{ "id": 8448779, "name": "THE HOME INSURANCE COMPANY, Appellant, v. THE CINCINNATI INSURANCE COMPANY, Appellee", "name_abbreviation": "Home Insurance v. Cincinnati Insurance", "decision_date": "2004-12-02", "docket_number": "No. 97873", "first_page": "307", "last_page": "328", "citations": [ { "type": "official", "cite": "213 Ill. 2d 307" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "301 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257168 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "53" }, { "page": "53" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0049-01" ] }, { "cite": "105 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141899 ], "year": 1985, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0486-01" ] }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "396" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "150 Ill. App. 3d 472", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503349 ], "year": 1986, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0472-01" ] }, { "cite": "572 N.E.2d 962", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "216 N.E.2d 665", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "34 Ill. 2d 424", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2877607 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/34/0424-01" ] }, { "cite": "288 Ill. App. 3d 678", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596943 ], "year": 1997, "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0678-01" ] }, { "cite": "325 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570565 ], "year": 2001, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0477-01" ] }, { "cite": "146 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597145 ], "year": 1991, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0001-01" ] }, { "cite": "729 F.2d 1132", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1938931 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1134" }, { "page": "1134" } ], "opinion_index": 0, "case_paths": [ "/f2d/729/1132-01" ] }, { "cite": "85 Cal. Rptr. 2d 627", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1999, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "72 Cal. App. 4th 1063", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 872573 ], "year": 1999, "pin_cites": [ { "page": "1078" } ], "opinion_index": 0, "case_paths": [ "/cal-app-4th/72/1063-01" ] }, { "cite": "198 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474244 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "955" }, { "page": "955" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0950-01" ] }, { "cite": "213 Ill. App. 3d 319", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2605994 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "321" }, { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0319-01" ] }, { "cite": "82 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226629 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "1005" }, { "page": "1005" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/1003-01" ] }, { "cite": "183 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209975 ], "year": 1998, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0317-01" ] }, { "cite": "197 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259095 ], "year": 2001, "pin_cites": [ { "page": "475", "parenthetical": "Harrison, C.J., specially concurring, joined by Kilbride, J." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0466-01" ] }, { "cite": "209 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461402 ], "year": 2004, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0248-01" ] }, { "cite": "183 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209971 ], "year": 1998, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0342-01" ] }, { "cite": "208 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463159 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "328" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0325-01" ] }, { "cite": "325 Ill. App. 3d 267", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569775 ], "weight": 8, "year": 2001, "pin_cites": [ { "page": "274", "parenthetical": "it is well established that excess insurers cannot seek equitable contribution from primary insurers" }, { "page": "274" }, { "page": "274" }, { "page": "274" }, { "page": "275" }, { "page": "274" }, { "page": "275", "parenthetical": "the rule in Schal Bovis would unfairly protect Auto Owners from paying for the benefit it received - release from liability" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0267-01" ] }, { "cite": "315 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980732 ], "weight": 11, "year": 2000, "pin_cites": [ { "page": "363" }, { "page": "363", "parenthetical": "same" }, { "page": "369-70" }, { "page": "363" }, { "page": "363" }, { "page": "363" }, { "page": "363" }, { "page": "368", "parenthetical": "a finding that a party is not in charge of the work is different from a finding that injuries did not arise out of that party's work" }, { "page": "364" }, { "page": "363-64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0353-01" ] }, { "cite": "345 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739664 ], "weight": 14, "pin_cites": [ { "page": "48" }, { "page": "45-46" }, { "page": "45-46" }, { "page": "46" }, { "page": "46" }, { "page": "47" }, { "page": "47" }, { "page": "48" }, { "page": "47" }, { "page": "48" }, { "page": "44" }, { "page": "45-46" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0040-01" ] } ], "analysis": { "cardinality": 1164, "char_count": 37951, "ocr_confidence": 