{ "id": 4296188, "name": "AMERICAN STATES INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. CFM CONSTRUCTION COMPANY, Defendant and Counterplaintiff-Appellee (Michigan Mutual Insurance Company, Defendant and Counterplaintiff-Appellee and Cross-Appellant; Francisco Flores, Defendant)", "name_abbreviation": "American States Insurance Co. v. CFM Construction Co.", "decision_date": "2010-01-12", "docket_number": "No. 2\u201408\u20140781", "first_page": "994", "last_page": "1005", "citations": [ { "type": "official", "cite": "398 Ill. App. 3d 994" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "347 Ill. App. 3d 10", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3948854 ], "year": 2004, "pin_cites": [ { "page": "20", "parenthetical": "in a cause of action for equitable contribution, the loss or settlement amount is prorated between the insureds based on policy limits" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0010-01" ] }, { "cite": "348 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4021829 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0411-01" ] }, { "cite": "382 Ill. App. 3d 1123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276963 ], "year": 2008, "pin_cites": [ { "page": "1127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/1123-01" ] }, { "cite": "389 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1025941 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "142", "parenthetical": "\"It is well settled that the rights and remedies available under section 155 can be extended to assignees of insureds\"" }, { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0133-01" ] }, { "cite": "122 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549613 ], "year": 1988, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0462-01" ] }, { "cite": "369 Ill. App. 3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267900 ], "year": 2006, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0711-01" ] }, { "cite": "293 Ill. App. 3d 620", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847546 ], "year": 1997, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0620-01" ] }, { "cite": "332 Ill. App. 3d 326", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034009 ], "year": 2002, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0326-01" ] }, { "cite": "197 Ill. 2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259023 ], "year": 2001, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0278-01" ] }, { "cite": "215 Ill. 2d 146", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059916 ], "year": 2005, "pin_cites": [ { "page": "154-55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0146-01" ] }, { "cite": "344 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778457 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "70" }, { "page": "69", "parenthetical": "\"where an issue has been litigated and decided, a court's unreversed decision on that question of law or fact settles that question 'for all subsequent stages of the suit' \"" }, { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0064-01" ] }, { "cite": "223 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604958 ], "year": 2006, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0407-01" ] }, { "cite": "222 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3601736 ], "year": 2006, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0472-01" ] }, { "cite": "213 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448460 ], "year": 2004, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0141-01" ] }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "391" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "213 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448779 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "316" }, { "page": "316" }, { "page": "321" }, { "page": "321-22" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0307-01" ] }, { "cite": "325 Ill. App. 3d 970", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570853 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "981" }, { "page": "981" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0970-01" ] }, { "cite": "355 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599911 ], "year": 2004, "pin_cites": [ { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0001-01" ] }, { "cite": "387 Ill. App. 3d 85", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4282990 ], "year": 2008, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/387/0085-01" ] }, { "cite": "392 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4287705 ], "year": 2009, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/392/0542-01" ] }, { "cite": "216 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828440 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "376" }, { "page": "376" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0366-01" ] } ], "analysis": { "cardinality": 971, "char_count": 25464, "ocr_confidence": 0.78, "pagerank": { "raw": 7.409160454152285e-08, "percentile": 0.44320054953010773 }, "sha256": "df10f3e3e40b575f5f72d3ad2543b3b2a3ba9d6ff9736b6aee8c79fac4afe6d4", "simhash": "1:0bfb1d3676413021", "word_count": 4077 }, "last_updated": "2023-07-14T21:50:17.302697+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HUTCHINSON and JORGENSEN, JJ., concur." ], "parties": [ "AMERICAN STATES INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. CFM CONSTRUCTION COMPANY, Defendant and Counterplaintiff-Appellee (Michigan Mutual Insurance Company, Defendant and Counterplaintiff-Appellee and Cross-Appellant; Francisco Flores, Defendant)." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nAmerican States Insurance Company (American) appeals from part of a judgment of the trial court denying its motion for summary judgment and granting summary judgment to CFM Construction Company (CFM) and Michigan Mutual Insurance Company (Michigan). The trial court ruled that American was required to pay Michigan half of the amount of a settlement Michigan paid under a policy it issued to a subcontractor, International Decorators, that worked for a general contractor, CFM. Michigan cross-appeals from part of the same judgment denying it and CFM attorney fees, costs, and prejudgment interest.\nOn appeal American argues that (1) the trial court correctly found that Michigan had no cause of action for equitable contribution or equitable subrogation; and (2) the trial court erred by relying solely upon a comparison of the policies\u2019 \u201cother insurance\u201d clauses to find that under those provisions Michigan could recover half of the settlement amount from American.\nOn cross-appeal, Michigan argues that (1) the trial court erred by failing to award it and CFM attorney fees and costs; and (2) the trial court erred by failing to award it and CFM prejudgment interest. We affirm.\nI. Facts\nThe following facts are not in dispute. This action arose out of an accident at a construction site in Libertyville, Illinois. CFM was the general contractor on the construction project. CFM subcontracted with NF Construction to provide carpentry services for the project. Gerald Kemp, an NF employee, was the construction supervisor at the site. American insured NF under a general liability policy. CFM was added as an additional insured under NF\u2019s American policy.\nCFM also subcontracted with International Decorators on the project. Michigan insured International Decorators under a general liability policy. CFM was added as an additional insured under International Decorators\u2019 Michigan policy.\nFrancisco Flores, an employee of International Decorators, was injured when he fell from a scaffold at the construction site. Flores filed two separate lawsuits, against CFM and NF, alleging in each lawsuit that the named defendant was in charge of the work and had a duty to operate, manage, supervise, and control the construction site and the activities of the workmen thereon and that it allegedly did so negligently, resulting in Flores\u2019 injuries. The two lawsuits were consolidated for discovery and trial purposes.\nCFM tendered its defense to Michigan. Michigan asked American to contribute to the defense of CFM but American refused. American then filed a declaratory action against CFM, seeking a declaration that it had no duty to contribute to the costs of defending CFM in the Flores action. All parties moved for summary judgment. The trial court ruled in favor of CFM and Michigan and against American. American appealed. This court affirmed the trial court\u2019s judgment. American States Insurance Co. v. CFM Construction Co., No. 2 \u2014 05\u2014 0077 (2005) (unpublished order under Supreme Court Rule 23). We held that American owed a duty to defend CFM as an additional insured.\nBefore that appeal, Flores, Michigan, American, NF, and CFM executed a settlement agreement. Flores agreed to release all claims and causes of action against NF and CFM. Michigan paid $700,000; American agreed to pay only $200,000 on behalf of NF and Gerald Kemp. American refused to pay anything on behalf of CFM.\nMichigan acquired an assignment of CFM\u2019s rights to sue American for breach of duty to defend and indemnify in the Flores lawsuit.\nOn remand, and after the settlement, American filed a second amended complaint against CFM and Michigan, seeking, inter alia, a declaration that it had no duty to indemnify CFM under its policy issued to NF. CFM and Michigan filed a second amended countercom-plaint for declaratory judgment, seeking reimbursement for half of the $700,000 settlement amount. CFM and Michigan argued, inter alia, that Michigan was entitled to reimbursement from American based on the \u201cother insurance\u201d provisions and equitable contribution. CFM and Michigan also sought attorney fees, costs, and prejudgment interest from American. The parties filed motions for summary judgment. The trial court denied American\u2019s motion for summary judgment and granted summary judgment to CFM and Michigan, though denying fees, costs, and interest.\nThe trial court reasoned that Michigan could not recover under the theory of equitable contribution because the policies of Michigan and American \u201cdid not cover the same risk[s].