February 09, 2001

	NO. 4-00-0041

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

ANN BOLDINI, Individually and as 

Special Administratrix of the Estate 

of SAMUEL BOLDINI, Deceased,

		Plaintiffs-Appellants,

		v.

OWENS CORNING; METROPOLITAN LIFE

INSURANCE COMPANY; OWENS-ILLINOIS,

INC.; PITTSBURGH CORNING CORPORATION;

RAYMARK INDUSTRIES, INC.,

		Defendants,

		and

SPRINKMANN SONS CORPORATION OF

ILLINOIS,

		Defendant-Appellee,

		and

RAPID-AMERICAN CORPORATION, UNITED

STATES GYPSUM COMPANY, and FIBREBOARD

CORPORATION,

		Defendants.	)

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)		Appeal from

	Circuit Court of 

	Macon County

	No. 96L137

	Honorable

	James A. Hendrian,

	Judge Presiding.

_________________________________________________________________

		JUSTICE KNECHT delivered the opinion of the court:

		In September 1996, plaintiffs filed a six-count com

plaint against several companies, including Sprinkmann Sons

Corporation of Illinois (Sprinkmann), for injuries resulting from

Samuel Boldini's exposure to asbestos-containing materials at his

place of employment, Archer Daniels Midland Company (ADM) in

Decatur, Illinois.  In February 1999, Sprinkmann filed a motion

for summary judgment based solely on the Illinois construction

statute of repose, section 13-214(b) of the Code of Civil Proce

dure (Code) (735 ILCS 5/13-214(b) (West 1996)).  After a hearing on the motion in October 1999, the trial court issued a written

memorandum opinion and order finding plaintiffs' cause of action was time-barred by section 13-214(b) and granting Sprinkmann's

motion for summary judgment.  In December 1999, plaintiffs filed

a motion to reconsider, which the trial court denied.  Plaintiffs

appeal, arguing the trial court erred in granting summary judg

ment because evidence of sales by Sprinkmann to ADM does exist. 

We reverse and remand.

	I. BACKGROUND

		In September 1996, Samuel Boldini and Ann Boldini, his wife, filed a six-count complaint against several companies,

including Sprinkmann, for injuries allegedly caused by Samuel's

exposure to asbestos-containing materials.  Plaintiffs' claims

were based upon Sprinkmann's sale and distribution of asbestos-

containing materials to Samuel's place of employment, the Decatur

ADM plant.  Samuel worked in the Extraction B Building during his

39 years at the Decatur ADM plant.  Samuel died in October 1996

of mesothelioma, and Ann Boldini was appointed special

administratrix of his estate.  

		During the period of decedent's employment with ADM, Sprinkmann was an authorized distributor of Owens-Corning prod

ucts.  According to Susan Stockman, the secretary-treasurer of

Sprinkmann, Sprinkmann has been in the business of installing

insulation on a labor-material basis since 1945, has never been a

manufacturer of asbestos-containing products, and ceased install

ing insulation containing asbestos between 1971 and 1975.  

		In their complaint, plaintiffs alleged product liabil ity, willful and wanton conduct, and negligence.  Plaintiffs claim decedent was exposed to asbestos-containing products

distributed or sold by Sprinkmann while he was employed by ADM. 

Plaintiffs did not make any claims based on Sprinkmann's instal

lation of asbestos-containing products at ADM.  In response to

plaintiffs' allegations, Sprinkmann argued it installed asbestos-

containing products at ADM on a labor-material basis and no

evidence showed Sprinkmann ever acted as a supplier of asbestos-

containing materials for the Decatur ADM plant. 

		In February 1999, Sprinkmann filed a motion for summary 

judgment arguing plaintiffs' cause of action was barred by

section 13-214(b) of the Code.  In July 1999, plaintiffs filed a

response to Sprinkmann's motion for summary judgment, attaching

testimony and deposition transcripts as well as Owens-Corning

invoices.  In their response, plaintiffs argued (1) they were

seeking redress for Sprinkmann's role as a seller and distributor

and (2) evidence existed of sales and distribution to ADM.  

		In September 1999, the trial court held a hearing on

the motion for summary judgment.  In October 1999, the trial

court issued a written memorandum opinion and order finding

plaintiffs' cause of action time-barred and granting Sprinkmann's

motion for summary judgment.  

