favor.” Vanasco v. National-Louis University, 137 F.3d 962, 964
(7th Cir. 1998). Nevertheless, the party who bears the burden of
proof on an issue may not rest on the pleadings, but must
affirmatively demonstrate that there is a genuine issue of material
fact that requires trial. Warsco v. Preferred Technical Group, 258
F.3d 557, 563 (7th Cir. 2001). A genuine issue of material fact is
not shown by the mere existence of “some alleged factual dispute
between the parties,” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986), or by “some metaphysical doubt as to the
material facts.” Matsushita Electric Industrial Company v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue of material
fact exists when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.”
Anderson, 477 U.S. at 249. “If the evidence [offered by the
nonmoving party] is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. at 249-50.
DISCUSSION
Plaintiffs’ Common Law Claims

Honeywell contends that Plaintiffs have not established
whether Honeywell’s acts in connection with filling the rooftop
tank were the proximate cause of the TCE contamination in the class
area. Its argument is based primarily on the fact that Plaintiffs
allege independent acts of both Honeywell and Lockformer as

contributing, in indeterminate shares, to the TCE contamination in


their brief. Accordingly, Honeywell’s Motion for Summary Judgment
on Count IV is granted

CONCLUSION

For the reasons set forth above, Defendant Honeywell’s Motion

for Summary Judgment is GRANTED as to Coun DENIED as to
Counts VI, VII, VIII and IX.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

bate: pb


a plaintifé to attribute proper portions of their injury among the
joint tortfeasors to establish proximate cause.

In the present case, Plaintiffs can present evidence that TCE
was regularly spilled onto the ground during Honeywell’s deliveries
at the Lockformer site. Lockformer and Honeywell’s own records
document some of these spills. Plaintiffs’ expert has estimated
the amount of TCE released by Honeywell at approximately 70,000
pounds. Plaintiffs’ expert will also testify as to how the TCE
released around the vent pipe spill area could have moved across
the Lockformer site and migrated via groundwater into the class
area. The exact amount of TCE spilled by Honeywell at the
Lockformer site and Plaintiffs’ models for TCE migration are
vigorously contested by Honeywell. However, Plaintiffs have
sufficient evidence from which a reasonable jury could find
Honeywell’s acts to be a proximate cause of the TCE contamination
in the class area.

Punitive Damages

Honeywell next argues that Plaintiffs have no evidence that
Honeywell authorized or subsequently ratified the methods by which
Honeywell truck drivers filled Lockformer’s rooftop tank so as to
support an award of punitive damages against Honeywell. Under
Illinois law, punitive damages may be awarded when the defendant
acts willfully, or with such gross negligence as to indicate a

wanton disregard. of the rights of others. Kelsay v. Motorola,


the class area. While the Illinois law cited by Honeywell
correctly states the standards for determining proximate cause,
Honeywell’s proximate cause argument ignores the body of Illinois
law dealing with attribution of indivisible harm to multiple
tortfeasors.

The common law doctrine of joint and several liability
provides that when two or more individuals tortiously contribute to
the same, indivisible injury, each individual may be held jointly
and severally liable for the entire injury. See W. Keeton, Prosser
& Keeton on Torts §§ 47, 50-52 (Sth Ed. 1984). So, a tortfeasor
who acts independently and concurrently with another individual to
produce an indivisible injury to a plaintiff may be held jointly
and severally liable for that injury, even though the tortfeasor
does not act in concert with the other individual and shares no
common purpose with them. Woods v. Cole, 181 I1l.2d 512, 517, 693
N.B.2d 333, 336 (Ill. 1998). ZIllinois recognizes that this type of
“independent concurring tortfeasor” is not “held liable for the
entirety of a plaintiff’s injury because he or she is responsible
for the actions of the other individuals who contribute to the
plaintiff’s injury. Rather, an independent, concurring tortfeasor
is held jointly and severally liable because the plaintiff's injury
cannot be divided into separate portions, and because the
tortfeasor fulfills the standard elements of tort liability . i”

Id. Contrary to Honeywell’s contentions, Illinois does not require


put took no action to contact class members or test their well
water for contamination. Contrary to Honeywell’s assertion, there
is evidence of actions by Honeywell which could reasonably be
construed as willful and wanton conduct under the corporate
complicity rule. The question of whether Honeywell’s conduct was
sufficiently willful or wanton to justify the imposition of
punitive damages is for the jury to decide. Cirrincione v.
Johnson, 184 I11.2d 109, 116, 703 N.E.2d 67, 71 (Ill. 1998).
RCRA Liability

Finally, Count IV of Plaintiffs’ Third Amended Complaint
alleges that Honeywell violated RCRA § 6972(a)(1)(A) for its
“failure to comply with the corrective standards, requirements and
regulations effective under RCRA, Subchapter IX and Title 40,
Chapter I, Section 280 of the Code of Federal Regulations.”
Honeywell correctly asserts that it cannot be liable for RCRA
violations predicated on violations of 40 C.F.R. § 280 because that
section only applies to underground storage tanks. Honeywell’s
deliveries were made to the rooftop storage tank. Even if one
accepts the proposition that the rooftop tank and degreaser vault
work as one system, Plaintiffs’ own expert Dr. Ball conceded in his
deposition testimony that the vapor degreaser vault at Lockformer
could not be characterized as an underground storage tank under

40 C.F.R. § 280. Plaintiffs offered no arguments on this issue in


Minace Order Form (06/97)

United States District Court, Northern District of [linois

i Sitting Judge if Other
Harry D. Leinenweber than Assigned Judge
CASE NUMBER 00 C 7164 DATE 5/6/2002
CASE Teresa LeClercq vs. The Lockformer Company, et al
TITLE
[tn the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

