Stinnes Corp. v. Kerr-McGee Coal Corp., No. 5-98-0105

5th District, 14 December 1999

PRESIDING JUSTICE GOLDENHERSH delivered the opinion of the court:

Stinnes Corporation, third-party plaintiff (Stinnes), appeals from an order of the circuit court of Williamson County dismissing its action for spoliation of evidence against Kerr-McGee Coal Corporation, third-party defendant (Kerr-McGee). The underlying products liability action was brought by Robert W. Wilkas and James Benge against Stinnes' subsidiary, SRE Carlsbad, Inc. (SRE Carlsbad), for personal injuries arising out of a coal-mining vehicle accident that occurred at a mine owned by Wilkas' and Benge's employer, Kerr-McGee. Wilkas and Benge take no part in this appeal. SRE Carlsbad dissolved on December 29, 1989, prior to the Wilkas and Benge accident. Stinnes was substituted as the real party in interest. Accordingly, SRE Carlsbad also takes no part in this appeal. The issue raised herein is whether the trial court improperly dismissed Stinnes' complaint with prejudice pursuant to Kerr-McGee's motion attacking Stinnes' complaint. Stinnes contends, and we agree, that it has properly stated a claim against Kerr-McGee for spoliation of evidence based upon traditional negligence principles. We reverse and remand.

BACKGROUND

On September 9, 1991, Robert Wilkas and James Benge originally filed a products liability action in Washington County against defendants A.L. Lee Corporation (A.L. Lee), SRE Carlsbad, Inc. (successor to MEMCO, Inc.), and Dana Corporation, doing business as Spicer Heavy Axle Division, for injuries received in a July 18, 1990, work accident at Kerr-McGee's Galatia mine when the mantrip (an underground mine vehicle) in which they were riding overturned. Wilkas and Benge were both employees of Kerr-McGee at the time of the accident. The workers' complaint alleged that A.L. Lee and SRE Carlsbad designed, manufactured, and sold the mantrip in which they were riding at the time of the accident. The actual manufacturer of the mantrip was MEMCO, Inc., the predecessor to SRE Carlsbad. MEMCO, Inc., changed its name to SRE Carlsbad after selling its assets, including its name, to A.L. Lee in 1985.

On October 15, 1991, those defendants filed a petition for removal to the United States District Court for the Southern District of Illinois. After removal to the district court, SRE Carlsbad filed its third-party complaint against Kerr-McGee, seeking contribution based upon Kerr-McGee's alleged negligence in its supervision, care, and maintenance of the mantrip involved in the July 18, 1990, accident. On May 6, 1992, SRE Carlsbad examined the mantrip and discovered that damaged parts were missing. On July 14, 1993, SRE Carlsbad filed a motion with the district court for leave to amend its third-party complaint against Kerr-McGee to add a claim for spoliation of evidence for Kerr-McGee's alleged failure to preserve parts from the mantrip involved in the Wilkas-and-Benge work accident. On August 4, 1993, the district court denied SRE Carlsbad's motion for leave to amend and later denied a motion to reconsider.

On October 8, 1993, Wilkas and Benge settled with all defendants. The district court found Wilkas' and Benge's settlement with Kerr-McGee to be in good faith, and it dismissed SRE Carlsbad's contribution claims with prejudice. SRE Carlsbad, Inc., v. Kerr-McGee Coal Corp., No. 91-CV-4232-JPG (S.D. Ill. October 8, 1993). On October 13, 1993, SRE Carlsbad filed a notice of appeal to the Seventh Circuit Court of Appeals, challenging the district court's denial of the motion for leave to amend the third-party complaint to add a claim for negligent spoliation of evidence. While awaiting a determination, our supreme court decided the case of Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). In that case, our supreme court refused to recognize a new cause of action for negligent spoliation of evidence, finding instead that a claim for negligent spoliation could be made under existing negligence law. Accordingly, the Seventh Circuit Court of Appeals reversed the district court and remanded with directions to reconsider in light of Boyd. SRE Carlsbad, Inc. v. Kerr-McGee Coal Corp., No. 93-3498 (7th Cir. May 25, 1995) (unpublished order).

After remand, SRE Carlsbad sought to add another party, its parent corporation, Stinnes, as a real party in interest because of an indemnification agreement that required Stinnes to cover claims against SRE Carlsbad. Stinnes alleged that its payments to Wilkas and Benge were made on behalf of both itself and SRE Carlsbad. The district court concluded that Stinnes was a real party in interest, and the court also found that SRE Carlsbad lacked capacity to maintain a negligent spoliation claim against Kerr-McGee because SRE Carlsbad was voluntarily dissolved as a corporation on December 29, 1989, prior to the work accident upon which the underlying litigation was based.

