Sharply split on whether the law-of-the-case doctrine barred Illinois Tool Works from invoking the Workers’ Compensation Act’s exclusive-remedy provision as an affirmative defense on remand from a 2014 decision that concluded a DuPage County judge erred in spontaneously applying the exclusive-remedy law as an additional basis for granting ITW’s request for summary judgment — in a lawsuit where Michael Hiatt, an employee of Western Plastics Inc. in west suburban Addison, alleged his arms were amputated because of an on-the-job injury — the Illinois Appellate Court, with one justice dissenting in Hiatt’s return trip to the 2nd District, affirmed summary judgment for ITW based on a revised answer that belatedly asserted the exclusive-remedy defense. Hiatt v. Illinois Tool Works, 2018 IL App (2d) 170554 (Sept. 28, 2018).

The focus of the debate between Justices Michael J. Burke and Kathryn E. Zenoff was whether comments about prejudice to Hiatt in Paragraph 106 of Hiatt v. Western Plastics, 2014 IL App (2d) 140178, were obiter dicta.

Hiatt had three theories for trying to hold ITW liable. He alleged that there was a joint venture between ITW and Western Plastics; ITW retained control over his employer; and ITW knew the machine that injured him was unreasonably dangerous.

Granting ITW’s first motion for summary judgment, the trial judge added — without prompting — that ITW would also be entitled to win based on the exclusive-remedy defense.

In Hiatt I, the 2nd District concluded that Hiatt presented sufficient evidence to proceed on the joint venture theory. And although ITW argued that the exclusive-remedy law provided an alternative basis for affirming, the appellate court concluded that the judge erred in sua sponte deploying this defense.

When Hiatt tweaked his complaint on remand, ITW’s answer added the exclusive-remedy defense.

Overruling Hiatt’s objection, the trial judge decided that the law-of-the-case doctrine didn’t block ITW’s maneuver. And applying the so-called Loyola factors — from Loyola Academy v. S&S Roof Maintenance, 146 Ill. 2d 263 (1992) — the judge concluded that Hiatt would not be prejudiced by the new defense.

Hiatt appealed again after the judge granted ITW’s second motion for summary judgment — based on Section 5(a) of the Workers’ Compensation Act.

Affirming, the majority concluded that the discussion of prejudice to Hiatt in Paragraph 106 was obiter dicta that did not handcuff the trial judge on remand.

Here are highlights of Burke’s majority opinion and Zenoff’s dissent (with omissions not noted and formatting modified for clarity):

Justice Burke

“The law-of-the-case doctrine limits relitigation of a previously decided issue in the same case.” Diocese of Quincy v. Episcopal Church, 2016 IL App (4th) 150193. This means that “questions of law decided on a previous appeal are binding on the trial court on remand as well as on the appellate court on a subsequent appeal.” Madigan v. Commerce Commission, 2012 IL App (2d) 100024.

The parties disagree over whether the mandate in Hiatt I prevented ITW from filing an exclusive-remedy defense on remand.

In reversing the trial court in Hiatt I, this court concluded: “For the foregoing reasons, we reverse the judgment and remand for further proceedings.”

After a judgment is reversed and the cause is remanded, the trial court can hold only such further proceedings as conform to the judgment of the appellate tribunal. Whether our mandate precluded the trial court from allowing ITW to amend its affirmative defenses is a question of law.

We observe that in Hiatt I we did not explicitly order the trial court not to allow ITW to amend its defenses. However, a reviewing court is not required to state specific directions in an order reversing a judgment and remanding a cause. In such a case, the court to which the cause is remanded must examine the reviewing court’s opinion and proceed in conformity with the views expressed in it.

In Clemons v Mechanical Devices Co., 202 Ill. 2d 344 (2002), the Supreme Court noted that the trial court will in some cases be required to allow the amendment of pleadings even when the reviewing court has not explicitly so ordered:

“When a judgment is reversed and the cause remanded with directions to proceed in conformity to the opinion then filed, and it appears from the opinion that the grounds of reversal are of a character to be obviated by subsequent amendment of the pleadings or the introduction of additional evidence, it is the duty of the trial court to permit the cause to be re-docketed and then to permit amendments to be made and evidence to be introduced on the hearing just as if the cause was then being heard for the first time.”

