Kelleher v. Hood

• Decision Date: 15 December 1992
• Docket Number: No. 2-92-0214,2-92-0214
• Citation: 238 Ill.App.3d 842,179 Ill.Dec. 4,605 N.E.2d 1018
• Parties: , 179 Ill.Dec. 4 Robert E. KELLEHER, a Minor, by his Father and Next Friend, Robert D. Kelleher, Plaintiff and Petitioner-Appellee, v. Jason HOOD et al., Defendants-Appellees (Health Care Service Corporation, d/b/a Blue Cross Blue Shield of Illinois, Respondent in Lien Adjudication-Appellant).
• Court: United States Appellate Court of Illinois

Page 1018

605 N.E.2d 1018

238 Ill.App.3d 842, 179 Ill.Dec. 4

Robert E. KELLEHER, a Minor, by his Father and Next Friend Robert D. Kelleher, Plaintiff and Petitioner-Appellee, v. Jason HOOD et al., Defendants-Appellees (Health Care Service Corporation, d/b/a Blue Cross Blue Shield of Illinois, Respondent in Lien Adjudication-Appellant).

No. 2-92-0214.

Appellate Court of Illinois Second District.

Dec. 15, 1992.

[238 Ill.App.3d 844] [179 Ill.Dec. 6] Jeffrey B. Levens, Augustine Kern & Levens Ltd., Chicago, for Health Care Service Corp.

James E. Ocasek, Cooney & Conway, David J. Fitzpatrick, Matayas & Norris, Chicago.

Justice UNVERZAGT delivered the opinion of the court:

Respondent, Health Care Service Corporation (HCSC), appeals from the denial of its lien on a minor's estate. Respondent contends that the circuit court of Du Page County erred in applying the law, and that the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1001 et seq. (1988)) preempts Illinois case law.

Petitioner, Robert D. Kelleher, father and next friend of his minor son, Robert E. Kelleher (Bobby), has filed an amended motion to dismiss the appeal on the ground that the appeal was not timely filed. We first consider this preliminary question.

The following facts are relevant to our disposition of petitioner's motion to dismiss the appeal. On November 6, 1991, the trial court granted petitioner's motion to dismiss respondent's lien seeking reimbursement for paid medical expenses from Bobby's settlement with other parties in the suit. After granting petitioner's motion, the court set a hearing for an order of distribution on November 13, 1991, and said with reference to respondent's counsel:

"Send him [HCSC counsel] a copy of the proposed order with respect to distribution, and you can take a look at that. And at that time I imagine there is going to be an order of dismissal entered too, and it will be for presentation of vouchers. And so we will have a final order at that time if you want to pursue it to the next level."

The trial court did not make a finding of enforceability or appealability with respect to its November 6, 1991, ruling.

On November 13, 1991, the trial court entered a final distribution order. At the same time, the court made a finding of enforceability and appealability.

On December 11, 1991, respondent filed a motion to reconsider ruling in the trial court. Petitioner answered by filing a motion to strike, arguing the November 6, 1991, order was final and appealable pursuant to Rule 304(b)(1) of the supreme court rules (134 Ill.2d R. 304(b)(1)), and that respondent's motion had therefore been filed beyond the 30-day time limitation for filing post-trial motions or appeals.

On January 28, 1992, the trial court denied petitioner's motion to strike and ruled respondent's motion to reconsider had been timely filed. The trial court stated:

"Well, the motion to strike is denied. I think [HCSC] counsel's argument is persuasive. In the final order [of November 6, 1991] there was no 304(a) language granted, and it really wasn't even a dismissal of the claim or a party. Counsel I guess could have argued for a 308 finding that there is a question of law. No findings were given, and the final order was entered a week later. And I think his motion to reconsider is timely brought."

Petitioner's motion now before this court raises the same issue as to whether respondent timely filed. Petitioner contends that his motion should be granted and respondent's appeal should be dismissed because the appeal is not timely. Petitioner argues that the trial court made a final determination of respondent's status as a lienholder on November 6, 1991. Petitioner cites Supreme Court Rule 304(b)(1) (134 Ill.2d R. 304(b)(1)) to support his position. Petitioner argues that Rule 304(b)(1) made it mandatory that respondent appeal or file its motion for reconsideration within 30 days of the trial court's November 6, 1991, ruling. Petitioner concludes that respondent's trial court motion to reconsider filed December 11, 1991, was not timely.

