United States District Court, Northern District of Illinois, E.D
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
plead them in its Answer.
3. Count III is not barred by Section 2-725
because its limitation period began to run at the
date of injury — the earliest time the ladder's
allegedly defective condition could have been
None of those arguments survives scrutiny.
Analysis of LaPorte's Assertions
LaPorte's first contention is groundless. Werner's initial
motion unqualifiedly sought summary judgment on the entire
Now comes Defendant, R.D. Werner, Inc. by its
attorney Patrick J. Muldowney, hereby moving for
a summary judgment in its favor against plaintiff
Kenneth LaPorte. . . .
True enough, Section 13-202 — the only statute of limitations
provision initially mentioned in the motion — is inapplicable
to Count III.*fn3
But that does not mean the
motion itself was confined to Counts I and II (apparently when
the motion was filed Werner's counsel mistakenly thought
Section 13-202 applied to all LaPorte's claims). Nor does
Werner's original failure to call upon the appropriate
limitations statute for Count II preclude it from doing so in
its supporting memorandum, particularly when LaPorte's
opportunity to rebut the new argument is unimpaired.*fn4
Though somewhat more cogent, LaPorte's second assertion
— that Werner waived its statute of limitations defenses —
must also be rejected. Old case law in this Circuit did refuse
to allow a defendant to seek summary judgment on the strength
of an affirmative defense not pleaded in its answer. See Roe v.
Sears Roebuck & Co., 132 F.2d 829, 832 (7th Cir. 1943). But
under Rule 15(a)'s liberal standards a defendant could usually
avert that outcome by amending its answer to include the
Perhaps to avoid such meaningless two-step procedural
exercises, our Court of Appeals signalled its preference for
a more pragmatic approach in Baker v. Chicago, Fire & Burglary
Detection, Inc., 489 F.2d 953, 955 (7th Cir. 1973). Baker
reached the merits of a defense raised for the first time in a
summary judgment context because plaintiff did not "appear to
have been unfairly disadvantaged by [defendant's] failure to
plead the defense in his answer" — the same type of
"prejudice" standard district courts regularly employ in
determining whether to permit amendments to pleadings. See 6
Wright & Miller, Federal Practice & Procedure § 1485, at 420.
Given Baker's gloss on Rule 8(c), Werner's non-assertion of
limitations defenses in its answer is not a waiver. There is no
indication (or claim) LaPorte will suffer any prejudice, so as
to preclude Werner from curing any claimed waiver by a Rule
15(a) amendment to its answer.
Finally, LaPorte's effort to engraft a discovery exception
onto Section 2-725 (the limitations statute applicable to
implied warranty claims) contravenes both its unambiguous
language and Illinois case law. Its provisions are
(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.
(2) A cause of action accrues when the breach
occurs, regardless of the aggrieved party's lack
of knowledge of the breach. A breach of warranty
occurs when tender of delivery is made, except
that where a warranty explicitly extends to
future performance of the goods and discovery of
the breach must await the time of such
performance the cause of action accrues when the
breach is or should have been discovered.
Section 2-725(2) thus expressly limits the discovery
exception to warranties that explicitly guarantee future
performance. By proclaiming the general rule that a cause of
action accrues when the breach occurs, "regardless of the
aggrieved party's lack of knowledge of the breach," Section
2-725(2) denies applicability of the discovery doctrine to all
implied warranty actions. Such unwritten guaranties by
definition can never "explicitly" encompass future performance.
Few Illinois authorities touch on this issue, but they
uniformly support this straightforward reading. Beckmire v.
Ristokrat Clay Products Co., 36 Ill. App.3d 411, 412-13,
343 N.E.2d 530, 532 (2d Dist. 1976); Wilson v. Massey-Ferguson,
Inc., 21 Ill. App.3d 867, 871, 315 N.E.2d 580, 582-83 (4th
Dist. 1974); Jones & Laughlin Steel v. Johns-Manville Sales,
626 F.2d 280, 290-91 (3d Cir. 1980) (applying Illinois
Against these solid Illinois precedents, LaPorte's reliance
on a district court decision applying Texas law, Morton v.
Texas Welding & Manufacturing, 408 F. Supp. 7, 11 (S.D.Tex.
1976), is fruitless. Erie v. Tompkins principles foreclose its
applicability, and the relationship between the Texas UCC and
prior Texas law was entirely different from the comparable
Illinois situation in any event.
Accordingly, Section 2-725's clock started ticking when
Werner's implied warranty was breached — when the allegedly
defective ladder was delivered to the Hubertys. Because this
lawsuit was instituted more than four years after the date of
delivery, Count III is barred by Section 2-725.
There is no genuine issue of material fact, and Werner is
entitled to a judgment as a matter of law on all three Counts.
This action is dismissed with prejudice.