Del Bianco v. American Motorists Ins. Co.

• Decision Date: 18 June 1979
• Docket Number: No. 77-1862,77-1862
• Parties: , 29 Ill.Dec. 563 A. J. DEL BIANCO, d/b/a Del Bianco & Associates, Plaintiff-Appellant, v. The AMERICAN MOTORISTS INSURANCE COMPANY, an Illinois Corporation, Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 120

392 N.E.2d 120

73 Ill.App.3d 743, 29 Ill.Dec. 563

A. J. DEL BIANCO, d/b/a Del Bianco & Associates, Plaintiff-Appellant, v. The AMERICAN MOTORISTS INSURANCE COMPANY, an Illinois Corporation, Defendant- Appellee.

No. 77-1862.

Appellate Court of Illinois, First District, First Division.

June 18, 1979.

Crooks, Gilligan & Kages, Chicago (John W. Gilligan, Chicago, of counsel), for plaintiff-appellant.

Meyers & Matthias, Chicago (Thomas K. Peterson, Chicago, of counsel), for defendant-appellee.

CAMPBELL, Justice:

The plaintiff appeals from an order of the circuit court of Cook County granting the defendant's motion for judgment on the pleadings as to all eight counts of the plaintiff's complaint. The issues for consideration on review are: (1) whether there were genuine issues of material fact which should have precluded the trial court from entering a judgment on the pleadings; (2) whether the "hold harmless" agreement was intended to indemnify the plaintiff from suits brought by the School District; and (3) whether the plaintiff's cause of action was barred by the applicable statutes of limitation. We affirm.

The following facts are pertinent to the disposition of this appeal.

The record discloses that on March 1, 1962, the plaintiff, A. J. Del Bianco, entered into a standard form owner-architect agreement with the Board of Education of School District No. 46 (School District) whereby the plaintiff was to perform architectural services in connection with the erection of the Streamwood Elementary School. On April 2, 1962 Consumers Construction Company (Consumers) entered into a written contract with the School District to construct the school. On January 31, 1962, prior to entering into this contract with the School District, Consumers was issued a comprehensive general liability policy by the defendant, The American Motorists Insurance Company. The defendant issued a certificate of insurance to the plaintiff on March 29, 1962 certifying the issuance of this policy to Consumers. A second certificate of insurance containing a "hold harmless" agreement drafted by the plaintiff was issued by the defendant on April 12, 1962 superseding the first certificate.

The construction of the school was completed on November 15, 1962. During and after construction various problems apparently developed with respect to the school's foundation. Consequently, on August 20, 1965 the School District filed a three-count complaint against the plaintiff, Consumers and Consumers' bonding company. Count II of the complaint alleged that the plaintiff had breached his contract with the School District and was negligent in performing his architectural services resulting in substantial damages to the School District's property.

The plaintiff made a demand upon Consumers to defend him in connection with the claims asserted by the School District pursuant to the "hold harmless" agreement. Consumers tendered the defense of this lawsuit to the defendant. When the defendant refused to defend Consumers or indemnify the plaintiff, Consumers proceeded to file a suit for declaratory judgment against the defendant in which the School District intervened. In granting the defendant's motion for summary judgment, the trial court ruled that the defendant had no duty to defend Consumers in the School District's 1965 lawsuit and that the policy in question did not provide coverage to Consumers under the allegations of that complaint. The appellate court affirmed that ruling on December 31, 1969. Consumers Construction Company v. American Motorists Insurance Company (1969), 118 Ill.App.2d 441, 254 N.E.2d 265.

Meanwhile, in August of 1968 an arbitration award was entered in favor of the School District and against the plaintiff in settlement of Count II of the School District's 1965 claim. On November 11, 1968 the trial court entered a judgment confirming this award and the plaintiff appealed. On February 19, 1969, prior to a decision in said appeal, a trust agreement was entered into between the School District and the plaintiff with regards to the settlement of Count II. The defendant refused to indemnify the plaintiff or participate in the negotiations which led to this settlement between the plaintiff and the School District.

On December 11, 1968, the plaintiff filed a complaint for declaratory judgment against Consumers for indemnification for the 1965 claim asserted against him by the School District. On February 28, 1969, a default judgment was entered against Consumers. The court ruled that Consumers was obligated to indemnify and hold harmless the plaintiff against all damages arising from the School District's 1965 suit. The defendant also refused to defend Consumers or indemnify the plaintiff in this action.

