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03/22/96 EDMONIA D. BORDEN v. SERVICEMASTER

March 22, 1996

EDMONIA D. BORDEN, ADM'R OF THE ESTATE OF JAMES BORDEN, PLAINTIFF-APPELLANT,
v.
SERVICEMASTER MANAGEMENT SERVICES, DEFENDANT (NEW TRIER HIGH SCHOOL DISTRICT 203, INTERVENOR-APPELLEE).



APPEAL FROM THE CIRCUIT COURT COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j. and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

Plaintiff, Edmonia D. Borden, as the administrator of her husband James Borden's estate, brought this action against defendant, Servicemaster Management Services (Servicemaster), after her husband, in the course of his employment with New Trier High School District 203 (New Trier), suffered injuries on January 6, 1992, that resulted in his death on January 14, 1992. When settlement between plaintiff and Servicemaster was imminent, New Trier, as James Borden's employer, intervened and moved to impress a workers' compensation lien on the settlement proceeds. At issue on appeal is the appropriate amount of New Trier's lien.

On January 6, 1992, while he was working at New Trier as a maintenance engineer, James Borden was severely burned by a surge of steam from a steam pipe. He was thereafter hospitalized until his death on January 14, 1992. Defendant Servicemaster had a service contract with New Trier. Plaintiff brought this action against Servicemaster, citing the company's failure to train New Trier employees on the proper maintenance of the school's steam pipes as the proximate cause of James Borden's death.

Plaintiff filed her original complaint on September 21, 1992, and an amended complaint on February 26, 1993. Plaintiff's amended complaint stated that she was bringing this action pursuant to the Illinois Wrongful Death Act (740 ILCS 180/1 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 70, par. 1 et seq.)), to recover for pecuniary loss and loss of society and companionship that she and her two adult sons suffered as a result of her husband's death. Plaintiff further alleged that, as the decedent's spouse, she had become obligated for his medical, funeral, and burial costs, and that she was entitled to reimbursement under the Illinois Rights of Married Persons Act (commonly known as the Family Expense Act) (750 ILCS 65 /15 (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 1015)).

In September, 1994, when settlement negotiations between plaintiff and Servicemaster were drawing to a close, the trial court granted New Trier leave to intervene in plaintiff's action. Seeking reimbursement for the workers' compensation benefits it had become obligated to pay, New Trier claimed a lien on the settlement proceeds. On October 17, 1994, plaintiff filed a "Petition to Settle Wrongful Death Cause of Action and Approval of Distribution of Funds and Adjudicate Workers' Compensation Lien." The petition requested that the court approve an offer of $3,200,000 by Servicemaster as "full settlement of all matters in controversy in this case." The petition also specified the attorney's costs and fees and estimated the amount of New Trier's lien.

A dispute thereafter ensued between plaintiff and New Trier over the appropriate amount of the lien. The parties agreed that New Trier should be reimbursed for the death benefits it had become obligated to pay. The parties disagreed, however, over whether New Trier should also be reimbursed from the settlement proceeds for the amount it paid in medical expenses, temporary total disability payments, and burial expenses. The trial court ruled that these expenses should be included in the lien amount. We affirm.

The exact liabilities New Trier incurred are as follows:

(a) Medical expenses $92,185.12

(b) Temporary total disability

payments from Jan. 7, 1992,

through Jan. 14, 1992 557.71

(c) Burial expenses ...


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