{ "id": 351119, "name": "ATLANTIC MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PHALLON PAYTON, Defendant-Appellant", "name_abbreviation": "Atlantic Mutual Insurance v. Payton", "decision_date": "1997-06-30", "docket_number": "No. 1\u201495\u20142424", "first_page": "866", "last_page": "875", "citations": [ { "type": "official", "cite": "289 Ill. App. 3d 866" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "W. Va. Code \u00a7\u00a7 23", "category": "laws:leg_statute", "reporter": "W. Va. Code", "opinion_index": 0 }, { "cite": "191 W. Va. 542", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8577785 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "543" }, { "page": "6" }, { "page": "545-46" }, { "page": "8-9" } ], "opinion_index": 0, "case_paths": [ "/w-va/191/0542-01" ] }, { "cite": "799 F.2d 955", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1605749 ], "year": 1986, "pin_cites": [ { "page": "959" } ], "opinion_index": 0, "case_paths": [ "/f2d/799/0955-01" ] }, { "cite": "317 N.W.2d 43", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10674784 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nw2d/317/0043-01" ] }, { "cite": "562 N.E.2d 132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "134" } ], "opinion_index": 0 }, { "cite": "54 Ohio St. 3d 61", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 1426222 ], "year": 1990, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ohio-st-3d/54/0061-01" ] }, { "cite": "585 N.E.2d 1023", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "146 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597125 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0155-01" ] }, { "cite": "175 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295765 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0218-01" ] }, { "cite": "461 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "101 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160770 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "14" }, { "page": "10" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0001-01" ] }, { "cite": "408 So. 2d 436", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9546674 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/so2d/408/0436-01" ] }, { "cite": "451 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "96 Ill. 2d 479", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114553 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "483-86" }, { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0479-01" ] }, { "cite": "396 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1979, "opinion_index": 0 }, { "cite": "77 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489785 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "390-91" }, { "page": "390-91" }, { "page": "390" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0384-01" ] }, { "cite": "328 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 274", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410328 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "276-79" }, { "page": "276-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0274-01" ] }, { "cite": "175 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295806 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/ill-2d/175/0201-01" ] }, { "cite": "175 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295765 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/ill-2d/175/0218-01" ] }, { "cite": "461 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "101 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160770 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "10" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/101/0001-01" ] } ], "analysis": { "cardinality": 790, "char_count": 21912, "ocr_confidence": 0.771, "pagerank": { "raw": 5.062449599413356e-08, "percentile": 0.319739683664955 }, "sha256": "5c846aeefa5e0d9fe7b2f96c6d7001882c2e7ac956b0df239ecad539d6391385", "simhash": "1:c323f7f23e86f2dc", "word_count": 3550 }, "last_updated": "2023-07-14T21:29:08.370768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ATLANTIC MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PHALLON PAYTON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CERDA\ndelivered the opinion of the court:\nThis appeal involves a claim for uninsured motorist benefits. Phallon Payton, defendant in this declaratory judgment action, was injured while riding as a passenger in a van owned by his employer and driven by a coemployee. Defendant received workers\u2019 compensation benefits. Defendant then made a claim for uninsured motorist benefits under a policy issued by plaintiff, Atlantic Mutual Insurance Company, to defendant\u2019s employer. In the declaratory action filed by plaintiff, the circuit court of Cook County granted plaintiff s motion for judgment on the pleadings.\nDefendant appeals from the judgment that found that defendant could not recover uninsured motorist benefits under the policy issued by plaintiff on the basis that Payton, who had received workers\u2019 compensation benefits for his injury, was not legally entitled to recover damages from his coemployee. Because Payton was injured while in the course of his employment, Payton claimed that his driver, a coemployee, was immune from suit under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 1994)) and therefore was uninsured under the uninsured motorist provision of Atlantic\u2019s automobile policy.