Kessinger v. Grefco, Inc., 4-93-0183

• Decision Date: 15 November 1993
• Docket Number: No. 4-93-0183,4-93-0183
• Parties: , 191 Ill.Dec. 356 Jearl KESSINGER, Jr., Special Administrator of the Estate of Jearl Kessinger, Sr., deceased, Plaintiff-Appellant, v. GREFCO, INC., Cape Industries, PLC, and Joan Holtze, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 946

623 N.E.2d 946

251 Ill.App.3d 980, 191 Ill.Dec. 356

Jearl KESSINGER, Jr., Special Administrator of the Estate of Jearl Kessinger, Sr., deceased, Plaintiff-Appellant, v. GREFCO, INC., Cape Industries, PLC, and Joan Holtze,

Defendants-Appellees.

No. 4-93-0183.

Appellate Court of Illinois,

Fourth District.

Argued Aug. 24, 1993.

Decided Nov. 15, 1993.

James Wylder (argued), James Walker, Ltd., Bloomington, for plaintiff-appellant.

Edward D. D'Arcy, Jr. (argued), Johnson & Bell, Ltd., Chicago, for defendants-appellees.

Justice KNECHT delivered the opinion of the court:

Plaintiff Jearl Kessinger, Jr., special administrator of the estate of Jearl Kessinger, Sr. (deceased), appeals from an order of the circuit court of McLean County which dismissed the wrongful death action against defendant Grefco, Inc. (hereinafter defendant), with prejudice, finding a prior judgment obtained against it by the deceased during his lifetime barred the action. We affirm.

On October 28, 1992, plaintiff was appointed special administrator of the estate of Jearl Kessinger, Sr., his father. On that same day, plaintiff filed a two-count complaint, in his capacity as special administrator, against defendant and Cape Industries, PLC, and Joan Holtze.

Count I was a wrongful death count directed solely at defendant. It alleged defendant sold diatomaceous earth, an ingredient in pipe covering and cardboard insulation products, to decedent's employer, Union Asbestos and Rubber Company, of Bloomington, Illinois, to which decedent was exposed to between 1953 and 1967. It further alleged decedent contracted fibrosis of the lungs as a result of this exposure. It also contended defendant sold the diatomaceous earth knowing exposure to its particles would cause fibrosis of the lungs and knew the plant workers were unaware of the hazardous properties of the material. Defendant was cited as being negligent by (1) failing to warn decedent exposure to the diatomaceous earth caused fibrosis of the lungs and (2) failing to provide decedent with instructions as to safe methods of handling and processing the material. This negligence of defendant was alleged to have been the proximate cause of decedent's death. Decedent died on October 28, 1990. As a result of decedent's death, plaintiff alleged he and his brother, Tracy Kessinger, suffered pecuniary losses. Count II of the complaint was directed solely at Joan Holtze and Cape Industries, PLC.

In response to plaintiff's complaint, defendant filed a motion for involuntary dismissal of plaintiff's action, pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-619). Defendant contended in 1985 decedent brought a products liability action against it, seeking to recover damages for lung problems allegedly caused by exposure to the diatomaceous earth manufactured by it. A jury later found defendant liable to decedent in the amount of $275,000, which was reduced to $260,000 because of a prior settlement between decedent and Raymark Industries, Inc. On appeal, the Federal Court of Appeals entered judgment on the jury verdict in favor of decedent, finding the evidence supported a conclusion defendant breached its duty to warn decedent. (See Kessinger v. Grefco, Inc. (7th Cir.1989), 875 F.2d 153.) The judgment was satisfied in 1989. Because decedent brought a suit against defendant during his lifetime for his injuries and received a verdict in his favor, defendant contended decedent would be precluded by principles of res judicata from bringing a similar suit had he lived, and, therefore, plaintiff was precluded from bringing the instant action.

By order dated February 11, 1993, the court granted defendant's motion to dismiss, finding the previous judgment obtained by decedent against defendant for injuries sustained by his exposure to diatomaceous earth barred the wrongful death action based on the same exposure. It further made a finding pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), stating there was no just reason to delay enforcement or appeal of this order. This appeal followed.

The single issue presented is whether the judgment entered in the personal injury action against defendant in favor of decedent during his lifetime bars the instant wrongful death action.

