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Falge v. Lindoo Installations, Inc.

Court of Appeals of Illinois, Second District

March 24, 2017

TERRANCE L. FALGE, Plaintiff-Appellant,

         Appeal 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 employees."

         ¶ 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 part:

"Customer Responsibilities. [Lindoo] must provide adequate supervision; accurately record all hours worked, including overtime; provide any meal and rest breaks required by law ***.

         Safety. 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 ...

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