very my name is steve my john i represent pekin insurance company in this case and this case highlights the distinction that is exists between what is a set off and what is a lean from the moment that the plaintiff apple e filed their declaratory judgment action in this case they kept calling what is a policy set off a statutory lane that same type of discussion was carried through into the appellate court decision which once again calling a policy set off which is been recognized by this court has been a valid set off as a lead the appellate court fit those three should be reversed because they misapplied section three zero five slice five b of illinois worker's compensation the e were no lien workman's compensation was created and it in a fact requires pekin insurance company to pay the legal expenses the plaintiff app another party in dissenting fifth district justice donovan in his dissent basically summed up our entire argument in this case he stated that the appellate court reduced a set off by the by the attorney's fees as if they set off was willing and a fun had been created by the plaintiff when in fact no fun had been created and as a result we believe  their decision should be reversed this case simply did not involve either an actual or potential reimbursement to an employer or workman's compensation carrier of money that they had paid out in it workman's compensation case the pella court reduced beacon's right of set off which is the policy provision which provides that in an uninsured which this case was or an uninsured motorist claim the amount paid to the plaint claimant in their previous work and sont compensation claim this court has recognized that a carrier automobile carriers ride of a set off is consistent with public policy but here that the appellate court reduced an imaginary lean and nonexistent lane i calling it a lien when in fact it was a set  and then provided essentially what is a fun doctor in recovery or if by application of the workman's compensation act a twenty five percent fee for collecting a work comp lane or reimbursing  work comp lane but they never collected and they never reimbursed the plaintiffs in the appellate courts only authority for authorizing a twenty five percent reduction of the policy set off was section three zero five sla b of the illinois workman's compensation act which in its own terms is express only limited to situations where they are in fact has been or will be a reimbursement district rejected an employer's attempt to assert a workman's compensation lien against their employees uninsured motorist benefits so in other words in that case it work compensation carrier paid out their work and compensation benefits to a plaintiff and then they claimed that they could go after their first party coverage under their uninsured motorist benefits and that they work comp carrier or the employer could go and take away that uninsured motors benefit from the insured the illinois fifth district stated rejected this argument and indicated quote as is clear from the text of section five b the recovery of attorneys fees and expenses only applies to employers but regardless of whether this court finds that section three o five b is incorporated in the peak and policy the clear language of phil five three zero five five b of a twenty five percent attorney's fee is only triggered when the attorney actually  from a third party tortfeasor in reimburses the employer or the comp carrier as the fifth district in thesis that quote the bottom line is that the twenty five percent attorney's fees and expenses can only come from the employer and if a recovery and only if a recovery is affected for that employer by the plaintiff's attorney this is not occurring here what he can did after they litigated the issue of the amount of damages that the their insured was entitle to under his uninsured motorist current policy because he was injured by an uninsured motorist with the do as provided by the policy the amount that he could have previously paid in satisfying the workman's compensation claim the this court has stated that they were compensation lien does serve a valid purpose when one exists because it serves the purpose of allowing both the employer and the injured employee an opportunity to reach the true offender for an occurrence an injury while preventing the employee from obtaining a double recovery and in effect what the appellate court did here is sanction a double recovery in the amount of a little over forty thousand dollars by deducting seven an employer was entitle to one hundred percent reimbursement of their comp benefits from a third party without a reduction for fees or expenses and procuring their reimbursement one thousand nine hundred fifty seven the illinois remind you that in this case again there has been no reimbursement there has been no recovery nobody has gone out and chased the uninsured motorist and collected money from him and nobody is going to pay that money to do the carrier but more most importantly the plaintiff has not recovered that money and never will recover that money but notwithstanding the fact that nothing has been recovered and nothing gained the court in effect  fee for services that were never rendered and and has in effect provided for an unjust enrichment this decision is inconsistent with other illinois appellate courts when applying section five b of the worker's compensation act it is inconsistent with the decision from both the first and second district's appellate district courts as judge donovan's dissent pointed out in the case of terri versus state farm mutual automobile insurance company of a second district held that an employer could not assert only a get could not assert a lane under an uninsured or under insured motors policy the second district pointed out that five be only attaches or applies to live billet ian tort not to contractual liability as with an insurance policy likewise in hartford indemnity company versus commons the first district held that a city which was the self insured under workman's compensation act had no interest in payments made to its employee under an uninsured motor provision of his policy so in this in these cases they show that five b as was not adopted and pulled into the act of effect of an insurance policy that says you hundred seventy where the court upheld a case almost identically worded set off provision is is issue at issue in here in this case and in that particular case the court ruled that the carrier could with reduced or uninsured motorist benefit payout by the amount of workman's compensation benefits obtained by the insurer then in one nine hundred seventy eight in the case of strikers a state farm