Holten v. Syncreon North America, Inc. ( 2019 )

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Appellate Court Date: 2019.08.22
09:31:35 -05'00'
Holten v. Syncreon North America, Inc., 2019 IL App (2d) 180537Appellate Court DELLACE C. HOLTEN JR., Plaintiff-Appellant, v. SYNCREON
Caption NORTH AMERICA, INC.; MARION SAPRON; ANDROID
INDUSTRIES-BELVIDERE, LLC; COBALT INDUSTRIAL REIT;
TOVAR SNOW PROFESSIONALS, INC.; and CORPORATE
EMPLOYMENT SERVICES, INC., Defendants (Android Industries-
Belvidere, LLC, Defendant-Appellee).
District & No. Second District
Docket No. 2-18-0537
Filed May 31, 2019
Decision Under Appeal from the Circuit Court of Boone County, No. 13-L-4; the Hon.
Review John H. Young, Judge, presiding.
Judgment Affirmed.
Counsel on Timothy J. Lowery, of Lowery & Associates, LLC, of Barrington, for
Appeal appellant.
Nicholas Johnson and Terrence F. Guolee, of Querrey & Harrow, Ltd.,
of Chicago, for appellee.
Panel JUSTICE HUDSON delivered the judgment of the court, with
opinion.
Justices McLaren and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Dellace C. Holten Jr., appeals from the trial court’s orders granting summary
judgment in favor of defendant, Android Industries-Belvidere, LLC (Android), and denying
plaintiff’s motion to vacate and reconsider. The trial court held that plaintiff’s personal-injury
action was barred by the exclusive-remedy provision of the Workers’ Compensation Act (Act)
(820 ILCS 305/5(a) (West 2012)) because there was no genuine issue of material fact with
respect to the existence of a borrowed-employee relationship, as set forth in section 1(a)(4) of
the Act (id. § 1(a)(4)), pursuant to which Staff on Site, Inc. (Staff on Site), a temporary staffing
agency, sent plaintiff to work at Android. Plaintiff argues on appeal that summary judgment
should have been granted in his favor on Android’s exclusive-remedy defense because it was
undisputed that Android neither paid plaintiff’s workers’ compensation insurance premiums
or benefits nor was obliged to reimburse Staff on Site for the expenses. Alternatively, plaintiff
argues that there were, at a minimum, genuine issues of material fact as to whether a borrowed-
employee relationship existed. For the reasons set forth below, we affirm.
¶2 I. BACKGROUND
¶3 The following is derived from the pleadings, depositions, and affidavits on file. Android, a
manufacturer, contracted with Staff on Site for the provision of temporary employees. As
pertinent to the issue here, the contract between Android and Staff on Site provided:
“1. Staff On Site and Client agree that Staff On Site will provide temporary
employees (‘Employees’) for Client. Client agrees that it will pay for said employees
at the rate set forth in the attached proposal which, from time to time, may be amended
by both parties in writing.
2. Client agrees that Staff On Site’s obligation to Client is limited to assigning
employees (‘Employees’) with certain skills and abilities; maintain personnel and
payroll records; calculate and pay wages; withhold and remit payroll taxes and other
government-mandated charges (including worker[s’] compensation); hire, assign,
reassign, counsel, discipline and discharge Employees and to be responsible for and
handle work-related claims and complaints. Client further agrees to notify Staff On Site
of any placement of employees working in conjunction with any Government
Contract.”
It was undisputed that Staff on Site maintained the requisite workers’ compensation insurance.
¶4 Staff on Site hired plaintiff in approximately October or November 2011 and assigned
plaintiff to Android’s industrial facility in Belvidere as a forklift operator. Plaintiff alleged that
on January 20, 2012, he sustained injuries when the forklift he was operating at Android fell
from inside a tractor-trailer as the tractor-trailer moved away from a loading dock.
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¶5 Plaintiff filed a workers’ compensation claim against Android. However, Android directed
plaintiff to file the claim against Staff on Site. Accordingly, plaintiff filed the claim against
Staff on Site and received workers’ compensation benefits.
¶6 Plaintiff then filed this lawsuit against Android and other entities (none of which is a party
to this appeal). 1 The operative complaint alleged negligence against Android. Android filed
affirmative defenses, including that, because it was a borrowing employer under section 1(a)(4)
of the Act (id.), plaintiff’s claims were barred by the exclusive-remedy provision of the Act
(id. § 5(a)). The parties filed cross-motions for summary judgment on the exclusive-remedy
defense. The evidence submitted with the motions included the deposition testimony of
plaintiff and Brian Brown (Android’s human resources manager), a verified statement from
plaintiff, an affidavit from Brown, the contract between Android and Staff on Site, and the
correspondence from Android redirecting plaintiff’s workers’ compensation claim.
¶7 At Brown’s deposition, regarding plaintiff’s assignment to Android, Brown explained that
Android had notified Staff on Site that Android “needed people with certain skill sets, and
[plaintiff] was one of the people that they referred—that they sent over.” Plaintiff was
“presented to [Android] as being a very skilled, qualified material handler, forklift driver,” and
he passed a forklift test before Android allowed him to “drive on a regular production basis.”
¶8 Brown further testified regarding plaintiff’s work at Android:
“Q. You answered the questions about how [plaintiff] got on the Android property.
You called Staff on Site or somebody called Staff on Site to send somebody over. They
sent over [plaintiff], is that correct?
A. Correct.
Q. Once [plaintiff] was here, did he report to Android’s facility every day or did he
have to go first to Staff on Site and then come check in here?
A. No, he just came from home to here.
Q. Okay. And when he left Android’s facility, did he have to go back to Staff on
Site before he returned home?
A. No.
Q. Okay. While he was on Android’s property, did Staff on Site have any insight
or any input on how he did his job on the day-to-day basis?
A. No.
Q. Okay. Were there supervisors at Android that would tell [plaintiff] what to do
on a daily basis[?]
