source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 58601.
    MICHAEL P. LANE, Director of Corrections, Plaintiff, v. ROBERT L. SKLODOWSKI, Judge, et al., Defendants.

      Announced July 12 and July 15, 1983.

    Opinion filed August 29, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Michael J. Hayes and James R. Carroll, Assistant Attorneys General, of Chicago, of counsel), for plaintiff.
    Richard M. Daley, State’s Attorney, of Chicago (Richard A. Devine, Michael E. Shabat, Joan S. Cherry, Myra J. Brown, and Glenn Sechen, Assistant State’s Attorneys, of counsel), for defendant Judge Robert L. Sklodowski.
    John A. Barra, State’s Attorney, of Peoria (Chris L. Fredericksen, Assistant State’s Attorney, of counsel), for defendant Judge Robert E. Manning, Jr.
    Edward F. Petka, State’s Attorney, of Joliet (Steven J. Prodehl, Assistant State’s Attorney, of counsel), for defendant Circuit Court of Will County.
    Daniel D. Doyle, State’s Attorney, of Rockford, for defendant Judge Harris H. Agnew.
    Robert W. Gettleman and Arthur Don, of D’Ancona & Pflaum, and Ruthanne DeWolfe, all of Chicago, for amicus curiae John Howard Association.
   JUSTICE SIMON

delivered the opinion of the court:

Our primary responsibility in this original action is to determine the scope of the authority granted to the Director of the Department of Corrections under a statute which provides for the early release of prisoners on account of good conduct. This opinion explains the basis for orders previously entered in this case on July 12, 1983, and July 15,1983.

In this action the Director, Michael P. Lane, sought the issuance of writs of mandamus and prohibition or a supervisory order directing the respondents, judges of the circuit courts of Cook, Peoria, Sangamon, Will and Winnebago counties, to dismiss numerous proceedings which had been initiated against him by several State’s Attorneys. The petition for leave to file this action was filed a day after a judge of the Cook County circuit court issued a body attachment for the Director’s arrest, threatened to imprison him if he did not appear in person before the judge the next morning, and directed that the Attorney General was not to represent the Director in that proceeding. On the same day the petition was filed, we granted leave to file the action and issued a stay of all the circuit court proceedings. The respondents are represented before this court by the State’s Attorneys who brought the initial proceedings in the circuit courts.

The proceedings in Cook and Peoria counties sought a rule to show cause why the Director should not be held in contempt, while the actions in Sangamon, Will and Winnebago counties sought a declaratory judgment and an injunction. All of the actions, however, required the circuit courts to determine the scope of the Director’s authority to award meritorious good time under section 3 — 6—3(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(a)(3)), which provides:

“Sec. 3 — 6—3. Rules and Regulations for Early Release. (a)(1) The Department of Corrections shall prescribe rules and regulations for the early release on account of good conduct of persons committed to the Department which shall be subject to review by the Prisoner Review Board.
(2) Such rules and regulations shall provide that the prisoner shall receive one day of good conduct credit for each day of service in prison for all classes of felonies other than where a sentence of ‘natural life’ has been imposed. Each day of good conduct credit shall reduce by one day the inmate’s period of incarceration set by the court.
(3) Such rules and regulations shall also provide that the Director may award up to 90 days additional good conduct credit for meritorious service in specific instances as the Director deems proper.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6—3(a).)

Under this section there are two sources of good conduct credits which can lead to the early release of a prisoner: (1) the one-day credit for one day served provided for in subsection (2), and (2) the 90-day credit for meritorious service provided for in subsection (3).

The Director and the State’s Attorneys disagree on the interpretation to be placed on the 90-day limitation in subsection (3). The Director contends that it applies only to the amount of credit for meritorious service that he can award a prisoner at any one time while the State’s Attorneys contend that it prevents the Director from granting more than an accumulative total of 90 days’ credit for meritorious service to an individual prisoner over the period of his incarceration. The Director incorporated his interpretation of the statute into the Administrative Regulations of the Department of Corrections (see Admin. Regs. Dept. Corr. sec. 864(II)(E)), and made it a regular practice of the Department to grant individual prisoners more than one award of 90 days. The State’s Attorneys observe that prisoners have received as many as 313 days’ credit for meritorious service.

After hearing oral arguments in this case on July 12, 1983, we entered the following order:

“The Court holds, contrary to the Director’s contention, that the statute in question (111. Rev. Stat. 1981, ch. 38, par. 1003 — 6—3(a)(3)) confers authority on the Director to grant no more than a total of 90 days additional good conduct credit for meritorious service; therefore, the writ is denied.
IT IS FURTHER ORDERED that all pending proceedings in this case are stayed until further order of this Court.
A written opinion will follow.”

We clarified this order on July 15, 1983, by the following additional order:

“This matter coming on to be heard, on the motion of the petitioner-plaintiff,. Michael P. Lane, for clarification of and a stay of the Court’s order in this cause of July 12, 1983, and the court being fully advised;
IT IS HEREBY ORDERED that, (1) The effect of this Court’s order of July 12, 1983, shall not extend to or apply to any awards of additional good conduct credit made by the petitioner-plaintiff, Michael P. Lane, prior to July 13, 1983; (2) Considering that the adequacy of prison facilities and personnel and related matters, referred to in the petition and motion, are essentially matters within the province of the General Assembly, the motion to stay the effect of this Court’s order of July 12, 1983, is denied.”

“It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. In so doing, courts look first to the terms of the statute.” People v. Robinson (1982), 89 Ill. 2d 469, 475; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139.

In this case the relevant portion of the statute provides that “the Director may award up to 90 days additional good conduct credit for meritorious service in specific instances ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(a)(3).) The Director argues that the use of the plural “instances” shows that the legislature intended to permit multiple awards of up to 90 days each. The use of the plural does indicate that the statute permits multiple awards, but that does not mean that the interpretation the Director places upon the statute is correct. The proper interpretation of the statutory language is that the Director may make multiple awards of less than 90 days each provided that the total number of days awarded to any one prisoner does not exceed a total of 90 days. A consideration of section 3—6—3(a)(3) in the light of the purpose and structure of the 1977 act that added it to the Unified Code of Corrections (Pub. Act 80—1099, 1977 Ill. Laws 3264, 3289) persuades us that this interpretation is the correct one.

The 1977 act created a determinate sentencing structure in Illinois by establishing minimum and maximum terms of imprisonment for all felonies (see Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1) and by circumscribing the discretion of any official to grant prisoners early release. For example, the Act abolished the Parole and Pardon Board, which previously had possessed broad powers to establish a prisoner’s date of release (see Ill. Rev. Stat. 1977, ch. 38, pars. 1003—3—(a)(1), 1003—3—3), and replaced it with a Prisoner Review Board with only limited authority; not relevant here, to determine the time of release. (See Ill. Rev. Stat. 1981, ch. 38, pars. 1003 — 3—2(aX3), (4).) Under the new determinate-sentencing system, the time of early release is fixed by operation of law. Each prisoner serving less than a life sentence is entitled to mandatory supervised release after serving “the full term of a determinate sentence less time credit for good behavior.” Ill. Rev. Stat. 1981, ch. 38, par. 1003—3—3(c).

In the 1977 act the legislature also carefully circumscribed the Director’s authority to grant, revoke and restore good-conduct credits. Whereas the former provisions of the Unified Code of Corrections granted the Director broad discretion in formulating the rules and regulations for the diminution of sentences on account of good conduct or meritorious service (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—3(a)), section 3— 6—3(a)(2), quoted above, now provides that a prisoner earns automatically one day of good conduct credit for each day served in prison (Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(a)(2)), and section 3—6—3(a)(3), which is the subject of this action, now provides that the Director may only award “up to 90 days additional good conduct credit for meritorious service in specific instances.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(a)(3).) Likewise, prior law granted the Director broad discretion in revoking good-conduct credits as a penalty for prison rule infractions (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—3(c)), but section 3—6—3(c) now provides that prisoners may not be penalized more than one year for any one infraction and that revocation by the Director of more than 30 days of credits in any one year requires review by the Prisoner Review Board (Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(c)(2)). If the Director decides to restore more than 30 days of credits previously revoked the same section also provides for review of that decision by the Board. Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(c)(3).

To establish the system of determinate sentencing in the 1977 act the legislature carefully circumscribed the authority of every public official charged with making any decision affecting the time of a prisoner’s release. After the sentencing judge fixes the term of imprisonment the length of time that a prisoner will serve is determined, with limited exceptions, by operation of law. When considered in this context, it is inconceivable that the legislature could have intended in enacting section 3 — 6—3(aX3) to grant the Director the unreviewable and unlimited authority to award any number of days of credit for meritorious service he saw fit. As noted above, when the legislature gave the Director the power to revoke or restore more than 30 days of credits it required a review of his decision by the Board. We believe that the legislature’s failure to provide any review for the Director’s decisions on the grant of credits for meritorious service persuasively establishes that section 3— 6 — 3(aX3) gives him the authority to grant each prisoner credit from time to time for meritorious service, but the total of such credits is not unlimited, for it is not permitted to exceed a ceiling of 90 days.

