{ "id": 222615, "name": "MARK J. KEHOE, Plaintiff, v. COMMONWEALTH EDISON COMPANY, DefendantAppellee and Cross-Appellant (Abbott Contractors, Inc., Third-Party Defendant-Appellant and Cross-Appellee)", "name_abbreviation": "Kehoe v. Commonwealth Edison Co.", "decision_date": "1998-05-15", "docket_number": "No. 1\u201497\u20140600", "first_page": "584", "last_page": "592", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 584" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "165 N.E.2d 286", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "18 Ill. 2d 538", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5327764 ], "year": 1960, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0538-01" ] }, { "cite": "676 N.E.2d 1295", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "1303" }, { "page": "1304", "parenthetical": "emphasizing the importance of the nature of the third-party complaint and finding indemnification provision not void as violative of the Indemnity Act where the nature of the complaint demonstrated the provision had not eliminated the incentive to exercise care" } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295806 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "217" }, { "page": "217-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0201-01" ] }, { "cite": "154 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "pin_cites": [ { "page": "689" } ], "opinion_index": 0 }, { "cite": "15 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2766109 ], "year": 1958, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0272-01" ] }, { "cite": "131 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "7 Ill. 2d 393", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2713110 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-2d/7/0393-01" ] }, { "cite": "597 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "626", "parenthetical": "majority concluding that, \"[ujnder the particular facts of this case, the tenant, by payment of rent, has contributed to the payment of the insurance premium, thereby gaining the status of co-insured under the insurance policy\"" } ], "opinion_index": 0 }, { "cite": "149 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599619 ], "year": 1992, "pin_cites": [ { "page": "323", "parenthetical": "majority concluding that, \"[ujnder the particular facts of this case, the tenant, by payment of rent, has contributed to the payment of the insurance premium, thereby gaining the status of co-insured under the insurance policy\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0314-01" ] }, { "cite": "323 F. Supp. 931", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3224954 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f-supp/323/0931-01" ] }, { "cite": "82 N.Y.2d 281", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2355178 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "288", "parenthetical": "prohibiting insurers that issued both OCP and GCL policies naming contractors as insureds from recovering from contractors for amounts paid under policies" }, { "page": "649", "parenthetical": "prohibiting insurers that issued both OCP and GCL policies naming contractors as insureds from recovering from contractors for amounts paid under policies" }, { "page": "512", "parenthetical": "prohibiting insurers that issued both OCP and GCL policies naming contractors as insureds from recovering from contractors for amounts paid under policies" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/82/0281-01" ] }, { "cite": "632 N.E.2d 44", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "45-46" }, { "page": "45" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871176 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "306" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0304-01" ] }, { "cite": "640 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "960-61" }, { "page": "961" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333130 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "54-55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0051-01" ] }, { "cite": "408 N.E.2d 1129", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "1131" }, { "page": "1131" } ], "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179673 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "377" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0374-01" ] }, { "cite": "557 N.E.2d 196", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "198" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2483261 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0902-01" ] }, { "cite": "569 N.E.2d 1230", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "1235" } ], "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 215", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527965 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0215-01" ] }, { "cite": "401 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "1036" }, { "page": "1036" } ], "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 776", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3228162 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "782-83" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0776-01" ] }, { "cite": "549 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "870" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2504583 