Wyness v. Armstrong World Industries, Inc.

• Decision Date: 25 October 1989
• Docket Number: No. 67554,67554
• Parties: , 137 Ill.Dec. 623, Prod.Liab.Rep. (CCH) P 12,286 Mary V. WYNESS, Indiv. and as Special Adm'r of the Estate of James J. Wyness, Deceased, Appellee, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Appellants.
• Court: Illinois Supreme Court

Page 568

546 N.E.2d 568

131 Ill.2d 403, 137 Ill.Dec. 623,

Prod.Liab.Rep. (CCH) P 12,286

Mary V. WYNESS, Indiv. and as Special Adm'r of the Estate of James J. Wyness, Deceased, Appellee, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Appellants.

No. 67554.

Supreme Court of Illinois.

Oct. 25, 1989.

Baker & McKenzie, Chicago (Francis D. Morrissey, Daniel J. Cheely, John A. Krivicich, Thomas W. Cushing, Paul B. O'Flaherty, Jr., and Anne T. Stinneford, of counsel), for appellant Armstrong World Industries, Inc., et al.

Wildman, Harrold, Allen & Dixon, Chicago (Edward J. Melia, of counsel), for appellant Combustion Engineering, Inc.

Burke & Burke, Ltd., Chicago (John M. Burke and Molly C. Mason, of counsel), for appellee.

Kevin J. Conway, Robert J. Cooney & Associates, and Kenneth J. Sophie, Jr., Law Offices of Gerard A. Facchini, Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice CLARK delivered the opinion of the court:

At issue in this case is whether the two-year filing provision of the Wrongful Death Act (Ill.Rev.Stat.1987, ch. 70, par. 1 et seq.) must be triggered by the "discovery rule" at such time that the cause of action may accrue prior to the death of an individual when a potential plaintiff seeking relief under the Act knows or reasonably should know of a wrongfully caused injury which may lead to death. We answer that question in the negative.

Appellee, Mary Wyness, initiated this action individually and as special administrator of the estate of her deceased husband, James Wyness, in the circuit court of Cook County, against various asbestos manufacturers and distributors. The one-count complaint alleged James Wyness' death was attributable to his prolonged exposure to asbestos-containing products during the course of his employment, causing asbestos-related lung cancer. Armstrong World Industries, Inc., Celotex Corporation, Keene Corporation, Eagle-Picher Industries, Inc., Pittsburgh-Corning Corporation and Combustion Engineering, Inc. (hereinafter appellants), filed a motion for summary judgment based on the contention that the limitations period for filing the action had run. The trial court denied the motion in part and granted the motion in part. Mary Wyness appealed and the appellate court reversed in part and affirmed in part, remanding the cause to the trial court. (171 Ill.App.3d 676, 680, 121 Ill.Dec. 600, 525 N.E.2d 907.) The defendants below, various asbestos manufacturers and distributors, appealed to this court. We granted review pursuant to our Rule 315(a) (107 Ill.2d R. 315(a)). For the reasons stated below, we affirm.

James J. Wyness, appellee's decedent, died on August 10, 1978, at the age of 52. From 1947 to 1978 he worked with various asbestos products as an insulator. Two months prior to James Wyness' death, his doctor confirmed that lung cancer discovered just the month before was asbestos related. Thus, Wyness' illness and its probable cause were known to both James and Mary Wyness since the beginning of June 1978. On August 8, 1980, Mary Wyness filed a wrongful death action in her own behalf and as administrator of her husband's estate. The suit was filed less than two years following the death of James Wyness.

Appellants moved for summary judgment in the trial court, asserting the running of the statute of limitations for personal injury actions (Ill.Rev.Stat.1987, ch. 110, par. 13-202) based on the deposition of Mary Wyness, wherein she indicated that she became aware of the causation of her husband's illness in June 1978. Appellants argued that a wrongful death action is a derivative of the personal injury action. The trial court granted partial summary judgment, ruling that Mary Wyness could not recover individually because the statute of limitations had run, since Mary learned of James' injury in June 1978; however, the trial court denied the appellants' motion for summary judgment against the administrator of the estate for the benefit of the Wyness children.

