United States District Court, Central District of Illinois, Springfield Division
February 18, 1997
WILLIAM HENDRICKSON AND RITA HENDRICKSON, PLAINTIFFS,
GUNTHER-NASH MINING CONSTRUCTION COMPANY, INC., EXXON COAL USA, INC., D/B/A MONTEREY COAL COMPANY, A CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
The Illinois Structural Work Act.
The Illinois General Assembly giveth.
The Illinois General Assembly taketh away.
As alleged in the Amended Complaint, Gunther-Nash Mining
Construction Company and Exxon Coal USA, Inc. hired Timmons
Electric Company to perform some electrical work on a new
structure at the Monterey Coal Company's plant in Carlinville,
Illinois. William H. Hendrickson worked for Timmons Electric
Company. On January 23, 1993, Hendrickson, while working for
Timmons Electric Company on the new structure at Monterey Coal's
plant, was injured when he tried to climb out of the "elevator."*fn1
Hendrickson claims that his injuries were directly and
proximately caused by Gunther-Nash's and Exxon Coal's failure to
comply with the Illinois Structural Work Act ("Act").
Furthermore, the wife, Rita Hendrickson, claims a loss of
services and a loss of consortium as a result of the injuries
sustained by her husband due to Gunther-Nash's and Exxon Coal's
failure to comply with the Act.
II. LEGAL STANDARD FOR MOTIONS TO DISMISS
In ruling on a motion to dismiss, the Court "must accept well
pleaded allegations of the complaint as true. In addition, the
Court must view these allegations in the light most favorable to
the plaintiff." Gomez v. Illinois State Bd. of Educ.,
811 F.2d 1030, 1039 (7th Cir. 1987). Although a complaint is not required
to contain a detailed outline of the claim's basis, it
nevertheless "must contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory." Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984). Mere
conclusions, without supporting factual allegations, are
insufficient to support a claim for relief. Cohen v. Illinois
Inst. of Tech., 581 F.2d 658, 663 (7th Cir. 1978). Dismissal
should not be granted "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45,
78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
In Counts I, III, VII, and IX of their Amended Complaint,
Plaintiffs allege that Defendants violated the Illinois
Structural Work Act. Repealed, formerly 740 ILCS 150/.01 et seq.
The Illinois General Assembly, however, repealed the Act
effective February 14, 1995. See Illinois P.A. 89-2 § 5.
Defendants, therefore, argue that because the Act has been
repealed, Plaintiffs no longer have a cause of action pursuant to
the Act. On the other hand, Plaintiffs argue that the repeal only
bars actions which accrued on or subsequent to February 14, 1995.
Because Plaintiffs' cause of action accrued prior to February 14,
1995, Plaintiffs assert that the repeal of the Act is
inapplicable to the case at bar.
For the reasons set forth below and for those contained
within Scott v. Midwest, Ltd., 933 F. Supp. 735 (C.D.Ill. 1996),
the Court finds that the repeal of the Illinois Structural Work
Act is applicable to both prospective and pending causes of
action. Accordingly, Counts I, III, VII, and IX of Plaintiffs'
Amended Complaint are dismissed.
All of the parties agree that the Illinois General Assembly
repealed the Act without including an express savings clause in
the statutory language. The amendment merely states that "The
Structural Work Act is repealed." P.A. 89-2 § 5. In Illinois,
The unconditional repeal of a special remedial
statute without a saving clause stops all pending
actions where the repeal finds them. If final
relief has not been granted before the repeal goes
into effect it cannot be granted afterwards, even
if a judgment has been entered and the cause is
pending on appeal. The reviewing court must dispose
of the case under the law in force when its
decision is rendered.
People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 373,
21 N.E.2d 318, 321 (Ill. 1939); see also Isenstein v. Rosewell,
106 Ill.2d 301, 310-11, 478 N.E.2d 330, 335,
88 Ill.Dec. 15, 20 (Ill. 1985).
When the Illinois General Assembly repeals a statute, the
presumption is that the repeal is "to be applied retroactively,
unless there is an expression of legislative intent to the
contrary." Randall v. Wal-Mart Stores, Inc., 284 Ill.App.3d 970,
673 N.E.2d 452, 455, 220 Ill.Dec. 540, 543 (Ill.App.Ct. 1996).
"When a repealing act is passed and nothing is substituted for
the former act, the former act will be construed as having no
more force or effect." Id., citing City of Chicago v. Degitis,
383 Ill. 171, 175, 48 N.E.2d 930, 932 (Ill. 1943).
In the instant case, there is no expression of legislative
intent contained within the enacting language itself which
indicates that the General Assembly intended the repeal to be
applied to prospective causes of action only. Furthermore, no
other act has been substituted for the Illinois Structural Work
Act. Thus, the repeal of the Illinois Structural Work Act stops
Plaintiffs' pending cause of action just as if the Act had never
been enacted and just as if the cause of action had never
existed. Holcomb v. Boynton, 151 Ill. 294, 297, 37 N.E. 1031,
1032 (Ill. 1894).
