*1 objections “limited to a consideration specifically Board is Electoral 68; Kozel, at Wise 126 Ill. 2d papers.” nomination to a candidate’s words, inquiry its is limited man, 257. In other App. 3d at objections compiled objections; were validity whether those of those the Election Code or other of article employees State violation issues of simply not relevant to the of the Election Code sections nominating the formal papers satisfied the Candidates’ whether petition contained whether the requirements in section 10—4 and 2 ballot. The placed on the November enough signatures valid to be request. subpoena correctly rejected Electoral Board Candidates’ (finding the Electoral Board Wiseman, Ill. 3d at 257-58 See objectors requested by relevant subpoenas refused to issue properly inquiry). beyond scope issues its is a place mindful that access to a on the ballot substantial
We are
Johnson, 147 Ill. 2d
right
lightly.
be denied
v.
should not
Welch
However,
ques
not
REID, KARNEZIS, RJ., J., concur. of William GRAY, Independent Adm’r of the Estate Indiv. and as VALERIE SYSTEMS, Gray, Deceased, Plaintiff-Appellant, RESTORATION v. NATIONAL Defendants). al., al., et INC., (Degussa Corporation et Defendants-Appellees Division) (5th 1 - 01-4062 First District No. January 12, Rehearing 2005. April denied
Opinion filed *3 PJ., CAMPBELL, dissenting part. concurring part O’Callaghan PC., Chicago (Joseph O’Callaghan, Colleagues, & of Michael counsel), appellant. for of (Nichole
Meyer, Kreuzer, Cores, Johs Adam S. Esp & of Wheaton L. counsel), Kreuzer, appellee Systems, for Inc. of National Restoration (Brian Schroeder, Gloor, Cassiday, Chicago & A. David C. Van Schade of Ivansek, counsel), Corporation. Dyke, appellee of Glenrock and Donald E for opinion delivered the of the court: JUSTICE REID individually special and as plaintiff, Gray (Gray), Valerie (decedent), Gray, William deceased administrator estate of family action, wrongful death and brought an action for survival defendants, National Restoration expense against action (National Restoration), America, Inc. Crenova, Inc., Hills Inc. f/k/a (Hüls),1 Corporation and the (Glenrock), Glenrock damages recover injuries by husband, fatal decedent, her resulting incurred explosion from an at the decedent’s workplace.
Gray appeals from the following orders of the circuit court of Cook (1) County: an May granted order of National Gray’s Restoration’s motion complaint to dismiss second amended 619(a)(9) pursuant to section of the Illinois Code of Civil Procedure 2— (735 (West 2002)) 619(a)(9) (2) ILCS prejudice, with an order of 5/2 — 13, 2000, September granted summary judgment in favor of Hüls (3) as to portions Gray’s certain second complaint, amended an order September 12, 2000, granted Glenrock’s section 2—619 motion to dismiss Gray’s second complaint prejudice, amended portion and the of a June Gray’s order that denied motion for leave to allow her third complaint amended stand Glen- rock and that also struck Glenrock from third amended (4) complaint, a September order that denied Gray’s mo plead punitive damages. follow, tion For the reasons that we reverse part, the decision of the trial part, court affirm it in and remand proceedings. the cause for further
BACKGROUND (National Resurfacing, National Inc. Resurfacing), and National provided Restoration repair, waterproofing concrete caulking for a project services restoration at Days located Inn Hotel in Chicago, Illinois, in July During a deposition, Reagan Thomas F. (T. Reagan) he president stated that was the of National Restoration and oversaw Inn Days project. T. Reagan said that at the time of occurrence, employee decedent was an of National Restora- tion. (F.
During a deposition, Reagan Reagan), Reagan’s Frank T. father and also an owner of Resurfacing, National Restoration National although stated that Resurfacing National Restoration and National separate entities, were legal two he and companies his son ran two as if they Reagan were one. F. stated the decedent was an employee Resurfacing of National at the time the incident. F. Reagan’s statement supported a W2 form for the decedent which was from Resurfacing.
Hüls waterproofing manufactures concrete product called Chem- *4 original complaint Degussa 1Tlaintiff s Corporation named aas defendant. Degussa apparently changed its business name association numerous and/or (Creanova, Inc., Sivento, Inc., Degussa Corporation, Kay Fries, times Hüls Inc.). Inc., Dynamit America, Corporation appeal, parties Nobel the On only America, corporation refer to as this Hüls Inc. including Chem- products construction sells
Trete BSM Glenrock to National Restora- BSM 20 BSM 20. Glenrock sold Chem-Trete Trete Inn Resurfacing Days project. for the tion and National July On Days project. Inn a at the laborer decedent worked attempted he to saw when fatally injured was decedent BSM of Chem-Trete 55-gallon a drum that contained residue lid off exploded. drum LaFleur, the decedent’s testimony that Nicholas Deposition reveals Dumpster to load a with had instructed the decedent supervisor, direct Dump- which led to the of chute from the second floor debris use a McLin, coworker, spoke later, Several decedent’s Gerald ster. hours decedent, he decedent away, as McLin turned to walk saw with away eight from pick up approximately McLin was feet a saw. When loud cut into a drum and then heard a Gray, McLin heard saw flames. explosion. McLin turned around and saw part in of 70% ethanol Chem-Trete BSM consists relevant every container of Chem-Trete 10% methanol. Hüls attached label large a flame inside and displays BSM 20 red diamond with following LIQUID.” The also reads: “FLAMMABLE label contains warnings: additional
“WARNING! *** LIQUID FLAMMABLE VAPOR. *** AND SPARKS, HEAT, AND FLAME. *** KEEP AWAYFROM residue, label emptied product Since retain follow containers warnings emptied. even after container is Chemical, Safety Using
Before Read Material Data Sheet.” This in Reagan July F. stated that he informed the decedent 1995 that (MSDS) safety the material data sheet for the Chem-Trete BSM 20 “job and that read it anytime. was box” the decedent could LaFleur confirmed the MSDS for the Chem-Trete BSM was job anytime. Reagan could read it T. box that the decedent job also confirmed the MSDS box. was explosion, photographs After the were taken of the drum that text pictures decedent had cut with saw. The revealed some missing label, warnings, contain- emptied from the but that the “Since residue, warnings even container product ers retain follow label SPARKS, HEAT, AND emptied,” and “KEEP FROM AWAY FLAME,” label, red diamond appear along large, on the with the warning LIQUID.” “FLAMMABLE (ap- compensation
On a worker’s claim October filed *5 plication adjustment 57531), for No. 95 WC with the State of Illinois against Industrial Resurfacing Commission “National Inc. d/b/a National Systems” damages Restoration for associated with decedent’s fatal accident. (1) 25, 1997, Gray against:
On June filed suit “National Restora- (2) Systems, Inc., Resurfacing tion Inc.,” negligence, National for f/k/a (3) negligence Hüls for and strict and liability, American States Insur- Co., McAuliffe, Ltd., ance Jr., Weidner & Leamy, and Richard J. for spoliation of evidence. July 21, 1997,
On Gray filed her first complaint. amended Once again complaint named Systems, Inc., “National Restoration f/k/a Inc.,” Resurfacing a Furthermore, as defendant. Gray added defendants, seven additional which included Glenrock for strict li- ability and negligence. September 30, 1997,
On Systems, Inc., “National Restoration f/k/a National Resurfacing (collectively, Inc. ‘National’),” filed a motion to Gray’s dismiss first amended complaint pursuant to section 2—619 of (735 619(a)(9) (West the Illinois of Code Civil Procedure ILCS 5/2 — 2002)) based on the remedy provision exclusive of the Workers’ (820 305/5(a) (West 2002)) (the Compensation Act ILCS Act), which states: “No common or statutory right damages law to recover from the ***
employer injury any by employee or death sustained while engaged in the duty employee, line of his as such other than the compensation provided, any herein employee is available to iswho provisions Act, covered of any wholly this to or partially one him, dependent upon legal representatives estate, any his one otherwise entitled damages injury.” to recover for such On December the trial court denied National Restora- tion’s prejudice. motion without The trial court parties advised the if any money collected from National Restoration in the compensation proceeding, worker’s her common law action be would dismissed.
