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United States District Court, Northern District of Illinois, E.D

March 24, 1983


The opinion of the court was delivered by: Shadur, District Judge.


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 step ladder:

    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.

Factual Background*fn1

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 his arm.

Procedural Posture

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
  Count I.

    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 action:

  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 defense.

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 crystal-clear:

  (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 law).*fn5

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.

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