{ "id": 5189082, "name": "ROGER PEREZ et al., Plaintiffs-Appellees, v. CINDY KUJAWA, Defendant-Appellee (Insurance Company of Illinois, Appellant)", "name_abbreviation": "Perez v. Kujawa", "decision_date": "1992-09-11", "docket_number": "No. 1\u201491\u20144109", "first_page": "957", "last_page": "962", "citations": [ { "type": "official", "cite": "234 Ill. App. 3d 957" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "304 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461013 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0706-01" ] }, { "cite": "453 N.E.2d 1163", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1164" }, { "page": "1166" } ], "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482909 ], "weight": 3, "pin_cites": [ { "page": "896" }, { "page": "900" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0895-01" ] }, { "cite": "470 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "7" }, { "page": "9" } ], "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524451 ], "weight": 5, "year": 1983, "pin_cites": [ { "page": "122" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0121-01" ] }, { "cite": "361 N.E.2d 1100", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "66 Ill. 2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463533 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/66/0119-01" ] } ], "analysis": { "cardinality": 514, "char_count": 10542, "ocr_confidence": 0.789, "pagerank": { "raw": 1.6711403053577176e-07, "percentile": 0.6959778350011911 }, "sha256": "a8fa1f1fa0acca98648542b5a8e34d32b92f0fef5c743d163f344764bebcc0f2", "simhash": "1:ab3c0ce02e72be62", "word_count": 1666 }, "last_updated": "2023-07-14T17:59:47.941433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROGER PEREZ et al., Plaintiffs-Appellees, v. CINDY KUJAWA, Defendant-Appellee (Insurance Company of Illinois, Appellant)." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nA lienholder, Insurance Company of Illinois (ICI), appeals from an order of the circuit court of Cook County which reduced its medical payments subrogation lien by one-third under the \u201cfund doctrine.\u201d This litigation arose out of a February 1987 car accident in which plaintiffs, Roger J. Perez and Peter P. Sannasardo, were allegedly injured by an automobile driven by defendant, Cindy Kujawa. Perez was a named insured under an automobile policy by ICI that provided medical payments coverage. Defendant was insured by State Farm Insurance Company.\nPlaintiffs originally consulted with attorney Ron Strojny, and Id's initial contacts regarding plaintiffs\u2019 claim were with Strojny. By certified letter dated March 10, 1987, ICI notified Strojny as follows:\n\u201c[ICI] will represent its own subrogation interests as to medical payments advanced or to be advanced to the insureds. This Company, therefore, neither solicits your services to represent it in this regard nor will it recognize any lien upon the subrogation amount claimed under the \u2018Fund Doctrine\u2019 for services gratuitously given.\u201d\nThe receipt indicates that Strojny\u2019s office received the letter on March 11,1987.\nOn the same date, ICI informed defendant\u2019s carrier, State Farm, by certified mail of its subrogation claim, and its determination to collect, and that ICI represented itself and did not retain the services of an attorney representing its insured. The letter further stated:\n\u201cThis Company expressly disavows any authority, apparent or otherwise, for such counsel to conduct negotiations on its behalf. Counsel representing the insured has similarly been advised of our position in this matter.\u201d\nICI at the same time informed both plaintiffs by letter that ICI had a subrogation lien regarding the medical payments.\nOn April 23, 1987, attorney Raymond P. Concannon, on plaintiffs\u2019 behalf, filed suit against Kujawa. By letter dated May 11, 1987, to ICI, Concannon requested payment of $2,353 on behalf of \u201cour clients and your insureds\u201d for benefits under the medical payments provision. The letter stated that Concannon \u201cclaim[ed] an attorneys\u2019 lien on these funds.\u201d On June 8, 1987, ICI sent Concannon a letter reiterating the position it had taken in its letter to Strojny. On July 25, 1987, Concannon filed plaintiffs\u2019 answers to interrogatories. On July 23, 1987, Concannon filed several discovery requests and responded to defendant\u2019s affirmative defense and production request.