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KING v. CAIRO ELKS HOME ASSOCIATION

October 31, 1956

DEXTER KING, PLAINTIFF,
v.
CAIRO ELKS HOME ASSOCIATION, A CORPORATION, AND CAIRO ELKS CLUB, A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Juergens, District Judge.

This matter comes before this Court on the respective defendants' motion to dismiss the suit or in the alternative to require the plaintiff to join as party plaintiff his subrogation insurer, United States Fidelity and Guaranty Company. The respective motions being identical, they will herein be treated as one.

Jurisdiction in this Court exists by virtue of diversity of citizenship and the matter in controversy exceeding the sum of $3,000, 28 U.S.C. § 1332. The Complaint alleges that the Cairo Elks Home Association was the owner of certain real estate improved with a four-story building located in Cairo, Illinois; that the Cairo Elks Club leased from the Cairo Elks Home Association portions of the premises and other facilities throughout the building, including a television aerial located on the roof of the building; that the plaintiff was an employee of one Orval Ozment and T.A. Pritchett, Inc., who had a contract with the defendants for the repair of the television aerial and the installation of another aerial. That while working on the television aerial it broke and collapsed, causing plaintiff to fall to the roof of the building, charging the defendants with negligence and carelessness as a result of which the plaintiff was severely injured. The Complaint further alleges that under the Illinois Workmen's Compensation Act an award was made which was confirmed by the Circuit Court of Alexander County and paid by the United States Fidelity and Guaranty Company, insurance carrier of Ozment and T.A. Pritchett, Inc., but that in accordance with Rule 17(a) of the Rules of Civil Procedure, 28 U.S.C. said insurance carrier is not made a party to this action.

The second ground for dismissal is based on the fact that the plaintiff has failed to join an indispensable party; namely, the United States Fidelity and Guaranty Company, a corporation, which is the real party in interest since the Complaint shows on its face that it paid workmen's compensation to the plaintiff as provided for by the Illinois Workmen's Compensation Act as insurer of plaintiff's employers and that, by reason thereof, it is a subrogee of said alleged employers and the plaintiff to the extent of such payment by reason of the provisions of Paragraph 138.5(b) supra and that this suit was instituted, is being maintained and controlled by the United States Fidelity and Guaranty Company as such subrogee insurer.

Third, in the alternative the defendants move the Court to require the plaintiff to bring in as additional party plaintiff either voluntary or involuntary the insurer, United States Fidelity and Guaranty Company, or that he make said company a party defendant because it is an indispensable party by reason of its being the real party in interest as aforesaid and having at least a joint interest in the alleged cause of action.

The defendants' first contention that the plaintiff's cause of action is barred by the statute of limitation in that same was not brought within one year and nine months after the occurrence is based upon Paragraph 138.5, Chapter 48, Illinois Revised Statutes 1953, sub-section (b) which reads as follows:

    "* * * In the event the said employee or his
  personal representative shall fail to institute a
  proceeding against such third person at any time
  prior to 3 months before said action would be barred
  at law said employer may in his own name, or in the
  name of the employee, or his personal representative,
  commence a proceeding against such other person for
  the recovery of damages on account of such injury or
  death to the employee * * *."

Defendants contend that the above provision of the statute expressly provides that if the employee does not bring his action within the period prior to three months before it would be barred at law, that then the employer has a right to maintain it. In

other words, that the employee's right to maintain the action is barred unless he institutes his suit within the period of one year and nine months from the date of the accident. This the statute does not say or mean. Section 15 of Chapter 83 Illinois Revised Statutes entitled Limitations provides as follows:

    "Actions for damages for an injury to the
  person * * * shall be commenced within two years next
  after the cause of action accrued."

The provision of Section 138.5, supra, in no way alters the two-year limitation provided for in Chapter 83, supra, but simply gives protection to the employer by providing that if the employee for any reason fails, neglects or refuses to institute a proceeding against such third person at any time prior to three months before the action would be barred at law, that then the employer should have a right to institute such proceeding. In other words, it gives to the employee the sole privilege of instituting such proceeding, which privilege shall prevail for a period of one year and nine months after the occurrence in question and, if such employee fails, refuses or neglects to exercise his right or privilege as given him by the statute, then the employer, to enable him to protect his own rights, is given the right and privilege to file a suit as provided for in said section within the last three months prior to the running of the statute of limitations and nowhere can be found any provision which would shorten the two-year period within which the employee may bring his cause of action. According to the provisions of Chapter 83, supra, the time certain within which to bring a cause of action is two years. According to Section 138.5, Chapter 48, supra, the two years above provided for are broken down into periods definite, giving to the employee the unqualified right to file his suit against the third party within one year and nine months after the occurrence and the employer the coextensive and independent right to file within the last three months of the two-year period if the employee fails, refuses or neglects to file such suit. This, in the opinion of the Court, is the interpretation to be placed upon Section 138.5(b), supra. We have found no case in this jurisdiction in which this precise question has been passed upon, and counsel for the respective parties have not cited to this Court any case involving this particular question.

Point two of defendants' motion is grounded upon the proposition that the plaintiff has failed to join an indispensable party, United States Fidelity and Guaranty Company, a corporation, which is the real party in interest, it being the workmen's compensation carrier and having paid the award under the Act to the plaintiff and that as subrogee of said alleged employers it is the real party in interest to the extent of such payment by reason of the provisions of Paragraph 138.5(b), supra.

And under point three the defendants contend in the alternative that this Court require the plaintiff to bring in as additional party either voluntary or involuntary the United States Fidelity and Guaranty Company, a corporation, on the grounds that it is an indispensable party for the reasons ...


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