\nPayton argues on appeal that the exclusive-remedy provision of the Workers\u2019 Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1994)) did not make him ineligible for benefits under the insurance policy, which stated that the amount payable was only what the insured was \"legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle.\u201d On the other hand, Atlantic believes that, because workers\u2019 compensation recovery is the exclusive remedy provided under the Workers\u2019 Compensation Act, defendant is barred from seeking damages from his employer and coemployee. Atlantic states that, if Payton is not legally entitled to recover damages from his coemployee, he cannot recover damages from the owner of the vehicle, his employer. Defendant was not \"legally entitled to recover\u201d damages and therefore was not entitled to coverage under the uninsured motorist provision of the employer\u2019s insurance policy.\nPayton recognizes Williams v. Country Mutual Insurance Co., 28 Ill. App. 3d 274, 276-79, 328 N.E.2d 117 (1975), which upheld the denial of uninsured motorist coverage on the basis that the injuries arose out of employment. In that case, there was an uninsured motorist provision that provided that uninsured motorist coverage extended only in instances where the insured or his representative had a legal right to recover damages from the uninsured motorist. The court in Williams held that the Workers\u2019 Compensation Act precludes a common law action by an employee, for accidental injury sustained by such employee, against a coemployee, if the parties are covered by the provisions of the Act and the injury arose out of and in the course of their employment. Williams, 28 Ill. App. 3d at 276-77. Defendant argues that Williams was contrary to the Illinois Supreme Court\u2019s interpretation of the language \"legally entitled to recover\u201d in Allstate Insurance Co. v. Elkins, 77 Ill. 2d 384, 390-91, 396 N.E.2d 528 (1979).\nIn Elkins, 77 Ill. 2d at 390-91, the court held that the existence of interspousal immunity did not bar recovery by a wife under an uninsured motorist policy for damages sustained while riding as a passenger in a vehicle driven by her husband. At that time, the inter-spousal immunity statute provided that \"neither husband nor wife may sue the other for a tort to the person committed during coverture.\u201d Ill. Rev. Stat. 1973, ch. 68, par. 1. The court noted that the effect of the interspousal immunity doctrine was not to destroy the cause of action of the injured spouse but was to confer immunity on the tortfeasor spouse. Elkins, 77 Ill. 2d 384, 396 N.E.2d 528. The court also noted that the immunity was like a defense because it could be waived by the defendant spouse. Elkins, 77 Ill. 2d 384, 396 N.E.2d 528.\nThe court in Elkins interpreted the policy\u2019s phrase \"legally entitled to recover\u201d as meaning that the claimant must be able to prove the elements of her claim necessary to entitle her to recover damages. Elkins, 77 Ill. 2d at 390. The fact that statutory immunity might be invoked by an uninsured motorist was relevant to the question of the right to enforce payment but that did not affect the claimant\u2019s legal entitlement to recovery. Elkins, 77 Ill. 2d at 390.\nPayton argues that the workers\u2019 compensation exclusivity provision was similar to interspousal immunity in being an affirmative defense that did not negate the essential elements of plaintiff s cause of action and argues that the immunity could be waived by the employer.\nWe find that Elkins is distinguishable because the Workers\u2019 Compensation Act does not just provide the employer with a defense of exclusivity but takes away from the employee the right to recover damages from his employer and coemployee. The Act provides:\n\"No common law or statutory right to recover damages from the employer, his insurer *** or employees or 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 provision of this Act ***.\u201d 820 ILCS 305/5(a) (West 1994).\nThe case before us differs from third-party cases, which do not involve employee, coemployee and employer relationships. Third-party cases dealing with spousal immunity or parental immunity deal with different policies and different approaches. The Workers\u2019 Compensation Act provides a remedy for injuries inflicted by negligent or intentional acts upon an employee. Fregeau v. Gillespie, 96 Ill. 2d 479, 483-86, 451 N.E.2d 870 (1983). When the legislature created spousal immunity, it did not create a remedy for an injured spouse. When the legislature took away common law tort actions between employers and employees and between coemployees, in return, as a trade-off, it provided a no-fault system of workers\u2019 compensation. In Illinois the legislature created this exclusive remedy not only for employers and coemployees but also specifically and expressly for insurers.\nWe agree with the court in Gray v. Margot, Inc., 408 So. 2d 436 (La. App. 1981), which pointed out that interspousal immunity is a personal defense that merely cuts off a right of action and conversely that the tort immunity provided under Louisiana\u2019s workers\u2019 compensation scheme denies a plaintiff a cause of action. In Gray the action would have been against a coemployee. The Gray court also believed that, unlike interspousal immunity, tort immunity under its workers\u2019 compensation statute is not personal to an employer and may be invoked by his insurer. Gray v. Margot, 408 So. 2d at 438.