Hartford Fire Ins. Co. v. Architectural Management, Inc.

• Decision Date: 26 June 1987
• Docket Number: No. 86-1474,No. 364U,364U,86-1474
• Citation: 511 N.E.2d 706,158 Ill.App.3d 515
• Parties: , 110 Ill.Dec. 529 The HARTFORD FIRE INSURANCE COMPANY, a corporation, and The Home Insurance Company of Illinois, a corporation, as subrogees of Valley View Community Unit School District, and the Capital Development Board of the State of Illinois, Plaintiffs, v. ARCHITECTURAL MANAGEMENT, INC., a corporation, Carmeleo M. Cea, Certified Security Systems, Inc., a corporation, FGM, Inc., a corporation, Jack Goldman, Richard Roth, R.L. Roth & Associates, Ltd., a corporation, a/k/a Roth, Strock & Associates, a corporation, Simplex Time Recorder Co., a corporation, and Sanger K. Westphal, Defendants. Jack GOLDMAN and FGM, Inc., a foreign corporation, Third Party Plaintiffs-Appellants, v. KC & M ENGINEERS & ASSOCIATES, a corporation, Ronald Millies and William H. Peterson, Third Party Defendants-Appellees (Architectural Management, Inc., a corporation, Singer K. Westphal, and Hevac Engineers, Inc., Third Party Defendants).
• Court: United States Appellate Court of Illinois

Page 706

511 N.E.2d 706

158 Ill.App.3d 515, 110 Ill.Dec. 529

The HARTFORD FIRE INSURANCE COMPANY, a corporation, and The

Home Insurance Company of Illinois, a corporation, as

subrogees of Valley View Community Unit School District No.

364U, and the Capital Development Board of the State of

Illinois, Plaintiffs, v. ARCHITECTURAL MANAGEMENT, INC., a corporation, Carmeleo M.

Cea, Certified Security Systems, Inc., a corporation, FGM,

Inc., a corporation, Jack Goldman, Richard Roth, R.L. Roth &

Associates, Ltd., a corporation, a/k/a Roth, Strock &

Associates, a corporation, Simplex Time Recorder Co., a

corporation, and Sanger K. Westphal, Defendants.

Jack GOLDMAN and FGM, Inc., a foreign corporation, Third

Party Plaintiffs-Appellants, v. KC & M ENGINEERS & ASSOCIATES, a corporation, Ronald Millies and William H. Peterson, Third Party Defendants-Appellees

(Architectural Management, Inc., a corporation, Singer K.

Westphal, and Hevac Engineers, Inc., Third Party Defendants).

No. 86-1474.

Appellate Court of Illinois First District, Fifth Division.

June 26, 1987.

Rehearing Denied Aug. 21, 1987.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Kevin R. Sido and Nancy G. Lischer, of counsel), for third party plaintiffs-appellants.

Clausen Miller, Gorman, Caffrey & Witous, P.C., Chicago (James M. Hoey, James R. Swinehart, Mayer Goldberg, of counsel), for third-party defendant-appellee, William Peterson.

Lurie Sklar & Simon, Ltd., Chicago, for third-party defendants-appellees, KC & M Engineers & Associates and Ronald Millies.

Presiding Justice SULLIVAN delivered the opinion of the court:

This appeal is from the dismissal of a third-party complaint for contribution on the ground that it was not filed within the time prescribed by law.

On December 30, 1981, an action was filed by the subrogees of a school district for damages resulting from a fire at the Oakview School in Bolingbrook, Illinois on January 1, 1980. The complaint, which was amended on September 13, 1982, named ten defendants, including the architects, FGM, Inc. and Jack Goldman (collectively FGM) alleging, inter alia, various acts of negligence by them in the design and construction of the school. On December 17, 1985, FGM filed a third-party complaint for contribution against the electrical engineers, KC & M Engineers and Associates, Inc. and Ronald Millies (collectively KC & M) and the mechanical engineers, Hevac Engineers, Inc. (Hevac) and William Peterson. KC & M moved to dismiss FGM's complaint on the ground that it was time-barred by section 13-214(b) of the Code of Civil Procedure (the Code) (Ill.Rev.Stat. 1981, ch. 110, par. 13-214(b)), the construction statute of repose. In addition thereto, Hevac and Peterson also moved to dismiss the complaint on the ground that it was not timely filed under section 94 of the Business Corporation Act (Ill.Rev.Stat. 1971, ch. 32, Sec. 157.94).

