High Court reverses Fifth in funeral home driver's suit

Kelly Holleran Nov. 24, 2008, 10:21am


The Illinois Supreme Court reversed a decision by the Fifth District Appellate Court, denying a Herr Funeral Home driver more than $40,000 worth of attorney's fees he sought after an accident.

Billy Taylor, the driver, claimed he was entitled to $40,467 in attorney's fees from Pekin Insurance Company after he was struck by an uninsured motorist on Aug. 4, 1999, while working for Herr.

Pekin acted as Herr's workers' compensation insurance carrier and also as the company's automobile liability policy agent.

After the accident, Taylor filed a workers' compensation claim and received $162,588.33 in benefits. He also filed a claim under the uninsured-motorist provision and was granted $250,000.

Of the $250,000, Taylor received $87,411.67 – the difference between the $250,000 and the workers' compensation benefits he received.

The uninsured-motorist provision does not grant attorney's fees, the Supreme Court wrote in its opinion.

However, Pekin felt he should be eligible to receive attorneys' fees due to a section in the Workers' Compensation Act that allows employees to collect attorneys' fees.

"He argues that if Pekin is allowed to set off against the uninsured-motorist payment any amount paid under workers' compensation law, that 'law' should include all provisions, including section 5(b)," Justice Anne Burke wrote in the opinion.

To reach a conclusion, the Supreme Court decided to examine the language of the section because the auto policy only broadly refers to the Workers' Compensation Act.

In studying the language, the Supreme Court concluded Taylor was not eligible to receive attorney's fees because there was no third party involved in paying damages. In order to receive the fees, the statute states a third party must be involved.

"As Justice Donovan correctly noted in his dissent: 'No monies were paid back to the workers' compensation carrier or employer. There simply was no recovery or reimbursement triggering the reduction for 25 percent attorney fees under section 5(b) of the Act,'" the opinion states.

Even if Taylor had recovered his $250,000 from a third-party, he would have still been required to pay an attorney and would still only have received $87,411.67, the Supreme Court found.

"Plaintiff is in no better or worse position than he would have been in had he received a recovery from a responsible third party," Burke wrote.

Also, under the statute, the attorney – not Taylor – would be eligible to receive the fees, according to the opinion.

"There is no statutory or contractual basis to compel Pekin to pay an attorney fee in the amount of 25% of its contractual setoff where no third-party claim has been filed," the opinion states.

All seven justices concurred with Burke's opinion and affirmed Madison County Circuit Court's earlier findings.

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