as an indemnification provision prohibited by the Indemnification Act.
Sherwin-Williams's original third-party complaint based its breach of contract claim on Article 11.1.3 of the Contract Documents, which specifically required Berglund to purchase insurance that would cover Berglund's personal liability under article 4.18.1 of the Contract Documents. This court previously held Article 4.18.1 to be void as against public policy under section 1 of the Indemnification Act and the requirement of Article 11.1.3 to be likewise void and unenforceable. However, as Sherwin-Williams has identified in its first amended third-party complaint, Article 11.1.3 was replaced with Article 11.1 of the Supplement. The Supplement replaced the language that required Berglund to obtain insurance covering its indemnification liability with language requiring Berglund to maintain comprehensive general liability insurance coverage, including coverage for Sherwin-Williams.
Not all attempts to shift responsibility are void as against public policy, and Illinois courts have distinguished agreements that require a party to procure insurance against indemnification provisions from agreements that require a party to furnish general liability insurance. Bosio v. Branigar Org., Inc., 154 Ill. App. 3d 611, 506 N.E.2d 996, 107 Ill. Dec. 105 (1987); Zettel v. Paschen Contractors, Inc., 100 Ill. App. 3d 614, 427 N.E.2d 189, 56 Ill. Dec. 109 (1981); Rome v. Commonwealth Edison Co., 81 Ill. App. 3d 776, 781, 401 N.E.2d 1032, 1036, 36 Ill. Dec. 894 (1980). In Zettel, the court considered a provision in which a subcontractor agreed to secure insurance to provide indemnity for the owner, the architect, and the contractor for all losses arising out of a construction project. The court distinguished between a promise to obtain insurance and a promise to personally indemnify another party, stating, "Under an indemnity agreement, the promisor agrees to assume all responsibility and liability for any injuries or damages. Under an agreement to obtain insurance the promisor merely agrees to procure the insurance and pay the premium on it." Following the logic of the Zettel court, a party that contracts to obtain insurance coverage for another does not by such contract become an insurer. The promisor's obligation ends with the procurement of the insurance, and the promisor bears no responsibility to the promisee in the event of injury or damages.
Berglund has argued that this court should follow the decision reached in Shaheed v. Chicago Transit Authority, 137 Ill. App. 3d 352, 484 N.E.2d 542, 92 Ill. Dec. 27 (1985). In Shaheed, a third-party complainant sought damages against a subcontractor for the breach of contract to maintain insurance. Clause 3 of the agreement between the parties obligated the subcontractor to cause a contractual liability or hold harmless endorsement to be issued by the insurance company insuring all of the subcontractor's indemnity obligations under that agreement. Shaheed, 137 Ill. App. 3d 352, 363, 484 N.E.2d 542, 92 Ill. Dec. 27 . Clause 5 of the contract, which did not refer to the requirement to maintain insurance, provided that the subcontractor indemnify and hold harmless the contractor from any loss, damage, or liability. In construing the contract, the Shaheed court found that clause 5 was void under section 1 of the Indemnification Act as a promise to indemnify another from that person's own negligence. Shaheed, 137 Ill. App. 3d 352, 364-5, 484 N.E.2d 542, 92 Ill. Dec. 27 . The court distinguished Zettel by noting that the agreement in that case was one to procure insurance against claims brought under the Structural Work Act, and was not one insuring an indemnity provision contrary to the Indemnification Act. Shaheed, 137 Ill. App. 3d 352, 365, 484 N.E.2d 542, 92 Ill. Dec. 27 .
This court relied on the Shaheed opinion when it previously granted Berglund's motion to dismiss count II of Sherwin-Williams's original third-party complaint. As previously mentioned, Sherwin-Williams's original complaint sought relief based on Berglund's contractual indemnification. Following Shaheed, this court dismissed Sherwin-Williams's complaint, stating that "article 11.1.3 [of the Contract Documents, as unamended by the Supplement] would require Berglund, in effect, to purchase indemnity insurance to cover obligations which the statute prohibits, namely '. . . to indemnify or hold harmless another person from that person's own negligence.'" Lulich v. Sherwin-Williams Co., No. 89 C 1707 (N.D. Ill. March 12, 1991). While Shaheed was dispositive of the original third-party complaint, in light of Sherwin-Williams's amended count II and its emphasis on Article 11.1 of the Supplement, the Shaheed opinion is inapposite to the facts presently before this court. Sherwin-Williams' amended third-party complaint does not, like the original, seek contractual indemnification from Berglund. Rather, Sherwin-Williams seeks damages for Berglund's failure to obtain the specific general liability insurance coverage contracted for in the Supplement. In its response to the present motion, Berglund has erroneously focused on Article 11.1.3 of the Contract Documents, which was deleted and replaced by Article 11.1 of the Supplement. Given the inapplicability of the prohibited Article 11.1.3, Berglund's reliance on Shaheed is not persuasive.
The provision of Article 11.1 of the Supplement, which requires Berglund to obtain comprehensive general liability insurance, including, Sherwin-Williams' protective liability insurance, is not void under Section 1 of the Indemnification Act because Section 1 applies to indemnification agreements and not to agreements for the procurement of insurance. Furthermore, Article 11.1 does not violate the public policy concerns embodied in the Indemnification Act, because an agreement requiring a contractor to provide insurance protecting the owner also protects the interests of the construction worker and the general public by reserving a potential source of compensation for injured workers. Capua v. W.E. O'Neil Constr. Co., 67 Ill. 2d 255, 367 N.E.2d 669, 10 Ill. Dec. 216 (1977); Bosio v. Branigar Org., inc., 154 Ill. App. 3d 611, 506 N.E.2d 996, 107 Ill. Dec. 105 (1987). Pursuant to the Supplement, Berglund was to procure and maintain insurance protecting Sherwin-Williams from loss or liability by reason of personal injuries. Both parties acknowledge that no such insurance coverage was provided. As noted by the Zettel court, "a person breaching an agreement to obtain liability insurance is liable for all resulting damages including the amount of judgments against the promisee and the costs of defense." Zettel, 100 Ill. App. 3d at 620, 427 N.E.2d at 193. Accordingly, Sherwin-Williams is entitled to recoup the costs of its defense of the underlying action, including attorneys' fees, not to exceed the amount of the applicable coverage that the parties had agreed would be provided.
For the reasons stated above, Sherwin-Williams' motion for summary judgment on Count II of its first amended third-party complaint is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court