I believe that my view is further supported by other recent
judicial discussions of the Survival Act. In a more recent
opinion issued in McDaniel v. Johns-Manville Sales Corp.,
542 F. Supp. 716 (N.D.Ill. 1982), Judge Shadur ruled that "if
the . . . employees' claim would be barred by the two year
statute of limitations, so would their representatives' actions
under the Survival Act." Id. at 717. Under this rule, if the
decedents should have known of their injury and its wrongful
causation more than two years prior to their filing of lawsuits,
then their actions were barred by the statute of limitations and
no proper claim remained to survive their death.
This holding is not unreasonable. What it means is that a
survivor steps into the shoes of the decedent: if the decedent
could not have properly maintained an action, neither can the
A fair application of this rule, it seems to me, necessitates
application of its converse with equal force. A survivor takes
the rights of the decedent — no more and no less. Therefore if
the decedent would have had a cause of action during his
lifetime, but for the invidious nature of his disease and his
inability to link the injury to the wrongdoer, then that cause of
action, when discovered, should survive his death. Adoption of
any other rule will represent a relapse to the incongruous
injustice which the Supreme Court expressly wanted to avoid when
"the injury caused is so severe that death results, [and] the
wrongdoer's liability [is thereby] extinguished." Murphy v.
Martin Oil, supra. I do not believe the Illinois Supreme Court
would impose on survivors the statute of limitations constraints
which decedent's would have faced had they lived without also
allowing them the benefits of the "discovery rule" which would
have inured to them had their injuries not been so severe as to
cost them their lives.
Judge Shadur applied the same constraints to both the Survival
Act and the Wrongful Death Act. Again, I do not disagree with
that result. However, the reasoning behind this identical
treatment of the statutes when it comes to limiting survivor's
benefits undermines the purported distinction between the two
acts when it comes to application of the discovery rule.
For the foregoing reasons, I conclude that the "discovery rule"
applies in actions brought under the Illinois Survival Act and
the Wrongful Death statute.
This conclusion represents only the initial step in the
resolution of defendants' motion to dismiss. Although I have
concluded that the "discovery rule" should apply in this case,*fn5
it is a separate, factual determination whether or not
application of that rule is sufficient to prevent this
plaintiff's case from being dismissed.
Defendants believe it is not. Even if the "discovery rule"
tolled the statute, they argue, the two year limitations period
began running upon plaintiff's discovery of the claim, during or
before December, 1980, and expired two years later, prior to the
filing of the complaint in January, 1983.
Plaintiff has averred in her complaint that she could not have
discovered defendants' misconduct and culpability until "on or
after January, 1981":
15. Plaintiff, exercising reasonable diligence,
discovered the aforesaid conduct, misconduct, and
culpability of Defendants, and each of them, on or
after January, 1981, when she had received the advice
of counsel of the possible connection between her
husband's illness and death and exposure to benzine.
Such attorney was first contacted in December, 1980
and advised Plaintiff in January, 1981 that she might
have a meritorious claim. At the time that BYRON J.
EISENMANN was first diagnosed as having chronic
lymphocytic leukemia, he or Plaintiff did not know
that such illness was due to exposure to benzine.
BYRON J. EISENMANN or Plaintiff could not have
discovered the culpability of Defendants sooner
because they did not possess the technical knowledge
required to make such discovery. BYRON J. EISENMANN
or Plaintiff could not discover such culpability
sooner because they were not given an informed
diagnosis of the cause of said chronic lymphocytic
leukemia at the time of the initial diagnosis or
thereafter. BYRON J. EISENMANN or Plaintiff did not
seek an informed diagnosis at the time of the initial
diagnosis because they were not sophisticated in such
matters, did not possess any technical knowledge, and
had no knowledge or information from Comet Die or any
third person which put them on notice. Plaintiff
could not know in the exercise of reasonable care of
the tortious cause of the injury to and death of
BRYON J. EISENMANN and the culpability of the
Defendants until such time as Plaintiff learned of
such culpability through the aforementioned advice of
counsel. Plaintiff could not know until such advice
of the culpability of Defendants, and each of them.
Complaint ¶ 15.
The Illinois Supreme Court has made clear that under the
"discovery rule," "the event which triggers the running of the
statutory period is not the first knowledge the injured person
has of his injury, and, at the other extreme, we have also held
that it is not the acquisition of knowledge that one has a cause
of action against another for an injury he suffered." Knox
College v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 729,
430 N.E.2d 976, 980 (1981). "[W]hen a party knows or reasonably
should know both that an injury has occurred and that it was
wrongfully caused, the statute begins to run and the party is
under an obligation to inquire further to determine whether an
actionable wrong was committed." Nolan v. Johns-Manville
Asbestos, supra, 52 Ill.Dec. at 5, 421 N.E.2d at 868.
Applying these principles to the present case, it would appear
that plaintiff at least suspected a link between her husband's
death and wrongful conduct by others in December, 1980, because
she sought legal advice on the issue at that time. Moreover, the
Court has made clear that the statute begins to run as soon as
"the injured person becomes possessed of sufficient information
concerning his injury and its cause [such that] a reasonable
person [would be put] on inquiry to determine whether actionable
conduct is involved." Knox College, supra, 58 Ill.Dec. at
729-730, 430 N.E.2d at 980-81.
