Chidichimo v. University of Chicago Press

                                                             First Division
                                                               June 9, 1997













No. 1-95-3742

CONCETTA CHIDICHIMO,            )       Appeal from the
                                )       Circuit Court
     Plaintiff-Appellant,       )       of Cook County.
                                )
               v.               )
                                )
UNIVERSITY OF CHICAGO PRESS,    )
UNIVERSITY PRESS, INC., and     )
UNIVERSITY OF CHICAGO,          )       Honorable
                                )       MICHAEL J. HOGAN,
     Defendants-Appellees.      )       Judge Presiding.


     JUSTICE BUCKLEY delivered the opinion of the court:

     Plaintiff, Concetta Chidichimo, brought an action for
spoliation of evidence against defendants, the University of
Chicago Press, University Press, Inc. and the University of
Chicago, alleging that defendants intentionally or negligently
purged its computer of records plaintiff had requested in a
previous workers' compensation action brought against defendants
after the death of plaintiff's husband.  The circuit court
dismissed plaintiff's complaint, finding that section 5(b) of the
Illinois Workers' Compensation Act bars any action for damages
resulting from an injury incurred in the course of employment
except as provided in the Act (820 ILCS 305/5(b) (West 1994)). 
Plaintiff now appeals.
     Plaintiff's husband, Martin Chidichimo, was employed by
defendants as a linotype operator.  On March 18, 1983, he
suffered a heart attack and died during his lunch break. 
Plaintiff filed a workers' compensation claim against defendants,
alleging that her husband's death arose out of and in the course
of his employment.  In December 1983 and February 1984, plaintiff
served defendants with subpoenas for the production of certain
employee records related to her husband's employment.  Defendants
provided some of the requested documents but also responded that
compliance with the subpoenas was not required because the
Workers' Compensation Act did not contain a discovery provision. 
In March 1985, defendants deleted the rest of the requested
records from its computer system.  Defendants maintain that these
deletions were performed as a routine matter when the records
were two years old.  
     In February 1988, the case proceeded to arbitration.  As
part of her workers' compensation claim, plaintiff also asserted
that defendants' actions in deleting her husband's employment
records from its computer system created a presumption that the
records would have contained evidence sufficient to show that
Martin Chidichimo died from an injury arising out of or in the
course of his employment, as required for recovery under the
Workers' Compensation Act.  820 ILCS 305/1 et seq. (West 1994). 
On June 23, 1988, the arbitrator issued a decision finding that
plaintiff failed to show that her husband's death arose out of
and in the course of his employment.  The arbitrator also found
that there was no evidence of wilful destruction of documents. 
On May 30, 1991, the Industrial Commission affirmed the
arbitrator's decision.  
     Plaintiff filed an action for administrative review, and the
circuit court remanded the case to the Industrial Commission with
instructions to issue a supplemental opinion explaining its
holding with respect to the deleted computer files.  On remand,
the Commission held that the subpoenas issued by plaintiff for
the deleted documents violated Industrial Commission Rule
7030.50, which provides that "witnesses and documents may only be
subpoenaed to appear or be produced at the time and place set for
hearing the cause."  50 Ill. Adm. Code 7030.50 (1994).  Because
plaintiff's subpoenas did not request production at the time and
place of a hearing, they were essentially discovery requests, and
neither the Workers' Compensation Act nor the Industrial
Commission rules require compliance with discovery requests.
     On June 28, 1994, the circuit court entered an order
affirming the decision of the Industrial Commission.  On July 26,
1994, plaintiff filed her timely notice of appeal.  
     On February 28, 1995, while her appeal was pending in the
appellate court, plaintiff filed the instant action against
defendants for spoliation of evidence.  Count I alleged negligent
spoliation and count II alleged intentional spoliation.  
     On March 29, 1995, defendants filed a motion to dismiss
pursuant to section 2-619 of the Illinois Code of Civil
Procedure.  735 ILCS 5/2-619 (West 1994).  Defendants' motion
asserted that (1) plaintiff's complaint failed to state a claim
