Peng v. Nardi , 2017 IL App (1st) 170155 ( 2018 )

2017 IL App (1st) 170155
FOURTH DIVISION
December 14, 2017
No. 1-17-0155
XIAO LING PENG, )
) Appeal from
Plaintiff-Appellant, ) the Circuit Court
) of Cook County
v. )
) 14-L-11447
MARK NARDI, MOHAMMED KOUK, and LEI GUAN, )
) Honorable
Defendants ) John P. Callahan, Jr.,
) Judge Presiding
(LEI GUAN, Defendant-Appellee). )
JUSTICE McBRIDE delivered the judgment of the court, with opinion
Justices Gordon and Ellis concurred in the judgment and 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
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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.
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¶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, 676 N.E.2d 1304, 1307
(1997); Illinois Insurance Guaranty Fund v. Virginia Surety Co., 2012 IL App (1st) 113758, ¶
16, 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, 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, 979 N.E.2d 503. Thus, when an accident
occurs, an employee is financially protected and the employer avoids the prospect of litigation
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and a potentially larger judgment in a common law action. Meerbrey v. Marshall Field & Co.,
Inc., 139 Ill. 2d 455, 462, 564 N.E.2d 1222, 1225 (1990); Fregeau v. Gillespie, 96 Ill. 2d 479,
486, 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, 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, 676 N.E.2d at 1309.
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¶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, 676 N.E.2d at 1309 (quoting Madison v. Pierce, 478 P.2d 860, 863-64 (Mont.
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;
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(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, 564 N.E.2d at 1226; Fredericks v. Liberty Mutual
Insurance Co., 255 Ill. App. 3d 1029, 1031, 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 involving intentional torts by the employer or claims for retaliatory discharge for filing
a compensation claim).
¶9 As a general rule, an accident occurring while an employee is traveling to or from work is
not considered to have arisen out of or occurred in the course of employment, for purposes of the
exclusive remedy provision of the Act. Hall v. DeFalco, 178 Ill. App. 3d 408, 413, 533 N.E.2d
448, 452 (1988) (citing Hindle v. Dillbeck, 68 Ill. 2d 309, 318, 370 N.E.2d 165, 169 (1977),
Stevenson Old Sales & Service v. Industrial Comm’n, 140 Ill. App. 3d 703, 705, 489 N.E.2d 328,
330 (1986), Sloma v. Pfluger, 125 Ill. App. 2d 347, 356, 261 N.E.2d 323, 327 (1970), and
Sjostrom v. Sproule, 49 Ill. App. 2d 451, 460, 200 N.E.2d 19, 24 (1964), aff’d 33 Ill. 2d 40, 210
N.E.2d 209 (1965)).
¶ 10 An exception to this rule exists, however, when the employer provides a means of
transportation to or from work or affirmatively supplies an employee with something in
connection with going to or coming from work. Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at 452
(citing Hindle, 68 Ill. 2d at 320, 370 N.E.2d at 169, and Sjostrom, 49 Ill. App. 2d at 460-61, 200
N.E.2d at 24). Employers are sometimes motivated to provide transportation for employees to
and from the workplace, i.e., vanpools, in order to recruit and retain employees or when parking
space at the job site is limited. Thayer v. State, 653 N.W.2d 595, 599 (Iowa 2002). Larson’s
treatise indicates the basis for imposing liability on the employer through the workers’
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compensation system is that the employer has controlled the conditions of transportation. 2 Lex
K. Larson & Thomas A. Robinson, Workers’ Compensation Law § 15.01, at 15-2 (2017) (“If the
trip to and from work is made in a truck, bus, car, or other vehicle under the control of the
employer, an injury during that trip is incurred in the course of employment.”) When the
employer takes control of an employee’s transportation, the employer “has extended the risks of
employment and therefore has extended the course of employment.” Torres v. Industrial
Comm’n, 137 Ariz. 318, 321, 670 P.2d 423, 426 (Ariz. Ct. App. 1983), Smithey v. Hansberger,
189 Ariz. 103, 104, 938 P.2d 498, 499 (Ariz. Ct. App. 1996) (nuclear power plant employee was
acting within scope of his employment while driving an employer-provided vanpool and
involved in a rollover accident, so only remedy available to his injured coworkers was workers’
compensation). “By providing a vehicle for traveling to and from work, the employer ‘ “has, in a
sense, sent the employee home on a small ambulatory portion of the premises.” ’ ” J.D. Dutton,
Inc. v. Industrial Comm’n, 584 P.2d 1190, 1192 (Ariz. Ct. App. 1978) (quoting 1 Arthur Larson,
The Law of Workmen’s Compensation § 17.10 at 4-129 (1978)); Johnson v. Farmer, 537
N.W.2d, 770, 772 (Iowa 1995) (“when an injury occurs while a worker is being transported to an
intended place of employment in a vehicle owned by the employer, the latter’s control over that
situation makes the vehicle an extension of the work place”) (citing 1 Arthur Larson, Larson’s
Workmens’ Compensation Law § 17.00, at 4-209 (1995)).
