Background and Context
A recent Madison County, Illinois,[1] case explored whether the actions of an insurance carrier could waive an insured’s personal jurisdiction defense in an asbestos exposure wrongful death case. This appears to be an issue of first impression in Madison County asbestos litigation, but plaintiffs could raise this argument in other types of litigation and in other courts as well.
The Court ultimately found there had been no waiver and granted defendant’s motion to dismiss for lack of personal jurisdiction, but the arguments presented show how early communications can create risk.
Facts of the Case
Plaintiffs Sharon Long and Robert Long are the representatives of the estate of Mark Long, the decedent. In January 2024, they filed a complaint in Madison County, Illinois, alleging that the decedent developed mesothelioma from asbestos exposure and died as a result. The complaint named Roseburg Forest Products Co. as one of several defendants. According to the complaint, decedent was working for Roseburg in Oregon when the alleged exposure happened.
In its pleadings, Roseburg stated that it is organized in Oregon and has its principal place of business there as well. Since decedent had been its employee, it reported plaintiffs’ claim to the Oregon workers’ compensation system as well as its insurance carrier. In March 2024, an employee of Roseburg’s workers’ compensation claims administrator sent letters to plaintiffs informing them that the administrator was investigating the mesothelioma claim arising from asbestos exposure in connection with decedent’s employment by Roseburg. The administrator sought to depose the Longs on a specific date and time and at a specific location.
Ten days after the administrator sent these letters, counsel for another firm filed a motion in Madison County on behalf of Roseburg to dismiss the case for lack of personal jurisdiction. Plaintiffs opposed the motion in part because they contended that since the claims administrator’s actions were taken before the motion was filed, defendant had waived this defense. Plaintiffs also argued that the letter sent to Mark Long (and presumably Sharon Long) was a pleading that raised a defense other than personal jurisdiction prior to Roseburg asserting its personal jurisdiction defense.
The issue before the Madison County Court was whether the action of Roseburg’s Oregon workers’ compensation claims administrator waived its personal jurisdiction defense in the Illinois civil case.
The Applicable Rule
Whether a personal jurisdiction defense is preserved or waived depends in part on what pleadings or motions the defendant files with the court and when those filings occur.
Under 735 ILCS 5/2‑301(a), a defendant must first raise lack of personal jurisdiction by motion before filing any other pleading or motion, or the defense is waived. Subsection (a‑6) confirms waiver if another pleading or motion is filed first, with narrow exceptions (e.g., a motion for more time; motions under 2‑1301, 2‑1401, or 2‑1401.1). Courts generally focus on what is filed with the court, not on informal communications outside the case record.
In Madison County asbestos cases, the Madison County Standing Order (MCSO) permits participation in discovery without waiving defenses.
Summary Of Plaintiffs’ Arguments
Plaintiffs Framed the Jurisdictional Defense as Waived
Plaintiffs noted that the Madison County civil case and Oregon Workers’ Compensation matter each claimed decedent contracted mesothelioma as a result of asbestos exposure while he was employed by Roseburg. They cited an Illinois civil procedure rule [735 ILCS 5/2-301(a)] that states that a defendant waives the personal jurisdiction defense unless it is raised “[p]rior to the filing of any other pleading or motion other than a motion for extension of time to answer or plead.” Plaintiffs acknowledged that defendants can raise the personal jurisdiction defense alone or include it in a motion that raises other defenses. They also cited another civil procedure rule [735 ILCS 5/2-301 (a-5[sic])] that personal jurisdiction is waived if before asserting the personal jurisdiction defense, a defendant first “files a pleading or motion (other than one seeking an extension of time to answer or otherwise appear).”
Plaintiffs Argued that the Letter was a Pleading
Plaintiffs then argued that according to 735 ILCS 5/2-301 (a-6), the letter from the Oregon workers’ compensation claims administrator was a pleading that resulted in Roseburg waiving its personal jurisdiction defense. They quoted language and findings from multiple Illinois Supreme Court cases illustrating what constitutes a pleading or a motion.
- A pleading “consists of a party’s formal allegations of his claims or defenses”, and a motion is “an application to the court for a ruling or an order in a pending case”. Citing In re Marriage of Wolff, 335 Ill.App.3d 403, 407, 209 Ill.Dec. 1011, 822 N.E.2d 596 (2005).
- Illinois law is well-settled that a motion or pleading’s substance, not title, dictates its character. Vanderplow v. Krych, 332 Ill.App.3d 51, 54, 773 N.E.2d 40, 265 Ill.Dec. 678 (2002).
- [t]he pleading should be liberally construed so that controversies may be determined on their merits rather than on mere technicalities. Davis v. United Fire & Casualty Co., 81 Ill.App.3d 220, 224, 400 N.E.2d 984, 36 Ill.Dec. 404 (1980).
