{ "id": 2655260, "name": "ROBERT J. LANGLEY, Plaintiff-Appellee, v. H.K. FERGUSON COMPANY, Third-Party Defendant-Appellant", "name_abbreviation": "Langley v. H.K. Ferguson Co.", "decision_date": "1989-08-02", "docket_number": "No. 5\u201487\u20140722", "first_page": "1036", "last_page": "1042", "citations": [ { "type": "official", "cite": "186 Ill. App. 3d 1036" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "518 N.E.2d 69", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. 2d 41", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192813 ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0041-01" ] }, { "cite": "491 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448533 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0788-01" ] }, { "cite": "452 N.E.2d 851", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482289 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0213-01" ] }, { "cite": "386 N.E.2d 318", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307392 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0396-01" ] }, { "cite": "300 N.E.2d 839", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344598 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0919-01" ] }, { "cite": "452 N.E.2d 611", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1973, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518435 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0845-01" ] }, { "cite": "522 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472212 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0978-01" ] }, { "cite": "502 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501413 ], "weight": 3, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0806-01" ] }, { "cite": "504 N.E.2d 1328", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 899", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576478 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0899-01" ] } ], "analysis": { "cardinality": 601, "char_count": 15920, "ocr_confidence": 0.754, "pagerank": { "raw": 8.28196036820317e-08, "percentile": 0.47897367761595366 }, "sha256": "9f3da714e8e8b6bbfdb14f36c23eaab0436120469ae3372c53d635b6a0fd5d1d", "simhash": "1:23ba7cc69bdd2cce", "word_count": 2571 }, "last_updated": "2023-07-14T21:56:50.889546+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT J. LANGLEY, Plaintiff-Appellee, v. H.K. FERGUSON COMPANY, Third-Party Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LEWIS\ndelivered the opinion of the court:\nThe sole issue presented by the appellant is \u201cwhether the structured settlement entered into by the Plaintiff without the consent of his employer, adequately protects the employer\u2019s lien as imposed by the Worker\u2019s Compensation Act.\u201d\nThe plaintiff, Robert J. Langley, was injured while working for the appellant herein, H.K. Ferguson Company (hereafter referred to as Ferguson), as the general superintendent on a construction project. The plaintiff subsequently brought suit against a number of parties, as described in a prior appeal in this case, Langley v. J.L. Simmons Contracting Co. (1987), 152 Ill. App. 3d 899, 504 N.E.2d 1328. From his workers\u2019 compensation claim against Ferguson, who is a third-party defendant in the suit, the plaintiff received $103,364.03. Ferguson asserted a lien against any judgments or settlements obtained by the plaintiff from third parties (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)). The plaintiff and one of the defendants, Wilbur Waggoner Equipment Rental and Excavating Company (hereafter referred to as Waggoner), negotiated a settlement agreement in the amount of $150,000. In the earlier appeal we determined that, of the settlement with Waggoner, the plaintiff was entitled to retain $46,635.97 and Ferguson was entitled to recoup $103,364.03.\nFollowing the disposition of the prior appeal, Ferguson moved on April 1, 1987, that the trial court enter an order compelling the plaintiff and his attorney to endorse the settlement check issued on behalf of Waggoner. In its motion Ferguson stated that the plaintiff had reached a settlement with Waggoner in the present cash value amount of $150,000, of which $75,000 was to be received as a lump-sum payment and the remaining $75,000 was to be paid by means of an annuity at the rate of $1,000 per month. The annuity was to be paid at that rate for 10 years. Ferguson stated that the amount of the lien recoverable, less attorney fees of 25%, was $77,523.02. Ferguson sought an order requiring endorsement, by plaintiff and his attorney, of the check issued on behalf of Waggoner as a lump-sum payment in the amount of $75,000. Ferguson sought as well an order compelling the plaintiff to make payments to its insurer totaling $2,523.02 from the plaintiff\u2019s next three annuity payments received pursuant to the settlement agreement. On April 30, 1987, the trial court ordered endorsement by the plaintiff of the check in question or, in the event of plaintiff\u2019s failure to comply, reissuance of the check, payable to Ferguson\u2019s insurer and to plaintiff\u2019s attorney. Another check appears to have been issued.