2017 IL App (1st) 170155

                                                                              FOURTH DIVISION
                                                                              December 14, 2017

No. 1-17-0155

 XIAO LING PENG,                                                          )
                                                                          )   Appeal from
     Plaintiff-Appellant,                                                 )   the Circuit Court
                                                                          )   of Cook County
        v.                                                                )
                                                                          )   14-L-11447
 MARK NARDI, MOHAMMED KOUK, and LEI GUAN,                                 )
                                                                          )   Honorable
     Defendants                                                           )   John P. Callahan, Jr.,
                                                                          )   Judge Presiding
 (LEI GUAN, Defendant-Appellee).                                          )

        JUSTICE McBRIDE delivered the judgment of the court, with opinion
        Justices Gordon and Ellis concurred in the judgment and opinion.

                                             OPINION

¶1      Xiao Ling Peng, a restaurant worker, filed a negligence suit against her coworker, Lei

Guan, and two other drivers, seeking damages for injuries she sustained in a three-car collision

that occurred while Guan was driving restaurant employees to work in a van their employer

provided for their commute. The trial court initially denied Guan’s motion to dismiss, but later

granted his motion to reconsider and then dismissed Peng’s action as to Guan with prejudice and

authorized her to take an interlocutory appeal. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Peng’s

allegations against the other two drivers are pending in the trial court. Peng contends the court

erred in finding that a civil suit against her tortious coworker is barred by the exclusivity

provision of the Illinois Workers’ Compensation Act (820 ILCS 305(a) (West 2014)) (Act)

because the commute was not part of her employment and she did not affirmatively elect the de

minimus reimbursement for some medical expenses which her employer voluntarily paid directly
1-17-0155
to one of her medical care providers. Guan responds that Peng misapprehends authority

indicating her injury is work-related and exclusively compensable under the Act because the

employer controlled Peng’s transportation, and he also contends Peng is estopped from

contradicting her worker’s compensation claim. Peng replies that she filed for worker’s

compensation recently, in 2016, just before the statute of limitations ran, solely to protect her

rights, but that her intention is to be compensated through the litigation she initiated in 2014, as

evidenced by this appeal.

¶2      In 2014, Peng and Guan were co-employees of a Chinese and Japanese buffet restaurant

owned and operated by Royal Illinois, LLC. Peng worked in the “back of the house,” preparing

food for the dim sum station and keeping the station tidy. Guan was a waiter. The restaurant was

located in Hoffman Estates, Illinois, which is a community northwest of Chicago; and Peng,

Guan, and a number of other Royal Buffet employees resided on the south side of Chicago, in

the Bridgeview and Chinatown neighborhoods. The employer gave Guan the keys to a 15-seat

2010 Ford E350 passenger van to transport himself and other employees to and from the

restaurant, paid him $600 a month for his driving duties, and covered the cost of fuel. The

employer prohibited Guan from allowing anyone else to drive the van. The employer also

prohibited Guan from making personal use of the vehicle and instructed him to leave the van

parked when he was not transporting restaurant employees. The vehicle would be filled to

capacity on weekends, but less full during the week. The employer would initially tell Guan

where to pick up new employees, because he would not recognize them, but after that, Guan

chose the pick-up and drop-off points, and he typically made three stops in Bridgeview and

Chinatown. Guan also chose the specific route to take to and from work, based on prevailing

traffic conditions.



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¶3     The accident that caused injury to Peng occurred on Friday, June 20, 2014, at 10:20 a.m.

when Guan was driving in Chicago on northbound I-90, in the far left lane, at or near its

intersection with Harlem Avenue. (Three different accident dates appear in the record on appeal,

and we have used the date written on the Illinois Traffic Crash Report.) Peng was asleep while

seated in the third row of the van’s four rows of seats. Despite “urgently braking,” Guan struck

the back of a 2008 Acura K1 being driven by Mohammed A. Kouk, who in turn struck the back

of a Nissan van being driven by Mark A. Nardi. Guan’s passengers suffered mostly minor

injuries, with the worst appearing to be a deep facial cut. At the emergency room, Peng was

diagnosed with “a muscle and tendon” injury in her left hip and discharged with a walker and

painkillers. When the hip pain continued to be unbearable more than a month later, Peng went to

the hospital and was diagnosed with a pelvic fracture. When she was deposed in August 2015,

Peng said the medical treatment she received had only partially alleviated the pain.

¶4     An employee injured on the job normally cannot sue her Illinois employer or

coemployee, provided the employee is entitled to receive worker’s compensation benefits from

the employer or its insurer. Ramsey v. Morrison, 175 Ill. 2d 218, 224, 676 N.E.2d 1304, 1307

(1997); Illinois Insurance Guaranty Fund v. Virginia Surety Co., 2012 IL App (1st) 113758, ¶

16, 979 N.E.2d 503. See 820 ILCS 305/5(a), 11 (West 2014). The Act is a comprehensive statute

that compels an employer to pay for job-related injuries without being able to resort to the

various defenses it could plead in a tort suit. Illinois Insurance Guaranty Fund, 2012 IL App

(1st) 113758, ¶ 16, 979 N.E.2d 503. However, in return for disbursing prompt and no-fault

compensation, the maximum amount the employer must pay is capped. Illinois Insurance

Guaranty Fund, 2012 IL App (1st) 113758, ¶ 16, 979 N.E.2d 503. Thus, when an accident

occurs, an employee is financially protected and the employer avoids the prospect of litigation



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and a potentially larger judgment in a common law action. Meerbrey v. Marshall Field & Co.,

Inc., 139 Ill. 2d 455, 462, 564 N.E.2d 1222, 1225 (1990); Fregeau v. Gillespie, 96 Ill. 2d 479,

486, 451 N.E.2d 870, 873 (1983) (indicating the workers’ compensation system “was designed

to provide speedy recovery without proof of fault for accidental injuries”); 820 ILCS 305/11

(West 2014) (workers’ compensation “shall be the measure of the responsibility of any

employer”).

¶5     A coemployee acting in the course of his employment who accidentally injures an

employee is immune from a common law negligence action, in furtherance of the Act’s

underlying policy that the costs of industrial accidents be placed on the industry. Ramsey, 175 Ill.
2d at 227, 676 N.E.2d at 1308 (citing Rylander v. Chicago Short Line Ry. Co., 17 Ill. 2d 618,

628, 161 N.E.2d 812, 818 (1959)). The purpose of the Act would be blunted if the costs of job-

related injuries were shifted from one employee to another employee. Rylander, 17 Ill. 2d at 628,

161 N.E.2d at 818. The Illinois supreme court reasoned:

       “ ‘[If coemployee immunity were not recognized] an employee who has inadvertently

       injured a fellow worker would be forced to bear the sole cost of defending and satisfying

       the common-law action without any part of the cost being passed on to the industry, since

       the common employer’s liability is expressly limited to the compensation award.

       [Citation.] In view of the fact that a considerable portion of industrial injuries can be

       traced to the negligence of a coworker, such litigation could reach staggering proportions,

       and would not only tend to encourage corrupt and fraudulent practices but would also

       disrupt the harmonious relations which exist between coworkers. The avoidance of such

       results is most certainly beneficial to the employee.’ ” [Citations.] Ramsey, 175 Ill. 2d at

       227-28, 676 N.E.2d at 1309.



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¶6     Also:

       “ ‘The principle behind this legislation was that the business enterprise or industry should

       directly bear the costs of injury to its employees in the same manner as the enterprise has

       always borne the costs of maintaining and repairing its plant, machinery and equipment.

                                                    ***

            If [the Act] were construed to withhold immunity to a coemployee from a negligence

       action, the cost of injury to an employee of the business would be shifted from the

       employer, where the Act places it, to a fellow employee, where the Act does not place it.

       *** We cannot believe the legislature intended to permit the ultimate costs of employee

       injury to be borne by fellow employees, whether negligent or not.’ ” Ramsey, 175 Ill. 2d

       at 228-29, 676 N.E.2d at 1309 (quoting Madison v. Pierce, 478 P.2d 860, 863-64 (Mont.

       1970)).

¶7     “So far as persons within the industry are concerned, the *** Act eliminated fault as a

basis of liability.” Rylander, 17 Ill. 2d at 628, 161 N.E.2d at 818.

¶8     Section 5(a) of the Act, which is known as the exclusivity provision, expressly bars

common law actions for injuries that come within the scope of the Act, by stating “No common

law or statutory right to recover damages from the employer *** or the agents or employees of

*** [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.” (Emphases added.) 820 ILCS 305/5(a)

(West 2014). An employee can escape the exclusivity provision and proceed with civil litigation

against an employer and/or coemployee only if the employee can allege and prove the injury (1)

did not arise from his or her employment; (2) was not received during the course of employment;



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(3) was not accidental, such as an intentionally inflicted injury; or (4) was not compensable

under the Act, such as being discharged in retaliation for filing a claim for worker’s

compensation. Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d at 1226; Fredericks v. Liberty Mutual

Insurance Co., 255 Ill. App. 3d 1029, 1031, 627 N.E.2d 782, 785 (1994) (the broad immunity

granted by the exclusive remedy section of the workers’ compensation statute may be overcome

in actions involving intentional torts by the employer or claims for retaliatory discharge for filing

a compensation claim).

¶9     As a general rule, an accident occurring while an employee is traveling to or from work is

not considered to have arisen out of or occurred in the course of employment, for purposes of the

exclusive remedy provision of the Act. Hall v. DeFalco, 178 Ill. App. 3d 408, 413, 533 N.E.2d
448, 452 (1988) (citing Hindle v. Dillbeck, 68 Ill. 2d 309, 318, 370 N.E.2d 165, 169 (1977),

Stevenson Old Sales & Service v. Industrial Comm’n, 140 Ill. App. 3d 703, 705, 489 N.E.2d 328,

330 (1986), Sloma v. Pfluger, 125 Ill. App. 2d 347, 356, 261 N.E.2d 323, 327 (1970), and

Sjostrom v. Sproule, 49 Ill. App. 2d 451, 460, 200 N.E.2d 19, 24 (1964), aff’d 33 Ill. 2d 40, 210
N.E.2d 209 (1965)).

