dissenting:
I cannot agree with the majority in this case because I believe the result reached is unjust and violative of the Constitution of the State of Illinois.
As the majority states, plaintiff Sieman argued that barring his cause of action before he was aware of its existence violated section 12 of article I of the Illinois Constitution. (111 Ill. 2d at 423.) Section 12 provides:
“Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.” (Emphasis added.) Ill. Const. 1970, art. I, sec. 12.
In response to plaintiff Sieman’s argument, the majority cites Anderson v. Wagner (1979), 79 Ill. 2d 295, and Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, and states that these two opinions held the amendment to the statute of limitations to be constitutional. (111 Ill. 2d at 423, 428-29.) It is clear, however, that Anderson did not specifically address the issue raised by plaintiff Sieman. In Anderson, this court stated:
“The plaintiffs also contend, in an unarticulated due process argument, that under section 21.1 it is possible that a person’s cause of action may be barred by the 4-year-maximum time limit before he learns of his injury. This problem is not directly involved in these cases.” (Emphasis added.) 79 Ill. 2d 295, 311.
Then, in dicta, in Anderson, this court discussed the fact that the 4-year limitation had been enacted in response to the medical malpractice crisis and therefore “the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish.” (79 Ill. 2d 295, 312.) In Anderson, the plaintiffs were not instantaneously barred, and therefore the specific issue raised by plaintiff Sieman was not addressed.
Then, in Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, this court addressed this argument and held that the plaintiffs in those consolidated cases could not be precluded from bringing their causes of action since the amendment to the statute of limitations instantaneously barred them from bringing their suits. In Moore, we stated:
“So, while the Illinois legislature’s response to the medical malpractice crisis may effectively limit the time in which future plaintiffs (plaintiffs whose injuries occur after the effective date of the 1976 amendment) can bring an action, we will not read into the statute a retroactive application so as to instantaneously extinguish a cause of action that existed prior to the amendment.” (Emphasis added.) 95 Ill. 2d 223, 237.
The majority states that “[t]he constitutionality of the provision seemingly was reaffirmed in Moore.” (111 Ill. 2d at 423.) This is true only to the extent that the statute applies to plaintiffs injured after the effective date of the amendment.
In Moore, the court further stated:
“In 1976, the Illinois legislature did not clearly indicate its intention as to the applicability of the 1976 amendment. Since there is no express language as to retroactive application, we must give section 21.1 a prospective construction. This is the only equitable and rational solution to the dilemma the plaintiffs in these cases face.” (95 Ill. 2d 223, 235-36.)
Therefore, Moore does not hold that the repose provision as applied to plaintiffs like those in Moore, or the plaintiffs herein, is constitutional. Moore also does not hold that a plaintiff who was injured prior to the effective date of the amendment and who does not bring suit until four years after the effective date is barred from bringing suit. In Moore, we held that the plaintiffs therein should have been allowed a reasonable time after the effective date of the amendment to bring their suits for their already discovered injuries. While it is true that the plaintiffs in Moore had filed their suits within the four years after the effective date of the amendment, we did not decide that plaintiffs such as Sieman and Mega would be forever barred if they did not bring suit within four years after the effective date of the amendment. The majority states that to allow a period greater than four years after the effective date would defeat the purpose of the statute. (111 Ill. 2d at 422.) But this is not true as to those plaintiffs injured after the effective date of the amendment. While the medical malpractice crisis might have made it reasonable to enact such a statute, it is not reasonable to apply it to these plaintiffs.
To interpret Moore for the broad statements that the majority suggests is error. Moore stands for the proposition that plaintiffs who were injured prior to the effective date of the amendment and who could have brought suit cannot now be instantaneously barred from seeking redress for their undiscoverable injuries. Locking the courtroom door on this group of plaintiffs before they could even have discovered their injuries or availed themselves of the judicial process is unconstitutional in Illinois. The majority states that this amendment “restricts the time within which an action must be brought, but it does not eliminate an entire category or type of action.” (111 Ill. 2d at 424.) This is not true. The entire category of plaintiffs who were injured prior to September 19, 1976, but did not bring suit within four years after that date is eliminated.
In Daugaard v. Baltic Cooperative Building Supply Association (S.D. 1984), 349 N.W. 2d 419, a case cited by the majority (111 Ill. 2d at 423) and decided by the Supreme Court of South Dakota, two underground liquified propane gas lines were installed at the site of a grain elevator. The installation failed to incorporate an anticorrosion system, and on May 28, 1980, a fire began and an explosion occurred. A number of individuals were seriously injured, and at least one of the injured died. An investigation revealed that the pipes installed in 1970 had corroded. The corrosion allowed the propane to leak into the basement of the elevator, causing an accumulation of the propane gas which led to the explosion.
