specially concurring:
Our ruling today, for the first time, recognizes that direct participant liability is a valid theory of recovery under Illinois law. We also find that, on the specific record presented in this case, the trial court erred in granting defendant, Clark USA, Inc., summary judgment on plaintiffs’ direct participant liability claims. I am in agreement with the ultimate result reached by the majority opinion. I write separately, however, to offer additional reasons in support of the reversal of summary judgment in this matter.
In March 1995, plaintiffs’ decedents were killed in a fire which followed an explosion occurring at their workplace, a refinery located in Blue Island. The refinery is owned and operated by decedents’ employer, Clark Refining & Marketing, Inc. (Clark Refining). Defendant, Clark USA, Inc., owns 100% of the stock of Clark Refining. Plaintiffs allege that the fatal fire started when untrained operators, who were not maintenance mechanics, performed maintenance tasks and disassembled a valve which, instead of being drained of flammable materials, was still pressurized. As a result, these materials escaped and burst into flames. Decedents were eating in a lunchroom located in the maintenance building at the refinery across an access road from the maintenance work, and the explosion and subsequent fire trapped and killed them before they could escape the building.
Subsequent to the accident, plaintiffs filed suit, naming Clark Refining’s parent company, Clark USA, Inc., as a defendant based upon the theory of direct participant liability for controlling the budget of its subsidiary in such a way that directly led to the workplace accident and, ultimately, to the death of decedents. Plaintiffs alleged that defendant negligently imposed an “overall business strategy” directing the subsidiary to minimize costs and capital investments, which allegedly caused the subsidiary to engage in the dangerous practice of reducing training and maintenance. According to plaintiffs, as a result of this direct interference by the parent company, untrained operators were assigned to perform dangerous maintenance tasks at the plant. This occurred, plaintiffs contend, because there was a large maintenance backlog caused by economic cutbacks specifically dictated and directed by defendant in order to increase its own profits.
During the course of this lengthy litigation, the parties have engaged in an extensive amount of discovery, including the exchange of countless business records as well as the taking of depositions of numerous individuals with knowledge of the events that occurred prior, during and after the time of the accident. Indeed, the appellate record in the instant matter exceeds 60 volumes and reaches nearly 15,000 pages. Two weeks before this cause was set for jury trial, the circuit court of Cook County granted defendant summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (735 ILCS 5/2 — 1005 (West 2002)). The trial court’s order granting summary judgment, however, stated only that defendant’s motion was granted and contained no specific findings by the trial court to indicate the basis for its ruling.
It is in this procedural posture that the instant cause comes to us on appeal. We must, therefore, review the ruling of the circuit court to determine whether, under the specific facts and circumstances of this case, the circuit court erred in granting defendant summary judgment. The standards used to determine the propriety of a grant of summary judgment are familiar and well settled. The purpose of summary judgment is not to try a question of fact but, rather, to determine whether a genuine issue of material fact exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). The entry of summary judgement is appropriate only where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2 — 1005(c) (West 2004).
In determining whether a genuine issue of material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63 (2007). A triable issue precluding the entry of summary judgment exists where the material facts are disputed or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts. Bagent, 224 Ill. 2d at 162-63. Although summary judgment can aid in the expeditious disposition of a lawsuit, it is nevertheless a drastic means of disposing of litigation and, therefore, should be allowed only where the right of the moving party is clear and free from doubt. Adams, 211 Ill. 2d at 43 (and cases cited therein).
It is with these standards in mind that we hold today that the trial court improvidently granted defendant summary judgment. We have carefully reviewed the vast amount of evidence adduced by plaintiffs in opposition to defendant’s motion for summary judgment. Various business documents generated by defendant and/or its subsidiary, coupled with the deposition testimony of several individuals familiar with events transpiring prior, during and subsequent to the accident, raise numerous genuine issues of material fact as to whether defendant, through its direct control of Clark Refining, negligently caused the maintenance and training of employees at the Blue Island facility to degrade to such a level that safe operation of the plant became impossible, ultimately leading to the fatal accident in this case.