Gray’s against Jr., claims Leamy, Richard J. were and settled 2, 12, on April April dismissed against On claims McAuliffe, Ltd., American States Insurance and & Co. Weidner were settled and dismissed. 14, 2000, Gray
On February complaint filed second amended corporation,” “National an Restoration Illinois complaint, Gray Hüls and Glenrock. In the alleged that Hüls negligently incorporate labeling Glenrock failed to on Chem-Trete (1) BSM 20 drums of: explosive potential, that would warn users its (2) (2003), § violation of 29 C.F.R. the nature and 1910.1200© power equipment explosion from of the risk and harm extent vicinity in the sparks operated on or producing heat or capable addition, Gray alleged that Hüls Glen- 20. In Chem-Trete BSM (1) provide adequate warn- failed carelessly negligently: rock give would notice of BSM 20 that ings to of Chem-Trete users vapors BSM 20 explosive potential of Chem-Trete concealed risk (2) drums; Restora- sold to National remaining empty in purportedly the abil- investigating of Chem-Trete BSM 20 without quantity tion use, dispose of such apply, store and ity of National Restoration (3) Restoration to ascertain whether National safely; chemical failed regulations in of Chem-Trete applicable federal its use complied with (5) (4) 20; product; their sold approve BSM failed users of persons qualified ap- not drums of Chem-Trete BSM 20 to were who plicators the chemical. approved
On the Industrial Commission a settle- March *6 in Gray’s compensation ment worker’s claim. The settlement contract (settlement contract) petition lump-sum and order was entitled “Vale- Gray, Gray, of v. rie widow William deceased National Restoration Systems, Resurfacing, Inc.” The settlement Inc. National a/k/a contract stated: Restoration, Gray’s employer,
“Respondent, William National $220,000 petitioner and to in full and settle- pay accept to final any Compensation ment claims of all under the Worker’s injuries allegedly Occupational Disease Acts all accidental herein incurred as described ***.” On Inc. March “National Restoration f/k/a 619(a)(9) Inc.,” Resurfacing,
National filed to a section motion 2— the Gray’s complaint dismiss second amended based on settlement (820 remedy contract and the the Act ILCS provision exclusive of (West 2002)). Section 11 of Act states: the 305/11
“§ The compensation provided, together 11. herein with the provisions Act, responsibility of this shall be measure the of the of any any enterprises in or employer engaged of the businesses Act, any employer in of or of is not enumerated Section 3 this who any businesses, engaged enterprises in such but who elected or has provide injuries pay compensation to for accidental sustained by employ- in the of any employee arising out of and course according Act, ment to provisions to of this and whose election Act, any of his by continue under this has not been nullified action (West employees provided for in Act.” ILCS this 305/11 2002). 13, On to second March Glenrock moved dismiss 619(a)(9) pursuant complaint amended to section based on 2— 20; merely that: of facts Glenrock was distributor Chem-Trete BSM Glenrock receives drums of Chem-Trete BSM 20 from Hüls sealed containers and not does alter drums or the BSM Chem-Trete 20 in any manner; Glenrock served as a merely conduit Hüls between user, case, Restoration; the end in this Glenrock neither determines MSDS, the form or content of the label and the nor does it investigate, approve train purchase customers who Chem-Trete 20; BSM and require Hüls does not certify Glenrock to its custom- ers are knowledgeable application the use and of Chem-Trete BSM August 2000, Gray response On filed a motion Glenrock’s claiming deposition dismiss testimony Watson, of Michael officer, suggested Glenrock that Glenrock did not provide National Restoration with the MSDS. also attached a by document issued Hüls regarding Chem-Trete BSM 20 entitled “Product Data Test Information.” Dated November following months decedent’s injury, argued fatal retroactively imposed document duty upon Glenrock to sell BSM only Chem-Trete to approved ap- plicators of the chemical.
