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FOURTH DIVISION
FILED: 05/10/01

JUSTICE HOFFMAN delivered the opinion of the court:

The Estate of Mary Beth Duncavage (Estate) appeals from a circuit court order denying itspetition for post-allowance interest on its claim against Pine Top Insurance Company (Pine Top) inthe instant liquidation proceedings. For the reasons which follow, we affirm.

In June 1984, the Estate filed a multi-count complaint against the owner of an apartmentbuilding in which Mary Beth Duncavage was criminally assaulted and killed. The building ownerwas covered under an excess liability umbrella insurance policy issued by Pine Top. During thependency of that suit, the Director of Insurance of the State of Illinois (Director)⁽¹⁾ instituted theinstant liquidation proceeding against Pine Top pursuant to Article XIII of the Illinois InsuranceCode (Ill. Rev. Stat. 1981, ch. 73, pars. 799-833, now 215 ILCS 5/187-221 (West 1998)). OnJanuary 16, 1987, the circuit court entered an order finding Pine Top to be insolvent, appointing theDirector as liquidator, and setting January 17, 1988, as a bar date for filing proofs of claim.

Section 209(6) of the Insurance Code provides that, when a liquidation order has beenentered against an insurance company, any person who has a cause of action against an insured ofthat company under a policy issued by the company shall have the right to file a claim in theliquidation proceedings. Ill. Rev. Stat. 1981, ch. 73, par. 821, now 215 ILCS 5/209(6) (West 1998). On October 26, 1987, the Estate filed a proof of claim for $2 million, the liability limit of the policyinvolved, with the Director. Thereafter, the Illinois Insurance Guaranty Fund paid the Estate$150,000 on its claim in accordance with the provisions of the Illinois Insurance Guaranty Fund Act(Ill. Rev. Stat. 1987, ch. 73, par. 1065.82 et seq., now 215 ILCS 5/532 et seq. (West 1998)). OnJanuary 15, 1993, the circuit court approved the Estate's claim in the sum of $1.85 million, whichrepresented the $2 million claim less the $150,000 payment from the Guaranty Fund. The Directorappealed the circuit court's order allowing the claim, and this court affirmed. In re the Liquidationof Pine Top Insurance Co., 266 Ill. App. 3d 99, 639 N.E.2d 168 (1994).

At the time that the Estate's claim was allowed, it was categorized as a priority level (c) claimunder section 205(1) of the Illinois Insurance Code (Insurance Code). 215 ILCS 5/205(1)(c) (West1992). Section 205(1) has since been amended such that the claims formerly designated as prioritylevel (c) have been redesignated as priority level (d). 215 ILCS 5/205(1)(d) (West 1998). Theparties agree that the amendment accomplishing this change is not relevant to these proceedings andhave, throughout their briefs, referred to the claims falling within this designation as priority level(d) claims. We will do the same.

On April 3, 1995, the Director appeared before the trial court on his application for an orderauthorizing him to pay a 50% first dividend on all claims which had then been allowed at prioritylevel (d). On April 5, 1995, the trial court entered a written order authorizing the Director to makethe requested dividend payments. The order stated, in part: "The payment of a dividend on anallowed claim will constitute a release by the payee of fifty percent (50%) of Pine Top's obligationson the allowed claim." Pursuant to the trial court's order, on May 12, 1995, the Director paid theEstate $925,000, or one half of the principal amount of its $1.85 million claim against Pine Top.

The next event relevant to this appeal took place on October 13, 1999, when the Directorfiled an application for an order authorizing him to pay a second 50% dividend on the allowedpriority level (d) claims as to which a first dividend payment had been made and to pay a 100%dividend with respect to any claims that might be allowed in the future at priority level (d). TheDirector's application contained proposed terms of the second dividend payment, one of which wasthat said payment would "constitute a full and final settlement of Pine Top's obligations on theunderlying claim." On October 27, 1999, the Director appeared before the trial court on itsapplication. The Estate appeared and requested leave to file written objections to the application. The trial court granted leave, and the Estate filed its written objections the following day. It did notobject to the payment of the second dividend but did object to such payment being deemed a "final"payment as to its priority level (d) claim. The Estate asserted that it was entitled to interest on itsclaim, pursuant to section 2-1303 of the Code of Civil Procedure (735 ILCS 5/2-1303 (West 1998)),from the date the claim was allowed to the date the claim was paid. Such interest, the Estate argued,must be paid at the same priority level as the claim itself; namely, priority level (d).

