Country Mutual Insurance Co. v. Olsak

2022 IL App (1st) 200695No. 1-20-0695, 1-20-0731 (cons.)
Order filed June 27, 2022
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
COUNTRY MUTUAL INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff and Counterdefendant-Appellee and ) Cook County, Illinois.
Cross-Appellant, )
)
v. ) No. 05 CH 2618
)
THOMAS OLSAK; JOSEPH PECORARO; FREMD )
SCHOOL HOCKEY CLUB; and JAMES W. ) Honorable
BALKONIS, FRANK BISKNER, WILLIAM D. ) Michael T. Mullen
DeGIRONEMO, JAMES LAPETINA, KENNETH J. ) Judge Presiding.
NORDGREN, EDWARD J. PUDLO, AND )
MATTHEW M. SPRENZEL, as Members of the )
Board of Governors of the Fremd High School )
Hockey Club, )
)
Defendants )
)
(Thomas Olsak, Individually, and as the Assignor of )
His Claims, Demands and Causes of Action to Joseph )
Pecoraro, and Joseph Pecoraro, as the Assignee under )
a Certain Settlement Agreement Dated June 26, )
2006,Defendants and Counterplaintiffs-Appellants )
and Cross-Appellees). )
JUSTICE WALKER delivered the judgment of the court, with opinion.
Presiding Justice Hyman and Justice Coghlan concurred in the judgment and opinion.
No. 1-20-0695, 1-20-0731 (cons.)
OPINION
¶1 In 1998, Thomas Olsak struck Joseph Pecoraro in the head, causing him to suffer a severe
head injury. Pecoraro filed suit naming, inter alia, Olsak and Ed Pudlo, Olsak’s stepfather, as
defendants. At the time of the incident, Pudlo had two insurance policies in effect with Country
Mutual Insurance Company. Country Mutual tendered a defense to Pudlo but did not defend Olsak
due to the allegations of intentional conduct.
¶2 In 2005, Country Mutual filed the instant action, a complaint for declaratory judgment,
seeking a finding that it was under no obligation to defend or indemnify Olsak in connection with
Pecoraro’s claim of injury. In 2006, Pecoraro and Olsak entered into a settlement agreement,
whereby Olsak assigned to Pecoraro his rights under the Country Mutual policies in exchange for
a release and discharge from all claims arising from the 1998 incident. In 2007, Olsak and Pecoraro
filed a counterclaim, asserting, inter alia, that Country Mutual breached its duty to defend Olsak
and that its failure to defend Olsak was vexatious and unreasonable under section 155 of the Illinois
Insurance Code (215 ILCS 5/155 (West 2006)).
¶3 Olsak and Pecoraro modified the 2006 agreement to include a settlement amount of $6
million in 2010. This court remanded the case for a reasonableness hearing regarding the 2010
agreement pursuant to the holding in Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141(2003). See Country Mutual Insurance Co. v. Olsak, 2014 IL App (1st) 121063-U. On remand, the
circuit court found that the 2010 modified agreement was not the product of collusion, was
supported by consideration, and was reasonable; but the circuit court also found that Country
Mutual’s total liability could not exceed its $3 million policy limits, and it entered judgment against
Country Mutual for $3 million, instead of the $6 million settlement amount. Finally, the circuit
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court did not award section 155 damages, finding that Country Mutual’s conduct was not vexatious
or unreasonable. In this consolidated appeal, Olsak and Pecoraro and Country Mutual appealed the
judgment of the circuit court. For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 On October 21, 1998, Olsak was a 17-year-old member of the Fremd High School Hockey
Club (Fremd), and Pecoraro was the head coach of the team. On that date, Olsak struck Pecoraro,
who fell to the floor unconscious, striking his head. Olsak was charged with and pleaded guilty to
battery.
¶6 Pecoraro filed a complaint against Olsak on October 13, 2000. The complaint contained a
single count for battery and named Pudlo, Fremd, and the individual members of the board of
governors of Fremd as respondents in discovery. On July 19, 2001, the respondents in discovery
were converted to defendants.
¶7 In count I of his second amended complaint, Pecoraro alleged assault and battery against
Olsak. Pecoraro alleged that Olsak, while standing behind him, struck him in the head with a closed
fist “without legal justification and with malicious intent to seriously injure.” Pecoraro claimed he
suffered permanent brain damage, including the loss of certain sensory and cognitive functions.
He further alleged that Olsak did not act in self-defense. Count II alleged negligence on the part of
Fremd and its individual board members, of which Pudlo was a member. Count III alleged
negligent parental supervision against Pudlo.
¶8 At the time of the incident, Pudlo and Desiree Pudlo, Olsak’s mother, (collectively “the
Pudlos”) had in effect with Country Mutual a homeowners insurance policy and a personal and
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professional umbrella liability policy. The homeowner’s policy had maximum liability limits of
$1 million and the umbrella policy had maximum liability limits of $2 million.
¶9 The homeowner’s policy defined the “insured” to mean “you and the following residents
of your household: 1. your relatives; and 2. persons under 21 in the care of those named above.”
The policy promised to “pay on behalf of an insured for damages caused by an occurrence resulting
from bodily injury or property damage caused by an occurrence, if the insured is legally obligated.”
The policy defined an “occurrence” as “an accident, including continuous or repeated exposure to
conditions, which results in bodily injury or property damage neither expected nor intended from
the standpoint of the insured.” Additionally, the policy specifically excluded bodily injury or
property damage “caused intentionally by or at the direction of an insured.”
¶ 10 The umbrella policy defined “insured” as the named insured and “any relative or, if
residents of the named insured’s household, any other person under the age of twenty-one in the
care of the named insured.” The policy provided that Country Mutual “agrees to indemnify the
insured for ultimate net loss in excess of the retained limit which the insured shall become legally
obligated to pay *** as damages because of personal injury or property damage.” It defined
“personal injury” as “assault and battery not committed by or at the direction of the insured, unless
committed *** for the purpose of protecting persons or property, including death resulting
therefrom, sustained by any person.” Coverage was excluded for “any act committed by or at the
direction of the insured with intent to cause personal injury or property damage.”
¶ 11 Pudlo tendered his defense to Country Mutual, and Country Mutual hired the firm of
Chilton, Yambert, Porter & Young (the “Chilton Yambert Law Firm”) to represent Pudlo
individually as to count III of Pecoraro’s amended complaint. TIG Insurance, Fremd’s insurer,
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hired an attorney to represent the board members. Pudlo also tendered the defense of Olsak to
Country Mutual, but Country Mutual denied Olsak coverage due to the allegations of intentional
conduct.
¶ 12 On November 8, 2000, Neal Napolitano, assistant general counsel for Country Mutual, sent
a denial of coverage and denial of defense letter to Olsak at the Pudlo’s home address. The letter
explained that coverage was denied on the basis that the allegations of the underlying complaint
did not fall under the policies’ definition of “occurrence” and that the intentional-acts exclusion
applied. Following its denial of coverage to Olsak, Country Mutual neither defended Olsak under
a reservation of rights, nor did it initially file a declaratory judgment action.
¶ 13 The Pudlos then independently retained the Chilton Yambert Law Firm to represent Olsak.
The Chilton Yambert Law Firm advised Country Mutual that Olsak had retained the firm. Country
Mutual did not approve or disapprove of the representation. The Chilton Yambert Law Firm, on
behalf of Olsak, answered the second amended complaint and filed affirmative defenses.
¶ 14 The circuit court dismissed count III against Pudlo with prejudice on March 13, 2002, but
Pudlo remained a defendant under the negligence count as a board member.
¶ 15 On April 18, 2003, Fremd and the individual board members filed a cross-claim against
Olsak seeking contribution. The Chilton Yambert law firm notified the Pudlos of an estimate of
fees for the balance of the case to represent Olsak. Pudlo then instructed the Chilton Yambert Law
Firm not to defend the case, but to only “monitor” it and refrain from attending depositions,
including medical depositions.
¶ 16 In June 2003, Olsak filed an affirmative defense alleging Pecoraro approached Olsak, who
“felt threatened and perceived imminent harm.”
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¶ 17 On February 4, 2004, Country Mutual retained Attorney Robert Shipley to represent Pudlo
as a board member and to monitor the case. On May 11, Shipley filed a general appearance for
Pudlo in the underlying action.
¶ 18 The Chilton Yambert Law Firm filed a motion to withdraw as Olsak’s counsel on July 7,
2004, and the motion was granted on October 8, 2004. Olsak then represented himself in the
underlying litigation from October 2004 until June 2006, when he reached a settlement with
Pecoraro.
¶ 19 On February 9, 2005, Country Mutual filed the instant action, a complaint for declaratory
judgment naming, inter alia, Olsak and Pecoraro as defendants. Country Mutual sought a
declaratory judgment that it was under no obligation to defend or indemnify Olsak in connection
with the underlying litigation or the counterclaim brought by Fremd and the board members.
Country Mutual asserted that, due to Olsak’s intentional acts, neither the homeowner’s policy, nor
the umbrella policy covered the damages, and any injuries Pecoraro sustained are specifically
excluded from coverage.
¶ 20 Stuart Kusper of Katten Muchin Rosenman, LLP, appeared for Olsak in the declaratory
judgment claim, and the circuit court dismissed all the individual board member defendants,
sua sponte, in the underlying litigation.
