Martin v. a & M INSULATION CO.

566 N.E.2d 375, 207 Ill. App. 3d 706, 152 Ill. Dec. 688, 1990 Ill. App. LEXIS 1896
CourtAppellate Court of Illinois
DecidedDecember 20, 1990
Docket1-89-0843
StatusPublished
Cited by7 cases

This text of 566 N.E.2d 375 (Martin v. a & M INSULATION CO.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. a & M INSULATION CO., 566 N.E.2d 375, 207 Ill. App. 3d 706, 152 Ill. Dec. 688, 1990 Ill. App. LEXIS 1896 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff appeals from the trial court’s entry of summary judgment in favor of several asbestos manufacturers and distributors (hereinafter collectively referred to as defendants) with respect to plaintiff’s claim for personal injuries arising out of plaintiff’s development of asbestosis. The trial court entered summary judgment for defendants on the ground that plaintiff’s suit was barred by the applicable two-year statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202.) Because the record reveals a genuine issue of material fact with respect to whether plaintiff knew or reasonably should have known, more than two years prior to the filing of his suit, that he suffered a lung disorder caused by his exposure to asbestos, we reverse and remand.

The parties’ pleadings, written interrogatories, and deposition testimony reveal the following pertinent facts. Plaintiff worked as an insulator between 1947 and 1984 and was exposed to various asbestos-containing products during this time. With regard to plaintiff’s medical history, the record indicates that plaintiff was seen by a physician in June 1970, who noted certain irregularities in plaintiff’s lungs but marked the “significance” of these symptoms as “undetermined.” Approximately 21/z years later, in January 1973, this physician again saw plaintiff and noted that plaintiff had symptoms indicating either tuberculosis or histoplasmosis. A second physician saw plaintiff in August 1976 and noted that plaintiff had a normal chest X ray.

Plaintiff submitted to an employment examination in March 1978. With respect to this examination, plaintiff was sent a letter in which he was advised that he had chronic nonspecific pulmonary fibrotic change causing significantly decreased pulmonary function. Plaintiff was seen by his family physician in March 1978 following the employment examination. According to the family physician’s records, plaintiff told the doctor that he had a cold, which may have affected the outcome of the pulmonary function tests. Plaintiff also told the physician that he was still coughing, and the physician noted that plaintiff showed “some fine rales in the lung base on inspiration.” Plaintiff was told that if his symptoms became worse, he was to return for further examination.

Later, in October 1978, a chest X ray taken during hospitalization for an unrelated ailment indicated that plaintiff’s lungs were normal. When plaintiff saw his family physician following hospitalization, the physician noted on his medical records that plaintiff had a viral upper respiratory tract infection and was coughing, and that his lungs were essentially clear. The physician also noted that plaintiff had pulmonary fibrosis. At his deposition, plaintiff recalled that he had seen his family physician in October 1978, and that the physician had discussed with him the results of the March 1978 employment examination. Plaintiff remembered that his family physician had informed plaintiff that he had “bad lungs” and should change jobs so that plaintiffs “lungs don’t get worse.” Plaintiff gave the following deposition testimony during examination by defense counsel.

“Q. What did [the family physician] tell you about why you should quit?

A. So it doesn’t get worse.

Q. So what is ‘it’?

A. Whatever it is. My lungs don’t get worse. I don’t know which way he meant it. ***

Q. [The family physician] told you at that time you had a lung problem from your work?

A. Right. He didn’t say from the work. He just says, ‘You have a lung problem.’ He must have meant from work, because he says ‘You have worked with asbestos. It must be from work,’ is what he told me.

Q. So at that time in October of 1978, *** you were aware that you had a lung problem, and you were aware that a doctor thought that you had it from work, is that right?

A. That’s right, up until that time I never figured anything about my lungs. I mean, with asbestos, I didn’t know that it was that bad. And I never had trouble. With my lungs that bad, I mean. So whether the age took care of making me notice it or what, I couldn’t tell you.

Q. Did [the family physician] describe your lung problem with any kind of word?
A. Word, no, he just said, ‘You have bad lungs,’ that’s all.”

The records of the plaintiff’s family physician indicated that plaintiff was again reported as having bronchitis in December 1978 and January 1979, and that plaintiff had throat irritation, nasal drainage, and a cough. Similar symptoms were apparent during physical examinations by the family physician in December 1979, when plaintiff was diagnosed as having bronchitis. However, when plaintiff had another chest X ray taken in December 1979, the results were interpreted as normal.

Thereafter, plaintiff saw his family physician in January 1980. Plaintiff testified at his deposition that, during this examination by the family physician in January 1980, the doctor again advised plaintiff that he should change jobs. When asked during the deposition if plaintiff “understood that when he told you to change work, that meant that your lung problems were due to your work, is that right?” plaintiff responded, “Right, that’s as I understood it.”

In January 1982, plaintiff submitted to another employment examination, including a chest X ray. This examination showed demonstrable interstitial fibrosis in plaintiff’s lungs. However, plaintiff’s X ray and pulmonary functions tests were considered normal. Thereafter, a chest X ray taken in September 1983 revealed “exaggeration in both hilar areas.”

Plaintiff was advised that he had asbestosis on December 12, 1984, when he underwent an evaluation at Cook County Hospital’s department of occupational medicine. Plaintiff filed suit against defendants less than a year later, on May 8, 1985.

Following briefing and argument, the trial court entered summary judgment in favor of defendants. Plaintiff’s timely appeal followed.

The sole question presented on appeal is whether the record establishes, as a matter of law, that plaintiff knew or should have known, from the comments made to plaintiff by his family physician in October 1978 and January 1980, that he had a lung condition caused by his work exposure to asbestos.

The Illinois Supreme Court has held the discovery rule applicable to the two-year statute of limitations regarding tort claims for asbestos-related injuries. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864.) Under the discovery rule, the two-year statute of limitations begins to run when a plaintiff “knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.” (85 Ill.

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566 N.E.2d 375, 207 Ill. App. 3d 706, 152 Ill. Dec. 688, 1990 Ill. App. LEXIS 1896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-a-m-insulation-co-illappct-1990.