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Moevanu Prodanic, Individually and As v. Grossinger City Autocorp

July 19, 2012

MOEVANU PRODANIC, INDIVIDUALLY AND AS
SPECIAL ADMINISTRATOR FOR THE ESTATE OF MILOVAN
PRODANIC, DECEASED,
PLAINTIFF-APPELLANT,
v.
GROSSINGER CITY AUTOCORP, INC.,
DEFENDANT-APPELLEE GROSSPROPS ASSOCIATES, LLC, DEFENDANT; GROSSINGER MOTORCORP, INC., AND UNITED HEARTLAND, INC.,
INTERVENORS-PLAINTIFFS.



Appeal from the Circuit Court of Cook County No. 09 L 258 Honorable Drella C. Savage, Judge Presiding.

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

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.

OPINION

¶ 1 This case arises from fatal injuries sustained by Milovan Prodanic (Mike) when an overhead garage door opened while he was repairing it on the premises of Grossinger City Autocorp, Inc. (City Autocorp). Moevanu Prodanic, Mike's wife, then filed a wrongful death and survival action individually and as special administrator for the estate of her deceased husband. The trial court ultimately granted summary judgment in favor of defendant City Autocorp, which asserted that because Mike was a borrowed employee, the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2008)) provided plaintiff's exclusive remedy. On appeal, plaintiff contends the trial court improperly granted summary judgment in favor of City Autocorp because a genuine issue of material fact exists as to whether Mike was a borrowed employee. Finding no such issues of material fact, we affirm the trial court's judgment.

¶ 2 We recite only those facts necessary for an understanding of the procedural posture of this case and the resolution of this appeal. The record essentially shows that siblings Gary Grossinger (Gary) and Caroline Grossinger (Caroline) operated numerous corporations and car dealerships within the same corporate family. It is undisputed that Mike was hired by Grossinger Chevrolet (Chevrolet) located in Palatine and that at the time of Mike's injury on December 29, 2008, he was working on the premises of City Autocorp, doing business as Grossinger City Toyota (Toyota) at 1233 North Wells Street in Chicago. Plaintiff commenced this action in January 2009, and the amended complaint raised wrongful death and survival claims against City Autocorp as well as Grossprops Associates, LLC (Associates), which appears to have leased the premises at issue to City Autocorp. In addition, the amended complaint alleged that Mike was employed by Grossinger MotorCorp, Inc. (MotorCorp). The trial court subsequently granted leave to intervene to MotorCorp, which, like the amended complaint, claimed that it was Mike's employer. The court also granted Motorcorp's workers' compensation administrator, United Heartland, Inc., leave to intervene. Notwithstanding allegations that Motorcorp was Mike's employer, our record is silent as to the basis for this allegation and does not reflect any meaningful relationship between Motorcorp and the other corporations involved in this case. In any event, Motorcorp's alleged involvement is not at issue on appeal.

¶ 3 The amended complaint alleged, in pertinent part, that Mike was injured while performing work in the scope of his employment at 1233 North Wells Street. Specifically, the complaint alleged that Mike was standing on an elevated work platform and working on an overhead garage door when that door was remotely activated, causing Mike and the platform to fall and resulting in his death. In addition, the complaint essentially alleged that City Autocorp breached its duty to maintain the premises with due care and caution by possessing an unsafe overhead garage door and failing to take certain precautions with respect to the garage door while it was being repaired.

¶ 4 Several depositions were taken during discovery. Gary testified that he was the president of City Autocorp and Chevrolet and that he generally alternated his time spent at those entities. Gary hired Mike to be his driver and to perform maintenance work. Gary also testified that Mike was hired with the understanding that he would work at both entities but no records were kept regarding how many hours he worked at each location. Gary was the only person with the authority to discharge Mike from his employment. Although Mike was hired through Chevrolet and Gary considered Mike to be an employee of both entities, Chevrolet paid Mike's salary. In addition, one workers' compensation policy covered the employees of all Grossinger dealerships and each dealership paid its share. Mike was included in the payments made by Chevrolet, which also provided Mike with a cell phone and the car Mike used to drive Gary.

¶ 5 Mike used both his own tools and tools purchased by Chevrolet. When Mike needed to purchase items for repairs, he was given money by the dealership that needed the repair. Thus, City Autocorp also paid for some of Mike's supplies and tools. In addition, Mike had the authority to obtain bids from contractors to perform work at either dealership, but needed approval from Gary or the general manager of the respective dealership in order to hire a contractor. Gary further testified that Chevrolet owned the lift that Mike had been using during the accident. Caroline also testified that she was the vice president of Chevrolet and City Autocorp and corroborated Gary's testimony that one workers' compensation policy existed for all Grossinger employees, but she had no knowledge regarding Mike's job description and had no authority to discharge him.

¶ 6 Elizabeth Zwierzynski, Chevrolet's office manager, testified in her deposition that Gary hired Mike as his driver and as a maintenance man. Mike was hired to perform work for Chevrolet as well as Grossinger stores in Chicago. Mike's paperwork was processed through Chevrolet when he was hired and Chevrolet gave Mike a weekly paycheck as a salaried employee. In addition, Chevrolet had a charge account that Mike used to purchase gas. Zwierzynski identified Mike's employee file and his signature on several employment related documents, which bore a variety of Grossinger corporate names.