Amicus curiae, John Howard Association, argues in its brief that, unless this court holds that the Director has unlimited authority to grant early release to prisoners beyond a total of 90 days per incarceration, dangerous and unconstitutional overcrowding of Illinois prisons will occur. The Director made similar arguments in a motion to stay our order of July 12, but as we stated in our order of July 15, 1983, quoted above, these are principally concerns for the General Assembly. To the extent that Illinois prisons become so overcrowded that they violate the eighth amendment’s prohibition against the infliction of cruel and unusual punishment (U.S. Const., amend. VIII), such concerns may, of course, become a matter for the judiciary. (See, e.g., Madyun v. Thompson (7th Cir. 1981), 657 F.2d 868, 875; Ruiz v. Estelle (5th Cir. 1982), 679 F.2d 1115, 1142, modified on other grounds (5th Cir. 1982), 688 F.2d 266, cert. denied (1983), 460 U.S. __, 75 L. Ed. 2d 795, 103 S. Ct. 1438; Lareau v. Mamon (2d Cir. 1981), 651 F.2d 96, 105-09; Campbell v. Cauthron (8th Cir. 1980), 623 F.2d 503, 505-07.) In this action, however, our only responsibility is to construe the legislature’s intention when it enacted section 3—6—3(a)(3).

In our order dated July 15, 1983, we denied the Director’s motion for a stay of our order of July 12 and clarified the application of that order by observing that it “shall not extend to or apply to any awards of additional good conduct credit made by the [Director] prior to July 13, 1983; ***.” “It is within our inherent power as the highest court of this State to give a decision prospective or retrospective application,” depending upon what fairness and justice require. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 28, cert. denied (1960), 362 U.S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955.) In this case, prospective application of our interpretation of section 3—6—3(a)(3) is advisable because of the legitimate reliance interests that prisoners possess in their accumulated credits for meritorious service. Under the determinate sentencing system, each time the Director grants a prisoner credits for meritorious service the prisoner can reasonably assume that, barring any misconduct, he will be released from prison that many days earlier. Prisoners may have performed acts or completed courses of study in reliance on the Director’s interpretation of section 3—6—3(a)(3). Fundamental fairness and the importance of prison security support our prior holding that the interpretation of section 3—63(a)(3) that we announced on July 12 only be applied prospectively. Cf Memorandum from Acting Director of Corrections Michael P. Lane to All Wardens (Mar. 31, 1981) quoted in Jacobs, Sentencing by Prison Personnel: Good Time, 30 U.C.L.A. L. Rev. 217, 267 n.195 (1982) (“Specifically in the area of our attempts to establish control and discipline, the revocation of good time is considered to be an extremely serious consequence which should be applied to inmate discipline cases only after all other less drastic disciplinary procedures have been attempted. *** It is one of the most serious negative consequences that can be directed to an inmate’s behavior, and should be reserved for serious violations of institutional rules”).

We hold that the Director may grant no more than a total of 90 days’ credit for meritorious service to each prisoner, which credits can be granted from time to time, provided their total does not add up to more than 90 days. However, credits that the Director awarded prior to July 13,1983, are to be honored.

A brief comment on the contempt proceedings brought against the Director in the circuit courts of Cook and Peoria counties is in order. We assume that the State’s Attorneys brought those actions in order to challenge the validity of the Director’s erroneous interpretation of section 3—6—3(a)(3) and not to punish him for it. To this extent, civil contempt proceedings can have no further purpose; this court has determined the proper construction of the statute, and the Director has indicated to us that he will act in accordance with our conclusion.

If the State’s Attorneys sought to punish the Director for violation of the orders of circuit courts sentencing certain criminal defendants, we believe that the proceedings should be dismissed. “Punishment for contempt has been described as a drastic remedy and *** it is required that the mandate of the court must be clear before disobedience can subject a person to punishment.” (People v. Wilcox (1955), 5 Ill. 2d 222, 228; In re Marriage of Miller (1982), 108 Ill. App. 3d 63, 67.) In this case the circuit court orders sentenced the defendants to imprisonment for a stated number of years and remanded them to the custody of the Department of Corrections; they said nothing about the Director’s authority to grant credits for meritorious service. It is true that the Director erroneously granted more than 90 days’ credits for meritorious service to the prisoners involved in the cases before us, but he did so pursuant to departmental regulations which were not contrary to the specific language of any court order. Under these circumstances, the orders sentencing the criminal defendants cannot provide a basis in this case for subjecting the Director to criminal contempt proceedings.

As we indicated in our July 12, 1983, order, the Director’s petition for writs of mandamus and prohibition is denied. All stays entered in the circuit court proceedings involved in this action are vacated. In the exercise of our supervisory authority we order the circuit courts of Cook and Peoria counties to dismiss the contempt proceedings against the Director which are involved in this action. We also order that the circuit courts of Sangamon, Will and Winnebago counties enter judgment against the Director in the declaratory judgment actions pending in those counties in accordance with the views expressed herein. However, we do not believe it is necessary to enter an injunction against the Director at this time. He has informed the court that he will apply the statute in question in accordance with the construction we have given it in this action, and we believe that he will not act in any way which is inconsistent with the declaratory judgment.

Writs denied; supervisory orders entered.


text:
    (No. 56490.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARGARET ANN KINION (Braud, Warner, Neppl & Westensee, Ltd., Appellee).

      Opinion filed September 23, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and James T. Teros, State’s Attorney, of Rock Island, and L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Walter D. Braud and John Malvik, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The defendant in this case, Margaret Ann Kinion, was convicted in the circuit court of Rock Island County of 63 counts of theft. This appeal concerns the propriety of an award of attorney fees and expert witness fees to Walter Braud, a lawyer who had originally been retained by defendant to represent her for a stated compensation but was later appointed by the circuit court to represent her after she was declared indigent.

Shortly after the indictment in this case was filed in November 1979, Mrs. Kinion retained Braud to defend her, agreeing to pay Braud a fee of $20,000 and giving him a second mortgage on her house to secure the debt. At the time this agreement was entered into Mrs. Kinion was employed by Rock Island County as an accountant at an annual salary in excess of $20,000, but she was suspended from that job upon her arrest and from that time on she received neither salary nor unemployment benefits. Subsequently Mrs. Kinion deeded her entire interest in her house to respondent.

At some point prior to May 1980 Braud decided to raise the issues of insanity and fitness to stand trial on defendant’s behalf and engaged the services of Drs. Paul Hauck, Bruce Danto and Lawrence Freedman as expert witnesses. (A fourth expert witness, Dr. Joseph Maciejko, was engaged later and billed Braud only for court appearances in September and November 1980. A fifth expert, Dr. Paul Skinner, also billed Braud.) On May 30, 1980, Mrs. Kinion filed a petition for payment of psychiatric expenses, stating that she could not pay them herself as she had no funds or income. On June 12, 1980, she filed a motion in which she asserted she would be unable to pay the costs of her defense, including attorney fees, and requested the court to declare her indigent. She also moved to have her bail reduced and to have the money thus freed used to defray her expenses, with the permission of the person who had loaned her the bail money.

On June 16, 1980, a hearing was held on all of Mrs. Kinion’s motions. The motion relating to reduction of bail was denied, although the court ordered the county to pay the costs of Mrs. Kinion’s psychiatric examinations to the extent she had no assets with which to pay them. No action was taken on her indigency petition, although trial was set to begin September 8,1980.

On September 3 and 16, 1980, Mrs. Kinion filed new motions for declaration of indigency and payment of expert witness fees. A hearing was held on the indigency motion on September 19, but the court reserved its ruling. On October 16, 1980, after the bank which held the first mortgage conducted a foreclosure sale of her house, Mrs. Kinion filed another motion for declaration of indigency, followed by an affidavit of assets and liabilities. The court held a hearing on October 23, 1980, and declared her indigent as of September 3.

During September and October 1980, the court was considering a motion relating to Mrs. Kinion’s fitness to stand trial. The court wished to conclude all of the proceedings in the case by December 1, 1980, because the State’s Attorney for Rock Island County, who was prosecuting the case, was to become a judge on that date, and the circuit judge felt that to allow the public defender adequate time to familiarize himself with the case and prepare a defense would make it impossible to complete the proceedings by that date. At the hearing on October 23, 1980, therefore, the court appointed Braud as counsel “for the conclusion of the proceedings in this case.”

Trial commenced on November 3, 1980, after the court determined that Mrs. Kinion was fit to stand trial. The trial lasted until December 2, 1980, on which date Mrs. Kinion was found guilty on all counts. On December 22, 1980, Braud filed a request for attorney fees and costs in the amount of $28,606.35 and expert witness fees of $10,233.80. The circuit court entered an order on May 6, 1981, awarding fees and costs of $6,500 based on an effective appointment date of September 3, 1980, and expert witness fees of $9,073 based on an accrual date of May 30, 1980. The State’s Attorney of Rock Island County appealed, contending that Braud was not properly appointed as defense counsel, and, in the alternative, that no fees for services rendered prior to the actual appointment date of October 23, 1980, could be awarded against the county and that any fees so awarded were limited by statute to $1,000 for attorney fees and $250 for expert witnesses. The appellate court affirmed the award of attorney fees and reversed the award of expert witness fees, remanding the case to the circuit court for recomputation of those fees based on an accrual date of September 3, 1980, and without regard for the statutory $250 limit. 104 Ill. App. 3d 30.

The State’s first argument to this court is that Braud is not entitled to any attorney fees because his request for appointment by the court was simply an attempt to salvage a private fee arrangement that had soured and also because Braud had misled the trial court by representing to it that he would not seek recompense from the State for his services. We agree that Braud should not receive any fees from Rock Island County, and we reverse the appellate court decision allowing fees to him.

