Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burge v. Exelon Generation Co., LLC

Court of Appeals of Illinois, Second District

July 30, 2015

RICK BURGE and NELDA M. BURGE, Plaintiffs-Appellants,

Appeal from the Circuit Court of Ogle County. No. 12-L-8. Honorable John B. Roe, Judge, Presiding.

Burke and Spence, Justices concurred in the judgment and opinion.


Page 908


[¶1] Plaintiffs, Rick Burge and Nelda M. Burge, appeal from an order of the circuit court of Ogle County granting the motion of defendant, Exelon Generation Company, LLC, to dismiss plaintiffs' two-count negligence complaint. Defendant successfully argued that plaintiffs' exclusive remedy was under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2012)). We reverse and remand for further proceedings.

[¶2] Count I of the complaint sought recovery for injuries Rick allegedly suffered due to the unsafe condition of defendant's premises. Count II sought recovery for Nelda's loss of Rick's services and earnings and his love, affection, and companionship. It is undisputed that Rick's injuries arose out of and in the course of his employment with Exelon Nuclear Security, LLC (ENS), and that Rick filed and settled a workers' compensation claim against ENS. ENS is a Delaware limited liability company organized pursuant to an agreement (the LLC Agreement) making defendant the sole member of ENS. ENS provided security services on defendant's premises pursuant to a contract with defendant. Additional relevant facts will be set forth in our analysis of the issue raised on appeal.

[¶3] At the outset, we note that, although defendant's motion to dismiss did not indicate that it was brought pursuant to any particular provision of the Code of Civil Procedure (the Code) (735 ILCS 5/1-101 et seq. (West 2012)), the motion was, in substance, brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)). Section 2-619 provides that an action may be dismissed, on the motion of the defendant, based on various enumerated defenses (735 ILCS 5/2-619(a)(1)-(8) (West 2012)) or " other affirmative matter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2-619(a)(9) (West 2012)). A section 2-619 motion must be supported by affidavits establishing grounds for dismissal that do not appear on the face of the complaint. 735 ILCS 5/2-619(a) (West 2012); Becker v. Zellner, 292 Ill.App.3d 116, 124, 684 N.E.2d 1378, 226 Ill.Dec. 175 (1997). As our supreme court has noted, " [a]n appeal from a section 2-619 dismissal is similar to an appeal following a grant of summary judgment, and both are subject to de novo review." Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 254, 807 N.E.2d 439, 282 Ill.Dec. 815 (2004). The question on appeal is " whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal is proper as a matter of law." Id.

[¶4] Under section 1(a)(3) of the Act (820 ILCS 305/1(a)(3) (West 2012)), an employer " is liable to pay compensation to his own immediate employees ***, and in

Page 909

addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he is liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor has insured, in any company or association authorized under the laws of this State to insure the liability to pay compensation under this Act, or guaranteed his liability to pay such compensation." In its motion to dismiss, defendant contended that it was undisputed that it had engaged ENS as a contractor to provide security services on defendant's premises. Defendant argued that it was " the employer who paid workers' compensation benefits for the plaintiff Rick Burge" and that, pursuant to section 5(a) of the Act (820 ILCS 305/5(a) (West 2012)), plaintiffs could not maintain a common-law action against defendant. Section 5(a) provides, in pertinent part:

" No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." Id.

[¶5] In support of its motion, defendant submitted the affidavit of Christine M. Wendt, the workers' compensation manager of the benefits department for Exelon Business Services Company. Wendt averred that she oversaw " the entire Exelon-related system of workers' compensation benefits." According to Wendt's affidavit, defendant used a third-party administrator/payor for workers' compensation benefits and " paid all monies for the [ENS account] made to or on the behalf of Rick Burge." Wendt averred that defendant " paid the worker's compensation benefits of any/all employees of [ENS], including [Rick], as it was obligated to do under [section 1(a)(3) of the Act]." (Emphasis added.)

[¶6] In their written response to defendant's motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill.2d 437, 447, 359 N.E.2d 125, 3 Ill.Dec. 715 (1976), where our supreme court held that section 5(a) " confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees." (Emphasis added.) Confronted with that legal authority, defendant stated in its reply to plaintiffs' response that its prior reference to its " 'obligations'" under section 1(a)(3) was " merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured." Defendant claimed, however, that it had reimbursed ENS for workers' compensation payments to ENS employees. Citing Ioerger v. Halverson Construction Co., 232 Ill.2d 196, 902 N.E.2d 645, 327 Ill.Dec. 524 (2008), and Villa v. Arthur Rubloff & Co. of Illinois, 183 Ill.App.3d 746, 539 N.E.2d 364, 132 Ill.Dec. 54 (1989), defendant argued that, because it had reimbursed ENS for workers' compensation payments, and because of its ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.