FIFTH DIVISION
April 11, 2003

Plaintiff Dagmar Adams, as mother and next friend of TiffanyAdams, appeals the dismissal of her complaint seeking prejudgmentinterest from defendant American International Group (AIG) on theproceeds of a settlement paid by American International SpecialtyLines Insurance Company (AISLIC). Plaintiff raises the followingissues on appeal: (1) whether the complaint states a cause ofaction for prejudgment interest, specifically, whether therelease executed by plaintiff is an "instrument of writing"within the meaning of section 2 of the Illinois Interest Act (theInterest Act)(815 ILCS 205/2 (West 2000)); (2) whether thecomplaint states a cause of action for unjust enrichment; (3)whether the release bars plaintiff's action; and (4) whether AIGis a proper party. For the reasons that follow, we hereby affirm.

I. BACKGROUND

This appeal stems from a negligence action brought byplaintiff in 1995, against Glen Oaks Nursing Center, Inc. (GlenOaks), and others for damages suffered by Tiffany Adams, adisabled person, while a patient at Glen Oaks. In October 2000,the parties to the negligence action reached an oral settlementagreement which provided for a $250,000 payment to plaintiff,payable in two equal installments of $125,000. Thereafter, onOctober 26, 2000, plaintiff executed a release discharging GlenOaks and its insurers. The release states that it is executed"in consideration of the payment of the total sum of Two-HundredFifty Thousand Dollars." The release acknowledges that as acondition precedent to payment, plaintiff was to obtain a courtorder approving the settlement. The release further states thatthe settlement payment would be made in two equal installments of$125,000. The release does not state a due date for thepayments, nor does it provide for the payment of interest. OnNovember 15, 2000, AISLIC paid plaintiff the first installment of$125,000. On December 15, 2000, AISLIC paid plaintiff the secondand final installment of $125,000.

On December 27, 2000, two weeks after receiving the finalinstallment, plaintiff filed the instant lawsuit against AIG. Plaintiff's complaint alleges that, at the time of the occurrencegiving rise to the negligence action, Glen Oaks was insured "byeither AIG or one of its member companies who undertook to defendthe suit."⁽¹⁾ The complaint alleges that on October 13, 2000, AIGand plaintiff agreed to settle plaintiff's negligence claim for$250,000 to be paid in two equal installments; the first inOctober 2000, and the second in November 2000. The complaintfurther alleges that on October 27, 2000, plaintiff forwarded arelease to AIG releasing Glen Oaks from its liability arising outof the occurrence. According to the complaint, AIG did not paythe October 2000 installment of $125,000 until November 15, 2000,and did not pay the November 2000 installment until December 15,2000.

In count I of the complaint, plaintiff seeks prejudgmentinterest pursuant to section 2 of the Interest Act (815 ILCS205/2 (West 2000)). In count II of the complaint, plaintiffseeks prejudgment interest based on a theory of unjust enrichmentasserting that AIG retained the settlement funds beyond the timeagreed to for its own purposes, in violation of "fundamentalprinciples of justice and good conscience."

In addition to seeking judgment against AIG for the interestallegedly due plaintiff, the complaint also asks that plaintiffbe allowed to maintain her action as a nationwide class action,for an accounting by AIG of "every third party liability claimsettlement entered into," and for judgment in the amount ofinterest that accrued on each settlement.⁽²⁾

On April 25, 2001, defendant moved to dismiss the complaintpursuant to sections 2-615 and 2-619 of the Illinois Code ofCivil Procedure (the Code)(735 ILCS 5/2-615, 2-619 (West 2000)). With respect to count I, AIG argued plaintiff could not state aclaim under the Interest Act because plaintiff's release imposesno interest obligation on the releasees nor did the settlingparties otherwise agree that interest was payable on thesettlement amount. With respect to count II, AIG argued Illinoisdoes not allow recovery on an implied contract, i.e., an impliedcontract to pay interest, when an express contract, i.e., theOctober 13, 2001 settlement agreement, exists between theparties.

In the alternative, AIG argued that plaintiff's claims werebarred by the release executed by plaintiff against Glen Oaks andits insurers. In the further alternative, AIG argued thatplaintiff named the wrong entity as defendant.

After a hearing on AIG's combined motion, the trial courtgranted the motion "on all grounds *** recited" and dismissedplaintiff's complaint with prejudice. Plaintiff now appeals.

II. ANALYSIS

A. Standard of Review 

A motion to dismiss under section 2-615(a) of the Code (735ILCS 5/2-615(a) (West 2000)) tests the legal sufficiency of theplaintiff's claim, while a motion to dismiss under section2-619(a) (735 ILCS 5/2-619(a) (West 2000)) admits the legalsufficiency of the plaintiff's claim, but asserts certain defectsor defenses outside the pleading that defeat the claim. SeeProvenzale v. Forister, 318 Ill. App. 3d 869, 878, 743 N.E.2d 676(2001); Joseph v. Chicago Transit Authority, 306 Ill. App. 3d927, 930, 715 N.E.2d 733 (1999). Under either section, ourstandard of review is de novo. See Kedzie & 103rd CurrencyExchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732(1993).

