{ "id": 5424021, "name": "GARRY D. KEMP, Plaintiff-Appellant, v. BRIDGESTONE/FIRESTONE, INC., f/k/a Firestone Tire and Rubber Company, et al., Defendants-Appellants (Bridgestone/Firestone, Inc., Third-Party Plaintiff-Appellant; John L. Simmons Construction Company, Third-Party Defendant-Appellee)", "name_abbreviation": "Kemp v. Bridgestone/Firestone, Inc.", "decision_date": "1993-12-09", "docket_number": "No. 4\u201493\u20140250", "first_page": "858", "last_page": "866", "citations": [ { "type": "official", "cite": "253 Ill. App. 3d 858" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "491 N.E.2d 1275", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1280" } ], "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448876 ], "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0506-01" ] }, { "cite": "537 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1325-26" } ], "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499398 ], "year": 1986, "pin_cites": [ { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0884-01" ] }, { "cite": "430 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5479877 ], "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0199-01" ] }, { "cite": "521 N.E.2d 159", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 229", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473461 ], "year": 1981, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0229-01" ] } ], "analysis": { "cardinality": 733, "char_count": 18658, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1593523406190863 }, "sha256": "fbdb61af048c6611fd7d730bcfe69eff1ce1984edffb79e4d50a5677e8bac775", "simhash": "1:9e6f3d660e44739c", "word_count": 2998 }, "last_updated": "2023-07-14T15:28:32.530889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GARRY D. KEMP, Plaintiff-Appellant, v. BRIDGESTONE/FIRESTONE, INC., f/k/a Firestone Tire and Rubber Company, et al., Defendants-Appellants (Bridgestone/Firestone, Inc., Third-Party Plaintiff-Appellant; John L. Simmons Construction Company, Third-Party Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE LUND\ndelivered the opinion of the court:\nPursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), plaintiff Garry Kemp (Kemp) and defendants Bridgestone/Firestone, Inc. (Firestone), and Defender Services, Inc. (Defender), appeal an order of the circuit court of McLean County granting the motion of third-party defendant John L. Simmons Construction Company (Simmons), Kemp\u2019s employer, to enforce a settlement with Kemp, finding that the settlement was in good faith and dismissing Simmons as a third-party defendant. We reverse.\nKemp filed a workers\u2019 compensation claim against Simmons for an injury allegedly sustained on March 15, 1987. In 1988, he filed a common law action against Firestone and Defender, alleging that their negligence caused his injuries. Firestone and Defender both filed third-party complaints against Simmons pursuant to the Illinois Contribution Act (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Thereafter, Kemp obtained a voluntary dismissal of the case.\nKemp and Simmons entered into negotiations to settle the workers\u2019 compensation case. Those negotiations culminated in a March 30, 1992, letter from Simmons\u2019 counsel, Francis Brady, to Kemp\u2019s counsel, Wayne Harvey, offering a lump-sum payment to Kemp representing 25% loss of use of the man, plus waiver of 15% of Simmons\u2019 \u201coutstanding lien.\u201d By letter dated April 14, 1992, Harvey forwarded blank settlement contracts to Brady which had been signed by Kemp, and asked Brady to prepare the contracts \u201cper our agreement.\u201d When completed, the settlement agreement, which used the Illinois Industrial Commission (Industrial Commission) form \u201cSettlement Contract Lump Sum Petition and Order,\u201d did not mention the 15% lien waiver. The terms of settlement were described in the contract as follows:\n\u201cRespondent to pay and petitioner to accept $36,701.25 in full settlement of all claims under the [Workers\u2019] Compensation Act for injuries allegedly incurred on or about 3/13/87 [and] 3/14/87[,] including any results, developments^] or sequelae, fatal or non[]fatal, allegedly resulting from such accidental injuries. Issues exist as to whether such injuries are compensable, and this settlement is made to settle these issues. The settlement includes liability for temporary total compensation and all medical, surgical[,] and hospital expenses incurred or to be incurred allegedly resulting from the accidental injury, for all of which the petitioner assumes responsibility. Review under Sections 19(h) and 8(a) is waived by the parties. The settlement represents: 25% loss of use of the man. Parties further expressly agree that any bills not heretofore paid and which are outstanding (whether known or unknown) hereby become, and shall remain, exclusively the responsibility of petitioner and he, and/or his representatives^] shall save and hold harmless respondent from such obligations.