20 Ill.2d 406, 427, 170 N.E.2d 881; see also Elliott v. Willis (1982), 92 Ill.2d 530, 535, 442 N.E.2d 163. • 3, 4 A cause of action for loss of consortium is a tort action based on an injury to the personal relationship established by the marriage contract. ( Mitchell v. White Motor Co. (1974), 58 Ill.2d 159, 162, 317 N.E.2d 505; Hammond v. North American Asbestos Corp. (1982), 105 Ill. App.3d 1033, 1040, 435 N.E.2d 540.) It is a separate cause of action from the impaired spouse's claim for his own injury ( Mitchell v. White Motor Co. (1974), 58 Ill.2d 159, 163, 317 N.E.2d 505; Wood v. Mobil Chemical Co. (1977), 50 Ill. App.3d 465, 477, 365 N.E.2d 1087), but derives from that claim.
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 v. White Motor Co., 58 Ill.2d 159, 162-63, 317 N.E.2d 505, 506 (1974) (loss of consortium not direct physical injury and, therefore, falls under residual clause of section 13-205);Neikirk v. Central Ill. LightCo., 128 Ill. App.3d 1069, 1072, 84 Ill.Dec. 261, 262-63, 471 N.E.2d 1027, 1028-29 (1984); Jones v. Siesennop, 55 Ill. App.3d 1037, 1040, 13 Ill.Dec. 800, 803, 371 N.E.2d 892, 895 (1977); Schreiber v. Eastern Airlines, Inc., 38 Ill. App.3d 556, 558, 348 N.E.2d 218, 220 (1976); Doerr v. Villate, 74 Ill. App.2d 332, 337-38, 220 N.E.2d 767, 770 (1966) (woman's malpractice action against medical doctor who failed to sterilize her husband based on breach of contract and, therefore, falls under section 13-205); Shedd v. Patterson, 230 Ill. App. 553, 556-57 (1923) (malicious prosecution), aff'd, 312 Ill. 371, 144 N.E. 5 (1924); Denslow v. Hutchinson, 152 Ill. App. 502 (1910); see also Gladich, 703 F. Supp. at 1334; Johnson, 624 F. Supp. at 1071-73; Shorters v. City of Chicago, 617 F. Supp. 661, 664-65 (N.D.Ill. 1985), overruled in part on other grounds, K
An examination of the application of the two-year statute makes it clear that the statute is applied narrowly and does not extend to such injuries. In Mitchell v. White Motor Co., 58 Ill.2d 159, 317 N.E.2d 505 (1974), the Illinois Supreme Court held that the five-year statute, rather than the two-year statute, applies to an action for loss of consortium. The court rejected the argument that an action for loss of consortium should be governed by the same limitations period which applies to a cause of action asserted by the spouse who suffered the direct injuries, and it rejected the argument that the plaintiff's loss of consortium should be characterized as an injury to her person.
That reading has persisted to the present day. Just a decade ago Mitchell v. White Motor Co., 58 Ill.2d 159, 161, 317 N.E.2d 505, 506 (1974) (emphasis in original) upheld a line of Illinois Appellate Court cases (beginning with Bassett) that had applied the residual five-year limitations period in cases: where a plaintiff's cause of action arises from a personal injury to a third person but does not involve a direct physical injury to the person of the plaintiff.
Paragraph 13-203 in effect overruled a long line of Illinois cases holding that actions for loss of consortium were governed by the general five year statute of limitations. In the case of Mitchell v. White Motor Company, 58 Ill.2d 159, 317 N.E.2d 505, the issue was whether the two year statute of limitations for personal injuries or the five year general statute of limitations applied to actions for loss of consortium. Mitchell cited opinions by Illinois and Federal courts holding the five year statute of limitations rather than the two year statute of limitations for injury to the person applicable to causes of action under the Family Expense Act and claims for loss of consortium. 317 N.E.2d 505 at 506. The Court agreed with the cases holding the five year general statute of limitations applicable to such actions:
We have long held that "it is the nature of the plaintiff's injury rather than the nature of the facts from which the claim arises which should determine what limitations period should apply." Mitchell v. White Motor Co., 58 Ill.2d 159, 162 (1974); Handtoffski v. ChicagoConsolidated Traction Co., 274 Ill. 282 (1916). Thus, even though isolated allegations in a tort complaint may speak in terms of a contractual breach, the claim is not necessarily afforded the longer, 10-year period of limitations applicable to actions based on written contracts.
Loss of consortium is "based not on an injury to the [deprived spouse's] person but on an injury to a personal relationship established by the marriage contract." ( Mitchell v. White Motor Co. (1974), 58 Ill.2d 159, 162.) "[A]lthough actions for personal injuries and actions for loss of consortium may derive from the same operative facts, they are legally distinct."
Section 13-205 provides that actions on verbal contracts, on arbitration awards, 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." 735 ILCS 5/13-205 (West 2012). ¶ 11 In support of her argument for the five-year statute, Patricia cites to Mitchell v. White Motor Co., 58 Ill. 2d 159 (1974). In Mitchell, our supreme court held that the language of the five-year statute of limitations of a catchall provision, as opposed to the two-year statute of limitations for personal injury, was applicable to a loss of consortium claim, reasoning that a loss of consortium action was not based on injury to the plaintiff's person but was derived from a personal injury to a third person.
Rather, “although actions for personal injuries and actions for loss of consortium may derive from the same operative facts, they are legally distinct.” Mitchell v. White Motor Co., 58 Ill.2d 159, 317 N.E.2d 505, 507 (1974); see also Schrock v. Shoemaker, 159 Ill.2d 533, 203 Ill.Dec. 787, 640 N.E.2d 937, 941 (1994) (“[A]n action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society.”); Vickery v. Westinghouse–Haztech, Inc., 956 F.2d 161, 162 (7th Cir.1992) (“a wife possesses a right of consortium in her own right; it is not a right of her husband which she obtains derivatively, as by inheritance.”)
In identifying the applicable limitations period, Armstrong recognized, "[w]e have long held that `it is the nature of the plaintiff's injury rather than the nature of the facts from which the claim arises which should determine what limitations period should apply.'" Armstrong, 174 Ill. 2d at 286-87 (quoting Mitchell v. White Motor Co., 58 Ill. 2d 159, 162 (1974), and citing Handtoffskiv. Chicago Consolidated Traction Co., 274 Ill. 282 (1916)).