Appeal from the Circuit Court of Randolph County. No. 95-L-36 Honorable Jerry D. Flynn, Judge, presiding.
The opinion of the court was delivered by: Justice Maag
Plaintiffs, Richard Daubach and J. Marlene Daubach, brought an action to recover damages from defendants, Honda Motor Company, Ltd., American Honda Motor Company, Inc., Honda Research and Development Company, Ltd., and Myers Cycle Sales and R.V. Center, Inc., based upon theories of strict products liability and negligence. Defendants filed motions to dismiss the strict liability claims, pursuant to sections 2- 619 and 13-213 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619, 13-213 (West 1996)), alleging that plaintiffs' claims were barred by the statute of repose. The trial court granted defendants' motions and dismissed counts I and III of the complaint.
Plaintiffs filed a petition pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), asking this court to decide whether section 13-213(d) of the Code (735 ILCS 5/13-213(d) (West 1996)) permits a plaintiff, who is injured by an allegedly defective product and also knows of the injury prior to the expiration of the statute of repose, to bring a cause of action within two years from the date of injury, even though the cause of action is filed after the expiration of the statute of repose.
The facts pertinent to this appeal follow. On April 29, 1994, plaintiffs filed a complaint alleging that plaintiff Richard Daubach was severely injured when the three-wheel all-terrain vehicle (ATV) he was operating "rolled over and flipped". The incident occurred on May 1, 1992. In counts I and III, plaintiffs alleged that the ATV was defective, unsafe, and unreasonably dangerous due to design defects and inadequate warnings. In counts II and IV, plaintiffs alleged that defendants were negligent in that they failed to design the ATV in a safe and proper manner, failed to provide adequate warnings to the users, and/or failed to provide adequate warnings and instructions as to the safe operation and maintenance of the ATV.
Each defendant filed a motion to dismiss the strict liability counts (counts I and III), claiming that they were barred by section 13- 213(b) of the Code, the statute of repose (735 ILCS 5/13-213(b) (West 1996)). Defendants argued that because the subject ATV was manufactured on June 2, 1982, and was sold to the initial user on March 3, 1983, plaintiffs' cause of action, filed April 29, 1994, was barred by section 13-213(b). Defendants also argued that plaintiffs may not take advantage of section 13-213(d) because that provision is only available where the injury is not immediately discoverable.
The pertinent portions of the Illinois statute provide:
"(b) Subject to the provisions of subsections (c) and (d) no product liability action based on 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 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, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period." 735 ILCS 5/13- 213(b) (West 1994).
"(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred." (Emphasis added.) 735 ILCS 5/13-213(d) (West 1996).
The statute of repose is not a true statute of limitations. A statute of limitations governs the time within which lawsuits may be commenced after a cause of action has accrued. A statute of repose extinguishes a right of action before the right of action ever arises. Thornton v. Mono Manufacturing Co., 99 Ill. App. 3d 722, 726, 425 N.E.2d 522, 660 (1981). Therefore, a statute of repose exempts manufacturers and sellers from liability for actions based in strict liability if the cause of action arises beyond a legislatively designated time limit.
Plaintiffs argue that section 13-213(d) permits them to bring their action within two years from the date they knew of the injury, because the injury occurred prior to the expiration of the statute of repose set forth in section 13-213(b). Relying upon Elliott v. Sears, Roebuck & Co., 173 Ill. App. 3d 383, 527 N.E.2d 574 (1988), and American Family Insurance Co. v. Village Pontiac-GMC, Inc., 182 Ill. App. 3d 385, 538 N.E.2d 859 (1989), defendants contend that section 13-213(d) applies only to those situations in which the plaintiff's injury is not immediately discoverable by the injured party.
In Elliott, the plaintiff filed suit against the defendant on July 11, 1984, alleging that he was severely injured by a radial saw which was sold by the defendant. The saw was manufactured by Emerson Electric Company in November 1965 and shipped to the defendant, Sears, in December 1965. The defendant sold the saw to the plaintiff in early 1982. The plaintiff was injured on May 3, 1983. The defendant argued that the plaintiff's claim was extinguished because his injuries occurred more than 12 years after the date of first sale, based upon the provisions of section 13-213(b). The trial court granted summary judgment on that basis.
On appeal, the plaintiff encouraged the court to ignore that language in subsection 13-213(b) which firmly established that the shorter of the two repose periods would extinguish the claim. The plaintiff argued that the phrase "within any of the periods provided in subsection (b)", contained in first sentence of section 13-213(d), should be interpreted to mean that if the injury occurs within either the 12-year or the 10-year repose period, then a plaintiff is entitled to file his lawsuit within two years of the injury. In Elliott, the court did not attempt to construe the ambiguity created by these subsections. Instead, the court simply declared that subsection (d) was only available to plaintiffs whose injuries were not immediately discoverable. Elliott, 173 Ill. App. 3d at 394-95, 527 N.E.2d 574. No explanation or rationale was given for this holding.
A few years later, the Illinois Supreme Court addressed the issue raised by the plaintiff in Elliott. In Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 384-85, 666 N.E.2d 1198, 1203 (1996), the supreme court held that when subsection (d) states "within any period provided in subsection (b)", it means whichever of the 10- or 12-year provisions will act as the period of repose. In Garza, the supreme court also cited with approval a federal district court decision, Taylor v. Raymond Corp., 719 F. Supp. 738 (N.D. Ill. 1989), aff'd, 909 F.2d 225 (7th Cir. 1990), which held that the two-year extension provided in section 13-213(d) applied even to plaintiffs who suffer an immediately discoverable, sudden, and traumatic injury, as long as the injury occurred within the repose period. Garza, 172 Ill. 2d at 385, 666 N.E.2d 1198. Thus, the Garza decision seems to call the Elliott holding into question.
In our view, the Elliott decision provides nothing more than a declaration that subsection (d) applied only to plaintiffs whose injuries are not readily ascertainable. It provides no guidance or analysis as to how the Conclusion was reached. American Family Insurance Co. merely adopts the Elliott holding without providing any reason as to why it should be followed. American Family Insurance Co., 182 Ill. App. 3d at 389, 538 N.E.2d 859. Neither decision furnishes any reason for distinguishing between a plaintiff who is unable to file a lawsuit because he has not ...