0.765, "pagerank": { "raw": 9.736194014300529e-07, "percentile": 0.9818317593033417 }, "sha256": "2e5df64a3f822bb57993f9c6a8c3e7b0dd5c37e140d56f1aa02902c6030ca7d3", "simhash": "1:13fa0ff268054560", "word_count": 6193 }, "last_updated": "2023-07-14T18:23:20.061705+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE HOME INSURANCE COMPANY, Appellant, v. THE CINCINNATI INSURANCE COMPANY, Appellee." ], "opinions": [ { "text": "JUSTICE THOMAS\ndelivered the opinion of the court:\nThe Home Insurance Company (Home) brought a two-count declaratory judgment action against the Cincinnati Insurance Company (Cincinnati), attempting to recover money paid to settle an underlying personal injury action. On cross-motions for summary judgment, the circuit court of Cook County granted Cincinnati\u2019s motion on both counts and denied Home\u2019s motion. The appellate court, with one justice dissenting, affirmed the circuit court. 345 Ill. App. 3d 40. We allowed Home\u2019s petition for leave to appeal (177 Ill. 2d R. 315). We also allowed Liberty Mutual Insurance Company to file an amicus brief in support of Home (155 Ill. 2d R. 345(a)). For the reasons that follow, we affirm in part and reverse in part.\nBACKGROUND\nAllied Asphalt Paving Company (Allied) was the general contractor for a renovation project on the Kennedy Expressway. Allied subcontracted work on the project to Aldridge Electric Company, Inc. (Aldridge), and Western Industries, Inc. (Western). Matthew Fisher, an employee of Aldridge, was injured while installing lights in an underpass on the project. The accident occurred at 2 a.m., when an intoxicated driver drove through the construction area and struck Fisher.\nFisher sued numerous parties, including Allied and Western. In his third amended complaint, Fisher alleged that Allied and Western had agreed to assume responsibility for all safety aspects of the project, and that Allied and Western breached their duty to provide proper safety signs, traffic cones, barricades, warning lights, flagmen, and other traffic control devices at the location where he was working.\nAt the time of the accident, Allied was named as an additional insured under two insurance policies: a commercial liability policy issued to Western by Cincinnati; and a policy issued to Aldridge by Home. Each policy contained a $1 million limit of liability for each occurrence. Additionally, each policy contained the following endorsement:\n\u201cWHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of \u2018your work\u2019 for that insured by or for you.\u201d\nThe term \u201cyour work\u201d was defined as follows under each policy:\n\u201ca. Work or operations performed by you or on your behalf, and\nb. Materials, parts or equipment furnished in connection with such work or operations.\u201d\nIt is undisputed that Home\u2019s policy was an excess policy, while Cincinnati\u2019s was a primary policy.\nAllied tendered the defense of the Fisher action to both Cincinnati and Home. In a June 23, 1997, letter, Cincinnati accepted the defense of Allied, but reserved its rights to deny coverage with respect to any work or conduct that was not performed by Western on behalf of Allied. In a September 14, 1999, letter, Home accepted the defense of Allied. However, Home\u2019s acceptance letter stated that Home \u201cwill agree to share the cost of Allied\u2019s defense and indemnity with the insurance carrier for Western *** on a 50/50 basis subject to a review of both policies and any reservation of rights.\u201d\nIn October 1999, Cincinnati settled Fisher\u2019s claim against Western for $40,000. Thereafter, Fisher agreed to settle his suit against Allied for $600,000. Home paid $500,000 toward this settlement, but Cincinnati paid only $100,000 of the total settlement amount.\nOn November 8, 2000, Home filed the present declaratory judgment action, asserting theories of equitable subrogation and equitable contribution. Count I sought a declaration that Cincinnati was the sole primary insurer responsible for the defense of Allied and was thus liable to Home for the entire amount Home paid toward the settlement. Count II sought a declaration that it was entitled to recover from Cincinnati the amount it paid in excess of its pro rata share of the settlement.\nThereafter, Home took the evidence depositions of Richard Johnson, Allied\u2019s defense counsel, and David Cunningham, Cincinnati\u2019s claim manager. Johnson testified in his deposition that by the time of trial, Fisher\u2019s theory had evolved to rely more heavily on the fact that the injury was caused by a lack of a flagger at the site. Flagging was not Western\u2019s responsibility. Rather, Western was responsible for properly placing barricades at the site. It was Johnson\u2019s guess that Western would probably not be found liable at all \u2014 this was because none of the evidence showed a lack of compliance with Illinois Department of Transportation specifications on barricades. He assessed the probability of a finding of liability against Western at no more than 20%. But Johnson also did not think much of the lack-of-a-flagman theory as it pertained to Aldridge\u2019s work, stating that it was \u201coff the wall\u201d and \u201calmost bordered on being ludicrous.\u201d Accordingly, Johnson assessed the potential that Allied would be found liable at all at only 10 to 20%.