{ "id": 4299810, "name": "BERTRAM GIBBS, Plaintiff-Appellant, v. TOP GUN DELIVERY AND MOVING SERVICES, INC., Defendants-Appellees", "name_abbreviation": "Gibbs v. Top Gun Delivery & Moving Services, Inc.", "decision_date": "2010-03-19", "docket_number": "No. 1\u201408\u20142986", "first_page": "765", "last_page": "774", "citations": [ { "type": "official", "cite": "399 Ill. App. 3d 765" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "440 N.E.2d 968", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 433", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448299 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "438" }, { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0433-01" ] }, { "cite": "720 N.E.2d 1108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 546", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261388 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "548" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0546-01" ] }, { "cite": "790 N.E.2d 401", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468749 ], "year": 2003, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0322-01" ] }, { "cite": "683 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 261", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456181 ], "year": 1997, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0261-01" ] }, { "cite": "906 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "\"The fact that the settlement orders in this case provided that the settlements did not affect the plaintiffs causes of action against [the principal] did not preserve them\"" } ], "opinion_index": 0 }, { "cite": "389 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4284481 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "605", "parenthetical": "\"The fact that the settlement orders in this case provided that the settlements did not affect the plaintiffs causes of action against [the principal] did not preserve them\"" }, { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/389/0595-01" ] }, { "cite": "312 N.E.2d 259", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "57 Ill. 2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406404 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0298-01" ] }, { "cite": "488 N.E.2d 332", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532120 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0191-01" ] }, { "cite": "863 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "371 Ill. App. 3d 605", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268641 ], "year": 2007, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/0605-01" ] }, { "cite": "914 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "394 Ill. App. 3d 14", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4290462 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "17" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0014-01" ] }, { "cite": "622 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 9, "year": 1993, "pin_cites": [ { "page": "528" }, { "page": "528" }, { "page": "528-29" }, { "page": "529-30" }, { "page": "528" }, { "page": "527" }, { "page": "528-29" }, { "page": "528-29", "parenthetical": "the rule \"stands regardless of whether the plaintiff's covenant not to sue the agent expressly reserves the plaintiffs right to seek recovery from the principal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "01 L 16192", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 6, "opinion_index": 0 }, { "cite": "609 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "154 Ill. 2d 347", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820635 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "355" }, { "page": "354" }, { "page": "355" }, { "page": "353-54" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0347-01" ] } ], "analysis": { "cardinality": 778, "char_count": 23756, "ocr_confidence": 0.787, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3053309285599276 }, "sha256": "7de986098ef693eceb918be8e8e4de9aa497328d99c5575262c30202286fa28f", "simhash": "1:793ccc223fce92b5", "word_count": 3776 }, "last_updated": "2023-07-14T20:57:29.923092+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BERTRAM GIBBS, Plaintiff-Appellant, v. TOP GUN DELIVERY AND MOVING SERVICES, INC., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HOWSE\ndelivered the opinion of the court:\nPlaintiff Bertram Gibbs filed a negligence action against defendants Kevin Dunigan, Top Gun Delivery and Moving Services, Inc. (Top Gun), and Harlem Furniture, Inc. (Harlem), contending they were liable for injuries plaintiff suffered when a truck Dunigan was operating crossed the centerline and struck plaintiffs vehicle. Plaintiff alleged Dunigan was acting in his capacity as an agent of Top Gun while operating the truck. In his second amended complaint, plaintiff alleged Harlem was vicariously liable for Dunigan\u2019s actions because Dunigan, as an employee of Top Gun, was delivering furniture for Harlem pursuant to a written contract between Harlem and Top Gun. After plaintiff entered into a covenant not to enforce a judgment against either Top Gun or Dunigan with Safeco, Top Gun\u2019s and Dunigan\u2019s primary insurer, the trial court granted Harlem\u2019s motion to dismiss the entire action on the basis that \u201cany settlement between the agent and the plaintiff must also extinguish the principal\u2019s vicarious liability.