Foran Glennon Palandech Ponzi & Rudloff

December 2014

Illinois Set to Amend Construction Statute of Repose; May Face Constitutional Challenge

Eric Shukis

As of the date of this article, Illinois appears set to amend its construction statute of repose.  The amendment would carve out an exception for asbestos claims, which would not be subject to any time bar.  The immediate concern for design professionals is the “revival” of a vast number of asbestos claims that accrued decades ago, when asbestos was widely used in construction projects.  But attempts to revive these otherwise stale claims would appear to run afoul of the Illinois Constitution.

Background.  Illinois imposes a ten-year statute of repose for any actions involving defects and deficiencies in the design and construction of improvements to real property.  735 ILCS 5/13-214(b).  Specifically, Subsection b states:

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.

The statute is meant to insulate “all participants in the construction process from the onerous task of defending against stale claims.” MBA Enterprises, Inc. v. N. Illinois Gas Co., 307 Ill. App. 3d 285, 288, 717 N.E.2d 849, 852 (3rd Dist. 1999).  However, Illinois appears to be on the verge of passing SB2221, which includes an amendment that eliminates 5/13-214’s ten-year repose period if the action involves an asbestos-related injury.  Specifically, the amendment adds new Subsection (f), which reads:

Subsection (b) does not apply to an action that is based on personal injury, disability, disease, or death resulting from the discharge into the environment of asbestos.

The proposed amendment has caused somewhat of a stir – it was tacked onto SB2221 (an unrelated bill having to do with how state correctional institutions are reimbursed) two days before Thanksgiving, during a veto session. Shortly therafter, SB2221 passed both the Illinois House and Senate along party lines.  The bill now goes to the desk of out-going Governor Pat Quinn.

Discussion.  Litigants whose asbestos claims might otherwise be time-barred under the current version of 5/13-214 may be tempted to use new Subsection (f) to “revive” their claims against design professionals who specified the use of asbestos-containing materials in projects decades ago.  But doing so would not pass constitutional muster because once a repose period has extinguished a cause of action, a defendant has a vested right that is protected by the Illinois Constitution and which is beyond legislative interference.  M.E.H. v. L.H., 177 Ill. 2d 207, 218, 685 N.E.2d 335, 340-41 (1997); see also Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 409-12, 917 N.E.2d 475, 484-86 (2009).  In short, once a claim is time-barred by the applicable statute of repose, it remains time barred even after a repose period is modified or abolished.  Id.  A defense based on the expiration of a statute of repose is considered a valuable property right and is subject to just as much consideration as a plaintiff’s right to bring the suit itself.  M.E.H., 177 Ill. 2d at 218.  Accordingly, if Governor Quinn signs SB2221 into law, new Subsection (f) to 5/13-214 should only be applied prospectively.

Conclusion.  The health hazards posed by asbestos are now a matter of common knowledge.  Thus, the risk of perpetual liability for future asbestos exposures is relatively slight.  The real concern for the design community is litigants trying to revive otherwise stale asbestos-injury claims that accrued long ago, when asbestos was widely used in construction projects.  But because those claims expired under the current version of 735/13-214, they should remain time-barred, irrespective of proposed Subsection (f).