{ "id": 5441657, "name": "JOHNNY E. CUERTON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, INC., Defendant-Appellee", "name_abbreviation": "Cuerton v. Abbott Laboratories, Inc.", "decision_date": "1982-12-09", "docket_number": "No. 82-229", "first_page": "261", "last_page": "267", "citations": [ { "type": "official", "cite": "111 Ill. App. 3d 261" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "85 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469643 ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0352-01" ] }, { "cite": "85 Ill. 2d 565", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3116518 ], "year": 1981, "pin_cites": [ { "page": "534-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0529-01" ] }, { "cite": "60 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415467 ], "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0141-01" ] }, { "cite": "79 Ill. 2d 629", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606601 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0117-01" ] }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] }, { "cite": "85 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469094 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0124-01" ] }, { "cite": "551 F.2d 745", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 980403 ], "year": 1978, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/f2d/551/0745-01" ] }, { "cite": "66 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3320214 ], "weight": 7, "pin_cites": [ { "page": "667-69" }, { "page": "669" }, { "page": "669-70" }, { "page": "667" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0664-01" ] }, { "cite": "66 Ill. 2d 642", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3385826 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "571, 573" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0568-01" ] }, { "cite": "27 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863203 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0331-01" ] }, { "cite": "46 Ill. App. 3d 42", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2974339 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0042-01" ] }, { "cite": "25 Ill. App. 3d 606", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2704277 ], "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0606-01" ] } ], "analysis": { "cardinality": 747, "char_count": 17455, "ocr_confidence": 0.765, "pagerank": { "raw": 1.4005886790027235e-07, "percentile": 0.6446138365595832 }, "sha256": "67c9f667187df886290494a6b0af501c44fb5eca2f765a7072b02b104f62ead0", "simhash": "1:35bdf5e0681755eb", "word_count": 2863 }, "last_updated": "2023-07-14T21:36:05.990742+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHNNY E. CUERTON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nThe plaintiff, Johnny E. Cuerton, filed a complaint at law against the defendant, Abbott Laboratories, Inc. (Abbott), alleging a breach of employment contract.\nThe complaint alleged the plaintiff had been employed by Abbott by verbal agreement from 1969 to December 1979; that their agreement included by law an implied duty of good faith and fair dealing; that the \"discharge of employees was limited by the provisions of rules and regulations promulgated by Abbott and that employees were entitled to certain medical and disability benefits; that despite Abbott\u2019s knowledge that plaintiff was afflicted with tremors on the hand, Abbott on many occasions required plaintiff to perform work involving fine movements of the hands; that doctors and other medical staff employed by Abbott were aware of plaintiff\u2019s symptoms and failed either to provide or refer plaintiff to expert medical services; that Abbott discharged plaintiff from employment in December 1979, although plaintiff had been for some time and was then and there incapable of performing the duties of his employment and was in need of immediate medical and surgical treatment for his ailment, communicating hydrocephalus; that after his discharge, the plaintiff became personally liable for substantial medical bills for treatment he received for his condition due to the fact Abbott had wrongfully cancelled plaintiff\u2019s group employee benefits insurance policies and disability income benefits, although the plaintiff was at the time of discharge and for some time prior, incapable of performing the duties of his employment due to his illness.\nPlaintiff claimed damage in the amount of $15,000 plus costs for his medical insurance and disability benefits and for future medical expenses, loss of earnings, and pain and suffering.\nAbbott filed a motion to strike and dismiss with prejudice for failure to state a cause of action. (Ill. Rev. Stat. 1981, ch. 110, par. 45, recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014615.) The trial court granted Abbott\u2019s motion with leave to amend.