*1 THIES, Plaintiff-Appellee, R. v. KORTE-PLOCHER CONSTRUC ARLAN COMPANY, INC., Defendant-Appellant.

TION 5 — 93—0441

Fifth District No. 30, 1994. Opinion filed December CHAPMAN, J., dissenting. Pranaitis, Bell, Alton, Raymond Hoagland, Fitzgerald, Smith &

C. appellant. III, Schooley Schooley, W. of Law Offices of William W. William City, appellee. Granite *2 opinion of court:

JUSTICE WELCH delivered the the (plaintiff) filed a Structural Arlan Thies claim Work (Ill. 48, par. against Act seq.) Rev. Stat. ch. 60 et Korte-Plocher (defendant) of in the circuit court Madison Company Construction injuries occurring County for on November 1987. Defendant for subsequently third-party a claim contribution filed Erectors, plaintiff’s employer, (third-party defen Rednour Steel Inc. dant). During trial, third-party plaintiff with the defen settled statutory third-party a waiver defendant’s workers’ dant for of the The trial which amounted to court compensation as a approved this settlement dismissed trial, and the third-party proceeded action. cause to plaintiff a in favor of for Neither returned verdict post-trial filed a motion. a for January defendant tendered check

In $278,199.51, less the representing the amount of the entire accepting lien. After the check compensation of the workers’ amount filed, judgment, plaintiff on March as a satisfaction of partial argued that de- adjudicate judgment setoff. Plaintiff a motion amount not to a of the entire of fendant was entitled setoff (i.e., $206,236.49). on section compensation Relying lien workers’ (West (820 305/5(b) 1992)), ILCS of Act the Workers’ position was to set off that defendant entitled took lien compensation workers’ third-party of the defendant’s value (i.e., compensation paid less equal benefits an amount to the workers’ expenses). of On an fee of and less a rata share 25% defendant May 24, the trial court ordered of plus pro rata share fees 5(b). totaling pursuant how much of and raises issue: appeals now Defendant when a defen is entitled to judgment setoff a defendant waiving its total directly plaintiff by with has settled dant words, is entitled In other the defendant compensation lien. compensa third-party defendant’s workers’ 100% the setoff of of (i.e., $206,236.49) or the workers’ tion (i.e., $153,504.09, which is less and less a expenses). de- Plaintiff setoff the asserts amount is to claim the consideration fendant entitled is "the amount of good for the faith settlement between successfully argued defendant/employer.” Plaintiff in the 2(c) below court that under section Joint Tortfeasor Contribu- (Contribution Act)(740 (West 1992)) 100/2(c) tion ILCS setoff In "actually paid.” should the amount consideration relevant part, provides: *** given good "When a or not release covenant to sue is arising persons

faith to one more out liable tort of the same injury ***, discharge any not it does the other tortfeasors from liability injury provide re- unless its terms so but it any duces the claim the others to the extent covenant, amount stated in the release or the or in the it, actually the consideration whichever (West 100/2(c) 1992). greater.” (Emphasis Because no release or covenant executed between the case, agree we with plaintiff that the setoff should be consideration paid. However, according plaintiff, to the *3 be 75% third-party would of the lien that the defendant subtracting

could recover statutory attorney after 25% the fee and 5(b). pro pursuant rata share of expenses to section First, disagree. lien, by waiving third-party We its the defendant lien, paid plaintiff $206,239.49, not 75% of the which would $150,000. to approximately Plaintiff received the full value of the when the its waived right to recover lien. The its case law holds that the full amount of against any subsequent lien waiver should be set off by against plaintiff obtained the the defendant. In Wilson v. Hoffman Group, (1989), 524, Inc. plaintiff 131 Ill. 2d 546 N.E.2d the injured in a accident and filed a Structural Work construction against contractor, claim general the who in a third-party turn filed against the complaint plaintiff’s employer. plaintiff and his The employer employer entered into a in which settlement the waived $149,737 statutory entire and of plaintiff an rejecting additional After the argument only the lien had an expec no value because it was stated, tancy recovery, of court in issue as the Wilson "the remains to whether the amount of the lien set off waiver should be 220 recovery plaintiff.” (Wilson,

