M & S Indus. Co. v. Allahverdi

• Decision Date: 09 August 2018
• Docket Number: No. 1-17-2028,1-17-2028
• Citation: 2018 IL App (1st) 172028,427 Ill.Dec. 90,117 N.E.3d 475
• Parties: M & S INDUSTRIAL CO., INC., Plaintiff-Appellant, v. Fred ALLAHVERDI d/b/a Pars Auto Repair, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 172028
117 N.E.3d 475
427 Ill.Dec. 90

M & S INDUSTRIAL CO., INC., Plaintiff-Appellant,
v.
Fred ALLAHVERDI d/b/a Pars Auto Repair, Defendant-Appellee.

No. 1-17-2028

Appellate Court of Illinois, First District, FOURTH DIVISION.

August 9, 2018
Rehearing denied September 12, 2018

Robert J. Augenlicht and Michael O. Kurtz, of Chicago, for appellant.

Maisel & Associates, of Naperville (Anthony J. Ritrovato, of counsel), for appellee.

JUSTICE BURKE delivered the judgment of the court, with opinion.

427 Ill.Dec. 92

¶ 1 Plaintiff M & S Industrial Co., Inc. (M & S), appeals the dismissal of its complaint against defendant Fred Allahverdi arising out of injuries sustained when the roof of Allahverdi's building uplifted during a wind storm and struck nearby power lines, resulting in an electrical surge that damaged M & S's property. The circuit court dismissed the complaint on grounds that M & S's claim was barred by the statute of limitations applicable to construction negligence ( 735 ILCS 5/13-214(a) (West 2012) ). Based on our determination that section 13-214(a) of the Code of Civil Procedure (Code) applies to M & S's claim and that, as a matter of law, the four-year limitations period expired before M & S filed suit, we affirm.

¶ 2 I. BACKGROUND

¶ 3 M & S filed its initial complaint on August 14, 2015. M & S alleged that Allahverdi operated an automobile sales and service business on his property and that he or his employees negligently left a large overhead dock door open during unsafe weather conditions—severely high winds—in Chicago on October 27, 2010. Due to the high winds, a portion of the roof of Allahverdi's building detached and struck nearby power lines that serviced M & S's building. M & S alleged that the resulting electrical surge damaged M & S's property, namely, computer numerical control machines, which M & S uses to manufacture sophisticated metal components for the defense industry.

¶ 4 M & S later filed a second amended complaint that alleged in pertinent part:

"4. On October 27, 2010, ALLAHVERDI was personally aware of a significant and hazardous structural defect present on the * * * location, to wit: an improperly installed and maintained roof which was not structurally sound, not constructed in accordance with industry standards and not attached to the main structure of the building. ALLAHVERDI's knowledge was based on his role as a contractor in the construction of the structure at the * * * location, when and where the roof was built.

* * *

6. On October 27, 2010, in the middle of this windstorm and despite the dangerous wind conditions, employees of ALLAHVERDI left a large overhead dock door on the * * * location open to the exterior environment.

7. As a result of this opening exposing the interior of the * * * location to the windstorm and the inability of the roof to resist uplift forces because it was

117 N.E.3d 478

427 Ill.Dec. 93

improperly installed and maintained, not constructed in accordance with industry standards, and not attached to the main structure, a portion of the building's roof detached from the building and struck a nearby power supply line * * *."

¶ 5 In addition, the complaint alleged that Allahverdi "owed a duty of care to exercise ordinary care to avoid injury and damage" and to "mitigate unsafe conditions on the property" and he breached this duty

"a. By failing to replace the structurally unsound roof, and/or

b. By failing to secure the roof to the main structure of the building; and/or

c. By allowing the roof of the property * * * to be installed and maintained in such dangerous condition."

¶ 6 Alternatively, the complaint pled that Allahverdi owed a duty of care under the building code regulations and breached this duty. The complaint alleged that, as a result of the occurrence, Allahverdi was issued a citation for building code violations by the City of Chicago on October 28, 2010.

¶ 7 Allahverdi filed a motion under section 2-619 of the Code (id. § 2-619) to dismiss the second amended complaint asserting that causation was too attenuated to be foreseeable. The circuit court granted this motion with prejudice.

