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07/23/87 Deceased, v. Power Company

July 23, 1987

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT 1987.IL.1044 VIRGINIA ZUBER, ADM'X OF THE ESTATE OF RALPH ZUBER, DECEASED, PLAINTIFF-APPELLANT

v.

ILLINOIS POWER COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF (R. DRON ELECTRICAL COMPANY, INC., ET AL., THIRD-PARTY DEFENDANTS-APPELLEES



511 N.E.2d 1275, 158 Ill. App. 3d 353, 110 Ill. Dec. 955

Appeal from the Circuit Court of St. Clair County; the Hon. William Starnes, Judge, presiding

Supplemental Opinion on Grant of Petition for Rehearing March 4, 1988.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiff, Virginia Zuber, as administratrix of the estate of Ralph Zuber, deceased, appeals from the judgment of the circuit court of St. Clair County which ordered plaintiff to pay United States Fidelity and Guaranty Company the sum of $50,377.23 in satisfaction of USF&G's outstanding workers' compensation lien.

On December 12, 1977, plaintiff filed a complaint against Illinois Power Company (Illinois Power) seeking to recover for damages resulting from the death of her husband, Ralph Zuber, who, at the time of his death, was employed by R. Dron Electrical Company (R. Dron) and was working at a power substation owned by Illinois Power. Plaintiff previously had been awarded workers' compensation benefits by the Industrial Commission as a result of her husband's death. Illinois Power subsequently filed a third-party complaint seeking indemnification from R. Dron and USF&G for any liability to plaintiff.

On April 21, 1983, the circuit court entered an order stating that the case had been settled. In a stipulation for dismissal filed on June 10, 1983, plaintiff and Illinois Power agreed that plaintiff's complaint be dismissed with prejudice without effect on Illinois Power's third-party complaint against R. Dron, and the court entered an order to that effect that same day.

On November 22, 1983, in a letter to the trial Judge, R. Dron's attorney recognized that R. Dron was responsible for a portion of the costs and expenses of litigation, since R. Dron was to be reimbursed out of the settlement funds for the workers' compensation payments it had already paid to plaintiff (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(b)); however, the letter informed the court that the parties could not agree on the proper allocation of costs.

The details of the workers' compensation benefits and the settlement are as follows: The parties agree that at the time of settlement plaintiff had received workers' compensation in the amount of $73,128.63. While the Industrial Commission award is not included in the record on appeal, the foregoing sum apparently consists of a lump sum award, burial expenses and $224.41 per week for 285 weeks (through May 4, 1983). USF&G, R. Dron's workers' compensation insurance carrier, apparently terminated the installment payments after May 4, 1983, in light of the settlement. The parties refer to the installment payment portion of the award at various times as an annuity for life and also as an annuity for 20 years, or an annuity for 20 years subject to plaintiff's survival. Plaintiff's affidavit states that she was entitled to $224.41 per week for a total of 1040 weeks, or 20 years. We assume, for purposes of this Disposition, that the Industrial Commission award was for a period of 20 years subject to plaintiff's survival. See Ill. Rev. Stat. 1983, ch. 48, par. 138.7(a).

The fund created by the settlement between plaintiff and Illinois Power consisted of a lump sum of $302,466.54 and an annuity of $900 per month for life. The cost of the annuity was $86,529.00.

Plaintiff's attorney submitted a letter to the trial Judge together with an exhibit listing the litigation and medical expenses and a payout sheet accounting for the settlement fund. The payout sheet indicates the following in substance:

Received $302,466.54

Attorney Fee (1/3 of the

recovery; however, plaintiff's ...


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