The opinion of the court was delivered by: Perry, District Judge.
Plaintiff, Sam Pagano, sustained accidental injuries during the
course of his employment in February, 1953, and eventually was
paid the sum of $15,299.73 by the defendant under the provisions
of the Illinois Workmen's Compensation Act, S.H.A.Ill. ch. 48, §
138.1 et seq. Of this total sum, $9,426.80 was paid for temporary
total benefits and specific loss of a percentage of limb and
$5,872.93 for medical and surgical services.
Under the appropriate provisions of the Illinois Workmen's
Compensation Act, the plaintiff Pagano subsequently sued the
third party under his common law remedy and recovered a judgment
for $22,500 which was appealed and affirmed in the Appellate
Court of Illinois.
The injured plaintiff and the attorney bring this action
against the defendant and seek distribution of the sum of
$23,945.32 which represents the amount of the judgment with
accrued interest. The attorney contends that the customary
contingent fee for services rendered in the personal injury case
with an appeal amounts to 50% of the sum recovered. The
defendant, on the other hand, insists that there was no agreement
between itself and the attorney for any amount over the one-third
contingent fee contract.
This Court has carefully considered the evidence and
specifically finds that the attorney not only was allowed to
proceed with the appeal without an early objection from the
defendant which had full knowledge of the attorney's position in
this matter, but also that the defendant actually financed the
printing costs of the appeal. Since the attorney has rendered the
service, he is entitled to recover 50% of the total judgment in
accordance with the customary fee in this type of case which this
Court finds to be a fact.
The plaintiff further contends that the defendant is entitled
to only the sum of $9,426.80. It is the plaintiff's position that
under the Illinois Workmen's Compensation Act as applicable to
this action, "compensation paid" did not include medical and
surgical services. It is significant to note that the Act has
since been amended and specifically provides that compensation
includes medical and surgical expenses.
While technical rules of statutory construction and
interpretation may tend to support the plaintiff's position, the
fact still remains that judicial approval of such position would
grant the injured plaintiff a double recovery of his medical and
surgical expenses. The defendant reimbursed the plaintiff for
these expenses in the compensation proceeding. This Court must
assume that proof of such expenses was made in the common law
action and eventually recovered in the judgment. To allow the
plaintiff at this time to withhold that amount of money from the
insurer would result in a double recovery.
Accordingly, this Court holds that each party, namely, the
defendant and the injured plaintiff, is liable to the plaintiff
attorney for 50% of the amount recovered by each party. This
Court further holds that the defendant is entitled to the gross
sum of $15,299.73.
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