                                  2016 IL App (1st) 153233

                                                                            SIXTH DIVISION
                                                                  Opinion filed: June 17, 2016

                                 No. 1-15-3233
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________

 WILLIAM MARQUEZ,                              )     Appeal from the
                                               )     Circuit Court of
        Plaintiff-Appellant,                   )     Cook County
                                               )
 v.                                            )     No. 2013 L 011856
                                               )
 MARTORINA FAMILY, LLC, and IPSA               )
 CORPORATION, Individually,                    )
                                               )
        Defendants-Appellees                   )     Honorable
                                               )     Kathy M. Flanagan,
 (Salvatore Martorina, Defendant).             )     Judge, Presiding.
______________________________________________________________________________

       JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
       Presiding Justice Rochford and Justice Delort concurred in the judgment and opinion.

                                          OPINION

¶1     The plaintiff, William Marquez, filed the instant action seeking damages for injuries he

suffered on November 2, 2011, while assisting in roof repairs on a commercial building. On

October 21, 2015, the circuit court granted the separate motions for summary judgment filed by

Martorina Family, LLC, and IPSA Corporation (IPSA), and the plaintiff has appealed. For the

reasons which follow, we affirm the summary judgment entered in favor of Martorina Family,
No. 1-15-5233

LLC, reverse the summary judgment in favor of IPSA, and remand this cause to the circuit court

for further proceedings.

¶2      On November 2, 2011, the plaintiff was assisting in roof repairs on a building located at

2833 West Chicago Avenue, Chicago, Illinois (building), when he was struck in the head by a

falling piece of lumber. The plaintiff’s four-count first amended complaint in the instant action

alleged that the building was owned by Martorina Family, LLC, that IPSA was the general

contractor for the work being performed at the building on the date of the his injury, and that he

was employed by Centro Development, Inc. (CENTRO), working at the building at the time of

his injury pursuant to an oral agreement entered into between CENTRO and IPSA.

¶3     The plaintiff filed a claim with the Illinois Workers’ Compensation Commission

(Commission) against CENTRO, seeking benefits pursuant to the Workers’ Compensation Act

(Act) (820 ILCS 305/1 et seq. (West 2010)) by reason of the injuries he suffered on November 2,

2011 (workers’ compensation claim). On July 2, 2012, the Commission approved a “Settlement

Contract Lump Sum Petition and Order” (settlement contract) signed by the plaintiff, his

attorney, and the attorney representing CENTRO. The caption of the settlement contract is

“WILLIAM MARQUEZ, Employee/Petitioner v. CENTRO DEVELOPMENT AND IPSA

CORPORATION/SALVATORE MARTORINA[,] Employer/Respondent.” The settlement

contract provides, in relevant part, that

                “[a]s a compromise adjustment, to avoid further litigation, Respondent offers and

                the Petitioner [the plaintiff] agrees to accept the total sum of $12,500.00,

                representing compensation for 5% loss of use of the person as a whole and

                disputed medical bills and disputed temporary disability, in full settlement of all

                claims of any nature arising out of the alleged accident of November 2, 2011,


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                including but not limited to all claims for injuries known and unknown, all claims

                for additional future temporary total disability, all claims for past or future

                medical, surgical or hospital treatments.”

The settlement contract also states that all elements of the claim are disputed, “including the

employer/employee relationship” and goes on to provide that “[t]he parties intend that this

settlement releases both [CENTRO] and IPSA *** from any and all workers’ compensation

liability resulting from the allegations made by the Claimant [the plaintiff] in relationship to the

accident date of November 2, 2011.”

¶4     On October 28, 2013, the plaintiff filed the instant action against Salvatore Martorina,

Martorina Family, LLC, and IPSA (collectively referred to as the “defendants”), seeking

damages for injuries he sustained while working at the building on November 2, 2011. The

plaintiff’s four-count first amended complaint was grounded in allegations of negligence on the

part of each of the defendants.

