NOTICE 2015 IL App (5th) 140412 Decision filed 07/16/15. The text of this decision may be NO. 5-14-0412 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
SHELLEY REICHLING, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 12-L-588 ) TOUCHETTE REGIONAL HOSPITAL, INC., ) Honorable ) Vincent J. Lopinot, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Welch concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Shelley Reichling, appeals the circuit court's order granting summary
judgment in favor of the defendant, Touchette Regional Hospital, Inc. (Touchette), on the
basis that her premises liability action was barred by the exclusive remedy provision of
the Illinois Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West 2008)) because
she was Touchette's borrowed employee at the time of her injury. On appeal, the plaintiff
argues that the circuit court erred in granting summary judgment in favor of Touchette
because there was a genuine issue of material fact as to whether she was Touchette's
borrowed employee. Finding no such issue of material fact, we affirm.
1 ¶2 BACKGROUND
¶3 On February 9, 2011, the plaintiff filed an application for adjustment of claim
pursuant to the Act (820 ILCS 305/1 et seq. (West 2008)) for injuries she sustained on
December 26, 2010, when she slipped and fell while working at Touchette as a registered
nurse through ReadyLink Healthcare (ReadyLink), a temporary healthcare staffing
agency. ReadyLink settled the workers' compensation claim on August 19, 2011, for
$50,125.18. Touchette was not a party to that claim.
¶4 On October 30, 2012, the plaintiff filed this premises liability action against
Touchette based on the same injury at issue in her workers' compensation claim, alleging
that she was injured on December 26, 2010, when she slipped on a wet floor in
Touchette's emergency department and fell, fracturing her knee. She alleged that
Touchette was negligent in that it failed to provide adequate warnings and failed to
barricade or otherwise segregate the area of the floor that had been mopped.
¶5 On April 30, 2014, Touchette filed a motion for summary judgment pursuant to
section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)) and
memorandum in support, arguing that the plaintiff's premises liability action was barred
by the exclusive remedy provision of the Act (820 ILCS 305/5(a) (West 2008)) because
she was Touchette's borrowed employee at the time of her injury. Touchette attached
numerous documents in support of its motion, including the plaintiff's deposition
transcript and answers to interrogatories and the written temporary services agreement
between ReadyLink and Touchette. After additional discovery, Touchette filed a
supplemental memorandum in support of its motion, attaching additional documents in 2 support, including portions of the deposition transcripts of two of its employees. The
plaintiff filed a response in opposition to Touchette's motion for summary judgment,
arguing that the motion should be denied because she was not an employee of Touchette
at the time of her injury. She attached numerous documents in support of her response,
including the agreement between ReadyLink and Touchette, portions of her deposition
transcript, portions of the deposition transcripts of several of Touchette's employees, and
three documents entitled "Touchette Regional Hospital Nursing Anecdotal Note."
¶6 The undisputed material facts can be summarized as follows. The plaintiff, a
registered nurse, was employed by ReadyLink, a temporary healthcare staffing agency
based in California. She never met anyone from ReadyLink in person. Her only contact
with ReadyLink was by telephone. Through ReadyLink, she worked as a temporary
registered nurse at Touchette and other healthcare facilities.
¶7 ReadyLink and Touchette had a written agreement whereby ReadyLink would
provide temporary healthcare staffing services to Touchette. The agreement provides that
workers placed at Touchette are ReadyLink employees and contains a restrictive
covenant prohibiting Touchette from hiring the workers. Under the agreement,
ReadyLink is responsible for paying the workers and for ensuring "that any and all State
and Federal Income Tax, Social Security Tax, State and Federal Unemployment Tax,
Disability Tax, Worker's Compensation coverage obligations and any other employment
law requirements for personnel provided under this Agreement are complied with and
paid as required by law." The agreement further provides that ReadyLink indemnifies
and holds Touchette harmless from any such responsibility. Pursuant to the agreement, 3 ReadyLink paid the plaintiff and provided her malpractice, general liability, and workers'
compensation insurance.
