                                                             SIXTH DIVISION
                                                             November 13, 2009


No. 1-09-0386

NOLA WILSON,                                          )      Appeal from the
                                                      )      Circuit Court of
                Plaintiff-Appellant,                  )      Cook County.
                                                      )
           v.                                         )
                                                      )
MICHAEL E. MOLDA,                                     )      No. 07 L 8517
                                                      )
                Defendant                             )
                                                      )
                                                      )
(Metrolift, Inc.,                                     )      Honorable
                                                      )      Jennifer Duncan-Brice,
                Defendant-Appellee).                  )      Judge Presiding.


      JUSTICE ROBERT E. GORDON delivered the opinion of the court:

      The sole issue on this appeal is whether subsection (b) of section 2-616 of

the Code of Civil Procedure applied to the facts of this case. 735 ILCS 5/2-616(b)

(West 2006). Subsection (b) is a relation-back statute that permits the addition of

certain claims, even after the statute of limitations has expired, if the claims relate

back to a timely filed claim. 735 ILCS 5/2-616(b) (West 2006). If subsection (b)

applied, then plaintiff Nola Wilson would have been able to pursue her suit against

defendant Metrolift, Inc., for injuries that she sustained when a vehicle driven by

                                           1
No. 1-09-0386

defendant Michael E. Molda, a Metrolift employee, collided with her vehicle.

Plaintiff sought to add defendant Metrolift to her suit after the two-year statute of

limitations had expired. The trial court found that plaintiff’s claim against

defendant Metrolift was time-barred, and granted defendant Metrolift’s motion to

dismiss.

      For the reasons stated below, we find that subsection (b) does not apply to

the facts at bar and that plaintiff’s cause of action against defendant Metrolift is

therefore time-barred. Accordingly, we affirm.

                                  BACKGROUND

      Plaintiff Nola Wilson and defendant Michael E. Molda were the drivers of

two vehicles that collided on August 17, 2005. On August 13, 2007, just a few

days before the two-year statute of limitations was about to expire, plaintiff filed

suit against defendant Molda for injuries sustained during the collision.

      Months after the statute of limitations had expired, plaintiff learned that the

defendant driver had been in the employ of defendant Metrolift, Inc. (Metrolift),

when the accident occurred. On February 14, 2008, defendant Molda stated, in

response to interrogatories by plaintiff, that he had been employed by defendant

Metrolift at the time of the accident. The relevant interrogatories were Nos. 14


                                           2
No. 1-09-0386

and 15, and they stated in full:

                    “14. Were you employed at the date of the

             occurrence? If so, state the name and address of your

             employer, and the date of employment and termination,

             if applicable. If your answer is in the affirmative, state

             the position, title and nature of your occupational

             responsibilities with respect to your employment.

                    ANSWER: YES. METROLIFT INC., [address

             and telephone number]. EMPLOYED 8/14/04 TO

             8/6/07. OUTSIDE SALES

             REPRESENTATIVE/TERRITORY MANAGER.

             VISITATION OF CONSTRUCTION SITES AND

             OFFICES.

                    15. What was the purpose and/or use for which

             the vehicle was being operated at the time of the

             occurrence?

                    ANSWER: CALLING ON CUSTOMER

             OFFICES AND VISITING CONSTRUCTION SITES


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No. 1-09-0386

             TO SEEK NEW BUSINESS FOR AERIAL LIFT

             EQUIPMENT RENTALS.”

In his interrogatory response, defendant Molda also stated that the vehicle was not

owned by either Metrolift or himself, but by Margo T. Clemens, and that the

vehicle “was sent to salvage” after the accident. In her appellate brief, plaintiff

asserts that Clemens is Molda’s mother.

      On March 10, 2008, plaintiff filed a motion for leave to amend her

complaint, which was granted on March 21, 2008. Plaintiff’s motion stated in

relevant part:

                    “4. On information and belief, at the time of the

             occurrence Defendant MOLDA’s vehicle was covered by

             an umbrella commercial insurance policy through his

             employer Metrolift, Inc., as Defendant, MOLDA, was in

             the course of his employment as an outside sales

             representative/territory manager.

