The opinion
2019 IL App (2d) 180537
No. 2-18-0537
Opinion filed May 31, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
DELLACE C. HOLTEN JR., ) Appeal from the Circuit Court
) of Boone County.
Plaintiff-Appellant, )
)
v. ) No. 13-L-4
)
SYNCREON NORTH AMERICA, INC.; )
MARION SAPRON; ANDROID )
INDUSTRIES-BELVIDERE, LLC; COBALT )
INDUSTRIAL REIT; TOVAR SNOW )
PROFESSIONALS, INC.; and CORPORATE )
EMPLOYMENT SERVICES, INC., )
)
Defendants )
) Honorable
(Android Industries-Belvidere, LLC, ) John H. Young,
Defendant-Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices McLaren and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Dellace C. Holten Jr., appeals from the trial court’s orders granting summary
judgment in favor of defendant Android Industries-Belvidere, LLC (Android), and denying
plaintiff’s motion to vacate and reconsider. The trial court held that plaintiff’s personal-injury
action was barred by the exclusive-remedy provision of the Workers’ Compensation Act (Act)
(820 ILCS 305/5(a) (West 2012)) because there was no genuine issue of material fact with
2019 IL App (2d) 180537
respect to the existence of a borrowed-employee relationship, as set forth in section 1(a)(4) of the
Act (id. § 1(a)(4)), pursuant to which Staff on Site, Inc. (Staff on Site), a temporary staffing
agency, sent plaintiff to work at Android. Plaintiff argues on appeal that summary judgment
should have been granted in his favor on Android’s exclusive-remedy defense, because it was
undisputed that Android neither paid plaintiff’s workers’ compensation insurance premiums or
benefits nor was obliged to reimburse Staff on Site for the expenses. Alternatively, plaintiff
argues that there were, at a minimum, genuine issues of material fact as to whether a borrowed-
employee relationship existed. For the reasons set forth below, we affirm.
¶2 I. BACKGROUND
¶3 The following is derived from the pleadings, depositions, and affidavits on file. Android,
a manufacturer, contracted with Staff on Site for the provision of temporary employees. As
pertinent to the issue here, the contract between Android and Staff on Site provided:
“1. Staff On Site and Client agree that Staff On Site will provide temporary
employees (‘Employees’) for Client. Client agrees that it will pay for said employees at
the rate set forth in the attached proposal which, from time to time, may be amended by
both parties in writing.
2. Client agrees that Staff On Site’s obligation to Client is limited to assigning
employees (‘Employees’) with certain skills and abilities; maintain personnel and payroll
records; calculate and pay wages; withhold and remit payroll taxes and other
government-mandated charges (including worker[s’] compensation); hire, assign,
reassign, counsel, discipline and discharge Employees and to be responsible for and
handle work-related claims and complaints. Client further agrees to notify Staff On Site
of any placement of employees working in conjunction with any Government Contract.”
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It was undisputed that Staff on Site maintained the requisite workers’ compensation insurance.
¶4 Staff on Site hired plaintiff in approximately October or November 2011 and assigned
plaintiff to Android’s industrial facility in Belvidere, as a forklift operator. Plaintiff alleged that
on January 20, 2012, he sustained injuries when the forklift he was operating at Android fell
from inside a tractor-trailer as the tractor-trailer moved away from a loading dock.
¶5 Plaintiff filed a workers’ compensation claim against Android. However, Android
directed plaintiff to file the claim against Staff on Site. Accordingly, plaintiff filed the claim
against Staff on Site and received workers’ compensation benefits.
¶6 Plaintiff then filed this lawsuit against Android and other entities (none of which is a
party to this appeal). 1 The operative complaint alleged negligence against Android. Android filed
affirmative defenses, including that, because it was a borrowing employer under section 1(a)(4)
of the Act (id.), plaintiff’s claims were barred by the exclusive-remedy provision of the Act (id. §
5(a)). The parties filed cross-motions for summary judgment on the exclusive-remedy defense.
The evidence submitted with the motions included the deposition testimony of plaintiff and
Brian Brown (Android’s human resources manager), a verified statement from plaintiff, an
affidavit from Brown, the contract between Android and Staff on Site, and the correspondence
from Android redirecting plaintiff’s workers’ compensation claim.
¶7 At Brown’s deposition, regarding plaintiff’s assignment to Android, Brown explained
that Android had notified Staff on Site that Android “needed people with certain skill sets, and
[plaintiff] was one of the people that they referred—that they sent over.” Plaintiff was “presented
1
Staff on Site’s workers’ compensation carrier, Work First Casualty Company,
intervened as subrogee of Staff on Site to receive reimbursement for sums paid in the workers’
compensation action from any judgment or settlement plaintiff received in this action.
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to [Android] as being a very skilled, qualified material handler, forklift driver,” and he passed a
forklift test before Android allowed him to “drive on a regular production basis.”
¶8 Brown further testified regarding plaintiff’s work at Android:
“Q. You answered the questions about how [plaintiff] got on the Android
property. You called Staff on Site or somebody called Staff on Site to send somebody
over. They sent over [plaintiff], is that correct?
A. Correct.
Q. Once [plaintiff] was here, did he report to Android’s facility every day or did
he have to go first to Staff on Site and then come check in here?
A. No, he just came from home to here.
Q. Okay. And when he left Android’s facility, did he have to go back to Staff on
Site before he returned home?
A. No.
Q. Okay. While he was on Android’s property, did Staff on Site have any insight
or any input on how he did his job on the day-to-day basis?
A. No.
Q. Okay. Were there supervisors at Android that would tell [plaintiff] what to do
on a daily basis[?]
A. Yeah.
Q. Before [plaintiff] would start his shift, would there be safety meetings or shift
meetings before his shift[?]
A. Materials always had a startup meeting.
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Q. Okay. The startup meeting, was any Staff on Site personnel at those startup
meetings or were they just Android personnel and the temps that were sent over there[?]
