THIRD DIVISION
FILED: 05/14/03

The plaintiff, Jose Murcia, filed the instant action seekingdamages for injuries he sustained while operating a trim pressowned by his employer, Callen Manufacturing Company (Callen). Incount III of his amended complaint, the plaintiff asserted anegligence claim against Callen, predicated upon its allegedalteration of the trim press, failure to equip the press withnecessary safety devices, and failure to warn him of the dangerouscondition of the press. Callen filed a motion for judgment on thepleadings pursuant to section 2-615(e) of the Code of CivilProcedure (Code) (735 ILCS 5/2-615(e) (West 1996)), in which itasserted that the negligence claim contained in count III of theplaintiff's amended complaint was barred by the exclusive remedyprovision of section 5(a) of the Workers' Compensation Act (820ILCS 305/5(a) (West 1996)). Before the trial court ruled onCallen's motion, the plaintiff filed a second amended complaintwhich, in count III thereof, again asserted a negligence claimagainst Callen. Callen elected to have its previously filed motionfor judgment on the pleadings stand as its responsive pleading tocount III of the plaintiff's second amended complaint. On March11, 1997, the trial court granted Callen's motion for judgment onthe pleadings and dismissed count III of the plaintiff's secondamended complaint. It did not, however, include within its orderfindings pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)), permitting an immediate appeal therefrom.

The action continued on as against the remaining defendants. On February 6, 1998, the trial court granted summary judgment infavor of nine defendants named in count II of the plaintiff'ssecond amended complaint and included the requisite Rule 304(a)findings in its written order to that effect. The plaintiff didnot appeal from that order, and those defendants are not parties tothis appeal.

A trial commenced in this cause during the first week of May2000. Although we have no transcript of that proceeding, itappears that the only defendant to participate in the trial wasTextron, Inc. On May 10, 2000, after the trial commenced, theplaintiff was granted leave to file a two-count third amendedcomplaint. Count I set forth a negligence claim against Textron,Inc. and three other corporations. Count II reasserted thenegligence claim against Callen which the trial court had previously dismissed on March 11, 1997.

At the conclusion of the trial on May 10, 2000, the juryreturned a verdict in favor of Textron, Inc., and the trial courtentered judgment on the verdict that same day. There was no orderentered disposing of the plaintiff's claims against the remainingthree defendants as of that date.

On November 8, 2000, the plaintiff filed a motion asking thecourt to reconsider its March 11, 1997, order granting Callen'smotion for judgment on the pleadings. The trial court denied thatmotion on May 11, 2001. Thereafter, on June 8, 2001, the plaintifffiled a notice of appeal from the trial court's orders dismissingCallen and denying his motion to reconsider. However, since theplaintiff's claims against the three remaining defendants werestill pending and unresolved, this court dismissed that appeal forwant of jurisdiction. Murcia v. Textron, Inc., No. 1-01-2176(2002) (unpublished order under Supreme Court Rule 23).

On September 6, 2002, the trial court entered an agreed orderdismissing the plaintiff's action against the remaining threedefendants, with prejudice. Thereafter, on September 23, 2002, theplaintiff again filed a notice of appeal from the trial court'sMarch 11, 1997, order dismissing his negligence claim againstCallen and its May 11, 2001, order denying his motion forreconsideration of the dismissal order. Since the trial court'sorder of September 6, 2002, terminated this litigation as to allremaining defendants, our jurisdiction to entertain the plaintiff'sappeal has been invoked pursuant to Supreme Court Rule 301 (155Ill. 2d R. 301).

In this appeal, the plaintiff addresses only the dismissal ofhis negligence claim against Callen. None of the other defendantsare parties to this appeal. In urging reversal of the March 11,1997, order granting Callen's motion for judgment on the pleadings,the plaintiff argues that Callen acted in a "dual capacity," actingnot only as his employer but also as a "quasi manufacturer" of thetrim press that injured him. The plaintiff maintains that thenegligence claim involved here is brought against Callen in itscapacity as a "quasi manufacturer" of the press and, as such, isnot barred by the exclusive remedy provision of the Workers'Compensation Act. For the reasons which follow, we reject theplaintiff's argument and affirm the judgment of the circuit court.

Before addressing the substantive issues presented by thisappeal, we will comment briefly upon a procedural aspect of thecase.