A. Yeah.
Q. Before [plaintiff] would start his shift, would there be safety meetings or shift
meetings before his shift[?]
A. Materials always had a startup meeting.
Q. Okay. The startup meeting, was any Staff on Site personnel at those startup
meetings or were they just Android personnel and the temps that were sent over there[?]
1
Staff on Site’s workers’ compensation carrier, Work First Casualty Company, intervened as
subrogee of Staff on Site to receive reimbursement for sums paid in the workers’ compensation action
from any judgment or settlement plaintiff received in this action.
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A. Just the people who were here on assignment.
Q. Okay. As far as the control over [plaintiff’s] work, an Android supervisor would
be controlling what he did and when he did it and how often he would do that?
A. Give him directions for the day?
Q. Yeah.
A. The assignments? It would be here, yeah, people from here.”
Brown also explained that, when a temporary employee arrives, “we say okay, here’s the
equipment, here’s the hours of work, here’s what we want you to do. We provide the training
and they do the job.” Brown specified that Android owned or leased the equipment plaintiff
used.
¶9 Regarding Android’s ability to terminate a worker placed by Staff on Site, Brown testified
that Android had the right to remove the worker from its facility and tell the worker to return
to Staff on Site. Brown further testified:
“[W]e don’t fire them. We can ask the staffing agency not to have them return and—
because they’re their employees, not ours. So we can say please, you know, have—end
their assignment here, but—you know, it’s a matter of semantics. We don’t—I don’t
go out there and tell a temp that you’re fired. We just notify the staffing agency to
please not have them come back.”
Brown acknowledged that Staff on Site could still send the worker back but explained that “at
the very least the working relationship would end with the agency” and that Android might
need to call the police if “somebody just keeps showing up.” Brown surmised, “They could do
it, but, like I said, it would get old in a hurry.”
¶ 10 In his affidavit, Brown attested that plaintiff worked primarily the second shift at Android
and that plaintiff’s working hours were the same as those of other second-shift employees. In
this regard, Brown attested that Android controlled plaintiff’s starting time and ending time
and had the discretion to give plaintiff fewer or more hours. Further, according to Brown’s
affidavit, Staff on Site did not have supervisors present at Android and plaintiff took direction
from Android employees.
¶ 11 Plaintiff testified at his deposition about his placement at Android:
“Q. How [did] you become employed at Android Industries?
A. I never was employed there. I was employed for—through Staff on Site.
***
Q. Was your first and only placement by Staff on Site, Android Industries?
A. Yes.”
¶ 12 Plaintiff further testified:
“Q. Staff on Site, at some point, told you that you could work at Android, is that
correct?
A. Yes.
Q. And you agreed to go to Android to work as a forklift operator[?]
A. Yes.”
¶ 13 Regarding his duties at Android, plaintiff testified that he “started off loading and
unloading semis on the south side of the plant which would have been parts coming in and
going out to supply the line.” Plaintiff explained that his duties changed before the accident.
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He testified that, “because [he] was such a good forklift driver, they trusted [him] with the
engines and transmissions which is a little more complicated than your general forklift or your
general material handling.” Thus, “[a] day or two before the accident,” his assignment changed
to “engines and transmissions” and “they [took him] to the other side and gave [him] a day or
two of kind of breaking [him] in back there of how things go.”
¶ 14 Regarding the source of the change in his duties, plaintiff testified:
“Q. Okay. Who decided to change your work?
A. They did because—
Q. And that is going to be my question. Who is they?
A. They would be—His name is [sic] Mike and Wil.
Q. And—
A. Now, whether they got higher up. I don’t know.
Q. Okay. And Mike and Wil, were they your supervisors while you were at
Android?
A. They were who instructed me on what to do, yes.
Q. And who did Mike and Wil work for?
A. I am assuming Android.”
¶ 15 Plaintiff was questioned about his understanding as to Android’s ability to terminate him.
Initially, plaintiff testified:
“Q. So you believe you were fired by Staff on Site or by Android?
A. By Staff on Site.”
Plaintiff further testified, however, that at the time of the accident he was concerned that
Android would terminate him. According to plaintiff, on the day of the accident, a supervisor
at Android warned him that he would be terminated if he filed a workers’ compensation claim.
The following colloquy ensued:
“Q. If you didn’t work for Android, why were you concerned that Android might
fire you for making a workers’ comp claim?
A. They can compel my employer to get rid of me.
Q. And that was your understanding, that Android could compel Staff on Site to get
rid of you?
A. Yes.”
¶ 16 In plaintiff’s verified statement, he stated that prior to the accident he “was never told” that
Android had the power to dismiss him from any employment, “was never told” that Android
had the power to compel Staff on Site to dismiss him from his employment or from working
at Android, and “was never told” that he “had to start or stop working when told by Android.”
Plaintiff also stated that, prior to the accident, he “did not believe that Android had the power
to compel Staff on Site to dismiss [him] from employment at any location” and he “did not
believe [that he] was employed by Android nor that Android controlled [his] work
performance.” Moreover, “[b]y the day of the accident, [plaintiff] worked independently, with
less than a minute of instruction from Android.”
¶ 17 Plaintiff further stated that he never received an employee handbook from Android, that he
received instruction and assistance from both Android and Staff on Site employees when he
worked at Android, and that he did not know if “Staff on Site had a greater say over who
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worked at the Android facility than Android, as [he] did not know the full relationship between
them.” Plaintiff stated that Staff on Site told him to bring all employment issues, including
scheduling issues, to Staff on Site and not to Android. Plaintiff stated that, after the accident,
an Android supervisor told him that he would be terminated if he filed a workers’ compensation
claim, and he believed that Android “could compel Staff on Site to get rid of [him].” Moreover,
after the accident, Brown “told [him] that only Staff on Site could hire [him] and dismiss [him],
and that Android did not fire [him] and did not control whether [he] worked at Android.”