\nThereafter, on June 30, 1987, Ferguson moved that the trial court enter an order compelling the plaintiff\u2019s attorney to endorse a check in the amount of $75,000, issued on behalf of Waggoner as the lump-sum payment, to Ferguson\u2019s insurer and plaintiff\u2019s attorney. In the motion Ferguson stated that it had not been a party to the settlement agreement between plaintiff and Waggoner and did not approve the settlement. In the motion Ferguson said:\n\u201cPlaintiff\u2019s attorney contends that he is entitled to [25%] of the [$75,000] check issued by [Waggoner\u2019s insurer]. [Ferguson] does not dispute the fact that Plaintiff\u2019s attorney is entitled, by statute, to [25%] of the [$103,364.03] workers\u2019 compensation lien. However, deduction of that [25%] still leaves [$77,523.02] due and owing as reimbursement to [Ferguson]. Unless the [$75,000] lump sum payment is made payable to the carrier for [Ferguson], the employer, [Ferguson,] will have a cause of action for breach of its statutory lien, to the extent that the lien was not protected in the settlement entered into by the Plaintiff and his attorney, and the third party tortfeasor.\u201d\nIn its motion Ferguson stated as well:\n\u201cThe Court\u2019s Order, compelling Plaintiff\u2019s attorney to endorse the [$75,000] lump sum payment to the carrier for the employer, does not leave Plaintiff\u2019s attorney without protection. [Ferguson] has filed a Non-Wage Garnishment action against the proceeds of the annuity, for the amount in excess of the [$75,000] lump sum payment, up to the full amount of the statutory lien. To the extent that garnishment proceeds can be applied to reimburse Plaintiff\u2019s attorney for the [25%] statutory fee, Plaintiff\u2019s attorney will be protected. However, Plaintiff\u2019s attorney, and not the employer, should be subject to the agreement entered into between the Plaintiff and the third party tortfeasor, which provided for annuity payments over a period of time. [Ferguson] was not a party to the settlement, and therefore reimbursement for its workers\u2019 compensation lien should not be subject to the annuity payment schedule. Plaintiff, and Plaintiff\u2019s attorney, should be subject to the benefit of the bargain which they negotiated, without the participation and approval of the employer.\u201d\nThe trial court subsequently entered an order on July 29, 1987, finding, inter alia, that plaintiff\u2019s counsel had filed the underlying lawsuit on April 5, 1982, and that Ferguson and its insurer had not availed themselves of their rights under section 5(b) of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)) (hereafter referred to as the Act) to file suit, within three months of the action\u2019s being barred, against third parties who may have been responsible for the employee\u2019s injuries. The order required plaintiff\u2019s counsel to endorse the $75,000 check made out to him and to Ferguson\u2019s carrier and commanded payment of 25% of the $75,000 check to plaintiff\u2019s counsel. The court ordered the plaintiff to submit a list of itemized costs for the pro rata assessment of costs pursuant to section 5(b) of the Act and further ordered Ferguson and its insurer to pay 25% of all subsequent sums received as installments or payment on the workers\u2019 compensation lien to the plaintiff\u2019s attorney \u201cuntil the $103,364.03 has been recovered.\u201d\nThereafter Ferguson moved that the court reconsider this order entered on July 29, 1987. Ferguson stated that plaintiff\u2019s attorney had been paid 25% of the $75,000 but that the amount of $28,364.03 of the lien remained unpaid. Ferguson asserted that the plaintiff was at that time receiving $1,000 per month \u201cin derogation and in violation of the worker\u2019s compensation lien\u201d held by it and that it had filed a garnishment against the plaintiff and Waggoner\u2019s carrier to recover the $28,364.03 still subject to the lien. Ferguson asserted further:\n\u201cTo the extent that Plaintiff\u2019s attorney has failed to protect the worker\u2019s compensation lien, in the amount of [$28,364.03, Ferguson] is required through its attorneys to seek a garnishment judgment for said annuity payments, which, if successful, will result in payments of [$1,000] per month, for a period of [28] months, and an additional payment in the amount of [$364.03].