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Froud v. Celotex Corp.

OPINION FILED OCTOBER 25, 1983.

BEATRICE FROUD, INDIV. AND AS SPECIAL ADM'R, APPELLEE,

v.

THE CELOTEX CORPORATION ET AL., APPELLANTS. RITA WILLIAMSON, INDIV. AND AS ADM'R, APPELLEE,

v.

THE CELOTEX CORPORATION ET AL., APPELLANTS. SHIRLEY FRIDAY, INDIV. AND AS SPECIAL ADM'R, APPELLEE,

v.

THE CELOTEX CORPORATION ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Paul F. Elward, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Here we must decide whether a claim for punitive damages in a common law action for recovery on account of an injury to a person abates at the death of the injured person or survives the death by reason of the Survival Act (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6).

In each of these consolidated actions, which were filed in the circuit court of Cook County, the plaintiffs alleged that their decedents were victims of asbestosis after prolonged exposure to insulation products containing asbestos which were manufactured, distributed or sold by the 20 defendants. The plaintiffs further alleged that the defendants sold and distributed asbestos products with knowledge that they were dangerous and also concealed the dangers from the public. Two of the plaintiffs filed their actions after their illnesses were diagnosed and died subsequently as a result of peritoneal mesothelioma. The third died from bronchogenic carcinoma before filing any lawsuit, and his administrator brought an action on his behalf. Each complaint sets forth a count alleging common law wilful and wanton conduct, and, based upon these allegations, each plaintiff seeks recovery of a punitive award under the Survival Act. The circuit court dismissed all of the claims for punitive damages, reasoning that the Survival Act does not authorize the survival of common law claims for these damages. Its dismissal was accompanied by a finding under Rule 304(a) (87 Ill.2d R. 304(a)) that there was no just reason to delay appeal of its order, whereupon the plaintiffs appealed the punitive damages issue to the appellate court. That court reversed the dismissal of the claims (107 Ill. App.3d 654), and we granted leave to appeal.

The Survival Act provides in relevant part:

"In addition to the actions which survive by common law, the following also survive: * * * actions to recover damages for an injury to the person (except slander and libel) * * *." Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6.

The defendants contend that the precise issue presented here was decided by this court in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31. The plaintiffs argue that Mattyasovszky was either implicitly overruled or distinguished by National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160. The plaintiffs also urge that if Mattyasovszky holds that punitive damages claims do not survive in the absence of a specific statute of a type which was available to apply in National Bank which authorized such recovery, Mattyasovszky should be overruled.

We regard Mattyasovszky and National Bank as reconcilable. In the former this court held that a claim for punitive damages in a common law action did not survive. The court said:

"This statute [the Illinois Survival Act] has never been thought to authorize the award of punitive damages. The plaintiff's contention that it should now be construed to do so rests largely upon the recent decision of this court in Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, which authorized recovery for a decedent's pain and suffering during the interval between injury and death, as well as for pecuniary loss. But nothing in that opinion was intended to or did authorize the recovery of punitive damages. On the other hand, the opinion both intrinsically and through its reliance upon McDaniel v. Bullard (1966), 34 Ill.2d 487, emphasized the compensatory nature of damages authorized under the Survival Act. We find nothing in the Murphy case which suggests a change in the law of this State which for more than a hundred years has limited the recovery under the Survival Act to compensatory damages.

* * * The actions which survive under our statute are `actions to recover damages for an injury to the person,' and as we have pointed out, the very decisions that have recently expanded the right to recover under it have emphasized the compensatory nature of the recovery it authorizes." (Emphasis added.) Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 33-34.

The court in Mattyasovszky then considered whether Illinois courts> would recognize a common law action for injuries to a person who had died which included punitive damages. It concluded that, no matter how outrageous the defendant's conduct was, such an action was recognized only where "strong equitable considerations" existed such as the unavailability of any other remedy. (61 Ill.2d 31, 37.) Because the death involved in that case gave rise to two statutory actions, one permitting recovery of damages by the decedent's estate under the Survival Act and the other recovery by the next of kin under the Wrongful Death Act, this court refused to impose, in addition, a common law exaction against the defendant, under the label of exemplary damages, which "becomes a windfall for the plaintiff" (61 Ill.2d 31, 36).

In contrast, the recovery of punitive damages in National Bank was rationalized by a provision of the Public Utilities Act under which the action including the claim for punitive damages was instituted. The decedent was killed at an obstructed railroad crossing when the automobile in which he was a passenger was struck by a train. The Public Utilities Act prohibited obstructions at railroad crossings and also provided that a railroad would be liable to persons affected thereby "for all loss, damages or injury caused * * * or resulting" from any act or omission prohibited by the statute. (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 77.) It further provided that "if * * * the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment." (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 77.) The plaintiffs emphasize that the Survival Act does not distinguish between actions based on the common law and those based on a statute. In National Bank, however, the court, while acknowledging that under Mattyasovszky common law punitive claims abated on the death of the injured party, drew a distinction between punitive awards based on the common law and those based on a statute. Relying on that distinction, this court followed a different path in National Bank, where the punitive claim was part of a comprehensive regulatory scheme for public utilities. The court emphasized this difference by noting in National Bank:

"Here, in contrast to Mattyasovszky, punitive recovery was sought, not under the common law, but directly under the Public Utilities Act, which expressly provides that `if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by way of punishment.' (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.) The Survival Act itself neither authorizes nor prohibits punitive damages. It is merely the vehicle by which the cause of action, created by the Public Utilities Act, survives the death of the injured person when the action would otherwise have abated at common law. Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant's wrongful and wilful statutory violation. It would pervert the Act's intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the very act designed to vigilantly promote safety by public utilities. * * * Under the Act, defendant's punitive liability accrued from the moment decedent sustained personal injury and, upon decedent's death, his right to recovery passed unabated to his estate." (Emphasis added.) National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 173-74.

The keynote of the plaintiffs' position is that if actions for punitive damages expressly provided for by statute survive as in National Bank, this result must be by reason of the Survival Act. Thus, they argue that if the Survival Act permits punitive claims of that type to survive, there is no logical reason to hold, as Mattyasovszky did, that similar common law claims do not also survive. The National Bank holding does not, however, depend solely upon the Survival Act for the conclusion it reaches. Instead, it presumes that where the legislature specifically provides for recovery of exemplary damages as part of a comprehensive regulatory scheme such as that provided by the Public Utilities Act, the intention of the legislature was that the claim for a punitive award should be litigated regardless of whether the injured person continues to live. That claim is an integral component of the regulatory scheme and of the remedy which is available under it: it can no more be diminished by common law doctrines such as abatement than a statutory limitations period can be eroded by such equitable doctrines as tolling. (See, e.g., Demchuk v. Duplancich (1982), 92 Ill.2d 1, 6-7; Hartray v. Chicago Rys. Co. (1919), 290 Ill. 85, 86-87.) The Public Utilities Act is a regulatory statute, and the punitive damages provision is part and parcel of the Act. Were punitive damages not recoverable in every instance where a public utility was guilty of a wilful act or omission, the legislature might not have considered the Act a sufficient deterrent to adopt it. Thus, the theory of National Bank is that the punitive claim survives because of the Public Utilities Act itself.

Although not expounded upon in the National Bank opinion, the idea that the legislature intended that to carry out the regulatory plan for public utilities the claim for punitive damages should not abate upon the death of the injured person is also demonstrated by the final sentence of section 73 of the Public Utilities Act. That sentence permits "any person" to assert the punitive damage claim. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 77.) As we regard that ...


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