{ "id": 3471774, "name": "GERALD MILLER, Plaintiff-Appellant, v. DONALD L. MILLER, d/b/a Miller Dry Wall, Defendant and Counterdefendant-Appellee (Steve Horve et al., d/b/a Horve & Oleson Construction Company, Defendants and Counterplaintiffs-Appellees)", "name_abbreviation": "Miller v. Miller", "decision_date": "1988-03-17", "docket_number": "No. 4-87-0691", "first_page": "176", "last_page": "181", "citations": [ { "type": "official", "cite": "167 Ill. App. 3d 176" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "442 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3096847 ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0467-01" ] }, { "cite": "408 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480680 ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0229-01" ] }, { "cite": "451 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. 2d 479", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114553 ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0479-01" ] }, { "cite": "385 N.E.2d 1112", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 211", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3309421 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0211-01" ] }, { "cite": "353 N.E.2d 83", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2969361 ], "weight": 2, "pin_cites": [ { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/1038-01" ] }, { "cite": "379 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622813 ], "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0328-01" ] } ], "analysis": { "cardinality": 556, "char_count": 11574, "ocr_confidence": 0.757, "pagerank": { "raw": 7.134100295983226e-08, "percentile": 0.42812302956658865 }, "sha256": "1a6bb4bcde41a1de96a530643a1a03f3b932911bba4c3fdef3d77e0d8f6bc57c", "simhash": "1:58d234a6040e8ead", "word_count": 1861 }, "last_updated": "2023-07-14T16:28:30.258145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GERALD MILLER, Plaintiff-Appellant, v. DONALD L. MILLER, d/b/a Miller Dry Wall, Defendant and Counterdefendant-Appellee (Steve Horve et al., d/b/a Horve & Oleson Construction Company, Defendants and Counterplaintiffs-Appellees)." ], "opinions": [ { "text": "PRESIDING JUSTICE GREEN\ndelivered the opinion of the court:\nPlaintiff Gerald Miller filed a claim under the Illinois Workers\u2019 Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) against defendants Donald Miller, d/b/a Miller Dry Wall (subcontractor), and Steve Horve and Bud Oleson, d/b/a Horve and Oleson Construction Company (contractors), for injuries he received while hanging dry wall in a building being constructed by the defendant contractors. The parties entered into a lump sum settlement contract on April 21, 1986, and plaintiff received payments from both the contractors and the subcontractors. On June 5, 1986, plaintiff filed a common law negligence action and an action under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) against all defendants. The two counts directed against the subcontractor were dismissed pursuant to defendant\u2019s motion to dismiss, and judgment was entered on the two counts directed against the contractors pursuant to their motion for summary judgment. Plaintiff appeals both rulings. We affirm.\nWe note initially, defendants Horve and Oleson argue this court should dismiss the appeal, because plaintiff\u2019s brief failed to comply with Supreme Court Rules 341(e)(1) and 342(a). (107 Ill. 2d Rules 341(e)(1), 342(a).) Rule 341(e)(1) requires that the \u201cPoints and Authorities\u201d. section of the brief include a reference to the page of the brief on which each heading and authority appear (107 Ill. 2d R. 341(e)(1)). Rule 342(a) requires the appellant to include a copy of the judgment appealed from in the appendix to the brief. (107 Ill. 2d R. 342(a).) These rules should have been followed. We note, however, that the rules are not a limitation upon the jurisdiction of a court of review, but rather are an admonishment to the parties. (Brown v. Brown (1978), 62 Ill. App. 3d 328, 332, 379 N.E.2d 634, 637.) Because we are affirming the dismissal, we will not strike the brief because of its infirmities.\nThe basis for both the motion to dismiss and the motion for summary judgment was that plaintiff\u2019s exclusive remedy was under the Workers\u2019 Compensation Act, and since plaintiff received compensation under that Act, he was barred from further action against defendants.