{ "id": 2431211, "name": "BERNARD MOTSCH, Plaintiff-Appellee and Cross-Appellant, v. PINE ROOFING COMPANY, INC., et al., Defendants-Appellants and Cross-Appellees (Tracy Motsch, Plaintiff)", "name_abbreviation": "Motsch v. Pine Roofing Co.", "decision_date": "1988-09-12", "docket_number": "No. 87-1781", "first_page": "169", "last_page": "179", "citations": [ { "type": "official", "cite": "178 Ill. App. 3d 169" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "461 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 290", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524207 ], "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0290-01" ] }, { "cite": "457 N.E.2d 1042", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1044" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592875 ], "year": 1986, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0150-01" ] }, { "cite": "450 N.E.2d 1199", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1207" } ], "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. 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App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3123286 ], "pin_cites": [ { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0915-01" ] }, { "cite": "491 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "483" }, { "page": "484" } ], "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450117 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "580" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0550-01" ] }, { "cite": "174 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "22 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "382 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 958", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3332745 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0958-01" ] }, { "cite": "241 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 2d 6", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2821135 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0006-01" ] }, { "cite": "272 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5314462 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0345-01" ] }, { "cite": "418 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128355 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0703-01" ] }, { "cite": "462 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 911", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523693 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0911-01" ] }, { "cite": "487 N.E.2d 1167", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 604", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568343 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0604-01" ] }, { "cite": "147 N.E.2d 200", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 2d 561", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5175346 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0561-01" ] }, { "cite": "476 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 235", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3437056 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0235-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "488 N.E.2d 1103", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1105" }, { "page": "1105" } ], "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 618", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530885 ], "weight": 2, "pin_cites": [ { "page": "620" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0618-01" ] }, { "cite": "384 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "pin_cites": [ { "page": "358" }, { "page": "359" }, { "page": "359" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "weight": 7, "pin_cites": [ { "page": "181" }, { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] }, { "cite": "367 N.E.2d 111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 182", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3386702 ], "year": 1978, "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0182-01" ] }, { "cite": "421 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469094 ], "year": 1977, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0124-01" ] } ], "analysis": { "cardinality": 982, "char_count": 22414, "ocr_confidence": 0.726, "pagerank": { "raw": 3.33533191789342e-07, "percentile": 0.873838976712542 }, "sha256": "079917503d076eb72e90d9c2bc809bc6834357c90a33d76b80d163286736bc0a", "simhash": "1:777d41127ecc158e", "word_count": 3586 }, "last_updated": "2023-07-14T17:15:09.210343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BERNARD MOTSCH, Plaintiff-Appellee and Cross-Appellant, v. PINE ROOFING COMPANY, INC., et al., Defendants-Appellants and Cross-Appellees (Tracy Motsch, Plaintiff)." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nPlaintiffs Bernard A. Motsch (plaintiff) and Tracy Motsch (Tracy) filed a complaint against their former employers, Martin J. Pine and Pine Roofing Company, Inc. (defendants), alleging retaliatory discharge and retaliatory refusal to recall. Under count I of their complaint, plaintiff and Tracy claimed that defendants discharged them in retaliation for plaintiff having filed a claim under the Workers\u2019 Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Count II further charged that defendants refused to recall plaintiff and Tracy to active service for the same reason. During a jury trial, the court directed a verdict against Tracy at the close of his evidence. After deliberations, the jury returned a verdict in favor of defendants on count I, but awarded plaintiff $9,410.25 compensatory damages and $28,639 punitive damages on count II of the complaint.