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LAPORTE v. R.D. WERNER CO.
March 24, 1983
KENNETH LAPORTE, PLAINTIFF,
R.D. WERNER COMPANY, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Kenneth LaPorte ("LaPorte") originally filed a three-count
Complaint against R.D. Werner Company, Inc. ("Werner") for
personal injuries sustained while using a Werner-manufactured
1. Count I, which sounded in negligence, has
previously been found time-barred by this Court.
2. Count II is based on strict liability
3. Count III asserts breach of implied warranty
under the Uniform Commercial Code ("UCC").
Werner has now moved for summary judgment as to surviving
Counts II and III on statute of limitations grounds. For the
reasons stated in this memorandum opinion and order, Werner's
motion is granted.
Sometime in 1980 Howard and Lillian Huberty hired LaPorte to
construct an additional room for their Cary, Illinois home.
They also provided LaPorte with their ladder, which had been
manufactured by Werner in June 1967 and purchased by the
Hubertys more than four years before this action was filed. On
or before June 18, 1980*fn2 the ladder apparently buckled
while LaPorte was climbing it, causing him to fall and injure
On July 8, 1982 LaPorte brought this lawsuit. On July 28
Werner filed its Answer, which made no mention of any
affirmative defense. Werner then moved for summary judgment,
contending the Complaint was barred by the two-year
limitations period prescribed for "personal injury" actions
under Ill.Rev.Stat. ch. 110, § 13-202 ("Section 13-202"). When
the motion was initially tendered, LaPorte's counsel conceded
Count I was so foreclosed but argued Counts II and III were
not. In light of LaPorte's admission, this Court granted
Werner's motion as to Count I but reserved judgment on the
others until the parties briefed the issues.
Werner's memoranda altered its position somewhat. While
continuing to rely on Section 13-202 as to Count II, Werner
now acknowledges UCC § 2-725 ("Section 2-725," enacted in
Illinois as Ill.Rev.Stat. ch. 26, § 2-725) controls Count III.
Werner argues Section 2-725's four-year period expired before
this action was filed because the claim "accrued" at the time
of the breach of warranty, not the time of injury.
LaPorte advances three reasons to resist summary judgment:
1. Werner has not filed an appropriate summary
judgment motion on Counts II and III. Its motion
was directed solely to Count I, for the statute
of limitations on which the motion relied
exclusively — Section 13-202 — applies only to
2. Under Fed.R.Civ.P. ("Rule") 8(c) Werner
waived its limitations defenses by failing to
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