Illinois: Wrongful Death Action Against Employer Alleging “Dual Capacity” Fails

Extensively quoting from Larson’s Workers’ Compensation Law and reiterating the state’s two-prong test to invoke the so-called “dual capacity doctrine” as an exception to the exclusive remedy provided by the state’s Workers’ Compensation Act, an Illinois appellate court recently held that the widow of a deceased Morgan Stanley employee killed in a private aircraft crash could not maintain a wrongful death action against the employer and a co-employee who was piloting the plane at the time of the crash [Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121, 2013 IL App (1st) 112121, 2013 Ill. App. LEXIS 621 (Sept. 12, 2013)]. Under the two-pronged test, the widow had to prove (1) the employer was acting in two “capacities,” such that the second capacity conferred upon it obligations unrelated to those flowing from the first, that of employer; and (2) that the employer was acting as a distinct separate legal persona, citing Ocasek v. Krass, 153 Ill. App. 3d 215, 505 N.E.2d 1258, 106 Ill. Dec. 467 (1987). According to the court, the plaintiff failed to meet either of the requirements. Noting that the issue of business travel had been addressed in Ocasek and that “the mere fact that the employer, as an individual, pilots an airplane, drives a car, or performs such other functions which impose upon him the duty to exercise due care, does not serve to endow him with a second legal persona so completely independent from and unrelated to his status as an employer” [Ocasek, 153 Ill. App. 3d at 217, quoting Larson’s Workers’ Compensation Law], the appellate court affirmed the trial court’s dismissal of the civil action.