APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE BERNARD CAREY, PRESIDING.
As Modified on Denial of Rehearing June 2, 1994. Released for Publication August 2, 1994.
The opinion of the court was delivered by: Johnson
MODIFIED ON DENIAL OF REHEARING
JUSTICE JOHNSON delivered the opinion of the court:
These consolidated appeals are brought by Zurich-Denmark Insurance Company (hereinafter Zurich) seeking to enforce a lien against a judgment awarded to plaintiff in her underlying action against the named defendants. Zurich intervened in plaintiff's lawsuit and following trial plaintiff was awarded $3.4 million. Thereafter, Zurich sought to enforce its lien and later filed a motion for summary judgment which the trial court denied. Zurich appeals the trial court's denial of its summary judgment motion.
The facts involved in plaintiff's underlying action are detailed in this court's opinion in Mette Jorgensen v. Diana Whiteside, et al. (1992), 233 Ill. App. 3d 783, 174 Ill. Dec. 925, 599 N.E.2d 1009. We will not unnecessarily recite the facts of the case; rather, what follows is a summary of facts pertinent to this appeal.
On January 10, 1988, plaintiff, Mette Jorgensen, was injured when hit by a shuttle bus at O'Hare International Terminal Airport in Chicago. She filed a personal injury action against several defendants seeking damages for her injuries. While plaintiff's case was pending, she filed a claim with Zurich under a traveller's insurance policy issued to her in Denmark in 1987. On July 7, 1988, Zurich sent her a check for $47,255 accompanied by a letter which read in part as follows:
"Payment is made under the condition that Zurich will recover if and when the insured receives any amount from any liable party."
On February 16, 1989, Zurich sought leave to file a petition tointervene and asserted lien rights to a portion of any recovery made by plaintiff based on the terms and conditions of the insurance policy. The trial court granted Zurich leave to intervene in a written order which stated, inter alia, "that this court shall protect the lien rights of Zurich Insurance Company." Thereafter, plaintiff's case proceeded to trial and the jury awarded her $3,400,041.17. On November 5, 1990, the trial court entered judgment on the verdict, and stated in a written order that the judgment disposed of all pending matters.
On February 19, 1991, Zurich filed an affidavit in support of its claim for recovery of the $47,255 previously paid to plaintiff. On March 11, 1991, Zurich filed an emergency motion to stay distribution of the proceeds arising from any possible settlement agreement between plaintiff and the defendants, or in the alternative, that $47,255 be placed in escrow to be paid in accordance with the trial court's ruling on Zurich's right of subrogation. In an agreed order, the trial court granted Zurich's motion and ordered that "Zurich's lien be protected until the rights of the parties under the lien * * * be adjudicated."
On May 6, 1991, plaintiff filed a motion to strike Zurich's lien, arguing that Zurich neither appeared at trial nor presented any evidence therein. The trial court denied plaintiff's motion. Subsequently, the parties engaged in discovery proceedings during which Mogen Bach, a licensed attorney in Denmark was deposed and testified that Zurich had a right of subrogation under the insurance policy to the extent that it had previously compensated plaintiff in accordance with the policy. Bach, whose law practice in litigation related to insurance and transport law, based his opinion on plaintiff's insurance contract and applicable Danish law.
On May 26, 1992, Zurich filed a motion for summary judgment. In response, plaintiff filed a motion to strike, alleging the court lacked jurisdiction to entertain Zurich's motion. Plaintiff also alleged that Zurich failed to take the proper action to be entitled to any money plaintiff received as a result of the judgment in the underlying suit. Following a hearing on June 4, 1992, the trial court found that no lien existed and denied Zurich's motion for summary judgment. The trial court reasoned that Zurich ...