At this juncture, I underscore that our opinion today does not alter the bedrock principle of limited liability for corporate shareholders,1 and that direct participant liability is a very narrow exception to this general principle. Today’s decision stands for the proposition that if a parent company merely articulates general policies and supervises a subsidiary’s budgeting decisions, such conduct alone is not enough to give rise to direct liability on the part of the parent. In other words, conduct that is entirely “consistent with the parent’s investor status” does not pose a problem. United States v. Bestfoods, 524 U.S. 51, 69, 141 L. Ed. 2d 43, 62, 118 S. Ct. 1876,1889 (1998). Thus, activities by the parent company that involve the subsidiary, such as “monitoring of the subsidiary’s performance, supervision of the subsidiary’s finance and capital budget decisions, and articulation of general policies and procedures,” will, generally, not give rise to direct liability. Bestfoods, 524 U.S. at 72, 141 L. Ed. 2d at 62, 118 S. Ct. at 1889. The “critical question” in deciding whether the parent company can be held liable under a theory of direct participant liability is “whether, in degree and detail, actions directed to the [subsidiary] by an agent of the parent alone are eccentric under accepted norms of parental oversight of a subsidiary’s facility.” Bestfoods, 524 U.S. at 72, 61-62, 141 L. Ed. 2d at 62, 118 S. Ct. at 1889. Throughout these proceedings, defendant has voiced the valid concern that the direct participation liability theory of recovery must not be stretched to such an extent that it encompasses routine and proper exercises of shareholder control, lest the exception swallows the general rule and serves to spawn a flood of lawsuits against parent companies. I agree with defendant on this point, and our opinion today preserves the proper balance between the general rule and this narrow exception.
In addition, defendant has voiced concern that it could be held liable under the direct participant theory simply because it shares its officers and directors with its subsidiary. Our opinion today guards against such a result, as it recognizes the principle that “it cannot be enough to establish liability [under a direct participation theory] that dual officers and directors made policy decisions and supervised activities at the facility.” Bestfoods, 524 U.S. at 69-70, 141 L. Ed. 2d at 61, 118 S. Ct. at 1888. This is true because when an individual wears two “hats” — i.e., as an officer and/or director of both the parent and the subsidiary companies — a court will “generally presume ‘that the directors are wearing their “subsidiary hats” and not their “parent hats” when acting for the subsidiary.’ ” Bestfoods, 524 U.S. at 69, 141 L. Ed. 2d at 61, 118 S. Ct. at 1888, quoting P Blumberg, Law of Corporate Groups: Procedural Problems in the Law of Parent & Subsidiary Corporations §1.02.1, at 12 (1983). In other words, a parent company will generally not be found liable for decisions made by a subsidiary’s board and/or officers simply because these individuals are also officers or directors of the parent company. Rather, liability will result only in instances where the conduct complained of occurred while the officers/ directors were acting in their capacity as officers/ directors of the parent, rather than of the subsidiary. As the Court in Bestfoods explained: “the presumption that an act is taken on behalf of the corporation for whom the officer claims to act is strongest when the act is perfectly consistent with the norms of corporate behavior, but wanes as the distance from those accepted norms approaches the point of action by a dual officer plainly contrary to the interests of the subsidiary yet nonetheless advantageous to the parent.” Bestfoods, 524 U.S. at 70 n.13, 141 L. Ed. 2d at 61 n.13, 118 S. Ct. at 1888 n.13.
It should be emphasized that rarely will a parent company that generally observes corporate formalities step outside the proper role of a parent to so pervasively interfere with the operations of the subsidiary that it can be viewed as directly inflicting harm on the subsidiary’s employees or third parties doing business with the subsidiary. In the matter before us, however, plaintiffs have presented sufficient evidence of conduct by defendant to create a genuine issue of material fact as to whether that conduct could not only be deemed “eccentric under accepted norms of parental oversight” of a subsidiary’s business (Bestfoods, 524 U.S. at 72, 141 L. Ed. 2d at 62, 118 S. Ct. at 1889), but also “plainly contrary to the interests of the subsidiary yet nonetheless advantageous to the parent” (Bestfoods, 524 U.S. at 70 n.13, 141 L. Ed. 2d at 61 n.13, 118 S. Ct. at 1888 n.13), to the extent that it could serve as a predicate for direct participant liability on the part of defendant.
First, the record contains several business documents which raise a genuine issue of material fact with respect to the nature and extent of direct involvement by defendant in the affairs of its subsidiary, Clark Refining. As background, I note that throughout the time period at issue in this matter, defendant and Clark Refining had largely (although not entirely) overlapping boards of directors, which often held joint meetings. In addition, the president and chief executive officer of defendant, Paul Melnuk, was also the president, chief executive officer (CEO) and chief operating officer (COO) of Clark Refining. As further background information, I note that, in his deposition, Melnuk testified that he had no previous experience in the oil refining business, and that he concentrated on the financial aspects of the business. Melnuk further stated in his deposition that defendant had no operations personnel, and that its function was to simply serve as a holding company.
It is against this background that we have reviewed the following business records. For example, plaintiffs point to a business record entitled “Clark USA Liquidity Overview.” This document is part of the agenda for the Clark USA, Inc., February 15, 1995, board of directors meeting, and commands that the “1995 philosophy is survival mode,” and that the “goal is to replenish the strategic cash reserve to $200 million.” This goal was to be accomplished through “reduced capital spending,” “reduced working capital investment,” and “reduced operating expense level.”