¶ 10   An exception to this rule exists, however, when the employer provides a means of

transportation to or from work or affirmatively supplies an employee with something in

connection with going to or coming from work. Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at 452

(citing Hindle, 68 Ill. 2d at 320, 370 N.E.2d at 169, and Sjostrom, 49 Ill. App. 2d at 460-61, 200

N.E.2d at 24). Employers are sometimes motivated to provide transportation for employees to

and from the workplace, i.e., vanpools, in order to recruit and retain employees or when parking

space at the job site is limited. Thayer v. State, 653 N.W.2d 595, 599 (Iowa 2002). Larson’s

treatise indicates the basis for imposing liability on the employer through the workers’



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compensation system is that the employer has controlled the conditions of transportation. 2 Lex

K. Larson & Thomas A. Robinson, Workers’ Compensation Law § 15.01, at 15-2 (2017) (“If the

trip to and from work is made in a truck, bus, car, or other vehicle under the control of the

employer, an injury during that trip is incurred in the course of employment.”) When the

employer takes control of an employee’s transportation, the employer “has extended the risks of

employment and therefore has extended the course of employment.” Torres v. Industrial

Comm’n, 137 Ariz. 318, 321, 670 P.2d 423, 426 (Ariz. Ct. App. 1983), Smithey v. Hansberger,

189 Ariz. 103, 104, 938 P.2d 498, 499 (Ariz. Ct. App. 1996) (nuclear power plant employee was

acting within scope of his employment while driving an employer-provided vanpool and

involved in a rollover accident, so only remedy available to his injured coworkers was workers’

compensation). “By providing a vehicle for traveling to and from work, the employer ‘ “has, in a

sense, sent the employee home on a small ambulatory portion of the premises.” ’ ” J.D. Dutton,

Inc. v. Industrial Comm’n, 584 P.2d 1190, 1192 (Ariz. Ct. App. 1978) (quoting 1 Arthur Larson,

The Law of Workmen’s Compensation § 17.10 at 4-129 (1978)); Johnson v. Farmer, 537

N.W.2d, 770, 772 (Iowa 1995) (“when an injury occurs while a worker is being transported to an

intended place of employment in a vehicle owned by the employer, the latter’s control over that

situation makes the vehicle an extension of the work place”) (citing 1 Arthur Larson, Larson’s

Workmens’ Compensation Law § 17.00, at 4-209 (1995)).

¶ 11   Illinois law provides numerous examples of this scenario, a few of which are helpful

here. In Hall, an accident occurred after an employee finished his shift at a McDonald’s

restaurant in Winnetka, Illinois, and the restaurant manager was driving him to the local CTA

train station. Hall, 178 Ill. App. 3d at 410, 533 N.E.2d at 450. As the truck approached the CTA

stop, it veered off the road and crashed into a building, causing them injuries. Hall, 178 Ill. App.



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3d at 409, 533 N.E.2d at 449. Although the manager was not driving a company vehicle, and the

employee perceived the ride as a personal courtesy rather than a job perk, one of the manager’s

daily work duties was to transport employees, and he did so in furtherance of McDonald’s

interests. Hall, 178 Ill. App. 3d at 410, 533 N.E.2d at 450. Thus, when the worker attempted to

sue, the courts determined the employee’s injury arose out of or in the scope of employment and

was compensable under the Act, rather than through tort litigation against the manager. Hall, 178
Ill. App. 3d at 414, 533 N.E.2d at 452.

¶ 12   Section 5(a) of the Act also barred negligence actions in Hindle regarding the death of

one crew member and serious injuries to another that occurred when their crew leader was using

her father’s pick-up truck as part of her regular duties to supervise and transport her teenaged

crew to and from the northern Illinois corn fields where they detasseled corn. Hindle, 68 Ill. 2d
309, 370 N.E.2d 165. When the crew leader applied the truck’s brakes on a gravel road, the

vehicle swerved, skidded, left the road, and struck a utility pole. Hindle, 68 Ill. 2d at 313-14, 370

N.E.2d at 166. The passengers were in the back of the pickup, which had been outfitted for them

with two lawn chairs and an old truck seat. Hindle, 68 Ill. 2d at 312, 370 N.E.2d at 166. The

crew leader was required to provide her crew’s transportation and received additional pay for the

transportation duties. Hindle, 68 Ill. 2d 309, 370 N.E.2d 165. The court indicated it was

irrelevant whether the crew members were paid for their time while being transported to or from

the corn fields (Hindle, 68 Ill. 2d at 320, 370 N.E.2d at 169), making this case similar to Hall, in

which the McDonald’s employee had clocked out before departing for the train station. Hall, 178
Ill. App. 3d at 410, 533 N.E.2d at 450. The employer controlled the conveyance and had

expanded the risks of employment. Hindle, 68 Ill. 2d at 320, 370 N.E.2d at 170. Common law




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negligence actions against the employer, the crew leader, and the truck owner were all barred by

section 5(a). 820 ILCS 305/5(a) (West 2014); Hindle, 68 Ill. 2d at 313, 370 N.E.2d at 166.

¶ 13   Another illustration of the employer-conveyance or employer-control principle is found

in Sjostrom, in which a civil engineer and a mechanical engineer employed in the Stockyards

neighborhood of Chicago were temporarily assigned to supervise construction of a new plant that

was south, near Kankakee, Illinois, and were reimbursed for travel expenses. Sjostrom, 49 Ill.

App. 2d at 453, 200 N.E.2d at 21. Their employer instructed them to commute together in either

a company car or personal car in order to avoid reimbursing a duplicate travel expense. Sjostrom,
49 Ill. App. 2d at 455, 200 N.E.2d at 22. During one such joint commute using the mechanical

engineer’s car, their vehicle collided with another, and they were both seriously injured.