¶8 The agreement provides that Touchette is responsible for scheduling, supervising,
and evaluating the workers. Under the agreement, Touchette is responsible for
determining the proper patient treatment. The agreement further provides that Touchette
has the right to immediately terminate the services of any ReadyLink worker, if, in its
sole discretion, the worker is found to be incompetent or negligent, to have engaged in
misconduct, or to be unsatisfactory for any other reason.
¶9 The plaintiff worked at Touchette through ReadyLink during 2008, 2009, and
2010. When Touchette needed a temporary registered nurse to work a shift, it called
ReadyLink. ReadyLink then called the plaintiff to see if she was available. If she was
available, ReadyLink notified Touchette of her availability and then called her back to
confirm that she was to show up at Touchette to work that shift.
¶ 10 On November 20, 2008, the plaintiff was given a document on Touchette's
letterhead entitled "Memo of Understanding," along with other materials and information
regarding her work at Touchette. The document states, in pertinent part, that "the ability
to demonstrate skills and show proof of knowledge is necessary for competency of new
and annual training of employees, agencies, contracted [sic], volunteers, and students in
the hospital." The document further states that Touchette's education department was
providing her information necessary to assist in her safety while in her "tour of duty"
(emphasis in original) in its facility. The document notes that other materials provided to
her include information about Touchette's mission/vision, security, ergonomics, customer 4 service, life safety, emergency codes, hand hygiene, incident reporting, workplace
harassment, electrical safety, fire safety, compliance, and "HIPPA." She signed the
document, indicating that her employer was ReadyLink but acknowledging that
Touchette's unit manager, education department, or house supervisor on duty would be
her resource person for any questions she may have about safety information and hazard
facts. She also acknowledged that she had received an orientation/clinical information
packet/card on the above-listed topics and that the material was her responsibility while
on duty.
¶ 11 On May 17, 2009, the plaintiff was given Touchette's job description for a
registered nurse, which was on Touchette's letterhead. The job description, which the
plaintiff signed, included a summary of the job, the essential functions and duties of the
job, the qualifications for the job, the preferred skills and abilities for the job, the physical
demands of the job, and the duties and responsibilities of the job. Above the plaintiff's
signature was the following certification:
"I certify that I am able to perform the essential duties and physical/mental
functions listed above, and possess the required skills, knowledge, training,
education and experience outlined above. This document does not create an
employment contract, implied or otherwise, other than an 'at will' employment
relationship."
¶ 12 The plaintiff usually worked the night shift at Touchette, which was from 6:30
p.m. to 7 a.m. Her supervisor at Touchette was the house supervisor on her shift. The
5 house supervisor would tell her which department she was scheduled to work in that day,
but, other than that, she and the house supervisor had minimal contact.
¶ 13 When the plaintiff worked at Touchette, she worked with other hospital staff,
including full-time doctors and nurses. Touchette's doctors gave her orders, which she
followed. When she worked in the emergency room, she assisted other nurses working in
the emergency room.
¶ 14 No one from ReadyLink was ever present at Touchette to supervise the temporary
workers. Instead, Touchette was responsible for supervising them. The plaintiff did not
have to call ReadyLink before doing a task that one of Touchette's doctors or nurses
asked, or instructed, her to do.
¶ 15 Touchette provides temporary workers, such as the plaintiff, the same supplies as
any other employee, e.g., syringes, IV bags, IV lines, needles, and charting materials.
However, items such as scrubs, footwear, and stethoscopes are supplied by the individual
nurses, whether they are full-time employees or temporary workers.
¶ 16 Temporary workers, such as the plaintiff, are required to work the same shift hours
as full-time employees, and they cannot decide on their own to work over the set shift
hours. Only the department director can advise a worker (whether temporary or full-
time) to work over the set shift hours. The temporary agency that supplies a temporary
worker cannot dictate the worker's hours.
