Billman v. Crown-Trygg Corp.

563 N.E.2d 903, 205 Ill. App. 3d 916, 150 Ill. Dec. 776, 1990 Ill. App. LEXIS 1670
CourtAppellate Court of Illinois
DecidedOctober 29, 1990
Docket1-88-2215
StatusPublished
Cited by22 cases

This text of 563 N.E.2d 903 (Billman v. Crown-Trygg Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billman v. Crown-Trygg Corp., 563 N.E.2d 903, 205 Ill. App. 3d 916, 150 Ill. Dec. 776, 1990 Ill. App. LEXIS 1670 (Ill. Ct. App. 1990).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Pauline Billman, individually, Estel LeRoy Billman, individually, and Pauline Billman and Estel LeRoy Billman, as co-guardians of the estate and person of Thomas Austin McDonald, an incompetent, appeal the dismissal of counts VII and XV of their first amended complaint which alleged that defendants, Delta Construction, Inc., Gallagher Asphalt Corp., Frenzel Construction Co., Trygg Paving Co., Inc., Crown-Trygg Corp., Maintenance Coatings Co., Virgil Cook & Sons, Inc., Joliet Bridge & Construction Co., F.K. Ketler Co., Albin Carlson & Co., A.C. Pavement Striping Co., and Davis Concrete Construction Co., Inc., had been negligent in the reconstruction and modification of the intersection at Joliet Road and Route 53 in Romeoville, Illinois (the intersection). The trial court dismissed the counts on the ground that they were time barred by the statute of repose which governs actions brought against persons engaged in the design, planning, supervision, observation or management of construction or construction of an improvement to real property. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(b).) On appeal, plaintiffs contend that: (1) defendants’ construction activities at the intersection did not constitute an “improvement to real property” as contemplated by section 13 — 214(b) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(b)); (2) section 13 — 214(b) is limited in its application to buildings and their appurtenances; (3) application of section 13 — 214(b) to the facts at bar abolished plaintiffs’ remedy without affording them a reasonable time to bring suit; and (4) application of section 13 — 214(b) to include road design and construction violates the equal protection clause of the Illinois and the United States Constitutions. For the following reasons, the judgment of the trial court is affirmed.

The circumstances giving rise to this appeal are as follows. During the period from 1965 to 1968, defendants Crown-Trygg Corp. (Crown-Trygg), Virgil Cook & Sons, Inc. (Cook), Albin Carlson & Co. (Carlson), F.K. Ketler Co. (Ketler), and Joliet Bridge & Construction Co. (Joliet Bridge) performed certain construction work at the intersection. Subsequently, on August 22, 1984, plaintiff McDonald, while stopped in his automobile at a traffic signal in the northbound left-turn lane at the intersection, was struck by an automobile traveling southbound which had crossed over the median strip. The driver of the southbound car was allegedly intoxicated. McDonald suffered serious head injuries which rendered him comatose and resulted in his being adjudicated incompetent. On August 22, 1986, plaintiffs filed suit against defendants, alleging negligence. Thereafter, plaintiffs filed a first amended complaint, making changes not relevant to this appeal. In response, defendants Crown-Trygg, Cook, Carlson, Ketler and Joliet Bridge moved to dismiss counts VII and XV pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), on the ground that section 13 — 214(b) of the Code barred any action against defendants. The trial court granted the motion, but did not state in the order that the decision was final and appealable. As a result, plaintiffs were allowed additional time within which to file a motion for reconsideration. During this time, plaintiffs reached a settlement with Ketler and Joliet Bridge and those parties were dismissed from the action. Following a hearing on plaintiffs’ motion for reconsideration, the trial court entered a final and appealable order denying the motion. Plaintiffs’ timely appeal followed.

Initially, plaintiffs contend that defendants’ construction activities at the intersection did not constitute an “improvement to real property” as contemplated by section 13 — 214(b) of the Code, which provides, in pertinent part:

“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 10 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action as provided in subsection (a) of this Section.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(b).

In reliance on Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, plaintiffs argue that the work performed by defendants on the intersection was mere repair and replacement and not an improvement to real property. In Calumet, plaintiff engaged defendant to design, install and sell a piping connection between the municipal water supply pipe and the water supply pipe of plaintiff’s main clubhouse. The piping connection was installed during the period of October 30, 1980, through November 3, 1980. On June 21, 1981, the piping connection allegedly became separated and thousands of gallons of water flooded the basement and part of the first floor of plaintiff’s clubhouse.

On September 29, 1983, plaintiff filed a complaint alleging that defendant had been negligent. In response, defendant moved to dismiss the complaint based on the two-year limitations period of section 13 — 214(a). Plaintiff then filed an amended complaint, after which the trial court dismissed the action with prejudice as being time barred by section 13 — 214(a).

On appeal, plaintiff argued that the five-year limitations period of section 13 — 205 applied rather than the two-year limitations period of section 13 — 214(a). As does section 13 — 214(b), at issue in the present case, section 13 — 214(a) applies to:

“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 ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(a).)

At issue in Calumet was whether the piping connection was an “improvement to real property” as contemplated in section 13 — 214(a).

Looking to the actual language of section 13 — 214(a) and the commonly accepted meaning of that language, the Calumet court found that “improvement” means “an addition to real property amounting to more than a mere repair or replacement, and which substantially enhances the value of the property *** [including] substantial additions or changes.” (Calumet, 136 Ill. App. 3d at 613.) The court noted that while construction of a water main had been found to be an improvement, there was no case law characterizing a piping connection as an improvement. Having arrived at a definition for the phrase “improvement to real property,” the court reviewed the record and determined that, although the piping connection may have enhanced the value of the property, there was an insufficient basis in the record to determine whether the piping connection was a substantial new addition or a repair or replacement.

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Bluebook (online)
563 N.E.2d 903, 205 Ill. App. 3d 916, 150 Ill. Dec. 776, 1990 Ill. App. LEXIS 1670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billman-v-crown-trygg-corp-illappct-1990.