Geotechnical News • June 2012
49
ASFE NEWS
the court, “The answers provided by
Davis, subject to [Cat Iron’s] coun-
sel’s objections, time and again, stated
that Davis was not aware of any facts
that supported Plaintiff’s claim that
Defendant’s actions were willful and
wanton. Davis said he did not have
any facts that Defendant acted with
conscious disregard for Plaintiff’s
business plans with regard to the
Decatur facility. Davis also stated that
Plaintiff does not know what Defen-
dant’s motives ‘were or were not’ in
doing the inspection. Further, Davis
and Plaintiff did not have any facts in
its possession to show that Defendant
acted intentionally or with reck-
less disregard in failing to allegedly
identify all of the asbestos containing
material at the Decatur building.”
Based in part on Davis’ testimony,
Bodine’s amended motion sought
summary judgment on three grounds:
(1) Cat Iron admitted it had no facts
to support wanton and willful mis-
conduct by Bodine, thus making the
LoL enforceable and depriving the
federal district of jurisdiction; (2)
Cat Iron’s claim was for commercial
losses only, not threats to health or
safety, thus defeating any claim for
wanton or willful misconduct; and (3)
the economic-loss doctrine barred Cat
Iron’s negligence claim.
In response, Cat Iron disputed the
three grounds and continued to argue
that the LoL violated public policy.
But the court did not look favorably on
the public-policy contention. It said,
“Plaintiff has not specifically cited an
Illinois statute or case prohibiting a
damages limitation provision in a con-
tract relating to asbestos removal. This
court must follow established Illinois
law, and will not fashion such a rule in
federal court for the first time.”
As for Bodine’s claim that the Illinois
economic-loss doctrine (called the
Moorman Doctrine there) barred the
negligence claim (a tort) because
plaintiffs cannot recover for purely
economic loss under a tort theory,
that negligent mis-
representation “by a defendant in the
business of supplying information for
the guidance of others in their business
transactions” constitutes an exception,
and Cat Iron was alleging negligent
misrepresentation. However, the
court also noted that “the only claim
keeping this case in federal court is
Plaintiff’s…negligence claim assert-
ing willful and wanton conduct on
the part of Defendant. Under Illinois
law, exculpatory clauses are generally
valid and enforceable, “barring fraud
or wanton and willful negligence.”
Therefore, if Plaintiff cannot show a
genuine issue of material fact as to
the wanton and willful negligence
claim…, those claims will be dis-
missed, the damages limitation clause
will apply, limiting Plaintiff’s dam-
ages to $6,100, and the case will be
dismissed for lack of federal subject
matter jurisdiction. Thus, the court
will only consider the economic loss
doctrine’s application to the Count III
negligence wanton and willful claim.”
The court went on to note, “For the
same reasons articulated above on why
the court will not apply the economic
loss doctrine, the court will not grant
judgment on the wanton and willful
claim because Plaintiff cited to only
commercial losses. Again, the Illinois
Supreme Court has held that asbes-
tos, by its very nature, is a uniquely
dangerous substance. Implicit in
cases involving asbestos removal
is a threat to health and safety. The
court will not grant judgment on the
wanton and willful claim on the issue
of commercial losses. This does not
mean, however, that because this
court declines to apply the economic
loss doctrine and declines to find that
Plaintiff alleged only commercial
losses in its wanton and willful negli-
gence claim that the damages limita-
tion clause is vitiated. The damages
limitation clause will apply and thus
deprive this court of subject matter
jurisdiction unless Plaintiff can show
a genuine issue of material fact exists
as to whether Defendant’s actions or
omissions constituted negligence in a
wanton and willful manner.”
And then came the kicker: “Defen-
dant argues that, since Plaintiff’s Rule
30(b)(6) representative stated, under
oath, that Plaintiff had no facts to sup-
port those allegations, it cannot sustain
a claim for the alleged conduct.
“Plaintiff counters that the evidence
from the deposition is not admissible
because defense counsel’s questions
to Davis elicited ‘opinions phrased in
terms of inadequately explored legal
criteria.’ To answer the questions,
Plaintiff argues, Davis had to form
a legal opinion on the topic of will-
ful and wanton misconduct and then
make legal conclusions based on his
own definition instead of basing it on
clearly defined legal criteria. Without
this evidence, Plaintiff argues, Defen-
dant’s motion must be denied.”
The court then cited a variety of prec-
edents to support its conclusion (cita-
tions deleted): “The Notice informed
Plaintiff that Defendant sought a
deponent who could testify as to ‘all
facts’ upon which Plaintiff based its
allegation that Defendant acted in a
‘wanton and willful’ way in failing
to identify or report certain asbestos
containing materials. Further, while it
is true that Davis, Plaintiff’s co-owner
and the Rule 30(b)(6) designee, was
not a lawyer, the term ‘wanton and
willful’ is not such a legal term of art
that Davis could not understand what
it meant or is in some way incompre-
hensible to a layperson, and at least
one court has allowed Rule 30(b)(6)
designees to testify as to what facts
supported a claim of wanton and
willful misconduct. Therefore, the
court will allow in as evidence in the
motion for summary judgment, over
the objection of Plaintiff’s counsel,
the testimony given at the Rule 30(b)
(6) deposition that Davis has no
knowledge of any facts to support
Plaintiff’s claim of wanton and willful
misconduct. However, the court does
not find that this testimony necessarily
results in judgment for Defendant on
Plaintiff’s claim of wanton and willful
