Wolf v. Toolie , 2014 IL App (1st) 132243 ( 2014 )

2014 IL App (1st) 132243
FIFTH DIVISION
September 30, 2014
Nos. 1-13-2243 & 1-13-2552 (cons.)
)
KIMBERLY WOLF, ) Appeal from the Circuit Court
) of Cook County,
Plaintiff-Appellant, )
)
v. )
) No. 11 L 6267
BERNARD TOOLIE, )
)
Defendant, )
) Honorable
(Tacori Brooks and Dawanna Johnson, Plaintiffs; ) Randye Kogan,
The County of Cook ex rel. John H. Stroger, Jr., Hospital ) Judge Presiding.
of Cook County, Appellee). )
)
)
NORA LARMENA, ) Appeal from the Circuit Court
) of Cook County
Plaintiff-Appellee, )
)
v. ) No. 11 L 008513
)
JAMES CAMPBELL, )
)
Defendant, ) Honorable
) Vanessa Hopkins
(The County of Cook ex rel. John H. Stroger, Jr., ) Judge Presiding.
Hospital of Cook County, Appellant). )
)
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
OPINION
¶1 The present appeal involves two separate cases, both stemming from separate motor
vehicle accidents in which plaintiffs suffered personal injuries. Plaintiffs received medical care
Nos. 1-13-2243 & 1-13-2552 (cons.)
at John H. Stroger, Jr., Hospital of Cook County (Stroger). The County of Cook (Cook County)
filed liens against plaintiffs for unpaid medical bills on behalf of the hospital, pursuant to the
Health Care Services Lien Act (Act) (770 ILCS 23/1 et seq. (West 2012)). Subsequently, each
plaintiff filed a lawsuit against the other parties involved in the accidents and recovered a
settlement. Each plaintiff then filed a motion to adjudicate her health care services liens, arguing
that the attorney fees and litigation costs should be deducted from the total recovery before
calculating the amount to be distributed to the health care services providers. The central
question on appeal is whether attorney fees and litigation costs should be deducted from a
plaintiff's total recovery prior to calculating the amount to be distributed to health care
professionals and providers pursuant to the Act. The two circuit court judges decided this
question differently: in case No. 1-13-2243, the circuit court did not deduct attorney fees and
litigation costs from the plaintiff's total recovery before calculating the amount to be awarded to
Stroger for its lien against the plaintiff; in case No. 1-13-2552, the circuit court did deduct
attorney fees and litigation costs from the plaintiff's total recovery before calculating the amount
to be awarded to Stroger for its lien against the plaintiff. Timely appeals were filed in both cases
and this court subsequently allowed a motion to consolidate the two cases on appeal due to the
identical legal issue presented.
¶2 The Act provides that health care professionals and health care providers that render any
service in the treatment, care, or maintenance of an injured person "shall have a lien upon all
claims and causes of action of the injured person for the amount of the health care professional's
or health care provider's reasonable charges up to the date of payment of damages to the injured
person." 770 ILCS 23/10(a) (West 2012). The total amount of liens under the Act is limited and
"shall not exceed 40% of the verdict, judgment, award, settlement, or compromise secured by or
-2-
Nos. 1-13-2243 & 1-13-2552 (cons.)
on behalf of the injured person on his or her claim or right of action." Id. However, the Act also
provides that "[t]he statutory limitations under this Section may be waived or otherwise reduced
only by the lienholder." (Emphasis added). 770 ILCS 23/10(c) (West 2012).
¶3 The Act further creates a structure to divide the liens between health care professionals
and health care providers, dictating that if the total amount of liens under the Act meets or
exceeds 40% of the "verdict, judgment, award, settlement, or compromise" then neither the liens
of the health care professionals nor the liens of the health care providers shall exceed 20% of the
"verdict, judgment, award, settlement, or compromise." 770 ILCS 23/10(c) (West 2012). No
individual health care professional or health care provider may receive more than one-third of the
"verdict, judgment, award, settlement, or compromise." Id. However, the Act also provides:
"[H]ealth care services liens shall be satisfied to the extent possible
for all health care professionals and health care providers by
reallocating the amount unused within the aggregate total
limitation of 40% for all health care services liens under this Act;
and provided further that the amounts of liens under paragraphs (1)
and (2) are subject to the one-third limitation under this
subsection." (Emphasis added). Id.
