                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




           People ex rel. Department of Labor v. Valdivia, 2011 IL App (2d) 100998




Appellate Court            THE PEOPLE ex rel. THE DEPARTMENT OF LABOR, Plaintiff, v.
Caption                    PEDRO VALDIVIA, Individually and d/b/a V&A Landscaping,
                           Defendant and Third-Party Plaintiff-Appellant (Pasqualino Divito,
                           Individually and d/b/a Patnick Construction, Inc., Third-Party Defendant-
                           Appellee).



District & No.             Second District
                           Docket No. 2-10-0998


Filed                      August 16, 2011


Held                       In an action alleging that defendant subcontractor violated the Prevailing
(Note: This syllabus       Wage Act, the trial court properly dismissed the subcontractor’s third-
constitutes no part of     party complaint against the general contractor seeking contribution for
the opinion of the court   any judgment entered against it based on the allegation that the general
but has been prepared      contractor failed to comply with the notice requirements of the Act.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-L-1345; the
Review                     Hon. John T. Elsner, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Lance C. Ziebell, of Lavelle Law, Ltd., of Palatine, for appellant.
Appeal
                           David N. Michael and Joseph P. Bonavita, both of Gould & Ratner LLP,
                           of Chicago, for appellee.


Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Birkett concurred in the judgment and opinion.




                                             OPINION

¶1         The Department of Labor (Department) filed a complaint against defendant,
        subcontractor Pedro Valdivia, individually and doing business as V&A Landscaping
        (Valdivia), alleging that he violated the Prevailing Wage Act (Prevailing Wage Act or Act)
        (820 ILCS 130/1 et seq. (West 2004)). Valdivia filed a two-count third-party complaint
        against general contractor Pasqualino Divito, individually and doing business as Patnick
        Construction, Inc. (Divito), seeking the full amount of any judgment entered against Valdivia
        and in favor of the Department. Valdivia appeals from the trial court’s dismissal of the
        second count. For the following reasons, we affirm.

¶2                                        I. BACKGROUND
¶3           In June 2004, the Village of Woodridge, Illinois, accepted Divito’s bid on its “Suburban
        Estates Water Main Improvements” project. The bid included a cost of $85,638 for “sodding,
        special.” In September 2004, Divito entered into an oral agreement with Valdivia in which
        Valdivia would install the topsoil and sod for the project for $44,493.75. Valdivia completed
        his work on the project in November 2004. Valdivia paid his employees his standard wage
        and overtime rates. Divito paid Valdivia the agreed amount of $44,493.75.
¶4           On February 4, 2005, the Department sent Valdivia a letter stating that its audit showed
        that he failed to pay the prevailing wage to his employees on the project and demanding
        payment within 10 days on behalf of those employees. Valdivia’s attorney responded with
        letters to both the Department and Divito, disclaiming any liability under the Prevailing
        Wage Act and asserting that Divito was liable for the back wages due to his failure to inform
        Valdivia of the Act’s applicability to the project and his failure to post the prevailing wage
        rates at the jobsite.
¶5           On March 15, 2005, the Department sent Divito a letter stating that it would hold him
        responsible for Valdivia’s failure to pay the back wages owed to Valdivia’s employees.
        Divito’s attorney responded by letter to the Department disclaiming any liability under the
        Prevailing Wage Act. On March 29, the Department sent Divito a letter indicating that it had