A motion for judgment on the pleadings brought by a defendantpursuant to section 2-615(e) of the Code admits the truth of all ofthe well-pleaded facts in the plaintiff's complaint and tests thesufficiency of the pleading as a matter of law. Cunningham v.MacNeal Memorial Hospital, 47 Ill. 2d 443, 448, 266 N.E.2d 897(1970). The purpose of such a motion is not to raise affirmativefactual defenses. Illinois Graphics Co. v. Nickum, 159 Ill. 2d469, 484, 639 N.E.2d 1282 (1994). In contrast, a motion to dismissa complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619(West 1996)) admits the legal sufficiency of the complaint andraises certain defects or affirmative defenses which act to defeatthe plaintiff's claim. Illinois Graphics Co., 159 Ill. 2d at 485;Neppl v. Murphy, 316 Ill. App. 3d 581, 584, 736 N.E.2d 1174 (2000).

The exclusive remedy provision of section 5(a) of the Workers'Compensation Act provides employers with an affirmative defense toany tort action that may be asserted against them by an employeeinjured in the line of his or her duty. Doyle v. Rhodes, 101 Ill.2d 1, 10, 461 N.E.2d 382 (1984). Consequently, the defense isappropriately raised by a motion for involuntary dismissal broughtpursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9)(West 1996)), not by means of a motion for judgment on thepleadings pursuant to section 2-615(e) as was done by Callen inthis case. However, as our supreme court has observed, there is"some degree of overlap between motions to dismiss brought undersection 2-615 and those brought under section 2-619" when thegrounds for the motion appear on the face of the complaint underattack. Illinois Graphics Co., 159 Ill. 2d at 485.

In this case, the factual basis underlying Callen's assertionof the exclusive remedy provision of section 5(a) of the Workers'Compensation Act as a bar to the plaintiff's negligence claimagainst it appears on the face of count III of the second amendedcomplaint. Because both a section 2-615 motion and a section 2-619motion admit the truth of the allegations in the complaint underattack (Anderson v. Anchor Organization for Health Maintenance, 274Ill. App. 3d 1001, 1012, 654 N.E.2d 675 (1995)) and because theplaintiff was able to address the substance of Callen's argumentsin response to its motion, we find that the plaintiff was notprejudiced by Callen's mislabeling of the motion. See Neppl, 316Ill. App. 3d at 585-86. Further, we apply a de novo standard ofreview to orders entered in response to either a section 2-615motion or a section 2-619 motion. Neppl, 316 Ill. App. 3d at 583. As a consequence, we will address the substantive issue raised bythe plaintiff's appeal; namely, whether, as a matter of law, hisnegligence claim against Callen is barred by the exclusive remedyprovision of the Workers' Compensation Act.

As our supreme court explained in Sharp v. Gallagher, 95 Ill.2d 322, 326, 447 N.E.2d 786 (1983), in enacting the Workers'Compensation Act, our legislature abrogated an injured employee'scommon law rights to recover against its employer. Our legislatureestablished instead a system of no-fault liability for employers,subject to statutory limits as to the amount an employee mayrecover. Sharp, 95 Ill. 2d at 326. In most cases, the Workers'Compensation Act provides an employee's exclusive source of remedyagainst his employer. Sharp, 95 Ill. 2d at 326. Section 5(a) ofthe Workers' Compensation Act provides in relevant part:

"No common law or statutory right to recover damagesfrom the employer *** for injury or death sustained byany employee while engaged in the line of his duty assuch employee, other than the compensation hereinprovided, is available to any employee who is covered bythe provisions of this Act." 820 ILCS 305/5(a) (West1996).

The dual capacity or dual persona doctrine is recognized as alimited exception to the exclusive remedy provision of section5(a). Under this doctrine, an employer may become liable in tortto an injured employee if, in addition to acting in its capacity asemployer, it operates in a second capacity that confers upon it"obligations independent of those imposed upon [it] as employer." Smith v. Metropolitan Sanitary District, 77 Ill. 2d 313, 318, 396N.E.2d 524 (1979). As our supreme court held in Smith:

"[T]he decisive test in applying the dual capacitydoctrine 'is not concerned with how separate or differentthe second function of the employer is from the first butwith whether the second function generates obligationsunrelated to those flowing from the first, that ofemployer.' (2A A. Larson, Workmen's Compensation sec.72.80, at 14-117 (1976).) A mere separate theory ofliability against the same legal person as the employeris not a true basis for the use of the dual capacitydoctrine; the doctrine, instead, requires a distinctseparate legal persona. (2A A. Larson, Workmen'sCompensation sec. 72.80 (Supp. 1979).)" Smith, 77 Ill.2d at 318-19.