¶4 The Act also provides that when the total amount of liens under the Act exceeds 40% of
the "verdict, judgment, award, settlement, or compromise," attorney liens under the Attorneys
Lien Act (770 ILCS 5/0.01 et seq. (West 2012)) "shall not exceed 30% of the verdict, judgment,
award, settlement, or compromise." 770 ILCS 23/10(c) (West 2012).
¶5 Similarly to the Act, the Attorneys Lien Act provides:
-3-
Nos. 1-13-2243 & 1-13-2552 (cons.)
"Attorneys at law shall have a lien upon all claims, demands and
causes of action *** for the amount of any fee which may have
been agreed upon by and between such attorneys and their clients,
or, in the absence of such agreement, for a reasonable fee, for the
services of such suits, claims, demands or causes of action, plus
costs and expenses." (Emphasis added.) 770 ILCS 5/1 (West
2012).
In conjunction with the Act, the Attorneys Lien Act further states:
"In the case of a claim, demand, or cause of action with respect to
which the total amount of all liens under the Health Care Services
Lien Act meets or exceeds 40% of the sum paid or due the injured
person, the total amount of all liens under this [Attorneys Lien] Act
shall not exceed 30% of the sum paid or due the injured person."
Id.
¶6 The procedural facts from the circuit courts' decisions disclose the following. Kimberly
Wolf, plaintiff in case No. 1-13-2243, was a passenger in an automobile driven by Bernard
Toolie that was involved in a one-vehicle accident on March 21, 2010. 1 She received outpatient
treatment for her injuries at Stroger and incurred medical bills totaling $5,093.10. Wolf filed suit
against Toolie and ultimately recovered a settlement of $27,000.
¶7 On April 28, 2010, Cook County issued a notice of lien against Wolf on behalf of Stroger
pursuant to the Act.
1
Wolf's complaint against Toolie was not included in the record on appeal, so the few
details from the accident are taken from her opening appellate brief.
-4-
Nos. 1-13-2243 & 1-13-2552 (cons.)
¶8 On April 18, 2013, Wolf filed an amended motion for adjudication of medical liens in
which she indicated that, in addition to the lien served against her by Cook County on behalf of
Stroger, 2 she had health care liens totaling $12,257.18 from four separate health care
professionals: Affiliated Health Care Associates, Bassam Osman, M.D., Lake Shore Open MRI,
and Richard S. Conen, D.D.S. Wolf also alleged that her attorney fees for litigating the suit
totaled $8,100 and costs of the lawsuit totaled $751.26. In the motion, Wolf argued that,
pursuant to an appellate court decision from the Fifth District, Stanton v. Rea, 2012 IL App (5th)
110187, any health care services liens should be adjudicated on the net amount remaining after
her attorney fees and litigation costs are subtracted from her total recovery. In applying the
Stanton calculations, Wolf first subtracted the $8,100 in attorney fees and the $751.26 for the
costs of the lawsuit from her total recovery of $27,000, leaving a new subtotal of $18,148.74.
Wolf then argued that the health care lien claimants were entitled to 40% of the $18,148.74
subtotal to be split evenly between the categories, 20% of the subtotal going to health care
professionals and 20% to health care providers; therefore, the health care professionals were
entitled to $3,629.75, divided pro rata, and Stroger, as the sole health care provider, was entitled
to $3,629.75.
¶9 On April 22, 2013, Cook County filed a response to Wolf's amended motion, arguing that
Stanton did not apply. More specifically, Cook County argued that because the total amount of
health care liens, $17,350.28, exceeded 40% of Wolf's total recovery of $27,000, the health care
professionals were entitled to a total of 20% of the $27,000 recovery, divided pro rata, and
Stroger as the sole health care provider was entitled to a total of 20% of the $27,000 recovery, or
2
The amended motion to adjudicate medical liens only reflected a lien from Stroger
totaling $4,908.52. Subsequent documentation reflects the total of $5,093.10, and Wolf
is not challenging that amount on appeal.
-5-
Nos. 1-13-2243 & 1-13-2552 (cons.)
$5,400. Because 20% of Wolf's total recovery, or $5,400, exceeded Stroger's $5,093.10 lien
amount against Wolf, Cook County argued that Stroger was entitled to the full amount of its lien.
