Blazek v. Nicolet, Inc.

• Decision Date: 27 July 1988
• Docket Number: No. 86-2700,86-2700
• Citation: 527 N.E.2d 568,173 Ill.App.3d 324,123 Ill.Dec. 105
• Parties: , 123 Ill.Dec. 105, Prod.Liab.Rep. (CCH) P 11,916 Concetta BLAZEK, Administrator of the Estate of Kenneth Blazek, Deceased, Plaintiff-Appellant, v. NICOLET, INC., a corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 568

527 N.E.2d 568

173 Ill.App.3d 324, 123 Ill.Dec. 105,

Prod.Liab.Rep. (CCH) P 11,916

Concetta BLAZEK, Administrator of the Estate of Kenneth Blazek, Deceased, Plaintiff-Appellant, v. NICOLET, INC., a corporation, et al., Defendants-Appellees.

No. 86-2700.

Appellate Court of Illinois First District, Third Division.

July 27, 1988.

Loggans & Reiter, Chicago, for Blazek.

Kurnik Cipolla Stephenson Barasha & O'Dell, Arlington Heights (Thomas J. Platt, of counsel), for Nicolet, Inc.

Chadwell & Kayser, Chicago, for Raymark Industries.

Katten Muchin Zavis Pearl & Galler, Chicago, for GAF Corp.

Wildman Harrold Allen & Dixon, Chicago, for Combustion Engineering, Inc.

Baker & McKenzie, Chicago, for Armstrong World Industries, Flintkote Co., Celotex Corp., Eagle-Picher Industries, Fibreboard

Corp., HK Porter Co., Keene Bldg. Prod. Corp., Keene Corp., Owens-Corning Fiberglass Corp., Owens-Illinois, Inc., Pittsburgh Corning; Rock Wool Mfg. Co., National Gypsum, GAF Corp., CertainTeed Products Corp.

Justice RIZZI delivered the opinion of the court:

On September 13, 1985, plaintiff, Concetta Blazek, brought this cause of action individually and as special administrator of the estate of her deceased husband, Kenneth Blazek, to recover damages under the Illinois Wrongful Death Act (Ill.Rev.Stat.1985, ch. 70, par. 1 et seq.) against a number of asbestos and asbestos product suppliers. Plaintiff filed a first amended complaint on May 1, 1986, asserting counts sounding in both strict liability in tort (counts I and II) and common law negligence (counts III and IV). Plaintiff's complaint was predicated on Kenneth's exposure to asbestos particles from 1951 to 1952 when he was employed at the Union Asbestos and Rubber Company (UARC) in Cicero, Illinois. In her complaint, plaintiff alleged that as a result of his employment at UARC, Kenneth contracted mesothelioma, a malignant form of cancer caused by exposure to asbestos. Kenneth was diagnosed as suffering from mesothelioma on November 29, 1983, and he subsequently died as a result of the disease on September 18, 1984.

In response to plaintiff's first amended complaint, several defendants filed motions to dismiss the strict liability counts based upon the statute of repose applicable to product liability causes of action. Ill.Rev.Stat.1985, ch. 110, par. 13-213. The motion of defendant, Nicolet, Inc., was the first of these motions to be heard. Following extended argument of counsel, the trial court granted Nicolet's motion to dismiss on September 3, 1986, and dismissed the strict liability counts of plaintiff's complaint. The trial court determined that these counts were barred by reason of section 13-213 of the Code of Civil Procedure. Ill.Rev.Stat.1985, ch. 110, par. 13-213. Thereafter, analogous motions of the remaining defendants were heard by the trial court and granted. To simplify the record for appeal, the court entered an order consolidating all of its orders dismissing plaintiff's strict liability counts and declaring these orders final and appealable. This appeal followed. We affirm.

Section 13-213 is a statute of repose for product liability actions based on a theory of strict liability in tort. This statute established an outer limit in which actions on defective products may be instituted. This outer limit begins with the date the product was sold. An action in strict liability must be commenced within 12 years from the date of first sale, lease or delivery by a seller of a product, or within 10 years if the sale, lease or delivery of the product is to an initial user, consumer or other non-seller, whichever period expires first. Ill.Rev.Stat.1985, ch. 110, par. 13-213(b). Moreover, if the injury complained of occurs within any of the periods provided by subsection (b), the plaintiff may file a cause of action within two years after the date that he knew or reasonably should have known of the injury to his person. However, in no event shall such action be brought more than eight years after the date on which the personal injury occurred. Ill.Rev.Stat.1985, ch. 110, par. 13-213(d). The statute applies to "any cause of action accruing on or after January 1, 1979, involving any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979." Ill.Rev.Stat.1985, ch. 110, par. 13-213(g).

