JUSTICE CHAPMAN delivered the opinion of the court:

This action was brought by a car's passenger, Jeremy Simpson, against the car's driver,Alan Reynolds, and another vehicle's driver, Russell Matthews, to recover damages forpersonal injuries resulting from a two-vehicle accident. Prior to the trial, Simpson enteredinto an agreement with Reynolds that he would not seek a recovery beyond Reynolds'insurance policy limits, in exchange for his remaining a party to the suit. Matthews filed amotion to dismiss Simpson's complaint against Reynolds and Reynolds' counterclaim againstMatthews, contending that as a result of the agreement, no justiciable matter existed betweenSimpson and Reynolds. The court dismissed both the claim against Reynolds and thecounterclaim against Matthews and made the express finding that there was no just reasonfor delaying the appeal. Simpson takes this appeal pursuant to Illinois Supreme Court Rule304(a) (155 Ill. 2d R. 304(a)).

We hold that the agreement was not void as contrary to public policy and left ajusticiable controversy between Simpson and Reynolds. We reverse and remand.

The plaintiff, Jeremy Simpson, was a passenger in a car driven by Alan Reynolds. Reynolds' car was struck by a truck driven by Russell Matthews. Simpson suffered serioushead injuries as a result of the accident, incurring more than $150,000 in medical bills. Simpson brought suit against both drivers. Reynolds sought contribution from Matthews. Discovery revealed that Reynolds was insured for $50,000, while Matthews was insured for$1 million. Reynolds orally tendered the $50,000 policy limits in full settlement of the claimagainst him. This offer was rejected by Simpson, and a subsequent agreement was enteredinto between Simpson and Reynolds, memorialized by letters dated October 20 and 25, 1999:

I want to write you this letter to confirm our informal discussion of October20th just prior to the discovery depositions of Dr. Meinert and Mr. Williamson inCarbondale, Illinois. Based on that conversation, it is my understanding that, whileyou are not formally accepting the settlement offer of my client's policy limits less themedical pay, you have agreed to accept that amount of money in full compensationof any settlement or judgment that might be rendered against my client, AlanReynolds. It is my further understanding that you want to keep Mr. Reynolds in thiscase so that the co[]defendant, Russell Matthews, will not have an empty chair topoint to. In return for that assurance, I will be less active in the defense of this case,particularly the medical issues, and still active in my pursuit of Russell Matthews asthe sole or at least primary tortfeasor in connection with this case. Please provide mewith some type of written acknowledgment along these lines so I will not feelcompelled to become active at the upcoming health care evidence depositions that youhave scheduled in this case. Thank you.

***

BY Roy L. Carnine"

"October 25, 1999

Your October 20, 1999[,] letter fairly sets out our conversation. However, Iwant to be clear that in the Simpsons' [sic] interest, although we will not pursue Mr.Reynolds personally for damages, no 'settlement' has been accepted. Please call if youhave questions.

Yours truly,

Patricia Littleton

***

cc: Daniel R. Price" (Emphasis in original.)

Having been made aware of this agreement shortly after its inception, Matthews' counselfiled a motion to dismiss Simpson's complaint against Reynolds, pursuant to section 2-619of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)), and a motion to dismissReynolds' counterclaim for contribution against Matthews, contending that the agreement leftno justiciable controversy between the two parties. The court granted Matthews' motion. Simpson appeals.

Simpson argues on appeal both that the agreement is not a settlement and that theagreement is not against public policy.

While appellant Simpson and appellee Reynolds take pains to distinguish thisagreement from a settlement agreement, we must look beyond labels to consider the legaleffect of the agreement. In addressing a similar query, the Pennsylvania Supreme Courteloquently opined: "This Agreement, when viewed in its entirety, can hardly be described asa conclusive resolution or final disposition of the disputed matters between the plaintiffs andthe original defendants. Rather, it is merely the first act in a two-act play, and mattersbetween them will not be conclusively resolved or finally disposed until the final curtain hascome down." Hatfield v. Continental Imports, Inc., 530 Pa. 551, 562, 610 A.2d 446, 451(1992). There can be no question but that the agreement's purpose was to effect thesettlement of some issues before the court, albeit conditional upon the outcome of the trial. Whether we call this an agreement or a settlement (as do the majority of the courts), theimportant questions are whether the agreement's effect controverts the integrity of the judicialprocess and whether the court was left with any justiciable issues.