this this court refused to overrule all men and it prevented her precluded and ensured from recovering benefits well wait a minute i want to keep my thoughts straight here well in that particular case and stryker i believe you had a decision where the the uninsured motors benefits were equal to the amount of the workman's compensation benefits paid out so this court said when there was nothing available they both wipe each other out and finally in one thousand nine hundred ninety two this court in a salsa or versus country mutual recognized that this set off provision could be applied setting off workman's compensation benefits paid in then under insured motors case or claim as well as an uninsured motorist claim and in fact insults or the court performed this court perform they did the calculation we performed once the pla obtained his and insured motorists recovery insults or this court stated it's in the context of an under insured motorists claim first in an under insured motorist claim you did docked the amount that the insured received from the b i and she shared then the court indicated it would to dot one hundred percent of the amount with no reduction for fees no expenses from the balance under the under insured motors policy to end the end result being that there was nothing to be recovered on the the policy similar to what occurred in the strike or decision well in requiring pekin to deduct an additional forty thousand four hundred language of the peak insurance policy in addition it is provided a double recovery to the plaintiff by giving him an additional forty thousand four hundred sixty seven dollars above and beyond what he was entitled to if you applied the applicable policy language the pekin policy specifically says that quote any amounts otherwise tailbone for damages under this coverage shall be reduced by all and then all timidly the sole so disillusioned and this court has held that where policy language is clear and unambiguous and where it does not violate public policy that the court must give effect to the intent of the parties and the language of their contract there's been no claim in this case made by the plaintiff that the pekin policy isn't any way unclear are in an ambiguous what that particular statutory provision did was require carriers to provide an identical amount of uninsured motorist coverage for their insured as they have for their vi limits back when i began practicing law insurance companies could offer you one hundred thousand dollars for example and b i limit but then they could offer you twenty thousand dollars and you ulama it so that if you got hit by an uninsured motor should be limited to twenty thousand i think at some point there the there was a requirement under the law that the church had indoor or something if they did not want identical limits between their you and the when it's all the statute six the insurance goes to two one forty three eight two two did was require insurance companies when they write a hundred thousand dollars b i policy is to provide an identical amount of u coverage to their insurer nowhere in that statute does it discuss or create a right for an insured whose lawyer goes out and doesn't collect an imaginary l from an imaginary party that they had to dock twenty five percent as an earned legal fee for service they didn't render well in fact the plaintiff is attempting to  attempting to assert that if we apply a set off as described in the policy that taylor is going to receive less then what he would have received had he been injured by an insured  course first uninsured motorist coverage is a triggered until you have an accident involving an uninsured motorist but uninsured motorist coverage has been interpreted correctly is that temp as an attempt to put an insured in the same position is if they were hit by an insured or fully insured driver now in this particular case it let's say there was a third party out there that it was fully insure while in that course in that particular case there the attorney can go out and it and i'm not talking about insured in the sense of maybe we should take it out of the automobile context let's say a driver's going down the there's some third party non driver that is responsible for him and that type of context a person could collect their workman's compensation benefits for their client and could go after some third party and could create a fund for the benefit of the work comp carrier or an employer to reimburse what they paid out on their workman's compensation but that is not what's occurred here what's occurred here is nothing it's simply the appellate court ruled that at the end of the day even though the policy languages clear even though that policy language is been adopted and approved of by this court we're just going to the mansion that the plaintiffs couns is going to recover and and we're going to take what's called the set off and turn around and call it a lien and then let him to die out from the set off amount twenty five percent of a fee  never incurred never did anything for anyone other than his own client to earn so because of this we would ask that this court reverse the appellate court and order reinstatement of the trial court's decision which actually followed the law and and we thank you do you have any questions for me i everyone else has hopefully i guess maybe had a more interesting case than i did but this is pretty much a routine set please the court i'm with you barry i represent billy taylor and while i i count mr mudge is one of my friends in this case we disagree on almost every point i do believe except he began this argument with this this is a distinction between set off and lee and that's exactly what we are talking about the are going to advance by pekin in this point assumes that we're arguing that we are entitled handed this tortfeasor that was not insured been fully insured and had this proceeded to a recovery in the court and i use this language if uninsured motorist had been insured under the terms of the policy plenty would not have been required to reimburse the worker's compensation carrier to the extent of the attorney's fees incurred this case is evolution of the insurance code that commits with ohman ohman decided after the legislature adopted the uninsured motorist provisions and it is an evolution of language from to strike or to soul search even killing versus state farm to nap because at the beginning when the uninsured motorist provision was adopted it required that the insurance companies make available to all of their insure a policy for uninsured motorist coverage that was equal to the level of financial responsibility twenty thousand still salsa addressed striper