subsequent by the 131 Ill. at 546 530.) considerations, Following analysis policy an of the N.E.2d at by holding specified "that all the court concluded of $149,737, release, off including the lien waiver should be set of by the any subsequent plaintiff.” obtained added.) Wilson, 532; (Emphasis 131 2d at N.E.2d at see Ill. (1992), Pillsbury App. v. Higginbottom also Co. ("the 843, 854 full of the waiver [employer’s]

596 N.E.2d value 2(c) plaintiff’s recovery pursuant from to section of the will set off (7th 1989), Act”); Co. Marathon Petroleum Cir. Stifle (same). F.2d 562-63 Second, by allowing the an additional recover $52,732.40 (i.e., attorney expenses) fee of from and share defendant, Plaintiff has overcompensated. would be (1) already with received: as a result of his settlement (2) $278,199.51 defendant and defendant. $484,436, together, yield figure of When added these two sums give attorney To amount of the verdict. recovering result a total of fees and would Lastly, plaintiff’s attempted most reliance importantly, (820 305/5(b) of the Workers’ (West 1992)), provides: which employer pursuant reimbursement received

"Out Section, all employer pay pro rata to this shall reasonably necessary expenses such in connection with costs claim, of an and where the services action or suit law substan- employee at have resulted or suit, procurement by tially contributed to reimbursed, employer is proceeds of which the otherwise out then, agreement, employer pay shall in the absence other gross such reimbursement.” such payment he gist plaintiff’s claim is that is entitled to (who employer) of the plaintiff’s, is not the from defendant However, clear from statutory attorney expenses. as is fee and expenses applies 5(b), fees text of section (See App. Ill. Corp. Rice v. McDonald’s employers. (employer required 3d 201 *4 5(b) costs).) case, has section Based on the facts

rata share of no "reimburse employer received application plaintiff’s because no line The bottom compensation lien. ment” of its workers’ only come from and can the 25% that employer, employer by for only if a is effected attorney. supports proposition. uniformly The case law 5(b) view, our who attorneys employees "In section allows obtain to from the employer from third recover compensation attorneys if substan employee’s the workers’ tially judgment. Only procurement contributed brings employer litigates when the the suit and the suit to employer compensation can the receive lien free the obligation pay employ 25% of the reimbursement to the (1989), attorneys.” (Emphasis original.) ee’s v. Dukes J.I. Case Co. 439, 442; Ill. App. 3d 542 N.E.2d see v. also Zuber Illinois (1990), 407, 415-16, 388-89; Power Co. 135 Ill. Hig 553 N.E.2d 848-49; ginbottom, App. 247-48, Langley 232 Ill. 3d at 596 N.E.2d at v. (1989), Ferguson 1036, 1041-42, App. H.K. Co. 186 Ill. 542 N.E.2d 1200, 1204.

Our decision is in full accord with a recent case from the first Corley district. In McHugh James Construction Co.

App. 3d 639 N.E.2d a case whose facts are identical 5(b) case, those of the instant plaintiff sought section recover though employer fees and costs even had executed a waiver of its (Carley, 1375-76). App. Ill. 3d at 639 N.E.2d at Corley court in held: 5(b) "Carley’sinterpretation of rejected. section must be Section 5(b) any states: 'Out employer reimbursement received Section, pursuant to this employer pay’ shall the aforemen costs, fees, tioned expenses. 5(b)’splain language

[Citation.] Section provides thus that the employer any must the amounts out of reimbursement that it Where, here, employer right receives. reimbursement, as waives its to that precedent having condition received the 5(b) anticipated by reimbursement as never occurred. As a result, employer duty obligation is not under to con employee’s obtaining recovery. tribute to the cost of See Reno Maryland (1963)], 247[, Casualty [245,] [v. Co. 27 Ill. 2d 188 N.E.2d 657]. 5(b) payments defendants,

