concurring in part and dissenting in part:
I concur in the majority’s affirmance of the summary judgment in favor of the individual defendant doctors, albeit for different reasons, but I am compelled to dissent as to the reversal of the dismissal of the employer defendant, Caterpillar.
In my judgment the majority reads Smith too broadly and deals an unwarranted and near-lethal blow to the protection afforded by section 5(a) of the Workmen’s Compensation Act.
The key holding in Smith was that the defendant had assumed a separate legal persona in becoming a lessor of the equipment and so it was in the cases cited in Smith as support for the dual capacity theory with which I have no quarrel. The theory exists and is part of the law of Illinois, but in order to apply it properly great care must be taken in order to ascertain the separate legal persona; otherwise, every multifunction employer will have forfeited his protection under the Act. The risk of planting the seed of a lawsuit in every fringe benefit may be too much to bear.
The separate persona in the cases cited in Smith is readily discemable. In Marcus v. Green (1973), 13 Ill. App. 3d 699, 300 N.E.2d 512, it was owner-developer vis-a-vis contractor. In Reed v. Steamship Yaka (1963), 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349, the shipowner employed stevedores directly instead of obtaining them from a stevedoring company or a hiring hall. In Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437 359 N.E.2d 125, the contractor had become an indemnitor for one of his subcontractors.
The majority lays great stress on Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8. However, the vital distinction between Duprey and the case at bar is that in Duprey the defendant was performing the medical services directly and not simply paying the bill. The distinction is well put by Professor Larson:
“When we come to the doctor-employer relation, the case becomes closer. The employer as employer is under a duty specifically imposed by the compensation act to provide medical treatment. Normally he would do this by supplying a physician. If he did so, and if the physician aggravated the injury by negligence, it is elementary that the employer could not be sued by the employee in tort. Why, the defendant will ask, should the result be any different merely because the employer happens to be in a position to provide the services personally? The answer, as is developed in greater depth in the next subsection in connection with carriers, lies in the difference between providing services in the sense of paying for them, and providing services by physically performing them. The doctor-patient relation, with all the legal obligations that it entails, does not spring up as the result of an essentially financial act — paying the doctor’s bill. But it does spring up as the result of undertaking to perform the medical treatment directly.” 2A A. Larson, Workmen’s Compensation §72.80 (1976).
There is no contention here that Caterpillar was practicing medicine, as indeed it could not, even under the Professional Service Corporation Act (Ill. Rev. Stat. 1977, ch. 32, pars. 451 — 1 et seq.). It was, therefore, in the words of Professor Larson only “paying the doctor’s bill.”
I do not quarrel with the application of the dual capacity doctrine in Duprey since it was quite apparent that the employer voluntarily stepped out of his persona as employer and assumed the unique relationship of physician-patient. The California appellate court later had occasion to consider the Duprey case in Dixon v. Ford Motor Co. (1975), 53 Cal. App. 3d 499, 125 Cal. Rptr. 872, and reasoned that if a medical facility were operated for the mutual benefit of the company and the employees, any negligent treatment would have been received in the course of employment and would preclude a common law cause of action against the employer and the employee-physician. The Dixon court refused to apply Duprey and found that case to be unique.
In the case at bar, plaintiff lays great stress on what he conceives to be unequal treatment under fortuitous circumstances, i.e., if one employer should send all injured employees to a private physician for treatment and if another employer maintains an in-house medical facility staffed by employee-physicians, in the former case the employee’s common law cause of action is preserved while in the latter case it is not. Without determining whether the first proposition be true, but assuming arguendo that it is, I find the contention to be without merit.
The Workmen’s Compensation Act does not require any particular method of treatment. It requires only: “The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred * e (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) The employer retains the right to determine how this may be best accomplished. Without belaboring the point, it is apparent that some significant reasons can exist favoring an in-house facility, e.g., the immediate availability of medical care, the ability of the employer to control the quality of medical care.
It is also significant that if an employee’s prime concern is to preserve a potential common law action against a physician, the Workmen’s Compensation Act also provides: “The employee may at any time elect to secure his own physician, surgeon and hospital services at the employer’s expense, * 6 Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).
In Smith the court referred to Laffoon in speaking of irrational and arbitrary classifications under the Act. However, both the Smith court and the Laffoon court were concerned with the very existence of coverage, not the manner in which coverage under the Act was accomplished.
I believe that as to Caterpillar, the requirements of the dual capacity doctrine have not been met. Caterpillar was providing medical services but only as a consequence of its status as an employer. The Smith court laid emphasis on the “coincidental” nature of the employer’s status. (77 Ill. 2d 313, 320, 396 N.E.2d 524, 528.) That coincidental factor is not present here. The trial court properly dismissed as to Caterpillar.
I concur with the majority in affirming the summary judgment in favor of the defendant doctors. However, I would do so on the basis that since there is no liability on Caterpillar, there can be no liability on its agents or employees. The majority finds that there is immunity on the agents but it does not extend to the principal. This is apparently done on the basis described in Restatement of Agency §217(2), and Comment (b) (1933) thereto, which reads:
“Likewise, if an agent has an immunity from liability as distinguished from a privilege of acting, the principal does not share the immunity. Thus, if a servant, while acting within the scope of employment, negligently injures his wife, the master is subject to liability.”
See also Tallios v. Tallios (1952), 345 Ill. App. 387, 103 N.E.2d 507, and the authorities there collected.
However, so far as I am aware, this doctrine has never been extended beyond a family situation even though the Restatement makes it of general application.
I would affirm the trial court in all particulars.