{ "id": 3556805, "name": "ERNEST RAY JACKSON, Plaintiff-Appellee, v. POLAR-MOHR, DefendantAppellee-(National Ben Franklin Insurance Company of Illinois, Inc., Intervening Petitioner-Appellant)", "name_abbreviation": "Jackson v. Polar-Mohr", "decision_date": "1983-06-16", "docket_number": "No. 82\u2014697", "first_page": "571", "last_page": "576", "citations": [ { "type": "official", "cite": "115 Ill. App. 3d 571" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "389 Ill. 156", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2505565 ], "pin_cites": [ { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/ill/389/0156-01" ] }, { "cite": "71 Ill. App. 3d 630", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578280 ], "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0630-01" ] }, { "cite": "87 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179777 ], "pin_cites": [ { "page": "619-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0615-01" ] }, { "cite": "99 Ill. App. 3d 75", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100158 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0075-01" ] }, { "cite": "91 Ill. App. 3d 455", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3147436 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0455-01" ] }, { "cite": "56 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3417098 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0960-01" ] }, { "cite": "6 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5481054 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0329-01" ] }, { "cite": "101 Ill. App. 2d 8", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2901023 ], "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0008-01" ] }, { "cite": "68 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3309159 ], "year": 1968, "pin_cites": [ { "page": "1016" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/1011-01" ] } ], "analysis": { "cardinality": 572, "char_count": 11126, "ocr_confidence": 0.735, "pagerank": { "raw": 1.5239692565240622e-07, "percentile": 0.6697954205052109 }, "sha256": "10461bb360a8d55528d6515d691ed00e636fc48bcc866b93ceadd77f60bbebc3", "simhash": "1:deef90d46e44b560", "word_count": 1847 }, "last_updated": "2023-07-14T19:16:24.783716+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ERNEST RAY JACKSON, Plaintiff-Appellee, v. POLAR-MOHR, DefendantAppellee\u2014(National Ben Franklin Insurance Company of Illinois, Inc., Intervening Petitioner-Appellant)." ], "opinions": [ { "text": "JUSTICE VAN DEUSEN\ndelivered the opinion of the court:\nOn January 10, 1979, plaintiff, Ernest Ray Jackson, brought a products liability action against defendant Polar-Mohr and others for personal injuries. On June 22, 1979, upon notice to the parties and with leave of court, the National Ben Franklin Insurance Company of Illinois, Inc. (Ben Franklin) filed its intervening petition in this cause as subrogee of Bull\u00eds Litho Company, the employer of plaintiff, seeking a lien in the amount of $2,961.27 against any recovery plaintiff might secure against the defendants. The lien was asserted pursuant to the provisions of section 5(b) of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)) for monies paid under the Act to plaintiff or on his behalf. The June 22 order granting Ben Franklin leave to file its intervening petition also ordered Ben Franklin not to participate in the trial. Neither the plaintiff nor the defendant Polar-Mohr has filed any pleadings denying the allegations of the intervening petition.\nOn May 25, 1982, judgment was entered on a jury verdict in favor of the plaintiff and against the defendant Polar-Mohr in the amount of $10,000. On June 22, 1982, defendant Polar-Mohr filed its post-trial motion, and, on June 24, 1982, plaintiff filed its post-trial motion asking that its judgment against Polar-Mohr be set aside and for a new trial.\nAlso on June 24, 1982, the 30th day following the entry of judgment, the plaintiff filed a motion to dismiss the intervening petition of Ben Franklin on the grounds that Ben Franklin did not participate in the trial of the cause and at no time presented proofs of the allegations contained in its intervening petition.\nOn August 4, 1982, the trial court granted plaintiff\u2019s motion to dismiss and denied the intervening petition of Ben Franklin, not on its merits but on the grounds that Ben Franklin had a duty, within 30 days of the date of plaintiff\u2019s judgment against the defendant PolarMohr, to cause the court to act upon its intervening petition and for the further reason that the trial court lacked jurisdiction. In the same order the trial court denied the post-trial motions of the plaintiff and of the defendant Polar-Mohr. Ben Franklin appealed.