                     N O T IC E
                                                      NOS. 5-09-0071 & 5-09-0072
 Decision filed 03/04/10. The text of
                                                               IN THE
 this decision m a y be changed or

 corrected prior to the              filing of a

 Pe tit io n   for    R e h e a r in g   or   the
                                                    APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

NANCY J. HOWELL,                           ) Appeal from the
                                           ) Circuit Court of
   Plaintiff,                              ) Williamson County.
                                           )
v.                                         ) No. 07-L-123
                                           )
JESSICA J. DUNAWAY,                        )
                                           )
   Defendant                               )
                                           )
(Nancy J. Howell, Petitioner-Appellee, v.  ) Honorable
Southern Illinois Hospital Services, d/b/a ) John Speroni,
Herrin Hospital, Respondent-Appellant).    ) Judge, presiding.
________________________________________________________________________

SHERRY D. W ENDLING,                          ) Appeal from the
                                              ) Circuit Court of
    Plaintiff,                                ) Williamson County.
                                              )
v.                                            ) No. 06-LM-121
                                              )
BOBBY E. WOOLARD,                             )
                                              )
    Defendant                                 )
                                              )
(Sherry D. Wendling, Petitioner-Appellee, v.  )
Southern Illinois Hospital Services, d/b/a    ) Honorable
St. Joseph Memorial Hospital and Memorial     ) Brad K. Bleyer,
Hospital of Carbondale, Respondent-Appellant).) Judge, presiding.
________________________________________________________________________

               JUSTICE WELCH delivered the opinion of the court:

               These two cases have been consolidated for decision because they present a common

question of law: whether a hospital's statutory lien for services rendered to an injured

plaintiff, filed pursuant to the Health Care Services Lien Act (770 ILCS 23/1 et seq. (West

2008)), is subject to a reduction under the common-fund doctrine for attorney fees incurred


                                                                  1
by the injured plaintiff in obtaining recovery against the individual liable for the injuries.

Because no disputed questions of fact are presented and the issue is strictly a matter of law,

our review is de novo. Von Meeteren v. Sell-Sold, Ltd., 274 Ill. App. 3d 993, 996 (1995).

       The Health Care Services Lien Act (the Act) creates a lien on behalf of every health

care professional and health care provider that renders any service on behalf of an injured

person upon all the claims and causes of action of that injured person; the lien is in the

amount of the reasonable charges. 770 ILCS 23/10 (West 2008). The lien attaches to any

verdict, judgment, award, settlement, or compromise secured by or on behalf of the injured

person on his claim or cause of action. 770 ILCS 23/20 (West 2008). On the petition of any

interested party, the circuit court shall adjudicate the rights of all the interested parties and

enforce the lien. 770 ILCS 23/30 (West 2008). The Act further provides that it shall not be

construed as limiting the right of the health care professional or provider to pursue collection,

through all the available means, of its reasonable charges or of the amount of its reasonable

charges that remain not paid after the satisfaction of its lien under the Act. 770 ILCS 23/45

(West 2008).

       Both the plaintiffs were injured in motor vehicle accidents and were treated in one or

more of the respondent hospitals. They filed personal injury lawsuits against the drivers of

the motor vehicles that injured them. The hospitals filed liens against any recovery in these

personal injury actions pursuant to the Act. Both of the personal injury suits were settled,

with the plaintiffs recovering damages. The plaintiffs then filed petitions under section 30

of the Act (770 ILCS 23/30 (West 2008)) to adjudicate these liens, seeking to apply the

common-fund doctrine to reduce the amount of the liens by one-third for attorney fees

incurred by the plaintiffs in their personal injury lawsuits. The circuit court granted the

petitions, applying the common-fund doctrine for the first time to a lien filed pursuant to the

Act. The hospitals appeal.


                                               2
       As a general rule, the right of an attorney to recover for professional services must rest

on the terms of a contract of employment with the person sought to be charged and cannot

be based on a benefit derived by a third party from the services rendered by the attorney.

