000, the excess amount of the loan would be forgiven.

In its post-trial motion International Harvester sought to have the forgiven amount of the loan (a minimum of $250,000) set off against the $50,000 jury award. In the alternative, it moved for judgment notwithstanding the verdict, for a new trial on liability only or for a new trial on all issues. In his post-trial motion plaintiff sought a new trial on the issue of damages only. The trial court denied all motions and both parties have appealed.

Defendant initially contends that the court erred in denying its post-trial motion to have the forgiven loan amount set off against the $50,000 jury award. We agree.

At common law, amounts paid by "one or more of the joint tortfeasors are to be applied in reduction of the damages recoverable from those remaining in the suit." (New York, Chicago & St. Louis R.R. Co. v. American Transit Lines, Inc. (1951), 408 Ill. 336, 342, 97 N.E.2d 264.) The common law rule against double recovery has been codified in section 2(c) of the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 302(c)), which provides in relevant part:

"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 . . . 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."

This rule has been consistently applied, even where the jury's verdict is thereby reduced to zero because the amount paid for the release or the covenant not to sue exceeds the jury's award. See, e.g., Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, 495 N.E.2d 630; Price v. Wabash R.R. Co. (1961), 30 Ill. App. 2d 115, 174 N.E.2d 5; De Lude v. Rimek (1953), 351 Ill. App. 466, 115 N.E.2d 561.

There is no inequity to plaintiff in these circumstances because the purpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish the defendant or bestow a windfall upon the plaintiff. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 363, 392 N.E.2d 1.) An injured person is entitled to one full compensation for his injuries, and a double recovery for the same injury is against public policy. (Eberle v. Brenner (1987), 153 Ill. App. 3d 700, 702, 505 N.E.2d 691, citing Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 412 N.E.2d 518.) ...


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