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June 6, 1996

EMIL G. WISCH, Plaintiff,

The opinion of the court was delivered by: DENLOW


 Plaintiff Emil G. Wisch ("Wisch") brought this action under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12117 et. seq. Wisch alleges that defendant Whirlpool Corporation ("Whirlpool") violated the ADA, following a short term disability leave by Wisch, by failing to allow him to return to work as a service technician or alternatively, by failing to allow Wisch to return to work in a sedentery position. Whirlpool denied the allegations and a jury trial was set for Monday, May 20, 1996, at 10:15 a.m.

 At the final pretrial conference held on May 14, Whirlpool's counsel advised Wisch's counsel and the court that it had just learned that Wisch had executed a release in connection with the resolution of a worker's compensation claim, which it believed might also bar the ADA claim. Whirlpool's counsel stated that he had not yet seen the release but would present a motion to add an additional affirmative defense as soon as a copy of the document was obtained. The court advised the parties that the jury trial would proceed as scheduled.

 On May 20, at the court's 9:30 a.m. motion call, Whirlpool presented its Motion for Leave to File a Supplemental Affirmative Defense Instanter pursuant to Fed.R.Civ.P. 15(a). Wisch did not object to the filing of the Supplemental Affirmative Defense, and the parties agreed that the issue of the release would be decided by the court, without a jury.

 The jury trial commenced on May 20, and the jury was instructed and began its deliberations on the afternoon of May 22. After the jury began its deliberations, the court commenced a bench trial on the issue of the release in a separate courtroom so as to avoid any possible contact with the jury. During the bench trial, the court received a note stating that the jury had reached a verdict. The court recessed the bench trial to receive the jury's verdict. The jury found in favor of Whirlpool and judgment was entered on the verdict.

 The jury's verdict did not moot the release issue. Wisch requested the court to decide the release issue because count II of Wisch's complaint had previously been dismissed. *fn1" In the event of a possible appeal, Wisch desires to have all issues resolved at one time. The court agrees that this makes sense in order to avoid piecemeal appeals. As a result, the court concluded the evidentiary hearing on the release issue following receipt of the jury's verdict. This memorandum opinion and order is prepared pursuant to Fed.R.Civ.P. 52.


 Three witnesses testified at the trial of the release issue: Attorney Jeanmarie Calcagno for Whirlpool and Emil G. Wisch and attorney Richard Alan Slovin for Wisch. Because this issue constitutes an affirmative defense, Whirlpool has the burden of proof by a preponderance of the evidence that the release was effective. Willis v. United States, 1995 WL 516393, p.2 (7th Cir. 1995).

 Wisch brought a worker's compensation claim on January 20, 1994, as Case No. WC 2883. Wisch was represented by two law firms in connection with that action: Richard Slovin of Steinberg, Burtker & Grossman, Ltd. and Lori Stelle of Jaffe, Stelle and Jaffe. Whirlpool was represented by Jeanmarie Calcagno at Stevenson, Rusin and Friedman. The worker's compensation action was settled on or about July 19, 1995. The parties executed a document entitled Settlement Contract Lump Sum Petition and Order. (Dx 4)(hereafter "Settlement Contract").

 At the time of settlement, Whirlpool paid Wisch the sum of $ 28,854.75, from which attorneys' fees and court reporters' fees were deducting, leaving Wisch with a net recovery of $ 22,963.80. Ms. Calcagno testified that the settlement was arrived at on the basis of arms length negotiations and that while both she and Wisch's worker's compensation attorney were aware of Wisch's federal claim under the ADA, no request for an exclusion of the ADA claim was ever made. Where requested and negotiated, such carveouts are sometimes made. She explained that the release language was not standard on the Illinois Industrial Commission form, but was inserted by her law firm for this case. She explained that this matter was highly disputed and no specific loss or specific wage differential was involved. She signed the release on behalf of Whirlpool on July 18, 1995. Ms. Calcagno acknowledged that there were no discussions of the ADA claim at the time of the settlement and that she was aware of the ADA claim at the time she drafted the Settlement Contract. She did not represent Whirlpool in the defense of the ADA claim.

 Mr. Wisch testified that he instructed Slovin to be sure that the release would not affect his ADA claim. He was told by Slovin that the Settlement Contract would not affect his ADA claim. He does not believe he read the entire document, but signed it of his own free will. His understanding was that the ADA claim remained intact.

 Mr. Slovin also testified for Wisch. He was brought into this matter for his expertise in worker's compensation. He was aware of the ADA claim. He asked Ms. Calcagno whether she was interested in a joint settlement of both the workers' compensation and ADA claims and she said she had no authority to settle the ADA claim. Thereafter, there was no further discussion of the ADA claim. Mr. Slovin told Mr. Wisch that the release would not cover the ADA case. All ...

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