¶ 21 Olsak and Pecoraro settled the assault and battery suit by entering into a written settlement
agreement (2006 settlement). The agreement stated that Olsak did not have “any substantial assets
with which to pay any judgment or settlement” to Pecoraro, but that Olsak had potential claims
against Country Mutual for denying him a defense and against TIG, Fremd’s insurer. Pursuant to
the agreement, Olsak assigned to Pecoraro his rights under the Country Mutual policies and the
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policy issued by TIG to Fremd. Olsak agreed to pay Pecoraro $5000, and in exchange, Pecoraro
agreed to release and discharge Olsak from all claims arising from the 1998 incident. The
agreement further provided that Pecoraro would be entitled to seek reinstatement of his claim
against Olsak, if Olsak breached the agreement. The 2006 settlement contemplated that the amount
of Pecoraro’s damages would be determined in the future by a hearing in accord with Guillen.
Kusper represented Olsak in the negotiation of the 2006 settlement.
¶ 22 On August 28, 2006, the circuit court found that the parties had reached the 2006 settlement
in good faith and dismissed Pecoraro’s claim against Olsak. Fremd appealed the court’s finding
that the 2006 settlement was reached in good faith by asserting that the settlement amount was
inadequate. This court held that the circuit court did not abuse its discretion when it found the
agreement was in good faith. Pecoraro v. Balkonis, 383 Ill. App. 3d 1028, 1039 (2008).
¶ 23 After the settlement, Pecoraro’s attorneys, Norman Lerum and James Messineo, assumed
Olsak’s representation. Subsequently, Olsak and Pecoraro filed an answer and second amended
affirmative defenses to Country Mutual’s declaratory judgment claim.
¶ 24 On March 9, 2007, Olsak and Pecoraro filed a three-count counterclaim against Country
Mutual. In counts I and II of the counterclaim, they asserted, inter alia, that Country Mutual
breached its duty to defend Olsak in the underlying action by failing to disclose to Olsak the
conflict of interest between Olsak and Pudlo and by failing to advise Olsak that he could retain
independent counsel at Country Mutual’s expense. They further asserted that Country Mutual was
estopped from raising any policy defenses that it might otherwise have had due to its conduct.
Olsak and Pecoraro requested an evidentiary hearing as to the amount of damages Pecoraro was
entitled to receive for his injuries and requested judgment in favor of Pecoraro and against Country
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Mutual for compensatory and punitive damages. Count III alleged that Country Mutual’s conduct
in failing to defend Olsak or advise him of the conflict of interest was vexatious and unreasonable
and requested attorney fees and costs pursuant to section 155 of the Insurance Code.
¶ 25 Country Mutual filed a motion for summary judgment on its complaint for declaratory
judgment, a motion to dismiss the second amended affirmative defenses, and a motion for
summary judgment on the counterclaim. On June 13, 2007, the circuit court granted summary
judgment in favor of Country Mutual on its declaratory judgment claim and dismissed with
prejudice the second amended affirmative defenses. On August 1, 2007, the circuit court granted
summary judgment in favor of Country Mutual on the counterclaim, finding that Country Mutual
did not have a duty to defend or indemnify Olsak.
¶ 26 Olsak and Pecoraro appealed the circuit court’s judgment. asserting that the joint defense
of Olsak and Pecoraro presented Country Mutual with a conflict of interest and Country Mutual
should have obtained independent counsel to defend Olsak.
¶ 27 This court found that its analysis suggested a conflict of interest existed between Olsak and
Pudlo and reversed the circuit court’s judgment because the interests of Olsak and Pudlo were
diametrically opposed in the underlying action. The court also found that Country Mutual failed
to disclose to Olsak the existence of the potential conflict. Country Mutual Insurance Co. v. Olsak,
391 Ill. App. 3d 295, 307 (2009) (Olsak I). In Olsak I, this court also determined that Country
Mutual had a duty to defend Olsak in the underlying action because the allegations in the complaint
revealed a potential for coverage. Id. The court concluded that the circuit court erred in granting
summary judgment on the declaratory judgment claim and counterclaim and erred in dismissing
the second amended affirmative defenses with prejudice. The matter was remanded for a final
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determination of whether a conflict of interest existed between Olsak and Pudlo and whether Olsak
was prejudiced by Country Mutual’s failure to retain independent counsel to represent him. On
remand, Country Mutual raised a collateral argument that the 2006 settlement was unenforceable
as it was without a specific settlement amount.
¶ 28 On June 26, 2009, counsel for Pecoraro advised counsel for Country Mutual that all the
pending matters involving Country Mutual and its insureds, Olsak and Pudlo, could be resolved
for payment of the policy limits of $3 million. Country Mutual’s response letter, drafted by its
attorney on August 14, 2009, refused to settle for any amount or engage in settlement discussions.
Country Mutual maintained that it had no duty to defend, denied Olsak I found there were conflicts
of interest faced by Country Mutual, and denied that Pecoraro suffered a serious brain injury.
¶ 29 On May 31, 2010, Olsak and Pecoraro executed a modification to the 2006 settlement
(2010 amended settlement). In the 2010 amended settlement, the parties stated that Olsak had not
satisfied the $5000 payment as required by the terms of the 2006 settlement. As of the date of the
2010 amended settlement, Olsak had only paid $1500 of the $5000 obligation. Olsak agreed to pay
Pecoraro $6 million for Pecoraro’s injuries in exchange for a reaffirmation of the release provided
in the 2006 settlement and the forbearance by Pecoraro of his rights against Olsak arising from his
default on the $5000 payment. Pecoraro claimed a loss of smell, taste, and vision in the lateral
vertical hemisphere of his left eye. He also claimed persistent neck pain, persistent headaches,
diminished ability to concentrate, and other cognitive impairments. The parties agreed that the $6
million payment would be satisfied through the assignment of Olsak’s rights under the relevant
policies issued by Country Mutual and TIG, as set forth in the 2006 settlement.
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¶ 30 On June 16, 2010, Olsak and Pecoraro filed a motion requesting a finding that the 2010
amended settlement was reasonable and consistent with the holding in Guillen. TIG and Country
Mutual filed a motion to dismiss, asserting that the circuit court did not have subject matter
jurisdiction over the request for a finding of reasonableness because the August 28, 2006 “good
faith” order dismissing Pecoraro’s claim against Olsak pursuant to the original settlement
agreement was a final order that could no longer be vacated or modified. The circuit court granted
the motion to dismiss, finding that the order dismissing Pecoraro’s underlying claim against Olsak
was a final order and that the circuit court, and therefore, lacked subject matter jurisdiction over
the request for a finding that the 2010 amended settlement was reasonable.
¶ 31 Beginning on January 9, 2012, the circuit court held a hearing to determine whether a
conflict of interest existed between Olsak and Pecoraro. At the hearing, Jon Yambert, an attorney
at the Chilton Yambert Law Firm, testified via an evidence deposition. Yambert testified that on
December 14, 2000, he sent a letter to the Pudlos. The letter stated, “I perceive that there are and
will be some conflicts of interest in this case.” Further, he states,
“There are some potential problems which I perceive in my representing Mr. and Mrs.
Pudlo and Thomas Olsak. In the event that my representation of Mr. Olsak makes my
position untenable with respect to the representation of Mr. and Mrs. Pudlo, I will withdraw
from representation of Mr. Thomas Olsak.”
On February 6, 2001, Yambert filed an appearance on Olsak’s behalf, and in October 2001, he
filed an appearance on Pudlo’s behalf. Yambert also testified that his firm represented Pudlo only
as to count III of Pecoraro’s complaint, the claim against Pudlo as an individual for failing to
control or supervise Olsak, and his representation of Pudlo ended on March 13, 2002, when the
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court dismissed that claim. Yambert further testified that his firm’s representation of Olsak did not
occur at the request of Country Mutual, and he did not believe his firm was ever paid for its
representation of Olsak.
¶ 32 Shipley testified that he was retained by Country Mutual to represent Pudlo in his capacity
as a board member and to monitor the case. Shipley filed an appearance on behalf of Pudlo on
May 11, 2004, but did not take part in drafting any motions to dismiss the claims against the
individual members of the Board, never received any instructions from Country Mutual as to
arguments to be made on behalf of Pudlo, and never gave Pudlo any legal advice. On cross-
examination, Shipley stated that he attended the circuit court hearing as to whether the 2006
settlement between Olsak and Pecoraro was reached in good faith and argued against such a
finding at that proceeding.
¶ 33 On March 16, 2012, the circuit court dismissed the declaratory judgment claim filed by
Country Mutual as moot and granted a $5000 judgment in favor of Olsak and Pecoraro on their
counterclaim. The court found that a conflict of interest existed between the defenses of Olsak and
Pudlo during the period in which Country Mutual retained Shipley to monitor the litigation on
Pudlo’s behalf. The court also found that Olsak was prejudiced by Country Mutual’s failure to
appoint counsel to represent him to the extent he was required to settle with Pecoraro for $5000.
Olsak and Pecoraro appealed.
