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Docket No. 86857-Agenda 26-September 1999.

DENNIS EASTMAN, Appellee, v. STEVEN MESSNER, Appellee (Gates McDonald ex rel. Meyer Material Company,Appellant).

Opinion filed December 2, 1999.

JUSTICE McMORROW delivered the opinion of the court:

The question presented in this appeal is whether, pursuant to section 5(b) of the Workers' Compensation Act (820 ILCS305/5(b) (West 1996)), an employer who has paid workers' compensation benefits to an employee may assert a lien againstthe employee's recovery in a legal malpractice suit where that suit is based upon the failure of the employee's attorney toprosecute a personal injury action against a third-party tortfeasor allegedly responsible for the employee's injuries. Theappellate court concluded that, under these circumstances, an employer could not assert a lien. 302 Ill. App. 3d 526. For thereasons that follow, we affirm the judgment of the appellate court.

Background

On January 21, 1991, the plaintiff, Dennis Eastman, was injured in an accident which occurred during the course of hisemployment as a truck driver for Meyer Material Company. The accident took place while Eastman was driving his truck inthe gravel pit of a third party, Vulcan Materials Company. Meyer Material's workers' compensation insuranceadministrator, Gates McDonald, has paid a total of $248,218.66 in workers' compensation benefits to Eastman as a result ofthe accident.

Following the accident, Eastman hired the defendant, attorney Steven Messner, for the purpose of filing a personal injuryaction against Vulcan Materials. After Messner allegedly failed to file the personal injury action within the applicablelimitations period, Eastman filed a legal malpractice suit against Messner. On November 24, 1997, Gates McDonald filed apetition to intervene in the legal malpractice case on the behalf of Meyer Material, arguing that it had a right, pursuant tosection 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1996)) to assert a lien against any damageswhich Eastman might recover from Messner. Following a hearing held on February 19, 1998, the circuit court of CookCounty denied the petition to intervene. The appellate court, relying primarily on Woodward v. Pratt, Bradford & Tobin,P.C., 291 Ill. App. 3d 807 (1997), affirmed the judgment of the circuit court. 302 Ill. App. 3d 526. We allowed GatesMcDonald's petition for leave to appeal. 177 Ill. 2d R. 315(a).

Analysis

A lien is defined generally as "a charge upon property, either real or personal, for the payment or discharge of a particulardebt or duty in priority to the general debts or duties of the owner; an encumbrance upon property as security for thepayment of a debt; or a hold or claim on another's property as security for the payment or performance of a debt, duty, orother obligation." Gaskill v. Robert E. Sanders Disposal Hauling, 249 Ill. App. 3d 673, 676 (1993), citing 51 Am. Jur. 2dLiens