thank you justice thomas please the court when name is matthew pfeiffer i represent maxon incorporated the appellant before this court this case provides the opportunity for this court to analyze various public policy considerations and to determine whether and to what extent a written agreement for the release of and family's vacation from certain claims may be inforced this opportunity arises based on a truly unique set of facts in december of two thousand and one the apple e john bank lee was involved in an auto accident during the scope of his employment with max that he submitted a claim on the max it's under insured motorists policy and also filed a worker's compensation claim with the industrial commission in september of zero four september third to be precise the survey includes a trainee demanded settlement of some outstanding medical bills a week later the bank leaves and max it entered into a settlement of all claims and both max it and the bank lose represented by counsel they enter into what was titled a release of all claims and the reste the release of all claims stated that in consideration of a payment of eight hundred thousand dollars to the bank leaves they released acquitted and forever discharged max it from any and all actions in any way growing out of or related to any personal injuries and property damage resulting or to result from an accident that occurred in both of those entities are going to fight as the release sees as the parties being released under this release of all claims of who is the actual employer of the actual employer of the individual that was injured was max incorporated max that max incorporated so those are two separate corporations yes max it incorporated listed it all in this release in terms of are they being identified at all in the release other than that third line of the release of all claims i believe they are not there to find throughout is the real e c but other than that third line i don't believe there are going to fight in the early going to help me on that i'm not sure where you're referring to on the third line of the release of all claims incorporated that's in the release of specifically specifically to max incorporated that all around the wording of the release was that nowhere in that release is there an indication that the workers compensation ok at the time of the entry of our own interpretation shouldn't we consider the language of the release or rather than paragraph by paragraph i think so i think contract law is all stablish you have to take all the terms together you can isolate certain provisions you have to read the entire document as it as it sets you can't focus on specific language in one specific provision well on that point let me ask you another question and look at the whole of the document on page one the third paragraph from the bottom is just one sentence that in a case that we further agree that this really should not be pleaded bias as a bar to any claim or suit any any attempt by max it to raise this release in a subsequent proceeding what this release does is it specifically releases any and all claims that were pending at the time of the execution to exclude the workers compensation claim from coverage under this release and that's simply not the case the the court in her vs wildman herald indicated that anytime you have a general release if there are no claims that were pending at the time of the execution of the release those claims are necessarily included within the scope of the release so our position is as the workers compensation claim was spending at the time and in fact that the man was made a week before the execution of the settlement agreement to settle some of the they image that was part of the worker's compensation  well section twenty three in our opinion respectfully is not a political goal so the facts of this case it's not triggered by this release of all claims the only issue involved with this release is the trial court know what it is whether or any provisions of the act with regard to compensation that they may receive one of the act then there's a second operative portion that holds that any employer who enters into any payment reporting the subtle or compromise a claim without obtaining approval from the commission  shall be barred from raising the defense of limitation in any proceeding subsequently brought by the employee nothing in that section twenty three of the worker's compensation act relates to this narrow issue of whether the release was breached we're not suggesting that mr van cleave had to waive any rights he had under the worker's compensation act he always had those rights his only obligation under the release of all claims was to refrain from further pursuit of claims and indemnify max that to the extent that he did pursue further claims the trial court noted that this really boils down to a breach of contract issue and because of that it doesn't really implicate the workers compensation that you are you are no waive any rights he didn't give up any rights on the workers compensation act what he did was agreed to indemnify max it to the extent that he chose to pursue any further claim against max so in other words had every right to go back to the commission and say you know i want to pursue this worker's compensation claim but if he did that that would trigger access right under the release of all claims to ask for him to indemnify maxa for any damage suffered as a result of him and section twenty three i don't believe puts an onus on the employer to affirmatively appear before the commission to have the subtle men approved the the settlement was in place the release  place it was at the time mr banks leaves and this is van cleaves duty to not pursue anything further with respect to asserting a claim against max it they had the  they had the right under the release to abandon the claim in the workers compensation the works on station claim before the commission they had the ability to pursue a further claim they had the ability to go before the commission themselves and present the settlement and ask for approval but there's nothing in the release of all claims and there's nothing in section twenty three that affirmatively requires the employer to pursue the commission's approval of a subtle however of the facts in zurich and the issues involved in that case i think were vastly different than what we're dealing with here incirlik the issue facing the court was who as between an employer and an employer insurance carrier had to pay a worker's