A&R Janitorial v. Pepper Construction Co.
96 N.E.3d 479
Ill. App. Ct.2017Background
- Teresa Mroczko was injured at work on August 17, 2012; her employer A&R Janitorial paid over $342,000 in workers’ compensation and filed a timely subrogation suit under 820 ILCS 305/5(b) on August 14, 2014 against third-party contractors.
- Mroczko filed her own personal‑injury suit against some of the same defendants on June 15, 2015, more than two years after the injury; that suit was ultimately dismissed with prejudice for being time‑barred and she did not appeal.
- After her individual suit was dismissed, Mroczko sought to intervene in A&R’s timely subrogation action, alleging inadequate representation because the employer might not pursue full non‑economic damages.
- The trial court denied intervention, relying on res judicata (claim preclusion), concluding Mroczko’s dismissed personal suit barred her intervention; the court entered a Rule 304(a) order and Mroczko appealed.
- While the appeal was pending, A&R amended its complaint to seek non‑economic damages and later settled with defendants; the appellate court granted judicial notice of relevant trial documents.
Issues
| Issue | Plaintiff's Argument (A&R / Mroczko) | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars Mroczko from intervening in A&R’s timely subrogation suit | Mroczko: res judicata should not bar intervention; employer seeks more than indemnity and Mroczko’s interests may be inadequately represented | Defendants: Mroczko’s dismissed, untimely personal suit is a final judgment on the merits and precludes intervention | Reversed: res judicata does not automatically bar intervention here because A&R timely sought non‑economic damages and A&R was not a party to Mroczko’s dismissed action |
| Whether Sankey Brothers controls and requires denial of intervention | Mroczko: Sankey is factually different because employer here sought pain and suffering; she retains an interest | Defendants: Sankey supports claim preclusion against intervenor | Sankey distinguishable; court found Sankey’s facts different and not controlling |
| Proper legal standard for evaluating intervention | Mroczko: Code of Civil Procedure §2‑408 governs and court must assess timeliness, adequacy of representation, and interest | Defendants: res judicata/resolution of prior suit dispositive | Court: intervention governed by §2‑408; trial court abused discretion by failing to apply those statutory factors |
| Scope of participation if intervention allowed | A&R: Mroczko should not control litigation even if allowed to intervene | Defendants: (implicit) limit intervenor’s ability to relitigate time‑barred issues | Court: if intervention granted on remand, trial court may limit intervenor’s participation under §2‑408(f) |
Key Cases Cited
- Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (Ill. 1996) (elements of res judicata/claim preclusion)
- Sankey Brothers, Inc. v. Guilliams, 152 Ill. App. 3d 393 (Ill. App. Ct. 1987) (denial of intervention where employee’s tort claims were time‑barred)
- DeLuna v. Treister, 185 Ill. 2d 565 (Ill. 1999) (effect of dismissal for procedural deficiency; not controlling here)
- Madison Two Associates v. Pappas, 227 Ill. 2d 474 (Ill. 2008) (where a statute is silent on procedure, Code of Civil Procedure governs intervention)
- Bernardini v. Home & Automobile Insurance Co., 64 Ill. App. 2d 465 (Ill. App. Ct. 1965) (subrogation does not bar employee recovery for pain and suffering)
- Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill. 2d 273 (Ill. 1954) (relation‑back/amendment issues in employer subrogation context)
- Echales v. Krasny, 12 Ill. App. 3d 530 (Ill. App. Ct.) (permitting intervention/amendment when justice requires; factually distinguishable)