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Overlin v. Windmere Cove Partners, Inc

Case Date: 09/24/2001
Court: 2nd District Appellate
Docket No: 2-00-0986 Rel

September 24, 2001

No. 2--00--0986

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

Thomas Overlin,

          Plaintiff-Appellant,

v.

Windmere Cove Partners, Inc.,

          Defendant-Appellee

(Brittany Homes and Development, Inc.,  Defendant).

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)		 Appeal from the Circuit Court
of Kane County.

 

No.  95--L--406


Honorable
Gene L. Nottolini,
Judge, Presiding

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JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Thomas Overlin, appeals the circuit court's order finding that defendant, Windmere Cove Partners, Inc. (WindmereCove), owed plaintiff an additional $1,280.31 on a judgment. Plaintiff had filed a motion for a turnover order seeking nearly$23,000, including reimbursement for a subrogee's pro rata share ofcosts and expenses and postjudgment interest on the entire judgmentamount. On appeal, plaintiff contends that the court erred in (1)determining the subrogee's pro rata share of costs and (2) failingto award plaintiff interest on the portion of the judgmentrepresenting workers' compensation payments he had received.

Plaintiff was injured while operating an end loader in thecourse of his employment. His employer paid him $121,592.92 inworkers' compensation benefits. Plaintiff then sued several thirdparties to recover for those injuries. The employer assigned itsworkers' compensation lien to Windmere Cove. A jury found WindmereCove liable and awarded plaintiff $250,114.96. On appeal, thiscourt affirmed. Overlin v. Windmere Cove Partners, Inc., No. 2--99--0145 (2000) (unpublished order under Supreme Court Rule 23).

After this court issued its mandate, Windmere Cove's insurertendered plaintiff a check for $184,016.02, which it claimed fullysatisfied the judgment. Plaintiff moved for a turnover order foran additional $22,955.97 plus per diem interest. After a hearing,the trial court found that Windmere Cove owed plaintiff anadditional $1,280.31. The court denied plaintiff's motion toreconsider and this timely appeal followed.

To understand the issues raised in this appeal, a briefoverview of the subrogation provisions of the Workers' CompensationAct (the Act) (820 ILCS 305/1 et seq. (West 2000)) is necessary. Section 5(b) of the Act permits an injured employee to bring aseparate action for damages against a third party. If the employee recovers from the third party, the employer may be reimbursed forthe amount of workers' compensation benefits it paid or will haveto pay. 820 ILCS 305/5(b) (West 2000). The reimbursement may takethe form of a lien on past payments or a credit on future payments. Zuber v. Illinois Power Co., 135 Ill. 2d 407, 411 (1990). From the" 'reimbursement received by the employer pursuant to' " thestatute, the employer must pay his proportionate share of the costsand expenses of the third-party action. Zuber, 135 Ill. 2d at 411,quoting Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b) (now 820 ILCS305/5(b) (West 2000)). In addition, the employer must pay anattorney fee of 25% " ' of the gross amount of suchreimbursement.' " Zuber, 135 Ill. 2d at 411, quoting Ill. Rev.Stat. 1987, ch. 48, par. 138.5(b) (now 820 ILCS 305/5(b) (West2000)).

On appeal, plaintiff first contends that the trial courtmiscalculated his employer's pro rata share of costs by firstdeducting the 25% attorney fee from the employer's "reimbursement." In other words, the employer had paid plaintiff $121,592.92 inbenefits and had a lien in that amount on the judgment. Therefore,the maximum amount the employer was entitled to receive was$121,592.92, or 48.6% of the judgment ($121,592.92