Barragan v. Casco Design Corp.

• Decision Date: 22 September 2005
• Docket Number: No. 99261.,99261.
• Citation: 837 N.E.2d 16,216 Ill.2d 435
• Parties: Veronica BARRAGAN, Indiv. and as Special Adm'r of the Estate of Roberto Barragan, et al. (Osman Construction Corporation, Appellant), v. CASCO DESIGN CORPORATION, Appellee.
• Court: Illinois Supreme Court

837 N.E.2d 16

216 Ill.2d 435

Veronica BARRAGAN, Indiv. and as Special Adm'r of the Estate of Roberto Barragan, et al. (Osman Construction Corporation, Appellant), v. CASCO DESIGN CORPORATION, Appellee.

No. 99261.

Supreme Court of Illinois.

September 22, 2005.

COPYRIGHT MATERIAL OMITTED

Robert Marc Chemers, Matthew J. Egan, Scott L. Howie, of Pretzel & Stouffer, Chtrd., Chicago, for appellant.

Momkus, McCluskey, McAndrew & Monroe, L.L.C., Downers Grove (James P. Marsh, James F. McCluskey, Edward R. Psenicka, of counsel), for appellee.

Chief Justice THOMAS delivered the opinion of the court:

Plaintiffs, Jesus Barragan and Veronica Barragan, filed suit in the circuit court of Cook County against defendants, Osman Construction Corporation (Osman) and Casco Design Corporation (Casco), to recover for death and injury caused by a construction-related accident. Casco filed a counterclaim for contribution against Osman, and Osman subsequently filed a responsive counterclaim for contribution against Casco. The issue presented in this case is whether section 13-207 of the Code of Civil Procedure (Code) (735 ILCS 5/13-207 (West 2000)), which allows counterclaims to proceed even when otherwise barred by a statute of limitations, should have been applied to save Osman's responsive counterclaim for contribution that was admittedly time-barred by the two-year statute of limitations set forth in section 13-204 of the Code (735 ILCS 5/13-204 (West 2000)). We answer in the affirmative.

BACKGROUND

On July 8, 1997, Jesus Barragan was injured and his brother, Roberto Barragan, killed, when a masonry wall collapsed at the construction site where the two were working. At the time of the accident, the Barragans were employed by Masonry Construction Corporation (Masonry), a subcontractor on the project. Osman was the general contractor at the site, and Casco was the architect who designed the specifications for the project.

On July 15, 1997, Jesus Barragan filed his initial negligence complaint against Osman in the circuit court. Three days later, Veronica Barragan, the special administrator of Roberto's estate, joined Jesus in filing a first amended complaint, adding a wrongful-death claim.¹ Osman was served with the summons on the original complaint on July 25, 1997, and with the summons on the amended complaint on August 1, 1997. Plaintiffs filed a second amended complaint on September 11, 1997, naming Casco as a defendant. Casco was served with the second amended complaint on September 15, 1997.

On May 28, 1999, Osman filed a contribution claim against Masonry, but not against Casco at that time. On July 29, 1999, Casco filed a claim for contribution against both Osman and Masonry, and on December 7, 2000, Osman filed a counterclaim for contribution against Casco. Casco filed a motion objecting to Osman's counterclaim for contribution. The trial court denied the motion, but gave Casco until January 11, 2001, to answer or otherwise plead to Osman's counterclaim.

Settlement negotiations between plaintiffs and Osman ensued. On January 12, 2001, the trial court entered a good-faith finding approving a settlement agreement between plaintiffs and Osman that required Osman to pay plaintiffs $4.65 million. The agreement extinguished plaintiffs' causes of action against both Osman and Casco, but noted that Osman had retained its right to proceed with its counterclaim for contribution against Casco. In accordance with the settlement, the trial court dismissed plaintiffs' causes of action with prejudice, but ordered that Osman's counterclaim against Casco remain pending.