Gray also cited the affidavit Ed McGettigan, Hüls’ national manager, sales and claimed that this affidavit suggested that Glenrock was required certify that National Restoration was aware contents the Chem-Trete BSM 20 affidavit, label MSDS. In this McGettigan stated: require Company any
“Hüls did not way Glenrock to in certify regarding knowledge Glenrock’s customers the customer’s application nature of Chem-Trete BSM or the product beyond any product national standards contained in the labeling affixed to the metal drums Hüls America or contained in the Safety compliance Material Data Sheets issued government Federal regulations.” (1) May
On *7 the trial court entered an order it: wherein accident, determined that at the time of the National Restoration was (2) the employer, granted decedent’s immediate National Restoration’s 619(a)(9) (3) section to prejudice, motion dismiss with stated 2— that order appealable.” was “not final and 23, 2000,
On June filed summary judgment Hüls a motion for regarding Gray’s negligence claims. Hüls motion attached to the color of the BSM label copy Chem-Trete to illustrate that label LIQUID VAPOR,” warnings, contained the “FLAMMABLE AND FLAME,” HEAT, SPARKS, emptied “KEEP AND AWAYFROM “Since product residue, warnings containers retain follow label even stated, that “FLAM- emptied” large container is and the red diamond LIQUID.” MABLE expert, affidavit an response to Hüls’ attached the of
Gray’s motion he affidavit, compared that Kretvix. In the Kretvix stated Robert postoccurrence photographs Hüls’ label attached to motion color that the drum, photographs indicated postoccurrence of and the LIQUID the label was not on warning “FLAMMABLE AND VAPOR” admitting the drum sawed, thereby that of the drum that warnings. the other displayed itsof August 2, 2000, Hüls filed a motion to withdraw sections
On adequacy the issue of the summary judgment for on motion court Gray’s objection, the trial warnings. August On over summary its motion of granted portions Hüls’ motion to withdraw of judgment. arguments Hüls’ September trial court heard on
On claim summary judgment. Gray’s The trial court addressed motion that text was postoccurrence photographs that the indicated certain that decedent The missing from the label of the drum sawed. court stated: your [plaintiffs] theory, [are]
“Even there the words under still label, destroyed emptied on the since containers contain drum’s reside, product warnings empty; follow label after container is big sign there is flame. still the flammable with the ijc # empty does can have warning It have the container it, you warning residue in should follow the label even after empty. the container is you warning
It does have the have to read the material safety warning vapors, data sheet. It does have the that there are warning away sparks. and it to from That’s keep does have what’s on no what exists.” there matter granted part it The trial then an order wherein court entered The Hüls’ “as part and denied Hüls’ motion. court denied motion warnings; foreseeability, open and obvi- preemption, adequacy to granted allega- Hüls’ ous.” The trial court then motion as certain it in the complaint, tions in second amended delineated order. 13, granted the trial Glenrock’s September
Also court prejudice. motion to The trial court found that National dismiss with Gray’s asser- rejected Restoration had the MSDS and as a nonissue required certify National Restoration tions that Glenrock was label and MSDS and that Glenrock was aware the contents required approve applicator. Restoration as an stated, assumption duty, you voluntary trial court “to be held on a something. here.” Nobody anything have to do did *8 354 13, 2001, third Gray complaint. Despite
On June filed a amended the fact the trial Gray’s negligence allegations court dismissed against Glenrock, Gray again alleged negligence against both Hüls Gray alleged Glenrock. that Hüls and Glenrock violated several Oc- (OSHA) cupational Safety and regulations Health Administration in particulars. numerous 14, 2001, Grey
On sought plead damages June leave to punitive against 20, 2001, On Hüls. June the trial court struck the claims Gray’s complaint third amended that were Glenrock. After a attempts series of to following amend this motion and a the hearing, September 28, trial court denied the motion on 2001. 10, 2001, Gray
On October filed a motion to of vacate denial plead punitive damages, her motion leave to for argued filing for first time that the motion was “mooted” her of complaint. summarily fourth amended The Gray’s trial court denied Gray voluntarily motion and requested dismissed the case. Hüls statu- tory costs and the trial court instructed Hüls to request- file a motion ing same.
On Hüls filed October a motion for costs and trial hearing 8, court scheduled the motion on November On 2001, 7, notified November Hüls the trial court and by letter 2001, it 8, would withdraw its motion for costs. On November Gray filed appeal a notice of case continued November 2001. On November the trial court allowed Hüls to motion withdraw its for costs.
ANALYSIS I The question first we will address on review is whether the trial court erred when it determined that National Restoration was employer decedent’s immediate second dismissed amended 619(a)(9) complaint pursuant prejudice. to section 2— A legal section 2—619 motion to dismiss admits the of sufficiency plaintiffs allegations but asserts affirmative matter avoids Swanson, App. defeats the claim stated. Peetoom v. 334 Ill. 3d 526 purpose of a motion section 2—619 to dismiss to afford litigants disposing easily proved a of of law and means issues of issues case, disputed questions fact at of fact for reserving of the outset of a Gibson, Ill. atrial. Zedella v. 2d 185 Therefore, argument, on a section 2—619 a trial ruling court Zedella, may affidavits. 165 Ill. 2d pleadings, depositions consider pursuant 185. If is dismissed section 2—619 at a cause action argument, questions appeal genuine are whether a issue judg- the defendants are entitled material fact exists whether Zedella, Ill. 2d The dismissal ment as matter of law. at 185-86. subject under 2—619 is to de novo review. complaint section Peetoom, Ill. 3d at 526. Co., (1976), v. Zoller Coal We find Bell & Laffoon regard Laffoon, plaintiffs In
to be to this matter. instructive provide did not employees subcontractors that were the immediate *9 plaintiffs Each of the suffered an compensation worker’s insurance. working jobs. Consequently, the injury respective their while in the general pay injured case were forced to contractors each compensation that the plaintiffs question claims. The worker’s Laf 5(a) Act provided faced with section of the court was was whether foon general immunity litigation by the from the contractors with further plaintiffs, they paid compensation since the worker’s claims. plaintiffs’ held: court Laffoon 5(a) “Accordingly, interpret conferring we section im- must
munity upon employers only
statutory
from common law or
actions
damages by
employees.
their
To
immediate
hold otherwise
present
light of the
factual situations would be violative of the
injured
protection
employee’sright
process
equal
to due
added.)
(Emphasis
Laffoon,
laws.”
Here, grant the trial decision to National Restoration’s court’s question motion of fact exists as to to dismiss was error because employee the decedent was an of either National Restoration whether that T. Re Resurfacing. testimony revealed Deposition National Restoration, agan, of National stated that decedent president an at employee was of National Restoration the time of accident. However, deposition, Reagan, an of both National in another E owner the decedent was Resurfacing, Restoration and National stated that an the accident. These employee Resurfacing of National at time of fact as the decedent’s clearly present statements an issue of to who was such, employer improper time of As it for the at the his death. trial to dismiss. grant court to National Restoration’s motion argues
In response, National Restoration the settlement agreement signed prevents which her from pursuing further disagree. relief reviewing from National Restoration. We After record, find agreement Gray signed we that the settlement only compensation settled the worker’s suit nothing more. The settle- prevent pursuing ment did not cannot her from further relief that she pursue is entitled to under the Act. argues judicial
National Restoration further that the doctrine estoppel prevents Gray maintaining from her common law cause of ac- prior tion National Restoration because she position took a during compensation Particularly, the worker’s claim. argues Gray argued Restoration that because that National Restora- tion employer suit, was the decedent’s in the compensation worker’s argue she cannot now that National Restoration was not employer. decedent’s judicial estoppel prevents party
The doctrine of from assert ing positions separate proceedings inconsistent to receive favorable Terminals, judgments in City each. Ceres Inc. v. Bank Chicago & Co., judicial Trust 259 Ill. 849-50 “The doctrine of estoppel provides party position that when assumes a certain in a legal proceeding, party precluded assuming from a contrary position a subsequent legal Wisbrock, proceeding. People v. App. 3d For ap N.E.2d the doctrine to *10 (1) (2) ply: party positions; positions the must have taken two the separate judicial quasi-judicial must have been taken in or administra (3) proceedings; tive intended trier party must have for the of fact (4) accept alleged support position; to the truth the facts in of the asserting position must party have succeeded in the first (5) it; positions received some benefit from two must be Wisbrock, 175, App. 223 Ill. at at 515.” inconsistent. 3d 584 N.E.2d (2000). Melka, 431, People 319 Ill. 3d 441 v.
