Hiatt v. Ill. Tool Works

• Citation: 2018 IL App (2d) 170554,127 N.E.3d 555,431 Ill.Dec. 22
• Decision Date: 28 September 2018
• Docket Number: No. 2-17-0554,2-17-0554
• Parties: Michael HIATT, Plaintiff-Appellant, v. ILLINOIS TOOL WORKS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 170554

127 N.E.3d 555

431 Ill.Dec. 22

Michael HIATT, Plaintiff-Appellant,

v.ILLINOIS TOOL WORKS, Defendant-Appellee.

No. 2-17-0554

Appellate Court of Illinois, Second District.

Opinion filed September 28, 2018

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

¶ 1 Plaintiff, Michael Hiatt, appeals an order of the circuit court of Du Page County granting summary judgment in favor of defendant, Illinois Tool Works (ITW). He also appeals certain orders that were in the procedural progression to that final order. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff was employed by Western Plastics, Inc. (Western Plastics). In October 2007, he sustained serious injuries at work while cleaning a machine. Plaintiff filed suit against multiple parties. All defendants other than ITW either were dismissed or entered into settlement agreements with plaintiff. Plaintiff advanced three legal theories against ITW: (1) ITW was engaged in a joint venture with Western Plastics, (2) ITW retained control over Western Plastics, and (3) ITW had actual or constructive knowledge that the machine at issue was unreasonably dangerous. In January 2014, the trial court granted ITW's original motion for summary judgment, finding that there were no genuine issues of material fact with respect to any of plaintiff's theories. Additionally, the court sua sponte determined that, even if ITW were engaged in a joint venture with Western Plastics, the exclusive-remedy provision of the Workers' Compensation Act (Act) ( 820 ILCS 305/1 et seq. (West 2014) ) would prohibit plaintiff's recovery. That provision states, in pertinent portion: "[N]o common law or statutory right to recover damages from the employer, his insurer, his broker, * * * or the agents or employees of any of them 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 this Act * * *." Id. § 5(a).

¶ 4 In December 2014, this court reversed the summary judgment and remanded the matter for further proceedings. Hiatt v. Western Plastics, Inc. , 2014 IL App (2d) 140178, ¶ 1, 394 Ill.Dec. 561, 36 N.E.3d 852 ( Hiatt I ). Although we agreed that summary judgment was appropriate with respect to plaintiff's retained-control and unreasonably-dangerous-machine theories ( id. ¶¶ 117, 121 ), we held that there was a genuine issue of material fact as to whether ITW and Western Plastics were engaged in a joint venture ( id. ¶ 102 ).

¶ 5 We also determined that the trial court erred in sua sponte raising the issue of the exclusive-remedy provision of the Act. Id. ¶ 105. We noted that "[t]he exclusive-remedy provision is an affirmative defense and is forfeited if not timely raised." Id. Furthermore, we explained, a defendant might make a strategic decision not to assert that defense. Id. Given that the parties took more than 40 depositions during more than five years of motion practice and discovery, we reasoned that, "[c]learly, ITW made a strategic decision not to assert the exclusive-remedy provision as a defense, in the hope that it could avoid liability altogether by defeating plaintiff's tort claim." Id. ¶ 106. We added that, "[i]f ITW were permitted to raise the exclusive-remedy provision as a defense at this late stage, despite its earlier decision not to assert the defense, then plaintiff would be prejudiced." Id. While we recognized that an appellee generally may urge on appeal any point in support of the trial court's judgment, so long as the factual basis for that point was before the trial court ( id. ¶ 107 ), we determined that such rule did not apply here:

"As we have said, ITW chose to litigate this case by defending against plaintiff's tort claim on the merits. Having made the strategic decision not to raise the affirmative defense of the exclusive-remedy provision, it cannot now change its theory on appeal." Id. ¶ 108.

¶ 6 ITW did not file a petition for rehearing in this court. It did, however, petition our supreme court for leave to appeal. That petition was denied. Hiatt v. Western Plastics, Inc. , No. 118851, 392 Ill.Dec. 365, 32 N.E.3d 673 (Ill. May 27, 2015).

¶ 7 On remand to the trial court, plaintiff filed a one-count seventh amended complaint¹ against ITW. In February 2016, ITW filed its answer along with its affirmative defenses. As its third affirmative defense, ITW asserted that it was immune from liability pursuant to the exclusive-remedy provision of the Act.

