{ "id": 126420, "name": "LANNIE C. KIM, Indiv. and as Special Adm'r of the Estate of John Paul Kim, Deceased, Plaintiff-Appellee, v. ALVEY, INC., Defendant and Third-Party Plaintiff-Appellant (Kraft Foods, Inc., Third-Party Defendant-Appellee; Sverdrup Corporation, Defendant)", "name_abbreviation": "Kim v. Alvey, Inc.", "decision_date": "2001-03-30", "docket_number": "No. 1 \u2014 99\u20142523", "first_page": "657", "last_page": "674", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 657" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "529 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. 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KIM, Indiv. and as Special Adm\u2019r of the Estate of John Paul Kim, Deceased, Plaintiff-Appellee, v. ALVEY, INC., Defendant and Third-Party Plaintiff-Appellant (Kraft Foods, Inc., Third-Party Defendant-Appellee; Sverdrup Corporation, Defendant)." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nDefendant and third-party plaintiff Alvey, Inc. (Alvey), appeals from orders of the circuit court: (1) entering judgment on a jury verdict in favor of plaintiff Lannie Kim; (2) finding, on plaintiffs motion to enforce settlement agreement between plaintiff and Alvey, a binding settlement and enforcing that agreement; (3) approving the distribution of settlement proceeds; and (4) allowing third-party defendant Kraft Foods, Inc. (Kraft), to waive its workers\u2019 compensation lien, granting Kraft\u2019s motion to dismiss Alvey\u2019s third-party complaint, and dismissing Alvey\u2019s posttrial motion seeking a directed verdict, judgment notwithstanding the verdict, vacatur of the jury verdict and entry of judgment in its favor, or a new trial, as moot. On appeal, Alvey contends that the trial court erred in considering Kraft\u2019s post-trial motion seeking to dismiss Alvey\u2019s third-party complaint because the motion was untimely, and the trial court erred in dismissing Alvey\u2019s third-party complaint without awarding Alvey a credit for Kraft\u2019s liability. Alternatively, Alvey contends that the trial court erred in finding that the parties had reached a binding oral settlement agreement or that the trial court erred in denying as moot Alvey\u2019s posttrial motion or that the trial court erred in determining that Alvey was not entitled to a credit in the amount of Kraft\u2019s workers\u2019 compensation lien against the jury verdict. For the reasons set forth below, we affirm.\nSTATEMENT OF FACTS\nWhile working at a Nabisco plant (now Kraft), John Paul Kim\u2019s neck was crushed in a pinch-point on a palletizing machine manufactured by Alvey. Plaintiff Lannie Kim (Kim), John\u2019s wife, filed a complaint against Alvey and Sverdrup Corporation, also involved in the manufacture of the machine, on behalf of herself individually and as special administrator of the estate of her husband, alleging wrongful death and survival actions on the bases of negligence and products liability. Alvey, in turn, filed a third-party complaint against Kraft, John\u2019s employer, for contribution.\nFollowing a trial on plaintiffs complaint, the jury returned a verdict on January 27, 1999, finding for Kim against Alvey, and for Alvey against Kraft. The jury awarded Kim $2,250,000. The jury apportioned liability as follows: John, 25% negligent; Alvey, 25% negligent; and Kraft, 50% negligent. The trial court entered judgment on the jury verdict the same day. The trial court also entered an order amending the verdict, adding $28,884 for medical and funeral expenses. Based on the jury apportionment of liability, Kraft was obligated to pay $854,581 under the jury verdict. Kraft\u2019s workers\u2019 compensation lien, although not finally determined, was alleged to be approximately $396,000.\nOn January 28, 1999, Alvey\u2019s attorney, Thomas Doell, offered $1.5 million to plaintiffs attorney, Shawn Kasserman, to settle the matter. To that end, correspondence was exchanged on January 29. Kasserman wrote to Alvey\u2019s insurance adjuster, Laurie Sacchitella, confirming the settlement for $1.5 million and requesting a check by February 2. Deborah Nico, Kraft\u2019s counsel, advised Sacchitella that Kraft did not want its name on the settlement draft. A dispute subsequently arose between Kasserman and Doell as to the settlement. It was Doell\u2019s belief that the amount of Kraft\u2019s workers\u2019 compensation lien would be set off from the $1.5 million settlement amount. Kasserman did not agree.\n. On February 2, plaintiff filed an emergency motion to enforce the settlement. At the hearing on the motion on the same day, Alvey argued that the settlement amount was gross, not net, and that the parties agreed to work out the workers\u2019 compensation lien later. Kraft\u2019s counsel argued that Kraft could waive its workers\u2019 compensation lien at any time which would satisfy its obligation and extinguish its liability on the contribution claim. Following the hearing, the trial court entered an order requiring Alvey\u2019s insurance carrier to deposit its check with the clerk of the court and continued the case.