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       a right to pursue a bond claim on his contractor bond for the project. The Department gave
       Divito 10 days to respond. Thereafter, the Department made no more contact with Divito.
¶6          On October 23, 2009, the Department filed against Valdivia a complaint alleging that
       Valdivia violated the Prevailing Wage Act by failing to pay the prevailing wage to his
       employees on the project. It sought payment of back wages of $78,185.55; a statutory penalty
       of $15,637.11; and statutory punitive damages of $14,386.04.
¶7          In addition to filing an answer and affirmative defense, Valdivia filed a two-count, third-
       party complaint against Divito, alleging that Divito violated section 4 of the Prevailing Wage
       Act by failing to notify Valdivia that the Act applied and by failing to post the prevailing
       wage rates on the jobsite (820 ILCS 130/4 (West 2004)). Count I, entitled “Violation of the
       Illinois Prevailing Wage Act,” alleged that Divito’s failure to comply with the Act’s notice
       requirement subjected Valdivia to suit by the Department. Count II, entitled “Fraudulent
       Concealment,” alleged that Divito knew that the Act was applicable to the project but did not
       notify Valdivia because Divito intended to induce Valdivia to enter into the landscaping
       contract for a price less than he would have agreed to had he known that he would be
       required to pay the prevailing wage. Both counts sought as relief Divito’s payment of the full
       amount of any judgment entered against Valdivia in the underlying suit.
¶8          Divito filed a combined motion to dismiss the third-party complaint pursuant to section
       2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2010)). The trial
       court granted the motion with respect to count I, dismissing it with prejudice. It is not at issue
       in this appeal. The court denied Divito’s motion with respect to count II. The court stated that
       count II, though entitled “Fraudulent Concealment,” was essentially a claim for contribution
       under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/1 et seq.
       (West 2010)). The court granted Divito leave to file a motion to reconsider or to provide
       supplemental authority as to count II. Divito filed a motion to reconsider; Valdivia
       responded; and Divito replied. On August 19, 2010, the court heard argument and dismissed
       count II with prejudice. On September 2, the court entered an order modifying its August 19
       order to include a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26,
       2010). Valdivia timely appealed.

¶9                                          II. ANALYSIS
¶ 10       Valdivia argues that he stated a claim for contribution in count II of his third-party
       complaint and that the trial court erred in dismissing it. After construing count II as a claim
       for contribution, the trial court dismissed it for failure to state a claim. A cause of action
       should not be dismissed for failure to state a cause of action “unless it is clearly apparent that
       no set of facts can be proved that would entitle the plaintiff to relief.” Tedrick v. Community
       Resource Center, Inc., 235 Ill. 2d 155, 161 (2009) (reviewing dismissal pursuant to section
       2-615 of the Code (735 ILCS 5/2-615 (West 2010))). We take all well-pleaded facts as true
       and draw all reasonable inferences in favor of the nonmoving party. Tedrick, 235 Ill. 2d at
       161. Our review is de novo. Tedrick, 235 Ill. 2d at 161.
¶ 11       Section 2 of the Contribution Act provides for a right of contribution “where 2 or more
       persons are subject to liability in tort arising out of the same injury to person or property.”