In support of its motion, KC & M submitted copies of the pleadings filed in a third-party action for contribution brought in October 1984, by Simplex Time Recorder Co., another of the original defendants. Among those documents were KC & M's motion to dismiss Simplex's complaint on the basis of section 13-214(b), to which was attached an excerpt from the evidence deposition of John W. Moore, the State Director for the Illinois School Building Commission who was responsible for overseeing the design and construction of the school, in which Moore read from a letter he wrote to Goldman, dated July 1, 1971, stating that "The Oakview School Design Project sponsored by the Commission has reached a successful conclusion." Also attached was the order dismissing the Simplex action on June 6, 1985. Following a hearing on May 5, 1986, the trial court granted FGM's motion to voluntarily dismiss Hevac and, upon a finding that the action was not brought within the time permitted by section 13-214(b), also granted the remaining third-party defendants' motions to dismiss FGM's complaint. This appeal followed.

OPINION:

Section 13-214, pursuant to which the complaint was dismissed, provided 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 2 years from the time the person bringing an action, * * * knew or should reasonably have known of such act or omission.

(b) No action based upon tort, contract or otherwise may be brought 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 after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a) of this Section." ¹

FGM contends that section 13-214(b) is inapplicable to its third-party contribution action, positing that the construction statute of repose applies only to "direct" actions by the original plaintiff against a tortfeasor in the construction industry and "has no application to a person's right of action under the Contribution Act." FGM maintains that the only applicable time limitation is that found in section 13-204 (Ill.Rev.Stat. 1983, ch. 110, par. 13-204), because, unlike section 13-214, it specifically governs actions for contribution. Section 13-204 states:

"No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party's pro rata share more than 2 years after the party seeking contribution has made such payment toward discharge of his or her liability."

Noting first that while section 13-204 expressly bars contribution actions brought more than two years after payment by a joint tortfeasor, it does not state that all contribution actions brought within two years are timely, KC & M and Peterson assert that it is clear from both the language and legislative history of section 13-214 that the limitations and repose period provided therein apply to third-party claims for contribution arising out of an act or omission in the construction process. We agree.

As quoted above, the language of section 13-214 broadly and unequivocally states that "No action based on tort, contract or otherwise may be brought against any person for an act or omission [in the construction process] after 12 years have elapsed." Ill.Rev.Stat. 1981, ch. 110, par. 13-214(b). (Emphasis added.)

That section 13-214 was intended to encompass all actions against persons involved in the construction-related activities enumerated therein is manifest not only from the language employed but also from statements made during the legislative debates preceding its passage.

Representative Dunn, who initially introduced the bill later codified as section 13-214 (House Bill 1031) to provide for limitation and repose periods of 2 and 8 years, respectively--which were subsequently extended by amendment to 2 and 12 years, respectively, on the recommendation of the Governor,--explained to the members of the House, " * * * so, there can be a total of 10 years. Any claim * * * which is not discovered within the 8 year period is barred." 80th Ill.Gen.Assem., House Proceedings, May 25, 1979, at 30.

The scope of section 13-214 was also addressed by Representative Leinenweber, an opponent of House Bill 1031. Urging defeat of it, he cautioned:

"I'd like to point out what you're doing to an owner of a building. An * * * owner of a building hires an architect to construct a building for him. The architect, at the end of 8 years through his negligence, is relieved of any responsibility if that building collapses. But, I tell you, the owner is not. Now currently, what happens, if someone hires an architect to design a building for him, and that building * * * say like up on Michigan Avenue, a sheet of marble falls off of that building, then the owner will be sued for negligence in allowing a sheet of marble...