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Smith v. Metro. Sanitary Dist.

OPINION FILED JUNE 1, 1978.

JOHN W. SMITH, PLAINTIFF-APPELLANT,

v.

THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM BRUSSELL, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County granting a motion for summary judgment against the plaintiff, John Smith. The action was originally brought in the circuit court by John Smith as an employee of W.E. O'Neil and S.J. Groves, a joint venture, for damages due to injuries suffered on the joint venture job site. The original complaint, which was later amended, named the Metropolitan Sanitary District of Greater Chicago, a corporation; Kamp, Dresser & McKee, a partnership, Boynton Engineering, Inc., a corporation; W.E. O'Neil Construction Company, S.J. Groves & Sons Company, a corporation, and W.E. O'Neil and S.J. Groves, a joint venture, as defendants and proceeded on theories of negligence, products liability and violation of the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, pars. 60 through 69).

The joint venture, W.E. O'Neil Construction Company and S.J. Groves & Sons Company, brought a motion for summary judgment on the basis the plaintiff was its employee at the time of the injuries and his exclusive remedy therefore was under the Illinois Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5). The motion was granted.

Subsequently, the defendant, W.E. O'Neil Construction Company, brought a motion for summary judgment on the ground the common law and statutory cause of action was barred because the plaintiff was, at the time of the injuries, an employee of W.E. O'Neil Construction Company within the meaning of the Illinois Workmen's Compensation Act, wherein his exclusive remedy for such injuries should lie. After being contested by the plaintiff the motion was granted. The plaintiff has taken this appeal from the summary judgment entered in favor of W.E. O'Neil Construction Company.

The issue presented for review is whether John Smith was an employee of W.E. O'Neil Construction Company at the time he suffered his injuries.

On October 19, 1971, W.E. O'Neil Construction Company (hereinafter called "O'Neil") and S.J. Groves & Sons Company (hereinafter called "Groves") entered into an "Agreement for Joint Venture" for the purpose of bidding on the Salt Creek Water Reclamation Plant Construction Project. The agreement specified if the parties were "awarded said contract":

"[The] parties * * * constitute themselves as Joint Venturers for the purpose of performing and completing the Construction Contract * * * it being expressly understood * * * that the parties are not making any permanent partnership agreement or permanent joint venture agreement * * * and nothing in this agreement shall be construed as a limitation of the powers or rights of any party hereto to carry on its separate business for its sole benefits * * *."

The "Agreement for Joint Venture" also provided, inter alia, (1) each company would appoint certain representatives to act for it with regard to the joint venture, (2) separate books would be kept with respect to the joint venture, (3) separate bank accounts would be kept for "all joint venture funds," (4) each company would have a 50% interest with respect to "all moneys" and "any and all liabilities" derived from the performance of the contract, and (5) the "general supervision and management" of the Salt Creek Construction Project would be under the "charge and control of a Project Manager who shall be subject only to the control of O'Neil and Groves and given such powers as they shall delegate to him."

The joint venture was awarded the Salt Creek Construction Project on November 4, 1971. The joint venture thereafter obtained the approval of the Industrial Commission of Illinois to act as a self-insurer with regard to the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.4).

In order to fulfill its obligations with regard to the Salt Creek Construction Project the joint venture proceeded to hire employees. The plaintiff, John Smith, was one of those hired. Smith's employment with the joint venture was not tied to or connected with any equipment leased to it by O'Neil. It was the intention of the joint venture in engaging in this hiring process to fully staff itself with the requisite personnel on a permanent basis.

All persons hired by the joint venture were required to complete a hire slip form along with W-2 and W-4 forms.

After being hired, John Smith was carried on the joint venture payroll and was not on any other payroll. The payroll checks he received clearly stated they were paid not by either company on its own behalf but by the joint venture. The joint venture had its own Federal income tax identification number for John Smith and all social security and withholding taxes were deducted on the joint venture payroll.

Subsequent to the execution of the "Agreement for Joint Venture," O'Neil leased to the joint venture a Ford flatbed tractor and trailer. The truck was used to haul just about anything and was only one of six vehicles leased to the joint venture by O'Neil.

On August 31, 1973, John Smith had been working for the joint venture for approximately one year and four months, having been hired in April of 1972. On this day, at about 12 or 1 p.m., John Smith was washing out a concrete bucket used to pour either walls or columns for buildings. In order to accomplish this task John Smith had to stand on the side of ...


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