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                                     Appellate Court                        Date: 2018.04.17
                                                                            12:56:01 -05'00'




             A&R Janitorial v. Pepper Construction Co., 2017 IL App (1st) 170385



Appellate Court         A&R JANITORIAL, as Subrogee of Teresa Mroczko, Plaintiff-
Caption                 Appellee, v. PEPPER CONSTRUCTION COMPANY; PEPPER
                        CONSTRUCTION GROUP, LLC; PEREZ & ASSOCIATES, INC.;
                        PEREZ CARPET; CBRE, INC.; and BLUE CROSS AND BLUE
                        SHIELD ASSOCIATION, Defendants-Appellees (Teresa Mroczko,
                        Individually, Intervenor-Appellant).



District & No.          First District, Third Division
                        Docket No. 1-17-0385



Filed                   December 27, 2017



Decision Under          Appeal from the Circuit Court of Cook County, No. 14-L-8396; the
Review                  Hon. William Edward Gomolinski, Judge, presiding.



Judgment                Reversed and remanded.


Counsel on              Elliot R. Schiff, of Schiff Gorman, LLC, of Chicago, for
Appeal                  intervenor-appellant.

                        Gregory G. Vacala and Douglas B. Keane, of Rusin & Maciorowski,
                        Ltd, of Chicago, for appellee A&R Janitorial.

                        Julie A. Teuscher, Thomas P. Boylan, and Michael P. Moothart, of
                        Cassiday Schade LLP, of Chicago, for appellee Pepper Construction
                        Co.
     Panel                     JUSTICE HOWSE delivered the judgment of the court, with opinion.
                               Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the
                               judgment and opinion.


                                                OPINION

¶1         This is an appeal from an order of the circuit court of Cook County denying Teresa
       Mroczko’s (appellant) petition to intervene in an action filed by her employer, A&R Janitorial
       (plaintiff) against defendants. Plaintiff, Teresa’s employer at the time of her injury, filed its
       action against the named defendants as the subrogee of Teresa pursuant to section 5(b) of the
       Workers’ Compensation Act (Act). 820 ILCS 305/5(b) (West 2016). Section 5(b) of the Act
       allows injured employees to file a lawsuit against a third-party defendant legally liable for an
       employee’s injury and provides that the employer be indemnified for any payments it made
       under the Act to the employee from any recovery made from the lawsuit. If the injured
       employee does not file a claim against the third-party defendant prior to three months before
       the expiration of the statute of limitations, section 5(b) also allows the employer to file a claim
       against the third-party defendant to indemnify itself for benefits paid to its employee and to
       recover damages, as subrogee, for damages suffered by the injured employee. Under the Act,
       all money recovered over and above the amounts the employer has already paid to the
       employee shall be paid to the employee. On June 11, 2015, after the expiration of the two-year
       statute of limitations, and after the employer timely filed its suit for damages as subrogee,
       appellant filed her complaint in the circuit court of Cook County, seeking damages against
       defendants for negligence. The court dismissed her complaint for failure to file within the
       statute of limitations. Teresa did not appeal this dismissal. She then sought to intervene in
       plaintiff’s suit against defendants. The trial court denied appellant’s petition to intervene,
       finding her claim was barred by the doctrine of res judicata. The issue presented in this case is
       whether the dismissal of appellant’s untimely filed suit for damages acts to bar, on res judicata
       grounds, her intervention in the employer’s timely filed case. We hold it does not and, for the
       following reasons, the judgment of the circuit court is reversed, and the cause remanded.

¶2                                         BACKGROUND
¶3         Appellant, Teresa, was injured on August 17, 2012, at a Blue Cross and Blue Shield
       building in Chicago while she was employed by plaintiff, A&R Janitorial. Blue Cross and Blue
       Shield had hired A&R Janitorial to perform custodial services, and appellant was one of
       plaintiff’s employees. Blue Cross and Blue Shield was performing renovations to that building
       and contracted Pepper Construction Co. to replace carpeting, among other work. Pepper
       Construction Co. subcontracted the task of replacing carpets to Perez & Associates. While
       appellant was cleaning, she was injured when a desk fell on her. The desk had been moved by
       Perez & Associates in the course of replacing the carpets.
¶4         Appellant filed a workers’ compensation claim against plaintiff and was awarded relief.
       That claim is currently under appeal. To date plaintiff has paid appellant over $342,000 in
       workers’ compensation benefits. The Act also allows an employer to seek indemnification
       from a third-party who may be a cause of the injury for the sums it is required to pay its


