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Recent Appellate Court Decisions
In Burhmester v. Steve Spiess Construction, Inc., 140794 (3rd Dist. 2016), the plaintiff was injured while working for third-party defendant Keefe. Defendant Spiess was the general contractor. Plaintiff filed a workers’ compensation claim against Keefe and a negligence action against Spiess. Spiess filed a third-party claim for contribution against Keefe.
After trial a jury awarded a verdict against Spiess and in favor of the plaintiff in the amount of $534,608.82. Spiess then proceeded to trial seeking contribution against Keefe. The trial court held that the Kotecki waiver automatically applies in contribution claims and that the third-party defendant’s claim under Kotecki did not need to be raised as an affirmative defense or proved at trial. The trial court entered a contribution judgment in favor of Spiess and against Keefe in the amount of $374,720.58.
Keefe then filed a post-trial motion waiving its workers compensation lien and dismissing Spiess’ contribution action against it. Keefe’s motion to dismiss was granted by the trial court and the judgment against Keefe was vacated. The trial court calculated Keefe’s workers compensation lien and entered an order granting Spiess a set off of $95,487.23.
The trial court’s decision was affirmed by the Third District Appellate Court. Kotecki is not an affirmative defense that needs to be proved at trial. The appellate court followed prior Illinois Supreme Court decisions which held that an employer may avoid liability for contribution to other tortfeasors by waiving its Section 5(b) lien. The employer can waive its workers compensation lien under Kotecki before or after verdict.
The appellate court agreed that the affidavit from the claims adjuster was sufficient to establish the amount of the workers compensation lien. The affidavit included documentary evidence including a settlement contract and a payout screen which showed the amounts paid in compensation and medical benefits.
Editor’s Note: Under Kotecki v. Cyclops Welding, 146 Ill. 2d 155 (1991) an employer can dismiss a contribution action against it by waiving its workers compensation lien. The Kotecki waiver can be asserted before or after the contribution claim decision. The Kotecki waiver arises by operation of law and is not an affirmative defense that needs to be pled at trial.