¶ 17 As one of Touchette's house supervisors, Alice Page oversees its after-hours
operations, including ensuring that it is adequately staffed to carry out its operations. As
a house supervisor, Page can assign a temporary worker to a particular department. 6 Temporary workers receive instruction, supervision, and assistance from Touchette
employees. If a temporary worker is not doing what the worker is assigned to do or if the
worker is acting unprofessionally, Page can ask the worker to leave the premises and can
tell the worker not to return. If Page has a problem with a temporary worker and no
longer wants the worker to work at Touchette, she notifies the temporary agency so the
agency will not send the worker back to Touchette.
¶ 18 Lanneka White, Touchette's emergency department director, maintains overall
operations of the emergency department. As emergency department director, White gave
the plaintiff her schedules. As emergency department director, if White sees a temporary
worker acting unprofessionally or not following orders, she can ask the worker to leave
the hospital and can inform the worker's agency that Touchette does not want the worker
back. A temporary worker, such as the plaintiff, is to follow Touchette's policies and
protocol while interacting with patients and carrying out her duties.
¶ 19 Juanita Willis, one of the plaintiff's supervisors at Touchette, wrote her up three
times in 2009 for violating Touchette's policies or protocols. In a February 4, 2009,
document entitled "Touchette Regional Hospital Nursing Anecdotal Note," the plaintiff
was written up for failing to administer a medication to one of her patients on January 29,
2009. On May 21, 2009, in another "Touchette Regional Hospital Nursing Anecdotal
Note," she was written up for working over her shift without approval of Touchette's
house supervisor or department managers. On June 3, 2009, in a third "Touchette
Regional Hospital Nursing Anecdotal Note," she was written up for failing to transcribe
the physician's orders on one of her patients on May 28, 2009, and failing to document 7 the fact that she had given the patient medication. Each of these documents concludes by
noting that her agency would be notified of this occurrence and if it continued to happen
it would result in her agency being informed that she may not return to Touchette.
¶ 20 On December 26, 2010, the plaintiff reported to work at Touchette as a registered
nurse through ReadyLink. She was on the night shift, from 6:30 p.m. to 7 a.m., and was
assigned to the emergency room. While performing her job duties that night, she slipped
on a wet floor and fell, fracturing her left knee. She reported the incident to Page,
Touchette's house supervisor that night, and completed an incident report on Touchette's
computer system. She reported the incident to ReadyLink by telephone the next day.
¶ 21 On August 1, 2014, the circuit court granted Touchette's motion for summary
judgment on the basis that the plaintiff's premises liability action was barred by the
exclusive remedy provision of the Act (820 ILCS 305/5(a) (West 2008)) because she was
Touchette's borrowed employee at the time of her injury. The plaintiff filed a timely
notice of appeal.
¶ 22 ANALYSIS
¶ 23 The plaintiff argues that the circuit court erred in granting summary judgment in
favor of Touchette because there was a genuine issue of material fact as to whether she
was Touchette's borrowed employee under the Act. We disagree.
¶ 24 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 2008). "The purpose of summary judgment is not to try a 8 question of fact, but to determine whether a genuine issue of material fact exists." Illinois
State Bar Ass'n Mutual Insurance Co. v. Law Office of Tuzzolino & Terpinas, 2015 IL
117096, ¶ 14. In determining whether a genuine issue of material fact exists, the
pleadings, depositions, admissions, and affidavits, if any, must be strictly construed
against the moving party and liberally in favor of the nonmoving party. Mashal v. City of
Chicago, 2012 IL 112341, ¶ 49. A genuine issue of material fact precluding summary
judgment exists where the material facts are disputed or where reasonable persons might
draw different inferences from the undisputed facts. Id. Although summary judgment
can aid in the expeditious disposition of a lawsuit, it is a drastic measure and, therefore,
should be allowed only where the right of the moving party is clear and free from doubt.
Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). A circuit court's order granting
summary judgment is reviewed de novo. Illinois State Bar Ass'n Mutual Insurance Co.,
2015 IL 117096, ¶ 14.
¶ 25 "The Workers' Compensation Act is designed to provide financial protection to
workers for accidental injuries arising out of and in the course of employment."
Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990). "Accordingly, the Act
imposes liability without fault upon the employer and, in return, prohibits common law
suits by employees against the employer." Id. The exclusive remedy provision of the
Act is part of the quid pro quo, pursuant to which the employer assumes a new liability
without fault but is relieved of the possibility of large damage verdicts. Id. Section 5(a)
of the Act provides, in pertinent part, that "[n]o common law or statutory right to recover
damages from the employer *** for injury or death sustained by any employee while 9 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 2008).
¶ 26 An employee in the general employment of one employer may be loaned to
another for the performance of special work and become the employee of the special or
borrowing employer while performing such special work. A.J. Johnson Paving Co. v.
Industrial Comm'n, 82 Ill. 2d 341, 346-47 (1980). Our supreme court has long
recognized the borrowed-employee doctrine as being applicable to workers'
compensation cases. Id. at 347. The borrowed-employee doctrine was specifically
incorporated into our workers' compensation statutory scheme by the inclusion of section
1(a)(4) of the Act, which provides, in pertinent part, as follows:
"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 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
10 and expenses in any hearings before the Illinois Workers' Compensation
Commission or in any action to secure such reimbursement. ***
***
An 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."
820 ILCS 305/1(a)(4) (West 2008).
¶ 27 Clearly, under the express terms of the Act, ReadyLink qualifies as a "loaning
employer" because its "business or enterprise *** 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.). However, our inquiry does not end there. See, e.g.,
Lanphier v. Gilster-Mary Lee Corp., 327 Ill. App. 3d 801, 803-04 (2002) (the statutory
definition of a "loaning employer" does not establish or define who shall be considered a
"borrowing employer" or a "loaned employee," and the two-prong analysis set forth in
A.J. Johnson Paving Co., 82 Ill. 2d at 348, is the appropriate test); Chaney v. Yetter
Manufacturing Co., 315 Ill. App. 3d 823, 828 (2000) (same); Crespo v. Weber Stephen
Products Co., 275 Ill. App. 3d 638, 641-42 (1995) (same). 11 ¶ 28 The two-prong inquiry required to determine whether a borrowed-employee
relationship existed is: (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 Co., 82 Ill. 2d at 348. Whether a borrowed-
employee relationship existed is generally a question of fact, but if the facts are
undisputed and permit but a single inference, the question is one of law. Id. at 348-49.
¶ 29 In workers' compensation cases, the primary factor considered in determining
whether a borrowed-employee relationship existed is whether the alleged borrowing
employer had the right to direct and control the manner in which the work was to be
performed. Id. In A.J. Johnson Paving Co., our supreme court found that the following
factors supported a determination that the borrowing employer had the right to control
and direct 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 borrowing employer's foreman 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. Id. at 349. The court found that the fact that the employee's skill as
an operator permitted him to exercise control over the paving machine and the technical
details of the paving operation did not preclude a finding that the borrowing employer
had the right to control the manner of the work. Id. The court also found that it was 12 irrelevant that the employee received his salary from the loaning employer, rather than
the borrowing employer. Id. Illinois courts have also considered whether the alleged
borrowing employer had the right to discharge the employee. See, e.g., Hastings v. Jefco
Equipment Co., 2013 IL App (1st) 121568, ¶ 9. Although the alleged borrowing
employer need not have the power to dismiss the employee from his general employment,
it must have the power to dismiss him from the borrowed employment. Id.
¶ 30 The second factor considered in determining whether a borrowed-employee
relationship existed is whether there was an express or implied contract of hire between
the employee and the alleged borrowing employer. A.J. Johnson Paving Co., 82 Ill. 2d at
348. "In order to establish such a contract there must be at least an implied acquiescence
by the employee in the relationship." Id. at 350. Implied consent to an employment
relationship exists "where the employee knows that the borrowing employer generally
controls or is in charge of the employee's performance." Prodanic v. Grossinger City
Autocorp, Inc., 2012 IL App (1st) 110993, ¶ 17. "Furthermore, the employee's
acceptance of the borrowing employer's direction demonstrates the employee's
acquiescence to the employment relationship." Id.
