LaSalle Nat. Bank v. Edward M. Cohon & Associates, Ltd.

• Decision Date: 07 December 1988
• Docket Number: No. 87-2886,87-2886
• Citation: 126 Ill.Dec. 629,177 Ill.App.3d 464,532 N.E.2d 314
• Court: United States Appellate Court of Illinois
• Parties: , 126 Ill.Dec. 629 LaSALLE NATIONAL BANK, as Trustee Plaintiff, v. EDWARD M. COHON & ASSOCIATES, LTD. Defendants (Samartano & Company, Third- Party Plaintiff-Appellant, v. United States Steel Corporation and Arlington Structural Steel, Inc., a corporation, Third-Party Defendants; The Capitol Companies, Inc., a corporation, Joseph J. Freed & Associates, Inc., a corporation and Midwest Concrete Products Co., a corporation, Third-Party Defendants-Appellees).

Page 314

532 N.E.2d 314

177 Ill.App.3d 464, 126 Ill.Dec. 629

LaSALLE NATIONAL BANK, as Trustee Plaintiff, v. EDWARD M. COHON & ASSOCIATES, LTD. Defendants (Samartano &

Company, Third- Party Plaintiff-Appellant, v. United States

Steel Corporation and Arlington Structural Steel, Inc., a

corporation, Third-Party Defendants; The Capitol Companies,

Inc., a corporation, Joseph J. Freed & Associates, Inc., a

corporation and Midwest Concrete Products Co., a

corporation, Third-Party Defendants-Appellees).

No. 87-2886.

Appellate Court of Illinois,

First District, Third Division.

Dec. 7, 1988.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, Janet R. Davis and Bruce L. Carmen, of counsel), for defendant and third-party plaintiff-appellant.

Clausen Miller Gorman Caffrey & Witous, P.C., (James T. Ferrini, Stephen D. Marcus, Douglas J. Palandech and Edward M. Kay, of counsel), for third-party defendant-appellee Midwest Concrete Products Co.

Ronald M. DeHaan, E. William Maloney, Randolph E. Ruff of DeHaan & Richter P.C., Chicago, for third-party defendants-appellees Capitol Companies and Freed & Assoc.

Justice FREEMAN delivered the opinion of the court:

Defendant/third-party plaintiff, Samartano & Company (Samartano), appeals from the trial court's granting of the motions to dismiss of third-party defendants, Midwest Concrete Products Co. (Midwest), Capitol Companies, Inc. (Capitol), and Joseph J. Freed & Associates, Inc. (Freed) for Samartano's failure to file its third-party complaint within the time allowed for under the statute of limitations. On appeal Samartano asserts that the trial court erred in dismissing the third-party complaint by improperly relying on the limitations provision of section 13-214(a) of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 13-214(a)) and improperly finding that the discovery period under section 13-214 for the third-party action was triggered by the filing of the underlying complaint.

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates the following. Plaintiff in the underlying action, LaSalle National Bank (LaSalle), as trustee, filed its original complaint on January 17, 1983, naming Samartano and Edward M. Cohon & Associates (Cohon) as defendants. Samartano was served with summons on January 24, 1983. On February 23, 1983, Samartano filed its appearance. LaSalle filed a third amended complaint on March 26, 1985. LaSalle is the record title owner of the Norridge Commons Shopping Center. LaSalle alleges that in September 1976, Cohon agreed to provide services to LaSalle for the design and construction of an underground storm-water detention basin at the shopping center. Cohon, in turn, contracted with Samartano to provide structural engineering services for the design of the basin. LaSalle contracted with Mayfair Construction Company (Mayfair), a general contractor, for the construction of the detention basin. Mayfair entered into several subcontracts for the performance of the work.

On October 23, 1986, Samartano filed its third-party complaint seeking contribution from third-party defendants. The third-party complaint alleges that third-party defendant Midwest entered into a subcontract with Mayfair under which Midwest agreed to manufacture, fabricate, and install precast concrete roof slabs. Third-party defendant Capitol allegedly was involved in the coordination of design and construction of the water basin, and negligently performed those services. Further, Capitol allegedly made "certain representations and recommendations" that Samartano relied upon. The third-party complaint also alleges that Capitol was negligent in the providing of engineering services and review of the plans and specifications of the water basin. Third-party defendant Freed also allegedly was involved in the direction and coordination of the design and construction of the water basin, and allegedly negligently provided those services. The third-party complaint also alleges that Freed was negligent in its review of the engineering plans and specifications for the water basin.