\nIn Doyle v. Rhodes, 101 Ill. 2d 1, 14, 461 N.E.2d 382 (1984), the supreme court held that an employer remains \"subject to liability in tort\u201d to an employee in spite of section 5(a) of the Act. The court reasoned that the Act provided an affirmative defense that must be established and that is waived if not asserted by the employer. Doyle, 101 Ill. 2d at 10. The supreme court held that the circuit court should not have dismissed the third-party complaint seeking contribution from the employer. Doyle, 101 Ill. 2d at 14. The case was decided under the Joint Tortfeasors Contribution Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq. (now 740 ILCS 100/0.01 et seq. (West 1996)). Defendant argues that Doyle is binding authority to hold that he is legally entitled to recover compensatory damages from his employer and that an affirmative defense admits the legal sufficiency of a cause of action.\nWe find Doyle distinguishable from this case. In Doyle the court had to decide between two public policies \u2014 one under the Workers\u2019 Compensation Act and the other under the Contribution Act. The supreme court decided that the public policy to allocate liability in proportion to fault was a stronger public policy and permitted contribution against the employer. We see no strong public policy in the provision in the Illinois Insurance Code on uninsured motor vehicle coverage (215 ILCS 5/143a (West 1994)) to override the exclusive remedy under the Workers\u2019 Compensation Act, which provides damages for injuries suffered. Also, in this case we have an insurance policy and the uninsured motor vehicle coverage act, whose wording is similar to the language in the Workers\u2019 Compensation Act (820 ILCS 305/5(a) (West 1994)): \"[N]o common law or statutory right to recover damages.\u201d (Emphasis added.) This indicates that the Workers\u2019 Compensation Act provides the exclusive remedy.\nIn contrast to Doyle v. Rhodes, wherein the court refused to dismiss a third-party complaint against the employer because an affirmative defense could be waived, the supreme court in the case of Ramsey v. Morrison, 175 Ill. 2d 218 (1997), held that the circuit court properly dismissed the third-party action against the plaintiffs coemployee for contribution.\nKotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023 (1991), held that the employer\u2019s liability in contribution is limited to and will not exceed the employer\u2019s liability for workers\u2019 compensation benefits.\nDefendant has already received workers\u2019 compensation benefits in the amount of $116,907. The limit of defendant\u2019s employer\u2019s liability under the Act has been reached. Paragraph D-2(a) of the policy is entitled \"Limit of Insurance\u201d and provides:\n\"2. Any amount under this coverage shall be reduced by:\na. All sums paid or payable under any worker\u2019s compensation, disability benefits or similar law ***.\u201d\nPayton argues that the inclusion of this provision in the policy indicates that it was contemplated that the injured party may have received workers\u2019 compensation benefits from his employer. Therefore, the policy provides that Payton is entitled to recover damages under the policy that are to be reduced by the setoff of the benefits received in order to avoid a double recovery.\nWe do not find any ambiguity in the policy. The limitation or exclusion of coverage under paragraph D-2(a) does not grant coverage. Only the insuring clause entitled \"coverage\u201d grants coverage. We agree with Atlantic that paragraph D-2(a) applies where the insured employee who has been injured is entitled to recover damages from an uninsured stranger to the employment relationship.\nCases from other jurisdictions have dealt with the issue of liability between coemployees in attempting to obtain coverage under uninsured motorist statutes. In the case of State Farm Mutual Automobile Insurance Co. v. Webb, 54 Ohio St. 3d 61, 63, 562 N.E.2d 132, 134 (1990), the court stated:\n\"Likewise, in the case here, immunity under R.C. 4123.741 is 'conditioned\u2019 upon a determination that the co-employee is entitled to worker\u2019s compensation. At the point when the immunity is obtained, there is nothing at all conditional about it. Any claim filed after such immunity is established is ineffective against the party so protected.\u201d\nIn the case sub judice, Payton has received all of his workers\u2019 compensation benefits and is therefore barred from obtaining an additional remedy. In the case of Fregeau v. Gillespie, 96 Ill. 2d 479, 486, 451 N.E.2d 870 (1983), the supreme court stated:\n\"The employee here chose to obtain compensation under the Act, which was designed to provide speedy recovery without proof of fault for accidental injuries. He is barred under the holding in Collier from bringing an action against his co-employee for civil damages.\u201d\nLarson, a well-known author on the topic of workers\u2019 compensation laws, has noted:\n\"Ordinarily, for the uninsured motorist clause to operate in the first place, the uninsured third person must be legally subject to liability. Thus, if the third person is specifically made immune to tort suit by the compensation act\u2019s exclusive remedy clause, the uninsured motorist provision does not come into play.