\nDefendants appeal the jury\u2019s verdict on count II, requesting a judgment notwithstanding the verdict, a new trial, or, in the alternative, a remittitur of damages. To support their appeal, defendants raise the following errors: (1) the evidence does not establish the essential elements for the tort of retaliatory discharge based upon refusal to recall; (2) the trial court erred in striking defendants\u2019 affirmative defense; (3) the trial court erred in tendering faulty jury instructions relating to the elements of the tort; (4) defendant Pine cannot be held personally liable as a matter of law; (5) the trial court erred in tendering a faulty jury instruction relating to punitive damages; (6) the punitive damage award is excessive and unsupported by the evidence; and (7) the compensatory damage award is excessive and against the manifest weight of the evidence.\nPlaintiff filed a cross-appeal as to the jury\u2019s verdict on count I, conditioned upon this court granting defendants\u2019 requested relief on count II. Plaintiff alleges that the trial court committed reversible error by refusing to admit plaintiff\u2019s opinion testimony as to what constitutes a termination of employment and by admitting the same testimony from plaintiff\u2019s witness on cross-examination. For the following reasons, we affirm the jury verdict on count II and therefore need not address issues raised by plaintiff\u2019s cross-appeal.\nThe record discloses that defendant Pine Roofing is a union roofing company which employs at-will journeymen roofers through defendant Martin Pine, its executive vice-president and sole shareholder. According to expert testimony, there is a seasonal slowdown in roofing work in Chicago from November until March, during which time roofers are terminated from their employment. Generally, such terminated employees are paid in full and informed that there is no more work available. Roofing companies often call back the same employees at the end of the seasonal slowdown that they employed before the slowdown.\nFor over 30 years, plaintiff was employed seasonally as a roofer for many contractors. Before commencing his employment with defendants in August 1982, defendant had been employed by one contractor for seven years and in 1982 voluntarily terminated Ms employment with another employer which began in 1980. At the time of trial in 1987, plaintiff was working for an employer for two consecutive years.\nOn December 3, 1982, after picking up his paycheck, plaintiff fell down some stairs on defendants\u2019 premises and sustained injuries. As a result, plaintiff filed a workers\u2019 compensation claim on December 10, 1982. Plaintiff introduced the following testimony concermng the events that occurred thereafter. In March 1983, plaintiff\u2019s wife, Joan Motsch, telephoned defendant Pine to inquire into plaintiff\u2019s returning to work. In response to her inquiry, Pine stated: \u201cNo roofer that sues me is coming back.\u201d Although defendants Mred roofers from April through June 1983, plaintiff never returned to work for defendant and did not obtain steady employment elsewhere until October 1983.\nUnder the general rule governing employment relationships, an at-will employee may be terminated at any time for any or no cause. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878; Pleasure Driveway & Park District v. Jones (1977), 51 Ill. App. 3d 182, 190, 367 N.E.2d 111, 117.) Illinois courts have recognized an exception to this general rule, however, for certain retaliatory discharges. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, for example, our supreme court sanctioned a tort action against employers who discharge employees for exercising their statutory rights under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), in order to implement the Act\u2019s policies of protecting employees and promoting the State\u2019s general welfare. (Kelsay, 74 Ill. 2d at 181, 384 N.E.2d at 358.) The section of the Act on which the tort action is premised makes it unlawful for any employer \u201cto discharge *** or to refuse to rehire or recall to active service\u201d an employee for exercising his rights under the Act. Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h).\nFocusing on the language of this section, defendants initially challenge the jury\u2019s verdict on the ground that the elements of the tort are lacking. Illinois courts have construed section 8.4(h) to include the following elements: (1) plaintiff\u2019s status as an employee before injury; (2) plaintiff\u2019s exercise of a right granted by the Act; and (3) a discharge of plaintiff that is causally related to his filing a claim under the Act. Slover v. Brown (1986), 140 Ill. App. 3d 618, 620, 488 N.E.2d 1103,1105.\nDefendants contend that the testimony of three expert witnesses at trial demonstrates that plaintiff was not an employee before the injury as a matter of law. The experts\u2019 testimony, however, only establishes that the roofing industry\u2019s general practice as to its seasonal employment terminations is to pay the employee in full and inform him that there is no more work available, a practice which Pine himself testified he followed on the day of plaintiff\u2019s injury. Plaintiff, although precluded from giving his opinion testimony as to what constitutes a termination in the roofing industry, testified to factual developments in his particular case from which the jury could have found that plaintiff\u2019s employment was not terminated. Plaintiff testified that defendant did not tell him his employment was terminated on the day of the injury, only that \u201cwork is slowing down so it ain\u2019t looking good now.