¶ 10 On April 23, 2013, the circuit court entered an order adjudicating the liens of the health
care professionals to an amount of $3,629.75 and dismissed the case with prejudice as to those
liens. The circuit court also retained jurisdiction to adjudicate Stroger's lien.
¶ 11 On June 17, 2013, in a written order, the circuit court concluded that Stroger should
receive the full amount of its $5,093.10 lien. The court observed that the plaintiff in Stanton
received nothing from her judgment and the Stanton court held that a plaintiff should receive
30% of the total amount of a settlement. Stanton, 2012 IL App (5th) 110187, ¶ 17. The circuit
court, however, reasoned that "[u]nder the limited facts of this case where the calculations show
that Plaintiff would receive money, even after her attorney received 30% of the settlement, costs
were paid, and Stroger Hospital received 20% of the settlement, the Stanton Court's objective is
satisfied."
¶ 12 On July 10, 2013, Wolf timely appealed from the circuit court's June 2013 order.
¶ 13 Nora Larmena, plaintiff in case No. 1-13-2552, was the driver of a vehicle when she was
involved in a motor vehicle accident on August 11, 2006. She received treatment for her injuries
at Stroger and incurred medical bills, of which $4,185.60 remained unpaid. On August 11, 2011,
Larmena filed suit against defendant James Campbell, the driver of the other vehicle, alleging
that he proximately caused her injuries. On March 12, 2013, the lawsuit resulted in a settlement
of $24,110.60, in favor of Larmena.
¶ 14 On August 10, 2009, and July 15, 2010, Cook County issued notices of lien to Larmena
on behalf of Stroger pursuant to the Act.
-6-
Nos. 1-13-2243 & 1-13-2552 (cons.)
¶ 15 On May 15, 2013, Larmena filed a motion to adjudicate and/or quash any and all liens.
She alleged that she had health care liens totaling $23,734.24, including liens from Stroger, Pain
Net Medical Group, Chinatown Rehabilitation, Preferred Open MRI, and Jackson Park Hospital;
attorney fees totaling $7,233.18, or 30% of her $24,110.60 recovery; and court costs totaling
$3,480.92. Larmena argued that, pursuant to Stanton, the health care services liens should be
adjudicated on the net amount remaining after her attorney fees and litigation costs are subtracted
from her total recovery. In applying the Stanton calculations, Larmena first subtracted the
$7,233.18 in attorney fees and the $3,480.92 for the costs of the lawsuit from her total recovery
of $24,110.60, leaving a new subtotal of $13,396.50. Larmena then argued that the health care
lien claimants were entitled to 40% of the $13,396.50 subtotal to be split evenly between the
categories, 20% of the subtotal going to health care professionals and 20% to health care
providers. Therefore, Larmena concluded that the health care professionals were entitled to
$2,673.90, divided pro rata, and the two health care providers, Stroger and Jackson Park
Hospital, were each entitled to half of the $2,673.90, or $1,336.95.
¶ 16 On June 20, 2013, the circuit court entered a written order in which the liens of Jackson
Park Hospital and Chinatown Rehabilitation were adjudicated to zero.
¶ 17 On June 25, 2013, Cook County filed a response to Larmena's motion, indicating that its
lien amount against Larmena was $4,185.60. Cook County argued that, as the only lienholder to
perfect its lien, it was entitled to up to one-third of Larmena's total $24,110.60 recovery, or
$8,036.86, pursuant to the Act. Cook County concluded that because Stroger's lien was less than
the $8,036.86 one-third of Larmena's total recovery, Stroger was entitled to its full lien amount
of $4,185.60. In the alternative, Cook County argued that even if the other remaining lienholders
perfected their liens, they were health care professionals entitled to 20% of the recovery, divided
-7-
Nos. 1-13-2243 & 1-13-2552 (cons.)
pro rata, and Stroger would still be entitled to 20% of Larmena's total recovery of $24,110.60, or
$4,822.12, as the sole health care provider. Because 20% of Larmena's total recovery, or
$4,822.12, exceeded Stroger's $4,185.60 lien amount against Larmena, Cook County argued that
Stroger was still entitled to the full amount of its lien. Cook County also claimed that Stanton
did not apply.
