Lowe v. Ford Motor Co., No. 1-98-4458

1st District, May 8, 2000

FIRST DIVISION

JUSTICE GALLAGHER delivered the opinion of the court:

The plaintiff, Marshall Lowe, brought an action against the defendants, Ford Motor Company and Colon-Collins Ford, Inc.,seeking damages allegedly caused by a defective automobile manufactured by Ford and sold to the plaintiff by Colon-Collins Ford. The trial court granted defendants' motion to dismiss pursuant to section 2-619(a)(5) of the Code of CivilProcedure (735 ILCS 5/2-619(a)(5) (West 1996)) on the ground that the action was barred by the statute of limitations. Weaffirm.

Plaintiff's daughter, Candace Lowe (decedent), was killed on August 9, 1993, when she lost control of her 1984 FordBronco II causing it to roll over. On August 8, 1997, plaintiff brought an action against Ford Motor Company and Colon-Collins Ford, Inc. Plaintiff alleged that his daughter's death resulted from a defectively designed vehicle. In his complaint,plaintiff alleged five claims including: (1) breach of express warranty; (2) breach of implied warranty; (3) violation of theConsumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act)(815 ILCS 505/1 et seq. (West 1996)); (4)negligence; and (5) strict liability.

Ford Motor Company brought a motion to dismiss the complaint pursuant to section 2-619(a)(5) (735 ILCS 5/2-619(a)(5)(West 1996)). Ford contended plaintiff had filed his complaint after the statute of limitations had expired. In response,plaintiff admitted that the statute of limitations periods had expired for the various alleged causes, but asserted that thestatutes were tolled by the fraudulent concealment doctrine. 735 ILCS 5/13-215 (West 1997). Plaintiff alleged that Fordengaged in affirmative acts to fraudulently conceal the defects in the Bronco II automobile. Plaintiff alleged that thisconcealment began before the vehicle was manufactured and continued at least through the time he was made aware of theexistence of his claim in 1997.

On May 20, 1998, the trial court granted Ford's motion to dismiss plaintiff's first amended complaint and granted him leaveto file a second amended complaint. On October 30, 1998, the trial court granted Ford's motion to dismiss plaintiff's secondamended complaint based upon the statute of limitations. The court ruled that plaintiff's cause of action was time-barred anddismissed plaintiff's second amended complaint with prejudice. This appeal followed.

A motion to dismiss admits all facts well-pleaded in the plaintiff's complaint. Village of Riverwoods v. BG Ltd. Partnership,276 Ill. App. 3d 720, 724, 658 N.E.2d 1261, 1265 (1995). The standard of review for involuntary dismissal based uponcertain defects or defenses under section 2-619 is de novo. Health Cost Controls v. Sevilla, 307 Ill. App. 3d 582, 586, 718N.E.2d 558, 562 (1999).

Under the Illinois Code of Civil Procedure, the statutes of limitation for personal injury and product liability claims requirethat such lawsuits generally be commenced within two years of the date on which the cause of action accrued. 735 ILCS5/13-202, 13-213(d) (West 1998). The mechanical application of the statute of limitations could bar plaintiffs from bringingsuit before the plaintiff was even aware that he was injured. Golla v. General Motors Corp., 167 Ill. 2d 353, 360, 657N.E.2d 894, 898 (1995). To alleviate the harsh consequences that would flow from literal application of the limitationsperiod, the judiciary created the "discovery rule." Golla, 167 Ill. 2d at 360, 657 N.E.2d at 898. The effect of the discoveryrule is to postpone the commencement of the relevant statute of limitations until the injured plaintiff knows or reasonablyshould know that he has been injured and that his injury was wrongfully caused. See Nolan v. Johns-Manville Asbestos, 85Ill. 2d 161, 169, 421 N.E.2d 864, 868 (1981).

In determining when a plaintiff reasonably should have discovered the possibly wrongful causation of an injury, the courtshave distinguished between a sudden traumatic injury and an injury with an insidious onset. Hauk v. Reyes, 246 Ill. App. 3d187, 192, 616 N.E.2d 358, 360 (1993). Our supreme court has indicated that when the injury is caused by a sudden,traumatic event, the cause of action accrues and the statute of limitations begins to run on the date the injury occurs. Golla,167 Ill. 2d at 362, 657 N.E.2d at 899; Hutson v. Harte, 292 Ill. App. 3d 411, 413, 686 N.E.2d 734, 736 (1997). Therefore, atraumatic event alone puts a person on notice of a reasonable possibility that his injury was wrongfully caused. Hutson, 292Ill. App. 3d at 413, 686 N.E.2d at 737. "The rationale supporting this rule is that the nature and circumstances surroundingthe traumatic event are such that the injured party is thereby put on notice that actionable conduct might be involved."⁽¹⁾Golla, 167 Ill. 2d at 363, 657 N.E.2d at 899.

In this case, decedent was involved in a one-car accident where her car rolled over and killed her. This is certainly a sudden,traumatic event which should prompt some investigation by the injured party and trigger the application of the discoveryrule. See Lutes v. Farley, 113 Ill. App. 3d 113, 115, 446 N.E.2d 866, 868 (1983); Hauk, 246 Ill. App. 3d at 192, 616 N.E.2dat 360-61, citing Urchel v. Holy Cross Hospital, 82 Ill. App. 3d 1050, 403 N.E.2d 545 (1980) (courts have held that atraumatic event such as an automobile accident should prompt investigation by the injured party). We conclude that theaccident was sudden and traumatic. Therefore, once plaintiff was aware of an injury and its possible cause, he was aware ofhis right to sue. See Golla, 167 Ill. 2d at 371, 657 N.E.2d at 903. Since the accident was a traumatic event, the two-yearstatute of limitations began to run at the time of the accident. Plaintiff failed to file his complaint until four years after theaccident. Therefore, the trial court properly dismissed plaintiff's second amended complaint pursuant to section 2-619.

Plaintiff argues that he failed to meet the statute of limitations because Ford fraudulently concealed information concerningthe defects in the design of the Bronco II. Fraudulent concealment is an express exception to the statute of limitations whichprovides that if a defendant has fraudulently concealed the existence of a cause of action, the plaintiff is allowed five yearswithin which to bring suit after he discovers the cause of action. Tate v. Beverly Chrysler Plymouth, 182 Ill. App. 3d 830,836, 538 N.E.2d 663, 667 (1989); 735 ILCS 5/13-215 (West 1996). Specifically, the statute states: