Opinion
04 C 2786.
December 14, 2004
ORDER
Plaintiffs Electric Insurance Company and Continental Casualty Company and Defendant National Union Fire Insurance Company of Pittsburgh both filed, under Federal Rule of Civil Procedure 59(e), motions to alter or amend the judgment entered on November 22, 2004. To enter that judgment, we had to predict how the Illinois Supreme Court would resolve a split of authority among the Illinois Appellate Courts. The Illinois Supreme Court, less then two weeks later, resolved this split of authority and rendered our prediction erroneous. See Home Insurance Company v. Cincinnati Insurance Company, No. 97873, 2004 WL 2749854 (Ill. Dec. 4, 2004). To conform our opinion to Illinois law, we must amend our judgment as described below.
In our November 22, 2004 opinion, we held that Plaintiffs are entitled to equitable contribution because the three insurance policies covered the same risk: the risk that ComEd would incur liability as a result of a specific injury. (R. 27, November 22, 2004 Opinion at 9-11.) The Illinois Supreme Court, however, held that the relevant question was whether the multiple policies "set out to cover the same risk." Home Insurance, 2004 WL 2749854, at *8. The Illinois Supreme Court broadly defined risk as the total scope of coverage or the total amount of risk covered by a policy. Id. Using this definition, the three insurance policies at issue in our case did not cover the same risk because ComEd, as the additional insured, was only insured for liability arising out of the named insured's operations. National Union requests that we vacate the entire judgment, but Plaintiff Continental Casualty Company is still entitled to a judgment as a matter of law as it is contractually subrogated to ComEd's breach of contract claim. Thus, we only vacate Section IB of our opinion and hold that Plaintiffs are not entitled to equitable contribution.
Plaintiffs request that we reconsider our ruling that Electric Insurance Company, as the reinusurer, is not contractually subrogated to ComEd's breach of contract claim and that we issue a ruling on their unjust enrichment claim. The relationship between the reinsurance contract and the contractual subrogation was not fully briefed in the parties' summary judgment motions, so we find that reconsideration of this issue is justified. So that we may properly reconsider our contractual subrogation holding and rule on Plaintiffs' unjust enrichment claim, we request further briefing on those two issues. Plaintiffs' opening brief is due on January 11, 2005, Defendant's response brief is due on January 25, 2005, and Plaintiffs' reply brief is due on February 8, 2005. Plaintiffs also requested that, under Federal Rule of Civil Procedure 15, we amend their Complaint to add National Union and ComEd as additional plaintiffs. We deny this request. Thus, the parties' motions to amend the judgment are partially granted and partially denied.
The parties are strongly encouraged to resume settlement discussions in light of our November 22, 2004 opinion and this minute order.