Toomer v. United Resin Adhesives, Inc., 83 C 4837.

• Decision Date: 12 December 1986
• Docket Number: No. 83 C 4837.,83 C 4837.
• Parties: Sandra TOOMER, Individually and as Personal Representative of the Estate of Gerald Toomer, Deceased, et al., Plaintiffs, v. UNITED RESIN ADHESIVES, INC., an Illinois corporation, et al., Defendants. UNITED RESIN ADHESIVES, INC., an Illinois corporation and United Resin Products, Inc., a New York corporation, Counter-Plaintiffs, v. MONTGOMERY TANK LINES, INC., an Illinois corporation, Counter-Defendant.
• Court: U.S. District Court — Northern District of Illinois

652 F. Supp. 219

Sandra TOOMER, Individually and as Personal Representative of the Estate of Gerald Toomer, Deceased, et al., Plaintiffs, v. UNITED RESIN ADHESIVES, INC., an Illinois corporation, et al., Defendants.

UNITED RESIN ADHESIVES, INC., an Illinois corporation and United Resin Products, Inc., a New York corporation, Counter-Plaintiffs, v. MONTGOMERY TANK LINES, INC., an Illinois corporation, Counter-Defendant.

No. 83 C 4837.

United States District Court, N.D. Illinois, E.D.

December 12, 1986.

COPYRIGHT MATERIAL OMITTED

James F. Finn, Detroit, Mich., and Charles M. Noteboom, Bedford, Tex., for plaintiffs.

Alan P. Miller, Kiesler & Berman, Chicago, Ill., for United Resin Adhesives, Inc. and United Resin Products, Inc.

William T. Weaver, Gilbert R. Hoy, Jr., Lord, Bissell & Brook, and Michael E. Dowd, Dowd & Dowd, Ltd., Chicago, Ill., for Montgomery Tank Lines, Inc.

MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Presently pending are three motions in this complex wrongful death action: (1) Motion of Sandra Toomer, individually and as personal representative of the estate of Gerald Toomer, deceased, and Susan Bedford, next friend of minor children Carl Lynn Toomer, James Todd Toomer and Kerry Gene Toomer (collectively "Plaintiffs") to vacate this court's award of summary judgment for Montgomery Tank Lines, Inc. ("Montgomery") on Count II of the complaint; (2) Montgomery's motion for summary judgment on Count III of the complaint; and (3) Montgomery's motion, as Counter-Defendant, to dismiss the counterclaim of Counter-Plaintiffs United Resin Adhesives, Inc. and United Resin Products, Inc. ("United Resin").¹

The events preceding this case are quite simple. The decedent, Gerald Toomer ("Toomer"), was a truck driver for Montgomery. On October 6, 1982, Toomer drove to Lyons, Illinois and loaded his tank with glue manufactured by United Resin. The glue was composed in part of the toxic solvent trichloroethylene ("TCE"). Toomer then delivered the glue to Purex Industries, Inc. in St. Louis, Missouri. After the delivery, Toomer attempted to wash out the residual glue in the tank by himself, was overcome by TCE fumes, and died.

Plaintiffs' three-count complaint seeks damages for wrongful death, loss of consortium and loss of support. Count I, a strict product liability count, alleges TCE was a defective product, unreasonably dangerous because it lacked a warning of its unavoidably hazardous properties. United Resin, the manufacturer, seller, supplier and distributor of TCE, is the only defendant still named in Count I.² Count I also charges United Resin with negligence in failing to adequately warn Toomer of the extreme dangers of TCE.

Count II alleges that Toomer was an employee of Montgomery, and Montgomery was grossly negligent in failing to provide Toomer with reasonably safe working conditions. Count III alleges, in the alternative, that Toomer was an independent contractor; i.e., an employee of Gerald Toomer Trucking, Inc., a corporation which contracted to provide trucking services for Montgomery. Count III charges Montgomery was ordinarily and grossly negligent in failing to provide a safe working environment for independent contractors. United Resin filed a counterclaim against Montgomery seeking contribution in the event United Resin is held liable to Plaintiffs.

Jurisdiction is based on diversity, 28 U.S.C. § 1332(a). Plaintiffs are citizens of Texas; United Resin Adhesives, Inc. is an Illinois corporation with its principal place of business in Illinois; United Resin Products, Inc. is a New York corporation with its principal place of business in New York; and Montgomery is an Illinois corporation with its principal place of business in Illinois. We have personal jurisdiction over all defendants and venue is properly laid in the Northern District of Illinois.

Discussion

I. Choice of Law

The first matter to be addressed in this diversity suit is determining what law governs.³ The first step, of course, is to examine the conflicts of law rules applied by the forum state, Illinois. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Upon examination of the Illinois conflicts of law principles, we conclude that Texas law should apply.