¶ 31 In A.J. Johnson Paving Co., the court found that the employee's acquiescence
could be established by the fact that he was aware that the paving job was being
performed by the borrowing employer and by the fact that he accepted the borrowing
employer's control over the work by complying with the foreman's instructions with
regard to starting, stopping, and break times, as well as instructions as to where to start
13 paving and other incidental directions as to the performance of the work. A.J. Johnson
Paving Co., 82 Ill. 2d at 350.
¶ 32 In Chaney, a case very similar to the present case, the plaintiff worked for a
temporary agency that supplied the defendant with workers during peak demand periods.
Chaney, 315 Ill. App. 3d at 825. As is common with temporary agencies, the temporary
agency handled its employees' payroll, tax withholding and reporting, and insurance; the
agency also provided workers' compensation coverage for its employees. Id. However,
when the plaintiff arrived at the defendant's facility, the defendant supervised and
directed her work activities. Id. at 829. The defendant told her to perform particular
tasks, and no one from the temporary agency was involved with or consulted regarding
any task she performed while working at the defendant's facility. Id. Although the
defendant could not discharge her from her employment at the temporary agency, it could
dismiss her from service at its own plant. Id. The appellate court affirmed summary
judgment in favor of the defendant, finding that the defendant controlled the plaintiff
while she was working at its facility. Id. at 829-30. The defendant's control was
established by the fact that it supervised her work and directed her work activities. Id. at
829. The court held that the defendant's right to dismiss the plaintiff from service at its
plant and to send her back to the temporary agency was sufficient to satisfy the discharge
element of the control test. Id. The court noted that the mere fact that the plaintiff did
not receive her wages from the borrowing employer would not defeat the finding of a
borrowed-employee relationship. Id. The court noted that this method of compensation
is so common with temporary agencies that it is of little import in the analysis of whether 14 the defendant "controlled" the plaintiff's work performance for purposes of the Act. Id.
The court also found that the plaintiff impliedly agreed to the borrowed-employee
relationship where there was no dispute that she knew she was working for the defendant
but through the temporary agency. Id. at 829-30. Ultimately, the court held that the
plaintiff was a loaned employee and the defendant a borrowing employer for purposes of
the Act; that the material facts relating to its conclusion were capable of only one
inference; and, that, because the defendant was a borrowing employer, the plaintiff's civil
action against it was barred by the exclusive remedy provision of the Act. Id. at 830.
¶ 33 Chavez v. Transload Services, L.L.C., 379 Ill. App. 3d 858 (2008), is also factually
similar to the present case. In Chavez, the plaintiff, who was employed by a temporary
agency, was working as a temporary laborer for the defendant, Transload Services,
L.L.C., pursuant to an agreement between the two entities. Id. at 859-60. When the
defendant needed additional labor, it would call the temporary agency, and the temporary
agency would send temporary workers. Id. at 860. The defendant would sign off on the
hours the temporary workers worked, and the temporary agency would pay them. Id.
The temporary agency also paid for the employees' workers' compensation insurance. Id.
The plaintiff, who was injured while performing his duties for the defendant, filed a
complaint against the defendant alleging premises liability and negligence. Id. The
defendant filed a motion to dismiss, arguing that the plaintiff's claims were barred by the
exclusive remedy provision of the Act because the plaintiff was its borrowed employee.
Id. at 860-61. The trial court granted the motion. Id. at 861. The plaintiff appealed,
arguing that the trial court erred in granting the defendant's motion to dismiss because 15 there was a question of fact as to whether he was the defendant's borrowed employee. Id.