¶ 7 Brian Weinberg testified that he was the general manager of the Wells Street dealership, that his paychecks were issued from "Grossinger City Toyota Scion," and that he was not familiar with a company called "Grossinger City Toyota doing business as City Autocorp, Inc." Mike was "the maintenance man" for the Wells Street dealership and came there twice a week but Weinberg did not hire him or give him a paycheck. Weinberg and Brian Coster, the service director at the Wells Street dealership, would also call Mike to come in at other times and Mike had his own set of keys. Mike did everything that Weinberg asked him to do. In addition, Weinberg did not give Mike instructions regarding how to complete his tasks, but Weinberg had the authority to stop Mike if he was doing something that was not safe. Other employees of the Wells Street dealership occasionally assisted Mike in performing maintenance. If Mike needed to purchase a part, he would do so and bring the receipt to Weinberg or Coster or he would be given the Home Depot credit card and return with the receipt. Furthermore, Weinberg was ultimately responsible for hiring contractors for maintenance issues but Coster would also have been informed if a contractor made a bid. Weinberg did not know whether he had the authority to discharge Mike but would have consulted Gary with any concerns.

¶ 8 Coster testified that he was the service director for "Grossinger Toyota," an entity that had buildings at 1233 North Wells Street and 1241 North Wells Street. Coster did not know which entity hired Mike or paid him, but Gary alone had the authority to terminate his employment. Mike generally came to the Wells Street dealership every Tuesday or Thursday. If Mike was needed on a different day, Weinberg or Coster would call Mike on his cell phone, which he owned. Mike also used only his own tools. In addition, he occasionally used a vehicle owned by the Wells Street dealership, had his own keys to the dealership and knew the code to deactivate the alarm system. Coster would write down tasks that Mike needed to complete on a given day but Coster did not tell Mike exactly how to complete his tasks. Mike was self-sufficient and completed all his tasks. Nonetheless, Coster had the authority to stop Mike if he was doing something unsafe. Furthermore, no paper work was generated for the jobs Mike did unless he purchased materials and sought reimbursement. On the day of the accident, Coster had explained the problem with the garage door to Mike over the phone and Mike had been assisted by a porter while making repairs at the time of the accident.

¶ 9 Jeffrey Jackson, the office manager for City Autocorp doing business as Toyota, testified that when Gary hired Mike, he was placed on the Chevrolet payroll and introduced to Jackson. Gary told Jackson that Mike would come to City Autocorp twice a week or as needed. Mike performed work at both dealerships but no paperwork was performed and Mike would still be paid by Chevrolet. As a result, Jackson never issued Mike a paycheck. Chevrolet also paid for Mike's workers' compensation coverage. In addition, Mike generally drove Gary in a car owned by Chevrolet and kept tools, owned by both himself and Chevrolet, in that car. The scissor lift at City Autocorp was also owned by Chevrolet. When Mike needed to purchase items for City Autocorp doing business as Toyota, Mike was given a Home Depot credit card issued to Toyota and would present Jackson with receipts. Furthermore, Weinberg, Coster and Gary were the only individuals at City Autocorp with the authority to assign Mike work. Weinberg would also call Mike to come in to the dealership. As the individual responsible for issuing checks at City Autocorp, Jackson knew that Weinberg and Coster were employees of City Autocorp. Although Gary had the authority to terminate Mike's employment, no one else at City Autocorp had that authority. Steve Morgenstern, controller for MotorCorp, corroborated Jackson's testimony that Mike drove Gary around, performed repair work for him and was paid by Chevrolet, which also provided Mike's workers' compensation coverage.

¶ 10 Andres Alcaraz first testified in his deposition that he was employed by Grossinger City Autoplex, which issued his paychecks. He also testified, however, that his place of employment was located at 1241 North Wells Street, that it was called Grossinger Toyota and Cadillac and that Coster was his immediate supervisor. In addition, Alcaraz testified that Mike, Gary's driver, would come with Gary to the dealership and ask if any work needed to be done. Alcaraz had previously gone with Mike to Home Depot to purchase items for the dealership and Mike had a "Grossinger" credit card. On the day of the accident, Alcaraz had been assisting Mike with repairs to the garage door.

ΒΆ 11 In December 2010, City Autocorp moved for summary judgment, arguing, in pertinent part, that because Mike was City Autocorp's borrowed employee at the time of the accident, his claim against City Autocorp was barred by the exclusive remedy provision of the Act (820 ILCS 305/5(a)(West 2010)). Specifically, City Autocorp argued that Chevrolet loaned Mike to City Autocorp as its employee, that City Autocorp exercised complete control over him while on loan and that he reported to City Autocorp managers for assignments. City Autocorp also argued that its managers could stop Mike's work if they believed his conduct was not safe and that Mike relied on City Autocorp's other employees to assist him. In addition, City Autocorp argued that it provided Mike with tools and that Chevrolet relinquished control over the lift for Mike's use. City Autocorp further argued Mike implicitly consented to his employment with City Autocorp because he traveled to a different location, in a different city, where he worked for different people on a regular basis and completed every assignment he received from City Autocorp managers. Attached to the motion were the transcripts from the depositions of Gary, Coster, Jackson, Zwierzynski, Alcaraz and Weinberg, as well as an affidavit executed ...

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