\n*** To the extent that said garnishment action must be taken, Plaintiff\u2019s attorney has done nothing to protect the worker\u2019s compensation lien of [Ferguson], and said [Ferguson] has been required to retain its own counsel for recovery of said amount.\n*** As a result of the foregoing, Plaintiff\u2019s attorney has not obtained a recovery of the worker\u2019s compensation lien, at least to the extent of [$28,364.03], and in fact has breached the statutory duties imposed by the Worker\u2019s Compensation Act.\u201d\nIn this motion Ferguson sought reconsideration by the trial court of that part of its order requiring payment of attorney fees on those sums received as installments after payment of the lump sum of $75,000. Ferguson sought\n\u201can Order that while [Ferguson] is required to pay attorneys\u2019 fees for that portion of the compensation lien protected by Plaintiff\u2019s attorney, it is not required to pay attorney\u2019s fees for that portion of the worker\u2019s compensation lien which has not been protected, and which requires retention of separate counsel.\u201d\nOn September 25, 1987, the trial court denied Ferguson\u2019s motion to reconsider its order, and this appeal followed.\nIn its brief Ferguson argues that\n\u201c[a] problem arises because the [$150,000] settlement figure reflects the present cash value of a structured settlement, to be paid over time. The actual payments to be made over the life of the structure, which reflect the true value of the payments involved, total [$195,000] ([$75,000] plus [$1,000] per month for [120] months). Reimbursement to the employer for its lien over time does not adequately protect the employer\u2019s rights.\u201d\nFor this proposition Ferguson relies on Mounce v. Tri-State Motor Transit Co. (1986), 150 Ill. App. 3d 806, 502 N.E.2d 53. Ferguson maintains that, under Mounce, section 5(b) of the Act requires either the consent of the employer or an order of the court protecting the employer\u2019s lien, neither of which, Ferguson says, occurred here. Ferguson contends that the order of the trial court\n\u201cis deficient on at least two separate grounds. First, the structured settlement itself does not adequately protect the employer\u2019s lien under Section 5(b) of the Act. Even if Ferguson is able to collect from the annuity payments made under the structure, full reimbursement will not be accomplished when the sums ultimately realized are discounted to their present value. Second, the court\u2019s Order requires payment of [25%] of any funds recovered by Ferguson, in its Non-Wage Garnishment action, to Plaintiff\u2019s attorney. The Order ignores the fact that Plaintiff\u2019s attorney failed in his duty to protect the employer\u2019s lien, and ignores that[,] as a result, Ferguson has been required to bring action for recovery of the annuity payments itself.\nIt is not disputed that Plaintiff\u2019s attorney is entitled by statute to [25%] of the amount properly reimbursed to the employer in protection of its lien.\u201d\nThus, Ferguson does not, as it did in the trial court, dispute payment of attorney fees from the $75,000 lump-sum payment but, rather, maintains that no attorney fees are due plaintiff\u2019s attorney on $28,364.03, which is the amount of its lien\n\u201cuncollected, as a direct result of the failure of the Plaintiff and the Court to properly protect the employer. Those funds can only be collected over time, and therefore full reimbursement cannot be accomplished. To the extent those funds are collected, such collection will not be the result of any efforts on the part of the Plaintiff\u2019s attorney, and he should not be entitled to compensation.\u201d\nFerguson asks us to reverse that part of.the trial court\u2019s order requiring it to pay plaintiff\u2019s attorney 25% of any further recovery of its workers\u2019 compensation lien over and above the lump-sum payment of $75,000.\nPlaintiff responds that the fund from which Ferguson is recovering its workers\u2019 compensation lien was obtained through the efforts of his own counsel. Plaintiff states in his brief that Ferguson was present by counsel during some of plaintiff\u2019s negotiations for settlement with Waggoner as well as during the trial court\u2019s proceedings finding the settlement to have been made in good faith. Plaintiff argues that \u201c[a]t no time did [Ferguson\u2019s] counsel object to the settlement as inadequately protecting [Ferguson\u2019s] workmen\u2019s compensation lien.