concurring in part and dissenting in part:
I agree with the majority’s conclusion that the trial court erred in granting summary judgment in favor of Halverson and the joint venture (collectively referred to as defendants). I dissent, however, because I believe that the majority’s ruling goes too far. In my opinion, a material issue of fact remains as to whether defendants bore any of the responsibility of providing workers’ compensation benefits to plaintiffs. I would remand this case for a determination of that material issue of fact.
When the trial court ruled upon this case, the application of the exclusive remedy provision in the area of joint venture was largely a question of legal status. See Moran v. Gust K. Newberg/Dugan & Meyers, 268 Ill. App. 3d 999, 1006, 645 N.E.2d 489, 494 (1994). If the parties had the legal status of joint venture, the joint venture itself and all members of the joint venture were entitled to the statutory protection. See Moran, 268 Ill. App. 3d at 1006, 645 N.E.2d at 494. The trial court was bound to follow those legal principles. See People v. Harris, 123 Ill. 2d 113, 128, 526 N.E.2d 335, 340 (1988) (decisions of an appellate court are binding precedent on all circuit courts regardless of locale). Thus, when the parties litigated the matter before the trial court, the evidence presented was for the sole purpose of showing whether a joint venture existed. The supreme court’s ruling in Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 298, 864 N.E.2d 227, 241-42 (2007), changed the analysis in this area. A court, ruling upon this issue, must now look beyond the existence of the legal status of joint venture and inquire whether the party seeking the protection of the Act has borne some of the responsibility of providing workers’ compensation benefits. See Forsythe, 224 Ill. 2d at 298, 864 N.E.2d at 241-42.
As the majority notes, defendants admitted at oral argument that they had not reimbursed Midwest for the costs associated with providing workers’ compensation benefits for the project. However, it cannot be determined from this record whether the project has been completed or whether there are any gross profits from which to reimburse Midwest. Furthermore, the joint venture agreement is ambiguous as to how and when a reimbursement will take place. No evidence was presented on this issue in the trial court, because as noted above, the trial court’s only focus was on whether the legal status of joint venture existed. Instead of giving the parties an opportunity to litigate that issue of material fact before the trial court, the majority resolves the issue and finds that defendants bore none of the responsibility of providing workers’ compensation benefits to the ' plaintiffs. That determination goes beyond our role here and should be left to the trial court. Even if either one of the defendants or both are not entitled to the protection of the exclusive remedy provision, there are possibly other potential issues. For example, whether there is a right of contribution from Midwest, whether Midwest has waived the protection of the exclusive remedy provision, and whether the Construction Contract Indemnification for Negligence Act (740 ILCS 35/0.01 et seq. (West 2006)) has any impact on the analysis. See Virginia Surety Co. v. Northern Insurance Co., 224 Ill. 2d 550, 866 N.E.2d 149 (2007).
In addition, I believe that there is a procedural flaw with the majority’s ruling. Defendants moved for summary judgment on the issue of whether the exclusive remedy provisions of the Act preclude plaintiffs’ common law tort action. Plaintiffs did not file a cross-motion for summary judgment on that issue. Instead, plaintiffs have argued throughout the proceedings that material issues of fact prevent a grant of summary judgment. The majority’s ruling merely establishes that at this time, it is not clear as a matter of law that defendants are entitled to judgment on that issue. Contrary to the majority’s further assertion, defendants may still present evidence on that issue and obtain judgment on that issue after a trial. This is no different than when a defendant in a personal injury action files a motion for summary judgment alleging that he or she is not the proximate cause of the plaintiffs injuries. A denial of that motion does not prevent the defendant from litigating and obtaining judgment on that issue after a trial.
For the foregoing reasons, I respectfully concur in part and dissent in part.