Maynard v. Parker, 54 Ill. App. 3d 141, 143 (1977), aff'd, 75 Ill. 2d 73 (1979). Further, the

client who engaged the attorney and paid his fees is not entitled to recover a proportionate

share of the attorney fees from those who receive a benefit from the services. Maynard, 54

Ill. App. 3d at 143. The common-fund doctrine is an exception to these general rules.

Maynard, 54 Ill. App. 3d at 143.

       The common-fund doctrine is based on the equitable concept that an attorney who

performs services in creating a fund should in equity and good conscience be allowed

compensation out of the whole fund from all of those who seek to benefit from it. Maynard,

54 Ill. App. 3d at 143. The doctrine rests upon the perception that persons who obtain the

benefit of a lawsuit without contributing to its costs are unjustly enriched. Bishop v.

Burgard, 198 Ill. 2d 495, 509 (2002). The policy behind the common-fund doctrine is to

prevent those who benefit from a fund without contributing to the cost of its creation from

"freeloading." Bishop, 198 Ill. 2d at 510. Accordingly, the common-fund doctrine permits

a party who creates, preserves, or increases the value of a fund in which others have an

ownership interest to be reimbursed from that fund for litigation expenses incurred, including

counsel fees. Scholtens v. Schneider, 173 Ill. 2d 375, 385 (1996). Thus, it is now well-

established that a litigant or a lawyer who recovers a common fund for the benefit of persons

other than himself or his client is entitled to a reasonable attorney fee from the fund as a

whole. Scholtens, 173 Ill. 2d at 385. The doctrine has found its expression in statutes and

has been accorded public policy status by judicial decision. See Bishop, 198 Ill. 2d at 509.

       To sustain a claim under the common-fund doctrine, the attorney must show that (1)

the fund was created as the result of legal services performed by the attorney, (2) the claimant


                                               3
did not participate in the creation of the fund, and (3) the claimant benefited or will benefit

from the fund that was created. Bishop, 198 Ill. 2d at 508.

       In the cases before us, the circuit courts found that these three elements had been

proven. The settlement funds had been created as a result of the legal services performed by

the plaintiffs' attorneys, the lienholders who were making claims against the settlement funds

did not participate in the creation of the funds, and the lienholders would benefit from the

funds that were created. The circuit courts found that the lienholders would be unjustly

enriched if they received a benefit from the settlement funds without contributing to the costs

of the associated legal services. Accordingly, the circuit courts granted the plaintiffs'

requests for the payment of attorney fees under the common-fund doctrine.

       The hospitals argue, however, that pursuant to the supreme court's decision in

Maynard v. Parker, 75 Ill. 2d 73, 75-76 (1979), the common-fund doctrine does not apply

to hospital liens under the Act. The facts of Maynard are nearly identical to those in the case

at bar. The plaintiff had been injured in an automobile accident and was treated at a hospital,

which filed a lien pursuant to the Act against any proceeds from the plaintiff's action against

the tortfeasor who had injured him. The underlying personal injury lawsuit was settled in

favor of the plaintiff, and on a petition to adjudicate the lien, the plaintiff's attorney sought

attorney fees from the hospital pursuant to the common-fund doctrine. The circuit court

awarded attorney fees under the doctrine and the appellate court reversed. The supreme court

affirmed the judgment of the appellate court.

       In its opinion, the supreme court held that the common-fund doctrine does not apply

to the debtor/creditor relationship between the injured plaintiff and the hospital, or to the lien

created by the Act, but applies only to a traditional subrogor/subrogee relationship where the

obligation to pay arises only from the plaintiff's recovery against a third party, that is, out of

the creation of the fund. Maynard, 75 Ill. 2d at 75. The court pointed out that in a


                                                4
subrogor/subrogee relationship, the plaintiff is required to repay the sum advanced only in

the event and to the extent that any recovery is made from a third party. Maynard, 75 Ill. 2d

at 75. In that situation, the recovery is itself dependent on the creation of the fund. Maynard,

75 Ill. 2d at 75.

       The supreme court distinguished the debtor/creditor relationship between an injured

plaintiff and a hospital having a lien under the Act:

       "Here, plaintiff's liability to the hospital was not dependent upon the creation of a

       fund; plaintiff was a debtor obligated to pay for the services rendered by the hospital

       out of any resources which might become available to him." Maynard, 75 Ill. 2d at

       75.

