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INDECK POWER EQUIP. CO. v. JEFFERSON SMURFIT CORP.

March 22, 1995

INDECK POWER EQUIPMENT COMPANY, an Illinois Corporation, Plaintiff,
v.
JEFFERSON SMURFIT CORPORATION, a Delaware Corporation, Defendant



The opinion of the court was delivered by: RUBEN CASTILLO

 This case is before the Court on plaintiff Indeck's motion to dismiss Count I of Defendant Smurfit's counterclaim for strict product liability. For the reasons cited below, the motion is DENIED.

 Plaintiff Indeck Power Equipment Company (Indeck) owns and leases various types of power generating equipment, including large, trailer mounted boilers designed to generate processed steam. Defendant Jefferson Smurfit Corporation (Smurfit) leased one of plaintiff's trailer-mounted boilers to provide a temporary source of steam while the boiler installed at Smurfit's Lafayette, Indiana plant underwent repairs. The leased boiler was delivered to the Lafayette plant on December 22, 1993, and operated until the morning of January 15, 1994, when a fire of unknown origin damaged both the trailer-mounted boiler and portions of Smurfit's plant.

 Smurfit's answer to Indeck's Second Amended Complaint includes a counterclaim for strict products liability. Count I of the counterclaim alleges that the leased boiler was unreasonably dangerous and defective because it contained a malfunctioning Maxon valve, that this malfunctioning valve vented natural gas into the heated enclosure around the boiler controls, and ultimately caused the fire that damaged both the boiler and the plant. Smurfit seeks damages in excess of $ 50,000.

 Plaintiff has moved to dismiss this Strict Products Liability count on the basis of 735 ILCS 5/2-621, which reads, in pertinent part:

 
(a) In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage . . .
 
(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded , the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants, providing the certifying defendant or defendants are not within the categories set forth in subsection (c) of this Section.

 Indeck has certified in an affidavit attached to its motion that the manufacturer of the allegedly defective Maxon valve is none other than the Maxon Corporation, of Muncie, Indiana, and now seeks dismissal of Count I under the cited Illinois statute, known as the "seller's exception." Defendant opposes the motion on two grounds, i.e. that this Illinois law does not apply to the fire that occurred in Indiana, or alternatively, that plaintiff does not merit dismissal of the Count because he is "within the categories set forth in subsection (c) . . ."

 Subsection (c) provides that a court shall not order the dismissal of any certifying [cross-] defendant where the [cross-] plaintiff can show one or more of the following :

 (1) [omitted]

 (2) That the [cross-] defendant had actual knowledge of the defect in the product which caused the injury, death, or damage; or

 (3) [omitted]

 In opposing Indeck's motion, Smurfit argues that Indeck was aware that the Maxon valve was defective as early as December 27th, 1993, because of the following facts: (1) Indeck's employee Mr. Burton, who was in Lafayette to oversee the installation and startup of the boiler, found a discrepancy on that date between the physical location of the Maxon valve (closed) and the position reflected by the position indicator light (open); (2) Smurfit's plant manager called Mr. Smith, Indeck's service manager, on that date to report that the valve was not functioning properly; (3) Mr. Smith wrote to Smurfit on December 28th to acknowledge that "the gas safety shut-off valve would not close properly." (4) Indeck ordered and shipped a replacement valve to the Lafayette ...


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