No. 2--00--1479		

_________________________________________________________________ 

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

STATE FARM FIRE AND CASUALTY	)	Appeal from the Circuit Court

COMPANY, as Subrogee of Domanus	)	of McHenry County.

Masonry, Inc.,                  )

                                )

     Plaintiff-Appellant,       )

                                )  No. 00--L--154

v.			)

	)

RONALD JONES, Indiv. and        )

d/b/a R.J. Masonry, Inc.,       )  Honorable	 

	)	Michael T. Caldwell,

	Defendants-Appellees.	)	Judge, Presiding.

_________________________________________________________________

	JUSTICE GROMETER delivered the opinion of the court:

	Plaintiff, State Farm Fire & Casualty Company, appeals the

circuit court's order that dismissed its complaint for contribution

against defendant, Ronald Jones, individually and doing business as

R.J. Masonry, Incorporated.  Plaintiff contends that the court

erred in holding that section 2(d) of the Joint Tortfeasor

Contribution Act (the Act) (740 ILCS 100/2(d) (West 2000)) barred

its action.

	Plaintiff's complaint alleges the following.  Plaintiff

insured Domanus Masonry, Incorporated (Domanus).  Stan Heller hired

Domanus to work on his home.  Domanus subcontracted with defendant

for 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 all claims against Domanus and "R.G. Masonry Wash," which the parties agree refers to defendant.

	Plaintiff then filed its complaint for contribution. 

Defendant moved to dismiss the complaint, and the trial court

granted the motion.  Plaintiff filed a timely notice of appeal.

	Section 2(a) of the Act provides that where two or more

persons are potentially liable in tort for the same injury, a right

of contribution exists among them.  740 ILCS 100/2(a) (West 2000). 

Section 2(c) provides that a release given in good faith to one

tortfeasor does not discharge any other tortfeasor from liability

(but it may reduce the claim against that party by the settlement

amount).  740 ILCS 100/2(c) (West 2000).  The specific provisions

of the Act relevant to this case read as follows:

		"(d) The tortfeasor who settles with a claimant pursuant

to paragraph (c) is discharged from all liability for any

contribution to any other tortfeasor.

		(e) A tortfeasor who settles with a claimant pursuant to

paragraph (c) is not entitled to recover contribution from

another tortfeasor whose liability is not extinguished by the

settlement."  740 ILCS 100/2(d), (e) (West 2000).

	In its motion to dismiss, defendant argued that under section

2(d) it had "settled with a claimant" and therefore was discharged

from any liability for contribution.  The trial court dismissed the

complaint, relying on Christmas v. Hughes, 187 Ill. App. 3d 453 (1989).  On appeal, plaintiff contends that the trial court

mistakenly held that by obtaining a release on behalf of defendant,

plaintiff forfeited its right to seek contribution.  Plaintiff argues that under section 2(e) it was required to obtain a release on defendant's behalf in order to pursue its contribution claim.

	Defendant filed its motion pursuant to section 2--619(a)(9) of

the 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 the

complaint and all reasonable inferences drawn therefrom.  We review

de novo a trial court's dismissal of a complaint under that section.  Appelhans v. McFall, 325 Ill. App. 3d 232, 235 (2001). 

	The issue here is the proper construction of section 2 of the

Act.  When construing a statute, the language of the statute must

be afforded its plain and ordinary meaning, and, where the language

is clear and unambiguous, the court must apply the statute without

resort 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 tortfeasor

who wishes to settle with a claimant and intends to seek

contribution from another tortfeasor must secure the other

tortfeasor's release in order to preserve its right to

contribution.  Both the supreme and appellate courts have held that

a tortfeasor who settled without obtaining the release of a joint

tortfeasor was barred from seeking contribution from that

tortfeasor.  Dixon v. Chicago & North Western Transportation Co., 151 Ill. 2d 108, 116 (1992); Guerrero v. Sebastian Contracting Corp., 321 Ill. App. 3d 32, 36-37 (2001); Fernandez v. Tempel Steel Corp., 277 Ill. App. 3d 330, 332-33 (1995).