\nCunningham testified in his deposition that he agreed with Johnson\u2019s assertion that there was up to a 20% chance that Allied would be found liable, that the verdict potential was between two to three million, and that $600,000 was a reasonable settlement amount. Cunningham also admitted that Cincinnati\u2019s payment of $40,000 to settle on behalf of Western was based at least in part on the possibility that Western might lose its pending summary judgment motion and be found liable at trial. He refused to give a percentage of the possibility of Western being found liable, stating instead that he felt there was a \u201cslim\u201d chance. By settling on behalf of Western, Cunningham wanted to insure that no finding would ever be made that Western was liable. Cunningham admitted that if the jury had made a finding of liability against Western on the verdict form, Cincinnati\u2019s policy, listing Allied as an additional insured, would be triggered. But Cunningham believed Cincinnati would owe only for the portion of damages that arose out of Western\u2019s work. He had no idea, however, how that would be determined at trial, and he had never seen a case where fault was apportioned between insurance companies as he suggested it should be. He acknowledged that such \u201carising out of\u2019 language, as is contained in Cincinnati\u2019s policy, is read very broadly by courts in favor of coverage.\nCunningham further testified in his deposition that he refused to pay any more than $100,000 toward the settlement. At the time of his refusal, he offered to arbitrate the allocation issue.\nHome filed the affidavit of Joan Kenchik, stating that she was the claim manager for Home that handled the Fisher settlement. She attempted on several occasions to persuade Cincinnati to contribute more than $100,000 toward the settlement, but it refused. Home was thus forced to pay all of the remainder of the settlement amount. Home made this payment, however, on the condition that Cincinnati agree to arbitrate Home\u2019s claims. According to her affidavit, it was Home\u2019s position that it was entitled to at least equal contribution from Cincinnati or, depending upon on whether the Cincinnati policy contained an \u201cother insurance\u201d clause, complete indemnification from Cincinnati. The affidavit does not indicate whether or not Home ever communicated to Cincinnati that it was entitled to full reimbursement for the settlement as an excess insurer. Kenchik\u2019s affidavit further notes that, while Cincinnati agreed to arbitrate at the time of settlement, it later refused her requests to arbitrate.\nHome filed as an exhibit a letter written by Kenchik to Cunningham dated October 21, 1999, which was shortly after the settlement. In the letter, Home agreed to arbitrate the issues of indemnification. Home also filed a response letter from Cunningham dated October 27, 1999, stating that Cincinnati had not unqualifiedly agreed to arbitrate. It also asked Home to specify the legal basis on which it was seeking reallocation of the settlement award.\nThe circuit court granted Cincinnati\u2019s motion for summary judgment and denied Home\u2019s cross-motion for summary judgment. The court found that Home was not entitled to equitable contribution from Cincinnati because Home\u2019s policy was excess and Cincinnati\u2019s policy was primary, and excess and primary insurers do not insure the same risk. The court also denied the equitable subrogation claim, finding that Home waived it by not asserting that it had no duty to defend Allied and by not asserting that it was an excess insurer until filing the declaratory judgment action.\nWith one justice dissenting, the appellate court affirmed the circuit court\u2019s result (345 Ill. App. 3d at 48), but did not address the circuit court\u2019s waiver theory to resolve the subrogation claim of count I. Instead, the appellate court employed the equitable contribution analysis of the Appellate Court, First District, in Schal Bovis, Inc. v. Casualty Insurance Co., 315 Ill. App. 3d 353 (2000), to resolve the equitable subrogation count. 345 Ill. App. 3d at 45-46. In discussing whether Home and Cincinnati were liable for the \u201csame loss,\u201d a necessary element to maintain an equitable contribution claim, the appellate court adopted the analysis of Schal Bovis, which held that the policies at issue in that case insured \u201cdifferent risks\u201d for purposes of equitable contribution because each insurer insured the additional insured only to the extent that liability arose out the work of the respective underlying named insureds. 345 Ill. App. 3d at 45-46, citing Schal Bovis, 315 Ill. App. 3d at 363. The appellate court here found that because the policies did not insure the \u201csame risk,\u201d they therefore did not cover the \u201csame loss\u201d for purposes of an equitable subrogation count. 345 Ill. App. 3d at 46. Accordingly, it found that Home was not entitled to equitable subrogation as a matter of law. 345 Ill. App. 3d at 46.\nThe appellate court then turned to the equitable contribution claim of count II. It noted that it had already found that the policies did not insure the same risk because of the respective \u201carising out of \u2018your work\u2019 \u201d endorsements. 345 Ill. App. 3d at 47. It therefore found that summary judgment was properly granted to Cincinnati on this count. 345 Ill. App. 3d at 47. In so finding, the appellate court refused to adopt the reasoning of the Third District of the appellate court in Cincinnati Insur once Co. v. River City Construction Co., 325 Ill. App. 3d 267 (2001), a case which declined to follow the Schal Bovis rule given the circumstances before it. As an alternative basis for its ruling granting summary judgment on count II, the appellate court noted that the policies did not insure the same risk because one was an excess policy and the other was a primary policy. 