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Lawdrena Zellers v. Juan Hernandez and Thomas Davis

December 10, 2010

LAWDRENA ZELLERS,
PLAINTIFF,
v.
JUAN HERNANDEZ AND THOMAS DAVIS, DEFENDANTS
THOMAS DAVIS AND GMAC INSURANCE COMPANY,
COUNTERPLAINTIFFS-APPELLEES,
v.
JUAN HERNANDEZ,
COUNTERDEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County 06 M1 300341 Honorable Laurence Dunford, Judge Presiding

The opinion of the court was delivered by: Justice McBRIDE

JUSTICE McBRIDE delivered the opinion of the court: Following a May 2004 vehicle accident, plaintiff Lawdrena Zellers filed a personal injury action against defendants Juan Hernandez and Thomas Davis. Davis filed a counterclaim for contribution against Hernandez. GMAC Insurance Company (GMAC) was added later as a counterplaintiff. Zellers settled with Davis and GMAC, as Davis's insurer, for $17,500 and executed a release for both defendants and the case proceeded only on the contribution counterclaim. An arbitration award found Hernandez to be 100% negligent, but no money damages were requested. Davis moved for a good-faith finding on the settlement and for the trial court to enter judgment in favor of Davis and GMAC for $17,500. The trial court concluded that a good-faith finding was unnecessary and entered judgment for Davis and GMAC for $17,500.

Hernandez appeals, arguing that: (1) the trial court erred by altering the arbitration award to enter a money judgment on the arbitration award when no money damages had been awarded at arbitration; and (2) the trial court erred in entering judgment on the contribution counterclaim when no finding of good faith on the settlement had been made.

On January 25, 2006, Zellers filed her two-count personal injury complaint against Hernandez and Davis. Count I alleged negligence against Hernandez and count II alleged negligence against Davis. The complaint alleged that on May 1, 2004, Zellers was operating a motor vehicle southbound on Kedzie at the intersection with Columbus in Chicago. At that time, Hernandez was driving a vehicle westbound on Columbus and Davis was driving north on Kedzie. Zellers alleged that both Hernandez and Davis were guilty of the following acts of negligence: operating a motor vehicle at an excessive rate of speed under the circumstances; failing to brake his vehicle properly; failing to keep a proper lookout; failing to keep his motor vehicle under proper control; failing to warn the plaintiff of the impending danger; failing to take proper evasive action to avoid a collision once it became imminent; and failing to yield the right of way.

Zellers alleged that as a direct and proximate result of one or more of the negligent acts or omissions of Hernandez and Davis, the vehicles operated by Hernandez and Davis collided with Zellers' vehicle. As a result of the collision, Zellers sustained injuries and paid for medical care and treatment. Zellers also experienced pain, suffering and mental anguish, temporary and permanent disability and disfigurement, in two weeks of lost wages, and property damage to her vehicle. Her medical bills were $6,800. Zellers sought $15,000, plus costs, from each defendant.

In June 2006, Davis filed a counterclaim for contribution against Hernandez. Davis alleged that Hernandez was guilty of the following acts or omissions: failing to maintain a proper and sufficient lookout; failing to exercise obedience to traffic laws; and traveling at a speed in excess of the posted speed limits and greater than reasonable and proper under the circumstances and acting carelessly and negligently. Davis pled that if judgment was entered in favor of Zellers and against Davis, then judgment for contribution should be entered in favor of Davis and against Hernandez in proportion to the amount of fault on the part of Hernandez which proximately caused and/or contributed to Zellers' injuries or damages.

In April 2008, Zellers settled with Davis for $17,500 and executed a release of all defendants, including Hernandez. The settlement was paid by GMAC, Davis's insurer. Zellers released all liability claims, but excluded any claims for contribution that Davis has against Hernandez.

In May 2008, Davis filed an amended counterclaim for contribution. Davis, in addition to the previously pled negligent acts or omissions, alleged that Hernandez: failed to obey the instructions of an official traffic-control device; failed to stop at a clearly marked stop line or before entering the crosswalk at a "steady red indication"; failed to proceed through the intersection or past a flashing yellow signal with caution; and was otherwise careless and negligent. Davis reasserted his claim for contribution from Hernandez in proportion to the proximate cause of Zellers' injuries or damages. Subsequently, the trial court dismissed Zellers' claims against Davis and Hernandez with prejudice and the matter proceeded solely on the counterclaim for contribution. Also in May 2008, Davis filed a motion to spread of record the amount of settlement. Davis asked to provide the trial court with the amount of the settlement, $17,500, to assist in calculating the judgment in the contribution counterclaim.

On July 28, 2008, the parties proceeded to arbitration on the contribution counterclaim.

The arbitrators found that all parties participated in good faith. They entered an "award for counterplaintiff, Thomas Davis, and against counterdefendant, Juan Hernandez, with finding of 100% negligence on part of Juan Hernandez." In the section for costs, the arbitration finding stated "none" and "not requested." Neither party rejected the arbitration award.

In August 2008, Davis filed a motion to add GMAC as an additional counterplaintiff, which the trial court granted. Davis and GMAC then filed a second amended counterclaim for contribution. GMAC alleged identical claims of negligent acts or omissions by Hernandez as Davis. GMAC further alleged that it paid the costs of the settlement pursuant to an automobile insurance policy, and under that policy, GMAC is the "bona fide subrogee" of Davis for his entire loss claim.

Davis filed a motion asking for judgment on the arbitration award to be entered. Hernandez objected to the motion and both parties filed briefs on the motion. Hernandez contended that Davis failed to show that the settlement with Zellers was reasonable and in good faith. Hernandez also asserted that Davis could not recover under a theory of contribution because there was no joint indebtedness, as Hernandez was found to be 100% negligent. Davis replied that Hernandez failed to reject the arbitration award and cannot challenge the finding of 100% negligence. Davis further argued that a good-faith finding was not required because Zellers settled and released all defendants and that judgment in the amount of $17,500 against Hernandez should be entered, based on the settlement and the allocation of fault by the arbitrators.

In December 2008, the judge presiding entered an order that the award of 100% negligence against Hernandez stands and "this matter will proceed to trial on the issues of proximate cause and medical damages and nature and extent of Lawdrena Zellers' injuries related to this occurrence."

The case was scheduled for trial on March 18, 2009. On that date, counterplaintiffs filed a motion for a good-faith finding on the settlement award. The trial court granted counterplaintiffs leave to file an additional motion for judgment on the arbitration award entered July 28, 2008, and set a briefing schedule and a hearing date. On May 4, 2009, the trial court conducted a hearing on the motions. At the hearing on the motion, another judge stated that he did not believe a good-faith finding was necessary and declined to make a determination about the good faith of the settlement. The trial court then granted counterplaintiff's motion for judgment on the arbitration award. The ...


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