\u201d See American National Bank & Trust Co. v. ColumbusCuneo-Cabrini Medical Center, 154 Ill. 2d 347, 355, 609 N.E.2d 285 (1993).\nOn appeal, plaintiff contends: (1) the trial court erred in applying the American National Bank & Trust Co. rule to the \u201ccovenant not to enforce judgment\u201d agreement created in this case; (2) Harlem has waived or is estopped from asserting that the covenant agreement extinguished his liability; and (3) the trial erred in dismissing Top Gun and Dunigan from the suit. For the reasons that follow, we affirm the trial court\u2019s judgment.\nBACKGROUND\nOn December 17, 2001, plaintiff Bertram Gibbs filed a complaint against defendants Kevin Dunigan, Enterprise Leasing Co., and Top Gun, alleging plaintiff was injured when the truck Dunigan was driving crossed the centerline and struck plaintiffs vehicle. Plaintiff alleged in the original complaint that Dunigan was acting in his capacity as an agent of Enterprise and/or Top Gun while operating the truck. Top Gun admitted Dunigan was an employee at the time of the accident. Although Enterprise admitted it owned the truck Dunigan was operating, Enterprise was granted summary judgment in an agreed order on March 18, 2003, on the basis that the vehicle was leased to Top Gun and under its control when the accident occurred.\nOn May 29, 2003, plaintiff was granted leave to file an amended complaint to add Harlem Furniture, Inc. (Harlem), as an additional defendant. At the time of the accident, Dunigan, as an employee of Top Gun, was delivering furniture for Harlem pursuant to a written contract between Harlem and Top Gun. Plaintiff alleged Harlem was vicariously liable for Dunigan\u2019s actions. On October 6, 2003, Harlem filed its answer to plaintiffs second amended complaint, denying Dunigan was an agent or subagent of Harlem. Harlem did not raise a right to implied indemnification from Dunigan or Top Gun in its answer.\nOn January 23, 2008, Top Gun and Dunigan filed a motion for good-faith finding. The motion alleged that plaintiff and Safeco Insurance Co. of Illinois (Safeco), as insurers for Dunigan and Top Gun, had entered into an agreement whereby Safeco would pay $735,000 to plaintiff in exchange for a covenant not to execute or enforce judgment above $735,000 against either Safeco or the insureds. The motion noted the total liability policy limit available to Dunigan and Top Gun under the Safeco policy was $750,000. Safeco agreed to pay the remainder of the policy, $15,000, to Enterprise to settle the property damage portion of this claim. Top Gun and Dunigan alleged the agreement was given in good faith within the meaning of the Illinois Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2(c) (West 2008)).\nAttached to the motion was a document entitled \u201cCovenant Not to Execute or Enforce Judgment.\u201d Under the terms of the covenant agreement, Safeco, as Top Gun\u2019s and Dunigan\u2019s insurer, agreed to pay plaintiff $735,000. In consideration for the payment, plaintiff agreed \u201cnot to execute any judgment\u201d or \u201cassign any right to recover or execute any judgment\u201d against Safeco, Dunigan, or Top Gun. The covenant provided that upon execution of the agreement, plaintiff would:\n\u201cexecute a standard Satisfaction of Judgment [on Dunigan\u2019s and Top Gun\u2019s behalf] for any judgment and in any amount whatsoever that may be entered at the conclusion of case No. OI L 16192 and/or any refiling of the same. Said satisfaction shall be executed and delivered upon entry of judgment in case #01 L 16192 and/or any refiling of said action.\u201d\nThe covenant also provided:\n\u201cNothing is [sic] this agreement is intended to preclude Bertram Gibbs, his heirs or assigns, from executing against Defendant Harlem Furniture and/or its Insurer, Citizens Insurance on any judgment in excess of the [$735,000] paid as consideration for this agreement.