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Branden v. Gerbie

OPINION FILED JUNE 26, 1978.

NANCY J. BRANDEN, PLAINTIFF-APPELLANT,

v.

MELVIN GERBIE ET AL., DEFENDANTS. — (ORTHO PHARMACEUTICAL, INC., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Nancy J. Branden (plaintiff) filed a three-count complaint on January 28, 1975, alleging that she suffered personal injury from an intra-uterine device (IUD) which was inserted on or before February 10, 1973, and removed on February 15, 1973. She alleged that her injury resulted from the negligence of Dr. Melvin Gerbie, her physician (count I) and of Northwestern Memorial Hospital where she was treated (count II). She further alleged that A.H. Robins Company, Inc., the manufacturer of the device, was strictly liable in tort for her injury (count III). On February 26, 1975, A.H. Robins Company, Inc., answered, denying that it manufactured the device used.

On May 25, 1976, plaintiff's attorney sent Ortho Pharmaceutical, Inc. (Ortho), notice that the IUD inserted was a Lippes Loop manufactured by Ortho and that plaintiff would bring a lawsuit against Ortho under the warranty provisions of the Uniform Commercial Code.

On December 14, 1976, plaintiff filed an amended complaint. Count III alleged that her injury was proximately caused by Ortho's breach of an implied warranty. Ortho moved to dismiss on the ground that the suit was not timely filed. The circuit court dismissed for failure of plaintiff to meet the notice requirements of Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550, and for the reason that the applicable statute of limitations had expired before the filing of the action against Ortho. Judgment was entered for Ortho.

Plaintiff appeals, arguing that (1) the applicable statute of limitations had not run, (2) notice was not required in order that plaintiff maintain her cause of action, and (3) if notice was required, plaintiff gave defendant timely notice.

Plaintiff argues that the trial court wrongfully applied the 2-year statute of limitations for personal injuries (Ill. Rev. Stat. 1975, ch. 83, par. 15) instead of the applicable 4-year statute of limitations for breach of an implied warranty (Ill. Rev. Stat. 1975, ch. 26, par. 2-725(1)). We agree.

• 1 Plaintiff's amended complaint, predicated on the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2-315), alleged the breach of an implied warranty. Under Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550, the applicable statute of limitations is set out in section 2-725(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2-725(1)). That section provides:

"(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it."

The IUD manufactured by Ortho was inserted and removed in February 1973. The amended complaint was filed on December 14, 1976, less than 4 years later. The trial court incorrectly held that the applicable statute of limitations had expired before the filing of the amended complaint.

Plaintiff next contends that the trial court incorrectly held that notice is an essential element of a cause of action based upon the breach of an implied warranty. On the contrary, the circuit court in this regard correctly followed Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550.

Section 2-607(3)(a) of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2-607(3)(a)) provides:

"(3) Where a tender has been accepted

(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of ...


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