source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    GULF INTERSTATE GEOPHYSICAL/GULF INTERSTATE PIPING, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Davis, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—89—0396WC
    Opinion filed April 27, 1990.
    Rehearing denied July 9, 1990.
    Stevenson, Rusin & Friedman, Ltd., of Chicago (Douglas F. Stevenson, of counsel), for appellant.

      Nancy K. Hall, of Nancy K. Hall, Ltd., of Mt. Vernon, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

On January 31, 1982, claimant, John Davis, was working in Indiana for respondent, Gulf Interstate Piping and Construction Company, pursuant to an employment contract made in Illinois. While working on a pipeline in Washington, Indiana, claimant twisted a knee and sustained cartilage damage, which necessitated surgery. Pursuant to the Indiana Workmen’s Compensation Act of 1929 (Ind. Code §22—3—2—1 et seq. (19_)), claimant was paid 44 weeks of temporary total disability and all of his medical bills. By an agreement dated February 2, 1984, which was approved by the Industrial Board of Indiana on April 24, 1984, claimant and respondent entered into a settlement agreement which fixed the permanent partial disability lump-sum settlement figure at $2,670. This figure represented 35.6 weeks or a compromise of 15% and 20% of the leg, at the Indiana rate of $75 per week. The exact wording of the agreement was as follows:

“This is the final PPI settlement agreement permanent disability settlement [sic]; based on a promise [sic] of 15% and 20% of the extremity, equals 35.6 weeks at $75 per week for a total settlement of $2,670.00.”

In connection therewith, claimant executed a waiver, wherein he accepted the impairment rating of between 15% and 20% of the leg and waived his right to an impairment rating by any other physician.

On or about March 1, 1984, respondent’s insurance carrier issued a check to claimant for $2,670. In a box of the payment document entitled “PAYMENT OF CLAIM OR ACCOUNT AS FOLLOWS,” the following information was typed in:

“full and final PPI rating approved by Ind Board, clmt and attys; any and all[.]”

Claimant endorsed the check without reservation.

On November 26, 1984, claimant filed an application for adjustment of claim, pursuant to the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). He was seeking a supplemental award to that which he had received in Indiana. The application sought compensation for the same accident and same knee damage that had been the basis for the Indiana workers’ compensation claim and settlement.

Before an arbitrator, respondent sought to dismiss claimant’s application for want of jurisdiction, arguing that the Indiana settlement precluded claimant from pursuing a worker’s compensation claim in Illinois. The arbitrator held that the Indiana settlement “and the acceptance of payment of that settlement ‘in full’ constitutes an ‘accord and satisfaction’ and an ‘estoppel’ requiring the dismissal of the application for adjust [sic] of claim filed here in Illinois.”

In reversing the arbitrator's decision, the Industrial Commission (Commission) found that neither the settlement agreement, the waiver, nor the endorsed check contained any statement that the agreement was in settlement of claims in jurisdictions other than Indiana, or a waiver of rights in other jurisdictions. It further found that an Indiana settlement agreement which neither states that it is made in settlement of claims in all jurisdictions nor waives the right to pursue remedies in other jurisdictions did not prevent claimant from pursuing his claim in Illinois. The circuit court of Franklin County confirmed the Commission’s decision, and this appeal followed.

Respondent initially maintains that Illinois jurisdiction is barred by res judicata under the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, §1), which reads:

“Full Faith and Credit shall be given in each State to the Public Acts, Records, and Judicial Proceedings of every other state. And the Congress may by general laws prescribe the manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Citing Magnolia Petroleum Co. v. Hunt (1943), 320 U.S. 430, 88 L. Ed. 149, 64 S. Ct. 208, respondent contends that a final resolution of a worker’s compensation claim is res judicata, and a worker’s compensation claim for the same injury cannot be asserted again in another State.

Three United States Supreme Court cases deal specifically with this issue, namely, Thomas v. Washington Gas Light Co. (1980), 448 U.S. 261, 65 L. Ed. 2d 757, 100 S. Ct. 2647, Industrial Comm’n v. McCartin (1947), 330 U.S. 622, 91 L. Ed. 1140, 67 S. Ct. 886, and Magnolia Petroleum Co. v. Hunt (1943), 320 U.S. 430, 88 L. Ed. 149, 64 S. Ct. 208.

In Magnolia Petroleum, an oil field worker was employed in Louisiana and, in the course of his employment, was sent by his employer to work in Texas, where he was injured on the job. He sought and received a workmen’s compensation award in Texas, and subsequently, he filed a workmen’s compensation claim in Louisiana. The Court found that the Texas compensation award was made explicitly in lieu of any other recovery for the employee’s injury, preventing any recovery under the laws of another State. In a 5 to 4 decision,,the Magnolia Court held that the full faith and credit clause (U.S. Const., art. IV, §1) precluded an employee, who had received a workmen’s compensation award for injuries received in one State, from seeking supplementary compensation in another State where he had been hired.

In McCartin, a bricklayer entered into an employment contract in Illinois and worked in Wisconsin, where he suffered a job-related eye injury and filed a workmen’s compensation claim with the Industrial Commission of Wisconsin. Subsequently, he filed a claim with the Illinois Industrial Commission. The worker settled his Illinois claim. The settlement agreement stated, in part, “This settlement does not affect any rights that applicant may have under the Workmen’s Compensation Act of the State of Wisconsin.” (McCartin, 330 U.S. at 629, 91 L. Ed. at 1144, 67 S. Ct. at 889.) This clause was put in the agreement at the behest of claimant, who had been informed by Wisconsin’s Industrial Commission that he was eligible for a supplemental award in Wisconsin after recovering in Illinois. The Wisconsin Industrial Commission ordered a supplemental award to the claimant.

The McCartin Court found nothing in the relevant Illinois statute that was designed to preclude any recovery by proceedings brought in another State for injuries arising under Illinois employment.

The Court then stated:

“And in light of the rule that workmen’s compensation laws are to be liberally construed in furtherance of the purpose for which they were enacted, [citation], we should not readily interpret such a statute so as to cut off an employee’s right to sue under other legislation passed for his benefit. Only some unmistakable language by a state legislature or judiciary would warrant our accepting such a construction. Especially is this true where the rights affected are those arising under legislation of another state and where the full faith and credit provision of the United States Constitution is brought into play.” (Emphasis added.) 330 U.S. at 628, 91 L. Ed. at 1144, 67 S. Ct. at 889.

The Court then found another basis for its decision, namely, that the language of the settlement agreement noted above stated that the agreement did not affect any rights claimant may have under the Wisconsin Compensation Act.

The Court further stated:

“But when the reservation in this award is read against the background of the Illinois Workmen’s Compensation Act, it becomes clear that the reservation spells out what we believe to be implicit in that Act — namely, that an Illinois workmen’s compensation award of the type here involved does not foreclose an additional award under the laws of another state. And in the setting of this case, that fact is of decisive significance.” 330 U.S. at 630, 91 L. Ed. at 1145, 67 S. Ct. at 890.

In a unanimous decision, the Court concluded that because the Illinois award was final solely as to rights under Illinois law, Wisconsin could under the full faith and credit clause grant a supplemental award to claimant under its own laws.

In Thomas v. Washington Gas Light Co. (1980), 488 U.S. 261, 65 L. Ed. 2d 757, 100 S. Ct. 2647, the claimant was a resident of the District of Columbia, who was hired in same, but suffered a job-related injury in Virginia. Claimant received compensation under Virginia Workmen’s Compensation Act. On appeal, the employer argued that the Virginia award excluded all other recovery for the injury and that the full faith and credit clause precluded a supplemental award for said injury under the District of Columbia Workmen’s Compensation Act.

The Thomas Court, a plurality of four justices, reexamined the full faith and credit clause as it related to supplemental workers’ compensation awards. The Court found that the rule in McCartin, which authorized a State to draft or construe its workers’ compensation statute so as to preclude a compensation award in another State, represented an unwarranted delegation to the States of the Supreme Court’s responsibility to be the final arbitrator of full faith and credit decisions. The “unmistakable language” test of McCartin, thus, was an unacceptable basis upon which to distinguish McCartin from Magnolia.

The Thomas plurality noted both that State cases overwhelmingly followed McCartin, applying the unmistakable language test to permit supplemental awards, and that the States had placed little reliance upon the Magnolia case.

Stare decisis concerns aside, the Thomas plurality sought to freshly examine the full faith and credit clause as it applied to supplemental workers’ compensation awards. First, it found that the employer and its insurer had to measure their potential liability under the laws of either the District of Columbia or Virginia, as claimant could seek compensation in either State. It followed then that a State’s interest in limiting the potential liability of businesses within the State was not controlling. Moreover, the State’s interest in providing adequate compensation to injured workers would be served by successive awards.

The Court then found that the Virginia Industrial Commission, while responsible for establishing a claimant’s rights under Virginia laws, could not determine his rights regarding compensation in the District of Columbia. Full faith and credit must, of course, be given to the Virginia award as far as it went, but said determination could not preclude claimant’s rights to a supplemental award in the District of Columbia. There could be no objection to a fresh adjudication of those rights in the District of Columbia.

Further, whether or not claimant initially sought compensation from the less generous jurisdiction, the vindication of the State’s interest in placing a ceiling on employer’s liability would inevitably impinge upon the substantial interests of the second jurisdiction in the welfare of the injured workers.

In conclusion, the Thomas plurality held that a State has no legitimate interest in precluding another State from granting a supplemental compensation award, when the second State would have had the power to apply its workers’ compensation law in the first place.