¶ 11 Illinois law provides numerous examples of this scenario, a few of which are helpful
here. In Hall, an accident occurred after an employee finished his shift at a McDonald’s
restaurant in Winnetka, Illinois, and the restaurant manager was driving him to the local CTA
train station. Hall, 178 Ill. App. 3d at 410, 533 N.E.2d at 450. As the truck approached the CTA
stop, it veered off the road and crashed into a building, causing them injuries. Hall, 178 Ill. App.
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3d at 409, 533 N.E.2d at 449. Although the manager was not driving a company vehicle, and the
employee perceived the ride as a personal courtesy rather than a job perk, one of the manager’s
daily work duties was to transport employees, and he did so in furtherance of McDonald’s
interests. Hall, 178 Ill. App. 3d at 410, 533 N.E.2d at 450. Thus, when the worker attempted to
sue, the courts determined the employee’s injury arose out of or in the scope of employment and
was compensable under the Act, rather than through tort litigation against the manager. Hall, 178
Ill. App. 3d at 414, 533 N.E.2d at 452.
¶ 12 Section 5(a) of the Act also barred negligence actions in Hindle regarding the death of
one crew member and serious injuries to another that occurred when their crew leader was using
her father’s pick-up truck as part of her regular duties to supervise and transport her teenaged
crew to and from the northern Illinois corn fields where they detasseled corn. Hindle, 68 Ill. 2d
309, 370 N.E.2d 165. When the crew leader applied the truck’s brakes on a gravel road, the
vehicle swerved, skidded, left the road, and struck a utility pole. Hindle, 68 Ill. 2d at 313-14, 370
N.E.2d at 166. The passengers were in the back of the pickup, which had been outfitted for them
with two lawn chairs and an old truck seat. Hindle, 68 Ill. 2d at 312, 370 N.E.2d at 166. The
crew leader was required to provide her crew’s transportation and received additional pay for the
transportation duties. Hindle, 68 Ill. 2d 309, 370 N.E.2d 165. The court indicated it was
irrelevant whether the crew members were paid for their time while being transported to or from
the corn fields (Hindle, 68 Ill. 2d at 320, 370 N.E.2d at 169), making this case similar to Hall, in
which the McDonald’s employee had clocked out before departing for the train station. Hall, 178
Ill. App. 3d at 410, 533 N.E.2d at 450. The employer controlled the conveyance and had
expanded the risks of employment. Hindle, 68 Ill. 2d at 320, 370 N.E.2d at 170. Common law
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negligence actions against the employer, the crew leader, and the truck owner were all barred by
section 5(a). 820 ILCS 305/5(a) (West 2014); Hindle, 68 Ill. 2d at 313, 370 N.E.2d at 166.
¶ 13 Another illustration of the employer-conveyance or employer-control principle is found
in Sjostrom, in which a civil engineer and a mechanical engineer employed in the Stockyards
neighborhood of Chicago were temporarily assigned to supervise construction of a new plant that
was south, near Kankakee, Illinois, and were reimbursed for travel expenses. Sjostrom, 49 Ill.
App. 2d at 453, 200 N.E.2d at 21. Their employer instructed them to commute together in either
a company car or personal car in order to avoid reimbursing a duplicate travel expense. Sjostrom,
49 Ill. App. 2d at 455, 200 N.E.2d at 22. During one such joint commute using the mechanical
engineer’s car, their vehicle collided with another, and they were both seriously injured.
Sjostrom, 49 Ill. App. 2d at 457, 200 N.E.2d at 23. The passenger sued his coworker; however,
the court found the passenger’s injuries arose out of and in the course of his employment and that
his common law action was barred by the Act. Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at
24. The passenger would not have been exposed to the “hazards of the road” but for his
employment and his employer’s provision for transportation to the job site. Sjostrom, 49 Ill. App.