Accordingly, the supreme court held that the common-fund doctrine does not apply to a

lienholding hospital enforcing its lien against the fund.

       The circuit courts in the case at bar were aware of the Maynard decision and

considered it, but they concluded that the supreme court had in a more recent case, Bishop

v. Burgard, 198 Ill. 2d 495 (2002), expanded the common-fund doctrine to include a

debtor/creditor relationship such as the one at bar. In Bishop, the plaintiff had incurred

medical expenses as a result of injuries sustained in an automobile accident. The plaintiff

was a participant in her employer's ERISA plan (the plan), which paid the plaintiff's medical

expenses. The plaintiff brought suit against the tortfeasor who had injured her, and the suit

was settled in favor of the plaintiff. The plaintiff filed a motion asking that the court apply

the common-fund doctrine to reduce the amount claimed by the plan from the settlement

fund, reflecting a proportionate reduction for attorney fees and costs incurred in the personal

injury action for the plan's share of the recovery. The circuit court granted the motion, and

the appellate court reversed.

       The supreme court reversed the judgment of the appellate court and affirmed that of


                                               5
the circuit court, holding that the common-fund doctrine did apply to the plan. While the

relationship between the plaintiff and the plan was one of subrogor/subrogee, and not one of

debtor/creditor, the supreme court used the following broad language:

              "But for [the plaintiff's] action, and the efforts of her attorney, there would

       have been no fund from which the plan could have obtained reimbursement. For

       purposes of applying the common fund doctrine, it is irrelevant that the party who

       benefits from a lawyer's services has a right to compensation, be it an undifferentiated

       right of reimbursement or subrogation[,] as is asserted here, or a right to compensation

       under some other theory. Obviously, everyone who brings a legal action is asserting

       some claim of right. However, a mere right may amount to nothing more than a

       possibility unless it is properly asserted. That is the point. The real question is

       whether the plan obtained the benefit of a lawsuit without contributing to its costs.

       [Citation.] If so, it was unjustly enriched for purposes of applying the common fund

       doctrine. *** 'If the costs of litigation are not spread to the beneficiaries of the fund,

       they will be unjustly enriched by the attorney's efforts.' [Citation.]" (Emphasis in

       original.) Bishop, 198 Ill. 2d at 510.

       One of the judges in the case at bar stated as follows:

       "In my opinion the *** holding in Bishop expands the application of the common

       fund doctrine beyond that expressed in its earlier Maynard decision. In this case, the

       'Hospitals' [sic] potential independent claims against the plaintiff were only legal

       rights representing the possibility of recovery unless, and until, properly asserted. The

       'Hospitals' clearly benefitted from plaintiff's lawsuit. The costs of this litigation

       should be shared by all beneficiaries. In my opinion, based on Bishop, the common

       fund doctrine applies."

       We agree with the circuit court that by the language it used in Bishop, the supreme


                                                6
court intended to, and did, expand the application of the common-fund doctrine beyond that

expressed in its earlier Maynard decision to include not only the traditional

subrogor/subrogee relationship but also the relationship between an injured plaintiff and a

lienholder hospital. We believe that by its use of this language, the supreme court intended

to, and did, shift the focus away from the relationship between the parties and toward what

it called the "real question" of whether the claimant benefited from the lawsuit without

contributing to its costs, thereby becoming unjustly unenriched. Bishop, 198 Ill. 2d at 510.

That approach is consistent with fundamental fairness and with the equitable basis of the

common-fund doctrine and its public policy principles. Furthermore, we believe that this

expansion of the common-fund doctrine to include lienholders under the Act makes

eminently good sense and is supported by logic, case law, and public policy.