345 Ill. App. 3d at 48.\nANALYSIS\nSummary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2002); Hall v. Henn, 208 Ill. 2d 325, 328 (2003); Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). The standard of review for the entry of summary judgment is de novo. Hall, 208 Ill. 2d at 328. We may affirm a grant of summary judgment on any basis appearing in the record, regardless of whether the lower courts relied upon that ground. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004); Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 475 (2001) (Harrison, C.J., specially concurring, joined by Kilbride, J.).\nI. Equitable Contribution\nWe will first address Home\u2019s arguments on the equitable contribution issue. It essentially argues that the appellate court read the requirements of an equitable contribution claim too narrowly.\nWe begin our analysis with a general discussion of contribution in the context of multiple insurers. The terms \u201ccontribution,\u201d \u201cindemnification\u201d and \u201csubrogation\u201d are often used interchangeably, but there are distinct differences between them. 15 Couch on Insurance 3d \u00a7 217:5 (rev. 2004). The remedies of contribution and indemnity are mutually exclusive, and contribution is prohibited where a party has a right to indemnity. 18 C.J.S. Contribution \u00a7 26, at 30 (1990). Contribution as it pertains to insurance law is an equitable principle arising among coinsurers which permits one insurer who has paid the entire loss, or greater than its share of the loss, to be reimbursed from other insurers who are also liable for the same loss. Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d 317, 322 (1998); Royal Globe Insurance Co. v. Aetna Insurance Co., 82 Ill. App. 3d 1003, 1005 (1980); 15 Couch on Insurance \u00a7 217:5 (rev. 2004). Contribution applies to multiple, concurrent insurance situations and is only available where the concurrent policies insure the same entities, the same interests, and the same risks. Royal Globe, 82 Ill. App. 3d at 1005; 15 Couch on Insurance 3d \u00a7 218:3 (rev. 2004). These elements must be met before the insurance can be considered concurrent or double. 15 Couch on Insurance 3d \u00a7 218:3 (rev. 2004). Accordingly, when two insurers cover separate and distinct risks there can be no contribution among them. 15 Couch on Insurance 3d \u00a7 218:3 (rev. 2004).\nIn contrast to contribution, subrogation and indemnification are devices for placing the entire burden for a loss on the party ultimately liable or responsible for it and by whom it should have been discharged. 15 Couch on Insurance 3d \u00a7 217:5 (rev. 2004). Indemnification differs from subrogation in that the entity seeking indemnification does so in its own right, while in the latter the subrogee succeeds to another\u2019s right to payment. 15 Couch on Insurance 3d \u00a7 217:5 (rev. 2004).\nIt is well settled that the doctrine of equitable contribution is not applicable to primary/excess insurer issues. River City, 325 Ill. App. 3d at 274 (it is well established that excess insurers cannot seek equitable contribution from primary insurers); Schal Bovis, 315 Ill. App. 3d at 363 (same); Home Indemnity Co. v. General Accident Insurance Co. of America, 213 Ill. App. 3d 319, 321 (1991); United States Fidelity & Guaranty Co. v. Continental Casualty Co., 198 Ill. App. 3d 950, 955 (1990); Reliance National Indemnity Co. v. General Star Indemnity Co., 72 Cal. App. 4th 1063, 1078, 85 Cal. Rptr. 2d 627, 635 (1999); 15 Couch on Insurance 3d \u00a7 218:7 (rev. 2004). This is because by definition the policies do not cover the same risks \u2014 the protections under the excess policy do not begin until those of the primary policy cease. Home Indemnity, 213 Ill. App. 3d at 321; United States Fidelity & Guaranty, 198 Ill. App. 3d at 955.\nHere, it is undisputed that Home\u2019s policy was excess and Cincinnati\u2019s was primary. Applying the well-settled rule, we find that Home could not recover on its equitable contribution claim because the two policies insured different risks. The very case that Home places its greatest reliance on in this appeal \u2014 River City \u2014 found that an excess insurer cannot recover from a primary insurer under an equitable contribution theory because they insure different risks. See River City, 325 Ill. App. 3d at 274. Undaunted, Home claims that \u201cmany courts have held [that] the rule is narrower \u2014 that is, primary insurers may not obtain equitable contribution from excess insurers.\u201d For this proposition, Home cites Schal Bovis, 315 Ill. App. 3d at 369-70, Home Indemnity, 213 Ill. App. 3d 319, and United States Fidelity & Guaranty Co., 198 Ill. App. 3d 950. But none of these cases stand for the proposition for which Home cites them. Instead, each of these cases noted that equitable contribution is not applicable to excess/primary insurer issues, and in Schal Bovis, the court specifically stated that \u201can excess insurer cannot seek equitable contribution from a primary insurer.\u201d Schal Bovis, 315 Ill. App. 3d at 363. Home fails to cite any Illinois case (or any other reported case for that matter) that has held that the rule is narrower.