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TAYLOR v. RAYMOND CORP.

September 7, 1989

THERESA TAYLOR and LARRY L. TAYLOR,
v.
THE RAYMOND CORPORATION, Defendant. THE RAYMOND CORPORATION, Third-Party Plaintiff, v. COTTER & COMPANY, Third-Party Defendant


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE.

 Plaintiffs Theresa Taylor and Larry Taylor bring this diversity suit against defendant Raymond Corporation seeking recovery under strict liability theories for injuries Theresa sustained on December 10, 1986, while operating a forklift truck designed and manufactured by the defendant. The defendant has moved for summary judgment on the grounds that the plaintiffs' claims are barred by the governing Illinois statute of repose. For the reasons set forth below, the motion will be granted.

 FACTS

 DISCUSSION

 Section 13-213 (formerly Ill.Rev.Stat. 1979 ch. 83, para. 22.2) establishes periods of repose for product liability actions based on the doctrine of strict liability under Illinois law. Section 13-213(b) provides that, "subject to the provisions of subsections (c) and (d)," any such action must be commenced "within the applicable limitations period and, in any event, within 12 years from the date of the first sale, lease or delivery of possession by a seller or 10 years from the date of the first sale, lease or delivery of possession to its initial user, consumer or other non-seller, whichever period expires earlier . . . ." *fn1" Section 13-213(c), in turn, provides that, when such an action is predicated on an alteration, modification or change in the product subsequent to the first sale to its initial user, the action must be commenced "within 10 years from the date such alteration, modification or change was made." Sec. 13-213(c)(2). Finally, § 13-213(d) provides that:

 
(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred. . . .

 Theresa's injury occurred on December 10, 1986, which was less than 12 years after the defendant first sold the truck (i.e., February 25, 1976), but more than 10 years after the truck's sale to Cotter, its initial user (also on February 25, 1976). According to the defendant, since § 13-213(b) provides that the period of repose expires at the earlier of 12 years from the first sale to anyone or 10 years from the first sale to an initial user, the plaintiffs' claims are barred. *fn2"

 The plaintiffs, however, point to § 13-213(d). This subsection, the plaintiffs note, provides (with emphasis added) that when the injury occurs "within any of the periods provided by subsection (b) and paragraph (2) of subsection (c)," the period of repose extends two years from the date the plaintiff learns of his injury. Since Theresa's injury occurred within one of the periods provided by these subsections -- specifically, within 12 years from the date of first sale -- the plaintiffs argue that the period of repose did not expire until two years from the date Theresa learned of her injury -- that is, on December 10, 1988. Since the plaintiffs filed suit in August, 1988, they contend that their claims are timely.

 The defendant attacks the plaintiffs' reading of the statute on two fronts. The defendant first argues that subsection (d) only applies to injuries that are not immediately discoverable, and thus has no application to Theresa's injury. The defendant then argues that, even if subsection (d) does apply here, the "whichever period expires earlier" language of subsection (b) ("the Expiration Clause") establishes that a plaintiff receives the two-year extension of subsection (d) ("the Extension Clause") only if his injury occurs within the earlier of subsection (b)'s 10-year and 12-year alternative repose periods.

 The defendant's first argument centers on a recent Illinois appellate court ruling, Elliott v. Sears, Roebuck & Co., 173 Ill. App. 3d 383, 527 N.E.2d 574, 123 Ill. Dec. 111 (4th Dist. 1988), appeal denied, 123 Ill. 2d 557, 128 Ill. Dec. 889, 535 N.E.2d 400 (1988). In that case, a radial saw was manufactured and sold to Sears in 1965. Sears sold the saw to its initial user in 1982. The next year, the plaintiff cut his hand while using the saw; the following year he filed suit. The defendant moved for summary judgment under § 13-213(b) on the grounds that the plaintiff commenced his action more than 12 years after the first sale. The plaintiff, in turn, argued that subsection (d) saved his claim because he had sustained the injury within ten years of the first sale to the initial user, and had filed suit within two years of his injury. The Illinois Appellate Court dodged this issue. It looked to the language of subsection (d) and concluded that this subsection only applies when "the injury is not immediately discoverable by the injured party." Id. at 394-95. Since the plaintiff knew that he was injured at the moment he cut his hand, the court held that he could not rely on subsection (d) at all. By the express terms of § 13-213(b), his action therefore was barred.

 Section 13-213(d), however, says nothing about the immediate discoverability of an injury. The subsection provides that a plaintiff who sustains an injury within the repose periods provided by subsections (b) and (c) must file suit within two years from "the date on which [he] knew, or through the use of reasonable diligence should have known" of his injury. Nowhere does subsection (d) indicate that a plaintiff who sustains his injury within the repose period, and discovers his injury when he sustains it, cannot rely on the two-year extension.

 Elliott's reading of subsection (d) stems from the appellate court's belief that the sole purpose of this subsection was to engraft the so-called discovery rule onto the repose statute. See id. at 394-95 (citing Eldredge & Houlihan, "Limitations of Actions: Strict Liability in Tort -- The Legislature Has Intervened," 67 Ill.B.J. 214 (1978). Under subsection (b), a plaintiff who sustains an injury within the repose period, but who cannot reasonably discover it before the period expires, loses his causes of action without any opportunity to pursue it. Subsection (d) prevents this from happening by giving him two years from the date he discovers the injury -- even if the discovery takes place after the repose period expires -- so ...


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