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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 for Retaining a Lien
- [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 Health Care Services Lien Act — Healthcare Professionals and Healthcare Providers
- IV. [3.7] Requisites
- Notice of Lien
- [3.8] Content of Notice of Lien
- [3.9] Time and Manner of Service of Notice of Lien
- [3.10] Parties Entitled to Notice of Lien
- [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
- Priority of Other Liens and Rights to Reimbursement Created by Federal or State Statute
- [3.26] Medicare and Other Rights to Reimbursement Created by Federal Statute
- [3.27] Public Aid Lien
- [3.28] Right of Reimbursement of Private Insurers of Medicare or Medicaid Beneficiaries
- [3.29] Bankruptcy of Injured Person
- [3.30] Minor Patient
- [3.31] Payment by Illinois Department of Healthcare and Family Services, Medicare, or Other Government Entities
- [3.32] Health Maintenance Organization/Health Insurance Contract Provisions
- [3.33] Structured Settlement
- [3.34] Common Fund Doctrine
- [3.35] Interest on Balance Due
- [3.36] Reasonable and Related Charges Allowed to Date of Payment of Damages to Injured Person
- [3.37] Limitations on Amount of Recovery
- [3.38] Assignment
- [3.39] Medical Expenses Not Claimed in Patient’s Suit
- VI. [3.40] Action To Enforce Lien
- Parties Liable for Breach of Lien
- [3.41] In General
- [3.42] Prompt Pay Statute — Facilitating Payments to Lienholders and Other Claimants in Settling Actions
- [3.43] Burden of Proof and Evidence
- Amount of Recovery
- [3.44] Total of All Healthcare Liens Not To Exceed 40 Percent of Recovery
- [3.45] No One Category of Liens To Exceed One Third of Recovery
- [3.46] All Lien Claimants Within the Same Category Share Proportionately
- [3.47] Cap on Attorney Liens in Some Circumstances
- [3.48] Other Remedies
- [3.49] Appellate Review
- [3.50] 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
- [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
- 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 Attorneys’ Fees and Costs
- [5.24] Amount of Employee’s Attorneys’ Fees 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
- Chapter 6 — Employee Retirement Income Security Act 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 Not 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 Save Medicaid Access and Resources Together Act: Streamlining the Reimbursement Process
- VIII. Patient’s Liability After Reimbursement; Liability Medicare Set-Asides
- IX. [7.34] Practical Considerations in Resolving a Medicare Claim and Set-Asides
- X. [7.35] Bibliography and Resources
- 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] Authorizing the 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
- Chapter 9 — Subrogation
- Mark D. DeBofsky
Mark D. DeBofsky
Mark D. DeBofsky is a Partner at DeBofsky Law, Ltd., in Chicago, where he focuses his practice on employee benefit (ERISA) claims and litigation. He is an adjunct professor at University of Illinois Chicago School of Law (2000 – present) and a member of the American and Illinois State Bar Associations. DeBofsky earned his B.A. from the University of Michigan and his J.D. from the University of Illinois College of Law.
- Ehsan Eftekhari
Ehsan Eftekhari
Ehsan Eftekhari is the Founder of Eftekhari Law Offices, LLC, in Des Plaines. His practice focuses on litigating cases in the areas of personal injury, workers’ compensation, and medical malpractice. He is a member of the Illinois Trial Lawyers’ Association and the American Bar Association and has been recognized as a Super Lawyer. He received his BS from Loyola University, his MA from the Illinois Institute of Technology, and his JD from the Chicago-Kent College of Law.
- Cynthia S. Kisser
Cynthia S. Kisser
Cynthia S. Kisser is an associate with Lawrence H. Hyman & Associates, in Chicago, where she focuses her practice on personal injury law. She is a member of the Illinois Trial Lawyers Association and was a mentor in the Illinois Supreme Court Lawyer-to-Lawyer Mentoring Program (2016 – 2017). Ms. Kisser earned her B.A. from Mary Washington College of the University of Virginia, her M.A. from Bowling Green State University, and her J.D. from Chicago-Kent College of Law, Illinois Institute of Technology.
- Brian LaCien
Brian LaCien
Brian LaCien is a Founding Partner at Smith LaCien LLP in Chicago, where he concentrates in personal injury, medical malpractice, and product liability. He is a member of the Illinois State Bar Association (Past Chair of its Tort Law Section) and the American Association of Justice, for which he has held leadership positions in several sections. Mr. LaCien has been recognized as an Illinois Super Lawyer since 2011. He earned his BA from the University of Iowa and his JD magna cum laude from the DePaul University College of Law, where he was a member of the Order of the Coif and a staff writer for the Journal of Art and Entertainment Law.
- Leslie J. Rosen
Leslie J. Rosen
Leslie J. Rosen is Principal at Leslie J. Rosen Attorney at Law, P.C., in Chicago, where she focuses her practice on civil appeals, litigation support, and guardianship matters. She is a member of the Chicago Bar Association, serving on the Judicial Evaluation (15+ years) and Amicus Curiae Committees. Ms. Rosen is also a member of the Illinois Appellate Lawyers Association and serves on its Amicus Curiae Committee. She earned her B.A. from the University of Illinois, her M.Ed. from Boston University, and her J.D. from Northeastern University School of Law.
- Michael J. Schostok
Michael J. Schostok
Michael J. Schostok is an associate at Salvi, Schostok & Pritchard P.C. in Chicago, where he focuses his practice on personal injury and medical malpractice law. He is a member of the Illinois Trial Lawyers Association, the Illinois State Bar Association, the Illinois Trial Lawyers Association, and the Michael Matters Foundation. Schostok earned his BA from the University of Wisconsin–Madison and his JD from Chicago-Kent College of Law.
- Linda M. Strohschein
Linda M. Strohschein
Linda M. Strohschein is the Principal of Strohschein Law Group, LLC, a boutique estate planning and elder law firm in St. Charles. She concentrates her practice on estate and long-term care planning, guardianship, estate and trust administration, and probate litigation. Ms. Strohschein is certified as an elder law attorney (CELA) by the National Elder Law Foundation. Although CELA is not required by the State of Illinois, this title is earned through a multifaceted process and the attorney must successfully pass a comprehensive certification exam to demonstrate an in-depth knowledge of elder law. She is a frequent speaker on a variety of estate planning and disability topics. Ms. Strohschein is a current member of the Kane County Bar Association. In addition, she is also a member of the National Academy of Elder Law Attorneys and serves as the Treasurer of the Executive Board for the Illinois chapter. Ms. Strohschein received her B.A. from George Mason University and her J.D. from The John Marshall Law School.
Liens upon Illinois Tort Actions (ARCHIVED 2019 EDITION)
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