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "1070" }, { "page": "1071-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/1064-01" ] }, { "cite": "642 N.E.2d 1348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1357" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 157", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381891 ], "year": 1994, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0157-01" ] }, { "cite": "585 N.E.2d 1023", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "146 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597125 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/146/0155-01" ] } ], "analysis": { "cardinality": 845, "char_count": 20750, "ocr_confidence": 0.734, "pagerank": { "raw": 9.457668658076985e-08, "percentile": 0.5173888516280293 }, "sha256": "5802413683cc8661ba676ab048ea91ebc901c6142d2490f3e9937b847d18d4ff", "simhash": "1:3fdc9d96b7e73f64", "word_count": 3259 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARK J. KEHOE, Plaintiff, v. COMMONWEALTH EDISON COMPANY, DefendantAppellee and Cross-Appellant (Abbott Contractors, Inc., Third-Party Defendant-Appellant and Cross-Appellee)." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nThe issues raised by this appeal and cross-appeal stem from a dispute over a contribution 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\u2019s denial of its posttrial 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\u2019 construction contract and in an amount sufficient to extinguish Commonwealth Edison\u2019s liability to Kehoe, operated as a legal bar to Commonwealth Edison\u2019s contribution action.\nCommonwealth Edison cross-appeals as to the amount of contribution owed, claiming the trial court erred when it determined the parties\u2019 contract did not provide for pure contribution and that Abbott\u2019s amount of contribution was limited to the amount of its liability under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 1994)). Commonwealth Edison maintains the parties\u2019 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\u2019s personal injury. For the following reasons, we reverse.\nAbbott 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\u2019s own name with limits of liability of $2 million. The construction contract also contains a provision calling for \u201cContractor\u2019s Indemnification,\u201d one clause of which attempts to obtain for Commonwealth Edison indemnification for its own negligence.\nPursuant to the construction contract, Abbott purchased from Aetna a separate owners and contractors protective (OCP) liability 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\u2019s requirement. At the same time, Abbott also obtained a commercial general liability (CGL) policy with Aetna in its own name. Abbott\u2019s CGL policy\u2019s schedule of exclusions excludes from coverage the OCP policy. Abbott also had obtained workers\u2019 compensation insurance from another insurer.\nDuring the period that Commonwealth Edison\u2019s OCP policy and Abbott\u2019s CGL policy with Aetna were in effect, Abbott employee Mark Kehoe was injured on the job and brought a personal injury action against Commonwealth Edison and the City of Chicago, alleging that each was negligent and that each had violated the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992)). The city was subsequently dropped from the suit, leaving Commonwealth Edison as the sole defendant.\nUpon being sued by Kehoe, Commonwealth Edison filed and twice amended a third-party contribution complaint against Abbott. Count I of Commonwealth Edison\u2019s final amended complaint alleged various negligent acts or omissions by Abbott and sought contribution from Abbott for that portion of Kehoe\u2019s damages proximately caused by Abbott. Count II repeated the acts or omissions alleged in count I and invoked the construction contract\u2019s \u201cContractor\u2019s Indemnification\u201d provision in support of its contribution claim. In count II, Commonwealth Edison requested contribution from Abbott \u201cin any amount whatsoever,\u201d alleging that Abbott had \u201cwaived the worker\u2019s compensation defense by contract.\u201d\nAbbott answered, raising the Workers\u2019 Compensation Act (820 ILCS 305/11 (West 1992)) as an affirmative defense to count I and requesting that any judgment against it be confined to the amount of its liability under the Workers\u2019 Compensation Act. As defenses to count II, Abbott raised the Construction Contract Indemnification for Negligence Act (Indemnity Act) (740 ILCS 35/1 (West 1992)) and the fact that the parties\u2019 contract preceded the court\u2019s decision in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 585 N.E.2d 1023 (1991).\nAdditionally, as an affirmative defense to both counts, Abbott maintained that, pursuant to the parties\u2019 contract, it had obtained and paid for two liability insurance policies issued by Aetna: the CGL policy insuring Abbott and the OCP policy insuring Commonwealth Edison in its own name and listing Abbott as the designated contractor. Abbott further argued that the parties\u2019 agreement that insurance was to be provided should be interpreted as one of mutual exculpation, that the parties should be deemed to have agreed to look solely to the insurance in the event of a loss.