We review de novo the court's granting of a section 2-619 motion to dismiss. Johnsonv. Du Page Airport Authority, 268 Ill. App. 3d 409, 414, 644 N.E.2d 802, 805 (1994).

Illinois courts, as do the courts of many other jurisdictions, approve of a number oftypes of trial settlements in multiparty litigation. If the settlement does not distort theadversarial process, the courts generally support these settlements as a matter of a publicpolicy favoring settlement. See P. Shockley, The Use of Mary Carter Agreements in Illinois,18 S. Ill. U. L.J. 223, 241 (1993). A "Mary Carter agreement" is one kind of a trialsettlement in multiparty litigation, in which fewer than all defendants settle. The termderives from a Florida case, Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. Dist. Ct.App. 1967). In Booth, the husband of a woman killed in an automobile accident filed suitagainst four defendants. A settlement agreement reached with two of the defendantsprovided that the two settling defendants would not be liable above $12,500 and that if theverdict exceeded $37,500, the two settling defendants would owe nothing. The agreementalso stipulated that both settling defendants would remain in the case and that the agreementwould remain secret from the court and the other defendants. The agreement was upheld onappeal. Booth, 202 So. 2d 8.

While all jurisdictions have concerns about how these types of agreements affect theadversarial process, only a few jurisdictions outright prohibit Mary Carter agreements,including Texas (Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992)), Florida (Dosdourian v.Carsten, 624 So. 2d 241 (Fla. 1993)), Nevada (Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347(1971)), Wisconsin (Trampe v. Wisconsin Telephone Co., 214 Wis. 210, 252 N.W. 675(1934)), and Oklahoma (Cox v. Kelsey-Hayes Co., 594 P.2d 354 (Okla. 1978)).

Other jurisdictions allow Mary Carter agreements but place safeguards on their use,thereby balancing the public policy promoting settlements with the potential for a distortionof the adversarial process. See City of Tucson v. Gallagher, 108 Ariz. 140, 493 P.2d 1197(1972) (the Arizona Supreme Court upheld the use of Mary Carter-type agreements, called"Gallagher agreements"); Carter v. Tom's Truck Repair, Inc., 857 S.W.2d 172 (Mo. 1993)(the Missouri Supreme Court upheld a Mary Carter agreement, finding that a limiteddisclosure of the agreement could prevent prejudice to the nonsettling parties); Bohna v.Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745 (Alaska 1992) (the AlaskaSupreme Court upheld the use of Mary Carter-type agreements, called "loan-receiptagreements," finding that the disclosure of the realignment of interests as a result of thesettlement allowed the jury to evaluate the credibility of witnesses); Hatfield v. ContinentalImports, Inc., 530 Pa. 551, 610 A.2d 446 (1992) (the Pennsylvania Supreme Court uphelda Mary Carter agreement, holding that the jury must be advised of the settlement to the extentthat a potential for bias exists); Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985) (theKansas Supreme Court adopted a rule that allowed Mary Carter agreements and othersettlement agreements between a plaintiff and one or more but not all the defendants, ifdisclosed to the court and the nonsettling parties and with limited disclosure to the jury,called "the Ratterree rule").

Illinois also has shown concern in preserving the adversarial relationship between theparties when faced with Mary Carter-type settlements. The first Illinois Supreme Court caseto address this concern-Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill. 2d 356, 303N.E.2d 382 (1973)-was a wrongful-death case involving a loan-receipt agreement with oneof the two defendants. The plaintiff received a loan from the settling defendant, which wasto be repaid from any amounts collected from the nonsettling defendant. The court upheldthe validity of the agreement, concluding that any undermining of the adversarial nature andintegrity of the proceedings could be corrected by permitting the cross-examination ofwitnesses regarding their knowledge of the agreement and thereby exposing any resultingbias. Reese, 55 Ill. 2d at 364, 303 N.E.2d at 387.

