{ "id": 4305098, "name": "JOHN MONDSCHEIN et al., Plaintiffs, v. POWER CONSTRUCTION COMPANY et al., Defendants (John Mondschein, as Assignee of Power Contracting and Engineering Corporation, Defendant and Third-Party Plaintiff-Appellee; Joliet Steel and Construction, Inc., Third-Party Defendant-Appellant)", "name_abbreviation": "Mondschein v. Power Construction Co.", "decision_date": "2010-09-28", "docket_number": "No. 1\u201409\u20142278", "first_page": "601", "last_page": "611", "citations": [ { "type": "official", "cite": "404 Ill. App. 3d 601" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "397 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4293931 ], "year": 2009, "pin_cites": [ { "page": "43-44", "parenthetical": "where the insurance funds paid for by the third-party defendant did not completely cover the loss, it was error to dismiss the third-party plaintiffs contribution action" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/397/0013-01" ] }, { "cite": "296 Ill. App. 3d 584", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222615 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "where the construction contract evidenced an intent to provide for potential losses first by the mechanism of insurance and the party was fully protected from the loss through that insurance, there was no right to contribution" }, { "page": "591", "parenthetical": "where a loss in excess of the limits of the insurance policy remains, a party may assert its right to contribution with respect to that amount" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0584-01" ] }, { "cite": "267 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333130 ], "weight": 4, "year": 1994, "pin_cites": [ { "parenthetical": "where the joint insurance policy did not fully protect one party against liability, contribution was allowed to the extent of that party's actual loss" }, { "page": "55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0051-01" ] }, { "cite": "197 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2483261 ], "year": 1990, "pin_cites": [ { "page": "905", "parenthetical": "court held that where the parties' joint insurance absorbed the entire liability and where the parties agreed that insurance would be provided as part of their contract, the contract must be interpreted as providing \"mutual exculpation\" to the bargaining parties" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0902-01" ] }, { "cite": "224 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607023 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "559" }, { "page": "560" }, { "page": "565" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0550-01" ] }, { "cite": "275 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906729 ], "year": 1995, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0628-01" ] }, { "cite": "319 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527756 ], "year": 2001, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0390-01" ] }, { "cite": "224 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252684 ], "year": 1991, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0418-01" ] }, { "cite": "304 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564633 ], "year": 1999, "pin_cites": [ { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0809-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "207 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975002 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "367" }, { "page": "367-68" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0359-01" ] }, { "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": 834, "char_count": 23526, "ocr_confidence": 0.785, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14493817979349374 }, "sha256": "ed060a6121ccc3f9a3def044cc91e3aef2f78d208ff5cee38393fe5154196919", "simhash": "1:3b7d5cfb49b0fa5d", "word_count": 3694 }, "last_updated": "2023-07-14T16:58:54.131587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN MONDSCHEIN et al., Plaintiffs, v. POWER CONSTRUCTION COMPANY et al., Defendants (John Mondschein, as Assignee of Power Contracting and Engineering Corporation, Defendant and Third-Party Plaintiff-Appellee; Joliet Steel and Construction, Inc., Third-Party Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nThis appeal arises out of an assignment of a third-party contribution action in connection with a construction site accident. In the underlying lawsuit, plaintiff, John Mondschein, an injured worker at the site, sued the general contractor, Power Contracting and Engineering Corporation (Power), among others, for negligence. Power then filed a third-party complaint for contribution against Mondschein\u2019s employer, Joliet Steel & Construction, Inc. (Joliet Steel), a subcontractor on the project. Mondschein ultimately settled the underlying action against Power for $2,673,000 and an assignment of Power\u2019s third-party claim for contribution against Joliet Steel. Mondschein, as assignee of Power, then filed an amended third-party complaint against Joliet Steel seeking contribution under the Illinois Joint Tortfeasor Contribution Act (the Contribution Act) (740 ILCS 100/1 et seq. (West 2002)). After a trial on the contribution claim, a jury apportioned the liability of Joliet Steel at 35%. The trial court entered judgment against Joliet Steel for 35% of Power\u2019s total loss of $2,673,000.