Here, judicially estopped maintaining from Gray is not this against cause of because it is allowed by action National Restoration Here, Act, the provisions of the Act. under the National Restoration Gray injuries regard was decedent incurred liable to for the that the Furthermore, in proceedings. less of the stance that took those if Gray it is determined in the trial court on remand that National Resurfac accident, the Act ing employer decedent’s at the time the also for against to then file National Restoration common Gray allows suit by Act as negligence. interpreted law This is allowed under the Laf foon, Gray’s rights by application be abridged cannot in this judicial estoppel doctrine of instance. Gray’s that cause of action
Finally,
argues
National Restoration
maintains
Restoration
Specifically, National
by
judicata.
res
is barred
and the
compensation
pursue
worker’s
Gray’s decision
an inconsis-
advancing
her from now
precludes
subsequent settlement
of law.
litigation as a matter
position in this
tent
competent
court of
rendered
on the merits
judgment
A final
parties
subsequent suit between
as a bar to a
jurisdiction acts
judicata.
of res
under the doctrine
involving
cause of action
the same
290,
Park,
Ill. 2d
Park,
City Highland
v.
River
Inc.
litigate
requiring parties to
judicial economy by
promotes
judicata
Res
facts.
group
operative
arising out of the same
case all claims
one
The
School,
Ill. 2d
High
Rita
Nowak v. St.
actions,
first
but
decided
only
not
to what was
applies
doctrine
River
in that suit.”
have been decided
“those matters that could
also
Park, Inc.,
judicata apply: (2) action; merits; identity of causes of judgment on the there is an (3) Nowak, 197 Ill. privies. their identity parties there is an Park, 390; 2d at River at 302. pursu- not bar from further judicata
The doctrine of res does Restoration, if ing it is determined a suit National at the time of employer not the decedent’s National Restoration was the settlement Although paid accident. Restoration suit, bring- does not bar from compensation worker’s Laffoon, under right This of action is allowed ing a common law suit. as- Gray from herein judicata prevent and the of res cannot doctrine serting rights. her
II jurisdic that this court lacks argue Hüls and Initially, Glenrock her notice of Gray prematurely filed appeal tion to hear this because appeal. plaintiffs claims that the trial court dismissed
The record shows June without September against Glenrock 304(a) (155 Ill. 2d R. Rule finding pursuant Supreme Court that do not 304(a)), judgments final provides appeal from express trial makes an proceeding court dispose of an entire enforce- just delaying reason for either finding that there is no written October dismissed her case on appeal Gray voluntarily ment or or both. *11 immediately appeal- 10, 2001, orders final made these two 496, Inc., 2d 503 Realty Development, able. Dubina v. Mesirow (1997) (a prior all immediately appealable voluntary dismissal makes appealable). orders that were final but not 10, 2001, Also on October granted the trial court Hüls leave to file a motion for costs. Hüls filed the 17, 2001, motion on October and the motion was scheduled for hearing 8, on November 2001. On November 7, 2001, Hüls informed the trial Gray court and by letter it withdrew the 8, 2001, motion for costs. On November the trial court continued 14, 2001, the case to November addressing without status of Hüls’ motion. filed her notice appeal 8, on November 2001. The trial court entered an order withdrawing Hüls’ motion for 14, costs on November 2001. argue
Defendants
that disposal of Hüls’ motion for costs was neces-
sary in order to achieve
finality
the underlying
and, therefore,
action
the three orders did not become final and appealable until November
14,
However,
2000.
there is a distinction
necessary
between
claims and
claims that are incidental or collateral to an underlying action for the
purpose of determining jurisdiction. Motions for fees collateral to the
judgment do not affect the appealability
judgment.
of a final
Servio v.
Sales,
(1991).
Paul
Roberts Auto
Ill.
Costs
deposition
such as
fees are considered ancillary
litigation.
to the
Physi-
cians Insurance Exchange
Jennings,
v.
316 Ill. App. 3d
Here,
petition
Hüls’
for
primarily
costs
deposition
consisted of
costs and
filings, copies,
related
transcripts and
expenses
travel
related
to the depositions. Thus the resolution of
petition
Hüls’
for costs need
not have been resolved before this
appealable.
action became
See
Matthews,
Berger v.
Ill Next, Gray alleges that the trial court erred it entered an September 13, 2000, order on granted which it Glenrock’s section 2—619 motion to dismiss her second complaint amended prejudice and dismissed Glenrock from the case. second complaint alia, amended alleged, negligence inter against Glenrock for failing provide warnings labeling in violation regula- of OSHA tions, negligently approving users of Chem-Trete BSM 20 and for selling Chem-Trete persons BSM 20 to who were qualified applica- not tors of the product. alleged further that the trial court erred when it entered an January
order on
wherein it denied her motion for leave to
complaint against
allow her third amended
Glenrock and struck Glen-
rock from her third
complaint. Gray’s
amended
third amended
complaint repled
allegations
complaint.
her second amended
It
*12
the decedent of
negligently failed to warn
that Glenrock
alleged
also
regulations
20 in violation of OSHA
Chem-Trete BSM
dangers
the
of
Industrial
for Hazardous
American
Standard
and the
(ANSI
1994, 400.1—
Precautionary Labeling
Chemical’s
Z129.1—
1993).
section
above,
dismiss a claim based on
As noted
a motion to
2002))
(735
(West
ILCS
2—619 of the Code of Civil Procedure
5/2 — 619
af
allegations but asserts
legal sufficiency
plaintiffs
admits the
Peetoom, 334
or defeats the claim stated.
firmative matter
avoids
litigants
Ill.
section 2—619 is to afford
App.
purpose
3d at 526. The
of
at
easily proved
issues of fact
disposing
a means of
of issues of law
case,
fact for a trial.
reserving disputed questions
the outset of a
of
Zedella,
Therefore,
ruling
Ill. 2d at
on a section 2—619
165
and af
argument,
may
pleadings, depositions,
trial court
consider
a
Zedella,
fidavits.
