specially concurring:
It may be that the allegations in this case do not rise to the level of intentional conduct, but that is not the question we are to decide. The question before us is whether a claim based on an intentional tort is barred by the exclusivity provision of the Workers’ Compensation Act if a claim has been filed and an award has been made under the Act. I agree with the majority that Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198, requires us to affirm, but I write separately because of my concern with what I perceive as an inconsistency in granting exclusivity protection to intentional misconduct.
Over the years, commentators (Amchan, “Callous Disregard” for Employee Safety: The Exclusivity of the Workers’ Compensation Remedy Against Employers, 34 Lab. L.J. 683 (1983); Schroeder, Workers’ Compensation: Expanding the Intentional Tort Exception to Include Willful, Wanton, and Reckless Employer Misconduct, 58 Notre Dame L. Rev. 890 (1983)) and courts (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353) have suggested that the worker’s compensation statutes were the legislative issue of a bargaining mating between labor and management. Labor brought to the meeting its somewhat theoretical right to recover unlimited damages. Management brought its seemingly effective coterie of the fellow-servant rule, contributory negligence, and assumption of risk. Each side gave and each received. In return for accepting limited awards, labor obtained an increased likelihood of recovery. In exchange for relinquishing defenses, management obtained limits on damages.
Assuming that this mating took place and that the parties’ surrogate, the legislature, dutifully brought forth the Workers’ Compensation Act and handed it over to the accolades of the beamingly proud parents, an objective outsider might be able to discern the traits, or lack thereof, that have been described. Wouldn’t the outsider look in vain, however, if the search was for either parent’s gift or receipt of the gene controlling intentional injury?
The fact that such a gene does not exist is of no importance; neither do those of limited damages or the fellow-servant rule, but while all exist as concepts, the concept of intentional injuries has never been considered as an element that went into the employer-employee bargain that resulted in the worker’s compensation statutes. Why then should a claim for injuries that result from intentional acts receive the protection of the exclusivity provisions of the Workers’ Compensation Act?
My question goes beyond the inquiry about whether a worker’s compensation claim was merely filed (Witham v. Mowery (1987), 161 Ill. App. 3d 322, 514 N.E.2d 531 (mere filing of such a claim no bar to a common law suit)) or whether an award was actually made (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198 (compensation collected under the Act precludes suit for civil damages)) and asks, if intentional torts were not part of the original bargain that the legislature considered and acted upon, why should courts grant them the protection of the exclusivity provisions of the Compensation Act?
It may be that injuries from intentional torts were brought into consideration in the first place in order to assure an injured worker of at least some recovery, and it is true that, when considered from the worker’s viewpoint, an injury at work is an injury at work whether caused by negligence or intentional misconduct. The same is not true, however, if the viewpoint is switched to that of the employer. An employer which engages in conduct that rises to the level of an intentional act is no longer operating within the terms of the arrangement that gave rise to the Workers’ Compensation Act. Such an employer should be subject to worker’s compensation claims, both their filing and the acceptance of awards after their filing, and such an employer should also be subject to a common law action for damages. Hopefully, the number of such claims would be few, but in my judgment they should not be barred.