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01/28/94 DAVID FREDERICKS v. LIBERTY MUTUAL

January 28, 1994

DAVID FREDERICKS, PLAINTIFF-APPELLANT,
v.
LIBERTY MUTUAL INSURANCE CO., AND MCCARTHY BROTHERS CONSTRUCTION COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. No. 92-L-705. Honorable William B. Starnes, Judge Presiding.

Chapman, Welch, Maag

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

David Fredericks was employed by McCarthy Brothers Construction Company (McCarthy Brothers) as an ironworker on a project to renovate the Eads Bridge which spans the Mississippi River between Illinois and Missouri. Fredericks was injured on the job and brought this action alleging that at a prejob meeting between representatives of various trade unions, including the plaintiff's representatives from Ironworker's Locals 396 and 392 and representatives from McCarthy Brothers Construction Company, a binding contractual agreement was reached providing that any employee injury occurring during McCarthy Brothers' renovation of the bridge would fall within the scope of the Illinois Worker's Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1992)). Plaintiff alleged that he is a third-party beneficiary of this agreement and that McCarthy Brothers and its insurer, Liberty Mutual Insurance Company, wilfully breached the agreement by refusing to apply the provisions of the Illinois Act to his injury. Plaintiff requested the circuit court to order the defendants to apply the Illinois Act to the plaintiff's injury pursuant to the alleged agreement between plaintiff's union and McCarthy Brothers. Defendants filed a motion to dismiss the complaint based on the exclusivity provision of the Act. The circuit court ruled that it did not have subject matter jurisdiction to hear a dispute involving worker's compensation benefits, and the court granted defendant's motion to dismiss with prejudice. Fredericks appeals. We reverse.

The determinative issue on appeal is whether a common law action alleging a wilful breach of a contractual agreement is barred by the exclusivity provisions of the Illinois Worker's Compensation Act (820 ILCS 305/5(a), 305/11 (West 1992)).

The Act generally provides the exclusive remedy for work-related injuries. Section 5(a) of the Act states, in pertinent part, as follows:

"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." (Emphasis added.) (820 ILCS 305/5(a) (West 1992).)

The Act further provides in pertinent part:

"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 * * * ." (Emphasis added.) 820 ILCS 305/11 (West 1992).

It is well established in Illinois that to escape the exclusivity-of-remedy rule, plaintiff must prove the injury (1) was not accidental, (2) did not arise from his or her employment, (3) was not received during the course of employment, or (4) was noncompensable under the Act. ( Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 463, 564 N.E.2d 1222, 1226; Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198.) In addition, the broad immunity granted by the exclusive remedy rule may be overcome in actions involving intentional torts by the employer (see Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 564 N.E.2d 1222) or claims for retaliatory discharge (see Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353). Why are these factual scenarios treated differently than those coming under the exclusive remedy protections of The Act? An examination of cases noting these exceptions provides some insight.

The Illinois Supreme Court has determined that the term "accidental" in the Act is not a technical legal term but encompasses anything that happens without design or an event which is unforeseen by the person to whom it happens. ( Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 463, 564 N.E.2d 1222, 1226.) Thus, one rationale given in support of the rule that claims for intentional torts are not barred by the exclusive remedy provision is that the employer should not be permitted to assert that the injury was "accidental," and therefore fall under the exclusive provisions of the Act, when it intentionally committed the act. ( Meerbrey, 139 Ill. 2d at 464, 564 N.E.2d at 1226; 2 A. Larson, Law of Workmen's Compensation § 68.11 (1993).) The socially beneficial purpose of the worker's compensation law was not meant to permit a person who commits an intentional tort to use the compensation law as a shield against liability. ( Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 915, 380 N.E.2d 924, 928.) In addition, it has been theorized that because benefits under the Act are paid from employers' premiums as a means of spreading the cost of hazards of the work place, the legislature did not intend that an intentional tortfeasor shift his liability for his acts to such a fund. Jablonski, 63 Ill. App. 3d at 915, 380 N.E.2d at 928.

Another exception to the exclusive remedy rule is recognized if an employer takes retaliatory action against employees for availing themselves of benefits under the Worker's Compensation Act. To illustrate, in La Porte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, 572 N.E.2d 1209, a former at-will employee filed suit against her employer alleging that she was discharged because of her work-related injury. The court rejected the defendant's claim that plaintiff's suit was barred by the exclusive remedy provision of the Act. Relying on Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the court reasoned,

"Our supreme court held that to allow an employer to terminate an employee for filing a claim would seriously undermine the intended policy of the Worker's Compensation Act to provide employees the protection of prompt and equitable compensation for their ...


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