Handley v. Unarco Industries, Inc.

• Decision Date: 09 May 1984
• Docket Number: No. 4-82-0380,4-82-0380
• Citation: 79 Ill.Dec. 457,124 Ill.App.3d 56,463 N.E.2d 1011
• Parties: , 79 Ill.Dec. 457 John V. HANDLEY; Robert Day; R.E. Deitz; Lee E. Hayes; Walter Lehr; Mary I. Smith, Administrator of the Estate of Wesley H. Smith, deceased, and individually; Joseph I. Finfrock; Leslie D. Thacker; Delora Stewart; Delora Stewart, as Administrator of the Estate of William P. Stewart, deceased, and individually; Vernadine T. Thacker, as Administrator of the Estate of Charles A. Thacker, deceased, and individually; Edith M. Babb, as Administrator of the Estate of William P. Tynan, deceased, and individually; Betty J. Redman, as Administrator of the Estate of George Redman, and individually; William J. Dugan, as Administrator of the Estate of Merle Dugan, deceased, and individually; Gladys Nevius as Administrator of the Estate of Ernest L. Nevius, deceased, and individually; Anna Edith Ringo, as Administrator of the Estate of Tracy E. Ringo, deceased, and individually; and Helen Bratcher as Administrator of the Estate of Ray Bratcher, deceased, and individually, Plaintiffs-Appellants and Cross-Appellees, v. UNARCO INDUSTRIES, INC., Defendant, and Owens-Corning Fiberglas Corporation, Defendant-Appellee and Cross-Appellant, North American Asbestos Corporation, Defendant-Appellee, and Johns-Manville Corporation; Johns-Manville Sales Corporation; Raybestos- Manhattan, Inc.; Grefco, Inc.; Egnep (Pty) Limited; Cape Asbestos Fibres, Ltd.; and Cape Industries Limited, Defendants.
• Court: United States Appellate Court of Illinois

Page 1011

463 N.E.2d 1011

124 Ill.App.3d 56, 79 Ill.Dec. 457

John V. HANDLEY; Robert Day; R.E. Deitz; Lee E. Hayes Walter Lehr; Mary I. Smith, Administrator of the Estate of Wesley H. Smith, deceased, and individually; Joseph I Finfrock; Leslie D. Thacker; Delora Stewart; Delora Stewart, as Administrator of the Estate of William P Stewart, deceased, and individually; Vernadine T. Thacker as Administrator of the Estate of Charles A. Thacker, deceased, and individually; Edith M. Babb, as Administrator of the Estate of William P. Tynan, deceased, and individually; Betty J. Redman, as Administrator of the Estate of George Redman, and individually; William J. Dugan, as Administrator of the Estate of Merle Dugan, deceased, and individually; Gladys Nevius as Administrator of the Estate of Ernest L. Nevius, deceased, and individually; Anna Edith Ringo, as Administrator of the Estate of Tracy E. Ringo, deceased, and individually; and Helen Bratcher as Administrator of the Estate of Ray Bratcher, deceased, and individually, Plaintiffs-Appellants and Cross-Appellees, v. UNARCO INDUSTRIES, INC., Defendant, and Owens-Corning Fiberglas Corporation, Defendant-Appellee and Cross-Appellant, North American Asbestos Corporation, Defendant-Appellee, and Johns-Manville Corporation; Johns-Manville Sales Corporation; Raybestos- Manhattan, Inc.; Grefco, Inc.; Egnep (Pty) Limited; Cape Asbestos Fibres, Ltd.; and Cape Industries Limited, Defendants.

No. 4-82-0380.

Appellate Court of Illinois, Fourth District.

May 9, 1984.

James Walker, Ltd., Bloomington, for plaintiffs-appellants and cross-appellees.

Heyl, Royster, Voelker & Allen, Springfield, for N.A. Asbestos; Frederick P. Velde, Springfield, of counsel.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Owens-Corning; D. Kendall Griffith, Thomas M. Crisham, Frederick S. Mueller, Joanna C. New, Chicago, of counsel.

TRAPP, Justice:

The issue is whether a default judgment against one group of tort-feasors in one action bars a separate action against another group of tort-feasors who were originally joined in the first action but later were dismissed without prejudice where all of the tort-feasors are alleged to be jointly and severally liable for plaintiffs' injuries caused by exposure to asbestos. In the cross-appeal we consider whether suits alleging intentional torts against employers, whose business involves the use of asbestos material, are barred by the exclusive remedy provisions of the Workers' Occupational Diseases Act. (Ill.Rev.Stat.1981, ch. 48, pars. 172.40, 172.46.) We reverse the order of summary judgment in the direct appeal, affirm the denial of defendants' motion to dismiss in the cross-appeal and deny both motions which we have taken with the case.

On May 19, 1980, plaintiffs, John Handley, et al., brought suit in the circuit court of McLean County (80-L-93) against defendants Owens-Corning Fiberglas Corporation and North American Asbestos Corporation, and other defendants not parties to this appeal, seeking compensatory and punitive damages for injuries they or their decedents received as a result of exposure to asbestos while employed by Unarco Industries and its successor, Owens-Corning Fiberglas Corporation, at a plant in Bloomington, Illinois. The defendants named in the action were the employers, suppliers, and distributors of asbestos products. Plaintiffs' complaint pleaded various theories of recovery and sought to hold the defendants jointly and severally liable on individual claims and claims brought on behalf of deceased employees' estates.