¶ 34 In 2014, this court considered whether the circuit court erred by awarding Olsak and
Pecoraro only $5000 in damages on their counterclaim. Olsak, 2014 IL App (1st) 121063-U (Olsak
II). Olsak and Pecoraro argued that Country Mutual was liable to Pecoraro for reasonable
compensatory damages arising from the underlying claim pursuant to the 2006 settlement
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agreement and the 2010 amended settlement because Country Mutual breached its duty to defend
Olsak. Country Mutual responded that the most it could be required to pay Pecoraro for breaching
its duty to defend is the $5000 Olsak was required to pay Pecoraro under the 2006 settlement.
¶ 35 In Olsak II, this court reversed the circuit court’s decision to award Pecoraro $5000 and
the circuit court’s March 8, 2011, order dismissing the motion filed by Olsak and Pecoraro for a
finding of reasonableness as to the 2010 amended settlement. The court again remanded the matter
for a reasonableness hearing of the agreement, as set forth in Guillen, and for a hearing to
determine the amount of damages Pecoraro was entitled on the counterclaim, considering the
circuit court’s ruling as to the reasonableness of the 2010 amended settlement. Finally, the court
remanded for a ruling on count III of the counterclaim, in which Pecoraro requested an award of
attorney fees and costs under section 155 of the Insurance Code, to be made when the court
determines the amount of damages to award Pecoraro on the counterclaim.
¶ 36 Fremd remained a defendant in the underlying action, which was stayed pending resolution
of the coverage actions in this case and a companion action filed by Olsak and Pecoraro against
TIG. In September 2017, the circuit court dismissed TIG from the underlying action, pursuant to
a settlement agreement between Pecoraro and TIG.
¶ 37 The circuit court entered an order clarifying the scope of the Guillen hearing and addressing
issues related to the use of discovery depositions and evidence depositions taken in the underlying
cause. The court ruled that (1) evidence of Pecoraro’s condition since the day of the 2010 amended
settlement was not relevant and must be barred, (2) discovery and evidence depositions available
to the parties prior to the 2010 amended settlement bear on the reasonableness of the settlement
and may be used as substantive evidence for purposes of showing what the parties and counsel
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believed about Pecoraro’s injuries, condition, and treatment, but (3) the depositions may not be
used as substantive evidence of Pecoraro’s injuries, condition, and treatment.
¶ 38 Country Mutual filed a motion to set the maximum limit of any potential recovery by
Pecoraro to the policy limits of $3 million. Country Mutual also filed a motion for an independent
medical examination of Pecoraro to determine whether his injuries were permanent. Country
Mutual argued that the reasonableness of the 2010 amended settlement would depend on the nature
and extent of Pecoraro’s claimed injuries and that Pecoraro put his condition at issue by claiming
the loss of smell, taste, and vision; persistent neck pain; persistent headaches; diminished ability
to concentrate; and other cognitive impairments. On July 19, 2016, the circuit court denied both
motions. The court found that Pecoraro’s current physical and/or mental condition was not in
controversy.
¶ 39 The combined trial and reasonableness hearing commenced on September 23, 2019, and
the parties presented testimony from 18 witnesses. The circuit court also received into evidence
11 evidence depositions, admitted numerous exhibits at the request of the parties, and heard
testimony from various witnesses relative to the significance of certain exhibits.
¶ 40 The circuit court entered judgment on April 29, 2020, and it ordered Country Mutual to
pay its $3 million policy limits to Pecoraro. The court found the 2010 amended settlement was not
the product of collusion, was supported by consideration, and was reasonable both with respect to
Olsak’s decision to settle and the $6 million settlement amount. The court also found that Country
Mutual did not violate section 155 of the Insurance Code and denied Olsak’s and Pecoraro’s
request for attorneys’ fees and expenses.
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¶ 41 On May 28, 2020, Country Mutual filed a post-trial motion seeking a modification of the
judgment. Country Mutual argued that TIG’s settlement with Pecoraro should act as a setoff on
any judgment against Country Mutual, except an award under section 155. Country Mutual argued
that the $3 million award should be reduced by the $750,000 settlement with TIG. On August 3,
2020, the circuit court denied the motion.
¶ 42 This timely appeal followed.
¶ 43 II. ANALYSIS
¶ 44 On appeal, Country Mutual argues that (1) the circuit court’s finding of reasonableness as
to the 2010 amended settlement agreement was against the manifest weight of the evidence, (2) the
circuit court deprived Country Mutual of a fair trial by precluding Country Mutual from presenting
evidence bearing on the reasonableness of the 2010 amended settlement through an independent
medical examination of Pecoraro, and (3) the circuit court failed to grant Country Mutual the setoff
based on Pecoraro’s settlement with TIG. Country Mutual asks this court to reverse the judgment
entered in favor of Pecoraro or grant Country Mutual a new trial. Alternatively, Country Mutual
asks this court to reverse the circuit court’s denial of a setoff to Country Mutual.
¶ 45 In their appeal, Olsak and Pecoraro argue that (1) the circuit court erred by not entering
judgment on counts I and II of the counterclaim in the amount of $6 million, (2) the circuit court
deviated from its remand jurisdiction by entering an order that Country Mutual’s liability was
limited to the policy limits of $3 million, (3) the circuit court erred by denying Pecoraro’s motion
in limine that sought to bar any argument by Country Mutual that its liability was capped by the
coverage limits contained in its two insurance policies, (4) the circuit court erred as a matter of
law when it found that Country Mutual’s conduct did not constitute bad faith claims practices
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under section 155 of the Insurance Code, and (5) the circuit court’s finding that Country Mutual’s
conduct did not constitute bad faith claims practices under section 155 of the Insurance Code was
against the manifest weight of the evidence.
¶ 46 A. Country Mutual’s Appeal
¶ 47 Country Mutual first argues that the circuit court erred in finding the 2010 amended
settlement reasonable. A reviewing court defers to the circuit court’s findings of fact unless they
are against the manifest weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002).
“A decision is against the manifest weight of the evidence only when an opposite conclusion is
apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence.”
Id. at 252. We apply a de novo standard of review to the circuit court’s conclusions of law. Id.¶ 48 In 2014, this court remanded for a reasonableness hearing of the 2010 amended settlement
pursuant to Guillen. In Guillen, our supreme court held that, when an insurer breaches its duty to
defend its insured and the insured reaches a settlement agreement with the plaintiff in the
underlying action, the insurer is legally obligated to indemnify the insured and must pay the
settlement amount so long as the plaintiff can establish that the settlement was reasonable. Guillen,
203 Ill. 2d at 161-63. The Guillen court set forth two inquiries courts should consider when
determining the reasonableness of a settlement agreement under these circumstances: (1) whether
the insured’s decision to settle was reasonable and (2) whether the settlement amount was
reasonable. Id. at 163. The insured has the burden of proving reasonableness while the insurer
retains the right to rebut any preliminary showing of reasonableness with its own affirmative
evidence bearing on the reasonableness of the settlement agreement. Id. at 163-64.
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¶ 49 With respect to the insured’s decision to settle, “the litmus test must be whether,
considering the totality of the circumstances, the insured’s decision ‘conformed to the standard of
a prudent uninsured.’ ” (Emphasis omitted.) Id. at 163 (quoting Rhodes v. Chicago Insurance Co.,
719 F.2d 116, 120 (5th Cir. 1983)). “Similarly, with respect to the amount of damages agreed to,
the test ‘is what a reasonably prudent person in the position of the [insured] would have settled for
on the merits of plaintiff’s claim.’ ” Id. (quoting Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.
1982)). Courts should take a “commonsense consideration of the totality of ‘facts bearing on the
liability and damage aspects of plaintiff’s claim, as well as the risks of going to trial.’ ” Id. (quoting
Miller, 316 N.W.2d at 735).
¶ 50 Country Mutual’s primary argument is that the 2010 amended settlement was unreasonable
because Lerum and Messineo represented both Olsak and Pecoraro during the settlement
negotiations. Country Mutual argues that the joint representation made the modified agreement
inherently collusive because counsel for Pecoraro simply negotiated between themselves to arrive
at a settlement amount greater than the available insurance coverage. Moreover, without an
adversarial relationship, Olsak was not given a contrary view of the medical evidence that could
have affected his decision to enter the agreement or agree to the $6 million settlement amount.
Country Mutual argues that rather than working with Olsak to minimize his exposure and assess
viable defenses, Lerum and Messineo instead worked to maximize Pecoraro’s recovery against
Country Mutual.
¶ 51 Olsak and Pecoraro do not dispute that Lerum and Messineo represented both parties
during negotiations for the 2010 amended settlement. It is undisputed that Lerum and Messineo
assumed Olsak’s representation following the 2006 settlement and there is no evidence indicating
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that their representation of Olsak ever ended. Therefore, assuming Lerum and Messineo indeed
represented both Olsak and Pecoraro during negotiations for the 2010 amended settlement, the
issue is whether the agreement was reasonable under these circumstances.
