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08/11/89 William Blagg Et Al., v. F.W.D. Truck and

August 11, 1989

WILLIAM BLAGG ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS

v.

ILLINOIS F.W.D. TRUCK AND EQUIPMENT COMPANY ET AL., DEFENDANTS-APPELLEES (F.W.D. CORPORATION ET AL., THIRD-PARTY PLAINTIFFS; THE VILLAGE OF WINTHROP HARBOR, THIRD-PARTY DEFENDANT-APPELLANT AND CROSS-APPELLEE;



Before turning to the merits of appeal, we first note that the Village's motion to strike pages 1 through 10 of plaintiffs' reply brief is granted. Plaintiffs violated Supreme Court Rule 343b(i) (107 Ill. 2d R. 343b(i)) by using pages 1 through 10 of its reply brief as cross-appellant to respond to appellant Village's reply brief. The rule does not allow an appellee to respond to an appellant's reply brief.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Illinois F.W.D. Truck and Equipment Company, Third-Party, Defendant-Appellee; The Village of Winthrop Harbor,

Third-Party Plaintiff-Appellant; William Blagg, Third-Party, Defendant-Appellee and Cross-Appellant)

No. 2-88-1065

542 N.E.2d 1294, 186 Ill. App. 3d 955, 134 Ill. Dec. 787 1989.IL.1240

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. McLAREN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

William Blagg was injured when he fell from a fire truck while en route to a fire as a fire fighter for the Village of Winthrop Harbor (Village). He and his wife, Marilyn, suing for loss of consortium, brought suit against the manufacturers of the truck, F.W.D. Corporation and Seagrave Fire Apparatus, Inc. (Seagrave), and the manufacturer's distributor, Illinois F.W.D. The manufacturers brought a third-party action for contribution against Village and Illinois F.W.D. Village then brought a third-party action for contribution against William Blagg. On January 25, 1986, William Blagg was awarded $426.44 per week for life in worker's compensation. On March 14, 1988, Village filed a petition asserting a worker's compensation lien for $282,251.18, which increased $426.44 every week.

Just prior to trial, plaintiffs agreed to a settlement with F.W.D., Seagrave, and Illinois F.W.D., which provided that William Blagg would receive $100,000 for his injuries and Marilyn Blagg would receive $375,000 for her loss of consortium. Village objected to the apportionment of the settlement, contending that it allowed the parties to circumvent its lien. After a hearing, the lower court approved the settlement based on a finding that it was entered in good faith. As a result of the settlement, Village was able to collect only $71,698.48 of its $282,251.18 lien. Village appeals from the order approving the settlement.

Next, we must point out that Village's statement of facts includes reference to many facts which have not been made a part of the appellate record, and appellees are also guilty of referring on numerous occasions to facts outside the record. The out-of-court Discussions of the parties concerning settlement negotiations have not been made a part of the record. No depositions referred to have been made a part of the record. Nor has the pretrial memorandum referred to been made a part of the record. Appellant has attached some of these materials to its appendix; however, this is not sufficient. Attachments to briefs not otherwise of record are not properly before the reviewing court and cannot be used to supplement the record. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 157.) The only items made properly a part of the record include the pleadings, motions, and a few interrogatories. The only relevant facts properly before this court left to discuss include certain interrogatory answers given by plaintiffs.

William Blagg stated that as a result of his fall from the fire truck he suffered a severe cerebral concussion and was comatose for several weeks. He spent several months in the hospital. He also suffered a back injury which required surgery. Further, he had injury to his nervous system and suffered a lost sense of taste and smell; change in hearing, vision, and speech; memory lapses; difficulty walking and maintaining stability; and severe emotional and depressive episodes. William stated he has continued to need medical attention and has been unable to work.

Marilyn Blagg stated that as a result of her husband's injuries she suffered an economic loss in that many house and auto repairs that used to be done by her husband now had to be done by hired help. Also, there were many expenses for food, travel, and lodging in regard to her husband's trips to hospitals.

Appellant, Village, objects to the settlement distribution which allocates $100,000 to William Blagg for his injuries from the fall and $375,000 to Marilyn Blagg for her loss of consortium. Village contends that this allocation is in bad faith and in contravention of public policy because in allocating the major portion of the settlement to Marilyn Blagg's claim for loss of consortium, the settling parties have purposely structured a settlement to circumvent appellant's worker's compensation lien, which, at date of settlement order, amounted to $295,580.82, and increased $426.44 every week.

Section 5(b) of the Worker's Compensation Act provides that an employer who has compensated an employee has a right to reimbursement from any compensation the employee receives from a suit against a third party. An employer may claim a lien "upon any award, judgment or fund" that the employee recovers from the third party. (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).) In Page v. Hibbard (1987), 119 Ill. 2d 41, 50, the supreme court recently held that an employer is not entitled, however, to reimbursement from a spouse's recovery for loss of consortium. The court pointed out that a spouse was not entitled to receive compensation for loss of consortium under the Act and held that the spouse's action for loss of consortium was not a derivative claim, but an independent action to recover for injuries the spouse has suffered. (Page, 119 Ill. 2d at 48.) The court in Page remanded the case for a determination of whether the recovery for loss of consortium award, $12,000, which equaled the amount provided to her spouse for his injuries was "fair and reasonable in light of the total settlement." (Page, 119 Ill. 2d at 50.) In reference to this order, Page cited Dearing v. Perry (Ind. App. 1986), 499 N.E.2d 268, 272, which held that the value of the claim for loss of consortium will be given legal effect only if it is determined by an independent, impartial trier of fact ...


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