\u201d\nThe gross amount due to Kemp under the settlement was $36,701.25. It was established that Simmons had paid an additional $156,198.18 in benefits to Kemp, for a total amount paid in workers\u2019 compensation benefits of $192,899.43.\nOn April 9, 1992, Kemp refiled his lawsuit in the instant case against Firestone and Defender, and those defendants filed third-party complaints against Simmons, seeking contribution. Sometime after the settlement of the workers\u2019 compensation case was agreed upon (it is not clear from the record exactly when), Brady sent Harvey a document entitled \u201cWorker\u2019s Compensation Subrogation Agreement\u201d for Kemp\u2019s signature. The parties to that document were Kemp and Continental Casualty Company (Continental), insurance carrier and subrogee of Simmons. In that document, Continental agreed to forego enforcement of 15% of its \u201cnet recoverable Worker\u2019s Compensation lien\u201d (described as being equivalent to $21,701.19) as to any possible recovery by Kemp from third persons who may be liable for injuries sustained in the course of his employment, in return for a termination of liability in a common law action. The agreement further calculated the amount of the lien Continental would be allowed to enforce as $122,973.39, less a pro-ration of costs incurred by Kemp pursuant to law. Kemp refused to sign this document. The parties nonetheless concluded the settlement, which was approved by the Industrial Commission on June 30, 1992.\nContinental was allowed to intervene in the instant case to claim a lien on any recovery Kemp might receive for amounts it paid to him in the workers\u2019 compensation case. Continental claimed a lien for the full amount it paid Kemp ($192,899.43), or, in the alternative, to the extent permitted by section 5 of the Workers\u2019 Compensation Act (Compensation Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.5), by law or in equity. The court entered an order allowing the intervention and granting the prayer of the petition.\nSimmons filed separate identical motions as to Firestone and Defender, asking the court to enforce the settlement with Kemp, find the settlement was in good faith, and dismiss Simmons as a third-party defendant.\nIn its motion, Simmons alleged that (1) the subrogation agreement was \u201cpart and parcel\u201d of the settlement agreement between it and Kemp; (2) a partial waiver of a workers\u2019 compensation lien is sufficient consideration to support a good-faith finding; (3) by agreeing to the terms of the settlement agreement in order to persuade Simmons to submit the settlement contract for approval by the Industrial Commission, Kemp had caused Simmons to rely on his representations to its detriment and that Kemp was estopped from allowing a third-party action to proceed against Simmons; and (4) although a written settlement agreement was contemplated but not executed because of Kemp\u2019s recalcitrance, the terms of the settlement were clear and could not be unilaterally repudiated by Kemp. Attached to the motion was an affidavit of Brady, stating that the agreement regarding the lien waiver was for Simmons to waive 15% of its \u201cnet recoverable lien\u201d and that Simmons\u2019 agreement to waive a portion of its lien was made solely to facilitate resolution of any and all issues relating to Simmons\u2019 exposure in any common law action pending or contemplated.\nKemp and Firestone filed separate responses in opposition to Simmons\u2019 motion, denying that terms of the settlement agreement had been agreed upon.\nAttached to Kemp\u2019s response was an affidavit of Harvey stating that (1) Brady did not raise the issue of a good-faith release being part of the proposed settlement at the time of his receipt of Brady\u2019s March 30, 1992, letter or at any earlier time; (2) after receipt of the completed settlement contracts and the proposed subrogation agreement, he had a telephone conversation with Brady, wherein Brady agreed the only negotiations for settlement had been in the workers\u2019 compensation case, that Harvey had previously advised Brady of Kemp\u2019s acceptance of the settlement offer, and it was not until after acceptance of the offer that Brady proposed Kemp sign any type of release other than the workers\u2019 compensation settlement contract; and (3) Kemp did not agree to any settlement of his workers\u2019 compensation claim that included any type of subrogation agreement or other release document, other than the standard form which he signed.