¶ 52 A settlement may be deemed unreasonable if there is evidence of bad faith, fraud, or
collusion. Central Mutual Insurance Co. v. Tracy’s Treasures, Inc., 2014 IL App (1st) 123339,
¶ 79. A settlement “becomes collusive when the purpose is to injure the interests of an absent or
nonparticipating party, such as an insurer or nonsettling defendant.” (Internal quotation marks
omitted.) Id. ¶ 80. Among the indicators of collusion are concealment, secretiveness, lack of
serious negotiations on damages, attempts to affect the insurance coverage, profit to the insured,
and attempts to harm the insurer’s interests. Id. “Collusion occurs when ‘the insured and a third
party claimant work together to *** inflate the third party’s recovery to artificially increase
damages flowing from the insurer’s breach’ of the duty to defend.” Id. ¶ 81 (quoting Safeco
Insurance Co. of America v. Parks, 88 Cal. Rptr. 3d 730, 748 (Ct. App. 2009)). Relevant factors
to a determination of whether a settlement is collusive include (1) the amount of the overall
settlement in light of the value of the case, (2) a comparison with awards or verdicts in similar
cases involving similar injuries, (3) facts known to the settling insured at the time of the settlement,
(4) the presence of a covenant not to execute as part of the settlement, and (5) the failure of the
settling insured to consider viable available defenses. Id.¶ 53 The joint representation of Olsak and Pecoraro was an obvious conflict of interest. Courts
acknowledge that an insured and a third-party claimant establishing a settlement amount that an
insurer is obligated to pay creates the possibility of collusion. Id. ¶ 80; Guillen, 203 Ill. 2d at 163.
Having both sides share counsel during negotiations for that settlement naturally heightens that
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No. 1-20-0695, 1-20-0731 (cons.)
possibility. These facts are troubling and represent a stunning lack of judgment, especially
considering that Olsak’s and Pecoraro’s counterclaim stem from Country Mutual’s earlier conflict
of interest, but this court cannot identify relevant authority finding joint representation alone to be
dispositive on the issue of collusion.
¶ 54 In this case, the totality of the circumstances surrounding the creation of the 2010 amended
settlement does not demonstrate that Olsak and Pecoraro set out to artificially inflate Pecoraro’s
recovery against Country Mutual. Olsak and Pecoraro did not establish a dollar amount in the 2006
agreement, but instead agreed to be bound by a later determination from a court or jury. This action
does not demonstrate a plan or concerted effort to inflate the settlement amount. On the contrary,
leaving the determination of Pecoraro’s damages to a neutral factfinder demonstrates an attempt
to have a fair and reasonable outcome. Likewise, their decision to modify the original agreement
was not the result of collusion but, instead, was prompted by Country Mutual’s argument that the
2006 settlement was invalid for lacking a specific dollar amount.
¶ 55 Country Mutual then argues that the 2010 amended settlement lacked consideration under
the preexisting duty rule and was based on illusory promises. Specifically, Country Mutual insists
that Pecoraro did not have any right to reinstate and pursue his personal injury suit against Olsak.
¶ 56 “A settlement agreement is in the nature of a contract and is governed by principles of
contract law.” K4 Enterprises, Inc. v. Grater, Inc., 394 Ill. App. 3d 307, 313 (2009). The
construction of a contract presents a question of law for which the standard of review is de novo.
Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007). “The primary objective in construing a contract
is to give effect to the intent of the parties.” Id. at 232. “A court must initially look to the language
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No. 1-20-0695, 1-20-0731 (cons.)
of a contract alone, as the language, given its plain and ordinary meaning, is the best indication of
the parties’ intent.” Id. at 233.
¶ 57 Modification of a contract must satisfy the same elements for a valid contract (offer,
acceptance, and consideration) and preexisting obligations do not suffice for consideration. All
American Roofing, Inc. v. Zurich American Insurance Co., 404 Ill. App. 3d 438, 449-50 (2010).
Consideration is the “ ‘bargained-for exchange of promises or performances, and may consist of a
promise, an act or a forbearance.’ ” Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 23
(quoting McInerney v. Charter Golf, Inc., 176 Ill. 2d 482, 487 (1997)). Valid consideration must
exist on the part of both parties. Marque Medicos Fullerton, LLC v. Zurich American Insurance
Co., 2017 IL App (1st) 160756, ¶ 65. “ ‘Any act or promise which is of benefit to one party or
disadvantage to the other is a sufficient consideration to support a contract.’ ” Carter, 2012 IL
113204, ¶ 23 (quoting Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 330 (1977)). “It is well
settled that valid consideration exists for a release when a party promises not to file suit against
another party in exchange for payment.” Rohr Burg Motors, Inc. v. Kulbarsh, 2014 IL App (1st)
131664, ¶ 49. Although some consideration is necessary, “ ‘[a] court’s inquiry into whether a
contract is supported by consideration does not extend to examining the adequacy of the
consideration.’ ” (Internal quotation marks omitted.) Id. ¶ 48 (quoting Hurd v. Wildman, Harrold,
Allen & Dixon, 303 Ill. App. 3d 84, 93, (1999). “ ‘It is not [the] court’s function to review the
amount of consideration unless the amount is so grossly inadequate as to shock the conscience’ ”
of the court. Id. (quoting Hurd, 303 Ill. App. 3d at 93). Thus, “ ‘[m]ere inadequacy of
consideration, in the absence of fraud or unconscionable advantage, ordinarily is insufficient to
justify setting aside a contract.’ ” Id. (quoting Hurd, 303 Ill. App. 3d at 93).
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¶ 58 “ ‘The preexisting duty rule provides that where a party does what it is already legally
obligated to do, there is no consideration as there is no detriment.’ ” Marque Medicos Fullerton,
LLC, 2017 IL App (1st) 160756, ¶ 65 (quoting White v. Village of Homewood, 256 Ill. App. 3d
354, 357 (1993)). Thus, “ ‘[c]onsideration cannot flow from an act performed pursuant to a
preexisting legal duty.’ ” Id. (quoting White, 256 Ill. App. 3d at 357).
¶ 59 Valid consideration existed for Olsak to enter the 2010 amended settlement. By 2010,
Olsak only paid $1500 of the $5000 obligation required by the 2006 settlement. This breach
entitled Pecoraro to seek reinstatement of his claim against Olsak. Olsak was not, as Country
Mutual asserts, “unconditionally and forever released and discharged” from all claims arising from
the October 21, 1998, incident. Instead, Olsak’s release was conditioned on his compliance with
his promises under the agreement. Specifically, section 4.2 of the 2006 settlement provided, “A
failure to cure, or material failure to cooperate by Thomas Olsak, constitutes a breach of this
Agreement which would entitle Joseph Pecoraro to seek reinstatement of his Lawsuit against
Thomas Olsak.” While it is unclear when Pecoraro provided Olsak an opportunity to cure the
breach by paying the remaining $3500, the record clearly shows that Olsak was unable to pay.
Even by 2010, Olsak did not have any substantial assets other than his claims against Country
Mutual and TIG. Thus, in exchange for the forbearance of the remaining $3500 payment, Olsak
received a benefit in avoiding any judgment in the underlying tort action or a new contract action
for which he had no funds to defend.
¶ 60 Valid consideration also existed for Pecoraro. After Country Mutual argued that the 2006
settlement was invalid for lacking a specific dollar amount, Pecoraro did not want the agreement
declared a nullity. Since Olsak was in default of the agreement, Pecoraro could have reinstated
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No. 1-20-0695, 1-20-0731 (cons.)
Olsak as a defendant in the underlying action or brought a new breach of contract claim against
Olsak. He chose instead to enter into a forbearance agreement with Olsak that modified the terms
of the 2006 agreement to include the missing settlement amount. In exchange for forbearing his
rights against Olsak, Pecoraro received certainty that he could demand a Guillen hearing.
¶ 61 Regarding the settlement amount in the 2010 amended settlement agreement, Country
Mutual argues that the circuit court’s finding of reasonableness was against the manifest weight of
the evidence. Country Mutual maintains that Olsak was not provided a contrary view of the
medical evidence because of the joint representation; therefore, the amount was necessarily
inflated because an independent counsel might have negotiated a lower settlement. While a lower
settlement amount was certainly possible, the circuit court’s inquiry was not to determine whether
the amount was the lowest possible, only that it was reasonable. The available evidence in this
case shows that the $6 million settlement amount was reasonable.
¶ 62 Messineo testified that, prior to modifying the 2006 agreement, he reviewed approximately
30 to 40 Jury Verdict Reporters and narrowed them down to those that had injuries most similar
to Pecoraro’s injuries. Messineo also testified that he had assisted in preparing the summaries of
medical testimony that were contained within the 2010 amended settlement. During negotiations,
Messineo and Olsak went through the Jury Verdict Reporters of verdicts and settlements that were
attached to the modified agreement. Olsak was shown a range of verdicts that were both above and
below the proposed $6 million settlement amount. There was no evidence that Messineo simply
suggested the highest amount or exaggerated Pecoraro’s injuries.
¶ 63 Country Mutual argues that no prudent uninsured would have increased his liability from
$5000 to $6 million, but this argument conflates two distinct provisions in the 2006 settlement.
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No. 1-20-0695, 1-20-0731 (cons.)
Section 2.1 of the 2006 agreement stated that Olsak would pay $5000 “for the purpose of defraying
attorney fees and expenses incurred by Joseph Pecoraro in the Country Mutual Action,” referring
to Country Mutual’s claim for declaratory judgment. The $5000 obligation was never a
determination of Pecoraro’s damages for his injuries. As stated above, the 2006 settlement
agreement did not contain an amount for compensatory damages but instead left that determination
for a court or jury. Obviously, Country Mutual did not believe the $5000 obligation was the
settlement amount because Country Mutual argued that the 2006 settlement was invalid for lacking
a specific dollar amount. Now, Country Mutual suggests not only was the 2006 settlement valid,
but also contained the dollar amount that it previously insisted was missing. Country Mutual
cannot have it both ways.
