Ioerger v. Halverson Const. Co., Inc.

years’ to three charge restraint on the unlawful defendant’s sentence imprisonment. ag- conviction sentence We hold that defendant’s (count burglary residential during sexual

gravated criminal assault I) result, As a one-act, principles. under one-crime is vacated (count III) are for home invasion defendant’s conviction sentence aggravated included offense of vacated as home invasion is lesser also (count II). hold- during a invasion This criminal sexual assault home King out in and Garcia. conformity principles is in with the set sentence Further, the extended-term improperly imposed trial court (count V) sentence charge and defendant’s restraint on the unlawful maximum nonextended- years, reduced to three charge on that trial felony. We remand court sentence for a Class term sentencing accordingly. order amend defendant’s part. and remanded in part, Affirmed in vacated WRIGHT, JJ., McDADE and concur. al., Plaintiffs-Appellants,

DANIEL et v. IOERGER HALVERSON (Michael COMPANY, INC., al., Defendants-Appellees et CONSTRUCTION Defendants). Grafton, Inc., al., Agent Strategies, as an of Job Indiv. and et Third District No. 3 — 06—0399 Opinion Rehearings denied December 2007. filed October 2007 . J., CARTER, concurring dissenting part. and Anesi, Ozman, Rodin, (argued), Kohen, Daniel V. O’Connor of Novak & Ltd., Chicago, appellants. of for Gregory Roberts, (argued), Patty A. Cerulo Adam P. Chaddock and L. all Quinn, Johnston, Pretorius, Peoria, appellee of & of Henderson for Halverson Company. Construction (argued), Mueller, Peoria, Cassidy

David B. Mueller of & appellee of for Corporation/Halverson Midwest Company. Foundation Construction JUSTICE delivered the opinion O’BRIEN of the court: Ioerger, Foulks, Randy McCombs, Plaintiffs Daniel Robert Sr., L. Foulks, deceased, administrator the estate of Robert and Ralph ironworkers), Bill (collectively and other not involved brought in this appeal negligence this action Hal- Co., Inc., Corp./ and verson Construction Midwest Foundation Co., venture, Halverson Construction and other defendants appeal injuries they involved in this as a the for sustained result of collapse bridge of a site. and repair scaffold Halverson summary judgment, claiming immunity filed motions for remedy provision of pursuant Compensa- to the exclusive the Workers’ Act) (820 (West (the 305/5(a) 2000)). tion Act ILCS The trial court summary and fol- granted judgment the motions for the ironworkers appeal. reverse, finding remedy lowed with this that We the exclusive apply do not to either Halverson or the provisions

FACTS Corp. and June defendants Midwest Foundation Halver- Inc., Co., Construction formed a Midwest Founda- son Co., in a bid Corp./Halverson place tion Construction order to with (IDOT) Transportation McCluggage Illinois on Department Bridge repair project. and executed a Midwest Halverson agreement agree to provided parties hereby that the “the submitting purpose for joint venturers themselves as constitute *** herein contracts construction performance joint bids and performing described, and before provided also agreement project.” such construction completing bridge resulting from the liabilities losses and profits and Pursuant by Halverson. and 40% 60% Midwest project be shared fully responsible for: agreement, Midwest Venture, including the for the Joint of all labor performance “the employee taxes, fringes, and other payroll, payroll all payment of to, the establishment including, but not limited expenses, of all payment compensation insurance [sic] worker’s *** be Corporation shall Foundation therefor. Midwest premiums for the costs Joint Venture from the entitled to reimbursement reimburse- foregoing obligations; such performing incurred in shall Joint Venture times as the at such time or paid ment to be determine.” bid, Halverson joint venture’s accepted IDOT

After bridge. Midwest duties on the performed separate Midwest solely Midwest. ironworkers, employees who were supervised the E,” “Ramp portion on employees hired the who worked Midwest joint venture supervised. The personnel project pay did not employ any did not or workers. hire including injured ironwork- project, wages of workers on paid or contributed joint nor the venture ers. Neither Halverson ironworkers; all covering the premiums compensation the workers’ by to Midwest’s premiums were Midwest joint argument admitted that the Moreover, at oral parties insurer. incurred any expenses it Midwest for venture has never reimbursed bridge project. on the working on 24, 2000, jobsite, at the the ironworkers were April