Prior to bringing suit in case No. 80-L-93, on December 29, 1978, Delora Stewart, individually, and on behalf of all others similarly situated, sued all of the same defendants in this appeal in case No. 78-L-201, also seeking to hold the defendants jointly and severally liable for injuries received by plaintiffs, and others similarly situated, from exposure to asbestos at the Bloomington plant. Also on December 29, 1978, Delora Stewart, Vernadine Thacker and Betty Redman, individually, and as representatives of their decedent's estates, as well as on behalf of all others similarly situated, brought suit in case No. 78-L-202 against the defendants in this appeal. Again, the complaint pleaded various theories of recovery and sought to hold the defendants jointly and severally liable for damages under the Wrongful Death Act (Ill.Rev.Stat.1981, ch. 70, par. 1), the Survival Act (Ill.Rev.Stat.1981, ch. 110 1/2, par. 27-6), and under section 15 of "An Act to revise the law in relation to husband and wife" (Ill.Rev.Stat.1981, ch. 40, par. 1015). All of the plaintiffs in these last two suits are plaintiffs in the instant cause No. 80-L-93.

A number of the defendants were served with process in 78-L-201 and 78-L-202 but did not appear, and on June 19, 1979, an order of default was entered, on plaintiffs' motion, against Cape Industries, Ltd., EGNEP, Ltd., and Cape Asbestos Fibers, Ltd. (Cape group), in 78-L-201 and 78-L-202 on behalf of the named plaintiffs in those suits and all others similarly situated. Shortly after the default order had been entered, plaintiffs in 78-L-201 and 78-L-202, dismissed without prejudice, defendants North American Asbestos Corporation, Owens-Corning Fiberglas Corporation, and other defendants not parties to this appeal. Cause Nos. 78-L-201 and 78-L-202 then proceeded to trial on damages against the Cape group which had been defaulted; all of the plaintiffs in this suit (80-L-93) participated in the trial on damages; and a judgment was entered in favor of the named plaintiffs in this suit against the defaulters, assessing specific amounts of damages for individual claims and claims brought on behalf of the decedents' estates. Most of the plaintiffs who appeared at the damage trial were neither named plaintiffs in 78-L-201 and 78-L-202 nor were they members of any certified class, although all of them were represented by the same counsel.

Because plaintiffs had taken default judgments and participated in the trial on damages, defendants North American Asbestos Corporation and Owens-Corning Fiberglas Corporation, among others, moved for summary judgment in this case. The trial court had granted a similar motion for summary judgment in a companion case and granted these summary judgment motions adopting the defendants' reasoning. Defendants argued that the plaintiffs could not bring several lawsuits against the same defendants seeking recovery on a theory of joint and several liability--proceeding to trial and obtaining judgments against those defendants who defaulted, and thereafter pursuing a separate judgment in a separate lawsuit against other defendants who had been voluntarily dismissed without prejudice from the first suit--when all suits alleged an indivisible injury to plaintiffs and sought to hold the defendants jointly and severally liable. The trial court reasoned that a plaintiff who seeks recovery in a single case against multiple defendants who are alleged to be jointly and severally liable for a wrong, may default any defendant who does not answer but should not prove up damages against the defaulted defendant until liability has been established as to all defendants. The trial court held that if plaintiffs choose to prove up damages and obtain a money judgment against defaulted defendants, plaintiffs could not then seek a money judgment against other alleged joint tort-feasors who were named in the original action. The court stated that Illinois law was old on this issue but suggested that taking of a judgment against one joint tort-feasor in a case where several are sued operates to discontinue the suit as to all the other defendants. To permit otherwise, the trial court reasoned, would be to permit several judgments rather than a single judgment for the whole of the injury to the plaintiff. The trial court found persuasive the reasoning of In re Uranium Antitrust Litigation (7th Cir.1980), 617 F.2d 1248, which sets forth the procedure to be followed in a case where multiple defendants are sued on a theory of joint and several liability and some default. The trial court concluded that "[t]he Plaintiff alleged a single, unified 'damage' on a number of theories of liability against a number of Defendants. The Plaintiff then elected to proceed against [the defaulters] and obtained a default money judgment against them. In so doing, Plaintiff abandoned, as a matter of law, her claims against the other alleged joint tort-feasors."

Both in the trial court and on appeal, defendants cite various authority for the rule that a plaintiff cannot continue a cause of action as to a joint and several tort-feasor when he has already received a money judgment against another tort-feasor in the same suit, most notably, Davis v. Taylor (1866), 41 Ill. 405. Defendants argue that once plaintiffs recovered a money judgment against the default Cape group in 78-L-201 and 78-L-202 they were barred from maintaining an action against them since the lawsuits alleged that all defendants were jointly and severally liable for plaintiffs' injuries. We do not take issue with the Davis rule as stated by the defendants, but we find it inapplicable here and accordingly reverse the order of summary judgment and remand for further proceedings.

We begin first with the principal authority relied upon by the defendants, the case of Davis. In Davis, Taylor brought an action in trover against three defendants to recover damages for the value of personal property which was allegedly taken by the defendants. Taylor recovered a verdict and judgment was rendered in his favor against all of the defendants except Sarah Young who had been served with process but not included in the judgment. On appeal, the defendants argue that under the common law "unit judgment rule" which required the trial court to enter one judgment disposing of the claims against all of the defendants, the court erred in...