addressed that issue in an omen of striker the the claimants came up here and said hey you know we should not and since there is no paper since there nobody's going to collect we shouldn't be responsible for a set off we should not did that set up should not be deducted from the total amount we recover when we are betrayed the uninsured motorist claim and this court said now the purpose of the insurance code the purpose of this i'm in better this adoption of this particular provision that gives us uninsured subsequently under insured coverage is to place the insured in the same position here she would be in should the tortfeasor have been covered now nomen this court but didn't sue was certainly no third party judgment or settlement was obtained it there was no trial court action against mr gentry that isn't right and pekin received no reimbursement whatsoever as a result of the no they did not because pink is also the workers comp carrier and then peek and i just want to make sure the facts right they exercise that set off right under the insurance contract and reduce the plaintiff's liability payout by the amount compeer by the pun a percent of the amount or the does does the wording of five b make any difference at all legal proceedings may be taken against such other person to recover damages notwithstanding there was no legal proceeding against such other person here how how does five b of the because five b is part of the entire worker's compensation act and that is the very substance of the appellate court decision authored justice scolded her because the purpose of the under insured motorist coverage is to place the insured making the claim in the same position they would be in had they been able to file portion relating isn't five be relating to the fact that there's going to be this twenty five percent because the insurance company has something to gain by the plaintiff pursuing a claim against a third party happen that did not happen but that's the distinctive issue the difference in this case from only one to strike or to sulfur all the way down what has been the prevailing underlying issue that this court has is it is state and that is the purpose of the insurance statute is to place the insured in the same position that insured would have been in had he or she been able to file suit against a fully insured tort feature mr perry on basis twenty nine and thirty of the independent three they yours the calculations they put in there say that that or that your client is in the same position but they are incorrect now that's absolutely incorrect the client receives an arbitration award of two hundred fifty that's what billy taylor got two hundred fifty thousand let's assume that is a judgment in court for two hundred fifty thousand now from that two hundred fifty thousand billy reduced by twenty five percent so that billy taylor is not paying the full amount of the fees that have been incurred so billy taylor would have paid back a sum less than the approximately  hundred twenty two hundred fifty last one hundred twenty that's the net amount that billy taylor received from which every attorney i know except for one many years ago but ever attorney i know that calculates their feet this is not just an argument on thi s this is not my argument that i'm entitled to forty thousand feet this is an argument that the insured billy taylor must be in the same position contractually he is intern into a contract with pekin so that he is in the same position he would be in had he filed suit against mr gentry and mr  same liability coverage as as were afforded mr taylor under his liability in this case it was a million i think he had coverage of a million obviously but the million dollar case but mr taylor assumed to have sued mr jim tree and mr gentry had full coverage to cover the full amount of that to fifty and from that point they calculate now just it's it becomes a better simple man had recovered the two fifty he would have reduced it by seventy five percent of the lien approximately one hundred twenty thousand and that net difference would have been the amount to billy taylor from which he would be obligated to pay his fees and the net result would be his of the word against such other person legal proceedings taken against such other person it means something in the context of which it's apply now let me explain that that that's a good legal ease in that what justice golden hirsch found and held what the majority of the appellate court for the fifth district held was once this set office created and this court has already sustained it we're not claiming the set off is not valid but it is based upon the worker's compensation act and they must take the act in its entirety now again that has meaning if you adopt and understand that the purpose of the legislating purpose and i'm being redundant but the legislative purpose of uninsured and under insured motorist coverage is to place the insured in the same position he and she he or she would be in had they been able to file suit against a fully insured party feature that language has meaning under those contacts in that  t there's more of them in such cases over of the action against such other person is brought by the injured goes on a judgement is obtained and paid no judgement or right but no judgement paid here very against another person or settlement it was made was such other person no settlement with another person or with or without suit then from the amount received by such employer there should be paid to the employer the amount of but then you have to have an arbitration of an uninsured motorist but this court has already properly found it's accepted we're not challenging that that even though it in ommen insults or there was no recovery peculiar received benefits what this court said in up holding the language that said that the set off may be applied winstead it would be unjust unfair for the employee for the insured to been a fit in a put a big placed in a position that was better than what he would have been had he filed suit in court against the toward these are properly insured now no doubts or that language applies to the situation where the plaintiff the insured is able to sue a properly insured fully insured court feature and it must be taken in that context because beginning with the very logic adopted by this court sound logic and that is that uninsured and subsequently uninsured under insured motorist coverage is not intended to place either party in a better position ultimately the evaluation of this case and consideration of the calculation i want to emphasize i tried to do it in the brief but just a scolding her concluded was not that pekin must pay of a fee but rather