\u201d\nHarlem filed a response to the motion for a good-faith finding, contending it was a named \u201cAdditional Insured\u201d under the Safeco policy. Harlem contended Safeco, as Harlem\u2019s insurer, owed a fiduciary duty of good faith not to act contrary to Harlem\u2019s interests. Harlem contended that although the covenant agreement sought to protect the interests of its named insured and Dunigan, the agreement failed to protect Harlem\u2019s interests as an additional insured.\nOn February 14, 2008, plaintiff filed a reply brief in support of the motion for a good-faith finding. Plaintiff contended that he offered to accept Safeco\u2019s policy limits in exchange for a covenant not to execute on any judgment against defendants Top Gun and Dunigan. Plaintiff explained the agreement came about after plaintiff advised Safeco that if Safeco did not offer its single limits and judgment was entered against the defendants in excess of said limits, plaintiff would attempt to satisfy such excess from Top Gun\u2019s or Dunigan\u2019s personal assets. Plaintiff contended the good-faith finding sought by Safeco \u201conly protects the insurer from an action by the Plaintiff seeking to satisfy a judgment in excess of Safeco\u2019s policy limits.\u201d Plaintiff contended Harlem received the full benefit of its status under the Safeco policy, noting \u201cthe agreed payment of the policy limits reduces any recovery Plaintiff may make against Defendant Harlem by that amount (740 ILCS 100/2(c)).\u201d\nOn February 19, 2008, Harlem filed an amended response to the motion for a good-faith finding, requesting entry of a dismissal order. Harlem contended the covenant agreement constituted a settlement agreement whereby plaintiff specifically agreed not to enforce any judgment against Dunigan and Top Gun beyond $735,000 in exchange for a payment in that amount. Relying on Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993), Harlem contended plaintiffs covenant not to enforce a judgment against Dunigan is by law an agreement not to enforce any judgment against Harlem in excess of $735,000, extinguishing Harlem\u2019s liability. Harlem was granted leave by the trial court to file a motion to dismiss under section 2 \u2014 619 of the Illinois Code of Civil Procedure (735 ILCS 5/2\u2014 619 (West 2008)).\nIn his response to Harlem\u2019s motion to dismiss, plaintiff contended the covenant between plaintiff and Safeco did not constitute a settlement. Plaintiff contended nothing in the covenant agreement limited the liability of Dunigan or Top Gun to Harlem for the full amount of any potential judgment, less setoff, under the common law theory of quasi-contractual implied indemnity. Plaintiff stressed that the covenant did not release either Dunigan or Top Gun from liability.\nFollowing a hearing, the trial court granted Harlem\u2019s motion to dismiss. The trial court found that, in effect, \u201cthe Covenant released Safeco and Defendants Dunigan and Top Gun, but attempted to preserve Plaintiffs right to pursue Defendant Harlem as Defendant Dunigan\u2019s principal,\u201d in violation of the rule established in Gilbert. On July 22, 2008, the court dismissed the entire cause of action.\nPlaintiff filed a motion to reconsider, contending the trial court failed to comprehend the difference between a covenant not to sue and a covenant not to execute. In support of the motion, plaintiff attached documents from a separate three-count declaratory judgment action filed by Harlem\u2019s insurer, Citizens Insurance Co. of America, against Safeco, Top Gun, and Dunigan. The trial court denied plaintiffs motion to reconsider. Plaintiff appeals.\nANALYSIS\nA section 2 \u2014 619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other affirmative matters that defeat the claims. 735 ILCS 5/2 \u2014 619(a)(9) (West 2008); Valdovinos v. Tomita, 394 Ill. App. 3d 14, 17, 914 N.E.2d 221 (2009). The question on review is whether a genuine issue of material fact precludes dismissal or whether dismissal is proper as a matter of law. Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613, 863 N.E.2d 743 (2007). We review a trial court\u2019s judgment on a section 2 \u2014 619 motion to dismiss de novo. Valdovinos, 394 Ill. App. 3d at 18.\nI. American National Bank & Trust Co./Gilbert Rule\nPlaintiff contends the trial court erred in dismissing the case based on the \u201ccovenant not to enforce judgment\u201d agreement between plaintiff and Safeco. Specifically, plaintiff contends the covenant agreement did not constitute a settlement that extinguished Top Gun\u2019s or Dunigan\u2019s liability in this case.\nSection 2(c) of the Illinois Contribution Act provides:\n\u201cWhen 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 that any amount stated in the release or covenant, or in the amount of consideration actually paid for it, whichever is greater.\u201d 740 ILCS 100/2(c) (West 2008).