                    5. Plaintifff, WILSON, recently received

             Defendant MOLDA’s Answers to Interrogatories and

             first became aware and /or placed on notice by


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No. 1-09-0386

             Defendant’s Answer to Interrogatories, specifically,

             Questions Number 14 and 15 [quoted above] in which he

             answered in the affirmative that he was specifically in

             the course of his employment at the time of the

             accident.”

      On April 23, 2008, plaintiff filed an amended complaint that added

Metrolift as a defendant, and added count II, which alleged that defendant

Metrolift was liable for defendant Molda’s negligence under the theory of

respondeat superior. On May 13, 2008, in his answer to plaintiff’s amended

complaint, defendant Molda denied any negligence, but “admitt[ed] that on the

date and approximate time stated [for the accident], defendant was acting within

the course of his employment for Metrolift.”

      On May 29, 2008, defendant Metrolift filed a motion to strike count II. This

motion said nothing about the statute of limitations. It sought to strike count II

only on the grounds that the allegations were not verified and that they made

irrelevant claims about insurance coverage. 735 ILCS 5/2-605(a), 5/2-615(a)

(West 2006). In the case at bar, the original complaint was verified, and the

amended complaint was not. Section 2-605(a) requires that if any pleading is


                                          5
No. 1-09-0386

verified, “every subsequent pleading must also be verified, unless verification is

excused by the court.” 735 ILCS 5/2-605(a) (West 2006).

      A scheduling order dated June 13, 2008, referred to two motions by

defendant Metrolift: (1) the motion, described above, to strike the paragraphs that

were unverified and referred to insurance; and (2) a motion to dismiss pursuant to

section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2006).

The appellate record does not contain a section 2-619 dismissal motion, filed prior

to June 13. The first section 2-619 dismissal motion in the appellate record is

dated July 18 and is described below.

      On June 23, 2008, plaintiff moved to vacate the scheduling order,

previously set by the trial court on June 13, in order to allow her time to take the

depositions of both defendant Molda and a representative of defendant Metrolift.

The trial court granted this motion on July 10, 2008.

      On July 18, 2008, defendant Metrolift filed an “amended motion to dismiss”

which asserted the statute of limitations as a bar. This amended motion sought

dismissal pursuant to section 2-619(a)(5) of the Code of Civil Procedure, which

permits dismissal if “the action was not commenced within the time limited by

law.” 735 ILCS 5/2-619(a)(5) (West 2006).


                                          6
No. 1-09-0386

      On December 3, 2008, after the relevant discovery was taken, plaintiff filed

its memorandum of law in opposition to defendant’s amended motion. In its

memorandum, plaintiff argued, first, that since defendants Metrolift and Molda

were jointly and severally liable under the theory of respondeat superior, the

timely filing against defendant Molda preserved plaintiff’s claim against defendant

Metrolift. In other words, plaintiff argued that her timely filing against one

defendant satisfied the statute of limitations with respect to the other defendant.

      Second, plaintiff argued that, even if the court found that the statute of

limitations was a bar, plaintiff’s claim against defendant Metrolift is saved by the

relation-back provision contained in subsection (b) of section 2-616 of the Code of

Civil Procedure. 735 ILCS 5/2-616(b) (West 2006).

      In a written opinion issued January 16, 2009, the trial court found that

plaintiff’s claim against defendant Metrolift was not saved by subsection (b). 735

ILCS 5/2-616(b) (West 2006). The trial court also found that the claim was not

saved by subsection (d), even though plaintiff had never argued that subsection (d)

applied. 735 ILCS 5/2-616(d) (West 2006). For these reasons, the trial court

found that plaintiff’s claim against defendant Metrolift was barred by the

applicable two-year statute of limitations, and granted defendant Metrolift’s


                                          7
No. 1-09-0386

motion to dismiss. 735 ILCS 5/13-202 (West 2006) (providing a two-year statute

of limitations for personal injury actions).

      On January 16, 20091, the trial court also issued a written order stating that,

pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), there was no just

reason to delay either enforcement or appeal. Supreme Court Rule 304(a) permits

a plaintiff in a multidefendant action to take an appeal from a final judgement as to

only one defendant, if the trial court makes an express finding that “there is no just

reason for delaying either enforcement or appeal.” 210 Ill. 2d R. 304(a). After

the trial court’s express finding, plaintiff filed a notice of appeal on February 11,

2009, and this appeal followed.

