                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




              Illinois Insurance Guaranty Fund v. Liberty Mutual Insurance Co.,
                                  2013 IL App (1st) 123345




Appellate Court            ILLINOIS INSURANCE GUARANTY FUND, Plaintiff-Appellant, v.
Caption                    LIBERTY MUTUAL INSURANCE COMPANY, Defendant, and
                           ZURICH AMERICAN INSURANCE COMPANY, and INTERLAKE
                           MATERIAL HANDLING, Defendants-Appellees.



District & No.             First District, Second Division
                           Docket No. 1-12-3345


Filed                      November 12, 2013


Held                       In an action arising from the workers’ compensation benefits received by
(Note: This syllabus       a loaned employee after the lending employer’s workers’ compensation
constitutes no part of     insurer was liquidated, the trial court properly dismissed the action filed
the opinion of the court   by the Illinois Insurance Guaranty Fund seeking reimbursement from the
but has been prepared      borrowing employer’s workers’ compensation insurer for the benefits the
by the Reporter of         Fund paid to the injured worker after the liquidation, since the liquidated
Decisions for the          insurer had no rights against the borrowing employer’s insurer that could
convenience of the         have been passed to the Fund; furthermore, due to the passage of time,
reader.)
                           any action the liquidated insurer could have had against the borrowing
                           employer’s insurer would have expired.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-L-6510; the Hon.
Review                     Michael B. Hyman, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Locke Lord, LLP (Rowe W. Snider and Margaret M. Schuchardt, of
Appeal                     counsel), and Stone & Johnson, Chtrd. (J. Murray Pinkston III, of
                           counsel), both of Chicago, for appellant.

                           Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, of Chicago (Brian
                           A. O’Gallagher and Brandt W. Allen, of counsel), for appellees.


Panel                      PRESIDING JUSTICE QUINN delivered the judgment of the court, with
                           opinion.
                           Justices Harris and Pierce concurred in the judgment and opinion.




                                             OPINION

¶1                                        I. INTRODUCTION
¶2          The circuit court correctly ruled in favor of the borrowing employer’s insurance company
        on its motion to dismiss for failure to state a claim in an action brought by the Illinois
        Insurance Guaranty Fund (IIGF) seeking reimbursement from the borrowing insurance
        company for workers’ compensation benefits IIGF paid to an injured worker after the
        insurance company for the lending employer that was obligated to make payments was
        liquidated. The additional defense of the expiration of the statute of limitations, as well as
        other defenses raised by the borrowing employer’s insurance company, were also valid bases
        for dismissal.

¶3                                        II. BACKGROUND
¶4           Plaintiff, IIGF, was statutorily created in 1971 to provide protection for certain claims
        of policyholders under certain insurance policies issued by IIGF member companies that
        become insolvent. 215 ILCS 5/532 et seq. (West 2010). Skokie Castings, Inc. v. Illinois
        Insurance Guaranty Fund, 2013 IL 113873, ¶ 1. This action concerns IIGF’s efforts to
        attempt to be reimbursed for workers’ compensation payments from a company that
        borrowed an employee after the insurance company for the employee’s lending employer
        became insolvent.
¶5           IIGF’s second amended complaint alleges John Earley (Earley) was hired by TGI Group
        on December 2, 2000. It further alleges that on December 19, 2000, Earley was performing
        work as a borrowed employee for Interlake Material Handling (Interlake) pursuant to a
        written contract between TGI Group and Interlake, although IIGF did not have any contract
        in its possession between TGI Group and Interlake. On that day, Earley was involved in a
        workplace accident which resulted in a workers’ compensation claim. Earley’s employer,

