author: PRESIDING JUSTICE WELCH

text:
    ROBERT L. KELLER, Plaintiff-Appellee and Cross-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5-87-0489
    Opinion filed March 17, 1989.

      Thomas H. Boswell, of Mitchell, Brandon & Schmidt, of Carbondale, for appellant.
    Thomas F. Crosby, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Defendant, State Farm Insurance Company, appeals following a jury trial in the circuit court of Williamson County which resulted in a verdict and judgment in favor of plaintiff, Robert L. Keller. The suit was originally brought by plaintiff for damages resulting from defendant’s breach of a contract of adjustment of an insurance claim, and for penalties under section 155 of the Illinois Insurance Code (111. Rev. Stat. 1987, ch. 73, par. 767) for defendant’s vexatious and unreasonable delay in the settlement of the insurance claim.

Plaintiff’s home in Marion, Illinois, was totally destroyed by tornado in May 1982. The home was insured by defendant insurance company for its replacement value. Under the terms of the policy, the insured is first paid the actual cash value of the home at the time of the loss, and if the home is thereafter repaired or replaced, the insured is paid the additional cost to repair or replace it, up to the designated policy limit.

After the tornado, State Farm claims adjuster Donald Long came to Marion as part of a special claims team to adjust insurance claims stemming from the tornado. He was assigned to adjust plaintiff’s claim. Long and plaintiff met only two times, the first time at the site of plaintiff’s destroyed home only a few days after the tornado. On June 7, 1982, plaintiff went to the Marion Holiday Inn, where Long had set up a temporary office. Plaintiff did not have an appointment, and Long had just gotten out of the shower and was not expecting plaintiff.

Plaintiff told Long that he wanted to settle his claim. Long calculated the actual cash value of plaintiff’s home at the time of the loss to be $50,939.43, and, after subtracting the $100 deductible provided for under the policy, issued plaintiff a check in the amount of $50,839.43. Long then produced a document entitled “Property Claim Agreement” and explained to plaintiff that he would be entitled to an additional sum of money in the event he repaired or replaced his home. The property claim agreement recited that upon repair or replacement of his house, plaintiff would be entitled to receive the lesser of either the amount actually expended, or the sum of $11,458.94. At that time, plaintiff did not know the limit of his insurance policy and relied entirely on Long’s computations. Long did have information in his file as to the limit of plaintiff’s insurance. Long testified that an insured would be unable to calculate the limit of his insurance even if he had a copy of his policy, as the amount is adjusted periodically for inflation.

Thereafter, plaintiff elected to replace his home and entered into a contract to purchase a home from his son for the sum of $70,000. On July 1, 1982, plaintiff went to the local State Farm office and told his agent, Dean Colp, that he wanted the rest of the money due him under the property claim agreement. Colp told plaintiff that he would have to present a written contract to purchase the home. On July 7, 1982, plaintiff presented Colp with a contract to purchase the home and with the property claim agreement. Colp took both documents to the local claims office, where he was told that Long had made a mistake in his calculations. The sum set forth in the property claim agreement exceeded plaintiff’s policy limit. Under the terms of the insurance policy, the maximum amount plaintiff could receive was $56,139.93. Under the property claim agreement, plaintiff was to receive a total of $62,298.37. Defendant refused to pay plaintiff the amount due under the property claim agreement and, instead, paid plaintiff only the maximum amount allowed under the policy. Defendant issued plaintiff a check in the amount of $5,300.50 on July 8, 1982. Plaintiff negotiated the check the next day.

On January 10, 1984, plaintiff filed a complaint in the circuit court of Williamson County. Defendant’s motion to make the complaint more definite and certain was granted, and an amended complaint was filed on June 3, 1985. Defendant filed a motion to dismiss the amended complaint, which was granted in part. On April 7, 1986, plaintiff filed a second amended complaint in three counts. Count I alleged a breach of contract of adjustment. Count II, pled in the alternative to count I, alleged a breach of an implied-in-fact contract. Count III sought penalties for defendant’s vexatious and unreasonable delay in settling plaintiff’s claim. Defendant filed an answer to count III of the complaint, but filed a motion to dismiss counts I and II. The motion to dismiss argued that count I of the complaint, which sought to state a cause of action for breach of an express contract of adjustment, failed to allege any facts indicating consideration for the alleged contract. This motion was denied, and defendant subsequently filed an answer to the second amended complaint. In its answer, defendant raised several affirmative defenses, including that plaintiff had never given any consideration for defendant’s promise to pay an amount in excess of the policy limit and that defendant’s promise to pay an amount in excess of the policy limit was the result of a mutual mistake of fact.

On January 12, 1987, plaintiff filed a third amended complaint which was substantially identical to counts I and III of the second amended complaint. Count II of the second amended complaint was omitted from the third amended complaint. Defendant filed its answer on January 13, 1987.

Trial commenced on January 12, 1987. At the close of plaintiff’s case, defendant moved for a directed verdict based on the lack of any evidence of consideration for defendant’s promise to pay an amount greater than the policy limit. The motion was denied. At the close of all the evidence, plaintiff moved to strike the defendant’s first affirmative defense regarding the lack of consideration. The court granted the motion, finding that consideration is an element of plaintiff’s case, on which plaintiff has the burden of proof, and therefore it is not a proper affirmative defense. At the close of all the evidence, defendant again asked for a directed verdict on the basis that plaintiff had not established that he had given consideration for defendant’s promise to pay an amount greater than the policy limit. Defendant argued that, because plaintiff had received payment of the policy limit, he had no right to sue for a greater sum and therefore forbearance from suit could not serve as consideration. The court denied the motion. Defendant also moved for a directed verdict on the basis that the contract of adjustment was the result of a mutual mistake. This motion was also denied.

On January 13, 1987, the jury returned a verdict in favor of plaintiff and against defendant, and assessed plaintiff’s damages at $7,544.67.

A hearing on count II of the third amended complaint was held February 5, 1987. After hearing evidence and argument, the trial court found that defendant’s delay in paying plaintiff’s claim had been vexatious and unreasonable, and ordered defendant to pay plaintiff attorney fees in the amount of $2,514.89, costs in the amount of $449 and a penalty in the amount of $1,886.17 pursuant to section 155 (111. Rev. Stat. 1987, ch. 73, par. 767).

Defendant raises numerous issues on appeal. The first three issues relate to the subject of consideration for defendant’s promise to pay more than the policy limit, an issue which was hotly disputed in the trial court. Defendant argues that: (1) the trial court erred in failing to dismiss plaintiff’s third amended complaint for failure to state a cause of action for breach of contract because plaintiff did not plead the element of consideration in support of the alleged contract; (2) the trial court erred in denying defendant’s motions for directed verdict in that plaintiff failed to establish that any consideration had been given in support of the alleged contract; and (3) the jury’s verdict was against the manifest weight of the evidence in that plaintiff failed to establish the essential element of consideration in support of the alleged contract.

With respect to the deficiency of the complaint, defendant correctly argues that, in order to state a cause of action for breach of contract, the plaintiff must plead the existence of a contract. In order to do this, a plaintiff must allege facts sufficient to indicate the essential elements of a contract, i.e., offer, acceptance and consideration. (Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 864, 341 N.E.2d 101, 104-05.) Defendant argues that plaintiff’s complaint contains no allegation of fact to indicate that any consideration was given for the alleged contract of adjustment. Defendant’s argument seems to be that, because the policy limit was paid, plaintiff could not have sued defendant for a greater amount, and therefore, forbearance from suit could not have served as the consideration for the adjustment contract.

Pleadings are to be liberally construed with a view to doing substantial justice between the parties. (In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 785, 479 N.E.2d 500, 506.) Thus, no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim which he is called upon to meet. (Schwebel, 133 Ill. App. 3d at 785, 479 N.E.2d at 506.) Plaintiff’s complaint alleges that during the adjusting of plaintiff’s property damage claim, defendant promised to pay plaintiff $11,458.94, and that plaintiff and defendant entered into a property claim agreement which effected settlement of plaintiff’s property insurance claim. We think these allegations are sufficient to inform defendant that the consideration being pled is plaintiff’s compromise of his disputed property insurance claim and his forbearance from suit thereon.

The compromise of a disputed claim will serve as consideration (LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 735, 442 N.E.2d 1367, 1372), as will a promise to forego legal action. (Redarowicz v. Ohlendorf (1981), 95 Ill. App. 3d 444, 448, 420 N.E.2d 209, 212, modified (1982), 92 Ill. 2d 171, 441 N.E.2d 324.) Even if the claim is not valid, its compromise will support a settlement agreement as long as the claim is asserted in good faith. (Le-Master, 110 Ill. App. 3d at 735, 442 N.E.2d at 1372.) Defendant does not contend that plaintiff did not act in good faith in accepting the property claim agreement in full settlement of his claim. Instead, defendant admits that plaintiff could not have known that the offered amount was in excess of plaintiff’s policy limit. We think that plaintiff’s complaint was sufficient to inform defendant of the facts upon which plaintiff relied to indicate consideration for the property claim agreement.

Whether to grant or deny a motion to dismiss a complaint is within the sound discretion of the trial court. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976, 983.) The trial court’s denial of defendant’s motion to dismiss was not an abuse of discretion.