¶ 18 Following a hearing on the parties’ cross-motions for summary judgment, the trial court
granted summary judgment in favor of Android. The trial court found no genuine issue of
material fact with respect to Android’s right to control and direct the manner of plaintiff’s
work. In doing so, it found that Staff on Site placed plaintiff at Android to drive a forklift,
plaintiff worked the same hours as other Android employees, Android’s employees supervised
plaintiff, no Staff on Site supervisors worked at the Android facility, Android had the right to
remove plaintiff from the Android facility, and Android provided the equipment plaintiff used.
The trial court also found that “a borrowing employer need not have the power to dismiss the
employee from his general employment, just the power to dismiss from the borrowed
employment.”
¶ 19 The trial court rejected plaintiff’s argument that “there must be a payment of benefits as a
prerequisite to apply the exclusive remedy under [s]ection 5(a)” (820 ILCS 305/5(a) (West
2012)). The trial court reasoned:
“Android and Staff on Site contracted for Staff on Site to provide workers’
compensation coverage. The plaintiff has, apparently, filed a workers’ compensation
claim and has, apparently received benefits from Staff on Site, hence the interven[o]r.
Here, as provided in [section] 1(a)(4), Android as a borrowing employer not providing
or paying benefits is liable to the employee jointly and [severally]; however, the
employee doesn’t get two workers’ compensation coverages or two workers’
compensation recoveries.”
Accordingly, the trial court concluded that Android was a borrowing employer under section
1(a)(4) of the Act (id. § 1(a)(4)) and entitled to the immunity set forth in the Act’s exclusive-
remedy provision.
¶ 20 Plaintiff moved to vacate and reconsider the trial court’s grant of summary judgment in
favor of Android. Following a hearing, the trial court denied the motion, reiterating its findings
with respect to Android’s right to control and direct the manner of plaintiff’s work. The trial
court also rejected plaintiff’s “more strenuously argued” position “that Android not paying
workers’ compensation premiums is a ‘threshold’ to any immunity under [s]ection 5(a) of the
Workers’ Compensation Act.” The trial court noted that section 1(a)(4) of the Act provides
that the liability of loaning and borrowing employers is joint and several unless there is an
agreement to the contrary. There was an agreement to the contrary here—“Android and Staff
on Site contracted for Staff on Site to provide the workers’ compensation coverage and [it], in
fact did.” Thus, Android was a borrowing employer under section 1(a)(4) and entitled to
immunity under the Act’s exclusive-remedy provision.
¶ 21 Plaintiff timely appealed.
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¶ 22 II. ANALYSIS
¶ 23 Plaintiff argues that summary judgment on the exclusive-remedy defense should have been
entered in his favor because it was undisputed that Android neither paid plaintiff’s workers’
compensation premiums or benefits nor was obliged to reimburse Staff on Site for the
expenses. Alternatively, plaintiff argues that, at a minimum, there were genuine issues of
material fact as to whether a borrowed-employee relationship existed. We disagree.
¶ 24 We note as a preliminary matter that plaintiff’s statement of facts includes argument and
comment in violation of Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018). While we
may strike a statement of facts or dismiss an appeal based upon such violations, we decline to
do so here, as the violations do not hinder our review. See O’Gorman v. F.H. Paschen, S.N.
Nielsen, Inc., 2015 IL App (1st) 133472, ¶ 80. However, we disregard the noncompliant
portions of plaintiff’s statement of facts. See id.¶ 25 Summary judgment is proper when “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2012). “The purpose of summary judgment is not to try a question of fact, but rather to
determine whether a genuine issue of material fact exists.” Bagent v. Blessing Care Corp., 224
Ill. 2d 154, 162 (2007). In determining whether there is a genuine issue of material fact, the
pleadings, depositions, admissions, and affidavits must be construed strictly against the movant
and liberally in favor of the opponent. Id. A triable issue of fact exists where there is a dispute
as to a material fact or where, although the material facts are not in dispute, reasonable minds
might differ in drawing inferences from those facts. Id. at 162-63. Although summary
judgment can aid in the expeditious disposition of a lawsuit, it is a drastic measure and, thus,
should be allowed only where the movant’s right to judgment is “clear and free from doubt.”
Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). We review summary judgment rulings
de novo. Id.¶ 26 With these concepts in mind, we address whether the trial court properly entered summary
judgment in Android’s favor on the exclusive-remedy defense under the Act. The Act is
intended to provide financial protection to workers for accidental injuries arising out of and in
the course of employment. Falge v. Lindoo Installations, Inc., 2017 IL App (2d) 160242, ¶ 14
(citing Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990)). Accordingly, the Act
imposes upon the employer liability without fault but prohibits the employee from bringing a
common-law suit against the employer. Id. (citing Meerbrey, 139 Ill. 2d at 462). Section 5(a)
of the Act sets forth this exclusive remedy:
“No common law or statutory right to recover damages from 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 ***.” 820 ILCS 305/5(a) (West 2012).
The exclusive-remedy provision is part of the quid pro quo pursuant to which the employer
assumes liability without fault but is relieved of the prospect of large verdicts for damages.
Meerbrey, 139 Ill. 2d at 462.
¶ 27 The issue in this case is whether Android is entitled to immunity under the exclusive-
remedy provision as a borrowing employer under the Act. “An employee in the general
employment of one person may be loaned to another for the performance of special work and
become the employee of the person to whom he is loaned while performing the special
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service.” A.J. Johnson Paving Co. v. Industrial Comm’n, 82 Ill. 2d 341, 346-47 (1980). Our
supreme court has long recognized the applicability of the common-law borrowed-employee
doctrine to workers’ compensation cases. Id. at 347; Falge, 2017 IL App (2d) 160242, ¶ 15.
