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Mosier v. Warren E. Danz

January 28, 1999

WILLIAM B. MOSIER III, PLAINTIFF-APPELLEE, AND LONG-AIRDOX COMPANY, A DELAWARE CORPORATION, PLAINTIFF-APPELLANT,
v.
WARREN E. DANZ, P.C., A PROFESSIONAL CORPORATION, AND WARREN E. DANZ, INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County No. 96L9 Honorable Jerry L. Patton, Judge Presiding.

The opinion of the court was delivered by: Justice Garman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff William B. Mosier was employed by plaintiff Long-Airdox Company (Long-Airdox). In November 1982, Mosier was injured while hanging sheet metal at Elkhart Mine. Mosier received approximately $346,000 in workers' compensation payments from Long-Airdox. In December 1991, Mosier filed a legal malpractice action against his attorney, defendants Warren E. Danz, individually, and Warren E. Danz, P.C. (collectively, Danz), alleging negligence and breach of contract in failing to investigate and file suit against third parties responsible for Mosier's injury. Long-Airdox was permitted to intervene but was denied protection of a workers' compensation lien against any recovery Mosier might receive from Danz. Long-Airdox now appeals this order pursuant to a finding under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). We affirm.

FACTS

Mosier's first amended complaint, filed in July 1992, alleged that he had retained Danz to pursue whatever claims he might have for injuries suffered in his employment-related accident. He alleged breach of contract and negligence, claiming that Danz had failed to (1) investigate his claims against any third parties, (2) file suit on Mosier's behalf based upon negligence and/or the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69), and (3) advise Mosier of the applicable statute of limitations in filing suit against third parties.

Long-Airdox filed a petition to intervene in July 1997. That petition was allowed, and Long-Airdox was granted leave to file a motion for protection of its lien under section 5(b) of the Workers' Compensation Act (Act) (820 ILCS 305/5(b) (West 1996)). Danz and Mosier objected to the motion, based upon a decision of the Fifth District Appellate Court in Woodward v. Pratt, Bradford & Tobin, P.C., 291 Ill. App. 3d 807, 684 N.E.2d 1028 (1997). The trial court entered an order on January 12, 1998, in which it found the amount of Long-Airdox's lien to be $346,759.77. In denying the motion for protection of the lien, the trial court stated it was required to follow the Woodward decision.

ANALYSIS

Section 5(b) of the Act provides in pertinent part:

"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 damag- es, 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 para- graph (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 fund out of which such employee might be compensated from such third party.

***

In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act ***." 820 ILCS 305/5(b) (West 1996).

Long-Airdox concedes that it did not file suit against any third persons who may have been responsible for Mosier's injuries, as ...


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