On June 30, 1987, third-party defendants Capitol and Freed filed a motion to dismiss the third-party complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-619) for third-party plaintiff's failure to file the action within the applicable statute of limitations period (Ill.Rev.Stat.1983, ch. 110, par. 13-214(a)), and pursuant to the holding in Hartford Fire & Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill.App.3d 515, 110 Ill.Dec. 529, 511 N.E.2d 706. Midwest filed a similar motion to dismiss on July 2, 1987. After a hearing, the trial court entered its order on August 14, 1987, dismissing with prejudice the third-party complaint against Capitol, Freed, and Midwest.

On appeal Samartano asserts that the trial court erred in applying the limitations provisions contained in section 13-214 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 13-214) rather than the limitations period set forth in section 13-204 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 13-204). Section 13-204 provides:

"Contribution among tortfeasors. 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 towards discharge of his or her liability." (Ill.Rev.Stat.1987, ch. 110, par. 13-204.)

Section 13-214 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 2 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.

(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.

* * * "

Ill.Rev.Stat. 1983, ch. 110, par. 13-214.

Samartano contends that the trial court erred in relying on Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill.App.3d 515, 110 Ill.Dec. 529, 511 N.E.2d 706 in granting the motion to dismiss. In Hartford, the plaintiffs, as subrogees of a school district, filed suit in December 1981 for damages resulting from a fire in a school in January 1980. The named defendants included the architects, who allegedly were negligent in the design and construction of the school. The architects filed a third-party complaint against the mechanical and electrical engineers. The engineers moved to dismiss the third-party complaint on the ground that it was time-barred by section 13-214(b) of the Code (Ill.Rev.Stat, 1981, ch. 110, par. 13-214(b)). The architects, as third-party plaintiffs, asserted that section 13-214(b) did not apply to actions brought under the "Act in relation to contribution among joint tortfeasors" (the Contribution Act) (Ill.Rev.Stat.1987, ch. 70, par. 301 et seq.). Rather, only section 13-204 (Ill.Rev.Stat.1981, ch. 110, par. 13-204) applied, since it specifically governs actions for contribution.

The court in Hartford held that the language of section 13-214, in addition to the legislative history of the section, indicates legislative intent that section 13-214 govern all actions against persons involved in the construction-related activities described in the section. (Hartford, 158 Ill.App.3d at 518, 110 Ill.Dec. 529, 511 N.E.2d 706.) The legislative history indicates, among other things, that the purpose of section 13-214 is to protect persons involved in the design and construction of buildings from potentially unlimited liability. (Hartford, 158 Ill.App.3d at 519, 110 Ill.Dec. 529, 511 N.E.2d 706.) To exclude contribution actions from the purview of section 13-214 could in many instances thwart the purpose of the section. (Hartford, 158 Ill.App.3d at 519-520, 110 Ill.Dec. 529, 511 N.E.2d 706.) Further, section 13-214 does not contravene the policy underlying the Contribution Act. Hartford, 158 Ill.App.3d at 520, 110 Ill.Dec. 529, 511 N.E.2d706.

The court in Hartford held that since the services provided by the architects were construction-related activities as described in section 13-214, section 13-214 governed over section 13-204. (Hartford, 158 Ill.App.3d at 518, 110 Ill.Dec. 529, 511 N.E.2d 706.) The court also stated that the latest date on which the architects could be charged with discovery of the acts or omissions alleged in the action for contribution was the date on which the original action was filed by the plaintiffs. (Hartford, 158 Ill.App.3d at 520, 110 Ill.Dec. 529, 511 N.E.2d 706.) Since the action for contribution in that case was filed more than 14 years after completion of the construction project and almost 4 years after the original action was filed, the court affirmed the dismissal of the third-party complaint. Hartford, 158 Ill.App.3d at 521, 110 Ill.Dec. 529, 511 N.E.2d 706.

Samartano asserts that Hartford is inconsistent with prior Illinois decisions, including Laue v. Leifheit (1984), 105 Ill.2d 191, 85 Ill.Dec. 340, 473 N.E.2d 939; Stephens v. McBride (1983), 97 Ill.2d 515, 74 Ill.Dec. 24, 455 N.E.2d 54; and Monsen v. DeGroot (1985), 130 Ill.App.3d 735, 86 Ill.Dec. 199, 475 N.E.2d 5. Our review of the three cited...