2015 IL App (2d) 141168
No. 2-14-1168
Opinion filed December 28, 2015
______________________________________________________________________________
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
NICHOLAS A. SKRIDLA, Individually and as
) Appeal from the Circuit Court of
Administrator of the Estate and as Personal
) Winnebago County.
Representative of Margaret E. Skridla, )
Deceased, and as Father and Next Friend)
of Maxamillian J.A. Skridla, a Minor, )
)
Plaintiff-Appellant, )
)
v. ) No. 10-L-364
)
GENERAL MOTORS COMPANY, )
General Motors Corporation, GENERAL )
MOTORS CORPORATION, GENERAL )
MOTORS, LLC, and DANA J. FANARA, )
)
Defendants )
) Honorable
(Auto Owners Insurance Company, ) Eugene G. Doherty,
Defendant-Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 On February 19, 2014, plaintiff, Nicholas A. Skridla, filed a 42-count fourth amended
complaint for damages arising from an automobile accident involving his wife and son, Margaret
E. Skridla and Maxamillian J.A. Skridla, on December 3, 2009. Only plaintiff’s claims of
spoliation of evidence against defendant Auto Owners Insurance Company (Auto Owners)
2015 IL App (2d) 141168
(counts XXXVII through XLII) are the subject of this appeal. The claims against Auto Owners
were added in the fourth amended complaint, when Auto Owners was joined as a defendant. The
other counts of this product-liability and personal-injury action remain pending in the trial court.
¶2 Plaintiff contends that the trial court erred in dismissing the spoliation counts with
prejudice pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615
(West 2010)) on the ground that plaintiff did not plead sufficient facts to establish that Auto
Owners owed plaintiff a duty to preserve the evidence at issue.
¶3 Auto Owners argues that the dismissal was proper under section 2-615 and also maintains
that the spoliation counts should have been dismissed pursuant to section 2-619 of the Code (735
ILCS 5/2-619 (West 2010)) for the additional reason that they were untimely, as Auto Owners
argued in its combined section 2-619.1 motion (735 ILCS 5/2-619.1 (West 2010)) in the trial
court. Plaintiff argues the statute-of-limitations issue on appeal. We agree with Auto Owners
that the spoliation counts were statutorily time-barred. Because we affirm the dismissal of
counts XXXVII through XLII on this basis, we do not reach the merits of plaintiff’s section 2-
615 arguments.
¶4 I. BACKGROUND
¶5 According to plaintiff’s fourth amended complaint, Margaret and Maxamillian were
injured on December 3, 2009, when their stopped vehicle was rear-ended by an automobile
driven by defendant Dana Fanara. Margaret’s injuries led to her death on January 24, 2012;
Maxamillian survived.
¶6 On February 9, 2014, plaintiff filed his fourth amended complaint, adding Auto Owners,
Fanara’s automobile liability insurance carrier, as a defendant. Plaintiff alleged that Auto
Owners undertook an investigation of Fanara’s vehicle, inspecting all damage to the vehicle, and,
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2015 IL App (2d) 141168
after completing its investigation, sold the vehicle for salvage. In so doing, plaintiff alleged,
Auto Owners failed to download the vehicle’s sensory diagnostic module and also deprived
plaintiff of any opportunity to download it, thereby destroying evidence as to Fanara’s speed and
braking prior to rear-ending the vehicle occupied by Margaret and Maxamillian. Although
plaintiff’s complaint does not allege when the spoliation occurred, an exhibit attached to
plaintiff’s response to Auto Owners’ motion to dismiss the spoliation counts indicates that
Fanara’s vehicle was sold to the salvage company on January 21, 2010.
¶7 Plaintiff’s spoliation claims were predicated upon wrongful death on behalf of Margaret
(count XXXVII), survival on behalf of Margaret (count XXXVIII), personal injury on behalf of
Maxamillian (count XXXIX), loss of consortium on behalf of plaintiff (count XL), family
expense on behalf of Margaret for her personal injuries (count XLI), and family expense on
behalf of Maxamillian for his personal injuries (count XLII).
¶8 II. ANALYSIS
¶9 A motion to dismiss under section 2-619 of the Code (735 ILCS 5/2-619 (West 2014))
admits the legal sufficiency of the claim but asserts an affirmative defense that defeats the claim.
Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 578-79 (2006). We review
de novo the disposition of a motion to dismiss based on a statute of limitations. In re Marriage
of Morreale, 351 Ill. App. 3d 238, 240 (2004). On review, we may consider admissions in the
record and exhibits that are attached to the pleadings (Pearson v. Lake Forest Country Day
School, 262 Ill. App. 3d 228, 231 (1994)), and we can sustain a dismissal on any basis found in
the record. Milo v. Alberto-Culver Co., 306 Ill. App. 3d 822, 825 (1999). In addition, the
application of a statute of limitations to a cause of action presents a legal question, which is also
reviewed do novo. Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 466 (2008).
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2015 IL App (2d) 141168
¶ 10 There is conflicting opinion in the Illinois Appellate Court as to the appropriate statute of
limitations for a cause of action for spoliation of evidence. In Babich v. River Oaks Toyota, 377
Ill. App. 3d 425 (2007), the plaintiff filed product-liability and negligent-spoliation claims
against the defendants. The First District held that the expiration of the limitations period for the
plaintiff’s product-liability action precluded him from prosecuting his negligent-spoliation
action. Id. at 431. The court noted: “[i]t is well settled that Illinois courts do not recognize
negligent spoliation of evidence as an independent cause of action.” Id. (citing Boyd v. Travelers
Insurance Co., 166 Ill. 2d 188, 192-93 (1995). Rather, negligent spoliation is “a derivative
action that arises out of other causes of action, including a negligence cause of action.” Id.
Therefore, the same statute of limitations applies to a negligent-spoliation action as applies to the
underlying cause of action. Id.
¶ 11 However, in Schusse v. Pace Suburban Bus Division of the Regional Transportation
Authority, 334 Ill. App. 3d 960 (2002), the First District stated that, because the limitations
period for the commencement of a negligent-spoliation claim “is not otherwise provided for by
statute” (id. at 970), it is governed by the five-year period in section 13-205 of the Code (735
ILCS 5/13-205 (West 1994)), which applies to “civil actions not otherwise provided for.”
Schusse, 334 Ill. App. 3d at 970 (further holding that the cause of action accrues on the date that
the evidence is destroyed). Schusse cited Cammon v. West Suburban Hospital Medical Center,
301 Ill. App. 3d 939 (1998), another First District case that held that the limitations period for a
negligent-spoliation claim is the five years set forth in section 13-205. Id. at 951.
¶ 12 This court recently determined that Babich presents the better view. See Wofford v.
Tracy, 2015 IL App (2d) 141220, ¶¶ 30-35 (holding that the limitations period of the underlying
action applies because spoliation is a derivative cause of action). In Wofford, following a house
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2015 IL App (2d) 141168
fire, the plaintiffs brought an action against the defendants for negligence, spoliation, conspiracy,
conversion, and res ipsa loquitur. In their spoliation counts, the plaintiffs alleged that, as a
proximate result of the defendants’ destruction of evidence, they were prejudiced in that they “
‘lost the opportunity to examine evidence from the fire scene to determine the cause, origin, and
spread of the fire in order to successfully bring a personal injury lawsuit against [d]efendants.’ ”
(Emphasis omitted.) Id. ¶ 30. The trial court dismissed the spoliation claims with prejudice as
time-barred.
¶ 13 On appeal, the plaintiffs argued that the five-year limitations period in section 13-205 of
the Code applied. Section 13-205 provides:
“[A]ctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to
recover damages for an injury done to property, real or personal, or to recover the
possession of personal property or damages for the detention or conversion thereof, and
all civil actions not otherwise provided for, shall be commenced within 5 years next after
the cause of action accrued.” 735 ILCS 5/13-205 (West 2014).
The plaintiffs contended that section 13-205 should apply because a spoliation action does not
arise from personal injuries, but from destruction of property. This court disagreed, finding that
the plaintiffs’ spoliation claims sought recovery only for personal injuries. Although to establish
spoliation of evidence the spoliation claims alleged the destruction of property, the claims did
not seek recovery for the destruction of property. Rather, the plaintiffs sought to establish that
the destruction of property entitled them to damages for personal injuries. Wofford, 2015 IL App
(2d) 141220, ¶ 30. We found the proper focus to be the plaintiffs’ underlying negligence claims
and the recovery sought in those counts. Id. ¶ 34.
