Xiao Ling Peng v. Nardi

• Decision Date: 14 December 2017
• Docket Number: No. 1–17–0155,1–17–0155
• Citation: 444 Ill.Dec. 8,163 N.E.3d 133,2017 IL App (1st) 170155
• Parties: XIAO LING PENG, Plaintiff–Appellant, v. Mark NARDI, Mohammed Kouk, and Lei Guan, Defendants (Lei Guan, Defendant–Appellee).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 170155

163 N.E.3d 133

444 Ill.Dec. 8

XIAO LING PENG, Plaintiff–Appellant,

v. Mark NARDI, Mohammed Kouk, and Lei Guan, Defendants(Lei Guan, Defendant–Appellee).

No. 1–17–0155

Appellate Court of Illinois, First District, FOURTH DIVISION.

December 14, 2017

Jonathan Lustig, of Chicago, for appellant.

Terrence F. Guolee and Daniel T. Rupkey, of Querrey & Harrow, Ltd., of Chicago, for appellee.

JUSTICE McBRIDE delivered the judgment of the court, with opinion

OPINION

¶ 1 Xiao Ling Peng, a restaurant worker, filed a negligence suit against her coworker, Lei Guan, and two other drivers, seeking damages for injuries she sustained in a three-car collision that occurred while Guan was driving restaurant employees to work in a van their employer provided for their commute. The trial court initially denied Guan's motion to dismiss, but later granted his motion to reconsider and then dismissed Peng's action as to Guan with prejudice and authorized her to take an interlocutory appeal. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Peng's allegations against the other two drivers are pending in the trial court. Peng contends the court erred in finding that a civil suit against her tortious coworker is barred by the exclusivity provision of the Illinois Workers' Compensation Act (820 ILCS 305(a) (West 2014)) (Act) because the commute was not part of her employment and she did not affirmatively elect the de minimus reimbursement for some medical expenses which her employer voluntarily paid directly to one of her medical care providers. Guan responds that Peng misapprehends authority indicating her injury is work-related and exclusively compensable under the Act because the employer controlled Peng's transportation, and he also contends Peng is estopped from contradicting her worker's compensation claim. Peng replies that she filed for worker's compensation recently, in 2016, just before the statute of limitations ran, solely to protect her rights, but that her intention is to be compensated through the litigation she initiated in 2014, as evidenced by this appeal.

¶ 2 In 2014, Peng and Guan were co-employees of a Chinese and Japanese buffet restaurant owned and operated by Royal Illinois, LLC. Peng worked in the "back of the house," preparing food for the dim sum station and keeping the station tidy. Guan was a waiter. The restaurant was located in Hoffman Estates, Illinois, which is a community northwest of Chicago; and Peng, Guan, and a number of other Royal Buffet employees resided on the south side of Chicago, in the Bridgeview and Chinatown neighborhoods. The employer gave Guan the keys to a 15–seat 2010 Ford E350 passenger van to transport himself and other employees to and from the restaurant, paid him $600 a month for his driving duties, and covered the cost of fuel. The employer prohibited Guan from allowing anyone else to drive the van. The employer also prohibited Guan from making personal use of the vehicle and instructed him to leave the van parked when he was not transporting restaurant employees. The vehicle would be filled to capacity on weekends, but less full during the week. The employer would initially tell Guan where to pick up new employees, because he would not recognize them, but after that, Guan chose the pick-up and drop-off points, and he typically made three stops in Bridgeview and Chinatown. Guan also chose the specific route to take to and from work, based on prevailing traffic conditions.

¶ 3 The accident that caused injury to Peng occurred on Friday, June 20, 2014, at 10:20 a.m. when Guan was driving in Chicago on northbound I–90, in the far left lane, at or near its intersection with Harlem Avenue. (Three different accident dates appear in the record on appeal, and we have used the date written on the Illinois Traffic Crash Report.) Peng was asleep while seated in the third row of the van's four rows of seats. Despite "urgently braking," Guan struck the back of a 2008 Acura K1 being driven by Mohammed A. Kouk, who in turn struck the back of a Nissan van being driven by Mark A. Nardi. Guan's passengers suffered mostly minor injuries, with the worst appearing to be a deep facial cut. At the emergency room, Peng was diagnosed with "a muscle and tendon" injury

in her left hip and discharged with a walker and painkillers. When the hip pain continued to be unbearable more than a month later, Peng went to the hospital and was diagnosed with a pelvic fracture. When she was deposed in August 2015, Peng said the medical treatment she received had only partially alleviated the pain.

