Dunlap, Donald E. v. Nestle Incorported , 431 F.3d 1015 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1752
DONALD E. DUNLAP &
LINDA J. DUNLAP,
Plaintiffs-Appellants,
v.
NESTLÉ USA, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-3230—Jeanne E. Scott, Judge.
____________
ARGUED APRIL 13, 2005—DECIDED DECEMBER 12, 2005
____________
Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. On the morning of September 4,
1999, while at work at a Nestlé facility in Jacksonville,
Illinois, Donald E. Dunlap had a heart attack and a
stroke. Mr. Dunlap was left lying on Nestlé’s loading
dock for nearly eight hours before help arrived; by that
time, there was not much anyone could do. He is now
severely and permanently disabled.
Three months after the accident, Mr. Dunlap’s family
filed a workers’ compensation claim on his behalf before the
Illinois Industrial Commission. While the record available
to us is incomplete, it appears that Nestlé has argued to the
2 No. 03-1752
Industrial Commission that the Illinois Workers’ Compen-
sation Act, 820 ILCS 305/1 et seq., does not cover Mr.
Dunlap’s injuries. Curiously, nearly six years later, his
workers’ compensation claim is still pending.
Hedging against the possibility that the Industrial
Commission might deny his workers’ compensation
claim, Mr. Dunlap, joined by his wife, sued Nestlé in the
Circuit Court of Madison County, Illinois. See Rhodes v.
Indus. Comm’n, 442 N.E.2d 509, 511 (Ill. 1982) (“[T]here is
nothing to prevent a cautious employee who has a pending
workmen’s compensation claim from also filing a common
law action, if he is uncertain of his ground for recovery, so
as to toll the statute of limitations.”). In that action, filed on
August 31, 2001, the Dunlaps alleged that Nestlé violated
its duty as the owner of the premises to provide Mr. Dunlap
with reasonable medical assistance by allowing him to
languish unaided from the time of his heart attack at 8:30
a.m. until approximately 4 p.m. when help finally arrived.
After the case was removed to federal court in March
2002, Nestlé asked the district court to dismiss the
Dunlaps’ complaint. Reversing the position that it appar-
ently took before the Industrial Commission, Nestlé’s
motion to dismiss contended that since Mr. Dunlap’s
injuries occurred while he was working, his sole recourse
was through the Workers’ Compensation Act. Nestlé argued
that the only way the Dunlaps could avoid the exclusivity
provisions of the Workers’ Compensation Act, see 820 ILCS
305/5(a) and 305/11, was by showing: “(1) that the injury
was not accidental; (2) that the injury did not arise from his
. . . employment; (3) that the injury was not received during
the course of employment; or (4) that the injury was not
compensable under the Act.” Meerbrey v. Marshall Field &
Co., Inc., 564 N.E.2d 1222, 1226 (Ill. 1990). After converting
Nestlé’s motion to dismiss into a summary judgment
motion, the district court found that none of the Meerbrey
exceptions applied and entered judgment for Nestlé.
No. 03-1752 3
On appeal, the Dunlaps concede that the district court
properly rejected the first three Meerbrey exclusivity
exceptions. The heart attack and stroke were accidental. As
the Illinois Supreme Court put it in Meerbrey, “ ‘accidental’
in the Act is not a technical legal term but encompasses
anything that happens without design or an event which is
unforeseen by the person to whom it happens.” Id. (internal
quotation marks omitted). There is also no dispute that Mr.
Dunlap was a Nestlé employee and that he was at work
on the day of his heart attack and stroke. Likewise, while
the plaintiffs assert that Nestlé owed Mr. Dunlap an
independent duty of care under Illinois’s Premises Liability
Act, 740 ILCS 130/1 et seq., they do not, on appeal, contest
the district court’s finding that whatever duties Nestlé owed
Mr. Dunlap arose out of the employer-employee relation-
ship. See Handzel v. Kane- Miller Corp., 614 N.E.2d 206,
208 (Ill. App. 1993) (“If the employer and his agent owed
the decedent a duty and were negligent, other than in a way
that would amount to an intentional tort, then the exclusive
remedy for employer negligence under the Workers’ Com-
pensation Act bars the common law action.”).
The dispute on appeal concerns the fourth Meerbrey
exception, which would permit him to avoid the ex-
clusivity rule of the Act if the injury was not compensable
under its terms. Given the ongoing proceedings before the
Industrial Commission, the parties are in an awkward
position. Neither side has wanted, up until now, to take
a firm position on the question whether Mr. Dunlap has a
valid workers’ compensation claim. Nestlé’s apparent
defense before the Industrial Commission has been that Mr.
Dunlap’s injuries are not compensable under the Act; but if
that is so, then the Dunlaps should be able to proceed with
this action under the fourth Meerbrey exception. Con-
versely, if Nestlé’s contentions before this court are
correct—that is, if Mr. Dunlap’s injuries are indeed compen-
sable under the Act—Nestlé should provide the Dunlap
4 No. 03-1752
family with the required compensation. See Meerbrey, 564
N.E.2d at 1225 (“The exclusive remedy provision is part of
the quid pro quo in which the sacrifices and gains of
employees and employers are to some extent put in balance,
for, while the employer assumes a new liability without
fault, he is relieved of the prospect of large damage ver-
dicts.”) (internal quotation marks omitted). Understand-
ably, Nestlé’s Janus-like defense has frustrated the
Dunlaps. They have gone so far as to promise in their brief
that if Nestlé “was to admit liability under the Workers’
Compensation Act, plaintiffs would voluntarily dismiss this
common law tort action.”