\nIn American National Bank & Trust Co., our supreme court noted that in vicarious liability cases, there is no apportionment of damages between the principal and the agent; instead, the principal has an implied, quasi-contractual right to indemnification against the agent. In light of a principal\u2019s right to indemnification, the supreme court held that \u201cif implied indemnity against an agent is not barred by a plaintiffs settlement with the agent, there is little to encourage the agent\u2019s desire to settle.\u201d American National Bank & Trust Co., 154 Ill. 2d at 354. Accordingly, the court held that where a plaintiff brings a respondeat superior claim against a principal, \u201cany settlement between the agent and the plaintiff must also extinguish the principal\u2019s vicarious liability.\u201d American National Bank & Trust Co., 154 Ill. 2d at 355, citing Bristow v. Griffitts Construction Co., 140 Ill. App. 3d 191, 488 N.E.2d 332 (1986).\nIn Gilbert, our supreme court recognized that although its decision in American National Bank & Trust Co. held a plaintiffs settlement with an agent extinguishes the principal\u2019s vicarious liability, its prior holding in Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 57 Ill. 2d 298, 312 N.E.2d 259 (1974), still renewed the principal\u2019s liability if the covenant not to sue the agent expressly reserved the plaintiffs right to seek recovery from the principal. The Gilbert court noted Edgar County Bank\u2019s result appeared to deny the employee the benefit of his covenant because he would still remain liable to the employer for indemnification. Gilbert, 156 Ill. 2d at 528, citing Bristow, 140 Ill. App. 3d at 193. After determining an agent would gain nothing for settling with a plaintiff unless the covenant not to sue also extinguished the principal\u2019s vicarious liability, the court held it could not allow this \u201ccatch-22\u201d to remain unreconciled. Gilbert, 156 Ill. 2d at 528.\nThe court determined the American National Bank & Trust Co. rule \u201cstands regardless of whether the plaintiffs covenant not to sue the agent expressly reserves the plaintiffs right to seek recovery from the principal,\u201d overruling Edgar County Bank and its progeny. Gilbert, 156 Ill. 2d at 528-29. See also Doe v. Brouillette, 389 Ill. App. 3d 595, 605, 906 N.E.2d 105 (2009) (\u201cThe fact that the settlement orders in this case provided that the settlements did not affect the plaintiffs causes of action against [the principal] did not preserve them\u201d); Casey v. Forest Health System, Inc., 291 Ill. App. 3d 261, 264, 683 N.E.2d 936 (1997). In order to avert any possible injustice or hardship, the court held the decision would apply prospectively. Gilbert, 156 Ill. 2d at 529-30.\nSimilar to the principals in Gilbert and American National Bank & Trust Co., Harlem\u2019s liability in this case depends solely on the common law doctrine of respondeat superior \u2014 that is, its alleged employment relationship with Dunigan \u2014 and not on any fault of its own. Therefore, the central issue in this case is whether the covenant agreement constituted a settlement sufficient to release Harlem \u2014 an alleged principal of Top Gun and Dunigan \u2014 from vicarious liability.\nUnder the terms of the covenant not to execute in this case, plaintiff agreed he would:\n\u201cexecute a standard Satisfaction of Judgment [on Dunigan\u2019s and Top Gun\u2019s behalf] for any judgment and in any amount whatsoever that may be entered at the conclusion of case No. 01 L 16192 and/or any refiling of the same. Said satisfaction shall be executed and delivered upon entry of judgment in case #01 L 16192 and/or any refiling of said action.\u201d\nHowever, the covenant also provided:\n\u201cNothing is [sic] this agreement is intended to preclude Bertram Gibbs, his heirs or assigns, from executing against Defendant Harlem Furniture and/or its Insurer, Citizens Insurance on any judgment in excess of the [$735,000] paid as consideration for this agreement.\u201d\nPlaintiff contends the terms of the covenant agreement indicate there was never an intention to \u201crelease\u201d or \u201cdismiss\u201d Dunigan and Top Gun from liability; nor was the covenant intended to shield Dunigan and Top Gun from any subsequent indemnification claim by Harlem. Instead, plaintiff contends Dunigan and Top Gun entered into the covenant agreement to ensure they received the full benefit of the contested Safeco insurance policy, which in effect greatly reduced both their potential liability to plaintiff in the underlying action and in any possible implied indemnity action by Harlem. Plaintiff also contends a covenant not to enforce a judgment does not constitute a \u201csettlement\u201d under Illinois law because it does not \u201crelease\u201d the defendant from liability.