¶5     On June 17, 2014, Salvatore Martorina filed a motion to be dismissed as a party

defendant which the circuit court granted on October 25, 2014. The plaintiff has not appealed

from that order, and, as a consequence, Salvatore Martorina is not a party to this appeal.

¶6     On April 10, 2015, Martorina Family, LLC, filed a motion for summary judgment

supported by the depositions of the plaintiff, Salvatore Martorina, and Richard Sowinski, one of

IPSA’s supervisory employees. Martorina Family, LLC, argued that the evidentiary material

submitted in support of its motion established that it did not retain sufficient control over the

plaintiff or the work being performed at the building on November 2, 2011, to support the

imposition of any duty of care upon it for the plaintiff’s safety, and, as a consequence, it was

entitled to the entry of a judgment in its favor as a matter of law.


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¶7     On May 7, 2015, IPSA also filed a motion for summary judgment. That motion was

supported by the depositions of the plaintiff; Salvatore Martorina; Sowinski; Joseph Serafin,

another of IPSA’s supervisory employees; and Stewart Munoz, the president of CENTRO. The

motion was also supported by Munoz’s affidavit. IPSA argued that, at the time of his injury, the

plaintiff was its temporary or borrowed employee, on loan from CENTRO, and, as a result, the

plaintiff’s action against it is barred pursuant to section 5(a) of the Act (820 ILCS 305/5(a) (West

2010)) and the terms of the settlement contract.

¶8     The plaintiff responded to both motions for summary judgment supported by his own

deposition testimony and the deposition testimony of Salvatore Martorina, Sowinski, and Munoz.

The plaintiff argued that genuine issues of material fact exist on the questions of his status as a

borrowed employee of IPSA and whether Martorina Family, LLC, retained sufficient control

over the work being performed at the building at the time of his injury to impose upon it a duty

of care for his safety under the retained control exception to section 414 of the Restatement

(Second) of Torts (Restatement (Second) of Torts § 414, at 387-88 (1965)).

¶9     On October 21, 2015, the circuit court entered a written memorandum opinion and order,

granting both motions for summary judgment. As to Martorina Family, LLC’s motion for

summary judgment, the circuit court found that there are no genuine issues of fact on the

questions of whether Martorina Family, LLC, retained control over the work being performed at

the building at the time of the plaintiff’s injury, whether it exercised any such control, or whether

it had actual or constructive notice of any unsafe condition which resulted in the plaintiff’s

injuries. Consequently, the circuit court found that Martorina Family, LLC, owed no duty to the

plaintiff upon which liability for his injuries could be predicated. As to IPSA’s motion for

summary judgment, the court found that, although the evidentiary material on file discloses a


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genuine issue of fact on the question of the plaintiff’s actual status as a borrowed employee of

IPSA at the time of his injury, the plaintiff is, nevertheless, barred from recovering damages in

an action at law against IPSA by reason of his having settled his workers’ compensation claim

pursuant to a settlement contract which lists IPSA in the caption as his employer and which, by

its terms, releases IPSA from any and all workers’ compensation liability. This appeal followed.

¶ 10   Although the plaintiff’s notice of appeal states that he is appealing from the circuit

court’s order of October 21, 2015, granting the “Defendants’ Motions for Summary Judgment,”

in his brief filed in the instant appeal, the plaintiff addresses only the propriety of the summary

judgment entered in favor of IPSA and did not present any argument addressed to the summary

judgment entered in favor of Martorina Family, LLC. As a consequence, any claim of error in

the granting of Martorina Family, LLC’s motion for summary judgment has been forfeited

pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016), and we, therefore, affirm

the summary judgment in favor of Martorina Family, LLC.

