SIXTH DIVISION May 2, 2008
No. 1-06-3604
FARMERS AUTOMOBILE INSURANCE ) Appeal from the Circuit ASSOCIATION, ) Court of Cook County. ) Plaintiff-Appellant, ) ) v. ) No. 02 CH 14288 ) STEPHEN WROBLEWSKI and GLORIA ) WROBLEWSKI, ) Honorable ) Peter Flynn, Defendants-Appellees. ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff Farmers Automobile Insurance Association (Farmers)
filed a declaratory judgment action against its insureds Stephen
and Gloria Wroblewski (Wroblewski),1 seeking a judgment that
Farmers was not obligated to provide uninsured motorist coverage
to Wroblewski in connection with a traffic accident involving
Wroblewski and Sharon Drolet, who was an uninsured motorist. On
appeal, Farmers challenges (1) the circuit court's finding that
Wroblewski's settlement with Drolet's employer, which expressly
released from liability the employer's "agents" and "employees,"
did not release Wroblewski's claims against Drolet; (2) and the
1 According to defense counsel, Stephen Wroblewski died during the pendency of the underlying action and this appeal is brought solely on behalf of Gloria Wroblewski, who was Stephen's wife. 1-06-3604
court's finding that Wroblewski's settlement with Drolet's
employer for $1.25 million should be offset against Wroblewski's
total damages ($1.85 million). For the reasons that follow, we
reverse the judgment of the circuit court and remand for entry of
judgment in favor of Farmers.
BACKGROUND
A. Wroblewski's Personal Injury Action (Case No. 98 L 3863)
Initially, in order to clarify the parties' respective
arguments on appeal, we briefly recount certain uncontested facts
contained in the parties' respective pleadings regarding a
separate action initiated by Wroblewski in connection with an
1997 automobile accident.
On August 26, 1997, Wroblewski sustained serious physical
injuries after the vehicle that she was driving was involved in a
collision with a vehicle driven by Sherri Drolet, who died from
injuries that she sustained in that collision. Thereafter,
Wroblewski filed a personal injury action (No. 98 L 3863) against
decedent Drolet's estate and Drolet's employer, namely, Walgreen
Company (hereinafter Walgreens2) under the theory of respondeat
superior.
Ultimately, Wroblewski settled her claims against Walgreens
2 Walgreen Company is referred to in the record by Walgreen(s) Company and Walgreen(s). For purposes of clarity, we will refer to that corporate entity as Walgreens.
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for $1.25 million and settled her claims against Drolet's estate
for $10,000.
In regard to the Walgreens settlement, Wroblewski executed a
release of liability against Walgreens in exchange for a payment
of $1.25 million. That release, in relevant part, released
Walgreens and its "agents" and "employees" from any and all
liability arising out of the accident between Wroblewski and
Drolet.
In regard to the settlement with Drolet's estate, Wroblewski
executed a release of claims against Drolet's estate and Drolet's
insurer, namely, Gallant Insurance Company, in exchange for a
payment of $10,000.
In March 2002, as a result of the settlements, the circuit
court dismissed Wroblewski's action against both Walgreens and
Drolet's estate. According to the parties, Walgreens paid
Wroblewski $1.25 million pursuant to the terms of the settlement
with Wroblewski.
However, as represented by the parties, Gallant Insurance
Company (Drolet's insurer) became insolvent at some point
subsequent to the settlement and did not pay Wroblewski $10,000
on behalf of Drolet. Following this failure to pay, Wroblewski
filed a claim with Farmers seeking uninsured motorist coverage.
B. Farmers Files Declaratory Judgment Action
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(Case No. 02 CH 14288)
In August 2002, Farmers filed a complaint seeking a
declaratory judgment that Wroblewski was not entitled to
uninsured motorist coverage, which is the action that forms the
subject of this appeal. Farmers attached to its complaint a copy
of Wroblewski's insurance policy, which provided uninsured
motorist coverage up to $100,000 and defined an uninsured
motorist as a motorist whose insurer "is or becomes insolvent."
