{ "id": 521003, "name": "THERESA RISCH, as Special Adm'r of the Estate of Ronald Risch, Deceased, et al., Plaintiffs-Appellants, v. PAUL J. KREZ COMPANY, Defendant-Appellee", "name_abbreviation": "Risch v. Paul J. Krez Co.", "decision_date": "1997-03-14", "docket_number": "Nos. 1\u201495\u20140444, 1\u201495\u20140446 cons.", "first_page": "194", "last_page": "199", "citations": [ { "type": "official", "cite": "287 Ill. App. 3d 194" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "669 N.E.2d 947", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 300", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182730 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0300-01" ] }, { "cite": "975 F.2d 1342", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518930 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1347" } ], "opinion_index": 0, "case_paths": [ "/f2d/975/1342-01" ] }, { "cite": "821 S.W.2d 822", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9989541 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/sw2d/821/0822-01" ] }, { "cite": "616 N.E.2d 652", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 258", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2929615 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0258-01" ] }, { "cite": "500 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "37" }, { "page": "37" } ], "opinion_index": 0 }, { "cite": "114 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542831 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0252-01" ] }, { "cite": "654 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291696 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0519-01" ] }, { "cite": "614 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5100450 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0247-01" ] }, { "cite": "640 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887274 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0631-01" ] } ], "analysis": { "cardinality": 547, "char_count": 10159, "ocr_confidence": 0.759, "pagerank": { "raw": 9.87765807283984e-08, "percentile": 0.5348707588743591 }, "sha256": "433ebf3fcb45512ba9dfddda0de6358f2bf39363937fa02e4d1c3b284fd17888", "simhash": "1:7a0b1d768b80bed1", "word_count": 1555 }, "last_updated": "2023-07-14T19:23:12.186621+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THERESA RISCH, as Special Adm\u2019r of the Estate of Ronald Risch, Deceased, et al., Plaintiffs-Appellants, v. PAUL J. KREZ COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nPlaintiffs appeal the trial court\u2019s order granting defendant\u2019s motion for summary judgment. Plaintiffs brought suit against the Paul J. Krez Company and others to recover damages for the wrongful deaths of their husbands. Plaintiffs alleged that their husbands\u2019 deaths were the result of exposure to asbestos products designed, processed, manufactured, sold, and distributed by Krez. Krez filed a motion for summary judgment, claiming that the construction design management and supervision statute of repose (construction statute of repose) barred plaintiffs\u2019 action. 735 ILCS 5/13\u2014214 (West 1992). The trial court granted the motion and plaintiffs appeal. We affirm.\nIncident to their employment, Ronald Risch and John Maguire were each exposed to asbestos pipe-covering material during the 1960s and 1970s. In 1992, both men were diagnosed as having mesothelioma, a fatal cancer of the chest and abdominal lining. In their depositions, Risch and Maguire testified that the Krez employees installed the Owens Corning Kaylo insulation at their jobsites. Risch and Maguire subsequently died from mesothelioma. Their estates brought wrongful death actions against Krez.\nPlaintiffs each alleged that Krez designed, processed, manufactured, sold, and distributed asbestos insulation. The essence of the complaints is that Krez failed to warn and advise the product users of the dangers of working with and being exposed to asbestos-containing products. The complaints further charged that Krez failed to develop a safer alternative product, despite knowledge of the hazards.\nIn response, Krez denied that it was in the business of manufacturing, distributing, and selling asbestos-containing products. To the contrary, Krez claimed that, as an installer, Krez merely brought its materials to various worksites under the terms of labor and material subcontracts. Krez filed motions for summary judgment, arguing that plaintiffs\u2019 suits were barred by the construction statute of repose, which limits the ability to bring an action sounding in tort to 10 years after the alleged act or omission. 735 ILCS 5/13\u2014214(b) (West 1992).\nPlaintiffs challenged Krez\u2019s motions by arguing that they were not seeking redress for Krez\u2019s installation activities, but for Krez\u2019s role as a manufacturer, distributor, and seller. Plaintiffs claimed that Krez\u2019s installation activities were merely incidental to Krez\u2019s sale and transfer of the asbestos products. In support of their allegations, plaintiffs argued that Krez\u2019s failure to pay sales tax is evidence of its status as a seller, as no sales tax is incurred when wholesale goods are transferred to a purchaser with the intent to resell.\nFurthermore, plaintiffs demonstrated that Krez paid the Illinois retailers occupational tax associated with the asbestos products. The Illinois retailers occupational tax is a tax on the occupation of making retail sales in the state. Plaintiffs acknowledged, however, that Krez was using \"asbestos containing products manufactured by Johns Manville, Standard Insulation and Empire Ace.\u201d Plaintiffs did not introduce any evidence that Krez sold or distributed such products to subcontractors or to purchasers independent of sales on a labor and material basis.\nThe trial court granted Krez\u2019s motions for summary judgment, finding that the holdings in Illinois Masonic Medical Center v. AC&S, 266 Ill. App. 3d 631, 640 N.E.2d 31 (1994), and McIntosh v. A&M Insulation Co., 244 Ill. App. 3d 247, 614 N.E.2d 203 (1993), were controlling. The court ruled that the evidence demonstrated Krez was in the business of installing insulation and that any sale of such products was merely incidental to its installation activities. The plaintiffs appealed and filed motions for consolidation.