{ "id": 351007, "name": "WAUSAU GENERAL INSURANCE COMPANY, Plaintiff-Appellee, v. KIM'S TRUCKING, INC., Defendant-Appellant", "name_abbreviation": "Wausau General Insurance v. Kim's Trucking, Inc.", "decision_date": "1997-06-20", "docket_number": "No. 1\u201496\u20142070", "first_page": "201", "last_page": "207", "citations": [ { "type": "official", "cite": "289 Ill. App. 3d 201" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "534 N.E.2d 1040", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1043" } ], "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607822 ], "year": 1989, "pin_cites": [ { "page": "713-14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0710-01" ] }, { "cite": "608 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5136993 ], "year": 1992, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0820-01" ] }, { "cite": "113 N.E. 976", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1916, "pin_cites": [ { "page": "977" }, { "page": "978", "parenthetical": "referring to provisions of the 1913 Workmen's Compensation Act" } ], "opinion_index": 0 }, { "cite": "274 Ill. 498", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2408918 ], "weight": 3, "year": 1916, "pin_cites": [ { "page": "500" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill/274/0498-01" ] }, { "cite": "674 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295640 ], "year": 1996, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0520-01" ] } ], "analysis": { "cardinality": 572, "char_count": 13437, "ocr_confidence": 0.769, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.2955324808512002 }, "sha256": "c36fec22d60354422e5559b8baf0f8c6dc527de6a6619243e46c8be83c5fc332", "simhash": "1:b7e305efe4f8171e", "word_count": 2100 }, "last_updated": "2023-07-14T21:29:08.370768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WAUSAU GENERAL INSURANCE COMPANY, Plaintiff-Appellee, v. KIM\u2019S TRUCKING, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nDefendant, Kim\u2019s Trucking, Inc. (Kim\u2019s), appeals from the trial court\u2019s order granting summary judgment in favor of plaintiff, Wau-sau General Insurance Company (Wausau), and denying Kim\u2019s cross-motion for summary judgment. Wausau sued Kim\u2019s to collect premiums allegedly due under two workers\u2019 compensation insurance policies issued to Kim\u2019s. Wausau successfully argued to the trial court that the insurance policies required Kim\u2019s to pay premiums for its own employees as well as for outside truck haulers hired by Kim\u2019s. On appeal, Kim\u2019s asserts that it is not liable for the premiums because the haulers were independent contractors. For the following reasons, we affirm.\nKim\u2019s Trucking, Inc., is an Illinois corporation. Kimberly Keyl-Bulmann is the president and sole officer. Kim\u2019s is in the business of \"road construction trucking,\u201d that is \"road construction which revolves around the hauling of asphalt, broken asphalt, excavated materials, sand and stone.\u201d According to the deposition testimony of Keyl-Bulmann, Kim\u2019s hauls construction materials and is not involved in the loading or unloading of those materials. When Kim\u2019s has more work than its own employees can handle, it will hire outside haulers on a job-specific basis.\nIn April 1991, Kim\u2019s obtained a workers\u2019 compensation and employer liability insurance policy from Wausau General Insurance Company, a Wisconsin corporation. The policy was to insure all employees and drivers for an estimated annual premium of $6,262. The policy period was from April 1991 to April 1992 (1991-92 policy year). Kim\u2019s obtained a second policy in April 1992 to run from April 1992 to April 1993 (1992-93 policy year). During the 1991-92 policy year, Kim\u2019s retained three employees and contracted out for 13 additional haulers on an as-needed basis. During the 1992-93 policy year, Kim\u2019s retained three employees and contracted out for two additional outside haulers. During both policy years, Kim\u2019s paid the premiums for its retained employees.\nNevertheless, Wausau claimed that, under the terms of the insurance policies, Wausau was also entitled to premiums for the outside haulers unless Kim\u2019s could provide proof that they were insured elsewhere. Kim\u2019s produced certificates of insurance for a few of the outside haulers, but argued that the remaining entities were independent contractors, and, therefore, Kim\u2019s was not liable for their workers\u2019 compensation insurance. Wausau then filed suit to collect the additional premiums, alleging that Kim\u2019s owed $27,857 for the 1991-92 policy year and $5,553 for the 1992-93 policy year.\nWausau and Kim\u2019s filed cross-motions for summary judgment. In its summary judgment motion, Wausau argued that Kim\u2019s was engaged in excavation, an extrahazardous activity under the Workers\u2019 Compensation Act (the Act), which requires employers to provide automatic insurance coverage for their own employees as well as for the employees of any independent or subcontractors. Ill. Rev. Stat. 1991, ch. 48, par. 138.1(a)(3). As such, Wausau could be potentially liable for Kim\u2019s outside haulers and, thus, was entitled to recover insurance premiums from Kim\u2019s for the outside haulers.