In re Estate of Coleton Nathaniel Foley

Opinion

NOTICE 2026 IL App (5th) 250609-U NOTICE Decision filed 07/24/26. The This order was filed under text of this decision may be NO. 5-25-0609 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE ESTATE OF COLETON NATHANIEL FOLEY, ) Appeal from the Deceased, ) Circuit Court of ) Hamilton County. Plaintiff-Appellant, ) ) v. ) No. 23-PR-13 ) COLIN CHARLES DODD, ) Honorable ) R. James Giacone II, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE McHANEY delivered the judgment of the court. Justices Sholar and Bollinger concurred in the judgment.

ORDER

¶1 Held: Where the circuit court properly considered the statutory language of section 2- 2301 of the Code of Civil Procedure (735 ILCS 5/2-2301 (West 2022)) in denying the request for assessment of interest on the delayed settlement paid to the Estate of Coleton Nathaniel Foley, we affirm.

¶2 On September 28, 2023, a motor vehicle collision in Hamilton County resulted in the death

of Coleton Nathaniel Foley (Coleton). The other driver was Colin Charles Dodd (Dodd). Coleton

was survived by his parents and four minor siblings. Jennifer K. Vickers, Coleton’s mother, was

appointed the independent administrator of Coleton’s estate (the Estate). Thereafter, she filed a

lawsuit against Dodd in federal court seeking damages pursuant to the Wrongful Death Act (740

ILCS 180/0.01 et seq.(West 2022)). The parties reached a settlement on October 18, 2024.

1 ¶3 On February 10, 2025, the settlement agreement and release documents were signed. The

resulting confidential settlement payment was delayed because the check was lost by the United

States Postal Service. Ultimately, the payment was wired to the Estate’s attorney. At issue in this

appeal is whether the delayed settlement payment mandated the imposition of an interest penalty.

The Illinois probate court overseeing the settlement process concluded that no interest penalty was

due because Dodd’s attorney and insurer substantially complied with the statutory delivery

requirement. For the following reasons, we affirm.

¶4 I. BACKGROUND

¶5 On December 2, 2024, the Hamilton County circuit court appointed four guardians ad litem

(GAL) to represent the minor siblings. The settlement approval hearing was held on February 10,

2025, with a disputed issue over how the GAL fees would be assessed between the parties. The

court approved the settlement on February 10, 2025, and ordered each side to pay 50% of the GAL

fees. The court also concluded that both the attorney’s contingency fee and the litigation expenses

were fair, reasonable, and customary, and approved those sums to be deducted from the settlement

proceeds.

¶6 On February 10, 2025, the Estate’s attorney signed the settlement agreement and release.

On February 11, 2025, the parties filed a joint motion in federal court asking the court to abstain

from adjudicating settlement approval and distribution. The federal court granted this motion.

¶7 Section 2-2301(d) of the Code of Civil Procedure (735 ILCS 5/2-2301(d) (West 2022))

mandates prompt payment of settlements “within 30 days of tender *** of the executed release

***.” The original check was lost by the United States Postal Service, and the substituted wire

transfer was completed on March 17, 2025. Then, the Estate filed a motion in federal court to

enforce the settlement and to impose the late payment penalties pursuant to the statutory timeline.

2 Ultimately, the federal court declined to consider the motion, ruling that the Illinois circuit court

was the proper forum.

¶8 On April 7, 2025, the Estate then filed a petition in Hamilton County circuit court asking

the court to assess statutory interest for the late settlement payment. On April 14, 2025, Dodd filed

a motion to quash the petition arguing that the circuit court lacked jurisdiction over him and/or the

subject matter because he had never been formally made a party in the probate court case, noting

that the Estate amended the probate court caption to name Dodd as a party without leave of court

or service of process. In response, the Estate argued that it did not need leave of court to pursue

the statutory remedy for late payment of the settlement. However, the Estate filed a motion for

leave to add Dodd as a party. The court granted that motion on May 8, 2025, and denied Dodd’s

motion to quash, finding that it had jurisdiction over Dodd based upon the participation of his

attorneys in the settlement approval and allocation of GAL fees.

¶9 In response to the Estate’s petition to impose a penalty for late payment of the settlement

funds, Dodd submitted an affidavit of Stephen Squatriglia, a senior claims adjuster at Vault

Insurance, explaining the timeline of the attempted payment and other issues. The initial check

was the first settlement check to be issued by Vault Insurance pursuant to a new software system.