       In Maynard, the supreme court made a distinction between the subrogor/subrogee

relationship and the debtor/creditor relationship on the basis that in the subrogation context

there is a direct relationship between the obligation to pay and the creation of the fund,

whereas in the debtor/creditor context the obligation to pay exists independently of the

creation of the fund. The debtor is obligated to pay even without the creation of the fund,

whereas the subrogor is obligated to pay only if and to the extent the fund is created. Thus,

in a subrogation context, the benefit to the subrogee is a direct benefit from the creation of

the fund, whereas in the debtor/creditor context, the benefit to the creditor from the creation

of the fund is merely incidental. As the appellate court explained in Maynard, 54 Ill. App.

3d at 145, "[T]he benefit to the hospital resulting from [the attorney's] services was merely

incidental to the primary purpose of obtaining compensation for plaintiff's injuries."

       We note, however, that while a debtor/creditor relationship does exist between the

plaintiffs and the hospitals, in the context of the action before us the relationship is more than

just that of debtor/creditor. The relationship is that of debtor/lienholder, and the context of


                                                7
the action appealed from is the enforcement of the lien, not the collection of a debt.

Furthermore, the lien exists only by virtue of the creation of the fund, and the right to enforce

it is a direct benefit of the creation of that fund. Indeed, as the circuit court found, the lien

is worthless unless and until, through the expenditure of funds and effort by the plaintiff's

attorney, the claim is successfully asserted to completion. The lien will only be paid if the

injured party incurs the cost to effectuate a settlement or judgment. The hospital may not

stand in the plaintiff's shoes as a subrogee, but it is entirely dependent upon the plaintiff's

attorney to create the fund against which to enforce its lien.

       Accordingly, we conclude that the relationship between the plaintiffs and the

lienholder hospitals in the case at bar is much more similar to a subrogor/subrogee

relationship and less like a debtor/creditor relationship than the court in Maynard recognized.

While the hospital's right to payment may not be dependent on the creation of the fund, its

statutory lien is in fact dependent on the creation of the fund, for the lien specifically and

expressly attaches only to the common fund. 770 ILCS 23/20 (West 2008). The lien does

not attach to all the assets or resources of the debtor/plaintiff, but only to the plaintiff's

recovery against a third party, that is, the common fund. This is the critical distinction that

renders the lienholder hospital similar to a subrogee for purposes of the application of the

common-fund doctrine.

       The action before us is not one to collect a debt, but one to enforce a statutory lien,

a lien that expressly applies only to the common fund. Thus, the enforcement of the lien is

itself dependent on the creation of the fund. The lien can be enforced " 'only in the event and

to the extent that any *** recovery is made' " from a third party. Maynard, 75 Ill. 2d at 75

(quoting Baier v. State Farm Insurance Co., 66 Ill. 2d 119, 122 (1977)).

       The hospital is not a mere creditor, such as a furniture store that is seeking to recover

a debt from funds recovered by the debtor from an unrelated lawsuit. See Maynard, 54 Ill.


                                               8
App. 3d at 145. The hospital's lien specifically attaches only to the settlement funds that are

recovered by the debtor in a suit to recover damages for the very injuries which gave rise to

the hospital's debt.

       The real question as set forth in Bishop, 198 Ill. 2d at 510, is not whether the hospitals

are lienholders or subrogees but whether the hospitals have been so benefited by the

plaintiffs' attorneys who rendered services in obtaining settlements that the attorneys should

in equity be allowed their compensation out of the common fund. If the costs of litigation

are not spread to the beneficiaries of the fund, they will be unjustly enriched by the attorneys'

efforts. Bishop, 198 Ill. 2d at 510. This is precisely the sort of "freeloading" the common-

fund doctrine was designed to prevent. Bishop, 198 Ill. 2d at 510. By seeking payment from

the fund in reliance on the lien, the hospitals directly received the benefits of the work done

by the plaintiffs' attorneys. This is not an incidental benefit of the creation of the fund but

a direct benefit. Because of this, it would be fundamentally unfair to allow a hospital to

collect on its lien without paying its prorated share of the legal expenses.

