dissenting:
Before Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382 (1984) was decided in 1984, we wondered how an employer could be "subject to liability in tort” under the Contribution Act. After all, section 5(a) of the Worker’s Compensation Act seemed to bar an employee’s action against an employer.
The supreme court’s answer is clear:
"The Workers’ Compensation Act provides employers with a defense against any action that may be asserted against them in tort, but that defense is an affirmative defense whose elements— the employment relationship and the nexus between the employment and the injury — must be established by the employer, and which is waived if not asserted by him in the trial court.” Doyle, 101 Ill. 2d at 10.
That is, says Doyle, an employee can sue an employer in tort. If the employer chooses, for some reason, not to assert the affirmative defense of section 5(a), the employee may obtain a judgment against the employer. We know that an employer may, by contract, relinquish the liability limitation set forth in Kotecki. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201 (1977).
It follows, then, that Phallon Payton was "legally entitled to recover damages” from his employer unless and until the employer asserted a defense under section 5(a). Since the employer is not a party to this action, there is no one to assert the affirmative defense contained in section 5(a).
I agree that Ramsey v. Morrison, 175 Ill. 2d 218 (1997), bars an employee’s negligence claim against a coemployee. But that case indicates a claim may be brought against the employer for his employee’s negligence. Presumably, it would be up to the employer to assert the section 5(a) exclusivity bar. If, for some reason, he chooses not to, the case proceeds. At any rate, this is not a case where either an employee or a third party is suing an employer or a coemployee for an event covered by the Workers’ Compensation Act.
I do not see why, as the majority believes, Atlantic Mutual "stands in the shoes of both driver and the owner of the uninsured motor vehicle.” 289 Ill. App. 3d at 872. If Atlantic Mutual had wanted to bar an action like this one, it could have said so in its policy. Paragraph D-2(a) of the policy, contained in the "Limit of Insurance” section, recognizes coverage would be reduced by workers’ compensation benefits. I do not read that language as an attempt to bar any coverage above and beyond Payton’s recovery under the Workers’ Compensation Act.
Payton should not be precluded from coverage under the terms of this uninsured motorist policy. He does not seek a double recovery. He seeks a full recovery.
I believe the majority decision unjustifiably diminishes the holding in Doyle v. Rhodes. For that reason, I respectfully dissent.