{ "id": 8498037, "name": "GENE HANNAH, Plaintiff-Appellant, v. MIDWEST CENTER FOR DISABILITY EVALUATION, INC., et al., Defendants (Marshall Matz, Defendant-Appellee)", "name_abbreviation": "Hannah v. Midwest Center for Disability Evaluation, Inc.", "decision_date": "1989-03-21", "docket_number": "No. 1\u201487\u20143346", "first_page": "67", "last_page": "76", "citations": [ { "type": "official", "cite": "181 Ill. App. 3d 67" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "415 N.E.2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3151392 ], "pin_cites": [ { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0999-01" ] }, { "cite": "47 Va. L. Rev. 218", "category": "journals:journal", "reporter": "Va. L. Rev.", "year": 1961, "pin_cites": [ { "page": "221-22" } ], "opinion_index": 0 }, { "cite": "468 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 31", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564115 ], "weight": 2, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0031-01" ] }, { "cite": "371 N.E.2d 143", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 572", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3410016 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0572-01" ] }, { "cite": "427 N.E.2d 94", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "86 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469637 ], "year": 1977, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0188-01" ] }, { "cite": "515 N.E.2d 1047", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509317 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0391-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 1006, "char_count": 20796, "ocr_confidence": 0.718, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2050494063553512 }, "sha256": "0e280f608a52145904b0b2fb995f1d35bf26851a3ccc2581892d0146998b3504", "simhash": "1:38bb4ee74c618ed0", "word_count": 3249 }, "last_updated": "2023-07-14T20:30:31.344826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "EGAN, P.J., and BILANDIC, J., concur." ], "parties": [ "GENE HANNAH, Plaintiff-Appellant, v. MIDWEST CENTER FOR DISABILITY EVALUATION, INC., et al., Defendants (Marshall Matz, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nPlaintiff brought this action against defendants to recover damages for their allegedly misrepresenting to a claims adjustment firm the medical opinion of plaintiff\u2019s treating physician. The trial court granted defendant Marshall Matz\u2019 motion for summary judgment after determining that there was \u201cnot one shred of evidence presented to [him] in the file that indicatefd] that Matz had anything to do with these events.\u201d A motion for summary judgment brought against plaintiff by Cullen and Midwest was denied by the circuit court. On plaintiff\u2019s appeal, the issue is whether the court properly awarded summary judgment to Matz in light of his motion, the materials in support thereof, and the inferences reasonably to be drawn therefrom.\nHaving suffered a series of three injuries to his lower back, plaintiff sought workers\u2019 compensation benefits from his employer, Nehi Royal Crown Corporation (Nehi). Nehi was self-insured and utilized the services of the Martin Boyer Company to investigate and adjust plaintiff\u2019s claims; Robert Shapin was the Martin Boyer claims agent administering plaintiff\u2019s case.\nIn the course of his treatment by various physicians, plaintiff was hospitalized repeatedly and underwent surgery on his lower back twice. Shapin, as is permitted by Illinois law, had plaintiff examined twice by Matz, a neurosurgeon of Martin Boyer\u2019s choice, for evaluations as to disability. Matz first saw plaintiff on February 13, 1980, and reported his findings to Martin Boyer on his medical service corporation letterhead: M.I. Matz, M.D., and D.M. Shenker, M.D., S.C. Matz was not plaintiff\u2019s treating physician. Plaintiff was then under the care of Dr. W. Patrick Smyth, but on February 21, 1980, he came under the treatment of Dr. Dale Vachout, who thereafter remained his doctor for the entire period pertinent to this case.\nDuring the year 1980, plaintiff received rehabilitational counseling from a Mr. Pindelski of International Rehabilitation Associates (IRA), who, during the period of such counseling, helped plaintiff obtain a job as an inventory control person and bottle labeler. IRA\u2019s services were provided at the request of plaintiff\u2019s counsel, and Martin Boyer approved payment therefor; but IRA\u2019s efforts proved unsuccessful when plaintiff became incapable of performing the duties required of him in his new position.