Recent Decisions. Borrowed Employee s Remedy Limited by Workers Compensation Act

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 22, Number 4 ( ) Recent Decisions By: Stacy Dolan Fulco and Katherine K. Haussermann CremerSpina, LLC, Chicago Borrowed Employee s Remedy Limited by Workers Compensation Act In Prodanic v. Grossinger City Autocorp, Inc., 2012 IL App (1st) , the Illinois Appellate Court First District upheld the trial court s award of summary judgment in favor of the defendant, finding that the plaintiff was a borrowed employee and therefore the Worker s Compensation Act (820 ILCS 305/1 et. seq. (West 2008)) provided the plaintiff s exclusive remedy. Prodanic, 2012 IL App (1st) , 1. The plaintiff s decedent filed a wrongful death and survival action after the plaintiff was fatally injured on the defendant s premises while repairing an overhead garage door. Id. The defendant operated several dealerships under the same corporate family. The plaintiff had been originally hired by Grossinger Chevrolet (Chevrolet) in 2008 but he was working at Grossinger Autocorp (Autocorp), doing business as Grossinger City Toyota (Toyota), at the time of his incident. Id. 2. The defendant Autocorp moved for summary judgment, arguing that the decedent was a borrowed employee at the time of his incident and therefore his claim against the defendant was barred by the exclusive remedy provision of the Worker s Compensation Act (Act). Id. 11. Autocorp argued that Chevrolet had loaned the decedent to Autocorp as its employee and that Autocorp exercised complete control over him while he was on loan to Autocorp. Id. Further, the defendant argued that the Autocorp managers could stop the decedent s work and that the decedent relied upon the assistance of Autocorp s other employees. Id. 11. Additionally, the defendant argued that the decedent consented to his employment with Autocorp by traveling to that location to work for different people on a regular basis and the decedent completed all assignments received from Autocorp managers. The decedent traveled to Autocorp without a supervisor from Chevrolet and Chevrolet did not give the decedent instructions as to his work at Autocorp. Id. The trial court granted summary judgment in favor of the defendant and the plaintiff appealed. Id. 12. The appellate court first noted that the Act protects employees by imposing liability on the employer for accidental workplace injuries, notwithstanding fault, in exchange for the employee relinquishing any commonlaw or statutory rights to damages from their employer. Id. at 14 (quoting 820 ILCS 305/5 (West 2008)). Section 5(a) of the Act also dictates that an employee may not bring a civil action against a borrowing employer. Prodanic, 2012 IL App (1st) , 14. In evaluating whether an employee in the general employment of one entity has been loaned to another entity for the performance of special work, thereby becoming a borrowed employee, the court must consider whether the borrowing employer had the right to control and direct the manner in which the employee performed the work and whether a contract of hire existed between the borrowing employer and the employee. Id. 15 (citing A.J. Johnson Paving Co. v. Industrial Comm n, 82 Ill. 2d 341, 348, 412 N.E.2d 477 (1980)). Page 1 of 6

2 The appellate court explained that the primary factor evaluated in determining whether an employee is a borrowed employee is the right to control the manner and direction of the employee s work. Prodanic, 2012 IL App (1st) , 16. There are multiple factors that would support a determination that the borrowing employer had the right to control and direct the manner of the employee s work. First, if the employee worked the same hours as the borrowing employer. Second, if the employee received instruction from the borrowing employer s foreman and was assisted by the borrowing employer s employees. Third, if the loaning employer s supervisors were not present. Fourth, if the borrowing employer was permitted to tell the employee when to start and stop working. Fifth, if the loaning employer relinquished control of its equipment to the borrowing employer. Id. 16 (citing A.J. Johnson Paving Co., 82 Ill. 2d at 349). The appellate court found that the only reasonable determination to be drawn from the depositions and affidavits of record was that the decedent was a borrowed employee. Prodanic, 2012 IL App (1st) , The appellate court found that the evidence supported that Autocorp had the right and authority to control the decedent s work and the manner in which it was performed. Id. Specifically, in addition to the decedent regularly coming to Autocorp on routine days, Autocorp could also call the decedent directly and tell him that they needed him. Id. 18. While the decedent was at Autocorp, the Autocorp managers would write out lists of tasks for the decedent to complete and would set general time perimeters for those tasks. Id. The Autocorp managers could also stop the decedent from working if they felt that the manner of his work was unsafe. Id. 19. While the decedent could solicit bids from contractors the decedent could not hire those contractors without Autocorp s approval. Id. 19. There were no Chevrolet supervisors or employees present when the decedent performed work at Autocorp and the decent was assisted by employees of Autocorp while performing work there. Id. Finally, the president of Autocorp had the right to discharge the decedent from