Fireman's Fund Ins. Co. v. Rockford Heating & Air Conditioning, Inc.

• Decision Date: 23 April 2014
• Docket Number: No. 2–13–0566.,2–13–0566.
• Citation: 9 N.E.3d 1154,381 Ill.Dec. 35,2014 IL App (2d) 130566
• Parties: FIREMAN'S FUND INSURANCE COMPANY, as Subrogee of First Rockford Group, Inc., Plaintiff–Appellant, v. ROCKFORD HEATING AND AIR CONDITIONING, INC., Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 130566

9 N.E.3d 1154

381 Ill.Dec. 35

FIREMAN'S FUND INSURANCE COMPANY, as Subrogee of First Rockford Group, Inc., Plaintiff–Appellant,

v.ROCKFORD HEATING AND AIR CONDITIONING, INC., Defendant–Appellee.

No. 2–13–0566.

Appellate Court of Illinois, Second District.

April 23, 2014.

Scott J. Larsen and Michael C. Keefe, both of Larsen Law Firm, P.C., of Chicago, for appellant.

John W. France and Chantel R. Bielskis, both of Cicero, France, Barch & Alexander, P.C., of Rockford, for appellee.

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Fireman's Fund Insurance Company (Fireman's Fund), as subrogee of First Rockford Group, Inc. (First Rockford), appeals the trial court's order granting the motion to dismiss filed by defendant, Rockford Heating and Air Conditioning, Inc. (Rockford Heating), pursuant to section 2–619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(5) (West 2010)) on statute-of-limitations grounds. We affirm.

¶ 2 I. BACKGROUND

¶ 3 First Rockford was engaged in the business of constructing commercial properties. Fireman's Fund insured First Rockford for, inter alia, property damage to a building that was under construction in Rockford, Illinois.

¶ 4 The complaint alleged the following. Sometime before February 1, 2008, First Rockford installed two temporary hanging furnaces to heat the building while First Rockford installed permanent flooring. First Rockford hired Rockford Heating to install a ventilation system for the temporary furnaces. On February 1, a fire occurred in the building, originating in one of the furnaces, and caused damage to the building's walls and ceiling. Under the terms of the insurance contract, Fireman's Fund paid a total of $67,208.97 in damages to First Rockford.

¶ 5 On May 18, 2012, Fireman's Fund, as subrogee of First Rockford, filed a complaint in the circuit court of Winnebago County, alleging that Rockford Heating was negligent by failing to exercise a reasonable degree of care and caution in the construction and installation of the ventilation system for the two temporary furnaces. The complaint alleged that Rockford Heating's negligence caused the fire.

¶ 6 On June 25, 2012, Rockford Heating filed a motion to dismiss the complaint pursuant to section 2–619(a)(5) of the Code (735 ILCS 5/2–619(a)(5) (West 2010)), arguing that the four-year limitations period provided in section 13–214(a) of the Code (735 ILCS 5/13–214(a) (West 2010)) barred Fireman's Fund's action. On July 18, the trial court granted Rockford Heating's motion to dismiss. On November 29, the trial court vacated the dismissal and set a briefing schedule on the motion. On May 1, 2013, after briefing and arguments, the trial court granted the motion. Fireman's Fund timely appealed.

¶ 7 II. ANALYSIS

¶ 8 Fireman's Fund argues that its complaint was timely because Rockford Heating's construction and installation activity did not fall under the purview of section 13–214(a) of the Code (735 ILCS 5/13–214(a) (West 2010)); specifically, Fireman's Fund asserts that, because the ventilation system was temporary, it did not constitute an “improvement to real property” as contemplated by the statute. Fireman's Fund contends that the five-year limitations period provided in section 13–205 of the Code (735 ILCS 5/13–205 (West 2010)) applies and that therefore the complaint was not time-barred. Rockford Heating contends that the trial court was correct in granting its motion to dismiss, because Fireman's Fund filed its complaint four years and three months after the fire occurred and therefore the complaint was barred by the four-year limitations period provided in section 13–214(a) of the Code.

¶ 9 Section 2–619(a)(5) allows a cause of action to be dismissed if it was not commenced within the time limited by law. Compton v. Ubilluz, 351 Ill.App.3d 223, 227–28, 285 Ill.Dec. 346, 811 N.E.2d 1225 (2004). We review de novo a dismissal pursuant to section 2–619, and, as part of our review, we accept as true all well-pleaded facts contained in the plaintiff's complaint and in any uncontradicted evidence submitted with the motion. Amalgamated Transit Union, Local 308 v. Chicago Transit Authority, 2012 IL App (1st) 112517, ¶ 12, 365 Ill.Dec. 249, 978 N.E.2d 271. The question on appeal is whether, absent any genuine issue of material fact, the dismissal was proper as a matter of law. Id. In addition, the application of a statute of limitations to a cause of action presents a legal question, which is likewise reviewed de novo. Travelers Casualty & Surety Co. v. Bowman, 229 Ill.2d 461, 466, 323 Ill.Dec. 311, 893 N.E.2d 583 (2008).