B. Sufficiency of Complaint Under 2-615 of the Code

A section 2-615 motion should be granted only in thosesituations where the allegations of the complaint, viewed in alight most favorable to the plaintiff, are insufficient to statea cause of action upon which relief can be granted. La SalleNational Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 790,758 N.E.2d 382 (2001). In considering the trial court'sjudgment, this court accepts all well-pled facts and thereasonable inferences to be drawn therefrom as true. Bryson v.News America Publications, Inc., 174 Ill. 2d 77, 86-87, 672N.E.2d 1207 (1996). A cause of action will not be dismissed onthe pleadings unless it is apparent that no set of facts can beproved which will entitle the plaintiff to recover. Bryson, 174Ill. 2d at 86-87.

1. Count I: Illinois Interest Act

Plaintiff first argues that the trial court erred indismissing count I of her complaint, which seeks an award ofprejudgment interest under section 2 of the Interest Act. 815ILCS 205/2 (West 2000).

Section 2 provides:

"Creditors shall be allowed to receiveat the rate of five (5) per centum per annumfor all moneys after they become due on anybond, bill, promissory note, or otherinstrument of writing ***." 815 ILCS 205/2(West 2000).

Plaintiff's claim under this section is premised upon herargument that the release she signed is an "instrument ofwriting."

The "instrument of writing" provision of the Interest Actincorporates two requirements into a claim for interest basedupon a written instrument. First, the written instrument mustestablish a debtor/creditor relationship. See Mutual ServiceCasualty Insurance Co. v. Elizabeth State Bank, 265 F.3d 601, 628(7^th Cir. 2001). Second, the written instrument must contain aspecific due date. See Reserve Insurance Co. v. GeneralInsurance Co. of America, 77 Ill. App. 3d 272, 275-76, 395 N.E.2d933 (1979)(and cases cited therein). The release herein does notdo either.

First, contrary to plaintiff's contention, the release doesnot establish a debtor/creditor relationship because here theunderlying obligation to pay the settlement proceeds does notarise by virtue of the release; rather, it arises by virtue ofthe October 13, 2000, oral settlement agreement. A review of therelease shows that it does not impose an obligation on AIG or anyother party to pay. The recitals in the release concerning thesettlement amount merely acknowledge the consideration given bythe defendants in the negligence action pursuant to the oralsettlement agreement. Thus, because the release does not createthe debtor/creditor relationship, it does not qualify as aninstrument of writing under section 2 of the Interest Act.

Second, even if we were to agree with plaintiff's argumentthat a debtor/creditor relationship was established by therelease, the release is still insufficient to support plaintiff'sclaim for interest because it does not bear either a specific oran inherent date by which the indebtedness created comes due. Wereject plaintiff's argument that by the subject matter of theunderlying obligation, i.e., the settlement of a personal injurycase, one can infer that payment would be made at the time thereleases are executed, and if an agreement was made to acceptpayment in two installments, the first installment would be thedate the releases were executed and returned to defendant and thesecond installment no more than 30 days thereafter. Plaintiffcites no support for this interpretation and it is speculative atbest.

Accordingly, we hold that the release is not an instrumentof writing under section 2 of the Interest Act and, therefore,plaintiff cannot state a cause of action for interest thereunder.2. Count II: Unjust Enrichment

Plaintiff's next argument on appeal is that the trial courterred in dismissing with prejudice count II of her complaintalleging unjust enrichment.

Our supreme court has held that to "state a cause of actionbased on a theory of unjust enrichment, a plaintiff must allegethat the defendant has unjustly retained a benefit to theplaintiff's detriment, and that defendant's retention of thebenefit violates the fundamental principles of justice, equity,and good conscience." HPI Health Care Services, Inc. v. Mt.Vernon Hospital, Inc., 131 Ill. 2d 145, 160, 545 N.E.2d 672(1989).

Count II of plaintiff's complaint alleges the following:

"14. Plaintiff, as the duly-appointedGuardian of the person of Tiffany Adams,brought suit against Glen Oaks Nursing Home,seeking to recover monetary damages for anassault committed upon plaintiff's ward whowas a patient at Glen Oaks. At the time ofthe occurrence, Glen Oaks was insured for itsgeneral liability by either AIG or one of itsmember companies who undertook to defend thesuit.

15. That on October 13, 2000, in CookCounty, Illinois, AIG, as the insurer of GlenOaks, and plaintiff agreed to settleplaintiff's claim for $250,000 to be paid intwo equal installments payable in October andNovember 2000. Plaintiff did not agree towaive pre-judgment interest on the principalamount of the settlement.

16. That on October 27, 2000, theplaintiff forwarded to defendant AIG throughits attorney duly-executed Releases releasingGlen Oaks from its liability arising out ofthe said occurrence, together with a demandfor payment (Exhibit 1).

