Find Legal Information

December 21, 2001

No. 2--00--1195

Plaintiff, Irene Beetle, as special administrator of theestate of her deceased husband, Robert Beetle, appeals the order ofthe circuit court of De Kalb County dismissing with prejudice hersecond amended complaint against defendants, Wal-Mart Associates,Inc., Wal-Mart Stores East, Inc., Wal-Mart Stores, Inc., and E.W.Howell Company, Inc. Plaintiff's complaint asserted a cause ofaction under the Wrongful Death Act (740 ILCS 180/0.01 et seq.(West 1998)) based on defendants' alleged negligence in theconstruction of a Wal-Mart store. The sole issue presented in thisappeal is whether the four-year statute of limitations period insection 13--214(a) of the Code of Civil Procedure (Code) (735 ILCS5/13--214(a) (West 1998)) or the two-year limitations period insection 2 of the Wrongful Death Act (Act) (740 ILCS 180/2 (West1998)) applies to plaintiff's cause of action. Because we findthat the Act's two-year statute of limitations applies, we affirmthe judgment of the circuit court.

BACKGROUND 

On April 27, 1999, plaintiff, acting as the specialadministrator of her deceased husband's estate, filed a complaintagainst defendants. According to the allegations in plaintiff'scomplaint, in September 1996, defendants were involved in theconstruction of a Wal-Mart store in De Kalb, Illinois. DefendantE.W. Howell Company, Inc. (Howell), a contractor on the project,hired Area Construction Trades, Inc. (Area Construction), toprovide the store with a roof. Plaintiff's decedent was employedas a roofer by Area Construction. On September 24, 1996, whileworking on the Wal-Mart project, plaintiff's decedent fell from thestructural steel framework of the building. As a result of theinjuries sustained in the fall, plaintiff's decedent died later thesame day.

Plaintiff's complaint asserted a cause of action under the Actbased on defendants' alleged negligence in the construction of theWal-Mart store. The Wal-Mart defendants and defendant Howell eachmoved to dismiss plaintiff's complaint pursuant to section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 1998)). Defendants urged the trial court to dismiss plaintiff's claimbecause she did not commence the action within two years after herhusband's death as required by section 2 of the Act (740 ILCS 180/2(West 1998)). In response to defendants' motions, plaintiffclaimed that the four-year limitations period for construction-related actions found in section 13--214(a) of the Code (735 ILCS5/13--214(a) (West 1998)) applied because it was more specific thanthe Act's two-year limitations period. On January 27, 2000, thetrial court granted defendants' motions to dismiss, but allowedplaintiff leave to file an amended complaint.

Plaintiff filed her amended complaint on February 15, 2000. The amended pleading alleged for the first time that it was notuntil July 1, 1997, that plaintiff discovered "factually specificinformation relative to the circumstances of decedent's fall" so asto alert her "to the need for further inquiries to determine if thecause of the decedent's injury was actionable at law." The amendedcomplaint did not allege the specific facts made available on July1, 1997. In response, the Wal-Mart defendants and defendant Howelleach filed a section 2--619 motion to dismiss. Defendants againasserted that plaintiff did not timely file her complaint undersection 2 of the Act. Defendants also claimed that plaintiff'sattempt to extend the limitations period by invoking the discoveryrule was improper. Defendants reasoned that plaintiff's decedent'sinjuries were the result of a sudden and traumatic event and, assuch, the cause of action accrued at the time the injuriesoccurred. On May 4, 2000, the trial court granted defendants'motions and dismissed plaintiff's amended complaint. The courtalso found that the discovery rule was not applicable to the case. Nevertheless, the court granted plaintiff leave to file a secondamended complaint.

Plaintiff filed her second amended complaint on June 21, 2000. The second amended complaint stated that at no time prior to July1, 1997, did plaintiff "have facts sufficient to know or havereason to know that a third party may have negligently caused [herhusband's] death." Plaintiff added that on or about July 1, 1997,she spoke over the telephone to a previously unavailable witnessfrom the construction site who possessed factually specificinformation relative to the circumstances of decedent's fall. Plaintiff, however, did not disclose the substance of herconversation with the undisclosed witness. Defendants filed ajoint section 2--619 motion to dismiss on the basis thatplaintiff's action was time-barred. On September 11, 2000, thetrial court granted defendants' motion and dismissed plaintiff'scomplaint with prejudice. In so ruling, the court reiterated thatthe discovery rule was not applicable. This appeal followed.