A. Just the people who were here on assignment.
Q. Okay. As far as the control over [plaintiff’s] work, an Android supervisor
would be controlling what he did and when he did it and how often he would do that?
A. Give him directions for the day?
Q. Yeah.
A. The assignments? It would be here, yeah, people from here.”
Brown also explained that, when a temporary employee arrives, “we say okay, here’s the
equipment, here’s the hours of work, here’s what we want you to do. We provide the training and
they do the job.” Brown specified that Android owned or leased the equipment plaintiff used.
¶9 Regarding Android’s ability to terminate a worker placed by Staff on Site, Brown
testified that Android had the right to remove the worker from its facility and tell the worker to
return to Staff on Site. Brown further testified:
“[W]e don’t fire them. We can ask the staffing agency not to have them return
and—because they’re their employees, not ours. So we can say please, you know, have—
end their assignment here, but—you know, it’s a matter of semantics. We don’t—I don’t
go out there and tell a temp that you’re fired. We just notify the staffing agency to please
not have them come back.”
Brown acknowledged that Staff on Site could still send the worker back but explained that “at
the very least the working relationship would end with the agency” and that Android might need
to call the police if “somebody just keeps showing up.” Brown surmised, “They could do it, but,
like I said, it would get old in a hurry.”
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¶ 10 In his affidavit, Brown attested that plaintiff worked primarily the second shift at Android
and that plaintiff’s working hours were the same as those of other second-shift employees. In this
regard, Brown attested that Android controlled plaintiff’s starting time and ending time and had
the discretion to give plaintiff fewer or more hours. Further, according to Brown’s affidavit, Staff
on Site did not have supervisors present at Android and plaintiff took direction from Android
employees.
¶ 11 Plaintiff testified at his deposition about his placement at Android:
“Q. How [did] you become employed at Android Industries?
A. I never was employed there. I was employed for—through Staff on Site.
***
Q. Was your first and only placement by Staff on Site, Android Industries?
A. Yes.”
¶ 12 Plaintiff further testified:
“Q. Staff on Site, at some point, told you that you could work at Android, is that
correct?
A. Yes.
Q. And you agreed to go to Android to work as a forklift operator[?]
A. Yes.”
¶ 13 Regarding his duties at Android, plaintiff testified that he “started off loading and
unloading semis on the south side of the plant which would have been parts coming in and going
out to supply the line.” Plaintiff explained that his duties changed before the accident. He
testified that, “because [he] was such a good forklift driver, they trusted [him] with the engines
and transmissions which is a little more complicated than your general forklift or your general
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material handling.” Thus, “[a] day or two before the accident,” his assignment changed to
“engines and transmissions” and “they [took him] to the other side and gave [him] a day or two
of kind of breaking [him] in back there of how things go.”
¶ 14 Regarding the source of the change in his duties, plaintiff testified:
“Q. Okay. Who decided to change your work?
A. They did because—
Q. And that is going to be my question. Who is they?
A. They would be—His name is [sic] Mike and Wil.
Q. And—
A. Now, whether they got higher up. I don’t know.
Q. Okay. And Mike and Wil, were they your supervisors while you were at
Android?
A. They were who instructed me on what to do, yes.
Q. And who did Mike and Wil work for?
A. I am assuming Android.”
¶ 15 Plaintiff was questioned about his understanding as to Android’s ability to terminate him.
Initially, plaintiff testified:
“Q. So you believe you were fired by Staff on Site or by Android?
A. By Staff on Site.”
Plaintiff further testified, however, that at the time of the accident he was concerned that Android
would terminate him. According to plaintiff, on the day of the accident, a supervisor at Android
warned him that he would be terminated if he filed a workers’ compensation claim. The
following colloquy ensued:
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“Q. If you didn’t work for Android, why were you concerned that Android might
fire you for making a workers’ comp claim?
A. They can compel my employer to get rid of me.
Q. And that was your understanding, that Android could compel Staff on Site to
get rid of you?
A. Yes.”
¶ 16 In plaintiff’s verified statement, he stated that prior to the accident he “was never told”
that Android had the power to dismiss him from any employment, “was never told” that Android
had the power to compel Staff on Site to dismiss him from his employment or from working at
Android, and “was never told” that he “had to start or stop working when told by Android.”
Plaintiff also stated that, prior to the accident, he “did not believe that Android had the power to
compel Staff on Site to dismiss [him] from employment at any location” and he “did not believe
[that he] was employed by Android nor that Android controlled [his] work performance.”
Moreover, “[b]y the day of the accident, [plaintiff] worked independently, with less than a
minute of instruction from Android.”
¶ 17 Plaintiff further stated that he never received an employee handbook from Android, that
he received instruction and assistance from both Android and Staff on Site employees when he
worked at Android, and that he did not know if “Staff on Site had a greater say over who worked
at the Android facility than Android, as [he] did not know the full relationship between them.”
Plaintiff stated that Staff on Site told him to bring all employment issues, including scheduling
issues, to Staff on Site and not to Android. Plaintiff stated that, after the accident, an Android
supervisor told him that he would be terminated if he filed a workers’ compensation claim, and
he believed that Android “could compel Staff on Site to get rid of [him].” Moreover, after the
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accident, Brown “told [him] that only Staff on Site could hire [him] and dismiss [him], and that
Android did not fire [him] and did not control whether [he] worked at Android.”
¶ 18 Following a hearing on the parties’ cross-motions for summary judgment, the trial court
granted summary judgment in favor of Android. The trial court found no genuine issue of
material fact with respect to Android’s right to control and direct the manner of plaintiff’s work.
In doing so, it found that Staff on Site placed plaintiff at Android to drive a forklift, plaintiff
worked the same hours as other Android employees, Android’s employees supervised plaintiff,
no Staff on Site supervisors worked at the Android facility, Android had the right to remove
plaintiff from the Android facility, and Android provided the equipment plaintiff used. The trial
court also found that “a borrowing employer need not have the power to dismiss the employee
from his general employment, just the power to dismiss from the borrowed employment.”