Casco eventually filed a motion pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2000)) to dismiss Osman's counterclaim for contribution. In its motion, Casco argued that Osman's counterclaim was barred by the two-year limitation period for contribution actions under section 13-204 of the Code because Osman filed its claim for contribution more than two years after the date it was served with process on the plaintiffs' underlying complaint. Section 13-204 bars contribution actions filed more than two years after a defendant is served with process in the underlying suit. 735 ILCS 5/13-204 (West 2000). Osman, on the other hand, maintained that section 13-207 of the Code is a saving provision that allows a counterclaim to be filed in response to a pleading, despite the two-year limit for filing contribution claims under section 13-204. The circuit court rejected Osman's position and dismissed the counterclaim for contribution.

Osman appealed, and a divided appellate court affirmed. 352 Ill.App.3d 33, 38-39, 287 Ill.Dec. 198, 815 N.E.2d 842. According to the appellate court majority, section 13-204 required that Osman file its contribution action within two years after being served with process in the underlying lawsuit. 352 Ill.App.3d at 37, 287 Ill.Dec. 198, 815 N.E.2d 842. Because Osman's action was a counterclaim, the subject of section 13-207, and Osman had owned the claim before it was barred, section 13-207 seemingly would apply to negate the two-year limitation of section 13-204. 352 Ill.App.3d at 37, 287 Ill.Dec. 198, 815 N.E.2d 842. But, according to the appellate court majority, section 13-207 was preempted by section 13-204 because section 13-207 is a statute of limitations and section 13-204 explicitly preempts "`all other statutes of limitation.'" 352 Ill.App.3d at 37, 287 Ill.Dec. 198, 815 N.E.2d 842, quoting 735 ILCS 5/13-204(c) (West 2000). The dissent, however, found the majority's analysis flawed. It concluded that section 13-207 is not a statute of limitations as the majority claimed; rather, it is a "savings clause" and has been repeatedly recognized as such by courts. 352 Ill.App.3d at 39-40, 287 Ill.Dec. 198, 815 N.E.2d 842 (McBride, J., dissenting). Thus, the two statutes were not in conflict, and section 13-207 should have been applied to save Osman's counterclaim. 352 Ill.App.3d at 39-40, 287 Ill.Dec. 198, 815 N.E.2d 842 (McBride, J., dissenting).

We subsequently allowed Osman's petition for leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

This appeal involves the propriety of the section 2-619 dismissal of Osman's contribution claim and the proper interpretation of two statutes. We conduct de novo review of both the dismissal of a claim and the interpretation of a statute. Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill.2d 1, 6, 289 Ill.Dec. 625, 820 N.E.2d 401 (2004).

As previously noted, the statutes at issue are sections 13-204 and 13-207 of the Code. Section 13-204 provides in relevant part as follows:

"(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.

(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(b), (c) (West 2000).

Section 13-207 provides that despite the expiration of an applicable statute of limitations period, counterclaims may be pled in a pending action as follows:

"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).

Osman argues that the plain language of the two sections allows them to be reconciled with one another and both enforced as written. Osman acknowledges that section 13-204 bars contribution claims filed more than two years after process is served in the underlying suit, but argues that section 13-207 plainly "saves" responsive counterclaims that would otherwise be barred by the statute of limitations. Casco, on the other hand, argues that the two statutes conflict, and that it was the intent of the legislature that the mandatory language of section 13-204 should be applied to bar all contribution actions, even contribution actions that also happen to be counterclaims.

Our primary objective in construing a statute is to ascertain and give effect to the intention of the legislature, and to this end all other rules of construction are subordinate. Paszkowski, 213 Ill.2d at 6, 289 Ill.Dec. 625, 820 N.E.2d 401; Sylvester v. Industrial Comm'n, 197 Ill.2d 225, 232, 258 Ill.Dec. 548, 756 N.E.2d 822 (2001). We determine intent by reading the statute as a whole and considering all relevant parts. Sylvester, 197 Ill.2d at 232, 258 Ill.Dec. 548, 756 N.E.2d 822. When the language is unambiguous, the law is to be enforced as enacted by the legislature. Paszkowski, 213 Ill.2d at 7, 289 Ill.Dec. 625, 820 N.E.2d 401. Where two statutes are allegedly in conflict, 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. Ferguson v. McKenzie, 202 Ill.2d 304, 311-12, 269 Ill.Dec. 188, 780 N.E.2d 660 (2001).

Initially, we must determine whether Osman...