Bilbrey v. Garcia Jr

Opinion

NOTICE 2026 IL App (5th) 250377-U NOTICE Decision filed 06/29/26. The This order was filed under text of this decision may be NO. 5-25-0377 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

SAMANTHA BILBREY and TUESDAY BILBREY, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Macon County. ) v. ) No. 13-L-104 ) GERONIMO GARCIA JR., M.D.; DECATUR ) EMERGENCY MEDICAL SERVICES-II, S.C.; ) DECATUR MEMORIAL HOSPITAL, an Illinois ) Not-for-Profit Corporation; DENNIS HEIM, M.D.; ) and SPRINGFIELD CLINIC HEALTH SERVICES, ) LLC, ) ) Defendants ) ) Honorable (Decatur Memorial Hospital, an Illinois ) Erick F. Hubbard, Not-for-Profit Corporation, Defendant-Appellee). ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE CATES delivered the judgment of the court. Justice McHaney concurred in the judgment. Justice Barberis dissented.

ORDER

¶1 Held: The trial court did not err in entering a summary judgment in favor of the defendant hospital where the plaintiffs’ settlement with the alleged apparent agent of the hospital extinguished the hospital’s vicarious liability for the negligence of its alleged agent. The order granting summary judgment is affirmed.

¶2 The plaintiffs, Samantha Bilbrey and Tuesday Bilbrey, appeal from the trial court’s order

granting summary judgment for Decatur Memorial Hospital (DMH) based on the court’s finding

that the plaintiffs’ settlement with Geronimo Garcia, M.D., the alleged apparent agent of DMH,

1 extinguished any vicarious liability of DMH. The plaintiffs claim that summary judgment was

improper because Illinois law allows a plaintiff to settle with an agent and expressly reserve the

right to seek recovery for the vicarious liability of the principal where the principal’s right to

contribution or indemnity from its agent was time-barred. For the reasons that follow, we affirm.

¶3 I. BACKGROUND

¶4 This is the second time this case has been before us. The facts were set out in detail in our

prior order (Bilbrey v. Garcia, 2023 IL App (5th) 220278-U (July 31, 2023)) and will not be fully

recounted here. An overview of the facts and the procedural history pertinent to the issues raised

in this appeal follows.

¶5 On October 15, 2010, Samantha Bilbrey was taken to the DMH emergency department

after experiencing sudden numbness in her left arm and left leg during basketball practice. She

was evaluated by Dr. Garcia, a physician who worked in the emergency department. Dr. Garcia

ordered a CT scan and blood work. After receiving the reports of these tests, Dr. Garcia told

Samantha and her family that the results of the CT scan and blood work were “fine” and that she

could be released. Samantha was discharged that same evening with instructions to follow up with

a neurologist in four days and to return if her symptoms recurred. Within 36 hours after Samantha

was discharged, she suffered a major stroke which left her with permanent partial paralysis on the

left side of her body.

¶6 In July of 2013, Samantha filed a medical negligence action against Dr. Garcia, DMH,

Dennis Heim, M.D., and Springfield Clinic Health Services, LLC. 1 Samantha subsequently

amended her complaint, adding her mother, Tuesday Bilbrey, as a party plaintiff, and Decatur

1 On December 13, 2016, the trial court dismissed the claims against Dennis Heim, M.D. and Springfield Clinic Health Services, LLC, without prejudice, pursuant to the plaintiffs’ motion. 2 Emergency Medical Services-II, S.C. (DEMS), as a party defendant. Dr. Garcia was a partner in

DEMS at the time he evaluated Samantha. In the second amended complaint, the plaintiffs alleged

that Dr. Garcia was negligent in that, among other things, he failed to include a transient ischemic

attack or stroke as part of his differential diagnosis, and he failed to obtain a prompt neurovascular

evaluation for Samantha while she was in the emergency department. In that complaint, the

plaintiffs also included a count alleging that DEMS was vicariously liable for the negligence of its

agent, Dr. Garcia, and a count alleging that DMH was vicariously liable for the negligence of Dr.

Garcia under a theory of actual or apparent agency.

¶7 On November 30, 2015, DMH filed a motion for summary judgment. DMH claimed that

it was entitled to a judgment as a matter of law because Dr. Garcia was not an agent, apparent

agent, or employee of DMH. On June 27, 2016, the trial court granted summary judgment in favor

of DMH. The plaintiffs filed a motion pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar.

