{
  "id": 5155755,
  "name": "SAMUEL SHUSTER, Plaintiff-Appellee, v. ROBERT M. BRANTLEY et al., Defendants-Appellants",
  "name_abbreviation": "Shuster v. Brantley",
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  "casebody": {
    "judges": [],
    "parties": [
      "SAMUEL SHUSTER, Plaintiff-Appellee, v. ROBERT M. BRANTLEY et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE McNULTY\ndelivered the opinion of the court:\nThis appeal arises out of a dispute between the parties as to the amount of interest owed by the defendant judgment debtors on a judgment entered on plaintiffs behalf. After a trial on plaintiff Samuel Shuster\u2019s personal injury suit against defendants Robert M. Brantley, Diane Newman and James Newman, the jury returned a verdict in favor of the plaintiff in the amount of $950,000 but reduced the award to $76,000 after finding plaintiff 92% contributorily negligent. Judgment was entered in the amount of $76,000 against Robert Brantley and Diane Newman. A directed verdict was entered in favor of defendant James Newman.\nFollowing entry of the judgment, plaintiff filed a post-trial motion requesting a new trial on the issue of comparative negligence or, in the alternative, a new trial on all issues. The trial court denied plaintiff\u2019s post-trial motion and plaintiff appealed.\nWhile plaintiff\u2019s appeal was pending in the appellate court, defendants\u2019 insurance carrier tendered to plaintiff\u2019s attorney a check, dated December 28, 1988, in the sum of $84,005.17 as satisfaction of the judgment entered against defendants. The check was made payable to \u201cSamuel Shuster, Herbert F. Stride, Ltd., William J. Harte, Ltd., and the Law Offices of Richard S. Bennett, his attorneys, American Ambassador Casualty Company, as subrogee of Samuel Shuster, Benefit Trust Life Insurance Company, as subrogee of Samuel Shuster.\u201d Plaintiff\u2019s counsel returned the check with a letter stating:\n\u201cThis cause is on appeal in the Illinois Appellate Court, First District. The outcome of that appeal will have to be realized before a proper tender of the satisfaction funds can be considered.\u201d\nThe appellate court affirmed the judgment of the trial court, and plaintiff petitioned the supreme court for leave to appeal. Following the denial of plaintiff\u2019s petition for leave to appeal, plaintiff demanded satisfaction of the judgment, with interest to date. Defendants refused, asserting that the tendered check dated December 28, 1988, served to stop the further accrual of interest on the judgement.\nPlaintiff then moved for summary judgment on the issue of whether the December 28, 1988, check, sent to plaintiffs counsel by defendants\u2019 insurance carrier, constituted a valid tender in satisfaction of the judgment debt.\nOn January 3, 1991, the trial court entered an order granting plaintiff\u2019s motion for summary judgment. The court found that the check dated December 28, 1988, was an invalid tender because it was a conditional tender including the names of payees in addition to the judgment creditor, and that plaintiff is entitled to interest accruing by the statutory amount until satisfaction of the judgement.\nThe sole issue on appeal is whether the tender made by defendants on December 28, 1988, stopped the accrual of interest on the judgment. For the following reasons, we reverse the decision of the trial court.\nUnder section 2\u20141303 of the Code of Civil Procedure, \u201c[\u00a1judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141303.) Interest continues to accrue even when an appeal is pending. (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541.) Section 2\u20141303 does, however, provide a means for a judgment debtor to stop further accrual of interest. The provision provides:\n\u201cThe judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141303.)\nDefendants claim that they stopped the accrual of interest on the judgment in accordance with section 2\u20141303 when they tendered the check for $84,005.17 to plaintiff on December 28, 1988. Plaintiff, in turn, contends that the accrual of interest on the judgment was not stopped in 1988 since the check proffered by defendants \u201cwas not a certified check and contained payees names who are not judgment creditors\u201d and thus did not constitute a valid tender.