On June 11, 1996, Stinnes filed a motion for leave to file its fifth amended complaint for crossclaim against Kerr-McGee, alleging negligent spoliation of evidence. On June 12, 1996, the district court granted leave to Stinnes to file its fifth amended complaint. At the same time, the district court declined to exercise additional diversity jurisdiction over the case because diversity did not exist between Stinnes and Kerr-McGee, both Delaware corporations. Accordingly, the case was remanded to the circuit court of Williamson County.

On August 30, 1996, Kerr-McGee filed a special and limited appearance, contending that it had never been served with summons by Stinnes and, therefore, the trial court had no personal jurisdiction over Kerr-McGee. The trial court denied Kerr-McGee's motion and ordered it to file a pleading. On December 12, 1996, in lieu of its answer, Kerr-McGee filed a motion attacking Stinnes' fifth amended complaint on numerous grounds. The motion failed to state under which rule it was brought and was not supported by affidavit, deposition, testimony, or any other such evidentiary material. On December 27, 1996, Stinnes filed its response. On November 25, 1997, the trial court ruled on Kerr-McGee's motion by way of letter, which stated, "[Kerr-McGee's] Motion to Dismiss should be granted because Defendant did not owe a duty to [Stinnes] to preserve evidence." On November 26, 1997, Stinnes sent a letter to the trial court, asking it to reconsider its ruling. On January 28, 1998, the trial court entered an order dismissing Stinnes' complaint with prejudice. Stinnes now appeals.

ANALYSIS

The issue we are asked to address is whether the trial court improperly dismissed Stinnes' complaint with prejudice pursuant to Kerr-McGee's motion attacking Stinnes' complaint. Stinnes contends it made a proper claim upon which relief may be granted and argues that the trial court erred in dismissing its complaint. Kerr-McGee responds with numerous arguments as to why the trial court's dismissal should be affirmed. Both parties' contentions are fully addressed in the following analysis.

I. STANDARD OF REVIEW

Kerr-McGee failed to identify whether its motion to dismiss was filed under section 2-615 or section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 1996)). A section 2-615 motion attacks only a complaint's legal sufficiency; its purpose is not to raise affirmative factual defenses but rather to allege defects apparent on the face of the pleadings. See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282, 1289 (1994). Conversely, the primary basis for a section 2-619 motion is to alert the court to affirmative matter that defeats the claim or operates to bar its legal effect. See 735 ILCS 5/2-619 (West 1996); Illinois Graphics Co., 159 Ill. 2d at 485, 639 N.E.2d at 1289-90. According to the letter of section 2-619(a) of the Code, affirmative matter is to be supported by affidavit. See Illinois Graphics Co., 159 Ill. 2d at 485, 639 N.E.2d at 1290. Here, Stinnes contends that the motion must be reviewed only on the basis that it was a section 2-615 motion because Kerr-McGee failed to support its motion. Moreover, Stinnes complains that Kerr-McGee's failure to label this motion as either a section 2-615 or section 2-619 motion prejudiced defendant, making reversal necessary. See Illinois Graphics Co., 159 Ill. 2d at 484, 639 N.E.2d at 1289.

When ruling on a motion to dismiss, either for the failure to state a cause of action (see 735 ILCS 5/2-615 (West 1996)) or because the claims are barred by other affirmative matter that avoids the legal effect or defeats the claim (see 735 ILCS 5/2-619(a)(9) (West 1996)), the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. The trial court should grant the motion only if the plaintiff can prove no set of facts that would support a cause of action on appeal. Review is de novo. See Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1083, 622 N.E.2d 108, 117 (1993); Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51 (1993). After a complete review of the record and arguments submitted by both parties, we conclude that the trial court erred in dismissing plaintiff's fifth amended complaint under either a section 2-615 or a section 2-619 analysis.

II. NEGLIGENT SPOLIATION OF EVIDENCE

The main issue before us is whether Stinnes has stated a claim for spoliation of evidence. Stinnes contends that it has made a proper claim for spoliation of evidence under traditional negligence principles as set forth in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), and that the trial court improperly dismissed its complaint. Kerr-McGee responds that since it owned the mantrip and its component parts, as a matter of law, it had no duty to preserve the evidence for Stinnes' benefit. Moreover, assuming, arguendo, that we find that Kerr-McGee initially preserved the evidence in question, Kerr-McGee contends it did so only because it was mandated to do so by the Federal Mine Safety and Health Act (Act) and federal regulations (see 30 U.S.C.