\nPlaintiff\u2019s amended complaint alleged in essence that Abbott, through its agents and employees, breached its implied duty of good faith and fair dealing by requiring plaintiff to perform work which had been prohibited by certain of Abbott\u2019s other agents and employees, in view of the plaintiff\u2019s hand tremors; that medical personnel employed by Abbott for its own benefit and advantage failed to properly diagnose plaintiff\u2019s condition and should have known that he was unable to perform the duties of his employment on a daily basis due to his illness; and that the aforesaid acts of Abbott violated the public policy of Illinois set forth in the Equal Opportunities for the Handicapped Act. (Ill. Rev. Stat. 1979, ch. 38, par. 65\u201421 through 65\u201431.) Abbott again filed a motion to dismiss the amended complaint and the plaintiff responded to the motion, contending that if the amended complaint fails to state a cause of action for wrongful discharge of an employee, then at least the complaint sets forth a cognizable cause of action for malpractice since liability is imposed on an employer under the doctrine of respondeat superior for malpractice committed by medical personnel which are provided to employees for the benefit or advantage of the employer. On February 16, the trial court ordered the amended complaint be stricken with prejudice for failing to state a cause of action, and this appeal was taken from that judgment.\nPlaintiff concedes that his employment relationship was \u201cat will\u201d since it was for an indefinite term and that, generally \u201cat will\u201d employees can be discharged for any reason or for no reason. (Roemer v. Zurich Insurance Co. (1975), 25 Ill. App. 3d 606, 610.) Nevertheless the plaintiff contends \u2014 correctly so \u2014 that as a matter of law every contract includes a duty of good faith and fair dealing. (Pierce v. Mac-Neal Memorial Hospital Association (1977), 46 Ill. App. 3d 42.) He contends the trial court erred in dismissing his amended complaint since pursuant to the general rule, it sets forth factual allegations which, if proven, would have established that Abbott breached its implied duty and entitled him to the relief sought. In re Estate of Libchik (1975), 27 Ill. App. 3d 331.\nPlaintiff specifically notes that no Illinois case has clearly defined \u201cgood faith and fair dealing\u201d in the employment context. He points to two Illinois cases, Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, appeal denied (1977), 66 Ill. 2d 642, and Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, which have considered conduct alleged to be in bad faith.\nThe court in Stevenson considered plaintiff\u2019s claim that his termination was a bad faith effort by his employer in order to avoid his conditional duty to pay pension benefits to him under the terms of a prior written pension agreement. That court heard testimony that, following a merger, the plaintiff\u2019s employer had closed down the corporate acquisitions division and terminated the plaintiff because his function had been taken over by the parent corporation, which already had an acquisition function for the entire system. Consequently, the court concluded the employer\u2019s decision to discharge the plaintiff was not made in bad faith; rather, it was based on sound business reasons. 51 Ill. App. 3d 568, 571, 573.\nIn Criscione, the court suggested that some \u201cabusive pattern\u201d on the part of the employer must be alleged. Plaintiff had appealed the dismissal with prejudice of his complaint to recover damages for his alleged wrongful and abusive discharge from defendant\u2019s employ. Plaintiff argued on appeal that the complaint properly stated a cause of action in both tort and contract because the dismissal violated public policy and was made in bad faith rather than for a legitimate business purpose. The plaintiff had alleged that upon his return to work after treatment for a bleeding ulcer, his employer embarked upon an abusive course of conduct designed to force him to quit and/or to create a cause for his discharge. Plaintiff alleged his employer transferred him to a highly technical job without adequate preparation or training, verbally berated his subsequent poor performance in the position in front of management personnel, and demanded that he take a lesser paying job or be terminated. The court found the plaintiff\u2019s employment was \u201cat will,\u201d and subject to termination at any time by either party, for or without cause. The court determined that plaintiff\u2019s cause of action, if any, had to arise out of a violation of a statute or of public policy. Plaintiff contended on appeal his termination did violate public policy, because he had been dismissed for no legitimate business reason after he developed a bleeding ulcer which did not impair his performance on the job.\nThe Criscione court noted the basic statements of Illinois employment policy were found in article I, sections 17 and 19 of the 1970 Constitution (Ill. Const. 