\nWe initially note that there is no merit to plaintiff\u2019s contention that defendants\u2019 tender was invalid because it was not made by certified check. Neither the relevant tender statute (Ill. Rev. Stat. 1989, ch. 110, par. 2\u20141303) nor the case law applying the tender statute imposes the requirement that the tender be made by certified check.\nThe trial court reached its decision that defendants\u2019 tender was invalid based solely on the fact that defendants listed as payees on the December 28, 1988, check (in addition to plaintiff and his attorneys) the American Ambassador Casualty Company and the Benefit Trust Life Insurance Company, thereby improperly making the tender conditional. According to the doctrine of subrogation, if the tortfeasor or his insurance carrier had knowledge of the insurersubrogees\u2019s interest prior to tender, but the tender does not include an amount designated as covering the insurer\u2019s subrogation interest, the insurer-subrogee may bring a subrogation action against the tortfeasor or his insurance carrier. (Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210, 375 N.E.2d 115.) Therefore, if defendants\u2019 insurance carrier did in fact have notice that both American Ambassador and Benefit Trust Life were subrogated to the rights of plaintiff, naming these parties as payees would have been a proper procedure to protect defendants and their insurance carrier from claims by unreimbursed lien holders. While defendants claim to have received notice of American Ambassador and Benefit Trust Life\u2019s subrogation rights, the record is devoid of any document proving the receipt of such notice.\nDespite this fact, we still conclude that defendants\u2019 tender on December 28, 1988, stopped the accrual of interest on the judgment. Our decision is based on the fact that at the time of tender, plaintiff never objected to the form of tender. When plaintiff refused to accept the tender, he stated only that \u201cthe outcome of [the] appeal will have to be realized before a proper tender of the satisfaction funds can be considered.\u201d It is clear that plaintiff would have rejected defendants\u2019 tender regardless of whether or not the lien holders were included as payees. The tender was rejected solely because plaintiff hoped to get a more favorable result on appeal. Plaintiff now objects to the form of tender. However, if no specific objection to the form or contents of the tender is made at the time of tender, the objection is waived. (Gravelot v. Skender (1956), 9 Ill. 2d 15, 135 N.E.2d 756; Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351; Loveless v. Loveless (1972), 3 Ill. App. 3d 967, 279 N.E.2d 531.) In failing to specifically list his objection to the tender at the time of tender, plaintiff denied defendants the opportunity to cure the deficiency. (Thompson v. Crains (1920), 294 Ill. 270, 128 N.E. 508; Gradle v. Warner (1892), 140 Ill. 123, 29 N.E. 1118.) We therefore find that plaintiff\u2019s failure to make a timely objection to the inclusion of the lien holders prevents plaintiff from now raising that objection.\nAccordingly, we reverse the order of the trial court granting summary judgment in favor of plaintiff, and we find that the interest accrual on plaintiff\u2019s judgment terminated December 28, 1988, and that the sum of $84,005.17 constitutes full and complete satisfaction of the judgment entered against defendant.\nReversed.\nLORENZ and GORDON, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE McNULTY"
      }
    ],
    "attorneys": [
      "Orner & Wasserman, of Chicago (Norton Wasserman and Mary A. Mazurk, of counsel), for appellants.",
      "Herbert F. Stride, Ltd., and William J. Harte, Ltd., both of Chicago (Herbert F. Stride, William J. Harte, and Joan M. Mannix, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "SAMUEL SHUSTER, Plaintiff-Appellee, v. ROBERT M. BRANTLEY et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 1\u201491\u20140332\nOpinion filed November 30, 1992.\nOrner & Wasserman, of Chicago (Norton Wasserman and Mary A. Mazurk, of counsel), for appellants.\nHerbert F. Stride, Ltd., and William J. Harte, Ltd., both of Chicago (Herbert F. Stride, William J. Harte, and Joan M. Mannix, of counsel), for appellee."
  },
  "file_name": "0770-01",
  "first_page_order": 788,
  "last_page_order": 792
}