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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

GC AMERICA INC, 

Plaintiff,

v.

KEVIN HOOD, LAW OFFICES OF GOLDBERG & 

GOLDBERG

Defendants.

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COMPLAINT

Plaintiff, GC AMERICA INC, (“Plaintiff”), by and through its attorneys, KOLB CLARE 

& ARNOLD PC, submits this Complaint against Defendants, KEVIN HOOD (“Hood”) and THE 

LAW OFFICE OF GOLDBERG & GOLDBERG (“Goldberg”) as follows:

NATURE OF ACTION

1. This is an action under Section 502(a)(3) of the Employee Retirement Income 

Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1132(a)(3), for equitable relief to

remedy Hood’s and Goldberg’s violations of the terms of a certain employee health benefit plan

(“the Plan”) sponsored by GC America Inc. Plaintiff seeks equitable relief in the form of a 

declaration of Plaintiffs’ rights, constructive trust and/or equitable lien upon amounts held by any 

Defendants, that belong to the Plan, in accordance with ERISA § 502(a)(3), 29 U.S.C. § 

1132(a)(3).

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JURISDICTION

2. This Court has original and exclusive jurisdiction over Plaintiff’s claims for relief 

under this count pursuant to ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1). 

VENUE

3. Venue is proper pursuant to ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2), of ERISA 

because on information and belief the at least some of the Defendants reside in this judicial district 

and because, on information and belief, some of the funds at issue are being held in this judicial 

district.

PARTIES

4. Plaintiff sponsors and is a fiduciary of the GC America Inc. Group Benefit Plan

(“the Plan”). The Plan is an employee welfare benefit plan within the meaning of ERISA § 3(1), 

29 U.S.C. §1002(1).

5. At all relevant times, Kevin Hood was a plan participant/plan beneficiary in the 

Plan. Goldberg was a law firm retained by Hood to represent him in a claim for personal injuries 

he sustained that were caused by negligent third parties and Goldberg did represent Hood for all 

or some of such claims.

FACTUAL BACKGROUND

6. The Plan provides health benefits to eligible GC America Inc. employees and their 

eligible spouses and dependents. The Plan is self-funded by GC America Inc. The terms of the 

Plan are contained in the the Plan’s Summary Plan Description (“SPD”) and have been amended

from time to time as appropriate over the relevant time period. True and correct copies of the 

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relevant excerpts from such documents are attached as Exhibit A to this Complaint.

7. As of April 7, 2009 and prior thereto, Kevin Hood was enrolled in the Plan as a 

beneficiary/dependent. 

8. The summary plan description for the Plan contained the terms of the Plan to which 

both Plaintiffs and Hood were obligated.

9. The summary plan description states, in pertinent part, the following at p. 63-64: 

“Covered Persons, are being provided benefits pursuant to this group health Plan. This 

Plan is designed to cover You and Your Dependent(s) with health benefits. This Plan is 

not intended to serve as a supplement to, or replacement for, any payments or benefits 

You or Your Dependent(s) have or may recover from any Other Party when charges are 

Incurred as the result of an Accident, Illness, Injury or other medical condition caused by 

an act or omission of said Other Party. Benefits under this Plan are excluded subject to the 

terms and conditions of this Subrogation, Reimbursement and Offset Provision anytime 

there is an Other Party who is liable or responsible (legally or voluntarily) to make 

payments in relation to the Accident, Illness or Injury.

For purposes of this section, Other Party is defined to include, but is not limited to, the 

following: 

 The party or parties that caused the Accident, Illness, Injury or other medical condition; 

 The insurer or other indemnifier of the party or parties who caused the Accident, 

Illness, Injury or other medical condition; 

 The Covered Person’s own insurer including, but not limited to, uninsured motorist, 

underinsured motorist, medical payment, no-fault insurers or home-owner’s insurance; 

 A worker’s compensation or school insurer; 

 Any other person, entity, policy or plan that is liable or legally responsible to make 

payments in relation to the Accident, Illness, Injury or other medical condition. 

For purposes of this section, Recovery is defined to include, but is not limited to, any 

amount paid or payable by an Other Party through a settlement, judgment, mediation, 

arbitration, or other means in connection with an Accident, Injury or Illness. 