In order a damages alleged to recover based on defendant’s negligence, plaintiff a allege prove must that the defendant owed duty a plaintiff, duty to the that the defendant breached that and that the breach the proximate plaintiffs injuries. was cause of the First (1999). Springfield Galman, & Bank Trust v. 188 Ill. 2d duty question determination of the existence a is of law to be McCoy resolved the v. 333 Ill. Chicago Housing Authority, court. App. 3d A there duty unequal to warn exists when is defendant, knowledge possessed knowledge, and the with such knows if might warning given. should know that harm occur no McCol- gan v. Environmental Control
Here, negligently failing provide as to the issue of Glenrock proper warnings concerning dangers 20, Gray of Chem-Trete BSM argues that the trial court committed error because there was an issue of fact as to provided whether Glenrock National Restoration with the MSDS Reagan, Chem-Trete BSM 20. The record reveals that T. Reagan F. and LaFleur all Chem-Trete stated that the MSDS for the job However, BSM 20 prior Gray sup- box to the accident. ported her complaint deposition testimony second amended with the Watson, of Michael manager secretary sales of Glenrock. In deposition, Watson’s nothing ship- he testified that there was ping respect delivery documentation to the of the Chem-Trete
BSM 20 from Glenrock to National Restoration which indicated that the MSDS was delivered. He type further testified that this of informa- normally shipping such, tion was included with the documents. As genuine issue material fact exists.
However, negligently as to the overall issue of Glenrock failing to provide adequate warnings, Gray has failed to demonstrate that Glen- possessed rock unequal knowledge regarding the Chem-Trete BSM 20. through The record demonstrates testimony of Michael sworn Watson, Glenrock, an officer of that Glenrock had no control over the design or manufacture of Chem-Trete BSM 20 and knowledge had no any alleged defect in product. Our review the record reveals that Glenrock received the Chem-Trete BSM 20 in sealed containers from Hüls and transferred the sealed containers end user. out,
As points Gray’s allegations Glenrock warnings that the inadequate label and the MSDS are consequence is of no to the duty part existence of a on the Gray alleged negligence of Glenrock. *13 against Glenrock, Here, liability. Gray not strict has failed to show possessed superior that Glenrock knowledge consequently and had a duty to warn dangers sawing decedent about the on a drum contain- ing vapors flammable of Chem-Trete BSM 20.
Next, Gray argues that Glenrock owed the decedent duty ap- to prove National Restoration applicator as an of Chem-Trete BSM 20. Gray provides relies on a document from Hüls which that Chem-Trete “approved applicators.” BSM 20 is available to The document to which refers, Gray Information,” entitled “Product Data and Test was is- sued 16 after injury. months the decedent’s fatal Postevent literature cannot be used Granberry to show the standard of care. v. Carbondale Clinic, S.C., Ill. App.
Also, Gray maintains duty that Glenrock owed the decedent a certify knowledge National’s of the contents of the Chem-Trete BSM Hüls, 20 label and Ed McGettigan, employee the MSDS. an testified require certify that Hüls did not Glenrock to that Glenrock’s custom- knowledgeable application ers were in the use and of Chem-Trete if required certify BSM 20. Even Hüls Glenrock to National Restora- MSDS, knowledge Gray tion’s and failed to contents of the label affirmatively present any evidence which showed that Glenrock any duty certify knowledge undertook Restoration’s proximate label cause of the thereby MSDS was the decedent’s death.
Finally, regulations Gray alleged the OSHA that Glen- violated, In its third improper. rock the trial court’s decision was complaint, Gray initially alleged amended that Chem-Trete BSM 20 is regulation 29 C.F.R. a hazardous chemical as defined OSHA 1910.1200(c) (2003). § goes allege then on to that Glenrock 1910.1200(f)(l)(ii) § following regulations: violated the 29 C.F.R. OSHA 1910.1200(f)(ll) (2003), (2003), § 29 C.F.R. 29 C.F.R. (2003), §§ and 29 1910.1200(g)(2)(iii) (g)(2)(ix) C.F.R. § 1910.1200(g)(7) alleged that also Glenrock violated regulations conjunction these OSHA ANSI standards Z129.1— 1994 and 400.1—1993. any regulations
Glenrock cannot have violated OSHA without first having duty particular to warn. We will now look at the OSHA regulations alleged regulation that Glenrock is to have violated. OSHA 1910.1200(f)(l)(ii) (2003) § C.F.R. states: manufacturer, importer
“[T]he chemical or distributor shall leaving ensure that each container of hazardous chemicals workplace *** labeled, tagged is or marked with *** (ii) added.) appropriate warnings[.]” (Emphasis hazard 1910.1200(0(11) (2003) § 29 C.F.R. states: manufacturers, distributors,
“Chemical importers, employers or newly who any significant regarding become aware of information the hazards of a chemical shall revise the labels for the chemical within three becoming months of aware of the new information. Labels on containers of shipped hazardous chemical after that time shall contain the currently new information. If the chemicalis not produced imported, manufacturer, or importers, the chemical distributor, employer or shall add the information to the label before shipped the chemical is workplace introduced into the added.) again.” (Emphasis (i) (2003) §
29 C.F.R. 1910.1200(g)(7) states: sheets, shall safety “Distributors ensure that material data information, updated provided employ- are to other distributors shipment ers with their initial and with the first after a material added.) safety updated.” data sheet (Emphasis *14 (2003) 1910.1200(g)(7)(ii) § 29 C.F.R. states: “The distributor provide safety shall either material data sheets containers, shipped with the or send them to the other distributor employer prior or shipment.” (Emphasis to or at the time of the added.)
Obviously, regulations these are directed toward distributors. business, OSHA defines “distributor” as: “a other than a chemical manufacturer importer, supplies which hazardous chemicals to 1910.1200(c) (2003). other employers.” § distributors or to 29 C.F.R. Glenrock subject regulations. is a distributor and therefore to these Therefore, duty regulations. Glenrock had a to observe these earlier,
As Gray through stated raised an issue of material fact testimony deposition of Watson as to whether Glenrock sent the MSDS such, required. ruling to National Restoration as As the trial court’s pertains allegations improper. as it to these ruling pertains trial court’s as it to 29 C.F.R. (2003) §§ 1910.100(g)(2)(iii) (g)(2)(ix) appears and to be correct. Our (2003) reading 1910.100(g)(2)(iii) §§ of 29 (g)(2)(ix) suggests C.F.R. and regulations that these only apply toward chemical manufacturers and importers, Furthermore, not distributors. as to the ANSI standards violated, Gray alleges appear that Glenrock these standards voluntary mandatory. Consequently, be of a nature and not the trial ruling allegations court’s as to these was correct.