\u201d Furthermore, plaintiff\u2019s testimony that he did not know he was discharged on the date of his injury is buttressed by his 30 years of employment experience in the roofing industry.\nBased upon the above evidence, plaintiff\u2019s employment status before the injury was a factual matter to be determined by the jury. Viewing the evidence most favorably to plaintiff under the standard for granting a judgment notwithstanding the verdict (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), the record does not establish that a jury could never find that plaintiff was an employee at the time of the injury. Nor are we able to say that the jury\u2019s verdict was against the manifest weight of the evidence so as to require a new trial. Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 476 N.E.2d 427.\nDefendants\u2019 assertion that the jury verdict against plaintiff on the \u201cdischarge\u201d count indicates that the jury found plaintiff was not an employee at the time of injury does not change this conclusion. The verdicts on the two counts are not necessarily inconsistent. The jury could have found that plaintiff\u2019s employment was terminated due to the seasonal slowdown sometime after the date of the injury and, therefore, the factual situation fell within the scope of the \u201crefuse to rehire or recall\u201d clause.\nDefendants also argue that the element of causality is absent from plaintiff\u2019s retaliatory discharge claim. The causality element requires more than a discharge in connection with a filing of a claim. Causality will not exist where the basis for the discharge is valid and nonpretextual. (Slover v. Brown (1986), 140 Ill. App. 3d 618, 621, 488 N.E.2d 1103, 1105.) An employer who discharges or fails to rehire an employee because the employee filed a fraudulent claim under the Act, for example, would have a valid nonpretextual basis for the discharge that would negate the causality element.\nThe instant case does not present such a situation. While defendants denied plaintiff\u2019s evidence, they did not present any evidence indicating a valid, nonpretextual reason for not rehiring plaintiff. Plaintiff, on the other hand, presented evidence that Pine stated, \u201cNo roofer that sues me is coming back.\u201d Further evidence introduced by plaintiff disclosed that at the close of the seasonal slowdown, defendants employed 10 roofers in April, up to 14 roofers in June, but did not recall plaintiff even though they had never complained about his work performance and had made him a foreman on one of their previous contracts\nDefendants\u2019 related contention that the trial court improperly struck their affirmative defense that they had no duty to rehire plaintiff is without merit. The test to withstand a motion to strike an affirmative defense, as set forth in Cunningham v. City of Sullivan (1958), 15 Ill. App. 2d 561, 147 N.E.2d 200, requires that the defense give color to the opposing party\u2019s claim and then assert a new matter that would defeat the apparent right. Defendants\u2019 affirmative defense in this case would not defeat plaintiff\u2019s claim. The fact that defendant had no duty to rehire is irrelevant in retaliatory discharge or refusal to rehire or recall cases involving at-will employees since the material issue is not whether the employer has an obligation to retain a worker, but why the employer discharged the employee. The trial court, therefore, properly denied defendants\u2019 affirmative defense.\nDefendants\u2019 final challenge to plaintiff\u2019s evidence relating to the elements of the tort is that the \u201crefuse to rehire or recall\u201d clause under the Act does not apply to industries that seasonally employ and terminate at-will employees. Defendants argue that in addition to the elements for retaliatory discharge set out above, a prerequisite to the \u201crehire or recall\u201d clause is that plaintiff be an employee at the time of the failure to rehire or recall. \u201cRefusal to rehire,\u201d defendants assert, does not refer to an employer\u2019s failure to hire an individual a second time after a previous discharge; rather, it refers to a \u201ccontinuing employee\u201d who is on disability leave or quits because he cannot work and who is then not permitted to return because he filed a claim. Plaintiff conversely argues that such language implies that the worker has been discharged previously and is not allowed to return. Plaintiff reasons that \u201crehire\u201d means to hire anew; an employer cannot rehire one that is already an employee.\nWe hold that the \u201crefuse to rehire or recall\u201d clause applies to industries that seasonally terminate and rehire or recall employees. Not only does the wording of the Act support this interpretation, but the policies of the retaliatory discharge action would also be furthered by such an interpretation. The supreme court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, in granting an additional civil remedy to uphold the policies of the Workers\u2019 Compensation Act, construed the purpose of the Act to prevent employees from having to choose between their jobs and seeking their rights under the Act. A requirement that a worker must be an employee at the time of \u201crecall\u201d would force employees in industries that seasonally hire and discharge employees to choose between their jobs and their statutory rights. Without the protection given by the Kelsay court, plaintiff would be forced to make this difficult choice.