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Chicago District Council of Carpenters Welfare Fund v. Gleason & Fritzshall

March 30, 1998


Appeal from the Circuit Court of Cook County Honorable David G. Lichtenstein, judge Presiding.

The opinion of the court was delivered by: Justice O'brien delivered the opinion of the court:

On November 1, 1993, plaintiff, the Chicago District Council of Carpenters Welfare Fund, filed a complaint alleging that defendants, Gleason & Fritzshall, Rick A. Gleason, and Steven N. Fritzshall, had converted a check made payable to both plaintiff and defendants. Plaintiff also sought punitive damages in connection with defendants' alleged conversion of the check. On March 17, 1994, the trial court entered an order striking the prayer for punitive damages. On October 29, 1996, the court granted summary Judgement for defendants on plaintiff's conversion action. Plaintiff appeals. We reverse both orders and remand for further proceedings.

The Chicago District Council of Carpenters Welfare Fund (Welfare Fund) is a self-funded employee welfare benefit plan created by the Chicago and Northeast Illinois District Council of Carpenters to provide health and medical care benefits to participating members. During the time period of this case, Joseph Klimas was a member of the Welfare Fund. In May 1990, Klimas was injured in an automobile accident, and he later submitted a claim to the Welfare Fund for payment of medical expenses incurred as a result of the accident. The Welfare Fund made the requested payments on Klimas' behalf.

On September 13, 1990, Klimas signed a reimbursement agreement stating that he would reimburse the Welfare Fund "for all benefits so paid in the event of recovery, from any third person legally responsible for said injuries, whether by suit, settlement, or otherwise, to the extent the net amount of such recovery is attributable to hospital, surgical, medical, dental and vision expenses for which received benefits from [the Welfare Fund.]"

Klimas retained the law offices of Gleason & Fritzshall to represent him in a personal injury action against Joseph Walski, the driver of the vehicle that struck him. Rick A. Gleason was the attorney responsible for the day-to-day handling of Klimas' personal injury claim. In December 1991, Gleason settled Klimas' claim for $50,000.

On December 9, 1991, Walski's insurance carrier issued a check for $50,000 payable to "Joseph Klimas and his Attorney Fritzshall & Gleason & Blue Cross Blue Shield Company and Carpenters Welfare Fund." Klimas endorsed the check. Defendant Steven Fritzshall, Gleason's law partner, wrote under Klimas' endorsement: "Blue Cross Blue Shield Company Carpenters Welfare fund by Perry Bronson their agent." (Perry Bronson was the Welfare Fund's benefits coordinator.) Beneath that endorsement, Gleason wrote: "Fritzshall & Gleason Payable to Gleason & Fritzshall account #22-6460-4 by Rick A. Gleason, partner."

Shortly thereafter, Gleason deposited the endorsed check in a client trust account at the LaSalle National Bank of Chicago and transferred $16,701.66 to Gleason & Fritzshall's own account for payment of their fees and outstanding expenses. Gleason then sent Klimas a check in the amount of $16,631.67 as payment for his share of the settlement. The remainder was left in the trust account.

On or about September 18, 1992, the Welfare Fund's plan administrator, Blue Cross and Blue Shield, wrote Gleason complaining that it had not received payment for its lien on Klimas' personal injury claim. In October 1992, Gleason tendered a check in the amount of $13,491.67, which Gleason explained represented the Welfare Fund's pro-rata share of the $50,000 settlement. The Welfare Fund refused to accept the $13,491.67 check as payment of the amount owed, contending instead that Gleason should pay it the entire $50,000 settlement, plus interest.

On November 1, 1993, the Welfare Fund filed this conversion action, claiming that, without its knowledge or consent, defendants forged Perry Bronson's signature on the settlement check and cashed the check based on the forged signature. The complaint prayed for compensatory damages in the full amount of the check, which the Welfare Fund claimed was less than the amount owed it under the reimbursement agreement, and punitive damages.

The trial court struck the prayer for punitive damages and granted 0 defendants' motion for summary Judgement on the conversion action. The Welfare Fund (hereinafter plaintiff) appeals.

First, we examine whether the trial court erred in granting defendants' motion for summary judgment. Then, we examine whether the trial court erred in striking plaintiff's prayer for punitive damages.

Summary Judgement is appropriate when the pleadings, together with any depositions, admissions or affidavits on file, demonstrate no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1992); City of Chicago Heights v. Crotty, 287 Ill. App. 3d 883, 885 (1997). Plaintiff argues that the trial court erred in granting summary Judgement because factual questions exist regarding whether defendants converted the check at issue. Defendants argue they were entitled to summary Judgement as a matter of law because plaintiff cannot state a cause of action for conversion. See In re Estate of Albergo, 275 Ill. App 3d 439, 446 (1995) ("f a plaintiff fails to establish an element of the cause of action, then summary Judgement for the defendant is proper").

To state a cause of action for conversion, plaintiff must allege (1) defendant's unauthorized and wrongful assumption of control, dominion or ownership over plaintiff's personal property; (2) plaintiff's right in the property; (3) plaintiff's right to immediate possession of the property, absolutely and unconditionally; and (4) plaintiff's demand for possession of the property. Roderick Development Investment Co. v. Community Bank, 282 Ill. App. 3d 1052, 1057 (1996).

Defendants argue that since the $50,000 check was made payable to them, as well as to plaintiff, they had as much right as plaintiff to possession of the check and to the funds the check represented. Therefore, defendants contend that plaintiff cannot establish they engaged in unauthorized ...

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