Tolan & Son, Inc. v. KLLM Architects, Inc.

719 N.E.2d 288, 308 Ill. App. 3d 18, 241 Ill. Dec. 427
CourtAppellate Court of Illinois
DecidedSeptember 30, 1999
Docket1-98-2581
StatusPublished
Cited by49 cases

This text of 719 N.E.2d 288 (Tolan & Son, Inc. v. KLLM Architects, Inc.) 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
Tolan & Son, Inc. v. KLLM Architects, Inc., 719 N.E.2d 288, 308 Ill. App. 3d 18, 241 Ill. Dec. 427 (Ill. Ct. App. 1999).

Opinion

JUSTICE RAKOWSKI

delivered the opinion of the court:

In Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982), the Illinois Supreme Court held that a plaintiff cannot recover in tort for solely economic loss, loss that is not accompanied by either personal injury or property damage. This rule is known as the economic loss doctrine. The supreme court then discussed two exceptions to the rule: where defendant commits fraud or intentional misrepresentation and where defendant, who is in the business of supplying information for the guidance of others, makes a negligent misrepresentation. In 2314 Lincoln Park West Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302 (1990), and Fireman’s Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160 (1997), the supreme court held that because the focus of an engineer’s or architect’s work is usually tangible — a building, a structure, or a product — it is not in the business of providing information. The court held that any information provided is merely incidental to the finished product. Thus, the negligent misrepresentation exception to the economic loss doctrine does not generally apply to engineers and architects. In this opinion, we consider whether the rule concerning architects and engineers is absolute or whether there are situations, such as when an architect or engineer is hired solely to provide information rather than construct a building or structure, where the negligent misrepresentation exception may apply. Because we conclude that neither 2314 Lincoln Park West nor Fireman’s Fund Insurance sets forth an absolute bar, there may well be situations where a plaintiff may maintain a cause of action against an architect or engineer based on the negligent misrepresentation exception to the Moorman doctrine. However, based on the facts present in the instant case, we find that the exception is not applicable to KLLM Architects, Inc., and Louis K. Walter, Jr., because they were not retained to provide information but, rather were retained to build a structure. With regard to defendant Lawrence Reiss, we remand to the circuit court to further determine his role in the construction project.

BACKGROUND

Plaintiff, Tolan & Son, Inc. (Tolan), is a residential contractor which developed and constructed a 13-building townhome complex called Meadow Mews in Tinley Park, Illinois. In October of 1989, Tolan entered into an oral agreement with KLLM Architects, Inc. (KLLM), for the preparation of plans and designs for the complex. KLLM is an architectural firm in the business of providing plans and specifications for residential and commercial developments. At the same time, Tolan entered into an oral agreement with Total Concept Land Design (Total Concept). Total Concept was responsible for land-planning services and preparing proposed layout designs, site plans, and landscaping plans. These designs were purportedly submitted to Intercon Engineering Corporation (Intercon), a civil engineer, which had provided Tolan with engineering drawings of the property. Inter-con was responsible for setting the final grades for the site to accommodate KLLM’s architectural designs.

In April of 1990, Tolan entered into an oral agreement with Terra Testing, Inc. (Terra), for soil engineering services, including an analysis of soil conditions for the purpose of confirming Total Concept’s proposed placement of each building. In May, a Terra representative indicated that the proposed sites for several of the buildings were over peat, which was highly compressible and not suitable for supporting the buildings’ foundations. Despite this information, the site plans were not revised and construction began. During July Tolan asked KLLM to recommend a geotechnical engineer to review excavation at one site. KLLM recommended Louis K. Walter, Jr. (Walter), whose business involved soil engineering and subsurface investigation services.

In the spring of 1991, Tolan, KLLM, and Total Concept discussed the idea of relocating buildings 10, 11, and 12 farther south. KLLM and Total Concept were aware that the new locations were over peat but redesigned the site plans notwithstanding. Neither KLLM nor Total Concept advised Tolan that relocation would create problems. Around the same time, Intercon had numerous contacts with KLLM and Total Concept concerning the movement of the buildings, indicating that relocation was not advisable because of the peat below. Apparently these concerns went unheeded and the plans were not revised to accommodate or eliminate them.

In July of 1991, Walter examined the soil and fill at building 9. He made certain recommendations pertaining to the fill and grade to be used in setting the foundations and the necessary support system. It was at this time that Walter first mentioned the use of caissons. KLLM revised the plans according to Walter’s recommendations but did not incorporate the caissons. Walter examined the soil beneath buildings 10, 11, and 12 in March of 1992, making the same recommendations he made with respect to building 9.

During construction in the spring of 1992, Tolan discovered cracks in some of the foundations and contacted KLLM. In May, an employee from KLLM visited building 10. Following this visit, KLLM forwarded a letter to Tolan stating that a structural engineer on its behalf, Lawrence Reiss (Reiss), recommended additional reinforcement bars in the foundation walls of buildings 11 and 12. In June KLLM, Reiss, and Walter inspected building 11 to observe cracks in its foundation. At this time, according to Tolan’s complaint, all three defendants stated the cracks were due to concrete being poured too wet and high stress areas in the intersections of the foundation walls. According to them, the cracks did not affect the structural integrity of the building. In July, Walter conducted soil boring tests at the proposed site of building 12 for the purpose of making recommendations regarding the design and construction of its foundation. Although Walter recommended the use of caissons, he did state that, alternatively, building 12 could be completed in the same manner as buildings 9, 10, and 11. The foundation in building 12 was not altered and caissons were not added. In December, Walter inspected cracks in building 12. He stated that some of the cracks were due to high stress areas and were typical. Other cracks were due to normal shrinkage. He stated these cracks did not impair the structural integrity. In March of 1993, Walter again inspected building 11. He stated that the cracks were due to insufficient frost protection.

According to Tolan, at no time did KLLM, Walter, or Reiss advise it that any of the cracks were the result of instability in the soil structure, although each of them knew of the peat underneath.

In April of 1993, Tolan contacted Dave Pate & Sons Construction, a concrete repair company, to evaluate the cracks. According to Pate, the cracks were the result of the inadequate bearing capacity of the soil below the foundations. Frank A. Guisinder, Jr., a structural engineer, confirmed this causation opinion, opining that the cracks were due to the instability of the supporting soil stratum. Thereafter, Tolan remediated the property at a cost in excess of $725,000.

Tolan then filed the instant suit. Counts I though IV are breach of contract claims against KLLM, Total Concept, Walter, and Terra Testing, respectively. These counts are not before this court.

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Bluebook (online)
719 N.E.2d 288, 308 Ill. App. 3d 18, 241 Ill. Dec. 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolan-son-inc-v-kllm-architects-inc-illappct-1999.