The appellate court affirmed in part and reversed in part (171 Ill.App.3d at 680, 121 Ill.Dec. 600, 525 N.E.2d 907), holding that the limitation period in the Wrongful Death Act (Ill.Rev.Stat.1987, ch. 70, par. 1 et seq.) is a two-year limitation period beginning on the date of death. The appellate court also held that the personal injury statute of limitations (Ill.Rev.Stat.1987, ch. 110, par. 13-202) does not apply to wrongful death claims except to the extent that it determines the viability of the decedent's claim at the time of death. (171 Ill.App.3d at 678-79, 121 Ill.Dec. 600, 525 N.E.2d 907.) We agree.

Section 1 of the Wrongful Death Act 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 * * *." (Ill.Rev.Stat.1987, ch. 70, par. 1.)

Section 2 of the Act further provides:

"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.

* * * * * *

Every such action shall be commenced within 2 years after the death of such person * * *." Ill.Rev.Stat.1987, ch. 70, par. 2.

The "discovery rule," first recognized by this court in Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656, creates an exception to limitation periods. The rule has been referred to as the "known or should have known" rule, and addresses the "problem * * * of balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue." (Rozny, 43 Ill.2d at 70, 250 N.E.2d 656.) This court joined other States in adopting the rule, noting that "the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue." (Rozny, 43 Ill.2d at 70, 250 N.E.2d 656.) Rozny involved a plaintiff who, in reliance on the survey prepared at the time the lot was purchased by the developer, bought a home built within the noted boundaries of the survey. Although the home was built in 1955, it was not until 1964 that the plaintiff discovered that portions of the driveway and garage encroached onto neighboring property. Although defendant argued that suit was barred by the statute of limitations, this court recognized the impossibility of commencing a suit prior to having any knowledge of "injury."

Although this court has not to date applied the discovery rule to wrongful death actions, appellants contend that this recognized exception should be applied to the case before us and should begin the running of the limitation period in a wrongful death action at the time when those who will benefit first knew of the wrongfully caused injury. In other words, the limitation period in this wrongful death case, according to appellants' theory, began to run in June 1978, approximately two months prior to the death of James Wyness, when Mary Wyness knew that her husband had lung cancer due to asbestosis. As we will discuss, however, in proffering their arguments, appellants both confuse our decisions which address actions brought under a survival theory (Ill.Rev.Stat.1987, ch. 110 1/2, par. 27-6) with those brought under a wrongful death theory (Ill.Rev.Stat.1987, ch. 70, par. 1 et seq.) and misconstrue our application of the discovery rule. Additionally, appellants ignore the plain language of the Wrongful Death Act which indicates that actions arising under its provisions shall be filed within two years "after the death." (Emphasis added.) Ill.Rev.Stat.1987, ch. 70, par. 2; see also Canteen Corp. v. Department of Revenue (1988), 123 Ill.2d 95, 105, 121 Ill.Dec. 267, 525 N.E.2d 73 (an undefined statutory term is to be given its ordinary and popular meaning); 2A N. Singer, Sutherland on Statutory Construction § 46.01, at 73-74 (4th ed. 1984) (interpretation of statutes begins with the plain meaning rule; words should be given their common and approved meaning).

This court described the distinctions between a survival action and a wrongful death action at length in Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583, and we need not repeat the entire analysis here. In essence, however, this court ended the long reign during which litigants had to choose between the survival and wrongful death actions and concluded that the two actions were distinct from one another; thereafter, a litigant could maintain both a survival action and a wrongful death action at the same time. (Murphy, 56 Ill.2d at 428, 308 N.E.2d 583.) A survival action allows for recovery of damages for injury sustained by the deceased up to the time of death; a wrongful death action covers the time after death and addresses the injury suffered by the next of kin due to the loss of the deceased rather than the injuries personally suffered by the deceased prior to death. (See Murphy, 56 Ill.2d at 431, 308 N.E.2d 583.) As this court noted in National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 23 Ill.Dec. 48, 383 N.E.2d 919:

"[The] survival statute was enacted (originally in 1872) to allow an action * * * to recover damages...