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.
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 ...