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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

McKenna Law Update – December 2013

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  • U.S. DISTRICT COURT APPLIES CONSTRUCTION STATUTE OF REPOSE TO DISMISS PLAINTIFF’S CLAIMS IN ASBESTOS CASE
  • PLAINTIFF’S LAWSUIT DISMISSED FOR NOT NAMING DECEDENT’S ADMINISTRATOR IN ORIGINAL COMPLAINT
  • REMINDER OF CHANGE IN LAW
  • TRIAL RESULTS
  • CONGRATULATIONS
  • WELCOME

 

U.S. DISTRICT COURT APPLIES CONSTRUCTION STATUTE OF REPOSE TO DISMISS PLAINTIFF’S CLAIMS IN ASBESTOS CASE

The U.S. District Court for the Northern District of Illinois granted summary judgment in favor of two defendants in Stanley v. Ameren Illinois Co., et al., 2013 U.S. Dist. LEXIS 151772, 2013 WL 5745339, holding that Plaintiff’s negligence claims were barred by the Illinois Construction Statute of Repose.

The decedent, Peter Stanley, worked as a boiler engineer at a number of Midwestern power plants during the 1960’s. During the course of his career, he worked around asbestos-containing pipe insulation. Following his diagnosis with mesothelioma, Stanley filed a lawsuit seeking damages in negligence from various defendants for his exposure to asbestos dust and fibers during the course of his employment. Peter Stanley subsequently died from his disease and his wife pursued his claims on behalf of his estate.

Two defendants, Ameren Illinois Company (Ameren) and Sargent & Lundy (Sargent) moved for summary judgment on the theory that Illinois’ 10-year Construction Statute of Repose bars the claims against them because Peter Stanley’s injuries were the result of construction projects dating back to the 1960’s. The court granted the defendants’ motions.

The Illinois Construction Statute of Repose provides that, "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 from the time of such act or omission." 735 ILCS 5/13-214(b). The statute of repose applies when "(1) the item at issue is an improvement to real property; and (2) the defendant’s actions fall within the scope of the activities enumerated in the statute." MBA Enterprises, Inc. v. N. Ill. Gas Co., 307 Ill. App. 3d 285, 717 N.E. 2d 849, 852, 240 Ill. Dec. 500 (Ill. App. Ct. 1999).

The key question addressed by the Court is whether installing asbestos-containing insulation, the alleged harmful activity, was an improvement to real property under Section 13-214(b). The Illinois Supreme Court identified four criteria for determining whether something is an improvement to real property. The criteria are: "whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced." St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill.2d 1, 605 N.E.2d 555, 178 Ill. Dec. 761 (Ill. 1992). Additionally, when applying these criteria, the Court must consider the entire system that the defendant helped to design or construct and not merely the component that may have caused the injury. Garner v. Kinnear Mfg. Co., 37 F.3d 263, 268 (7th Cir. 1993).

The Court applied these factors and determined that installing asbestos-containing insulation is an improvement to real property. According to the record, power plants are designed to include thermal insulation at all times and would not operate without it. Additionally, thermal insulation allows workers to be present inside the plant and for equipment to survive in the presence of extreme heat. Finally, not using thermal insulation would be extremely inefficient from an economic standpoint and from an energy-production standpoint. The record, as described, established that thermal insulation was an essential or integral part of the powerplant where it was applied, and therefore it was considered an improvement to real property under the Illinois Construction Statute of Repose.

For further information contact Tim Hayes at 312.558.8325 or tmhayes@104.236.6.34..
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PLAINTIFF’S LAWSUIT DISMISSED FOR NOT NAMING DECEDENT’S ADMINISTRATOR IN ORIGINAL COMPLAINT

Section 5/13-209 of the Illinois Code of Civil Procedure governs the proper limitations period to file suit when a defendant has died. Under 13-209(b), if an estate has been opened for the decedent and a personal representative has been appointed by the court, the action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within six months after the person’s death.

On the other hand, Section 209(c) allows the plaintiff to proceed directly against the personal representative, notwithstanding the fact that the claims would otherwise be untimely because the plaintiff did not know about the defendant’s death until after the expiration of the limitations period. This option is subject to certain conditions: (1) the plaintiff must proceed with reasonable diligence to move the court for leave to file an amended complaint substituting the personal representative, and (2) the plaintiff must also proceed with reasonable diligence to serve process upon the personal representative.

In Relf v. Shatayeva, 2013 IL 114925 (October 18, 2013), the plaintiff was involved in a motor vehicle accident in February of 2008 with Joseph Grand Pre, Jr. who subsequently died on April 25, 2008. The record showed that a paid death notice was published in the Chicago Tribune on April 30, 2008 and probate proceedings involving the decedent’s estate were initiated in the Circuit Court of Cook County by August of 2008. Finally, the decedent’s son, Gary, was appointed as the independent administrator of the estate in September of 2008.

The plaintiff filed her lawsuit for personal injuries in February of 2010, just prior to the expiration of the two-year statute of limitations. The sole defendant named on the complaint was the decedent, Joseph Grand Pre, Jr. The plaintiff tried to serve the decedent once through the sheriff’s office and then appointed a special process server who informed the plaintiff of the decedent’s death on May 17, 2010. On September 24, 2010 the plaintiff moved the court to take notice of the decedent’s death and to appoint a special administrator for the purposes of defending the action against him and to grant plaintiff leave to amend the complaint. In support of her motion, the plaintiff stated she was unaware as to whether any personal representative had been appointed by the Estate of the decedent and asked that Natasha Shatayeva, a legal assistant of the plaintiff’s lawyer, be appointed to serve as the special administrator. The plaintiff’s motion was granted by the circuit court.

After the plaintiff filed a second amended complaint in March of 2011, Shatayeva responded by filing a 2-619 motion to dismiss on the grounds that plaintiff’s lawsuit was not commenced within the time limited by law. Shatayeva argued that the original complaint named only the decedent as a defendant and a dead person is a nonexistent entity who cannot be a party to a lawsuit and therefore the original complaint was void ab initio. Shatayeva argued that Section 5/13-209(b) applied because a personal representative, decedent’s son, had been appointed by the Circuit Court and under that section the plaintiff could have preserved her claims by bringing the action against the personal representative within six months of decedent’s death. Furthermore, Shatayeva argued in the alternative, that even under Section 5/13-209(c), the plaintiff did not exercise reasonable diligence in amending her complaint to add the decedent’s son as a defendant or to serve the decedent’s son with process. Shatayeva argued that the appointment of the legal assistant as special administrator, when the decedent’s son was already appointed, was improper.

The trial court agreed with Shatayeva and dismissed the complaint with prejudice. The appellate court reversed and held that because plaintiff was unaware of the decedent’s death, Section5/13-209(c) was applicable and the plaintiff’s actions in securing the appointment of Shatayeva as the special administrator were sufficient to preserve the validity of plaintiff’s otherwise untimely cause of action.

The Illinois Supreme Court reversed the appellate court and affirmed the circuit court’s dismissal of the plaintiff’s lawsuit. The Court stated that the factual scenario here falls within Section 5/13-209(c) as the lawsuit was commenced against a deceased person whose death was unknown to the plaintiff before the expiration of the limitations period. The Court framed the issue of whether Shatayeva qualifies as a "personal representative". The Court reasoned that the decedent’s son, who filed the petition in probate court and who was appointed as the independent administrator, was the decedent’s personal representative and that Shatayeva was not. Shatayeva did not file a petition for letters of office nor was she granted letters of administrator to settle the decedent’s estate; therefore the plaintiff did not file her lawsuit against the proper defendant. The Court held that the plaintiff had ample time to discover who the proper defendant was and to amend her complaint accordingly, but she did not.

For further information, contact Alex Sweis at 312.558.3994 or asweis@104.236.6.34.
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REMINDER OF CHANGE IN LAW

The rules for completing settlements will change in Illinois as of January 1, 2014. Settling defendants must provide a plaintiff with a release within 14 days of reaching a settlement and must pay the settlement within 30 days of receiving an executed release. Failure to timely pay will result in a judgment against the defendant including costs and interests. No extensions are contained in the law for plaintiff’s failure to resolve lien issues.
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TRIAL RESULTS

Julie Ramson recently obtained a verdict in favor of her doctor in a medical malpractice trial. The plaintiff, visiting from Lithuania, had been seen by other doctors for a respiratory problem and had been taking medications from Lithuania in addition to the prescribed medications. When she did not improve, she sought treatment from Julie’s client who took her off all the other medications and ran blood tests. She returned a couple of days later and reported that she felt better. He prescribed antibiotics for pneumonia and told her to return if she did not improve. Her family testified that she did well for a couple of days until she rapidly deteriorated and was admitted to the hospital ICU. She died 11 days later from pneumonia. The plaintiff claimed she should have been admitted to the hospital sooner, but Julie was able to show that, although the defendant gave the appropriate treatment, the plaintiff experienced a very rare and sudden explosive event from the pneumonia which happens without warning and nothing further could have been done. Dawn Ehrenberg assisted with the trial.

Sara Cook and Kristin Tauras successfully obtained a directed judgment for the Seller-Defendants in a Consumer Fraud and Deceptive Trade Practices Act trial. The judge tried liability only in a bifurcated trial on the issue of the Sellers’ alleged knowing deception in the sale of a 7.5 million dollar apartment building. The Court found that when the Buyer had an "as is" contract and an unlimited opportunity to do due diligence, the Buyers’ failure to do so precluded the Buyers’ claim. The Court noted that the evidence of the Buyers’ "intentional closing of their eyes to the obvious was overwhelming". The Buyers were claiming four million dollars in damages.
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CONGRATULATIONS!!!

Julie Ramson was awarded the Illinois Jury Verdict Reporter Defense Career Achievement Award based upon her body of trial work.

The firm has been listed in the 2013 Super Lawyers Business Edition. Greg Cochran, Margaret Foster and Thomas Lucas were selected Super Lawyers in 2012 and 2013 in business related practice areas.

Greg Cochran has been listed in the Leading Lawyers Business Edition.

WELCOME!

We are happy to announce that Jaime Dowell has joined our firm. Jaime assists individuals in filing Chapter 7 and Chapter 13 bankruptcies. Prior to practicing in McHenry County, she gained extensive experience practicing bankruptcy law in Chicago with one of the nation's largest consumer bankruptcy firms. She is admitted to the Illinois State Bar and the United States District Court for the Northern District of Illinois. Jaime is also a certified arbitrator with the Better Business Bureau.

Jaime received her law degree from Benjamin N. Cardozo School of Law in New York, New York, and her undergraduate degree from Michigan State University in East Lansing, Michigan. After graduating from law school, Jaime was accepted into the Department of Justice Attorney Honors Program and worked with the Executive Office of Immigration Review in Chicago, Illinois and Bloomington, Minnesota.
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