                                                    -2-
     employee. The Act allows an injured employee whose injuries are covered under the Act to
     also file a claim against a third party for common law damages, and the employer is entitled to
     a portion of those damages recovered by the employee equal to the amount paid by the
     employer to the employee for that claim:
              “Where the injury or death for which compensation is payable under this Act was
              caused under circumstances creating a legal liability for damages on the part of some
              person other than his employer to pay damages, then legal proceedings may be taken
              against such other person to recover damages notwithstanding such employer’s
              payment of or liability to pay compensation under this Act.” Id.
     The employer is entitled to a portion of those damages equal to the amount paid by the
     employer to the employee for that claim. Id. (“from the amount received by such employee or
     personal representative there shall be paid to the employer the amount of compensation paid or
     to be paid by him to such employee”).
¶5       A party in Illinois may commence a personal injury action “within 2 years next after the
     cause of action accrued.” 735 ILCS 5/13-202 (West 2016). As of May 17, 2014, appellant
     failed to file a claim against defendants. If the employee fails to file a claim three months prior
     to the expiration of the statute of limitations, the Act allows an employer to step into the
     employee’s shoes to file a claim for indemnification for the payments it is liable for under the
     Act and a claim for the employee’s common law damages. The Act provides that if an
              “employee or his personal representative fails to institute a proceeding against such
              third person at any time prior to 3 months before such action would be barred, the
              employer may in his own name or in the name of the employee, or his personal
              representative, commence a proceeding against such other person for the recovery of
              damages on account of such injury or death to the employee, and out of any amount
              recovered the employer shall pay over to the injured employee or his personal
              representatives all sums collected from such other person by judgment or otherwise in
              excess of the amount of such compensation paid or to be paid under this Act, including
              amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act, and costs,
              attorney’s fees and reasonable expenses as may be incurred by such employer in
              making such collection or in enforcing such liability.” 820 ILCS 305/5(b) (West 2016).
     Plaintiff, as subrogee of appellant’s claim, timely filed its complaint against all of the named
     defendants on August 14, 2014. In November 2014, Blue Cross and Blue Shield Association
     was voluntarily dismissed from plaintiff’s subrogation action. In December 2014, Pepper
     Construction Group, LLC, and CBRE, Inc. were also voluntarily dismissed from the
     subrogation action. This left Pepper Construction Co., Perez & Associates, Inc., and Perez
     Carpet as the only remaining defendants (collectively, defendants).
¶6       On June 15, 2015, more than two years after her injury, appellant filed her own personal
     injury action against Pepper Construction Co., Perez & Associates, Inc., Interface America,
     Inc., and Blue Cross and Blue Shield Association. Appellant claimed her injuries resulted from
     the construction of an improvement to real property, which would be subject to a four year
     statute of limitations period. See 735 ILCS 5/13-214(a) (West 2016) (“Actions based upon tort
     *** against any person for an act or omission of such person in the *** construction of an
     improvement to real property shall be commenced within 4 years from the time the person
     bringing an action, or his or her privity, knew or should reasonably have known of such act or
     omission.”). The trial court dismissed appellant’s claim without prejudice on December 18,

