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24 August 2000

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Plaintiff, Labor World, Inc., appeals the trial court's orderdismissing count I of its amended complaint against defendant, JustParts, Inc. Plaintiff argues that count I contained a viable claimof breach of contract. We reverse and remand.

In count I of its amended complaint, plaintiff made thefollowing allegations. Plaintiff was a corporation in the businessof providing temporary industrial personnel. Plaintiff contractedto provide defendant with the services of Jose Sanchez. Pursuant tothat contract, defendant's authorized agent signed daily "timetickets" that set out the hours Sanchez worked. Defendant's agent signed each ticket below a statement that read, "CUSTOMER AGREES TOTHE TERMS ON THE REVERSE SIDE OF THIS TICKET."

On the reverse side of each ticket were a number of "TERMS ANDCONDITIONS." Term No. 4 stated as follows:

"CUSTOMER shall not employ LABOR WORLD employees tooperate dangerous or unprotected machinery or equipment, or toperform any work on or using ladders or scaffolding or toperform excavation work where proper shoring and protection isnot provided."

Plaintiff alleged that, in breach of term No. 4, defendant placedSanchez in a "modified lift/basket forklift" and elevated himseveral feet. Sanchez fell to the ground and was seriously injured.

According to count I, Sanchez filed a workers' compensationclaim against plaintiff. Plaintiff settled that claim by payingSanchez a total of $70,151.54. Plaintiff sought to recover that sumfrom defendant, concluding that "Defendant breached its obligationto Plaintiff to preclude Mr. Sanchez from being in a dangeroussituation, thus subjecting Plaintiff to liability."

Pursuant to section 2--619 of the Code of Civil Procedure (735ILCS 5/2--619 (West 1998)), defendant moved to dismiss count I. Defendant asserted that plaintiff's claim of breach of term No. 4was barred by a separate contract between the parties. According tothat contract, defendant was an alternate insured under plaintiff'spolicy of workers' compensation insurance. Plaintiff assureddefendant that its insurance would cover any workers' compensationclaim that arose while plaintiff's employee was working fordefendant. Therefore, defendant argued, plaintiff's claim wasprecluded by the following principle:

"When parties to a business transaction agree thatinsurance will be provided as a part of the bargain, theagreement must be interpreted as providing mutual exculpationto the bargaining parties. The parties are thus deemed to haveagreed to look solely to the insurance in the event of loss,and not impose liability on the other." Monical v. State FarmInsurance Co., 211 Ill. App. 3d 215, 223 (1991), citing Brisenov. Chicago Union Station Co., 197 Ill. App. 3d 902, 905 (1990),citing Vandygriff v. Commonwealth Edison Co., 87 Ill. App. 3d374, 378 (1980).

Defendant concluded that, because plaintiff agreed to insuredefendant against workers' compensation claims, plaintiff could notsubject defendant to liability for Sanchez's claim.

Defendant also challenged the truth of plaintiff's allegations. Defendant asserted that Sanchez's claim was paid not by plaintiffbut by plaintiff's insurance carrier. Thus, defendant maintained,plaintiff's lawsuit essentially was a subrogation claim.

In its response, plaintiff did not deny that defendant wascovered by plaintiff's workers' compensation insurance. However,plaintiff argued that the parties' contract for insurance did notpreclude plaintiff from recovering for defendant's breach of termNo. 4. According to plaintiff, that breach of contractdistinguished the present case from those upon which defendantrelied.

The trial court dismissed count I with prejudice. It ruledalso that its order was immediately appealable (see 155 Ill. 2d R.304(a)). Plaintiff timely appealed.

A motion to dismiss pursuant to section 2--619 may be grantedonly if no material facts are in dispute and the moving party isentitled to dismissal as a matter of law. Rochon v. Rodriguez, 293Ill. App. 3d 952, 958 (1997). All well-pleaded allegations in thecomplaint must be taken as true. American National Bank & Trust Co.v. Thomas, 288 Ill. App. 3d 343, 346 (1997). Our standard of reviewis de novo. Epstein v. Chicago Board of Education, 178 Ill. 2d 370,383 (1997).

In this case, we must determine the relationship between twoalleged contracts. First, plaintiff alleged that there was acontract (term No. 4) that prevented defendant from employingSanchez on a ladder or on scaffolding. Second, defendant allegedthat there was a contract under which plaintiff insured defendantagainst workers' compensation claims. Plaintiff argues that,despite the latter contract, defendant's breach of the formercontract subjects it to liability for Sanchez's claim. Defendantresponds that, despite the former contract, the latter contractrequires plaintiff to seek recovery only from its insurance carrier.

