{ "id": 1577246, "name": "Ashok Railkar, Plaintiff-Appellant, v. Janice Boll, Defendant-Appellee; Philip E. Howard, Petitioner-Appellant, v. P. F. Collier, Inc., and Hartford Accident and Indemnity Co., and Country Mutual Insurance Co., Interveners-Respondents-Appellees", "name_abbreviation": "Railkar v. Boll", "decision_date": "1970-06-25", "docket_number": "Gen. No. 69-193", "first_page": "203", "last_page": "210", "citations": [ { "type": "official", "cite": "125 Ill. App. 2d 203" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "157 NE2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "16 Ill2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2761285 ], "year": 1959, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0169-01" ] }, { "cite": "188 NE2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "27 Ill2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360146 ], "year": 1962, "pin_cites": [ { "page": "248, 249" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0245-01" ] }, { "cite": "119 NE2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "2 Ill App2d 191", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5123665 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ill-app-2d/2/0191-01" ] }, { "cite": "155 NE2d 638", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "15 Ill2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2767713 ], "year": 1959, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0564-01" ] }, { "cite": "248 NE2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "109 Ill App2d 277", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1594865, 1594822 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/109/0277-01", "/ill-app-2d/109/0277-02" ] } ], "analysis": { "cardinality": 462, "char_count": 10172, "ocr_confidence": 0.579, "pagerank": { "raw": 2.781101399746942e-07, "percentile": 0.8351500415661299 }, "sha256": "1721fea3ef93961a92b94d4a140fd5504a723c18404d0bc1c40be9dddeb30212", "simhash": "1:3dc3a452658af84e", "word_count": 1658 }, "last_updated": "2023-07-14T21:44:25.801862+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ashok Railkar, Plaintiff-Appellant, v. Janice Boll, Defendant-Appellee. Philip E. Howard, Petitioner-Appellant, v. P. F. Collier, Inc., and Hartford Accident and Indemnity Co., and Country Mutual Insurance Co., Interveners-Respondents-Appellees." ], "opinions": [ { "text": "MR. JUSTICE SEIDENFELD\ndelivered the opinion of the court.\nMODIFIED OPINION ON DENIAL OF PETITION FOR REHEARING\nAshok Railkar filed suit for personal injuries against Janice Boll and recovered a trial judgment in the amount of $5,000. P. F. Collier, Inc., as Railkar\u2019s employer, and Hartford Accident and Indemnity Co., as the workmen\u2019s compensation carrier, were given leave to intervene to protect the lien of workmen\u2019s compensation paid to Railkar in the amount of $9,800.\nPetitioner, Philip E. Howard, an attorney, had represented Railkar in the injury suit. He also represented Railkar in a prosecution of an appeal of that suit on the issue of damages only. The judgment was affirmed in Railkar v. Boll, 109 Ill App2d 277, 248 NE2d 521 (1969).\nThereafter, a petition for adjudication of liens was filed by the plaintiff, reciting that the $5,000 judgment had been increased by $375 in accumulated interest; that plaintiff\u2019s attorney has a contract providing for 50% of any amount owing; and that expenses had been incurred in the amount of $2,137.89. The petitioner further recited that plaintiff\u2019s attorney had been served with liens as follows: Interveners $9,800; and hospital and doctors\u2019 expenses totaling $3,730.97.\nInterveners answered, denying any attorney fee contract beyond that specified by section 5 of the Workmen\u2019s Compensation Act (Ill Rev Stats 1967, c 48, \u00a7 138.5), which provides for \u201cpayment to the attorney of 25% of the gross amount reimbursed\u201d; and alleged the superiority of the workmen\u2019s compensation lien to any other lien.\nThe trial court disbursed the $5,375 personal injury judgment as follows: $2,137.89 to plaintiff\u2019s counsel for expenses of litigation; $806.27 to plaintiff\u2019s counsel based upon 25% of the judgment as reduced by the litigation expenses ; and $2,430.84 to interveners, as the balance.\nIt is from this order that the appeal is taken.\nHoward argues that he is entitled to 50% of the gross personal injury judgment, basing his claim on his contingent fee contract with Railkar and upon the provisions of the Attorney\u2019s Lien Act (Ill Rev Stats 1967, c 13, \u00a7 14). Alternatively, he claims that, if we determine that he is limited to the 25 % statutory fee provided in the Workmen\u2019s Compensation Act (\u00a7 138.5(b)), the percentage must be applied to the gross amount of the personal injury judgment.\nInterveners counter that the only authority requiring payment by employer of an employee\u2019s attorney\u2019s fees in actions by an employee against a third person is found in the Workmen\u2019s Compensation Act and is limited to 25% of the amount reimbursed to the employer. They argue that the other expenses of the litigation do not comprise reimbursement to the employer.\nWe agree with interveners\u2019 contention that the provisions of the Workmen\u2019s Compensation Act for a 25 % fee provide the only basis for recovery of plaintiff\u2019s attorney\u2019s fees as against the employer. There was no contractual relationship between the employee Railkar or his attorney Howard and the interveners. The inclusion of the provision of payment by the employer of a prorata share of costs, together with attorney\u2019s fees in section 5 of the Workmen\u2019s Compensation Act as amended in 1957, constitutes the only basis of the employer\u2019s liability to share the employee\u2019s burden of expenditures for recovery against a third party. Hardwick v. Munsterman, 15 Ill2d 564, 567, 155 NE2d 638 (1959). Prior to that amendment, the employer was entitled to complete reimbursement of the fund recovered from such third party without any statutory or common-law requirement to bear any part of the employee\u2019s costs or fees incurred in a proceeding in which the employer was not a party. Manion v. Chicago, R. I. & P. R. Co., 2 Ill App2d 191,119 NE2d 498 (1954).