                                                  -3-
       2015. Appellant subsequently filed her first amended complaint on April 28, 2016. On
       September 12, 2016, the court dismissed this claim with prejudice for failure to file within the
       statute of limitations, finding appellant’s injury was not the result of construction work and
       therefore subject to a two year statute of limitations. The court entered a finding under Illinois
       Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason to delay
       enforcement or appeal of its decision to dismiss appellant’s claim. No appeal was taken from
       this dismissal.
¶7         On November 10, 2016, appellant filed a petition to intervene in this case brought by her
       employer. In her petition, appellant claims she would not be adequately represented by
       plaintiff. Appellant’s ability to intervene in the present case turns on the Code of Civil
       Procedure’s requirements for intervention as of right and permissive intervention:
                    “Upon timely application anyone shall be permitted as of right to intervene in an
               action: *** when the representation of the applicant’s interest by existing parties is or
               may be inadequate and the applicant will or may be bound by an order or judgment in
               the action ***.” 735 ILCS 5/2-408(a) (West 2016).
                    “Upon timely application anyone may in the discretion of the court be permitted to
               intervene in an action: (1) when a statute confers a conditional right to intervene; or (2)
               when an applicant’s claim or defense and the main action have a question of law or fact
               in common.” 735 ILCS 5/2-408(b) (West 2016).
       Here appellant sought to intervene as of right, claiming she was not being adequately
       represented because plaintiff was only pursuing enough damages for indemnification and not
       the maximum amount recoverable for her injuries. Appellant attached a proposed amended
       complaint for plaintiff’s subrogation suit with additional counts seeking damages for her pain
       and suffering in addition to plaintiff’s indemnification.
¶8         In plaintiff’s response to appellant’s petition to intervene, plaintiff argued appellant’s
       workers’ compensation claim is not fully resolved and that if appellant is found totally
       disabled, then plaintiff could owe appellant for the rest of her lifetime. Plaintiff’s contention
       was that because of this increased risk it faced, it has every incentive to seek the maximum
       amount of damages. If plaintiff did not seek the maximum amount of damages then it risked
       not being fully indemnified. Defendants replied to appellant’s petition, arguing claim
       preclusion based on her suit against them for the same cause of action being dismissed on the
       merits for failure to file within the statute of limitations.
¶9         On December 20, 2016, the trial court heard arguments on appellant’s petition to intervene
       and to file an amended complaint. At the hearing, appellant claimed res judicata should not bar
       her intervention here because a dismissal for failure to file within the statute of limitations
       should not constitute a judgment on the merits for purposes of res judicata. Pepper
       Construction Co. argued claim preclusion did bar her claim, relying primarily on Sankey
       Brothers, Inc. v. Guilliams, 152 Ill. App. 3d 393 (1987). The court denied appellant’s petition
       to intervene, finding Sankey Brothers, Inc., supported applying res judicata to bar appellant’s
       claim. The court issued an order on January 31, 2017, under Illinois Supreme Court Rule
       304(a) (eff. Mar. 8, 2016), that its December 20, 2016, order was final and appealable, and
       allowed the case between plaintiff and defendants to continue. Appellant timely filed her
       appeal of the trial court’s denial of her petition to intervene.
¶ 10       Plaintiff then sought to amend its complaint to pursue recovery of damages for appellant’s
       pain and suffering, and loss of enjoyment of life. On July 26, 2017, the trial court ruled plaintiff

                                                    -4-
       could pursue those noneconomic damages. Appellant then sought to have plaintiff’s counsel
       disqualified for a conflict of interest, under a theory that plaintiff’s counsel could not
       simultaneously represent plaintiff against appellant in a workers’ compensation claim while
       also representing plaintiff seeking appellant’s non-economic damages against defendants. A
       hearing on the motion was held on August 4, 2017. At the hearing, plaintiff’s counsel argued
       there was no conflict of interest, stating: “I don’t represent Teresa ***. I never represented
       her.” The court found “he does not represent [appellant]. He can only present evidence of
       damages that would satisfy his lien and if there was any excess it would go over to [appellant].”
       The court denied appellant’s motion to disqualify plaintiff’s counsel based on its finding
       plaintiff’s counsel only represented plaintiff and not appellant.
¶ 11       While this case was pending on appeal, plaintiff and defendant reached a settlement
       agreement where defendants agreed to pay plaintiff $850,000. On September 22, 2017, the trial
       court entered an order dismissing with prejudice plaintiff’s subrogation case against
       defendants because the controversy between the parties had been resolved, subject to the
       outcome of this appeal. Plaintiff appeals from the order denying her petition to intervene.

¶ 12                                           ANALYSIS
¶ 13       The issue in this appeal is whether the trial court abused its discretion by denying
       appellant’s petition to intervene. Defendants argue application of res judicata bars appellant’s
       intervention in this case, while appellant maintains the doctrine of res judicata does not bar
       intervention. Appellant claims she has a right to intervene in this case because her interests are
       not adequately represented by plaintiff.
¶ 14       As a preliminary matter, we note appellant attached to her reply brief a copy of her motion
       to remove plaintiff’s counsel, the transcript of the hearing on that motion, and the trial court’s
       order denying the motion. Defendants have filed a motion to strike appellant’s exhibits or, in
       the alternative, to consider those exhibits along with exhibits defendants attached to their
       motion. We denied defendants’ motion to strike appellant’s attachments and ordered that
       defendants’ additional attachments will be considered. Defendants attached to their motion a
       copy of the trial court’s order dismissing this case with prejudice and a copy of the settlement
       agreement entered between plaintiff and defendants. Ordinarily attachments and exhibits to
       briefs are not the proper means of supplementing the record. See People v. Garvin, 2013 IL
       App (1st) 113095, ¶ 23. Here, defendants have not argued against the accuracy of appellant’s
       exhibits. In appellant’s response to defendants’ motion to strike appellant’s attachments,
       appellant argued both her exhibits and defendants’ exhibits should be considered. She also did
       not contest the accuracy of defendants’ exhibits.
               “In an instance such as this no sound reason exists to deny judicial notice of public
               documents which are included in the records of other courts and administrative
               tribunals. (McCormick, Evidence sec. 330, at 766 (2d ed. 1972).) Such documents fall
               within the category of readily verifiable facts which are capable of ‘instant and
               unquestionable demonstration.’ [Citation.]” May Department Stores Co. v. Teamsters
               Union Local No. 743, 64 Ill. 2d 153, 159 (1976).
       Therefore, we will take judicial notice of defendants’ exhibits attached to their motion as well
       as appellant’s exhibits.



