United States District Court, Eastern District of Illinois
November 29, 1972
BETTY JOHNSON, PLAINTIFF,
HI-WAY DISPATCH, INC., A CORPORATION, DEFENDANT
The opinion of the court was delivered by: Foreman, Judge:
MEMORANDUM AND ORDER
This is a diversity suit for loss of consortium brought by
a wife whose husband was injured in an automobile accident.
From the pleadings it appears that Plaintiff's husband earlier
brought a negligence action against the present Defendant for
his personal injuries arising out of the same accident, and
recovered damages upon the trial of that action.
The accident occurred on April 13, 1967, near Effingham,
Illinois. The present action was commenced on April 12, 1972,
one day short of five years from the date of the automobile
accident. Defendant has moved to dismiss the complaint under
Rule 12, alleging that the action is barred by the Illinois
two-year statute of limitations covering "actions for damages
for an injury to the person," Ill.Rev.Stat.Ch. 83 § 15.
Plaintiff has not responded to the motion.
It is clear that in a diversity action this Court is bound
by the Illinois statute of limitations. Guaranty Trust Co. v.
York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). In
the above-mentioned statute, Ill.Rev.Stat.Ch. 83 § 16 provides
that "all civil actions not otherwise provided for" must be
brought within five years of the accrual of the cause of
action. Thus the issue is whether Plaintiff's suit for loss of
consortium is an "action for damages for an injury to the
person," subject to the two-year statute of limitations or is
subject to the general five-year statute.
Defendant in its brief claims that no Illinois case law is
applicable on the point, and thus cites authority from other
states. The Court believes, however, that the courts of
Illinois have indicated the nature and applicable statute of
limitations for an action for loss of consortium.
It was long the law in Illinois that a husband could
maintain an action for loss of consortium due to injuries to
his wife. Price v. H. B. Green Transportation Line,
287 F.2d 363 (7th Cir., 1961). In Dini v. Naiditch, 20 Ill.2d 406,
170 N.E.2d 881 (1960), the Illinois Supreme Court held that a wife
could likewise maintain such an action due to injuries to her
husband. The Court explained the nature of the cause of
"consortium, however, includes, in addition to
material services, elements of companionship,
felicity and sexual intercourse, all welded into
a conceptualistic unity."
The gist of the action is the wife's loss resulting from
personal injuries of the husband. The Court noted that the
cause of action exists to serve the same basic reason that
alienation of affection suits do — namely, the protection of
the family. See also Tjaden v. Moses, 94 Ill. App.2d 361,
237 N.E.2d 562 (1968).
In similar actions for loss of the services of a family
member, the courts of Illinois have applied the general
five-year statute of limitations. Waller v. City of Chicago,
11 Ill. App. 209 (1882), involved a parent's suit for loss of
services of his child due to negligently inflicted personal
injuries. The Court rejected the applicability of the two-year
personal injury statute, holding that, ". . . the gist of the
action is not the injury, but the consequence of such injury
whereby the parent lost the services of the child."
In Desiron v. Peloza, 308 Ill. App. 582, 32 N.E.2d 316
(1941), a minor child sued for loss of her mother's services,
and her mother sued for her own personal injuries. The Court
found the mother's claim to be barred by the two-year personal
injury statute, but that the infant's claim was not so barred.
Said the Court, "clearly the minor does not bring her action
for damages for an injury to her person."
There is no reason why this characterization should not
carry over to the case of a spouse's injuries. In Bassett v.
Bassett, 20 Ill. App. 543 (1880), the Court held that an
action for malicious enticement was subject to the general
five-year limitation, noting that the two-year statute is
aimed at only direct physical injuries. Roth v. Lundin,
237 Ill. App.? 456 (1925), involved a husband's suit to recover
doctor bills which he paid as a result of his wife's personal
injury. The two-year statute of limitations was held not to
apply to such an action, even though it proceeded out of a
personal injury claim. And in Seymour v. Union News Co.,
217 F.2d 168 (7th Cir., 1954), the Court held that a wife's action
under the Illinois Family Expense Statute (Ch. 68 § 15) could
be brought under the five-year statute, despite the fact that
the cause of action arose out of her husband's personal
injuries. Most recently, in Doerr v. Villate, 74 Ill. App.2d 332,
220 N.E.2d 767 (1966), it was held that a wife who sued
for malpractice for injury done to her husband was suing on an
oral contract and thus was subject to the five-year statute of
limitations. Obviously, the cause of action there arose out of
personal injuries, but not for the Plaintiff's "direct physical
or mental injuries," id. at 770 (see also supplemental opinion,
The thrust of these cases is that a suit for damages
sustained by a family member by virtue of the personal
injuries of a fellow family member is not deemed to be a suit
"for damages for an injury to the person." To this extent the
cause of action for loss of consortium, as outlined by the
Illinois Supreme Court in Dini v. Naiditch, falls outside the
scope of the two-year statute.
Thus plaintiff is entitled to maintain this action, and
defendant's motion to dismiss is denied.
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