This section is applicable when a Covered Person and/or his or her Dependent(s) have 

Incurred charges for an Accident, Illness, Injury or other medical condition in connection 

with an act or omission of any Other Party. If the Covered Person and/or his or her 

Dependent(s) have the legal right to seek a Recovery from such Other Party, benefits will 

only be payable if You and Your Dependents agree to the following: 

 That the Plan is subrogated to all rights the Covered Person may have, and You and 

Your Dependents acknowledge that the Plan will have a first priority lien and right of 

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recovery, on any Recovery received from any Other Party as a result of an Accident, 

Illness, Injury or other medical condition caused by an act or omission of the Other Party. 

Any Covered Person accepting benefits from the Plan assigns from any such Recovery an 

amount equal to the benefits paid by the Plan. A Covered Person further agrees that notice 

of this assignment presented to the Covered Person’s attorney and/or insurance company 

or Other Party responsible for payment of the damages is binding on the party receiving 

such notice. 

 That the Covered Person, or their legal representative, shall notify the Plan of any 

claim or potential claim the Covered Person and/or their Dependent(s) have against any 

Other Party within 30 days of the act which gives rise to such claim. That, if requested, 

the Covered Person or his or her Dependent(s) or legal representative shall supply the 

Plan with any information that is reasonably necessary to protect the Plan’s subrogation 

interests. 

 If an act or omission of an Other Party causing an Accident, Illness or Injury results in 

payments being made under the Plan, that neither the Covered Person nor their 

Dependent(s) do anything that would prejudice the Plan’s rights to recover payments. 

 That, if requested, the Covered Person shall execute documents (including a lien 

agreement) and deliver instruments and papers and do whatever else is necessary to protect 

the Plan’s rights. Such documents may require the Covered Person to direct their attorney 

(and other representatives) in writing to retain separately from any Recovery that the 

attorney or representative receive on the Covered Person’s behalf an amount of money 

sufficient to reimburse the Plan as required by such agreement and to pay such money to 

the Plan. Failure or refusal to execute such documents or agreements or to furnish 

information does not preclude the Plan from exercising its right to Subrogation or obtaining 

full reimbursement. In the event the Covered Person does not sign or refuses to sign such 

an agreement, the Plan has no obligation to make any payment for any treatment required 

as a result of the act or omission of any Other Party, such agreement is expressly 

incorporated in this Plan and will be provided to the Covered Person at anytime upon 

request. 

 The Plan is also granted a right of reimbursement from the proceeds of any Recovery 

obtained or that may be obtained by the Covered Person. This right of reimbursement runs 

concurrent with and is not necessarily exclusive of the Plan’s subrogation and lien rights 

described above. A Covered Person shall promptly convey to the Plan any amounts 

received from any Recovery for the reasonable value of the medical benefits advanced by 

the Plan or provided by the Plan to the Covered Person. 

 In the event that the Covered Person fails to cooperate with the Plan or fails to comply 

with the terms of this provision, the Plan may offset or otherwise reduce present or future 

benefits otherwise payable to the Covered Person or their Spouse or Dependent under the 

terms of the Plan. Moreover, in the event that a Covered Person fails to cooperate with the 

Plan, the Covered Person shall be responsible for any and all costs Incurred by the Plan in 

enforcing its rights, including but not limited to attorney’s fees. 

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 That the Plan has a right to recover, through subrogation, reimbursement, offset or 

through any other available means the following: 

 Any amount from the first dollar, that the Covered Person or any other person or 

organization on behalf of the Covered Person is entitled to receive as a result of the 

Accident, Illness, Injury or other medical condition, to the full extent of benefits paid or 

provided by the Plan; and 

 Any overpayments made directly to providers on behalf of the Covered Person for the 

Accident, Illness, Injury or other medical condition. 

 That the Plan’s rights under this section shall be in first priority, to the full extent of any 

and all benefits paid or payable under the Plan, and will not be reduced due to the Covered 

Person’s own negligence or due to the Covered Person not being made whole. 

 That the Covered Person shall be solely responsible for all expenses of recovery from 

any Other Party, including but not limited to all attorney’s fees and costs, which amounts 

will not reduce the amount of reimbursement payable to the Plan under the operation of 

any common fund doctrines. 

 That the Plan will not pay any fees or costs associated with any claim or lawsuit without 

the Plan’s express written consent in advance. 

 That the Covered Person or their legal representative or Guardian, shall be considered a 

constructive trustee with respect to any Recovery received or that may be received from 

any Other Party in consideration of an Accident, Illness, Injury or other medical condition 

for which they have received benefits. Any such funds will be held in trust until the Plan’s 

lien is satisfied.” (Exhibit A)

10. In 2009, Hood sustained injuries in an automobile collision (the “Collision”) for 

which a third party(s) was liable. Subsequently, Hood became the victim of medical negligence 

stemming from treatment relating to the Collision.