\nSection 5(a) of the Workers\u2019 Compensation Act provides:\n\u201cNo common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them 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, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.\u201d (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a).)\nSection 1(a)(3) of the Act requires a contractor to make a compensation payment when the subcontractor has no workers\u2019 compensation insurance. (111. Rev. Stat. 1985, ch. 48, par. 138.1(a)(3).) Section 11 of the Act provides:\n\u201cThe compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.\u201d Ill. Rev. Stat. 1985, ch. 48, par. 138.11.\nAt a hearing on the motion for summary judgment, the facts presented to the court included: (1) the allegations in the complaint; (2) plaintiff\u2019s response to defendants\u2019 request to admit facts or genuineness of documents; and (3) an affidavit of defendant Donald Miller.\nPlaintiff\u2019s complaint alleged, inter alia, (1) at the time of his injury, he was a contract laborer as a dry wall hanger working for defendant Miller, (2) defendant Miller was a subcontractor hired by the defendant contractors to perform certain dry wall hanging work, and (3) while using an aluminum ladder in the performance of his duties, plaintiff fell and was injured. He sought damages under the Structural Work Act and common law negligence theories. In his response to defendants\u2019 request to admit facts, plaintiff further indicated (1) when he fell from the ladder, he fractured his wrist, (2) he filed workers\u2019 compensation claims in relation to his injuries against both the contractor and the subcontractor, (3) he entered into a lump sum settlement agreement for $6,500 from the contractors, and (4) the contractors paid the claim on behalf of the subcontractor, who had no workers\u2019 compensation insurance. In an affidavit, Donald Miller indicated he also paid plaintiff $1,500 as his portion of the workers\u2019 compensation settlement.\nOn appeal, plaintiff asserts that the mere claim for and acceptance of workers\u2019 compensation benefits does not preclude him from pursuing his present claim against these defendants. He argues that he accepted the compensation payments because of his financial need at the time, although he did not consider himself to be an employee but, rather, an independent contractor. He further argues that a question of fact exists as to whether there was an employer-and-employee relationship.\nPlaintiff cites Hendricks v. Bettner (1976), 40 Ill. App. 3d 1038, 353 N.E.2d 83, in support of his argument. There, the trial court granted the defendant\u2019s motion for summary judgment on the basis that plaintiff\u2019s claim for personal injury was barred by the fact he had received workers\u2019 compensation payments for the same occurrence. The appellate court reversed, noting that letters written by plaintiff\u2019s attorney, in support of plaintiff\u2019s claim for workers\u2019 compensation benefits, were not conclusive judicial admissions. The court further noted that plaintiff\u2019s claim he was an employee was an \u201cevidential [admission]\u201d which was self-serving when made and, thus, \u201cfar from conclusive.\u201d Hendricks, 40 Ill. App. 3d at 1041, 353 N.E.2d at 85, citing McCormick, Evidence \u00a7262, at 630 (2d ed. 1972).\nPlaintiff also cites Stemm v. Rupel (1979), 68 Ill. App. 3d 211, 385 N.E.2d 1112, where the plaintiff was injured, accepted partial workers\u2019 compensation payments from his employer, and then brought suit against the defendants for the compensated injuries. The trial court initially granted defendants\u2019 motion to dismiss, finding that plaintiff\u2019s acceptance of workers\u2019 compensation benefits was an acknowledgment that, at the time of the occurrence, he was in the course of his employment. On the first appeal, the court reversed, stating that the suit was not barred by section 5(a) of the Workers\u2019 Compensation Act, and the plaintiff\u2019s acceptance of benefits would not affect plaintiff\u2019s right to maintain an action against defendants if his injuries had not in fact resulted from an occurrence arising out of and in the course of his employment.\nOn remand, the trial court granted the defendants\u2019 motion for summary judgment on the basis that there was no genuine issue as to any material fact concerning plaintiff\u2019s employment status. The appellate court again reversed, holding that the issue as to whether plaintiff\u2019s injuries were a result of an occurrence arising out of and in the course of his employment was not a question of law but one of fact.