People v. Asbestospray Corp.

• Decision Date: 08 July 1993
• Docket Number: No. 4-92-0441,4-92-0441
• Citation: 186 Ill.Dec. 462,616 N.E.2d 652,247 Ill.App.3d 258
• Parties: , 186 Ill.Dec. 462 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. ASBESTOSPRAY CORPORATION and Keene Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 652

616 N.E.2d 652

247 Ill.App.3d 258, 186 Ill.Dec. 462

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. ASBESTOSPRAY CORPORATION and Keene Corporation, Defendants-Appellees.

No. 4-92-0441.

Appellate Court of Illinois,

Fourth District.

Argued April 13, 1993.

Decided July 8, 1993.

Roland W. Burris, Atty. Gen., Chicago, Shawn W. Denney, First Asst. Atty. Gen., Rosalyn B. Kaplan (argued), Sol. Gen., Alison E. O'Hara, Marilyn A. Kueper, Asst. Attys. Gen., for plaintiff appellant.

Howard C. Emmerman (argued), Jeffrey S. Johnston, Katz, Randall & Weinberg, Chicago, for Asbestospray Corp.

Harry G. Sachrison, Jr., Andrew R. Makauskas, Sweeney and Riman, Ltd., Chicago, for Keene Corp.

Presiding Justice STEIGMANN delivered the opinion of the court:

In October 1991, the trial court dismissed the State's action for damages against two foreign corporations based on the time bar of section 13-213(b) of the Code of Civil Procedure (Code) and the time bar and substantive provisions of section 13-214(b) of the Code. (Ill.Rev.Stat.1989, ch. 110, pars. 13-213(b), 13-214(b).) The State appeals, arguing that the trial court erred in concluding (1) the State was not immune from the "repose" provisions contained in those sections of the Code, and (2) an asbestos manufacturer was entitled to the protections of section 13-214(b) of the Code. We reverse and remand.

On October 19, 1990, the State filed a five-count complaint against defendants Asbestospray Corporation (Asbestospray) and Keene Corporation (Keene), manufacturers of asbestos-containing products used in the 1969 through 1970 construction of a public building housing the offices of the Illinois Attorney General in Springfield. The complaint recited claims for negligence, strict product liability, wilful and wanton misconduct, negligent misrepresentation and conspiracy and sought damages incurred in an asbestos-abatement program undertaken in that building.

Pursuant to motions filed by defendants and the State's election to stand on its complaint, the circuit court dismissed the State's complaint as untimely pursuant to sections 13-214(b) and 13-213(b) of the Code, finding (1) the repose provisions of section 13-213(b) of the Code constitute substantive law applicable equally to public bodies and to private individuals from which the State was not immune (citing In re Estate of Bird (1951), 410 Ill. 390, 397, 102 N.E.2d 329, 333); (2) the repose provisions of the "construction" statute, section 13-214(b) of the Code, expressly applied to the State to bar its cause of action; and (3) the protections of section 13-214(b) extended to defendant Keene's manufacture of asbestos (citing Signode Corp. v. Normandale Properties, Inc. (1988), 177 Ill.App.3d 526, 531, 126 Ill.Dec. 797, 800-01, 532 N.E.2d 482, 485-86). The State's subsequent motion for reconsideration was denied on April 22, 1992.

The State first argues that the trial court erred in dismissing its complaint as untimely because the State retained a common law exemption from the statutory time bar which might otherwise have defeated its cause of action against defendants. Section 13-213(b) of the Code imposes time limits for bringing an action based on product liability and reads as follows:

"(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier * * *." Ill.Rev.Stat.1989, ch. 110, par. 13-213(b).

The State argues that the common law maxim of nullum tempus occurrit regi (nullum tempus ) exempts the State from the operation of a statute of limitations, unless by its terms the statute expressly includes the State, county, municipality, or other governmental agency. (Clare v. Bell (1941), 378 Ill. 128, 130-31, 37 N.E.2d 812, 814.) Historically, the nullum tempus doctrine emerged from concepts of sovereign power and prerogative. "The common law fixed no time as to the bringing of actions. Limitations derive their authority from statutes. The king was held never to be included, unless expressly named." (United States v. Thompson (1878), 98 U.S. 486, 489, 25 L.Ed. 194, 195; see also Division of Old Age Assistance v. Lyman (1939), 373 Ill. 27, 30, 25 N.E.2d 49, 50 (rights of the sovereign are never impaired absent a statutory provision clearly manifesting a legislative intent to abdicate the sovereign prerogative).) In modern law the continued viability of the doctrine is supported by policy judgments that the public should not suffer as a result of the negligence of its officers and agents in failing to promptly assert causes of action which belong to the public. See Board of Education v. A, C & S, Inc. (1989), 131 Ill.2d 428, 472, 137 Ill.Dec. 635, 655-56, 546 N.E.2d 580, 600-01; City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill.2d 457, 461, 71 Ill.Dec. 720, 722, 451 N.E.2d 874, 876.

