Kolacki v. Verink

No. 3--07--0325
______________________________________________________________________________
Filed August 8, 2008
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
RAMONA KOLACKI, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellant, ) Will County, Illinois
)
v. ) No. 06-L-387
)
LAURA VERINK and RANDALL )
VERINK, ) Honorable
) Gerald R. Kinney,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________
Plaintiff, Ramona Kolacki, brought suit against defendants, Laura and Randall Verink, alleging
violation of the Animal Control Act (510 ILCS 5/1 et seq. (West 2006)) and negligence based on
premises liability for injuries plaintiff sustained when she was kicked in the head by a horse at her job.
Defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2006)). After hearing arguments on the motion, the trial court
found that plaintiff’s action was barred by the exclusive remedy provision of the Illinois Workers’
Compensation Act (820 ILCS 305/5(a) (West 2006)) and granted the motion to dismiss. Plaintiff
filed a motion to reconsider and a motion for leave to file a first amended complaint adding the horse
owner as a defendant. The trial court subsequently denied both motions. Plaintiff appeals, arguing:
(1) that the trial court erred in granting the motion to dismiss, and (2) that the trial court erred in
denying plaintiff leave to file the first amended complaint. We affirm.
FACTS
Defendant Randall Verink (referred to individually as Randall) is the sole owner of Silvercrest
Veterinary Services, Limited (Silvercrest), and works for Silvercrest as a veterinarian. Randall and
his wife, codefendant Laura Verink (referred to individually as Laura), own property in Will County,
Illinois, where their home and a horse facility are located. Silvercrest rents the horse facility from
Laura and Randall (referred to collectively as defendants) and provides horse treatment services and
boarding services at that location. Plaintiff, Ramona Kolacki, worked for Silvercrest at the horse
facility doing general upkeep and maintenance, such as turning out horses, cleaning stalls, and
emptying and cleaning water and feed buckets.
On November 25, 2005, plaintiff was working at the facility cleaning out the stalls. A
prospective buyer was coming to look at a horse that was being boarded at the facility. The owner
of that horse had paid Silvercrest to board the horse at that location. Silvercrest and defendants do
not sell horses and were not involved in the sale. However, because the horse was being boarded at
that facility, Laura was asked to get the horse ready for the prospective buyer. At some point, while
plaintiff was performing her duties, the horse allegedly kicked her in the head, causing significant
injuries.
Plaintiff subsequently filed a workers’ compensation claim against Laura and, later, against
Silvercrest. While the claim was pending, plaintiff brought the instant action in the circuit court of
Will County. The initial complaint named only Laura and Randall as defendants and alleged a
violation of the Animal Control Act and negligence based on premises liability.
Defendants moved to dismiss the complaint pursuant to section 2-619 of the Code of Civil
Procedure (the Code) (735 ILCS 5/2-619 (West 2006)) alleging that plaintiff’s suit was barred by the
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exclusive remedy provision of the Workers’ Compensation Act (820 ILCS 305/5(a) (West 2006)).
Defendants also moved to dismiss the complaint’s allegations against Randall pursuant to section 2-
615 of the Code (735 ILCS 5/2-615 (West 2006)) alleging that the complaint had failed to set forth
any conduct on the part of Randall that would give rise to a negligence claim. Attached to the motion
to dismiss was the affidavit of Laura stating that she has worked for Silvercrest as the bookkeeper
and farm manager for the past several years and that at the time of the accident, she was working as
an employee of Silvercrest.
The trial court granted plaintiff’s motion to conduct limited discovery, in part, and allowed
plaintiff’s attorney to depose Laura regarding the facts relevant to the application of the exclusive
remedy provision. A copy of Laura’s deposition was attached to plaintiff’s response to the motion
to dismiss. During the deposition, Laura initially testified that she was not an employee of Silvercrest.
Defendants’ attorney asked to take a break. After returning from break, upon further questioning,
Laura clarified her answer and stated that she works for Silvercrest as a bookkeeper and barn
manager but that she does not get paid for her services. Laura stated further that she did not receive
any additional money for preparing the horse in question for sale, that she was only paid the standard
boarding fee, and that she was getting the horse ready as part of her responsibilities as the barn
manager of the facility.
