Illinois Official Reports

Appellate Court

West Bend Mutual Insurance Co. v. TRRS Corp., 2019 IL App (2d) 180934

Appellate Court 

Caption

WEST BEND MUTUAL INSURANCE COMPANY, PlaintiffAppellee, v. TRRS CORPORATION, COMMERCIAL TIRE 

SERVICES, INC., and GARY BERNARDINO, Defendants (Gary 

Bernardino, Defendant-Appellant).

District & No. Second District 

Nos. 2-18-0934, 2-18-1009 cons.

Filed March 1, 2019

Decision Under 

Review

Appeal from the Circuit Court of McHenry County, No. 18-MR-798; 

the Hon. Thomas A. Meyer, Judge, presiding.

Judgment No. 2-18-0934, Reversed and remanded.

No. 2-18-1009, Appeal dismissed.

Counsel on

Appeal

Robert T. Edens, of Robert T. Edens, P.C., of Antioch, for appellant.

Thomas F. Lucas and Kristin D. Tauras, of McKenna Storer, of 

Chicago, for appellee.

Panel JUSTICE HUTCHINSON delivered the judgment of the court, with 

opinion.

Justices Schostok and Spence concurred in the judgment and opinion.
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OPINION

¶ 1 This consolidated interlocutory appeal concerns the propriety of a circuit court’s order 

staying the proceedings on a claim filed before the Illinois Workers’ Compensation 

Commission (IWCC). Plaintiff, West Bend Mutual Insurance Company (West Bend), filed a 

declaratory judgment action in the circuit court of McHenry County, seeking a ruling that it 

had no duty to defend or indemnify defendants TRRS Corporation (TRRS) and Commercial 

Tire Services, Inc. (Commercial Tire), against an IWCC claim filed by defendant Gary 

Bernardino. Shortly thereafter, West Bend filed an emergency motion in the circuit court, 

requesting a stay of the IWCC proceedings pending the resolution of the declaratory 

judgment action. Relying on the doctrine of primary jurisdiction, and over Bernardino’s 

objection, the circuit court granted West Bend’s motion and entered an order staying the 

IWCC proceedings. Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), 

Bernardino filed an interlocutory appeal in case No. 2-18-0934. Bernardino subsequently 

filed a motion to vacate the circuit court’s stay order. When the circuit court continued the 

hearing on the motion, Bernardino filed another Rule 307(a)(1) interlocutory appeal in case 

No. 2-18-1009. We granted Bernardino’s motion to consolidate the two appeals. We now 

reverse the circuit court’s stay order in appeal No. 2-18-0934, and we dismiss appeal No. 

2-18-1009 for lack of jurisdiction.1

¶ 2 I. BACKGROUND

¶ 3 The record reflects that Bernardino sustained an injury from a forklift accident in April 

2017, during the course of his employment with TRRS and Commercial Tire (collectively the 

employers), which required him to undergo rotator cuff surgery. The accident occurred at the 

employers’ facility located in Lake in the Hills, one of several such facilities that the 

employers operated throughout the state. According to West Bend, the employers chose to 

cover Bernardino’s lost wages and medical expenses relating to his surgery without ever 

reporting the injury to West Bend. However, Bernardino later learned that he needed a 

follow-up surgery, prompting him to file an “Application for Adjustment of Claim” in the 

IWCC on March 29, 2018. More than five months later, on September 12, 2018, Bernardino 

filed a petition before the IWCC for an immediate hearing under section 19(b) of the 

Workers’ Compensation Act (Act) (820 ILCS 305/19(b) (West 2016)) and for penalties for 

unreasonable and vexatious delay under sections 16 and 19(k) of the Act (id. §§ 16, 19(k)).

¶ 4 On October 2, 2018, West Bend filed a complaint for declaratory judgment in the circuit 

court of McHenry County. The employers and Bernardino were each named as defendants. 

West Bend alleged that it had written a workers’ compensation insurance policy for the 

employers that would have covered Bernardino’s IWCC claim if the employers had not 

violated the terms of the policy. West Bend alleged that, by failing to provide proper notice 

of Bernardino’s injury and paying for the expenses related to the first surgery, the employers 

voluntarily decided to forgo coverage. Accordingly, West Bend sought a declaration that it 

1 We note that, although TRRS and Commercial Tire have both filed appearances in this 

consolidated appeal, neither party has filed a brief. 
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had no duty to defend or indemnify the employers in connection with Bernardino’s IWCC 

claim. 

¶ 5 On October 5, 2018, the IWCC scheduled a hearing on Bernardino’s petition, to take 

place on November 19, 2018. However, on October 9, 2018, West Bend filed an emergency 

motion in the circuit court to stay the IWCC proceedings until the declaratory judgment 

action was resolved. On October 12, 2018, before Bernardino filed a response and apparently 

without Bernardino’s counsel present, the circuit court granted West Bend’s emergency 

motion to stay the IWCC proceedings. 