employment. Id. The court also found that the decedent s actions gave rise to an implied employment contract sufficient to satisfy the second factor of the borrowed employee analysis. Id. 17, 21. Specifically, the decedent had keys to the Autocorp dealership, would comply with the tasks assigned by the president and managers of Autocorp, was given a credit card to make purchases for the dealership and occasionally used a car owned by Autocorp. Id. 21. The president of Autocorp also considered the decedent to be an employee of Autocorp and understood that he was hired with the understanding that he would work at both dealerships. Id. The appellate court rejected the plaintiff s assertion that Autocorp could not have acted as the decedent s employer because the decedent was never processed as an employee of Autocorp. Id. 20. The appellate court noted that the fact that the decedent was officially hired and paid only through Chevrolet and that Chevrolet provided the decedent s worker s compensation coverage was consistent with a loaned employee situation. Id. 20. As the appellate court found that the facts presented allowed only one reasonable inference, that the decedent was a borrowed employee of Autocorp, the appellate court upheld the lower court s finding of summary judgment. Id. 23. Civil Claim Arising Out of Fatal Altercation at Workplace Barred by Act In Rodriguez v. Frankie s Beef/Pasta and Catering, 2012 IL App (1st) , the Illinois Appellate Court First District upheld the trial court s award of summary judgment in favor of the defendant, finding that Section 5(a) of the Worker s Compensation Act (820 ILCS 305/1 et. seq. (West 2006)) provided the plaintiff s exclusive remedy after the decedent was shot and killed by a co-worker. Rodriquez, 2012 IL App (1st) , 1. The plaintiff s decedent filed a claim alleging that the defendant negligently hired and retained an employee who shot and killed the decedent while he was at work. Id. 5. Page 2 of 6

3 The day before the fatal altercation the owner of the business observed an argument between the decedent and the employee. Id. The owner asked the employee who had been arguing with the decedent to go home for the day but the owner told the employee s brother that the employee could return to work as scheduled the following day. Id. The owner did not observe any physical confrontation between the decedent and the employee that day. Id. After the employee left the premises the owner spoke with other employees and learned that the altercation allegedly arose out of the fact that the decedent had been promoted to the fry cook position while the other employee had been on leave in Mexico. Id. 6. After speaking with the employees the owner decided that he would terminate the employee but he did not have the opportunity to do so before the shooting occurred. Id. The following day the owner was working in his office when he heard what he believed were fireworks inside the store. Id. 7. He left his office to investigate and saw the decedent bleeding and lying on the floor of the store and the other employee leaving the store with a gun in his hand. Id. The defendant filed a motion for summary judgment, arguing that the plaintiff s injury arose from the course of his employment and therefore his claim was barred by section 5(a) of the Worker s Compensation Act. Id. 11. The appellate court noted that the Act prohibits the employee from bringing a common law action against his employer unless he can show that the injury (1) was not accidental; (2) did not arise from his employment; (3) was not received in the course of his employment; or (4) was not compensable under the Act. Id. 16 (citing Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237, 408 N.E.2d 198 (1980)). The appellate court explained that accidental injuries include injuries that are intentionally inflicted upon one employee by a coemployee, as those injuries are accidental from the employer s viewpoint, unless the employer directly or expressly authorized the co-employee to commit the assault. Rodriquez, 2012 IL App (1st) , 17 (citing Meerbrey v. Marshall Field & Co., Inc., 139 Ill. 2d 455, 463, 564 N.E.2d 1222 (1990) and Richardson v. County of Cook, 250 Ill. App. 3d 544, 549, 621 N.E.2d 114 (1st Dist. 1993)). The appellate court rejected the plaintiff s argument that the shooting was not accidental and not foreseeable because the owner of the restaurant had sent the employee home the day before the shooting to cool off and the owner planned to terminate his employment on the day of the shooting because he believed the employee was a harm to others. Rodriquez, 2012 IL App (1st) , 19. The appellate court did not find any indication in the testimony that the owner believed the employee posed a serious threat of harm to the other employees and that the most important consideration for the owner was for his employees to get along so they could work together. Id. 20. The appellate court also rejected the plaintiff s argument that there was a question of fact as to whether the altercation arose of out the decedent s employment or whether it was a purely personal dispute. Id. 21. The court noted that all of the witness testimony supported that the altercation took place because the decedent had been promoted to the fry cook position and if the decedent and employee had not been employed at the restaurant, it is unlikely that the decedent would have been involved in the altercation. Id. 22. As such, the appellate court found that the altercation arose out of the decedent s employment and summary judgment was appropriate. Id. Plaintiff s Lack of Insurance and Inability to Pay for Medical Care Found Admissible In Vanoosting v. Sellars, 2012 IL App (5th) , 970 N.E.2d 614 (5th Dist. 2012), the Illinois Appellate Court Fifth District ruled that the trial court erred in excluding testimony from the plaintiff that she Page 3 of 6

