Gregory v. Beazer East

• Decision Date: 03 July 2008
• Docket Number: No. 1-06-3597.,1-06-3597.
• Parties: Stacey GREGORY, Individually and as Special Administrator of the Estate of Larry Gregory, Deceased, Plaintiff-Appellant, v. BEAZER EAST, Bondex International, Exxon Mobil, Georgia-Pacific Corporation, and Union Carbide Corporation, Defendants-Appellees. (A.W. Chesterton, BMI, a/k/a Blow Mix, Inc., Brand Insulation, Certainteed Corporation, Chicago Bridge and Iron, Commonwealth Edison, Foseco, Inc., Garlock Sealing Technologies, General Electric, Ingersoll Rand, John Crane, Inc., Lincoln Electric Corporation, Metropolitan Life Insurance Company, Pittsburgh Metals Purifying, a/k/a Treesdale, Inc., Reynolds Aluminum, Riley Stoker, Ryco, Inc., formerly Ryco Chemical, T.H. Agriculture and Nutrition, U.S. Steel Corporation, U.S.I. Chemical Company, f/k/a Northern Petrochemical, and Westinghouse Electric, Defendants).
• Court: United States Appellate Court of Illinois

892 N.E.2d 563

Stacey GREGORY, Individually and as Special Administrator of the Estate of Larry Gregory, Deceased, Plaintiff-Appellant, v. BEAZER EAST, Bondex International, Exxon Mobil, Georgia-Pacific Corporation, and Union Carbide Corporation, Defendants-Appellees.

(A.W. Chesterton, BMI, a/k/a Blow Mix, Inc., Brand Insulation, Certainteed Corporation, Chicago Bridge and Iron, Commonwealth Edison, Foseco, Inc., Garlock Sealing Technologies, General Electric, Ingersoll Rand, John Crane, Inc., Lincoln Electric Corporation, Metropolitan Life Insurance Company, Pittsburgh Metals Purifying, a/k/a Treesdale, Inc., Reynolds Aluminum, Riley Stoker, Ryco, Inc., formerly Ryco Chemical, T.H. Agriculture and Nutrition, U.S. Steel Corporation, U.S.I. Chemical Company, f/k/a Northern Petrochemical, and Westinghouse Electric, Defendants).

No. 1-06-3597.

Appellate Court of Illinois, First District, Fifth Division.

July 3, 2008.

Nicholas J. Vogelzang and Michael W. Rathsack, Chicago, IL, for Appellant.

Victor P. Henderson and Christopher W. Carmichael, Holland & Knight LLP, Chicago, IL, for Appellee Georgia-Pacific.

H. Patrick Morris and David F. Fanning, Johnson & Bell, Ltd., Chicago, IL, Reagan W. Simpson King & Spaulding LLP, Houston, TX, for Appellee Exxon Mobil.

Presiding Justice FITZGERALD SMITHdelivered the opinion of the court:

Plaintiff-appellant Stacey Gregory, individually and as special administrator of the estate of her deceased husband Larry Gregory (plaintiff),¹ filed a complaint at law in Illinois sounding in negligence against a multitude of defendants,² including defendants-appellants Beazer East (Beazer), Bondex International (Bondex), Exxon Mobil (Mobil), Georgia-Pacific Corporation (Georgia-Pacific) and Union Carbide Corporation (Union Carbide), regarding her husband's contraction of mesothelioma and subsequent death. Mobil moved for summary judgment on various grounds, and the trial court granted this motion finding that Mobil owed no duty to decedent Larry. Meanwhile, Union Carbide moved for the application of Indiana law rather than Illinois law, and Georgia-Pacific joined in this motion. The trial court granted the motion, finding that choice-of-law factors in the cause favored Indiana law. Georgia-Pacific subsequently moved for summary judgment based on the Indiana statute of repose, and the trial court granted the motion finding that Indiana's statute of repose barred plaintiff's claim against Georgia-Pacific.

Pursuant to motions presented before this court, Bondex was dismissed as a party to the appeal on March 14, 2007, Union Carbide was dismissed as a party on July 25, 2007, and Beazer was dismissed as a party on December 19, 2007, thereby leaving only Mobil and Georgia-Pacific as relevant defendants. On appeal from the grant of Mobil's motion for summary judgment and Georgia-Pacific's motion for the application of Indiana law, plaintiff contends that the trial court erred in finding that Mobil owed no duty to Larry to warn him of the presence of asbestos in its facility where he worked and that the trial court erred when it determined that Indiana law applied to the claim against Georgia-Pacific for manufacturing and selling its joint compound without including a warning that this product contained asbestos. Plaintiff asks that we reverse the order granting summary judgment to Mobil and remand the matter for further proceedings. Plaintiff also asks that we reverse the order finding that Indiana law applies and enter judgment that Illinois law applies and, accordingly, reverse the order granting summary judgment to Georgia-Pacific; alternatively, plaintiff asks that we reverse the order finding that Indiana law applies, reverse the grant of summary judgment to Georgia-Pacific, remand the matter for further proceedings, and grant any other appropriate relief. For the following reasons, we affirm.

