No. 1-13-1631 Fifth Division June 27, 2014 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) AMERICAN FAMILY MUTUAL INSURANCE ) COMPANY, as Subrogee of Michael P. McGrath, Jr., ) ) Plaintiff-Appellee, ) Appeal from the Circuit Court ) of Cook County. v. ) ) No. 12 L 11528 PATRICK PLUNKETT, Individually; and PATRICK ) PLUNKETT ARCHITECTURAL DESIGN, LTD., ) The Honorable ) Moira S. Johnson, Defendants-Appellants ) Judge Presiding. ) (Northern Heritage Builders, L.L.C., ) Defendant). ) ) ______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

¶1 The instant interlocutory appeal arises from the attempts of plaintiff American Family

Mutual Insurance Company (American Family) to file suit against the defendant builders1

and architects in its capacity as subrogee of Michael P. McGrath, Jr., the owner of a home

designed and built by defendants. McGrath filed a claim with American Family, his insurer,

1 A default judgment was entered against Northern Heritage Builders on May 30, 2013, and it is not a party to the instant appeal. Any reference to “defendants” accordingly refers only to the defendants who remain parties on appeal. No. 1-13-1631

after his home sustained water damage, and, after a lawsuit in federal court, American

Family settled the claim for approximately $1.1 million; after paying McGrath, American

Family asked McGrath to execute a written assignment to the extent of its payment, but

McGrath failed to respond.

¶2 American Family then filed suit against defendants for their negligence in causing the

damage. Since it was not in possession of an executed written assignment, American Family

filed suit in its capacity as McGrath’s equitable subrogee. While that case was pending,

American Family filed suit against McGrath for specific performance in order to obtain his

executed written assignment. American Family’s suit against defendants was dismissed with

prejudice on a combined motion to dismiss under section 2-619.1 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619.1 (West 2008)), with the trial court finding that

American Family was required to have a written assignment in order to pursue a subrogation

claim. Shortly thereafter, American Family’s suit against McGrath was dismissed on a

section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2008)), with the trial court finding

that American Family had released its claim for an assignment by settling the federal lawsuit;

the court also found that the claim was barred by res judicata based on the dismissal of the

equitable subrogation suit against defendants.

¶3 American Family simultaneously appealed the dismissal of both suits, and the appellate

court affirmed the dismissal of the equitable subrogation claim, holding that American

Family had failed to perfect its rights of subrogation under the terms of the insurance policy.

American Family Mutual Insurance Co. v. Northern Heritage Builders, L.L.C.,

(2010). However, the appellate court reversed the dismissal of American

Family’s claim against McGrath and remanded the case. American Family Mutual Insurance

2 No. 1-13-1631

Co. v. McGrath, No. 1-10-1619 (2011) (unpublished order under Supreme Court Rule 23).

On remand, McGrath eventually tendered an executed assignment to American Family, and

the case was dismissed.

¶4 American Family then filed another lawsuit against defendants, this time as McGrath’s

contractual subrogee. Defendants filed a motion to dismiss, claiming that the suit was barred

by the statute of limitations. The trial court denied the motion to dismiss, finding that the

statute of limitations had been equitably tolled. Defendants then moved for a permissive

interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994), and the

trial court certified one question for review: “Is ‘equitable tolling’ a proper basis to deny

Plunkett’s and PPAD’s motion to dismiss based upon the statute of limitations found in 735

ILCS 5/13-214(b)?” We granted the petition for leave to appeal, and now answer the trial

court’s certified question in the negative.

¶5 BACKGROUND2

¶6 I. Federal Court Case

¶7 McGrath was the owner of a single-family home in Chicago that was designed and built

by defendants. The home was covered by an insurance policy issued by American Family.

On August 23, 2006, while the policy was in force, McGrath made an insurance claim for

water damage caused by alleged faulty design and construction of the home. American

Family denied the claim, and McGrath filed suit against American Family in the United

States District Court for the Northern District of Illinois (the federal court case). Summary

2 The background details of the numerous court proceedings leading to the instant appeal are helpful in understanding the parties’ arguments on appeal. However, many of the documents that provide such background are not included in the record on appeal. Thus, any gaps are filled in by relying on the statement of facts in our earlier decisions in American Family Mutual Insurance Co. v. Northern Heritage Builders, L.L.C.,

(2010), and American Family Mutual Insurance Co. v. McGrath, No. 1-10-1619 (2011) (unpublished order under Supreme Court Rule 23).

3 No. 1-13-1631

judgment was granted in McGrath’s favor on the issue of coverage, and the case proceeded to

a jury trial on the issue of damages. A jury returned a verdict in favor of McGrath, in the

amount of $1,130,680.16.