Certain statements Braud made to the court estop him to claim any attorney fees. One of the representations here at issue is a statement, set forth in a motion dated June 12, 1980, and referred to by the State’s Attorney orally before the court four days later, that Braud “will continue to represent your defendant without cost, and that no application will be made to the State for payment of attorneys [sic] fees.” This appeared in a motion filed for the purpose of having Mrs. Kinion declared indigent. The court did not declare Mrs. Kinion indigent until four months later, the State having objected that she was not indigent because she had a substantial equity in her house and the senior mortgagee having not yet held any foreclosure sale of the house.

In arguing this motion before the court on June 16, 1980, Braud stated to the court:

“We are asking then I think, moving on to the last portion of this, that Margaret be declared indigent, *** We are not asking that the court pay for or appoint counsel. We are accepting as part of the risks in being an attorney that occasionally our clients are unable to pay for us and we are not prepared to decide between Margaret Kinion and the next client as to which of those clients are more worthy. We are not asking to leave this case, nor are we prepared to abandon Margaret at this time in her life, but we cannot do an adequate job for Margaret without the psychiatric testimony. ***”

This statement was immediately followed by a request that the court order the State to pay for the defense’s psychiatric expenses. It was preceded by a request, which the court denied, that her bond be reduced and the reduction applied toward payment of her psychiatric expenses.

Our criminal code provides that, in the event counsel other than the public defender is appointed by the court in a felony case, counsel shall be paid a “reasonable” fee in accord with a formula based on time spent and services rendered. (Ill. Rev. Stat. 1979, ch. 38, par. 113—3(c); see People v. Johnson (1981), 87 Ill. 2d 98.) No exceptions are mentioned in the statute, and we would ordinarily have no quarrel with the general statement in People ex rel. Conn v. Randolph (1966), 35 Ill. 2d 24, 29, that “the court’s *** power to appoint counsel also necessarily includes the power to enter an appropriate order ensuring that counsel do not süffer an intolerable sacrifice and burden and that the indigent defendants’ right to counsel is protected” and that in In re Petition for Fees (1981), 93 Ill. App. 3d 848, 853, aff'd sub nom. People v. Johnson (1981), 87 Ill. 2d 98, that “[a] reasonable fee infers at least some compensation.” However, it has been recognized that the costs which our statute permits attorneys to recover in cases which require substantial investments of time and effort can be a very significant burden on county finances. (E.g., In re Petition for Fees (1981), 93 Ill. App. 3d 848, 854 (Craven, J., specially concurring), aff'd sub nom. People v. Johnson (1981), 87 Ill. 2d 98.) For this reason circuit courts must exercise discretion in selecting appointed counsel, and should appoint the public defender whenever that course is feasible and not manifestly unfair to the defendant and would not lead to an undue delay in trial. This presupposes that the court is informed as fully as possible as to all relevant considerations, including whether private counsel is willing to volunteer his services, at the time it must act.

In this case the trial court knew in September 1980 or earlier that the State’s Attorney was an unopposed candidate for a judicial office, and would be unable to participate in the trial after December 1 of that year, when he would take the bench. As the court explained in its 1981 order awarding fees and costs, its decision on October 23, 1980, to appoint Braud rather than the public defender was based on this, in combination with its desire not to risk having to delay the trial in December to aHow a new State’s Attorney to familiarize himself with the case (which involved 63 criminal counts and 21 witnesses and, as it turned out, took more than a month to try) and its fear that the public defender, who had not as yet been asked to undertake any preparation, would, if appointed in the latter part of October 1980, be unable to prepare Mrs. Kinion’s case in time to finish the trial by the beginning of December. No action had been taken on the June indigency petition, to which the State objected that Mrs. Kinion was not indigent and as to which the court concluded that it was uncertain at that point how much equity would remain in her house after the first mortgage on it had been foreclosed and the house sold. However, the bank which held the first mortgage on Mrs. Kinion’s house had already begun foreclosure proceedings, and as Braud himself stated to the court on June 16, !‘[w]e feel we have a good fix on what its value is because we have been vigorously trying to sell that house.” In our judgment, the court, in the exercise of ordinary prudence, should have requested an early appraisal of the house and a statement of assets and liabilities for purposes of ruling on the indigency petition and deciding who to appoint as counsel had it realized that Braud would seek fees, rather than allowing so much time to elapse before resolving the question of Mrs. Kinion’s indigency that appointment of the public defender was no longer feasible. Our view of the record is that the statements made by Braud in June, although no doubt not made for that purpose, led the court to believe that it had more time to rule on the petition than it actually had and thereby induced it not to act at that time.

As Braud points out, the representations made by a party against whom an estoppel is sought must be such that reliance on them by others is foreseeable, and the party seeking the estoppel must have relied on them to its detriment. (Finley v. Finley (1980), 81 Ill. 2d 317, 330; Dill v. Widman (1952), 413 Ill. 448, 455-56.) Fraudulent intent is not required (Dill v. Widman (1952), 413 Ill. 448, 456), and there is no evidence that there was any such intent here on the part of Braud. However that may be, it was a foreseeable if not a natural interpretation of Braud’s forthright statements that if appointed in place of the public defender he would bill the county only for expert witness fees, for which the county would have been liable anyway, and that the county would bear no out-of-pocket expense by reason of his continued representation of Mrs. Kinion. The court’s failure to take steps to curtail that representation and bring in the public defender while there was still time to do so was traceable to that understanding and would not or should not have occurred otherwise. We believe that this was sufficient to call forth an equitable estoppel, and we hold that Braud was precluded from seeking attorney fees from Rock Island County.'

There is an additional reason for denying attorney fees in this case. The record reveals that although Mrs. Kinion had earlier given Braud a second mortgage on her house for the purpose of securing a $20,000 fee, Braud informed the court in his June 12 motion that Mrs. Kinion had transferred her equity in the house, which he estimated at $8,000, to him and declared orally before the court on June 16 that while he “would appreciate receiving the balance due” on the $20,000 if she should somehow come up with the money, “[we] agreed with her that we would accept the value in the house against the amount of the fees that she owed us *** [and if] we didn’t receive those fees we would take the value in the house which was substantially less than our charges and expenses would be.” We interpret this as meaning that Braud agreed not to require Mrs. Kinion to pay the difference in the event the amount of the equity fell short of $20,000 but would content himself with the equity, whatever that turned out to be, and would leave any further payment to the good graces of Mrs. Kinion.

Where a client and his attorney have an express contract for compensation, that contract will control the amount of compensation due the attorney from the client, and quantum meruit principles are not involved (Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 310; Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 710; Barnes v. Barnes (1922), 225 Ill. App. 68, 74-75), at least where the fee provided for by the contract was not excessive (see In re Kutner (1979), 78 Ill. 2d 157) or fraudulent. In this case, while Braud realized nothing from the assignment of Mrs. Kinion’s equity in her house, that was no less than he bargained for, as the possibility that the outstanding senior mortgage would absorb all the equity was not beyond contemplation in view of the difficulty Braud knew a realtor was experiencing in trying to sell the house at the time he agreed to accept the assignment in lieu of further payment. In fact, on the basis of Braud’s statement on June 16 that the equity in the house, however small, was the only source of funds Mrs. Kinion was realistically likely to have, this arrangement does not strike us as such a bad deal, even with the risk that the equity might turn out to be insubstantial. Braud was agreeing, in essence, to take his chances with the house then and there, rather than having to foreclose a mortgage at a later date and hoping, in a time of recession, that there would still be value in it.

As Mrs. Kinion would not have been required to pay her attorney further compensation, we do not understand why such a burden should fall on the county, which was not a party to the contract. The fee provisions of the statute concerning appointed counsel do not, in our judgment, require such a result, for they apply only where the terms of payment are not elsewhere provided for and have their genesis in the appointment. As an attorney has the right to withdraw from a pending case for failure to receive his fee only when the client deliberately withholds it (87 Ill. 2d R. 2—110(c)(1)(F)), Braud would have been under an obligation to continue representing Mrs. Kinion for the stated compensation and should not be permitted to succeed, by reason of an appointment, to rights his contract did not give him against parties which it did not bind.

With respect to the fees for expert witnesses, we note that the county would be responsible for paying for any such witnesses the public defender might have required, and thus is not harmed by being liable instead for such expert witness fees as are reasonable. We therefore address only the contentions advanced by the State that compensation cannot exceed $250 and cannot be had for expenses incurred before October 23,1980.

The statute concerning expert witness fees appears to make such fees available to appointed counsel only in capital cases and only up to the amount of $250 per defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 113—3(d).) However, the State has not raised any objection to the fee petition based on the language in the statute which indicates that the fees can be awarded only in capital cases, and we agree with the appellate court that the judiciary possesses a limited power to exceed the $250 limit set forth in the statute.

