APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
539 N.E.2d 364, 183 Ill. App. 3d 746, 132 Ill. Dec. 54 1989.IL.772
Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Plaintiff Thomas J. Villa appeals from entry of summary judgment in favor of defendant, Arthur Rubloff & Company of Illinois (Rubloff). The record indicates that in 1981, while employed by Evergreen Plaza Associates (Evergreen Plaza) as a security guard for its shopping center, plaintiff suffered permanent injury to his left hand after he fell on a staircase.
Evergreen Plaza, a limited partnership, and its insurer entered into a workers' compensation settlement with plaintiff. Rubloff, a corporation engaged in managing commercial, industrial, office, and residential properties, was not a party to the workers' compensation proceedings. Subsequent to his settlement, plaintiff filed a common law negligence action against Rubloff. Rubloff moved for summary judgment claiming that as an agent of plaintiff's employer, it is entitled to immunity under the exclusivity provision of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a)).
Prior to plaintiff's accident, Rubloff and Evergreen Plaza had entered into a management agreement under which Rubloff would manage the shopping center as an agent for the owner, Evergreen Plaza. Rubloff was authorized to lease (with Evergreen Plaza's prior written approval of each lease) and collect rentals; to employ, discharge, and pay all employees necessary for the care, management, or operation of the property, with such expenses being charged to Evergreen Plaza; to make ordinary repairs and necessary purchases; and to pay utilities and other necessaries from the collected proceeds.
Evergreen Plaza was responsible for all insurance coverage for itself and Rubloff, including workers' compensation, liability, and indemnification policies. Rubloff was not required to advance any funds for management purposes and, if it did, was entitled to interest thereon. The agent was also bound to follow the accounting procedures submitted by Evergreen Plaza's accountant. The owner was obligated to provide office space for management purposes and to pay for supplies, utilities, and management staff salaries. Rubloff, at its own expense, was required to hire a leasing solicitor. For these and other detailed services, Rubloff received a yearly management fee of $75,000 plus a commission for new leases at 40% of the agent's prevailing rate.
The sole issue in this appeal is whether Rubloff is an "agent" within the purview of the exclusive remedy clause of the Act, which provides:
"(a) 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 . . . is available to any employee who is covered by the provisions of this Act . . .." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).
Plaintiff claims that the word "agent" in this provision does not include a management company such as Rubloff because such a meaning would grant immunity to all subcontractors. He further contends that "agent" has been judicially limited to members of a joint venture or partnership. (See, e.g., Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313.) In essence, plaintiff argues that since Rubloff is an entity separate and distinct from the limited partnership of Evergreen Plaza, it is not an agent and is subject to a common law action. According to plaintiff, "Illinois law holds that immunity bestowed to 'agents' stems from membership in the employer organization which is required to pay compensation under the act."
Ordinarily the question of whether a relationship is that of agent or independent contractor is a question of fact, unless the relationship is so clear as to be indisputable. (Perkinson v. Manion (1987), 163 Ill. App. 3d 262.) However, in the present case, plaintiff in his complaint labelled Rubloff as the managing agent of Evergreen Plaza and, further, stated in oral arguments before the trial court, that although Rubloff could be considered an agent in the traditional sense of the word, it was not an agent within the meaning of section 5(a) of the Act. Plaintiff's contention that Rubloff was not an agent at all, but was instead an independent contractor, was first mentioned in his appellate reply brief. In light of his arguments in the trial court, the issue of agency becomes one of law, i.e., whether the relationship between Rubloff and Evergreen Plaza is one that is included in section 5(a), thus barring a common law negligence suit against agent Rubloff by an injured employee of the principal, Evergreen Plaza.
We agree with the trial court that Rubloff is an agent. We believe that one of the reasons there appears to be no Illinois case law on this precise issue is because there is no question that under the present circumstances, a property manager is clearly an agent for the property owner. Cases involving managing agents usually are concerned with the scope of the agent's authority; the fact of agency itself is not an issue. (See, e.g., Peoples Gas Light & Coke Co. v. Barrett (1983), 118 Ill. App. 3d 52 (management agent has inherent authority to have gas service installed); The Roscoe Co. v. Lewis University, College of Law (1979), 79 Ill. App. 3d 1098 (no dispute that corporation hired to operate and ...