\nIn November 1980, plaintiff underwent a laminectomy performed by Dr. Hernando Torres, and after a period of post-operative recovery, plaintiff saw Matz for his second medical evaluation. Immediately following the examination, Matz reported his findings to Martin Boyer in a letter written on his medical service corporation letterhead \u2014 the same procedure that he followed after the first examination.\nIn February of 1981, Shapin referred plaintiff to the Midwest Center for Disability Evaluation, Inc. (Midwest), for rehabilitation services. Andrea Cullen was the specialist at Midwest assigned to handle plaintiff\u2019s rehabilitation program; Matz was the owner and incorporator of Midwest, which was not legally formed until December of 1980 and did not begin to do business until January 1,1981.\nOn March 19, 1981, plaintiff attempted to return to work at Nehi as a checker, a position that involved counting merchandise contained in trucks before they left Nehi\u2019s premises. However, he was physically unable to perform the tasks required by this job, as it demanded bending, climbing and twisting, so he left work that day and saw or spoke to Dr. Vachout on March 20, 1981.\nOn March 20 or 21, 1981, Cullen had a telephone conversation with Shapin, during which she reported that she had spoken with Dr. Vachout, who informed her that plaintiff had a psychological motivation not to return to work \u2014 essentially \u201cpain for gain,\u201d as she characterized it. She further reported that Dr. Vachout held the opinion that continued vocational rehabilitation was useless, that plaintiff would not return to work until his case was settled, and that plaintiff was not a \u201cpermanent total.\u201d She wrote a report, dated March 23, 1981, to Shapin which included the statements allegedly made by Dr. Va-chout. As a result of Cullen\u2019s report, Shapin told her to close the file and cease rehabilitation. Dr. Vachout denied making the statements.\nPlaintiff then filed suit against Cullen, Midwest, and Matz, alleging in essence that their false reporting of Dr. Vachout\u2019s statements resulted in the wrongful termination of plaintiff\u2019s workers\u2019 compensation benefits and in his loss of future opportunities for employment. Neither of the two counts of the complaint alleges that Matz is liable as Cullen\u2019s employer under a respondeat superior theory, but that Matz himself had either negligently misrepresented Dr. Vachout\u2019s opinion to Martin Boyer, or had willfully participated in or authorized Cullen\u2019s false report. Matz filed an answer denying all allegations of wrongdoing. The issue on appeal, therefore, is whether there was sufficient evidence to raise a genuine issue of material fact concerning Matz\u2019 personal involvement in the alleged misconduct.\nMatz\u2019 motion for summary judgment alleges that he was not a participant or otherwise involved in Cullen\u2019s false reporting of Dr. Va-chout\u2019s opinion. Cullen denied ever speaking with Matz regarding plaintiff. Accompanying his motion was Matz\u2019 affidavit stating that Midwest, a corporation of which he was founder and president, provided rehabilitation services and counseling and employed Cullen as a rehabilitation consultant; that a separate medical service corporation, M.I. Matz, M.D., and D.M. Shenker, M.D., S.C., of which Matz was an officer and employee, provided neurosurgical and neurological treatment; that the physicians at the medical service corporation treated their own patients and evaluated injured persons, such as the plaintiff, at an employer\u2019s or its representatives\u2019 request, while no such services were available at Midwest; that his medical service corporation was located in a separate office than that of Midwest; that he had no keys to Midwest; that he did not refer any patients to Midwest; that Cullen maintained Midwest\u2019s office records and its telephone service; that Cullen made all rehabilitation decisions on her own, and he had never reviewed any of her rehabilitation reports; that he had no right to control the performance of Cullen\u2019s duties as a rehabilitation consultant; that he did not participate in any decisions relating to rehabilitation services provided to the plaintiff and that he had never provided plaintiff with any rehabilitation services; and, finally, that his two examinations of the plaintiff were performed not for rehabilitation purposes but to evaluate the plaintiffs neurological condition pursuant to the provisions of the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.).