The courts of this State have observed on several occasions that expert witnesses such as medical doctors and psychiatrists are often essential to the defense of indigent defendants in criminal proceedings, particularly where issues are raised concerning sanity and fitness to stand trial, and that these witnesses are not expected to donate their services but must usually be offered a substantial fee as compensation for time spent in making necessary findings and diagnoses and appearing to testify. (People v. Watson (1966), 36 Ill. 2d 228, 233-34; In re Petition for Fees (1981), 93 Ill. App. 3d 848, 852, aff'd sub nom. People v. Johnson (1981), 87 Ill. 2d 98; see also People v. Glover (1971), 49 Ill. 2d 78 (expert witness’ fee recoverable only if the expert’s testimony is necessary to prove a crucial issue in the case); People v. Vines (1976), 43 Ill. App. 3d 986 (same).) In People v. Watson this court held that the trial court was required by the sixth amendment right to summon witnesses (U.S. Const., amend. VI; Ill. Const. 1870, art. II, sec. 9) to permit an indigent defendant to call a handwriting expert at county expense where he did not have an attorney and it was shown that the expert’s testimony was necessary to support the defendant’s contention that he did not forge a check. The court reasoned that since the defendant himself had no funds and a subpoena would be insufficient to compel the expert to do more than simply appear before the trial court, requiring the State to pay the witness’ fee was the only way of assuring that while “the defendant is afforded the shadow of the right to call witnesses, he is [not] deprived of the substance.” 36 Ill. 2d 228, 233.

It is no doubt true that Rock Island County, in the words of the appellate court, “already bears an onerous financial burden” (104 Ill. App. 3d 30, 37), and we realize that, with regard to attorney fees, appointed counsel traditionally bore the burden of representing indigent defendants as a duty incident to the privilege of practicing law (e.g., People v. Johnson (1981), 87 Ill. 2d 98, 102; People v. Sanders (1974), 58 Ill. 2d 196, 199). However, the trend in Hlinois and other States has been to recognize the heavy burden that such representation places on both private attorneys and counties by allowing appointed counsel reasonable attorney fees for representing indigents rather than adhering rigidly to numerical upper limits. (See People v. Johnson (1981), 87 Ill. 2d 98, 104-05, and cases cited therein; see also People ex rel. Conn v. Randolph (1966), 35 Ill. 2d 24.) In our judgment, rigid adherence to a numerical limit is even less justified with regard to expert witness fees, in view of the fact that the county would have to pay reasonable fees for any expert witness the public defender chose to engage. Limiting a private attorney to $250 for expert testimony in a case in which the public defender would have reasonably been required to spend more would result in a windfall to the county because private counsel had been appointed. Such a result seems arbitrary and unfair, and its effect would no doubt be to encourage at least some private attorneys who have already devoted time and effort to a case to refrain from calling additional experts to testify or to seek leave to withdraw should the costs of trial begin to appear high. We do not believe the legislature intended to bring this about, particularly in light of the fact that the Code of Criminal Procedure of 1963 contains parallel provisions, effective at the time the experts in question here were engaged, mandating the appointment of at least one medical expert of defendant’s choice to examine the defendant at the county’s expense and without any limit as to the amount of the expense whenever the defendant’s physical or mental fitness is at issue. Ill. Rev. Stat. 1981, ch. 38, pars. 104—13(a), 104—13(b), and especially 104—13(e).

We therefore interpret the $250 limitation set forth in section 113 — 3(d) of the Code of Criminal Procedure of 1963 not as a rigid upper boundary but as a general caution to trial courts that expert fees in excess of that amount are frequently not reasonably required to establish points necessary to a client’s defense and as a warning that any excess which is requested should be scrutinized for abuse with special care. We agree with the appellate court that the best practice, although it was not followed here, is, where feasible, to require appointed attorneys to petition the trial court for any amount anticipated to be in excess of $250 before they spend it, and that attorneys who spend any excess which the court does not authorize should run the substantial risk of not receiving compensation for it.

There remains the question of whether Braud is entitled to expert witness fees incurred before October 23, 1980, the date he was appointed by the trial court, or before September 3, 1980, the date as of which the court declared Mrs. Kinion indigent. Ordinarily we would discourage circuit courts from awarding expert fees prior to the time the defendant is declared indigent and the appointment of counsel is made. In this case, however, even though the court concluded that “there was no showing of indigency prior to September 3, 1980,” it entered an order on June 16, 1980, which required the State to pay for Mrs. Kinion’s expert witnesses insofar as their fees could not be paid out of the proceeds from the sale of her house. As we have already concluded that the court could and should have determined the question of indigency at that time, we hold, only in this case, that fees could properly have been awarded from that date.

We therefore remand the cause to the trial court for re-computation of the amount of expert fees which Braud may recover based on an accrual date of June 16, 1980. We observe in so doing, however, that because awards of expert witness fees are intended merely to compensate counsel for reasonable expenses and should not have the effect of impoverishing either side, private counsel should as a rule be awarded no more expenses than the public defender would incur in a similar case; they should be compensated only for expenses that are reasonably necessary to secure testimony concerning a crucial issue in the case (People v. Glover (1971), 49 Ill. 2d 78), and should not be reimbursed at county expense for testimony which, though germane, is unnecessary or redundant. While we do not intimate that it was unreasonable per se for Braud to introduce four psychiatrists to testify to Mrs. Kinion’s sanity and fitness to stand trial and submit bills for a fifth witness, we have our doubts that fees in excess of $9,000, or more than 36 times the statutorily prescribed limit applicable to a single defendant, were called for in this case regardless of what accrual date is used. We trust that the circuit court will take account of this and assess fees in a reasonable amount.

We reverse both the appellate court and the circuit court. The cause is remanded to the circuit court, however, for an award of expert witness fees based on a starting date of June 16, 1980, consistent with what is said in this opinion.

Judgments reversed; came remanded, with directions.


author: JUSTICE UNDERWOOD

text:
    (No. 56959.
    MARIA T. CASTANEDA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Congress Linen Supply, Appellee).

      Opinion filed September 23, 1983.

      McCoy & Morris, of Chicago (Jeffrey M. Morris and Gilbert C. Schumm, of counsel), for appellant.
    Sweeney & Riman, Ltd., of Chicago (Richard Sawislak, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Maria T. Castaneda, sought benefits under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries sustained to her left ring finger during a physical altercation with two coworkers. The Industrial Commission reversed its arbitrator’s award, finding that claimant had failed to prove that her injuries arose out of and in the course of her employment with respondent, Congress Linen Supply. The circuit court of Cook County confirmed the Commission, and claimant now brings this direct appeal pursuant to our Rule 302(a)(2) (87 Ill. 2d R. 302(a)(2)), urging that the Commission’s decision is against the manifest weight of the evidence.

Claimant testified at the arbitration hearing, through an interpreter, that she had been employed by respondent for approximately six years on August 29, 1979. On that morning, as she was talking to a co-worker while performing her customary duties of folding aprons, a coworker, Gracelia Perez, told her to shut up. Claimant responded that she would not shut up or be quiet, at which point Gracelia slapped her in the face. Claimant then threw a package of tablecloths at Gracelia, and the two women began fighting. Shortly thereafter, Gracelia’s sister, Gloria Loera, with whom claimant had quarreled the day before, joined her sister, and together they assaulted claimant and stepped on her finger. Two mechanics intervened and broke up the fight, and claimant was later treated for a serious finger injury.

The only other relevant testimony was that of Alberto Amato Trejo, cousin to Gracelia and Gloria, who testified on behalf of respondent. Alberto testified, also through an interpreter, that it was he and claimant who exchanged words, the nature of which are not entirely clear from the record, although it appears that claimant was insulting him and commenting on his problems. After claimant apparently characterized Alberto and his family with a vulgar expression, Gracelia responded with words and a clenched fist. Claimant told Gracelia that she would not shut up, threw the tablecloths, and the fight ensued.

The Industrial Commission found that neither account of the incident would sustain a finding that claimant’s injuries arose out of and in the course of her employment. Alberto’s version established that claimant was the aggressor, which, as the Commission noted, would preclude an award of compensation. (E.g., Ford Motor Co. v. Industrial Com. (1980), 78 Ill. 2d 260, 262-63.) Similarly, the Commission found that claimant’s version established simply that her injuries arose from a purely personal dispute and did not, therefore, arise out of and in the course of her employment. (E.g., Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 24.) The Commission rejected her contention that the August 29 dispute originated the previous day with Gloria when the two had an argument concerning claimant’s time card which Gloria had apparently altered. The Commission found, however, no evidence connecting the two incidents.

Claimant argues here that there was sufficient evidence in the record from which the Commission could find that the two arguments were connected since she testified that she was talking to a co-worker on August 29 “about what had happened the day before” when Gracelia told her to shut up and assaulted her. Even if we were to assume that the August 28 argument between claimant and Gloria was work related, we must, under the circumstances here, sustain the Commission’s finding that claimant’s injuries on August 29 were the result of a purely personal dispute in view of the finding that no connection existed between those injuries and the August 28 episode.

It is claimant’s burden to establish that her injuries arose out of and in the course of her employment (Jones v. Industrial Com. (1983), 93 Ill. 2d 524, 526; Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430), and it is axiomatic that this court will not disregard or reject permissible inferences drawn by the Commission merely because other inferences might be drawn, nor will we substitute our judgment for that of the Commission unless its findings are against the manifest weight of the evidence. (Greene v. Industrial Com. (1981), 87 Ill. 2d 1, 5; Schroeter v. Industrial Com. (1976), 62 Ill. 2d 284, 287.) The fact that the injury occurs at the place of employment is not sufficient in itself to prove that the injury arose out of the employment: “An injury may be said to arise out of the employment ‘when, upon consideration of all of the circumstances, there is apparent to the rational mind a causal connection between the conditions under which the work is to be performed and the resulting injury.’ ” (Pazara v. Industrial Com. (1980), 81 Ill. 2d 76, 83, quoting Brewster Motor Co. v. Industrial Com. (1967), 36 Ill. 2d 443, 449.) Where a physical confrontation is purely personal in nature, the resulting injuries cannot be said to have arisen out of the employment. Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 24; Huddleston v. Industrial Com. (1963), 27 Ill. 2d 446, 448.