¶ 28 The Act specifically incorporates the borrowed-employee doctrine and extends the
immunity of the exclusive-remedy provision to borrowing and loaning employers. 820 ILCS
305/1(a)(4) (West 2012); Falge, 2017 IL App (2d) 160242, ¶ 14. Section 1(a)(4) provides:
“Where an employer operating under and subject to the provisions of this Act loans an
employee to another such employer and such loaned employee sustains a compensable
accidental injury in the employment of such borrowing employer and where such
borrowing employer does not provide or pay the benefits or payments due such injured
employee, such loaning employer is liable to provide or pay all benefits or payments
due such employee under this Act and as to such employee the liability of such loaning
and borrowing employers is joint and several, provided that such loaning employer is
in the absence of agreement to the contrary entitled to receive from such borrowing
employer full reimbursement for all sums paid or incurred pursuant to this paragraph
together with reasonable attorneys’ fees and expenses in any hearings before the Illinois
Workers’ Compensation Commission or in any action to secure such reimbursement.”
820 ILCS 305/1(a)(4) (West 2012).
¶ 29 Significantly, too, section 1(a)(4) further provides that “[a]n employer whose business or
enterprise or a substantial part thereof consists of hiring, procuring or furnishing employees to
or for other employers operating under and subject to the provisions of this Act for the
performance of the work of such other employers and who pays such employees their salary
or wages notwithstanding that they are doing the work of such other employers shall be deemed
a loaning employer within the meaning and provisions of this Section.” Id.¶ 30 Plaintiff contends that, as a “threshold” matter, he was entitled to summary judgment on
the exclusive-remedy defense because Android neither paid plaintiff’s workers’ compensation
insurance premiums or benefits nor was obliged to reimburse Staff on Site for the expenses.
Moreover, plaintiff contends, Android failed to establish the existence of a borrowed-employee
relationship and thus was not entitled to immunity under the Act.
¶ 31 A. Payment of or Obligation to Reimburse for Workers’
Compensation Premiums or Benefits
¶ 32 We turn first to plaintiff’s position that the payment of or obligation to reimburse for
workers’ compensation premiums or benefits should be considered a prerequisite for
exclusive-remedy protection under the Act. To hold otherwise, plaintiff contends, would be to
turn the Act’s exclusive-remedy protection into a “sword instead of a shield.” But plaintiff’s
argument fails to appreciate the framework of the borrowed-employee relationship as set forth
in section 1(a)(4).
¶ 33 The plain language of section 1(a)(4) explicitly contemplates that the loaning employer,
rather than the borrowing employer, may be the entity that provides or pays the workers’
compensation premiums or benefits. See id. Specifically, “where such borrowing employer
does not provide or pay the benefits or payments due such injured employee, such loaning
employer is liable to provide or pay all benefits or payments due such employee under this
Act.” Id. Yet the statute further specifies that the liability of the borrowing and loaning
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employers is joint and several and that the loaning employer is, “in the absence of [an]
agreement to the contrary,” entitled to reimbursement from the borrowing employer “for all
sums paid or incurred pursuant to this paragraph,” in addition to the specified attorney fees and
expenses. Id.¶ 34 Thus, “regardless of which of the two employers pays the workers[’] compensation
benefits, the exclusivity provision of the Act immunizes both the borrowing employer and the
lending employer from further claims.” Illinois Insurance Guaranty Fund v. Virginia Surety
Co., 2012 IL App (1st) 113758, ¶ 19. The legislature “did not require both a lending employer
and borrowing employer to procure identical coverage for the same employees.” Id.¶ 35 Here, the contract between Android, as the borrowing employer, and Staff on Site, as the
loaning employer, required Staff on Site to maintain workers’ compensation coverage for the
temporary employees it provided to Android. Staff on Site, as agreed, maintained workers’
compensation coverage for plaintiff. Plaintiff filed a workers’ compensation claim against
Staff on Site and received workers’ compensation benefits.
¶ 36 Plaintiff nonetheless contends that there must be a reimbursement requirement in order to
maintain exclusive-remedy protection under the Act. In other words, according to plaintiff,
Android is not entitled to exclusive-remedy protection because it was not obligated to
reimburse Staff on Site for the workers’ compensation premiums or benefits. Plaintiff insists
that nothing in the contract between Staff on Site and Android indicates that Staff on Site has
a right of reimbursement.
¶ 37 However, there was no need to incorporate a right of reimbursement into the contract. The
reimbursement right is explicitly set forth in section 1(a)(4). The statute specifies that the
liability of the borrowing and loaning employers is joint and several and that the loaning
employer is “entitled to receive from such borrowing employer full reimbursement for all sums
paid or incurred pursuant to this paragraph” in addition to the specified attorney fees and
expenses. 820 ILCS 305/1(a)(4) (West 2012). The statute also provides that there may be an
“agreement to the contrary.” Id. There was an agreement to the contrary here whereby Staff on
Site was responsible for workers’ compensation coverage. An agreement to the contrary, as
contemplated by the statute, does not eliminate a borrowing employer’s right to exclusive-
remedy protection under the Act. See Chaney v. Yetter Manufacturing Co., 315 Ill. App. 3d
823, 826-27, 830 (2000).
¶ 38 The court in Chaney rejected essentially the same argument plaintiff makes here. The
plaintiff was an employee of a temporary placement agency. Id. at 825. The agency placed the
plaintiff at Yetter Manufacturing Company (Yetter). Id. The agreement between the agency
and Yetter provided that the agency was responsible for workers’ compensation and general
liability coverage for all temporary employees and that the agency indemnified and held Yetter
harmless “from any judgment, finding, or assessment of liability under the *** Act or the laws
of Illinois” for a temporary employee’s injuries. Id. The plaintiff was injured in a work-related
accident. Id. After recovering workers’ compensation benefits from the agency, the plaintiff
filed a personal-injury suit against Yetter. Id. The trial court granted summary judgment in
Yetter’s favor on the exclusive-remedy defense under the Act by virtue of the borrowed-
employee relationship. Id. at 825-26.
¶ 39 In affirming, the appellate court rejected the plaintiff’s argument that the agreement
between the agency and Yetter, whereby the agency was responsible for workers’
compensation claims and agreed to indemnify and hold Yetter harmless from any such claims,
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eliminated the exclusive-remedy protection. Id. at 830. In analyzing section 1(a)(4), the
appellate court reasoned that
“with respect to an injured employee, the liability of the loaning and borrowing
employers is joint and several; as between employers, the borrowing employer is
primarily liable and the loaning employer [is] secondarily liable, the latter being
required to pay only when the borrowing employer fails to do so, and is then entitled
to reimbursement from the borrowing employer.” Id. at 826-27.