Three justices concurred with the plurality’s decision, concluding that the Virginia Workmen’s Compensation Act lacks the unmistakable language which McCartin requires to prevent a supplemental award. Two justices dissented, arguing that Magnolia should be followed to determine the issue.

In effect, Thomas did not overrule either Magnolia or McCartin, the result of which is that we are still left with the McCartin’s “unmistakable language” rule.

The respondent points to the following language found in the Indiana Workers’ Compensation Act (Ind. Code §22—3—2—1 et seq. (19_)), as evidence of Indiana’s intention of precluding supplemental awards.

“If *** the employer and the injured employee *** reach an agreement in regard to compensation under IC 22—3—2 through IC 22—3—6, a memorandum of the agreement in the form prescribed by the [workers’ compensation] board shall be filed with the board ***. If approved by the board, thereupon the memorandum shall for all purposes be enforceable by court decree as specified in section 9 of this chapter.” (Ind. Code §22-3-4-4 (19_).)

Section 22—3—2—15 reads in relevant part:

“No contract, agreement, written or implied, no rule, *** or other device shall, in any manner, operate to relieve any employer in whole or in part of any obligation created by [IC 22—3—]2 through [IC 22—3—]6 ***. (a) However, nothing in [IC 22 — 3—]2 through [IC 22 — 3—]6 *** shall be construed as preventing the parties to claims *** under chapters [IC 22—3—]2 through [IC 22—3—]6 *** from entering into voluntary agreements in settlement thereof, but no agreement *** of settlement or compromise *** shall *** be valid until approved by a member of the board.” Ind. Code §22—3—2—15 (19_).

We find nothing in said statutes resembling the “unmistakable language” required by McCartin. Nothing in the Indiana Workmen’s Compensation Act states matter of factly that the agreement of settlement or compromise reached under Indiana law precludes a claimant’s supplemental award in another State wherein the injured worker has a legitimate claim. Without such language, the full faith and credit clause does not bar a supplemental recovery under Illinois law.

Moreover, the actual language of the settlement agreement and the check for the lump-sum payment gave no indication that the parties intended the settlement to preclude claimant from applying for compensation in any other jurisdiction. On its face, the Indiana settlement merely forecloses claimant from seeking further recovery under Indiana law.

Contrary to respondent’s assertion, we do not find Long-Airdox Co. v. Industrial Comm’n (1984), 128 Ill. App. 3d 334, to control here. In Long-Airdox Co., claimant, a Missouri resident, was hired by respondent, a West Virginia company. On his first day of work, claimant was seriously injured on a job-related trip in Illinois. He signed an application for compensation of benefits under West Virginia law and received medical expenses and temporary total disability benefits. Claimant later filed application for adjustment of claim under Illinois law. At the time of the filing of the Illinois claim, the status of the West Virginia claim was unclear. No final disposition of the West Virginia claim was reflected in the Long-Airdox Co. record. Consequently, it did not reach the issue of whether the claimant’s Illinois application for compensation was specifically barred by res judicata.

Next, respondent argues that, under the principal of accord and satisfaction, the Indiana settlement, agreed to by the parties, constitutes full and final payment in Indiana or any other State for claimant’s injuries.

The cases cited by respondent, Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, and Koretz v. All American Life & Casualty Co. (1968), 102 Ill. App. 2d 197, are not on point; both deal with contract disputes, not workers’ compensation claims.

The Indiana settlement will be credited against any supplemental award that claimant, who is avowedly not seeking double recovery, will receive in Illinois. Indeed, the Thomas Court stated, “A supplemental award gives full effect to the facts determined by the first award and also allows full credit for payments pursuant to the earlier award. There is neither inconsistency nor double recovery.” Thomas, 448 U.S. at 281, 65 L. Ed. 2d at 773, 100 S. Ct. at 2661.

Further, accord and satisfaction applies to agreements which constitute full and final payment as to all jurisdictions. In the instant case, neither the Indiana settlement agreement nor the endorsed check, both cited above, contains any indication that the settlement was made in regard to all claims in all States. As the court below determined, the language on the check is subject to interpretation as to whether or not the parties intended it to be full and final for all claims in Indiana or full and final for all claims in any other States. Thus, the Commission did not err in finding that claimant could pursue a supplemental award for his injury.

Accordingly, the judgment of the circuit court confirming the Commission’s decision is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE CHAPMAN

text:
    GOLDEN RULE INSURANCE COMPANY, Plaintiff-Appellant, v. JOHN W. MICHELY, Defendant-Appellee.
    Fifth District
    No. 5—89—0332
    Opinion filed May 9, 1990.
    Rehearing denied July 9, 1990.

      Guy E. McGaughey, Jr., of McGaughey & McGaughey, Ltd., of Lawrenceville, for appellant.
    Terry C. Kaid, of Woodcock, Kline & Kaid, P.C., of Mt. Carmel, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The trial court in this cause of action dismissed Golden Rule Insurance Company’s complaint for declaratory judgment against John Michely, finding that the court did not have personal jurisdiction over the defendant pursuant to the Illinois long-arm statute. (Ill. Rev. Stat. 1987, ch. 110, par. 2—209.) Golden Rule Insurance Company appeals from the court’s order of dismissal.

Golden Rule Insurance Company (Golden Rule) is an Illinois corporation, with its home office and principal place of business at Lawrenceville, Illinois. John Michely is a resident of St. Charlés, Missouri, and has never resided in Illinois. On September 10, 1984, Michely applied for insurance with Golden Rule at the office of E.E Mazucca & Associates, Inc., located in Missouri. Mary Mazucca, who signed the policy application on behalf of Mazucca & Associates, mailed the application, along with an initial premium check, to Golden Rule’s home office in Lawrenceville. A policy was issued September 13, 1984, and mailed from Golden Rule’s home office to Michely.

Michely subsequently incurred medical expenses and submitted a claim to Golden Rule. Golden Rule determined that the expenses incurred were excluded from coverage by the policy and denied the claim. Golden Rule filed a complaint for declaratory judgment of non-liability in the circuit court of Lawrence County, Illinois. Service of the complaint on Michely was personally made by the St. Charles County, Missouri, sheriff.

Michely filed a special appearance for the purpose of contesting personal jurisdiction pursuant to section 2—301 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—301). As grounds for contesting personal jurisdiction, the special appearance represented that Michely is a resident of Missouri, and at no time has he been a resident of Illinois; that Michely purchased the insurance policy from Mazucca & Associates, a broker of Golden Rule, at its office in Missouri; that all premium payments on the policy were made to Golden Rule through its Indianapolis office; that upon information and belief Golden Rule is licensed and authorized to do business in Missouri; and that Michely has at no time contacted any individual or organization in Illinois with regard to the policy. The special appearance further alleged that Michely has had no contacts with Illinois sufficient for Illinois courts to exercise personal jurisdiction over him. Michely further stated in an affidavit attached to the special appearance that he has never made a telephone call to, or received a telephone call from, Golden Rule in Lawrenceville, Illinois.

Darrell Richey, vice-president.of Golden Rule, filed an affidavit in opposition to the defendant’s motion to dismiss for lack of personal jurisdiction. In the affidavit he states that Golden Rule’s home office and principal place of business are in Lawrenceville, Illinois, and that Golden Rule has a companion administrative office in Indianapolis, Indiana. He also states in his affidavit that pursuant to the independent broker’s contract between Golden Rule and Mary Mazucca, Mazueca was an independent contractor and was the agent of Michely and not Golden Rule.

The trial court heard arguments on defendant’s special appearance, and on November 23, 1988, in a docket sheet entry, granted Michely’s motion to dismiss for lack of personal jurisdiction. A written judgment order was filed December 7, 1988, including the court’s findings and basis therefore, as provided in the court’s docket sheet entry of November 23. In the docket sheet entry finding that Golden Rule failed to meet its burden of establishing jurisdiction, the court made specific reference to the plaintiff’s failure to demonstrate that Mary Mazucca was Michely’s agent. The court noted, however, that Mazucca’s agency status “is not and would not be determinative of the jurisdictional issue, since even if she’s determined to be defendant’s agent, neither she nor defendant had sufficient contacts with the State of Illinois to confer personal jurisdiction of the Illinois courts over the person of defendant pursuant to the long arm statute.” The trial court also based its finding that Illinois lacked personal jurisdiction over defendant on section 113 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 735). The court denied Golden Rule’s post-trial motion to vacate the court’s order, and this appeal followed. We choose not to address the issue of whether the trial court erroneously applied section 113 in making its decision. A reviewing court will not consider questions which are not essential to the determination of the case before it. Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 936, 445 N.E.2d 901, 905.

When jurisdiction is alleged under the long-arm statute, the first step is to determine if jurisdiction is proper under that statute. Only if jurisdiction is proper under the statute is the second step, determining if jurisdiction is proper under the due process clause, reached. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 311, 489 N.E.2d 1360, 1364.) The pertinent provisions of section 2—209 of the Code of Civil Procedure provide:

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State;
* * *
(d) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-209.)

Golden Rule argues that jurisdiction is conferred over Michely because Michely transacted business in Illinois via his agent Mary Mazucca. Golden Rule points out that it was Michely who sought out Mazucca & Associates, which was a general insurance broker selling all kinds of insurance. Golden Rule refers in particular to the Mazucca-Golden Rule “Agent’s or Broker’s Contract” (the Contract) which, it argues, clearly specifies that Mary Mazucca is an independent contractor and not an employee of Golden Rule. Because a broker by definition is an agent of the insured, and an agent by definition is an agent of the insurer (Ross v. Thomas (1977), 45 Ill. App. 3d 705, 708, 360 N.E.2d 126, 128), plaintiff makes particular reference to the Contract where it is signed “Mary M. Mazucca, Broker.” Plaintiff reasons that this factor shows that Mary Mazucca was a broker in her relationship with Golden Rule.