¶ 6 On October 25, 2018, Bernardino filed an emergency motion in the circuit court to vacate 

the stay order, arguing that the IWCC was the proper venue for a ruling on the coverage issue 

raised in West Bend’s declaratory judgment action. West Bend filed a response relying 

largely on Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284 (1994), and Hastings Mutual 

Insurance Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751. West Bend argued 

that, pursuant to Skilling, the circuit court had primary jurisdiction to rule on the legal issues 

raised in the declaratory judgment action. Furthermore, West Bend argued, Ultimate 

Backyard established that the circuit court should stay the IWCC proceedings until such a 

ruling was entered. In his reply, Bernardino asserted for the first time that West Bend’s 

declaratory judgment action might be rendered moot, as he had reason to believe that the 

policy in question did not provide any coverage for the employers’ Lake in the Hills location. 

¶ 7 On November 1, 2018, the circuit court conducted a hearing and explained at the outset 

that it was vacating the stay order for the purpose of considering the arguments raised by 

Bernardino and West Bend. The court rejected Bernardino’s argument that the IWCC was the 

proper venue for West Bend’s insurance coverage dispute. Thus, the court ruled as follows:

“I’m vacating the original order staying so that we could proceed with this 

hearing and I am—because I wanted to proceed on the merits. I thought procedurally 

that was appropriate, and—but I am now reinstating the stay after hearing the 

argument because I believe that this is ultimately a question of law and more 

appropriately brought before the court than the workers’ compensation commission, 

and that this court has primary jurisdiction over the issue regarding the coverage 

following the clam of late notice.” 

The court proceeded to enter an order granting West Bend’s emergency motion to stay the 

IWCC proceedings and scheduling a hearing for January 7, 2019, for status on the 

completion of written discovery.

¶ 8 On November 6, 2018, Bernardino filed a motion in the circuit court to vacate the stay 

order dated November 1, 2018. Aside from arguing that the stay was altogether improper, 

Bernardino stressed his theory that the late notice issue raised by West Bend was moot 

because the disputed policy did not cover the employers’ Lake in the Hills location. 

Bernardino observed that, although the policy covered the employers’ other Illinois locations, 

it did not specifically list the Lake in the Hills location. Bernardino argued that, at the very 

least, the stay should be “limited to the issue of determination of coverage based on notice, 

specifically [authorizing] the IWCC to make threshold determinations regarding the 

existence of coverage, but not to make findings of fact regarding notice being given to [West 

Bend].” 

¶ 9 On November 8, 2018, Bernardino filed his notice of a Rule 307(a)(1) interlocutory 

appeal from the stay order dated November 1, 2018, in appellate case No. 2-18-0934.
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¶ 10 Also on November 8, 2018, the circuit court conducted a hearing on Bernardino’s motion 

to vacate the stay order dated November 1, 2018. West Bend refuted Bernardino’s theory and 

maintained that, but for the late notice, coverage would indeed apply based on the 

“Locations” provision in the policy, which established that it applied to each of the 

employers’ locations in Illinois. Undeterred, Bernardino asserted that he anticipated 

obtaining a certificate from the National Council on Compensation Insurance (NCCI), stating 

that its database contained no record of insurance being provided for the work site where he 

was injured. Bernardino argued that this would violate certain technical requirements under 

the Act for establishing the existence of insurance coverage and asserted that the issue should 

be decided by the IWCC. The court noted the conundrum of West Bend contesting an 

opponent’s argument that furthered West Bend’s own interests. The court indicated that, even 

if Bernardino obtained the aforementioned certificate, greater weight would likely be given 

to West Bend’s position; i.e., if West Bend did not prevail on its argument regarding the late 

notice, then coverage would indeed apply. The court was also reluctant to limit the terms of 

the stay, per Bernardino’s alternative request, reasoning that West Bend would be placed “in 

limbo” if the IWCC proceedings continued before there was a ruling on the issue of 

coverage. The court decided that it was appropriate to continue Bernardino’s motion to 

vacate the stay order dated November 1, 2018, stating as follows: 

“Where we’re at right now, I think we have too many variables for us to do 

anything significant today other than to continue your motion to January 7th. We’ll 

wait to see what reports you get, but I’ve told you the problems I have with relying on 

them.”

¶ 11 On December 10, 2018, Bernardino filed his notice of a Rule 307(a)(1) interlocutory 

appeal from the continuance order dated November 8, 2018, in appellate case No. 2-18-1009. 

On December 12, 2018, Bernardino filed a motion to consolidate the two appeals, which we 

granted.