¶ 19 The trial court rejected plaintiff’s argument that “there must be a payment of benefits as a
prerequisite to apply the exclusive remedy under [s]ection 5(a)” (820 ILCS 305/5(a) (West
2012)). The trial court reasoned:
“Android and Staff on Site contracted for Staff on Site to provide workers’
compensation coverage. The plaintiff has, apparently, filed a workers’ compensation
claim and has, apparently received benefits from Staff on Site, hence the interven[o]r.
Here, as provided in [section] 1(a)(4), Android as a borrowing employer not providing or
paying benefits is liable to the employee jointly and [severally]; however, the employee
doesn’t get two workers’ compensation coverages or two workers’ compensation
recoveries.”
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Accordingly, the trial court concluded that Android was a borrowing employer under section
1(a)(4) of the Act (id. § 1(a)(4)) and entitled to the immunity set forth in the Act’s exclusive-
remedy provision.
¶ 20 Plaintiff moved to vacate and reconsider the trial court’s grant of summary judgment in
favor of Android. Following a hearing, the trial court denied the motion, reiterating its findings
with respect to Android’s right to control and direct the manner of plaintiff’s work. The trial
court also rejected plaintiff’s “more strenuously argued” position “that Android not paying
workers’ compensation premiums is a ‘threshold’ to any immunity under [s]ection 5(a) of the
Workers’ Compensation Act.” The trial court noted that section 1(a)(4) of the Act provides that
the liability of loaning and borrowing employers is joint and several unless there is an agreement
to the contrary. There was an agreement to the contrary here—“Android and Staff on Site
contracted for Staff on Site to provide the workers’ compensation coverage and [it], in fact did.”
Thus, Android was a borrowing employer under section 1(a)(4) and entitled to immunity under
the Act’s exclusive-remedy provision.
¶ 21 Plaintiff timely appealed.
¶ 22 II. ANALYSIS
¶ 23 Plaintiff argues that summary judgment on the exclusive-remedy defense should have
been entered in his favor, because it was undisputed that Android neither paid plaintiff’s
workers’ compensation premiums or benefits nor was obliged to reimburse Staff on Site for the
expenses. Alternatively, plaintiff argues that, at a minimum, there were genuine issues of
material fact as to whether a borrowed-employee relationship existed. We disagree.
¶ 24 We note as a preliminary matter that plaintiff’s statement of facts includes argument and
comment in violation of Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018). While we
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may strike a statement of facts or dismiss an appeal based upon such violations, we decline to do
so here, as the violations do not hinder our review. See O’Gorman v. F.H. Paschen, S.N. Nielsen,
Inc., 2015 IL App (1st) 133472, ¶ 80. However, we disregard the noncompliant portions of
plaintiff’s statement of facts. See id.
¶ 25 Summary judgment is proper when “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2012). “The purpose of summary judgment is not to try a question of fact, but rather to determine
whether a genuine issue of material fact exists.” Bagent v. Blessing Care Corp., 224 Ill. 2d 154,
162 (2007). In determining whether there is a genuine issue of material fact, the pleadings,
depositions, admissions, and affidavits must be construed strictly against the movant and
liberally in favor of the opponent. Id. A triable issue of fact exists where there is a dispute as to a
material fact or where, although the material facts are not in dispute, reasonable minds might
differ in drawing inferences from those facts. Id. at 162-63. Although summary judgment can aid
in the expeditious disposition of a lawsuit, it is a drastic measure and, thus, should be allowed
only where the movant’s right to judgment is “clear and free from doubt.” Williams v.
Manchester, 228 Ill. 2d 404, 417 (2008). We review summary judgment rulings de novo. Id.
¶ 26 With these concepts in mind, we address whether the trial court properly entered
summary judgment in Android’s favor on the exclusive-remedy defense under the Act. The Act
is intended to provide financial protection to workers for accidental injuries arising out of and in
the course of employment. Falge v. Lindoo Installations, Inc., 2017 IL App (2d) 160242, ¶ 14
(citing Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990)). Accordingly, the Act
imposes upon the employer liability without fault but prohibits the employee from bringing a
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common-law suit against the employer. Id. (citing Meerbrey, 139 Ill. 2d at 462). Section 5(a) of
the Act sets forth this exclusive remedy:
“No common law or statutory right to recover damages from the employer *** for
injury or death sustained by any employee while engaged in the line of his duty as such
employee, other than the compensation herein provided, is available to any employee
who is covered by the provisions of this Act ***.” 820 ILCS 305/5(a) (West 2012).
The exclusive-remedy provision is part of the quid pro quo pursuant to which the employer
assumes liability without fault but is relieved of the prospect of large verdicts for damages.
Meerbrey, 139 Ill. 2d at 462.
¶ 27 The issue in this case is whether Android is entitled to immunity under the exclusive-
remedy provision as a borrowing employer under the Act. “An employee in the general
employment of one person may be loaned to another for the performance of special work and
become the employee of the person to whom he is loaned, while performing the special service.”
A.J. Johnson Paving Co. v. Industrial Comm’n, 82 Ill. 2d 341, 346-47 (1980). Our supreme court
has long recognized the applicability of the common-law borrowed-employee doctrine to
workers’ compensation cases. Id. at 347; Falge, 2017 IL App (2d) 160242, ¶ 15.
¶ 28 The Act specifically incorporates the borrowed-employee doctrine and extends the
immunity of the exclusive-remedy provision to borrowing and loaning employers. 820 ILCS
305/1(a)(4) (West 2012); Falge, 2017 IL App (2d) 160242, ¶ 14. Section 1(a)(4) provides:
“Where an employer operating under and subject to the provisions of this Act loans an
employee to another such employer and such loaned employee sustains a compensable
accidental injury in the employment of such borrowing employer and where such
borrowing employer does not provide or pay the benefits or payments due such injured
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employee, such loaning employer is liable to provide or pay all benefits or payments due
such employee under this Act and as to such employee the liability of such loaning and
borrowing employers is joint and several, provided that such loaning employer is in the
absence of agreement to the contrary entitled to receive from such borrowing employer
full reimbursement for all sums paid or incurred pursuant to this paragraph together
with reasonable attorneys’ fees and expenses in any hearings before the Illinois Workers’
Compensation Commission or in any action to secure such reimbursement.” 820 ILCS
305/1(a)(4) (West 2012).
