to . . . ." While paragraph 18(C) may constitute an affirmative act by defendant, plaintiffs have failed to allege that this act was calculated to prevent and actually did prevent the discovery of plaintiffs' cause of action. In any event, this is a property damage action. Nothing in paragraph 18(C), which alleges that defendant obscured medical and scientific data as to the link between asbestos and disease processes, can be construed to have prevented plaintiffs from learning that the Eastern building contained asbestos. Plaintiffs have pled no facts establishing fraudulent concealment. The product liability statute of repose is not tolled.
Plaintiffs' negligence claim, count II, is governed by the five year statute of limitations of Section 13-205 of the Illinois Code of Civil Procedure. Section 13-205 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, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.
Ill Rev Stat ch 110, P 13-205. Section 13-205 is the catch-all statute of limitations for property damage in "all civil actions not otherwise provided for." Calumet Country Club v Roberts Environmental Control Corp., 136 Ill. App. 3d 610, 483 N.E.2d 613, 615, 91 Ill. Dec. 267 (1st Dist 1985). If applicable, specific statutory provisions such as section 13-214, the construction statute of limitations and the construction statute of repose, take precedence over the general limitations period of section 13-205. Calumet at 615. However, because the court has determined that the construction statute of repose is not applicable, section 13-205 is the proper statute to be applied.
Section 13-205 provides that an action must be brought within five years after the cause of action accrued. The Illinois Supreme Court has held that a cause of action accrues when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused. Nolan v Johns-Manville Asbestos, 85 Ill. 2d 161, 421 N.E.2d 864, 868, 52 Ill. Dec. 1 (1981). Once this standard is met, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed. Id at 868.
At the time Bankers conveyed the Eastern building to the Foundation in 1984, Bankers also conveyed the Gulf & Western building to the Foundation along with documentation detailing the existence of asbestos-containing fireproofing in the Gulf & Western building, tenants' concerns over the presence of asbestos and proposals for asbestos removal. The Foundation also hired Bankers' vice-president of real estate, Martin, and his associate, Curtis, both of whom were familiar with Gulf & Western's asbestos problems. Given this documentation and the expertise of Martin and Curtis, the question is whether plaintiffs knew or should have known by 1984 that the Eastern building also contained asbestos. Defendant contends that this knowledge should have put plaintiffs on notice that the Eastern building might contain asbestos and that they were under a duty to investigate further. Plaintiffs need only have contacted Eastern or checked the building specifications, according to defendant, to determine whether the Eastern building contained asbestos. Because plaintiffs filed suit in 1991, more than five years after their action allegedly accrued in 1984, defendant contends that plaintiffs' negligence claim is time-barred.
Defendant's argument misapplies the discovery rule by arguing that plaintiffs had a "duty to investigate" whether or not they were injured. Under Illinois law, the obligation to investigate does not arise until after plaintiffs knew or reasonably should have known that an injury occurred and that it was wrongfully caused. The purpose of the investigation is to determine whether the injury is actionable. Here, plaintiffs did not learn that the Eastern building contained asbestos until a tour of the facility in January of 1987 or 1988. Thus, the duty to investigate whether the contamination was actionable arose after the injury was discovered. Plaintiffs' knowledge of Gulf & Western's asbestos problems may have reduced the amount of investigation necessary to determine whether an actionable wrong was committed, but it did not require plaintiffs to investigate whether the Eastern building and other buildings owned by plaintiffs were contaminated for statute of limitations purposes. Because the negligence action accrued in 1987 or 1988, plaintiffs' claim was timely filed within the five year limitations period set forth in section 13-205. Defendant's motion for summary judgment on plaintiffs' negligence claim is denied.
Plaintiffs have failed to plead an action for negligent misrepresentation, count IV. To plead a claim for negligent misrepresentation, plaintiffs must allege that a false statement was made to them upon which they justifiably relied to their detriment. Board of Education City of Chicago v A, C and S, Inc., 131 Ill. 2d 428, 546 N.E.2d 580, 591, 137 Ill. Dec. 635 (1989). Plaintiffs have not pled that defendant made a false statement, much less a representation of any kind, to plaintiffs at the time of the sale of the fireproofing. Plaintiffs have alleged that Keene and its alleged predecessor never dealt with plaintiffs concerning the fireproofing material in the Eastern Airlines building. (Complaint at P 6.) When the Eastern Airlines building was constructed in 1968, plaintiffs did not own the building and therefore Keene and its predecessor company could not have made any statements to plaintiffs regarding the fireproofing. Since defendants made no statements to plaintiffs upon which they could have justifiably relied, no claim for negligent misrepresentation can be pled.
ORDERED: Defendant's motion to dismiss plaintiffs' strict liability and negligent misrepresentation claims is granted. Defendant's motion for summary judgment on plaintiffs' negligence claim is denied.
George W. Lindberg
United States District Judge
Date: JAN 19 1993