First Division 

July 17, 2006 

1-05-3284 

ARCADY TROGUB and ROZALYA TROGUB, 

Plaintiffs-Appellants, 

v. 

MATTHEW K. ROBINSON, 

Defendant 

(Government Employees Insurance 

Company, 

Respondent-Appellee). 

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Appeal from 

the Circuit Court 

of Cook County 

 

04 M 300760 

Honorable 

Michael T. Healy, 

Judge Presiding 

JUSTICE McBRIDE delivered the opinion of the court: Plaintiffs Arcady and Rozalya Trogub accepted $10,000 to 

settle a lawsuit they filed against defendant Matthew K. Robinson 

after a minor two-car collision on August 28, 1999, near the 

intersection of Milwaukee Avenue and Lake Cook Road in Wheeling, 

Illinois. Robinson rear-ended the Trogubs' southbound vehicle. 

The Trogubs' automobile insurance carrier, respondent Government 

Employees Insurance Company or GEICO, paid $7,650 for the 

Trogubs' resulting medical care and sought a portion of the 

Robinson settlement proceeds based on a subrogation clause in 

GEICO's written insurance policy. The circuit court determined 

GEICO was entitled to subrogate $7,650, less 40% to reflect the 

attorney fees the Trogubs had agreed to pay on the amount 

recovered in the action and less $336 the Trogubs incurred in 

litigation expenses, for a net recovery to GEICO of $4,254. The 

Trogubs appeal, contending GEICO is not entitled to any part of 
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the Robinson settlement proceeds or alternatively, that the 

circuit court should not have disallowed an additional $297 in 

litigation expenses. Robinson takes no part in this appeal. 

Unless otherwise stated, the following facts are disclosed 

by the record on appeal. According to the Trogubs, they 

originally filed suit against Robinson on November 15, 2000, but 

voluntarily dismissed the action on June 27, 2003, because their 

treating physician was not available when the matter was called 

for trial. The record on appeal includes a copy of the complaint 

the Trogubs filed against Robinson on February 24, 2004. 

According to the Trogubs, they reached a settlement agreement 

with Robinson on April 4, 2005. The record also discloses that 

on April 5, 2005, the Trogubs filed a "motion to strike [GEICO's] 

alleged subrogation lien," in which they indicated GEICO "now 

seeks to attach" the Robinson settlement and that GEICO's conduct 

was improper because it had not appeared or petitioned to 

intervene in the Trogubs' suit against Robinson or filed "any 

other action to recover [its] medical payment." The Trogubs did 

not indicate how or when they notified GEICO of their suit, 

Trogub v. Robinson, No. 04--M1--300760 (Cir. Ct. Cook Co.) 

(hereinafter Trogub v. Robinson) or how or when the Trogubs were 

notified of GEICO's intention to pursue its subrogation interest. 

On May 3, 2005, GEICO filed an appearance in Trogub v. 

Robinson, a written response to the Trogubs' motion to strike the 

lien, and a cross-motion to sanction the Trogubs' attorney 
1-05-3284 

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pursuant to Supreme Court Rule 137 for filing a motion that was 

not well grounded in fact or law in order to harass or delay 

GEICO's ability to enforce its subrogation rights. 155 Ill. 2d 

R. 137. GEICO's written response included a copy of its 

insurance contract with the Trogubs, which stated in relevant 

part: 

"CONDITIONS 

The following conditions apply to this 

Coverage: 

* * * 

5. SUBROGATION 

When we make a payment under this 

coverage, we will be subrogated (to the 

extent of payment made by us) to the rights 

of recovery the injured person or anyone 

receiving the payments may have against any 

person or organization. Such person will do 

whatever is necessary to secure our rights 

and will do nothing to prejudice them. 

This means we will have the right to sue 

for or otherwise recover the loss from anyone 

else who may be held responsible." 