\u201d Plaintiff cites us to certain pages of the trial transcript; however, the trial transcript has not been made available to us as part of the record upon review. Plaintiff relies primarily upon the recent case of Murray v. Lincolnshire Group, Ltd. (1988), 167 Ill. App. 3d 978, 522 N.E.2d 96.\nSection 5(b) of the Act provides in pertinent part:\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 Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b).\nIn order to deprive an attorney of fees under section 5(b), there must be another agreement between the employer or his workers\u2019 compensation carrier and the employee or his attorney. (Murray, 167 Ill. App. 3d 978, 522 N.E.2d 96; Lewis v. Riverside Hospital (1983), 116 Ill. App. 3d 845, 452 N.E.2d 611; Kimpling v. Canty (1973), 13 Ill. App. 3d 919, 300 N.E.2d 839.) The words \u201cin the absence of other agreement\u201d have been construed by Illinois courts to refer to an agreement between the employer and the employee or his attorney. (Lewis, 116 Ill. App. 3d 845, 452 N.E.2d 611; Vandygriff v. Commonwealth Edison Co. (1979), 68 Ill. App. 3d 396, 386 N.E.2d 318; Kimpling, 13 Ill. App. 3d 919, 300 N.E.2d 839.) When an employee\u2019s attorney substantially contributes to a settlement reached with a third-party tortfeasor and the employer\u2019s insurer is reimbursed out of the proceeds of that settlement, in the absence of other agreement between the employer and the employee or his attorney, the insurer must, pursuant to section 5(b), pay the attorney \u201c25% of the gross amount of such reimbursement.\u201d (Murray, 167 Ill. App. 3d 978, 522 N.E.2d 96; Mounce, 150 Ill. App. 3d 806, 502 N.E.2d 53.) Furthermore, the legisl\u00e1tive purpose of section 5(b) is to ensure that employers pay their fair share of the cost of recovering benefits derived by them from their employee\u2019s tort recoveries against third parties. Murray, 167 Ill. App. 3d 978, 522 N.E.2d 96; Griffin v. Dillinger (1983), 117 Ill. App. 3d 213, 452 N.E.2d 851.\nWe find no basis in the law to support Ferguson\u2019s contention that plaintiff\u2019s counsel is not entitled to attorney fees with respect to the amount of $28,364.03 because of alleged failure to protect Ferguson\u2019s workers\u2019 compensation lien in that amount. Ferguson does not suggest that another agreement existed between it or its carrier and the plaintiff or his attorney. Unquestionably, the plaintiff\u2019s attorney substantially contributed to the settlement reached with Waggoner, from which Ferguson has recovered sizable benefits. Although Ferguson asserts that plaintiff\u2019s counsel is not entitled to the attorney fees in question because he failed in his alleged duty to protect the employer\u2019s lien, we note the observation of the court in Mounce that \u201c[section 5(b) of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)) provides that the duty of protecting the employer\u2019s lien lies with the court\u201d (Mounce, 150 Ill. App. 3d at 810, 502 N.E.2d at 56). We note too that employers\u2019 attorneys often represent interests that are somewhat different from those of employers in cases such as this (Murray, 167 Ill. App. 3d 978, 522 N.E.2d 96; Page v. Hibbard (1986), 142 Ill. App. 3d 788, 491 N.E.2d 1374, aff\u2019d in part and rev\u2019d in part on other grounds (1987), 119 Ill. 2d 41, 518 N.E.2d 69). Indisputably Ferguson must pay its fair share of the cost of recovering the benefits it has recovered. It cites neither law nor policy that justifies excusing it from paying the fee statutorily imposed for the services and benefits it has received.\nFerguson has not asked us on review to determine whether the settlement ought to be restructured for failure to provide it with full reimbursement when the amounts to be received as installments are discounted to their present value. Therefore, we do not consider that question.\nAffirmed.\nGOLDENHERSH and HOWERTON, JJ., concur.", "type": "majority", "author": "JUSTICE LEWIS" } ], "attorneys": [ "Stephen J. Maassen, of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for appellant.", "Robert D. Larson, of Smith, Larson, Pitts, Walters & Metz, Ltd., of East Alton, for appellee." ], "corrections": "", "head_matter": "ROBERT J. LANGLEY, Plaintiff-Appellee, v. H.K. FERGUSON COMPANY, Third-Party Defendant-Appellant.\nFifth District\nNo. 5\u201487\u20140722\nOpinion filed August 2, 1989.\nStephen J. Maassen, of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for appellant.\nRobert D. Larson, of Smith, Larson, Pitts, Walters & Metz, Ltd., of East Alton, for appellee." }, "file_name": "1036-01", "first_page_order": 1058, "last_page_order": 1064 }