		In December 1999, plaintiffs filed a motion to recon

sider, attaching several exhibits, including the evidence deposi

tion of Ellis Carlton and the affidavit of Russell Wolstenholme. 

The trial court held a hearing on plaintiffs' motion the same

month and denied it.  The trial court found no just reason for delaying enforcement or appeal pursuant to Supreme Court Rule

304(a) (155 Ill. 2d R. 304(a)).  This appeal followed.

	II. ANALYSIS

		Summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no genuine

issue of material fact exists and the movant is entitled to

judgment as a matter of law.  735 ILCS 5/2-1005(c) (West 1998);

Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 413, 681 N.E.2d 156, 158 (1997).  In ruling on a motion for summary judgment, the trial court must view all evidence in the light

most favorable to the nonmovant.  Malone v. American Cyanamid Co., 271 Ill. App. 3d 843, 845, 649 N.E.2d 493, 495 (1995).  We review grants of summary judgment de novo.  Malone, 271 Ill. App. 3d at 845, 649 N.E.2d at 495.

	A. Illinois Construction Statute of Repose

		Sprinkmann's motion for summary judgment was based

solely on the contention plaintiffs' action is time-barred under

section 13-214(b), which provides, in relevant part:

			"No action based upon tort, contract[,]

or otherwise may be brought against any per

son for an act or omission of such person in

the design, planning, supervision, observa

tion[,] or management of construction, or

construction of an improvement to real prop

erty after 10 years have elapsed from the

time of such act or omission."  735 ILCS 5/13-214(b) (West 1996).

Plaintiffs admit if this provision applies, their action is time-

barred.

		For section 13-214(b) of the Code to apply to

Sprinkmann, (1) the product at issue must constitute an improve

ment to real property, and (2) Sprinkmann's activity must fall

within the activities enumerated in the statute.  Adcock v. Montgomery Elevator Co., 274 Ill. App. 3d 519, 522, 654 N.E.2d 631, 633 (1995).  

			1. Improvement to Real Property

		The Supreme Court of Illinois set forth four criteria

as relevant in determining whether a product is an improvement to

real property.  See St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d 1, 4-5, 605 N.E.2d 555, 556 (1992).  The trial court

applied the four criteria and concluded the insulation was an

improvement to real property.  In their appellant brief, plain

tiffs do not argue against the trial court's conclusion; there

fore, this issue is waived, i.e., forfeited, pursuant to Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)).

			2. Activity Analysis

		We next consider whether Sprinkmann's activities fall

within the activities enumerated in section 13-214(b).  Plain

tiffs seek to hold Sprinkmann responsible for the sale and

distribution of asbestos-containing products, not for the instal

lation of such products.  On the other hand, Sprinkmann claims

its sales of asbestos-containing material were in conjunction with its installation of the product under a labor-material

contract.  In ruling any sale by Sprinkmann to ADM was incidental

to installation, and thus protected by section 13-214(b), the

trial court found the First District cases of Risch v. Paul J. Krez Co., 287 Ill. App. 3d 194, 678 N.E.2d 44 (1997), and McIntosh v. A & M Insulation Co., 244 Ill. App. 3d 247, 614 N.E.2d 203 (1993), controlling. 

		The Supreme Court of Illinois has held section 13-

214(b) "does not exclude persons based upon their status," but,

rather, "protects, on its face, anyone who engages in the enumer

ated activities."  (Emphasis omitted.)  People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261, 500 N.E.2d 34, 37 (1986).  Therefore, the activities of Sprinkmann

must be analyzed.

		In analyzing whether Sprinkmann's activities are

protected by section 13-214(b), the First District in Adcock adopted the "activity-analysis test" utilized by the federal

courts.  Adcock, 274 Ill. App. 3d at 523, 654 N.E.2d at 634.  Under this test, a manufacturer is afforded protection when it substantially participates in significant activities in install

ing or incorporating the product at the jobsite or custom designs

the product for a specific jobsite.  Adcock, 274 Ill. App. 3d at 523, 654 N.E.2d at 634.  While the defendant in Adcock was a manufacturer, this test has also been applied to a defendant who

engages in sales and distribution.  See Krueger v. A.P. Green Refractories Co., 283 Ill. App. 3d 300, 304, 669 N.E.2d 947, 950 (1996).  

