Appeal from the Circuit Court of Cook County; the Hon. Myron
Gomberg, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Jane Bartholomew brought this action against defendant, Lavert Crockett, for personal injuries sustained as a result of a motor vehicle collision and against her former attorneys, Paul Caghan, David Wittenberg and Wittenberg & Caghan, Ltd. (attorneys), for malpractice in handling the aforementioned claim. Appellant's two-count amended complaint was dismissed as to all defendants.
The amended complaint alleges that on June 2, 1980, Bartholomew was driving her automobile in the course of her employment as a nurse inspector for the Illinois Department of Public Health, going to one of the nursing homes where she was assigned. She was proceeding in a westerly direction on Taylor Street in Chicago. She had come to a complete stop behind traffic to allow another vehicle to make a left turn when her car was struck from the rear by a motor vehicle driven by Crockett. At the time of the collision, Crockett was operating a State-owned vehicle in the course of his employment as a truck driver for the University of Illinois. As a result of the collision, Bartholomew alleges that her car was damaged and that she sustained extensive injuries.
The amended complaint further alleges that on or about June 3, 1980, Bartholomew retained David Wittenberg and Paul Caghan of the law firm of Wittenberg and Caghan, Ltd., to represent her in all claims arising out of the above-mentioned occurrence, against the State of Illinois as her employer for workers' compensation and against Crockett and his employer for his negligence. Thereafter Bartholomew entered into two retainer agreements which provided for payment to the attorneys of 20% of the award from the Industrial Commission for workers' compensation claims and for payment of 40% of the recovery on all other claims.
On January 8, 1981, the attorneys filed a statutory notice of claim for personal injuries against the State of Illinois in the Illinois Court of Claims. This claim was filed late, more than eight days beyond the time allowed by statute, and named the State as the defendant instead of the Board of Trustees of the University of Illinois. The attorneys later filed a complaint in the court of claims for property damages only, identifying Crockett as an agent of the State. Further, the attorneys filed a workers' compensation claim against the State of Illinois as Bartholomew's employer. They settled her property damage claim against the State of Illinois, instructing her to execute a general release in favor of the State and Crockett.
Subsequently, Bartholomew became dissatisfied with the attorneys' overall performance and discharged them upon learning that they had filed an untimely statutory notice of claim. She then retained the attorney who is representing her in this appeal.
Bartholomew's amended complaint in count I alleged that Crockett was negligent in speeding, failing to retain control of his vehicle, and otherwise operating his vehicle in a negligent manner. In count II of her complaint, she charged that the appellee attorneys failed to file a proper notice of claim with the court of claims, negligently advised plaintiff to sign a general release, and improperly named the State of Illinois rather than the Board of Trustees of the University of Illinois as the employer of Crockett.
The trial judge granted Crockett's motion to dismiss on the basis that Bartholomew and Crockett were co-employees, each acting within the scope of his employment at the time of the incident, and that the action is barred by section 5(a) of the Workers' Compensation Act. (Ill. Rev. Stat. 1979, ch. 48, par. 138.5). The judge granted the attorneys' motion on the grounds that plaintiff failed to state a cause of action for malpractice because she had suffered no damages as a result of the alleged negligence of the attorneys. This appeal followed.
Bartholomew argues that the trial court erred in dismissing her claims because (1) the Board of Trustees of the University of Illinois is separate and distinct from the State of Illinois for purposes of section 5(a) of the Workers' Compensation Act, (2) an employee of the Board is not immune from claims based on his negligent operation of a motor vehicle because the injured party is employed by the State of Illinois, and (3) she stated a cause of action against her former attorneys for legal malpractice.
The first issue to be considered is whether the Board of Trustees of the University of Illinois is a legal persona separate from the State of Illinois. We note that at the time of the incident, both Bartholomew and Crockett were acting in the scope of their employment. Bartholomew contends that Crockett is not an employee of the State because the Board is a legal entity separate and distinct from the State of Illinois, and that the Board and the State are not the same employer for purposes of section 5(a) of the Workers' Compensation Act. She therefore asserts that Crockett is not immune from suit on a common law negligence claim by her. We agree.
• 1 Section 5(a) of the Workers' Compensation Act provides in pertinent part:
"Sec. 5. (a) No common law or statutory right to recover damages from the employer, * * * or employees * * * 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. 1979, ch. 48, par. 138.5(a).)
The Illinois Supreme Court has construed this section to mean a common law action against a co-employee is precluded if the parties come within the Act and the accidental injury arose out of and in the course of the employment. Chmelik v. Vana (1964), 31 Ill.2d 272, 201 N.E.2d 434; Brooks v. Carter (1981), 102 Ill. App.3d 635, 430 N.E.2d 566.
It is uncontested that Bartholomew is an employee of the State of Illinois. The question here is whether the Board of Trustees of the University of Illinois, which employed Crockett, can be considered the State of Illinois under section 5(a) of the Workers' Compensation Act. On numerous occasions, Illinois courts have discussed the status of the university in relation to the State. The Board has been described as a public corporation, endowed with all the powers and duties of public corporations, and was established by the legislature for the purpose of conducting and operating ...