\u201d However, the trial court determined that both policies provided primary commercial general liability coverage and contained identical \u201cother insurance\u201d provisions (providing excess coverage). The trial court concluded, \u201cThe policy provisions therefore are canceled out and the cost of the CFM settlement must be shared.\u201d The trial court ordered American to pay Michigan $350,000. The trial court denied American\u2019s motion for reconsideration. American timely appealed, and Michigan filed a timely cross-appeal.\nII. Analysis\nOn appeal, American argues that the trial court erred by granting CFM and Michigan\u2019s motion for summary judgment, awarding Michigan $350,000 in reimbursement.\nSummary judgment is appropriate only when \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 2008). Summary judgment is a drastic measure of disposing of litigation and should be granted only if the movant\u2019s right to judgment is clear and free from doubt. Chatham Foot Specialists, P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 376 (2005). When ruling on a motion for summary judgment, the court has a duty to construe the evidence in the light most favorable to the non-moving party and strictly against the movant. Chatham Foot, 216 Ill. 2d at 376. The appellate court applies a de novo standard of review to the trial court\u2019s grant or denial of a summary judgment motion. Chatham Foot, 216 Ill. 2d at 376.\nA. American\u2019s Appeal\n1. Equitable Contribution\nOn appeal American argues that the trial court correctly decided that Michigan and CFM had no cause of action for equitable contribution. We will address this issue, because on review we may affirm on any basis supported by the record. Northern Moraine Wastewater Reclamation District v. Illinois Commerce Comm\u2019n, 392 Ill. App. 3d 542, 563 (2009).\nWhen an insurer has paid the entire loss, the doctrine of equitable contribution allows it to be reimbursed by other insurers that are also liable for the loss. Cincinnati Insurance Co. v. American Hardware Manufacturers Ass\u2019n, 387 Ill. App. 3d 85, 114 (2008). The doctrine of equitable contribution \u201carises from a right, which is independent from the rights of the insured, to recover from a coobligor who shares the same liability as the party seeking contribution.\u201d Argonaut Insurance Co. v. Safway Steel Products, Inc., 355 Ill. App. 3d 1, 10-11 (2004). The purpose of the doctrine is to provide a remedy when one insurer has paid a debt that is equally owed by another insurer. Chicago Hospital Risk Pooling Program v. Illinois State Medical Inter-Insurance Exchange, 325 Ill. App. 3d 970, 981 (2001). \u201cThe fact that one insurer undertakes the burden of a full settlement payment does not mean the insurer is a volunteer.\u201d Chicago Hospital Risk, 325 Ill. App. 3d at 981. Equitable \u201c[cjontribution 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.\u201d Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 316 (2004).\nAmerican argues that equitable contribution does not apply, because the parties\u2019 policies insured completely different risks. American argues that American\u2019s policy insured CFM for CFM\u2019s liability arising out of NF\u2019s work, which had no connection to Flores or International Decorators; whereas Michigan\u2019s policy insured CFM for liability arising out of work by International Decorators, which was Flores\u2019 employer. We disagree with American.\nIt is well settled that when two insurers cover \u201cseparate and distinct risks,\u201d equitable contribution does not apply. Home Insurance, 213 Ill. 2d at 316. The term \u201crisk\u201d is not defined by the policies here, so the commonly understood dictionary definition is applicable. Home Insurance, 213 Ill. 2d at 321. \u201cRisk,\u201d as it is used in the policies, is defined by Merriam-Webster\u2019s as \u201cthe possibility of loss or injury.\u201d Merriam-Webster\u2019s Collegiate Dictionary 1011 (10th ed. 1998). 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 (1986); see also Black\u2019s Law Dictionary 1328 (6th ed. 1990) (\u201cthe degree of hazard; a specified contingency or peril,\u201d \u201c[i]n general, the element of uncertainty in an undertaking\u201d)). Home Insurance, 213 Ill. 2d at 321-22.\nA court\u2019s primary objective in construing the language of an insurance policy is to ascertain and give effect to the intentions of the parties as expressed by the language of the policy. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). Like any contract, an insurance policy is to be construed as a whole, giving effect to every provision, if possible, because it must be assumed that every provision was intended to serve a purpose. Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). If the words used in the policy, given their plain and ordinary meaning, are unambiguous, they must be applied as written. Crum & Forster Managers Corp., 156 Ill. 2d at 391. However, if the words used in the policy are ambiguous, they will be strictly construed against the drafter. Central Illinois Light Co., 213 Ill. 2d at 153. It is well settled that the construction of an insurance policy is a question of law and is an appropriate subject for disposition by way of summary judgment. Illinois Farmers Insurance Co. v. Marchwiany, 222 Ill. 2d 472, 476 (2006). Since the construction of an insurance policy is a question of law, our review is de novo. Nicor, Inc. v. Associated Electric & Gas Insurance Services, Ltd., 223 Ill. 2d 407, 416 (2006).