¶ 64 The circuit court concluded that the $6 million settlement amount was fair and reasonable
in light of Pecoraro’s injuries and a review of the voluminous medical records, discovery, and
evidence depositions. The court also acknowledged the “often-times conflicting trial testimony.”
Country Mutual, however, insists that certain instances of conflicting testimony compel a different
outcome.
¶ 65 We acknowledge, like the circuit court, that obvious contradictions exist in the record. The
most significant contradiction was evidence suggesting that Pecoraro was in a coma for multiple
days following the 1998 incident. He was not. Pecoraro briefly lost consciousness but was never
in a coma. Despite this and other contradictions, the circuit court found that the vast medical
evidence is supportive of the $6 million amount. Based on the testimony of witnesses, we note the
record is clear that Pecoraro suffered a severe head injury. He testified that his injury led to a loss
of taste and smell, memory loss, vision loss, cognitive deficits, and head pain. The court gave
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considerable weight to Pecoraro’s testimony and found his injuries “real and impressive.”
Additionally, the reasonableness of the $6 million amount was substantiated by the expert
testimony of Faustin Pipal, a professional mediator, who testified that verdicts and settlements
involving similar injuries in the relevant time-period fell in the range of $5.75 to $9.35 million.
Pipal concluded that $6 million was a reasonable settlement value for Pecoraro’s injury claim,
even without taking into consideration Pecoraro’s claims for lost income and lost value of his
business. Therefore, the circuit court’s finding that the $6 million amount was reasonable was not
against the manifest weight of the evidence.
¶ 66 The second issue in Country Mutual’s appeal concerns the circuit court’s denial of Country
Mutual’s motion for an independent medical examination (IME) of Pecoraro. Country Mutual
argues that the denial of an IME deprived it of a fair trial.
¶ 67 Country Mutual’s right to an IME was governed by Illinois Supreme Court Rule 215 (eff.
Jan. 1, 2018), and Rule 215(a) provides, in relevant part:
“In any action in which the physical or mental condition of a party or of a person
in the party’s custody or legal control is in controversy, the court, upon notice and
on motion made within a reasonable time before the trial, may order such party to
submit to a physical or mental examination by a licensed professional in a discipline
related to the physical or mental condition which is involved.” Ill. S. Ct. R. 215(a)
(eff. Jan. 1, 2018).
¶ 68 The circuit court’s decision regarding whether to allow or deny an IME under Rule 215 is
reviewed for an abuse of discretion. Kaull v. Kaull, 2014 IL App (2d) 130175, ¶ 82. We will not
disturb the circuit court’s ruling regarding a Rule 215 examination unless the court has abused its
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discretion. Id. The circuit court abuses its discretion when no reasonable person would take its
view. In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 233 (2008).
¶ 69 On March 11, 2016, the circuit court entered a discovery order and clarified the scope of
the Guillen hearing. The court ruled that evidence of Pecoraro’s condition since the day of the
2010 amended settlement was not relevant and must be barred. On April 22, 2016, Country Mutual
filed a motion for an IME of Pecoraro to determine whether his injuries were permanent. The
circuit court denied the motion, finding that Pecoraro’s current physical condition was not in
controversy and could not provide evidence bearing on the reasonableness of the 2010 amended
settlement.
¶ 70 Country Mutual filed another motion for an IME of Pecoraro on November 13, 2017, and
the motion was again denied because “Pecoraro’s condition after the settlement is not relevant.”
On October 11, 2018, Country Mutual filed a motion to bar certain expert witnesses or, in the
alternative, to allow independent medical examinations of Pecoraro. At the hearing on the motion,
the following exchange occurred:
THE COURT: So, going back to my question, why do you need—
CARLSON (Country Mutual’s counsel): The—
THE COURT:—this?
CARLSON:—IME then is because then someone is saying that it’s
permanent. How can you give an opinion that it’s permanent in 2010 when you
don’t know what’s going to happen in the future—or what has happened in the
future?
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THE COURT: Is it your position that the conditions as described by the
various witnesses are wrong in the sense that he is not permanently personally
injured?
CARLSON: Correct. I have records we just got that were disclosed earlier
that were from an orthopedic. He had knee surgery in two thousand—knee
injections in 2017 where he describes to his treaters then that that was his only real
problem and that that was—he had no headaches and no other pains in his back.
***
CARLSON: So, he’s saying things in the records to subsequent doctors that
are contradictory to his claim that they’re permanent things, so—
THE COURT: So conceivably, yeah, I understand what you’re saying is—
CARLSON: I would like to be able to bring that in to show that—
THE COURT:—they got it wrong. That he is—he’s had a miraculous
recovery, despite what the opinions were. The key though is what was his medical
condition as of 2010 as it relates to the underlying resolution of the case. That’s—
that’s the issue as I see it and as defined at the appellate court.
CARLSON: Medical and damages, right. Yeah.
THE COURT: So, your motion is denied as to the IME.
¶ 71 This exchange demonstrated that Country Mutual’s clear purpose for requesting the IME
was to highlight Pecoraro’s present-day medical condition, not just his condition in 2010. Country
Mutual’s counsel admitted the purpose when he argued at the October 22, 2018, hearing, and on
appeal, that the permanence of Pecoraro’s injuries can only be proven by showing his current
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No. 1-20-0695, 1-20-0731 (cons.)
condition. Despite Counsel’s argument, the circuit court repeatedly ruled that Pecoraro’s current
condition was not in controversy because, in 2010, Olsak would not have known Pecoraro’s future
condition. We view Country Mutual’s multiple requests for an IME as attempts to circumvent the
circuit court’s ruling. Because Pecoraro’s current medical condition was not in controversy, an
IME was not relevant and would not have materially aided in the just determination of the case.
Therefore, the circuit court did not abuse its discretion in denying Country Mutual’s motion for an
IME.
¶ 72 Country Mutual’s final issue concerns a denial of a setoff. Country Mutual argues that the
circuit court erred when it refused to setoff TIG’s settlement with Pecoraro against the damages
awarded. The determination of whether a defendant is entitled to a setoff is a question of law and,
therefore, subject to de novo review. Thornton v. Garcini, 237 Ill. 2d 100, 115-16 (2009).
¶ 73 In Garcini, the Illinois Supreme Court established two distinct meanings for the term
“setoff.” Id. at 113. First, a setoff may refer to a situation when a defendant has a distinct cause of
action against the same plaintiff who filed suit against it. Id. Second, a setoff may refer to a
defendant’s request for a reduction of the damage award because a third party has already
compensated the plaintiff for the same loss. Id. This includes instances where a codefendant who
would be liable for contribution reaches a settlement with the plaintiff. Id. A request for this type
of setoff constitutes an “enforcement action,” which may be raised at any time. Id.
¶ 74 In this case, Country Mutual is referring to the second category of setoff. Country Mutual
seeks to setoff TIG’s $750,000 settlement with Pecoraro against the $3 million awarded to
Pecoraro, but the unique and complicated nature of this case has a led to confusion regarding the
application of a setoff. When TIG filed its motion for a good faith finding, it mistakenly believed
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that the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West
2010)) applied. Specifically, TIG’s motion requested:
“Under the circumstances, with considerable risks of litigation running both
directions, with experienced attorneys negotiating at arm’s length, TIG asserts that
the Confidential Settlement Agreement and Release is made in good faith. As such,
this Court should enter a finding that the Confidential Settlement Agreement and
Release was made in good faith pursuant to the Illinois Contribution Among Joint
Tortfeasor’s Act and discharge TIG and from liability arising out of the Underlying
Incident, bar contribution actions against TIG and determine that Country Mutual
is entitled to a set-off in the full amount of the settlement from any judgment that
may eventually be entered against it.”
¶ 75 At the September 26, 2017, hearing on TIG’s motion, the following statements were made
by the parties and the court:
“CARLSON: I told both opposing counsel, I don’t have an objection as long
as it’s noted somewhere, whether it’s confidentially or otherwise, that should there
ever be any award or judgment against Country Mutual for the same identical
agreement to the Courts outcast [sic] with resolving the reasonableness and so forth,
then we get a dollar-for-dollar credit for every payment—every dollar paid by TIG.
Otherwise, we are not going to argue whether it is good faith or not.
***
LERUM: The only point that I wish to raise with respect to any type of
blanket order is this is a set off for all claims against Country Mutual, because I
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No. 1-20-0695, 1-20-0731 (cons.)
don’t believe that this settlement should be a setoff to the section 155 claim that’s
pending in which the Appellate Court has ordered we go forward on a hearing on.
***
LERUM: It would be a set off, but not to the 155 claim because that—
***
CARLSON: No, I don’t have a problem if you view it’s a setoff for every
dollar amount in the case except for any claim under Section 155. It could go down
to the one sentence, I think.
THE COURT: I agree. I think that is the correct interpretation of our case
law.
***
THE COURT: So, I’m not really hearing that as an objection, more of a
concern that the Court will not view this statement between TIG and Olsak as
something that would in any way not set off any damages that would be available
to the plaintiff, and I am viewing this as just that. You are entitled to a setoff other
than relative to any 155 claims, which was a claim—you know, whether it has merit
or not.”