\nIn July 1987, plaintiffs received $2,353 ($1,303 to Perez and $1,050 to Sannasardo) pursuant to the medical payments provisions of the insurance policy. In January 1991, Perez and Sannasardo settled with Kujawa\u2019s insurer for $6,500 and $4,500, respectively. Subsequently, according to plaintiffs, Concannon offered ICI $869 and $700, respectively, representing two-thirds of the insurer\u2019s subrogation lien. ICI refused the offer, demanding 100% of the subrogation lien.\nOn October 29, 1990, plaintiffs, through Concannon, filed a petition to adjudicate ICI\u2019s subrogation lien by reducing the amount thereof by one-third. The trial court granted Concannon\u2019s petition and reduced ICI\u2019s lien from $2,353 to $1,569, relying upon Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 361 N.E.2d 1100. ICI appeals from this order.\nThe sole issue on appeal is whether ICI, the medical payments subrogee, is entitled to 100% of its subrogation lien.\nThe trial court applied the \u201cfund doctrine\u201d and ruled in plaintiffs\u2019 favor. The \u201cfund doctrine\u201d is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from those who seek to benefit from the creation of the fund. (Baier v. State Farm Insurance Co., 66 Ill. 2d 119, 361 N.E.2d 1100.) In order to obtain a judgment for attorney fees for a subrogee under this doctrine, plaintiff must show that (1) the fund was created as a result of legal services performed by an attorney employed by him; (2) the subrogee did not participate in the creation of the fund; and (3) the subrogee benefited from the fund. (Tenney v. American Family Mutual Insurance Co. (1984), 128 Ill. App. 3d 121, 470 N.E.2d 6; Powell v. Inghram (1983), 117 Ill. App. 3d 895, 453 N.E.2d 1163.) A plaintiff, however, may not recover attorney fees under the doctrine while rendering services for an unwilling recipient. Tenney v. American Family, 128 Ill. App. 3d 121, 470 N.E.2d 6.\nUpon review, we conclude under these facts and circumstances that the equitable fund doctrine did not justify an award of attorney fees to plaintiffs out of the subrogation lien.\nWe find Tenney instructive. Tenney arose out of an automobile accident in which Barbara Spencer\u2019s vehicle struck Robin Moore\u2019s vehicle. Moore\u2019s insurer, American Family Mutual Insurance Company, advised her by letter dated October 29, 1981, of its subrogated lien to the extent of medical payments advanced, and its intention to deal directly with Spencer\u2019s insured on the subrogation claim. The carrier similarly informed Spencer and her insurer of its intention to collect. On February 25, 1982, Moore\u2019s insurer \u201cexpressly notified [Harold Tenney, Moore\u2019s attorney] that he was not to collect the subrogation claim.\u201d (Tenney, 128 Ill. App. 3d at 122, 470 N.E.2d at 7.) Nine months later, Tenney filed suit on Moore\u2019s behalf against Spencer, and the parties settled the claim shortly thereafter. Tenney then filed suit against American Family for legal fees and expenses incurred in recovering on the subrogation claim, and the trial court entered judgment in his favor. On appeal, this court held that the fund doctrine did not apply \u201c[u]nder the circumstances\u201d of the case. (Tenney, 128 Ill. App. 3d at 125, 470 N.E.2d at 9.) The court relied upon the fact that Tenney knew soon after he began representing Moore that the carrier did not want him to collect the subrogation claim and would not pay him if he did so. This court accordingly reversed the judgment which had been entered in favor of Tenney.\nAs in Tenney, ICI promptly and unequivocally informed Strojny, the attorney then representing plaintiffs, of its subrogation lien and disclaimed any intention to employ the insured\u2019s attorney for this purpose. Nevertheless, six weeks later, Concannon filed suit on plaintiffs\u2019 behalf. In our view, Strojny\u2019s referral of plaintiffs\u2019 case to Concannon after being so notified does not distinguish this case from Tenney. ICI initially dealt only with Strojny regarding plaintiffs\u2019 claim, and it did not learn about the referral until Concannon filed suit on April 23, 1987.