the calculation of the sat all based upon the same factors that would be applied had billy taylor sued mr gentry and mr gentry had two hundred fifty thousand of liability coverage then there would be no question and the calculation that you inquire about those calculations that set forth and in my brief would be exactly what they are two hundred fifty less the pay back of the net workers compensate sation lane with the net attorney that does that they always take it on the net amount after that lien is to docket ever attorney i know it's given their client the benefit of the reduce lien in effect the client ends up with two thirds of that gallant insurance company for the voice from the past is the liability here and they and their fully insured pekin would have gotten the benefit of reimbursement of the  workers compensation but how much would they have got or it would have got it would have gotten one hundred twenty thousand and seventy five percent in this particular case because of the uniqueness of these facts not this it uniquely pekin gets one hundred back i again address is not the issue and it's the very fact of the justice golden hirsch incorporated in his opinion and that is it is not what would  happen can i say this five b apply and must be taken in the context of what would have happened had mr gentry the tortfeasor been fully insured that's the legislative intent of uninsured and under insured motorist coverage it is that very legislative intent that has been the basis of this court's opinions and only sole source striker and a whole list of them because i reiterate the purpose of the set off is to not give either party an unfair advantage because of the contractual provisions if that set off was not a part of this particular language and keep in mind in all mn this court was asked not to apply the set off because the statutory language does not even mention workers comp in this court said no the fact it's not mention that's not the issue the issue is the legislat intent that the insured be placed in the same position as if they've been able to sue an insured party and because of that this court said we're going to allow to settle up to this point i don't know that anyone  addressed the issue of calculating the subtle and that's what this case brings to the forefront a matter of calculations yes that language is in five b but five b apply when there is a third party action and uninsured and under insured motorist coverage is designed to place the insured in the same position as if there was a valid third party action now let me  i refer to it both of us refer to it in our opinion and in that part bad on back a sin on caring reliances place for saying five be shouldn't apply i want to emphasize th terry and mr mudge said it terry did not involve the calculation kerry was an effort by a third party to collect the lien and the court said hold it a third party can't step in here an employer can't step in here and collect the lien because it's not a third party action we're all relied on by justice donovan that's false reliance that is not the issue in this case the issue in this case is one of calculation of the set off to fully comply fulfilling comply with the provisions of the insurance code for those reasons and if there are no other questions but i ask that you sustained the well considered well thought out thank you your thank you your honors i think watching mr barry or are you remind me why i didn't want to answer the questions earlier and i should get my mouth shut anyway your honor say you have hit on the exact issue in this case and and that is that the language of five b requires in quote quote out of any reimbursement received by the employer or sent to this action the employer shall pay his pro rata share of all costs and it and reasonable necessary expenses in connection with such third party claim action or suit where the services of an attorney at law of the employee or dependen have resulted in are substantially contributed to the particular meant by suit settlement or otherwise of proceeds to which the employer is reimbursed in this particular their expense of their comp claim they should not have the benefit of free legal services by the attorney who pursued a third party claim that all totally near to their benefit i want to make another point too there it makes no difference whether peak an insurance company is the work comp carrier as well as the uninsured motors carrier there's an inference that it may make a difference or that some kind of unique facts situation but whether or not he can is let's say it was state farm was the work comp care the important thing under the decisions that i cited earlier state farm can't if they were the comp carrier can't come to mr berry and say hey you got a two hundred fifty thousand dollars un award we want that they can't do that the appellate court decisions are directly employed on on point state that they here cannot approach the first party benefits that are available to employ whether they be uninsured or under insured motors coverage so they kind of want to have it both ways the plaintiffs argued against their award being able to be attached by an employer who paid out comp but then he turns around and says here we didn't give you a reimbursement we didn't do anything for you i didn't make any benefit to you and i want forty thousand dollars because of it the language of the statute can't be any clearer than it is and mr berry has not provided any calculations different than these can he he had a one line calculation but these calculations on page twenty nine and thirty clearly shows what occurs under the circumstances of this case and that the claimant is an identical situation he would have been had that third party tortfeasor been fully insured because had that third party tortfeasor been fully insured mr barry could have gone out and got a judgment against him he could have paid seventy five bit percent to the common carrier he'd keep his forty thousand dollars for his fee for collecting that for the comp carrier and it wouldn't put any more money in it mr taylor's pocket it what we're talking about here is an attempt to collect a legal fee on an imaginary recovery and imaginary reimbursement which never heard it the judge donovan said it all he basically stated  are faced here with a contractual set off not a third party claim lane and he too stated there was no recovery of any lien from a third party tortfeasor and as a result you cannot  award an imaginary fee for a nonexistent recovery and if you don't have any other questions i thank you for your attention today and have a nice rest of the week it in thank you mr much and thank you mr berry case number