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SIXTH DIVISION
April 26, 2002

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Barbara Saichek, appeals an order of the circuit court granting defendant, MalgorzataLupa's section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)) motion to dismissplaintiff's negligence complaint based on a satisfaction/release of judgment that plaintiff executed withcodefendant Valentin Zdunkevich. On appeal, plaintiff contends that the court erred in granting themotion to dismiss where plaintiff executed the satisfaction/release of judgment only as to Zdunkevich,and plaintiff did not intend to release her claim against Lupa. We reverse and remand for furtherproceedings.

Plaintiff sustained injuries when the cab in which she was riding, driven by Zdunkevich, collidedwith a car driven by Lupa. Plaintiff filed a two-count complaint, with count I alleging Lupa's negligencein causing the collision and count II alleging negligence on the part of Zdunkevich. While Lupa filedan answer to the complaint, Zdunkevich defaulted when he did not file an appearance or any otherresponse. The case was assigned for a prove-up of damages and the court entered a default judgmentagainst Zdunkevich in the amount of $40,792. Plaintiff then filed an action against American CountryInsurance Company (American Country), Zdunkevich's insurer, to collect on the judgment. AfterAmerican Country agreed to pay the judgment for $40,792 plus costs, plaintiff executed asatisfaction/release of judgment as to American Country and Zdunkevich. The satisfaction/release ofjudgment specifically states that it pertains to the release of judgment "entered only against Valentin N.Zdunkevich & American Country Insurance" and the "cause remains pending as to defendantMalgorzata Lupa." (Emphasis added.)

Lupa then filed a section 2-619 motion to dismiss plaintiff's complaint against Lupa based onthe satisfaction/release of judgment. The trial court granted Lupa's motion, stating:

"[T]here has been a judicial determination to the amount of damages [plaintiff] suffered duringthis car accident. Because the damages are capped at $40,792 under that Holman case, *** that'sthe cap of her damages. She's gotten every penny, plus costs and interest. There is nothing thatcould proceed against Lupa."

Plaintiff filed this timely appeal.

The sole issue on appeal is whether the trial court erred in granting Lupa's motion to dismisswhen the satisfaction/release of judgment executed by plaintiff specifically stated it released the judgment"only" against Zdunkevich and American Country. The standard of review for motions to dismiss isde novo. Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001).

Our case is similar to Holman v. Simborg, 152 Ill. App. 3d 453 (1987). In Holman, the plaintifffiled a two-count complaint against the defendants to recover damages for injuries he sustained whileworking on the roof of a building owned and managed by defendants. Holman, 152 Ill. App. 3d at 454. Count I was based upon defendants' negligence, and count II charged defendant's liability under theStructural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69). Holman, 152 Ill. App. 3d at 454. The trial court granted defendants' motion for a directed finding on the Structural Work Act count, andthe cause proceeded to trial on the negligence count. Holman, 152 Ill. App. 3d at 454. On August 17,1982, the jury returned a verdict in favor of plaintiff, finding plaintiff suffered total damages in theamount of $116,371. The jury also found plaintiff 65 % comparatively negligent and reduced the awardaccordingly to $40,730. Holman, 152 Ill. App. 3d at 454-55. The plaintiff in Holman appealed thedirected finding. The appellate court remanded the cause for a new trial on defendants' liability underthe Structural Work Act with damages fixed at $116,371 "total damages" found by the original juryverdict. Holman, 152 Ill. App. 3d at 455.

Prior to the trial on remand, the plaintiff accepted a payment by defendants of $40,730 plusinterest in satisfaction of the August 17 judgment on the negligence count. Holman, 152 Ill. App. 3d at455. The court issued an order stating that plaintiff, "'having received full satisfaction and payment ofthe judgment of August 17, 1982, releases the judgment.'" (Emphasis omitted.) Holman, 152 Ill. App.3d at 455. The cause proceeded to trial on the Structural Work Act count and the jury rendered a verdictin favor of plaintiff for $75,641, the difference between total damages of $116,371, and the $40,730 paidto plaintiff in satisfaction of judgment on the negligence count. Holman, 152 Ill. App. 3d at 455.

The defendants appealed, contending that the payment made in satisfaction of the negligenceclaim operated as a full satisfaction of plaintiff's injury claim. Holman, 152 Ill. App. 3d at 455-56. Theappellate court disagreed, holding that "the intent of the parties [was] of central importance" (Holman,152 Ill. App. 3d at 456) and:

"To determine the intent of the parties, it is necessary to examine the language of theorder of satisfaction and release in light of the circumstances existing at the time of thetransaction. [Citation.] The record shows that at the time the order was entered, bothparties were aware that the cause had been remanded for a new trial on the issue ofliability under the Structural [Work] Act count. There was no question that thedefendants, having abandoned their appeal on the amount of the negligence judgment,owed the plaintiff at the very least the amount paid pursuant to the order. It was underthese circumstances that the plaintiff insisted on qualifying the language of the order toinclude a statement that it was intended to encompass only the 'judgment of August 17,1982.' We therefore conclude that the qualifying language contained in the order, whenconsidered in light of the parties' knowledge that a second trial would take place,establishes that the plaintiff did not intend to accept the payment as full satisfaction ofhis injury claim." Holman, 152 Ill. App. 3d at 456-57.

Here, plaintiff's claim for damages alleged one count of negligence against Lupa and anothernegligence count against Zdunkevich. Plaintiff subsequently executed a satisfaction/release of judgmentfor $40,792 "only" as to Zdunkevich and his insurer, American Country, specifically stating that the"cause remains pending as to defendant Malgorzata Lupa." As in Holman, the qualifying languagecontained in the order, when considered in light of the parties' knowledge that plaintiff's claim allegedone count of negligence against Lupa and one count of negligence against Zdunkevich, demonstratesthat plaintiff did not intend for the $40,792 payment to constitute full satisfaction of her injury claim.

Defendant Lupa contends that the $40,792 assessed in plaintiff's prove-up constitutes totaldamages and plaintiff, having received the entire amount from Zdunkevich, is entitled to only one fullsatisfaction of her injury. Lupa argues that if plaintiff recovers additional damages from her, plaintiffwould receive double recovery for her injury.

Lupa's concern here is unfounded. As discussed above, plaintiff did not intend for the paymentto constitute full satisfaction of her claim. Further, the record does not contain a transcript of the prove-up of damages to support Lupa's contention that the prove-up addressed the total damages of theplaintiff. The clear language of the order, absent any evidence to the contrary in the record, shows thatplaintiff intended the payment to constitute only partial satisfaction of her claim. Therefore, thesatisfaction/release of judgment executed against Zdunkevich and American Country does not barplaintiff from pursuing her claim against Lupa. See Holman, 152 Ill. App. 3d at 456.

Further, a defendant has a right to a setoff of plaintiff's settlement with a joint tortfeasor and thedefendant may raise this right at any time. Kipnis v. Meltzer, 253 Ill. App. 3d 67, 69 (1993). Anyjudgment entered against a nonsettling defendant will be reduced by the setoff amount, even if theplaintiff's award is reduced to zero. Kipnis, 253 Ill. App. 3d at 68. Thus, any judgment awarded toplaintiff against Lupa will be reduced by $40,792, the amount plaintiff recovered in her judgment againstZdunkevich. Such a setoff eliminates the possibility that plaintiff will recover double damages for herinjury.

For the foregoing reasons, we reverse the circuit court and remand for further proceedings.

Reversed and remanded.

BUCKLEY, J., and O'MARA FROSSARD, J., concur.