       Furthermore, without the creation of the fund against which to enforce its lien, a

hospital would have to use its own legal resources to recover the monies due to it. If the

plaintiff's attorney secures a judgment or settlement, the hospital recovers its funds without

expending its own legal resources. If we did not allow a division of legal costs, hospitals

would be encouraged to sit back and reap the rewards of another's labor at that party's

expense. W e do not believe that is consistent with public policy.

       Finally, if a health care professional or provider does not want to be responsible for

its proportionate share of costs and attorney fees expended in creating the common fund, it

simply need refrain from asserting its statutory lien against the common fund. As the Act

expressly provides, the professional or provider may still use all the other available means

to collect the debt owed to it by the injured plaintiffs. 770 ILCS 23/45 (West 2008). But if


                                               9
the professional or provider seeks to collect the debt owed to it out of the common fund

created by the plaintiffs and their attorneys, the common-fund doctrine applies and it is

responsible for its proportionate share of attorney fees and costs.

       Finally, the hospitals argue that to apply the common-fund doctrine to the hospitals'

recovery creates a conflict of interest between the plaintiffs and their attorneys which will

result in the plaintiffs owing more money to the lienholders. The hospitals argue that any

amounts paid to the attorneys out of the lienholders' recovery will simply have to be paid at

a later date by the plaintiffs. However, we find this to be a question for a later day and not

ripe for review. The amount owed by the plaintiffs to the hospitals is not before us in this

case. The only question before us in the case at bar is whether the common-fund doctrine

applies to the hospitals' liens. We have answered that question in the affirmative.

       For the foregoing reasons, the orders of the circuit court of Williamson County are

hereby affirmed.



       Affirmed.



       GOLDENHERSH, P.J., and SPOMER, J., concur.




                                             10
                                  NOS. 5-09-0071 & 5-09-0072
                                            IN THE
                              APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      NANCY J. HOWELL,                           ) Appeal from the
                                                 ) Circuit Court of
         Plaintiff,                              ) Williamson County.
                                                 )
      v.                                         ) No. 07-L-123
                                                 )
      JESSICA J. DUNAWAY,                        )
                                                 )
         Defendant                               )
                                                 )
      (Nancy J. Howell, Petitioner-Appellee, v.  ) Honorable
      Southern Illinois Hospital Services, d/b/a ) John Speroni,
      Herrin Hospital, Respondent-Appellant).    ) Judge, presiding.
      ________________________________________________________________________
      SHERRY D. W ENDLING,                          ) Appeal from the
                                                    ) Circuit Court of
          Plaintiff,                                ) Williamson County.
                                                    )
      v.                                            ) No. 06-LM-121
                                                    )
      BOBBY E. WOOLARD,                             )
                                                    )
          Defendant                                 )
                                                    )
      (Sherry D. Wendling, Petitioner-Appellee, v.  )
      Southern Illinois Hospital Services, d/b/a    ) Honorable
      St. Joseph Memorial Hospital and Memorial     ) Brad K. Bleyer,
      Hospital of Carbondale, Respondent-Appellant).) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:        March 4, 2010
___________________________________________________________________________________
Justices:          Honorable Thomas M. Welch, J.
                 Honorable Richard P. Goldenhersh, P.J., and
                 Honorable Stephen L. Spomer, J.,
                 Concur
___________________________________________________________________________________
Attorneys        Michael F. Dahlen, Feirich/Mager/Green/Ryan, 2001 West Main Street, P.O. Box
for              1570, Carbondale, IL 62903; John R. Daly, P.O. Box 3988, Carbondale, IL 62902-
Appellants       3988 (for Southern Illinois Hospital Services, d/b/a Herrin Hospital, St. Joseph
                 Memorial Hospital, and Memorial Hospital of Carbondale)
___________________________________________________________________________________
Attorneys        Neal Heflin, Heflin Law Firm, 820 Karnes Road, Galatia, IL 62935 (for Nancy J.
for              Howell); John D. Foley, P.O. Box 685, Anna, IL 62906 (for Sherry D. Wendling)
Appellees
___________________________________________________________________________________
