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List of Forms
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Table of Contents
-
List of Forms by Chapter - Chapter 1 — Origin, Perfection, and Attachment of Liens
- Chapter 2 — Attorney Liens
- I. [2.1] Types of Attorney Liens
-
II. Common-Law Retaining Lien - [2.2] In General
- [2.3] Requisites
- [2.4] Attorney-Client Relationship
- [2.5] Property Received Pursuant to Attorney-Client Relationship
- [2.6] Attorney Not Paid nor Security Provided
- [2.7] Ethical Considerations in Asserting Retaining Lien
- [2.8] Perfection of Lien
- [2.9] Application of Retaining Lien to Tort Actions
- [2.10] Extinguishment or Waiver of Retaining Lien
- [2.11] Effect of Client’s Bankruptcy Proceedings
- [2.12] Action To Enforce Retaining Lien
- [2.13] Jurisdiction
- [2.14] Security
- [2.15] Summary Proceeding
- [2.16] Appeal from Summary Proceeding
- [2.17] Defenses
- [2.18] Relationship to Other Liens
- III. Equitable Liens
- [2.19] In General
- Equitable Assignment
- [2.20] History and Definition
- [2.21] Relationship to Other Attorney Liens
- [2.22] Requisites
- [2.23] Perfection
- [2.24] Extinguishment of Lien
- [2.25] Relationship to Other Liens
- [2.26] Federal Tax Lien
- [2.27] Lien of Judgment Creditor
- [2.28] Action To Enforce Equitable Assignment
- [2.29] Amount of Fee and Costs
- [2.30] Defenses to Equitable Assignment
- [2.31] Appellate Procedures
- [2.32] Fund Doctrine
- Application to Tort Actions
- [2.33] Codification as to Certain Personal Injury and Wrongful-Death Actions
- [2.34] Application to Other Tort Actions
- [2.35] Ethical Considerations
- [2.36] Requisites
- [2.37] Fund Resulting from Attorney’s Services
- [2.38] Subrogee’s Nonparticipation in Creation of Fund
- [2.39] Subrogee’s Recovery Dependent on Fund
- [2.40] Perfection
- [2.41] Extinguishment or Waiver
- [2.42] Action To Enforce Fund Doctrine Claim
- [2.43] Amount of Compensation
- [2.44] Defenses
- [2.45] Appellate Procedure
- IV. Statutory Lien
- [2.46] History
- [2.47] Constitutionality
- [2.48] Statutory Construction and Interpretation
- [2.49] Requisites
- [2.50] Valid Attorney-Client Contract
- [2.51] Contingent-Fee Agreement
- [2.52] Cocounsel Arrangements and Division of Fees Among Attorneys
- [2.53] Retroactive Application of Rules of Professional Conduct
- [2.54] Five-Day Provision in Personal Injury Representation Agreement Act
- [2.55] Notice
- [2.56] Time of Service of Notice
- [2.57] Persons Entitled to Notice
- [2.58] Manner of Service of Notice
- [2.59] Perfection
- [2.60] Attachment
- [2.61] Limitations on and Extinguishment of Lien
- [2.62] Attorney’s Unprofessional Conduct
- [2.63] Payment of Judgment or Settlement
- [2.64] Secret Settlement by Client
- [2.65] Client’s Dismissal of Suit; Death of Client
- [2.66] Discharge of Attorney
- [2.67] Disbarment or Suspension of Attorney
- [2.68] Attorney’s Voluntary Withdrawal
- [2.69] Death of Attorney
- [2.70] Bankruptcy of Client
- [2.71] Insolvent Insurer
- [2.72] Circuit Court Rule
- [2.73] Action Against a Governmental Entity
- [2.74] Workers’ Compensation Act and Workers’ Occupational Diseases Act
- [2.75] Action To Enforce Statutory Lien
- [2.76] Time of Filing Petition To Enforce
- [2.77] Notice of Petition
- [2.78] Jurisdiction and Venue
- [2.79] Extraterritoriality and Conflict of Laws
- [2.80] Standing
- [2.81] Referring Attorneys
- [2.82] Nature of Hearing
- [2.83] Burden of Proof
- [2.84] Elements