\nIn its response and cross-motion for summary judgment, Kim\u2019s argued that it was not engaged in excavation so as to require Kim\u2019s to provide automatic insurance coverage for employees of its inde- \u25a0 pendent contractors under the Workers\u2019 Compensation Act. In addition, Kim\u2019s claimed that Wausau had the burden of proving that the money was due and that Wausau had improperly tried to shift this burden. The trial court granted summary judgment in favor of Wau-sau in the amount of $32,437, plus court costs. On appeal, Kim\u2019s argues that the trial court erred by granting summary judgment in favor of Wausau and reasserts the arguments made to the trial court.\nIn reviewing a trial court\u2019s order granting summary judgment, we examine the evidence and issues de nova. We consider all of the facts in the light most favorable to the nonmovant, in this case, Kim\u2019s Trucking. Koehler v. Scandinavian Airlines Systems, 285 Ill. App. 3d 520, 524, 674 N.E.2d 112, 116 (1996). Summary judgment is appropriate when the pleadings, depositions, and admissions on file demonstrate that there is no genuine issue of fact such that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2\u20141005 (West 1992).\nResolution of this case turns on interpretation of the insurance policies issued by Wausau to Kim\u2019s. The policy terms contained in part 5, relating to premiums, explain that premiums are calculated based on payroll:\n\"[A]nd all other remuneration paid or payable during the policy period for the services of:\n1. all your officers and employees engaged in work covered by this policy; and\n2. all other persons engaged in work that could make us liable under Part One (Workers Compensation Insurance) of this policy. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligations.\u201d\nAccording to this language, Kim\u2019s must pay premiums for its employees as well as for \"all other persons engaged in work that could make [Wausau] liable\u201d to pay workers\u2019 compensation, unless Kim\u2019s could demonstrate those persons\u2019 workers\u2019 compensation obligations were otherwise \"lawfully secured.\u201d\nThus, our first task is to determine the scope of the phrase contained in the policy, \"all other persons engaged in work that could make [Wausau] liable.\u201d As used in this manner, \"could\u201d indicates less than certainty as to Wausau\u2019s liability. See Webster\u2019s Third New International Dictionary 517 (1981). By its broad terms, the policy does not require dispositive proof of liability but, rather, merely the possibility of liability on the part of Wausau.\nWausau claims that Kim\u2019s, which conducts \"road construction trucking,\u201d is engaged in the business of either \"excavating\u201d or \"construction\u201d as contemplated by the Workers\u2019 Compensation Act. Ill. Rev. Stat. 1991, ch. 48, pars. 138.3(1), (2). Under the Act, either activity triggers the automatic insurance coverage provision of section 1(a)(3) requiring employers engaged in those activities to provide workers\u2019 compensation coverage for their own employees, as well as for employees of independent contractors and subcontractors. Ill. Rev. Stat. 1991, ch. 48, par. 138.1(a)(3).\nKim\u2019s argues that \"road construction trucking\u201d is not an extra-hazardous activity as defined by the Act. Kim\u2019s contends that it hauls construction materials and is not engaged in the loading or unloading of those materials. Accordingly, Kim\u2019s contends that it is not engaged in construction or excavation. While we agree with Kim\u2019s that \"road construction trucking\u201d does not constitute \"excavating\u201d or \"construction,\u201d we do find that such a pursuit constitutes the ex-trahazardous activity of \"Marriage by land\u201d under section 3(3) of the Act. Ill. Rev. Stat. 1991, ch. 48, par. 138.3(3).\nIn 1916, in Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N.E. 976 (1916), our supreme court affirmed a decision by the Industrial Board awarding a worker\u2019s compensation claim for an employee killed in the course of hauling crushed stone from a tunnel excavation to a nearby road paving site. Parker-Washington Co., 274 Ill. at 500, 113 N.E. at 977. While the case was decided on different grounds, the court, in dicta, made the following observation:\n\"We are of the opinion, also, that the occupation, enterprise!,] or business in which plaintiff in error was engaged at the time of the accident!,] if it was not engaged in construction work but only in the hauling of this crushed stone, can fairly be held to come within the provisions of clause 3 of said paragraph (b), \u2014 that is, that it was engaged in a business or enterprise of carriage by land.\u201d (Emphasis added.) Parker-Washington Co., 274 Ill. at 502, 113 N.E. at 978 (referring to provisions of the 1913 Workmen\u2019s Compensation Act).\nWe find no reason to depart from the court\u2019s almost century-old logic. Based on Parker-Washington, we hold that a business engaged solely in hauling is a business engaged in \"carriage by land\u201d pursuant to section 3(3) of the Act.\n\"Carriage by land\u201d does not trigger the automatic insurance coverage provisions under section 1(a)(3) of the Act. Thus, Kim\u2019s is not automatically required to provide insurance coverage for independent and subcontractor employees. Our inquiry, however, is guided by the terms of the Wausau insurance policy, which are broader than the automatic insurance liability provisions of the Workers\u2019 Compensation Act. As framed, the question is for whom could Wausau be liable, not for whom is Wausau automatically liable.