\nContrary to plaintiffs contention, Illinois courts have recognized covenants not to enforce judgments as \u201csettlements\u201d under section 2 of the Contribution Act. See Simpson v. Matthews, 339 Ill. App. 3d 322, 329, 790 N.E.2d 401 (2003) (\u201cDespite Simpson\u2019s and Reynold\u2019s adamancy that the agreement does not constitute a settlement, it clearly contains a promise that Simpson will not enforce a judgment against Reynolds in an amount in excess of $50,000 \u2014 \u2018you have agreed to accept that amount of money [policy limits] in full compensation of any settlement or judgment that might be rendered against my client, Alan Reynolds.\u2019 We find that the language of the agreement leaves little doubt that the agreement is a covenant not to enforce a judgment, thereby falling within section 2 of the Contribution Act\u201d). Plaintiff has provided no authority to suggest a covenant not to enforce judgment cannot be considered a \u201csettlement\u201d under Illinois law.\nMoreover, although we recognize the covenant agreement itself does not use the term \u201csettlement,\u201d we note both plaintiff and Dunigan specifically referred to the covenant agreement as a \u201cpartial settlement\u201d of the underlying action in their motions in support of a good-faith finding under the Contribution Act.\nWhen construing a settlement agreement, our duty is to effectuate the intent of the parties to the agreement. Henderson v. Roadway Express, 308 Ill. App. 3d 546, 548, 720 N.E.2d 1108 (1999). \u201cThe intent of the parties must be determined from the plain and ordinary meaning of the language of the contract, unless the contract is ambiguous.\u201d Henderson, 308 Ill. App. 3d at 548.\nIf plaintiff obtained a judgment against Harlem under the theory of respondeat superior in this case, Harlem would be entitled to indemnification from Dunigan and Top Gun under the common law theory of quasi-contractual implied indemnity. See American National Bank & Trust Co., 154 Ill. 2d at 353-54. Although plaintiff contends the covenant agreement was not intended to shield Dunigan and Top Gun from any subsequent indemnification claim, plaintiff specifically agreed to provide Dunigan and Top Gun a standard satisfaction of judgment \u201cfor any judgment and in any amount whatsoever that may be entered at the conclusion of case No. 01 L 16192 and/or any refiling of the same.\u201d (Emphasis added.) Nothing in the language of the covenant agreement itself suggests Dunigan and Top Gun intended or agreed to remain liable to Harlem in an implied indemnity action following the conclusion of the underlying case. In support of our conclusion, we note that in their reply brief in support of a motion for a good-faith finding, Dunigan and Top Gun specifically argued:\n\u201cThere is no doubt that Dunigan and Top Gun are paying an exorbitant sum of money ($730,000 \u2014 almost the full insurance policy available to them) in consideration for an agreement to dismiss them after judgment. Such an agreement allows Top Gun and Dunigan to buy peace of mind and secure their personal assets from recovery.\" (Emphasis added.)\nUnder the plain language of the covenant agreement, Top Gun and Dunigan would be entitled to a satisfaction of judgment from plaintiff \u201cfor any judgment and in any amount whatsoever\u201d at the conclusion of the underlying case. Allowing Top Gun and Dunigan to remain liable to Harlem in an implied indemnity action after plaintiff reached a settlement with the agent-defendants in the underlying case is the exact type of \u201ccatch-22\u201d situation Gilbert intended to prevent. See Gilbert, 156 Ill. 2d at 528. Because \u201c \u2018any settlement between the agent and the plaintiff must also extinguish the principal\u2019s vicarious liability,\u2019 \u201d we find the trial court did not err in granting Harlem\u2019s motion to dismiss. (Emphasis added.) Gilbert, 156 Ill. 2d at 527, quoting American National Bank & Trust Co., 154 Ill. 2d at 355. To find otherwise would leave the agent-defendants\u2019 personal assets at risk following the conclusion of the underlying case, depriving them of the full benefit of their covenant. See Gilbert, 156 Ill. 2d at 528-29. The American National Bank & Trust Co. rule applies despite the fact that the covenant agreement specifically provided the settlement did not affect plaintiffs cause of action against Harlem. See Gilbert, 156 Ill. 2d at 528-29 (the rule \u201cstands regardless of whether the plaintiff\u2019s covenant not to sue the agent expressly reserves the plaintiffs right to seek recovery from the principal\u201d); Brouillette, 389 Ill. App. 3d at 605.