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Garcia v. Recycling Serv.

Appellate Court of Illinois, First District, Third Division

June 26, 2013, Decided

No. 1-12-1902



Held: The circuit court did not err in granting summary judgment in favor of defendant where the Illinois Workers' Compensation Act prohibits common law actions premised on negligence or wilful and wanton conduct against borrowing employers.

 [*P1]  Plaintiff-appellant Moises Flores Garcia, individually and as next best friend and brother and special administrator of the estate of Julio Flores Garcia, filed a wrongful death and survival action against defendants-appellees Recycling Service, Inc. (RSI) and Leonel Patino, based on negligence and/or wilful and wanton conduct. The complaint alleged decedent was killed while cleaning a paper bailer at a plant operated by RSI, where he worked. Defendant moved for summary judgment on the basis that the Illinois Workers' Compensation Act (820 ILCS 305/1 (West 2010)) (the Act) provides an exclusive remedy for plaintiff's injuries and bars plaintiff's common law claims, which was granted. On appeal, plaintiff contends that the  [**2] circuit court erred in granting summary judgment because: (1) defendants' actions were wilful and wanton and so fall outside the scope of the exclusivity provisions of the Act; (2) defendant RSI was not a borrowing employer within the meaning of the Act and was thus not protected by the Act's exclusive remedy provisions; and (3) defendant RSI agreed to indemnify decedent's employer for accidents arising out of defendant's failure to comply with safety standards. For the following reasons, we affirm.


 [*P3]  Plaintiff's decedent was killed on March 20, 2009, when he was inside a paper baler at RSI that was activated by defendant Patino. At the time of his death, plaintiff's decedent was working as a paper sorter at RSI, where he had been placed nearly three years earlier by the temporary staffing agency Remedial Environmental Manpower (REM). The relationship between REM and RSI was governed by a Client Services Agreement (Agreement). That Agreement, dated January 1, 2009, described that REM would provide, or "loan," temporary employees to perform work at RSI, the "borrowing employer." The temporary employees were paid by REM, but the Agreement specified that RSI had the exclusive  [**3] right to direct and control the manner in which the temporary employees performed their work. Michael Finn, president of RSI, testified that RSI would in fact interview the workers REM provided before "hiring" them. Upon their "hire," they would undergo the same orientation and training as an employee hired directly by RSI. The dismissal of an REM employee from RSI's plant was at RSI's sole discretion, though REM bore the responsibility of informing that employee.

 [*P4]  On the date of his hire, decedent signed a form acknowledging that he was an employee of REM, although he would report to a client and perform work at a client's business. The form also made him aware that he would receive instructions from the client that he would be required to follow. All REM employees who were placed at RSI agreed that RSI did in fact instruct them on their daily tasks and supervise their performance. They further testified that RSI provided their training and the tools they needed to work.

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2013 IL App (1st) 121902-U *; 2013 Ill. App. Unpub. LEXIS 1380 **; 2013 WL 3325067

MOISES FLORES GARCIA, Individually and as Next Best Friend and Brother and Special Administrator of the ESTATE OF JULIO FLORES GARCIA, deceased, Plaintiff-Appellant v. RECYCLING SERVICE, INC., an Illinois Corporation d/b/a RECYCLING SERVICES and/or d/b/a FIBER OPTIONS, INC., and LEONEL PATINO, Defendants-Appellees.


Subsequent History: Appeal denied by Garcia v. Recycling Serv., Inc., 996 N.E.2d 12, 2013 Ill. LEXIS 921 (Ill., Sept. 25, 2013)

Prior History:  [**1] Appeal from the Circuit Court of Cook County. No. 10 L 7305. Honorable Kathy Flanagan, Judge Presiding.

Disposition: Affirmed.


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