The Commission’s conclusion here that claimant’s injuries resulted from a purely personal dispute cannot be said to be against the manifest weight of the evidence. It is apparent, based upon the reasonable inferences drawn by the Commission from the record, that the physical altercation on August 29 was the result of a purely personal dispute precipitated by a verbal exchange which was completely unrelated to the employer’s work. We note, too, that no argument is made that there existed a risk of assault inherent in or incidental to the performance of claimant’s employment duties (see, e.g., Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 431; Huddleston v. Industrial Com. (1963), 27 Ill. 2d 446, 448), or that the assault was motivated by the type of ethnic differences this court deemed sufficient in Rodriguez v. Industrial Com. (1983), 95 Ill. 2d 166.

The circuit court’s judgment affirming the Commission’s decision is accordingly affirmed.

Judgment affirmed.


author: CHIEF JUSTICE RYAN

text:
    (No. 57116.
    THE DEPARTMENT OF TRANSPORTATION, Appellant, v. NEW CENTURY ENGINEERING AND DEVELOPMENT CORPORATION et al, Appellees.

      Opinion filed September 23, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Wayne R. Johnson, Thomas R. Wilson, Raymond E. Meader, Frank S. Righeimer, Jr., Leo N. Cinquino, and Jeanne T. Goshgarian, Special Assistant Attorneys General, of counsel), for appellant.
    Arnstein, Gluck & Lehr, of Chicago (John F. McClure, Arthur L. Klein, Morton M. Steinberg, and Adele Rapport, of counsel), for appellee James Talcott, Inc.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

In this condemnation proceeding, the Department of Transportation of this State, in July 1973, initiated “quick-take” proceedings (Ill. Rev. Stat. 1971, ch. 47, par. 2.1) in the circuit court of Will County to immediately acquire title to a 7.55-acre tract of land to be used for road improvements. The tract was owned by the defendant, New Century Engineering and Development Corporation. James Talcott, Inc., was joined as a defendant as a mortgagee of the property. Following a hearing, the court fixed the sum of $325,000 as preliminary just compensation. (Ill. Rev. Stat. 1971, ch. 47, par. 2.2.) Under the then requirements of section 2.3 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 2.3), the Department deposited 125% of the preliminary compensation award with the county treasurer of Will County. Following the deposit, pursuant to the provisions of section 2.3 of the Act, the court, on September 18, 1973, entered an order vesting title to the tract in the petitioner.

On the same day, the defendants filed a joint petition requesting that an order be entered authorizing defendant New Century (owner) to withdraw $137,500 of the amount deposited and Talcott (mortgagee) to withdraw $187,500. The court entered an order authorizing the withdrawals by the defendants as prayed.

The unduly long delay in having a final determination of just compensation is not explained in the record. It was not until nearly eight years later that a jury fixed the just compensation for the tract taken at $171,535. This amount was $153,465 less than the amount fixed as preliminary just compensation by the court and withdrawn by the defendants. On June 25, 1981, the Department filed a petition in the circuit court of Will County asking the court to hold the two defendants jointly and severally liable for the refund of $137,500 (the amount withdrawn by New Century) and Talcott separately liable for $15,965 (the amount by which Talcott’s withdrawal exceeded the total award of the jury). The Department also prayed for interest on the amount that the withdrawals exceeded the award. The circuit court held the defendants jointly and severally liable for the amount of $137,500; it held Talcott individually liable for $15,965, but denied the prayer for interest.

The appellate court reversed that part of the circuit court’s judgment holding New Century and Talcott jointly and severally liable for $137,500. It affirmed the several liability of Talcott for $15,965. It also affirmed the denial of interest. (106 Ill. App. 3d 1098.) We allowed the Department’s petition for leave to appeal. 87 Ill. 2d R. 315.

Since this action was commenced, the Eminent Domain Act has been incorporated in the new Code of Civil Procedure. References herein to sections of the Act will refer to the current statutory citations in the Code of Civil Procedure.

The basic contention of the Department in the trial court, and in the appellate court, was that, under the various sections of the Act, joint and several liability is imposed upon the parties who participate in the withdrawal of the money deposited for the repayment of the amount that the withdrawals exceed the final award. This is also the basic contention in this court. However, the Department now argues several issues not raised in the trial court or in the appellate court, to which we will refer later. In a sense, these issues are ancillary to the Department’s basic contention.

The relevant sections of the Code of Civil Procedure are sections 7—106, 7—109 and 7—123(b) (Ill. Rev. Stat. 1981, ch. 110, pars. 7-106, 7-109, 7-123(b)). Section 7 — 106 is captioned “Withdrawal by persons having an interest.” The relevant part of this section is as follows:

“Withdrawal by persons having an interest. At any time after the plaintiff has taken possession of the property pursuant to the order of taking, *** any party interested in the property may apply to the court for authority to withdraw for his or her own use his or her share (or any part thereof) of the amount preliminarily found by the court to be just compensation ***. After the hearing, the court may authorize the withdrawal requested, or such part thereof as is proper, but upon the condition that the party making such withdrawal shall refund to the clerk of the court, upon the entry of a proper court order, any portion of the amount so withdrawn which exceeds the amount finally ascertained in the proceeding to be just compensation *** owing to such party.” (Ill. Rev. Stat. 1981, ch. 110, par. 7—106.)

Section 7 — 109 is captioned “Refund of excess of deposit.” The relevant part of that section provides:

“Refund of excess of deposit. If the amount withdrawn from deposit by any interested party under the provision of Section 7 — 106 of this Act exceeds the amount finally adjudged to be just compensation *** due to such party, the court shall order such party to refund such excess to the clerk of the court, and if refund is not made within a reasonable time fixed by the court, shall enter judgment for such excess in favor of the plaintiff and against such party.” (Ill. Rev. Stat. 1981, ch. 110, par. 7—109.)

The appellate court construed these two sections as creating individual or several liability for the refund upon the party making the withdrawal. The court held that, under these sections, Talcott was not liable for the amount withdrawn by New Century, but was responsible for the refund of the amount by which Talcott’s withdrawal ($187,500) exceeded the final award ($171,535), which is $15,965. We find that this construction of these sections of the statute is correct. Section 7 — 106 speaks of an interested party withdrawing “his or her share” and provides that the withdrawal shall be upon the condition that the party making such withdrawal shall refund to the clerk any portion of the amount so withdrawn which exceeds the amount finally ascertained to be just compensation owing such party. Again, section 7 — 109 states that if the amount withdrawn by any interested party exceeds the amount finally adjudged to be just compensation due to such party the court shall order such party to refund such excess to the clerk. That section further provides for the entry of judgment for such excess against such party.

These sections, although recognizing that multiple parties may be interested in the award and may make -withdrawals, clearly speak in terms of individual responsibility for refunds and tie the liability for the refund to the amount by which the individual party’s withdrawal exceeds his or her share of the final award of compensation. It would be a strained construction to hold that these sections make all parties who participate in a withdrawal liable for the total amount by which the total withdrawals exceed the final amount of compensation.

The Department contends that the appellate court did not consider the provisions of section 7 — 123(b) of the Act. The relevant part of that section provides:

“(b) In case the plaintiff is in possession pursuant to an order entered under the provisions of Section 7 — 105 of this Act *** the court *** shall enter an order setting forth the amount of just compensation so finally ascertained and ordering and directing the payment of any amount thereof that may remain due to any of the interested parties, directing the return of any excess in the deposit remaining with the clerk of the court, and directing the refund of any excess amount withdrawn from the deposit by any of the interested parties, as the case may be.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 123(b).)

The Department seems to contend that the use of the term “interested parties” in the last part of the section just quoted requires that the word “party” in sections 7 — 106 and 7 — 109 be read as “parties.” However, a simple reading of the last part of section 7 — 123(b) reveals that that section also provides that the order directing the refund be only of the excess amount withdrawn by any o/the interested parties. To give this section the construction for which the Department contends, the words “any of” would have to be omitted so that the section would provide for an order directing the refund “of any excess amount withdrawn from the deposit by the interested parties.”

The language of these three sections of the Act is clearly singular and imposes several liability for refund on the party making the withdrawal only for the excess amount of his or her own withdrawal. Had the legislature intended to impose joint and several liability and make each party participating in the withdrawal responsible for the total excess withdrawal, it could have easily so provided. The language used in these sections does not so provide.

Because Thlcott is the mortgagee and ultimately foreclosed on the remaining mortgaged property, the Department’s argument has surface appeal. However, the construction urged by the Department would be applicable to all interests in property involved in a “quick-take” condemnation. It would be far from the intent of the legislature to construe these sections as requiring, for instance, that the owner of an undivided one-fifth interest in property taken reimburse the State for the excess withdrawn by the owners of the other four-fifths interest.