On col when the scaffold the Illinois River suspended a scaffold above Bill McCombs and Ioerger, them into the river below. lapsed, plunging received work killed. The ironworkers injured and Foulks was were employer, their injuries from compensation benefits for ers’ action subsequently filed this tort They Midwest. responded joint and the Both Halverson

and the venture. afforded were claiming summary judgment, with motions for under sec as Midwest suits immunities from common-law the same 5(a) immune as a member it was argued that tion of the Act. Halverson and the Midwest agent of both venture and an of ultimately it was additionally that argued wages and workers’ ironworkers’ responsible trial court agreement. The premiums pursuant agreed Halverson and the venture were afforded immunity 5(a) pursuant granted to section their summary judg motions for ment. The trial granted court also Halverson and the venture’s 304(a) (134 304(a)) Supreme motions to include Court Rule Ill. 2d R. language. The appealed. ironworkers

ANALYSIS appeal The issue on is whether the trial court erred when it granted summary judgment in favor of Halverson and the venture. The argue ironworkers that the trial court erroneously found that Halverson and the venture were afforded immunity under of They the Act. genuine contend that a issue of material fact exists as to whether the exclusive remedy provisions of the Act protect Halverson and the co-joint venture as Specifi- venturers. cally,they argue that whether Halverson’s co-joint status as a venturer of Midwest bars their question fact; tort action is a that their status employees question fact; venture is a and that afford- Halverson and the venture the Act’s would frustrate the of the Act.

Summary judgment granted should only be when “the pleadings, depositions, file, affidavits, admissions on if any, show that there genuine is no issue as to any material fact and that moving party 1005(c) is entitled judgment as a matter of law.” 735 ILCS 5/2 — (West 2004); Robbins, Inc., Bokodi v. Foster Wheeler Ill. App. (2000). 1051, 1057, 730-31 “The purpose summary *** judgment try is not to of fact but to determine whether USA, one exists.” Forsythe Inc., v. Clark 274, 280, 224 Ill. 2d Summary judgment ais drastic measure which should only granted great be with caution and when the movant’s right to it is clear and free from doubt. ruling

864 N.E.2d at 232. summary judgment, When on a motion for the court must construe all evidence and draw all reasonable infer ences in favor of the nonmoving party strictly against the movant. Bokodi, 312 Ill. 728 N.E.2d at 731. This court reviews grant Bokodi, a trial court’s summary judgment de novo. App. 3d at Compensation Workers’ Act system liability establishes a employer

without fault which the exchanges traditional common- prohibition law defenses for the against of common-law suits it. 820 (West 2004); ILCS et seq. 295, 864 N.E.2d 305/1 at 240. The of workers’ compensation place upon is to industry the costs of industrial Meerbrey accidents. v. Marshall Field (1990). Co., 455, 469, 1222, & 2d 139 Ill. 564 N.E.2d The Act 1229

227 in the course of and that arise out personal injuries bars all suits 1, 373, 381, 8 329 N.E.2d App. Ill. 3d Staley, Mier v. 28 employment. (1975). provide required not be Employers should v. Schmidt actions. in common-law pay and also out 624, 629 260, 269, 694 N.E.2d Brothers, Inc., App. 3d Milbum (1998). Act states:

Section damages from the right to recover statutory or common law “No organization retained insurer, broker, any service his employer,his service, safety provide his broker to by employer,his insurer or agents or employer or the recommendations advice or any by injury or death sustained any of them for employees of employee, duty as such line of his engaged while employee provided, is available compensation herein other than the *** [or] of this Act by provisions who is covered employee 305/5(a) (West ***.” 820 ILCS of his estate legal representatives 2004). Mey & Newberg/Dugan K. relied on Moran v. Gust The trial court (1994), concluding that 999, 489 ers, App. Ill. 3d 645 N.E.2d 268 as a member afforded and the venture were Moran, plaintiff In itself. and as the of a regarding issues of fact alia, disputed that there argued, inter were relationship agency him and there was employed who whether Moran, 268 Ill. joint venture. employer and the between his claimed dispute as to 1004, The facts were App. 3d at 1001-02, 645 Moran, App. Ill. 3d at 268 employed plaintiff. who concluded, however, analysis was that its The court N.E.2d at 490-91. by a member of the employed by plaintiff altered whether the was Moran, Ill. at App. 268 3d venture itself. joint venture or found that the N.E.2d at 494. The court 645 other, liabilities. members, have coextensive agents its each court at 494. The Moran Ill. 645 N.E.2d App. 268 liability of the same as the of defendants were held that the liabilities against that the tort claims alleged employer and found plaintiffs 5(a). Moran, 3d at 1005- under section them were barred at 494. v. conclusion, relied on Smith the Moran court reaching Ill. 2d Chicago, 77 Sanitary Greater Metropolitan District of by the employed in Smith was plaintiff he was at 526. After Smith, includ parties, against various injured jobsite, on the he filed actions that the argued defendant, a member 5(a). Smith, Ill. 2d it barred claim 228 316,

at 396 N.E.2d at 526. The defendant asserted that as a member joint venture, of the it payment was liable for the plaintiffs of the workers’ benefits and thus entitled protec to the Act’s Smith, tion. 317, 77 Ill. 2d at 396 N.E.2d at 526. It further asserted that it was immunity agent entitled to an as venture. Smith, 317, 77 Ill. 2d at 396 N.E.2d at 526-27. The Smith agreed court 5(a) applied plaintiff’s section to bar the against claim defendant a Smith, 318, as venture member. 77 Ill. 2d at 396 N.E.2d at Looking partnership law, 527. the court found that members a agents that, venture are venture and agent, liability member’s would be principal, coextensive with its Smith, 318, venture. 77 Ill. 2d at 396 N.E.2d at 527. Accord ingly, the court held that because the venture was immune under 5(a) section plaintiffs as the employer, his claim the defendant as a Smith, member of the venture was also barred. 11 Ill. 2d at 318, 396 N.E.2d at 527. interpreted by Moran,

As Smith instructs that in the context of a 5(a) joint venture, statutory protection under section is a legal exists, status such that if a 5(a) itself and all of its members are entitled to immunity. Moran, 1006, Ill. App. view, 268 3d at 645 N.E.2d at 494. In in our us ing Smith conclusion, as the basis for its neglected Moran court carry analysis its far enough. We note that the in defendant Smith argued that it was afforded under the Act because it had corresponding obligations, liability such as Smith, 317, benefits. 11 Ill. 2d at While the Smith court did not discuss the specific defendant’s work compensation obligations, that, ers’ it did reason based on partnership principles, duty the defendant’s to the plaintiff any liability for a duty breach of that would be coextensive with that of the Smith, 318, 396 N.E.2d at 527. The Smith court thus compensation obligations focused on the defendant’s worker’s determining subject immunity. whether it was to the Act’s This analysis extended supported by the decisions Schmidt v. Milburn Brothers, Inc., 260, (1998), Ill. App. 3d 694 N.E.2d 624 and For USA, Inc., 274, sythe v. Clark 224 Ill. 2d 864 N.E.2d 227 Schmidt, plaintiff injured the truck he driv when was ing Schmidt, by by App. was hit a truck driven the defendant. 296 Ill. plaintiff 3d at 694 N.E.2d at 625. Both the and the individual separately employed by companies defendant were that were of a “family” Schmidt, at companies. App. 296 Ill. 3d at employer 625. defendant’s was also a defendant in the action. Schmidt, App. 296 Ill. 3d at 694 N.E.2d at 625. At the time of the projects. different accident, working on the men were 630. The defendants 269, 694 N.E.2d at Schmidt, App. 3d at drivers and members of both joint employers argued were tort li immune from and thus were joint ventures companies’ Expanding at 627. Schmidt, App. 3d at ability. inquired court the Schmidt analysis set forth on whether, in the context of a to determine provid responsibility