In pertinent part, Farmers argued in its complaint that the
limit of liability clause in Wroblewski's policy entitled Farmers
to offset the policy's limit ($100,000) for uninsured motorist
coverage against the proceeds Wroblewski had previously obtained
from her Walgreens settlement ($1.25 million). Farmers also
noted that Wroblewski had signed a release in connection with the
Walgreens settlement, which released Walgreens and "all other
persons, firms, and corporations" from any claims arising from
the vehicle collision with Drolet.
In October 2002, Wroblewski answered Farmers' complaint for
declaratory judgment, arguing that Farmers had wrongfully denied
her claim for uninsured motorist coverage. In regard to the
release in the Walgreens settlement, Wroblewski admitted that she
had executed a release in favor of Walgreens, but denied that
Farmers had accurately detailed the terms and conditions of that
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release.
In December 2002, Farmers filed a motion for judgment on the
pleadings, which the circuit court converted to a motion for
summary judgment.
In April 2003, the circuit court denied Farmers' motion for
summary judgment without prejudice.
In July 2003, Wroblewski filed a motion to dismiss Farmers'
action based on lack of ripeness or, alternatively, for an order
compelling arbitration. In relevant part, Wroblewski noted that
her actual damages had never been adjudicated through trial or
arbitration because her action against decedent Drolet's estate
remained pending.3 In regard to the Walgreens settlement and
release, Wroblewski argued that it was "nonsensical" to hold that
the Walgreens settlement extinguished any liability for uninsured
motorist coverage with respect to Drolet's estate because the
action against Drolet's estate remained pending and Illinois law
did not hold that a settlement with an employer extinguishes the
employee's liability.
In August 2003, Farmers filed a combined response to
Wroblewski's motion to dismiss and a renewed motion for summary
3 On March 10, 2003, in response to a motion by Wroblewski, the circuit court vacated its previous dismissal order as to Drolet's estate and reinstated Wroblewski's personal injury action solely against Drolet's estate (Case No. 48 L 3863).
5 1-06-3604
judgment. In its motion to dismiss, Farmers again noted that
Wroblewski had signed a release in the Walgreens settlement that
had released Walgreens and its "agents" and "employees."
Further, in relevant part, Farmers argued that Wroblewski was not
entitled to uninsured motorist coverage because Wroblewski had
already received $1.25 million from Walgreens "on behalf of
Drolet." According to Farmers, a calculation of Wroblewski's
total damages was unnecessary because Farmers was entitled to
setoff the $100,000 limit for uninsured motorist coverage against
the $1.25 million Wroblewski received from the Walgreens
settlement.
In October 2003, the circuit court (1) denied without
prejudice Wroblewski's motion for dismissal or order compelling
arbitration without prejudice and (2) denied without prejudice
Farmers' motion for summary judgment.
In December 2003, Wroblewski filed a renewed motion to
dismiss for lack of ripeness. In that pleading, Wroblewski
explained that the trial court had previously denied her first
motion to dismiss because it was "unclear" as to whether the
release in the Walgreen settlement also released Drolet's estate
from liability. Wroblewski further explained that the court had
instructed the parties that it would reconsider the issue of the
Walgreens release "in light of the case law presented by the
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parties on the issue of whether extrinsic evidence could be
considered by the court in determining the intent of the parties
in executing the Walgreens [r]elease."
In relevant part, Wroblewski argued that a determination of
the scope of the Walgreens release was controlled by the parties'
intentions and that those intentions should be "discerned from
the release's express language as well as the circumstances
surrounding the agreement," citing this court's decision in
Doctor's Associates, Inc. v. Duree, 319 Ill. App. 3d 1032 (2001).
Wroblewski attached to her pleading an affidavit from
Sheldon Brenner, who was the attorney that represented Wroblewski
in the settlement with Walgreens. Wroblewski also attached an
affidavit from Tom Andrews, who was the attorney that represented
Walgreens in that settlement. In those affidavits, both Brenner
and Andrews attested that the intention of the parties was to
release only Walgreens from any liability and not to release
Drolet's estate. Wroblewski further noted that a separate
settlement was reached with Drolet, which also evidenced an
intention by the parties that the Walgreens settlement did not
release Drolet.
