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08/04/94 JANIS E. SCHROCK v. CALVIN SHOEMAKER ET

August 4, 1994

JANIS E. SCHROCK, APPELLEE,
v.
CALVIN SHOEMAKER ET AL., APPELLANTS (BASH AND SCHROCK, INC., APPELLEE).



Bilandic, Harrison

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

Adlai J. Schrock (decedent) died on June 13, 1989, after he fell from a scaffold while working at a construction site in Champaign County. Schrock's widow, Janis Schrock (hereafter, the plaintiff), filed a complaint in the circuit court of Champaign County against the defendant owners of the construction site, Shoemaker and Goldfarb. The complaint sought to recover damages under the Structural Work Act (740 ILCS 150/9 (West 1992)) for the plaintiff's loss of consortium.

The defendants, in turn, filed a third-party complaint against the decedent's employer, Bash and Schrock, Inc. (employer), seeking contribution pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/2 (West 1992)). The employer then filed a motion to intervene in the original structural work action. The employer's motion alleged that its workers' compensation insurance carrier had paid and continued to pay benefits to the plaintiff for the death of her husband, pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)). The employer's motion sought to establish a workers' compensation lien upon any judgment or settlement that the plaintiff obtained in her structural work action against the defendant. The employer sought a lien pursuant to section 5(b) of the Workers' Compensation Act to reimburse the employer for the death benefits it paid and continued to pay the plaintiff. (820 ILCS 305/5(b) (West 1992).) The employer also filed a conditional motion for summary judgment or judgment on the pleadings, in the event that the trial court denied its motion to intervene. This conditional motion alleged that, if the court should refuse to impress a lien upon the plaintiff's recovery, a judgment should not be entered against the employer in the defendant's contribution action. The motion alleged that, under Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 166 Ill. Dec. 1, 585 N.E.2d 1023, an employer's contribution liability is limited to its liability under the workers' compensation statute, and the employer had already exhausted its contribution liability by paying workers' compensation benefits to the plaintiff.

The trial court denied both of the employer's motions. The court found, however, that its orders involved a question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal from the orders would materially advance the ultimate termination of the litigation. Accordingly, the trial court entered an order certifying the following questions of law for interlocutory review pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308):

"1. Whether a recovery of death benefits by the plaintiff under Section 9 of the Structural Work Act is subject to a lien, credits or offsets to the extent of benefits payable by a third party defendant-employer under Section 7 of the Workers' Compensation Act?

2. If not, whether the employer who pays benefits under Section 7 of the Workers' Compensation Act can be subjected to a third party claim for contribution in a death case brought under the Structural Work Act?"

The appellate court allowed the employer's application for interlocutory appeal. The court answered the first certified question in the negative, holding that the plaintiff's recovery in the structural work action was not subject to a workers' compensation lien. The court also answered the second certified question in the negative, holding that a defendant can file a contribution claim against the decedent's employer, but that the employer's contribution liability is limited to its liability under the Workers' Compensation Act. (246 Ill. App. 3d 372.) We allowed the defendants' petition for leave to appeal (134 Ill. 2d R. 315).

Before turning to the questions raised by the parties, we briefly comment on the scope of review in this appeal. As a general rule, an appeal to the appellate court may be taken only from a final judgment of the circuit court. Supreme Court Rule 308 provides a limited exception to this rule, and authorizes an appeal to the appellate court from nonfinal orders when the trial court "finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." (134 Ill. 2d R. 308.) The appellate court may then "in its discretion" permit the appeal to be taken. (134 Ill. 2d R. 308.) When the appellate court renders a final judgment, either denying an application for appeal under Rule 308 or permitting an appeal and answering the certified questions, either party may petition this court for leave to appeal from the appellate court's judgment, pursuant to Supreme Court Rule 315(a) (134 Ill. 2d R. 315(a)). (See also Healy v. Vaupel (1990), 133 Ill. 2d 295, 140 Ill. Dec. 368, 549 N.E.2d 1240.) If this court allows a petition for leave to appeal pursuant to Rule 315(a), the scope of our review is not limited to determining whether the appellate court answered the certified questions correctly. Pursuant to Supreme Court Rule 366(a)(5), this court may "enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief * * * that the case may require." (134 Ill. 2d R. 366(a)(5).) Bearing these principles in mind, we note that we initially consider the questions that the trial court certified to the appellate court, pursuant to Rule 308. In the interest of judicial economy and to reach an equitable result, however, we must go beyond the certified questions and provide a solution to all questions raised in this appeal.

I

We first consider whether the employer has right to claim a lien upon any proceeds that the plaintiff mayobtain in a judgment or settlement of her structural work action against the defendant. The employer seeks to impose the lien so that it may recover benefits that it has paid to the plaintiff pursuant to section 7 of the Workers' Compensation Act (820 ILCS 305/7 (West 1992)). That section authorizes the payment of death benefits to the surviving spouse and dependents of a deceased employee and specifies the amount of compensation to be paid to such spouse and dependents. 820 ILCS 305/7 (West 1992).

Section 5(b) of the Workers' Compensation Act allows employers who have paid benefits to an employee or dependents of an employee to claim a lien on the proceeds of an action against a third party in certain instances. Section 5(b) provides:

"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 employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.

If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fiend out of which such employee might be compensated from such third party." (Emphasis added.) 820 ILCS 305/5(b) (West 1992).

An analysis of the specific wording of section 5(b) demonstrates that an employer's right to claim a workers' compensation lien is expressly limited to actions brought by and proceeds paid to "the injured employee or his ...


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