United States District Court, N.D. Illinois
January 15, 2004.
CARMELLA ZAGONE, Plaintiff,
AARON BOSQUES and ELEUTERIO MEDINA, Defendants
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Aaron Bosques, moves to dismiss the action pursuant to a
settlement. Plaintiff, Carmella Zagone, opposes Defendant's motion.
The instant suit arose out of an automobile accident that occurred on
February 25, 2002. Bosques, while operating a vehicle belonging to
Defendant Eleuterio Medina, struck Plaintiff and caused her to sustain
personal injuries. At the time of the accident, Medina was insured by
American Heartland Insurance ("Heartland") with policy limits of $20,000
per person and $40,000 per occurrence. Bosques was insured by American
Service Insurance Company ("Service") with policy limits of $20,000 per
person and $40,000 per occurrence. Plaintiff was insured through Economy
Premier Assurance Company with underinsured coverage of $100,000 per
On April 16, 2003, Heartland offered Plaintiff its policy limit of
$20,000. At this time, Leslie Milbury, Plaintiff's attorney, made an
underinsured motorist claim for $80,000 with Economy. She informed
Economy of the $20,000 offer. Economy's claim adjuster, in Minnesota,
informed Milbury that she could settle with Heartland and Bosques for
On June 26, 2003, Milbury and Bosques's counsel spoke regarding
settling the instant
suit. Milbury stated that Plaintiff had settled with her insurance
company for $80,000 and had executed a simple, general release, which she
read to Bosques's counsel. The general release did not reserve any rights
in the settlement agreement, nor did it require the Plaintiff to perform
any further contractual obligations. Milbury also stated that Plaintiff
was accepting the $20,000 offered by Heartland to settle all claims
against both Defendants, Bosques and Medina. On June 30, 2003, Milbury
informed Bosques's counsel that she had authority from Plaintiff to
accept $20,000 from Heartland as full settlement of all of Plaintiff's
claims in exchange for a dismissal of her lawsuit and an executed
release. A general release was drafted and forwarded to Milbury for
On July 8, 2003, Bosques's counsel telephoned Milbury and was informed
that Plaintiff's insurance company offered Plaintiff $20,000 for an
assignment of her claim against Bosques. On July 17, 2003, Plaintiff
signed a release and trust agreement with Plaintiff's insurer, Economy,
for $99,000; included in this amount was the $20,000 offered by
Bosques seeks to have the lawsuit dismissed pursuant to the settlement
agreement Plaintiff does not deny that an oral settlement was reached
with Heartland. Plaintiff's insurance carrier, Economy, argues that its
adjuster was incorrect and mistakenly informed Milbury that Milbury could
settle and that enforcement of the settlement could prejudice its right
Settlement between parties of disputed claims is encouraged and favored
by the courts and are given full force and effect. See Knoll v.
Swanson, 92 Ill. App.2d 398, 402 (1968). Oral settlements are
enforceable if there is an offer, acceptance, and a meeting of the minds
regarding the terms. See Johnson v. Hermanson,
221 Ill. App.3d 582, 584 (1991). The offer and
acceptance must be so definite with respect to its material terms
that the promises and performances to be rendered by each party are
reasonably certain. See Pritchett v. Asbestos Claims Mgmt.
Corp., 332 Ill. App.3d 890, 896 (2002). A meeting of the minds
between the parties is present where there has been assent to the same
things in the same sense on all of the essential terms and conditions.
See LaSalle National Bank v. International Ltd.,
129 Ill. App.2d 381, 394(1970).
Here, the undisputed facts show that all of the elements for a valid
oral contract exist. Plaintiff was to receive a single sum of money from
Heartland in exchange for a release of all claims as to Bosques and
Medina. The issue that Plaintiff claims defeats this settlement agreement
arose after the oral settlement had already been reached. The issue, the
general release effected between Plaintiff and Economy, Plaintiff's
insurer, and the validity of Plaintiff's assignment of right to Economy
do not effect the validity of the oral settlement agreement in effect
between Heartland and the Plaintiff.
Plaintiff cites to Vece v. DeBiase, 46 Ill. App.2d 248
(1972), as support for her argument that the settlement agreement was not
finalized. The settlement agreement in Vece involved a material
mistake of fact not known when the negotiations took place and was
dependent on the approval of the probate court. The approval of the
probate court had not been secured. Accordingly, all conditions precedent
to the finality of the settlement agreement had not been secured. See
Vece, 46 Ill. App.2d at 252. However, if all of the conditions to a
settlement agreement have been met and no further action is required to
enforce such agreement, the settlement agreement is final for enforcement
purposes. See Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co.,
42 Ill. App.3d 865, 841 (1976) (Sheffield) (distinguishing
settlement agreement enforceable because settlement agreement had
been "finalized" because no other action was required for the settlement
agreement to be enforceable); see also Thornberry v. Board of Educ.
of the City of Chicago, 8 Ill. App.3d 351, 354 (1972)
(Thornberry) (settlement enforceable if offer and acceptance and
the agreement was concluded by disposition of the cause through entry of
judgment or the execution "or willingness to execute releases."
Here, unlike Vece, and as in Sheffield the parties,
through their attorneys, conducted negotiations resulting in an offer and
acceptance of a settlement agreement and Plaintiff's willingness to
execute a release no other actions were required for the
settlement agreement to be enforceable. Accordingly, the settlement
agreement is final for purposes of enforcement. See Scheffield,
42 Ill. App.3d at 841; Thornberry, 8 Ill. App.3d at 354.
Plaintiff also argues that the settlement agreement should not be
enforced because a mistake of fact was made by her attorney and/or
Economy. However, any such mistake would be a unilateral mistake; and a
unilateral mistake does not render a settlement agreement unenforceable.
See Kim v. Alvey, Inc., 322 Ill. App.3d 657, 669 (2001);
Cole Taylor Bank v. Cole Taylor Bank, 224 Ill. App.3d 696, 708
For the reasons stated above, Bosques's Motion to Dismiss Pursuant to
Settlement is granted. Plaintiff's suit is dismissed in its entirety
pursuant to the oral settlement agreement.
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