Illinois Appellate Court Reverses Dismissal of Intervention Petition Based on Late Filing

Teresa Mroczko was employed by A & R Janitorial to do custodial work. On Aug. 17, 2012, she was injured while working at an Illinois Blue Cross/Blue Shield building. A desk, which had been moved during the renovation of the building, fell on her and she was injured.

Pepper Construction Co. had been hired to renovate the building and had subcontracted for replacing the carpets to another defendant in this case, Perez & Associates. Perez had moved the desk in the course of replacing the carpets.

Mroczko filed a workers’ compensation claim against A & R Janitorial, her employer and was granted relief, although the claim is currently being reviewed on appeal.

A & R exercised a portion of the Illinois Workers’ Compensation Act, which allows employers to be indemnified for sums paid to injured employees by the third party who caused the injuries if the employee has failed to file suit within three months of the statute of limitations expiring.

On Aug. 14, 2014, three days prior to the statute of limitations expiring, Mroczko had not yet filed suit and so A & R filed its complaint that day, seeking indemnification damages and damages for Mroczko’s pain and suffering.

On June 15, 2015, Mroczko filed suit against Pepper, Perez, Blue Cross and Interface America Inc. for injuries she sustained 34 months prior. Mroczko argued that her suit was subject to a four-year statute of limitations because her injuries “resulted from the construction of an improvement to real property.”

The trial court disagreed, finding that her injury was not the result of construction work. Her claim was dismissed with prejudice. She did not appeal that decision.

On Nov. 10, 2016, Mroczko petitioned to intervene in A & R’s lawsuit against Pepper and Perez maintaining that she was not adequately represented because A & R was only seeking enough damages to indemnify itself, not the maximum amount recoverable.

Under the Workers’ Compensation Act, any award A & R received beyond the amount it paid to Mroczko would go to her. A & R argued that they were already incentivized to seek the maximum amount of damages as Mroczko’s workers’ compensation claim was ongoing. Further, to do otherwise would leave A&R at risk of not being fully indemnified.

Pepper argued that Mroczko’s petition to intervene should be barred for the late filing under res judicata as it had been dismissed on the merits as being beyond the statute of limitations. The trial court agreed with Pepper and denied Mroczko’s petition to intervene. She appealed.

While the appeal was pending, A & R and the other defendants reached a settlement agreement whereby they paid A & R $850,000 and the case was dismissed with prejudice pending the resolution of Mroczko’s petition. The appellate court found that the trial judge had erred in denying Mroczko’s petition to intervene. The appellate court cited precedent established under Section 2-408(a)(2) of the Illinois Code of Civil Procedure, for intervention as a matter of right “a trial court’s discretion is limited to determining timeliness, inadequacy of representation and sufficiency of interest; once these threshold requirements have been met, the plain meaning of the statute directs that the petition be granted.”

Accordingly, the Illinois Appellate Court reversed the circuit court’s decision and remanded the case for proper evaluation of the Mroczko petition to intervene taking into account the factors specified in the appellate court opinion.

A & R Janitorial, as Subrogee of Teresa Mroczko v. Pepper Construction Co., et al., 2017 IL App (1^st) 170385 (December 27, 2017).

Kreisman Law Offices has been handling work injury lawsuits, construction injury lawsuits, truck accident cases, forklift injury lawsuits, product liability cases, pharmaceutical defect lawsuits and wrongful death cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Flossmoor, Glencoe, Harvey, Blue Island, Burbank, Calumet Park, Chicago Heights, Chicago Ridge, Country Club Hills, Crete, Des Plaines, Dixmoor, Northlake, Northbrook, Niles, Orland Hills, Olympia Fields, Willow Springs, Thornton, Tinley Park, Rolling Meadows, Palos Heights, Park Forest, Chicago (Sheffield, Southport, UIC, West Loop, Wildwood, Kelvyn Park, Kilbourn Park, Koreatown, Gladstone Park, Edison Park, Canaryville, Bridgeport, Belmont Gardens, Back of the Yards, Near North Side, Pilsen, Ravenswood Manor), Highwood, Roseland, Round Lake Beach, Western Springs and Evergreen Park, Ill.