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Perezz v. Air and Liquid System Corp.

United States District Court, S.D. Illinois

December 2, 2016

SYLVIA PEREZ, Individually and as Special Administrator of the Estate of Armando Perez, Plaintiffs,
AIR AND LIQUID SYSTEMS CORPORATION, Individually and as Successor to BUFFALO PUMPS, INC., et al., Defendants.


          NANCY J. ROSENSTENGEL United States District Judge.

         This matter comes before the Court on several motions to dismiss. On August 1, 2016, Defendant General Electric Company (“GE”) filed a motion to dismiss for lack of personal jurisdiction (Doc. 11). On August 5, 2016, Defendants Air & Liquid Systems and Warren Pumps filed nearly identical motions to dismiss for failure to state a claim (Docs. 29, 30). Defendant John Crane joined in the motion filed by Air & Liquid Systems on August 22, 2016 (Doc. 38). The motions are fully briefed and ripe for review.


         Plaintiff Sylvia Perez, Special Administrator of the Estate of Decedent Armando Perez, brought this action against numerous defendants for injuries her husband allegedly sustained from asbestos exposure while serving in the United States Navy from approximately 1944 to 1946 (Doc. 1-1, p. 5). The decedent trained in San Diego, California, and was stationed in Honolulu, Hawaii (Id.). He primarily served aboard the USS Maryland but also worked at various ports when the USS Maryland was being repaired (Id.). Perez claims that the decedent was exposed to asbestos fibers from various products he worked with that were sold by Defendants during his time in the Navy (Id.). On May 4, 2015, the decedent was diagnosed with mesothelioma, which ultimately led to his death (Id., p. 7-8).

         On June 1, 2016, Perez filed a complaint in the Circuit Court of Madison County, Illinois, alleging negligence as to manufacturers of asbestos products (Count I), willful and wanton misconduct (Count II), and loss of consortium (Count III). On July 25, 2016, Defendant Crane Co. removed the case to this Court on the basis of federal officer jurisdiction under 28 U.S.C. § 1442. The Court recently found that federal subject matter jurisdiction is proper and denied Plaintiff's motion to remand the case back to state court (see Doc. 76).


         I. Motions to Dismiss Count III

         The Court first reviews the motions to dismiss Count III, Perez's loss of consortium claim, filed by Defendants Air & Liquid Systems, Warren Pumps, and John Crane (Docs. 29, 30, 38). Defendants claim that Count III should be dismissed because a claim under the Illinois Wrongful Death Act renders a separate claim for loss of consortium superfluous. They assert that Illinois courts consistently and explicitly state that a widow “is precluded from bringing her loss of consortium count as an additional remedy when she also filed a count arising from the Wrongful Death Act.” See Kubian v. Alexian Bros. Medical Ctr., 272 Ill.App.3d 246, 255 (2d Dist. 1995) (citing Knierim v. Izzo, 174 N.E.2d 157 (Ill. 1961)). As a result, they argue, Count III for loss of consortium should be dismissed.

         In response, Perez asserts that she brought claims under both the Survival Act and the Wrongful Death Act. Under the Wrongful Death Act, she can recover for pecuniary losses from her husband's death, arising after his death, including loss of consortium. Under the Survival Act, she can recover for the pain and mental suffering and expenses her deceased husband sustained between the time of his injury and death. She argues that her claim for loss of consortium is derivative of her Survival Act claim; that is, she seeks damages for injuries to the marital relationship that occurred between the time her husband was injured and his death. Perez notes that while she did not expressly invoke the Survival Act in her Complaint, her allegations are sufficient to state a claim under both the Wrongful Death Act and the Survival Act.

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to “test the sufficiency of the complaint, not to decide the merits” of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). Dismissal of an action under this motion is warranted if the plaintiff can prove no set of facts in support of its claims that would entitle it to relief. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In evaluating a motion to dismiss, the Court must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011); Thompson v. Ill. Dep't. of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).

         Under the Wrongful Death Act, a personal representative of the decedent may bring an action for his or her own losses resulting from the decedent's death, “arising after his death, i.e., for his lost wages and other such monetary losses.” Eisenmann v. Cantor Bros., 567 F.Supp. 1347, 1350 (N.D. Ill. 1983) (citing Murphy v. Martin Oil Co., 308 N.E.2d 583 (Ill. 1974)). “The purpose of the Wrongful Death Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent's death.” Elliott v. Willis, 442 N.E.2d 163, 168 (Ill. 1982). “Loss of consortium is one of the pecuniary injuries compensable in a wrongful death action . . . and, therefore, the common law action for loss of consortium is not available as an additional remedy to the surviving spouse.” Dunleavy v. Keene Corp., No. 86-C-2759, 1987 WL 4403, at *1 (N.D. Ill. Feb. 11, 1987).