Defendant also argues that the trial court erred in denying its motions for directed verdict at the close of plaintiff’s case and at the close of all the evidence. Defendant argues that plaintiff failed to present sufficient evidence at trial to establish that consideration had been given in support of the contract of adjustment. Specifically, defendant argues that plaintiff did not offer evidence that he had paid premiums to defendant for the sum of money offered in the property claim agreement, or that plaintiff forbore from bringing suit for a greater amount than was offered. Defendant argues that since the amount in the property claim agreement exceeds the policy limit, plaintiff could not have sued for a greater amount. For the same reason, defendant argues that the jury’s verdict in favor of plaintiff is against the manifest weight of the evidence.

It is well settled that verdicts ought to be directed only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513.) In evaluating the evidence, all reasonable inferences must be made in favor of the party opposing the motion for directed verdict. (Thorne v. Elmore (1979), 79 Ill. App. 3d 333, 340, 398 N.E.2d 837, 844.) This same test is to be applied in reviewing the trial court’s decision on a motion for a directed verdict. (Thorne, 79 Ill. App. 3d at 340, 398 N.E.2d at 844.) Furthermore, the jury’s verdict can be reversed as against the manifest weight of the evidence only if all the evidence, viewed in the light most favorable to appellee, so overwhelmingly favors appellant that no contrary verdict could ever stand, or if the verdict is palpably erroneous and wholly unwarranted, clearly the result of passion or prejudice, or arbitrary, unreasonable and not based upon the evidence. (Albers v. Community Consolidated No. 204 School (1987), 155 Ill. App. 3d 1083, 1085, 508 N.E.2d 1252, 1254.) In this case, the evidence does not so overwhelmingly favor defendant/appellant, nor is the verdict palpably erroneous or unreasonable.

Plaintiff testified at trial that he understood his insurance policy to be a full replacement policy and that if defendant had offered him a sum of money less than the estimated cost of replacing his home, he would not have accepted it. He testified that he settled his claim with defendant when he met Long at the Holiday Inn, received a check in the approximate amount of $50,000, and was told that he would receive an additional sum of approximately $11,000 upon building or buying a new house. Plaintiff testified that he agreed to these terms in settlement of his claim for property damage, and that he understood that by accepting the offer, he was agreeing not to seek any additional money from defendant for his property damage. Common sense dictates that defendant would not have agreed to settle plaintiff’s claim without such an understanding.

We think this evidence and the reasonable inferences therefrom, when viewed in the light most favorable to plaintiff, are sufficient to establish that plaintiff entered into a compromise settlement of a disputed claim and agreed to forebear from suit against defendant in return for defendant’s promise to pay the sum óf $11,459.94 upon plaintiff’s purchase of a new home. As pointed out above, this is sufficient consideration for defendant’s promise in spite of the fact that plaintiff’s claim for more than his policy limit might not have been valid. The trial court properly denied defendant’s motions for directed verdict, and the jury’s verdict is not against the manifest weight of the evidence.

Defendant also argues that the trial court’s denial of its affirmative defense of mutual mistake was against the manifest weight of the evidence. Plaintiff counters that any mistake in the contract of adjustment was a unilateral mistake on the part of defendant, and that, in any event, rescission of the contract should not be granted where the mistake was due to defendant’s own failure to exercise ordinary care and plaintiff could not be placed in statu quo. We need not determine whether the mistake here was mutual or unilateral as the requirements for rescission of the contract are the same in either case.

In order to rescind a contract on the basis of either a unilateral or mutual mistake of fact, the party seeking rescission must show by clear and positive evidence that a mistake has been made in a material feature of the contract, that the mistake is of such grave consequence that to enforce the contract would be unconscionable, that the mistake occurred notwithstanding the exercise of due care on the part of the party seeking rescission, and that the other party can be placed in statu quo. WilFred’s Inc. v. Metropolitan Sanitary District of Greater Chicago (1978), 57 Ill. App. 3d 16, 21, 372 N.E.2d 946, 951.

There is no dispute in the instant case that there was a mistake made in the contract of adjustment and that it relates to a material feature of the contract. Plaintiff presented no evidence as to whether enforcement of the contract would be unconscionable. The argument of the parties, and apparently the decision of the trial court, relates to whether defendant exercised due care in execution of the contract.

Defendant’s agent, Long, testified at trial that plaintiff presented himself at Long’s motel room without an appointment and stated that he wanted to settle his claim. Long had just gotten out of the shower and was unprepared for plaintiff’s visit. Long was forced to make his calculations and prepare the property claim agreement while plaintiff waited. Long erred in preparing the contract in that he transposed from his calculations a figure representing the depreciation amount onto the property claim agreement as the replacement amount. Long did have the correct figure in front of him, but erred in filling out the property claim agreement. There is no evidence that plaintiff was rushing Long or that there was any other reason for Long to rush or that he did rush in preparing the contract.

Defendant argues that Long’s error does not amount to a failure to exercise ordinary care. Both the trial court and the jury disagreed. The trial court submitted advisory interrogatories to the jury inquiring whether they believed the mistake in the contract was a result of defendant’s failure to exercise ordinary care. The jury found that it was. Thereafter, the trial court denied defendant’s affirmative defense of mistake. The applicable standard of care is whether a person of reasonable prudence would have acted in the same manner under the same circumstances. (McCracken Contracting Co. v. R.L. De-Prizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 687, 462 N.E.2d 682, 687.) The question of due care is a factual question to be determined by the trial court, and such determination will not be disturbed unless it is against the manifest weight of the evidence. (WilFred’s Inc., 57 Ill. App. 3d at 24, 372 N.E.2d at 952.) The trial court’s finding of defendant’s failure to exercise ordinary care is not against the manifest weight of the evidence.

In John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 367 N.E.2d 695, the supreme court found that the mistake of a plumbing subcontractor in failing to include in its bid the cost of the entire water supply system was a result of the subcontractor’s failure to exercise ordinary care. The mistake was not discovered until four months after the bid had been accepted. The court found this to be worse than Steinmeyer v. Schroeppel (1907), 226 Ill. 6, 80 N.E. 564, where a clerical miscalculation in addition, discovered the day the bid was accepted, was found to be the result of the bidder’s failure to exercise reasonable care. The supreme court found “no evidence tending to prove any special circumstances excusing the blunder.” (226 Ill. at 13, 80 N.E. at 565.) Similarly, in this case, we find no evidence tending to prove any special circumstances excusing defendant’s error in preparing the property claim agreement.

Also pertinent is McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 462 N.E.2d 682, where it was found that

“[t]he uncontroverted facts are that defendants agreed to a settlement in consideration for the dismissal of a lawsuit without verifying the amount due through their own records ***. Any allegation of diligence made by defendants is unequivocally refuted by these facts. There is no question that all of the information necessary to arrive at a settlement was within defendants’ knowledge and that plaintiff never attempted to conceal anything from defendants. That [sic] fact that the settlement was made on an allegedly incorrect basis is not now sufficient reason for disregarding a settlement made with ample opportunity to verify and obtain full knowledge of the facts.” (122 Ill. App. 3d at 687, 462 N.E.2d at 687.)

The trial court’s finding in the instant case that the mistake in the contract of adjustment was a result of defendant’s failure to exercise ordinary care is not against the manifest weight of the evidence. In light of this finding, we need not discuss whether the evidence showed whether plaintiff could be placed in statu quo upon rescission of the contract.

The next argument raised by defendant on appeal is that the cumulative effect of two erroneous evidentiary rulings by the trial court deprived defendant of a fair trial. Specifically, defendant argues that the trial court erred in allowing into evidence a promissory note to the People’s Bank of Marion entered into by plaintiff, and in sustaining plaintiff’s objection to an attempted impeachment of the plaintiff during cross-examination by the defendant.

At trial, plaintiff testified that, when defendant refused to issue him a check in the full amount set forth in the property claim agreement, he was forced to take out a loan in the amount of $7,000 to complete the purchase of the house he had contracted to buy. When plaintiff’s attorney asked plaintiff the amount of the loan, defendant’s counsel objected, stating, “That is not relevant to the issues.” The objection was overruled. When plaintiff offered the promissory note into evidence, defendant objected on the grounds of hearsay and relevancy. The objection was overruled, and the promissory note was admitted into evidence. Defendant now argues that the trial court erred in failing to sustain his objection on the ground of relevancy.

We disagree and find that the promissory note was relevant to the issue of consideration for the contract of adjustment, and also to show that plaintiff could not be placed in statu quo in the event of rescission of the contract on the basis of mistake. Evidence is relevant if it has a tendency to make a necessary fact more or less probable. (Benson v. Bradford Mutual Fire Insurance Corp. (1984), 121 Ill. App. 3d 500, 510, 459 N.E.2d 689, 695.) It was plaintiff’s theory at trial that the undertaking of a legal obligation from which one is otherwise privileged can serve as consideration for another’s promise. Plaintiff argued that he entered into a binding contract to purchase a house in return for defendant’s promise to pay him the amount set forth in the property claim agreement. The promissory note was offered into evidence to show that the contract to purchase the house was a binding legal obligation from which plaintiff could not escape. Furthermore, the promissory note was relevant to show that plaintiff could not be placed in statu quo in the event the contract of adjustment was rescinded because of mistake.

