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03/06/89 William Parton, v. A.L. Randall Company

March 6, 1989





534 N.E.2d 1077, 180 Ill. App. 3d 856, 128 Ill. Dec. 632 1989.IL.277

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Judge, presiding.


JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.


Plaintiff, William Parton (Parton), appeals from an order of the circuit court of Lake County which dismissed his one-count complaint for retaliatory discharge against the defendant, A.L. Randall Company (Randall), pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) for failure to state a cause of action. In an order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), we reversed the dismissal on the ground that plaintiff's complaint claiming he was discharged in retaliation for seeking "just compensation" for his work-related injury stated a cause of action where one aspect of the just compensation was a claim for and the settlement of his claim for workers' compensation relying upon Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

Defendant filed a timely petition for rehearing contending that we misapprehended the issue raised by plaintiff-appellant in his brief and reply brief, that "plaintiff's complaint does not include an allegation of discharge for filing a workers' compensation claim," and that plaintiff's contention that he was seeking just compensation referred only to "the pursuit of a common-law suit for damages against a nonemployer tortfeasor."

There is no question but that plaintiff argued in his briefs in this case that the violation of a clearly mandated public policy necessary to support a cause of action for retaliatory discharge (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354) should be expanded to embrace the filing of the common-law negligence action against a nonemployer alleged to be at least partially liable for the plaintiff's injury. Plaintiff's rationale included the fact that such a common-law action is specifically recognized as not being prohibited by section 5(b) of the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)). Without question, plaintiff invited us in his briefs to undertake such a determination.

We declined, however, concluding instead that so long as the claim and settlement of his workers' compensation claim were part of the facts underlying his characterization of his conduct as seeking "just compensation," it was error to dismiss the complaint for failure to state a cause of action. Ill. Rev. Stat. 1985, ch. 110, par. 2-615(a).

Nonetheless, we granted defendant's petition for rehearing and ordered plaintiff's response in an effort to determine whether plaintiff's appeal intended to exclude his claim for workers' compensation from his definition of "just compensation" pursuant to defendant's characterization. Plaintiff filed a response but declined to rise to defendant's bait, relying instead on the arguments in his appellant's brief and reply brief.

We now withdraw the original order filed November 30, 1988, and submit this opinion as our Disposition of the appeal. As before, we reverse the judgment of the circuit court and remand the cause for further proceedings.

Plaintiff's complaint alleged that plaintiff, Parton, was employed by defendant, Randall, from approximately March 1984 to August 17, 1987. On July 3, 1984, plaintiff was severely injured while working in defendant's warehouse by coming in contact with an electrical power cord. He filed a workers' compensation claim against his employer. He also filed a common-law negligence action against Marsh Electric Company (Marsh), which had installed the electrical cord. Marsh filed a third-party complaint seeking contribution from plaintiff's employer, Randall. The common-law negligence action was reached for trial on July 20, 1987, and settled on July 23, 1987, along with Marsh's complaint for contribution against Parton and the workers' compensation claim and employer's lien. Plaintiff's complaint further alleged that plaintiff received $10,000 from Marsh in settlement of his common-law negligence action and $37,000 from his employer, Randall. On August 17, 1987, plaintiff was discharged by defendant Randall.

Plaintiff's complaint concluded by alleging that defendant had a duty to refrain from discharging plaintiff in retaliation for his seeking just compensation for injuries received on the job and that the discharge was the proximate cause of injury to the plaintiff for which he seeks compensatory damages in excess of $15,000 and punitive damages in the amount of $100,000.

Defendant Randall filed a section 2-615 motion to dismiss. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) Defendant contended that plaintiff did not allege that he was fired because he filed a workers' compensation claim but, rather, because he sought and obtained just compensation for his injuries. Defendant relied upon Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354, as authority for the proposition that not every constitutional or statutory right is protected by the tort of retaliatory discharge. In Kelso, the supreme court reiterated the standard that must be met to implicate the tort of retaliatory discharge, which is the violation of any clearly mandated public policy. Defendant ...

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