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11/10/88 Randy Wolford, v. Owens-Corning Fiberglas

November 10, 1988

RANDY WOLFORD, PLAINTIFF-APPELLANT

v.

OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLEE

OUR COURT IN MOHN

v.

INTERNATIONAL VERMICULITE CO. (1986), 147 ILL. APP. 3D 717, 720-21, 498 N.E.2D 375, 377, ADEQUATELY SET FORTH THE APPLICABLE LAW ON COLLATERAL ESTOPPEL AS FOLLOWS:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

530 N.E.2d 721, 176 Ill. App. 3d 312, 125 Ill. Dec. 563 1988.IL.1641

Appeal from the Circuit Court of McLean County; the Hon. Ronald C. Dozier, Judge, presiding.

Rehearing Denied December 14, 1988.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. KNECHT, J., concurs. JUSTICE LUND, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiff Randy Wolford filed an action in the circuit court of McLean County against defendant Owens-Corning Fiberglas Corporation, and others, alleging intentional tort relating to murder, fraud, and battery predicated upon plaintiff's exposure, while working for defendant, to dust of various products, including those containing asbestos. Defendant attacked the complaint by motion to dismiss, contending that the three counts of the complaint affecting the defendant stated Conclusions without sufficient fact allegations, thus lacking compliance with section 2-601 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-601). The trial court granted defendant's motion; plaintiff elected to stand on his pleadings; and the trial court dismissed plaintiff's cause of action against defendant with prejudice. Plaintiff appeals, contending that there was collateral estoppel because of the judicial determination of the same issue in a cause of action entitled Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 463 N.E.2d 1011. Defendant was also a defendant in Handley.

Defendant's position on appeal is that collateral estoppel is not applicable because the issue before this court in Handley, evolving from a motion to dismiss, related to an objection based upon substance and not form. In the present case, the motion to dismiss concerns an objection to form, and not substance.

The complaints in the present case and in Handley are sufficiently alike so as to be considered identical. The counts are voiced in language indicating intentional torts, obviously for the purpose of avoiding the exclusive provisions of the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, pars. 172.40 through 172.46). The issue of collateral estoppel was presented to the trial court by the indication of the similarities of pleadings and by the furnishing of the Handley appellate opinion. The trial court in Handley had ruled in plaintiffs' favor on the procedural sufficiency of the complaint, as well as ruling on the substantive issue.

"A party may be estopped from relitigating an issue or question when: the issue in the former case and pending case are identical; a final judgment on the merits has been rendered in the cause asserted as a bar; and the party against whom estoppel is asserted is the same party or in privity with a party in the first cause. Additionally, the party against whom estoppel is asserted must have had a full opportunity to litigate the issue or question. (Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7, 398 N.E.2d 9, 12; American Buyers Club of Danville, Illinois, Inc. v. Belmont Marketing, Inc. (1981), 95 Ill. App. 3d 330, 332, 420 N.E.2d 207, 208; In re Estate of Ellis (1975), 460 Pa. 281, 287, 333 A.2d 728, 731.) The doctrine will not be applied if inJustice results to the party. (Fred Olson Motor Service v. Container Corp. of America (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098.) Collateral estoppel is most often asserted by a defendant in an effort to preclude relitigation of an issue which the plaintiff has previously litigated against another defendant and lost. (See generally Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.)"

The defendant in the present case was a defendant in the Handley case, and the pleadings, which were subject to a motion to dismiss in the two cases, are practically identical. We must determine then whether the issue presented to our court in Handley is the same issue that was presented to the trial court in the present case.

For the purposes of this appeal, we need only consider the cross-appeal portion of the Handley opinion, which states:

"In the cross-appeal we consider whether suits alleging intentional torts against employers, whose business involves the use of asbestos material, are barred by the exclusive remedy provisions of the Workers' Occupational Diseases Act." (Handley, 124 Ill. App. 3d at 58, 463 N.E.2d at 1013.)

The Handley court indicated that the plaintiffs did not file a brief addressing the issues raised in the cross-appeal. Regardless, the court discussed Owens-Corning's contention that the exclusive remedy provisions of the Workers' Occupational Diseases Act bars ...


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