1-01-4518)								FOURTH DIVISION

1-02-2797)								jJulyULY 31, 2003

1-02-2831) Cons.

ASSOCIATED AVIATION UNDERWRITERS, INC., 		)

ALBERTO-CULVER COMPANY, THE AMERICAN INSURANCE	)

COMPANY, CENTENNIAL INSURANCE	COMPANY, 		)

CONTINENTAL CASUALTY COMPANY,	FEDERAL INSURANCE )	Appeal from the 

COMPANY, FIREMAN'S FUND INSURANCE COMPANY, 	)	Circuit Court of 

GREENWICH INSURANCE COMPANY, LUMBERMAN'S  	)	Cook County.

INSURANCE COMPANY and SUN INSURANCE OFFICE OF	)

AMERICA,							)

								)

		Plaintiffs-Appellees,			)	

								)

	v.							)	

								)

AON CORPORATION and AON AVIATION, INC.,		)

								)

		Defendants-Appellees.			)	

------------------------------------------------)					

UNITED STATES AVIATION UNDERWRITERS, INC. and	)

UNITED STATES AIRCRAFT INSURANCE GROUP,		)

								)

		Interveners-Appellees,			)

								)

	v.							)

								)	Honorable

PALWAUKEE MUNICIPAL AIRPORT COMMISSION, VILLAGE	)	Stephen A. Schiller,

OF WHEELING and CITY OF PROSPECT HEIGHTS,		)	Judge Presiding.

								)	

		Interveners-Appellants.			)	

	JUSTICE HARTMAN delivered the opinion of the court:

	These appeals consider the propriety of a circuit court good-faith

settlement finding in a subrogation setting.  The unique circumstances of the

appeals involve an insurer that issued a policy containing language which

provided coverage not only for its principal insured, one of the settling

parties, but caused the circuit court, post-settlement, to declare the same

insurer the primary insurer also of the second settling party.1  Prior to the settlement, the insurer recognized coverage for the principal insured, which

previously had been found by a jury the less culpable party in an independent action, settled the claim made by the principal insured under the policy, then

sued the more culpable party in subrogation (for which it was later declared the

primary insurer) and accepted a significantly reduced amount of damages in

settlement from the more culpable party, for which settlement it secured the

good-faith finding.  In doing so, it deprived a third party from pursuing

potentially meaningful contribution from the more culpable party.  For reasons

which follow, we reverse and remand in each of the three appeals taken in this

case.2

	The controversy emanates from property damage claims following the crash

of a private, corporate owned aircraft at Palwaukee Municipal Airport (Palwaukee)

on October 30, 1996.  In the first appeal (docket number 1-01-4518), Palwaukee

Municipal Airport Commission, village of Wheeling and city of Prospect Heights

(collectively the Municipalities) challenge a November 20, 2001 circuit court order, making the good-faith finding in a $6 million "Release and Settlement

Agreement" (Settlement) between defendants, Aon Aviation, Inc. (sometimes Aon Aviation) and Aon Corporation (collectively Aon Defendants) and its insurers,

United States Aviation Underwriters (USAU) and United States Aircraft Insurance Group (USAIG), and plaintiffs, Alberto-Culver Company (Alberto), Alberto's

primary insurer, Associated Aviation Underwriters, Inc. (AAU) and the above-named

separate insurers (collectively Alberto Insurers) (good-faith appeal).

	The Municipalities argue that the circuit court erred by granting Aon

Defendants' motion for a good-faith finding because (1) it ignored the only

evidence presented at the evidentiary hearing; (2) the Municipalities met the governing preponderance of the evidence standard; and (3) the Settlement violates

the terms and purpose of the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01

et seq. (West 2002) (Contribution Act)) and does not satisfy four prerequisites necessary to establish good-faith.  The Municipalities also contend that the Settlement does not represent a reasonable share of Aon Defendants' tort

liability, because Aon Defendants were found 90% liable and Alberto 10% liable

for the accident in a separate wrongful death action not involved in this appeal,

and the settling parties concealed all information regarding the terms of

Settlement.  In addition, the Municipalities assert that the court erred by

refusing to allow discovery and failing to compel compliance with Supreme Court

Rule 237 (166 Ill. 2d R. 237 (Rule 237)) notices before finding an alleged

grossly disparate settlement to be in good-faith.