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     TGI Group, had a workers’ compensation policy issued by Legion Insurance Company
     (Legion). Legion made certain workers’ compensation payments to Earley on behalf of
     Earley’s employer, TGI Group, until Legion’s date of liquidation on July 28, 2003. IIGF
     stepped in and began paying Earley his workers’ compensation benefits and continues to pay
     Earley to the present time.
¶6       On July 17, 2008, almost five years after it took over Earley’s payments, IIGF filed its
     original complaint, which was amended on February 9, 2009. Almost three years after that,
     on January 19, 2012, IIGF filed a second amended complaint, which is the subject of this
     appeal. No allegations were made against the named defendant, Liberty Mutual Insurance
     Company, in the second amended complaint although IIGF named it in the caption. The
     second amended complaint sought reimbursement from defendants Zurich American
     Insurance Company (Zurich) and Interlake under a workers’ compensation policy Zurich
     issued to Interlake, Earley’s alleged borrowing employer on the date of the accident.
     Specifically, IIGF sought reimbursement for all workers’ compensation payments IIGF had
     made to Earley, reimbursement for IIGF’s defense in Earley’s workers’ compensation claim,
     and a judgment that Zurich is responsible for all workers’ compensation benefits payable to
     Earley in connection with the injuries Earley sustained on December 19, 2000.
¶7       IIGF further alleged in the second amended complaint that both Earley’s presumed
     lending employer, TGI Group, and his borrowing employer, Interlake, are jointly and
     severally liable for Earley’s workers’ compensation benefits. It further alleged that the Zurich
     policy issued to Interlake is “other insurance” as that term is defined under the Illinois
     Insurance Code (215 ILCS 5/546(a) (West 2010)) and is, therefore, primary coverage that
     must be exhausted before IIGF becomes responsible to Earley for any payments.
¶8       Zurich filed a combined motion to dismiss under sections 2-615 and 2-619 of the Code
     of Civil Procedure. 735 ILCS 5/2-615, 2-619 (West 2012). Zurich’s motion to dismiss
     pursuant to section 2-615 asserted that IIGF’s second amended complaint was replete with
     conclusory statements rather than allegations of fact. Specifically, Zurich cites to (1) IIGF’s
     failure to adequately allege the identity of Earley’s employer, (2) IIGF’s failure to adequately
     allege a borrowing employer relationship, (3) IIGF’s failure to cite any statutory basis for the
     relief it seeks, and (4) IIGF’s failure to even mention the word “subrogation” or any
     subrogation rights it might have or its basis to maintain such a claim. The basis for Zurich’s
     section 2-619 motion to dismiss was that IIGF’s second amended complaint was untimely
     as against Zurich because Zurich was not added as a defendant until the filing of IIGF’s first
     amended complaint of February 9, 2009, more than six years after any claim accrued.
¶9       On June 1, 2012, the circuit court ruled that IIGF did not plead a subrogation claim in its
     second amended complaint. The circuit court further noted that IIGF’s brief in opposition to
     dismissal made clear that IIGF’s request for reimbursement is a claim for subrogation and
     the second amended complaint failed to plead facts to support the elements of such a claim.
     The court further noted that IIGF did not argue in its response to Zurich’s motion to dismiss
     that it could assert facts to support a subrogation claim if it was given leave to amend its
     complaint yet a third time. Therefore, it dismissed the second amended complaint with
     prejudice. The circuit court ruled that other arguments made by Zurich in its motion to
     dismiss were moot because the second amended complaint was dismissed for failure to state

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       a claim. On July 2, 2012, IIGF filed a motion for reconsideration.
¶ 10       On October 11, 2012, the circuit court ruled on IIGF’s timely filed and fully briefed
       motion for reconsideration. It stated that IIGF violated the purpose of a motion for
       reconsideration, which is to apprise the court of newly discovered evidence or a change in
       the law or errors in the court’s earlier application of the law. Because IIGF’s motion for
       reconsideration accomplished none of these purposes, the circuit court denied IIGF’s motion.
¶ 11       IIGF filed a timely notice of appeal from the circuit court’s adverse decision on
       November 9, 2012. Ill. S. Ct. R. 303(a) (eff. June 4, 2008).

