specially concurring:
I agree with the majority that the 10-year statute of limitations in section 13 — 206 of the Code applies to Travelers’ cause of action in this case. 735 ILCS 5/13— 206 (West 2004). Moreover, I agree that the statute of limitations in section 13 — 204 of the Code is not applicable. 735 ILCS 5/13 — 204 (West 2004). I do not fully agree with the majority’s analysis of section 13 — 204, however, and thus I specially concur.
After discussing the plain language of section 13— 204, the majority notes that the section states that its limitation periods “ ‘shall apply to all actions for contribution or indemnity.’ ” 229 Ill. 2d at 472, quoting 735 ILCS 5/13 — 204(c) (West 2004). Further, the majority points out that, in general, the right to indemnity may be based upon an express contract or implied in law. 229 Ill. 2d at 472.
Notwithstanding the above, the majority concludes that section 13 — 204 is never applicable when the basis for indemnity rests on a written indemnity agreement. 229 Ill. 2d at 473. The majority asserts that “both sections 13 — 204(a) and 13 — 204(b) apply only when the action involves allocation of damages for implied indemnification.” 229 Ill. 2d at 474. Moreover, the majority states that “section 13 — 204 is applicable to claims for implied indemnity involving allocation of damages in connection with an underlying tort claim for injury to person or property, regardless of whether subsection (a) or (b) is at issue. Section 13 — 204 is not applicable to claims for express indemnification based on a written contract.” 229 Ill. 2d at 476.
Supporting its position, the majority points out that the term “indemnity” is used in the disjunctive with the term “contribution” in both sections 13 — 204(a) and 13 — 204(b). 229 Ill. 2d at 473. Moreover, the majority notes that section 13 — 204(a) refers to predicate actions “ ‘seeking recovery for injury to or death of a person or injury or damage to property.’ ” 229 Ill. 2d at 473, quoting 735 ILCS 5/13 — 204(a) (West 2004).
Considering the above, the majority addresses United General Title Insurance Co. v. AmeriTitle, Inc., 365 Ill. App. 3d 142 (2006), which the Bowmans cite in support of their position that section 13 — 204 applies to Travelers’ cause of action in this case. 229 Ill. 2d at 470. The majority notes that United General held that section 13— 204(a) applied, even though the basis for the underlying claim in the case arose from a written agreement. The majority states that “United General erroneously assumed that section 13 — 204(a) applies to all actions seeking indemnification, regardless of whether the basis of the indemnification is expressed in contract or implied in tort.” 229 Ill. 2d at 473-74.
I agree with the majority inasmuch as it holds that section 13 — 204(a) cannot apply in a situation where the predicate action does not seek recovery for injury to or death of a person or injury or damage to property. However, that is not the issue in this case. Indeed, section 13 — 204(a) does not apply at all in this case, as it expressly applies only “[i]n instances where no underlying action *** has been filed by a claimant.” 735 ILCS 5/13 — 204(a) (West 2004).
In this case, an underlying action was filed and thus section 13 — 204(b) would apply, barring the exceptions described in section 13 — 204(c), as it expressly states that it is applicable in “instances where an underlying action has been filed by a claimant.” 735 ILCS 5/13— 204(b) (West 2004). Section 13 — 204(c), however, provides that subsection (b) only applies “to the extent that the claimant in an underlying action could have timely sued the party from whom contribution or indemnity is sought at the time such claimant filed the underlying action.” 735 ILCS 5/13 — 204(c) (West 2004). Because the claimants in the underlying action in this case could not have sued defendants directly, then, section 13 — 204(b) would not apply by its own terms. 229 Ill. 2d at 474.
While the majority’s analysis correctly recognizes that the plain language of section 13 — 204 makes clear that the statute does not apply in this case, it also goes further, finding that section 13 — 204 cannot apply in any situation where an action is asserted for indemnity based upon a written contract. I think this goes too far. While United General may have incorrectly interpreted section 13 — 204(a) in a situation involving a written contract, that does not necessarily mean that section 13 — 204(b) cannot apply where the indemnity sought arises from a written contract.
Section 13 — 204(b) is the relevant section here and unlike section 13 — 204(a) it contains no language limiting its application to actions seeking recovery for injury to or death of a person or injury or damage to property. Additionally, while the majority focuses on United General, it is not the only case to have suggested that section 13 — 204 can apply, even where the indemnity sought arises from a written contract.
