Court of Appeals of Illinois, First District, Third Division
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.
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.
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. 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
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."
understanding from conversations with Herrera, however, was
that Herrera had a long-standing practice of transporting
Express employees to ...