The loaning employer’s right to reimbursement, however, may be waived by an agreement
between the loaning and borrowing employers. Id. at 827. Accordingly, the appellate court
held, “[t]o adopt plaintiffs’ argument would require us to ignore the Act’s explicit provisions
making borrowing and loaning employers jointly and severally liable to the employee.” Id. at
830; accord Reichling v. Touchette Regional Hospital, Inc., 2015 IL App (5th) 140412, ¶ 42
(“We, therefore, reject the plaintiff’s argument that [the borrowing employer] should be subject
to common law tort liability in this case because, pursuant to its agreement with [the temporary
staffing agency], it was not liable under the Act.”).
¶ 40 Plaintiff discounts Chaney and Reichling because those decisions contain “no
reimbursement discussion.” His position is that “[e]xclusive remedy protection is predicated
upon an obligation to pay for [workers’] compensation insurance and claims, either directly or
with full reimbursement by employers, including borrowing employers.” However, none of
the cases upon which plaintiff relies involved a borrowed-employee relationship under section
1(a)(4). See Ioerger v. Halverson Construction Co., 232 Ill. 2d 196 (2008) (joint venturer);
Forsythe v. Clark USA, Inc., 224 Ill. 2d 274 (2007) (parent corporation); Burge v. Exelon
Generation Co., 2015 IL App (2d) 141090 (sole member of employer limited liability
company); Kay v. Centegra Health System, 2015 IL App (2d) 131187 (joint employer);
Schmidt v. Milburn Brothers, Inc., 296 Ill. App. 3d 260, 269 (1998) (joint employer or joint
venturer).
¶ 41 The issue in Ioerger, for instance, was whether a co-venturer was entitled to invoke the
Act’s exclusive-remedy protection. Ioerger, 232 Ill. 2d at 202-05. Midwest Foundation
Corporation (Midwest) and Halverson Construction Company, Inc. (Halverson), entered into
a joint-venture agreement in connection with a bridge-repair project; their contract provided
that profits and losses would be shared 60/40, respectively, with each making proportional,
periodic contributions. Id. at 198-99. Their contract further provided that Midwest was
responsible for workers’ compensation insurance but was entitled to reimbursement from the
joint venture for the incurred costs. Id. at 199. The plaintiffs were employed by Midwest and
suffered work-related injuries; they brought workers’ compensation claims against Midwest
and received benefits. Id. at 199-200. It was undisputed that under section 5(a) of the Act (820
ILCS 305/5(a) (West 2000)) the plaintiffs’ exclusive remedy against Midwest was the workers’
compensation claims. Ioerger, 232 Ill. 2d at 200. However, the plaintiffs also brought a
personal-injury action against Halverson and the joint venture. Id.¶ 42 In holding that Halverson and the joint venture were likewise entitled to the Act’s
exclusive-remedy protection, the supreme court reasoned that Halverson was Midwest’s agent,
as a co-venturer with Midwest. Id. at 202. The court further reasoned that the joint venture was
“inseparable from its constituent entities, Midwest and Halverson,” such that, because “[b]oth
of those entities” were “immunized by the exclusive remedy provision[ ] ***, it necessarily
follows that the [j]oint [v]enture was likewise shielded.” Id. at 203.
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¶ 43 The supreme court further explained that allowing the joint venture to invoke the exclusive-
remedy provision was “mandated by the principles underlying the Act’s remedial scheme.” Id.That is, “allowing a party who has paid nothing toward an injured employee’s workers’
compensation benefits to nevertheless invoke the Act’s immunity to escape tort liability for
the employee’s injuries would be tantamount to allowing the party ‘to have its cake and eat it
too.’ ” Id. (quoting Forsythe, 224 Ill. 2d at 298 (holding that a parent corporation was not
entitled to the Act’s exclusive-remedy protection afforded its subsidiary/employer)). “By the
same token, subjecting a party to tort liability for an employee’s injuries notwithstanding the
fact that the party has borne the costs of the injured employee’s workers’ compensation
insurance would be the same as declaring that a party who has paid for the cake may neither
keep it nor eat it.” Id. The court concluded that, “[a]s these metaphors illustrate, the immunity
afforded by the Act’s exclusive remedy provision[ ] is predicated on the simple proposition
that one who bears the burden of furnishing workers’ compensation benefits for an injured
employee should not also have to answer to that employee for civil damages in court.” Id.¶ 44 In Burge, this court cited the rationale in Ioerger and Forsythe in holding that the
defendant, Exelon Generation Company, LLC (Exelon), which was the sole member of the
employer Exelon Nuclear Security, LLC (ENS), failed to establish that it was entitled to
exclusive-remedy protection. Burge, 2015 IL App (2d) 141090, ¶¶ 10-14. The plaintiff in
Burge suffered a work-related accident at ENS; he filed and settled a workers’ compensation
claim against ENS. Id. ¶ 2. The plaintiff then filed a negligence action against Exelon. Id. ¶ 1.
Exelon moved to dismiss on the ground that the plaintiff’s exclusive remedy was under the
Act. Id. Exelon argued that, “because it had reimbursed ENS for workers’ compensation
payments, and because of its authority to manage ENS’s affairs, it was cloaked with the same
immunity as ENS.” Id. ¶ 6. The trial court agreed and granted Exelon’s motion to dismiss. Id.
¶ 1.
¶ 45 In reversing, we rejected Exelon’s argument that it was entitled to immunity as the agent
of ENS because Exelon failed to establish that ENS had any right to control Exelon. Id. ¶ 9.