In Medrano v. Production Engineering Co., 332 Ill. App. 3d 562 (2002), the appellate court considered a situation where an underlying plaintiff (Medrano) was injured while working with a punch press machine. The manufacturer of that machine, Production Engineering Company (Production), had a contract with Medrano’s employer, Cam Fran Tool Company (Cam Fran), which provided that Cam Fran was to indemnify Production for any claims arising out of work performed under the contract. Medrano, 332 Ill. App. 3d at 564. This contract further made clear that any action taken to enforce the contract must be commenced within one year after the cause of action arises. Medrano, 332 Ill. App. 3d at 564.
After Medrano filed suit against Production, Production filed a third-party complaint against Cam Fran seeking indemnification for all costs it expended in relation to Medrano’s underlying action. Medrano, 332 Ill. App. 3d at 564. Eventually, an issue arose as to whether or not Production timely filed its third-party complaint against Cam Fran. In considering this issue, the appellate court held that while section 13 — 204 provides the default statute of limitations for indemnity actions, it did not apply in that particular case because the parties involved had contracted for a different limitations period. Medrano, 332 Ill. App. 3d at 574-75 (“It is true that section 13 — 204 will ‘preempt’ other statutes of limitation, but it does not apply here. However, this is not because Medrano could not timely sue Cam Fran. Rather, section 13 — 204 is inapplicable because the parties in the instant case formed and agreed upon a contractual limitations period, which, as long as it is reasonable, does not allow them to fall back upon the default-statute of limitations” (emphasis in original)).
Similarly, in Guzman v. C.R. Epperson Construction, Inc., 196 Ill. 2d 391 (2001), this court considered the applicability of section 13 — 204. In Guzman, the plaintiffs in the underlying action (the Guzmans) filed suit against C.R. Epperson Construction, Inc. (Epperson). Guzman, 196 Ill. 2d at 393. The Guzmans had a contract with Epperson for the construction of a home and they alleged Epperson breached that contract by constructing a home that contained numerous design and construction defects. Guzman, 196 Ill. 2d at 393. Faced with this suit, Epperson filed a third-party complaint against various subcontractors. Guzman, 196 Ill. 2d at 394. This complaint, which sounded in breach of contract, was amended to include both express and implied indemnity claims against each third-party defendant. Guzman, 196 Ill. 2d at 394. While Guzman does not specifically discuss what contractual language Epperson relied upon in filing its indemnity claims, the fact that the opinion notes that Epperson’s complaint contained “express” indemnity claims indicates that at least some of them were contractual. In considering the effect of section 13 — 204, this court noted that while the section previously only applied to claims for contribution, it was amended “to include indemnity claims within its purview.” Guzman, 196 Ill. 2d at 401. Further, this court found that “the General Assembly amended section 13 — 204 to include indemnity actions such as that involved here.” Guzman, 196 Ill. 2d at 402.
Both Medrano and Guzman suggest, then, that section 13 — 204 can apply in situations involving third-party indemnity claims premised on written contracts. Moreover, nothing in section 13 — 204 itself suggests the contrary. In fact, section 13 — 204(c) suggests that the statute broadly applies, as it states that “[t]he applicable limitations period contained in subsection (a) or (b) shall apply to all actions for contribution or indemnity and shall preempt, as to contribution and indemnity actions only, all other statutes of limitation or repose.” 735 ILCS 5/13 — 204(c) (West 2004). This indicates that section 13— 204 anticipates that one or more statutes of limitations could arguably apply in certain situations. It further indicates that when faced with such a situation, section 13 — 204 should be considered first, as long as certain exceptions also found in section 13 — 204(c) do not operate to negate the applicability of the statute.
In sum, I believe that the plain language of section 13 — 204 itself makes clear that the statute does not apply in this case. Accordingly, I agree that the 10-year statute of limitations in section 13 — 206 of the Code applies here. Unlike my colleagues, however, I think that it is unwise to completely foreclose the possibility that section 13 — 204 can apply to an indemnity claim based upon a written contract. Because the plain language of section 13 — 204 fully supports the resolution in this particular case, it is altogether unnecessary to declare, as the majority does, that “both sections 13 — 204(a) and 13 — 204(b) apply only when the action involves allocation of damages for implied indemnification.” 229 Ill. 2d at 474. This is particularly so where the language of the statute indicates no such result and this court has suggested just the opposite. See Guzman, 196 Ill. 2d at 391; see also Medrano, 332 Ill. App. 3d at 574-75.
JUSTICE KARMEIER joins in this special concurrence.