The determination whether evidence is relevant is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. (Benson, 121 Ill. App. 3d at 510, 459 N.E.2d at 695.) We find no abuse of discretion in the trial court’s admission into evidence of the promissory note.

Defendant also argues that the trial court erred in sustaining plaintiff’s objection to defendant’s attempted impeachment of plaintiff. At trial, plaintiff testified that defendant had never explained to him what his policy limit was. Defendant tried to impeach plaintiff’s credibility by referring to a deposition of plaintiff in which plaintiff had stated, “I suppose Mr. Long explained [the policy limit] to me when he gave me the breakdown on it, I don’t recall.” Plaintiff recalled the deposition, but could not recall the specific question and answer referred to, although he did not deny his answer. Plaintiff objected to the attempted impeachment on the basis that it was not impeaching. The objection was sustained. Defendant argues the trial court erred in sustaining the objection.

In order to be used for impeachment, a prior statement of a witness must be materially inconsistent with his trial testimony. (People v. Rainford (1965), 58 Ill. App. 2d 312, 321, 208 N.E.2d 314, 319.) The test to be applied in determining if the statement is materially inconsistent is whether it has a reasonable tendency to discredit the direct testimony on a material matter. (Rainford, 58 Ill. App. 2d at 321, 208 N.E.2d at 319.) A witness is not to be impeached by a variance in slight particulars between his trial testimony and the prior statement where there is no material inconsistency or contradiction. (Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 899, 401 N.E.2d 1196, 1201.) The inconsistency must be great enough to deny or contravene the material matter. (Grabner, 81 Ill. App. 3d at 899, 401 N.E.2d at 1201.) Whether to allow the admission of evidence for impeachment purposes is within the discretion of the trial court, and a reviewing court will not disturb the decision of the trial court absent an abuse of discretion. People v. Williams (1985), 131 Ill. App. 3d 597, 609, 475 N.E.2d 1082, 1090; Sommese v. Maling Brothers, Inc. (1965), 65 Ill. App. 2d 223, 237, 213 N.E.2d 153, 160, rev’d on other grounds (1966), 36 Ill. 2d 263, 222 N.E.2d 468.

We find no abuse of discretion in the trial court’s sustaining plaintiff’s objection to the attempted impeachment. Plaintiff stated in the deposition that he could not recall if Long explained his policy limit to him, but he supposed that he had. At trial, plaintiff recalled that Long had not explained the policy limit to him. The deposition was not inconsistent with plaintiff’s trial testimony, as inability to remember a fact prior to trial is not inconsistent with later recall at trial. (Grabner, 81 Ill. App. 3d at 899, 401 N.E.2d at 1201.) The trial court did not err in either of its evidentiary rulings, and defendant was not prejudiced thereby.

Defendant’s next argument on appeal is that the trial court erred in refusing to give defendant’s tendered jury instructions No. 6 and No. 7, and in giving over defendant’s objection plaintiff’s instruction No. 21. Defendant’s instruction No. 6 states:

“A contract is an agreement between competent parties upon which a consideration sufficient in law to do or not to do a particular thing. An offer, an acceptance and consideration are basic ingredients of a contract.”

Defendant’s instruction No. 7 states:

“Consideration is a basic element for the existence of a contract. Any act or promise which is of benefit to one party or disadvantage to the other is a sufficient consideration to support a contract.”

Defendant argues that these instructions should have been given because defendant’s theory of defense was the lack of consideration for the contract of adjustment.

Defendant is correct that a party has the right to have the jury instructed upon his theory of defense (Hitt v. Langel (1968), 93 Ill. App. 2d 386, 393, 236 N.E.2d 118, 122) and that his instructions No. 6 and No. 7 correctly state the law. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329, 371 N.E.2d 634, 639.) However, defendant is incorrect when he argues that no other instruction pertaining to the definition of consideration was tendered by plaintiff.

Plaintiff’s instruction No. 16 was given to the jury. It is substantially identical to defendant’s instructions No. 6 and No. 7, and states:

“A contract is an enforceable agreement. A contract is formed when a party makes an offer and another party accepts that offer, the contract becomes enforceable if both of the parties provide consideration.
Consideration is any act or promise which is of benefit to one party or is a disadvantage to the other. Whether a given act of a party constitutes consideration must be determined based on the circumstances which existed at the time the contract was agreed upon, not from hindsight of how parties fair [sic] under the contract.”

Defendant is not entitled to have the jury instructed more than one time as to the definition of consideration or its indispensability to the formation of an enforceable contract. The trial court did not err in refusing to give defendant’s instructions No. 6 and No. 7, and defendant suffered no prejudice thereby.

Plaintiff’s instruction No. 21 states:

“If you find the parties entered into a settlement agreement of the insurance claim in good faith, the provisions of the insurance contract do not prevent the enforcement of the settlement agreement.”

Defendant argues on appeal that this instruction “is an abstract statement of the law taken completely out of context of the case from which it derives,” and “completely bypasses the concept of consideration.” Defendant argues that this instruction allowed the jury to find for plaintiff despite the absence of any evidence of consideration to support the contract of adjustment and thereby emphasizes plaintiff’s theory of the case. Defendant made similar objections before the trial court.

We find defendant’s objection to this instruction to be insufficient to adequately specify the error. Objections to instructions must be made with sufficient particularity to afford the court identity of the error relied upon. (Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 1011, 385 N.E.2d 780, 782.) Objections must specifically point out wherein the instruction is an incorrect statement of the law or not applicable. (Culp v. Olive (1964), 45 Ill. App. 2d 396, 406, 195 N.E.2d 729, 734.) The failure to specifically set forth the error with sufficient clarity to identify the issue constitutes a waiver of objections to the instruction. (Mathis, 67 Ill. App. 3d at 1012, 385 N.E.2d at 782.) Thus, it has been held that an objection that an instruction fails “to state the law” is insufficient to adequately specify the error and the objection to said instruction is waived. Mathis, 67 Ill. App. 3d at 1012, 385 N.E.2d at 782.

Similarly, in the instant case, defendant’s objection to plaintiff's instruction No. 21 is insufficient to adequately specify the error, and defendant has waived any error with respect thereto. Furthermore, the jury was otherwise adequately instructed that it must find that there was consideration for the contract of adjustment in order to enforce that contract.

The final issue raised by defendant is whether the trial court’s finding that defendant’s refusal to pay plaintiff the full amount provided in the property claim agreement constituted vexatious and unreasonable conduct within the meaning of section 155 of the Illinois Insurance Code is against the manifest weight of the evidence. Section 155 provides in pertinent part:

“(1) In 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 an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $25,000;
(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.” (111. Rev. Stat. 1987, ch. 73, par. 767.)

After hearing evidence and argument on this issue, the trial court found that the failure of defendant to pay plaintiff the full amount it had agreed to pay him in the property claim agreement was both unreasonable and vexatious. Accordingly, the court ordered defendant to pay plaintiff the sum of $449 as costs, $2,514.89 as attorney fees, and penalties in the amount of $1,886.17, representing 25% of the jury verdict.

Defendant argues that the trial court’s finding that defendant’s conduct was unreasonable and vexatious is against the manifest weight of the evidence. Defendant argues that plaintiff’s claim for an amount greater than the policy limit is a novel one, having never been addressed by an Illinois Appellate Court. In such a case, defendant argues, delay in payment of the claim is not vexatious and unreasonable. Defendant argues that its denial of plaintiff’s claim was made in good faith.

The allowance of fees and penalties under section 155 is within the judgment and discretion of the trial court, and its determination thereon will not be disturbed on review absent an abuse of discretion. (National Tea Co. v. Commerce & Industry Insurance Co. (1983), 119 Ill. App. 3d 195, 209, 456 N.E.2d 206, 216.) The question of vexatious and unreasonable delay is a factual one, which must be based upon an assessment of the totality of the circumstances, taken in broad focus. (Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 832, 433 N.E.2d 378, 383.) Neither the length of time, the amount of money involved, nor any other single factor taken by itself is controlling in determining if a delay is vexatious or unreasonable. (Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 124, 371 N.E.2d 1147, 1149.) It is the attitude of the defendant which must be examined. (Deverman, 56 Ill. App. 3d at 124, 371 N.E.2d at 1149.) Attorney fees and penalties are not awarded simply because the insurer refuses to settle or was unsuccessful in litigation. (Deverman, 56 Ill. App. 3d at 124, 371 N.E.2d at 1149.) If there is a bona fide dispute about coverage, delay in settling a claim may not violate the statute. Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 999, 493 N.E.2d 638, 645.

In the case now before us we do not find a bona fide dispute between the parties. Although defendant argues that plaintiffs claim is a novel one which defendant reasonably defended, we do not agree. Plaintiffs suit was for breach of a contract of adjustment. This is not a novel claim. Defendant argues that because the contract of adjustment provided for payment in excess of the policy limit, it was a novel claim. Again, we do not agree. Plaintiffs suit is simply a claim for money which defendant promised it would pay him, pursuant to a settlement agreement, a promise which defendant never denied making. Defendant admitted that the mistake in the contract of adjustment was its own fault and defendant knew that plaintiff had changed his position in reliance on defendant’s promise. Defendant should have known that under these circumstances any defense based on mistake was unfounded.

