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Morris v. Jenkins

decided*fn*: February 24, 1987.

IRENE MORRIS, INDIVIDUALLY AND AS MOTHER AND BEST FRIEND OF TINA MORRIS, PLAINTIFF-APPELLANT,
v.
LINDA J. JENKINS, YURCELL TURAN AND TEAM MACHINE, INC., A CORPORATION, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84-C-6270-John A. Nordberg, Judge.

Wood, Jr., Coffey, and Easterbrook, Circuit Judges.

Author: Per Curiam

Plaintiff-appellant appeals from the decision of the district court finding her diversity action against defendants time-barred. For the reasons set forth below, we affirm the district court.

I.

Plaintiff and her daughter, Illinois residents, sustained personal injuries as the result of an automobile accident with defendants, residents of Indiana, which occurred on July 6, 1982 in Dyer, Indiana. On June 14, 1984, plaintiff filed suit in the Circuit Court of Will County, Illinois. Defendants responded by filing a motion to dismiss contesting the Will County Circuit Court's jurisdiction over the subject matter of the suit and over defendants as parties. Prior to any ruling on defendants' motion to dismiss, plaintiff sought, and was granted, a voluntary non-suit.

Plaintiff refiled her lawsuit in the district court on July 24, 1984 and defendants immediately moved for dismissal on the ground that the suit was barred by the applicable statute of limitations. Relying upon the Erie doctrine,*fn1 the district court properly determined that state substantive law should control the outcome of plaintiff's action; then, also correctly, it applied Illinois choice of law principles to conclude that Indiana law should govern the resolution of this case as Indiana had the most "significant relationship" to the occurrence and to a majority of the parties. See Mech v. Pullman Standard, 136 Ill. App. 3d 939, 941, 484 N.E.2d 776, 777-778, 92 Ill. Dec. 45 (1st Dist. 1984); Quilici v. Second Amendment Foundation, 769 F.2d 414, 416 (7th Cir. 1985).

Indiana ordinarily has a two-year statute of limitations for personal injury actions, Ind. Code § 34-1-2-2, but plaintiff claims that because her original suit in state court was timely filed, her later suit in federal court is "saved" by Indiana's so-called "Journey's Account Statute," Ind. Code § 34-1-2-8,*fn2 which provides:

If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.

Defendants, however, contend that plaintiff's voluntary dismissal followed by her refiling of the action in federal court does not bring plaintiff's suit within the category of actions intended to be "saved" by the Journey's Account Statute. After consideration of the parties' positions, the district court found for defendants and dismissed plaintiff's suit as time-barred. Plaintiff, this time timely, appealed.

II.

Plaintiff raises two issues on appeal: (i) that the district court erred in concluding that Indiana's Journey's Account Statute does not save her suit from being time-barred and (ii) that her daughter's status as a minor tolls the two-year statute of limitations as to the daughter's action against defendants. While we agree with the district court that the Journey's Account Statute would not likely be interpreted to save causes of action such as the instant one, we prefer to base our holding on a slightly broader survey of Indiana case law.

A. Journey's Account Statute

Our duty in this diversity action is to apply the Journey's Account Statute as that law would most likely be applied in this context by the Indiana Supreme Court. Green v. J.C. Penney Auto Insurance Company, Inc., 806 F.2d 759, 761 (7th Cir. 1986). Relevant cases from Indiana's appellate courts, especially where such decisions are in agreement, often provide guidance as to how, in fact, the Indiana Supreme Court would decide a similar case. Therefore, in trying to put ourselves in the Indiana Supreme Court's shoes, we choose to arrive at our interpretation of the Journey's Account Statute after considering more than the single case relied upon by the district court in its decision.

The district court treated Ferdinand Furniture Co. v. Anderson, 399 N.E.2d 799 (Ind. App. 2nd Dist. 1980), as completely dispositive of the instant case. In Ferndinand, the appellate court held that the timely filing of suit in state court followed by the voluntary dismissal and refiling of the action in another state court sometime after the lapse of the applicable statute of limitations, did not constitute the continuation of a timely suit under the Journey's Account Statute. The holding in Ferdinand, and thus the decision ...


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