IV Gray argues “partial that the trial improperly court entered sum- mary judgment” allegations favor of Hüls as to certain complaint. made her second amended 14, 2000, In complaint, February her second amended filed on Gray alleged liability negligence against strict Hüls. Hüls filed an answer, 23, 2000, summary judg- and on June Hüls filed a motion for grounds cutting ment on the action in into the drum that foreseeable, the Chem-Trete reasonably contained BSM 20 was not duty open that Hüls had no to warn because the risks involved were obvious, warnings sufficiently and that all and labels advised of any complied any regula- hazards involved and and all federal response. filed a tions. 2, August
On Hüls filed a motion to withdraw sections of its summary judgment adequacy motion for warnings. on issue of 11, 2000, August Gray’s objection, over the trial court On granted summary Hüls’ portions motion to withdraw its motion of judgment.
On Hüls’ September arguments trial court heard on an summary judgment. motion The trial court also entered order “(2) September providing following, Hüls’ motion is preemption, adequacy warnings; foreseeability, open denied as to granted summary judgment and obvious.” The trial court in favor also allegations Gray’s complaint of Hüls as to certain second amended as follows: against [Gray] granted motion in favor of Hüls and
“3. Hüls’ following: as to the (of (a) 14(a),(b),(c),(d), VI, counts paragraphs counts V and IV IV VI), V and (b) 13(a),(b),(c), VII, IX, paragraphs counts VIII (of IX) [s¿c],VIII, (d),(e),(g),(h),(i) (j); counts VII (of counts) 14(a)(b)(c)(d) VI, said paragraphs 4. counts V and IV complaint; prejudice; plaintiffs 2nd amended are dismissed with *15 VIII, IX, paragraphs 13(a)(b)(c)(d)(e)(g),(h)(i) 5. counts and VII (j) and of 2nd prejudice, plaintiffs are dismissed with amended complaint.” paragraphs contends that a certain number of for which the granted
trial court summary judgment pertained adequacy to the of warnings adequacy warnings and that the issue of the was not before the trial court because the issue had been withdrawn from summary Hüls’ judgment. Gray specifically motion for is concerned 14(c) (d) paragraphs iy with the inclusion of and counts V and VI 13(d) (e) paragraphs VII, and Gray argues of counts VIII and IX. that ruling appealable the trial court’s is not a final and order and is otherwise erroneous. objection order to which raises her a final was order appealable
but not an order at the time it was entered. her Gray took appeal from this order statutorily appropriate within the time after her voluntary such, dismissal. As jurisdiction we have this over issue. 4, 2000, August
On Hüls filed a motion to withdraw sections of its summary judgment. motion, motion for In the Hüls requested the court for leave portion “to withdraw that of its motion on the issue of the warning labels and safety material data sheet.” The trial court granted August 11, such, this on motion 2000. As the issue of the adequacy warnings of was not before the trial court when it ruled on Hüls’ motion for summary judgment and issued September its order on regard summary judgment. Hüls’ motion for
Our September 13, 2000, review of the order shows that the trial court in fact rulings pertained made adequacy warnings to the of previous contravened its order August particular, of 2000. In 14(c) (d) the September order dismissed paragraphs of iy VI, counts V and which state:
“(c) warnings given There were no reasonably anticipated us- of, ers person who would come in contact with CHEM-TRETE give BSM highly 20 to notice of the explosivecharacter vapors of its 1900.1200(f)(l)(ii). in violation of 29 CFR (d) There warnings given reasonably were no anticipated users of CHEM-TRETE give BSM 20 to notice of the nature and extent of the risk of harm from explosion power equipment capable of producing sparks heat or operated vicinity is on or in the CHEM-TRETE BSM 20 drums in violation of 29 CFR 1900.1200(f)(l)(ü).” 1910.1200(f)(l)(ii) (2003) §
29 C.F.R. states: manufacturer, “[T]he importer chemical or distributor shall ensure each container of leaving hazardous chemicals *** labeled, workplace tagged or marked with *** added.)
(ii) warnings!.]” (Emphasis appropriate hazard clearly ruling pertained to issues that were no This was court, such, Furthermore, longer improper. and as before 13(d) (e) IX paragraphs of counts VII and VIII and addressed the adequacy warnings. paragraphs issue These stated: “(d) labeling Carelessly negligently incorporate failed to of CHEM- CHEM-TRETEBSM 20 drums which would warn users highly explosive of 29 TRETE BSM 20 its character violation 1900.1200(f)(l)(ii); *16 CFR
(e) labeling Carelessly negligently incorporate and failed to on which would warn of CHEM- CHEM-TRETEBSM 20 drums users TRETE of the and extent of the risk of harm from BSM 20 nature explosion power equipment capable producing of heat or vicinity in sparks operated is on or of CHEM-TRETEBSM 20 1900.1200(f)(l)(ii).” in of violation 29 CFR Clearly paragraphs adequacy warnings. also dealt with the of these such, find that the trial court deci- clearly This was erroneous. As we paragraphs. pertains sion was erroneous as it to these V denied Finally, Gray improperly contends that the trial court damages Gray Hiils. plead punitive her'motion for leave to argues September that the order of was not intended to be 2001, 10, did voluntary final and that the dismissal on October not Nevertheless, of an appealable. Gray appeals make the order “out abundance of caution.” judg- A responds
Hiils that the trial court’s order is a final order. disposes rights parties, final if it of the of the either ment or order is separate part and on the entire case or on some definite Realty Development, 178 Ill. 2d controversy. Dubina v. Mesirow (1997). 496, recovery under the counts that 502 When the bases for standing, from those under the counts left are dismissed are different a distinct cause of ac- appealable disposes the dismissal is because it of 99 Ill. 2d 348 Peabody Corp., v. International tion. Heinrich (1984). plead to Gray filed her motion leave
The record shows 604.1, pursuant to section which punitive damages against Hiils 2— provides: if complaint amend the “The shall allow the motion to court *** proving likelihood of facts at a reasonable
plaintiff establishes punitive damages.” 735 support to an award trial sufficient (West2002). ILCS 5/2 — 604.1 damages separate and punitive seek motion for leave to
Gray’s damages from Hiils seeking compensatory from her claims distinct liability. negligence liability under theories of strict Strict liability are strict not negligence distinct causes action because does require proof Way of the defendant’s fault. v. White & Sign Freeman Co., damages Maintenance 3d Punitive not instead to of- compensation, punish are awarded as but serve and to party committing fender deter that others from similar Remington Co., in future. Ill. wrongdoing acts of Loitz v. Arms order plead punitive damages, In has the burden show proving support “a reasonable likelihood of facts at trial sufficient to 2002). (West punitive damages.” an award of 735 ILCS 5/2 — 604.1 burden is qualitatively Gray’s This different from the elements of for compensatory damages. Thus, ruling claim trial court’s disposed Gray’s rights regarding Hüls’ definite and separate part the case appealable and the order was final and upon voluntary dismissal case. of her