\nOn February 26, Alvey filed a posttrial motion seeking a directed verdict or judgment notwithstanding the verdict in its favor, vacatur of the jury verdict and entry of judgment in its favor, or a new trial. On March 2, Kraft filed a motion requesting that the court dismiss Alvey\u2019s third-party complaint and accept a waiver of its workers\u2019 compensation lien. On March 11, Alvey filed a motion to dismiss plaintiffs motion to enforce the settlement. On the same day, Alvey also filed its response to Kraft\u2019s motion in which it contended that Kraft\u2019s motion was untimely, that Kraft failed to raise the lien issue before, and that Kraft never timely raised its alleged affirmative defense to limit the amount of setoff to its workers\u2019 compensation lien as required pursuant to Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023 (1991), and, therefore, waived it.\nOn March 24, the trial court denied Alvey\u2019s motion to dismiss Kraft\u2019s motion and ordered that an evidentiary hearing be held on plaintiff\u2019s motion to enforce settlement. On the same day, plaintiff filed a petition to approve distribution of the settlement proceeds. This motion was later granted, on May 25, at which time the trial court dismissed plaintiffs complaint against Alvey.\nOn April 9, after a series of continuances, an evidentiary hearing was held on plaintiffs motion to enforce the settlement. The parties first agreed that the depositions that had been taken of Sacchitella, Kasserman, and Nico would stand as evidentiary depositions. Alvey then presented its arguments to the court, contending that Kasserman negotiated with its adjuster (Sacchitella), who was unrepresented by counsel and who did not know the mechanics of liens, and arguing that Kraft could not waive its lien because it did not know the amount of the lien and it had failed to file a timely posttrial motion. Doell, Kasserman, and Sacchitella also testified at the hearing. Kasserman\u2019s and Sacchitella\u2019s testimony was consistent with that given in their respective depositions, although the deposition testimony provided greater detail.\nDoell\u2019s testimony at the hearing was basically that there was more to the agreement than payment of $1.5 million \u201cflat.\u201d According to Doell, the offer was dependent upon recovering the amount of Kraft\u2019s workers\u2019 compensation lien.\nIn substance, Kasserman\u2019s testimony was that the offer and agreement was $1.5 million with no credit or set off. Kasserman stated that there were no discussions between either him and Doell or him and Sacchitella concerning the lien, a setoff, or paying the money back. He did state, however, that prior to beginning settlement negotiations with Doell, the lien was mentioned. Specifically, Kasserman stated that he asked Doell if Doell was concerned that Kraft might waive the lien out from under Doell, and Doell stated that Kraft could not do that because Alvey had a judgment against Kraft. According to Kasserman, the only terms of the settlement were that Alvey would pay $1.5 million and the check would be delivered to Kasserman\u2019s office by the end of the business day on Tuesday, February 2.\nSacchitella, Alvey\u2019s insurance adjuster, testified, in summary, that when she and Doell discussed the settlement on Thursday January 28, it was $1.5 million gross, that Doell advised her not to worry about the lien, and that Doell told her the lien was to be worked out the next week either via a credit or payment from Kraft. Sacchitella stated that she did not know how she was to get the money back but \u201calways expected to\u201d to get it back. According to her, recovery of the amount of the workers\u2019 compensation lien was very important.\nPursuant to the parties\u2019 agreement, the trial court, prior to ruling on plaintiffs motion to enforce the settlement agreement, considered both Kasserman\u2019s and Sacchitefla\u2019s deposition testimony, which again was consistent with the above-summarized testimony, along with the deposition testimony of Deborah Nico, Kraft\u2019s attorney. Nico testified at her deposition that she spoke with both Doell and Kasserman on Friday, January 29. Nico believed she first told both Doell and Kasserman that Kraft would waive its lien and thereafter both stated that they were trying to settle the case. Nico stated that she specifically told Doell that Kraft was going to waive its lien and he replied, \u201cFine. No problem.\u201d On Monday, February 1, Nico received a call from Doell. She got the idea that Doell wanted a check from Kraft in the amount of its workers\u2019 compensation lien, but advised Doell that Kraft had waived its lien and that was the extent of Kraft\u2019s obligation. Nico further stated that she got the impression that Doell was not familiar with the effect of a lien waiver and that Doell realized, for the first time in his conversation with her on Monday, what had happened regarding the issue of a setoff of Kraft\u2019s lien, e.g., there would be no credit or set off from the $1.5 million settlement.\nOn April 12, the trial court issued its decision, finding that there was a meeting of the minds and it was not of the opinion that the settlement offer was conditioned upon Alvey receiving a credit or set-off of Kraft\u2019s lien. Accordingly, the court ordered enforcement of the settlement agreement and release of the check to plaintiff.