- [2.85] Evidence
- Amount of Compensation
- [2.86] In General
- [2.87] Quantum Meruit
- [2.88] Recovery of Costs and Expenses
- [2.89] Parties Liable for Breach of Lien
- [2.90] Defenses
- [2.91] Appellate Procedure
- [2.92] Relationship to Other Liens
- V. Appendix
- Chapter 3 — Health Care Services Lien Act
- I. [3.1] Statute
- II. [3.5] Statutory Construction
- III. [3.6] Who May Create Liens Under the Act — Healthcare Professionals and Healthcare Providers
- IV. [3.7] Requisites
- Notice
- [3.8] Content of Notice
- [3.9] Time and Manner of Service of Notice
- [3.10] Parties Entitled to Notice
- [3.11] Perfection
- [3.12] Examining Records and Furnishing Statement
- Attachment
- [3.13] Time of Attachment
- [3.14] Property to Which Lien Attaches
- [3.15] Injured Person’s Notice of Recovery to Lien Claimant
- [3.16] Amount of Lien Claimant’s Recovery
- [3.17] Cumulative Nature of Remedy
- [3.18] Payment Directly to Lien Claimant
- V. Limitations on and Extinguishment of Lien
- [3.19] Lien Created on or After July 1, 2003
- [3.20] Licensed Healthcare Professional or Healthcare Provider
- [3.21] Failure To Furnish Statement
- [3.22] Payment to Another
- [3.23] Wrongful Death Act
- [3.24] Workers’ Compensation Act and Workers’ Occupational Diseases Act
- [3.25] Priority of Attorney Lien
- [3.26] Priority of Public Aid Lien
- [3.27] Bankruptcy of Injured Person
- [3.28] Minor Patient
- [3.29] Payment by Illinois Department of Public Aid, Medicare, or Medicaid
- [3.30] HMO/Health Insurance Contract Provisions
- [3.31] Structured Settlement
- [3.32] Fund Doctrine
- [3.33] Interest on Balance Due
- [3.34] Reasonable and Related Charges to Date of Payment of Damages to Injured Person
- [3.35] Limitations on Amount of Recovery
- [3.36] Assignment
- [3.37] Medical Expenses Not Claimed in Patient’s Suit
- VI. [3.38] Action To Enforce Lien
- Parties Liable for Breach of Lien
- [3.39] In General
- [3.40] Prompt Pay Statute — Facilitating Payments to Lienholders and Other Claimants in Settling Actions
- [3.41] Burden of Proof and Evidence
- Amount of Recovery
- [3.42] Total of All Healthcare Liens Not To Exceed 40 Percent of Recovery
- [3.43] One Class of Liens Not To Exceed One Third of Recovery
- [3.44] All Lien Claimants Share Proportionately
- [3.45] Cap on Attorney Liens in Some Circumstances
- [3.46] Other Remedies
- [3.47] Appellate Review
- [3.48] Statute of Limitations
- VII. Appendix
- Chapter 4 — Public Aid Lien (Medicaid)
- I. [4.1] Statute
- II. [4.2] Statutory Construction
- III. [4.3] Prompt Pay Statute — Facilitating Payments to Lien Holders and Other Claimants in Settling Actions
- IV. Section 11-22 Lien
- [4.4] Constitutionality
- [4.5] Requisites
- Notice of Lien
- [4.6] Contents of Notice
- [4.7] Time and Manner of Service of Notice
- [4.8] Persons Entitled to Notice
- [4.9] Perfection of Lien
- Attachment
- [4.10] Time of Attachment
- [4.11] Property to Which Lien Attaches
- Limitations on and Extinguishment of Lien
- [4.12] Recovery Limited to the Amount Attributable to Past Medical Expenses (Until October 1, 2016)
- [4.13] Structured Settlement
- [4.14] Plaintiff’s Attorneys’ Fees and Costs
- [4.15] Bankruptcy of Recipient
- [4.16] Payment
- [4.17] Minor
- [4.18] Payment for Questionable or Negligent Care
- [4.19] Priority of Attorney Lien
- [4.20] Relationship to Other Liens
- [4.21] Wrongful Death Act
- [4.22] Workers’ Compensation Act and Workers’ Occupational Diseases Act
- [4.23] Nursing Home Care Act
