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Costello v. Unarco Industries

OPINION FILED DECEMBER 28, 1984.

MARION COSTELLO, INDIV. AND AS EX'R OF THE ESTATE OF FRANK H. COSTELLO, DECEASED, PLAINTIFF-APPELLANT,

v.

UNARCO INDUSTRIES, INC., ET AL., DEFENDANTS (H.K. PORTER COMPANY, INC., DEFENDANT-APPELLEE).



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Asbestos case.

Mesothelioma.

Complaint dismissed.

We affirm.

October 23, 1981: Frank and Marion Costello filed a multicount complaint against a number of asbestos and asbestos product suppliers. The counts sounded in negligence and product liability and sought damages for personal injury to Frank and economic injury to Marion. The complaints were predicated on Frank's exposure to asbestos during the early 1940's, when he was employed at the Seneca shipyards.

April 27, 1982: Frank Costello died as a result of mesothelioma, a malignancy caused by exposure to asbestos particles. Marion was appointed executor of Frank's estate, and added a count predicated on Frank's wrongful death.

May 31, 1983: The circuit court dismissed with prejudice the counts of Marion's complaint sounding in strict liability, reasoning that the counts were time-barred by the operation of section 13-213 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-213) (statute of repose). The trial court also dismissed the counts sounding in negligence, reasoning that they were insufficient since the plaintiff had failed to allege that the defendants knew, or should have known, that exposure to asbestos particles of the type defendants were involved with would cause a disease of the type contracted by the decedent.

January 4, 1984: A judgment was entered for defendants when plaintiff elected to stand upon her complaint.

This appeal followed.

Before this court — as before the court below — plaintiff raises three basic arguments. First, plaintiff argues that the statute of repose is improperly applied to her in this case. Second, she argues that if the statute of repose is properly applicable to her case, it does not pass constitutional muster in that it fails to provide her with due process of law and violates the equal protection clause of the Illinois and United States constitutions, and it violates the special legislation clause of the Illinois Constitution (Ill. Const. 1970, art. IV, sec. 13), and denies plaintiff the certain remedy called for in article I, section 2, of the Illinois Constitution of 1970. Plaintiff's third argument is that under Illinois' liberal pleading requirements, her cause of action sounding in negligence was sufficiently supported by her complaint to withstand defendants' motion to dismiss. We affirm the dismissal of her complaint.

I. APPLICABILITY — STATUTE OF REPOSE

We turn first to the question of whether the statute of repose was properly applied to this case. The decision of this question must be reached first, for if the statute was not properly applied we need not reach the constitutional issues.

Both sides join issue concerning the propriety of the application of the statute to bar plaintiff's cause of action sounding in strict liability. The resolution of the issue requires a reconciliation of two cases involving the statute (Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App.3d 722, 425 N.E.2d 522; Balzer v. Inland Steel Co. (1981), 100 Ill. App.3d 1071, 427 N.E.2d 999), as well as construction of language in a supreme court case dealing with the statute of repose limiting actions against physicians in hospitals. Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, 447 N.E.2d 408.

Plaintiff's argument is that the statute cannot be applied to bar her cause of action where the causal occurrence was prior in time to the statute's passage but the accrual of the action was subsequent. In plaintiff's view, the decisional case law, represented by Balzer, is clear in its refusal to apply the statute to those injured prior to the effective date of the statute.

In Balzer, plaintiff was injured on January 3, 1978, while working at a sintering plant which had been constructed in the late 1950's. He filed his complaint on June 21, 1978. The statute of repose became effective January 1, 1979. The defendant filed a motion to dismiss, relying on the statute. The motion was denied and the denial upheld on appeal, the court reasoning that "there was no period of time whatsoever for Balzar to ...


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