1 NOTICE Decision fi led 05/21/07. The text of this decision may be changed or correct ed prior

to t he fi ling of a Peti tio n for

Rehearing o r th e disposit ion of

the same. NO. 5-06-0273 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

________________________________________________________________________ JI M BURG ESS , JR. , an d JAMES ) Appeal f rom the MUFFL EY, ) Circui t Court of ) St . Clair

County. Plaintif

fs-Appellees, ) ) v. ) No. 05-AR-248 ) TASH ON DA BR OO KS, ) ) Defendant ) ) (The People of the State of I llinoi s, ) Ho nora ble ) Pa trick M . Y oun g, Intervening Plaintiff-Appellant). ) Jud ge, p resid ing.

________________________________________________________________________ PR ESIDIN G JU STICE W ELC H d elivered th e opin ion o f the co urt: On February 27, 2003, the pla inti ff, J im Burges s, Jr. , was driv ing acarwh ile on d uty with the Il linoi s Secr etary of Stat e Police when he was "rear-e nded" by a car bei ng dri ven by Tashonda Brooks. Burgess fil ed a clai m for worke rs' compensati on bene fits against h is employe r, the St ate of I llinois. Burg ess and the State ente red int o a settlement agree ment that was approved by t

he Il linoi s I ndustri al Commissi on on August 23, 2004. The terms of the sett lement

agreement included the fol lowing language: "This is a compromise sett lement of a dispu ted cla im," an d "E ach p arty w aives an y right to ever reopen thi s clai m under any secti on of the [W orkers' Compen sation] Act." Bu rgess rec eived $ 19,1 38.4 8 in sett lement of his workers' compe nsation claim. Therea fter, on February 25, 2005, Burgess fil ed a com plaint in the circ uit cou rt of St. Clair County agai nst Brook s, all egi ng that her neg lig ence had c a used the ac ciden t and h is resul tinginjuries. On April 20 , 200 5, the St ate fi led a p etition to interv ene based upon2

secti on 5(b) of t

he Work er s' Comp ens at io n Ac t ( th e Ac t) (8 20 I LCS 305/5(b) (W est 2004)), wh ich all ows an empl oyer t o joi n in an act ion byan empl oyee t o reco ver dama ges fro m anot herparty in cases where t he employee has recei ved worke rs' compensati on benef its

. Leave to int ervene was grant ed on July 29, 2005, and the S tate 's complai nt in int ervention
was fil ed that

date. The S tate sought to prot ect and pr eserv e i ts l ien and right to reimbur sementof am oun ts paid to Burgess in settlem ent of th e w orkers' com pens ation c laim from any amoun ts recovered by B urgess from B rooks. B ur ge ss 's co mpl ai ntag ai ns t B ro ok s wa s s ubm it te d t o a rb it

rati on. Ul timat ely, af

ter findi ng that the parties h ad pa rticipated in the arbitration in g ood fait h, the arbit

rator s found in favor of Burgess an d against Bro oks a nd awarded Burgess damages in the amount of $19,00 0. O n J an ua ry 20 , 2 00 6, B ur ge ss fi le d a m ot io n t o d et er m in e t he am ou nt of th e S ta te 's lienpursuant

to section 5(b) of the Act , in w hich he arg ues that the St ate had waiv ed any such lien or ri ght of

reimbur sement by v irt

ue of the l anguag e in the sett lement agree m en t which provi ded, "Each part y waives anyright to ever reopen thi s clai m under any section of the Act." The Stat e object ed to the motion, arguing that it had not waived i ts l ien by v irt

ue of the above-q uoted langua ge in the settlement agreemen t. On April10, 2006, the circuit court of St . Clair

County ruled t

hat the lang u age contai ned in the s ettl ement agreem ent did c onstitute a waiv er of the Stat e's workers '
com pens ation lien und er sectio n 5(b ) of the Act. On April 19, 2006, purs uantto S upreme Cou rt Rule 30 4(a) (210 Ill. 2d R. 3 04(a)) , the circ uit court found that there was no just
reasonfor delaying the en forcemen t or appeal of the order. T he St at e's notice of appeal was fil ed May 10, 2006. On appeal, t

he State arg

ues that the ci rcuit

court er red in cons truin g t he settlement agree ment as co nt ai ni ng a wa iv er of th e S tate ' s wo rker s' com pensati on lien be cause the3

quotedlanguage re fers only to Burge ss' s clai m for benef its and notto th e S ta te 's independent statutory right to asse rt a lien, th at the right o f the State to assert a li en is imp lied in the sett lement

contrac t, and t

hat any waiv er of t

he State' s li en mus t b e exp licit. Th e only ques tio n before us on appeal i s the pr opriet y of the circuit

court' s constr

uction of

th e sett leme nt contra ct ente red into betw een B urgess a nd th e State an d w hethe r it effectively waivedth e S tate ' s l ie n. Thi s i s aque st io n of law, wh ic h we re vi ew de novo