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       740 ILCS 100/2(a) (West 2010). The same-injury requirement refers to “that which is
       incurred by the plaintiff, as opposed to any injury suffered by the parties seeking
       contribution.” People v. Brockman, 143 Ill. 2d 351, 371 (1991). Thus, to state a claim under
       the Contribution Act, a party must show that both he and the party from whom he seeks
       contribution are subject to liability in tort for the injury suffered by the plaintiff in the
       underlying suit. Vroegh v. J&M Forklift, 165 Ill. 2d 523, 529 (1995). Here, the underlying
       plaintiffs were Valdivia’s employees. See 820 ILCS 130/11 (West 2004) (provision of the
       Prevailing Wage Act stating that the Department has a right of action on behalf of any person
       with a right of action under this section). The injury they suffered was underpayment of
       wages. Therefore, the relevant inquiry is whether Valdivia showed that both he and Divito
       were subject to liability in tort for the underpayment of wages to Valdivia’s employees.
¶ 12        “Tort law *** applies in situations where society recognizes a duty to exist wholly apart
       from any contractual undertaking. Tort obligations are general obligations that impose
       liability when a person negligently, carelessly or purposely causes injury to others.” Collins
       v. Reynard, 154 Ill. 2d 48, 51 (1992). A tort duty can derive either from the common law or
       from statute. Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 452
       (1991). A statute may expressly create a tort duty. Rommel v. Illinois State Toll Highway
       Authority, 405 Ill. App. 3d 1124, 1128 (2010). Or, a tort duty may be inferred from a statute
       intended to protect human life or property. Rommel, 405 Ill. App. 3d at 1128; see, e.g.,
       Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995) (holding that the Illinois Domestic
       Violence Act of 1986 (750 ILCS 60/1 et seq. (West 1992)) imposed a duty on law
       enforcement to take reasonable steps to assist a person protected under that act); Doyle v.
       Rhodes, 101 Ill. 2d 1, 17 (1984) (holding that violation of a “safety statute” such as the Road
       Construction Injuries Act (Ill. Rev. Stat. 1981, ch. 121, ¶ 314 et seq.) can subject a party to
       liability in tort sufficient to satisfy the Contribution Act). But cf. Jodelis v. Harris, 118 Ill.
       2d 482, 487 (1987) (holding that the liability created by the Illinois Dramshop Act (Ill. Rev.
       Stat. 1979, ch. 43, ¶ 135) was “ ‘exclusive, sui generis nontort liability’ ” that did not satisfy
       the requirement of the Illinois Contribution Act (quoting Hopkins v. Powers, 113 Ill. 2d 206,
       211 (1986))).
¶ 13        Valdivia argues that the Prevailing Wage Act imposes a duty on general contractors and
       that violation of the Act’s requirements subjects a general contractor to liability in tort. The
       Act requires both general contractors and subcontractors on public-works projects to pay the
       prevailing wage to their employees. 820 ILCS 130/4 (West 2004). The policy behind the Act
       is to ensure that workers on public-works projects are paid the prevailing wage for their work
       and that public-works projects will therefore be completed efficiently and expeditiously. 820
       ILCS 130/1 (West 2004); People ex rel. Department of Labor v. Sackville Construction, Inc.,
       402 Ill. App. 3d 195, 198 (2010). Section 11 of the Act creates a right of action in those
       underpaid employees included within its scope, allowing them to claim back wages and
       punitive damages. 820 ILCS 130/11 (West 2004). The Act does not expressly create a tort
       duty, and a plain reading of the Act indicates that it was not intended to protect human life
       or property. Therefore, the Act cannot create a duty in tort. See Rommel, 405 Ill. App. 3d at
       1129 (holding that the Toll Highway Act (605 ILCS 10/1 et seq. (West 2008)) was a
       mechanism to finance construction and maintenance of highways and did not create a duty

