Court of Appeals of Illinois, First District, First Division
SCOT VANDENBERG and PATRICIA VANDENBERG,  Plaintiffs-Appellees,
BRUNSWICK CORPORATION; BRUNSWICK BOAT GROUP, a division of Brunswick Corporation; RQM, LLC., Defendants, BRUNSWICK CORPORATION; BRUNSWICK BOAT GROUP, a division of Brunswick Corporation, Defendants-Appellants.
from the Circuit Court of Cook County No. 2010 L 003188
Honorable James N. O'Hara, Daniel J. Lynch and Elizabeth
M. Budzinski, Judges Presiding.
JUSTICE HARRIS delivered the judgment of the court, with
opinion. Justice Simon concurred in the judgment and opinion.
Justice Mikva specially concurred, with opinion.
1 Defendants, Brunswick Corporation and Brunswick Boat Group
(collectively, Brunswick), appeal the order of the circuit
court granting plaintiffs Scot and Patricia
Vandenberg's motion to vacate the court's prior
orders and to reinstate the parties' settlement
agreement. On appeal, Brunswick contends (1) the trial court
failed to give deference to the court's prior finding
that plaintiffs' counsel fraudulently induced the
settlement, (2) the trial court erred in reinstating the
settlement where there was a mistake in a material term and
Brunswick was deprived of its due process right to a fair
trial, and (3) the trial court erred in vacating the judgment
on the jury's verdict in favor of Brunswick. For the
following reasons, we affirm.
3 The trial court granted plaintiffs' motion to vacate
its prior orders and to reinstate the settlement agreement on
December 20, 2016. On January 18, 2017, Brunswick filed a
motion to vacate the December 20, 2016, order, and on January
19, 2017, Brunswick filed a notice of appeal from the order.
The trial court denied Brunswick's motion to vacate on
February 14, 2017. On February 15, 2017, the trial court
entered an amended order denying Brunswick's motion to
vacate and entered final judgment in favor of plaintiffs for
$25 million. Brunswick filed its notice of appeal on March
15, 2017. Accordingly, this court has jurisdiction pursuant
to Illinois Supreme Court Rules 303 (eff. May 30, 2008) and
304(a) (eff. Mar. 8, 2016), governing appeals from final
judgments entered below.
5 While hosting a party on a yacht, Scot Vandenberg fell from
the upper deck and broke his neck. The accident rendered him
quadriplegic. The yacht was manufactured by Brunswick and
owned and chartered by RQM. Plaintiffs filed a negligence and
strict liability action against Brunswick and RQM, alleging
failure to provide railings or equivalent protection around
the periphery of the boat deck, failure to prevent Vandenberg
from accessing areas without railings, and failure to warn
about the lack of railings. Plaintiffs subsequently settled
with RQM, and the case proceeded to trial against Brunswick
before Judge Budzinski.
6 I. Trial and Settlement
7 On June 9, 2015, the parties presented closing arguments,
during which plaintiffs' counsel requested a verdict in
favor of plaintiffs for $103 million. Prior to closing
arguments, AIG Global Claims Officer Andrew Barberis
instructed Charles Patitucci, a claims adjuster, to offer
plaintiffs $25 million in settlement of their claims against
Brunswick. Brunswick was insured through AIG, and through the
program, Brunswick was responsible for the first $2 million
of liability, with AIG thereafter responsible for liability
up to the policy limit of $41.5 million. Patitucci did not
want to make the offer to plaintiffs, but Barberis instructed
him to make the unconditional offer. While the jury
deliberated, Patitucci extended the $25 million offer to
plaintiffs' attorney, Mark McNabola.
8 McNabola informed plaintiffs of the offer to settle, and at
3:40 p.m., plaintiffs told McNabola they would accept the
offer. McNabola had not informed Brunswick of plaintiffs'
acceptance when he received a call at 3:52 p.m. from Tatianna
Agee, Judge Budzinski's clerk. Agee told McNabola that
the jury had sent out a note asking the following question:
"CAN WE FIND FAULT WITH RQM, WITHOUT FINDING FAULT WITH
BRUNSWICK?" Brooke Reynolds, a student extern for Judge
Budzinski, was in the room when Agee made the call. Reynolds
overheard Agee disclosing the contents of the note in a
hushed voice, and Agee told her she liked to "give the
plaintiffs a little more of an opportunity to settle or
figure the question out before the defense." Agee said
that McNabola told her the answer was "no" and to
"hold-off, don't do anything yet, I'm going to
try to settle this."
9 McNabola tried to reach Patitucci but was unsuccessful at
first. McNabola spoke again to Agee around 4:01 p.m., telling
her that he could not get a hold of the person he needed to
speak to about the settlement. He asked for further
instructions, and Agee told him that Judge Budzinski wanted
the parties to return to court. McNabola called
Brunswick's lead counsel, John Patton, and asked for
Patitucci's cell phone number. He did not tell Patton
about the jury note or that Agee had told him of the
note's contents. McNabola reached Patitucci at 4:03 p.m.,
and after learning that Patitucci's authority to settle
was limited to the $25 million offered, McNabola accepted the
offer. Patitucci did not give any indication that he knew of
the jury note or its contents. At 4:11 p.m., Patitucci called
Patton and informed him of the settlement.
10 Patitucci told Patton to place the settlement on the
record, and Patton asked his colleague, John Ouska, to go to
court for that purpose. Patton also instructed Ouska to
request that the jury be allowed to continue deliberating to
verdict because Patitucci was curious what the jury would
find. After speaking with Ouska, Patton received a call from
Agee at 4:19 p.m., and she informed him that Judge Budzinski
wanted the parties to come to court to discuss the jury note.
Patton had not known about the jury note prior to Agee's
call. Patton called Patitucci and told him that he would ask
Ouska to "check into [the note] when he got [to
court]." This was also the first time Patitucci had
heard of the note, and although he did not want to revoke the
settlement based only on the fact the jury sent out a note,
he wanted to find out "[a]nything and everything about
11 Patitucci returned to court along with Kelly Kaiser,
associate general counsel for Brunswick, and Kimberly
Kearney, Brunswick's appellate counsel. At approximately
4:40 p.m., Ouska, Kearney, and Kaiser entered Judge
Budzinski's chambers, where plaintiffs' attorneys
Ruth Degnan and Terrance Nofsinger were already present.
Judge Budzinski informed them that the jury had sent out a
note "at approximately 3:50 p.m." and she was
surprised it took counsel so long to return to court after
being notified. All counsel present viewed the jury note and
its contents. On the bottom, the note bore a handwritten
notation of "Rec'd 3:50 p.m." Kaiser called
Patitucci at 4:45 p.m., and informed him of the contents of
the note. Patitucci then called Patton. At 4:50 p.m., the
settlement was entered on the record in the presence of
counsel and the case dismissed.
12 Ouska requested that the jury be allowed to deliberate to
verdict. Judge Budzinski agreed, over Degnan's objection,
as long as the deliberations did not continue past 5 p.m.
Judge Budzinski answered the jury question, instructing them
to continue deliberations according to the instructions
already given. The jury reached a verdict in favor of
Brunswick at approximately 5 p.m. At this time, Patton
arrived at court and waited to speak with Judge Budzinski.
Patton informed Judge Budzinski that the settlement occurred
without him having knowledge of the jury's note. Agee,