\nThe validity of the amendment to section 5 of the Workmen\u2019s Compensation Act was upheld in Reno v. Maryland Cas. Co., 27 Ill2d 245, 248, 249, 188 NE2d 657 (1962). There, the Supreme Court noted that the purpose of the subrogation section as originally enacted was to prevent the employee from obtaining unjust enrichment in the nature of a double recovery for the same injury; and that the purpose of the provision requiring the employer to pay a proportionate share of the expenses of securing a fund out of which the employer could be subrogated, was to prevent the employer from being unjustly enriched.\nNo authority, other than the statute, has been furnished by either side on the question of whether the plaintiff\u2019s attorney\u2019s fees apply to the entire recovery in a personal injury action or only to the amount which the interveners actually receive after the deduction of the litigation expenses. Nor are we aided by any reference to the purpose of the amendment to section 5. The unjust enrichment concept upon which the statutory provision is based is of no aid in deciding a case in which the subrogation fund is substantially less than the employer\u2019s lien.\nThe language used in the statute affords the only basis for interpretation. Ill Rev Stats, c 48, \u00a7 138.5 (b), provides in part:\n\u201cWhere the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer\u2019s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of this Act.\n\u201cOut of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.\u201d\nThe first paragraph of section 138.5 (b) establishes the subrogation fund by reference to the amount received by the employee from the judgment or settlement in the action against the negligent third party, and directs that the employer shall be paid from that amount the compensation paid to the employee.\nThe following paragraph directs that \u201cout of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim . . . .\u201d In reasonable context the term any reimbursement must include the full amount of the subrogation fund out of which the employer\u2019s lien is to be paid, limited by the extent of such lien when the fund is in excess of the lien. The court below properly deducted the litigation expenses from the $5,375 recovery on this basis. Since the recovery was less than the employer\u2019s lien, the entire amount of the costs and necessary expenses required to create the subrogation fund was properly borne by the employer and there was no proration involved.\nThe remaining portion of the sentence in the second paragraph which is in issue here, provides for the payment of attorney\u2019s fees to the employee\u2019s attorney when, as here, his services have created the subrogation fund which is described as \u201cthe proceeds out of which the employer is reimbursed.\u201d (Emphasis added.)\nThe further language that the employer, in the absence of other agreement, \u201cshall pay such attorney 25 % of the gross amount of such reimbursement,\u201d in the necessary context, must be said to refer to the entire subrogation fund as this makes up the proceeds out of which he receives reimbursement as referred to in the preceding part of the paragraph.\nWe cannot agree, within reason, that \u201creimbursement\u201d as used in the first part of the sentence, means the proceeds of the judgment or settlement in a third-party action, and in the following part of the same sentence that \u201creimbursement\u201d means the net amount which the employer recovers, particularly when the legislature has used the descriptive term, \u201cgross.\u201d The same words appearing in different parts of the statute will be given a consistent meaning where legislative intention is not clearly expressed to the contrary. See Moran v. Katsinas, 16 Ill2d 169,174,157 NE2d 38 (1959).\nTherefore, that portion of the trial court\u2019s order of distribution which applies the 25% attorney\u2019s fees only to the net amount of $3,237.11 of the third-party judgment, after deduction of litigation expenses, is reversed. The remaining portion of the judgment order is affirmed.\nWe remand the cause with directions to assess the attorney\u2019s fees on the basis of 25 % of $5,375.\nAffirmed in part and reversed in part and remanded with directions.", "type": "majority", "author": "MR. JUSTICE SEIDENFELD" }, { "text": "MORAN, J.,\nconcurs.", "type": "concurrence", "author": "MORAN, J.," }, { "text": "ABRAHAMSON, J.,\ndissenting:\nI concur with the finding of the trial court that the attorney\u2019s fees due to Philip E. Howard be in the amount of $806.27, being 25% of the judgment plus interest, less reimbursement expenses paid to Philip E. Howard in the amount of $2,137.89.", "type": "dissent", "author": "ABRAHAMSON, J.," } ], "attorneys": [ "Philip E. Howard and William J. Harte, of Chicago, for appellant.", "Peregrine, Stime and Henninger, of Wheaton, for appellee." ], "corrections": "", "head_matter": "Ashok Railkar, Plaintiff-Appellant, v. Janice Boll, Defendant-Appellee. Philip E. Howard, Petitioner-Appellant, v. P. F. Collier, Inc., and Hartford Accident and Indemnity Co., and Country Mutual Insurance Co., Interveners-Respondents-Appellees.\nGen. No. 69-193.\nSecond District.\nJune 25,1970.\nRehearing denied and opinion modified July 17, 1970.\nABRAHAMSON, J., dissenting.\nPhilip E. Howard and William J. Harte, of Chicago, for appellant.\nPeregrine, Stime and Henninger, of Wheaton, for appellee." }, "file_name": "0203-01", "first_page_order": 209, "last_page_order": 216 }