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Fregeau v. Gillespie





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Kankakee County, the Hon. John F. Michela, Judge, presiding.


On March 6, 1979, Thomas L. Fregeau and his wife, Patricia, filed a civil complaint for assault and battery against Glover Gillespie in the circuit court of Kankakee County. The complaint alleged that the defendant struck Thomas Fregeau with a wrench on February 18, 1979, causing severe injury. Fregeau asked for compensatory and punitive damages, and his wife sought damages for loss of consortium. In his answer, the defendant, as an affirmative defense, asserted that both Thomas Fregeau and he were employed at a General Foods plant in Kankakee at the time of the alleged occurrence, and in regard to the claimed occurrence, Fregeau had filed an application for adjustment of claim with the Industrial Commission. The defendant then moved for summary judgment, which motion was granted on August 11, 1981. Attached to the motion was a deposition of Fregeau, in which he acknowledged filing for and receiving workmen's compensation benefits from General Foods. The appellate court, with one justice dissenting, reversed, holding that the decision to accept workmen's compensation benefits did not preclude the plaintiffs from bringing an action against the co-employee defendant for the intentional tort. (106 Ill. App.3d 224.) We granted the defendant's petition for leave to appeal under Rule 315 (73 Ill.2d R. 315).

The parties informed us in oral argument that the workmen's compensation proceeding was pending before the Industrial Commission. The only matter in dispute before the Commission, however, was the nature and extent of the injuries. The employer had already paid temporary benefits and medical expenses, and had agreed that the accident is compensable under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.).

We consider that the judgment of the appellate court, as the dissenting justice observed (106 Ill. App.3d 224, 229 (Stouder, J., dissenting)), directly conflicts with a recent holding of this court, and it must be reversed. In Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, this court considered whether a cause of action for the intentional infliction of emotional distress could be brought by an employee against his employer, the officers of the employer, and a co-employee, in view of the exclusivity provisions of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). In relevant part, section 5(a) of the Act provided, as it does now:

"(a) 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. 1979, ch. 48, par. 138.5(a).)

Section 11 of the Act stated then and does now:

"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act." Ill. Rev. Stat. 1979, ch. 48, par. 138.11.

The plaintiff Collier was an employee of Wagner Castings and became ill while at work. William A. Stogner, a nurse or medical attendant at the plant, allegedly provided little assistance to the plaintiff, and though the plaintiff had symptoms of a heart attack, Stogner told him that it was only indigestion. The plaintiff alleged that Stogner's conduct was extreme and outrageous, and for the purpose of the exclusivity issue before it, this court assumed that the complaint was sufficient to set out a cause of action for intentional infliction of emotional distress.

The plaintiff had already released Wagner Castings from all liability under the Workmen's Compensation Act through a lump-sum settlement which had been approved by the Industrial Commission. The defendants contended that even if the complaint did allege a cause of action, it could not proceed to trial in view of the exclusivity provisions of the Act and the settlement agreement.

This court held that the action could not be maintained. In interpreting the exclusivity sections we have quoted above, the court stated: "To escape the bar of these sections, plaintiff would have to prove either that the injury (1) was not accidental (2) did not arise from his or her employment, (3) was not received during the course of employment or (4) was non-compensable under the Act." (Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 237.) The court observed that emotional distress could be a compensable injury under the Act, and that according to the allegations the injury arose out of and in the course of employment. The dispositive question, then, was whether the injuries were accidental.

The court framed the question:

"An ambiguity in the law arises from cases in which the term `accidental' has been defined. (See 2A A. Larson, Workmen's Compensation sec. 68.12 (1976).) An injury must be traceable to a definite time, place and cause to be considered accidental within the meaning of the Act. (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill.2d 244, 249; Johns-Manville Corp. v. Industrial Com. (1975), 60 Ill.2d 221, 225.) Injuries inflicted intentionally by a co-employee are compensable under the Act as long as those injuries arose out of and in the course of the employment (Associated Vendors, Inc. v. Industrial Com. (1970), 45 Ill.2d 203), because the injury is accidental from the employee's point of view. The ambiguity arises from the obvious fact that the injury was intentionally, not accidentally, inflicted." 81 Ill.2d 229, 238.

In regard to the employer and its officers, the court said that because the employer did not direct, encourage or commit an intentional tort, an action could not be maintained against the employer and its officers. From the employer's standpoint, the court observed, an assault was simply another industrial mishap.

As to the co-employee Stogner, however, the issue was different, in view of the fact that it was charged that he was an intentional tortfeasor. This court noted that it had already been decided that the basic purpose of the Workmen's Compensation Act, to place the costs of industrial accidents upon industry, prohibited an action by an employee under the Act against a co-employee based upon the co-employee's negligence in the course of employment. (Chmelik v. Vana (1964), 31 Ill.2d 272; Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill.2d 618.) The bar also applied to actions for wilful and wanton negligence. (Sjostrom v. Sproule (1965), 33 Ill.2d 40 (the facts are set out at 49 Ill. App.2d 451 and 34 Ill. App.2d ...

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