# West American Insurance v. Sal E. Lobianco & Son Co.

> Illinois Supreme Court · November 30, 1977 · 69 Ill. 2d 126

URL: https://www.frixlaw.com/law-library/cases/9742925

## Case

- **Full name:** WEST AMERICAN INSURANCE COMPANY Et Al. v. SAL E. LOBIANCO & SON COMPANY, INC., Et Al.; (James Patterman, Appellant, v. Aetna Life & Casualty Company, Appellee.)
- **Court:** Illinois Supreme Court
- **Decided:** November 30, 1977
- **Citations:** 69 Ill. 2d 126; 12 Ill. Dec. 893; 370 N.E.2d 804; 1977 Ill. LEXIS 416
- **Precedential status:** Published
- **Opinion:** Dissent by Ryan
- **Judges:** Dooley, Ryan
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9742925

## Opinion text

MR. JUSTICE RYAN, dissenting:
I must respectfully dissent from the opinion of my colleagues. Not only do I disagree with the conclusion that the cause of action accrued when the house caught on fire but I also fail to see why the opinion failed to come to grips with what I conceive to be the very heart of this case, that is, whether the “discovery rule” should be applied under these circumstances.
Instead of confronting this issue the opinion seems to accommodate two different causes of action arising from the negligent construction of the fireplace. One cause of action would arise in favor of an origianl owner who had contracted with the defendant for the construction of the fireplace. The appellate courts of this State have many times held that in such cases the injury or damage which the majority opinion holds necessary to create the cause of action is completed when the defective structure is constructed and that subsequent consequences flowing therefrom, such as the fire in this case, are relevant only as to the question of damages. (Simoniz Co. v. J. Emil Anderson & Sons, Inc., 81 Ill. App. 2d 428 ; Board of Education v. Joseph J. Duffy Co., 97 Ill. App. 2d 158 ; Sabath v. Morris Handler Co., 102 Ill. App. 2d 218 ; Wilson v. White Motor Corp., 118 Ill. App. 2d 436 ; Board of Education v. Perkins & Will Partnership, 119 Ill. App. 2d 196 .) In Coumoulas v. Service Gas, Inc., 10 Ill. App. 3d 273 , a fire occurred in a building as a result of a negligently installed gas boiler. The court held that the injury occurred at the time of the negligent installation and that the plaintiff at that time would have been entitled to sue to recover damages to remedy the defective installation.
The opinion does not dispute the holding of these cases, but finds that the Snellbakers could not have maintained such an action before the fire because of a lack of privity or contractual relationship between them and the defendant. The opinion then creates another cause of action in favor of the Snellbakers which comes into existence at the time of the fire.
We are not here concerned with a personal injury to an individual. The question is not when did the injury to the Snellbakers accrue or when did the injury to the original owner accrue. This case involves a suit for damage to property, and it would appear to me that the injury or damage would accrue at a certain time regardless of who owned the property. This opinion seems to me to be completely inconsistent with the holdings of the many appellate court opinions I have cited.
I am also concerned that the majority found it necessary to create this two-tier arrangement by what it conceives to be the continued existence of the vestige of “privity.” Such a recognition lends substance to Dean Prosser’s statement concerning the liability of building contractors: “This was a field in which the ghost of Winterbottom v. Wright [10 M. & W. 109, 152 Eng. Rep. 402 (1842)] died very hard.” Prosser, Torts sec. 104, at 680 (4th ed. 1971).
I can foresee some anomolous consequences arising from the holding that the cause of action accrued when the fire occurred. Such a holding would seem to permit a series of actions by a series of owners with no possibility of ever terminating the exposure of the original contractor to liability for the construction of the defective fireplace. Would not this holding also permit the same owner to bring a series of actions based on a series of fires. If a new cause of action arises with each fire the statute of limitations will never bar recovery against the original wrongdoer. We are here considering only the bar of the statute of limitations and not the questions of proximate cause or contributory negligence.
It would appear to be more equitable to all parties affected if this court would hold, as the appellate courts have held on many occasions, that the injury to the property occurred when the defective construction was completed, and then alleviate any hardship by considering the “discovery rule.” See Auster v. Keck, 31 Ill. App. 3d 61 , rev’d. on other grounds, 63 Ill. 2d 485 ; E. J. Korvette v. Esko Roofing Co., 38 Ill. App. 3d 905 ; Society of Mount Carmel v. Fox, 31 Ill. App. 3d 1060 ; Golden Grain Macaroni Co. v. Klefstad Engineering Co. 45 Ill. App. 3d 77 .
A homeowner being aware of a defect in a fireplace should not be permitted to sit by and do nothing until his house burns and then 8 or 10 years after he acquired knowledge of the defect bring an action against the defendant who constructed the defective fireplace. Also, simply because of a lack of privity between the homeowner and the negligent contractor, he should not be required to wait for his house to bum or a roof to fall in before he can bring an action for damages to remedy a known defect.
The coal mining subsidence cases cited in the opinion are not helpful to the majority’s position. Those cases involve two distinct interests in land, the underlying mineral rights and the surface rights. The negligent acts occurred in the underlying mineral rights, and there was no damage to the surface until the land began to settle. Also, because of the nature of the operation, the first knowledge that an owner would have of a defective support would be the settling of the land. These cases seem to be an application of the principle that the statute of limitations begins to run when the plaintiff knows or should have known of his right of action, the “discovery rule.”
The opinion is also clearly in conflict with the very recent holding of this court in Auster v. Keck (1976), 63 Ill. 2d 485 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9742925. Public record. Not legal advice.