\nWe find that the trial court erred in entering its order of August 4,1982, denying Ben Franklin\u2019s intervening petition.\nPlaintiff assumes erroneously, as did the trial court, that section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1), now recodified as section 2 \u2014 1202 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1202) applied in determining the lack of Ben Franklin\u2019s timeliness in securing its lien. Section 68.1, which provides that a post-trial motion must be filed within 30 days after the entry of judgment, concerns motions which request the trial court to correct trial error. (See Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 1016; People ex rel. Gustafson v. City of Calumet City (1968), 101 Ill. App. 2d 8, 11.) Since the issue before the trial court did not concern trial error but rather a distinct and collateral claim by an intervening party, section 68.1 does not apply. Ben Franklin did not seek to challenge the validity or correctness of the judgment, but simply to assert its lien on the proceeds of that judgment.\nPlaintiff attempts to augment his argument by citation to Augsburg v. Frank\u2019s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, and argues that the intervening petitioner must exercise due diligence and affirmatively establish its entitlement to a lien in order to recover. Augsburg is inapposite. It dealt with the denial of a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401), which does require the showing of diligence. The petitioner in this case, having been granted leave to file its intervening petition, was under no duty to present proofs in support of the allegations of its petition so long as they remained unanswered and undenied by the plaintiff.\nUnder the Workers\u2019 Compensation Act, an employer may intervene in an employee\u2019s cause of action at any stage prior to the satisfaction of judgment. (Arnold Lies Co. v. Legler (1960), 26 Ill. App. 2d 365, 375.) Since the employer\u2019s interest in the judgment is in the form of a lien (Denius v. Robertson (1981), 98 Ill. App. 3d 83, 86; Kimpling v. Canty (1973), 13 Ill. App. 3d 919, 921), his intervention is limited to protecting the lien in all orders of the court after hearing and judgment (Arnold Lies Co. v. Legler (1960), 26 Ill. App. 2d 365, 375). No satisfaction of the judgment or settlement in the action is valid without the written consent of the employer unless the employer has been fully indemnified or protected by court order. Ill. Rev. Stat. 1979, ch. 48, par. 138.5.\nIn Galvan v. John Caretti Co. (1972), 6 Ill. App. 3d 894, the trial court, prior to judgment in the plaintiff-employee\u2019s civil tort action and pursuant to the employer\u2019s petition to intervene, entered an order protecting the employer\u2019s rights and interests in any judgment or settlement in the employee\u2019s favor. Approximately three months after the jury returned a verdict in favor of the employee, the employer filed a petition requesting, in essence, a lien in the amount it might be required to pay in an upcoming Industrial Commission proceeding. The trial court granted the employer an award or credit in the nature of a setoff or prepayment on any award which the Industrial Commission might enter. The appellate court rejected the employee\u2019s argument on appeal, similar to the present one, that the trial court had no jurisdiction to enter an order adjudicating the rights of litigants more than 30 days after final judgment had been rendered. The court held that the trial court had jurisdiction to grant the employer ah award because no satisfaction of the employee\u2019s judgment would be valid until such an order was entered.\nThe reasoning in Galvan applies in the instant case. In its petition to intervene, Ben Franklin alleged that it was subrogated to the rights of Jackson\u2019s employer and was entitled to reimbursement for the amount it previously paid to plaintiff under the Act, requested the court to protect its rights, and prayed for a lien on any judgment entered in Jackson\u2019s favor. The court\u2019s subsequent order, unlike that in Galvan, did not specifically protect the insurance company\u2019s rights; it merely granted it leave to file the petition. However, such language in the court\u2019s order is not necessary since the filing of the petition in itself established the lien and notified plaintiff, defendant and the trial court of its existence. (See Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1977), 56 Ill. App. 3d 960 (lien breached where the tortfeasor\u2019s insurance company and plaintiffs settled after notice by worker\u2019s compensation insurance company of lien).) Since no court order protected the insurance company\u2019s rights, the validity of any satisfaction of the judgment required the insurance company\u2019s consent. Cf. Kleeman v. Fragman Construction Co. (1980), 91 Ill. App. 3d 455 (court order protected employer\u2019s interest so that employer\u2019s consent was not required to have a valid judgment).