11. The Plan paid medical expenses of approximately $1,732,846.51 on behalf of Hood

for treatment of the injuries he sustained as a result of the Collision and medical negligence. 

12. The Plan paid the benefits referenced in the paragraph above and Hood accepted 

them under the condition that he reimburse the Plan, to the extent of benefits paid, from funds he 

obtained from liable third party(ies).

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13. Plaintiff has been informed that pursuant to work performed by Goldberg for Hood, 

Hood obtained a judgment and/or settlement from the parties responsible for his injuries in an 

amount in excess of seven million dollars in 2017 (“lawsuit recovery”). 

14. Hood and/or Goldberg received funds from the tortfeasors and/or their insurers 

who injured Hood as trustees for the benefit of Plaintiff to the extent of Plaintiff’s payments. They 

were on notice of Plaintiff’s reimbursement interest and lien at all relevant times.

15. Plaintiff has made repeated demands to all Defendants for tender of the third party 

funds recovered to the extent of the Plan’s payments for benefits in the amount of $1,732,846.51.

Despite repeated demands, those Defendants have refused to reimburse the Plan out of the funds 

they have received for the injury claims of Hood. 

16. Upon information and belief, Defendants may be in possession of the remaining 

settlement funds belonging to the Plaintiff.

COUNT I

CLAIMS FOR RELIEF UNDER ERISA § 502(a)(3)

17. Plaintiff re-states and re-allege paragraphs 1 – 16 of the Complaint as if fully set 

forth herein. 

18. The Plaintiffs have a right to reimbursement for the $1,732,846.51 in medical 

benefits it paid on behalf of Hood. 

19. Defendants have refused to reimburse the Plan, in violation of the terms of the Plan.

20. Defendants have been unjustly enriched by this refusal to reimburse the Plan for 

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the medical benefits it paid on Hood’s behalf. 

21. As a result of Defendants’ violation of the terms of the Plan, the Plan has been 

harmed and Plaintiffs seek all appropriate equitable relief, pursuant to ERISA § 502(a)(3), to 

enforce the terms of the Plan, including, but not limited to: 

(a) the imposition of a constructive trust and equitable lien in favor of the Plaintiff

upon the settlement proceeds identified herein, plus accumulated interest; 

(b) an accounting of all funds received by Hood and Goldberg stemming from the 

recoveries made for Hood on his injury claims and all records of transfer of such 

funds to any person or entity for any purpose;

(c) an equitable surcharge to be imposed on Defendants for failure to return the 

property due Plaintiff and any unjust enrichment accumulated to date for failure to 

return such property;

(c) a declaration of the Plan’s ownership of the above-referenced settlement proceeds 

up to the full amount of payments made by the Plan for Kevin Hood’s medical 

expenses and that such is a first priority right; and 

(d) an injunction order directing Defendants to pay or turn over such settlement 

proceeds, plus accumulated interest and unjust enrichment to the Plan to the extent of 

its interest therein, and attorneys’ fees incurred. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the Court enter a Judgment and Order in their favor 

including, but not limited to:

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(a) the imposition of a constructive trust and/or equitable lien in favor of the

Plaintiff upon the settlement proceeds identified herein, plus accumulated 

interest; 

(b) an accounting of all funds received by Hood and Goldberg stemming from the 

recoveries made for Hood on his injury claims and all records of transfer of 

such funds to any person or entity for any purpose;

(c) an equitable surcharge to be imposed on Defendants for failure to return the 

property due Plaintiff and any unjust enrichment accumulated;

(d) a declaration of the Plaintiff’s ownership of the above-referenced settlement 

proceeds up to the full amount of payments made by the Plan for Connie 

Marable’s medical expenses and that such is first priority right; and 

(e) an order directing Defendants to pay or turn over such settlement proceeds, 

plus accumulated interest, to the Plan to the extent of its interest therein. 

(f) ordering Defendants to pay Plaintiffs’ reasonable costs and attorney’s fees 

incurred in connection with this action; and 

(g) any other relief the Court deems just and equitable. 

COUNT II

(Tortious Interference with Contract)

22. Plaintiff incorporates by reference paragraphs 1-21 of this Complaint as if fully 

set forth here.

JURISDICTION

23. This court has supplemental jurisdiction over all other claims that are so related to 

claims in the action within the court's original jurisdiction that they form part of the same case or 

controversy...” 28 U.S.C. § 1367. Significantly, “[s]uch supplemental jurisdiction shall include 

claims that involve the joinder or intervention of additional parties.” Id. Since Plaintiff's state law 

claim for tortious interference with contract against Goldberg arises from the same facts giving 

rise to the Plan's federal claims against Hood and Goldberg, supplemental jurisdiction rests in this 

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court.