	In their second appeal (docket number 1-02-2797), the Municipalities contest the denial of their motion for relief of judgment under Code of Civil

Procedure (Code) section 2-1401 (735 ILCS 5/2-1401 (West 2002) (section 2-1401)),

which disputed the good-faith finding, contending that their section 2-1401

motion presented new information that was unavailable at the time the good-faith

finding was entered.  The Municipalities point to a January 11, 2001 letter in

which AAU admitted the true value of the hull coverage claim was $12 million

instead of $28 million.3  The Municipalities argue that Aon Defendants cannot obtain a  good-faith finding on its Settlement because Alberto was the principal insured on AAU's policy, and AAU became Aon Defendants' primary insurer by virtue of an August 6, 2002 circuit court ruling.4  The Municipalities claim that allowing the good-faith finding to stand would have a devastating effect on

public policy of insurance coverage matters.

	The third appeal (docket number 1-02-2831) involves the Municipalities' contention that the circuit court erred by denying their motion to stay the

outstanding subrogation proceedings until the determination of the good-faith

appeal because its August 6, 2002 finding that AAU is Aon Defendants' primary insurer establishes that the Alberto Insurers, having settled with their own

insured, Alberto, stands in Alberto's shoes and should not be allowed to

apportion competing interests of both Alberto and Aon to the detriment of third

parties; as a result, the Municipalities cannot secure a fair contribution

allocation via a third-party complaint against Aon Defendants, who have insulated

themselves from paying their fair share of liability by the alleged good-faith

settlement.

	The issues presented for review include whether circuit court abused its

discretion by: (1) finding that the Settlement was executed in good-faith; (2)

denying the Municipalities' motion for relief from judgment under Code section 2-1401; and (3) denying the Municipalities' motion to stay the subrogation proceedings pending the appeal of the good-faith finding.

Docket Number 1-01-4518 Appeal

	On October 30, 1996, a Gulfstream GIV (GIV) aircraft owned and operated by Alberto crashed upon takeoff from Palwaukee, resulting in the deaths of all four

persons aboard, including chief pilot and captain for Aon Aviation, Martin Larry Koppie; Robert Hampton Whitener, pilot and captain for Alberto; Arthur Quern,

chief executive officer and chairman of the board for Aon Risk Management, Inc.;

and Catherine Mio Anderson, a flight attendant employed by Executive Jet, whose

services were secured by Aon Aviation.  The airplane was destroyed by impact and

fire.  The flight was conducted pursuant to an Interchange Agreement, which

permitted Aon Defendants and Alberto to utilize each corporation's GIV upon

occasion.  Aon Defendants and Alberto agreed, inter alia, to (1) "hold harmless and indemnify the other from loss, expense, damages, claims or suits which they

might suffer as a result of any act or omission of the other party"; (2) maintain

operational control of their own GIV during use by the other party; and (3)

purchase an aircraft insurance policy with a minimum $150,000,000 value to

provide coverage when piloting each other's airplanes.  At the time of the

accident, Aon Aviation operated Alberto's GIV for the business interests of Aon

Defendants.  The accident resulted in the initiation of multiple causes of action

for wrongful death and survival, declaratory judgment and  subrogation.

