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J.l. Simmons Ex Rel. Hartf'd v. Firestone





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. James Bumgarner, Judge, presiding.


Rehearing denied September 27, 1985.

John Boone (Boone), an employee of J.L. Simmons Company, Inc. (Simmons), was working for Simmons as an industrial carpenter at the Firestone Tire and Rubber Company (Firestone) plant in Decatur when he was injured while attempting to install a wooden beam at the plant. Boone filed suit in the circuit court of Peoria County against Firestone. He alleged that while lifting the beam he stepped on a strip of visqueen, a plastic liner used at the Firestone plant to separate raw slabs of rubber, slipped and fell along with the beam to the ground, permanently injuring his back. Firestone answered that the accident occurred not as a result of the visqueen but because Simmons supplied an insufficient number of men to carry the beam. It claimed that Boone twisted his back and was injured because of the great weight of the beam he was trying to carry.

Based on that allegation Firestone brought a third-party action against Simmons for indemnity or contribution. Simmons had previously established a statutory lien (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b)) against any damages awarded to Boone up to the amount of a compensation settlement agreement he entered into with Simmons. That agreement, besides settling on a sum compensating Boone for his injury, entitled Simmons to (i) reimbursement up to the settlement amount from any awards which might be granted against Firestone and (ii) complete indemnification from Boone for any additional liability imposed on Simmons by way of contribution to Firestone. When Simmons was brought into the action as a third-party defendant, it requested that it be aligned along with Boone as a plaintiff because its interest was the same as his, especially in view of their agreement and also because their explanation of how the accident occurred was identical. Boone had no objection to the request, and, notwithstanding Firestone's objection, the Simmons motion was granted and the parties were realigned reflecting their true positions with respect to how the accident took place. Firestone then retitled its third-party action as a counterclaim. Following trial, the jury returned a verdict for Boone in the amount of $501,000. The jury also found Boone to be comparatively negligent to the extent of 33 1/3%. Finally, the jury returned a finding that Simmons was required to contribute 50% to the amount Firestone owed Boone on account of its own negligence.

On appeal, the judgment in favor of Boone was affirmed but Firestone's right to contribution was reversed and remanded to the circuit court for a new trial on the contribution issue (126 Ill. App.3d 859). The appellate court determined that the jury instruction concerning contribution allowed for a double reduction for the same acts and was therefore erroneous. We allowed Firestone's petition for leave to appeal (94 Ill.2d R. 315(a)), and we now affirm the appellate court's decision.

Firestone first contends that the realignment of Simmons from a third-party defendant to a coplaintiff both violated the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) (the Act) and allowed Simmons trial advantages which it would not have enjoyed as a third-party defendant. It relies on section 5(b) of the Act, which, relevant to this appeal, provides:

"In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee * * *." (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).)

Firestone contends that the plain language of the Act precludes Simmons joinder as a coplaintiff because Boone himself brought an action against Firestone prior to the three-month period prescribed by the Act.

Section 5(b) does not explicitly apply to the situation presented by this appeal. The section forbids the filing of a suit by the employer prior to three months before the expiration of the limitations period. Simmons, though, did not file the original action. Instead, Boone filed first against Firestone, and later developments brought Simmons in as a party to the action on the motion of Firestone. Therefore, Simmons' alignment as a plaintiff did not violate the express language of section 5(b).

We have been unable to find any case which has directly considered this problem. Absent controlling precedent and explicit statutory language, we must look to the intent of the legislature when it passed the Act, with special attention to that portion of section 5(b) which forbids an employer from bringing the original action prior to 21 months following the accident. (See, e.g., People v. Boykin (1983), 94 Ill.2d 138, 141.) The Act is primarily meant to provide compensation for employees who are injured while working, regardless of fault. "The object of the act is the allowance of compensation for accidental injuries to employees as promptly and cheaply as may be." (Liquid Carbonic Co. v. Industrial Com. (1933), 352 Ill. 405, 410.) An employer, then, may be required to pay an injured employee even though it was without fault. Section 5(b) allows both the employer and the employee an opportunity to reach the true offender while preventing the employee from obtaining a double recovery. See, e.g., Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 7.

Section 5(b) replaced the common law right of the employer to reach a negligent third party for money it was required to pay in response to a workers' compensation claim.

"In the absence of a valid statute creating the right, a non-negligent employer, who has been required to pay workmen's compensation to an employee injured by the negligence of a third-party tort-feasor, has a common law right of subrogation to the claim of the employee against the third-party tort-feasor for reimbursement of the amount of workmen's compensation paid to the employee. (Geneva Construction Co. v. Martin Transfer and Storage Co. 4 Ill.2d 273.) In the case cited we also noted that the employer's common-law right of subrogation had been supplanted by a mode of statutory subrogation * * *. Thus, the status of the non-negligent employer is the same under section 5(b) as it would have been under the common law, namely, subrogee to the claim of his employee against the third-party tort-feasor." (McCormick v. Zander Reum Co. (1962), 25 Ill.2d 241, 244.)

The employer had and continues to have a right to the money it pays in workers' compensation if it was not ...

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