¶ 29 Significantly, too, section 1(a)(4) further provides that “[a]n employer whose business or
enterprise or a substantial part thereof consists of hiring, procuring or furnishing employees to or
for other employers operating under and subject to the provisions of this Act for the performance
of the work of such other employers and who pays such employees their salary or wages
notwithstanding that they are doing the work of such other employers shall be deemed a loaning
employer within the meaning and provisions of this Section.” Id.
¶ 30 Plaintiff contends that, as a “threshold” matter, he was entitled to summary judgment on
the exclusive-remedy defense because Android neither paid plaintiff’s workers’ compensation
insurance premiums or benefits nor was obliged to reimburse Staff on Site for the expenses.
Moreover, plaintiff contends, Android failed to establish the existence of a borrowed-employee
relationship and thus was not entitled to immunity under the Act.
¶ 31 A. Payment of or Obligation to Reimburse for Workers’
Compensation Premiums or Benefits
¶ 32 We turn first to plaintiff’s position that the payment of or obligation to reimburse for
workers’ compensation premiums or benefits should be considered a prerequisite for exclusive-
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remedy protection under the Act. To hold otherwise, plaintiff contends, would be to turn the
Act’s exclusive-remedy protection into a “sword instead of a shield.” But plaintiff’s argument
fails to appreciate the framework of the borrowed-employee relationship as set forth in section
1(a)(4).
¶ 33 The plain language of section 1(a)(4) explicitly contemplates that the loaning employer,
rather than the borrowing employer, may be the entity that provides or pays the workers’
compensation premiums or benefits. See id. Specifically, “where such borrowing employer does
not provide or pay the benefits or payments due such injured employee, such loaning employer is
liable to provide or pay all benefits or payments due such employee under this Act.” Id. Yet the
statute further specifies that the liability of the borrowing and loaning employers is joint and
several and that the loaning employer is, “in the absence of [an] agreement to the contrary,”
entitled to reimbursement from the borrowing employer “for all sums paid or incurred pursuant
to this paragraph,” in addition to the specified attorney fees and expenses. Id.
¶ 34 Thus, “regardless of which of the two employers pays the workers[’] compensation
benefits, the exclusivity provision of the Act immunizes both the borrowing employer and the
lending employer from further claims.” Illinois Insurance Guaranty Fund v. Virginia Surety Co.,
2012 IL App (1st) 113758, ¶ 19. The legislature “did not require both a lending employer and
borrowing employer to procure identical coverage for the same employees.” Id.
¶ 35 Here, the contract between Android, as the borrowing employer, and Staff on Site, as the
loaning employer, required Staff on Site to maintain workers’ compensation coverage for the
temporary employees it provided to Android. Staff on Site, as agreed, maintained workers’
compensation coverage for plaintiff. Plaintiff filed a workers’ compensation claim against Staff
on Site and received workers’ compensation benefits.
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¶ 36 Plaintiff nonetheless contends that there must be a reimbursement requirement in order to
maintain exclusive-remedy protection under the Act. In other words, according to plaintiff,
Android is not entitled to exclusive-remedy protection, because it was not obligated to reimburse
Staff on Site for the workers’ compensation premiums or benefits. Plaintiff insists that nothing in
the contract between Staff on Site and Android indicates that Staff on Site has a right of
reimbursement.
¶ 37 However, there was no need to incorporate a right of reimbursement into the contract.
The reimbursement right is explicitly set forth in section 1(a)(4). The statute specifies that the
liability of the borrowing and loaning employers is joint and several and that the loaning
employer is “entitled to receive from such borrowing employer full reimbursement for all sums
paid or incurred pursuant to this paragraph,” in addition to the specified attorney fees and
expenses. 820 ILCS 305/1(a)(4) (West 2012). The statute also provides that there may be an
“agreement to the contrary.” Id. There was an agreement to the contrary here whereby Staff on
Site was responsible for workers’ compensation coverage. An agreement to the contrary, as
contemplated by the statute, does not eliminate a borrowing employer’s right to exclusive-
remedy protection under the Act. See Chaney v. Yetter Manufacturing Co., 315 Ill. App. 3d 823,
826-27, 830 (2000).
¶ 38 The court in Chaney rejected essentially the same argument plaintiff makes here. The
plaintiff was an employee of a temporary placement agency. Id. at 825. The agency placed the
plaintiff at Yetter Manufacturing Company (Yetter). Id. The agreement between the agency and
Yetter provided that the agency was responsible for workers’ compensation and general liability
coverage for all temporary employees and that the agency indemnified and held Yetter harmless
“from any judgment, finding, or assessment of liability under the Act or the laws of Illinois” for
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a temporary employee’s injuries. Id. The plaintiff was injured in a work-related accident. Id.
After recovering workers’ compensation benefits from the agency, the plaintiff filed a personal-
injury suit against Yetter. Id. The trial court granted summary judgment in Yetter’s favor on the
exclusive-remedy defense under the Act by virtue of the borrowed-employee relationship. Id. at
825-26.
¶ 39 In affirming, the appellate court rejected the plaintiff’s argument that the agreement
between the agency and Yetter, whereby the agency was responsible for workers’ compensation
claims and agreed to indemnify and hold Yetter harmless from any such claims, eliminated the
exclusive-remedy protection. Id. at 830. In analyzing section 1(a)(4), the appellate court reasoned
that
“with respect to an injured employee, the liability of the loaning and borrowing
employers is joint and several; as between employers, the borrowing employer is
primarily liable and the loaning employer [is] secondarily liable, the latter being required
to pay only when the borrowing employer fails to do so, and is then entitled to
reimbursement from the borrowing employer.” Id. at 826-27.