\nOn appeal, Joliet Steel raises the following contentions: (1) the circuit court erred in denying its motion to dismiss the contribution action pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 2006)), because Power had no right to assign its contribution claim; and (2) the circuit court erred in denying its right to a setoff based on the insurance it already purchased on Power\u2019s behalf as an additional insured on Joliet Steel\u2019s commercial general liability (CGL) policy. For the following reasons, we affirm in part and reverse and remand in part with directions.\nBACKGROUND\nIn May 2003, Loyola University entered into a construction contract with Power for a project known as the Life Sciences Education and Research Building at Loyola\u2019s Chicago campus. Power subsequently entered into a subcontract with Waukegan Steel Sales, Inc., for the performance of all of the ironwork. In turn, Waukegan then subcontracted with Joliet Steel for the performance of the steel work. That subcontract contained a provision that stated in pertinent part as follows:\n\u201cSubcontractor indemnifies and holds harmless *** the prime or general contractor, the owner and others required in the Project contract Documents *** from and against all claims, damages, losses and expenses *** arising out of or resulting from Subcontractor\u2019s work, goods or services provided hereunder.\u201d\nThe subcontract also contained a provision which required Joliet Steel to purchase CGL insurance, naming Power as an additional insured with respect to operations performed under the subcontract with limits of $1 million per occurrence.\nIn accordance with the subcontract, Joliet Steel purchased a CGL policy from Cincinnati Insurance Company with a limit of liability of $1 million per occurrence. Power was named as an additional insured on the policy with respect to \u201coperations performed by [Joliet Steel] in connection with [the] project.\u201d The Cincinnati CGL policy also had an exclusion for employer liability coverage for bodily injuries to Joliet Steel\u2019s employees arising out of or in the course of their employment.\nOn December 2, 2003, Mondschein, a Joliet Steel employee, was injured while working at the construction site. He initially filed a workers\u2019 compensation claim against Joliet Steel. Its workers\u2019 compensation insurer, United Heartland Insurance Company, satisfied that claim. United Heartland then acquired a workers\u2019 compensation lien against any settlement proceeds Mondschein potentially would receive from a third party. Mondschein then filed a complaint against Power, Loyola, and Lindahl Brothers, Inc., another subcontractor, alleging that their negligence directly contributed to his injuries. Power then filed a third-party complaint for contribution against Joliet Steel pursuant to the Contribution Act. 740 ILCS 100/1 et seq. (West 2002).\nOn December 7, 2007, Mondschein entered into a settlement agreement with Power, Loyola, and Lindahl. The settlement agreement provided that Power, Loyola, and Lindahl would pay Mondschein $2.8 million and, as additional consideration, Power would assign to Mondschein its contribution claim against Joliet Steel. Under the settlement allocation, Cincinnati agreed to pay $1 million on behalf of Power. Power\u2019s other insurers paid an additional $1.7 million on its behalf. Additionally, Joliet Steel did not waive its workers\u2019 compensation lien. Therefore, as required under the Workers\u2019 Compensation Act (820 ILCS 305/5(b) (West 2006)), Mondschein agreed to satisfy the workers\u2019 compensation lien out of the settlement proceeds. On December 13, 2007, the circuit court entered an order finding the settlement was made in good faith and dismissed the underlying claims against the settling defendants.