BACKGROUND

Larry worked as a pipe fitter. He was a life-long resident of Indiana; plaintiff and the beneficiaries of Larry's estate are also Indiana residents. In 1970-71, Larry worked for four months at a Mobil project in Joliet, Illinois, which consisted of the initial construction of a refinery. Mobil hired Fluor Corporation (Fluor) as the general contractor on that job; Chicago Bridge & Iron (CBI) became the contractor for the welding portion of the work, and CBI hired Petroleum Piping as a subcontractor. Larry was employed by Petroleum Piping and was one of eight pipe fitters from Petroleum Piping hired to do the welding work at the Mobil project. Larry was supervised daily by a CBI inspector and received all his instructions and tools from Petroleum Piping. Although Mobil made the ultimate decisions regarding acceptance or rejection of the work, design changes, and work stoppage, Larry did not look to Mobil for direction, supervision or anything else regarding the project. Joseph D'Ambrisi, a former Mobil manager of the Joliet refinery, confirmed this in his deposition in this cause. D'Ambrisi testified that Fluor supervised the Joliet construction site and had "total responsibility for the construction of the refinery," including selecting the subcontractors and managing their work. D'Ambrisi further testified that Mobil did not have any inspectors, supervisors or workers of its own at the site; while Mobil monitored the progress of the refinery's construction and had a general right to control access to the property, it had contracted with Fluor to "supervise, inspect, expedite and control all phases of the work."

Larry performed hot welding inside and outside of the pipes at the refinery. During his four months at the Mobil plant, he worked mainly on the cat cracker, an important piece of machinery, still present today, that refines oil and stirs it into gasoline. To protect against the heat from the pipes, Larry used blankets and gloves containing asbestos, which were supplied by CBI. He used these items repeatedly, until they could no longer be used. At this time, no one told Larry that there was asbestos in these items or that asbestos could be harmful to his health, and no one provided him with any respiratory aides or other protective materials at the jobsite.

In addition to his work at the Mobil refinery, Larry testified that he completed approximately 150 home remodeling jobs on the side from 1966 to 1976, mainly in Illinois. Principally, he would remove and replace plumbing and toilets in bathrooms. This sometimes required him to replace and reinstall drywall. Larry testified that beginning in 1972, he used a premix joint compound on these jobs made by Georgia-Pacific to mud the drywall seams and make them smooth. Larry would apply the compound, let it dry and then sand it, a process he would repeat three times. This resulted in a great amount of dust. There were no warnings for asbestos exposure on Georgia-Pacific's packaging of the compound at that time. Georgia-Pacific discontinued manufacturing all asbestos-containing products in 1977. Larry could not remember any of the names of his remodeling clients or the addresses of his jobsites, nor could he produce any receipts indicating when he did these jobs. Affidavits were included in the record from Larry's former wife and a coworker both testifying that, although they knew Larry at this time, they never saw him perform such remodeling jobs in addition to his welding work.

Following his initial work at the Mobil refinery, Larry returned to do periodic jobs there several times in the 1970s, 1980s and 1990s in different capacities and for different contractors. For example, in 1974-75 he worked for a time for a contractor called Hunter in the coker units of the refinery removing gaskets and replacing pipe insulation, which generated dust. Also, in the 1980s and 1990s, he worked for a contractor called BMW, performing maintenance and shutdowns of various portions of the refinery, which included removing gaskets, stripping old insulation and working with welding rods, all of which generated dust. As with his initial work there, Larry was supervised and directed by his contractors and received no supervision or direction from anyone at Mobil during any of these jobs.

Larry went on to work for several other employers at several different jobsites, principally in Indiana, where, he admitted, he was exposed to asbestos. The majority of his income during his years of work was derived from his work in that state.

Larry was diagnosed with mesothelioma, which was medically attributed to asbestos exposure. In 2005, he brought a negligence suit in Illinois against, among others, Mobil, due to the time he spent working at the Joliet refinery, and Georgia-Pacific, due to his use of its product in his Illinois remodeling jobs. Larry alleged that Mobil failed to warn him of the presence and danger of asbestos at the refinery, and that Georgia-Pacific manufactured and sold its joint compound without warning him that it contained asbestos, exposure to which was dangerous. During the pendency of this litigation, Larry died.

As the cause progressed, Mobil moved for summary judgment on several grounds, alternatively asserting that the Illinois statute of repose barred plaintiff's claim, that it owed no duty to Larry as the employee of an independent contractor, and that Larry could not provide sufficient evidence in support of the proximate causation element of negligence. The trial court granted Mobil's motion on the basis that it owed no duty to Larry. First, the court noted that plaintiff could only specifically identify Larry's exposure to asbestos at Mobil through the asbestos blankets and gloves he used in his four-week project there in 1970-71. Then, upon examining the evidence, the court concluded that "there is no evidence that Mobil controlled the means or methods by which [Larry] performed his work on Mobil's premises." The court reasoned that, pursuant to section 414 of the Restatement (Second) of Torts (Restatement (Second)...