Kreisman Law Offices Professional Corporation
Anthony Cozzone was employed by Fellows Roofing when he was killed in a work accident. The Cozzone estate filed a lawsuit against a third party who settled with the Cozzone family for $745,000. The attorney representing the family received attorney fees of 33% or $248,333. In the meantime, a jury in a contribution case decided that Fellows Roofing was 100% responsible for the accident that killed Cozzone. Fellows Roofing waived its statutory workers’ compensation lien under Section 5(b) and requested that the trial judge dismiss the contribution case.
Fellows had already paid $117,539 in benefits for Cozzone’s 4-year-old and 2-year-old sons based on an order from the Illinois Workers’ Compensation Commission that required the employer to pay $466 a week until the children turned 18 (or 25 if they continued to be full-time students). The $745,000 settlement was paid by the owner and tenant of the building where the fatal incident took place.
As part of the settlement, the owner of the building and tenant assigned to the family of Cozzone the rights they had against Fellows under the Illinois Joint Tortfeasor Contribution Act.
Before the contribution jury trial, a judge ruled that the settlement with the owner and tenant was a good faith settlement and approved a contingency fee for the estate’s attorneys. The judge ordered the parties to deposit $117,539 of the settlement in escrow. Then, based on its lien rights, Fellows also stopped paying the weekly benefits.
Fellows lost the contribution case and waived its statutory lien. The Cozzone estate objected. The estate acknowledged that an employer’s lien-waiver satisfies the company’s contribution obligations to third parties. The estate conceded that the Illinois Supreme Court ruled, in LaFever v. Kemlite, 185 Ill.2d 380 (1998), that an employer is permitted to use this procedure even after losing a contribution trial.
The estate argued that LaFever applies only when the tort and contribution claims are tried together. This was not the case here. According to the estate, Fellows should have been ordered to immediately pay the maximum amount of its contribution liability.
The trial judge disagreed and ruled that the lien-waiver was valid. All the estate was entitled to receive, the judge decided, was the escrowed money ($117,539) plus the amount of additional benefits ($35,892) that accrued while the contribution claim was being litigated.
The lawyers for the estate also requested that the court approve payment of additional fees for pursuing the contribution claim. They wanted 25% of the escrowed money plus $20,349 for litigation expenses. The trial judge acknowledged that the estate benefited from the work the attorneys did in the contribution case, but the judge concluded there was no justification for ordering the estate to pay additional fees. All the attorneys did receive was reimbursement for litigation expenses.
On appeal, the appellate court affirmed the first issue, where it concluded: “There appears to be no sound reason to deviate from the analysis in LaFever merely because, as in this case, the employer’s liability for contribution was determined by verdict after plaintiffs settled with the underlying defendants and received an assignment of defendants’ contribution claims against the employer; the employer’s maximum contribution liability is limited to the amount of its workers’ compensation obligation.”
The court said the estate had forfeited the issue of fees because it was unable to cite any authority in support of its position.
The court turning to LaFever stated that regardless of when an employer waives its workers’ compensation lien, its contribution liability is always capped at the same amount. LaFever, 185 Ill.2d at 403-04.
When the employer waives its lien before or after a verdict assessing its liability for contribution, the holding in Kotecki v. Cyclops Welding Corp., 146 Ill.2d 158 (1991) and its progeny, limit the maximum contribution liability of the employer to the amount paid and to be paid in workers’ compensation benefits. Id. at 404.
The estate on appeal argued that LaFever was distinguishable because in those cases the underlying tort action was tried concurrently with the contribution action. The appeals panel disagreed. There was no sound reason to deviate from the analysis in LaFever merely because in this case, the employer’s liability for contribution was determined by the verdict after plaintiff settled with the underlying defendants and received an assignment of defendants’ contribution claims against the employer; the employer’s maximum contribution liability is still limited to the amount of its workers’ compensation obligation. See also Kim v. Alvey, 322 Ill.App.3d 657 (2001).
Accordingly, the court affirmed the order allowing Fellows to waive its workers’ compensation lien. The court stated that we find that the estate has forfeited the issue of additional attorney fees by failing to cite authority in support of its position. The court affirmed the orders granting Fellows’ motion to waive its workers’ compensation lien and denying the estate’s attorneys’ petition for attorney fees.
Cozzone v. Garda GL Great Lakes, 2016 IL App (1st) 151479 (Feb. 11, 2016).
Kreisman Law Offices has been handling catastrophic injury case, work-site injury cases, worker injury cases, construction injury cases and truck accident cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Vernon Hills, Rolling Meadows, Aurora, Elgin, Joliet, Romeoville, Bolingbrook, Hillside, Hinsdale, Long Grove, Evergreen Park, Deerfield, Palatine, Park Ridge, Schaumburg, St. Charles, Bedford Park, Chicago (Morgan Park, Roseland, Pullman, Lake Calumet, Riverdale, Brighton Park, Little Village, Lawndale), Oak Park, Franklin Park and Melrose Park, Ill.
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