¶ 18 On July 11, 2013, in a written order, the circuit court found that the Stanton lien
calculation was the proper methodology and that, after attorney fees and costs were deducted
from a plaintiff's recovery, health care liens should be calculated from the resulting subtotal. The
court awarded Stroger $2,673.90 of its $4,185.60 lien, or 20% of the $13,396.50 subtotal after
deducting plaintiff's attorney fees and litigation costs from the total recovery of $24,110.60.
¶ 19 On August 5, 2013, Cook County timely appealed from the circuit court's July 2013 order
on behalf of Stroger.
¶ 20 On appeal, the central question is whether, under the Act, health care services liens are to
be calculated from the plaintiff's total recovery or from the subtotal resulting after attorney fees
and costs have been subtracted from the total recovery. In addition to the briefs filed by the
parties, we also allowed an amicus curiae brief to be filed by the Illinois State Medical Society
and the Illinois Hospital Association in support of Stroger.
¶ 21 We review questions of statutory interpretation de novo. Taylor v. Pekin Insurance Co.,
231 Ill. 2d 390, 395 (2008). "The cardinal rule of statutory interpretation is to ascertain and give
effect to the intent of the legislature." Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). The
language of the statute is the best indication of the legislature's intent and therefore must be
given its plain and ordinary meaning. Id. at 553. If the language is unambiguous, the statute
must be given effect without the use of other aids of construction. Id. We cannot "depart from
-8-
Nos. 1-13-2243 & 1-13-2552 (cons.)
the plain language of the statute by reading into it exceptions, limitations, or conditions not
expressed by the legislature." Id. at 567-68. A court should not consider words and phrases in
isolation, but instead should interpret each word and phrase in light of the statute as a whole. Id.
at 553. "Each word, clause and sentence of a statute must be given reasonable meaning, if
possible, and should not be rendered superfluous." Standard Mutual Insurance Co. v. Lay, 2013
IL 114617, ¶ 26. Statutes should be interpreted as a whole, "meaning different sections of the
same statute should be considered in reference to one another so that they are given harmonious
effect." Jayko v. Fraczek, 2012 IL App (1st) 103665, ¶ 14.
¶ 22 According to the plain language of the Act and the Attorneys Lien Act, if the total
amount of health care liens exceeds 40% of plaintiff's verdict, judgment, award, settlement, or
compromise, then attorney liens are limited to 30% of the verdict, judgment, award, settlement,
or compromise. Contrary to the interpretation plaintiffs are suggesting, nothing in the language
of the Act or the Attorneys Lien Act suggests that healthcare liens must be calculated from the
net amount of a plaintiff's verdict, judgment, award, settlement, or compromise, after costs and
attorneys fees have been deducted. Statutes are to be read together in harmony. Jayko, 2012 IL
App (1st) 103665, ¶ 14. We note that both the Act and the Attorneys Lien Act use the exact
same language in regard to the percentage limitations for both health care liens and attorney
liens. The total amount of liens under the Act "shall not exceed" 40% of the "verdict, judgment,
award, settlement, or compromise." 770 ILCS 23/10(a) (West 2012). If the total amount of liens
under the Act exceeds 40% of the "verdict, judgment, award, settlement, or compromise," then
attorney liens "shall not exceed" 30% of the "verdict, judgment, award, settlement, or
compromise." 770 ILCS 5/1 (West 2012); 770 ILCS 23/10(c) (West 2012). The words "verdict,
judgment, award, settlement, [and] compromise" are not defined by the Act or the Attorneys
-9-
Nos. 1-13-2243 & 1-13-2552 (cons.)
Lien Act, however the consistent use of terminology shows that the legislature intended health
care liens and attorney liens to be calculated from the same total. Interpreting the statute as
plaintiffs suggest would require us to read into the Act and the Attorneys Lien Act an exception
that was not expressed by the legislature, which we cannot do. Krautsack, 223 Ill. 2d at 567-68.
¶ 23 Moreover, the definitions of these words do not alter our understanding of the statutes.
According to Black’s Law Dictionary: "verdict" is defined as a "jury's finding or decision on the
factual issue of a case" or "in a nonjury trial, a judge's resolution of the issues of a case" (Black's
Law Dictionary 1554 (7th ed. 1999)); "judgment" is defined as a "court's final determination of
the rights and obligations of the parties in a case" (at 846); "award" is defined as a "final
judgment or decision, esp. one by an arbitrator or by a jury assessing damages" (at 132);
"settlement" is defined as an "agreement ending a dispute or lawsuit" (at 1377); and
"compromise" is defined as an "agreement between two or more persons to settle matters in
dispute between them" (at 281). None of the words used in the statute suggest that the
legislature intended a health care lien to be calculated based on the "verdict, judgment, award,
settlement, or compromise" after the subtraction of attorney fees and costs. The statute simply
says that the health care lien total may not exceed 40% of the "verdict, judgment, award,
settlement, or compromise."