¶ 76 All parties, including the court, were incorrect. Later, at the hearing on Country Mutual’s
posttrial motion for a setoff, the circuit court acknowledged its mistake, stating: “So, what is clear,
I recognize the confusion, because of the prior order, what I’m saying upon reflection, and which
is incorporated in my decision is that initial order, that initial finding in my opinion was totally
unnecessary as that dealt with contribution.”
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No. 1-20-0695, 1-20-0731 (cons.)
¶ 77 The circuit court, in denying Country Mutual’s motion for a setoff, concluded that its
September 26, 2017, good-faith finding was unnecessary because the Contribution Act did not
apply in this case. Because Lerum had already stipulated that Country Mutual was entitled to a
setoff under the Contribution Act, Country Mutual argues that the circuit court was bound by that
stipulation and had to enforce it.
¶ 78 “A stipulation is an agreement by the parties with regard to an issue before the court.”
Dawdy v. Sample, 178 Ill. App. 3d 118, 127 (1989). Stipulations are generally favored as they
promote the efficient disposition of cases and simplification of issues. Fitzpatrick v. Human Rights
Comm’n, 267 Ill. App. 3d 386, 390 (1994). Additionally, stipulations “will be enforced unless
there is a proper showing the stipulation is unreasonable, violative of public policy, or the result
of fraud.” Id. While the parties may bind themselves by stipulation, they “cannot bind a court by
stipulating to a question of law or the legal effect of facts.” Domagalski v. Industrial Comm’n, 97
Ill. 2d 228, 235 (1983); Dawdy, 178 Ill. App. 3d at 127.
¶ 79 Here, Lerum’s stipulation that the Contribution Act applied in this case was a
misunderstanding of the law. Although the circuit court initially agreed with the parties’
interpretation of caselaw, it eventually realized that their assessment was incorrect. On appeal,
both sides agree that the Contribution Act does not apply. Nonetheless, Country Mutual argues
that the court should have honored the stipulation because it was not challenged by any party. This
argument would compel the court to disregard its own reading of the law and adopt an admittedly
incorrect view simply because a party made a stipulation regarding the law. This would be
improper as it invades the province of the court. “ ‘[A] stipulation as to the legal conclusions
arising from facts is inoperative.’ ” American Pharmaseal v. TEC Systems, 162 Ill. App. 3d 351,
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No. 1-20-0695, 1-20-0731 (cons.)
356 (1987) (quoting People v. Levisen, 404 Ill. 574, 578-79 (1950)). We find that the circuit court
properly disregarded the stipulation as it reflected an incorrect legal conclusion.
¶ 80 Country Mutual then argues that it is entitled to a setoff to prevent double recovery, even
though the Contribution Act does not apply. The purpose of damages is to place the nonbreaching
party in a position that he would have been in had the contract been performed, not to provide the
nonbreaching party with a windfall recovery. Jones v. Hryn Development, Inc., 334 Ill. App. 3d
413, 418 (2002). “The law is well settled that, where there is a single and indivisible injury, the
damages are inseparable and any amounts received from any of the defendants must be deducted
from the total damages sustained.” Young Men’s Christian Ass’n of Warren County v. Midland
Architects, Inc., 174 Ill. App. 3d 966, 970 (1988). Therefore, “ ‘[a]n injured person is entitled to
one full compensation for his injuries, and a double recovery for the same injury is against public
policy.’ ” Id. (quoting Eberle v. Brenner, 153 Ill. App. 3d 700, 702 (1987)).
¶ 81 Illinois courts have held that the double recovery doctrine does not apply to settlement
agreements. See McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 32; Kim v.
Alvey, Inc., 322 Ill. App. 3d 657, 672 (2001); In re Salmonella Litigation, 249 Ill. App. 3d 173,
183 (1993). In Salmonella, the court held that the double recovery doctrine “should not apply to
settlements because a settlement is a contract which governs the plaintiff’s recovery.” Salmonella,
249 Ill. App. 3d at 183. Salmonella explained that for settlement agreements, courts will not
attempt “to assess the damages necessary to fully compensate the claimants for their injuries.” Id.
Instead, the courts will only enforce the agreement and determine the amount of recovery
permitted. Id. The court reasoned that “[w]ithout a determination following full litigation of a tort
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No. 1-20-0695, 1-20-0731 (cons.)
case of the amount necessary to fully compensate claimants for their injuries, this court cannot say
that any amount constitutes a double recovery.” Id.
¶ 82 We find Salmonella persuasive. Like in Salmonella, no factfinder determined the amount
necessary to fully compensate for Pecoraro’s injuries. Here, the 2010 amended settlement, not a
payment required pursuant to a judgment, governed Pecoraro’s damages. As such, a setoff based
on the double recovery doctrine does not apply because we cannot conclude what amount
constitutes full compensation or double recovery. Consequently, we affirm the circuit court’s
decision to deny Country Mutual a setoff.
¶ 83 B. Olsak and Pecoraro Appeal
¶ 84 Olsak and Pecoraro first argue that the circuit court erred in not entering judgment in the
amount of $6 million. In this case, the circuit court was not tasked with assessing the damages
necessary to fully compensate Pecoraro for his injuries. It only had to determine whether the
settlement amount established in the 2010 amended settlement was reasonable. The court held that
the $6 million amount was indeed reasonable, but Country Mutual was not obligated to pay a
judgment amount greater than its $3 million policy limits. Olsak and Pecoraro argue that the circuit
court misapplied the law related to whether Country Mutual’s conduct renders it liable over its
policy limits. In reviewing the circuit court’s conclusion of law, we apply a de novo standard of
review. Eychaner, 202 Ill. 2d at 252.
¶ 85 Olsak and Pecoraro argue that once a court determines a settlement amount to be reasonable
pursuant to Guillen, all other analysis should end, and the insurer must be liable for the full
settlement amount, regardless of the policy limits. We disagree because an insurer’s breach of its
duty to defend does not expose the insurer to liability greater than the policy limits; it only estops
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No. 1-20-0695, 1-20-0731 (cons.)
the insurer from raising policy defenses to the coverage that already exists. Guillen v. Potomac
Insurance Co. of Illinois, 323 Ill. App. 3d 121, 137 (2001) (citing Gould v. Country Mutual
Casualty Co., 37 Ill. App. 2d 265, 290 (1962)), aff’d as modified and remanded, 203 Ill. 2d 141(2003). “The rationale for the general rule is that an insurance company should not be made to pay
for a loss for which it has not charged a premium.” Nationwide Mutual Insurance Co. v. Filos, 285
Ill. App. 3d 528, 534 (1996). Filos, however, identified two exceptions to the general rule. Id.¶ 86 The first exception applies “where an insurer misrepresents the extent of coverage to an
insured, thereby inducing the insured to purchase coverage which does not in fact cover the
disputed risk.” Id. This exception does not apply here. The second exception applies “where an
insurer defends an action on behalf of an insured, with knowledge of facts that would provide a
defense to coverage, but without a reservation of rights.” Id. Since Country Mutual never provided
Olsak with a defense, this exception also does not apply.
¶ 87 We find Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127(1999), inapplicable. Ehlco involved a dispute over insurance coverage for environmental property
damages at two industrial sites. Id. at 130. At the first site, the insured received a letter from the
United States Environmental Protection Agency (EPA), advising the insured that it may be liable
for the costs related to environmental contamination. Id. at 132. The insured gave the insurer notice
of the claims. The insurer responded that its policies did not appear to provide coverage for the
potential claim. Id. at 132-33. On multiple occasions, the insured requested that the insurer
reconsider its refusal to defend the insured against the EPA’s claim, but the insurer provided no
defense. Id. at 133. Eventually, the insured agreed to finance and perform certain environmental
response actions and to reimburse the EPA for certain funds expended. Id. at 133-34.
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¶ 88 At the second site, the insured was sued for indemnification for damages caused by
environmental contamination. Id. at 134. The insured sent notice of this suit to the insurer and
requested a response regarding the defense. The insurer acknowledged receipt of the insured letter
and stated that it was searching for its policies, but the insurer did nothing other than request
information from the insured. After the insured received a settlement offer, the insurer only offered
to pay a fraction of the amount and defense costs. The insured rejected the insurer’s offer and
settled for the full settlement offer. Id.¶ 89 After both underlying suits were concluded, the insurer sought declaratory judgment that
it owed no duty to defend or indemnify the insured for environmental property damage at the
second site. Id. at 135. The insured filed a counterclaim seeking a declaration that the insurer owed
defense and indemnity coverage for the first site. The insurer then amended its complaint and
sought a declaration of its obligations concerning the first site and moved to dismiss the insured’s
counterclaim as barred, asserting the insured breached a notice condition in the insurance policies.
Id.¶ 90 Our supreme court, in rejecting all the insurer’s requests for cross-relief as to second site,
held the general rule of estoppel applied. Id. at 150. The court explained:
“The general rule of estoppel provides that an insurer which takes the
position that a complaint potentially alleging coverage is not covered under a policy
that includes a duty to defend may not simply refuse to defend the insured. Rather,
the insurer has two options: (1) defend the suit under a reservation of rights or
(2) seek a declaratory judgment that there is no coverage. If the insurer fails to take
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No. 1-20-0695, 1-20-0731 (cons.)
either of these steps and is later found to have wrongfully denied coverage, the
insurer is estopped from raising policy defenses to coverage.” Id. at 150-51.