Plaintiffs Characterized the Deposition Request and Letter as Pleadings
Plaintiffs noted that Roseburg made its deposition request “as a result of Plaintiffs’ lawsuit” while investigating the claim that decedent was injured from asbestos exposure during his employment by Roseburg. Plaintiffs characterized the letter from the Oregon workers’ compensation claims administrator as a pleading and the request for deposition as “discovery in a pleading.” Plaintiffs further argued that Roseburg “submitted a pleading to Plaintiffs” and moved forward with discovery pertaining to the mesothelioma injury. They asked the court to conclude that Roseburg submitted itself to the personal jurisdiction of the Madison County Court through these actions.
Plaintiffs’ Relied on CE Design
Plaintiffs also relied on the unpublished opinion in CE Design to support its position that the actions of the Oregon claims administrator waived Roseburg’s personal jurisdiction defense in Madison County.[2]
Plaintiffs Attempted to Link the Oregon and Madison County Proceedings
Plaintiffs did not allege that the Oregon claims administrator communicated in any way with the Madison County Court. However, since the Oregon workers’ compensation claim and the Madison County civil case involved the same injury and alleged cause, plaintiffs sought to link Roseburg’s actions taken in the first matter to the personal jurisdiction analysis in the second. Plaintiffs asked the Court to apply the CE Design waiver rule to Roseburg’s conduct, arguing that Roseburg told plaintiffs but not the Madison County Court about a different defense before filing a pleading or motion to preserve personal jurisdiction.
Summary Of Defendant’s Arguments
After plaintiffs responded to Roseburg’s motion to dismiss, Roseburg filed a reply refuting plaintiff’s contentions.
The Letter Was Not an Illinois Pleading
Roseburg argued that the letter sent to plaintiffs by the Oregon claims administrator regarding that state’s workers’ compensation claim does not constitute a pleading in plaintiffs’ Madison County case. Therefore, the letter did not initiate discovery in that case nor waive the Illinois personal jurisdiction defense.
The Letter Did Not Initiate Discovery in the Illinois Case
Roseburg examined the text of 735 ILCS 5/2-301 (a) and (a-6) and highlighted the activities that can cause waiver of a personal jurisdiction defense. It emphasized the statutes’ use of the verbs “filing” and “filed” as triggers that could result in waiver. Roseburg noted that the letter was not directed to nor filed with the Madison County Court. Roseburg argued that Plaintiff’s citation of and reliance on the CE Design case “overlooks the nuance of filing.” It also distinguished CE Design on its facts: that insurance company actually did send a letter to the trial court prior to filing any other pleading raising a defense other than personal jurisdiction. Additionally, Roseburg noted that as an unpublished opinion, CE Design lacks precedential authority under Illinois Rule 23.
Roseburg posited that the letter was sent to Plaintiffs “in connection with proceedings governed by Oregon Law.” It stated this was clear from the face of the letter, which in fact refers to Oregon statutes multiple times. Roseburg also noted that the claims administrator was investigating the Oregon workers’ compensation claim and pointed out that the claims administrator who drafted the letter was not an attorney. It argued that the deposition was sought as part of the Oregon workers’ compensation claim and “did not initiate discovery in the Illinois case.”
MCSO Allows Discovery Without Waiving Personal Jurisdiction
Finally, Roseburg pointed out that even if the letter was deemed an Illinois pleading that initiated discovery, the Madison County Standing Asbestos Case Management Order permits participation in discovery or depositions without waiving the personal jurisdiction defense. (“Participation of a defendant in motion practice, depositions or discovery shall not constitute waiver of any of its defenses, including but not limited to those regarding service, jurisdiction or venue.” Section (III)(C)(2)(c) of the MCSO)
Analysis of Court’s Decision
The Madison County Court conducted a hearing on Roseburg’s Motion to Dismiss for Lack of Personal Jurisdiction.
At the outset of the hearing, plaintiffs conceded that the Court lacked personal jurisdiction over Roseburg in this case. However, plaintiffs then argued that Roseburg had waived this defense by sending plaintiffs a letter after being served with the Complaint but before filing its personal jurisdiction motion. Plaintiffs relied on the similarities between the instant case and CE Design, noting that each involved a letter sent by a defendant’s insurance carrier. They argued that in both instances, the letters addressed the merits of the underlying claims. Plaintiffs therefore contended that the Court should find that defendant waived personal jurisdiction when it knew about the case and took actions that led plaintiffs to reasonably believe defendant intended to defend the case on its merits.