Sjostrom, 49 Ill. App. 2d at 457, 200 N.E.2d at 23. The passenger sued his coworker; however,

the court found the passenger’s injuries arose out of and in the course of his employment and that

his common law action was barred by the Act. Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at

24. The passenger would not have been exposed to the “hazards of the road” but for his

employment and his employer’s provision for transportation to the job site. Sjostrom, 49 Ill. App.
2d at 460, 200 N.E.2d at 24. The court noted that employer-provided conveyance is a “well

recognized exception to the rule that travel to and from work is ordinarily not within the [Act].”

Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at 24. “ ‘This [well recognized] exception to the

general rule has been held to be as well established as the rule itself, and to be supported by

overwhelming authority ***.’ ” Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at 24 (quoting 99

C.J.S. Workmen’s Compensation § 235, at 837). On further appeal, the supreme court affirmed

and emphasized the distinction between employee trips that are based on personal decisions (not

compensable through workers’ compensation) and travel in which the employer has controlled



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the method of travel (exclusively compensable through workers’ compensation). Sjostrom, 33 Ill.
2d at 43, 210 N.E.2d at 211.

¶ 14   With these concepts in mind, we consider the allegations that were made in this case and

the rulings which led to this appeal.

¶ 15   Peng initially sued only the two other drivers in 2014, but filed amended pleadings to

include her employer and coworker. In her second amended complaint, Peng alleged that Guan

was operating the van within the scope of his employment and that this rendered their employer,

Royal Illinois, vicariously liable for Guan’s negligent driving. According to the authority we

discussed above, if Guan was acting within the scope of his employment when his negligence

injured Peng, she would have no remedy against him other than worker’s compensation benefits.

Royal Illinois and Guan sought dismissal on grounds that the workers’ compensation system was

the exclusive source of an employee’s relief against an employer and coemployee for a work-

related injury. The dismissal motion was supported by an affidavit from the assistant manager of

Royal Illinois, Linda Chen, who swore that Guan was driving the van for a work-related purpose

and acting within the scope of his employment when the accident occurred. Chen also swore that

the company had workers’ compensation insurance coverage in effect from Travelers Insurance.

The trial court dismissed the second amended complaint without prejudice and granted Peng

leave to amend.

¶ 16   In her third amended complaint, which is the version at issue on appeal, Peng omitted any

mention of Royal Illinois, sued the three drivers, and alleged only that she was a passenger in a

van that Guan was driving when he negligently caused the multi-vehicle accident with Nardi and

Kouk. Guan repeated his earlier arguments for dismissal. Peng, countered, however, that the

third amended complaint should survive because she and Guan worked together in the restaurant,



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but he had a separate job as a van driver; and Peng’s commute with Guan was not required by

her employer, was not compensated time, and was not work-related. The trial court apparently

found this argument persuasive. We cannot summarize the court’s reasoning because there is no

transcript of the hearing and the written order denying Guan’s motion to dismiss contains no

findings or basis for the denial. According to Peng, the trial court concluded that she was not in

the course of her employment at the time of the accident. The court scheduled discovery and

other deadlines in preparation for trial.

¶ 17   Less than a month later, Guan filed a motion to reconsider the denial of his motion to

dismiss, again arguing that the workers’ compensation system was the exclusive source of an

employee’s relief against her coworker for a work-related injury. Guan argued that it was

indisputable that Peng was an employee acting within the scope of her employment, and he

relied in part on “newly discovered” evidence that Peng had filed a worker’s compensation claim

which had been accepted by Royal Illinois and its insurer, Travelers Insurance. Guan tendered

correspondence from Travelers Insurance, confirming that Peng filed a worker’s compensation

claim and that the insurer opened a claim file, determined Peng’s injuries were compensable, and

paid some of her medical bills. Guan said it appeared Peng’s worker’s compensation claim had

been closed only because she failed to submit her additional medical bills, but that her lack of

diligence in complying with a requirement under the Act did not entitle her to maintain a tort

claim against her employer or co-employee. One of Guan’s other new exhibits was a screenshot

from a webpage maintained by the Illinois Workers’ Compensation Commission, which

indicated that Ming Cheng, whose name appeared on the Illinois accident report as one of

Guan’s passengers, had also filed a worker’s compensation claim and that Travelers Insurance

had settled the claim, thus conceding that Guan’s accident was work-related. Guan also attached



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previous    exhibits   (not “newly discovered”),        including Peng’s     interrogatory answer

acknowledging she “filed a [worker’s compensation] claim for and/or receive[d] *** worker’s

compensation benefits;” the accident report bearing Cheng’s name; and the Chen affidavit

indicating Guan and Peng were coworkers and that Travelers Insurance was the employer’s

workers’ compensation carrier.

¶ 18   The trial court did not immediately rule on the motion for reconsideration and instead

entered and continued it for approximately three weeks “for Plaintiff to show work comp case

dismissed.” According to Peng, this abbreviated statement indicates the trial court took the

unusual step of ordering Peng to dismiss her worker’s compensation action so as to proceed only

on her civil complaint. As discussed below, the record is ambiguous, at best, as to Peng’s

contention. The record shows that a few weeks later, the trial court was informed that Peng had

not dismissed her workers compensation claim and the parties presented arguments on the

motion to reconsider. At the conclusion of the hearing, the trial court granted Guan’s motions to

reconsider and dismiss.

