SIXTH DIVISION

								April 26, 2002

No. 1-01-2843

BARBARA SAICHEK,				)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellant,				)	Cook County.

							)

v.							)	No. 99 L 12079

							)

MALGORZATA LUPA, a/k/a Margaret Lupa;	)	

and VALENTIN ZDUNKEVICH,			)	Honorable

							)	Mary A. Mulhern,

	Defendants-Appellees.				)	Judge Presiding.

	JUSTICE O'BRIEN delivered the opinion of the court:

	Plaintiff, Barbara Saichek, appeals an order of the circuit court granting defendant,  Malgorzata

Lupa's section 2-619 of the Code of Civil Proocedure (735 ILCS 5/2-619 (West 1998))  motion to dismiss

plaintiff's negligence complaint based on a satisfaction/release of judgment that plaintiff executed with

codefendant Valentin Zdunkevich.  On appeal, plaintiff contends that the court erred in granting the

motion to dismiss where plaintiff executed the satisfaction/release of judgment only as to Zdunkevich,

and plaintiff did not intend to release her claim against Lupa.  We reverse and remand for further

proceedings.

	Plaintiff sustained injuries when the cab in which she was riding, driven by Zdunkevich, collided

with a car driven by Lupa.  Plaintiff filed a two-count complaint, with count I alleging Lupa's negligence

in causing the collision and count II alleging negligence on the part of Zdunkevich.  While Lupa filed

an answer to the complaint, Zdunkevich defaulted when he did not file an appearance or any other

response.  The case was assigned for a prove-up of damages and the court entered a default judgment

against Zdunkevich in the amount of $40,792.  Plaintiff then filed an action against American Country

Insurance Company (American Country), Zdunkevich's insurer, to collect on the judgment.  After American Country agreed to pay the judgment for $40,792 plus costs, plaintiff executed a

satisfaction/release of judgment as to American Country and Zdunkevich.  The satisfaction/release of

judgment specifically states that it pertains to the release of judgment "entered only against Valentin N. Zdunkevich & American Country Insurance" and the "cause remains pending as to defendant

Malgorzata Lupa." (Emphasis added.)

        	Lupa then filed a section 2-619 motion to dismiss plaintiff's complaint against Lupa based on the satisfaction/release of judgment.  The trial court granted Lupa's motion, stating:

	"[Tt]here has been a judicial determination to the amount of damages [plaintiff] suffered during

this car accident.  Because the damages are capped at $40,792 under that Holman case, ***

that's the cap of her damages.  She's gotten every penny, plus costs and interest.  There is nothing

that could proceed against Lupa."

Plaintiff filed this timely appeal.

	The sole issue on appeal is whether the trial court erred in granting Lupa's motion to dismiss

when the satisfaction/release of judgment executed by plaintiff specifically stated it released the judgment

"only" against Zdunkevich and American Country.  The standard of review for motions  to dismiss is de novo.  Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001). 

	Our case is similar to Holman v. Simborg, 152 Ill. App. 3d 453 (1987).  In Holman, the plaintiff filed a two-count complaint against the defendants to recover damages for injuries he sustained while

working on the roof of a building owned and managed by defendants.  Holman, 152 Ill. App. 3d at 454.  Count I was based upon defendants' negligence, and count II charged defendant's liability under the

Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars., 60 through 69).  Holman, 152 Ill. App. 3d at 454.  The trial court granted defendants' motion for a directed finding on the Structural Work Act count, and

the cause proceeded to trial on the negligence count.  Holman, 152 Ill. App. 3d at 454.  On August 17, 1982, the jury returned a verdict in favor of plaintiff, finding plaintiff suffered total damages in the

amount of $116,371.  The jury also found plaintiff 65 % comparatively negligent and reduced the award

accordingly to $40,730.  Holman, 152 Ill. App. 3d at 454-55.  The plaintiff in Holman appealed the directed finding. The appellate court remanded the cause for a new trial on defendants' liability under

the Structural Work Act with damages fixed at $116,371 "total damages" found by the original jury

verdict.  Holman, 152 Ill. App. 3d at 455.  

