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Bituminous Cas. Corp. v. Merchants Mtr. Frgt.

JUNE 18, 1973.

BITUMINOUS CASUALTY CORPORATION, PLAINTIFF-APPELLEE,

v.

MERCHANTS MOTOR FREIGHT, INC. ET AL., DEFENDANTS, — (ADMIRAL MERCHANTS MOTOR FREIGHT, INC., DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order granting summary judgment in favor of plaintiff, Bituminous Casualty Corporation and against defendants Admiral Merchants Motor Freight, Inc., (successor to Merchants Motor Freight, Inc., hereinafter referred to as "Merchants") and George Dietz. No appeal has been taken by George Dietz.

On September 14, 1961, George Dietz was an employee of Western Transportation Company, plaintiff's insured. George Dietz was injured while he was assisting the driver of a truck belonging to defendant Merchants.

The injury occurred while Dietz was helping the driver release his trailer, and while doing so Dietz was run over by the Merchants truck. As a result of the accident, Dietz suffered a severe fracture of his right leg.

On September 25, 1962, plaintiff, as the Workmen's Compensation insurer of Western Transportation Company, entered into a settlement with George Dietz under which Dietz was paid a lump sum of $4,000 by plaintiff.

George Dietz had previously received Workmen's Compensation benefits of $230 from the plaintiff. The settlement was approved by the Industrial Commission as provided by the Workmen's Compensation Act.

George Dietz had previously instituted a common law action in the Superior Court of Cook County against defendant-appellant, Merchants.

On October 3, 1961, plaintiff sent defendant, Merchants, notice of its subrogation lien arising out of Workmen's Compensation benefits paid to George Dietz and Merchants acknowledged receipt of the notice of lien.

Thereafter, defendants Merchants and George Dietz entered into a settlement of the common law action without satisfying or in any manner protecting the lien of the plaintiff, Bituminous Casualty Corporation.

Plaintiff then filed a complaint for breach of its lien against both Merchants and Dietz seeking recovery of the $4,230 in Workmen's Compensation benefits it had paid to Dietz.

Defendant Merchants answered the complaint denying the allegation that Dietz was within the scope of his employment by Western Transportation Company at the time he was injured, and alleging that his injuries therefore did not arise out of and in the course of his employment. Merchants also alleged as affirmative defenses that the injuries did not arise out of and in the course of Dietz' employment and that the voluntary payments made by plaintiff to George Dietz did not enable plaintiff to acquire a lien under the terms and provisions of the Workmen's Compensation Act.

Plaintiff subsequently filed a motion for summary judgment and on October 7, 1971, summary judgment was granted against both defendants, Merchants and George Dietz. On the motion of defendant Merchants, the order of October 7, 1971, was vacated as to defendant Merchants only and the plaintiff's motion for summary judgment was reset for argument. On October 15, 1971, the trial judge again granted summary judgment in favor of plaintiff and against defendant, Merchants. Merchants appeals.

Defendant argues that summary judgment was improperly granted because the pleadings did not establish as a matter of law that the Workmen's Compensation Act was applicable to the injuries sustained by George Dietz. Defendant premises this argument primarily on the fact that the Workmen's Compensation settlement contract entered into by George Dietz and Western Transportation Company (Dietz' employer and plaintiff's insured) recited in part:

"Terms of settlement and reasons therefore: Respondent, Western Transportation Co., denies that the injuries sustained by George Dietz arose out of and in the course of his employment, but to avoid prolonged litigation, Western Transportation Co. agrees to pay and George Dietz agrees to accept the sum of $4,000.00 In A Lump Sum in full of any and all claims of any kind, nature and/or description on account of the accident on ...


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