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Equistar Chemicals11/3/2004
he co-employee. See Doyle, 101 Ill. 2d at 10, 461 N.E.2d at 386. Instead, the plaintiff bears the burden of proof to show that the Act's exclusive remedy provision does not apply. Fregeau v. Gillespie, 96 Ill. 2d 479, 483, 451 N.E.2d 870, 871-72 (1983). Therefore, section 5 of the Workers' Compensation Act presents a statutory bar to a negligence claim between co-employees unless the exception applies. Ultimately, and usually, whether the injury arose out of the employment and occurred in the course of employment is a question for the trier of fact. See Kancevicius v. Moyes, 132 Ill. App. 2d 86, 90, 269 N.E.2d 328, 331 (1971).
Achieving the purpose of the Contribution Act requires a determination of fault on the merits for all actors who have not been released by a good faith settlement. BMW was not released by Bromberek's settlement. Under the scheme established by the Workers' Compensation Act and the cases interpreting its operation, the employer of the plaintiff is substituted (on a theory of vicarious liability) for any other of his employees whose negligence would have rendered them subject to liability to their co-worker but for the Workers' Compensation Act's insulation of them from suit. In the context of this case, it is BMW's obligation to litigate the fault of Bromberek. Because of the trial court's order granting summary judgment that has not been done. The order must, therefore, be reversed.
CONCLUSION
For each of the foregoing reasons, the judgment of the circuit court of Grundy County granting summary judgment in favor of Equistar and against BMW is reversed, and the cause is remanded for further proceedings consistent with this opinion.
HOLDRIDGE, P.J. and LYTTON, J., concur.
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