{ "id": 2526674, "name": "JONATHON E. CASHMORE, Plaintiff-Appellant, v. BUILDERS SQUARE, INC., sometimes known as Builders Square, et al., Defendants-Appellees", "name_abbreviation": "Cashmore v. Builders Square, Inc.", "decision_date": "1991-04-05", "docket_number": "No. 2\u201491\u20140123", "first_page": "13", "last_page": "20", "citations": [ { "type": "official", "cite": "211 Ill. App. 3d 13" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "556 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 686", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2473522 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0686-01" ] }, { "cite": "509 N.E.2d 1005", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1008" } ], "opinion_index": 0 }, { "cite": "117 Ill. 2d 38", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545084 ], "weight": 2, "pin_cites": [ { "page": "44-45" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0038-01" ] }, { "cite": "548 N.E.2d 1033", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "132 Ill. 2d 468", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589261 ], "year": 1987, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0468-01" ] }, { "cite": "538 N.E.2d 1366", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 206", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2629965 ], "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0206-01" ] }, { "cite": "544 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2692938 ], "year": 1989, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0792-01" ] }, { "cite": "565 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 267", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2555698 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0267-01" ] }, { "cite": "408 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "81 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480680 ], "weight": 2, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0229-01" ] }, { "cite": "442 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "92 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3096847 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0467-01" ] } ], "analysis": { "cardinality": 566, "char_count": 12108, "ocr_confidence": 0.74, "pagerank": { "raw": 1.0335614820218954e-07, "percentile": 0.5488532343005326 }, "sha256": "0f18b16d055e72e3d7c7d37d4e9f51b41a0d45adb046f5db8f4ddaa9af0417b1", "simhash": "1:3d37459f87ead6bf", "word_count": 1915 }, "last_updated": "2023-07-14T14:56:54.383547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JONATHON E. CASHMORE, Plaintiff-Appellant, v. BUILDERS SQUARE, INC., sometimes known as Builders Square, et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE REINHARD\ndelivered the opinion of the court:\nPlaintiff, Jonathon Cashmore, appeals from the circuit court of Lake County\u2019s dismissal of his complaint against defendants, Builders Square, Inc., K mart, Mark Jorgenson and Robert Adams (hereinafter collectively referred to as Builders Square), seeking compensation for an injury sustained when Cashmore was an employee of Builders Square. The circuit court ruled, pursuant to section 2\u2014619(a)(9) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014619(a)(9)), that Cashmore\u2019s common-law action could not be maintained because he had recovered for his injury pursuant to the Workers\u2019 Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.).\nAt issue on appeal is: (1) whether Builders Square should be judicially estopped from arguing that Cashmore\u2019s injury is covered under the Act when it took the opposite position in the proceeding on the workers\u2019 compensation claim; and (2) whether the circuit court properly dismissed Cashmore\u2019s complaint on the basis that he had recovered under the Act.\nCashmore\u2019s injury occurred on September 26, 1986, at the Builders Square store in Waukegan, Illinois. Cashmore was riding a forklift down from the top of a high shelf unit when two of his fingers were partially amputated. In his complaint filed September 21, 1988, Cashmore alleged that his injury was proximately caused by Builders Square\u2019s various acts of negligence.\nIn his November 4, 1988, response to Builders Square\u2019s request to admit facts and genuineness of documents, Cashmore admitted that he had filed a worker\u2019s compensation claim with the Illinois Industrial Commission (the Commission) to recover for the same injury forming the basis of the instant suit. Cashmore admitted that Builders Square had paid his medical bills and had also paid him an additional $3,274.28. Cashmore did not admit that these payments were made pursuant to Builders Square\u2019s obligations under the Workers\u2019 Compensation Act. Cashmore admitted the authenticity of the memorandum of decision prepared by the arbitrator in Cashmore\u2019s case before the Commission.\nThe memorandum recited the arbitrator\u2019s decision that Cashmore was entitled to receive $120 per week for a period of 274h weeks in compensation for his temporary total incapacity. The memorandum further noted that Cashmore had been paid the sum of $3,274.28 \u201con account of this injury.