. In re Foreman , 365 Ill. App. 3d 6 08, 611 (2006). In cons truing a se ttlemen t agreem ent, w e mu st start w ith the plain and ordinary meaningof the language of the contract, unless the language is ambiguou s. In re Estate of Powless , 315 I ll. App. 3d 859, 863 (2000) . I n the case at bar, neithe r part y argues that t

he sett lement

agree men t is am bigu ous ; they simp ly d isagre e on its me anin g. It is the duty of this court t o constr

ue and enforc e the agreement a s writt en. In re Estate of Pow less , 315 Ill. App. 3d at 863. The Stat e argue s that

the quoted lan guage from the settlemen t agreement refers only to Burgess 's right to r eope n the clai m f or be ne fi ts an d d oe s n ot re fe r t o t he St at e's in dependentright to asse rt its statutory lien. W e see n o reas on to acce pt the Sta te ' s argume nt, and w e find it to be c ont rary to th e pla in an d or din ary mea nin g of th e lan guage of the agreement. W e believe that the settlement agreem ent wa s meant to disp ose of all matters of disput e between the parti es and res olve all i ssues relating to Burgess' s claim for benefit s, including the State's right to asse rt a lie n. W e fin d no langu age in the se ttlemen t agreem ent, and particu larly in th e langu age spe cifically at is sue, which i ndicat es that the parti es int ended that the lan guage ap plied o nly to Burgess 's right to r eopen his cl aim for bene fits and not to the Stat e' s right to " reopen thi s clai m" by as s erting it s right to a l ien. The set tleme nt agree ment provides, " Each party waiv es any right to ever reopen this claim under any secti on of the Act ." (Emphasi s adde d .) We believ e that this language re fers to both parties and4

involves a waiver

of any and al l ri ghts to reopen t he matte r under any and all s ecti ons of the Act, including section 5(b). F rom th is langua ge it seem s clear to us tha t Bur gess gave u p his right to seek

additi onal worker s' compensati on benefi ts and the State ga ve up its righ t to assert a lie n agai nst any amount s recov ered by Burge ss fr om a third party. W e note that t he record dem onstra tes that a lthough Bu rgess ha d no t filed his action against Brook s at

the time of the worker s' compensati on sett lement , the S tate was aware of the circumst ances of B ur ge ss 's accident

and the pot entia l of an ac tionaga ins t Broo ks. Accor ding ly, at t he ti me it entere d into t

he sett lementag reement, the St ate was in a posit ion to k

nowingly and intentio nally wa ive its right to a lien or to seek r eimburs ement i n the ev ent of such an act ion. De spite wha t we find t o be the plain la nguage of the s ettlemen t agreem ent, the State argues that t

he mandatory terms of s ecti on 5(b) of the Act are impli ed terms of the s ettl ement agree ment and serve to p rese rve the State's lien w here th at lien is n ot exp licitly waived by the terms of the settlement agr eement. The State correctly argues that the prov isi ons of secti on 5(b) of t

he Actare ma ndato ry an d that in the absenc e of a w aiver by the emp loyer,
an employee is required t o rei mburs e the emplo yer f rom anyrecov ery he rece iv es from a third party. See Ullman v. WolverineInsurance Co. , 48 Ill. 2d 1 , 7 (19 70). T he State argues that the ma ndato ry pro vis ions of s ecti on 5(b) became implied t erms of t he settlement agree ment by o peratio n of law and th at, by enterin g into the agreem ent w ithout s pecific ally
exc ludin g or m odi fyin g the e ffec ts of t he la w, the c ont racti ng pa rties a re d eem ed to have
acce pted th atla w a s a part of their agr eement. S ee S& D Servi ce, I nc . v . 9 15