\u201d 2A A. Larson, Workmen\u2019s Compensation Law \u00a7 71.23(j), at 14 \u2014 55 (Supp. 1987).\nThe case of Peterson v. Kludt, 317 N.W.2d 43 (Minn. 1982), makes clear the policy reason why a coemployee should not be able to sue a coemployee for tort damages. The court pointed out:\n\"We do not deem it material whether the statute intended, when passed, to cover this situation or not. One of the trade-offs in passing the Workers\u2019 Compensation Act was that one employee would not be eligible to sue another in a situation such as is presented here. To allow an employee to sue his fellow worker for negligence and thus permit his employer to be reimbursed from the recovery for workers\u2019 compensation benefits already paid is 'to shift tort liability from employer to fellow employee in a manner never intended by the workers\u2019 compensation system.\u2019 \u201d Peterson, 317 N.W.2d at 48, quoting Minnesota Workers\u2019 Compensation Study Commission, A Report to the Minnesota Legislature and Governor 41 (1979).\nIn this case, the coverage clause states:\n\"We will pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle.\u201d\nAtlantic Mutual, the employer\u2019s insurance carrier, stands in the shoes of both the driver and the owner of the uninsured motor vehicle. The accident took place during the course of employment. Payton has received workers\u2019 compensation benefits, and therefore he is barred from bringing a civil action for the same injuries against his coemployee, employer, and the insurer.\nA reason that the driver is deemed uninsured is because the Workers\u2019 Compensation Act grants immunity from any liability towards a coemployee. Now Payton is trying to argue that the exclusive remedy and immunity protection provided by the Act do not apply. He cannot have application and nonapplication of the provisions of the Act at the same time.\nPayton is in a better position to receive damages if his fellow employee is uninsured. This was explained in the case of Perkins v. Insurance Co. of North America, 799 F.2d 955, 959 (5th Cir. 1986), where the court stated:\n\"We also note that to hold INA liable in this instance would create the anomaly that Perkins would be better off with the driver uninsured than if the driver had carried an adequate personal liability insurance policy providing coverage for the driver\u2019s liability. If the driver had such a personal policy, then there could be no uninsured motorist claim by Perkins because the driver would be insured. However, in a suit against the driver, Perkins would not be able to preclude the operation of the exclusive remedy clause of Mississippi\u2019s worker\u2019s compensation statute because the driver could assert his co-employee immunity. [Citation.] Thus Perkins, under his argument, achieves a greater overall recovery than he would if the driver were adequately insured. We doubt that the uninsured motorist statute was intended to produce such a result.\u201d\nWe do not believe that the Illinois uninsured motorist statute intended to place Payton in a more advantageous position because his driver was uninsured under the Act. We agree with the court in Perkins.\nThe Ramsey court had to determine whether a third party sued by an injured employee may recover contribution from a coemployee who is immune from a direct suit by a fellow employee under section 5(a) of the Workers\u2019 Compensation Act. The court stated that, in balancing the policies of contribution and the immunity granted to coemployees under the Workers\u2019 Compensation Act, it believed that coemployee immunity must prevail over the third party\u2019s right to contribution. The court stated:\n\"In other words, the liability of the coemployee is paid by the employer in the form of workers\u2019 compensation benefits and the coemployee is immune from suit. In this manner, the system achieves the goal of placing the burden of employee injuries on the employer.\nAllowing contribution to be recovered from a coemployee would entirely defeat the effect of the immunity granted to coemployees and would thereby defeat a central purpose of the Workers\u2019 Compensation Act.\u201d Ramsey, 175 Ill. 2d at 229.\nIn the case of Wisman v. Rhodes & Shamblin Stone, Inc., 191 W. Va. 542, 543, 447 S.E.2d 5, 6 (1994), the plaintiff employee argued that the insurer must pay him uninsured motorist benefits that he was \"legally entitled to recover\u201d and that the insurer could not raise the workers\u2019 compensation bar as a defense to the policy\u2019s contractual obligations. The Wisman court held:\n\"We conclude that an employee who receives workers\u2019 compensation benefits for an injury that occurs within the course and scope of employment is not entitled to assert a claim for uninsured or underinsured motorist benefits. Because of the provisions for employer and coemployee immunity contained in W. Va. Code \u00a7\u00a7 23 \u2014 2\u20146 and 6a (1994), workers\u2019 compensation is the exclusive remedy available to an injured employee, and an uninsured or un-derinsured motorist carrier has no liability.\u201d Wisman, 191 W. Va. at 545-46, 447 S.E.2d at 8-9.