- [4.24] Special-Needs Trusts: Payback Trust and Pooled Trust
- [4.25] Action To Enforce §11-22 Lien
- [4.26] Burden of Proof and Time To Sue
- [4.27] Proof of Charge
- [4.28] Amount of Recovery
- [4.29] Philosophy of Adjudication
- [4.30] Factors Considered in Adjudication
- V. Section 11-22a Subrogation
- VI. Section 11-22b Recovery
- [4.36] Statute
- [4.37] Right of Recovery
- [4.38] Department’s Action To Enforce
- [4.39] Time To Commence Action
- [4.40] Effect of Department’s Action
- [4.41] Conduct of Department’s Action
- [4.42] Department’s Notice to Recipient of Action
- [4.43] Right of Recovery in Wrongful-Death Action
- [4.44] Recipient’s Action To Recover Damages
- [4.45] Recipient’s Duty To Give Notice of Action
- [4.46] Recipient’s Duty To Give Notice of Recovery
- [4.47] Consolidation of Actions
- [4.48] Amount of Department’s Recovery
- [4.49] Amount of Recovery on Judgment in Recipient’s Action
- [4.50] Amount of Recovery on Judgment in Joint Action
- [4.51] Additional Relief Before Satisfaction of Judgment
- [4.52] Relief When Lien Perfected
- [4.53] Amount of Recovery from Settlement
- [4.54] Reasonableness of Amount of Benefits
- [4.55] Burden of Proof
- [4.56] Evidence
- VII. Appendix
- Chapter 5 — Workers’ Compensation Lien
- I. [5.1] Statute
- II. [5.2] Statutory Construction
- III. [5.3] Comments
- IV. [5.4] Employer’s Remedies To Obtain Reimbursement
- [5.5] Lien Rights
- [5.6] Perfection of Lien
- Attachment of Lien
- [5.7] Time of Attachment
- [5.8] Property to Which Lien Attaches
- [5.9] Direct Action Against Tortfeasor
- [5.10] Effect of Judgment in Employer’s Action
- [5.11] Time To Sue
- [5.12] Employer’s Joinder or Intervention in Employee’s Action
- [5.13] Employer’s Joinder in Employee’s Action
- [5.14] Realignment of Employer in Employee’s Action
- [5.15] Employer’s Substitution as Plaintiff in Employee’s Action
- [5.16] Employer’s Intervention in Employee’s Action
- [5.17] Employer’s Action for Breach of Lien
- [5.18] Parties Liable for Breach of Lien
- [5.19] Accrual of Action for Breach of Lien
- [5.20] Damages for Breach of Lien
- V. Limitations on and Extinguishment of Reimbursement
- [5.21] Waiver
- [5.22] Effect of Attorney Lien
- [5.23] Employee’s Attorney’s Fee and Costs
- [5.24] Amount of Employee’s Attorney’s Fee and Costs in Tort Action When There Is Workers’ Compensation Lien
- [5.25] Employee’s Bankruptcy
- [5.26] Minor Employee
- [5.27] Payment
- [5.28] Structured Settlement
- [5.29] Unreasonable Payments by Employer
- [5.30] Extraterritoriality
- [5.31] Uninsured/Underinsured Motorist Benefits
- [5.32] Structural Work Act
- [5.33] Wrongful Death Act and Survival Statute
- [5.34] Dramshop Act
- [5.35] Public Utilities Act
- [5.36] Retirement Fund (Illinois Pension Code)
- [5.37] Court of Claims
- [5.38] Pain and Suffering
- [5.39] Loss of Consortium
- [5.40] Employer’s Wrongful Conduct
- [5.41] Employer’s Conduct Prejudicial to Employee’s Action
- [5.42] Legal Liability of Third Party
- [5.43] Assignment of Lien
- VI. [5.44] Employee’s Duties in Bringing Tort Action
- VII. [5.45] Court Order To Protect Employer
- VIII. [5.46] Amount of Employer’s Reimbursement
- IX. Manner of Reimbursement
- X. [5.52] Appendix — Text of Workers’ Compensation Lien Statute, 820 ILCS 305/5(b)
- Chapter 6 — ERISA Benefit Plan Reimbursement
- I. Statute
- II. Definitions and Terminology
- III. [6.12] Determining Plan’s Right of Reimbursement
- Is Plan an ERISA Plan?