Respondent contends its December 11, 1991, motion to reconsider was timely filed and therefore its appeal is timely. Respondent Supreme Court Rule 304 reads in pertinent part as follows:

[179 Ill.Dec. 7] argues that the trial court order of November 6, 1991, was not a final and appealable order. Respondent maintains that Supreme Court Rule 304(a) ( 134 Ill.2d R. 304(a)) controlled the matter, and not Rule 304(b)(1). Respondent reads Rule 304(a) to allow respondent to await a final and appealable order (which it argues was made November 13, 1991) before it was required to appeal or file post-trial motions.

"(a) Judgments as to Fewer Than All Parties or Claims--Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.

(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this Rule:

(1) A judgment or order entered in the administration of an estate, guardianship, or other similar proceeding which finally determines a right or status of a party." 134 Ill.2d R. 304.

Here, Rule 304(a) has general applicability because the trial court order of November 6, 1991, applied to fewer than all of the claims or parties in a multiple party action. Because the trial court made no express written finding of enforceability and appealability pursuant to its order, respondent could not appeal the order under Rule 304(a). Arachnid, Inc. v. Beall (1991), 210 Ill.App.3d 1096, 1102, 155 Ill.Dec. 662, 569 N.E.2d 1273.

Rule 304(b)(1) does not require petitioner to appeal the trial court order of November 6, 1991. The order was not final with respect to respondent's claim because the order contemplated future action. In re Estate of Robertson (1986), 144 Ill.App.3d 701, 712, 98 Ill.Dec. 440, 494 N.E.2d 562.

Furthermore, it would not serve the purpose of Rule 304(b)(1) to make an appeal of the November 6, 1991, order mandatory in this case. One of the central reasons for making appeals mandatory under Rule 304(b)(1) is to insure the certainty of some issues during lengthy procedures such as estate administration. (People ex rel. A.M. v. Herlinda M. (1991), 221 Ill.App.3d 957, 963-64, 164 Ill.Dec. 482, 583 N.E.2d 36.) Here, there is no need for such safeguards because on November 6, 1991, the trial court clearly indicated it intended to make a final appealable order on the matter in question on November 13, 1991, one week after the order in question.

For the above reasons, we deny petitioners' motion to dismiss this appeal. We now move on to consider the issues raised on appeal by respondent.

DENIAL OF LIEN AGAINST MINOR'S ESTATE

Respondent appeals from a circuit court order denying its reimbursement lien against funds received by the estate of Bobby Kelleher, a minor, as a result of Bobby's settlement with responsible tort-feasors.

On February 2, 1990, petitioner's son, Bobby, a minor at the time, was the rear-seat passenger in a car driven by Jason Hood. The car collided with another car driven by Sylvia S. Winiecki. In the collision, Bobby was injured. He received Respondent, d/b/a Blue Cross and Blue Shield, administers a group health and welfare plan (the Plan). The Plan paid a total of $6,332 for approximately 80% of Bobby's medical expenses. The Plan has been organized under ERISA.

[179 Ill.Dec. 8] emergency and follow-up medical care for his injuries.

The Plan has a reimbursement provision which provides as follows:

"If you or one of your covered dependents are injured by the act or omission of another person and benefits are provided for Covered Services described in this Certificate, you agree:

(a) to immediately reimburse Blue Cross and Blue Shield for any payments received, whether by action at law, settlement or otherwise, to the extent that Blue Cross and Blue Shield has provided benefits to you or your covered dependents; and

(b) that Blue Cross and Blue Shield will have a lien to the extent of benefits provided. Such lien may be filed with the person whose act caused the injury, the person's agent or a court having jurisdiction in the matter."

On August 15, 1990, petitioner, as Bobby's father and next friend, sued the drivers of the two vehicles involved in the collision as well as Leonard Stateczny, the owner of the car driven by Hood. The complaint alleged the suffering of economic loss as a result of the collision, in part because medical bills were incurred. The parties to the suit reached a settlement which the court approved on September 3, 1991. The settlement was for $37,500. The court ordered the net amount of the settlement after court-approved fees, $27,538.55, placed in a bank account for Bobby.

Before the settlement was approved, respondent claimed a lien on the settlement citing the reimbursement provision of the Plan. On August 19, 1991, petitioner filed a motion to adjudicate...