Commonwealth Edison Co. v. Walsh Construction Co.

532 N.E.2d 346, 177 Ill. App. 3d 373, 126 Ill. Dec. 661, 1988 Ill. App. LEXIS 1709
CourtAppellate Court of Illinois
DecidedDecember 9, 1988
Docket86-1396
StatusPublished
Cited by18 cases

This text of 532 N.E.2d 346 (Commonwealth Edison Co. v. Walsh Construction Co.) 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
Commonwealth Edison Co. v. Walsh Construction Co., 532 N.E.2d 346, 177 Ill. App. 3d 373, 126 Ill. Dec. 661, 1988 Ill. App. LEXIS 1709 (Ill. Ct. App. 1988).

Opinion

JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff Commonwealth Edison Company (Edison) brought an action to recover for damages done to plaintiff’s property by the defendant Walsh Construction Company (Walsh) when Walsh excavated and tunnelled a portion of the Deep Tunnel Project beneath plaintiff’s transformer vault. Edison’s complaint was filed almost five years after the damage had occurred, and the trial court concluded that the action was barred by the statute of limitations and granted defendant’s motion to dismiss plaintiff’s complaint. Edison appeals.

Plaintiff, Edison, a public utility, was engaged in the business of supplying electricity to the general public in the area of Quincy Street and Wacker Drive in Chicago at which Edison owned a transformer vault used to transmit electricity. The defendant, Walsh, contracted with the Metropolitan Sanitary District of Greater Chicago (Metropolitan Sanitary District) to excavate a segment of the “Tunnel and Reservoir Plan, Main Stream Tunnel System,” commonly known as the Deep Tunnel Project.

On November 29, 1979, while Walsh was performing excavation work, Walsh excavated the earth which was underneath and the under support of plaintiff’s transformer vault and thereby caused damage to plaintiff’s transformer vault and thereby caused damage to plaintiff’s electrical equipment and transformer vault structure, which in turn caused an interruption of electrical services to an adjoining building. On January 1, 1980, Edison wrote a letter to the defendant, Walsh, about the damage Walsh caused on November 29, 1979, during Walsh’s excavation on the Deep Tunnel Project. In the letter Edison notified the defendant, Walsh, of “our intent to recover damages.” In the letter, Edison also estimated the “cost to repair is in excess of $175,000.00.”

On October 26, 1984, Edison filed a complaint against Walsh alleging that the damage to Edison’s transformer vault and electrical equipment was caused by Walsh’s excavation of the Deep Tunnel Project. Defendant Walsh filed a motion to dismiss contending that the cause of action alleged in plaintiff’s complaint was barred by the two-year statute of limitations of section 13—214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13—214(a)), which provides:

“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 two 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.”

On May 7, 1986, the trial court held that Edison’s complaint was barred by the two-year statute of limitations of section 13—214(a) 1 and entered an order dismissing plaintiff’s complaint with prejudice.

On appeal, Edison contends that the excavation and construction undertaken by the defendant did not involve an improvement to real property within the meaning of section 13—214(a) of the Code of Civil Procedure. Edison urges that the Deep Tunnel Project eventually would become at most an extension of the city’s sewage distribution system, that section 13—214(a) of the Code of Civil Procedure was not intended to apply to adjacent landowners for damage to property, and therefore the five-year statute of limitations of section 13—205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13—205) applies. Section 13—205 of the Code of Civil Procedure provides:

“[Ajctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal *** shall be commenced within five years next after the cause of action accrued.”

Edison argues that this court should exclude the excavation work of the Deep Tunnel Project from the two-year limitations period of section 13—214(a), contending that the Deep Tunnel Project is not an “improvement to real property” within the meaning of that section. Illinois law, however, is to the contrary. In Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, this court considered and rejected the precise contention raised by plaintiff herein. In Continental, the defendant, Walsh (the same defendant in the case at bar), did excavation and construction on the same Deep Tunnel Project, as involved herein. The earth shifted and pulled away Commonwealth Edison’s electrical vault located on the property of Continental Insurance Company, which caused Continental to suffer an electrical power loss for 17 days. About five years later, as in the instant case, Continental filed suit alleging that defendant Walsh’s excavation and construction on the Deep Tunnel Project caused plaintiff’s, Continental’s, power loss and the interruption and damages of plaintiff’s business. Just as in the case at bar, defendant Walsh, in Continental, filed a motion to dismiss plaintiff’s complaint on the ground that Continental’s cause of action was barred by the two-year statute of limitations of section 13—214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13—214(a)). The trial court granted the dismissal motion.

On appeal, Continental’s contentions were the same as are Edison’s contentions in the case at bar. Continental argued that its cause of action was governed by the five-year statute of limitations of section 13—205, to recover damages for an injury to property (Ill. Rev. Stat. 1983, ch. 110, par. 13—205), rather than the two-year statute of limitations of section 13—214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—214(a)). Continental argued, as does Edison in the case at bar, that since its complaint was filed within the five-year statute of limitations, its suit was timely filed and should not have been dismissed. Continental further argued, as does the plaintiff here, that the two-year statute of limitations of section 13—214(a) did not apply to a cause of action for damages to property of adjacent landowners because the Deep Tunnel Project was not an improvement to real property. However, this court conversely stated:

“We do not agree with plaintiff’s argument that because it is the owner of property adjacent to the area of construction, section 13—214(a) is inapplicable. Initially, we note that section 13—205, which plaintiff asserts governs its cause of action, has been held inapplicable to architects, engineers, and contractors after passage of section 13—214. [Citation.] Furthermore, the clear language of section 13—214(a) militates against plaintiff’s applicability argument. Section 13—214(a) unambiguously states that it governs actions ‘based upon tort, contract or otherwise against any person for an act or omission by such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property.’ (Ill. Rev. Stat. 1983, ch. 110, par. 13—214(a).) ***
There is nothing in section 13—214 to indicate that the General Assembly intended to create an exception for injured parties who own property adjacent to that for which construction or engineering services have been provided.

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Bluebook (online)
532 N.E.2d 346, 177 Ill. App. 3d 373, 126 Ill. Dec. 661, 1988 Ill. App. LEXIS 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-edison-co-v-walsh-construction-co-illappct-1988.