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03/17/88 Gerald Miller, v. Donald L. Miller

March 17, 1988

GERALD MILLER, PLAINTIFF-APPELLANT

v.

DONALD L. MILLER, D/B/A MILLER DRY WALL, DEFENDANT AND COUNTERDEFENDANT-APPELLEE (STEVE HORVE ET AL., D/B/A

SECTION 1(A)(3) OF THE ACT REQUIRES A CONTRACTOR TO MAKE A COMPENSATION PAYMENT WHEN THE SUBCONTRACTOR HAS NO WORKERS' COMPENSATION INSURANCE. (ILL. RE

v.

STAT. 1985, CH. 48, PAR. 138.1(A)(3).) SECTION 11 OF THE ACT PROVIDES:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Horve & Oleson Construction Company, Defendants

and Counterplaintiffs-Appellees)

521 N.E.2d 229, 167 Ill. App. 3d 176, 118 Ill. Dec. 161 1988.IL.382

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Plaintiff Gerald Miller filed a claim under the Illinois Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) against defendants Donald Miller, d/b/a Miller Dry Wall (subcontractor), and Steve Horve and Bud Oleson, d/b/a Horve and Oleson Construction Company (contractors), for injuries he received while hanging dry wall in a building being constructed by the defendant contractors. The parties entered into a lump sum settlement contract on April 21, 1986, and plaintiff received payments from both the contractors and the subcontractors. On June 5, 1986, plaintiff filed a common law negligence action and an action under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) against all defendants. The two counts directed against the subcontractor were dismissed pursuant to defendant's motion to dismiss, and judgment was entered on the two counts directed against the contractors pursuant to their motion for summary judgment. Plaintiff appeals both rulings. We affirm.

We note initially, defendants Horve and Oleson argue this court should dismiss the appeal, because plaintiff's brief failed to comply with Supreme Court Rules 341(e)(1) and 342(a). (107 Ill. 2d Rules 341(e)(1), 342(a).) Rule 341(e)(1) requires that the "Points and Authorities" section of the brief include a reference to the page of the brief on which each heading and authority appear (107 Ill. 2d R. 341(e)(1)). Rule 342(a) requires the appellant to include a copy of the judgment appealed from in the appendix to the brief. (107 Ill. 2d R. 342(a).) These rules should have been followed. We note, however, that the rules are not a limitation upon the jurisdiction of a court of review, but rather are an admonishment to the parties. (Brown v. Brown (1978), 62 Ill. App. 3d 328, 332, 379 N.E.2d 634, 637.) Because we are affirming the dismissal, we will not strike the brief because of its infirmities.

The basis for both the motion to dismiss and the motion for summary judgment was that plaintiff's exclusive remedy was under the Workers' Compensation Act, and since plaintiff received compensation under that Act, he was barred from further action against defendants.

Section 5(a) of the Workers' Compensation Act 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." (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a).)

"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. 1985, ch. 48, par. 138.11.

At a hearing on the motion for summary judgment, the facts presented to the court included: (1) the allegations in the complaint; (2) plaintiff's response to defendants' request to admit facts or genuineness of ...


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