By Eric Carlson on June 2, 2016

courtIn the Wolfe v. Armstrong International, Inc. case pending in Missouri Circuit Court for the City of St. Louis, various defendants obtained dismissal by arguing their wrongful death claims brought in Missouri were governed by the Illinois Wrongful Death Act and that the Missouri borrowing statute required application of Illinois’ two-year statute of limitations, rather than Missouri’s three-year statute of limitations.  Circuit Judge Julian Bush granted various defendants’ motions to dismiss and denied Plaintiffs’ motion to reconsider in April and May of this year.

Defendants moved to dismiss Plaintiffs’ Petition, arguing that Plaintiffs’ claims were time-barred under Missouri law because the Missouri borrowing statute, Mo. Rev. Stat. §516.190, required the Illinois two-year statute of limitations for wrongful death claims to be applied.  Plaintiffs’ Decedent was diagnosed with an asbestos related disease on or about April 28, 2011, and subsequently passed on November 9, 2012.  Plaintiffs filed their Petition for wrongful death on November 6, 2015, over four years after diagnosis but within three years after death.

Decedent lived in Illinois at the time of his death, the Plaintiffs are Illinois residents, and Decedent’s alleged exposures occurred in Illinois. Defendants argued these facts required Missouri’s borrowing statute to be applied because the action “originated” in Illinois; i.e., it was where the injury was “capable of ascertainment.” See Natalini v. Little, 185 S.W.3d 239, 243-46 (Mo. Ct. App. 2006).

Plaintiffs responded that the borrowing statute was limited by MO. REV. STAT. §516.30: “The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limit by such statute.”  This language prohibited application of the Missouri borrowing statute.

Perhaps anticipating the Court’s ruling on defendants’ motion to dismiss, Plaintiffs voluntarily dismissed the initial moving defendant and filed an application for change of judge (Judge Julian Bush was the assigned motions judge for this case). Judge Bush dismissed Plaintiffs’ application as untimely and granted the motion to dismiss on behalf of the remaining defendants who had joined in the motion.  The Court noted this case presented an “odd . . . . puzzle” and found that because the Illinois Wrongful Death Act contained a “built-in” statute of limitations, it must be applied under the provision of §516.190 mandating that “such action shall be brought within the time limit by such statute.”

Not surprisingly, Plaintiffs moved the Court to reconsider the dismissal but were rebuffed by the Court. Plaintiffs argued that their cause of action was brought under the Missouri Wrongful Death Act (and its corresponding three-year statute of limitations) and not the Illinois Wrongful Death Act (and its two-year statute of limitations).  Judge Bush’s order denying Plaintiffs’ motion to reconsider stated that “Plaintiffs have cited no controlling or persuasive authority in support of their contention that Missouri Wrongful Death statute applies where the plaintiffs reside in Illinois, their decedent resided in Illinois, and their decedent suffered the asbestos exposures that caused his death while working in Illinois.”

Judge Bush’s Order illustrates the utility of the Missouri borrowing statute, giving defendants the opportunity to push back when plaintiffs forum shop and float their time-barred Illinois-based claims across the Mississippi River.