Cirrincione v. Johnson

Annotate this Case
Cirrincione v. Johnson, Nos. 83233, 83284 (10/1/98)
Docket Nos. 83233, 83284 cons.--Agenda 32--May 1998.
Johnson, Appellant).
Opinion filed October 1, 1998.

JUSTICE HEIPLE delivered the opinion of the court:
The issue before us is whether technical deficiencies are
sufficient to invalidate a lien under the Physicians Lien Act. 770
ILCS 80/1 (West 1996). The circuit court of Cook County held
valid a lien missing information required by statute, and
awarded plaintiff compensatory and punitive damages. The
appellate court affirmed the validity of the lien, but reversed the
punitive damages award. 287 Ill. App. 3d 683. We affirm the
appellate court's judgment as to the validity of the lien, but
reinstate the jury's award of punitive damages.

In December 1985 Gil Johnson was injured in an
automobile accident and was treated by plaintiff, Sal
Cirrincione, a chiropractor. Plaintiff filed a physician's lien with
Johnson's attorney, Lawrence Fox. The lien, signed by Johnson,
authorized Fox to pay plaintiff out of any settlement or
judgment proceeds from Johnson's personal injury suit against
the driver of the other vehicle in the accident, and also required
that any new attorney retained by Johnson honor the lien.
Shortly thereafter, Fox was appointed to the bench, and Johnson
retained defendant, attorney Michael Johnson (no relation). Both
Fox and plaintiff discussed plaintiff's lien with defendant.
Plaintiff asserts that defendant assured him that the lien was
acceptable, while defendant contends that he told plaintiff the
lien was faulty and advised him to complete a new lien.
In August 1988 plaintiff submitted reports and
documentation regarding his treatment of Johnson to Country
Mutual Insurance Company. The insurance company sent a
medical payment check to defendant in the amount of $3,744.
Defendant did not pay plaintiff with these funds; rather, he
released the money to Johnson after deducting his fee.
Defendant maintains, however, that the insurance company
stopped payment on the check and that neither he nor Johnson
received any money. Several months later, plaintiff contacted
defendant and discovered that the case had been settled for
$50,000. When plaintiff demanded payment pursuant to the lien,
defendant refused, responding that Johnson had told him that he
had already paid plaintiff.
In 1990 plaintiff filed this action against defendant. The
relevant allegations in plaintiff's complaint assert that defendant
violated the Physicians Lien Act; that he exercised unauthorized
control over funds belonging to plaintiff; and that defendant's
actions constituted willful and wanton misconduct justifying
punitive damages. The case proceeded to a jury trial, where the
court ruled as a matter of law that the lien was a valid
physician's lien. The jury awarded plaintiff $3,700 in
compensatory damages plus $12,100 in punitive damages. The
appellate court affirmed the compensatory award, agreeing that
the lien was valid; but reversed the punitive damages award,
holding that such damages were unavailable in this case. 287 Ill.
App. 3d 683. The appellate court's decision to uphold the
validity of the lien despite its deficiencies conflicted with
another appellate case, Meier v. Olivero, 279 Ill. App. 3d 630
(1996). Defendant filed a petition for leave to appeal and
plaintiff filed a cross-petition. This court consolidated and
allowed the petitions. 166 Ill. 2d R. 315.

