The opinion of the court was delivered by: Justice Rochford
Appeal from the Circuit Court of Cook County. No. 10 CH 04169 Honorable Mary Anne Mason, Judge Presiding.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Presiding Justice Hall and Justice Hoffman concur with the judgment.
The issue before us on this Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)) appeal is whether the 1-year limitations period for civil actions against government entities set forth in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/8-101 (West 2010)) applies to United Airlines, Inc.'s (United) breach of contract action against the city of Chicago (City). United's contract action arose out of a collision between a United plane and a City truck that resulted in property damage and loss of use of the plane. For the reasons that follow, we hold that the 10-year limitations period for actions on written contracts set forth in section 13-206 of the Code of Civil Procedure (the Code) (735 ILCS 5/13-206 (West 2010)), and not the 1-year limitations period of section 8-101 of the Tort Immunity Act, applies here.
United filed a two-count complaint for declaratory judgment and breach of contract against the City. The City filed a motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2010)), arguing that: (1) both counts of the complaint failed to state a cause of action and should be dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)); and (2) both counts should be dismissed pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2010)) as they were thinly veiled tort actions that are barred by the 1-year statute of limitations of section 8-101 of the Tort Immunity Act (745 ILCS 10/8-101 (West 2010)). The circuit court dismissed the declaratory judgment count for reasons unrelated to this appeal and that count is not before us. As to the breach of contract count, the circuit court found that it stated a cause of action in all respects except for its failure to allege that United had complied with the contract. Accordingly, the court granted the City's section 2-615 motion to dismiss, but granted United leave to replead. Meanwhile, the court denied the City's section 2-619(a)(5) motion to dismiss the breach of contract count, finding that it was timely filed within the 10-year limitations period for actions on written contracts. See 735 ILCS 5/13-206 (West 2010).
United subsequently filed its amended verified complaint, in which it repleaded count I (for declaratory judgment) solely for the purpose of preserving the circuit court's dismissal for review. United repleaded count II for breach of contract and included therein the additional language that it had complied with the contract. Count II is the only count before us.
Pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)), the court certified the following question for our review:
"Does the one-year limitation period in [section 8-101 of the Tort Immunity Act] also bar a claim arising out of a single event seeking recovery for resultant property damage and other related losses against a governmental entity when the plaintiff is also a party to a contract with the governmental entity and has filed within the 10-year limitation period for actions on written contracts a breach of contract claim seeking recovery of property damage and related other losses?"
We allowed the City's petition for interlocutory appeal and accepted the certified question for immediate appellate review. Review is de novo. Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007); Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 466 (2008).
Generally, where both a tort and a contract cause of action arise out of the same fact pattern, plaintiff may proceed with the theory of his choice. Board of Education of Community Consolidated School District No. 54 v. Del Bianco & Associates, Inc., 57 Ill. App. 3d 302, 306 (1978). United argues that it proceeded under a contract action, which is subject to the 10-year limitations for actions on written contracts set forth in section 13-206 of the Code. Section 13-206 states in pertinent part: "[A]ctions on *** written contracts *** shall be commenced within 10 years next after the cause of action accrued." 735 ILCS 5/13-206 (West 2010).
The City responds that although United titled its action as one for "breach of contract," it is in actuality a negligence claim that is subject to the 1-year limitations period set forth in section 8-101 of the Tort Immunity Act. Section 8-101 states in pertinent part:
"(a) No civil action *** may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.
(c) For purposes of this Article, the term 'civil action' includes any action, whether based upon the common law or statutes or Constitution of this ...