Holten v. Syncreon N. Am., Inc.

• Decision Date: 31 May 2019
• Docket Number: No. 2-18-0537,2-18-0537
• Citation: 432 Ill.Dec. 510,129 N.E.3d 728,2019 IL App (2d) 180537
• Parties: Dellace C. HOLTEN Jr., Plaintiff-Appellant, v. SYNCREON NORTH AMERICA, INC.; Marion Sapron; Android Industries-Belvidere, LLC ; Cobalt Industrial Reit; Tovar Snow Professionals, Inc.; and Corporate Employment Services, Inc., Defendants (Android Industries-Belvidere, LLC, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 180537

129 N.E.3d 728

432 Ill.Dec. 510

Dellace C. HOLTEN Jr., Plaintiff-Appellant,

v. SYNCREON NORTH AMERICA, INC.; Marion Sapron; Android Industries-Belvidere, LLC ; Cobalt Industrial Reit; Tovar Snow Professionals, Inc.; and Corporate Employment Services, Inc., Defendants(Android Industries-Belvidere, LLC, Defendant-Appellee).

No. 2-18-0537

Appellate Court of Illinois, Second District.

Opinion filed May 31, 2019

Timothy J. Lowery, of Lowery & Associates, LLC, of Barrington, for appellant.

Nicholas Johnson and Terrence F. Guolee, of Querrey & Harrow, Ltd., of Chicago, for appellee.

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

¶ 1 Plaintiff, Dellace C. Holten Jr., appeals from the trial court's orders granting summary judgment in favor of defendant Android Industries-Belvidere, LLC (Android), and denying plaintiff's motion to vacate and reconsider. The trial court held that plaintiff's personal-injury action was barred by the exclusive-remedy provision of the Workers' Compensation Act (Act) ( 820 ILCS 305/5(a) (West 2012)) because there was no genuine issue of material fact with respect to the existence of a borrowed-employee relationship, as set forth in section 1(a)(4) of the Act (id. § 1(a)(4)), pursuant to which Staff on Site, Inc. (Staff on Site), a temporary staffing agency, sent plaintiff to work at Android. Plaintiff argues on appeal that summary judgment should have been granted in his favor on Android's exclusive-remedy defense, because it was undisputed that Android neither paid plaintiff's workers' compensation insurance premiums or benefits nor was obliged to reimburse Staff on Site for the expenses. Alternatively, plaintiff argues that there were, at a minimum, genuine issues of material fact as to whether a borrowed-employee relationship existed. For the reasons set forth below, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The following is derived from the pleadings, depositions, and affidavits on file. Android, a manufacturer, contracted with Staff on Site for the provision of temporary employees. As pertinent to the issue here, the contract between Android and Staff on Site provided:

"1. Staff On Site and Client agree that Staff On Site will provide temporary employees (‘Employees’) for Client. Client agrees that it will pay for said employees at the rate set forth in the attached proposal which, from time to time, may be amended by both parties in writing.

2. Client agrees that Staff On Site's obligation to Client is limited to assigning employees (‘Employees’) with certain skills and abilities; maintain personnel and payroll records; calculate and pay wages; withhold and remit payroll taxes and other government-mandated charges (including worker[s'] compensation); hire, assign, reassign, counsel, discipline and discharge Employees and to be responsible for and handle work-related claims and complaints. Client further agrees to notify Staff On Site of any placement of employees working in conjunction with any Government Contract."

It was undisputed that Staff on Site maintained the requisite workers' compensation insurance.

¶ 4 Staff on Site hired plaintiff in approximately October or November 2011 and assigned plaintiff to Android's industrial facility in Belvidere, as a forklift operator. Plaintiff alleged that on January 20, 2012, he sustained injuries when the forklift he was operating at Android fell from inside a tractor-trailer as the tractor-trailer moved away from a loading dock.

¶ 5 Plaintiff filed a workers' compensation claim against Android. However, Android directed plaintiff to file the claim against Staff on Site. Accordingly, plaintiff filed the claim against Staff on Site and received workers' compensation benefits.

¶ 6 Plaintiff then filed this lawsuit against Android and other entities (none of which is a party to this appeal).¹ The operative complaint alleged negligence against Android. Android filed affirmative defenses, including that, because it was a borrowing employer under section 1(a)(4) of the Act (id. ), plaintiff's claims were barred by the exclusive-remedy provision of the Act (id. § 5(a)). The parties filed cross-motions for summary judgment on the exclusive-remedy defense. The evidence submitted with the motions included the deposition testimony of plaintiff and Brian Brown (Android's human resources manager), a verified statement from plaintiff, an affidavit from Brown, the contract between Android and Staff on Site, and the correspondence from Android redirecting plaintiff's workers' compensation claim.