	The circuit court consolidated for discovery and trial the wrongful death

and survival actions brought by the four decedents' estates against various

combinations of defendants, including Alberto, Aon Defendants, and the

Municipalities.  Whitener's estate alleged that Koppie was at fault for the

accident and that Aon Defendants failed to train and instruct adequately its

pilots concerning procedures in mixed crew situations.  Koppie's estate alleged

that Whitener was at fault and also claimed negligence against Alberto and the

Municipalities.  Alberto and Whitener's estate filed counterclaims and third-

party claims for contribution and contractual indemnity under the Interchange

Agreement against Aon Defendants.  Aon Defendants filed a counterclaim against Alberto for contribution and contractual indemnity pursuant to the Interchange

Agreement.  Aon Defendants and Alberto, however, did not file a counterclaim

against the Municipalities. 

	On May 24, 1999, the circuit court granted summary judgment in favor of the

Municipalities pursuant to the Illinois Local Governmental and Governmental

Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2002) (Tort Immunity Act)).  The estates of Koppie and Quern, and Alberto appealed that decision,

which was reversed and remanded for trial on December 7, 2000.  See Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1117, 740 N.E.2d 819 (2000).  The supreme court denied the Municipalities' petition for leave to appeal. 

Anderson v. Alberto-Culver USA, Inc., 194 Ill. 2d 565, 747 N.E.2d 351 (2001).

	The consolidated causes of action proceeded to trial on November 14, 2000,

but did not include claims asserted against the Municipalities.  Prior to

verdict, the Anderson and Quern estates entered into settlement agreements with

Alberto and their causes of action were dismissed.  Alberto retained their

contribution and third-party claims against Aon Defendants for those settlements. 

	On January 23, 2001, the jury returned a verdict in favor of the Whitener

estate and against "Aon" in the amount of $21,051,943, which was reduced by 10%

for Whitener's contributory negligence to $18,946,749.  The circuit court entered

judgment on the verdict on January 24, 2001.  The order stated that the jury

rendered a verdict against "Aon Corporation" and declared a mistrial as to any

and all remaining causes of action, including the Koppie estate's claim and all

claims for contribution "by and between Alberto-Culver USA Inc. and Aon Aviation

Corp." and contractual indemnity in the Interchange Agreement "by Aon Corporation

aka [sic] Aon Aviation Corp. against Alberto-Culver, USA, Inc."  With respect to the declaration of mistrials, the order was corrected to remove Aon Corporation

from the cross-action for contribution and include Aon Aviation for the

contribution and contractual indemnity actions.  

	On July 12, 2001, the circuit court granted Alberto's emergency motion to

correct the record and ordered nunc pro tunc that judgment be entered on the jury verdict in favor of Whitener's estate and against Aon Aviation.  The order

declared mistrials in all remaining causes of action, found that naming Aon

Corporation as the party against whom judgment was entered on January 24, 2001,

was a clerical error and that the January 24 order was void and of no effect. 

Another July 12, 2001 order dismissed Aon Corporation with prejudice and without

costs, nunc pro tunc, as of November 28, 2000.  Aon Defendants appealed.

	On March 6, 2003, this court affirmed the judgment of the circuit court,

and found, inter alia, that the trial was conducted fairly and properly and that Aon Defendants had waived and were estopped from any attempt to draw a

distinction between their two corporate entities in order to create a procedural

advantage.  Anderson v. Alberto-Culver USA, Inc., 337 Ill. App. 3d 643, 661, 668, 789 N.E.2d 304 (2003).

	In a related action pertinent to the instant appeals, the Alberto Insurers

filed a complaint for declaratory judgment and at law against Aon Defendants,

USAU and USAIG on January 16, 1997, seeking to recover the $28 million they paid

to Alberto for loss of the aircraft.5  No recovery was sought from the Municipalities in this action. 

	Aon Defendants filed a counterclaim against the Alberto Insurers and

Alberto, seeking a declaration that Aon Defendants were entitled to coverage

under Alberto's insurance policy, including indemnity of the declaratory judgment

action.  The Alberto Insurers responded to the counterclaim, but did not initiate

a third party claim against the Municipalities. 

