Village Loses Late-Filed Claim
Four-year Statute of Limitations
Applies Even if Architect
knew Structure sat on Peat
J.S. Riemer, Inc. sued the Village of Orland Hills when it did not get paid for excavation work on a community center. The Village brought Jack Barclay & Associates, the design firm hired by the Village for the job, into the case as a third-party defendant, but an appellate court held it was too late. The statute of limitations in Illinois for construction claims is four years and applies to claims against architects. 735 ILCS 5/13-214(a).
Barclay was hired in September 1999, under an AIA contract that included the standard “causes of action” Article 9.3. Causes of action between the parties would accrue and commence running no later than the date of “substantial completion,” or for errors or omissions occurring after substantial completion, on the date of issuance of the final certificate of payment.
The Village went after Barclay (and had not paid Riemer) because the building was erroneously constructed on peat, causing the concrete floor to sink into the ground under the weight of the structure. The community center was substantially completed on December 8, 2006, but the discovery of the peat subsurface problem was discovered afterwards. Riemer sued in January 2005; the Village counter-claimed on April 15, 2005. But it did not bring Barclay into the case until December 8, 2006.
The lower court threw out the claim against Barclay, and on appeal the Village argued that the architect was “equitably estopped” from raising the statute of limitations defense because Barclay had made misrepresentations that Riemer was the problem, not Barclay, which convinced the Village not to sue. A second argument: Barclay engaged in “fraudulent concealment” of the action, thereby tolling the four year deadline.
Although the appellate court refused to apply AIA contract Article 9.3 and rule that it precluded the equitable estoppel argument, the court rejected the Village’s theory. The facts showed that the Village knew at the time that Barclay was at least partly responsible for improper excavation, therefore it could not have been misled by misrepresentations. Barclay had improved inadequate excavation of the subsurface peat. The court also found that since Barclay did not take any affirmative steps to remedy the sinking floor, the Village had no remedial action by Barclay to rely upon.
Fraudulent concealment tolls statutes of limitation because the plaintiff is such a case was the victim of an intentional secreting of evidence. This second theory also went nowhere with the court of appeals because the Village knew or should have known within the four years that were running that the inadequate excavation was authorized by Barclay.
The irony is that Barclay, to avoid liability because of the statute of limitations, went on the record to show its error.