1970, art. I, secs. 17, 19), which forbid discrimination in hiring and promotion based on race, color, creed, national ancestry, sex and mental or physical handicap. It found plaintiff\u2019s contention was a conclusion which was unsupported by the allegations of his complaint. The court found plaintiff failed to allege any connection between his ulcer and his performance and subsequent dismissal, or to state any facts relating to the nature of his work with Sears. The court concluded the plaintiff had stated no cause of action in tort against his employer. The court, recognizing that good faith is an element implied in every contract, nevertheless found there were no factual allegations in plaintiff\u2019s complaint indicating bad faith dealing or an abusive pattern on the part of his employer. Further, there were no allegations regarding an agreement between the plaintiff and his employer pertaining to pension benefits, or that plaintiff\u2019s rights to such rights had vested. 66 Ill. App. 3d 664, 667-69.\nMost notably, however, the court refused to accept his argument that a dismissal of an at will employee that is not done for a legitimate business reason constitutes both a violation of public policy and a bad faith breach of contract. The court noted that \u201c[a]n employee at will may quit his employment for any reason at any time and is not bound to make his decision on the basis of whether or not it is a good business decision. The obligation of the employer should be no more nor less.\u201d (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 669.) The court stated the rule in Illinois is that \u201can employment at will relationship can be terminated for \u2018a good reason, a bad reason, or no reason at all.\u2019 See Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 747.)\u201d Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 669-70.\nPlaintiff argues Abbott knew, or should have known that he was ill and unable to work, knew or should have known the cause of the illness, and knew or should have known he was in need of medical care. Nevertheless, in breach of its implied duty of good faith and fair dealing, Abbott discharged the plaintiff, thus depriving him of medical leave, sick leave, sick pay and medical insurance coverage, as well as potential disability benefits. Plaintiff additionally argues Abbott\u2019s conduct as alleged in the amended complaint violated public policy as set forth in the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1979, ch. 38, par. 65\u201421 et seq.). He notes two Illinois decisions that have recognized the tort of \u201cretaliatory discharge,\u201d the foundation for which is the protection of public policy. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.\nIn response, Abbott argues that plaintiff\u2019s complaint fails to set forth any facts which would support a finding that the plaintiff was discharged in order to avoid having to pay him medical or disability benefits. Plaintiff\u2019s complaint does not allege he was discharged because of his illness, only that he had an illness and was discharged. Likewise, plaintiff does not allege he ever made \u2014 or Abbott refused to honor \u2014 claims for medical or disability benefits while he was employed.\nPlaintiff\u2019s complaint alleges no facts which, if proven, would establish that Abbott had a duty to know of or to treat plaintiff\u2019s illness, only that Abbott failed to do so. Consequently, Abbott concludes that since plaintiff failed to make any factual allegations indicating bad faith dealing on the part of Abbott, no cause of action for breach of an \u201cat will\u201d employment contract was stated, and the trial court properly dismissed the complaint. Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664.\nAbbott further argues that the plaintiff\u2019s complaint failed to state a cause of action in tort for retaliatory discharge. Abbott points out that the plaintiff\u2019s brief intermingles the theories of breach of contract and the tort of retaliatory discharge. Citing Sargent v. Illinois Institute of Technology (1979), 78 Ill. App. 3d 117, appeal denied (1980), 79 Ill. 2d 629, Abbott contends that the plaintiff cannot change the theory upon which his claim is based for the first time on appeal. The authority cited in Sargent, Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, has been held inapplicable, however, when the issue in the appellate court is whether that \u201cnew theory\u201d was properly set out in plaintiff\u2019s complaint in the first place. (Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 534-35, appeal denied (1981), 85 Ill. 2d 565.) Additionally, although separate causes of action should properly be stated in separate counts (Ill. Rev. Stat. 1981, ch. 110, par. 33(2), recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 603(b)), the record does not indicate Abbott raised an objection to this defect below and, as the trial court did in Criscione, this court may make separate evaluations of the complaint as a whole in considering each of the claimed causes of action. 66 Ill. App. 3d 664, 667.\nThe thrust of the plaintiff\u2019s argument is essentially two-fold. First, that his allegations of Abbott\u2019s discharge of him after failing to correctly diagnose and treat his illness was sufficient to state a cause of action for breach of the implied duty of good faith and fair dealing which is inherent in every contract. Second, that his allegation that Abbott\u2019s discharge of him under the circumstances alleged a violation of a stated public policy of the State of Illinois (Ill. Rev. Stat. 1979, ch. 38, par. 65\u201421, et seq.) and was thus sufficient to state a cause of action for the recognized tort of \u201cretaliatory discharge\u201d as that tort was discussed in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, and Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124.