17. That thereafter defendant,notwithstanding being in possession of thedocuments necessary to release its insuredfrom any and all liability arising out of theunderlying occurrence, retained thesettlement proceeds which plaintiff wasentitled to beyond the time agreed to as partof the Settlement Agreement, usingplaintiff's funds for its own purposes, thusbecoming unjustly enriched at plaintiff'sexpense against the fundamental principles ofjustice, equity, and good conscience."

As noted by AIG, an action for unjust enrichment that seeksimposition of an implied contract, here a contract to payinterest, cannot be maintained where an express contract governsthe parties. See B&B Land Acquisition, Inc. v. Mandell, 305 Ill.App. 3d 1068, 714 N.E.2d 58 (1999). We disagree with plaintiff'sargument that the subject matter of the parties' agreement, i.e.,the settlement of the underlying negligence claim, is differentfrom the subject matter of the implied contract she seeks to haveimposed, i.e., the payment of interest resulting from AIG'sfailure to pay plaintiff the settlement proceeds when due. Theunjust enrichment claim clearly arises out of the settlementagreement that governs the payment of the settlement proceeds.

Accordingly, we find that the trial court properly dismissedcount II of plaintiff's complaint alleging unjust enrichment.

Based on the foregoing, we hereby affirm the trial court'sdismissal with prejudice of plaintiff's complaint pursuant tosection 2-615 of the Code for failure to state a claim undereither section 2 of the Interest Act or based upon a theory ofunjust enrichment.

C. Sufficiency of Complaint under Section 2-619

Section 2-619(a)(9) allows for dismissal of a cause ofaction when "the claim asserted against defendant is barred byother affirmative matter avoiding the legal effect of ordefeating the claim." 735 ILCS 5/2- 619(a)(9) (West 2000). Theterm "affirmative matter" as used in section 2-619(a)(9) has beendefined as "a type of defense that either negates an allegedcause of action completely or refutes crucial conclusions of lawor conclusions of material fact unsupported by allegations ofspecific fact contained in or inferred from the complaint." Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699,703, 501 N.E.2d 156 (1986). 

1. The Release as a Bar to Plaintiff's Action

Plaintiff argues the trial court erred in finding therelease bars this action. The rules of construction applicableto releases are well established:

"A release is a contract whereby a partyabandons a claim to the person against whomthe claim exists. [Citation.] Accordingly,the interpretation of a release is governedby contract law. [Citation.] Thus, therights of the parties are limited to theterms expressed in the agreement and arelease will not be construed to releaseclaims not within the contemplation of theparties. [Citation.] The intention of theparties controls the scope and effect of therelease, and this intent is discerned fromthe release's express language as well as thecircumstances surrounding the agreement.[Citation.] Where the terms of the releaseare clear and explicit, the court mustenforce the release as written. [Citation.]" Loberg v. Hallwood Realty Partners, L.P., 323Ill. App. 3d 936. 941, 753 N.E.2d 1020.(2001).

The release at issue releases "any and all claims *** whichADAMS may have ever had or can, shall or may have against any ofthe Releasees, upon and by reason of the care and treatmentrendered to TIFFANY ADAMS from October 1994 through and includingFebruary 1995."

Plaintiff argues that because the release limits its scopeto claims arising "upon and by reason of" the underlyingoccurrence, it cannot be construed to include plaintiff's claimfor prejudgment interest. We disagree. Plaintiff's interestclaim exists solely "by reason of" her negligence claim. Indeed,but for the negligence claim, there would be no settlement and noclaim for interest. Moreover, the release indicates theintention of the parties to avoid future litigation. It states"this settlement is intended merely to settle and compromise adisputed claim and avoid pending and further litigation." (Emphasis added.) Further, it states it is a "full release ofall matters, past, present and future, known or unknown, andwithout limitation." (Emphasis added.)

Accordingly, we hold that the plaintiff's claims are barredby the release and the court properly dismissed with prejudiceplaintiff's complaint pursuant to section 2-619(a) of the Code.

2. Whether AIG is a Proper Defendant

Finally, plaintiff asserts that the trial court erred indismissing the action based on AIG not being a proper defendant. Because our findings in section B and section C1 above aredispositive, we need not address whether AIG is a proper party.

III. CONCLUSION

Accordingly, for the aforementioned reasons, we herebyaffirm the trial court's order dismissing plaintiff's complaintwith prejudice.

Affirmed.

QUINN and REID, JJ., concur.

1. In an affidavit attached to its motion to dismiss, AIGavers that Glen Oaks maintained a liability insurance policyissued by American International Specialty Lines InsuranceCompany which responded to the tort claims. According to AIG,all of the shares of AISLIC were owned by National Union FireInsurance Company of Pittsburgh, The Insurance Company of theState of Pennsylvania, and Birmingham Fire Insurance Company ofPennsylvania, which are each wholly-owned subsidiaries of AIG. AIG further averred that it is not an insurance company, it doesnot write or issue insurance policies, and it does not control ormanage AISLIC.

2. Plaintiff's motion for class certification was filed onMarch 13, 2001. On March 26, 2001, the trial court stayed themotion pending resolution of defendant's motion to dismiss.