Burdess v. Cottrell, Inc.

• Decision Date: 01 December 2020
• Docket Number: 5-20-0021 cons.,NOS. 5-19-0279,S. 5-19-0279
• Parties: Gregory L. BURDESS and Lisa Burdess, Plaintiffs-Appellees, v. COTTRELL, INC. ; General Motors, LLC; and Auto Handling Corporation, Defendants (Continental Indemnity Company, Intervenor-Appellant).
• Court: United States Appellate Court of Illinois

2020 IL App (5th) 190279

174 N.E.3d 69

447 Ill.Dec. 378

Gregory L. BURDESS and Lisa Burdess, Plaintiffs-Appellees,

v. COTTRELL, INC. ; General Motors, LLC; and Auto Handling Corporation, Defendants(Continental Indemnity Company, Intervenor-Appellant).

NOS. 5-19-0279

5-20-0021 cons.

Appellate Court of Illinois, Fifth District.

December 1, 2020

Jeffrey E. Kehl and Storrs W. Downey, of Bryce Downey & Lenkov LLC, of Chicago, for intervenor-appellant.

Roy C. Dripps, Charles W. Armbruster III, and Michael T. Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, of Maryville, and Brian M. Wendler, of Wendler Law, P.C., of Edwardsville, for appellees.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

¶ 1 This is a consolidated appeal of orders entered by the circuit court of St. Clair County on June 20, 2019, and December 17, 2019, holding the appellant, Continental Indemnity Company (Continental), in contempt of court for failing to comply with discovery orders entered pursuant to Illinois Supreme Court Rule 213 (eff. Jan. 1, 2018) and Rule 214 (eff. July 1, 2018) and for failing to comply with an order to produce discovery sought by the plaintiffs, Gregory L. Burdess (Gregory) and Lisa Burdess, in a discovery deposition subpoena. For the following reasons, we affirm in part and reverse in part and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 On April 4, 2016, the plaintiffs filed a seven-count complaint against the defendants, Cottrell, Inc. (Cottrell), General Motors, LLC (GM), and Auto Handling Corporation (AHC), seeking damages for employment-related injuries Gregory sustained on April 28, 2014, when he fell from the deck of a vehicle transportation rig while working for Jack Cooper Transport Company, Inc. (Jack Cooper).

¶ 4 On July 9, 2018, Continental filed a motion for leave to file a petition to intervene. The motion provided that the request was brought pursuant to section 2-408 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-408 (West 2018) ) for the purpose of allowing Continental to protect and secure a lien as provided in section 5(b) of the Workers' Compensation Act (Act) ( 820 ILCS 305/5(b) (West 2018)). The motion alleged that Gregory brought a workers' compensation claim against his employer, Jack Cooper; that Continental was the workers' compensation insurance carrier for Jack Cooper; that Continental had paid workers' compensation benefits to or on behalf of Gregory; and that Continental sought leave to intervene to secure a lien on any award or judgment with which the plaintiffs may be compensated in the litigation against the defendants.

¶ 5 Continental requested, inter alia , that all orders of the circuit court be made to indemnify, protect, and secure Continental's lien out of any fund or judgment with which the defendants may compensate the plaintiffs and that the circuit court order that no funds from any settlement of the claim be disbursed without Continental's approval.

¶ 6 On August 14, 2018, the circuit court granted Continental's motion for leave to file a petition to intervene, without objection. On August 30, 2018, Continental entered its appearance as intervenor. On October 4, 2018, the plaintiffs issued interrogatories to Continental, pursuant to Illinois Supreme Court Rule 213 (eff. Jan. 1, 2018) and a request for production of documents, pursuant to Illinois Supreme Court Rule 214 (eff. July 1, 2018). Notably, in the body of these pleadings—albeit not in the caption—the plaintiffs referred to Continental as a "Defendant."¹

¶ 7 On January 14, 2019, Continental served its answer and response to the plaintiffs' interrogatories and request for production of documents. In the answer and response, Continental asserted the following objection to each interrogatory and request:

"Intervenor objects to answering written discovery or participating in this lawsuit beyond its limited role as provided for in 820 ILCS 305/5(b), which provides that its intervention is for purposes of insuring that all orders of court after hearing or judgment shall be made for the protection of intervenor and its lien interest. See also Jackson v. Polar-Mohr , 115 Ill. App. 3d 571, 574, 71 Ill.Dec. 384, 450 N.E.2d 1263 ([1983]). (Since the employer's interest in the judgment is in the form of a lien ... his intervention is limited to protecting the lien and all orders of the Court after hearing and judgment.)"²

Notwithstanding the nonparty objection, Continental acknowledged that it was subject to the subpoena power of the circuit court and thus produced an electronic file containing materials related to Gregory's workers' compensation claim, along with an itemization of the workers' compensation benefits paid to Gregory for which Continental was asserting its lien.

