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Campbell v. ACME Insulations, Inc.

Court of Appeals of Illinois, First District, Sixth Division

May 18, 2018

ARLIN CAMPBELL, Deceased, By and Through His Special Administrator, Anissa Campbell Ivey, Plaintiff-Appellee,
v.
ACME INSULATIONS, INC.; ACTION INSULATING SERVICES, INC.; AJAX ELECTRIC COMPANY; AJAX MAGNETHERMIC CORPORATION; ALLEGHENY INTERNATIONAL, INC., f/k/a Allegheny Steel Company; ALLEGHENY STEEL COMPANY; ALLIED INSULATION SUPPLY CO., INC.; ALLOYED INSULATION COMPANY, INC.; ARVINMERITOR, INC.; ARCTIC INSULATION, INC.; A.W. CHESTERTON COMPANY; BRAND INSULATIONS, INC.; BORG-WARNER CORPORATION, by its successor-in-interest Borg-Warner Morse TEC, Inc.; CARBOLINE COMPANY; CARDINAL INDUSTRIAL INSULATION CO., INC.; CARLISLE INSULATION, INC.; CATERPILLAR, INC.; CBS CORPORATION, f/k/a Viacom, Inc., merger to CBS Corporation, f/k/a Westinghouse Electric Corp.; CERTAIN-TEED CORPORATION; COLFAX CORPORATION, a Virginia Corporation, a/k/a Warner Electric, a/k/a Boston Gear, a/k/a Delroyd Worm Gear Formsprag Clutch, a/k/a Stieber Clutch, a/k/a Ameridrives Couplings, a/k/a Wichita Clutch, a/k/a Nuttall Gear, a/k/a Industrial Clutch, a/k/a Marland Clutch; No. 1-17-3051 CONTINENTAL TEVES, INC.; CROWN, CORK AND SEAL COMPANY, INC.; CSR, LTD, a/k/a CONSOLIDATED SUGAR AND REFINING; THE DOW CHEMICAL COMPANY; FERRO CORPORATION; FERRO INDUSTRIES; FOSECO, INC.; GENERAL ELECTRIC COMPANY; GENERAL GASKET CORPORATION; GEORGIA-PACIFIC, LLC; GRINNELL, LLC; HENNESSY INDUSTRIES, INC.; HONEYWELL INTERNATIONAL, INC.; IOWA ILLINOIS TAYLOR INSULATION CONTRACTING, INC.; JOHN CRANE, INC.; THE J.R. CLARKSON COMPANY, successor to the Kunkle Valve Company, and successor to J.E. Lonergan Company; L & S INSULATION CO., INC.; LATROBE SPECIALTY STEEL COMPANY; LEAR-SIEGLER DIVERSIFIED HOLDINGS CORP.; LENNOX INDUSTRIES, INC., f/k/a Lennox Furnace Company; LUSE-STEVENSON CO.; M&O INSULATION COMPANY; MAREMONT CORPORATION; METROPOLITAN LIFE INSURANCE COMPANY; MIDLAND ENGINEERING COMPANY, INC.; MINE SAFETY APPLIANCES COMPANY; MORTON INTERNATIONAL, INC., as successor-in-interest to Morton Thiokol, Inc., as successor-in-interest to Thiokol Corporation; NATIONAL SERVICE INDUSTRIES, INC. (Delaware), f/k/a North Brothers, National Service Industries, f/k/a North Brothers; NELSON INSULATION COMPANY; ON MARINE SERVICES COMPANY, a Delaware Corporation, and a wholly owned subsidiary of Oglebay Norton Company, an Ohio Corporation; OWENS-ILLINOIS, INC.; PAUL J. KREZ COMPANY; SPRINKMANN SONS CORPORATION; PNUEMO ABEX CORPORATION; REPUBLIC STEEL; RILEY POWER, INC., f/k/a Riley Stoker Corporation, and Taylor Insulation Company; TELEDYNE MIDAMERICAN CORPORATION, a/k/a Teledyne-Vasco, f/k/a Vasco Steel; TRIANGLE ENTERPRISES, INC., a/k/a Triangle Insulation Company; UNION CARBIDE CORPORATION; UNION ELECTRIC STEEL CORPORATION; UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC., f/k/a Cytemp Steel; WASHINGTON STEEL CORPORATION; WILKIN INSULATION CO.; WTI RUST HOLDINGS, INC.; and YOUNG INSULATION GROUP OF ST. LOUIS, INC., Defendants, General Electric Company, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County No. 17 L 4548, Honorable Clare Elizabeth McWilliams, Judge, Presiding.

          HOFFMAN PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Connors and Delort concurred in the judgment and opinion.

          OPINION

          HOFFMAN PRESIDING JUSTICE.

         ¶ 1 The defendant, General Electric (GE), appeals from an order of the circuit court of Cook County denying its motion to dismiss for lack of personal jurisdiction over it in an action brought by the plaintiff, Arlin Campbell, for injuries allegedly resulting from his exposure to asbestos contained in GE's products.[1] For the reasons that follow, we reverse the decision of the circuit court and remand this cause with directions to dismiss GE as a party defendant.

         ¶ 2 The following factual recitation is derived from the allegations contained in the plaintiff's complaint, GE's motion to dismiss, the parties' subsequent filings, and the exhibits attached thereto.

         ¶ 3 On May 4, 2017, the plaintiff, a resident of Alabama, filed a complaint in the circuit court alleging that, in December 2016, he was diagnosed with mesothelioma caused by his exposure to asbestos at various jobs in Illinois, Alabama, Louisiana, and Texas between 1961 and 1999. He claimed that asbestos "emanate[ed] from certain products" that he encountered at his various jobs, and that some of the products that he encountered at those jobs were "manufactured, sold, distributed or installed" by GE. Those jobs, according to the complaint, included the plaintiff's sole period of employment in Illinois, when he worked at Republic Steel in Chicago from 1964 to 1965.[2] The complaint did not specifically allege that the plaintiff encountered GE products containing asbestos at Republic Steel.