2d at 460, 200 N.E.2d at 24. The court noted that employer-provided conveyance is a “well
recognized exception to the rule that travel to and from work is ordinarily not within the [Act].”
Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at 24. “ ‘This [well recognized] exception to the
general rule has been held to be as well established as the rule itself, and to be supported by
overwhelming authority ***.’ ” Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at 24 (quoting 99
C.J.S. Workmen’s Compensation § 235, at 837). On further appeal, the supreme court affirmed
and emphasized the distinction between employee trips that are based on personal decisions (not
compensable through workers’ compensation) and travel in which the employer has controlled
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the method of travel (exclusively compensable through workers’ compensation). Sjostrom, 33 Ill.
2d at 43, 210 N.E.2d at 211.
¶ 14 With these concepts in mind, we consider the allegations that were made in this case and
the rulings which led to this appeal.
¶ 15 Peng initially sued only the two other drivers in 2014, but filed amended pleadings to
include her employer and coworker. In her second amended complaint, Peng alleged that Guan
was operating the van within the scope of his employment and that this rendered their employer,
Royal Illinois, vicariously liable for Guan’s negligent driving. According to the authority we
discussed above, if Guan was acting within the scope of his employment when his negligence
injured Peng, she would have no remedy against him other than worker’s compensation benefits.
Royal Illinois and Guan sought dismissal on grounds that the workers’ compensation system was
the exclusive source of an employee’s relief against an employer and coemployee for a work-
related injury. The dismissal motion was supported by an affidavit from the assistant manager of
Royal Illinois, Linda Chen, who swore that Guan was driving the van for a work-related purpose
and acting within the scope of his employment when the accident occurred. Chen also swore that
the company had workers’ compensation insurance coverage in effect from Travelers Insurance.
The trial court dismissed the second amended complaint without prejudice and granted Peng
leave to amend.
¶ 16 In her third amended complaint, which is the version at issue on appeal, Peng omitted any
mention of Royal Illinois, sued the three drivers, and alleged only that she was a passenger in a
van that Guan was driving when he negligently caused the multi-vehicle accident with Nardi and
Kouk. Guan repeated his earlier arguments for dismissal. Peng, countered, however, that the
third amended complaint should survive because she and Guan worked together in the restaurant,
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but he had a separate job as a van driver; and Peng’s commute with Guan was not required by
her employer, was not compensated time, and was not work-related. The trial court apparently
found this argument persuasive. We cannot summarize the court’s reasoning because there is no
transcript of the hearing and the written order denying Guan’s motion to dismiss contains no
findings or basis for the denial. According to Peng, the trial court concluded that she was not in
the course of her employment at the time of the accident. The court scheduled discovery and
other deadlines in preparation for trial.
¶ 17 Less than a month later, Guan filed a motion to reconsider the denial of his motion to
dismiss, again arguing that the workers’ compensation system was the exclusive source of an
employee’s relief against her coworker for a work-related injury. Guan argued that it was
indisputable that Peng was an employee acting within the scope of her employment, and he
relied in part on “newly discovered” evidence that Peng had filed a worker’s compensation claim
which had been accepted by Royal Illinois and its insurer, Travelers Insurance. Guan tendered
correspondence from Travelers Insurance, confirming that Peng filed a worker’s compensation
claim and that the insurer opened a claim file, determined Peng’s injuries were compensable, and
paid some of her medical bills. Guan said it appeared Peng’s worker’s compensation claim had
been closed only because she failed to submit her additional medical bills, but that her lack of
diligence in complying with a requirement under the Act did not entitle her to maintain a tort
claim against her employer or co-employee. One of Guan’s other new exhibits was a screenshot
from a webpage maintained by the Illinois Workers’ Compensation Commission, which
indicated that Ming Cheng, whose name appeared on the Illinois accident report as one of
Guan’s passengers, had also filed a worker’s compensation claim and that Travelers Insurance
had settled the claim, thus conceding that Guan’s accident was work-related. Guan also attached
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previous exhibits (not “newly discovered”), including Peng’s interrogatory answer
acknowledging she “filed a [worker’s compensation] claim for and/or receive[d] *** worker’s
compensation benefits;” the accident report bearing Cheng’s name; and the Chen affidavit
indicating Guan and Peng were coworkers and that Travelers Insurance was the employer’s
workers’ compensation carrier.