The contract is not controlling with respect to the status of Mazucca in this case. Whether she was a broker or an agent is determined not by what she is called, but by what she does. (Moone v. Commercial Casualty Insurance Co. (1953), 350 Ill. App. 328, 335, 112 N.E.2d 626, 628.) To determine whether a person is acting as a broker or as an agent, we must ask: who first set the person in motion; who controls her actions; who is to pay her; and whose interest is she there to protect. (Moone, 350 Ill. App. at 335, 112 N.E.2d at 629.) Other factors to consider in the agency/broker analysis include: an agent’s fixed and permanent relationship to the company she represents; conduct inconsistent with an agency relationship with a client; whether the client first approached the person; and whether the person dealt directly with the insurance company. See Northtown Warehouse & Transportation Co. v. Transamerica Insurance Co. (1987), 155 Ill. App. 3d 10, 15, 507 N.E.2d 189, 192.

Our analysis of the factors in the case at bar does not show that Mazucca was Michely’s agent. The Contract between Mazucca and Golden Rule evidences the relationship between them. That contract provided in pertinent part:

“You have the authority *** to solicit applications for the insurance products of the Company ***.
* * *
You shall actively solicit applications for the Company’s insurance products for approval or disapproval by the Company, collecting initial premiums in exchange for the official receipts furnished by the Company.
* * *
*** [Y]ou will be paid commissions based on the amount of premiums received in cash by the Company on policies and contracts issued from applications for insurance solicited by you or your Sub-Agents or Sub-Brokers, provided your name appears on the application as Agent or Broker.”

It is unclear that Mazucca had a fixed and permanent relationship with Golden Rule, but it is clear that in obtaining Michely’s insurance business, she was acting within the authorization of her Contract with Golden Rule. Although it is undisputed that Michely approached Mazucca to purchase insurance, it was Mazucca who recommended to Michely that he purchase the Golden Rule insurance policy. In an affidavit submitted to the court by Michely, he states that all of his contacts and activities with regard to the insurance policy were transacted through Mazucca’s office in St. Louis, Missouri. The fact that Mazucca dealt directly with Golden Rule is acknowledged in the affidavit submitted by Darrell Richey, vice-president and general counsel of Golden Rule, wherein he states, “After signing the application, said application was mailed by the Independant [sic] Broker to Golden Rule along with the premium which was received in Lawrence County, Illinois at the home office of Golden Rule Insurance Company.”

In considering the factor of who controls Mazucca’s actions, it is noteworthy that Mazucca’s Contract with Golden Rule provides that she is “expected to generate new business on a regular basis for the company.” Although the Contract gave Mazucca the freedom to exercise her own judgment in soliciting applications, she was bound under the Contract to observe the rules and regulations of the company. It has not been shown that Mazucca conducted herself other than in the manner provided in the Agent’s or Broker’s Contract. Furthermore, the Contract provides that Golden Rule shall pay Mazucca a commission for policies which are issued from applications for insurance solicited by Mazucca. All of the evidence supports the court’s finding that Golden Rule failed to demonstrate that Mazucca was Michely’s agent. We hold that the trial court did not abuse its discretion in finding that Golden Rule failed to meet its burden of establishing that Mary Mazucca was the defendant’s agent.

In light of our finding that the evidence was insufficient to establish Mazucca as the agent of Michely, our inquiry turns to the question of whether Michely personally transacted business in Illinois so as to confer jurisdiction of the Illinois courts over him.

Plaintiff bears the burden of proof in establishing jurisdiction i defendant. (Bobka v. Cook County Hospital (1983), 117 Ill. App. 359, 360, 453 N.E.2d 828, 829.) A court may exercise jurisdiction over a nonresident defendant, such as Michely, where defendant has sufficient minimum contacts with Illinois “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) Considerable weight is given to a defendant’s voluntary acts for it is through those acts that a defendant “purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240.

Since no testimony was offered by the parties as to this matter, we must determine from all of the affidavits before us, and from the pertinent allegations of the complaint, whether the contacts of Michely with Illinois were sufficient to subject him to the jurisdiction of Illinois. Zeunert v. Quail Ridge Partnership (1981), 102 Ill. App. 3d 603, 607, 430 N.E.2d 184, 186.

Michely has never resided in Illinois and did not at any time come into the State on matters regarding his insurance with Golden Rule. No telephone calls from Michely to Golden Rule in Illinois have been made, nor has Golden Rule made any calls to Michely from its Illinois office. Defendant contends that irrespective of the initial premium forwarded on his behalf to Golden Rule’s Illinois office by Mazucca, he has forwarded all additional premium payments to the Golden Rule office in Indiana. The contacts Michely had with the Golden Rule facility in Lawrenceville, Illinois, occurred in Missouri via Mary Mazucca. Golden Rule asserted in the trial court and asserts on appeal that Michely’s contacts with Illinois via Mazucca constituted the transaction of business for purposes of the exercise of long-arm jurisdiction over Michely. Plaintiff cannot lure the nonresident defendant into the jurisdiction. Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 742, 371 N.E.2d 161, 164.

Golden Rule insists that the contract to provide insurance was entered into in Illinois, and reasons that this factor is significant in the determination of whether Michely transacted business in this State. We disagree with Golden Rule’s conclusions as to the significance of this factor. Although it was Michely who initially went to Mazucca & Associates to purchase insurance, it was Mazucca who suggested the Golden Rule policy. Furthermore, notwithstanding plaintiff’s contention that the contract was entered into in Illinois, it has not been shown that this transaction was one by which Michely purposefully availed himself of the privilege of conducting activities within Illinois and voluntarily invoked the benefits and protections of the State’s laws. (Gordon v. Tow (1986), 148 Ill. App. 3d 275, 281-82, 498 N.E.2d 718, 721.) On the contrary, the insurance policy issued to Michely indicates that the policy is to conform with the State law where the policy holder resides, which would be Missouri in this case:

“Any part of the policy in conflict with the laws of the state where you live on the policy’s effective date is changed to conform to the minimum requirements of that state’s laws.”

Golden Rule also contends that its extensive work with regard to the initial acceptance of Michely’s application for insurance, and the subsequent investigation made with regard to defendant’s claim for benefits, all occurred in Illinois. We do not find this compelling to the issue because only the acts of defendant are relevant in establishing jurisdiction over the nonresident. (Chicago Film Enterprises, 55 Ill. App. 3d at 742, 371 N.E.2d at 164.) Based on the foregoing, we believe the trial court did not err in finding that the requisite minimum contacts do not exist between Michely and Illinois to confer in personam jurisdiction, and we therefore affirm the decision of the trial court.

Affirmed.

RARICK and WELCH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    JERRY McCONNELL, Plaintiff-Appellant, v. FREEMAN UNITED COAL COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—89—0219
    Opinion filed May 7, 1990.

      Amiel Cueto and Thomas M. Daley, both of Cueto, Daley, Williams, Moore & Cueto, Ltd., of Belleville, for appellant.
    Theodore Williams, Jr., and Thomas B. Weaver, both of Armstrong, Teasdale, Schlafly, Davis & Dicus, of St. Louis, Missouri, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Jerry McConnell, appeals from an order of the circuit court of Jefferson County granting the motion for summary judgment of defendant, Freeman United Coal Company. In this cause plaintiff raises a single issue, namely, whether the trial court erred in granting defendant’s motion for summary judgment. We reverse and remand.

The pertinent facts indicate that plaintiff was employed by Koester Contracting, Inc. (hereinafter Koester), as a scraper operator. A scraper is a large piece of equipment used to scrape dirt and carry it to another location for deposit. Koester had contracted with defendant to construct a slurry impoundment dam at one of defendant’s mines located in Waltonville. Upon the dam’s construction, there would be a pit area in the middle where slurry from the coal mine would be deposited. The walls around the dam were to be built in nine-inch-thick layers called “lifts.” Until a particular lift section had been tested for compliance with contractual specifications, no additional lifts could be placed on top of that section. This necessitated continual retesting by Koester employees and defendant’s employees. Under the terms of the contract, Koester was an independent contractor.

In order to create the dam, a scraper had to be used to scrape dirt from the pit area to deposit on the dam. As part of this process, roadways were created at the work site to allow the scraper to get from the pit to the dam and back to the pit again. Vehicles called graders were used to smooth the roadways for scrapers. On September 5, 1985, plaintiff was involved in constructing the dam and was operating a scraper. Plaintiff alleges he suffered injuries to his back when the two front tires of the scraper he was operating went over what was described as a lip or precipice in the roadway created by a grader. Plaintiff described this drop as IV2 to 2 feet and also as in a location where he would ordinarily expect a smooth descent into the pit area. The evidence is disputed as to how this drop originated.

At the time of his injury, plaintiff was an employee of Koester. In addition to Koester employees, defendant’s employees also visited the dam site. Plaintiff was allegedly injured when at least two of defendant’s employees were present. Specifically, Steve Bishoff, project engineer on the construction site, and Guy Hunt, Bishoff s assistant, both o' vhom were employed by defendant, were present on the construc1 site when plaintiff was allegedly injured. Bishoff stated that he usually on the site from 5:30 each morning until anywhere from 4 or 5 o’clock in the afternoon to 8 or 9 o’clock at night from Monday through Saturday.