\nKehoe tried his case against Commonwealth Edison to a jury. At the close of Kehoe\u2019s case in chief, Commonwealth Edison settled with Kehoe. The court issued an order on July 8, 1996, stating that \u201cthe complaint of the plaintiff against Commonwealth Edison is dismissed as all matters in controversy have been settled and adjusted between them,\u201d and allowing the case to continue as a third-party action between Commonwealth Edison and Abbott. The contribution action was tried by a jury, which found Abbott 68% liable and Commonwealth Edison 32% liable. Commonwealth Edison stipulated that it was defended under and would be indemnified for the settlement by the policy Abbott purchased for it from Aetna.\nAbbott then filed a posttrial motion pursuant to section 2 \u2014 1202 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1202 (West 1992)), asking the trial court to vacate its judgment entered on the jury verdict and requesting entry of judgment in its favor notwithstanding the verdict or, alternatively, a new trial. Abbott maintained it was not liable to Commonwealth Edison in any amount and repeated its claim that Commonwealth Edison\u2019s action for contribution was barred as a matter of law.\nThereafter, the trial court entered an order dated November 13, 1996, confirming that Commonwealth Edison had made a good-faith settlement with Kehoe for $2 million and an assignment of rights under the Workers\u2019 Compensation Act to Commonwealth Edison. Previously, Kehoe had received workers\u2019 compensation in the amount of $402,684.14. In that order, also addressing Abbott\u2019s posttrial motion, the court found that Commonwealth Edison had a right to bring an action for contribution against Abbott, but determined that Abbott had not contractually waived the limitation on its liability under the Workers\u2019 Compensation Act. As a result, the trial court concluded that Abbott owed Commonwealth Edison, not pure contribution in the amount of 68% of the settlement but, rather, $118,564.21, an amount constituting 68% of plaintiffs expenses and 25% of the workers\u2019 compensation lien of $402,684.14.\nAbbott appeals the trial court\u2019s judgment and denial of its post-trial motion. Commonwealth Edison contends on cross-appeal that the parties\u2019 construction contract provides for pure contribution and that Abbott is liable to Commonwealth Edison for 68% of the settlement, an amount of $1,326,313.51. We review de novo as a matter of law the trial court\u2019s judgment and finding that Commonwealth Edison\u2019s contribution action against Abbott was not barred. Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157, 169, 642 N.E.2d 1348, 1357 (1994).\nIn Illinois, two analytical approaches have developed as to the purchase of insurance in the context of contractual indemnification. In some instances, courts have analyzed the parties\u2019 contract to determine whether they intended to mutually exculpate one another from liability through the mechanism of the purchase of insurance. Dowling v. Otis Elevator Co., 192 Ill. App. 3d 1064, 549 N.E.2d 866 (1989); Rome v. Commonwealth Edison Co., 81 Ill. App. 3d 776, 401 N.E.2d 1032 (1980). By contrast, another series of decisions turned not upon contract analysis, but primarily upon the courts\u2019 application of the general rule of law that, when parties to a business transaction agree insurance will be provided as part of the bargain, the agreement must be interpreted as providing mutual exculpation to the bargaining parties. Monical v. State Farm Insurance Co., 211 Ill. App. 3d 215, 569 N.E.2d 1230 (1991); Briseno v. Chicago Union Station Co., 197 Ill. App. 3d 902, 557 N.E.2d 196 (1990); Vandygriff v. Commonwealth Edison Co., 87 Ill. App. 3d 374, 408 N.E.2d 1129 (1980).\nCourts have applied these distinct analytical approaches in diverse factual and legal contexts. In so doing, they of necessity confronted various ancillary issues posed by each case\u2019s unique context. For example, antisubrogation issues may exist depending upon the identity of the insurer, the status of the third-party defendant as an additional insured or as a \u201cjoint insured,\u201d the existence of multiple policies, and the type of policy at issue. In addition, the precise nature of the cause of action, whether the action was one for contractual or common law indemnity or for contribution, circumscribed the courts\u2019 decision in each case. These ancillary issues directly address the identity of the real party in interest and the nature of the right asserted.\nNevertheless, despite their analytical, factual, and contextual distinctions, the cases converge upon one dispositive issue regarding the status of the underlying suit: whether a settlement or judgment within the policy\u2019s limits was reached and fully funded by the insurer. See Kirincich v. Jimi Construction Co., 267 Ill. App. 3d 51, 54-55, 640 N.E.2d 958, 960-61 (1994); Vaughn v. Commonwealth Edison Co., 259 Ill. App. 3d 304, 306, 632 N.E.2d 44, 45-46 (1994); Monical, 211 Ill. App. 3d at 224, 569 N.E.2d at 1235; Briseno, 197 Ill. App. 3d at 906, 557 N.E.2d at 198. As noted in Kirincich, 267 Ill. App. 3d at 55, 640 N.E.2d at 961, even those cases holding that contribution was barred by the rule of mutual exculpation \u201carose in a factual context where the parties\u2019 joint insurance had absorbed the entire liability of the party seeking contribution.\u201d See Monical, 211 Ill. App. 3d 215, 569 N.E.2d 1230; Briseno, 197 Ill. App. 3d 902, 557 N.E.2d 196; Vandygriff, 87 Ill. App. 3d 374, 408 N.E.2d 1129.