compensation award to an employee when the employee didn't have workers compensation policy renewed didn't involve this again unique set of circumstances where we have  release and in and then of the agreement between an employer employee this is something unique to this case that wasn't in zurich so i don't know that the holding in zurich is necessarily apply quibble here only because we have this release and the section twenty three applies in the face of the written release or a written undertaking a written obligation by mr van cleave to refrain from any further pursuit of claims against max that he knew were pending at the time he entered into the release which he did with the advice of counsel who also signed the release and it did not obligate him in any way to waive any rights it did not obligate him in any way to give up his claim any time be made or brought against the really sees for purposes of enforcing a further claim for damages on account of the alleged damages or injury sustained in consequence of the aforesaid accident and i think that's the ultimate key to this case then they agree to abandon their claims and then if they sought to pursue further claims that they agreed to then to indemnify max that this portion of the release clearly indicates that they had an affirmative duty to maxon incorporated in the event that they pursued any further claim given the fact that the workers compensation claim was pending at the time this release was signed i don't know how you can arrive at the interpretation that the  did that it can't in compass the workers compensation claim heard provides that if you have a general release in a general like it release of all claims that it would necessarily  any claims that are pending at the time be the release assigned that's exactly the situation we have here we had a worker's compensation claim that was pending we had an uninsured motorist policy claim that was pending and this release sought to globally resolve there is no specific mention of the worker's compensation claim itself but again heard suggests that you don't need to have a specific reference to any particular claim if there are known claims pending at the time the release  and also go back two years are you just finished with in that first paragraph when you say is a global release covering at the end of that paragraph the last sentence it says comma and covered by the under limit it to that policy we submit that that was a wages sort of like the situation and what lock it it's just noting a particular claim of a subset of all claims that is particularly being released  including those specifically mention it didn't isolate it to that one claim i think the situation we have here we have any and all known and unknown personal injuries of property damage resulting from an accident on or about the summer twenty sixth two thousand one and and then the rest of that sentence deals with a particular claim out of any and all claims that's being released the comma after the date i think should be of significance of this court i think that the comma that follows the bait can only be interpreted as the coverage of the under insured motorists policy provisions being inclusive of any and all claims without the comma i think you do have a situation possibly where it would be any and all claims that resulted from the action on that date and also satisfies a requirement of being covered under that policy with a comma in place i think it makes a difference i think bar any further claims i'll deal with the rest of the morning your honour's morning council may please a court my name is william kelly and i represent the interests of john van cleave and kelly van cleave in this matter i must admit that although i'm honored for the first time to be standing before this court i never would have expected that when i was first retained to represent john and kelly van cleef back in two thousand and five when i read their complaint in the subject release i was convinced and sure that the complaint had no merit and then i would be able to name dismissal of a case on a motion as a saying basketball i thought was going to be a slam dunk i first read the language of the release which specifically says that they are releasing claims that were under the accident came within the accident and were covered by the under insured motorists policy i learned it be under insured morris policy did not cover workers compensation claims to me it was clear the workers compensation claim was not settled under the plain language of the release and it seems  ironic to have this case come after another case it has to interpret the word and as it was in the prior case at the time i read the complaint i was familiar with section twenty three of the act as i have been involved with workers compensation cases i knew that section twenty three of the access no employee shall have the power to waive any provisions of the act in regard to the amount of compensation except after approval by the commission i knew the commission had not approved this settlement so again i was convinced this case was going nowhere i also knew that at the time john van cleave signed a release you never intended to release his claims as was part of the record his attorney advised him that under section twenty three of the at by signing the release he was not waiving those claims like any good lawyer will i decided won't maybe i'm missing something i decided to do some more research the time the research i found cicadas desert gen x in liability versus the industrial commission three twenty five illinois for fifty two international coal mining company versus the industrial commission to ninety three illinois five twenty four kelley yet concern construction company versus foreman brothers banking company to eighteen illinois appellate three forty five and the case of  zero one sixty eight illinois appellate three fifty five each of these cases each of these cases emphasize that any purported settlement not using the word waiver not using the word release any report of settlement between in an employer and employee in connection with a worker's compensation claim must be approved by the industrial commission the more i look at matches complaints and their arguments and more research i did the more questions i had i could not understand max its argument that it settled the workers compensation soley in mitigation of its damages i have never in my over twenty years of practice seen an argument in this context usually when you have a party that's claiming