seeking section Schmidt, injured employee. compensation benefits indicated 269-70, 629-30. The record 694 N.E.2d at App. 296 Ill. single “family” companies were covered premiums. did establish who compensation policy but as Schmidt, at 627. The court to the company paid the defendant or contributed sumed that had 265, Schmidt, Ill. 3d at App. stated. premiums, it would have so reasoned that to afford 694 N.E.2d at 627. The Schmidt court in corresponding obligation secur immunity any without compensation contrary insurance would be paying and for workers’ Schmidt, purpose to the of the Act. 3d at summary judgment at It and held grants 629-30. thus reversed the joint immunity that whether the defendants were entitled to ventur Schmidt, ers was a matter for the trier of fact to determine.

App. 3d at 694 N.E.2d at 630. In Forsythe, filed actions their decedents’ employer parent company. Forsythe, and its 224 Ill. 2d at whether, a N.E.2d at 230. One of the issues the court was under before theory participant liability, parent of direct immunizes the 277-78, The company. Forsythe, 224 Ill. 2d at 864 N.E.2d at 230-31. not, analysis court determined that it did with the Schmidt agreeing party providing that a did not bear the costs of workers’ compensation immunity. Forsythe, not the Act’s entitled to Noting parent company that the did not employ pay the decedents or benefits families, parent company their was not the court found that im protection under Act and held that it was not entitled to 5(a). munized under section

242. Smith, view, in Schmidt analysis employed our the extended 5(a)’s grant of Forsythe

and attuned to the of section is more finding a that a immunity. analysis The set forth in that and all its venture affords to the venture exists members, question contrary immunity. to the reason for There is no compensation and employer pay that an should not have to also have in pay Conversely, out tort actions. venture or one of its members should enjoy the Act’s immunity bearing without some corresponding obligations. agree We with the rationale Smith, Schmidt Forsythe the immunity should serve to protect those providing who bear the burden of benefits. question for our determination in the instant case thus

becomes whether venture responsi- bility providing workers’ compensation for the ironworkers. Based record, on our they First, review of we find that did not. we note there is no that a venture existed under the instant facts. There dispute employees is also no that the ironworkers were Midwest, not the venture. hired and paid employees, Midwest work, directed and provided compensa- controlled their tion injuries. benefits for their Contrary to the terms of the agreement, neither Halverson nor the venture reim- wages bursed Midwest for prior it to the ironworkers to the injuries this case. Neither Halverson nor the contributed payment of workers’ premiums or reimbursed payment Midwest for its of them before accident. Indeed, arguments, later, at the time of oral months/years it was admitted that had not any expenses reimbursed Midwest for as- sociated with the

We believe that it public policy would be bad to allow Halverson point, postdate at this to now deliver or and/or check to Midwest for reimbursement of

wages compensa- and workers’ premiums tion obligations agree- to fulfill its under the immunity. ment order to obtain the of the Act’s mere fact that co-joint Halverson and Midwest were venturers and not, view, part provide immunity of the venture does in our them 5(a). In enjoy immunity, they under section order to the Act’s must obligations. also undertake its

We thus hold that and entitled the venture are not they under section of the Act because did not any responsibility providing compensation. bear for To hold workers’ reap would and the venture to the otherwise allow Halverson incurring any corresponding benefits of the Act without detri- acknowledge holding the in ments. We our decision contradicts However, opinion, in the failed to focus on Moran. our Moran court in compensation obligations the as illustrated defendant’s workers’ Moreover, in diminished analysis put Smith. the forth Moran has been each of subsequent the cases of Schmidt aligned the employs expanded analysis aptly is more with grant immunity. of purposes Smith decision as well as the of Act’s

231 remanded cause should be disagree with the dissent that this We Halverson and the for a determination as to whether providing for actually any responsibility view, In our had Halverson or benefits to the ironworkers. any obligations or bore any evidence that contributed to presented it to compensation, they would have providing

for find Therefore, necessary. Accordingly, we remand is not court. grants summary judgment to Halverson that the trial court’s of be and this cause remanded venture should reversed this order. proceedings consistent with reasons, judgment of the circuit court of foregoing For the is remanded. County Peoria is reversed and this cause Reversed and remanded.