         ¶ 4 On June 9, 2017, GE filed a motion to dismiss on the basis that the plaintiff's complaint failed to allege sufficient facts to confer personal jurisdiction upon it under section 2-209 of the Code of Civil Procedure (Code) (735 ILCS 5/2-209 (West 2016)), commonly known as the Illinois long-arm statute.[3] GE asserted that it did not consent to the circuit court's jurisdiction, no general personal jurisdiction exists over it, and no specific personal jurisdiction exists because the plaintiff did not allege that he was exposed to asbestos from its products in Illinois.

         ¶ 5 On August 16, 2017, the plaintiff filed a response to GE's motion, arguing that Illinois has "jurisdiction by necessity" because he was exposed to asbestos in multiple states and there is no single forum in which he could sue every defendant. He further asserted that GE consented to jurisdiction by doing business and having a registered agent in this State, and is subject to the circuit court's general personal jurisdiction due to "systematic and continuous business contacts" that cause GE to be "at home" in Illinois. Finally, the plaintiff contended that GE is subject to the circuit court's specific personal jurisdiction because his discovery deposition, which occurred on July 19 and 20, 2017, established that he was exposed to asbestos from GE products in Illinois. According to the plaintiff, GE manufactured the electric furnaces containing asbestos which were used to melt steel at Republic Steel.

         ¶ 6 On August 30, 2017, GE filed a reply that included the affidavit of a former employee, Bryan Toll Jr., who attested that between 1959 and 1979, he oversaw the manufacturing of "industrial furnaces" at the plant where GE maintained its industrial heating division. He denied that GE ever manufactured "any industrial furnace product that [met] or resemble[d] the description of 'electric furnaces' *** as described in [the plaintiff's] deposition, " or that GE built furnaces "designed to 'melt steel.' " GE supplemented its reply with the transcript of the plaintiff's evidence deposition, which occurred on September 27, 2017.

         ¶ 7 On November 7, 2017, the plaintiff filed a supplemental response to GE's motion to dismiss that included an excerpt from a book about electric furnaces that was published in 1914. The excerpt, taken from a chapter titled "Laboratory Furnaces, " mentions the "Arsem" furnace, a type of electric furnace that "operat[es] in a vacuum" and was "made in several forms" by GE.

         ¶ 8 On November 14, 2017, the circuit court denied GE's motion to dismiss in an oral ruling without identifying what basis it found for personal jurisdiction. We granted GE's petition for leave to file an interlocutory appeal pursuant to Supreme Court Rule 306(a)(3) (eff. Nov. 1, 2017).

         ¶ 9 On appeal, GE contends that the circuit court erred in denying its motion to dismiss where the plaintiff failed to establish personal jurisdiction in Illinois. According to GE, (1) no general personal jurisdiction exists because it is not "at home" in Illinois; (2) it did not consent to jurisdiction in Illinois; and (3) no specific personal jurisdiction over it exists because the plaintiff's injury did not arise from its contacts in Illinois. We agree.

         ¶ 10 "The plaintiff has the burden of establishing a prima facie basis to exercise personal jurisdiction over a nonresident defendant." Aspen American Insurance Company v. Interstate Warehousing, Inc., 2017 IL 121281, ¶ 12. The plaintiff's prima facie case may be overcome by a defendant's uncontradicted evidence that defeats jurisdiction. Russell v. SNFA, 2013 IL 113909, ¶ 28. However, "[a]ny conflicts in the pleadings and affidavits must be resolved in the plaintiff's favor" for purposes of determining whether jurisdiction has been established. Id. Whether the circuit court has personal jurisdiction over a party is question of law. Neighborhood Lending Services, Inc. v. Griffin, 2018 IL App (1st) 162855, ¶ 16. Where, as here, the circuit court decides the issue of personal jurisdiction solely on documentary evidence without an evidentiary hearing, our review is de novo. Kowal v. Westchester Wheels, Inc., 2017 IL App (1st) 152293, ¶ 14. We may consider a plaintiff's complaint and any affidavits submitted by the parties; unrebutted allegations are taken as true. Hanson v. Ahmed, 382 Ill.App.3d 941, 943 (2008); see also Ill. S.Ct. R. 212(a)(4) (eff. Jan. 1, 2011) (providing that discovery depositions may be used "for any purpose for which an affidavit may be used").

         ¶ 11 Personal jurisdiction is the authority of the court "to bring a person into its adjudicative process." (Internal quotation marks omitted.) In re M.W., 232 Ill.2d 408, 415 (2009). The Illinois long-arm statute (735 ILCS 5/2-209 (West 2016)), which governs Illinois courts' exercise of personal jurisdiction over nonresidents, specifies that jurisdiction can be invoked based on the commission of a tort within Illinois. Additionally, the statute provides that "[a] court may also exercise jurisdiction on any other basis *** permitted by the Illinois Constitution and the Constitution of the United States." 735 ILCS 5/2-209(c) (West 2016). Accordingly, "[i]f both the federal and Illinois due process requirements for personal jurisdiction have been met, the Illinois long-arm statute is satisfied and no other inquiry is required." Keller v. Henderson, 359 Ill.App.3d 605, 612 (2005). However, if the requirements of due process are not satisfied, then personal jurisdiction cannot be invoked under the long-arm statute. See Hanson, 382 Ill.App.3d at 943 ("[T]he reach of the long-arm statute may lie within or may touch, but cannot extend beyond, the bounds circumscribed by the requirements of due process."). ...


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