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09/28/89 Willard Tipsord, v. Unarco Industries

September 28, 1989

WILLARD TIPSORD, PLAINTIFF-APPELLANT

v.

UNARCO INDUSTRIES, INC., ET AL., DEFENDANTS (SPECIAL MATERIALS, INC.-WISCONSIN, ET AL., DEFENDANTS-APPELLEES).

-- OTTO KESSINGER, PLAINTIFF-APPELLANT

v.

UNARCO INDUSTRIES, INC., ET AL., DEFENDANTS (SPECIAL MATERIALS, INC.-WISCONSIN, ET AL., DEFENDANTS-APPELLEES). -- JAMES

DENHAM, PLAINTIFF-APPELLANT

v.

UNARCO INDUSTRIES, INC., ET AL., DEFENDANTS (SPECIAL MATERIALS, INC.-WISCONSIN, ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Nos. 4-89-0058, 4-89-0059, 4-89-0060 cons.

544 N.E.2d 1198, 188 Ill. App. 3d 895, 136 Ill. Dec. 423 1989.IL.1549

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

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On December 20, 1985, plaintiffs Willard Tipsord, Otto Kessinger, and James Denham filed separate suits in the circuit court of McLean County against the same defendants alleging the defendants sold or supplied asbestos or asbestos-containing products to plaintiffs' employer, Unarco Industries, at its Bloomington plant. Plaintiffs contended they were exposed to the products and injured thereby. On September 1, 1988, and December 19, 1988, respectively, the court granted motions of Special Materials, Inc.-Wisconsin (Special Materials), and Special Shipping, Inc. (Special Shipping), both of whom were defendants in all of the cases, for summary judgment in each of the cases. After the last of the summary judgments, the circuit court made findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) as to all summary judgments. Plaintiffs have appealed all summary judgments and all cases have been consolidated on appeal. We reverse the judgments as to Special Materials and affirm as to Special Shipping.

In response to a request by defendants for a bill of particulars, plaintiffs admitted their dates of employment at the Unarco plant were as follows: (1) Tipsord, during 1956 and 1957; (2) Kessinger, in 1955; and (3) Denham, for five or six months in 1967. Affidavits presented by defendants in support of their motions for summary judgment purported to show that Special Shipping was not incorporated until May 7, 1979, and Special Materials was not incorporated until February 26, 1969. If this were true, the incorporation of both defendants took place well after the last employment of any plaintiff at the Bloomington Unarco plant. The affidavits also purported to show that neither defendant ever supplied asbestos for the Bloomington plant and neither defendant had acquired the assets of or merged with any entity existing prior to the incorporation of the two defendants.

Plaintiffs maintain the showing made in support of the motions for summary judgment was insufficient to support the judgments, at least without plaintiffs having an opportunity for more discovery than they were permitted. We agree this was true in regard to the judgments in favor of Special Materials, but the judgments in favor of Special Shipping were properly supported.

Pursuant to section 2-1005(c) of the Code of Civil Procedure, summary judgments "shall be rendered" if the pleadings, depositions, affidavits, and other matters properly before the court show the movant to be entitled to judgment as a matter of law, because all factual matters are resolved in favor of the movant (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c)). Supreme Court Rule 191 states that affidavits in support of such a motion "shall be made on the personal knowledge of the affiants; . . . shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; [and] shall not consist of Conclusions but of facts admissible in evidence." 107 Ill. 2d R. 191.

By the time the circuit court ruled on Special Materials' motions for summary judgment, the motion was supported by the affidavits of Thomas C. Ewing, stated to be an attorney from Milwaukee, Wisconsin, and Suzanne Thomas, stated to be a paralegal working in the same firm with Ewing. Accompanying these affidavits was a document certified by the Secretary of State of Wisconsin to be a certificate of incorporation of an entity called Special Asbestos Company, Inc., on February 26, 1969. Ewing stated in his affidavit that Material Services was incorporated on February 26, 1969, as per that certificate. In a discovery deposition on file in the cases, Ewing had testified that that corporation had undergone several changes of name but was the defendant corporation now known as Special Materials, Inc. -- Wisconsin (Special Materials).

Ewing's affidavit stated: (1) he was "designated" and "authorized" to speak for Special Materials; (2) all corporate records of the corporation now called Special Materials, Inc.-Wisconsin (Special Materials), were in his possession in his law office; (3) that corporation had been incorporated on February 26, 1969, as per the certificate attached to the affidavit; (4) he had instructed Thomas to review all of those records; (5) Thomas had presented him with a summary of customers of the foregoing corporation; (6) Thomas was also instructed to identify any documents indicating whether that corporation had ever acquired the assets of or merged with an entity which did business prior to February 26, 1969; and (7) based on his review of the summary submitted by Thomas and her review of the records, he concluded Special Materials had never sold asbestos or products containing asbestos to the Bloomington Unarco plant or its present occupant, and Special Materials had never acquired assets of nor merged with an entity doing business prior to February 26, 1969.

The affidavit of Thomas set forth that she was a paralegal working under Ewing and confirmed the instructions his affidavit stated he gave her. She stated she had followed those instructions and presented to him the summary to which he referred. She then stated she had "reported" to Ewing "that based on her review," the defendant corporation now referred to as Special Materials had "never sold, shipped or supplied asbestos or asbestos-containing products" to the Bloomington plant in question. Notably, she spoke merely as to what she reported and not as to what she actually found. Thus, she made no statement under oath, even in Conclusionary terms, as to what the records of Material Services did or did not show.

In arguing that the factual basis for a summary judgment may be established by an affidavit as to matters appearing in corporate records, Special Materials relies on First Federal Savings & Loan Association v. Chicago Title & Trust Co. (1987), 155 Ill. App. 3d 664, 508 N.E.2d 287, and National Builders Bank v. Simons (1940), 307 Ill. App. 562, 31 N.E.2d 274. We deem the affidavits there to ...


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