Find Legal Information

FOURTH DIVISION

September 27, 2001

The Chicago Hospital Risk Pooling Program (CHRPP) brought anaction against defendant, the Illinois State Medical Inter-InsuranceExchange (ISMIE), under theories of equitable contribution, unjustenrichment, and quantum meruit to recover one-half of a settlementpayment it made on behalf of a physician covered by both CHRPP andISMIE. ISMIE filed an affirmative defense, alleging, inter alia, thatCHRPP's contribution claim was barred by the physician's selectivetender of his claim to CHRPP. The trial court rejected ISMIE'sargument, holding that the selective tender rule applied only totraditional insurance companies and did not apply to a self-insuredrisk-pooling trust. Thereafter, ISMIE filed a motion to dismiss thecomplaint pursuant to section 2-615 of the Illinois Code of CivilProcedure (the Code) (735 ILCS 5/2-615 (West 1998)), alleging that asa risk-pooling trust CHRPP lacked the necessary elements to state acause of action for equitable contribution. The trial court deniedISMIE's motion but certified the following questions of law for reviewunder Illinois Supreme Court Rule 308 for interlocutory appeal. 155Ill. 2d R. 308.

"1. Whether the 'selective tender' rule ofInstitute of London Underwriters v. HartfordFire Ins. Co., 234 Ill. App. 3d 70, 599 N.E.2d1311 (1st Dist. 1992), and its progeny can beapplied to the Plaintiff in this case,[CHRPP], which is a self-insurance retentiontrust established under the Illinois Religiousand Charitable Risk Pooling Trust Act; and

2. Whether [CHRPP], a self-insurance retentiontrust established pursuant to the IllinoisReligious And Charitable Risk Pooling TrustAct, may state a cause of action for equitablecontribution, unjust enrichment, or quantummeruit against [ISMIE], an insurance company,to recover one-half of a settlement paymentthat [CHRPP] made on behalf of a physiciancovered by [ISMIE] and [CHRPP]."

We answer the certified questions as follows and remand for furtherproceedings consistent with this opinion.

BACKGROUND

In September 1993, Luz Rivera filed a medical malpractice actionagainst Norwegian-American Hospital, Dr. Ha Nguyen, Dr. CarlosBaldoceda, and her private obstetrician, alleging that they werenegligent in delivering her twin sons, causing the death of one andthe brain damage of the other. Dr. Baldoceda was insured under aprofessional liability policy issued by ISMIE. He was also coveredunder CHRPP as an employed physician of the hospital. CHRPPadministers a trust established pursuant to the Religious andCharitable Risk Pooling Trust Act (the Risk Pooling Act or Act) (215ILCS 150/1 et seq. (West 1998)), whereby participating nonprofithospitals pool certain risks associated with the care and treatmentprovided to their patients. Under the CHRPP trust agreement (theTrust Agreement), participating hospitals are required to contributecertain sums to CHRPP in consideration of CHRPP's promise to payjudgments or settlements in response to medical malpractice suitsagainst the participating hospital or other "Covered Persons," whichinclude hospital employees while acting within the scope of theiremployment.

ISMIE agreed to defend Dr. Baldoceda with respect to the Riveraaction. CHRPP declined Dr. Baldoceda's request for a defense under areservation of rights and claimed that ISMIE had the primaryobligation to defend and indemnify him with respect to liabilityarising out of the Rivera action. However, despite refusing Dr.Baldoceda's tender of the claim, CHRPP settled the Rivera action for$3 million. The settlement reflected that $1 million was paid onbehalf of Dr. Baldoceda. ISMIE did not participate in settlementnegotiations.

