No. 2--06--0139 filed: 2/6/07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DEBORAH ST. PIERRE, ) Appeal from the Circuit Court ) of Wi nn eb ag o C ou nt y. Plaintiff-Appellee, ) ) v. ) No. 04--L--188 ) KARL C. KOONMEN, ) ) Defendant ) ) Honorab le (O hi o C as ua lt y Ins ur an ce Co mp an y, ) Joseph G. McGraw, Intervenor-Appe llant). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE CALL UM delive

red the o pinion of t

he court : Intervenor, Ohio Casualty I nsurance Company

(Ohio Ca su al ty) , appe als th e circu it cou rt's order denying its claim for a lien agai nst the p roceeds of a legal malpra ctice settlement between plaintiff, Debora

h St. Pierre, and her former attorney , Karl C. Koonmen. The cour t ruled tha t Ohio Casualty was not entitled to reimbursement becau se Koonmen did not cause the injury for which Ohio Casualty

paid bene fits. Ohio

Casualty argue s that its po licy

unambig uously provides that it is entitled to reimbur

sement re gardle ss of whether St. Pi erre rec overed from the original tortfeasor. We affir m. When St. Pierre was involved i n an auto a ccident , Ohio Casu

alty paid her benefit s. Ohio Casua lty's policy provides that if Ohio Casualty pays under the

policy and the insured " recovers damages from another," she shall reimburse Ohio Casualty for any pay ments it made.No. 2--06--0139

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St. Pierre h

ired Koo nmen to sue the other driver, who was allege dly at fault for the acc ident. However, Ko onmen did

not file suit within the limitations period. St. Pierre then sued Koonmen for legal malprac ti ce. The parties eve ntually settled the malpra

ctice a ction for $100,000. Ohio Casualty asserted against the settlement procee ds a lienin the amount of the payments it made. The trial court adjudicated the lien by holding that St. Pierre was not required t o reimbur se Ohio Casualty . Ohio Casu

alty appeals
. Ohio Casualty co nte nds that it may assert its lien ag ainst the proceeds of the malpractice action. It contends that its pol icy

provides that if the

insured r ecovers damag es "fr

om anothe

r," it is entitled to reimbursement regardless of the party from whom

the insur ed recovers. Th

us, the fact th at St . P ie rr e s ue d h er at to rn ey r at he r t ha n t he or ig in al to rt fe as or sh ou ld no t b ar re co ve ry. Ini ti al ly, we note that the trial court based its ruling primarily on its interpr etation of the policy. The construction of a contract is an issue of law that we review de novo . Illinois Farmers Insurance Co. v. Marc

hwiany , 222 Ill. 2d 472, 476 (2006). The trial court relied on Eastman v. Messner , 18 8 Ill. 2d 404 (1999). There, an insura nce company paid workers' compensation benefits to the plaintiff. The pla intiff hired the defendan t attorney to pursue a negligence a ction against a third party that was responsible f

or the plain tiff's injuries. When the defendant did not file a complaint within the limitations period, the plaintiff sued him for ma lpract ice. T he ins urer so ught t o int ervene , clai ming a lien against any damages that the plaintiff might recover. Thetrial court denied the petition to intervene. Eastman , 188 Ill. 2d at 406- 07. The supreme c ourt aff irme d, holding

that the p lain lang

uage o f section

5(b) of t he Workers' Compensation Act (820 IL CS 305/5(b) (W est 2004)) did not permit the insurer to be reimbursed from the plaintiff's malpractice rec overy. Eastman , 188 Ill. 2d at 409-10.No. 2--06--0139

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Sec tion 5(b) provides that where compensation is pay able under circumstances crea ting a "legal liability for dama ges on the part of

some per son," le gal pro ceeding s may be institut

ed aga inst that person, provided that if a judgment or settlement is obtained from "suc h other person," then the worker s' compensa

tion insure

r is entitle d to be re im bursed f or the be nefits it p aid out. 82 0 ILCS 305/5(b) (West 2004). Eastmanheld that the statute's pl ain la nguage limits the insurer's rig ht of reimburs ement to c ases whe re the ju dgment or settlem

ent is against the person

responsible for the injury for which the insurer made the pay ment. Bec ause t he legal malpractice defe ndant did not
cause the initial injury, theinsurer was not entitled to be reimbursed from the settle ment proc eeds. Eastman , 188 Ill. 2d at 409-10. Ohio Casualty

contends that Eastmanis distinguishable because it interpreted a statute rather thancontractual language , as is at issue here. O hio Casua lty p oints out tha

t section 5 (b) spec ifically restric ts the right of reimbursement to situations where damag es are recovered fr om "such o t her person," which refers to the person respon sible for th e specific injury