Although plaintiff was employed by Koester, he filed a two-count complaint against defendant on February 4, 1987. On September 28, 1988, defendant filed a motion for summary judgment. On February 21, 1989, plaintiff filed his second amended complaint. Count I based defendant’s liability as landowner for the alleged negligence of Koester as its agent; in the alternative, count II based defendant’s negligence on its duty as a landowner for Koester’s conduct as an independent contractor; count III sought punitive damages for the conduct described in the first two counts. On March 21, 1989, the trial court granted defendant’s motion for summary judgment. No reason for the trial court’s decision was stated in its order, nor was there any discussion as to which counts the trial court was granting summary judgment. For purposes of this appeal, we will consider that summary judgment was granted on all counts. Furthermore, because defendant based its motion for summary judgment on the fact that a property owner may not be held liable for injuries caused by the negligence of an independent contractor working on its premises when the landowner does not exercise control over the contractor in the performance of the contract, we will assume that this was the basis for the trial court’s decision.

Plaintiff contends that the trial court erred in granting summary judgment for defendant because there are questions of material fact for the jury to decide in this case, specifically, whether Koester was, in fact, an independent contractor, and what control, if any, defendant retained over Koester. Defendant responds that, as a matter of law, Koester was an independent contractor and defendant retained no control over the actions of Koester in performing the contract; therefore, as a matter of law, defendant cannot be held responsible for the injuries caused by the negligence of Koester.

Summary judgment should be rendered if 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. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Generally, a party injured by the negligence of another must seek his remedy against the person who caused the injury. One exception to this rule is the doctrine of respondeat superior. (Perkinson v. Manion (1987), 163 Ill. App. 3d 262, 266, 516 N.E.2d 977, 980.) Unless the relationship is so clear as to be undisputed, the issue whether one is an agent or an independent contractor is a question of fact, and the right to control the manner in which the work is to be done is the predominant factor in determining the existence of a principal-agent relationship. (Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544.) However, even if one is determined to be an independent contractor, the employer is not insulated from liability, as an employer can still be held liable for the acts or omissions of the independent contractor in certain situations. Section 414 of the Restatement (Second) of Torts provides:

“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” (Restatement (Second) of Torts §414 (1965).)

Comment c illuminates this issue even further. It states:

“It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Restatement (Second) of Torts §414, Comment c, at 388 (1965).

Section 414 and the comments thereto express the law on: this issue in the State of Illinois. (Pasko v. Commonwealth Edison Co. (1973), 14 Ill. App. 3d 481, 488, 302 N.E.2d 642, 648; Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 319, 511 N.E.2d 805, 808.) The effect of these provisions has been to broaden the basis upon which liability may be imposed on an owner of land who has contracted for work to be done on his premises. By applying section 414 of the Restatement (Second) of Torts, the courts of Illinois now recognize that an employee hired by an independent contractor to do construction work may obtain recovery for injuries sustained in the course of that work from the owner of the premises when the owner has retained the requisite control over the work and has failed to exercise that control properly. See Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 511 N.E.2d 805; Pasko v. Commonwealth Edison Co. (1973), 14 Ill. App. 3d 481, 302 N.E.2d 642; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 295 N.E.2d 41.

In the instant case, several of defendant’s employees visited the site on a regular basis. Bill Mullins, vice-president of underground mining for defendant, went to the jobsite and discussed the progress of the work with Koester’s supervisory personnel. According to Mullins, defendant’s employees were regularly present to “ensure the specifications were adhered to.” Two additional employees of defendant, Steve Bishoff and Guy Hunt, were regularly on the jobsite. In fact, Bishoff stated that he was on site from Monday through Saturday from 5:30 a.m. until 4 or 5 o’clock in the afternoon. Some days Bishoff stayed as late as 8 or 9 o’clock in the evening. According to plaintiff, Bishoff’s role was more than ensuring adherence to contract specifications. Plaintiff stated in his deposition that where material was placed “ultimately was probably *** Bishoff’s *** decision.” Apparently, Bishoff would confer with Allan Rellike, a Koester foreman, on a daily basis about where work was to be done. Bishoff would also tell the Koester foreman, on a daily basis, what portions of the dam met contract specifications and, therefore, had been approved for additional work. Until Bishoff approved an area, no more work could be done on that area. Bishoff himself stated, “So generally, they would ask me, ‘Can I load this part of the dam or this part of the dam, or etc., etc.,’ and I would tell them ‘Yes’ or ‘No.’ ” Bishoff also had the authority to halt work so that a test could be taken on a specific area. Michael Hexing, Koester foreman for the second shift from 3 p.m. until 11 p.m., stated in his deposition that defendant’s employees would direct them to another area to retrieve material for the dam if the material being used did not meet specifications. According to Hexing, if Koester employees would cut into rock, defendant’s employees had the authority to stop them from further cutting into that area and move to another area. Defendant argues that this evidence is insufficient to prove that defendant had sufficient control over the project to create any liability on the part of defendant for plaintiff’s injuries. We disagree.

We find that the evidence supports plaintiff’s argument that there are questions of material fact for the jury to decide in this case. First, there is a question whether Koester was an independent contractor or an agent of defendant. The fact that the contract designated Koester as an independent contractor is not controlling; rather, the right to control the manner of doing the work is of principal importance in the consideration of this question. (Darner v. Colby (1941), 375 Ill. 558, 561, 31 N.E.2d 950, 952; Perkinson v. Manion (1987), 163 Ill. App. 3d 262, 266, 516 N.E.2d 977, 980.) If the person for whom the work is being done retains the right to control the manner in which the work is done, the relation of employer and employee exists. (Darner, 375 Ill. at 561, 31 N.E.2d at 952.) Where one undertakes to produce a given result without being in any way controlled as to the method by which he attains it, he is considered an independent contractor rather than an employee. (375 Ill. at 561, 31 N.E.2d at 951.) However, even if Koester is found to be an independent contractor, a second question remains, namely, whether defendant retained sufficient control over the slurry impoundment dam project under section 414 of the Restatement (Second) of Torts so that defendant can be held liable for the injuries of plaintiff for failure to properly exercise that control. Whether defendant controlled the project to the extent that Koester is an agent of defendant or whether defendant retained such control over Koester as an independent contractor to impose liability are questions that are far from settled.

Defendant maintains that its employees only had the right to ensure compliance with contract specifications, which is not sufficient to support liability. (Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 319-20, 511 N.E.2d 805, 809.) However, in construing the pleadings, affidavits, and depositions strictly against the movant as we are required to do when reviewing a motion for summary judgment (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496), we believe that there are questions of fact as to what amount of control defendant retained over the dam project. As we found in Haberer, it is not clear what effect defendant’s employees’ communications with Koester’s supervisors carried. (See Haberer, 158 Ill. App. 3d at 320, 511 N.E.2d at 809.) Defendant’s entitlement to summary judgment was not clear and free from doubt, and its motion should have been denied.

For the foregoing reasons, the order of the circuit court of Jefferson County is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


author: JUSTICE HARRISON

text:
    BANK OF ALTON, Special Adm’r of the Estate of Ollie Odom, Deceased, Plaintiff, v. JOHN H. BOWMAN, Defendant (Storment and Read, P.C., Petitioner-Appellant; Paul L. Pratt, P.C., Respondent-Appellee).
    Fifth District
    No. 5—89—0179
    Opinion filed May 8, 1990.
    Storment & Read, P.C., of Belleville, for appellant.
    Pratt & Callis, P.C., of Granite City, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The law firm of Storment and Read, P.C., appeals from an order of the circuit court of Madison County which denied its petition for attorney fees. For the reasons which follow, we affirm.

This litigation arose out of an accident in which Ollie Odom suffered serious and permanent injuries when her pickup truck collided with a vehicle driven by defendant, John Bowman, who was an Illinois State Trooper. Ollie and her husband, William, filed an action against defendant in the circuit court of Madison County alleging, inter alia, that defendant had negligently operated his vehicle at an excessive rate of speed, thereby causing the accident. Count I of their complaint, as amended, sought recovery on behalf of Ollie for her injuries and all attendant medical expenses. Count II, brought on behalf of William, prayed for recovery for the medical bills incurred by his wife for which he would be liable and for his loss of consortium.

The Odoms originally retained a lawyer named David Virgin to represent them. P. Michael Read of the law firm of Storment and Read, P.C., then became associated with the case. A substantial settlement offer was obtained from the defendant. That offer was not accepted, however, and the case proceeded to trial before a jury. Both Virgin and Read represented the Odoms in that trial.

The trial came to a conclusion on October 25, 1985, when the jury returned a verdict in favor of defendant and against the Odoms. Attorney Read filed a post-trial motion on behalf of the Odoms approximately five days later. Thereafter, the Odoms terminated Read as their attorney and hired as replacement counsel the law firm of Pratt & Callis, P.C. Pratt & Callis then filed a supplemental post-trial motion on January 23, 1986. That motion was granted by order of the circuit court on March 27, 1986, and a new trial was ordered. Following motions for reconsideration, the order granting a new trial was affirmed. Defendant, Bowman, attempted to bring an appeal from the new trial order, but this court dismissed that appeal in an opinion filed in 1987. Odom v. Bowman (1987), 159 Ill. App. 3d 568, 511 N.E.2d 1265.

