Laffoon v. Bell & Zoller Coal Co.
| Decision Date | 21 March 1975 |
| Docket Number | No. 73--158,73--158 |
| Parties | William LAFFOON, Plaintiff-Appellant, v. BELL & ZOLLER COAL CO., Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Harris & Lambert, Marion, for plaintiff-appellant.
John E. Jacobsen, Terry R. Black, Mt. Vernon, for defendant-appellee.
This is an appeal from a judgment of the trial court granting a motion for summary judgment in favor of the defendant-appellee and against the plaintiff-appellant.
The defendant contracted with John Refieuna of Refieuna Salvage Company for the dismantling of certain of its mining properties located at Mine No. 3 in Franklin County, Illinois. Plaintiff was an employee of Refieuna Salvage Company and was injured while working on the dismantling job. He filed an application for adjustment of claim with the Industrial Commission seeking workmen's compensation benefits. The Refieuna Salvage Company carried no workmen's compensation protection. The defendant, assuming that under section 1(a)(3) of the Workmen's Compensation Act (Ill.Rev.Stat., ch. 48, sec. 138.1(a) (3)) it had an obligation to pay such benefits, paid $9,218.19 which the plaintiff accepted. Plaintiff then commenced an action for damages against the defendant alleging violation of the Structural Work Act of Illinois (Ill.Rev.Stat., ch. 48, sec. 60 et seq.). The defendant moved for summary judgment and it is from an order granting such judgment that this appeal was taken.
Summary judgment should have been entered only if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. (Ill.Rev.Stat., ch. 110, sec. 57(3).)
The issue presented is whether defendant is an employer of plaintiff within the perview of the Workmen's Compensation Act (Ill.Rev.Stat.1969, ch. 48, sec. 138.1 et seq.) so as to be immune from liability for an alleged violation of the Structural Work Act as provided in section 5(a) of the Workmen's Compensation Act.
Initially, defendant contends that failure of the plaintiff to file a counteraffidavit admits the facts contained in its affidavit submitted in support of a motion for summary judgment. We agree. (Fooden v. Board of Governors of State Colleges and Universities, 48 Ill.2d 580, 272 N.E.2d 497; St. Louis Fire & Marine Ins. Co. v. Garnier, 24 Ill.App.2d 408, 164 N.E.2d 625.) The defendant's motion for summary judgment and an attached affidavit asserted that defendant had contracted with Refieuna Salvage Company to demolish a building on mining premises, that plaintiff was an employee of Refieuna Salvage and sustained injuries in the performance of his work, that plaintiff filed a workmen's compensation claim against Refieuna Salvage which company carried no workmen's compensation insurance and did not pay workmen's compensation to plaintiff, and that defendant was compelled to and did pay plaintiff workmen's compensation benefits in accordance with the provisions of section 1(a)(3) of the Illinois Workmen's Compensation Act and accordingly defendant was 'an employer' and pursuant to section 5(a) of the Workmen's Compensation Act was immune from plaintiff's suit. The affidavit attached to the motion indicated that defendant had paid plaintiff workmen's compensation benefits totaling $9,218.19.
Section 1(a)(3) of the Illinois Workmen's Compensation Act provides in part:
'Any one engaging in any business or enterprise referred to in subsections 1 and 2 of Section 3 of this Act who undertakes to do any work enumerated therein, is liable, to pay compensation to his own immediate employees in accordance with the provisions of this Act, and in addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he is liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor has insured, in any company or association authorized under the laws of this State to insure the liability to pay compensation under this Act, or guaranteed his liability to pay such compensation.'
Two questions of interpretation are presented by this section. Under its provisions, was defendant as a matter of law required to pay compensation; and if so, was defendant an 'employer' entitled to the immunity provisions of section 5(a) of the Workmen's Compensation Act?
Since it was uncontradicted that Refieuna carried no workmen's ocmpensation insurance, and it is implied in defendant's affidavit that Refieuna also did not guarantee its liability, and since defendant did 'directly or indirectly' engage 'any contractor * * * to do any such work,' there was an obligation of the part of defendant to pay workmen's compensation to the plaintiff.