\nIt is interesting to note that many of the statutes conferring immunity to protect parties do not expressly protect insurers. However, in the Workers\u2019 Compensation Act, the Illinois legislature has expressly included insurers along with employers and employees as being protected from tort actions. Insurers thus have the same rights as employers and employees.\nThe defendant in this case has not been left without a remedy. The defendant has received workers\u2019 compensation benefits. The employer and coemployee cannot be held liable for additional tort damages. Under Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), the employer cannot be held liable to a stranger to the employment relationship, a third party, for more money than the employee is entitled to receive under the Act. The employee has reached that limit in this case. Also, the uninsured motorist statute does not overcome the public policy of protecting employers and employees under the Workers\u2019 Compensation Act. The employer did not yield the protection provided under the Act when it purchased an uninsured motorist insurance policy. The uninsured motorist policy was purchased for protection when an employee is injured by a third party. The workers\u2019 compensation insurance policy was purchased to pay benefits when there is an injury to an employee during the course of employment. In this case, the coemployee\u2019s acts were not covered under Atlantic\u2019s insurance policy.\nThe judgment of the trial court is affirmed.\nAffirmed.\nBURKE, J., concurs.", "type": "majority", "author": "JUSTICE CERDA" }, { "text": "PRESIDING JUSTICE WOLFSON,\ndissenting:\nBefore Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382 (1984) was decided in 1984, we wondered how an employer could be \"subject to liability in tort\u201d under the Contribution Act. After all, section 5(a) of the Worker\u2019s Compensation Act seemed to bar an employee\u2019s action against an employer.\nThe supreme court\u2019s answer is clear:\n\"The Workers\u2019 Compensation Act provides employers with a defense against any action that may be asserted against them in tort, but that defense is an affirmative defense whose elements\u2014 the employment relationship and the nexus between the employment and the injury \u2014 must be established by the employer, and which is waived if not asserted by him in the trial court.\u201d Doyle, 101 Ill. 2d at 10.\nThat is, says Doyle, an employee can sue an employer in tort. If the employer chooses, for some reason, not to assert the affirmative defense of section 5(a), the employee may obtain a judgment against the employer. We know that an employer may, by contract, relinquish the liability limitation set forth in Kotecki. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201 (1977).\nIt follows, then, that Phallon Payton was \"legally entitled to recover damages\u201d from his employer unless and until the employer asserted a defense under section 5(a). Since the employer is not a party to this action, there is no one to assert the affirmative defense contained in section 5(a).\nI agree that Ramsey v. Morrison, 175 Ill. 2d 218 (1997), bars an employee\u2019s negligence claim against a coemployee. But that case indicates a claim may be brought against the employer for his employee\u2019s negligence. Presumably, it would be up to the employer to assert the section 5(a) exclusivity bar. If, for some reason, he chooses not to, the case proceeds. At any rate, this is not a case where either an employee or a third party is suing an employer or a coemployee for an event covered by the Workers\u2019 Compensation Act.\nI do not see why, as the majority believes, Atlantic Mutual \"stands in the shoes of both driver and the owner of the uninsured motor vehicle.\u201d 289 Ill. App. 3d at 872. If Atlantic Mutual had wanted to bar an action like this one, it could have said so in its policy. Paragraph D-2(a) of the policy, contained in the \"Limit of Insurance\u201d section, recognizes coverage would be reduced by workers\u2019 compensation benefits. I do not read that language as an attempt to bar any coverage above and beyond Payton\u2019s recovery under the Workers\u2019 Compensation Act.\nPayton should not be precluded from coverage under the terms of this uninsured motorist policy. He does not seek a double recovery. He seeks a full recovery.\nI believe the majority decision unjustifiably diminishes the holding in Doyle v. Rhodes. For that reason, I respectfully dissent.", "type": "dissent", "author": "PRESIDING JUSTICE WOLFSON," } ], "attorneys": [ "Karlin & Fleisher (Charles E. Tennen, of counsel), and David A. Novosel-sky & Associates (David A. Novoselsky and Margarita Kulys, of counsel), both of Chicago, for appellant.", "Clausen Miller, P.C., of Chicago (James T. Ferrini, Lisa Marco Kaouba, and Mark D. Paulson, of counsel), for appellee." ], "corrections": "", "head_matter": "ATLANTIC MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PHALLON PAYTON, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201495\u20142424\nOpinion filed June 30, 1997.\nKarlin & Fleisher (Charles E. Tennen, of counsel), and David A. Novosel-sky & Associates (David A. Novoselsky and Margarita Kulys, of counsel), both of Chicago, for appellant.\nClausen Miller, P.C., of Chicago (James T. Ferrini, Lisa Marco Kaouba, and Mark D. Paulson, of counsel), for appellee." }, "file_name": "0866-01", "first_page_order": 884, "last_page_order": 893 }