\nCFM was added as an additional insured under American\u2019s NF policy pursuant to the following provision:\n\u201cWHO IS AN INSURED (Section II) is amended to include as an insured any person or organization for whom you are performing operations if you and such person or organization have agreed in a written contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured.\u201d (Emphasis added.)\nAs we stated in our prior Rule 23 order, \u201calthough the contract between CFM and NF did not mention construction supervision, Gerald Kemp, an NF employee, acted in that capacity at the construction site.\u201d Further, \u201cIt is not clear from the record who paid Kemp. However, NF apparently did, because NF billed CFM several thousand dollars for construction supervision services.\u201d American States Insurance Co., slip op. at 2.\nWe held: \u201cNothing in the policy says that those \u2018operations\u2019 must be related to the operations described in the contract. It appears, then, that the plain meaning of \u2018ongoing operations\u2019 refers to any ongoing work that NF was performing for CFM. \u2018Operation\u2019 is defined as \u2018performance of a practical work or of something involving the practical application of principles or processes.\u2019 Merriam-Webster\u2019s Collegiate Dictionary 813 (2001). This definition is certainly broad enough to cover NF\u2019s construction supervision.\u201d American States Insurance Co., slip op. at 5.\nBecause CFM hired NF to supervise the construction, both American and Michigan insured the same risks. As the supervisor of construction, NF was responsible for supervising subcontractors, including International Decorators. Therefore, both American, through NF\u2019s supervision of the site, and Michigan insured CFM for supervisory liability arising out of International Decorators\u2019 acts or failures to act. Accordingly, the risks or \u201c \u2018the possibilities] of loss or injury\u2019 [citation]\u201d {Home Insurance, 213 Ill. 2d at 322), due to NF\u2019s negligent supervision and International Decorators\u2019 negligence, were the same, i.e., joint and several proximate causes.\nIn its reply brief, American argues that the trial court erred by ordering it to reimburse Michigan, because American had no duty to indemnify CFM for the underlying action. American argues that the underlying plaintiff, Flores, made incompatible tort claims: Flores\u2019 complaint against CFM alleged that CFM was the construction supervisor; his complaint against NF alleged that NF was the construction supervisor. American argues that, while we could accept both allegations as true for purposes of deciding the duty to defend, we should not accept them here, because the duty to indemnify is narrower than the duty to defend. American also asserts that NF denied that it was the construction supervisor.\nIt is well settled that the duty to indemnify is narrower than the duty to defend. See Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App. 3d 64, 70 (2003). The duty to defend arises if, liberally construing the allegations in the underlying complaint in the insured\u2019s favor and against the insurer, there are factual allegations that potentially fall within coverage. General Agents Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 154-55 (2005). In contrast, the duty to indemnify arises only when the insured becomes legally obligated to pay damages in an underlying action that gives rise to a claim under the policy. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 293 (2001). The duty to indemnify turns on whether the claim is covered by the policy. Employers Reinsurance Corp. v. E. Miller Insurance Agency, Inc., 332 Ill. App. 3d 326, 336 (2002).\nAmerican acknowledges that Flores\u2019 complaints were consolidated for trial. See American States Insurance Co., slip op. at 3. American also acknowledges that we held that it had a duty to defend, stating in our Rule 23 order that: \u201cWhen the actions were consolidated, the underlying complaints clearly alleged NF\u2019s role as construction supervisor.\u201d American States Insurance Co., slip op. at 6. This is the law of the case. Pekin Insurance, 344 Ill. App. 3d at 69 (\u201cwhere an issue has been litigated and decided, a court\u2019s unreversed decision on that question of law or fact settles that question \u2018for all subsequent stages of the suit\u2019 \u201d), quoting Norton v. City of Chicago, 293 Ill. App. 3d 620, 624 (1997).