Opinion
No. 74-221
Decided February 4, 1975. Rehearing denied February 25, 1975. Certiorari granted April 21, 1975.
Plaintiffs in personal injury action executed, in Illinois, a covenant not to sue in favor of defendant's employee. On basis of that agreement, trial court entered summary judgment for defendant, and plaintiffs appealed.
Affirmed
1. RELEASE — Executed in Illinois — Interpretation and Effect — Law of That State. Where covenant not to sue was executed in Illinois, its interpretation and effect must be determined by the law of that state.
2. Law of ILLINOIS — Covenant Not To Sue — Executed by Employee — Releases Employer — Summary Judgment — Proper. Since it is settled law in Illinois that, absent an express reservation, a covenant not to sue an employee releases the employer, and since such a covenant had been executed in Illinois by employee of defendant, motion for summary judgment was properly granted that defendant.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Hoffman, McDermott Hoffman, Gerald P. McDermott, for plaintiffs-appellants.
Duane O. Littell, William J. Senter, for defendant-appellee.
Plaintiffs appeal a summary judgment dismissing their action, We affirm.
Plaintiffs sought damages arising out of an automobile accident in which their vehicle collided with one owned by defendant and driven by one of defendant's employees. Prior to bringing this action against the employer, plaintiffs executed a covenant not to sue the employee which covenant provided that plaintiffs would "forever refrain from instituting . . . any action . . . for damages . . . on account of . . . " the accident, and further, that plaintiffs agreed "to hold the said [employee] harmless from any damage to [plaintiff] resulting or to result from said accident." The document was executed in Illinois. Defendant moved for summary judgment on the ground that the covenant not to sue the employee released the defendant employer from liability. We agree.
The plaintiffs concede that the employee and employer are not joint tortfeasors even though they may be jointly and severally liable, and that the employer's liability is contingent upon that of the employee. They base their right to recover from defendant solely on the doctrine of respondeat superior.
[1] The contract having been executed in Illinois, its interpretation and effect must be determined by the law of that state. Western Enterprises, Inc., v. Robo-Sales, Inc., 28 Colo. App. 157, 470 P.2d 931; Western Spring Service Co. v. Andrew, 229 F.2d 413 (10th Cir.).
[2] It is well settled law in Illinois that since the liability of an employer for the torts of his employee is derivative, a covenant not to sue the employee, which does not expressly reserve the right to proceed against the employer, releases the employer. Holcomb v. Flavin, 34 Ill. 2d 558, 216 N.E.2d 811. See Edgar County Bank Trust Co. v. Paris Hospital, Inc., 10 Ill. App. 3rd 465, 294 N.E.2d 319. The covenant not to sue in the instant case contains no reservation of right to proceed against the employer. Therefore the motion for summary judgment was properly granted.
Judgment affirmed.
JUDGE SMITH and JUDGE KELLY concur.