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West Am. Ins. Co. v. Sal E. Lobianco & Son

OPINION FILED NOVEMBER 30, 1977.

WEST AMERICAN INSURANCE COMPANY ET AL.

v.

SAL E. LOBIANCO & SON COMPANY, INC., ET AL. — (JAMES PATTERMAN, APPELLANT,

v.

AETNA LIFE & CASUALTY COMPANY, APPELLEE.)



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. John A. Krause, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Plaintiffs, West American Insurance Company and Aetna Life and Casualty Company, as subrogees of their insureds, William P. and Mary W. Snellbaker, whose home had been burned, brought an action against Sal E. Lobianco & Son Company, Inc., a corporation and general contractor, and James Patterman, a masonry contractor. They alleged the fire resulted from negligence in the construction of the Snellbaker home.

Patterman's motion to dismiss, predicated on the bar of the statute of limitations requiring suit for injury to property to "be commenced within 5 years next after the cause of action accrued" (Ill. Rev. Stat. 1973, ch. 83, par. 16), was granted. The dismissal order was made appealable pursuant to Rule 304(a) (58 Ill.2d R. 304(a)), and Aetna appealed. The appellate court reversed the summary disposition and remanded the cause for a trial on the merits. (43 Ill. App.3d 765.) We granted Patterman leave to appeal under our Rule 315 (58 Ill.2d R. 315).

On January 28, 1974, this complaint was filed. It alleged that the home was erected "prior to January 4, 1972," by Sal E. Lobianco & Son Company, Inc., as the general contractor, and by the defendant Patterman, as the masonry contractor.

In 1971 Mr. and Mrs. Snellbaker purchased the home. According to the complaint, on January 4, 1972, the Snellbakers started a fire in the fireplace, and the wall behind it broke into flames. As a result, the Snellbakers' home was demolished. Patterman, according to his affidavit in support of the motion to dismiss, worked on the fireplace in 1966 and 1967 but not beyond.

The issue before us is when did the cause of action accrue. If it was in 1967 when the defendant did the work, the right of action is barred by the statute. On the other hand, if the cause of action accrued when the fire occurred, the 1974 action was timely.

In dealing with a question involving a period of limitations, we should be aware of the attitude of this court towards statutes of limitation. In Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill.2d 273, it was observed:

"Statutes of limitation, like other statutes, must be construed in the light of their objectives. The basic policy of such statutes is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible. That purpose has been fully served here. As observed by Mr. Justice Holmes in New York Central Railroad v. Kinney, 260 U.S. 340, 342, `Of course an argument can by made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.'" 4 Ill.2d 273, 289-90.

So also in Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 132, it was said that the purposes of limitation periods are twofold: to require the bringing of actions within a reasonable time so that available evidence will not be impaired or lost, and, secondly, to discourage delay in bringing claims.

This is a tort action. The amended complaint alleges the duty of the particular defendant to exercise due care in the performance of his work, specific negligence and the fire and damage resulting therefrom, as well as due care on the part of the Snellbakers, whose cause of action plaintiffs, as subrogees, assert. It seems well established that a cause of action based on tort accrues only when all elements are present — duty, breach and resulting injury or damage. (McClure v. Hoopeston Gas & Electric Co. (1922), 303 Ill. 89, 96.) But "[t]here can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose." Schmidt v. Merchants Despatch Transportation Co. (1936), 270 N.Y. 287, 300, 200 N.E. 824, 827.

The rule long established in this jurisdiction in a personal injury action arising out of negligence is that the cause of action accrues at the time of the injury. (Leroy v. City of Springfield (1876), 81 Ill. 114, 115-16.) So also in Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 431-32, involving a strict liability action for a defective product, the same principle was applicable to a product, although it had left the manufacturer's possession long prior to the expiration of the limitation period.

In the case of the defective product negligently made, as distinguished from strict liability for the unreasonably dangerous product, there is no accrual of a right of action when the product is negligently made. The cause of action does not come into existence until someone has been injured or damaged. Sides v. Richard Machine Works, Inc. (4th Cir. 1969), 406 F.2d 445, 446; Rosenau v. City of New Brunswick (1968), 51 N.J. 130, 137, 238 A.2d 169, 172-73; Foley v. Pittsburgh - Des Moines Co. (1949), 363 Pa. 1, 38, 68 A.2d 517, 535; see Decaire v. Public Service Co. (1971), 173 Colo. 402, 407, 479 P.2d 964, 966; 3A L. Frumer and M. Friedman, Products Liability sec. 39.01(2) (1977).

In an action for damage to property resulting from the subsidence of land due to inadequate support after mining, the limitation period begins from the time of the subsidence, not from the time of the mining. There is no injury until the land has subsided. Savant v. Superior Coal Co. (1955), 5 Ill. App.2d 109, 114; Wanless v. Peabody Coal Co. (1938), 294 Ill. App. 401, 406; Treece v. Southern Gem Coal Corp. (1923), 245 Ill. App. 113, 116-119, citing the British case of Backhouse v. Bonomi, 11 Eng. Rep. 825 (1861).

Other jurisdictions have reached the question posed here and have concluded that the cause of action for negligent construction or installation accrues at the time of injury. Welding Products v. S.D. Mullins Co. (1972), 127 Ga. App. 474, 478, 193 S.E.2d 881, 884 (negligent construction of a roof — cause of action arose at time of collapse); Hunt v. Star Photo Finishing Co. (1967), 115 Ga. App. 1, 6, 153 S.E.2d 602, 605 (negligent construction of a roof which collapsed — cause of action arose at time of collapse); White v. Schnoebelen ...


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