dissenting:
I respectfully dissent. In my opinion, Steve availed himself of the benefits of the Workers’ Compensation Act when he applied for and received benefits from United. Therefore, I believe that the exclusivity provision of the Act (820 ILCS 305/5(a) (West 2000)) bars plaintiffs from suing United in common-law negligence. Consequently, I would reverse the judgment of the circuit court.
Section 5(a) of the Act provides in pertinent part as follows:
“(a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” 820 ILCS 305/5(a) (West 2000).
Our supreme court has long taken the position that a double recovery of compensation benefits under the Act and in a common-law tort suit is prohibited. Fregeau v. Gillespie, 96 Ill. 2d 479, 486 (1983); Rhodes v. Industrial Comm’n, 92 Ill. 2d 467, 471 (1982); Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980). Application of the exclusivity provision of the Act does not hinge on whether the claimant was actually the employee, but on whether the claimant applied for and accepted benefits under the Act. Wren v. Reddick Community Fire Protection District, 337 Ill. App. 3d 262, 267 (2003). “[Ajpplying for and accepting benefits under the Act does not transform a nonemployee into an employee.” Wren, 337 Ill. App. 3d at 267. “Instead, it acts as a form of estoppel, denying a plaintiff who has availed herself of the benefits of the Act from thereafter asserting that she falls outside its reach.” Wren, 337 Ill. App. 3d at 267. Consequently, the relevant inquiry for disposition of this appeal is whether Steve applied for and accepted benefits under the Act from United, not whether Steve was United’s or Rainbow’s employee.
Steve was injured on February 2, 1999. On May 4, 1999, he filed a workers’ compensation claim against United. Steve thereafter received workers’ compensation benefits from United until May 2000. Steve took additional affirmative steps in the Commission to ensure that United continued to pay benefits to him under the Act, which evinced his choice to elect a remedy under the Act. Steve admittedly dismissed his workers’ compensation claim against Rainbow because someone told him that United would dispute its obligation to continue to pay benefits where Steve was asserting that Rainbow was his employer. As a result, the arbitrator made a finding that Rainbow was not Steve’s employer. Ultimately, USLIC terminated its payment of benefits to Steve because James Fassbinder made material misrepresentations on the insurance application and at audit.
The majority states that “United denied that it was Steve’s employer on the date of the accident and USLIC stopped the benefits on this basis.” 372 Ill. App. 3d at 899. To the contrary, the dispute over continued payment of benefits between USLIC and Fassbinder did not address United’s legal status as Steve’s employer. USLIC filed a declaratory judgment suit in federal court that sought to rescind its policy because of Fassbinder’s material misrepresentations on the application for insurance. At the point benefits were stopped, USLIC was disputing its duty of coverage on that basis.
USLIC stopped paying the benefits almost simultaneously with Steve’s dismissal of his claim against Rainbow. When he dismissed the claim against Rainbow, Steve did not know that USLIC had made the decision to terminate payment of benefits. It was after USLIC’s decision to stop payment of benefits, and after the arbitrator’s finding that Rainbow was not the employer, that Adams took the position in the Commission that United was not Steve’s employer. This position was based on the premise that, if Rainbow was not Steve’s employer, then United could not have borrowed Steve from Rainbow. Up until Steve dismissed his claim against Rainbow, saying Rainbow was not his employer, United did not dispute that Steve was covered under the Act. Therefore, I disagree with the majority that United has taken inconsistent positions that preclude it from claiming the protection of the exclusivity provision.
The majority concedes that Steve filed for workers’ compensation benefits against United and received them. I believe that this concession requires a reversal of the trial court’s orders denying the motion for a directed verdict and the motion for judgment n.o.v. This case is analogous to Zurowska v. Berlin Industries, Inc., 282 Ill. App. 3d 540 (1996). In Zurowska, the plaintiff was injured while working when her hand got caught in a strapping machine. Zurowska, 282 Ill. App. 3d at 541. She filed a claim in the Industrial Commission, and she also accepted temporary total disability benefits as well as medical benefits under the Act. Zurowska, 282 Ill. App. 3d at 541-42. Subsequently, she filed a lawsuit against her employer, alleging an intentional tort. Zurowska, 282 Ill. App. 3d at 545. She admitted filing for and accepting the workers’ compensation benefits, but she argued that her lawsuit was not subject to dismissal, because the benefits she received were paid voluntarily by her employer. Zurowska, 282 Ill. App. 3d at 543. The trial court dismissed her suit, based upon the holding in Fregeau. Zurowska, 282 Ill. App. 3d at 541. The appellate court affirmed and held that the filing of the claim with the Industrial Commission, coupled with the receipt of compensation under the Act, constituted a bar to a tort action. Zurowska, 282 Ill. App. 3d at 544. The appellate court stated that, if all the plaintiff had done was file her claim, her lawsuit would not be barred. Zurowska, 282 Ill. App. 3d at 544. “However, she also accepted temporary total disability payments pursuant to the Act.” Zurowska, 282 Ill. App. 3d at 544. This evinced her election to proceed under the Act because she actively pursued a remedy in the Industrial Commission. Zurowska, 282 Ill. App. 3d at 544.
