Kehoe v. Commonwealth Edison Co.

Kehoe v. Commonwealth Edison Co.

Opinion

 [*585]   [**1119]   [****841]  JUSTICE THEIS delivered the opinion of the court:

The issues raised by this appeal and cross-appeal stem from a dispute over a contribution  [**1120]   [****842]  action brought by Commonwealth Edison Company as owner of a construction site against its contractor, Abbott Contractors, Inc., in connection with a personal injury suit brought by Abbott employee Mark J. Kehoe against Commonwealth Edison. Abbott appeals the trial court's denial of its post-trial motion and its judgment ordering contribution by Abbott in the amount of $ 118,564.21. On appeal, as below, Abbott claims its purchase of insurance for Commonwealth Edison from Aetna Casualty & Surety Company (Aetna), pursuant to the parties' construction contract and in an amount sufficient to extinguish Commonwealth Edison's liability to Kehoe, operated as a legal bar to Commonwealth Edison's contribution action.

Commonwealth Edison cross-appeals [***2]  as to the amount of contribution owed, claiming the trial court erred when it determined the parties' contract did not provide for pure contribution and that Abbott's amount of contribution was limited to the amount of its liability under the Workers' Compensation Act. Commonwealth Edison maintains the parties' contract contains a waiver of the statutory limitation on employer liability and provides for pure contribution from Abbott in the amount of $ 1,326,313.51, the amount of the settlement corresponding to the percentage of liability attributed to Abbott for Kehoe's personal injury. For the following reasons, we reverse.

Abbott entered into a construction contract with Commonwealth Edison. By separate provision, the contract required Abbott to obtain an insurance policy for Commonwealth Edison in Commonwealth Edison's own name with limits of liability of $ 2 million. The construction contract also contains a provision calling for "Contractor's Indemnification," one clause of which attempts to obtain for Commonwealth Edison indemnification for its own negligence.

Pursuant to the construction contract, Abbott purchased from Aetna a separate owners and contractors protective ("OCP")  [***3]  liability  [*586]  insurance policy for Commonwealth Edison with Commonwealth Edison as the sole named insured and Abbott as the designated contractor. The OCP policy provided liability coverage for Commonwealth Edison in the amount of $ 3 million, $ 1 million in excess of the construction contract's requirement. At the same time, Abbott also obtained a commercial general liability ("CGL") policy with Aetna in its own name. Abbott's CGL policy's Schedule of Exclusions excludes from coverage the OCP policy. Abbott also had obtained workers' compensation insurance from another insurer.

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