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       to prevent crossover collisions because it was not designed to protect human life or property).
       Accordingly, even if Divito violated the Prevailing Wage Act, he was not subject to liability
       in tort within the meaning of the Contribution Act, and the trial court did not err in
       dismissing count II of the third-party complaint. See Vroegh, 165 Ill. 2d at 531 (holding that,
       because the contribution defendant had no duty to the underlying plaintiff, it was not subject
       to liability in tort within the meaning of the Contribution Act).
¶ 14        Valdivia specifically argues that section 4 of the Prevailing Wage Act imposed duties on
       Divito to notify Valdivia of the Act’s applicability to the project and to post the prevailing
       wage rates at the jobsite. Valdivia asserts that Divito’s violations of section 4’s requirements
       were the cause of Valdivia’s failure to pay his employees the prevailing wage, thus causing
       the injury suffered by Valdivia’s employees. According to Valdivia, therefore, Divito’s
       failure to comply with the Act rendered Divito liable in tort to Valdivia’s employees.
¶ 15        Divito initially responds that Valdivia forfeited his argument that Divito owed a duty to
       Valdivia’s employees, because he neither alleged such a duty in his third-party complaint nor
       argued to the trial court that such a duty existed. See In re Marriage of Holthaus, 387 Ill.
       App. 3d 367, 377 (2008) (arguments not raised in the trial court are forfeited on review). We
       agree that Valdivia did not allege in count II that Divito owed a duty to Valdivia’s
       employees. However, the trial court sua sponte construed count II for fraudulent concealment
       as a claim for contribution, and the parties briefed and argued the issue. In his written
       response to Divito’s motion to reconsider, Valdivia argued that Divito’s violations of the
       Prevailing Wage Act subjected Divito to liability in tort to both the State and Valdivia’s
       employees. Under the unique procedural history here, Valdivia did not forfeit his argument
       that Divito owed a duty to Valdivia’s employees, because the issue was thoroughly addressed
       by the parties and the court below. See Cambridge Engineering, Inc. v. Mercury Partners
       90 BI, Inc., 378 Ill. App. 3d 437, 453 (2007) (one purpose of the forfeiture rule is to prevent
       prejudicing a party who had no opportunity to argue the issue before the trial court).
¶ 16        Divito further responds that the posting requirement was not in effect in October and
       November 2004, when the underlying plaintiffs were underpaid. The 2004 version of the
       Prevailing Wage Act included two section 4s. One reflected amendment by Public Acts 93-
       15, § 905 (eff. June 11, 2003) and 93-16, § 5 (eff. Jan. 1, 2004), which were identical and
       added the posting requirement. The other reflected amendment by Public Act 93-38, § 5 (eff.
       June 1, 2004), which added the notice requirement. The language of section 5 of Public Act
       93-38 did not include the language adding the posting requirement. However, because the
       notice and posting requirements do not irreconcilably conflict, we give effect to both. See 5
       ILCS 70/6 (West 2010) (“Two or more Acts which relate to same subject matter and which
       are enacted by the same General Assembly shall be construed together in such manner as to
       give full effect to each Act except in case of an irreconcilable conflict.”).
¶ 17        We now address Valdivia’s argument that failure to comply with the notice requirement
       of section 4 of the Prevailing Wage Act subjected Divito to liability in tort to Valdivia’s
       employees because the lack of notice caused Valdivia not to pay the prevailing wage. Section
       4 of the Act requires both general contractors and subcontractors to pay the prevailing wage
       to all those “employed by them” on a public-works project. 820 ILCS 130/4 (West 2004).
       Section 4 additionally requires a general contractor to “insert into each subcontract *** a

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       written stipulation to the effect that not less than the prevailing rate of wages shall be paid
       to all *** performing work under the contract.” Pub. Act 93-38, § 5 (eff. June 1, 2004).
       However, notice is not a condition precedent to the obligation to pay the prevailing wage.
       See Sackville Construction, 402 Ill. App. 3d at 203 (holding that the failure of a public body
       to provide notice to a general contractor does not alleviate the obligation of the general
       contractor or its subcontractors to pay the prevailing wage to their employees). Neither is a
       general contractor a guarantor of payment for a subcontractor’s employees in the event that
       the subcontractor fails to pay the prevailing wage. Cement Masons Pension Fund v. William
       A. Randolph, Inc., 358 Ill. App. 3d 638, 645-46 (2005).
¶ 18        In Cement Masons, the plaintiffs were fringe-benefit-funds administrators who sued
       defendant, the general contractor on a public-works project, for its subcontractor’s failure to
       pay the prevailing wage. Cement Masons, 358 Ill. App. 3d at 639. The appellate court
       declined to expand the plain meaning of the Prevailing Wage Act and held that the Act did
       not allow a cause of action against a general contractor for its subcontractor’s violation.
       Cement Masons, 358 Ill. App. 3d at 646. This holding was the basis of the trial court’s
       dismissal here of count I of the third-party complaint, which alleged Divito’s violation of the
       Act. Although Valdivia does not appeal from the dismissal of count I, he makes much of the
       fact that Cement Masons was decided in June 2005, after the conduct at issue here occurred
       (in the fall of 2004). Nonetheless, the relevant language of the Act interpreted by the court
       in Cement Masons was the same as that in effect in 2004; thus, Cement Masons is apposite.
       We agree with Valdivia that Cement Masons does not directly address the issue presented
       here–the viability of a contribution claim. However, it is persuasive for the proposition for
       which we cite it–that a general contractor is not a guarantor of payment for its
       subcontractor’s employees.
¶ 19        Under the Prevailing Wage Act, Valdivia’s employees were entitled to payment of the
       prevailing wage from Valdivia, regardless of Divito’s notice to Valdivia. Accordingly,
       section 4’s notice requirement could not have created any duty owed by Divito to Valdivia’s
       employees, let alone one sounding in tort. See Sackville Construction, 402 Ill. App. 3d at 203
       (analyzing language from the 2006 version of the Act, which was identical to that in the 2004
       version, and holding that “the plain language of sections 1 and 4 requires payment of back
       wages at the prevailing rate regardless of any notice to the subcontractor that the Act
       applies”).
¶ 20        Valdivia also maintains that section 4’s requirement that a general contractor post the
       prevailing wages for the various crafts at the jobsite is for the benefit of all of the workers
       on a public-works project and, therefore, it created a duty owed by Divito to Valdivia’s
       employees. Section 4 requires a general contractor to “post, at a location on the project site
       of the public works that is easily accessible to the workers engaged on the project, the
       prevailing wage rates for each craft or type of worker.” Pub. Act 93-16, § 5 (eff. Jan. 1,
       2004). Although the posting requirement conceivably is for the benefit of the employees, the
       required posting merely informs the employees of what the prevailing wage rates are, not that
       they are entitled to receive them. Moreover, as discussed above, the intent to ensure that
       workers employed in public works are paid the prevailing wage simply does not sound in
       tort, because it has nothing to do with the prevention of personal injury or property damage.