                                                   -5-
¶ 15                                         Standard of Review
¶ 16       The decision to allow appellant to intervene is at the sound discretion of the trial court and
       we review the decision for an abuse of discretion. Sankey Brothers, Inc., 152 Ill. App. 3d at
       397. “The decision to allow or deny intervention, whether permissive or as of right, is a matter
       of sound judicial discretion that will not be reversed absent an abuse of that discretion.”
       Argonaut Insurance Co. v. Safway Steel Products, Inc., 355 Ill. App. 3d 1, 7 (2004). A trial
       court abuses its discretion when “no reasonable person would take the view adopted by the trial
       court.” Id. “If a trial court’s decision rests on an error of law, then it is clear that an abuse of
       discretion has occurred, as it is always an abuse of discretion to base a decision on an incorrect
       view of the law.” North Spaulding Condominium Ass’n v. Cavanaugh, 2017 IL App (1st)
       160870, ¶ 46.
¶ 17       Here the trial court’s interpretation of the doctrine of res judicata was the basis for its
       ruling denying appellant’s petition. Application of res judicata concerns a question of law that
       we review de novo. Lelis v. Board of Trustees of the Cicero Police Pension Fund, 2013 IL App
       (1st) 121985, ¶ 13. Therefore, we review de novo the trial court’s application of res judicata as
       a bar to appellant’s intervention, while we review for abuse of discretion the trial court’s
       overall judgment to deny appellant’s petition to intervene.

¶ 18                                     Res Judicata and Intervention
¶ 19        The doctrine of res judicata, also known as claim preclusion, is an equitable doctrine that
       prevents a party from filing the same claim against the same party after a prior adjudication on
       the merits. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335 (1996) (“For the doctrine of
       res judicata to apply, three requirements must be met: (1) there was a final judgment on the
       merits rendered by a court of competent jurisdiction; (2) there was an identity of cause of
       action; and (3) there was an identity of parties or their privies.”). In the present case, appellant
       filed a claim against defendants in June 2015, over two years after her August 17, 2012, injury.
       The court dismissed appellant’s case with prejudice for failure to file her claim within the
       statute of limitations, and appellant did not appeal.
¶ 20        Appellant subsequently sought to intervene in plaintiff’s subrogation suit against
       defendants, based on the same cause of action (the August 17, 2012, workplace injury). The
       trial court found appellant already filed a claim over the same cause of action against
       defendants and the matter was adjudicated with a final judgment on the merits. The trial court
       denied appellant’s petition for intervention based on a finding that application of the doctrine
       of res judicata barred appellant’s intervention in her employer’s subrogation suit. In reaching
       this ruling, the trial court relied heavily on Sankey Brothers, Inc., 152 Ill. App. 3d 393. Sankey
       Brothers, Inc., is instructive. However, Sankey does not control the outcome here because it is
       factually distinguishable.
¶ 21        In Sankey, the petitioner-intervenor, Osborne, was employed performing road work when
       he was hit by a truck. Id. at 394. Osborne was employed by a subcontractor hired by the general
       contractor, Sankey Brothers, Inc. Osborne filed a workers’ compensation claim against his
       employer-subcontractor for the injury, which occurred on October 20, 1981. On October 14,
       1983, Sankey filed its own suit against the truck driver and the corporation that owned the
       truck because the employee had not filed his own suit against the defendants within three
       months from the expiration of the statute of limitations. Unlike this case, in Sankey, the
       employer filed a complaint as its insurance company’s subrogee seeking only indemnification

