{
  "id": 5365471,
  "name": "METTE JORGENSEN, Plaintiff-Appellee, v. DIANA WHITESIDE et al., Defendants (Zurich-Denmark Insurance Company, Intervenor-Appellant)",
  "name_abbreviation": "Jorgensen v. Whiteside",
  "decision_date": "1994-03-03",
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  "casebody": {
    "judges": [],
    "parties": [
      "METTE JORGENSEN, Plaintiff-Appellee, v. DIANA WHITESIDE et al., Defendants (Zurich-Denmark Insurance Company, Intervenor-Appellant)."
    ],
    "opinions": [
      {
        "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nThese consolidated appeals are brought by Zurich-Denmark Insurance Company (hereinafter Zurich) seeking to enforce a lien against a judgment awarded to plaintiff in her underlying action against the named defendants. Zurich intervened in plaintiff\u2019s lawsuit and following trial plaintiff was awarded $3.4 million. Thereafter, Zurich sought to enforce its lien and later filed a motion for summary judgment which the trial court denied. Zurich appeals the trial court\u2019s denial of its summary judgment motion.\nWe reverse and remand.\nThe facts involved in plaintiff\u2019s underlying action are detailed in this court\u2019s opinion in Jorgensen v. Whiteside (1992), 233 Ill. App. 3d 783. We will not unnecessarily recite the facts of the case; rather, what follows is a summary of facts pertinent to this appeal.\nOn January 10, 1988, plaintiff, Mette Jorgensen, was injured when hit by a shuttle bus at O\u2019Hare International Terminal Airport in Chicago. She filed a personal injury action against several defendants seeking damages for her injuries. While plaintiff\u2019s case was pending, she filed a claim with Zurich under a traveller\u2019s insurance policy issued to her in Denmark in 1987. On July 7, 1988, Zurich sent her a check for $47,255 accompanied by a letter which read in part as follows:\n\"Payment is made under the condition that Zurich will recover if and when the insured receives any amount from any liable party.\u201d\nOn February 16, 1989, Zurich sought leave to file a petition to intervene and asserted lien rights to a portion of any recovery made by plaintiff based on the terms and conditions of the insurance policy. The trial court granted Zurich leave to intervene in a written order which stated, inter alia, \"[t]hat this court shall protect the lien rights of Zurich Insurance Company.\u201d Thereafter, plaintiff\u2019s case proceeded to trial and the jury awarded her $3,400,041.17. On November 5, 1990, the trial court entered judgment on the verdict and stated in a written order that the judgment disposed of all pending matters.\nOn February 19, 1991, Zurich filed an affidavit in support of its claim for recovery of the $47,255 previously paid to plaintiff. On March 11, 1991, Zurich filed an emergency motion to stay distribution of the proceeds arising from any possible settlement agreement between plaintiff and the defendants or, in the alternative, that $47,255 be placed in escrow to be paid in accordance with the trial court\u2019s ruling on Zurich\u2019s right of subrogation. In an agreed order, the trial court granted Zurich\u2019s motion and ordered that \"Zurich\u2019s lien *** be protected until the rights of the parties under the lien be adjudicated.\u201d\nOn May 6, 1991, plaintiff filed a motion to strike Zurich\u2019s lien, arguing that Zurich neither appeared at trial nor presented any evidence therein. The trial court denied plaintiff\u2019s motion. Subsequently, the parties engaged in discovery proceedings during which Mogen Bach, a licensed attorney in Denmark, was deposed and testified that Zurich had a right of subrogation under the insurance policy to the extent that it had previously compensated plaintiff in accordance with the policy. Bach, whose law practice in litigation related to insurance and transport law, based his opinion on plaintiff\u2019s insurance contract and applicable Danish law.\nOn May 26, 1992, Zurich filed a motion for summary judgment. In response, plaintiff filed a motion to strike, alleging the court lacked jurisdiction to entertain Zurich\u2019s motion. Plaintiff also alleged that Zurich failed to take the proper action to be entitled to any money plaintiff received as a result of the judgment in the underlying suit. Following a hearing on June 4, 1992, the trial court found that no lien existed and denied Zurich\u2019s motion for summary judgment. The trial court reasoned that Zurich waited too long to attempt to perfect its lien and thereby prejudiced plaintiff, who was entitled to the money under a court order.\nZurich filed a notice of appeal on July 2, 1992, believing the trial court\u2019s order to be final. Zurich later appeared before the trial court on July 8, 1992, seeking clarification of the June 4, 1992, order. At this hearing, the trial court stated its order meant that either the lien never existed or was unenforceable. Zurich subsequently filed a second notice of appeal which this court consolidated with the notice of appeal previously filed.