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Andrews v. Norfolk Southern Railroad Corp.

Court of Appeals of Illinois, First District, Third Division

March 29, 2017

WESLEY ANDREWS, Plaintiff-Appellant,
v.
NORFOLK SOUTHERN RAILROAD CORP., Defendant-Appellee.

         Appeal from the Circuit Court of Cook County. No. 09 L 004524 The Honorable Michael P. Panter Judge, presiding.

          JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.

          OPINION

          LAVIN JUSTICE.

         ¶ 1 Plaintiff, Wesley L. Andrews, sued his employer, defendant Norfolk Southern Railway Corporation (Norfolk Southern), under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (2006)) (FELA), alleging an injury due to his employer's negligence. A jury rendered a verdict in favor of plaintiff, finding that plaintiff's injuries resulted from his employment. The final judgment following a reduction for plaintiff's contributory fault was $37, 500. This appeal relates to a posttrial dispute about how to satisfy the monetary judgment. Specifically, plaintiff's attorneys contend the final judgment of $37, 500 should have been used to satisfy their fees and costs in the negligence lawsuit. The trial court, however, sided with Norfolk Southern and determined the $37, 500 was appropriately used to repay the railroad money it had given plaintiff for his injury before the lawsuit. Plaintiff now challenges that determination.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff was a conductor who suffered a spinal injury while operating a mechanical track switch lever. Unbeknownst to him, Norfolk Southern had installed a new locking device, which allegedly caused his injury in May 2006. Following his injury, plaintiff was unable to work, so pursuant to section 55 of FELA (45 U.S.C. § 55 (West 2006)), Norfolk Southern paid plaintiff 38 separate advances, totaling some $75, 000, [1] from June 2006 through October 2008 to compensate plaintiff for his lost time. Plaintiff signed a form whenever he received an advance, stating "I agree that the total amount of advance shall be credited against any settlement made with or any judgment rendered against my said employer or others on account of this accident."

         ¶ 4 In November 2008, counsel for plaintiff notified Norfolk Southern that the firm had been retained on plaintiff's negligence claim and provided a notice of an attorney's lien. Norfolk Southern suspended the advance payments, and several months later, in April 2009, plaintiff filed suit.

         ¶ 5 On April 28, 2014, following trial, the jury assessed 75% of the fault to plaintiff, and 25% to Norfolk Southern resulting in a net judgment of $37, 500.[2]

         ¶ 6 Norfolk Southern filed a posttrial motion seeking a setoff for its advances under section 55 of FELA and ultimately filed a petition to satisfy and release the judgment under section 12- 183(b) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/12-183(b) (West 2006)).[3]Norfolk Southern asserted both a statutory and contractual right to setoff, claiming that in accepting the advances, plaintiff had agreed to repay Norfolk Southern from any judgment against his employer related to the accident. Norfolk Southern argued that there were no sums due plaintiff, and asked that the judgment be declared satisfied or fully paid. See Klier v. Siegel, 200 Ill.App.3d 121, 124 (1990) (noting, that is the essential purpose of section 12-183).

         ¶ 7 The legal expenses incurred in representing plaintiff were some $58, 000, exceeding the judgment. In particular, plaintiff's attorneys claimed a 25% contingency fee lien on the judgment with the rest being litigation expenses.

         ¶ 8 Plaintiff also received about $23, 000 in benefits from the Railroad Retirement Board while he was off work for his May 2006 injury. See 45 U.S.C. § 362(o) (West 2006). In a written letter, plaintiff's attorney requested that the Retirement Board relinquish its lien under section 341.5 of the Code of Federal Regulations (20 CFR 341.5 (eff. Jan. 5, 1984)) (CFR) in light of the pending legal expenses and attorneys fees. Section 341.5 explicitly states the Retirement Board is to be reimbursed by the "damages paid to the employee for the infirmity, " but only after subtracting litigation costs, including the attorney-client fee. See also 45 U.S.C. § 362(o) (West 2006). Given the amount due the attorneys in this case, the Retirement Board responded by letter that it would have no claim for reimbursement.

         ¶ 9 Norfolk Southern, on the other hand, did not relinquish its right to setoff, and the posttrial issue that developed was whether to use the $37, 500 judgment as a setoff against Norfolk Southern's advances or to cover the litigation expenses and fees of plaintiff's attorneys. In the first scenario, Norfolk Southern would be able to deduct the $37, 500 judgment from its $75, 000 advanced, resulting in a loss to Norfolk Southern of $37, 500. Plaintiff's attorneys would then be out $67, 000. In the second scenario, plaintiff would turn over his $37, 500 judgment to his attorneys, resulting in a loss to the attorneys of $20, 500 and to Norfolk Southern of $75, 000. In either scenario, plaintiff himself wouldn't get any additional funds.

         ¶ 10 On February 23, 2015, following a hearing in the matter, the trial court granted Norfolk Southern's petition, ruling the railway was entitled to a full credit or to set off of the advances it made to plaintiff up to the amount of the judgment. The court ruled the judgment for $37, 500 and costs was ...


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