Smith v. Crane Co. (2014)

Our plain-English summary of Smith v. Crane Co. (U.S. District Court, Northern District of Illinois, July 14, 2014).

Kenneth Smith, Jr. and his wife Diane sued Crane Co. and 25 other defendants in federal court in Illinois. Kenneth was diagnosed with malignant mesothelioma in June 2013. He alleged that products Crane sold or supplied to the Navy exposed him to asbestos while he served from 1964 to 1968. Diane claimed loss of consortium. Crane and Ingersoll-Rand moved to dismiss that claim, arguing they owed Diane no duty because the couple married in 1979, after the exposure. The court applied two Illinois appellate decisions, Monroe and Gillenwater, which held that a spouse cannot recover for loss of consortium if the couple was not married when the exposure or injury happened. The plaintiffs argued that the Illinois discovery rule should allow the claim. The court said that rule only delays when a limitations period starts and does not decide whether a claim exists. The plaintiffs also asked the court to follow California and other states' approaches. The court declined, because it had to predict how the Illinois Supreme Court would rule and saw no persuasive sign it would depart from the appellate courts. It granted the motion and dismissed Count III.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Northern District of Illinois
• Decided: July 14, 2014
• Docket: No. 13 C 7411
• Stage: Motion to dismiss
• State: Illinois

Outcome. The court granted Crane Co.'s and Ingersoll-Rand's motion to dismiss Diane Smith's loss of consortium claim (Count III), because she married Kenneth after his alleged asbestos exposure.

What the court held. Under Illinois appellate decisions (Monroe and Gillenwater), a defendant owes no duty to a spouse for loss of consortium if the couple was not married when the exposure or injury occurred, and the discovery rule does not change this.

Issues decided: Choice of Law, Loss of Consortium, Statute of Limitations.

The people and their exposure

• Kenneth D. Smith, Jr.: mesothelioma

The defendants

• Crane Co. (manufacturer)
• Ingersoll-Rand Corporation (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Smith v. AW Chesterton Company (March 6, 2014). The court denied the plaintiffs' motion to remand, so Crane Co.'s federal officer removal stood and the case stayed in federal court.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Nolan v. Johns-Manville Asbestos (Illinois Supreme Court, 1981). The Illinois Supreme Court affirmed the appellate court's reversal of summary judgment for the defendants (Johns-Manville and others) and remanded to the circuit court, so the plaintiff's estate may proceed on the asbestosis claim.
• Gillenwater v. Honeywell Intern., Inc. (Illinois Appellate Court, 4th District, 2013). The appellate court affirmed the trial court's judgment notwithstanding the verdict for Honeywell, Owens-Illinois and Pneumo Abex on Charles Gillenwater's conspiracy claims, and affirmed summary judgment for them on Donita Gillenwater's loss-of-consortium claims.
• Vanhooser v. Superior Court of Los Angeles County (California Court of Appeal, 2nd Appellate District, 3rd Division, 2012). The Court of Appeal granted the wife's writ petition and directed the trial court to vacate its summary judgment for Hennessy Industries on her loss of consortium claim and to deny the motion.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

KENNETH D. SMITH, JR. and DIANE SMITH, Plaintiffs,

v.

CRANE CO., etal., Defendants.

No. 13 C 7411.

July 14, 2014.

United States District Court, N.D. Illinois, Eastern Division.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Plaintiffs Diane and Kenneth D. Smith, Jr. sued Defendant Crane Co. ("Crane"), along with 25 other defendants,[1] seeking damages Kenneth incurred as a result of exposure to asbestos, and for Diane's loss of consortium. Count III alleges that Diane suffered loss of consortium due to Kenneth's development of mesothelioma, caused by defendants' negligent use of asbestos in products used by Kenneth during his employment. Defendants have moved to dismiss Count III, pursuant to Federal Procedure Rule 12(b)(6). For the reasons discussed below, defendants' motion to dismiss Count III is granted. BACKGROUND

Plaintiffs Diane and Kenneth Smith married on August 3, 1979. Prior to their marriage, Kenneth served in the United States Navy from 1964 to 1968. Kenneth alleges that during the course of his employment, certain products sold or supplied by Crane to the Navy exposed him to asbestos fibers. On June 25, 2013, Kenneth was diagnosed with malignant mesothelioma. Diane and Kenneth brought suit for Kenneth's injuries from the asbestos exposure, and for Diane's loss of consortium due to Kenneth's exposure to asbestos and his subsequent illness.

DISCUSSION

In Count III of the amended complaint, plaintiff Diane alleges loss of consortium resulting from Kenneth's mesothelioma. Defendants argue that they owe no duty to Diane because Kenneth's exposure to asbestos predates the couple's marriage. Defendants rely on two Illinois Appellate Court cases, Monroe v. Trinity Hosp.-Advocate, 345 Ill. App. 3d 896, 803 N.E.2d 1002 (Ill. App. Ct. 2003) and Gillenwater v. Honeywell Int'l, Inc., 2013 IL App (4th) 120929, 375 Ill. Dec. 123, 996 N.E.2d 1179.[2] In Monroe, the court affirmed the dismissal of a wife's loss of consortium claim because she was not married to her husband at the time he suffered serious injury, even though the injury was not discovered until after the marriage. 345 Ill. App. 3d at 900. Gillenwater, relying on Monroe, addressed the same question and held that a wife could not recover for loss of consortium because she was not married to her husband at the time he was allegedly exposed to asbestos. 2013 IL App (4th) 120929 ¶149.

