Mendez v. Atl. Painting Co., Inc.

• Decision Date: 29 September 2010
• Docket Number: No. 1-09-2888.,1-09-2888.
• Citation: 344 Ill.Dec. 378,936 N.E.2d 1135,404 Ill.App.3d 648
• Parties: Maria MENDEZ, as Special Administrator for the Estate of Jaime Mendez, Deceased, Plaintiff-Appellant, v. ATLANTIC PAINTING COMPANY, INC., Defendant-Appellee and Third-Party Plaintiff (Eagle Painting and Maintenance Company, Third-Party Defendant).
• Court: United States Appellate Court of Illinois

936 N.E.2d 1135 404 Ill.App.3d 648 344 Ill.Dec. 378 Maria MENDEZ, as Special Administrator for the Estate of Jaime Mendez, Deceased, Plaintiff-Appellant, v. ATLANTIC PAINTING COMPANY, INC., Defendant-Appellee and Third-Party Plaintiff (Eagle Painting and Maintenance Company, Third-Party Defendant). No. 1-09-2888. Appellate Court of Illinois, First District, Third Division. Sept. 29, 2010.

Curcio Law Offices, Chicago (John A. O'Meara, Tracy A. Robb, of counsel), for Plaintiff-Appellant.

Smith Amundsen LLC, Chicago (Michael Resis, Ryan Jacobson, Timothy L. Epstein, of counsel), for Defendant-Appellee.

Justice NEVILLE delivered the opinion of the court:

[344 Ill.Dec. 379, 404 Ill.App.3d 649]

In this case we must decide whether Kentucky law or Illinois law governs a lawsuit arising from the death inKentucky ofan Illinois resident working for aN illinois corporation. jaimE mendez, an employee of Eagle Painting and Maintenance Co., died while working on a project Eagle undertook as a subcontractor of another Illinois corporation, Atlantic Painting Co. Jaime's widow, Maria Mendez, received workers' compensation under Illinois law. She sued Atlantic in Illinois for negligence. The trial court granted Atlantic's motion for summary judgment, holding that Kentucky's substantive law applied to the lawsuit and that Kentucky's law immunized Atlantic against Maria's lawsuit. Relying on section 184 of the Restatement (Second) of Conflict of Laws (1971), we too find that Kentucky's substantive law applies to this cause of action. Accordingly, we affirm the order granting Atlantic's motion for summary judgment.

BACKGROUND

In June 2004, Atlantic and the Commonwealth of Kentucky signed a contract by which Kentucky agreed to pay Atlantic to paint and clean a bridge across the Ohio River. Atlantic then signed a contract, listing Atlantic as contractor and Eagle as subcontractor, with Eagle agreeing to perform part of the painting and cleaning on the bridge. On July 15, 2005, Jaime fell to his death from a platform from which he had painted part of the bridge. An arbitrator awarded Maria workers' compensation benefits of $700 per week for 20 years.

Maria, as administrator of Jaime's estate, sued Atlantic, charging that its negligence caused Jaime's death. Atlantic filed a motion for summary judgment, arguing that Kentucky law applied to the claim, and that the Kentucky's Workers' Compensation Act (Kentucky Act) (Ky.Rev.Stat. Ann. § 342. 690 (LexisNexis 2005)), gave Atlantic immunity from Maria's lawsuit. The parties presented depositions concerning the ties between the cause of action and Kentucky and Illinois. All work on the project took place in Kentucky. Eagle's employees all stayed either in Kentucky or across the river in Indiana while they worked on the project. Kentucky police and paramedics responded to the accident. Jaime lived in Illinois with his wife and three children. Atlantic and Eagle both had their principal offices in Illinois, and they signed their contract in Illinois. Most of Eagle's employees who worked on the project resided in Illinois.

The trial court found that Kentucky had more significant contacts with the accident, so Kentucky's substantive law applied to the cause of action. The court held that Atlantic qualified as a contractor and Eagle as a subcontractor under the Kentucky Act and that the Act provided immunity for contractors like Atlantic, whose subcontractors paid a workers' compensation claim for injuries to an employee of the subcontractor. See Ky.Rev.Stat. Ann. § 342.690 (LexisNexis 2005). The trial court entered an order that granted Atlantic's motion for summary judgment and Maria appeals.

ANALYSIS

Standard of Review

Reviewing courts review orders granting motions for summary judgment de novo. Hernandez v. Alexian Brothers Health System, 384 Ill.App.3d 510, 519, 323 Ill.Dec. 460, 893 N.E.2d 934 (2008). Maria argues that the trial court erred when it applied Kentucky's substantive law rather than Illinois's substantive law to the facts of this case. We also review choice of law determinations de novo. Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 165, 316 Ill.Dec. 505, 879 N.E.2d 893 (2007).