\u201d The handwritten addendum to the memorandum of decision states, in pertinent part, as follows:\n\u201cClearly the aforesaid accident occurred during the course of [Cashmore\u2019s] employment by [Builders Square], but just as clearly, [Cashmore] failed to prove that this accident arose out of that employment. Claim for compensation is denied.\u201d\nBased on Cashmore\u2019s admissions, Builders Square filed a motion pursuant to section 2\u2014619(a)(9) of the Code seeking dismissal of Cashmore\u2019s common-law action based on benefits he received \u201cas a result of\u201d his workers\u2019 compensation claim. Citing Rhodes v. Industrial Comm\u2019n (1982), 92 Ill. 2d 467, 442 N.E.2d 509, and Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198, Builders Square argued that Cashmore\u2019s recovery of benefits pursuant to the Workers\u2019 Compensation Act precluded him from maintaining a common-law action to recover for the same injury.\nIn response to the motion to dismiss, Cashmore noted that the decision of the Commission arbitrator was not res judicata because both parties had appealed from it and no final decision had yet been rendered by the Commission. Included with Cashmore\u2019s response were copies of the parties\u2019 petitions for Commission review of the arbitrator\u2019s decision. Cashmore also maintained that any benefits he had received from Builders Square were not pursuant to any agreement to settle his rights under the Act. Such payments, Cashmore contended, do not constitute an admission of coverage under the Act. See Ill. Rev. Stat. 1989, ch. 48, pars. 138.8(a)(3), (b)(7).\nThe circuit court denied Builders Square\u2019s section 2 \u2014 619(a)(9) motion to dismiss Cashmore\u2019s complaint. The record contains no report of proceedings corresponding to this order.\nOn February 14, 1989, Cashmore filed a motion pursuant to section 2\u2014611 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014611) seeking sanctions against Builders Square for allegedly taking inconsistent positions in the circuit court, where it argued that the injury was compensable under the Act, and before the Commission, where it argued the opposite position.\nBuilders Square filed its response and affirmative defense to Cashmore\u2019s complaint on March 28, 1989. In addition to denying Cashmore\u2019s allegations of negligence, Builders Square contended that, because Cashmore had \u201creceived benefits paid under the Worker\u2019s [sic] Compensation Act,\u201d Cashmore could not recover in his common-law action. On October 20, 1989, Cashmore filed a motion to strike Builders Square\u2019s affirmative defense. Cashmore contended that Builders Square should be estopped from arguing that Cashmore\u2019s exclusive remedy was under the Workers\u2019 Compensation Act when it had argued before the Commission that the Act did not apply.\nOn December 8, 1989, Builders Square filed a second motion to dismiss Cashmore\u2019s complaint pursuant to section 2 \u2014 619(a)(9) of the Code. Acknowledging that a virtually identical motion had been denied on December 22, 1988, Builders Square noted that, since that time, Builders Square had voluntarily dismissed its appeal of the arbitrator\u2019s decision.\nOn January 30, 1990, the circuit court denied Cashmore\u2019s motion to strike the affirmative defense and granted Builders Square\u2019s motion to dismiss. The complaint was dismissed with prejudice \u201cdue to the [exclusivity provision\u201d of the Act. (See Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a).) Again, there is no report of proceedings in the record.\nAfter his motion for reconsideration of the order of dismissal was denied, Cashmore appealed to this court. We dismissed the appeal for want of jurisdiction because Cashmore\u2019s section 2\u2014611 motion had been left unresolved by the circuit court. (Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267, 565 N.E.2d 703.) The circuit court subsequently entered an order denying Cashmore\u2019s section 2\u2014 611 petition, and defendant has timely appealed.\nWe first examine Cashmore\u2019s contention that Builders Square should be judicially estopped from arguing that Cashmore\u2019s injury was covered under the Act when the exact opposite position was argued before the Commission. The doctrine of judicial estoppel, which precludes a party from adopting inconsistent positions in separate legal proceedings, is designed to promote the truth by preventing litigants from deliberately shifting positions to suit the exigencies of the moment. (Mijatov v. Graves (1989), 188 Ill. App. 3d 792, 796, 544 N.E.2d 809.) However, the doctrine only operates against a party who was successful in asserting the first position and received some benefit in the first proceeding. Galena Park Home v. Krughoff (1989), 183 Ill. App. 3d 206, 208, 538 N.E.2d 1366.\nHere, as we will discuss more fully below, the nature of the arbitrator\u2019s decision makes it unclear whether Builders Square\u2019s original position was successfully argued in the proceedings before the Commission. Accordingly, judicial estoppel does not apply here.