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Barragan v. Osman Construction Corp.

August 24, 2004

[5] VERONICA BARRAGAN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF ROBERTO BARRAGAN, DECEASED, AND JESUS BARRAGAN, PLAINTIFFS,
v.
OSMAN CONSTRUCTION CORPORATION, DEFENDANT-APPELLANT CASCO DESIGN CORPORATION, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Cook County 97 L 8331. Hon. Mary A. Mulhern, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Cahill

[8]  This case involves the interplay between two statutes: section 13-204 of the Code of Civil Procedure (Code), governing claims for contribution and indemnity (735 ILCS 5/13-204 (West 2000)), and section 13-207 of the Code, governing counterclaims and setoff (735 ILCS 5/ 13-207 (West 2000)).

[9]  Defendant Osman Construction Corporation (Osman) appeals the dismissal of its counterclaim for contribution against defendant Casco Design Corporation (Casco). The trial court determined that Osman's counterclaim was barred by the two-year statute of limitations in section 13-204 (735 ILCS 5/13-204 (West 2000)). Osman appeals, arguing that the trial court should have applied section 13-207, which allows counterclaims barred by time limits to proceed (735 ILCS 5/13-207 (West 2000)). We affirm.

[10]   Plaintiff Jesus Barragan was injured and his brother Roberto Barragan was killed when a masonry wall collapsed at a construction site where they were working on July 8, 1997. They were employed by Masonry Construction Corporation, a subcontractor of Osman, the general contractor. Casco was the architect. The original lawsuit was a negligence action filed by Jesus against Osman on July 15, 1997. Veronica Barragan, special administrator for the estate of Roberto, joined Jesus in filing a first amended complaint on July 18, 1997, adding a wrongful death claim and Casco as a defendant. Osman and Casco were served with the first amended complaint on August 6, 1997. Casco filed a counterclaim for contribution against Osman on July 29, 1999, about one week before the limitations period expired. Osman filed a counterclaim for contribution against Casco on December 7, 2000. A settlement agreement followed, requiring Osman to pay the Barragans $4.65 million without contribution from Casco.

[11]   Casco moved to dismiss Osman's counterclaim under section 2-619 of the Code (735 ILCS 5/2-619(a)(5) (West 2000) (involuntary dismissal of a complaint for not being commenced within the statutory time limit)). Casco argued that Osman's counterclaim was barred by the two-year limitation for contribution actions under section 13-204 of the Code (735 ILCS 5/13-204 (West 2000)) because Osman was served with the original complaint in the underlying action on August 6, 1997, but did not file its counterclaim for contribution against Casco until December 7, 2000, well beyond the two-year limit. The trial court agreed and granted Casco's motion to dismiss. Osman appeals.

[12]   The question on review is whether the trial court should have allowed Osman's counterclaim to proceed under section 13-207. We review de novo a dismissal based on a statute of limitations under section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2000)). Broadnax v. Morrow, 326 Ill. App. 3d 1074, 1077, 762 N.E.2d 1152 (2002).

[13]   We begin our analysis with the language and the legislative history of the two statutes.

[14]   The General Assembly enacted the precursor of section 13-207 (Ill. Rev. Stat. 1981, ch. 83, par. 18) in 1982 (Pub. Act 82-280, eff. July 1, 1982). The statute was amended one year later (Pub. Act 83-707, eff. September 23, 1983), but the changes were not substantive. The purpose of section 13-207 is to prevent plaintiffs from intentionally filing their claims as late as possible, depriving the defendants of a reasonable opportunity to file counterclaims within the original limitations period. Cameron General Corp. v. Hafnia Holdings, Inc., 289 Ill. App. 3d 495, 506, 683 N.E.2d 1231 (1997). Section 13-207 provides:

[15]   "A defendant may plead a set-off or counterclaim barred by the statute of limitation, while held and owned by him or her, to any action, the cause of which was owned by the plaintiff or person under whom he or she claims, before such set-off or counterclaim was so barred, and not otherwise." 735 ILCS 5/13-207 (West 2000).

[16]   The General Assembly enacted the precursor of section 13-204 in 1981 (Ill. Rev. Stat. 1981, ch. 83, par. 15.2) and amended it substantively in 1995 (Pub. Act 88-538, eff. January 1, 1995) to include indemnity claims within its purview. Guzman v. C.R. Epperson Construction, Inc., 196 Ill. 2d 391, 401, 752 N.E.2d 1069 (2001). The amended version mandated the trigger date for filing a third-party action as "the date of service or of knowledge of the wrongful action or omission, whichever is later." Guzman, 196 Ill. 2d at 401. The two-year statute of limitations applies to all actions for contribution or indemnity except medical malpractice claims. Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349, 364, 703 N.E.2d 473 (1998). Section 13-204 provides, in relevant part:

[17]   "(b) In instances where an underlying action has been filed by a claimant, no action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later.

[18]   (c) The applicable limitations period contained in subsection *** (b) shall apply to all actions for contribution or indemnity and shall preempt, as to contribution and indemnity actions only, all other statutes of limitation or repose, but only to the extent that the claimant in an underlying action could have timely sued the party from whom contribution or indemnity is sought at the time such claimant filed the underlying action, or in instances where no underlying action has been filed, the payment in discharge of the obligation of the party seeking contribution or indemnity is made before any such underlying action would have been barred by lapse of time." 735 ILCS 5/13-204 (West 2000).

[19]   The parties agree that section 13-204, if it applies, bars Osman's counterclaim for contribution. The first step in reconciling the two statutes is to apply the principles of statutory construction. "The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature." Beetle v. Wal-Mart Associates, Inc., 326 Ill. App. 3d 528, 531-32, 761 N.E.2d 364 (2001), citing People v. Owens, 323 Ill. App. 3d 222, 228, 753 N.E.2d 513 (2001). The best indication of legislative intent is the plain language in the statute. Metzger v. DaRosa, 209 Ill. 2d 30, 34-35, 805 N.E.2d 1165 (2004). The court is to give a statute its full effect without resorting to other aids of statutory construction, if the language itself is clear. Metzger, 209 Ill. 2d at 35.

[20]   Where a conflict arises, "a court has a duty to interpret the statutes in a manner that avoids an inconsistency and gives effect to both statutes, where such an interpretation is reasonably possible." Beetle v. Wal-Mart Associates, Inc., 326 Ill. App. 3d 528, 532, 761 N.E.2d 364 (2001). In construing conflicting statutes, "the court may consider the reason and necessity for the legislation, the evils it was designed to remedy, and the objects and purposes the General Assembly sought to achieve." Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 103, 787 N.E.2d 771 (2003). "Where there are two statutory provisions, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one subject, the particular provision must prevail[,] *** especially where the particular provision is later in time of enactment." Bowes v. City of ...


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