GILLESPIE COMMUNITY UNIT SCHOOL DISTRICT NO. 7, Macoupin County, Illinois, Appellant,
WIGHT & COMPANY, Appellee
Appeal from the Appellate Court for the Fourth District.
The fact that the limitation provision entitled " Construction--Design management and supervision" stated that it did not apply to fraudulent misrepresentations did not mean that there was no limitation period at all for a construction-based claim of fraudulent misrepresentation by concealment of material fact; rather, the five-year default provision for " all civil actions not otherwise provided for" was applicable.
For Gillespie Community Unit Schoo District No. 7, APPELLANT: Mr. Rick Verticchio, Ms. Gina Verticchio, Verticchio & Verticchio, Gillespie, IL.; Verticchio & Verticchio, Gillespie, IL.; Mr. Thomas J. Verticchio, Mr. Matthew T. Kinst, Swanson, Martin & Bell, LLP, Chicago, IL.; Swanson, Martin & Bell, LLP, Chicago, IL.
For Wight & Company, APPELLEE: Ms. Anne L. Blume, Ms. Janet R. Davis, Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL.; Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL.
JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
Plaintiff, Gillespie Community Unit School District No. 7 (School District), filed suit against defendant, Wight & Company, alleging professional negligence, breach of implied warranty, and fraudulent misrepresentation by concealment of material fact, with respect to the building of an elementary school in Benld, Illinois.
Wight moved for summary judgment in its favor on all counts, arguing that the School District's claims for professional negligence and for breach of implied warranty were barred by the four-year statute of limitations in section 13-214(a) of the Code of Civil Procedure (the Code) (735 ILCS 5/13-214(a) (West 2010)) and that the claim for fraudulent misrepresentation was barred by the five-year statute of limitations in section 13-205 (735 ILCS 5/13-205 (West 2010)) of the Code. The circuit court of Macoupin County agreed and granted Wight's motion for summary judgment.
The Appellate Court, Fourth District, affirmed. 2012 IL App (4th) 111001-U. Relevant to the instant appeal, the appellate court held that the five-year statute of limitations in section 13-205 of the Code applied to the School District's claim for fraudulent misrepresentation, so that the trial court properly found that the claim was barred by the statute of limitations.
Thereafter, this court allowed the School District's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).
The School District's complaint alleged that in 1998, the board of education of the School District decided to proceed with an investigation into the construction of a new elementary school. One possible site for the school was on School District property in Benld, Illinois, immediately adjacent to the existing elementary school. Wight and the School District entered into a contract, referred to as the " Pre-Referendum Service Agreement" (the Agreement), wherein Wight agreed to provide services preliminary to the actual designing and construction of the new school
building. As part of the Agreement, Wight agreed to perform a " site mine investigation." The Agreement specifically provided that:
" The design team will investigate and examine the extent of mining in the Gillespie/Benld region. This investigation will result in an analysis of the proposed building site for suitability of construction and implications on proposed structural systems."
Thereafter, as part of its site mine investigation, Wight hired Hanson Engineers, Inc., to conduct a study of the School District property in Benld to assess the potential for coal mine subsidence. On February 16, 1999, Charles Burgert, a physical engineer at Hanson, sent a letter to the attention of Mark Tucker of Wight. The letter was regarding the " Undermining Assessment for Gillespie School District Proposed Elementary School Benld, Illinois." Burgert's letter stated that it " describes the history and approximate extent of coal mining activity in the Benld/Gillespie area of Illinois, and also provides a general presentation regarding subsidence and its risk of occurrence."
Burgert's letter noted recorded subsidence events. The letter indicated that in 1934 Quade performed an early mine subsidence investigation in the Benld/Gillespie area and recorded numerous ground subsidence events, the locations of which were shown on an attachment to the letter, designated Figure 5. Four additional ground subsidence events were recorded in the Benld/Gillespie area between 1982 and 1998, and also were shown on Figure 5. The letter further noted that the Illinois Mine Subsidence Insurance Fund had recorded five to six subsidence events since 1979, affecting more than 40 structures in the Benld/Gillespie area, but indicated that the locations of those subsidence events were confidential for insurance purposes.
Under the heading " Risk of Subsidence," Burgert wrote:
" No one can predict when or if the land above the roof-and-pillar mine will subside. If any coal has been removed from the area, subsidence of the overlying geologic materials is always a possibility. Subsurface investigations undertaken to predict the possibility of future subsidence are always very expensive (especially at the depths of the Superior Mines) and are generally inconclusive. The owner should consider the fact that there is no economically feasible corrective action (such as filling the mine void) that can be taken to guarantee against future subsidence.
Based on the number of ground subsidence events shown on Figure 5, it can be intuitively concluded that there is a relatively high risk of subsidence in the Benld/Gillespie area. At first glance, there appears to be an area around the proposed school location shown on Figure 5 where subsidence events have not occurred. However, the following points should be considered:
(1) Figure 5 does not include every ground subsidence event that has occurred in the Benld/Gillespie area. There is a significant 40 to 50 year gap between the privately funded 1934 Quade study and the start of the recording of mine subsidence events by public agencies in the late 1970s and 1980s. Apparently, the recording of mine subsidence events during this intervening time period was not performed.
(2) The Superior Mines No. 1 to No. 4 converge near the city of Benld. Therefore, the Benld area may have been the last mined out area before the coal mines were abandoned in the 1950s. Subsidence events in the Benld area could possibly be delayed in comparison to earlier mined out areas.
The risk of future subsidence at the proposed school location should be evaluated along with other features of the site (such as the desirability of the location) with the knowledge that it will not be possible to completely avoid similar risks in the area closely surrounding the city of Benld, Illinois."
Hanson followed the letter with a Foundation Engineering Report (the Report) for the proposed elementary school in Benld, Illinois. The Report was prepared by Hanson for Wight, and was dated March 23, 2000. The introduction to the Report stated that it " presents the results of a subsurface investigation by Hanson Engineers Incorporated (HEI) for the proposed new elementary school that is to be constructed at the existing elementary school property in Benld, Illinois."
The Report included a heading titled " Geology," which stated, inter alia :
" Our review of the available Illinois State Geological Survey maps of the mined-out coal areas in Illinois indicates that the site is undermined, and that there have been documented occurrences of ground surface subsidence due to collapse of abandoned coal mines within the town of Benld and the surrounding vicinity. Records indicate that the Superior Coal Company operated mines in the site vicinity from about 1900 to 1955."
Under the heading, " Risk of Coal Mine Subsidence," the Report stated:
" Due to the many unknown variables involved in predicting both the chance of subsidence and its possible magnitude, it is nearly impossible to quantify the risk involved in building on an undermined site. Surface investigations undertaken to predict the possibility of future subsurface are always very expensive and are generally inconclusive. The owner should consider the fact that there is no ...