Mitchell v. United Asbestos Corp.

• Decision Date: 14 September 1981
• Docket Number: No. 79-566,79-566
• Citation: 100 Ill.App.3d 485,426 N.E.2d 350,55 Ill.Dec. 375
• Parties: , 55 Ill.Dec. 375 Jacqueline MITCHELL, et al., Plaintiffs-Appellees, v. UNITED ASBESTOS CORPORATION, et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 350

426 N.E.2d 350

100 Ill.App.3d 485, 55 Ill.Dec. 375

Jacqueline MITCHELL, et al., Plaintiffs-Appellees, v. UNITED ASBESTOS CORPORATION, et al., Defendants-Appellants.

No. 79-566.

Appellate Court of Illinois, Fifth District.

Sept. 14, 1981.

John L. McMullin, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Mo., Joseph R. Davidson, Bernard & Davidson, Granite City, Ill., Robert W. Schmieder, Wagner, Bertrand, Bauman & Schmieder, Belleville, Ill., for defendants-appellants.

Sandor Korein, Cohn, Carr, Korein, Kunin, Schlichter & Brennan, East St. Louis, Ill., for plaintiffs-appellees.

KASSERMAN, Presiding Justice:

Action was brought in a four-count complaint to recover damages for the wrongful death of Frank J. Mitchell, who allegedly died from the disease of asbestosis. Decedent died on October 14, 1972, and the complaint was filed in the circuit court of Madison County, Illinois, on October 15, 1974, the day following an Illinois legal holiday. Counts I and II of the complaint, filed by decedent's widow as administratrix of his estate, were for wrongful death. Count I alleged negligence, and Count II sought recovery under a theory of products liability. In Counts III and IV, the widow individually, and as administratrix and also as mother and guardian of decedent's children, sued for loss of consortium and for medical and surgical expenses, lost earnings, and pain and suffering of decedent because of disability until the time of his death. Count III alleged negligence and Count IV was based on products liability.

Following the filing of defendants' motions to dismiss all counts of the complaint, the trial court on October 17, 1979, entered an order which provided, inter alia, as follows:

"The joint motions of all defendants to dismiss Counts I, II, III and IV coming before the Court, argument having been heard by the Court and memorandums of law submitted to the Court, it is hereby ordered that defendants' motions to dismiss Counts III and IV of plaintiffs' complaint are hereby sustained and said Counts III and IV of plaintiffs' complaint are hereby dismissed with prejudice.

"The Court expressly finds that there is no just reason for delaying enforcement or appeal of this order in accordance with Civil Rule 110A Section 304(a).

"The Court further orders that defendants' motions to dismiss Counts I and II of plaintiffs' complaint are hereby overruled. The Court further finds that the above orders overruling defendants' motions to dismiss Counts I and II involve questions of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from this order would materially advance the ultimate termination of the litigation. The questions of law involved are (1) whether the administratrix of a Missouri resident's estate who is duly appointed by the Missouri courts is the proper plaintiff in an action filed pursuant to the Illinois Wrongful Death Act, and if she is not the proper plaintiff, whether her complaint should be dismissed; (2) whether the substantive laws including limitations periods and conflict of law rules, of Illinois or Missouri, is applicable to the issues raised in the motion to dismiss; (3) whether any claims presented in plaintiffs' complaint are barred by the applicable statutes of limitations; (4) whether Ill.Rev.Stat. Ch. 131, par. 1.11 (1973) is applicable in this action brought pursuant to Ill.Rev.Stat. Ch. 70, par. 2 (1973); (5) whether, and to what extent, the Missouri or Illinois wrongful death acts, including the repealed $50,000 limitation on wrongful death in the Missouri Wrongful Death Act, are applicable to this action. The Court specifically makes this finding in accordance with Civil Rule 110A Section 308(a)."

Defendants appeal from the trial court's order denying their motions to dismiss Counts I and II of plaintiffs' complaint and raise those questions certified to this court by the trial court under Supreme Court Rule 308(a) (Ill.Rev.Stat.1979, ch. 110A, par. 308(a)). Plaintiffs also appeal from the trial court's dismissal of Counts III and IV of the complaint.