Yet, Plaintiffs argue that the Illinois General Assembly has
indicated its intent that the repeal of the Act should be applied
only to causes of action accruing on or after February 14, 1995.
Plaintiffs point to the preamble of Public Act 89-2 which states:
WHEREAS, It is the intent of the General Assembly
that the repeal of the Structural Work Act shall
operate as a bar to any action accruing on or after
the effective date of this Public Act; and WHEREAS,
It is the intent of the General Assembly that any
action accruing under the Structural Work Act
before the effective date of this Public Act may be
maintained in accordance with the provisions of
that Act as it existed before its repeal by this
Accordingly, Plaintiffs argue that they have not lost their claim
pursuant to the Act because their cause of action accrued two
years before the effective date of the repeal.
However, a preamble is not part of an act itself and should
be consulted only to clarify ambiguous provisions of a statute.
See Triple A Serv., Inc. v. Rice, 131 Ill.2d 217, 226-27,
545 N.E.2d 706, 709, 137 Ill.Dec. 53, 56 (Ill. 1989); see also Brown
v. Kirk, 64 Ill.2d 144, 152, 355 N.E.2d 12, 16-17 (Ill. 1976). In
the case at bar, the Court finds that the repeal of the Illinois
Structural Work Act is unambiguous, and therefore, the Court need
not refer to Public Act 89-2's preamble. Public Act 89-2 § 5
simply states that the Act is repealed. The General Assembly did
not indicate any intention within the enacting language itself to
rebut the presumption that repeals are to be applied
retroactively, and the Court declines to depart from the plain
language of the statute as it has been enacted.
Finally, Plaintiffs argue that if the repeal of the Illinois
Structural Work Act is given retroactive effect, then, the repeal
is unconstitutional because the repeal would deprive them of the
equal protection of the law without due process. However, the
Illinois Supreme Court has opted for a "vested rights approach"
when determining whether to apply an amended or a pre-amended
law. First of Am. Trust Co. v. Armstead, 171 Ill.2d 282, 289-90,
664 N.E.2d 36, 39, 215 Ill.Dec. 639, 642 (Ill. 1996). The vested
rights approach means that a court should apply the law as it
exists at the time that a motion or an appeal is being
considered, unless doing so would interfere with a vested right.
Id. A vested right is a "complete and unconditional demand or
exemption that may be equated with a property interest." Id.
In the case sub judice, the Court cannot say that Plaintiffs
have a vested right in the continuation of the Illinois
Structural Work Act. Id.; Envirite Corp. v. Illinois Envtl.
Protection Agency, 158 Ill.2d 210, 215, 632 N.E.2d 1035, 1037,
198 Ill.Dec. 424, 426 (Ill. 1994). A cause of action under the
Illinois Structural Work Act cannot be equated with a property
interest. Moreover, the legislature has an ongoing right to amend
and/or repeal a statute. Id. "The legislature has the power to
withdraw the jurisdiction of the court over statutory causes of
action by repealing the act, and the result of a repeal given
retroactive application is to leave all such causes of action and
pending suits where they are at the time of the repeal." Randall,
284 Ill.App.3d at 972, 673 N.E.2d at 455, 220 Ill.Dec. at 543. In
effect, the General Assembly has deprived the Court of subject
matter jurisdiction by repealing an act which has no counterpart
in common law or in equity. Id. Accordingly, Counts I, III, VII,
and IX of Plaintiffs' Amended Complaint are dismissed.
Ergo, Defendant Exxon Coal USA, Inc.'s Motion to Dismiss
Counts III and IX of Plaintiffs' Amended Complaint and Defendant
Gunther-Nash Mining Construction Company's Motion to Dismiss
Counts I and VII of Plaintiffs' Amended Complaint are ALLOWED.
Accordingly, Counts I, III, VII, and IX of Plaintiffs' Amended
Complaint are DISMISSED WITH PREJUDICE. Defendant Exxon Coal USA,
Inc.'s Motion for Summary Judgment as to Counts III and IX of
Plaintiffs' Amended Complaint and Defendant Gunther-Nash Mining
Construction Company's Motion for Summary Judgment as to Counts
I and VII of Plaintiffs'
Amended Complaint are DENIED as moot.