United States District Court, Central District of Illinois
March 16, 1994
JAMES CRISMAN, PLAINTIFF,
PEORIA & PEKIN UNION RAILWAY COMPANY, A CORPORATION, DEFENDANT. PEORIA & PEKIN UNION RAILWAY COMPANY, A CORPORATION, THIRD-PARTY PLAINTIFF, V. PLM INTERNATIONAL, INC., A CORPORATION, AND WESTINGHOUSE AIR BRAKE COMPANY, A CORPORATION, AND GENERAL ELECTRIC RAILCAR SERVICES CORPORATION, THIRD-PARTY DEFENDANTS.
The opinion of the court was delivered by: Mihm, Chief Judge.
This matter is before the Court on third-party defendant
General Electric Railcar Services Corporation's ("GERSCO") Motion
for Summary Judgment against third-party plaintiff Peoria & Pekin
Union Railway Company ("P & PU") (# 71) and third-party defendant
PLM International, Inc.'s ("PLM") Motion for Summary Judgment
against third-party plaintiff P & PU (# 76). For the reasons set
for below, both Motions for Summary Judgment are GRANTED.
Plaintiff James Crisman ("Crisman") was injured when he fell
off a railroad car while working for P & PU. Crisman sued P & PU
alleging violations of the Federal Employers' Liability Act
(45 U.S.C. § 51 et seq.) and the Safety Appliance Act (45 U.S.C. § 1-21
Crisman claims that the hand brake on the railroad car he was
operating malfunctioned and caused him to fall to the ground and
sustain injury to his right leg. P & PU filed a third-party
complaint against GERSCO and PLM pursuant to the Joint Tortfeasor
Contribution Act (740 ILCS 100/2). In its third-party complaint,
P & PU claims that if it is found liable to plaintiff Crisman,
then GERSCO and PLM are liable to P & PU based on a theory of
contribution. P & PU alleges that when GERSCO and PLM placed the
Railroad Car in the stream of commerce,
it was defective and unreasonably dangerous in one or
more of the following respects[:]
(a) there was a defective weld in the big link of
the bell crank chain; and
(b) the big link for the bell crank chain was
incapable of sustaining the stress or strain to be
placed upon it in normal and reasonably to be
In 1978, North American Car Corporation (NACC) manufactured the
Railroad Car involved in plaintiff Crisman's accident (the
"Railroad Car"). In April 1978, the Railroad Car was leased to
its first user, Mississippi Chemical Corporation. No repair
records for the Railroad Car dated before December 27, 1985
exist. NACC had a policy of destroying such records after a
period of time. On July 3, 1986, NACC sold the Railroad Car to
GERSCO. NACC transferred all available repair records for the
Railroad Car to GERSCO. On December 29, 1988, GERSCO sold the
Railroad Car to PLM and transferred all available repair records
to PLM. On May 31, 1991, plaintiff Crisman's accident occurred.
On December 31, 1991, PLM sold the Railroad Car to U.S. Rail and
transferred then existing repair records. No copies of these
records were kept by PLM. On April 8, 1992, plaintiff Crisman
filed this action against P & PU. P & PU sued PLM for
contribution on July 16, 1992. P & PU sued GERSCO for
contribution on December 28, 1992.
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
"Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party there is no
`genuine' issue for trial." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). When considering a motion for summary
judgment, this Court views the evidence in the light most
favorable to the non-moving party. Biddle v. Martin,
992 F.2d 673, 675 (7th Cir. 1993).
Third-party defendants GERSCO and PLM filed motions for summary
judgment based on the statute of repose contained in the Illinois
product liability statute. 735 ILCS 5/13-213(b). Section
5/13-213(b) provides in relevant part:
Subject to the provisions of subsections (c) and (d)
no product liability action based upon the doctrine
of strict liability in tort shall be commenced except
within the applicable limitations period and, in any
event, within 12 years from the date of 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, of any product unit that is claimed to have
injured or damaged the plaintiff . . .
GERSCO and PLM contend that since the Railroad Car was first
leased in April 1978, then any action based on strict liability
in tort brought after April 1990 is barred.
Initially, P & PU argues that GERSCO and PLM have not
established the date when the statute of repose began to run.