¶ 12                                III. STANDARD OF REVIEW
¶ 13        The appellant, IIGF, did not submit a standard of review in its appellate brief as is
       required by the rules. Rule 341(h)(3) states that “[t]he appellant must include a concise
       statement of the applicable standard of review for each issue, with citation to authority.”
       (Emphasis added.) Ill. S. Ct. R. 341(h)(3) (eff. Feb. 6, 2013). The defendant-appellee, Zurich,
       submits that this case should be reviewed de novo, but failed to cite any cases in support of
       its submission.
¶ 14        We note that the question presented by a section 2-615 motion to dismiss is whether the
       allegations of the complaint, when viewed in the light most favorable to the plaintiff, are
       sufficient to state a cause of action upon which relief can be granted. Hough v. Kalousek, 279
       Ill. App. 3d 855, 862 (1996). Illinois is a fact-pleading jurisdiction that requires a plaintiff
       to file both a legally and factually sufficient complaint. Id. at 863. When ruling on a section
       2-615 motion to dismiss, the circuit court must admit all well-pleaded facts as true and
       disregard any legal and factual conclusions that are unsupported by allegations of fact. Lake
       County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill.
       App. 3d 452, 456-57 (1995). The standard of review on a section 2-615 dismissal is de novo.
       T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083-84 (1994).
¶ 15        Additionally, Zurich’s motion to dismiss was brought pursuant to section 2-619. 735
       ILCS 5/2-619 (West 2012). All well-pleaded facts and reasonable inferences are accepted as
       true by the circuit court when ruling on a section 2-619 motion to dismiss. In re Marriage
       of Sullivan, 342 Ill. App. 3d 560, 562 (2003). Conclusions of law are not accepted as true.
       Id. at 563. “A reviewing court should conduct an independent review of the propriety of
       dismissing the complaint and is not required to defer to the trial court’s reasoning.” Id. The
       standard of review for a dismissal based on section 2-619 motion is also de novo. In re
       Marriage of Morreale, 351 Ill. App. 3d 238, 240 (2004). Therefore, this court will look at
       this entire case de novo.
¶ 16        We also note that this court can affirm the circuit court’s dismissal on any grounds
       supplied by the record and applicable case law, regardless of the circuit court’s reasons.
       Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 10.

¶ 17                                 IV. ANALYSIS
¶ 18      “Subrogation has been defined as the substitution of another *** in the place of a


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       claimant whose rights [it] succeeds to in relation to the debt or claim asserted, which [it] has
       paid involuntarily.” Wausau Insurance Co. v. All Chicagoland Moving & Storage Co., 333
       Ill. App. 3d 1116, 1121 (2002). The purpose of a subrogation claim is traditionally grounded
       in equity to work out an adjustment between the parties “by securing the ultimate discharge
       of a debt by the person who in equity and good conscience ought to pay it.” 16 Lee R. Russ
       & Thomas F. Segalia, Couch on Insurance § 222:8 (3d ed. 1997).
¶ 19        In this case, to establish a valid cause of action of equitable subrogation, IIGF must allege
       the following: (1) that the named defendant insurer, Zurich, is primarily liable to the insured
       for the injured worker’s loss under its workers’ compensation policy; (2) that IIGF, through
       an assignment from Legion, is secondarily liable to the injured employee for the same loss
       under Legion’s policy; and (3) that IIGF discharged its liability to the insured and, in doing
       so, extinguished the liability of Zurich. Home Insurance Co. v. Cincinnati Insurance Co.,
       213 Ill. 2d 307, 316-17 (2004).
¶ 20        Our supreme court has held that an insured, such as Legion, by its conduct may waive
       rights against another insurer, such as Zurich. Id. at 327. It explained that an insurer, such as
       Legion, desiring to reserve any rights it may have against a second insurer must make this
       position clear in its correspondence with the insurance company it may believe to be another
       insurer. Id. There are no allegations in IIGF’s second amended complaint that Legion
       believed that Zurich or Interlake was in any way responsible to TGI Group or Legion for its
       employee’s injuries. There are no allegations in the complaint that Legion believed it had any
       valid claim against either Zurich or Interlake to seek a full reimbursement for the amounts
       it paid out under its workers’ compensation insurance policy it had with TGI Group. Our
       supreme court has held that any insurer, like Legion, is “presumed to know the contents of
       its own policy” and whether any other insurance company must assume or share in the
       liability. Id.
¶ 21        IIGF is statutorily obligated to provide workers’ compensation coverage for the injured
       employee in the event Legion became insolvent, which it did. Illinois Insurance Guaranty
       Fund v. Virginia Surety Co., 2012 IL App (1st) 113758, ¶ 4; see generally Skokie Castings,
       Inc. v. Illinois Insurance Guaranty Fund, 2013 IL 113873. IIGF argues it can relieve its
       obligation by pursuing another insurance company that provided workers’ compensation
       coverage to the injured employee’s borrowing employer, regardless of passage of time and
       lack of actions by the primary insurer, Legion, at the time liability was established.
¶ 22        Aside from a legal conclusion alleged by IIGF in its second amended complaint that both
       Legion and Zurich are jointly and severally liable to the injured employee, there are no
       factual allegations in IIGF’s second amended complaint that satisfy the first element of a
       subrogation claim–that the defendant Zurich is legally responsible to compensate the injured
       employee for his injuries. More importantly, there are no factual allegations that Zurich is
       primarily liable for the loss rather than Legion, the insurance company which was paying on
       the claim prior to its insolvency. In order for IIGF to have a valid, timely cause of action
       sounding in subrogation, Legion must have had an existing cause of action against Zurich
       that Legion could have asserted for its own benefit had IIGF not compensated the injured
       employee for his loss by continuing to pay his workers’ compensation benefits. There are no
       factual or legally sound allegations in IIGF’s second amended complaint that describe the

