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09/07/94 ILLINOIS MASONIC MEDICAL CENTER v. A C & S

September 7, 1994

ILLINOIS MASONIC MEDICAL CENTER, PLAINTIFF-APPELLEE,
v.
A C & S, ET AL., DEFENDANTS-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Dean M. Trafelet, Judge Presiding.

Released for Publication October 14, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

This interlocutory appeal by defendants, manufacturers of asbestos-containing products sold to plaintiff, Illinois Masonic Medical Center, arises from the trial court's certification of the following question pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308):

"Whether section 13-214(b) of the Illinois Code of Civil Procedureapplies to an action against an entity which designed and/or manufactured, but did not install, a material or product which was incorporated into a building during construction."

We answer this question in the negative with certain exceptions noted, and file this opinion pursuant to Illinois Supreme Court Rule 23(a)(1). Official Reports Advance Sheet No. 15 (July 20, 1994), R.23, effective July 1, 1994.

Plaintiff contracted for the construction of buildings in the mid-1960's into which were introduced asbestos-containing products allegedly "mined, manufactured, processed, sold, marketed and placed * * * into the stream of commerce" by the defendants. *fn1

In 1965 the Illinois legislature passed the State's first statute of repose for construction-related activities (Ill. Rev. Stat. 1965, ch. 83, par. 24(f)), which is now codified in section 13-214(b) of the Illinois Code of Civil Procedure. (735 ILCS 5/13-214(b) (West 1992).) The present statute provides in pertinent part:

"No action based upon tort, contract or otherwise may be brought 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 after 10 years have elapsed from the time of such act or omission (emphasis added)." 735 ILCS 5/13-214(b) (West 1992).

Plaintiff commenced this action in 1990 alleging property damage arising from the integration of defendants' products into its medical buildings. Defendants filed a motion to dismiss the complaint interposing a defense under section 13-214(b), which the trial court granted and then reversed on plaintiff's motion to reconsider. Subsequently, the court granted defendants' motion for interlocutory appeal certifying, pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308), the question which we now consider.

Before examining the scope of section 13-214(b) protection, we consider plaintiff's assertion that the statute does not apply retroactively to claims arising out of building construction prior to its adoption in 1982. The construction statute of repose formerlycontained language that "the limitations of the Section shall apply to all acts or omissions which occur on or after November 29, 1970." ( McIntosh v. A & M Insulation Co. (1993), 244 Ill. App. 3d 247, 253, 614 N.E.2d 203, 185 Ill. Dec. 69, citing Ill. Rev. Stat. 1981, ch. 110, par. 13-214(e); see 735 ILCS 5/13-214(e) (West 1992).) In September 1981 the legislature amended this statute to omit subsection (e), evincing its intent to make the legislation retroactive in application. ( McIntosh, 244 Ill. App. 3d at 253, citing DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 800, 484 N.E.2d 1220, 92 Ill. Dec. 365; Matayka v. Melia (1983), 119 Ill. App. 3d 221, 224, 456 N.E.2d 353, 74 Ill. Dec. 851.) Although the construction of plaintiff's medical buildings occurred 30 years prior to the litigation at issue, section 13-214(b) applies to plaintiff's claim. Whether or not the statute absolves defendants from liability due to the late filing of the complaint, however, presents another issue.

Defendants construe section 13-213(b) to protect two categories of people as evinced by the comma separating those who effect the "design, planning, supervision, observation or management of construction" and those who render the "construction of an improvement to real property." Defendants classify their manufacture of mass-produced asbestos-containing products as pertaining to the latter category although such products were installed by other persons into the properties at issue.

The cardinal rule of statutory construction is to ascertain and give effect to the true meaning of the legislature. ( McIntosh, 244 Ill. App. 3d at 251, citing Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194, 595 N.E.2d 561, 172 Ill. Dec. 200.) Courts look to the statutory language as the best indication of the drafters' intent. ( McIntosh, 244 Ill. App. 3d at 251-52, citing People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 68 Ill. Dec. 321.) Where the language is unambiguous, a court must enforce the law as enacted without considering other aids. McIntosh, 244 ...


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