from the Circuit Court of Du Page County, No. 11-L-306; the
Hon. Dorothy French Mallen, Judge, presiding.
C. Bruce, of Power Rogers & Smith, L.L.P., of Chicago,
Donohue Brown Mathewson & Smyth LLC, of Chicago (J. Kent
Mathewson, Karen Kies DeGrand, and Timothy L. Hogan, of
counsel), for appellee.
JUSTICE BURKE delivered the judgment of the court, with
opinion. Justice Birkett concurred in the judgment and
opinion. Justice Zenoff dissented, with opinion.
1 Plaintiff, Michael Hiatt, appeals an order of the circuit
court of Du Page County, granting summary judgment in favor
of defendant, Illinois Tool Works (ITW). He also appeals
certain orders that were in the procedural progression to
that final order. For the reasons that follow, we affirm.
2 I. BACKGROUND
3 Plaintiff was employed by Western Plastics, Inc. (Western
Plastics). In October 2007, he sustained serious injuries at
work while cleaning a machine. Plaintiff filed suit against
multiple parties. All defendants other than ITW either were
dismissed or entered into settlement agreements with
plaintiff. Plaintiff advanced three legal theories against
ITW: (1) ITW was engaged in a joint venture with Western
Plastics, (2) ITW retained control over Western Plastics, and
(3) ITW had actual or constructive knowledge that the machine
at issue was unreasonably dangerous. In January 2014, the
trial court granted ITW's original motion for summary
judgment, finding that there were no genuine issues of
material fact with respect to any of plaintiff's
theories. Additionally, the court sua sponte
determined that, even if ITW were engaged in a joint venture
with Western Plastics, the exclusive-remedy provision of the
Workers' Compensation Act (Act) (820 ILCS 305/1 et
seq. (West 2014)) would prohibit plaintiff's
recovery. That provision states, in pertinent portion:
"No common law or statutory right to recover damages
from the employer, his insurer, his broker, *** 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 ***." Id. § 5(a).
4 In December 2014, this court reversed the summary judgment
and remanded the matter for further proceedings. Hiatt v.
Western Plastics, Inc., 2014 IL App (2d) 140178, ¶
1 (Hiatt I). Although we agreed that summary
judgment was appropriate with respect to plaintiff's
retained-control and unreasonably-dangerous-machine theories
(id. ¶¶ 117, 121), we held that there was
a genuine issue of material fact as to whether ITW and
Western Plastics were engaged in a joint venture
(id. ¶ 102).
5 We also determined that the trial court erred in sua
sponte raising the issue of the exclusive-remedy
provision of the Act. Id. ¶ 105. We noted that
"[t]he exclusive-remedy provision is an affirmative
defense and is forfeited if not timely raised."
Id. Furthermore, we explained, a defendant might
make a strategic decision not to assert that defense.
Id. Given that the parties took more than 40
depositions during more than five years of motion practice
and discovery, we reasoned that, "[c]learly, ITW made a
strategic decision not to assert the exclusive-remedy
provision as a defense, in the hope that it could avoid
liability altogether by defeating plaintiff's tort
claim." Id. ¶ 106. We added that,
"[i]f ITW were permitted to raise the exclusive-remedy
provision as a defense at this late stage, despite its
earlier decision not to assert the defense, then plaintiff
would be prejudiced." Id. While we recognized
that an appellee generally may urge on appeal any point in
support of the trial court's judgment, so long as the
factual basis for that point was before the trial court
(id. ¶ 107), we determined that such rule did
not apply here:
"As we have said, ITW chose to litigate this case by
defending against plaintiff's tort claim on the merits.
Having made the strategic decision not to raise the
affirmative defense of the exclusive-remedy provision, it
cannot now change its theory on appeal."
Id. ¶ 108.
6 ITW did not file a petition for rehearing in this court. It
did, however, petition our supreme court for leave to appeal.
That petition was denied. Hiatt v. Western Plastics,
Inc., No. 118851 (Ill. May 27, 2015).