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       situation where IIGF fulfilled an existing legal obligation that Zurich had to pay the workers’
       compensation benefits to the injured employee and, as a result, has a right to reimbursement
       from Zurich. In fact, IIGF made the conclusory allegation that it was under a statutory
       compulsion to continue workers’ compensation payments to the injured employee for the
       insolvent insurance company Legion, not to fulfill any legal obligations on behalf of Zurich.
       Without such factual and legal allegations in IIGF’s complaint, IIGF fails to state a claim and
       cannot proceed against Zurich as subrogee of Legion.
¶ 23        IIGF argues that by taking over Legion’s obligation to pay the injured employee’s
       workers’ compensation benefits, it was automatically assigned any rights Legion had to
       pursue the amounts IIGF paid directly from Zurich. It argues that any other insurance policy
       in existence at the time of the injury is fair game as Zurich’s equitable position is inferior to
       that of IIGF. The relevant question here is whether Legion had any existing, assignable
       causes of action against Zurich on the date IIGF filed its complaint naming Zurich. Given the
       facts of this case, we hold that Legion had no assignable rights against Zurich it could have
       passed onto IIGF when it became insolvent. Given the passage of time, any applicable statute
       of limitations for any cause of action, equitable or legal, that Legion could have possibly had
       against Zurich has expired. The employee was injured on December 18, 2000, then IIGF took
       over payments on July 28, 2003, but IIGF did not file suit against Zurich until February 9,
       2009.
¶ 24        IIGF argues that the statutory framework created by both the Insurance Code (215 ILCS
       5/532 et seq. (West 2010)) and the Workers’ Compensation Act (820 ILCS 305/1 et seq.
       (West 2010)) requires that when a workers’ compensation carrier for a lending employer that
       is paying for an injury for its employee becomes insolvent, the workers’ compensation carrier
       for the employer that borrowed the employee on the date the employee was injured must
       begin paying the workers’ compensation benefits to the lending employer’s injured employee
       before IIGF is required to pay. In presenting this argument in its opening brief, IIGF ignores
       this court’s ruling in Illinois Insurance Guaranty Fund v. Virginia Surety Co., 2012 IL App
       (1st) 113758, which held that when a lending employer maintains workers’ compensation
       insurance for its employees and the workers’ compensation carrier becomes insolvent, IIGF
       cannot compel the borrowing employer’s insurance carrier to pay the lending employee’s
       benefits. Id. ¶ 22.
¶ 25        Aside from failing to distinguish the instant case from the Virginia Surety holding, supra,
       IIGF’s theory that it is entitled to reimbursement fails to focus on the most basic issue of who
       is really the insured for both Legion and Zurich and how the relationship, if any exits at all,
       between the two insurance carriers and how IIGF’s subrogation claim for reimbursement
       depends on IIGF’s ability to establish that Zurich is a primary insurer. IIGF’s second
       amended complaint contains unsupported assertions regarding to whom Legion owed
       coverage, none of which include Zurich’s insured, Interlake. There is no allegation that
       Zurich contracted with Legion’s client. In fact, Legion’s client was never definitively
       identified by IIGF.
¶ 26        Generally, when an action is brought for reimbursement, it involves an insurance carrier
       claiming to be an excess insurer who is suing a primary insurer. In that circumstance, both
       the excess carrier and primary carrier must have contracted with the same insured. See