\nOn appeal, plaintiffs argue that while the construction statute of repose may bar actions based upon defendant\u2019s installation activities, plaintiffs\u2019 action is based solely upon defendant\u2019s role as a manufacturer and seller of asbestos-containing materials. Plaintiffs claim that selling is a separate and distinct activity that is not protected under the construction statute of repose. Because adoption of such an argument would render the \"activity analysis\u201d futile, we affirm the trial court\u2019s ruling.\nThe construction statute of repose provides:\n\"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.\u201d 735 ILCS 5/13\u2014214(b) (West 1992).\nCourts must determine whether the product constitutes an improvement to real property and whether the defendant performed activities enumerated in the statute. Adcock v. Montgomery Elevator Co., 274 Ill. App. 3d 519, 654 N.E.2d 631 (1995).\nFor the first time, in their reply brief, plaintiffs argue that the installation of asbestos products could not constitute an improvement to real property. Pursuant to Supreme Court Rule 341(e)(7), we find that this issue is waived. See 134 Ill. 2d R. 341(e)(7). Finding that plaintiffs have waived their improvement argument, we turn to their claim that the statute of repose does not protect Krez for its alleged selling and distribution activities.\nThe Illinois Supreme Court has held that the construction statute of repose \"protects, on its face, anyone who engages in the enumerated activities,\u201d noting that mere labels are not dispositive. (Emphasis omitted.) People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261, 500 N.E.2d 34, 37 (1986). While the statute clearly protects construction designers and installers, a unique situation arises when a defendant both manufactures and installs a product. In Illinois, a manufacturer is not protected under the construction statute of repose \"unless the manufacturer can demonstrate its role in the construction extended beyond furnishing standard products generally available to the public.\u201d (Emphasis omitted.) Illinois Masonic Medical Center v. AC&S, 266 Ill. App. 3d 631, 638, 640 N.E.2d 31, 35 (1994). Under the activity analysis, manufacturers are afforded protection when they substantially participate in the incorporation or installation of the product at the jobsite or custom design the product for the specific jobsite. People v. Asbestospray Corp., 247 Ill. App. 3d 258, 616 N.E.2d 652 (1993).\nThis analysis was originally set forth by the Missouri Supreme Court in Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822 (Mo. 1991). The seventh circuit found the activity analysis useful for determining the scope of protection afforded by the construction statute of repose. Witham v. Whiting Corp., 975 F.2d 1342 (7th Cir. 1992). In Witham, the court held that the construction statute of repose protected the defendant manufacturer, noting that the defendant \"did not place the crane into the 'stream of commerce.\u2019 It did not simply pluck the crane from its inventory and ship it to Allied. Instead, it specially manufactured the crane for Allied based on information Allied provided about its plant.\u201d Witham, 975 F.2d at 1347.\nThis review of the development of the activity analysis is useful in resolving the question before this court. That is, whether the construction statute of repose bars plaintiffs\u2019 action where plaintiffs allege that the defendant designed, processed, manufactured, sold, and distributed the product, while ignoring the defendant\u2019s installation activities. In McIntosh v. A&M Insulation Co., 244 Ill. App. 3d 247, 614 N.E.2d 203 (1993), this court barred plaintiff\u2019s action where the plaintiff alleged that the defendant sold, distributed and installed asbestos products on the jobsite but failed to plead facts that demonstrated that defendant\u2019s selling activities were anything more than incidental to the installation. The court determined that the plaintiff\u2019s allegations of selling and distributing were conclusory and granted the defendant\u2019s motion to dismiss. McIntosh, 244 Ill. App. 3d 247, 614 N.E.2d 203.\nPlaintiffs argue that they have provided the evidence not produced in McIntosh, entitling them to proceed against Krez for its sales activities. We disagree. We acknowledge that, in certain instances, the construction statute of repose does not bar a plaintiff\u2019s suit against a defendant for that discrete portion of the defendant\u2019s activities not enumerated in the statute. See, e.g., Krueger v. A.P. Green Refractories Co., 283 Ill. App. 3d 300, 669 N.E.2d 947 (1996). In the instant case, however, plaintiffs have merely introduced evidence that Krez paid certain taxes that are typically paid by persons reselling goods. We find no evidence indicating that Krez was engaged in distinct sales activity but, rather, find that Krez was an insulation installer that worked on a material and labor basis. Plaintiffs claim that this labor and material activity is sufficient to label Krez a \"seller\u201d of the asbestos-containing products. However, the Illinois Supreme Court has stated that the construction statute of repose \"does not exclude persons based upon their status\u201d but instead focuses upon their activities. People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261, 500 N.E.2d 34, 37 (1986). Because we find the evidence demonstrates that defendant was engaged only in the activity of installing insulation, we affirm the trial court\u2019s ruling granting summary judgment.\nAffirmed.\nHOFFMAN and CAHILL, JJ., concur.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Cooney & Conway, of Chicago (William R. Fahey, Kathy Byrne, and Michael D. Mulvihill, of counsel), for appellants.", "McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Gregory L. Cochran, and Kristin L. Dvorsky, of counsel), for appellee." ], "corrections": "", "head_matter": "THERESA RISCH, as Special Adm\u2019r of the Estate of Ronald Risch, Deceased, et al., Plaintiffs-Appellants, v. PAUL J. KREZ COMPANY, Defendant-Appellee.\nFirst District (6th Division)\nNos. 1\u201495\u20140444, 1\u201495\u20140446 cons.\nOpinion filed March 14, 1997.\nRehearing denied April 15, 1997.\nCooney & Conway, of Chicago (William R. Fahey, Kathy Byrne, and Michael D. Mulvihill, of counsel), for appellants.\nMcKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Gregory L. Cochran, and Kristin L. Dvorsky, of counsel), for appellee." }, "file_name": "0194-01", "first_page_order": 212, "last_page_order": 217 }