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HOBBY v. JOHNS-MANVILLE SALES CORP.

October 7, 1983

HELEN HOBBY, ETC., PLAINTIFF,
v.
JOHNS-MANVILLE SALES CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

Before the Court are motions for Summary Judgment by the following defendants: Keene Corporation, Armstrong Cork Corporation, Celotex Corporation, Standard Insulation, Inc., Pittsburg Corning, and GAF Corporation. On September 20, 1983, these motions were argued before the Court and several issues were raised regarding the applicable statute of limitations as well as factual questions regarding decedent's alleged exposure to defendants' products. The Court will address the statute of limitations arguments in this order, as these pertain to all defendants.

Some defendants have taken the position that plaintiff's cause of action for wrongful death is barred under the holding of Lambert v. Village of Summit, 101 Ill. App.3d 1034, 60 Ill.Dec. 778, 433 N.E.2d 1016 (1st Dist. 1981). Lambert held that if the statute of limitations for personal injuries has run at the time of decedent's death, no claim for wrongful death can be brought by the estate. In the present case, it is apparent to the Court that Melrose Hobby's cause of action for personal injuries accrued when he was diagnosed as having asbestosis. In the Court's opinion, this occurred in September of 1979, as the deposition of a Dr. Iraj Delfani indicates that he informed Mr. Hobby he had malignant epithelial mesothelioma which was probably caused by asbestos exposure. (See Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981) and the cases cited therein which hold a cause of action for asbestosis accrues at the time of diagnosis, i.e. at the time Mr. Hobby "was aware of his illness and its cause." Mitchell v. United Asbestos Corp., 100 Ill. App.3d 485, 55 Ill.Dec. 375, 376, 426 N.E.2d 350, 351 (5th Dist. 1981).) However, if Melrose Hobby's cause of action accrued in September of 1979, the statute of limitations had not run at the time of his death on May 2, 1980, and the narrow holding of Lambert is inapplicable. This Court is hesitant to expand the holding of Lambert to require plaintiff to bring her cause of action for wrongful death within the statute of limitations applicable to decedent's cause of action for personal injuries. Such a holding would, in effect, make actions brought under the Wrongful Death Act survival actions, thus making the statute of limitations for the Wrongful Death Act meaningless. Moreover, the Illinois Supreme Court has noted that causes of action brought under the Survival Act are of a different nature than those brought under the Wrongful Death Act:

  The statutes were conceptionally separable and
  different. The one related to an action arising upon
  wrongful death; the other related to a right of
  action for personal injury arising during the life of
  the injured person.

Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583, 586-587 (1974).

The different nature of the two statutes does, however, have a bearing on some of plaintiff's claims. In Mitchell v. United Asbestos Corp., 100 Ill. App.3d 485, 55 Ill.Dec. 375, 426 N.E.2d 350 (5th Dist. 1981), an Illinois Appellate Court held that the statute of limitations for survival actions applied to bar the widow's claim for medical expenses, lost earnings and pain and suffering of the decedent. Defendants argue that under the rationale of Mitchell plaintiff's claims in the present case would likewise be barred. Since Mr. Hobby's cause of action accrued in September of 1979 and since suit was not filed until February 18, 1982, defendants state that these actions are barred under the applicable sections of the limitations act:

    Actions for damages for an injury to the person, or
  for false imprisonment, or malicious prosecution, or
  for a statutory penalty, or for abduction, or for
  seduction, or from criminal conversation, shall be
  commenced within 2 years next after the cause of
  action accrued.
    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 or her
  representations before the expiration of that time,
  or within one year from his or her death whichever
  date is the later.

Ill.Rev.Stat., ch. 110, Paragraphs 13-202, 13-209 (1982). Plaintiff argues that her claim for medical and funeral expenses is not governed by the Survival Act, but by the Family Expense Statute. Ill.Rev.Stat., ch. 40, Paragraph 1015 (1981). It seems clear that under Illinois law the widow has a cause of action under the Family Expense Act for medical and funeral expenses. Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163 (1960). However, the issue concerns which statute of limitations is applicable to such actions. Plaintiff cites several cases holding that since the Family Expense Act contains no applicable statute of limitations, actions brought under the Act are governed by the five-year limitation contained in chapter 110, Paragraph 13-205 of the Illinois Revised Statutes: ". . . all civil actions not otherwise provided for . . ." This argument was not addressed in Mitchell.

The cases cited by plaintiff, however, predate the enactment of Paragraph 13-203:

    Actions for damages for loss of consortium or other
  actions deriving from injury to the person of another
  shall be commenced within the same period of time as
  actions for damages for injury to such other person.

Ill.Rev.Stat., ch. 110, Paragraph 13-203.

Paragraph 13-203 in effect overruled a long line of Illinois cases holding that actions for loss of consortium were governed by the general five year statute of limitations. In the case of Mitchell v. White Motor Company, 58 Ill.2d 159, 317 N.E.2d 505, the issue was whether the two year statute of limitations for personal injuries or the five year general statute of limitations applied to actions for loss of consortium. Mitchell cited opinions by Illinois and Federal courts holding the five year statute of limitations rather than the two year statute of limitations for injury to the person applicable to causes of action under the Family Expense Act and claims for loss of consortium. 317 N.E.2d 505 at 506. The Court agreed with the cases holding the five year general statute of limitations applicable to such actions:

    It is noted that many of the consequential-damage
  actions, held by the cases cited in the annotation to
  be included within the terms "for person injury" or
  "for injury to the person," are of the same nature as
  the consequential-damage actions which our appellate
  courts in the cases cited above have held not to be
  included within the meaning of this same language as
  used in our limitations statute. To the contrary, our
  appellate courts have held that this language in our
  limitations statute applies only to direct personal
  injury to the plaintiff. Our legislature has long
  acquiesced in this interpretation of this language.
  We find the inaction of our legislature in the face
  of the judicial construction which has been given to
  the meaning of the statute more persuasive ...

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