A&R Janitorial v Pepper Construction

A&R JANITORIAL v. PEPPER CONSTRUCTION, et. al., (Teresa Mroczko, Intervenor-Appellant), 2017 IL App (1st) 170385


Mroczko, the petitioner in a workers’ compensation case, sought to intervene in a subrogation action filed by her employer, A&R Janitorial.  Pursuant to Section 5(b) of the Act, if the injured employee does not file a claim against a third-party legally liable for the injury prior to three months before the expiration of the statute of limitations, the employer is allowed to file an action for indemnification.  After the employer filed its lawsuit, Mroczko filed suit which was dismissed for failure to file within the statute of limitations.  She then sought permission to intervene in the employer’s suit, which was also dismissed.  The Act is silent as to whether an employee can intervene in a subrogation suit.  Pursuant to the Code of Civil Procedure, intervention is permitted as of right when the applicant’s interests may not be adequately represented by existing parties.  Here, the circuit court abused its discretion when it did not consider whether petitioner’s interests could be adequately represented by counsel for the employer.  The Appellate Court reversed and remanded the case to determine if petitioner met the requirements for intervention and, if so, to what degree she could participate in the litigation. 


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