Cherry v. Siemans Medical Systems, Inc.

• Decision Date: 07 December 1990
• Docket Number: No. 1-89-1563,1-89-1563
• Citation: 565 N.E.2d 215,206 Ill.App.3d 1055
• Court: United States Appellate Court of Illinois
• Parties: , 151 Ill.Dec. 944 Luversia CHERRY, Plaintiff-Appellant, v. SIEMANS MEDICAL SYSTEMS, INC., Defendant-Appellee.

Page 215

565 N.E.2d 215

206 Ill.App.3d 1055, 151 Ill.Dec. 944

Luversia CHERRY, Plaintiff-Appellant, v. SIEMANS MEDICAL SYSTEMS, INC., Defendant-Appellee.

No. 1-89-1563.

Appellate Court of Illinois First District, Fifth Division.

Dec. 7, 1990.

Lane & Munday (John J. Perconti, of counsel), Chicago, for plaintiff-appellant.

McKenna, Storer, Rowe, White & Farrug (James P. DeNardo, Gregory L. Cochran, Christine L. Olson, of counsel), Chicago, for defendant-appellee.

Justice MURRAY delivered the opinion of the court:

Plaintiff Luversia Cherry (Cherry) appeals from an order of the circuit court of Cook County, dated October 22, 1987, dismissing her strict liability in tort action against defendant, Siemans Medical Systems (Siemans) and from an order of the court dated May 17, 1989, denying her motion to vacate the dismissal order and reinstate her cause against Siemans. The facts, which are undisputed, are as follows:

On June 5, 1985, Cherry filed a complaint against Siemans and W.C. Heraevs, a/k/a Hanau Manufacturing Company (Heraevs), charging that a "surgical lamp horizontal arm", designed and manufactured by Heraevs and distributed and installed by Siemans, had broken and fallen on her during a surgical procedure at Provident Hospital on June 9, 1983. Cherry alleged that she incurred injuries when this defectively designed horizontal arm had failed because its brackets and fittings were unable to support the weight of the lamp.

Cherry served Siemans with notice and summons on November 27, 1985. Siemans filed an appearance on February 6, 1986, and an answer on March 11, 1986, in which they admitted to the sale and distribution of the surgical lamp, but denied liability. More than a year later, on April 23, 1987, Siemans filed a motion seeking dismissal from the cause of action pursuant to Section 2-621 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1985, ch. 110, par. 2-621), certifying in an attached affidavit that "W.C. Heraevs, a/k/a Hanau Manufacturing Company" was the manufacturer of the allegedly defective product. Cherry contested this motion, but not on the grounds that Siemans was independently responsible for the defective product in some way. Rather, plaintiff argued that, although she had named Heraevs (the manufacturer) as a party-defendant in her complaint, she had opted not to proceed against Heraevs, a corporation located in the Federal Republic of West Germany, because it appeared that this foreign manufacturer was not amenable to service of process nor subject to the jurisdiction of Illinois courts. Plaintiff also contended that Siemans should not be allowed to bring a section 2-621 motion at that time because it was not timely since the statute provided that this type of motion may be brought by a nonmanufacturing defendant "upon answering or otherwise pleading".

Despite plaintiff's objections, the trial court granted defendant's motion and dismissed Siemans from the case in an order dated October 22, 1987. After Siemans' dismissal, plaintiff, for the first time, attempted to obtain service on Heraevs. Through additional investigation, plaintiff learned that the correct identity of the manufacturer was, in fact, "W.C. Heraeus, Gmbh". A special international process server was then appointed and on January 5, 1988, the manufacturer was served with summons and complaint.

On February 3, 1988, the manufacturer (W.C. Heraeus, Gmbh) filed a limited appearance, contesting the jurisdiction of the court. After a hearing held July 12, 1988, the trial court ruled that the manufacturer was not subject to the court's jurisdiction because it was not "doing business" in the State and dismissed it from the cause of action. Although plaintiff's counsel was present at the hearing, the dismissal of the foreign manufacturer was not contested by plaintiff and no argument was made suggesting that jurisdiction could be founded upon the commission of a "tortious act" within the jurisdiction.

On August 11, 1988, plaintiff filed a motion asking that the trial court vacate or reconsider its July 12, 1988, order dismissing W.C. Heraeus, raising at this time the trial court's failure to consider the "tortious act" basis for finding jurisdiction. In a second motion, plaintiff asked that the trial court vacate the October 22, 1987, order dismissing Siemans and reinstate Siemans as a party-defendant.