Gray has failed to required plead punitive sustain burden damages. Although Gray tries to Hüls show that was aware that warnings provided it on Chem-Trete BSM were inadequate, (a relies two cases Superior Jersey, civil action Court of New Division, 39482—88, Law docket Degussa No. sub nom. Clark v. L— (Clark), Corp. Superior Jersey, a civil action Court of New Division, 018612—86, Law docket No. sub nom. Cicalese Dyna v. L— Nobel (Cicalese)), mit of America irrelevant to the were consideration of Hüls’ role the current case. *17 completely
Clark concerned a product different is not similar to Chem-Trete BSM litigated prior 20. Cicalese was to the present warnings case and additional were attached to drums of Chem-Trete 20 16 prior BSM months to the decedent’s accident. The trial court properly supplying concluded that Hüls’ actions in additional warn- ings product subsequent hazardous Cicalese did not to the case an evil regard safety reveal motive or a reckless for of others degree or moral blame attached intentional conduct damages. required support punitive an award of Elwood, Skiver, Tyler This case is Enterprises similar to Inc. v. (1994). There, manufacturer, App. 260 Ill. pharmaceutical Lilly, Eli plaintiff. plaintiff sold the herbicide Balan to the The melted the Balan for incorporation products. Lilly into its own instructed the not plaintiff degrees to heat the Balan Fahrenheit and the above 185 stated MSDS that Balan burns and to be stored near open was not plaintiff they The heating flames. was two drums of Balan when caught plaintiffs factory. brought fire and destroyed plaintiff The against Lilly alleged Lilly’s an action for strict liability and conduct was wilful and wanton. summary judgment on Lilly’s motion for granted
The trial court did “Lilly found that court affirmed. This court claims and this both stated degrees, the MSDS to heat the Balan above Tyler advise not open flame ***. not to store it near an burns and advised that Balan Lilly acted with a facts, conclude that In the above we cannot light of to, for, safety Tyler.” Tyler, or indifference disregard conscious 3d at 753. by the fil- her motion was mooted further contention that merit. Defendants complaint is without ing of her fourth amended actively sought hearing September at the note that fil- suggested that the her motion and never ruling on the merits of addition, In the motion. complaint amended mooted ing of her fourth time on October mootness for the first raised the issue of damages punitive was plead after her motion to days twelve denied. facts, the issue of mootness Gray has waived
Under these (2000) (a cannot Katholi, party Ill. 2d McMath v. review. make or to which he he induced the court to complain of error which consented.)
CONCLUSION reasons, the trial court is reversed the decision of foregoing For the part, in and remanded. part, in affirmed part; in cause remanded. part in and affirmed Reversed J., HARTIGAN, concurs. CAMPBELL, and dis- concurring part JUSTICE
PRESIDING senting part: of the analysis and conclusions wholeheartedly concur with
I However, I II, III, opinion. and V of the detailed in sections majority entirety, respect- trial court in its judgment of the would affirm opinion. majority I sections and IV fully dissent from I dismissing erred that the trial court majority concludes The Restoration complaint amended plaintiffs second Systems, Restoration determining that National Inc., after Systems, acknowl- majority immediate employer. the decedent’s Inc., and National Restoration the facts that both edges *18 waterproofing Inc., repair, Resurfacing, provided concrete National individu- by the same services; operated and are owned caulking companies the two and that Reagan; Frank als, Reagan and Thomas location, Road, operate corporate out the same 4242 Kirchoff Meadows, However, Rolling company. majority merely as one states Inn Day’s project” “[t]he decedent worked as a laborer at (354 349), App. revealing Ill. 3d at facts undisputed without which by begin- show that the decedent entities employed both National ning in early 1990s. majority plaintiff application adjust- states that filed her for entities,
ment against Resurfacing of claim both “National Inc. d/b/a (354 Systems,” National Restoration Ill. 3d at on October 350) plaintiff Inc., and that named Systems, National Restoration 25, 1997, employer. decedent’s On June her plaintiff filed complaint in County. 22, 1997, the circuit court of Cook On December the trial court denied by the motion to dismiss National Restoration Systems, Inc., prejudice, without specifically while at the same time advising if plaintiff plaintiff any collected money from National Systems, Inc., Restoration compensation in a worker’s proceeding, her complaint would be dismissed. 1, 2000, plaintiff
On March attorney and her signed two-page settlement contract entitled: Gray, “Valerie widow of Gray, William deceased Systems, Inc., vs. National Restoration National a/k/a Inc.,” Resurfacing, released all claims the decedent’s employer. The agreement settlement “Employer- names Respondent” as Inc.,” “National Restoration and the ad- dress the employer is listed Rd., Meadows, as “4242 Kirchoff Rolling IL 60008.” The provides settlement contract in pertinent part as fol- lows:
“Respondent, Restoration, employer, William pay $220,000.00 petitioner accept in full and final settle- any ment of and all under Compensation claims the Worker’s Occupational injuries Disease allegedly Acts for all accidental incurred including any as described herein and and all results or developments, fatal or allegedly resulting non-fatal from such ac- injuries. parties cidental Issues exist between the as to whether petitioner injuries degree has incurred alleged to the and whether injuries or not such compensable, are and this settlement is made amicably settle all [illegible] issues. This settlement includes temporary medical, compensation surgical total and all hospital expenses, past future, petitioner for all of which expressly as- responsibility. rights §§ sumes All under 16 and 19 of the Act *** expressly are parties. waived represents This settlement a full and final compromise any resolution of all issues and a may all benefits to which the pursuant § claimants be entitled to § and added.) Compensation the Illinois Workers’ (Emphasis Act.” May finding On the trial court entered an order that National *19 Inc., was, occurrence, Systems, Restoration at the time of the William employer granted immediate National Restoration Systems, prejudice. Inc.’s motion to dismiss with however, majority opines, question
The
here
that there remains a
of fact as to which National
the
entity
employer.
decedent’s
Co.,
majority relies on
v. Bell & Zoller Coal
On
following hypothetical situation:
three cases to the
injur-
working
suddenly collapses
men
on a beam which
“Two
are
employee a
who
ing both men. The first man is an
of subcontractor
will receive
compensation
has workmen’s
insurance. This man
employer
may subsequently
compensation benefits from his
any
person ‘engaging
busi-
general
sue the
contractor—or
2 of
3 of
enterprise referred to in subsections and
Section
ness or
(hereinafter included under
Compensation] Act’
[the Workmen’s
contractor) who, maintains,
tortiously li-
he
is
general
the term
—
employee of a subcon-
injuries. The second man is an
able for his
not
and has
compensation
carries no
insurance
tractor who
compensation.’ Under section
‘guaranteed
1(a)(3)
liability
pay
his
such
from
Act,
compensation
receive
benefits
of the
this man will
however,
precluded,
He
under
general
contractor.
