No. 47596. Appeal from the Appellate Court for the Fifth
District; heard in that court on appeal from the Circuit Court of
Franklin County; the Hon. William G. Eovaldi, Judge, presiding.
No. 47861. Appeal from the Circuit Court of St. Clair
County; the Hon. David W. Costello, Judge, presiding.
No. 48317. Appeal from the Circuit Court of Cook County; the
Hon. Nicholas J. Bua, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1977.
C.E. Heiligenstein, of Belleville (William J. Harte, Ltd. and Philip J. Rock, of Chicago, for appellant.
Wagner, Bertrand, Bauman & Schmieder, of Belleville (Bernard H. Bertrand, of counsel), for appellee.
Frank J. Wiedner and William J. Harte, Ltd., of Chicago (Philip Rock and John Gervasi, of counsel), for appellant.
Jerome N. Groark, Terence E. Flynn, and Rooks, Pitts, Fullagar and Poust, of Chicago (John G. Poust and Douglas F. Stevenson, of counsel), for appellees.
These consolidated appeals present two common issues: first, whether the exclusive-remedy provision of section 5(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a)) was intended to bar an action under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.) by an injured workman against a general contractor who "is liable to pay compensation" to that workman under section 1(a)(3) of the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(a)(3)); and second, assuming it was intended to bar such an action, does section 5(a) violate the employee's right to due process and equal protection of the law.
Section 5(a) of the Workmen's Compensation Act provides, in pertinent part:
"No common law or statutory right to recover damages from the employer, his 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 agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a).)
Section 1(a)(3) of the Act states:
"Any one engaging in any business or enterprise referred to in subsections 1 and 2 of Section 3 of this Act who undertakes to do any work enumerated therein, is liable to pay compensation to his own immediate employees in accordance with the provisions of this Act, and in addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he is liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor has insured, in any company or association authorized ...