On January 7, 2004, Farmers filed a combined response to
Wroblewski's motion to dismiss and a renewed motion for summary
judgment. In that pleading, Farmers reasserted its claim that
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Wroblewski was not entitled to uninsured motorist coverage
because Wroblewski had already been fully compensated as a result
of the Walgreens settlement. In regard to the Walgreens release,
Farmers maintained that Wroblewski could not rely upon parol
evidence, namely, the affidavits of Brenner and Andrews, because
the Walgreens release was "comprehensive, precise, and
unambiguous." According to Farmers, the Walgreens release
constituted a release by Wroblewski from all claims of liability
against Walgreens and its agents and employees, which is a class
that included Drolet, who was an employee of Walgreens.
On January 12, 2004, Wroblewski responded to Farmers'
renewed motion for summary judgment, repeating her prior
assertion that the controversy was not ripe for adjudication
until her total damages had been calculated and her lawsuit
against Drolet's estate remained pending.
In regard to the impact of the Walgreens release, Wroblewski
maintained that "no Illinois case holds that a settlement with
the employer extinguishes the employee's direct liability."
Wroblewski also noted that she entered into a separate settlement
with Drolet's estate and that her separate action against
Drolet's estate remained pending. Wroblewski further maintained
that the Walgreens release contained "boilerplate language" that
"cannot reasonably be construed to have released [Wroblewski's]
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claims against the Estate of Drolet." Wroblewski argued that the
Walgreens release did not specifically identify Drolet by name,
and that a release which contained language releasing both a
named party "and all other persons" did not operate to release
other tortfeasors who are not specifically identified in the
release, citing Alsup v. Firestone Tire & Rubber Co., 101 Ill. 2d
196, 200-02 (1984).
On January 22, 2004, the circuit court entered an order
referencing Wroblewski's renewed motion to dismiss and Farmers'
cross-motion for summary judgment, but did not enter a ruling on
either motion. Instead, the court (1) found that the Walgreens
release executed by Wroblewski did not release Wroblewski's
claims against Drolet's estate or the uninsured motorist claim
against Farmers "under the circumstances presented"; (2) further
found that an adjudication of Wroblewski's damages through trial
or arbitration was required before the court could determine
whether and to what extent those damages exceed the amount of the
Walgreens settlement and whether uninsured motorist coverage was
available under Wroblewski's Farmers policy; and (3) continued
the case for a determination of whether Wroblewski's damages
should be adjudicated through trial or arbitration, "to be
discussed by the parties."
On January 26, 2004, Farmers filed a motion for a Supreme
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Court Rule 304(a) (210 Ill. 2d R. 304(a)) finding that there was
no just reason to delay an appeal of the court's January 22,
2004, order. Also on January 26, 2004, Farmers filed a motion to
stay further proceedings pursuant to Supreme Court Rule 305(b)
(210 Ill. 2d R. 305(b)).
On January 29, 2004, the circuit court denied Farmers'
motion seeking a Rule 304(a) finding and denied Farmers' motion
seeking a stay pursuant to Rule 305(b). Also in that order, the
court directed Wroblewski to file a motion requesting
arbitration.
On March 3, 2004, the circuit court entered an order
establishing a filing scheduling to permit Farmers to file a
motion for Rule 308 certification for interlocutory appeal (210
Ill. 2d R. 308). In addition, that order also set a status
hearing for the scheduling of arbitration and noted, in relevant
part, that the "parties agree to arbitration."
On March 10, 2004, Farmers filed a motion to certify a
question for interlocutory appeal under Supreme Court Rule 308,
arguing that such review was warranted to determine whether the
release executed in favor of vicariously liable Walgreen also
released Drolet and whether consideration of parol evidence to
determine that issue was permissible.
On March 12, 2004, Wroblewski filed a response to Farmers'
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motion seeking Rule 308 certification, arguing that Farmers'
request should be denied because Farmers did not raise a question
of law and that such certification would delay the resolution of
the controversy. Wroblewski also observed that Farmers had
agreed on March 3, 2004, to submit Wroblewski's damages claim to
On March 24, 2004, the circuit court denied Farmers' motion
seeking Rule 308 certification. Subsequently, as represented by
the parties, Wroblewski and Farmers proceeded to arbitration on
the issue of Wroblewski's total damages in connection with the
accident.