On November 16, 1999, the trial court entered an order stating that it would treat the Estate'swritten objections as a petition for the payment of interest on its allowed claim and setting a briefingschedule on that petition. On the same date, the trial court entered a second order requiring theDirector to pay, on or before January 15, 2000, the remaining dividend payments on allowed prioritylevel (d) claims. That order stated, in part, that such payment would "constitute full and finalsatisfaction of Pine Top's obligations with respect to the allowed amount of the claim" but would notdetermine the claimants' rights, if any, to interest accruing on their claims after the date ofliquidation.

On December 15, 1999, the Estate filed a petition for revival of judgment with respect to the$1.85 million claim allowed on January 15, 1993. In its petition, the Estate acknowledged that theDirector had paid $925,000 of the principal judgment amount on May 12, 1995, but asserted thatthere remained due "the sum of $371,317.81 in interest from January 16, 1993[,] to May 12, 1995,plus $925,000 in principal, with interest on $925,000 at the rate of 9% per annum from May 13,1995."

On January 3, 2000, the Estate received a check for $925,000, representing the second halfof the $1.85 million principal amount of its allowed claim, from the Director. Thereafter, it filed anamended petition for revival of judgment, acknowledging receipt of the second principal payment. In the amended petition, the Estate asserted that there remained due on the judgment "the sum of$371,317.81 in post-judgment interest from January 16, 1993[,] to May 12, 1995, plus $386,599.32in post-judgment interest from May 13, 1995[,] to January 3, 2000[,] at the rate of 9% per annumfrom January 15, 1993."

By way of written order dated July 26, 2000, the trial court denied the Estate's petition forpost-allowance interest on its claim at priority level (d). In a separate order dated that same day, thetrial court dismissed as moot the Estate's amended petition to revive judgment. The Estate nowappeals both of these orders pursuant to Supreme Court Rule 304(b)(2), which authorizes an appealfrom a judgment or order entered in the administration of a liquidation which finally determines therights or status of a party and which is not appealable pursuant to Supreme Court Rule 307(a). 155Ill. 2d R. 304(b)(2).

On appeal, the Estate argues that the trial court erred in denying its petition for an award ofpost-allowance interest at the same priority level as its claim. Before turning to the merits of theissue, we must address the Director's contention that the Estate waived any claim to post-allowanceinterest by failing to raise its claim at the time the first dividend was paid. As stated above, on April3, 1995, the Director appeared before the trial court on his petition for authorization to make a 50%first dividend payment on all claims which had, to that date, been allowed at priority level (d). TheEstate objected to the language of the proposed order which the Director had prepared. Specifically,the Estate objected to language stating that the payment constituted "a settlement of fifty percent",the objection apparently being that the language might suggest that each creditor had accepted thepayment as a settlement of its claim. The Estate asserted that the payment being made was a "partialpayment" rather than a "settlement." The Director offered to substitute the word "release" for"settlement", and the trial court consented to this change. The Estate's attorney first objected, statingthat the word release had the same connotation as settlement, but then stated "That's fine." On April5, 1995, the trial court entered a written order authorizing the Director to make the requesteddividend payments. The order stated, in part: "The payment of a dividend on an allowed claim willconstitute a release by the payee of fifty percent (50%) of Pine Top's obligations on the allowedclaim."

The Director contends that, by failing to assert its right to post-allowance interest at that timeand by failing to object to the April 5 order stating that the payment being made constituted 50% of"Pine Top's obligations on the allowed claim", the Estate waived any claim that Pine Top's"obligation" to it included post-allowance interest. We disagree. It is well-settled that nothing lessthan a tender of the full amount of judgment due, plus interest accrued to that point, will stop theaccrual of interest under section 2-1303. 735 ILCS 5/2-1303 (West 1998); Yassin v. CertifiedGrocers of Illinois, Inc., 133 Ill. 2d 458, 462-64, 551 N.E.2d 1319 (1990); Halloran v. Dickerson,287 Ill. App. 3d 857, 862, 679 N.E.2d 774 (1997). We cannot say that the Estate waived its claimto post-allowance interest by accepting a partial payment of the principal amount of its claim withoutdemanding payment of the interest accrued to that date. As the Estate points out, at the time that thefirst dividend payment was made, it was unclear whether there would be enough money to pay eventhe remaining principal on priority level (d) claims in full, let alone interest. The Estate did raise anobjection to the proposed language of the order, seeking to ensure that it would not be precludedfrom seeking additional amounts in the future. We find no waiver occurred. Having so determined,we now turn to the merits of the appeal.

There is no dispute with regard to the facts in the instant case. Rather, the question presentedfor our resolution is one of law; namely, whether a claimant whose claim is allowed against aninsolvent insurance company in liquidation proceedings under Article XIII of the Insurance Code isentitled to interest on its claim pursuant to section 2-1303 of the Code of Civil Procedure, payableat the same priority level as the claim itself. As this is a matter of statutory construction, our reviewis de novo. Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637 (1997).