\nOn June 4, Alvey filed a memorandum in opposition to Kraft\u2019s motion seeking a dismissal of Alvey\u2019s third-party complaint and acceptance of its lien waiver. On June 16, the trial court heard arguments on Kraft\u2019s motion, at which time only Kraft\u2019s and Alvey\u2019s attorneys were present. The trial court noted that Alvey had no judgment against Kraft, disagreeing with Alvey\u2019s argument that judgment had been entered on Alvey\u2019s counterclaim. The court then issued its opinion, allowing Kraft to waive its workers\u2019 compensation lien and granting Kraft\u2019s motion to dismiss Alvey\u2019s third-party complaint. The court further concluded that Alvey\u2019s posttrial motion was moot by virtue of the court\u2019s decision on April 12, 1999, at which time the court had found a valid settlement agreement between plaintiff and Alvey. This appeal followed.\nANALYSIS\nI. Kim\u2019s Motion to Dismiss Appeal\nSubsequent to the filing of this appeal, Kim filed a motion to dismiss the appeal based on lack of jurisdiction over those portions of the appeal that relate to the claims against Kim. We took the motion with the case. In her motion, Kim alleges that the trial court\u2019s April 12, 1999, order enforcing the settlement was a final and appealable order. Kim argues that Alvey was required, but failed, to appeal the April 12 order within 30 days pursuant to Supreme Court Rule 304(a).-155 111. 2d R. 304(a).\nAlvey argues that Rule 304(a) is not applicable because the April 12 order was not a final judgment and it did not contain the requisite language to make the order immediately appealable. According to Alvey, Kim\u2019s claims against Alvey were not finally disposed of until May 25 when the trial court dismissed Kim\u2019s complaint against Alvey.\n\u201cIn Illinois, a judgment is considered final only if it \u2018finally disposes of the rights of the parties either upon the entire controversy or upon some definite and separate branch thereof.\u2019 [Citation.] A final judgment \u2018decides the controversy between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with the execution.\u2019 [Citation.]\u201d Pempek v. Silliker Laboratories, Inc., 309 Ill. App. 3d 972, 978, 723 N.E.2d 803 (1999).\nWe find that the May 25, 1999, order was a final order as to the claims between Alvey and Kim, disposing of all litigation and claims between them. There was nothing left to do but enforce the judgment, which the trial court did in the same order by mandating the release of the settlement draft to Kim. However, the May 25 order did not dispose of the claims between Alvey and Kraft. Alvey\u2019s counterclaim remained pending until June 16, 1999. Because the May 25 order disposed of less than all the claims involved in the lawsuit, appellate jurisdiction would only exist pursuant to Supreme Court Rule 304(a), which requires an express finding by the trial court that there is no just reason to delay enforcement or appeal or both. There was no such finding by the trial court in the instant case. Because \u201cthis case is a multiparty action, and the trial court did not include Rule 304(a) language,\u201d there would be no appellate court jurisdiction from an appeal from the May 25 order. See Puleo v. McGladrey & Pullen, 315 Ill. App. 3d 1041, 1046, 735 N.E.2d 710 (2000). Thus, the claims raised before the trial court were not appealable until the trial court entered its order on June 16, disposing of all claims in the litigation. Accordingly, we deny Kim\u2019s motion to dismiss this appeal.\nII. Trial Court\u2019s Jurisdiction Over Kraft\u2019s Posttrial Motion\nAlvey contends that the trial court lacked jurisdiction over the issues raised in Kraft\u2019s posttrial motion because Kraft failed to timely file the motion. According to Alvey, pursuant to section 2 \u2014 1202 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1202 (West 1998)), Kraft had until February 26 to file its posttrial motion but did not file it until March 2 and, therefore, the trial court lost jurisdiction to consider the motion and the judgment entered against Kraft on January 27 \u201cstands.\u201d\nKraft contends that the trial court had jurisdiction. According to Kraft, section 2 \u2014 1202 is not applicable because Kraft\u2019s motion was based on Kraft\u2019s waiver of its workers\u2019 compensation lien, which was a procedural rather than a substantive motion attacking the judgment and, therefore, it was not a posttrial motion. According to Kraft, its motion did not seek to preserve or correct any errors committed by the trial court, nor did it seek to attack the judgment; Kraft only sought to enforce its legal right to extinguish its contributory liability by waiving its workers\u2019 compensation lien.\nWe briefly note that the trial court\u2019s ruling, that because Alvey filed a timely posttrial motion Kraft was excused from timely filing a posttrial motion, is erroneous. Illinois law is clear that the fact that one party files a timely posttrial motion does not excuse another party\u2019s obligation to file its posttrial motion within the statutory 30-day period after entry of judgment. Burnidge Corp. v. Stelford, 309 Ill. App. 3d 576, 579, 723 N.E.2d 394 (2000).