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03/09/88 Commonwealth Edison v. the Industrial Commission

March 9, 1988

COMMONWEALTH EDISON COMPANY ET AL., APPELLANTS AND CROSS-APPELLEES

v.

THE INDUSTRIAL COMMISSION ET AL. (R. GINGERICH & COMPANY, APPELLEE (ROBERT ROSS, APPELLEE AND CROSS-APPELLANT))



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

521 N.E.2d 159, 167 Ill. App. 3d 229, 118 Ill. Dec. 91 1988.IL.321

Appeal from the Circuit Court of Tazewell County; the Hon. Bruce W. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. BARRY, P.J., and McNAMARA, McCULLOUGH, and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The Industrial Commission (Commission) found that the plaintiffs, Commonwealth Edison Company and Schneider, Inc. (Schneider), were borrowing employers under section 1(a)(4) of the Illinois Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(a)(4)) and were required to reimburse the defendant, R. Gingerich & Company (Gingerich) for expenses incurred when defendant, Robert Ross (Ross), an employee of Gingerich, was injured in the course of his employment. The circuit court confirmed the Commission's finding except for the award of attorney fees. On appeal, the plaintiffs contend that the Commission's finding that the plaintiffs were borrowing employers is contrary to the law and against the manifest weight of the evidence because an agreement to the contrary existed which negated the rule in section 1(a)(4) of the Act. Ross cross-appeals contending that Commonwealth Edison was not a borrowing employer under section 1(a)(4) of the Act. We affirm.

Gingerich and Schneider entered into an agreement whereby the defendant agreed to furnish heavy equipment and operators to Schneider for construction work at Commonwealth Edison's Powerton Station. Gingerich's rental rate included fuel and maintenance costs for operating the Equipment, and the defendant was responsible for carrying property insurance, liability insurance, and workers' compensation insurance on the heavy equipment.

Each week Gingerich would send Schneider a handwritten invoice for the appropriate billing period. After receiving Gingerich's weekly invoice, Schneider would issue a purchase order which, among other things, stated:

"Liability: Seller agrees to defend and hold purchaser and its customers and the users of the goods provided herein harmless against all loss, expense, and damages arising from bodily injury to any person, including death resulting therefrom, and damage to property caused by any defective products supplied hereunder by the negligence or by the willful acts of seller, its agents or employees engaged in the manufacture, installation, delivery, erection, repair or operation of any equipment or goods covered by this order."

It is unclear whether the parties engaged in a detailed Discussion of this particular clause or any other part of the purchase order. At the arbitration hearing, Gingerich admitted that it had discussed the terms of the rental agreement with Schneider.

Commonwealth Edison, as a self-insurer, sent a letter to the Commission's self-insurance supervisor. In the relevant part, the letter stated:

"We are currently performing certain maintenance and repair work at our Powerton Station, Pekin, Illinois. As part of this job it is our desire and intention to guarantee the obligation of our contractors working at the Powerton Station, to pay Worker Compensation benefits.

Accordingly, I am attaching our guarantee agreement and questionnaire for Schneider, Inc., . . . who we plan to cover beginning October 8, 1981."

On July 30, 1982, while Ross was attempting to repair an outrigger leg, he was severely injured when the crane's boom struck a power line. Gingerich paid $29,850 for Ross' temporary total disability and approximately $62,900 for Ross's medical expenses. Gingerich sought ...


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