¶8 Subsequent to the verdict, on May 16, 2008, McGrath and American Family settled the

federal court case and executed a settlement agreement; the terms of the settlement

agreement did not contain an assignment to American Family of McGrath’s rights of

recovery against any negligent party by reason of the damage to his residence. American

Family paid McGrath $1,130,680.16.

¶9 On June 18, 2008, American Family requested an assignment of their rights of recovery

(subrogation) from McGrath to the extent of the $1,130,680.16 payment made by American

Family. McGrath did not respond to the request.

¶ 10 II. Equitable Subrogation Case

¶ 11 On May 20, 2008, American Family filed a complaint against defendants in the law

division of the circuit court of Cook County in its capacity as a subrogee of McGrath (the

equitable subrogation case). American Family alleged breach of contract in the defective

design of McGrath’s home and negligence in the construction of the home. On March 13,

2009, American Family filed its third amended complaint, claiming that it was an equitable

subrogee due to the payment it had made to McGrath.

¶ 12 On April 21, 2009, American Family sent another request for an assignment from

McGrath.

¶ 13 On May 13, 2009, defendants filed a combined motion to dismiss the complaint under

section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2008)). On August 3, 2009, the trial

court granted defendants’ combined motion to dismiss the complaint with prejudice.

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¶ 14 On December 22, 2009, the trial court denied American Family’s motion to reconsider,

finding that American Family’s right to subrogation was limited to contractual subrogation,

not equitable or common-law subrogation, due to the existence of a subrogation clause in the

insurance policy between American Family and McGrath. On January 14, 2010, American

Family filed a notice of appeal.

¶ 15 III. Specific Performance Case

¶ 16 While the equitable subrogation case was pending, American Family filed suit against

McGrath in the chancery division of the circuit court of Cook County (the specific

performance case). American Family’s one-count complaint alleged that McGrath was

contractually obligated to assign his subrogation rights to American Family, and sought

specific performance of the contract.

¶ 17 After the trial court dismissed the equitable subrogation case under section 2-619.1 of the

Code due to its finding that contractual subrogation was the only available basis for

subrogation, McGrath filed a motion to dismiss American Family’s complaint under section

2-619 of the Code (735 ILCS 5/2-619 (West 2008)), arguing that the complaint was barred

under res judicata and by the parties’ settlement agreement.

¶ 18 On May 11, 2010, the trial court granted McGrath’s section 2-619 motion to dismiss

American Family’s complaint for specific performance. The court found that the complaint

was barred by res judicata in light of the dismissal with prejudice of the equitable

subrogation complaint. Furthermore, the court held that American Family released any rights

to an assignment of subrogation rights when it entered into a release and settlement

agreement with McGrath concerning payment under the insurance policy. On June 2, 2010,

American Family filed a notice of appeal.

5 No. 1-13-1631

¶ 19 IV. Appeals of Equitable Subrogation and Specific Performance Cases

¶ 20 On October 12, 2010, the appellate court issued an opinion affirming the dismissal of the

equitable subrogation case, holding that any subrogation right American Family had was a

contractual one, arising from the insurance policy between American Family and McGrath,

and equitable subrogation was not available in light of the express contractual provision.

American Family Mutual Insurance Co. v. Northern Heritage Builders, L.L.C.,

(2010). Since there was no written assignment of McGrath’s rights, the appellate

court found that American Family failed to perfect its rights of subrogation under the terms

of the policy, and affirmed the dismissal of the complaint on that basis. Northern Heritage,

.

¶ 21 On March 14, 2011, the appellate court issued an unpublished order reversing the

dismissal of the complaint for specific performance, finding that American Family’s claims

were not barred by res judicata or by the settlement agreement and release. American Family

Mutual Insurance Co. v. McGrath, No. 1-10-1619 (2011) (unpublished order under Supreme

Court Rule 23).

¶ 22 V. Remand of Specific Performance Case

¶ 23 On remand, American Family again demanded that McGrath tender an executed

assignment. On October 31, 2011, McGrath executed a written assignment transferring his

interest in the claim against defendants to American Family, to the extent of American

Family’s payment to McGrath. However, American Family claims that it did not receive the

assignment until June 2012, after American Family filed a motion for summary judgment.

After receiving the assignment, the specific performance case was voluntarily dismissed.

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¶ 24 VI. Instant Case

¶ 25 On October 10, 2012, American Family filed a complaint against defendants in its

capacity as the contractual subrogee of McGrath. The complaint alleges that defendants

breached their contracts and an implied warranty of habitability with McGrath by preparing

design plans and constructing a house that contained defects, allowing moisture to build up

inside the house and causing damage. The complaint further alleges that McGrath became

aware of the defects in the work in July or August 2006. On January 2, 2013, American

Family filed an amended complaint, containing substantially the same allegations as the

original complaint.