¶ 24 The Act expressly provides that health care liens "shall be satisfied to the extent possible"
and that the statutory limitations may be reduced or waived "only by the lienholder." 770 ILCS
23/10(c) (West 2012). This shows that the legislature intended for health care providers to
receive as much of their liens as possible within the limitations of the statute. See In re Estate of
Wade, 156 Ill. App. 3d 844, 848 (1987) (finding that, under the Hospital Lien Act (Ill. Rev. Stat.
- 10 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
3
1985, ch. 82, ¶ 97), once a hospital lien was established, "the trial court has no discretion to
reduce the amount of the lien"). As a court, we are limited by the rules of statutory construction
and cannot add words to a statute to change its meaning. Hyster Co. v. Industrial Comm'n, 125
Ill. App. 3d 867, 869 (1984) (citing Harvey Firemen's Ass'n v. City of Harvey, 75 Ill. 2d 358, 363
(1979)). Neither can we read into the statutes an exception that was not expressed by the
legislature. Krautsack, 223 Ill. 2d at 567-68. Here, the plain language of the Act and the
Attorneys Lien Act is unambiguous and the language must therefore be given effect without
other aids of statutory construction. Id. at 553. Based on the plain language of the Act and the
Attorneys Lien Act, we hold that both health care liens and attorney liens are calculated from the
same total: they must be calculated based on an injured plaintiff's total recovery resulting from
the plaintiff's claims or causes of action based on the injury.
¶ 25 Our interpretation of the statute is supported by case law. Our supreme court has held
that shifting attorney fees to a health care lienholder is not permitted. See Maynard v. Parker, 75
Ill. 2d 73, 75-76 (1979); Wendling v. Southern Illinois Hospital Services, 242 Ill. 2d 261, 271
(2011). In Maynard, the plaintiff was injured in an automobile accident and filed suit to recover
damages for the injuries he sustained. Maynard, 75 Ill. 2d at 74; Maynard v. Parker, 54 Ill. App.
3d 141, 142 (1977). The hospital's bill for services in treating the plaintiff totaled $11,027.96
and the hospital served a notice of lien on the plaintiff in that amount pursuant to the Hospital
Lien Act. Maynard, 75 Ill. 2d at 74. The plaintiff's suit was settled for $37,500 and the plaintiff
filed a petition to adjudicate the rights of the parties. Id. The circuit court ordered the hospital to
pay the plaintiff's attorney one-third of the litigation costs incurred and one-third of the amount
3
The Hospital Lien Act was one of the eight statutes that were repealed with the
enactment of the Health Care Services Lien Act. See 770 ILCS 23/35 (West 2012).
- 11 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
claimed in its lien, or a total of $3,881.46 of its $11,027.96 lien. Id. The hospital appealed the
circuit court decision, the appellate court reversed, and our supreme court granted the plaintiff's
petition for leave to appeal. Id.
¶ 26 On appeal, the plaintiff argued that the circuit court correctly ordered the hospital to pay a
portion of his attorney fees and costs pursuant to the common fund doctrine. Id. at 74-75. The
common fund doctrine provides "a litigant or a lawyer who recovers a common fund for the
benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from
the fund as a whole. [Citation.] Underlying the doctrine is the equitable concept that the
beneficiaries of a fund will be unjustly enriched by the attorney's services unless they contribute
to the costs of litigation." (Internal quotation marks omitted.) Wendling, 242 Ill. 2d at 265. The
Maynard court however disagreed with the plaintiff, observing that "the plaintiff's liability to the
hospital was not dependent upon the creation of a fund; plaintiff was a debtor obligated to pay
for the services rendered by the hospital out of any resources which might become available to
him." Maynard, 75 Ill. 2d at 75. The court also noted that the Hospital Lien Act limited the
hospital's recovery to, at most, one-third of the plaintiff's recovery. Id. The court concluded that
the common fund doctrine did not apply to the case before it. Id. at 75-76.