The trial court did not abuse its discretion in finding that defendant’s conduct in refusing to pay plaintiff the amount owed under the contract of adjustment was vexatious and unreasonable under section 155 of the Illinois Insurance Code. Ill. Rev. Stat. 1987, ch. 73, par. 767.

We turn now to plaintiff’s cross-appeal. After finding that defendant’s conduct had been vexatious and unreasonable, the trial court ordered defendant to pay attorney fees, costs and a penalty. With regard to attorney fees, the court found that plaintiff’s attorney had submitted a bill for $13,819.50, representing 180.6 hours of work billed at an hourly rate of $75. The parties stipulated that the work had actually been performed, and the court found that the work had been necessary and that $75 per hour is a reasonable fee. However, because the court found that plaintiff had retained his attorney on a one-third contingency fee basis, it awarded attorney fees in the amount of $2,514.89, representing one-third the amount of the jury verdict.

Plaintiff filed a motion for modification of this judgment, asking that attorney fees be awarded on an hourly basis rather than on the basis of the contingent fee agreement. This motion was denied. However, on June 1, 1987, the trial court entered an amended order which states:

“2. The Court finds that not to award attorneys’ fees on an hourly basis *** encourages insurance companies to unreasonably delay settlement and payment of smaller claims.

3. Lawyers cannot afford to represent insureds with smaller claims on a contingency fee basis because the fee generated will not adequately compensate the attorney for the amount of work which is necessarily expended in bringing these claims to trial.

4. The statutory purpose underlying Section 767 [sic] and a recognition of the disparate economic positions of the insurer and insured dictate that the law should recognize the statutory right to recover attorneys’ fees pursuant to Section 767 [sic] be calculated on an hourly or contingency fee basis, whichever is greater.

5. However, despite the Court’s findings that the work performed by Plaintiff’s attorney was necessary for the preparation of trial in this cause and that the hourly rate charged was reasonable, on the evidence presented, the Court is constrained by the terms of the Employment Agreement between Plaintiff and his attorneys which provided payment on a contingency fee basis.”

Plaintiff appeals from this judgment, asking that attorney fees be awarded in the amount of $13,819.50, and also that plaintiff be awarded the amount of reasonable attorney fees incurred in the appeal of this cause.

We believe the trial court had the right idea, but reached the wrong result. The purpose of section 155 of the Illinois Insurance Code is not only to aid the insured, but also to discourage insurers from profiting by their superior financial positions while delaying in the payment of contractual obligations. (Hall v. Svea Mutual Insur ance Co. (1986), 143 Ill. App. 3d 809, 812-13, 493 N.E.2d 1102, 1105.) These purposes would be frustrated if the recovery of attorney fees under section 155 is restricted to what has been agreed to under a contingent fee agreement. Such a restriction will hamper insureds with small claims from obtaining legal counsel to whom they may have to pay legal fees on an hourly basis even if they ultimately lose, and attorneys will hesitate to accept meritorious claims which may involve hours in excess of what the attorney could recover under a contingent fee agreement. This result would defeat the purpose of section 155 by encouraging insurers to engage in dilatory and vexatious refusals to pay small claims.

Section 155 provides for the payment of “reasonable” attorney fees. We think the term “reasonable” applies regardless of the nature of the client’s contractual relationship with his attorney. For example, a contingent fee agreement providing for a fee of 80% of any amount recovered might be deemed unreasonable in some cases. We do not think the courts are constrained by the contingent fee agreement from reducing that amount to a reasonable fee under section 155. Courts should not be restricted to the contingent fee agreement in such a case. Similarly, where the amount of fees provided in the contingent fee agreement is unreasonably small, the court may award a reasonable amount under section 155 regardless of the contingent fee agreement. Such is the case now before us.

Defendant points out that in Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 493 N.E.2d 638, an award of attorney fees based on a contingent fee agreement was upheld. However, in Mohr, the parties stipulated that the amount to be awarded under the contingent fee agreement was reasonable. Such is not the case before us now.

We think the trial court erred in finding that it was constrained by the terms of the contingent fee agreement in awarding attorney fees. The statute provides for the payment of “reasonable” attorney fees. The trial court’s finding that $2,514.89 is a reasonable attorney fee in this case is against the manifest weight of the evidence, and we reverse that portion of the trial court’s judgment. Pursuant to the power vested in us by Supreme Court Rule 366 (107 Ill. 2d R. 366), we assess attorney fees in the amount prayed for, $13,819.50, which the evidence clearly supports.

Plaintiff has also requested an award for attorney fees incurred in this appeal. The trial court found defendant’s delay in paying plaintiff’s claim to be vexatious and unreasonable. We find that defendant’s further delay through its appeal of this cause is also vexatious and unreasonable. We therefore remand this cause to the circuit court of Williamson County for a determination and award to plaintiff of a reasonable attorney fee incurred in defending and prosecuting this appeal. See Hall v. Svea Mutual Insurance Co. (1986), 143 Ill. App. 3d 809, 812, 493 N.E.2d 1102, 1105; Songer v. State Farm Fire & Casualty Co. (1982), 106 Ill. App. 3d 141, 147, 435 N.E.2d 948, 952.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded for further proceedings.

HARRISON and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH JUSTICE GREEN,

license: Public Domain

text:
    ERICA HENRY, by her Mother and Next Friend, Jane Henry, Plaintiff-Ap-pellee, v. ST. JOHN’S HOSPITAL et al., Defendants (St. John’s Hospital et al., Defendants-Appellants).
    Fourth District
    No. 4—88—0491
    Opinion filed March 17, 1989.
    Rehearing denied April 13, 1989.

      GREEN, J., dissenting.
    Graham & Graham, of Springfield, Pierce & Meyer, of Chicago, and Heyl, Royster, Voelker & Allen, of Peoria (Hugh Graham III, John Meyer, Gary M. Peplow, and Karen L. Kendall, of counsel), for appellants.
    Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville (Bruce N. Cook, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

St. John’s Hospital and Dr. Shari Fitzgerald (St. John’s-Fitzgerald) appeal a trial court order finding them liable to plaintiff for $5,511,759, plus interest. This amount is the balance of a compensatory damages award resulting from a combined medical malpractice, products liability action brought by plaintiff, who settled after judgment with one group of defendants.

St. John’s-Fitzgerald argues: (1) the trial court’s ruling is contrary to the jury verdict in the personal injury action; (2) the ruling is contrary to the purposes of “An Act in relation to contribution among joint tortfeasors” (Contribution Act) (111. Rev. Stat. 1987, ch. 70, par. 301 et seq.); (3) plaintiff waived her right to joint and several liability by settling with Sterling Drug, Inc., and Breon Laboratories, Inc. (Sterling-Breon); (4) judicial estoppel precludes plaintiff from recovering the portion of the judgment attributable to Sterling-Breon from St. John’s-Fitzgerald; and (5) the trial court erred in fixing the amount of post-judgment interest and determining setoff.

We reverse and remand.

Plaintiff was severely injured during birth as the result of the administration of Marcaine, an anesthetic, to her mother. Plaintiff sued St. John’s-Fitzgerald alleging Fitzgerald negligently administered the drug without proper authority. She also sued Sterling-Breon for failure to properly warn about the drug and alleging a failure to contraindicate it for use in paracervical blocks prior to the time of plaintiff’s injury. Sterling-Breon filed a contribution claim against St. John’s-Fitzgerald, in which they alleged Fitzgerald was negligent in administering the drug. The jury returned a verdict against all defendants and assessed their pro rata share of the compensatory damages. It found Sterling-Breon had a 93% pro rata share of plaintiff’s damages and St. John’s-Fitzgerald a 7% share. It assessed a total of $10 million in compensatory damages, $1.5 million of which was for medical expenses. The verdict form stated:

“We, the jury, find for the plaintiff and against the following defendants and determine their pro rata share of compensatory damages in the following amounts:
Ixl Sterling Drug, Inc. 46.5%
Ixl Breon Laboratories, Inc. 46.5%
Ixl St. John’s Hospital/
Dr. Shari Fitzgerald 7 %
TOTAL 100 %
Disability $6,000,000.00
Disfigurement $1,000,000.00
Pain and Suffering $1,500,000.00
Medical Expenses $1,500,000.00”

The jury was told to put an “x” in the box beside the name of the defendant it found liable. Subsequently, the trial court reduced the award for medical expenses to $11,759 and entered judgment against all defendants for $8,511,759. The jury also returned a verdict finding Sterling-Breon liable for $7 million in punitive damages.

Plaintiff’s mother, Jane Henry, brought an individual action against all defendants, in which she alleged their actions constituted an intentional infliction of emotional distress. Jane Henry’s action was dismissed on the pleadings. St. John’s-Fitzgerald and Sterling-Breon appealed the jury verdict for plaintiff. Jane Henry appealed the dismissal of her individual action.

