concurring in part and dissenting in part:
I concur with the majority that Lynn’s complaint satisfies the standard necessary to state a cause of action for the intentional infliction of emotional distress, but I respectfully dissent from the remainder of the majority’s opinion.
First, regarding the statue of limitations, Robert contends that each separate act of abuse triggered a new statute of limitations so that all acts of abuse which occurred more than two years prior to the date on which Lynn filed her complaint are barred. I agree. Although I am sympathetic to Lynn’s alleged plight and I understand that the majority is well intentioned in applying the continuing-tort theory in the context of domestic violence and abuse, I believe that the law dictates otherwise.
The majority correctly states that the applicable statute of limitations for a cause of action alleging the intentional infliction of emotional distress is two years, because the tort is a form of personal injury. See 735 ILCS 5/13 — 202 (West 1998). Specifically, the statute reads, “Actions for damages *** shall be commenced within 2 years next after the cause of action accrued ***.” 735 ILCS 5/13 — 202 (West 1998).
Under the continuing-tort theory, also known as the continuing-violation rule, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 345 (2002). In Cunningham v. Huffman, our supreme court held that a medical malpractice claim is not barred by the statute of repose where the plaintiff shows that there was a continuous and unbroken course of negligent treatment and that the treatment was so related that it constituted one continuing wrong. 154 Ill. 2d 398, 406 (1993). The Cunningham court did not adopt a continuing-violation rule of general applicability in all tort cases. Belleville Toyota, Inc., 199 Ill. 2d at 347. Instead, the result in Cunningham was based on the interpretation of the language of the statute of repose. Belleville Toyota, Inc., 199 Ill. 2d at 347.
In Belleville Toyota, Inc., a dealership sued the importer and the wholesaler of new Toyota vehicles, claiming a breach of contract and a violation of the Motor Vehicle Franchise Act (815 ILCS 710/1 et seq. (West 2000)) for failing to allocate vehicles in contractually required quantities and for fraudulently concealing their conduct over a period of many years. 199 Ill. 2d at 329-30. Our supreme court, focusing on the statutory language of the Motor Vehicle Franchise Act limitations period, concluded that the dealership did not identify any statutory language that would require a result similar to Cunningham. Belleville Toyota, Inc., 199 Ill. 2d at 347. Moreover, the Belleville Toyota, Inc. court did not discern any “unjust result[ ],” which it had sought to avoid in Cunningham, that would favor applying a continuing-violation rule. Belleville Toyota, Inc., 199 Ill. 2d at 347. The Belleville Toyota, Inc., court went on to explain that the importer’s and wholesaler’s repeated, alleged misallocations did not constitute “one, continuing, unbroken, decade-long” statutory violation. Belleville Toyota, Inc., 199 Ill. 2d at 349. Instead, each allocation constituted a separate statutory violation — supporting a separate cause of action. Belleville Toyota, Inc., 199 Ill. 2d at 347.
Here, I simply believe that each alleged act of abuse by Robert resulted in a separate cause of action for the intentional infliction of emotional distress. Applying the statutory language, I would hold that Lynn’s causes of action accrued at the time of the alleged abuse. Moreover, I cannot discern any unjust result, because Lynn has alleged actionable, noncumulative, tortious conduct within the limitations period. Therefore, I believe that the circuit court erred by denying Robert’s motion to dismiss the allegations of conduct outside the limitations period.
Second, I agree with Robert’s contention that paragraph 8(d) of the marital settlement agreement, executed by the parties on December 11, 1997, released the claim brought by Lynn in this suit. Paragraph 8(d) provides in pertinent part as follows:
“[A] 11 the rights, claims, and demands of every kind, nature!,] and description! ] which each party has, or may hereafter have, or claim to have against the other! ] shall be and the same hereby are forever discharged, extinguished, released, and ended, and *** any and all manner of actions or causes of actions, suits, *** claims, and demands whatsoever, in law or in equity, which each party ever had *** or may have against the other (as the case may be) for or by reason of any cause, matter!,] or thing whatsoever, from the beginning of the world to the effective date hereof, shall be and the same are[ ] extinguished ***.”
A question of contract construction is reviewed de novo. See State Farm Mutual Automobile Insurance Co. v. George Hyman Construction Co., 306 Ill. App. 3d 874, 882 (1999). Absent ambiguity, the meaning and intent of a contract must be ascertained by the language utilized in the contract. Lenzi v. Morkin, 103 Ill. 2d 290, 293 (1984). A contractual release relinquishes a claim, but not future claims or uncontemplated claims. See Carona v. Illinois Central Gulf R.R. Co., 203 Ill. App. 3d 947, 951 (1990).
Here, the language of the settlement agreement extinguishes all current and future causes of action between the parties. Although the waiver of future claims is prohibited as a matter of law as mentioned above, we are not dealing here with a future claim. Here, Lynn either knew or should have reasonably known of her current claim for emotional distress at the time she executed the marital settlement agreement. Thus, she elected to release it under the terms of the settlement agreement.
I note that the majority cites Deida v. Murphy for the proposition that general boilerplate language is simply ineffective to release specific types of claims. Deida v. Myrphy, 271 Ill. App. 3d 296, 300 (1995). I point out that in Deida, this court held that specific, unchanged, written beneficiary designations on an annuity contract and on two certificates of deposit were not waived by the general language of a dissolution settlement agreement. Deida, 271 Ill. App. 3d at 297-300. Here, the majority fails to point to any specific language in the agreement that overcomes the general. Nevertheless, Lynn argues that the specific provisions in paragraph 8(a) limit the general provisions of paragraph 8(d). I would give this argument weight if paragraph 8 of the settlement agreement was cohesive. It is not. I need only point out that paragraph 8(f) involves social security law and paragraph 8(g) involves applicable governing law.
Therefore, I believe that the marital settlement agreement bars Lynn’s suit against Robert for the intentional infliction of emotional distress for incidents arising prior to the agreement’s execution.
Third, the majority has addressed Robert’s contention that he is immune from interspousal suit for all of Lynn’s claims based on conduct that occurred prior to January 1, 1988, the date on which spouses were statutorily allowed to sue each other for a tort committed during the marriage (750 ILCS 65/1 (West 1998)). I see no need to reach this issue, based on the analysis that I have set forth today.
Therefore, I decline to address the immunity issue, and I answer the issues certified for review as follows:
1. Whether the plaintiffs complaint states a cause of action for the intentional infliction of emotional distress. Yes.
2. Whether the plaintiffs claims for the intentional infliction of emotional distress based on conduct prior to August 25, 1997, are barred by the applicable statute of limitations. Yes.
3. Whether the plaintiffs claim against the defendant for the intentional infliction of emotional distress has been released by the language of the marital settlement agreement. Yes, as to those acts alleged to have occurred prior to its execution.
For the foregoing reasons, I concur in part and dissent in part.