Thereafter, CHRPP sought half of the settlement costs from ISMIEunder theories of equitable contribution, unjust enrichment, andquantum meruit based on the court's holding in Padilla v. Norwegian-American Hospital, Inc., 266 Ill. App. 3d 829, 641 N.E.2d 572 (1994). Therein, the court found that, where ISMIE and CHRPP had coincidentalcoverage obligations to the same physician and where their "otherinsurance" clauses were deemed incompatible, the liability for ajudgment or settlement was owed equally.⁽¹⁾ The "other insurance"clauses construed in Padilla are identical to those at issue in thiscase.

ISMIE set forth its affirmative defenses to the complaint,including that the action for equitable contribution was defeated bythe "selective tender" rule as expressed in Institute of London Underwriters v. Hartford Fire Insurance Co., 234 Ill. App. 3d70, 599 N.E.2d 1311 (1992), and its progeny. Under the rule, wheretwo policies potentially apply to the same loss, the insured maychoose to forego coverage under one policy, thereby foreclosing thetargeted insurer from obtaining contribution from the nontargeted insurer. ISMIE alleged that, pursuant to the holding in Institute,Dr. Baldoceda exercised his right to tender the defense and indemnityobligation for the Rivera action to CHRPP under the Trust Agreement,and elected not to trigger the defense and indemnity obligations ofISMIE. Accordingly, it alleged that CHRPP could not obtaincontribution from ISMIE for its settlement of the Rivera action. Inaddition, ISMIE filed a counterclaim seeking to recoup the costs itincurred in defending Dr. Baldoceda.

CHRPP responded that ISMIE could not rely on the "selectivetender" rule because the rule only applied to traditional insurancecompanies and that CHRPP was not an insurance company but, rather, atrust. CHRPP claimed that applying the rule to the trust wouldviolate the purpose of the Risk Pooling Act, to minimize the amount ofmoney nonprofit hospitals spend on protecting themselves from therisks of financial loss due to their liabilities (215 ILCS 150/2 (West1998)), and would undermine its function to provide a public healthbenefit. CHRPP also argued that the "selective tender" rule could notapply to it because the rule presumes a duty to defend and its TrustAgreement does not obligate it to defend Dr. Baldoceda. Lastly, CHRPPargued that Dr. Baldoceda did not "unequivocally" renounce hiscoverage under his ISMIE policy in order to exclusively trigger thecoverage obligations of CHRPP.

The trial court found that the "selective tender" rule was notapplicable to a trust established under the Risk Pooling Act. Thecourt examined the language of the Act which states that trusts formedpursuant to the Act are not to be considered insurance companies or tobe in the business of insurance nor are they to be subject toregulation under the Illinois Insurance Code except as specificallyprovided. 215 ILCS 150/25 (West 1998). Based upon the plain languageof the Act, the court concluded that CHRPP was not intended to betreated as insurance and strictly construed the selective tender ruleas only applying to traditionally constituted insurance companies. The court held that to hold otherwise would "undermine the legislativeintent that the trusts *** operate for the benefit of theparticipating hospitals and would be contrary to the public policy ofthe [S]tate of Illinois, as enunciated in the Act, that a trust suchas CHRPP should not be considered an insurance company or in thebusiness of insurance."

Thereafter, ISMIE filed a motion to dismiss the complaint,arguing, in part, that the reasons underlying the court's refusal totreat CHRPP as an insurance company for purposes of the "selectivetender" rule also dictated that CHRPP could not seek equitablecontribution. Specifically, ISMIE argued that the remedy of equitablecontribution is available only to insurers that insure on the samebasis and that there must be identity between the policies as toparties, insurable interests and risks. Since CHRPP, not being aninsurance company, lacked the identity of insurable interestsnecessary to obtain such a remedy, it could not maintain its cause ofaction. The trial court denied ISMIE's motion, finding that CHRPP wasentitled to the equitable remedies it sought from ISMIE.

Subsequently, the trial court granted a joint motion forinterlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R.308), finding that the rulings involved questions of first impressionunder Illinois law and a substantial ground for difference of opinion.

