United States District Court, N.D. Illinois, Eastern Division
November 22, 2004.
ELECTRIC INSURANCE COMPANY and CONTINENTAL CASUALTY COMPANY Plaintiffs,
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Defendant.
The opinion of the court was delivered by: RUBEN CASTILLO, District Judge
MEMORANDUM OPINION AND ORDER
This case involves a dispute between three insurance companies
arising out of a tragic accident at one of Commonwealth Edison's
("ComEd") nuclear power plants. Gerald Vance, a pipefitter and
welder, was severely injured while working at the power plant and
secured a $744,497.83 personal injury judgment ("the Vance
judgment") against ComEd. Plaintiffs, Electric Insurance Company
("EIC") and Continental Casualty Company ("Continental"), demand
that Defendant National Union Fire Insurance Company of
Pittsburgh ("National Union") pay a pro rata share of this
judgment. Both parties have filed motions for summary judgment.
For the reasons provided below, we grant Plaintiffs' summary
judgment motion, (R. 14-2), and deny National Union's summary
judgment motion, (R. 19-1).
ComEd hired Power Systems Energy Services, Inc. ("PSESI"),
General Electric ("GE"), and GD Staff & Associates ("GDS") as
contractors at its Dresden nuclear power plant in Grundy County,
Illinois. (R. 20, Def.'s Resp. ¶ 8.) These three contractors all
obtained commercial general liability insurance. (Id.) PSESI
obtained insurance from National Union. (Id. ¶ 23.) Under this policy, ComEd was named as an additional insured, "but
only with respect to liability arising out of [PSESI's]
operations or premises owned by or rented by [PSESI]." (Id. ¶¶
25, 27.) GE was also insured by National Union, but GE's policy
was reinsured by EIC. (Id. ¶¶ 29-30.) GDS was insured by
Continental. (Id. ¶ 28.) The GE and GDS policies both contained
subrogation clauses. (Id. ¶¶ 33-34.) The GE subrogation clause
If the insured has rights to recover all or part of
any payment the Company has made under this Coverage
Part, those rights are transferred to the Company.
the [sic] insured must do nothing after loss to
impair them. Upon request, the insured will bring
suit or transfer those rights to the Company and help
(Id. ¶ 33.) The GDS subrogation clause provided that:
If the insured has rights to recover all or part of
any payment we have made under this Coverage Part,
those rights are transferred to us. The insured must
do nothing after loss to impair them. At our request,
the insured will bring "suit" or transfer those
rights to us and help us enforce them.
(Id. ¶ 34.) Both policies also named ComEd as an additional
insured. (Id. ¶¶ 8, 28.)
ComEd hired PSESI to protect its employees from radiation
exposure. (Id. ¶ 9.) As part of its contract, PSESI determined
the radiological condition of scrap materials being removed from
a heat exchanger room undergoing demolition. (Id. ¶¶ 12-14.)
PSESI instructed the carpenters on how to erect scaffolding and
the pipecutters on how to cut pipe to ensure that all work
complied with its radiation work permit. (Id. ¶¶ 13-14.) PSESI
also advised ComEd on how to safely remove, transport, and store
the radioactive scrap material. (Id. ¶ 12.)
On April 21, 1997, Vance was severely injured when he fell off
of some scaffolding in the heat exchanger room. (Id. ¶¶ 16-21.)
Vance went into the room to inspect a weld identified as field
weld 57 that he had made earlier that day. (Id.) Before
entering the room, he told Richard Fults, a PSESI radiation
technician, that he needed to check field weld 57, and Fults went with him to perform his own inspection. (Id.) Fults
climbed to the top of the heat exchanger and was waiting for
Vance to join him to identify field weld 57. (Id.) Vance,
however, fell on his way to the top of the heat
Vance explained his accident in the following way:
And I told him [Fults], I said I've got to go in and
check something on Field Weld 57. He said I'll go
take a smear. I said well, it's new pipe. I don't
know you, know, you can if you want to. I'll go
take a smear so come go with me. So, we go in, and
he's ahead of me. He said where is it at? And I said
it's up on top of that heat exchanger up there. The
way he goes. He went right up the side of that pipe,
right up on that heat exchanger. Well, I followed him
. . .
He's standing there waiting on me because he don't
know where Field Weld 57 is. Well, as I started to go
on and try to get on up, this hand slipped off the
top of that pipe. . . . But I tried out of reflex to
stop myself, and all it amounted to is it spun me
around a little bit and I dropped straight down and
landed right straddle of that six-inch pipe stub.
