North American Asbestos Corp. v. Superior Court

[141]

Opinion

SCOTT, J.

Petitioner North American Asbestos Corporation challenges the denial of its motions to quash service of process. Petitioner’s four petitions, considered herein collectively, raise the question of whether a dissolved Illinois corporation may be sued in California for asbestos-related injuries when the dissolution took place more than two years before the suits were filed.

Petitioner is the defendant in 13 different lawsuits, some with multiple plaintiffs, all involving asbestos-related injuries. Petitioner was incorporated under the laws of the State of Illinois on October 14, 1953, and on May 19, 1978, filed articles of dissolution and was issued a certificate of dissolution by the Secretary of State of Illinois.

Illinois has a statute which provides that the dissolution of a corporation shall not impair any remedy for a liability incurred prior to dissolution “if action or other proceeding thereon is commenced within two years after the date of such dissolution.” (111. Rev. Stats. (1977) ch. 32, § 157.94.) Eleven of the thirteen lawsuits were filed more than two years after dissolution. A twelfth brought by Carl Tognolini, Johnnie Overstreet and Ned Fernandez (action No. 532968-5, covered by petition 1 Civ. 51482) was filed several days before the two-year period ended, but service took place after the deadline. The remaining lawsuit by John Gorman (action No. 524147-9, covered by petition 1 Civ. 53506) was filed before the period expired, but when initially filed did not name petitioner as a defendant. The first amended complaint, which substituted petitioner for a Doe defendant, was filed after the two-year period had ended.

Service of process in the various lawsuits was by mailing summons and complaint to Max E. Meyer, trustee of the liquidating trust of North American Asbestos Corporation. Petitioner did not return the acknowledgment of receipt forms accompanying service. Instead, petitioner moved to quash, contending both that service upon the dissolved corporation was void and that the corporation did not have the minimum contacts with California to justify suit here. The motions to quash were denied. These petitions followed. We conclude that the motions to quash were properly denied in that the court had jurisdiction over petitioner and that the appropriate procedure to challenge petitioner’s capacity to be sued was by way of a demurrer, motion for summary judgment, or other procedures.