\nThe fact that Home was an excess carrier and Cincinnati was a primary carrier is enough to end the analysis on the equitable contribution claim. But Home engages in a lengthy argument as to whether the two insurers insured the same risk in view of the \u201carising out of \u2018your work\u2019 \u201d endorsement language in the respective policies. It contends that the appellate court should not have relied upon Schal Bovis to find a lack of identity in the risks insured, but instead should have relied upon River City and found that the two policies insured the same risk. It maintains that by not doing so, the appellate court created an irreconcilable conflict between the First and Third Districts. Because the instant appellate court considered the \u201carising out of \u2018your work\u2019 \u201d endorsement as an independent and indeed the main basis for denying the claim and because it applied the same analysis to the equitable subrogation claim, we will address Home\u2019s argument on this point.\nRelying on Schal Bovis, the appellate court concluded that the risk that plaintiff might be injured in connection with Aldridge\u2019s work is a different risk from that associated with someone being injured in connection with Western\u2019s work. In Schal Bovis, a construction worker sued Buck (the owner of the site, who was insured by Northbrook), Schal (the general contractor, who was also insured by Northbrook), Ozark (insured by Wausau), Ranken (insured by Great American), Alcan (insured by Casualty), and Chicago Forming (insured by American Estates). Plaintiff obtained a judgment against Schal, Buck and Ozark for $2.8 million. Plaintiff had voluntarily dismissed Alcan and Chicago Forming from its suit, but they remained in the action as third-party defendants. The jury was not asked to apportion fault, but it did return directed verdicts for the third-party defendants on the basis that they were not in charge of the work. Three of the five insurers satisfied the judgment, but two paid nothing: Casualty and American States, who were the insurers of the third-party defendants. All of the policies listed Buck as an additional insured, but the Casualty and American States policies contained \u201carising out of \u2018your work\u2019 \u201d endorsements similar to the ones in the present case. Northbrook was an excess insurer relative to the other insurers in the case, and the other insurers were primary with respect to each other.\nSchal Bovis found that Northbrook could not seek equitable contribution, applying the well-settled rule that an excess insurer may not seek recovery from a primary insurer. Schal Bovis, 315 Ill. App. 3d at 363. The court then concluded that Great American and Wausau were also precluded from seeking equitable contribution from Casualty and American States. Schal Bovis, 315 Ill. App. 3d at 363. The court\u2019s rationale was as follows:\n\u201cAlthough the Great American policy covered Schal and Buck as additional insureds, it did so only to the extent that Schal\u2019s and Buck\u2019s liability arose out of Ranken\u2019s work. The Wausau policy covered Schal and Buck from liability, but only when that liability arose out of Ozark\u2019s work. Clearly, the risk that a plaintiff might be injured in connection with Ranken\u2019s work is a different risk than the risk that a plaintiff might be injured in connection with Ozark\u2019s work. These risks are, in turn, different than the risks associated with a plaintiff being injured in connection with Alcan\u2019s work or in connection with Chicago Forming\u2019s work (as is required by the Casualty and American States policies). Thus, because each insurer insured substantively different risks, each is precluded from seeking equitable contribution from the others.\u201d Schal Bovis, 315 Ill. App. 3d at 363.\nThe appellate court in the case before us noted that River City declined to follow Schal Bovis. 345 Ill. App. 3d at 47. After discussing River City, the appellate court here chose to follow Schal Bovis. 345 Ill. App. 3d at 48.\nIn River City, Modugno, an injured worker, sued Caterpillar and River City in connection with an injury he sustained while working for his employer, Illinois Piping, on the premises of Caterpillar. River City installed tanks and grating around the tanks for Caterpillar, but had failed to install a temporary or permanent handrailing as required by contract. Modugno was required to use the grating to access his jobsite. He lost his balance and was injured while on the grating. Auto Owners insured River City, and Cincinnati insured Illinois Piping. Both insurers insured Caterpillar as an additional insured, and both policies had \u201carising out of your work\u201d language. Cincinnati settled the suit, releasing all claims against Caterpillar, Illinois Piping and River City.\nThe River City appellate court held that the trial court erred in dismissing Cincinnati\u2019s equitable contribution claim against Auto Owners. River City, 325 Ill. App. 3d at 274. It noted that Modugno was injured while performing work for Illinois Piping on grating erected by River City. Thus, there was sufficient identity of insurable interests to support an equitable contribution claim. River City, 325 Ill. App. 3d at 274. The court refused to follow the Schal Bovis rule, noting it would unfairly protect Auto Owners from paying for the benefit it received \u2014 release from liability. River City, 325 Ill. App. 3d at 275.