                                      ANALYSIS

                                  Standard of Review

      On appeal, plaintiff asks us to reverse the trial court’s order, issued pursuant

to section 2-619(a)(5) of the Code of Civil Procedure. 735 ILCS 5/2-619(a)(5)

(West 2006). “A motion to dismiss, pursuant to section 2-619 of the Code, admits


      1
          In the record on appeal, the order is stamped with a file date, but someone

wrote “18" in blue ink over the day of the month. In the notice of appeal, plaintiff

refers to the filing date of this order as January 26, 2009.

                                            8
No. 1-09-0386

the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense

or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v. Burciaga,

223 Ill. 2d 49, 50 (2006); Solaia Technology LLC v. Specialty Publishing Co., 221

Ill. 2d 558, 579 (2006). For a section 2-619 dismissal, our standard of review is de

novo. Solaia Technology, 221 Ill. 2d at 579.

      In addition, our supreme court has held that the standard of review is de

novo, when the question before the trial court was whether a new claim in an

amended complaint related back under subsection (b). Porter v. Decatur Memorial

Hospital, 227 Ill. 2d 343, 353 (2008), discussing 735 ILCS 5/2-616(b) (West

2004).

                      Timeliness of the Section 2-619 Motion

      “For a motion to be properly brought under section 2-619, the motion (1)

must be filed ‘within the time for pleading,’ and (2) must concern one of nine

listed grounds.” River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268,

275 (2009), quoting 735 ILCS 5/2-619(a) (West 2006).

      We cannot determine whether the first requirement of a timely filing was

satisfied, since we cannot determine from the appellate record when defendant

first moved pursuant to section 2-619. It appears from the trial court’s June 13,


                                          9
No. 1-09-0386

2008, scheduling order, that defendant Metrolift had already filed a section 2-619

motion, at some earlier, unspecified date. However, no such earlier motion

appears in the appellate record. The first section 2-619 motion in the appellate

record is dated July 18, 2008, and is labeled an “amended motion to dismiss,”

which would make us believe that there was an earlier section 2-619 motion that

the July 18 motion then amended.

      We do not find defendant’s motion defective on this ground for two reasons.

First, plaintiff did not claim either at the trial level or on this appeal that defendant

Metrolift failed to file its section 2-619 motion “within the time for pleading.”

735 ILCS 5/2-619(a) (West 2006). “Issues not raised are waived.” River Plaza,

389 Ill. App. 3d at 275 (finding that plaintiff had waived the issue of whether

certain defendants had filed a timely section 2-619 motion). Second, if there was

something necessary and material that was missing from the appellate record, it

was appellant’s burden to provide it. Luss v. Village of Forest Park, 377 Ill. App.

3d 318, 331 (2007); Peleton, Inc. v. McGivern’s, Inc., 375 Ill. App. 3d 222, 227

(2007); Smolinski v. Vojta, 363 Ill. App. 3d 752, 757 (2006).

      The second requirement for a section 2-619 motion is that it must concern

one of the nine grounds listed in section 2-619. River Plaza Homeowner’s Ass’n


                                           10
No. 1-09-0386

v. Healey, 389 Ill. App. 3d 268, 275 (2009), quoting 735 ILCS 5/2-619(a) (West

2006). Defendant Metrolift’s motion to dismiss concerned the fifth ground listed

in section 2-619, which permits dismissal if “the action was not commenced

within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2006); Porter, 227

Ill. 2d at 352 (“an assertion that a claim is barred by the statute of limitations is a

matter properly raised by a section 2-619 motion to dismiss”). Thus, we find that

defendant Metrolift’s dismissal motion satisfied both the timing and the subject

requirements for a section 2-619 motion.

                                 Parties’ Arguments

      The parties are in complete agreement that the time period limited by law

was two years from August 17, 2005, the date of the accident. 735 ILCS 5/13-202

(West 2006) (providing a two-year statute of limitations for personal injury

actions). There is also no dispute that defendant Metrolift was added to this action

as a named defendant, after this two-year period had already expired. The sole

issue on appeal is whether plaintiff’s timely filing against defendant Molda

preserved plaintiff’s claims against his unnamed employer.