Two South Dakota statutes set forth time limits which precluded the plaintiffs from recovering. The statutes provided:
“No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, may be brought against any person performing or furnishing the design, planning, supervision, inspection and observation of construction, or construction, of such an improvement more than six years after substantial completion of such construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was intended.” (Emphasis added.) S.D. Codified Laws Ann. sec. 15 — 2—9 (1984).
“In the application of any statute of limitations to a cause of action against a manufacturer, lessor or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, inspection, preparation, assembly, testing, packaging, labeling, or sale of any product or failure to warn or protect against a danger or hazard in the use, misuse or unintended use of any product, or the failure to provide proper instructions for the use of any product, the cause of action shall be barred if it accrues more than six years after the date of the delivery of the completed product to its first purchaser or lessee who was not engaged in the business of selling such product, regardless of the date the defect in the product was or should have been discovered. This section shall not apply to causes of action which have arisen prior to July 1, 1978.” (Emphasis added.) S.D. Codified Laws Ann. sec. 15-2-12.1 (1984).
Article VI, section 20, of the South Dakota Constitution provided: “All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.” S.D. Const., art. VI, sec. 20.
Even though these South Dakota statutes had specified prospective application, the court declared them unconstitutional because it held that the State courts had to be open to the injured and the oppressed. The court stated that the two statutes were “a locked deadbolt and shackle on our courtroom doors” (Daugaard v. Baltic Cooperative Building Supply Association (S.D. 1984), 349 N.W.2d 419, 425) and concluded that they were “statutes of nullification which stamp out our citizens’ causes of action before they accrue.” (Emphasis added.) (349 N.W.2d 419, 425.) The Daugaard court held that the two statutes were “violative of, and repugnant to, constitutional provisions insuring the citizenry of open courts.” 349 N.W.2d 419, 427.
There may be some that would argue that the Daugaard case is distinguishable because, in Daugaard, the court held that even though the statute was to be applied prospectively it unconstitutionally barred causes of action before the plaintiffs could have discovered their injuries. We have not gone that far in Illinois, but I believe the reasoning used in that opinion is helpful in understanding the dilemma of the plaintiffs in the instant cases.
The United States Supreme Court has held:
“What the Constitution does require is ‘an opportunity [to be heard,] *** granted at a meaningful time and in a meaningful manner.’ ” (Emphasis added.) (Boddie v. Connecticut (1971), 401 U.S. 371, 378, 28 L. Ed. 2d 113, 119, 91 S. Ct. 780, 786.)
The Illinois Constitution is the basis upon which all of our State laws must be premised. Like the South Dakota Constitution, our constitution clearly directs that the courts of this State shall be open to the injured. “A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions.” (Emphasis added.) Wilson v. Iseminger (1902), 185 U.S. 55, 62, 46 L. Ed. 804, 807, 22 S. Ct. 573, 575.
Statutes of limitation proceed on the premise that an injured party has a full opportunity to try his rights in the courts within certain time limits. (Daugaard v. Baltic Cooperative Building Supply Association (S.D. 1984), 349 N.W.2d 419, 425.) The majority quotes language from Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418. In Williams, this court quoted from Rozny v. Marnul (1969), 43 Ill. 2d 54, wherein it is stated that the “constitutionally established policy of providing a remedy for every wrong inflicted is tempered by the policy of the statute of limitations which bars actions brought after the period of time which the legislature has determined makes the problems of proof so difficult as to pose a danger of injustice.” (Emphasis added.) (45 Ill. 2d 418, 432.) When a statute of limitations like the instant one is applied to people injured before its effective date, it does not “temper” the certain-remedy provision, it makes it illusory. The statute in the instant case bars all recovery to these plaintiffs without allowing them a reasonable time for the commencement of an action. As we stated in Moore, these plaintiffs, who were injured prior to the effective date of the amendment, are the victims of an “unusual statutory dilemma.” They had rights which were instantaneously extinguished upon the effective date of the amendment.
In conclusion, I believe the majority has reached the wrong result in this case and has incorrectly interpreted Moore. It is unconstitutional to preclude these plaintiffs who were injured prior to September 19, 1976, from bringing suit. There is not a “certain remedy in the laws” for them, and they cannot “obtain justice by law, freely, completely, and promptly.” Therefore, I respectfully dissent.