THIRD DIVISION

								FILED: 05/14/03

No.  1-02-2940

JOSE MURCIA,						)	Appeal From The

								)	Circuit Court of

		Plaintiff-Appellant,		)	Cook County

								)

			v.					)

								)

TEXTRON, INC., a Delaware Corporation;	)

MICROMATIC TEXTRON, a Division of		)

TEXTRON, INC.; GREENLEE BROS. & CO.,	)

Individually and by and through its	)

successor, TEXTRON, INC.; EX-CELL-O	)

CORPORATION, Individually and by and	)

through its successor, TEXTRON, INC.,	)

								)

		Defendants,				)

								)

			and					)

								)

CALLEN MANUFACTURING CORPORATION,		)	Honorable

								)	Michael J. Hogan, 

		Defendant-Appellee.			)	Judge Presiding.

	JUSTICE HOFFMAN delivered the opinion of the court:

	The plaintiff, Jose Murcia, filed the instant action seeking

damages for injuries he sustained while operating a trim press

owned by his employer, Callen Manufacturing Company (Callen).  In

count III of his amended complaint, the plaintiff asserted a

negligence claim against Callen, predicated upon its alleged

alteration of the trim press, failure to equip the press with

necessary safety devices, and failure to warn him of the dangerous condition of the press.  Callen filed a motion for judgment on the

pleadings pursuant to section 2-615(e) of the Code of Civil

Procedure (Code) (735 ILCS 5/2-615(e) (West 1996)), in which it

asserted that the negligence claim contained in count III of the

plaintiff's amended complaint was barred by the exclusive remedy

provision of section 5(a) of the Workers' Compensation Act (820

ILCS 305/5(a) (West 1996)).  Before the trial court ruled on

Callen's motion, the plaintiff filed a second amended complaint

which, in count III thereof, again asserted a negligence claim

against Callen.  Callen elected to have its previously filed motion

for judgment on the pleadings stand as its responsive pleading to

count III of the plaintiff's second amended complaint.  On March

11, 1997, the trial court granted Callen's motion for judgment on

the pleadings and dismissed count III of the plaintiff's second

amended complaint.  It did not, however, include within its order

findings pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.

304(a)), permitting an immediate appeal therefrom.

	The action continued on as against the remaining defendants. 

On February 6, 1998, the trial court granted summary judgment in

favor of nine defendants named in count II of the plaintiff's

second amended complaint and included the requisite Rule 304(a)

findings in its written order to that effect.  The plaintiff did

not appeal from that order, and those defendants are not parties to

this appeal.

	A trial commenced in this cause during the first week of May 2000.  Although we have no transcript of that proceeding, it

appears that the only defendant to participate in the trial was

Textron, Inc.  On May 10, 2000, after the trial commenced, the

plaintiff was granted leave to file a two-count third amended

complaint.  Count I set forth a negligence claim against Textron,

Inc. and three other corporations. Count II reasserted the

negligence claim against Callen which the trial court had previ

ously dismissed on March 11, 1997.

	At the conclusion of the trial on May 10, 2000, the jury

returned a verdict in favor of Textron, Inc., and the trial court

entered judgment on the verdict that same day.  There was no order

entered disposing of the plaintiff's claims against the remaining

three defendants as of that date.

	On November 8, 2000, the plaintiff filed a motion asking the

court to reconsider its March 11, 1997, order granting Callen's

motion for judgment on the pleadings.  The trial court denied that

motion on May 11, 2001.  Thereafter, on June 8, 2001, the plaintiff

filed a notice of appeal from the trial court's orders dismissing

Callen and denying his motion to reconsider.  However, since the

plaintiff's claims against the three remaining defendants were

still pending and unresolved, this court dismissed that appeal for

want of jurisdiction.  Murcia v. Textron, Inc., No. 1-01-2176 (2002) (unpublished order under Supreme Court Rule 23).

	On September 6, 2002, the trial court entered an agreed order

dismissing the plaintiff's action against the remaining three defendants, with prejudice.  Thereafter, on September 23, 2002, the

plaintiff again filed a notice of appeal from the trial court's

March 11, 1997, order dismissing his negligence claim against

Callen and its May 11, 2001, order denying his motion for

reconsideration of the dismissal order.  Since the trial court's

order of September 6, 2002, terminated this litigation as to all

remaining defendants, our jurisdiction to entertain the plaintiff's

appeal has been invoked pursuant to Supreme Court Rule 301 (155

Ill. 2d R. 301).

