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09/08/89 Betty Mijatov, v. Franklin Graves

September 8, 1989

BETTY MIJATOV, PLAINTIFF-APPELLANT

v.

FRANKLIN GRAVES, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 809, 188 Ill. App. 3d 792, 136 Ill. Dec. 123 1989.IL.1406

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

Rehearing Denied October 27, 1989.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, Betty Mijatov, appeals from a summary judgment entered in the circuit court of Lake County, in favor of defendant, Franklin Graves. Plaintiff raises one issue on appeal: whether an employee who has entered into a lump-sum settlement agreement of a worker's compensation claim may recover damages from a co-worker in a common-law tort suit.

Plaintiff filed a three-count complaint alleging that defendant and plaintiff were employed by the Illinois Tollway Authority (Tollway Authority) and that while they were at work, defendant kicked plaintiff, injuring her. Count I alleged that the act was intentional; count II alleged that it was willful and wanton; and count III alleged that it was negligently committed.

Defendant filed a motion for summary judgment on the basis that the incident occurred while plaintiff and defendant were on a paid break; that plaintiff was in the course of her employment at the time the incident occurred; and that plaintiff filed for and collected worker's compensation as a result of her injury. Defendant argued that plaintiff was precluded from suing for civil damages since plaintiff had already collected compensation for her injury under the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). Defendant submitted excerpts from plaintiff's discovery deposition in which she admitted that she filed the worker's compensation claim in the belief that the injury occurred in the scope of her employment and that she recovered $4,000 from worker's compensation. Defendant also submitted a copy of the settlement agreement entered into between plaintiff and the Tollway Authority. The terms of the settlement provided:

"Respondent expressly denied that the Petitioner was injured while working for Respondent on April 24, 1986. In order to forsake further litigation, Respondent offers to pay and Petitioner agrees to accept the sum of $4,000.00 in full and final settlement of all claims relative to an alleged injury of April 24, 1986. Petitioner expressly waives review under Section 19(h) and 8(a) of the Illinois Workmen's Compensation Act."

In her response to the motion, plaintiff argued that her claim was not barred because the Tollway Authority denied that the injury arose in the course of her employment. Plaintiff also argued that her claim should be allowed because she settled for less than her actual medical expenses and was therefore never compensated by the Tollway Authority for her injury. Plaintiff asserted that there was a genuine issue of material fact regarding whether the injury arose out of the course of her employment. The circuit court granted defendant's motion, and plaintiff timely filed this appeal.

Summary judgment should be granted when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c).) In deciding a summary judgment motion, the court must construe the pleadings, depositions, and affidavits liberally in favor of the opponent and strictly against the movant. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177.) Summary judgment is an expeditious method of disposing of a lawsuit and should only be allowed when the right of the party moving for summary judgment is free from doubt. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 141.) Although a plaintiff has an affirmative duty to present evidence establishing a cause of action when the defendant moves for summary judgment, the plaintiff is not required to prove his case at that stage. Knief v. Sotos (1989), 181 Ill. App. 3d 959, 963.

Plaintiff contends on appeal that there is a genuine issue of material fact as to whether she was in the course of her employment when defendant kicked her. An employee who files a claim under the Workers' Compensation Act (Act) is limited by sections 5(a) and 11 of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.5(a), 138.11) to the recovery available under the Act. Section 5(a) of the Act provides in part:

"No common law or statutory right to recover damages from the employer, his insurer, his broker, . . . 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 ...


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