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Gray v. National Restoration Systems, Inc.

Case Date: 04/16/2004
Court: 1st District Appellate
Docket No: 1-01-4062 Rel


No. 1-01-4062

    
VALERIE GRAY, Indiv., and as
Independent Adm'r of the Estate
of William Gray, deceased,

               Plaintiff-Appellant,

          v.

NATIONAL RESTORATION SYSTEMS, INC., an
Illinois corporation; CRENOVA, INC., a
foreign corporation, f/k/a
HULS AMERICA, INC., a foreign
corporation; and THE GLENROCK CO., an
Illinois corporation,

               Defendants-Appellees

(Degussa Corporation, a foreign
corporation; Creanova, Inc., a foreign
corporation; Sivento, Inc., a foreign
corporation; Degussa Huls CORPORATION,
a foreign corporation, f/k/a Huls
America, Inc., a foreign corporation,
f/k/a Sivento Inc., a foreign
corporation, f/k/a Kay Fries, Inc., a
foreign corporation, f/k/a Dynamit
Nobel Corporation of America, Inc., a
foreign corporation, f/k/a Degussa
Corporation,

               Defendants).

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)		 Appeal from the
Circuit Court of
Cook County.












No. 97 L 7538












Honorable
Paddy H. McNamara,
Judge Presiding.

JUSTICE REID delivered the opinion of the court:

The plaintiff, Valerie Gray (Gray), individually and asspecial administrator of the estate of William Gray, deceased,(decedent), brought a survival action, an action for wrongfuldeath and a family expense action against the defendants,National Restoration Systems, Inc. (National Restoration),Crenova, Inc., f/k/a Hüls America, Inc. (Hüls),(1) and The GlenrockCorporation (Glenrock), to recover damages for the fatal injuriesincurred by her husband, the decedent, resulting from anexplosion at the decedent's workplace.

Gray appeals from the following orders of the circuit courtof Cook County: (1) an order of May 31, 2000, which grantedNational Restoration's motion to dismiss Gray's second amendedcomplaint pursuant to section 2-619(a)(9) of the Illinois Code ofCivil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)) withprejudice, (2) an order of September 13, 2000, that grantedsummary judgment in favor of Hüls as to certain portions ofGray's second amended complaint, (3) an order of September 12,2000, that granted Glenrock's section 2-619 motion to dismissGray's second amended complaint with prejudice, and the portionof a June 20, 2001 order that denied Gray's motion for leave toallow her third amended complaint to stand against Glenrock andthat also struck Glenrock from Gray's third amended complaint,and (4) a September 28, 2001, order that denied Gray's motion toplead punitive damages. For the reasons that follow, we reversethe decision of the trial court in part, affirm it in part, andremand the cause for further proceedings.

BACKGROUND

National Resurfacing, Inc. (National Resurfacing), andNational Restoration provided concrete repair, waterproofing andcaulking services for a restoration project located at the DaysInn Hotel in Chicago, Illinois, in July 1995. During adeposition, Thomas F. Reagan (T. Reagan) stated that he was thepresident of National Restoration and oversaw the Days Innproject. T. Reagan said that at the time of the occurrence, thedecedent was an employee of National Restoration.

During a deposition, Frank Reagan (F. Reagan), T. Reagan'sfather and also an owner of National Restoration and NationalResurfacing, stated that although National Restoration andNational Resurfacing were two separate legal entities, he and hisson ran the two companies as if they were one. F. Reagan statedthat the decedent was an employee of National Resurfacing at thetime of the incident. F. Reagan's statement was supported by aW2 form for the decedent which was from National Resurfacing.

Hüls manufactures a concrete waterproofing product calledChem-Trete BSM 20. Glenrock sells construction productsincluding Chem-Trete BSM 20. Glenrock sold Chem-Trete BSM 20 toNational Restoration and National Resurfacing for the Days Innproject.

The decedent worked as a laborer at the Days Inn project.

On July 20, 1995, decedent was fatally injured when he attemptedto saw the lid off a 55-gallon drum that contained residue ofChem-Trete BSM 20 and the drum exploded.

