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12/30/88 Esida Yassin, A Minor By v. Certified Grocers of

December 30, 1988

FRIEND, PLAINTIFF-APPELLANT

v.

CERTIFIED GROCERS OF ILLINOIS, INC., ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (ZURICH AMERICAN INSURANCE COMPANY ET AL., GARNISHEES AND DEFENDANTS AND, APPELLEES-CROSS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

ESIDA YASSIN, a Minor by Sofia Yassin, her Mother and Next

533 N.E.2d 495, 178 Ill. App. 3d 498, 127 Ill. Dec. 623 1988.IL.1929

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.

APPELLATE Judges:

JUSTICE EGAN delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

This case is a sequel to Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 502 N.E.2d 315. The minor plaintiff appealed a $300,000 judgment in her favor and against Mizyed-Yassin Corporation, in part, on the ground that the award was inadequate. We affirmed, and the supreme court denied leave to appeal. Upon the return of the mandate on May 6, 1987, the plaintiff filed garnishment proceedings against the defendants, Zurich American Insurance Company and American Guarantee Insurance Company. The only asset of Mizyed-Yassin was a policy of insurance with the garnishee defendants with a $300,000 coverage limit. The defendants had paid the mother of the plaintiff $8,000 in satisfaction of the judgment in her favor for medical expenses. The garnishment action was transferred to Judge Thomas Janczy, who had conducted the personal injury trial.

On May 13, 1987, the defendants filed a motion to tender judgment and offered to pay the sum of $293,196, representing the remaining policy limits of $292,739, interest on $300,000 from April 20, 1987, the date the supreme court denied leave to appeal, to April 30, 1987, and $456 representing costs which had been assessed by the court on December 16, 1983.

On June 10, 1987, the plaintiff filed a response to the motion to tender, alleging that the defendants had not made a proper tender as required by the statute and that the total sum due included in excess of $97,000 representing interest from the date of the judgment, October 29, 1983. At the same time the plaintiff filed a countermotion claiming that the defendants had been guilty of unreasonable and vexatious delay in payment and sought relief under the Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767); that the court should assess additional interest under the Interest Act (Ill. Rev. Stat. 1985, ch. 17, par. 6402); and that the court should impose sanctions against the defendants under the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611).

After a hearing, Judge Janczy held that the defendants were obliged to pay interest from the date of the judgment totaling over $100,000, rather than from the date the supreme court denied the petition for leave to appeal. He also denied all of the relief sought by the plaintiff in her countermotion. The plaintiff has appealed from the order denying her countermotion; and the defendants have cross-appealed from the order requiring them to pay statutory interest from the date of the judgment. We will address the cross-appeal first.

The governing statute in issue provides as follows (Ill. Rev. Stat. 1985, ch. 110, par. 2-1303):

"Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied . . .. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment." (Emphasis added.)

The statute was construed in Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 202 N.E.2d 512. The issue in that case was whether or not an appealing judgment creditor was entitled to interest on the judgment during the period of his appeal. The court first held that an appealing creditor was entitled to statutory interest during the appeal period in the absence of tender and added that a valid tender must include the judgment, plus costs and interest on the judgment. Pinkstaff, 31 Ill. 2d at 526.

The defendants argue that they repeatedly attempted to pay the policy limits, and in support, refer to four purported tenders, one before judgment and three after. At the outset, we hold that any purported tender before judgment is not relevant to this cross-appeal. The issue is whether the purported tenders after judgment were legally sufficient. The defendants contend that the post-judgment "tenders" occurred on November 28, 1983, January 31, 1984, and December 16, 1986.

The thrust of the pleadings filed November 28, 1983, was to strike part of the judgment order relating to costs. In that pleading the attorneys for Mizyed-Yassin, who are now the attorneys for the garnishees-defendants, stated that in March 1983 the policy limits were tendered to the plaintiff, that the tender had been rejected and that the tender remained open. The motion made no offer to pay interest.

On January 26, 1984, the defendants' attorneys filed a motion for direction and to interplead. That motion alleged, in part, that an offer in settlement and/or satisfaction of judgment had been made on behalf of Mizyed-Yassin by its insurance carrier, the defendant, Zurich American Insurance Company, and that the offer was in the amount of the complete liability coverage carried by Mizyed-Yassin. The motion asked for an order denying the payment of interest on either of the judgments in light of the "tender" referred to. It also asked the court to allow the tender of the entire $300,000 policy limits with the clerk of the court "along with the costs in the sum as previously stated" and to declare that no interest on the judgments was due and owing by the defendant.

A hearing was conducted on that motion on January 31, 1984. The motion, it should be pointed out, requested other forms of relief. After colloquy between the court and various counsel on certain other aspects of the motion the following occurred:

"DEFENDANTS' ATTORNEY: There is a second part to that, Your Honor, if I may.

THE COURT: Yes.

DEFENDANTS' ATTORNEY: We take the position, and we are asking this court to rule on it, this court knows in open court we tendered every bit of money available in March of 1983. Now, we feel in that circumstance where the cast is holding a full tender, and in this case it is a full tender in the exact amount, waives any interest. We are asking the court to hold there is not interest on this judgment or on the other judgment. I have cited to the Court cases in the memorandum relative to costs on that issue.

THE COURT: Well, I have trouble following that, Counsel. I can't understand why you didn't make the payment right after the decision of the Jury., DEFENDANTS' ATTORNEY: We have always tendered the money. We could have paid it the next day if he would have accepted it.

PLAINTIFF'S ATTORNEY: Your Honor, we take exception to that. We would have accepted payment at any time. We demand payment now, and we will take payment as of the moment the defendants are ready, willing and able to pay., DEFENDANTS' ATTORNEY: We have been ready, willing and able to pay since March of 1983.

PLAINTIFF'S ATTORNEY: You have been ready, willing and able to pay $300,000 on the covenant not to sue the Mizyed-Yassin Corporation [and other defendants]. The court's verdict was substantially different than the covenant not to sue that was offered. In any case, that has no relevance to the question of post-judgment interest, which is all we are discussing right ...


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