{
  "id": 3307392,
  "name": "MELVIN VANDYGRIFF, Plaintiff-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant.-(GUST K. NEWBERG CONSTRUCTION CO., Intervenor-Appellant.)",
  "name_abbreviation": "Vandygriff v. Commonwealth Edison Co.",
  "decision_date": "1979-01-08",
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  "last_updated": "2023-07-14T14:49:10.381789+00:00",
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    "judges": [],
    "parties": [
      "MELVIN VANDYGRIFF, Plaintiff-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant.\u2014(GUST K. NEWBERG CONSTRUCTION CO., Intervenor-Appellant.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nMelvin Vandy griff (plaintiff) sued Commonwealth Edison Company (Edison) seeking damages for injuries he suffered while employed by Gust K. Newberg Construction Co. (Newberg) on Edison\u2019s construction site. When Edison and plaintiff agreed to settle their suit for *260,000, Newberg intervened to protect its reimbursement rights for workmen\u2019s compensation benefits it had been ordered to pay plaintiff. The trial court dismissed the suit and adjudicated all disbursements and liens. Newberg appeals, arguing that the trial court erred in reducing its credit for future workmen\u2019s compensation payments by requiring Newberg to pay plaintiff\u2019s attorneys a 40% fee based on plaintiff\u2019s contract with his attorneys, not the statutory 25% fee.\nNewberg contends that plaintiffs attorneys are limited to the 25% fee provided for in the Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(b)). We agree. The statute provides in relevant 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\nIn Railkar v. Boll (1970), 125 Ill. App. 2d 203, 260 N.E.2d 851, plaintiff\u2019s attorney contended that he should receive 50% of the employer\u2019s recovery from the third-party tortfeasor because his client had agreed to such a fee. The appellate court reasoned that plaintiff\u2019s fee contract does not determine the fee the employer pays because the Workmen\u2019s Compensation Act provision for a 25% fee is the sole basis for a fee recovery against the employer where there is no contractual relationship between the employee or his attorney and the employer. (125 Ill. App. 2d 203, 206, 260 N.E.2d 851, 853.) Similarly, in Kimpling v. Canty (1973), 13 Ill. App. 3d 919, 300 N.E.2d 839, the employee\u2019s attorney asserted that the phrase \u201cin the absence of other agreement\u201d in section 5(b) referred to his contract with the employee which provided for a fee of one-third of any recovery and that his contract should determine the fee the employer should pay him. The employer contended that the phrase referred to a contract between it and the employee or his attorney. The court agreed with the employer, stating:\n\u201cConsidering the context in which it is used, the phrase \u2018in the absence of other agreement\u2019 must refer to an agreement between the employer-intervenor and the employee or his attorney. The phrase immediately precedes and explains when \u2018the employer shall pay such attorney 25% of the gross amount of such reimbursement.\u2019 0 \u00b0 (13 Ill. App. 3d 919, 922, 300 N.E.2d 839, 841.)\nClearly, in the present case the plaintiff\u2019s attorneys\u2019 fees for obtaining reimbursement for Newberg must be based on the 25% statutory fee and not the plaintiffs contract with his attorneys.\nThe amount on which the 25% fee is to be paid is also in dispute. Newberg contends that the fee should be based on the amount of the settlement less the amount of workmen\u2019s compensation benefits it paid to plaintiff. Plaintiff argues that the fee should be based on the total amount of the settlement with Edison. We agree with plaintiff.\nThe trial court\u2019s order provided in pertinent parts:\n\u201cIT IS ORDERED that the defendant, COMMONWEALTH EDISON COMPANY, pay to the Gust K. Newberg Construction Company the total amount of their lien which is *15,447.22.\n# # #\nIt further appearing that the law firm of Cooney and Stenn and the law firm of Raymond L. Lannon has expended *3,228.94 in the preparation of this claim of MELVIN V ANDY GRIFF v. COMMONWEALTH EDISON COMPANY.\n# # e\nIt further appearing that the plaintiff, MELVIN VANDYGRIFF, has entered into a contract with the law firms of Cooney and Stenn and Raymond L. Lannon in which he agreed to pay legal fees in the amount of 40% in the event that suit is filed, and it appearing that the plaintiff after deducting legal fees of 40%, deducting court costs of *3,228.94 and deducting the *15,447.22, which is to be paid back to the Gust K. Newberg Construction Company, there remains a net figure of *137,323.84.\nIT IS FURTHER ORDERED that as of the present the Gust K. Newberg Construction Company shall not be required to pay any further payments under the workmen\u2019s compensation act.\nIT IS FURTHER ORDERED that they shall be given credit for any payments which they may be obligated to pay by way of permanent total disability payments or future medical payments until such sums or obligations or bills shall have reached the total amount of *137,323.84.\u201d\nIn Railkar v. Boll (1970), 125 Ill. App. 2d 203, 260 N.E.2d 851, the plaintiff\u2019s employer and its compensation insurer intervened, contending inter alia that the statutory fee is limited to 25% of the amount reimbursed to the employer. The employee\u2019s attorney contended that the gross amount of the personal injury judgment should be the basis of the fees. The court found that section 138.5(b) should be read to apply the fee to 25% of the entire subrogation fund, that is, the entire amount of the judgment against the third-party tortfeasor. (125 Ill. App. 2d 203, 209-10, 260 N.E.2d 851, 854.) See Kimpling v. Canty (1973), 13 Ill. App. 3d 919, 922, 300 N.E.2d 839, 841.\nWe conclude that plaintiffs attorneys\u2019 fees should be computed at 25% of the *260,000 total settlement. See Hardwick v. Munsterman (1959), 15 Ill. 2d 564, 567, 155 N.E.2d 638, 641.\nThe order of the circuit court is reversed as to attorneys\u2019 fees and Newberg\u2019s credit and remanded for the entry of an order that Newberg shall be given credit for any payments which they may be obligated to pay by way of permanent total disability payments or future medical payments until such sums or obligations or bills shall have been paid in full, but not to exceed the total of *176,323.84, computed as follows: Total settlement of *260,000.00\nLess:\nWorkmen\u2019s compensation already paid *15,447.22\nCosts 3,228.94\nAttorneys\u2019 fees (25% of\n*260,000.00) 65,000.00\n83,676.16\n*176,323.84.\nReversed and remanded with directions.\nGOLDBERG, P. J., and McGLOON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE O\u2019CONNOR"
      }
    ],
    "attorneys": [
      "Lord, Bissell & Brook, of Chicago (Hugh C. Griffin and Norman J. Lerum, II, of counsel), for appellant.",
      "Cooney and Stenn, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "MELVIN VANDYGRIFF, Plaintiff-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant.\u2014(GUST K. NEWBERG CONSTRUCTION CO., Intervenor-Appellant.)\nFirst District (1st Division)\nNo. 78-152\nOpinion filed January 8, 1979.\nLord, Bissell & Brook, of Chicago (Hugh C. Griffin and Norman J. Lerum, II, of counsel), for appellant.\nCooney and Stenn, of Chicago, for appellee."
  },
  "file_name": "0396-01",
  "first_page_order": 418,
  "last_page_order": 421
}