	In this appeal, the plaintiff addresses only the dismissal of

his negligence claim against Callen.  None of the other defendants

are parties to this appeal.  In urging reversal of the March 11,

1997, order granting Callen's motion for judgment on the pleadings,

the plaintiff argues that Callen acted in a "dual capacity," acting

not only as his employer but also as a "quasi manufacturer" of the

trim press that injured him.  The plaintiff maintains that the

negligence claim involved here is brought against Callen in its

capacity as a "quasi- manufacturer" of the press and, as such, is

not barred by the exclusive remedy provision of the Workers'

Compensation Act.  For the reasons which follow, we reject the

plaintiff's argument and affirm the judgment of the circuit court.

	Before addressing the substantive issues presented by this

appeal, we will comment briefly upon a procedural aspect of the

case.

	A motion for judgment on the pleadings brought by a defendant pursuant to section 2-615(e) of the Code admits the truth of all of

the well-pleaded facts in the plaintiff's complaint and tests the

sufficiency of the pleading as a matter of law.  Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443, 448, 266 N.E.2d 897 (1970).  The purpose of such a motion is not to raise affirmative

factual defenses.  Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282 (1994).  In contrast, a motion to dismiss

a complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619

(West 1996)) admits the legal sufficiency of the complaint and

raises certain defects or affirmative defenses which act to defeat

the plaintiff's claim. Illinois Graphics Co., 159 Ill. 2d at 485; Neppl v. Murphy, 316 Ill. App. 3d 581, 584, 736 N.E.2d 1174 (2000).

	The exclusive remedy provision of section 5(a) of the Workers'

Compensation Act provides employers with an affirmative defense to

any tort action that may be asserted against them by an employee

injured in the line of his or her duty.  Doyle v. Rhodes, 101 Ill. 2d 1, 10, 461 N.E.2d 382 (1984).  Consequently, the defense is

appropriately raised by a motion for involuntary dismissal brought

pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9)

(West 1996)), not by means of a motion for judgment on the

pleadings pursuant to section 2-615(e) as was done by Callen in

this case.  However, as our supreme court has observed, there is

"some degree of overlap between motions to dismiss brought under

section 2-615 and those brought under section 2-619" when the

grounds for the motion appear on the face of the complaint under attack.  Illinois Graphics Co., 159 Ill. 2d at 485.

	In this case, the factual basis underlying Callen's assertion

of the exclusive remedy provision of section 5(a) of the Workers'

Compensation Act as a bar to the plaintiff's negligence claim

against it appears on the face of count III of the second amended

complaint.  Because both a section 2-615 motion and a section 2-619

motion admit the truth of the allegations in the complaint under

attack (Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001, 1012, 654 N.E.2d 675 (1995)) and because the

plaintiff was able to address the substance of Callen's arguments

in response to its motion, we find that the plaintiff was not

prejudiced by Callen's mislabeling of the motion.  See Neppl, 316 Ill. App. 3d at 585-86.  Further, we apply a de novo standard of review to orders entered in response to either a section 2-615

motion or a section 2-619 motion.  Neppl, 316 Ill. App. 3d at 583.  As a consequence, we will address the substantive issue raised by

the plaintiff's appeal; namely, whether, as a matter of law, his

negligence claim against Callen is barred by the exclusive remedy

provision of the Workers' Compensation Act.

	As our supreme court explained in Sharp v. Gallagher, 95 Ill. 2d 322, 326, 447 N.E.2d 786 (1983), in enacting the Workers'

Compensation Act, our legislature abrogated an injured employee's

common law rights to recover against its employer.  Our legislature

established instead a system of no-fault liability for employers,

subject to statutory limits as to the amount an employee may recover.  Sharp, 95 Ill. 2d at 326.  In most cases, the Workers' Compensation Act provides an employee's exclusive source of remedy

against his employer.  Sharp, 95 Ill. 2d at 326.  Section 5(a) of the Workers' Compensation Act provides in relevant part:  

		"No common law or statutory right to recover damages

from 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."  820 ILCS 305/5(a) (West

1996).

	The dual- capacity or dual persona doctrine is recognized as a limited exception to the exclusive remedy provision of section

5(a).  Under this doctrine, an employer may become liable in tort

to an injured employee if, in addition to acting in its capacity as

employer, it operates in a second capacity that confers upon it

"obligations independent of those imposed upon [it] as employer." 

Smith v. Metropolitan Sanitary District, 77 Ill. 2d 313, 318, 396 N.E.2d 524 (1979).  As our supreme court held in Smith:

		"[T]he decisive test in applying the dual capacity

doctrine 'is not concerned with how separate or different

the second function of the employer is from the first but

with whether the second function generates obligations

unrelated to those flowing from the first, that of

employer.' (2A A. Larson, Workmen's Compensation sec. 72.80, at 14-117 (1976).)  A mere separate theory of

liability against the same legal person as the employer

is not a true basis for the use of the dual capacity

doctrine; the doctrine, instead, requires a distinct

separate legal persona. (2A A. Larson, Workmen's Compensation sec. 72.80 (Supp. 1979).)"  Smith, 77 Ill. 2d at 318-19.

