text:
    SYSCO FOOD SERVICE OF CHICAGO, Appellant, v. The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al.,
    (Michael Donohue, Appellee).
    No. 1-17-0435 WC
    Appellate Court of Illinois, First District, Workers' Compensation Commission Division.
    Opinion Filed: December 22, 2017
    Peter J. Stavropoulos, of Brady, Connolly & Masuda, P.C., of Chicago, for appellant.
    Amylee Hogan Simonovich, of Ridge & Downes, of Chicago, for appellees.
   JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 Sysco Food Services of Chicago (Sysco) appeals from an order of the circuit court of Cook County which reversed an October 24, 2012, decision of the Illinois Workers' Compensation Commission (Commission), awarding the claimant, Michael Donohue, inter alia , permanent partial disability benefits under section 8(d)2 of the Workers' Compensation Act (Act) ( 820 ILCS 305/8(d) 2 (West 2010)) for a torn meniscus in his left knee but denying the claimant benefits for the degenerative condition of his left knee, and remanded the matter back to the Commission with directions to award the claimant wage differential benefits under section 8(d)1 of the Act ( 820 ILCS 305/8(d) 1 (West 2010)). Sysco also appeals from the Commission's decisions following remand and the circuit court's orders entered following the Commission's decisions on remand. For the reasons which follow, we: reverse the circuit court's order of December 23, 2013, which reversed the Commission's original decision of October 24, 2012; vacate the Commission's decisions of October 28, 2014, and April 15, 2016, entered following remand from the circuit court; vacate the circuit court's orders of August 10, 2015, and February 16, 2017, entered following the Commission's decisions on remand; and reinstate the Commission's original decision of October 24, 2012.

¶ 2 The following factual recitation is taken from the evidence adduced at the arbitration hearing held on September 7, 2011, and November 4, 2011.

¶ 3 At all times relevant, the claimant was employed by Sysco as a delivery driver. His duties included delivering food products to customers by truck and unloading the products from the truck using a two-wheeled dolly and a ramp. The claimant testified that, on November 6, 2009, as he was maneuvering a load of food products inside of his truck, he fell out of the back of the truck and landed on both knees.

¶ 4 On November 12, 2009, the claimant sought medical treatment from Dr. Quinn Regan at the Illinois Bone and Joint institute. Following his examination of the claimant, Dr. Regan diagnosed left knee pain and contusions following a slip and fall.

¶ 5 After again examining the claimant on November 19, 2009, Dr. Regan recorded an impression of very mild joint line narrowing of the left knee, possibly meniscal pathology and possible left knee contusion. Dr. Regan administered a Cortisone shot to the claimant's left knee.

¶ 6 When Dr. Regan examined the claimant's left knee on December 7, 2009, he noted no effusion and a range of motion from 0 to 135 degrees. He again administered a Cortisone shot to the claimant's left knee and recommended that the claimant have an MRI scan of his left knee.

¶ 7 The claimant underwent the recommended MRI on December 28, 2009. The scan revealed bone marrow edema of the medial aspect of the femoral condyle and tibial plateau, consistent with a contusion; a tear at the posterior horn of the medial meniscus; small joint effusion ; and a soft tissue contusion at the medial aspect of the knee.

¶ 8 Dr. Regan's notes of a visit on January 4, 2010, state that he reviewed the MRI and diagnosed left knee pain and internal derangement, secondary to a meniscal tear and bone bruise. Dr. Regan recommended that the claimant have surgery to repair the meniscal tear.

¶ 9 On January 20, 2010, the claimant underwent surgery to repair the meniscal tear in his left knee. Dr. Regan's postoperative diagnosis was a medial meniscal tear in the posterior horn of the claimant's left knee with chondromalacia of the medial femoral condyle.

¶ 10 When he examined the claimant on January 28, 2010, Dr. Regan noted that the claimant's pain had improved and his surgical wound was progressing nicely. Dr. Regan recorded his intention to see the claimant in about three weeks with a view to returning him to work at that time.

¶ 11 According to the claimant, he remained off of work following surgery until he was given a full duty release by Dr. Regan. He returned to work at Sysco on February 22, 2010.

¶ 12 On March 29, 2010, the claimant presented to Dr. Regan complaining of significant pain in his left knee. On examination, Dr. Regan noted swelling of the claimant's left knee "2+ effusion" and flexion to 90 degrees. Dr. Regan aspirated the claimant's left knee and administered a Celestone shot. As of that visit, Dr. Regan noted his impression of "status post knee arthroscopy with an effusion for overuse" and authorized the claimant to remain off of work.

¶ 13 When the claimant saw Dr. Regan on April 1, 2010, he reported a flare-up of his left knee symptoms after twisting his knee a week earlier. Dr. Regan recommended that the claimant remain off of work.

¶ 14 When the claimant saw Dr. Regan on April 12, 2010, he complained of left knee pain. On examination of the claimant's left knee, Dr. Regan found no erythema, no redness, no numbness, no effusion, and a range of motion from 0 to 90 degrees. In his notes of that visit, Dr. Regan wrote: "I don't think he can go back to work as a truck driver."

¶ 15 The claimant returned to see Dr. Regan on May 13, 2010, complaining of persistent pain along the medial aspect of his left knee. On examination, Dr. Regan noted no effusion, a range of motion from 0 to 135 degrees, negative Lachman's and anterior drawer, a touch of an Apley grinding test along the medial aspect, and a normal gait. The doctor again noted that the claimant re-twisted his left knee after surgery. Dr. Regan's notes contain his impression that the claimant's ongoing symptoms could be the result of a bone bruise or an aggravation of chondromalacia in the medial femoral condyle. Dr. Regan recommended an MRI and again wrote: "I don't think he can go back to work as a truck driver."

¶ 16 The report of the claimant's second MRI did not reveal a new meniscus tear, but did show a small Baker's cyst. According to Dr. Regan's notes from June 17, 2010, the MRI showed that the claimant's bone edema had resolved; however, the claimant was still experiencing pain and dysfunction. The claimant underwent a series of Orthovisc injections on the recommendation of Dr. Regan.

¶ 17 When the claimant saw Dr. Regan on July 22, 2010, he complained of pain along the medial aspect of his left knee. On examination, Dr. Regan noted no effusion, full range of motion from 0 to 135 degrees, negative Lachman's and anterior drawer, a touch of an Apley grinding test along the medial aspect, and a normal gait. According to the doctor's notes: "[the claimant] needs to go back to work." Dr. Regan recommended that the claimant wear a knee brace while working.

¶ 18 On July 31, 2010, the claimant was examined by Dr. Kevin Walsh at the request of Sysco. In his report dated that same day, Dr. Walsh opined that the claimant was able to return to work without restrictions as a result of his work-related injury. Dr. Walsh noted that the claimant had a degenerative condition of the knees which was not caused by, aggravated or accelerated by his work accident.

¶ 19 On August 5, 2010, Dr. Regan released the claimant to return to work at his regular job with a knee brace. According to the notes of that visit, the claimant felt that he was ready to go back to work.

