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King v. Paul J. Krez Co.

June 22, 2001

FLORENCE KING, INDIV. AND AS SPECIAL ADM'R. OF THE ESTATE OF ROBERT KING, DECEASED, PLAINTIFF-APPELLANT,
v.
PAUL J. KREZ COMPANY AND BRAND INSULATIONS, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. 97 L 491 The Honorable William D. Maddux, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

Not Released For Publication

FLORENCE KING, INDIV. AND AS SPECIAL ADM'R. OF THE ESTATE OF ROBERT KING, DECEASED, PLAINTIFF-APPELLANT,
v.
PAUL J. KREZ COMPANY AND BRAND INSULATIONS, INC., DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County. 97 L 491 The Honorable William D. Maddux, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

From approximately 1946 until 1982, the decedent, Robert King, worked for various pipefitting contractors at large construction jobsites in the Chicago area. As a pipefitter, the decedent installed pipe that connected to vessels and heat exchangers. Defendants, Paul J. Krez Company (Krez) and Brand Insulations, Inc. (Brand), were insulation contractors at some of decedent's jobsites. As insulation contractors, Krez and Brand insulated the pipes that were installed by the pipefitters. Plaintiff, the decedent's widow, asserts that the decedent came into contact with asbestos-containing insulation products at a total of five different jobsites; however, plaintiff's appeal addresses only three of these jobsites: Equitable Building in Chicago, Illinois; Union Oil Refinery in Lemont, Illinois; and the Dresden Powerhouse. According to plaintiff, Krez and Brand worked as insulation contractors at these three jobsites between the years 1964 and 1970. In June of 1995, the decedent was diagnosed with mesothelioma, an asbestos-related disease, and died a few months later. Plaintiff contends that her husband's death is attributable to his exposure to the asbestos-containing products installed by Krez and Brand at the aforementioned jobsites.

 Defendants Krez and Brand filed motions for summary judgment in the circuit court of Cook County, Illinois. The trial court summarily granted the Krez and Brand motions for summary judgment. Plaintiff appeals from the trial court's ruling on these motions. We affirm the trial court's entry of summary judgment in favor of the defendants and against the plaintiff.

In granting the motions for summary judgment in favor of Krez and Brand and against plaintiff, the trial court determined that the plaintiff's case is barred by section 13-214(b) of the Code of Civil Procedure, the construction statute of repose. (735 ILCS 5/13-214(b) (West 1998)). Although the trial court also found that plaintiff failed to show that the decedent was exposed to any product attributable to either Krez or Brand, we need not consider that issue. Further, the trial court never ruled upon the issue of whether section 13-214(b) is constitutional under the Illinois and United States Constitutions. An alleged error is not preserved for review if the trial court fails to rule upon it. McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941 (1993). As a result, this court need not consider whether the construction statute of repose is constitutional under the Illinois and United States Constitutions. Thus, the only issues addressed on appeal are whether plaintiff's case is barred by the construction statute of repose and whether the discovery rule is applicable to the construction statute of repose.

Section 13-214 provides in pertinent part:

"§13-214. Construction - Design management and supervision. As used in this Section "person" means any individual, any business or legal entity, or any body politic.

(a) Actions based upon tort, contract or otherwise 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 shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or reasonably should have known of such act or omission.* * *

(b) 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. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action as provided in subsection (a) of this Section." 735 ILCS 5/13-214 (West 1998).

The construction statute of repose plainly sets forth several enumerated activities, those being the design, planning, supervision, observation or management of construction, or construction of an improvement to real property. Under the construction statute of repose, any action based on an act or omission in design, planning or management of construction, or during construction, is governed by a 10 year repose period. Further, the trial court is to determine whether the defendant performed one of the activities enumerated in the statute and only a defendant who performs one of the enumerated activities is protected by the terms of the statute.

Defendants argue that they engaged in the activity of installing insulation and that this activity is an enumerated act under the construction statute of repose. According to the allegations in plaintiff's third amended complaint, it was between the years 1964 and 1970 that defendants allegedly installed asbestos-containing products at the three jobsites at issue in this appeal. Since plaintiff did not discover defendants' alleged act of installing asbestos-containing products ...


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