{ "id": 4284426, "name": "FEDERAL INSURANCE COMPANY, as Subrogee of Thomas Croghan, et al., Plaintiff-Appellant, v. KONSTANT ARCHITECTURE PLANNING, INC., et al., Defendants-Appellees (Hanson Roofing, Inc., Third-Party Plaintiff; P.T. Construction, Inc., Third-Party Defendant)", "name_abbreviation": "Federal Insurance v. Konstant Architecture Planning, Inc.", "decision_date": "2009-02-11", "docket_number": "No. 1-08-0938", "first_page": "122", "last_page": "128", "citations": [ { "type": "official", "cite": "388 Ill. App. 3d 122" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "156 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506689 ], "year": 1987, "pin_cites": [ { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0849-01" ] }, { "cite": "386 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4281648 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "214" }, { "page": "214" }, { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/386/0201-01" ] }, { "cite": "373 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269499 ], "year": 2007, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0270-01" ] }, { "cite": "752 A.2d 265", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1069747 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "271", "parenthetical": "Article 9.3 of AIA contract \"specifie[d] a clear date for accrual of a cause of action\" and was not governed by the discovery rule" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/md-app/132/0158-01" ] }, { "cite": "152 Md. App. 158", "category": "reporters:state", "reporter": "Md. App.", "year": 2000, "pin_cites": [ { "page": "159", "parenthetical": "Article 9.3 of AIA contract \"specifie[d] a clear date for accrual of a cause of action\" and was not governed by the discovery rule" } ], "opinion_index": 0 }, { "cite": "179 F.3d 147", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 844448 ], "year": 1999, "pin_cites": [ { "parenthetical": "enforcing AIA contractual provision, entitled \"Section 11.3,\" which circumvented the discovery rule by fixing the accrual date of any action to the date that work on the project was substantially completed" } ], "opinion_index": 0, "case_paths": [ "/f3d/179/0147-01" ] }, { "cite": "892 S.W.2d 304", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10001640 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/sw2d/892/0304-01" ] }, { "cite": "134 S.W3d 618", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9248338 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "620" }, { "page": "621" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/sw3d/134/0618-01" ] }, { "cite": "892 A.2d 830", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8988997 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "836" }, { "page": "836" }, { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/a2d/892/0830-01" ] }, { "cite": "332 Ill. App. 3d 562", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1033951 ], "year": 2002, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0562-01" ] }, { "cite": "149 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599792 ], "year": 1992, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0190-01" ] }, { "cite": "381 Ill. App. 3d 877", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3627818 ], "year": 2008, "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/381/0877-01" ] }, { "cite": "353 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3363136 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "636-37" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0628-01" ] }, { "cite": "363 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766154 ], "year": 2006, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0216-01" ] }, { "cite": "221 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793965 ], "year": 1991, "pin_cites": [ { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0730-01" ] }, { "cite": "325 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569911 ], "year": 2001, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0362-01" ] }, { "cite": "341 Ill. App. 3d 225", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575704 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "227-28" }, { "page": "227" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0225-01" ] }, { "cite": "114 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542831 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "261" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0252-01" ] }, { "cite": "229 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615076 ], "year": 2008, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0217-01" ] } ], "analysis": { "cardinality": 732, "char_count": 15691, "ocr_confidence": 0.791, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.29620085958679443 }, "sha256": "a4fbab4b2f4e809612dbca12352b61a64df6839f00884f4c9d80543aa2c6b381", "simhash": "1:388329d2d9785464", "word_count": 2541 }, "last_updated": "2023-07-14T22:04:57.079883+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FEDERAL INSURANCE COMPANY, as Subrogee of Thomas Croghan, et al., Plaintiff-Appellant, v. KONSTANT ARCHITECTURE PLANNING, INC., et al., Defendants-Appellees (Hanson Roofing, Inc., Third-Party Plaintiff; P.T. Construction, Inc., Third-Party Defendant)." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nPlaintiff, Federal Insurance Company (Federal), brought suit against defendant Konstant Architects, alleging breach of contract with respect to the design and building of a residence insured by plaintiff. Defendant filed a motion to dismiss the case under section 2 \u2014 619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014 619(a)(5) (West 2006)), arguing that the action was time-barred. The circuit court granted defendant\u2019s motion and dismissed the case. Plaintiff now appeals. For the following reasons, we affirm.\nPlaintiff filed a complaint on September 9, 2005. The complaint alleged that Thomas and Anita Croghan entered into a contract with defendant to design a home in Winnetka, Illinois. The contract consisted of a standard form agreement between owner and architect, which was a document issued by the American Institute of Architects (ALA). Article 9.3 of the contract provides:\n\u201cCauses of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion.\u201d\nThe parties agree that the home was built and substantially completed in 1997. The Croghans discovered water and mold damage in their home on November 7, 2002. The damages and remediation caused by water intrusion and mold infestation resulted in costs to repair in excess of $300,000. Plaintiff paid the Croghans for these losses pursuant to an insurance policy that it had previously issued to the Croghans. As a result, plaintiff became subrogated to the rights of its insureds, the Croghans.\nIn the complaint, plaintiff alleged that defendant breached the AIA contract by: (1) failing to properly design the Croghans\u2019 home, including the failure to provide proper ventilation and a roof design to prevent ice damming, leaking, and water intrusion; (2) failing to properly supervise the installation of the roof to prevent ice damming, water intrusion, and mold infestation; and (3) failing to warn the Croghans that their home, as designed and built, was at risk of having ice damming, water infiltration, and possible mold infestation.\nDefendant filed a motion to dismiss the case under section 2 \u2014 619(a)(5) of the Code. Defendant argued that the cause of action was time-barred because plaintiff had failed to file suit within the four-year limitations period governing the construction of improvements to real property (735 ILCS 5/13 \u2014 214(a) (West 2006)). Defendant maintains that pursuant to the AIA contract, specifically Article 9.3, the statute of limitations began to run at the time the house was completed in 1997, and, therefore, plaintiff did not file its complaint within the requisite four-year period.\nOn September 8, 2006, the circuit court entered an order granting defendant\u2019s motion to dismiss plaintiffs complaint. In doing so, the circuit court found that the four-year limitations period applied to this case (735 ILCS 5/13 \u2014 214(a) (West 2006)) and that Article 9.3 of the AIA contract provided that the applicable four-year period began to run on the date of substantial completion. Because four years had elapsed since the date of substantial completion, the circuit court concluded that plaintiffs complaint was time-barred. Plaintiff now appeals.\nThe circuit court dismissed this case under section 2 \u2014 619(a)(5) of the Code, which allows for the involuntary dismissal of an action that \u201cwas not commenced within the time limited by law.\u201d 735 ILCS 5/2\u2014 619(a)(5) (West 2006). Such a dismissal is subject to de novo review. Alvarez v. Pappas, 229 Ill. 2d 217, 220 (2008).\nOn appeal plaintiff contends, as it did below, that the statute of limitations applicable to this case is section 13 \u2014 206, which provides for a 10-year limitations period. Defendant contends that the four-year limitations period under section 13 \u2014 214(a) is applicable to this case. We agree with defendant.\nSection 13 \u2014 206 provides a 10-year limitations period for \u201cactions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing.\u201d 735 ILCS 5/13 \u2014 206 (West 2006). Section 13 \u2014 214(a) provides:\n\u201cActions 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 should reasonably have known of such act or omission.\u201d 735 ILCS 5/13 \u2014 214(a) (West 2006).