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05/20/94 CECIL ALDRIDGE v. A.C. & S.

May 20, 1994

CECIL ALDRIDGE, JOSEPH E. BEALS, EDMOND E. BINGHAM, GLENDELL G. BUCKNER, MAURICE BUESKING, GARY M. BURNS, GERALD G. EVANS, DONALD GRIFFITHS, CARL R. HAMMER, JAMES A. HAWKINS, JOE L. ROUNDTREE, CLIFFORD SCOTT, FREDERICK SELLERS, HOWARD SHAKESPEAR, RONALD E. SLOAN, AND CECIL R. WEST, PLAINTIFFS,
v.
A.C. & S., INC., ET AL., DEFENDANTS. OWENS-CORNING FIBERGLAS CORPORATION, THIRD-PARTY PLAINTIFF-APPELLANT, V. R.T. VANDERBILT COMPANY, INC. AND SOUTHERN TALC COMPANY, THIRD-PARTY DEFENDANTS-APPELLEES, AND CYPRUS INDUSTRIAL MINERALS COMPANY, THIRD-PARTY DEFENDANT.



Appeal from Circuit Court of Macon County. Nos. 88L291, 89L322, 89L513, 89L526, 89L366, 89L425, 89L397, 89L432, 89L361, 89L162, 89L182, 89L461, 89L353, 89L521, 89L232. Honorable John K. Greanias, Judge Presiding.

Counsel Corrected May 26, 1994. As Corrected June 27, 1994. Petition for Rehearing Denied and Released for Publication July 27, 1994.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On December 31, 1986, plaintiffs, employees of the Firestone Tire & Rubber plant (Firestone) in Decatur, brought an action for personal injuries against defendant third-party plaintiff Owens-Corning Fiberglas, Inc. (OCF), and a number of other manufacturers. Plaintiffs alleged in their complaint that while working at Firestone they were injured by exposure to asbestos products manufactured by OCF and sold to Firestone. On January 19, 1993, OCF filed a third-party complaint for contribution against third-party defendants R.T. VanderbiltCompany (Vanderbilt), Cyprus Industrial Minerals Company (Cyprus), and Southern Talc Company (Southern Talc). Subsequently, all third-party defendants filed motions to dismiss. After a hearing, the circuit court entered an order on April 13, 1993, granting all third-party defendants' motions to dismiss.

On April 1, 1993, and April 19, 1993, Cyprus and Vanderbilt, respectively, filed motions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) seeking sanctions against OCF for filing allegedly frivolous third-party complaints against them. OCF also filed a timely motion for reconsideration of the April 13, 1993, order dismissing all third-party complaints. After a hearing, the court entered an order on May 11, 1993, denying OCF's motion for a rehearing and Cyprus' motion for sanctions but allowing Vanderbilt's motion for sanctions. After a further hearing, the court entered an order on July 23, 1993, awarding Vanderbilt $19,418.14 for attorney fees and expenses incurred in defending against OCF's third-party complaint.

The July 13, 1993, order contained a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) making the orders dismissing the third-party complaints and in regard to the sanctions appealable. OCF has appealed those orders. At the beginning of oral argument before this court, counsel for OCF announced that because of settlements it had made, it confessed that the dismissal of the third-party complaints might stand. Counsel stated that OCF was then only contesting the imposition of the sanctions and award of attorney fees and expenses in regard to Vanderbilt. Under the unusual circumstances of this case, we reverse the imposition of the sanctions and award of attorney fees and expenses. We affirm the balance of the judgment on appeal.

All third-party defendants maintained that the two-year limitation period for bringing actions for personal injuries set forth in section 13-202 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-202), beginning from the date of the filing of the underlying complaint, barred the third-party complaints which were filed some six years after the filing of the underlying complaint. This was the only basis for all of the motions to dismiss except for that of Vanderbilt. It set forth as its major reason the fact that it had earlier been a codefendant and had obtained a judgment in bar of action against all the plaintiffs.

Inherent in the confession of counsel for OCF is an agreement that the two-year statutory provision was applicable. We need not consider that aspect of the case further. As far as Vanderbilt was concerned, not only was its prior judgment against the plaintiffs the major thrust of its motion to dismiss, but the alleged unreasonablenessof OCF's position in that regard was the major thrust of Vanderbilt's motion for sanctions and the major reason that the court imposed the sanctions.

Plaintiffs made Vanderbilt an original codefendant but voluntarily dismissed Vanderbilt as a defendant on April 2, 1988. As no new action was filed by any plaintiff against Vanderbilt by April 2, 1989, which was one year from the date of the dismissal, that voluntary dismissal then became a judgment in bar of action. (Ill. Rev. Stat. 1987, ch. 110, par. 13-217.) Section 2a of the Joint Tortfeasor Contribution Act (Contribution Act) states:

"Right of Contribution. (a) Except as provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them." (Emphasis added.) 740 ILCS 100/2(a) (West 1992).

Vanderbilt maintains that the foregoing judgment prevented it from being "subject to liability in tort arising out of the injuries to plaintiff and thus not subject to pay contributions."

The record showed that prior to OCF's filing of a third-party complaint against Vanderbilt, that third-party defendant had sent a telephone message to OCF officials warning that OCF had no cause of action against Vanderbilt. The major thrust of this statement was that Vanderbilt judgment against plaintiffs was a bar to contribution claims but the statement also mentioned the statute of limitations defense and a contention that OCF had no reasonable basis to believe that Vanderbilt's products contained asbestos. Notably, as far as the third-party complaint against Cyprus was concerned, where the two-year statutory provision was the only grounds for dismissal, the circuit court refused to impose a sanction.

While OCF had not been warned by other third-party defendants and defied the warning, the circuit court's judgment order, when considered in the light of the emphasis that had otherwise been put on Vanderbilt's judgment on the complaint, makes clear that unjustified refusal by OCF to recognize the validity of Vanderbilt's theory was the ...


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