¶ 8 M & S filed a motion to reconsider and vacate the dismissal. The parties submitted additional briefing and supplemental authority. M & S filed the affidavit and report of Dennis McCann, an engineering consultant hired by M & S in March 2016 to perform an engineering analysis of the roof of Allahverdi's building. McCann averred that he inspected the interior of Allahverdi's roof on March 26, 2016. McCann averred that the deck panels of the roof were not attached to the steel roof joists of the building, in violation of building code requirements, and that, had the roof been attached properly, it should have been able to resist the strong winds on October 27, 2010. Further, McCann averred that the defects he observed were not readily observable except upon close inspection.

¶ 9 In Allahverdi's response, he asserted, inter alia , that plaintiff's second amended complaint was barred by the four-year statute of limitations applicable to claims of construction negligence (id. § 13-214(a) ).

¶ 10 In its reply, M & S argued that the motion to dismiss should be denied as it involved questions of fact and section 13-214(a) did not apply because it was not raising a claim of construction negligence. Rather, it was suing Allahverdi for maintaining a hazardous condition on his land of which Allahverdi was aware. Alternatively, M & S argued that the discovery rule applied to toll the construction statute of limitations because it could not have discovered the defective roof until it hired McCann in March 2016 to examine Allahverdi's building using a scissor lift and high-intensity lights.

¶ 11 Following a hearing April 12, 2017, the circuit court allowed submission of additional materials and permitted Allahverdi to amend his prior motion to dismiss to add a statute of limitations argument under 2-619(a)(5) of the Code based on section 13-214(a). Allahverdi contended that the discovery rule did not apply because the alleged injury was caused by a sudden, traumatic event—the windstorm that blew the roof onto the power lines—and thus the claim accrued on October 27, 2010.

¶ 12 After oral arguments on July 19, 2017, the circuit court entered an order granting both M & S's motion to reconsider and Allahverdi's amended motion to dismiss under section 2619(a)(5). The court

117 N.E.3d 479

427 Ill.Dec. 94

held that M & S's claim was a construction negligence claim and 13-214(a) applied. It further held that the injury sustained was a sudden traumatic event placing M & S on notice of a cause of action as of October 27, 2010, and the discovery rule did not apply. The court dismissed the second amended complaint with prejudice. M & S filed a timely notice of appeal.

¶ 13 II. ANALYSIS

¶ 14 A. Standard of Review

¶ 15 Whether a claim is barred by the statute of limitations "is a matter properly raised by a section 2-619 motion to dismiss." Porter v. Decatur Memorial Hospital , 227 Ill. 2d 343, 352, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008). When reviewing a 2-619 motion to dismiss, we "must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party" and take as true all well-pleaded facts and reasonable inferences derived therefrom. Id. "It is well settled that our review of a section 2-619 dismissal is de novo ." Id. Similarly, "[t]he applicability of a statute of limitations to a cause of action presents a legal question we review de novo ." Travelers Casualty & Surety Co. v. Bowman , 229 Ill. 2d 461, 466, 323 Ill.Dec. 311, 893 N.E.2d 583 (2008).

¶ 16 B. Construction Negligence Statute of Limitations

¶ 17 M & S maintains on appeal that the circuit court erred in holding that section 13-214(a) applies because its claim sounds in premises liability, not construction negligence. M & S asserts that its complaint sought to hold Allahverdi liable based on a landowner's duty to exercise reasonable care to prevent and mitigate dangerous conditions on his property and alleged that he was aware of the dangerous condition—the improperly attached roof—because he served as a contractor in the construction of the roof and he breached his duty by failing to fix the dangerous condition and/or failed to maintain his property in accordance with the Chicago Building Code.

¶ 18 Allahverdi contends that the trial court correctly applied section 13-214(a) as M & S's claims are all based on the initial construction of the roof and his activity as the contractor and installer, despite M & S's attempts to plead around construction negligence. Allahverdi argues that application of section 13-214(a) depends not on the status of the defendant as property owner or construction professional but upon the activity of the defendant.

¶ 19 Section 13-214(a) provides:

"(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an

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