On May 19, 1987, while the appeals were pending, plaintiff filed a petition for approval of minor’s settlement and for a good-faith finding pursuant to the Contribution Act. The settlement stated:

“1. In consideration of the payment as described and provided for in paragraphs 5(b) and 5(c) hereof, the sufficiency of which is hereby acknowledged, and other good and valuable consideration, the undersigned *** hereby unconditionally release, acquit and forever discharge Breon Laboratories Inc. and Sterling Drug Inc. *** of and from any and all obligations, claims, debts, demands, covenants, contracts, promises, agreements, liabilities, controversies, costs, expenses, interest, attorneys’ fees, actions or causes of actions *** including but not limited to the claims and matters set forth in the action entitled ERICA HENRY, by her mother and next friend, JANE HENRY V. ST. JOHN’S HOSPITAL, BREON LABORATORIES, INC., DR. THOMAS O’HERN, STERLING DRUG, INC., AND DR. SHARI FITZGERALD, No. 83-L-395, in the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois (Judge Richard J. Cadigan presiding) (‘pending action’).”

Paragraph 2 provided for the release of Jane Henry’s action for $350,000. Paragraph 3 of the release provided that simultaneously with and as “material consideration for the execution of this Agreement” and as a condition precedent to the payment of obligations by Sterling-Breon, counsel for plaintiff, plaintiff’s mother, and Sterling-Breon would execute and file a stipulation dismissing the pending action with prejudice and vacating the judgment outstanding against Sterling-Breon.

Paragraph 5 of the agreement stated that in consideration for the release, Sterling-Breon would make a cash payment to Jane Henry and Thomas Henry in settlement of Jane’s individual action. Further, a payment of $1.4 million in cash would be made to plaintiff’s guardian. In addition, Sterling-Breon agreed to purchase an annuity from an insurance company for $1.6 million. The agreement specifically stated plaintiff and her parents intended to pursue their claim against St. John’s-Fitzgerald. Plaintiff and her parents agreed to indemnify Sterling-Breon from any claims brought by St. John’s-Fitzgerald on any theory including contribution. The agreement further provided that if plaintiff or her parents succeeded in recovering any monies from St. John’s-Fitzgerald, the money would be placed in an escrow account until St. John’s-Fitzgerald had exhausted all attempts to recover any amount from Sterling-Breon. If St. John’s-Fitzgerald received a judgment against Sterling-Breon, the escrow account would be applied to the obligation.

St. John’s-Fitzgerald filed objections to the settlement. However, on May 27, 1987, the trial court found the settlement was in good faith. St. John’s-Fitzgerald filed a notice of appeal from the good-faith finding and dismissal of plaintiff’s action against Sterling-Breon. This court dismissed St. John’s-Fitzgerald’s appeal as not based upon a final order. On July 8, 1987, this court dismissed Sterling-Breon’s original appeal. On July 13, 1987, the trial court dismissed Sterling-Breon from plaintiff’s action and vacated the judgment against them. The trial court entered the following order:

“The Court having been advised by counsel for plaintiffs and for defendants Breon-Laboratories Inc. and Sterling Drug Inc. that this action has been settled as between the aforesaid parties, and this Court having reviewed the terms and condition of the Release and Settlement Agreement and the stipulation of dismissal;
It is, therefore, ordered that the within action be and the same hereby is dismissed as against defendants Breon Laboratories Inc., Sterling Drug Inc. and other divisions, subsidiaries and affiliates thereof with prejudice and on the merits and the judgment entered in this action against Breon Laboratories and Sterling Drug Inc. be and the same hereby is vacated.”

Plaintiff stipulated to the dismissal of Sterling-Breon from the lawsuit and the vacation of the judgment against them. They stated:

“It is hereby stipulated and agreed by and between the undersigned counsel for Breon Laboratories Inc. and Sterling Drug Inc., and for Jane Henry, individually and on behalf of Erica Henry, that Breon Laboratories Inc. and Sterling Drug Inc. and all other divisions, subsidiaries and affiliates thereof are hereby dismissed from the above-captioned lawsuit with prejudice and on the merits. It is further hereby stipulated and agreed that the judgment against Sterling Drug Inc. and Breon Laboratories Inc. shall be vacated by order of the Court in the form annexed hereto.”

In Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 512 N.E.2d 1044, this court affirmed the jury’s findings as to St. John’s-Fitzgerald.

On March 11, 1988, plaintiff filed a citation to discover St. John’s Hospital’s assets. On April 4, 1988, St. John’s-Fitzgerald tendered a check for $715,559.09 to plaintiff. This represented the 7% amount plus interest to that date. On May 6, 1988, St. John’s-Fitzgerald filed a petition for entry of judgment on the jury verdict. Plaintiff objected.

After a hearing, on July 8, 1988, the trial court denied St. John’s-Fitzgerald’s motion, and found they were jointly and severally liable for the verdict as of January 21, 1986. The court stated interest accrued as of that date. The court further found that after the settlement, the amount of recovery was reduced by $3,350,000. St. John’s-Fitzgerald was liable to plaintiff for $5,511,759 plus interest accrued to May 29, 1988 ($1,528,743), and accruing thereafter at a rate of $1,359 per day. The court stated the amount given to Jane Henry for settlement of her individual claim was not a setoff against the amount of the judgment due on plaintiff’s claim.

In the instant case, St. John’s-Fitzgerald initially argues the imposition of the balance of the compensatory damage award against it is contrary to the jury verdict, contrary to the language of this court, contrary to the equitable principles behind the Contribution Act, and in effect, allows plaintiff to change the jury’s assessment of relative degrees of fault. St. John’s-Fitzgerald next argues that the settlement, if it allows for a post-judgment shifting of responsibilities, is not in good faith.

Plaintiff contends St. John’s-Fitzgerald is, in essence, contesting joint and several liability, which has been upheld in courts in Illinois. Plaintiff argues St. John’s-Fitzgerald’s remedy should have been a timely contribution claim against Sterling-Breon. Secondly, plaintiff contends St. John’s-Fitzgerald cannot contest good faith at this time.

Section 2(a) of the Contribution Act provides that where two or more persons are subject to liability in tort to the same person arising out of the same injury, there is a right of contribution among them. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) Section 2(b) of the Contribution Act states contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability. The tortfeasor’s total recovery is limited by the amount he pays in excess of his share. Ill. Rev. Stat. 1987, ch. 70, par. 302(b).

Section 2(c) of the Contribution Act states:

“When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Ill. Rev. Stat. 1987, ch. 70, par. 302(c).)

The Contribution Act further provides that a tortfeasor who settles pursuant to section 2(c) is discharged from all liability for contribution and precluded from seeking contribution from a nonsettling tort-feasor. (111. Rev. Stat. 1987, ch. 70, pars. 302(d), (e).) Section 4 of the Contribution Act states:

“Rights of Plaintiff Unaffected. A plaintiff’s right to recover the full amount of his judgment from any one or more defendants subject to liability in tort for the same injury to person or property, or for wrongful death, is not affected by the provisions of this Act.” Ill. Rev. Stat. 1987, ch. 70 par. 304.

The function of the court in construing statutes is to ascertain and give effect to the intention of the legislature in enacting the statute. (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 266, 472 N.E.2d 431, 432.) In ascertaining intent, the court will look at the entire statute. It will not interpret the statute in a fashion which would render portions of it void. The court presumes the General Assembly did not intend absurdity, injustice, or inconvenience. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.) The language of a statute will be given its ordinary meaning.

The Contribution Act has two major purposes. It encourages settlements and it provides for contribution among joint tortfeasors. (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) The Contribution Act codifies and expands principles first stated in Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 13, 374 N.E.2d 437, 442. The Skinner court stated that it saw no valid reason for the continuation of a rule prohibiting contribution among joint tortfeasors. It noted with approval statements by Dean Prosser in which he stated there was an obvious lack of justice in a rule which permits the entire burden of a loss to be shouldered by one tortfeasor based upon plaintiff’s whim, spite, or collusion or a successful levy of execution. Skinner, 70 Ill. 2d at 13, 374 N.E.2d at 442, citing W. Prosser, Torts §50, at 307 (4th ed. 1971).

The purpose of the Contribution Act in eliminating inequity between joint tortfeasors is further established by the legislative history of the Act. Senator Berman in discussing the statute noted its purpose was to bring equity to an otherwise inequitable situation. It allowed everyone to participate according to their fault in any accident. (81st 111. Gen. Assem., Senate Proceedings, May 14, 1979, at 175-76 (statements of Senator Berman) (Senate Bill 308).) Representative Daniels stated the bill allowed for contribution of monetary damages by people that are responsible for a negligent action. Those people would normally be joined in the lawsuit; however, Daniels noted that under the current law when a judgment was rendered it was rendered against all of them and not spread out in exact and precise amounts. Daniels stated:

“What this Bill does is allow for the contribution between responsible parties as to varying degrees of the judgment action or how much they may owe. It’s a codification of the Skinner versus Reed decision out of the Illinois Supreme Court, and it adds other provisions which we think will make it more beneficial for current law.” 81st 111. Gen. Assem., House Proceedings, June 14, 1979, at 18 (statements of Representative Daniels) (Senate Bill 308).

