dissenting:
In my view, a question of material fact exists as to whether Halverson and the Joint Venture paid for the workers’ compensation benefits in this case and were, therefore, entitled to immunity from tort liability under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). I believe the appellate court properly reversed the trial court’s grant of summary judgment. Accordingly, I respectfully dissent.
Summary judgment is appropriate only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2 — 1005(c) (West 2000). In reviewing a grant of summary judgment, this court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary judgment is a drastic means of disposing of litigation that should not be granted unless the movant’s right to judgment is clear and free from doubt. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007); Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
In the summary judgment motions, defendants Halverson and the Joint Venture asserted immunity from tort liability under the Act. In Forsythe, this court examined the exclusive remedy provision in the Act (820 ILCS 305/5(a) (West 2000)). Forsythe, 224 Ill. 2d at 296. This court recognized that a party must contribute to providing workers’ compensation benefits to receive the benefit of the Act’s immunity. Forsythe, 224 Ill. 2d at 298. As noted by the majority, the Act’s immunity from tort liability is based on “the simple proposition that one who bears the burden of furnishing workers’ compensation benefits for an injured employee should not also have to answer to that employee for civil damages in court.” 232 Ill. 2d at 203, citing Schmidt v. Milhurn Brothers, Inc., 296 Ill. App. 3d 260, 269 (1998). Thus, the Act’s protection from tort liability is limited to the party that pays workers’ compensation premiums or otherwise provides those benefits.
I believe this case presents a genuine question of material fact on whether the defendants actually contributed to the workers’ compensation premiums. As noted by the appellate court, the defendants did not produce conclusive evidence that they paid or contributed to the workers’ compensation premiums before the accident. The appellate court further noted that “at the time of oral arguments, months/years later, it was admitted that [Halverson and the Joint Venture] had not reimbursed Midwest for any expenses associated with the joint venture.” 377 Ill. App. 3d at 230. I believe the appellate court’s statement is supported by the transcript of the oral argument. The transcript shows Halverson’s attorney asserted that under the joint venture agreement:
“Midwest Foundation is obliged to acquire the workers’ compensation coverage, is required to pay that premium, and is reimbursed that premium out of the joint venture proceeds. *** Now, once, then, the Midwest Foundation is reimbursed that premium out of the joint venture proceeds, then the potential distributable profit of the joint venture is reduced, and they share in it in that manner.”
We must construe this statement strictly against the defendants as the moving parties, and liberally in favor of the plaintiffs. Williams, 228 Ill. 2d at 417. Consistent with the appellate court’s opinion, this statement can be fairly construed to mean that Midwest paid the workers’ compensation premiums and only anticipated reimbursement of those amounts at the conclusion of the project. The statement does not indicate that the defendants ever paid or contributed to the payment of the workers’ compensation premiums.
The majority has identified evidence that may tend to show the defendants contributed to providing workers’ compensation benefits. The majority, however, relies in part on evidence submitted with the defendants’ petition for rehearing in the appellate court. That evidence was not part of the record before the trial court when it ruled on the motions for summary judgment. Thus, that evidence should not be considered in reviewing the trial court’s decision.
In sum, the defendants, as the moving parties, must show their right to relief is clear and free from doubt. Forsythe, 224 Ill. 2d at 280. Given this record, I believe a genuine issue of material fact exists on whether the defendants actually bore the burden of providing workers’ compensation benefits. The defendants, therefore, have not shown clearly that they are entitled to the protection of the Act’s exclusive remedy provision. Accordingly, I would affirm the appellate court’s judgment reversing the grant of summary judgment and remanding the cause to the trial court for further proceedings.