\nWith respect to the 30-day time limit for filing a motion after entry of judgment, in Star Charters v. Figueroa, 192 Ill. 2d 47, 733 N.E.2d 1282 (2000), the Illinois Supreme Court held that a defendant\u2019s posttrial motion requesting a setoff from amounts paid by other defendants pursuant to a settlement agreement need not be filed within 30 days after entry of judgment. The supreme court held:\n\u201c[A] defendant\u2019s request for setoff to reflect amounts paid by settling defendants seeks not to modify, but rather to satisfy, the judgment entered by the trial court. [Citations.] Such a request does not arise as a result of trial, but is instead in the nature of a supplementary or enforcement proceeding within the inherent power of the judgment court. Because the request is not a motion directed against the judgment, it is not subject to the 30-day time limit applicable to post-trial motions.\u201d (Emphasis in original.) Star Charters, 192 Ill. 2d at 48-49.\nIn Jackson v. Polar-Mohr, 115 Ill. App. 3d 571, 450 N.E.2d 1263 (1983), an employer filed a petition to intervene in its employee\u2019s lawsuit against a negligent tortfeasor defendant. Following a jury verdict in the plaintiffs favor against the defendant, both the plaintiff and the defendant filed timely posttrial motions. In his motion, the plaintiff sought to dismiss the petition to intervene. The trial court granted the motion on the basis that the employer had failed to file anything with the court within 30 days of judgment to cause the court to act on the petition to intervene. Jackson, 115 Ill. App. 3d at 573. The Jackson court reversed, holding that the trial court erred in denying the employer relief because the employer did not need to file a posttrial motion within the 30-day period pursuant to section 2 \u2014 1202. Specifically, the court stated:\n\u201cSince the issue before the trial court did not concern trial error but rather a distinct and collateral claim by an intervening party, section [2 \u2014 1202] does not apply. [The employer] [does] not seek to challenge the validity or correctness of the judgment, but simply to assert its lien on the proceeds of that judgment.\u201d Jackson, 115 Ill. App. 3d at 573.\nWhile none of these cases involve the specific facts before this court, they are instructive. In its motion, Kraft sought to waive its workers\u2019 compensation lien and to dismiss Alvey\u2019s third-party complaint. By virtue of this motion, Kraft sought to satisfy the judgment entered against it on January 27 and extinguish its contributory liability. Kraft did not seek to vacate or correct the judgment. Based on Star Charters, Siegel, and Jackson, Kraft was not required to file its motion within 30 days after entry of the judgment on the jury\u2019s verdict in order for the trial court to have jurisdiction.\nBased on the foregoing, we conclude that the trial court had jurisdiction over Kraft\u2019s motion.\nIII. Propriety of Trial Court\u2019s Decision Allowing Kraft to Waive Its Lien and Dismissing Alvey\u2019s Third-Party Complaint\nAlvey next contends that Kraft waived its alleged affirmative defense to limit the amount of setoff to its workers\u2019 compensation lien pursuant to Kotecki by failing to raise it prior to judgment. Alvey argues that the Kotecki setoff limit is an affirmative defense that is treated as any other affirmative defense; if it is not raised, it is waived. Alvey maintains that because Kraft first raised its defense in its post-trial motion, it waived the issue.\nIn Kotecki, the court held that an employer is liable for contribution to a third party only to the extent of its \u201cworkers\u2019 compensation liability.\u201d Kotecki, 146 Ill. 2d at 165. While several cases have referred to the Kotecki limit as an affirmative defense (Christy-Foltz, Inc. v. Safety Mutual Casualty Corp., 309 Ill. App. 3d 686, 688, 722 N.E.2d 1206 (2000); Duncan v. Church of the Living God, 278 Ill. App. 3d 588, 594, 662 N.E.2d 1371 (1996)), we do not agree with Alvey that if the Kotecki limit or workers\u2019 compensation lien is not raised prior to trial as an affirmative defense, it is waived.\nWe find LaFever v. Kemlite Co., 185 Ill. 2d 380, 706 N.E.2d 441 (1998), directly on point. In LaFever, the plaintiff sued the defendant Kemlite for injuries he sustained while working on Kemlite\u2019s premises. Kemlite then filed a third-party complaint against Banner Western Disposal (Banner), the plaintiffs employer. The jury returned a verdict in the plaintiffs favor in the amount of $1,122,261. The jury further found that Banner was liable to Kemlite on the third-party complaint. Banner filed a posttrial motion seeking to waive its workers\u2019 compensation lien to satisfy its contributory liability. The trial court granted Banner\u2019s motion and dismissed the third-party complaint. LaFever, 185 111. 2d at 387.\nThe appellate court reversed the trial court\u2019s order granting Banner\u2019s posttrial motion, finding that the statutory lien could not be waived after entry of the jury verdict. LaFever, 185 Ill. 2d at 388. The supreme court reversed, noting that an employer can waive the lien it holds on any third-party recovery and avoid liability for contribution to other tortfeasors. LaFever, 185 Ill. 2d at 399. The supreme court further noted that whether Banner waived the hen or not, its contributory liability was always limited to the amount of its workers\u2019 compensation lien. Specifically, the LaFever court stated: \u201cWhether Banner waived its hen before or after the verdict, Kotecki and its progeny limited the maximum contribution liability for Banner to the amount paid by Banner in workers\u2019 compensation.