¶ 20 The claimant returned to work on August 16, 2010, and worked a 11½ hour shift. The claimant testified that, at the end of the day, he complained to Rick Leonard, Sysco's safety and security director, that his knee was causing him pain. When the claimant returned to work the following day, he complained of pain and swelling in his left knee. According to the claimant, when he finished training at approximately 7:30 a.m. he was told to report to Debbie Valleskey, Sysco's nurse. However, before he was able to see Valleskey, Leonard told him to go home. Leonard testified that he had been advised that the claimant had been complaining about his knees. Leonard denied that the claimant made any complaints of knee pain to him. He stated that he made the decision to send the claimant home after conferring with his boss, Bill O'Meara. According to Leonard, in performing his job driving a stick-shift truck, the claimant's knee could give out, causing an accident. Leonard was also concerned that the claimant might injure himself or others going up or down stairs with a two-wheel dolly.

¶ 21 The claimant testified that he received a phone call from Valleskey in the afternoon of August 17, 2010, advising him that he could not return to work due to the condition of his left knee. Valleskey testified that the decision to send the claimant home was made by Leonard and O'Meara. She stated that she was instructed to arrange a "Fit for Duty Test" for the claimant.

¶ 22 When the claimant saw Dr. Regan on September 3, 2010, the doctor noted that the claimant could try to go back to work doing his regular job. On examination, the doctor noted no effusion, a range of motion greater than 135 degrees of flexion, negative Lachman's and anterior drawer, and a normal gait.

¶ 23 The claimant underwent a "Fit for Duty Test" on September 15, 2010. The report of that test states that he was capable of performing dynamic lifts and job specific tasks, but that he has physical limitations which may affect his ability to perform successfully over an entire shift. According to the report, the claimant may need to be transitioned to a full work day or tested for performing job specific tasks for a full day to determine safe functional endurance.

¶ 24 On November 18, 2010, the claimant returned to see Dr. Regan and reported improvement in his left knee symptoms. As of that date, Dr. Regan found that the claimant could function at a reasonable level and could return to his regular duties as a truck driver.

¶ 25 At the request of Sysco, the claimant was examined by Dr. Walsh for a second time on November 23, 2010. In his report of that examination, Dr. Walsh opined that the claimant did not require work restrictions as a result of his work accident, but it would be reasonable to restrict him from work as a truck driver due to his degenerative knee condition which is unrelated to his work accident.

¶ 26 Sysco did not allow the claimant to return to work as a delivery truck driver, and as a consequence, he filed a grievance with his union, Teamsters Local 710. Charles DeCola, the Business Agent for Local 710, testified that he prepared the grievance for the claimant. According to DeCola, in all of his discussions with Sysco representatives, he was told that the claimant could not return to his duties as a delivery truck driver because of the injuries he sustained while working.

¶ 27 On January 14, 2011, the claimant was summoned to a meeting at Sysco's Human Resource Department. Present at the meeting were Dan Pasquale, the claimant's union steward, and Lee Gersch, Sysco's Human Resource Director. At that meeting, the claimant was given a letter dated January 5, 2011, drafted by Gersch which states "as a result of your work related injuries * * * you are not qualified to perform the essential functions of the Delivery Driver position." However, during the arbitration hearing, Gersch stated that she made a mistake in the wording of the letter and that the claimant could not return to work as a delivery driver due to his personal medical condition, not because of a work-related injury. The claimant testified that Gersch offered him a position as a security guard and told him that, if he did not accept that position, his employment would be terminated. According to the claimant, he accepted the position as a security guard, but wrote on the letter he received that he was not waiving his rights under the union grievance. Gersch admitted that the only alternative positions which she could recall Sysco offering were to employees who had sustained work related injuries.

¶ 28 The claimant returned to work at Sysco as a security guard on January 16, 2011. He is required to work 50 hours per week at the rate of $20 per hour for the first 40 hours and $30 per hour for the remaining hours.

¶ 29 At the request of the claimant's attorneys, Dr. Regan authored a letter dated June 7, 2011, in which he stated that the symptoms for which he treated the claimant were the result of some underlying chondromalacia of the medial femoral condyle with a significant bone bruise. According to the letter, the bone bruise is the result of a direct trauma, and not degenerative in nature. Dr. Regan was also of the opinion that the meniscal tear in the claimant's left knee "was probably the result of the jump off the truck[,]" and required surgical intervention. Dr. Regan went on to state: "I believe that the accident caused the meniscal pathology, bone bruise, and probably aggravated a pre-existing chondromalacia." As to whether the claimant's degenerative condition is causally related to his work injury, Dr. Regan wrote: "whether or not degeneration is related to the aging process or [an accident] on the job, I have a more difficult time saying one verses the other. It is easy for me to say the meniscal tear and bone bruise have relationship to the job accident."

¶ 30 During the arbitration hearing on September 7, 2011, the claimant testified that his knee is "as good as it was before the operation. I have no problems with it." He stated that he is pain free and his left knee has not caused him to do anything any less or differently than he did prior to his work accident. During the arbitration hearing on November 4, 2011, the claimant admitted: "I have no restrictions on me from any doctor."

¶ 31 Following a hearing, the arbitrator found that the claimant sustained injuries to his left knee, consisting of a torn meniscus, which arose out of and in the course of his employment with Sysco on November 6, 2008. However, the arbitrator found that the then current degenerative condition of the claimant's left knee was not causally related to his work accident. The arbitrator fixed the claimant's average weekly wage at $1592.03 and awarded him 413/7 weeks of temporary total disability (TTD) benefits under section 8(b) of the Act ( 820 ILCS 305/8(b) (West 2010)) at the rate of $1,061.35 per week for the periods from November 12, 2009, through November 22, 2009; January 4, 2010, through February 22, 2010; May 13, 2010, through August 16, 2010; and August 18, 2010, through January 4, 2011. The arbitrator granted Sysco a credit of $34,827.33 for TTD benefits paid to the claimant. In addition, the arbitrator ordered Sysco to pay $7242.86 for reasonable and necessary medical expenses incurred by the claimant. Finding that the claimant suffered a 30% loss of use of his left leg as the result of his work accident, the arbitrator awarded the claimant 64½ weeks of permanent partial disability benefits at the rate of $664.72 per week pursuant to section 8(d)2 of the Act ( 820 ILCS 305/8(d) 2 (West 2010)). Finally, the arbitrator denied the claimant's petition for penalties under sections 19(k) and 19(l ) of the Act ( 820 ILCS 305/19(k), (l ) (West 2010)), and attorney fees under section 16 of the Act ( 820 ILCS 305/16 (West 2010) ).

¶ 32 Both Sysco and the claimant sought a review of the arbitrator's decision before the Commission. In a unanimous decision entered on October 24, 2012, the Commission affirmed and adopted the arbitrator's decision.

¶ 33 The claimant sought judicial review of the Commission's decision in the circuit court of Cook County. On December 23, 2013, the circuit court, Judge Lopez Cepero, reversed the Commission's determination that the degenerative condition of the claimant's left knee is not causally related to his work injury, finding that the Commission's determination in this regard is against the manifest weight of the evidence. According to Judge Lopez Cepero's order, contrary to the Commission's decision, the claimant's treating doctor, Dr. Regan, was not silent on the issue of a causal relationship between the degenerative condition of the claimant's left knee and his work accident. In his letter of June 7, 2011, Dr. Regan stated that the claimant's work accident "probably aggravated a pre-existing chondromalacia." Judge Lopez Cepero concluded that, because the Commission had not noted Dr. Regan's letter, it ignored it, suggesting that the Commission was "determined to reach a particular outcome." Judge Lopez Cepero remanded the matter back to the Commission "for the sole purpose of calculating * * * [the claimant's] wage differential award" under section 8(d)1 of the Act ( 820 ILCS 305/8(d) 1 (West 2010)).

