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RUIZ v. WEILER & CO.

August 15, 1994

FELIPE RUIZ, Plaintiff,
v.
WEILER & COMPANY, INC., a corporation, DAN SCHWERDTFEGER, WEILER EAST, INC., a corporation, CUSTOM STAINLESS EQUIPMENT COMPANY, INC., a corporation, and BLENTECH CORPORATION, a corporation, Defendants. ZURICH AMERICA INSURANCE COMPANY, Intervening-Petitioner. WEILER EAST, INC. Defendant/Cross-Plaintiff, v. CUSTOM STAINLESS EQUIPMENT COMPANY INC., and BLENTECH CORPORATION, Cross-Defendants. WEILER EAST, INC., Defendant/Cross-Plaintiff/Third-Party Plaintiff, v. J&S PROVISION, INC. and OMICRON FROZEN FOODS, INC., CUSTOM STAINLESS EQUIPMENT COMPANY, INC. and BLENTECH CORPORATION, Third-Party Defendants. WEILER & COMPANY, INC. v. CUSTOM STAINLESS EQUIPMENT COMPANY, INC., BLENTECH CORPORATION and WEILER EAST, INC., Cross-Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Felipe Ruiz brings this five-count complaint sounding in strict products liability, negligence, breach of warranty, and professional negligence. Presently before the court is defendant Blentech Corporation's motion for summary judgment against plaintiff Ruiz and cross-claimant Weiler East, Inc. *fn1" For the reasons set forth below, Blentech's motion is granted.

 I. Background

 Plaintiff Felipe Ruiz alleges that he was injured while working with or near a "screw conveyer" machine at his place of employment, Omicron Foods, Inc, in Illinois. The screw conveyer had been designed and manufactured by defendant Custom Stainless Equipment Company *fn2" sometime in 1983, and was sold to Laredo Packing Company in Texas. When Laredo went out of business, the screw conveyor was purchased by defendant Weiler East, Inc. ("Weiler East"), in conjunction with defendants Daniel Schwerdtfeger and Weiler & Co. ("Weiler"), for resale to Omicron Foods, Inc. *fn3" The accident involving Ruiz occurred on June 1 6, 1992, approximately two and one half years after the used screw conveyor was sold to Omicron Foods. Ruiz then brought this suit, naming Weiler, Schwerdtfeger, Weiler East, Custom, and Blentech as defendants. Weiler East subsequently filed a cross-claim against Custom and Blentech.

 II. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 III. Discussion

 In a diversity case where the law of two or more jurisdictions arguably applies, the federal court looks to the choice of law rules of the forum state to determine which jurisdiction's law should be used. Goldberg v. Medtronic, Inc., 686 F.2d 1219, 1225 (7th Cir. 1982). In tort actions, Illinois applies the "most significant contacts" test outlined in the Restatement (Second) of Conflict of Laws (1971). Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593, 595 (Ill. 1970). The factors to be considered in determining which state has the most significant contacts include:

 
(a) The place where the injury occurred. (b) The place where the conduct occurred. (c) The domicile, nationality, place of incorporation and place of business of the parties. (d) The place where the relationship of the parties is centered.

 Id. at 596 (quoting Tentative Draft No. 9 of section 379, Restatement (Second) of Conflict of Laws). In the present case, the injury occurred in Illinois, while the "conduct," i.e. the allegedly defective design or manufacture of the screw conveyer, occurred in California. The plaintiff is domiciled in Illinois, while Blentech is incorporated in California and Weiler East is incorporated in New Jersey. Finally, although neither Ruiz, his employer, nor Weiler East have had any direct dealings with Blentech, this action at core relates to the sale of an allegedly defective machine to Ruiz' employer in Illinois. In sum, the two obvious possibilities for the state with the "most significant contacts" are Illinois and California. Given the above factors, we conclude that Illinois has contacts to this action at least equal to those of California; where two locales are equally appealing with respect to choice of law, there is a presumption in favor of using the laws of the state in which the injury occurred. Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir. 1981); Firkin v. United States Polychemical Corp., 835 F. Supp. 1048, 1993 WL 398811, at *1 (N.D. Ill. 1993). As a result, we will apply Illinois law in our consideration of Blentech's motion. Cf. Kramer v. Weedhopper of Utah, Inc., 204 Ill. App. 3d 469, 562 N.E.2d 271, 276, 149 Ill. Dec. 807 (Ill. App. Ct. 1990) ("In applying the test to the case at bar, Illinois has the most significant relationship in that the possible tort liability derives from applications of Illinois products liability law; the injury occurred in Illinois; and the relationship of all the parties is centered in Illinois."). *fn4"

 Having decided that Illinois law applies to this action, we now turn to the merits of Blentech's summary judgment motion. Blentech asserts that, as a mere purchaser of Custom's assets, it can not be held liable under Illinois law for Custom's debts and liabilities. Green v. Firestone Tire & Rubber Co., 122 Ill. App. 3d 204, 460 N.E.2d 895, 898, 77 Ill. Dec. 591 (Ill. App. Ct. 1984) (citation omitted). Weiler East does not contest Blentech's assertion that Blentech is entitled to summary judgment under Illinois law, and we therefore grant Blentech's motion with respect to Weiler East. Ruiz, on the other hand, maintains that, even applying Illinois law, Blentech is liable under one of the exceptions to the general rule stated above. In Green, the court recognized four exceptions to the nonliability rule:

 
(1) where there is an express or implied agreement of assumption; (2) where the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (3) where the purchaser is merely a continuation of the seller; or (4) where the transaction is for the ...

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