¶ 8 On January 29, 2019, the plaintiffs filed a motion to compel discovery and for sanctions for Continental's failure to comply with their discovery requests. The motion alleged that by intervening as the workers' compensation lien holder, Continental "became a party to this action and was subject to * * * discovery rules." Citing Illinois Supreme Court Rule 213 (eff. Jan. 1, 2018) and Rule 214 (eff. July 1, 2018), the plaintiffs alleged in the motion to compel that, notwithstanding Continental's production of the electronic workers' compensation file to support its lien, Continental failed to provide verifications to the interrogatories and request for production. The plaintiffs alleged that Continental's responses were in bad faith and requested the circuit court to, inter alia , enter an order compelling Continental to fully respond to the discovery requests without objection and warning Continental that any further noncompliance "will result in the imposition of severe and extreme sanctions."

¶ 9 On February 12, 2019, Continental filed a response to the motion to compel discovery and for sanctions. Continental indicated that it had, in fact, responded to each discovery request with the nonparty objection, as contemplated by Rules 213 and 214, except for the production of the nonprivileged materials associated with Gregory's workers' compensation claim for which it was asserting its lien. Continental reiterated that it did not become a party to the litigation by intervening and that its rights and responsibilities were limited to protecting its lien, pursuant to section 5(b) of the Act ( 820 ILCS 305/5(b) (West 2018)).

¶ 10 On March 11, 2019, after a hearing, the circuit court entered an order granting the plaintiffs' motion to compel, overruling Continental's objections, ordering Continental to fully respond to the discovery within 14 days, and denying the plaintiffs' request for sanctions.

¶ 11 On March 25, 2019, Continental served its answer and response to the interrogatories and request for production of documents in which Continental reasserted the nonparty objection. Subject to the nonparty objection, Continental answered 15 of the 16 interrogatories. Interrogatory number 13 requested Continental to "[s]tate the names and job titles of all persons in your corporate control group and set forth all facts which support the control group status for each." Continental objected to interrogatory number 13 as follows: "Objection, no control group within the corporate structure of Intervenor has been implicated in this lawsuit and, therefore, this Interrogatory is vague, ambiguous[,] and unanswerable and neither seeks relevant information nor information reasonably calculated to lead to the discovery of relevant information."

¶ 12 Also subject to the nonparty objection, Continental responded to 45 of the 48 requests to produce and asserted additional objections to request numbers 1, 13, and 42. Request number 1 sought:

"Copies of any workers' compensation claims, and reports of injuries completed by supervisors and/or drivers employed by [Jack Cooper] and its corporate affiliates in your possession since five (5) years prior to the year of the manufacture of the trailer in question wherein a party alleged injuries sustained from a fall from a trailer upper deck or ladder in the [Jack Cooper] or Pacific Motor Trucking Company * * * fleets."

Continental responded to request number 1 with the nonparty objection and added: "Moreover, Intervenor has hundreds of claim files since it has insured [Jack Cooper] and has no knowledge where the trailer in question was manufactured. Subject to such objection and without waiving that objection, Intervenor can produce a claim listing of all claims involving [Jack Cooper]."

¶ 13 Request number 13 sought "[c]opies of any medical records of the Plaintiff already received by you or your attorneys from any source other than from the Plaintiff['s] attorneys." Continental responded to request number 13 with the nonparty objection and added:

"Subject to said objection, and without waiving same, Intervenor has no such documents other than Plaintiff Gregory Burdess'[s] workers' compensation file materials for the subject incident previously produced herein. In addition, Intervenor is in possession of medical records for three additional workers' compensation claims made by Plaintiff, Gregory Burdess. Those claim files are voluminous and will only be produced upon Plaintiffs' specific request."

¶ 14 Request number 42 directed Continental to "[p]roduce a true copy of the printout of injury summaries from your computer database(s) for injuries to [Jack Cooper] drivers since you began insuring [Jack Cooper] for workers['] compensation claims." Continental responded to request number 42 with the nonparty objection and added: "Subject to said objection, without waiving same and in addition to Intervenor's workers' compensation file materials previously produced herein, Intervenor can produce a claim listing of all claims involving Jack Cooper Transport Company."

¶ 15 On April 26, 2019, the plaintiffs filed a motion for sanctions, contending Continental's responses to the discovery requests were...