                                                    -6-
       for workers’ compensation benefits it had to pay to Osborne. Id. at 395. On October 19, 1983,
       Osborne filed a suit, intending to sue the corporation that owned the truck, but he named the
       incorrect party. Id. at 394. On December 20, 1983, an Industrial Commission arbitrator entered
       on order finding Osborne completely disabled and ordered his employer subcontractor to pay
       him an amount per week for life. That decision was under appeal pending the Sankey court’s
       decision. Id. Osborne filed an amended complaint in September 1984 which named the correct
       corporation as defendant, but that action was dismissed in July 1985 because the defendant was
       not served with process within the relevant statute of limitations. Id. Osborne did not appeal.
       Id. at 394-95. In October 1985, Osborne filed a petition for leave to intervene in Sankey’s suit
       to assert his rights under section 5(b) of the Act. Id. at 395. The trial court denied his petition
       and Osborne appealed, asserting he was a necessary party to the suit.
¶ 22       The appellate court affirmed, but not simply because Osborne had his individual suit
       dismissed and res judicata barred subsequent suit on his part. The issue was whether Osborne
       had an interest in his employer’s subrogation suit. Thus, the court held that it must review the
       petition for intervention under the provisions for intervention in the Code of Civil Procedure:
       “The lack of any specific guidance in the Workers’ Compensation Act or in the case law
       interpreting it, with respect to intervention under the facts of the present case, renders
       applicable the provisions of the Code of Civil Procedure relating to intervention.” Id. at 397.
       The court held “Osborne was barred by both the applicable statute of limitation and the
       doctrine of res judicata from maintaining a personal injury action against defendants at the
       time that he sought to intervene in this case.” Id. at 398. The court determined that Osborne did
       not have an interest in the suit because he had “no absolute right to intervene” by statute and
       because Osborne’s tort claims would be “barred by the doctrine of res judicata and the relevant
       statute of limitation.” Id. at 399. The primary concern of the court was the propriety of
       exposing the third party to the worker’s common law injury claims, which were time-barred.
¶ 23       In this case, however, appellant’s employer timely filed its suit seeking more than simply
       indemnification; the employer also sought damages for appellant’s pain and suffering. In
       contrast to Sankey, where the statute of limitations for the employee’s damages for pain and
       suffering had expired, in this case the employer timely filed a complaint seeking damages for
       pain and suffering. Therefore, appellant has an interest in this lawsuit. 820 ILCS 305/5(b)
       (West 2016) (“the employer shall pay over to the injured employee *** all sums collected from
       such other person by judgment or otherwise in excess of the amount of such compensation paid
       or to be paid under this Act”); see also Bernardini v. Home & Automobile Insurance Co., 64 Ill.
       App. 2d 465, 467 (1965) (“in Illinois causes of action for personal torts are not assignable. ***
       Subrogation operates only to secure contribution and indemnity whereas an assignment
       transfers the whole claim. *** The subrogation does not deprive the insured of a recovery for
       pain and suffering ***.”). Appellant’s action was not assigned to plaintiff; plaintiff simply
       filed a subrogation suit and appellant is entitled to any damages exceeding indemnification.
       Further, plaintiff was not a party to appellant’s untimely filed action. Because plaintiff was not
       a party to that action, res judicata cannot bar its claim here. See Rein, 172 Ill. 2d at 334-35 (for
       res judicata to apply to an action, there must be an identity of parties). Certainly if plaintiff had
       been named a party to that action, it would have asserted that it had a timely filed complaint for
       damages as subrogee that was already pending. We conclude appellant had an interest in this
       case, unlike the employee in Sankey. Sankey Brothers Inc., 152 Ill. App. 3d at 399; see also