Yet it seems to us that the Dunlaps already have what
they seek. In finding that the Workers’ Compensation
Act’s exclusivity provisions preclude their tort claim, the
district court necessarily held that Mr. Dunlap’s “alleged
injuries are [ ] compensable under the Act.” At oral argu-
ment, Nestlé argued that this finding was not a ruling on
the merits, but rather was a finding that the court did not
have jurisdiction to consider Mr. Dunlap’s workers’ compen-
sation claims. Not so. The district court’s jurisdiction arose
from the federal diversity statute, 28 U.S.C. § 1332, and
state law may not enlarge or contract federal jurisdiction.
See, e.g., Goetzke v. Ferro Corp., 280 F.3d 766, 778-79 (7th
Cir. 2002). The exclusivity provisions of Illinois’s workers’
compensation statute do not (indeed, may not) affect the
scope of the jurisdictional authority granted to the federal
courts by Congress. The district court recognized these
principles: rather than dismissing the Dunlaps’ complaint
for lack of jurisdiction under FED. R. CIV. P. 12(b)(1), it
evaluated the type of injury Mr. Dunlap suffered, the scope
of the Act, and the Act’s relation to the tort theory before it,
and it ruled (as Nestlé wished) that the tort action was
displaced by the statutory remedy.
The Dunlaps have not persuaded us to disturb the district
court’s judgment. The Illinois Supreme Court has held that
No. 03-1752 5
the Workers’ Compensation Act requires injuries to have a
causal connection to employment in order to be covered. See
Sisbro v. Indus. Comm’n, 797 N.E.2d 665 (2003). Where the
employee has a preexisting condition, “[i]f there is an
adequate basis for finding that an occupational activity
aggravated or accelerated a preexisting condition, and,
thereby, caused the disability,” the Act covers the em-
ployee’s injury. Id. at 678. Even where the claimant can be
described as a “heart attack waiting to happen,” he may be
compensated if his job or occupational activity was a
“causative factor” in hastening the actual heart attack.
Twice Over Clean, Inc. v. Indus. Comm’n, 827 N.E.2d 409,
413-14 (Ill. 2005) (awarding compensation to a heart attack
victim whose right coronary artery was 90 percent occluded
where the work activity was a “contributing cause” of his
heart attack).
Even if we were to assume for the sake of argument that
Mr. Dunlap was a “heart attack waiting to happen” and
there was no causal connection between his heart attack
and stroke and his work at Nestlé, his on-the-job accident
encompassed much more than the initial attack. Mr.
Dunlap’s workers’ compensation claim seeks coverage for
not only the heart attack and the stroke, but also for the
added damage caused by Nestlé’s failure to respond for
eight hours. By continuing to maintain that the Dunlaps do
not fall under any of the Meerbrey exceptions, Nestlé is in
essence conceding that at least some of Mr. Dunlap’s
injuries are compensable under the Act.
Thus, while we affirm the district court’s judgment, this
is not an undiluted victory for Nestlé. Our findings, and the
uncontested findings of the district court, are binding on the
Industrial Commission to the same degree that they would
be had an Illinois court made the findings. See Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001)
(holding that while the preclusive effect of a judgment
rendered by a federal court depends on national rather than
6 No. 03-1752
state law, federal common law generally requires state
courts to give a federal diversity judgment the same effect
they would accord one of their own judgments). Under
Illinois’s issue preclusion law, an issue litigated in a prior
proceeding may not be relitigated if (1) the issue decided in
the prior adjudication is identical with the one presented in
the suit in question; (2) there was a final judgment on the
merits in the prior adjudication; and (3) the party against
whom estoppel is asserted was a party or in privity with a
party to the prior adjudication. See Herzog v. Lexington
Township, 657 N.E.2d 926, 929-30 (Ill. 1995). Each of these
elements would be met if and when the Dunlaps bring the
results of the present federal action to the Industrial
Commission’s attention. Here, in agreement with the
district court, we have found that (1) Mr. Dunlap’s injuries
were accidental; (2) at least some injuries arose from his
employment; (3) Mr. Dunlap received his injuries during the
course of his employment with Nestlé; and (4) at least some
of these injuries (perhaps all) are compensable under the
Illinois Workers’ Compensation Act. Given these binding
conclusions, we doubt that the Industrial Commission will
have much to decide other than the amount
of compensation owed to Mr. Dunlap.
While we recognize that the parties never created a
detailed record in federal court and that the course of the
proceedings left Nestlé in an awkward position, this
situation easily could have been avoided. For example,
Nestlé could have agreed to stay the federal proceedings
until the Industrial Commission ruled on Mr. Dunlap’s
compensation claim, or Nestlé could have waived the
statute of limitations for the Dunlaps’ common law claims.
We learned at oral argument that the Dunlaps offered, and
Nestlé rejected, both of these solutions. At this point, we
hope that the parties return to the Industrial Commission
and conclude this case promptly. We AFFIRM the judg-
ment of the district court.
No. 03-1752 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-12-05