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BERGHOFF v. R.J. FRISBY MFG. CO.

August 17, 1989

RICHARD BERGHOFF, Plaintiff,
v.
R.J. FRISBY MANUFACTURING CO., A Division Of Western Capital Corporation, Defendant


John A. Nordberg, United States District Judge.


The opinion of the court was delivered by: NORDBERG

JOHN A. NORDBERG, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 The plaintiff, Richard Berghoff, has brought this diversity action against the defendant, R.J. Frisby Manufacturing Co., alleging that the defendant discharged him in retaliation for his efforts to enforce rights available to him under the Illinois Workers' Compensation Act. The defendant filed a motion to dismiss on the sole ground that the plaintiff's case was time-barred under Illinois' two-year statute of limitations for personal injuries. See Ill. Ann. Stat. ch. 110, para. 13-202 (Smith-Hurd 1987). The plaintiff, on the other hand, asserts that Illinois' five-year statute of limitations for "all civil actions not otherwise provided for" applies. See id. para. 13-205. For the following reasons, the court holds that the plaintiff's retaliatory discharge claim is governed by the five-year statute of limitations and, therefore, denies the defendant's motion to dismiss.

 II. FACTS

 For purposes of a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint and must draw all reasonable inferences in the light most favorable to the plaintiff. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). A complaint should not be dismissed for failure to state a claim unless it is beyond doubt that the plaintiff could prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court, however, need not accept as true legal conclusions or opinions that are couched as factual allegations. Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983). Accordingly, the facts of this case, as alleged in the plaintiff's complaint, are as follows.

 From February to August 1983, the plaintiff was an employee of the defendant. In early May 1983, the plaintiff suffered a severe injury to his back while lifting heavy objects at work. The plaintiff informed the defendant of his injury, and the defendant referred him to medical treatment. The plaintiff also sought advice from his own physician and received treatment from May to July. During this time the plaintiff worked when physically able to do so.

 On July 27, the plaintiff reinjured his back and was hospitalized for three days. On August 2, the plaintiff's wife called the defendant and told Bron that the plaintiff would be unable to work for at least another week. On August 9, the plaintiff's physician contacted Martin Boyer Co., the defendant's authorized representative for the adjustment of worker's compensation claims, and informed Boyer that the plaintiff would be unable to work for at least another week. Finally, on August 15 the plaintiff received a letter from the defendant advising him that he had been terminated for failing to report to his employer that he was absent.

 On August 10, 1988, the plaintiff filed this suit in the Circuit Court of Cook County -- four years and 360 days after he had been terminated -- and on August 31 the defendant removed the case to federal court. The plaintiff claims that the defendant discharged him in retaliation for exercising his rights under the Illinois Workers' Compensation Act, in violation of Illinois public policy. The defendant then filed this motion to dismiss for failure to file within the appropriate limitations period.

 III. ANALYSIS

 A. Determining State Law

 The sole issue presented by this motion is which limitations period governs an action for retaliatory discharge -- or, more specifically, whether section 13-202's two-year period or section 13-205's five-year period applies. Section 13-202, which governs the limitations period for an "injury to the person," provides as follows:

 
Personal Injury -- Penalty. Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, except damages resulting from murder or the commission of a Class X felony and the perpetrator thereof is convicted of such crime, shall be commenced within 2 years next after the cause of action accrued but such an action against a defendant arising from a crime committed by the defendant in whose name an escrow account was established under the "Criminal Victims' Escrow Act" shall be commenced within 2 years after the establishment of such account.

 Ill. Ann. Stat. ch. 110, para. 13-202 (footnote omitted; emphasis added). Section 13-205, which provides the limitations period for, among other things, "all civil actions not otherwise provided for," is as follows:

 
Except as provided in Section 2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all ...

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