will be
5(a)
maintaining a suit
interpretation of section
from
defendants’
though
even
he is liable
damages against
general
for
contractor
Moreover,
employee’s injuries.
general
for the
contractor who
1(a)(3)
pays
injured
employee
permitted
benefits to the
section
and, thus,
paid,
may
to recover from the subcontractor the amount
monetary
suffer no
loss.
contend that a construction of
Plaintiffs
5(a)
arbitrary
section
allows the result illustrated creates an
impermissible
injured employees.”
among
classification
Laf
foon,
The facts the present wholly distinguishable case are from those Here, the record shows National Restoration Systems, Laffoon. *20 Inc., was a Days project. subcontractor on the Inn Plaintiff here does not and Inc., cannot claim that Systems, National Restoration either failed carry compensation to insurance or that National Restoration Systems, Inc., general a may was contractor that be liable a subsequent action under the Structural Work Act. Restora- National Systems, Inc., fact, tion compensation paid carried insurance and compensation plaintiff $200,000. to the in the amount of While plaintiff has failed allege Inc., to that Resurfacing, National was uninsured, Reagan Thomas stated that both National entities were insured policy on the same by of insurance American States. Nor can plaintiff show that she can Systems, recover from National Restoration Inc., theory under a of “dual capacity.”2
Plaintiff entered into a claims settlement contract that released all Textron,Inc., (2003), 2The App. case of Murcia v. 342 Ill. 3d 433 is instruc There, plaintiff sought damages injuries tive. he operat sustained while ing press by employer, a trim owned Manufacturing Company his Callen (Callen). Callen, negligence against asserting Plaintiff asserted a claim of operated Callen capacity,” employer in a “dual “quasi both as his and as a press. manufacturer” of the trim plaintiffs The trial court dismissed the 5(a) negligence claim appeal, as barred section of the Act. On this court af firmed, holding doctrine,” capacity recognized that the “dual as a limited exception remedy provision 5(a), to the exclusive of section under which an employer may if, injured employee become liable in tort to an in addition to acting capacity employer, operates in its capacity as it in a second that confers upon obligations independent it imposed upon employer, of those it as did not apply. plaintiff allege any that, The support failed to “facts the conclusion
against
Inc.,
Systems,
Resurfacing,
National Restoration
and National
valid,
A
presumed
party challenging
Inc.
release is
and the
the release
shoulders the burden of proving any
invalidity.
assertion of
Brown v.
Corp.,
Torin
contract to “National is as “scrivener’s error” merely “Systems”: omitted the word writer; esp., professional “[A ‘scrivener’] is ‘A drafter of (7th Dictionary contracts or other documents.” Black’s Law 1999). ed.
A “scrivener’s error” is defined as “clerical error”: An resulting
“clerical error. error from a minor mistake or inadvert- ence, record, esp. writing copying something on the and not (cid:127) judicial reasoning Among from or determination. the boundless *21 examples omitting appendix of clerical errors are an from a docu- ment; number; word; typing mistranscribing incorrect a an added.) Dictionary failing log (Emphasis Black’sLaw 563 a call.” (7th 1999). ed. give a render the
We cannot the contract construction would by altering press, obligations modifying,changing or Callen incurred Murcia, flowing employer.” 342 Ill. unrelated to those from its status as an Co., 439; App. 41 3d App. v. VersonAllsteelPress Ill. 3d at see also Rosales 215, 787, (1976); Krass, App. 153Ill. 3d 505 N.E.2d 354 N.E.2d553 Ocasekv. 1285
371
give
must
it some reasonable
meaningless;
or
we
phrase superfluous
Edel-
Condominiums
meaning. Huskey
Managers
v. Board
295,
weiss, Inc.,
292,
I
claim-
plaintiff
judicially estopped
would further find that
from
Inc.,
Resurfacing,
ing
employed by
that the decedent was
such,
plaintiff
rather than National Restoration
and as
any
Compensation
cannot maintain
further action under the Workers’
majority,
party
posi-
Act. As stated
assumes a certain
*22
in
legal proceeding,
tion
that party
estopped
assuming
is
from
contrary position in a subsequent proceeding. People Coffin,
v.
305 Ill.
App.
Plaintiff has claimed in alternate complaints that the decedent employed by Inc., was Systems, National Restoration by and National Resurfacing, I plaintiff Inc. would find that judicially estopped from maintaining this complaint against National Systems, Restoration Inc., as a agreement result of the settlement compensa- of her worker’s tion claim.
I find plaintiff would further barred from her current complaint Inc., Systems, National Restoration principles judi- on of res cata, having already entered into settlement with National Restora- Systems, Act, tion Compensation the Workers’ provides, above, injured employee as noted that once an has collected compensation Act, under employee allege cannot then injuries those provisions. fall outside of the Act’s 820 ILCS 305/11 (West 2002) (“Compensation as full employer’s responsibil- measure of ity”); Co., Wagner Collier v. 81 Ill. 2d Castings 408 N.E.2d I cannot conclude that the trial in granting erred the mo- tion to dismiss of National Restoration Inc.
II I opinion also dissent from section IV of the the majority wherein concludes that the trial in granting partial summary judg- court erred paragraphs plaintiff’s ment favor of Hüls as to four second complaint. paragraphs, alleged amended In plaintiff those various inadequacy warnings, as in the Ill. majority opinion. of detailed ruling 3d at 363-64. Plaintiff contends that the trial court’s not a final order and is otherwise erroneous. September
The record shows that on the trial court (a) (e) judgment paragraphs through (g) entered for Hüls on (j) claims, through plaintiffs negligence judgment and entered plaintiffs liability. ap- Hüls on several of claims for strict Plaintiff (d) pealed portion pertaining paragraphs from order (e) trial court’s order claims and from the negligence through argues that Plaintiff now liability claims. to the strict pertaining attempt final in an not by the trial court was order entered support by Hüls judicata argument a res preemptively defeat that the order entered The record shows of her refilled case. dismissal appeal plaintiff failed a final order and by the trial court was 303(a). Ill. 2d Court Rule required by Supreme days within 30 303(a). refilled action judicata plaintiffs as to R. This issue is res appeal. this issue for review plaintiff I find that has waived would I Accordingly, dissent. *23 (The Illinois, People of the State of
In re OF GERALD SVEDA DETENTION Sveda, Respondent-Appellant). Petitioner-Appellee, v. Gerald (5th Division) First District No. 1 - 02-3583 Opinion filed November