The Department makes several arguments based on the premise that Thlcott, by virtue of a foreclosure after the “quick-take” proceedings and before the final award, became the “owner” of the property. It is argued that Thlcott therefore took the property subject to the obligation of New Century to refund the excess withdrawn. Any argument based on the assumption that Thlcott became the owner of the property taken misconceives the nature of a “quick-take” proceeding. Section 7—105(a) (Ill. Rev. Stat. 1981, ch. 110, par. 7—105(a)) provides that, after the determination of preliminary compensation, if the plaintiff deposits with the county treasurer money in the amount of the award, the court shall enter an order vesting in the plaintiff fee simple title (or such other interest required) to the property. (The 1971 statute (Ill. Rev. Stat. 1971, ch. 47, par. 2.3) provided for the deposit of 125% of the amount found as preliminary compensation.) Thus, before any withdrawal of funds was made in this case, title to the property taken vested in the Department. Thlcott never had title to the condemned property and could not by foreclosure or otherwise acquire from New Century title to the property for which compensation was awarded. New Century was divested of ownership of the property by virtue of the court order entered prior to the withdrawal of the money deposited.

The award in a condemnation proceeding stands in the place of the land taken. Prior to the condemnation, the mortgage constituted a lien on the land taken and on the other land covered by the mortgage. Neither the mortgagor nor the mortgagee has the power to prevent the taking by the State. The property involved in the condemnation was taken from the owner, and title vested in the State free and clear of the lien of the mortgage. However, the mortgagee, although losing his mortgage lien upon the condemned property, under the law of this State, had an equitable lien upon the award for the land that was taken in the condemnation proceeding, as well as a mortgage lien upon the remainder of the land as security for his debt. By foreclosing the mortgage, the mortgagee, as the purchaser at the foreclosure sale, can acquire title to the mortgaged property not involved in a condemnation proceeding. He cannot acquire title to the land that was taken. The award stands in place of and as a substitute for the land that was taken and can be applied to satisfy the debt. If there has been a foreclosure of the mortgage on the remaining property, as in this case, to the extent that the debt has not been satisfied in the foreclosure proceeding, the award can be applied against the debt. See City of Chicago v. Salinger (1943), 384 Ill. 515.

The Department argues that the order of the trial court which authorized the withdrawal imposed a joint and several obligation upon New Century and Talcott to refund the excess amount withdrawn. The order was entered pursuant to section 7 — 106 of the statute, which has been quoted above. That section provides that the court may enter an order authorizing the withdrawal of the money deposited upon the condition that the party making the withdrawal shall refund any portion of the amount withdrawn which exceeds the amount finally determined to be owing such party. The language of the order closely follows the language of the statute. The order in this case provides for a withdrawal by New Century and a withdrawal by Thlcott and states in its last paragraph:

“[A]ll of said withdrawals to be upon the condition that said defendants shall refund to the Treasurer of Will County upon the entry of a proper court order any portion of the amount so withdrawn which shall exceed the amounts finally ascertained in the proceedings to be just compensation *** owing to defendants.” (Emphasis added.)

The Department, in its petition for leave to appeal, erroneously refers to the order as providing for a single withdrawal and even erroneously quotes the order as providing that “all of said withdrawal” is conditioned upon the obligation to refund. (Compare with the italicized language in the order above.) The order does not provide for a single withdrawal with a joint obligation to refund. The order provides for separate withdrawals by each defendant. There is nothing in the order to indicate any intention on the part of the court or the parties to impose upon the defendants obligations to refund broader than those contained in the statute. The order is acknowledged by the Department in its petition for leave to appeal to have been entered pursuant to section 7 — 106.

Thlcott argues that it is not liable for any refund, as the compensation it received was less than the amount of its mortgage interest in the subject property. In the alternative, Thlcott argues that it is only liable for the refund of $15,965, based upon the difference between the award of final just compensation of $171,535 and the amount of $187,550 that it received pursuant to the order of withdrawal. We agree with the appellate court that Thlcott is liable for the refund of $15,965. The obligation under the statute is to refund the excess of the amount withdrawn by the party over the amount finally determined as just compensation owing to that party. In this case Talcott’s interest in the just compensation finally awarded can be no more than the total amount of that award, which was $171,535. Under the statute, Talcott is therefore obligated to refund the amount that it withdrew in excess of this final award.

The Department argues that it is entitled to receive, from Talcott, interest on the excess preliminary compensation withdrawn from the date of the withdrawal. The appellate court correctly held that interest is clearly a statutory creature in this State and was not recoverable unless contracted for or authorized by statute. (See Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415; Blakeslee’s Storage Warehouses, Inc. v. City of Chicago (1938), 369 Ill. 480.) The Department cites People ex rel. Director of Finance v. YWCA (1979), 74 Ill. 2d 561, for the proposition that just compensation is not intended to improve the status of the condemnee. The YWCA case dealt with the proper measure of value to be used in determining just compensation and not with the question of interest to be paid to the condemnor. The general statement made in that case is therefore not helpful on the question of interest now under consideration.

The Department argues that the purpose of an eminent domain proceeding is to ensure that just compensation is paid for the property taken and that if interest is not payable to the State on the excess amount withdrawn, more than just compensation will have been paid. The Department cites cases from other jurisdictions in support of its position. This is obviously not the first case in which the amount of the preliminary compensation withdrawn exceeded the amount finally determined as just compensation. However, the Department cites no case from this State in which interest has been allowed to the condemnor on the excess amount withdrawn. As noted above, this court has consistently held that the right to interest must be found in the contract between the parties or in the statute. If the condemnor in a quick-take proceeding is to be allowed interest upon excess funds withdrawn, this change in the law will have to be made by the legislature and not by the courts.

The Department asserts that interest is provided for by section 7—108 of the Act (Ill. Rev. Stat. 1981, ch. 110, par. 7—108). However, that section only provides for the payment of interest by the condemnor to the interested parties in certain situations. It provides that interest shall be paid on any amount by which the finally determined just compensation exceeds the amount prehminarily found by the court in the quick-take proceeding. There is no provision in this statute for the payment by the interested parties of interest on the excess amount withdrawn. The fact that interest is provided for in one instance and not the other is an indication that the legislature did not intend that interest be paid upon the excess withdrawn.

Finally, the Department contends that it is entitled to post-judgment interest upon any excess funds withdrawn from the date of the judgment by the trial court holding Talcott separately liable for the refund of $15,965 on June 25, 1981. Although the eminent domain law does not specifically provide for interest in this situation, section 3 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 3) provided that “[[judgments recovered before any court shall draw interest *** from the date of the judgment until satisfied ***.” We therefore hold the Department is entitled to interest at the legal rate provided by statute upon the amount of $15,965 from June 25, 1981, the date of the judgment, until the date of payment.

For the above reasons, the judgments of the appellate and circuit courts, insofar as they hold Thlcott liable only for the refund of $15,965 are affirmed, and insofar as they deny the Department’s right to interest on this amount from the date of the judgment of the trial court, the judgments are reversed. That portion of the appellate court judgment reversing the circuit court’s imposition of joint and several liability is affirmed and the circuit court’s judgment in that respect is reversed. The cause is remanded to the circuit court for entry of a judgment for interest in accordance with this opinion.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded, with directions.


author: JUSTICE GOLDENHERSH

text:
    (No. 57206.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICKEY D. AGNEW, Appellant.

      Opinion filed September 23, 1983.

      Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Michael B. Weinstein and Kevin Patrick Connor, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Mickey D. Agnew, and three other persons were arrested and charged with armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2). Defendant’s case was severed from the others. At a preliminary hearing in the circuit court of Coles County before Judge Paul C. Komada, defendant’s counsel objected to Judge Komada’s hearing the matter, stating that when he was State’s Attorney the judge had prosecuted the defendant on a similar but unrelated charge. After discussion, the motion was denied. At the hearing, probable cause was found, defendant was bound over for trial, and at a jury trial, with Judge Komada presiding, defendant was found guilty and sentenced to eight years’ imprisonment. The appellate court affirmed (108 Ill. App. 3d 79), and we allowed defendant’s petition for leave to appeal (87 Ill. 2d R. 315).

It is defendant’s contention that his oral motion for mandatory substitution of judges was made at the earliest practicable moment, before the judge had ruled adversely to defendant on any substantive issue in the case, that the court waived the statutory requirement that the motion be written and, having elected to entertain the motion, erred in denying it.

Section 114—5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114—5(a)) provided:

“(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.”

The following colloquy ensued at the preliminary hearing, after Mr. Geisler (defense counsel) entered his appearance for the defendant in substitution of the public defender:

“THE COURT: Thank you, Mr. Geisler. And are you ready for preliminary hearing at this time?
MR. GEISLER: I am, Your Honor. I would object to the Court hearing the matter, Your Honor. I believe you were the State’s Attorney on a similar charge and in that capacity, be privy to some information, Your Honor, which would put the Defendant at a disadvantage.
THE COURT: Counsel, have you filed a written motion for change of judge in this cause?
MR. GEISLER: No, Your Honor. I was not aware that you were going to be the judge.
THE COURT: Well, counselor, I was not State’s Attorney at the time that this offense is alleged to have occurred, the 6th day of February of 1981.
MR. GEISLER: No, Your Honor, another matter. That is true, Your Honor. This is another matter which you were the State’s Attorney with the same Defendant. I merely point out to the Court if you don’t see any objection to it, Your Honor, of course, we can proceed.
THE COURT: .Well, it doesn’t bother me, counsel. If you wish to make a motion for change of judge, I will be glad to entertain that.
MR. GEISLER: I am only bringing it to the Court’s attention. I would like to proceed with the hearing, Your Honor.
THE COURT: It is my understanding that this particular incident has no connection with any previous case involving Mr. Agnew, is that correct?
MR. GEISLER: I don’t know, Your Honor. I don’t know what the background is.
THE COURT: Well, I am prepared to proceed, Mr. Geisler. Do you have any objection to that?
MR. GEISLER: I do, Your Honor. I haven’t got time to put it in writing, but I do have an objection to your hearing. I think, Your Honor, that it would be a conflict in your hearing. If there is not another judge available, of course. . .
THE COURT: Well, the question that’s presented to us right now is not whether or not there is another judge that is available. The question is whether your oral motion for change of judge should be granted.
MR. GEISLER: I will leave that to the Court’s discretion, Your Honor.
THE COURT: *** In the absence of any clear authority warranting a substitution of judge at this point, the motion will be overruled.”

