Allstate Insurance Co. v. Menards, Inc., 2002 Ill. Lexis 968, Docket No. 93620 (12/5/02). In a strict liability claim for property damage, the statute of limitations is five years, set out in § 13-205 of the Code of Civil Procedure, not the two years stated in § 13-213(d). This case reached the Supreme Court on a question certified by the Seventh Circuit Court of Appeals. "What is the applicable statute of limitations in Illinois for an action for damages to property based on the doctrine of strict liability in tort when that action is brought within the applicable statute of repose?" The case arose from a fire, allegedly caused by a lamp purchased from defendant’s store, that resulted in damage to the buyer’s home. The lamp was purchased, and the fire occurred, in December 1994. The insurer/subrogee filed a strict products liability suit in March 1999.

Pointing to precedent from the First District and language from § 13-213 of the Code of Civil Procedure, Menards argued that the claim was barred by a two-year limitations period. Pointing to precedent from the Second District and the statute of limitations for property damage actions in § 13-205 of the Code, Allstate argued for a five-year limitations period.

The Supreme Court agreed with the Second District and Allstate. The court ruled that § 13-213(b) is a statute of repose, and that § 213(d) is an exception to the repose period "that is only meant to apply to situations where the injury is not immediately discoverable." The two-year exception stated in § 13-213(d) is an "extra right to plaintiffs," and does not trump the property damage limitation period in § 13-205.

In re India B, 2002 Ill. Lexis 964, Docket No. 92646 (12/5/02). Supreme Court reiterates ruling that a notice of appeal does not stay a parental termination judgment. Appeal from the termination judgment is mooted by intervening adoption of children. A mother’s parental rights were terminated after a default judgment was entered against her when she failed to appear at the termination hearing. After accepting stipulated evidence from the State and the guardian ad litem, the circuit ruled that the mother was unfit, and a judgment was entered terminating her parental rights. She moved timely to vacate the default, and then timely filed a notice of appeal from the denial of that motion. At about the same time, with consent of the GAL, adoption orders for the children were entered. The mother never did move to stay the termination judgment.

Reiterating a recent holding in In re Tekela, 2002 Ill. Lexis 373, Docket No. 91577 (8/29/02) (Reported here in October 2002), the court held that the adoptions were intervening acts that rendered the appeal of the mother’s parental rights moot. The Supreme Court rejected a number of arguments from the mother, ruling primarily that:

The court did make clear that, pursuant to statute, adoptions can be attacked within one year of the adoption order. ". . . [U]ntil that point, the adoptions would have been subject to a petition to vacate upon a showing that there was no valid termination of parental rights in force."

Department of Professional Regulation v. Manos, 2002 Ill. Lexis 966, Docket No. 93299 (12/5/02). Dentists are "surgeons" under the physician-patient privilege statute, so dental records that contain confidential material are subject to the privilege. Department of Professional Regulation’s investigatory power does not trump the privilege. Defendant dentists were the subjects of an administrative investigation by the Department of Professional Regulation. As part of the investigation, the Department issued a subpoena to the doctors that demanded production of patient records. Citing the statutory privilege, 735 ILCS 5/8-802, the dentists refused to produce the records. The circuit court’s order compelling production was reversed by the appellate court. The Supreme Court affirmed.

The Department first argued that its investigatory powers overrode the statutory privilege. The Supreme Court rejected that argument, pointing out that Department investigations were not among the 10 exceptions to the privilege identified in the statute.

The Department also argued that the privilege does not apply to dentists. 735 ILCS 5/8-802 states: "No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character …" The Department argued that the dentists were neither physicians nor surgeons. The court concluded that under Illinois law dentists are not physicians, but they are surgeons. The court stated: "… [T]he historical legislation of our dental practice statute supports the conclusion that dentists are surgeons within the meaning of the physician-patient privilege. Accordingly, we conclude that … information acquired by dentists in attending any patient in a professional character, necessary to enable dentists to professionally serve the patient, are confidential for purposes of the physician-patient privilege."

Wallace v. Smyth, 2002 Ill. Lexis 1646, Docket No. 93144 (12/19/02). Residential child care facility is not entitled to parental immunity. A child who was resident at Maryville Academy as a ward of the State was physically restrained for his aggressive behavior. He was restrained for more than four hours after which the child died from positional asphyxia. The child’s mother sued Maryville and the employees who restrained the child. Defendants moved to dismiss the negligence claims with an assertion of parental immunity.

The Supreme Court refused to extend the doctrine of parental immunity to Maryville, a corporation, or to its employees. "We decline to extend the immunity to a corporate entity, even one whose purpose and history demonstrate the noblest motives. The corporation-child relationship simply does not mirror the parent-child relationship. Consequently, the defendants do not enjoy parental immunity."