\nAlthough River City found that there was sufficient identity of interests, it did not discuss whether the policies insured the same risk. Instead, it avoided consideration of the requirement, finding instead that coverage need not be identical in all respects. River City, 325 Ill. App. 3d at 274. River City is also factually distinguishable from both the present case and Schal Bovis because in River City it could not be disputed that the work of River City, who was insured by the nonsettling insurer (Auto Owners), was directly responsible for the liability of the additional insured (Caterpillar). The River City court apparently believed that because of the clear responsibility of River City for the accident, the equities of the case obviated any need for a close examination of the respective risks insured by the two insurers. See River City, 325 Ill. App. 3d at 275 (the rule in Schal Bovis would unfairly protect Auto Owners from paying for the benefit it received \u2014 release from liability).\nHome and amici essentially argue that this court should follow River City. They contend that the instant appellate court incorrectly proceeded from the premise that the two policies each covered Allied for its liability arising out of a different subcontractor\u2019s work, to the conclusion that they therefore covered different risks. According to Home, the appellate court falsely assumed that Allied\u2019s liability could have only arisen out of one of the subcontractor\u2019s work, but not the others. A court should assume that the injured worker would have prevailed against either party sued in the complaint. See The Home Insurance Co. v. Certain Underwriters at Lloyd\u2019s London, 729 F.2d 1132, 1134 (7th Cir. 1984).\nCincinnati, on the other hand, argues that the two policies covered substantially different risks because of the additional insured endorsements. Fisher was an employee of Aldridge, so no matter how the injury transpired, Allied\u2019s liability arose out of Aldridge\u2019s work. In contrast, the same cannot be said about Western\u2019s role in the case. Thus, the policies insured different risks.\nWe believe that the two policies at issue covered substantially different risks and therefore equitable contribution was not available. The term \u201crisk\u201d is not defined by the policies, so the commonly understood dictionary definition is applicable. People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 15 (1991). \u201cRisk,\u201d as it is used in the policies at issue, is defined by Webster\u2019s as \u201cthe possibility of loss or injury.\u201d Merriam Webster\u2019s Collegiate Dictionary 1011 (10th ed. 1996). It is also defined as \u201cthe chance of loss\u201d or the \u201cdegree of probability of such loss.\u201d Webster\u2019s Third New International Dictionary 1961 (1993); see also Black\u2019s Law Dictionary 1328 (6th ed. 1990) (the degree of hazard; a specified contingency or peril. In general, the element of uncertainty in an undertaking). The policies clearly covered different possibilities or degrees of probability for suffering harm or loss. The Cincinnati policy covered Allied only for liability arising out of Western\u2019s work, while the Home policy covered Allied only for liability arising out of Aldridge\u2019s work. Although it was possible that both policies would one day be triggered because Allied\u2019s liability for an accident arose out of both Western\u2019s and Aldridge\u2019s work, this is a different question than whether the policies set out to cover the same risk. Clearly, under the terms of either policy Allied would be covered 100% if liability arose at all out of the work of the named insured, no matter how slight. Furthermore, any determination that either Western or Aldridge were not liable in tort for Fisher\u2019s injury is quite a different question than whether or not the policies were triggered because Allied\u2019s liability arose out of the work of Western or Aldridge within the meaning of the respective policies. See Schal Bovis, 315 Ill. App. 3d at 368 (a finding that a party is not in charge of the work is different from a finding that injuries did not arise out of that party\u2019s work). But again, just because both policies may have been triggered so as to provide coverage does not mean that the policies set out to cover the same risk. Accordingly, we believe that Schal Bovis is the better reasoned case, and to the extent that River City is inconsistent, it is overruled.\nII. Equitable Subrogation\nHaving determined that the lower courts properly denied Home\u2019s claim for equitable contribution because the Home policy was excess to Cincinnati\u2019s primary policy and because the policies did not insure the same risks, we now consider Home\u2019s claim for equitable subrogation. Home argues that the appellate court incorrectly applied the \u201cidentity of risk\u201d requirement, applicable to claims of equitable contribution, to deny Home\u2019s claim for equitable subrogation.\nThe appellate court correctly noted the elements of an equitable subrogation claim as follows: (1) the defendant carrier must be primarily liable to the insured for a loss under a policy of insurance; (2) the plaintiff carrier must be secondarily liable to the insured for the same loss under its policy; and (3) the plaintiff carrier must have discharged its liability to the insured and at the same time extinguished the liability of the defendant carrier. 345 Ill. App. 3d at 44, citing North American Insurance Co. v. Kemper National Insurance Co., 325 Ill. App. 3d 477, 481 (2001); State Farm General Insurance Co. v. Stewart, 288 Ill. App. 3d 678, 686-87 (1997). However, in discussing whether Home and Cincinnati were liable for the \u201csame loss,\u201d the appellate court relied upon the equitable contribution analysis of Schal Bovis. 