United States District Court, Northern District of Illinois, E.D
March 31, 1981
JOHN D. MCDANIEL ET AL., PLAINTIFFS,
JOHNS-MANVILLE SALES CORP., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Hooker Chemical & Plastics Corp. ("Hooker") has moved
to dismiss claims filed by Nellie W. Aker, Drew N. Barton,
Marjorie T. George, Savannah Hawthorne, Nellie M. Scott, Lorene
C. Scott and Costah M. Stidham ("plaintiffs") under the Illinois
Survival Act, Ill.Rev.Stat. ch. 110 1/2, § 27-6 (the "Survival
Act"). Plaintiffs are the representatives of now-deceased
employees (the "decedents") of Johns-Manville Sales Corp.
("Johns-Manville") who allegedly contracted respiratory diseases
and other ailments ("asbestosis") caused by their inhaling
asbestos fiber while employed at Johns-Manville. Hooker
allegedly supplied raw asbestos to Johns-Manville, which in turn
produced various asbestos insulation products. For the reasons
stated in this memorandum opinion and order Hooker's motion is
Under the Survival Act "actions to recover damages for an
injury to the person" survive a person's death and may be
brought on his or her behalf by a representative. Hooker argues
that plaintiffs failed to bring their actions under the Survival
Act within the applicable limitations period under Ill.Rev.Stat.
ch. 83, §§ 15 and 20:
Actions for damages for injury to the person . . .
shall be commenced within two years next after the
cause of action accrued (Section 15).
If a person entitled to bring an action dies before
the expiration of the time limited for the
commencement thereof, and the cause of action
survives, an action may be commenced by his
representative before the expiration of that time, or
within one year from his death whichever date is
later (Section 20).
Each plaintiff failed to file his or her Survival Act claim
within two years of the decedent's death. Hooker argues that
because the latest date on which a decedent's cause of action
might have "accrued" was the date of death, the Survival Act
claims are time-barred.
Plaintiffs urge that the "discovery rule," which does not
trigger the running of a "limitations period" until a plaintiff
knows or should have known of the fact and (to a limited
extent) cause of the injury for which he or she seeks relief,
should be applied to actions brought under the Survival Act.
Because the lawsuits were assertedly
filed within two years of the date decedents (had they lived)
should have known of the nature and cause of their injuries,
plaintiffs conclude that the claims based on the Survival Act are
As stated at some length in one of the two other Johns-Manville
Asbestosis cases opinions issued contemporaneously with this one,
the Court's proper role in diversity cases is akin to that of its
state trial court counterpart. See also, National Can Corp. v.
Whittaker Corp., 505 F. Supp. 147, 148-49 n. 2 (N.D.Ill. 1981).
Controlling decisions of the Illinois Supreme Court are
necessarily binding here.
No decision by that Court or any of the Illinois Appellate
Courts has squarely addressed the current issue: whether the
discovery rule applies to claims under the Survival Act. But the
Illinois Supreme Court's statement in National Bank of
Bloomington v. Norfolk & Western Ry. Co., 73 Ill.2d 160, 172, 23
Ill.Dec. 48, 383 N.E.2d 919 (1978) is highly relevant and must be
considered, as a state trial court would be required to consider
it, to be the law (emphasis added):
The law, of course, has always recognized that, if a
person survives, he may bring a common law or
statutory action against a party whose wrongful
conduct has caused him such personal injury. At
common law, however, the same action would abate upon
the death of the injured person. To remedy this
injustice, a survival statute was enacted (originally
in 1872) to allow an action, such as the instant
action to recover damages for an injury to the
person, to survive the death of the injured
person. . . . 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.
As the Illinois Supreme Court stated in Nolan v.
Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1,
421 N.E.2d 864, 49 U.S.L.W. 2568 (Ill.S.Ct. Feb. 21, 1981), the
"discovery rule" is that "the cause of action accrues when the
plaintiff knows or should have known of an injury and that the
injury was caused by the wrongful acts of another." If that
two-fold knowledge or imputed knowledge had concurred during a
decedent's lifetime, the Survival Act would have preserved the
claim for the representative — but by definition an action
brought over two years after death would have been untimely
filed. If conversely such knowledge or imputed knowledge did
not concur during a decedent's lifetime (as plaintiffs assert
in this case), Nolan teaches that the cause of action had not
"accrued to the decedent before he died," and National Bank of
Bloomington teaches that there was simply no action to be kept
alive by the Survival Act.
In an opinion issued contemporaneously with this one this
Court holds that the discovery rule does apply to actions under
the Wrongful Death Act.*fn1 Plaintiffs assert that given the
broad language in Nolan, the Wrongful Death and Survival Acts are
indistinguishable for purposes of that rule: Both should be
subject to its application.
There is to be sure an element of anomaly in the two results
reached by this Court. Were it free to construct its own Illinois
jurisprudential universe, it might well have shaped one or the
other conclusion differently. But it is mandated to mirror
Illinois law as pronounced by the state courts,*fn2 and
Illinois law (at least as declared to date) does not parallel
the two Acts:
(1) As to the Wrongful Death Act this Court had to
consider not only Nolan but, more importantly, a line
of Illinois cases construing that Act in a manner
strongly suggesting the result the Court reached.
(2) Plaintiffs can claim no analogous support in
the case law regarding the Survival Act. Nolan alone,
only indirectly relevant to the issue presented by
Hooker's motion, cannot override the direct and
recent construction of the Act in National Bank of
Unless and until controlling Illinois authority directs
otherwise, the Court must adhere to the last-cited case and
dismiss plaintiffs' claims under the Survival Act.
This is one of three contemporaneously-issued opinions in the
Johns-Manville Asbestosis cases. Because of the proliferation of
motions in the more than 50 cases consolidated for pre-trial
purposes, the Court is adopting the following procedure:
(1) On or before April 24, 1981 all parties
litigant are directed to apprise this Court by letter
(with copies of course to all other counsel) of the
actions to which the various rulings in this opinion
(2) All such letters shall also include a statement
identifying the fully-briefed motions (if any) that
remain to be decided in these cases after issuance of
these March 31, 1981 opinions.