\nIn this case, American has not provided any facts that demonstrate why our analysis in our prior decision regarding its duty to defend should be different from our analysis here regarding its duty to indemnify. American has provided no reasons to question the facts alleged in Flores\u2019 consolidated complaints. Although American states that NF denied that it was the construction supervisor, American has failed to cite to the record to support this claim and we have not been able to locate anything that does. Supreme Court Rule 341(h)(7) requires that a party\u2019s appellate arguments contain citations to the pages of the record on which the party relied. 210 Ill. 2d R. 341(h)(7). The failure to provide relevant citations to the record is a violation of Rule 341(h)(7) and results in forfeiture. See Gomez v. The Finishing Co., 369 Ill. App. 3d 711, 723 (2006). Further, because Flores\u2019 complaints were consolidated for trial, we refuse American\u2019s invitation to interpret Flores\u2019 complaints as \u201cincompatible,\u201d and instead read them together, as consolidated. After interpreting American\u2019s policy, we determine that the claim was covered. Thus, American had a duty to indemnify CFM.\nBecause we have determined that Michigan was entitled to reimbursement based on the doctrine of equitable contribution, the trial court properly granted CFM and Michigan\u2019s motion for summary judgment and ordered American to pay Michigan $350,000, or half of the $700,000 settlement.\nFurther, because we affirm the trial court\u2019s judgment based on the doctrine of equitable contribution, we need not address American\u2019s argument that equitable subrogation does not apply.\n2. \u201cOther Insurance\u201d Clauses\nAmerican argues that the trial court erred by relying on a comparison of the \u201cother insurance\u201d clauses to find that under those provisions Michigan could recover half of the settlement amount. Because we are affirming based on the doctrine of equitable contribution, we need not address this argument.\nB. Michigan\u2019s Cross-Appeal\n1. The Trial Court Did Not Abuse Its Discretion by Denying Michigan and CFM\u2019s Request for Attorney Fees and Costs\nIn its cross-appeal, Michigan argues that the trial court erred by not finding American\u2019s action to be vexatious or in bad faith and failing to award Michigan and CFM attorney fees and costs under section 155 of the Insurance Code (Code) (215 ILCS 5/155 (West 2008)).\nIn the trial court, Michigan and CFM sought damages under section 155 of the Code, claiming that American\u2019s failure to settle this matter was vexatious and in bad faith. The trial court found that, although it disagreed with American\u2019s position, American\u2019s action was not vexatious or in bad faith.\nInitially, American notes that CFM did not appeal the trial court\u2019s judgment and asserts that, therefore, we cannot address this issue since the right to recover damages under section 155 of the Code belonged to CFM alone. Essentially, American argues that Michigan has no standing to raise this issue on appeal. In Illinois standing requires \u201csome injury in fact to a legally cognizable interest.\u201d Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988). Because CFM assigned its rights to Michigan, Michigan is in the same position as CFM and may seek section 155 sanctions on CFM\u2019s behalf. See Peerless Enterprises, Inc. v. Kruse, 317 Ill. App. 3d 133, 142 (2000) (\u201cIt is well settled that the rights and remedies available under section 155 can be extended to assignees of insureds\u201d). Therefore, Michigan has standing to raise this issue on appeal.\nSection 155 of the Code provides:\n\u201c(1) In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:\n(a) 60% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;\n(b) $60,000.\u201d 215 ILCS 5/155 (West 2008).\nAn insurer will not be liable for attorney fees and costs under section 155 of the Code merely because it litigated and lost the issue of insurance coverage. Valdovinos v. Gallant Insurance Co., 314 Ill. App. 3d 1018, 1021 (2000). If a bona fide dispute existed regarding insurance coverage, the insurer\u2019s delay in settling a claim does not violate section 155. \u201cBona fide\u201d is defined as \u201c[r]eal, actual, genuine, and not feigned.\u201d Black\u2019s Law Dictionary 177 (6th ed. 1990). A trial court\u2019s decision to award attorney fees and costs under section 155 will not be disturbed absent an abuse of discretion. Siwek v. White, 388 Ill. App. 3d 152, 159-60 (2009). A trial court must consider the totality of the circumstances, including the insurer\u2019s attitude, whether the insured was forced to sue to recover, and whether the insured was deprived of the use of her or his property. Kruse, 317 Ill. App. 3d at 144.\nIn their second amended countercomplaint, Michigan and CFM sought $37,661.60, alleging that American engaged in vexatious and unreasonable conduct and delay in the trial court and in the appellate proceeding in that: (a) American waited almost five months after CFM tendered its defense to Michigan to file its complaint for declaratory judgment; (b) during that almost five-month period, American defended NF against Flores and knew that CFM incurred significant fees and costs from the Flores suit; (c) American refused to participate in mediation to settle the Flores suit on behalf of CFM; (d) on many occasions American refused to cooperate to settle on CFM\u2019s behalf; and (e) in its second amended complaint, American continued to allege that it had no written contract to insure CFM and that CFM\u2019s liability did not arise from ongoing operations, even though the law of the case was established in a prior Rule 23 order by this court. Michigan adds in its brief that American delayed paying half of CFM\u2019s defense fees and costs until December 20, 2006, when it knew of such fees and costs 10 months earlier.