¶ 12 II. ANALYSIS

¶ 13 We begin with our independent duty to examine our own jurisdiction. State Farm Mutual 

Automobile Insurance Co. v. Hayek, 349 Ill. App. 3d 890, 892 (2004). Rule 307(a)(1) 

provides that an appeal may be taken from an interlocutory order “granting, modifying, 

refusing, dissolving, or refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) 

(eff. Nov. 1, 2017). Our supreme court has held that the issuance of a stay of an 

administrative order pending judicial review constitutes an injunction for purposes of appeal 

under Rule 307(a)(1). Marsh v. Illinois Racing Board, 179 Ill. 2d 488, 496-97 (1997); see 

also Rogers v. Tyson Foods, Inc., 385 Ill. App. 3d 287, 288 (2008) (“A stay is considered 

injunctive in nature, and thus an order granting or denying a stay fits squarely within Rule 

307(a).”); Lundy v. Farmers Group, Inc., 322 Ill. App. 3d 214, 216 (2001) (“Courts have 

treated the denial of a motion to stay as a denial of a request for a preliminary injunction.”). 

¶ 14 Here, the trial court’s stay order dated November 1, 2018, is reviewable under Rule 

307(a)(1), and Bernardino perfected his appeal in case No. 2-18-0934 by filing a notice of an 

interlocutory appeal within 30 days of the entry of the order. See Ill. S. Ct. R. 307 (eff. Nov. 

1, 2017). We note that Bernardino’s notice of an interlocutory appeal in case No. 2-18-1009 

would also have been timely, despite being filed 32 days after the continuance order dated 

November 8, 2018, as the thirtieth day after the entry of the order fell on a Saturday. See 
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Shatku v. Wal-Mart Stores, Inc., 2013 IL App (2d) 120412, ¶ 9. However, the continuance of 

a hearing on a motion to vacate a stay is not equivalent to the denial of the motion. Oscar 

George Electric Co. v. Metropolitan Fair & Exposition Authority, 104 Ill. App. 3d 957, 962 

(1982). On November 8, 2018, the circuit court was clear that it was continuing, rather than 

denying, Bernardino’s motion to vacate the stay order dated November 1, 2018, so that 

Bernardino could gather the anticipated materials from the NCCI. Accordingly, the order 

dated November 8, 2018, states only that Bernardino’s motion was “entered and continued to 

January 7, 2018, at 9:00 a.m.” Because the order did not grant, modify, refuse, dissolve, or 

refuse to dissolve or modify an injunction, it is not reviewable under Rule 307(a)(1). Case 

No. 2-18-1009 is therefore dismissed for lack of jurisdiction.

¶ 15 We now turn to the stay order dated November 1, 2018, in case No. 2-18-0934.2

Ordinarily a circuit court’s decision to grant or deny a motion to stay will not be overturned 

on appeal absent an abuse of discretion. Sentry Insurance v. Continental Casualty Co., 2017 

IL App (1st) 161785, ¶ 65; TIG Insurance Co. v. Canel, 389 Ill. App. 3d 366, 372 (2009). 

Under this standard, we consider whether the circuit court acted “arbitrarily without the 

employment of conscientious judgment or, in light of all the circumstances, exceeded the 

bounds of reason and ignored recognized principles of law so that substantial prejudice 

resulted.” Allianz Insurance Co. v. Guidant Corp., 355 Ill. App. 3d 721, 730 (2005). 

Bernardino notes, however, that the circuit court made no factual findings in this case and 

instead determined that the stay was appropriate as a matter of law pursuant to the doctrine of 

primary jurisdiction. He thus requests de novo review. See Continental Western Insurance 

Co. v. Knox County EMS, Inc., 2016 IL App (1st) 143083, ¶ 15 (reviewing de novo the issue 

of whether the circuit court properly applied the doctrine of primary jurisdiction).

¶ 16 We agree with Bernardino that our standard of review is de novo. Our supreme court has 

explained that the scope of review in an interlocutory appeal is normally limited to an 

examination of whether there was an abuse of discretion in granting or refusing the requested 

relief. In re Lawrence M., 172 Ill. 2d 523, 526 (1996). 

“However, where the question presented is one of law, a reviewing court determines 

it independently of the trial court’s judgment. [Citation.] Moreover, to the extent 

necessary, a reviewing court may consider substantive issues in order to determine 

whether the trial court acted within its authority.” Id.

¶ 17 The circumstances contemplated by Lawrence M. are present here. As we will explain, 

we agree with West Bend that, as a matter of law, the circuit court is the proper venue for its 

declaratory judgment action. However, by staying the IWCC proceedings, the circuit court 

erroneously applied the doctrine of primary jurisdiction. In doing so, the circuit court did not 

make any factual findings but, rather, followed the First District Appellate Court’s holding in 

Ultimate Backyard, which we now decline to follow. Specifically, we disagree with the First 

District’s holding that the doctrine of primary jurisdiction authorizes a circuit court to stay 

administrative proceedings. To the contrary, we interpret the doctrine to stand only for the 

proposition that a circuit court may, in certain circumstances, stay its own judicial 

proceedings pending the referral of a controversy to an administrative agency having 

2

We note that we granted West Bend’s motion to strike certain portions of Bernardino’s reply brief 

for raising new arguments in violation of Illinois Supreme Court Rule 341(j) (eff. Nov. 1, 2017).
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specialized expertise over the disputed subject matter. Accord Estate of Bass v. Katten, 375 

Ill. App. 3d 62, 68 (2007) (noting that a circuit court has the inherent authority to stay its own 

proceedings, based on factors such as the orderly administration of justice and judicial 

economy).