The appellate court affirmed, holding that the defendant was a borrowing employer
entitled to the protections of the exclusive remedy provision of the Act. Id. at 864. The
court noted that the plaintiff accepted the defendant's employee handbook and received
individualized training from the defendant; that the defendant had the right to discharge
the plaintiff for any reason, set his schedule, and control his work, all of which indicate
that the defendant exercised a large degree of control over his employment; and that he
was treated the same as the defendant's employees in that he worked the same hours, took
breaks at times so designated by the defendant, and received instructions from the
defendant as to how particular work was to be performed. Id. at 863. The court also
noted that the plaintiff impliedly consented to the borrowed-employee relationship by
accepting the employment assignment with the defendant, as well as its control and
direction of his work activities. Id.
¶ 34 In the present case, construing the evidence strictly against Touchette and liberally
in favor of the plaintiff, it is clear from the undisputed material facts that a borrowed-
employee relationship existed between the plaintiff and Touchette at the time of her
injury. Touchette clearly had the right to direct and control the manner in which she
performed her work. Under the written agreement between ReadyLink and Touchette,
Touchette was responsible for scheduling, supervising, and evaluating the plaintiff; it was
also responsible for determining the proper patient treatment. In addition, Touchette had
the right to immediately terminate the plaintiff's services if, in its sole discretion, she was
found to be unsatisfactory for any reason. 16 ¶ 35 At the time of her injury, the plaintiff had worked as a temporary nurse at
Touchette for over two years. Touchette decided whether to allow her to work at its
hospital, what shift she worked, what hours she worked, and what department she worked
in. Touchette required her to work the same hours as its full-time employees.
Touchette's doctors gave her orders, and she followed those orders. She received
assistance from Touchette's employees in the performance of her duties; she assisted
Touchette's employees in the performance of their duties; and she was supervised by
Touchette's employees. Touchette provided her with the same equipment and supplies it
provided for its full-time employees. She was required to follow Touchette's policies and
protocol while performing her duties, and she was written up by her supervisors at
Touchette when she failed to do so.
¶ 36 In contrast, no ReadyLink supervisors were present when the plaintiff performed
her work at Touchette; nor did ReadyLink exercise any control over how she performed
her work. She had never even met anyone from ReadyLink in person. Her only contact
with ReadyLink was by telephone.
¶ 37 Although ReadyLink paid the plaintiff, handled her unemployment insurance,
social security, and tax deductions, and carried malpractice, general liability, and
workers' compensation insurance for her, it is undisputed that Touchette supplied
ReadyLink with the number of hours she worked each day, and ReadyLink billed
Touchette for those hours at an agreed-upon rate, which included reimbursement for
those payroll expenses plus a profit. These facts suggest that ReadyLink was merely a
conduit through which the plaintiff was paid, supporting the inference that she was a 17 borrowed employee under Touchette's control. See American Stevedores Co. v.
Industrial Comm'n, 408 Ill. 449, 455-56 (1951) (holding that the case came within the
borrowed-employee doctrine as a matter of law where Frigidaire procured temporary
workers through Stevedores, an agency, and Stevedores merely became the selecting
agency to pick the workers and the conduit through which they were paid); see also A.J.
Johnson Paving Co., 82 Ill. 2d at 349 (the court did not "deem relevant" the fact that the
plaintiff was paid by the loaning employer rather than the borrowing employer and stated
that "[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").
¶ 38 It is also clear from the undisputed material facts in the present case that, at a
minimum, the plaintiff impliedly consented to the borrowed-employee relationship by
accepting Touchette's temporary work assignments and accepting Touchette's control and
direction as to her work activities. At the time of her injury, she had been accepting
temporary work assignments at Touchette for over two years. In addition, she was given,
and signed, Touchette's "Memo of Understanding," which was on Touchette's letterhead,
acknowledging that she had been given other information and materials regarding her
work at Touchette. She was also given, and signed, Touchette's job description for a
registered nurse, which was also on its letterhead. That job description included a
summary of the job, the essential functions and duties of the job, the qualifications for the
job, the preferred skills and abilities for the job, the physical demands of the job, and the
duties and responsibilities of the job. By signing the job description, she certified that
she was "able to perform the essential duties and physical/mental functions" of the job 18 and that she possessed "the required skills, knowledge, training, education and
experience" required for the job. She also followed Touchette's doctors' orders and
complied with Touchette's supervisors' instructions with regard to starting, stopping, and
break times, as well as other incidental directions as to the performance of her work.
