United States District Court, S.D. Illinois
May 17, 2005.
ROBERT POLSON and MARY POLSON, Plaintiffs,
COTTRELL, INC., JACK COOPER TRANSPORT COMPANY, and GENERAL MOTORS CORPORATION, Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM and ORDER
I. Introduction and Background
Pending before the Court is Defendant Jack Cooper Transport
Company's motion to dismiss for lack of subject matter
jurisdiction (Doc. 31). Jack Cooper Transport Company argues that
the Court lacks subject matter jurisdiction over Plaintiffs'
claims against it as Plaintiffs' exclusive remedy is pursuant to
the Illinois Workers' Compensation Act. Plaintiffs oppose the
motion. Based on the following, the Court grants the motion to
On October 10, 2004, Plaintiffs Robert and Mary Polson filed a
sevencount complaint in the Madison County, Illinois Circuit
Court against Cottrell, Inc. ("Cottrell"), Jack Cooper Transport Company ("Jack Cooper") and
General Motors Corporation ("General Motors") (Doc. 2). The
Polsons' claims arise from a February 19, 2003 incident wherein
Robert was injured while operating the chain and ratchet tie down
system of a rig designed and distributed by Cottrell as part of
his duties as car hauler for Jack Cooper. Count I is against
Cottrell for strict liability; Count II is against Cottrell for
negligence; Count III is against Cottrell for breach of implied
warranty; Count IV is against General Motors for negligence;
Count V is against all Defendants based on a conscious disregard
theory; Count VI is brought by Mary against all Defendants for
loss of consortium and Count VII is against Jack Cooper for an
On December 1, 2004, Cottrell removed the case to this Court
based on the federal diversity statute, 28 U.S.C. § 1332 (Doc.
1). That same day, both Jack Cooper and General Motors filed
consents to the removal (Docs. 3 & 4).
Cottrell removed the case to this Court based on the federal
diversity statute, 28 U.S.C. § 1332. Under 28 U.S.C. § 1441,
removal is proper over any action that could have been filed
originally in federal court. However, if the district court lacks
subject matter jurisdiction, the matter must be remanded to state
court pursuant to 28 U.S.C. § 1447(c), Courts presume a
plaintiff's choice of forum is proper and valid and resolve all
doubts regarding jurisdiction in favor of remand. See Doe v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). The
diversity statute requires complete diversity between the parties plus an
amount in controversy which exceeds $75,000, exclusive of
interest and cost. Complete diversity of citizenship means that
"none of the parties on either side of the litigation may be a
citizen of a state of which a party on the other side is a
citizen." Howell v. Tribune Entertainment Co., 106 F.3d 215,
217 (7th Cir. 1997) (citations omitted). Here, it is undisputed
that the amount in controversy is met. The problem is that both
the Polsons and Jack Cooper are citizens of Missouri.*fn1
Therefore, unless Jack Cooper's citizenship is disregarded, there
is no federal jurisdiction over the Polsons' claims.
The question of whether the Court has jurisdiction over the
Polsons' claims turns on whether Jack Cooper was fraudulently
joined as a defendant. In the context of fraudulent joinder,
"fraudulent" is a term of art. See Poulos v. Naas Foods, Inc.,
959 F.2d 69, 73 (7th Cir. 1992). "Although false allegations of
jurisdictional fact may make joinder fraudulent, . . . in most
cases fraudulent joinder involves a claim against an in-state
defendant that simply has not chance of success, whatever, the
plaintiff's motives. Id. (collecting cases). It is true that,
as a general rule, the right of removal cannot be defeated "by a
fraudulent joinder of a resident defendant having no real
connection with the controversy." Wilson v. Republic Iron &
Steel Co., 257 U.S. 92, 97 (1921). To prove fraudulent joinder
the defendant must "show there exists no `reasonable possibility
that a state court would rule against the [in-state] defendant,'" Schwartz v. State Farm
Mutual Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999)
(citing Poulos, 959 F.2d at 73), or "if a state court has
come to judgment, there [is not] any reasonable possibility that
the judgment will be reversed on appeal." Poulos,
959 F.2d at 73. The defendant bears of heavy burden in this regard. Id.
Thus, even if a state court might ultimately find that Plaintiffs
failed to state a claim against Jack Cooper joinder of Jack
Cooper was not "`fraudulent' for purposes of this court's
jurisdiction so long as the issue of state law is subject to
reasonable argument on both sides." See Batoff v. State Farm
Insurance Co., 977 F.2d 848, 853 (3rd Cir. 1992) (if "intricate
analysis of state law" is needed to dismiss claim, the claim may
not be disregarded for purposes of diversity jurisdiction).