At some point, Ollie Odom died, and on retrial, the case proceeded as a wrongful death action. Pratt & Callis had considerably more success at the second trial than Storment and Read had had at the first. At the second trial, the jury returned a verdict against the defendant which, when reduced by Ollie Odom’s comparative negligence, resulted in a net award of $105,600.

After this successful retrial of the case by Pratt & Callis, Storment and Read filed a petition requesting that plaintiffs be required to pay the law firm its reasonable attorney fees and the costs it had expended in the case. Storment and Read’s fee request totaled $11,680, which included 108x/2 hours of preparation work for the first trial at $80 per hour, plus $1,000 a day for each of the three days that trial lasted. The firm’s cost bill totaled $4,014.66.

Following a hearing, the circuit court entered an order awarding Storment and Read $4,014.66 to “be paid from the proceeds of the lawsuit,” in order to reimburse the firm for its costs. At the same time, the court denied in its entirety the law firm’s request for attorney fees. It is from that portion of the circuit court's order that Storment and Read now appeals.

On this appeal, Storment and Read claims that it should have been awarded compensation for the professional services it rendered on behalf of the Odoms in connection with the first trial based on quantum meruit. We disagree. The term quantum meruit literally means “as much as he deserves.” (Van C. Argiris & Co. v. FMC Corp. (1986), 144 Ill. App. 3d 750, 753, 494 N.E.2d 723, 725.) It is a term that describes a recovery which is based on the reasonable value of services that have been performed. The theory of recovery in quantum meruit is that a party has received a benefit which would be unjust for him to retain without paying for it. Therefore, in order to recover in quantum meruit, it is essential that the services performed by the claimant must be of some measurable benefit to the person from whom recovery is sought. 144 Ill. App. 3d at 753, 494 N.E.2d at 725-26.

In actions to recover compensation for legal services, the burden of proof rests on the attorney to establish his case. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 409, 484 N.E.2d 890, 893.) In this case, however, Storment and Read has failed to prove that the services it provided were of any measurable benefit to the Odoms. The only evidence adduced by the law firm in support of its claim for fees consisted of: (1) an itemized list of the time spent on the case by the firm, with a brief description of the services performed; and (2) oral testimony by attorney Read, the lawyer who had handled the case for the firm. In his testimony, Read described his involvement in the case, explained how the time list had been prepared, and discussed the rates at which the firm was seeking compensation. No effort was made, however, to show how, if at all, the work performed by Storment and Read advanced the Odom’s claim.

When Storment and Read appeared as counsel for plaintiffs, plaintiffs lost. Plaintiffs obtained no relief until Pratt & Callis took over the case. It is certainly possible, of course, that some of the work done by Storment and Read was ultimately utilized by Pratt & Callis in their successful retrial of the case. Had this been established, had Storment and Read proved that its work contributed to the verdict finally won by plaintiffs, Storment and Read could legitimately have claimed that its services were of some measurable benefit, thus entitling it to compensation based on quantum meruit. But the firm made no such showing. Even in its brief on appeal, Storment and Read makes no attempt to explain how the work it did helped Pratt & Callis win the case.

Because Storment and Read failed to meet its burden of establishing its entitlement to compensation (see In re Estate of Healy (1985), 137 Ill. App. 3d 406, 409, 484 N.E.2d 890, 893), the circuit court was correct in denying its petition for attorney fees. The February 22, 1989, order of the circuit court of Madison County denying Storment and Read’s claim for attorney fees is therefore affirmed.

Affirmed.

LEWIS, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE GOLDENHERSH WELCH, J.,

text:
    CATHRYNE ROBERSON, by her Brother, Next Friend and Guardian, Benjamin Isaac, Plaintiff, v. M.J. LIU et al., Defendants (John C. Ryan, Attorney at Law, Contemnor-Appellant).
    Fifth District
    No. 5—87—0801
    Opinion filed May 8, 1990.

      WELCH, J., specially concurring.
    John C. Ryan, pro se, and Michael F. Dahlen, both of Feirich, Schoen, Mager & Green, of Carbondale, for appellant.
    Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville (Bruce N. Cook, of counsel), for Cathryne Roberson.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, and Judge & Knight, Ltd., of Park Ridge (William 0. Martin, Jr., and Martin D. Hoke, of counsel), for amicus curiae Illinois Association of Defense Trial Counsel.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The question before this court, in what appears to be a tangential discovery dispute in a medical malpractice action, in reality involves the integrity of the entire discovery process in the State of Illinois, the applicability of the discovery rules as rules of procedure and not mere advisory suggestions for conduct in the development of a cause of action prior to trial, and the ability of the judiciary to make these rules of discovery practical and effective in the context of intensely adversarial litigation. In this cause, a trial judge was faced with a violation of the spirit and intent of discovery as mandated by our supreme court and responded appropriately.

The system of discovery contained in our supreme court rules (107 Ill. 2d R. 201 et seq.) establishes a comprehensive framework for the revelation of evidence and matters leading to the discovery of admissible evidence. The hallmarks of this system are liberality of discovery wherein these rules are to be interpreted in favor of disclosure of information and, concurrently, a restrictive interpretation of the scope of those privileges which still exist by statute or by decision of a court of review. Another hallmark of this system is its comprehensiveness, for the spirit and intent of our rules of discovery mandate that development of information lead to informed and intelligent analysis of a cause of action in all its aspects and informed, intelligent resolution of that cause either by settlement or trial. All corners of a cause of action are to be illuminated by the light of knowledge.

The comprehensiveness of this system is further indicated by rules governing the discovery process from the initiation of a cause of action through trial. As befits any system that deals in general rules of behavior, both mandatory and prohibitive, that are applied to complex factual scenarios, our discovery system also lodges a wide scope of discretion in the trial court. It is charged with the responsibility to oversee the discovery process, regulate it, and impose sanctions of varying degree when the rules of that process have been violated. Finally, and focusing on the matter directly at issue in this cause, the discovery process is exclusive. The decision of Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, rendered by the Appellate Court for the First District, directly addresses this question and rules in favor of the exclusivity of our discovery processes.

What the trial court faced in this case was a challenge to all of these aspects of our discovery system. We conclude that the trial court’s actions upholding the spirit, intent, and letter of the discovery rules were appropriate. For reasons we state later, we vacate the actual finding of contempt entered by the trial court.

Attorney John C. Ryan represented Dr. M.J. Liu, defendant in a medical malpractice action brought on behalf of plaintiff, Cathryne Roberson, by her brother, next friend and guardian, Benjamin Isaac, against Dr. Liu, Belleville Anesthesia Associates, Ltd., and Memorial Hospital. On January 9, 1985, attorney Ryan traveled to San Antonio, Texas, to take a sworn statement from Eileen MacKenzie, a nurse who had been present during, and assisted Dr. Liu in, the surgery during which plaintiff sustained the injuries for which she brought suit. Nurse MacKenzie had been an employee of the defendant hospital at the time of plaintiff’s surgery. Prior to taking Nurse MacKenzie’s statement, Ryan did not notify plaintiff of his intention to do so, nor did Ryan utilize any of the discovery procedures authorized by supreme court rule to obtain the statement.

On June 12, 1987, plaintiff filed a motion to strike defendant Dr. Liu’s answer and enter default judgment against him since defendant had failed to produce, pursuant to plaintiff’s request to produce filed September 15, 1983, the statement of Nurse MacKenzie. Defendant responded that Nurse MacKenzie’s statement had not been taken at the time plaintiff filed her request to produce, but that it had since been provided to plaintiff. On November 2, 1987, the circuit court of St. Clair County denied plaintiff’s motion to strike defendant Liu’s answer and enter default judgment, finding no continuing duty upon defendant to supplement its response to plaintiff’s request to produce.

Although there is no report of proceedings contained in the record on appeal, the trial court's order of November 2, 1987, recites that plaintiff made an oral motion for sanctions against defendant for taking a statement from Nurse MacKenzie without first obtaining authorization from plaintiff. The trial court granted this motion, finding that the information obtained by defendant from Nurse MacKenzie was privileged pursuant to the physician-patient privilege, which must, the trial court reasoned, include within its purview a nurse-patient privilege when that nurse is acting in her professional capacity and assisting or acting as agent of the physician in the treatment of the patient. Relying upon Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, decided June 26, 1986, the trial court further held that ex parte communications outside authorized discovery channels are prohibited between an attorney and a party’s treating nurse just as they are between an attorney and a party’s treating physician. Thus, the court found that the ex parte statement taken by attorney Ryan from Nurse MacKenzie was improper and adjudged attorney Ryan in contempt.

The parties’ briefs and arguments and the amicus curiae brief of the Illinois Association of Defense Trial Counsel present a number of issues for this court to address: whether the physician-patient privilege should be extended to other health professionals, in this instance, a nurse; the status of ex parte conferences; the extent of a plaintiff’s waiver of physician-patient privilege by filing of suit; and the sufficiency of the evidence supporting the instant contempt finding. We begin our consideration of the issues posed by the parties with an examination of the discovery context in which this controversy arose.

As noted by our supreme court in addressing the mandatory nature of criminal rules of procedure in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the rules promulgated by the supreme court are, in fact, rules, and not advisory suggestions for conduct of the lower courts and the bar. As the legislative intent of rules and statutes is necessarily a part of those enactments, we interpret Wilk to order the intent of applicable rules of procedure be followed as well as the letter. By analogizing the supreme court’s position in Wilk to civil rules, the spirit and intent of the discovery rules are mandatory for all participants in the discovery process. The next question before this court is whether those discovery rules apply to the facts of this cause.