¶ 19   On appeal, Peng first addresses the trial court’s decision to grant Guan’s motion for

reconsideration, then responds to the trial court’s ruling on the motion to dismiss, and then

concludes her appellate brief by arguing that it was an abuse of discretion for the trial court to

order her to dismiss her compensation claim before the Workers’ Compensation Commission.

Rather than jumping back and forth through the proceedings as Peng has done, in the interests of

clarity and efficiency, we will address the three rulings in their chronological order.

¶ 20   We start with Peng’s contention that the judge declined to stay the civil suit pending the

outcome of Peng’s worker’s compensation action and instead committed reversible error and

exceeded the scope of his authority by ordering her to dismiss her compensation claim.



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¶ 21     We find that Peng’s argument lacks support in the record, as there is no indication she

requested or was denied a stay of the proceeding and the record is ambiguous as to whether the

judge ordered Peng to dismiss her compensation claim. Unless Peng asked the trial court to enter

a stay and gave the trial court legal grounds for doing so, there is no basis for us to conclude that

the judge erred in rejecting her argument. Furthermore, the order of December 16, 2016,

indicates that the judge entered and continued hearing on Guan’s motion to reconsider to January

9, 2017, “for [Peng] to show work comp case dismissed,” which is neither a clear statement of

what occurred in December or why Peng would be returning in January “to show work comp

case dismissed.” If the judge required Peng to dismiss her compensation claim, we would expect

the judge to definitively state that requirement, rather than jotting an abbreviated note at the

bottom of a “CASE MANAGEMENT” form, which is used to enter deadlines for discovery

efforts and to note the purpose of upcoming case management conferences. The transcript of the

January hearing contains no mention of a stay and is ambiguous as to whether the trial court

mandated that Peng withdraw her claim before the Workers’ Compensation Commission.

Furthermore, Peng did not follow the purported order and did not dismiss her compensation

claim.

¶ 22     Guan’s appellate attorneys, who are new to the case and did not represent Guan in the

trial court, point out the uncertainty in the record and contend that Peng waived her appellate

argument by failing to first present it in the trial court either by written motion or at least during

the hearing on Guan’s motion to reconsider.

¶ 23     Any doubts that arise from an incomplete record are resolved against the appellant—the

party who bears the burden of tendering a sufficient record to support his or her arguments. Wing

v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 9, 70 N.E.3d 244. Moreover, our



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adversarial system does not allow Peng to introduce new arguments in a court of review. Pajic v.

Old Republic Insurance Co., 394 Ill. App. 3d 1040, 1051, 917 N.E.2d 564, 574 (2009)

(arguments raised for the first time on appeal are waived). We will not presume that the judge

erroneously denied a stay or exceeded the scope of the circuit court’s jurisdiction by ordering

Peng to take certain steps in the workers’ compensation forum. Without an adequate record

preserving the claimed error, we decline to presume that the error occurred. We presume that the

trial judge knew and followed the law, unless the record affirmatively indicates otherwise, and

we presume that the judge’s orders have a sufficient factual basis. Wing, 2016 IL App (1st)
153517, ¶ 9, 70 N.E.3d 244.

¶ 24   Peng’s contentions about the motion to dismiss are the heart of this appeal. The standard

of review for rulings on motions to dismiss pursuant to section 2-619 of the Code of Civil

Procedure is de novo. 735 ILCS 5/2–619 (West 2014); Foster v. Johnson, 378 Ill. App. 3d 197,

200, 882 N.E.2d 108, 110 (2007). Section 2-619 authorizes a defendant to raise certain defects

and defenses that negate a plaintiff’s cause of action. Foster, 378 Ill. App. 3d at 200, 882 N.E.2d

at 110. A section 2-619 motion provides a means of disposing not only of issues of law but also

of easily proven issues of fact. Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App.
3d 1065, 1072, 603 N.E.2d 1215, 1221 (1992). A section 2-619 motion may be supported by

affidavits; the products of discovery, such as interrogatory answers; documentary evidence not

incorporated into the pleadings as exhibits; testimonial evidence; or other evidentiary materials.

Barber-Colman, 236 Ill. App. 3d at 1068, 603 N.E.2d at 1219. Guan contended Peng was

seeking relief in the wrong forum. Peng argues the dismissal of her civil action was an error

because she has a right to sue a coemployee for an injury that occurred outside the course of her

employment. Peng contends she was commuting to work, and that she was not at her employer’s



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premises, not at her job site, not performing any duty within the scope her employment as a

restaurant worker, and not being compensated for her travel time. She also points out that her

employer did not require her to live in any specific area or use any specific means of

transportation to and from work and that she made those choices. Peng contends she is analogous

to the United Airlines flight attendant who injured her knee while a passenger, not on duty,

flying on a leisure travel pass from Denver to New York City, the day before she was to work on

a flight departing New York. United Airlines, Inc. v. Illinois Workers’ Compensation Comm’n,

2015 IL App (1st) 151693WC, 50 N.E.3d 661. In those circumstances, the flight attendant’s knee

injury did not arise out of or in the course of her employment and was not compensable through

the workers’ compensation system. United Airlines, 2015 IL App (1st) 151693WC, 50 N.E.3d
661. Peng also contends that she filed a compensation claim only after she filed this civil suit and

did so out of caution and on the eve of the statute of limitations because there was uncertainty as

to the proper venue for her recovery, as authorized by Rhodes and Wren, and that her decision to

preserve her right to worker’s compensation benefits did not negate her election of this civil suit.