Although it is undisputed that plaintiff Crisman filed his
lawsuit against P & PU more than twelve years after the first
lease of the Railroad Car, P & PU contends that GERSCO and PLM
must also prove that none of the exceptions of the statute of
repose apply. P & PU relies on Section 5/13-213(c) which provides
No product liability action based on the doctrine of
strict liability in tort to recover
for injury or damage claimed to have resulted from an
alteration, modification or change of the product
unit subsequent to the date of the first sale, lease
or delivery of possession of the product unit to its
initial user, consumer or other non-seller shall be
limited or barred by subsection (b) hereof if:
(2) the action commenced within the applicable
limitation period and, in any event, within 10
years from the date such alteration, modification
or change was made . . . 735 ILCS 5/13-213(c)(2).
P & PU argues that GERSCO and PLM have not established that the
big link was original equipment installed at the initial time of
manufacture of the car, as opposed to a replacement component
This Court finds that GERSCO and PLM have met their burden and
are entitled to summary judgment. GERSCO and PLM have submitted
an affidavit demonstrating that the Railroad Car was leased to
its first user in April 1978. Plaintiff Crisman filed his lawsuit
in April 1992. P & PU does not dispute these facts. According to
P & PU's logic, GERSCO and PLM must prove the date on which the
Railroad Car was leased to its initial user and that the big link
at issue was not an alteration, modification or change of the
original equipment. This Court disagrees.
Section 13-213(c) is an exception to Section 13-213(b). Since
the statute of repose is an affirmative defense, GERSCO and PLM
clearly have the burden of proving it. Delnick v. Outboard
Marine Corp., 197 Ill. App.3d 770, 144 Ill.Dec. 187, 192,
555 N.E.2d 84, 89 (1990). However, like the statute of limitations
which is also an affirmative defense, the plaintiff bears the
burden of establishing an exception to the statute. Knox v. Cook
County Sheriff's Police Department, 866 F.2d 905, 907 (7th Cir.
1988) (burden of establishing exception to statute of limitations
is on plaintiff). When the party opposing a motion for summary
judgment bears the burden of proof on a particular issue, it must
affirmatively demonstrate that there is a genuine issue of
material fact requiring trial. Holland v. Jefferson National
Life Insurance Co., 883 F.2d 1307, 1312 (7th Cir. 1989).
Therefore, if P & PU wants to invoke the protections of 13-213(c)
and avoid summary judgment, it must present evidence that
demonstrates that a dispute of a genuine issue of material fact
A genuine issue for trial exists "if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Based on the record
before this Court, no reasonable jury could find that the big
link at issue was an alteration, modification, or change of the
original equipment. P & PU admits that no repair records for the
Railroad Car before December 27, 1985 exist. In addition, Alan
Hallstrom, a mechanical repairman who has worked for P & PU since
1969, stated that it was his opinion that the big link at issue
was part of the original equipment of the Railroad Car.
(Hallstrom Deposition, p. 33). P & PU must do more than merely
raise "some metaphysical doubt as to the material facts" in order
to survive summary judgment. Holland, 883 F.2d at 1312
(quoting Matsushita Elec. Indus. Co., 475 U.S. at 586, 106
S.Ct. at 1356). Absolutely no evidence of an alteration,
modification or change of the big link has been presented.
Therefore, no reasonable jury could find that the big link in
question was altered, modified or changed and that P & PU is
entitled to the benefit of Section 13-213(c).
In Gonzalez v. Federal Press Company, 94 F.R.D. 206 (N.D.Ill.
1982), Judge Aspen of the Northern District of Illinois addressed
this same issue. In Gonzalez, the punch press machine at issue
was sold over twelve years before the plaintiff's product
liability action was brought. The plaintiff argued that a genuine
issue of fact existed as to whether the defendant had modified
the punch press within the applicable limitations period. If such
a modification occurred, the plaintiff's action would not have
been barred by Illinois law. The Gonzalez court recognized that
on a motion for summary judgment, the moving party bears the
burden of demonstrating that no dispute of any genuine issue of
fact material to a judgment in its favor exists. However, the
court held that:
While the non-moving party is entitled to all
reasonable inferences in its favor, the non-movant
cannot create an issue of material fact through
conjecture or speculation as to what evidence might
be adduced at trial or what might be turned up by
further discovery. Gonzalez, 94 F.R.D. at 208
(citing Abiodun v. Martin Oil Service, Inc.,
475 F.2d 142, 144 (7th Cir.) cert. denied,
414 U.S. 866, 94 S.Ct. 57, 38 L.Ed.2d 86 (1973)).
The Gonzalez court noted that plaintiff's initial complaint did
not even allege that the punch press had been modified. Id. In
addition, plaintiff offered no evidence that the punch press
might have been modified in the last ten years. Finally, the
court found that plaintiff's claim that discovery might uncover
evidence of a modification was "purely conjectural." The
Gonzalez court held that no genuine issue of fact existed and
granted defendant's motion for summary judgment.
Similarly, P & PU argues that summary judgment should be denied
because GERSCO and PLM have not proven that plaintiff's injury
did not result from an "alteration, modification or change" to
the big link and therefore, a genuine issue of material fact
exists. Neither plaintiff Crisman in his complaint nor P & PU in
its third-party complaint claimed that Crisman's injury occurred
from an alteration, modification, or change to the big link of
the hand brake chain or any other part of the Railroad Car. No
evidence that the big link has been altered, modified, or changed
has been offered. Therefore, P & PU cannot avoid summary judgment
on the ground that GERSCO and PLM have not demonstrated that
Section 13-213(c) does not apply.
Next, P & PU argues that it can still bring its action for
contribution pursuant to subsection (f) of the repose statute.
735 ILCS 5/13-213(f) provides:
Nothing in this section shall be construed . . . to
affect the right of any person to seek and obtain
indemnity or contribution.
P & PU contends that regardless of the date of the first sale or
lease of the allegedly defective product, subsection (f) allows
it to bring contribution actions against GERSCO and PLM. This
Court disagrees and holds that Section 5/13-213(f) does not allow
P & PU to maintain these contribution actions because the repose
period had expired when plaintiff Crisman sued P & PU.
Several Illinois court have interpreted Section 5/13-213(f) of
the Illinois product liability statute. See Hahn v. Norfolk and
Western Railway Company, 241 Ill. App.3d 97, 181 Ill.Dec. 610,
608 N.E.2d 683 (1993); Cornett v. Gromann Service Company,
227 Ill. App.3d 148, 169 Ill.Dec. 94, 590 N.E.2d 1013 (1992);
Thompson v. Walters, 207 Ill. App.3d 531, 152 Ill.Dec. 467,
565 N.E.2d 1385 (1991).
In Hahn, the plaintiff filed a FELA action in February 1985
against his employer, Norfolk & Western Railway Co. ("N & W"),
for injuries he suffered in 1984 while getting on and off a
forklift. Clark manufactured the forklift and sold it to N & W in
August 1975. In May 1990, N & W filed contribution and indemnity
claims against Clark based on a strict product liability theory.
Clark argued that N & W's claims were barred by the product
liability statue of repose in Section 13-213. The Hahn court
found that the statute of repose had expired in August 1985.
Regarding the statute of repose, the Hahn court stated:
The only exception lies in section 13-213(f) which
allows contribution between those parties who are in
fact joined before the repose period expires. Hahn,
181 Ill.Dec. at 614, 608 N.E.2d at 687.
The court reasoned that since Clark was not joined until 1990,
over four years after the repose period had expired, N & W's
claims for contribution and indemnity were barred even though the
plaintiff's underlying action against N & W was filed within the
In Cornett, the plaintiff was injured on May 24, 1985 when he
fell from a piece of construction equipment. On May 21, 1987, the
plaintiff filed suit against Gromann Service Company-Retail,
Gromann Service Company-Transport, and Gromann Service
Company-Wholesale ("Gromann"). The plaintiff alleged that Gromann
negligently over-filled the fuel tank on the machine which caused
fuel to spill and created a slippery,
dangerous condition. The construction machine was manufactured by
Caterpillar Inc. On January 19, 1990, Gromann filed a third-party
action for contribution against Caterpillar. The construction
machine was leased to its initial user on May 16, 1977.
Therefore, the ten year repose period ran out on May 16, 1987.
