2015 IL App (2d) 141168 No. 2-14-1168 Opinion filed December 2 8, 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, ) D eceased, 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. O PINION ¶ 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

- 2 - (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 fa cts 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 -6 19 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 a rgue s the statute -of- limitations issue o n 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. BACKGR OUND ¶ 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 a n 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 ,2015 IL App (2d) 141168

- 3 - 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 oc curred, 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 X L ), family expense on behalf of Margaret for her personal injuries (count XLI), and family expense on behalf of Maxamillian for his personal injuries (count XL II). ¶ 8 II. ANALYSIS ¶ 9 A mo tion 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 Morreal e , 351 Ill. App. 3d 238, 240 (2004)

. On review , we may consider admissions in the record and exhibits that a re attached to the pleadings ( Pearson v. Lake Forest Country Day School , 26 2 Ill. App. 3d 228, 231 (1994)) , an d w e can su stain 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

. Tr avelers Casualty & Surety Co. v. Bowman , 229 Ill. 2d 461, 466 (2008 ).2015 IL App (2d) 141168

- 4 - ¶ 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 peri od for the plaintiff’s product

- liability action precluded him from prosecuting his negligent

- sp oliation action. Id. at 431. T he 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

- spoliati on 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 com mencement of a negligent

- spoliation claim “is not ot herwise 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 ho lding that the cause of action accrue s 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 lim itations 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 house2015 IL App (2d) 141168

- 5 - fire , the plaintiffs brought an action against the defendants for negligence, spoliation, conspirac y, 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 ac crued.” 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 ’ spoli ation claims sought recovery only for personal injuries. Although to establish spoliation of evidence the spoliation claims allege d the destruction of proper ty , the claims did not seek recovery for the destruction of property. Rather, t he plaintiffs soug ht 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. ¶ 34.2015 IL App (2d) 141168

- 6 - ¶ 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 determ i ne 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 de struc tion 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 claim s by about October 9, 2012. The p laintiffs filed their first complaint directed against the defendants on July 25, 2013, which was within the five

year property and catc h- 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 injur ies to another

— survival , personal injury to Maxamillian, loss of consortium, and family expense s 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 , t he two

year limitations period of section 13

- 202 applies to the se personal injury actions. T he 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, ¶ 35.2015 IL App (2d) 141168

- 7 - ¶ 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 fro m 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 wro ngful- 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 plaintiff2015 IL App (2d) 141168

- 8 - 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 lim itations 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.