	On January 12, 2001, prior to the wrongful death jury verdict, Timothy

McSwain, a USAU representative, faxed a letter he received from AAU Senior Vice

President Sharon Holahan to Raymond I. Skilling of Aon Corporation.  Holahan

noted an existing question of whether USAU was the primary or excess insurer of

Aon Defendants and disputed Aon Defendants' argument that AAU is their primary

insurer. 

	On January 24, 2001, following the rendering of the wrongful death jury

verdict, a correspondence from Holahan to McSwain stated that AAU agreed to

accept $6 million as settlement of the AAU/Alberto hull subrogation claim. 

Holahan also noted, "[t]his settlement will be final as to the hull only and the

amount stated as a percentage or otherwise will have no bearing on other pending

actions arising out of this accident.  If this amount to be paid is accepted by

your company, there will not be any reimbursement by AAU/Alberto Culver for

amounts recovered from other parties including the municipality."  USAU accepted

AAU's January 24, 2001 offer and agreed that it and USAIG would pay $4 million

and that Aon Defendants would contribute $2 million for the settlement. 

	On June 8, 2001, AAU and Alberto executed a "Full Release and Settlement

Agreement" for the aircraft hull claim in accord with the settlement agreement

previously reached between the parties.  Aon Defendants and USAU, however, failed

to pay the agreed settlement funds and, thereafter, AAU and Alberto moved to

enforce the terms of the aircraft hull settlement. 

	On August 14, 2001, Aon Defendants moved for a good-faith finding and

dismissal of the settlement agreement in order to extinguish any contribution

claims under the Contribution Act.  Aon Defendants also pleaded that a good-faith

finding be extended to their insurers, USAU and USAIG.  In addition, Aon

Defendants moved to enforce the aircraft hull settlement pursuant to a March 21,

2001 release, alleging that they did not have an opportunity to provide their

objections to AAU's proposed release. 

	On August 20, 2001, the Municipalities filed an emergency petition to

intervene for the sole purpose of objecting to Aon Defendants' motion for a good-

faith finding, claiming that an August 16, 2001 facsimile of an amended notice

of motion for good-faith finding and dismissal from Aon Defendants was the first

attempted service of any notice with respect to the declaratory judgment action. 

The circuit court granted the Municipalities' petition.  In support of their

exception to Aon Defendants' motion for good-faith finding and dismissal, the

Municipalities argued that (1) the court had no basis upon which to find that the

settling parties reached an agreement in good-faith because no settlement was

presented to the court; and (2) the proposed settlement agreements do not meet

the good-faith requirements of the Contribution Act.  The Municipalities also

moved for enlargement of time and evidentiary hearing, which the Alberto Insurers

and Alberto opposed. 

	Following a hearing on October 9, 2001, the circuit court denied the

Municipalities' motion for enlargement of time, but allowed an evidentiary

hearing to establish the basis for their exceptions to Aon Defendants' motion for

a good-faith finding.  The Municipalities filed notices and revised notices to

produce pursuant to Supreme Court Rule 237 (166 Ill. 2d R. 237 (Rule 237)),

requesting production of persons most knowledgeable of the negotiations leading

up to the terms of settlement between the Alberto Insurers, Alberto, Aon

Defendants, USAU and USAIG, ownership of the aircraft, responsibility for

operation of the aircraft at the time of the accident, the verdict rendered in

the wrongful death case, the decisions of Alberto or its insurers to file

subrogation claims and numerous documents related to the settlement agreement. 

The Municipalities also filed an emergency motion to compel discovery requests.6  Alberto and its insurers filed an emergency motion to quash the Municipalities'

Rule 237 notices, which the court granted because the Municipalities' requests

were "unparticularized and indiscreet."  The Municipalities filed a second,

revised notice to produce at the evidentiary hearing, which no party sought to

quash. 