4 did not seek medical treatment for three years after an accident because she did not have medical insurance or the ability to pay to rebut the defense theory that she no longer had pain and suffering, when it could have been restricted to its proper scope and purpose. Vanoosting, 2012 IL App (5th) , The plaintiff filed a negligent suit after being rear-ended in her vehicle. The defendant filed an admission of liability and the case proceeded to trial on the issue of damages only. Id. 1. The first trial ended in a mistrial because of statements made by a juror to the judge in chambers. During the second trial, on cross-examination of the plaintiff, defense counsel elicited that the plaintiff had not been to the doctor for the last three years. On redirect, the plaintiff s attorney asked the plaintiff if she had any health insurance since the accident and she responded that she did not. After the plaintiff rested her case in chief, the judge declared a mistrial at the request of the defense attorney due to the health insurance question being asked. Id. 3. Prior to the start of the third trial, the plaintiff filed a motion in limine seeking to introduce evidence that the plaintiff was not covered by insurance in response to the defendant s claims that she sought little to no medical treatment in the last three years. In the alternative, the plaintiff requested that the defendant be barred from making such a claim. The court denied the motion to admit the evidence but granted the plaintiff s request that the defendant be barred from claiming or arguing that the plaintiff had sought little to no treatment in three years. Id. 4. During the jury instruction meeting with the judge, the defendant objected to the plaintiff s request for future medical expenses, future pain and suffering and future loss of a normal life as elements of damages as there was no evidence the jury could base such future awards. The court allowed the elements of damages to be claimed. Id. 7. During the third trial, the jury learned that the plaintiff had no medical treatment for three years and then the plaintiff testified that she had obstacles that prevented her from seeking the medical care she desired. Id. 10, 12. In response to the defendant s objection, the jury was told to disregard that question. Outside the presence of the jury, the plaintiff then made an offer of proof and the plaintiff testified that she did not have health insurance. Id. 11. The jury awarded the plaintiff damages for past medical expenses and past and future pain and suffering but nothing for loss of a normal life. Based on the amounts awarded, it seemed that the jury also did not award anything for future medical expenses. Id. 19. The plaintiff filed a post-trial motion requesting a new trial arguing that she was deprived of a fair trial when the circuit court refused her testimony that she did not seek medical treatment in the years before trial due to a lack of medical insurance. The plaintiff also argued that the zero award for loss of a normal life was against the manifest weight of the evidence and a product of improper argument by defense counsel. The post-trial motion was denied and the appeal was filed. Id. 20. The appellate court started their review by noting that although evidence of the existence of health insurance is generally inadmissible to prove liability, such evidence may be admitted to prove relevant issues raised in a case. Id. 22 (citing Tomaszewski v. Godbole, 174 Ill. App. 3d 629, 635, 529 N.E.2d 260 (3rd Dist. 1988). In other words, the court explained that the general rule that the existence of health insurance is inadmissible is based on a traditional relevance analysis. Vanoosting, 2012 IL App (5th) , 22. According to Illinois Rule of Evidence 401, relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id. 23 (citing Ill. R. Evid. 401 (eff. Jan. 1, 2011)). Here, the plaintiff s testimony was that she did not seek further treatment due to her lack of insurance and that was determined to be of consequence to her claim for future medical expenses and to the rebuttal of the defense theory that she no longer has pain and suffering or a need for treatment due to her lack of treatment in the last three years. Therefore, the appellate court found that the plaintiff s proffered testimony was relevant under Illinois rules. Vanoosting, 2012 IL App (5th) , 23. Page 4 of 6