¶ 27 In Wendling, the plaintiffs were injured in separate motor vehicle accidents and treated by
hospitals owned by the defendant. Wendling, 242 Ill. 2d at 264. The hospitals filed health care
liens under the Act. Id. Both plaintiffs settled and filed petitions to adjudicate the liens and
argued that, pursuant to the common fund doctrine, the plaintiffs' attorneys were entitled to
additional attorney fees equal to one-third of the amount of the hospitals' liens, to be paid by the
hospitals. Id. The circuit court agreed, finding that the plaintiffs' attorneys were entitled to 30%
of the plaintiffs' total recovery and one-third of the amount of the hospitals' liens, and ordered the
- 12 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
hospitals' share of the recovery be reduced by one-third to reflect the hospitals' share of the legal
fees. Id. The appellate court affirmed and the hospitals appealed. Id.
¶ 28 Relying on Maynard, the supreme court explained:
"Illinois courts have never applied the common fund
doctrine to a creditor-debtor relationship, such as the one between
the Hospitals and the plaintiffs in the instant case. In fact, in
[Maynard], this court expressly held that the doctrine was
inapplicable to a hospital holding a statutory lien. *** In contrast
to other 'common fund' cases, where the beneficiaries of the fund
would not be paid absent the creation of the fund, the hospital's
recovery of its charges did not depend on the creation of the fund.
'[P]laintiff was a debtor obligated to pay for the services rendered
by the hospital out of any resources which might become available
to him.' [Citation.] *** [The Maynard] court further noted that
unlike in other common fund cases, the amount of the hospital's
lien was limited by statute to a certain percentage of the plaintiff's
recovery. [Citation.] Under those circumstances, the hospital was
not unjustly enriched by the attorney's services, and, thus, was not
required to contribute to the costs of litigation." Wendling, 242 Ill.
2d at 265-66.
The court concluded that, in the case before it, the attorneys obtained funds for the plaintiffs'
benefit, not for the benefit of a class, and did so regardless of the hospitals' interests. Id. at 271.
- 13 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
Therefore, the court held that the common fund doctrine did not apply to hospitals attempting to
recover health care liens under the Act. Id. at 263.
¶ 29 Here, by requesting that the attorney lien be subtracted from a plaintiff’s total recovery
before the health care services liens are calculated, plaintiffs are requesting to shift their attorney
fees and costs in part onto the health care services lienholders. Because the Illinois Supreme
Court has expressly disallowed the shifting of attorney fees and costs onto health care services
lienholders, plaintiffs' interpretation of the Act is incorrect.
¶ 30 Larmena also relies on section 40 of the Act to support her formula for lien calculation.
Section 40 provides: "Nothing in this Act shall affect the priority of any Attorney's lien under the
Attorneys Lien Act." 770 ILCS 23/40 (West 2012). Although the language quoted directly
above appears in the Act, we do not find that this language suggests or requires that an attorney
lien should be subtracted from a plaintiff's recovery before a health care lien is calculated.
Stroger suggests that neither that Act nor the Attorneys Lien Act provide that attorney liens are
superior or inferior to health care services liens. However, we need not interpret the priority of
any lien or whether one is superior or inferior to the other in this case because the plain language
of the Act and the Attorneys Lien Act divide up 100% of plaintiff's total recovery so that all
interests receive payment in the percentages provided by the legislature.
¶ 31 The Fifth District recently considered the same question presently before this court in
Stanton v. Rea, 2012 IL App (5th) 110187. In Stanton, the plaintiff was injured in an automobile
accident and incurred hospital bills in excess of $4,000. Id. ¶ 3. The plaintiff filed suit against
the drivers of the two other cars for injuries she sustained in the accident, but one was uninsured,
so the case proceeded against the insured defendant only. Id. After a jury trial, the court granted
the plaintiff's motion for a directed verdict against the defendant on the issue of liability. Id. ¶ 4.
- 14 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
The jury then awarded damages to the plaintiff in the amount of $13,506.80 and the court entered
a judgment in that amount, plus $3,919.79 in costs. Id. Ultimately, a check was issued by the
defendant's insurance company in the amount of $14,520.86. Id. ¶ 5. The plaintiff filed a
petition to adjudicate liens and the court divided up the funds, applying 30% of the verdict to
attorney fees, 40% of the verdict to the payment of the plaintiff's medical liens, and the court
ordered the plaintiff to pay the costs in acquiring the verdict. Id. Therefore, after the
distribution, the plaintiff was left with nothing. Id. ¶ 6.
