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Pempek v. Silliker Laboratories

December 23, 1999

LAWRENCE R. PEMPEK AND SUSAN PEMPEK,
PLAINTIFFS-APPELLEES,
v.
SILLIKER LABORATORIES, INC., DEFENDANT-APPELLEE. CHUBB INSURANCE COMPANY, AS SUBROGEE OF SILLIKER LABORATORIES, INC., THIRD-PARTY PLAINTIFF-APPELLEE,
v.
RMC, INC.,
THIRD-PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 93 L 13324 Honorable Irwin J. Solganick, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Zwick

Plaintiffs, Lawrence and Suzanne Pempek, brought various claims relating to a fall Lawrence had from a ladder on July 21, 1993, while he was working on the roof of defendant, Silliker Laboratories, Inc. At the time, Lawrence was a heating and air conditioning technician employed by third-party defendant RMC, Inc. Plaintiffs brought their actions against Silliker, and Silliker thereafter sought contribution from RMC under the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1992)).

After negotiation, Silliker agreed to pay $350,000 to plaintiffs and cover any additional costs caused by the assertion of a Worker's Compensation lien by RMC. RMC's lien claim was made pursuant to section 5(b) of the Worker's Compensation Act. (820 ILCS 305/5(b) (West 1996)). The trial court found this settlement to have been made in good faith on January 30, 1998, leaving only the contribution action remaining between Silliker and RMC. That same day the court ordered Chubb Insurance Company, Silliker's carrier, to deposit $66,782.60 into an interest bearing checking account to secure RMC's lien.

The trial court thereafter held a jury trial on the single question of what percentage of fault, if any, was attributable to RMC. The jury returned a verdict on February 4, 1998 finding RMC was 60% liable for the Pempeks' injuries and Silliker liable for the remaining 40%. On that same day, the court entered judgment and set a date for a hearing to determine the limit of RMC's liability under the Workers Compensation Act. The hearing was necessary because our supreme court has determined that where an injured employee sues a third party who then brings a contribution action against the plaintiff's employer, the employer may be liable only to the extent of the employer's liability to the employee under the Workers' Compensation Act. Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 585 N.E.2d 1023 (1991).

On March 3, 1998, the court held the Kotecki hearing but did not enter final judgment until March 25, 1998. On that day the court determined that RMC's "Kotecki limit" would be reached by its payment of an additional $43,656.86 over and above what it had previously paid on Pempek's behalf.

On March 25, 1998, the trial court entered an order giving the parties until April 23, 1998 to file any post-trial motions and setting hearing on any such motions for June 8, 1998.

On April 23, 1998, RMC filed a post-trial motion attacking the jury's verdict. RMC did not raise any claims regarding the Kotecki hearing. The court denied this motion on June 9, 1998.

On July 9, 1998, RMC filed its notice of appeal, citing Supreme Court Rules 301 and 303 as the basis of appellate jurisdiction (155 Ill.2d Rs. 301, 303). Subsequently, on August 18, 1998, RMC presented a motion in the circuit court to enforce its lien and seeking an order requiring Chubb to deposit an additional $2,655.11 into the escrow account. RMC claimed that the additional funds were necessary to correct its preliminary estimate of the amount necessary to satisfy the lien. The court initially granted the motion on August 18, 1998, then vacated without comment this order on September 3, 1998. The court subsequently reinstated its August 18, 1998 order on October 20, 1998. Chubb Insurance Company, as subrogee of Silliker, brought a notice of appeal from this order on October 30, 1998.

A review of the facts of the case show that Lawrence Pempek fell because his foot broke through the top rung of the ladder as he was climbing it. Pempek went to Silliker the day before, on July 20, 1993, after receiving a "no cooling call." Randy Coleman, a Silliker employee, met Pempek and accompanied him to the roof. Once on the roof, Pempek determined that he needed to reach a higher tier rooftop. He found a wooden ladder on the roof and used it to gain access to the heating and air conditioning equipment on the second tier. He had used the same ladder 20 to 40 times before when working at Silliker. The ladder was gray and weathered, and the bottom rung of the ladder was missing. At the end of the work day, Pempek required additional materials to complete the job. He left Silliker's premises and returned during the early morning hours of July 21.

When Pempek returned the next day, he found the wooden ladder leaning up against the wall to the second tier, in the same approximate location as where he left it. As he climbed the ladder, he testified that his foot broke through the highest rung, and he fell to the roof below.

Pempek did not recall whether his work truck was equipped with 12-foot extension ladders on the day he fell, but said that even if he had such a ladder on his vehicle, he would not have been able to carry it all the way to the roof. Although there was a permanent metal ladder on the roof affixed to one of the walls to reach the upper tier, Pempek stated that Silliker employees had demonstrated that using the wooden ladder was more convenient. The metal ladder was difficult to climb and hard to get to when compared to the wooden ladder.

Pempek filed a complaint against Silliker claiming that Silliker was negligent and/or violated the Structural Work Act (740 ILCS 150/1 et seq. (West 1996)), and that Silliker's negligence and/or violations of the Structural Work Act proximately caused his injuries. Pempek's wife joined in the complaint seeking recovery for loss of consortium. Silliker filed a third-party complaint for contribution against RMC alleging that RMC was negligent and requesting that RMC pay its pro rata share of any liability to plaintiffs. Specifically, Silliker alleged that RMC was negligent in one or more of the following ways: failing to provide Pempek with the equipment necessary to safely perform his work, failing to train Pempek in the use of wooden ladders, and failing to train Pempek to assess the condition of wood ladders before proceeding to use them.

JURISDICTION OVER APPEAL NO. 1-98-2455

Although RMC has raised several issues attacking the jury's verdict finding that RMC was 60% at fault for plaintiffs' injuries, we must first address the difficult question of whether we have proper jurisdiction over the appeal. Hwang v. Tyler, 253 Ill. App. 3d 43, 45, 625 N.E.2d 243 (1993).

Supreme Court Rule 303(a)(1) provides that a notice of appeal must be filed "within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last-pending post-judgment motion." 155 Ill. 2d R. 303(a)(1). The timely filing of a notice of appeal under Rule 303 is a jurisdictional requirement. See J.D. Marshall International, Inc. v. First National Bank of Chicago, 272 Ill. App. 3d 883, 888, 651 N.E.2d 518 (1995).

The timing of a post-trial motion following a jury trial is governed by section 2-1202 of the Code of Civil Procedure. It provides in relevant part:

"[p]ost-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days or any extensions thereof." 735 ILCS 5/2-1202 (West 1998).

Here, since the court entered "judgment" on the jury's verdict on February 4, 1998, section 2-1202 requires that any post-trial motions attacking that judgment be filed on or before March 6, 1998, unless the court determined to extend the deadline prior to that date. The court's order allowing the parties to file ...


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