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2015 IL App (2d) 141168
¶ 14 Following Babich, we held that, “because spoliation is a derivative cause of action, the
limitations period of the underlying action—section 13-202 [(735 ILCS 5/13-202 (West
2014))]—applies.” Id. ¶ 35 (noting that this conclusion accounts for the fact that spoliation
claims are not independent torts). We further noted our agreement with Schusse’s statement that
the discovery rule applies to determine the commencement of the limitations period. Id. ¶ 35 n.8
(citing Schusse, 334 Ill. App. 3d at 970).
¶ 15 In Wofford, the fire, the plaintiffs’ injuries, and the destruction of the property occurred
on October 9, 2010, and soon thereafter. Thus, in order to comply with the two-year statute of
limitations, the plaintiffs had to file their claims by about October 9, 2012. The plaintiffs filed
their first complaint directed against the defendants on July 25, 2013, which was within the five-
year property and catch-all statute, but not within the personal-injury statute. See Id. ¶ 31 n.7.
¶ 16 In this case, plaintiff’s spoliation-of-evidence counts, with the exception of his wrongful-
death spoliation count, all arise from underlying actions for personal injuries to another—
survival, personal injury to Maxamillian, loss of consortium, and family expenses due to injuries
to Margaret and Maxamillian. Because these claims are actions “deriving from injury to the
person of another,” they are subject to commencement “within the same period of time as actions
for damages for injury to such other person.” 735 ILCS 5/13-203 (West 2010). Thus, the two-
year limitations period of section 13-202 applies to these personal injury actions. The two-year
limitations period of section 2 of the Wrongful Death Act (740 ILCS 180/2 (West 2010)) applies
to the wrongful-death claim. Pursuant to Wofford, the two-year limitations periods of the
underlying actions—sections 13-202 and 2—also apply to plaintiff’s derivative spoliation
actions. Wofford, 2015 IL App (2d) 141220, ¶ 35.
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¶ 17 Plaintiff’s personal-injury claims accrued on the date of the accident, December 3, 2009;
his wrongful-death claim accrued at the time of Margaret’s death, January 12, 2012. Notably,
however, a wrongful-death claim, like a spoliation claim, is derivative: “derivative of the action
[the] decedent had in his lifetime.” Limer v. Lyman, 220 Ill. App. 3d 1036, 1043 (1991). Thus,
the limitations period for a wrongful-death claim begins to run at the time of the death, but “only
if the deceased had a claim that was not time barred on or before his death.” Wolfe v. Westlake
Community Hospital, 173 Ill. App. 3d 608, 612 (1988). Put another way, as long as “the
decedent’s claim was not time barred at the time of his death, the wrongful death statute provides
the claimant with a two year statute of limitations which begins running from the time of death.”
Id. The limitations period for a spoliation claim would seem to work similarly: as long as the
underlying claim was not time-barred at the time of the destruction of the evidence, the
limitations period for the spoliation claim begins running from that time. Here, by plaintiff’s
own admission, Fanara’s vehicle was sold for salvage on January 21, 2010. Plaintiff does not
argue that he discovered the destruction on any other date. Thus, plaintiff had two years from
January 21, 2010, or until January 21, 2012, to file his spoliation claims. Those claims were not
filed until February 9, 2014. Even if he had two years from Margaret’s death, or until January
12, 2014, to file his spoliation claim arising from his wrongful-death claim, the claim was
untimely.
¶ 18 Plaintiff raises a concern, shared by the trial court, that unfairness to a plaintiff could
result if the limitations period for a spoliation claim begins to run on the same day as the
limitations period for the underlying claim. We have alleviated this concern by suggesting that
the limitations period for a spoliation claim begins to run not on the same day as that for the
underlying claim, but on the day of the destruction of the evidence (or the day that the plaintiff
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2015 IL App (2d) 141168
discovers it), provided that the underlying claim itself was not time-barred on that day. We need
not so hold definitively, however. Here, the destruction of Fanara’s vehicle occurred only seven
weeks after the accident. Thus, even if the limitations period for plaintiff’s spoliation claims
began to run on the day of the accident, plaintiff still had nearly two full years to file those
claims. No unfairness resulted.
¶ 19 III. CONCLUSION
¶ 20 For the reasons stated, the judgment of the circuit court of Winnebago County is
affirmed.
¶ 21 Affirmed.
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