¶ 10 The Limitations Act contained in article 13 of the Code establishes time limitations on personal actions. Section 13–205 provides for a five-year limitations period for actions to recover damages for injuries done to real property. On the other hand, section 13–214(a), entitled “Construction–Design management and supervision,” provides in pertinent part:

“(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 improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (Emphasis added.) 735 ILCS 5/13–214(a) (West 2010).

¶ 11 Fireman's Fund argues that Rockford Heating was merely a subcontractor doing a temporary installation on the building. Rockford Heating's role was not designing, planning, supervising, observing, or managing the construction. Thus, the issue is whether Rockford Heating constructed “an improvement to real property.” The term “improvement to real property” is not defined. Our role as the reviewing court is to construe section 13–214(a), ascertaining and giving effect to the legislature's intent. People v. Jameson, 162 Ill.2d 282, 287–89, 205 Ill.Dec. 90, 642 N.E.2d 1207 (1994). Ordinarily, the best evidence of the legislature's intent is the language of the statute itself. Id. However, a statute's language is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. In this case, the parties offer conflicting interpretations of the term “improvement to real property” in section 13–214(a). We find that both interpretations are reasonable. Where the language of a statute is ambiguous, it is appropriate to consider other sources to ascertain the legislature's intent. Id.

¶ 12 We are guided by the legislative history of section 13–214. See People v. Collins, 214 Ill.2d 206, 214, 291 Ill.Dec. 686, 824 N.E.2d 262 (2005). The Appellate Court, First District, in Adcock v. Montgomery Elevator Co., 274 Ill.App.3d 519, 211 Ill.Dec. 169, 654 N.E.2d 631 (1995), addressed the issue of whether a manufacturer is afforded protection under the repose period provided in section 13–214(b), quoting the following portions of debates in the Illinois General Assembly:

“ ‘This bill would provide for an eight year statute of limitations against construction of improvements to real property by architects, contractors and engineers.

* * *

* * * [W]e have enacted the products liability statute of limitations and a statute of limitations for physicians. In light of that background, this seems like a reasonable thing to do to protect those who construct improvements to real property.' (81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 29–30 (statements of Representative Dunn).)” Id. at 522, 211 Ill.Dec. 169, 654 N.E.2d 631.

The record of the same House debates also shows the following exchange between Representatives Dunn and Brummer:

“ ‘Brummer: And it would apply to the architects and engineers only, not to the contractor?

Dunn: No. It would apply to the architect, the engineer, the contractor, anyone who is involved in the, in the [ sic ] planning, supervision, or the construction of the improvement to real property.' 81st Ill. Gen. Assem., House Proceedings, May 25, 1979, at 31 (statements of Representatives Brummer and Dunn).” Id. at 522–23, 211 Ill.Dec. 169, 654 N.E.2d 631.

Thus, we conclude that the legislature intended to have the statute apply to “ anyone who is involved” in the construction of an improvement.

¶ 13 Further support for our finding is found in Prate Installations, Inc. v. Thomas, 363 Ill.App.3d 216, 299 Ill.Dec. 853, 842 N.E.2d 1205 (2006) (in the context of a lawsuit against a homeowner for failure to pay a roofing contractor, the four-year statute of limitations did not apply to the defendant homeowners). In Prate, the court cited the legislative history revealing that the purpose of section 13–214(a) was to provide relief for professionals “who are trying to exercise their sound judgment in the design and construction of improvements to real property.” (Internal quotation marks omitted.) Id. at 218, 299 Ill.Dec. 853, 842 N.E.2d 1205. Citing Prate, Fireman's Fund argues, “just because the damages occurred on a construction site does not mean that the four-year statute applies.” However, this statement is an oversimplification; our inquiry has to consider not only the role of Rockford Heating as a subcontractor but also the question of whether the ventilation system itself was, as a matter of law, an “improvement to real property” as contemplated by the legislature.

¶ 14 Whether an item constitutes an improvement to real property is a question of law; however, resolution of this question is grounded in fact. St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill.2d 1, 3, 178 Ill.Dec. 761, 605 N.E.2d 555 (1992). Fireman's Fund points out that, in St. Louis, the supreme court stated that relevant criteria for determining what constitutes an improvement to real property include: whether the addition was meant to be permanent or temporary,...