345 Ill. App. 3d at 45-46. As we have already explained, Schal Bovis found that the two policies at issue insured different risks for equitable contribution purposes because each insurer insured the additional insured only to the extent that liability arose out the work of the respective underlying named insureds. Here, however, the appellate court found that because the Home and Cincinnati policies did not insure the \u201csame risk,\u201d they therefore did not cover the \u201csame loss\u201d for purposes of an equitable subrogation claim. 345 Ill. App. 3d at 46.\nWe find that the appellate court erred in equating the \u201cidentity of risk\u201d element of a contribution claim with the \u201csame loss\u201d requirement of a subrogation claim. As Home correctly points out, the appellate court either overlooked or ignored that Schal Bovis found that the excess insurer in that case, who was in the same position as Home here, would be entitled to equitable subrogation. Schal Bovis, 315 Ill. App. 3d at 364. There, the court noted the following:\n\u201cIn addition to seeking equitable contribution, North-brook and its insureds (Schal and Buck) sought reimbursement from Casualty and American States. An action by an excess insurer seeking reimbursement from primary insurers is a distinct remedy, different than equitable contribution. See, e.g., New Amsterdam Casualty Co. v. Certain Underwriters at Lloyds, London, 34 Ill. 2d 424, 216 N.E.2d 665 (1966); Home Indemnity Co. v. General Accident Insurance Co., 213 Ill. App. 3d 319, 572 N.E.2d 962 (1991). Recovery under a reimbursement theory requires only a finding that Casualty and/or American States owed coverage to Schal and Buck with respect to the judgment; to wit, that Sehal\u2019s and Buck\u2019s liability to Keegan at least in part arose out of the work by Casualty\u2019s and American States\u2019 respective insureds (Alcan and Chicago Forming). In such a circumstance, Northbrook, as an excess insurer, should not have had to pay any claim on behalf of Schal and Buck until the Casualty and American States limits were exhausted.\u201d Schal Bovis, 315 Ill. App. 3d at 363-64. We believe that Schal Bovis expresses the correct\nview. A subrogation action brought by an excess insurer against a primary insurer is completely distinct from a contribution action. The elements necessary to maintain a contribution action focus prospectively on the \u201crisk\u201d that the parties set out to cover. For a coinsurer to recover, it must have insured the identical risk. In contrast, a subrogation claim only requires that the secondary insurer insure the \u201csame loss\u201d as the primary insurer. This requirement looks retrospectively at the loss suffered. Here, Allied suffered only one loss, and if Allied\u2019s liability arose at all out of Western\u2019s work then Cincinnati was wholly liable for that loss as the primary insurer, and Home was only secondarily liable for that loss as the excess insurer. By definition, primary and excess insurers insure different risks. Under the appellate court\u2019s approach, an excess insurer would never be able to recover from a primary insurer under a subrogation or reimbursement theory because the parties insure different risks. Cincinnati does not cite any case, nor are we aware of any, that has taken the same approach as the appellate court here. Accordingly, we reverse the appellate court\u2019s finding.\nWe further find that Home was entitled to summary judgment on its equitable subrogation claim as a matter of law. While Home would only be entitled to recovery if it could be shown that Cincinnati owed coverage to Allied because Allied\u2019s liability arose at least in part out of Western\u2019s work, there is a presumption that the injured worker in the underlying suit would have prevailed on all of his theories of liability where the case is settled prior to trial. Certain Underwriters at Lloyd\u2019s London, 729 F.2d at 1134 (court was entitled to assume that worker would have prevailed on his design negligence claim if the case had not settled, and in subsequent contribution action, defendant insurance company was asking the \u201cimpossible\u201d when it maintained that plaintiff insurance company must show what portion of the settlement was paid to settle the allegation of design negligence).\nHere, none of the deposition testimony and affidavits on file were sufficient to create a genuine issue of fact and to overcome the presumption that Allied\u2019s liability arose at least in part out of the work of Western. Cunningham admitted in his deposition that Cincinnati paid $40,000 to settle the suit against Western at least in part because of the possibility that Cincinnati might lose its pending summary judgment motion and be found hable to Fisher at trial. Cunningham further acknowledged that there was a chance that Western could have been found liable in the Fisher suit. He also correctly acknowledged that the \u201carising out of\u2019 language is read broadly in favor of coverage. See, e.g., Casualty Insurance Co. v. Northbrook Property & Casualty Insurance Co., 150 Ill. App. 3d 472, 475 (1986). Moreover, Cincinnati agreed to pay $100,000 toward Allied\u2019s settlement with Fisher, presumably because Cincinnati believed that Allied\u2019s liability arose at least in part out of the work of Western. Under the circumstances, we find that Home was entitled to summary judgment as a matter of law on its subrogation claim. As we will explain more fully below, we also find that Home waived a portion of this claim.\nIII. Waiver\nThe circuit court found that Home completely waived its subrogation claim by not reserving its rights in the letter to Allied when it accepted the defense of the Fisher suit and by not raising the effect of its being an excess insurer sooner than when it filed the declaratory judgment action.