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MCDANIEL v. JOHNS-MANVILLE SALES CORP.

June 24, 1982

JOHN D. MCDANIEL, ET AL., PLAINTIFFS,
v.
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 statutes.

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 injury.

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 sentence:

    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 ...


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