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Whetstone v. Sooter

October 10, 2001

RODRICK WHETSTONE, AS ASSIGNEE OF ROSE GROCE, CHARLES LUSK, AND BILL THOMPSON TRANSPORT, INC., PLAINTIFF-APPELLEE
v.
ROBERT P. SOOTER, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Winnebago County. No. 96-L-247 Honorable J. Edward Prochaska, Judge, Presiding

The opinion of the court was delivered by: Justice McLAREN

PUBLISHED

Defendant, Robert A. Sooter, appeals the trial court's order denying his motion for summary judgment on a counterclaim filed by plaintiff, Rodrick Whetstone, as assignee of Rose Groce, Charles Lusk, and Bill Thompson Transport, Inc. We affirm.

Rodrick Whetstone was riding as a passenger in an automobile driven by Robert P. Sooter. On August 22, 1994, the automobile driven by Sooter collided with the rear portion of a truck driven by Rose Groce. The truck had pulled into the lane in front of Sooter's vehicle after having been stopped on the shoulder. The truck was owned by Charles Lusk and Bill Thompson Transport Company, Inc.

Whetstone filed an amended complaint alleging negligence against defendants, Sooter, Groce, Lusk, and Thompson Transport. Groce, Lusk, and Thompson Transport filed a counterclaim for contribution against defendant Sooter.

Groce, Lusk, and Thompson Transport entered into a settlement with Whetstone. In exchange for a general release of all claims against all defendants and the dismissal of the entire complaint with prejudice, Whetstone accepted a sum of $30,000 paid by Groce, Lusk, and Thompson Transport. The settlement also included an assignment to Whetstone of the counterclaim for contribution filed against Sooter by Groce, Lusk, and Thompson Transport.

The trial court entered the following order approving the settlement:

"THIS MATTER coming on for hearing on the Motion for Approval of Settlement, and the Plaintiff appearing by RENO, ZAHM, FOLGATE, LINDBERG & POWELL, by Robert A. Frederickson, and the Defendant, ROBERT P. SOOTER, appearing by ENNACE, MEADE & ASSOCIATES, by J. Klein, and the Defendants, ROSE GROCE, CHARLES LUSK, and BILL THOMPSON TRANSPORT, INC., appearing by LANDAU, OMAHANA & KOPKA, by Barry A. Robin and the Court being fully advised in the premises finds:

1. That the Plaintiff has settled the case as to all Defendants for the sum of $30,000 and an assignment of the counterclaim of ROSE GROCE, CHARLES LUSK, and BILL THOMPSON TRANSPORT, INC., and their insurer MARKEL INSURANCE COMPANY OF CANADA, against Robert P. Sooter, and the Court hereby approves said settlement as a good faith settlement;

2. That Defendants, ROSE GROCE, CHARLES LUSK and BILL THOMPSON TRANSPORT, INC., and their insurer, MARKEL INSURANCE COMPANY OF CANADA, have assigned to RODRICK WHETSTONE their counterclaim against SOOTER, and leave is granted for Rodrick Whetstone to amend said counterclaim to add Rodrick Whetstone as a counterplaintiff therein.

3. That the counterclaim (GROCE, LUSK, THOMPSON TRANSPORTATION, AND WHETSTONE v. SOOTER) aspect of this case is hereby assigned to the arbitration docket, as the amount in controversy is $30,000.

4. That the case of RODRICK WHETSTONE v. ROBERT P. SOOTER, ROSE GROCE, CHARLES LUSK, and BILL THOMPSON TRANSPORT, INC. (case no. 96-L-247 less the Groce, et al. v. Sooter counterclaim), is hereby dismissed with prejudice as the main case has been settled as set forth herein."

The order was signed by the attorneys for each of the parties, including Sooter.

Sooter filed a motion to dismiss the counterclaim pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2000)). The motion asserted that the general release of claims executed by Whetstone barred Whetstone's ability to proceed as plaintiff on the counterclaim assigned as part of the settlement. Sooter also filed a motion to dismiss the counterclaim as violative of his constitutional right to a jury trial. The motion asserted that the purpose and effect of the assignment of the counterclaim against Sooter was to avoid a jury's determination of the amount of damages to be awarded to Whetstone. Since Sooter filed a jury demand, he asserted that the assignment of the ...


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