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SECOND DIVISION
August 24, 2004

No. 1-01-2557

JUSTICE CAHILL delivered the opinion of the court:

This case involves the interplay between two statutes: section 13-204 of the Code of CivilProcedure (Code), governing claims for contribution and indemnity (735 ILCS 5/13-204 (West2000)), and section 13-207 of the Code, governing counterclaims and setoff (735 ILCS 5/13-207(West 2000)).

Defendant Osman Construction Corporation (Osman) appeals the dismissal of itscounterclaim for contribution against defendant Casco Design Corporation (Casco). The trialcourt determined that Osman's counterclaim was barred by the two-year statute of limitations insection 13-204 (735 ILCS 5/13-204 (West 2000)). Osman appeals, arguing that the trial courtshould have applied section 13-207, which allows counterclaims barred by time limits to proceed(735 ILCS 5/13-207 (West 2000)). We affirm.

Plaintiff Jesus Barragan was injured and his brother Roberto Barragan was killed when amasonry wall collapsed at a construction site where they were working on July 8, 1997. Theywere employed by Masonry Construction Corporation, a subcontractor of Osman, the generalcontractor. Casco was the architect. The original lawsuit was a negligence action filed by Jesusagainst Osman on July 15, 1997. Veronica Barragan, special administrator for the estate ofRoberto, joined Jesus in filing a first amended complaint on July 18, 1997, adding a wrongfuldeath claim and Casco as a defendant. Osman and Casco were served with the first amendedcomplaint on August 6, 1997. Casco filed a counterclaim for contribution against Osman on July29, 1999, about one week before the limitations period expired. Osman filed a counterclaim forcontribution against Casco on December 7, 2000. A settlement agreement followed, requiringOsman to pay the Barragans $4.65 million without contribution from Casco.

Casco moved to dismiss Osman's counterclaim under section 2-619 of the Code (735ILCS 5/2-619(a)(5) (West 2000) (involuntary dismissal of a complaint for not being commencedwithin the statutory time limit)). Casco argued that Osman's counterclaim was barred by the two-year limitation for contribution actions under section 13-204 of the Code (735 ILCS 5/13-204(West 2000)) because Osman was served with the original complaint in the underlying action onAugust 6, 1997, but did not file its counterclaim for contribution against Casco until December 7,2000, well beyond the two-year limit. The trial court agreed and granted Casco's motion todismiss. Osman appeals.

The question on review is whether the trial court should have allowed Osman'scounterclaim to proceed under section 13-207. We review de novo a dismissal based on a statuteof limitations under section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2000)). Broadnax v. Morrow, 326 Ill. App. 3d 1074, 1077, 762 N.E.2d 1152 (2002).

We begin our analysis with the language and the legislative history of the two statutes.

The General Assembly enacted the precursor of section 13-207 (Ill. Rev. Stat. 1981, ch.83, par. 18) in 1982 (Pub. Act 82-280, eff. July 1, 1982). The statute was amended one yearlater (Pub. Act 83-707, eff. September 23, 1983), but the changes were not substantive. Thepurpose of section 13-207 is to prevent plaintiffs from intentionally filing their claims as late aspossible, depriving the defendants of a reasonable opportunity to file counterclaims within theoriginal limitations period. Cameron General Corp. v. Hafnia Holdings, Inc., 289 Ill. App. 3d495, 506, 683 N.E.2d 1231 (1997). Section 13-207 provides:

"A defendant may plead a set-off or counterclaim barred by the statute oflimitation, while held and owned by him or her, to any action, the cause of whichwas owned by the plaintiff or person under whom he or she claims, before suchset-off or counterclaim was so barred, and not otherwise." 735 ILCS 5/13-207(West 2000).

The General Assembly enacted the precursor of section 13-204 in 1981 (Ill. Rev. Stat.1981, ch. 83, par. 15.2) and amended it substantively in 1995 (Pub. Act 88-538, eff. January 1,1995) to include indemnity claims within its purview. Guzman v. C.R. Epperson Construction,Inc., 196 Ill. 2d 391, 401, 752 N.E.2d 1069 (2001). The amended version mandated the triggerdate for filing a third-party action as "the date of service or of knowledge of the wrongful actionor omission, whichever is later." Guzman, 196 Ill. 2d at 401. The two-year statute of limitationsapplies to all actions for contribution or indemnity except medical malpractice claims. Lucey v.Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349, 364, 703 N.E.2d 473 (1998). Section 13-204 provides, in relevant part: "(b) In instances where an underlying action has been filed by a claimant, no actionfor contribution or indemnity may be commenced more than 2 years after the partyseeking contribution or indemnity has been served with process in the underlying action ormore than 2 years from the time the party, or his or her privy, knew or should reasonablyhave 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 toall actions for contribution or indemnity and shall preempt, as to contribution andindemnity actions only, all other statutes of limitation or repose, but only to the extent thatthe claimant in an underlying action could have timely sued the party from whomcontribution or indemnity is sought at the time such claimant filed the underlying action, orin instances where no underlying action has been filed, the payment in discharge of theobligation of the party seeking contribution or indemnity is made before any suchunderlying action would have been barred by lapse of time." 735 ILCS 5/13-204 (West2000).