¶ 11   In urging reversal of the summary judgment entered in favor of IPSA, the plaintiff argues

that, because a genuine issue of fact exists on the question of his status as a borrowed employee

working for IPSA at the time of his injury, the circuit court erred in granting summary judgment

in favor of IPSA based upon the exclusive remedy provision of the Act. See 820 ILCS 305/5(a)

(West 2010). He contends that the fact that he entered into the settlement contract disposing of

his workers’ compensation claim does not act as a bar to his right to recover damages against

IPSA in a negligence action if IPSA was not his employer at the time of his injury.

¶ 12   Summary judgment is an appropriate means of disposing of a cause of action where the

pleadings, depositions, admissions, together with the affidavits on file, viewed in a light most

favorable to the nonmoving party, demonstrate the absence of a genuine issue of material fact


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and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West

2014); Coleman v. East Joliet Fire Protection District, 2016 IL 117952, ¶ 20. We review a

circuit court’s order granting summary judgment de novo. Id.

¶ 13   Contrary to the plaintiff’s assertion, the circuit court did not assume that IPSA was his

employer. As noted above, the circuit court specifically found that, based upon the evidentiary

material before it, a genuine issue of fact exists on the question of the plaintiff’s status as a

borrowed employee of IPSA at the time of his injury. Nevertheless, the circuit court still found

that the plaintiff’s negligence action against IPSA was barred under the exclusive remedy

provision of the Act (see 820 ILCS 305/5(a) (West 2010)) by reason of his having entered into

the settlement contract resolving his workers’ compensation claim.

¶ 14   Section 5(a) of the Act provides, in relevant part that: “No common law *** right to

recover damages from the employer, *** other than the compensation herein provided, is

available to any employee who is covered by the provisions of this Act.” 820 ILCS 305/5(a)

(West 2010). If a plaintiff has collected workers’ compensation benefits pursuant to a settlement

agreement approved by the Commission, he is precluded from suing for damages in a civil

action. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241-42 (1980).

¶ 15   If we were faced with a situation in which the plaintiff had filed a workers’ compensation

action against both CENTRO and IPSA seeking benefits for the injuries he sustained on

November 2, 2011, and subsequently entered into a settlement contract with both, which

provided for the payment of benefits pursuant to the Act and that settlement agreement was

approved by the Commission, we would have no difficulty affirming the summary judgment

entered in favor of IPSA predicated upon the exclusive remedy provision of the Act. In such a

circumstance, the plaintiff, having sought benefits under the Act against CENTRO and IPSA on


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the ground that he was injured in the course of his employment and having entered into a lump-

sum settlement agreement resolving the workers’ compensation claim, would be barred under the

doctrines of judicial estoppel and res judicata from adopting a contrary position in a subsequent

civil action against IPSA for the same injuries and relitigating his employment status in an

attempt to avoid the exclusive remedy provision of the Act. Esposito v. Dior Builders, 274 Ill.

App. 3d 338, 345-47 (1995); Paluch v. Dever, 243 Ill. App. 3d 334, 337-38 (1993); Mijatov v.

Graves, 188 Ill. App. 3d 792, 796 (1989). To the extent that the holding in Gray v. National

Restoration Systems, Inc., 354 Ill. App. 3d 345 (2004), would yield a contrary result, we decline

to follow it.

¶ 16    In Gray v. National Restoration Systems, Inc., the plaintiff, Valerie Gray, filed a workers’

compensation action with the Commission on October 5, 1995, against “ ‘National Resurfacing,

Inc. d/b/a National Restoration Systems’ ” by reason of the death of her husband resulting from

an explosion at his place of employment. 354 Ill. App. 3d at 350. On June 25, 1997, Gray also

brought an action in the circuit court against “ ‘National Restoration Systems, Inc. f/k/a National

Resurfacing Inc.,’ ” and others grounded in allegations of negligence which resulted in the death

of her husband (civil action). Id. at 351. On March 1, 2000, the Commission approved a

“Settlement Contract Lump-Sum Petition and Order” captioned as “ ‘Valerie Gray, widow of

William Gray, deceased v. National Restoration Systems, Inc. a/k/a National Resurfacing,