On appeal, plaintiff assigns as error the trial court's dismissal of counts I and II of her amended complaint sounding in strict liability. In support of her contention, plaintiff argues that defendants' actions of "mining, processing, manufacturing, selling, distributing and installing asbestos insulation and other asbestos products" without adequate warnings occurred prior to the adoption of section 13-213 and long before November 29, 1983, when Kenneth was diagnosed as suffering from mesothelioma. Therefore, section 13-213 barred any cause of action Kenneth possessed at the moment of his discovery that he was injured. Plaintiff argues that based upon our supreme court's decision in Costello v. Unarco Industries, Inc. (1986), 111 Ill.2d 476, 95 Ill.Dec. 822, 490 N.E.2d 675, she is entitled to a reasonable amount of time after the effective date of section 13-213 in which to file her cause of action. Plaintiff concludes that at the minimum, the eight-year period of repose set forth in section 13-212(b) would be a reasonable period of time after January 1, 1979, in which she and similarly situated plaintiffs could file causes of action sounding in strict-products-liability.

Defendants, however, argue that while a plaintiff is entitled to a reasonable period of time following the effective date of section 13-213 in which to institute a cause of action, adoption of the eight-year period of repose set forth in 13-212(b) would be unreasonable. Defendants further contend that Costello supports their position that plaintiff's cause of action, which was filed more than six years after the effective date of section 13-213, was not instituted within a reasonable period of time.

In Costello, the plaintiff filed suit on October 23, 1981, alleging that the defendant was strictly liable to the plaintiff as a result of his exposure to asbestos from Autumn 1942 through the Spring of 1945. The plaintiff alleged that "on or after September 1980 he first knew or should have known both that an injury had occurred and that the incident was caused by the wrongful act of another." Following the filing of his first complaint, the plaintiff died. Thereafter, the plaintiff's wife filed a cause of action sounding in strict liability and negligence. Both the circuit and appellate courts determined that the strict-products-liability action was barred by section 13-213. 111 Ill.2d 476, 477-78, 95 Ill.Dec. 822, 822-23, 490 N.E.2d 675, 675-76.

On appeal in Costello, the precise question presented to the supreme court was the construction and application to be given section 13-213(g) which renders section 13-213 applicable to any strict-products-liability action accruing on or after January 1, 1979. The issue considered by the court was whether section 13-213(g) barred the plaintiff's cause of action where: (1) his injuries arose as a result of asbestos exposure which ceased in 1945, (2) the injuries were not discovered until 1980 and (3) the plaintiff's complaint was not filed until 1981.

In its analysis of this issue, the Costello court initially noted that cases involving the statute of repose applicable to medical malpractice actions are analogous to the issue presently before it. The court then reviewed the reasoning behind its decisions in the medical malpractice cases (Anderson v. Wagner (1979), 79 Ill.2d 295, 37 Ill.Dec. 558, 402 N.E.2d 560; Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, 69 Ill.Dec. 191, 447 N.E.2d 408; Mega v. Holy Cross Hospital (1986), 111 Ill.2d 416, 95 Ill.Dec. 812, 490 N.E.2d 665), and concluded that while the plaintiff's cause of action was inchoate at the time of the effective date of section 13-213, any cause of action plaintiff may have had did not accrue until after the plaintiff discovered or should have discovered that his injuries were caused by the alleged wrongful act of the defendant. This awareness was subsequent to the effective date of section 13-213. The court then concluded:

We need not decide what would be a reasonable period after the effective date of the amendment to discover the condition. The cause was dismissed upon allowance of defendants' motions to dismiss and for purposes of this appeal the date of discovery alleged in the complaint must be taken as true. The record shows that the action was instituted within three years of the effective date of subparagraph (g) of section 13-213 and two years of discovery, and we hold that plaintiff's cause of action was timely filed. Costello, 111 Ill.2d 476, 484, 95 Ill.Dec. 822, 825, 490 N.E.2d 675, 678.

The decision of the Costello court was confined to the facts before it. The court did not define "reasonable time," but instead justified its decision that three years was a "reasonable time" by relying on its decisions in Mega and Moore, which permitted filings in medical malpractice actions up to four years after the enactment of the statute of repose, but foreclosed causes of action filed beyond that time. Costello 111 Ill.2d 476, 483-84, 95 Ill.Dec. 822, 824-26, 490 N.E.2d 675, 677-79.

Following t...