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07/21/95 MARJORIE K. PIERCE v. JOE KEIM BUILDERS

July 21, 1995

MARJORIE K. PIERCE, WIDOW OF CHARLES L. PIERCE, DECEASED, PLAINTIFF-APPELLANT,
v.
JOE KEIM BUILDERS INCORPORATED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Patrick McGann, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Zwick delivered the opinion of the court: McNAMARA, P.j., and Egan, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, Marjorie K. Pierce, brought an action under the Structural Work Act, seeking recovery for the wrongful death of her husband. The trial court dismissed plaintiff's amended complaint against defendant, Joe Keim Builders, Incorporated, finding that the claim asserted in the amended pleading was barred because it was not presented until after expiration of the applicable statute of limitations. Plaintiff has appealed, contending that the trial court erred in finding that the amended complaint did not relate back to the timely filing of her initial complaint.

Plaintiff is the surviving spouse of Charles L. Pierce, a carpenter, who was injured on May 19, 1986, when he fell from a scaffold while working on a siding crew. On May 25, 1986, Pierce died as a result of the injuries sustained in the fall on May 19, 1986. Plaintiff brought suit against defendant on July 30, 1987, asserting a claim under the Illinois Structural Work Act. 740 ILCS 150/1 et seq.

In her initial complaint, plaintiff alleged that Pierce was injured while working at Lot 48 of the Maryknoll subdivision in Glen Ellyn, Illinois. The complaint alleged that defendant was in charge of thework at the site where Pierce was injured and that defendant willfully violated certain provisions of the Structural Work Act.

Pretrial discovery established the following facts.

Defendant Keim Builders was the general contractor for the homes built at both Lot 48 of the Maryknoll subdivision and Lot 20 of the Sunnybrook Farms subdivision. Overstreet Construction Company, Pierce's employer, was the carpentry subcontractor for most, if not all, of the homes built by Keim Builders at the Maryknoll and the Sunnybrook subdivisions, including the homes built on Lots 48 and 20. The Sunnybrook Farms subdivision and the Maryknoll subdivision abut one another, but have no through streets. The driving distance between Lot 48 in the Maryknoll subdivision and Lot 20 in the Sunnybrook Farms subdivision is approximately one-half mile.

At the time of his fall on May 19, 1986, Pierce was working with two other carpenters, Robin David and Edward Natonski. Robin David executed an affidavit on May 26, 1993, in which he averred that the accident happened at Lot 20 of the Sunnybrook Farms subdivision in Glen Ellyn, Illinois. Edward Natonski testified at his discovery deposition on April 29, 1992, that he believed the accident happened in the Sunnybrook Farms subdivision.

Michael T. Reid, one of plaintiff's attorneys, executed an affidavit which attested that he interviewed Robin David and Edward Natonski, who both told him that the accident occurred at Lot 48 of the Maryknoll subdivision.

The plaintiff testified at her discovery deposition on December 12, 1990, that her husband was working at the Maryknoll subdivision when he fell from the scaffold. Plaintiff also executed an affidavit on July 2, 1993, which stated that it was always her understanding and belief that her husband was working at the Maryknoll subdivision on the date of his accident. Plaintiff acknowledged, however, that she signed an insurance claim form dated July 5, 1986, in which she stated that the accident occurred at Lot 20 of the Sunnybrook Farms subdivision. This form was discovered in 1993, three years after the statute of limitations had expired, when Casualty Insurance Company produced its workers' compensation case file. Plaintiff's affidavit attested that she had no first-hand knowledge of where the accident occurred, and no recollection as to where she obtained the information included in the insurance claim form which indicated that the accident occurred at Lot 20 of the Sunnybrook Farms subdivision.

At the time of the accident, Jack Kersch was defendant's superintendent at the Maryknoll subdivision, and Howard Belcher was defendant's superintendent at the Sunnybrook Farms subdivision. Jack Kersch testified at his discovery deposition that he supervised the construction of approximately six of the 12 homes built by defendant in the Maryknoll subdivision. Kersch did not know Pierce and did not learn of the accident until several days later when he heard that someone had fallen but was okay. Kersch was the supervisor for Lot 48, but he did not know on which lot the accident had occurred. Howard Belcher resigned from defendant's employ and moved to New York shortly after the accident and was never deposed.

On March 31, 1993, the trial court granted plaintiff's motion for leave to file an amended complaint. Plaintiff's amended complaint deleted any reference to the lot number or subdivision where Pierce was working in May 19, 1986. The amended complaint alleged only that the work site was located in Glen Ellyn, Illinois, that Keim Builders ...


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