Townsend v. Fassbinder

Decision Date30 March 2007
Docket NumberNo. 2-06-0226.,2-06-0226.
Citation866 N.E.2d 631
PartiesSteve TOWNSEND and Kristi Townsend, Plaintiffs-Appellees, v. James FASSBINDER, Individually, and Fassbinder United Builders, Inc., Defendants-Appellants (Rainbow Painting Services, Inc., Robert Wlodarski, Individually and d/b/a Romar Insurance Service, and Romar Insurance Service, Defendants; United States Liability Insurance Company, Intervenor).
CourtUnited States Appellate Court of Illinois

David J. Kupets, Law Offices of Kupets & DeCaro, P.C., David A. Novoselsky, Leslie J. Rosen, Novoselsky Law Offices, Chicago, for Steve and Kristi Townsend.

Justice BYRNE delivered the opinion of the court:

Plaintiffs, Steve Townsend and his wife, Kristi Townsend, brought this common-law negligence and premises liability action against defendants, James Fassbinder (Jim), individually, Fassbinder United Builders, Inc. (United), Rainbow Painting Services, Inc. (Rainbow), Robert Wlodarski, individually and d/b/a Romar Insurance Service, and Romar Insurance Service, for injuries Steve sustained when he fell through an unguarded and unbarricaded hole in the floor while he was working at Jim's house, which was under construction.

Plaintiffs alleged that a workers' compensation claim was pending against United and that United had denied that Steve was its employee. They further alleged that Steve was the agent of either Rainbow or United. Jim and United (collectively, defendants) sought summary judgment. Jim denied that Steve was his employee and alleged that Steve proximately caused his own injuries by failing to protect or cover the opening, by encountering the known danger of the opening, and by knowingly entering and working in the area that he knew contained the opening. United claimed that Steve was its immediate employee, not an employee of Rainbow, that he was barred from suing United because of the exclusive remedy provision of the Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West 2000)) for receiving workers' compensation benefits, and that he was judicially estopped from denying that United was his immediate employer, because of an affidavit presented to the Industrial Commission, stating that, on the day of the accident, he was not working for Rainbow. Rainbow also sought summary judgment, asserting that it had no presence at the work site and alternatively that its alleged presence there was as Steve's employer.

The trial court denied defendants' motion for summary judgment, finding that there was a question of fact in terms of whether there was an employer-employee relationship, such that Steve's receipt of workers' compensation benefits was not a bar to plaintiffs' common-law suit, and finding that the affidavit was not a binding admission. The court noted that there could be a remedy for United for the benefits paid, "whether it be a recovery of payments from an award with a special interrogatory to the jury in terms of whether there is an employer/employee relationship."

The case proceeded to a jury trial only against defendants, the additional named defendants having previously been dismissed. Also dismissed was intervenor, United States Liability Insurance Company (USLIC), United's workers' compensation insurance carrier. Rainbow ultimately settled and was dismissed with prejudice. Following the denial of a directed verdict, the jury found defendants negligent and the court entered judgment on the verdict, awarding Steve $1,951,238, after applying a finding of 10% contributory negligence, and Kristi $250,000 for loss of consortium. The trial court denied defendants' motions for judgment notwithstanding the verdict (judgment n.o.v.) and, in the alternative, for a new trial. However, it reduced Kristi's award by $25,000 based on the 10% fault of Steve and further reduced Steve's award by $50,000 as a setoff for the amount paid by Rainbow to Steve.

Defendants appeal the judgment, contending that the trial court erred by (1) denying the motion for a directed verdict or judgment n.o.v. that the exclusive remedy provision of the Act barred Steve from bringing his common-law claim; (2) denying the motion for a directed verdict or judgment n.o.v. that Steve was judicially estopped from arguing that he was employed by Rainbow; (3) refusing to tender jury instructions for workers' compensation and primary assumption of risk; and (4) allowing the testimony of (a) Ken Yotz, plaintiffs' safety expert, that Steve worked for Rainbow; (b) John Adams, defendants' workers' compensation attorney, that Steve was not an employee of United; and (c) plaintiffs that United's workers' compensation coverage was suspended by USLIC because of Jim's misrepresentations. We affirm.