Defendant’s continued focus on this financial goal is reflected in a document entitled “Interoffice Memorandum,” which is dated April 19, 1995, from Paul Melnuk to the “Executive Committee” regarding an “EC Meeting” to be held the following week. As part of this memo, Melnuk included as attachments documents entitled “Clark USA, Inc. 1995 Imperatives April 1995,” “Clark USA, Inc. 1994 Performance Distribution Grade Level 13 and Above,” and “Clark USA, Inc. Scorecard First Quarter, 1995.” In the 1995 “Imperatives” document, focus was placed upon replenishing Clark USA, Inc.’s strategic cash reserve of $200 million by reducing the capital spending at the Blue Island refinery to the “minimum sustainable level.” In the “Scorecard” document, “key achievements” were listed to include “cash balance” and “1995 Imperatives,” whereas key disappointments were listed to include “performance management,” “employee morale/lack of leadership,” “short-term thinking,” and “Blue Island tragedy.”
These documents create, in several respects, genuine issues of material fact that preclude entry of summary judgment. First, although defendant has asserted that it is a mere holding company, the “Interoffice Memo” contains documents which, on their face, deal with Clark USA, Inc., matters, and the memo itself is directed to the “Executive Committee.” The existence of an executive committee for Clark USA, Inc., however, would run counter to defendant’s argument that it is merely a holding company and has no operating personnel. During his deposition, Melnuk acknowledged the words as they are written in the memo and, specifically, in the attachment entitled “Clark USA, Inc. 1995 Imperatives.” Melnuk, however, offered another, alternative reading of these words, stating: “The words on this page as you read them are the words as you read them. These are actually, in fact, the 1995 Imperatives of Clark Refining and Marketing, Inc., and in this regard the title on this page is incorrect.” (Emphasis added.) Similarly, with respect to the attachment to the memo entitled “Clark USA, Inc. Scorecard First Quarter, 1995,” Melnuk testified in his deposition that although the title states “Clark USA,” this document “is in fact a score card of the business of Clark R[efining] and Marketing],” again contending that the title of the document was “incorrect.” At a minimum, these differing interpretations of the language of these documents and their contents create a genuine issue of material fact precluding entry of summary judgment.
In addition, plaintiffs assert that these documents create a genuine issue of material fact as to whether defendant’s mandated budget cuts were targeted to reduce Clark Refining’s capital spending on essential items such as safety training and maintenance. Plaintiffs contend that such commands are especially egregious and inappropriate in a refinery setting dealing with highly explosive materials, where an accident such as occurred here is foreseeable. According to plaintiff, the actions of defendant constitute precisely the type of conduct on the part of a parent company that may be considered “eccentric under accepted norms of parental oversight” (Bestfoods, 524 U.S. at 72, 141 L. Ed. 2d at 62, 118 S. Ct. at 1889) and “plainly contrary to the interests of the subsidiary yet nonetheless advantageous to the parent” (Bestfoods, 524 U.S. at 70 n.13, 141 L. Ed. 2d at 61 n.13, 118 S. Ct. at 1888 n.13), to the extent that it could serve as a predicate for direct participant liability on the part of defendant.
In support of this theory, plaintiffs point to evidence that they assert shows that although defendant, through Melnuk, was aware of the negative effects of the mandated cuts on the safety, training, and maintenance at the Blue Island refinery, it nevertheless continued to require Clark Refining to comply with its dictates. For example, Ronald Anderson, a former union president at the refinery, stated in his deposition testimony that the issue of the lack of preventative maintenance at the refinery — including that employees were forced to “cut[ ] corners” with respect to maintenance and safety — was sent up the corporate chain of command, all the way to Melnuk. According to Anderson, under the direction of the “corporate office,” members of the refinery’s safety and environmental department worked only a daytime shift, even though the plant operated on a 24-hour basis. This meant that untrained operators were left to perform these specialized jobs during the off-shifts. In his deposition, Anderson described the situation at the plant as being one of “continuous deterioration” with respect to maintenance, safety, and training, and stated that the refinery was “falling apart.” According to Anderson, Melnuk would not provide authorization to remedy the situation, despite the fact that, as union president, he directly discussed these issues with Melnuk. Anderson also stated that flyers were posted around the refinery which discussed the financial status and competitiveness of the company, which asked for increases in production, and which pointed out that other refineries had entered into bankruptcy. Anderson testified that this created a “fear factor” at the plant, in that “people *** who generally would not compromise situations, compromised their job, were placed in a position through fear to be tempted to compromise things,” meaning that they “cut corners” because they believed that otherwise “the place was going to shut down and everybody was going to lose their jobs.”