STANDARD OF REVIEW

The purpose of a motion to dismiss under section 2--619 is todispose of issues of law and easily proved issues of fact. Tatarav. Peterson Diving Service, 283 Ill. App. 3d 1031, 1037 (1996). Wemust accept all well-pleaded facts in the motion as well asreasonable inferences that can be drawn from those facts. Wolf v.Buesser, 279 Ill. App. 3d 217, 221 (1996). Our review of a trialcourt order granting a motion to dismiss is de novo. Greb v.Forest Preserve District of Cook County, 323 Ill. App. 3d 461, 463(2001).ANALYSIS Plaintiff argues that the trial court erred in applying thetwo-year statute of limitations found in section 2 of the Act (740ILCS 180/2 (West 1998)). According to plaintiff, the four-yearstatute of limitations found in section 13--214(a) of the Code (735ILCS 5/13--214(a) (West 1998)) applies to her cause of action. Plaintiff notes that her husband was killed in a construction-related accident and that section 13--214 addresses the limitationsperiod for construction-related actions. Thus, she reasons thatthe "specific" statute of limitation found in section 13--214should prevail over the "general" statute of limitations found insection 2 of the Act.

The issue raised in this case is one of statutoryconstruction. The primary rule of statutory construction is toascertain and give effect to the intent of the legislature. Peoplev. Owens, 323 Ill. App. 3d 222, 228 (2001). Plaintiff's argumentrests on the premise that either section 13--214(a) of the Code orsection 2 of the Act could apply to her cause of action. We do notdispute that, when two limitations periods are applicable to aparticular action, the more specific statute generally applies. See Tosado v. Miller, 188 Ill. 2d 186, 191 (1999); Roark v.Macoupin Creek District, 316 Ill. App. 3d 835, 842 (2000). However, where there is an alleged conflict between two statutes,a court has a duty to interpret the statutes in a manner thatavoids an inconsistency and gives effect to both statutes, wheresuch an interpretation is reasonably possible. McNamee v.Federated Equipment & Supply Co., 181 Ill. 2d 415, 427 (1998). Wedetermine that plaintiff's argument is based on a misunderstandingof the function of the Act and its interplay with the limitationsperiod found in section 13--214(a) of the Code.

Essentially, plaintiff attempts to treat her wrongful deathcomplaint as if it were a claim under the Survival Act (755 ILCS5/27--6 (West 1998)). However, the purposes of the two statutesare different. The Survival Act allows a decedent's survivors torecover damages for injuries suffered by the decedent prior todeath. Wyness v. Armstrong World Industries, Inc., 131 Ill. 2d403, 410 (1989). However, plaintiff's complaint is one forwrongful death. A wrongful death action allows a recovery fordamages because of the loss of the deceased. Wyness, 131 Ill. 2dat 410. In other words, the purpose of the Act is to compensatethe surviving spouse and next of kin for the pecuniary lossessustained due to the decedent's death. Mio v. Alberto-Culver Co.,306 Ill. App. 3d 822, 825 (1999).

Also insightful to our analysis is an examination of thehistory of the Act. A cause of action for wrongful death did notexist at common law. Rallo v. Crossroads Clinic, Inc., 206 Ill.App. 3d 676, 680 (1990). In adopting the Act, the General Assemblycreated a separate and independent cause of action for damagesarising from a decedent's wrongful death. Mio, 306 Ill. App. 3d at825; see also Wyness, 131 Ill. 2d at 413 (noting that the Actcreated a new cause of action). As a creature of legislativeenactment, the Act itself is the source for determining who may sueand under what conditions, and the Act must be strictly construed. Forthenberry v. Franciscan Sisters Health Care Corp., 156 Ill. App.3d 634, 636 (1987).

