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HOCKETT v. AMERICAN AIRLINES

May 7, 1973

CURTIS F. HOCKETT AND JANET HOCKETT, PLAINTIFFS,
v.
AMERICAN AIRLINES, INC., A CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robson, Chief Judge.

MEMORANDUM OPINION AND ORDER

On March 2, 1973, Janet Hockett filed a claim for loss of consortium based upon injuries suffered by her husband, Curtis Hockett, September 23, 1968. American Airlines, The Garrett Corporation, and The Boeing Company have moved*fn1 to dismiss Counts IV, V, and VI of the Second Amended Complaint (the claims of Janet Hockett against the respective defendants) on the ground that these claims for loss of consortium were not filed within the two-year statute of limitations period applicable to actions brought for an injury to the person.

For the reasons stated herein, the motion is denied, and Counts IV, V, and VI of the Second Amended Complaint shall stand.

The issue before the court is whether a claim for loss of consortium is governed by Illinois' two-year limitation period applicable to actions brought for "an injury to the person"*fn2 or the five-year period applicable to "all civil actions not otherwise provided for. . ."*fn3 In this diversity suit, the court must decide the issue in accordance with Illinois law, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). As no Illinois state court has decided the issue raised on this motion, this court must place itself in the position of the Illinois Supreme Court and decide the issue*fn4 as expressed in the decisions of Illinois appellate courts. This procedure was formally recognized in Preston v. Aetna Life Ins. Co., 174 F.2d 10, 12 (7th Cir. 1949), cert. den., 338 U.S. 829, 70 S.Ct. 80, 94 L.Ed. 504 (1949), where the court stated that in determining state law

  "federal courts are bound by the decisions of
  State intermediate appellate courts unless there
  is persuasive evidence that the highest State
  court would rule otherwise, [citing cases]."

Now this court must determine if there is a basis for ascertaining how the Illinois appellate courts would rule on the issue if it was presented to them. Secondly, the court must determine whether there is any persuasive reason to believe that the Illinois Supreme Court would rule otherwise.*fn5

The Illinois courts have narrowly construed the two-year statute of limitations so that it applies only to actions arising out of an injury directly to the person of the plaintiff, and it does not apply to those actions which are derived from the personal injury action, Waller v. City of Chicago, 11 Ill. App. 209 (1882); Bassett v. Bassett, 20 Ill. App. 543 (1886); Roth v. Lundin, 237 Ill. App. 456 (1925); Desiron v. Peloza, 308 Ill. App.? 582, 32 N.E.2d 316 (1941); Seymour v. Union News Co., 349 Ill. App. 197, 110 N.E.2d 475 (1953) (action for personal injury barred by the two-year statute of limitations); Seymour v. Union News Co., 217 F.2d 168 (7th Cir. 1954) (action by Mrs. Seymour under Illinois' Family Expense Statute for losses incurred by reason of personal injury to her husband).

The case that led the way for this narrow construction of the two-year statute of limitations was Bassett v. Basset, supra. Bassett involved a suit by a woman against her father-in-law, who wrongfully enticed her husband to desert. In reaching its decision the court stated, at 548:

  "The cause of action for an injury to the person
  which is barred in two years is limited to a direct
  physical injury to the person. If it were intended
  to include all injuries to personal and relative
  rights, the legislature would not have considered
  it necessary in the same act to provide specially
  for a period of time in which an action should be
  brought for many of the injuries to such rights.
  Thus actions to recover damages for slander and
  libel, false imprisonment, malicious prosecution,
  abduction, seduction and criminal conversation, are
  expressly provided for, showing the clear intent of
  the legislature to limit `injuries to the person'
  to those of a physical nature. This case is one of
  those not specially provided for, and would
  therefore seem to be governed by the fifteenth
  section of the act making five years the
  limitation." (Emphasis added).

Within this language is an expression of policy by an Illinois court that the two-year statute of limitations will be applied only to actions based on a direct physical injury to the person of the plaintiff. The language in Bassett has never been contradicted by any Illinois court. Of course, where a federal court must decide a question of state law which has never been decided by the highest state court, the federal court "must look for other indications of state law." See Wright, supra, note 5. The statement by the court in Bassett, is an indication of the state law of the two-year limitation statute which this court is not free to disregard. And since there has been no conflicting indication of what state law on this issue would be, the language in Bassett may be taken as conclusive on the issue.

The expression of policy on the narrow constuction of the two-year limitation period was recently reaffirmed in Doerr v. Villate, 74 Ill. App.2d 332, 220 N.E.2d 767 (1966). In Doerr, the trial court dismissed count I of plaintiff's second amended complaint because it was barred by the two-year statute of limitation. The appellate court reversed stating that the suit was based upon an alleged breach of oral contract, to which the five-year statute applied. In reaching its decision the court stated at 337, 220 N.E.2d at 770:

  "Section 14 [now Section 15] of the Statute of
  Limitations and its two-year bar does not apply to
  every action involving personal injuries, but
  rather those where plaintiff is suing for direct
  physical or mental injuries, Seymour v. Union News
  Co., 349 Ill. App. 197, 201, 110 N.E.2d 475
  (1953); . . . Roth v. Lundin, 237 Ill. App. 456,
  458 (1925); Bassett v. Bassett, 20 Ill. App. 543,
  548 (1886)." (Emphasis added).

After the appellate court's opinion was entered, the defendant filed a petition for rehearing in which he took specific issue with the language quoted above. The defendant contended, as The Boeing Company contends in this motion, that when any cause of action is related to, or arises as a consequence of personal injuries — even though to a person other than the plaintiff — the two-year limitation of section 14 (now section 15) must apply. In a supplemental opinion, 74 Ill. App.2d 338 (1966), the court stated that the defendant misconstrued the cases of Bassett v. Bassett, supra, Roth v. Lundin, supra, Menolascino v. Superior Felt and Bedding Co., 313 Ill. App. 557, 40 N.E.2d 813 (1942), and Seymour v. Union News Co., 349 Ill. App. 197 (1953). In its discussion of these cases the Doerr court quoted verbatim from Bassett v. Bassett, supra, to the effect that the two-year statute of limitations applies only to actions brought for by a plaintiff who suffered direct physical injuries to his person. Thus, Doerr stands as recent Illinois appellate court determination that the rule set forth in Bassett is correct. The Bassett declaration of policy therefore appears to have continued vitality, and as such, it must be given great weight by a federal court in deciding how the Illinois Supreme Court would decide the issue, Preston v. Aetna Life Ins. Co., supra.

The conclusion reached by this court is bolstered by the recent decision of Johnson v. Hi-Way Dispatch, Inc., 352 F. Supp. 929 (E.D.Ill. 1972). That case held that an action for loss of consortium in Illinois was subject to the five-year statute of limitations applicable to "all civil actions not otherwise provided for," rather than the two-year period applicable to "actions for an injury to the person." The court determined that the courts of Illinois, while never having decided this precise question, have indicated the nature of and the applicable statute of limitations for an action ...


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