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Glenn v. Johnson

March 07, 2001

IN RE ESTATE OF WILLIAM MATTHEW GLENN, A MINOR (MARY ANN GLENN, GUARDIAN, APPELLEE).
MARY ANN GLENN, ADMINISTRATRIX OF THE ESTATE OF WILLIAM ELVIS GLENN, JR., DECEASED, PLAINTIFF-APPELLEE,
v.
HERSCHEL JOHNSON, DEFENDANT AND THIRD-PARTY INTERVENOR-APPELLANT, AND HERSCHEL JOHNSON REAL ESTATE AND DEVELOPMENT CORPORATION, JOHN DEERE COMPANY, WILLIAM ALBERT, AND ALBERT-JOHNSON DEVELOPMENT COMPANY, DEFENDANTS.
IN RE ESTATE OF WILLIAM ELVIS GLENN, JR., DECEASED (MARY ANN GLENN, ADMINISTRATRIX, APPELLEE).



Appeal from the Circuit Court of St. Clair County. Nos. 99-P-797, 97-L-347A, & 99-P-921 Honorable Jan V. Fiss, Judge, presiding.

Justices: Honorable Clyde L. Kuehn, J. Honorable Charles W. Chapman, P.J., and Honorable Terrence J. Hopkins, J., Concur

The opinion of the court was delivered by: Justice Kuehn

Herschel Johnson appeals from the trial court's December 22, 1999, and December 29, 1999, orders regarding the distribution of the wrongful-death settlement that the appellees made with John Deere Company (John Deere).

In November 1996, William E. Glenn, Jr., was killed while excavating a crawlspace for a new O'Fallon, Illinois, home, when the John Deere tractor he was operating rolled over. As it was apparently unclear whether Herschel Johnson was his employer, Mary Ann Glenn, William E. Glenn, Jr.'s wife and the administrator of his estate, filed a lawsuit against Herschel Johnson and others and alleged an independent contractor relationship, and she also filed a workers' compensation claim against Herschel Johnson and alleged an employment relationship. Ultimately, within the context of the workers' compensation claim, Herschel Johnson admitted that he was William E. Glenn, Jr.'s employer, and Mary Ann Glenn dismissed the lawsuit against him.

The lawsuit against Herschel Johnson Real Estate and Development Corporation continued, ultimately resolving in a $25,000 settlement, against which Herschel Johnson promised not to assert his workers' compensation lien.

The case continued, and eventually John Deere settled the suit for $225,000. At the hearing on this wrongful-death settlement, the probate court cases and the lawsuit were consolidated, Mary Ann Glenn was appointed the guardian of the person and estate of William Matthew Glenn, her minor son, and Herschel Johnson reentered the case by intervention. Herschel Johnson intervened to protect and assert his workers' compensation lien, which at that time totaled $51,000.

Mary Ann Glenn never filed her own claims against any of the defendants for her loss of consortium. On December 22, 1999, there was no loss-of-consortium claim on file.

On December 22, 1999, the trial court determined that the gross settlement subject to the workers' compensation lien was $225,000. From that amount, the trial court calculated the attorney's fee of $74,992.50 and subtracted it from the gross settlement. The trial court also subtracted all applicable costs and expenses, which totaled $24,776.68. After these subtractions, there was a net recovery of $125,230.82. Comparing the $51,000 workers' compensation lien to the net recovery, the trial court determined that the lien represented 40.7% of the total net recovery. Applying that percentage to the expenses, the trial court concluded that Herschel Johnson was responsible for $10,084.15 of the total costs. Additionally, the trial court required Herschel Johnson to pay the statutory 25% attorney's fee on his lien, for a total of $12,750. Subtracting the $10,084.15 and $12,750 from the $51,000 lien left a net amount due to Herschel Johnson of $28,165.85. Subtracting the attorney fees, the costs, and the net workers' compensation lien left $84,314.97 to be allocated to Mary Ann Glenn and her minor son.

The trial court then turned to the issue of Mary Ann Glenn's loss of consortium and stated that it would make an allocation between the loss of consortium and all other losses. In determining that 50% of the $84,314.97 net recovery should be allocated to the loss of consortium, the trial court stated that it considered the facts, testimony, and case law.

The other half of the net recovery ($42,157.49) was then utilized to determine Herschel Johnson's credit for future workers' compensation payments. Because of the settlement, the employer, Herschel Johnson, is entitled to a moratorium on his weekly payments to Mary Ann Glenn. Herschel Johnson's weekly workers' compensation obligation is $287.89. Taking that weekly amount into the net recovery utilized to determine the credit for future workers' compensation payments ($42,157.49), the trial court arrived at a figure of 146.44 weeks as the moratorium on future workers' compensation payments. During the moratorium, the employer must still pay Mary Ann Glenn 25% of the original weekly amount ($71.97), representing the attorney fees. After the moratorium, the employer must resume the weekly payments of $287.89.

From the trial court's order, it appears that the attorney representing the estate, the minor child, and Mary Ann Glenn decided to forego the attorney's fee for the workers' compensation lien recovery ($12,750). Adding that amount to the $84,314.97 net settlement and to the $25,000 earlier settlement to which the workers' compensation lien did not attach, the trial court concluded that there was a total of $122,064.97 to be distributed to Mary Ann Glenn and her minor son. After a consideration of the evidence and the report of the guardian ad litem, the trial court found that $100,000 should be distributed to Mary Ann Glenn, and the balance was to be placed in a restricted account on behalf of her minor son. The trial court's order concluded that the settlement was just and proper and in the best interests of the parties.

The identical order was also file-stamped on December 29, 1999.

The division of wrongful-death settlement proceeds is strictly within the trial court's discretion. In re Estate of Flake, 137 Ill. App. 3d 535, 536, 484 N.E.2d 1243, 1244 (1985); Adams v. Turner, 198 Ill. App. 3d 353, 356, 555 N.E.2d 1040, 1042 (1990). On appeal, we must decide whether the trial court abused its discretion in apportioning the wrongful-death settlement proceeds. Adams, 198 Ill. App. 3d at 356, 555 N.E.2d at 1042. "In determining whether a circuit court has abused its discretion, the issue is not whether the reviewing court agrees with the circuit court, but whether the circuit court acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted." Adams, 198 Ill. App. 3d at 356, 555 N.E.2d at 1042.

We initially address a recent supreme court opinion, In re Estate of Dierkes, 191 Ill. 2d 326, 730 N.E.2d 1101 (2000), a case remarkably similar to this one. Herman Dierkes was fatally injured while on the job for the Department of Transportation. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1102. The injury occurred as a result of acts of a third- party tortfeasor. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1102. The decedent's wife retained a law firm to pursue all claims against the third party, for which she agreed to pay the firm one-third of any amount recovered. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1102. The estate settled its claim against the third party for $100,000. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1102. Additionally, the employer and the estate reached a settlement on the workers' compensation claim, by which the employer would pay the decedent's widow $2,176.11 per month for 20 years. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1103. At that time, the present value of that compensation exceeded $100,000. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1103. The decedent's widow thereafter petitioned the court to approve the settlement and distribution thereof. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1103. The attorneys would receive one-third of the $100,000 ($33,333.33), based upon the contingency-fee contract. Dierkes, 191 Ill. 2d at 329, 730 N.E.2d at 1103. Because the workers' compensation lien far exceeded the third-party settlement, the balance of the settlement ($66,666.67) was proposed to go back to the employer, subject to the statutory 25% attorney's fee ($16,666.67). Dierkes, 191 ...


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