Inc.,’ ” which provided that “ ‘William Gray’s employer, National Restoration, Inc., to pay and

petitioner to accept $220,000 in full and final settlement of any and all claims under the

Worker’s Compensation and Occupational Disease Acts for all accidental injuries allegedly

incurred as described herein.’ ” Id. Thereafter, on March 10, 2000, “ ‘National Restoration

Systems, Inc. f/k/a National Resurfacing, Inc.’ ” (id.), filed a motion in the civil action pursuant


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to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)),

seeking to be dismissed based upon Gray’s settlement of the workers’ compensation action and

the exclusive remedy provision of the Act. The circuit court granted that motion on May 31,

2000. Following the resolution of the remaining claims, Gray appealed the circuit court’s order

dismissing National Restoration Systems, Inc. Gray, 354 Ill. App. 3d at 349-54.

¶ 17   Relying upon our supreme court’s decision in Laffoon v. Bell & Zoller Coal Co., 65 Ill.

2d 437 (1976), a different division of this district of the Illinois Appellate Court reversed the

circuit court’s order dismissing National Restoration Systems, Inc., finding that a question of fact

existed on the question of whether the decedent was an employee of National Restoration

Systems, Inc. or National Resurfacing, Inc., at the time of the accident resulting in his death.

Gray, 354 Ill. App. 3d at 355. The Gray court found that neither the doctrine of judicial estoppel

nor the doctrine of res judicata would bar Gray from pursuing a civil suit against National

Restoration Systems, Inc., notwithstanding the fact that she had received workers’ compensation

benefits from National Restoration Systems, Inc., pursuant to a settlement agreement which had

been approved by the Commission. Id. at 356-57. We believe that the flaw in the Gray court’s

reasoning is twofold. First, the Gray court failed to recognize that Laffoon, which held that

section 5(a) of the Act is to be interpreted as conferring immunity upon employers only from

common law or statutory actions for damages by their immediate employers, was decided in the

context of the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, ¶ 60 et seq.) claims brought by

injured workmen against general contractors who were not their employers but who were,

nevertheless, required to pay them benefits pursuant to section 1(a)(3) of the Act (Ill. Rev. Stat.

1975, ch. 48, ¶ 138.1(a)(3)) by reason of their immediate employers’ failure to carry workers’

compensation insurance. Laffoon, 65 Ill. 2d at 440-43. Our supreme court held that, since the


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general contractors who had paid the injured workmen benefits pursuant to the Act were not their

employers, they were not entitled to immunity from suit afforded by the exclusive remedy

provisions of the Act. Laffoon, 65 Ill. 2d at 445-47. The facts in Gray are readily distinguishable

from those present in Laffoon as National Restoration Systems, Inc., paid Gray benefits under the

Act as the decedent’s employer (see Gray, 354 Ill. App. 3d at 351) and not as a nonemployer

obligated to pay benefits under section 1(a)(3) of the Act. Second, in concluding that neither the

doctrine of judicial estoppel nor the doctrine of res judicata would bar Gray from pursuing a

civil suit against National Restoration Systems, Inc., the Gray court seemingly ignored the fact

that Gray filed her workers’ compensation claim against “ ‘National Resurfacing Inc. d/b/a

National Restoration Systems’ ” and settled that claim pursuant to a settlement contract

captioned “ ‘Valerie Gray, widow of William Gray, deceased v. National Restoration Systems,

Inc. a/k/a National Resurfacing, Inc.,’ ” which provided that William Gray’s employer was

“ ‘National Restoration, Inc.’ ” Gray, 354 Ill App. 3d at 350-51. The doctrine of judicial estoppel

provides that when a party asserts a certain position in a legal proceeding, that party is precluded

from asserting a contrary position in a subsequent proceeding. Mijatov, 188 Ill. App. 3d at 796.

