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Barragan v. Casco Design Corp.9/22/2005
ng out of patient care. For that reason, we find it difficult to believe that the General Assembly did not also intend to bar a culpable party's claim for contribution if not filed within the same statutory four-year period *"). Moreover, Johnson intimated that its result might have been different if the defendant had not had any opportunity to file a responsive pleading before the statute of repose had expired, or if the case had involved a last-minute, eleventh-hour filing by the plaintiff to prevent the defendant from asserting a counterclaim. Johnson, 264 Ill. App. 3d at 837-38. But Johnson noted that the defendant had at least 11 months within which it could have filed a responsive counterclaim to the plaintiff's claim. In contrast to the defendant in Johnson, Osman arguably had no time within the limitation period of section 13-204 to file a responsive claim because Casco filed its contribution claim four days after Osman's two-year period under section 13-204 had expired. Although Osman did have ample opportunity to file a first-strike action for contribution against Casco, it was not until four days after Osman's right to bring a claim had expired that Casco created an adversarial relationship with Osman by filing its contribution claim. The mere fact that Osman could have initially filed a contribution claim without the protection of the saving provision does not detract from its ability to rely upon it later. See Mermelstein, 349 Ill. App. 3d at 804 (one of the purposes of the saving provision is to protect potential litigants who do not promptly file every claim they may have, but instead refrain from filing against a party until that party asserts an adversarial claim against them). At any rate, we reject Casco's argument that the rationale of Johnson should be extended to bar Osman's responsive counterclaim for contribution in the case at bar.
Finally, Casco argues that allowing section 13-207 to save counterclaims like the one filed by Osman would foil meaningful settlement negotiations and trial preparation. Casco, however, does not explain its contention any further, nor does it point to any way in which it was specifically harmed by allowing Osman's counterclaim to proceed other than that it might be potentially on the hook for its pro rata share of the settlement for the underlying claimant's injuries. Moreover, the record belies Casco's cursory claim that it was prejudiced in this case. After Osman filed its counterclaim for contribution against Casco, Casco was allowed to supplement discovery and have the trial date continued from February of 2001 to May of 2001.
CONCLUSION
For the foregoing reasons, we hold that the interplay between sections 13-204 and 13-207 allows Osman's otherwise time-barred counterclaim to proceed. Accordingly, we reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings..
Judgments reversed; cause remanded.
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