The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court is the motion for summary judgment*fn1 (#75) by defendant KA Bergquist. The Plaintiffs have filed responses, to which Bergquist has replied. I have carefully considered the arguments and evidence submitted by the parties. As explained below, the motion is granted as to Count III and denied as to Count IV.
The Plaintiffs are citizens of the State of Illinois. Defendant Manchester Tank & Equipment Company was incorporated in Delaware and has its principle place of business in Tennessee. Defendant K. A. Bergquist Inc. was incorporated in the State of Ohio and has its principle place of business in Toledo, Ohio . Third Party Defendant Hicksgas was incorporated in the State of Indiana and has its principle place of business in Illinois. The amount in controversy in each of these three consolidated cases exceeds $75,000. This Court therefore has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. 1332.
The events that led to this lawsuit occurred within Tazewell County, Illinois, a county within the Central District of Illinois, Peoria Division. Venue is therefore proper pursuant to 28 U.S.C. 1391(a)(2).
Manchester Tank and Equipment Company (herein "Manchester") designs and manufactures aluminum tanks. Instructions and warnings, also prepared by Manchester, accompany those tanks when sold. K. A. Bergquist Inc. (herein "Bergquist") distributes and sells those tanks. Bergquist plays no role in and exercises no control over the design or manufacture of the tanks or in preparing the instructions and warnings. Hicksgas purchases the tanks from Bergquist and fills them with, inter alia, propane gas. The filled tanks are stored at various Hicksgas' facilities, including one in Pekin, Illinois, and another in Decatur, Illinois.
In early August of 2005, Jake Slagley, the manager of the Hicksgas facility in Decatur, Illinois, found a leaky Manchester tank at his facility. He contacted Bergquist, and spoke with someone named Tom. Tom took down information over the phone. Shortly thereafter, Slagley received a "field destroy form," which instructed him to dispose of the cylinder, sign the form, and send it back to Tom for a credit.*fn2
On August 23, 2005, Bradley Clark, the manager of the Pekin Hicksgas facility, discovered that five brand new aluminum Manchester Tanks, which had been filled with propane gas, were leaking. These tanks were separated from other tanks on the property and placed at the edge of the bottle dock at the Hicksgas facility. Clark then called Bergquist, seeking guidance as to what to do with the five tanks. No one from Bergquist returned his call. On August 25, there was an explosion and fire at the Pekin Hicksgas facility, allegedly caused by the leaking propane. Three employees were injured: Bradley Clark, Jeremy Grove, and Larry Smith.
These three employees, along with their wives, filed separate complaints in Tazewell County. The cases were removed to this Court and consolidated.
The original state court complaints named Manchester as defendant and Bergquist as respondent in discovery. Manchester was sued as the manufacturer of the tanks. First amended complaints added Bergquist as a defendant, alleging that Bergquist sold the leaky tanks to Hicksgas. As is pertinent to the pending motion, the first amended complaints included only one claim against Bergquist, a strict product liability claim for the sale of unreasonably dangerous propane tanks. These claims, stated in Count III of each of the first amended complaints, were based on the allegations that Bergquist sold propane gas tanks to Hicksgas and that the tanks were unreasonably dangerous at the time they left Bergquist's control "in that they permitted propane to leak out of said tank(s), resulting in an explosion and fire. ..." On April 4, 2008, Bergquist answered, denying all liability and setting forth affirmative defenses.
On March 8, 2010, Plaintiffs filed second amended complaints (Docs. # 69, 70 and 71). These complaints added a second count against Bergquist, this one sounding in negligence. In the new Count IV, Plaintiffs allege that Bergquist failed to advise Hicksgas employees to remove leaking tanks from service immediately and without the need for an inspection by Bergquist, and that the cost of the tanks would be refunded or credited without the need of an inspection by Bergquist. According to Plaintiffs, the grounds for this claim were unknown until Jake Slagley was deposed on August 19, 2009.
Bergquist has moved for summary judgment as to both the strict liability and the negligence counts. According to Bergquist, a strict liability claim against a distributor must be dismissed once the manufacturer has been identified and joined. Plaintiffs respond that this rule does not apply if the distributor has actual knowledge of the defect.
Bergquist also argues that the new negligence claim fails for several reasons. First, Bergquist assserts that the claim is time barred, because it was filed after expiration of the original statute of limitations and does not relate back to the original filing date. Bergquist also asserts that the facts give rise to no duty and that causation is missing. Plaintiffs respond that the amendment is timely because it is based on new facts, that duty arises as a matter of law, and that causation is a question of fact.
In Illinois, all persons in the distributive chain, including suppliers, distributors, wholesalers and retailers, may be strictly liable for injuries resulting from an unreasonably dangerous product. Kellerman v. Crowe, 518 N.E.2d 116, 117 (Ill.1987). Such claims are subject to 735 ILCS 5/2-621, which governs the liability of non-manufacturers in strict liability products actions*fn3 . The statute first provides:
In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants, other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage.
Once the manufacturer has been added to the lawsuit, the statute mandates "dismissal of a strict liability in tort claim against the certifying defendant or defendants, provided the certifying defendant or defendants are not within the categories set forth in subsection (c) of this ...