On December 19, 2014, outgoing Illinois Governor Pat Quinn signed Public Act 098-1131 into law. The Act amends the Illinois construction statute of repose in a way that exposes architects and builders operating in Illinois to new and substantial liability.
The construction statute of repose provides that "[n]o 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." 735 ILCS 5/13-214(b). Before passage of the Act, section 214(b) applied without limitation, giving builders, architects and others involved in construction management a strong defense in any action arising more that ten years after completion of a building project.
The Act, passed at the behest of the influential trial bar, eliminates the section 214(b) defense in asbestos cases. It adds a new provision stating "[s]ubsection (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." 735 ILCS 5/13-214(f). In other words, the construction statute of repose no longer applies in asbestos actions.
The practical effect of the Act is that builders, architects, and others involved in construction management now face potentially substantial liability for projects completed decades ago. Generally speaking, the building industry began to phase asbestos out around 1972, when OSHA passed. Thus, until December 19, the construction industry had a viable statute of repose defense in certain asbestos actions. The Act changes that, and the industry–as well as its insurers–should prepare to defend itself against decades-old claims.
Author Jeffrey M. Schieber is an associate in Taft's Chicago office. He focuses his practice on commercial and products liability litigation and has substantial experience defending clients in asbestos litigation.