      On appeal, plaintiff argues, first, that since defendants Metrolift and Molda

were jointly and severally liable under the theory of respondeat superior, the


                                           11
No. 1-09-0386

timely filing against defendant Molda preserved plaintiff’s claim against the

unnamed Metrolift. Simply put, plaintiff argues that her timely filing against one

defendant satisfied the statute of limitations with respect to the other defendant.

      Second, plaintiff argues that, even if this court finds that the statute of

limitations was a bar, plaintiff’s claim against defendant Metrolift is saved by the

relation-back provision contained in subsection (b) of section 2-616 of the Code of

Civil Procedure. 735 ILCS 5/2-616 (b) (West 2006).

                            Doctrine of Respondeat Superior

      Plaintiff’s first argument is that, since the employer was jointly and

severally liable under the theory of respondeat superior, the timely filing against

its employee preserved plaintiff’s claim against the employer.

      Since plaintiff can point to nothing in the statute of limitations itself or in

any case interpreting it2 that suggests that a filing against one defendant preserves

a claim against another defendant, plaintiff argues that this is a case of first


      2
          In her reply brief, plaintiff admits that she can cite “no case in which a

court permitted [a plaintiff] to add an employer as a defendant after the statute of

limitations on the basis that the employer’s liability is based on respondeat

superior.”

                                            12
No. 1-09-0386

impression and asks us to be the first and only court in Illinois history to hold that

the filing of a claim against an employee automatically preserves any claims

against his or her employer, so long as the claims arose out of the same transaction

and occurrence alleged against the employee and so long as they arose out of his

or her employment. We decline plaintiff’s invitation to rewrite the existing statute

of limitations, as we believe that is the job of the legislature. 735 ILCS 5/13-202

(West 2006) (providing a two-year statute of limitations for personal injury

actions). See also Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d

546, 558 (2009) (we must apply statutes as “they are written and cannot rewrite

them”).

      Here’s the problem with plaintiff’s argument. Both respondeat superior and

statute of limitations are concepts that have existed for hundreds of years, first in

England and then subsequently adopted by the American states. Keener v. Crull,

19 Ill. 189, 191-205 (1857) (Breese, J., concurring) (providing a brief history of

statutes of limitations in both England and America, starting with “the reign of

James the First”); Toledo, Wabash & Western Ry. Co. v. Durkin, 76 Ill. 395, 396

(1875) (noting the existence of the “doctrine of respondeat superior” in both the

courts of England and America); Bank of America, N.A., v. Bird, 392 Ill. App. 3d


                                          13
No. 1-09-0386

621, 626 (2009) (discussing the application of respondeat superior doctrine in

common law in England and in early Illinois), citing Turberville v. Stampe, 1 Salk

13, 1 Ld. Raym. 264 (1698). Both have been part of Illinois state law since the

1800's. Keener, 19 Ill. at 191-205; Toledo, Wabash & Western Ry., 76 Ill. at 396;

Bank of America, 392 Ill. App. 3d at 626, citing Moir v. Hopkins, 16 Ill. 313

(1855) and Tuller v. Voght, 13 Ill. 277, 285 (1851). When two legal doctrines

have existed for hundreds of years and when plaintiff can point to no court or

legislature that has changed these doctrines, then this can hardly be labeled a case

of first impression. It is much more likely that no one in all that time thought that

merging the two concepts was a good idea. We must follow in the footsteps of our

predecessors and find the same.

                               Relation-Back Sections

      Second, plaintiff argues that, even if this court finds that the statute of

limitations was a bar, plaintiff’s claim against defendant Metrolift is saved by the

relation-back provision contained in subsection (b) of section 2-616 of the Code of

Civil Procedure. 735 ILCS 5/2-616(b) (West 2006).

