NO. 4-01-1152
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
| BELINDA D. HUNTER, as Special | ) | Appeal from |
| Administratrix of the Estate of | ) | Circuit Court of |
| JEFFREY HUNTER, Deceased, | ) | Morgan County |
| Plaintiff-Appellee, | ) | No. 98L42 |
| v. | ) | |
| SOUTHWORTH PRODUCTS CORPORATION, a | ) | |
| Foreign Corporation, | ) | |
| Defendant and Third-Party | ) | |
| Plaintiff-Appellee, | ) | |
| v. | ) | |
| PACTIV CORPORATION, f/k/a TENNECO | ) | |
| PACKAGING, INC.; and BRENNAN HEATING | ) | |
| AND AIR CONDITIONING, INC., | ) | |
| Third-Party Defendants, | ) | |
| and | ) | |
| EXXONMOBIL CORPORATION, | ) | Honorable |
| Third-Party Defendant- | ) | J. David Bone, |
| Appellant. | ) | Judge Presiding. |
PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:
Third-party defendant ExxonMobil Corporation (ExxonMobil)appeals from an order of the circuit court of Morgan County denyingits motion for summary judgment on its affirmative defense claiminglimited liability under the Workers' Compensation Act (Act) (820ILCS 305/1 through 30 (West 2000)). Plaintiff Belinda D. Hunter,as special administratrix of the estate of Jeffrey Hunter,deceased, instituted this products liability action againstdefendant Southworth Products Corporation (Southworth). Southworththen filed third-party actions against ExxonMobil and PactivCorporation, f/k/a Tenneco Packaging, Inc. (Tenneco). This courtallowed this appeal pursuant to Supreme Court Rule 308 (155 Ill. 2dR. 308) to address the following question of law certified by thetrial court:
"In a product liability action againstthe manufacturer of a hydraulic lift tablewhich collapsed and killed the plaintiff'sdecedent, in which the defendant manufacturerfiled a third-party complaint for contributionagainst a corporation that was the decedent'sformer employer for allegedly making negligentmodifications to the lift table, and themodifications were made before the employmentrelationship with the decedent began, butcontinued to exist during and in the courseand scope of the employment of the decedentand the injury to the decedent occurred afterthe employment relationship ended when thethird-party defendant employer sold its assetsto a company which continued to employ thedecedent and continued to use the modifiedtable lift, is the third-party defendantprotected in the third-party action by theIllinois Worker's Compensation Act pursuant tothe holding in Kotecki v. Cyclops WeldingCorp., 146 Ill. 2d 155[, 585 N.E.2d 1023](1991)?"
The arguments of the parties are not limited to addressing thescope of Kotecki as it applies to this case. The parties alsocontest the underlying question of whether the Act is the exclusiveremedy against a former employer. Because that question must beanswered before reaching a determination of the scope of Kotecki,we consider that issue here. Arriola v. Time Insurance Co., 323Ill. App. 3d 138, 142-43, 751 N.E.2d 221, 224-25 (2001); see alsoBillerbeck v. Caterpillar Tractor Co., 292 Ill. App. 3d 350, 356-57, 685 N.E.2d 1018, 1022-23 (1997) (as part of a Rule 308 review,the court is not limited to answering the question, but may addressthe propriety of the order giving rise to the appeal). Wedetermine that the exclusive remedy against ExxonMobil under thefacts alleged in this case is under the Act and answer thecertified question "No" and remand the cause.
The facts are undisputed. In 1992, ExxonMobil purchasedand installed the lift table in its plant in Jacksonville,Illinois. It is alleged that, at the time of installation,ExxonMobil modified the lift table. The deceased was hired byExxonMobil to work as an electrician in the plant on January 20,1995. On October 1, 1995, ExxonMobil sold the plant to Tenneco aspart of the transfer of ExxonMobil's entire plastics business. After the change of ownership, the deceased continued to work atthe plant for Tenneco, and Tenneco continued to use the modifiedlift table. On February 4, 1996, the deceased was performingmaintenance work on the lift table when it fell on him and causedhis death. The third-party complaint alleged that the modifications to the table made by ExxonMobil at the time of installationcaused the accident. In November 1999, Tenneco changed its name toPactiv Corporation (Pactiv). At all times it owned and operatedthe plant, ExxonMobil maintained workers' compensation insurancefor its employees. Since purchasing the plant from ExxonMobil,Tenneco and Pactiv maintained workers' compensation insurancecoverage for employees. After decedent's death, Pactiv providedbenefits under the Act to his widow.
In Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455,462, 564 N.E.2d 1222, 1225 (1990), the Supreme Court of Illinoisexplained:
"The Workers' Compensation Act is designed toprovide financial protection to workers foraccidental injuries arising out of and in thecourse of employment. (See Pathfinder Co. v.Industrial Comm'n (1976), 62 Ill. 2d 556.) Accordingly, the Act imposes liability withoutfault upon the employer and, in return, prohibits common law suits by employees againstthe employer. The exclusive remedy provision'is part of the quid pro quo in which thesacrifices and gains of employees and employers are to some extent put in balance, for,while the employer assumes a new liabilitywithout fault, he is relieved of the prospectof large damage verdicts.' (2A A. Larson, Lawof Workmen's Compensation