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12/01/89 Elsa Benson, Inc., v. Kalman Floor Company

December 1, 1989




Before beginning a Discussion of the sufficiency of the evidence, we wish to observe that the plaintiff's briefs have been so heavily involved in the extraneous question of the Playskool opinion that we have had to search the record ourselves for an adequate understanding of the facts. Those facts are as follows:


548 N.E.2d 485, 191 Ill. App. 3d 1016, 139 Ill. Dec. 100 1989.IL.1858

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.


PRESIDING JUSTICE EGAN delivered the opinion of the court. McNAMARA, J., and LaPORTA,* J., concur.


The plaintiff, Elsa Benson, Inc. (Benson), a general contractor, brought this action against the defendant, Kalman Floor Company, Inc. (Kalman), a subcontractor, to recover damages caused by the defendant's allegedly defective work on a warehouse and manufacturing facility in Chicago, Illinois. The trial Judge granted the defendant's motion for summary judgment on the ground that the complaint had not been filed within the statutory limitation period. (Ill. Rev. Stat. 1985, ch. 110, par. 13-214.) The Judge also ruled in favor of the defendant on its motion for judgment on the pleadings, although the Judge characterized the motion as one brought under section 2-619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2-619.) The plaintiff contends that the court erred in granting summary judgment because whether the limitation period had expired was a question of fact; that in granting summary judgment the court improperly considered the "facts" as recited in an appellate court opinion and in transcripts from the trial upon which the appellate court opinion was based; and that the court erred in granting judgment on the pleadings.

In 1972, Playskool, Inc. (Playskool), the owner of a warehouse facility located at 4501 West Augusta in Chicago, entered into a contract with Benson whereby Benson agreed to act as general contractor and provide design and construction services with respect to an addition to the existing warehouse.

Benson entered into a contract with Concrete Steel and Timber Erection Company under which CST agreed to design, furnish and erect all precast concrete components necessary for the construction of the second floor of the warehouse facility. CST, in turn, entered into contracts with two subcontractors to design and fabricate the precast concrete components of the second-floor system, i.e., the columns, ledger beams and double-tee panels. Midwest Concrete Products (Midwest) agreed to design and fabricate the columns and ledger beams, and Blakeslee-Midwest Prestress Concrete Company (Blakeslee) agreed to design and fabricate the double-tee panels. The proposed placement of the columns, the ledger beams and the double-tee panels is shown in a schematic drawing attached to this opinion as Appendix I.

Playskool instructed Benson to enter into a subcontract with Kalman, because Playskool wanted a special Kalman MONOROCK floor installed. Pursuant to Playskool's direction, Benson and Kalman entered into a contract on March 5, 1973, for the installation of a Kalman MONOROCK floor which was to be placed over a precast concrete deck on the second floor. The contract required that the MONOROCK floor be bonded to the precast concrete deck and that welded wire mesh reinforcement be used.

After the facility was completed in December 1973, various problems began to surface. In 1974 cracks began to develop in the second floor over the joints of the double-tee panels; and Kalman was contacted to repair the cracks.

Apparently the cracks were repaired, but the problems did not end. In February 1976 Playskool informed Benson that a piece of concrete had broken off the ledge of the beam where a double-tee panel was resting, a phenomenon commonly referred to as "spalling."

Meetings were held between Benson, CST, Blakeslee and Midwest in an effort to identify the cause of the spalling. CST hired an independent structural engineer, Erich Mees, to investigate the problem and to assist CST, Blakeslee and Midwest. Mees made a report to CST which set forth his opinion as to the cause of the spalling. CST, Blakeslee and Midwest, in consultation with Mees, developed a repair procedure with the approval of Benson and Playskool.

In January 1977 Playskool notified Benson that more spalling had occurred when a "couple of five-pound pieces of precast concrete came crashing down" inside the employees' entrance on the west side of the building. Benson in turn notified CST that Benson's immediate inspection revealed a repetition of the spalling which had occurred approximately one year before. Benson asked CST to correct the situation. The parties were unable to reach an agreement regarding responsibility for the cost of repairs. As a result, Playskool filed a complaint against Benson in April 1977 alleging fraud, breach of contract and breach of implied warranty of fitness. Benson filed a third-party complaint against CST for contractual indemnity and common law indemnity and against Blakeslee and Midwest for common law indemnity.

After filing its complaint, Playskool retained an engineering firm to develop a repair program for the facility. Ian Chin, a structural engineer, was primarily responsible for developing the repair program. Chin came to certain Conclusions and made certain recommendations to Playskool which were followed in the spring of 1979 for the purposes of repair.

However, in the summer of 1981, Chin was contacted by Playskool and told that the problem had recurred. Under Chin's direction, the cracks that had developed after 1979 were repaired during the winter of 1981. During the repair process Chin discovered that there were serious structural defects within the topping slab which he determined had to be removed. During the removal of the topping slab, Chin noticed that the slab was not bonded to the tops of the double-tee panels and that the mesh reinforcement in the topping slab was misplaced. This indicated to Chin that there was no composite action between the topping slab and the double-tee panels. Composite action occurs when the bond between those panels and the topping slab permits the floor system to act structurally as a single unit. It was his opinion that since there was no composite action between the topping slab and the double-tee panels, the double-tee panels were not capable of supporting the 175-pound design live load requirement of the contract. It was also his opinion that the cracks in the double-tee panels occurred because of the lack of composite action between the topping slab and the double-tee panels. He advised certain persons from Playskool that since there was no composite action between the topping slab and the double-tee panels, the second floor would not meet the design live load requirement and that a thorough analysis of the floor should be conducted. Without composite action, he said, the floor was capable of carrying only 45 pounds per square foot.

The original complaint filed by Playskool in 1977 alleged that "extensive cracking and separation has occurred between the walls and second floor of the manufacturing facility." Playskool later filed an amended complaint in July 1979, which added, "Concrete beams and columns have cracked and failed resulting in a condition of spalling concrete." After receiving Chin's opinion in 1981, Playskool filed its second amended complaint in September 1982 which provided in part as follows:

"Ragnar Benson materially breached the construction contract by failing and refusing to properly design, construct and install the manufacturing facility in that:

(e) Concrete columns, ledger beams, double-tee beams and floor slabs, were improperly designed, constructed and installed."

In October 1983 the plaintiff took Chin's deposition again. (It had first taken his deposition in 1980. That 1980 deposition will be referred to later.) In the 1983 deposition Chin testified to his observations in 1981 during the repair work with respect to the topping slabs installed by the defendant. It was at that deposition he testified to what he had found in 1981 and gave his opinion that the work on the floor itself was defective.

We pause in the recitation of the facts and procedural history to identify the deposition of Chin in 1983 as the point at which the plaintiff contends the limitation period began to run. The plaintiff claims that until it heard in 1983 the observations made by Chin in 1981 and the opinion that he formed at that time, it had no reason to believe that the cause of the problems in the Playskool facility was defective work by Kalman.

In November 1983 the plaintiff sought leave to amend its third-party complaint in the Playskool case and add Kalman as an additional third-party defendant. The trial Judge denied the plaintiff's motion because of the possible delay ...

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