upon which relief could be granted, (2) the action is barred by
the statute of limitations, (3) the action is barred by
principles of collateral estoppel, and (4) the action is barred
by the exclusivity provision in section 5(a) of the Workers'
Compensation Act.  Defendants also filed a motion for sanctions
pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).  On
September 29, 1995, the circuit court granted defendants' motion
to dismiss, finding that the action is barred by the exclusivity
provision in section 5(a) of the Workers' Compensation Act.  The
court did not address the other grounds for dismissal asserted in
defendants' motion.  Defendants' motion for sanctions was denied. 
Plaintiff filed a timely notice of appeal on October 27, 1995. 
Defendants did not file a cross-appeal.
     On March 8, 1996, the appellate court affirmed the decisions
of the Industrial Commission and the circuit court in plaintiff's
original workers' compensation action.  Chidichimo v. Industrial
Comm'n, 278 Ill. App. 3d 369, 662 N.E.2d 611 (1996) (Chidichimo
I).
     In this case, plaintiff claims the circuit court erred in
dismissing her complaint under section 5(a) of the Workers'
Compensation Act.  That section provides in relevant part: 
               "No common law or statutory right to
          recover damages from the employer *** for
          injury or death sustained by any employee
          while engaged in the line of his duty as such
          employee, other than the compensation herein
          provided, is available to any employee who is
          covered by the provisions of this Act ***." 
          820 ILCS 305/5(a) (West 1994).
     In Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 564 N.E.2d 1222 (1990), the Illinois Supreme Court explained that the
Workers' Compensation Act is designed to provide employees with
financial protection and impose liability on employers regardless
of whether they are at fault.  Meerbrey, 139 Ill. 2d  at 462, 564 N.E.2d  at 1225.  The exclusivity provision provides that, in
return for incurring liability without fault, employers are
protected by a prohibition of common law suits by employees
against employers.  Meerbrey, 139 Ill. 2d  at 462, 564 N.E.2d  at
1225.
     However, the court held that a plaintiff-employee can escape
the exclusivity provision and bring a common-law action against
the employer if the employee can prove any of the following: (1)
the injury was not accidental; (2) the injury did not arise from
his or her employment; (3) the injury was not received during the
course of employment; or (4) the injury was not compensable under
the Act.  Meerbrey, 139 Ill. 2d  at 463, 564 N.E.2d  at 1226.
     In this case, plaintiff filed a workers' compensation claim
alleging that her husband's death arose out of and in the course
of his employment.  The arbitrator, the Industrial Commission,
the circuit court, and the appellate court all held that
plaintiff failed to show a causal link between her husband's
employment and his heart attack.  Chidichimo I, 278 Ill. App. 3d
at 377-78, 662 N.E.2d  at 617.  Clearly, therefore, the "injury
was not compensable under the Act" (see Meerbrey, 139 Ill. 2d  at
463, 564 N.E.2d at 1226), and plaintiff's action in this case is
not barred by the exclusivity provision.  For these reasons, the
circuit court erred in basing the dismissal of plaintiff's action
on section 5(a) of the Workers' Compensation Act.  
     Nonetheless, dismissal was proper because the issue of
spoliation of evidence was addressed in Chidichimo I, and,
therefore, plaintiff is collaterally estopped from relitigating
that question.  The threshold requirements for the application of
collateral estoppel, or issue preclusion, are:  (1) the issue
presented in the current action is identical to one decided in
prior adjudication; (2) there was a final judgment on the merits
in the prior adjudication; and (3) the party against whom
estoppel is asserted was a party or in privity with a party to
the prior adjudication.  In re Owens, 125 Ill. 2d 390, 399-400,
532 N.E.2d 248, 252 (1988).
     Here, there can be no doubt that Chidichimo I was a final
decision on the merits and plaintiff was a party in that
adjudication.  The record also shows that the issue of spoliation
in this case is identical to that which was adjudicated in
Chidichimo I.  Issue identity exists where there was "a finding
of a specific, material, and controlling fact in the former case
*** [that was] necessarily determined by the court in rendering
the judgment."  Anderson v. Financial Matters, Inc., 285 Ill.
App. 3d 123, 132, 672 N.E.2d 1261, 1267 (1996).  In Chidichimo I,
