{ "id": 3531244, "name": "EDITH RADTKE, Plaintiff-Appellee, v. INTERNATIONAL HEATER COMPANY, INC., Defendant (Honeywell, Inc., Defendant-Appellant)", "name_abbreviation": "Radtke v. International Heater Co.", "decision_date": "1986-01-28", "docket_number": "No. 85\u20141301", "first_page": "542", "last_page": "545", "citations": [ { "type": "official", "cite": "140 Ill. App. 3d 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 Ill. 2d 612", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "388 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579526 ], "year": 1979, "pin_cites": [ { "page": "1019" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/1009-01" ] }, { "cite": "230 So. 2d 706", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9733433, 9733279 ], "weight": 2, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/so2d/230/0706-02", "/so2d/230/0706-01" ] }, { "cite": "38 Ill. 2d 629", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "235 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "92 Ill. App. 2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5321902 ], "year": 1968, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/92/0001-01" ] }, { "cite": "63 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "342 N.E.2d 65", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 577", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5305320 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "592" }, { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0577-01" ] } ], "analysis": { "cardinality": 463, "char_count": 7787, "ocr_confidence": 0.765, "pagerank": { "raw": 8.482071741606683e-08, "percentile": 0.4857653863217508 }, "sha256": "44309c1a73d6d4fcb1fc744f5d20a6e230669250f35d159443c5836f40a82791", "simhash": "1:6a611942af1f8af1", "word_count": 1286 }, "last_updated": "2023-07-14T21:56:30.289204+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDITH RADTKE, Plaintiff-Appellee, v. INTERNATIONAL HEATER COMPANY, INC., Defendant (Honeywell, Inc., Defendant-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE BILANDIC\ndelivered the opinion of the court:\nThis is a subrogation action brought in the name of plaintiff-appellee Edith Radtke by her insurer, Economy Fire & Casualty Company. Radtke\u2019s home was damaged by fire and smoke on April 23, 1979. Her amended complaint sought recovery from defendants International Heater Company, Inc., the furnace manufacturer, Honeywell, Inc., the manufacturer of a switch used in the furnace, and K & K Heating, the installer. After a jury was selected, but before trial began, defendant-appellant Honeywell moved to strike Radtke as the party plaintiff. The court denied the motion, and a jury returned a verdict for $6,695.95 in plaintiff\u2019s favor. Honeywell appeals. The only issue is whether Radtke is the proper party plaintiff.\nRadtke\u2019s home sustained smoke and fire damage as a result of a defective limit switch that was used in the furnace. A limit switch is a safety device that keeps a furnace from overheating. Radtke filed a claim with her insurer, the Economy Fire & Casualty Company. She admitted in response to interrogatories submitted by International Heater Company, Inc., that she \u201creceived reimbursement.\u201d The insurer, a subrogee, filed a complaint in Radtke\u2019s name, seeking recovery from defendants. Defendant International Heater Company, Inc., is not a party to this appeal. A second defendant, K & K Heating, reached a settlement agreement with plaintiff for $1,000, and it is not a party. Plaintiff and the third defendant, appellant Honeywell, Inc., the manufacturer of the limit switch, went to trial.\nBefore trial, but after the jury was chosen, Honeywell moved to strike plaintiff Radtke as the party plaintiff. Honeywell argued that plaintiff was claiming $7,200 in damages and had a $100 deductible. Because she received a settlement of $1,000, she had been reimbursed for her deductible and thus had no real interest in the litigation. In response, plaintiff argued that her deductible is satisfied on a pro rata basis. Because the $1,000 represented only 14% of the amount that was sought, only $14 of the deductible had been reimbursed, thus giving her an interest in the litigation.\nDefendant relied on section 143b of the Insurance Code of 1937 (Ill. Rev. Stat. 1979, ch. 73, par. 755b). The court, in responding to the argument, ruled:\n\u201cThis [section] I am familiar with. However, this pertains to collision coverage. *** [A]nd even there it says that the client, the insuredf,] is entitled to a full share of the net settlement. ***\nHere, I think, gentlemen, we have a partial recovery which is set off, and therefore, I still think there is an interest, arid she should be named as a party plaintiff. That\u2019s going to be my ruling. ***\u201d\nThe court then granted plaintiff\u2019s motion to bar any evidence that showed that the insurer was the subrogee.\nThe jury returned a verdict in plaintiff\u2019s favor. The verdict was reduced by the amount of the settlement, and a judgment for $5,695.95 was entered. Defendant appeals, and argues that the insurer should have been named as the party plaintiff.