For some time, Illinois continued to tolerate Mary Carter agreements by requiringadditional safeguards. See Gatto v. Walgreen Drug Co., 61 Ill. 2d 513, 337 N.E.2d 23 (1975)(the requirement for the disclosure of the agreement was absolute); see also Kerns v. Engelke,76 Ill. 2d 154, 170, 390 N.E.2d 859, 867 (1979) (the agreement must be entered into beforea judgment is reached). However, the Illinois Supreme Court decided in In re Guardianshipof Babb, 162 Ill. 2d 153, 642 N.E.2d 1195 (1994), that it would no longer tolerate suchsettlements. In re Guardianship of Babb involved a loan-receipt agreement in which theplaintiff was to receive $400,000 from the settling defendant. The agreement, however,further provided that if the plaintiff successfully pursued a claim against a third party, hewould pay back to the settling defendant $350,000, keeping only $50,000. The courtconcluded that loan-receipt agreements are not good-faith settlements because they violatethe Joint Tortfeasor Contribution Act (740 ILCS 100/2 (West 2000)), by allowing the settlingdefendant to indirectly receive money from the nonsettling defendant. In re Guardianshipof Babb, 162 Ill. 2d at 172, 642 N.E.2d at 1204. The danger the courts have seen in MaryCarter agreements is clear: they give one defendant a motive to help the plaintiff obtain ajudgment against another defendant that is larger than the plaintiff might otherwise haveobtained.

Here, Simpson argues that the agreement contains none of the elements of a MaryCarter agreement, while Matthews maintains that it is akin to a Mary Carter agreementbecause it distorts the adversarial process.

The elements of a Mary Carter agreement, as stated by this court, are:

"(1) the liability of the settling defendant is limited and the plaintiff is guaranteed aminimum recovery; (2) the settling defendant remains a party to the pending actionwithout disclosing the full agreement to the nonsettling defendants and/or the judgeand jury; and (3) if judgment against the nonsettling defendant is for more than theamount of settlement, any money collected will first offset the settlement so that thesettling defendant may ultimately pay nothing." Banovz v. Rantanen, 271 Ill. App. 3d910, 913-14, 649 N.E.2d 977, 980-81 (1995).

While there are a variety of names for Mary Carter-type agreements, as well as variations interms, this court went on to state as follows: "[T]hey all give the settling defendant someinterest in increasing the liability of the nonsettling defendant and a financial incentive tobolster the plaintiff's case. The agreements effect a change in the relationship of thecodefendants and create a tremendous incentive for the settling defendant to ensure that theplaintiff succeeds in obtaining a sizable recovery, thus motivating the defendant to assistgreatly in the plaintiff's presentation of the case." Banovz, 271 Ill. App. 3d at 915, 649N.E.2d at 981.

This incentive for the settling defendant to help the plaintiff, which is often quotedas the essential element of Mary Carter agreements, is not present in the agreement inquestion. Additionally, the plaintiff never attempted to keep the agreement secret from thenonsettling defendant or the court, nor was there any guaranteed minimum recovery to theplaintiff. Cf. Banovz, 271 Ill. App. 3d at 913-14, 649 N.E.2d at 980-81. Consequently, wefind that the agreement here was not a Mary Carter-type agreement.

Simpson and Reynolds next argue that the agreement does not affect contributionbetween the tortfeasors. Matthews counters that the agreement circumvents the JointTortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2000))because it motivates the settling parties to attempt to increase both his liability percentageand the judgment against him. We disagree with both arguments.