The Court must turn to the Polsons' allegations against Jack
Cooper to determine whether after resolving all issues of fact
and law in favor of the Polsons, they can establish a cause of
action against Jack Cooper. Because the parties have raised a
choice of law issue, the Court must first decide which states law
applies in this case, Missouri or Illinois. Federal courts
sitting in diversity apply the choice-oflaw rules of the forum
state to determine the applicable substantive law. Hinc v.
Lime-O-Sol, 382 F.3d 716, 719 (7th Cir. 2004) (citations
omitted). For tort claims, Illinois follows the most significant
relationship test of the Restatement (Second) of Conflicts of
Law. Ingersoll v. Klein, 262 N.E.2d 593 (Ill. 1970). "Under
this test, the law of the place of injury controls unless
Illinois has a more significant relationship with the occurrence and with the
parties." Id. at 595. When applying this test the court
considers: (1) where the injury occurred; (2) where the injury
causing conduct occurred; (3) the domicile of the party; and (4)
where the relationship of the parties is centered. Id. at 47,
262 N.E.2d 593. The Illinois courts also consider "the interests
and public policies of potentially concerned states . . . as they
relate to the transaction in issue." Jones v. State Farm Mut.
Auto. Ins. Co., 682 N.E.2d 238, 249 (Ill.App. 1997).
On balance, the Court finds that Illinois has the most
significant contacts and a more significant interest in resolving
this litigation, as the injury occurred in McClean, Illinois.
Further, the totality of factors weighs in favor of applying
Illinois law as Polson filed an Application for Adjustment of
Claim with the Illinois Industrial Commission, received workers'
compensation benefits under the Illinois Workers' Compensation
Act and filed his personal injury lawsuit in an Illinois State
Applying Illinois law, the Court must now determine whether the
Polsons can maintain a cause of action against Jack Copper
despite the Illinois Workers' Compensation Act's exclusivity
remedy doctrine, 820 ILCS 305/1 et seq.
"On February 19, 2003, Robert Polson, was performing his normal
work duties as a car hauler for his employer in Illinois." (Doc.
2, p. 2, ¶ 4). "[P]laintiff, while attempting to perform his
normal work activities in an intended and/or foreseeable fashion
while using a ratchet, idler, hook and chain during normal procedures by which he was trained, sustained severe and
permanent injuries to his neck, spine and related areas while
exerting required and/or foreseeable force and pressure." (Doc.
2, p. 3, ¶ 9). That same day, Polson reported that he had been
injured to his employer Jack Cooper. On March 6, 2003, Polson
began receiving workers' compensation benefits as a result of the
February 19, 2003 accident, including payment of medical expenses
and temporary total disability benefits ("TTD") pursuant to the
Missouri Workers' Compensation Act.*fn2 Thereafter, Polson
filed an Application for Adjustment of Claim with the Illinois
Industrial Commission on March 27, 2003. On June 19, 2003, Jack
Cooper began paying Polson TTD at the higher Illinois rate and
has continued paying Polson TTD at the Illinois rate to the
present. (Doc. 44, Exhibit A). Also on June 19, 2003, Jack Cooper
issued a check to Polson representing the difference between what
had been paid to Polson under the Missouri TTD rate and what he
would have received under the higher Illinois rate. (Doc. 44,
Jack Cooper maintains that the exclusivity remedy doctrine of
the Illinois Workers' Compensation Act bars Polsons' claims. On
the other hand, the Polsons argue that they have a viable cause
of action against Jack Cooper because the mere filing of a
worker's compensation pleadings/claim does not constitute a bar
to the simultaneous pursuit of a lawsuit sounding in fraud or
other intentional torts. Based on the following, the Court finds that the Polsons' claims
against Jack Cooper are barred by the exclusivity remedy
"The Workers' Compensation Act is designed to provide financial
protection to workers for accidental injuries arising out of and
in the course of employment." Meerbrey v. Marshall Field and
Co., Inc., 564 N.E.2d 1222, 1225 (Ill. 1990). "Accordingly,
the Act imposes liability without fault upon the employer and, in
return, prohibits common law suits by employees against the
employer." Id. "The exclusive remedy provision `is part of the
quid pro quo in which the sacrifices and gains of employees and
employers are to some extent put in balance, for, while the
employer assumes a new liability without fault, he is relieved of
the prospect of large damage verdicts.'" Id. (quoting 2A A.