ANALYSIS

Before answering the certified questions, we review some generalprinciples of insurance law necessary to an understanding of thiscase. Ordinarily, where an insured has concurrent coverage for thesame liability, both of its insurers are obligated to provide coverageunder the terms of their respective policies and their coverageobligations are then coordinated, typically by reference to thepolicies' "other insurance" provisions. These clauses take manyforms, but generally provide that, where there is other insuranceavailable to cover the claim, the loss will be apportioned accordingto various formulas in order to limit each insurer's potentialobligation to the insured. See, e.g., Padilla, 266 Ill. App. 3d 829,641 N.E.2d 572.

However, "other insurance" clauses only affect insurers' rightsamong themselves; they do not affect the insured's right to recoveryunder each concurrent policy (Zurich Insurance Co. v. RaymarkIndustries, Inc, 145 Ill. App. 3d 175, 199, 494 N.E.2d 634, 650(1986)), nor do they affect the insured's right to selectively tendera claim to one insurer alone. Under the "selective tender" rule, aninsured has the paramount right to choose or knowingly forgo aninsurer's participation in a claim. John Burns Construction Co. v.Indiana Insurance Co., 189 Ill. 2d 570, 727 N.E.2d 211 (2000).

In Burns, a construction company hired a subcontractor to pave aparking lot. The subcontract agreement required the subcontractor toname the construction company as an additional insured on its policyin addition to the construction company's own insurance coverage. After the paving was completed, a commuter was injured in the parkinglot and sued the construction company. The company notified thesubcontractor of the lawsuit and requested that its insurer defend andindemnify it. The subcontractor's insurer rejected the tender of theclaim and later sought a declaration that both insurance policies wereobligated to contribute equally to the claim based on the policies'"other insurance" clauses, notwithstanding the insured's election ofcoverage. Burns, 189 Ill. 2d at 571-72, 727 N.E.2d at 213-14.

The supreme court held that an insured has the exclusive right todetermine whether to trigger coverage under an available policy byallowing the insured to make a "selective tender" of its claim to oneof several potential insurers, irrespective of the presence of an"other insurance" clause. The targeted insurer has the soleresponsibility to defend and indemnify the insured, therebyforeclosing a claim for equitable contribution from the excludedinsurer. Burns, 189 Ill. 2d at 578, 727 N.E.2d at 217. An insurerdoes not have the right to trigger the insured's coverage underanother policy in contravention of his wishes. Otherwise, the policybecomes, in effect, a third-party beneficiary contract entered into bythe insured for the direct benefit of other insurers. BituminousCasualty Corp. v. Royal Insurance Co. of America, 301 Ill. App. 3d720, 726, 704 N.E.2d 74, 79 (1998). See also Cincinnati Cos. v. WestAmerican Insurance Co., 183 Ill. 2d 317, 701 N.E.2d 499 (1998);Richard Marker Associates v. Pekin Insurance Co., 318 Ill. App. 3d1137, 743 N.E.2d 1078 (2001); Alcan United, Inc. v. West Bend MutualInsurance Co., 303 Ill. App. 3d 72, 707 N.E.2d 687 (1999).

Does Selective Tender Apply to CHRPP?

With these principles in mind, we turn to an analysis of thequestions before us. The scope of our review pursuant to SupremeCourt Rule 308 (155 Ill. 2d R. 308) is strictly limited to thequestions certified by the trial court. Klak v. Skellion, 317 Ill.App. 3d 1092, 1094, 741 N.E.2d 288, 290 (2000). In the firstcertified question, we are asked to decide whether the nature of thisparticular risk-pooling trust requires that it be treated differentlythan a traditional insurance company for purposes of applying the"selective tender" rule. As stated previously, unlike a traditionalinsurer, CHRPP administers a trust established pursuant to the RiskPooling Act whereby participating nonprofit hospitals pool certainrisks associated with the care and treatment provided to theirpatients. As part of a broad category of "self-insurance," this typeof program has been described in many jurisdictions as both the"antithesis" of insurance and the "functional equivalent" toinsurance, depending upon the nature of the analysis and theparticular facts and circumstances of each case. Compare, e.g., State v. Continental Casualty Co., 126 Idaho 178, 183, 879 P.2d 1111,1116 (1994) (because self-insurance does not involve a transfer of therisk of loss, it is not insurance), with Ohio Government RiskManagement Plan v. County Risk Sharing Authority, Inc., 130 Ohio App.3d 174, 180, 719 N.E.2d 992, 996 (1998) (structure of risk-sharingauthority analogous to insurance); Hillegass v. Landwehr, 176 Wis. 2d76, 81-82, 499 N.W.2d 652, 654-55 (1993) (self-insurance is a form ofinsurance).

