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05/06/94 CAROLYN LEE SIMMONS v. RAYMOND K. BLAUW

May 6, 1994

CAROLYN LEE SIMMONS, PLAINTIFF-APPELLANT,
v.
RAYMOND K. BLAUW, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Paddy H. McNamara, Judge Presiding.

Giannis, McNAMARA, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Plaintiff brought this action seeking recovery for personal injuries allegedly sustained as a result of the negligent conduct of defendant. The trial court dismissed the cause, finding that plaintiff had relinquished the right to proceed against defendant when she entered into a settlement and executed a release of the claim. Plaintiff appeals the dismissal of her complaint, contending that the settlement and release were invalid because they were predicated upon a mutual mistake of fact as to the nature and extent of plaintiff's injuries.

The record reveals that plaintiff was involved in an automobile collision on August 24, 1990, when the vehicle driven by defendant struck the rear of plaintiff's vehicle. After the accident, plaintiff consulted her family doctor, Dr. Bryce Palchick. Palchick began treating plaintiff for a muscular strain in her back on August 29, 1990, five days after the accident. During the course of his treatment over the next three months, Palchick did not diagnose or discover a herniated disc in plaintiff's back. While under Palchick's care, plaintiff was treated with anti-inflammatory medication, muscle relaxants and physical therapy. Plaintiff also underwent physical therapy three times per week from September 24, 1990, to November 16, 1990.

On November 19, 1990, Palchick released plaintiff from his care for the injuries sustained in the automobile accident. Palchick saw plaintiff for unrelated medical problems on two separate occasions, December 20, 1990, and February 6, 1991, before she settled her claim.

On March 25, 1991, plaintiff executed the release discharging defendantfor any claims arising out of the automobile accident. In consideration for the release, plaintiff received $5,082, three times the amount of her medical expenses and lost wages, which totalled $1,693.73.

On May 6, 1991, plaintiff began to experience pain in her neck and left shoulder, but the pain subsided in the following weeks. On May 26, 1991, plaintiff experienced numbness in her arm, and she consulted Palchick approximately four weeks later on June 21, 1991. After an EMG examination, plaintiff was admitted to the hospital for spinal surgery.

In her affidavit filed in opposition to defendant's motion to dismiss, plaintiff asserted that when she signed the release, she believed that her injuries resulting from the automobile accident were healed and would not require further medical treatment. Plaintiff also asserted that after the surgery, her medical bills were over $15,000, and she had been unable to work for over two months.

Palchick asserted in his affidavit that he believed the trauma plaintiff received in the August 24, 1990, automobile accident was "correctly related" to the herniated disc for which she required surgery.

Plaintiff had retained an attorney, Joseph Dowd, to represent her in the negotiations for settlement of her claim against defendant. Dowd began settlement negotiations approximately one month prior to the execution of the release on March 25, 1991. In his affidavit, Dowd averred that he and "defendant's insurer" believed that plaintiff's injuries were "muscular in nature, non-permanent and that her condition had satisfactorily improved." Dowd also averred that soft-tissue injuries resulting from automobile accidents were typically settled for triple the amount of the plaintiff's special damages.

Plaintiff filed suit against defendant on April 30, 1992. The defendant moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure, based upon the settlement and release. In opposing defendant's motion, plaintiff asserted that the release had been executed under a mutual mistake of fact as to the nature and extent of her injuries. In support of this assertion, plaintiff filed her own affidavit along with that of Dowd and Palchick.

The trial court granted defendant's motion, and dismissed the complaint. In entering this ruling, the trial Judge relied upon the decision in Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791, 84 Ill. Dec. 654, and declined to follow the reasoning employed in Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878, 26 Ill. Dec. 48, which had been cited by plaintiff's counsel.

Plaintiff subsequently filed a motion for reconsideration which was denied by the trial court, ...


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