¶ 34 On remand, the Commission issued a decision on October 28, 2014, in which it specifically stated that, in arriving at its original decision, it had "noted, reviewed, considered, analyzed, and weighed" Dr. Regan's letter. The Commission referenced that portion of the letter which states that in terms of commenting on "whether or not degeneration is related to the aging process or [an accident] on the job, I have a more difficult time saying one verses the other. It is easy for me to say the meniscal tear and bone bruise have relationship to the job accident." According to the Commission, these statements did not establish Dr. Regan's belief that a causal nexus exists between the claimant's work accident and the degenerative condition in his left knee. Nevertheless, in compliance with the circuit court's December 23, 2013, order, the Commission found that the degenerative condition of the claimant's left knee is causally related to his work accident and awarded him a wage differential of $394.68 per week, commencing on January 16, 2012.

¶ 35 Both Sysco and the claimant sought a judicial review of the Commission's October 28, 2014, decision in the circuit court. The claimant argued that the Commission incorrectly calculated the wage differential award. Sysco argued both that the Commission's finding of a causal connection between the degenerative condition of the claimant's left knee and his work accident and its award of wage differential benefits are against the manifest weight of the evidence.

¶ 36 On August 10, 2015, the circuit court, Judge James McGing, reversed the Commission's decision of October 28, 2014, finding that the Commission had miscalculated the claimant's wage differential award, and remanded the matter back to the Commission with directions to explain its calculation of the claimant's average weekly wage, explain its calculation of the claimant's earning capacity as of November 4, 2011, and recalculate the claimant's wage differential award.

¶ 37 On April 15, 2016, the Commission issued its decision on remand, again noting that, based upon the circuit court's order of December 23, 2013, it was required to find a causal connection between the degenerative condition of the claimant's left knee and his work accident and award the claimant wage differential benefits. As directed, the Commission explained its calculation of the claimant's average weekly wage on November 6, 2009, of $1592.03, and its calculation of the claimants earning capacity as of November 4, 2011, of $1621.80 per week. The Commission fixed the claimant's wage differential award at $347.51, commencing on January 16, 2011.

¶ 38 Both the claimant and Sysco sought a judicial review of the Commission's decision of April 15, 2016, in the circuit court. On February 16, 2017, the circuit court (Judge McGing) issued an order confirming the Commission's decision. On March 10, 2017, Sysco filed its notice of appeal.

¶ 39 Sysco first argues that the circuit court erred in reversing the Commission's decision of October 24, 2012. Specifically, it argues that, contrary to the circuit court's finding in its order of December 23, 2013, the Commission's determination in its original decision that there is no causal connection between the degenerative condition of the claimant's left knee and his work accident is not against the manifest weight of the evidence. It also argues that the claimant is not entitled to a wage differential award based upon his admission that he is under no work restrictions and is able to return to work as a truck driver. We agree with both arguments.

¶ 40 When, as in this case, the circuit court reverses the Commission's decision and the Commission, in compliance, issues a new decision on remand, this court's first inquiry on appeal from the circuit court's order confirming the Commission's decision on remand is, whether the circuit court erred in reversing the original decision. Vogel v. Industrial Comm'n , 354 Ill. App. 3d 780, 785-86, 290 Ill.Dec. 495, 821 N.E.2d 807 (2005).

¶ 41 To obtain compensation under the Act, a claimant has the burden of proving, by a preponderance of the evidence, all of the elements of his claim ( O'Dette v. Industrial Comm'n , 79 Ill. 2d 249, 253, 38 Ill.Dec. 133, 403 N.E.2d 221 (1980) ), including a causal relationship between his work accident and his condition of ill being ( Caterpillar Tractor Co. v. Industrial Comm'n , 129 Ill. 2d 52, 58, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989) ). Whether a causal connection exists between a claimant work-related accident and his condition of ill being is a question of fact to be resolved by the Commission. Certi-Serve Inc. v. Industrial Comm'n , 101 Ill. 2d 236, 244, 78 Ill.Dec. 120, 461 N.E.2d 954 (1984). Whether a claimant's condition of ill being is attributable solely to a degenerative process of a preexisting condition or to an aggravation or acceleration of that preexisting condition caused by a work-related accident is a factual determination to be made by the Commission. Sisbro, Inc. v. Industrial Comm'n , 207 Ill. 2d 193, 204-05, 278 Ill.Dec. 70, 797 N.E.2d 665 (2003).

¶ 42 The Commission's finding on a question of fact will not be disturbed on review unless it is against the manifest weight of the evidence. Orsini v. Industrial Comm'n , 117 Ill. 2d 38, 44, 109 Ill.Dec. 166, 509 N.E.2d 1005 (1987). For a factual finding made by the Commission to be against the manifest weight of the evidence, an opposite conclusion must be clearly apparent. City of Springfield v. Illinois Workers' Compensation Comm'n , 388 Ill. App. 3d 297, 315, 327 Ill.Dec. 333, 901 N.E.2d 1066 (2009). Whether a reviewing court might have reached the same conclusion is not the test for determining whether the Commission's finding is against the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the Commission's decision. Benson v. Industrial Comm'n , 91 Ill. 2d 445, 450, 64 Ill.Dec. 538, 440 N.E.2d 90 (1982).

¶ 43 In its original decision, the Commission affirmed and adopted the arbitrator's decision in its entirety. Based in large part on the opinions of Dr. Walsh, the Commission found that the permanent injury causally related to the claimant's work injury is the torn meniscus surgically repaired by Dr. Regan on January 20, 2010. However, according to the decision, there is no evidence to support a finding that the degenerative condition of the claimant's left knee is causally related to his work injury. In reversing the Commission's original decision, the circuit court (Judge Lopez Cepero), found that the Commission's causation determination relating to the degenerative condition is belied by the statement in Dr. Regan's June 7, 2011, letter that the claimant's work accident "probably aggravated a pre-existing chondromalacia." The circuit court concluded that the Commission ignored Dr. Regan's letter, suggesting that the Commission was "determined to reach a particular outcome." After concluding that the Commission had ignored Dr. Regan's letter, the circuit court found that the Commission's determination that the degenerative condition in the claimant's left knee is not causally connected to his work accident is against the manifest weight of the evidence. However, in its October 28, 2014, decision on remand from the circuit court, the Commission specifically stated that, in arriving at its original decision, it had "noted, reviewed, considered, analyzed, and weighed" Dr. Regan's letter. The Commission referenced that portion of the letter which states that, in terms of commenting on "whether or not degeneration is related to the aging process or [an accident] on the job, I have a more difficult time saying one verses the other. It is easy for me to say the meniscal tear and bone bruise have relationship to the job accident." According to the Commission, these statements did not establish Dr. Regan's belief that a causal nexus exists between the claimant's work accident and the degenerative condition in his left knee.