¶ 18 The trial court did not immediately rule on the motion for reconsideration and instead
entered and continued it for approximately three weeks “for Plaintiff to show work comp case
dismissed.” According to Peng, this abbreviated statement indicates the trial court took the
unusual step of ordering Peng to dismiss her worker’s compensation action so as to proceed only
on her civil complaint. As discussed below, the record is ambiguous, at best, as to Peng’s
contention. The record shows that a few weeks later, the trial court was informed that Peng had
not dismissed her workers compensation claim and the parties presented arguments on the
motion to reconsider. At the conclusion of the hearing, the trial court granted Guan’s motions to
reconsider and dismiss.
¶ 19 On appeal, Peng first addresses the trial court’s decision to grant Guan’s motion for
reconsideration, then responds to the trial court’s ruling on the motion to dismiss, and then
concludes her appellate brief by arguing that it was an abuse of discretion for the trial court to
order her to dismiss her compensation claim before the Workers’ Compensation Commission.
Rather than jumping back and forth through the proceedings as Peng has done, in the interests of
clarity and efficiency, we will address the three rulings in their chronological order.
¶ 20 We start with Peng’s contention that the judge declined to stay the civil suit pending the
outcome of Peng’s worker’s compensation action and instead committed reversible error and
exceeded the scope of his authority by ordering her to dismiss her compensation claim.
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¶ 21 We find that Peng’s argument lacks support in the record, as there is no indication she
requested or was denied a stay of the proceeding and the record is ambiguous as to whether the
judge ordered Peng to dismiss her compensation claim. Unless Peng asked the trial court to enter
a stay and gave the trial court legal grounds for doing so, there is no basis for us to conclude that
the judge erred in rejecting her argument. Furthermore, the order of December 16, 2016,
indicates that the judge entered and continued hearing on Guan’s motion to reconsider to January
9, 2017, “for [Peng] to show work comp case dismissed,” which is neither a clear statement of
what occurred in December or why Peng would be returning in January “to show work comp
case dismissed.” If the judge required Peng to dismiss her compensation claim, we would expect
the judge to definitively state that requirement, rather than jotting an abbreviated note at the
bottom of a “CASE MANAGEMENT” form, which is used to enter deadlines for discovery
efforts and to note the purpose of upcoming case management conferences. The transcript of the
January hearing contains no mention of a stay and is ambiguous as to whether the trial court
mandated that Peng withdraw her claim before the Workers’ Compensation Commission.
Furthermore, Peng did not follow the purported order and did not dismiss her compensation
claim.
¶ 22 Guan’s appellate attorneys, who are new to the case and did not represent Guan in the
trial court, point out the uncertainty in the record and contend that Peng waived her appellate
argument by failing to first present it in the trial court either by written motion or at least during
the hearing on Guan’s motion to reconsider.
¶ 23 Any doubts that arise from an incomplete record are resolved against the appellant—the
party who bears the burden of tendering a sufficient record to support his or her arguments. Wing
v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 9, 70 N.E.3d 244. Moreover, our
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adversarial system does not allow Peng to introduce new arguments in a court of review. Pajic v.
Old Republic Insurance Co., 394 Ill. App. 3d 1040, 1051, 917 N.E.2d 564, 574 (2009)
(arguments raised for the first time on appeal are waived). We will not presume that the judge
erroneously denied a stay or exceeded the scope of the circuit court’s jurisdiction by ordering
Peng to take certain steps in the workers’ compensation forum. Without an adequate record
preserving the claimed error, we decline to presume that the error occurred. We presume that the
trial judge knew and followed the law, unless the record affirmatively indicates otherwise, and
we presume that the judge’s orders have a sufficient factual basis. Wing, 2016 IL App (1st)
153517, ¶ 9, 70 N.E.3d 244.
¶ 24 Peng’s contentions about the motion to dismiss are the heart of this appeal. The standard
of review for rulings on motions to dismiss pursuant to section 2-619 of the Code of Civil
Procedure is de novo. 735 ILCS 5/2–619 (West 2014); Foster v. Johnson, 378 Ill. App. 3d 197,
200, 882 N.E.2d 108, 110 (2007). Section 2-619 authorizes a defendant to raise certain defects
and defenses that negate a plaintiff’s cause of action. Foster, 378 Ill. App. 3d at 200, 882 N.E.2d
at 110. A section 2-619 motion provides a means of disposing not only of issues of law but also
of easily proven issues of fact. Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.
3d 1065, 1072, 603 N.E.2d 1215, 1221 (1992). A section 2-619 motion may be supported by
affidavits; the products of discovery, such as interrogatory answers; documentary evidence not
incorporated into the pleadings as exhibits; testimonial evidence; or other evidentiary materials.