\nAs a threshold matter, we note that we have not been asked to determine, and we need not decide under the facts of this case, whether Abbott\u2019s purchase of two separate policies from the same insurer on the same day to insure against construction loss rendered the parties \u201cjoint insureds,\u201d so as to invoke the antisubrogation rule. See North Star Reinsurance Corp. v. Continental Insurance Co., 82 N.Y.2d 281, 288, 624 N.E.2d 647, 649, 604 N.Y.S.2d 510, 512 (1993) (prohibiting insurers that issued both OCP and GCL policies naming contractors as insureds from recovering from contractors for amounts paid under policies). However, we are aware that, as noted in Rome in the context of an action for indemnification, third-party actions involving contractual agreements to provide both indemnification and insurance often conceal questions of subrogation and the identity of the real parties in interest. Rome, 81 Ill. App. 3d at 782-83, 401 N.E.2d at 1036.\nIn Rome, the court\u2019s decision was premised upon the assumptions that \u201cthe fact that an indemnitee\u2019s liability is covered by insurance does not negate the indemnitor\u2019s obligation\u201d and that \u201cthe indemnitee\u2019s insurer, who had paid the indemnitee\u2019s liability and who was subrogated to the rights of the indemnitee, may recover from the indemnitor.\u201d Rome, 81 Ill. App. 3d at 783, 401 N.E.2d at 1036. Although this action for contribution conceals many of the subrogation issues directly addressed in Rome, the parties and their insurers did not bring this case as a subrogation action, and those issues remain beyond the scope of this appeal.\nAs framed by Abbott, the more narrow issue before us is whether Abbott\u2019s purchase of insurance, pursuant to the parties\u2019 construction contract in an amount sufficient to extinguish Commonwealth Edison\u2019s liability to Kehoe, operated as a legal bar to Commonwealth Edison\u2019s statutory contribution action. The correct resolution of this issue rests not only upon our interpretation of the parties\u2019 contract as evidencing their intent, but also upon the factual status of the underlying case: whether Commonwealth Edison\u2019s liability to Kehoe was in fact extinguished as a result of Abbott\u2019s purchase of insurance.\nAbbott relies on the rule of mutual exculpation to suggest that Commonwealth Edison\u2019s contribution action against it was barred as a matter of law. As explained in Vandygriff, 87 Ill. App. 3d at 377, 408 N.E.2d at 1131, in the context of an action for common law indemnity, the rule of mutual exculpation derives from General Cigar Co. v. Lancaster Leaf Tobacco Co., 323 F. Supp. 931 (D. Md. 1971), and provides: \u201cwhen parties to a business transaction mutually agree that insurance will be provided as part of the bargain, then that agreement must be interpreted as providing mutual exculpation to the bargaining parties.\u201d Our supreme court\u2019s previous conclusions that a lessee may be protected against an action brought by the lessor and its insurer, as subrogee, for recovery of losses due to fire damage are often used as justification for application of the rule in the construction context. See Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 323, 597 N.E.2d 622, 626 (1992) (majority concluding that, \u201c[ujnder the particular facts of this case, the tenant, by payment of rent, has contributed to the payment of the insurance premium, thereby gaining the status of co-insured under the insurance policy\u201d); Cerny-Pickas & Co. v. C.R. Jahn Co., 7 Ill. 2d 393, 131 N.E.2d 100 (1955).\nHowever, we are not persuaded that either the mutual exculpation rule or our supreme court\u2019s previous determinations regarding a fire insurer\u2019s right to bring a subrogation action against a particular tenant directly address the issues raised by this action: an action for contribution under the Act in the context of the specific language of the parties\u2019 construction contract. Instead, we find the context of this case requires us to analyze the parties\u2019 construction contract to determine their intent.\nInitially, we note that a contract is to be construed as a whole and that our primary goal when construing a contract is to give effect to the parties\u2019 intentions. Martindell v. Lake Shore National Bank, 15 Ill. 2d 272, 283, 154 N.E.2d 683, 689 (1958). As a general rule, the parties\u2019 intentions are determined from their final agreement. Vandygriff, 87 Ill. App. 3d at 376, 408 N.E.2d at 1131. Moreover, \u201cstatutes and laws in existence at the time a contract is executed are considered part of the contract,\u201d and \u201c[i]t is presumed that parties contract with knowledge of the existing law.\u201d Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 217, 676 N.E.2d 1295, 1303 (1997). In addition, a construction of a contract rendering the agreement enforceable is preferred over one rendering the agreement void. Schiro v. W.E. Gould & Co., 18 Ill. 2d 538, 543, 165 N.E.2d 286, 289 (1960).\nCourts have held that the promise to obtain insurance is not the same as the promise to indemnify. Dowling, 192 Ill. App. 3d at 1070, 549 N.E.2d at 870. Moreover, in Dowling, the court concluded that a subcontractor\u2019s agreement to provide the contractor with insurance and to indemnify the contractor against the subcontractor\u2019s negligence was not the same as a clear and explicit waiver of the right to contribution. Dowling, 192 Ill. App. 3d at 1071-72, 549 N.E.2d at 871.