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Barragan v. Casco Design Corp.9/22/2005
ee's counterclaim was not filed within the two-year limitation period of section 13-202 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 13-202) and was therefore barred. The appellate court disagreed that the claim was ultimately barred, finding that section 13-207 " `saves' otherwise barred claims." Benckendorf, 112 Ill. App. 3d at 663. In so concluding, the court rejected Burlington's argument that section 13-207 can never apply where a defendant has filed a counterclaim against another defendant. Benckendorf, 112 Ill. App. 3d at 663.
Benckendorf also distinguished Dignan v. Midas-International Corp., 65 Ill. App. 3d 188 (1978), and Eddy v. Yellow Cab Co., 434 F. Supp. 447 (N.D. Ill. 1977), two cases on which Casco relies to support its argument in the instant case. In both Dignan and Eddy, a defendant sought to sue another defendant in the case by way of a cross-claim even though the statute of limitations had expired on the claim and the opposing defendant had not first filed any pleading against the defendant filing the cross claim. Both courts rejected arguments that these kind of first-strike cross-claims are saved by section 13-207 of the Code. Dignan, 65 Ill. App. 3d at 191-92; Eddy, 434 F. Supp. at 448. Dignan noted that the party seeking to invoke the "saving statute" sought relief for an otherwise stale claim from passive co-defendants and was therefore " `in no sense a defendant, but is the moving, acting litigant who seeks relief from the court.' " Dignan, 65 Ill. App. 3d at 192, quoting Hahn v. Gates, 102 Ill. App. 385, 392 (1902). Similarly, in Eddy, the court affirmed the dismissal of a time-barred, first-strike counterclaim against another co-defendant, noting that the co-defendant who filed the counterclaim was "an active litigant seeking relief for her injuries, as a cross-claimant, from a passive co-party. As such, she is not protected by [the saving] statute." Eddy, 434 F. Supp. at 448.
The distinction drawn in both Dignan and Eddy between passive and active co-defendants was important to the court in Benckendorf. Benckendorf found that in both of the cited cases, "the parties against whom counterclaims had been filed were passive co-defendants who had not, as in this case, brought actions against the counterclaimants." Benckendorf, 112 Ill. App. 3d at 663.
We believe that Benckendorf, Dignan and Eddy are consistent, well reasoned and supportive of the conclusion that Casco was a "plaintiff" and Osman a "defendant" for purposes of section 13-207. As in Benckendorf, the counterclaims between co-defendants here placed them in adversarial relationship, and Osman's counterclaim was not against a passive co-defendant, but was instead a responsive counterclaim. It therefore falls under the language of the statute and its plain intent to allow responsive claims.
Casco contends that Osman's counterclaim for contribution was not really an adversarial counterclaim because both counterclaims simply sought an equitable apportionment of damages to avoid the consequences of joint and several liability. Casco cites no authority on point to support its argument that a responsive counterclaim for contribution against another co-defendant is not a "counterclaim" within the meaning of the statute, and we find its argument unpersuasive. Instead, it has been held that section 13-207 permits a "defendant" to plead "a set off or counterclaim * to any action," even counterclaims not factually related to the original claim. Bethlehem Steel Corp. v. Chicago Eastern Corp., 863 F.2d 508, 511-12 (7th Cir. 1988). But here, Osman's counterclaim was directly related and responsive to Casco's contribution claim. While it is true that both claims sought an equitable apportionment o
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