Briseno v. Chicago Union Station Co.

Briseno v. Chicago Union Station Co.

Opinion

 [*903]   [**196]   [****426]  Defendants and third-party plaintiffs, Chicago Union Station Company, Tishman Construction Corporation of Illinois, Equitable Life Assurance Society of the United States and TJC Associates, Inc. (collectively Chicago Union), appeal from an order of the circuit court of Cook County which dismissed with prejudice their third-party contribution claim filed against National Wrecking Company (NWC). We affirm.

This matter arose from an underlying wrongful death and Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) lawsuit filed against Chicago Union by the estate of Jose Briseno (Briseno). Briseno, a NWC employee, was killed while working on the demolition of the old Union Station  [**197]   [****427]  building. The site [***2]  was being excavated in preparation for the construction of a new office complex owned, operated and/or managed by Chicago Union.

The demolition work was done pursuant to a written contract between Chicago Union and NWC. Pursuant to the terms of the contract, NWC purchased $ 30 million in comprehensive general and contractors liability insurance from Bituminous Casualty Company and an excess comprehensive general liability insurer (Bituminous). NWC paid all premiums due under the policy. The Bituminous policies which were issued to NWC named it as the insured and Chicago Union as additional insureds. Bituminous accepted coverage of the Briseno claim and engaged counsel to defend Chicago Union in the legal action.

Thereafter, Chicago Union, through Bituminous, filed a third-party action for contribution against NWC seeking to shift part of the loss from Bituminous to NWC. NWC moved for summary judgment on the basis that Chicago Union had no right to seek further recovery from NWC for a loss against which it had already been fully protected by NWC's purchase of insurance. NWC further argued that Bituminous had no right to manipulate the pleadings to shift the loss back to  [*904]   [***3]  NWC, a named insured and the purchaser of the policy issued to NWC. The trial court denied NWC's motion for summary judgment while holding that Chicago Union could only maintain its contribution action against NWC if Chicago Union's liability was not completely covered by the insurance policy purchased by NWC.

Prior to trial on the underlying wrongful death and Structural Work Act matter, Chicago Union and Briseno entered into a settlement agreement in the amount of $ 875,000 which was covered by the Bituminous insurance policy. After the Briseno claim was settled, the trial court granted NWC's motion to dismiss Chicago Union's third-party contribution claim. This appeal followed.

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