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03/12/87 Marjorie Ocasek, Special v. Laura Krass

March 12, 1987

MARJORIE OCASEK, SPECIAL ADM'R OF THE ESTATE OF LILY KRASS, DECEASED, PLAINTIFF-APPELLEE

v.

LAURA KRASS, SPECIAL ADM'R OF THE ESTATE OF ALBERT KRASS, DECEASED, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

505 N.E.2d 1258, 153 Ill. App. 3d 215, 106 Ill. Dec. 467 1987.IL.289

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

Justice Jiganti delivered the opinion of the court. Johnson and Linn, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

On January 16, 1980, an airplane operated by Albert Krass crashed at the Lake County airport, killing Albert Krass and his wife Lily Krass. Plaintiff, Marjorie Ocasek, special administrator of the estate of Lily Krass, filed a wrongful-death action against defendant Laura Krass, special administrator of the estate of Albert Krass, alleging that Albert Krass' negligent operation of the airplane was the proximate cause of the fatal crash. The defendant answered, raising as an affirmative defense the exclusive-remedy provision of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a)) on the grounds that Albert Krass was Lily Krass' employer and the crash occurred on their return from a business trip. The trial court granted the plaintiff's motion for summary judgment on the affirmative defense.

The record shows that Albert Krass was the general partner of a limited partnership doing business as Chilo Manufacturing and Plating Company, which manufactures metal forms for the lamp and shade industry. Lily Krass was a salaried employee of Chilo, and she and Albert Krass were the principal salespersons. On the date of the airplane crash, Lily and Albert were returning home from a trade show in Dallas, Texas. Although the plaintiff maintains on appeal that this was a combined business and pleasure trip, she stated in her motion to dismiss the defendant's affirmative defense that the crash occurred while Lily was "in the course and scope of her employment."

The record further reveals that Albert Krass was a licensed pilot and that he was the owner of the airplane. However, Chilo reimbursed him for the fuel used in the airplane when he flew it on company business. In her motion to dismiss the affirmative defenses, the plaintiff alleged that an insurance policy purchased by Albert Krass provided coverage for "liability for personal injury to any employee of the insured arising out of and in the course of his employment by the insured." The motion also contained an argument that the dual-capacity doctrine was applicable on the basis that Albert Krass was being sued in his capacity as airplane pilot rather than in his capacity as Lily Krass' employer.

The defendant contends on appeal that the plaintiff's lawsuit is barred by the exclusive-remedy provision of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a)) and that the trial court's reliance on the dual-capacity doctrine was erroneous.

The Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138 et seq.) was enacted to abrogate the system of common law rights and liabilities which previously governed an injured employee's ability to recover against his employer. (Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326, 447 N.E.2d 786, 787.) The policy of the Act is to provide certainty of remedy gained in return for limiting the liability of the employer. (95 Ill. 2d 322, 447 N.E.2d 786.) To effectuate this policy, the Act provides that "the statutory remedies under it shall serve as the employee's exclusive remedy if he sustains a compensable injury." (95 Ill. 2d 322, 326, 447 N.E.2d 786, 787; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 317, 396 N.E.2d 524, 526.) Thus, section 5(a) of the Act states in pertinent part:

"No common law or statutory right to recover damages from the employer . . . 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. 1985, ch. 48, par. 138.5(a).

Illinois courts have recognized a limited exception to the exclusive-remedy provision of the Act. This exception is known as the dual-capacity doctrine and provides that "an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer." (2A A. Larson, Workmen's Compensation sec. 72.81, at 14 -- 112 (1986).) Professor Larson cautions, however, that a mere separate theory of liability against the same legal person as the employer is not a true basis for the dual-capacity doctrine. Rather, the doctrine requires a distinct separate legal persona so "completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person." 2A A. Larson, Workmen's Compensation sec. 72.81, at 14 -- 229 (1986).

In its decisions involving application of the dual-capacity doctrine, the Illinois Supreme Court has cited Professor Larson with approval in fashioning what appears to be a two-part test. First, as noted in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 319, 396 N.E.2d 524, 527, the plaintiff attempting to establish a dual capacity must show that the second capacity "generates obligations unrelated to those flowing from the first, that of employer." Second, as the court stated in Sharp v. Gallagher (1983), 95 Ill. 2d 322, 328, 447 N.E.2d 786, 788, the plaintiff must show that the employer was acting as a "distinct separate legal persona."

Applying these principles to the case at bar, we find that the plaintiff has failed to meet either of the requirements necessary to avail herself of the dual-capacity doctrine. In attempting to establish that Albert Krass had a legal persona separate and distinct from his role as general partner in Chilo, the plaintiff argues that "Albert, as a pilot, was operating as an individual, with no connection to Chilo." In our view, the mere fact that the employer, as an individual, pilots an airplane, drives a car, or performs other such functions which impose upon him the duty to ...


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