WRIGHT, J., concurs. CARTER, concurring dissenting part: in in

JUSTICE agree I majority’s with the conclusion that the trial court erred granting summary judgment of Halverson and the favor defendants). dissent, however, (collectively referred I I majority’s ruling goes my opinion, because believe that the too far. In a material issue of fact remains as to whether defendants bore of the responsibility providing of benefits to plaintiffs. I would remand this case for a determination of that mate- rial issue of fact. case, upon application

When trial court ruled this remedy provision largely exclusive the area of venture was legal Mey status. See v. K. & Newberg/Dugan Moran Gust ers, 999, 1006, Ill. App. par 3d 645 N.E.2d If the legal joint venture, ties had the status venture itself and all statutory protec members of the venture were entitled to the tion. See trial Harris, legal principles. court was bound to follow those See People v. (1988) (decisions 113, 128, appel of an late court binding precedent regardless are on all circuit courts locale). Thus, parties the matter the trial litigated when the before court, showing presented evidence was for the sole supreme ruling whether a venture existed. court’s in For USA, Inc., 274, 298, sythe Clark 224 Ill. 2d 241-42 v. (2007), court, upon is changed analysis ruling in this area. A this sue, beyond legal must now look the existence of the status inquire party seeking venture and whether the responsibility Act has borne some of the providing compensation benefits. See

241-42. notes, majority

As the defendants admitted argument at oral they had not reimbursed provid Midwest for the costs associated with project. However, benefits for the it cannot be determined from this project record whether has been completed or any gross profits whether there are from which to Furthermore, reimburse agreement Midwest. ambiguous place. as to how and when a reimbursement will take No court, presented evidence was on this issue in the trial because as above, only legal noted the trial court’s focus was on whether the giving parties op status venture existed. Instead of portunity litigate court, that issue of material fact before the trial majority resolves the issue and finds that defendants none of responsibility providing benefits to the ' plaintiffs. goes beyond That determination our role here and should if be left to the trial court. Even either one of the defendants or both protection remedy are not entitled to the provision, exclusive possibly there are potential example, other issues. For whether there right Midwest, is a of contribution from whether Midwest has waived remedy provision, exclusive whether (740 Construction Contract Indemnification for Act Negligence ILCS (West 2006)) seq. any impact analysis. et has on the See Virginia 35/0.01 Co., Surety Co. v. Northern Insurance 866 N.E.2d 149 addition, procedural I a believe that there is flaw with summary majority’s ruling. judgment Defendants moved for on the is- remedy provisions preclude sue of whether the exclusive of the Act did plaintiffs’ common law tort action. Plaintiffs not file cross-motion Instead, summary judgment argued have on that issue. prevent that material of fact throughout proceedings issues grant summary judgment. majority’s ruling merely establishes time, that at this it is not clear as a matter of law that defendants are judgment Contrary majority’s on that issue. entitled to assertion, present evidence on that issue and may still a trial. This is no different than judgment obtain on that issue after personal injury in a action files a motion for sum- when a defendant judgment proximate that he or she is not the cause of mary alleging prevent A plaintiffs injuries. denial of motion does obtaining judgment on that issue after a litigating defendant from trial. reasons, and dissent foregoing respectfully I concur

For the part.

Case Details

Case Name: Ioerger v. Halverson Const. Co., Inc.

Court Name: Appellate Court of Illinois

Date Published: Oct 12, 2007

Citation: 878 N.E.2d 147

Docket Number: 3-06-0399

Court Abbreviation: Ill. App. Ct.