Rhodes v. Industrial Comm’n, 92 Ill. 2d 467, 442 N.E.2d 509 (1982); Wren v. Reddick

Community Fire Protection District., 337 Ill. App. 3d 262, 785 N.E.2d 1052 (2002). She

contends that her employer’s unsolicited direct payment of some of her initial medical expenses

was not due to her affirmative election of worker’s compensation benefits and that the

employer’s fractional contribution toward the medical care and pay that she is owed by the

employer is insufficient to affect her legal rights. She contends Copass authorizes her to receive

worker’s compensation benefits yet also pursue a civil negligence action. Copass v. Illinois

Power Co., 211 Ill. App. 3d 205, 211, 569 N.E.2d 1211, 1215 (1991) (survivor’s acceptance of

uninitiated payments was insufficient to constitute an election of statutory benefits, so as to bar a



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wrongful death suit alleging spouse was killed by the intentionally tortious actions of employer

and coemployee).

¶ 25    We find that the facts and relevant law indicate that, regardless of Peng’s preference for

civil litigation against her allegedly negligent coworker, the workers’ compensation system is the

exclusive source of compensation from her employer and coemployee for an injury that occurred

during the course of her employment. Peng was traveling in an employer-controlled passenger

van when the van struck another vehicle on the interstate and was thus injured in a work-related

accident (Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at 452; Hindle, 68 Ill. 2d at 313, 370 N.E.2d

at 166; Sjostrom, 49 Ill. App. 2d at 460, 200 N.E.2d at 24), in what can be thought of as an

extension of her work site or a “a small ambulatory portion of the [employer’s] premises.”

(Internal quotation marks omitted.) J.D. Dutton, 584 P.2d at 1192. Peng was not compensated for

her commute time or required to use the restaurant vanpool to get to and from the restaurant, and

thus was not “on the job” in the traditional sense of that phrase, but she relinquished control over

the conditions of transportation when she climbed into a vehicle owned by her employer and

driven by her coemployee under the employer’s direction. Johnson, 537 N.W.2d at 772. Peng’s

employer controlled the conditions and risks of transportation and thus exposed itself to liability

for its employees’ injuries during their commute. Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at

452; 2 A. Larson, Workers’ Compensation Law § 15.01 (2014).

¶ 26   Peng is like the suburban McDonald’s shift worker in Hall, the corn detasselers in

Hindle, and the civil engineer in Sjostrom. Hall, 178 Ill. App. 3d 408, 533 N.E.2d 448; Hindle,

68 Ill. 2d 309, 370 N.E.2d 165; Sjostrom, 49 Ill. App. 2d 451, 200 N.E.2d 19. In each of these

examples, accidents occurred in an employer-controlled vehicle, either before the employee

arrived at or left the job site for the day. The McDonald’s employee in Hall finished his shift



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before he accepted a ride to the local train station, the corn detasselers in Hindle were never paid

for their time returning to town in the back of a pick-up truck, and the Chicago-based engineer in

Sjostrom was en route from home to work in another town where he would be supervising the

construction of a new plant. Hall, 178 Ill. App. 3d 408, 533 N.E.2d 448; Hindle, 68 Ill. 2d 309,

370 N.E.2d 165; Sjostrom, 49 Ill. App. 2d at 453, 200 N.E.2d at 21. In Hall, the McDonald’s

restaurant manager was performing one of his job duties when he transported restaurant

employees to the local train station; in Hindle, the crew leader was required by the employer to

supervise and transport her team members from the cornfields to town; and in Sjostrom, a

mechanical engineer and civil engineer were instructed to commute together so the employer

could avoid duplicate travel expenses. Hall, 178 Ill. App. 3d 408, 533 N.E.2d 448; Hindle, 68 Ill.
2d 309, 370 N.E.2d 165; Sjostrom, 49 Ill. App. 2d at 454, 200 N.E.2d at 21. Peng is no different

from these employees whose sole source of compensation from their employer and coemployee

was through the workers’ compensation system, rather than tort litigation. Hall, 178 Ill. App. 3d

at 414, 533 N.E.2d at 452; Hindle, 68 Ill. 2d at 313, 370 N.E.2d at 166; Sjostrom, 49 Ill. App. 2d

at 464, 200 N.E.2d at 26. See also Ramsey, 175 Ill. 2d at 224, 676 N.E.2d at 1307 (where it was

undisputed that coworkers were acting within the scope of their employment when the vehicle

one of them was driving collided with another vehicle, but the question was whether the other

driver/third party could recover contribution from a driver who was immunized by the Act’s

exclusivity provision). Furthermore, Peng’s situation is not analogous to the United Airlines

flight attendant whose employer was in the transportation business and whose commute on the

day she was injured was independent of her employment relationship with the airline. United

Airlines, 2015 IL App (1st) 151693WC, 50 N.E.3d 661. Royal Illinois was in the restaurant




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business and its vanpool was for its employees to get to and from work and was not open to the

general public.

