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Sims v. Teepak

OPINION FILED MAY 29, 1986.

EDWARD SIMS, PLAINTIFF-APPELLANT,

v.

TEEPAK, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

In this appeal we are asked to construe section 2-621 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1983, ch. 110, par. 2-621) where an employee who had already obtained a workers' compensation award filed a products liability action against his employer. That suit essentially sought to discover the manufacturer of the machine upon which he sustained his job-related injuries.

The plaintiff, Edward Sims, was injured on April 1, 1983, while operating a F.C. Evaporator machine at the defendant's Danville plant. He filed a claim pursuant to the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.), and received a lump-sum settlement as compensation for his injuries and time lost at work.

Subsequently, on February 19, 1985, the plaintiff brought an action sounding in products liability against his employer "pursuant to" section 2-621. Section 2-621 permits a "certifying defendant" who is not the manufacturer to be dismissed from a strict liability in tort action once that defendant has filed an affidavit identifying the actual manufacturer of the product which allegedly caused injury. Ill. Rev. Stat. 1983, ch. 110, pars. 2-621(a), (b).

The defendant responded to the complaint on May 8, 1985, by filing a motion to dismiss pursuant to section 2-619 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2-619). In its motion to dismiss, the defendant averred that it did not design, manufacture or sell the machine involved in the incident. In any event, according to the defendant, plaintiff had no cause of action against his employer because of the exclusive remedy provision of the Workers' Compensation Act. Ill. Rev. Stat. 1983, ch. 48, par. 138.5(a).

In the alternative, defendant answered that the cause should be dismissed pursuant to section 2-621. In compliance with that statute, the defendant attached the affidavit of Raymond D. Burtner, vice-president of Teepak, which certified the Whiting Corporation as designer of the machine. Burtner reiterated in his affidavit that plaintiff had already received a lump-sum settlement under the Act. The affidavit further stated the defendant had done nothing to alter the machine except install an electric motor and metal shield.

Plaintiff thereupon filed a motion to amend the complaint to add count II naming the Whiting Corporation as defendant. After a hearing to consider both motions before it, the trial court on October 11, 1985, granted the defendant's motion to dismiss and denied the plaintiff's motion to file an amendment to the complaint. The court found the plaintiff had no right to recover damages against his employer, given the exclusive remedy provision of the Act. As the plaintiff could not maintain that action, the court also found section 2-621 of the Code wholly inapplicable. In the absence of any valid cause of action, the court ruled that the plaintiff's motion to amend could not be granted.

Integral then to the resolution of this matter is an interpretation of section 2-621 of the Code under the facts as well as its interplay with section 5(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(a)). Section 2-621(a) states in part:

"Product liability actions. (a) In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 2-621(a).

Under section 2-621(b), once a plaintiff has filed a complaint against the manufacturer or manufacturers as disclosed, and once those parties have been required to answer or otherwise plead, "the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants." (Ill. Rev. Stat. 1983, ch. 110, par. 2-621(b).) This language makes dismissal of a "certifying defendant" mandatory when that party has complied with the requirements contained in subsections (a) and (b). However, even after such dismissal, a plaintiff may move to vacate the order of dismissal and reinstate the certifying defendant or defendants if the plaintiff can show any one of five delineated fact settings. Ill. Rev. Stat. 1983, ch. 110, pars. 2-621(b)(1) through (b)(5).

In considering the purpose of section 2-621, we note first that all persons in the distributive chain, including suppliers, distributors, wholesalers, and retailers, are liable for injuries resulting from a defective product in a products liability action. (Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 206, 454 N.E.2d 210, 216; Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill.2d 206, 214, 407 N.E.2d 32, 36.) Liability results regardless of whether any of these parties actually knew of the defect, contributed to the defect, or failed to discover the defect. Imposition of liability is justified on the grounds that the position of these parties in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 344, 247 N.E.2d 401, 403-04.) Thus, regardless of the nature of the commercial transaction, and even though it did not create the defect, a seller who puts a defective product into the stream of commerce runs the risk of being held strictly liable to an injured user. Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 454 N.E.2d 210; Crowe v. Public Building Com. (1978), 74 Ill.2d 10, 13, 383 N.E.2d 951.

Arguably in response, section 2-621 was enacted to allow sellers to opt out of such litigation by certifying the identity of the manufacturer of an allegedly defective product. Ostensibly, section 2-621 could also facilitate discovery of manufacturers where such are unknown to the injured user. The main thrust of the statute, however, remains that of a "seller's exception"; the seller may still be sued in the first instance, but may identify an upstream defendant (the manufacturer) and thus escape ultimate liability where the seller has done nothing to create or contribute to the defect.

In the matter before us now, however, it is not a seller that is being sued; rather, the action arises out of an injury incurred in an employment setting. Thus, the issue to be resolved is whether an employer may be sued under section 2-621 by an employee who wishes to determine the manufacturer of an allegedly defective product where that employee has already obtained a workers' compensation award. We think not.

• 1 Under section 5(a) of the Act, no common law or statutory right to recover damages from an employer, other than the statutory compensation provided therein, is available to an employee for injuries sustained during the course of employment. (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(a); Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill.2d 460, 150 N.E.2d 141.) This "exclusive remedy" provision is an essential element of the comprehensive workers' compensation scheme. The Act establishes a system of liability without fault while abrogating the common law defenses of contributory negligence, assumption of the risk, and the fellow-servant doctrine. In exchange, the Act requires an injured employee to give up certain elements of damages recoverable in common law or statutory actions by prohibiting these actions where injuries are received during the course of employment. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill.2d 460, 150 N.E.2d 141; Rosales v. Verson Allsteel Press Co. (1976), 41 Ill. App.3d 787, 354 N.E.2d 553.) The exclusive remedy provision is "part of the quid pro quo in ...


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