¶ 44 Both Dr. Regan's records and Dr. Walsh's opinion establish that the claimant suffers from a degenerative condition in his left knee, and the claimant correctly asserts that causation may be based upon a medical expert's opinion that a work accident could or might have caused a condition of ill-being. See Consolidation Coal Co. v. Industrial Comm'n , 265 Ill. App. 3d 830, 839, 203 Ill.Dec. 327, 639 N.E.2d 886 (1994). However, the weight, if any, to be given to such an expert's opinion is a matter for the Commission to decide ( O'Dette , 79 Ill. 2d at 253, 38 Ill.Dec. 133, 403 N.E.2d 221 ), not the circuit court. It is clear from the Commission's decision of October 28, 2014, that, in arriving at its original decision, it considered Dr. Regan's letter of June 7, 2011, but accorded no weight to his statement that the claimant's work accident "probably aggravated a pre-existing chondromalacia." We do not believe that the Commission's failure to make note of the letter in its original decision, standing alone, supports the circuit court's conclusion that the Commission ignored the letter. Nor do we believe that the content of Dr. Regan's letter justified the circuit court in concluding that the Commission's finding that the degenerative condition of the claimant's left knee is not causally related to his work injury is against the manifest weight of the evidence, especially in light of Dr. Walsh's opinion on causation and the claimant's own testimony that his knee "is as good as it was before the operation." In concluding that the causation determination relating to the claimant's degenerative condition contained in the Commission's original decision is against the manifest weight of the evidence, the circuit court impermissibly reweighed the evidence and usurped the Commission's fact-finding function.

¶ 45 In addition to substituting its judgment for that of the Commission on the issue of causation, the circuit court (Judge Lopez Cepero), not only reversed the Commission's original decision, it remanded the matter back to the Commission with directions to award the claimant wage differential benefits under section 8(d)1 of the Act. Sysco argues that, by his own admissions, the claimant is not entitled to a wage differential award. We agree.

¶ 46 The claimant acknowledges in his brief that he is not medically restricted from pursuing his usual and customary line of employment as a truck driver and was willing and able to return to work. Nevertheless, he argues that, despite his full duty release, Sysco's refusal to allow him to return to work as a delivery driver based on its belief that he is physically unfit which renders him partially incapacitated from pursuing his usual and customary line of employment, and entitles him to wage differential benefits as ordered by the circuit court in its December 23, 2013, order. We find no merit in the argument.

¶ 47 Section 8(d)1 of the Act provides that an injured employee is entitled to wage differential benefits if, "as a result" of a work related "accidental injury[,]" he becomes partially incapacitated from pursuing his usual and customary line of employment. 820 ILCS 305/8(d) 1 (West 2010). The claimant does not assert that he is partially incapacitated from pursuing his usual and customary line of employment by reason of an injury; rather, he contends that he is entitled to a wage differential due to Sysco's refusal to allow him to return to work as a delivery driver. He admits that he is not medically restricted from working as a delivery driver and was willing and able to return to work in that capacity. Based upon his own admissions, the claimant was not entitled to a wage differential award under section 8(d)1 of the Act.

¶ 48 In reversing the Commission's decision of October 24, 2012, and ordering the Commission to award the claimant wage differential benefits, the circuit court found "that there is no language in [s]ection 8(d)1 that requires a claimant to be medically incapacitated to receive a wage differential award." (Emphasis added.) Relying upon evidence that Sysco declined to allow the claimant to return to work as a delivery driver due to his work-related injuries and thereafter offered him a position as a security guard, the circuit court concluded that the claimant was incapacitated from pursuing his usual and customary line of employment, and is entitled to a wage differential award. The flaw in the circuit court's reasoning was its failure to recognize that, in order to qualify for a wage differential, the claimant must be partially incapacitated from pursuing his usual and customary line of employment "as a result" of an injury, not based on the reasons articulated by his employer for not restoring him to his pre-accident position.

¶ 49 Clearly, the reasons given by an employer for not restoring an injured employee to his pre-accident position may be relevant to the question of whether the employee is incapacitated from pursuing his usual and customary line of employment in a case where the employee's physical ability to return to his usual line of work is a disputed issue. This is not such a case. The claimant admitted that he is ready, willing, and able to return to work as a truck driver, and his treating physician authorized him to return to work without restrictions.

¶ 50 The extent of an injured employee's disability is a question of fact for the Commission to determine ( Oscar Mayer & Co. v. Industrial Comm'n , 79 Ill. 2d 254, 256, 37 Ill.Dec. 605, 402 N.E.2d 607 (1980) ) as is the issue of whether the employee is partially incapacitated from pursuing his usual and customary line of employment ( Morton's of Chicago v. Industrial Comm'n , 366 Ill. App. 3d 1056, 1061, 304 Ill.Dec. 508, 853 N.E.2d 40 (2006) ). Simply stated, the evidence in the record before us supports the conclusion that the claimant is not partially incapacitated from pursuing his usual and customary line of employment "as a result" of a work related "accidental injury."

¶ 51 Based upon the foregoing analysis, we conclude that, in reversing the Commission's original decision of October 24, 2012, the circuit court both impermissibly reweighed evidence and misapplied section 8(d)1 of the Act.

¶ 52 Lastly, we find need to comment on a gratuitous statement made by Judge Lopez Cepero in his order of December 23, 2012; a comment with which the Commission justly took umbrage. Judge Lopez Cepero wrote that, "any reasonable trier of fact" would have noted Dr. Regan's letter of June 7, 2011, and weighed it accordingly, and "[t]he fact that the Commission ignored it suggests that they were determined to reach a particular out come." First, the fact that the Commission did not mention the letter in its original decision does not support the conclusion that it ignored the letter. Second, whether or not one agrees with the Commission's causation determination, there was simply no justification for accusing the Commission of being determined to reach a particular outcome in this case, especially in light of the fact that the evidence contained in the record supports the Commission's original causation determination. The accusation is not only without support in the record, it is injudicious.

¶ 53 In summary, we conclude that: (1) the circuit court (Judge Lopez Cepero), usurped the fact-finding function of the Commission in reversing its original decision of October 24, 2012; (2) the record contains sufficient evidence to support the determination in the Commission's original decision that the degenerative condition of the claimant's left knee is not causally related to his work accident of November 6, 2009; (3) the claimant was not entitled to a wage differential under section 8(d)1 of the Act; and (4) the Commission's original decision is not against the manifest weight of the evidence.

¶ 54 Based upon the foregoing analysis, we: reverse the circuit court's order of December 23, 2013; vacate the Commission's decisions of October 28, 2014, and April 15, 2016; vacate the circuit court's orders of August 10, 2015, and February 16, 2017; and reinstate the Commission's original decision of October 24, 2012.

¶ 55 Judgment of the circuit court of December 23, 2013, reversed; judgment of the circuit court of August 10, 2015, and February 16, 2017, vacated; Commission's decisions of October 28, 2014, and April 15, 2016, vacated; and Commission's original award of October 24, 2012, reinstated.

Presiding Justice Holdridge and Justices Hudson, Harris, and Overstreet concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The ROBERT R. MCCORMICK FOUNDATION and the Cantigny Foundation, Plaintiffs-Appellants, v. ARTHUR J. GALLAGHER RISK MANAGEMENT SERVICES, INC., Defendant-Appellee.
    No. 2-17-0939 & No. 2-17-0940
    Appellate Court of Illinois, Second District.
    Opinion filed July 20, 2018
    John R. McCambridge, David E. Schoenfeld, and Matthew C. Wolfe, of Shook, Hardy & Bacon L.L.P., of Chicago, for appellants.
    John C. Ellis, of Ellis Legal P.C., and Richard J. Prendergast and Michael T. Layden, of Richard J. Prendergast, Ltd., both of Chicago, for appellee.
   JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 These consolidated interlocutory appeals are a sequel to an appeal we decided over two years ago, Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc. , 2016 IL App (2d) 150303, 402 Ill.Dec. 728, 52 N.E.3d 649 ( Foundations I ). In these appeals, however, we consider the scope of attorney-client privilege and whether the trial court should have granted a renewed request for a stay.