In order to invoke the dual capacity doctrine as an exceptionto the exclusive remedy provision set forth in section 5(a) of theWorkers' Compensation Act, an employee must show that his employeracted in two distinct capacities and that he was injured as aresult of conduct in which his employer engaged while acting in thecapacity other than that of employer. Where, however, the dutiesof the employer under both capacities are intertwined to the extentthat its conduct in the second capacity cannot be deemed togenerate obligations unrelated to those flowing from its capacityas an employer, the dual capacity doctrine is inapplicable.Incandela v. Giannini, 250 Ill. App. 3d 23, 27-28, 619 N.E.2d 844(1993); see also McCormick v. Caterpillar Tractor Co., 85 Ill. 2d352, 357, 423 N.E.2d 876 (1981).

In count III of his second amended complaint, the plaintiffalleged that he was injured while operating a trim press owned byhis employer, Callen. He further alleged that, in modifying,changing and altering the press, Callen "acted as a 'quasimanufacturer' and was, in effect, a separate legal entity, namelya manufacturer." On appeal, the plaintiff asserts that Callen'sconduct in modifying the press was outside the bounds of theemployer-employee relationship and gave rise to the application ofthe dual capacity doctrine.

The plaintiff's arguments in this regard were raised andrejected in Rosales v. Verson Allsteel Press Co., 41 Ill. App. 3d787, 354 N.E.2d 553 (1976). In Rosales, the plaintiff brought acommon law action against his employer, alleging that injuries hereceived while operating a punch press owned by the employer wereproximately caused by the employer's modification of the press. The employer moved to dismiss, arguing that the action was barredby section 5(a) of the Workers' Compensation Act. The trial courtgranted the motion, and the plaintiff appealed. Rosales, 41 Ill.App. 3d at 787-88. The plaintiff asserted that the trial courterred in dismissing the action because he sued his employer as the"quasi manufacturer" of the press, not in its capacity as hisemployer. The Rosales court rejected the argument, holding that anemployer's act of supplying tools to its employee is a naturalincident of the employer-employee relationship and that anemployer's modification of a press intended for use by itsemployees does not impose upon the employer the dual capacity of aquasi manufacturer. Rosales, 41 Ill. App. 3d at 787-89. The courtreasoned that, "under the dual capacity doctrine, the secondcapacity must be one that creates legal obligations on the part ofthe employer to the public in general and not just to itsemployees." Rosales, 41 Ill. App. 3d at 790.

In Ocasek v. Krass, 153 Ill. App. 3d 215, 505 N.E.2d 1285(1987), the court analyzed the holding in Rosales. The court heldthat the dual capacity doctrine is not applicable simply becausethe employer's additional capacity creates obligations to thegeneral public if those obligations are not unrelated to theobligations flowing from its role as an employer. The Ocasek courtnoted that the majority of jurisdictions hold that an employer whois also the manufacturer of a product which is used by itsemployees cannot be held liable to its own employees on a theory ofproduct liability. Ocasek, 153 Ill. App. 3d at 218-19.

In this case, the plaintiff has not alleged facts necessary toavail himself of the dual capacity doctrine. See Sims v. Teepak,Inc., 143 Ill. App. 3d 865, 870, 493 N.E.2d 721 (1986) (complaintmust allege the existence of a second capacity under which theemployer's status as an employer is coincidental). The mere factthat Callen modified, changed or altered the press that injured theplaintiff did not impose upon it a second legal persona independentfrom and unrelated to its status as the plaintiff's employer. Norhas the plaintiff alleged facts to support the conclusion that, bymodifying, changing or altering the press, Callen incurredobligations unrelated to those flowing from its status as anemployer. As was the case in Rosales, Callen's modification of thepress that injured the plaintiff did not impose upon it the dualcapacity of a "quasi manufacturer." Rather, Callen's act ofmodifying, changing or altering the press was incident to itsbusiness of manufacturing machinery parts and was undertaken in itscapacity as the plaintiff's employer.

Based upon the foregoing analysis, we find that the plaintiff's negligence claim against Callen is barred by section 5(a) ofthe Workers' Compensation Act and, as a consequence, affirm thejudgment of the circuit court.

Affirmed.

SOUTH, P.J., and HALL, J., concur.