APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
515 N.E.2d 684, 161 Ill. App. 3d 808, 113 Ill. Dec. 699
Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding. 1987.IL.1418
PRESIDING JUSTICE McMORROW delivered the opinion of the court. JOHNSON, J., concurs. JUSTICE JIGANTI, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW
Plaintiff Ruby VaSalle (plaintiff), administrator of the estate of her husband Charles VaSalle (VaSalle), filed a complaint against numerous manufacturers, distributors, or sellers of asbestos-containing insulation. The complaint sought damages resulting from VaSalle's adenocarcinoma of the lungs (lung cancer), caused by his exposure to defendants' asbestos products when he was employed as an insulator. Certain defendants filed a motion for summary judgment, claiming that plaintiff's causes of action were barred by the statute of limitations because they accrued when VaSalle discovered that he was suffering from asbestosis, seven years before the instant suit was filed. The trial court allowed defendants' summary judgment motion, and plaintiff appeals.
From 1941 to 1973, VaSalle worked as an insulator and was exposed to defendants' asbestos insulation products. He was notified that he had contracted asbestosis in 1972. In 1976, he filled out and signed a disability insurance claim in which he named "asbestosis" as the cause of his disability, and stated that his asbestosis condition was "due to employment." He apparently did not file any tort action for damages arising from the asbestosis. In September 1979, VaSalle was diagnosed as suffering from lung cancer caused by his exposure to asbestos. He died from the lung cancer a month later. In May 1980, plaintiff filed a tort action seeking damages relating to VaSalle's asbestos-originating lung cancer.
Certain defendants (who are appellees herein) filed a motion for summary judgment, claiming that the plaintiff's causes of action were barred by the statute of limitations. Following briefing and argument, the trial court found that plaintiff's claims accrued in 1972 when VaSalle was diagnosed as suffering from asbestosis, were therefore barred by the statute of limitations, and entered an order allowing defendants' summary judgment motion. Plaintiff appeals.
The question presented for review is whether defendants established as a matter of law that plaintiff's lawsuit was not timely filed within the two-year statute of limitations. (See Ill. Rev. Stat. 1985, ch. 110, pars. 13-202, 13-213; Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675; Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 424-25, 490 N.E.2d 665.) Plaintiff maintains that the statute of limitations commenced in 1979 when VaSalle learned that he had contracted lung cancer caused by his exposure to asbestos contained in defendants' insulation products. Defendants assert that plaintiff's causes of action accrued in 1972 when VaSalle discovered that he was suffering from asbestosis.
As a general rule, when a plaintiff suffers an obvious injury from a single, traumatic event, the statute begins to run when that event occurs. (See, e.g., Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 60, 501 N.E.2d 882.) However, where a plaintiff's injury is latent, that is, does not manifest itself until some time after defendant's wrongful act occurred, the plaintiff's cause of action is said to accrue when plaintiff knows or reasonably should know he has been injured by the wrongful conduct of another. This "discovery rule" obtains with respect to latent physical injuries regardless of whether the plaintiff's injury is sustained as the result of a single traumatic event or several ostensibly innocuous circumstances. See, e.g., Costello v. Unarco Industries, Inc. (1985), 111 Ill. 2d 476, 490 N.E.2d 675; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.
In Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, the Illinois Supreme Court held the "discovery rule" applicable to a tort claim brought by an individual suffering from asbestosis. The supreme court found that the factual setting of a person who worked for several years while exposed to asbestos, and only later learned that this exposure caused him to contract asbestosis, presented "a prime example of where, though the passage of time does create problems of proof, those problems are outweighed by the hardship to the plaintiff who neither knows or reasonably should know that he is being injured." (85 Ill. 2d 161, 168, 421 N.E.2d 864, 867.) The court found particularly persuasive that "in a case such as this, it is difficult to pinpoint a precise time when an injury occurred." (85 Ill. 2d 161, 168, 421 N.E.2d 864, 867.) It further ...