¶ 2 Plaintiffs, the Robert R. McCormick Foundation and the Cantigny Foundation (the Foundations) sued their former insurance broker, Arthur J. Gallagher Risk Management Services, Inc. (Gallagher). The Foundations were formerly the second largest shareholder group in the Tribune Company (Tribune), a large multimedia corporation. The Foundations sold their preferred stock for some $2 billion during a leveraged buyout (LBO) of the company in 2007. Less than one year after the transaction, Tribune filed for bankruptcy protection. The buyout itself, as we noted in Foundations I , left many Tribune creditors "holding the proverbial bag." Id. ¶ 3.

¶ 3 After the LBO, in 2009, the Foundations hired Gallagher to procure for them directors' and officers' (D & O) liability insurance. Gallagher obtained $25 million in D & O coverage for the Foundations through (what was essentially) a single policy with Chubb Insurance (Chubb). The Foundations allege that in 2010 Gallagher advised that they could obtain the same coverage-"apples-to-apples"-at a reduced premium with (what was essentially) a $25 million policy from Chartis Insurance (Chartis). The Foundations purchased the Chartis policy and let the Chubb policy lapse.

¶ 4 Soon after Tribune exited bankruptcy in 2011 (see In re Tribune Co. , 464 B.R. 126 (Bankr. D. Del. 2011) ), aggrieved shareholders filed a number of federal suits across the country against more than 5000 defendants; the suits were eventually consolidated in the Southern District of New York. See In re Tribune Co. Fraudulent Conveyance Litigation , 831 F.Supp.2d 1371 (J.P.M.L. 2011). The Foundations were named as defendants in three of the suits (which remain ongoing, as we discuss below). These suits generally allege that the Foundations-through their directors and officers, and acting in concert with other "controlling shareholders"-orchestrated the LBO through actual and constructive fraud. Accordingly, the suits seek to unwind the LBO and to claw back creditors' funds.

¶ 5 Relevant here, when the Foundations tendered the suits (the LBO litigation) to Chartis under their D & O policy, Chartis denied coverage under a policy exclusion for claims "in any way relating to any purchase or sale of securities." The Foundations, asserting that Chubb would have defended and indemnified them under their former policy, sued Gallagher for breach of contract and professional negligence resulting in a loss of coverage. On Gallagher's motion for summary judgment, the trial court determined that an exclusion in the Chubb policy, too, would have barred coverage for the LBO litigation. In Foundations I , we held that the Chubb exclusion in question did not necessarily bar coverage, and we reversed the court's judgment. On remand, Gallagher tendered several affirmative defenses and the parties proceeded with discovery.

¶ 6 During discovery, Gallagher subpoenaed the Foundations and their legal counsel for, among other things, the following:

"1. Any reports or opinion letters prepared for * * * the Foundations * * * relating to the Tribune Co. or the LBO.
2. Any and all communications related to the Foundations' Director[s'] and Officers['] insurance policy or coverage.
3. Any and all communications with the Foundations related to the Tribune Bankruptcy.
4. Any and all communications with the Foundations related to the LBO Litigation."

The Foundations indicated that there were documents and electronic communications responsive to Gallagher's request (and filing a roughly 40-page privilege log (see Ill. S. Ct. R. 201(n) (eff. July 1, 2014) ) but refused to tender them, citing attorney-client privilege. The Foundations then asked the court to quash the subpoenas or, in the alternative, "stay or phase" the case until the completion of the LBO litigation. Gallagher, in turn, sought an order to compel production and opposed the Foundations' stay request.

¶ 7 After a hearing, the trial court denied the Foundations' request for a stay and ordered the Foundations to tender the requested materials. Specifically, the court noted that by suing Gallagher the Foundations had aligned Gallagher's interest with their own in the underlying litigation-that is, that Gallagher "may bear the ultimate burden of payment of the underlying claims and defense costs." Accordingly, under an exception to the attorney-client privilege, which was set forth by our supreme court in Waste Management, Inc. v. International Surplus Lines Insurance Co. , 144 Ill.2d 178, 190, 161 Ill.Dec. 774, 579 N.E.2d 322 (1991), the court found that the Foundations must tender the requested materials. The court also stated, however, that it would be willing to consider a protective order limiting Gallagher's use of any disclosure. As to the Foundations' request for a stay, the court noted that it had denied a similar request in April 2014, and it once again declined to issue a stay.

¶ 8 The Foundations appealed the trial court's denial of the stay (No. 2-17-0940). The Foundations also sought to test the trial court's discovery ruling and, in a separate order, were held in "friendly contempt," which they also appeal (No. 2-17-0939). We have jurisdiction over both matters ( Ill. S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016); R. 307(a)(1) (eff. Nov. 1, 2017) ), which we have consolidated at the parties' request. Now, with some modifications, we affirm the judgment of the trial court.

¶ 9 We turn first to the trial court's contempt finding, under which we review the propriety of the underlying discovery order. See Norskog v. Pfiel , 197 Ill.2d 60, 69, 257 Ill.Dec. 899, 755 N.E.2d 1 (2001). The attorney-client privilege, of course, protects the confidences communicated between attorney and client. But that privilege, as with so many legal concepts, is not without its exceptions. Indeed, Illinois has "a strong policy of encouraging disclosure," and thus "the privilege, not the duty to disclose, * * * is the exception." Waste Management , 144 Ill.2d at 190, 161 Ill.Dec. 774, 579 N.E.2d 322. Accordingly, our task is to construe the privilege "within its narrowest possible limits." Id. We review de novo questions concerning the application of and exceptions to the privilege. Center Partners, Ltd. v. Growth Head GP, LLC , 2012 IL 113107, ¶ 65, 367 Ill.Dec. 20, 981 N.E.2d 345.

¶ 10 In Waste Management , 144 Ill.2d 178, 161 Ill.Dec. 774, 579 N.E.2d 322, our supreme court discussed two exceptions to the attorney-client privilege. The first exception relied on a "cooperation clause" in an insurance contract in that case. Id. at 192, 161 Ill.Dec. 774, 579 N.E.2d 322. Here, the parties agree that there was no cooperation clause in the Foundations' brokerage contract with Gallagher, so the first Waste Management exception is irrelevant. See, e.g. , Western States Insurance Co. v. O'Hara , 357 Ill.App.3d 509, 516, 293 Ill.Dec. 532, 828 N.E.2d 842 (2005).