Section 1 of the Act provides in relevant part:

"Whenever the death of a person shall be caused bywrongful act, neglect or default, and the act, neglect ordefault is such as would, if death had not ensued, haveentitled the party injured to maintain an action and recoverdamages in respect thereof, then and in every such case theperson who or company or corporation which would have beenliable if death had not ensued, shall be liable to an actionfor damages, notwithstanding the death of the person injured,and although the death shall have been caused under suchcircumstances as amount in law to felony." 740 ILCS 180/1(West 1998).

Illinois courts interpreting the Act have long found that awrongful death action will lie only where the deceased had a claimthat was not time-barred on or before his death. Mooney v. City ofChicago, 239 Ill. 414, 423 (1909); O'Brien v. O'Donoghue, 292 Ill.App. 3d 699, 703 (1997); Kessinger v. Grefco, Inc., 251 Ill. App.3d 980, 985 (1993); Wolfe v. Westlake Community Hospital, 173 Ill.App. 3d 608, 612 (1988); Fountas v. Breed, 118 Ill. App. 3d 669,674 (1983). Once it is determined that the decedent's cause ofaction was not time-barred, section 2 of the Act governs the timewithin which a wrongful death action may be brought. Section 2 ofthe Act provides that "[e]very *** action shall be commenced within2 years after the death of such person." 740 ILCS 180/2 (West1998). Since the precipitating injury in a wrongful death actionis the death (Wyness, 131 Ill. 2d at 414-15), section 2 of the Actprovides a plaintiff with a two-year statute of limitations thatbegins to run on the date of the decedent's death (Wolfe, 173 Ill.App. 3d at 612; Fountas, 118 Ill. App. 3d at 674 (noting that thecontrolling date in wrongful death actions is the date of death)). Our supreme court has determined that the requirement that aplaintiff file his or her action within two years is a conditionprecedent to the filing of a wrongful death action. Pasquale v.Speed Products Engineering, 166 Ill. 2d 337, 361 (1995);Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 225(1938).

In light of the foregoing discussion, we find that there is areasonable interpretation of the statutes involved that avoids aninconsistency and gives effect to both statutes. Plaintiff's causeof action is based on the Act. As such, the only limitationsperiod applicable to her claim is the two-year statute oflimitations period found in section 2 of the Act. Thus, plaintiffhad two years from the date of her husband's death to file awrongful death action provided that plaintiff's decedent had aclaim that was not time-barred at the time of his death. Forpurposes of determining whether plaintiff's decedent had a claimthat was time-barred at the time of his death, we use thelimitations period found in section 13--214(a), which applies toconstruction-related actions. In other words, section 13--214(a)of the Code applied to plaintiff's decedent to the extent that hecould have filed an action against defendants during his lifetime.In this case, plaintiff's decedent died on the same day that hesustained his injuries. Thus, it is evident that plaintiff'sdecedent had a claim that was not time-barred on the date of hisdeath. Since plaintiff did not commence her wrongful death actionwithin two years after her husband's death, it was time-barred.

We note that our view of the interplay between section 13--214(a) of the Code and section 2 of the Act gives effect to the aimof both statutory provisions. It recognizes the legislature'sintent to protect persons involved in the design and constructionof buildings from potentially unlimited liability (see La SalleNational Bank v. Edward M. Cohon & Associates, Ltd., 177 Ill. App.3d 464, 469 (1988)) while also allowing a reasonable time for asurviving spouse or next of kin to bring an action for thepecuniary losses sustained due to the decedent's death (Mio, 306Ill. App. 3d at 825).

Nevertheless, in support of her position, plaintiff citesseveral cases in which courts have applied the construction statuteof repose (735 ILCS 5/13--214(b) (West 1998)) to wrongful deathactions. See, e.g., Herriott v. Allied Signal, Inc., 998 F.2d 487,491 (7th Cir. 1993) (holding wrongful death action barred by 10-year construction statute of repose); Risch v. Paul J. Krez Co.,287 Ill. App. 3d 194, 198-99 (1997) (same); O'Brien v. City ofChicago, 285 Ill. App. 3d 864, 870 (1996) (same). Plaintiffreasons that subsections (a) and (b) of section 13--214 should beconstrued together and that these cases support her argument thatwrongful death actions fall within the purview of section 13--214(a). We find the cases cited by plaintiff of littleprecedential value. In none of the cases cited by plaintiff wasthe reviewing court asked to decide whether the constructionstatute of repose governed over the Act's two-year statute oflimitations. In fact, none of these cases cite to or mention theAct's two-year limitations period.