The exclusivity and broad application of these rules of discovery was succinctly addressed in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, appeal denied (1987), 113 Ill. 2d 584, 505 N.E.2d 361, cert. denied (1987), 483 U.S. __, 97 L. Ed. 2d 738, 107 S. Ct. 3232, in the context of ex parte contact between a plaintiff’s treating physician and a defendant’s counsel. The Petrillo court held that such ex parte contact is not authorized by the rules, noting that the structure and supervision authority inherent in those rules serve to protect various societal interests such as the confidentiality and fiduciary nature of the physician-patient relationship. We specifically adopt Petrillo and proceed to the next question before this court, whether Petrillo applies to the case at bar.

We hold that Petrillo does apply to the instant case and that the holding of Petrillo was properly applied by the trial court to this nurse when acting in her professional capacity and assisting a doctor in treatment of a patient. We conclude that such application of Petrillo is necessary in order to give its specific holding and its articulation of the intent of our discovery process a practical effect. Petrillo, applied to this case, is also in accord with the ethical statements of nursing embodied in the Nightingale Pledge, which states:

“I Solemnly Pledge Myself Before God And In The Presence of This Assembly:
To pass my life in purity and to practice my profession faithfully.
I will abstain from whatever is deleterious and mischievous, and will not take or knowingly administer any harmful drug.
I will do all in my power to maintain and elevate the standard of my profession, and will hold in confidence all personal matters committed to my keeping, and all family affairs coming to my knowledge in the practice of my profession.
With loyalty will I endeavor to aid the physician in his work, and devote myself to the welfare of those committed to my care.” (This pledge was formulated in 1893 by a committee of which Mrs. Lystra E. Gretter, R.N., was chairman.)

Such application of Petrillo advances the public policies of confidentiality in the doctor-patient relationship and disclosure by the regulated and supervised discovery process rather than unregulated, open-ended and surreptitious ex parte contacts. To hold otherwise will allow ex parte contacts to do violence both to the doctor-patient relationship and our State’s discovery processes.

Application of Petrillo is also in accord with the development of its holdings. The court in Ritter v. Rush-Presbyterian-St. Luke’s Medical Center (1988), 177 Ill. App. 3d 313, 532 N.E.2d 327, cited Petrillo in barring the defendant medical center from communicating ex parte with and calling as its witnesses plaintiff’s treating physicians who were also on defendant’s staff. Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519, held the trial court’s failure to bar a doctor’s testimony after ex parte communication constituted reversible error, again citing Petrillo.

The court in Karsten v. McCray (1987), 157 Ill. App. 3d 1, 509 N.E.2d 1376, addressed the issues of waiver of physician-patient privilege and ex parte communications together. That court authorized barring on the basis of Petrillo a treating physician who had ex parte communications with the defendant’s counsel. Its analysis and application of Petrillo stated:

“The Petrillo court held that the public policy in protecting the confidences of the physician-patient relationship strongly favored control over a defendant’s right to interview a plaintiff’s treating physician. [Citation.] The court stated that this public policy was reflected in the code of ethics adopted by the medical profession and the fiduciary relationship which exists between a patient and his treating physician. [Citation.] Although the court recognized that by filing a lawsuit, a plaintiff implicitly consents to his physician releasing medical information related to the condition he has placed at issue, it stated that this implicit consent is necessarily limited to the release of relevant information pursuant to court-authorized discovery. [Citation.] The court concluded that any discussions between defense counsel and a plaintiff’s treating physician should be conducted pursuant to the rules of formal discovery only. [Citation.]
We believe that the reasoning and holding of Petrillo is sound, and we adopt it here. While Petrillo did not expressly state that the fruits of such unauthorized interviews should be barred from being introduced, allowing such testimony to stand would render the Petrillo holding hollow and meaningless. We therefore further hold that barring the testimony of a plaintiff’s treating physician is an appropriate sanction to protect the physician-patient privilege from defense interviews outside formal discovery. While an order barring the testimony or evidence resulting from such unauthorized conferences would not remedy the breach of trust addressed by Petrillo, it would nevertheless be an appropriate sanction to protect the patient’s confidences and to preclude such conferences from taking place, which was in fact the goal sought by that court.” (Emphasis added.) 157 Ill. App. 3d at 13-14, 509 N.E.2d at 1383-84.

Defendant urges us to limit the application of Petrillo to physicians only, noting accurately that the Illinois courts applying that case have done so to physicians. In this cause, we address the question whether the Petrillo doctrine may be properly applied to a health professional other than a physician who, in a professional capacity, has assisted a physician in treatment of a plaintiff. We hold that Petrillo should be applied to that health professional, in this instance a nurse.

Just as “no man is an island” (John Donne), no physician acts alone in the discharge of professional, fiduciary duties to a patient. To note this reality and apply rules consistent with those applied to physicians gives practical effect to Petrillo. This assures and strengthens the public policies of confidentiality and fiduciary duty in the physician-patient relationship and disclosure of information by the regulated and supervised discovery process rather than uncontrolled and surreptitious ex parte conferences.

The result of the application by the trial court of the Petrillo doctrine is the judgment of contempt that is specifically before us in the instant case. “Contempt of court has been generally defined as conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.” (In re Estate of Melody (1969), 42 Ill. 2d 451, 452, 248 N.E.2d 104, 105.) While there are different types of contempt — direct, indirect, civil, criminal — they all have this in common, and it is this element which we find missing in the instant case. The actions taken by respondent in this cause occurred prior to the issuance of the Petrillo opinion. Prior to that opinion one could argue that the discovery process might not apply to the facts at bar. Given these circumstances, we hereby vacate the finding of contempt entered against John C. Ryan. While the trial court had the authority to impose sanctions in this case (see Supreme Court Rule 219 (107 Ill. 2d R. 219)), the delineation of prohibited conduct in this case was not sufficiently clear to justify imposition of criminal contempt.

By our vacation of the finding of contempt imposed by the trial court we in no way intend to diminish the mandatory character of the discovery rules, nor the broad range of discretion given to the trial court to regulate the discovery process by means of sanction. (See Supreme Court Rules 219, 220 (107 Ill. 2d Rules 219, 220).) The result in the instant appeal is unique due to the fortuitous timing of events in this cause.

For the foregoing reasons, we vacate the order of the circuit court of St. Clair County.

Finding vacated.

RARICK, J., concurs.

WELCH, J.,

specially concurring:

In the interest of judicial restraint, I must specially concur. It is axiomatic that a reviewing court should not consider questions or contentions which are not essential to the determination or final disposition of the cause before it, nor should a reviewing court consider a question or contention where the result will be the same no matter how such question or contention is decided. (City of Chicago v. Cohen (1977), 49 Ill. App. 3d 342, 344, 364 N.E.2d 335, 337.) Yet the majority does exactly that.

The only issue before this court on appeal is whether the trial court erred in adjudging appellant, John C. Ryan, guilty of contempt for taking an ex parte statement from a nurse who treated plaintiff. In so ruling, the trial court held that the physician/patient privilege includes within its purview a nurse/patient privilege which is protected from ex parte discovery in a medical malpractice case under Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.

The majority properly holds that the finding of contempt was in error and must be vacated because the actions taken by appellant which the trial court found to be contemptuous occurred prior to the decision in Petrillo. Thus, there was no case law prohibiting ex parte communications between an attorney and a party’s treating physician. Furthermore, there was no statutory or case law recognizing a nurse/ patient privilege, nor was there any case law construing the physician/patient privilege as including a nurse/patient privilege. Thus, at the time appellant took Nurse MacKenzie’s statement, he was not acting in contravention of any statute, case law, supreme court rule or order of court. That the trial court thought appellant acted improperly in taking Nurse MacKenzie’s statement ex parte does, not lead to a finding of contempt unless the record also reflects that appellant acted with intent to embarrass, hinder or obstruct the trial court in its administration of justice. (See People v. Wolf (1987), 162 Ill. App. 3d 57, 514 N.E.2d 1218.) The majority properly found that this element was missing from the instant case. That is all that is necessary for the disposition of this case.

However, the majority goes far beyond what was necessary to decide this case. The majority takes this relatively simple case, involving no complex or novel issues of law, and characterizes it as one involving “the integrity of the entire discovery process in the State of Illinois, the applicability of the discovery rules as rules of procedure and not mere advisory suggestions for conduct in the development of a cause of action prior to trial, and the ability of the judiciary to make these rules of discovery practical and effective in the context of intensely adversarial litigation.” (198 Ill. App. 3d at 333.) The majority then goes on to adopt the ruling in Petrillo and, worse yet, to extend the decision in Petrillo to include ex parte communications with nurses as well as doctors. In fact, the majority extends Petrillo to any “health professional other than a physician who, in a professional capacity, has assisted a physician in treatment of a plaintiff.” (198 Ill. App. 3d at 338.) It is obvious that this holding was not necessary to the decision of this case and does not affect the decision herein.

If an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, a court should not resolve the question merely for the sake of setting a precedent to govern potential future cases. (Hall v. Illinois Property Tax Appeal Board (1981), 98 Ill. App. 3d 824, 828, 424 N.E.2d 375, 379.) Moreover, a court may not speak authoritatively upon questions not involved in the litigation, and expressions of opinions upon extraneous matters necessarily lack binding force. Superior Coal Co. v. O’Brien (1943), 383 Ill. 394, 406, 50 N.E.2d 453, 459.