a breach and they need to mitigate their damages they're going to a third party to mitigate their damages for example a seller of goods sells non conforming goods they go to a third party to cover they buy those goods from a non park from a third party and i have never heard of a case where a non breaching party allegedly mitigates its new images by paying the purported breaching party i thought well there must be some case law in the us all known behold as i did my research i found none i could not find any case that suggests that somebody could pay for breaching party and then suit seek to recover those damages and as i did that research i came up with the fact that i believe the voluntary payment prevent such a scenario to me this is a prime example of what the voluntary payment doctrine seeks to prevent here max it voluntarily pays john being cleave upon john to increase demand in the worker's compensation case as we cited in our brief if they believe john van cleaves demand to be improper they should have asserted at the threshold that is they should have asserted it before the industrial commission so they came to my next question why didn't they assert the release before the industrial commission why didn't they go before the industrial commission and say his claims are released the answer really is simple they knew under section twenty three the act industrial commission coverage and if you look at the day she'll see the first time any monies were paid on this case was in two thousand and four at that point john b a cleve had occurred on and maybe some thousand dollars in medical bills that had gone on paid those he had to be paid medical providers rafting up after him the settlement i'll use the term under the under insured motorists policy he was he had no choice he had to get it done he had to move on and it was very important for him when he settled it that he was not waiving his claim done of the act because his his claims were far greater than that you also see as part of the record pain and suffering but what's important about this is that included claims of over one hundred twenty six thousand dollars that massive face in penalties they had an incentive to settle that worker's compensation case and i believe the arguments that they've made about mitigation of damage is is just a ruse to try to recover that they shifted what should have been the jurisdiction of this matter from the industrial commission they purport to settle a six hundred sixty five thousand dollar case for two hundred thousand dollars and they move remove it then from the jurisdiction of the industrial commission to the circuit court of new page county and they avoided the risk of significant penalties they say that just because he referred to the same medical bills now again remember mexico had an obligation to pay those medical bills under the worker's compensation and it failed to do so as addition the reference to medical bills is a fairy technical scenario in cases where there's a worker's comp case and if attention third party action in this particular instance the whole third party action was under the under insured motorist policy and medical bills are very often used to set a value on a claim they're trying to say that we try to recover those bills twice that's not him that's not true the different coverages i think the case law supports the fact that this isn't a valid claim on their behalf not a part in addition as we cited in the briefs the double recovery doctrine doesn't apply when there's a voluntary settlement now obviously the heart of this case is under section twenty three of the worker's compensation act max its argument is premised on its assertion that john being cleave by signing a release did not call waive his rights under the act as chief justice thomas says when it out i believe this is a matter of semantics and it is an end run around the terms of section twenty breached the release by personal in those claims there is no doubt in my mind that max it maintains john being cleaved settled his workers compensation by signing the release that's precisely what section twenty three the actor vance you cannot settle whether you use the word release and done the fine waive you can't settle a claim without getting the approval industrial commission now max it also tends to argue that their release doesn't provide them with any obligations because it enjoyed only contractual rights under the release as indemnity and release e this is again absolutely not true remember at the time the release was signed john  pending worker's compensation claim john mack said as john van cleave employer had both rights and obligations under the terms of the illinois workers compensation act insert general ursula the industrial commission said three twenty five illinois for fifty two in employer bound by the provisions of the act is not permitted to relieve himself from one my ability under the  at by a private agreement with his employer this is precisely what maxon is attempting to do because they were cited before nine hundred thirty five all that may be true i do not believe this court should ignore the language of that but more importantly i have not seen anything that should change this court's opinion anything any more reasons given why those decisions should not be should not governor is a sad the the general principles under the worker's compensation act the language of section twenty none of that has changed and if there's if there's no questions i don't know if you have any other questions but i can only leave you with the language set forth in municipal court case and i know the a public court can cite to it  but it said the fundamental basis of workman's compensation laws is that there is a large element of public interest in accidents occurring from modern industrial conditions and that the economic was caused by such actions should not necessarily rest upon the public but that the industry in which an accident occurred shall pay in the first interns for such accident yes i agree with counsel that there are public policy considerations involved here those public policy consideration should be in favor of enforcing the terms of the worker's compensation act wish by the way provides benefits to both employers and employees the court in international co is contrary to the policy of the act to allow an employer while choosing to come under its provisions but not by not filing an election in writing to the contrary to relieve himself from liability under the by private agreement or