Berghoff v. RJ Frisby Mfg. Co.

• Decision Date: 17 August 1989
• Docket Number: No. 88 C 7580.,88 C 7580.
• Citation: 720 F. Supp. 649
• Parties: Richard BERGHOFF, Plaintiff, v. R.J. FRISBY MANUFACTURING CO., A DIVISION OF WESTERN CAPITAL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Illinois

720 F. Supp. 649

Richard BERGHOFF, Plaintiff, v. R.J. FRISBY MANUFACTURING CO., A DIVISION OF WESTERN CAPITAL CORPORATION, Defendant.

No. 88 C 7580.

United States District Court, N.D. Illinois, E.D.

August 17, 1989.

Thomas Burke, Querrey & Harrow Ltd., Chicago, Ill., for plaintiff.

Rody P. Biggert, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

I. INTRODUCTION

The plaintiff, Richard Berghoff, has brought this diversity action against the defendant, R.J. Frisby Manufacturing Co., alleging that the defendant discharged him in retaliation for his efforts to enforce rights available to him under the Illinois Workers' Compensation Act. The defendant filed a motion to dismiss on the sole ground that the plaintiff's case was time-barred under Illinois' two-year statute of limitations for personal injuries. See Ill. Ann.Stat. ch. 110, para. 13-202 (Smith-Hurd 1987). The plaintiff, on the other hand, asserts that Illinois' five-year statute of limitations for "all civil actions not otherwise provided for" applies. See id. para. 13-205. For the following reasons, the court holds that the plaintiff's retaliatory discharge claim is governed by the five-year statute of limitations and, therefore, denies the defendant's motion to dismiss.

II. FACTS

For purposes of a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint and must draw all reasonable inferences in the light most favorable to the plaintiff. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). A complaint should not be dismissed for failure to state a claim unless it is beyond doubt that the plaintiff could prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The court, however, need not accept as true legal conclusions or opinions that are couched as factual allegations. Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Accordingly, the facts of this case, as alleged in the plaintiff's complaint, are as follows.

From February to August 1983, the plaintiff was an employee of the defendant. In early May 1983, the plaintiff suffered a severe injury to his back while lifting heavy objects at work. The plaintiff informed the defendant of his injury, and the defendant referred him to medical treatment. The plaintiff also sought advice from his own physician and received treatment from May to July. During this time the plaintiff worked when physically able to do so.

In June 1983, the plaintiff informed Dick Bron,¹ the defendant's personnel manager, that he contemplated filing a workmen's compensation claim because he was dissatisfied with the manner in which the defendant was handling his injury. After this, Bron repeatedly pressured and harassed the plaintiff in an effort to force him to drop his claim.

On July 27, the plaintiff reinjured his back and was hospitalized for three days. On August 2, the plaintiff's wife called the defendant and told Bron that the plaintiff would be unable to work for at least another week. On August 9, the plaintiff's physician contacted Martin Boyer Co., the defendant's authorized representative for the adjustment of worker's compensation claims, and informed Boyer that the plaintiff would be unable to work for at least another week. Finally, on August 15 the plaintiff received a letter from the defendant advising him that he had been terminated for failing to report to his employer that he was absent.

On August 10, 1988, the plaintiff filed this suit in the Circuit Court of Cook County — four years and 360 days after he had been terminated — and on August 31 the defendant removed the case to federal court. The plaintiff claims that the defendant discharged him in retaliation for exercising his rights under the Illinois Workers' Compensation Act, in violation of Illinois public policy. The defendant then filed this motion to dismiss for failure to file within the appropriate limitations period.

III. ANALYSIS

A. Determining State Law

The sole issue presented by this motion is which limitations period governs an action for retaliatory discharge — or, more specifically, whether section 13-202's two-year period or section 13-205's five-year period applies. Section 13-202, which governs the limitations period for an "injury to the person," provides as follows:

Personal Injury — Penalty. Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, except damages resulting from murder or the commission of a Class X felony and the perpetrator thereof is convicted of such crime, shall be commenced within 2 years next after the cause of action accrued but such an action against a defendant arising from a crime committed by the defendant in whose name an escrow account was established under the "Criminal Victims' Escrow Act" shall be commenced within 2 years after the establishment of such account.

