Kelly v. Clayco Construction Co.
2025 IL App (1st) 231799
Ill. App. Ct.2025Background
- Chris Kelly, an ironworker on a Clayco Construction site, suffered severe injuries when a truss fell on his feet, leading to multiple surgeries.
- Chris and his wife, Julie Kelly, sued Clayco for negligence in managing the construction site.
- The jury found Clayco liable and awarded Chris Kelly over $12 million in damages (reduced for comparative fault); Julie Kelly received $0 for loss of consortium.
- Chris was ordered to remit over $1.1 million to Clayco for workers’ compensation previously paid.
- Julie Kelly moved for a new trial on the loss of consortium claim; Chris sought attorney fees on the reimbursed compensation amount.
- The trial court denied Julie's motion for a new trial and granted Chris's request for attorney fees, leading to both appeal and cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury's $0 Award for Loss of Consortium | Verdict was against manifest weight; uncontroverted support for damages | No transcript, so appellate review is foreclosed; proper procedures followed | Affirmed; insufficient record to review abuse of discretion |
| Entitlement to Attorney Fees (Workers’ Comp reimbursement) | Fees proper under common fund doctrine or statute | Statutory/contractual waiver; wrong doctrine; improper fees | Affirmed; plaintiff entitled to 25% attorney fees under statute |
| Effect of Settlement Agreement on Fee Claim | Waiver applied only to employer, not third-party Clayco | Settlement bars fees against any party | Settlement did not waive fees against Clayco |
| Waiver of Statutory Attorney Fees by Conduct | No explicit waiver; setoff isn’t a waiver | Plaintiffs accepted setoff, waiving fees | No waiver; explicit waiver needed for statutory rights |
Key Cases Cited
- Foutch v. O'Bryant, 99 Ill. 2d 389 (presumption in favor of trial court absent sufficient record on appeal)
- Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83 (manifest weight of the evidence standard for jury verdicts)
- Lawlor v. North American Corp. of Illinois, 2012 IL 112530 (standard for reviewing denial of new trial)
- Gallagher v. Lenart, 226 Ill. 2d 208 (explicit waiver needed for statutory rights in Illinois)
- Hardwick v. Munsterman, 15 Ill. 2d 564 (purpose of attorney fee provisions in workers’ compensation context)
- Laffoon v. Bell & Zoller Coal Company, 65 Ill. 2d 437 (suits against general contractors for injury and workers’ comp reimbursement)