We are also unpersuaded by plaintiff's reliance on casescomparing the limitations period in section 13--214(a) of the Codewith the limitations period found in other statutory provisions ofthe Code. None of those cases addressed the role of the Act'slimitations period. See, e.g., Hernon v. E.W. CorriganConstruction Co., 149 Ill. 2d 190, 196 (1992) (holding that thelimitations period in section 13--214(a) takes precedence over thelimitations period for personal injuries found in section 13--202of the Code); Tatara, 283 Ill. App. 3d at 1038 (same); Zimmer v.Village of Willowbrook, 242 Ill. App. 3d 437, 443, 446-47 (1993)(finding that (1) in suit against municipality, limitations periodfor construction-related actions found in section 13--214(a) of theCode applies over limitations period found in section 8--101 of theLocal Governmental and Governmental Employees Tort Immunity Act(Ill. Rev. Stat. 1991, ch. 85, par. 8--101) because former statutewas enacted after latter provision; and (2) section 13--214(a), asa specific statutory provision, takes precedence over thelimitations period for certain actions found in section 13--205 ofthe Code); American National Bank & Trust Co. of Chicago v.Booth/Hansen Associates, Ltd., 186 Ill. App. 3d 865, 867-69 (1989)(holding that the then two-year statute of limitations forconstruction-related actions found in section 13--214(a) of theCode applies over the five-year statute of limitations period forcertain actions found in section 13--205 of the Code); CommonwealthEdison Co. v. Walsh Construction Co., 177 Ill. App. 3d 373, 379(1988) (same); La Salle National Bank, 177 Ill. App. 3d at 473(holding that limitations period in section 13--214(a) of the Codeapplies over limitations period for contribution actions found insection 13--204 of the Code because former provision is morespecific). But see Antunes v. Sookhakitch, 181 Ill. App. 3d 621,628 (1989), aff'd on other grounds, 146 Ill. 2d 477 (1992) (holdingthat statute of limitations for contribution actions found insection 13--204 of the Code applies over limitations period formalpractice actions found in section 13--212 of the Code; where theplaintiff's complaint was based solely on Contribution Act (Ill.Rev. Stat. 1985, ch. 70, par. 301 et seq.), section 13--204 is morespecific than section 13--212).

Plaintiff also finds support for her position in casesinvolving the interplay between the limitations period relating tomedical malpractice actions (735 ILCS 5/13--212(a) (West 1998)) andthe limitations period in section 2 of the Act. For instance, inDurham v. Michael Reese Hospital, 254 Ill. App. 3d 492, 495 (1993),the plaintiff filed a wrongful death action predicated on medicalmalpractice within two years of her husband's death. The trialcourt dismissed the action as untimely. The reviewing courtaffirmed, holding that the four-year medical malpractice statute ofrepose barred the plaintiff's action because it was filed more thanfour years after the date of the alleged negligent treatment. Seealso Limer v. Lyman, 220 Ill. App. 3d 1036, 1043 (1991) (concludingthat medical malpractice statute of repose found in section 13--212(a) of the Code operated to bar the plaintiff's wrongful deathaction); Wolfe v. Westlake Community Hospital, 173 Ill. App. 3d608, 612 (1988) (finding that the plaintiff had two years from thedate of her husband's death to file her wrongful death claimprovided that two-year limitations period did not exceed four-yearmedical malpractice statute of repose).

However, we do not agree that this line of cases supportsplaintiff's contention that the limitations period in section 13--214(a) prevails over the limitations period in section 2 of theAct. Notably, plaintiff's reliance on these cases is misplacedbecause the language of section 13--212(a) is fundamentallydifferent from the language the legislature used in enactingsection 13--214(a) of the Code.