\nThus, it was incumbent upon Jackson and Polar-Mohr to get Ben Franklin\u2019s consent prior to the satisfaction of judgment or to challenge the asserted lien (see Esin v. Liberty Mutual Insurance Co. (1981), 99 Ill. App. 3d 75 (employee\u2019s widow sought declaratory judgment regarding validity of insurance company\u2019s lien)). The record in the instant case does not indicate that Ben Franklin gave such consent, so that no valid satisfaction of judgment could be entered into by Jackson and Polar-Mohr. Since an employer may intervene at any time prior to the satisfaction of judgment, it is obvious in this case that, because Ben Franklin had filed its intervening petition for lien well in advance of trial and prior to satisfaction of judgment, the trial court had jurisdiction to consider the limits of Ben Franklin\u2019s lien.\nPlaintiff also contends that the appeal has been rendered moot because Ben Franklin did not obtain a stay of the order from which it appealed. Plaintiff has attached exhibits as part of the appendix to its brief which would indicate that plaintiff has now received $10,000 from defendant insurance company in exchange for a purported satisfaction of judgment and has spent or is in the process of spending these proceeds. In support of his argument he relies on Horvath v. Loesch (1980), 87 Ill. App. 3d 615, 619-20, and Supreme Court Rule 305(i) (87 Ill. 2d R. 305(i)) for the proposition that, in the absence of a stay, an appeal is moot if possession or ownership of specific property which is inextricably involved in the relief being sought on appeal has been conveyed to third parties.\nPlaintiff\u2019s reasoning is fatally flawed in two respects. First, Rule 305(i) has no application to money judgments, since money does not constitute a specific identifiable property. Second, Rule 305(i) specifically protects the rights and interests of nonparties in the absence of a stay of judgment and would not protect the rights of plaintiff or defendant, both parties in this cause, from reversal on appeal. Therefore, Ben Franklin\u2019s failure to obtain a stay does not render this appeal moot. (Schaumburg State Bank v. Seyffert (1979), 71 Ill. App. 3d 630, 636.) As the Supreme Court of Illinois stated in discussing a predecessor of Rule 305(i):\n\u201cA party to a suit is presumed to know all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not be abrogated by a subsequent reversal thereof. If such party has received benefits from the erroneous decree or judgment, he must, after reversal, make restitution, and, if he has sold property erroneously adjudged to belong to him, he must account to the true owner for the value.\u201d First National Bank v. Road District No. 8 (1945), 389 Ill. 156, 161-62.\nThis appeal was not rendered moot by defendant\u2019s expenditure of the proceeds of the judgment.\nThat portion of the order of the trial court of August 4, 1982, denying Ben Franklin\u2019s intervening petition is vacated; if any satisfaction of the judgment entered in favor of the plaintiff and against the defendant Polar-Mohr has been filed of record with the clerk of the trial court, it is stricken and held for naught; and the cause is remanded to the trial court for further proceedings consistent with this opinion.\nVacated and remanded.\nLINDBERG and REINHARD, JJ., concur.", "type": "majority", "author": "JUSTICE VAN DEUSEN" } ], "attorneys": [ "Helen M. Krawzak, of Aries, Hoyt & Williams, of Chicago, for appellant.", "Aldo E. Botti, Peter A. Monahan, and Walter P. Maksym, Jr., all of Botti, Marinaccion & Maksym, Ltd., of Oak Brook, for appellees." ], "corrections": "", "head_matter": "ERNEST RAY JACKSON, Plaintiff-Appellee, v. POLAR-MOHR, DefendantAppellee\u2014(National Ben Franklin Insurance Company of Illinois, Inc., Intervening Petitioner-Appellant).\nSecond District\nNo. 82\u2014697\nOpinion filed June 16, 1983.\nRehearing denied July 22, 1983.\nHelen M. Krawzak, of Aries, Hoyt & Williams, of Chicago, for appellant.\nAldo E. Botti, Peter A. Monahan, and Walter P. Maksym, Jr., all of Botti, Marinaccion & Maksym, Ltd., of Oak Brook, for appellees." }, "file_name": "0571-01", "first_page_order": 593, "last_page_order": 598 }