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Towns v. Kessler

MARCH 8, 1973.




APPEAL from the Circuit Court of Madison County; the Hon. MICHAEL KINNEY, Judge, presiding.


Plaintiff appeals from orders of court dismissing his complaint as to The Travelers Indemnity Company and denying plaintiff's motion to strike the motion to dismiss and entering judgment in favor of the insurance company when plaintiff elected to stand upon his complaint. The trial court has found that there was no just reason for delaying enforcement or appeal of this order.

Plaintiff's complaint alleges, in substance, that a co-defendant of The Travelers Indemnity Company was engaged in the tank car business in Madison County, Illinois, and had sold for dismantling purposes certain dilapidated tank cars to the Purdy Company where the plaintiff was employed, and that these tank cars were transported to the premises of the Purdy Company; that the plaintiff while in the exercise of ordinary care, while an employee of Purdy Company was engaged in dismantling one of the cars and was injured as a result of the negligence of The Travelers Indemnity Company which had issued directions and orders and had exerted control over the Purdy Company's testing procedures on the cars, and had designed, implemented, and approved the safety testing procedures of Purdy; that Travelers has involvements with the Purdy Company in that its inspectors and other representatives went on the Purdy premises periodically to inspect, direct, and/or supervise the safety precautions which were taken on said premises; that Travelers was negligent in that it (a) failed to indicate proper testing procedures to Purdy, (b) failed to properly supervise testing procedures, (c) approved improper and inadequate safety measures to be utilized by Purdy, (d) failed to indicate to Purdy that appropriate warnings should be utilized in the work carried on at Purdy, (e) negligently performed safety inspections at Purdy's premises, (f) failed to detect and report the negligent and hazardous operations of Purdy; that as a proximate result, plaintiff sustained injuries and damages.

Defendant Travelers filed a motion to dismiss grounded on Illinois Revised Statutes, chapter 48, section 138-5, which provides, in pertinent part, that the employer's insurer for workmen's compensation is immune from civil suit of the type plaintiff filed, and that by reason of the statute, the complaint fails to state a claim upon which relief can be granted against Travelers. The motion was accompanied by an affidavit of the attorney stating that during the time mentioned in the complaint Travelers had a policy of insurance with Purdy which provided workmen's compensation coverage, and that any "involvements" of Travelers with Purdy as alleged in the complaint were solely by virtue of its position as insurer for workmen's compensation.

Plaintiff filed a motion to strike Travelers' motion to dismiss based entirely upon constitutional grounds, stating that the statute involved is unconstitutional for want of due process and equal protection of the laws in violation of the fourteenth amendment of the United States Constitution, article I, section 2, of the Illinois Constitution of 1970 and article II, section 19, of the 1870 Illinois Constitution, and that it violates article I, section 12 of the 1970 Illinois Constitution or article II, section 19 of the 1870 Illinois Constitution; that the statute further violates article I, section 16 of the 1970 Constitution or article II, section 14 of the 1870 Constitution, and violates article IV, section 13, of the 1970 Constitution or article IV, section 22, of the 1870 Constitution, and violates article I, section 13, of the 1970 Constitution or article II, section 5, of the 1870 Constitution. The only questions involved in this appeal are concerned with the claims of unconstitutionality of the above cited provision of the Workmen's Compensation Act.

The pleadings are extremely sketchy in setting forth the manner in which it is claimed that the statute violates the several articles of the constitution. From the brief filed in this court it is apparent that the plaintiff, while conceding the constitutionality of the denial of an action to the employee against his employer as being a valid classification or serving a legitimate legislative purpose, argues strenuously that the provision denying a common law or statutory action against the employer's insurer who provides safety service, advice, or recommendations is unconstitutional. The plaintiff sets forth his position in strong language; he repeatedly asserts by epithet that the statute is "irrational," "arbitrary," "capricious," "without any sound basis" and supported by "no valid reason."

In substance, the plaintiff argues that the only party who can be constitutionally relieved from liability when workmen's compensation benefits are paid is the employer. Plaintiff says that it is obvious (without any further argument than laying the claim) that the legislative restriction on liability to an insurance company is logically unthinkable.

The attorneys representing defendant, however, disagree, claiming that a majority of the states have awarded immunity to the compensation insurer and that the legislative classification is justified by (a) avoidance of double or triple payment in multiple liability, and (b) if liability results from the making of safety inspections, that these safety inspections will be withdrawn, denying the employees the benefit of the additional safety afforded by safety inspections.

This case follows a succession of events which are relevant to the purpose of the statute involved. In Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769, the Illinois Supreme Court held, construing Florida law, that a Florida statute did not grant a general contractor's compensation insurer, who had made safety inspections, immunity from a common law action by the insured employees. In the Nelson case, the defendant and amici curiae argued that it would be against public policy to permit recovery against a compensation carrier as a third party tort feasor, contending that the result would be a curtailment of safety inspections, to the ultimate detriment of working men and their families. Our Supreme Court said, however, "Furthermore, whether we look to the law of Florida or Illinois, such a question of public policy is for the legislature not for the courts. General Properties Co. v. Greening, 154 Fla. 814, 18 So.2d 908; Illinois Western Electric Co. v. Town of Cicero, 282 Ill. 468; People ex rel. Carruthers v. Cooper, 404 Ill. 395."

Following the Nelson decision the Illinois legislature enacted an amendment to section 5(a) of the Workmen's Compensation Act (Ill. Rev. Stat., ch. 48, sec. 138.5(a)), effective July 1, 1969, to enlarge the immunity granted there to the employer to include the employer's insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agent or employees of any of them. Our search discloses no other case bearing upon the constitutionality of this amendment to the Illinois Workmen's Compensation Act.

• 1 It is presumed that the General Assembly had, and acted with respect to, full knowledge and information as to the judicial decisions with respect to prior and existing law and legislation. Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill.2d 1, 248 N.E.2d 657; Nardi v. Segal, 90 Ill. App.2d 432, 234 N.E.2d 805.

We are concerned here only with the proposition of an immunity from a common law action accorded to an insurer who is alleged to have provided safety services to an employer of an injured employee subject to the Workmen's Compensation Act. The Nelson case was decided with respect to Florida law rather than Illinois law and the decision is, strictly speaking, dictum as far as the law of Illinois is concerned. It is, however, very persuasive authority for the point that Illinois would recognize a common law liability against a negligent insurer providing safety services. Together with the parties, we will assume for purposes of discussion that such a common law action does exist, absent the statute in question.

In like manner the statement of the Supreme Court in Nelson that public policy is a matter for the legislature is similarly dictum, but it is again very persuasive authority.

We are mindful that "* * * all presumptions are in favor of the constitutionality of the statute or ordinance. * * * [T]he burden of showing unconstitutionality is on the person who asserts it." ...

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