No. 2--00--1479

Plaintiff, State Farm Fire & Casualty Company, appeals thecircuit court's order that dismissed its complaint for contributionagainst defendant, Ronald Jones, individually and doing business asR.J. Masonry, Incorporated. Plaintiff contends that the courterred in holding that section 2(d) of the Joint TortfeasorContribution Act (the Act) (740 ILCS 100/2(d) (West 2000)) barredits action.

Plaintiff's complaint alleges the following. Plaintiffinsured Domanus Masonry, Incorporated (Domanus). Stan Heller hiredDomanus to work on his home. Domanus subcontracted with defendantfor part of the work. Defendant performed the work negligently,damaging Heller's home. Pursuant to its policy with Domanus,plaintiff paid Heller $57,104.65. Heller executed a release of allclaims against Domanus and "R.G. Masonry Wash," which the partiesagree refers to defendant.

Plaintiff then filed its complaint for contribution. Defendant moved to dismiss the complaint, and the trial courtgranted the motion. Plaintiff filed a timely notice of appeal.

Section 2(a) of the Act provides that where two or morepersons are potentially liable in tort for the same injury, a rightof contribution exists among them. 740 ILCS 100/2(a) (West 2000). Section 2(c) provides that a release given in good faith to onetortfeasor does not discharge any other tortfeasor from liability(but it may reduce the claim against that party by the settlementamount). 740 ILCS 100/2(c) (West 2000). The specific provisionsof the Act relevant to this case read as follows:

"(d) The tortfeasor who settles with a claimant pursuantto paragraph (c) is discharged from all liability for anycontribution to any other tortfeasor.

(e) A tortfeasor who settles with a claimant pursuant toparagraph (c) is not entitled to recover contribution fromanother tortfeasor whose liability is not extinguished by thesettlement." 740 ILCS 100/2(d), (e) (West 2000).

In its motion to dismiss, defendant argued that under section2(d) it had "settled with a claimant" and therefore was dischargedfrom any liability for contribution. The trial court dismissed thecomplaint, relying on Christmas v. Hughes, 187 Ill. App. 3d 453(1989). On appeal, plaintiff contends that the trial courtmistakenly held that by obtaining a release on behalf of defendant,plaintiff forfeited its right to seek contribution. Plaintiffargues that under section 2(e) it was required to obtain a releaseon defendant's behalf in order to pursue its contribution claim.

Defendant filed its motion pursuant to section 2--619(a)(9) ofthe Code of Civil Procedure (735 ILCS 5/2--619(a)(9) (West 2000)). A section 2--619(a)(9) motion admits all well-pleaded facts in thecomplaint and all reasonable inferences drawn therefrom. We reviewde novo a trial court's dismissal of a complaint under thatsection. Appelhans v. McFall, 325 Ill. App. 3d 232, 235 (2001).

The issue here is the proper construction of section 2 of theAct. When construing a statute, the language of the statute mustbe afforded its plain and ordinary meaning, and, where the languageis clear and unambiguous, the court must apply the statute withoutresort to further aids of statutory construction. Burger v.Lutheran General Hospital, 198 Ill. 2d 21, 40 (2001).

The plain meaning of section 2(e) is that a joint tortfeasorwho wishes to settle with a claimant and intends to seekcontribution from another tortfeasor must secure the othertortfeasor's release in order to preserve its right tocontribution. Both the supreme and appellate courts have held thata tortfeasor who settled without obtaining the release of a jointtortfeasor was barred from seeking contribution from thattortfeasor. Dixon v. Chicago & North Western Transportation Co.,151 Ill. 2d 108, 116 (1992); Guerrero v. Sebastian ContractingCorp., 321 Ill. App. 3d 32, 36-37 (2001); Fernandez v. Tempel SteelCorp., 277 Ill. App. 3d 330, 332-33 (1995).

Defendant argues, however, that section 2(d) provides that atortfeasor who has "settle[d] with a claimant" is discharged fromcontribution liability. 740 ILCS 100/2(d) (West 2000). Defendantcontends that because it was included in Heller's release, it"settled" with him and is not liable for contribution. Defendantcontends that cases such as Dixon and Guerrero are distinguishablebecause there the settlements occurred after the tort victims hadfiled suit. Defendant argues that because the settlement hereoccurred before any underlying suit was filed, the case is morelike Christmas.

