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September 20, 1989

CELOTEX CORPORATION, et al., Defendants

Charles P. Kocoras, United States District Judge.

The opinion of the court was delivered by: KOCORAS


 This matter comes before the court on the joint motion of defendants to dismiss counts III-VIII of the plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiffs have responded by requesting voluntary dismissal of counts IV, VI and VII, and seek to dismiss these counts without prejudice. Defendants' Motion to Dismiss counts III, V & VIII is denied in part and granted in part. Plaintiffs may dismiss counts IV, VI and VII without prejudice.


 Plaintiffs' 8-count complaint alleges that plaintiff Steve Belkow was injured as a result of repeated exposure to asbestos-containing products manufactured and distributed by the defendants. Plaintiff Steve Belkow's exposure to the products occurred from 1951 through 1979, during the course of plaintiff's employment as a carpenter and tiler. Complaint paras. 19, 20. Plaintiff contends that the "inhalation and ingestion of asbestos, asbestos dust and asbestos fibers directly and proximately caused plaintiff Steve Belkow, to develop an asbestos related disease, including, but not limited to: Mesothelomia." Complaint para. 21. Each of the defendants is alleged to have manufactured, distributed or otherwise placed in the stream of commerce asbestos-containing products to be purchased and used by the public. Complaint para. 17.

 In order to have a claim dismissed under Rule 12(b)(6), the moving party must meet a high standard. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits of the case. Under the "simplified notice pleading" of the Federal Rules of Civil Procedure, the allegations of a complaint should be construed liberally and "the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); see also Lewis v. Local Union No. 100 of Laborers' Intern. Union of North America, AFL-CIO, 750 F.2d 1368 (7th Cir. 1984). Generally, "mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985).

 When considering a defendant's motion to dismiss the Court must view the complaint's allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Conley, 355 U.S. at 45, 78 S. Ct. at 102. All well-pleaded facts and allegations in the plaintiff's complaint must be taken as true, Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986), and the plaintiff is entitled to all reasonable inferences that can be drawn therefrom. "Furthermore, a complaint is not required to allege all, or any, of the facts logically entailed by the claim. . . . [A] complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing." American Nurses' Ass'n v. State of Illinois, 783 F.2d 716, 727 (7th Cir. 1986).

 I. Defendants' Motion to Dismiss Plaintiffs' Breach of Warranty Claim

 Because jurisdiction over this dispute is based on diversity of citizenship, see 28 U.S.C. § 1332, this court must apply Illinois' substantive law to the case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). A state's statutes of limitation are considered part of its substantive law. Anabaldi v. Sunbeam Corp., 651 F. Supp. 1343 (N.D.Ill. 1987). Therefore, to determine whether the discovery rule applies to a breach of warranty claim, this court must examine Illinois law.

 The Uniform Commercial Code ("UCC"), codified under Illinois statute, provides the statute of limitations for personal injury claims premised on a breach of implied warranty. Berry v. G.D. Searle, 56 Ill.2d 548, 554, 309 N.E.2d 550 (1974). The statute provides in pertinent part that:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action accrued . . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made.

 Ill.Rev.Stat. ch. 26, para. 2-725(1),(2) (1987). The statute clearly imposes a 4-year limitations period on warranty claims which commences to run upon accrual of the cause of action. The cause of action accrues upon tender of the product "regardless of the aggrieved party's lack of knowledge of the breach." Illinois courts have strictly construed this provision. Hagen v. Richardson-Merrell, Inc., 697 F. Supp. 334, 341 (N.D.Ill. 1988) ...

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