\nWaiver arises from an affirmative act, is consensual, and consists of an intentional relinquishment of a known right. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 396 (1993). A waiver may be either expressed or implied, arising from acts, words, conduct, or knowledge of the insurer. Crum & Forster Managers Corp., 156 Ill. 2d at 396; Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 499 (1985). An implied waiver arises when conduct of the person against whom waiver is asserted is inconsistent with any intention other than to waive it. Liberty Mutual Insurance Co. v. Westfield Insurance Co., 301 Ill. App. 3d 49, 53 (1998). Where there is no dispute as to the material facts and only one reasonable inference can be drawn, it is a question of law as to whether waiver has been established. Liberty Mutual, 301 Ill. App. 3d at 53. The failure of a paying insurer to reserve its rights against a nonpaying insurer may constitute a waiver of the right to equitable remedies. 15 Couch on Insurance 3d \u00a7 218:32 (rev. 2004). An insurer desiring to reserve its rights against a second insurer must make this position clear in its correspondence with the second insurer; it is also considered good practice to include such reservation language in any settlement agreement or order, then provide a copy of it to the nonsettling insurer. 15 Couch on Insurance 3d \u00a7 218:32 (rev. 2004).\nHome argues that the circuit court misapprehended the nature of a reservation of rights. Home notes that the circuit court correctly found that the estoppel doctrine only applies where an insurer breached its duty to defend its insured, and that because Home did not breach any duty to defend, estoppel does not apply. Working from this premise, Home claims that because it did not know the contents of Cincinnati\u2019s policy, the circuit court erred in finding waiver with respect to its conduct toward Cincinnati.\nWe disagree. As stated above, an insurer by its conduct may waive rights against another insurer. Here, Home was presumed to know the contents of its own policy and that it was an excess insurer. Home claims that it did not know the contents of Cincinnati\u2019s policy and whether it also contained an excess clause. However, this should not have stopped Home from informing Cincinnati during the Fisher litigation that it would seek full reimbursement from Cincinnati if its policy did not contain an excess clause. The totality of Home\u2019s conduct was inconsistent with any claim that it would seek full reimbursement for the Fisher settlement from Cincinnati. Home accepted Allied\u2019s defense without a specific reservation of rights and without asserting that it was an excess insurer. Instead, it only asserted that it would share in the cost of Allied\u2019s defense and indemnity with Western on a 50-50 basis. Moreover, Home only sought $300,000 from Cincinnati at the time of the settlement, not the fall amount. It also never asserted that it was an excess insurer at the time of settlement.\nIn Liberty Mutual, the nonsettling insurer waived the right to contest the reasonableness of the settlement where it did not indicate that it was concerned about the reasonableness of the settlement at the time it was made. Liberty Mutual, 301 Ill. App. 3d at 53. Similarly, we find that Home waived a portion of its reimbursement claim by not asserting it was entitled to anything more than $300,000 at the time of settlement or at any other time in the underlying dispute, including when it agreed to pay Allied on a 50-50 basis with Western. On appeal before this court, Home admits that it agreed to share in the defense and indemnity of Allied on a 50-50 basis with Cincinnati. Home asks for an award of $200,000 if we find that the circuit court was correct in its waiver analysis. Recognizing that we are guided by equitable principles as they apply to the particular facts of this case, we find that Home is entitled to recover $200,000 from Cincinnati \u2014 having waived the remainder of its claim.\nCONCLUSION\nFor the foregoing reasons, we affirm summary judgment for Cincinnati on the equitable contribution claim, but reverse the appellate court on the equitable subrogation claim and find that Home was entitled to summary judgment on its cross-motion. However, Home waived a portion of that claim and therefore can only recover $200,000. Accordingly, we affirm the judgment of the appellate court in part and reverse in part.\nAppellate court judgment affirmed in part and reversed in part; circuit court judgment affirmed in part and reversed in part.", "type": "majority", "author": "JUSTICE THOMAS" } ], "attorneys": [ "Pretzel & Stouffer, Chrtd., of Chicago (Robert Marc Chemers and Daniel G. Wills, of counsel), for appellant.", "Daniel G. Litchfield and Mitchell H. Frazen, of Litchfield Cavo, of Chicago, for appellee.", "Joseph E Postel, of Meachum, Spahr, Cozzi, Postel & Zenz, of Chicago, for amicus curiae Liberty Mutual Insurance Group." ], "corrections": "", "head_matter": "(No. 97873.\nTHE HOME INSURANCE COMPANY, Appellant, v. THE CINCINNATI INSURANCE COMPANY, Appellee.\nOpinion filed December 2, 2004.\nPretzel & Stouffer, Chrtd., of Chicago (Robert Marc Chemers and Daniel G. Wills, of counsel), for appellant.\nDaniel G. Litchfield and Mitchell H. Frazen, of Litchfield Cavo, of Chicago, for appellee.\nJoseph E Postel, of Meachum, Spahr, Cozzi, Postel & Zenz, of Chicago, for amicus curiae Liberty Mutual Insurance Group." }, "file_name": "0307-01", "first_page_order": 319, "last_page_order": 340 }