United States District Court, Northern District of Illinois, E.D
June 24, 1982
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
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.*fn1
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
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
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
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
(b) Someone suffers an injury that by itself
doesn't indicate it was caused by another's wrongful
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
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
established the words found on the claim forms were there when
signed by the Johns-Manville employees. But once again this is a
motion for summary judgment. Everything found on a claim form
signed by the Johns-Manville employee is certainly probative, and
it is incumbent on plaintiffs to offer admissible evidence
demonstrating certain words were not on the form when signed.
Plaintiffs have failed to present any such evidence.
One final point merits consideration. Plaintiffs contend in
some instances the Johns-Manville employee may have known he was
wrongfully injured but that does not necessarily mean the
representative filing this action had such knowledge. But under
the discovery rule the statute of limitations starts to run when
a person knows "or reasonably should know" that he has been
wrongfully injured. These were not cases of instantaneous
wrongful death, where the knowledge of the decedent's successors
is the only relevant consideration. Where the now-deceased
employee knew or should have known "both that an injury has
occurred and that it was wrongfully caused," the discovery clock
began ticking. Statutes of limitations are statutes of repose,
and the discovery rule represents an equitable tolling of the
limitations clock. Defendants should not be disadvantaged by any
failures of communication between a decedent and his successors
in interest, and nothing in the Illinois case law suggests that
the discovery clock once started should itself be interrupted by
any such factor.
This Court therefore holds that, absent a showing of some
special reason excusing the imputation of a decedent's knowledge
(or imputed knowledge under the "should have
known" branch of the discovery rule) to the present plaintiffs,
the plaintiffs stand in the shoes of their decedents for purposes
of the discovery rule. No such proof has been adduced in any of
the cases, and the propositions already announced apply with full
In light of the principles stated in this opinion, the
individual summary judgment motions can be dealt with quickly.
John McDaniel ("McDaniel")
ACL, Bell and Hooker have moved for summary judgment as to
McDaniel. McDaniel was an employee of Johns-Manville and is
bringing his own action. Plaintiffs have not contested the
motion, and it will be granted.
Nellie Aker ("Aker")
ACL, Bell and Hooker have moved for summary judgment as to
Aker. Aker's husband Virgil Aker filed a worker's compensation
claim September 15, 1976. Accordingly summary judgment is
appropriate against Aker.
Drew Barton ("Barton")
ACL and Bell have moved for summary judgment as to Barton.
Barton's Survival Act claims against ACL and Bell were dismissed
by this Court October 15, 1981 and May 22, 1981 respectively.
Barton's husband Elmer Barton filed a worker's compensation claim
December 31, 1975. Summary judgment is also appropriate as to
Marjorie George ("George")
ACL and Bell have moved for summary judgment as to George.
Plaintiffs have by letter advised this Court they are not
contesting ACL's motion. George's Survival Act claim against Bell
was dismissed by this Court May 22, 1981. In addition George's
husband Walter George filed a worker's compensation claim July
20, 1976. Accordingly summary judgment is appropriate against
Roy D. Grissom, Roy H. Grissom and Denise Grissom
Plaintiffs' original complaint named Roy H. Grissom — the
Johns-Manville employee — and his wife Denise Grissom. On March
24, 1978 Roy H. Grissom died and on July 2, 1981 Roy D. Grissom,
the administrator of Roy H. Grissom's estate, was substituted as
a plaintiff. ACL and Bell have moved for summary judgment against
all the Grissoms. Roy H. Grissom filed a worker's compensation
claim May 11, 1976. Summary judgment is appropriate as to the
Grissoms as well.
Savannah Hawthorne ("Hawthorne")
ACL and Bell have moved for summary judgment as to Hawthorne.
Hawthorne's Survival Act claims against ACL and Bell were
dismissed by this Court on the same dates as the Barton claims.
Hawthorne filed a worker's compensation claim December 17, 1975.
Therefore summary judgment is appropriate against Hawthorne.
Nellie Scott ("Scott")
ACL and Bell have moved for summary judgment as to Scott.
Scott's Survival Act claims against ACL and Bell were dismissed
by this Court on the same dates as the Barton claims. Scott's
husband Leonard Scott filed a worker's compensation claim
February 6, 1976. In addition Scott filed her own worker's
compensation claim with the above discussed accident description
June 3, 1976. Accordingly summary judgment is appropriate as to
Lyle Cameron ("Cameron")
ACL has moved for summary judgment against Cameron. Cameron
filed a worker's compensation claim July 27, 1976. Summary
judgment is thus appropriate as to Cameron.
Costah Stidham ("Stidham")
ACL has moved for summary judgment as to Stidham. Stidham's
Survival Act claim against ACL was dismissed by this Court
October 15, 1981. Stidham filed a worker's compensation claim
1976. Consequently summary judgment is appropriate as to Stidham.
There are no genuine issues of material fact, and the
defendants referred to in this opinion are entitled to judgments
as a matter of law, as to each of the specified plaintiffs.
Accordingly defendants' summary judgment motions under Rule 56