\nIt also appears from the other materials filed in the summary judgment proceeding that Matz as sole shareholder was the only person who stood to profit from Midwest\u2019s operations and that he held all of its operating authority, including the right to hire and fire employees; that as treasurer of the corporation, Matz maintained the bank account for Midwest at the North Bank in Chicago, and that he held the checkbook and signed all checks; that Midwest printed a promotional brochure entitled, \u201cBack To Work,\u201d which stated that Midwest\u2019s rehabilitation services were \u201ctotally unique among our competition\u201d because \u201cwe combine vocational and medical rehabilitation,\u201d and that \u201cwe\u2019re staffed to see, evaluate and treat if necessary\u201d; and that the brochure spoke of the \u201cM.C.D.E. medical staff\u201d as well as \u201cconsulting doctors.\u201d\nIn addition, Midwest\u2019s stationery used for Cullen\u2019s report of March 23, 1981, lists Marshall I. Matz, M.D., in the section which identifies employees of the company. The \u201cConsulting Staff\u201d is listed below the employee section, but does not include Matz\u2019 name. Both Matz and Cullen stated in their depositions that Matz occasionally would participate in examining and evaluating Midwest clients that Cullen referred to him, and that although Matz examined plaintiff on February 18, 1981, at Shapin\u2019s request, the examination was not connected in any way with Midwest\u2019s rehabilitation services. Matz asserted that he was not aware of the circumstances under which plaintiff was referred to Midwest; Cullen stated that Shapin referred plaintiff to Midwest through a telephone conversation and, as already noted, that she did not speak with Matz regarding plaintiff. In some referral situations, Martin Boyer would send Cullen or Midwest a referral sheet, in which Martin Boyer \u201ccould\u201d request particular services, such as job placement; however, Martin Boyer did not send a referral sheet for plaintiff.\nPlaintiff charges that Matz was personally involved in the rehabilitation program administered by his solely owned rehabilitation service company, Midwest, contending that when one considers \u201cthe small size of Midwest,\u201d and \u201cMatz\u2019s total control over Cullen,\u201d especially \u201cin the absence of a credible denial by both of them, a jury could well find, based on the factual circumstances, that Matz necessarily had to know and approve of Cullen\u2019s misconduct in falsely reporting Dr. Va-chout\u2019s opinion to Shapin/Martin Boyer.\u201d Plaintiff further maintains that the trial judge \u201cnarrowly focused\u201d his granting of Matz\u2019 motion for summary judgment \u201con whether there was direct evidence showing that Matz participated in the authorship of the false reports of March 20 or 23, 1981,\u201d made by Cullen; thus, he was \u201cdeprived of the reasonable inferences which a jury could draw from the totality of the circumstances.\u201d\nOnly the existence of a genuine issue of material fact will preclude the granting of summary judgment. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) The trial court must construe the motion, pleadings and supporting materials strictly against the moving party and liberally in favor of the opponent. A party moving for a summary judgment must affirmatively show a clear legal right, free from any doubt. If any facts upon which reasonable persons may disagree are identified, or if inferences which may be reasonably drawn from those facts lead to different conclusions, the court must deny the motion and direct that the resolution of those facts and inferences be made at trial. Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 515 N.E.2d 1047.\nPlaintiff asserts that there are several questions of fact raised by the \u201cconflicting\u201d testimony of Matz and Cullen and the documentary evidence verified by the affidavit of plaintiff\u2019s attorney, Kenneth S. Lewis. Plaintiff contends that although Matz claimed in his motion for summary judgment that he was in no way involved in the rehabilitation services provided to him by Midwest, the notes taken by Ed Mi-kel, a paralegal employed by Lewis, of a February 19, 1981, telephone conversation he had with Cullen demonstrate that Matz told her that plaintiff needed rehabilitation and that Matz would suggest it in his report. The suggestion does not appear in Matz\u2019 report.\nPlaintiff raises these other instances of alleged inconsistencies based upon some of the interactions between Cullen, Matz and Sha-pin: first, plaintiff refers to Cullen\u2019s testimony that she never talked to Matz concerning Hannah, which he brands as plainly false. Plaintiff alleges that Matz did not deny that he discussed plaintiff\u2019s rehabilitation program with Cullen, but claims only that he could not recall one way or the other. Therefore, plaintiff contends that a genuine issue of material fact exists concerning the extent to which Matz did discuss plaintiff\u2019s rehabilitation program with Cullen.