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11/13/95 GERALD E. KENNEDY v. FOUR BOYS LABOR

November 13, 1995

GERALD E. KENNEDY, PLAINTIFF-APPELLEE,
v.
FOUR BOYS LABOR SERVICE, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DONALD J. O'BRIEN, JUDGE PRESIDING.

Released for Publication December 21, 1995.

Presiding Justice Campbell delivered the opinion of the court: Wolfson, J., and Braden, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant, Four Boys Labor Services, Inc., appeals from two orders of the circuit court of Cook County entered July 2, 1993. In the first order, the trial court determined that the claim of the plaintiff, Gerald Kennedy, was not barred by the doctrines of res judicata and collateral estoppel, and granted judgment in favor of plaintiff and against defendant in the amount of $68,384.98, plus costs. In the second order, the trial court denied defendant's motion for leave to file instanter a verification of its response to plaintiff's first request for admissions of fact and genuineness of documents. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. Plaintiff became employed by defendant as a sales manager in August 1989. On April 5, 1990, plaintiff suffered a neck injury as a result of a work-related automobile accident. On May 8, 1990, plaintiff and defendant enteredinto a written employment contract, which inter alia, set forth the terms of plaintiff's employment as follows:

"1. TERMS OF EMPLOYMENT: Employee shall be employed under the terms of this contract. Employer or Employee may at any time terminate this contract on not less than 21 days written notice to the other. In the event of such termination the commission payment continuation set forth in paragraph 8 below shall apply."

5. SALARY: Employer shall pay employee a weekly salary of $500.00. * * * Employee shall also receive hospital and medical insurance benefits which Employer shall, from time to time, provide to other employees.

8. CONTINUATION OF COMMISSIONS: In the event that Employee shall voluntarily terminate his employment hereunder, he shall not be entitled to receive any commissions on customer accounts billed at any time subsequent to the date of voluntary termination. If Employer shall terminate Employee's employment here-under, Employee shall be entitled to receive full commissions on all Employee's accounts for a period of twelve (12) months following termination of employment."

On January 21, 1991, plaintiff filed an action against defendant for breach of contract (count I) and retaliatory discharge (count II). In count I, plaintiff alleged that he was discharged on August 29, 1990, in violation of his employment contract. Plaintiff alleged that defendant breached the contract by terminating him without giving him the requisite 21 days notice, and by not paying him his salary and commissions pursuant to the contract.

In count II, plaintiff alleged that defendant discharged him in retaliation for his pursuit of a worker's compensation claim for injuries sustained in the April 5, 1990, accident, and a wage claim for back wages for the two week period ending August 4, 1990, to which he was entitled but not paid.

The record indicates that prior to the filing of plaintiff's lawsuit, a claims adjudicator for the State of Illinois Department of Employment Security (DES) determined that plaintiff was eligible for unemployment compensation benefits under the Unemployment Insurance Act (Act) (820 ILCS 405/700 et seq. (West 1992).) Section 601(A) of the Act provides in pertinent part: "An individual shall be ineligible for benefits for the week in which he has left work voluntarilywithout good cause attributable to the employee unit." Section 601(B) of the Act sets forth an exception from disqualification of benefits to an individual who has left work voluntarily because he is deemed physically unable to perform his work by a licensed physician.

Defendant appealed the finding of the claims adjudicator on December 4, 1990, and on February 15, 1991, a DES referee held a review hearing. On February 21, 1991, the DES referee issued a decision affirming the determination of the claims adjudicator, finding, based on both plaintiff's and defendant's testimony, that in early August 1990, plaintiff's injuries caused him so much pain that, his doctor advised him that he should neither work at his office nor make field calls in his car. Plaintiff stopped reporting for work, although he did make occasional work-related phone calls from his home. Defendant offered him an opportunity to take an unpaid leave of absence but plaintiff refused.

The referee concluded that when plaintiff stopped reporting for work, he gave no indication when or if he would ever return. Thus, defendant had no alternative but to treat plaintiff's extended absence as job abandonment. The referee found that plaintiff did leave work voluntarily, for reasons not attributable to defendant. However, because plaintiff was deemed physically unable to work by a physician, and he so informed his employer, he qualified for benefits under the exception set forth in section 601B(1) of the Unemployment Insurance Act. (820 ILCS 405/601B(1) (West 1992).) Defendant did not appeal the finding of the referee to the circuit court of Cook County.

On April 9, 1992, defendant filed a motion for summary judgment in plaintiff's circuit court action, arguing that plaintiff's civil claim was barred by the doctrine of res judicata, because the DES referee in plaintiff's unemployment insurance claim determined that plaintiff had voluntarily abandoned his job. Thus, defendant argued, plaintiff could not claim breach of contract or retaliatory discharge because the referee already decided the issue of liability for termination of plaintiff's employment. Defendant attached the affidavit of Mark Kozin, defendant's vice president, and son of defendant's late president Erwin Kozin, who stated that plaintiff was fully compensated under the terms of his employment agreement. The trial court denied defendant's motion.

On February 11, 1993, plaintiff filed his first request for admissions of fact and of genuineness of documents. On April 19, 1993, defendant filed an unverified response.

A bench trial commenced on July 1, 1993. At that time, defendant presented a motion for leave to file instanter a verification of itsresponse to plaintiff's first request for admissions of fact and of genuineness of documents. The trial court denied defendant's motion and admitted all of the facts stated in plaintiff's request to admit.

At trial, plaintiff testified that he began working as a sales manager for defendant, a supplier of temporary labor, in late August or early September 1989. Plaintiff's responsibilities included establishing new accounts, necessitating "cold calling" to find new clients. Plaintiff did 90 percent of his work by the telephone. When plaintiff first started working for defendant, he spent four to five hours a day in defendant's offices. Plaintiff also worked out of his apartment making sales calls. Plaintiff testified that as of August 1990, he was responsible for approximately $57,000 in sales per week.

On April 5, 1990, plaintiff was driving his car to the office following a meeting with a customer, when his car was hit from the rear. Plaintiff's sustained injuries to his neck, and he received medical attention. Plaintiff was hospitalized from July 3, 1990, through July 8, 1990. After his release, plaintiff's physician prescribed bed rest. Later in July, plaintiff's symptoms returned, and he underwent a series of treatments.

Plaintiff last worked at defendants' office on August 6, 1990. Plaintiff subsequently learned that he needed to continue bed rest, which constituted lying down for 15 to 20 minutes of every hour, and using a traction device. During his period of bed rest, plaintiff continued to make frequent telephone sales calls for defendant. Plaintiff entered into evidence telephone records, showing the clients he contacted during this period of time. Plaintiff stated that from the period July 15, 1990, through August 1990, he established eight new accounts.

On July 26, 1990, plaintiff filed a worker's compensation claim against defendant. On August 15, 1990, plaintiff filed a complaint with the Illinois Department of Labor for unpaid wages and commissions for ...


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