Barber-Colman, 236 Ill. App. 3d at 1068, 603 N.E.2d at 1219. Guan contended Peng was
seeking relief in the wrong forum. Peng argues the dismissal of her civil action was an error
because she has a right to sue a coemployee for an injury that occurred outside the course of her
employment. Peng contends she was commuting to work, and that she was not at her employer’s
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premises, not at her job site, not performing any duty within the scope her employment as a
restaurant worker, and not being compensated for her travel time. She also points out that her
employer did not require her to live in any specific area or use any specific means of
transportation to and from work and that she made those choices. Peng contends she is analogous
to the United Airlines flight attendant who injured her knee while a passenger, not on duty,
flying on a leisure travel pass from Denver to New York City, the day before she was to work on
a flight departing New York. United Airlines, Inc. v. Illinois Workers’ Compensation Comm’n,
2015 IL App (1st) 151693WC, 50 N.E.3d 661. In those circumstances, the flight attendant’s knee
injury did not arise out of or in the course of her employment and was not compensable through
the workers’ compensation system. United Airlines, 2015 IL App (1st) 151693WC, 50 N.E.3d
661. Peng also contends that she filed a compensation claim only after she filed this civil suit and
did so out of caution and on the eve of the statute of limitations because there was uncertainty as
to the proper venue for her recovery, as authorized by Rhodes and Wren, and that her decision to
preserve her right to worker’s compensation benefits did not negate her election of this civil suit.
Rhodes v. Industrial Comm’n, 92 Ill. 2d 467, 442 N.E.2d 509 (1982); Wren v. Reddick
Community Fire Protection District., 337 Ill. App. 3d 262, 785 N.E.2d 1052 (2002). She
contends that her employer’s unsolicited direct payment of some of her initial medical expenses
was not due to her affirmative election of worker’s compensation benefits and that the
employer’s fractional contribution toward the medical care and pay that she is owed by the
employer is insufficient to affect her legal rights. She contends Copass authorizes her to receive
worker’s compensation benefits yet also pursue a civil negligence action. Copass v. Illinois
Power Co., 211 Ill. App. 3d 205, 211, 569 N.E.2d 1211, 1215 (1991) (survivor’s acceptance of
uninitiated payments was insufficient to constitute an election of statutory benefits, so as to bar a
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wrongful death suit alleging spouse was killed by the intentionally tortious actions of employer
and coemployee).
¶ 25 We find that the facts and relevant law indicate that, regardless of Peng’s preference for
civil litigation against her allegedly negligent coworker, the workers’ compensation system is the
exclusive source of compensation from her employer and coemployee for an injury that occurred
during the course of her employment. Peng was traveling in an employer-controlled passenger
van when the van struck another vehicle on the interstate and was thus injured in a work-related
accident (Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at 452; Hindle, 68 Ill. 2d at 313, 370 N.E.2d
at 166; Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at 24), in what can be thought of as an
extension of her work site or a “a small ambulatory portion of the [employer’s] premises.”
(Internal quotation marks omitted.) J.D. Dutton, 584 P.2d at 1192. Peng was not compensated for
her commute time or required to use the restaurant vanpool to get to and from the restaurant, and
thus was not “on the job” in the traditional sense of that phrase, but she relinquished control over
the conditions of transportation when she climbed into a vehicle owned by her employer and
driven by her coemployee under the employer’s direction. Johnson, 537 N.W.2d at 772. Peng’s
employer controlled the conditions and risks of transportation and thus exposed itself to liability
for its employees’ injuries during their commute. Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at
452; 2 A. Larson, Workers’ Compensation Law § 15.01 (2014).