\nAfter a hearing on Simmons\u2019 motions, the court entered a written order on January 22, 1993, granting the motions and dismissing Simmons from the instant case. In that order, the court found that (1) Simmons\u2019 counsel made a settlement offer of 25% loss of use of the man and waiver of 15% of Simmons\u2019 \u201cnet recoverable lien ($21,701.19),\u201d which was accepted by letter from Kemp\u2019s counsel dated April 14, 1992; (2) trial counsel for Kemp acknowledged at the hearing on the motions that this waiver offer was never rejected; (3) it was implicit in the portion of the offer concerning the 15% lien waiver that the waiver was being given in the workers\u2019 compensation proceeding to extinguish any possible liability of Simmons as a defendant or third-party defendant in any common law action that Kemp might reinitiate, and trial counsel for Kemp acknowledged at the hearing on the motions that Simmons\u2019 lien could only apply to a common law action recovery by Kemp; (4) Kemp\u2019s signing of the blank settlement contract, per his attorney\u2019s instructions for completion by Simmons\u2019 attorney, indicated his personal awareness of the settlement and his ratification of his attorney\u2019s acceptance of the offer; (5) the subrogation agreement, although not an explicit term of the settlement agreement, was merely a convenience and a means of facilitating a memorialization of that part of the settlement, rather than a necessary element or term of the settlement, and Kemp\u2019s refusal to sign the document cannot constitute a rejection after the fact; (6) the omission of any mention of the 15% lien waiver in the settlement agreement may be explained by the fact that the waiver related only to the common law action, rather than the workers\u2019 compensation proceeding; (7) there was a meeting of the minds between Kemp and Simmons, and a settlement agreement existed; (8) a partial lien waiver by an employer constitutes sufficient consideration for an extinguishment of tort liability and constitutes a good-faith settlement; and (9) since there is a good-faith settlement extinguishing Simmons\u2019 tort liability, Simmons should be dismissed as a party to the case as a means of enforcing settlement.\nAppellants filed motions for reconsideration. Attached to Kemp\u2019s motion was his own affidavit which stated that (1) during settlement negotiations he was aware of a request by Simmons\u2019 attorney that he execute a good-faith release as a part of the proposed settlement of the compensation case, but he refused; (2) he never extended authority to Harvey to agree that he would sign a good-faith release as a part of the settlement; (3) he never agreed to settle a claim, other than his workers\u2019 compensation claim; (4) he was aware that a partial waiver of Simmons\u2019 lien had a potential value if he recovered money from Firestone and/or Defender in this case; and (5) he would not have accepted the workers\u2019 compensation settlement of $36,701.25 without either the partial lien waiver or payment of additional money to him.\nThe court denied the motions to reconsider. However, in its order, it struck the language in its original order which stated Simmons\u2019 offer was to waive 15% of its net recoverable lien. The revised order simply stated the offer was to waive 15% of Simmons\u2019 lien.\nAppellants urge on appeal that the trial court erred in finding that (1) there was a valid settlement agreement between Simmons and Kemp, and (2) a partial waiver by Simmons of its workers\u2019 compensation lien was sufficient consideration to support a finding that the settlement was in good faith.\nSection 5 of the Compensation Act provides, in relevant part, as follows:\n\u201cDamages \u2014 Illegally employed minors \u2014 Third party liability\n* * *\n(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer\u2019s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.\nOut of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs'and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.\nIf the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.\u201d Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).\nSection 2 of the Contribution Act provides, in relevant part, as follows:\n\u201cRight to contribution\n* * *\n(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.\n(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.\u201d Ill. Rev. Stat. 1991, ch. 70, par. 302.\nThe burden of proving the existence of a settlement agreement rests upon the party seeking to enforce it. (Commonwealth Edison Co. v. Industrial Comm\u2019n (1988), 167 Ill. App. 3d 229, 233, 521 N.E.2d 159, 161.) That proof must be clear, convincing and satisfactory. In re Marriage of Parr (1981), 103 Ill. App. 3d 199, 204, 430 N.E.2d 656, 659.