Section 13--214(a) provides, in pertinent part:

"Actions based upon tort, contract or otherwise againstany person for an act or omission of such person in thedesign, planning, supervision, observation or management ofconstruction, or construction of an improvement to realproperty shall be commenced within 4 years from the time theperson bringing an action, or his or her privity, knew orshould reasonably have known of such act or omission." 735ILCS 5/13--214(a) (West 1998).

Section 13--212(a) states:

"[N]o action for damages for injury or death against anyphysician *** or hospital *** whether based upon tort, orbreach of contract, or otherwise, *** shall be brought morethan 2 years after the date on which the claimant knew, orthrough the use of reasonable diligence should have known, orreceived notice in writing of the existence of the injury ordeath for which damages are sought in the action, whichever ofsuch date occurs first, but in no event shall such action bebrought more than 4 years after the date on which occurred theact or omission or occurrence alleged in such action to havebeen the cause of such injury or death." (Emphasis added.) 735 ILCS 5/13--212(a) (West 1998).

The language used in section 13--212(a) of the Code and section 13--214(a) of the Code contains some similarities. For instance, bothapply to actions based in tort, contract, or "otherwise." Plaintiff urges that her suit is one for "tort, contract orotherwise" and that we should therefore apply the limitationsperiod in section 13--214(a) of the Code. However, plaintiff'sposition would require us to disregard the fundamental rule ofstatutory construction that no word or phrase should be renderedsuperfluous or meaningless. See Kraft, Inc. v. Edgar, 138 Ill. 2d178, 189 (1990). Plaintiff ignores the fact that, unlike section13--212(a), section 13--214(a) does not expressly refer to damagesresulting in death. Thus, we reiterate that the limitations periodin section 13--214(a) does not apply to actions brought pursuant tothe Act.

Alternatively, plaintiff claims that she filed her complaintwithin two years of the time she discovered that defendants'negligent conduct could or might have caused decedent's death.Thus, plaintiff argues that, even if the Act's two-year statute oflimitation applies, the discovery rule acts to preserve her causeof action. We disagree.

The application of the discovery rule postpones thecommencement of the relevant statute of limitations until aninjured party knows or reasonably should know that he has beeninjured and that his injury was wrongfully caused. Golla v.General Motors Corp., 167 Ill. 2d 353, 361 (1995). The term"wrongfully caused" refers to the point in time in which "theinjured person becomes possessed of sufficient informationconcerning his injury and its cause to put a reasonable person oninquiry to determine whether actionable conduct is involved." KnoxCollege v. Celotex Corp., 88 Ill. 2d 407, 416 (1981).

Historically, the limitations period for bringing a wrongfuldeath action has been regarded as a condition precedent, notmodified or affected by the general statute of limitations. Furev. Sherman Hospital, 64 Ill. App. 3d 259, 264 (1978). However, asplaintiff correctly notes, the discovery rule has been applied towrongful death actions under certain circumstances. See, e.g.,Coleman v. Hinsdale Emergency Medical Corp., 108 Ill. App. 3d 525,529 (1982) (holding that discovery rule applied to wrongful deathaction predicated on medical malpractice); Fure, 64 Ill. App. 3d259 (same). Nevertheless, our supreme court has stated that, wherean individual's injuries are caused by a sudden traumatic event,the cause of action accrues and the statute of limitations beginsto run when the injury occurred. Golla, 167 Ill. 2d at 362. Atraumatic injury is one in which the damage is caused by externalviolence or in which the injury is immediate and caused by anexternal force. Clark v. Galen Hospital Illinois, Inc., 322 Ill.App. 3d 64, 69 (2001). In contrast, where the injury is anaggravation of a physical problem that may naturally develop,absent negligent causes, neither its existence nor potentialwrongful cause may immediately be known. Janetis v. Christensen,200 Ill. App. 3d 581, 586-87 (1990). In the latter situation, itis considered unfair to bar a negligently injured individual'scause of action before he has a chance to discover that it exists. Clark, 322 Ill. App. 3d at 70.

