Evans v. Doherty Construction, Inc.

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 1st District Appellate » 2008 » Evans v. Doherty Construction, Inc.

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-1455 Rel

Case Date: 04/25/2008

Preview:FIFTH DIVISION April 25, 2008 No. 1-07-1455

MICHAEL EVANS,

) ) Plaintiff-Appellee, ) ) v. ) ) DOHERTY CONSTRUCTION, INC., ) ROUGHNECK CONCRETE DRILLING AND ) SAWING COMPANY, McDONOUGH ) MECHANICAL SERVICES, INC., WOLF ) MECHANICAL, and EVERGREEN SCHOOL, ) ) Defendants-Appellees ) __________________________________________) ) (Doherty Construction, Inc., Roughneck Concrete ) Drilling and Sawing Company, McDonough ) Mechanical Services, Inc., and Wolf Mechanical, ) ) Third-Party Plaintiffs-Appellees; ) ) Atash Fire and Safety Equipment Company, ) ) Third-Party Defendant-Appellant). )

Appeal from the Circuit Court of Cook County No. 04 L 7795 Honorable Donald J. O'Brien, Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court: The appeal in this workers' compensation case concerns the circuit court's orders directing third-party defendant Atash Fire & Safety Equipment Co. (Atash) to pay statutory attorney fees and expenses to plaintiff Michael Evans after Atash had sold its workers' compensation lien to defendants Doherty Construction, Inc. (Doherty), Roughneck Concrete Drilling and Sawing Co. (Roughneck), McDonough Mechanical Services, Inc. (McDonough), and Wolf Mechanical

1-07-1455 (Wolf). On appeal, Atash contends the court improperly ordered the payment because it sold the lien prior to the settlement with plaintiff and because the proceeds from the sale did not constitute "reimbursement" under the pertinent statutory provision. Defendants Roughneck, McDonough, and Wolf have filed a joint response; Doherty has responded separately and has adopted the joint response of the other defendants. We affirm the orders to compel the employer's payment of statutory attorney fees and expenses. In July 2003, Evans, an Atash employee, was injured in a construction accident. He subsequently sued defendants Doherty, Roughneck, McDonough, Wolf, and Evergreen Park Elementary School District 1241 for personal injuries arising from the accident. Plaintiff's employer, Atash, paid workers' compensation benefits in the amount of $152,000 to plaintiff and it asserted a lien pursuant to section 5(b) of the Workers' Compensation Act (Act) (820 ILCS 305/5(b) (West 2006)) against any proceeds collected by plaintiff. Defendants brought various cross-claims and counterclaims for contribution against each other, and each filed third-party contribution actions against Atash. In May 2007, prior to trial, defendants Doherty, Roughneck, McDonough, and Wolf reached an agreement with Atash to purchase its workers' compensation lien for $90,000, and to dismiss the third-party claims against Atash. Defendants also filed a motion concerning admission of liability. At a hearing on May 2, the parties informed the court that, as to the thirdparty action, there would be a settlement and that, according to one of the parties, the lien was

1

Defendant Evergreen Park Elementary School District 124 was eventually dismissed

from the action on a motion for summary judgment and is not a party to this appeal. -2-

1-07-1455 "going away as well by settlement." The court stated that it understood the lien had been sold for $90,000. It further stated that "the third-party defendant employer [i.e., Atash] *** will be dismissed with prejudice pursuant to settlement" and the action would be "going ahead with primary defendants, the lienholder having been bought out and third party, *** gone." The following day, the court continued hearing matters related to the settlement. The court was informed that there was a settlement with plaintiff for $650,000, from which the $90,000 paid for the lien would be subtracted. There was a lengthy discussion with counsel for Atash about the sequence of the settlement: counsel asserted that when Atash sold the rights to the lien, the lien "was still open" and "had not been extinguished" or "applied to any judgment or settlement." The court understood that Atash no longer had the lien and thus could not enforce it, but stated that, under section 5(b) of the relevant statute, the provision concerning attorney fees and reimbursement could only apply to Atash: "And I quote from it

Download Evans v. Doherty Construction, Inc..pdf