The process of issuing the check began on February 20, 2025, with an unspecified error

necessitating a stop payment process. On February 27, 2025, a second check issuance request was

made in the system, which was ultimately approved. The check was issued and sent via certified

United States Postal Service mail on March 7, 2025. Thereafter, the United States Postal Service

notified Vault Insurance that delivery of the check would be delayed. On March 13, 2025, Dodd’s

attorney informed the Estate’s attorney about the delay, and stated that the check would be hand-

delivered on March 14, 2025. On March 14, 2025, the United States Postal Service confirmed that

3 the check would not be delivered as planned because it was “lost in the mail.” Vault Insurance

then stopped payment on the missing check, confirmed that funds for the settlement were still

available, and made a lump sum payment by wire transfer to the Estate’s attorney on March 17,

2025.

¶ 10 On July 2, 2025, the circuit court held a hearing on the Estate’s petition to impose a

statutory interest penalty for late payment. The court found that the Illinois interest penalty statute

applied and further agreed that the penalty statute applied in this case because the settlement

documents contained no other timeline for payment. The court noted that the settlement release

documents were executed by Dodd’s attorney on February 10, 2025; that the settlement documents

contained no timeline for payments; and that the procedural statute contained a 30-day timeline

for tendering payment. The court concluded that Vault Insurance made a good faith effort to pay

the settlement proceeds within the required statutory timeline, noting the various steps the

company took as described in the insurer’s affidavit. The court found that the statute’s purpose is

to mandate the diligent payment of settlements after the settlement documents are signed. The

court found that there was sufficient evidence of diligence in this case, and concluded that Dodd,

through his insurer, substantially complied with the statutory requirements. Thus, the court

declined to impose any remedy for Vault Insurance’s late payment. The Estate appeals.

¶ 11 II. ANALYSIS

¶ 12 On appeal, the Estate’s attorneys contend that the circuit court erred in not awarding

statutory interest because the settlement payment was not made within 30 days after the settlement

documents were signed. Section 2-2301(d) of the Code of Civil Procedure provides: “A settling

defendant shall pay all sums due to the plaintiff within 30 days of tender by the plaintiff of the

4 executed release and all applicable documents ***.” 735 ILCS 5/2-2301(d) (West 2022). The

statute also provides:

“If, after a hearing, the court having jurisdiction over the parties finds that timely payment

has not been made by a defendant pursuant to subsection (d) of this Section, judgment shall

be entered against that defendant for the amount set forth in the executed release, plus costs

incurred in obtaining the judgment and interest at the rate specified under Section 2-1303

of this Code, calculated from the date of the tender by the plaintiff under subsection (d) of

this Section.” 735 ILCS 5/2-2301(e) (West 2022).

Section 2-1303 of the Code of Civil Procedure provides that the interest rate referenced in section

2-2301(e) is “9% per annum from the date of the judgment until satisfied.” 735 ILCS 5/2-1303

(West 2022).

¶ 13 On appeal, Dodd argues that he was not a party in the probate court case because he never

submitted to the court’s jurisdiction. We must first determine if the Illinois circuit court had

jurisdiction over Dodd. We review the question of a court’s jurisdiction on a de novo basis where

the court made the determination without an evidentiary hearing. In re Jade J., 2025 IL App (1st)

241803, ¶ 15 (citing Russell v. SNFA, 2013 IL 113909, ¶ 28).

¶ 14 In this case, the initial wrongful death lawsuit was filed in federal court because the

defendant was not an Illinois resident. However, because the case involved minor beneficiaries

whose interests must be protected, Illinois substantive law mandates Illinois probate court approval

of the settlement. Ott v. Little County of Mary Hospital, 273 Ill. App. 3d 563, 570-71 (1995).

¶ 15 The record reflects that Dodd’s attorneys filed an entry of appearance in the probate court

case on February 7, 2025, seeking a hearing to approve the settlement agreement. Then, on April

7, 2025, the Estate filed a petition to impose the statutory interest penalty due to the late payment

5 of the settlement. Although the entry of appearance Dodd’s attorneys filed in the probate court

case did not specifically state that the entry was connected to Dodd, the court found that he

submitted to the court’s jurisdiction because of that appearance and his attorneys’ participation in

the later hearing regarding the allocation of the GAL fees and approval of the settlement. We agree

with the court’s conclusion that it had jurisdiction over Dodd. When an attorney files an appearance

or a document in court, that filing “constitutes voluntary submission to the circuit court’s personal

jurisdiction and waives any objections to personal jurisdiction.” Jade J., 2025 IL App (1st) 241803,

¶ 20.