GEICO also attached copies of its business records indicating the 

insurance company made payments on the Trogubs' behalf to Spevak 

Medical in Wheeling, Illinois. 
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In the reply brief the Trogubs filed in support of their 

motion to strike GEICO's lien, the Trogubs indicated that when 

they agreed to settle with Robinson for $10,000, they were 

operating under the "reasonabl[e] belie[f]" that GEICO had 

already enforced its subrogation rights against Robinson's 

insurer, State Farm Insurance. The Trogubs did not provide any 

facts or otherwise explain why this belief was "reasonable" or 

disclose whether they had been represented by counsel at the 

time. They further indicated, however, that by the time their 

lawyer took his litigation expenses and 40% contingency fee and 

GEICO took its share, the Trogubs would have little cash to show 

for their personal injury action, and they argued these 

circumstances would have "a chilling effect" on all subsequent 

small personal injury actions. 

On June 7, 2005, the circuit court denied the cross-motions. 

After the circuit court indicated GEICO was entitled to 

subrogate and declined to strike the lien, the Trogubs filed a 

motion and an amended motion to adjudicate the amount of the 

lien. In the amended motion, the Trogubs indicated they still 

objected to GEICO's position, but were willing to address the 

amount GEICO might be entitled to, because the question was 

delaying payment from Robinson. They reiterated that their 

attorney was entitled to 40% of the lawsuit's proceeds and 

further stated: 

"3. Plaintiffs have incurred the 
1-05-3284 

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following litigation expenses: 

a. Clerk - 11/15/00 - Initial 

Filing 

$220.00 

b. Sheriff - 11/15/00 - Service 

Attempt 

 33.00 

c. Clerk - 1/26/00 - Alias Summons 5.00 

d. Special Process Server -

12/30/00 

 75.00 

e. Clerk-2/24/04-Refiling [after 

voluntary nonsuit] 

 271.00 

f. Sheriff - 2/2/04 - Service 

Attempt 

 33.00 

g. Clerk - 4/27/04 - Alias 6.00 

h. Sheriff-4/27/04-Service 34.20 

i. McMorke [sic] Court Reporters -

3/5/05 

 90.00 

j. Postage, copying, phone, etc. 54.00 

k. Police Report 

 TOTAL 

 5.00

$826.20" 

In a written response, GEICO pointed out that no attorneyclient fee agreement or expense receipts or citation to case law 
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had been provided in support of the claimed expenses and fees, 

particularly where counsel was seeking more than the usual 33.33% 

contingency fee and the expenses of a different lawsuit. GEICO 

suggested that counsel receive the standard one-third or $2,550 

of the $7,650, and that the expense claim be reduced to $263. 

GEICO also asked the court to order the reimbursement of its 

appearance fee, since GEICO had appeared (as "Leinholder 

Respondent") only to defend the Trogubs' motions regarding its 

lien. 

In reply, the Trogubs and their attorney tendered affidavits 

attesting to the 40% contingency agreement. The Trogubs further 

swore they had not been aware that GEICO paid their medical bills 

or that GEICO had subrogation rights. Counsel also tendered a 

$90 expense receipt from McCorkle Court Reporter, Inc. 

As indicated above, on September 13, 2005, the circuit court 

ruled that GEICO was entitled to $7,650, less $3,060 (40%) for 

the Trogubs' attorney fees, and $336 in litigation expenses, for 

a net recovery of $4,254 from the $10,000 settlement. The 

circuit court disallowed all the litigation expenses purportedly 

incurred in 2000 in the Trogubs' first action against Robinson 

(designated as items a through j in the Trogubs' motion), and 

disallowed the unexplained entry for "Postage, copying, phone, 

etc." in the present action (designated as item j in the Trogubs' 

motion). The circuit court determined the allowable expenses 

totaled $439 and that GEICO's proportionate share of the allowed 
1-05-3284 

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expenses was 76.50%, or $336. The circuit court also ordered the 

clerk of the circuit court to reimburse GEICO's $143 appearance 

fee. 

The following principles are generally relevant to this 

appeal. "Subrogation simply means substitution of one person for 

another; that is, one person is allowed to stand in the shoes of 

another and assert that person's rights against the defendant." 