\nSection 13 \u2014 214(a) protects a party who is being sued because it either engaged in an activity enumerated in section 13 \u2014 214(a) (People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261 (1986)), or failed to engage in such an activity (DeMarco v. Ecklund, 341 Ill. App. 3d 225, 227-28 (2003)). Thus, section 13 \u2014 214(a)\u2019s limitations period applies to an action alleging faulty construction against the architectural and engineering firm, general contractor, and masonry subcontractor involved in the building\u2019s construction. Hellmuth, 114 Ill. 2d at 263. Section 13 \u2014 214(a) has been held to apply to a landowner\u2019s failure to build a water retention pond (DeMarco, 341 Ill. App. 3d at 227); a water reclamation district\u2019s failure to pay for work generated by the district in its capacity as a construction supervisor (Blinderman Construction Co. v. Metropolitan Water Reclamation District of Greater Chicago, 325 Ill. App. 3d 362, 367 (2001)); and a landowner\u2019s nonpayment for extra work caused by its failure to timely approve or reject shop drawings (Lombard Co. v. Chicago Housing Authority, 221 Ill. App. 3d 730, 735 (1991)). Section 13 \u2014 214(a)\u2019s limitations period does not apply to the failure of homeowners to pay for a new roof (Prate Installations, Inc. v. Thomas, 363 Ill. App. 3d 216, 219 (2006)), or the failure of a city and project engineer to pay the general contractor additional compensation provided for by contract (Paschen Contractors, Inc. v. City of Kankakee, 353 Ill. App. 3d 628, 636-37 (2004)).\nAgain, section 13 \u2014 214(a) applies only if the defendant is being sued for its act or omission of one of the enumerated construction-related activities. Paschen Contractors, 353 Ill. App. 3d at 636. Applying this principle to the instant case, we conclude that section 13\u2014 214(a) applies to plaintiffs action. Plaintiffs complaint is based upon a contract which deals with the design and construction of the Croghans\u2019 home.\nPlaintiff argues that the Illinois statutory limitations scheme is an \u201corganic whole\u201d that should be read together. Nevertheless, when two limitations periods apply to an action, the more specific statute is generally effective. DeMarco, 341 Ill. App. 3d at 227. Here, section 13 \u2014 214(a) is more specific than section 13 \u2014 206 and, therefore, section 13 \u2014 214(a) is the controlling statute.\nPlaintiff also asserts that even if the four-year limitations period under section 13 \u2014 214(a) applied, section 13 \u2014 214(b) allows for a 10-year statute of limitations, so long as the action is brought within four years of the date that the party making the claim discovers such act or omission. Section 13 \u2014 214(b) provides:\n\u201cNo 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.\u201d 735 ILCS 5/13 \u2014 214(b) (West 2006).\nContrary to plaintiff\u2019s assertion, subsection (a) of section 13 \u2014 214 is the limitations portion of the statute; whereas, subsection (b) of section 13 \u2014 214 is commonly known as the repose portion of the statute. See Ryan v. Commonwealth Edison Co., 381 Ill. App. 3d 877, 879 (2008); Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 194 (1992).\nAs previously stated, section 13 \u2014 214(a) provides that the statute of limitations begins to run \u201cfrom the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.\u201d 735 ILCS 5/13 \u2014 214(a) (West 2006). Plaintiff asserts that Article 9.3 of the contract has no impact on this language, which makes the discovery rule applicable to actions brought under section 13 \u2014 214(a). Defendant asserts that Article 9.3 precludes application of the discovery rule. While neither party cites Illinois case law regarding the application of a contractual provision that controls the accrual date of an action, \u201cit is well established that parties to a contract may agree upon a shortened contractual limitations period to replace a statute of limitations, as long as it is reasonable.\u201d Medrano v. Production Engineering Co., 332 Ill. App. 3d 562, 566 (2002).\nDefendant cites to other jurisdictions that have addressed the impact that Article 9.3 has on the accrual date of the applicable statute of limitations. In Gustine Uniontown Associates, Ltd. v. Anthony Crane Rental, Inc., 892 A.2d 830 (Pa. Super. 2006), the Pennsylvania court held that parties to a contract may lawfully control accrual dates and that the language of Article 9.3 of the AIA contract \u201cprecludes application of the discovery rule, indeed that is its obvious intent.\u201d Gustine, 892 A.2d at 836. The Gustine court rejected the plaintiffs argument that it would be manifestly unreasonable to preclude application of the discovery rule under Article 9.3 to an action, like the instant one, involving latent construction defects. Gustine, 892 A.2d at 836. The court noted that Article 9.3 did not shorten the statutory limitations period, but merely dictated when the statute of limitations was triggered. The court explained that the limitations period of four years remained intact, but simply started to run when the certificates were issued or upon substantial completion. Gustine, 892 A.2d at 836.