It is settled law that an award of interest is not recoverable absent a statute or agreementproviding for it. Johnson v. Human Rights Comm'n, 173 Ill. App. 3d 564, 568, 527 N.E.2d 883(1988). Section 12-109 of the Code of Civil Procedure provides that "[e]very judgment except thosearising by operation of law from child support orders shall bear interest thereon as provided inSection 2-1303." 735 ILCS 5/12-109 (West 1998). Section 2-1303 of the Code of Civil Procedureprovides that "[j]udgments recovered in any court shall draw interest at the rate of 9% per annumfrom the date of the judgment until satisfied ***" (735 ILCS 5/2-1303 (West 1998)). It is upon thesestatutory provisions that the Estate relies to establish its right to the payment of post-allowanceinterest at priority level (d).

The parties, however, disagree as to whether section 2-1303 applies to proceedings conductedpursuant to Article XIII of the Insurance Code, which governs the liquidation of insolvent insurancecarriers. 215 ILCS 5/187-221 (West 1998). Before turning to the parties' arguments on that issue,we will consider the threshold question of whether a circuit court order allowing a claim inproceedings to liquidate an insolvent insurance company constitutes a "judgment" within themeaning of section 2-1303. We find the Illinois Supreme Court's decision in Mitchell v. Mayo, 16Ill. 83 (1854), to be dispositive. In Mitchell, the court was presented with the question of whetherthe circuit court's decision to allow a creditor's claim against a probate estate constituted a "'judgment recovered before any court or magistrate authorized to enter up the same within this State'", within the meaning of the post-judgment interest statute then in effect. Mitchell, 16 Ill. at 84. Itanswered the question affirmatively, reasoning that:

"It was a judgment of a court of competent jurisdiction in a judicial proceedingproperly instituted and regularly pending before it. * * * It is true that no executioncould be issued upon the judgment, but in this respect it is like a judgment of thecircuit court against an administrator. Upon such a judgment as upon this, noexecution is awarded, but the judgment is ordered to be paid in the due course ofadministration." Mitchell, 16 Ill. at 84.

Similarly, the order allowing the Estate's $1.85 million claim against Pine Top was entered by a courtof competent jurisdiction during a judicial proceeding properly instituted and pending before it. Accordingly, the trial court's order allowing the Estate's claim constitutes "a judgment[] recoveredin any court" within the meaning of section 2-1303.

We now turn to the parties' arguments as to the applicability of section 2-1303 to proceedingsunder Article XIII. In support of its argument that section 2-1303 applies to such proceedings, theEstate first relies on section 190(4) of the Insurance Code, which provides that "[t]he pleadings andproceedings insofar as not otherwise regulated by *** Article [XIII], shall be as in other civilproceedings." 215 ILCS 5/190(4) (West 1998). The Estate contends that, by virtue of this language,the entire Code of Civil Procedure is rendered applicable to proceedings under Article XIII unlessexplicitly stated otherwise therein. In support of this assertion, the Estate cites People ex rel. Baylorv. Bell Mutual Casualty Co., 54 Ill. 2d 433, 441, 298 N.E.2d 167 (1973), where our supreme courtrelied on section 190(4) in concluding that section 26.1 of the Civil Practice Act (now 735 ILCS 5/2-408 (West 1998)), governing intervention of parties, applied to proceedings under Article XIII,which contained no provision on that subject. Noting that Article XIII contains no provisionexpressly providing for or prohibiting the payment of post-allowance interest, the Estate asserts thatsection 2-1303 of the Code of Civil Procedure applies.

The Director disputes the Estate's assertion that section 190(4) of the Insurance Codeincorporates section 2-1303 of the Code of Civil Procedure into Article XIII. He first notes, as didthe trial court, that the remaining six subparagraphs of section 190 all pertain to the initialproceedings at which the trial court determines whether an insurance company should be placed intoliquidation or rehabilitation. See 215 ILCS 5/190(1)-(3), (5)-(7) (West 1998). When subparagraphfour is viewed in this context, the Director asserts, it is clear that it is meant to apply only to theinitial hearing and does not apply to proceedings following the trial court's finding of insolvency andappointment of the Director as liquidator.

As the Estate correctly notes, though, our supreme court, in Bell Mutual, relied on section190(4) to apply section 26.1 of the Civil Practice Act in proceedings taking place well after thefinding of insolvency and appointment of a liquidator. See Bell Mutual, 54 Ill. 2d at 433. TheDirector correctly notes that its argument that section 190(4) applies only to the initial stage ofliquidation proceedings was not raised or addressed in Bell Mutual. Nonetheless, implicit in the BellMutual decision is our supreme court's conclusion that section 190(4) renders at least certainprovisions of the Code of Civil Procedure applicable in proceedings beyond the initial stage underArticle XIII. We decline the Director's invitation to find that Bell Mutual is "clearly erroneous" tothe extent that it so holds.