We also rejected Exelon’s argument that it was entitled to immunity based upon its alleged
payment of workers’ compensation benefits because Exelon failed to prove the purported
payment by affidavit and the agreement between Exelon and ENS was silent regarding the
obligation to provide workers’ compensation benefits. Id. ¶¶ 12-17.
¶ 46 In Kay, we affirmed the grant of summary judgment in the defendant’s favor on the
exclusive-remedy defense because the evidence established that the defendant was a joint
employer of the plaintiff. Kay, 2015 IL App (2d) 131187, ¶ 22. In doing so, we noted that the
defendant paid for the plaintiff’s workers’ compensation insurance. Id. In Schmidt, the court
reversed the grant of summary judgment in the defendants’ favor on the ground that there were
genuine issues of material fact as to whether the defendants were entitled to the Act’s
exclusive-remedy protection as joint employers or joint venturers. Schmidt, 296 Ill. App. 3d at
265-70. The court pointed out that to afford the defendants immunity without any
corresponding obligation in securing and paying for workers’ compensation insurance and
benefits would turn the exclusive-remedy provision “into a sword, instead of a shield.” Id. at
269-70.
¶ 47 Plaintiff contends that these cases stand for the general principle that the Act’s exclusive-
remedy provision is predicated on the payment of or obligation to reimburse for workers’
compensation premiums or benefits. Initially, we note our recent decision in Hiatt v. Illinois
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Tool Works, 2018 IL App (2d) 170554, ¶¶ 64-67, which neither party cites, in which we held
that the defendant distributor was entitled to invoke the exclusive-remedy defense as a joint
venturer with the manufacturer employer even though the defendant did not pay for the
workers’ compensation benefits. In Hiatt, we pointed out that Burge was “predicated on the
fact that the entities were separate,” as it was established that ENS had no right to control
Exelon and was therefore not ENS’s agent. Id. ¶ 66 (citing Burge, 2015 IL App (2d) 141090,
¶ 9). In Hiatt, we also pointed out that “Kay never held that immunity under the exclusive-
remedy provision extends only to members of a joint venture that contribute to workers’
compensation. Kay did not even address that argument.” Id. ¶ 64 (citing Kay, 2015 IL App (2d)
131187, ¶¶ 22, 29). Accordingly, plaintiff’s reliance upon these cases is misplaced.
¶ 48 Regardless, as stated, none of the cases upon which plaintiff relies involved a borrowed-
employee relationship under section 1(a)(4). Indeed, the court in Schmidt explicitly recognized
the distinction: “We have attempted to steer clear of the ‘borrowed’ or ‘loaned’ employee
decisions. Those cases ordinarily deal with the employee’s contractual expectations, a matter
that is of little import in this case. *** This case *** is not about ‘loaned’ or ‘borrowed’
employees.” Schmidt, 296 Ill. App. 3d at 266-67.
¶ 49 Plaintiff persists that allowing Android to invoke immunity under the exclusive-remedy
provision of the Act would be tantamount to “allowing a party to have its cake and eat it too.”
The metaphor is inapt here. This case involves whether a borrowed-employee relationship
existed under section 1(a)(4) of the Act. There was no cake here for either employer; there was
joint and several liability. Under the plain language of section 1(a)(4), the liability of the
borrowing and loaning employers is joint and several, and the loaning employer is, “in the
absence of [an] agreement to the contrary,” entitled to reimbursement from the borrowing
employer “for all sums paid or incurred pursuant to this paragraph,” in addition to the specified
attorney fees and expenses. 820 ILCS 305/1(a)(4) (West 2012). Here, there was in fact a
specific agreement to the contrary. Plaintiff’s argument would have us ignore the plain
language of the statute. Accordingly, plaintiff presents no persuasive argument upon which to
hold that he was entitled to summary judgment on the ground that Android neither paid his
workers’ compensation insurance premiums or benefits nor was obliged to reimburse Staff on
Site for the expenses.
¶ 50 B. Borrowed-Employee Relationship
¶ 51 Plaintiff nevertheless argues that, at a minimum, there were genuine issues of material fact
as to whether a borrowed-employee relationship existed. To invoke the Act’s exclusive-
remedy provision, Android was required to establish that under section 1(a)(4) Staff on Site
was a loaning employer and Android was a borrowing employer. Plaintiff does not dispute that
Staff on Site was a loaning employer under section 1(a)(4). As discussed, section 1(a)(4)
specifically identifies a loaning employer as one
“whose business or enterprise or a substantial part thereof consists of hiring, procuring
or furnishing employees to or for other employers operating under and subject to the
provisions of this Act for the performance of the work of such other employers and
who pays such employees their salary or wages notwithstanding that they are doing the
work of such other employers.” Id.
The record establishes that, as a temporary staffing agency that contracted with Android to
provide temporary employees “with certain skills and abilities,” Staff on Site was a loaning
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employer under section 1(a)(4). See Falge, 2017 IL App (2d) 160242, ¶ 16 (“There is no
question that Labor Ready [(a temporary staffing agency)] qualifies as a loaning employer.”).
¶ 52 We must determine, however, whether there was a genuine issue of material fact with
respect to whether Android qualified as a borrowing employer under the Act. To evaluate the
existence of a borrowed-employee relationship for purposes of the exclusive-remedy
provision, we must consider (1) whether the alleged borrowing employer had the right to direct
and control the manner in which the employee performed the work and (2) whether there was
an express or implied contract of hire between the employee and the alleged borrowing
employer. A.J. Johnson Paving, 82 Ill. 2d at 348; Falge, 2017 IL App (2d) 160242, ¶ 16.
Whether a borrowed-employee relationship existed is generally a question of fact. A.J. Johnson
Paving, 82 Ill. 2d at 348; Falge, 2017 IL App (2d) 160242, ¶ 16. However, if the facts are
undisputed and permit but a single inference, the question may be resolved as a matter of law.
A.J. Johnson Paving, 82 Ill. 2d at 348-49; Falge, 2017 IL App (2d) 160242, ¶ 16.
