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07/20/89 Steven Dukes, v. J.I. Case Company

July 20, 1989

STEVEN DUKES, PLAINTIFF-APPELLANT

v.

J.I. CASE COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF (MCCARTIN-MCAULIFFE PLUMBING & HEATING, INC., THIRD-PARTY DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

542 N.E.2d 439, 186 Ill. App. 3d 439, 134 Ill. Dec. 260 1989.IL.1127

Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff Steven Dukes appeals the denial of his petition for declaratory judgment. In the petition, Dukes sought an order declaring that the defendant, McCartin-McAuliffe Plumbing & Heating, Inc. (McCartin), must pay 25% of the reimbursement received from Dukes pursuant to section 5(b) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)) to Dukes' attorneys as required by section 5(b). Dukes contends the trial court's finding that Dukes' attorneys did not substantially contribute to Dukes' recovery in a products liability action against J.I. Case Company (Case) is contrary to the evidence. In addition, Dukes maintains that because McCartin was reimbursed for the workers' compensation benefits it paid to Dukes, Dukes' attorneys are entitled to payment as provided in section 5(b). We agree and reverse.

This case began in 1978 when Dukes was injured on the job while employed by McCartin. Dukes received workers' compensation payments from McCartin in the amount of $60,500.58. On November 26, 1980, a products liability action against Davis Manufacturing (now J.I. Case Company) (Case) was filed on Dukes' behalf by attorneys for McCartin to preserve McCartin's ability to recover the workers' compensation benefits paid to Dukes. On February 15, 1982, attorneys for Dukes filed an appearance in the action and McCartin's attorneys withdrew as counsel for Dukes on March 19, 1982. On October 29, 1982, Case filed a contribution action against McCartin. After a jury trial in April 1984, Dukes was awarded $175,000 in damages, reduced to $148,750 because of Dukes' conduct while using the equipment. The jury also found Case was 47.05% liable and McCartin was 52.95% liable for Dukes' damages.

This court reversed the reduction of Dukes' damages and the apportionment of damages in the first appeal. (Dukes v. J.I. Case Co. (1985), 137 Ill. App. 3d 562, 483 N.E.2d 1345.) The supreme court affirmed this court's decision on the reduction of Dukes' damages but reversed our decision on the apportionment of damages and remanded the case back to this court. (Dukes v. J.I. Case Co. (1987), 118 Ill. 2d 447, 516 N.E.2d 260.) On remand, this court affirmed the jury's apportionment of damages. Dukes v. J.I. Case Co. (1988), 170 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

On February 3, 1988, Dukes filed a petition for declaratory judgment. In his petition, Dukes stated that attorneys for McCartin denied liability for attorney fees under section 5(b) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).) Dukes requested an order declaring McCartin was liable for the 25% payment as provided in section 5(b).

On November 10, 1988, the trial court denied Dukes' petition. The court found that: (1) the services of Dukes' counsel did not substantially contribute to the procurement of the proceeds; (2) that Dukes is not entitled to the 25% attorney fee award because McCartin, not Dukes, instituted a suit against Case; and (3) the section 5(b) attorney fee provision is operative only in situations where the ultimate apportionment of fault is such that the employer is not exposed to liability beyond its prior workers' compensation outlay.

Dukes contends that the trial court's decision fails to address the issues argued by the parties. Dukes maintains that the parties agree that Dukes' attorneys "substantially contributed" toward the procurement of the judgment against Case and, therefore, the only issue under section 5(b) is whether McCartin has been "reimbursed." Dukes argues McCartin has been reimbursed, and thus, McCartin must pay 25% of its reimbursement to Dukes' attorneys. According to Dukes, the fact that McCartin's lien ($60,500.58) is less than its liability ($92,662.50), as established in the products liability action, is irrelevant.

McCartin contends it was not reimbursed because its liability exceeds the workers' compensation benefits it has paid. Regarding the issue of "substantial contribution," McCartin admits it did not dispute this issue in the trial court and agrees that Dukes' attorneys did substantially contribute to plaintiff's efforts to obtain the judgment. However, McCartin urges that "substantial contribution" must be interpreted to mean efforts expended on McCartin's behalf. Because Dukes' attorneys did not act for McCartin, the trial court's order must be affirmed. In the alternative, McCartin urges this court to adopt the trial court's reasoning regarding "an accommodation" between the Act and "An act in relation to contribution among joint tortfeasors" (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.).

Section 5(b) of the Act provides:

"[Paragraph No. 1:] (b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the ...


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