The Director further contends that, even if section 190(4) applies to all phases of proceedingsunder Article XIII, it provides only that "the pleadings and proceedings, insofar as not otherwiseregulated by this Article, shall be as in other civil proceedings." The Director contends that,although Article XIII does not contain a provision expressly prohibiting the payment of interest ona claim from the date it is allowed to the date it is paid, it does "otherwise regulate" distribution ofassets in a manner that is inconsistent with the payment of post-allowance interest at the samepriority level as the claim.

The Director sets forth two arguments in support of his contention that Article XIII implicitlyprohibits the payment of post-allowance interest. First, he argues that Article XIII does notauthorize him to pay post-allowance interest to claimants. Section 210 of the Insurance Code, henotes, provides that "the Director shall pay all allowed claims in full accordance with the prioritiesset forth in Section 205." 215 ILCS 5/210 (West 1998). Section 205 of the Insurance Code setsforth the priority for distribution of assets, designating the order in which the various classes ofclaims are to be paid. 215 ILCS 5/205 (West 1998). Relying on section 210, the Director assertsthat he is authorized only to pay "claims" and to pay them in the order specified in section 205. TheDirector contends, however, that, even though "claim" is not defined in Article XIII, the term, asused therein, clearly does not include post-allowance interest. In support of this assertion, he pointsto section 209 of Article XIII, which provides, in part:

"A proof of claim shall consist of a written statement signed under oath setting forththe claim, the consideration for it, whether the claim is secured and, if so, how, whatpayments have been made on the claim, if any, and that the sum claimed is justlyowing from the company." 215 ILCS 5/209(1) (West 1998).

The Director notes that, on the date a claim is filed and likewise on the date it is allowed, the "sumclaimed" due and owing from the insolvent insurance company cannot include any post-allowanceinterest, as such interest would not yet have accrued and there could be no way of determining howmuch interest might accrue thereafter. Accordingly, he concludes, the term "claim," as used insection 209, cannot encompass post-allowance interest. Citing the general principle that the sameword used in different parts of a statute should be accorded the same meaning in both places unlessthere is some indication that the legislature intended otherwise (McMahan v. Industrial Comm'n, 183Ill. 2d 499, 513, 702 N.E.2d 545 (1998)), the Director asserts that the term claim, as used in section210, also does not encompass post-allowance interest. He concludes, therefore, that he is notauthorized to pay post-allowance interest.

The Estate disputes the Director's contention that the term "claim"does not encompass post-allowance interest. It contends that, once a claim is allowed, any interest accruing on the claim ispart and parcel of and inseparable from the claim itself. In support of this assertion, it relies on oursupreme court's decision in Eddy v. People, to Use of Bloch, 187 Ill. 304, 58 N.E. 397 (1900).

In Eddy, the plaintiff was the holder of a sixth class preferred claim against a probate estate. The claim was allowed in 1891, and the principal amount of the claim was paid in 1897. Theplaintiff sued, seeking to collect post-judgment interest on the claim. Eddy, 187 Ill. at 305-06. Oursupreme court concluded that the plaintiff had the right to payment of the principal and interest onhis sixth class claim before any payments were made to creditors of the seventh class, this despitethe fact that such payment would leave an insufficient amount of money to pay the seventh classcreditors in full. The court reasoned that "the claim embraces the interest on it as well as theprincipal" and that the statutory interest is "a mere incident to the principal thing, attaching to it, andnot separable from it for the purpose of classification." Eddy, 187 Ill. at 307. Having so addressedthe merits of the issue, however, the court concluded that the plaintiff had waived his right topayment of interest by consenting to accept payment of the principal amount of his claim and to havethe remainder of the estate assets paid to holders of seventh class claims. Eddy, 187 Ill. at 307-09.

We agree with the Estate that the Eddy court's pronouncement that interest is a "mereincident" to the principal claim amount renders meritless the Director's argument that the wordclaim, by definition, can not include post-allowance interest. We do not, however, agree with theEstate's further assertion that the Eddy court's pronouncement that post-allowance interest is payableon claims against a probate estate compels the conclusion that post-allowance interest is payable onclaims against an insolvent insurance company in a liquidation proceeding. There are definitesimilarities between proceedings to distribute the assets of a probate estate and those to distributethe assets of an insurance company. The probate law, as it was in effect at the time Eddy wasdecided and in its current form, allows creditors of the decedent to file claims against the estate,provides a mechanism for claims to be reviewed and allowed or disallowed, and sets forth the orderin which allowed claims should be paid. Laws 1871-72, p. 93-95,