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09/08/97 GWENDOLYN PORTWOOD ET AL. v. FORD MOTOR

September 8, 1997

GWENDOLYN PORTWOOD ET AL., PLAINTIFFS-APPELLANTS,
v.
FORD MOTOR COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Dorothy Kirie Kinnaird, Judge Presiding.

Rehearing Denied October 20, 1997. Released for Publication November 10, 1997.

The Honorable Justice Gallagher delivered the opinion of the court. Tully, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Gallagher

The Honorable Justice GALLAGHER delivered the opinion of the court:

This appeal represents the latest chapter in a litigation odyssey, Homeric in both size and duration, that spans two decades. The most recent class action complaint sought relief for 52 named plaintiffs--owners of certain Ford automobiles--and all others similarly situated throughout the nation, against defendant Ford Motor Company for damages and injuries caused by certain allegedly defective vehicles it manufactured during the 1976-79 model years. Plaintiffs appeal the trial court's dismissal of the complaint as time-barred, and we affirm.

BACKGROUND *fn1

Plaintiffs have filed five proposed nationwide class actions related to these allegedly defective vehicles in four distinct jurisdictions. Each action alleged that the vehicles would suddenly jump out of park--that is, shift from park to reverse--while left unattended. These "park to reverse" incidents resulted in the injuries and property damage for which plaintiffs have sought recovery. The proposed class actions are as follows: (1) Walsh v. Ford Motor Co., No. 81-1998 (D.D.C., filed August 21, 1981); (2) Thoubboron v. Ford Motor Co., No. 91-CA-01642 (D.C. Super. Ct., filed February 6, 1991); (3) Doutt v. Ford Motor Co., No. 212 (Pa. C. P. Phila. Co., filed April 1, 1991) (Doutt I); (4) Portwood v. Ford Motor Co., No. 91 CH 4442 (Ill. Cir. Ct. Cook Co., filed May 14, 1991), the present case before this court; and (5) Doutt v. Ford Motor Co., No. 94 CH 3999 (Ill. Cir. Ct. Cook. Co., filed May 3, 1994) (Doutt II) *fn2

The only previous action directly relevant to our disposition of this case is Walsh v. Ford Motor Co., 130 F.R.D. 260 (D.D.C. 1990) -- after nearly nine years of litigation--the United States District Court for the District of Columbia ultimately denied plaintiffs' motion for recertification as a class, due to the unmanageability of the case as a class action. Walsh v. Ford Motor Co., 130 F.R.D. 260, 277 (D.D.C. 1990); see also Walsh v. Ford Motor Co., 130 F.R.D. 514 (D.D.C. 1990) (denying plaintiffs' motion to reconsider). The court also dismissed the plaintiffs' individual claims, noting that said claims failed to satisfy the jurisdictional requirements of either the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq. (1981)) or federal diversity jurisdiction (28 U.S.C. § 1332 (1981)). Walsh v. Ford Motor Co., 130 F.R.D. 260, 277. Plaintiffs filed a motion to reconsider the dismissal of their individual claims, arguing that a multiparty action might be maintained under Magnuson-Moss and the joinder provision of Rule 20 of the Federal Rules of Civil Procedure. Walsh v. Ford Motor Co., 130 F.R.D. 514 (D.D.C. 1990). The trial court disagreed and denied plaintiffs' motion on May 14, 1990. 130 F.R.D. at 516. In October 1991, the United States Court of Appeals for the D.C. Circuit dismissed plaintiffs' appeal on jurisdictional grounds. Walsh v. Ford Motor Co., 292 U.S. App. D.C. 32, 945 F.2d 1188 (D.C. Cir. 1991).

Plaintiffs filed the present action, Portwood v. Ford Motor Co., on May 14, 1991, precisely one year after their motion for reconsideration was denied in Walsh. The complaint named 52 plaintiffs--47 of whom had been named in the earlier Walsh case. Plaintiffs styled their complaint as a two-count action for breach of warranty. Early on, the trial court stayed Portwood because of the pending actions in other jurisdictions, but that stay was reversed on a previous appeal to this court. Portwood v. Ford Motor Co., No. 1-92-2098 (1st Dist. 1995) (unpublished order under Supreme Court Rule 23). Eventually, plaintiffs voluntarily dismissed their complaints in the other jurisdictions, leaving Illinois as the sole forum in which their claims remained pending. Finally, on March 6, 1996, the trial court dismissed the Portwood complaint as time-barred.

