On December 19, 2014 the Illinois legislature amended the Illinois construction statute of repose to eliminate its protection in asbestos exposure cases (Public Act 098-1131). Beginning June 1, 2015, design professionals and contractors who specified or installed asbestos-containing materials now may be called on to defend against personal injury and wrongful death claims that were previously barred by the passage of time, even for buildings they completed decades ago with no subsequent involvement.

The purpose of the construction statute of repose is to insulate all participants in the construction process from the onerous task of defending stale claims. Witnesses disappear, memories fade and companies go out of business. Design professionals and builders have little control over the use or upkeep of the structure after construction is complete and the keys are handed to the property owner. Asbestos exposure was previously included under the statute of repose, but the new amendment is as follows: "subsection (b) does not apply to an action that is based on personal injury, disability, disease, or death resulting from the discharge into environment of asbestos." Thus, the Illinois legislature has exposed many in the construction and design industry to new and significant liability.

With the amendment, design professionals, contractors and insurers alike should now be aware and prepared to defend these claims. Questions remain as to whether the amendment holds to the Supreme Court of Illinois' previous rulings that once a statute of limitations has expired, the defendant has a vested right to invoke the bar of limitations period as a defense to a cause of action – a right that cannot be taken away without offending the due process protections of the Illinois Constitution. Polsinelli's Construction, Energy and Real Estate Litigation and Toxic and Mass Tort Litigation practices will continue to monitor ongoing developments.