¶ 11 The second Waste Management exception, however, does apply. Finding this exception "equally compelling," our supreme court held that, under the common-interest doctrine, the attorney-client privilege did not bar discovery of communications or documents, created in defense of two previously settled lawsuits, in a subsequent coverage dispute regarding one of those suits. See Waste Management , 144 Ill.2d at 193, 161 Ill.Dec. 774, 579 N.E.2d 322. Such materials are, in essence, deemed to have been prepared for the benefit of both parties, as the suit has joined their interests. See id. As our supreme court explained, the common-interest doctrine has its roots in the dual-representation doctrine-i.e. , where one lawyer represents two joined parties, such as two criminal codefendants-which is a historical exception to the attorney-client privilege. See id. at 193-94, 161 Ill.Dec. 774, 579 N.E.2d 322. However, the court made clear that this exception to the attorney-client privilege "may properly be applied where the attorney, though neither retained by nor in direct communication with the insurer, acts for the mutual benefit of both [parties]"; this is true regardless of whether the parties retained the same lawyer or even had joined interests at the time of the communication. Id. at 194, 161 Ill.Dec. 774, 579 N.E.2d 322. As the court recognized, this situation is, of course, likely to arise in coverage litigation between insurers and insureds, but it is by no means limited to that context. Id. at 193, 161 Ill.Dec. 774, 579 N.E.2d 322. Instead, the exception depends not on the nature of the parties but on the "commonality of interests" between them, or who might be "ultimately liable for payment if the plaintiffs in the underlying action received either a favorable verdict or settlement." Id. at 194-95, 161 Ill.Dec. 774, 579 N.E.2d 322.

¶ 12 The common-interest exception also has its limits. For example, while it might be said that the parties have a common interest in defeating the underlying litigation, and thus are entitled to discovery concerning that litigation, the same cannot be said for coverage matters. On the question of coverage, the parties are diametrically opposed, and so the common-interest rationale does not apply to attorney-client communications concerning coverage. Id. at 200-01, 161 Ill.Dec. 774, 579 N.E.2d 322 ; see also id. at 209, 161 Ill.Dec. 774, 579 N.E.2d 322 ("[w]hile the parties are now adverse concerning the issue of coverage, no such adversity exists as to the underlying litigation").

¶ 13 Here, the Foundations' core argument is that the Waste Management common-interest doctrine should not apply to this broker-malpractice lawsuit. In support of that argument, the Foundations recite our observation that other jurisdictions have criticized Waste Management . See generally Allianz Insurance Co. v. Guidant Corp. , 373 Ill.App.3d 652, 664-66, 312 Ill.Dec. 51, 869 N.E.2d 1042 (2007) (collecting cases). Accordingly, the Foundations urge us to apply Waste Management "cautiously" and not to "expand" its holding to discovery in broker-malpractice litigation.

¶ 14 While it is true that this court and others have been critical of Waste Management (see id. ), we acknowledge today that our criticism might have been unfair and ultimately unwarranted. While not every jurisdiction adheres to the precise contours of a rule like the one set forth in Waste Management , every federal circuit and 46 states recognize at least some form of the common-interest exception to the attorney-client privilege in discovery.

See generally Nell Neary, Last Man Standing: Kansas's Failure to Recognize the Common Interest Doctrine , 65 U. Kan. L. Rev. 795 (2017) (collecting cases, statutes, and court rules; arguing that Kansas's failure to recognize the doctrine harms its interests); see also United States v. McPartlin , 595 F.2d 1321, 1336 (7th Cir. 1979). Some jurisdictions even recognize a more expansive variation of the doctrine, one that applies not just to litigants in pending suits but also to potential litigants. See Selby v. O'Dea , 2017 IL App (1st) 151572, ¶ 39, 418 Ill.Dec. 655, 90 N.E.3d 1144 (citing In re LTV Securities Litigation , 89 F.R.D. 595 (N.D. Tex. 1981) ). And, as noted, the doctrine is not limited to the context of the insured-insurer relationship. In fact, the doctrine arises just as often in the contexts of patent law, mergers and acquisitions, and antitrust litigation (see id. ; see also Neary, supra at 797-98 ; 1 Edna Selan Epstein, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE , 277 (5th ed. 2007) )-areas of the law that have little to do with insurance coverage. It appears that our criticism in Allianz might be attributable to a simple problem of nomenclature; as one scholar points out, courts use some two dozen different terms to refer to essentially the same thing: the common-interest doctrine. See George S. Mahaffey Jr., Taking Aim at the Hydra: Why the "Allied-Party Doctrine" Should Not Apply in Qui Tam Cases When the Government Declines to Intervene , 23 Rev. Litig. 629 (2004). In short, our criticism of Waste Management focused narrowly on that decision and failed to recognize that the concepts underlying that decision have received near-universal acceptance. Accordingly, our criticism of Waste Management should not be considered persuasive.

¶ 15 Turning back to the matter at hand, we reject the Foundations' argument that Waste Management does not apply to this case. Illinois courts have recognized that, although the dispute in Waste Management arose from an insured-insurer relationship, "parties do not have to match the classic profile of an insurer and insured for the concepts in Waste Management, Inc. to apply." BorgWarner, Inc. v. Kuhlman Electric Corp. , 2014 IL App (1st) 131824, ¶ 33, 387 Ill.Dec. 819, 23 N.E.3d 511 (citing Hartz Construction Co. v. Village of Western Springs , 2012 IL App (1st) 103108, ¶ 30, 358 Ill.Dec. 680, 965 N.E.2d 1159 ). We also reject the Foundations' argument that they have no mutual interest with Gallagher in the LBO litigation. This case involves a professional-negligence suit against an insurance broker for the alleged loss of $25 million in defense and indemnity coverage under a D & O policy. As we said in Foundations I , Gallagher "stands in the insurer's shoes for the purpose of this malpractice action" precisely because the Foundations sued Gallagher for (the alleged loss of) coverage. See Foundations I , 2016 IL App (2d) 150303, ¶ 6, 402 Ill.Dec. 728, 52 N.E.3d 649 (and cases cited therein); see also Skaperdas v. Country Casualty Insurance Co. , 2015 IL 117021, ¶ 35, 390 Ill.Dec. 94, 28 N.E.3d 747 (discussing duty insurance broker owes to insured). In short, by suing Gallagher, the Foundations have given Gallagher a stake in the LBO litigation. Were Gallagher an insurance company, the Foundations could not deny it discovery on the ground of the attorney-client privilege per Waste Management . And, if the Foundations are successful in this suit, that is what Gallagher would be in a sense: a de facto insurer, liable to the Foundations for both the Foundations' liability to the LBO plaintiffs and the Foundations' defense costs in the LBO litigation. Accordingly, because Gallagher might be "ultimately liable" in the LBO litigation (see Waste Management , 144 Ill.2d at 193, 161 Ill.Dec. 774, 579 N.E.2d 322 ), we find that a commonality of interests exists between the Foundations and Gallagher.

¶ 16 We also reject the Foundations' argument that Gallagher's interests are somehow lessened by the fact that the Foundations might have already spent some $25 million in defense of the LBO litigation, which is now entering its eighth year. The mere fact that the Foundations might have already spent money they hope to assign to Gallagher as costs does not extinguish Gallagher's right to examine what it is being asked to pay for. We note that, in Waste Management , our supreme court held that there were common interests in an ongoing coverage dispute over already settled lawsuits (see id. ), and there is no real difference between that scenario and this one.

¶ 17 The parties have argued Waste Management 's application as an all-or-nothing question. However, although we find that it does apply, we must apply it fairly. As we noted, the common-interest exception applies only to those matters on which the parties might share liability, such as the LBO litigation, and not to those matters on which the parties are opposed, such as coverage. See Selby , 2017 IL App (1st) 151572, ¶ 26, 418 Ill.Dec. 655, 90 N.E.3d 1144. Accordingly, we vacate the portion of the trial court's discovery order compelling the Foundations to tender information on the issue of coverage; in all other respects, the discovery order is affirmed. As we modify the discovery order and find that the Foundations' challenge to the order was undertaken in good faith, we vacate the trial court's contempt finding. See BorgWarner , 2014 IL App (1st) 131824, ¶ 35, 387 Ill.Dec. 819, 23 N.E.3d 511. On remand, the trial court may consider entering protective orders concerning the information shared between the parties, subject to the court's discretion. See generally Selby , 2017 IL App (1st) 151572, ¶, 418 Ill.Dec. 655, 90 N.E.3d 1144 115.