      The statute of limitations contains two relation-back provisions: subsection

(b) which permits a plaintiff, under certain circumstances, to add claims to an


                                          14
No. 1-09-0386

existing action; and subsection (d) which permits a plaintiff to name an additional

defendant in cases of mistaken identity. 735 ILCS 5/2-616 (b), (d) (West 2006);

Morton v. Madison County Nursing Home Auxiliary, 198 Ill. 2d 183, 187 (2001)

(subsection (d) “was designed to afford relief” in “instances of mistaken

identity”); Porter, 227 Ill. 2d at 358-60 (subsection (b) applies “where a party

seeks to add a new legal theory to a set of previously alleged facts” or to add “new

factual” allegations that bear a “‘sufficiently close relationship” in time, character

and events to the original allegations). The trial court held that neither subsection

saved plaintiff’s cause of action against defendant Metrolift.

      Plaintiff stated unequivocally in its reply brief to this court: “[p]laintiff has

never argued that this is a case of mistaken identity, or that relief is proper under

735 ILCS 5/2-616(d).” Thus, plaintiff stakes her appeal solely on the saving grace

of subsection (b). Nonetheless, we provide the full text of both subsections,

because a comparison of the wording of the two demonstrates why subsection (b)

does not apply.

      Plaintiff argues that a literal reading of subsection (b) permits relation-back

for all claims arising out of the originally named transaction or occurrence,

whether or not the defendant was originally named. Subsection (b) provides in


                                          15
No. 1-09-0386

full:

                 “The cause of action, cross claim or defense set up

           in any amended pleading shall not be barred by lapse of

           time under any statute or contract prescribing or limiting

           the time within which an action may be brought or right

           asserted, [(1)] if the time prescribed or limited had not

           expired when the original pleading was filed, and [(2)] if

           it shall appear from the original and amended pleadings

           that the cause of action asserted, or the defense or cross

           claim interposed in the amended pleading grew out of

           the same transaction or occurrence set up in the original

           pleading, even though the original pleading was

           defective in that it failed to allege the performance of

           some act or the existence of some fact or some other

           matter which is a necessary condition precedent to the

           right of recovery or defense asserted, if the condition

           precedent has in fact been performed, and for the

           purpose of preserving the cause of action, cross claim or


                                       16
No. 1-09-0386

             defense set up in the amended pleading, and for that

             purpose only, an amendment to any pleading shall be

             held to relate back to the date of the filing of the original

             pleading so amended.” (Emphasis added.) 735 ILCS

             5/2-616(b) (West 2006).

      By its terms, subsection (b) allows a claim to relate back if: (1) the original

complaint was filed within the limitations period; and (2) the new claim “grew out

of the same transaction or occurrence” as the one alleged in the original complaint.

 Subsection (b) does not speak of adding defendants, but only of adding claims.

      By contrast, subsection (d) speaks in terms of adding defendants. It

specifies when a plaintiff may add “[a] cause of action against a person not

originally named a defendant.” 735 ILCS 5/2-616(d) (West 2006). Subsection (d)

provides in full:

             “A cause of action against a person not originally named

             a defendant is not barred by lapse of time under any

             statute or contract prescribing or limiting the time within

             which an action may be brought or right asserted, if all

             the following terms and conditions are met: (1) the time


                                          17
No. 1-09-0386

           prescribed or limited had not expired when the original

           action was commenced; (2) the person, within the time

           that the action might have been brought or the right

           asserted against him or her plus the time for service

           permitted under Supreme Court Rule 103(b), received

           such notice of the commencement of the action that the

           person will not be prejudiced in maintaining a defense on

           the merits and knew or should have known that, but for a

           mistake concerning the identity of the proper party, the

           action would have been brought against him or her; and

           (3) it appears from the original and amended pleadings

           that the cause of action asserted in the amended pleading

           grew out of the same transaction or occurrence set up in

           the original pleading, even though the original pleading

           was defective in that it failed to allege the performance

           of some act or the existence of some fact or some other

           matter which is a necessary condition precedent to the

           right of recovery when the condition precedent has in


                                       18
No. 1-09-0386

             fact been performed, and even though the person was not

             named originally as a defendant. For the purpose of

             preserving the cause of action under those conditions, an

             amendment adding the person as a defendant relates back

             to the date of the filing of the original pleading so

             amended.” (Emphasis added.) 735 ILCS 5/2-616(d)

             (West 2006).

As subsection (d) expressly states, it applies only to cases involving “a mistake

concerning the identity of the proper party.” 735 ILCS 5/2-616(d) (West 2006).

