MATTER OF JOHNS-MANVILLE ASBESTOSIS CASES
516 F.Supp. 375 (1981)
United States District Court, N. D. Illinois, E. D.
May 15, 1981.
Under common law principles no action would lie against a dissolved corporation. Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co.,629 F.2d 1183, 1185 (7th Cir. 1980). Because both Hooker and Cassiar filed their actions against North American after its dissolution, their claims are viable only if permitted by Section 94. With a single exception it is not disputed that all the claims against North American were filed within the statutory two-year period.2 But North American argues that Section 94 only applies to causes of action that accrue before a corporation is dissolved. Under Illinois law an action for indemnification does not accrue until after the indemnitee (Hooker) has been held liable or has settled. See, Forty Eight Insulators v. Johns-Manville Products,472 F.Supp. 385, 393 (N.D.Ill.1979). Because Hooker has yet to be found liable, or agree to a settlement, in any of the Asbestosis Cases, its action for indemnity cannot have accrued within two years after North American's dissolution. North American thus contends that because Hooker's claims are not covered by the provisions of Section 94 Hooker cannot sue the now-dissolved corporation. Hooker concedes that under Illinois law actions for indemnity do not accrue until after the indemnitee's liability has been established. But it points out that Section 94 permits an action based on "any right or claim existing" prior to dissolution. Hooker argues that while its right to indemnification has yet to "accrue," that right was born (in statutory terms, became a "right ... existing") as soon as the tort was committed that exposed Hooker to liability.
Both Illinois case law and the developmental history of Section 94 strongly support North American's and not Hooker's position. In Singer & Talcott Stone Co. v. Hutchinson, 176 Ill. 48, 51 N.E. 622 (1898) the Illinois Supreme Court examined a predecessor statute to Section 94 that stated a corporate dissolution:
shall not take away or impair any remedy given against such corporation, its directors, or shareholders, for any liability incurred prior to such dissolution if suit thereon is brought and service of process had within two years after the date of such dissolution.
It defined the statutory purpose (176 Ill. at 52, 51 N.E. 622):
Section 12 was enacted for the benefit of those whose rights had accrued against the corporation previous to its dissolution...
True enough, the statute considered in Singer & Talcott preserved a remedy only for "liabilities incurred" before dissolution. It did not contain the "right or claim existing" language now found in Section 94.
But Hooker can derive no comfort from that fact, given the manner in which that language entered the law.
1. This opinion is applicable to and entered in the following cases: Hooker's third party complaints in McDaniel (77 C 3534) and Aiken (79 C 1382); Hooker's crossclaims in Baker (80 C 11), Biga (80 C 10), Bruce (79 C 4965), V. Cole (79 C 5340), Fernandez (80 C 2629), Lewis (79 C 5335), Maglio (79 C 4951), Ostrowski (80 C 1195), Pitts (79 C 5338), Wells (79 C 5336); and Cassiar's third party complaints in Aiken (79 C 1382) and Guillen (78 C 866). Cassiar had in addition filed a third party complaint against North American in Lonergan (78 C 2562), but this Court has since granted summary judgment for Cassiar in that case. If any of the parties finds this opinion either inapplicable to any of the listed cases or applicable to other cases, appropriate notices should be served on the Court and opposing counsel.
2. North American contends that the crossclaim in Fernandez (80 C 2629) was not filed within two years after its dissolution. Although Hooker disputes that assertion, given this Court's interpretation of Section 94 it is not necessary to address the issue.
3. Hooker's statutory interpretation arguments, predicated on the need to give every word in a statute meaning and the presumption that legislators "know the meanings of words and the rules of grammar," thus actually support the position stated in this opinion. As stated in the text, the operative principle is an application of reddendo singula singulis. 2A C. Sands, Sutherland's Statutes and Statutory Construction § 47.26 (4th ed. 1973).
4. Hooker's own references to the term "right" in its memorandum again support the analysis in this opinion rather than its own arguments. Hooker cites Lasko v. Meier, 394 Ill. 71, 75, 67 N.E.2d 162, 165 (1946) for the proposition that "a right is a component part of a cause of action," and In re Wynn's Estate, 311 Ill.App. 190, 196, 35 N.E.2d 702, 705 (2d Dist. 1941) for the proposition that "a right is a power or privilege to which one is entitled by law." It seeks to argue that its "right," not North American's, existed at the time of dissolution — a position that does not comport with either the statutory framework or the normal construction of the statutory language.