D. Dobbs, Law of Remedies _ 4.3(4), at 604 (2d ed. 1993). 

"Factually, the case arises because, for some justifiable reason, 

[a party] has paid a debt owed by the defendant." D. Dobbs, Law 

of Remedies _ 4.3(4), at 604 (2d ed. 1993). "Having paid the 

defendant's creditor, the [party] stands in the creditor's shoes 

*** and 'is entitled to exercise all the remedies which the 

creditor possessed against the defendant." D. Dobbs, Law of 

Remedies _ 4.3(4), at 604 (2d ed. 1993), quoting American Surety 

Co. of New York v. Bethlehem National Bank of Bethlehem, 314 U.S. 

314, 317, 86 L. Ed. 241, 244, 62 S. Ct. 226, 228 (1941). "Thus, 

a subrogee merely succeeds to the legal rights or claims of a 

subrogor." 73 Am. Jur. 2d Subrogation _ 1, at 542 (2001). 

Subrogation rights originated in common law to prevent unjust or 

unearned enrichment of one party at the expense of another, but 

may also be created by statute or contract. Aames Capital Corp. 

v. Interstate Bank of Oak Forest, 315 Ill. App. 3d 700, 706-07, 
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734 N.E.2d 493 (2000). In the case of an insurance contract, 

subrogation rights arise where (1) a third party has caused a 

loss and is primarily liable to the insured for the loss, (2) the 

insurer is secondarily liable to the insured due to an insurance 

policy, and (3) the insurer pays the insured under that policy, 

thereby extinguishing the debt owed by the third party. State 

Farm General Insurance Co. v. Stewart, 288 Ill. App. 3d 678, 686, 

681 N.E.2d 625 (1997). When an insurance contract gives the 

insurer the right to subrogate to the extent of its payment, the 

contract will be enforced as written and the insurer will receive 

full subrogation, even if the insured's losses exceed the amount 

it recovers from the tortfeasor and the insurer. Capitol 

Indemnity Corp. v. Strike Zone, S.S.B.&B. Corp., 269 Ill. App. 3d 

594, 596-97, 646 N.E.2d 310 (1995) (rejecting claim that insured 

should be made whole first); Eddy v. Sybert, 335 Ill. App. 3d 

1136, 1139, 783 N.E.2d 106 (2003) (insurer's right to subrogation 

did not depend on whether insured was made whole by settlement 

with tortfeasor). 

The Trogubs raise five main arguments on appeal. The 

Trogubs' first contention is that GEICO failed to produce "any 

authenticated evidence" that it paid for their medical care after 

they collided with Robinson. We find, however, that the Trogubs 

have waived this contention by failing to cite any portion of the 

record on appeal indicating that they objected to the circuit 

court's reliance on GEICO's exhibits. The record on appeal does 
1-05-3284 

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not include a transcript of the proceedings conducted on 

September 13, 2005, or a bystander's report, and thus, there is 

no way of knowing whether the Trogubs made an objection and 

preserved this issue for the purposes of appeal. In order to 

preserve a question for appellate review, a party must make 

appropriate objections in the trial court. Bohannon v. Schertz, 

21 Ill. App. 3d 149, 151, 315 N.E.2d 316 (1974). In addition, 

appellants, which in this instance are the Trogubs, bear the 

burden of providing a sufficiently complete record to support 

their claim or claims of error, and any doubt arising from the 

incompleteness of the record will be resolved against the 

appellants. Linn v. Damilano, 303 Ill. App. 3d 600, 603, 708 

N.E.2d 533 (1999), citing Foutch v. O'Bryant, 99 Ill. 2d 389, 

392, 459 N.E.2d 958 (1984). Because the record does not 

substantiate that the Trogubs objected to the circuit court's 

reliance on GEICO's exhibits, we decline to address whether the 

exhibits were sufficiently "authenticated." 

The Trogubs' second main contention is that the parties' 

insurance contract required GEICO to file a separate action in 

order to pursue its subrogation interest. More specifically, 

they argue the contract's subrogation clause, quoted in full 

above, "uses non-standard language concerning subrogation," "is 

ambiguous," and should have been construed more favorably to the 

Trogubs. The Trogubs fail to explain what a "standard" 
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subrogation clause might state or why they consider this 

particular clause unclear, but Aames Capital suggests that even 

without the contract language, GEICO's involuntary payment of 

medical expenses that were caused by Robinson's tortious contact 

with the Trogubs' car would have created an equitable right to 

recoup those funds. Aames Capital, 315 Ill. App. 3d at 706-07 

(indicating subrogation rights may arise in equity or contract). 