At common law there was no cause of action to recover damages for the wrongful death of a decedent, and there is no such action presently, except as provided by the legislature. (Li Petri v. Turner Construction Co. (1967), 36 Ill.2d 597, 600, 224 N.E.2d 841, 843; Wilbon v. D.F. Bast Co. (1978), 73 Ill.2d 58, 61, 22 Ill.Dec. 394, 395, 382 N.E.2d 784, 785.) Also, at common law a decedent's cause of action for negligence abated upon death. (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 172, 23 Ill.Dec. 48, 52, 383 N.E.2d 919, 923.) In 1853, the legislature enacted the Wrongful Death Act (Act) (see Ill.Rev.Stat.1991, ch. 70, par. 0.01 et seq.) and created an independent cause of action for damages arising from decedent's death caused by wrongful act, neglect or default. (Ill.Rev.Stat.1991, ch. 70, par. 1; Fountas v. Breed (1983), 118 Ill.App.3d 669, 672, 74 Ill.Dec. 170, 173, 455 N.E.2d 200, 203.) Its purpose is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to decedent's death. (In re Estate of Finley (1992), 151 Ill.2d 95, 101, 176 Ill.Dec. 1, 3, 601 N.E.2d 699, 701.) Although the action is to be brought under the Act by and in the name of the personal representative of the deceased person, the legislative intent of the Act is that the claims brought are those of the individual beneficiaries. Mitchell v. United Asbestos Corp. (1981), 100 Ill.App.3d 485, 502, 55 Ill.Dec. 375, 387, 426 N.E.2d 350, 362; Wilbon, 73 Ill.2d at 68, 22 Ill.Dec. at 398, 382 N.E.2d at 788.

Because there was no cause of action for wrongful death at common law, the wrongful death statute is the source of determining who shall sue and under what conditions. (Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill.App.3d 634, 636, 108 Ill.Dec. 740, 741, 509 N.E.2d 166, 167; Johnson v. Village of Libertyville (1986), 150 Ill.App.3d 971, 973, 104 Ill.Dec. 211, 213, 502 N.E.2d 474, 476.) Under general rules of statutory construction, statutes in derogation of common law are to be strictly construed and nothing is to be read into them by intendment or implication. Summers v. Summers (1968), 40 Ill.2d 338, 342, 239 N.E.2d 795, 798; see Kozak v. Retirement Board of the Firemen's Annuity & Benefit Fund (1983), 95 Ill.2d 211, 220, 69 Ill.Dec. 177, 182, 447 N.E.2d 394, 399.

The dispute at hand essentially involves the construction and interpretation of section 1 of the Act, which provides:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." (Emphasis added.) Ill.Rev.Stat.1991, ch. 70, par. 1.

The language of this section has been construed in several Illinois Supreme Court cases. In Mooney v. City of Chicago (1909), 239 Ill. 414, 423, 88 N.E. 194, 196, the court stated:

"The statute gives a right unknown to the common law in cases where the wrongful act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death. There being but one cause of action there can be but one recovery, and if [the deceased] had released the cause of action the statute does not confer upon his administrator any right to sue." (Emphasis added.)

In that case, the decedent had been injured on May 5, 1903. After the accident, he executed an instrument of release in satisfaction of the damages attributed to the accident, acknowledging full satisfaction of all claims against his employer on account of the injuries sustained, and received full payment prior to his dying on May 23, 1903. The supreme court maintained if decedent had released the cause of action, the administrator had no right to sue under the Act and held an instruction was erroneous in ignoring the affirmative defense of release.

Similarly, in Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 513-14, 30 N.E.2d 14, 18, the court stated:

"[T]he liability * * * created [by section 1 of the Act] depends upon the condition that the deceased, at the time of his death, had he continued to live, would have had a right of action against the same person or persons for the injuries sustained. If the deceased had no right of action at the time of his death, the personal representative has none under the [Act ]." (Emphasis added.)

In Biddy, plaintiff brought an action under the injuries act (Ill.Rev.Stat.1939, ch. 70, pars. 1, 2 (predecessor to the Act)) and alleged defendants' negligence in the operation of the airplane was the cause of decedent's death. Prior to decedent's death, he and his employer had elected to be bound by the Workmen's Compensation Act of the State of Michigan. Under the Michigan act, the decedent, had he lived, could have elected whether to demand compensation from his employer or sue defendants in an action for damages. The court stated:

"Had he [ (decedent) ] survived the accident and made the election to accept compensation...