After several continuances, a hearing was held, at which time it was noted that plaintiff withdrew her motion to reconsider or vacate the order dismissing W.C. Heraeus, Gmbh. The trial court then denied plaintiff's motion to vacate the order dismissing Siemans and plaintiff then filed this timely appeal, to which the manufacturer is not a party. In the appeal plaintiff raises these two issues: (1) whether the trial court erred by granting Siemans' motion for dismissal, and (2) whether the trial court erred by denying plaintiff's motion to vacate the dismissal order and reinstate Siemans.

Plaintiff's first issue deals with an interpretation of subsections (a) and (b) of section 2-621 (Ill.Rev.Stat.1987, ch. 110, par. 2-621(a), (b)) which state:

(a) 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. The commencement of a product liability action based in whole or in part on the doctrine of strict liability in tort against such defendant or defendants shall toll the applicable statute of limitation and statute of repose relative to the defendant or defendants for purposes of asserting a strict liability in tort cause of action.

(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the 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 Section. Due diligence shall be exercised by the certifying defendant or defendants in providing the plaintiff with the correct identity of the manufacturer or manufacturers, and due diligence shall be exercised by the plaintiff in filing an action and obtaining jurisdiction over the manufacturer or manufacturers."

Initially, plaintiff argues that Siemans' dismissal from the case was erroneous because it was "premature". She contends that a literal reading of the statute requires that a nonmanufacturing defendant must remain a party-defendant until such time as the manufacturer has been named, served with process and required to answer or otherwise plead. Consequently, plaintiff claims that the trial court erred by dismissing Siemans on October 22, 1987, when she had not yet effectuated service of process upon the manufacturer. Additionally, plaintiff contends that she was prejudiced by Siemans' failure to timely certify the identity of the manufacturer and by Siemans' failure to correctly identify the manufacturer's name. We find no merit in any of these arguments.

While it is true that the trial court dismissed Siemans prior to the time that plaintiff served process on the manufacturer and, for that reason, the dismissal was premature, we find this fact to be of little consequence. First of all, plaintiff named the manufacturer in the original complaint, which was filed June 5, 1985. The record clearly demonstrates that plaintiff refrained from serving the manufacturer merely because she did not wish to undergo the difficulty or incur the expense of serving a foreign defendant. In fact, even after Siemans certified the identity of the manufacturer in its section 2-621 motion filed on April 23, 1987, and after a hearing was held on the motion on July 15, 1987, and the motion was granted on October 22, 1987, plaintiff made no attempt to obtain service on the manufacturer until January 5, 1988. Plaintiff's failure to exercise due diligence in effectuating service on the manufacturer, although known to plaintiff from the onset, enabled the trial court to exercise its discretion in dismissing Siemans, subject to reinstatement, based upon the plaintiff's representation that the manufacturer would be served immediately.

Secondly, a dismissal pursuant to Section 2-621 of the Code is a non-final order, which may be vacated at any time upon a showing of error. (Kellerman v. Crowe (1987), 119 Ill.2d 111, 115 Ill.Dec. 591, 518 N.E.2d 116.) Thus, a dismissal that is granted prematurely need not be deemed error if, ultimately, the defendant would have been entitled to a dismissal. In this case, once plaintiff served the manufacturer and the manufacturer answered or otherwise pleaded, on February 3, 1988, Siemans became entitled to dismissal. For this reason we do not find the October 22, 1987, dismissal to have constituted error.

Furthermore, although it is true that all entities in the distributive chain of an allegedly defective product are subject to liability in a strict liability in tort action (Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 73 Ill.Dec. 350, 454 N.E.2d 210; Sims v. Teepak, Inc. (1986), 143 Ill.App.3d 865, 97 Ill.Dec. 914, 493 N.E.2d 721), this does not necessarily give a plaintiff the right to elect whom he/she will sue. The purpose of section 2-621 of the Code is to provide a "sellers exception" whereby any nonmanufacturing defendant, who has not been shown to have created or contributed to the alleged defect, may defer liability to the ultimate wrong-doer, the manufacturer. (Logan v. West Coast Cycle Supply Co. (1990), 197 Ill.App.3d 185, 143 Ill.Dec. 153, 553 N.E.2d 1139; Sims v. Teepak, Inc., 143 Ill.App.3d at 868, ...