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Barragan v. Casco Design Corp.9/22/2005
ed 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; Sylvester v. Industrial Comm'n, 197 Ill. 2d 225, 232 (2001). We determine intent by reading the statute as a whole and considering all relevant parts. Sylvester, 197 Ill. 2d at 232. When the language is unambiguous, the law is to be enforced as enacted by the legislature. Paszkowski, 213 Ill. 2d at 7. 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 (2001).
Initially, we must determine whether Osman satisfied the requirements of section 13-207 so as to bring it into play in this case. Casco argues that Osman did not hold or own a setoff to any claim "owned by the plaintiff" as required by section 13-207 because Casco was not a "plaintiff" for purposes of that section.
We disagree with Casco's interpretation. It overlooks that section 2-401(d) of the Code (735 ILCS 5/2-401(d) (West 2000)) deems a party bringing a counterclaim to be a "plaintiff" for purposes of the Code. Specifically, it provides that " nless a contrary meaning is indicated, wherever used in this Act and in rules adopted pursuant hereto the term `plaintiff' includes counterclaimants and third-party plaintiffs, and the term `defendant' includes third-party defendants and parties against whom relief is sought by counterclaim." 735 ILCS 5/2-401(d) (West 2000). Thus, when Casco filed its contribution claim against Osman, which was technically a "counterclaim"under section 2-608 of the Code (735 ILCS 5/2-608 (West 2000)), Casco became a "plaintiff" vis-a-vis Osman for purposes of section 13-207. This is borne out by the few Illinois cases that have considered counterclaims among co-defendants. See Benckendorf v. Burlington Northern R.R., 112 Ill. App. 3d 658 (1983); Dignan v. Midas-International Corp., 65 Ill. App. 3d 188 (1978); Eddy v. Yellow Cab Co., 434 F. Supp. 447 (N.D. Ill. 1977). These cases uniformly stand for the proposition that a co-defendant initiating an adversarial relationship by filing a cross-claim against another co-defendant is considered a "plaintiff" and the co-defendant filing a counterclaim in response is considered a "defendant" for purposes of the saving clause.
In Benckendorf, the plaintiff filed a two-count complaint against Burlington and Lee to recover for injuries he sustained when a Burlington train collided with an auto driven by Lee and in which the plaintiff was a passenger. Burlington filed a counterclaim against Lee for contribution, and Lee responded by filing a counterclaim against Burlington. Burlington argued that L
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