Leman v. Volmut

2023 IL App (1st) 221792, 242 N.E.3d 392
CourtAppellate Court of Illinois
DecidedOctober 26, 2023
Docket1-22-1792
StatusPublished

This text of 2023 IL App (1st) 221792 (Leman v. Volmut) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leman v. Volmut, 2023 IL App (1st) 221792, 242 N.E.3d 392 (Ill. Ct. App. 2023).

Opinion

2023 IL App (1st) 221792

FOURTH DIVISION Order filed: October 26, 2023

No. 1-22-1792

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

KEITH M. LEMAN, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) JASON A. VOLMUT, individually, CPU RX, INC., an ) Illinois Corporation, LISA R. NUCCI, individually, and ) No. 2019 L 3711 INTREN, LLC, an Illinois Corporation, ) ) Defendants ) ) (Jason A. Volmut, Defendant-Appellant; CPU RX, Inc., ) Honorable Defendant-Appellant; and Intren, LLC, Defendant- ) Gerald V. Cleary, Appellee.) ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Martin concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Ketith M. Leman, and the defendants, Jason A. Volmut and CPU RX, Inc.

(CPU), appeal from an order of the circuit court granting summary judgment in favor of the

defendant, Intren, LLC (INTREN), based upon the exclusive remedy provision set forth in section No. 1-22-1792

5(a) of the Workers’ Compensation Act (Act) (820 ILCS 305/5(a) (West 2020)). For the reasons

which follow, we affirm.

¶2 The plaintiff filed the instant negligence action against the defendants, Volmut, Lisa R.

Nucci, and Volmut’s alleged employers CPU and Forum Coworking, LLC, seeking damages for

injuries he sustained on January 9, 2019, when he was struck by a vehicle driven by Nucci. 1

According to the complaint, the vehicle driven by Volmut failed to stop at a stop sign and struck

the vehicle being driven by Nucci, causing Nucci’s vehicle to strike the plaintiff, a pedestrian.

¶3 Nucci answered the complaint and filed a counterclaim against Volmut. Volmut

answered the complaint and counterclaim and filed a third-party complaint for contribution against

INTREN and Pinto Construction (PINTO). Nucci and CPU also filed third-party complaints for

contribution against INTREN and PINTO.

¶4 On September 16, 2020, the plaintiff filed his First Amended Complaint against Volmut,

CPU, Nucci, and INTREN, seeking damages for injuries he sustained on January 9, 2019. Relevant

to the instant appeal is Count V of that complaint, a negligence action against INTREN, which

was engaged in construction activities in the area where the plaintiff was struck by Nucci’s vehicle.

On December 7, 2020, INTREN filed a motion pursuant to section 2-619 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619 (West 2018)) seeking dismissal of the plaintiff’s claim

against it. The motion was supported by the July 15, 2020, deposition of the plaintiff. INTREN

alleged that it was the borrowing employer of the plaintiff and, therefore, immune from common

law liability for his injuries under the provisions of section 5(a) of the Act. Finding that certain

sections of a March 12, 2012, Master Subcontract Agreement (MSA) entered into between

INTREN and PINTO created questions of fact as to the employment relationship between the

1 Forum Coworking, LLC, was voluntarily dismissed as a defendant.

-2- No. 1-22-1792

plaintiff and INTREN, the circuit court denied INTREN’s section 2-619 motion on February 17,

2021, without prejudice to its right to raise the section 5(a) bar as an affirmative defense.

¶5 Subsequently, INTREN filed a motion pursuant to section 2-1005 of the Code (735 ILCS

5/2-1005 (West 2020)) seeking summary judgment in its favor on Count V of the plaintiff’s First

Amended Complaint. In addition to the plaintiff’s deposition, the motion was supported by the

deposition testimony of its employees, Brian Miller, Tim Kuhn, and Martin Kominoski, and the

deposition testimony of Terrence Senese, a PINTO employee. The motion again asserted that

INTREN was, as a matter of law, the borrowing employer of the plaintiff and, therefore, immune

from common law liability for his injuries under the provisions of section 5(a) of the Act. On July

18, 2022, the circuit court, again relying on the provisions of the MSA entered into between

INTREN and PINTO, found that genuine issues of fact exist on the question of whether INTREN

was the borrowing employer of the plaintiff and denied its motion for summary judgment.

¶6 On August 16, 2022, INTREN filed a motion to reconsider the July 18, 2022, denial of its

motion for summary judgment. On October 5, 2022, the circuit court entered an order granting the

motion to reconsider and entered summary judgment in favor of INTREN and against the plaintiff.

The circuit court found that there was no question of fact on the question of INTREN’s status as

the borrowing employer of the plaintiff, and, therefore, the plaintiff’s action against INTREN is

barred by the exclusive remedy provision of section 5(a) of the Act.

¶7 On November 4, 2022, the plaintiff filed a motion to reconsider the circuit court’s order of

October 5, 2022, granting summary judgment in favor of INTREN. The circuit court denied the

plaintiff’s motion to reconsider and on November 10, 2022, entered an order pursuant to Illinois

Supreme Court Rule 304(a) (eff. Mar. 8, 2016), finding that there is no just reason to delay either

enforcement of or appeal from its October 5, 2022, judgment.

-3- No. 1-22-1792

¶8 The plaintiff filed his notice of appeal on November 30, 2022. On December 6, 2022, CPU

filed its notice of appeal and joined in the appeal filed by the plaintiff pursuant to Illinois Supreme

Court Rule 303(a)(3) (eff. July 1, 2017). On December 7, 2022, Volmut filed his notice of appeal

and also joined in the appeal filed by the plaintiff.

¶9 Our jurisdiction in this matter attaches pursuant to Illinois Supreme Court Rule 304(a).

¶ 10 This case comes to us on review of an order granting summary judgment in favor of

INTREN. Summary judgment should be granted only when the moving party is entitled to

judgment as a matter of law. 735 ILCS 5/2-1005 (c) (West 2020). In conducting our review, we

have examined the pleadings, depositions, and exhibits on file at the time of the entry of the order

appealed from in their light most favorable to the plaintiff. See Williams v. Manchester, 228 Ill. 2d

404, 417 (2008); Kolakowski v. Voris, 83 Ill. 2d 388, 397 (1980). If the evidentiary material could

lead to more than one reasonable conclusion or inference, we adopt the conclusion or inference

most favorable to the opponent of the motion. McIntosh v. Cueto, 323 Ill. App. 3d 384, 389 (2001).

Inferences and conclusions drawn from the evidentiary material must be reasonable. We are not

required to adduce remote factual possibilities in favor of the opponent of the motion. Elizondo v.

Ramirez, 324 Ill. App. 3d 67, 78 (2001). Our review of an order granting summary judgment is de

novo. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004); Outboard Marine Corp. v.

Liberty Mutual Insurance Co., 154 Ill. 2d 374, 382 (1993).

¶ 11 Only the plaintiff, CPU, and INTREN filed briefs in this appeal. In urging reversal of the

circuit court’s October 5, 2022, order granting summary judgment in favor of INTREN, the

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Bluebook (online)
2023 IL App (1st) 221792, 242 N.E.3d 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leman-v-volmut-illappct-2023.