At the outset, it should be noted that the trial court certified one of the questions of law involved as being whether a specified provision of Chapter 131 of the 1973 Illinois Revised Statutes is applicable to a suit filed under section 2 of chapter 70 of the 1973 Illinois Revised Statutes. We conclude, however, that the statutory provisions controlling the instant case are those which were in effect on the date of decedent's death and are found in the 1971 edition of the Illinois Revised Statutes. Parenthetically, both versions of the statutes are identical with the exception that under the 1971 edition, the amount recoverable in a wrongful death action is directed to be distributed to the "widow and next of kin" of the decedent while under the 1973 statutes, such distribution is to be made to the "surviving spouse and next of kin." Those individuals are obviously the same in the case at bar.

The record reveals that the decedent, Frank J. Mitchell, was, until his death at the age of 44 on October 14, 1972, a resident of St. Louis, Missouri. He worked in asbestos application as a pipe coverer in 1949 and 1950, then spent several years in military service. On his return to civilian life, he again began working with asbestos in 1954 as a member of Local 1, Heat and Frost Insulators and Asbestos Workers, AFL-CIO. Mitchell was a journeyman pipe coverer and was sent out on jobs by telephone calls from both his union and employers. He continued to work with asbestos-containing materials, such as insulation, for a variety of employers in both Missouri and Illinois until shortly before his death. During his career, he worked 50 to 60 percent of the time in Missouri and 40 to 50 percent of the time in Illinois. He paid income taxes in both Missouri and Illinois.

In 1971, the decedent began complaining of respiratory difficulties and shortness of breath. When he was hospitalized for tests, decedent was diagnosed as suffering pneumoconiosis, asbestosis, far advanced with pulmonary fibrosis, caused by inhalation of asbestos fibers. He was released and then returned to work, including work in Illinois; however, he continued to suffer shortness of breath and to lose time from work as a result of his illness. He began losing weight, was rehospitalized for five months, and subsequently died of asbestosis two weeks after his final release from the hospital. Surviving him were his wife, two minor children, and his mother.

Defendants are all foreign corporations. All are engaged in the manufacture, sale and distribution of products containing magnesium and asbestos, which are used for insulation, adhesion and construction. All defendants do business in Madison County, Illinois, and apparently most defendants are authorized to do business in both Illinois and Missouri.

Frank J. Mitchell died on October 14, 1972, a resident of St. Louis, Missouri, the state in which he had resided throughout his life. The record reflects that decedent's surviving wife, children, and mother were all residents of the State of Missouri. The record further reflects that all medical bills of decedent's last illness and his funeral bill were incurred in Missouri.

A petition for letter of administration of decedent's estate was filed in St. Louis County, Missouri, on October 11, 1974, and on October 15, Jacqueline Mitchell, decedent's widow, was appointed administratrix. On the same date, Mrs. Mitchell filed the four-count complaint in the circuit court of Madison County, Illinois. The complaint alleged that defendants did business in Madison County, Illinois, including manufacturing, distributing and selling various items containing asbestos; and that during the last years of his life, decedent was employed at various job sites in Illinois, during which time he was exposed to, contacted, and injested asbestos from those products.

At a subsequent time, all defendants joined in a document entitled "Motions Amending and Supplementing All Defendants' Prior Motions to Dismiss and/or to Strike," which raised the issues now before this court on appeal. After considering lengthy memoranda, the trial court denied all defendants' motions on May 20, 1977. Some defendants filed answers to plaintiffs' complaint, then moved both to reconsider the May 20, 1977 order and for leave to withdraw their answers. On October 21, 1977, the court granted all answering defendants leave to withdraw their answers and on October 17, 1979, granted the motions of all defendants to reconsider and vacated the May 20, 1977 order. The parties now appeal from additional provisions of the October 17, 1979 order overruling, in part, defendants' motions to dismiss or to strike and sustaining such motions in part.

The defendants appeal from the trial court's denial of their motions to dismiss Counts I and II of plaintiffs' complaint. The five issues certified by the trial court with respect thereto combine to present a significant question of choice of law. Defendants assert that procedural and substantive questions involved in the case should be governed by Missouri law, while plaintiffs contend that the appropriate law governing all questions is that of Illinois.

The statutes of Missouri and Illinois applicable to wrongful death which were in effect at the time of decedent's death are in direct conflict. Section 537.080 of the Missouri Wrongful Death Act (§ 537.080, R.S.Mo.1967) provided as follows:

"Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, * * * the person who * * * would have been liable if death had not ensued shall be liable to an action for damages, * * * which damages may be sued for and recovered.

(1) By the spouse or minor children, natural or adopted of the deceased, either jointly or severally, * * * and provided further that only one...