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05/05/94 EARL MCGEE v. WARREN DANZ

May 5, 1994

EARL MCGEE, PLAINTIFF-APPELLANT,
v.
WARREN DANZ, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County. No. 89L502. Honorable Stuart H. Shiffman, Judge Presiding

As Corrected May 23, 1994. Released for Publication June 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

Plaintiff, Earl McGee, appeals from a summary judgment entered in favor of defendant, attorney Warren Danz, in a legal malpractice action based upon defendant's alleged failure to commence litigation within the appropriate statutory period. The parties agree that if a four-year statute of limitations (Ill. Rev. Stat. 1991, ch. 110, par. 13-214(a)) applies, the trial court properly granted summary judgment.

We affirm.

I. BACKGROUND

On December 23, 1985, plaintiff was injured while working on a remodeling project of a residence owned by Michael Scully, the owner of Ractain Construction Company, the contractor on the project and plaintiff's employer. Plaintiff hired defendant to represent him for claims arising out of this incident. Defendant filed a workers' compensation claim against Scully on behalf of plaintiff but failed to pursue a third-party claim against L.D. Electric, a subcontractor on the project. Sometime between March and December 1989, the parties ended their attorney-client relationship.

Plaintiff hired new counsel and filed a legal malpractice claim against defendant on December 13, 1989, alleging that defendant failed to file a cause of action against responsible third parties within the two-year statute of limitations provided for actions based on personal injuries under section 13-202 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 13-202). Defendant's motion for summary judgment alleged that as a matter of law he could not be negligent for failing to file a third-party claim on behalf of plaintiff because the applicable statute of limitations in this case was section 13-214(a) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 13-214(a)), not section 13-202 of the Code. As a result, defendant points out that the statute of limitations under section 13-214(a) of the Code did not expire until December 23, 1989, when defendant no longer represented plaintiff. Thus, the parties are in somewhat anomalous positions before this court-plaintiff urges the application of the two-year statute of limitations (section 13-202 of the Code) to the cause of action underlying his legal malpractice claim, while defendant urges the application of the four-year statute of limitations (section 13-214(a) of the Code).

In his deposition, plaintiff stated that on the date of his injury, he was working on a project remodeling a house owned by Scully. He was directed to the basement of the house to install a support beamin order to shore up the main floor. The only illumination in the basement was temporary lighting installed by L.D. Electric, which had been working at the project site since September 1985. Plaintiff stood on a bucket and used a hammer to knock out a two by four that ran between the floor joists. While bracing himself against an iron sewer pipe, he grabbed a metal rod extending from the two by four and received a severe electric shock from contact of the temporary wiring with the rod. Plaintiff testified that in addition to the temporary wiring, L.D. Electric had run conduit and wiring to the receptacles upstairs for new construction, removed the old fuse box and installed a new circuit breaker, and run wire from the new breaker box out to the "mixer" across the street. Prior to his injury, plaintiff had done some plastering on the main floor, built a fence, and laid a retaining wall on the exterior of the property.

In his deposition, Scully indicated that he had plumbing and heating subcontractors working on the remodeling project. This work required "some demolition and reorganizing of the interior of the house * * *. And all of the mechanical aspects of the house were to be brought up to code." Nanchen Scully, Michael Scully's wife and the other owner of the property, filed an affidavit stating that a program of replacement and repair to the premises was ongoing at the time of plaintiff's injury. The temporary wiring installed in the basement was not intended to be permanent and was installed to enable the workers to see. She stated that the program of replacement and repair did not include structural changes or additions to the property.

II. ANALYSIS

In granting defendant's motion for summary judgment, the trial court relied on Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 595 N.E.2d 561, 172 Ill. Dec. 200, concluding that plaintiff's injury occurred in a "construction-related event." The court made this determination based upon the nature of the entire project rather than the conduct of any individual subcontractor. Accordingly, the court ruled that the four-year statute of limitations of section 13-214(a) of the Code applied.

Plaintiff argues that neither the remodeling project in its entirety nor the work specifically performed by L.D. Electric constitutes anything more than replacement or repair, which the four-year statute of limitations of section 13-214(a) of the Code does not encompass. Defendant contends plaintiff's action was based on injuries he sustained while working on construction of an improvement to real ...


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