In this case, Steve did what the plaintiff in Zurowska did. He filed an application for adjustment of claim against United for workers’ compensation benefits, and he received approximately a year’s worth of temporary total disability benefits following the filing of that claim. The majority notes that Steve and United never reached a final settlement in the Commission, nor did the Commission make an award. This is of no consequence, because in Zurowska the plaintiff’s lawsuit was barred where she accepted temporary total disability benefits and did not reach a final settlement.
The majority characterizes United’s payments of benefits to Steve as “voluntary.” The concept of “voluntary” payments excepting a plaintiff from the exclusivity provision of the Act arose in Copass v. Illinois Power Co., 211 Ill. App. 3d 205 (1991). In Copass, the plaintiffs husband was killed while working on an Illinois Power gas pipeline. Copass, 211 Ill. App. 3d at 207-08. Three days after the accident, Illinois Power informed the plaintiff that she was entitled to receive benefits under the Act, which Illinois Power paid. Copass, 211 Ill. App. 3d at 209. The plaintiff never filed a workers’ compensation claim, executed a written settlement of claim, “or otherwise [took] any affirmative action before the Industrial Commission.” Copass, 211 Ill. App. 3d at 209. Under those circumstances, the appellate court labeled Illinois Power’s payments as voluntary and held that the plaintiffs common-law suit was not barred. Copass, 211 Ill. App. 3d at 211.
Copass is distinguishable from our case. Approximately three months after his accident, Steve filed for workers’ compensation benefits against United. While it is not clear what, if any, benefits he received prior to filing his claim, it is clear he was paid and accepted benefits for 12 months after he filed his claim. It is also clear that Steve took additional affirmative steps in the Commission to assure his ongoing receipt of benefits when he dismissed his claim against Rainbow for the admitted purpose of pursuing his claim against United. Steve, therefore, took the express position that his injury was compensable under the Act and accepted benefits, thereby barring him from recovery in tort. See Copass, 211 Ill. App. 3d at 210. At the time of trial, Steve was still taking the position that his injury was compensable under the Act. He tried to reinstate his claim against Rainbow in the Commission, and that case was still pending in the Commission.
Instead of engaging in a Fregeau analysis, which would lead to the result I reach under Zurowska, the majority holds that the exclusivity provision of the Act is inapplicable under Laffoon v. Bell & Zoller Coal Co., 65 Ill. 2d 437 (1976). I believe that Laffoon is inapposite. The plaintiffs in Laffoon were employees of subcontractors that carried no workers’ compensation insurance. Laffoon, 65 Ill. 2d at 441-43. Each plaintiff was injured in the course of and arising out of his employment, and the general contractors paid workers’ compensation benefits to the subcontractors’ injured employees under section 1(a)(3) of the Act. Laffoon, 65 Ill. 2d at 441-42. Section 1(a)(3) of the Act provides:
“Any one engaging in any business or enterprise referred to in subsections 1 and 2 of Section 3 of this Act who undertakes to do any work enumerated therein, is hable to pay compensation to his own immediate employees in accordance with the provisions of this Act, and in addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he is liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or subcontractor has insured, in any company or association authorized under the laws of this State to insure the liability to pay compensation under this Act, or guaranteed his liability to pay such compensation. ***
In the event any such person pays compensation under this subsection he may recover the amount thereof from the contractor or sub-contractor, if any, and in the event the contractor pays compensation under this subsection he may recover the amount thereof from the sub-contractor, if any.
This subsection does not apply in any case where the accident occurs elsewhere than on, in or about the immediate premises on which the principal has contracted that the work be done.” 820 ILCS 305/l(a)(3) (West 2000).
Thus, in Laffoon, the general contractors’ liability to pay compensation statutorily arose where the plaintiffs’ immediate employers were not insured. In that situation, where the contractors paid benefits pursuant to section 1(a)(3) of the Act, our supreme court held that the plaintiffs were not barred from also suing the general contractors under the Structural Work Act. Laffoon, 65 Ill. 2d at 444. Our supreme court concluded that any other interpretation of section 1(a)(3) would result in the creation of an unconstitutional classification based upon the arbitrary circumstance of whose immediate employer carried insurance. Laffoon, 65 Ill. 2d at 444. The injured worker whose immediate employer carried workers’ compensation insurance would be allowed to sue the general contractor for damages, while the similarly injured worker whose immediate employer did not have insurance would not be able to sue for damages. Laffoon, 65 Ill. 2d at 443-44. The holding in Laffoon thus involved an interpretation of section 1(a)(3) of the Act, which is not implicated in our case. Steve did not invoke section 1(a)(3) in seeking workers’ compensation benefits from United. Indeed, whether Rainbow (assuming it was Steve’s immediate employer) was insured never was raised by the pleadings or the evidence. The majority stretches Laffoon beyond its boundaries by conferring immunity pursuant to section 5(a) of the Act upon employers only in the situation where they are sued by their immediate employees. I believe that this is contrary to the letter and spirit of the Workers’ Compensation Act because it permits and encourages double recoveries by persons in plaintiffs’ posture.
I also believe that the First District’s decision in Gray v. National Restoration Systems, Inc., 354 Ill. App. 3d 345 (2004), which construed section 5(a) the same way as the majority, was wrongly decided. I do not think we should follow it. I agree with the partial dissent in Gray.
For the foregoing reasons, I would reverse the judgment of the circuit court of Lake County.