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12/29/94 TODD B. MORAN AND MARY B. MORAN v. GUST K.

December 29, 1994

TODD B. MORAN AND MARY B. MORAN, PLAINTIFFS-APPELLANTS,
v.
GUST K. NEWBERG/DUGAN & MEYERS, A JOINT VENTURE, DUGAN & MEYERS INTERESTS, INC., D/B/A DUGAN & MEYERS CONSTRUCTION COMPANY, AN OHIO CORPORATION, AND LIBERTY MUTUAL INSURANCE COMPANY, INC., DEFENDANTS-APPELLEES, AND ILLINOIS SPORTS FACILITIES AUTHORITY AND NEAR NORTH INSURANCE AGENCY, INC., A CORPORATION, DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Johnson* and Theis, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiffs, Todd B. Moran and Mary B. Moran, appeal from an order dismissing their complaint with prejudice under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). We consider: (1) whether the trial court improperly considered the defendants' affidavits which did not comply with Supreme Court Rule 191 (134 Ill. 2d R. 191), and a document which was confidential; (2) whether the defendants were entitled to the dismissal of the plaintiffs' complaint as barred under the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 1992)), when the complaint alleged that the plaintiff was an employee of a joint venturer; and (3) whether the trial judge abused his discretion in denying the plaintiffs' motion to amend their complaint. For the following reasons, we affirm.

The plaintiff, Todd B. Moran, filed a claim for workers' compensation benefits for injuries he sustained while working for his employer, Gust K. Newberg Construction Company, Inc. (Newberg Construction), during the construction of a baseball stadium. As part of that proceeding, the parties stipulated that the plaintiff was an employee of Newberg Construction. The defendant, Liberty Mutual Insurance Company, Inc. (Liberty Mutual), insured Newberg Construction for workers' compensation claims.

Subsequently, the plaintiffs filed a four-count complaint on December 11, 1992, against the defendants, Gust K. Newberg/Dugan & Meyers (the joint venture), Dugan & Meyers Interests, Inc., d/b/a Dugan & Meyers Construction Company (Dugan & Meyers Construction), and Liberty Mutual, seeking to recover for the same injuries. The plaintiffs alleged the defendants were negligent and violated the Structural Work Act (750 ILCS 150/1 et seq. (West 1992)).

The joint venture and Dugan & Meyers Construction filed a motion to dismiss under section 2-619 arguing that the plaintiff was actually an employee of the joint venture, as opposed to an employee of Newberg Construction, as the plaintiffs alleged. As a result, the defendants argued the plaintiffs' claim against them was barred by the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 1992)). The defendants alternatively argued that even if the plaintiffs' allegation that the employer was Newberg Construction was true, an action against the defendants would still be barred. The defendants relied on several documents including the joint venture agreement which provided that Newberg Construction and Dugan & Meyers Construction would form a joint venture to submit a bid and, if successful, construct a baseball stadium. The joint venture was the successful bidder. The agreement provided that:

"The parties hereby form a Joint Venture *** for the sole purpose of preparing and submitting the bid and executing, carrying out, and performing the Contract to be entered into with the Owner. The Joint Venture is limited to such bidding and Contract for the Project. Otherwise, each of the Joint Venturers may carry on its separate business for its sole benefit.

***

*** Nothing contained in this Agreement shall be construed to create a partnership between the parties or give rise to any agency relation except as specifically necessary and set forth in this Agreement for performance of the Contract. The Joint Venturers shall be joint venturers only with respect to preparation and submission of the Proposal and performance of the Contract, and nothing contained in this Agreement shall render any Joint Venturer liable for any debts or obligations unrelated to the Joint Venture."

The defendants also relied on the affidavits of David A. Logston, risk manager for Newberg/Perini, and Francis R. Dugan, president of Dugan & Meyers Construction, to support their motion to dismiss. Logston stated in his affidavit that the plaintiff was an employee of the joint venture, he was paid from the joint venture's funds, and Newberg Construction's only connection to the job was as a joint venturer. It is not clear from Logston's affidavit what connection Newberg/Perini had to the job. Dugan stated in his affidavit that the only connection Dugan & Meyers Construction had to the job was as a joint venturer.

Liberty Mutual, Newberg Construction's insurer, joined in the motion to dismiss and argued that under section 5(a) the plaintiffs' action against it was barred.

In response, the plaintiffs argued the plaintiff was an employee of Newberg Construction and submitted certain documents in opposition to the motion including the plaintiff's affidavit. The plaintiff stated that he was an employee of Newberg Construction and his supervisors there told him to report to the job site. When he arrived at the job site on his first day, he signed an employee card for Newberg Construction. While working there, he reported to his supervisors at Newberg Construction and used Newberg Construction equipment. He never reported to or worked for any employer other than Newberg Construction at the job site. He also stated that he did not consent to work for any other employer at the job site.

The plaintiffs also submitted several other documents in opposition to the motion to dismiss including an employee card from Newberg Construction signed by the plaintiff which stated that "Your signature on this card establishes you as an employee of the company"; the plaintiff's workers' compensation claim identifying Newberg Construction as his employer; and Newberg ...


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