ITW maintains that the reversal in Hiatt I with respect to the application of the act was based on two issues: (1) whether the trial court properly sua sponte raised the exclusive-remedy defense and (2) whether the defense provided an alternative basis for affirming the summary judgment.

We held that the trial court erred in sua sponte raising the exclusive-remedy defense and that, because an affirmative defense is forfeited if not timely raised, it would have been prejudicial to allow ITW to raise this defense as an alternative basis for affirming the trial court.

The first holding is not at issue here. As to the second holding, plaintiff argues that we held that ITW had forfeited the exclusive-remedy defense by not timely raising it.

We agree that we prevented ITW from raising the defense as an alternative basis to affirm the summary judgment, but only because ITW had not raised it in the trial court and could not do so for the first time on appeal. We did not hold that ITW was precluded from invoking the exclusive-remedy provision on remand. In fact, the parties never requested that we address ITW’s ability to raise the defense on remand.

Plaintiff notes our specific points regarding the potential prejudice of raising the exclusive-remedy defense and the strategic decision not to raise the issue. Plaintiff questions why we even addressed the issue if we did not intend to bar the defense on remand. Plaintiff asserts that, if we had intended that our opinion apply only to the case “on appeal,” we would have said so.

In particular, plaintiff notes [Paragraph] 106 in Hiatt I, which discusses at great length how long the parties engaged in motion practice and discovery and how ITW made a strategic decision not to assert the exclusive-remedy provision, in the hope that it could avoid liability altogether by defeating plaintiff’s claim.

Plaintiff further points out the portion of the paragraph that states: “If ITW were permitted to raise the exclusive-remedy provision as a defense at this late stage, despite its earlier decision not to assert the defense, then plaintiff would be prejudiced.”

To the extent that the tone of this paragraph might suggest that “late stage” could mean “from this point on,” we find that those comments were obiter dicta.

Clearly, any holding (express or implied) as to whether an amendment would be proper on remand not only would have been beyond the context of the appeal and beyond our purview as a reviewing court, but would have required us to conduct an analysis that we did not undertake.

Thus, any comments about the broader scope of the case were literally in passing. They were undoubtedly dicta because they were not essential to the outcome of the case and were not “an expression of opinion upon a point in a case argued by counsel.” Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (2010).

The law-of-the-case doctrine encompasses a court’s explicit decisions and those issues decided by necessary implication. The trial court’s analysis of our holding in Hiatt I was correct.

As the trial court observed, “there’s nothing in the mandate or the opinion that even discusses whether ITW could raise that on remand.” Accordingly, we agree with the trial court that the law-of-the-case doctrine did not preclude ITW from raising the exclusive-remedy defense.

Justice Zenoff

Obiter dictum refers to “a remark or opinion uttered by the way” (Cates v. Cates, 156 Ill. 2d 76 (1993)) or “‘as an aside’” (In re Estate of Friedman, 2017 IL App (2d) 160889). Our discussion in [Paragraph] 106 of Hiatt I did not amount to remarks or opinions uttered by the way or as an aside. Nor were our comments based on hypothetical facts that were not before us.

We instead responded directly to the issues that were presented by the parties in the appeal. Specifically, ITW attempted to invoke a defense on appeal that it had elected not to pursue earlier in the litigation. In Hiatt I, we determined that it was too late for ITW to assert that defense, as it would result in prejudice to plaintiff.

That was not merely the “tone” of [Paragraph] 106; that was what we said. Contrary to what the majority now claims, our discussion was neither “beyond the context of the appeal” nor “beyond our purview as a reviewing court.”

Even had we not explicitly said in Hiatt I that it was too late for ITW to raise the defense, that was certainly the necessary implication of our discussion. The law-of-the-case doctrine “encompasses not only the reviewing court’s explicit decisions, but those issues decided by necessary implication.” Diocese of Quincy, ¶ 28.

I would hold that the law-of-the-case doctrine barred ITW from raising the exclusive-remedy defense on remand following our decision in Hiatt I.