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McGath

June 30, 2003

JAMES MCGATH, PLAINTIFF-APPELLANT,
v.
KIMBERLY PRICE, GLADYS GRIFFIN AND ENTERPRISE LEASING COMPANY OF CHICAGO, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 L 3307 The Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gordon

UNPUBLISHED

Plaintiff James McGath (plaintiff) appeals certain orders entered by the trial court in this cause originating from a motor vehicle accident in which defendant Kimberly Price (Price), while driving a vehicle leased by defendant Gladys Griffin (Griffin) from defendant Enterprise Leasing Company of Chicago (Enterprise), struck and hit plaintiff's vehicle, injuring him and his family. The orders plaintiff presents for our review include a March 6, 2001, order dismissing his claim against Price based upon the court's finding that plaintiff settled with her, a June 6, 2001, order dismissing his third-party beneficiary claim against Enterprise, and a June 12, 2002, order granting summary judgment in favor of Griffin based on plaintiff's failure to prove that Griffin negligently entrusted the vehicle to Price. Plaintiff argues that he did not settle his claims against Price, that Enterprise is contractually liable for his claims, and that there remains a genuine issue of material fact as to whether Griffin negligently entrusted the vehicle to Price. For their part, defendants argue that our court does not have jurisdiction to review the March 6, 2001, order dismissing Price or the June 6, 2001, order dismissing Enterprise, and alternatively, that these orders were proper. Defendants further argue that summary judgment entered in favor of Griffin was also proper based on the facts presented to the court at that time. For the following reasons, we affirm.

BACKGROUND

On April 1, 1997, plaintiff was driving his Suburban on the highway, along with his wife Diane and three children, Sarah, Robin and Kelly. Price, who was in a vehicle that her mother Griffin had rented from Enterprise, was driving on the shoulder of the highway and attempting to merge back into a traffic lane. Price's vehicle hit plaintiff's vehicle, sending plaintiff's vehicle into a concrete barrier and causing it to roll over several times. *fn1 Plaintiff's vehicle came to rest upside down, and Price left the scene. Plaintiff, his wife and children all sustained multiple injuries, including whiplash and back pain. Plaintiff also sustained a concussion and injuries to his hands and wrists. Further investigation revealed that Price's mother, Griffin, had permitted Price to drive the vehicle, which Griffin had rented from Enterprise, and that at the time of the accident, Price's driver's license had been suspended. Price was insured by State Farm Insurance Company (State Farm) for a policy limit of $25,000.

Plaintiff, his wife and children filed a complaint at law, and later an amended complaint, against Price, Griffin and Enterprise in 25 counts based on the following theories against the respective defendants: (1) against Price predicated on the theory of liability alleging that she negligently operated the vehicle; (2) against Griffin predicated on the theory of vicarious liability alleging that she had an agency relationship with Price, and predicated on the theory of direct liability alleging that she negligently entrusted the vehicle to Price; and (3) against Enterprise predicated on the theory of vicarious liability alleging that it owned the vehicle, and predicated on a theory of contractual liability alleging that plaintiff, his wife and children were third-party beneficiaries to Enterprise's insurance contract with Griffin as indicated in the rental agreement, which stated that Enterprise would provide "liability insurance or coverage to [the] renter *** for bodily injury *** to *** any third party."

Griffin and Enterprise each filed a motion for summary judgment. Before these motions were heard by the trial court, plaintiff's wife and children settled their claims with Griffin and Enterprise. Counsel for Griffin and Enterprise prepared, and counsel for plaintiff's wife and children signed, a document entitled "stipulation to dismiss action," stating that Diane, plaintiff's wife, and Sarah, Robin and Kelly, plaintiff's children, agreed to dismiss their action against Griffin and Enterprise with prejudice. Counsel for Griffin and Enterprise then prepared an agreed order to present to the court based on this stipulation, dismissing Diane, Sarah, Robin and Kelly from the suit against Griffin and Enterprise and stating that plaintiff's claims against Griffin and Enterprise remained pending. On March 6, 2001, the trial court entered this agreed order and dismissed Diane, Sarah, Robin and Kelly's claims against Griffin and Enterprise with prejudice. On this same date, the trial court entered another order submitted by counsel for plaintiff stating that, pursuant to the stipulation to dismiss, the suit

"is dismissed with prejudice pursuant to settlement with regard to Plaintiffs, DIANE, KELLY, SARA [sic] and ROBYN [sic], and James McGATH, and Defendants KIMBERLY PRICE and STATE FARM INSURANCE COMPANY only. The *** matter continues with regard to JAMES McGATH and GLADYS GRIFFIN and ENTERPRISE LEASING COMPANY OF CHICAGO only." (Emphasis added.)