Following the finding of probable cause, while the court and'counsel were attempting to agree on a trial date, the judge stated that he was assigned to another county during a two-week period and then made the following comment:

“Mr. Geisler by his earlier suggestion leads me to believe that there may be a motion for substitution of judge. If that occurs, perhaps some other judge could hear the case during those other two weeks.”

In affirming the judgment the appellate court held that a motion for substitution of judge under section 114 — 5(a) may be made early, but that such motion may be made only one time. (108 Ill. App. 3d 79, 81.) After reviewing and analyzing the appellate court decisions on the question it held that a motion under section 114—5(a) must be in writing. We agree. The statutory requirement is explicit and requires no interpretation. A defendant who, on the day the case is set for trial, is informed as to the identity of the judge on whose call the case is set must be given a reasonable opportunity to file a written motion.

We need not and do not reach the question whether the appellate court correctly held that such motion may be filed prior to the time that a cause “has been placed on the trial call of a judge.” Nor need we, and therefore do not, reach the question whether under certain circumstances the requirement that the motion be in writing may be waived, for the reason that we are unable to read into the colloquy the statutory requirement that the motion state that the judge “is so prejudiced against him [the defendant] that he cannot receive a fair trial.” Counsel suggests that the court might be “privy to some information *** which would put the Defendant at a disadvantage” and that “it would be a conflict in your hearing.” In our opinion, these statements, individually or collectively, fail to meet the statutory requirement.

For the reasons stated the judgment is affirmed.

Judgment affirmed.


author: JUSTICE MORAN

text:
    (No. 57254.
    GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Alice Karneffel et al., Appellees).

      Opinion filed September 23, 1983.

      Peter M. Sfikas and William F. Richardson, of Chicago (Peterson, Ross, Schloerb & Seidel, of counsel), for appellant.
    Perz & McGuire, of Chicago (Frank M. Perz and James M. Ridge, of counsel), for appellee Alice Karneffel.
    Kane, Doy & Harrington, Ltd., of Chicago (Arthur 0. Kane, of counsel), for appellee Dinkel’s Bakery, Inc.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Alice Karneffel, filed an application for adjustment of claim with the Industrial Commission seeking benefits for the death of her husband. A lump-sum settlement contract between claimant and her deceased husband’s employer was presented to an arbitrator for approval. Petitioner, General American Life Insurance Company, filed an objection to approval of the settlement. Petitioner sought to intervene and obtain reimbursement for medical benefits it paid to claimant’s husband from 1966 until 1976 under a group medical insurance policy. The arbitrator found petitioner lacked standing to intervene in the proceeding and denied its claim for reimbursement. She reasoned the Industrial Commission was not the forum for such a determination and approved the settlement. The Industrial Commission affirmed, and the circuit court of Cook County confirmed the Commission’s decision.

Claimant’s husband, George Karneffel, worked as a baker for Dinkel’s Bakery, Inc. (Dinkel). Dinkel’s employees were covered by a group medical policy issued by petitioner. This policy specifically excluded benefits for “sickness covered by Workmen’s Compensation law, occupational disease law, or laws of a similar character.”

Karneffel suffered from bronchial asthma which was aggravated at the bakery, because of his sensitivity to flour. In 1966, he submitted a claim for medical benefits to petitioner. Initially, petitioner denied the claim, contending it involved a work-related illness not covered under its policy. Karneffel then sought benefits from Dinkel’s workmen’s compensation carrier. This insurer, however, sent a letter to him denying coverage on the ground that his illness did not come under the provisions of the Act. Although not explained in the letter, presumably coverage was denied on the basis that his asthma was an ordinary disease of life to which the general public is exposed outside of employment. (See Ill. Rev. Stat. 1965, ch. 48, par. 172.36(d); Western Foundry Co. v. Industrial Com. (1943), 384 Ill. 420; Stewart Warner Corp. v. Industrial Com. (1941), 376 Ill. 141.) Diseases of this kind were not compensable under the Workmen’s Occupational Diseases Act until it was amended in 1975. Compare Ill. Rev. Stat. 1975, ch. 48, par. 172.36(d), with Ill. Rev. Stat. 1973, ch. 48, par. 172.36(d). See Bunney v. Industrial Com. (1979), 75 Ill. 2d 413, 418; Interna tional Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 93; Rockford Transit Corp. v. Industrial Com. (1967), 38 Ill. 2d 111, 113-14.

Karneffel notified petitioner that Dinkel’s workmen’s compensation carrier denied coverage of his claim. Petitioner then made several medical benefit payments to him for his asthmatic condition from 1966 until 1976. According to petitioner’s own detailed statement, submitted for the record as part of an exhibit, these payments, and a few others for unrelated illnesses, totaled $7,172.94. Of this amount, only $130.40 was paid to Karneffel for his asthmatic condition subsequent to the effective date of the 1975 amendment. However, Karneffel never filed a workmen’s compensation claim against his employer under either the Act, or the Workmen’s Occupational Diseases Act as amended, for the $130.40 or any other amount.

On February 18, 1977, Karneffel died from “acute status asthmaticus” due to “severe allergy to wheat.” In March 1977 claimant filed her claim against Dinkel seeking benefits for the death of her husband. Over the next three years, petitioner corresponded with Dinkel’s workmen’s compensation carrier and indicated it wanted reimbursement for the medical benefits it paid to Karneffel if any workmen’s compensation benefits were paid to the widow. Subsequently, claimant and Dinkel reached an agreement to settle her claim for a lump sum of $20,000.

In October 1980 petitioner was served with notice that a hearing would be held on November 5, 1980, for the purpose of approving the settlement and that if petitioner had a claim it should make it on that date. Petitioner appeared and objected to approval of the settlement until it was first reimbursed for the benefits it paid Karneffel.

The question presented for our review is: Did the circuit court and the Commission err in denying petitioner the right to intervene in this proceeding to obtain, out of the widow’s lump-sum settlement, reimbursement for the medical benefits it paid to her deceased husband?

Relying on Hammond v. Prudential Insurance Co. of America (1966), 75 Ill. App. 2d 15, petitioner argues the widow’s settlement with Dinkel conclusively establishes that decedent’s diseased condition was compensable. Based on this premise, it reasons it should be reimbursed from her settlement by receiving a credit under the authority of section 8(j) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(j)) for the full amount of the benefits it paid to Karneffel from 1966 until 1976.

Hammond is distinguishable from the instant case. Moreover, it does not support petitioner’s contention that all of the benefits it paid to Karneffel under its group policy were compensable under either the Act or the Workmen’s Occupational Diseases Act. In Hammond, the employee filed a claim alleging his injuries were compensable under the Act. The arbitrator denied his claim and he appealed. Pending review, he entered into a lump-sum-settlement contract in which he agreed to accept and later received $4,000 in full settlement of all claims against his employer. This settlement specifically included all medical and hospital claims and was approved by the Commission.

The employee then brought suit in the circuit court to recover medical expenses from the group health insurer for the same injury. The health insurance policy excluded benefits for injuries covered by the Act regardless of whether such protection was afforded. The employee contended the policy exclusion was not applicable. He asserted his compromise settlement was substantially less than the benefits payable under the Act for his injuries. In addition, he maintained that, at the time of the accident, he was not acting within the scope of his employment. On this basis, he argued the settlement did not establish that his injuries were compensable and did not preclude recovery from the health insurer.

The court rejected his arguments indicating the merits of his claim under the Act were immaterial. The court concluded that to the extent his lump-sum settlement contained the medical expenses, such expenses were to be deemed compensable. Thus, they were excluded from coverage under the insurance policy.

Unlike the situation in Hammond, the employee in the instant case never collected any amount from his employer under the Act. There is no concern here over an employee attempting to be recompensed a second time in a separate suit for his medical expenses as there was in Hammond. Moreover, Hammond did not involve a claim filed by the widow seeking death benefits.

Petitioner also cites Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, and Aulich v. Aetna Life Insurance Co. (1981), 101 Ill. App. 3d 661, for the proposition that Karneffel’s diseased condition was compensable from 1966 to 1976. The facts in these cases are inapposite from the case at bar.

It should be noted petitioner’s own exhibit reveals some of the payments it made between 1966 and 1976 were for illnesses unrelated to Karneffel’s asthma or employment. The exhibit further shows that, of the total reimbursement petitioner is claiming, only $130.40 was paid after the 1975 amendment to the Workmen’s Occupational Diseases Act. Since Karneffel’s diseased condition was not compensable prior to July 1975, all of the group health benefits except the $130.40 were properly paid by petitioner in accordance with its insurance contract.