\nConsidering the totality of the circumstances, we cannot say that the trial court abused its discretion by denying Michigan and CFM attorney fees and costs. American waited almost five months after CFM tendered its defense to Michigan to file its complaint for declaratory judgment. Michigan sought contribution from American; three weeks later American refused. There was nothing inherently vexatious or unreasonable about the three-week period between notice to American and its refusal or the almost five-month period between CFM\u2019s tender to Michigan and American\u2019s declaratory judgment action. American articulated its policy defenses three weeks after it received notice of the underlying action, and there is nothing in the counterclaim suggesting that American\u2019s position was unreasonable, given that the duty to indemnify is narrower than the duty to defend. See Pulte Home Corp., 344 Ill. App. 3d at 70. Further, the basis for American\u2019s appeal was not inherently vexatious or unreasonable, because the parties had a bona fide dispute regarding the effects of the \u201cother insurance\u201d provisions and whether the policies insured the same risks. The law and the facts in this case present questions upon which reasonable minds might differ. Thus, the trial court did not abuse its discretion by denying Michigan and CFM\u2019s request for section 155 attorney fees and costs.\n2. The Trial Court Did Not Abuse Its Discretion by Denying Michigan and CFM\u2019s Request for Prejudgment Interest\nMichigan argues that the trial court erred by denying Michigan and CFM\u2019s request for prejudgment interest. American argues that Michigan and CFM are not entitled to prejudgment interest, because their theory of recovery was based on equitable claims and not on a written contract.\nIn denying Michigan and CFM\u2019s request for prejudgment interest, the trial court stated that Michigan and CFM cited to no authority and provided no factual basis for their claim. A trial court\u2019s decision to award prejudgment interest is within its sound discretion and is subject to reversal only where there has been an abuse of discretion. Cunningham v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 389 Ill. App. 3d 1065, 1077 (2009).\nIn this case, the record supports the trial court\u2019s statements. Michigan and CFM\u2019s complaint simply requested prejudgment interest, without citation to authority, factual support, or argument. In light of the record before us, we cannot say that the trial court abused its discretion by denying Michigan and OEM\u2019s request for prejudgment interest. See In re Marriage of Shurtz, 382 Ill. App. 3d 1123, 1127 (2008).\nMichigan cites to Milligan v. Gorman, 348 Ill. App. 3d 411 (2004), to support its argument. However, Milligan is distinguishable from the case at bar. In Milligan, it was clear that the defendant had breached a written settlement agreement. Milligan, 348 Ill. App. 3d at 416. In this case, it was not as clear that American breached an agreement. The trial court in this case found that, while it did not agree with American\u2019s position, American did not act in bad faith. The trial court did not abuse its discretion. Therefore, Milligan is not controlling here.\nThe judgment of the trial court of Lake County is affirmed.\nAffirmed.\nHUTCHINSON and JORGENSEN, JJ., concur.\nWe note that, because the parties\u2019 policy limits were the same ($1 million per occurrence), American must pay half of the settlement amount. See Progressive Insurance Co. v. Universal Casualty Co., 347 Ill. App. 3d 10, 20 (2004) (in a cause of action for equitable contribution, the loss or settlement amount is prorated between the insureds based on policy limits).", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Keith G. Carlson, of Carlson Law Offices, of Chicago, for appellant.", "R. Howard Jump and Mei Chen, both of Jump & Associates, of Chicago, for appellee Michigan Mutual Insurance Company." ], "corrections": "", "head_matter": "AMERICAN STATES INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. CFM CONSTRUCTION COMPANY, Defendant and Counterplaintiff-Appellee (Michigan Mutual Insurance Company, Defendant and Counterplaintiff-Appellee and Cross-Appellant; Francisco Flores, Defendant).\nSecond District\nNo. 2\u201408\u20140781\nOpinion filed January 12, 2010.\nRehearing denied March 29, 2010.\nKeith G. Carlson, of Carlson Law Offices, of Chicago, for appellant.\nR. Howard Jump and Mei Chen, both of Jump & Associates, of Chicago, for appellee Michigan Mutual Insurance Company." }, "file_name": "0994-01", "first_page_order": 1010, "last_page_order": 1021 }