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12/09/88 Commonwealth Edison v. Walsh Construction Company

December 9, 1988

COMMONWEALTH EDISON COMPANY, PLAINTIFF-APPELLANT

v.

WALSH CONSTRUCTION COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

532 N.E.2d 346, 177 Ill. App. 3d 373, 126 Ill. Dec. 661 1988.IL.1782

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

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) *fn1 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:

"[Actions] 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, ...


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