The loaning employer’s right to reimbursement, however, may be waived by an agreement
between the loaning and borrowing employers. Id. at 827. Accordingly, the appellate court held,
“[t]o adopt plaintiff’s argument would require us to ignore the Act’s explicit provisions making
borrowing and loaning employers jointly and severally liable to the employee.” Id. at 830; accord
Reichling v. Touchette Regional Hospital, Inc., 2015 IL App (5th) 140412, ¶ 42 (“We, therefore,
reject the plaintiff’s argument that [the borrowing employer] should be subject to common law
tort liability in this case because, pursuant to its agreement with [the temporary staffing agency],
it was not liable under the Act.”).
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¶ 40 Plaintiff discounts Chaney and Reichling because those decisions contain “no
reimbursement discussion.” His position is that “[e]xclusive remedy protection is predicated
upon an obligation to pay for [workers’] compensation insurance and claims, either directly or
with full reimbursement by employers, including borrowing employers.” However, none of the
cases upon which plaintiff relies involved a borrowed-employee relationship under section
1(a)(4). See Ioerger v. Halverson Construction Co., 232 Ill. 2d 196 (2008) (joint venturer);
Forsythe v. Clark USA, Inc., 224 Ill. 2d 274 (2007) (parent corporation); Burge v. Exelon
Generation Co., 2015 IL App (2d) 141090 (sole member of employer limited liability company);
Kay v. Centegra Health System, 2015 IL App (2d) 131187 (joint employer); Schmidt v. Milburn
Brothers, Inc., 296 Ill. App. 3d 260, 269 (1998) (joint employer or joint venturer).
¶ 41 The issue in Ioerger, for instance, was whether a coventurer was entitled to invoke the
Act’s exclusive-remedy protection. Ioerger, 232 Ill. 2d at 202-05. Midwest Foundation
Corporation (Midwest) and Halverson Construction Company, Inc. (Halverson), entered into a
joint-venture agreement in connection with a bridge-repair project; their contract provided that
profits and losses would be shared 60/40, respectively, with each making proportional, periodic
contributions. Id. at 198-99. Their contract further provided that Midwest was responsible for
workers’ compensation insurance but was entitled to reimbursement from the joint venture for
the incurred costs. Id. at 199. The plaintiffs were employed by Midwest and suffered work-
related injuries; they brought workers’ compensation claims against Midwest and received
benefits. Id. at 199-200. It was undisputed that under section 5(a) of the Act (820 ILCS 305/5(a)
(West 2000)) the plaintiffs’ exclusive remedy against Midwest was the workers’ compensation
claims. Ioerger, 232 Ill. 2d at 200. However, the plaintiffs also brought a personal-injury action
against Halverson and the joint venture. Id.
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¶ 42 In holding that Halverson and the joint venture were likewise entitled to the Act’s
exclusive-remedy protection, the supreme court reasoned that Halverson was Midwest’s agent,
as a coventurer with Midwest. Id. at 202. The court further reasoned that the joint venture was
“inseparable from its constituent entities, Midwest and Halverson,” such that, because “[b]oth of
those entities” were “immunized by the exclusive remedy provision[ ] ***, it necessarily follows
that the [j]oint [v]enture was likewise shielded.” Id. at 203.
¶ 43 The supreme court further explained that allowing the joint venture to invoke the
exclusive-remedy provision was “mandated by the principles underlying the Act’s remedial
scheme.” Id. That is, “allowing a party who has paid nothing toward an injured employee’s
workers’ compensation benefits to nevertheless invoke the Act’s immunity to escape tort liability
for the employee’s injuries would be tantamount to allowing the party ‘to have its cake and eat it
too.’ ” Id. (quoting Forsythe, 224 Ill. 2d at 298 (holding that a parent corporation was not entitled
to the Act’s exclusive-remedy protection afforded its subsidiary/employer)). “By the same token,
subjecting a party to tort liability for an employee’s injuries notwithstanding the fact that the
party has borne the costs of the injured employee’s workers’ compensation insurance would be
the same as declaring that a party who has paid for the cake may neither keep it nor eat it.” Id.
The court concluded that, “[a]s these metaphors illustrate, the immunity afforded by the Act’s
exclusive remedy provision[ ] is predicated on the simple proposition that one who bears the
burden of furnishing workers’ compensation benefits for an injured employee should not also
have to answer to that employee for civil damages in court.” Id.
¶ 44 In Burge, this court cited the rationale in Ioerger and Forsythe in holding that the
defendant, Exelon Generation Company, LLC (Exelon), which was the sole member of the
employer Exelon Nuclear Security, LLC (ENS), failed to establish that it was entitled to
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exclusive-remedy protection. Burge, 2015 IL App (2d) 141090, ¶¶ 10-14. The plaintiff in Burge
suffered a work-related accident at ENS; he filed and settled a workers’ compensation claim
against ENS. Id. ¶ 2. The plaintiff then filed a negligence action against Exelon. Id. ¶ 1. Exelon
moved to dismiss on the ground that the plaintiff’s exclusive remedy was under the Act. Id.
Exelon argued that, “because it had reimbursed ENS for workers’ compensation payments, and
because of its authority to manage ENS’s affairs, it was cloaked with the same immunity as
ENS.” Id. ¶ 6. The trial court agreed and granted Exelon’s motion to dismiss. Id. ¶ 1.
¶ 45 In reversing, we rejected Exelon’s argument that it was entitled to immunity as the agent
of ENS, because Exelon failed to establish that ENS had any right to control Exelon. Id. ¶ 9. We
also rejected Exelon’s argument that it was entitled to immunity based upon its alleged payment
of workers’ compensation benefits, because Exelon failed to prove the purported payment by
affidavit and the agreement between Exelon and ENS was silent regarding the obligation to
provide workers’ compensation benefits. Id. ¶¶ 12-17.
