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April 29, 1994


Appeal from the Circuit Court of Cook County. No. 90L50830. Honorable Alexander P. White, Judge Presiding.

Rarick, McCULLOUGH, Rakowski, Woodward, Slater

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the court:

Claimant, Carole Utter, sought death benefits pursuant to the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) (the Act) for the death of her husband, James Utter, while in the employ of respondent Montgomery Tank Lines (MTL). James Utter was a truck driver for MTL and was killed in Indiana on September 30, 1986, in a work-related accident. Utter and his family lived in Lake Village, Indiana, having moved there from Lansing, Illinois, in September of 1973.

Decedent began working for MTL in October of 1979. He applied for employment as a driver at MTL's office in Gary, Indiana, on October 1, 1979. He took and passed his road test given at Gary on October 22, 1979. Thereafter he hauled loads for MTL, but was paid by Lake Shore Leasing (LSL), a company formed by a group of dispatchers and other involved with MTL. LSL leased equipment to MTL and ran the repair facility for MTL. From 1979 until July 18, 1983, Utter was paid by LSL. After July 18, 1983, Utter was paid by MTL. Utter leased his truck from LSL and worked for MTL as an owner-operator. On January 18, 1985, Utter began leasing his truck from MTL.

From 1976 until October of 1979, MTL's offices were located in Lansing and Willow Springs, Illinois. There was also an office in Summit, Illinois, which handled billing and payroll. In October of 1979, the entire operation was moved to Gary, Indiana. From October of 1979 until early 1981, Utter was dispatched out of Gary. The facility in Gary was an LSL facility, but dispatching was done by MTL. In early 1981, MTL moved its operations to Summit, Illinois. The repair facility and the safety office remained in Gary, Indiana. In 1982, themain office returned to Gary, Indiana, but the dispatch office remained in Summit. In February of 1986, the main office moved to Plant City, Florida, but the dispatch office remained in Summit. From 1981 on, MTL's dispatch office was in Summit, Illinois. All drivers were dispatched from Summit, reported there for their records, and received their paychecks from that location. Owners were required to file paperwork on a daily basis, and as of 1983, drivers were instructed by the terminal manager to list Summit as the home terminal on all paperwork. In 1982, separate offices were established for the food division and the chemical division. Utter worked for the chemical board, which was headquartered in Summit. The food division was headquartered in Gary, Indiana. In 1985, the chemical division was further divided into the solvent division and the resin division. Utter worked for the solvent division. The terminals for solvents and resins were separate, but were located next to each other in Summit. Utter would have the tank of his rig washed out at the terminal in Summit. In 1986, Utter became a "dedicated hauler" for the Unocal Chemical Division account. This meant he hauled loads only for Unocal. He would pick up a load from Unocal, deliver it, and then come back empty.

As part of its records, MTL kept track of the total mileage each driver covered on each trip, plus mileage traveled by each driver in each state. According to the mileage report for the period covering the third quarter of 1984 through the third quarter of 1986, decedent drove a total of 170,000 miles over an eight state area with 32,500 miles, or 19%, being driven in Illinois. During the one-year period prior to his death, Utter drove a total of 79,700 miles, 14,700 of which were driven in Illinois. In 1986, he drove 52,000 miles, 12,000 of which were driven in Illinois.

Carole Utter sought and received benefits pursuant to Indiana law. She also sought benefits under Illinois law, but MTL challenged Illinois jurisdiction. Arbitration hearings were held on August 9, 1988, and November 4, 1988. On March 31, 1989, the arbitrator ruled that Illinois jurisdiction was proper, based upon the decedent's employment being principally localized in Illinois, and awarded Carole Utter death benefits pursuant to the Act. The arbitrator's decision was affirmed by the Industrial Commission (the Commission). Judicial review was sought by MTL. During the pendency of its review in the circuit court, MTL filed a motion to withdraw its stipulation as to wages and requested remand of the case to the Commission on this issue. For unknown reasons, neither the motion nor the notice thereof was included in the record, but the record does contain a copy of each party's brief in connection with the motion. The circuitcourt denied the motion, but its order confirming the decision of the Commission made no reference to either the motion or its Disposition thereof.

On appeal, MTL first argues that the Commission's decision finding that Utter's employment was principally localized in Illinois was against the manifest weight of the evidence, because most of Utter's working time was spent in other states.

The Commission therefore erred, MTL maintains, in finding that Illinois has jurisdiction.

Section 1(b)(2) of the Act defines as an "employee:"

Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, persons whose employment results in fatal or non-fatal injuries within the State of Illinois where the contract of hire is made outside of the State of Illinois, and persons whose employment is principally localized within the State of Illinois, regardless of the place of the accident or the place where the contract of hire was made, and including aliens, and minors who, for the purpose of this Act are considered the same and have the same power to contract, receive payments and give quittances therefor, as adult employees. (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(b)(2).

Under section 1(b)(2), there are three bases for acquiring Illinois jurisdiction: (1) if the contract for hire is made in Illinois; (2) if the accident occurred in Illinois; and (3) if the claimant's employment is principally localized in Illinois, regardless of where the contract for hire was made or where the accident occurred. In the present case, the Commission found jurisdiction based upon Utter's employment being "principally localized" in Illinois.

The seminal case interpreting the phrase "principally localized" is Patton v. Industrial Comm'n (1986), 147 Ill. App. 3d 738, 498 N.E.2d 539, 101 Ill. Dec. 215. In Patton, the claimant, a truck driver, was hired by the respondent in St. Louis, Missouri, at the respondent's main terminal. Claimant was a truck driver, and his duties required him to deliver automobiles to various dealers in a number of states. Respondent's principal facility was in St. Louis, Missouri, but it also had a terminal in East St. Louis, Illinois. Claimant worked solely out of the St. Louis terminal. Claimant was injured while off-loading vehicles in Evansville, Indiana. The parties stipulated that claimant had ...

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