¶ 18 In United States v. Western Pacific R.R. Co., 352 U.S. 59 (1956), the United States 

Supreme Court provided a detailed explanation of the principles underlying the doctrine of 

primary jurisdiction. 

“The doctrine of primary jurisdiction, like the rule requiring exhaustion of 

administrative remedies, is concerned with promoting proper relationships between 

the courts and administrative agencies charged with particular regulatory duties. 

‘Exhaustion’ applies where a claim is cognizable in the first instance by an 

administrative agency alone; judicial interference is withheld until the administrative 

process has run its course. ‘Primary jurisdiction,’ on the other hand, applies where a 

claim is originally cognizable in the courts, and comes into play whenever 

enforcement of the claim requires the resolution of issues which, under a regulatory 

scheme, have been placed within the special competence of an administrative body; 

in such a case the judicial process is suspended pending referral of such issues to the 

administrative body for its views.” (Emphasis added.) Id. at 63-64.

¶ 19 In keeping with these principles, our supreme court has consistently held that, “[u]nder 

the doctrine of primary jurisdiction, when a court has jurisdiction over a matter, it should, on 

some occasions, stay the judicial proceedings pending referral of the controversy, or a 

portion of it, to an administrative agency having expertise in the area.” (Emphasis added.) 

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 43; see also 

Segers v. Industrial Comm’n, 191 Ill. 2d 421, 427 (2000); People v. NL Industries, 152 Ill. 2d 

82, 95 (1992); Board of Education of Warren Township High School District 121 v. Warren 

Township High School Federation of Teachers, Local 504, 128 Ill. 2d 155, 162-63 (1989); 

Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 444 (1986) (each stating that 

the doctrine of primary jurisdiction allows for a stay of judicial proceedings pending referral 

of a controversy to an administrative agency). But here, the circuit court turned the doctrine 

of primary jurisdiction on its head by staying administrative proceedings pending the 

resolution of a legal issue in the circuit court. This inverse application might seem a logical 

and practical extension of the doctrine, but it conflicts with the underlying principles 

established in Western Pacific, as well as those that have since been articulated by Illinois 

courts. 

¶ 20 “The doctrine of primary jurisdiction is a judicially created doctrine that is not technically 

a question of jurisdiction, but a matter of self-restraint and relations between the courts and 

administrative agencies.” Bradley v. City of Marion, 2015 IL App (5th) 140267, ¶ 35. “No 

fixed formula exists for applying the doctrine of primary jurisdiction; rather, in every case 

the question is whether the reasons for the existence of the doctrine are present and whether 

the purposes it serves will be aided by its application in the particular litigation.” Village of 

Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 853 (2004). In considering whether the 

doctrine applies, courts must first determine whether the legislature has vested “exclusive 

original jurisdiction” over the disputed subject matter in an administrative agency. Skilling, 

163 Ill. 2d at 287. If it cannot be shown that the legislature intended to deprive the circuit 

court of its jurisdiction over the disputed subject matter, then the circuit court shares 
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concurrent jurisdiction with the administrative agency. NL Industries, 152 Ill. 2d at 99. The 

question then becomes whether the circuit court should “stay the judicial proceedings 

pending referral of a controversy, or some portion of it, to an administrative agency having 

expertise in the area.” Skilling, 163 Ill. 2d at 288. “Thus, under the doctrine a matter should 

be referred to an administrative agency when it has a specialized or technical expertise that 

would help resolve the controversy, or when there is a need for uniform administrative 

standards.” Kellerman, 112 Ill. 2d at 445. “Conversely, when an agency’s technical expertise 

is not likely to be helpful, or there is no need for uniform administrative standards, courts 

should not relinquish their authority over a matter to the agency.” Id.

¶ 21 Here, the circuit court relied on Skilling in determining that it had primary jurisdiction 

over West Bend’s declaratory judgment action. Although Skilling did not involve a request 

for a stay, the facts were otherwise similar to this case. After the employee filed his workers’ 

compensation claims, the insurance provider filed a declaratory judgment action in the circuit 

court, asserting that it had no obligation to defend or indemnify the employer. The insurance 

provider argued that the policy did not apply because it provided coverage for injuries 

occurring only in Wisconsin and the employee’s injury had occurred in Illinois. The 

employee moved to dismiss the declaratory judgment action, arguing that the circuit court 

was not the proper venue to resolve the coverage dispute. The circuit court dismissed the 

declaratory judgment action and the insurance provider appealed. Skilling, 163 Ill. 2d at 

285-86.