 In addition, we are not persuaded by the Trogubs' unsupported 

contention that because the contract language provides GEICO 

"will have the right to sue or otherwise recover the loss from 

anyone else who may be held responsible," then the "only 

inference which can be drawn is that [GEICO must file] a separate 

subrogation action or a petition to intervene [to recoup its 

loss]." "The law is well settled that if an insurance contract 

is so drawn as to be equivocal, uncertain or ambiguous, as to 

require interpretation because [it is] fairly susceptible to two 

or more different, but sensible and reasonable constructions, the 

one will be adopted which *** is most favorable to the insured." 

 (Emphasis added.) Boal v. John Hancock Mutual Life Insurance 

Co., 305 Ill. App. 563, 567. 27 N.E.2d 555 (1940). See also 

Bulley & Andrews, Inc. v. Symons Corp., 25 Ill. App. 3d 696, 323 

N.E.2d 806 (1975) (indicating contract language is ambiguous when 

it is reasonably susceptible to different constructions). 

However, we do not consider the GEICO policy to be equivocal, 

uncertain, or ambiguous; nor do we consider the Trogubs' 
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"inference" to be a reasonable interpretation of the clearly 

worded policy. "'A policy term is not ambiguous because the term 

is not defined within the policy or because the parties can 

suggest creative possibilities for its meaning.'" Chatham Corp. 

v. Dann Insurance, 351 Ill. App. 3d 353, 358, 812 N.E.2d 483 

(2004), quoting Lampham-Hickey Steel Corp. v. Protection Mutual 

Insurance Co., 166 Ill. 2d 520, 529, 655 N.E.2d 842 (1995). "In 

addition, a court may not read an ambiguity into a policy just to 

find in favor of the insured." Chatham Corp., 351 Ill. App. 3d 

at 358. To the contrary, we find no problem of construction or 

interpretation and we read "to sue for or otherwise recover" to 

mean that GEICO may use litigation or other less cumbersome, less 

expensive means, such as correspondence or telephone calls, to 

pursue its loss. Accordingly, we turn to the Trogubs' other 

arguments. 

The Trogubs' third main contention on appeal is that GEICO's 

failure to comply with various Illinois statutes prevents it from 

legitimately claiming any of the Robinson settlement proceeds. 

 For instance, the Trogubs argue section 2-403(c) of the 

Code of Civil Procedure (735 ILCS 5/2-403 (West 2002)) required 

GEICO to bring a subrogation action in its own name in order to 

enforce its subrogation interest and they cite Nitrin, Inc. v. 

Bethlehem Steel Corp., 35 Ill. App. 3d 577, 342 N.E.2d 65 (1976), 

as an instance in which this requirement was enforced against an 

insurer. We are not persuaded that the statute required GEICO to 
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initiate an action, because the statute is entitled "Who may be 

plaintiff -- Assignments -- Subrogation" instead of "Who shall be 

plaintiff -- Assignments -- Subrogation" and the body of the 

statute plainly indicates that in the event a subrogation action 

is brought, which did not occur here, the subrogation action 

"shall be brought either in the name or for the use of the 

subrogee": 

"Who may be plaintiff -- Assignments --

Subrogation *** 

*** 

(c) Any action hereafter brought by 

virtue of the subrogation provision of any 

contract or by virtue of subrogation by 

operation of law shall be brought either in 

the name or for the use of the subrogee; and 

the subrogee shall in his or her pleading on 

oath, or by his or her affidavit if pleading 

is not required, allege that he or she is the 

actual bona fide subrogee and set forth how 

and when he or she became subrogee." 735 

ILCS 5/2-403(c) (West 2002). 

Since subrogee GEICO did not bring an action but only responded 

to various motions about subrogation which the Trogubs filed in 

Trogub v. Robinson, section 2-403(c) has no relevance here and is 

not a basis for concluding that the circuit court's order denying 
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the "motion to strike alleged subrogation lien" should be 

reversed. Moreover, the Trogubs fail to cite and we were unable 

to find any language in Nitrin indicating section 2-403(c) 

requires a subrogee to enforce its rights by filing a separate 

action. 735 ILCS 5/2-403(c); Nitrin, 35 Ill. App. 3d 577, 342 

N.E.2d 65. 

