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Costello v. Unarco Industries

OPINION FILED FEBRUARY 6, 1986.

MARION COSTELLO, INDIV. AND AS EX'R, APPELLANT,

v.

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



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 1, 1986.

On October 23, 1981, plaintiffs, Frank Costello and Marion Costello, filed this action in the circuit court of McLean County against defendants, distributors of asbestos, alleging that defendants sold asbestos which was used at the shipyard where plaintiff Frank Costello had been employed from Autumn 1942 through the Spring of 1945 and that as the result of exposure to said asbestos particles, Frank Costello contracted mesothelioma, a malignancy caused by exposure to asbestos. The second amended complaint, as amended, alleged that by reason of such exposure Frank Costello had developed asbestos disease which is caused by exposure to asbestos and that on or after September 1980 he first knew or should have known both that an injury had occurred and that the injury was caused by the wrongful act of another. The second amended complaint, as amended, also alleged that Frank Costello died of asbestos disease on April 27, 1982, and that plaintiff Marion Costello had been appointed executor of the estate of Frank Costello and brought this action for the decedent's loss under the Survival Act, decedent's wrongful death, and to recover for damages which she had sustained by reason of injury to her marital relationship. The amended complaint contained counts based on strict liability in tort and others based on negligence.

The circuit court, holding that those counts were barred by reason of section 13-213 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-213), dismissed with prejudice the counts based on strict liability. The circuit court also dismissed certain counts based on negligence, but no appeal was taken from that portion of the order. The appellate court affirmed (129 Ill. App.3d 736), and we allowed Marion Costello's petition for leave to appeal (94 Ill.2d R. 315).

Section 13-213 of the Code of Civil Procedure, after defining certain terms used therein, in pertinent part, provides:

"(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.

(c) No product liability action based on the doctrine of strict liability in tort to recover for injury or damage claimed to have resulted from an alteration, modification or change of the product unit subsequent to the date of first sale, lease or delivery of possession of the product unit to its initial user, consumer or other non-seller shall be limited or barred by subsection (b) hereof if:

(2) the action commenced within the applicable limitation period and, in any event, within 10 years from the date such alteration, modification or change was made, unless defendant expressly has warranted or promised the product for a longer period and the action is brought within that period, and

(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred. In any such case, if the person entitled to bring the action was, at the time the personal injury, death or property damage occurred, under the age of 18 years, or under legal disability, or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.

(g) The provisions of this Section 13-213 of this Act apply to any cause of action accruing on or after January 1, 1979, involving any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979." Ill. Rev. Stat. 1983, ch. 110, pars. 13-213(b), (c)(2), (d), (g).

Plaintiff contends that the tortious conduct resulting in the death of Frank Costello occurred prior to the passage of section 13-213. She argues that defendant's action of selling the asbestos without adequate warnings was completed long before January 1, 1979; that in September 1980, Costello learned for the first time that he had been injured and that the injury was wrongfully caused by another and the effect of section 13-213 as applied by the circuit and appellate courts was to bar his cause of action at the instant of its discovery. Citing Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill.2d 161, and Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, plaintiff argues that "a statute shortening the period of limitation will not be retroactively applied to terminate a cause of action unless the party has a reasonable amount of time after the amendment's effective date in which to file his action."

In its brief, defendant H.K. Porter Company, Inc., contends that the 12- and 10-year limitations periods set forth in subparagraph (b) bar any action commenced subsequent to the expiration of those periods. It argues that, read together, subsections (b) and (d) provide for injuries which are not immediately discoverable and that the maximum period to which any conceivable set of circumstances could extend the limitations period is 20 years from the date of the first sale. Amicus curiae Advocate Mines Limited contends that the express provisions of the statute make it applicable to any cause of action accruing on and after January 1, 1979, regardless of the dates of exposure. The brief of amicus curiae Illinois Defense Counsel states that it adopts the brief of Advocate Mines Limited, which adequately presents and argues the issues which it intended to raise. Pursuant to leave granted, amicus curiae the Illinois Trial Lawyers Association filed a brief essentially adopting the arguments presented by plaintiff.

Although the appellate court has considered the issue, this is the first instance of this court's being required to construe subparagraph (g) of section 13-213. In addition to the contentions made concerning the applicability and construction of section 13-213, the parties have briefed and argued the question of its constitutionality. Our earlier decisions require that we attempt to give effect to the expressed intent of the General Assembly and avoid constructions which render portions of the statute meaningless or void. (People v. Tarlton (1982), 91 Ill.2d 1.) "If a reasonable construction will uphold the constitutionality and validity of a statute, that is the interpretation this court will give the statutory language." In re Marriage of Eltrevoog (1982), 92 Ill.2d 66, 70-71.

The precise question presented is whether the provision of subparagraph (g) that section 13-213 applies "to any cause of action accruing on or after January 1, 1979, involving any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979," serves to bar plaintiff's cause of action filed in 1981 arising from his exposure ...


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