specially concurring:
I agree that the trial court’s judgment should be reversed. I write separately, however, because I believe the majority’s analysis is overly convoluted.
When granting defendants’ motions for summary judgment, the trial judge made comments supporting two bases for barring plaintiffs’ common law actions: (1) that plaintiffs were employees for workers’ compensation purposes, and thus subject to the exclusive remedy provision of the Workers’ Compensation Act, merely because they accepted workers’ compensation benefits; and (2) that plaintiffs elected a workers’ compensation remedy regardless of whether an employment relationship existed. Neither of these bases is valid.
First, merely accepting workers’ compensation benefits does not render someone an employee for purposes of the Workers’ Compensation Act. Employment status depends on various factors like remuneration, the right to control, the right to discharge, the skills required, and who furnished the equipment. Village of Creve Coeur v. Industrial Comm’n, 32 Ill. 2d 430 (1965). Second, the election of remedies doctrine does not bar a common law action if the plaintiff merely accepted unsolicited workers’ compensation benefits. See Copass v. Illinois Power Co., 211 Ill. App. 3d 205 (1991). That is all the instant plaintiffs did. As the majority aptly notes, plaintiffs cannot be faulted for their subsequent caution in filing workers’ compensation claims as the limitations deadline approached.
For these simple reasons, the trial judge’s bases for granting summary judgment were invalid.