¶ 4 An employee injured on the job normally cannot sue her Illinois employer or coemployee, provided the employee is entitled to receive worker's compensation benefits from the employer or its insurer. Ramsey v. Morrison , 175 Ill. 2d 218, 224, 222 Ill.Dec. 100, 676 N.E.2d 1304, 1307 (1997) ; Illinois Insurance Guaranty Fund v. Virginia Surety Co. , 2012 IL App (1st) 113758, ¶ 16, 365 Ill.Dec. 899, 979 N.E.2d 503. See 820 ILCS 305/5(a), 11 (West 2014). The Act is a comprehensive statute that compels an employer to pay for job-related injuries without being able to resort to the various defenses it could plead in a tort suit. Illinois Insurance Guaranty Fund , 2012 IL App (1st) 113758, ¶ 16, 365 Ill.Dec. 899, 979 N.E.2d 503. However, in return for disbursing prompt and no-fault compensation, the maximum amount the employer must pay is capped. Illinois Insurance Guaranty Fund , 2012 IL App (1st) 113758, ¶ 16, 365 Ill.Dec. 899, 979 N.E.2d 503. Thus, when an accident occurs, an employee is financially protected and the employer avoids the prospect of litigation and a potentially larger judgment in a common law action. Meerbrey v. Marshall Field & Co., Inc. , 139 Ill. 2d 455, 462, 151 Ill.Dec. 560, 564 N.E.2d 1222, 1225 (1990) ; Fregeau v. Gillespie , 96 Ill. 2d 479, 486, 71 Ill.Dec. 716, 451 N.E.2d 870, 873 (1983) (indicating the workers' compensation system "was designed to provide speedy recovery without proof of fault for accidental injuries"); 820 ILCS 305/11 (West 2014) (workers' compensation "shall be the measure of the responsibility of any employer").

¶ 5 A coemployee acting in the course of his employment who accidentally injures an employee is immune from a common law negligence action, in furtherance of the Act's underlying policy that the costs of industrial accidents be placed on the industry.

Ramsey , 175 Ill. 2d at 227, 222 Ill.Dec. 100, 676 N.E.2d at 1308 (citing Rylander v. Chicago Short Line Ry. Co. , 17 Ill. 2d 618, 628, 161 N.E.2d 812, 818 (1959) ). The purpose of the Act would be blunted if the costs of job-related injuries were shifted from one employee to another employee. Rylander , 17 Ill. 2d at 628, 161 N.E.2d at 818. The Illinois supreme court reasoned:

" ‘[If coemployee immunity were not recognized] an employee who has inadvertently injured a fellow worker would be forced to bear the sole cost of defending and satisfying the common-law action without any part of the cost being passed on to the industry, since the common employer's liability is expressly limited to the compensation award. [Citation.] In view of the fact that a considerable portion of industrial injuries can be traced to the negligence of a coworker, such litigation could reach staggering proportions, and would not only tend to encourage corrupt and fraudulent practices but would also disrupt the harmonious relations which exist between coworkers. The avoidance of such results is most certainly beneficial to the employee.’ " [Citations.] Ramsey , 175 Ill. 2d at 227–28, 222 Ill.Dec. 100, 676 N.E.2d at 1309.

¶ 6 Also:

" ‘The principle behind this legislation was that the business enterprise or industry should directly bear the costs of injury to its employees in the same manner as the enterprise has always borne the costs of maintaining and repairing its plant, machinery and equipment.

* * *

If [the Act] were construed to withhold immunity to a coemployee from a negligence action, the cost of injury to an employee of the business would be shifted from the employer, where the Act places it, to a fellow employee, where the Act does not place it. * * * We cannot believe the legislature intended to permit the ultimate costs of employee injury to be borne by fellow employees, whether negligent or not.’ " Ramsey , 175 Ill. 2d at 228–29, 222 Ill.Dec. 100, 676 N.E.2d at 1309 (quoting Madison v. Pierce , 156 Mont. 209, 478 P.2d 860, 863–64 (1970) ).

¶ 7 "So far as persons within the industry are concerned, the * * * Act eliminated fault as a basis of liability." Rylander , 17 Ill. 2d at 628, 161 N.E.2d at 818.

¶ 8 Section 5(a) of the Act, which is known as the exclusivity provision, expressly bars common law actions for injuries that come within the scope of the Act, by stating "No common law or statutory right to recover damages from the employer * * * or the agents or employees of * * * [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." (Emphases added.) 820 ILCS 305/5(a) (West 2014). An employee can escape the exclusivity provision and proceed with civil litigation against an employer and/or coemployee only if the employee can allege and prove the injury (1) did not arise from his or her employment; (2) was not received during the course of employment; (3) was not accidental, such as an intentionally inflicted injury; or (4) was not compensable under the Act, such as being discharged in retaliation for filing a claim for worker's compensation. Meerbrey , 139 Ill. 2d at 463, 151 Ill.Dec. 560, 564 N.E.2d at 1226 ; Fredericks v. Liberty Mutual Insurance Co. , 255 Ill. App. 3d 1029, 1031, 194 Ill.Dec. 445, 627 N.E.2d 782, 785(1994) (the broad immunity granted by the exclusive remedy section of the workers' compensation statute may be overcome in actions...