In the past, CHRPP and ISMIE have looked to their respective"other insurance" clauses to apportion liability between themselves asthey did in Padilla. However, in the present case, ISMIE alleges thatDr. Baldoceda selectively tendered his claim to CHRPP, therebyforeclosing CHRPP from seeking equitable contribution. CHRPP arguesin response that the rule has only been applied to commercialinsurance carriers and by statute CHRPP is not to be considered aninsurance company or in the business of insurance. It furthermaintains that the plain language of the Risk Pooling Act, thelegislative intent, and the provisions of CHRPP's Trust Agreementprevent the common law rules regarding selective tender from applyingto a self-insured risk-pooling trust. To resolve this question, wemust examine the nature of the Risk Pooling Act, the Trust Agreement,and the relationship of the relevant parties involved.

The impetus for enacting this particular risk-pooling legislationcan best be understood in its historical context. It is generallyrecognized that during the 1970s there was a medical malpracticeinsurance crisis stemming from an increasing reluctance of insurancecompanies to issue policies and the dramatic rise in premiums beingdemanded by those companies that were issuing policies. As a result,many health-care providers were forced to curtail or cease to rendertheir services due to the difficulty in obtaining insurance atreasonable rates. Anderson v. Wagner, 79 Ill. 2d 295, 301, 402 N.E.2d560, 562 (1979). In 1977, in the wake of this crisis, the Religiousand Charitable Risk Pooling Trust Act was enacted to allow nonprofitorganizations, including hospitals, to pool their risks of certainfinancial losses as a method of protecting themselves against theimposition of legal liability. 215 ILCS 150/2 (West 1998). Thus, theAct provided nonprofit hospitals with a cost-effective, alternativemeans to cover their medical malpractice liability instead of havingto purchase insurance and pay premiums on the commercial market.

While the Act expresses that these trust funds "shall not beconsidered insurance companies or to be in the business of insurance"or be regulated under the Insurance Code (215 ILCS 150/25 (West1998)), nothing in the Act exempts CHRPP from its common lawcontractual rights, duties, and obligations to indemnify coveredpersons as expressed in its Trust Agreement. Indeed, CHRPP hasconceded that "in many respects the coverage provisions of the [T]rust[A]greement follow the same basic structure as an insurance policy."

In many ways, the CHRPP Trust Agreement purports to be a contractof insurance. It provides "hospital liability coverage" and furtherprovides that it will pay on behalf of "Hospitals" judgments orsettlements, as well as defense costs, incurred in response to medicalmalpractice suits. Additionally, to the extent that a physicianqualifies as a "Covered Person" under the Trust Agreement, he isentitled to coverage for all sums that he becomes legally obligated topay as damages due to malpractice injury. Each participating hospitalis obligated to pay a contribution to the trust on behalf of coveredpersons, and each has a minimum deductible to be paid by the hospital. CHRPP has a claims management program, a risk management program, andan underwriting committee which has the right to seek a reservation ofrights in relation to covered persons under the trust. The TrustAgreement includes an "other insurance" clause with provisionsregarding the allocation of funds in cases where there is concurrentcoverage. It also includes provisions to allow CHRPP to reinsure itsrisk. Furthermore, each participating hospital is required to providewritten notice to CHRPP as soon as possible of any threatened claimsagainst the hospital or covered persons.