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       See Rommel, 405 Ill. App. 3d at 1129 (holding that a statute not designed to protect human
       life or property did not create a duty).
¶ 21        In support of his proposition that the posting requirement created a duty, Valdivia relies
       solely on Brockman. In Brockman, the State filed a complaint against the owner-operators
       of a landfill for violations of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1979,
       Ch. 111½, ¶ 1001 et seq.). Brockman, 143 Ill. 2d at 358. The owner-operators filed a third-
       party complaint against their customers–various generators and transporters of waste
       deposited at the landfill. Brockman, 143 Ill. 2d at 359. The trial court dismissed the third-
       party complaint with prejudice, and the owner-operators appealed. Brockman, 143 Ill. 2d at
       360. Ultimately, the supreme court held that violation of the Environmental Protection Act
       could constitute liability in tort under the Contribution Act because, “[w]ithout question,
       third-party defendants had a duty not to contaminate the environment.” Brockman, 143 Ill.
       2d at 372-73.
¶ 22        The court’s conclusion in Brockman that the Environmental Protection Act created a tort
       duty is consistent with the concept of a tort itself. Brockman, like the cases mentioned above
       in which courts found statutory tort duties, involved the legislature’s intent to prevent
       personal injury or property damage, specifically to prevent injury to persons and harm to the
       environment from hazardous substances. See Brockman, 143 Ill. 2d at 375 (noting that the
       purpose of the Environmental Protection Act is to impose liability on those who create a
       situation harmful to the environment); 415 ILCS 5/2(a)(i) (West 2010) (stating the General
       Assembly’s finding that “environmental damage seriously endangers the public health and
       welfare”). In contrast, the Prevailing Wage Act does not involve such concerns. Rather, the
       purpose of the Act is to ensure that workers on public-works projects are paid the prevailing
       wage. Accordingly, Brockman is inapposite.
¶ 23        Valdivia’s argument that a recent amendment to the Prevailing Wage Act compels a
       different conclusion is not convincing. The Act was amended, effective January 1, 2010, to
       require a general contractor to pay the penalties that would otherwise be imposed on a
       subcontractor, if the general contractor failed to notify the subcontractor of the Act’s
       applicability. 820 ILCS 130/4(b-2) (West 2010). Valdivia argues that this amendment, rather
       than changing the law, served to clarify the law as it existed at the relevant time here, thus
       supporting his right to contribution under the theory that general contractors have duties to
       notify and post. We first note that, as Valdivia acknowledges, the amended language makes
       clear that a general contractor’s failure to notify “does not relieve the subcontractor of the
       duty to comply with the prevailing wage rate, nor of the obligation to pay any back wages.”
       820 ILCS 130/4(b-2) (West 2010). Even more significant here is that the amendment applies
       to violations of the notice requirement, not the posting requirement. As it is only the posting
       requirement that could possibly benefit Valdivia’s employees, the amendment does not
       support the viability of Valdivia’s contribution claim.
¶ 24        Valdivia finally argues that the equities compel the conclusion that he be permitted to
       seek contribution because otherwise Divito will be unjustly enriched and Valdivia will be
       unfairly burdened with the total cost of the back wages owed plus penalties. Contribution is
       based on principles of equity. Doyle, 101 Ill. 2d at 16. However, “[t]he equitable powers of
       a court may not be exercised to direct a remedy in contradiction to the plain requirements of