The Trogubs similarly contend the intervention section of 

the Code of Civil Procedure (735 ILCS 5/2-408 (West 2002)) and 

Herriford v. Boyles, 193 Ill. App. 3d 947, 550 N.E.2d 654 (1990), 

obligated GEICO to bring an intervening petition in Trogub v. 

Robinson to enforce its subrogation interest. Generally, the 

intervention statute provides that upon timely application, the 

court may, in its discretion, allow anyone to intervene in an 

action. 735 ILCS 5/2-408 (West 2002). The Trogubs conclude that 

since GEICO did not adhere to the cited authority, the circuit 

court's adverse orders should now be reversed. We were unable to 

find any relevant language in the cited authority. In addition, 

we reiterate that GEICO was only responding to various motions 

which the Trogubs filed regarding GEICO's right to subrogate. We 

are not persuaded by the Trogubs' bald contention that unless a 

subrogee such as GEICO motions and obtains leave of court to 

intervene in an action, the subrogee cannot be permitted to 

respond to a pending motion that seeks judicial determination of 

the subrogee's rights. 
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The Trogubs also contend that "in essence" GEICO and the 

Trogubs have respectively become a judgment creditor and debtors, 

and, therefore, section 12-1001(h)(4) of the Code of Civil 

Procedure (735 ILCS 5/12-1001(h)(4) (West 2002)) renders the 

$10,000 settlement payment from Robinson "untouchable" by GEICO. 

 They cite People ex rel. Director of Corrections v. Booth, 215 

Ill. 2d 416, 423, 830 N.E.2d 569 (2005), for the proposition that 

section 12-1001 "supersede[s] a contractual lien [such as 

GEICO's] which is not recognized by statute." We find this 

statutory argument no more persuasive that the Trogubs' two other 

statutory arguments. Article 12 of the Code of Civil Procedure 

is entitled "Judgments -- Enforcement," and section 12-1001 in 

particular renders certain "personal property, owned by the 

debtor *** exempt from judgment, attachment, or distress for 

rent." 735 ILCS 5/12-1001 (West 2002). The subparagraphs of the 

statute specify the exempted property, including, as examples, 

payments that are traceable to a crime victim's reparation law, a 

life insurance contract, and, notably, "a payment, not to exceed 

$7,500 in value, on account of personal bodily injury of the 

debtor."1

 The Trobugs' reliance on this statute is misplaced 

since the only "debtor" in this case is Robinson. It is 

 1

 The statute was recently amended to exempt a payment of 

up to $15,000 "on account of personal bodily injury of the 

debtor." Pub. Act 94-293, _ 5, eff. January 1, 2006. 
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undisputed that Robinson, by virtue of his tortious contact with 

the Trogubs' vehicle in 1999, became liable for their resulting 

compensable loss, and GEICO, by virtue of its insurance contract 

with the Trogubs' was secondarily liable for their loss. The 

subrogation authority cited generally at the outset of this 

opinion deems Robinson to be a debtor. It also deems the Trogubs 

to be his creditor as well as GEICO's subrogor, and GEICO to be 

the subrogee that has "paid the insured under [the] policy, 

thereby extinguishing the debt of [Robinson,] the third party." 

State Farm General Insurance, 288 Ill. App. 3d 2d at 686-87, 681 

N.E. 2d 625. Furthermore, the case the Trogubs rely upon, Booth, 

215 Ill. 2d at 425, 830 N.E.2d 569, indicates that section 12-

1001(h)(4) is triggered when a civil action affects the proceeds 

of an earlier, separate action or claim, which did not occur 

here. In Booth, a prisoner received a payment in excess of 

$40,000 in settlement of a personal injury action he brought 

against a bus company prior to his incarceration. Booth, 215 

Ill. 2d at 418, 830 N.E.2d 569. After the State became aware 

that the prisoner obtained this settlement, it brought a separate 

civil action against him based on a statute that makes 

incarcerated persons responsible for the expenses of their 

incarceration. Booth, 215 Ill. 2d at 418-19, 830 N.E.2d 569. 