¶ 91 In this case, it is undisputed that Country Mutual had a duty to defend Olsak and breached
that duty. Further, the estoppel doctrine bars Country Mutual from raising policy defenses. Ehlco
extended the estoppel doctrine to bar defenses based on late notice. American Safety Casualty
Insurance Co. v. City of Waukegan, Illinois, 678 F.3d 475, 485 (7th Cir. 2012). Ehlco did not
conclude, as Olsak and Pecoraro allege, that the estoppel doctrine alone permits a settlement
amount greater than the policy limits. That is an overly expansive interpretation for which there is
no support. Ehlco was decided before Guillen and obviously did not address the issue of whether
a settlement agreement is reasonable or whether a settlement amount over the insurer’s policy
limits is enforceable. The facts are distinguishable.
¶ 92 We also find Delatorre v. Safeway Insurance Co., 2013 IL App (1st) 120852,
distinguishable. In Delatorre, the insurer agreed to defend the insured under a reservation of rights
and informed the insured that it had retained an attorney to undertake his defense. Id. ¶ 6. After
filing an appearance and answer on behalf of the insured, the attorney took no further action to
defend the insured. Id. ¶ 7. A default judgment was eventually entered against the insured in excess
of the policy limits. Id. The Delatorre court held that the limited action by the attorney represented
a breach of the insurer’s duty to defend. Id. ¶ 26. Regarding damages, the Delatorre court relied
on the Illinois Supreme Court’s decision in Conway v. Country Casualty Insurance Co., 92 Ill. 2d
388 (1982). Delatorre, 2013 IL App (1st) 120852, ¶ 33. The Delatorre court construed Conway
“to suggest two ways in which an insured may recover an excess judgment based on its
insurer’s breach of duty to defend: (1) tort based, as a punitive measure, where the insurer
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has acted in bad faith, or (2) contract based, as a compensatory measure, where the
insured’s damages are proximately caused by the insurer’s breach of duty.” Id.The court then concluded that the insurer’s breach was the proximate cause of the default judgment
for which it was liable. Id. ¶ 35.
¶ 93 Regarding a tort-based claim, our supreme court in Cramer v. Insurance Exchange Agency,
174 Ill. 2d 513, 527 (1996), declined to recognize a separate stand-alone tort for bad faith. Instead,
the court has explained that section 155 provides an extracontractual remedy to policyholders when
the insurer’s refusal to recognize liability and pay a claim under the policy is vexatious and
unreasonable. Id. at 520. We separately address Olsak’s and Pecoraro’s section 155 claim below.
¶ 94 Relevant to our analysis is the contract-based claim described in Delatorre. The issue is
whether Country Mutual proximately caused Pecoraro’s any of the damages in excess of the policy
limits. We hold that it did not.
¶ 95 In Delatorre, the default judgment was the direct result of the attorney’s inadequate
representation. Delatorre, 2013 IL App (1st) 120852, ¶ 35. Thus, the insurer was liable for
damages beyond the policy limits because its breach of duty caused the excess judgment. That
situation is not present here. If Country Mutual had provided Olsak with a defense at the outset of
Pecoraro’s action, the extent of its liability would have been the $3 million policy limits. That is
undisputed. In 2009, after this court held that Country Mutual breached its duty to defend, Pecoraro
attempted to settle his case against Country Mutual for $3 million. These are clear indicators that,
prior to 2009, placing Pecoraro in the same position he would have been in had Country Mutual
not breached its duty to defend would have cost $3 million. In 2010, Olsak and Pecoraro modified
their 2006 agreement to include a $6 million settlement amount, which was based on Pecoraro’s
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permanent injuries. There is no evidence that Country Mutual’s breach was the proximate cause
of this additional $3 million. Olsak and Pecoraro do not allege that Pecoraro’s injuries worsened
between 2009 and 2010, causing an additional $3 million in damages and that Country Mutual’s
breach from a decade earlier was the proximate cause.
¶ 96 Because Olsak and Pecoraro have failed to show an exception to the general rule that an
insurer’s breach of duty to defend does not expose it to liability greater than the policy limits, or
that Country Mutual’s breach proximately caused Pecoraro’s damages over the policy limits, the
circuit court did not err in limiting Country Mutual’s liability to the $3 million policy limits.
¶ 97 Olsak and Pecoraro next argue that the circuit court deviated from its remand jurisdiction
by entering an order that Country Mutual’s liability was capped by the policy limits of $3 million.
¶ 98 On remand, a circuit court “can take only such action that conforms to the judgment of the
reviewing court.” Independent Voters of Illinois v. Illinois Commerce Comm’n, 117 Ill. 2d 90, 102
(1987). When the reviewing court’s directives are specific and unambiguous, the circuit court must
enter a decree in accordance with the directions; but when the reviewing court does not give
specific directions, the circuit court is to examine the appellate opinion and proceed in conformity
with the views expressed therein. Ertl v. City of De Kalb, 2013 IL App (2d) 110199, ¶¶ 21-22.
Whether a circuit court has exercised its discretion within the bounds of the remand is a question
of law that this court reviews de novo. Garley v. Columbia LaGrange Hospital, 377 Ill. App. 3d
678, 681 (2007).
¶ 99 In Olsak II, this court instructed as follows:
“[W]e remand the matter for a hearing regarding the reasonableness of the
amendment, as set forth in Guillen, 203 Ill. 2d at 163-64. We also remand the matter
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to the circuit court for a determination of the damages to which Pecoraro is entitled
on the counterclaim against Country Mutual, taking into account the court’s ruling
as to the reasonableness of the amendment to the settlement agreement.” Olsak II,
2014 IL App (1st) 121063-U, ¶ 28.
¶ 100 Olsak and Pecoraro contend that because Country Mutual failed to raise a policy limit
defense, the circuit court did not have jurisdiction to consider whether Country Mutual’s liability
was capped by the policy limits of $3 million.
¶ 101 As stated above, Olsak’s and Pecoraro’s argument is that once a court determines a
settlement amount to be reasonable, all other analysis must end, and the insurer must be liable for
the full settlement amount, regardless of the policy limits. We find no support for their proposition,
and neither did the circuit court. In determining damages, this court instructed the circuit court to
“tak[e] into account” its ruling regarding reasonableness. The court then reviewed relevant caselaw
and determined that there was no support for a judgment in excess of the policy limits under the
present circumstances. The appellate court’s mandate did not foreclose the circuit court from
concluding Pecoraro’s damages were capped by the policy limits. Therefore, the circuit court
properly exercised its discretion on remand.
¶ 102 Olsak and Pecoraro next argue that the circuit court erred by denying Pecoraro’s motion
in limine that sought to bar any argument by Country Mutual that its liability was capped by the
coverage limits contained in its two insurance policies.
¶ 103 On July 7, 2016, Judge Kathleen Kennedy denied Country Mutual’s motion seeking to cap
its liability at the $3 million policy limits. Pecoraro later sought to bar Country Mutual from
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relitigating the July 7, 2016, order. At a hearing on Pecoraro’s motion, the following discussion
occurred:
“LERUM: The motion presented by Country Mutual before Judge Kennedy
was for a ruling that Country Mutual’s liability is capped at the coverage limits of
the two policies which would be $3 million. And she denied the motion.
I’m just asking that any evidence referenced or argument that Country
Mutual’s maximum liability is capped at the policy limits as contained in the 2
insurance policies should be barred for purposes of this proceeding.
THE COURT: Why?
CARLSON: I thought that would be part of your findings of fact and
conclusions of law as to what legal issues based on those facts create some
exception that there should be some judgment above the policy limits.
Is there some—based on estoppel, breach of contract, some other conduct
or not or, bad faith or whatever. I mean it’s kind of premature to find that we already
can’t argue that the limits don’t apply when you haven’t heard the evidence yet and
applied the law.
LERUM: But there is no pending motion.
THE COURT: No, but what is your argument that the limits don’t apply?
LERUM: It’s been decided. Well, I’ve presented these arguments and briefs
to Judge Kennedy and she denied the motion.
THE COURT: Not binding on me.”
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¶ 104 On July 9, 2019, Judge Michael Mullen denied Pecoraro’s motion in limine. Olsak and
Pecoraro argue that Judge Mullen’s handling of this issue was procedurally infirm since Country
Mutual did not bring a motion to reconsider Judge Kennedy’s July 7, 2016, order. We note that it
was Pecoraro’s motion in limine to bar Country Mutual from arguing the July 7, 2016, order that
placed the issue before Judge Mullen.
¶ 105 Judge Kennedy’s order denying Country Mutual’s motion seeking to cap liability at the $3
million policy limit was not a final and appealable order. “The trial court order becomes the ‘law
of the case’ only if there is a final and appealable order.” McDonald’s Corp. v. Vittorio Ricci
Chicago, Inc., 125 Ill. App. 3d 1083, 1087, 466 N.E.2d 1116, (1984). Our supreme court has
disapproved of one judge reviewing interlocutory orders entered by another judge where there is
evidence of bad faith or “judge shopping” by the party who obtains an adverse ruling. See People
ex rel. Phillips Petroleum Co. v. Gitchoff, 65 Ill. 2d 249 (1976); People ex rel. Kelly, Ketting,
Furth, Inc. v. Epstein, 61 Ill. 2d 229 (1974); People ex rel. East Side Levee & Sanitary District v.