Ill.Ann.Stat. ch. 110, para. 13-202 (footnote omitted; emphasis added). Section 13-205, which provides the limitations period for, among other things, "all civil actions not otherwise provided for," is as follows:

Except as provided in Section 2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.

Id. para. 13-205 (footnote omitted; emphasis added).

The Illinois Supreme Court first recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1979), but neither the court nor the Illinois legislature thus far has declared the appropriate limitations period for this type of action. In fact, the only Illinois case to consider this issue is Henon v. Lever Bros., 114 Ill. App.3d 608, 70 Ill.Dec. 322, 449 N.E.2d 196 (1983), a First Appellate District decision which held that section 13-205's five-year statute of limitations applies to retaliatory discharge actions. See also Gladich v. Navistar Int'l Transp. Corp., 703 F.Supp. 1331, 1334 (N.D.Ill.1989) (citing Henon); Owens v. Freeman United Coal Mining, 649 F.Supp. 1565, 1571 (S.D.Ill.1986) (same); Johnson v. Arnos, 624 F.Supp. 1067, 1072 (N.D.Ill.1985) (same), overruled in part on other grounds, Kalimara v. Illinois Dep't of Corrections, 879 F.2d 276 (7th Cir.1989) (reversing district court's conclusion that section 13-205's five-year period applies to actions under 42 U.S.C. § 1983; section 13-202's two-year period applies). The court in Henon reasoned that a retaliatory discharge suit was not an action for a "statutory penalty" under section 13-202 and, therefore, fell under section 13-205's catchall language for "all civil actions not otherwise provided for." Furthermore, the court held that section 13-205's five-year period applied since retaliatory discharge was a tort "arising out of a contractual relationship." 114 Ill.App.3d at 611, 449 N.E.2d at 198 (citing Del Bianco v. American Motorists Ins. Co., 73 Ill. App.3d 743, 749, 29 Ill.Dec. 563, 569, 392 N.E.2d 120, 126 (1979)).²

The issue, then, is what weight this court should give to Henon. Federal courts sitting in diversity must apply the substantive law of the forum state — in this case, Illinois.³ When the forum state's highest court has not spoken on a state-law issue, a federal district court should follow an intermediate appellate court's ruling on the issue unless there is "good reason to believe that the state's highest court would reject" it. Phelps v. Sherwood Med. Indus., 836 F.2d 296, 306 (7th Cir.1987); see Peeler v. Village of Kingston Mines, 862 F.2d 135, 137 (7th Cir.1988). Accordingly, unless there are "other persuasive data that the Illinois Supreme Court would decide otherwise," this court must treat Henon, the only Illinois decision on the subject, as authoritative. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1428 n. 3, 99 L.Ed.2d 721 (1988) (quoting West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940)).

This court concludes that the defendant here has not provided any "persuasive data" that the Illinois Supreme Court would reject Henon's conclusion and instead apply section 13-202's two-year limitations period to retaliatory discharge actions. As the following sections demonstrate, section 13-202 is inappropriate for retaliatory discharge actions because Illinois courts have limited the reach of section 13-202 to direct physical injuries; furthermore, section 13-205 is appropriate in this case because retaliatory discharge is a tort arising out of a contractual relationship, and such torts are governed by the five-year statute of limitations.

B. Direct Physical Injury Under Section 13-202

Illinois courts uniformly have interpreted the phrase "injury to the person" in section 13-202 as applying only to direct physical injuries:

Applying the familiar principle that the statute does not bar a cause of action unless it comes clearly within its provisions, we are of the opinion that the section relied upon the precursor to section 13-202 is not broad enough to include the present case. The cause of action for an injury to the person which is barred in two years is limited to a direct physical injury to the person.

Bassett v. Bassett, 20 Ill.App. 543, 548 (1886) (emphasis added); see, e.g., Mitchell...