In Sleeth v. Illinois Department of Public Aid (1984), 125 Ill. App. 3d 847, 850, 466 N.E.2d 703, 706, the court held that if certain procedures are found to violate a statute, it is unnecessary to consider whether those procedures might be unconstitutional if they were allowed by statute. Questions as to the constitutionality of the procedures were deemed to be abstract questions which were not properly reviewable.

In Yale Development Co. v. Andermann (1976), 37 Ill. App. 3d 33, 39, 344 N.E.2d 701, 707, it was held that whether the court was correct in viewing the relationship of the parties as a joint venture was not essential to the determination of the case because the decision turned on other factors. Thus, that aspect of the trial court’s decision was not reviewed.

Bejda v. SGL Industries, Inc. (1979), 73 Ill. App. 3d 484, 489-90, 392 N.E.2d 38, 43, is particularly apposite to the case at bar. In that case, plaintiffs’ complaint was dismissed as a sanction for failure to comply with the court’s order to file an amended bill of particulars. The appellate court found that this was too drastic a sanction and reversed. Both parties filed petitions for rehearing, and a supplemental opinion was issued denying those petitions. In their petition for rehearing, plaintiffs argued that their complaint stated a cause of action and asked the court to rule on whether the reasoning of a certain supreme court decision should be applied to their case. The court held, however, that no substantive products liability law was involved in the dismissal order and therefore the principle of the supreme court case was simply not relevant to the issues presented on appeal. Thus, the court held, there was no reason to consider the question of its applicability to the allegations of plaintiff’s complaint.

Similarly, in the case at bar, the -wisdom or propriety of the Petrillo decision and its applicability to this case involving a nurse are simply not relevant to the issue presented on appeal. It should not have been addressed by the majority and, although I concur wholeheartedly in the result reached by the majority, I cannot concur in its opinion.


text:
    RICHARD O’BRIEN, Plaintiff-Appellant, v. MICHAEL ROGERS, Defendant-Appellee.
    Fifth District
    No. 5—89—0317
    Opinion filed May 8, 1990.

      William L. Broom III and Craig R. Reeves, both of Barrett, Twomey, Morris, Broom & Hughes, of Carbondale, for appellant.
    Charles E. Schmidt and Rebecca J. O’Neill, both of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Richard O’Brien, brought an action in the circuit court of Saline County to recover damages for personal injuries he sustained while helping defendant, Michael Rogers, rebuild the roof on defendant’s garage. Plaintiff’s complaint contained two counts. Count I sought to impose liability on defendant under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Count II alleged common-law negligence. Following discovery, defendant moved for summary judgment pursuant to section 2—1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) as to both counts. Defendant’s motion was granted, and plaintiff now appeals. For the reasons which follow, we reverse and remand for further proceedings.

The standards governing an award of summary judgment are well established. The purpose of summary judgment is not to try an issue of fact, but to determine whether a triable issue of fact exists. Although summary judgment is recognized as a salutary procedure in the administration of justice, it should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped. Only 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 judgment as a matter of law should summary judgment be awarded. Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 316-17, 511 N.E.2d 805, 807.

Because of the extreme nature of summary judgment, a court must exercise extraordinary diligence in its review of the record so as not to preempt a party’s right to trial by jury or its right to fully present the factual basis for its claim. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) The court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (124 Ill. App. 3d at 164, 463 N.E.2d at 1344.) If any material facts upon which reasonable persons may disagree are identified, or if inferences which may be drawn from those facts lead to different conclusions, the court must deny the motion and direct that resolution of those facts and inferences be made at trial. Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 400, 515 N.E.2d 1047, 1053.

The record before us in this case includes the depositions of plaintiff, plaintiff’s wife, plaintiff’s mother-in-law, defendant, and one of defendant’s friends, Mike May. Also included is a brief affidavit submitted by defendant. Those materials show that the accident which gave rise to this litigation took place in June of 1986. At that time, defendant was rebuilding the roof on his garage. Defendant was a self-employed general contractor and was handling the work himself. To assist him on the project, defendant enlisted the help of Mike May and plaintiff. May had never done carpentry work for a living, but was a friend of defendant’s and had helped defendant do work on his house before. Plaintiff himself was a general contractor and was in the contracting business with defendant.

The record shows that defendant had previously helped plaintiff put a new shingle roof on plaintiff’s house, and there was evidence to suggest that plaintiff was helping defendant rebuild his roof in order to reciprocate. This point was disputed, however. In his affidavit, defendant acknowledged that he had helped work on plaintiff’s roof, but he stated that “[he] did not expect [plaintiff] to pay [him], compensate [him] in any way, or help on any future projects [he] might have.” Defendant further indicated that at the time of plaintiff’s accident, “[he] did not have any specific agreements with [plaintiff] to ‘barter’ or exchange services.” Plaintiff, on the other hand, testified at his deposition that there was a barter agreement between the two men under which they agreed to trade their labor with one another. The existence of such an agreement to exchange labor was corroborated by plaintiff’s wife, and was not actually denied by defendant during his deposition. At that deposition, defendant testified that “[a]t the time I did his roof, I had no idea that we was [sic] going to be doing mine. It wasn’t arranged ahead of time that way.” Nevertheless, when asked whether the arrangement had not, in fact, “worked out to be a trade type relationship,” defendant answered in the affirmative.

Defendant had completely removed the old garage roof “all the way down to the ceiling joists.” The joists were spaced at irregular intervals and were not covered by any sheathing material. The first step in defendant’s plan for rebuilding the roof called for the laying of a sheathing material called Aspenite across the exposed joists. According to defendant, the Aspenite sheathing was to be laid “so we would have a place to stand while we put up the rafters.” On the day of the accident, the sheets of Aspenite had already been purchased and were stacked in a pile inside the garage. Mike May came over to defendant’s house, and at about one o’clock in the afternoon, the two began work.

The installation of the Aspenite proceeded as follows. May would lift the sheets up to defendant, who would then nail them in place on top of the ceiling joists. Once the first few sheets were thus secured, a number of additional sheets were brought up and laid out across the ceiling joists by defendant. Defendant was in the process of nailing down these additional sheets when plaintiff arrived at the jobsite to begin work at approximately three o’clock.

Upon his arrival, plaintiff climbed a ladder to join defendant on the Aspenite platform which was being erected on top of the joists. Defendant testified at his deposition that he was aware that it was not safe to walk across the sheets which had not yet been secured to the joists. He stated that he would not have walked on those sheets himself, because the irregular spacing of the joists meant that too much of the sheets would be “hanging unsupported.” Nevertheless, he admitted that he did not tell plaintiff that some of the sheets of Aspenite had not yet been nailed down, nor did he give plaintiff any warnings.

Mike May testified at his deposition that plaintiff was aware that not all of the boards were nailed down, because nailing down boards was the very thing plaintiff had climbed up the ladder to do. Defendant’s deposition testimony was not so clear on this point. In any case, there is no real dispute as to what happened next. As he was standing on the platform of Aspenite sheets, plaintiff stepped on a sheet which had not yet been nailed down. The sheet gave way, and plaintiff fell to the floor below, sustaining serious and permanent injuries.

Following this accident, plaintiff brought an action in the circuit court of Saline County to recover damages from defendant for the injuries he sustained. As we noted at the outset of this opinion, plaintiff’s complaint was in two counts. Count I sought to impose liability on defendant pursuant to the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Count II alleged common-law negligence. Following discovery, defendant filed a motion for summary judgment as to both counts. Plaintiff opposed that motion and filed his own motion to strike an affidavit which had been submitted by defendant in support of his summary judgment motion. On April 19, 1989, the cir-cult court entered an order granting defendant’s motion for summary-judgment and denying plaintiff’s motion to strike. From this order, plaintiff now appeals.

On this appeal, plaintiff first argues that the circuit court erred in entering summary judgment against him on the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) claim asserted in count I of his complaint. We agree. The Structural Work Act provides, in part:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1987, ch. 48, par. 60.

Defendant asserts that the Act cannot be invoked by plaintiff here because when plaintiff helped rebuild defendant’s roof, he did so voluntarily and without pay. As we have previously indicated, however, the record before us contains evidence from which reasonable persons could conclude that plaintiff was actually working on defendant’s roof pursuant to a barter agreement between the parties for an exchange of their labor. If this were, in fact, the case, we do not believe that plaintiff could be characterized as an uncompensated volunteer.

Even if we were to assume for the sake of argument that plaintiff was working for free, defendant’s argument would still fail. Nothing in the language of the Structural Work Act limits the statute’s coverage to individuals who are being paid for their labor. The Act requires that scaffolding and other support devices must be so erected and constructed, placed and operated so as to give proper and adequate protection not only to persons “employed” thereon, but also to persons “engaged” thereon. (Ill. Rev. Stat. 1987, ch. 48, par. 60.) The word “engaged” has been defined as meaning “to be busied,” “to carry on,” “to devote attention and effort,” “to embark on,” or “to take part in.” (30 C.J.S. Engage at 698 (1965).) None of these definitions implies payment for services.

We recognize, of course, that the word “engaged” has sometimes also been defined to mean “employed” (30 C.J.S. Engage at 698 (1965)), and that “employment” normally suggests the payment of compensation. We do not believe that such interpretation was intended by the legislature here, however. To hold otherwise would render the term “engaged” completely superfluous. This would violate one of the basic rules of statutory construction, namely, that statutes should, if possible, be construed so that no term is rendered meaningless or superfluous. Niven v. Siqueira (1985), 109 Ill. 2d 357, 365, 487 N.E.2d 937, 942.

