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WEST v. ROCKFORD MEM. HOSP.

November 5, 1992

JAMES WEST, a minor, by his Mother and Next Friend, PAMLYN N. GROVE, Plaintiff,
v.
ROCKFORD MEMORIAL HOSPITAL W.C. FULLER, M.D., and CHARLES WASHINGTON, M.D., Defendants.



The opinion of the court was delivered by: PHILIP G. REINHARD

 INTRODUCTION

 Before this court is defendant's, *fn1" Charles Washington, M.D., motion to dismiss the amended complaint filed by plaintiff, James West, a minor. *fn2" Plaintiff has alleged that in November 1976 defendant was negligent in caring for and treating plaintiff. Plaintiff has further alleged that as a direct and proximate cause of defendant's negligence, he has been "continuously disabled both mentally and physically and totally without understanding or capacity to make or communicate decisions regarding his person, estate or financial affairs."

 Defendant asserts in his motion to dismiss that plaintiff's cause of action is time barred by ILL. REV. STAT. ch. 110, P 13-212 (1989). Paragraph 13-212(b) provides:

 ILL. REV. STAT. ch. 110, P 13-212(b) (1989). However, P 13-212(c) provides an exception that tolls the statute of limitations:

 If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.

 ILL. REV. STAT. ch. 110, P 13-212(c) (1989).

 It is undisputed that plaintiff did not meet the eight-year statute of limitations in P 13-212(b). However, plaintiff claims that he is "legally disabled" under P 13-212(c), and therefore, the statute of limitations has been tolled. Defendant's basis for dismissal is that plaintiff has not adequately pled that he is "legally disabled" in order to toll the statute of limitations.

 Defendant essentially argues that in order to be "legally disabled" under P 13-212(c) a court must adjudicate the person disabled, and because plaintiff was never adjudicated disabled, he is not "legally disabled." Plaintiff maintains, however, that the allegations in his complaint have adequately pled that he was "legally disabled" when the cause of action accrued.

 DISCUSSION

 Under the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 649 (1938), a federal court exercising jurisdiction over a case grounded on diversity of citizenship must apply the pertinent state's substantive law. Prince v. Zazove, 959 F.2d 1395, 1400-01 (7th Cir. 1992); Strachan v. Nesbit, 202 F.2d 216, 218 (7th Cir. 1953). If the state supreme court has not decided the issue, then the district court must look to cases decided by the intermediate appellate courts having addressed the issue, and is bound by those decisions absent a good reason to think the state supreme court would hold otherwise. Shields Enterprises, Inc. v. First Chicago Corp., No. 91-2134, slip op. at 15-16 (7th Cir. Sept. 21, 1992).

 In the present case, the Illinois Supreme Court has not addressed the issue of "legal disability" as provided in ILL. REV. STAT. ch. 110, P 13-212. However, the issue was squarely addressed in an Illinois appellate court decision, Passmore v. Walther Memorial Hosp., 152 Ill. App. 3d 554, 504 N.E.2d 778, 105 Ill. Dec. 493 (1st Dist. 1987), appeal denied, 511 N.E.2d 431 (1987). In Passmore, the plaintiff was severely injured on May 16, 1962. He did not reach majority until September 13, 1979. The plaintiff was adjudicated legally disabled four years later and filed his complaint in 1984. The defendants moved to dismiss the action claiming that under P 13-212 the plaintiff had to bring the cause of action within two years of reaching majority. The defendants argued that the statute of limitations was not tolled because the plaintiff was not adjudicated legally disabled during this two-year period. Passmore, 152 Ill. App. 3d at , 504 N.E.2d at 779.

 The plaintiff alleged in his complaint that, "on or about May 16, 1962, Edward Passmore, became and continues to be disabled, totally without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his person and totally unable to manage his estate or financial affairs." Passmore, 152 Ill.App.3d at , 504 N.E.2d at 779. The plaintiff contended ...


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