Regardless of the amount petitioner alleges it erroneously paid Karneffel, claimant and Dinkel argue the settlement here only involves payment of death benefits to a widow. They contend petitioner cannot reduce the widow’s settlement by amounts it paid to her husband during his lifetime.

Petitioner maintains that, under Illinois law, a widow is entitled to both death and health benefits. (Ill. Rev. Stat. 1975, ch. 48, par. 172.42.) Since it was not permitted to intervene, petitioner notes there was no evidentiary hearing pertaining to the exact nature of the widow’s claim. It then appears to argue that we should presume claimant’s settlement contains an amount which represents the health benefits petitioner paid to her husband as well as her death benefits. On this basis, petitioner asks this court to remand the case to the Commission with instructions to enter judgment in its favor for $7,172.94 either against claimant or Dinkel’s workmen’s compensation carrier.

Whether Karneffel should have pursued a claim for the $130.40 or some other amount against Dinkel’s workmen’s compensation carrier instead of accepting payment from petitioner has no bearing here. The instant case does not involve his claim. Rather, it involves a settlement for benefits to the widow payable as compensation for an injury which resulted in her husband’s death. This is an independent cause of action, separate and apart from an employee’s claim during his lifetime against his employer. See Board of Education v. Industrial Com. (1974), 57 Ill. 2d 307, 312; Burke v. Industrial Com. (1938), 368 Ill. 554, 556; American Steel Foundries v. Industrial Com. (1935), 361 Ill. 582, 589.

Thus, whatever amount allegedly was paid in error to Karneffel during his lifetime relates to his claim, not to the claim of his widow. Petitioner cannot now seek to intervene in the widow’s separate and independent cause of action and attempt to reduce her settlement by any such amount.

Petitioner’s reliance on section 8(j) of the Act for a credit is also misplaced. This section provides in pertinent part:

“Sec. 8. The amount of compensation which shall be paid to the employee for an accidental injury not resulting in death is:
(j) 1. In the event the injured employee receives benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under this Act, then such amounts so paid to the employee from any such group plan as shall be consistent with, and limited to, the provisions of Paragraph 2 hereof, shall be credited to or against any compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under this Act. *** Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against him by reason of having received such payments only to the extent of such credit.
2. Nothing contained in this Act shall be construed to give the employer or the insurance carrier the right to credit for any benefits or payments received by the employee other than compensation payments provided by this Act, and where the employee receives payments other than compensation payments, whether as full or partial salary, group insurance benefits, bonuses, annuities or any other payments, the employer or insurance carrier shall receive credit for each such payment only to the extent of the compensation that would have been payable during the period covered by such payment.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 138.8(j).

This provision involves a credit which the employer or insurance carrier can apply to compensation made or to be made to the employee. There is nothing in this section providing for a credit or reimbursement to a group health insurer out of the compensation payable to a widow for an injury resulting in death to her spouse.

Petitioner next asserts it was excluded from participating in the settlement negotiations between claimant, Dinkel and Dinkel’s workmen’s compensation carrier. Because of this, it maintains principles of equity, public policy and judicial economy require that it be allowed to intervene and be reimbursed in full in this proceeding rather than have to pursue its claim in a separate suit. We are referred to Aetna Life Insurance Co. v. Harris (3d Cir. 1978), 578 F.2d 52; Vetsch v. Schwan’s Sales Enterprises (Minn. 1979), 283 N.W.2d 884; Brooks v. A.M.F., Inc. (Minn. 1979), 278 N.W.2d 310; Special Disability Trust Fund v. University of Miami (Fla. Dist. Ct. App. 1980), 379 So. 2d 1323; Bryan v. Henderson Electric Co. (Ky. App. 1978), 566 S.W.2d 823; Solimano v. Consolidated Mutual Insurance Co. (1977), 146 N.J. Super. 393, 369 A.2d 1003.

Relying on this authority petitioner seeks a ruling from this court that a group health insurer can intervene in a workmen’s compensation case. These cases, however, involve statutes from other jurisdictions and do not provide appropriate guidance or precedents for our interpretation of the Act. Moreover, the cases cited are inapposite to the instant case. None involve a group health insurer attempting to intervene and obtain reimbursement for benefits paid to an employee during his lifetime out of a widow’s separate cause of action for the employee’s death.

For example, in Aetna Life Insurance Co., the employee received benefits from a group health insurer covering non-work-related injuries. He then sought compensation for the same injuries from his employer under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. sec. 901 et seq. (1976)). The court liberally interpreted section 919 of the statute as permitting a claim for reimbursement and, under these facts, allowed the group health insurer to intervene.

In Solimano, an insurer terminated benefits for lost wages and medical expenses it had been paying to the insured for injuries suffered in an automobile accident. The insurer contended the injuries were compensable under workmen’s compensation law and asserted the insured had to seek workmen’s compensation benefits. Until the insured did so, the insurer argued it had no obligation under its policy to continue making the payments. The court noted a New Jersey statutory provision provided for reimbursement to an insurance carrier from the employer when the carrier discharges an employer’s medical or wage continuation obligations. It then ordered the insurer to resume payment to its insured and allowed the insurer to file a petition before the Division of Worker’s Compensation to be reimbursed by the employer.

In Special Disability Trust Fund, the employee received medical benefits for an injury she sustained during her lunch hour under an insurance policy excluding work-related accidents. She also filed a workmen’s compensation claim. Two orders, stipulated to by the employer, were entered simultaneously on the claim. One denied and dismissed it with prejudice finding the accident occurred outside of the course and scope of employment. The judge’s findings indicated that the parties agreed to this order so as not to expose the claimant to a claim for reimbursement from the medical insurer. The other order approved a lump-sum settlement to the claimant for $25,000. The employer then sought reimbursement for the $25,000 it paid to the claimant from the State’s Special Disability Trust Fund. In seeking this reimbursement it represented to the judge there was really no dispute as to the compensability of the claim. The judge ordered the fund to reimburse the employer. On review, the court refused to condone such practices which, the court said, required an uninvolved insurance carrier to pay benefits for an injury not within its policy coverage, while relieving the employer of its obligation to pay any compensation.

In Brooks, the employee received payments for an injury under two group health insurance policies which ex-eluded claims for work-related accidents. He also filed a workmen’s compensation claim for the same injury. Pursuant to Minnesota procedure, the health insurers were notified of their right to intervene and seek reimbursement. However, before trial, the employee settled with the employer, without any participation by the group health insurers, and stipulated the injury did not arise in the course of his employment. The court noted a group health insurer’s right to intervene and obtain reimbursement in a workmen’s compensation case originally was allowed in Minnesota by case law. It indicated that rules subsequently were adopted to ensure interested parties would be notified of their right to intervene and seek reimbursement.

It then held that, consistent with its case law and rules of practice, where a group health insurer is excluded entirely from negotiations resulting in a final settlement of the employee’s claim, it should be reimbursed in full from the settlement award. Vetsch, also cited by petitioner, is another Minnesota case. It is factually similar to, and followed the reasoning in, Brooks.

In Bryan, the employee suffered a heart attack and filed a workmen’s compensation claim. The employer denied the claim contending it was not work-related. Subsequently, the employee and his union welfare fund paid the medical expenses. His suit against the employer was successful, and both he and the welfare fund demanded payment. The employer paid the employee the sums he expended but refused to pay the welfare fund, contending it was not a “party in interest.” The court disagreed, finding that a Kentucky statute provided any party in interest may file a suit to enforce a decision of the Workmen’s Compensation Board. It ruled this statute applied to the welfare fund, finding it was a “party in interest,” because it had paid 80% of the medical expenses. It then remanded the case to enable the welfare fund to be reimbursed.

Our act is a humane law of a remedial nature whose fundamental purpose is to provide employees and their dependents prompt, sure and definite compensation, together with a quick and efficient remedy, for injuries or death suffered in the course of employment. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 180-81; O’Brien v. Rautenbush (1956), 10 Ill. 2d 167, 173, overruled on other grounds by Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618.) In eliminating the common law rights and defenses of employers and employees, it has established a statutory proceeding governing workmen’s compensation claims. And while the Act is to be liberally construed to effectuate its purpose, it will not be given a strained construction not fairly within its provisions. See W. J. Newman Co. v. Industrial Com. (1933), 353 Ill. 190, 194.

We have found neither a provision in the Act nor any Illinois case which provides for intervention in a workmen’s compensation case by a health insurer seeking reimbursement. Nor do we find it readily apparent that such a' remedy will effectuate the purpose of the Act. While in certain circumstances such intervention might be warranted, we are of the opinion that this type of remedy in a workmen’s compensation proceeding must be provided by the legislature and not established by judicial fiat.

In addition, even if we were inclined to provide a group health insurer a right to intervene and seek reimbursement, we would not do so under the facts presented in the instant case. The health insurer here is attempting, in essence, to reduce the widow’s award by an amount it paid to her late husband pursuant to his claim for his injuries. As previously indicated, the widow’s claim for death benefits is an independent cause of action, separate and apart from an employee’s claim during his lifetime. Under these circumstances, there was no error committed in denying petitioner’s objection to the settlement and its claim for reimbursement.

For the reasons stated the judgment of the circuit court is affirmed.

Judgment affirmed.