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       a statute.” 601 West 81st Street Corp. v. City of Chicago, 129 Ill. App. 3d 410, 418 (1984).
¶ 25        Valdivia’s argument that Divito will be unjustly enriched if he is not subject to
       contribution is purely speculative. It is premised on the facts that Divito’s bid to the Village
       included a cost of $85,638 for “sodding, special,” while under his contract with Valdivia for
       sodding, he paid only $44,493.75. Superficially, these facts might suggest unfairness; indeed,
       the trial court stated that the equities favored Valdivia. Nonetheless, to the extent that the
       parties entered into a contract1 for the $44,493.75 price, the theory of unjust enrichment
       really has no relevance. See People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473,
       497 (1992) (stating that, because the theory of unjust enrichment is based on a contract
       implied in law, it has no applicability where an actual contract exists). Moreover, Valdivia
       actually paid $19,474.91 in wages and is subject to an additional $78,185.55 in back wages.
       Thus, the total prevailing wage owed was $97,660.46–$12,000 more than the sodding cost
       listed in Divito’s bid to the Village (and that does not include any cost for materials).
       Consequently, it would seem that other factors, about which we decline to speculate, figured
       into Divito’s sodding cost in his bid, which consisted of 47 different items and totaled
       $653,829. We also disagree with Valdivia’s argument that precluding a contribution claim
       in this type of situation allows general contractors to profit from their disregard for the notice
       provision. The Act provides that general contractors who violate its provisions are subject
       to being barred from public-works projects for two years. See 820 ILCS 130/11a (West
       2004). Thus, any “profit” from a violation would be short-lived.
¶ 26        We are also not convinced that, absent a claim for contribution, Valdivia will be unfairly
       burdened with the total cost of the back wages owed plus penalties. Valdivia was statutorily
       obligated to pay the prevailing wage, regardless of notice of the Act’s applicability. See
       Sackville Construction, 402 Ill. App. 3d at 203 (notice is not a condition precedent to the
       obligation to pay the prevailing wage). Valdivia’s failure to comply with the Act subjected
       him to owing back wages and penalties. See Sackville Construction, 402 Ill. App. 3d at 203
       (holding that, despite lack of notice, the subcontractor’s failure to pay the prevailing wage
       subjected it to back wages and penalties under the Act). Even if we were to agree with the
       trial court’s conclusion that the equities favored Valdivia, we cannot circumvent the clear
       mandate of the Contribution Act’s requirement that both parties be subject to liability in tort.
       See 601 West 81st Street Corp., 129 Ill. App. 3d at 418 (court cannot use equity to contradict
       a statute’s requirements). Any perceived unfairness must be rectified by the legislature.
       Henrich v. Libertyville High School, 186 Ill. 2d 381, 394 (1998) (“The responsibility for the
       justice or wisdom of legislation rests upon the legislature.”).
¶ 27        Based on the foregoing reasons, we affirm the judgment of the circuit court of Du Page
       County.

¶ 28       Affirmed.



               1
              Paragraph 7 of Valdivia’s affirmative defense asserts that the parties “entered into an oral
       agreement.” Paragraph 9 alleges that Valdivia performed all of his obligations “under said contract.”

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