¶ 8 Plaintiff moved to strike ITW's exclusive-remedy defense as barred by Hiatt I under the law-of-the-case doctrine. In its memorandum opposing plaintiff's motion, ITW argued that Hiatt I "in no way purported to foreclose litigation of the [exclusive-remedy] defense on remand." ITW urged the trial court to analyze its right to raise a new defense "under the ordinary liberal rules regarding amendment of pleadings." To that end, ITW insisted that plaintiff would have a sufficient opportunity to rebut the new defense and would not be surprised or prejudiced. Nor, ITW claimed, would the defense necessitate conducting additional discovery.

¶ 9 While the parties briefed plaintiff's motion to strike the exclusive-remedy defense, ITW filed a motion for summary judgment. According to ITW, plaintiff faced a dilemma. Specifically, ITW maintained, if there was no joint venture between Western Plastics and ITW, then ITW would not be liable for plaintiff's injuries. If, on the other hand, there was a joint venture, then ITW would be shielded by the exclusive-remedy provision of the Act.

¶ 10 In his memorandum opposing summary judgment, plaintiff reiterated his position that Hiatt I precluded ITW from asserting the exclusive-remedy defense. In any event, plaintiff argued, the exclusive-remedy provision did not apply, given that ITW did not pay for his workers' compensation benefits. Plaintiff also moved to strike the exhibits that were attached to ITW's motion for summary judgment, for lack of foundation.

¶ 11 Following a hearing on August 10, 2016, the trial court denied plaintiff's motion to strike ITW's exclusive-remedy defense. The trial court recognized that it was obligated to follow this court's mandate. The mandate, the trial court noted, did not contain any particular directions apart from indicating that the case was remanded for further proceedings. When a mandate does not contain directions, the trial court explained, it is necessary to look to and follow the appellate court's holdings. The question for the trial court to answer was, "what did the Appellate Court rule on whether or not the defendant could raise that issue in the Trial Court upon a remand?"

¶ 12 After examining the disposition in Hiatt I , the court stated as follows:

"And the way I read this, because there's nothing in those paragraphs anywhere in the mandate or in the opinion that even discusses whether ITW could raise that on remand. I read this and the discussion of the cases by the Appellate Court to be discussing whether or not they would exercise their right to affirm the Summary Judgment based on an alternative basis that was first raised in the Appellate Court and that it would be prejudicial to the plaintiff to allow that to occur in the Appellate Court. And I think it clearly says it cannot now change its theory on appeal; that's it, on appeal.

So in reading this opinion, as I said multiple times, and dissecting it and looking at the cases that they rely on, I am finding that the interpretation of this opinion which I readily admit I have to follow is that it, the Appellate Court declined to affirm the entry of Summary Judgment on the basis of exclusive remedy of the Worker's Comp Act [sic ] because it would be prejudicial to the plaintiff to consider that for the first time on appeal. But they did not speak and it's completely silent as to whether the defendant could raise that affirmative defense in the Trial Court upon remand.

And, therefore, on the basis of the law of the case, the court is denying the Motion to Strike the Third Affirmative Defense."

¶ 13 Having rejected plaintiff's law-of-the-case argument, the court turned to the issue of whether it would be "too late and prejudicial to the plaintiff" for ITW to raise the exclusive-remedy defense on remand. After considering the factors outlined in Loyola Academy v. S & S Roof Maintenance, Inc. , 146 Ill. 2d 263, 166 Ill.Dec. 882, 586 N.E.2d 1211 (1992), the court allowed ITW to raise the defense. The court granted plaintiff's motion to strike two of the exhibits supporting ITW's motion for summary judgment. Over plaintiff's objection, however, the court also granted ITW leave to file documents to authenticate those exhibits. The matter was continued for a hearing on ITW's summary judgment motion.

¶ 14 Plaintiff moved the court to reconsider its order denying his motion to strike ITW's exclusive-remedy defense. On December 15, 2016, the court denied that motion. On July 19, 2017, the court granted ITW's motion for summary judgment.

¶ 15 Plaintiff filed a timely notice of appeal from three orders: (1) the August 10, 2016, order denying his motion to strike ITW's exclusive-remedy defense; (2) the December 15, 2016, order denying his motion to reconsider the August 10 order; and (3) the July 19, 2017, order granting summary judgment in favor of ITW.

¶ 16 II. ANALYSIS

¶ 17 Plaintiff advances four arguments: (1) pursuant to the law-of-the-case doctrine, ITW was precluded from raising the exclusive-remedy defense; (2) the Loyola factors did not support the trial court's decision to allow ITW to raise the defense; (3) the court erred in allowing ITW multiple "bites at the apple" in seeking summary judgment; and (4) summary judgment was improper because the evidence showed that ITW did not contribute to plaintiff's workers' compensation premiums.

¶ 18 A. Law of the Case

¶ 19 Plaintiff contends that,...