DOCKET ENTRY:

Do

a Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
G3) a Answer brief to motion due. . Reply to answer brief due.
(4) oO Ruling/Hearing on setfor_____at
() i Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) o Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) Oi General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).
(10) BH [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendant Honeywell’s
Motion for Summary Judgment is GRANTED as to Count IV and DENIED as to Counts VI, VII, VI and
IX.
(i) [For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
. Number
No notices required sumer of notices
Notices mailed by judge's staff. may 7 2002
| Notified counsel by telephone, date docketed

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Copy to judge/m

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WAP

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Ine., 74 I11.2d 172, 186, 384 N.E.2d 353 (1978). The general
purpose of punitive damages is not only to punish wrongdoers but
also to deter others from engaging in similar conduct. Id. This
is especially true when the defendant’s conduct reflects a flagrant
indifference to the public’s safety. See Moore v. Remington Arms
Co., Inc., 100 Ill. App.3d 1102, 1115, 427 N.E.2d 353, 617 (1981).

Under Illinois’ “corporate complicity” rule, a corporation can
be held liable for punitive damages under the following
circumstances: (1) the principal authorized the doing and the
manner of the act, or (2)the agent was unfit and the principal was
reckless in employing him, or (3) the agent was employed in a
managerial capacity and was acting in the scope of employment, or
(4) the principal or managerial agent of the principal ratified or
approved the act. Mattyasovszky v. West Towns Bus Co., 61 Ill.2d
31, 36, 330 N.B.2d 509, 512 (Ill. 1975).

Plaintiffs have deposition testimony from several Honeywell
drivers establishing that they had informed supervisory personnel
of the TCE spillage occurring during deliveries to the Lockformer
site. Drawing all reasonable inferences in Plaintiffs’ favor, this
testimony suggests that the unsafe delivery methods used by the
Honeywell drivers was ratified by managerial personnel. There is
also evidence suggesting that, after Honeywell’s Site Remediation
Manager visited the Lockformer site in 1992, Honeywell became fully

aware of the threat of TCE contamination to class area well water


spilled directly onto the ground. Plaintiffs contend that the
hazardous substances released from the Lockformer property have
migrated and continue to migrate in liquid and vapor form in a
southerly direction toward Plaintiffs’ homes, contaminating the
soil, groundwater, and domestic water supply in the area.
Plaintiffs further allege that Lockformer has known for many years
of this threat to Plaintiffs and has intentionally and knowingly
failed to notify Plaintiffs of these threats. Plaintiffs allege
that Lockformer’s negligent acts and omissions include improper
handling, storage, use, disposal, investigation and cleanup of the
hazardous substances, and improper maintenance and operation of
equipment using TCE and other hazardous substances. Honeywell now
moves for summary judgment on Count IV (RCRA), Count VI
(negligence), Count VII (private nuisance), Count VIII (trespass),
and Count IX (willful and wanton misconduct).
MOTION FOR SUMMARY JUDGMENT
Standard

Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FEp.R.Civ.P. 56(c). The court
must “review the record in the light most favorable to the

nonmoving party and draw all reasonable inferences in that party’s


private nuisance (Count VII), trespass (Count VIII), and willful

and wanton misconduct (Count IX). Before the Court is Honeywell’s

Motion for Summary Judgment pursuant to FED.R.CiIv.P. 56.
BACKGROUND

Lockformer existed as an Illinois corporation from about
December 6, 1946 until October 2000 when it merged with, and became
a division of, Met-Coil. Since about June 2000, Mestek has owned
or operated Lockformer and Met-Coil. Lockformer operates a
manufacturing facility located at 711 Ogden Avenue in Lisle,
Illinois, and Met-Coil owns property directly adjacent to the
Lockformer property. Plaintiffs own and reside on property located
directly south of the Lockformer and Met-Coil properties.
Plaintiffs rely solely on private wells as the source of water for
their homes.

At all relevant times, Lockformer maintained a metal
fabrication business at the Lisle facility, and as part of that
business Lockformer maintained a metal degreasing operation.
Beginning in 1968 and continuing through at least 1997,
Lockformer’s degreaser utilized chlorinated solvents, including
trichloroethylene (“TCE”). The Baron-Blakeslee Company, and later
Aliied Signal, a predecessor of Honeywell, delivered TCE to the
Lockformer facility from 1969 to 1992. Plaintiffs allege that the
TCE was stored in a rooftop storage tank and that when the rooftop

tank was filled by Honeywell employees, solvents, including TCE,


eye ca UE

wi 4 BILLED
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS MAY on

EASTERN DIVISION 22
dude Hany D. Leinenwetion
TERESA LeCLERCQ, AL LeCLERCQ, & District Court
individually, and on behalf of
all persons similarly
situated, Case No. 00 C 7164

Plaintiffs,
Hon. Harry D. Leinenweber

v.

THE LOCKFORMER COMPANY, a
division of MET-COIL SYSTEMS
CORPORATION, a Delaware
corporation, MESTEK, INC., a
Pennsylvania corporation, and
HONEYWELL INTERNATIONAL, INC.,
a Delaware corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Teresa LeClercgq and Al LeClercg, individually and
on behalf of a class of similarly situated persons (the
“Plaintiffs”), bring this class action against Defendants, The
Lockformer Co. (“Lockformer”), Met-Coil Systems Corp. (“Met~Coil”),
Mestek, Inc. (“Mestek”) (collectively, “the Lockformer Defendants”
and Honeywell International, Inc. (“Honeywell”), seeking
entitlement to cost recovery pursuant to Section 107(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act (“CERCLA”), 42 U.S.C. § 9607(a) (Count I and X), the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)

(Counts II, III, IV and V), and alleging negligence (Count VI),

ox