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HOLLINS v. YELLOW FREIGHT SYSTEM

July 27, 1984

MARSHA HOLLINS, ET AL., PLAINTIFFS,
v.
YELLOW FREIGHT SYSTEM, INC., DEFENDANT.



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

MEMORANDUM OPINION

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).

BACKGROUND

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 January 10, 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 1446.

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
  State.

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 ...


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