Based upon this evidence, a genuine issue of material fact was raised as to whether defendant’s extreme cost-cutting requirements — dictated to the subsidiary despite the knowledge that its measures resulted in a dangerous reduction in training and maintenance which adversely affected safety at the refinery — may be considered “eccentric under accepted norms of parental oversight” (Bestfoods, 524 U.S. at 72, 141 L. Ed. 2d at 62, 118 S. Ct. at 1889) and “plainly contrary to the interests of the subsidiary yet nonetheless advantageous to the parent” (Bestfoods, 524 U.S. at 70 n.13, 141 L. Ed. 2d at 61 n.13, 118 S. Ct. at 1888 n.13), to the extent that it could serve as a basis for direct participant liability on the part of defendant. In addition, there is clearly a genuine issue of material fact with respect to what “hat” Melnuk was wearing during this time period when he was apprised of these safety concerns but nevertheless dictated budget cuts. I also note that, during these proceedings, defendant has not challenged plaintiffs’ assertion that it knew of the potential danger at the refinery due to its business plan.
In addition, plaintiffs also rely upon the deposition testimony of Terence Quirke, an economics planning engineer at the Blue Island refinery, to withstand defendant’s summary judgment motion. Quirke testified with respect to the development and implementation of operating budgets at the Blue Island facility. According to Quirke, Melnuk — the president, CEO and COO of both defendant and its subsidiary — was personally and actively involved in creating and implementing operating budgets at the plant. According to Quirke, starting in 1993 management implemented a “zero based budget” approach that took into account the actual costs of each item and operation in detail.
According to Quirke, he and colleagues at the refinery established a working budget and assumed that it would be approved by management. Quirke testified, however, that he was informed that “Paul Melnuk had said that the budget was too much.” Quirke then inquired about what items needed to be cut, and he was told that the budget had to be reduced by 25%. In response, Quirke compiled a list of items that could and could not be cut. The bulk of the expenditures at the refinery were non-discretionary — including raw materials and utilities that were necessary to operate the plant. The remaining 20% of the costs were controllable, including employee wages, benefits, education, training, repairs, and equipment maintenance. According to Quirke, the only choice in complying with the requirement to reduce costs by 25% was to cut the controllable costs within the budget. According to Quirke’s deposition testimony, this was explained to Melnuk, and, eventually, the budget with these reductions was approved. Quirke testified that, as a result of the mandated budget cuts, several troubling events occurred at the refinery, including 20 workers being replaced with 6 in one department, and new operator training and refresher training being entirely eliminated.
According to plaintiffs, when defendant ordered the budget cuts at the Blue Island refinery, it knew that safety, training, staffing, education and maintenance would all be compromised, and, accordingly, it was foreseeable that injury would occur as a result. Plaintiffs further contend that the record reflects that the subsidiary had no decision in this reduction. Finally, plaintiffs point to Clark Refining’s own internal investigation of the accident, which cited a lack of training, maintenance and safety as having played a causative role.
Accordingly, in light of the evidence presented by plaintiffs, a genuine issue of material fact has been raised with respect to whether defendant merely established parameters or financial goals for its subsidiary. The evidence raises a question as to whether defendant actively mandated aggressive cuts in its subsidiary’s budget knowing that these cuts could only be accomplished by dramatic reductions in maintenance, training and safety. Moreover, the evidence raises a question with respect to the forseeability of injury, as it appears that defendant had several opportunities, after ordering drastic budget reductions and observing their negative effects, to change course but did not. This conduct raises material questions of fact as to whether defendant’s actions fall within the direct participant liability doctrine.
In sum, our opinion today recognizes a very narrow exception to the general rule. I underscore the procedural posture of this case: it is here on a review of a grant of defendant’s motion for summary judgment. In assessing the circuit court’s ruling, we construe, as we must, all evidence strictly against the movant — defendant—and liberally in favor of the opponent — plaintiffs. With our opinion today, this court only determines that plaintiff adduced sufficient evidence to withstand defendant’s motion for summary judgment. The decision today should not be interpreted as indicating or telegraphing whether plaintiffs will ultimately succeed on the merits of this cause of action. That is a question for the trier of fact to decide at trial.
JUSTICE BURKE joins in this special concurrence.
As the United States Supreme Court observed in United States v. Bestfoods, “it is hornbook law that ‘the exercise of the “control” which stock ownership gives to the stockholders ... will not create liability beyond the assets of the subsidiary.’ ” Best-foods, 524 U.S. at 61-62, 141 L. Ed. 2d at 56, 118 S. Ct. at 1884, quoting W.O. Douglas & C. Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L.J. 193 (1929).