\nCashmore\u2019s next argument is that the circuit court should not have dismissed his complaint when the Commission had not yet made a final determination of his eligibility for benefits under the Act. Section 2\u2014619(a)(9) of the Code provides for the dismissal of a plaintiff\u2019s complaint where it is barred by some affirmative matter avoiding the legal effect of or defeating the claim. Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014619(a)(9).\nHere, the affirmative matter presented by Builders Square was Cashmore\u2019s purported recovery for his injury pursuant to the Act. It is not clear, however, that Cashmore has or will recover benefits in his proceeding before the Commission. An employee\u2019s injury is not compensable under the Act unless it arises out of, and in the course of, the employment. (Paganelis v. Industrial Comm\u2019n (1989), 132 Ill. 2d 468, 481, 548 N.E.2d 1033.) The phrases, \u201cin the course of,\u201d and, \u201carising out of,\u201d are used conjunctively in the statute; both elements must be present at the time of the accidental injury in order to justify compensation. Orsini v. Industrial Comm\u2019n (1987), 117 Ill. 2d 38, 44-45, 509 N.E.2d 1005.\nIn the instant case, the arbitrator found that, while Cashmore proved that his injury occurred \u201cin the course of\u201d his employment, he \u201cfailed to prove that it arose out of that employment.\u201d This finding arguably indicates that Cashmore\u2019s injury would not be covered by the Act. (See Orsini, 117 Ill. 2d at 45, 509 N.E.2d at 1008.) However, the memorandum of the arbitrator\u2019s decision recites that Cashmore was entitled to receive $120 per week for 274/7 weeks for temporary total incapacity, indicating that Cashmore prevailed. Whether it was the result of the arbitrator\u2019s miscomprehension of the law or just a scrivener\u2019s error, the memorandum of decision appears to be internally inconsistent. The parties also disagree as to what was intended by the arbitrator\u2019s decision. Thus, it is impossible to determine on this record which party prevailed.\nThe record reflects, however, that Cashmore\u2019s appeal of the arbitrator\u2019s decision is pending. The timely filing of that appeal prevented the arbitrator\u2019s decision from becoming the decision of the Commission (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b)), and it is the Commission which must determine disputed questions under the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.18). The fact that Builders Square has withdrawn its appeal of the arbitrator\u2019s decision does not necessarily mean the Commission will find that Cashmore is covered by the Act. The Commission\u2019s review of the arbitrator\u2019s decision is not limited to exceptions stated in Cashmore\u2019s petition for review. Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b).\nThus, the proceedings before the Commission have not yet established whether Cashmore is entitled to compensation under the Act. Cashmore\u2019s eligibility for workers\u2019 compensation is not admitted by Builders Square merely because they paid his medical expenses (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(a)(3)) or other compensation (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b)(7)). Although Cashmore\u2019s common-law negligence action would be barred if he had received compensation pursuant to an agreement executed in lieu of a claim and approved by the Commission (see Collier, 81 Ill. 2d at 241, 408 N.E.2d at 204), no such settlement agreement is present here. In fact, Cashmore continues to press his claim before the Commission for compensation under the Act. Where, as here, an employee with a pending workers\u2019 compensation claim is uncertain of his ground for recovery, it is not improper to file a common-law action so as to toll the statute of limitations. Rhodes, 92 Ill. 2d at 471, 442 N.E.2d at 511.\nIn closing, we note that seeking dismissal of Cashmore\u2019s complaint is not Builders Square\u2019s only alternative to protect itself from exposure to duplicative claims. See Tumminaro v. Tumminaro (1990), 198 Ill. App. 3d 686, 556 N.E.2d 293 (discussing circuit court\u2019s authority to impose a stay under section 2\u2014619(a)(3) pending the outcome of administrative proceedings).\nAccordingly, we hold that the circuit court improperly dismissed Cashmore\u2019s complaint. The judgment of the circuit court of Lake County is, therefore, reversed, and the cause is remanded.\nReversed and remanded.\nDUNN and UNVERZAGT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE REINHARD" } ], "attorneys": [ "Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.", "Glen E. Amundsen and Judith A. Chapman, both of Querrey & Harrow, Ltd., of Waukegan, for appellee." ], "corrections": "", "head_matter": "JONATHON E. CASHMORE, Plaintiff-Appellant, v. BUILDERS SQUARE, INC., sometimes known as Builders Square, et al., Defendants-Appellees.\nSecond District\nNo. 2\u201491\u20140123\nOpinion filed April 5, 1991.\nRichard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.\nGlen E. Amundsen and Judith A. Chapman, both of Querrey & Harrow, Ltd., of Waukegan, for appellee." }, "file_name": "0013-01", "first_page_order": 35, "last_page_order": 42 }