The Physicians Lien Act provides in pertinent part:
"Every licensed physician practicing in this State who
renders services by way of treatment to injured persons ***
shall have a lien upon all claims and causes of action for
the amount of his reasonable charges up to the date of
payment of such damages.
*** [T]he lien shall *** include a notice in writing
containing the name and address of the injured person, the
date of the injury, the name and address of the licensed
physician practicing in this State, and the name of the party
alleged to be liable to make compensation to such injured
person for the injuries received, which notice shall be
served on both the injured person and the party against
whom such claim or right of action exists." 770 ILCS 80/1
(West 1996).
It is undisputed that plaintiff's lien did not comply with the
statute in the following respects: (1) it did not contain Johnson's
address; (2) it did not give the date of Johnson's injury; (3) it
did not list the name of the party or parties liable to make
compensation for Johnson's injuries; (4) it failed to give the
name of the tort defendant, that is, the other driver in the
automobile accident; (5) no attempt was made to serve the tort
defendant or his insurance carrier.
Are these deficiencies sufficient to defeat the lien?
Defendant argues that the lien is a creation of statute, and that
it must therefore strictly conform to the statute's requirements.
This court has emphasized, however, that technical deficiencies
should not be allowed to overwhelm the purpose of a lien
"The doctrine of strict construction was never meant to be
applied as a pitfall to the unwary, in good faith pursuing the
path marked by the statute, nor as an ambuscade from
which an adversary can overwhelm him for an immaterial
misstep. Its function is to preserve the substantial rights of
those against whom the remedy offered by the statute is
directed, and it is never employed otherwise." United Cork
Cos. v. Volland, 365 Ill. 564, 572 (1937).
In this case, the rights of the parties have not been
prejudiced by the technical deficiencies in the lien. Both
defendant and Johnson had actual notice, and those not served
with the lien are not parties to this action. Furthermore, any
missing information was already known by defendant. In short,
the errors were not material. To invalidate the lien due to the
instant technicalities would serve no purpose and would worship
form over substance. It would also be contrary to the purpose of
the lien, which is to lessen the financial burden on those who
treat nonpaying accident victims. See In re Estate of Cooper,
125 Ill. 2d 363, 368-69 (1988) (Hospital Lien Act and similar
statutes are enacted to promote the health and well-being of the
community by allowing assistance to people without regard to
ability to pay). Accordingly, the lien is valid and should be
Despite its holding that plaintiff's lien was valid, the
appellate court reversed the punitive damage award, holding that
such damages were not available pursuant to either the
Physicians Lien Act or a "breach of contract claim, which is the
best interpretation of plaintiff's alternative cause of action." 287
Ill. App. 3d at 689. Plaintiff, however, contends that he never
asserted a breach of contract claim, but rather asserted a
conversion claim that alleged that defendant converted funds
from both the medical payment check and the settlement. The
dispute is important because while punitive damages are
generally not available under a contract theory, they are
available in conversion. Kelsay v. Motorola, Inc., 74 Ill. 2d 172,
187 (1978) (traditionally, actions for breach of contract have not
given rise to punitive damages; however, punitive damages are
awarded when the cause of action is premised on a tort).
To prove conversion, a plaintiff must establish that (1) he
has a right to the property; (2) he has an absolute and
unconditional right to the immediate possession of the property;
(3) he made a demand for possession; and (4) the defendant
wrongfully and without authorization assumed control,
dominion, or ownership over the property. Western States
Insurance Co. v. Louis E. Olivero & Associates, 283 Ill. App.
3d 307, 310 (1996). Count III of plaintiff's third-amended
complaint states in relevant part:
"At the time Defendant Michael Johnson obtained the
medical payment check in the amount of $3,744 referenced
above, plaintiff had a right to control said funds to the
extent of his aforesaid Physicians' Lien and Defendant
Michael Johnson exercised unauthorized control over said
funds to the detriment of plaintiff through his failure to
remit and satisfy plaintiff's aforesaid Physicians' Lien."
Count IV of plaintiff's third-amended compliant repeats the
above allegations in regards to the $50,000 settlement.
Consistent with a conversion claim, the language of these counts
states that plaintiff had a right to property by lien, and that
defendant exercised unauthorized control over that property.
Furthermore, at trial plaintiff argued a conversion claim,
presenting evidence that demonstrated (1) the existence of a
lien, which established his right to a portion of the settlement
proceeds; (2) that defendant assumed control of the settlement
funds and the medical payment; (3) that plaintiff demanded
payment; and (4) defendant's refusal to turn over the funds.
After hearing this evidence, the jury was instructed on the
elements of conversion. Plaintiff never argued a breach of
contract claim or asked the jury to be instructed on one, and
indeed, there was no contract between plaintiff and defendant to
be breached. Plaintiff properly set forth a claim of conversion,
and the jury's decision that the conversion occurred is not
contrary to the manifest weight of the evidence, and will
therefore not be disturbed. See Midland Hotel Corp. v. Rueben
H. Donnelley Corp., 118 Ill. 2d 306, 312-13 (1987) (an appellate
court should not substitute its judgment unless the jury's
determination is against the manifest weight of the evidence).
Punitive damages are awarded "when torts are committed
with fraud, actual malice, *** or when the defendant acts
willfully, or with such gross negligence as to indicate a wanton
disregard of the rights of others." Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978). While the question of whether punitive
damages can be awarded for a particular cause of action is a
matter of law (Loitz v. Remington Arms Co., 138 Ill. 2d 404,
414 (1990)), the question of whether a defendant's conduct was
sufficiently willful or wanton to justify the imposition of
punitive damages is for the jury to decide (Smith v. Hill, 12 Ill. 2d 588, 595 (1958)). The evidence in this case as to defendant's
behavior was conflicting. Defendant maintained that his failure
to honor the lien was justified, that he urged plaintiff to file
another lien, that Johnson told him that he had paid plaintiff,
and that he never received money from the insurance company's
medical payment. Plaintiff, however, asserted otherwise,
contending that defendant assured him the lien was adequate and
would be honored, and then with full knowledge of the lien
refused to pay plaintiff from the medical payment or the
settlement. The jury chose to believe plaintiff's version of
events, and found that it demonstrated willful and wanton
behavior by defendant. We will not disturb that determination,
as it is the province of the jury to resolve conflicts in the
evidence, to pass upon the credibility of the witnesses, and to
decide what weight to give to a witness' testimony. Maple v.
Gustafson, 151 Ill. 2d 445, 452 (1992). Furthermore, this
decision was not against the manifest weight of the evidence.
We therefore affirm the judgment of the appellate court as
to the validity of plaintiff's lien, and reinstate the jury's award
of punitive damages. The judgment of the appellate court is
affirmed in part and reversed in part, and the judgment of the
circuit court is affirmed.

Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed.