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10/12/95 TS-AI LIN v. CITY CHICAGO

October 12, 1995

TS-AI LIN, PLAINTIFF,
v.
CITY OF CHICAGO, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (BALBO COMPANY, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County. Honorable Kenneth L. Gillis, Judge Presiding.

Released for Publication November 28, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice S. O'brien delivered the opinion of the court: Cahill, J., concurs. Hoffman, P.j., specially concurs.

The opinion of the court was delivered by: O'brien

JUSTICE S. O'BRIEN delivered the opinion of the court:

Third-party plaintiff, the City of Chicago (City), appeals from the circuit court's dismissal of its complaint against third-party defendant, Balbo Company (Balbo), as untimely pursuant to section 2-619(5) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(5) (West 1992)). We reverse.

On December 5, 1990, plaintiff, Ts-Ai Lin, brought suit against the City for injuries allegedly caused by her fall on a City sidewalk. More than one year, but less than two years later, the City filed a third-party complaint for contribution against Balbo, alleging Balbo was jointly responsible for maintaining the sidewalk. Balbo moved to dismiss the third-party complaint, arguing that the City's contribution action was barred by the statute of limitations contained in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 1992)), which provides that tort actions against a local government must be brought within one year of the time at which a cause of action accrues. The circuit court agreed and dismissed the City's third-party complaint with prejudice. The City appealed.

On appeal, the City argues a two-year statute of limitations should apply to its contribution action against Balbo, not the one-year statute of limitations applicable to actions against local public entities. We agree. Section 8-101 states, "no civil action may be commenced in any court against a local entity *** unless it is commenced within one year from the date that the injury was received or the cause of action accrued." (Emphasis added.) (745 ILCS 10/8-101 (West 1992).) By its plain language, therefore, the one-year statute of limitations contained in section 8-101 applies only to actions "against" local public entities. Clearly a suit by the City against Balbo is not a suit against a local public entity; hence, section 8-101 has no application.

The City argues this court should apply the two-year statute of limitations for contribution actions contained in the recently enacted amendment to section 13-204 of the Code of Civil Procedure (735 ILCS 5/13-204 (West 1994)), which became effective January 1, 1995. The amended section 13-204 does not affect statutory limitation rights that were fully vested prior to its effective date. (735 ILCS 5/13-204(d) (West 1994).) The parties' statutory limitations rights were fully vested prior to January 1, 1995, and hence our analysis is controlled by Caballero v. Rockford Punch Press & Manufacturing Co. (1993), 244 Ill. App. 3d 333, 614 N.E.2d 362, 185 Ill. Dec. 228.

Caballero states that where an underlying direct action is pending, an action for contribution by a joint tortfeasor is subject to the same statute of limitations applicable to the original claimant's cause of action in the underlying direct action. ( Caballero v. Rockford Punch Press & Manufacturing Co., 244 Ill. App. 3d at 337, 614 N.E.2d at 365.) While we are mindful that the particular defendant in the underlying direct action, the City of Chicago, has been granted special status by the legislature affording it the extra protection of a shortened one-year statute of limitations, Caballero speaks of the "cause of action" and not of the status of defendants. The "cause of action" in this case is personal injury. Personal injury actions are typically subject to a two-year statute of limitations. (735 ILCS 5/13-202 (West 1992).) The City was therefore entitled to two years from the date the contribution cause of action accrued to file suit against Balbo. Lin filed suit against the City on October 4, 1991, whereupon the City's contribution cause of action against Balbo accrued. The City filed its third-party complaint against Balbo on December 11, 1992, well within the applicable two-year statute of limitations.

Because we find the City filed its claim for contribution within the general two-year statute of limitations applicable to personal injury actions, we need not determine whether its cause of action constitutes an assertion of a public right not subject to a statute of limitations defense.

Because the disposition of this case is controlled by Caballero v. Rockford Punch Press & Manufacturing Co. (1993), 244 Ill. App. 3d 333, 614 N.E.2d 362, 185 Ill. Dec. 228, we reverse the order of the trial court dismissing the City's contribution action against Balbo and remand for further proceedings.

Reversed and remanded.

CAHILL, J., concurs. HOFFMAN, P.J., specially concurs.

PRESIDING JUSTICE HOFFMAN, specially ...


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