specially concurring:
Section 13 — 214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a)) sets forth a statute of limitations barring actions such as the plaintiffs’ if brought more than two years after discovery of the defect. Subsection (b) creates a 12-year period of repose, while subsection (d) provides that the 12-year period of repose in “[sjubsection (b) shall not prohibit any action against a defendant who has expressly warranted or promised the improvement to real property for a longer period from that being brought within that period.” It is the majority’s apparent failure to recognize the dual character of section 13 — 214 (a statute of limitations for two years and a statute of repose for 12 years or longer in the event of an express warranty) that causes it to misconstrue the statute.
The majority’s misconstruction begins with the attribution of intentions that the General Assembly did not have.
“A careful reading of the Act suggests that the legislature’s specific concern was the impairment of express warranties and promises, including express guarantees. This concern is clear from the language of subsections (b) and (d) cited above. These two provisions operate together to exempt all construction-based, causes of action premised on an express warranty or promise for a term longer than 12 years from both the discovery period of section 13— 214(a) and the period of repose of section 13 — 214(b). Thus, a cause of action predicated on an express warranty or promise exceeding 12 years and entered into before the effective date of the Act is not governed by sections 13— 214(a) and 13 — 214(b) of the Act.” (Emphasis added.) (117 Ill. 2d at 190.)
As I read section 13 — 214(d), it does not purport to exempt actions under express warranty from the two-year limitations period, but only from the repose period of subsection (b) to allow freedom to contract for a longer term of protection. Since subsection (d) does not, contrary to the majority opinion, purport to exempt actions under express warranties of longer than 12 years from the two-year period of limitations, the unreasonable classification which the majority finds to rationalize its opinion is wholly illusory.
Moreover, I find nothing in either the statute or the legislative debates to support the theory that the law applicable in this case was concerned with not impairing existing contract rights. As originally enacted, the statute explicitly provided that it did not govern acts or omissions which had already occurred (Ill. Rev. Stat. 1981, ch. 83, par. 22.3(e)), but the statute was amended by Public Act 82 — 539 in 1981 to eliminate that language. House debates on Public Act 82 — 539 express the specific intent to extend operation of the statute to construction work completed prior to its enactment in 1979. Therefore, the majority’s assertion that “a cause of action predicated on an express warranty or promise exceeding 12 years and entered into before the effective date of the Act is not governed by sectionf] IS — 214(a)” (emphasis added) (117 Ill. 2d at 190) ignores the statute’s legislative history.
Section 13 — 214 required at the time this action commenced that such actions be filed within two years of the date the defect was or reasonably should have been discovered (that period has since been increased to four years). In this case, the plaintiffs’ answers to interrogatories disclose that “the leaks were discovered in January, 1978. *** The leaks appeared all around the building, specifically on the northside and southside of the building.” The defendant contends that the statute began to run in January of 1978, but the plaintiffs claim that the limitations period was not triggered by discovery of the leaks in 1978. They argue that the two-year period began to run in May 1981 after it was discovered that the defendant’s deviation from the contract specifications caused the leaks to occur. See Nolan v. JohnsManville Asbestos (1981), 85 Ill. 2d 161.
Of course, the plaintiffs cannot evade the limitations period of section 13 — 214(a) by simply putting off investigating the cause of a leaky roof which is symptomatic of faulty construction. Such an investigation should, in conformance with the statutory language, be conducted within a “reasonable” time. “At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Knox College v. Celotex Cory. (1981), 88 Ill. 2d 407, 416; see Witherell v. Weimer (1981), 85 Ill. 2d 146.) The record in this case, however, is not sufficiently developed to address the reasonableness question. Though we know the leaks appeared in 1978, we do not know whether the leaks continued or worsened. If they did the trier of fact might conclude that it was unreasonable for the plaintiffs to make no attempt to discover the cause for three years. On the other hand, it may be that the roof promptly ceased leaking after January 1978 and that the leaks did not recur until shortly before discovery of the defect in May 1981. I do not believe, therefore, that the trial court was justified in awarding the defendant summary judgment without examining the reasons for the plaintiffs’ three-year delay between observing the leaks and finding the cause.
For these reasons, I disagree with the majority’s certainty that this action was timely filed, while concurring in the judgment that it should not have been dismissed, at least not on this record. I would remand this cause to the circuit court for trial and determination by the trier of fact of the date on which the two-year period of limitations began to run.
JUSTICE MILLER joins in this special concurrence.