¶ 46 In Kay, we affirmed the grant of summary judgment in the defendant’s favor on the
exclusive-remedy defense, because the evidence established that the defendant was a joint
employer of the plaintiff. Kay, 2015 IL App (2d) 131187, ¶ 22. In doing so, we noted that the
defendant paid for the plaintiff’s workers’ compensation insurance. Id. In Schmidt, the court
reversed the grant of summary judgment in the defendants’ favor, on the ground that there were
genuine issues of material fact as to whether the defendants were entitled to the Act’s exclusive-
remedy protection as joint employers or joint venturers. Schmidt, 296 Ill. App. 3d at 265-70. The
court pointed out that to afford the defendants immunity without any corresponding obligation in
securing and paying for workers’ compensation insurance and benefits would turn the exclusive-
remedy provision “into a sword, instead of a shield.” Id. at 269-70.
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¶ 47 Plaintiff contends that these cases stand for the general principle that the Act’s exclusive-
remedy provision is predicated on the payment of or obligation to reimburse for workers’
compensation premiums or benefits. Initially, we note our recent decision in Hiatt v. Illinois Tool
Works, 2018 IL App (2d) 170554, ¶¶ 64-67, which neither party cites, in which we held that the
defendant distributor was entitled to invoke the exclusive-remedy defense as a joint venturer
with the manufacturer employer even though the defendant did not pay for the workers’
compensation benefits. In Hiatt, we pointed out that Burge was “predicated on the fact that the
entities were separate,” as it was established that ENS had no right to control Exelon and was
therefore not ENS’s agent. Id. ¶ 66 (citing Burge, 2015 IL App (2d) 141090, ¶ 19). In Hiatt, we
also pointed out that “Kay never held that immunity under the exclusive-remedy provision
extends only to members of a joint venture that contribute to workers’ compensation. Kay did not
even address that argument.” Id. ¶ 64 (citing Kay, 2015 IL App (2d) 131187, ¶¶ 22, 29).
Accordingly, plaintiff’s reliance upon these cases is misplaced.
¶ 48 Regardless, as stated, none of the cases upon which plaintiff relies involved a borrowed-
employee relationship under section 1(a)(4). Indeed, the court in Schmidt explicitly recognized
the distinction: “We have attempted to steer clear of the ‘borrowed’ or ‘loaned’ employee
decisions. Those cases ordinarily deal with the employee’s contractual expectations, a matter that
is of little import in this case. *** This case *** is not about ‘loaned’ or ‘borrowed’ employees.”
Schmidt, 296 Ill. App. 3d at 266-67.
¶ 49 Plaintiff persists that allowing Android to invoke immunity under the exclusive-remedy
provision of the Act would be tantamount to “allowing a party to have its cake and eat it too.”
The metaphor is inapt here. This case involves whether a borrowed-employee relationship
existed under section 1(a)(4) of the Act. There was no cake here for either employer; there was
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joint and several liability. Under the plain language of section 1(a)(4), the liability of the
borrowing and loaning employers is joint and several, and the loaning employer is, “in the
absence of [an] agreement to the contrary,” entitled to reimbursement from the borrowing
employer “for all sums paid or incurred pursuant to this paragraph,” in addition to the specified
attorney fees and expenses. 820 ILCS 305/1(a)(4) (West 2012). Here, there was in fact a specific
agreement to the contrary. Plaintiff’s argument would have us ignore the plain language of the
statute. Accordingly, plaintiff presents no persuasive argument upon which to hold that he was
entitled to summary judgment on the ground that Android neither paid his workers’
compensation insurance premiums or benefits nor was obliged to reimburse Staff on Site for the
expenses.
¶ 50 B. Borrowed-Employee Relationship
¶ 51 Plaintiff nevertheless argues that, at a minimum, there were genuine issues of material
fact as to whether a borrowed-employee relationship existed. To invoke the Act’s exclusive-
remedy provision, Android was required to establish that under section 1(a)(4) Staff on Site was
a loaning employer and Android was a borrowing employer. Plaintiff does not dispute that Staff
on Site was a loaning employer under section 1(a)(4). As discussed, section 1(a)(4) specifically
identifies a loaning employer as one
“whose business or enterprise or a substantial part thereof consists of hiring, procuring or
furnishing employees to or for other employers operating under and subject to the
provisions of this Act for the performance of the work of such other employers and who
pays such employees their salary or wages notwithstanding that they are doing the work
of such other employers.” Id.
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The record establishes that, as a temporary staffing agency that contracted with Android to
provide temporary employees “with certain skills and abilities,” Staff on Site was a loaning
employer under section 1(a)(4). See Falge, 2017 IL App (2d) 160242, ¶ 16 (“There is no
question that Labor Ready [(a temporary staffing agency)] qualifies as a loaning employer.”).
¶ 52 We must determine, however, whether there was a genuine issue of material fact with
respect to whether Android qualified as a borrowing employer under the Act. To evaluate the
existence of a borrowed-employee relationship for purposes of the exclusive-remedy provision,
we must consider (1) whether the alleged borrowing employer had the right to direct and control
the manner in which the employee performed the work and (2) whether there was an express or
implied contract of hire between the employee and the alleged borrowing employer. A.J. Johnson
Paving, 82 Ill. 2d at 348; Falge, 2017 IL App (2d) 160242, ¶ 16. Whether a borrowed-employee
relationship existed is generally a question of fact. A.J. Johnson Paving, 82 Ill. 2d at 348; Falge,
2017 IL App (2d) 160242, ¶ 16. However, if the facts are undisputed and permit but a single
inference, the question may be resolved as a matter of law. A.J. Johnson Paving, 82 Ill. 2d at
348-49; Falge, 2017 IL App (2d) 160242, ¶ 16.
¶ 53 1. Direction and Control of Plaintiff’s Work
¶ 54 In resolving whether a borrowed-employee relationship existed, the primary
consideration is the first element set forth above—whether the alleged borrowing employer had
the right to direct and control the manner in which the employee performed the work. A.J.