\nOn appeal, Zurich asserts that the trial court improperly denied the motion for summary judgment. Summary judgment should be granted where the pleadings, depositions, admissions and affidavits reveal that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1005(c).) Our review of the evidence convinces us that no issues of material fact existed which precluded the trial court from granting Zurich\u2019s motion.\nFirst, we believe that Zurich\u2019s lien did exist. This is so based on the trial court\u2019s written orders which recognized the existence of the lien. We agree with Zurich that it was entitled to rely on the trial court\u2019s order that it would protect the lien, especially since plaintiff never objected to the trial court\u2019s orders or the existence of the lien prior to March 11, 1991. We note that a trial court may properly create a lien based on either an explicit or implicit agreement between two parties. (Freer v. Hysan Corp. (1985), 108 Ill. 2d 421, 427.) Zurich\u2019s letter dated July 7, 1988, which accompanied the $47,255 check to plaintiff, who subsequently cashed the check without objection, sufficiently supports the finding of an implicit agreement between the parties. Likewise, the insurance contract, as interpreted by attorney Bach, also supports a finding that Zurich was entitled to recover the insurance proceeds paid to plaintiff. Consequently, the evidence supports the trial court\u2019s creation of Zurich\u2019s lien.\nIn denying Zurich\u2019s motion for summary judgment, the trial court reasoned that it lacked jurisdiction to entertain the motion since 30 days had passed following the entry of the final order. Likewise, in defense of this appeal, plaintiff maintains that Zurich should have filed a post-trial motion pursuant to section 2 \u2014 1202 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1202). We cannot agree.\nIn Jackson v. Polar-Mohr (1983), 115 Ill. App. 3d 571, the court held that section 2 \u2014 1202, as it pertains to post-trial motions, concerns trial errors to be raised by a litigant. (Polar-Mohr, 115 Ill. App. 3d at 573.) There, the plaintiff argued that the intervening party\u2019s failure to file a post-trial motion pursuant to section 2 \u2014 1202 within 30 days after judgment was entered was fatal to its claim on appeal. Here, as in Polar-Mohr, section 2 \u2014 1202 does not apply since the issue of Zurich\u2019s lack of timeliness in attempting to perfect its lien did not constitute trial error, but, rather, a collateral claim asserted by intervening party. Polar-Mohr, 115 Ill. App. 3d at 573.\nPlaintiff also insists that Zurich\u2019s motion for summary judgment was properly denied because of its failure to file any pleadings with its petition to intervene as required by section 2 \u2014 408(e) of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 408(e).) Undoubtedly, all defects in the pleadings which are not objected to in the trial court are considered waived. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 612(c).) In the case at bar, plaintiff did not object in the trial court to Zurich\u2019s motion to intervene or the granting thereof. Hence, we hold that plaintiff has waived any argument on Zurich\u2019s failure to comply with the procedural requirements of section 2 \u2014 408.\nLastly, Supreme Court Rule 366 provides that, on appeal, a reviewing court may, in its discretion, \"enter any judgment and make any order that ought to have been given.\u201d (134 Ill. 2d R. 366(a)(5).) Because we believe the trial court improperly denied Zurich\u2019s motion for summary judgment, the judgment of the trial court is reversed. Pursuant to this court\u2019s authority under Supreme Court Rule 366, we enter an order requiring plaintiff to pay Zurich $47,255 less any sums as determined by the trial court on remand to be due to plaintiff as Zurich\u2019s proportionate share of attorney fees and costs incurred in the prosecution of plaintiff\u2019s action. See Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119.\nAccordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent herewith.\nReversed and remanded.\nHOFFMAN, P.J., and CAHILL, J\u201e concur.",
        "type": "majority",
        "author": "JUSTICE JOHNSON"
      }
    ],
    "attorneys": [
      "Tressler, Soderstrom, Maloney & Priess, of Chicago (Francis A. Spina, of counsel), for appellant.",
      "John D. Cooney, of Cooney & Conway, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "METTE JORGENSEN, Plaintiff-Appellee, v. DIANA WHITESIDE et al., Defendants (Zurich-Denmark Insurance Company, Intervenor-Appellant).\nFirst District (4th Division)\nNos. 1\u201492\u20142351, 1\u201492\u20142527 cons.\nOpinion filed March 3, 1994. \u2014\nRehearings denied May 26, 1994, and July 14, 1994. \u2014\nModified opinion filed June 2, 1994.\nTressler, Soderstrom, Maloney & Priess, of Chicago (Francis A. Spina, of counsel), for appellant.\nJohn D. Cooney, of Cooney & Conway, of Chicago, for appellee."
  },
  "file_name": "0998-01",
  "first_page_order": 1016,
  "last_page_order": 1020
}