The School District entered into a written agreement with the plaintiff, Consumers and Consumers' bonding company on December 29, 1970 entitled "Agreement to Terminate Litigation" whereby the defendants in the 1965 lawsuit each agreed to pay to the School District a certain sum of money.

On October 27, 1972 the present action was instituted by the plaintiff, A. J. Del Bianco, against the defendant, American Motorist Insurance Company. The original complaint contained three counts. The defendant filed an answer to this complaint and a motion to dismiss for failure to state a cause of action and also because the statute of limitations barred the bringing of these actions. In December of 1974, the plaintiff filed Counts IV and V. The defendant again filed an answer and a motion to dismiss raising similar pleadings.

On February 18, 1975 the plaintiff refiled, as a part of his amended complaint, identical Counts I through V. Once again the defendant filed an answer and a motion to dismiss raising identical pleadings as previously alleged. On the same day the plaintiff filed, as a part of his amended complaint, Counts VI and VII. On March 31, 1977, pursuant to a court order, the defendant refiled the same answers and motions to dismiss as to Counts I through V as well as similar pleadings as to Counts VI and VII.

The plaintiff filed Count VIII, as an amendment to the amended complaint, on May 25, 1977. On June 10, 1977, the defendant filed its pleadings as to Count VIII including an answer and a motion to dismiss in which it again asserted that the plaintiff had failed to state a cause of action and that the action was barred by the statute of limitations. In addition, the defendant filed a brief in support of its motion to dismiss the various counts or for judgment on the pleadings as to all eight counts.

On September 15, 1977, an order was entered granting the defendant's motion for judgment on the pleadings as to Counts I through VIII. It is from this order that the plaintiff appeals.

Although the plaintiff presents several issues for our review, we need only determine whether the action is barred by the applicable statutes of limitations. The resolution of that issue is dispositive of this appeal. Therefore, we find it unnecessary to address the additional issues raised. "A reviewing court will not consider questions or contentions which are not essential to the determination of the case before it." Spunar v. Clark Oil and Refining Corp. (1977), 53 Ill.App.3d 477, 480, 11 Ill. Dec. 382, 368 N.E.2d 990.

A brief outline of recent Illinois decisions with regards to when a cause of action accrues so as to mark the beginning of the limitations period is warranted. In Tom Olesker's Exciting World of Fashion Inc. v. Dun and Bradstreet, Inc. (1975), 61 Ill.2d 129, 137, 334 N.E.2d 160, the court observed that "(t)he purpose of a statute of limitations is certainly not to shield a wrongdoer; rather it is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions * * *" Likewise, in Geneva Construction Co. v. Martin Transfer and Storage Co. (1954), 4 Ill.2d 273, 122 N.E.2d 540, the court reasoned that:

"(S)tatutes of limitation, like other statutes, must be construed in the light of their objectives. The basic policy of such statutes is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible." Geneva Construction Co. at 289, 290, 122 N.E.2d at 549.

Generally, the limitations period begins "when facts exist which authorize one party to maintain an action against another." (Davis v. Munie (1908), 235 Ill. 620, 622, 85 N.E. 943, 944.)

In other words, a statute of limitations "* * * does not commence to run until the party to be barred has a right to invoke the aid of the court to enforce his remedy." Maxwell v. Nieft (1942), 313 Ill.App. 354, 356, 40 N.E.2d 554, 555.

In order to determine when the plaintiff's cause of action accrued, we must first categorize the nature and elements of the various counts of the plaintiff's complaint.

The plaintiff initially alleges that Counts I through III of his amended complaint are tort actions and are, therefore, governed by the five-year statute of limitations provided for under section 15 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 16). The plaintiff goes on to argue that the limitations period on these actions commenced at the time he discovered or should have discovered the tortfeasor's negligence citing E. J. Korvette, Division of Spartan Industries, Inc. v. Esko Roofing Co. (1976), 38 Ill.App.3d 905, 350 N.E.2d 10, in support of this proposition. The plaintiff asserts that he had no way of discovering that the defendant had negligently or fraudulently issued the certificate of insurance until the defendant refused to defend Consumers or provide him with indemnification pursuant to the suit for declaratory judgment brought by the plaintiff against Consumers on December 11, 1968. Therefore, the plaintiff argues, his cause of action as to Counts I through III did not accrue until the 1968 filing of that action. Consequently, the...