The parties agree that section 13-204, if it applies, bars Osman's counterclaim forcontribution. The first step in reconciling the two statutes is to apply the principles of statutoryconstruction. "The primary rule of statutory construction is to ascertain and give effect to theintent of the legislature." Beetle v. Wal-Mart Associates, Inc., 326 Ill. App. 3d 528, 531-32, 761N.E.2d 364 (2001), citing People v. Owens, 323 Ill. App. 3d 222, 228, 753 N.E.2d 513 (2001).The best indication of legislative intent is the plain language in the statute. Metzger v. DaRosa,209 Ill. 2d 30, 34-35, 805 N.E.2d 1165 (2004). The court is to give a statute its full effectwithout resorting to other aids of statutory construction, if the language itself is clear. Metzger,209 Ill. 2d at 35.

Where a conflict arises, "a court has a duty to interpret the statutes in a manner that avoidsan inconsistency and gives effect to both statutes, where such an interpretation is reasonablypossible." Beetle v. Wal-Mart Associates, Inc., 326 Ill. App. 3d 528, 532, 761 N.E.2d 364(2001). In construing conflicting statutes, "the court may consider the reason and necessity forthe legislation, the evils it was designed to remedy, and the objects and purposes the GeneralAssembly sought to achieve." Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 103, 787 N.E.2d771 (2003). "Where there are two statutory provisions, one of which is general and designed toapply to cases generally, and the other is particular and relates to only one subject, the particularprovision must prevail[,] *** especially where the particular provision is later in time ofenactment." Bowes v. City of Chicago, 3 Ill. 2d 175, 205, 120 N.E.2d 15 (1954). A laterenactment prevails over an earlier one as the later expression of legislative intent. Jahn v. TroyFire Protection District, 255 Ill. App. 3d 933, 941, 627 N.E.2d 1216 (1994).

Here, by applying the plain language of the two statutes, we believe section 13-204prevails. The Barragans filed the underlying action on July 15, 1997. Osman and Casco wereserved with notice of the first amended complaint on August 6, 1997. Under section 13-204,Osman had to file its action for contribution within two years after being served with process,that is, no later than August 6, 1999. Yet because Osman's action was a counterclaim, the subjectof section 13-207, and Osman owned the claim before it was barred, section 13-207 seeminglywould apply. But section 13-204(c) preempts section 13-207: "The applicable limitations period[two years] *** shall preempt, as to contribution and indemnity actions only, all other statutes oflimitation ***." 735 ILCS 5/13-204(c) (West 2000). Osman's counterclaim was an action forcontribution. The two-year limitation in section 13-204 applies to such actions and cannot beoverridden by a different limitations provision.

To avoid this result, Osman argues that section13-207 is not a statute of limitations as thatterm is generally understood. More precisely, Osman contends, it is an exception to a statute oflimitations and, as such, section 13-204 does not preempt it. We disagree. In construing statutes,the general use of a term should not be held to defeat the intended effect of a statute. Dignan v.Midas-International Corp., 65 Ill. App. 3d 188, 192, 382 N.E.2d 559 (1978).

Osman concedes in its appellate brief that Casco filed its claim "well before the lastminute." While it is arguable that filing a counterclaim one week before the statutory deadline isnot "well" before the last minute, the timing does not foreclose a response. The legislative intentof section 13-207 was to dissuade plaintiffs from intentionally filing their complaints at the lastminute to block counterclaims. Cameron, 289 Ill. App. 3d at 506. Osman was not deprived of areasonable opportunity to file its counterclaim. Both statutes can be given their full effect becausethe circumstances underlying section 13-207 are not present here. Our conclusion that Osmanwas not deprived of a reasonable opportunity to file its counterclaim within the section 13-204time limit is further supported by the fact that Osman waited until December 7, 2000, four monthsafter the deadline, to file. The filing occurred shortly before a settlement agreement that requiredOsman to pay $4.65 million was reached.

Even if we determined that the plain language and legislative intent of the statutes wereinsufficient to resolve the conflicts between them, section 13-204 prevails because it is morespecific. Section 13-204 applies to specific kinds of counterclaims. Third-party counterclaims forcontribution and indemnity are a subset of the general category of counterclaims. See Johnson v.Core-Vent Corp., 264 Ill. App. 3d 833, 836-37, 636 N.E.2d 726 (1993) (a specific statuteprohibiting actions against dentists afer the expiration of a two-year statute of limitations or afour-year statute of repose prevailed over section 13-207, a more general statute).

