McDaniel v. Johns-Manville Sales Corp.

Decision Date24 June 1982
Docket NumberNo. 77 C 3534.,77 C 3534.
Citation542 F. Supp. 716
CourtU.S. District Court — Northern District of Illinois
PartiesJohn D. McDANIEL, et al., Plaintiffs, v. JOHNS-MANVILLE SALES CORP., et al., Defendants.

John C. Bulger, Doris Adkins, Cooney & Stenn, Chicago, Ill., for plaintiffs.

James Ozog, John E. Passarelli, Clausen, Miller, Gorman, Caffrey & Witous, P. C., Chicago, Ill., for Hooker Chemicals & Plastics Corp.

Richard R. Ryan, Peterson, Ross, Schloerb & Seidel, Chicago, Ill., for Bell Asbestos Mines, Ltd.

Clarold L. Britton, Patrick J. Phillips, Jenner & Block, Chicago, Ill., for Asbestos Corp., Ltd.


SHADUR, District Judge.

Defendants Asbestos Corporation, Ltd. ("ACL"), Bell Asbestos Mines, Ltd. ("Bell") and Hooker Chemicals & Plastics Corp. ("Hooker") move pursuant to Fed.R.Civ.P. ("Rule") 56 for summary judgment as to a number of individual plaintiffs on statute of limitations grounds. For the reasons stated in this memorandum opinion and order those motions are granted.1

Defendants were all brought into this lawsuit with the filing of plaintiffs' Second Amended Complaint October 17, 1978. Personal injury actions in Illinois are subject to a two-year statute of limitations. Ill.Rev.Stat. ch. 83, ¶ 15. That two-year statute of limitations applies even though most of the plaintiffs are presenting actions under the wrongful death and survival statutes.

As to the Survival Act claims, National Bank of Bloomington v. Norfolk & Western Ry. Co., 73 Ill.2d 160, 172, 23 Ill.Dec. 48, 52, 383 N.E.2d 919, 923 (1978) says:

The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.

Thus if the Johns-Manville employees' claim would be barred by the two year statute of limitations so would their representatives' actions under the Survival Act.

That is true under the Wrongful Death Act as well. It is true the Wrongful Death Act literally says an action is timely if filed within two years of the death. Ill.Rev.Stat. ch. 70, § 2. But a recent Illinois Appellate Court opinion held a wrongful death action barred because the decedent would have been barred from maintaining a personal injury suit of his own by the two-year personal injury statute of limitations. Lambert v. Village of Summit, 104 Ill.App.3d 1034, 60 Ill.Dec. 778, 433 N.E.2d 1016 (1st Dist.1982), leave to appeal denied May 28, 1982. Because the Illinois Supreme Court refused to take the case and there is no other indication it would hold to the contrary, this Court is bound by Lambert under Erie v. Tompkins concepts. Instrumentalist Co. v. Marine Corps League, 509 F.Supp. 323, 339 (N.D.Ill.1981); National Can Corp. v. Whittaker Corp., 505 F.Supp. 147, 148-49 n.2 (N.D.Ill.1981).

There is no dispute that all the Johns-Manville employees were injured well before October 17, 1976. Plaintiffs, however, seek refuge in the discovery rule. Thus the question on all these motions for summary judgment is identical: Could plaintiffs reasonably have discovered the existence of a cause of action before October 17, 1976?

Last year the Illinois Supreme Court clarified the nature of the discovery rule within the context of an asbestosis case. It held, Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 171, 52 Ill.Dec. 1, 5, 421 N.E.2d 864, 868 (1981):

We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed. In that way, an injured person is not held to a standard of knowing the inherently unknowable ... yet once it reasonably appears that an injury was wrongfully caused, the party may not slumber on his rights.

Here all the now-deceased employees were aware they had been injured long before October 17, 1976. Plaintiffs are forced to argue that such awareness did not extend, and should not reasonably have extended, to defendants as the cause of such injury.

Although defendants' motions involve many separate plaintiffs, they all present one common issue. At some time before October 17, 1976 each of the decedents filed a worker's compensation claim before the Illinois Industrial Commission. On the portion of the claim form that requested a description of the accident all the claims had an almost identical version of the following sentence:

Occupational disease claimed as a result of exposure on the job.

Thus as a threshold matter this Court must determine whether that statement alone indicates awareness sufficient to start the statute of limitations running.

It is true worker's compensation claims are a no-fault proceeding. Employees are compensated for any injury arising during the course of their employment. But even a layman ought to realize if the sort of serious illnesses suffered by plaintiffs were caused by some occupation-related exposure, wrongful conduct was involved. This Court therefore finds the worker's compensation claims filed by plaintiffs demonstrate an awareness both of injury and wrongful causation.

But a somewhat more difficult question remains. These summary judgment motions are brought by asbestos suppliers, not Johns-Manville. It might be argued plaintiffs did not discover their cause of action against the asbestos suppliers until they knew it was asbestos exposure that caused their injuries. That argument poses a question not really addressed by Nolan or any of the other discovery rule cases: Before a statute of limitations starts to run, must a plaintiff be aware not only of injury and wrongful causation, but also of the identity of the defendant?

Both the problem and its solution may be clarified by a simple hypothetical. If someone were walking along the street in an area below the O'Hare Field flight path and were suddenly hit by an object that fell out of the sky, he would know he was injured and such injury was likely wrongfully caused. Would the statute of limitations begin to run immediately or only when he discovered the identity of the party from whose aircraft the object came?

In this Court's view a plaintiff need not know the identity of the potential defendant before the statute of limitations begins to run. Essentially the discovery rule was designed to aid people who were injured by the wrongful acts of others and yet through no fault of their own are unaware of a potential lawsuit. Two situations are typical:

(a) Someone is injured by the act of another, but the injury does not manifest itself until many years later.
(b) Someone suffers an injury that by itself doesn't indicate it was caused by another's wrongful acts.

But when a person is injured and he knows it was wrongfully caused by the acts of some other person, he then has two years to investigate the situation and determine who is the correct defendant. As the Nolan quotation states the purposes of the discovery rule, they are not served by extending it to plaintiffs who know they are wrongfully injured and simply fail to investigate and determine the proper defendants.

That result can also be reached under Erie v. Tompkins principles. After all, the discovery rule is a judicially created addition to Illinois' statute of limitations. To date Illinois courts have not expressed or even indicated a third requirement for the discovery rule — knowledge of the identity of one who has wrongfully caused an injury. Absent a holding or a strong signal to that effect, this Court should not so dramatically expand the rule.

Unquestionably the worker's compensation claim form demonstrates plaintiffs were aware they had been injured and such injury was wrongfully caused. Plaintiffs might be able to avoid summary judgment if they could demonstrate no one knew asbestos could cause such injuries at the time those claim forms were filed. If that were the case plaintiffs would argue that even with all due diligence they could not have discovered their cause of action against asbestos manufacturers. But this is a motion for summary judgment, not a motion to dismiss. It would be incumbent on plaintiffs to create a fact issue by submitting admissible evidence. On that score they have failed. At best the evidence submitted by plaintiffs (their own depositions) only supports an argument that plaintiffs themselves were not aware asbestos was the cause of their injuries. Nothing submitted to this Court indicates that had plaintiffs investigated the problem they would have been unable to discover their potential cause of action against asbestos manufacturers.

In a few instances plaintiffs point out defendants have not...

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