Having filed a workers’ compensation claim against an entity doing business as “ ‘National

Restoration Systems’ ” by reason of the death of her husband which arose out of and in the

course of his employment and having settled that claim with “ ‘National Restoration Systems,

Inc.,’ ” Gray should have been judicially estopped from asserting in her civil action that her

husband was not in the employ of “ ‘National Restoration Systems, Inc.’ ” at the time of his

death. Additionally, a final judgment rendered by a court of competent jurisdiction on the merits

is conclusive of the rights of the parties and their privies, and, as to them, constitutes an absolute

bar to a subsequent action involving the same claim demand or cause of action, and that bar


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extends not only to what was actually determined in the former action, but also to any matter that

properly could have been raised and determined. Gray, 354 Ill. App. 3d at 351; Esposito, 274 Ill.

App. 3d at 346; Paluch, 243 Ill. App. 3d at 338. The settlement contract, which resolved Gray’s

workers’ compensation claim, specifically provides that her deceased husband’s employer was

“National Restoration, Inc.,” and that settlement contract became the award of the Commission

upon its approval. Mijatov, 188 Ill. App. 3d at 796. Consequently, Gray should have been barred

by the doctrine of res judicata from relitigating the issue of whether “National Restoration

Systems, Inc.,” was her husband’s employer at the time of his death. Our analysis in this regard

leads us to conclude that Gray was wrongly decided and we, therefore, decline to follow its

holding.

¶ 18   Turning back to the propriety of the summary judgment granted in favor of IPSA in this

case, we are not faced with a fact situation that is totally analogous to the facts present in

Esposito, Paluch and Mijatov. The plaintiff in this case never filed a workers’ compensation

claim against IPSA; rather, he filed his claim against CENTRO. According to the deposition

testimony of Salvatore Martorina, the president of IPSA, it was Munoz, the president of the

CENTRO, who instructed CENTRO’s attorney to include his name and the name of IPSA in the

settlement contract. He stated that the attorneys representing CENTRO did not represent him or

IPSA. According to Salvatore Martorina, Munoz told him that his name and the name of IPSA

had been included in the settlement contract after it had been done. Further, an examination of

the settlement contract reveals that it was not signed by either Salvatore Martorina or anyone on

behalf of IPSA.

¶ 19   We find nothing in the record supporting the proposition that the plaintiff ever asserted in

the workers’ compensation claim that he was injured while acting as an employee of IPSA, and,


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other than in the caption, the settlement contract does not contain any provision that identifies

IPSA as the plaintiff’s employer. Consequently, we do not believe that the doctrine of judicial

estoppel precludes the plaintiff from asserting in this action that he was not an employee of IPSA

at the time of his injury on November 2, 2011. Further, since the record fails to reflect that IPSA

was ever made a party to the plaintiff’s workers’ compensation claim, the commonality of parties

necessary for the application of the doctrine of res judicata to the position taken by the plaintiff

concerning his employment status is absent.

¶ 20    Based upon the foregoing analysis, we conclude that the plaintiff is not precluded from

suing IPSA for damages in a civil action by reason of his having settled his workers’

compensation claim. Further, since, as the circuit court found, there is a genuine issue of fact on

the question of whether the plaintiff was a borrowed employee in the service of IPSA at the time

of his injury, we conclude that the circuit court erred in granting summary judgment in favor of

IPSA.

¶ 21    We wish to be clear in our holding. We have held only that the plaintiff’s employment

status is a disputed issue of fact that has yet to be resolved. If the trier of fact were to determine

that, at the time of his injury on November 2, 2011, the plaintiff was a borrowed employee in the

service of IPSA, section 5(a) of the Act would stand as a bar to his right to recover damages in

this action against IPSA.

¶ 22    For the reasons stated, we affirm the summary judgment entered by the circuit court in

favor of Martorina Family, LLC, reverse the summary judgment entered in favor of IPSA, and

remand this matter to the circuit court for further proceedings.

¶ 23    Affirmed in part and reversed in part; cause remanded.




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