concurring in part and dissenting in part:
I concur with the majority in its analysis and conclusion regarding the denial of the defendant’s motion for judgment n.o.v. However, I cannot agree with the majority regarding the agreement entered into between the plaintiff and Allen Miller, Miller Farms, Edward Kalvelage and Country Mutual Insurance Co. I believe the agreement is a hybrid agreement, and, therefore, the principles applicable to both types of agreements must be applied accordingly. As a result, I would reverse and remand the case for a new trial on damages only.
Pursuant to the agreement, Country Mutual paid the plaintiff *266,000 in exchange for a dismissal of the plaintiff’s action against the defendants that were insured by Country Mutual; these defendants included Miller, Miller Farms and Kalvelage. The agreement provides that the *266,000 is not to be paid back to Country Mutual unless the plaintiff receives a judgment against Avco in excess of *500,000; the plaintiff is to pay back Country Mutual only 20% of the amount recovered in excess of *500,000. Plainly, by the express terms of the agreement, the *266,000 would not have to be paid back to Country Mutual under the circumstances of this case.
It is my belief that any amount of the *266,000 that the plaintiff does not have to pay back to Country Mutual should be deducted from any judgment against Avco, as would be done if the agreement was a pure covenant not to sue; any amount that the plaintiff has to pay back to Country Mutual should not be deducted from any judgment entered against Avco, as would be done if the agreement was a pure loan agreement. Using this rationale, if this case is not remanded for a new trial, the *266,000 should be deducted from the *492,000 judgment entered against Avco.
If the *266,000 is not deducted from the judgment against Avco, it will allow the plaintiff to recover more than what the jury determined is full compensation for his injury. The unwholesome effect of allowing the plaintiff in a personal injury action to be paid *266,000 more than the jury’s verdict is highly disturbing. Not only do I find it unwholesome and disquieting, but in addition, I know of no court that has heretofore held that a plaintiff in a personal injury action may be compensated for his injury over and above the amount of the jury’s verdict. If for no other reason, I would, therefore, require the *266,000 to be deducted from the judgment on the basis of public policy. See Rucker v. Norfolk & Western Ry. Co. (1978), 64 Ill. App. 3d 770, 792, 381 N.E.2d 715, 732, appeal granted (1979), 71 Ill. 2d 621.
The majority states that it does not believe that its conclusion results in a double recovery for the plaintiff. I disagree. To me the majority is clearly allowing the plaintiff a double recovery. A double recovery is inimical to the salutary principle rooted deeply in our law that for one injury but one satisfaction may be had; an injured party does not have a right to derive a profit from his injury. McClure v. Lence (1951), 345 Ill. App. 158, 164, 165, 102 N.E.2d 546, 549, aff'd after remand (1953), 349 Ill. App. 341, 110 N.E.2d 695.
The majority relies upon the case of Henson Robinson Co. v. Industrial Com. (1944), 386 Ill. 232, 53 N.E.2d 881. Henson merely involves the settlement of a personal injury action wherein the employer expressly agreed to waive its indemnification right under the Workmen’s Compensation Act; it does not involve joint tortfeasors responsible for a single injury as in the present case. In Henson, the court held that the employer was not entitled to a credit for the amount already paid to its injured employee by the personal injury defendant because, in the personal injury settlement, the employer had expressly waived its right to have the amount credited in the Workmen’s Compensation claim. Thus, Henson was decided solely on the basis of an express waiver agreement. The court did not discuss the question of a double recovery and the case has never been cited or relied upon for that proposition. In the present case, Avco was not part of the agreement between Country Mutual and the plaintiff; it did not agree to waive the right to have any amount already paid to the plaintiff deducted from the jury’s verdict. Clearly, the agreement between Country Mutual and plaintiff cannot be treated as if the agreement was between plaintiff and Avco, which is, in effect, what the majority is doing. Avco has the right to deduct from the judgment the amount plaintiff does not pay back to Country Mutual, irrespective of the agreement between Country Mutual and plaintiff. This is illustrated by the Restatement (Second) of Torts §885, Comment e (1979), wherein it is stated:
“Payments made by one of the tortfeasors on account of the tort either before or after judgment, diminish the claim of an injured person against all others responsible for the same harm. This is true although it was agreed between the payor and the injured person that the payment was to have no effect upon the claims against the other. If the payment is made as full satisfaction for a specified item of damage, the claim against the others is terminated with respect to that item. If it is agreed that the payment is to satisfy the payor’s proportion of the total claim, the claim against the others is diminished in that proportion, if this is greater than the amount paid; if the proportion is less than the amount paid, the claim against the others is diminished by the amount paid, irrespective of the agreement.” (Emphasis added.)
For these reasons, I do not believe Henson is applicable to this case.
The majority also relies upon Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382, but there is a crucial difference between Reese and the present case. In Reese, the court did not allow a personal injury plaintiff to recover more for his injury than the amount of the jury’s verdict. I, therefore, do not find Reese applicable to the present case, except for the fact that Reese allows the use of loan agreements for personal injury actions in Illinois. The use of loan agreements in personal injury actions, however, is not unlimited. As an example, in Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, the supreme court recently held that the use of loan agreements is proper only where judgment has not been reached. In Kerns, the supreme court held that the loan agreement which had been entered into after judgment was void and that the money that had been advanced to the plaintiff pursuant to the loan agreement acted as a partial satisfaction of the plaintiff’s judgment against another defendant.