At common law, all joint tortfeasors were jointly and severally liable for the whole of plaintiff’s damages. Plaintiff could elect who he would recover from. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) A release of one joint tortfeasor at common law released all joint tortfeasors. (See generally Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 434 N.E.2d 365.) The rationale behind the rule was that only one recovery could be had for a single injury. See Clear-Vu, 105 Ill. App. 3d 671, 434 N.E.2d 365, citing Manthei v. Heimerdinger (1947), 332 Ill. App. 335, 75 N.E.2d 132.

In Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 200-01, 461 N.E.2d 361, 363-64, the court stated that one of the purposes behind the Contribution Act was to eliminate the rule that the release of one joint tortfeasor released all. The court noted that it believed the legislature intended that a release pursuant to section 2(c) of the Contribution Act would not discharge joint tortfeasors from liability to the plaintiff unless they were specifically named in the release. Implicit in the Alsup court’s analysis of section 2(c) of the Contribution Act is that a plaintiff’s settlement affects his rights to recover damages from the nonsettling tortfeasors.

The Contribution Act also distributes the loss among the joint tortfeasors for plaintiff’s injury. As a predicate to application of the Contribution Act, the defendants must be jointly liable to the plaintiff for the same injury. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) The Contribution Act states that the plaintiff’s right to recover the full amount of his judgment from any one or more of the defendants subject to liability in tort is not affected by the Act. 111. Rev. Stat. 1987, ch. 70, par. 304.

In Coney, the court held that the doctrine of joint and several liability for a plaintiff’s injury was not eliminated by the adoption of comparative negligence. The court noted the language of section 4 of the Contribution Act and the language of section 3 of the Contribution Act as support for its view that the legislature intended to retain joint and several liability. Joint and several liability for many injuries has been eliminated by statute in Illinois. (111. Rev. Stat. 1987, ch. 110, par. 2 — 1117.) The effect of this statutory change on the Contribution Act has not been litigated. The statutory changes, however, occurred after accrual of the instant case and, therefore, would not be relevant to this appeal.

We have found no Illinois cases addressing post-judgment settlements pursuant to the Contribution Act. In the instant case, plaintiff settled her compensatory damages claim against Sterling-Breon after judgment. The value of the compensatory damages claim against Sterling Breon was 93% of the $8,511,497 award at the time of the settlement. Additionally, a punitive damages award was vacated. Since the release provided that the entire liability of Sterling-Breon was extinguished and referenced a specific cause number in which liability was fixed by judgment, plaintiff’s recovery should be reduced by the full proportional liability of Sterling-Breon.

“Amount” is defined as “[t]he whole effect, substance, import, result, or significance. The sum of principal and interest.” (Black’s Law Dictionary 76 (5th ed. 1979).) It is logical that an amount can be stated numerically or by the use of terms such as “all liability,” “entire claim,” “all claim,” and “partial liability.” A “claim” is defined as a cause of action, demand for money, payment, or right to payment, whether or not liquidated or reduced to judgment. Black’s Law Dictionary 224 (5th ed. 1979).

We agree that the comparative negligence concepts and the Contribution Act do not affect a plaintiff’s “right” to hold defendants jointly and severally liable for his injuries. However, after a plaintiff has reduced liability to judgment by jury verdict to an amount certain and elects to settle with a tortfeasor who is financially capable of satisfying the entire judgment, he waives his right to enforce that portion of the judgment against the nonsettling tortfeasor.

Interpreting the release in the instant case to reduce the plaintiff’s recovery by the damages already assessed against Sterling-Breon in the trial action comports with the purpose of the Contribution Act. The dollar amount of the released claim is established here and the release specifically includes a release of any claim under the cause of action establishing the judgment amount. If the amount of the claim were not readily determinable, as in a prejudgment settlement, the dollar amount stated in the release would control.

In Coney, the court held comparative negligence did not require abandonment of joint and several liability, especially where a nonnegligent plaintiff is involved. The court noted protection of plaintiffs as a primary reason for retaining the doctrine after abrogation of the doctrine of contributory negligence. It stated one indivisible injury was involved, and as between an innocent plaintiff and a negligent but insolvent joint tortfeasor, abandonment of joint and several liability would force plaintiff to bear the loss. The court was concerned that elimination of joint and several liability would seriously impair and injure plaintiffs ability to recover adequate compensation for his injuries. (Coney, 97 Ill. 2d at 121-22, 454 N.E.2d at 205.) The effect of Coney, has been partially overruled by section 2 — 1118 of the Illinois Code of Civil Procedure, which provides for joint and several liability in cases where a defendant’s negligence is 25% or less than that assessed to the other parties including the plaintiff. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1118.

Section 4 of the Contribution Act specifically states a plaintiff’s “rights” to recover the full amount of his judgment from one or more of the defendants is not affected by the provisions of the Contribution Act. (Ill. Rev. Stat. 1987, ch. 70, par. 304.) Several States retain joint and several liability, some have legislatively restructured or eliminated it, and some have judicially eliminated the doctrine. See Walt Disney World Co. v. Wood (Fla. 1987), 515 So. 2d 198, for a discussion of the treatment of joint and several liability by the various States.

Few States have addressed a situation similar to that presented in the instant case. Among those that have, however, one State has held that apportionment of judgment applies to limit the judgment when there is an active assertion of a claim against a joint tortfeasor. (Prudential Life Insurance Co. v. Moody (Ky. 1985), 696 S.W.2d 503.) In Bartels v. City of Williston (N.D. 1979), 276 N.W.2d 113, the court held that Bartels, who settled with a joint tortfeasor and released him, waived his right to hold the remaining defendants jointly and severally liable for the entire amount of the award. The Bartels court analyzed the laws of Wisconsin and Minnesota in construing the effect of a release of liability. It held that the judgment award should be reduced by the proportionate liability of the person who settled.

A waiver occurs when a party intentionally relinquishes a known right, either expressly or by conduct inconsistent with an intent to enforce the right. (Sexton v. Smith (1986), 112 Ill. 2d 187, 492 N.E.2d 1284; Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991, 994; Harris v. Faultfinders, Inc. (1981), 103 Ill. App. 3d 785, 431 N.E.2d 1205.) Waiver is an equitable doctrine invoked to further the interests of justice whenever a party initially relinquishes a known right. Mollihan v. Stephany (1977), 52 Ill. App. 3d 1034, 368 N.E.2d 465.

Here, the judgment as to Sterling-Breon was vacated by the court pursuant to the stipulation of plaintiff and Sterling-Breon. By entering the settlement and release, plaintiff gave up her known right to enforce that part of the verdict attributable to Sterling-Breon against the nonsettling defendants.

In Bartels, the court found that joint and several liability as stated in its statute existed to benefit the injured party and could be waived. Bartels gave a general release to a joint tortfeasor, which released the tortfeasor from any contribution action. The Bartels court stated:

“We also conclude that the following language in §9 — 10—07, NDCC, ‘provided, however, that each shall remain jointly and severally liable for the whole award’ is for the benefit of the injured party and can be waived.
The general release given to Hackney constituted a general release for all of his liabilities present and future, including contributions either specifically or by construction, and as a settling tort-feasor he is excluded as a party from any further action against any of the remaining nonsettling tort-feasors. Bartels’ (plaintiff’s) recovery from the nonsettling tort-feasors is limited to the percentage of negligence attributable to the remaining nonsettling tort-feasors as may be determined by the court or the jury, as the case may be.
In this instance, John Bartels, the plaintiff, through the release, waived the following underscored language of §9 — 10— 07, NDCC:
‘When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of the negligence attributable to each; provided, however, that each shall remain jointly and severally liable for the whole award.’ ” (Emphasis added by Bartels court.) (Bartels, 276 N.W.2d at 122.)

Section 4 of the Contribution Act provides for the retention of joint and several liability, which is a right benefitting the plaintiff. We find the right to jointly and severally enforce judgment under the Contribution Act is waived by a plaintiff who acts to cause vacatur of a judgment as to a primarily liable joint tortfeasor pursuant to a settlement.

St. John’s-Fitzgerald next argues that principles of judicial estoppel should apply in the instant case to preclude plaintiff from assuming a different position than she held in the trial court. The doctrine of judicial estoppel states that when a party assumes one position in a legal proceeding, that party is estopped from assuming a contrary position in a subsequent legal proceeding. (Department of Transportation v. Coe (1983), 112 Ill. App. 3d 506, 509-10, 445 N.E.2d 506, 507-08.) This doctrine is inapplicable in the instant case, which involves supplemental proceedings.

St. John’s-Fitzgerald next argues the trial court erred in assessing post-judgment interest. In light of our finding that the release reduced plaintiff’s recovery by the amount of the compensatory damages award recoverable against Sterling-Breon, we agree. We need not address St. John’s-Fitzgerald’s contentions. We note, however, that the record does not support St. John’s-Fitzgerald’s argument concerning setoff. Jane Henry filed a separate lawsuit against St. John’s-Fitzgerald and Sterling-Breon. The appeal of the dismissal of that suit was pending at the time of the settlement, which clearly delineated the two lawsuits involved. Jane Henry’s settlement was distinct from plaintiff’s settlement. No setoff would, thus, be available in plaintiff’s action.