Despite Simpson's and Reynolds' adamancy that the agreement does not constitute asettlement, it clearly contains a promise that Simpson will not enforce a judgment againstReynolds in an amount in excess of $50,000-"you have agreed to accept that amount ofmoney [policy limits] in full compensation of any settlement or judgment that might berendered against my client, Alan Reynolds." We find that the language of the agreementleaves little doubt that the agreement is a covenant not to enforce a judgment, thereby fallingwithin section 2 of the Contribution Act (740 ILCS 100/2 (West 2000)). The ContributionAct provides that all rights of contribution between settling and nonsettling tortfeasors isextinguished when a release or covenant not to sue or to enforce a judgment is given in goodfaith. 740 ILCS 100/2 (West 2000). Consequently, neither party would have a claim forcontribution following a finding of a good-faith settlement. See Banovz, 271 Ill. App. 3d at919, 649 N.E.2d at 984.

Additionally, we do not find that the agreement violates the terms of the ContributionAct. Unlike the agreement in In re Guardianship of Babb, the instant agreement does notcircumvent the Contribution Act by benefiting the settling defendant monetarily at theexpense of the nonsettling defendant. In re Guardianship of Babb, 162 Ill. 2d at 172, 642N.E.2d at 1204. Nor does the agreement deprive the nonsettling defendant of his statutoryright to a setoff. Cf. In re Guardianship of Babb, 162 Ill. 2d at 172-73, 642 N.E.2d at 1204. Under the agreement, Reynolds merely is responsible for paying to Simpson any judgmententered against him, up to $50,000, the amount of his insurance policy limits. He alsoreceives the resulting benefit of extinguishing any contribution claim against him. Matthewshas no legal basis to complain of this benefit. "It is not a lack of good faith for a defendantto settle with the plaintiff even though one purpose may be to purchase protection against aclaim for contribution." McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 47,607 N.E.2d 1271, 1299 (1992).

Having decided that the agreement is not a Mary Carter agreement and does notviolate the Contribution Act, we still must decide whether the agreement leaves justiciableissues before the court. Simpson contends that this agreement does not dispose of any of thejusticiable issues, amounting to good lawyering. Matthews argues that the agreementrealigns the parties and deprives him of a fair trial, amounting to a sham. After examiningthe agreement and the facts of the case, we are not impressed with Matthews' complaints.

Matthews relies solely on Schell v. Albrecht, 65 Ill. App. 3d 989, 383 N.E.2d 15(1978), in support of his contention that this agreement deprived him of a fair trial,warranting the dismissal of Reynolds. The plaintiff in Schell was injured in a two-carcollision. The plaintiff sued the driver of the car in which she was a passenger and both thedriver and the owner of the other automobile involved in the accident. During the trial, theplaintiff entered into an oral secret agreement with two of the three defendants. Theagreement provided as follows: (1) for $2,500, the plaintiff would not enforce any judgmentagainst the settling defendants as long as a judgment was also rendered against thenonsettling defendant, and (2) the settling defendants would pay the $2,500 regardless ofwhether all of the defendants were found not liable, but (3) if a verdict was returned againstone or both of the settling defendants and not the nonsettling defendant, the agreement wouldbe null. Schell, 65 Ill. App. 3d at 991, 383 N.E.2d at 17. A verdict was returned for $40,000against all the defendants and against one of the settling defendants on the nonsettlingdefendant's cross-claim. Schell, 65 Ill. App. 3d at 991, 383 N.E.2d at 17. When thenonsettling defendant found out about the agreement, he moved for a new trial, as did thesettling defendant on the cross-claim verdict. The court granted both motions because of thesecret nature of the agreement. Schell, 65 Ill. App. 3d at 991, 383 N.E.2d at 17.

The appellate court affirmed a new trial on the plaintiff's complaint against all threedefendants, but it denied a new trial for the settling defendant's cross-claim. The court foundthat the agreement left no justiciable issue before the court because the settling defendantswere obligated to pay an amount of money regardless of whether they were found liable. Thecourt further found that the nonsettling defendant was prejudiced by the secrecy of theagreement, and the court emphasized a party's right to be aware of the potential for witnessbias resulting from the agreement. The court stated: "We do not quarrel with the contentionthat trial tactics do not ordinarily present the basis for a new trial. However, if the motivefor the tactical decision stems from a sub rosa agreement, then all parties must be apprisedof the understanding to allow them to evaluate the understanding's effect on the credibilityof witnesses." Schell, 65 Ill. App. 3d at 994, 383 N.E.2d at 19.