In this case, the plaintiff contends that the *266,000 should be considered a loan, even though it is not to be paid back to Country Mutual, because the instrument is labeled a “Loan Agreement” and the language used in the context of the instrument refers to the *266,000 as a loan. I disagree. Although the words used in a written agreement should, of course, be considered in construing the instrument, it is well established that the legal effect to be given an instrument is not to be determined by the label which it bears or the technical terms it contains. (Urban Investment & Development Co. v. Maurice L. Rothschild & Co. (1975), 25 Ill. App. 3d 546, 551, 323 N.E.2d 588, 592; Bonde v. Weber (1955), 6 Ill. 2d 365, 377, 128 N.E.2d 883, 889.) Equally important, the parties to an agreement cannot expect its terms to be judicially enforced if the effect would be repugnant to public policy.
In determining the legal effect to be given the terms of a “Mary Carter” type agreement,1 I believe the underlying principle should be to allow the plaintiff only one full compensation for his injury. (See Reese v. Chicago, Burlington & Quincy R.R. Co. (1972), 5 Ill. App. 3d 450, 456-57, 283 N.E.2d 517, 521, aff'd (1973), 55 Ill. 2d 356, 303 N.E.2d 382; American State Bank v. County of Woodford (1978), 55 Ill. App. 3d 123, 135, 371 N.E.2d 232, 241.) The only way the agreement in this case can be construed to allow the plaintiff only one full compensation for his injury is to hold that any amount of the *266,000 that the plaintiff does not have to pay back to Country Mutual is to be deducted from any judgment against Avco; any amount that the plaintiff has to pay back to Country Mutual should not be deducted from any judgment against Avco. In my opinion, the agreement in this case should be given this effect.
The record reflects that both parties were represented by exceptionally able trial counsel. As one might expect, they attempted and did use the hybrid agreement to their respective advantage. Counsel for Avco alluded to the existence of the agreement during his cross-examination of Allen Miller. This was proper to show that the witness was possibly biased. (Kerns, 76 Ill. 2d 154, 169; cf. Casson v. Nash (1978), 74 Ill. 2d 164, 168-69, 384 N.E.2d 365, 366-67.) On redirect examination of Allen Miller, plaintiff’s counsel sought to tell the jury the full terms of the agreement. Plaintiff’s counsel then called as a witness, John P. Burke, counsel for Country Mutual, for the purpose of explaining and placing all the terms of the agreement before the jury. Burke testified that the plaintiff would have to repay the *266,000 only if the verdict exceeded *500,000, and only 20% in excess of *500,000 would be repaid. The procedure used by plaintiff’s counsel was proper because once the existence of a loan agreement is placed before the jury, then the full effect of the agreement must be given to the jury. This principle is illustrated by American State Bank, 55 Ill. App. 3d 123, 134-35, 371 N.E.2d 232, 240, wherein the court stated:
“Since Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382, the admissibility and use of loan agreements have not been open to serious questions. There appears to be no general consensus of the bar as to the wisdom as a trial tactic of either admission or use. However, once the decision to offer has been made, the moving party must take the bitter with the sweet as with any piece of evidence.
To allow only a portion of the agreement into evidence would be to permit the jury to speculate as to the reasons or circumstances for making and accepting the loan. Therefore, the entire agreement must be placed before the jury with an appropriate limiting instruction. This is the procedure dictated by Reese.
# # <*
The trial court was correct in ruling that the entire agreement, not just portions of it, must be introduced into evidence if anything concerning the agreement is to be submitted to the jury.” (Emphasis added.)
In the present case, both trial counsel took full forensic advantage of the existence of the hybrid loan agreement. But the jury was not fully informed of the effect of the agreement regarding the *266,000. Since the jury was advised that the plaintiff received *266,000 and it would have to be repaid only if he received a verdict in excess of *500,000, the jury should also have been informed that any amount of the *266,000 that the plaintiff did not have to pay back to Country Mutual would be deducted from the amount of any verdict against Avco.
Under the circumstances that occurred in the trial, the jury was left with the improper impression that if it returned a verdict for *492,000, the plaintiff would keep the *266,000 and receive an additional *492,000. This was error requiring a new trial since we should not speculate as to what the jury would have awarded the plaintiff if it was fully informed as to the effect of the agreement with regard to the *266,000. In this regard, it is worth noting that the jury, having heard repayment would be made under the agreement only in the event the verdict exceeded *500,000, returned a verdict for the plaintiff just under that repayment level.
The question remains as to whether the plaintiff should have a new trial on damages only or whether a new trial generally is required. In this regard, the error relating to the hybrid loan agreement would only have affected the jury’s award of damages. The error does not go to the question of liability and the record does not indicate that the verdict was compromised. Also, although the issue of liability was vigorously contested, the verdict on liability is amply supported by the evidence. Under the circumstances, a new trial on damages only is appropriate. (See Balestri v. Terminal Freight Cooperative Ass’n (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393.) In view of my conclusion, I do not address the other issues raised on appeal. Accordingly, I would affirm the judgment on the issue of liability and remand the case for a new trial on damages only.
Loan agreements in personal injury actions are commonly referred to as “Mary Carter” agreements, obtaining their name from Booth v. Mary Carter Paint Co. (Fla. 1967), 202. So. 2d 8. See generally Michael, “Mary Carter” Agreements in Illinois, 64 Ill. B. J. 514 (1976).