¶ 22 Our supreme court in Skilling first considered whether jurisdiction was exclusive with the 

administrative agency or whether it was concurrent with that of the circuit court. If there was 

concurrent jurisdiction, then the issue became which forum’s jurisdiction was “paramount.” 

Id. at 286. The court observed that section 18 of the Act states: “ ‘[a]ll questions arising 

under this Act, if not settled by agreement of the parties interested therein, shall, except as 

otherwise provided, be determined by the Commission.’ ” Id. (quoting 820 ILCS 305/18 

(West 1992)); see also 820 ILCS 305/1(c) (West 2016) (“Commission” means the IWCC). 

The court held that, because there was no language specifically divesting the circuit court of 

its jurisdiction over the subject matter of the declaratory judgment action (the interpretation 

of an insurance policy), the circuit court and the IWCC shared concurrent jurisdiction. The 

question then became whether the doctrine of primary jurisdiction dictated that the circuit 

court, rather than the IWCC, was the proper venue for hearing the declaratory judgment 

action. Skilling, 163 Ill. 2d at 287. After discussing the principles underlying the doctrine of 

primary jurisdiction, the court ruled that the circuit court had erred in dismissing the 

declaratory judgment action, as the coverage dispute involved a question of law that was 

precisely within the scope of the declaratory judgment statute (see 735 ILCS 5/2-701 (West 

1992)). Skilling, 163 Ill. 2d at 289. Thus, although the IWCC had concurrent jurisdiction to 

hear the dispute, “when the question of law was presented to the circuit court in the 

declaratory judgment suit, the jurisdiction of the circuit court became paramount.” Id. at 290. 

Notably, the Skilling court said nothing about staying the proceedings before the IWCC 

pending the resolution of the declaratory judgment action in the circuit court. 

¶ 23 In another case dealing with a similar issue, Knox County, after the employee’s guardian 

filed a workers’ compensation claim in Illinois, the insurance provider filed a declaratory 

judgment action in the circuit court, seeking a ruling that it had no duty to defend or 

indemnify the employer for claims filed outside Indiana. Knox County, 2016 IL App (1st) 
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143083, ¶ 6. The circuit court granted summary judgment in favor of the insurance provider 

and against the employer, determining that the policy did not comply with certain provisions 

of the Act and, thus, did not provide coverage for Illinois claims. Id. ¶¶ 9-10. The employer 

appealed, arguing that the circuit court’s ruling should be vacated because the disputed 

provisions of the Act “should be originally interpreted by the [IWCC],” not by the circuit 

court. Id. ¶ 13. The appellate court followed Skilling in affirming the circuit court’s ruling, 

stating: 

“As in Skilling, the declaratory judgment action at bar solely concerns the scope 

of coverage afforded in a workers’ compensation insurance policy. The construction 

of [the] insurance policy is not a determination of the factual issues related to a 

determination of workers’ compensation benefits, such as the nature or extent of the 

injury or the potential defenses to the workers’ compensation claim. If it was, the 

circuit court would have no original jurisdiction in the case and the [IWCC] would 

have exclusive jurisdiction as it would be in a better position to draw on its special 

expertise to answer these questions.” Id. ¶ 19.

¶ 24 Here, Bernardino does not argue that the circuit court lacks primary jurisdiction over the 

late notice issue raised by West Bend. He argues, however, that the issue he raised as to 

whether the West Bend policy covered the employers’ Lake in the Hills location 

distinguishes this case from Skilling and Knox County. Bernardino maintains that, absent a 

certificate from the NCCI establishing the existence of coverage for the Lake in the Hills 

location, the IWCC’s specialized expertise is needed to determine whether there were 

violations of the technical requirements under the Act for establishing the existence of 

coverage. We disagree. In the circuit court, West Bend acknowledged that there was no 

certificate from the NCCI establishing the existence of coverage for the Lake in the Hills 

location, but argued that this “inadvertent failure to report the location to [the] NCCI does not 

negate the existence or the legal effect of the West Bend policy.” West Bend takes that same 

position in this appeal, arguing that the Lake in the Hills location was (but for the late notice 

issue) covered, based on the “Locations” provision in the policy, and that “[t]he fact that the 

location is not shown in the NCCI database does not negate the coverage.” Thus, it is 

apparent that there are no disputed questions of fact with respect to the issue raised by 

Bernardino, but only a legal dispute as to whether a lack of compliance with the Act’s 

technical requirements for certification with the NCCI serves to negate coverage that would 

otherwise apply. Following Skilling and Knox County, we hold that the circuit court was 

correct in determining that it had both concurrent and primary jurisdiction over the subject 

matter of West Bend’s declaratory judgment action. 