\nII. Waiver/Estoppel\nNotwithstanding, plaintiff contends the relief requested by Citizens, Harlem\u2019s insurer, in a separately filed declaratory judgment action waived any possible benefit Harlem may be entitled to under the American National Bank & Trust Co./Gilbert rule. Specifically, plaintiff contends count III of Citizens\u2019 declaratory action sought a declaration that Safeco owed a duty to defend and indemnify Dunigan for the claims asserted in plaintiff\u2019s negligence action. Plaintiff contends that after the covenant agreement was created, Citizens dismissed count III of the declaratory judgment action. Plaintiff contends that because the covenant agreement achieves the same result sought by Citizens in the declaratory judgment action, Harlem \u2014 Citizens\u2019 privy \u2014 has \u201cimpliedly waived or is equitably estopped from the relief requested.\u201d\n\u201c[Wjaiver applies when a party intentionally relinquishes a known right or his consent warrants an inference of such relinquishment.\u201d Northern Trust Co. v. Oxford Speaker Co., 109 Ill. App. 3d 433, 438, 440 N.E.2d 968 (1982). \u201cEquitable estoppel is defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in chancery, from asserting rights which might otherwise have existed as against another person who has, on good faith, relied upon such conduct and has been led thereby to change his position for the worse.\u201d Northern Trust Co., 109 Ill. App. 3d at 438-39.\nWe fail to see how either waiver or estoppel applies in this case. We see no reason why Harlem should be precluded from arguing the American National Bank & Trust Co. rule applied to the covenant agreement in this case and extinguished Harlem\u2019s liability simply because Harlem\u2019s insurer, without Harlem\u2019s direct involvement, sought a declaration in a separately filed declaratory judgment action that Safeco had a duty to defend and indemnify Dunigan. We find plaintiffs estoppel and waiver contentions are without merit.\nIII. Dismissal of Dunigan and Top Gun\nPlaintiff also contends the trial court erred in dismissing Dunigan and Top Gun from the suit. We note, however, that under the terms of the covenant agreement, plaintiff agreed he would:\n\u201cexecute a standard Satisfaction of Judgment [on Dunigan\u2019s and Top Gun\u2019s behalf] for any judgment and in any amount whatsoever that may be entered at the conclusion of case No. 01 L 16192 and/or any refiling of the same. Said satisfaction shall be executed and delivered upon entry of judgment in case #01 L 16192 and/or any refiling of said action.\u201d (Emphasis added.)\nSection 2 \u2014 619(a)(9) provides involuntary dismissal is appropriate where \u201cthe claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 2008).\nAs the trial court properly noted, the covenant not to execute or enforce judgment at issue in this case essentially released defendants Dunigan and Top Gun from any liability in the underlying negligence suit in exchange for $735,000. Plaintiff specifically agreed \u201cnot to assign any right to recover or execute any judgment against\u201d Safeco, Dunigan, and Top Gun under the terms of the covenant. In effect, the covenant terminated all matters in controversy in the negligence action between Gibbs, Safeco, Dunigan, and Top Gun. After the trial court properly determined Harlem\u2019s vicarious liability for Dunigan\u2019s conduct was also extinguished by the covenant agreement under the American National Bank & Trust Co./Gilbert rule, a trial based solely on Top Gun\u2019s and Dunigan\u2019s potential individual liability in the negligence action would have proved meaningless.\nBecause any potential judgment plaintiff could have obtained against either Dunigan or Top Gun individually as defendants in the underlying suit would have been automatically satisfied by the terms of the covenant agreement in this case, we find the trial court did not err in granting Harlem\u2019s motion to dismiss the case in its entirety under section 2 \u2014 619(a)(9).\nCONCLUSION\nWe affirm the trial court\u2019s judgment.\nAffirmed.\nTOOMIN, PJ., and LAVIN, J., concur.", "type": "majority", "author": "JUSTICE HOWSE" } ], "attorneys": [ "Caren Schulman, of Chicago, for appellant.", "Law Offices of Loretta M. Griffin, of Chicago (Loretta M. Griffin, of counsel), for appellees." ], "corrections": "", "head_matter": "BERTRAM GIBBS, Plaintiff-Appellant, v. TOP GUN DELIVERY AND MOVING SERVICES, INC., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201408\u20142986\nOpinion filed March 19, 2010.\nCaren Schulman, of Chicago, for appellant.\nLaw Offices of Loretta M. Griffin, of Chicago (Loretta M. Griffin, of counsel), for appellees." }, "file_name": "0765-01", "first_page_order": 781, "last_page_order": 790 }