(R. 18, Def.'s Opp'n, Ex. B, Vance Trial Transcript at 59-60,
62.) And Fults, the only witness to Vance's accident, described
it as follows:
We entered the heat exchanger actually Mr. Vance
approached me at our control point that we have
established in the RC, radiation controlled, area;
told me about some work that he needed to performed
[sic] in the heat exchanger room; proceeded to
follow him into the room. I went up the scaffold, and
then as I turned around, Mr. Vance was coming up on
the back side of the scaffold on the outside and
slipped or lost his footing or hold as he went to
reach slipped backwards and landed on and I think I
stated in my deposition it was approximately a
ten-inch pipe that he kind of straddled and landed on
. . .
I didn't know the location of the field well [sic].
I mean he described the number. They were all
designated by numbers, and when they would approach,
they would say we are going to field well [sic]
such and such, so I knew the number, but I didn't know where it was in the room, and that's why Mr.
Vance was going with me to show me where the field
well [sic] was.
(Id., Ex. C, Fults Trial Transcript at 4-5, 7-8.) Fults was
also asked if it was his "intention at the time to wait until Mr.
Vance climbed up on the scaffold to then tell you where field
well [sic] 57 was located," and he answered:
Just to see where they were. It was a lot of the
stuff we are doing was real small, so you almost had
to be real specific when you pointed stuff out if you
were doing something specific like that.
(Id., Ex. C, Fults Trial Transcript at 8.)
Vance sued ComEd for his personal injuries. (Id. ¶ 35.)
Plaintiffs agreed to defend and indemnify ComEd for any liability
arising out of Vance's injury. (R. 26, Pls.' Resp. ¶¶ 13, 16.)
ComEd requested that National Union also share the cost of its
defense with EIC and Continental on a pro rata basis in January
2001 and February 2002. (R. 20, Def.'s Resp. ¶¶ 36-37.) National
Union agreed in August 2002 to defend ComEd under a reservation
of rights. (Id. ¶ 39.) Vance prevailed at trial and obtained a
$744,497.83 judgment against ComEd, which Plaintiffs paid. (R.
26, Pls.' Resp. ¶¶ 15-16.) National Union asserts that it has no
duty to indemnify ComEd because Vance's injury did not arise out
of PSESI's operations, so it has not paid any part of the Vance
judgment. (R. 20, Def.'s Resp. ¶ 43; R. 26, Pls.' Resp. ¶ 18.)
Summary judgment is appropriate when the "pleadings,
depositions, answers to interrogatories, 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." Fed.R. Civ. P.
56(c). When determining whether a genuine issue of material fact exists, this Court evaluates all admissible evidence and
draws all reasonable inferences in the light most favorable to
the non-moving party. Treadway v. Gateway Chevrolet Oldsmobile
Inc., 362 F.3d 971, 975 (7th Cir. 2004). This Court will only
grant summary judgment if a trial is not required because no
rational trier of fact could rule in the non-moving party's
favor. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 502 (7th Cir.
Plaintiffs filed a motion for judgment on the pleadings or, in
the alternative, summary judgment, and National Union filed its
own summary judgment motion. We do not address Plaintiffs' motion
for judgment on the pleadings because it is more efficient to
directly address the cross summary judgment motions. No motions
to dismiss were filed in this case, so we must first determine
whether Plaintiffs have stated an actionable claim. If we find
that they have, we will then determine whether National Union has
a duty to indemnify ComEd and whether National Union is estopped
from raising any coverage defenses.
I. Plaintiffs' Amended Complaint
Plaintiffs' amended complaint seeks damages under five
alternate legal theories: (1) breach of contract; (2) equitable
contribution; (3) equitable subrogation; (4) unjust enrichment;
and (5) declaratory judgment. Throughout this section we assume
that National Union has a duty to indemnify ComEd in order to
determine whether any of Plaintiffs' five legal theories would
entitle them to damages.
