Expansion of Statute of Limitations in Illinois under 15th Place Condominium Association v. South Campus Development Team, LLC
By Daniel E. Raymond and Jesse G. Shallcross, K&L Gates, Chicago
General contractors and developers beware—suits for breach of express indemnity now have a longer shelf life in Illinois.
In 15th Place Condominium Association v. South Campus Development Team, LLC, the Appellate Court for First District of Illinois held that a claim for breach of an express indemnity clause contained in a construction contract is subject to a ten-year statute of limitations instead of four. The subject of the dispute was a contract between 15th Place Condominium Association (the “Association”) and South Campus Development Team (the “Developer”) to develop two condominium towers (the “Project”). The Developer contracted with Linn-Mathes, Inc. (the “General Contractor”), who would act as general contractor. The contract between the Developer and the General Contractor included an express indemnity clause and a cause of action accrual provision. By 2003 and 2004, the Project was substantially completed, and, in 2005, the Developer turned over the property to the Association.
Unhappy with the Project, the Association sued the Developer for breach of the implied warranty of fitness and habitability, breach of fiduciary duty, and negligence in 2008. In turn, in 2011, the Developer filed a third-party complaint against the General Contractor for breach of express indemnity, among other claims. At the trial level, the General Contractor successfully argued that the Developer’s claim for breach of express indemnity was untimely and barred by the four-year statute of limitations for construction-related claims.
The appellate court, however, disagreed. Relying on the Illinois Supreme Court’s ruling in Travelers Casualty & Surety Co. v. Bowman, the court overturned the trial court and applied the ten-year statute of limitations for contract claims. In Travelers, the Illinois Supreme Court instructed that when determining whether to apply the ten-year statute of limitations for contract claims or the four-year statute of limitations for construction-related claims, courts must look to the nature of the claim—meaning whether the claims emanates from construction-related activity or a contractual obligation. Applying this test to the express indemnity clause at issue, the court determined that the nature of the claim was for failure to indemnify, a contractual obligation, not from any “act or omission relating to construction activity.” Thus, the ten-year statute of limitations applied and the Developer’s claim for breach of express indemnity was not barred by the passage of time.