The opinion of the court was delivered by: Grady, District Judge.
This is a personal injury action. Defendant Yellow Freight
System, Inc.*fn1 has moved for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c), on the ground that plaintiffs'
action is time-barred. Because the parties have attached to
their pleadings affidavits, and because we have considered
these affidavits, we construe defendant's motion as one for
summary judgment. See Fed.R.Civ.P. 12(c).
On March 10, 1981, plaintiffs Marsha and Frank Hollins were
allegedly injured when a car they were riding in collided with
a truck operated by defendant's agent in Hammond, Indiana. On
May 28, 1982, 14 1/2 months after the collision, plaintiffs
filed suit in the Circuit Court of Cook County. On January 11,
1983, the Hollins' lawsuit was dismissed voluntarily. On
1984, within one year of the voluntary dismissal but nearly
three years after the accident, plaintiffs refiled the
complaint in the Circuit Court of Cook County. Defendant
removed the action to this court under 28 U.S.C. § 1441 and
Defendant now contends that pursuant to the Illinois
"borrowing act," Ill.Rev.Stat. ch. 110, ¶ 13-210 ("§ 13-210"),
we should apply Indiana's personal injury statute of
limitations to determine whether plaintiffs' action was timely
filed. Defendant concludes that the action was not timely filed
under Indiana law and urges that we dismiss the lawsuit.
Plaintiffs argue in response that the Illinois borrowing act
is inapplicable because defendant is an Illinois resident.
According to plaintiffs, the Illinois rather than the Indiana
statute of limitations therefore controls, and the action was
timely filed under the Illinois limitations provisions. In the
alternative, plaintiffs argue that even if the Indiana statute
controls and bars this action, defendant is estopped from
relying on the limitations defense.
Thus, we must determine (1) which state's limitations
provisions control this case; (2) whether the action was
timely filed under the relevant provisions; and (3) whether in
any event the defendant is equitably estopped from asserting
the statute of limitations.
I. WHICH STATE'S STATUTE OF LIMITATIONS GOVERNS?
Since our jurisdiction in this case rests on diversity of
citizenship, we must decide the issues presented as though we
were an Illinois state court. Klaxon Co. v. Stentor Electric
Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85
L.Ed. 1477 (1941).
The Illinois borrowing act provides:
§ 13-210. Foreign limitation. 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
Illinois courts apply § 13-210 and borrow another state's
statute of limitations only where: (a) none of the parties are
Illinois residents, see Miller v. Lockett, 98 Ill.2d 478, 75
Ill.Dec. 224, 457 N.E.2d 14 (1983); Coan v. Cessna Aircraft,
53 Ill.2d 526, 293 N.E.2d 588 (1973); Panchinsin v. Enterprise
Companies, 117 Ill. App.3d 441, 72 Ill.Dec. 922, 453 N.E.2d 797
(1st Dist. 1983);*fn2 and (b) the foreign statute of
limitations is shorter than that of Illinois, see Williams v.
Fulton County Jail, 575 F. Supp. 306, 308 n. 3 (N.D.Ill. 1983);
Norman v. Kal, 550 F. Supp. 736, 738 (N.D.Ill. 1982); Comment,
Foreign Statute Of Limitations: Borrowed Only To Shorten The
Period Of Limitations Of The Forum, 1962 U.Ill.L.F. 452. Thus,
if either party to this lawsuit is an Illinois resident, or if
the Indiana statute of limitations is not shorter than the
parallel Illinois provision, we may not borrow Indiana's
statute and we will apply that of Illinois.
A. Is Either Party A Resident of Illinois?
Plaintiffs, who are not residents of Illinois, argue that
defendant is a "resident" as that term is used in interpreting
and applying the borrowing act. Plaintiffs' argument is
premised on the facts that defendant, a foreign corporation,
is licensed to do business in ...