\nIn Schultz v. Cooper, 134 S.W3d 618 (Ky. App. 2003), the Kentucky court held that the discovery rule was inapplicable because of the provision of the AIA contract (entitled Article 8.3 in that case) requiring that the limitations period of all claims arising out of the contract between the homeowner and architect commence upon substantial completion of the work or issuance of the final certificate for payment. Schultz, 134 S.W.3d at 620. The Schultz court also rejected the plaintiffs argument that the AIA contract provision establishing the date of accrual violated public policy. The court noted that Kentucky case law had long upheld the validity of contractual terms that deliberately depart from statutory limits and instead provide for shorter limitations periods. Schultz, 134 S.W.3d at 621. The court concluded that the abbreviated period of limitations provided under the AIA contract was reasonable and did not offend public policy. Schultz, 134 S.W3d at 621. In reaching this determination, the court relied on its previous determination in Old Mason\u2019s Home of Kentucky, Inc. v. Mitchell, 892 S.W.2d 304 (1995), in which the court upheld the same AIA contractual provision varying the rule of accrual. The Schultz court also cited other jurisdictions that have upheld the AIA contractual provision altering the normal accrual date for causes of action. See Harbor Court Associates v. Leo A. Daly Co., 179 F.3d 147 (4th Cir. 1999) (enforcing AIA contractual provision, entitled \u201cSection 11.3,\u201d which circumvented the discovery rule by fixing the accrual date of any action to the date that work on the project was substantially completed); see also College of Notre Dame of Maryland, Inc. v. Mora-bito Consultants, Inc., 152 Md. App. 158, 159, 752 A.2d 265, 271 (2000) (Article 9.3 of AIA contract \u201cspecifie[d] a clear date for accrual of a cause of action\u201d and was not governed by the discovery rule).\nSimilarly, we find that Article 9.3 of the AIA contract in this case controlled the accrual date of the applicable statute of limitations and precluded application of the discovery rule. When construing the language of a contract, this court\u2019s primary objective is to give effect to the intent possessed by the parties at the time they entered the agreement. Regency Commercial Associates, LLC v. Lopax, Inc., 373 Ill. App. 3d 270, 277 (2007). The agreement is to be interpreted as a whole and, when possible, effect and meaning must be given to every provision in the contract. Fidelity National Title Insurance Co. of New York v. Westhaven Properties Partnership, 386 Ill. App. 3d 201, 214 (2007). \u201c \u2018Where the terms of a contract are clear and unambiguous, they will be given their natural and ordinary meanings.\u2019 \u201d Fidelity National Title Insurance, 386 Ill. App. 3d 201, 214 (2007), quoting Thakral v. Mattran, 156 Ill. App. 3d 849, 854 (1987). In the absence of an ambiguity, the parties\u2019 intent is ascertained solely from the words of the contract itself, and this court will not interpret a contract in a manner that would nullify or render provisions meaningless or that is contrary to the plain and obvious meaning of the language used. Fidelity National Title Insurance, 386 Ill. App. 3d at 214.\nWhile plaintiff argues that Article 9.3 is ambiguous, we find that it is \u201cunambiguous and susceptible of only one meaning\u201d in that it \u201cspecifies a clear date for [the] accrual of a cause of action.\u201d College of Notre Dame of Maryland, 132 Md. App. at 169, 752 A.2d at 271. Article 9.3 clearly provides that the applicable statute of limitations began to run on the date of substantial completion or final payment. The parties agree that the home was built in 1997; therefore, the four-year statute of limitations under section 13 \u2014 214(a) began to run no later than December 31, 1997. Plaintiff did not file its complaint until September 9, 2005, at least three years after the statute of limitations had run. Accordingly, we find that the circuit court did not err in dismissing plaintiffs complaint as untimely.\nDefendant argues for the first time on appeal that the circuit court\u2019s dismissal should be affirmed where plaintiffs claims are not supported by the contract. However, this court need not consider this alternative argument.\nFor the above reasons, we affirm the circuit court\u2019s dismissal of plaintiffs complaint pursuant to section 2 \u2014 619(a)(5) of the Code.\nAffirmed.\nTHEIS and COLEMAN, JJ., concur.\nPlaintiff entered into a settlement agreement with defendant Hanson Roofing, Inc., and third-party defendant ET. Construction, Inc. Pursuant to that settlement agreement, the circuit court dismissed the portion of this case with respect to these parties on March 27, 2008.", "type": "majority", "author": "JUSTICE QUINN" } ], "attorneys": [ "Cozen O\u2019Connor, of Chicago (Larry R. Eaton, of counsel), for appellant.", "Stamos & Trueco, LLP, of Chicago (James J. Stamos, of counsel), for appellees." ], "corrections": "", "head_matter": "FEDERAL INSURANCE COMPANY, as Subrogee of Thomas Croghan, et al., Plaintiff-Appellant, v. KONSTANT ARCHITECTURE PLANNING, INC., et al., Defendants-Appellees (Hanson Roofing, Inc., Third-Party Plaintiff; P.T. Construction, Inc., Third-Party Defendant).\nFirst District (3rd Division)\nNo. 1 \u2014 08\u20140938\nOpinion filed February 11, 2009.\nCozen O\u2019Connor, of Chicago (Larry R. Eaton, of counsel), for appellant.\nStamos & Trueco, LLP, of Chicago (James J. Stamos, of counsel), for appellees." }, "file_name": "0122-01", "first_page_order": 138, "last_page_order": 144 }