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Vandenberg v. Brunswick Corp.

Court of Appeals of Illinois, First District, First Division

November 27, 2017

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.

         Appeal 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[2] 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.

         ¶ 2 JURISDICTION

         ¶ 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.

         ¶ 4 BACKGROUND

         ¶ 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 the note."

         ¶ 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, who ...

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