by its very nature joint defenses and communities we submit that it does as i indicated i represent the joint venture and i will state at the outset but the joint venture on this project which was the rehabilitation of the butt plug bridge in peoria illinois paid up all of the bills for the project including with the employee ease were employed does the joint venture agreement points out in paragraph twenty one by midwest foundation which had the responsibility a labor on the job the expenses incurred by midwest in that respect were then submitted to the joint venture and reimbursed by the joint venture here and this gets us to the heart of the issue as to why a joint exposure or joint liability also begets joint communities because by operation of law and by operation of the joint venture agreement itself the joint venture was responsible for the payroll and all payroll related expenditures as was the code joint ventur however some construction company they accepted that responsibility which meant assuming that midwest foundation did not meet the payroll or midwest foundation did not pay the workers compensation premiums that would be the obligation of the joint venture by operation of law and by operation of the agreement as well as the our blog asian of however some souls we are talking about employment possibly the key is to defining he employment by its various categories the only thing that the joint venture and however send didn't have was the right of supervision and control over those employ each they were obligated for all obligations related to payroll and the joint venture met and satisfied those therefore the joint venture actually paid the workers compensation premiums for the workers compensation benefits that were received by each of these you know employee needs it was not only obligated in that regard it satisfied that obligation this accident or before a long period at the time it contemporaneously with the month in which the premium fell due and with the payroll date in which there were payroll fell due payments were made multiple payments on a monthly basis now this brings me around to when we were all in law school and we were taking various courses on partnerships in corporations what we refer to today by lumping together as business organizations in a partnership and i happen to practice law in one and a joint venture is nothing but a partnership for a single purpose all of the revenue comes to the partnership all of the expenses come to the partnership the partnership writes the checks and at the end you see whether there's a profit or a loss in this case the split was sixty forty so if there was a profit sixty percent of the net after all of those expenses were paid would go to bed was foundation and forty percent to help person so you cannot pay out a partnership or a joint venture by their nature without also having the partnership or the joint venture receive all of the money and that is what the partnership agreement here says that's what the uniform or t venture agreement that's what the uniform partnership act requires and then at the same time having the entity of the partnership or the joint venture pay all of the expenses and that's exactly what happened in this case and the only testimony in the record is that both the c e o fole of the joint venture who was also the chief financial operations officer of midwest foundation say that yes the payroll expenses were submitted by midwives foundation to the joint venture and paid contemporaneously at the same time you have identical testimony from steve halvorson of helgerson construction company but if we want to get back a distance away from this and if we're trying to evaluate whether we really had a joint venture or not let me just put it this way if there was no joint venture and if the joint venture then wasn't responsible and didn't pay the bills i don't have any business being here because there wasn't an entity instead of having to cushions as defined by the u p a engaging jointly in a business for a profit you would have held person doing its own thing and midwest foundation doing its own thing and you wouldn't even have a joint venture and since i'm representing the joint venture i would be just as happy to be out on that basis but the facts are and the record and the wall requires the interpretation of those facts to be that you had here a joint venture which means that approval into a partnership because this court decided in smith versus metropolitan sanitary district is that a joint venture is a partnership ship for a single purpose you were head of common liability and joint and several exposure which means that the obligations of any of the three if we have a joint venture appear at the top we've got midwest foundation on the left but got a hell of a person on the right their liabilities are identical each can be sued for the obligations incurred by or on behalf of the other the uniform partnership act consistent with section twenty one of the joint venture agreement says specifically that's where one of the partners or one of the join ventures that incurs expenses here are payroll expenses those are the our blog ation of and will be paid by the joint venture or by the partnership we have here a lawsuit in which it is recognized that the workers compensation benefits were paid and are being received by these employees who have  plus the fact you have the agreement itself and you have the law and you've got to make a stretch of imagination to say that the agreement was not performed or that the law did not apply but we are perfectly willing and would welcome a should the court decide to read manta because i can point out with the cancelled it checks that the payroll expenses were made contemporaneously and the and this is where he indicated that should that prove to be an actual issue the question never came up until the appellate court raised it for some reason as if to imply that this was a charade of some sort which it to be clearly was not we known the last none the less put in the our brief to the court with citations to the record sufficiency of the motion nobody said hey we think that this is an artificial entity we think that you're trying to pull the wool over our eyes you didn't really make these payments at all that was not an issue it was accepted as versus park refining and foresight first as park refining then made reference to schmidt versus milburn brothers in schmidt versus millburn brothers the case turned on the fact that there was no joint venture in operation but tween the employers of the two parties that were involved in the vehicular accident the opinion says and it is clear that had there been actually a joint venture that they