Defendants do not dispute the application of nullum tempus to "procedural" statutes of limitation but assert that section 13-213(b) includes a provision of repose which they characterize as "substantive" law which binds the State as well as private parties and from which the State can claim no exemption. In support of their position, defendants cite cases distinguishing the function of statutes of limitation from statutes of repose. (See Highland v. Bracken (1990), 202 Ill.App.3d 625, 632, 148 Ill.Dec. 104, 109, 560 N.E.2d 406, 411 ("A statute of repose is essentially different from a statute of limitations, in that a limitations statute is procedural, giving a time limit for bringing a cause of action, with the time beginning when the action has ripened or accrued; while a repose statute is a substantive statute, extinguishing any right of bringing the cause of action, regardless of whether it has accrued"); Thornton v. Mono Manufacturing Co. (1981), 99 Ill.App.3d 722, 726, 54 Ill.Dec. 657, 660, 425 N.E.2d 522, 525, quoting Rosenberg v. Town of North Bergen (1972), 61 N.J. 190, 199, 293 A.2d 662, 667 ("[t]he function of the statute [of repose] is thus rather to define substantive rights than to alter or modify a remedy").) Neither of these cases supports the view that the State may not exercise its right of exemption from the operation of section 13-213(b) under nullum tempus.

The trial court relied on the "substantive" characterization given to the repose provision in Thornton and dicta extracted from Bird in concluding the State was not exempt from the repose provision of section 13-213(b) of the Code. The supreme court in Bird likened a probate nonclaim statute (which barred claims not filed within nine months of the opening of the estate) to "other substantive rules of law which are equally applicable to the State as to private individuals." (Bird, 410 Ill. at 397, 102 N.E.2d at 333.) A general statute of repose cannot be equated with the nonclaim probate statute enacted as part of a comprehensive probate code creating and circumscribing rights to claim against a decedent's estate and facilitating the expeditious administration of estates. The repose provision of section 13-213(b) cannot be equated to that recognized in Bird; the State's cause of action exists solely by virtue of the common law. The public policy underlying the concept of nullum tempus differs substantially from the public policy that underlies the repose provision in the probate code.

Moreover, in contrast to the trial court's finding, all substantive rules of law do not necessarily apply with equal force to the State and private parties. See, e.g., Ill.Rev.Stat.1991, ch. 127, par. 801 (with certain exceptions, the State shall not be made a party or a defendant in any cause of action); In re Special Education of Walker (1989), 131 Ill.2d 300, 307, 137 Ill.Dec. 575, 578, 546 N.E.2d 520, 523 (State's immunity to the imposition of statutory post-judgment interest was not waived in the absence of language showing an explicit legislative intent to impose liability upon the State).

A, C & S involved consolidated actions by 34 public school districts against manufacturers and suppliers of asbestos-containing products for the cost of abatement of asbestos in those buildings. The trial court held the applicable statute of limitations barred all claims. In affirming the appellate court's reversal, the supreme court noted that section 13-213 of the Code contained no language expressly including governmental entities within the limitations set forth in the statute and, in the absence of a specific manifestation of such legislative intent, refused to read the statute so as to remove "the common law immunity" afforded governmental entities. (A, C & S, 131 Ill.2d at 477, 137 Ill.Dec. at 658, 546 N.E.2d at 603.) Although the supreme court did not distinguish the limitations and repose provisions of section 13-213 of the Code in finding the school districts exempt from the operation of the time bar, the court likely considered the repose provision because sales of the asbestos products used in the construction of the schools occurred as early as 1946, which would have triggered that portion of the statute.

Defendants have failed to persuade us that the State's immunity, successfully invoked in the school districts' product liability action for abatement of asbestos in A, C & S, should fail to protect public rights here merely because defendants invoke the repose provision of section 13-213(b) of the Code. (See Bellevue School Dist. No. 405 v. Brazier Construction Co. (1984), 103 Wash.2d 111, 118-20, 691 P.2d 178, 182-83 (a statute of repose creates no statutory rights as does a nonclaim statute and differs from a statute of...