FIRST DIVISION
April 21, 2003

Plaintiff, Marek Paszkowski, sued the Metropolitan WaterReclamation District of Greater Chicago (the District), amongothers, for an injury sustained by plaintiff while working on thedeep tunnel project in Chicago, Illinois. Plaintiff filed suitin the Circuit Court of Cook County alleging negligence. TheDistrict filed a motion to dismiss based on section 8-101 of theLocal Government and Governmental Employees Tort Immunity Act(the Act) (745 ILCS 10/8-101 (West 1998)), alleging thatplaintiff filed the complaint beyond the one year time limit forbringing the action. On June 7, 2001, the trial court denied theDistrict's motion finding that the four year time limit found insection 13-214 of the Code of Civil Procedure (the Code) (735ILCS 5/13-214 (West 1998)) was applicable in this case.

The District filed a motion to reconsider the trial court'sprior denial of its motion to dismiss predicated upon thiscourt's June 18, 2001, decision in Greb v. Forest PreserveDistrict of Cook County, 323 Ill. App. 3d 461, 752 N.E.2d 519(2001). On November 28, 2001, the trial court reconsidered itsruling and found in favor of the District. Plaintiff appealsclaiming that the trial court erred in finding that section 8-101of the Act applied to the instant case instead of section 13-214of the Code. Plaintiff argues that the holding in Greb wasincorrect and this court should reverse the trial court. For thefollowing reasons we reverse the lower court's ruling and remandfor further proceedings.

BACKGROUND

On March 5, 1998, plaintiff sustained serious injuries froman accident involving a cement remix car in the course of hisduties as a construction laborer. Plaintiff was working on thedeep tunnel project on property that was owned by the District. On February 9, 2000, plaintiff filed a complaint against theDistrict to recover for the injuries he sustained. The Districtfiled a motion to dismiss the action claiming that plaintifffailed to file his complaint within the one year limitationperiod of section 8-101 of the Act. Plaintiff responded that theproper limitation was contained in section 13-214 of the Codebecause it was more specific in that it applied to bothconstruction torts as well as identified "any body politic" as apotential defendant. 735 ILCS 5/13-214 (West 1998). The trialcourt agreed with plaintiff and denied the District's motion.

On June 18, 2001, 11 days after the trial court denied theDistrict's motion to dismiss, the Greb case was decided. Theissue in Greb is identical to the issue in the case here. As aresult, the District filed a motion in the trial court toreconsider it's previous ruling in light of Greb. The trialcourt granted the District's motion to dismiss based on section8-101 of the Act and Greb. Plaintiff filed this timely appeal.

ANALYSIS

Plaintiff claims that the decision in Greb was incorrect andshould not be applied by this court. First, plaintiff arguesthat the Greb decision failed to recognize the plain language ofthe section 13-214 of the Code. 735 ILCS 5/13-214 (West 1998). Second, the Greb court's reliance on Tosado v. Miller 188 Ill. 2d186, 720 N.E.2d 1075 (1999), was misplaced. Finally, plaintiffinsists that Greb failed to follow clear Illinois authorityfinding that section 13-214 of the Code is more specific thansection 8-101 of the Act. 735 ILCS 5/13-214 (West 1998); 745ILCS 10/8-101 (West 1998). Plaintiff also argues, in thealternative, that Greb should not apply retroactively in his caseshould we find that the trial court did not err. For the reasonthat follow, we agree with plaintiff and need not address theissue of retroactivity.