For the above reasons, we reverse and remand.

Reversed and remanded.

SPITZ, J., concurs.

JUSTICE GREEN,

dissenting:

I agree with the majority in their well-expressed statement of the purposes of the Contribution Act (111. Rev. Stat. 1987, ch. 70, par. 302(a)). I also share their concern which arises because the judgment on appeal is not consistent with the purposes of the Contribution Act. However, I must dissent from decision of the majority because in attempting to be fair to St. John’s-Fitzgerald and consistent with the purposes of the Contribution Act, the decision (1) is unfair to plaintiff; (2) violates the express terms of the Contribution Act; and (3) is contrary to precedent binding upon us.

The majority treat the act of plaintiff in settling with Sterling-Breon after judgment and pending appeal as a waiver of any liability owed by St. John’s-Fitzgerald beyond 7% of the amount of the joint and several judgment entered on the jury verdict for compensatory damages as modified by the circuit court. The majority correctly points out that section 2(c) of the Contribution Act states that “[wjhen a release *** is given in good faith to one [joint tortfeasor], it does not discharge any of the other tortfeasors” unless so stated but reduces recovery against others by the amount paid. (111. Rev. Stat. 1987, ch. 70, par. 302(c).) The majority does not maintain the settlement was not in good faith nor does the majority take the position that the settlement fully released St. John’s-Fitzgerald, as would have been the case prior to the Contribution Act, and might well be the case if the settlement was not in good faith.

Rather, the majority relies on the cases of Bartels v. City of Wil-liston (N.D. 1979), 276 N.W.2d 113, and Prudential Life Insurance Co. v. Moody (Ky. 1985), 696 S.W.2d 503, in support of their theory. The Bartels court construed a statute concerning contribution, very similar to ours, in the context of a statute on comparative negligence which provided in tort cases for the jury to render separate verdicts as to each defendant, fixing damages in proportion to the fault of that defendant, but also stated the liability of the defendants was joint and several. The court concluded that based upon the construction given to the comparative negligence statute by the State from which it was adopted, in cases where one of the tortfeasors has settled with the plaintiff, the amount of judgment eventually awarded is reduced, not by the amount of the settlement but by the percentage of fault found by the trier of fact to be attributable to the settling tortfeasor. That rule was held to prevail over a provision in the legislation regarding compensation which stated, as does section 2(c) of the Contribution Act, that the judgment is reduced by the amount obtained from the release. Prudential concerned the operation of a comparative negligence statute which limited joint liability of joint tortfeasors to that for costs.

Subject to the provisions of sections 2 — 1116, 2 — 1117, and 2— 1118 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2— 1116, 2 — 1117, 2 — 1118), which were not in force at times pertinent here and would not be applicable to these facts, the statutory format in Illinois is to spread fault in most tort cases, proportionately among tortfeasors indirectly through third-party action and cross-complaints under the Contribution Act rather than through directly apportioning the liability of each tortfeasor to the injured party. All tortfeasors remain jointly and severally liable to the injured party. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) There is no statutory provision or common law rule similar to that in Bartels whereby the proportion of liability of each defendant to the plaintiff is directly determined.

The Contribution Act, indirectly, achieves ultimate proportionate responsibility unless a joint tortfeasor is insolvent. The post-judgment settlement pending appeal is not what destroyed proportionality here. The majority does not dispute that plaintiff could have sought satisfaction of its entire judgment for compensatory damages from St. John’s-Fitzgerald and the latter could not have prevented them from doing so nor could St. John’s-Fitzgerald have obtained any contribution from Sterling-Breon. Proportionate ultimate financial responsibility was defeated here because, unfortunately, St. John’s-Fitzgerald failed to file a timely claim for contribution. In late 1984, the supreme court held in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, that if a tort action is brought, alleged tortfeasors seeking contribution from others must join their claims for contribution in the tort action. This was not always done previously. In the short time span involved here, filing a claim for contribution was overlooked by St. John’s-Fitzgerald until after the evidence had been presented in the trial on the merits and the circuit court ruled the request was untimely and denied it. Had St. John’s-Fitzgerald timely made such a claim, it could have required Sterling-Breon to reimburse it to the extent St. John’s-Fitzgerald had paid plaintiff more than St. John’s-Fitzgerald’s proportionate share of the joint and several judgment.

St. John’s-Fitzgerald rightfully calls our attention to the confusion and ambiguity in the record here. The form of the verdict could be taken to indicate that separate judgments in separate amounts were being entered as to the several defendants. In our opinion, modified upon denial of petition for rehearing in the underlying case, we concluded with the following statement:

“Therefore, we affirm the jury verdict less the court-ordered remittitur as to medical expenses and affirm St. John’s-Fitzgerald’s responsibility for 7% thereof.” (Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 735, 512 N.E.2d 1044, 1050.)

This also could be taken to indicate we affirmed the judgment against St. John’s-Fitzgerald only to the extent of 7% of the amount of the compensatory damages. However, despite the foregoing, in view of the undisputed continued existence of the rule of joint and several liability as applied to the situation here, where there was no contention of negligence attributable to plaintiff, the foregoing can only be construed to consist of the award of a joint and several judgment for the compensatory damages as modified and an affirmance of the same. Sterling-Breon had filed cross-complaints against St. John’s-Fitzgerald for contribution, and the fixing of degrees of fault among the various defendants can be attributed to those claims.

In summary, I conclude: (1) under common law precedent, the liability of all defendants to plaintiff was joint and several and she could look to any one of them for satisfaction of the judgment rendered; (2) under section 2(c) of the Contribution Act, any good-faith settlement with one or more of the defendants reduces the liability of other defendants to her only in the amount of the settlement; (3) neither statute nor case law precedent changes the operation of the foregoing principles because the settlement was made pending appeal from an existing judgment; and (4) any fairness to St. John’s-Fitzgerald, awarded them by the majority because of their unfortunate predicament, results in corresponding unfairness to plaintiff, who was entitled to rely on existing law in settling with Sterling-Breon. Accordingly, I would affirm the judgment of the circuit court.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE W. MATTINGLY, Defendant-Appellant.
    Fourth District
    No. 4—88—0379
    Opinion filed March 23, 1989.
    Rehearing denied April 14, 1989.

      Daniel D. Yuhas and Gloria A. Carroll, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On March 29, 1988, defendant George W. Mattingly was tried in absentia before a jury in the circuit court of Macon County and was convicted of committing the offense of forgery, in violation of section 17 — 3 of the Criminal Code of 1961 (111. Rev. Stat. 1987, ch. 38, par. 17 — 3). He was sentenced in absentia to four years’ imprisonment. Defendant now appeals, alleging the jury was misinstructed as to the elements of the offense and he was improperly sentenced. We affirm.

The evidence at trial established defendant resided with Jeff Montgomery for two weeks in September 1986. On October 10, Montgomery discovered a book of checks missing. He went to his bank and discovered one of the checks had been presented and cashed. The check was made payable to George Mattingly in the amount of $500 and was signed Jeff Montgomery. Montgomery did not sign the check.

On July 21, 1987, defendant was interviewed and denied any knowledge of the check. At that time, defendant gave handwriting samples. An expert testified that the writer of the samples was the one who endorsed the check.

On January 10, 1988, defendant was reinterviewed and advised of the expert’s opinion. Defendant stated a black man known as Bubba gave him the check already filled out. Another man known as Cheta drove him to the bank where defendant endorsed and cashed the check. Defendant received $50 for his efforts. He also knew Bubba was not Jeff Montgomery.

The State tendered two issues instructions on forgery, alleging in one that defendant made the check, and in the other that defendant delivered the check. It also tendered two sets of verdict forms. These were given over defendant’s objection to the multiple instructions. Defendant was found guilty of having delivered the check and not guilty of having made it.

Defendant first argues that the jury was misinstructed concerning the elements of the offense of forgery. He believes this error denied him a fair trial and requires reversal.

The instruction in question read:

“To sustain the charge of forgery, the State must prove the following proposition:
FIRST: That the defendant knowingly issued or delivered a check which he knew had been made or altered so that it appeared to have been made by another or by authority of one who did not give such authority.
SECOND: That the defendant did so with intent to defraud South Shores National Bank of Decatur.”

This instruction complies with the Illinois Pattern Jury Instructions, Criminal, No. 13.26 (2d ed. 1981). The statutory definition of forgery also includes a requirement that the document be “apparently capable of defrauding another.” (111. Rev. Stat. 1987, ch. 38, par. 17 — 3(a)(1).) The committee notes to that instruction indicate the issue of whether a document is apparently capable of defrauding is a question of law, and the jury need not be instructed on this.

However, it is now settled that this issue is an element of the offense. (People v. Hockaday (1982), 93 Ill. 2d 279, 282, 443 N.E.2d 566, 567; People v. Tarkowski (1982), 106 Ill. App. 3d 597, 601, 435 N.E.2d 1339, 1343.) It is similarly accepted that it is not a question of law but is a question for the fact finder. (People v. Kent (1976), 40 Ill. App. 3d 256, 261, 350 N.E.2d 890, 894; Tarkowski, 106 Ill. App. 3d at 601-02, 435 N.E.2d at 1343.) In fact, in 1987, the pattern instructions were amended to include this language. (See Illinois Pattern Jury Instructions, Criminal, No. 13.26 (2d ed. Supp. 1987).) Thus, it is evident the given instruction was erroneous.