		Several cases have held the installation of a product

is an activity within the scope of section 13-214(b).  See

Krueger, 283 Ill. App. 3d at 304, 669 N.E.2d at 950; Risch, 287 Ill. App. 3d at 197, 678 N.E.2d at 46.  However, case law differs

on the application of section 13-214(b) to installers who also

sell and/or distribute products.

		The First and Third Districts apply section 13-214(b)

differently to companies engaging in sales, distribution, and

installation activities.  The First District's approach finds

claims arising from sales incident to installation fall within

section 13-214(b).  See McIntosh, 244 Ill. App. 3d at 250-51, 614 N.E.2d at 205; Risch, 287 Ill. App. 3d at 198, 678 N.E.2d at 46- 47.  Conversely, the Third District's approach finds claims arising from a sale do not fall under section 13-214(b) even if

they are incident to installation.  See Krueger, 283 Ill. App. 3d at 304, 669 N.E.2d at 950; MBA Enterprises, Inc. v. Northern Illinois Gas Co., 307 Ill. App. 3d 285, 289, 717 N.E.2d 849, 852 (1999).	

		In McIntosh, 244 Ill. App. 3d at 250-51, 614 N.E.2d at 205, the plaintiff by complaint alleged the defendants sold,

distributed, and installed asbestos-containing products at the

jobsite, but the plaintiff did not plead any facts showing the

defendants sold or distributed the products.  In affirming the trial court's order granting summary judgment in favor of the

defendants based on section 13-214(b) of the Code, the First District stated plaintiff failed to plead facts demonstrating

defendants acted as anything other than installers of the

asbestos-containing materials.  McIntosh, 244 Ill. App. 3d at 251, 614 N.E.2d at 205.

		The next case is Risch, 287 Ill. App. 3d at 198, 678 N.E.2d at 46, in which the First District applied its earlier decision in McIntosh.  Because McIntosh required the plaintiffs to plead facts demonstrating defendants' selling activities were

more than incidental to installation, the court looked for

evidence of defendants' engagement in district sales activities. 

Risch, 287 Ill. App. 3d at 198, 678 N.E.2d at 46-47.  The court found the evidence demonstrated the defendant was an insulation

installer who worked on a labor-material basis only and, there

fore, the defendant's activities came within section 13-214(b). 

Risch, 287 Ill. App. 3d at 198, 678 N.E.2d at 47.  Evidence of the defendant paying taxes, which are typically paid by persons

reselling goods, was insufficient to demonstrate distinct sales

activities.  Risch, 287 Ill. App. 3d at 198, 678 N.E.2d at 47.  

		In the Krueger opinion, the Third District declared "section 13-214(b) does not apply to those claims that arise out

of the sale of *** asbestos products."  Krueger, 283 Ill. App. 3d at 302, 669 N.E.2d at 949.  Later in the opinion, the court announced section 13-214(b) "only applies to claims arising out

of the construction-related activities undertaken by the manufac

turer or seller" and then summarily stated "section 13-214(b)

does not apply to [the plaintiff's] claims that arise out of Sprinkmann's sale of the asbestos products."  Krueger, 283 Ill. App. 3d at 304, 669 N.E.2d at 950.  In making the aforementioned

declaration, the Third District did not distinguish between sales

incident to installation and direct sales.  Justice Slater, in

his special concurrence, stated section 13-214(b) "does not apply

to the sale or distribution of asbestos products, however, even

where those products are installed by the seller or distributor

as an improvement to real property."  Krueger, 283 Ill. App. 3d at 307, 669 N.E.2d at 952 (Slater, J., specially concurring). 

		The Third District reiterated its interpretation of

section 13-214(b) in a nonasbestos case, MBA, 307 Ill. App. 3d at 289, 717 N.E.2d at 852 (dealing with gas pipes).  In the MBA case, the Third District stated, "acts unrelated to the initial

construction of the improvement, such as the sale and distribu

tion of improvements to real property, are not protected by

[section 13-214(b)]."  MBA, 307 Ill. App. 3d at 287, 717 N.E.2d at 851.  Furthermore, the court, explaining its decision in

Krueger, stated section 13-214(b) applies to the activity of installing asbestos but not to related sales and distribution of

asbestos.  MBA, 307 Ill. App. 3d at 288, 717 N.E.2d at 852.