A. Breach of Contract
ComEd has an actionable breach of contract claim against
National Union (assuming that National Union has a duty to
indemnify ComEd) because National Union has not indemnified ComEd. Plaintiffs, however, can only recover damages from this
breach of contract if they are subrogated to ComEd's breach of
contract claim, i.e., if they have the right to bring ComEd's
breach of contract claim on their own behalf. See 16 Couch on
Ins. 3d § 222:5 (2000). Plaintiffs can have this right through
contractual or equitable subrogation.*fn2 Union Planters
Bank, N.A. v. FT Mortgage Co., 794 N.E.2d 360, 364
(Ill.App.Ct. 2003). Contractual subrogation arises out of a contract while
equitable subrogation arises out of the court's equitable powers.
If Plaintiffs are contractually or equitably subrogated to
ComEd's breach of contract claim and if National Union had a duty
to indemnify ComEd, they would be entitled to damages under a
breach of contract theory.
1. Contractual Subrogation
Plaintiffs assert that they are contractually subrogated to
ComEd's breach of contract claim. "The right of an insurer to
subrogation is measured by and depends solely on the terms of the
subrogation provisions in the contract." Hack v. Multimedia
Cablevision, Inc., 696 N.E.2d 694, 696 (Ill.App.Ct. 1998).
Thus, in order to determine whether Plaintiffs are entitled to
bring ComEd's breach of contract claim against National Union on
their own behalf, we must examine their insurance contracts with
EIC is not contractually subrogated to ComEd's breach of
contract claim because it does not have a contractual
relationship with ComEd. See Reliance Ins. Co. v. Aerodyne
Eng'rs Inc., 612 N.Y.S.2d 87, 87-88 (N.Y.App. Div. 1994). EIC
only reinsured National Union's insurance policy with GE, so its
contractual rights stem solely from this reinsurance contract.
EIC has not asserted, let alone established, that it obtained National
Union's contractual subrogation rights under the reinsurance
Continental, however, is contractually subrogated to ComEd's
breach of contract claim. The subrogation clause in Continental's
insurance policy transferred to Continental ComEd's "rights to
recover all or part of any payment" made by Continental.
Continental has paid part of the Vance judgment, and ComEd's
breach of contract claim against National Union is a right to
recover part of that payment. Therefore, Continental is
contractually subrogated to ComEd's breach of contract claim.
National Union asserts that contractual subrogation only gives
Continental the right to recover payments made to
tortfeasors.*fn3 The subrogation clause does not contain
this limitation. It clearly and unambiguously states that
Continental has a right to recover "all or part of any payment."
National Union, nevertheless, asserts that Bituminous Casualty
Corporation v. Royal Insurance Company of America,
704 N.E.2d 74, 79 (Ill.App.Ct. 1998), justifies limiting contractual
subrogation to payments made by tortfeasors because the court
stated in that case that a subrogation clause "transfers to the
insurer remedies that the insured may have against a tortfeasor."
Yet the issue in Bituminous Casualty was whether a subrogation
clause transferred an insured's right to select exclusive
coverage. Id. The court's definition of subrogation was merely to distinguish an insurer's subrogation rights from an
insured's right to select exclusive coverage. Id. Furthermore,
the court stated a subrogation clause "transfers to the insurer
the right to sue any party whom the insured could have sued"
and stated that the "concept of subrogation generally involves
actions against tortfeasors." Id. (emphasis added). See also
16 Couch on Ins. 3d § 223:40 (2000) (stating that "subrogation to
contract rights has been often recognized"). Therefore,
Bituminous Casualty does not support National Union's argument.
2. Equitable Subrogation
An insurer is equitably subrogated to an insured's rights when
it involuntarily pays and thereby extinguishes a third party's
obligation to the insured. Progressive Ins. Co. v. Universal
Cas. Co., 807 N.E.2d 577, 585 (Ill.App.Ct. 2004). Equitable
subrogation is the appropriate remedy when one who is secondarily
liable satisfies a debt for which another is primarily
liable.*fn4 Home Ins. Co. v. Cincinnati Ins. Co.,
801 N.E.2d 997, 1000 (Ill.App.Ct. 2003). EIC is not equitably
subrogated to ComEd's rights because National Union, if it has a
duty to indemnify, and EIC are equally liable for the Vance
judgment. When co-obligors are equally liable for a debt, the
appropriate equitable remedy, as discussed in more detail below,
is equitable contribution.*fn5 See Progressive Ins. Co. v.
Universal Cas. Co., 807 N.E.2d 577, 584 (Ill.App.Ct. 2004). B. Equitable Contribution
"The right to equitable contribution arises when one insurer
pays money for the benefit of another insurer." Am. Nat'l Fire
Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA,
796 N.E.2d 1133, 1136 (Ill.App.Ct. 2003). Equitable contribution
"permits an insurer that has paid [an] entire loss to be
reimbursed by other insurers that are also liable for the loss."
