TERRANCE L. FALGE, Plaintiff-Appellant,
LINDOO INSTALLATIONS, INC., Defendant-Appellee.
from the Circuit Court of Du Page County. No. 13-L-0399
Honorable Robert G. Kleeman, Judge, Presiding.
JUSTICE BURKE delivered the judgment of the court, with
opinion. Justices Birkett and Spence concurred in the
judgment and opinion.
1 Plaintiff, Terrance L. Falge, filed this negligence action
in the circuit court of Du Page County against defendant,
Lindoo Installations, Inc. (Lindoo), seeking damages for an
injury he sustained in a work-related accident. On August 7,
2012, plaintiff was working for Lindoo when a bundle of
shelving shifted and trapped his right index finger against a
forklift. Plaintiff was employed by Labor Ready Midwest, a
temporary staffing agency, and, on the date in question, was
assigned by Labor Ready to work for Lindoo. Plaintiff filed
for workers' compensation benefits from Labor Ready and
filed the present suit against Lindoo. Lindoo filed a motion
for summary judgment under the exclusive-remedy provision of
the Workers' Compensation Act (Act) (820 ILCS 305/5(a)
(West 2012) (employee has no common-law right to recover
damages other than those provided by the Act)). Lindoo
alleged that it was a "borrowing employer" and
plaintiff was a "loaned employee" at the time of
the accident and that, therefore, Lindoo was entitled to the
protections of the Act's exclusive-remedy provision. See
820 ILCS 305/1(a)(4) (West 2012) (borrowing employers are
covered by the Act). The trial court granted Lindoo's
motion. On appeal, plaintiff argues that summary judgment was
improper because there was a question of material fact as to
whether Lindoo was a borrowing employer and thus was entitled
to invoke the exclusive-remedy provision. We affirm.
2 I. BACKGROUND
3 The following is taken from the pleadings, depositions, and
affidavits on file. On August 7, 2012, plaintiff was employed
by Labor Ready, which provides permanent and temporary
employees to its clients. Once Labor Ready places an employee
with a client, Labor Ready expects that the client will
supervise, direct, and control the work of that employee.
Upon placement, Labor Ready notifies an employee that he or
she should report to the client's location and that he or
she will be under the supervision and direction of the client
upon arrival. Labor Ready provides basic training, but it
expects the client to provide further task-specific training
to the employee.
4 Lindoo was a client of Labor Ready. Lindoo installs
industrial storage shelves for its customers. On December 8,
2011, Labor Ready and Lindoo entered into a national
contract, pursuant to which Labor Ready supplied temporary
employees. The national contract provides, in relevant part:
"Customer [(Lindoo)] understands that Supplier [(Labor
Ready)] will not be providing supervision services for its
temporary employees under the Agreement and [Lindoo] shall be
responsible for supervising and directing the activities of
the temporary employees ***.
Supervision. [Lindoo] understands that [Labor Ready] will not
be providing services for its temporary employees under this
Agreement and that [Lindoo] shall be responsible for
supervision and directing the activities of temporary
5 In addition to the national contract, Lindoo entered into a
contract with Labor Ready's Aurora, Illinois, office on
May 4, 2012 (local contract). The local contract provides, in
"Customer Responsibilities. [Lindoo] must provide
adequate supervision; accurately record all hours worked,
including overtime; provide any meal and rest breaks required
by law ***.
Since our workers will be under your supervision, they need
to be included in your safety and health program and you are
required to comply with safety regulations and provide any
necessary site-specific safety training and equipment."
6 Maria Hernandez, who was the branch manager of Labor
Ready's Aurora office, testified at her deposition that
plaintiff went to work for Lindoo as Labor Ready's
employee. Hernandez stated that both the national and local
contracts were in force on the date of plaintiff's
accident. Consistent with the terms of the contracts, Labor
Ready expected that Lindoo would supervise, direct, and
control plaintiff's work. Stefanie Miller, Lindoo's
office manager and signatory on the contracts, testified that
a Labor Ready temporary employee assigned to Lindoo is under
Lindoo's supervision, direction, and control. Miller
stated that Lindoo sets the work schedule for Labor Ready
employees when they work for Lindoo and that the Labor Ready
employees work the same hours as Lindoo's employees.
Hernandez and Miller both testified that Lindoo has the right
to fire any Labor Ready employee from working for Lindoo.
7 On the day of the accident, Labor Ready told plaintiff to
report to Lindoo and gave him a brief description of the work
that he was to perform for Lindoo. When he arrived at Lindoo,
plaintiff and five Lindoo employees were assigned to assemble
and install industrial storage shelves at a Benjamin Moore
& Co. warehouse. Plaintiff testified that there did not
appear to be any "direct" supervisors from Lindoo
actually directing the work and that he instead took
directions from the Lindoo employees in setting up the
shelves. It was plaintiff's understanding that he was to
follow their directions while ...