\nSection 3 of the Act sets forth a list of business pursuits designated as extrahazardous, including \"Marriage by land.\u201d Ill. Rev. Stat. 1991, ch. 48, par. 138.3. Under this section, employers are required to provide workers\u2019 compensation insurance for their own employees engaged in any of the enumerated extrahazardous enterprises. Ill. Rev. Stat. 1991, ch. 48, par. 138.3. The Act defines both \"employer\u201d and \"employee.\u201d Ill. Rev. Stat. 1991, ch. 48, pars. 138.1(a), (b). The definition of \"employee\u201d is to be broadly construed, and whether a worker is an employee or an independent contractor is a question of fact dependent on the particular circumstances. Chicago Housing Authority v. Industrial Comm\u2019n, 240 Ill. App. 3d 820, 822, 608 N.E.2d 385, 387 (1992).\nThese provisions indicate that Wausau \"could\u201d be liable for workers\u2019 compensation for Kim\u2019s outside haulers. Kim\u2019s is engaged in \"Marriage by land,\u201d an extrahazardous pursuit that requires Kim\u2019s, as an employer, to provide automatic coverage for its employees. Ill. Rev. Stat. 1991, ch. 48, par. 138.3. If the outside haulers hired by Kim\u2019s were found to be employees, which is a factual inquiry, then Wausau could be liable for their workers\u2019 compensation coverage. Given the broad language of the Wausau insurance policy and the broad coverage by the Act of extrahazardous enterprises, we find that Wausau has shown that Kim\u2019s outside haulers are \"other persons engaged in work that could make [Wausau] liable.\u201d (Emphasis added.)\nAccordingly, returning to the terms of the insurance policy, Kim\u2019s must provide proof to Wausau that \"the employers of these persons lawfully secured their workers compensation obligations.\u201d Wausau argues that Kim\u2019s has not provided sufficient proof that the outside haulers\u2019 workers\u2019 compensation obligations were otherwise \"lawfully secured.\u201d Kim\u2019s contends that it has satisfied this burden by explaining that the outside haulers are independent contractors. Kim\u2019s claims it can provide no other proof because, \"[i]n the State of Illinois, an independent contractor is not entitled to compensation under the Workers\u2019 Compensation Act. *** As such, the owner/ operator of the vehicle is not able to obtain a certificate of insurance for workersf] compensation. Thus, how can [Kim\u2019s] produce what the independent contractor cannot obtain.\u201d\nKim\u2019s argument misses the mark. The result in this case turns, not on the status of the outside haulers but, rather, on the extrahazardous nature of the activity. As an extrahazardous enterprise under the Act, \"Marriage by land\u201d requires automatic workers\u2019 compensation coverage of all persons engaged in that activity. Employers must cover all employees and sole proprietors must obtain coverage as well. Any sole proprietor who does not want coverage must affirmatively opt out of coverage. Ill. Rev. Stat. 1991, ch. 48, par. 138.3; Country Mutual Insurance Co. v. Wagner\u2019s Bulldozing, 179 Ill. App. 3d 710, 713-14, 534 N.E.2d 1040, 1043 (1989).\nConsequently, contrary to Kim\u2019s position, the issue is not confined to whether Kim\u2019s outside haulers were independent contractors. Because the outside haulers could be found to be either employees or independent contractors, the insurance policy terms require Kim\u2019s to demonstrate that their workers\u2019 compensation obligations were secured in one form or another. Kim\u2019s could show this in one of three ways. First, Kim\u2019s could pay the premiums for the outside haulers. Second, Kim\u2019s could provide Wausau with certificates of insurance indicating the outside haulers obtained insurance coverage elsewhere. Or, third, Kim\u2019s could provide Wausau with documentation that the outside haulers had affirmatively opted out of coverage pursuant to the Act.\nAfter reviewing the record, we find that the trial court did not err in determining that Kim\u2019s did not provide sufficient proof to Wausau that the outside haulers\u2019 workers\u2019 compensation obligations were otherwise \"lawfully secured.\u201d Accordingly, the trial court properly granted summary judgment in favor of Wausau and properly denied summary judgment in favor of Kim\u2019s.\nAffirmed.\nGREIMAN, P.J., and QUINN, J., concur.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Bernadette Garrison Barrett, of Barrett, Sramek & Jasinski, of Palos Heights, for appellant.", "Edward S. Margolis, of Teller, Levit & Silvertrust, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "WAUSAU GENERAL INSURANCE COMPANY, Plaintiff-Appellee, v. KIM\u2019S TRUCKING, INC., Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201496\u20142070\nOpinion filed June 20, 1997.\n\u2014 Rehearing denied July 22, 1997.\nBernadette Garrison Barrett, of Barrett, Sramek & Jasinski, of Palos Heights, for appellant.\nEdward S. Margolis, of Teller, Levit & Silvertrust, P.C., of Chicago, for appellee." }, "file_name": "0201-01", "first_page_order": 219, "last_page_order": 225 }