A&R Janitorial v. Pepper Construction Co.

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Mroczko was employed by A&R as a custodian in a building where Pepper was performing maintenance work. Pepper's subcontractor, Perez, was replacing the carpets. While Mroczko was cleaning, a desk that had been placed in an upright position fell and injured her. Mroczko filed a successful workers’ compensation claim against A&R but failed to file a timely personal injury action. A&R filed a subrogation action. The Workers’ Compensation Act. 820 ILCS 305/5(b), permits an employee to file her own personal injury action against a third-party tortfeasor to recover damages for a work injury. The employer is entitled to reimbursement of its workers’ compensation benefits out of the proceeds obtained by the employee and has a limited right to intervene to protect its workers’ compensation lien. If the employee fails to file her own action, the employer may file the same action that the employee could have filed. The statute is silent as to whether an employee has the right to intervene in the employer's action. While A&R’s litigation was pending, Mroczko filed her own personal injury action, which was dismissed as barred by the two-year statute of limitations. Mroczko filed an amended complaint against Pepper only, alleging that her injuries arose out of Pepper’s construction work so that her action was timely under the four-year construction statute of limitations. The court dismissed the action. Mroczko then sought to intervene in A&R’s subrogation action. The circuit court denied that petition, citing res judicata. The Illinois Supreme Court agreed. Whether Mroczko had an interest in A&R’s action based on A&R’s pursuit of damages, including for her pain and suffering, is irrelevant to res judicata, which applies because Mroczko previously asserted the same claim against the same defendant, which resulted in a final judgment on the merits. View "A&R Janitorial v. Pepper Construction Co." on Justia Law