Following arbitration in October 2006, an arbitration panel
found in favor of Wroblewski and assessed damages totaling
$1,850,000. The panel further found that the damages were
subject to all the terms of the uninsured motorist provision of
Wroblewski's insurance policy.
On November 28, 2006, the circuit court entered an order
confirming the arbitration award and entered judgment in favor of
Wroblewski and against Farmers in the amount of $100,000, which
represented the maximum amount of uninsured motorist coverage
available to Wroblewski under her Farmers' insurance policy.
On December 13, 2006, Farmers appealed from the circuit
court's November 28, 2006, order and the court's January 22,
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2004, order.
ANALYSIS
On appeal, Farmers challenges (1) the circuit court's
January 22, 2004, order finding that the Walgreens release, which
released from liability Walgreen's agents and employees, did not
release Wroblewski's claims against Drolet, who was an employee
of Walgreens; and (2) the court's November 28, 2006, order
finding that Wroblewski's $1.25 million settlement should be
offset against Wroblewski's total damages, as opposed to a
complete offset against the $100,000 limit for uninsured motorist
coverage under her Farmers insurance policy.
A. Waiver
As a preliminary matter, we must address Wroblewski's
contention that Farmers has "waived all claims of error in this
appeal." Specifically, Wroblewski asserts that (1) Farmers
cannot obtain review of the circuit court's January 22, 2004,
order because that order was a nonappealable interlocutory order;
(2) Farmers failed to "object" to the entry of the court's
November 28, 2006, order which Wroblewski characterizes as the
"only final and appealable order in this case"; and (3) Farmers
agreed to arbitration and abandoned its motion for summary
judgment by not renewing it or requesting a ruling on it after
the arbitration award was entered in Wroblewski's favor. After
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carefully reviewing the record, we disagree.
First, the law is settled that an appeal from a final
judgment permits review of all preceding nonfinal orders that
produced that final judgment. See, e.g., Pekin Insurance Co. v.
Pulte Home Corp., 344 Ill. App. 3d 64, 67-68 (2003). Here, the
record establishes that the circuit court's nonfinal order on
January 22, 2004, produced the court's final November 28, 2006,
order. Thus, our review on appeal includes both the circuit
court's nonfinal January 22, 2004, and the court's final November
28, 2006, order.
Second, waiver is comprised of a litigant's intentional
relinquishment of a known right and it stems from a consensual
and affirmative act by that litigant. Home Insurance Co. v.
Cincinnati Insurance Co., 213 Ill. 2d 307, 326 (2004). Here, the
record demonstrates that Farmers did not commit any act that can
reasonably be construed as a relinquishment by Farmers of its
argument that Wroblewski was not entitled to uninsured motorist
coverage or that the Walgreens release effectively released
Wroblewski's claims against Drolet. Instead, Farmers
consistently maintained its respective positions before the
circuit court. Notably, before the circuit court, Farmers
unsuccessfully requested a Rule 304(a) finding of the court's
January 22, 2004, order in order to appeal that decision to this
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court and, also unsuccessfully, sought Rule 308 certification to
this court for determination of the issue of whether the
Walgreens release constituted a release of Wroblewski's claims
against Drolet's estate.
Third, to the extent that Wroblewski challenges Farmers
agreement to arbitration and failure to object to the entry of
the circuit court's November 28, 2006, order, our supreme court
has explained that a formal objection is unnecessary "when it is
apparent that objection would be futile." People ex rel. Klaeren
v. Village of Lisle, 202 Ill. 2d 164, 178 (2002). Based on our
review of the record, it is apparent that any objection by
Farmers to arbitration or the entry of the November 28, 2006,
order would have been futile, especially where the circuit court
had essentially rejected all of Farmers' pertinent arguments
prior to arbitration and the entry of the November 28, 2006,
order.
Accordingly, we reject Wroblewski's argument that Farmers
has waived its claims of error in this appeal arising from the
court's orders on January 22, 2004, and November 28, 2006. We
now address the merits of those claims.