contract with the employee i do submit despite max's arguments to the contrary they did have an obligation if they intended to settle the worker's compensation act by signing a rea twenty three can get used as a sword to carve up the release there's just no basis for that section twenty three calls for two things an employee cannot we have any rights to compensation that may be afforded to him or her under the act and employer cannot use the release in any subsequent proceeding to bar any sort of further claim subsequent claim brought by the employee we didn't have either of those situations here we didn't have an employee waiving his rights we just had an employee indemnifying max it for any further claim that he tried to pursue we didn't have an affirmative obligation under either the release or section twenty three of the act to present anything before the industrial commission the the statute only requires of an employer that you not raise the release or the settlement as a bar in any subsequent proceeding its workers compensation cla was pending for more than two and a half years before the release was ever signed there was no subsequent proceeding that was ever taking place in this case mr van cleave tried to pursue a worker's compensation claim that he file back in two thousand and two so there was really no application of section twenty three based on the facts that we have there's nothing in the release and there's nothing in the statute that require anything of max it two to undertake on its own there's no firmer duties no obligations to max at all it had to do was pay the consideration eight hundred thousand dollars was given to the bank lee what why did you bring this cla if walt if we were to pursue this before the commission i don't think that that would have been the proper form this case involved should quickly and say hey this is deal with the remedies that law was not why did they require why did the statute require the notice of the approval of the commission they're not equipped really well the requirement on the employer is only to the extent that the employer to take a look at it and determine whether relief you know what our position was that really the commission was in the appropriate forum because we were dealing with a breach of contract issue which called for a remedy at law before the circuit court  we were just trying to assert contractual rights under the release at rigor section twenty three meaningless if you could simply avoid it by going to the circuit board well i don't think it would well there's two issues there one i think we're getting back to whether section twenty three even applies and respectfully i do not think that that section applies in this sort of circumstance we like to cite it applies it's possibility i'm sorry it's a possibility that we might decided  it is possible necessary to answer the question yes the the committee we didn't feel it was appropriate to go before the commission because we had what we believed a simple breach of contract issue we didn't have it workers compensation issue that required us to go before the commission and again there's nothing in the release itself that required maxa to go before the commission and as for cuts both ways if if the release was not intended to release the workers compensation claim why didn't the bank leaves have something to that effect specifically inserted into the language of the release you had the benefit of counsel that could have been inserted but it wasn't we had a general release of all claims which would have included at the time the pending workers compensation claim when you look at section twenty three and you look at the language of the release i don't see how max that would have thought it appropriate to go before the commission because max it really didn't have any affirmative obligations to do that all the max it was required to do was exchange monies for a promise of a release and then that so i don't know that it would have been appropriate to go before the commission because max it wasn't required to do so under the release or section twenty three the only thing the section twenty three of the worker's compensation act required was that max it not raise the release  complaint in the circuit court to try to have this resolved we choose not to go before the commission it is a question of whether it was appropriate for you to seek approval we're past that why wasn't it defense raised in the commissions are real well the issue at that point was really to mitigate our damage i mean we had another claim pending now by mr bank leave that we believe was released we had to do everything we could to limit the damage if we  thousand dollars there's a chance that the commission could of the disapproved of the settlement altogether thrown it out thrown out the release and then just kind of increased greatly we were trying to limit th and extent of our damage to do that we wanted to settle this claim that we thought was improper improperly brought wrap that up and then pursue the relief under the release  thing that counsel touched on and we have an interest was the double recovery aspect of this case the very cleaves use the same exact documentation in this renewed attempt to assert their workers compensation claim and that's really a public policy consideration that troubles me is how can an employee a circle a sort of claim then release it knowing full well the terms of the  clarity of the release the any and all claims then pending would be released on abandon and then have the conscience to pursue the claim further to try to get money for the same injury that's exactly what happened here the record shows wasn't a voluntary settlement this was our affirmative obligation to mitigate damages so i think the requirement by law to mitigate our damages takes away the voluntary aspect of the voluntary payment doctrine council cited kim and the seminole litigation cases regarding double recovery doctrine and said it's in a playable settlement agreements that are voluntary again this wasn't a voluntary settlement it was done in light of the legal requirement to mitigate damages and then also the settlement agreements in those cases didn't provide for a specific set off and i believe our case does paragraph three of the release of all claims provides that such offer provides a mechanism maxa to be indemnified from any and all losses or further damage that was absent in those cases and then also those cases involved employers lien rights and that doesn't that doesn't match with the