Nutt v. Pierce Waste Oil Service, Inc.

445 N.E.2d 928, 112 Ill. App. 3d 612, 68 Ill. Dec. 284, 1983 Ill. App. LEXIS 1475
CourtAppellate Court of Illinois
DecidedFebruary 15, 1983
Docket82-308
StatusPublished
Cited by11 cases

This text of 445 N.E.2d 928 (Nutt v. Pierce Waste Oil Service, Inc.) 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
Nutt v. Pierce Waste Oil Service, Inc., 445 N.E.2d 928, 112 Ill. App. 3d 612, 68 Ill. Dec. 284, 1983 Ill. App. LEXIS 1475 (Ill. Ct. App. 1983).

Opinion

JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Bobby E. Nutt filed a four-count complaint seeking compensatory and exemplary damages for personal injuries allegedly occasioned by the negligence of defendants Pierce Waste Oil Services, Inc., and Central Refining, Inc. Defendants responded with the affirmative defense that plaintiff was barred from the common law action by reason of the exclusive remedy provided under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). After a hearing on the merits of the defense, the circuit court of Peoria County entered summary judgment in defendants’ favor.

The facts are undisputed. At the time plaintiff received his injuries, he considered himself an employee of Industrial Fuels, Inc. Industrial Fuels paid plaintiff, withheld his Federal and State income taxes, maintained and administered his group insurance plan, and identified itself as his employer before the Industrial Commission. Its business purpose was to process waste oil into fuel oil, which it sold and transported, and to perform mechanical work upon the transporting vehicles. At the time of his injury, plaintiff was performing such mechanical work at a garage owned by Industrial Fuels and in which all mechanical tools were located.

Pierce Waste Oil Services’ business purpose was to pick up waste oil at service stations and garages and transport it for processing. Central Refining’s business purpose was to process waste oil into motor oil. The three companies had separate addresses but operated at a common eight-acre site under common ownership. The vehicle on which plaintiff was working at the time of his injury was owned by Pierce and cleaned by Central Refining. Each defendant was asked by interrogatory whether it employed plaintiff at the time of his injury. Central Refining answered “No.” Pierce responded,

“No, Plaintiff was employed by Industrial Fuels, Inc., as a mechanic, his duties were to maintain and repair equipment owned by Pierce Waste Oil Services, Inc., because Industrial Fuels, Inc., does not own any equipment.”

Presented for our review are the issues of whether plaintiff was a joint or loaned employee of, or to, defendants. While defendants have elected to respond to only the first of these issues, their interrelationship precludes a waiver of the alternate issue.

Considering first the issue of whether plaintiff was a joint employee of Industrial Fuels and defendants, a review of the Illinois decisions on this question reveals situations which differ from the one at bar. In Page Engineering Co. v. Industrial Com. (1926), 322 Ill. 60, 152 N.E. 483, a night watchman was required to watch the properties of two companies and was paid equally by each. In Frederick A. Stresenreuter, Inc. v. Industrial Com. (1926), 322 Ill. 187, 152 N.E. 548, the situation was the same. In Krawiec v. Industrial Com. (1939), 372 Ill. 560, 25 N.E.2d 27, a group of citizens and merchants incorporated an association and recommended plaintiff’s decedent as a patrolman. He was paid by the association and the city of Chicago Heights, which also furnished a car. In Hudson v. Industrial Com. (1944), 387 Ill. 228, 56 N.E.2d 423, plaintiffs’ decedent was paid by an individual employer and a bus company, of which the employer was manager and principal stock owner. In each of these cases, it was found that the employee was serving each of his employers and was a joint employee. In American Stevedores Co. v. Industrial Com. (1951), 408 Ill. 445, 97 N.E.2d 329, the plaintiff hired the decedent employee and was a conduit through which he received his wages. Another company was served and exercised complete control over him. In City of Wilmington v. Industrial Com. (1972), 52 Ill. 2d 587, 289 N.E.2d 418, the deceased employee was employed and paid by a technical institute. During evenings and weekends, he and others used institute machinery for the benefit of plaintiff, who did not pay them. In each of the latter two cases, one employer was served and no joint employment was found.

Defendants place particular emphasis on Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 360 N.E.2d 1245, a decision which considered the possibility of joint or borrowed employment. The plaintiff had been hired as a maid by Augustine’s Motor Lodge, underwent an operation, and became a miscellaneous worker. Although she continued to be paid by the motor lodge, her sole duty was to work in a laundry room located in a restaurant owned by defendant, where she worked under defendant’s direction. Both the motor lodge, apparently owned by Marra Corporation (see Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 238, 360 N.E.2d 1245, 1251 (dissenting opinion)), and the restaurant benefited from her work. The court concluded:

“The foregoing facts indicate that plaintiff was under defendant’s direction and control at the time of her injury, that plaintiff agreed to work under defendant’s direction, and that defendant had the power to discharge plaintiff by barring her from the laundry room (see Fransen Construction Co. v. Industrial Com., 384 Ill. 616, 627-28, 52 N.E.2d 241, 246 (1943)). These factors all indicate that plaintiff was a loaned employee. On the other hand, both the defendant and Augustine’s Motor Lodge benefitted from plaintiff’s work. The facts also indicate that plaintiff worked in the laundry room for approximately two years and would have continued indefinitely in that capacity were it not for her injury. Both of those factors might lead one to conclude that plaintiff was a joint employee. Plaintiff’s position differs from that of a joint employee, however, because she was hired and paid only by Augustine’s Motor Lodge and was under the direction and control of only the defendant. Nonetheless plaintiff was voluntarily and permanently employed in defendant’s establishment, subject to defendant’s direction and control. We, therefore, conclude that defendant was plaintiff’s ‘employer’ under the Workmen’s Compensation Act even though the relationship between plaintiff and defendant did not encompass all the characteristics of either joint or loaned employment. In other words, an implied employment contract existed between plaintiff and defendant.” Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 235-36, 360 N.E.2d 1245, 1249.

In the case at bar, plaintiff was performing his customary duties at Industrial Fuels, where the mechanic’s function for the three companies was centralized. Plaintiff testified that a Pierce employee told him that a baffle in the Pierce tanker needed a hole cut in it. He then proceeded to examine the project and begin work on it.

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Bluebook (online)
445 N.E.2d 928, 112 Ill. App. 3d 612, 68 Ill. Dec. 284, 1983 Ill. App. LEXIS 1475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nutt-v-pierce-waste-oil-service-inc-illappct-1983.