¶ 25 Having resolved that the circuit court shares concurrent jurisdiction with the IWCC, and 

that the jurisdiction of the circuit court is “paramount” (see Skilling, 163 Ill. 2d at 290), the 

issue now squarely before us is the propriety of the stay order dated November 1, 2018. As 

discussed, the circuit court agreed with West Bend that it should stay the IWCC proceedings, 

based on the First District’s holding in Ultimate Backyard. We cannot fault the circuit court 

for following Ultimate Backyard, as it appears to be the only Illinois case that has considered 

whether, under the doctrine of primary jurisdiction, a circuit court may stay administrative 

proceedings pending the resolution of a legal dispute in the circuit court. See State Farm Fire 

& Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539 (1992) (“A decision of the appellate court, 

though not binding on other appellate districts, is binding on the circuit courts throughout the
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State.”). However, because we decline to follow Ultimate Backyard, we nonetheless hold that 

the circuit court erred as a matter of law in staying the IWCC proceedings.

¶ 26 The reasoning in Ultimate Backyard was based largely on the holding in Casualty 

Insurance Co. v. Kendall Enterprises, Inc., 295 Ill. App. 3d 582 (1998). In Kendall, an 

arbitrator from the IWCC issued a decision in favor of the employee after ruling that, because 

the insurance provider did not properly cancel its workers’ compensation policy, it remained 

liable for benefits to the employee. However, within the 30-day period for filing a petition for 

review in the IWCC, the insurance provider filed a declaratory judgment action in the circuit 

court, claiming that it was not liable for any benefits to the employee because it had canceled 

the policy. Id. at 583-84. The employee filed a motion to dismiss the declaratory judgment 

action, conceding that the circuit court had primary jurisdiction over the disputed legal 

question but arguing that the doctrine should not be applied, because of the rulings that were 

already made by the IWCC. The circuit court granted the employee’s motion to dismiss and 

the insurance provider appealed. Id. at 585-86.

¶ 27 The Kendall court noted that, pursuant to Skilling, “[t]he circuit court and the [IWCC] 

had concurrent jurisdiction over questions arising under the Act.” Id. at 586. Next, the court 

rejected the insurance provider’s contention that its declaratory judgment action presented a 

question of law and did not raise a question of fact, noting the insurance provider’s assertion 

that it had canceled the employee’s policy by mailing notifications of the cancellation to the 

employee, the employee’s insurance agent, and the NCCI. The court observed that this 

disputed factual issue had already “been decided against [the insurance provider] by the 

[IWCC’s] arbitrator following a hearing at which [the insurance provider] presented evidence 

and attempted to defend its position.” Id. “In effect,” the court reasoned, the insurance 

provider was “actually contesting the administrative findings of fact” that had already been 

made by the IWCC. Id. The court concluded:

“This case is procedurally distinct from Skilling, where the [IWCC] had not made 

factual findings regarding the issue and, unlike plaintiff in our case, the insurance 

company contested the authority or jurisdiction of the [IWCC] to hear the case. 

[Citation.] Here, plaintiff’s complaint contained assertions of fact regarding whether 

it had effectively cancelled [the employer’s] insurance policy. The [IWCC] had held a 

hearing over several days, heard evidence and issued findings of fact contrary to 

plaintiff’s position. In addition, the cause was still pending on review before the 

[IWCC] when plaintiff filed its complaint. Thus, we find no error in the court’s 

dismissal of [the insurance provider’s] complaint for declaratory judgment.” Id. at 

587.

¶ 28 In Ultimate Backyard, after the employees filed a claim with the IWCC, the insurance 

provider filed (1) a declaratory judgment action in the circuit court, asserting that it had no 

duty to defend or indemnify the employer in the IWCC proceedings, and (2) a motion in the 

circuit court to stay the IWCC proceedings. In its declaratory judgment action, the insurance 

provider argued that it had canceled the employer’s policy in compliance with the relevant 

provisions of the Act. Ultimate Backyard, 2012 IL App (1st) 101751, ¶¶ 3-4. However, the 

circuit court granted the employees’ motions to dismiss based on the doctrine of primary 

jurisdiction, concluding that certain factual questions would be more appropriately 

determined before the IWCC. Id. ¶ 8. The appellate court reversed, finding the facts of 

Skilling to be “most analogous” and noting that the circuit court was simply asked to interpret 
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the relevant sections of the Act in determining whether the insurance provider had canceled 

the policy. Id. ¶ 32. The court noted that the interpretation of a statute “is a question of law, 

which is best answered by the circuit court and one that does not require the specialized 

expertise of the IWCC.” Id. The court concluded in pertinent part: 

“Therefore, the IWCC does not have primary jurisdiction, and as stated in Kendall, 

when there is a ruling on a question of law that could foreclose needless litigation, it 

is best addressed by the circuit court. Kendall, 295 Ill[.] App. 3d at 586. We find that 

this is the exact situation present before us.