¶ 26 Peng is like the suburban McDonald’s shift worker in Hall, the corn detasselers in
Hindle, and the civil engineer in Sjostrom. Hall, 178 Ill. App. 3d 408, 533 N.E.2d 448; Hindle,
68 Ill. 2d 309, 370 N.E.2d 165; Sjostrom, 49 Ill. App. 2d 451, 200 N.E.2d 19. In each of these
examples, accidents occurred in an employer-controlled vehicle, either before the employee
arrived at or left the job site for the day. The McDonald’s employee in Hall finished his shift
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before he accepted a ride to the local train station, the corn detasselers in Hindle were never paid
for their time returning to town in the back of a pick-up truck, and the Chicago-based engineer in
Sjostrom was en route from home to work in another town where he would be supervising the
construction of a new plant. Hall, 178 Ill. App. 3d 408, 533 N.E.2d 448; Hindle, 68 Ill. 2d 309,
370 N.E.2d 165; Sjostrom, 49 Ill. App. 2d at 453, 200 N.E.2d at 21. In Hall, the McDonald’s
restaurant manager was performing one of his job duties when he transported restaurant
employees to the local train station; in Hindle, the crew leader was required by the employer to
supervise and transport her team members from the cornfields to town; and in Sjostrom, a
mechanical engineer and civil engineer were instructed to commute together so the employer
could avoid duplicate travel expenses. Hall, 178 Ill. App. 3d 408, 533 N.E.2d 448; Hindle, 68 Ill.
2d 309, 370 N.E.2d 165; Sjostrom, 49 Ill. App. 2d at 454, 200 N.E.2d at 21. Peng is no different
from these employees whose sole source of compensation from their employer and coemployee
was through the workers’ compensation system, rather than tort litigation. Hall, 178 Ill. App. 3d
at 414, 533 N.E.2d at 452; Hindle, 68 Ill. 2d at 313, 370 N.E.2d at 166; Sjostrom, 49 Ill. App. 2d
at 464, 200 N.E.2d at 26. See also Ramsey, 175 Ill. 2d at 224, 676 N.E.2d at 1307 (where it was
undisputed that coworkers were acting within the scope of their employment when the vehicle
one of them was driving collided with another vehicle, but the question was whether the other
driver/third party could recover contribution from a driver who was immunized by the Act’s
exclusivity provision). Furthermore, Peng’s situation is not analogous to the United Airlines
flight attendant whose employer was in the transportation business and whose commute on the
day she was injured was independent of her employment relationship with the airline. United
Airlines, 2015 IL App (1st) 151693WC, 50 N.E.3d 661. Royal Illinois was in the restaurant
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business and its vanpool was for its employees to get to and from work and was not open to the
general public.
¶ 27 Peng focuses on irrelevant facts when she points out that her employer did not require her
to live in the Chinatown or Bridgeview neighborhoods and she could chose any means she
wanted to commute to work from Chicago to Hoffman Estates. It makes no difference that Peng
was not at her job site, not performing any restaurant tasks, and not being compensated for her
time when she was being chauffeured to the restaurant by her coemployee in an employer-
controlled van. The authority discussed above indicates that none of these details affects Peng’s
right to compensation through the workers’ compensation system. The case law and treatise
indicate the dispositive facts for purposes of compensation are that the vehicle was an employer-
controlled conveyance for employee travel. It is undisputed that Royal Illinois provided the van
and driver and thus had control over the conditions of Peng’s commute. Therefore, Royal Illinois
is liable for Peng’s job-related injury through the workers’ compensation system and not a civil
suit. It follows that Guan is also immune from Peng’s common law negligence claim because he
was acting within the scope of his employment when his alleged negligence caused the collision
which injured Peng. Ramsey, 175 Ill. 2d at 227, 676 N.E.2d at 1308.
¶ 28 We also reject the suggestion that Peng is free to choose between the workers’
compensation system and the courts and has chosen to litigate. The Act provides that when an
employee’s injury is compensable through the Act, no common law or statutory right to
compensation is available. 820 ILCS 305/5(a) (West 2014). The injury need only be
compensable, and there is no statutory language indicating the employee must actually claim,
elect, or receive worker’s compensation in order to trigger the exclusivity provision. Even if
Peng never filed a compensation claim, according to the plain language of the Act, the Act
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applies to her injury, and section 5(a) precludes the current civil action. Regardless of whether
Peng first filed her lawsuit against Guan or her worker’s compensation claim against Royal
Illinois, and regardless of whether she has accepted any amount of benefits from Royal Illinois’s
insurer Travelers Insurance, Peng’s only source of compensation from any of them for her
injuries sustained in the vanpool accident is through a worker’s compensation claim.
