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Barragan v. Casco Design Corp.9/22/2005
f damages, each party had an opposing view of how those damages should be apportioned and each claimed that the fault of the accident rested solely with the other party. Casco even argued in the circuit court that it had evidentiary defenses to Osman's counterclaim that were "separate and apart from Casco's defenses to the plaintiff's action." Under the circumstances, we believe that Osman's claim was responsive to Casco's claim and was thus a true counterclaim within the meaning of section 13-207.
The saving provision comes into play in this case because Casco owned its contribution claim-the one that Osman countered-before Osman's counterclaim was barred. Osman was served with summons in the underlying suit on July 25, 1997, and therefore had until July 25, 1999, to file a contribution claim to avoid the bar of section 13-204. Casco, on the other hand, had until September 15, 1999, to file its contribution claim, and it did so on July 29, 1999, four days after any potential contribution claim that Osman might bring became time-barred by section 13-204. But at the time Osman's claim became barred under section 13-204, Casco "owned" the claim that formed the subject of Osman's counterclaim within the meaning of section 13-207. If section 13-207 is deemed controlling, it would allow Osman's responsive counterclaim for contribution to proceed despite the bar of section 13-204.
Having determined that section 13-207 comes into play in this case, we now turn to the purposes of the two statutes and then to the question of which statute controls the outcome here. Section 13-207 is a "saving" provision that allows a counterclaim to proceed despite the failure to comply with the appropriate statute of limitations period. Pape v. Byrd, 145 Ill. 2d 13, 30 (1991). This saving clause opens the door and exposes the initiating party to otherwise stale claims by sacrificing the protection of the statute of limitations. See Ogg v. City of Springfield, 121 Ill. App. 3d 25, 34 (1984). One purpose of section 13-207 is to protect parties who have shorter limitations periods than their opponents. See Patsis v. Zion-Benton Township High School, No. 126, 234 Ill. App. 3d 232, 235 (1992). Thus, it has been often noted that section 13-207 prevents plaintiffs from intentionally filing their claims as late as possible in order to preclude defendants from a reasonable opportunity to file their counterclaims within the original limitations period. See, e.g., Mermelstein v. Rothner, 349 Ill. App. 3d 800, 804 (2004); Cameron General Corp. v. Hafnia Holdings, Inc., 289 Ill. App. 3d 495, 506 (1997). Section 13-207 is also premised on the notion that potential litigants do not always promptly file every possible claim they may have; instead, some litigants may refrain from filing until after a claim is brought against them. See Mermelstein, 349 Ill. App. 3d at 804. Regardless of the original purpose of this section, however, courts have long recognized that application of section 13-207 is based on the principle that a plaintiff waives application of the statute of limitations with regard to potential counterclaims. See Mermelstein, 349 Ill. App. 3d at 804; Cameron General Corp., 289 Ill. App. 3d at 506; Ogg, 121 Ill. App. 3d at 33-34; Bethlehem Steel Corp., 863 F.2d at 512; but c.f. Johnson v. Core-Vent Corp., 264 Ill. App. 3d 833, 837 (1993). Moreover, a plaintiff is not free to withdraw this waiver at will; once application of the statute of limitations has been waived, it remains waived even if the claim which triggered the waiver is later dismissed. See, e.g., Mermelstein, 349 Ill. App. 3d at 804.
Casco emphasizes that section 13-204 provides that in instances where an underlying action has been filed by a claimant,
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