[344 Ill.Dec. 381, 936 N.E.2d 1138]

Whether Kentucky Law Conflicts With Illinois Law

Before we analyze the issue of which state's law applies, we must determine whether Kentucky's law conflicts with Illinois law in any material way. Malatesta v. Mitsubishi Aircraft International, Inc., 275 Ill.App.3d 370, 374, 211 Ill.Dec. 710, 655 N.E.2d 1093 (1995). The laws conflict if the result we would reach under Kentucky's substantive law differs from the result we would reach under Illinois's substantive law. Malatesta, 275 Ill.App.3d at 374, 211 Ill.Dec. 710, 655 N.E.2d 1093.

Both Kentucky law and Illinois law make workers' compensation the employee's exclusive remedy against his employer.820 ILCS 305/11 (West 2004); Hunter v. Southworth Products Corp., 333 Ill.App.3d 158, 161, 266 Ill.Dec. 676, 775 N.E.2d 238 (2002); Ky.Rev.Stat. Ann. § 342.690(1) (LexisNexis 2005). However, Kentucky law extends this exclusive remedy protection to contractors when an employee of a subcontractor suffers injury. Ky.Rev.Stat. Ann. § 342.690(1) (LexisNexis 2005); General Electric Co. v. Cain, 236 S.W.3d 579, 585 (Ky.2007). Some courts call this provision in the Kentucky Act "up-the-ladder" immunity. See Cain, 236 S.W.3d at 607. Illinois law offers no such protection to contractors that hire subcontractors. See Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 322, 175 N.E.2d 785 (1961).

Maria contends that Atlantic does not qualify as a "contractor" for purposes of up-the-ladder immunity under the Kentucky Act. If Atlantic is not a contractor and up-the-ladder immunity does not protect it, then Kentucky law does not differ materially from Illinois law applicable to this case. The Kentucky Act defines a contractor as "[a] person who contracts with another * * * [t]o have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person." Ky.Rev.Stat. Ann. § 342.610(2)(b) (LexisNexis 2005). The Kentucky Supreme Court explained:

"Work of a kind that is a 'regular or recurrent part of the work of the trade, business, occupation, or profession' of an owner does not mean work that is beneficial or incidental to the owner's business or that is necessary to enable the owner to continue in business, improve or expand its business, or remain or become more competitive in the market. [Citation.] It is work that is customary, usual, or normal to the particular business (including work assumed by contract or required by law) or work that the business repeats with some degree of regularity, and it is of a kind that the business or similar businesses would normally perform or be expected to perform with employees." Cain, 236 S.W.3d at 588.

Atlantic contracted with Eagle to have Eagle help with painting the bridge. Atlantic painted bridges and other public works in the course of its usual business. While the Kentucky bridge project exceeded the scope of Atlantic's prior work, it did not differ from the kind of work Atlantic did in the past. Because Atlantic hired Eagle to perform "work that is customary, usual, or normal" to Atlantic's usual business, Atlantic counts as a contractor and Eagle as a subcontractor for purposes of the Kentucky Act. While Maria could sue Atlantic for negligence under Illinois law, the Kentucky Act makes workers' compensation Maria's sole remedy against Atlantic. Ky.Rev.Stat. Ann. § 342.610(2)(b) (LexisNexis 2005). Accordingly, we find that Illinois law conflicts with Kentucky law as applied to this case.

[344 Ill.Dec. 382, 404 Ill.App.3d 652, 936 N.E.2d 1139]

Restatement (Second) of Conflict of Laws Section 184

Maria contends that the trial court should have applied Illinois substantive law to this case because Illinois has a more significant relationship with this dispute and, therefore, section 145 of the Restatement (Second) of Conflict of Laws requires application of Illinois law. However, we find that section 184 of the Restatement applies more closely to the facts of this case. See Palmer v. Freightliner, LLC, 383 Ill.App.3d 57, 63, 321 Ill.Dec. 644, 889 N.E.2d 1204 (2008) (citing section 184 of the Restatement (Second) of Conflict of Laws as applicable law). Section 184 provides:

"Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen's compensation statute of a state under which the defendant is required to provide insurance against the particular risk and under which

(a) the plaintiff has obtained an award for the injury, or

(b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred, or (2) where employment is principally located, or (3) where the employer supervised the employee's activities from a place of business in the state, or (4) whose local law governs the contract of employment." Restatement (Second) of Conflict of Laws § 184 (1971).

The Kentucky Act requires all employers of employees working in Kentucky to compensate their employees for injuries they suffer at work. Ky.Rev.Stat. Ann. §§ 342.610, 342.630, 342.640 (LexisNexis 2005). The Kentucky Act applies to out-of-state employers of employees who reside outside Kentucky. Bryant v. Jericol Mining, Inc., 758 S.W.2d 45, 46-47 (Ky.App.1988). Because Eagle employed Jaime to work on the bridge in Kentucky, Eagle qualifies as an employer subject to the Kentucky Act. See Davis v. Turner, 519 S.W.2d 820, 822 (Ky.1975).

The Kentucky Act further requires all contractors to compensate injured employees of their subcontractors if the subcontractors prove unable to pay the requisite compensation. Ky.Rev.Stat. Ann. 342.610(2) (LexisNexis 2005). Thus, the Kentucky Act required Atlantic to provide workers' compensation coverage for any of...