The State observes that defendant’s sole objection to the instructions was to the tendering of two definitional instructions and two sets of verdicts, and was not addressed to the error raised here. Accordingly, the State maintains that any allegation of such error is waived.

It is settled that failure to object at trial to an asserted error in jury instructions waives the issue. (People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742, 743; People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251; People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 337.) It is also established that a party may not raise, on appeal, the failure to give an instruction unless he tendered it at trial. (Huckstead, 91 Ill. 2d at 543, 440 N.E.2d at 1251; People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027, 1029.) Additionally, objections not raised in a post-trial motion are deemed waived for appellate review. Berry, 99 Ill. 2d at 503, 460 N.E.2d at 744; Huckstead, 91 Ill. 2d at 543, 440 N.E.2d at 1251.

However, the waiver rule is not absolute. Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c)) sets forth a limited exception which allows the review of substantial defects in instructions if the interests of justice require. (See also Berry, 99 Ill. 2d at 503-04, 460 N.E.2d at 744; Huckstead, 91 Ill. 2d at 544, 440 N.E.2d at 1251.) This exception will be invoked to correct grave errors or in cases so close factually that fundamental fairness requires that the jury be properly instructed. Huckstead, 91 Ill. 2d at 544, 440 N.E.2d at 1252; Tannenbaum, 82 Ill. 2d at 182, 415 N.E.2d at 1030.

Defendant maintains our supreme court has determined that any case involving an error in instructions on the elements of the offense is such that it arises to plain error and defeats application of the waiver rule. He relies on language in the recent case of People v. Reddick (1988), 123 Ill. 2d 184, 198, 526 N.E.2d 141, 147, where the court stated:

“We have previously held that certain instructions, such as the burden of proof and elements of the offense, are essential to a fair trial and that the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the People’s burden of proof. (People v. Berry (1984), 99 Ill. 2d 499; People v. Roberts (1979), 75 Ill. 2d 1, 13; People v. Jenkins (1977), 69 Ill. 2d 61.)”

However, our review of the cases cited in Reddick, as well as others, establishes that defendant is reading the above language too expansively in asserting a per se rule for avoiding application of the waiver rule has evolved. This review establishes that the most important phrase in the above-quoted language is “viewing the record as a whole,” and that the determination of plain error is still made on a case-by-case basis.

In People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532, the jury had been given two sets of issues instructions which had conflicting provisions. The court determined that this conflict left the jury in such a quandary as to which law to follow that it necessitated a finding of grave error defeating application of the waiver rule.

Shortly thereafter, in Roberts, the court applied the waiver rule when the jury had been misinstructed on the definition of murder as considered in the context of the offense of attempt (murder). The court gave a long analysis of the rule of waiver and the plain error exception. The court noted the exception has a very limited application. It concluded that in that case there was no grave error nor was the case factually close.

In 1980, the court in Tannenbaum again applied the waiver rule without exception. There, the jury was not instructed to find if the value of the stolen merchandise exceeded the felony amount. The court failed to find the existence of the plain error exception to the waiver rule, observing that “the evidence here is overwhelming and uncontradicted in each case that the value of the stolen property greatly exceeded $150.” Tannenbaum, 82 Ill. 2d at 182, 415 N.E.2d at 1030.

In People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, the court did apply the plain error exception. There, the jury instructions in the deceptive practices case failed to include the element of acting with an intent to defraud. The court observed that this case was consistent with Tannenbaum and, in explaining the different conclusions, stated:

“There [Tannenbaum], the jury was given all instructions essential to determine the defendants’ guilt or innocence of theft; the lack of an instruction on the element of the value of the property stolen did not affect that determination. Further, in Tannenbaum there, was no dispute as to the value of the property. Here the omission removed from the jury’s consideration a disputed issue essential to the determination of defendant’s guilt or innocence.” Ogunsola, 87 Ill. 2d at 223, 429 N.E.2d at 865.

In Huckstead, the jury was not instructed that the State had the burden of proving beyond a reasonable doubt that the defendant was not justified in using force. The court concluded the error was waived, and neither branch of the plain error exception applied. It acknowledged the reversals in Jenkins and Ogunsola, but explained those decisions were due to the facts of those cases. The court referred back to Roberts, where, “this court, stressing the restrictive nature of the exception to the waiver rule created by Rule 451(c), stated that the ‘grave error’ and ‘closely balanced evidence’ tests create a limited exception that is ‘applicable only to serious errors which severely threaten the fundamental fairness of the defendant’s trial.’ ” Huckstead, 91 Ill. 2d at 547, 440 N.E.2d at 1253.

Finally, in Berry, the court addressed a case involving the same error as that in Huckstead. The court again noted the limited application of the exceptions to the waiver rule, stating:

“This court strives to apply the waiver rules narrowly and consistently in conformity with the posture of the United States Supreme Court (see generally Henderson v. Kibbe (1977), 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736, where the Court stated: ‘It is the rare case in which an improper instruction will justify reversal of a criminal conviction where no objection has been made in the trial court’) ***.” (Berry, 99 Ill. 2d at 506, 460 N.E.2d at 745.)

However, under the facts of this particular case, the court determined that the plain error exception should apply because the case was close factually, and the error was grave.

In Reddick, the jury had been misinstructed on the burden of proof concerning mitigating mental conditions. The court concluded grave error occurred, and the plain error exception to the waiver rule applied. However, the court did not change any of the analysis on this question and, as noted, cited Berry, Roberts, and Jenkins favorably.

Thus, it is evident the analysis of the question of plain error has not changed. It is still a limited exception available only when a critical error has severely threatened the fundamental fairness of the defendant’s trial. Berry, 99 Ill. 2d at 507, 460 N.E.2d at 745; Huckstead, 91 Ill. 2d at 547, 440 N.E.2d at 1253; Roberts, 75 Ill. 2d at 15, 387 N.E.2d at 337-38.

Applying this analysis to the present case clearly establishes that the plain error exception does not apply. First, the evidence was not closely balanced. Second, the question of whether the check was apparently capable of defrauding another was not “a disputed issue essential to the determination of defendant’s guilt or innocence.” Thus, Tannenbaum seems analogous, and the error is not grave. Further, the document in question was a preprinted bank check. It is readily apparent this is capable of defrauding another. It is inconceivable that the failure to instruct on this element is an error that has severely threatened the fundamental fairness of the defendant’s trial.

Defendant next contends the court considered improper factors in imposing sentence which mandates that a new sentencing hearing be held. In sentencing the defendant, the court stated:

“Getting to the findings on which to base the sentence, we first consider probation. In this case several reasons would rule it out. Number [one], it would be impossible to place a person [on] probation who couldn’t comply with the first term of reporting, he is a fugitive.
So, we start out with probation not working, ruled out. Number one, it would be impossible to place a person on probation who couldn’t comply with the first terms of reporting. Ruled out. Secondly, we wouldn’t put him on probation, he is wanted in another state at the present time on a serious offense, and any time, I assume, they could come here, come in and try to obtain jurisdiction of his person. He has a burglary charge pending in North Carolina. Third there is no foundation for probation, none of the facts and circumstances set forth in the presentence report. He would be a very poor candidate. I don’t think the minimum is appropriate. I wouldn’t go to the maximum. There are, according to my presentence report, there are three prior theft convictions. I think that he has been unemployed. Other information is unavailable because he is a fugitive. I am going to sentence him to the Department of Corrections for a period of four years, as recommended.”

Defendant maintains consideration of his pending burglary charge and his unemployment is inappropriate.

We initially observe defendant did not object when the court considered the improper factors. Neither did the defendant file a post-sentencing motion concerning these points. Recently, in People v. Killings (1986), 150 Ill. App. 3d 900, 909, 501 N.E.2d 1363, 1369, we determined that failure to do so waives any alleged error concerning consideration of improper sentencing factors, a holding which also applies to the present case.

Even if we consider the merits, it is apparent no reversible error exists. Defendant is correct that a mere arrest, standing alone, without further proof of the conduct alleged is impermissible at a sentencing hearing (People v. Thomas (1983), 111 Ill. App. 3d 451, 454, 444 N.E.2d 288, 290), and that the mere fact of unemployment is not a proper factor to consider in aggravation. (People v. Birge (1985), 137 Ill. App. 3d 781, 792, 485 N.E.2d 37, 45.) However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. People v. White (1986), 114 Ill. 2d 61, 67, 499 N.E.2d 467, 469; People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340.

In the present case, it is clear the court did not consider the pending burglary as an aggravating factor, but only mentioned it as a reason for denying probation. It is also clear that the first and foremost reason for denying probation was the defendant’s failure to appear for his trial and sentencing. Similarly, it is evident that the reference to defendant’s unemployment was only made in passing and did not enhance the sentence. Rather, the court relied on defendant’s criminal record and his failure to appear, which the State argued in aggravation.

Since the improper factors had a negligible impact, no reason exists to remand for a new sentencing.

The judgment of the circuit court of Macon County is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.