\nThe alleged agreement by which Kemp released Simmons from common law liability in return for the 15% waiver of Simmons\u2019 workers\u2019 compensation lien is not contained in the written settlement contract by which Kemp and Simmons settled the workers\u2019 compensation case. Nor is that agreement contained in any correspondence between the parties\u2019 attorneys. Thus, the agreement which Simmons seeks to enforce is an oral agreement. The terms of an oral agreement must be definite and certain and there must be a meeting of the minds. (Rybak v. Provenzale (1989), 181 Ill. App. 3d 884, 891, 537 N.E.2d 1321, 1325-26.) Whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact. Thus, a reviewing court will not reverse the judgment of the trial court merely because different conclusions could be drawn. In re Estate of Kern (1986), 142 Ill. App. 3d 506, 514, 491 N.E.2d 1275, 1280.\nIn this case, it was necessary for the trial court to find that a settlement agreement existed and that it was made in good faith before dismissing Simmons from the action. We hold the evidence fails to show in a clear, convincing, and satisfactory manner that there was a meeting of the minds between Kemp and Simmons, and we find that a settlement agreement did not exist.\nAs noted, the settlement contract approved by the Industrial Commission did not mention Simmons\u2019 waiver of 15% of its workers\u2019 compensation lien. Nor did it state that the waiver of this lien was given to secure a release from potential common law liability. Kemp refused to sign the subrogation agreement tendered by Simmons. Appellants find these facts significant, while Simmons argues that the waiver had nothing to do with settlement of the workers\u2019 compensation case and, therefore, it was unnecessary to include it as a term of the settlement. It also argues that Kemp\u2019s refusal to sign the subrogation agreement should not prevent a finding of a good-faith settlement. However, in addition to the omission of key terms of the settlement, Kemp\u2019s affidavit and that of his attorney stated unequivocally that the waiver was not given to secure a release of Simmons\u2019 common law liability, but rather was given to induce a settlement of the workers\u2019 compensation case itself. Simmons argues, and the trial court held, that implicit in such a waiver is the understanding that it is given to secure such a release. However, as appellants point out, it is not uncommon for an employer to waive part or all of its workers\u2019 compensation lien in order to secure a settlement of a compensation case. Undoubtedly, all terms of a settlement should be included in the settlement documents. The fact that they were not in the instant case merely serves to illustrate the lack of agreement between Kemp and Simmons as to what the lien waiver was given for. Indeed, we are not deciding here whether any offer to waive 15% of the lien was ever accepted as a part of a binding agreement. Simmons apparently believed it was securing a release from common law liability. Kemp evidently believed the lien waiver was an additional inducement to him to settle his workers\u2019 compensation case. There is nothing in the correspondence between the parties\u2019 attorneys which gives more credence to one or the other party\u2019s version of the agreement. Under such circumstances, the trial court erred in finding that a settlement agreement existed.\nIn light of the views expressed herein, we need not address appellants\u2019 contention on appeal that the trial court erred in finding that the settlement was in good faith.\nFor the reasons stated, the order of the trial court is reversed.\nReversed.\nKNECHT and GREEN, JJ., concur.", "type": "majority", "author": "JUSTICE LUND" } ], "attorneys": [ "R. Michael Henderson and David B. Collins (argued), both of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellants Bridgestone/Firestone, Inc., and Firestone Tire and Rubber Company.", "David W. Stuckel (argued), of Harvey & Stuckel, Chartered, of Peoria, for appellant Garry D. Kemp.", "Christopher L. Nyweide (argued), of Livingston, Barger, Brandt & Schroeder, of Bloomington, for other appellant.", "Mary Jo Connelly, of Sweeney & Riman, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "GARRY D. KEMP, Plaintiff-Appellant, v. BRIDGESTONE/FIRESTONE, INC., f/k/a Firestone Tire and Rubber Company, et al., Defendants-Appellants (Bridgestone/Firestone, Inc., Third-Party Plaintiff-Appellant; John L. Simmons Construction Company, Third-Party Defendant-Appellee).\nFourth District\nNo. 4\u201493\u20140250\nArgued October 20, 1993.\n\u2014 Opinion filed December 9, 1993.\nR. Michael Henderson and David B. Collins (argued), both of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellants Bridgestone/Firestone, Inc., and Firestone Tire and Rubber Company.\nDavid W. Stuckel (argued), of Harvey & Stuckel, Chartered, of Peoria, for appellant Garry D. Kemp.\nChristopher L. Nyweide (argued), of Livingston, Barger, Brandt & Schroeder, of Bloomington, for other appellant.\nMary Jo Connelly, of Sweeney & Riman, Ltd., of Chicago, for appellee." }, "file_name": "0858-01", "first_page_order": 878, "last_page_order": 886 }