\nIn both cases cited by plaintiff, the plaintiff had accepted partial workers\u2019 compensation benefits. In neither case, apparently, did the plaintiff execute a lump sum settlement agreement in full payment of all claims due for his injuries as did the plaintiff here. In addition, here, the settlement contract was encompassed in the order of the Industrial Commission, and thus, plaintiff\u2019s acknowledgments in the contract that he was an employee and that the settlement was in full payment of his injuries are given the status of a judicial admission. Thus, plaintiff\u2019s employment status, and the fact his injuries arose out of that status, has been conclusively determined by his actions in the workers\u2019 compensation action.\nMoreover, the cases cited by plaintiff have been, at least implicitly, overruled by subsequent decisions of the Illinois Supreme Court.. In Fregeau v. Gillespie (1983), 96 Ill. 2d 479, 451 N.E.2d 870, the cotirt indicated, under circumstances where an employee was injured as a result of a fellow employee\u2019s intentional actions, that the injured employee was barred from pursuing a common law tort action against his employer or a coemployee where he had agreed to accept workers\u2019 compensation benefits. The court further noted that, where an employee has collected some workers\u2019 compensation benefits, he could not allege in a civil suit that the injuries fall outside of the Act\u2019s provisions.\nIn addition, in Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198, the court said an employee could not collect compensation under the Workers\u2019 Compensation Act and then file suit against a coemployee for civil damages relating to the compensated injuries. The court\u2019s conclusion was based on a fear of double recovery as well as a desire to prevent the proliferation of litigation. Finally, in Rhodes v. Industrial Comm\u2019n (1982), 92 Ill. 2d 467, 442 N.E.2d 509, the Industrial Commission affirmed the arbitrator\u2019s denial of an award, but the plaintiff, nevertheless, entered into a settlement with defendants. Although the settlement purported to preserve plaintiff\u2019s workers\u2019 compensation claim, the court indicated the attempt to continue the compensation claim was ineffectual, because an employee could not recover under both the Workers\u2019 Compensation Act and at common law.\nIn both Collier and Fregeau, the plaintiffs had received at least some workers\u2019 compensation benefits. In Rhodes, the plaintiff had not received any benefits under the Act but had entered into a settlement agreement with defendants. In all cases, however, the court made clear its intention that a worker could receive only one award for his injuries.\nIn light of (1) the supreme court\u2019s policy determination that a worker should not be permitted double recovery for his injuries, (2) the court\u2019s observation that the legislature intended the compensation system to replace common law remedies, and (3) the language of sections 5(a) and 11 of the Act indicating the Act is to be an exclusive remedy, we conclude the trial court was correct in barring plaintiff\u2019s action.\nFor the reasons stated, the decision of the trial court is affirmed.\nAffirmed.\nLUND and SPITZ, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GREEN" } ], "attorneys": [ "Randolph M. Rich, of Meehling, Rich & Bernardoni, of Marshall, for appellant.", "William O. Martin, Jr., of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees Steve Horve and Bud Oleson.", "Gregory A. Scott, of Scott, Beeman & Scott, P.C., of Springfield, for appellee Donald L. Miller." ], "corrections": "", "head_matter": "GERALD MILLER, Plaintiff-Appellant, v. DONALD L. MILLER, d/b/a Miller Dry Wall, Defendant and Counterdefendant-Appellee (Steve Horve et al., d/b/a Horve & Oleson Construction Company, Defendants and Counterplaintiffs-Appellees).\nFourth District\nNo. 4\u201487\u20140691\nOpinion filed March 17, 1988.\nRandolph M. Rich, of Meehling, Rich & Bernardoni, of Marshall, for appellant.\nWilliam O. Martin, Jr., of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees Steve Horve and Bud Oleson.\nGregory A. Scott, of Scott, Beeman & Scott, P.C., of Springfield, for appellee Donald L. Miller." }, "file_name": "0176-01", "first_page_order": 198, "last_page_order": 203 }