         The facts of Dunleavy v. Keene Corp. are strikingly similar to those presented here. The plaintiff in that case brought an action against numerous defendants alleging personal injury, wrongful death, and loss of consortium as a result of her husband's exposure to the defendants' asbestos products. Id. The defendants moved to dismiss the loss of consortium claim because it was superfluous to recovery sought under the Wrongful Death Act. Id. The district court agreed that, to the extent the plaintiff sought loss of consortium damages arising after her husband's death, she did not state a claim. Id. In addition to the wrongful death claim, however, the plaintiff, as administrator of her husband's estate, also brought claims arising under the Survival Act for injuries sustained during the interval between the decedent's injury and his death. The court held that “[t]o the extent that the loss of consortium count seeks damages for injury to the marriage during the interval between the decedent's injury and his death, it is derivative of the surviving personal injury claims and is not part of the wrongful death claim.” Id. Thus, the court denied the defendants' motion to dismiss the plaintiff's loss of consortium claim. Id.

         As in Dunleavy, Perez has brought a claim under the Illinois Survival Act for personal injuries her husband suffered prior to his death. The Complaint alleges that the decedent experienced great physical pain and mental anguish as a result of the inhalation, ingestion, and absorption of asbestos fibers (Doc. 1-1, p. 8). Perez also alleges her husband was compelled to expend and become liable for large sums of monies for hospital, medical, and other health care services necessary for the treatment of his asbestos-induced disease and to alleviate the pain, suffering, mental anguish, and physical disability caused by his injury. See Eisenmann v. Cantor Bros., 567 F.Supp. 1347, 1351 (N.D. Ill. 1983) (the Survival Act allows recovery for such injuries as conscious pain and mental suffering, expenses, and lost wages the decedent sustained during the interval between his injury and his death). Thus, the Complaint may be construed as bringing a claim under the Survival Act.

         To the extent that Perez's loss of consortium claim seeks damages for injury to the marriage sustained after her husband's injury but before his death, “it is derivative of the surviving personal injury claims and is not part of the wrongful death claim.” Dunleavy, 1987 WL 4403, at *1. Any recovery under the Wrongful Death Act for injuries to the marriage sustained after her husband's death would not compensate for injuries sustained before his death. Thus, Perez may bring her claim for loss of consortium for any injury to the marriage suffered between the time of her husband's injury and his death. Accordingly, Defendants' motions to dismiss Count III are denied.

         II. GE's Motion to Dismiss for Lack of Personal Jurisdiction

         The Court next reviews GE's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 11). GE argues that because it is a New York corporation with its principal place of business in Massachusetts, [1] Perez cannot establish general personal jurisdiction. Furthermore, because Perez has not alleged any injuries that directly arise out of or relate to GE's activity in Illinois, there can be no specific personal jurisdiction. Thus, GE is entitled to be dismissed for lack of personal jurisdiction. In response, Perez asserts that GE consented to jurisdiction by registering to do business in Illinois and appointing an agent for service of process (Doc. 46, p. 1). Furthermore, GE is subject to both general and specific jurisdiction (Id.). To her response, Perez attached an affidavit from her attorney and six exhibits (Doc. 46-1). GE moved to strike that affidavit and three of the exhibits (Doc. 55). GE also filed a reply in support of its motion to dismiss (Doc. 56).

         Once a defendant moves to dismiss based on the lack of personal jurisdiction, the burden falls on the plaintiff to demonstrate that jurisdiction exists. Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 697 (7th Cir. 2015). When a court determines personal jurisdiction based on written submissions without holding an evidentiary hearing, the plaintiff must establish a prima facie case of personal jurisdiction to survive dismissal. Id.; Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002); see also Snap-On Inc. v. Robert Bosch, LLC, No. 09 C 6914, 2013 WL 5423844, at *4 (N.D. Ill. Sept. 26, 2013). In deciding whether the plaintiff has met the prima facie standard, a court is not limited to the pleadings and may consider affidavits and other outside materials. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003); Leibovitch v. Islamic Republic of Iran, No. 08 C 1939, 2016 WL 2977273, ...

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