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Unger v. Continental Assurance Co.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. John w. Gustafson, Judge, presiding.


Plaintiff, John W. Unger, M.D., filed a complaint in the circuit court of Cook County, setting forth a common law medical malpractice claim against defendant Carl R. Hines, M.D., and defendant Continental Assurance Company (CAC), the alleged employer of Hines. Plaintiff filed an amended complaint in which he added Continental Casualty Company (CCC) as a defendant, maintaining that he and Dr. Hines were employed by both CAC and CCC. The trial court ordered that plaintiff's amended complaint be stricken and CCC dismissed as a defendant, finding that plaintiff's failure to name CCC as a defendant, within the applicable statute of limitations, was not inadvertent. (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d).) Further, the trial court granted summary judgment in favor of CAC on the ground that it was not the employer of Dr. Hines. Finally, the trial court found that the exclusive-remedy provision of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) barred plaintiff's cause of action and accordingly ordered that summary judgment be entered in favor of Dr. Hines. In affirming the decision of the trial court, the appellate court adopted the rationale of the trial court, holding that plaintiff's claims were barred by the exclusive-remedy provision of the Act. (122 Ill. App.3d 376, 378.) The court found it unnecessary, therefore, to consider the propriety of the trial court's orders dismissing CCC as a defendant and granting summary judgment in favor of CAC. (122 Ill. App.3d 376, 380.) We granted the plaintiff's petition for leave to appeal. 87 Ill.2d R. 315(a).

The sole issue before this court, as raised in plaintiff's petition for leave to appeal and brief, is whether, under the facts of this case, the exclusive-remedy provision of the Act bars plaintiff's common law malpractice action.

Plaintiff's complaint states that in March of 1977, while in the employ of CAC, he was examined by the defendant Dr. Hines, also an employee of CAC. During that examination a chest X ray was taken which revealed a malignant mass lesion. This lesion was not diagnosed, however, until another chest X ray was taken during a subsequent examination in November of 1978, which was also performed by Dr. Hines. Plaintiff maintains that the careless acts or omissions of the defendants caused him to suffer severe and permanent injuries, necessitating the expenditure of large sums of money for medical care, surgery and treatment and causing him to experience great physical and mental pain. Plaintiff seeks damages to compensate him as a result of the defendants' alleged negligence.

In its answer to the original complaint, CAC denied that it operated the CNA Medical Center or that plaintiff and Dr. Hines were its employees. Dr. Hines' answer stated that he and the plaintiff were employed by CCC and that plaintiff's alleged injuries arose out of and in the course of that employment. As such, the exclusive-remedy provision of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) was set forth as an affirmative defense.

CCC moved to dismiss the claim asserted against it in the amended complaint, contending that plaintiff's failure to include it as a party defendant until after the statute of limitations period had elapsed was not inadvertent and, thus, plaintiff could not claim the protection of section 2-616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-616(d)). Pursuant to this provision, a cause of action against an individual not originally named as a defendant will not be barred due to the running of a statute of limitations if several terms and provisions are satisfied, including the requirement that the failure to join the person was inadvertent. CCC maintained that the plaintiff knew or should have known that he was an employee of CCC prior to the expiration of the statute of limitations. Specifically CCC referred to plaintiff's discovery deposition, wherein he stated that over the last several years his paychecks had been issued by CCC.

In response to CCC's motion to dismiss, plaintiff argued that his failure to include CCC in his original complaint was inadvertent. Although CAC is a wholly owned subsidiary of CCC, plaintiff maintained that he was unaware of this fact. In his discovery deposition, plaintiff stated that both CAC and CCC were subsidiaries of CNA. In addition, plaintiff was told, at the time he was hired, that he was to be working for CAC, and his duties had not changed since he started with CAC, 15 1/2 years earlier. Further, plaintiff received claim forms from CNA for his medical treatment which were titled "CNA; Continental Assurance Company." As such, plaintiff's position was that his confusion was caused by the corporate structure of the conglomerate, rendering his failure to name CCC inadvertent.

On the same day that CCC's motion to dismiss was filed, defendant Hines filed a motion for summary judgment, invoking the exclusive-remedy provision of the Act as the basis of his motion. In support of this motion, excerpts from plaintiff's discovery deposition were included. There, plaintiff's statements indicate that the company made an annual physical examination available, at company expense, and advised everyone to take advantage of this opportunity. It appears that officially the examination was not mandatory. In 1974, however, in response to plaintiff's inquiry as to the necessity of having a company physical, plaintiff was informed by his superior that he would be fired if he did not have the examination. Plaintiff testified that he continued to have the examination to fulfill this company requirement and also because of his belief in the need for annual examinations for preventative purposes. Further, plaintiff testified that he would consult with his personal physician rather than a physician affiliated with the CNA Medical Center if he had any illness requiring medical care.

Defendant Hines maintains that the examination conducted in 1977 was a requirement of plaintiff's continuing employment with CCC. Thus, any injury sustained as a result of his failure to diagnose plaintiff's cancerous lesion would arise out of and in the course of plaintiff's employment. Accordingly, plaintiff's only recourse would be through the workers' compensation system. Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).

Section 5(a) of the Act bars a lawsuit by one employee against a co-employee (or employer) for an injury sustained in the course of employment. Specifically, section 5(a) provides:

"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." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a).)

Further, section 11 of the Act provides:

"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.

Thus, an employee is precluded from maintaining a common law action against a co-employee only if the injured employee was "engaged in the line of his duty" at the time the injury was sustained. The "line of duty" test has been interpreted by this court in the exact manner as the general test of compensability under the Act. (Sjostrom v. Sproule (1965), 33 Ill.2d 40, 43; Chmelik v. Vana (1964), 31 Ill.2d 272, 274; Christian v. Chicago & Illinois Midland Ry. Co. (1952), 412 Ill. ...

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