The opinion of the court was delivered by: Reagan, District Judge
Now before the Court is Defendant PACCAR, Inc's motion for partial summary judgment (Doc. 147) and memorandum in support (Doc. 148). The Court begins its analysis with a brief recitation of the key facts and procedural history.
A. Factual Background and Procedural History
This action was originally commenced in the Circuit Court of Madison County, Illinois on December 31, 2003. On February 11, 2004, this case was removed to this Court (Doc. 1). Following this removal, on October 14, 2004, Plaintiffs filed their First Amended Complaint, ("Complaint") adding three additional defendants (Doc. 48).
Plaintiffs' action arises out of a motor vehicle accident (the "accident") that occurred on October 22, 2002, on eastbound I-64 near Mt. Vernon, Illinois. The accident involved the alleged separation of an axle shaft and double set of truck wheels from a 1990 Kenworth over-the-road tractor, which was being driven by defendant Gregory L. Grover ("Grover"), owned by defendant M.E.M.R., Inc. ("MEMR"), and serviced by defendant Rightway Diesel Service ("Rightway") (Complaint, ¶¶ 10-12). The axle shaft, purportedly manufactured by defendant Eaton Corporation ("Eaton"), allegedly crossed the median of an interstate highway and struck the vehicle in which plaintiff Melanie Osterhouse was riding, a 2003 Buick Rendezvous manufactured by defendant General Motors Corporation ("GM")(Complaint, ¶¶ 11, 71, 91-92). The tractor was manufactured by PACCAR. (Complaint, ¶¶ 5, 10; Affidavit of Richard Sedgley ("Affidavit"), ¶¶ 1-2). Plaintiffs allege that the accident was the cause of plaintiff Jadon Osterhouse's premature birth nine days later (Complaint, ¶¶ 14-16).
In their 34-count Complaint, Plaintiffs have brought six counts against PACCAR, two of which (Counts VIII and X) allege strict products liability causes of action, two of which allege negligence causes of action (Counts IX and XI), and two of which (Counts VII and XXXII) are derivative thereof.
In it's motion for partial summary judgment, PACCAR argues that it should be granted summary judgment as to Counts VIII and X because those claims are barred by Illinois' ten-year Statute of Repose (Doc. 148, pp. 2-3). Plaintiffs have filed no response to PACCAR's motion.
B. Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions, and affidavits leave no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The moving party bears the burden of establishing both the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).
In determining whether a genuine issue of material fact exists, the Court reviews the record in the light most favorable to the non-moving party and makes all reasonable inferences in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Ulichny v. Merton Community School Dist., 249 F.3d 686, 699 (7th Cir. 2001); Miranda v. Wisconsin Power & Light Company, 91 F.3d 1011, 1014 (7th Cir. 1996).
PACCAR argues that the plain language of Illinois' ten-year Statute of Repose applies to bar Counts VIII and X against PACCAR because the tractor was first sold and delivered to its initial consumer more than ten years before this action was commenced.
As PACCAR points out, Plaintiffs' Counts VIII and X are in the nature of strict products liability as defined by 735 ILCS 5/13-213(a)(3). Pursuant to 735 ILCS 5/13-213(a)(3), a "product liability action" is "any action based on the doctrine of strict liability in tort brought against the seller of a product on account of personal injury ...." Under § 213(a)(4), a "seller" includes one who manufactures a product or "otherwise is involved in placing a product in the stream of commerce." Here, in Counts VIII and X, Plaintiffs allege personal injuries and other damages purportedly ...