\u201d LaFever, 185 Ill. 2d at 404. The LaFever court thus concluded that it was proper for Banner to raise its lien in a posttrial motion and to waive the lien after the jury verdict. LaFever, 185 Ill. 2d at 405.\nLaFever clearly allows an employer to raise its lien in a post-trial motion. Alvey\u2019s argument that the Kotecki setoff limit is as an affirmative defense that must be raised prior to trial is not supported by existing case law. We therefore reject Alvey\u2019s waiver argument and hold that the trial court properly allowed Kraft to raise and waive its hen.\nBased on the foregoing, we conclude that the trial court had jurisdiction over Kraft\u2019s motion to waive its lien and dismiss Alvey\u2019s third-party complaint.\nIV Settlement Agreement\nAlvey next contends that the trial court erred in finding that Alvey and plaintiff entered into an enforceable settlement agreement.\nIllinois encourages the settlement of claims and, to that end, settlement agreements may be oral. Stone v. McCarthy, 206 Ill. App. 3d 893, 901, 565 N.E.2d 107 (1990). Enforcement and construction of settlement agreements is governed by the law of contracts. Lampe v. O\u2019Toole, 292 Ill. App. 3d 144, 146, 685 N.E.2d 423 (1997). \u201cAs with any contract, there must be an offer, an acceptance, and a meeting of the minds on terms.\u201d Lampe, 292 Ill. App. 3d at 146. An oral settlement agreement is enforceable absent fraud or mistake (Lampe, 292 Ill. App. 3d at 146) or duress (Johnson v. Hermanson, 221 Ill. App. 3d 582, 585, 582 N.E.2d 265 (1991)). However, a unilateral mistake does not render the agreement unenforceable (Cole Taylor Bank v. Cole Taylor Bank, 224 Ill. App. 3d 696, 708, 586 N.E.2d 775 (1992); Johnson, 221 Ill. App. 3d at 585)) and has no effect on the validity of the agreement itself (In re Marriage of Lorton, 203 Ill. App. 3d 823, 826, 561 N.E.2d 156 (1990)). Whether the parties intended any condition as a term is a question of fact. Lampe, 292 Ill. App. 3d at 147. The determination of whether a valid settlement occurred is in the trial court\u2019s discretion and we will not reverse its decision unless it is contrary to the manifest weight of the evidence, e.g., unless an opposite conclusion is clearly apparent. Webster v. Hartman, 309 Ill. App. 3d 459, 460, 722 N.E.2d 266 (1999).\nAlvey\u2019s first argument against enforcement of the settlement agreement is that Kasserman improperly renegotiated with Sacchitella without Doell\u2019s consent, review, or approval, and that Rule 4.2 of the Rules of Professional Conduct (134 Ill. 2d R. 4.2) prohibits an attorney (Kasserman in this case) from communicating with a party represented by counsel (Sacchitella), which Kasserman violated on January 29, 1999, by renegotiating the settlement with Sacchitella. According to Alvey, Kasserman\u2019s \u201cduplicitous conduct was clearly intended to trick Ms. Sacchitella\u201d \u2014 a layperson who was unaware of the mechanics of liens and the legal import of Kasserman\u2019s statements. Thus, Alvey maintains that because of Kasserman\u2019s inappropriate conduct, which was \u201ccontrary to public policy and morals,\u201d the settlement agreement should not have been enforced.\nWe find Alvey\u2019s argument incredulous. It is customary in the personal injury field for plaintiffs\u2019 attorneys to negotiate for settlement with insurance adjusters and other relevant personnel without defense counsel\u2019s presence or involvement. Sacchitella admitted in her deposition that she had authority to negotiate without Doell and, in fact, had done so on numerous occasions throughout these proceedings. We also find Alvey\u2019s argument, that Sacchitella was \u201ctrickable\u201d because she was a \u201clayperson\u201d and not an attorney and was without pertinent knowledge, absurd. As plaintiff points out, Sacchitella held a high position with the insurance carrier and had been in the business for at least 18 years. While she claimed not to know the \u201cmechanics\u201d of hens, it is clear from her testimony that she knew of the existence of Kraft\u2019s workers\u2019 compensation lien and knew that third-party tortfeasors generally have a right to a credit or setoff of the amount paid by the workers\u2019 compensation carrier to a plaintiff. Sacchitella could have raised the lien issue in her discussions with Kasserman. In essence, Alvey is accusing plaintiffs counsel of deceptive or fraudulent conduct. This is very disturbing to us and will be further addressed below.\nAlvey next argues that the parties did not have a meeting of the minds \u2014 Doell and Sacchitella believed that the $1.5 million figure was gross and that it would be reduced or set off by the amount of Kraft\u2019s workers\u2019 compensation lien, whereas Kasserman believed that the amount was net. Based upon a thorough review of the deposition and hearing testimony with respect to settlement negotiations, it is abundantly clear that a setoff or credit as a condition of the settlement was never mentioned by either Doell or Sacchitella in any of the discussions with Kasserman. Since Kasserman did mention the hen to Doell prior to the time Doell made his offer to Kasserman, if Doell believed that a setoff or credit was a condition of the settlement offer, he beyond question would have said something to Kasserman when he made the offer, particularly given the fact that the lien had been mentioned just prior to the offer. Further, it is also clear that Doell and Kasserman were advised, prior to settlement negotiations, that Kraft would waive its hen. Thus, if a setoff was intended to be a condition of the settlement, Doell logically would have discussed it with Kasserman. Similarly, while Sacchitella stated that the setoff or credit was important to her, she too failed to mention anything to Kasserman about a setoff or the fact that Doell advised her the lien issue would be worked out the next week. Again, if a setoff was meant to be a term of the settlement, it would be logical for Sacchitella to raise it at the time of her discussions with Kasserman. This is particularly true when the two discussed who would be named on the settlement draft.