When it dismissed the complaint, the trial court noted that both sides agreed that the applicable statute of limitations was found in section 2-725 of the Uniform Commercial Code-Sales (UCC). Ill. Rev. Stat. 1991, ch. 26, par. 2-725 (now 810 ILCS 5/2-725 (West 1996)). That statute provides that any breach of warranty action must be brought within four years of the delivery of the goods at issue. The trial court, recognizing both that plaintiffs filed this suit in 1991 and that the vehicles in question were manufactured and sold in and around model years 1976-79, held that plaintiffs' breach of warranty action "obviously" did not fall within the necessary four-year period and was therefore untimely. Plaintiffs argued (1) that the limitations period under section 2-725 was tolled, or suspended, from the date they filed Walsh (August 21, 1981) until the date the district court dismissed the case in 1990 *fn3 (citing American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983)); and (2) that the limitations period was extended an additional year by operation of section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-217 (now 735 ILCS 5/13-217 (West 1996))), the Illinois saving statute. Accordingly, plaintiffs' theory made their May 14, 1991, filing of Portwood a timely one. The trial court, however, rejected plaintiffs' arguments, and we affirm the trial court's decision.

The present appeal presents two issues before this court: (1) whether American Pipe's tolling doctrine applies to toll the Illinois statute of limitations even where a class action is filed in a foreign jurisdiction, and (2) if tolling does not apply, then which saving provision best applies to plaintiffs' claims? We consider each issue in turn.

I

The initial question we must decide is whether the class action tolling doctrine, as laid out in the United States Supreme Court's decision in American Pipe and expanded in Crown, Cork & Seal, applies to toll the limitations period in a jurisdiction different from the one in which the original class action is filed. American Pipe held that the filing of a federal class action tolls the statute of limitations as to all asserted members of a class who make timely motions to intervene after a court denies class certification. American Pipe, 414 U.S. at 553-54, 38 L. Ed. 2d at 726-27, 94 S. Ct. at 766. Later, the Court expanded this doctrine, ruling that a class action suspends the limitations period as to asserted members of the class whether they choose to intervene or file separate, individual actions following the denial of class certification. Crown, Cork & Seal, 462 U.S. at 354, 76 L. Ed. 2d at 636, 103 S. Ct. at 2397-98. Plaintiffs correctly point out that the Illinois Supreme Court adopted the American Pipe tolling doctrine for Illinois class actions, albeit without discussion. Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 342, 371 N.E.2d 634, 645, 13 Ill. Dec. 699 (1977), rev'g in part 41 Ill. App. 3d 804, 354 N.E.2d 586 (1976); see also Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill. App. 3d 790, 629 N.E.2d 520, 195 Ill. Dec. 935 (1993) (discussing American Pipe, Crown, Cork & Seal, and Steinberg). Defendant argues that neither the United States Supreme Court nor the Illinois Supreme Court has yet spoken on the issue of cross-jurisdictional tolling, and we agree. Both American Pipe and Crown, Cork & Seal dealt with cases in which the plaintiffs filed their class and individual claims in federal court and, as noted above, our supreme court in Steinberg adopted American Pipe's tolling doctrine without discussion. Accordingly, we find this to be a case of first impression in Illinois.

When it considered the viability of plaintiffs' complaint, the trial court analyzed the class claims raised by the plaintiffs and each of the individual claims of the 52 named plaintiffs. In dismissing plaintiffs' class claims, the trial court relied upon the reasoning of Korwek v. Hunt, 827 F.2d 874 (2d Cir. 1987), and Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir. 1987). These cases, among others, rejected the proposition that the tolling doctrines laid out in American Pipe and Crown, Cork & Seal should be extended to class members who file subsequent class actions. Although we agree with the trial court's interpretation of Korwek and Robbin, we need not decide this issue regarding plaintiffs' class claims. Because we hold that cross-jurisdictional tolling does not apply to save plaintiffs' individual claims, their class ...


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