Based upon the particular provisions in this Trust Agreement,CHRPP should be treated no differently than a traditional insurer forpurposes of applying common law insurance principles as they relate tocoverage issues. For example, under the Trust Agreement, if thenotice provisions of the contract are not adhered to, CHRPP wouldcertainly be entitled to raise coverage defenses to any claim broughtby a covered person for lack of timely notice. See, e.g., NorthbrookProperty & Casualty Insurance Co. v. Applied Systems, Inc., 313 Ill.App. 3d 457, 466, 729 N.E.2d 915, 922 (2000). If CHRPP is entitled toits contractual rights under the Trust Agreement, we find no reasonwhy it should not also be required to meet its contractual obligationsto its covered persons.

Furthermore, Burns specifically makes it clear that the"selective tender" rule is concerned with construing the contractualrelationship between the insurer and the covered person. Thus, thekey question here is not whether a self-insured risk-pooling trust isinsurance, but whether CHRPP's Trust Agreement and ISMIE's policycover the loss to Dr. Baldoceda on the same basis such that thecoverage provided to him is concurrent. As stated previously, therelationship between CHRPP and ISMIE is not effectuated until multiplecoverage is triggered. See Burns, 189 Ill. 2d at 576-78, 727 N.E.2dat 216-17.

In construing the relevant relationship here, from Dr.Baldoceda's perspective, he has chosen to shift his risk of individualliability to ISMIE by paying a premium, and has also chosen to shifthis risk to CHRPP as a contracted-for-benefit of his employment justas in Burns. 189 Ill. 2d at 571, 727 N.E.2d at 213-14 (whereconstruction company paid a premium for its own liability insuranceand also negotiated its additional insured status as a bargained-forbenefit of its subcontract). For purposes of the "selective tender"rule, it does not matter to Dr. Baldoceda whether his coverage derivesfrom a commercial carrier or from a private indemnity agreement. Noris it of significance from Dr. Baldoceda's perspective how thecoverage is funded, whether ISMIE funds the claims or reinsures themor whether the hospital pools its risk or purchases additionalcommercial coverage.

Moreover, nothing in the Act or the CHRPP Trust Agreement limitsDr. Baldoceda's right to exclusively select his CHRPP coverage and toknowingly forgo his ISMIE coverage. Had CHRPP or the participatinghospitals desired to impose a contractual duty upon its coveredpersons to tender claims to all other insurers that cover the loss, itcould have done so by providing such language in its Trust Agreement. Alcan, 303 Ill. App. 3d at 82, 707 N.E.2d at 693-94, citing AmericanCountry Insurance Co. v. Kraemer Brothers, Inc., 298 Ill. App. 3d 805,812, 699 N.E.2d 1056, 1061-62 (1998). Thus, where CHRPP has aconcurrent obligation to cover the risk of Dr. Baldoceda, he has the"paramount" right to exclusively select his CHRPP coverage to theexclusion of his ISMIE coverage. By this holding, CHRPP is only beingrequired to do what it contracted for, provide indemnification for Dr.Baldoceda's individual liability arising out of his employment at thehospital.

CHRPP next argues that public policy dictates that it should notbe responsible for the full amount of its obligation to Dr. Baldocedaunder the "selective tender" rule. Specifically, it maintains that todo so would deplete the assets of the trust, reducing the amount offunds that could be funneled into the public health initiatives ofCHRPP member hospitals. However, the purpose of the trust is not toprovide a safe haven for nonprofit hospitals against employee claims,but rather to provide a cost-effective means of obtaining coverage forits legal liabilities. Additionally, the Second District of thiscourt recently rejected an argument that the rule unduly prejudicesthe targeted insurer because it holds it solely responsible withoutthe benefit of equitable contribution. The court held that prejudicewill always result when the insured elects a particular insurer. Nevertheless, Illinois has chosen to protect the insured's right tochoose or knowingly forgo coverage over the insurer's right tocontribution. Pekin, 318 Ill. App. 3d at 1144, 743 N.E.2d at 1083. Accordingly, we find that CHRPP's status as a risk-pooling trust doesnot defeat the application of the "selective tender" rule and answerthe first certified question in the affirmative.

