Morietta v. REESE CONST. CO.

• Decision Date: 25 March 2004
• Docket Number: No. 5-03-0215.,5-03-0215.
• Citation: 808 N.E.2d 1046,347 Ill. App.3d 1077,283 Ill.Dec. 758
• Parties: Larry MORIETTA, Plaintiff-Appellant, v. REESE CONSTRUCTION COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

808 N.E.2d 1046

347 Ill. App.3d 1077

283 Ill.Dec. 758

Larry MORIETTA, Plaintiff-Appellant, v. REESE CONSTRUCTION COMPANY, Defendant-Appellee.

No. 5-03-0215.

Appellate Court of Illinois, Fifth District.

Filed March 25, 2004.

Motion to Publish Granted April 22, 2004.

Opinion Filed April 22, 2004.

Patricia A. Zimmer, George Ripplinger and Associates, Belleville, for Appellant.

William J. Knapp, Elizabeth A. Bradley, Knapp, Ohl & Green, Glen Carbon, for Appellee.

Justice HOPKINS delivered the opinion of the court:

The plaintiff, Larry Morietta, appeals from the trial court's order granting a summary judgment in favor of the defendant, Reese Construction Company. On appeal, the plaintiff contends that the trial court erred in determining (1) that the statute-of-limitations provision of section 13-214(a) of the Code of Civil Procedure (735 ILCS 5/13-214(a) (West 2002)) was inapplicable and (2) that the discovery rule was inapplicable. We affirm.

FACTS

On June 3, 1998, the plaintiff was driving southbound on Illinois: Route 4. At about 0.4 mile south of mile marker No. 6, the plaintiff's vehicle hydroplaned on standing water on the road, which caused him to lose control, leave the road, enter a ditch, and flip his car over onto the driver's side. The plaintiff suffered a back injury as a result of the accident.

On June 4, 2001, three years after the accident, the plaintiff filed his negligence complaint against the defendant. The plaintiff alleged that the defendant had done negligent work on Illinois Route 4 in that the defendant "failed to properly design," "failed to properly specify the manner and method of construction," "failed to supervise the repaving," "failed to properly compact the new surface," and "failed to build a proper crown" during the construction of the road so that water did not drain from the surface during a rain. The plaintiff also alleged that he did not learn until May 2001 that the accident was the result of negligence. The defendant's answer included several affirmative defenses, inter alia, that the plaintiff's cause of action was barred either by the statute of limitations, because he filed his complaint more than two years after his cause of action had accrued, or by the contractor-specification defense.

According to the pleadings, attachments, and memorandums of law, the defendant successfully bid on a road project let by the Illinois Department of Transportation (IDOT) in 1994, which consisted of "9.3 miles of pavement patching, bituminous surface removal and 26 ft. and variable width bituminous concrete resurfacing on Illinois Route 4 from south of FAI Route 70 to Randle Street in Lebanon." The project encompassed the area where the plaintiff's accident occurred. The road work was done in accordance with the plans and specifications provided by IDOT. Further, resident engineers from IDOT were present daily during the work project to ensure that the defendant followed IDOT's plans and specifications. The work project did not involve the construction of a new road or the widening of the existing road but only encompassed the removal and repavement of the existing road. On January 3, 1995, IDOT sent the defendant a letter of final acceptance indicating that a final inspection had been done and that the work on the project was complete and in compliance with the applicable plans and specifications.

The defendant filed a motion for a summary judgment, claiming that the plaintiff's complaint was barred by the two-year statute of limitations of section 13-202 of the Code of Civil Procedure (735 ILCS 5/13-202 (West 2002)) and that the complaint was also barred by the contractorspecification defense, i.e., the defendant cannot be liable because the work on Illinois Route 4 had been done in accordance with IDOT's plans and specifications. In response, the plaintiff argued that his action was not time-barred because it had been filed within the four-year statute of limitations of section 13-214(a) and, alternatively, that the time for bringing the plaintiff's cause of action did not commence until he discovered that his injury had been caused by negligence (the discovery rule). The plaintiff also asked the court to continue any decision concerning the contractor-specification defense until he received all the discovery materials from IDOT.