\nPlaintiff\u2019s arguments on both theories are without merit. As to the breach of implied contractual duty of good faith and fair dealing, the plaintiff makes no allegations which suggest that the plaintiff was discharged because he was ill, or that he had sought and been denied medical and/or disability benefits while he was employed by Abbott. It would appear from the plaintiff\u2019s own pleadings that he had been for some time and was then unable to perform the duties of his employment. Plaintiff seems to be taking the position that Abbott\u2019s failure to initiate the care and treatment of an ailment which was preventing the plaintiff from either partially or entirely performing his job was in bad faith, unfair and, ultimately, a breach of his oral \u201cat will\u201d employment contract with Abbott.\nAs pointed out by Abbott, the plaintiff makes no allegations his illness occurred on the job or was work-related in any manner, or that his illness qualified him to receive the medical benefits to which he alleged he was entitled. Further, if the plaintiff\u2019s illness did arise out of a work-related incident, there is no common law cause of action for the alleged malpractice of a company physician in treating another employee of the company, since our supreme court has held that the Workers\u2019 Compensation Act provides the sole means of recovery for alleged malpractice by a company physician in treating an employee of the company. (McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352.) Similarly, the plaintiff has not alleged that the availability of medical services provided by Abbott prevented him from seeking other independent medical services. In sum, we conclude the plaintiff\u2019s complaint failed to state a cause of action under the theory of breach of contract.\nLikewise, the plaintiff\u2019s complaint fails to state a cause of action under the tort theory of retaliatory discharge. The Kelsay and Palmateer cases indicate that a cause of action for retaliatory discharge has been stated if the employer has discharged the employee in retaliation for the employee\u2019s activities, and the discharge was in contravention of -a clearly mandated public policy which favored the activity on which the discharge was predicated. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134.) Plaintiff here has made no allegation of retaliatory action on the part of Abbott, and the public policy plaintiff relies on, the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1979, ch. 38, par. 65\u201421 et seq.) was repealed and replaced by the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1\u2014101 et seq.), which became effective July 1, 1980, slightly over a year before the instant complaint was filed.\nNeither party has argued whether the complaint states a cause of action under that act; therefore, we do not consider whether it does. Even under the former act, a physical handicap was defined inter alia as a \u201chandicap unrelated to one\u2019s ability to perform jobs ***.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 65 \u2014 22.) The act made it unlawful for an employer to discharge any individual because of such individual\u2019s physical or mental handicap, \u201cunless it [could] be shown that the particular handicap prevents the performance of the employment involved.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 65\u201423(1).) Plaintiff\u2019s own allegations make it clear his illness prevented him from performing his job for some time prior to his discharge. Consequently, we conclude plaintiff\u2019s complaint also failed to state a cause of action in tort, and it was properly dismissed by the trial court.\nWith regard to the dismissal with prejudice, the record does not show the plaintiff requested leave to amend. Plaintiff\u2019s notice of appeal requests this court to vacate the trial court\u2019s order, and remand the cause with directions that Abbott be required to answer the plaintiff\u2019s amended complaint. Plaintiff has thus elected to stand on his complaint and has waived the issue. Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 670.\nThe judgment of the circuit court of Lake County is affirmed.\nJudgment affirmed.\nHOPE and NASH, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "G. Douglas Grimes, of Stone & Grimes, of Waukegan, for appellant.", "Steven L. Larson, of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee." ], "corrections": "", "head_matter": "JOHNNY E. CUERTON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, INC., Defendant-Appellee.\nSecond District\nNo. 82\u2014229\nOpinion filed December 9, 1982.\nG. Douglas Grimes, of Stone & Grimes, of Waukegan, for appellant.\nSteven L. Larson, of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee." }, "file_name": "0261-01", "first_page_order": 283, "last_page_order": 289 }