- [6.13] In General
- [6.14] Sources of Information About Plan
- Do Plan Documents Create Any Right of Reimbursement?
- [6.15] Terms of Master Plan Document Control
- [6.16] Terms of Summary Plan Description May Control over Terms of Plan Document
- [6.17] Reimbursement Agreement May Create Right of Reimbursement
- [6.18] Participant’s Signature on Reimbursement Agreement May Be Condition Precedent to Benefit Payment
- [6.19] Plan Is Entitled to Reimbursement Without Signed Reimbursement Agreement
- [6.20] Does Reimbursement Language Apply to Participant’s Recovery?
- [6.21] Illinois Family Expense Statute and Minor’s Recovery
- [6.22] Elements or Allocation of Participant’s Settlement or Judgment
- [6.23] Uninsured and Underinsured Motorist Claims
- [6.24] Wrongful-Death and Survival Statute Recoveries
- Availability of Equitable Defenses to Plan’s Reimbursement Claim
- [6.25] Plan Language May Preclude All Equitable Defenses
- [6.26] Application of Make-Whole Rule When Not Precluded by Plan Language
- [6.27] Application of Common Fund Doctrine When Not Precluded by Plan Language
- IV. Action To Enforce Right of Reimbursement
- [6.28] Standing
- [6.29] Jurisdiction and Venue
- [6.30] Plan’s Removal of Participant’s State Tort Action to Federal Court After Recovery To Determine Right to Reimbursement
- [6.31] Plan’s Suit Against Participant in Federal Court for Equitable Relief Regarding Reimbursement Despite Participant’s Pending State Court Action
- [6.32] What Is “Appropriate Equitable Relief”?
- [6.33] State Common-Law Fraud Claims
- [6.34] Effect of Distribution of Participant’s Recovery Before Plan’s Suit
- [6.35] Plan’s Suit Against Participant in State Court for Legal Relief
- [6.36] Plan’s Intervention in Participant’s Tort Action and Settlement with Tortfeasor
- [6.37] Arbitration
- [6.38] Simultaneous Adjudication of ERISA and Non-ERISA Reimbursement and Lien Rights in State and Federal Forums
- [6.39] Statute of Limitations
- V. Parties Liable for Breach of Reimbursement Right
- VI. [6.43] Prompt Pay Statute — Facilitating Payments to Lienholders and Other Claimants in Settling Actions
- VII. Amount of Recovery by Plan
- VIII. [6.49] Participant’s Right To Receive Future Benefits After Settlement of Plan’s Reimbursement Claim
- IX. [6.50] Bibliography
- Chapter 7 — Medicare Recovery of Overpayment
- I. Statute and Regulations
- [7.1] History and Scope of Statute
- [7.2] Medicare Coverage
- [7.3] Purpose of Medicare Secondary Payer Statute
- Statutory Construction
- [7.4] Constitutionality
- Preemption of Conflicting State Statutes and Common Law
- [7.5] In General
- [7.6] Wrongful-Death Statutes
- [7.7] Construction Statute, Regulations, and Guidelines
- Statutory and Regulatory Scheme
- [7.8] Prompt Payment by Liability Insurer as Exception to Medicare Payment Obligation; Medicare Right of Reimbursement
- Time of Reimbursement
- [7.9] Medicare Secondary Payer Statute and Regulations Regarding Time of Reimbursement
- [7.10] Illinois Prompt Pay Statute — Facilitating Payments to Lienholders and Other Claimants in Settling Actions
