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05/26/88 Continental Insurance v. Walsh Construction Company

May 26, 1988

CORPORATION, PLAINTIFF-APPELLANT

v.

WALSH CONSTRUCTION COMPANY OF ILLINOIS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

CONTINENTAL INSURANCE COMPANY, a/k/a The Continental

524 N.E.2d 1131, 171 Ill. App. 3d 135, 121 Ill. Dec. 83 1988.IL.836

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff Continental Insurance Company filed suit for damages caused to its building allegedly resulting from negligent services provided by defendants in the engineering and construction of an underground sewer system for the Metropolitan Sanitary District of Greater Chicago (the District) adjacent to plaintiff's property. The trial court found that plaintiff's complaint, filed almost five years after the damage to its property occurred, was barred by a two-year statute of limitations for actions "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. 1983, ch. 110, par. 13-214(a).

Plaintiff appeals, arguing that its cause of action is governed by the five-year limitation to recover damages for an injury to property (Ill. Rev. Stat. 1983, ch. 110, par. 13-205) rather than the two-year limitation period of section 13-214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-214(a)). Plaintiff argues that since it filed suit within the five-year period, the action was timely filed and should not have been dismissed. Plaintiff urges that the two-year limitation in section 13-214(a) is not intended to be applicable to suits for damage to property of adjacent landowners and is inapplicable to this case because the work performed on the District's underground sewer system did not amount to an "improvement to real property." Plaintiff also asserts that the two-year statute of limitations is invalid because it violates the Illinois constitutional guarantee of equal protection and the right to a legal remedy for an injury to property.

We hold that section 13 -- 214(a) governs plaintiff's cause of action and suffers no constitutional infirmity and therefore affirm the trial court's finding that the action is barred by the two-year statute of limitations.

Background

In 1979, the District undertook to build the "Tunnel and Reservoir Plan, Main Stream Tunnel System" (the Deep Tunnel project) to catch combined-sewer overflows which had been running into rivers and flooding homes in the Chicago metropolitan area. Defendants provided engineering and construction services for certain parts of the Deep Tunnel project. During excavation and construction, the electrical vault on plaintiff's property shifted, pulled away from plaintiff's building, and caused plaintiff to suffer an electrical power loss for 17 days beginning on or about November 30, 1979.

Almost five years later, on November 20, 1984, plaintiff filed suit alleging, inter alia, that the defendants' negligence in providing construction and engineering services for the Deep Tunnel project caused the plaintiff's power loss and resulting interruption of plaintiff's business. Certain defendants, appellees here, motioned for summary judgment (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005) on the ground that plaintiff's suit was barred by the two-year limitation period for actions "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. 1983, ch. 110, par. 13-214(a).) Another defendant, also appellee here, relied upon this statute of limitations defense as ground to dismiss the complaint. Ill. Rev. Stat. 1983, ch. 110, par. 2-619.

Following briefing and argument, the trial court allowed the defendants' motions and found no just reason to delay enforcement of or appeal from its ruling. It later denied ...


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