7 On remand to the trial court, plaintiff filed a one-count
seventh amended complaint against ITW. In February 2016, ITW
filed its answer along with its affirmative defenses. As its
third affirmative defense, ITW asserted that it was immune
from liability pursuant to the exclusive-remedy provision of
8 Plaintiff moved to strike ITW's exclusive-remedy
defense as barred by Hiatt I under the
law-of-the-case doctrine. In its memorandum opposing
plaintiff's motion, ITW argued that Hiatt I
"in no way purported to foreclose litigation of the
[exclusive-remedy] defense on remand." ITW urged the
trial court to analyze its right to raise a new defense
"under the ordinary liberal rules regarding amendment of
pleadings." To that end, ITW insisted that plaintiff
would have a sufficient opportunity to rebut the new defense
and would not be surprised or prejudiced. Nor, ITW claimed,
would the defense necessitate conducting additional
9 While the parties briefed plaintiff's motion to strike
the exclusive-remedy defense, ITW filed a motion for summary
judgment. According to ITW, plaintiff faced a dilemma.
Specifically, ITW maintained, if there was no joint venture
between Western Plastics and ITW, then ITW would not be
liable for plaintiff's injuries. If, on the other hand,
there was a joint venture, then ITW would be shielded by the
exclusive-remedy provision of the Act.
10 In his memorandum opposing summary judgment, plaintiff
reiterated his position that Hiatt I precluded ITW
from asserting the exclusive-remedy defense. In any event,
plaintiff argued, the exclusive-remedy provision did not
apply, given that ITW did not pay for his workers'
compensation benefits. Plaintiff also moved to strike the
exhibits that were attached to ITW's motion for summary
judgment, for lack of foundation.
11 Following a hearing on August 10, 2016, the trial court
denied plaintiff's motion to strike ITW's
exclusive-remedy defense. The trial court recognized that it
was obligated to follow this court's mandate. The
mandate, the trial court noted, did not contain any
particular directions, apart from indicating that the case
was remanded for further proceedings. When a mandate does not
contain directions, the trial court explained, it is
necessary to look to and follow the appellate court's
holdings. The question for the trial court to answer was,
"what did the Appellate Court rule on whether or not the
defendant could raise that issue in the Trial Court upon a
12 After examining the disposition in Hiatt I, the
court stated as follows:
"And the way I read this, because there's nothing in
those paragraphs anywhere in the mandate or in the opinion
that even discusses whether ITW could raise that on remand. I
read this and the discussion of the cases by the Appellate
Court to be discussing whether or not they would exercise
their right to affirm the Summary Judgment based on an
alternative basis that was first raised in the Appellate
Court and that it would be prejudicial to the plaintiff to
allow that to occur in the Appellate Court. And I think it
clearly says it cannot now change its theory on appeal;
that's it, on appeal.
So in reading this opinion, as I said multiple times, and
dissecting it and looking at the cases that they rely on, I
am finding that the interpretation of this opinion which I
readily admit I have to follow is that it, the Appellate
Court declined to affirm the entry of Summary Judgment on the
basis of exclusive remedy of the Worker's Comp Act
[sic] because it would be prejudicial to the
plaintiff to consider that for the first time on appeal. But
they did not speak and it's completely silent as to
whether the defendant could raise that affirmative defense in
the Trial Court upon remand.
And, therefore, on the basis of the law of the case, the
court is denying the Motion to Strike the Third Affirmative
13 Having rejected plaintiff's law-of-the-case argument,
the court turned to the issue of whether it would be
"too late and prejudicial to the plaintiff" for ITW
to raise the exclusive-remedy defense on remand. After
considering the factors outlined in Loyola Academy v.
S&S Roof Maintenance, Inc., 146 Ill.2d 263 (1992),
the court allowed ITW to raise the defense. The court granted
plaintiff's motion to strike two of the exhibits
supporting ITW's motion for summary judgment. Over
plaintiff's objection, however, the court also granted
ITW leave to file documents to authenticate those exhibits.
The matter was continued for a hearing on ITW's pending
summary judgment motion.