¶ 27   Peng focuses on irrelevant facts when she points out that her employer did not require her

to live in the Chinatown or Bridgeview neighborhoods and she could chose any means she

wanted to commute to work from Chicago to Hoffman Estates. It makes no difference that Peng

was not at her job site, not performing any restaurant tasks, and not being compensated for her

time when she was being chauffeured to the restaurant by her coemployee in an employer-

controlled van. The authority discussed above indicates that none of these details affects Peng’s

right to compensation through the workers’ compensation system. The case law and treatise

indicate the dispositive facts for purposes of compensation are that the vehicle was an employer-

controlled conveyance for employee travel. It is undisputed that Royal Illinois provided the van

and driver and thus had control over the conditions of Peng’s commute. Therefore, Royal Illinois

is liable for Peng’s job-related injury through the workers’ compensation system and not a civil

suit. It follows that Guan is also immune from Peng’s common law negligence claim because he

was acting within the scope of his employment when his alleged negligence caused the collision

which injured Peng. Ramsey, 175 Ill. 2d at 227, 676 N.E.2d at 1308.

¶ 28   We also reject the suggestion that Peng is free to choose between the workers’

compensation system and the courts and has chosen to litigate. The Act provides that when an

employee’s injury is compensable through the Act, no common law or statutory right to

compensation is available. 820 ILCS 305/5(a) (West 2014). The injury need only be

compensable, and there is no statutory language indicating the employee must actually claim,

elect, or receive worker’s compensation in order to trigger the exclusivity provision. Even if

Peng never filed a compensation claim, according to the plain language of the Act, the Act



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applies to her injury, and section 5(a) precludes the current civil action. Regardless of whether

Peng first filed her lawsuit against Guan or her worker’s compensation claim against Royal

Illinois, and regardless of whether she has accepted any amount of benefits from Royal Illinois’s

insurer Travelers Insurance, Peng’s only source of compensation from any of them for her

injuries sustained in the vanpool accident is through a worker’s compensation claim.

¶ 29   We also reject Peng’s suggestion that she may maintain a civil suit because there is some

uncertainty as to the proper venue for her recovery. Rhodes and Wren indicate that nothing

prevents a cautious employee from filing both a worker’s compensation claim and a civil tort suit

to toll the statute of limitations where grounds for recovery are uncertain. Rhodes, 92 Ill. 2d at

470, 442 N.E.2d at 511; Wren, 337 Ill. App. 3d at 266, 785 N.E.2d at 1056. Nevertheless, an

injured employee cannot recover from the employer on both claims, and once the employee has

collected compensation on the basis that his injuries are compensable under the Act, the

employee is estopped from recovering damages on the basis that his injuries are not compensable

under the Act. Rhodes, 92 Ill. 2d at 470, 442 N.E.2d at 511; Wren, 337 Ill. App. 3d at 266, 785

N.E.2d at 1056. The record indicates that there is no uncertainty about Peng’s right to

compensation through the Act, and therefore, she may no longer maintain a duplicative civil

action seeking damages from her coemployee for the same injuries. More specifically, assistant

manager Chen’s affidavit attached to Guan’s motion to dismiss Peng’s second amended

complaint (which he also tendered in opposition to Peng’s third amended complaint) indicated

Guan was driving the van within the scope of employment, and that Royal Illinois had workers’

compensation coverage in effect through Travelers Insurance. Peng did not refute the Chen

affidavit with any contrary averment. The undisputed facts were sufficient to establish that

Peng’s exclusive form of compensation was through the Act and that her civil claim against



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Guan was not sustainable and should have been dismissed with prejudice. Furthermore, there is

no uncertainty about the law. The employer-conveyance principle is a sound, well-established

one in Illinois and other jurisdictions. Additional cases which hold that an injury arose out of and

within the course of employment, where an employee was injured in an accident while

commuting in an employer-provided conveyance, include: Smithey, 938 P.2d 498; Daniels v.

Commercial Union Insurance Co., 633 S.W.2d 396 (Ark. 1982); Securex, Inc. v. Couto, 627
So. 2d 595 (Fla. Dist. Ct. App. 1993); Adams v. United States Fidelity & Guaranty Co., 186
S.E.2d 784 (Ga. Ct. App. 1971); Hansen v. Estate of Harvey, 806 P.2d 426 (Idaho 1991);

Thayer, 653 N.W.2d at 600 (the zone of protection provided by workers’ compensation “may

extend to include injuries occurring even beyond the physical parameters of the employer’s

premises”); Kindel v. Ferco Rental, Inc., 899 P.2d 1058 (Kan. 1995); Receveur Construction

Co./Realm, Inc. v. Rogers, 958 S.W.2d 18 (Ky. 1997); McBride v. R.F. Kazimour

Transportation, Inc., 583 So. 2d 1146 (La. Ct. App. 1991); Watson v. Grimm, 90 A.2d 180 (Md.

1952); Lassabe v. Simmons Drilling, Inc., 743 P.2d 568 (Mont. 1987); Schauder v. Pfeifer, 570
N.Y.S.2d 179 (App. Div. 1991); William F. Rittner Co. v. Worrkmen's Compensation Appeal

Board, 464 A.2d 675 (Pa. Commw. Ct. 1983); Medlin v. Upstate Plaster Service, 495 S.E.2d 447

(S.C. 1998); Pickrel v. Martin Beach, Inc., 124 N.W.2d 182 (S.D. 1963); Vaughan’s

Landscaping & Maintenance v. Dodson, 546 S.E.2d 437 (Va. 2001); Doering v. Wisconsin

Labor & Industrial Review Comm’n, 523 N.W.2d 142 (Wis. Ct. App. 1994). In short, Peng does

not need to maintain her civil action as a backstop to her compensation claim.

