Can a Settlement for a ''Small Amount'' Establish Bad Faith ?
In Dubina v. Mesirow Realty Development, Inc., 197 Ill. 2d 185, 191, 756 N.E.2d 836, 840, 258 Ill. Dec. 562 (2001), the crucial factor was that the portion of the settlement that allocated $ 4.5 million as payment for plaintiffs assigning their claims against the nonsettling defendants to the settling defendants effectively deprived the nonsettling defendants of their statutory right to a setoff. Dubina, 197 Ill. 2d at 195, 756 N.E.2d at 842.
The court in Dubina regarded this settlement as collusive because the assignments allowed the settling defendants, "in the guise of plaintiffs, to indirectly recover contribution from the nonsettling defendant." Dubina, 197 Ill. 2d at 196, 756 N.E.2d at 842.
The small amount of the settlement alone will not establish bad faith. Warsing v. Material Handling Services, Inc., 271 Ill. App. 3d 556, 561, 648 N.E.2d 1126, 1130, 208 Ill. Dec. 204 (1995).
The court must consider all of the surrounding circumstances, not just the amount of the settlement. Dubina, 197 Ill. 2d at 191, 756 N.E.2d at 840.