For the above-mentioned reasons, we find that the lower court abused its 

discretion in granting appellees’ motions to dismiss and denying [the insurance 

provider’s] motion to stay. We, therefore, reverse and remand. We direct the lower 

court to stay the proceedings before the IWCC on the underlying workers’ 

compensation claim until it determines if the notice of cancellation that [the insurance 

provider] submitted to the NCCI met the statutory requirements of section 4(b) of [the 

Act], relying on the undisputed fact that the NCCI logged and date stamped the notice 

of cancellation prior to its rejection.” (Emphasis added.) Id. ¶¶ 32-33.

¶ 29 Unlike the other cases discussed above, Ultimate Backyard is procedurally analogous to 

this case in that the insurance provider sought to stay the IWCC proceedings pending the 

resolution of a declaratory judgment action in the circuit court. However, to the extent that 

Ultimate Backyard relied on the doctrine of primary jurisdiction to stay the administrative 

proceedings, the case stands out as an anomaly. As can be seen, the Ultimate Backyard court 

directed the circuit court to enter the stay without recognizing that it was doing so based on 

the inverse application of the doctrine. Furthermore, we disagree with the Ultimate Backyard 

court that it was facing “the exact situation” that was faced by the Kendall court. See id. ¶ 32. 

The Kendall court simply affirmed the circuit court’s dismissal of the insurance provider’s 

declaratory judgment action. In distinguishing Skilling, the Kendall court noted that the 

insurance provider was not challenging the IWCC’s jurisdiction to consider the disputed 

factual question; rather, the insurance provider was seeking to relitigate the factual dispute 

that the IWCC’s arbitrator had already ruled upon in finding that the insurance provider was 

liable for benefits to the employee. The Kendall court further implied that, even if the 

arbitrator had not already ruled on it, the disputed factual question would have warranted a 

referral to the administrative agency. Kendall, 295 Ill. App. 3d at 586-87. Hence, by 

affirming the circuit court’s dismissal of the declaratory judgment action, the Kendall court 

effectively prohibited the insurance provider from using the doctrine of primary jurisdiction 

as a mechanism for circumventing the administrative process. Certainly nothing in Kendall, 

or in any other case that we know of, implies that the doctrine authorizes a circuit court to 

stay the proceedings before an administrative body pending the resolution of a legal dispute 

in the circuit court.

¶ 30 We acknowledge that Bernardino has not challenged Ultimate Backyard on the grounds 

that we have identified as our basis for reversal. A reviewing court normally should not 

search the record for unargued and unbriefed reasons to reverse the circuit court’s judgment, 

especially when it would have the effect of transforming its role from jurist to advocate. 

Marconi v. City of Joliet, 2013 IL App (3d) 110865, ¶ 18. We have no such concerns here. 

We did not search the record for a reason to reverse the circuit court. To the contrary, we 

noticed an error on the face of the order dated November 1, 2018, in which the circuit court 
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stayed the IWCC proceedings based on the doctrine of primary jurisdiction. “ ‘[A] reviewing 

court does not lack authority to address unbriefed issues and may do so *** when a clear and 

obvious error exists in the trial court proceedings.’ ” Mid-Century Insurance Co. v. Founders 

Insurance Co., 404 Ill. App. 3d 961, 966 (2010) (quoting People v. Givens, 237 Ill. 2d 311, 

325 (2010)). Moreover, pursuant to Illinois Supreme Court Rule 366 (eff. Feb. 1, 1994), in 

exercising its responsibility for a just result, a reviewing court may decide a case on grounds 

not raised by the parties. Gay v. Frey, 388 Ill. App. 3d 827, 832 (2009). 

¶ 31 We are not advocating for Bernardino in this case, but simply correcting a clear and 

obvious error in the circuit court proceedings that would otherwise produce a result that is 

contrary to well-established legal principles. The doctrine of primary jurisdiction establishes 

that, in cases raising issues of fact that are within an agency’s expert and specialized 

knowledge, the judiciary’s role is best exercised by deferring to the agency charged with 

regulating the subject matter. Western Pacific, 352 U.S. at 64-65. Accordingly, when a court 

has jurisdiction over a matter, there are instances where it should “stay the judicial 

proceedings pending referral of the controversy, or a portion of it, to an administrative 

agency having expertise in the area.” Crossroads, 2011 IL 111611, ¶ 43. There is no fixed 

formula for applying the doctrine of primary jurisdiction, as in every case “the question is 

whether the reasons for the existence of the doctrine are present and whether the purposes it 

serves will be aided by its application in the particular litigation.” Village of Itasca, 352 Ill. 

App. 3d at 853. 