Cincinnati Ins. Co. v. River City Constr. Co., 757 N.E.2d 676,
682 (Ill.App.Ct. 2001). To be entitled to equitable
contribution, Plaintiffs and National Union must share the same
liability, which means that the insurance policies giving rise to
the liability covered identical parties, interests, and risks.
Schal Bovis, Inc. v. Cas. Ins. Co., 732 N.E.2d 1179, 1186
The parties dispute whether they share the same liability.
National Union asserts, relying on Schal Bovis, that the
various insurance policies covered different risks because the
policies have three different named insureds. The Appellate Court
for the First District held in Schal Bovis, 732 N.E.2d at 1187,
that insurance policies with different named insureds covered
different risks because they only provided coverage to the
additional insured for liability that arose out of the named
insured's operations. Plaintiffs, however, assert that this
interpretation of identical risks unfairly benefits an insurer
who failed to indemnify the additional insured. The Appellate
Court for the Third District in River City, 757 N.E.2d at 682,
declined to adopt the Schal Bovis analysis for this precise
reason. The Third District held that, even though two policies
had different named insureds, the policies covered the same risk
because the additional insured "was insured for [liability
arising out of an employee's injury] under both policies." Id.
Given this split among the Illinois Appellate Courts, we must
predict how the Illinois Supreme Court would resolve this issue.
S. Ill. Riverboat Casino Cruises, Inc. v. Triangle Insulation & Sheet Metal Co., 302 F.3d 667, 674 (7th Cir.
2002). We find that the Illinois Supreme Court would adopt the
River City analysis because it is simple, equitable, and
promotes the prompt payment of claims. Using the River City
analysis a court determines whether various policies cover the
same risk by determining whether the various insurers have a duty
to indemnify the insured for the same loss. This straightforward
analysis ensures that liability is shared equitably because all
insurers who have a duty to indemnify will also have a duty to
contribute. In this way it promotes prompt payment because an
insurer can promptly pay a claim knowing that all other insurers
who are ultimately found to have a duty to indemnify will also
have a duty to contribute.
The Illinois Supreme Court would not adopt the Schal Bovis
analysis because the Schal Bovis court incorrectly determined
whether two policies cover the same risk by comparing the amount
of coverage provided by each insurance policy.
732 N.E.2d at 1187. The court held that two policies covered different risks
because the scope of coverage provided to the additional insured
under either policy was limited to liability that arose out of
the named insured's operations. In other words, the additional
insured would be afforded more coverage as the size of the named
insured's operations increased. This analysis is flawed because
the scope of coverage, or the amount of risk covered, does not
identify which precise risks are covered. And more importantly,
two different policies with different coverage scopes could
overlap and simultaneously cover the same risk. See Lenny
Szarek, Inc. v. Maryland Cas. Co., No. 1-03-3703, 2004 WL
2157684, at *6 (Ill.App.Ct. Sept. 27, 2004) (stating that
damages may be divided "based on established principles of
equitable contribution" between two insurers "with overlapping
coverage"); see also 15 Couch on Ins. 3d § 218:6 (2000). When
the named insureds are working closely together like the named insureds in the
present case the coverage provided to the additional insured
under each policy will surely overlap to some degree. The best
way to determine whether a risk was covered by various policies
is to determine whether the various insurers have a duty to
indemnify a loss that arises out of that risk, which is exactly
what the court in River City did.
The Illinois Supreme Court would also reject the Schal Bovis
analysis because it leads to inequitable results by permitting an
insurer who has a duty to indemnify to benefit from another
insurer's actions. See River City, 757 N.E.2d at 682. The
possibility of an inequitable result will also delay payments.
Insurers will either deny their duty to indemnify in the hope
that another insurer will extinguish its obligations or they will
delay fully satisfying a claim until the conclusion of all of
legal proceedings concerning other insurer's duties to indemnify.
The River City analysis, unlike the Schal Bovis analysis,
promotes prompt payments and equitable results.