Johnson Paving, 82 Ill. 2d at 348-49; Falge, 2017 IL App (2d) 160242, ¶ 17. The following
factors support a determination that the borrowing employer had the right to direct and control
the manner in which the employee performed the work: (1) the employee worked the same hours
as the borrowing employer’s employees; (2) the employee received instruction from the
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borrowing employer’s foreperson and was assisted by the borrowing employer’s employees; (3)
the loaning employer’s supervisors were not present; (4) the borrowing employer was permitted
to tell the employee when to start and stop working; and (5) the loaning employer relinquished
control of its equipment to the borrowing employer. A.J. Johnson Paving, 82 Ill. 2d at 349;
Falge, 2017 IL App (2d) 160242, ¶ 18. 2
¶ 55 This court’s recent decision in Falge, holding that a borrowed-employee relationship
existed for purposes of the Act’s exclusive-remedy provision, involved facts analogous to the
instant case. There, too, the plaintiff was employed by a temporary staffing agency, Labor Ready
Midwest (Labor Ready). Falge, 2017 IL App (2d) 160242, ¶ 1. Labor Ready assigned the
plaintiff to work for the defendant, Lindoo Installations, Inc. (Lindoo). Id. The plaintiff was
injured while setting up industrial shelving at a warehouse and filed for and obtained workers’
compensation benefits from Labor Ready. Id. The plaintiff then filed a negligence lawsuit
against Lindoo. Id. The trial court granted Lindoo summary judgment on its exclusive-remedy
defense. Id. This court affirmed. Id.
¶ 56 We held that the undisputed material facts demonstrated that Lindoo directed and
controlled the plaintiff’s work. Id. ¶¶ 22-24, 27. While the plaintiff testified at his deposition that
2
Quoting Gundich v. Emerson-Comstock Co., 21 Ill. 2d 117, 123 (1960), a Structural
Work Act case, plaintiff contends that the test for whether a borrowing employer had the right to
direct and control the manner in which the employee performed the work should be whether the
employee was “ ‘wholly subject to [the borrowing employer’s] control and freed during such
time from the direction and control of his master.’ ” Plaintiff’s argument ignores countless
decisions setting forth the relevant analysis, including the supreme court’s decision in A.J.
Johnson Paving, 82 Ill. 2d at 348-49.
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there did not appear to be any direct supervisors from Lindoo who were actually directing his
work, he further testified that he was taking directions from Lindoo’s employees when he was
injured. Id. ¶ 22. The plaintiff testified that the directions were difficult to understand because
many of Lindoo’s employees spoke Spanish but that he understood what he was supposed to do,
through the use of hand gestures and other nonverbal communication. Id. The evidence also
established that Lindoo set the plaintiff’s work schedule, controlled when he took his breaks, and
provided him with the tools to perform the tasks it assigned. Id. Moreover, the contract between
Labor Ready and Lindoo stated that all temporary employees provided to Lindoo were under
Lindoo’s supervision and direction. Id. ¶ 23.
¶ 57 Likewise, here, there were no genuine issues of material fact with respect to Android’s
direction and control of plaintiff’s work. First, regarding the hours plaintiff worked, it was
undisputed that there were two shifts at Android, that plaintiff worked primarily the second shift,
and that plaintiff’s working hours were the same as those of Android’s second-shift employees.
Plaintiff contends that “Brown cannot say how many Android workers, as opposed to temporary
workers, were on site at those times.” This fact is not material. The determinative issue is
whether plaintiff worked the same hours as Android’s employees. See id. ¶ 17. Plaintiff cites no
evidence that the hours he worked varied from those worked by Android’s employees.
¶ 58 Regarding whether plaintiff received instruction and assistance from Android supervisors
and employees, plaintiff testified that “Mike and Wil” were the supervisors “who instructed
[him] on what to do.” Plaintiff argues that his deposition testimony merely established his
“assumption” that these individuals worked for Android. But a review of the entirety of
plaintiff’s deposition testimony, as well as Brown’s deposition testimony, reflects multiple
references to these individuals as supervisors at Android. The only reasonable inference that can
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be drawn from the undisputed facts is that plaintiff received instruction from Android
supervisors.
¶ 59 Plaintiff argues that, regardless, as set forth in his verified statement, “[b]y the day of the
accident, [he] worked independently, with less than a minute of instruction from Android.” The
fact that plaintiff’s skill as a forklift operator allowed him control over the operation of the
equipment is not material. See A.J. Johnson Paving, 82 Ill. 2d at 349 (the “fact that claimant’s
skill as an operator allowed him to exercise control over the paving machine and the technical
details of the paving operation was insufficient to preclude a finding that [the defendant] had the
right to control the manner of the work”). The issue is the source of plaintiff’s instruction and
assistance. Brown testified that Android employees provided plaintiff’s assignments and that
there were always “startup” meetings before shifts. There was no evidence that anyone at Staff
on Site provided instruction or assistance to plaintiff on his duties and operation of a forklift at
Android. Thus, the record demonstrates no genuine issue of material fact with respect to
plaintiff’s receipt of instruction and assistance from Android supervisors and employees.
¶ 60 As for the third factor—the presence of any Staff on Site supervisors—plaintiff concedes
that no Staff on Site supervisors were present at Android while he worked there.
¶ 61 Regarding whether Android was permitted to tell plaintiff when to start and stop working,
in his verified statement, plaintiff asserted that he never received an employee handbook from
Android and that he “was never told [he] had to start or stop working when told by Android.”
The latter statement lacks clarity, and in any event neither statement creates a genuine issue of
material fact. As discussed, it was undisputed that there were two shifts at Android. And Brown
testified that, when a temporary employee arrives, “we say *** here’s the hours of work.” Brown
also attested that Android controlled plaintiff’s starting time and ending time and had the
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discretion to give plaintiff fewer or more hours. Moreover, the testimony established that
plaintiff reported to Android; plaintiff was not required to report to Staff on Site before or after a
shift.