The underlying suit was filed on May 21, 1987, and the
contribution claim was filed on January 19, 1990. Caterpillar
moved for summary judgment arguing that any action based on a
theory of strict liability was barred by the product liability
statute of repose. The Cornett court interpreted Section
13-213(f) to mean "that the statute of repose will not bar
contribution claims between parties who are in fact joined before
the repose period expires." Cornett, 169 Ill.Dec. at 98, 590
N.E.2d at 1017. The court found that the plaintiff had not sued
Caterpillar within the repose period and Gromann's contribution
complaint was not filed within the repose period. Therefore, the
Cornett court reasoned that the statute of repose completely
extinguished any potential tort liability of Caterpillar.
In Thompson, the plaintiff was injured on July 8, 1985 by a
defective condition of the defendants' swimming pool. On June 30,
1987, the plaintiff brought suit against the defendants. The
defendants had purchased the swimming pool from Sears and had it
installed on their property prior to 1964. No material alteration
or modification of the pool had occurred since the time it was
installed. On December 26, 1989, the defendants brought their
contribution claim based on the theory of strict liability in
tort against Sears. The Thompson court defined the issue before
the court as follows:
Where a tort plaintiff is barred from bringing a
direct product liability action against a product
supplier because of the statute of repose for product
liability actions, may a defendant nevertheless
maintain a contribution action against the supplier?
The Thompson court found that the defendants could not maintain
a contribution action against Sears. The court concluded:
[S]ection 13-213(f) means that the statute of repose
will not affect the right of any person named as a
defendant in a timely filed strict products liability
action to seek and obtain indemnity and contribution.
If this were not the case, a product supplier sued on
the last day of the period of repose would be
precluded from obtaining indemnity or contribution
from other responsible parties. Thus, while section
13-213 bars any person from commencing an action
based on the doctrine of strict liability in tort
outside the repose, subsection (f) clarifies that it
will not otherwise cut off the contribution or
indemnity rights of a person timely sued as a
defendant on such theory of liability. Thompson,
152 Ill.Dec. at 472, 565 N.E.2d at 1390.
In sum, the Hahn and Cornett courts interpreted subsection
(f) as only allowing contribution actions between parties who are
joined before the repose period expires. The Thompson court,
however, found that Section 13-213(f) allows a timely sued
defendant to maintain a contribution or indemnity action based on
strict liability in tort even if the third-party action falls
outside the repose period.
This Court's role in interpreting a statute is to ascertain and
give effect to legislative intent. City of Decatur v. AFSCME,
Local 268, 122 Ill.2d 353, 119 Ill. Dec. 360, 364,
522 N.E.2d 1219, 1223 (1988). Although the language of the statute is the
best indicator of legislative intent, statutes must be read as a
whole. People v. NL Industries, 152 Ill.2d 82, 178 Ill.Dec. 93,
94, 604 N.E.2d 349, 355, 356 (1992). In ascertaining legislative
intent, this Court must "consider the entire statute as well as
the evil to be remedied and the object and purpose to be
attained." People ex rel. Daley v. Datacom Systems, 146 Ill.2d 1,
165 Ill.Dec. 655, 661, 585 N.E.2d 51, 57 (1991). Finally, a
statute should be construed so that no word or phrase is rendered
superfluous or meaningless. Kraft Inc. v. Edgar, 138 Ill.2d 178,
149 Ill.Dec. 286, 561 N.E.2d 656 (1990). Guided by these
principles of statutory construction, this Court adopts the
Thompson court's interpretation of Section 5/13-213(f).
Illinois courts have found that statutes of repose are intended
to "terminate the possibility of liability after a defined period
of time." Blazek v. Nicolet, Inc., 173 Ill.App.3d
324, 123 Ill.Dec. 105, 108, 527 N.E.2d 568, 571 (1988); Hayes v.
Mercy Hosp. and Medical Center, 136 Ill.2d 450, 145 Ill.Dec.
894, 899, 557 N.E.2d 873, 878 (1990) (statute of repose intended
to terminate the possibility of liability after a certain period
of time); Highland v. Bracken, 202 Ill. App.3d 625, 148 Ill.Dec.
