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04/03/96 W. R. GRACE & CO. v. HELEN ENSEY

April 3, 1996


Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 92-L-39. Honorable Martin E. Conway, Jr., Judge Presiding.

Released for Publication June 24, 1996.

Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. McCUSKEY, Justice. Justice McCUSKEY delivered the opinion of the court: Breslin, P. J., and Lytton, J., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

John Ensey, Jr. died of mesothelioma on November 26, 1992. John's wife, Helen Ensey (Ensey), as administrator of his estate, filed her fifth amended complaint on October 15, 1993. Ensey alleges that the defendant, CSR Limited (CSR), a corporation headquartered in Australia and organized under the laws of Australia, sold asbestos to Johns-Manville Corporation (Manville) which incorporated it into transite pipe and transite sheets at its plants throughout the United States, including a plant in Waukegan, Illinois.

John was employed on several job sites in central Illinois where he worked with the asbestos products allegedly manufactured by Manville. Ensey alleges that CSR's negligent acts proximately caused the death of her husband.

Ensey's suit against CSR, and seven other defendants, was filed in the circuit court of Rock Island County. CSR made a special and limited appearance to file a motion to dismiss the suit based on lack of personal jurisdiction.

On February 9, 1995, the trial court entered an order denying CSR's motion to dismiss. The trial court found that personal jurisdiction was proper because of two factors: (1) CSR waived its right to challenge personal jurisdiction in Illinois based on a judicial admission it made before the highest court of West Virginia; and (2) personal jurisdiction was proper under the Illinois and United States Constitutions. On March 1, 1995, the trial court denied CSR's motion to reconsider.

On March 10, 1995, CSR sought leave to file an interlocutory appeal with this court. On April 18, 1995, we denied CSR's motion for leave to appeal. On May 22, 1995, CSR filed a petition for leave to appeal with the supreme court, which was denied on October 4, 1995. On that same date, the supreme court issued a supervisory order vacating our April 18, 1995, order and remanding the case to this court for a determination on the merits.

For the reasons which follow, we affirm the trial court's determination that minimum contacts have been established requiring CSR to defend Ensey's lawsuit in this state. Also, we find that it is reasonable and fair for the courts of this state to exercise personal jurisdiction over CSR.

I. Background

Between 1948 and 1966, CSR acted as the sales agent for its partially-owned subsidiary which mined raw asbestos fibers. CSR sold the asbestos to Manville, F.O.B. various ports in Australia. Manville then used the asbestos, along with asbestos from various other suppliers from around the world, to manufacture asbestos-containing products at its plants throughout the United States. Manville was one of the world's largest manufacturers of asbestos products. The record before us establishes that CSR sold Manville 37,000 tons of crocidolite asbestos (blue fiber) from 1948 until 1966.

CSR maintains there is no evidence to support Ensey's claim that CSR was aware that its blue fiber was coming to Illinois. In oral argument before this court, CSR claimed that if its asbestos made its way to Illinois, Manville is to blame, not CSR. CSR also argues that because there is nothing in the record to show that its blue fiber, and not that of another corporation, is responsible for John's injuries and death, there is no basis for jurisdiction. We note initially that CSR has confused jurisdictional issues with causation and proof issues. The jurisdictional issue before us is preliminary to, and independent of, any determination of the merits of Ensey's claims. Heller Financial, Inc. v. Conagra, Inc., 166 Ill. App. 3d 1, 4-5, 520 N.E.2d 922, 924, 117 Ill. Dec. 571 (1988).

Ensey claims that CSR did more than just sell asbestos to Manville, without any knowledge of how, where, when and why Manville was using it. Ensey claims that CSR officials met with Manville officials in the United States, promoted expanded use of its blue fiber in various products, advertized its asbestos in a nationally circulated trade publication, and knew of ...

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