APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
ENGELSTEIN, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Mary Ann Goetz, appeals from an order of the circuit court of Cook County dismissing her action against defendants, Avildsen Tool and Machines, Inc. (Avildsen), and Employers Insurance of Wausau, Inc. (Employers), Avildsen's insurer, for injuries sustained during the course of her employment with Avildsen. The trial court granted defendants' motion to dismiss plaintiff's second amended complaint on the ground that the complaint failed to state a cause of action.
The allegations of the second amended complaint set forth that Avildsen owned and operated a manufacturing plant which included an automatic drill hopper department. Plaintiff was employed by Avildsen as an operator of an automatic drill hopper machine. On December 10, 1974, while operating the hopper unit, plaintiff's right hand and arm were caught in the machine and the resulting serious injury necessitated amputation of the arm.
Subsequently, plaintiff's attorney initiated an investigation to determine if a third-party action existed against the manufacturers of the drill hopper machine and the machine's component parts. Plaintiff's attorney wrote to Employers requesting the identity of the manufacturers of the machine and the machine's component parts. On September 30, 1975, Employers' claims supervisor responded by letter to plaintiff's attorney, indicating that Employers had conducted its own investigation to determine the feasibility of a third-party action. The claims supervisor's letter included the following:
"As part of our investigation of the above case dating to December 10, 1974, we conducted a third party investigation with the same thoughts in mind that you would undoubtedly have reference third party possibilities. Our investigation was unable to uncover any possibilities whatsoever in that direction. I therefore feel that any further examinations of the machine would not be beneficial."
Plaintiff filed her suit on January 9, 1976. On February 18, 1976, the trial court ordered defendants to allow plaintiff and her representative to inspect the machine and to copy all maintenance records relating to the machine. On March 12, 1976, plaintiff's attorney and engineer examined the machine. On March 24, 1976, the vice president of Avildsen's manufacturing department wrote Employers stating that only a full set of blueprints of the machine was available and no other manuals or written materials concerning the machine unit existed. On June 23, 1976, plaintiff's engineer reported that the machine as manufactured did not have proper safety guards. The engineer was unable to determine the identity of any component parts manufacturers.
On August 17, 1976, Avildsen's attorney reported to plaintiff's attorney that the drill hopper machine had been manufactured by one of Avildsen's employees. On October 12, 1976, plaintiff propounded interrogatories to defendants concerning the manufacture of the machine and requested the identity of all component parts manufacturers. Avildsen filed its answers to the interrogatories in February of 1977, after the statute of limitations had expired on plaintiff's third-party action. Employers never answered the interrogatories.
In her four-count action, plaintiff seeks to hold Avildsen strictly liable in tort for manufacturing a defective machine, the use of which allegedly caused plaintiff's serious injury. Further, plaintiff seeks to hold both defendants liable for conspiracy, negligent investigation of plaintiff's third-party action, and fraudulent misrepresentation. On motion, the trial court dismissed plaintiff's second amended complaint for failure to state a cause of action.
Plaintiff's first count, premised upon strict liability in tort, alleges that Avildsen had a dual status as the manufacturer of the machine unit and as employer of plaintiff. Plaintiff further asserts that by virtue of Avildsen's dual capacity status, plaintiff may still pursue Avildsen in this proceeding as manufacturer of a defective machine unit despite the section 5(a) immunity conferred upon employers under the Workmen's Compensation Act. Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).
The second amended complaint sets forth the facts previously noted and also details the specific defects of the machine. Additionally, the complaint charges that Avildsen exposed plaintiff to an unreasonable hazard because "had this machine been produced by a manufacturer who would ordinarily have produced this kind of machine for the general public, the machine would have been safer and more reasonably fit for the purposes for which it was intended."
Count II alleges that defendants conspired to deny plaintiff access to information "so as to deny plaintiff an opportunity to file a third party complaint against any other persons * * *." The conspiracy is alleged to have monetarily benefited defendants who believed "they could face or be involved in a third party action by any persons responsible to the plaintiff." Count II further states that the defendants concealed information concerning plaintiff's right to bring a third-party action against other persons, including component parts manufacturers.
Count III alleges that the defendants were negligent in their investigation of plaintiff's possible third-party action because they: (1) failed to determine whether or not a valid third-party action existed; (2) failed to obtain any engineers or other experts to inspect the machine to determine whether any component parts were defective; and (3) negligently wrote a letter to plaintiff's attorney indicating that no third-party action was feasible.
Count IV asserts a claim for relief predicated upon fraud. It is contended that defendants, through their employees and agents, knowingly made a false statement concerning the existence of a third-party action. The count further states that plaintiff, to her detriment, relied on the representation, which was made by defendants with intent to deceive plaintiff.
Plaintiff first contends the trial court erred in dismissing her strict liability count against Avildsen. Plaintiff argues that since Avildsen is being sued in its dual or second capacity as manufacturer of an allegedly defective machine, section 5(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a)) should not bar her strict liability action against her employer. Section 5(a) provides in pertinent part:
"No common law or statutory right to recover damages from the employer, * * * 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, * * *." Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).
It is apparent from the language of the statute that an employer is immune from a common law or statutory action for damages brought by an employee for injuries sustained during the course of employment. The "[W]orkmen's [C]ompensation [A]ct contemplates that an employer may rely on workmen's compensation insurance as a means of fulfilling his liability to his employees under the Act." (Reid v. Employers Mutual Liability Insurance Co. (1974), 59 Ill.2d 194, 199, 319 N.E.2d 769, 771.) Plaintiff seeks ...