Finally, she followed Touchette's policies and protocol in performing her duties and was
written up by her supervisors at Touchette when she failed to do so.
¶ 39 Because the undisputed material facts demonstrate that Touchette directed and
controlled the plaintiff's work and that she consented to the borrowed-employee
relationship with Touchette, there is no genuine issue of material fact as to whether
Touchette was a borrowing employer. The circuit court, therefore, properly determined,
as a matter of law, that the plaintiff was Touchette's borrowed employee at the time of her
injury and that her common law premises liability action against Touchette was,
therefore, barred by the exclusive remedy provision of the Act. Accordingly, the circuit
court properly granted summary judgment in favor of Touchette.
¶ 40 The plaintiff also argues that the agreement between Touchette and ReadyLink,
whereby ReadyLink was responsible for workers' compensation claims and agreed to
hold Touchette harmless from any such claims, relieved Touchette from liability under
the Act and, in turn, the protection of the Act's exclusive remedy provision. We disagree.
¶ 41 The plaintiffs in Chaney made the same argument, and the appellate court rejected
that argument, noting that to adopt the plaintiffs' argument would require it to ignore the
Act's explicit provisions making borrowing and loaning employers jointly and severally
liable to the employee. Chaney, 315 Ill. App. 3d at 830. The court noted that the Act 19 establishes a system to help ensure that the employee will recover benefits in a borrowed-
employee scenario. Id. If the borrowing employer fails to pay the employee's claim, the
loaning employer must pay the employee but has the right to seek reimbursement from
the borrowing employer. Id. Despite the indemnification agreement between the
borrowing employer and the loaning employer waiving the loaning employer's right to
indemnification, the borrowing employer was still primarily liable for the borrowed
employee's injuries under the Act. Id.
¶ 42 Similarly, in the present case, despite the indemnification agreement between
Touchette and ReadyLink waiving ReadyLink's right to indemnification, Touchette was
still primarily liable for the plaintiff's injuries under the Act. We, therefore, reject the
plaintiff's argument that Touchette should be subject to common law tort liability in this
case because, pursuant to its agreement with ReadyLink, it was not liable under the Act.
¶ 43 Finally, the plaintiff argues that Touchette is collaterally estopped from claiming
that it was her employer by the workers' compensation award finding that ReadyLink was
her employer. Touchette argues that the plaintiff waived the collateral estoppel issue
because she failed to raise it in the trial court. We agree. The plaintiff did not raise the
collateral estoppel issue in the trial court and cannot raise it for the first time on appeal.
See Parks v. Kownacki, 193 Ill. 2d 164, 180 (2000) (issues not raised in the trial court
cannot be argued for the first time on appeal).
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we affirm the order of the circuit court of St. Clair
County granting summary judgment in favor of Touchette. 20 ¶ 46 Affirmed.
21 2015 IL App (5th) 140412
NO. 5-14-0412
IN THE
FIFTH DISTRICT ________________________________________________________________________
SHELLEY REICHLING, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 12-L-588 ) TOUCHETTE REGIONAL HOSPITAL, INC., ) Honorable ) Vincent J. Lopinot, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: July 16, 2015 ________________________________________________________________________
Justices: Honorable Bruce D. Stewart, J.
Honorable Judy L. Cates, P.J., and Honorable Thomas M. Welch, J., Concur ________________________________________________________________________
Attorneys Roy C. Dripps, Michael T. Blotevogel, Armbruster, Dripps, for Winterscheidt & Blotevogel, LLC, 219 Piasa Street, Alton, IL Appellant 62002 ________________________________________________________________________
Attorneys Charles J. Swartwout, David B. Schneidewind, Boyle Brasher, for LLC, 5000 West Main Street, P.O. Box 23560, Belleville, IL Appellee 62223 ________________________________________________________________________