dissenting:
I respectfully disagree with the opinion of my colleagues. I would affirm the judgment of the trial court since I believe the judgment in favor of the defendant was proper.
In my opinion the recent case of Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229,408 N.E.2d 198, is dispositive of the issues raised and considered on this appeal. Neither the facts nor the legal reasoning of Collier can be distinguished from those existing or applicable to the instant case and accordingly, I think the same result is required.
Collier covered the same ground covered by my colleagues as well as that included in Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924. The basic premise is firmly established that an injury to an employee may be accidental even though intentionally inflicted by someone else and will be compensable under the Workers’ Compensation Act if occurring during the course of employment and if a risk of the employment. Collier also holds that the compensation provisions of the Workers’ Compensation Act are not the exclusive remedy of an injured employee where a common law action based on the intentional tort of an employer or fellow employee is involved. However, Collier further holds that where the injured employee has elected to claim benefits under the Workers’ Compensation Act, he is barred from any common law action based on intentional tort. In other words, while the provisions of the compensation act are not exclusive, the doctrine of election of remedies is applicable and once Workers’ Compensation benefits are claimed and accepted no other action by the injured employee is permissible.
In Collier, the plaintiff accepted an award from his employer. Likewise, in the instant case, the plaintiff sought and has received substantial benefits from his employer under the Workers’ Compensation Act.
In Collier, the court accepts as true the allegations of counts one and four of the complaint charging intentional torts but nevertheless concludes that because plaintiff had accepted a compensation award the actions were barred even though intentional torts were alleged. The majority has not distinguished the facts in the Collier case from those in the instant case and its only reason for not following the teaching of Collier is the suggestion that perhaps the court in Collier was too concerned with double recovery, a concern which is at most fleeting.
By adopting the rule which it has in Collier, the court has prevented employer and employee from insulating themselves from the results of their intentional torts if this is the course of action which the injured employee elects to follow. Even if the injured employee elects the compensation route, the intentional tortfeasor may be subject to criminal penalties, both incarceration and monetary. Thus a wrongdoer need not escape scot-free as is somehow suggested to be the consequence of denying the injured employee his right of action for an intentional tort under all circumstances.