\nSecond, plaintiff insists that a substantial question of fact arises as a result of the method by which his February 18, 1981, examination by Matz was arranged, charging that the absence of a referral sheet from Martin Boyer was out of the ordinary. Plaintiff also suggests that evidence of the absence of a referral sheet in combination with Cullen\u2019s lack of recollection as to why plaintiff was referred to Midwest could cause a jury to conclude that the arrangements of his rehabilitation program occurred in discussions between Matz, Shapin and Cullen at a date prior to Matz\u2019 examination of plaintiff on February 18,1981.\nThird, pointing to the Midwest \u201cBack To Work\u201d brochure, plaintiff indicates that it states that the evaluation process begins with a medical evaluation by the \u201cprimary physician or by one of our medical staff.\u201d Plaintiff finds it odd that Dr. Vachout, as plaintiff\u2019s primary physician, was not asked to perform an evaluation of the plaintiff. He further contends that it may be inferred from Mikel\u2019s notes of February 19, 1981, that Matz immediately thereafter called Cullen and suggested rehabilitation for plaintiff. Plaintiff adds that Matz was identified on the letterhead of Midwest in a section which identifies employees of the company, as opposed to consultants, arguing therefrom that a jury could find it more probably true than not that Matz was chosen as the evaluating physician at some time before February 6, 1981, that Cullen knew of this, and that Matz\u2019 evaluation on February 18, 1981, was intended to refute his providing rehabilitation to plaintiff.\nFourth, plaintiff alleges that \u201cMatz\u2019s inability to recall pertinent details of plaintiff\u2019s involvement with Midwest appears conveniently motivated by his self-serving desire to divorce himself from any connection with the plaintiff.\u201d\nPlaintiff entreats this court to believe that these alleged inconsistencies would allow a jury to draw a reasonable inference that Matz was involved in the making of Cullen\u2019s false report and that such an inference is the only rational explanation of Cullen\u2019s misconduct in fabricating Dr. Vachout\u2019s opinion.\nPlaintiff further exhorts us that the determination of the extent of Matz\u2019 involvement in plaintiff\u2019s rehabilitation program, the likelihood of Matz\u2019 participation in wrongdoing from the time the initial program was instituted, and the likelihood that Cullen hardly acted alone are matters for resolution by a jury, stoutly insisting that a jury should be allowed to hear defendant\u2019s testimony and adjudge its credibility.\nThe parties are in agreement that for an officer or director of a close corporation to be liable for the tortious act of a corporate employee, the officer or director must have actively participated in or personally authorized the specific act of the employee. (Main Bank v. Baker (1981), 86 Ill. 2d 188, 204, 427 N.E.2d 94; Fure v. Sherman Hospital (1977), 55 Ill. App. 3d 572, 371 N.E.2d 143.) Matz emphasizes that the record unequivocally establishes that he neither actively participated in nor personally authorized Cullen\u2019s report; and, noting that status, association, speculation, and assumption do not and cannot make a corporate officer liable for the wrongful acts of a corporate employee, the trial court properly entered summary judgment in his favor. We agree.\nMerely to set forth in this opinion, as we have, a compendium of the evidence and a liberal representation of plaintiff\u2019s arguments, all of which the trial court had before it in ruling on Matz\u2019 motion for summary judgment, is to prompt the suggestion that, after making due allowance for all reasonably possible inferences, mere speculation cannot be permitted to perform duty for probative facts. As the court held in Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422:\n\u201cWhere from the proven facts the nonexistence of the fact to be inferred appears to be just as probable as its existence (or more probable than its existence), then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be allowed to draw it.\u201d (Consolino, 127 Ill. App. 3d at 34, quoting James, Sufficiency of the Evidence & Jury-Control Devices Available before Verdict, 47 Va. L. Rev. 218, 221-22 (1961).)\nHere, the record is barren of any evidence as to why Cullen falsely represented Dr. Vachout\u2019s opinion to Shapin, nor is there anything from which it can reasonably be inferred that Matz participated in or authorized the preparation or transmittal of the disputed report.