B. Walgreens Release
We first address Farmers' challenge to the circuit court's
order on January 22, 2004, which found that the Walgreens
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release, wherein Wroblewski expressly released Walgreen's
"agents" and "employees," did not operate to release Wroblewski's
claims against Drolet, who was an employee of Walgreens.
Specifically, Farmers contends that (1) the Walgreens release was
unambiguous on its face and that consideration of parol evidence
regarding the parties' intentions was impermissible and (2) the
reference in the Walgreens release to Walgreens' "agents" and
"employees" was sufficiently specific to release Drolet from any
liability because Drolet was an employee of Walgreens.
A release is a contract and is therefore governed by
contract law. Farm Credit Bank v. Whitlock, 144 Ill. 2d 440, 447
(1991). We review de novo questions of law involving the
construction or interpretation of a contract. Dowling v. Chicago
Options Associates, Inc., 226 Ill. 2d 277, 285 (2007).
The cardinal rule of contract interpretation is to give
effect to the intent of the parties. Gallagher v. Lenart, 226
Ill. 2d 208, 232 (2007). When determining the intentions of the
parties, a reviewing court should first consider the plain and
ordinary meaning of the contractual language, which is the best
indication of the parties' intentions. Gallagher, 226 Ill. 2d at
233. In addition, it is important to construe a contract as a
whole and view each part in light of the others. Gallagher, 226
Ill. 2d at 233.
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Where the terms of a contractual release are clear and
explicit, a reviewing court must enforce them as written. Fuller
Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605,
614 (2007), citing Rakowski v. Lucente, 104 Ill. 2d 317, 323
(1984). Under the "parol evidence rule," extrinsic evidence is
inadmissible to vary or modify the unambiguous provisions of a
written contract. Evans v. Lima Lima Flight Team, Inc., 373 Ill.
App. 3d 407, 413 (2007).
Our supreme court, in discussing section 2(c) of the Uniform
Contribution Among Tortfeasors Act, has concluded that in order
for a general release to release the liability of joint
tortfeasors who did not bargain for that release, those remaining
tortfeasors must be specifically identified in the release.
Alsup v. Firestone Tire & Rubber Co., 101 Ill. 2d 196, 200-02
(1984), citing Uniform Contribution Among Tortfeasors Act, 12
U.L.A. 57, 59-62 (1975). Subsequently, this court has
interpreted Alsup and found that its requirement of specific
identification can be satisfied by the designation of a class of
persons. Polsky v. BDO Seidman, 293 Ill. App. 3d 414, 422 (1997)
(concluding that the class designation "agents" satisfies Alsup
and releases individuals who belong to that class). See also
Cummings v. Beaton & Associates, Inc., 249 Ill. App. 3d 287, 323
(1992) (concluding that "Alsup permits identification [of joint
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tortfeasors] by means other than actual naming (such as
designation by class of persons)"); Christmas v. Hughes, 187 Ill.
App. 3d 453, 456-57 (1989) (unnamed employee of cab company
properly released under a covenant not to sue the cab company or
"any of its agents, servants, or employees").
In the case sub judice, the release at issue provided, in
pertinent part, as follows:
"Gloria and Stephen Wroblewski *** for
the sole consideration of one million two
hundred and fifty thousand dollars *** hereby
forever release, acquit, discharge, and
covenant to hold harmless Walgreen Co. and
its *** agents, employees *** from any and
all accounts[,] actions, causes of action,
claims, debts, demands, damages, liens,
costs, suits, loss of services, expenses and
compensation, of whatsoever kind of nature,
in law or in equity, arising from, or in any
way growing out of, any and all known and
unknown, foreseen and unforeseen bodily and
personal injuries, damage to property, and
the consequences therefore, resulting or to
result from a certain incident, which
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occurred on or about the 26th day of August,
1997, and which is more specifically
described in the lawsuit *** entitled Gloria
and Stephen Wroblewski v. Victoria Reidl, as
Special Administrator of Sherri Drolet,
Deceased, Individually [sic] Agent or
Employee of Walgreen Co. ***, for which we,
Gloria and Stephen Wroblewski have claimed
the said Walgreen Co. to be legally liable,
which liability is expressly denied."