\nPlaintiffs contention that this case involves a unilateral mistake on the part of Doell has merit. It is clear from Nico\u2019s testimony that Doell was not aware of the ramifications of LaFever, nor of the effect of a hen waiver. Nico\u2019s testimony also indicates that Doell did not realize the effect of the waiver until he spoke with her on Monday. It was only at this time that Doell raised the issue.\nBased on the evidence in the record, we conclude that an opposite conclusion as to the terms of the settlement agreement is not clearly apparent in this case. There was ample evidence to support the trial court\u2019s decision that a setoff was not a condition of the settlement offers made by Doell on Thursday, January 28, and Sacchitella on Friday, January 29, and that the parties had a meeting of the minds on the material terms of the settlement agreement. Accordingly, we hold that the trial court\u2019s decision was not against the manifest weight of the evidence and, therefore, we will not disturb its finding.\nLastly, Alvey contends that plaintiff will receive a double recovery if a setoff is not allowed.\nIn Illinois, a plaintiff is entitled to only one recovery for an injury and a double recovery is against public policy and condemned. Pearson v. Stedge, 309 Ill. App. 3d 807, 813, 723 N.E.2d 773 (1999). Thus, generally, any judgment or settlement with a third party must be offset by the amount of workers\u2019 compensation benefits recovered by a plaintiff, even when the employer waives the workers\u2019 compensation lien. Eastman v. Messner, 188 Ill. 2d 404, 412-13, 721 N.E.2d 1154 (1999).\nFollowing the jury verdict here, plaintiff was entitled to $1,709,163, after reduction for plaintiffs decedent\u2019s contributory negligence. Under normal circumstances, the workers\u2019 compensation lien would be a setoff from this amount when plaintiff sought to execute on the judgment. However, we do not have normal circumstances in the instant case because the parties entered into a valid settlement agreement, which did not include a provision that the workers\u2019 compensation lien would be set off from the settlement amount.\nIn In re Salmonella Litigation, 249 Ill. App. 3d 173, 183, 618 N.E.2d 487 (1993), the court held that the double recovery doctrine \u201cshould not apply to settlements because a settlement is a contract which governs the plaintiffs recovery.\u201d In Salmonella, the plaintiffs received certain sums from their insurance carrier under their employee health benefits insurance. The plaintiffs then settled with Jewel, which claimed a lien on the insurance payments. The trial court refused to allow a hen because the settlement agreement did not expressly provide for a setoff. Salmonella, 249 Ill. App. 3d at 175. The Salmonella court agreed with the trial court, which had reasoned:\n\u201cThis is a contract case. This motion does not involve a payment required by a judgment entered against Jewel. It involves a settlement agreement negotiated by Jewel and the claimants-plaintiffs.\u201d Salmonella, 249 Ill. App. 3d at 183.\nWe find Salmonella persuasive and adopt its reasoning here. Alvey freely and voluntarily negotiated a settlement following the jury verdict, which did not provide for any setoff. Because this was a negotiated contract, which governs Alvey\u2019s payment and not a payment required pursuant to a judgment, the double recovery doctrine does not apply.\nBased on our conclusion that the parties reached a valid settlement, we need not address Alvey\u2019s further contentions that we must remand this cause for a determination on its posttrial motion and that it is entitled to a setoff from the jury verdict; both issues are moot since the jury verdict was superseded by the settlement.\nRULE 375\nNeither plaintiff nor Kraft has specifically requested sanetians, but this court may invoke Supreme Court Rule 375(b) on its own initiative where it deems it appropriate. 155 Ill. 2d R. 375(b); First Federal Savings Bank v. Drovers National Bank, 237 Ill. App. 3d 340, 344, 606 N.E.2d 1253 (1992). Rule 375 provides: \u201cIf, after consideration of an appeal or other action pursued in a reviewing court, it is determined that the appeal or other action itself is frivolous, or that an appeal or other action was not taken in good faith, for an improper purpose ***, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties.\u201d 155 Ill. 2d R. 375(b). We believe that, absent a showing by Alvey to the contrary, this appeal is frivolous and not taken in good faith but rather for an improper purpose, thus warranting sanctions. First Federal Savings Bank, 237 Ill. App. 3d at 344. Alvey\u2019s improper purpose is to correct its trial counsel\u2019s error. The insurance company gave plaintiff a check for $1.5 million which clearly stated on its face, \u201cFull and Final Settlement.