\nThe record in this case consists of 686 pages and indicates that extensive, if not plenary, discovery was had byboth sides, including the taking of the depositions of Cullen, Matz, Shapin, Lewis and plaintiff, as well as the filing of voluminous exhibits and sworn answers to extensive interrogatories. From this profusion of materials, plaintiff has managed to submit to this court two briefs steeped in sheer speculation, suffused with gross suspicion and shrouded in a most unedifying host of incriminating accusations, as witness his lacing his arguments with such assertions as: \u201cthe absence of a credible denial by Matz and Cullen\u201d; \u201cCullen\u2019s testimony that she never talked to Dr. Matz about Gene Hannah is plainly false\u201d; \u201cCullen was caught in her own lie\u201d; \u201cA jury, using its experience in the ordinary affairs of life, could well find that some corrupt scheme was underway\u201d; \u201cIsn\u2019t plaintiff entitled to have defendants explain this strange arrangement to a jury?\u201d; \u201cThe circumstances of the two telephone conversations of February 20, 1981, also strongly infer [sic] an early pattern of false representations\u201d; \u201cDr. Matz\u2019s demonstrated lack of credulity on important factual questions\u201d; \u201cPlaintiff can show material misstatements under oath by Dr. Matz and Cullen\u201d; \u201cA Jury is not bound to accept the obviously untrue denials of Matz\u2019s involvement made by Cullen and Matz\u201d; \u201c[Matz] probably condoned or directed Cullen\u2019s wrongful conduct\u201d; and \u201cdefies credulity and ***, appears far fetched.\u201d (Emphasis added.)\nOpposition to a motion for summary judgment grounded on such bare assertions, unsupported by any probative facts or by any authority, provides the court with only the dramatis personae and the plot line for a novel of Byzantine intrigue, for it is clear that at most, since he has already deposed defendants as on cross-examination, plaintiff is only asserting his desire for a further opportunity to \u201cshake\u201d the sworn testimony they have already given. But he must point to specific facts, or to reasonable inferences from the facts, or to some particularized ground for the possible impeachment of defendants in order to prevent the entry of summary judgment against himself \u2014 mere incantatory invocations of \u201ccredibility,\u201d in light of the record in this case, do not suffice. Surely, plaintiff, as the burdened party, should not be permitted to avoid summary judgment and advance to trial under the facts in this case merely by suggesting that defendant\u2019s affidavits and sworn discovery testimony are false. Such a rule would make a mockery of the summary judgment procedure, for it would obviously increase delay and expense in the final disposition of litigation and would thus exacerbate the very problem the procedure was devised to solve.\nNor can Matz be held personally liable for the wrongdoing of one of Midwest\u2019s employees simply because his company is a small one. (See Gallagher v. Reconco Builders, Inc. (1980), 91 Ill. App. 3d 999, 1004, 415 N.E.2d 560.) Plaintiff cites no authority, nor do we find any, which authorizes our courts to impose liability under the facts developed in this case.\nWe hold that the trial court properly granted defendant Matz\u2019 motion for summary judgment. We find no evidence which even dimly suggests linking Matz with Cullen\u2019s false representation of Dr. Va-chout\u2019s opinion. Status, association, speculation, suspicion, accusations, surmise, conjecture and assumption do not and cannot make a corporate officer or director liable for the wrongful conduct of a corporate employee; much less do they permit our courts to submit allegations of his conduct to a jury accompanied by nothing in the way of proof thereof save the possibility that his denial may be disbelieved. Our courts do not exist for the purpose of affording litigants the opportunity to turn them into gaming dens.\nAccordingly, the trial court\u2019s award of summary judgment to defendant Matz is affirmed.\nAffirmed.\nEGAN, P.J., and BILANDIC, J., concur.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Drumke & Patterson, Ltd., of Chicago (Robert B. Patterson and Danielle M. Jaeschke, of counsel), for appellant.", "Joseph P. Switzer and Susan J. Flieder, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee." ], "corrections": "", "head_matter": "GENE HANNAH, Plaintiff-Appellant, v. MIDWEST CENTER FOR DISABILITY EVALUATION, INC., et al., Defendants (Marshall Matz, Defendant-Appellee).\nFirst District (2nd Division)\nNo. 1\u201487\u20143346\nOpinion filed March 21, 1989.\nDrumke & Patterson, Ltd., of Chicago (Robert B. Patterson and Danielle M. Jaeschke, of counsel), for appellant.\nJoseph P. Switzer and Susan J. Flieder, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee." }, "file_name": "0067-01", "first_page_order": 89, "last_page_order": 98 }