¶ 29 We also reject Peng’s suggestion that she may maintain a civil suit because there is some
uncertainty as to the proper venue for her recovery. Rhodes and Wren indicate that nothing
prevents a cautious employee from filing both a worker’s compensation claim and a civil tort suit
to toll the statute of limitations where grounds for recovery are uncertain. Rhodes, 92 Ill. 2d at
470, 442 N.E.2d at 511; Wren, 337 Ill. App. 3d at 266, 785 N.E.2d at 1056. Nevertheless, an
injured employee cannot recover from the employer on both claims, and once the employee has
collected compensation on the basis that his injuries are compensable under the Act, the
employee is estopped from recovering damages on the basis that his injuries are not compensable
under the Act. Rhodes, 92 Ill. 2d at 470, 442 N.E.2d at 511; Wren, 337 Ill. App. 3d at 266, 785
N.E.2d at 1056. The record indicates that there is no uncertainty about Peng’s right to
compensation through the Act, and therefore, she may no longer maintain a duplicative civil
action seeking damages from her coemployee for the same injuries. More specifically, assistant
manager Chen’s affidavit attached to Guan’s motion to dismiss Peng’s second amended
complaint (which he also tendered in opposition to Peng’s third amended complaint) indicated
Guan was driving the van within the scope of employment, and that Royal Illinois had workers’
compensation coverage in effect through Travelers Insurance. Peng did not refute the Chen
affidavit with any contrary averment. The undisputed facts were sufficient to establish that
Peng’s exclusive form of compensation was through the Act and that her civil claim against
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Guan was not sustainable and should have been dismissed with prejudice. Furthermore, there is
no uncertainty about the law. The employer-conveyance principle is a sound, well-established
one in Illinois and other jurisdictions. Additional cases which hold that an injury arose out of and
within the course of employment, where an employee was injured in an accident while
commuting in an employer-provided conveyance, include: Smithey, 938 P.2d 498; Daniels v.
Commercial Union Insurance Co., 633 S.W.2d 396 (Ark. 1982); Securex, Inc. v. Couto, 627
So. 2d 595 (Fla. Dist. Ct. App. 1993); Adams v. United States Fidelity & Guaranty Co., 186
S.E.2d 784 (Ga. Ct. App. 1971); Hansen v. Estate of Harvey, 806 P.2d 426 (Idaho 1991);
Thayer, 653 N.W.2d at 600 (the zone of protection provided by workers’ compensation “may
extend to include injuries occurring even beyond the physical parameters of the employer’s
premises”); Kindel v. Ferco Rental, Inc., 899 P.2d 1058 (Kan. 1995); Receveur Construction
Co./Realm, Inc. v. Rogers, 958 S.W.2d 18 (Ky. 1997); McBride v. R.F. Kazimour
Transportation, Inc., 583 So. 2d 1146 (La. Ct. App. 1991); Watson v. Grimm, 90 A.2d 180 (Md.
1952); Lassabe v. Simmons Drilling, Inc., 743 P.2d 568 (Mont. 1987); Schauder v. Pfeifer, 570
N.Y.S.2d 179 (App. Div. 1991); William F. Rittner Co. v. Worrkmen's Compensation Appeal
Board, 464 A.2d 675 (Pa. Commw. Ct. 1983); Medlin v. Upstate Plaster Service, 495 S.E.2d 447
(S.C. 1998); Pickrel v. Martin Beach, Inc., 124 N.W.2d 182 (S.D. 1963); Vaughan’s
Landscaping & Maintenance v. Dodson, 546 S.E.2d 437 (Va. 2001); Doering v. Wisconsin
Labor & Industrial Review Comm’n, 523 N.W.2d 142 (Wis. Ct. App. 1994). In short, Peng does
not need to maintain her civil action as a backstop to her compensation claim.
¶ 30 Peng devotes a considerable portion of her appellate brief to argument that the court
abused its discretion by granting Guan’s motion to reconsider his motion attacking Peng’s third
amended complaint. The purpose of a motion to reconsider is to bring the court’s attention to (1)
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error in the court’s previous application of the law, (2) changes in the law, or (3) newly
discovered evidence that was not available at the time of the first hearing. Kaiser v. MEPC
American Properties, Inc., 164 Ill. App. 3d 978, 987, 518 N.E.2d 424, 429-30 (1987); Gardner v.
Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248, 571 N.E.2d 1107, 1111
(1991). A motion for reconsideration is directed at the trial court’s sound discretion and the
court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Robidoux v.
Oliphant, 201 Ill. 2d 324, 347, 775 N.E.2d 987, 1000 (2002).
¶ 31 For instance, Peng argues that the reconsideration motion was based on so-called “newly
discovered” evidence, when the material was actually available to Guan when he prepared his
motion to dismiss and thus Guan unfairly used the reconsideration process to compensate for his
inadequate preparation on the motion to dismiss. Peng argues that there was no change in the law
or error in the court’s earlier ruling, and that when a motion for reconsideration relies only on
newly discovered evidence, unless there is a reasonable explanation indicating evidence was not
available at the time of the original hearing, the trial court is under no obligation to consider it.