A hearing was held on the motion. After considering the arguments of the parties, the trial
court found that plaintiff’s lawsuit was barred by the exclusive remedy provision of the Act and
granted the section 2-619 motion to dismiss. Plaintiff filed a motion for leave to file a first amended
complaint to name the horse owner as an additional defendant. A copy of the first amended
complaint was attached to the motion. A different judge heard, and granted, the motion for leave to
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file the first amended complaint. Plaintiff also filed a motion to reconsider the grant of the motion
to dismiss. The judge that ruled upon the motion to dismiss heard the motion to reconsider. That
judge denied the motion to reconsider and also vacated the other judge’s ruling granting plaintiff leave
to file the first amended complaint. This appeal followed.
ANALYSIS
As her first point of contention on appeal, plaintiff argues that the trial court erred in finding
that defendants are entitled to the protection of the exclusive remedy provision of the Act and in
granting defendants’ section 2-619 motion to dismiss the complaint. Plaintiff asserts that under the
dual-capacity doctrine, defendants are not entitled to the protection of the Act because at the time
of the injury, defendants were acting in a separate and distinct capacity as owners of the property and
as operators of a second business, one that boarded, trained, and sold horses. In the alternative,
plaintiff also asserts as to Laura that the evidence viewed in the light most favorable to plaintiff shows
that Laura was not an employee or agent of Silvercrest at the time of the injury and is not entitled to
the protection of the Act. Defendants argue that the section 2-619 motion to dismiss the complaint
was properly granted. Defendants dispute plaintiff’s claim of dual capacity and assert that the record
before this court clearly establishes that both defendants were working as employees or agents of
Silvercrest at the time of the accident and are entitled to the protection of the Act.1
Section 2-619 of the Code allows a defendant to file a motion for involuntary dismissal of an
action or a claim based upon certain defects or defenses. 735 ILCS 5/2-619 (West 2006). A trial
1
Although the parties also make arguments regarding the section 2-615 motion to dismiss,
since the trial court did not rule upon that motion, we will confine our decision in this case to the
trial court’s ruling on the section 2-619 motion to dismiss.
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court’s grant of a section 2-619 motion to dismiss is subject to a de novo standard of review on
appeal. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 278 (2003). In
conducting that review, the reviewing court must construe all of the pleadings and supporting
documents in the light most favorable to the nonmoving party. Van Meter, 207 Ill. 2d at 367-68,
799 N.E.2d at 278.
The Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2006)) establishes a system
for paying compensation to workers who are accidently injured or killed in the course of their
employment. 820 ILCS 305/2, 5(a) (West 2006). The Act is designed to provide fair compensation
in a prompt manner and to spread the cost of work-related injuries among industry as a whole. Sharp
v. Gallagher, 95 Ill. 2d 322, 326, 447 N.E.2d 786, 788 (1983); Townsend v. Fassbinder, 372 Ill. App.
3d 890, 898, 866 N.E.2d 631, 640-43 (2007). Under the Act, liability is automatically placed upon
the employer, without a determination of fault, and the traditional common law defenses available to
the employer, such as contributory negligence and assumption of risk, are abrogated. Sharp, 95 Ill.
2d at 326, 447 N.E.2d at 788. In return for the imposition of no-fault liability upon the employer,
common law suits against the employer are prohibited. Sharp, 95 Ill. 2d at 326, 447 N.E.2d at 788;
Fitzgerald v. Pratt, 223 Ill. App. 3d 785, 787-89, 585 N.E.2d 1222, 1224-27 (1992). The
compensation provided by the Act is the exclusive remedy for any injury to which the Act applies.
820 ILCS 305/5(a), 11 (West 2006); Sharp, 95 Ill. 2d at 326, 447 N.E.2d at 788.
The Act, however, does not prohibit a worker from bringing suit and collecting full tort
damages against a third-party tortfeasor who is ultimately liable for the worker’s injuries. 820 ILCS
305/5(b) (West 2006); Kontos v. Boudros, 241 Ill. App. 3d 198, 200-01, 608 N.E.2d 573, 575-78
(1993). The theory behind the third-party rule is that the ultimate wrongdoer should pay for the loss.
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Kontos, 241 Ill. App. 3d at 200-01, 608 N.E.2d at 575-78. A variation of the third-party rule is the
dual-capacity doctrine.