Plaintiff, defendant and the trial court all agree that subsection (d) applies only in

cases of mistaken identity and thus it does not save plaintiff’s claims against

defendant Metrolift. Morton, 198 Ill. 2d at 187 (subsection (d) “was designed to

afford relief” in “instances of mistaken identity”).

      Instead of relying on subsection (d), plaintiff argues that subsection (b), by

its terms, applies to claims against any individual, so long as those claims arose

out of the same transaction or occurrence as the timely filed complaint. For the

following reasons, we are not persuaded by plaintiff’s interpretation of subsection

(b)


                                          19
No. 1-09-0386

      First, subsection (b), by its terms, applies only to the addition of “causes of

action, cross claim[s] or defense[s].” 735 ILCS 5/2-616(b) (West 2006).

Longnecker v. Loyola University Medical Center, 383 Ill. App. 3d 874, 887

(2008) (applies only to the addition of causes of action, cross-claims and

defenses).       “ ‘[S]tatutory language ought to be given its plain and ordinary

meaning.’ ” People v. Bair, 379 Ill. App. 3d 51, 59 (2008), quoting People ex rel.

Devine v. Sharkey, 221 Ill. 2d 613, 617 (2006). The subsection says nothing about

adding defendants, and we cannot write in what is not there. Roselle, 232 Ill. 2d at

558 (we must apply statutes as “they are written and cannot rewrite them”).

      Second, subsection (b), which speaks only of adding new claims, stands in

marked contrast to a subsection of the same statutory section, namely subsection

(d) which specifies when the addition of a new defendant is permitted. Basic rules

of statutory construction require us to read one statutory section as a consistent

whole. “ ‘[W]e construe statutes as a whole’ with each phrase construed in

connection with every other phrase.” Bair, 379 Ill. App. 3d at 59, quoting Sharkey,

221 Ill. 2d at 617; In re E.B., 231 Ill. 2d 459, 466 (2008) (we must construe a

statute “as a whole” and “in light of other relevant provisions of the statute”).

When interpreting a statute, we must consider its overall “ ‘legislative design.’ ”


                                          20
No. 1-09-0386

Bair, 379 Ill. App. 3d at 60, quoting People v. Murphy, 108 Ill. 2d 228, 234

(1985). Reading the statutory section as a consistent whole confirms our

conclusion that its subsection (b) was intended, as it was written, only for the

addition of claims, while its subsection (d) was intended, as it was written, for the

addition of defendants.

      Third, another section of the Code of Civil Procedure required the original

complaint to name all the parties, including all the defendants. Section 2-401

states that a complaint must provide “the names of all parties for and against

whom relief is sought.” 735 ILCS 5/2-401(c) (West 2006). Thus, when subsection

(b) speaks of adding claims, and only claims to a complaint, the presumption is

that the original complaint was otherwise properly filed and that it listed all the

required defendants, as it was compelled to do.

      Last but certainly not least, plaintiff fails to cite a case in which a court

permitted a plaintiff to use subsection (b) to add a new defendant. C.f. Porter, 227

Ill. 2d at 361 (where plaintiff did not seek to add a second hospital employee as a

defendant, his additional count against defendant hospital, based on the negligence

of this second hospital employee, related back under subsection (b)). See Roiser

v. Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer


                                          21
No. 1-09-0386

supporting legal authority, plaintiffs waived consideration of their theory); People

v. Ward, 215 Ill. 2d 317, 332 (2005) (“point raised in a brief but not supported by

citation to relevant authority *** is therefore forfeited.”).

      For these reasons, we are not persuaded by plaintiff’s interpretation of

subsection (b). 735 ILCS 5/2-616(b) (West 2006).

                                   CONCLUSION

      For the foregoing reasons, we affirm. Plaintiff’s cause of action against

defendant Metrolift is barred by the statute of limitations; and the relation-back

provision contained in subsection (b) of section 2-616 of the Code of Civil

Procedure (735 ILCS 5/2-616(b) (West 2006)) does not save it. We express no

opinion concerning any indemnification claim that defendant Molda may have



against Metrolift, since the trial court made no ruling concerning indemnification.

      Affirmed.

      J. GORDON and McBRIDE, JJ., concur.




                                          22
