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Equistar Chemicals, L.P. v. BMW Constructors

November 3, 2004


Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois, No. 99-L-21. Honorable Lance Peterson, Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE


Modified upon denial of rehearing

Jerry Wood, an injured employee, brought an action in the Circuit Court in Grundy County against his co-employee, Michael Bromberek, and the premises owner, third party tortfeasor Equistar Chemicals. Equistar filed a third party action against Wood's employer, BMW Construction, seeking contribution. Bromberek and Wood entered into a settlement agreement whereby Bromberek agreed to pay Wood $5,000 for injuries he sustained in exchange for a full release of all liability. BMW moved for summary judgment, contending the settlement had discharged its vicarious liability. The trial court agreed and granted BMW's summary judgment motion and appeal was taken. For the following reasons, we reverse and remand.


Wood and his spouse sued defendant Equistar to recover damages for personal injuries received when Wood was struck by a truck driven by Bromberek. In his complaint, Wood alleged the negligence of Equistar in connection with the condition of the premises on which the injuries occurred. Wood further alleged that at the time of the accident, he and Bromberek were employees of BMW. Equistar answered and filed a third-party complaint seeking contribution from BMW and Bromberek for the underlying claim filed by Wood. The third-party complaint against BMW asserted two grounds for recovery: BMW's own negligence and vicarious liability for the negligence of Bromberek. This third party complaint is the subject of this appeal. Wood subsequently amended his complaint to make Bromberek a direct defendant alleging negligence but not intentional misconduct. That complaint sought to recover for the same injuries.*fn1

On June 21, 2000, Bromberek filed a motion to dismiss. In his motion, Bromberek claimed, in part, that he was entitled to the dismissal of the Wood complaint under the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 2002)) where the complaint alleged that Wood and Bromberek were both employees of BMW. Memoranda opposing the motion on the grounds that Bromberek had not been acting in the course and scope of his employment at the time of the accident were filed or adopted by plaintiff and Equistar. The briefing was completed in late October 2001.

On January 23, 2002, in advance of any decision by the court on the motion to dismiss, Bromberek entered into a written settlement and release agreement with Wood under the terms of which Wood received $5,000 in exchange for a full and complete release of Bromberek and his insurer from all liability as a consequence of his injuries. In the written agreement, Bromberek specifically denied he had been negligent. BMW was not named as a released party in the written settlement.

Bromberek, thereafter, petitioned the trial court for a finding of good faith pursuant to the Illinois Joint Tortfeasors Contribution Act (Contribution Act) (740 ILCS 100/2(d) (West 2002)). On the same day, the trial court held a settlement hearing with all parties present through their attorneys. The court entered an order finding that the settlement between Bromberek and Wood was in good faith and dismissed Wood's action against Bromberek with prejudice. Counsel for Equistar did not object to the court's good faith finding.

On October 7, 2002, BMW filed a motion for summary judgment as to both counts of Equistar's second amended complaint on the theory that Equistar "has failed to establish the necessary requisites to hold BMW liable under vicarious liability." Also on October 7, BMW filed a memorandum in support of its summary judgment motion, asserting: (1) Wood's settlement with Bromberek "extinguishes any purported vicarious liability" of BMW; and (2) "BMW had no duty to supervise its employees in the operation of their own vehicles."

Equistar filed a response to BMW's motion for summary judgment on October 21, 2002. In this response, Equistar did not address the substance of the first legal contention raised by the summary judgment motion.

On October 29, 2002, the trial court heard argument on the motion. During the course of the hearing, counsel for Equistar stated: "Judge, I think as we noted earlier on the record, we don't contest the liability of BMW strictly as it relates to vicarious liability. Based on that settlement, once Mr. Bromberek was out, I don't think he (sic) could be vicariously liable." On October 30, the court granted BMW's motion for summary judgment and dismissed all complaints and cross-claims against BMW with prejudice. A finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) was made.

On December 2, 2002, Equistar filed a motion to reconsider the court's ruling. Equistar, citing Ramsey v. Morrison, 175 Ill. 2d 218, 676 N.E.2d 1304 (1997), argued Bromberek's settlement had no bearing on BMW's derivative liability. Following a hearing, the court denied Equistar's motion and concluded:

"I'm quite confident this unique set of facts has not been addressed by an appellate court, at least that I know of, and so if I just dogmatically apply the rules set forth in both cases, that plaintiff has the right--I'm sorry, third party plaintiff Equistar has the right to sue the employer for contribution notwithstanding the Workers' Compensation Act, which they did, but I cannot get around the rule of law that still exists that settlement between the plaintiff and the agent extinguishes vicarious liability of the principal."

The trial court then entered the required finding of "no just reason to delay enforcement or appeal," and third-party ...

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