\nSubrogation actions are governed by section 2 \u2014 403(c) of the Code of Civil Procedure, which states:\n\u201c(c) Any action hereafter brought by virtue of the subrogation provision of any contract or by virtue of subrogation by operation of law shall be brought either in the name or for the use of the subrogee; and the subrogee shall in his or her pleading on oath, or by his or her affidavit if pleading is not required, allege that he or she is the actual bona fide subrogee and set forth how and when he or she became subrogee.\u201d (Ill. Ann. Stat., ch. 110, par. 2 \u2014 403(c) (Smith-Hurd 1985 Supp.).)\nA long line of cases has established the principle that if an insured plaintiff has even a de minimus pecuniary interest in the suit, that interest is sufficient to allow a subrogation action to be maintained in the plaintiff\u2019s name. (Nitrin, Inc. v. Bethlehem Steel Corp. (1976), 35 Ill. App. 3d 577, 592, 342 N.E.2d 65, appeal denied (1976), 63 Ill. 2d 552.) It is also equally clear that if the plaintiff has no right to recovery, the interest of the subrogee cannot be concealed, and \u201c \u2018[i]t must be either named as the plaintiff or disclosed as the real party in interest.\u2019 \u201d Nitrin, Inc. v. Bethleham Steel Corp. (1976), 35 Ill. App. 3d 577, 592, quoting Shaw v. Close (1968), 92 Ill. App. 2d 1, 4, 235 N.E.2d 830, appeal denied (1968), 38 Ill. 2d 629.\nThe narrow issue in this case is whether the $1,000 settlement was prorated between Radtke and her insurer. The record is deficient in two respects. First, it does not contain a copy of the policy, so we cannot determine whether the parties were obligated contractually to prorate the settlement. Second, there is no copy of the settlement agreement from which we can infer the intent of the parties.\nMoreover, we agree with the trial court that defendant\u2019s reliance on section 143b of the Insurance Code of 1937 does not support its position. Section 143b refers specifically to collision coverage and states in part: \u201cIf the deductible amount is included in the subrogated loss claim the insurance carrier shall pay the full pro rata deductible share to its insured out of the net recovery on the subrogated claim.\u201d (Ill. Ann. Stat., ch. 73, par. 755b (Smith-Hurd 1985 Supp.).) Thus, even if this section applied, it favors plaintiff\u2019s position that the settlement was prorated, leaving Radtke with a sufficient pecuniary interest to remain as party plaintiff.\nPlaintiff, in support of her position, relies on Blue Cross of Florida, Inc. v. O\u2019Donnell (Fla. App. 1970), 230 So. 2d 706. There, the insurer intervened in a suit brought by the spouse of an insured against a tortfeasor. The appellate court reversed a summary judgment against the insurer. It said, \u201c[I]f it is found that the \u2022 appellant [Blue Cross] is entitled to recover, then such an amount, if any, shall be based upon equitable considerations, taking into account factors such as the amounts received by the injured party, and the amounts expended by the insurer. Moreover, pro rata distribution is available in the event that the beneficiary, in his separate action against the tortfeasor, receives a recovery less than the amount advanced by the intervenor-subrogee. This procedure falls within the purview of an equitable disposition of the parties\u2019 rights.\u201d (230 So. 2d 706, 709.) The O\u2019Donnell case, then, supports plaintiff\u2019s position that any settlement was prorated between her and her insurer.\nEven assuming that the court\u2019s ruling was error, defendant has not shown any prejudice. It attacks neither the finding of liability nor the amount of damages. At trial, defendant presented only one witness, a Honeywell engineer, and there is no indication that the case would have been tried any differently had the insurer-subrogee been substituted as the party plaintiff. We have held that \u201cthe objective of a reviewing court is not to determine whether the record is totally free of error but whether any error occurred which substantially prejudiced [a party] and affected the outcome below.\u201d Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1019, 388 N.E.2d 770, appeal denied (1979), 79 Ill. 2d 612.\nIn this case, defendant has not carried its burden of proof. It has given us no reason to reverse the judgment of the circuit court.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nSTAMOS and HARTMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BILANDIC" } ], "attorneys": [ "James J. Desveaux, of Chicago, for appellant.", "John J. Dwyer, Jr., of Karr & Valenti, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "EDITH RADTKE, Plaintiff-Appellee, v. INTERNATIONAL HEATER COMPANY, INC., Defendant (Honeywell, Inc., Defendant-Appellant).\nFirst District (2nd Division)\nNo. 85\u20141301\nOpinion filed January 28, 1986.\nJames J. Desveaux, of Chicago, for appellant.\nJohn J. Dwyer, Jr., of Karr & Valenti, Ltd., of Chicago, for appellee." }, "file_name": "0542-01", "first_page_order": 564, "last_page_order": 567 }