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Swann & Weiskopf v. Meed Associates Inc.

April 29, 1999

SWANN & WEISKOPF, LTD., PLAINTIFF-APPELLANT,
v.
MEED ASSOCIATES, INC., AN ILLINOIS) CORPORATION, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Wolfson

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. 95 L 2659

HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING

Confronted with the claim that its contribution counts were barred by the statute of limitations, Swann & Weiskopf, Ltd. (Swann) offers two reasons why its action against Meed Associates, Inc. (Meed) should survive--the discovery rule and the equitable estoppel doctrine. Neither works. We affirm the trial court's order granting summary judgment to Meed.

FACTS

In 1985, Swann agreed to provide design services for S.B. Holdings at the Libertyville Manor Extended Care Facility. Swann subcontracted Bernard Orzechowski (Orzechowski) and his company, Meed, to design a storm water removal system for the Libertyville project.

In 1998, Swann's project manager Jim Leyden (Leyden) testified at a deposition. Leyden said:

Swann had hired Meed on several occasions, and contacted Meed for civil engineering on the project because, "Meed Associates performed high-quality engineering work." Meed's work included designing the "mechanical, plumbing and storm water retention" systems.

Shortly after the project was completed in 1989, S.B. Holdings notified Swann of the project's flooding problems. Swann dispatched Leyden and Orzechowski to investigate, and Orzechowski concluded earth mounds around the project site contributed to the flooding problems. When asked if he agreed with Orzechowski's opinion, Leyden responded:

"Meed Associates knew the location of the earth mounds. It was brought to their attention as per our site plan and also on some *** previous correspondence that we've talked about between the Village of Libertyville and Meed Associates.

[Orzechowski] was required to include the calculations for water retention from any contributory area off of those earth mounds. That much I do know."

"[O]n or about October 12 of '89," Swann learned S.B. Holdings had hired an engineering firm, Albert Halff Associates (Halff), who "*** was questioning the design of the storm water removal system ***." In an October 12, 1989, letter, from Halff to S.B. Holdings, which Swann representatives read that month, Halff was "critical" of Meed's design of the storm water removal system. Halff concluded the eight-inch storm water pipe shown in the plans was insufficient to handle storm water at the project site.

Orzechowski responded to Halff's October 12, 1989, letter with a December 14, 1989, letter to Swann:

"1. Storm water sewer sizes, slopes and materials meet all governing code requirements, at time of original plan and permit submittals. 2. Storm water retention was in compliance with all governing codes at the time of original plan and permit submittals. 3. Flooding problem [at the project site] was as a result of the earth mound ***. The earth mound resulted in the creation of rerouted storm water flow and possible blockage of water flow in the storm sewer system, due to soil erosion."

On April 18, 1990, S.B. Holdings filed a complaint against Swann in Lake County Circuit Court, alleging the storm water removal system was defectively designed. S.B. Holdings and Swann chose to arbitrate their case.

At a February 15, 1991, arbitration hearing, attorneys for S.B. Holdings and Swann discussed the design of the storm water removal system. According to S.B. Holdings' attorney, "The issues presented, however, in the claim are more directed towards the design of that [storm water removal] system than they are in the actual construction of that system." When asked by an arbitrator to summarize the issues in the case, S.B. Holdings' attorney repeated: "There is an issue related to the design of the storm water retention system ***." Swann's attorney, of course, was present.

During the arbitration case, Orzechowski assisted Swann and its independent engineering expert Kathleen Rafter (Rafter). The record does not reveal when Swann retained Rafter. Orzechowski still defended the design of the storm water removal system and his earth mound theory explaining the flooding ...


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