¶ 62 Finally, it was undisputed that plaintiff used Android’s equipment to perform his duties
as a forklift operator. Android alleged in its exclusive-remedy defense that “[a]t all times
relevant [p]laintiff used equipment provided by [Android].” Plaintiff admitted this allegation in
his reply to Android’s defense. Brown also specifically testified that the equipment plaintiff used
was owned or leased by Android. Accordingly, viewing the evidence in the light most favorable
to plaintiff, the record demonstrates no genuine issue of material fact with respect to Android’s
direction and control of plaintiff’s work.
¶ 63 Plaintiff nevertheless contends that summary judgment in Android’s favor was improper
because the evidence demonstrated that Android lacked the power to terminate him. Plaintiff
cites Brown’s deposition testimony that Android “can ask the staffing agency not to have [the
worker] return” but “we don’t fire them.” Plaintiff also points out that the contract between
Android and Staff on Site lacked a specific provision granting Android the right to refuse a
particular worker.
¶ 64 We recognized in Falge that whether a borrowing employer had the right to discharge the
employee can be an additional consideration in determining whether the borrowing employer had
the right to direct and control the manner of the employee’s work. Falge, 2017 IL App (2d)
160242, ¶ 18. But, as we explained in Falge, the borrowing employer need not have the power to
dismiss the employee from his general employment. Id. Rather, the borrowing employer must
have the power to dismiss the employee from the borrowed employment. Id.; accord Chaney, 315
Ill. App. 3d at 829.
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¶ 65 Here, while Android lacked the power to terminate plaintiff from his general employment
with Staff on Site, the record demonstrates no genuine issue of material fact with respect to
Android’s power to dismiss plaintiff from his temporary employment at Android. Brown
testified that Android “can ask the staffing agency not to have [the worker] return” and to “end
their assignment here.” Brown further confirmed that Android had the right to remove the
worker from its facility and tell the worker to return to Staff on Site. Plaintiff’s position that Staff
on Site could continue to send the worker to Android is unfounded. As Brown testified, that
would “get old in a hurry.” Indeed, plaintiff acknowledged as much when he testified that
Android “can compel [his] employer to get rid of [him].” Plaintiff’s representations in his
verified statement regarding his beliefs and what he was told with respect to the relationship
between Android and Staff on Site do not change the result. See Morales v. Herrera, 2016 IL
App (1st) 153540, ¶ 28 (the plaintiff’s “personal definition of an ‘employer’ has no bearing on
whether [the defendant] was her employer as defined by Illinois law”).
¶ 66 As a final matter, plaintiff contends that summary judgment in Android’s favor was
improper because it was undisputed that he received his salary from Staff on Site. This precise
argument was rejected by our supreme court in A.J. Johnson Paving, 82 Ill. 2d at 349 (the court
did not “deem relevant” that the employee was paid by the loaning employer rather than the
borrowing employer; “[t]he mere fact that the employee does not receive his wages from the
[borrowing] employer will not defeat the finding of a loaned-employee situation”). Accord
Falge, 2017 IL App (2d) 160242, ¶ 23 (“It is inconsequential who actually was paying plaintiff
for his services.”). Thus, the record demonstrates no genuine issue of material fact with respect
to Android’s direction and control of plaintiff’s work.
¶ 67 2. Express or Implied Contract of Hire Between Android and Plaintiff
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¶ 68 An employee’s consent to the requisite contract of hire with the borrowing employer may
be implied in the context of a business like a temporary employment agency. Falge, 2017 IL App
(2d) 160242, ¶ 25; Morales, 2016 IL App (1st) 153540, ¶¶ 31-33; Chaney, 315 Ill. App. 3d at
829. In Falge, the testimony demonstrated that the plaintiff knew he was working for Lindoo
through Labor Ready and that he accepted the temporary employment assignment. Falge, 2017
IL App (2d) 160242, ¶ 25. Thus, the plaintiff impliedly consented to the borrowed-employee
relationship. Id. In Morales, the temporary employment agency sent the plaintiffs to work at the
defendant’s facility. Morales, 2016 IL App (1st) 153540, ¶ 32. The evidence established that the
plaintiffs accepted the assignment when they “set out to go there” and accordingly had an
implied contract for hire with the defendant. Id. ¶¶ 31-32. In Chaney, there was no dispute that
the plaintiff knew she was working for the defendant through the temporary placement agency.
Chaney, 315 Ill. App. 3d at 829-30. The plaintiff therefore impliedly agreed to the borrowed-
employee relationship. Id. at 830.
¶ 69 Here, too, the evidence established that Staff on Site, as a temporary staffing agency,
placed plaintiff at Android’s facility. Plaintiff accepted the assignment and worked for Android
as a forklift operator. Thus, plaintiff impliedly agreed to the borrowed-employee relationship.
Plaintiff, however, contends that we should consider the express contract between Android and
Staff on Site rather than looking to an implied contract. The court in Morales rejected the same
argument in holding that “the agreement between [the defendant] and [the temporary
employment agency] has no bearing on [the] plaintiffs’ implied contract for hire with [the
defendant].” Morales, 2016 IL App (1st) 153540, ¶ 33. The “loaned employee concept depends
on a contract of hire ‘between the employee and the special employer,’ not the details of the
contract between the two employers.” Id. (quoting A.J. Johnson Paving, 82 Ill. 2d at 348).
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Accordingly, the evidence establishes that plaintiff had an implied contract for hire with
Android.
¶ 70 In sum, viewing the evidence strictly against Android and liberally in favor of plaintiff,
we conclude that there is no genuine issue of material fact with respect to the existence of a
borrowed-employee relationship. The trial court, therefore, properly entered summary judgment
in favor of Android on the exclusive-remedy defense set forth in the Act.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, we affirm the trial court’s order granting summary judgment in
favor of Android.
¶ 73 Affirmed.
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