¶ 53 1. Direction and Control of Plaintiff’s Work
¶ 54 In resolving whether a borrowed-employee relationship existed, the primary consideration
is the first element set forth above—whether the alleged borrowing employer had the right to
direct and control the manner in which the employee performed the work. A.J. Johnson Paving,
82 Ill. 2d at 348-49; Falge, 2017 IL App (2d) 160242, ¶ 17. The following factors support a
determination that the borrowing employer had the right to direct and control the manner in
which the employee performed the work: (1) the employee worked the same hours as the
borrowing employer’s employees, (2) the employee received instruction from the borrowing
employer’s foreperson and was assisted by the borrowing employer’s employees, (3) the
loaning employer’s supervisors were not present, (4) the borrowing employer was permitted
to tell the employee when to start and stop working, and (5) the loaning employer relinquished
control of its equipment to the borrowing employer. A.J. Johnson Paving, 82 Ill. 2d at 349;
Falge, 2017 IL App (2d) 160242, ¶ 17. 2
¶ 55 This court’s recent decision in Falge, holding that a borrowed-employee relationship
existed for purposes of the Act’s exclusive-remedy provision, involved facts analogous to the
instant case. There, too, the plaintiff was employed by a temporary staffing agency, Labor
Ready Midwest (Labor Ready). Falge, 2017 IL App (2d) 160242, ¶ 1. Labor Ready assigned
the plaintiff to work for the defendant, Lindoo Installations, Inc. (Lindoo). Id. The plaintiff was
injured while setting up industrial shelving at a warehouse and filed for and obtained workers’
compensation benefits from Labor Ready. Id. The plaintiff then filed a negligence lawsuit
against Lindoo. Id. The trial court granted Lindoo summary judgment on its exclusive-remedy
defense. Id. This court affirmed. Id.¶ 56 We held that the undisputed material facts demonstrated that Lindoo directed and
controlled the plaintiff’s work. Id. ¶¶ 22-24, 27. While the plaintiff testified at his deposition
2
Quoting Gundich v. Emerson-Comstock Co., 21 Ill. 2d 117, 123 (1960), a Structural Work Act
case, plaintiff contends that the test for whether a borrowing employer had the right to direct and control
the manner in which the employee performed the work should be whether the employee was “ ‘wholly
subject to [the borrowing employer’s] control and freed during such time from the direction and control
of his master.’ ” Plaintiff’s argument ignores countless decisions setting forth the relevant analysis,
including the supreme court’s decision in A.J. Johnson Paving, 82 Ill. 2d at 348-49.
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that there did not appear to be any direct supervisors from Lindoo who were actually directing
his work, he further testified that he was taking directions from Lindoo’s employees when he
was injured. Id. ¶ 22. The plaintiff testified that the directions were difficult to understand
because many of Lindoo’s employees spoke Spanish but that he understood what he was
supposed to do through the use of hand gestures and other nonverbal communication. Id. The
evidence also established that Lindoo set the plaintiff’s work schedule, controlled when he
took his breaks, and provided him with the tools to perform the tasks it assigned. Id. Moreover,
the contract between Labor Ready and Lindoo stated that all temporary employees provided to
Lindoo were under Lindoo’s supervision and direction. Id. ¶ 23.
¶ 57 Likewise, here, there were no genuine issues of material fact with respect to Android’s
direction and control of plaintiff’s work. First, regarding the hours plaintiff worked, it was
undisputed that there were two shifts at Android, that plaintiff worked primarily the second
shift, and that plaintiff’s working hours were the same as those of Android’s second-shift
employees. Plaintiff contends that “Brown cannot say how many Android workers, as opposed
to temporary workers, were on site at those times.” This fact is not material. The determinative
issue is whether plaintiff worked the same hours as Android’s employees. See id. ¶ 17. Plaintiff
cites no evidence that the hours he worked varied from those worked by Android’s employees.
¶ 58 Regarding whether plaintiff received instruction and assistance from Android supervisors
and employees, plaintiff testified that “Mike and Wil” were the supervisors “who instructed
[him] on what to do.” Plaintiff argues that his deposition testimony merely established his
“assumption” that these individuals worked for Android. But a review of the entirety of
plaintiff’s deposition testimony, as well as Brown’s deposition testimony, reflects multiple
references to these individuals as supervisors at Android. The only reasonable inference that
can be drawn from the undisputed facts is that plaintiff received instruction from Android
supervisors.
¶ 59 Plaintiff argues that, regardless, as set forth in his verified statement, “[b]y the day of the
accident, [he] worked independently, with less than a minute of instruction from Android.”
The fact that plaintiff’s skill as a forklift operator allowed him control over the operation of
the equipment is not material. See A.J. Johnson Paving, 82 Ill. 2d at 349 (the “fact that
claimant’s skill as an operator allowed him to exercise control over the paving machine and
the technical details of the paving operation was insufficient to preclude a finding that [the
defendant] had the right to control the manner of the work”). The issue is the source of
plaintiff’s instruction and assistance. Brown testified that Android employees provided
plaintiff’s assignments and that there were always “startup” meetings before shifts. There was
no evidence that anyone at Staff on Site provided instruction or assistance to plaintiff on his
duties and operation of a forklift at Android. Thus, the record demonstrates no genuine issue
of material fact with respect to plaintiff’s receipt of instruction and assistance from Android
supervisors and employees.
¶ 60 As for the third factor—the presence of any Staff on Site supervisors—plaintiff concedes
that no Staff on Site supervisors were present at Android while he worked there.
¶ 61 Regarding whether Android was permitted to tell plaintiff when to start and stop working,
in his verified statement, plaintiff asserted that he never received an employee handbook from
Android and that he “was never told [he] had to start or stop working when told by Android.”
The latter statement lacks clarity, and in any event, neither statement creates a genuine issue
of material fact. As discussed, it was undisputed that there were two shifts at Android. And
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Brown testified that, when a temporary employee arrives, “we say *** here’s the hours of
work.” Brown also attested that Android controlled plaintiff’s starting time and ending time
and had the discretion to give plaintiff fewer or more hours. Moreover, the testimony
established that plaintiff reported to Android; plaintiff was not required to report to Staff on
Site before or after a shift.