- [7.11] Remedy for Failure To Reimburse
- II. [7.12] Notice and Reporting to Medicare
- III. [7.13] Priority of Right of Reimbursement
- IV. [7.14] Actions To Enforce or Adjudicate Reimbursement
- V. [7.21] Parties Liable for Breach of Right of Reimbursement
- VI. Amount of Reimbursement
- VII. [7.28] The SMART Act: Streamlining the Reimbursement Process
- VIII. Patient’s Liability After Reimbursement; Liability Medicare Set-Asides
- IX. [7.33] Practical Considerations in Resolving a Medicare Claim and Set-Asides
- X. [7.34] Bibliography and Resources
- XI. [7.35] Appendix — Selected Medicare Statutes and Regulations
- Chapter 8 — Miscellaneous Liens
- I. [8.1] Illinois Pension Code
- II. [8.2] Labor and Storage Lien Acts; Automotive Collision Repair Act
- III. [8.3] Federal Employees’ Compensation Act
- IV. [8.4] Federal Employees Health Benefits Act
- V. [8.5] Railroad Unemployment Insurance Act
- VI. [8.6] Longshore and Harbor Workers’ Compensation Act
- VII. [8.7] Public Employee Disability Act
- VIII. [8.8] Covering ALL KIDS Health Insurance Act
- IX. [8.9] Veterans’ Health Insurance Program Act of 2008
- X. [8.10] City of Chicago Police Officer Medical Care Reimbursement
- XI. [8.11] Federal Medical Care Recovery Act
- [8.12] Statutory Construction
- [8.13] Means of Recovery
- [8.14] Right of Subrogation
- [8.15] Intervention and Joinder
- [8.16] Authorization to Plaintiff To Prosecute
- [8.17] Government’s Direct Action
- Limitations and Defenses
- [8.18] Statutes of Limitations
- [8.19] Conditions Precedent
- [8.20] Liability in Tort
- [8.21] Workers’ Compensation
- [8.22] No-Fault Laws
- [8.23] “Third Person”
- [8.24] Uninsured Motorist Coverage
- [8.25] Injured Person’s Insurance
- [8.26] Medicare Expenses
- [8.27] Department of Veterans Affairs Expenses
- [8.28] Nonmedical Expenses
- [8.29] State Substantive Defenses
- [8.30] Plaintiff’s Settlement with Tortfeasor
- [8.31] Amount of Recovery
- [8.32] Settlement, Release, and Waiver of Government’s Claim
- [8.33] Text of Federal Medical Care Recovery Act, 42 U.S.C. §2651, et seq.
- Chapter 9 — Subrogation
Authors
- Henry B. Vess, III
Henry B. Vess, III
Henry B. Vess, III, practices as the Law Office of Henry B. Vess III, P.C. Although now a North Carolina resident, he maintains an office in Chicago and consults on and cocounsels plaintiff personal injury litigation and liens disputes in Illinois. Mr. Vess has moderated and spoken at seminars on liens and personal injury trial practice for The Chicago Bar Association, the DuPage County Bar Association, and IICLEÒ, and he has authored articles for and consulted on various publications regarding liens. He is a member of the DuPage County Bar Association, Illinois State Bar Association, Illinois Trial Lawyers Association, and the American Association for Justice. He received his B.A. cum laude from Kenyon College and his J.D. from Northwestern University School of Law.
Liens Upon Illinois Tort Actions (ARCHIVED 2014 EDITION)
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