		Under the Third District's approach, a sale is a sale and always falls outside section 13-214(b).  This rule is easier

to apply than the First District's rule, in which a sale may not

be a sale if it is incident to installation.  The First Dis

trict's approach requires a stringent analysis of the facts to

determine if a sale exists independent of the sales associated with a labor contract.  

		We agree with the Third District:  section 13-214(b)

applies to the activity of installing asbestos-containing materi

als but not to the related sales and distribution of the

asbestos-containing materials.  However, we emphasize this rule

applies only to claims dealing with asbestos.  Sprinkmann admits

it sold asbestos-containing products to ADM on a labor-material

basis.  Therefore, plaintiffs' claims are not barred by section

13-214(b) of the Code, and the trial court's grant of summary

judgment in favor of Sprinkmann was improper.

		We also find evidence indicating Sprinkmann made direct

sales of asbestos-containing materials to ADM.  In making this

determination, we did not consider the affidavit of Russell

Wolstenholme and the evidence deposition of Ellis Carlton because

the documents were not part of the record at the time the trial

court ruled on the motion for summary judgment; we considered all

other evidence in the record at the time the trial court ruled.

		The evidence of direct sales included the trial testi

mony of Ellis Carlton in Spain v. Owens-Corning Corp., No. 88-L-

97 (Cir. Ct. Macon Co.).  Ellis Carlton, an employee of

Sprinkmann who handled Sprinkmann's sales from 1963 to 1994,

explained the dichotomy between sales relating to a labor-mate

rial contract and those sales made directly to customers for

their own use.  He further described how customers would order

materials from Sprinkmann for their use and how those materials

ordered would get to the customer.

		Furthermore, according to Ellis Carlton, Sprinkmann had

maintained records of direct sales to customers starting with

those sales made in 1955.  After Sprinkmann was involved in an

asbestos case in the early 1980s, Ellis Carlton was ordered to

shred all records older than 1972.  Ironically, Sprinkmann ceased

using and selling asbestos-containing materials starting in 1971. 

This court does not look favorably upon the deliberate destruc

tion of pertinent records.  This court has declared "'[a]ll

reasonable presumptions will be indulged against a party who

deliberately destroys evidence.'"  Kearney v. Brakegate, Ltd., 263 Ill. App. 3d 355, 363, 636 N.E.2d 117, 122-23 (1994), quoting

Haynes v. Coca Cola Bottling Co., 39 Ill. App. 3d 39, 46, 350 N.E.2d 20, 26 (1976).

		The record also contained Owens-Corning invoices

listing Sprinkmann as the company receiving the materials.  Some

of the invoices indicate a sale of materials by Owens-Corning to

Sprinkmann, with ADM listed under Sprinkmann's address and above

the payment terms.  In viewing the invoices in the light most

favorable to plaintiffs, the invoices are also evidence of direct

sales.  

	B. Proximate Cause

		For the first time on appeal, Sprinkmann alleges no

evidence shows products it sold and distributed were the proxi

mate cause of decedent's injury.  Plaintiffs argue they did not

have an opportunity to refute this argument in the trial court. 

Since Sprinkmann did not raise this issue in the trial court, we decline to entertain this issue on appeal.  

	III. CONCLUSION

		Because of our resolution of the issues, we need not

address the propriety of plaintiffs' reply brief.  Accordingly,

we reverse the judgment of the circuit court of Macon County

granting summary judgment in favor of Sprinkmann and remand for

further proceedings consistent with this opinion.

		Reversed and remanded.

		KNECHT, GARMAN and COOKLK, jjJJ., concur.J., with 

	STATE OF ILLINOIS

	APPELLATE COURT

	FOURTH DISTRICT

	INTER-OFFICE MEMORANDUM

TO:  	Judge Cook			DATE:  December 5, 2000

	Judge Garman

						FROM:  Judge Knecht

						RE:	Boldini v. Sprinkmann Sons 

									No. 4-00-0041, 9/13 Oral

							KNECHT, Garman, Cook

	Ms. Anders has prepared an excellent draft opinion consis

tent with our comments and views after oral argument.  Please

advise.

Enc.

cc:	Judge Steigmann

	Judge McCullough

	Judge Myerscough

	Clerk