8, 2016), asking the trial court to make an express finding that there was no just reason to delay

enforcement or appeal of the order granting summary judgment. DMH opposed the motion.

Following a hearing, the trial court denied the motion for a 304(a) finding. Thereafter, the court

denied the plaintiffs’ motions to reconsider the order granting summary judgment for DMH and

the order denying the plaintiffs’ 304(a) motion. The plaintiffs and the remaining defendants, Dr.

Garcia and DEMS, continued to prepare for trial.

¶8 On January 5, 2022, the plaintiffs entered into a “Covenant Not to Execute and Stipulated

Judgment” (Covenant) with Dr. Garcia and DEMS. Under the terms of the Covenant, the plaintiffs

and Dr. Garcia and DEMS stipulated and agreed to a judgment in favor of the plaintiff in the

amount of $10 million, asserting that $10 million was a fair and reasonable approximation of the

value of the plaintiffs’ damages. In addition, the plaintiffs agreed to settle their claims against Dr.

3 Garcia and DEMS for the sum of $2 million. This sum represented the cumulative liability policy

limits of Dr. Garcia and DEMS for the occurrence on October 15, 2010. The plaintiffs expressly

reserved all rights of action, claims, demands, and rights of execution against DMH and asserted

that the settlement with Dr. Garcia did not release DMH from any claims brought against it. On

March 29, 2022, the trial court dismissed all claims against Dr. Garcia and DEMS with prejudice

pursuant to the settlement.

¶9 On April 26, 2022, the plaintiffs appealed the order granting summary judgment in favor

of DMH. After reviewing the record, we found that there was a genuine issue of material fact

regarding whether DMH was vicariously liable for the alleged negligence of Dr. Garcia under the

doctrine of apparent agency. We reversed the order granting summary judgment for DMH and

remanded the case for further proceedings. Bilbrey, 2023 IL App (5th) 220278-U, ¶ 54.

¶ 10 Shortly after the case was returned to the trial court, DMH filed a motion for summary

judgment. DMH initially noted that the plaintiffs’ only claim against it was one for vicarious

liability based upon allegations that Dr. Garcia was its apparent agent. DMH argued that when a

plaintiff sues a principal under a theory of vicarious liability, a settlement between the agent and

the plaintiff extinguishes the principal’s liability regardless of whether the plaintiffs expressly

reserved their right to seek recovery from the principal, citing Gilbert v. Sycamore Municipal

Hospital, 156 Ill. 2d 511, 528-29 (1993). DMH concluded that summary judgment was proper

because the only allegations against DMH were based on its vicarious liability for the negligence

of Dr. Garcia as the apparent agent of DMH and the plaintiffs’ settlement with Dr. Garcia

extinguished DMH’s potential vicarious liability for Dr. Garcia’s negligence.

¶ 11 In response, the plaintiffs claimed that the Gilbert rule did not apply in this case. The

plaintiffs asserted that the Gilbert rule was intended to remedy a “Catch 22” situation in which an

4 agent believed that he bought peace with his settlement only to find that the settlement was illusory

because the agent remained liable in indemnity for any judgment against the principal. However,

in a case where a principal has no indemnity rights against its agent, the agent’s settlement is not

illusory and a settlement provision expressly reserving the right to seek recovery from the principal

should be upheld. The plaintiffs claimed that the Gilbert rule did not apply because DMH failed

to file an indemnity claim against Dr. Garcia within the applicable statutes of limitation and repose

and therefore had no right to seek indemnity from Dr. Garcia.

¶ 12 On January 17, 2025, the trial court heard arguments on DMH’s motion for summary

judgment and took the matter under advisement. On February 3, 2025, the trial court granted

summary judgment in favor of DMH. The trial court concluded that the Gilbert case controlled

and that “any settlement” between the agent and the plaintiff must also extinguish the principal’s

vicarious liability. (Emphasis in original.) The plaintiffs filed a motion to reconsider which was

denied. This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the plaintiffs claim that the trial court erred in granting summary judgment for

DMH. They contend that Illinois law permits a plaintiff to settle with an agent and retain the right

to pursue a vicarious liability claim against the principal where the plaintiff expressly reserves that

right in the settlement agreement and where the principal’s right to seek contribution or indemnity

from its agent is time-barred.