¶ 26 On February 20, 2013, defendants filed a motion to dismiss the amended complaint

pursuant to section 2-619 of the Code, claiming that the action was barred by the statute of

limitations and by res judicata.

¶ 27 On April 25, 2013, the trial court denied defendants’ motion to dismiss on the basis that

equitable tolling applied to toll the statute of limitations. On May 14, 2013, the trial court

entered an order certifying the following question for review:

“Is ‘equitable tolling’ a proper basis to deny Plunkett’s and PPAD’s motion to

dismiss based upon the statute of limitations found in 735 ILCS 5/13-214(b)?”

Defendants filed a petition for leave to appeal pursuant to Rule 308 on May 28, 2013, and we

granted the petition on June 12, 2013.

¶ 28 ANALYSIS

¶ 29 Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994) provides a remedy of permissive

appeal from interlocutory orders where the trial court has deemed that they involve a

question of law as to which there is substantial ground for difference of opinion and where an

7 No. 1-13-1631

immediate appeal from the order may materially advance the ultimate termination of the

litigation. We apply a de novo standard of review to legal questions presented in an

interlocutory appeal brought pursuant to Rule 308. Simmons v. Homatas,

(2010). De novo consideration means we perform the same analysis that a trial judge would

perform. Khan v. BDO Seidman, LLP,

(2011). Additionally, we are

limited to the issues raised in the certified questions and will not go beyond those questions

to consider other matters. See Townsend v. Sears, Roebuck & Co.,

(2007) (“An interlocutory appeal pursuant to Supreme Court Rule 308 is ordinarily limited to

the question certified by the circuit court ***.”).

¶ 30 On appeal, we are asked to consider one question: whether the trial court properly

determined that equitable tolling applied to toll the statute of limitations in the instant case.

Defendants also ask us to consider whether res judicata applies to bar the instant claim.

However, we decline to consider this additional issue, which was not certified by the trial

court. It was not relied upon by the trial court in denying the motion to dismiss and it is not

necessary to the resolution of the question properly before us.

¶ 31 Turning to the certified question, the parties agree that the applicable statute of

limitations for American Family’s claims against defendants is the four-year statute of

limitations provided in section 13-214(b) of the Code (735 ILCS 5/13-214(b) (West 2008)),

and further agree that McGrath and American Family became aware of the water damage to

McGrath’s home in August 2006. Thus, as McGrath’s subrogee, American Family would

have been required to file suit on or before August 31, 2010. While American Family did file

suit as McGrath’s equitable subrogee in May 2008, well within the statute of limitations, that

suit was dismissed. American Family then filed the complaint in the case at bar in October

8 No. 1-13-1631

2012 as McGrath’s contractual subrogee. However, American Family argues that the instant

suit is not time-barred because the doctrine of equitable tolling applied to toll the statute of

limitations from December 22, 2009 – when American Family’s motion to reconsider the

dismissal of the equitable subrogation case was denied – until June 2012 – when McGrath

finally tendered the executed assignment to American Family, permitting it to file the instant

lawsuit in its capacity as McGrath’s contractual subrogee.

¶ 32 “Equitable tolling of a statute of limitations may be appropriate if the defendant has

actively misled the plaintiff, or if the plaintiff has been prevented from asserting his or her

rights in some extraordinary way, or if the plaintiff has mistakenly asserted his or her rights

in the wrong forum.” Clay v. Kuhl,

(2000) (citing Ciers v. O.L. Schmidt

Barge Lines, Inc.,

(1996)). “Extraordinary barriers include legal

disability, an irredeemable lack of information, or situations where the plaintiff could not

learn the identity of proper defendants through the exercise of due diligence.” Thede v.

Kapsas,

(2008) (citing Griffin v. Willoughby,

(2006)). “ ‘[E]quitable tolling, unlike equitable estoppel, applies even when the

defendant is faultless.’ ” Kaufmann v. Jersey Community Hospital,

(2009) (quoting Griffin,

).

¶ 33 While equitable tolling is recognized in Illinois, it is rarely applied. The supreme court

has applied it once, in Williams v. Board of Review,

(2011), a case in

which it applied federal law. Additionally, while neither party cites it, this court found the

doctrine applicable in Ralda-Sanden v. Sanden,

, a case in

which the plaintiff sought to file suit under the Illinois Parentage Act of 1984 (750 ILCS 45/1

et seq. (West 2010)). There, the plaintiff filed a complaint to establish paternity nearly two

9 No. 1-13-1631

years after the expiration of the statute of limitations period and the complaint was dismissed

under section 2-619 of the Code. Ralda-Sanden,

. On

appeal, the plaintiff argued that the statute of limitations period should be equitably tolled

because she had not discovered her putative father was alive until July 2011, three months

before she filed her complaint. Ralda-Sanden,

. The appellate

court agreed, noting that the uncontroverted affidavits of the plaintiff and her mother

established that the plaintiff’s mother had withheld information concerning the plaintiff’s

putative father due to his past violent behavior and threats to kill her and her family. Randa-

Sanden,

. Accordingly, the court found that the plaintiff was

prevented from asserting her rights in an extraordinary way and the statute of limitations

period should therefore be equitably tolled. Randa-Sanden,

.