Under the dual-capacity doctrine, also referred to as the dual-persona doctrine, a defendant
who is protected by the exclusive remedy provision of the Act may become liable in tort if he acted
in a second capacity that creates obligations independent of those imposed upon the defendant as an
employer. Stewart v. Jones, 318 Ill. App. 3d 552, 564-65, 742 N.E.2d 896, 905-06 (2001). In that
regard, the defendant acting in a dual capacity essentially becomes a third-party tortfeasor for
purposes of the Act. Kontos, 241 Ill. App. 3d at 200-02, 608 N.E.2d at 575-78. A plaintiff alleging
dual capacity has the burden to show: (1) that the defendant operated in a second capacity, separate
and distinct from his first capacity as the plaintiff’s employer, coemployee, or agent; and (2) that the
plaintiff was injured by the defendant as a result of the activities performed by the defendant while
engaging in that second capacity. Kontos, 241 Ill. App. 3d at 200-01, 608 N.E.2d at 575-78. A
plaintiff cannot satisfy the test when the defendant's duties are so intertwined that the defendant’s
conduct in the second capacity does not generate any obligations that are unrelated to the duties
flowing from the defendant’s first capacity as employer, coemployee, or agent. Stewart, 318 Ill. App.
3d at 565, 742 N.E.2d at 905-06. That is, “if the defendant's duties in his second capacity are related
to his duties in his first capacity as employer, agent, or co-employee, [the defendant] remains immune
from liability.” Stewart, 318 Ill. App. 3d at 564, 742 N.E.2d at 905-06.
Reviewing the record of the present case, we find that plaintiff has failed in her burden to
show that the dual-capacity doctrine applies to allow plaintiff’s suit to go forward against defendants.
Contrary to plaintiff’s assertion of multiple businesses, it is clear from the record that only one
business was being conducted on the premises, the business of Silvercrest, which provided medical
treatment and boarding services for horses. Laura’s deposition testimony clearly established that the
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horse in question was not being sold by Silvercrest or defendants at the time of plaintiff’s injury.
Laura was getting the horse ready for a viewing by a prospective buyer in her capacity as the barn
manager of the facility under the employment of Silvercrest. The certainty of these matters is not at
all lessened by the fact the Laura initially testified that she is not an employee of Silvercrest. To adopt
that position, we would have to ignore the remainder of Laura’s testimony where she clarified her
previous answer and explained that although she works for Silvercrest as the bookkeeper and barn
manager, she does not get paid for her services. Plaintiff’s argument, that defendants were acting in
a dual capacity as owners of a separate business, is simply not supported by the record, even when
viewed in the light most favorable to plaintiff.
In addition, plaintiff’s argument that defendants served in a dual capacity as property owners
fails as well. Courts have repeatedly rejected that argument and have held that property ownership
alone does not give rise to a separate and distinct capacity for purposes of the dual-capacity doctrine.
See Sharp, 95 Ill. 2d at 327-28, 447 N.E.2d at 788 (dual-capacity doctrine did not apply to
partnership defendant that owned construction business that employed plaintiff, even though
partnership defendant also owned property where construction work was being done and where
plaintiff’s injury had occurred); Kontos, 241 Ill. App. 3d at 204-05, 608 N.E.2d at 578 (dual-capacity
doctrine did not apply to individual defendant who was manager of corporate-owned restaurant
business that employed plaintiff, even though individual defendant was owner of property where
restaurant business was located and where plaintiff’s injury had occurred); Reynolds v. Clarkson, 263
Ill. App. 3d 432, 435, 636 N.E.2d 91, 93 (1994) (dual-capacity doctrine did not apply to individual
defendant who was president and chief operating officer of corporate-owned grain business that
employed plaintiff, even though individual defendant had originally owned property where grain
business was located and where plaintiff’s injury had occurred and had sold, leased or otherwise
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transferred the property to the corporation); Stewart, 318 Ill. App. 3d at 565-66, 742 N.E.2d at 906
(dual-capacity doctrine did not apply to individual defendants who were employees of company-
owned fertilizer business that employed plaintiff, even though individual defendants owned property
where fertilizer business was located and where plaintiff’s injury had occurred); Incandela v. Giannini,
250 Ill. App. 3d 23, 29, 619 N.E.2d 844, 850 (1993) (dual-capacity doctrine did not apply to
individual defendant who was agent of corporate-owned construction business that employed
plaintiff, even though individual defendant was beneficial owner of property where construction work
was being done and where plaintiff’s injury had occurred); Guerino v. Depot Place Partnership, 273