                                                     -7-
       Bernardini, 64 Ill. App. 2d at 467. Therefore, Sankey does not control the outcome of this case,
       and we find res judicata does not bar appellant’s intervention.
¶ 24       Whether appellant may intervene turns on the intervention provisions of the Code of Civil
       Procedure. While the Act makes an explicit provision for an employer to intervene in an
       employee’s suit, the Act is silent as to the ability of the employee to intervene once the
       employer has filed a subrogation suit. Therefore, we conclude we must look to the Code of
       Civil Procedure to determine whether intervention is warranted. The legislature implemented
       the Act
               “against the background of an existing legislative scheme that included section
               1-108(b) of the Code of Civil Procedure [citation]. That statute expressly provides that
               where proceedings are governed by some other statute, the other statute controls to the
               extent it regulates procedure, but that article II of the Code, also known as the Civil
               Practice Law [citation], applies to matters of procedure not regulated by the other
               statute.” Madison Two Associates v. Pappas, 227 Ill. 2d 474, 494 (2008).
       The Act does not confer a statutory right to intervene upon an employee if the employer has
       filed against the third party as subrogee of the employee after the employee has failed to file
       suit within the three month window prior to the expiration of the statute of limitations. See 820
       ILCS 305/5(b) (West 2016). Given that the legislature failed to provide specific procedures for
       intervention in an employer’s subrogation suit, section 2-408 of the Code of Civil Procedure
       governs whether an employee can intervene in an employer’s subrogation suit. See Madison
       Two Associates, 227 Ill. 2d at 494-95 (“In light of this law, we must presume that when the
       General Assembly enacted the tax objection provisions of the Property Tax Code without
       including a particular provision addressed to intervention in circuit court, it intended the matter
       to be governed by the intervention provisions set forth in article II of the Code of Civil
       Procedure.”). Section 2-408 establishes the requirements for intervention by right and
       permissive intervention:
                   “Upon timely application anyone shall be permitted as of right to intervene in an
               action: *** when the representation of the applicant’s interest by existing parties is or
               may be inadequate and the applicant will or may be bound by an order or judgment in
               the action ***.” 735 ILCS 5/2-408(a) (West 2016).
                   “Upon timely application anyone may in the discretion of the court be permitted to
               intervene in an action: (1) when a statute confers a conditional right to intervene; or (2)
               when an applicant’s claim or defense and the main action have a question of law or fact
               in common.” 735 ILCS 5/2-408(b) (West 2016).
¶ 25       Defendants argue that DeLuna v. Treister, 185 Ill. 2d 565 (1999), controls the issue of
       whether appellant may intervene in the present suit. In DeLuna, the administrator of an estate
       filed a medical malpractice claim against the defendant doctor and hospital. Id. at 568. The
       defendant moved for summary judgment, and the plaintiff failed to attach an affidavit as
       required by section 2-622 of the Code of Civil Procedure. Id. at 569; see also 735 ILCS 5/2-622
       (West 2016). The trial court dismissed the plaintiff’s case with prejudice, and the dismissal
       was upheld by our supreme court. DeLuna, 185 Ill. 2d at 569-70. After this dismissal, a new
       administrator to the estate refiled the medical malpractice claim against the hospital and
       doctor. The defendants both moved to dismiss this new claim, arguing that application of the
       doctrine of res judicata barred the newly filed claim. The issue before our supreme court was
       whether the dismissal for failure to comply with section 2-622 served as a dismissal on the

                                                    -8-
       merits. Id. at 574. However, the issue of whether a party barred from filing its own claim could
       intervene in a previously timely filed subrogation suit was not before the DeLuna court. The
       issue before us here does not concern whether the earlier dismissal for failure to file within the
       statute of limitations was a dismissal on the merits, but whether the trial court abused its
       discretion in denying plaintiff’s petition to intervene. Therefore, DeLuna does not control the
       outcome of this case.
¶ 26       Here appellant maintains she has a right to intervene in plaintiff’s subrogation suit against
       defendants, relying on Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill. 2d
       273 (1954), and Echales v. Krasny, 12 Ill. App. 2d 530 (1957). We find both cases inapposite.
       Both cases involved versions of the Act found unconstitutional under Illinois’s prior
       constitution. Neither case involved a petitioner who initially filed a claim past the statute of
       limitations, had that claim dismissed, failed to seek appeal, and then attempted to intervene in a
       timely filed subrogation suit.
¶ 27       In Geneva Construction Co., an employee of Geneva Construction Co. was injured in the
       course of his employment and was awarded compensation under the “Workmen’s
       Compensation Act.” Geneva Construction Co., 4 Ill. 2d at 275; Ill. Rev. Stat. 1947, ch. 48,
       ¶ 166. Geneva Construction Co. then sued the defendant third-party tortfeasor to recover the
       compensation it paid to the employee. While the suit was pending, the provision of the
       Workmen’s Compensation Act that Geneva Construction Co. brought suit under was declared
       unconstitutional by the Illinois Supreme Court in a separate case. See Grasse v. Dealer’s
       Transport Co., 412 Ill. 179 (1952). Then, the employee filed a petition for leave to intervene,
       which the trial court allowed. Geneva Construction Co., 4 Ill. 2d at 276.
¶ 28       Geneva Construction Co. does not stand for the principle that an employee has a right to
       intervene in her employer’s subrogation suit. The court addressed two issues: (1) Whether an
       employer could recover from a third-party tortfeasor compensation the employer paid an
       injured employee even when the provision of the Act the employer sued under was declared
       unconstitutional (id. (“In determining the propriety of the judgment of the Appellate Court we
       shall consider first whether plaintiff Geneva Construction Company could properly recover
       from defendant Martin Transfer and Storage Company the amount of workmen’s
       compensation paid an employee as a result of defendant’s negligence.”)) and 2) Whether an
       amended complaint filed by an employee-intervenor outside the statute of limitations related
       back to a timely filed subrogation suit of the employer. Id. at 286 (“We turn, then, to the second
       question—whether the claim of plaintiff [employee], which was first asserted by an
       amendment to the complaint *** is barred by the Statute of Limitations.”). The Geneva court
       concluded that the amended complaint related back to the employer’s timely filed complaint,
       consistent with the Civil Practice Act. Id. at 289. Whether the employee had a right to
       intervene was not before the Geneva court. The trial court in Geneva had already exercised its
       discretion to allow the employee to join in the suit. Our supreme court was not reviewing that
       exercise of discretion; instead, it reviewed whether the amended complaint the
       petitioner-intervenor filed related back to his employer’s timely filed subrogation suit.
¶ 29       Appellant’s reliance on Echales is similarly misplaced. In Echales, an employee died from
       injuries sustained in the course of employment. In September 1950, the employer brought suit
       under the Workmen’s Compensation Act against the third-party tortfeasors to recover
       compensation paid by him to the widow and minor children of his employee. Echales, Ill. App.
       2d at 531. In 1952 the section of the Workmen’s Compensation Act the plaintiff sued under