¶ 30   Peng devotes a considerable portion of her appellate brief to argument that the court

abused its discretion by granting Guan’s motion to reconsider his motion attacking Peng’s third

amended complaint. The purpose of a motion to reconsider is to bring the court’s attention to (1)



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error in the court’s previous application of the law, (2) changes in the law, or (3) newly

discovered evidence that was not available at the time of the first hearing. Kaiser v. MEPC

American Properties, Inc., 164 Ill. App. 3d 978, 987, 518 N.E.2d 424, 429-30 (1987); Gardner v.

Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248, 571 N.E.2d 1107, 1111

(1991). A motion for reconsideration is directed at the trial court’s sound discretion and the

court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Robidoux v.

Oliphant, 201 Ill. 2d 324, 347, 775 N.E.2d 987, 1000 (2002).

¶ 31   For instance, Peng argues that the reconsideration motion was based on so-called “newly

discovered” evidence, when the material was actually available to Guan when he prepared his

motion to dismiss and thus Guan unfairly used the reconsideration process to compensate for his

inadequate preparation on the motion to dismiss. Peng argues that there was no change in the law

or error in the court’s earlier ruling, and that when a motion for reconsideration relies only on

newly discovered evidence, unless there is a reasonable explanation indicating evidence was not

available at the time of the original hearing, the trial court is under no obligation to consider it.

Kaiser, 164 Ill. App. 3d at 987, 518 N.E.2d at 429-30 (trial court which had denied fee request

that was not supported by adequate records was not required to reconsider on basis of

reconstructed time records); Gardner, 213 Ill. App. 3d at 248, 571 N.E.2d at 248-49 (trial court

could properly disregard new affidavit where plaintiff did not give reasonable explanation as to

why affidavit was not submitted prior to hearing). Peng contends Guan offered no explanation

for his failure to timely present the Travelers Insurance letter and the screenshot and was unfairly

given a “second bite at the apple.” Peng contends that it was a further abuse of discretion to grant

reconsideration and dismissal on the basis of a new legal theory, the election of remedies

doctrine, instead of the course of employment doctrine that was the basis for Guan’s motion to



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dismiss. Peng contends that she “has essentially been required to hit a moving target” in this

litigation and was substantially prejudiced by the court’s arbitrary and unreasonable combination

of two distinct legal theories. Peng’s third contention regarding the motion for reconsideration is

that a statement during the hearing reveals that the court treated one of Guan’s statements as a

judicial admission on Peng’s behalf, which defies the definition of the term admission, and that

Peng made no such admission.

¶ 32   We disagree with Peng’s premise that the court’s ruling was unfair and prejudicial to her

case. We find that the initial denial of Guan’s motion to dismiss the third amended complaint

was an erroneous application of the law and that the court corrected its error by granting Guan’s

motions for reconsideration and dismissal. The previous denial was error because, as discussed

above, the workers’ compensation system has always been Peng’s exclusive remedy for her

injuries regardless of whether she affirmatively pursued this civil suit against her coworker

instead of her worker’s compensation claim. Where an injury was to an employee and arose out

of and in the course of employment, the workers’ compensation system provides the employee’s

exclusive remedy. The fact that Peng was injured in an employer-controlled conveyance, not the

fact that she received benefits, was conclusive of her rights. Assistant manger Chen’s affidavit,

which Guan tendered in opposition to an earlier version of Peng’s complaint, was unopposed by

Peng and showed that she was injured in an employer-controlled conveyance and that the

dismissal was warranted. If there was any remaining doubt about Peng and Guan’s respective

rights, it was addressed by the “newly discovered” material, which showed that Peng and another

van passenger had applied for and received compensation under the Act. However, this “new”

evidence was not dispositive. The existing record established that Peng was injured during the




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course of employment, and therefore, the motions to dismiss and reconsider should have been

granted. Peng was not treated unfairly when the trial court corrected its error.

¶ 33   We also point out that the election of remedies theory was introduced into the

proceedings by Peng, not Guan, when Peng brought in Rhodes and Wren for the proposition that

she was entitled to file both a civil action and compensation claim while she was uncertain and

“cautious” about the proper forum. Thus, when the court made statements such as, “We’re not

going to litigate in two forums,” the court was responding to Peng’s arguments, rather than

unfairly granting the motion to dismiss on the basis of new theory which caught Peng by

surprise.

¶ 34   Furthermore, we reject the premise of Peng’s argument about the court’s statement,

“There’s a pending workers’ compensation matter which they’ve admitted in the course of.” The

hearing was primarily about whether there was any question that Peng’s injury occurred during

the course of her employment. Peng argues that Guan is the “they” who made the “admission”

and that the court improperly attributed the admission to Peng, who has never conceded that her

injury was work-related. The transcript discloses, however, that “they” was a reference to the

employer and its workers’ compensation insurer, not Guan, and that their admission was that

Peng was entitled to worker’s compensation benefits. The parties’ arguments and exhibits, such

as assistant manager Chen’s affidavit and the other documentation indicating passenger Cheng’s

injuries were treated as “in the course of” employment assured the court that the employer and its

insurer were not disputing that Peng was injured during the course of her employment and would

be compensated through the workers’ compensation system rather than a civil suit.

¶ 35   We come to the conclusion that none of Peng’s arguments about the reconsideration

ruling is well-grounded or persuasive, and we affirm the granting of reconsideration.



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¶ 36   Having considered and rejected Peng’s arguments, we affirm the granting of

reconsideration and the dismissal of Peng’s action as a matter of law.

¶ 37   Affirmed.




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