Did, then, defendant's obligation to pay workmen's compensation under section 1(a)(3) of the Act make it an employer entitled to the immunity from action provided in section 5(a) of the Act. Defendant concedes that it was not the direct employer of plaintiff but argues that by reason of its payments of workmen's compensation benefits under section 1(a)(3) of the Act it became the 'statutory employer' of plaintiff and as such it is entitled to the immunity from common law or statutory action provided to employers by section 5(a) of the Act. Section 5(a) provides in part:
'No common law or statutory right to recover damages from 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 this Act. * * *.'
There are no Illinois cases directly on the issue but we find the case of Baker & Conrad v. Chicago Heights Const. Co., 364 Ill. 386, 4 N.E.2d 953, close and persuasive. That case involved a question of whether a 'statutory employer' who had been required to pay workmen's compensation to a person not directly his employee by reason of the failure of the sub-contractor to procure insurance was the 'employer' of such person for purposes of subrogation under section 31 (now section 1(a)(3)) of the Act. The Supreme Cort held that such person was the employer, stating:
'The employer here contemplated may be the immediate employer or one of a succession of employers engaged in the original undertaking, or some part thereof, who has paid the compensation for the injuries to or death of the workman. For the purpose of the act, if not the immediate employer, he may be called a 'statutory employer.' * * * If there are employees of a person other than his immediate employees, it must follow that there is an 'employer' who is not an 'immediate employer,' viz., a contractual one, not supervising or coming in actual contact with the employee and with no primary authority to order his labor nor power to discharge, and not immediately liable for his wages, but nevertheless an employer for the purpose of this section of the law. It is immaterial for the aim of the statute whether he be considered an 'indirect employer' or a 'statutory employer."
The court also stated:
'It was not the thought of the General Assembly to impose a liability upon an employer for compensation under section 31 regardless of the degree he occupied in the subdivision of contracts under which the work was undertaken, nor how far removed from being the person who in fact employed the laborer, without affording such employer an opportunity for reimbursement and subrogation in those instances where the compensation paid by him arose out of injuries to or death of the workman caused by the negligence of some other contractor or a third person.'
With respect to the question whether or not a 'statutory employer' is entitled to the immunity provided in section 5(a), there is again no Illinois authority directly in point, though it might forcefully be argued from Baker that if a 'statutory employer' is entitled to the subrogation provision of the Workmen's Compensation Act, such categorization should also entitle him to the benefits or subject him to the burdens of other provisions of the Workmen's Compensation Act.
Cases are not wanting from other jurisdictions supporting the theory that a 'statutory employer' who has been required to pay workmen's compensation is entitled to immunity from a common law action. Basically there are two types of statutes imposing liability or potential liability upon the 'statutory employer.' In some states the liability imposed is termed 'primary' or 'concurrent' and under this type of statute the 'statutory employer' is liable for workmen's compensation equally with the common law employer and the employee generally has the choice of claiming benefits from either. The cases under such statutes consistently grant immunity from common law suit to the statutory employer. Examples of cases from primary liability states are State to Use of Hubert v. Benjamin F. Bennett Bldg. Co., 154 Md. 159, 140 A. 52, 55, (1928); Swartz v. Conradis, 298 Pa. 343, 148 A. 529; Fox v. Dunning, 124 Okl. 228, 255 P. 582 (1927); Evans v. Newport News Shipbuilding & Dry Dock Co., D.C.Va., 243 F.Supp. 1017, affirmed 4 Cir., 361 F.2d 364; Whitaker v. Douglas, 179 Kan. 64, 292 P.2d 688.
The second type of 'statutory employer' statute imposes 'secondary' liability on the remote or statutory employer. This is the type of statute Illinois has and it imposes liability on the remote employer only if the contractor or sub-contractor has in fact failed to provide workmen's compensation protection. There is a split of authority between the states having secondary liability statutes as to whether the remote employer is immune from common law suit when the contractor or sub-contractor does in fact have workmen's compensation...
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