Ford Motor Credit Co. v. Manzo

554 N.E.2d 480, 196 Ill. App. 3d 874, 143 Ill. Dec. 545, 1990 Ill. App. LEXIS 493
CourtAppellate Court of Illinois
DecidedApril 6, 1990
Docket1-88-3275
StatusPublished
Cited by3 cases

This text of 554 N.E.2d 480 (Ford Motor Credit Co. v. Manzo) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford Motor Credit Co. v. Manzo, 554 N.E.2d 480, 196 Ill. App. 3d 874, 143 Ill. Dec. 545, 1990 Ill. App. LEXIS 493 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal seeking vacation or reversal with or without remand of certain post-judgment orders entered by the trial judge on March 4, March 8, April 13, May 10, and May 20, 1988, and the orders entered August 19, 1988, and October 6, 1988, by Judge McCormick.

On November 16, 1979, Juan Manzo (Manzo) purchased a new 1980 Ford Super Cab pickup truck from a Ford dealer. The total purchase price was $11,463.05, paid by trade-in of Manzo’s 1979 Ford Bronco and a $1,455 cash down payment with the balance of the price ($9,634.96) financed through Ford Motor Credit Company (Ford), the plaintiff. Part 16 of the contract provides in part that the purchaser “shall not remove the Property from the country of his residence without the written permission of Seller.” Manzo requested permission to take the truck on a visit to see his family in Mexico for Christmas, but permission was denied by Ford. Manzo left the truck in Chicago, in the care of his wife, and on February 13, 1980, the truck was stolen. At the time the truck was stolen, the mileage registered was approximately 400 miles. When the truck was later recovered it had been burned and was determined to be a total loss.

Safeway had issued automobile insurance to Manzo on the Bronco he traded in as part of the purchase price. The policy specified that it would cover any vehicle purchased to replace the vehicle named in the policy. Safeway did not dispute coverage on this vehicle nor that its policy included Ford as an additional insured. Upon proof of the loss, on February 23, 1980, Safeway offered Manzo $6,750 as a cash settlement for the destroyed Ford truck. Manzo refused to accept this amount. The record contains no information about the specifics of these negotiations with Manzo. The record discloses that Safeway then began to negotiate directly with Ford. Ford agreed to accept $6,750 in settlement of its claim on May 28, 1980. The settlement was not completed because Manzo would not agree to the amount offered by Safeway.

Ford filed suit against Manzo on December 11, 1980, alleging he was in default under his purchase contract and against Safeway because it was liable under the insurance contract to pay for the destroyed truck. Manzo filed a counterclaim against Safeway on the grounds that the settlement offered was too low and sought recovery of the price of the truck under the terms of the insurance policy. Manzo filed a counterclaim against Ford, subsequently amended, alleging that Ford had violated his civil rights by refusing permission to take the truck to Mexico and that as a result the truck was stolen and destroyed. The case went to trial on Ford’s complaint, on Manzo’s ninth amended counterclaim filed December 8, 1986, and on the respective responses to these pleadings.

The case was assigned to Judge Lipnick for immediate jury trial on July 20, 1987. At the close of all evidence on July 28, the trial judge directed a verdict in favor of plaintiff Ford against defendant Manzo and instructed the jury to find in favor of Ford and to assess damages in the amount of $9,157.81 plus expenses as provided “in the contract” plus costs and charges expended. The court also entered judgment in favor of Ford as counterdefendant and against Manzo as counterplaintiff on the countercomplaint.

The jury found in favor of plaintiff Ford against defendant Safeway on the complaint assessing damages in the sum of $9,157. The jury found in favor of counterplaintiff Manzo against counterdefendant Safeway on Manzo’s countercomplaint, assessing damages in the sum of $1,350. No appeal is taken from the judgments in favor of Ford in the underlying suit.

The entry of these judgments did not dispose of that part of Manzo’s cross-complaint against Safeway for prejudgment interest, penalties and attorney fees based on Safeway’s allegedly improper settlement practices.

On August 2, within 30 days of the entry of the judgments in favor of Ford and Manzo against Safeway, counterdefendant Safeway moved to vacate any and all rulings and orders entered by Judge Lip-nick on Manzo’s counterclaim against Safeway on the basis that the judge’s failure to recuse himself violated Supreme Court Rules 61 through 76 and therefore the judgments are void. However, Safeway raised no such challenge to the judgments entered in favor of Ford although the trial judge was the same and the judgments in Ford’s favor were part of the same litigation.

Safeway moved for a jury trial or plenary evidentiary hearing on the question of Safeway’s alleged vexatious, unreasonable conduct in violation of section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767) and on all other outstanding matters.

On August 3, Manzo petitioned the court for judgment against Safeway in the sum of $15,874.67 for penalties for improper settlement procedures in violation of section 155, for prejudgment interest, for Manzo’s pretrial, trial and post-trial attorney fees and for reimbursement of $2,500 attorney fees paid to Ford. Judge Lipnick denied Safeway’s request for a jury trial but granted the motion for plenary evidentiary hearing on the question of Safeway’s conduct.

The hearing on all pending matters was continued from time to time until March 4, 1988, when, following a bench trial on the propriety of Safeway’s conduct, Judge Lipnick entered an order finding Safeway’s conduct on the settlement of Manzo’s claim was capricious, vexatious and unreasonable, based on the holdings in the cases of Watson v. State Farm Fire & Casualty Co. (1984), 122 Ill. App. 3d 559, and Songer v. State Farm Fire & Casualty Co. (1982), 106 Ill. App. 3d 141. On Manzo’s post-trial petitions the court awarded Manzo a judgment against Safeway in the sums of $337.59 for statutory penalties, $475.50 for costs, $2,500 for reimbursement of attorney fees paid by Manzo to Ford, and $8,625 for Manzo’s pretrial, trial and post-trial attorney fees.

On March 8, Safeway moved to vacate the trial judge's order of March 4. The motion was taken under advisement. Thereafter on April 14 and May 10, the matter was continued for future determination. On May 20, Safeway moved for a change of venue alleging prejudice of the trial judge, Judge Lipnick. The motion was granted and the case was transferred to Judge McCormick.

Following a hearing on the question of the trial judge’s bias, Judge McCormick entered a memorandum order on August 19, 1988, which granted Safeway’s motion to strike a certain affidavit of Manzo’s attorney and denied Safeway’s motion to vacate “all orders entered by Judge Lipnick.” In the memorandum order Judge McCormick stated that the burden of showing actual prejudice of the trial judge rested on the movant and concluded that the transcripts of proceedings submitted in support of Safeway’s motion were incomplete and did not support Safeway’s allegation of prejudice. The court found that" “[a] review of the issue presented herein indicates that Judge Lipnick presided over the proceedings in a fair and just manner,” and ordered the case transferred back to Judge Lipnick for further proceedings on Safeway’s motion to vacate the judgment in favor of Manzo on the counterclaim and to vacate the award in favor of Manzo for prejudgment interest, costs, penalties and attorney fees.

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Bluebook (online)
554 N.E.2d 480, 196 Ill. App. 3d 874, 143 Ill. Dec. 545, 1990 Ill. App. LEXIS 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-motor-credit-co-v-manzo-illappct-1990.