That the Structural Work Act is not limited to persons who are paid for their work is evident when one considers the purpose for which the statute was enacted. Our supreme court has recently noted that the legislature enacted the Structural Work Act in order to provide protection to workers engaged in activities of a particularly hazardous nature. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 7-8.) This suggests that the critical inquiry under the Act is the type of activity in which an individual is involved, not whether he receives compensation for that involvement.

Consistent with this view, a cause of action has been recognized under the Structural Work Act where an individual has been injured while engaged in an activity covered by the Act even though that individual was not employed or paid by the person upon whom he sought to impose liability. (See Carlton v. Verplaetse (1983), 120 Ill. App. 3d 795, 458 N.E.2d 584.) In order for a plaintiff to recover in an action brought under the Structural Work Act, he must establish only that:

“ ‘(1) [he was] involved in a construction activity covered by the Act; (2) the activity was being performed with reference to a structure covered by the Act; (3) a scaffold or other mechanical device as defined by the Act was being used in the activity; (4) the scaffold or device was unsafe, or not safely placed or operated; (5) the unsafe condition proximately caused plaintiff’s injury; (6) the defendant had charge of the work, as that phrase has been interpreted under the Act; and (7) the defendant willfully violated the Act.’ ” (Tracy v. Montgomery Ward & Co. (1990), 193 Ill. App. 3d 304, 307-08, 549 N.E.2d 984,987, quoting Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 488, 531 N.E.2d 51, 55.)

Whether plaintiff here was paid or not therefore has no bearing on the viability of his claim against defendant.

As an alternative basis for upholding the circuit court’s judgment, defendant argues that there was no evidence that he had committed a willful violation of the safety standards required by the Structural Work Act. A willful violation of the Act is committed when one having charge of the work knows that a dangerous condition exists on the support device or, by exercise of reasonable care, could have discovered the existence of the condition. (Brazier v. Kontos (1987), 160 Ill. App. 3d 177, 182, 513 N.E.2d 152, 156.) The question of willfulness is primarily a factual one for the jury to decide. (160 Ill. App. 3d at 182, 513 N.E.2d at 156.) In this case, the evidence showed: (1) that defendant was fully aware that not all of the Aspenite sheets had been nailed down when plaintiff climbed up the ladder to begin work on the roof, and (2) that defendant realized that unsecured sheets were not safe to walk on. This evidence certainly raises a jury question on the issue of willfulness. Summary judgment therefore could not be justified on the grounds that defendant had not acted willfully.

In granting summary judgment for defendant, the circuit court did not, in fact, rely on the proposition that defendant had not acted willfully, nor did it base its decision on the fact that plaintiff was an unpaid volunteer. Rather, the court apparently believed that plaintiff could not recover under the Structural Work Act because the Aspenite platform from which he fell did not constitute a “scaffold” within the meaning of the Act. We cannot agree with this analysis. The courts of this State have recognized that where a floor is used simply as a floor, it is not a scaffold or other similar mechanical device within the meaning of the Act. (See Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 423, 512 N.E.2d 1223, 1225.) As our review of the record has shown, however, such was not the case here. According to defendant himself, the Aspenite sheeting from which plaintiff fell was being erected for the express purpose of providing a platform so that the parties would have a place to stand while they put up the rafters on the garage. Where, as here, a worker relies on a partially completed floor for support as a working platform, he may recover under the Act. See 117 Ill. 2d at 423, 512 N.E.2d at 1225.

Defendant’s final argument in support of the circuit court’s entry of summary judgment on plaintiff’s Structural Work Act claim is that because the Aspenite platform from which plaintiff fell was not yet completed at the time of plaintiff’s accident, that platform did not yet fall within the protections of the Act. This argument is wholly without merit. By its terms, the Act provides that scaffolds “shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 60.) Under any reasonable interpretation, we believe that this language must be understood to mean that the coverage of the Act is not limited to an individual who is injured while employed or engaged on a scaffold which is already completed, in place, and in operation, but that it also extends to individuals injured while employed or engaged on a scaffold which is still in the process of being put into place, as was the case here.

Such an interpretation is fully consistent with this court’s holding in Miller v. Clark Wood Construction Co. (1987), 151 Ill. App. 3d 723, 502 N.E.2d 1061. There, we found that the Act applied even to a worker who was injured when a device covered by the Act, a crane, was being dismantled following the completion of the construction work for which it had been utilized. If a device is subject to the Act while being taken apart after the structural activity for which it was used has ended, it must surely be the case that the Act will apply with equal force to a scaffold or other covered device where, as here, the scaffold or device is in the process of being built so that the structural activity involved may first begin.

In sum, none of the arguments advanced by defendant can support the circuit court’s ruling on plaintiff’s Structural Work Act claim, and we have found no other basis upon which that ruling can be sustained. The circuit court’s entry of summary judgment in favor of defendant and against plaintiff on count I of plaintiff’s complaint must therefore be reversed. We turn then to the propriety of the circuit court’s entry of summary judgment in favor of defendant on count II of plaintiff’s complaint for common-law negligence.

In a cause of action alleging negligence, a plaintiff must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. (Romano v. Bittner (1987), 157 Ill. App. 3d 15, 22, 510 N.E.2d 924, 929.) We believe that plaintiff here could bring a negligence action against defendant based on the breach of defendant’s duty as a possessor of land to plaintiff, who was an invitee on his premises. The duty owed by possessors of land as to conditions on their land is set forth in section 343 of the Restatement (Second) of Torts (1965), which has been incorporated into the common law of Illinois. (Courtney v. Allied Filter Engineering, Inc. (1989), 181 Ill. App. 3d 222, 226, 536 N.E.2d 952, 956.) That section provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343 (1965).

An “invitee” has been defined as a person who enters the premises pursuant to an express or implied invitation to transact business in which he and the owner have a mutual interest, or to promote some real or fancied material, financial or economic interest of the owner. (Skoczylas v. Ballis (1989), 191 Ill. App. 3d 1, 4, 547 N.E.2d 565, 566-67.) The record which has thus far been adduced indicates that plaintiff here fell within this definition at the time of his accident. Although the Premises Liability Act has abolished the distinction between invitees and licensees with respect to the duty owed by a landowner (Ill. Rev. Stat. 1987, ch. 80, par. 302), the act did not significantly alter the duty owed to an invitee. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 142-43.) Because plaintiff was an invitee, defendant owed him a general duty to use reasonable and ordinary care in keeping the property reasonably safe. Courtney v. Allied Filter Engineering, Inc. (1989), 181 Ill. App. 3d 222, 226, 536 N.E.2d 952, 956.

In this case, defendant does not deny that the loose sheets of Aspenite on the garage ceiling presented an unreasonable risk of harm to plaintiff. Defendant was, of course, fully aware that these sheets were unsecured. He also fully realized the risk of harm which the unsecured sheets presented, as demonstrated by the testimony he gave at his deposition that he would not, himself, have walked across the unsecured boards because of the potential that they might give way.

Defendant nevertheless contends that he cannot be held liable to plaintiff because at the time plaintiff was injured, defendant was in the process of securing the Aspenite sheets to the joists. According to defendant’s counsel, “Defendant cannot be faulted for failing to nail [the sheet] before Plaintiff came to the work area, since Defendant was already in the process of nailing the boards and merely had not yet reached the one which the Plaintiff was proceeding to nail.” What defendant really appears to be suggesting here is that he was doing everything he could to secure the sheets of Aspenite and therefore could not be said to have failed to exercise reasonable care to protect plaintiff against the danger posed by the unsecure sheets. We do not believe that the matter is so clear cut. From the record before us, it appears that this accident might have been avoided had defendant simply warned plaintiff to be careful as he walked across the unsecured sheets. By defendant’s own admission, no such warning was given. Accordingly, a jury might have concluded that defendant did in fact fail to exercise reasonable care to protect plaintiff.

Defendant seeks to avoid this conclusion by arguing that plaintiff was fully aware that some of the Aspenite sheets had not yet been secured, since, according to May, at least, nailing down the sheets was the very thing which plaintiff had climbed up to the ceiling to do. Defendant seems to be suggesting that this is therefore not a situation in which he should have expected that plaintiff would not have discovered or realized the danger or would have failed to protect himself against it. The problem with this argument is that the hazard posed by the Aspenite sheeting did not arise simply from the fact that some of the sheets were not nailed down. Defendant’s own deposition testimony indicates that the real danger arose from the fact that the unsecured boards were laid across joists which were placed at irregular intervals. The irregular spacing of the ceiling joists meant that too much of the end of the Aspenite sheeting was unsupported so that if one stepped on the unsupported edge, the sheet would flip over and one would fall through the joists. That is apparently exactly what happened to plaintiff here. Under these circumstances, we can scarcely agree with the circuit court’s conclusion that there was no genuine issue of material fact and that defendant was not guilty of negligence as a matter of law. The circuit court’s entry of summary judgment against plaintiff on count II of his complaint must therefore also be reversed.

For the foregoing reasons, the judgment of the circuit court of Saline County granting summary judgments in favor of defendant and against plaintiff on counts I and II of plaintiff’s complaint is reversed, and this cause is remanded for further proceedings consistent with this opinion. In light of this disposition, we need not reach plaintiff’s additional arguments that the circuit court erred in failing to strike defendant’s affidavit and in not allowing plaintiff to file a counteraffidavit before ruling on defendant’s motion for summary judgment.

Reversed and remanded.

WELCH and GOLDENHERSH, JJ., concur.