The factual distinctions between Schell and the instant case cannot be overlooked, andthey render Schell of little value in deciding this case. First, the Schell agreement was secret,unlike the Simpson agreement, which gave the nonsettling defendant the opportunity to showany witness bias. Second, the Schell agreement was for a sum certain that was to be paid tothe plaintiff regardless of whether the settling defendants were found liable, unlike theSimpson agreement, which left liability and damages in controversy but limited recoveryagainst the settling defendant for any verdict greater than $50,000. Third, the Schell court'sremedy was a new trial, unlike the instant case where the remedy was a dismissal.

It is also helpful to look at the factual background of the instant case to betterunderstand the motives of both Reynolds and Simpson regarding the agreement. Given thefacts of this case-i.e., the plaintiff was a passenger in a car driven by one defendant whenthat car collided with a car driven by another defendant, which caused the plaintiff seriousinjuries (medical bills greater than $150,000)-one cannot ignore the likelihood that one orboth of the defendants would be found liable, and for a substantial amount of money. Reynolds' counsel's motive to offer Simpson the policy limits was twofold: (1) to protect theinsured from a potential verdict above the policy limits and (2) to protect the insurer from abad-faith claim in a case with the potential for a large verdict and little likelihood of beinglost by the plaintiff. Simpson's counsel's explicit motive for refusing the policy tender wasto avoid the defense trial strategy known as the "empty chair." The "empty chair" strategyis well known to trial lawyers as a defendant's dream and a plaintiff's nightmare-since itallows the defendant to point the finger at an empty chair, where the settled defendantfiguratively sits, and to argue that the settling defendant was the sole proximate cause of theinjury (in essence, arguing that the plaintiff sued the wrong party). There is nothinginherently improper in the use of this strategy, nor is there anything improper in the attemptto avoid the strategy.

Matthews contends that the agreement implies that Reynolds would not defendhimself and would become a "member of plaintiff's camp," departing from the "expected roleof a fellow[]defendant." It is axiomatic that good lawyering involves maximizing a party'sclaim within the bounds of ethics and fair play. However, the right to a fair trial does notmean an ideal trial or a trial under circumstances most advantageous to either party. In a casesuch as this one, the realistic focus for both defendants is not as much on defeating the claim(which they have little likelihood of accomplishing) but, rather, on attempting to place theblame on each other. Reynolds acknowledges as much when he agrees to "be less active inthe defense of this case, particularly the medical issues, and still active in my pursuit ofRussell Matthews as the sole or at least primary tortfeasor in connection with this case."

In this context, Matthews' claim that he has been deprived of an expected unifieddefense holds little water. Here, the antagonistic relationship of the two defendants wasalready established when Reynolds counterclaimed against Matthews for contribution. SeeTom's Truck Repair, Inc., 857 S.W.2d at 177. And even if that were not the case, theexpectation of a unified defense does not mean an entitlement to one. In Gallagher, a similarclaim was made-that an agreement motivating the settling defendant to limit its questions ondirect examination and to forego a cross-examination of the plaintiff and two of the plaintiff'smedical witnesses deprived the nonsettling defendant of the right to a fair trial. The claimprompted the Arizona Supreme Court to respond that it knew "of no rule of law requiringcross-examination" and to add that nothing prevented the nonsettling defendant from cross-examining at length. Gallagher, 108 Ariz. at 143, 493 P.2d at 1200.

In the instant case, nothing has deprived Matthews of the ability to mount a vigorousdefense through the direct examination or the cross-examination of witnesses. And despitethe agreement, Reynolds still maintains an interest in minimizing any finding of liability, soas to reduce the potential for damages against him from a maximum of $50,000 to zero. Andwhile Reynolds maintains an interest in placing blame on Matthews for causing the accident,he has no additional incentive to increase the amount of any verdict against Matthews,because that would not decrease the amount of any money he may owe to Simpson. Bothdefendants still have an interest in minimizing the amount of damages and a finding of noliability. In sum, we do not believe that the agreement gave Reynolds an interest in a verdictadverse to Matthews other than the interest that already existed. Accordingly, we believe thatall issues in controversy remain before the court.