The State obtained a judgment against the prisoner for more than 

$40,000 and an order attaching the proceeds of his earlier 

personal injury lawsuit. Booth, 215 Ill. 2d at 420, 830 N.E.2d 
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569. The court later determined, however, that section 12-

1001(h)(4) was applicable and shielded the first $7,500 of the 

$40,000 personal injury settlement from the State's statutory 

judgment against the prisoner. Booth, 215 Ill. 2d at 421, 830 

N.E.2d 569. The case does not indicate in any way that section 

12-1001(h)(4) is triggered when there is only one civil action 

instead of two civil actions, or that section 12-1001(h)(4) is a 

legitimate means of defeating a contractual right to subrogate. 

In short, we are not persuaded that the subrogation clause 

in the GEICO contract or any section of the Code of Civil 

Procedure should be construed to obligate GEICO to litigate in 

order to enforce its subrogation rights. 

Our conclusion that GEICO was not required to litigate to 

recoup its loss also dispenses with the Trogubs' other main 

contention on appeal that, "Since GEICO did not file a separate 

subrogation action or file a petition to intervene, GEICO failed 

to place [the Trogubs] on notice of its intention to assert a 

lien on the [Trogubs'] recovery in their third party action." 

GEICO was not required by contract or statute to file a 

subrogation action or a petition to intervene, or otherwise give 

the Trogubs notice of its intent to pursue its subrogation 

rights. 

The Trogubs' last contention is that the circuit court 

incorrectly disallowed reimbursement of $297 to their attorney, 
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consisting of 76.50% of the $333 in filing fees and service of 

process expenses incurred in the Trobugs' first action against 

Robinson, and 76.50% of $54 in expenses purportedly incurred in 

the present action for "Postage, copying, phone, etc." The 

Trogubs ask us to remand this cause to the circuit court so that 

the additional funds can be awarded to their counsel. The 

Trogubs rely on Lemmer v. Karp, 56 Ill. App. 3d 190, 195, 371 

N.E.2d 655 (1977), which does not indicate an insurer's 

subrogation lien should be reduced for expenses incurred in some 

other action or for undocumented expenses. The Trogubs fail to 

provide reasoned analysis indicating that we should expand 

Lemmer's holding and fail to cite any other authority. They 

contend there is "no precedent" supporting the circuit court's 

determination -- apparently forgetting that they brought the 

motion which included their request for fees and costs, and that 

a moving party always bears the burden of proving its entitlement 

to fees and costs (Kaiser v. MEPC American Properties, Inc., 164 

Ill. App. 3d 978, 983, 518 N.E.2d 424 (1987)), and that the 

moving party must provide detailed records substantiating the 

reasonableness of the requested amounts. Prior Plumbing & 

Heating Co. v. Hagins, 258 Ill. App. 3d 683, 688, 630 N.E.2d 1208 

(994) (a party seeking attorney fees bears the burden of 

presenting sufficient evidence from which the trial court can 

render a decision as to their reasonableness). A fee award 

cannot be based upon the court's conjecture or on the opinion or 
1-05-3284 

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conclusion of the moving attorney. Kaiser, 164 Ill. App. 3d at 

984. 

Finally, GEICO asks this court to impose sanctions against 

the Trogubs' attorney pursuant to Supreme Court Rule 375(b) for 

bringing a frivolous appeal solely to harass and needlessly 

increase GEICO's litigation expenses. 155 Ill. 2d R. 375; see 

e.g., Sterling Homes, Ltd. v. Rasberry, 325 Ill. App. 3d 703, 759 

N.E.2d 163 (2001) (sua sponte raising question of whether 

sanctions should be imposed on appellant where appeal was an 

attempt to delay the proceedings and harass the opponent). While 

we have found all of counsel's arguments to be wholly 

unpersuasive, the circumstances do not suggest the appeal was not 

taken in good faith and was intended to be abusive. Accordingly, 

we decline to order the imposition of sanctions. 

Affirmed. 

CAHILL, P.J., and BURKE, J., concur.