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In Re: the Estate of John Hoogerwerf v. (No. 4-11-0329) Honeywell International

February 2, 2012

IN RE: THE ESTATE OF JOHN HOOGERWERF,
DECEASED, VICKIE HOOGERWERF, INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE JOHN HOOGERWERF, PLAINTIFF-APPELLEE,
v.
(NO. 4-11-0329) HONEYWELL INTERNATIONAL, INC.,
DEFENDANT-APPELLANT.
IN RE: THE ESTATE OF GUY LEGATE, DECEASED, ANTOINETTE LEGATE, INDIVIDUALLY; AND MICHAEL LEGATE, SPECIAL ADMINISTRATOR OF THE ESTATE OF GUY LEGATE, PLAINTIFFS-APPELLEES,
v.
(NO. 4-11-0505) HONEYWELL INTERNATIONAL, INC.,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County of No. 04L92 Honorable Paul G. Lawrence, Judge Presiding. No. 07L146 Honorable Scott Drazewski, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion. Justices Appleton and McCullough concurred in the judgment and opinion.

OPINION

¶ 1 These consolidated appeals were brought from final judgments in a pair of asbestos-related civil conspiracy actions. In each of these cases, the trial court entered default judgment against defendant Honeywell International, Inc. (Honeywell), on the issues of liability and causation when it found Honeywell failed to comply with an order to produce Joel Charm as a witness at trial pursuant to Illinois Supreme Court Rule 237(b) (eff. July 1, 2005). Honeywell appeals in each case, arguing the court erred by finding Charm was subject to Rule 237(b) and for entering default judgment against Honeywell. Because the parties and the court unsatisfactorily addressed the central issue--namely, whether Charm was at the time of trial an officer, director, or employee of Honeywell--we vacate the judgment in each case and remand for new hearings on the applicability of Rule 237(b) to Charm and Honeywell.

¶ 2 I. BACKGROUND

¶ 3 In case No. 4-11-0329, in June 2004, plaintiff Vickie Hoogerwerf sued Honeywell and other corporate defendants on behalf of herself and her children for the alleged wrongful death of her husband, John Hoogerwerf. By May 2006, when the case was originally set for trial, all defendants had settled except Honeywell. A trial in May 2006 ended in a mistrial; a verdict for Hoogerwerf following an October 2006 retrial was later vacated. Charm testified at both of these trials. Retrial was eventually set to begin on April 4, 2011.

¶ 4 In case No. 4-11-0505, in September 2007, plaintiff Antoinette Legate and her husband Guy Legate sued Honeywell and other corporate defendants for damages allegedly resulting from Guy's asbestos exposure. When Guy passed away, plaintiff Michael Legate was substituted as a plaintiff as special administrator of Guy's estate. All defendants except Honeywell have settled. The trial in this case was eventually set to begin on June 6, 2011.

¶ 5 In advance of trial in each case, Honeywell was served with a Rule 237(b) notice requesting that Honeywell produce Charm and others to testify at trial. Plaintiffs and Honeywell had disclosed Charm as a potential witness due to his knowledge of Honeywell's corporate history and his frequent and continuing involvement in Honeywell's asbestos litigation as a witness and as an advisor to Honeywell. For some time until he resigned in 1997, according to Honeywell, Charm was an industrial hygienist and corporate head of product safety for AlliedSignal, Inc., and its predecessors before that company merged with Honeywell. Since 1997, Charm has been the owner and sole employee of Charm HS&E International, Inc. (Charm HS&E), a consulting firm. The parties agree that the bulk of Charm HS&E's consulting work has been for Honeywell. In his current capacity, Charm has assisted Honeywell in asbestos litigation by reviewing and verifying written discovery responses and testifying at depositions and trials, sometimes at Honeywell's behest pursuant to orders under Rule 237(b).

¶ 6 In March 2011, with proceedings pending in the instant cases, Honeywell renegotiated its consulting contract with Charm. Specifically, a clause in the amended contract allowed Charm to negate the contract if Honeywell attempted to require him to travel more than 100 miles from his residence in upstate New Jersey. Charm indicated he was no longer willing to travel to Illinois to testify in asbestos trials but would remain available to testify in depositions so long as they required travel only within this 100-mile radius.

¶ 7 Later that month, in case No. 4-11-0329, Honeywell moved to quash Hoogerwerf's Rule 237(b) notice with respect to Charm. Honeywell asserted he was outside the scope of Rule 237(b) pursuant to White v. Garlock Sealing Technologies, LLC, 398 Ill. App. 3d 610, 924 N.E.2d 53 (2010), as he was not Honeywell's officer, director, or employee. On March 30, 2011, the trial court, Judge Paul G. Lawrence, held a hearing on Honeywell's motion to quash in addition to other matters. The court denied the motion, finding that Rule 237(b) applied to Charm by virtue of his ongoing relationship with Honeywell. The court stated Charm would fall within the scope of Rule 237(b) so long as he continued providing services to Honeywell.

¶ 8 On April 4, 2011, when trial was set to begin in that case, Honeywell notified the trial court that Charm refused to appear although asked to do so. The court entered default judgment against Honeywell and for Hoogerwerf on the issues of liability and causation. Following a trial on damages only, the jury returned a verdict in the amount of $4,320,000. After adjusting for setoffs, the court entered judgment for $2,950,000 against Honeywell and for Hoogerwerf. On April 15, 2011, Honeywell filed its timely notice of appeal, effecting its appeal in case No. 4-11-0329.

¶ 9 On May 23, 2011, in case No. 4-11-0505, Honeywell moved to quash Antoinette and Michael's Rule 237(b) notice with respect to Charm. On May 25, 2011, the trial court, Judge Scott Drazewski, held a hearing on Honeywell's motion to quash in addition to other matters. In their argument, plaintiffs cited the ruling in Hoogerwerf's trial (entered by a different trial judge) as persuasive authority that Charm remained subject to the rule. The court denied Honeywell's motion, distinguishing this case from White and noting that Honeywell would, if its renegotiated contract with Charm controlled the court's Rule 237(b) determination, thereby be empowered to circumvent the rule altogether. The court found that Charm was subject to Rule 237(b) and Honeywell could be compelled to produce him pursuant to that rule.

¶ 10 On June 6, 2011, when Honeywell disclosed that Charm would not appear at trial in that case, the trial court entered default judgment against Honeywell and for Anoinette and Michael on the issues of liability and causation. These parties later stipulated that plaintiffs would have proved damages against Honeywell in the amount of $250,000 for Antoinette and $500,000 for Michael. Honeywell subsequently filed its timely notice of appeal, effecting its appeal in case No. 4-11-0505.

ΒΆ 11 On December 29, 2011, this court consolidated these appeals on its own motion. The parties were given until January 4, 2012, to object to ...


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