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       Thomas M. Hamilton & Troy A. Stark, Excess-Primary Insurer Obligations and the Rights
       of the Insured, 69 Def. Couns. J. 315 (2002) (“[i]n a typical excess-primary relationship, both
       the excess and primary carrier[s] contract independently with the policyholder to perform the
       obligations of their insuring agreements”). In the instant case, IIGF is attempting an action
       for reimbursement brought on behalf of the now-insolvent Legion insurance company against
       another insurance company, Zurich, but the policies cover different insureds. Such a claim
       cannot be based on the doctrine of reimbursement (the only recovery request IIGF makes in
       its second amended complaint) between excess and primary insurers. Instead, such an action
       would require IIGF to allege a right of indemnity based on the doctrine of respondeat
       superior or based on the right of joint tortfeasors to recover from each other. Bituminous
       Casualty Corp. v. American Fidelity & Casualty Co., 22 Ill. App. 2d 26, 32 (1959); 15 Lee
       R. Russ & Thomas F. Segalia, Couch on Insurance § 217:16 (3d ed. 1997) (an action may
       be brought by an insurer who was compelled to pay a claim on behalf of its insured even
       though its insured bore only vicarious liability); Russ & Segalia, supra § 217:4 (there may
       be a right to contribution where an insurer of a joint tortfeasor has paid more than its fair
       share of the loss).
¶ 27        It is not disputed that Zurich’s policy covered only Interlake, and not TGI Group or
       anyone else Legion may have insured for workers’ compensation claims. Therefore, Legion’s
       policy with its insured (TGI Group) cannot form the basis of a cause of action for
       reimbursement against Zurich’s insured party. At the time of the employee’s injury, there is
       no allegation that the insurance companies contested that Legion’s insured was legally
       responsible for the employee’s injuries and, therefore, covered by Legion’s policy alone.
¶ 28        If Legion’s policy were a true excess insurance policy, it would explicitly require the
       existence of a primary policy as a condition of coverage. 15 Lee R. Russ & Thomas F.
       Segalia, Couch on Insurance § 220:2 (3d ed. 1997). IIGF does not allege that Legion is an
       excess insurance carrier as it fails to allege that Legion’s policy had any such condition.
       Instead, IIGF appears to assert that it has a status as an excess insurer, regardless of what
       status it inherited from Legion, based upon the “other insurance” clause contained in its
       enabling statute which outlines IIGF’s obligation when two or more insurance policies are
       available. The portion of the statute IIGF relies on for its argument states as follows:
            “An insured or claimant shall be required first to exhaust all coverage provided by any
            other insurance policy, *** if the claim under such other policy arises from the same
            facts, injury, or loss that gave rise to the covered claim against the Fund. The Fund’s
            obligation *** shall be reduced by the amount recovered or recoverable, whichever is
            greater, under such other insurance policy.” 215 ILCS 5/546(a) (West 2010).
       This clause does not establish IIGF’s status as excess over all other insurers and does not
       support IIGF’s argument that the statute converts Zurich’s insurance as primary over IIGF’s
       funds. Illinois Insurance Guaranty Fund v. Virginia Surety Co., 2012 IL App (1st) 113758;
       Douglas R. Richmond, Rights and Responsibilities of Excess Insurers, 78 Denv. U. L. Rev.
       29, 103 (2000). There is no allegation that Zurich was a primary insurance carrier in the facts
       of this case. The language in IIGF’s enabling statute cannot alter the terms of Zurich’s
       insurance policy by inserting a new insured and converting the policy into a primary one for
       that new insured.