¶ 32 The plaintiff appealed, arguing that the circuit court erred in making her pay all the costs
of acquiring the verdict and incorrectly interpreted the Act. Id. ¶ 10. "According to [the]
plaintiff, the only clear and fair interpretation is to begin computation after expenses have been
deducted from the amount of the original verdict." Id. The Fifth District agreed with the
plaintiff and began by distinguishing Wendling from the case before it, noting that Wendling
dealt with attorney fees, while in Stanton the court was dealing with the costs associated with
acquiring a verdict. Stanton, 2012 IL App (5th) 110187, ¶ 13. The Stanton court further
explained that the common fund doctrine had no application and based its analysis solely on
interpretation of the Act. Id. The Stanton court then reasoned:
"In the instant case, the attorney's lien was reduced to 30%,
down from the one-third contingency fee agreed to by plaintiff,
and lienholders under the Act were limited to 40% of the
judgment. However, because of the high costs it took to secure a
judgment, there was literally no money left for plaintiff. The costs
of the litigation simply wiped out plaintiff's 30%. After a careful
reading of the Act, we agree this was not the intention of our
- 15 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
General Assembly. The intent of the law is clear that plaintiff
should receive 30% of the amount of the settlement for her injuries
after all liens, expenses, and medical bills have been paid.
In order to ensure that plaintiff receives 30% of the
judgment as intended by the Act, it is necessary that computation
of the 40% does not begin until costs associated with bringing the
case to trial and securing payment of the judgment have been
deducted from the amount of the original verdict. In the instant
case, the trial court should have begun its calculations of 40% for
the lienholders after payment of attorney fees and costs necessary
in securing the judgment." Id. ¶¶ 17-18.
The Fifth District therefore reversed the judgment of the circuit court and remanded the cause for
further proceedings.
¶ 33 Nonetheless, for the reasons stated above, we find that a circuit court may not subtract
attorney fees and costs from a plaintiff's recovery before calculating health care services liens
from the resulting subtotal; the calculation of a health care services lien must be calculated from
plaintiff's total recovery. To the extent that the Fifth District in Stanton suggests otherwise, we
disagree.
¶ 34 Larmena also contends that Stroger did not perfect its lien and is not entitled to any
recovery. Wolf has conceded that Stroger perfected its lien against her. Specifically, Larmena
argues that Stroger did not specify the name of the party alleged to be liable or the address of the
health care provider, and that Stroger did not serve the liens on Larmena as required by the Act.
Stroger responds that its lien was perfected and that, regardless, strict compliance was not
- 16 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
necessary once Larmena filed a motion to adjudicate the lien, relying on Cirrincione v. Johnson,
287 Ill. App. 3d 683 (1997), aff'd in part and rev'd in part on other grounds, 184 Ill. 2d 109
(1998).
¶ 35 Section 10(b) of the Act states that "[t]he lien shall include a written notice containing the
name and address of the injured person, the date of the injury, the name and address of the health
care professional or health care provider, and the name of the party alleged to be liable to make
compensation to the injured person for the injuries received." 770 ILCS 23/10(b) (West 2012).
The Act also provides that the lien should be served on the injured person and that service "shall
be made by registered or certified mail or in person." Id.
¶ 36 Here, the record contains two notices of lien from Stroger. Both notices state that Stroger
provided services to Larmena, who was injured "on or about June 06, 2006," and list an address
for Larmena. However, the first notice, dated August 10, 2009, does not list an address for
Stroger and both notices state only that the "parties alleged to be liable to make compensation for
the injuries sustained by the Patient are unknown individual[s]." In addition, the record does not
show that Larmena herself was served with either notice of lien. The August 2009 notice was
received and signed for by someone at the office of Bruce Farrell Dorn & Associates in August
2009; however, there is no signature to indicate Larmena received the notice and the envelope
addressed to Larmena is stamped as having an insufficient address. The second notice, dated
July 15, 2010, was received and signed for by someone at the Dinizulu Law Group, but there is
no signature to indicate Larmena received the notice and the envelope addressed to Larmena is
stamped "Return to Sender."