	In order to invoke the dual capacity doctrine as an exception

to the exclusive remedy provision set forth in section 5(a) of the

Workers' Compensation Act, an employee must show that his employer

acted in two distinct capacities and that he was injured as a

result of conduct in which his employer engaged while acting in the

capacity other than that of employer.  Where, however, the duties

of the employer under both capacities are intertwined to the extent

that its conduct in the second capacity cannot be deemed to

generate obligations unrelated to those flowing from its capacity

as an employer, the dual capacity doctrine is inapplicable.

Incandela v. Giannini, 250 Ill. App. 3d 23, 27-28, 619 N.E.2d 844 (1993); see also McCormick v. Caterpillar Tractor Co., 85 Ill. 2d 352, 357, 423 N.E.2d 876 (1981).

	In count III of his second amended complaint, the plaintiff

alleged that he was injured while operating a trim press owned by

his employer, Callen.  He further alleged that, in modifying,

changing and altering the press, Callen "acted as a 'quasi

manufacturer' and was, in effect, a separate legal entity, namely a manufacturer."  On appeal, the plaintiff asserts that Callen's

conduct in modifying the press was outside the bounds of the

employer-employee relationship and gave rise to the application of

the dual capacity doctrine.

	The plaintiff's arguments in this regard were raised and

rejected in Rosales v. Verson Allsteel Press Co., 41 Ill. App. 3d 787, 354 N.E.2d 553 (1976).  In Rosales, the plaintiff brought a common law action against his employer, alleging that injuries he

received while operating a punch press owned by the employer were

proximately caused by the employer's modification of the press. 

The employer moved to dismiss, arguing that the action was barred

by section 5(a) of the Worker's' Compensation Act.  The trial court

granted the motion, and the plaintiff appealed.  Rosales, 41 Ill. App. 3d at 787-88.  The plaintiff asserted that the trial court

erred in dismissing the action because he sued his employer as the

"quasi manufacturer" of the press, not in its capacity as his

employer.  The Rosales court rejected the argument, holding that an employer's act of supplying tools to its employee is a natural

incident of the employer-employee relationship and that an

employer's modification of a press intended for use by its

employees does not impose upon the employer the dual capacity of a

quasi manufacturer.  Rosales, 41 Ill. App. 3d at 787-89.  The court reasoned that, "under the dual capacity doctrine, the second

capacity must be one that creates legal obligations on the part of

the employer to the public in general and not just to its employees."  Rosales, 41 Ill. App. 3d at 790.

	In Ocasek v. Krass, 153 Ill. App. 3d 215, 505 N.E.2d 1285 (1987), the court analyzed the holding in Rosales.  The court held that the dual capacity doctrine is not applicable simply because

the employer's additional capacity creates obligations to the

general public if those obligations are not unrelated to the

obligations flowing from its role as an employer.  The Ocasek court noted that the majority of jurisdictions hold that an employer who

is also the manufacturer of a product which is used by its

employees cannot be held liable to its own employees on a theory of

product liability.  Ocasek, 153 Ill. App. 3d at 218-19.

	In this case, the plaintiff has not alleged facts necessary to

avail himself of the dual capacity doctrine.  See Sims v. Teepak, Inc., 143 Ill. App. 3d 865, 870, 493 N.E.2d 721 (1986) (complaint must allege the existence of a second capacity under which the

employer's status as an employer is coincidental).  The mere fact

that Callen modified, changed or altered the press that injured the

plaintiff did not impose upon it a second legal persona independent from and unrelated to its status as the plaintiff's employer.  Nor

has the plaintiff alleged facts to support the conclusion that, by

modifying, changing or altering the press, Callen incurred

obligations unrelated to those flowing from its status as an

employer.  As was the case in Rosales, Callen's modification of the press that injured the plaintiff did not impose upon it the dual

capacity of a "quasi manufacturer."  Rather, Callen's act of modifying, changing or altering the press was incident to its

business of manufacturing machinery parts and was undertaken in its

capacity as the plaintiff's employer.

	Based upon the foregoing analysis, we find that the plain

tiff's negligence claim against Callen is barred by section 5(a) of

the Worker's' Compensation Act and, as a consequence, affirm the

judgment of the circuit court.

	Affirmed.

	SOUTH, P.J., and HALL, J., concur.