\nThereafter, Joliet Steel filed a motion to dismiss Power\u2019s pending third-party contribution action. Therein, it maintained that the contribution action could not stand because, inter alia, the settlement agreement failed to extinguish Joliet Steel\u2019s liability and failed to properly allocate the settlement among the settling defendants. In response to the motion to dismiss, on May 2, 2008, Mondschein and the settling defendants executed a revised settlement agreement.\nUnder the revised agreement, the parties clarified that Cincinnati paid $1 million on behalf of Power and that Power\u2019s other insurers paid $1,673,000 on Power\u2019s behalf. The revised agreement also provided that in addition to releasing the tort claims of the settling defendants, Mondschein extinguished the tort liability of Joliet Steel. Over Joliet Steel\u2019s objection, the circuit court granted Mondschein\u2019s motion for a good-faith finding as to the revised agreement. Thereafter, Joliet Steel withdrew its motion to dismiss the contribution action.\nSubsequently, Mondschein, as assignee of Power, filed an amended third-party contribution action against Joliet Steel. In response, Joliet Steel filed a motion to dismiss the amended action pursuant to section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2008)), arguing that Cincinnati funded the settlement and, therefore, was subrogated to Power\u2019s right to contribution under section 2(f) of the Contribution Act. 740 ILCS 100/2(f) (West 2008). Therefore, as subrogee, it was the real party-in-interest and Power had no contribution rights to assign. The circuit court denied Joliet Steel\u2019s motion to dismiss.\nJoliet Steel then filed an answer and affirmative defenses to the amended contribution action. Therein, it asserted under Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), that any right of contribution was limited by its workers\u2019 compensation liability. It also asserted that it had a right to a setoff of the $1 million policy it had purchased, which was paid on behalf of Power in settlement of the underlying lawsuit.\nThe contribution action against Joliet Steel proceeded to a trial, and the jury apportioned the liability of Joliet Steel at 35%. On July 31, 2009, the circuit court made the following findings: (1) Joliet Steel waived its right to limit its liability to workers\u2019 compensation; (2) its waiver did not violate the Illinois Construction Contract Indemnification for Negligence Act (Anti-Indemnification Act) (740 ILCS 35/0.01 (West 2008)); (3) it did not have a right to a setoff; and (4) it was liable for 35% of $2,673,000, which was Power\u2019s total loss. Joliet Steel then filed this timely appeal.\nANALYSIS\nJoliet Steel initially contends that the circuit court erred in denying its motion to dismiss the contribution action pursuant to section 2 \u2014 619(a)(9) of the Code. Section 2 \u2014 619(a)(9) permits involuntary dismissal where \u201cthe claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 2008). The provision provides a means for disposing of issues of law or easily proved issues of fact at the outset of the case. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). The defendant bears the initial burden of proof of the affirmative matter and, if satisfied, the burden shifts to the plaintiff to show that \u201cthe defense is unfounded or requires the resolution of an essential element of material fact before it is proven.\u201d Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). When ruling on a motion to dismiss, the court \u201c \u2018must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.\u2019 \u201d Van Meter, 207 Ill. 2d at 367-68, quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). Our review of a dismissal under section 2 \u2014 619 is de novo. Van Meter, 207 Ill. 2d at 368.\nSpecifically, Joliet Steel attacks the validity of the assignment of the contribution claim to Mondschein. Although it generally recognizes that a right to contribution under the Contribution Act may be assigned (Block v. Pepper Construction Co., 304 Ill. App. 3d 809, 815 (1999)), it maintains that the insurers, by paying the underlying settlement in full on Power\u2019s behalf, were then subrogated to Power\u2019s right of contribution under section 2(f) of the Contribution Act. 740 ILCS 100/2(f) (West 2006). As a result, it argues that the insurers were the only parties with an enforceable right to assign and, therefore, Power\u2019s assignment of an inchoate right was not a valid assignment and Mondschein\u2019s amended third-party complaint for contribution must be dismissed.\nIn response, Mondschein argues that even if the insurers had the sole right to assign the contribution claim, it sufficiently established that the insurers agreed to assign their subrogation rights. In support, Mondschein presented the revised settlement agreement as evidence that an assignment of the right of contribution included Power\u2019s insurers. The agreement provided that the assignment was entered into by and between Mondschein and Power, and it defined Power to include its \u201cinsurers.