Section 13-214.3(E) of the Code of Civil Procedure - Minority Tolling Provision
In DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 306 Ill. Dec. 136 (2006) the issue was whether section 13--214.3(e) of the Code of Civil Procedure, which provides that the "period of limitations" for such an action is tolled during the minority or disability of the person entitled to sue, tolled the six-year statute of repose as well as the two-year statute of limitations.
The plaintiffs also claimed that both statutes had been tolled by the attorney's fraudulent concealment of the injury. DeLuna, 223 Ill. 2d at 56.
The court ultimately concluded that the statute of repose was tolled during minority or disability (DeLuna, 223 Ill. 2d at 65), and also was subject to an exception in cases of fraudulent concealment (DeLuna, 223 Ill. 2d at 74).
The supreme court first held that the phrase used in the legal malpractice minority tolling provision (735 ILCS 5/13--214.3(e) (West 2008)), "period of limitations," was ambiguous. DeLuna, 223 Ill. 2d at 62.
The court noted that article XIII of the Code is titled simply "Limitations," although it contains both statutes of limitations and statutes of repose. DeLuna, 223 Ill. 2d at 61.
In addition, the legislature used the term "repose" only twice in all of article XIII (and one instance was in the title of the provision only), although the article contains many statutes of repose.
Nevertheless, the legislature clearly knows the difference between a statute of limitations and a statute of repose, and could have chosen to use those more exact terms but did not. DeLuna, 223 Ill. 2d at 61-62. Therefore, the phrase "period of limitations" could refer either to the statute of limitations, or to the statute of repose, or to both. DeLuna, 223 Ill. 2d at 62.
In DeLuna, the supreme court next noted the location of the tolling provision at issue: it was not placed within either the subsection setting a statute of limitations for legal malpractice actions (subsection 13--214.3(b) of the Code) or the subsection establishing a statute of repose (subsection 13--214.3(c)), but rather followed both of those subsections in its own subsection (subsection 13--214.3(e)). DeLuna, 223 Ill. 2d at 63.
The supreme court stated that the position of the provision at issue within the overall organization of a statute may reflect the legislature's view of how different parts of a statute should interact. DeLuna, 223 Ill. 2d at 63-64, citing Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 453, 687 N.E.2d 1014, 227 Ill. Dec. 532 (1997).
The separate and subsequent location of the minority tolling provision suggested that it was meant to apply to both the statute of limitations and the statute of repose. DeLuna, 223 Ill. 2d at 64.