Zerjal v. Daech & Bauer Const., Inc.
939 N.E.2d 1067
Ill. App. Ct.2010Background
- Zerjal plaintiffs contracted with Theisman (Sure Home Appraisal) for a home inspection; Jackie did not sign the contract.
- Inspection occurred May 13, 2006; plaintiffs purchased the home May 31, 2006.
- Plaintiffs filed a June 16, 2009 complaint alleging breach of contract for undisclosed defects.
- Contract limited liability to the inspection cost, required suit within two years of inspection, and excluded latent/hidden defects from coverage.
- Circuit court granted 2-619 dismissal with prejudice, later entering judgment against Daech & Bauer in a related matter; appeal Followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of exculpatory clause against liability | Zerjal argues exculpatory clause exculpates inspector from breach. | Theisman contends clause is valid unless public policy or social relationship invalidates it. | Exculpatory clause enforceable; not against public policy or semipublic relationship. |
| Validity of contractual two-year limitations period | Two-year limit is invalid as shorter than applicable period or not knowingly waived. | Parties may contract for shortened period; two years reasonable. | Two-year contractual limitation enforceable. |
| Jacqueline Zerjal’s standing to sue given non-signature | Zerjal has a justiciable interest despite not signing the contract. | Standing requires signing; no party. | Court need not address due to Rule 341 noncompliance; record supports dismissal independent of standing. |
| Discovery rule applicability to toll limitations | Discovery of unreported defects tolls limitations period. | Discovery rule not raised below; contract language governs. | Discovery rule not applied; contractually fixed period controls. |
Key Cases Cited
- First Financial Ins. Co. v. Purolator Security, Inc., 69 Ill.App.3d 413 (Ill. App. 1979) (public policy and special-relationship tests for exculpatory clauses)
- Rutter v. Arlington Park Jockey Club, 510 F.2d 1065 (7th Cir. 1975) (public policy and social interest in exculpation)
- Platt v. Gateway International Motorsports Corp., 351 Ill.App.3d 326 (Ill. App. 2004) (exculpatory clauses generally disfavored but enforceable)
- Theisman's v. (Shorr Paper) Paper Prods., Inc., 198 Ill.App.3d 9 (Ill. App. 1990) (distinguishes contractual duties from maintenance obligations)
- First Financial Ins. Co. v. Smith, 69 Ill.App.3d 418 (Ill. App. 1979) (special social-relationship analysis)