Giannini v. Kumho Tire U. S. A., Inc.

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-1065 Rel

Case Date: 10/22/2008

Preview:No. 2--07--1065 Filed: 10-22-08 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ ALBERT GIANNINI and MARIO GIANNINI, ) Appeal from the Circuit Court ) of Kane County. ) Plaintiffs, ) ) v. ) No. 06--L--147 ) KUMHO TIRE U.S.A., INC., KUMHO ) INDUSTRIAL COMPANY, LTD., ) f/k/a Kuhmo Tire Company, Ltd., and ) DISCOUNT TIRE COMPANY, ) ) Defendants and Third-Party ) Plaintiffs-Appellants ) ) Honorable (A & M Corporation and A & M Sewer, Inc., ) F. Keith Brown, Third-Party Defendants-Appellees). ) Judge, Presiding. ______________________________________________________________________________ JUSTICE McLAREN delivered the opinion of the court: Defendants and third-party plaintiffs, KumhoTire U.S.A., Inc., Kumho Industrial Company, Ltd., f/k/a Kumho Tire Co., Ltd., and Discount Tire Company (The Tire Companies), appeal the dismissal of their amended complaint for contribution against third-party defendants A & M Corporation and A & M Sewer, Inc. (A & M). The trial court granted dismissal based on its determination that the statute of limitations was not tolled while the case was on appeal. We reverse and remand.

No. 2--07--1065 On June 24, 2003, plaintiffs, Albert and Mario Giannini, filed in the circuit court of Cook County a product liability action against the Tire Companies, alleging that they suffered injuries resulting from an automobile accident on June 25, 2001. Plaintiffs alleged that they were driving a Chevy pickup truck east on Interstate 90 in Kane County when the truck's rear driver's-side tire failed, causing the vehicle to crash. Plaintiffs did not allege that at the time of the accident they were employed, driving a company vehicle, or driving within the scope of their employment. Kumho Tire U.S.A. was served with plaintiffs' complaint on July 1, 2003. Discount Tire was served with plaintiffs' complaint on July 17, 2003, and Kumho Industrial was served with plaintiffs' complaint on August 21, 2003. On October 28, 2003, Kumho Tire U.S.A. filed a motion to transfer the case to Kane County based on forum non conveniens. The Cook County trial court denied Kumho Tire U.S.A.'s motion to transfer and, on May 20, 2004, the Appellate Court, First District, granted its petition for leave to appeal pursuant to Supreme Court Rule 306 (210 Ill. 2d R. 306). On November 14, 2005, the appellate court reversed the Cook County trial court and remanded the case with directions that it be transferred to the circuit court of Kane County. Giannini v. Kumho Tire U.S.A., Inc., No. 1--04-1023 (2005) (unpublished order under Supreme Court Rule 23). Plaintiffs' answers to interrogatories identified "A & M Corporation" as their employer at the time of the accident. On May 16, 2006, Kumho Tire U.S.A. and Discount Tire filed motions for leave to file a third-party complaint for contribution against A & M. On May 26, 2006, Milwaukee Mutual Insurance Company (Milwaukee Mutual) filed a petition to intervene as subrogee of A & M. When the petition was filed, A & M was not a party to the lawsuit. The petition alleged that, at the time of plaintiffs' accident, plaintiffs were employed

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No. 2--07--1065 by A & M and that Milwaukee Mutual was A & M's workers' compensation carrier. The trial court granted Milwaukee Mutual's petition. On June 1, 2006, with the trial court's leave, Kumho Tire U.S.A. and Discount Tire filed a complaint for contribution against third-party A & M. On August 28, 2006, the trial court granted their motions for leave to file an amended third-party complaint. The trial court also allowed Kumho Industrial to join the amended third-party complaint. The Tire Companies filed their amended thirdparty complaint for contribution against A & M on September 5, 2006. On March 13, 2007, A & M filed a motion under section 2--619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West 2006)) to dismiss the amended third-party complaint for contribution, alleging that the third-party complaint was barred because it had been filed more than two years after the Tire Companies had been served with plaintiffs' underlying complaint, in violation of section 13--204(b) of the Code (735 ILCS 5/13--204(b) (West 2006)). Relying on Block v. Pepper Construction Co., 304 Ill. App. 3d 809 (1999), the trial court reasoned that the limitations period was not tolled while this case was on appeal and granted the motion to dismiss. This timely appeal followed. STANDARD OF REVIEW Section 2--619(a)(5) of the Code allows for the dismissal of a cause of action if "the action was not commenced within the time limited by law." 735 ILCS 5/2--619(a)(5) (West 2006). A motion to dismiss pursuant to section 2--619 of the Code admits all well-pleaded facts and reasonable inferences drawn from those facts. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). Additionally, a section 2--619 motion admits the legal sufficiency of the complaint but asserts affirmative matter to avoid or defeat the claim. Financial Freedom v. Kirgis, 377 Ill. App.

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No. 2--07--1065 3d 107, 122 (2007). We review de novo the trial court's ruling on a section 2--619 motion. Porter, 227 Ill. 2d at 352. ANALYSIS On appeal, the Tire Companies argue that the trial court erred by dismissing its amended third-party complaint, because the two-year statute of limitations was tolled while this case was on appeal pursuant to Rule 306. In interpreting a supreme court rule, we must follow the same guidelines as for statutory interpretation. Longstreet v. Cottrell, Inc., 374 Ill. App. 3d 549, 552 (2007). The goal of the court is to interpret the rule by ascertaining and giving effect to the drafter's intentions. In re Estate of Rennick, 181 Ill. 2d 395, 404-05 (1998). Therefore, the words used by the supreme court should be given their plain, ordinary, and popularly understood meanings, as are the words used in a statute. See Nix v. Whitehead, 368 Ill. App. 3d 1, 5 (2006). We review de novo the interpretation of a supreme court rule. Rennick, 181 Ill. 2d at 401. Rule 306 provides in pertinent part: "(a) Orders Appealable by Petition. A party may petition for leave to appeal to the Appellate Court from the following orders of the trial court: *** (2) from an order of the circuit court allowing or denying a motion to dismiss on the grounds of forum non conveniens, or from an order of the circuit court allowing or denying a motion to transfer a case to another county within this State on such grounds; ***

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No. 2--07--1065 (g) Stay; Notice of Allowance of Petition. If the petition is granted, the proceedings in the trial court are stayed. Upon good cause shown, the Appellate Court or a judge thereof may require the petitioner to file an appropriate bond. Within 48 hours after the granting of the petition, the clerk shall send notice thereof to the clerk of the circuit court." 210 Ill. 2d Rs. 306(a)(2), (g). The plain and ordinary meaning of the word "stay" is: "1: to halt an advance: stop going forward: PAUSE." Webster's Third New International Dictionary 2231 (1993). In this case, there is no dispute that the Tire Companies' petition for leave to appeal was granted, and there is no dispute that it was an appeal from an order of the circuit court allowing a motion to dismiss on the grounds of forum non conveniens. Therefore, according to Rule 306(g), "the proceedings in the trial court [were] stayed" (210 Ill. 2d R. 306(g) or stopped, paused, or halted. See Webster's Third New International Dictionary 2231 (1993). Illinois case law provides that statutory stay provisions toll statutory limitations periods. See Garbe Iron Works, Inc. v. Priester, 110 Ill. App. 3d 948, 952 (1982). While there are no Illinois cases addressing the stay granted in Rule 306, Garbe Iron Works held that the two-year statute of limitations for filing a mechanics' lien foreclosure was tolled by the automatic stay provision contained in the Federal Bankruptcy Act (11 U.S.C.

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