were both working on and they were coal we employ easing gaged in the business of the joint venture then the common liability common immunity defense in  in fact that outcome supports what we are saying here because this core the stablish a direct participation liability on the part of a parent corporation because of its own actions not veil it was not derivative liability instead it was direct an independent liability and that's why the workers compensation defense under sections five and eleven of the workers compensation act was not applied here you have shared in fight carious liability which means that the defense in the your community does in fact apply if you look at it realistically if you deprive or if the law deprives the joint venture of the ability to assert the immunity when it is jointly liable and bearing in mind a joint venture have no employees of its own when it is jointly liable the end result is going to be that there will be no immunity for anyone connected with the joint venture because as soon as an employee of a joint venture has a claim the joint liability of his own employer as a participant in the joint venture comes home to roost so if he gets a judgment against the joint venture of year that can be collected against midwest foundation that can be collected against the health person persons role as i'm sure you could tell from the briefs was of a joint venture or they were one of the constituent joint ventures midwest foundation and on the project was for all intents and purposes defined by the joint venture agreement it's the joint venture agreement that i believe is the real source of the legal arguments that we're making here before you today there's an implicit in the appellate court arguments in opinion and the briefing that's you've had the opportunity to review is that for some reason or another a joint venture may be a liability of pointing device i need to put that to rest and i think it's as quickly as i possibly  can the joint venture in a situation like this we're you have two companies involved in the road construction business these companies are required if they are going to ever have the opportunity to bid on large scale projects like the mcleod huge bridge project neither of them in and of themselves with their own assets have the ability to bond to satisfy the government so they must bond if you will in another way through a joint venture so that they can at least compete and bid against the walls constructions of the world the very large construction contractors so at the outset the joint venture has as its purpose the ability of businesses to engage in commerce to involve themselves in very significant construction projects managed by ultimately the illinois department of transportation this joint venture agreement the operative paragraph for the legal analysis i think again is paragraph twenty one and that is the aspect of the joint venture agreement that spells out the responsibilities as between helper son and midwest foundation and ultimately the joint venture for the payment of all payroll payroll taxes fringes and other employee expenses including but not limited to the establishment of workers compensation insurance and the payment of all premiums therefore  what you have is that is that is is a device whereby the joint venture is able to enter into the contract with i to complete the project the funds flow from i got to the joint venture the joint venture submit their claims for the costs that they've been incurred and asked that the joint venture reimburse them the joint venture then reimburse them if there's any profit it split according to the joint venture agreement in this case sixty percent of midwest forty percent to help percent if there is a loss they bear the loss in the same manner because it's a joint venture if there is an outstanding liability and sets the law in illinois treats join ventures as partners if there is a liability then the liability is co extensive and by that i mean to say midwest foundation shall be liable for all liabilities hell  liable for all liabilities the joint venture shall be why a bill for all liabilities all three entities are there to satisfy the call from those that say we are ow heart of the smith case and the moran case and what those cases held as i read them is that under that circumstance where you have the there is also another side and the other side of it is a simple premise again a partnership law what defenses one partner has he may have certain if he's on a couple things that i wanted to address just briefly in response to mr miller his first statement was that the joint venture by its very nature should get immunity from liability i don't think everybody in this state would agree with that i think everybody wanted joint venture card because apparently that's a get out free card mr miller had said that the joint venture had paid the bills in fact the joint venture agreement paragraph twenty one says it is the full and complete responsibility of midwest to infect pay the workers compensation bills there is a clause that allows for reimburse reimbursement of business related or labor related expenses but there is no evidence in this record and the testimony of mr helpless and the gentleman from midwest included there is nothing ere is nothing in the record that says that the joint venture paid a check specifically for a worker's compensation premium reimbursement nothing and there and to come to the supreme court and say i can show you canceled check when it's not in the record i don't believe it's appropriate the fact is there was a motion for summary judgment brought in this case it was the burden of the move of the movement to show that there is a matter of law they are clear and free from doubt there is no question of fact that they are entitled to s would show the fact that there was a reimbursement made in the fact is the record is the void of either these gentlemen coming in the attempt to say here's how it joint venture should work that's terrific but it's doesn't mean that that's how this joint venture work in fact the only time that you'll find out that this company wants to be a joint venture there's two his shoes one is one they want to work and the second is when they come before this court and they don't want to pay any money as a result of their negligence those are the two times we're going to find out that they're claiming to be a joint venture to reanalyze this  i believe that this case should be analyzed under the under the case that was decided before this court about a year ago named forsyth and obviously schmidt that was relied upon by foresight and i think foresight wasn't joint venture for so it was a case your honor that head key language in that situation a little was not a joint venture it did have key language in a situation that the exclusive remedy protection clause and the workers compensation act should be a shield not a sword in this instance the defendant is attempting use it as a sword they did not they did not hire these gentlemen it's one contradicted in the record that in their very own briefs that they brought before this court the joint venture points out the fact that these gentlemen were employees charade would they be entitled to the immunity that's provided to me yet if the joint venture itself actually paid the benefits for the workers compensation either directly or through reimbursement then i think they would be in a better position to claim that they're they're entitled to an exclusive remedy however in this instance as pointed out in paragraph twenty one it was midwest full and complete this is their agreement now not mine obviously to pay the workers compensation premiums under the point  found smith but smith in fact went through the analysis first before they found any any determination as to who actually paid the benefits who paid the comp premiums who actually would have paid out on the comp case moran went directly to all their joint venture well then i guess or and then the joint venture itself was looking for an immunity in that situation connor following up on justice garman's question i don't think you answered yes we follow partnership lord do we not i do i do not think  venture or there has to be a direct reimbursement of the workers compensation premium payments by the joint venture it cannot fall in the end that all of the liabilities are shared sixty forty and all of the profits are shared you're correct and the fact is that the fact that they say that's how the partnership should have worked nobody says that's how it did work nobody does say that there's a money trail here that was found in bears out the fact that these expenses were borne by the joint venture or by help or send a member there's two the fact is on this record we should win today were and were you not seeking remain and i was seeking no sir i don't believe we were we were seeking to win at that point and we did and i think this or third district did exactly what was appropriate what this defendant these defendants wanted to do they don't want to have an exclusive remedy they want to have no remedy if they didn't pay any benefits or they didn't take the obligations under the compact is the employer yet they get the shield of the employer where's the justice there what is what is the public service what is the public policy that is served there i would suggest to you that if that is the message of this court that people do not have to pay the benefits that an employer would normally pay and bear those obligations yet they get the benefit of not having any liability it would lead to general contractors teaming up with all their subs as a joint venture they can send over safety guys and vacation because there's really no burden on them to ensure a safe job say ever because now they're a joint venture why do they have to worry about policing a job site or making sure somebody safe or worry about carelessness on the job in fact they could negligently walk along a building and not guys off the room if and never have any liability because they're a joint venture that clearly cannot be the message of this one to get a contract that they could not otherwise get to earn money and two to come before this court and not painting money does anybody it would anybody believe that if these gentlemen were told so as we have a great job for you we're hiring out of the union hall and are going to come out here now going to work for midwest as an employer but i guess what if halverson does anything that will gently or carelessly or if a joint venture does anything negligently or carelessly we enjoy you we not a joint venture this is two companies they couldn't get a job and they had to go and they had to pretend to be one company so that they could apply a mistress rule told you that the beginning they needed the work that's how they applied for this because they could qualify and the fact is once they got to the job they believe that you can focus on one task or another but the key is that the joint venture actually works as a joint venture and entity that controls and that entity has to abide by what if they want the protection under the act your honor i base my position that they have to do it the should the other people who have nothing to do with providing that protection benefit from the from compensation situation this is a bridge work that's come coverage of workers this is not a worker's compensation case that brings this before your honor's court room this is a third party liability case where somebody wants to pretend to be the employer so they can say we paid the benefits when in fact they did not mr surulere had argued before the appellate court that the exclusive remedy was that was the key here but when asked by justice carter if the plaintiffs could have sued the join workers compensation case that the industrial commission mistress rules response on page forty two of that transcript was that it would have been resisted if they were the employer and the proper remedy is worker's compensation which is what they're claiming here why would they then resist that remedy the fact is the case was brought in the worker's compensation case against midwestern midwest only midwest and midwest only paid those benefits were they were paid in their name by a carrier nobody from the joint venture or stepped in it's a joke scuse me midwest don't by all means don't pay this because we're the employer include us on the form let us pay the benefit let us be the employer that step was never taken but to say to the appellate court that you would have resisted that their tourney would exist what they claim to be the exclusive remedy that tells me one thing they want to both ways go to the exclusive remedy that by the way we would have resisted but don't come over here and ask us for anything because we should have gone to the exclusive remedy that we would have resist it they want to both ways here and that's simply not the law the law is that it's supposed to be a shield and not a sword and a shield provides protection for those that have undertaken the obligation to deserve that protection of the shield it doesn't provide a sword for those who do nothing to deserve the protection to slash away the liabilities that they rightfully have in this case there's nobody coming in this courtroom saying the joint venture or help or some did nothing wrong there's nobody coming in to