                                                -7-
¶ 29        Another issue raised by IIGF is that IIGF now has Legion’s right to recover from its co-
       obligor, Zurich, which shares the same liability under a theory of equitable contribution.
       Fireman’s Fund Insurance Co. v. Maryland Casualty Co., 77 Cal. Rptr. 2d 296, 303 (Cal.
       Ct. App. 1998). However, this is not a case where multiple insurance carriers insured the
       same insured and covered the same risk. It is only in that situation where an insurance
       company has standing to allege a cause of action for equitable contribution against what is,
       by definition, its co-insurers for equitable contribution because it has indemnified them by
       undertaking the defense or paying on the claim. Id. A fair reading of IIGF’s second amended
       complaint does not encompass the doctrine of equitable contribution.
¶ 30        Finally, as a matter of policy, the recognition of IIGF’s theory of recovery would
       undermine current established insurance law, which governs both equitable subrogation and
       workers’ compensation law as it applies to a lending employer/borrowing employer
       relationship. If IIGF were able to recover from Zurich under the “other insurance” clause of
       its enabling statute, then all the existing laws regarding how workers’ compensation laws
       apply to these employers would be circumvented, and IIGF would be able to obtain
       reimbursement from an insurance company for monies IIGF paid out to an injured employee
       without the required statements by the insolvent insurer, Legion, that it had a good-faith
       belief that Zurich had a duty and obligation to share in the coverage. Because IIGF failed to
       allege Legion’s compliance with its obligation to fulfill a condition precedent of properly
       asserting a claim with Zurich, it has failed to state a claim for relief . In other words, IIGF’s
       argument that Zurich is “other insurance” that it can recover from must fail because Legion
       did not comply with any conditions precedent to triggering coverage, including notifying
       Zurich it believed it should provide primary coverage or share in coverage. 15 Lee R. Russ
       & Thomas F. Segalia, Couch on Insurance § 219:9 (3d ed. 1997) (a policy that never comes
       into effect because certain preconditions are never met is not valid and collectible “other
       insurance”). A basic precondition, at a minimum, would be to file a lawsuit before the statute
       of limitations expires. Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d 317, 324-
       329 (1998). IIGF makes no such claim of notice to Zurich of a claim against it within the
       statute of limitations. This additional omission by IIGF is further support of the circuit
       court’s dismissal of IIGF’s second amended complaint for failure to state a claim.
¶ 31        IIGF never uses the word “subrogation” in its second amended complaint, nor does it
       identify the parties as subrogee and subrogor. IIGF’s argument is that although its second
       amended complaint does not specifically identify the claim with the word “subrogation,” it
       argues that it contains the elements of such a claim. This court disagrees and holds, for all
       the foregoing reasons, that IIGF’s second amended complaint fails to allege the elements
       necessary for a subrogation claim. Therefore, IIGF cannot proceed against Zurich as the
       subrogee of the primary insurance company covering the workers’ compensation claim,
       Legion, which became insolvent.

¶ 32                                     V. CONCLUSION
¶ 33       For all the foregoing reasons, this court affirms the circuit court order that IIGF’s claim
       be dismissed for failure to state a claim. This court also finds that any applicable statute of


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       limitations expired and Zurich’s policy is not “other insurance” available to IIGF to pursue
       for reimbursement.

¶ 34      Affirmed.




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