Finally, we believe that any potential for bias that may arise during the trial can beeffectively dealt with by the trial judge through the disclosure of the agreement. Because wefind that this is not a Mary Carter agreement, the issue of disclosure does not revolve aroundthat status. While this court in Banovz held that a disclosure was not required when theagreement in question was determined not to be a Mary Carter agreement (Banovz, 271 Ill.App. 3d 910, 649 N.E.2d 977), we do not find that Banovz would preclude the disclosure ofthe terms of an agreement in a case such as this. The often-quoted phrase from a MissouriSupreme Court case upholding a Mary Carter agreement-"the surest cure for the ill effectsof a Mary Carter agreement is disclosure of its terms to the court and to the jury" (Tom'sTruck Repair, Inc., 857 S.W.2d at 178)-reflects the courts' policy to encourage settlementswhile at the same time protect the nonsettling litigant's right to a fair trial. Kansas appliesthe disclosure remedy to all settlement agreements reached between one or more but not allthe defendants (called "the Ratterree rule"). Bartlett, 238 Kan. 11, 707 P.2d 1063.

We note here that Simpson urges the disclosure of the agreement to the jury and thatMatthews opposes a disclosure. While Matthews acknowledges that a cure for what hecontends is a realignment of the parties would be a disclosure, he does not like the medicineoffered, claiming that a disclosure would interject the issue of insurance into the case,thereby compounding the prejudice. We find Matthews' argument to be without merit.

The trial court can adequately safeguard Matthews' interest when it determines howto advise the jury that the potential for bias exists. The Pennsylvania Supreme Court, whenfaced with this issue in a case involving a Mary Carter agreement, stated: "This is not to saythat agreements such as these should be admitted into evidence in toto. The court, as withall proffered evidence, should review the agreement, balance the relevancy of it against thepotential prejudice, and, exercising judicial discretion, admit or exclude as much as it deemsappropriate. However, where an agreement clearly allies two or more parties against another,such that a clear potential for bias exists which would not otherwise be apparent to thefactfinder, that part of the agreement, or at least the existence of the reason for the potentialbias, must be conveyed to the factfinder." Hatfield, 530 Pa. at 563, 610 A.2d at 452. Here,there would be no reason to advise the jury regarding the issue of insurance. The MissouriSupreme Court in Tom's Truck Repair, Inc., cautioned that the disclosure of the terms ofthese types of agreements should be limited to exclude prejudicial information such as theamounts of settlement and insurance. Tom's Truck Repair, Inc., 857 S.W.2d at 178.

The trial court is clearly in the best position to make the determination regarding theneed to disclose the terms of the instant agreement. See Doty v. Bishara, 123 Idaho 329, 335,848 P.2d 387, 393 (1992). If such a disclosure becomes necessary, the court can then tailorthe disclosure to avoid the mention of prejudicial material and at the same time allow the juryto form its own opinion about any effect the agreement may have on the credibility of thewitnesses.

For the foregoing reasons, we reverse the circuit court's order of dismissal and remandthe cause for further proceedings.

Reversed; cause remanded.

WELCH and DONOVAN, JJ., concur.

Opinion Filed: May 5, 2003

Justices: Honorable Melissa A. Chapman, J.

Honorable Thomas M. Welch, J., and

Honorable James K. Donovan, J.,

Concur

Attorney Stephen W. Stone, Howerton, Dorris, Stone & Phelps, 300 West Main Street,

for Marion, IL 62959

Appellant

Attorneys Daniel R. Price, Wham & Wham Attorneys, 212 East Broadway, P.O. Box 549,

for Centralia, IL 62801 (for Russell Matthews)

Appellees

Jerome E. McDonald, Campbell, Black, Carnine, Hedin, Ballard & McDonald, P.C.,

108 South 9th Street, P.O. Drawer C, Mt. Vernon, IL 62864 (for Alan Reynolds)