This case presents questions of statutory interpretation,which are reviewed de novo. Michigan Avenue National Bank v.County of Cook, 191 Ill. 2d 493, 503, 732 N.E.2d 528 (2000). Thecardinal rule of interpreting statutes, to which all other canonsand rules are subordinate, is to ascertain and give effect to thetrue intent and meaning of the legislature. Kunkel v. Walton,179 Ill. 2d 519, 533, 689 N.E.2d 1047 (1997). "The best evidenceof legislative intent is the language used in the statute itself,which must be given its plain and ordinary meaning." Paris v.Feder, 179 Ill. 2d 173, 177, 688 N.E.2d 137 (1997). When theplain language of the statute is clear and unambiguous, thelegislative intent that is discernable from this language mustprevail, and no resort to other tools of statutory constructionis necessary. Paris, 179 Ill. 2d at 177. Where there is analleged conflict between two statutes, a court has a duty tointerpret those statutes in a manner that avoids an inconsistencyand gives effect to both statutes, where such an interpretationis reasonably possible. McNamee v. Federated Equipment & SupplyCo., 181 Ill. 2d 415, 427, 692 N.E.2d 1157 (1998).

In Greb, the case upon which the trial court relied, thecourt was presented with the same issue before this court in thiscase. The plaintiff in Greb sued the defendant, the City ofChicago (City), alleging that it negligently maintained andmarked a barricaded water main maintenance job site that causedhis accident. The City claimed that the one year limitation onactions brought against governmental entities in section 8-101 ofthe Act should be applied in that case. 745 ILCS 10/8-101 (West2000). The plaintiff argued that the court should have appliedthe four year statute of limitations for causes of actionrelating to construction design management and supervision foundin section 5/13-214 of the Code. 735 ILCS 5/13-214 (West 2000). The Greb court held, relying on Tosado v. Miller, 188 Ill. 2d186, that section 8-101 of the Act applied to his action. Greb,323 Ill. App. 3d 463. Greb also rejected the holding in Zimmerv. Village of Willowbrook, 242 Ill. App. 3d 437, 442, 610 N.E.2d709 (1993). Zimmer held that the legislature intended forsection 13-214(a), which was enacted after section 8-101, toconstitute a limited exception to section 8-101 of the Act. Zimmer, 242 Ill. App. 3d at 443.

Section 13-214 of the Code provides in pertinent part:

"(a) Actions based upon tort, contract or otherwiseagainst any person for an act or omission of such person inthe design, planning, supervision, observation or managementof construction, or construction of an improvement to realproperty shall be commenced within 4 years from the time theperson bringing an action, or his or her privity, knew orshould reasonably have known of such act or omission ***." 735 ILCS 5/13-214(a) (West 1998)

Section 13-214 of the Code further provides that "'person' meansany individual, any business or legal entity, or any bodypolitic." 735 ILCS 5/13-214 (West 1998).

Section 8-101 of the Act provides:

"No civil action may be commenced in any court against alocal entity or any of its employees for any injury unlessit is commenced within one year from the date that theinjury was received or the cause of action accrued. Forpurposes of this Article, the term "civil action" includesany action, whether based upon the common law or statutes orConstitution of this State." 745 ILCS 10/8-101 (West 1998).

According to the plain language of both statutes, either section13-214 of the Code or section 8-101 of the Act could apply toplaintiff's action. This court must decide which of theseconflicting provisions must be given effect. In doing so, wemust determine which of the two statutes more specificallyapplies to the case at hand. Zimmer, 242 Ill. App. 3d at 442.

Our supreme court has recently evaluated the "morespecifically applicable" distinction when two limitation statutesostensibly apply to a single cause of action. In Tosado, thecase on which Greb relies, our supreme court addressed the issueof whether the one year limitations period of the Act (745 ILCS10/8-101 (West 1996)) or the two year limitations period formedical malpractice in section 13-212(a) of the Code (735 ILCS13-212(a) (West 1992)) applied to a medical malpractice claimagainst a county hospital. Tosado, 188 Ill. 2d at 189. In asharply divided plurality opinion, the court determined that in amedical malpractice action, a county hospital and its physicianemployees were subject to the one year limitations period imposedby section 8-101 of the Act, not the two year limitations periodwhich generally applies to medical malpractice actions in section13-212(a) of the Code (735 5/13-212(a) (West 1992)). Tosado, 188Ill. 2d at 194.

Tosado's plurality arrived at this conclusion by decidingthat when two applicable, but conflicting, statutes apply in asingle action, the focus of the inquiry should be on the natureof the defendants rather than on the type of the cause of action. Tosado, 186 Ill. 2d at 194. This decision, according to thedissent in Tosado, was a departure from the "traditionalapproach" where the focus was on the nature of the action todetermine the applicability of competing statutes. Tosado, 188Ill. 2d at 204-5; See also Lanxon v. Magnus, 296 Ill. App. 3d377, 694 N.E.2d 610 (1998), and Cleaver v. Marrese, 253 Ill. App.3d 778, 625 N.E.2d 1129 (1993).

Plurality opinions, however, are often limited in theirprecedential value. Roark, 316 Ill. App. 3d at 845. BecauseTosado is a plurality decision, its precedential value as appliedto this case is unclear. People v. Foggy, 121 Ill. 2d 337, 358,521 N.E.2d 86 (1988) (Simon, J., dissenting). In our view,however, Tosado is distinguishable from this case and,consequently, distinguishable from Greb.

Since section 13-214 of the Code on its face purports toapply to governmental entities, it falls outside the purview ofTosado. The Tosado court, in its analysis, upholds the basicrule of statutory construction that the more specific statutetrumps the more general. See generally Tosado, 188 Ill. 2d 186. The statute at issue in Tosado, section 13-212(a), does notpurport to delineate the respective affiliation of the defendantsand, as a result, section 8-101 of the Code controlled because itwas specifically addressed to governmental agencies. Under thecircumstances in the instant case, it would be reasonable toconclude that where both statutes encompass the same defendants,the more specific statue would be the one that also involves thesame cause of action namely, construction torts in section 13-214of the Code.

Section 8-101 of the Act, with regard to the nature ofpotential defendants, enumerates "*** local entit[ies] or any ofits employees." 745 ILCS 10/8-101 (West 1998). Section 13-214of the Code provides that "'person' means any individual, anybusiness or legal entity, or any body politic." (Emphasisadded.) 735 ILCS 5/13-214 (West 1998). When focusing on thedefendants concerned in the provisions at issue, both statutespurport to apply to any governmental entity by virtue of theplain language contained therein. To conclude otherwise would beto ignore the "any body politic" phrase that the legislaturewrote into the statute. This court cannot declare that thelegislature did not mean what the plain language of the statuteimports. County of Du Page v. Graham, Anderson, Probst & White,109 Ill. 2d 143, 151-52, 485 N.E.2d 1076 (1985).

However, when one considers the "nature of the action"aspect of this case, section 13-214 is clearly more specificsince it refers to a limited type of tort action, ones related toconstruction. 735 ILCS 5/13-214 (West 2000). Section 13-214 ofthe Code says it is applicable to "actions based upon tort,contract or otherwise against any person for an act or omissionof such person in the design, planning, supervision, observationor management of construction, or construction of an improvementto real property ***." Section 8-101 of the Act, on the otherhand, applies to a far more general group of "civil actions"describing those civil actions to which it applies, as any actionwhether based upon common law, statutes, or the Constitution ofthis State. 745 ILCS 10/8-101 (West 2000).

In our opinion, the Greb court's reliance on Tosado andrejection of Zimmer in concluding that section 8-101 of the Actapplied in that case rather than section 13-214 of the Code, wasmisplaced. The court in Greb failed to recognize that section13-214 of the Code specified governmental entities on its face. The statute at issue in Tosado did not contain that caveat. Since section 13-214 of the Code explicitly provides that agovernmental entity is within its purview, there is no reason toconclude that Tosado applies here. We agree with the rationalein Zimmer holding that section 13-214 of the Code is morespecific than section 8-101 of the Act. Zimmer, 242 Ill. App. 3dat 443. It is important to note, as well as instructive, thatthe plurality in Tosado cited Zimmer for the proposition that asbetween two specific statutes, the more specific controls. Tosado, 188 Ill. 2d at 202. In our view, Greb was decidedincorrectly and we decline to apply it in the instant case.

For the foregoing reasons, the judgment of the circuit courtis reversed and remanded for further proceedings.

Reversed and remanded.

GORDON, P.J., and MCNULTY, J., concur.