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 ...