5 As required under Rule of Evidence 403, the court next looked to whether the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Vanoosting, Id. The appellate court did not find that to be the case here. It noted it was mindful of the potential impact that the plaintiff s financial position could have on the sympathies of the jury, but felt that Illinois Rule of Evidence 105 could be used to restrict the evidence to its proper purpose and scope. For these reasons, the court found that the plaintiff s testimony was admissible and the trial court erred in excluding it. Id. 24. The appellate court next had to determine if the error warranted a new trial. Id. 25 (citing Stricklin v. Chapman, 197 Ill. App. 3d 385, , 554 N.E.2d 658 (5th Dist. 1990)), the court noted that in a case close enough on the facts that a jury could easily decide either way, any substantial error which might have tripped the scales calls for a reversal for a new trial. In his case, the contested testimony relates directly to the central controversy of the case, being the extent of the plaintiff s damages and whether the plaintiff is entitled to damages for future pain and suffering, medical expenses and loss of a normal life. Vanoosting, 2012 IL App (5th) , 25. For these reasons, the judgment of the circuit court was reversed and the cause was remanded for a new trial. Id. 28. Appeal Dismissed Because Motion to Reconsider Did Not Toll Time for Filing In Dus v. Provena St. Mary s Hosp., 2012 IL App (3d) , 968 N.E.2d 1178 (3d Dist. 2012), the Appellate Court Third District dismissed an appeal because it was not timely filed within 30 days after the entry of the order disposing of the last pending post-judgment motion directed against that judgment or order and the plaintiff s motion to reconsider the initial motion did not toll the 30-day period for filing a notice of appeal. Dus, 2012 IL App (3d) , 19. Plaintiff s decedent, Dus, an ambulance driver, sued defendant Provena St. Mary s Hospital for knee injuries sustained while assisting in transporting a patient into the ER. Id. 1. The plaintiff claimed he was injured when a hospital employee hit him with a laundry cart and knocked him down. The jury found the defendant negligent and awarded $300,000 in damages but found that the plaintiff was 50% contributorily negligent and therefore reduced the damages. Id. The plaintiff filed a post-trial motion for judgment notwithstanding the verdict on the issue of contributory negligence. The motion was denied because counsel failed to appear for the motion and the plaintiff moved to reconsider the denial. The court allowed the plaintiff to re-file its initial judgment n.o.v. motion and more than three months later denied the motion on the merits. The appeal then followed. Id. 2. The defendant filed a motion to dismiss the appeal under Illinois Supreme Court Rule 303(a)(2) arguing that the appellate court did not have jurisdiction over the appeal because the plaintiff filed the notice of appeal more than 30 days after his post-trial motion was denied by the court. The appellate court initially denied the motion to dismiss but the defendant requested reconsideration of that ruling in its appellate brief. The court noted that it had a duty to analyze jurisdiction before proceeding to the merits of the case. Id. 9. The Illinois Supreme Court commands strict compliance with its rules governing the time limits for filing a notice of appeal and neither a circuit court nor an appellate court has the authority to excuse compliance with the filing requirements mandated by the supreme court s rules. Id. 10 (citing Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150, 632 N.E.2d 1010 (1994)). Illinois Supreme Court Rule 303 mandates that a notice of appeal must be filed within 30 days of a final order, unless a timely posttrial motion directed against the judgment is filed. Ill. S. Ct. R. 303(a)(1). In that event, the notice of appeal is due within 30 days after the entry of the Page 5 of 6

6 order disposing of the last pending postjudgment motion directed against that judgment or order. Id. A motion to reconsider the trial court s ruling on a postjudgment motion does not extend the time to appeal. Dus, 2012 IL App (3d) , 11 (citing Ill. S. Ct. R. 303(a)(2) (eff. May 30, 2008)( No request for reconsideration of a ruling on a postjudgment motion will toll the running of the time within which a notice of appeal must be filed under this rule. )). The plaintiff argued that the denial of his motion was not a ruling on the merits but was tantamount to striking his motion from the calendar for failing to appear but the appellate court did not agree because the court order stated the motion was denied. Also, the plaintiff s response was a motion to reconsider, not a motion to reinstate. Dus, 2012 IL App (3d) , 14. The plaintiff next argued that its appeal was timely because it was within 30 days of the trial court s ruling on the defendant s unrelated post-trial motion. The appellate court again disagreed because the rule is that it must be filed within 30 days of the specific judgment or order, not any judgment or order. Id. 15. For these reasons, the appellate court held that the plaintiff failed to file a timely notice of appeal and the appeal was dismissed for lack of jurisdiction. Id. 19. About the Authors Stacy Dolan Fulco is a partner at the Chicago law firm of CremerSpina, LLC. She practices primarily in the areas of premises liability, products liability and wrongful death defense. She received her undergraduate degree at Illinois State University and her J.D./M.B.A. degree from DePaul University. She is a member of the IDC. Katherine K. Haussermann is an associate at the law firm of CremerSpina, LLC. She practices primarily in the areas of general tort defense and premises liability. She received her undergraduate degree at the University of Illinois at Urbana-Champaign and her J.D. from Loyola University Chicago School of Law. She is a member of the IDC. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 22, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL , , idc@iadtc.org Page 6 of 6