24. As early as September 2011, Goldberg knew or should have known that Plaintiff 

had a contract with Hood for payment of medical expenses and that such contract required 

reimbursement to Plaintiff from any funds secured by Hood from third parties up to the amount 

Plaintiff paid for such injuries. At that time, Goldberg was aware that Plaintiff, through its agents, 

was asserting its claim for reimbursement on any funds Hood might recover from third parties

including any lawsuit recovery. Such was an equitable lien on those third party funds.

25. Goldberg knew at the time of the settlement of the medical negligence claim in 

2017 that Hood had a responsibility to honor the reimbursement terms set forth in the Plan from 

the lawsuit proceeds.

26. On information and belief, when the medical negligence claim settled for a figure 

in excess of $7,000,000.00, the settlement funds were deposited into an account controlled by 

Goldberg. 

27. In 2017, Rule 1.15 of the Illinois Attorneys Rules of Professional Conduct at section 

(d) stated, “Upon receiving funds or other property in which a client or third person has an interest, 

a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise 

permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or 

third person any funds or other property that the client or third person is entitled to receive and, 

upon request by the client or third person, shall promptly render a full accounting regarding such 

property.” Section (e) of that rule stated, “(e) When in the course of representation a lawyer is in 

possession of property in which two or more persons (one of whom may be the lawyer) claim 

interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer 

shall promptly distribute all portions of the property as to which the interests are not in dispute.” 

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Comment 1 to that rule stated, “A lawyer should hold property of others with the care required of 

a professional fiduciary.”

28. Despite knowing the foregoing, Goldberg intentionally and maliciously induced 

and/or advised Hood not to honor Plaintiff’s equitable lien on the lawsuit proceeds and instead 

distributed the funds recovered in the lawsuit to Hood without first paying Plaintiff what it was 

due under the terms of the Plan in violation of the aforementioned ethics rule and established 

practice in the profession.

29. Hood then breached his contract with Plaintiff and has refused to reimburse the 

Plaintiff the funds due it from the lawsuit proceeds.

30. As a result of such actions, Plaintiff has been damaged in an amount of 

$1,732,846.51, plus loss of accrued interest and has been forced to incur attorney’s fees and costs 

in order to pursue recovery of such funds.

WHEREFORE, Plaintiff seeks judgment against the Law Offices of Goldberg & 

Goldberg in an amount not less than $1,732,846.51, plus prejudgment interest and post judgment 

interest and reasonable attorney’s fees and costs incurred in the pursuit of such judgment.

COUNT III

(Conversion)

31. Plaintiff incorporates by reference paragraphs 1-30 of this Complaint as if fully 

set forth here.

JURISDICTION

32. This court has supplemental jurisdiction over all other claims that are so related to 

claims in the action within the court's original jurisdiction that they form part of the same case or 

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controversy...” 28 U.S.C. § 1367. Significantly, “[s]uch supplemental jurisdiction shall include 

claims that involve the joinder or intervention of additional parties.” Id. Since Plaintiff's state law 

claims for conversion against Goldberg arise from the same facts giving rise to the Plan's federal 

claims against Hood and Goldberg, supplemental jurisdiction rests in this court.

33. Plaintiff had and has a right to the portion of the lawsuit recovery immediately upon 

its creation in an amount of $1,732,846.51 and such right was absolute and unconditional.

34. Plaintiff has made a demand to Goldberg for possession of such funds on multiple 

occasions.

35. Goldberg wrongfully and without authorization assumed control, dominion, or 

ownership over Plaintiff’s property.

36. As a result of said wrongful conduct by Goldberg, Plaintiff has been damaged in an 

amount not less than $1,732,846.51. 

WHEREFORE, Plaintiff seeks judgment against the Law Offices of Goldberg & 

Goldberg in an amount not less than $1,732,846.51, plus prejudgment interest and post judgment 

interest and reasonable attorney’s fees and costs incurred in the pursuit of such judgment.

Respectfully submitted, 

By: /s/ Bradley M. Arnold 

Bradley M. Arnold

KOLB CLARE & ARNOLD PSC

1110 W. Lake Cook Road, #150

Buffalo Grove, IL 60089

(T) 630-550-5228

(F) 844-557-4329

ARDC# 6255567

barnold@kcalegal.com

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