Larson, Law of Workmen's Compensation § 65.11 (1988)). Thus,
injured employees are not permitted to seek and recover both
compensation under the Act and common law damages resulting from
allegations that their injuries were intentionally caused by
their employers. Collier v. Wagner Castings Co.,
408 N.E.2d 198, 203 (Ill. 1980).
In order to avoid the exclusivity bar of sections 5(a) and 11
of the Act, a plaintiff must prove "`either that the injury (1)
was not accidental (2) did not arise from his or her employment,
(3) was not received during the course of employment or (4) was
not compensable under the Act.'" Zurowska, 667 N.E.2d at 590
(quoting Fregeau v. Gillespie, 451 N.E.2d 870 (Ill. 1983)).
Once the employee takes the express position that the injury is compensable under
the Act, he is subsequently barred from taking the mutually
exclusive position that the injury was intentional.
However, the Illinois Supreme Court "has stated that an
employee `out of caution or uncertainty,' may file a common law
action against an employer, though he has already filed a
workers' compensation claim." Zurowska v. Berlin Industries,
Inc., 667 N.E.2d 588, 590 (Ill.App. 1996) (quoting Fregeau
v. Gillespie, 451 N.E.2d at 873. This enables the employee who
is uncertain of the proper basis of recovery to toll the statute
of limitations on the civil action. Id. (citing LaGrassa v.
Panozzo, 522 N.E.2d 752 (Ill.App. 1988)). "It is clear that
recovery of payments from the employer under both actions is what
is prohibited. As the supreme court noted in Rhodes, the Act
was designed to `serve as a substitute for an employee's common
law right of action and not as a supplement to it." James v.
Caterpillar Inc., 611 N.E.2d 95, 104 (Ill.App. 1996).
Here, Plaintiffs argue that the claims are not barred because
the mere filing of a workers' compensation pleading does not
constitute a bar to the simultaneous pursuit of a lawsuit
sounding in fraud or other intentional torts. Plaintiffs further
argue that the benefits he received were "voluntary." The Court
does not agree.
In Copass v. Illinois Power, 569 N.E.2d 1211 (Ill.App.
1991),*fn3 "the court distinguished between benefits received voluntarily from
the employer and those benefits received as a result of taking
some action before the Commission. The court explained:
`[P]laintiff in the present case has neither taken
action before the Commission nor asserted any other
way that her husband's death is compensable under the
Act. We hold that uninitiated payments plaintiff
accepted from Illinois Power are not sufficient to
constitute her election to the benefits provided by
the Act. Simply accepting voluntary payments from
Illinois Power, without taking any affirmative action
before the Illinois Commission, is not a clear and
unequivocal act evidencing an assertion that the
death is compensable under the Act."
"In summary, a party who seeks and accepts workers' compensation
benefits is prohibited from subsequently filing suit against the
provider of those benefits. . . . It is only when one actively
seeks benefits and obtains them as a result of those efforts that
she is barred from pursuing common law claim." Wren v. Reddick
Community Fire Protection District, 785 N.E.2d 1052
In the case at bar, Polson has sought (his March 27, 2003
Application for adjustment of claim withe the Illinois Industrial
Commission) and recovered benefits (he has received benefits from
Jack Cooper under the Illinois Workers' Compensation Act from
June 19, 2003 to the present). Thus, unlike the Plaintiff in
Copass, the plaintiff has taken some express action indicating
his injury was compensable under the Act. Furthermore, given that
under section 8(b) of the Act, an employer must pay TTD to an employee whose total incapacity
lasts more than three working days, it seems improper to classify
the payments made by Jack Cooper as "voluntary." In addition,
Illinois Appellate Courts have held, following the Illinois
Supreme Court's decisions, "that the filing of a claim under the
Act, accompanied by the receipt of compensation under the Act,
whether as a result of a final award by the Commission or by
settlement between the parties, constitutes a bar to a tort claim
that the injury was intentionally caused." Zurowska,
667 N.E.2d at 591 (citing James v. Caterpillar, Inc.,
611 N.E.2d 95, 103 (Ill.App. 1996)). The Polsons cannot reap the benefits
of the Act and then deny its applicability. Thus, the Court finds
that the Polsons' claims are barred by the exclusivity remedy of
the Act. Further, the Court finds that Jack Cooper was
fraudulently joined and grants Jack Cooper's motion to dismiss.
Because Jack Cooper was fraudulently joined, the Court has
subject matter jurisdiction over the Polsons' remaining claims
against Cottrell and General Motors. III. Conclusion
The Court finds that the claims against Jack Cooper are barred
by the exclusivity remedy of the Illinois Workers' Compensation
Act and that Jack Cooper was fraudulently joined. The Court
GRANTS Jack Cooper Transport's motion to dismiss for lack of
subject matter jurisdiction (Doc. 31) and DISMISSES with
prejudice Jack Cooper from this case.
IT IS SO ORDERED.