On March 10, 2002, the court granted the defendant's motion for a summary judgment, finding that section 13-214 does not apply to the plaintiff's cause of action because the defendant's work was not an improvement to real property and that the "discovery rule" did not apply because the plaintiff "knew at the time of the accident on June 3, 1998[,] that his accident was caused by accumulated water and was therefore on notice to investigate whether the accumulation was caused by negligence." The plaintiff filed his timely notice of appeal.

ANALYSIS

1. Standard of Review

A summary judgment is a drastic means of disposing of litigation and is only to be granted when pleadings, depositions, admissions on file, and affidavits, if any, establish that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992); Jinkins v. Lee, 337 Ill.App.3d 403, 271 Ill.Dec. 720, 785 N.E.2d 914 (2003), aff'd, 209 Ill.2d 320, 282 Ill.Dec. 787, 807 N.E.2d 411 (2004). The review of the grant of a summary judgment is de novo. Outboard Marine Corp., 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204. In reviewing a summary judgment, a court construes evidentiary material strictly against the moving party and in the light most favorable to the nonmoving party. Jinkins, 337 Ill. App.3d at 409, 271 Ill.Dec. 720, 785 N.E.2d 914. A genuine issue of material fact exists where there is a dispute on a material fact or where the facts are undisputed but reasonable minds might differ in drawing inferences from the facts. Jinkins, 337 Ill.App.3d at 409, 271 Ill.Dec. 720, 785 N.E .2d 914. If facts are not disputed and the issue is one of statutory interpretation, the issue is reviewed as a matter of law. Jacobson v. General Finance Corp., 227 Ill.App.3d 1089, 170 Ill.Dec. 441, 592 N.E.2d 1121 (1992).

2. Statute of Limitations

The plaintiff argues that the trial court erred in determining that the construction statute of limitations of section 13-214(a) was inapplicable and that the general statute of limitations of section 13-202 applied (735 ILCS 5/13-214(a), 13-202 (West 2002)). The plaintiff claims that the fouryear statute of limitations applies because the defendant's removal and repaving of Illinois Route 4 under the IDOT contract meets all the criteria for an improvement to real estate.

Section 13-214(a) applies to any 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." 735 ILCS 5/13-214(a) (West 2002). Section 13-214 applies to all parties engaged in construction activities. Wright v. Board of Education of the City of Chicago, 335 Ill.App.3d 948, 269 Ill.Dec. 589, 781 N.E.2d 386 (2002). If the special statute of limitations of section 13-214(a) does not apply to the plaintiff's case, then the general statute of limitations of section 13-202 of the Code of Civil Procedure applies. 735 ILCS 5/13-202 (West 2002); Hernon v. E.W. Corrigan Construction Co., 149 Ill.2d 190, 172 Ill.Dec. 200, 595 N.E.2d 561 (1992).

In considering the application of section 13-214(a), "[t]he first step is to determine whether the item at issue is an improvement to real property." Wright, 335 Ill.App.3d at 955,269 Ill.Dec. 589,781 N.E.2d 386. Cases defining an improvement to real property have generally concerned section 13-214(b) of the Code of Civil Procedure (735 ILCS 5/13-214(b) (West 2002)); however, because of the identical language in sections 13-214(a) and 13-214(b), the cases concerning section 13-214(b) are pertinent to this issue. Hernon, 149 Ill.2d at 196-97,172 Ill.Dec. 200,595 N.E.2d 561. Whether an item is an improvement to real property is a question of law. St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill.2d 1,178 Ill.Dec. 761, 605 N.E.2d 555 (1992). The relevant criteria for determining whether an item is an improvement to real property is "whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced. [Citations.]" St. Louis, 153 Ill.2d at 4-5, 178 Ill.Dec. 761, 605 N.E.2d 555. However, an improvement is more than mere repair or replacement. Adcock v. Montgomery Elevator Co., 274 Ill. App.3d 519, 211 Ill.Dec. 169,.654 N.E.2d 631 (1995).

Here, the defendant's work on the road was not an improvement to real property as defined by the supreme court. The evidence presented in the motion for a summary judgment established that the defendant removed and replaced an existing road. It did not build a new road or even widen the existing road. Both of the IDOT resident engineers testified that repaving the road involved using the same depth of material as the existing road and following the slope of the existing road. The project also involved patching the pavement. This work neither improved the value of the property nor enhanced the use of the property. Thus, because the defendant's work on the road was merely repair and replacement and not an improvement to real property, the specific statute of limitations of section 13-214(a) does not apply.

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