In this case, plaintiff's decedent's injury occurred onSeptember 24, 1996, when he fell from the structural steelframework of the Wal-Mart store. Thus, the type of injury that ledto the death of plaintiff's decedent was not the aggravation of aphysical problem that may naturally develop absent negligentcauses. Nor was plaintiff's decedent's injury latent. Rather, theinjury was immediate and caused by an external force. As such,plaintiff's decedent's injury qualifies as the type of "suddentraumatic event" contemplated by Golla. Accordingly, thelimitations period in this case began to run on September 24, 1996.

Plaintiff claims that Golla is distinguishable on the basisthat the plaintiff in that case was the injured party. Plaintiffargues that, as the wife of the injured party, it is reasonable toexpect that it would take her a longer time to discover if a causeof action existed. We find plaintiff's argument unpersuasive. Plaintiff's decedent died after falling from a building. Given thecircumstances of plaintiff's death, we find that as of September24, 1996, plaintiff possessed sufficient information to put her onnotice to determine whether actionable conduct was involved. SeeKnox, 88 Ill. 2d at 416.

We acknowledge that, in Praznik v. Sport Aero, Inc., 42 Ill.App. 3d 330 (1976), the reviewing court applied the discovery ruleto a wrongful death case arising from a "sudden traumatic"accident. However, Praznik is factually distinguishable. In thatcase, the plaintiff's decedent died in an airplane crash. Althoughthe crash apparently occurred on March 29, 1969, the date of thedecedent's disappearance, it was not until November 1971 that theactual wreckage of the aircraft was discovered. The plaintifffiled her original complaint on March 29, 1971, naming Sport Aeroas the defendant. An amended complaint, filed on May 5, 1972,added defendant Fey. In response, Fey pleaded an affirmativedefense. He claimed that plaintiff's action was barred by the two-year limitations period for wrongful death claims. The trial courtstruck Fey's affirmative defense and entered an order certifyingthe issue for interlocutory review. The appellate court allowedleave to appeal.

On appeal, Fey argued that the Act's two-year statute oflimitations period applied to bar the plaintiff's wrongful deathaction. The plaintiff contended that her cause of action did notaccrue until November 1971, when the wreckage of the aircraft wasdiscovered. Plaintiff reasoned that it was not until that timethat she knew with any certainty of the decedent's death and thecircumstances surrounding the death. The reviewing court concededthat, as a general matter, because the Act is a creature ofstatute, the discovery rule may not be invoked to save a cause ofaction that is time-barred. Praznik, 42 Ill. App. 3d at 335. Nevertheless, the court found it prudent to create an exception tothe general rule where the time and circumstances of anindividual's death are unknown. Praznik, 42 Ill. App. 3d at 335. The court determined that until the aircraft wreckage wasdiscovered there was a possibility, however remote, that thedecedent was still alive. Praznik, 42 Ill. App. 3d at 336. Theholding in Praznik is limited to those cases in which the time ofan individual's death is unknown. In the instant case, it isundisputed that plaintiff was aware of her husband's death on thedate it occurred.

CONCLUSION

In short, we conclude that, because plaintiff failed to fileher wrongful death action within two years after her husband'sdeath, her claim is time-barred. Moreover, we determine that thediscovery rule does not preserve plaintiff's cause of action. Accordingly, we affirm the judgment of the circuit court of De KalbCounty.

Affirmed.

HUTCHINSON, P.J., concurs.

JUSTICE BOWMAN, dissenting:

I respectfully dissent.

Section 13--214(a) of the Code of Civil Procedure (Code) (735ILCS 5/13--214(a) (West 1998)) provides that "actions based upontort, contract or otherwise against any person for an act oromission of such person in the design, planning, supervision,observation or management of construction, or construction of animprovement to real property shall be commenced within 4 years fromthe time the person bringing an action, or his or her privity, knewor should reasonably have known of such act or omission." (Emphasis added.) Plaintiff's action was commenced within thefour-year limitations period.

Plaintiff argues that her wrongful death suit is one for"tort, contract or otherwise" and that, therefore, the four-yearperiod of limitations in section 13--214(a) of the Code shouldapply. I agree.

In Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450(1990), our supreme court interpreted the phrase "or otherwise"contained in section 13--212(a) of the Code (Ill. Rev. Stat. 1987,ch. 110, par. 13--212(a)), which is the medical malpractice statuteof repose. The court stated:

"The inclusion of the term 'or otherwise' following morerestrictive language in the statute seems to us to indicatethat the legislature intended the term to be all-inclusive. We believe that the term demonstrates the General Assembly'sdesire at the time it originally enacted the statute to limita physician's exposure to liability for damages for injury ordeath arising out of patient care under all theories ofliability, whether then existing or not." Hayes, 136 Ill. 2dat 458-59.

In Carlson v. Moline Board of Education, School District No.40, 231 Ill. App. 3d 493 (1992), the court adopted the supremecourt's reasoning in Hayes and concluded that the two-year statuteof limitations (subsequently extended to four years) in section 13--214(a) of the Code barred the third-party contribution action. Relying on Hayes, the court held that, when describing the type ofactions to which the limitations provision of section 13--214(a)applies, the term "otherwise" had the same meaning in the statuteof limitations provision as it did in the medical statute of reposeprovision interpreted in Hayes. Carlson, 231 Ill. App. 3d at 496. In other words, the term was all-inclusive. The court concludedthat the limitations provision of section 13--214(a) applied tocontribution actions based on "an act or omission in the design,planning, supervision, observation or management of construction,or construction of an improvement to real property." Carlson, 231Ill. App. 3d at 497; see also La Salle National Bank v. Edward M.Cohon & Associates, Ltd., 177 Ill. App. 3d 464, 472 (1988), (the"otherwise" language of the limitations provision set forth insection 13--214(a) is broad and includes an action forcontribution). I also believe that the term "otherwise" in section13--214(a) is intended to be all-inclusive. In my view, the"otherwise" language of the provision applies to any action,including a wrongful death action, based on an act or omission inthe design, planning, supervision, observation or management ofconstruction, or construction of an improvement to real property.

Although my research has revealed no Illinois cases exactly onpoint, it would appear that actions under the Wrongful Death Act(740 ILCS 180/0.01 et seq. (West 1998)) would also be encompassedby the term "tort" set forth in section 13--214(a) of the Code. A"tort" is "a wrongful act for which a civil action will lie exceptone involving a breach of contract: a civil wrong independent of acontract." Webster's Third New International Dictionary 2413(1986); see also Black's Law Dictionary 1496 (7th ed. 1999). Tomaintain a claim under the Wrongful Death Act (Act), a plaintiffmust demonstrate that defendant owed a duty to decedent; thatdefendant breached that duty; that the breach of duty proximatelycaused decedent's death; and that pecuniary damages arose therefromto persons designated under the Act. Leavitt v. Farwell Tower,Ltd. Partnership, 252 Ill. App. 3d 260, 264 (1993). A wrongfuldeath action requires proof of the same elements--duty, breach ofthe duty, proximate cause and damages--as a common-law negligenceaction, a classic action in tort.

Plaintiff also contends that section 3--214(a) of the Codetakes precedence over section 2 of the Wrongful Death Act (740 ILCS180/2 (West 1998)) because section 13--214(a) is more specificthan section 2 of the Act. I agree. The Wrongful Death Actapplies generally to actions arising from the death of a decedent,regardless of the type of activity from which the cause of actionarose. On the other hand, section 13--214(a) of the Code "has beencalled a 'special statute of limitations' [citation] and a'specific' statute of limitations [citation] and specificallyapplies to actions arising out of certain conduct, i.e., thatrelated to construction activities." La Salle National Bank, 177Ill. App. 3d at 473. When two limitations periods are applicableto a particular action, the more specific statute generallyapplies. Tosado v. Miller, 188 Ill. 2d 186, 191 (1999).

Because section 13--214(a) of the Code is more specific thansection 2 of the Wrongful Death Act and because I believe awrongful death action is one for "tort, contract or otherwise," Iwould find that the four-year limitations period set forth insection 13--214(a) applies to plaintiff's cause of action. Asplaintiff brought her action within the applicable four-yearperiod, I would reverse the circuit court's order dismissing hercomplaint as time-barred.