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Morales v. Herrera

Court of Appeals of Illinois, First District, Third Division

December 7, 2016

MARIA MORALES and MARICELA SANCHEZ, Plaintiffs-Appellants,
ALBERTO HERRERA and RADIO FLYER, INC., Defendants-Appellees.

         Appeal from the Circuit Court of Cook County, No. 2012-L-002133; the Hon. Edmund Ponce de Leon, Judge, presiding.


          Sheldon J. Aberman, of Cary L. Wintroub & Associates, of Chicago, for appellants.

          Julie A. Teuscher, Tomas P. Boylan, and Henry Oritz, of Cassiday Schade LLP, and Joel Stephen, of Beverly & Pause, both of Chicago, for appellees.

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


          LAVIN JUSTICE.

         ¶ 1 Plaintiffs Maria Morales and Maricela Sanchez were employees of Express Employment Professionals (Express), a temporary employment agency. On April 21, 2010, Express sent plaintiffs to work at Radio Flyer, Inc. (Radio), located at 6515 West Grand Avenue in Chicago. While Alberto Herrera, a supervisor at Radio, was driving plaintiffs from Radio's Chicago facility to its Elwood facility, a collision occurred. Plaintiffs received workers' compensation benefits through Express but nonetheless commenced this action against defendants Radio and Herrera. The trial court subsequently granted defendants summary judgment, finding that the exclusive remedy provision of the Workers' Compensation Act (Act) (820 ILCS 305/5 (West 2010)) barred plaintiffs' claims because plaintiffs were Radio's borrowed employees and the collision arose in the course of employment. We affirm the trial court's judgment.

         ¶ 2 I. BACKGROUND

         ¶ 3 Express was in the business of sending its employees to temporarily work for entities such as Radio, but Express itself was responsible for paying employees' wages and withholding taxes as well as social security contributions. In April 2010, Express sent plaintiffs to do assembly work for Radio. Sanchez testified that Herrera, her supervisor at Radio, told her what to do and how to do it. Additionally, he told Sanchez when to start and stop working, although she generally worked from 8:30 a.m. to 5 p.m. Morales similarly testified that Herrera was her supervisor at Radio, although she considered Express, rather than Radio, to be her employer. Furthermore, Sheila Ryan, Express's general manager, testified that she was not present at the job site and expected plaintiffs to follow the directions of Radio's supervisors within the scope of the job identified by Radio. Ryan also testified, however, that "if we send someone in to be an assembler and all of a sudden they're on a forklift, that's an issue." Moreover, Ryan testified that Express's staffing agreement, which reflected the terms of its contract with Radio, provided that Radio would supervise, direct, and control the work of Express employees.

         ¶ 4 Express employees received a document containing Radio's policies, and Ryan expected her employees to adhere to that document, which stated that "[a]ll warehouse contract employees must comply with the code of conduct, policies and practices during an assignment with Radio Flyer." Additionally, the document stated, "[w]e have a zero tolerance policy at Radio Flyer, and [violations] if discovered, will lead to immediate dismissal from the assignment without the opportunity to return." Finally, the document stated, "[a]ll contract employees must communicate directly with their employer regarding policies, procedures and terms for their employment with the Agency." (Emphasis added.) Ryan testified that while employees would bring questions about Express's policies and procedures to the attention of Express, questions regarding their employment with Radio would be directed to Herrera.

         ¶ 5 Ryan acknowledged that Radio could have an Express employee removed for violating one of Radio's policies. Ryan might try to persuade an employer to deal with an issue in other ways, however. Additionally, Ryan testified that Radio could prevent a particular individual from working for it, even though Radio could not discharge an employee from Express or otherwise discipline Express employees. Similarly, Herrera, as well as AnnMarie Bastuga, Radio's vice president of human resources, stated that Herrera was responsible for determining plaintiffs' duties, schedules, and responsibilities and could determine whether plaintiffs' work should be stopped or terminated.

         ¶ 6 According to Herrera, he had instructed plaintiffs and Donald Bailey, another Express employee, to meet Herrera at Radio's parking lot in Chicago at 7 a.m. on the day in question. Herrera was to drive them to a distant facility in Elwood.[1] Sanchez testified, "We had to be there at 7:00 o'clock in the morning." Upon inquiry, Sanchez further testified it would be correct to say that Herrera "offered" her a ride. Moreover, this was not the first time that Herrera had transported plaintiffs to Elwood.

         ¶ 7 Plaintiffs and Bailey met Herrera in Radio's parking lot and they left at about 7 a.m. Sanchez testified that they would be paid for their time starting at 8 a.m. At about 7:25 a.m., however, Herrera was distracted and hit the vehicle in front of him. Plaintiffs never arrived at the Elwood facility that day, notwithstanding that they were paid for working eight hours. Instead, an ambulance took plaintiffs to the hospital. Sanchez sustained injuries to her chest and back while Morales sustained injuries to her neck, head, and back.

         ¶ 8 Ryan testified that when Bailey called Express's office following the collision, she did not understand what Express employees were doing in Herrera's car. Ryan testified that Express's staffing agreement provided that Radio was to notify Express if duties or the workplace were to change. In addition, plaintiffs were supposed to have started working at 8:30 a.m. in Chicago, and no one consulted her regarding a change in time or location. According to Ryan, the collision occurred approximately an hour before plaintiffs were supposed to have started working. Ryan further testified that while plaintiffs were not performing any delineated tasks at the time of the collision; they were being transported for the purpose of performing work for Radio. Ryan testified that they were "on the clock" for the purposes of workers' compensation, albeit not for Express's purposes. Ryan was later informed that plaintiffs thought she knew Herrera would be transporting them to Elwood.

         ¶ 9 Even if Radio had consulted with her, she would not have allowed Express employees to work in Elwood because it did not fall within Express's insurance coverage. Additionally, it was unreasonable to expect a worker earning $8.50 per hour to travel that distance. Furthermore, Elwood did not fall within her franchise's territory. After the accident, Ryan wrote to Karyn DeFalco, Radio's human resource director in Chicago:

"At no time, past or present, was Mr. Herrera given authorization by Express *** to assign our associates to work in a facility other than 6515 W. Grand Ave., Chicago, IL. We appreciate all opportunities to work with Radio Flyer but respectfully decline employment for Chicago Express associates at locations outside of the facility located at 6515 W. Grand Ave., Chicago, IL 60635 unless the work is at alternative locations within the Chicago metro area comprised of Chicago, Melrose Park, Franklin Park, Schiller Park, Niles, Park Ridge, Morton Grove, Evanston and Skokie. If work should arise in the above stated locations please let us know and we will dispatch our associates accordingly. Any work located outside those areas can be accomplished by other Express offices and we will be happy to provide contact information at your request."

         Bastuga's understanding from conversations with Herrera, however, was that Herrera had a long-standing practice of transporting Express employees to ...

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