\nDefendants also assert as error the trial court\u2019s giving of jury instructions on count II without including the requisites urged by defendants above, namely, the affirmative defense of no duty to hire and the requirements that plaintiff be an employee at the time he is injured, filed a workers\u2019 compensation claim, and is denied reemployment. As already indicated, the affirmative defense and the latter two alleged requisites are not necessary for a retaliatory discharge action based upon the refusal to rehire or recall clause. In addition, defendants have waived objection on appeal to any other improper instruction relating to the elements of count II by failing to object at trial or tender to the court a proper instruction. Mackey v. Daddio (1985), 139 Ill. App. 3d 604, 487 N.E.2d 1167; Fink v. Woodard (1984), 122 Ill. App. 3d 911, 462 N.E.2d 13.\nDefendants next contend that defendant Pine cannot be held personally liable for the tortious acts of the corporation. While it is clear as a general rule of corporate law that an officer or director of a corporation is insulated from the corporation\u2019s liabilities, it is also well recognized under agency law that an officer-agent of a corporate principal is liable for his own tortious acts. Illinois courts have extended this basic precept in holding corporate officers liable for torts of the corporation in which the officers have personally participated. (National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 418 N.E.2d 1114 (corporate officer liable for corporation\u2019s conversion); McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369 (corporate officer liable for corporation\u2019s negligence); Miller v. Simon (1968), 100 Ill. App. 2d 6, 241 N.E.2d 697 (corporate officer liable for trespass to realty).) The tortious acts at issue in the above cases, however, are distinguishable from the instant case. The acts committed in these cases would be tortious as to any person who engaged in conduct of that type. The instant tort of retaliatory discharge arising from a violation of the Workers\u2019 Compensation Act, on the other hand, may be committed only by persons serving in the specific capacity of an \u201cemployer.\u201d (Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h).) The record here clearly indicates that defendant Pine Roofing Company was plaintiff\u2019s employer and defendant Martin Pine acted solely in the capacity of officer of the corporation. Even though defendant Martin Pine personally participated in the tort, only defendant Pine Roofing, as plaintiff\u2019s employer, may be held personally liable for the tort. Nevertheless, defendants, by not raising this issue in their post-trial motion, have waived any objection on appeal to defendant Martin Pine\u2019s personal liability. 73 Ill. 2d R. 366(b)(2)(iii); Zvonarits v. Vollen (1978), 64 Ill. App. 3d 958, 382 N.E.2d 18.\nDefendants raise a number of objections to the compensatory and punitive damages awarded by the jury in this case. As to the punitive damage award, defendants initially claim that the trial court erred in giving to the jury an instruction on that subject without including wilful and wanton language. Defendants, though, have waived any objection to the instruction by not objecting at trial or tendering to the trial court an instruction that defendants deemed appropriate. Mackey v. Daddio (1985), 139 Ill. App. 3d 604, 487 N.E.2d 1167.\nNotwithstanding defendants\u2019 waiver, the trial court did not err in submitting the instruction to the jury. The question of whether a particular case justifies the imposition of punitive damages is one of law for the trial court, while the measurement of punitive damages is a jury question. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359; Knierim v. Izzo (1961), 22 Ill. 2d 73, 87, 174 N.E.2d 157, 165.) Furthermore, where a plaintiff\u2019s factual allegations are sufficient to state a legally cognizable claim for punitive damages, the trial court has discretion to submit the issue to the jury, and the court\u2019s determination will not be disturbed absent an abuse of that discretion. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 580, 491 N.E.2d 464, 483; Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 937, 419 N.E.2d 578, 596.) Here, plaintiff introduced evidence, and the jury necessarily found, that defendants acted wilfully in failing to rehire plaintiff. The trial court, therefore, did not abuse its discretion in finding a legally cognizable claim for punitive damages and submitting the matter to the jury.\nDefendants next allege that the punitive damage award is excessive, contrary to law, and unsupported by the evidence. Punitive damages are appropriately awarded for torts committed with fraud, actual malice, deliberate violence, or when a defendant acts wilfully or wantonly. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) The Illinois Supreme Court has recognized that retaliatory discharge based upon filing a workers\u2019 compensation claim is an appropriate tort for a punitive damage award because it deters an employer from discharging an employee exercising his statutory rights. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.) In reviewing the appropriateness of the amount of punitive damages awarded in this case, we are guided by the principle that courts will not alter the award unless it is clearly excessive. (Tomlinson v. Chapman (1960), 24 Ill. App. 2d 192, 164 N.E.2d 240; Smith v. Seiber (1984), 127 Ill. App. 3d 950, 469 N.E.2d 231.) We are further assisted in our evaluation of the award by three factors the court in Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 712, 450 N.E.2d 1199, 1207, set out for a reviewing court to consider in making its determination: (1) the nature and enormity of the wrong; (2) the potential liability of defendants for multiple claims by numerous persons affected by the wrongful conduct; and (3) the financial status of the defendants.\nThe first two Hazelwood factors clearly suggest the award of $28,639 is not excessive in this case. The seriousness of the wrong is reflected in the legislature\u2019s enactment of section 8.4(h) of the Workers\u2019 Compensation Act, and the supreme court\u2019s approval of a civil tort action based upon a violation of the Act. The potential for multiple liability from other claims is nonexistent in this case, as long as defendants do not retaliate in the future.\nAs to defendants\u2019 financial status, the third Hazelwood factor, defendants contend that the financial statements submitted to the jury without expert testimony were insufficient for the jury to determine defendants\u2019 financial position. In effect, defendants claim that plaintiff had a duty to present evidence as to defendants\u2019 financial condition. Plaintiff correctly points out that Hazelwood gives direction to a court on review, not a jury. Plaintiff has no duty to present evidence as to defendants\u2019 financial status to recover punitive damages. (Wilson v. Colston (1983), 120 Ill. App. 3d 150, 153, 457 N.E.2d 1042, 1044.) Furthermore, defendants could have presented evidence in rebuttal to explain their financial position. Warren v. LeMay (1986), 142 Ill. App. 3d 550, 581, 491 N.E.2d 464, 484.\nDefendants also claim that the $28,639 award is excessive because it represents 37% of Pine Roofing\u2019s net worth based upon Pine Roofing\u2019s 1983 financial statements. Defendants have not submitted to this court sufficient information on defendants\u2019 current financial status to make the determination. Accordingly, considering the three factors outlined in Hazelwood, the punitive damages awarded by the jury are not excessive.\nTurning to the compensatory damage award, defendants re-, quest a remittitur of the $9,410.25 award because it is excessive and against the manifest weight of the evidence. Plaintiff and defendants disagree over the correct formula for determining lost wages, the basis of the compensatory award in this case. Defendants cite Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, for measuring lost wages between the time plaintiff was wrongfully discharged and the time plaintiff found a new job. Plaintiff relies on Hollis v. R. Latoria Construction, Inc. (1983), 122 Ill. App. 3d 290, 296, 461 N.E.2d 439, 443, for his assertion that the correct measure of his lost wages is determined by deducting the number of hours plaintiff worked in 1983 from the average number of hours plaintiff worked in a five-year period, and multiplying the result by $16.50, the hourly pay scale for a journeyman roofer in 1983.\nWe need not decide the appropriate measure of damages to be applied in the factual situation presented here since we find that even under the formulation espoused by defendants, the award is not excessive. Plaintiffs testimony indicated that after March 1983, plaintiff did not have steady employment until October 1983. Kelsay calculated damages between the time the plaintiff was discharged and the time the plaintiff found a permanent job. Kelsay does not dictate, as defendants suggest, that the period for calculating damages ends when plaintiff worked on a job that lasted only six or seven days in June. Even assuming defendants are correct in their assertion that they are not responsible for damages in March 1983 because of the unavailability of work, based upon an hourly rate of $16.50 at 40 hours per week over the remaining six months until plaintiff obtained permanent employment, the computation would be well above the jury\u2019s award of $9,410.24. Thus, the jury\u2019s compensatory award is neither excessive nor against the manifest weight of the evidence.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL, P.J., and O\u2019CONNOR, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Nathaniel I. Grey, P.C., of Chicago (Richard H. Victor, of counsel), for appellants.", "Walter M. Ketchum, Ltd., of Chicago (Nancy M. Rundin, of counsel), for appellee." ], "corrections": "", "head_matter": "BERNARD MOTSCH, Plaintiff-Appellee and Cross-Appellant, v. PINE ROOFING COMPANY, INC., et al., Defendants-Appellants and Cross-Appellees (Tracy Motsch, Plaintiff).\nFirst District (1st Division)\nNo. 87-1781\nOpinion filed September 12, 1988.\nRehearing denied January 25, 1989.\nModified opinion filed February 6, 1989.\nNathaniel I. Grey, P.C., of Chicago (Richard H. Victor, of counsel), for appellants.\nWalter M. Ketchum, Ltd., of Chicago (Nancy M. Rundin, of counsel), for appellee." }, "file_name": "0169-01", "first_page_order": 191, "last_page_order": 201 }