Applying the River City analysis to the present case, we
conclude that Plaintiffs will be entitled to damages on the basis
of equitable contribution (if we find that National Union had a
duty to indemnify ComEd) because the various insurance policies
all covered the same risk: Vance's injury. We do not address
National Union's unjust enrichment and declaratory judgment
claims because we have already found that Plaintiffs would both
be entitled to damages on the basis of equitable contribution and
that Continental is contractually subrogated to ComEd's breach of
II. National Union's Duty to Indemnify
National Union agreed to indemnify ComEd "with respect to
liability arising out of [PSESI's] operations or premises owned
by or rented by [PSESI]." (R. 20, Def.'s Resp. ¶¶ 25, 27.) ComEd incurred $744,497.83 in liability as a result of the
Vance judgment, so the question before this Court is whether
National Union has a duty to indemnify ComEd. Under the insurance
policy, National Union has a duty to indemnify ComEd if the Vance
judgment arose out of PSESI's operations. To determine whether
National Union must indemnify ComEd, we must, therefore,
determine whether Vance's injury arose out of PSESI's operations.
The "arising out of" requirement is satisfied if ComEd's
liability originated from, has its origin in, grew out of, or
flowed from PSESI's operations.*fn6 Md. Cas. Co. v. Chi. &
N.W. Transp. Co., 466 N.E.2d 1091, 1094 (Ill.App.Ct. 1984).
The phrase "arising out of" is broad, vague, liberally construed
in favor of the insured, and satisfied by "but for" causation.
Id. "But for" causation exists when something would not have
happened but for some other prior act. For example, in Maryland
Casualty, an employee of the named insured was assaulted as she
arrived to work, and the court held that she would not have been
assaulted but for the fact that she was going to work for the
named insured. Id. In fact, every Illinois court that has found
"but for" causation in the additional insured context has done so
because the injured party was, like the injured party in
Maryland Casualty, the named insured's employee.*fn7 Because Vance was not an employee of the named insured (PSESI),
National Union asserts that, in order for ComEd's liability to
arise out of PSESI's operations, Vance's injury must have been
"uniquely facilitated" by a PSESI employee. (R. 18, Def.'s Opp'n
at 5-6, 8.) We disagree. National Union has provided no support
nor has this Court identified any for replacing "but for"
causation with a much stricter "unique facilitation"
standard.*fn8 More importantly, limiting "but for" causation
to certain situations or limiting the type of facts that could
establish "but for" causation would be inconsistent with Illinois
courts' admonition that the phrase "arising out of" should be
broadly and liberally construed in favor of the insured. See
Maryland Casualty, 466 N.E.2d at 1094. No Illinois court has
qualified this broad interpretation of "arising out of," and,
while they have held that the injured party's status as an
employee of the named insured is sufficient to establish that
liability arose out of the named insured's operations, none have held that it is a necessary condition.*fn9 The
absence of an employment relationship between the injured party
and the named insured simply forces a plaintiff to prove "but
for" causation with different facts, which is precisely what
Plaintiffs are attempting to do.
Taking all reasonable inferences in favor of National Union, we
find that Vance's injury arose out of PSESI's operations. Vance
and Fults both stated that Vance was climbing the scaffolding so
that he could identify field weld 57. (R. 18, Def.'s Opp'n, Ex.
B, Vance Trial Transcript at 62 & Ex. C, Fults Trial Transcript
at 8.) Even though National Union asserts that Vance identified
the weld before he started to climb the scaffolding, (id. at
7-8), the only evidence in the record that could possibly support
this conclusion is Vance's statement that he told Fults that
field weld 57 is "up on top of that heat exchanger up there,"
(id., Ex. C., Vance Trial Transcript at 59-60). It would be
unreasonable to infer from this statement that Vance identified
the weld from the floor of the room. Both Vance and Fults stated
that Vance was climbing the scaffolding to identify field weld 57
for Fults, and Fults stated that "a lot of the stuff we are doing
was real small, so you almost had to be real specific when you
pointed stuff out if you were doing something specific like
that." (Id., Ex. C, Fults Trial Transcript at 8.) Therefore, we
conclude as a matter of law that Vance was climbing the
scaffolding to identify field weld 57 for Fults and would not
have been injured but for Fults' inspection of field weld 57.