The terms contained in this release clearly and explicitly
release Walgreens and its "agents" and "employees" from any and
all claims of liability advanced by Wroblewski in connection with
the underlying traffic accident between Wroblewski and Drolet.
Notably, in the context of the facts of this case, the terms
"agents" and "employees" are classes that sufficiently identify
Drolet because she is a member of those classes. See, e.g.,
Polsky, 293 Ill. App. 3d at 422. Furthermore, the language of
the release expressly refers to Drolet by name and identifies her
as an agent or employee of Walgreens in its reference to the
underlying litigation. Specifically, in pertinent part, the
language of the release refers to the August 26, 1997, "incident"
and explains that the incident "is more specifically described in
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the lawsuit *** entitled *** Wroblewski v. Victoria Reidl, as
Special Administrator of Sherri Drolet, Deceased, Individually
[sic] Agent or Employee of Walgreen Co." (Emphasis added.)
After construing the plain and ordinary meaning of these
unambiguous terms as a whole, we conclude that Wroblewski
effectively released any and all of her claims against Drolet by
executing the release with Walgreens and its agents and employees
in exchange for $1.25 million. Consequently, we find that the
circuit court erred when it reached the opposite conclusion.
Wroblewski's reliance on our decision in Doctor's
Associates, Inc. v. Duree, 319 Ill. App. 3d 1032 (2001), does not
alter our conclusion because of the particular factual
circumstances presented in that case. We note that Wroblewski
also relied on Duree as support for her position before the
circuit court.
In particular, in Duree, the plaintiff received an award of
sanctions from a Kansas court against the defendant, who was an
attorney and represented individuals that the plaintiff had sued
in Kansas. Duree, 319 Ill. App. 3d at 1037-39. The plaintiff
then sought and received an order from an Illinois court
enforcing that Kansas award as an Illinois judgment. Duree, 319
Ill. App. 3d at 1039. On appeal from enforcement of the Kansas
award as an Illinois judgment, the defendant argued, inter alia,
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that a release executed by the plaintiff and a third party in an
unrelated matter operated to release the defendant from the
Kansas judgment because that release included the third party's
"attorneys" and the defendant claimed that he was the third
party's attorney in that unrelated matter. Duree, 319 Ill. App.
3d at 1044.
The Duree court rejected the defendant's arguments and noted
that the intention of the parties controlled the scope and effect
of the release and that the parties' intentions could be
discerned from the language of the release and the "circumstances
surrounding the agreement." Duree, 319 Ill. App. 3d at 1045. In
reaching that conclusion, the Duree court found that (1) the
record contained no evidence that the defendant was the attorney
for the third party; (2) the release did not identify the
defendant by name and was limited to the individuals "expressly
set forth"; (3) the language of the agreement clearly and
unambiguously was limited to resolving the matters between the
plaintiff and the third party; (4) and there was nothing in the
record to suggest that the third party was even aware of the
Kansas judgment when it executed the release with the plaintiff.
Duree, 319 Ill. App. 3d at 1044-46.
Here, Drolet is an undisputed employee of Walgreens and is
specifically referred to as such in the language of the Walgreens
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release. However, in Duree, in stark contrast to this case, it
was not clear whether the attorney was the attorney of the third
party and the attorney was not identified by name in the release.
Moreover, again unlike this case, in Duree, this court had to
consider the impact of a foreign judgment. Based on these
distinctions, we conclude that Duree is not dispositive of the
controversy in this case.
Essentially, Wroblewski urges this court to focus on parol
evidence and conclude that the parties did not intend for the
Walgreens release to release her claims against Drolet's estate.
Wroblewski characterizes the language in the release as
"boilerplate," but does not argue that the language is in any way
ambiguous. In fact, Wroblewski fails to respond to Farmers'
contention that the language of the Walgreens release was clear
and unambiguous.
Most significantly, Wroblewski's entire argument regarding
the parties' intentions in the Walgreens release is based on
parol evidence, as opposed to the language of the contract.