\u201d The insurers never executed the revised settlement agreement. However, no objection to the assignment was ever raised at the time of the settlement or at the time of the good-faith finding by the circuit court.\nAdditionally, in response to the motion to dismiss, Mondschein presented a confirmation of assignment, which was signed and notarized by the insurers\u2019 counsel on the insurers\u2019 behalf. Therein, it provided as follows:\n\u201cThis Confirmation of Assignment is intended to confirm the fact that [Power] and their insurers, Cincinnati Insurance Companies, St. Paul/Travelers Insurance Companies, and Illinois National Insurance Company, assigned their respective rights to any and all contribution claims against Joliet Steel to [Mondschein] as evidenced by the [settlement agreement] and clarified by the [revised settlement agreement]. This document is to make clear that any rights to contribution claims held by the insurance companies of Power *** are hereby assigned to [Mondschein].\u201d\nHere, where Mondschein offered proof establishing facts that would obviate the grounds of the defect, namely, that the insurers agreed to assign any subrogated right to contribution to him, the court properly denied the motion. 735 ILCS 5/2 \u2014 619(c) (West 2008).\nNext, we are asked to consider whether the circuit court erred in denying Joliet Steel\u2019s affirmative defense, namely, a right of setoff to the contribution liability owed to Power. Initially, Mondschein contends that Joliet Steel forfeited its right to raise this affirmative defense because it failed to raise it until six weeks before trial on the contribution claim.\nPursuant to section 2 \u2014 613 of the Code, affirmative defenses must be set forth in the answer or the reply to a complaint. 735 ILCS 5/2\u2014 613 (West 2006). Here, although Joliet Steel did not plead the defense of setoff in its answer to the original contribution action brought by Power, at that time, the defense had not yet been perfected; Cincinnati had not yet agreed to cover Power for the loss. Mondschein subsequently filed its amended contribution claim as assignee. In response, Joliet filed a motion to dismiss that was subsequently denied. Thereafter, it timely filed its answer and its affirmative defense to the amended pleading.\nMoreover, \u201cfailure to plead an affirmative defense in an initial answer is not necessarily a waiver.\u201d Rognant v. Palacios, 224 Ill. App. 3d 418, 422 (1991). Rather, section 2 \u2014 616(a) of the Code (735 ILCS 5/2 \u2014 616(a) (West 2006)) permits a party to amend its pleadings to include an affirmative defense any time prior to judgment. Consequently, we reject Mondschein\u2019s argument that the affirmative defense asserted in Joliet Steel\u2019s answer to the amended contribution complaint was forfeited.\nWe note that forfeiture is particularly inappropriate where the party asserting the forfeiture has had ample time to respond to the defense and, as a result, has not been unfairly prejudiced. Horwitz v. Bankers Life & Casualty Co., 319 Ill. App. 3d 390, 399 (2001). The decision of whether prejudice will be suffered lies with the trial court, and it will not be reversed absent an abuse of discretion. Ocasek v. City of Chicago, 275 Ill. App. 3d 628, 637 (1995). Here, Mondschein had ample time to respond to the defense and, therefore, has not been unduly prejudiced.\nTurning to the merits, in order to determine Joliet Steel\u2019s contribution liability in the present case, it is important to note that although Joliet Steel asserted the protection of the Workers\u2019 Compensation Act as an affirmative defense to the action in contribution, the circuit court found, and it is undisputed on appeal, that Joliet Steel waived its limited liability protection by the \u201cindemnity\u201d provisions in its contract. Thus, it agreed to remain liable in contribution for its full pro rata share of damages proximately caused by its negligence. See Virginia Surety Co. v. Northern Insurance Co., 224 Ill. 2d 550, 559 (2007).\nAdditionally, the circuit court held, and it is undisputed on appeal, that the \u201cindemnity\u201d provisions in the contract did not violate the Anti-Indemnification Act (740 ILCS 35/0.01 et seq. (West 2008)), which would render void any agreement in a construction contract that attempts to indemnify or hold a person harmless from that person\u2019s own negligence. Virginia Surety, 224 Ill. 2d at 560.