Ill. App. 3d 27, 32, 652 N.E.2d 410, 414 (1995) (dual-capacity doctrine did not apply to individual
defendants who were officers of corporate-owned concrete business that employed plaintiff, even
though individual defendants were beneficial owners of the property where the business was located
and where plaintiff’s injury had occurred). As in many of the cited cases, the duties of the defendants
in the present case as property owners are so intertwined with their duties as employees and owners
of the business (as to Randall) that the two capacities cannot be separated. See Sharp, 95 Ill. 2d at
327-28, 447 N.E.2d at 788; Kontos, 241 Ill. App. 3d at 204-05, 608 N.E.2d at 578; Reynolds, 263
Ill. App. 3d at 435, 636 N.E.2d at 93; Stewart, 318 Ill. App. 3d at 565-66, 742 N.E.2d at 906;
Incandela, 250 Ill. App. 3d at 29, 619 N.E.2d at 850; Guerino, 273 Ill. App. 3d at 32, 652 N.E.2d
at 414. “ ‘An employer, as part of his business, will almost always own or occupy premises, and
maintain them as an integral part of conducting his business. If every action and function connected
with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would
be reduced to a shambles.’ ” Sharp, 95 Ill. 2d at 328, 447 N.E.2d at 788, quoting 2A A. Larson,
Workmen’s Compensation §72.82 (1982).
As her next point of contention on appeal, plaintiff argues that the trial court erred in denying
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her motion for leave to file a first amended complaint naming the horse owner as an additional
defendant. Plaintiff asserts that the trial court incorrectly believed that it did not have jurisdiction to
grant plaintiff’s motion because a notice of appeal had already been filed. Alternatively, plaintiff
contends that justice would have been served by granting plaintiff’s motion and allowing plaintiff to
file the first amended complaint. Defendants argue that allowing plaintiff to file the first amended
complaint would not have furthered the ends of justice and that the trial court properly denied
plaintiff’s request.
Trial courts are encouraged to freely and liberally allow a party to amend the pleadings. 735
ILCS 5/2-616 (West 2006); Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467, 605 N.E.2d 493,
508 (1992). A party’s right to amend, however, is not absolute or unlimited. Lee, 152 Ill. 2d at 467,
605 N.E.2d at 508. The test is whether allowing the amendment would further the ends of justice.
Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 48, 594 N.E.2d 1344, 1349 (1992). In
determining whether to allow a party to amend a pleading, a trial court should consider the following
factors: whether the amendment would cure a defect in the pleadings; whether the other party would
be prejudiced or surprised by the proposed amendment; whether the proposed amendment is timely;
and whether there were previous opportunities to amend the pleadings. Lee, 152 Ill. 2d at 467-68,
605 N.E.2d at 508. A trial court has broad discretion in ruling upon a motion for leave to amend the
pleadings and its decision in that regard will not be reversed on appeal absent an abuse of discretion.
Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 938, 684 N.E.2d 872, 882 (1997).
Applying the above legal principles to the facts of the present case, we find that the motion
for leave to file a first amended complaint (request for leave) was properly denied. First, the request
for leave was not timely made. Although plaintiff asserts that she did not learn the name of the owner
of the horse until late in the proceedings, she does not explain how this prevented her from seeking
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leave prior to the trial court’s grant of the motion to dismiss. At the very least, plaintiff could have
told the trial court, prior to the granting of the motion to dismiss, that plaintiff planned to request
leave to file an amended complaint and could have asked the trial court to stay its ruling on the
motion to dismiss while plaintiff filed and obtained a ruling on her request for leave. Second, the
proposed first amended complaint would not cure a defect in the original pleading. Plaintiff set forth
nothing new in the first amended complaint that would defeat the instant defendants’ rights to the
protection of the exclusive remedy provision of the Act. Third, plaintiff has already filed another case
directly against the horse owner. And finally, contrary to plaintiffs’ assertion, although the trial court
initially questioned whether it had jurisdiction to rule upon the request for leave since a notice of
appeal had already been filed, after listening to the parties’ recitations of the current state of the law
on that issue, the trial court went ahead and ruled on the request for leave. The trial court did not
commit an abuse of discretion by denying plaintiff’s request for leave to file a first amended
complaint.
For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
Affirmed.
SCHMIDT and O’BRIEN, J. J. concurring.
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