The section cannot be shifted to as Corley suggests, statutory provision doing because there is no so. duty upon employer pay Section creates a costs, fees, expenses only the employer when receives a compensa reimbursement of the amounts it out in workers’ claim, they tion benefits. As defendants cannot now be made to place employer agreement stand in they for an to which party, they agree, were not a they to which did not in which assignment statutory rights.” received no employer’s *5 222 622-23, original.) Corley, at

(Emphasis Ill. App. N.E.2d at 1377-78. recovery for his in the amount

Plaintiff’s made client he Presumably, will a fee for his work. To make receive the 25% fee and a rata share of it only overcompensate plaintiff, but would also would not though plaintiff recovery for the reward even never made employer. benefit of his reasons, hereby

For aforementioned we reverse the order County. the circuit court of Madison

Reversed.

LEWIS, J., concurs. CHAPMAN, dissenting:

JUSTICE dissent, my might from explanation I and an dissent benefit figures result. hypothetical some actual original gone complaint If case had to verdict on both the action, if made the same and the had $484,436 Korte-Plocher, from and if the had also recovery of fault, be 50% at then distribution found Rednour proceeds would been as follows: have $484,436

Plaintiff: from Korte-Plocher. $242,218 Rednour, but from Korte-Plocher: compensation paid the amount of the workers’ would be limited to ($206,236.49) Corp. Cyclops Welding Kotecki 155, 585 1023. N.E.2d stage: at this The result plus $484,436, be

Plaintiff would $278,200 (-$484,436 be minus Korte-Plocher would + $206,236.49), and be minus Rednour would into Compensation comes

Now section of Workers’ would be If no waiver of the Rednour there had been play. it had plaintiff-employee from the amount to recover entitled Act, $206,236.49 a 25% less paid under the Workers’ ($51,559.12), or the costs (this following posture: parties which would leave costs) ignores pro rata share of calculation - $154,677.37) $329,758.63 ($484,436 plus be Plaintiff would $206,236) $278,200 (-$484,436 minus would be Korte-Plocher + Korte) $51,559.12 (-$206,236.49 would be minus Rednour (+$206,236.49 plaintiff) from (-$51,559.12 plaintiff). mind, figures final turn to the settlement Keeping these we subsequent actually reached in this case. Plaintiff would verdict Korte-Plocher). (verdict gets +$484,436 Korte-Plocher was because Rednour nothing from Rednour on its action finding court’s dismissed based on the trial nothing Although Korte-Plocher receives Act. action, on the it is entitled to a reduction Rednour plaintiff’s recovery "any it of stated in covenant, release or in the the consideration on added.) (740 100/2(c) (West actually paid it.” 1992).) parties agree emphasized phrase the Contribu- applicable here, they disagree tion is the but portion what "the amount of for it” the consideration this case. *6 was that its lien

What amount? Rednour waived paid but the amount of actually $154,677.37 plaintiff’s attorney because would Rednour have to figures

What are the final under the settlement scenario? $329,758.63 (+$484,436 plus Plaintiff would be from Korte- — Rednour). $154,667.37 Plocher Korte-Plocher would be minus (credit)). $329,758.63 (-$484,436 Rednour would + $206,236.49 paid minus The benefits. plaintiff does not recovery; make a double is identical. There is a difference the ultimate results Korte-Plocher and Rednour, but the is by difference created the different means of judgment against reduction Korte-Plocher. In sce- the first nario, obligation Korte-Plocher’s would been by have reduced amount it could have recovered on its contribution action second, if the settlement had not been effected. In the sce- actual-case nario, obligation Korte-Plocher’s is reduced consideration that Rednour in its settlement. majority equates money paid by the amount of Rednour ($206,236.49) satisfy obligations employee to its Workers’ Act with the "amount of the consider- actually paid

ation for” action. But in consideration of the dismissal of the third- action is that amount that Rednour could have recovered tried, if the had completely case been and that less the fee and share of the costs. Therefore, I respectfully dissent.