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09/29/95 ANTONIO CRESPO v. WEBER STEPHEN PRODUCTS

September 29, 1995

ANTONIO CRESPO, PLAINTIFF-APPELLANT,
v.
WEBER STEPHEN PRODUCTS COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Stephen A. Schiller, Judge Presiding.

Released for Publication November 3, 1995.

Presiding Justice Greiman delivered the opinion of the court: Rizzi, and Cerda, J.j., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Antonio Crespo (plaintiff) brought an action against defendant Weber Stephen, Inc. (Weber) for injuries sustained when his hand was crushed in a punch press owned and operated by Weber. Weber filed a 2-619 motion to dismiss alleging that plaintiff was a "loaned employee" and thus subject to the exclusive remedy provisions of section 305/5(a) of the Worker's Compensation Act (Act). (820 ILCS 305/5(a) (West 1993).) The trial court granted Weber's motion.

The issue before this court is whether plaintiff was Weber's "loaned employee" and therefore subject to the provisions of the Worker's Compensation Act.

Plaintiff is a 33-year-old manual laborer of Hispanic descent who claims to neither speak, read nor understand English. On February 12, 1992, plaintiff began working for Handy Andy Industrial Services (Handy Andy). Plaintiff reported to Handy Andy headquarters each day at 6 a.m., where he and other employees would wait to see if they were selected by a Handy Andy representative to work that particular day. If chosen to work, plaintiff would be transported to and from a particular job site on a bus or van provided by Handy Andy. Plaintiff was paid an hourly wage by Handy Andy, after deducting income tax withheld and FICA.

Plaintiff followed this routine for approximately four weeks, working on several different job sites. Plaintiff admits being told by Handy Andy that he was to follow the instructions of whomever was in charge of the various job sites where he worked, although he claims he was never specifically informed by Handy Andy personnel that he was anything other than a Handy Andy employee.

On March 16, 1992, after reporting to Handy Andy, plaintiff was transported to Weber's work facility. This was the first day he was scheduled to work at Weber. Shortly after arriving at Weber, plaintiff slipped on oil that had accumulated near a punch press. As he fell, plaintiff stepped on a foot pedal, activating the press punch. Plaintiff reached out to regain his balance, unfortunately placing his hand under the now running press, which crushed his right hand. Plaintiff was admitted to the emergency room of Northwest Community Hospital, where his index and little fingers were amputated.

Plaintiff filed a worker's compensation claim against Handy Andy which was settled for $10,832.66. Plaintiff did not file a worker's compensation claim against Weber, nor was Weber included in the settlement agreement between plaintiff and Handy Andy.

On March 1, 1993, plaintiff filed a negligence action against Weber alleging that Weber failed to properly train him in the use of the press punch, failed to utilize guarding devices on the punch press, allowed oil to accumulate near a work station, and operated a defective and dangerous machine. Weber filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure. (735 ILCS 5/2-619 (West 1993).) The motion included the affidavit of Weber's vice president, Leonard Gryn, and stated that Handy Andy was a firm that "provided temporary labor services to its clients, of which Weber was one." Plaintiff challenged the sufficiency of the affidavit, acknowledging that the affiant might be in a position to speak for Weber, but that there was no showing that he was in a position to assess the kind of business in which Handy Andy engaged. In his reply to Weber's motion, plaintiff stated: "Handy Andy is a company which hires employees who report to its facility on a daily basis, delivers those employees to work sites in the Chicago area, returns its employees and pays them an hourly wage each Friday."

The motion to dismiss was granted by the trial court, presumably on a finding that, as a matter of law, plaintiff was a loaned employee subject to the exclusive remedy provided by section 305/5(a) of the Worker's Compensation Act. Plaintiff appeals the trial court's order granting Weber's motion to dismiss, contending issues of material fact exist as to whether he met the definition of a "loaned employee."

The standard of review when considering orders on motions to dismiss is de novo. ( Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 615 N.E.2d 50, 185 Ill. Dec. 755.) Under Illinois' loaned employee doctrine, an employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of the person to whom he is loaned. ( A. J. Johnson Paving Co. v. Industrial Commission (1980), 82 Ill. 2d 341, 412 N.E.2d 477, 45 Ill. Dec. 126.) Whether such a constructive transfer of employment occurs depends on whether the borrowing employer has the right to direct and control the employee with respect to the work performed and whether an employment contract, express or implied, existed between the employee and the borrowing employer. A. J. Johnson Paving, 82 Ill. 2d at 347.

The primary factor in determining a borrowed-employment relationship is the right to control the manner and direction of the subject employee's work. ( O'Loughlin v. ServiceMaster Co. Ltd. Partnership (1991), 216 Ill. App. 3d 27, 35, 576 N.E.2d 196, 159 Ill. Dec. 527; Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 394 N.E.2d 1230, 31 Ill. Dec. 853.) Other factors to be considered include the manner of hiring, the mode of payment, the nature of the work, the manner of direction and supervision of work, and the right to discharge. ( O'Loughlin, 216 Ill. App. 3d at 35; Mosley, 76 Ill. App. 3d at 719.) Additionally, the Illinois Supreme Court recognizes the threshold inquiry whether the employee actually or impliedly consented to work for the borrowing employer. ( A. J. Johnson Paving, 82 Ill. 2d at 348.) Implied consent exists where the employee is aware that the borrowing employer "is in charge" or generally controls the employee's performance. The ...


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