104, 109, 560 N.E.2d 406, 411 (1990) (statute of repose
extinguishes any right to bring a cause of action, regardless of
whether such action has accrued). P & PU claims that even though
plaintiff Crisman's action was filed after the repose period
expired, it can maintain contribution actions against GERSCO and
PLM. P & PU's interpretation of subsection (f) would defeat the
purpose of the product liability statute of repose and allow "a
plaintiff to accomplish indirectly what he is unable to do
directly." Thompson, 152 Ill.Dec. at 471, 565 N.E.2d at 1389.
According to P & PU's interpretation of subsection (f), a party
would be forever potentially liable in a contribution or
indemnity action. Such an interpretation would clearly frustrate
the purpose of a statute of repose.
P & PU argues that the legislative history of the amendment
which included subsection (f) in the Illinois product liability
statute illustrates that the legislature never intended the
statute of repose to bar indemnity or contribution claims.
However, the legislative history provided by P & PU does not
support its position. At the Illinois House Judiciary
Subcommittee I hearing on subsection (f), Mr. Gavin, a witness of
Representative Daniels, testified as follows:
House Bill 2362 is also a clarifying amendment to
reflect what we feel is the intent of the Statute of
Repose as passed last year. Several groups in
particular, various retailers and wholesalers
expressed a concern that the Statute of Repose might
be construed to bar an indemnity action against a
manufacturer or somebody else on up the chain. Other
groups also expressed concern that it might be
construed to bar a contribution action. Their concern
stems from a possibility that they may be sued in
shortly before the tenth year ran in which the action
must be brought. They felt that in certain
circumstances it may take them several months to
determine who the manufacturer of the product was or
who they dealt with and move on up the chain. And
this may have put them beyond the tenth year. This
would make clear that in those types of situations
that an action for indemnity or contribution they may
have against anyone on up the chain of distribution
would not be barred. There was also some concern that
the definitions in the Statute of Repose might be
construed to create a cause of action. This amendment
would make clear that that is not the intent.
(Emphasis added). See P & PU's Exhibit 15, p. 3.
This excerpt from the legislative history does not support P &
PU's interpretation of subsection (f). Instead, it confirms the
Thompson court's conclusion that subsection (f) was intended to
allow defendants sued just before the end of the repose period to
seek contribution or indemnity from others on the distribution
chain. Therefore, this Court rejects P & PU's interpretation of
subsection (f) because it conflicts with the purpose of a statute
of repose and the legislative history of the amendment which
included subsection (f).
This Court also rejects the Hahn and Cornett courts'
construction of subsection (f). Their interpretation of
subsection (f) as meaning that a contribution or indemnity action
can be maintained between parties who are joined before the
repose period expires, would render subsection (f) superfluous
and meaningless. Obviously, the product liability statute of
repose does not bar direct or third-party actions between parties
joined before the repose period expires. If Section 13-213 did
not include subsection (f), then the Hahn and Cornett courts'
interpretation that all parties must be joined before the repose
period expires would be logical because Section 13-213(b) alone
requires that all strict product liability actions be brought
within the repose period. (See Hayes v. Mercy Hosp. and Medical
Center, 136 Ill.2d 450, 145 Ill.Dec. 894, 557 N.E.2d 873 (1990)
and Hartford Fire Insurance Co. v. Architectural Management
Inc., 158 Ill. App.3d 515, 110 Ill.Dec. 529, 511 N.E.2d 706
(1987) (interpreting medical malpractice (735 ILCS 5/13-212) and
construction (735 ILCS 5/13-214) statutes of repose which do not
subsection similar to subsection (f) of 5/13-213 as requiring
both direct and third-party actions to be filed within repose
period). However, the legislature included subsection (f), and
this Court must give it meaning.
Therefore, this Court follows the holding of the Thompson
court and finds that Section 13-213(f) of the Illinois product
liability statute only allows contribution or indemnity actions
by a defendant if the defendant was initially sued before the
repose period expired. Since P & PU was sued by plaintiff Crisman
after the repose period, P & PU's contribution claims against
GERSCO and PLM are barred.
For the reasons set forth above, General Electric Railcar
Services Corporation's Motion for Summary Judgment (# 71) and PLM
International, Inc.'s Motion for Summary Judgment (# 76) are
GRANTED. The Clerk is ordered to dismiss General Electric Railcar
Services Corporation and PLM International, Inc. as parties to
this cause of action.
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