Copass v. Illinois Power Co.
| Decision Date | 29 March 1991 |
| Docket Number | No. 4-90-0642,4-90-0642 |
| Citation | 211 Ill.App.3d 205,569 N.E.2d 1211 |
| Parties | , 155 Ill.Dec. 600 Marilyn K. COPASS, Executor of the Estate of David W. Copass, Deceased, and Marilyn K. Copass, Individually, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, an Illinois Corporation, and Ken Robinson, Defendants-Appellees (Plidco International, Inc., an Ohio Corporation, Field & Shorb Co., an Illinois Corporation, McCartin-McCauliffe Mechanical Contractors, Inc., an Illinois Corporation, Defendants). |
| Court | United States Appellate Court of Illinois |
Kehart, Shafter, Hughes & Webber, P.C., Decatur (Charles C. Hughes, Douglas S. Lake, of counsel), for plaintiff-appellant.
Arnold F. Blockman, Jerome P. Lyke, Hatch, Blockman, McPheters, Fehrenbacher & Lyke, Champaign, for defendants-appellees.
This is a wrongful death action brought against defendants Illinois Power Company (Illinois Power) and Ken Robinson, an employee of Illinois Power. Plaintiff's decedent was also an Illinois Power employee. The circuit court dismissed all counts against Illinois Power and Robinson with prejudice, and plaintiff appeals. We affirm.
Plaintiff, Marilyn Copass, filed a 10-count complaint for the wrongful death of her husband, David, who was killed on March 31, 1989, while working on an Illinois Power gas pipeline. (See Ill.Rev.Stat.1989, ch. 70, pars. 1 through 2.2.) The work performed by David involved joining two sections of a 12-inch gas pipeline by placing a mechanical sleeve (the "Plidco Split+Sleeve") into position, which was then "torqued tight." The newly joined pipes were then brought up to pressure (300 psi), and David was testing this joint for leaks when the explosion occurred.
Count I alleged that Illinois Power committed 16 violations of the Public Utilities Act () "with a conscious disregard for the safety of [d]ecedent, and with a substantial certainty of injury to [d]ecedent," and that these violations were the proximate cause of his death. Illinois Power allegedly violated the Public Utilities Act by using a defective mechanical sleeve, failing to properly instruct decedent or other employees on the proper methods for securing the sleeve, and failing to warn of its danger. Paragraph 27 of count I alleged that Illinois Power "directed and encouraged said violations, by and through its officers and agents." Plaintiff also alleged that Illinois Power was David's employer at the time of the explosion, and that David was killed in the course of his employment.
Count II against Illinois Power alleged intentional misrepresentation "by and through its agent Ken Robinson." Plaintiff alleged that Robinson misrepresented that the mechanical sleeve was appropriate for the joint and that he had used it before in similar applications.
Count IX against Robinson alleged that he committed "intentional acts which said Defendant knew, or should have known[,] created a substantial certainty of risk of harm to the [d]ecedent," and which "approximately" caused his death. The acts include, among others, failing to properly instruct David and other crew members how to increase the pressure in the pipe; telling crew members he had previously used this sleeve under similar conditions when he had not; failing to follow appropriate procedure for determining whether the sleeve should be used in this case; and failing to check the alignment of the new or existing gas pipeline. The complaint further alleged that Robinson performed these acts with conscious disregard for David's safety and with knowledge of the dangerous propensities of a high-pressure, high-volume gas distribution system.
Count X, also against Robinson, alleged intentional misrepresentation, in that Robinson told David he spoke with Plidco (the manufacturer of the sleeve) and had been advised that the Plidco Split+Sleeve was appropriate for joining the two pipes. Plaintiff also alleged that Robinson represented he was familiar with the Plidco Split+Sleeve because he had previously used or supervised the use of such sleeves.
Three days after the accident, a claims supervisor for Illinois Power informed plaintiff by letter that because "David was working at his normal employment, you are entitled to certain benefits under the Illinois Worker's [sic ] Compensation Act." Plaintiff thereafter received periodic payments from Illinois Power, and as of April 9, 1990, the date on which defendants' motion to dismiss was filed, those payments totalled $21,354.32. As of April 9, 1990, plaintiff had not filed a workers' compensation claim, executed a written settlement of a claim, or otherwise taken any affirmative action before the Industrial Commission (Commission).