\nPlaintiffs urge that the fund doctrine controls this case because Concannon filed suit before ICI sent him a \u201cTenney letter\u201d on June 8, 1987. We find this position to be without merit. ICI timely and sufficiently informed Strojny of its intention to represent its own subrogation claim, and we believe that such notice was chargeable to Concannon. (See Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 304 N.E.2d 733.) In our view, equity would not be served by allowing plaintiffs\u2019 employment of substitute counsel to subject ICI to attorney fees after ICI sufficiently notified Strojny and Kujawa\u2019s insurer of its intention to represent its own subrogation interests. Under Illinois law, ICI had the right to file suit on its own behalf for its subrogation claim (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014403; Tenney v. American Family, 128 Ill. App. 3d 121, 470 N.E.2d 6), and we believe that ICI\u2019s efforts to preserve this right were sufficient under these facts. As in Tenney, it would be inequitable to apply the fund doctrine here.\nNor does Powell v. Inghram, upon which plaintiffs rely, require a different conclusion. In Powell, plaintiff signed a subrogation agreement with defendant insurance company, requiring her to pay the insurer for any recovery received by judgment or settlement. Plaintiff\u2019s attorney filed suit several months before any correspondence with the insurance company, seeking the total amount of damages arising from the tort. Ten months later, plaintiff submitted a claim to her insurance company for medical expenses. The insurer notified plaintiff\u2019s attorney of its subrogation lien, and disclaimed any intention of employing him to collect the lien. The insurer, however, requested the attorney to \u201cprotect [its] interests\u201d in the event of a settlement. (Powell, 117 Ill. App. 3d at 896, 453 N.E.2d at 1164.) This court held that the insurance company\u2019s refusal to hire the plaintiff\u2019s attorney while seeking to benefit from his services was a \u201csituation most suitable for the application of the fund doctrine.\u201d Powell, 117 Ill. App. 3d at 900, 453 N.E.2d at 1166.\nPowell differs significantly from this case. Unlike Powell, where the insurer requested plaintiff\u2019s attorney to \u201cprotect\u201d its interests, ICI here unequivocally advised plaintiffs and their attorneys, first Strojny and later Concannon, of its intention to pursue its own subrogation lien. ICI disclaimed any intention of employing plaintiffs\u2019 attorney and promptly advised Strojny and defendant\u2019s insurer. Moreover, unlike Powell, where the insurer informed plaintiff\u2019s attorney that he would not be retained as counsel 10 months after plaintiff filed suit, ICI promptly notified plaintiffs\u2019 attorney of its intention to pursue its own subrogation claim. Powell thus differs and does not support plaintiffs\u2019 position.\nWe do not interpret Tenney to preclude application of the fund doctrine whenever an insurer notifies its insured or an attorney representing its insured of its intention to pursue its own subrogation interests. Nor do we so hold. Rather, under the circumstances of this case, as in Tenney, it would be inequitable to apply the fund doctrine.\nAccordingly, we vacate that portion of the order of the circuit court of Cook County reducing ICI\u2019s subrogation lien from $2,353 to $1,569, and direct the circuit court to enter judgment in favor of ICI for $2,353.\nOrder vacated in part and cause remanded with directions.\nEGAN, P.J., and RAKOWSKI, J., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "James M. Dupree, of Chicago, for appellant.", "Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon, Michael P. Concannon, and Jeffrey M. Burkart, of counsel), for appellees." ], "corrections": "", "head_matter": "ROGER PEREZ et al., Plaintiffs-Appellees, v. CINDY KUJAWA, Defendant-Appellee (Insurance Company of Illinois, Appellant).\nFirst District (6th Division)\nNo. 1\u201491\u20144109\nOpinion filed September 11, 1992.\nJames M. Dupree, of Chicago, for appellant.\nRaymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon, Michael P. Concannon, and Jeffrey M. Burkart, of counsel), for appellees." }, "file_name": "0957-01", "first_page_order": 977, "last_page_order": 982 }