	Prior to the trial on remand, the plaintiff accepted a payment by defendants of $40,730 plus

interest in satisfaction of the August 17 judgment on the negligence count.  Holman, 152 Ill. App. 3d at 455.  The court issued an order stating that plaintiff, "'having received full satisfaction and payment of

the judgment of August 17, 1982, releases the judgment.'"  (Emphasis omitted.) Holman, 152 Ill. App. 3d at 455.   The cause proceeded to trial on the Structural Work Act count and the jury rendered a

verdict in favor of plaintiff for $75,641, the difference between total damages of $116,371, and the $40,730

paid to plaintiff in satisfaction of judgment on the negligence count.  Holman, 152 Ill. App. 3d at 455. 

	 The defendants appealed, contending that the payment made in satisfaction of the negligence

claim operated as a full satisfaction of plaintiff's injury claim.  Holman, 152 Ill. App. 3d at 455-56.  The appellate court disagreed, holding  that "the intent of the parties [was] of central importance" (Holman, 152 Ill. App. 3d at 456) and:

	"To determine the intent of the parties, it is necessary to examine the language of the

order of satisfaction and release in light of the circumstances existing at the time of the transaction. [Citation.] The record shows that at the time the order was entered, both

parties were aware that the cause had been remanded for a new trial on the issue of

liability under the Structural [Work] Act count.  There was no question that the

defendants, having abandoned their appeal on the amount of the negligence judgment,

owed the plaintiff at the very least the amount paid pursuant to the order.  It was under

these circumstances that the plaintiff insisted on qualifying the language of the order to

include a statement that it was intended to encompass only the 'judgment of August 17,

1982.'  We therefore conclude that  the qualifying language contained in the order, when

considered in light of the parties' knowledge that a second trial would take place,

establishes that the plaintiff did not intend to accept the payment as full satisfaction of

his injury claim."  Holman, 152 Ill. App. 3d at 456-57.  

	Here, plaintiff's claim for damages alleged one count of negligence against Lupa and another

negligence count against Zdunkevich.  Plaintiff subsequently executed a satisfaction/release of judgment

for $40,792  "only" as to Zdunkevich and his insurer, American Country, specifically stating that the

"cause remains pending as to defendant Malgorzata Lupa."  As in Holman, the qualifying language contained in the order, when considered in light of the parties' knowledge that plaintiff's claim alleged

one count of negligence against Lupa and one count of negligence against Zdunkevich, demonstrates

that plaintiff did not intend for the $40,792 payment to constitute full satisfaction of her injury claim.  

	Defendant Lupa contends that  the $40,792 assessed in plaintiff's prove-up constitutes total

damages and plaintiff, having received the entire amount from Zdunkevich, is entitled to only one full

satisfaction of her injury.  Lupa argues that if plaintiff recovers additional damages from her, plaintiff would receive double recovery for her injury.  

	Lupa's concern here is unfounded.  As discussed above, plaintiff did not intend for the payment

to constitute full satisfaction of her claim.  Further, the record does not contain a transcript of the prove-

up of damages to support Lupa’s contention that the prove-up addressed the total damages of the

plaintiff.  The clear language of the order, absent any evidence to the contrary in the record, shows that

plaintiff intended the payment to constitute only partial satisfaction of her claim.  Therefore, the

satisfaction/release of judgment executed against Zdunkevich and American Country does not bar

plaintiff from pursuing her claim against Lupa.  See Holman, 152 Ill. App. 3d at 456.

	Further, a defendant has a right to a setoff of plaintiff's settlement with a joint tortfeasor and the

defendant may raise this right at any time.  Kipnis v. Meltzer, 253 Ill. App. 3d 67, 69 (1993).  Any judgment entered against a nonsettling defendant will be reduced by the setoff amount, even if the

plaintiff's award is reduced to zero.  Kipnis, 253 Ill. App. 3d at 68.  Thus, any judgment awarded to plaintiff against Lupa will be reduced by $40,792, the amount plaintiff recovered in her judgment against

Zdunkevich.  Such a setoff eliminates the possibility that plaintiff will recover double damages for her

injury.

	For the foregoing reasons, we reverse the circuit court and remand for further proceedings.

	Reversed and remanded.

	O'BRIEN, J., with BUCKLEY, J., and O'MARA FROSSARD, J., concur.