Christy-Foltz, Inc. v. Safety Mutual Casualty Corp., No. 4-99-0185

4th District, 7 January 2000

JUSTICE KNECHT delivered the opinion of the court:

In July 1998, plaintiff, Christy-Foltz, Inc. (Christy-Foltz) sought a declaratory judgment to determine whether its contribution liability in excess of the so-called Kotecki cap (see Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023, 1027-28 (1991)) was covered by its workers' compensation and employer's liability insurance policy issued by defendant, Safety Mutual Casualty Corporation, now known as Safety National Casualty Corporation (Safety National). Safety National contended plaintiff's contribution liability in excess of the Kotecki cap was a loss "voluntarily assumed" by the plaintiff under a May 1991 contract between plaintiff as a subcontractor and a third-party contractor and is, therefore, excluded from coverage under the terms of the policy. On cross-motions for summary judgment, the trial court agreed with Safety National. We agree with the defendant as well and affirm the judgment of the trial court.

I. BACKGROUND

The record reveals the following undisputed facts. On November 26, 1986, the defendant, Safety National, issued a workers' compensation and employer's liability insurance policy to the plaintiff, Christy-Foltz, with effective dates from November 26, 1990, through November 26, 1991.

On July 8, 1991, Marc Bohanan, an employee of Christy-Foltz, sustained injuries while working on a construction project in which Christy-Foltz was engaged as a subcontractor by Litton Industrial Services, Inc. (LISI).

A. Suit for Negligence and Structural Work Act Violations: Peoria County Case No. 93-L-108

On June 27, 1995, Bohanan filed a common-law action against LISI in Peoria County case No. 93-L-108, alleging negligence and willful violations of the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, pars. 59.90 to 69 (see 740 ILCS 150/0.01 et seq. (West 1994), repealed by Pub. Act 89-2,