Specifically, Wroblewski relies exclusively upon (1) the
affidavits from her attorney and Walgreens' attorney, who both
attested that the parties did not intend the Walgreens release to
release her claims against Drolet; and (2) a separate action
wherein the circuit court reinstated Wroblewski's action against
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Drolet's estate.
However, because we have found that the language of the
Walgreens release is unambiguous and Wroblewski fails to argue
otherwise, we decline to consider the parol evidence upon which
she relies to ascertain the parties' intentions. Evans, 373 Ill.
App. 3d at 413 ("parol evidence rule" bars consideration of
extrinsic evidence to modify the unambiguous provisions of a
written contract). As our supreme court has explained:
"'What the parties to a written contract may
have understood as to the meaning of the
language used is not admissible in evidence.
The intention or understanding the parties,
when there is a written contract in evidence,
must be determined not from what the parties
thought but from the language of the contract
itself. [Citation.]'" Rakowski, 104 Ill. 2d
at 323, quoting Saddler v. National Bank, 403
Ill. 218, 228 (1949).
Thus, where we have found that the contractual terms in the
Walgreens release are unambiguous, we are constrained to the
language contained in that release itself and cannot consider the
parol evidence advanced by Wroblewski.
C. Insurance Coverage under Wroblewski's
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Farmers Insurance Policy
Because we have determined that Wroblewski released her
claims against Drolet by operation of the Walgreens release,
Wroblewski is not entitled to seek uninsured motorist coverage
from Farmers on behalf of Drolet. Therefore, we do not address
the coverage issue because it has been rendered moot by our
interpretation of the Walgreens release. See In re Marriage of
Michaelson, 359 Ill. App. 3d 706, 717 (2005) (generally, a court
will not review moot issues, and an issue is moot if no actual
controversy exists).
Furthermore, in accordance with our finding that the circuit
court erred when it determined that Wroblewski was entitled to
uninsured motorist coverage and submitted that coverage issue to
arbitration, we necessarily conclude that the resulting
arbitration award in Wroblewski's favor must be vacated because
that award constitutes a gross error of law.
As this court has previously determined, while we cannot
vacate an arbitration award based on errors in judgment or
mistakes of fact or law, we have authority to vacate an
arbitration award where, as occurred here, the arbitration award
contains a gross error of law apparent on its face. Galasso v.
KNS Cos., 364 Ill. App. 3d 124, 131 (2006). To vacate an award
based on a gross error of law, a reviewing court must be able to
23 1-06-3604
conclude from the face of the award that the arbitrators were so
mistaken as to the law that, if apprised of the mistake, they
would have ruled differently. TruServ Corp. v. Ernst & Young
LLP, 376 Ill. App. 3d 218, 224-25 (2007). In the case sub
judice, after reviewing the face of the arbitration award, we
conclude that the arbitrators would have ruled differently had
they properly been apprised that Wroblewski was not entitled to
uninsured motorist coverage as a result of the Walgreens
settlement and release.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
circuit court and remand for entry of judgment in favor of
Farmers that is consistent with this opinion.
Reversed and remanded.
JOSEPH GORDON and McNULTY JJ., concur.
.
24 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
TITLE FARMERS AUTOMOBILE INSURANCE ASSOCIATION, of Case Plaintiff-Appellant
v.
STEPHEN WROBLEWSKI and GLORIA WROBLWESKI,
Defendants-Appellees.
Docket No. 1-06-3604
COURT Appellate Court of Illinois First District, Sixth Division
Opinion MAY 2, 2008 Filed
JUSTICES JUSTICE O'MALLEY delivered the opinion of the court: JOSEPH GORDON and McNULTY JJ., concur.
Appeal's Appeal from the Circuit Court of Cook County. Origination The Hon. Peter Flynn, Judge Presiding.
Counsel for For Appellant, Robert Marc Chemers and David S. Osborne, APPELLANT Pretzel & Stouffer, Chartered, Chicago, Illinois.
Counsel for For Appellee, Stephen A. Kolodziej, Scott R. Britton, and APPELLEE Sheldon A. Brenner, Brenner, Ford, Monroe & Scott, Ltd., Chicago, Illinois.