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) 
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(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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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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¶ 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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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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¶ 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 fiveyear 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 wrongfuldeath 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 twoyear 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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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.