Ewing v. Liberty Mut. Ins. Co.

• Decision Date: 15 February 1985
• Docket Number: No. 5-84-0217,5-84-0217
• Parties: , 86 Ill.Dec. 35 Steve EWING, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 949

474 N.E.2d 949

130 Ill.App.3d 716, 86 Ill.Dec. 35

Steve EWING, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.

No. 5-84-0217.

Appellate Court of Illinois,

Fifth District.

Feb. 15, 1985.

W.A. Armstrong, Mitchell & Armstrong, Marion, for defendants-appellants.

Jona Goldschmidt, Carbondale, for plaintiff-appellee.

KARNS, Justice:

Ewing filed a multi-count complaint against appellant Liberty Mutual Insurance Company alleging that Liberty and its insured, Ewing's employer, had acted in concert to cause damage to plaintiff by committing certain acts related to his on-the-job injury and workers' compensation recovery. A confusing procedural history is involved in this case, including the dismissal of two prior appeals concerning Ewing's complaint. Remaining for our consideration is the question of whether plaintiff's third count, a bad faith action against Liberty, can be allowed to stand. The circuit court of Williamson County held that Ewing had stated a cause of action for breach of the duty of good faith owed by Liberty to Ewing and certified its ruling pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308). Because we believe that a substantial ground for difference of opinion exists in the court's ruling and that an immediate appeal may materially advance the ultimate termination of the litigation, we granted Liberty's petition for leave to appeal the denial of its motion to dismiss.

The allegations of the complaint can be summarized as follows:

Ewing was injured in April 1980 while performing his duties as a delivery man for United Parcel Service, Inc. (UPS). He applied for and received workers' compensation benefits during treatment and convalescence for knee and leg injuries. In July 1981 Ewing was informed by an agent of UPS that no alternate employment position would be made available. The following month, at the direction of UPS, Ewing was examined by Dr. George Scheer, who had been retained by Liberty as the insurer of UPS to evaluate Ewing's condition and ascertain the extent of his disability. Scheer's opinion was that Ewing was able to return to his former position. Ewing balked, advising UPS that his treating physicians recommended that he should not resume his duties as a driver.

In September 1981 Ewing was advised by UPS that he must return to his former job or that his workers' compensation benefits would be terminated. On September 14 Ewing returned to the job and was reinjured that day while attempting to enter a UPS truck. Subsequent to this injury and during the course of negotiations relative to his workers' compensation claim, Ewing filed for unemployment benefits because he was unable to support his family. The application was actively resisted by UPS who argued that Ewing could return to his delivery job. The protest was overruled in Ewing's favor.

Other events which gave rise to Ewing's lawsuit included the asserted practice on the part of Liberty and UPS of not rehiring employees who had filed workers' compensation claims or employees who sustained substantial injuries whether or not a claim was filed. In March 1982 an arbitration hearing took place to rule upon Ewing's grievance against UPS for not providing him with alternate employment, apparently in violation of a union contract. A UPS representative appeared at the hearing and falsely testified that Ewing was not disabled and could work at his former job. Ewing additionally complained that his request for Dr. Scheer's records was denied by UPS despite its knowledge that Ewing was investigating a malpractice claim against Scheer. Ewing's efforts to obtain the desired records was also frustrated by Liberty, and Ewing later learned that Scheer was a paid official of the insurer. All of these actions were said to be deliberate attempts to force Ewing's resignation or to compel him to resume his old job, and to have caused severe emotional distress and economic losses.

A fair reading of the complaint yields several allegations which purport to describe actionable conduct on the part of Liberty. Ewing complained that Liberty acted together with his employer to coerce him to resume a job which he was physically unable to handle by threatening him with loss of benefits. Ewing further asserted that the two companies jointly maintained a practice and policy of failing to rehire employees who had filed for workers' compensation benefits or who had sustained substantial injuries. Finally, Ewing charged Liberty with deliberately failing to honor his request for the medical records of the physician engaged by Liberty to examine Ewing and evaluate his condition. The complaint concludes that these actions amounted to a breach of Liberty's duty of good faith and fair dealing, and led to plaintiff's continuing loss of wages.

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recovery. (Ogle v. Fuiten (1984), 102 Ill.2d 356, 360-61, 80 Ill.Dec. 772, 774, 466 N.E.2d 224, 226.) We are required to interpret the allegations of the complaint in the light most favorable to the...