On the day of the accident, February 2, 1999, Steve was a 47-year-old painter who reported for work at Rainbow, where he had worked for the past five years, at approximately 40 hours a week. Each day he reported to the Rainbow shop, where Mike Fassbinder, Rainbow's owner, told the painters where they would be working that day. The painters would then put the Rainbow equipment in the Rainbow truck and drive to the work site. Work sites consisted of various places but were usually homes. Kristi, who previously had worked for Rainbow herself, verified that Steve had worked exclusively for Rainbow for the past five years.

As a "lead man," Steve was responsible for the equipment, for the truck, and for coordinating two to eight painters at the jobsite, depending on the size of the project. Mike entrusted Steve with a gas card to fill the Rainbow truck when the vehicle was low on gas.

On February 2, when Steve arrived at Rainbow, Mike ordered Steve and a crew of painters to go to a house under construction at 32108 Turnberry in McHenry, Illinois, belonging to Jim, Mike's brother, to paint the drywall. Mike never told Steve that he was being employed that day by Jim. Steve organized the crew, loaded the Rainbow equipment into the Rainbow truck, and drove to the site.

Jim owned United. United was the general contractor for the home at 32108 Turnberry. At trial, Jim admitted that United was not the painting contractor for the job, even though he had represented on a sworn permit application and on sworn contractor statements that United was the painting contractor.

Upon his arrival at Jim's house, Steve met with Jim and noticed an uncovered and unbarricaded hole in the floor. The opening was to be used for the stairway to the basement, which had not been installed at that time, and measured about four-by-eight feet. The hole had been barricaded previously to protect the workers at the site from the dangerous condition it created when the workers became distracted by work. Two days earlier, Jim had removed the barricade. Although Jim testified that he knew that an uncovered hole was a dangerous and hazardous condition, he did not replace the barricade or cover the hole before Steve arrived at the house.

Steve was the only painter working in the room with the hole. Steve believed that the general contractor was responsible for insuring that that type of hole was covered. Jim told Steve that he would take care of covering or barricading the hole. With that understanding, Steve went to a different area and started sweeping the walls to remove drywall dust. That is the last memory Steve had before waking up in the hospital.

Eric Fassbinder, Jim's 26-year-old son, was working for his father, doing rough framing and general labor at the house. While Eric was in the basement working on February 2, he heard a thump and went to investigate the noise. He found Steve lying on the concrete floor with blood coming out of his ears, nose, and mouth, and the back of his head. Steve had fallen approximately 15 feet through the hole, cracking his head on the concrete. Eric yelled for help. Jim called 911 and the paramedic crew transported Steve to the hospital. Steve sustained significant injuries and currently has an overall IQ of 75, an impaired ability to make decisions, and borderline mental capacity.

Jim testified that, before the day of the accident, he called Mike and asked to borrow his painters. Jim claimed that he did not file W-2 forms for the painters because they were "casual laborers" who did not earn enough money to trigger the filing requirements. Jim did not recall telling Kristi that he would take care of Steve's medical bills. However, after the accident, USLIC voluntarily paid Steve's medical bills and interim wages. Those benefits were discontinued because USLIC believed Jim had made misrepresentations on his insurance policy. Nevertheless, Jim testified at trial that the Rainbow painters were employed by United on the day of the accident.

Jim never spoke with Steve at any time prior to February 2. When Steve arrived at the house, Jim never told him that he would be working for United that day. Jim did not supply Steve or any of the other Rainbow painters with equipment or directions on how to perform the job.

When Mike called Kristi to inform her of Steve's accident, he told her that Jim was going to pay the medical bills, a fact that Jim verified when Kristi saw him at the hospital that morning. Jim never told Kristi or gave her the impression that Steve was his employee that day. When the hospital talked to Kristi about who was going to pay Steve's bills, she said that Steve was working for Rainbow, but that United would be paying the bills, because that is what Jim told her to say. The hospital records admitted into evidence disclose that the hospital was told that Steve's employer was Rainbow and that the medical bills were guaranteed by United.

Steve was not a W-2 employee of United and was not paid by United for any work he performed on February 2. In the "Dome" books kept by United in the regular course of business, there is no showing that any of the...

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