¶ 18 We note that, at oral argument, the Foundations expressed great concern that a federal court-particularly the court overseeing the LBO litigation in New York-might view the common-interest exception differently and that a protective order might not prevent the LBO plaintiffs from obtaining through Gallagher the discovery the Foundations share with Gallagher. Those fears, however, are entirely baseless. First, Illinois and the Second Circuit, where the LBO litigation is being heard, have consistently applied the common-interest exception in similar fashion (compare Waste Management , 144 Ill.2d 178, 161 Ill.Dec. 774, 579 N.E.2d 322, with Schaeffler v. United States , 806 F.3d 34, 40 (2d Cir. 2015) (citing United States v. Schwimmer , 892 F.2d 237 (2d Cir. 1989) ), so this would hardly be a question of first impression for a district court in that circuit. But more importantly, even if it were, we are satisfied that anything the Foundations disclose to Gallagher as a result of the trial court's order could not be obtained through Gallagher . Were Gallagher subpoenaed by the LBO plaintiffs, principles of comity would compel the federal court to defer to the trial court's previously issued protective order, unless modified. See, e.g. , Donovan v. Lewnowski , 221 F.R.D. 587, 588 (S.D. Fla. 2004) (citing Tucker v. Ohtsu Tire & Rubber Co., Ltd. , 191 F.R.D. 495, 499-500 (D.Md. 2000) ). Moreover, because disclosure here would be made pursuant to state law, the Foundations would not waive any claim of privilege in a federal proceeding. See Fed. R. Evid. 502(c)(2). Thus, while the Foundations' disclosure "cannot be privileged from [the party] who may bear the ultimate burden of payment," the disclosure is apt to retain its "privileged status as to party opponents in the underlying litigation." Waste Management , 144 Ill.2d at 209, 161 Ill.Dec. 774, 579 N.E.2d 322.

¶ 19 We turn then, finally, to the issue of the stay. A trial court's decision to grant or deny a stay will not be overturned absent an abuse of discretion. See State Farm Fire & Casualty Co. v. John , 2017 IL App (2d) 170193, ¶ 18, 414 Ill.Dec. 536, 80 N.E.3d 679 (citing Allianz Insurance Co. v. Guidant Corp. , 355 Ill.App.3d 721, 730, 298 Ill.Dec. 126, 839 N.E.2d 113 (2005) ). In support of their argument that a stay should be granted, the Foundations invoke the rule set forth in Maryland Casualty Co. v. Peppers , 64 Ill.2d 187, 355 N.E.2d 24 (1976). Under the Peppers doctrine, a court considering a declaratory judgment action-such as coverage litigation-should generally stay that action to refrain from deciding issues of ultimate fact that might bind the parties in the underlying litigation. State Farm , 2017 IL App (2d) 170193, ¶ 23, 414 Ill.Dec. 536, 80 N.E.3d 679. As we recently explained:

"The classic scenario [under Peppers ] is where an insured is sued and the allegations of the complaint potentially fall within the scope of the insurance policy, thus triggering the insurer's duty to defend, but the insurer denies coverage based on an intentional-injury exclusion in the policy. Courts have explained that, in such circumstances, the issue of the insured's intent should be litigated in the underlying tort action, not the declaratory judgment action. [Citations.]" Id.

¶ 20 We note that there is some irony to the Foundations' invocation of the Peppers doctrine, in that the Foundations wish for Gallagher to be treated as an insurer when it comes to issuing a stay under Peppers , but not when it comes to sharing information pursuant to the common-interest doctrine under Waste Management . In any event, with respect to the stay, the Foundations allege that a stay is warranted because there are "overlapping issues" in the LBO litigation and this malpractice litigation and that, thus, a finding on an affirmative-defense issue here could prejudice the Foundations there. We agree with the Foundations that what they knew of the LBO and when they knew it are likely to be critical factors in both suits.

¶ 21 Like the trial court, we are mindful that the LBO litigation, eight years in, is still in the pleading stages and appears unlikely to be resolved any time soon. See Deutsche Bank Trust Co. Americas v. Robert R. McCormick Foundation , 584 U.S. ----, ----, 138 S.Ct. 1162, 1163, 200 L.Ed.2d 735 (2018) (statement of Kennedy, J., and Thomas, J., respecting the petition for certiorari ); see also In re Tribune Co. Fraudulent Conveyance Litigation , No. 11-md-2296 (RJS), 2017 WL 82391 (S.D.N.Y. Jan. 6, 2017). The issuance of a stay requires careful evaluation. For one thing, the current status of the LBO litigation counsels in favor of a stay here, particularly since liability has not yet been determined there. See State Farm , 2017 IL App (2d) 170193, ¶¶ 23-30, 414 Ill.Dec. 536, 80 N.E.3d 679. By the same token, as the trial court noted, Gallagher must not be prejudiced by the loss of evidence in this proceeding, especially as the LBO litigation might not be resolved for years to come.

¶ 22 It is not clear, however, that this litigation must be stayed at this time to avoid prejudicing the Foundations in the LBO litigation. That could change. But for now, discovery could move forward and this case could be resolved on grounds that do not implicate the factual matters in the LBO litigation. We believe that the trial court on remand will be in the best position to allow the parties to proceed with discovery and then to stay this litigation if necessary and if the LBO litigation has not yet concluded.

¶ 23 For these reasons, the trial court's discovery order is affirmed as modified and the contempt order is vacated. The court's judgment denying a stay is affirmed without prejudice, pending discovery, dispositive motions, and the status of the LBO litigation.

¶ 24 No. 2-17-0939, Affirmed as modified; contempt order vacated; cause remanded.

¶ 25 No. 2-17-0940, Affirmed and remanded with directions.

Justices Zenoff and Birkett concurred in the judgment and opinion.


text:
    William Lee GRANT II, Plaintiff-Appellant, v. The STATE of Illinois, Defendant-Appellee.
    NO. 4-17-0920
    Appellate Court of Illinois, Fourth District.
    FILED August 6, 2018
    William Lee Grant II, of Springfield, appellant pro se.
    Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and John P. Schmidt, Assistant Attorney General, of counsel), for appellee.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In September 2017, plaintiff, William Lee Grant II, filed a complaint for civil rights violations against the Illinois Department of Transportation. In November 2017, the State filed a motion to dismiss, arguing that (1) plaintiff failed to set forth a legally recognized cause of action, (2) plaintiff failed to plead facts that would bring his claim within a legally recognized cause of action, and (3) his claim was barred by the statute of limitations. 735 ILCS 5/2-615, 2619(a)(5) (West 2016). The State did not file an answer to plaintiff's complaint.

¶ 2 In December 2017, plaintiff filed a motion for summary judgment. Id. § 2-1005. Later that month, the trial court granted the State's motion to dismiss. Likewise, the court concluded that plaintiff's motion for summary judgment was moot.

¶ 3 Plaintiff appeals, essentially arguing that the trial court erred in dismissing his complaint because the State did not file an answer that denied his allegations. In pertinent part, the State argues that it did not admit plaintiff's allegations. We agree with the State.