                                                   -9-
       was declared unconstitutional by our supreme court in Grasse, while the Echales litigation was
       pending. In 1955 the plaintiff-employer filed a motion to allow the administratrix of the
       employee’s estate to intervene as an additional party plaintiff and to amend the original
       complaint. That motion was denied and the cause dismissed. Id. Just as in the Geneva case, the
       motion to intervene and amend the complaint in Echales was dismissed because the one-year
       statute of limitations for wrongful death had run. Id. at 534-35. The intervenor in Echales never
       filed a separate action that was dismissed prior to petitioning to intervene in the employer’s
       suit. Echales itself noted the factual parallel between that case and the Geneva case.
                “We think the Geneva case is parallel factually with the instant case and is decisive of
                the right of plaintiffs to amend their complaint and for the administratrix to intervene.
                In the Geneva case the suit, as here, was brought under Section 29 of the Workmen’s
                Compensation Act by the employer. After the decision in the Grasse case holding the
                first paragraph of Section 29 of the Workmen’s Compensation Act unconstitutional,
                the plaintiff in the Geneva case sought leave to have the injured employee intervene
                against the thirdparty tort feasor, the injury having occurred more than four years
                before the employee sought to intervene. The motion to intervene was opposed on the
                ground that the Statute of Limitations under the Injuries Act had run, and the
                employee’s right was therefore barred.” Id. at 534.
       The issue before the Echales court was whether application of the statute of limitations barred
       intervention and amendment of a timely filed complaint. The Echales court concluded that
       “justice requires that in the instant case the parties be permitted to amend their pleadings and
       the administratrix allowed to intervene, and it was error for the court to deny plaintiffs leave to
       file their tendered amended complaint.” Id. at 535. The Echales court did not create an absolute
       right of intervention for an injured employee. Moreover, the present case is factually
       distinguishable. Here the issue is not the relation back of an amendment to a timely filed
       complaint, but whether appellant meets the statutory conditions for intervention.
¶ 30        Under the Code of Civil Procedure, the party seeking intervention
                “shall present a petition setting forth the grounds for intervention, accompanied by the
                initial pleading or motion which he or she proposes to file. In cases in which the
                allowance of intervention is discretionary, the court shall consider whether the
                intervention will unduly delay or prejudice the adjudication of the rights of the original
                parties.” 735 ILCS 5/2-408(e) (West 2016).
       In ruling on a petition to intervene as of right, the “trial court’s discretion is limited to
       determining timeliness, inadequacy of representation and sufficiency of interest; once these
       threshold requirements have been met, the plain meaning of the statute directs that the petition
       be granted.” City of Chicago v. John Hancock Mutual Life Insurance Co., 127 Ill. App. 3d 140,
       144 (1984). We thus turn to the trial court’s exercise of its discretion to deny appellant’s
       petition to intervene. See In re Restoration of Civil Rights & Issuance of a Firearm Owner’s
       Identification Card to Bailey, 2016 IL App (5th) 140586, ¶ 21 (“[W]hen a party petitions for
       intervention as of right, section 2-408(a)(2) limits the court’s analysis to a determination of the
       timeliness of the application, whether there has been inadequacy of representation, and the
       sufficiency of the applicant’s position in the proceedings. [Citations.] If these threshold
       requirements are met, then, under the plain meaning of the statute, the petition to intervene
       shall be granted.”).