Thus, if in December of 1980 plaintiff had "sufficient"
knowledge about the alleged cause of her husband's death, then
the statute commenced running at that time. The fact that she
only began her "inquiry" then, and did not definitively know that
she had an actionable claim until January, 1981, would be
Despite this most likely rendition of the facts and its legal
implications for plaintiff, I am not able to dismiss plaintiff's
claim at this point. In each and every case in which the Illinois
Supreme Court has articulated the foregoing discovery principles,
it has also stressed that "[i]n many, if not most, cases the time
at which an injured party knows or reasonably should know both of
his injury and that it was wrongfully caused will be a disputed
question to be resolved by the finder of fact." Witherell
v. Weimer, 85 Ill.2d 146, 156, 52 Ill.Dec. 6, 11, 421 N.E.2d 869,
874 (1981). See also, Knox College, supra; Nolan, supra.
In Knox College, the Supreme Court said it was unable to
determine, as a matter of law, whether knowledge of certain roof
leaks would put a reasonable person on notice as to a defect in
the roof, since leaks of the particular type experienced, at the
particular stage noticed, might be normal and easily corrected.
Likewise, in Nolan the Supreme Court would not say whether the
plaintiff had gained "sufficient information" when he initially
received generalized brochures about asbestosis or when he
finally was medically diagnosed as having that condition, and was
told it resulted from his work environment.
Similarly, in this case, it is impossible to know with
certainty from the pleadings whether, as a matter of law,
plaintiff had "sufficient information" in December, 1980 so as to
trigger the limitations period. It is unclear whether plaintiff
used her attorney to investigate and procure new, critical
medical and industry records, and other related facts, or whether
the lawyer merely reached legal conclusions based on facts
already known and supplied to him in December by plaintiff.
Finally, the Court is mindful that in considering the
sufficiency of a complaint to withstand a Rule 12(b)(6) motion to
dismiss, it must appear "beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 101-02, 2 L.Ed.2d 80 (1957). The Court must accept as true
all material facts well pleaded in the complaint and must view
the alleged facts and make all reasonable inferences in the light
most favorable to the plaintiff. City of Milwaukee v. Saxbe,
546 F.2d 693, 704 (7th Cir. 1976). See also, Mescall v. Burrus,
603 F.2d 1266 (7th Cir. 1979). Plaintiff here has averred that she
did not learn that the decedent's injury was caused by the
wrongful acts of others until January, 1981.
With the foregoing in mind, defendants' motion to dismiss
Counts I and II will be denied at the present time. The Court
orders the parties to proceed immediately with discovery on the
threshold issue of whether plaintiff had "sufficient knowledge"
in December, 1980, such that the statute of limitation began
running at that time.
Defendants also seek to dismiss Count III, plaintiff's breach
of warranty claim. For the following reasons, this portion of
defendants' motion is granted.
Under Illinois law, it appears that "[a]n employee of the last
purchaser of goods may qualify as a third party beneficiary under
section 2-318." Knox v. North American Car Corp., 80 Ill. App.3d 683,
35 Ill.Dec. 827, 399 N.E.2d 1355 (1st Dist. 1980).
Therefore, plaintiff seems to have standing to sue defendants on
a breach of warranty action.
However, even if this is so, plaintiff's claim is barred under
the statute of limitations provision governing Illinois U.C.C.
actions. Section 2-725 of the U.C.C. (Ill.Ann.Stat. ch. 26. ¶
2-725 (Smith-Hurd 1976)) provides:
(1) An action for breach of any contract for sale
must be commenced within 4 years after the cause of
action has accrued. * * *
(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.
Since there is no suggestion that the warranty asserted
"explicitly extend[ed] to future
performance," the four year limitation applies "regardless of
[plaintiff's or decedent's] lack of knowledge of the breach."
It is clear from the complaint that Mr. Eisenmann had last had
contact with benzine in 1976. Any warranty on which suit could be
brought thus must have been made on or before that time. The
limitations period governing Count III therefore expired, at the
latest, four years later in 1980, a full three years before the
commencement of this lawsuit.
Although plaintiff invites the Court to apply the more lenient
tort limitations provision, this Court must decline to do so.
Plaintiff urges that implied warranty actions are more akin to
strict products liability cases than contract claims. Some Courts
have concurred and have agreed to apply their state's tort
statute of limitations to cases such as the instant one. See
Witherspoon v. General Motors Corporation, 535 F. Supp. 432
(W.D.Mo. 1982) and cases cited therein.
This Court, however, must apply Illinois law. In Moorman Mfg.
Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746,
435 N.E.2d 443 (1982), the Illinois Supreme Court applied the U.C.C.
statute of limitations to a breach of warranty count set forth in
a products liability case. Furthermore, although the Court did
not consider the alternative application of the tort limitations
period for the warranty claim, the bulk of the Court's opinion
centered on the important distinctions which the Court saw
between tort and U.C.C. warranty remedies.*fn6 In these
circumstances, it would ill behoove this Court to adopt a rule
which runs so contrary to the direction which the highest court
of the state has so recently chosen.
The U.C.C. statute of limitations must be applied to
plaintiff's warranty count, and it is dismissed as untimely.
For the reasons set forth above, defendants' motions to dismiss
Counts I and II are denied. However, the parties are directed to
undertake discovery necessary to resolution of existing factual
questions immediately. Defendants' motions to dismiss Count III
It is so ordered.