Appeal from Circuit Court of Macon County No. 96L137 Honorable James A. Hendrian, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
In September 1996, plaintiffs filed a six-count complaint against several companies, including Sprinkmann Sons Corporation of Illinois (Sprinkmann), for injuries resulting from Samuel Boldini's exposure to asbestos-containing materials at his place of employment, Archer Daniels Midland Company (ADM) in Decatur, Illinois. In February 1999, Sprinkmann filed a motion for summary judgment based solely on the Illinois construction statute of repose, section 13-214(b) of the Code of Civil Procedure (Code) (735 ILCS 5/13-214(b) (West 1996)). After a hearing on the motion in October 1999, the trial court issued a written memorandum opinion and order finding plaintiffs' cause of action was time-barred by section 13-214(b) and granting Sprinkmann's motion for summary judgment. In December 1999, plaintiffs filed a motion to reconsider, which the trial court denied. Plaintiffs appeal, arguing the trial court erred in granting summary judgment because evidence of sales by Sprinkmann to ADM does exist. We reverse and remand.
In September 1996, Samuel Boldini and Ann Boldini, his wife, filed a six-count complaint against several companies, including Sprinkmann, for injuries allegedly caused by Samuel's exposure to asbestos-containing materials. Plaintiffs' claims were based upon Sprinkmann's sale and distribution of asbestos-containing materials to Samuel's place of employment, the Decatur ADM plant. Samuel worked in the Extraction B Building during his 39 years at the Decatur ADM plant. Samuel died in October 1996 of mesothelioma, and Ann Boldini was appointed special administratrix of his estate.
During the period of decedent's employment with ADM, Sprinkmann was an authorized distributor of Owens-Corning products. According to Susan Stockman, the secretary-treasurer of Sprinkmann, Sprinkmann has been in the business of installing insulation on a labor-material basis since 1945, has never been a manufacturer of asbestos-containing products, and ceased installing insulation containing asbestos between 1971 and 1975.
In their complaint, plaintiffs alleged product liability, willful and wanton conduct, and negligence. Plaintiffs claim decedent was exposed to asbestos-containing products distributed or sold by Sprinkmann while he was employed by ADM. Plaintiffs did not make any claims based on Sprinkmann's installation of asbestos-containing products at ADM. In response to plaintiffs' allegations, Sprinkmann argued it installed asbestos-containing products at ADM on a labor-material basis and no evidence showed Sprinkmann ever acted as a supplier of asbestos-containing materials for the Decatur ADM plant.
In February 1999, Sprinkmann filed a motion for summary judgment arguing plaintiffs' cause of action was barred by section 13-214(b) of the Code. In July 1999, plaintiffs filed a response to Sprinkmann's motion for summary judgment, attaching testimony and deposition transcripts as well as Owens-Corning invoices. In their response, plaintiffs argued (1) they were seeking redress for Sprinkmann's role as a seller and distributor and (2) evidence existed of sales and distribution to ADM.
In September 1999, the trial court held a hearing on the motion for summary judgment. In October 1999, the trial court issued a written memorandum opinion and order finding plaintiffs' cause of action time-barred and granting Sprinkmann's motion for summary judgment.
In December 1999, plaintiffs filed a motion to reconsider, attaching several exhibits, including the evidence deposition of Ellis Carlton and the affidavit of Russell Wolstenholme. The trial court held a hearing on plaintiffs' motion the same month and denied it. The trial court found no just reason for delaying enforcement or appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). This appeal followed.
Summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 413, 681 N.E.2d 156, 158 (1997). In ruling on a motion for summary judgment, the trial court must view all evidence in the light most favorable to the non-movant. Malone v. American Cyanamid Co., 271 Ill. App. 3d 843, 845, 649 N.E.2d 493, 495 (1995). We review grants of summary judgment de novo. Malone, 271 Ill. App. 3d at 845, 649 N.E.2d at 495.
A. Illinois Construction Statute of Repose
Sprinkmann's motion for summary judgment was based solely on the contention plaintiffs' action is time-barred under section 13-214(b), which provides, in relevant part:
"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 10 years have elapsed ...