¶ 62 Finally, it was undisputed that plaintiff used Android’s equipment to perform his duties as
a forklift operator. Android alleged in its exclusive-remedy defense that “[a]t all times relevant
[p]laintiff used equipment provided by [Android].” Plaintiff admitted this allegation in his
reply to Android’s defense. Brown also specifically testified that the equipment plaintiff used
was owned or leased by Android. Accordingly, viewing the evidence in the light most
favorable to plaintiff, the record demonstrates no genuine issue of material fact with respect to
Android’s direction and control of plaintiff’s work.
¶ 63 Plaintiff nevertheless contends that summary judgment in Android’s favor was improper
because the evidence demonstrated that Android lacked the power to terminate him. Plaintiff
cites Brown’s deposition testimony that Android “can ask the staffing agency not to have [the
worker] return” but “we don’t fire them.” Plaintiff also points out that the contract between
Android and Staff on Site lacked a specific provision granting Android the right to refuse a
particular worker.
¶ 64 We recognized in Falge that whether a borrowing employer had the right to discharge the
employee can be an additional consideration in determining whether the borrowing employer
had the right to direct and control the manner of the employee’s work. Falge, 2017 IL App
(2d) 160242, ¶ 18. But, as we explained in Falge, the borrowing employer need not have the
power to dismiss the employee from his general employment. Id. Rather, the borrowing
employer must have the power to dismiss the employee from the borrowed employment. Id.;
accord Chaney, 315 Ill. App. 3d at 829.
¶ 65 Here, while Android lacked the power to terminate plaintiff from his general employment
with Staff on Site, the record demonstrates no genuine issue of material fact with respect to
Android’s power to dismiss plaintiff from his temporary employment at Android. Brown
testified that Android “can ask the staffing agency not to have [the worker] return” and to “end
their assignment here.” Brown further confirmed that Android had the right to remove the
worker from its facility and tell the worker to return to Staff on Site. Plaintiff’s position that
Staff on Site could continue to send the worker to Android is unfounded. As Brown testified,
that would “get old in a hurry.” Indeed, plaintiff acknowledged as much when he testified that
Android “can compel [his] employer to get rid of [him].” Plaintiff’s representations in his
verified statement regarding his beliefs and what he was told with respect to the relationship
between Android and Staff on Site do not change the result. See Morales v. Herrera, 2016 IL
App (1st) 153540, ¶ 28 (the plaintiff’s “personal definition of an ‘employer’ has no bearing on
whether [the defendant] was her employer as defined by Illinois law”).
¶ 66 As a final matter, plaintiff contends that summary judgment in Android’s favor was
improper because it was undisputed that he received his salary from Staff on Site. This precise
argument was rejected by our supreme court in A.J. Johnson Paving, 82 Ill. 2d at 349 (the court
did not “deem relevant” that the employee was paid by the loaning employer rather than the
borrowing employer; “[t]he mere fact that the employee does not receive his wages from the
[borrowing] employer will not defeat the finding of a loaned-employee situation”). Accord
Falge, 2017 IL App (2d) 160242, ¶ 23 (“It is inconsequential who actually was paying plaintiff
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for his services.”). Thus, the record demonstrates no genuine issue of material fact with respect
to Android’s direction and control of plaintiff’s work.
¶ 67 2. Express or Implied Contract of Hire Between Android and Plaintiff
¶ 68 An employee’s consent to the requisite contract of hire with the borrowing employer may
be implied in the context of a business like a temporary employment agency. Falge, 2017 IL
App (2d) 160242, ¶ 25; Morales, 2016 IL App (1st) 153540, ¶¶ 31-33; Chaney, 315 Ill. App.
3d at 829. In Falge, the testimony demonstrated that the plaintiff knew he was working for
Lindoo through Labor Ready and that he accepted the temporary employment assignment.
Falge, 2017 IL App (2d) 160242, ¶ 25. Thus, the plaintiff impliedly consented to the borrowed-
employee relationship. Id. In Morales, the temporary employment agency sent the plaintiffs to
work at the defendant’s facility. Morales, 2016 IL App (1st) 153540, ¶ 32. The evidence
established that the plaintiffs accepted the assignment when they “set out to go there” and
accordingly had an implied contract for hire with the defendant. Id. ¶¶ 31-32. In Chaney, there
was no dispute that the plaintiff knew she was working for the defendant through the temporary
placement agency. Chaney, 315 Ill. App. 3d at 829-30. The plaintiff therefore impliedly agreed
to the borrowed-employee relationship. Id. at 830.
¶ 69 Here, too, the evidence established that Staff on Site, as a temporary staffing agency, placed
plaintiff at Android’s facility. Plaintiff accepted the assignment and worked for Android as a
forklift operator. Thus, plaintiff impliedly agreed to the borrowed-employee relationship.
Plaintiff, however, contends that we should consider the express contract between Android and
Staff on Site rather than looking to an implied contract. The court in Morales rejected the same
argument in holding that “the agreement between [the defendant] and [the temporary
employment agency] has no bearing on [the] plaintiffs’ implied contract for hire with [the
defendant].” Morales, 2016 IL App (1st) 153540, ¶ 33. The “loaned employee concept depends
on a contract of hire ‘between the employee and the special employer,’ not the details of the
contract between the two employers.” Id. (quoting A.J. Johnson Paving, 82 Ill. 2d at 348).
Accordingly, the evidence establishes that plaintiff had an implied contract for hire with
Android.
¶ 70 In sum, viewing the evidence strictly against Android and liberally in favor of plaintiff, we
conclude that there is no genuine issue of material fact with respect to the existence of a
borrowed-employee relationship. The trial court, therefore, properly entered summary
judgment in favor of Android on the exclusive-remedy defense set forth in the Act.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, we affirm the trial court’s order granting summary judgment in favor
of Android.
¶ 73 Affirmed.
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