say hey we ran a safe job say all they're saying please protect us because we are the employer we don't have we don't have anything in the record that shows you we paid a check for premiums in fact we don't have testimony that says we paid a check for premiums there's a question of fact here and to bring it back to the beginning completely by their contract to pay the benefits they have a right to reimbursement basically at the discretion of the joint venture that doesn't mean anybody paid it so the fact that they have a right to reimbursement does not mean that it was completed and the law as i understand forsyth and third there are protections under the act for two you're better for a number of reasons if you're the employer number one you don't pay pain and suffering ok number two if you do find a third party who is responsible under the worker's compensation act they get to recover herself to seventy five percent of their money out of the person who is responsible my point is it's a little bit narrower than my servant is that your argument venturers would be able to benefit under american somehow the injured employee would be worse off in the third party third parties who may be sued or worse off doesn't fit same argument apply just to the single employer lawyer or third parties will not be worse off third parties are being great shape because every third party would now become a joint venture every general contractor would team up with every one of their subs form a joint venture file a piece of paper that says their joint venture and that all you subs you pay your company fits and we'll give you the right to reimbursement at our discretion we may never pay it but we'll give you that right and guess what we're not going to pay any benefits towards the comp and we're going to give you work the you might otherwise not otherwise get makes you allow allowed to get more work and more employment for your guys and more profit and at the end of the day we're not responsible so we don't have to want to say the job said it's all on you no matter what they've ever promised an owner in these the contracts that gives them all the responsibility for safety and the policing of the jobs they could ignore all of it because they  pretend they're the employer all that this this does and i don't suggest that that no joint venture should be a lot of her section two it correctly if you're a joint venture anyone protection under the law hire the people pay to come premiums don't leave it a question this is a summary judgment case where we have one fatality two others that are on related and three guys that plunged sixty feet into a river one of them gets her opponent stuck to the bottom of the river to drowned until his friend comes and pulls him out the companies here who were negligent who paid nothing to protect these workers before or after their injury and they're trying to pretend that there's something that they're not that should not be allowed and it's my position that the public policy that this court would set second war story could happen in any worker's compensation this is not going to prison prevent all injuries but it will promote safety he cuz a people are not allowed to put up sham joint ventures and  in course your position is that the record is inadequate to demonstrate that yes i believe it is it is certainly if you were to find that it was an adequate then i suppose the remedy would be a rematch but the fact is that their burden was to bring the motion they were to bring the evidence they brought whatever evidence they had and now were left before an initial court an appellate court and now the supreme court of the state of illinois they still haven't shown a check to anybody there's nothing in this record that it has been  demonstrative of their position and the fact is there's not one trail that can show that one penny left the bank account of the joint venture or helgerson or any of their carriers to compensate any of the widows or injured injured individuals in guys are so in control of the work they can't get out that way they have to go on pretend to be the employer to get out that way they were never going to get on a four fourteen issue which is the construction negligence issue they were so entrenched in controlling admissions of what they did what they could do how they could stop the work how they had responsibilities to stop the work they had to go the other route and say you know what we're so much able to stop the work and be in control of this we better pretend we're the employer and that's how it is that's how this came to light and that's how the arguments were brought under this exclusive remedy rather than under a for fourteen trying to escape liability for a lack of dignity that's that's where we're at the fact is we've got to negligent companies here who took a prop make a promise to run the job safely they didn't three guys died other guys g injured and now they're here before this court saying this shouldn't be held accountable for anything if they did it correctly they could they can receive the benefit of this court with no protection but to allow somebody who doesn't promotes other people to do the same and that promotes unsafe job sites and you going to have guys that are getting hurt all over the state that we don't need there any other questions and address with sort of the way so thank you very much f this in my opinion was a non sequitur of an argument addressed going back let me say we filed our motion for summary judgment based upon this court's decision in the facts that these employees of the midwest foundation were engaged in doing work on the joint venture project and that they were injured and was saving workers compensation benefits we attached the joint venture agreement there was no response to the motion that indicated that this was a sham that this did not operate as a joint venture there was no indication in the record any place that this joint venture didn't on operate as a true and legitimate joint venture in fact counsel makes the argument that these monies were not paid they didn't raise the issue and say monies weren't paid the payroll and the workers compensation premiums weren't paid the record shows that the testimony of barely roman and the joint venture would reimburse the companies for their wage and labor expenditure that is correct wage and labor expenditure those reimbursements which were required by section twenty one of the agreement and by section beat team b of the uniform partnership act according to this record were actually made as if that were an issue that was before the trial court it wasn't until we got to the appellate court that anybody said well were these payments actually