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12/29/89 Carol Jean Melzer, Indiv. v. Bausch & Lomb

December 29, 1989

CAROL JEAN MELZER, INDI

v.

AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFF,

v.

BAUSCH & LOMB, INC., ET AL., DEFENDANTS (BAUSCH & LOMB, INC., COUNTERPLAINTIFF-APPELLANT; UHLEMANN OPTICAL



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

Company of Illinois, Counterdefendant-Appellee)

549 N.E.2d 817, 193 Ill. App. 3d 59, 140 Ill. Dec. 166 1989.IL.2069

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and CERDA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Counterplaintiff-appellant, Bausch and Lomb, Inc. (Bausch & Lomb), appeals from an order of the circuit court which found that the settlement agreement entered into between plaintiff, Carol Melzer (Melzer), and counterdefendant-appellee, Uhlemann Optical Company (Uhlemann), was made in good faith within the meaning of section 2(c) of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)). We affirm.

On August 3, 1984, Melzer purchased extended-wear contact lenses from Uhlemann. The extended-wear lenses were designed and manufactured by Bausch & Lomb and prescribed by Dr. Aron Katz to be worn continuously for up to 30 days without removal. Following use of the lenses, Melzer developed a corneal ulcer in her right eye.

In August 1985, Melzer filed a complaint against Bausch & Lomb, Uhlemann and Dr. Katz seeking damages for injuries sustained as a result of wearing the extended-wear contact lenses. In December 1985, Melzer amended her complaint to add a class action count against Bausch & Lomb. In June 1986, Bausch & Lomb filed a counterclaim for contribution and indemnity against Uhlemann. Bausch & Lomb moved to dismiss the class action count of the complaint, and its motion was granted. Melzer thereafter filed a second-amended complaint, and Bausch & Lomb again moved to dismiss the class action count. Uhlemann also filed a motion to dismiss the complaint for failure to state a cause of action against it.

Prior to the hearing on Uhlemann's motion to dismiss, Melzer and Uhlemann entered into a settlement agreement. In exchange for a cash payment of $13,500, Melzer agreed to release Uhlemann from all liability for injuries sustained as a result of wearing the extended-wear contact lenses. On March 30, 1988, Uhlemann filed a motion for a finding of good-faith settlement pursuant to section 2(c) of the Contribution Act. Bausch & Lomb objected, and a hearing was conducted.

Bausch & Lomb filed a memorandum, and following oral argument, the trial court found that the parties' settlement agreement was made in good faith. This appeal followed.

On appeal, Bausch & Lomb argues that the trial court erred in finding that the settlement agreement between Melzer and Uhlemann was made in good faith and in failing to hold an evidentiary hearing on the issue. We disagree.

Section 2 of the Contribution Act provides in relevant part:

"(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 ...


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