¶ 34 In the case at bar, American Family argues that equitable tolling should apply to toll the

statute of limitations in its case because “American Family was extraordinarily prevented

from bringing its claim for contractual subrogation against the Plunkett Defendants because it

did not have such a claim until it received the Assignment, after this Court ruled that an

executed Assignment from the McGraths was the only available theory under which

American Family could sue the Plunkett Defendants in subrogation, and after this Court

separately determined that American Family was entitled to the Assignment from the

McGraths.” However, we do not find this argument persuasive.

¶ 35 There is no question that American Family diligently pursued its equitable subrogation

and specific performance cases, including seeking appeals before this court. Additionally, we

agree that American Family did not have a claim as McGrath’s contractual subrogee until

after the execution of the written assignment. However, the fact remains that American

10 No. 1-13-1631

Family’s problems are entirely based on American Family’s decision not to obtain an

executed assignment at the time it paid McGrath in settlement of the insurance claim, as was

its right pursuant to the insurance policy. Thus, as defendants point out, “any alleged damage

done to [American Family] is self-inflicted.”

¶ 36 Furthermore, it should have come as no surprise to American Family that an assignment

was required in order for it to be able to file suit in its capacity as McGrath’s subrogee. While

the appellate court decision in the equitable subrogation case “address[ed] the question left

unanswered by the supreme court in Schultz v. Gotlund,

, 173 *** (1990),

namely, the effect of an express contractual subrogation provision on a common law or

equitable subrogation theory of recovery” (Northern Heritage Builders,

), a number of appellate court cases had previously established that where the right of

subrogation is created by contract, the contract terms, rather than common law or equitable

principles, control. See, e.g., Benge v. State Farm Mutual Automobile Insurance Co.,

(1998) (“Where the right [to subrogation] is created by an enforceable

subrogation clause in a contract, the contract terms, rather than common law or equitable

principles, control.”); Capitol Indemnity Corp. v. Strike Zone, S.S.B.&B. Corp.,

(1995) (agreeing with prior case law that “if a subrogation clause is enforceable,

it is the contract terms, and not common law concepts of subrogation, which control”); In re

Estate of Scott,

(1991) (in considering a medical subrogation clause

in an insurance contract, noting that “if such a clause is enforceable, it is not common-law

concepts of subrogation but the contract terms that control”). Thus, since there was a

subrogation clause in the insurance policy, established law provided that the policy’s

contractual terms would apply, rather than common law or equitable principles.

11 No. 1-13-1631

Consequently, we do not find persuasive any argument that American Family could not have

known that the assignment would be required for it to be able to file suit against defendants.

¶ 37 The circumstances in the instant case are certainly unusual. However, we cannot find that

American Family was prevented from filing its lawsuit in an extraordinary way such that

equitable tolling should apply. See Clay,

. Instead, American Family was

only “prevented” from filing its lawsuit due to its own failure to obtain an executed

assignment at the time it paid McGrath. This is not the sort of extraordinary situation in

which equitable tolling applies, and accordingly, we answer the trial court’s certified

question in the negative.

¶ 38 American Family’s citation to persuasive authority does not change this result. Three of

the cases it cites are unreported cases from federal district courts in Illinois, California, and

the Virgin Islands, while the fourth is from the Supreme Court of California. Unreported

decisions have no precedential value, and this is even more true for decisions from foreign

jurisdictions. Burnette v. Stroger,

(2009). Additionally, none of the

cases American Family cites bears any semblance to the factual scenario in the case at bar.

Finally, it appears that the equitable tolling doctrine has been applied much more liberally in

those jurisdictions, which is not the case here in Illinois where, as noted, it is rarely applied.

Thus, the fact that those courts chose to find equitable tolling in the cases before them does

not change our result in the case at bar: American Family has not demonstrated that it was

prevented in some extraordinary way from filing a suit against defendants, and so equitable

tolling does not apply.

12 No. 1-13-1631

¶ 39 CONCLUSION

¶ 40 Since American Family’s inability to file a complaint in its capacity as McGrath’s

contractual subrogee was based entirely on its failure to obtain an executed assignment at the

time it paid McGrath under the insurance policy, there are no extraordinary circumstances

that prevented American Family from filing suit and, accordingly, equitable tolling did not

apply to toll the statute of limitations. Therefore, we answer the question certified by the trial

court in the negative.

¶ 41 Certified question answered.

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