\u201d On appeal, Alvey now contends that this is not what it really intended to do and that the settlement was not full and final, nor was it complete. What we have in this case is an unhappy defendant and its counsel because of an error trial counsel made. Since Doell apparently lacked knowledge of the law regarding waiver and setoff of workers\u2019 compensation liens and, therefore, failed to protect Alvey and its insurance carrier, Alvey\u2019s appellate attorneys are now attempting to ignore Doell\u2019s mistake and lack of knowledge of the law by accusing plaintiffs counsel of fraudulent conduct.\nWe further observe that Alvey\u2019s counsel, in filing this appeal, make groundless arguments to this court. Rule 375 imposes upon Alvey\u2019s counsel \u201ca good-faith duty *** to refrain from making arguments before this court that are clearly contradicted by [the] record\u201d and law. Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App. 3d 571, 581 (2000). Alvey\u2019s counsel accuse opposing counsel of fraud predicated upon Kasserman\u2019s negotiations with an experienced, high-positioned insurance director. Alvey\u2019s counsel are even bold enough to argue that plaintiffs counsel violated Rule 4.2 \u2014 a contention without any support in fact or law. Alvey isolates one negotiation session between Kasserman and Sacchitella, ignoring the prior repeated negotiations between Kasserman and Sacchitella. Clearly, insurance adjusters do not need defense counsel\u2019s permission to negotiate with a plaintiffs counsel. In fact, it is defense counsel who needs authority from an insurance carrier to negotiate a potential settlement with a plaintiff since the settlement funds ultimately come from the carrier. Alvey\u2019s argument that Kasserman acted deceptively and fraudulently is entirely unfounded. \u201cThe decision to accuse an opposing party or its counsel of perpetrating a fraud on the court is a momentous one. When the decision is made to go forward on such a charge, one would hope that the charging party was solidly armed with competent, clear, and convincing evidence supporting his theory.\u201d Sacramento Crushing Corp., 318 Ill. App. 3d at 581. Here, we are particularly disturbed that Alvey\u2019s counsel chose to accuse a fellow officer of the court of an offense possibly meriting disbarment for the sole purpose of ignoring Doell\u2019s mistake and lack of knowledge of the law, in particular, LaFever.\nBased on the foregoing, we thus order Alvey and its appellate counsel to show cause why a sanction should not be imposed on the ground that this appeal is frivolous under the standard of Supreme Court Rule 375(b). Should Alvey and its counsel fail to make such a showing, we shall consider this a basis for sanctions. See First Federal Savings Bank, 237 Ill. App. 3d at 346. Our decision on this matter is not meant to discourage attorneys from zealously representing their clients or from bringing appeals that have arguable merit. However, unless Alvey and its counsel are able to persuade us otherwise, this is not such an appeal. See First Federal Savings Bank, 237 Ill. App. 3d at 347. Accordingly, we direct Alvey and its counsel to file a brief or memorandum with this court, within 14 days of the date of the instant order, showing why we should not impose sanctions or attorney fees under Supreme Court Rule 375(b). If we decide thereafter that this appeal warrants sanctions, we shall order plaintiff to file a statement of reasonable expenses and attorney fees incurred as a result of this appeal, to which Alvey and its counsel will have an appropriate opportunity to respond. Thereafter, this court will file a supplemental opinion or order determining the amount of the sanction to be imposed upon Alvey and its counsel. See First Federal Savings Bank, 237 Ill. App. 3d at 347-48.\nCONCLUSION\nFor the reasons stated, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nHALL, EJ., and WOLFSON, J, concur.\nSverdrup was voluntarily dismissed from the suit prior to trial.\nA11 numbers have been rounded off to the nearest dollar.\nSection 5(b) of the Workers\u2019 Compensation Act gives an employer a hen on any recovery an employee obtains from a third-party tortfeasor. 820 ILCS 305/5(b) (West 1998).\nDue to page-limit constrictions, only a summary of the salient testimony of each participant in the settlement negotiations is provided.\nWe note that our decision is further supported by other case law. First, Illinois law establishes that an employer may intervene in an employee\u2019s action filed against a third-party tortfeasor \u201cat any time prior to satisfaction of judgment.\u201d (Emphasis added.) Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 914, 642 N.E.2d 834 (1994), citing 820 ILCS 305/5(b) (West 1998); Jackson, 115 Ill. App. 3d at 574. Thus, it is not necessary that a lien be raised as an affirmative defense or before trial.\nFurther, in Scott v. Industrial Comm\u2019n, 184 Ill. 2d 202, 703 N.E.2d 81 (1998), the court held that an employer is not required to intervene in an employee\u2019s action against a third-party tortfeasor so that the employer can assert its hen in order to recover amounts obtained by its employee from a third party. Scott, 184 111. 