Illinois Construction Law Blog : Illinois Construction Lawyer & Attorney : Foran Glennon Palandech & Ponzi Law Firm : Chicago IL

For those of you faced with any attempt by a plaintiff to claim that the implied warranty of habitability can be extended to a design professional, relief has been afforded.   This recent order authored by The Honorable Dennis J. Burke offers some profound insight regarding such a fallible argument.

In the opinion, Judge Burke addresses the contention that an exception to the judicially created doctrine of the implied warranty of habitability can involve design professionals. The exception, briefly stated, is that the case of Minton v. Richards, 116 Ill.App.3d 852, allowed a cause of action against a subcontractor who built part of the structure once, when the builder-developer was insolvent, and that this should create an exception which would allow for a suit against design professionals when no relief can be had against a builder-developer.

The opinion obliterates the argument and correctly holds that the doctrine cannot be extended in such a manner.

Obviously, other courts may disagree with the conclusion but they are unlikely to given the unassailable reasoning.

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In Ambrosia Land Investments, LLC, v. Peabody Coal Company (7^th Circ., Doc. No. 07-1945) the Seventh Circuit tackled the fascinating question of whether or not the Illinois Construction Statute of Repose applied to a coal mine.  While we may not think this would be interesting to everyone, the construction statute of repose is actually a fun topic, and the 7^th Circuit did a great job of covering the topic.

Along with a poignant discussion of the relevant Illinois case law regarding the statute, the court held that a coal mine on a piece of property would constitute an "improvement to real property for statute of repose purposes."  The court went on to find that the former mine owner was being sued as an owner of the mine and not as a party engaging in construction-related activities, so the plaintiff's case for damages to its property from mine subsidence did not fall under the activities covered by the statute.

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In Cincinnati Insurance Company v. Taylor Morley, Inc., (Doc. No. 06-cv-1035-MJR, S.D. Il, 2008) the Southern District of Illinois has issued a coverage opinion reaffirming the substantive Illinois law.   Construction defects alleged by a buyer against a builder and claims by buyers against a builder for diminished property values because of the builders failure to fulfill its contract and construct a "championship golf course" around which their homes were to have been built, are not afforded coverage under a CGL policy. 

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