made the only indication in the record is what i just indicated the testimony of barry wilmot and steve however said but we submit that the issue is not whether the payments were actually made go back to the premises of the business organizations one o one what did we all learn if you want to shield yourself from liability you was a corporate form you don't use a partnership form if you use a partnership or joint venture form then by definition and by statute and by agreement you are jointly and severally liable for all obligations this isn't a device to shield the participants or members of a jo  venture from liability in fact they have accepted liability because they are jointly and severally responsible for the payment of workers compensation in the event that any one of them for the payroll they have extended themselves by saying any obligation that she incurred or encountered in doing this joint venture product is the joint and several obligation of each of us that is  when they resisted as i indicated they never raised anything other than saying this was a legitimate to a joint venture but the joint venture shouldn't be entitled and calibers and shouldn't be entitled to but a summary judgment everybody that is a fiction of counsel's own making but if we engage in what he just argued the midwest foundation didn't control the project that they didn't have any employees and therefore could not control the project the joint venture isn't a proper party defendant to begin with to the contrary this is a joint venture to be treated as a partnership with joint liability and the end result is that if the joint venture or hell person are held liable whatever that liability is can be collected from any of the joint venture which would the public policy argument to the extent to of saying this is a contract or of liability i point out this is an expansion of liability why because it workers compensation benefits let's say are paid by midwest foundation then helgerson is liable for them as is the joint venture so you get back and you look at the ration elf behind the worker's compensation act as we do in our brief and that is the exchange of an automatic exposure for any injuries or rising eligible for in the course of employment without fault and that is what heechul of these parties have agreed to do they have expanded the workers compensation base each of them is obligated for all of those benefits he's arguing that there is a fortune would be someplace that somebody is going to have an accidental injury that will result in a recovery in excess of the amount of worker's compensation whether or not that happens is not of a moment in the context of this case because the joint venture in the code joint ventures are jointly and severally liable for any and all legitimate exposures and to the extent that that liability pertains to one we submit to must pertain to all and that's what they did this court decided in smith vs metropolitan and that's what have two questions mr o'connor made the point about and i think you may have already answered this but make sure we get a clear understanding that in terms of these same employees were the subject of the you know the plaintiffs the states whatever the case may be that there was a workers compensation settlement there was a claim brought the responded lawyer was midwest got the names correct and that the settlement contracts would have reflected a settlement between those individual employees representatives and westville is that correct that would be correct and and under your theory though you don't think you have to be named on those settlement contracts they have the compensation am so yeah absolutely not because what you're looking at is the ultimate to liability and who's going to pay it so you run all expenses through the joint venture and that would take into account the workers compensation premiums which resulted in the payment of the worker's compensation claims that came out on the settlement contract my second question is really twofold to go back to what you made reference to i thought you were maybe reading maybe quoting i'm not sure about the testimony in the deposition from is it roman or that was rolling but immediately below it i didn't want to take the  effect it did you read it was that a quote that was a quote and his statement was that they would make reimbursements as in the future as opposed to that they had the quote is that when it came time to get the joint venture from payroll what was done is each individual company would pay their employees and the joint venture would reimburse the companies for their wage and labor expenditure and i'm sure that is correct so you know talking about the ongoing course of the conduct to supplement the record on actually proof of payment and my question is what's in this affidavit supplement that was not in the record at the time of the summary judgment hearing that's right that's right there wasn't any reason for it but as the court will recall we filed a motion particular individual employees as was the pro rata share of the workers compensation premiums but is mr olcott is my last question correct or not in the record there is either no bill nor a payment shows that was paid whether it's a lump or several things but nothing to reflect that it was a compensation thing that's that's true because the issue never came up it wasn't raised in the resisting the motion for summary judgment it was accepted that the motion for summary judgment was sufficient on its face nobody said hey procedurally you've got to say table out there you've got the dog in that but you don't have the tail proves that you actually made the payments that was not an issue and never was an issue at this level turned it into an affirmative obligation that we were supposed to divine out where the existing case law at the time was smith and and it was an issue so maybe we weren't as good a way years as we thought we were because we didn't see that issue coming and it became important now especially in light of the foresight case with the concept of tracing the premium i don't know whether there's any import that this court will attach to  hypothetical i can't answer that question because it is hypothetical and then i went on and surmised in the in the world of modern litigation i would say to you that it would have been resisted knowing how to just knowing how contentious th generally who do work their employers and go through that process of the benefits the minute the benefits remained unpaid after an award recover them from the joint venture recover them from alderson because by gosh and by golly coextensive liability in the end for those i went more than a minute i apologise