If read broadly, sections 2(d) and 2(e) conflict. Undersection 2(e), releasing a joint tortfeasor is a precondition for asettling tortfeasor to maintain an action for contribution againstanother tortfeasor. However, under section 2(d), a tortfeasor whois deemed to have settled is not liable for contribution. Astatute is ambiguous if susceptible to two reasonable, conflictinginterpretations. Paciga v. Property Tax Appeal Board, 322 Ill.App. 3d 157, 161 (2001). When confronted with an ambiguousstatute, courts turn to rules of statutory construction. People v.Bowden, 313 Ill. App. 3d 666, 668 (2000).

One such rule is that a statute should be construed in amanner, to the extent possible, that gives meaning to every portionof it. Affiliated Bank v. Evans Tool & Manufacturing Co., 229 Ill.App. 3d 464, 467 (1992). A construction that renders any portionof a statute mere surplusage should be avoided. Evans v. GeneralMotors Corp., 314 Ill. App. 3d 609, 615 (2000). The resultadvanced by defendant violates this fundamental principle ofstatutory construction. Section 2(e) states, "A tortfeasor whosettles with a claimant pursuant to paragraph (c) is not entitledto recover contribution from another tortfeasor whose liability isnot extinguished by the settlement." (Emphasis added.) 740 ILCS100/2(e) (West 2000). On defendant's theory, the italicizedlanguage is meaningless. If the legislature intended a settlingparty to be barred from seeking contribution from all tortfeasors,there would have been no need to included this language. Hence, itis clear that section 2(e) contemplates a settling party seekingcontribution from another settling party.

On its face, section 2(d) appears to preclude the type ofcontribution contemplated by section 2(e). However, if so, thelanguage from section 2(e) that is italicized above becomesmeaningless. The settling party would be precluded from seekingcontribution from a settling tortfeasor, which is exactly the sameresult that would follow if the legislature omitted the italicizedlanguage from section 2(e). The only interpretation that giveseffect to both sections is that section 2(d) immunizes a settlingparty from contribution claims from nonsettling parties, whilesection 2(e) only precludes a settling party from seekingcontribution from nonsettling parties. Accordingly, we rejectdefendant's argument.

Defendant's proposed construction that section 2(d) appliesbefore the tort victim files suit and section 2(e) applies aftersuch a suit is filed is simply not supported by the statute's plainlanguage. Such a distinction appears nowhere in section 2. Whena statute is unambiguous, we may not depart from its plain meaningby reading into it exceptions, limitations, or conditions that thelegislature did not express. Petersen v. Wallach, 198 Ill. 2d 439,446 (2002).

Such a reading of the statute is also irrational. Inpractical terms, a tortfeasor who wanted to settle with a claimantand avoid a trial but still preserve a potential contribution claimwould be unable to settle until the claimant filed a lawsuit. However, as soon as the claimant's lawyer returned from thecourthouse with a file-stamped complaint the parties couldconsummate a settlement. Such a rule would frustrate the publicpolicy favoring settlements at an early stage and might makesettlement ultimately more difficult by requiring the tort victimto undergo the expense of hiring a lawyer and filing a complaint,even where the tortfeasor was not contesting liability.

Christmas, on which defendant chiefly relies, does not mandatea different result. That case involved only a relativelystraightforward application of section 2(d). After a collision inChicago, Christmas settled with the Yellow Cab Company and executeda covenant not to sue covering the company and its agents andemployees. Christmas then sued Hughes, who filed a contributionaction against the cab driver. While conceding that the driver wasan agent or employee of the cab company and thus covered by therelease, Hughes nevertheless contended that his contribution actionwas not barred. The appellate court rejected Hughes's arguments,holding that section 2(d) clearly barred the action. Christmas,187 Ill. App. 3d at 457.

Christmas involved a suit against the settling tortfeasor bya nonsettling tortfeasor. This case involves the oppositesituation: the settling tortfeasor suing a nonsettling tortfeasorwho was released from liability to the underlying claimant. Thus,Christmas does not apply. We note that the settlement in Christmasoccurred before Christmas sued the cab company. However, this factappears to have been entirely fortuitous and played no part in thecourt's analysis.

By settling with Heller and securing Jones's release, StateFarm did everything it needed to do to preserve its right tocontribution. The judgment of the circuit court of McHenry Countyis reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BOWMAN and KAPALA, JJ., concur.