¶ 7 At Brown's deposition, regarding plaintiff's assignment to Android, Brown explained that Android had notified Staff on Site that Android "needed people with certain skill sets, and [plaintiff] was one of the people that they referred—that they sent over." Plaintiff was "presented to [Android] as being a very skilled, qualified material handler, forklift driver," and he passed a forklift test before Android allowed him to "drive on a regular production basis."

¶ 8 Brown further testified regarding plaintiff's work at Android:

"Q. You answered the questions about how [plaintiff] got on the Android property. You called Staff on Site or somebody called Staff on Site to send somebody over. They sent over [plaintiff], is that correct?

A. Correct.

Q. Once [plaintiff] was here, did he report to Android's facility every day or did he have to go first to Staff on Site and then come check in here?

A. No, he just came from home to here.

Q. Okay. And when he left Android's facility, did he have to go back to Staff on Site before he returned home?

A. No.

Q. Okay. While he was on Android's property, did Staff on Site have any insight or any input on how he did his job on the day-to-day basis?

A. No.

Q. Okay. Were there supervisors at Android that would tell [plaintiff] what to do on a daily basis[?]

A. Yeah.

Q. Before [plaintiff] would start his shift, would there be safety meetings or shift meetings before his shift[?]

A. Materials always had a startup meeting.

Q. Okay. The startup meeting, was any Staff on Site personnel at those startup meetings or were they just Android personnel and the temps that were sent over there[?]

A. Just the people who were here on assignment.

Q. Okay. As far as the control over [plaintiff's] work, an Android supervisor would be controlling what he did and when he did it and how often he would do that?

A. Give him directions for the day?

Q. Yeah.

A. The assignments? It would be here, yeah, people from here."

Brown also explained that, when a temporary employee arrives, "we say okay, here's the equipment, here's the hours of work, here's what we want you to do. We provide the training and they do the job." Brown specified that Android owned or leased the equipment plaintiff used.

¶ 9 Regarding Android's ability to terminate a worker placed by Staff on Site, Brown testified that Android had the right to remove the worker from its facility and tell the worker to return to Staff on Site. Brown further testified:

"[W]e don't fire them. We can ask the staffing agency not to have them return and—because they're their employees, not ours. So we can say please, you know, have—end their assignment here, but—you know, it's a matter of semantics. We don't—I don't go out there and tell a temp that you're fired. We just notify the staffing agency to please not have them come back."

Brown acknowledged that Staff on Site could still send the worker back but explained that "at the very least the working relationship would end with the agency" and that Android might need to call the police if "somebody just keeps showing up." Brown surmised, "They could do it, but, like I said, it would get old in a hurry."

¶ 10 In his affidavit, Brown attested that plaintiff worked primarily the second shift at Android and that plaintiff's working hours were the same as those of other second-shift employees. In this regard, Brown attested that Android controlled plaintiff's starting time and ending time and had the discretion to give plaintiff fewer or more hours. Further, according to Brown's affidavit, Staff on Site did not have supervisors present at Android and plaintiff took direction from Android employees.

¶ 11 Plaintiff testified at his deposition about his placement at Android:

"Q. How [did] you become employed at Android Industries?

A. I never was employed there. I was employed for—through Staff on Site.

* * *

Q. Was your first and only placement by Staff on Site, Android Industries?

A. Yes."

¶ 12 Plaintiff further testified:

"Q. Staff on Site, at some point, told you that you could work at Android, is that correct?

A. Yes.

Q. And you agreed to go to Android to work as a forklift operator[?]

A. Yes."

¶ 13 Regarding his duties at Android, plaintiff testified that he "started off loading and unloading semis on the south side of the plant which would have been parts coming in and going out to supply the line." Plaintiff explained that his duties changed before the accident. He testified that, "because [he] was such a good forklift driver, they trusted [him] with the engines and transmissions which is a little more complicated than your general forklift or your general material handling." Thus, "[a] day or two before the accident," his assignment changed to "engines and transmissions" and "they [took him] to the other side and gave [him] a day or two of kind of breaking [him] in back there of how things go."

¶ 14 Regarding the source of the change in his duties, plaintiff testified:

"Q. Okay. Who decided to change your work?

A. They did because—

Q. And that is going to be my question. Who is they?

A. They would be—His name is [sic ] Mike and Wil.

Q. And—

A. Now, whether they got higher up. I don't know.

Q. Okay. And Mike and Wil, were they your supervisors while you were at Android?

A. They were who instructed me on what to do, yes.

Q. And who did Mike and Wil work for?

A. I am assuming Android."

¶ 15 Plaintiff was questioned about his understanding as to Android's ability to terminate him. Initi...