14 Plaintiff moved the court to reconsider its order denying
his motion to strike ITW's exclusive-remedy defense. On
December 15, 2016, the court denied that motion. On July 19,
2017, the court granted ITW's motion for summary
15 Plaintiff filed a timely notice of appeal from three
orders: (1) the August 10, 2016, order denying his motion to
strike ITW's exclusive-remedy defense; (2) the December
15, 2016, order denying his motion to reconsider the August
10 order; and (3) the July 19, 2017, order granting summary
judgment in favor of ITW.
16 II. ANALYSIS
17 Plaintiff advances four arguments: (1) pursuant to the
law-of-the-case doctrine, ITW was precluded from raising the
exclusive-remedy defense; (2) the Loyola factors did
not support the trial court's decision to allow ITW to
raise the defense; (3) the court erred in allowing ITW
multiple "bites at the apple" in seeking summary
judgment; and (4) summary judgment was improper because the
evidence showed that ITW did not contribute to
plaintiff's workers' compensation premiums.
18 A. Law of the Case
19 Plaintiff contends that, pursuant to the law-of-the-case
doctrine, ITW was precluded from raising the exclusive-remedy
defense. "The law-of-the-case doctrine limits
relitigation of a previously decided issue in the same
case." Diocese of Quincy v. Episcopal Church,
2016 IL App (4th) 150193, ¶ 28. This means that
"questions of law decided on a previous appeal are
binding on the trial court on remand as well as on the
appellate court on a subsequent appeal." People ex
rel. Madigan v. Illinois Commerce Comm'n, 2012 IL
App (2d) 100024, ¶ 31. The interests promoted by the
doctrine include protecting the parties' settled
expectations, ensuring uniformity of decisions, maintaining
consistency during the course of a single case, effectuating
the proper administration of justice, and bringing litigation
to an end. Radwill v. Manor Care of Westmont, IL,
LLC, 2013 IL App (2d) 120957, ¶ 8. The doctrine
also maintains the prestige of the courts by avoiding
"contrary opinions on the same issue in the same
case." Madigan, 2012 IL App (2d) 100024, ¶
32. Determining whether the law-of-the-case doctrine applies
is a question of law, and we review the trial court's
ruling de novo. Rommel v. Illinois State Toll
Highway Authority, 2013 IL App (2d) 120273, ¶ 14.
20 The parties disagree over whether the mandate in Hiatt
I prevented ITW from filing an exclusive-remedy defense
on remand. Plaintiff contends that the mandate in Hiatt
I precluded ITW from filing an amendment to raise the
exclusive-remedy defense. ITW responds that nothing in the
opinion prevented the trial court from allowing it to amend.
Accordingly, we must address whether the mandate prevented
ITW from filing amended defenses.
21 In reversing the trial court in Hiatt I, this
court concluded: "For the foregoing reasons, we
reverse the judgment *** and remand for further
proceedings." (Emphasis added.) Hiatt I, 2014
IL App (2d) 140178, ¶ 123. After a judgment is reversed
and the cause is remanded, the trial court can hold only such
further proceedings as conform to the judgment of the
appellate tribunal. Nye v. Nye, 411 Ill. 408, 413
(1952). Whether our mandate precluded the trial court from
allowing ITW to amend its affirmative defenses is a question
of law, which we address de novo. Clemons v.
Mechanical Devices Co., 202 Ill.2d 344, 352 (2002).
22 We observe that in Hiatt I we did not explicitly
order the trial court not to allow ITW to amend its defenses.
However, a reviewing court is not required to state specific
directions in an order reversing a judgment and remanding a
cause. In such a case, the court to which the cause is
remanded must examine the reviewing court's opinion and
proceed in conformity with the views expressed in it.
Id. at 353. In Clemons, the supreme court
noted that the trial court will in some cases be required to
allow the amendment of pleadings, even when the reviewing
court has not explicitly so ordered:"
'When a judgment is reversed and the cause remanded with
directions to proceed in conformity to the opinion then
filed, and it appears from the opinion that the grounds of
reversal are of a character to be obviated by subsequent
amendment of the pleadings or the introduction of additional
evidence, it is the duty of the trial court to permit the
cause to be re-docketed and then to permit amendments to be
made and evidence to be introduced on the hearing just as if
the cause was then being heard ...