 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Barragan v. Casco Design Corp.9/22/2005
r 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. 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. 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. 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, 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 (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 (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 (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 own
Page 1 2 3 4 5 6 7 8 9 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|