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03/25/88 Paul Lagrassa, v. Louis Panozzo

March 25, 1988





522 N.E.2d 752, 168 Ill. App. 3d 355, 119 Ill. Dec. 90 1988.IL.428

Appeal from the Circuit Court of Cook County; the Hon. Earl Arkiss, Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.


Defendant, Louis Panozzo, Sr., appeals from a judgment of the circuit court of Cook County in favor of plaintiff, Paul LaGrassa, based upon an Industrial Commission award entered pursuant to section 19(g) of the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(g)), and the denial of his motion to dismiss the action. On appeal, defendant contends that: (1) plaintiff, "having elected one remedy [a common law negligence action] . . . may not seek another [an action filed pursuant to the Act]" and his filing of both actions constituted forum shopping; and (2) the trial court erred in failing to apply the doctrine of res judicata to bar the action from which defendant appeals. For the reasons set forth below, we affirm.

In 1984, defendant leased a small retail store in a building owned by him to John Herschel, who planned to go into business with plaintiff. In preparing the store for business, plaintiff was installing some paneling when defendant came into the store and offered to help him. While plaintiff was holding a piece of paneling, an electric saw which defendant was operating "moved forward" and the blade severed certain portions of plaintiff's fingers. Plaintiff was taken to a hospital and underwent surgery on his fingers. Subsequently, plaintiff and defendant entered into an agreement whereby defendant agreed to pay plaintiff $3,000 as compensation for any negligence on his part and plaintiff executed a release for same.

Notwithstanding this agreement, plaintiff later filed a claim with the Industrial Commission alleging that an employment relationship existed between the parties at the time of his injury. While that action was pending, plaintiff also filed a common law negligence action against defendant in the circuit court of Cook County, seeking damages in excess of $15,000.

On June 19, 1985, an ex parte hearing was held before an arbitrator designated by the Commission, defendant's counsel having failed to appear or defend. After the arbitrator filed his decision with the Commission on June 25, defendant sought a review of the decision before the Commission, alleging denial of due process. The Commission subsequently conducted a hearing and defendant argued before it that plaintiff's settlement release barred his action under the Act. On September 18, 1986, the Commission entered its decision in plaintiff's favor, but allowed defendant a credit of $3,000 against its award to plaintiff. The Commission's decision was based on the following findings:

"1. . . . Respondent [defendant] had notice of the hearing on Arbitration and an opportunity to be heard and therefore was not denied due process. Because Respondent failed to show good cause for his failure to appear and defend his case, the Commission relies on Petitioner's [plaintiff's] unrebutted evidence in deciding this case."

The Commission further found, contrary to defendant's brief explanation of the parties' relationship described in his appellate brief, as follows:

"2. On February 24, 1980, Petitioner was a 34 year old laborer working as part of a crew remodeling buildings for Respondent. Respondent was engaged in the business of purchasing apartment buildings, repairing and remodeling them, and leasing them out. Respondent paid Petitioner $20.00 per day or $100.00 per week and a room in which to live. Based on Petitioner's unrebutted testimony, the Commission finds that an employment relationship existed between Petitioner and Respondent on the date of the accident." (Emphasis added.)

Defendant did not pursue an appeal of the Commission's decision within the statutory 20-day period after receipt of notice of the decision, and the Commission subsequently certified a true and correct copy of its decision. On October 17, plaintiff filed an application for entry of judgment in accordance with the decision of the Commission in the circuit court. On October 21, the court in which plaintiff's negligence action was pending (Judge Thomas Rakowski presiding) granted a motion filed by defendant to dismiss the action, finding that "the release attached to said motion is a full release barring the instant case and injury." Subsequently, on December 1, a hearing on plaintiff's application for entry of judgment was held (Judge Earl Arkiss presiding) at which time the court heard arguments of counsel and also considered a motion to dismiss filed by defendant based upon the ground that Judge Rakowski's order dismissing plaintiff's negligence action was a bar to the case before it. On December 23, Judge Arkiss denied defendant's motion to dismiss and entered judgment in favor of plaintiff. This appeal followed.

On appeal, defendant argues in his appellate brief that plaintiff's filing of actions with the Industrial Commission and in the circuit court constituted forum shopping, since plaintiff was pursuing two remedies inconsistent with each other (i.e., in his action before the Commission plaintiff stated he was an employee of defendant, whereas in the action filed in the circuit court, he "impliedly" asserted he was not an employee of defendant). Defendant also argues that res judicata and/or "estoppel by verdict" barred plaintiff's action for entry of judgment on the Commission award. During oral argument, however, defendant focused his argument on the additional contention that ...

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