¶ 32 Here, the reasons for the existence of the doctrine of primary jurisdiction are not present, 

because there is no need to refer any specialized controversy to the IWCC. Furthermore, the 

purposes served by the doctrine will not be aided by its application in this case. The Ultimate 

Backyard ruling paves the way for insurance providers to rely on the doctrine to create 

procedural advantages for themselves. Here, West Bend has effectively relied upon Ultimate 

Backyard to stay the IWCC proceedings while it awaits a ruling from the circuit court as to 

whether it has an interest to defend before the IWCC. However, the doctrine of primary 

jurisdiction was not created for litigants to game the administrative system (see, e.g., 

Kendall, 295 Ill. App. 3d at 586-87); it was created to promote “self-restraint and relations 

between the courts and administrative agencies” (Bradley, 2015 IL App (5th) 140267, ¶ 35). 

The circuit court reasoned that West Bend would be placed “in limbo” if the IWCC 

proceedings continued before there was a ruling on the issue of coverage. But if West Bend 

finds itself in limbo, it is by West Bend’s own doing. Because the IWCC shares concurrent 

jurisdiction with the circuit court (see supra ¶ 25), West Bend could have argued the late 

notice issue before the IWCC and appealed to the circuit court upon the entry of an adverse 

ruling. It chose instead to bring the issue straight to the circuit court. While the doctrine of 

primary jurisdiction requires the circuit court to consider the issue, it does not provide that 

the administrative proceedings should be stayed pending its resolution. 

¶ 33 During oral argument, Bernardino suggested that West Bend must satisfy the ordinary 

requirements for a preliminary injunction before the circuit court can stay the IWCC 

proceedings. To obtain a preliminary injunction, a party must show (1) a clearly ascertained 

right in need of protection, (2) an irreparable injury in the absence of an injunction, (3) no 

adequate remedy at law, and (4) a likelihood of success on the merits of the case. Clinton 

Landfill, Inc. v. Mahomet Valley Water Authority, 406 Ill. App. 3d 374, 378 (2010). We 

observe that similar requirements are included in section 3-111(a)(1) of the Administrative 
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Review Law (Law), which authorizes a circuit court, “upon notice to the agency and good 

cause shown, to stay the decision of the administrative agency in whole or in part pending the 

final disposition of the case.” 735 ILCS 5/3-111(a)(1) (West 2016). For purposes of this 

subsection, “good cause” requires a showing that (1) an immediate stay is required in order to 

preserve the status quo without endangering the public, (2) it is not contrary to public policy, 

and (3) there exists a reasonable likelihood of success on the merits. Id. It is worth noting, 

however, that the Law applies to an administrative agency only “where the Act creating or 

conferring power on such agency, by express reference, adopts the provisions” of the Law. 

Id. § 3-102. Other courts have observed that the Act does not adopt the Law. Dobbs Tire & 

Auto v. Illinois Workers’ Compensation Comm’n, 2018 IL App (5th) 160297WC, ¶ 17; 

Farris v. Illinois Workers’ Compensation Comm’n, 2014 IL App (4th) 130767WC, ¶ 46; 

Wal-Mart Stores, Inc. v. Industrial Comm’n, 324 Ill. App. 3d 961, 966 (2001). 

¶ 34 Because these issues have not been fully briefed or argued by West Bend, we take no 

position as to what procedures, if any, are available to West Bend if it seeks to renew its 

motion in the circuit court to stay the IWCC proceedings. However, we agree with 

Bernardino’s argument that the nature of his section 19(b) petition, which seeks to determine 

only whether he is entitled to receive medical services, militates against staying the 

proceedings in the IWCC. The primary purpose of the Act is to “provide prompt and 

equitable compensation for employees who are injured while working, regardless of fault.” 

In re Estate of Dierkes, 191 Ill. 2d 326, 331 (2000). Relevant here, 

“[w]hether the employee is working or not, if the employee is not receiving or has not 

received medical, surgical, or hospital services or other services or compensation ***, 

the employee may at any time petition for an expedited hearing by an Arbitrator on 

the issue of whether or not he or she is entitled to receive payment of the services or 

compensation.” 820 ILCS 305/19(b) (West 2016). 

“Expedited hearings shall have priority over all other petitions and shall be heard by the 

Arbitrator and Commission with all convenient speed.” Id. We agree with Bernardino that it 

would contradict our legislature’s clear intent to provide an expedited process for employees 

awaiting medical services if the process could be suspended while the employer and 

insurance provider dispute the issue of coverage in the circuit court.

¶ 35 III. CONCLUSION

¶ 36 The order of the circuit court of McHenry County staying the IWCC proceedings is 

reversed, and the cause is remanded for further proceedings. 

¶ 37 No. 2-18-0934, Reversed and remanded.

¶ 38 No. 2-18-1009, Appeal dismissed.