Appeal from the Circuit Court of Cook County, the Hon. Thomas
J. O'Brien, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Frank and Catherine Miller, the plaintiffs, filed a complaint in the circuit court of Cook County against Thomas Lockett and Lockett's employer, Lee Way Motor Freight, Inc. (Lee Way), for personal injuries. The plaintiffs alleged that they were injured on March 2, 1980, in Knoxville, Tennessee, when their automobile collided with a vehicle that Lockett was driving for Lee Way. According to the pleadings, the plaintiffs are Illinois residents and Lee Way is an Oklahoma corporation registered to do business in Illinois. There was no service on Lockett, who, it appears, is not an Illinois resident. The circuit court dismissed the complaint with prejudice on the ground that the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, pars. 1 through 12a and 13 through 27) made applicable a time limitation for suits contained in the Tennessee statute of limitations, which would bar the action. The plaintiffs appealed directly to this court under Rule 302(a)(1) (73 Ill. R. 302(a)(1)). While the trial court did not directly state that the section was unconstitutional it appears from its order and opinion that it regarded the residency provisions of section 20 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 21) to be invalid. See Sommer v. Village of Glenview (1980), 79 Ill.2d 383, 385; Garcia v. Tully (1978), 72 Ill.2d 1, 7.
The complaint was filed on March 2, 1982, barely within two years of the stated date of the accident, March 2, 1980. The statute of limitations of Tennessee provides that actions for personal injuries must be commenced within one year after the cause of action accrues. (Tenn. Code Ann. sec. 28-3-104 (1980).) Section 14 of our Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15), on the other hand, provides that actions for personal injuries may be commenced within two years after the action accrues.
Section 20 of our Limitations Act, however, contains a "borrowing provision." It provides:
"When a cause of action has arisen in a state or territory out of this state, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state." (Ill. Rev. Stat. 1979, ch. 83, par. 21.)
Whether that provision is operative here is the issue on this appeal. If the Tennessee statute of limitations is to be applied the plaintiffs' action is barred, but if the Illinois two-year statutory limit is applicable the action was timely filed.
Whether the above borrowing provision is operative is the issue here because this court in Coan v. Cessna Aircraft (1973), 53 Ill.2d 526, interpreted section 20 as having a residency exception in favor of Illinois residents. In Coan, an Illinois resident brought an action against another resident of Illinois for personal injuries received in an airplane accident, which had occurred nearly two years earlier. The action was brought in Illinois, though the accident had occurred in Kentucky, where there also is a one-year statute of limitations for personal injuries. The plaintiff argued to the circuit court that the borrowing provision in section 20 of the Limitations Act was to be applied only if the parties to the suit were nonresidents of this State, but the circuit court dismissed the complaint with prejudice.
This court reversed the judgment of dismissal. It observed that in a number of decisions it had been held that the borrowing provision, section 20, must be read together with section 18 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 19), which had been enacted in the same year. At the time Coan was decided, and before a portion of the section was declared unconstitutional by this court in Haughton v. Haughton (1979), 76 Ill.2d 439, cert. denied (1980), 444 U.S. 1102, 62 L.Ed.2d 789, 100 S.Ct. 1069, section 18 provided:
"If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action. But the foregoing provisions of this section shall not apply to any case, when, at the time the cause of action accrued or shall accrue, neither the party against nor in favor of whom the same accrued or shall accrue, were or are residents of this state." Ill. Rev. Stat. 1969, ch. 83, par. 19.
The court judged that because section 18 explicitly provided that it was not operative if both parties are nonresidents of Illinois, section 20 is operative only in the cases not covered by section 18, that is, only where all of the parties are nonresidents of this State. Otherwise, the court observed, the two sections would be in conflict in certain situations, such as where the parties are residents of Illinois, but the action arose outside this State and the defendant leaves Illinois. In so holding, this court affirmed much earlier interpretations of the statute by the appellate court. See Orschel v. Rothschild (1925), 238 Ill. App. 353; Chicago Mill & Lumber Co. v. Townsend (1916), 203 Ill. App. 457; Delta Bag Co. v. Frederick Leyland & Co. (1912), 173 Ill. App. 38.
Under the holding in Coan, then, the borrowing provision in section 20 would not be applicable here, as the plaintiffs are Illinois residents, and the plaintiffs could proceed with their action. Lee Way argues, though, and the argument was accepted by the circuit court, that the interpretation of a residence exception in the borrowing provision of section 20 is no longer available in view of the decision in Haughton v. Haughton (1979), 76 Ill.2d 439, cert. denied (1980), 444 U.S. 1102, 62 L.Ed.2d 789, 100 S.Ct. 1069.
In Haughton, this court held that the portion of section 18 that restricted the application of the tolling provision to Illinois residents was violative of the equal protection clauses of the Constitution of the United States (U.S. Const., amend. XIV) and of the State of Illinois (Ill. Const. 1970, art. I, sec. 2). This court pointed to decisions in which the Supreme Court held invalid State statutes that denied benefits to persons unable to meet residency requirements. (E.g., Shapiro v. Thompson (1969), 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (striking a statute that denied welfare benefits to those who had not resided in the State a year).) Because this court saw no legitimate State interest served by the residence classification in section 18, and because no legitimate interest or other rational basis for it was offered by the parties, this court held the residence classification in section 18 invalid under even a minimal scrutiny or rational-relationship test. 76 Ill. 439, 446.
Lee Way criticizes this court's decision in Coan, and secondly, argues that Haughton, by holding invalid the residency provision of the tolling provision in section 18, implicitly overruled Coan. Finally, Lee Way says, too, that under Haughton any residency exception made to the borrowing provision in section 20 would be likewise unconstitutional.
In criticizing the holding in Coan, Lee Way simply repeats the arguments that were advanced in Coan, and that were rejected by this ...