¶ 37 Nonetheless, in Cirrincione, the First District found a physician's lien was valid despite
technical deficiencies where the injured party’s lawyer had acknowledged the lien. Cirrincione,
- 17 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
287 Ill. App. 3d at 687-88. There, the physician’s lien failed to comply with the requirements of
the Physicians’ Lien Act (770 ILCS 80/1 (West 1994)) 4 because it failed to include, in part: the
injured party’s address, the date of the injury, and the name of the party or parties liable for the
injury. The supreme court affirmed the appellate court’s holding that the lien was valid.
Cirrincione, 184 Ill. 2d at 113. The supreme court noted:
" 'The doctrine of strict construction was never meant to be
applied as a pitfall to the unwary, in good faith pursuing the path
marked by the statute, nor as an ambuscade from which an
adversary can overwhelm him for an immaterial misstep. Its
function is to preserve the substantial rights of those against whom
the remedy offered by statute is directed, and it is never employed
otherwise.' [Citation.]
In this case, the rights of the parties have not been
prejudiced by technical difficulties in the lien. Both [the injured
party’s attorney] and [the injured party] had actual notice, and
those not served with the lien are not parties to this action.
Furthermore, any missing information was already known by [the
injured party's attorney]. In short, the errors were not material. To
invalidate the lien due to the instant technicalities would serve no
purpose and would worship form over substance. It would also be
contrary to the purpose of the lien, which is to lessen the financial
4
See 770 ILCS 23/35 (West 2012).
- 18 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
burden on those who treat nonpaying accident victims." Id. at 113-
14.
In the present case, even if Stroger's lien did not strictly comply with the Act's requirements, it
substantially complied. In addition, Larmena had actual notice of Stroger's lien. In Larmena's
motion to adjudicate and/or quash any and all liens, she stated that a claim had been asserted by
Stroger for a lien of $5,378.40. 5 Therefore Larmena's rights were not prejudiced by any
deficiencies in the lien. Id. Larmena argues that Cirrincione should not apply because it was
decided under a different, old act and because the underlying facts in Cirrincione were different.
However, Larmena fails to cite any authority to support her argument. See Ill. S. Ct. R.
341(h)(7) (eff. July 1, 2008) (the argument section of the party's brief "shall contain the
contentions of the [party] and the reasons therefor, with citation of the authorities *** relied
on"). In addition, although Cirrincione was decided under the Physicians' Lien Act, we note that
the lien requirements under the Physicians' Lien Act are virtually identical to the lien
requirements under the Act. Compare 770 ILCS 23/10(b) (West 2012); 770 ILCS 80/1 (West
1994). We find no reason to conclude that the holding in Cirrincione would not be applicable
under the current Act. Therefore, we find that Stroger's lien was valid.
¶ 38 As a final matter, Stroger claims that, based on the record, it is entitled to its full lien in
case No. 1-13-2552. Stroger argues that no other provider perfected a lien, that it is entitled to
up to one-third of the recovery, and, because its total lien is less than one-third of Larmena's
recovery, it is entitled to its full lien of $4,185.60. See 770 ILCS 23/10 (West 2012) ("the
5
We note that, according to Stroger, Larmena's motion was inaccurate as to its total lien
against her. The bills attached to Stroger's notice of lien in the record show that its total
lien was $4,185.60.
- 19 -
Nos. 1-13-2243 & 1-13-2552 (cons.)
amounts of liens *** are subject to the one-third limitation under this subsection"). Larmena
does not respond to this particular argument. See Ill. S. Ct. R. 341(h) (eff. July 1, 2008) (the
argument section of the party's brief "shall contain the contentions of the [party] and the reasons
therefor, with citation of the authorities *** relied on"). Therefore, we reverse and remand this
cause to the circuit court with instructions to award Stroger its total lien, in the amount of
$4,185.60.
¶ 39 Based on the foregoing, we conclude that the circuit court in case No. 1-13-2243 properly
awarded Stroger its full lien under the Act. We further conclude that the circuit court in case No.
1-13-2552 erred in calculating Stroger's lien from the subtotal resulting after subtracting attorney
fees and costs from Larmena's recovery. Accordingly, we affirm the judgment of the circuit
court in case No. 1-13-2243 and reverse and remand the judgment of the circuit court in case No.
1-13-2552 for further proceedings consistent with this opinion.
¶ 40 Affirmed in part and reversed in part; cause remanded.
- 20 -