\nAbbott also contends that the clause in the contract\u2019s indemnity provision that attempts to obtain for Commonwealth Edison indemnification for its own negligence is fatal to Commonwealth Edison\u2019s contribution action. We do not agree. As noted in Vaughn v. Commonwealth Edison Co., 259 Ill. App. 3d 304, 305, 632 N.E.2d 44, 45 (1994), even though an indemnity clause in a construction contract itself may be void, its inclusion in the contract may be evidence of the parties\u2019 intent to look beyond the insurance provided in the event of a loss. Additionally, Commonwealth Edison\u2019s complaint expressly sought contribution from Abbott only for that portion of Kehoe\u2019s damages proximately caused by Abbott. It did not seek indemnification from Abbott for its own negligence. Therefore, we cannot conclude that the clause violated the policy behind the Indemnity Act. See Braye, 175 Ill. 2d at 217-18, 676 N.E.2d at 1304 (emphasizing the importance of the nature of the third-party complaint and finding indemnification provision not void as violative of the Indemnity Act where the nature of the complaint demonstrated the provision had not eliminated the incentive to exercise care).\nHere, as in Vaughn and Dowling, the provisions of the construction contract at issue do not clearly express an intent by the parties to look solely to insurance in the event of a loss. Rather, when read as a whole, we believe the construction contract evidences the parties\u2019 intent to provide for potential losses first by the mechanism of insurance and then by indemnification. Indeed, section 12(b) of the parties\u2019 construction contract supports this interpretation of the contract. There, the parties agreed that, \u201cto the extent the Owner is compensated by insurance as to which the Owner\u2019s insurance carrier\u2019s rights of subrogation have been waived or are required to be waived in accordance with the Contract,\u201d the contractor is not required to provide indemnification. We believe the parties intended the insurance to provide the first line of protection from a suit such as Kehoe\u2019s.\nTherefore, the status of the underlying suit in this case was critical to the trial court\u2019s determination as to Commonwealth Edison\u2019s ability to maintain its contribution action. Under the terms of the parties\u2019 contract, Commonwealth Edison\u2019s contribution action was barred after Commonwealth Edison had been fully defended, fully protected, and the intent of the contract fulfilled.\nSo long as the potential for loss in excess of the policy\u2019s limits remained, Commonwealth Edison was at risk of a loss for which it could assert a statutory right to contribution. If, as in Dowling, the trial court had dismissed the contribution action before liability was determined either by settlement or judgment, Commonwealth Edison would have remained potentially at risk for an amount in excess of the policy\u2019s limits. Additionally, if the resources available under the policy had been depleted or if Aetna had defended under a reservation of rights, denied coverage, or refused fully to fund the settlement with Kehoe, Commonwealth Edison would have been at risk of loss.\nThe order confirming settlement does not reference Aetna\u2019s payment to Kehoe of Commonwealth Edison\u2019s settlement with him in the amount of $2 million. Nevertheless, there is no evidence in the record that Aetna defended Commonwealth Edison under a reservation of rights, and Commonwealth Edison does not dispute that Aetna funded the settlement. Rather, at the close of its contribution action, Commonwealth Edison stipulated that the $2 million it paid in settlement to Kehoe were paid from the Aetna policy purchased by Abbott.\nAt that point, Commonwealth Edison was defended, its liability was fixed by settlement, its obligation to Kehoe was fully funded by Aetna, and the intent of the parties\u2019 contract fulfilled. As a result, we conclude the trial court erred when it denied Abbott\u2019s posttrial motion and entered judgment in favor of Commonwealth Edison in the amount of $118,564.21. Because we find that the trial court erred in failing to grant Abbott\u2019s motion for judgment notwithstanding the verdict and in entering judgment in favor of Commonwealth Edison in any amount, we need not consider whether the language of the parties\u2019 construction contract constitutes a contractual waiver of the limitations placed upon Abbott\u2019s amount of contribution under the Workers\u2019 Contribution Act.\nReversed.\nHARTMAN and HOURIHANE, JJ., concur.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and John M. McGregor, of counsel), for appellant.", "Schoen & Smith, Ltd., of Chicago (Lee J. Schoen, of counsel), for appellee." ], "corrections": "", "head_matter": "MARK J. KEHOE, Plaintiff, v. COMMONWEALTH EDISON COMPANY, DefendantAppellee and Cross-Appellant (Abbott Contractors, Inc., Third-Party Defendant-Appellant and Cross-Appellee).\nFirst District (5th Division)\nNo. 1\u201497\u20140600\nOpinion filed May 15, 1998.\nPretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and John M. McGregor, of counsel), for appellant.\nSchoen & Smith, Ltd., of Chicago (Lee J. Schoen, of counsel), for appellee." }, "file_name": "0584-01", "first_page_order": 602, "last_page_order": 610 }