Madison County Levee & Sanitary District, 54 Ill. 2d 442 (1973). Here, there is no evidence of
bad faith or “judge shopping” as the case was transferred to Judge Mullen after the retirement of
Judge Kennedy. Judge Mullen found that “an insurer’s breach of its duty to defend does not expose
the insurer to liability greater than the policy limits, but only estops [the insurer] from raising
policy defenses to the coverage that already exists,” citing Guillen, 323 Ill. App. 3d at 137. We
find that Judge Mullen did not err or abuse his discretion when he addressed the July 6, 2016,
interlocutory order pursuant to Pecoraro’s motion in limine where the case was assigned in the
ordinary course of judicial reassignment, there was no bad faith, and there was no issue of “judge
shopping”. See Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 214 (1988).
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¶ 106 Finally, Olsak and Pecoraro argue the circuit court erred, as a matter of law, when it ruled
that Country Mutual’s conduct did not constitute bad faith claims practices under section 155.
They also argue that the circuit court’s findings were against the manifest weight of the evidence.
The circuit court’s decision on whether to impose attorney fees and costs under section 155 is
reviewed for abuse of discretion. Ehlco, 186 Ill. 2d at 160. “A court abuses its discretion only
where its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt
the court’s view.” Certain Underwriters at Lloyd’s, London v. Abbott Laboratories, 2014 IL App
(1st) 132020, ¶ 68.
¶ 107 Section 155 of the Insurance Code “provides an extracontractual remedy to policyholders
whose insurer’s refusal to recognize liability and pay a claim under a policy is vexatious and
unreasonable.” Cramer, 174 Ill. 2d at 520. Section 155 provides, in pertinent part, “[i]n any action
by or against a company wherein there is in issue the liability of a company on a policy or policies
of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling
a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the
court may allow as part of the taxable costs in the action reasonable attorney fees, other costs” plus
additional amounts set forth in the statute. 215 ILCS 5/155(1) (West 2020).
¶ 108 The purpose of section 155
“is to punish insurance companies for vexatiously delaying or rejecting legitimate claims
by holding insurers responsible for the ‘expense resulting from the insured’s efforts to
prosecute the claim,’ and discouraging them from using their ‘superior financial position
by delaying payment of legitimate contractual obligations’ to profit at the insured’s
expense.” (Emphases omitted.) Cook v. AAA Life Insurance Co., 2014 IL App (1st) 123700,
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¶ 47 (quoting Neiman v. Economy Preferred Insurance Co., 357 Ill. App. 3d 786, 797
(2005)).
¶ 109 The relevant inquiry underlying a section 155 claim is “whether an insurer’s conduct is
vexatious and unreasonable.” Nine Group II, LLC v. Liberty International Underwriters, Inc., 2020
IL App (1st) 190320, ¶ 41. “ ‘Whether a delay is vexatious and unreasonable is a question of fact
that must be assessed based on the totality of the circumstances, taken in broad focus.’ ” Id.(quoting Cook, 2014 IL App (1st) 123700, ¶ 48). The circuit court’s findings will not be disturbed
unless they are against the manifest weight of the evidence. Cook, 2014 IL App (1st) 123700, ¶ 51.
A factual finding is against the manifest weight of the evidence only when the opposite conclusion
is apparent, or when findings are arbitrary, unreasonable, or not based on the evidence. Id.¶ 110 In determining whether conduct is vexatious or unreasonable, “[n]o single factor—e.g., the
length of time or the amount of money involved—is controlling.” Nine Group II, LLC, 2020 IL
App (1st) 190320, ¶ 41. Courts may consider the insurer’s attitude, whether the insured was forced
to file suit, and whether the insured was deprived use of its property. Id. “ ‘Additional
considerations include whether there is a bona fide dispute concerning coverage, the extent of the
insurance company’s evaluation and investigation of the claim, and the adequacy of
communications between the insurance company and the insured.’ ” Id. (quoting Cook, 2014 IL
App (1st) 123700, ¶ 48). Where there is a bona fide dispute regarding coverage, costs and sanctions
pursuant to section 155 are inappropriate. Cook, 2014 IL App (1st) 123700, ¶ 49. A bona fide
dispute is one that is “ ‘[r]eal, actual, genuine, and not feigned.’ ” (Internal quotation marks
omitted.) Id. (quoting McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 683 (2000)).
An insurer has not acted vexatiously or unreasonably under section 155 where that an insurer
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“reasonably relie[s] upon evidence sufficient to form a bona fide dispute.” (Internal quotation
marks omitted.) Illinois Founders Insurance Co. v. Williams, 2015 IL App (1st) 122481, ¶ 32.
¶ 111 The circuit court found Country Mutual had a bona fide dispute concerning coverage.
Specifically, the court found:
“Country Mutual was presented with only a single count that was directed
at Olsak and alleged that Olsak had committed an intentional act. This specified
assault was also alleged to have been committed willfully, maliciously, and not in
self-defense. Neither the home nor umbrella policies covered damages caused by
an insured’s intentional acts. Additionally, at the time of the initial coverage
analysis, there was nothing presented to Country Mutual to suggest a potential
conflict of interest due to Country Mutual’s separate and distinct responsibilities
relative to Pudlo.”
¶ 112 Understanding the timeline is crucial because, when Pecoraro filed his original complaint
in October 2000, Olsak was the only defendant named and the only count was for assault and
battery. Country Mutual denied coverage to Olsak in November 2000, asserting that his alleged
intentional acts were not covered under the policies. At that time, Pudlo was not yet a defendant,
so there was not an obvious conflict of interest. Under these circumstances, the court found
Country Mutual’s decision not to defend Olsak reasonable. That finding was not against the
manifest weight of the evidence.
¶ 113 Olsak and Pecoraro argue that Country Mutual’s four-and-a-half-year delay in filing its
declaratory judgment action, after receiving notice of the underlying action against Olsak, was
vexatious and unreasonable. The circuit court disagreed and explained that even though the Chilton
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Yambert Law Firm represented both Olsak and Pudlo, Country Mutual never received reports on
Olsak’s case. The court found that “Chilton Yambert’s knowledge of the affirmative defense is not
properly imputed to Country Mutual as Chilton Yambert was not being paid by Country Mutual
to represent Olsak.” Thus, when the case against Pudlo was dismissed in March 2002, the Chilton
Yambert Law Firm’s reporting requirements of the case to Country Mutual ended, and Country
Mutual did not have knowledge of the case until May 2004, when it retained Shipley, on behalf of
Pudlo, to monitor the case. Additionally, the court found that Country Mutual did not become
aware of Olsak’s June 2003 affirmative defense until after May 2004. After Fremd filed a
counterclaim for contribution in April 2003, Country Mutual filed its declaratory judgment action
in February 2005 in response to that counterclaim. Despite the length of years, the court found that
Country Mutual’s conduct was reasonable under the circumstances. That finding was not against
the manifest weight of the evidence.
¶ 114 Williams v. American Country Insurance Co., 359 Ill. App. 3d 128 (2005), is
distinguishable. In Williams, a taxicab company and one of its drivers were named as defendants
in a civil complaint. Id. at 131. Both defendants were insured by the same insurer, which assumed
their defense. Id. The interests of the defendants were diametrically opposed and presented the
insurer with a conflict of interest. Id. at 139. Nonetheless, the insurer controlled the driver’s
defense in the underlying case for nearly three years, despite the existence of the conflict and the
driver’s efforts to obtain new counsel. Id. at 142. The Williams court affirmed the circuit court’s
award of section 155 penalties, finding that the court did not abuse its discretion. Id. Here, unlike
in Williams, Country Mutual never assumed Olsak’s defense. Further, when Country Mutual
denied a defense to Olsak, there was not an obvious conflict of interest present.
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¶ 115 Based upon our review of the record, as well as the circuit court’s detailed opinion, we
cannot find that the circuit court’s decision was arbitrary, fanciful, or unreasonable or that no
reasonable person would adopt the court’s view. As such, the circuit court’s decision to deny
damages pursuant to section 155 was not an abuse of discretion.
¶ 116 III. CONCLUSION
¶ 117 We affirm the circuit court’s finding that the 2010 amended settlement was reasonable and
that the $6 million settlement amount was reasonable. We affirm the court’s decision to limit the
award against Country Mutual to the $3 million policy limits. We affirm the court’s denial of
Country Mutual’s posttrial motion for a setoff and motion for an independent medical examination.
Finally, we affirm the circuit court’s denial of the award of attorney’s fees and costs pursuant to
section 155 of the Insurance Code because Country Mutual’s conduct was not unreasonable or
vexatious.
¶ 118 Affirmed.
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2022 IL App (1st) 200695Decision Under Review: Appeal from the Circuit Court of Cook County, No. 05-CH-2618;
the Hon. Michael T. Mullen, Judge, presiding.
Attorneys Keith G. Carlson, Jeffery A. Bier, and David M. Jenkins, of
for Carlson Bier Associates, LLC, of Chicago, for appellant.
Appellant:
Normal J. Lerum and Catherine E. Lerum, of Norman J. Lerum,
P.C., of Chicago, and James Messineo, of James Messineo &
Associates, of Inverness, for other appellants.
Attorneys Catherine E. Lerum and Normal J. Lerum, of Norman J. Lerum,
for P.C., of Chicago, and James Messineo, of James Messineo &
Appellee: Associates, of Inverness, for appellees.
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