¶ 15 Summary judgment is proper when the pleadings, depositions, and admissions on file,

together with any affidavits, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2022). In

determining whether a genuine issue of material fact exists, the pleadings, admissions, and

5 affidavits are construed strictly against the moving party and liberally in favor of the nonmoving

party. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004); Gilbert v. Sycamore Municipal

Hospital, 156 Ill. 2d 511, 518 (1993). A triable issue precluding summary judgment exists when

material facts are disputed or when reasonable persons might draw different conclusions from

undisputed facts. Adams, 211 Ill. 2d at 43. An order granting summary judgment is reviewed

de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

¶ 16 In Gilbert, the Illinois Supreme Court affirmed its prior holding that when a plaintiff brings

a vicarious liability claim against a principal, “ ‘any settlement between the agent and the plaintiff

must also extinguish the principal’s vicarious liability.’ ” Gilbert, 156 Ill. 2d at 528 (quoting

American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d

347, 355 (1992)). The supreme court made it clear that this rule “stands regardless of whether the

plaintiff’s covenant not to sue the agent expressly reserves the plaintiff’s right to seek recovery

from the principal.” Gilbert, 156 Ill. 2d at 528-29. The supreme court found that the rule

encouraged the settlement of disputes because an agent would gain nothing for settling with the

plaintiff unless the covenant not to sue also extinguished the principal’s vicarious liability. See

Gilbert, 156 Ill. 2d at 528 (citing Bristow v. Griffitts Construction Co., 140 Ill. App. 3d 191, 198

(1986)). In affirming this rule, the Gilbert court recognized that the rule created an inconsistency

with the court’s earlier decision in Edgar County Bank & Trust Co. v. Paris Hospital, Inc., 57 Ill.

2d 298 (1974). See Gilbert, 156 Ill. 2d at 527. Under the Edgar County Bank decision, a covenant

not to sue an agent did not bar the plaintiff’s vicarious liability claim against the principal if the

covenant not to sue expressly reserved the plaintiff’s right to seek recovery from the principal. See

Edgar County Bank & Trust Co., 57 Ill. 2d at 302. The Gilbert court concluded that it could not

6 allow the inconsistency to go unreconciled and overturned Edgar County Bank. Gilbert, 156 Ill.

2d at 528-29.

¶ 17 The plaintiffs contend that the Gilbert rule was intended to remedy illusory settlements.

They argue that where, as here, the principal has no indemnity rights, the settlement with the agent

is not illusory and the settlement terms, including the reservation of its claims against the principal,

must be upheld. We do not find that the holding in Gilbert is conditional or limited as suggested

by the plaintiffs. As noted, in Gilbert, the supreme court clarified that the rule that any settlement

between the agent and the plaintiff must also extinguish the principal’s vicarious liability stands

regardless of whether the plaintiff’s covenant not to sue the agent expressly reserves the right to

seek recovery from the principal. Gilbert, 156 Ill. 2d at 528.

¶ 18 Here, it is undisputed that the plaintiffs entered into a settlement agreement with Dr. Garcia

and DEMS. The settling parties agreed that “a fair and reasonable approximation” of the plaintiffs’

damages was $10 million and they stipulated to a judgment in favor of the plaintiffs in that amount.

The plaintiffs also agreed to accept the sum of $2 million to settle with Dr. Garcia and DEMS, and

in exchange, the plaintiff agreed they would not seek to execute or enforce the stipulated judgment

against Dr. Garcia and DEMS. In addition, the plaintiffs expressly reserved their vicarious liability

claim against DMH. In accordance with our supreme court’s decision in Gilbert, we find that the

plaintiffs’ settlement with Dr. Garcia extinguished any possible vicarious liability on the part of

DMH as the alleged principal. The fact that the settlement agreement expressly reserved the

plaintiff’s vicarious liability claim against DMH did not preserve that claim. Gilbert, 156 Ill. 2d at

528.

7 ¶ 19 III. CONCLUSION

¶ 20 Accordingly, the trial court’s order granting summary judgment in favor of DMH is

affirmed.

¶ 21 Affirmed.

¶ 22 JUSTICE BARBERIS, dissenting:

¶ 23 I respectfully dissent. It is my opinion that the Gilbert rule was intended to remedy illusory

settlements and does not apply where, as here, the principal has no indemnity rights against the

agent and, thus, the settlement with the agent is not illusory. Accordingly, it is my view that the

settlement terms, including the reservation of claims against the principal, should be upheld. For

this reason, I would reverse the trial court’s order granting summary judgment and remand the

cause for further proceedings.