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12/29/94 GARY RICE v. MCDONALD'S CORPORATION

December 29, 1994

GARY RICE, PLAINTIFF-APPELLEE,
v.
MCDONALD'S CORPORATION, A FOREIGN CORPORATION, DEFENDANT, HUGHES EXCAVATING, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE, AND LANDMARK STRUCTURES, INC., AN ILLINOIS CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (ARTHUR OSTMANN GENERAL CONTRACTOR, INC., THIRD-PARTY DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Wayne County. No. 89-L-25. Honorable Donald E. Garrison, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Goldenhersh, J., and Welch, J., concur.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

This case presents three questions. First, how are the proceeds from a trial that involves contribution claims, a third-party action against plaintiff's employer, and the assertion of a workers' compensation lien to be distributed after Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, 166 Ill. Dec. 1? Second, did the trial court properly use an additur to compensate plaintiff for medical expenses when the jury left that space blank on the itemized verdict form and the evidence of medical expenses was undisputed? Third, did the third-party defendant/employer waive any objection to the additur?

This case began when a wall fell on top of the plaintiff, Gary Rice. Rice sued defendants Hughes Excavating (Hughes), Landmark Structures, Inc. (Landmark), and McDonald's Corporation (McDonald's). Landmark filed a third-party contribution action against plaintiff's employer, Arthur Ostmann General Contractor, Inc. (Ostmann), which raised its workers' compensation payments to plaintiff as a limitation to any contribution it might be required to make.

The jury returned a verdict of $350,000 for plaintiff, but it awarded him nothing for the undisputed $28,571.64 in past medical expenses proved during the trial. The jury assessed the parties' relative fault as follows:

Hughes 10%

Landmark 50%

McDonald's 0%

Ostmann 40%

The trial judge granted plaintiff's posttrial request for an additur of $28,571.64 and entered judgment for plaintiff in the amount of $378,571.64.

Defendants satisfied the judgment, and Landmark sought reimbursement from Ostmann. Plaintiff satisfied Ostmann's claim for reimbursement of its $167,599.81 worker's compensation lien, which was owed under section 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)), by paying Ostmann $120,590.83. The latter figure was calculated by subtracting $47,008.98 from $167,599.81. The $47,008.98 figure was comprised of $41,899.95 in attorney fees under section 5(b) and $5,109.03 in prorated costs under the same section. There is no dispute about any of the above figures or their payment.

The dispute in the allocation process is between the third-party plaintiff and the third-party defendant/employer, Ostmann. Ostmann contends that, under Kotecki, its responsibility is limited to the amount it has paid in workers' compensation benefits, and it calculates that amount to be $120,590.83, the amount it was reimbursed by plaintiff.

Third-party plaintiff contends that it is entitled to recover contribution up to the full amount of the benefits that Ostmann paid, $167,599.81. Although third-party plaintiff's claim is for less than the full amount of those benefits, it states that theoretically it could recover the entire amount of benefits ...


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