¶ 4 I. BACKGROUND

¶ 5 In September 2017, plaintiff filed a complaint for civil rights violations against the Illinois Department of Transportation. In November 2017, the State filed a motion to dismiss, arguing that (1) plaintiff failed to set forth a legally recognized cause of action, (2) plaintiff failed to plead facts that would bring his claim within a legally recognized cause of action, and (3) his claim was barred by the statute of limitations. Id. §§ 2-615, 2-619(a)(5). The State did not file an answer to plaintiff's complaint.

¶ 6 In December 2017, plaintiff filed a motion for summary judgment. Id. § 2-1005. Later that month, the trial court granted the State's motion to dismiss. The court concluded that plaintiff's complaint was "frivolous, irrational, and wholly incredible." Likewise, the court concluded that plaintiff's motion for summary judgment was moot.

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 Plaintiff appeals, essentially arguing that the trial court erred in dismissing his complaint because the State did not file an answer that denied his allegations. In pertinent part, the State argues that it did not admit plaintiff's allegations. We agree with the State.

¶ 10 A. Defendant's Motion to Dismiss

¶ 11 1. The Applicable Law

¶ 12 A motion to dismiss brought pursuant to section 2-615 of the Code of Civil Procedure (Code) (id. § 2-615 ) attacks the legal sufficiency of the complaint. In re Estate of Powell , 2014 IL 115997, ¶ 12, 382 Ill.Dec. 14, 12 N.E.3d 14. In other words, the defendant is saying, "So what? The facts the plaintiff has pleaded do not state a cause of action against me." (Internal quotation marks omitted.) Winters v. Wangler , 386 Ill. App. 3d 788, 792, 325 Ill.Dec. 729, 898 N.E.2d 776, 779 (2008). This is why a section 2-615 motion is often referred to as a "So what" motion. See Steve L. Dellinger, The Art of Motions: Understanding Illinois Civil Pretrial Motions , 38 S. Ill. U. L.J. 183, 202 (2014). When ruling on such a motion, the court must accept as true all well-pleaded facts in the complaint, as well as any reasonable inferences that may arise from those facts. In re Estate of Powell , 2014 IL 115997, ¶ 12, 382 Ill.Dec. 14, 12 N.E.3d 14. Nonetheless, a court cannot accept as true mere conclusions of law or fact unsupported by specific factual allegations. Pooh-Bah Enterprises, Inc. v. County of Cook , 232 Ill. 2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781, 789 (2009). A complaint should be dismissed under section 2-615 only if it is clearly apparent from the pleadings that no set of facts can be proved that would entitle the plaintiff to recovery. In re Estate of Powell , 2014 IL 115997, ¶ 12, 382 Ill.Dec. 14, 12 N.E.3d 14. We review de novo an order granting a section 2-615 motion to dismiss. Id.

¶ 13 A motion to dismiss brought under section 2-619 admits-for the purposes of the motion-the legal sufficiency of the complaint, admits all well-pleaded facts and reasonable inferences from those well-pleaded facts, and asserts an affirmative matter outside the complaint that defeats the cause of action. Reynolds v. Jimmy John's Enterprises, LLC , 2013 IL App (4th) 120139, ¶ 31, 370 Ill.Dec. 628, 988 N.E.2d 984 ; Winters , 386 Ill. App. 3d at 792, 325 Ill.Dec. 729, 898 N.E.2d 776. In other words, the defendant is saying, "Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim." (Internal quotation marks omitted.) Winters , 386 Ill. App. 3d at 792, 325 Ill.Dec. 729, 898 N.E.2d 776. This is why a section 2-619 motion is often referred to as a "Yes, but" motion. Id. When ruling on a section 2619 motion, the court construes the pleadings in the light most favorable to the nonmoving party and should only grant the motion if the plaintiff can prove no set of facts that would support a cause of action. Reynolds , 2013 IL App (4th) 120139, ¶ 31, 370 Ill.Dec. 628, 988 N.E.2d 984. We review de novo an order granting a section 2-619 motion. Id.

¶ 14 In pertinent part, section 2-610(a) states that "[e]very answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates." 735 ILCS 5/2-610(a) (West 2016). This section further states that "[e]very allegation, except allegations of damages, not explicitly denied is admitted." Id. § 2-610(b). The Fifth District has reasoned that "where the defendants failed to file an answer at all, section 2-610 of the Code ( 735 ILCS 5/2-610 (West 2012) ) is inapplicable, and that section does not mandate a finding that all of the allegations of the complaint are deemed admitted." Crawford County Oil, LLC v. Weger , 2014 IL App (5th) 130382, ¶ 14, 383 Ill.Dec. 812, 15 N.E.3d 978. It is proper to file a section 2619 motion prior to filing an answer. Clemons v. Nissan North America, Inc. , 2013 IL App (4th) 120943, ¶ 33, 375 Ill.Dec. 304, 997 N.E.2d 307.

¶ 15 2. This Case

¶ 16 On appeal, plaintiff argues that "the trial court * * * made a mistake by dismissing Plaintiff's complaint[.]" Plaintiff argues that the "trial court failed to acknowledge" that the "Illinois Attorney General's Office do[es] not deny the allegations of William Lee Grant II pursuant to 735 ILCS 5/2-610(b)." Apparently, plaintiff argues that the State admitted his allegations by failing to file an answer that affirmatively denied his allegations. See 735 ILCS 5/2-610(b) (West 2016). Plaintiff then describes his allegations in exhaustive detail. (We note that his brief fails to comply with Illinois Supreme Court Rule 341 in multiple regards. Ill. S. Ct. R. 341(h)(6), (7) (eff. Nov. 1, 2017).)

¶ 17 The State never filed an answer in this case. Instead, the State filed a motion to dismiss pursuant to sections 2-615 and 2-619(a) of the Code. 735 ILCS 5/2-615, 2-619(a)(5) (West 2016). The trial court granted this motion. Accordingly, pursuant to the rationale of Weger , with which we agree, the State did not admit the allegations in plaintiff's complaint. Weger , 2014 IL App (5th) 130382, ¶ 14, 383 Ill.Dec. 812, 15 N.E.3d 978 ("where the defendants failed to file an answer at all, section 2-610 of the Code [citation] is inapplicable, and that section does not mandate a finding that all of the allegations of the complaint are deemed admitted"). Likewise, it was proper for the State to file a section 2-619 motion prior to filing an answer. Nissan North America, Inc. , 2013 IL App (4th) 120943, ¶ 33, 375 Ill.Dec. 304, 997 N.E.2d 307. Accordingly, plaintiff's argument is without merit.

¶ 18 B. Plaintiff's Forfeiture

¶ 19 The trial court dismissed plaintiff's case because (1) plaintiff failed to set forth a legally recognized cause of action, (2) plaintiff failed to plead facts that would bring his claim within a legally recognized cause of action, and (3) his claim was barred by the statute of limitations. 735 ILCS 5/2-615, 2-619(a)(5) (West 2016). Likewise, the trial court concluded that plaintiff's motion for summary judgment was moot. In his appellate brief, plaintiff fails to respond to these legal issues. Accordingly, any potential argument on these issues is forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).

¶ 20 III. CONCLUSION

¶ 21 For the reasons stated, we affirm the trial court's judgment.

¶ 22 Affirmed.

Presiding Justice Harris and Justice DeArmond concurred in the judgment and opinion.