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08/27/96 KATHERINE KRUEGER v. A.P. GREEN

August 27, 1996

KATHERINE KRUEGER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROBERT KRUEGER, DECEASED, PLAINTIFF-APPELLANT
v.
A.P. GREEN REFRACTORIES CO., ET AL., DEFENDANTS, AND SPRINKMANN SONS CORPORATION OF ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 10th Judicial Circuit, Peoria County, Illinois. No. 92 L 76. Honorable Richard E. Grawey, Judge, Presiding.

Released for Publication September 27, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice. Presiding Justice Breslin delivered the opinion of the court. Breslin, P.j., with Lytton, J., concurring. Slater, J., specially concurring.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

The plaintiff, Katherine Krueger, commenced the instant product liability suit against the defendant, Sprinkmann Sons Corporation of Illinois (Sprinkmann), alleging that Sprinkmann was liable for injuries sustained by her deceased husband due to his exposure to asbestos containing products that were sold, distributed and installed by Sprinkmann. The trial court found that Sprinkmann qualified for protection under the construction statute of repose (735 ILCS 5/13-214 (West 1994)), and granted summary judgment in favor of Sprinkmann because Katherine had not commenced the suit within the ten year period required by the statute. On appeal, Katherine claims that the trial court erred by finding that the statute of repose applied and by failing to strike the affidavit of one of Sprinkmann's former employees. We hold that section 13-214(b) does not apply to those claims that arise out of the sale of the asbestos products. Accordingly, we reverse and remand.

In her complaint, Katherine alleged that Sprinkmann was engaged in the business of selling, distributing and installing asbestos insulation. Her deceased husband, Robert Krueger, was exposed to asbestos emanating from Sprinkmann's products while he worked at five construction sites between 1958 and 1971. Katherine alleged that Sprinkmann committed several negligent acts or omissions, including incorporating asbestos into its products, failing to warn that its products were dangerous and failing to provide proper instructions for the installation of its products.

Sprinkmann filed a motion for summary judgment, arguing that Katherine's claim was barred by the construction statute of repose. In her response to this motion, Katherine included an engineering requisition form of Commonwealth Associates, Inc., which requests that the Central Illinois Light Company (CILCO) purchase asbestos rope from Sprinkmann.

In its reply to Katherine's response to the motion for summary judgment, Sprinkmann conceded that it had supplied and installed the insulation at the five job sites. Attached to Sprinkmann's response was the affidavit of Ellis Carlton, who was employed by Sprinkmann during the years Robert was allegedly exposed to asbestos. According to the affidavit, Sprinkmann installed insulation at the job sites in question but did not sell insulation to any other contractors who did work at the sites. Carlton also stated by affidavit that he had reviewed an invoice regarding Sprinkmann's sale of asbestos rope to Commonwealth Associates, Inc. (Commonwealth) at the CILCO job site, and found nothing which indicated where the product was used, or if it was even used at the job site.

The trial court found that Sprinkmann installed asbestos containing products at the job sites in question. However, relying on Ellis Carlton's affidavit, the court found that Sprinkmann did not supply any asbestos containing products to other contractors at the job sites. The court further found that the products installed by Sprinkmann constituted improvements to real property. Based on these findings, the court concluded that Sprinkmann qualified for the protection of the construction statute of repose, 735 ILCS 5/13-214 (West 1994). The court denied Katherine's motion to reconsider and found that the summary judgment order was final and appealable.

The first issue is whether the trial court erred by finding that Sprinkmann qualified for protection under the construction statute of repose.

Section 13-214(b) of the Code of Civil Procedure (construction statute of repose) provides that:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after ten years have elapsed from the time of such act or omission. 735 ILCS 5/13-214(b) (West 1994).

Whether a party is afforded protection under section 13-214(b) is determined by inquiring whether the product at issue constitutes an improvement to real property, and if so, whether the party falls within the activities enumerated in the statute. Adcock v. Montgomery Elevator Co., 274 Ill. App. 3d 519, 654 N.E.2d 631, 211 Ill. Dec. 169 (1995). To be included within the statute, a manufacturer must perform some role related to the construction site beyond provision of standard products generally available to the public and not custom designed for the project. People v. Asbestospray Corp., 247 Ill. App. 3d 258, 266, 616 N.E.2d 652, 657-58, 186 Ill. Dec. 462 (1993). Relevant criteria for determining what constitutes an improvement to real property include: whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced. St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d 1, 4-5, 605 N.E.2d 555, 556-57, 178 Ill. Dec. 761 (1992). On appeal from the entry of summary judgment, the standard of review is de novo. Andrews v. Cramer, 256 Ill. App. 3d 766, 769, 629 N.E.2d 133, 135, 195 Ill. Dec. 825 (1993).

Katherine first argues that her claims against Sprinkmann arise out of Sprinkmann's sales and distribution activities in addition to its installation of the asbestos containing products at the various worksites. She claims that since section 13-214(b) does not protect sellers and distributors of ...


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