\nWith this background, we are asked to consider Joliet Steel\u2019s contentions. The Contribution Act permits one tortfeasor \u201cwho has paid more than his pro rata share of the common liability\u201d to recover \u201cthe amount paid by him in excess of his pro rata share.\u201d 740 ILCS 100/2(b) (West 2006). Joliet Steel maintains that the total common liability was $2,673,000. The jury determined that Joliet Steel was responsible for 35% of the total liability, which is $935,550. However, it argues that it has satisfied its entire pro rata share of contribution fault through the $1 million insurance policy it agreed to purchase on Power\u2019s behalf from Cincinnati.\nIn support, Joliet Steel cites cases where courts have applied various analytic approaches to determine the impact on a contribution claim where there was an agreement to procure insurance, and a settlement was reached under which the insurance absorbed all or part of the liability of the party seeking contribution. See, e.g., Briseno v. Chicago Union Station Co., 197 Ill. App. 3d 902, 905 (1990) (court held that where the parties\u2019 joint insurance absorbed the entire liability and where the parties agreed that insurance would be provided as part of their contract, the contract must be interpreted as providing \u201cmutual exculpation\u201d to the bargaining parties); Kirincich v. Jimi Construction Co., 267 Ill. App. 3d 51 (1994) (where the joint insurance policy did not fully protect one party against liability, contribution was allowed to the extent of that party\u2019s actual loss); Kehoe v. Commonwealth Edison Co., 296 Ill. App. 3d 584 (1998) (where the construction contract evidenced an intent to provide for potential losses first by the mechanism of insurance and the party was fully protected from the loss through that insurance, there was no right to contribution); Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 43-44 (2009) (where the insurance funds paid for by the third-party defendant did not completely cover the loss, it was error to dismiss the third-party plaintiffs contribution action).\nThe question before us here is what effect the $1 million paid in settlement of the liability claims on behalf of Power had on Power\u2019s right to contribution from Joliet Steel in this action. In order to determine the impact, we begin by examining Joliet Steel\u2019s contractual obligations and the language of the insurance policy under which Power was named as an additional insured.\nIn accordance with its contractual obligations, Joliet Steel agreed to purchase a CGL policy naming Power as an additional insured to cover Power\u2019s losses attributable to Joliet Steel\u2019s work. Under Cincinnati\u2019s additional insured endorsement, Cincinnati\u2019s policy covered Power as an additional insured to the extent that Power\u2019s liability arose out of Joliet Steel\u2019s work; it did not provide coverage for Power\u2019s own direct negligence. The policy endorsement specifically defines an additional insured in pertinent part as follows:\n\u201cAny person or organization, hereinafter referred to as ADDITIONAL INSURED:\n* *\n(2) For whom you are required to add as an additional insured on this Coverage Part under:\n(1) A written contract or agreement\n\u00edj\u00ed %\nbut only with respect to liability arising out of \u2018your work\u2019 performed for that additional insured by you or on your behalf.\u201d\nThus, in funding the settlement agreement, the $1 million paid on behalf of Power by Cincinnati was paid to cover Power\u2019s losses with respect to its vicarious liability for the negligent acts of Joliet Steel, and not for Power\u2019s own negligence, for which it was found to be 65% liable.\nBased upon the language of the policy, the $1 million cannot be considered to have contributed to extinguishing Power\u2019s direct liability to Mondschein. Rather, the parties agreed contractually that Joliet Steel would reimburse Power for its vicarious liability through the purchase of insurance. As explained in Virginia Surety, \u201ccontribution\u201d and \u201cindemnification\u201d are two separate concepts. Contribution is \u201c \u2018[t]he right that gives one of several persons who are liable on a common debt the ability to recover ratably from each of the others when that one person discharges the debt for the benefit of all; the right to demand that another who is jointly responsible for a third party\u2019s injury supply part of what is required to compensate the third party.\u2019 \u201d Virginia Surety, 224 Ill. 2d at 565, quoting Black\u2019s Law Dictionary 352-53 (8th ed. 2004). In contrast, \u201c[ijndemnity is the 1 [rleimbursement or compensation for loss, damage, or liability in tort; esp., the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty.\u2019 \u201d Virginia Surety, 224 Ill. 2d at 566, quoting Black\u2019s Law Dictionary 784 (8th ed. 2004).\nHere, Power has already been reimbursed by the Cincinnati policy purchased by Joliet to the extent of its secondary liability. Power cannot seek further recovery from Joliet Steel for the $1 million loss against which it has already been fully protected and indemnified through Joliet Steel\u2019s purchase of insurance. To allow such recovery would mean that the party that purchased the policy endorsement and paid the premium would then bear that particular loss twice by both indemnification and contribution.\nHowever, to the extent of its direct negligence, Power has incurred a loss of $1,673,000 that was not funded by Cincinnati. Thus, contribution should be allowed to the extent of Power\u2019s loss in excess of the limits of the insurance procured by Joliet Steel. Kehoe, 296 Ill. App. 3d at 591 (where a loss in excess of the limits of the insurance policy remains, a party may assert its right to contribution with respect to that amount). Here, under the settlement agreement, Power incurred a $1,673,000 loss to extinguish the common liability. Thus, Mondschein, as assignee, should be able to obtain contribution for that amount that exceeds Power\u2019s pro rata share of the common liability, which, based on the apportionment by the jury, would be 35% of the $1,673,000.\nThis conclusion is consistent with the case law cited by Joliet Steel. For example, in Kirincich v. Jimi Construction Co., 267 Ill. App. 3d 51 (1994), the general contractor filed a third-party action for contribution against a subcontractor after it was sued by the subcontractor\u2019s employee for an injury which occurred on the construction site. The subcontractor filed a motion to dismiss and asserted that since the general contractor was an additional insured under the subcontractor\u2019s insurance policy, it was barred from seeking contribution. The court held that although the total liability to the plaintiff was $275,000, the parties\u2019 joint insurer had provided $225,000 in coverage, leaving the general contractor with a loss of $50,000 which was to be covered by the general contractor\u2019s own insurer. The court concluded that the contractor could pursue its contribution action against the subcontractor for the amount that was not covered by the joint insurance. Kirincich, 267 Ill. App. 3d at 55. \u201cWhere the joint insurance policy has not fully protected one of the parties against liability, contribution should be allowed to the extent of the party\u2019s actual loss.\u201d Kirincich, 267 Ill. App. 3d at 55.\nSimilarly, here, where Power has a loss not covered by the insurance procured by Joliet Steel, it is entitled to pursue its statutory right to contribution against Joliet Steel for the amount that was not covered. Accordingly, Mondschein, as assignee, should have a right of contribution for 35% of the $1,673,000 common liability.\nFor the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed and remanded in part for entry of an order providing that Joliet Steel is liable in contribution for its pro rata share of the common liability, which represents 35% of Power\u2019s $1,673,000 loss.\nAffirmed in part and reversed in part; cause remanded with directions.\nKARNEZIS and CUNNINGHAM, JJ., concur.\nMondschein also sued other defendants, including Waukegan Steel, but they were granted summary judgment.\nThe remaining $100,000 was paid by other insurers on behalf of Lindahl and Loyola.\nThe remaining $27,000 of coverage was allocated to Mondschein\u2019s wife, who had also been a party to the underlying suit.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Jill B. Lewis, of Law Offices of Francis J. Marasa, Ltd., of Chicago, for appellant.", "Clifford W. Horwitz, Jay R. Luchsinger, and Thomas A. Kelliher, all of Horwitz, Horwitz & Associates, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "JOHN MONDSCHEIN et al., Plaintiffs, v. POWER CONSTRUCTION COMPANY et al., Defendants (John Mondschein, as Assignee of Power Contracting and Engineering Corporation, Defendant and Third-Party Plaintiff-Appellee; Joliet Steel and Construction, Inc., Third-Party Defendant-Appellant).\nFirst District (2nd Division)\nNo. 1\u201409\u20142278\nOpinion filed September 28, 2010.\nRehearing denied October 25, 2010.\nJill B. Lewis, of Law Offices of Francis J. Marasa, Ltd., of Chicago, for appellant.\nClifford W. Horwitz, Jay R. Luchsinger, and Thomas A. Kelliher, all of Horwitz, Horwitz & Associates, Ltd., of Chicago, for appellee." }, "file_name": "0601-01", "first_page_order": 617, "last_page_order": 627 }