	Defendant argues, however, that section 2(d) provides that a

tortfeasor who has "settle[d] with a claimant" is discharged from contribution liability.  740 ILCS 100/2(d) (West 2000).  Defendant

contends that because it was included in Heller's release, it

"settled" with him and is not liable for contribution.  Defendant

contends that cases such as Dixon and Guerrero are distinguishable because there the settlements occurred after the tort victims had

filed suit.  Defendant argues that because the settlement here

occurred before any underlying suit was filed, the case is more

like Christmas.

	If read broadly, sections 2(d) and 2(e) conflict.  Under section 2(e), releasing a joint tortfeasor is a precondition for a

settling tortfeasor to maintain an action for contribution against

another tortfeasor.  However, under section 2(d), a tortfeasor who

is deemed to have settled is not liable for contribution.  A

statute is ambiguous if susceptible to two reasonable, conflicting

interpretations.  Paciga v. Property Tax Appeal Board, 322 Ill. App. 3d 157, 161 (2001).  When confronted with an ambiguous

statute, 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 a

manner, to the extent possible, that gives meaning to every portion

of it.  Affiliated Bank v. Evans Tool & Manufacturing Co., 229 Ill. App. 3d 464, 467 (1992).  A construction that renders any portion

of a statute mere surplusage should be avoided.  Evans v. General Motors Corp., 314 Ill. App. 3d 609, 615 (2000).  The result advanced by defendant violates this fundamental principle of

statutory construction.  Section 2(e) states, “"A tortfeasor who

settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.”"  (Emphasis added.) 740 ILCS 100/2(e) (West 2000).  On defendant's theory, the italicized

language is meaningless.  If the legislature intended a settling

party to be barred from seeking contribution from all tortfeasors,

there would have been no need to included this language.  Hence, it

is clear that section 2(e) contemplates a settling party seeking

contribution from another settling party.

	On its face, section 2(d) appears to preclude the type of

contribution contemplated by section 2(e).  However, if so, the

language from section 2(e) that is italicized above becomes

meaningless.  The settling party would be precluded from seeking

contribution from a settling tortfeasor, which is exactly the same

result that would follow if the legislature omitted the italicized

language from section 2(e).  The only interpretation that gives

effect to both sections is that section 2(d) immunizes a settling

party from contribution claims from nonsettling parties, while

section 2(e) only precludes a settling party from seeking

contribution from nonsettling parties.  Accordingly, we reject

defendant's argument.

	Defendant's proposed construction that section 2(d) applies before the tort victim files suit and section 2(e) applies after

such a suit is filed is simply not supported by the statute's plain

language.  Such a distinction appears nowhere in section 2.  When

a statute is unambiguous, we may not depart from its plain meaning

by reading into it exceptions, limitations, or conditions that the legislature did not express.  Petersen v. Wallach, 198 Ill. 2d 439, 446 No. 89947, slip op. at 5-6 (January 25, (2002).

	Such a reading of the statute is also irrational.  In

practical terms, a tortfeasor who wanted to settle with a claimant

and avoid a trial but still preserve a potential contribution claim

would be unable to settle until the claimant filed a lawsuit. 

However, as soon as the claimant's lawyer returned from the

courthouse with a file-stamped complaint the parties could

consummate a settlement.  Such a rule would frustrate the public

policy favoring settlements at an early stage and might make

settlement ultimately more difficult by requiring the tort victim

to 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 mandate a different result.  That case involved only a relatively

straightforward application of section 2(d).  After a collision in

Chicago, Christmas settled with the Yellow Cab Company and executed

a covenant not to sue covering the company and its agents and

employees.  Christmas then sued Hughes, who filed a contribution

action against the cab driver.  While conceding that the driver was

an agent or employee of the cab company and thus covered by the

release, Hughes nevertheless contended that his contribution action

was 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 by a nonsettling tortfeasor.  This case involves the opposite situation: the settling tortfeasor suing a nonsettling tortfeasor

who was released from liability to the underlying claimant.  Thus, Christmas does not apply.  We note that the settlement in Christmas occurred before Christmas sued the cab company.  However, this fact

appears to have been entirely fortuitous and played no part in the

court's analysis.

	By settling with Heller and securing Jones's release, State

Farm did everything it needed to do to preserve its right to

contribution.  The judgment of the circuit court of McHenry County

is reversed, and the cause is remanded for further proceedings.

	Reversed and remanded.

	BOWMAN and KAPALA, JJ., concur.