However, although the above conclusion materially advances thetermination of this litigation under Rule 308 (155 Ill. 2d R. 308),there are many unresolved factual and legal questions that impact onthe ultimate determination of whether the "selective tender" ruleapplies to CHRPP in the instant case. A factual question remains asto whether Dr. Baldoceda effectively renounced the coverage under hisISMIE policy and properly perfected his selective tender of the claimto CHRPP. Dr. Baldoceda and his ISMIE-appointed defense attorneywrote to CHRPP that "[i]t is Dr. Baldoceda's wish to have his ISMI[E]coverage remain secondary; the ISMI[E] policy would be used only inthe event that there was insufficient CHRPP coverage (primary andexcess) to cover his entire loss." The trial court never reached thisissue because it held that selective tender only applied to insurancecompanies in the strict sense of the term.

Additionally, the trial court never reached, and the parties didnot fully address on appeal, whether CHRPP had a duty to defend Dr.Baldoceda. The "selective tender" rule presumes that both insurershave a concurrent coverage obligation. Burns, 189 Ill. 2d at 574-78,727 N.E.2d at 214-217; Alcan, 303 Ill. App. 3d at 77-78, 707 N.E.2d at690-91. Without a duty to defend, Dr. Baldoceda would not have twoavailable policies from which to target and the selective tender rulewould therefore not be applicable to him.⁽²⁾ Accordingly, if on remandthe trial court finds that either CHRPP had no duty to defend Dr.Baldoceda in the Rivera claim or that Dr. Baldoceda failed to properlyperfect the selective tender of his CHRPP coverage, CHRPP would not besubject to the selective tender rule in this case.

Can CHRPP State a Cause of Action for Equitable Remedies?

Our disposition of the second certified question depends upon theanswers to the above unresolved questions on remand. If the"selective tender" rule applies in the instant case, CHRPP would notbe entitled to the equitable remedies it seeks from ISMIE. Asexplained in Burns, the targeted insurer has the sole responsibilityto defend and indemnify its insured. 189 Ill. 2d at 575, 727 N.E.2dat 215. If, however, CHRPP had no duty to defend Dr. Baldoceda or hedid not effectively perfect his tender of the defense and indemnityobligations exclusively to CHRPP, then we must consider whether CHRPPcould state a cause of action for the equitable remedies it seeks.

Contribution is an equitable principle arising among co-insurerswhich permits one who has paid the entire loss to be reimbursed fromother insurers that are also liable for the loss. Schal Bovis, Inc.v. Casualty Insurance Co., 315 Ill. App. 3d 353, 362, 732 N.E.2d 1179,1186 (2000). The reason for this rule is that one insurer has paid adebt that is equally owed by the other insurers. The fact that oneinsurer undertakes the burden of a full settlement payment does notmean the insurer is a volunteer. Aetna Casualty & Surety Co. ofIllinois v. James J. Benes & Associates, Inc., 229 Ill. App. 3d 413,417, 593 N.E.2d 1087, 1090 (1992). In order for the settling party torecover in a contribution action, the policies must cover a risk onthe same basis and there must be identity between the policies as toparties and insurable interests and risks. Schal Bovis, Inc., 315Ill. App. 3d at 362, 732 N.E.2d at 1186. Thus, since contributionclaims are matters solely between insurers, the focus of question twoshifts to the relationship between CHRPP and ISMIE.