2d at 216. In fact, the employer may seek to have the Illinois Industrial Commission determine the credit to which it is entitled. In Scott, the court determined that the employer\u2019s insurance carrier properly sought a determination before the Industrial Commission as to the amount of credit it was entitled to where the third-party action had become final and the third-party tortfeasor had made settlement payments to the plaintiff since it was too late for the employer to obtain a lien in the third-party action. Scott, 184 Ill. 2d at 218.\nLastly, in Decker v. St. Mary\u2019s Hospital, 266 Ill. App. 3d 523, 639 N.E.2d 1003 (1994), the court addressed the timing of requests for setoffs, although in the context of a pretrial settlement with another defendant. In Decker, the plaintiff filed a lawsuit against the defendant doctor and the defendant hospital. Prior to trial, the plaintiff settled with the doctor for $180,000. The jury returned a verdict against the hospital for $360,000, after which the plaintiffs motion for a new trial on damages was granted. Following a new trial on the issue of damages only, the plaintiff was awarded $1 million. Decker, 266 111. App. 3d at 524. The hospital appealed, and we affirmed. Thereafter, when the plaintiff filed a motion to execute on the appeal bond, the hospital claimed it was entitled to a setoff of $180,000. The trial court denied the hospital\u2019s motion for a setoff and the defendant appealed. Decker, 266 Ill. App. 3d at 524. We affirmed. On appeal, the plaintiff had argued that the hospital had waived the issue because it failed to file an affirmative defense under section 2 \u2014 608 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 608 (West 1998)). Decker, 266 111. App. 3d at 527. We first distinguished a setoff under section 2 \u2014 608 because, under that section, a setoff is in the nature of a counterclaim. In Decker, however, the setoff was \u201cakin to the concept of satisfaction of judgment, rather than being in the nature of a counterclaim.\u201d Decker, 266 Ill. App. 3d at 527-28. In other words, the hospital claimed a \u201cmere reduction in damages.\u201d Decker, 266 Ill. App. 3d at 528. We concluded that \u201cwhile a claimed setoff [in the nature of satisfaction of a judgment] need not be pleaded as an affirmative defense, neither should the issue be one that can be raised at the execution stage.\u201d Decker, 266 Ill. App. 3d at 528. We reiterated that \u201cwhile it would be appropriate to plead this request for setoff as an affirmative defense, we do not believe it is mandatory. It must, however, be raised at some point before the judgment becomes final.\u201d Decker, 266 Ill. App. 3d at 528. Further, quoting Young Men\u2019s Christian Ass\u2019n v. Midland Architects, Inc., 174 Ill. App. 3d 966, 971, 529 N.E.2d 288 (1988), the Decker court stated that the \u201cassertion of defendant\u2019s right to setoff in a motion following the trial is appropriate and \u2018strategically advisable\u2019 \u201d (Decker, 266 Ill. App. 3d at 528), but in no case should the issue be raised later than the posttrial motion stage (Decker, 266 Ill. App. 3d at 529). The Decker court concluded that the hospital could not raise the issue because it had not done so until after the first appeal and at a time when the plaintiff was attempting to execute on the judgment. Decker, 266 Ill. App. 3d at 529.\nThese cases illustrate that an employer is not required to raise its Kotecki setoff limit or workers\u2019 compensation lien as an affirmative defense or even before a trial. Clearly, an employer may raise the issue of its liability limit in a subsequent proceeding when it is not a part of the third-party action. Decker is instructive because the workers\u2019 compensation lien is akin to the lien addressed in Decker-, the workers\u2019 compensation lien is in the nature of satisfaction of a judgment, not in the nature of a counterclaim.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Clausen Miller, P.C. (James T. Ferrini, Steven N. Novosad, Faul V Esposito, and Melinda S. Kollross, of counsel), for appellant.", "Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, Michael K. Demetrio, Shawn S. Kasserman, and Kenneth T. Lumb, of counsel), for appellee Lannie C. Kim.", "Sanchez & Daniels, of Chicago (Manuel Sanchez, Deborah L. Nico, and Darryl Tom, of counsel), for appellee Kraft Foods, Inc." ], "corrections": "", "head_matter": "LANNIE C. KIM, Indiv. and as Special Adm\u2019r of the Estate of John Paul Kim, Deceased, Plaintiff-Appellee, v. ALVEY, INC., Defendant and Third-Party Plaintiff-Appellant (Kraft Foods, Inc., Third-Party Defendant-Appellee; Sverdrup Corporation, Defendant).\nFirst District (3rd Division)\nNo. 1 \u2014 99\u20142523\nOpinion filed March 30, 2001.\nRehearing denied June 13, 2001.\nClausen Miller, P.C. (James T. Ferrini, Steven N. Novosad, Faul V Esposito, and Melinda S. Kollross, of counsel), for appellant.\nCorboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, Michael K. Demetrio, Shawn S. Kasserman, and Kenneth T. Lumb, of counsel), for appellee Lannie C. Kim.\nSanchez & Daniels, of Chicago (Manuel Sanchez, Deborah L. Nico, and Darryl Tom, of counsel), for appellee Kraft Foods, Inc." }, "file_name": "0657-01", "first_page_order": 675, "last_page_order": 692 }