Defendants moved to dismiss counts I, II, IX, and X, arguing that these counts were barred by the exclusivity provisions of the Workers' Compensation Act (Act) (Ill.Rev.Stat.1989, ch. 48, pars. 138.5(a), 138.11) because plaintiff had already accepted workers' compensation benefits, i.e., the payments from Illinois Power. In the alternative, defendants argued the counts failed to allege that defendants acted with the specific intent to injure, which they claimed was necessary to allege an intentional tort action against an employer or co-employee. Defendants further claimed that in the counts against Illinois Power, plaintiff failed to sufficiently allege that Illinois Power either commanded or expressly authorized Robinson's tortious actions.
Defendants submitted an affidavit from the Illinois Power claims supervisor, stating that plaintiff requested and "received weekly Illinois Workers' Compensation death benefits" directly from Illinois Power since the date of the accident, in addition to receiving payment for funeral expenses and an ambulance bill, "as provided under the Illinois Workers' Compensation Act." The affidavit included correspondence between the claims supervisor and plaintiff, informing her that she was entitled to benefits. It also included correspondence from plaintiff's attorney to the claims supervisor, questioning how he calculated the average weekly wage under the Act.
The circuit court dismissed counts I, II, IX, and X with prejudice, basing its order on (1) the plaintiff's failure to allege a specific intent to injure, and (2) the exclusivity provisions of the Act, because it found plaintiff had accepted workers' compensation benefits from Illinois Power. (See Ill.Rev.Stat.1989, ch. 110, pars. 2-615, 2-619.) The court granted plaintiff's motion for a Rule 304(a) finding (134 Ill.2d R. 304(a)), and this appeal followed.
This case comes before us on the pleadings. Accordingly, defendants' motion to dismiss admits all well-pleaded facts and inferences. Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 232, 41 Ill.Dec. 776, 777, 408 N.E.2d 198, 199; Bellmer v. Charter Security Life Insurance Co. (1982), 105 Ill.App.3d 234, 235, 61 Ill.Dec. 34, 36, 433 N.E.2d 1362, 1364.
We first consider whether plaintiff is barred from pursuing her statutory and common law remedies by initially accepting workers' compensation death benefits from Illinois Power. The Act generally provides the exclusive remedy for on-the-job deaths such as this one. Sections 5(a) and 11 of the Act state, in pertinent part, as follows:
"No common law or statutory right to recover damages from the employer * * * or the agents [of the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of the Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury."
* * * * * *
The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer * * * for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act * * *. Ill.Rev.Stat.1989, ch. 48, pars. 138.5(a), 138.11.
To escape the exclusivity-of-remedy rule, plaintiff must prove the injury (1) was not accidental, (2) did not arise from his or her employment, (3) was not received during the course of employment, or (4) was noncompensable under the Act. Meerbrey v. Marshall Field & Co. (1990), 139 Ill.2d 455, 463, 151 Ill.Dec. 560, 564, 564 N.E.2d 1222, 1226.
An injured employee is not permitted to seek workers' compensation benefits on a claim that the injuries are compensable and pursue a common law action for an intentional tort. (Collier, 81 Ill.2d at 241, 41 Ill.Dec. at 782, 408 N.E.2d at 204; Fregeau v. Gillespie (1983), 96 Ill.2d 479, 486, 71 Ill.Dec. 716, 719-20, 451 N.E.2d 870, 873-74.) Once the employee takes the express position that the injury is compensable under the Act, he is subsequently barred from taking the mutually exclusive position that the injury was intentional. While "an intentional tortfeasor should not be able to shield his liability with the exclusivity provisions of a compensation statute premised on insuring accidental injuries [citations] * * * if the injured party receives compensation pursuant to the act, he or she should not be heard to subsequently allege their intentional nature." Collier, 81 Ill.2d at 239-40, 41 Ill.Dec. at 782, 408 N.E.2d at 204, citing 2A A. Larson, Workmen's Compensation §§ 68.12 n. 9, 67.22 (1976).
In their motion to dismiss, defendants argue that plaintiff has elected to receive compensation under the Act rather than pursue a common law action. Defendants assert that the $21,354.32 Illinois Power had paid plaintiff demonstrates her election to seek workers' compensation benefits. As further support, defendants argue that the payments by Illinois...
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