Under Monroe and Gillenwater, loss of consortium claims are "legally separate and distinct from the directly injured spouse's cause of action," although they are predicated on the alleged injury to a spouse. Monroe, 345 Ill. App. 3d at 899. Consortium involves a legally recognized marital relationship. Sostock v. Reiss, 92 Ill. App. 3d 200, 206, 415 N.E.2d 1094, 1098 (1980). Loss of consortium stems from the inability to sustain all facets of that relationship. Id. (citing Blagg v. Illinois F.W.D. Truck and Equipment Co., 143 Ill.2d 188, 200, 157 Ill.Dec. 456, 572 N.E.2d 920 (1991)).

To recover in tort, one party must owe a duty to another. Monroe, 345 Ill. App. 3d at 899. Essentially, "there can be no recovery in tort for negligence unless the defendant has breached a duty owed to plaintiff." Sostock, 92 Ill. App. 3d at 206. See also Lyons v. Christ Episcopal Church, 71 Ill. App. 3d 257, 27 Ill.Dec. 559, 389 N.E.2d 623 (1979). Thus, for a breach of duty to occur, the couple must be married at the time the alleged injury transpired. Monroe, 345 Ill. App. 3d. at 899. If a martial relationship does not exist at the time of the alleged injury, a defendant owes no duty to the spouse alleging loss of

consortium. Sostock, 92 Ill. App. 3d at 206. Here, Diane and Kenneth were not married at the time of Kenneth's alleged exposure to asbestos. Since no martial relationship existed at the time of exposure, defendants owed no duty to Diane. Plaintiffs respond by arguing that the Illinois discovery rule allows for a loss of consortium claim to toll along with the cause of action. Under Illinois law, a cause of action accrues "when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused." Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868 (1981). Loss of consortium claims can commence at the same time as the cause of action. 735 ILCS 5/13-203. Nevertheless, the Illinois discovery rule tolls the statute of limitations that would otherwise apply, and was not intended to " [determine] whether a tort claim ever arose in the first place." Monroe, 345 Ill. App. 3d at 900 (emphasis in original) (quoting Zwicker v. Altamont Emergency Room Physicians Med. Grp., 98 Cal. App. 4th 26, 34, 118 Cal. Rptr. 2d 912 (2002)). Further, the rule does not indicate that loss of consortium claims can be brought for alleged injuries that occurred before a martial relationship began. Monroe, 345 Ill. App. 3d at 900. In the instant case, because Diane and Kenneth Smith married after Kenneth's alleged exposure to asbestos, no valid cause of action for Diane existed at the time of exposure. Because the discovery rule's scope does not include loss of consortium claims for spouses married after the injury occurred, when no valid cause of action existed, plaintiffs' first argument fails.

Plaintiffs next urge this court to disregard the Illinois Appellate Court and instead adopt California's approach to loss of consortium claims in asbestos cases. Plaintiffs argue that Vanhooser v. Superior Court, 206 Cal. App. 4th 921 (2012), as well as several cases from other states,[3] should be applied in lieu of Monroe and Gillenwater. Yet, this court is bound to predict the outcome as if decided by the Illinois Supreme Court. Allen v. Transamerica Ins. Co., 128 F.3d 462, 466 (7th Cir. 1997). The Illinois Supreme Court has yet to address this issue.[4] Accordingly, this court must rely on the decisions of the intermediate Illinois appellate courts unless "there are persuasive indications that the highest state court would decide the issue differently." Allen, 128 F.3d at 466; Clarin Corp. v. Massachusetts General Life Ins. Co., 44 F.3d 471, 474 (7th Cir. 1994). No such persuasive indications exist, and the Gillenwater court specifically rejected Vanhooser. Gillenwater, 2013 IL App (4th) 120929 ¶151. Consequently, this court must follow the Illinois Appellate Court, apply Gillenwater and Monroe, and grant the motion to dismiss in favor of defendants.

CONCLUSION

For the foregoing reasons, defendant Crane and Ingersoll-Rand Corporation's motion to dismiss Count III is granted. [1] Plaintiffs named 26 defendants in their complaint, many of which have already settled or have been voluntarily dismissed. Because the instant motion relates only to Crane and defendant Ingersoll-Rand Corporation, which moved to join Crane's motion (Doc 142), the court refers to both movants as the "defendants."

[2] The parties agree that Illinois law applies in this diversity case.

[3] Green v. A.P.C., 960 P.2d 912, 918-19 (Wash. 1998); Kociemba v. G.D. Searle & Co., 683 F. Supp. 1577, 1578 (D. Minn. 1988); Furby v. Raymark Indus., Inc., 397 N.W.2d 303, 306-07 (Mich. Ct. App. 1986); Stager v. Schneider, 494 A.2d 1307, 1316 (D.C. 1985). [4] The Illinois Supreme Court denied the plaintiffs' petition for leave to appeal. See Gillenwater v. Honeywell Int'l, Inc., 2013 IL App (4th) 120929, 996 N.E.2d 1179, appeal denied, 116739, 2014 WL 466089 (Ill. Jan. 29, 2014).

Sources

• The opinion on Google Scholar
• Illinois asbestos laws
• Illinois asbestos exposure sites