Illinois has adopted the "most significant relationship" approach (as stated by the Restatement (Second) of Conflict of Laws) in resolving the liability issues raised in multi-state tort actions. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Mech v. Pullman Standard, 136 Ill.App.3d 939, 92 Ill.Dec. 45, 484 N.E.2d 776 (1st Dist.1984). Generally, Illinois courts apply the local law of the place of injury unless Illinois or some other state has a more significant relationship with the occurrence and with the parties. Vickrey v. Caterpillar Tractor Co., 146 Ill.App.3d 1023, 100 Ill.Dec. 636, 497 N.E.2d 814 (4th Dist.1986). Illinois courts follow a tripartite procedure: first, isolate the issues involved; second, identify the relevant policies embraced in the conflict; third, examine the contacts and determine which jurisdiction has the superior interest in having its policy applied. Vickrey, 100 Ill.Dec. at 639, 497 N.E.2d at 817; Mitchell v. United Asbestos Corp., 100 Ill.App.3d 485, 55 Ill. Dec. 375, 426 N.E.2d 350 (5th Dist.1981).

There are three issues involved in the present case: whether a workers' compensation claimant may recover from his employer in addition to his workers' compensation award; whether Toomer was an employee or independent contractor vis-a-vis Montgomery for purposes of the Texas Workers' Compensation statute; and whether a defendant may obtain contribution or indemnity from an employer which has previously paid benefits under the Texas Workers' Compensation statute to an injured employee. These questions revolve around interpretations of the Texas Workers' Compensation statute, under which Plaintiffs have been receiving payments since November 1982. Hence, we conclude the issues involved weigh in favor of applying Texas law.

The underlying policies as determined by Illinois and Texas courts diverge at times. In Illinois, the purpose of workers' compensation is to afford employees and their dependents assured financial protection in the event of an on-the-job injury while simultaneously eliminating the enormous cost of thousands of common law actions against employers. See Ill.Rev.Stat. ch. 48, § 138.1 et seq.; Peoria County Belwood Nursing Home v. Industrial Comm'n of Illinois, 138 Ill.App.3d 880, 93 Ill.Dec. 689, 487 N.E.2d 356 (3d Dist.1985). Thus, an employer is exempt from common law actions by employees for injuries arising out of employment. See, e.g., Young v. St. Elizabeth Hospital, 131 Ill.App.3d 193, 86 Ill.Dec. 389, 475 N.E.2d 603 (1st Dist.1985); Walker v. Midwest Emery Freight Systems, 119 Ill.App.3d 640, 78 Ill.Dec. 266, 461 N.E.2d 1373 (1st Dist.1984); cf. Unger v. Continental Assur. Co., 107 Ill.2d 79, 89 Ill.Dec. 841, 481 N.E.2d 684 (1985). This exemption applies even when the employer's wrongful conduct was intentional. Fregeau v. Gillespie, 96 Ill.2d 479, 71 Ill. Dec. 716, 451 N.E.2d 870 (1983); Collier v. Wagner Castings Co., 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198 (1980). An employee simply cannot recover from an employer in both a workers' compensation proceeding and a common law action. Collier, 41 Ill.Dec. at 782, 408 N.E.2d at 204; Rhodes v. Industrial Comm'n of Illinois, 92 Ill.2d 467, 66 Ill.Dec. 83, 442 N.E.2d 509 (1982); see also Sims v. Teepak, Inc., 143 Ill.App.3d 865, 97 Ill.Dec. 914, 493 N.E.2d 721 (4th Dist.1986). But this bar applies only to employees; independent contractors are not eligible to receive workers' compensation benefits, hence are not barred from pursuing common law remedies against their contractor. Alexander v. Industrial Comm'n of Illinois, 72 Ill.2d 444, 21 Ill. Dec. 342, 381 N.E.2d 669 (1978).

In Illinois, an employer is potentially liable for contribution to a third party tortfeasor. A third party, potentially liable to an injured employee, may maintain a contribution action against that employee's employer. Doyle v. Rhodes, 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382 (1984). Indeed, if the employee has filed an action against a third party, that third party must bring his contribution claim as a third party claim in the original action. Laue v. Leifheit, 105 Ill.2d 191, 85 Ill.Dec. 340, 473 N.E.2d 939 (1984). The rationale for allowing contribution actions against employers is that Illinois treats the employer-immunity right under workers' compensation as an affirmative defense, so the employer is still "subject to liability" in tort for purposes of the Contribution Among Tortfeasors Act, Ill.Rev.Stat. ch. 70, § 301 et seq. Doyle, 77 Ill.Dec. at 763-64, 461 N.E.2d at 386-87; Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977), cert. denied 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978).

In Texas, the stated purpose of workers' compensation is the same as for Illinois — providing financial awards to injured workers without regard to fault while protecting employers from common law actions by employees for injuries suffered in the course of employment. See Paradissis v. Royal Indem. Co., 507 S.W.2d 526 (Tex.1974); Leal v. U.S. Fire Ins. Co., 682 S.W.2d 591 (Tex.App.1984). Contrary to the policy in Illinois, however, Texas allows an injured employee to obtain exemplary damages from an employer for injuries caused by the employer's gross negligence even if the employee has previously obtained a workers' compensation award. Tex. Constitution, Art. XVI § 26; Tex.Rev.Civ.Stat. Art. 8306, § 5; Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981); Ghazali v. Southland Corp., 669 S.W.2d 770 (Tex.App.1984).

Texas, like Illinois, does not allow independent contractors to recover from their principals under its workers' compensation laws. See United...