for which the insurance benefit s we re pa id . O hi o C as ua lt y ar gu es th at it s p ol ic y does not contain a similar restriction and that its reimbursement provision applies if the insured recovers from any one. If Eastm anheld only that section 5(b)' s plain language prohibited the insurance company fromreceiv

ing rei mburseme

nt, we mig

ht agre e with Ohi o Casualty that it is inapposite. However, Eastmancontains additional policy rationale s that apply with equal forc e here. Eastmanremark

ed on a pr

ovis ion of sec ti on 5(b) that allowe d the insur ance company

to institute a subrogation action

if the insured failed to file his or her own action. Eastman , 188 Ill. 2d at 414, citing 820 IL CS 305/5(b) (West 1996). The cour t noted tha

t allowing the insur er to maintain
a subrogation action against the insured' s attorney had the potential to interfere w ith the att or ne y-No. 2--06--0139

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client relation ship. The

court noted that ge nerally " a malpractice plaintiff must prove that the attorney owed the plaintiff a

duty of care arising from the attorney-client relationsh ip." Eastman , 188 Ill. 2d at 414. For

this reas on, I llinois is among the major ity o f states h

olding that malpra

ctice c laims may notbe assigned. See Christison v. Jones , 83 I ll. App. 3d 334, 338-39 (1980); see also National Union Fire Insuranc e Co. v. Salter , 717 So. 2d 141 (Fla. App. 1998). Here, the record gives no indication that Ohio Casualty interfer ed in any way with S t. Pi erre's actionagainst Koonmen. Nevertheless, permitting a n insurer to be reimbursed fromthe proceeds of such an a ction cou ld crea te an inc entive f

or the ins urer tomeddle in

the clien t's rel ationship

with he r a tt or ne y, a ll ow in g t he in su re r t o d o i nd ir ec tl y wh at it co ul d n ot do di re ct ly. Eastmanalso pointed outthat the malpractice plaintiff might not be fully compensated if he had to re imburse the insure r. Whilethe collateral source rule would permit the insured to rec over inthe under

lyin g tort c ase the a

mounts reimburs ed by

insuranc e, those

amounts a

re not re covera

ble in a malpractice action. Malpractice dama ges arestrictly

limited to the amount t

he clien t actuall y lost due to the

malpractice, whi ch would exclude a mounts received from insurance. Eastman , 188 Ill. 2d at 412-13. Here, because the malpractice case was settled, we have no way of knowin

g what s pecific damages the settlement was intended to cover. The malpractice complaint is rather vague and does notattempt to

itemize da

mages. Nevertheless, under Eastman , the presumption is thatthe settlement
was not intend

ed to allo w St. Pie rre co mpensation for the amounts she had already received from her insurer. Ohio Casualty insists that the policy prov isio n in question unambiguously requir es reimbursem ent and should b e given effect. I t is true that where a policy provision is clear andNo. 2--06--0139

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unamb iguous, its language must be taken in its plain, ordinary , and popular sense. Trav eler s Insurance Co. v. Eljer Manufacturing, I nc. , 197 Ill. 2d 278, 301 (2001). Howeve r, the pr ovision in question i s not unamb iguous. Read literally, the reimburse

ment provision would require repay ment if the insured recovers any damage s from anyone

for any reason. The a

b surdity of such a c onstruction is seen by consideringa scenario in which the insured i s invo lved in an other an d unrela ted automobile ac cident,
or even some

oth er inc ident that d oes no t inv olve i nsura nce. Ac cordi ng to Oh io Cas ualty's interpretation, it would

then be e ntitled to proceed s from the insured' s recove

ry in the unre lated ca se sufficient t o offset its payment to the insured in this case . The error of this view of the policy langua ge is also seen by

noting that the pol icy

is for automobile-related risks, and not professional negligence

or malpra

ctice. St
. Pierre s

uffere d injury

from Koon

men's a lleged malpractice. I

t is this injury for which the settlement compensated her. While the measure of da mage s might be her damages stemming from

the auto a

ccident , the injur

y is nevert heles s beyond t he sco pe of co verage in Oh io Ca su al ty' s p ol ic y. Thus, we are justified in reading additional language into the provision to clari fy the part ies' me aning. Accord ingl y, we ho ld that the provision is ambiguous and we construe it against the drafter, in this case, Ohio Casualty . See State Farm Fire & Casua lty Co. v. Hooks , 366 Ill. App. 3d 819, 829 (2006). We thus infer that the injury f or which the insured c ollects damages must be the

sa me injury for which the insurer paid benefits. Accordingly , the policy langua ge doe s not dicta

te a depa rture fr om Eastman
. The judgment of the circuit court of Winnebago County is affirmed. Affirmed. O'MALL EY and BYRNE, JJ., concur.