Many courts have examined this relationship in the context ofwhether self-insurance can be considered "other valid and collectibleinsurance" for the purpose of assigning liability between insuranceproviders and self-insureds. These courts have held that, when anentity chooses to completely retain the risk of a particular lossrather than obtain a traditional insurance policy, self-insurance isnot insurance. As stated in USX Corp. v. Liberty Mutual InsuranceCo., "Illinois appears to have aligned itself with the majority inrejecting attempts by commercial carriers to treat self-insurance as'other insurance'" in this context. 269 Ill. App. 3d 233, 243, 645N.E.2d 396, 403 (1994).

For example, in Benes, 229 Ill. App. 3d 413, 593 N.E.2d 1087, thecourt considered whether the Intergovernmental Risk Management Agency(IRMA), a municipal joint risk management pool, had the sameobligation to contribute to the settlement of a claim as an insurer. The court held that IRMA did not have the same obligation for purposesof equitable contribution because, "'when a municipality self-insures,it bears all risks itself, and settlements or awards are paid directlyfrom government coffers.'" Benes, 229 Ill. App. 3d at 421, 593 N.E.2dat 1092, quoting Antiporek v. Village of Hillside, 114 Ill. 2d 246,250, 499 N.E.2d 1307, 1308 (1986). The court concluded that thesharing of risk among the self-insured entities under IRMA wasdistinguishable from the shifting of the same risk to for-profitcompanies. See also St. John's Regional Health Center v. AmericanCasualty Co. of Reading, Pennsylvania, 980 F.2d 1222 (8th Cir. 1992)(pooled liability fund was not "other insurance"); Wake CountyHospital Systems, Inc. v. National Casualty Co., 804 F. Supp. 768(E.D.N.C. 1992) (holding that hospital's self-insured retention didnot constitute "other valid and collectible insurance" within meaningof "other insurance" clause of nurse's commercial policy); PhysiciansInsurance Co. of Ohio v. Grandview Hospital & Medical Center, 44 OhioApp. 3d 157, 542 N.E.2d 706 (1988) (determining that self-insuredhospital's contract to provide professional liability coverage for itsresidents was not "other insurance" within the meaning of residents'professional liability policy, and characterizing self-insurance asthe "antithesis" of insurance since it is the retention of the risk ofloss by one upon whom it is directly imposed by law or contract);American Nurses Ass'n v. Passaic General Hospital, 98 N.J. 83, 484A.2d 670 (1984) (holding hospital's self-insured retention was not"other insurance"). Accordingly, a true self-insured does not sharean identity of insurable interests and risks with a traditionalinsurance carrier because it has chosen to retain its risk rather thanshift any of that risk to a commercial carrier. Therefore, there canbe no equitable contribution from the commercial carrier or to thecommercial carrier.

However, the facts in this case present us with a unique set ofcircumstances. Here, unlike in Benes or any of the other cited cases,CHRPP, like ISMIE, has chosen to include an "other insurance" clausein its Trust Agreement. By doing so, it seeks to share the risk ofloss with a commercial carrier when they have coincidental coverage,and it is therefore something other than a pure self-insured which, asstated previously, chooses to retain all of its risk. As such, CHRPPand ISMIE should be treated no differently than they were treated inPadilla. Where both CHRPP and ISMIE have a duty to indemnify Dr.Baldoceda for the Rivera claim, CHRPP is entitled to seek contributionfor the settlement costs it paid on behalf of Dr. Baldoceda.

We reject ISMIE's argument that, if CHRPP had no duty to defend,it does not insure the same interests and risks for purposes ofcontribution. "'It is not necessary that the policies provideidentical coverage in all respects in order for the two policies to beconsidered concurrent,'" and "'as long as the particular risk actuallyinvolved in the case is covered by both policies, the coverage isduplicate, and contribution will be allowed.'" Schal Bovis, Inc., 315Ill. App. 3d at 363, 732 N.E.2d at 1186, quoting 15 Couch on Insurance