The Court pointed out that Roseburg, on the other hand, argued that the facts of the instant case do not align with CE Design in significant ways: (1) The letter was not sent to nor filed with the Court. (2) The letter was sent to comply with Oregon’s workers’ compensation law. (3) According to the MCSO, participating in depositions does not waive the personal jurisdiction defense. Thus, Roseburg asserted that the facts of this case make it unlike CE Design and warrant the opposite result.
In its Order granting Roseburg’s personal jurisdiction motion, the Court found that the letter was never filed with the Court and therefore did not waive personal jurisdiction. That lack of filing appeared to be an important factor in the Court’s decision. The Court appeared to rely on the ruling of other Illinois courts that a document is “filed” only when it is received by the circuit clerk and made part of the official records. See Knapp v. Bulun, 392 Ill.App.3d 1018, 1027.
Advice for Defense Attorneys
The Illinois statute that allows defendants to plead a personal jurisdiction defense in conjunction with other defenses may provide defendants relief in these types of cases.
The key period is the time between when a defendant is served with a complaint and when it files a responsive pleading formally preserving the personal jurisdiction defense. Communications with plaintiff, plaintiff’s counsel, or the court during this time could inadvertently waive personal jurisdiction. This includes communications by defendant, its insurance carrier, or counsel.
Taking the following steps may help preserve a defendant’s personal jurisdiction defense:
- File the personal jurisdiction motion first. Don’t file anything else (except a permitted extension) before a 2‑301(a) motion, or you may risk waiver.
- Control early communications. Instruct insurance carriers, third-party administrators, adjusters, and defendants to be cautious when sending letters, notices, or discovery that could appear to participate in the Illinois case before the personal jurisdiction motion is filed.
- If communication is unavoidable, add reservations. Include explicit, written non‑waiver language (e.g., “This communication is solely in connection with the Oregon workers’ compensation matter and does not submit to Illinois jurisdiction.”). Also, add language expressly preserving the personal jurisdiction defense (e.g., “In sending this correspondence, defendant intends to preserve any other defense or objection it may have in this matter, including as to personal jurisdiction.”) If the communication is later deemed a pleading, then the personal jurisdiction defense would be raised simultaneously with any other position asserted. This would satisfy Illinois’ statutory personal jurisdiction pleading requirements.
- Leverage local rules, but don’t rely exclusively on them. Although the MCSO in asbestos cases allows participation in discovery without waiving defenses, it’s still prudent to avoid filing anything with the Illinois court until the personal jurisdiction motion is on file.
Note: While the Long court focused on whether the letter was formally filed, at least one Illinois appellate court concluded that a document that does not appear to have been filed with the court could still be considered a “pleading” in a different context. See e.g.,Golf Trust of Am., L.P. v. Soat, 355 Ill.App.3d 333, 336 (2005). Defense counsel should therefore assume any communication that addresses the merits of a case—even less formal documents—could still be deemed to be pleadings under certain circumstances. - Document the timeline. Track: (1) service date, (2) any communications by you or the carrier, and (3) the exact filing time of the personal‑jurisdiction motion.
[1] Sharon L. Long and Robert A. Long, Individually and as Representatives of the Estate of Mark A. Long, Deceased v. Roseburg Forest Products Co. (Cause No. 24-LA-97)
[2] In CE Design, a plaintiff brought a class action lawsuit against Homegrown Advertising and two individuals alleging that defendants violated the Telephone Consumer Production Act (47 U.S.C. 227) and the Illinois Consumer Fraud and Deceptive Practices Act (815 ILCS 505/2) and that the defendants also committed conversion. 2011 Ill.App.Unpub. LEXIS 1061, *3. The second amended complaint also alleged that Homegrown Advertising was a sham corporation and that the underlying allegations stemmed from a junk fax advertising defendants at plaintiff’s place of business. Id. After settlement negotiations, the trial court entered a final approval of settlement agreement and judgment against defendants for $5 million. Id. The order further provided that the insurance policy issued by defendants’ insurer was the sole source of recovery for plaintiff and the other members of the class. Id. Plaintiff then initiated a post-judgment collection proceeding to discover the insurance company’s assets. Id. at *4. After being served with the citation to discover assets, the carrier sent a letter to the trial court explaining that it was not responsible for plaintiff’s judgment because the claim against its insured was not covered by the underlying policy it issued. CE Design Ltd. v. Homegrown Adver., Inc., 2011 Ill.App.Unpub. LEXIS 1061, *4. The trial court subsequently granted the insurance company’s motion to dismiss on the ground that the trial court lacked personal jurisdiction over it. Id. at *4-*5. On appeal, the Second District Illinois Court of Appeals reversed, finding that the insurance company’s letter was a pleading that did not preserve the personal jurisdiction defense because the letter “reasonably informed plaintiff of the defense it was called upon to answer,” and it was filed with the trial court. Id. at *8-*10.