Section 13-204 also is the more recent in terms of enactment, having been amended in1995. Section 13-207 has not been substantively amended since it took effect in 1982. Had theGeneral Assembly wished to alter the interplay between these two statutes, it could have done soin 1995.

Osman bases its arguments on cases that predate the amendment of section 13-204 andinterpret section 13-207 as a general savings statute. Osman cites Benckendorf v. BurlingtonNorthern R.R., 112 Ill. App. 3d 658, 445 N.E.2d 837 (1983), to argue that no reported decisionshold that his counterclaim falls outside the saving provision of section 13-207. Osman furtherrelies on Benckendorf to fashion an argument requiring different applications of the statutesdepending on whether the actions are among, for example, "passive coparties," "nominalcounterclaimants" and "crossclaimants." Osman cites Ogg v. City of Springfield, 121 Ill. App. 3d25, 458 N.E.2d 1331 (1984), to argue that section 13-207 saves its claim because it was filed as acounterclaim against Casco's previous counterclaim.

There is no doubt that the courts in Benckendorff and Ogg properly analyzed section 13-207, but both predate section 13-204, as amended. We cannot ascertain what those courts wouldhave done if they were required to read the two statutes together and reconcile them. Under thefacts before us here, section 13-204 prevails and the trial court properly dismissed Osman'scounterclaim for contribution.

The judgment of the trial court is affirmed.

Affirmed.

BURKE, J., concurs.

McBRIDE, J., dissents.

JUSTICE MCBRIDE, dissenting:

I respectfully dissent from the majority's decision for the following reasons. First, themajority concludes that there is a conflict between section 13-204 and section 13-207. In myopinion, there is no conflict; section 13-204 is a statute of limitations; section 13-207 is not. Section 13-207 is a specific exception to the statute of limitations. Bethelem Steel Corp. v.Chicago Eastern Corp., 863 F.2d 508, 512 (7th Cir. 1988). Our courts have continually referredto section 13-207 as a "savings" clause. Benckendorf, 112 Ill. App. 3d at 663; Ogg, 121 Ill. App.3d at 34; In re Estate of Rice, 154 Ill. App. 3d 591, 593, 507 N.E.2d 78 (1987); Cameron, 289 Ill.App. 3d at 506.

Under section 13-207, a party waives its statute of limitations defense against acounterclaim brought by an opponent, as long as the counterclaim was not barred when the causeof action forming the basis of the claims in the primary complaint arose. Cameron, 289 Ill. App.3d at 506. The savings clause of section 13-207 opens the door and exposes the initiating partyto otherwise stale claims. In re Estate of Rice, 154 Ill. App. 3d at 593.

Second, the language of section 13-207 is broad and it applies to "any action" (735 ILCS5/13-207 (West 2000)). In re Estate of Rice, 154 Ill. App. 3d at 593. It should therefore beapplied in this case.

Third, the majority dismisses the reasoning of Benckendorf and Ogg because they weredecided before the amendment to section 13-204. However, those decisions involvedcontribution claims and specifically whether the statute of limitations barred those otherwise stalecontribution claims. These cases are on point and, in my opinion, control. Further, we canpresume that prior to enacting the contribution statute of limitations, the legislature acted withknowledge of the prevailing case law. Hansen v. Caring Professionals, Inc., 286 Ill. App. 3d 797,805-06, 676 N.E.2d 1349 (1997); Clark v. Han, 272 Ill. App. 3d 981, 989, 651 N.E.2d 549(1995). This is further evidence that the legislature never intended to have section 13-207preempt section 13-204.

More recently, another division of the First District held that a defendant's counterclaimwas not barred by the one year statute of limitations contained in section 13-217 of the Code ofCivil Procedure (735 ILCS 5/13-217 (West 1994)), for actions voluntarily dismissed, but notrefiled within one year of that voluntary dismissal. Mermelstein v. Rothner, No. 1-03-2891 (June18 2004). Mermelstein reaffirmed that section 13-207 "is based on the theory that plaintiff waivesapplication of the statute of limitations with regard to potential counterclaims." Mermelstein, slipop. at 5.

The majority says section 13-204 "preempts" section 13-207. It further holds that section13-204 cannot be overridden by a different limitations provision. Slip op. at 6. Although thelanguage of the statute states "no action for contribution *** may be commenced more than 2years after the party seeking contribution has been served with process" (735 ILSC 5/13-204(West 2000)), it only preempts other statutes of limitations. Because section 13-207 is not astatute of limitations, it is not preempted by section 13-204. The majority's analysis is flawedbecause it has made section 13-207 something that it is not, a statute of limitations.

Therefore, I would reverse the decision of the trial court dismissing Osman's counterclaim,and I dissent.