¶ 16 Having determined that the Illinois probate court had jurisdiction over Dodd, we turn to

the question whether section 2-2301 mandates imposition of interest penalties in this case. The

detailed settlement agreement in this case is six pages in length and was filed as a sealed exhibit

to the Hamilton County petition for approval of the confidential settlement. Two subsections of

section 2-2301 were referenced in the settlement document. In paragraph four, subsection (c) is

referenced as follows:

“Furthermore, it is understood and agreed that Plaintiff’s attorneys shall hold the full

amounts of any and all liens, rights of subrogation, and other third-party rights of recovery

that may apply to the proceeds of this settlement in their client fund account pending the

final resolution of the amount of the right of recovery pursuant to 735 ILCS 5/2-2301(c).”

The settlement document makes no reference to and thus does not incorporate either section 2-

2301(d), which mandates payment within 30 days of tender of the settlement documents, and/or

section 2-2301(e), which requires the payment of costs and interest if the settlement payment is

not received within 30 days. The attorneys representing the Estate were aware of section 2-2301

and could have included the more specific subsections they now ask this court to apply, but they

6 selectively chose only to reference 2-2301(c). While the Estate argues that “existing law becomes

an integral part of every contract” (see Sproull v. State Farm Fire & Casualty Co., 2021 IL 126446,

¶ 20), the inclusion of only subsection 2-2301(c) undermines their argument on appeal that

subsections 2-2301(d) and (e) were intended to apply in this case.

¶ 17 Moreover, paragraph seven of the settlement agreement contains a very specific integration

clause: “This release contains the entire agreement between the parties hereto and the terms of this

release are contractual and not a mere recital. It is expressly understood and agreed that there has

been no promise or representation except as expressly provided herein.” “An integration clause is

a clause which provides that any prior negotiations leading up to the contract are subsumed in the

contract and that the contract is complete in itself.” Set Environmental, Inc. v. Power Cartage Inc.,

2022 IL App (1st) 211403, ¶ 37 (citing Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457,

464-65 (1999)). However, an integration clause will not stop parties from making a claim of fraud

based upon statements not contained in the contract. Bauer v. Giannis, 359 Ill. App. 3d 897, 907

(2005) (citing Vigortone AG Products, Inc. v. PM AG Products, Inc., 316 F.3d 641, 644 (7th Cir.

2002)). Here, the claim is not based upon fraud, but upon late receipt of the settlement funds caused

solely by the United States Postal Service.

¶ 18 Finally, we note that the circuit court thoroughly analyzed the statutory language and

legislative intent, in concluding that while the statutory language is intended to require payment in

a timely fashion, it did not require that the payment be received within the 30 days after the

settlement documents were signed: “The legislature used the language ‘shall pay’ in Section 2-

2301(d). It could have said ‘received by Plaintiff’ had it intended that the money actually be

received by Plaintiff within the 30 days.” The court also noted that the legislature repeatedly used

the word “tender” throughout the statute, but that in subsection 2-2301(d), the legislature instead

7 used the word, “pay.” The court distinguished “tender” from “pay” stating: “Pay is a verb that

requires action by the Payor.” Noting that the purpose of section 2-2301(d) is to mandate diligence

in both the preparation of settlement documents and the payment of settlements after the

documents are signed, the court concluded that evidence in this case established “sufficient

diligence” and “substantial compliance” with the provisions of section 2-2301(d). We agree with

the circuit court’s analysis and conclusion that the legislature’s choice of words in this statutory

section was focused on the settling payor’s actions in making payment to the plaintiffs instead of

being focused on the actual receipt of the payment.

¶ 19 Having carefully reviewed the circuit court’s factual findings in this case, we find that the

defendant substantially complied with section 2-2301. We concur with the circuit court’s

conclusion that there was “a good faith effort to pay the settlement proceeds within the required

timeframe” of the statutory provision, and that the court’s denial of the Estate’s motion for interest

was appropriate given the unique circumstances of this case.

¶ 20 III. CONCLUSION

¶ 21 For the foregoing reasons, we affirm the Hamilton County circuit court’s order denying the

Estate of Coleton Nathaniel Foley’s request for interest on the paid settlement.

¶ 22 Affirmed.