The record demonstrates, however, that Vance would have
inspected field weld 57 even if Fults had decided not to perform
his own inspection. (Id., Ex. B., Vance Trial Transcript at
59.) This fact does not negate "but for" causation because it would be
unreasonable to infer that Vance, in the absence of Fults'
inspection, would have climbed up to field weld 57 in exactly the
same way. Both Vance and Fults stated that Fults started climbing
up to field weld 57 first, (id., Ex. B, Vance Trial Transcript
at 60-61 & Ex. C, Fults Trial Transcript at 4), and Vance
explicitly stated that he followed Fults's path, (id., Ex. B,
Vance Trial Transcript at 61). Regardless, Vance was injured
while enabling Fults to perform a PSESI inspection, so his injury
originated from, had its origin in, grew out of, or flowed from
PSESI's operations. Maryland Casualty, 466 N.E.2d at 1094. In
short, it arose out of PSESI's operations.
Plaintiffs also assert that Vance's injury arose out of PSESI's
operations because one of PSESI's operations was "set[ting] forth
the expectations as outlined in the radiation work permit
pertaining to the installation of scaffold on the project." (R.
20, Def.'s Resp. ¶ 14.) We cannot, however, determine from the
record what expectations are outlined in the radiation work
permit, what precise role PSESI had in the erection of
scaffolding, or whether sufficient scaffolding was present in the
heat exchanger room to satisfy PSESI's obligations. For these
reasons, we cannot find as a matter of law that Vance's injury
arose out of PSESI's failure to comply with the radiation work
An insurer who believes that it has no duty to defend cannot
simply refuse to provide a defense. Employers Ins. of Wausau v.
Ehlco Liquidating Trust, 708 N.E.2d 1122, 1134-35 (Ill. 1999).
It must either defend the insured under a reservation of rights
or seek a declaratory judgment. Id. If the insurer does neither
and is subsequently found to have wrongfully refused to provide a
defense, the insurer will be estopped from raising any coverage
defenses, except when there is a serious conflict of interests. Id. at 1135, 1137.
Furthermore, the insurer must act "within a reasonable time of a
demand by the insured."*fn10 Korte Constr. Co. v. Am.
States Ins., 750 N.E.2d 764, 770 (Ill.App.Ct. 2001); see also
W. Am. Ins. Co v. J.R. Constr. Co., 777 N.E.2d 610, 620
ComEd requested a defense in January 2001, (R. 20, Def.'s Resp.
¶ 36.), and National Union agreed to defend ComEd under a
reservation of rights nineteen months later in August 2002,
(id. ¶ 39). In Korte, 750 N.E.2d at 770, the court held that
an insurer who did not act for twelve months was estopped from
asserting any coverage defenses. And in J.R. Construction,
777 N.E.2d at 620, the court held that an insurer who did not act for
twenty-one and a half months was also estopped. National Union
waited nineteen months, so we conclude that this delay was
unreasonable as a matter of law. National Union provided this
Court with no justification for waiting such a long time to agree
to defend ComEd under a reservation of rights. Instead, it
asserts it can only be estopped if ComEd was prejudiced. (R. 18,
Def.'s Opp'n at 9.) The absence of prejudice, however, is the
direct result of Plaintiffs' prompt decision to provide ComEd
with a defense. "An insurance company cannot `simply stand on the
sidelines' because another insurance company performs its own contractual duties."
J.R. Construction, 777 N.E.2d at 620 (quoting Cent. Mut. Ins.
Co. v. Kammerling, 571 N.E.2d 806, 810 (Ill.App.Ct. 1991)).
Therefore, we conclude that National Union is estopped from
raising any coverage defenses.
National Union has a duty to indemnify ComEd for the liability
that arose out of Vance's injury. It has not indemnified ComEd
and is estopped from raising any coverage defenses. Plaintiffs
have paid the entire Vance judgment and thereby extinguished
National Union's obligation to ComEd. Equity requires that
National Union contribute its pro rata share of the Vance
judgment to Plaintiffs: $247,715.80 plus statutory interest
accruing from the date Plaintiffs paid the Vance judgment.
Continental is also entitled to these damages because it is
contractually subrogated to ComEd's breach of contract claim.
Accordingly, we grant Plaintiffs' motion for summary judgment,
(R. 14-2), and deny National Union's motion for summary judgment,
(R. 19-1). We also deny Plaintiffs' motion for judgment on the
pleadings as moot. (R. 14-1.) Plaintiffs should promptly file a
motion for the reasonable attorneys' fees and costs that they are
entitled to under Illinois law. The Clerk of the Court is
instructed, pursuant to Federal Rule of Civil Procedure 58, to
enter judgment in favor of Plaintiffs Continental and EIC and
against Defendant National Union.