While this order was entered by the trial court on March 6, 2001, and bore that court-stamped date, it also bore the handwritten date of "February 27, 2001." The portion stating "and James" was also handwritten, and there is no attorney name, address or number on this order. The order was signed by the trial court. On March 14, 2001, counsel for plaintiff sent a copy of this order dismissing Price from the cause to Price's attorney. Soon thereafter, plaintiff received $25,000, the full policy limit, from Price's insurer, State Farm.

Officer Michael Pignatiello testified in a deposition that he was the officer that responded to the accident involving plaintiff and Price. Officer Pignatiello testified that Price left the scene and that, from statements by witnesses, he was able to trace the vehicle Price was driving to Griffin. Officer Pignatiello stated that he spoke to Price's husband who, though he told officer Pignatiello that Price had a general problem with cocaine, did not indicate that Price was on cocaine at the time of the accident. Officer Pignatiello found Price a few days after the accident, but did not charge her with driving while under the influence of drugs or alcohol. Officer Pignatiello reviewed Price's driver's license abstract, which indicated that Price's license was suspended and not valid at the time of the accident. Officer Pignatiello stated that the reason for this suspension was not because of the magnitude of the driving violations for which she was cited but, rather, because Price failed to appear in traffic court and pay fines related to those prior driving citations. Officer Pignatiello testified that had Price appeared in court on the required day, her driver's license would not have been suspended and would have been valid on the day of the accident.

Plaintiff filed responses to Griffin's and Enterprise's motions for summary judgment. In her reply to plaintiff's response, Griffin asserted that the vicarious liability count against her should be dismissed because her alleged agent, Price, had settled with plaintiff and this settlement extinguished any purported liability she may have had as Price's principal. In its reply to plaintiff's response, Enterprise asserted that the vicarious liability counts against it should be dismissed because, based on the attached affidavit of its employee-representative, it was clear that neither Griffin nor Price was an agent of Enterprise. On June 6, 2001, the trial court granted Enterprise's motion for summary judgment thereby dismissing Enterprise from the cause and set ruling on Griffin's motion for summary judgment for August 8, 2001.

On August 8, 2001, the trial court entered Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) language with respect to its order granting summary judgment for Enterprise, stating that there was no just reason to delay the enforcement or appeal of the June 6, 2001, order. Also on August 8, 2001, the trial court entered summary judgment in favor of Griffin, dismissing that portion of plaintiff's claim against her based on her alleged agency relationship with Price. The court stated that because plaintiff and Price had settled any alleged liability on Price's part as exhibited by the order entered by the court on March 6, 2001, the claim against Griffin based on this vicarious liability as a principal must be dismissed. The court then set the only remaining count, namely, plaintiff's claim of direct liability against Griffin for negligent entrustment, for status.

Before any argument was had on the remaining count, the parties took Griffin's deposition. Griffin testified that she had a close relationship with Price and that they had lived together until 1991, when Price got married. After 1991, Price lived next door to Griffin for a time, and the two saw each other almost every day. Griffin stated that Price has never lived more than a mile from her and that they currently saw each other several times a week. On the morning of the accident, Griffin loaned the vehicle she rented from Enterprise to Price to run some errands. Griffin testified that Price was "calm" and "normal" and did not appear intoxicated from drugs or alcohol that day. Griffin stated that before she turned the vehicle over to Price, she asked whether she had a driver's license, which Price then produced. Griffin further testified that, as of that day, she did not know that Price had been involved in any prior auto accidents or had received any prior traffic tickets. To her knowledge, Price never used drugs or alcohol, never had trouble with the police, and had a "clean" driving record.

Price's deposition was also taken. Price testified that she had not lived with Griffin since 1991, when she was 21 years old. Price stated that on the morning of the accident, she had not taken any drugs or alcohol. Price also testified that she believed her driver's license was valid on that day. She had been stopped by police before for traffic violations, involving running a stop and yield sign and making an illegal U-turn. She believed, however, that she had paid the required fines and was never notified by any traffic ...


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