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¶ 31                          Failure to Apply Statutory Factors for Intervention
¶ 32       A party has a right to intervene upon a showing that “representation of the applicant’s
       interest by existing parties is or may be inadequate and the applicant will or may be bound by
       an order or judgment in the action.” 735 ILCS 5/2-408(a) (West 2016). When the court
       dismissed appellant’s petition to intervene, the court failed to determine whether appellant
       timely filed her petition, whether appellant’s interests are being adequately represented by
       plaintiff, or whether appellant will be bound by the judgment. Appellant contends plaintiff
       cannot adequately represent her interests based on her argument that plaintiff has an incentive
       to settle for an amount less than or equal to what plaintiff paid to appellant in the workers’
       compensation claim. On appeal, plaintiff claims it will adequately represent appellant’s
       interests because plaintiff may not be fully indemnified if it does not pursue maximum
       damages. Conversely, at a hearing on appellant’s motion to disqualify plaintiff’s counsel,
       appellant claimed plaintiff’s counsel had a conflict of interest because counsel represents
       plaintiff in the appeal of the workers’ compensation claim and not her interest. Plaintiff’s
       counsel refuted this claim by stating in open court that he did not represent appellant, had never
       represented appellant, and only represented plaintiff in this case. This statement is incongruent
       with plaintiff’s assertion that it has every incentive to pursue maximum damages. The trial
       court failed to make a finding as to whether appellant’s interests are adequately protected by
       plaintiff.
¶ 33       The trial court abused its discretion because the court did not apply the applicable law—the
       intervention provisions of the Code of Civil Procedure. Sankey Brothers, Inc., 152 Ill. App. 3d
       at 397; 735 ILCS 5/2-408 (West 2016). Application of the wrong legal standard is an abuse of
       discretion. North Spaulding Condominium Ass’n, 2017 IL App (1st) 160870, ¶ 46 (“If a trial
       court’s decision rests on an error of law, then it is clear that an abuse of discretion has occurred,
       as it is always an abuse of discretion to base a decision on an incorrect view of the law.”).
       Therefore, we reverse the trial court’s ruling and remand for further proceedings consistent
       with this opinion. See Madison Two Associates, 227 Ill. 2d at 496 (“Because the circuit court
       ruled as a matter of law and did not reach the question of whether the requirements for
       intervention under section 2-408 of the Code of Civil Procedure [citation] would otherwise
       have been satisfied under the particular facts of these cases, the appellate court also acted
       properly when it remanded the causes to the circuit court for a hearing on the intervention
       petitions.”).
¶ 34       We note plaintiff argued on appeal that if appellant was permitted to intervene, she should
       nonetheless not be allowed to control the litigation. In cases where a court exercises its
       discretion to grant a party’s petition to intervene,
                “[a]n intervenor shall have all the rights of an original party, except that the court may
                in its order allowing intervention, whether discretionary or a matter of right, provide
                that the applicant shall be bound by orders or judgments, theretofore entered or by
                evidence theretofore received, that the applicant shall not raise issues which might
                more properly have been raised at an earlier stage of the proceeding, that the applicant
                shall not raise new issues or add new parties, or that in other respects the applicant shall
                not interfere with the control of the litigation, as justice and the avoidance of undue
                delay may require.” 735 ILCS 5/2-408(f) (West 2016).
       Thus, if on remand the trial court determines the factors for intervention are met under the
       Code of Civil Procedure, the trial court has discretion to limit how the intervenor may

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       participate in the litigation.

¶ 35                                          CONCLUSION
¶ 36       For the foregoing reasons, the order of the circuit court of Cook County denying
       appellant’s petition to intervene is reversed. Consequently, the circuit court’s order dismissing
       the matter with prejudice is also reversed, and this cause is remanded for further proceedings
       consistent with this opinion.

¶ 37       Reversed and remanded.




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