Kaiser, 164 Ill. App. 3d at 987, 518 N.E.2d at 429-30 (trial court which had denied fee request
that was not supported by adequate records was not required to reconsider on basis of
reconstructed time records); Gardner, 213 Ill. App. 3d at 248, 571 N.E.2d at 248-49 (trial court
could properly disregard new affidavit where plaintiff did not give reasonable explanation as to
why affidavit was not submitted prior to hearing). Peng contends Guan offered no explanation
for his failure to timely present the Travelers Insurance letter and the screenshot and was unfairly
given a “second bite at the apple.” Peng contends that it was a further abuse of discretion to grant
reconsideration and dismissal on the basis of a new legal theory, the election of remedies
doctrine, instead of the course of employment doctrine that was the basis for Guan’s motion to
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dismiss. Peng contends that she “has essentially been required to hit a moving target” in this
litigation and was substantially prejudiced by the court’s arbitrary and unreasonable combination
of two distinct legal theories. Peng’s third contention regarding the motion for reconsideration is
that a statement during the hearing reveals that the court treated one of Guan’s statements as a
judicial admission on Peng’s behalf, which defies the definition of the term admission, and that
Peng made no such admission.
¶ 32 We disagree with Peng’s premise that the court’s ruling was unfair and prejudicial to her
case. We find that the initial denial of Guan’s motion to dismiss the third amended complaint
was an erroneous application of the law and that the court corrected its error by granting Guan’s
motions for reconsideration and dismissal. The previous denial was error because, as discussed
above, the workers’ compensation system has always been Peng’s exclusive remedy for her
injuries regardless of whether she affirmatively pursued this civil suit against her coworker
instead of her worker’s compensation claim. Where an injury was to an employee and arose out
of and in the course of employment, the workers’ compensation system provides the employee’s
exclusive remedy. The fact that Peng was injured in an employer-controlled conveyance, not the
fact that she received benefits, was conclusive of her rights. Assistant manger Chen’s affidavit,
which Guan tendered in opposition to an earlier version of Peng’s complaint, was unopposed by
Peng and showed that she was injured in an employer-controlled conveyance and that the
dismissal was warranted. If there was any remaining doubt about Peng and Guan’s respective
rights, it was addressed by the “newly discovered” material, which showed that Peng and another
van passenger had applied for and received compensation under the Act. However, this “new”
evidence was not dispositive. The existing record established that Peng was injured during the
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course of employment, and therefore, the motions to dismiss and reconsider should have been
granted. Peng was not treated unfairly when the trial court corrected its error.
¶ 33 We also point out that the election of remedies theory was introduced into the
proceedings by Peng, not Guan, when Peng brought in Rhodes and Wren for the proposition that
she was entitled to file both a civil action and compensation claim while she was uncertain and
“cautious” about the proper forum. Thus, when the court made statements such as, “We’re not
going to litigate in two forums,” the court was responding to Peng’s arguments, rather than
unfairly granting the motion to dismiss on the basis of new theory which caught Peng by
surprise.
¶ 34 Furthermore, we reject the premise of Peng’s argument about the court’s statement,
“There’s a pending workers’ compensation matter which they’ve admitted in the course of.” The
hearing was primarily about whether there was any question that Peng’s injury occurred during
the course of her employment. Peng argues that Guan is the “they” who made the “admission”
and that the court improperly attributed the admission to Peng, who has never conceded that her
injury was work-related. The transcript discloses, however, that “they” was a reference to the
employer and its workers’ compensation insurer, not Guan, and that their admission was that
Peng was entitled to worker’s compensation benefits. The parties’ arguments and exhibits, such
as assistant manager Chen’s affidavit and the other documentation indicating passenger Cheng’s
injuries were treated as “in the course of” employment assured the court that the employer and its
insurer were not disputing that Peng was injured during the course of her employment and would
be compensated through the workers’ compensation system rather than a civil suit.
¶ 35 We come to the conclusion that none of Peng’s arguments about the reconsideration
ruling is well-grounded or persuasive, and we affirm the granting of reconsideration.
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¶ 36 Having considered and rejected Peng’s arguments, we affirm the granting of
reconsideration and the dismissal of Peng’s action as a matter of law.
¶ 37 Affirmed.
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