plaintiff raised the same issue of spoliation of evidence that
she raises here, and the court resolved the issue in favor of
defendants.  
     Plaintiff's cause of action in this case was discussed in
the recent Illinois Supreme Court case of Boyd v. Travelers
Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995).  In Boyd,
the court held that the traditional negligence elements of duty,
breach, causation, and damages apply in an action for negligent
spoliation.  Boyd, 166 Ill. 2d  at 194-95, 652 N.E.2d  at 270.  The
factual findings in Chidichimo I are conclusive of at least two
of these elements, duty and causation.  
     A defendant may owe "a duty of due care to preserve evidence
if a reasonable person in the defendant's position should have
foreseen that the evidence was material to a potential civil
action."  Boyd, 166 Ill. 2d  at 195, 652 N.E.2d  at 271.  In
Chidichimo I, the court noted that civil suits and workers'
compensation claims are different actions.  Civil suits are
governed by statutory discovery rules and supreme court rules;
workers' compensation claims, however, are governed by the
Workers' Compensation Act, which does not allow for pretrial
discovery.  Chidichimo I, 278 Ill. App. 3d at 375, 662 N.E.2d  at
615.  Therefore, the finding in Boyd, that a defendant has a duty
to maintain evidence that may be material to a civil action, does
not apply in a workers' compensation context.
     The Chidichimo I court made the following factual findings
regarding defendants' destruction of Martin Chidichimo's records:
(1) defendants did not comply with the subpoenas because the
Workers' Compensation Act did not require it to do so; (2) the
destruction of records occurred in a routine purging process more
than a year after the subpoenas were issued; (3) plaintiff failed
to seek enforcement of the subpoenas until four years after they
were issued; and (4) plaintiff failed to take reasonable steps to
ensure preservation of the records and protect against routine
destruction after defendants refused to comply with the
subpoenas.  Chidichimo I, 278 Ill. App. 3d at 375, 662 N.E.2d  at
615.  These facts clearly establish that a reasonable person in
defendants' position would not have foreseen that the records
would be material to a potential civil suit.  As discussed above,
a workers' compensation claim is different from a civil suit. 
Defendants had no reason to believe that plaintiff would take any
action other than the workers' compensation claim.  Since the
Workers' Compensation Act did not require defendants to produce
the records, defendants had no duty to preserve them.  See Boyd,
166 Ill. 2d  at 195, 652 N.E.2d  at 271.
     The Boyd court also held that in order to prove the
necessary element of causation, a plaintiff in a negligent
spoliation case must show that the destruction of evidence caused
the plaintiff to be unable to prove the underlying suit.  Boyd,
166 Ill. 2d  at 197, 652 N.E.2d  at 271.  In Chidichimo I, the
court found that the importance of the requested records was
speculative at best because independent evidence was presented
that established the facts contained in the records.  Chidichimo
I, 278 Ill. App. 3d at 376, 662 N.E.2d  at 616.  Therefore, the
prior adjudication was also dispositive of the causation element
of plaintiff's current action.
     The factual findings in Chidichimo I establish that
defendants had no duty to maintain the records and that plaintiff
failed to show their destruction caused her to be unsuccessful in
her workers' compensation claim.  Therefore, plaintiff is
collaterally estopped from bringing this lawsuit.
     Finally, defendants claim that sanctions should be imposed
on plaintiff for abuse of the judicial process, pursuant to
Supreme Court Rules 137 and 375.  134 Ill. 2d Rs. 137, 375.
Defendants' motion for Rule 137 sanctions was denied by the
circuit court.  In order to preserve that issue for appellate
review, defendants were required to file a cross-appeal.  Guerino
v. Depot Place Partnership, 273 Ill. App. 3d 27, 31, 652 N.E.2d 410, 413 (1995).  Defendants' failure to file a cross-appeal
constitutes a waiver of the sanctions issue. 
     With respect to defendants' request for Rule 375 sanctions,
we find that plaintiff's appeal was a good-faith argument based
on existing law.  This is especially so because, while we affirm
the dismissal of plaintiff's complaint, we have held that the
trial court's reasoning was erroneous.  Therefore, defendants'
request for Rule 375 sanctions is denied.
     For the foregoing reasons, the decision of the circuit court
of Cook County is affirmed.
     Affirmed.
     O'BRIEN and GALLAGHER, JJ., concur.