Saldana v. American Mutual Corp.

422 N.E.2d 860, 97 Ill. App. 3d 334, 52 Ill. Dec. 651, 1981 Ill. App. LEXIS 2807
CourtAppellate Court of Illinois
DecidedMay 27, 1981
Docket79-2117
StatusPublished
Cited by24 cases

This text of 422 N.E.2d 860 (Saldana v. American Mutual Corp.) 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
Saldana v. American Mutual Corp., 422 N.E.2d 860, 97 Ill. App. 3d 334, 52 Ill. Dec. 651, 1981 Ill. App. LEXIS 2807 (Ill. Ct. App. 1981).

Opinion

Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Pedro Saldana, brought this action on his own behalf and on behalf of other employees who, like plaintiff, worked for employers that were insured by defendant, American Mutual Corporation, and had received workmen’s compensation awards but were not paid interest , on those awards pursuant to section 19(n) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19 (n)). Plaintiff sought a determination that class action status was appropriate (Ill. Rev. Stat. 1977, ch. 110, par. 57.2), and further sought an accounting by defendant to all class members for interest due on their workmen’s compensation awards from the dates that the arbitrators entered the awards to the dates when the awards were tendered. The trial court struck the class action allegations and dismissed the remainder of the complaint. We reverse and remand.

On October 22, 1975, an arbitrator for the Industrial Commission awarded plaintiff $7,265.86 as compensation for injuries he sustained arising out of and in the course of his employment by Flexi-Mat Corporation on March 14, 1973. The award was subsequently affirmed by the Industrial Commission. On writ of certiorari, the circuit court confirmed the Commission’s decision. Defendant, Flexi-Mat’s insurer, tendered payment of the award to plaintiff on September 24, 1977.

Plaintiff filed the present action on August 18,1978. In his complaint, he alleged that defendant had not paid accrued interest on his workmen’s compensation award, and that he was entitled to such interest from the date that the arbitrator entered the award to the date that payment was tendered, as required by section 19(n) of the Act. Plaintiff further alleged that defendant owed interest on workmen’s compensation awards it had made to numerous other employees after July 1, 1975, the date that section 19 (n) became effective. Additional allegations set forth the basis for his contention that this suit was appropriate for prosecution as a class action because the prerequisites established by section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2) had been met.

Defendant filed a motion to strike the class action allegations and to dismiss the complaint. Defendant argued that the complaint failed to state a claim upon which class action relief could be granted because the allegations were insufficient to establish the prerequisites for maintaining a class action. Also, defendant contended that plaintiff failed to state an individual cause of action because section 19(n) was inapplicable to plaintiff’s award since his injuries occurred prior to the enactment of that provision. Defendant also claimed that plaintiff failed to exhaust his administrative remedies and never requested the payment of any interest. The trial court granted defendant’s motion and made a finding that plaintiff failed to exhaust his administrative remedies. We do not agree with the ruling.

In considering a motion to strike or dismiss, the complaint must be considered as a whole. Allegations should not be stricken nor the complaint dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to relief. (See Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 578, 325 N.E.2d 799, 803.) Based on these considerations, we conclude that plaintiff’s allegations regarding a class action should not have been stricken. The complaint, when read as a whole, contains sufficient allegations to withstand the motion to strike.

In order to maintain a class action, the court must find the following prerequisites: (1) the class is so numerous that joinder of all members would be impracticable; (2) there are questions of fact or law common to the class which predominate over any questions affecting only individual members; (3) the representative party will fairly and adequately protect the interests of the class; and (4) a class action is an appropriate method for the fair and efficient adjudication of the controversy. Ill. Rev. Stat. 1977, ch. 110, par. 57.2.

Regarding the first requirement, plaintiff alleged that there were numerous other employees of employers insured by defendant who received workmen’s compensation awards subsequent to the effective date of section 19(n), and who, like plaintiff, did not receive the accrued interest to which they were entitled under that section of the Act. Defendant challenged this allegation on the basis that it did not sufficiently identify prospective members of the class. We disagree with defendant.

The complaint readily informed defendant of the potential members of the class. Plaintiff was not required to name the specific individuals who were possible members of the class. Moreover, defendant cannot complain that this information was not available to it, since the information was more within the province of defendant’s knowledge than plaintiff’s. Also, since the class action will involve claims made over more than a three-year period, 1 it appears that joinder would be impracticable. See Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337, 371 N.E.2d 634, 642-43.

The remaining prerequisites for maintaining a class action are also sufficiently alleged in the complaint. The common question which predominates over any other questions affecting only individual members is whether employees of employers insured by defendant are entitled to recover interest under section 19(n) on any workmen’s compensation award made after the effective date of that provision. The fact that the class members’ claims for damages may be in varying amounts which have to be determined separately does not necessarily mean that the common question does not predominate. (See Fiorito v. Jones (1968), 39 Ill. 2d 531, 544, 236 N.E.2d 698, 706; Midway Tobacco Co. v. Mahin (1976), 42 Ill. App. 3d 797, 804-05, 356 N.E.2d 909, 915-16.) Next, the allegations made by plaintiff in regard to his individual claim show that plaintiff could fairly and adequately represent the interests of the other class members. Plaintiff’s interest is the same as that of other class members. It does not appear that collusion was involved in bringing this action, or that this is a “friendly” action. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 338-39, 371 N.E.2d 634, 643.) Finally, in regard to the fourth prerequisite, plaintiff alleged that a class action would be a fair and efficient method of disposing of the predominating issue here because it would avoid a multiplicity of suits and possible inconsistent results. If this allegation is taken as true, it is sufficient to meet the fourth prerequisite for bringing a class action.

Further, in considering defendant’s motion to strike the class action, we must apply section 42(2) of the Civil Practice Act.

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Bluebook (online)
422 N.E.2d 860, 97 Ill. App. 3d 334, 52 Ill. Dec. 651, 1981 Ill. App. LEXIS 2807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saldana-v-american-mutual-corp-illappct-1981.