Deposition testimony reveals that Nicholas LaFleur, thedecedent's direct supervisor, had instructed the decedent to loada Dumpster with debris by use of a chute from the second floorwhich led to the Dumpster. Several hours later, decedent's co-worker, Gerald McLin, spoke with decedent and as McLin turned towalk away, he saw decedent pick up a saw. When McLin wasapproximately eight feet away from Gray, McLin heard the saw cutinto a drum and then heard a loud explosion. McLin turned aroundand saw flames.

Chem-Trete BSM 20 consists in relevant part of 70% ethanoland 10% methanol. Hüls attached a label to every container ofChem-Trete BSM 20 which displays a large red diamond with a flameinside and reads: "FLAMMABLE LIQUID." The label also containsthe following additional warnings:

"WARNING!

* * *

FLAMMABLE LIQUID AND VAPOR.

* * *

KEEP AWAY FROM HEAT, SPARKS, AND FLAME.

* * *

Since emptied containers retain product residue, followlabel warnings even after container is emptied.

Before Using This Chemical, Read Material Safety DataSheet."

F. Reagan stated that he informed the decedent in July 1995that the material safety data sheet (MSDS) for the Chem-Trete BSM20 was in the "job box" and that the decedent could read it anytime. LeFleur confirmed that the MSDS for the Chem-Trete BSM20 was in the job box and that the decedent could read itanytime. T. Reagan also confirmed that the MSDS was in the jobbox.

After the explosion, photographs were taken of the drum thatthe decedent had cut with a saw. The pictures revealed that sometext was missing from the label, but that the warnings, "Sinceemptied containers contain product residue, follow label warningseven when container is emptied ***," and "KEEP AWAY FROM HEAT,SPARKS, AND FLAME," appear on the label, along with the large,red diamond with the warning "FLAMMABLE LIQUID."

On October 5, 1995, Gray filed a worker's compensation claim (Application for adjustment No. 95 WC 57531), with the State ofIllinois Industrial Commission against "National Resurfacing Inc.d/b/a National Restoration Systems" for damages associated withdecedent's fatal accident.

On June 25, 1997, Gray filed suit against: (1) "NationalRestoration Systems, Inc., f/k/a National Resurfacing Inc.," fornegligence, (2) Hüls for negligence and strict liability, and (3)American States Insurance Co., Weidner & McAuliffe, Ltd., andRichard J. Leamy, Jr., for spoliation of evidence.

On July 21, 1997, Gray filed her first amended complaint. Once again the complaint named "National Restoration Systems,Inc., f/k/a National Resurfacing Inc.," as a defendant. Furthermore, Gray added seven additional defendants, whichincluded Glenrock for strict liability and negligence.

On September 30, 1997, "National Restoration Systems, Inc.,f/k/a National Resurfacing Inc. (collectively, 'National'),"filed a motion to dismiss Gray's first amended complaint pursuantto section 2-619 of the Illinois Code of Civil Procedure (735ILCS 5/2-619(a)(9) (West 2002)) based on the exclusive remedyprovision of the Workers' Compensation Act (820 ILCS 305/5(a)(West 2002))(the Act), which states:

"No common law or statutory right to recoverdamages from the employer *** for injury or deathsustained by any employee while engaged in the line ofhis duty as such employee, other than the compensationherein provided, is available to any employee who iscovered by the provisions of this Act, to any onewholly or partially dependent upon him, the legalrepresentatives of his estate, or any one otherwiseentitled to recover damages for such injury."

On December 22, 1997, the trial court denied NationalRestoration's motion without prejudice. The trial court advisedthe parties that if Gray collected any money from NationalRestoration in the worker's compensation proceeding, her commonlaw action would be dismissed.

Gray's claims against Richard J. Leamy, Jr., were settledand dismissed on April 2, 1999. On April 12, 1999, Gray's claimsagainst American States Insurance Co. and Weidner & McAuliffe,Ltd., were settled and dismissed.

On February 14, 2000, Gray filed a second amended complaintagainst "National Restoration Systems, Inc., an Illinoiscorporation," Hüls and Glenrock. In the complaint, Gray allegedthat Hüls and Glenrock negligently failed to incorporate labelingon Chem-Trete BSM 20 drums that would warn users of: (1) itsexplosive potential in violation of 29 CFR