- 92 5 W. Schubert Con dom inium A ss'n , 132 I ll. App. 3d 1019, 1023 (1985) . Final ly, t he State argues that be cause the sett lement agree ment did not

explic itly waive t

he St at e's statutory right to assert a lie n , the parties acqui esced in t he provi sions of

secti on 5(b) of t

he Act becomi ng impli ed ter

ms of t he ag reeme nt. Of cou rse, t his onl y bring s us around t o the ori gina l questi on of whetherthe St ate di d explic itly waive i ts st atutor y right to a li en by vi rtue of the5

langua ge of the settleme nt agree men t. Relyingon th e app ellate co urt's recen t decisio n in Gallagher v. Lenart , 367 I ll. App. 3d 293, 30 2-03 (20 06), appeal all owed , 222 I ll. 2d 570 (2006), t he State argues that

in order to wa ive its stat

utory r ight

to a li en, an employe r must do s o explic itly and affi rmati vel y and that such a waive r cannot be impli ed simpl y by a lack of any ref

erence t o the li en in the sett lement

agreement. Bu rgess argu es that th e case at bar is more fact ually s imil ar to anot

her of the appellate cou rt's r ecent dec isions, Bor rowm an v. Prastein , 356 Ill. App. 3d 5 46 (200 5), and B urgess argues that w e should fo llow that dec ision instead of Gallagher

. In Borrowman , 356 Il l. App. 3d at 550-51, the Fourt h Distri ct of t

his court held t

hat whe re an employer

knew of the e xist ence of the employ ee's action against a negligent third party prior to enterin g into a workers ' c ompensati on settlement agree ment with t

he employee, and w here th e emp loyer d id not ex plicitly res erve its right to a l ien ag ainst the proce eds of the thir d-part

y acti on in the s ettl ement agreement but agree d that t

he settlement

was "full, final[,] and c omp lete," it had effec tiv ely waiv ed its stat utory l ien by not expli citly reser ving it. In Gallagher , 367 Ill. App. 3 d at 29 8, the First D istrict of this c ourt re je c ted the holdingof Borro wman , findi ng it to be "unsuppor

ted by case law, contr ary to s evera l principles behindthe Act , and at odds wit h genera l contract l aw." The Gallagher cour t held that the absenc e of any ref

erence t o an employer' s li en in a set tl ement agreement, without more, cannot constitut e a waiver of that lien but that s uch a waiver

must be expl icitly and affirma tively stat ed in the agree ment and cannot simpl y be impli ed by a lack of any ref

erence to that lien. Gallagher , 367 Ill. App. 3d a t 302-03. We need n ot here determine which of these tw o ho ldings is, in our o pinion , corre ct. Even were we to adoptthe holding of Gallagher , it w oul d no t aid t he St ate b eca use , un like Ga ll agher , the set

tleme nt ag reement in the case at bar doe s contain an expli ci t an d6

affirm ative waiver of

the St ate' s li en rights. The se ttl ementagree ment in Gallagher does not conta in any language ev en remotely simi lar t o that c ontaine d in the a greeme nt in t he case at barand on which the circuit court relied. In the settlem ent agre emen t in Gallagher , only t he employee explic itly waivedany rights–hi s rights t o revi ew under secti ons 19(h) and 8( a) of the Act (820 ILCS 3 05/19(h), 8 (a) (W est 2000)). In Gallagher , there i s no expli cit wai ver of any rights by the employer. In t he case at

bar, however , the se ttl ementagr eement provides, "Each party waives any right to ever reo pen th is cl aim under any s ecti on of the Act." We find t his l anguag e to be suf fici ently e xplicit and aff irmative with res pect t o the St at e's waiver of

its stat utory l ien purs uant to s ecti on 5(b) of t he Act. Accord ingly, we affirm the judgment of t

he circ uit cour

t of S t. Clair County.

Affi rmed.

W EX STTE N an d STE W ART , JJ., concu r.NO. 5-06-0273 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ JI M BURG ESS , JR. , an d JAMES ) Appeal f rom the MUFFL EY, ) Circui t Court of ) St . Clair

County. Plaintif

fs-Appellees, ) ) v. ) No. 05-AR-248 ) TASH ON DA BR OO KS, ) ) Defendant ) ) (The People of the State of I llinoi s, ) Ho nora ble ) Pa trick M . Y oun g, Intervening Plaintiff-Appellant). ) Jud ge, p resid ing.

___________________________________________________________________________________ Opini on Fi led : May 21, 2007

___________________________________________________________________________________ Justi ces : Honorable Th omas M . Welch, P.J.

Honorable James M. W exstt en, J., and Hon orable B ruce D . Stewart, J., Concur

___________________________________________________________________________________ Attorn eys LisaM adigan , Attorn ey G enera l, State of Illinois, Ga ry Fe inerm an, So licitor G enera l, for Jan E. H ughes, Assistant Attorney Gen eral, 100 W . Rand olph Street, 12th F loor, Appe llant Chicago, IL 60601

___________________________________________________________________________________ Attorn ey Eric Kirk patri ck, #3 Executive Woods Court, Suit e 100, Belle vil le, I L 62226 for Appell ee

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