When we construe contracts, our primary goal is to effectuatethe parties' intentions. Kehoe v. Commonwealth Edison Co., 296 Ill.App. 3d 584, 590 (1998). As it did below, defendant relies on therule of construction expressed in Monical, Briseno, and Vandygriff. Those cases dictate that, when bargaining parties provide forinsurance in their contract, they manifest an intent to look only tothe insurance in the event of loss. Defendant argues that the rulerequires the dismissal of plaintiff's claim, by which plaintiffseeks to recover an insured loss from defendant.

We note initially that some courts have deviated from theapproach taken in Monical, Briseno, and Vandygriff. According tothose courts, the mere fact that contracting parties provide forinsurance does not allow the inference that they share a mutuallyexculpatory intent. Instead, such an intent may be discerned onlyif the contract actually expresses it. See Dowling v. Otis ElevatorCo., 192 Ill. App. 3d 1064, 1070 (1989); Rome v. Commonwealth EdisonCo., 81 Ill. App. 3d 776, 783 (1980).

"Courts have applied these distinct analytical approaches indiverse factual and legal contexts." Kehoe, 296 Ill. App. 3d at588. In this case, however, we need not choose between them. Evenif we agreed with the rule in Monical, Briseno, and Vandygriff, wecould not invoke that rule to affirm the dismissal of plaintiff'sclaim.

As we noted, the rule in Monical, Briseno, and Vandygriff is arule of contractual construction. It is a mechanism by which acourt may infer the intent of the bargaining parties. However,because the best indication of the parties' intent is the languageof the contract, that language must prevail when it conflicts witha general rule of construction. See In re Marriage of Sweders, 296Ill. App. 3d 919, 922 (1998). Monical, Briseno, and Vandygriff donot hold otherwise, for to do so would subvert the primary goal ofcontractual interpretation. Therefore, even if we agree that, as ageneral matter, parties who bargain for insurance do so with amutually exculpatory intent, we may not apply that rule when thecontract expresses a contrary intent.

Here, the parties alleged two contracts, not one. However,contrary to defendant's suggestion, plaintiff's promise to insuredefendant may not be considered in isolation. Instead, we mustinterpret it in light of the other contract alleged in this case,term No. 4. As our courts have long recognized:

" 'The general rule is that in the absence of evidence ofa contrary intention, where two or more instruments areexecuted by the same contracting parties in the course of thesame transaction, the instruments will be considered togetherand construed with reference to one another because they are,in the eyes of the law, one contract. *** This is true whetheror not the instruments were executed simultaneously; ifexecuted at different times as parts of the same transactionthey will be construed together. [Citation.] ' " Bornstein v.First United, 232 Ill. App. 3d 623, 628-29 (1992), quotingTepfer v. Deerfield Savings & Loan Ass'n, 118 Ill. App. 3d 77,80 (1983).

When these two contracts are considered together, a reasonableinterpretation of the parties' intent is the following: plaintiffagreed to insure defendant against workers' compensation claims, butonly as long as defendant did not endanger plaintiff's employees byemploying them on ladders or on scaffolding. Thus, if plaintiffproves that defendant breached term No. 4, a finder of fact couldconclude that, under those facts, the parties expressly agreed notto look solely to the insurance in the event of loss. In that case,Monical, Briseno, and Vandygriff would not apply, and defendantwould be subject to liability for Sanchez's claim.

Because the parties' contract for insurance does notnecessarily bar plaintiff's claim under term No. 4, defendant is notentitled to dismissal as a matter of law. Therefore, we reverse thetrial court's order dismissing count I of plaintiff's complaint. Onremand, if both of these alleged contracts are shown to exist, theymust be construed together.

Defendant's alternative argument is that, in fact, plaintiff'sinsurance carrier, rather than plaintiff itself, is seekingrecovery. Defendant contends that the insurer is "behind thislitigation and is improperly attempting to manipulate the courtprocess, hide behind the name of [plaintiff], and seek recoveryagainst the defendant, which is its own insured." In its replybrief, plaintiff denies these assertions.

It is true that an insurer "does not have the right tomanipulate an action in order to excuse itself from protecting itsinsureds." Briseno, 197 Ill. App. 3d at 906. However, defendant'sargument is inappropriate at this stage of the proceedings. For thepurposes of a section 2--619 motion to dismiss, we must takeplaintiff's allegations as true. See Thomas, 288 Ill. App. 3d at346. Plaintiff alleged that plaintiff, not plaintiff's insurancecarrier, settled Sanchez's workers' compensation claim. Defendantmay not obtain a section 2--619 dismissal by raising an affirmativematter that merely challenges the truth of that allegation.

For these reasons, the judgment of the circuit court of De KalbCounty is reversed, and the cause is remanded for furtherproceedings.

Reversed and remanded.

McLAREN and GEIGER, JJ., concur.