	On November 5, 2001, the Alberto Insurers, Alberto, Aon Defendants, USAU

and USAIG executed the Settlement, which required Aon Defendants to pay AAU $2

million and USAU and USAIG to pay AAU $4 million.  The Settlement released Aon

Defendants, USAU and USAIG from "any liability, claims, demands, actions or

causes of action relating to" the destroyed Alberto GIV as set forth in count I of AAU's third amended complaint in the declaratory judgment action.7 

	Following an evidentiary hearing on Aon Defendants' amended motion for

good-faith finding and dismissal, the circuit court granted the motion and found

that the Settlement was made in good-faith, thereby extinguishing any

contribution liability of Aon Defendants for the matters released.8  The court also ordered that count I of AAU's fourth amended complaint against Aon

Defendants be  dismissed with prejudice, but that the declaratory judgment and

subrogation action as to all other counts were not dismissed.  In addition, the

court included language in its order pursuant to Supreme Court Rule 304 (155 Ill.

2d R. 304).  The Municipalities appeal the court's decision to grant Aon

Defendants' motion for good-faith finding and dismissal.

Docket Number 1-02-2831 Appeal

	In another cause of action pertinent to these appeals, the Alberto Insurers filed a subrogation action against the Municipalities, seeking $28 million for

the loss of the aircraft.  The August 16, 2000 subrogation complaint did not

include Aon Defendants as a party.  The Municipalities sought leave to file a

third-party complaint against Aon Defendants and Alberto for contribution,

alleging that they are liable for all or part of the Alberto Insurers' claims

against the Municipalities.

	On January 29, 2002, Aon Defendants moved to dismiss the Municipalities'

third-party complaint, alleging that any possible contribution liability to the

Municipalities for AAU's hull loss claim was extinguished by the November 20,

2001 circuit court order granting Aon Defendants' motion for a good-faith

finding.  In response to Aon Defendants' motion, the Municipalities stated that

they adopted and incorporated all arguments presented before the circuit court

in the pending appeal of the good-faith order and, therefore, Aon Defendants'

motion to dismiss was not ripe for decision.  	

	On August 6, 2002, the Municipalities moved to stay the subrogation

proceedings pending appeal of the good-faith finding.  The Municipalities argued

that reversal of the circuit court's good-faith finding would render Aon

Defendants' motion to dismiss as moot. 

	On August 13, 2002, the circuit court denied the Municipalities' motion to

stay and simultaneously granted Aon Defendants' motion to dismiss the

Municipalities' third-party complaint.  The Municipalities timely appeal the

court's August 13, 2002 order denying their motion to stay the subrogation

proceedings pending appeal of the good-faith finding. 

Docket Number 1-02-2797 Appeal

	In filing their section 2-1401 motion, the Municipalities argued that, had the circuit court known certain recently discovered facts at the time of the

November 20, 2001 evidentiary hearing, it would have denied Aon Defendants'

motion for a good-faith finding.  The Municipalities first claimed an admission

made by the Alberto Insurers in the good-faith appeal that the Settlement would

have been in the amount of $12 million instead of $6 million if it were limited

solely to tort considerations, was new evidence.  Aon Defendants were not aware

of the facts disclosed by the Alberto Insurers as set forth in their response

brief from the good-faith appeal.  The Municipalities also noted an August 6,

2002 order entered by the circuit court, which granted summary judgment in favor

of USAU and found that "AAU's policy provides Aon Aviation, Inc. primary coverage

relating to the damages and claims plead herein."  The Municipalities argued

that, as a matter of fact and law, AAU was the insurer of Aon Defendants when it

sued Aon Defendants for declaratory judgment, subrogation and when the Settlement

was executed.  The Municipalities contended that an insurer should not be allowed

to deny coverage to the more culpable of the two co-insureds and then subrogate

and enter into a reduced settlement agreement with the more culpable co-insured

to protect that co-insured from a contribution claim by a third-party.  The

Municipalities appeal the denial of their section 2-1401 motion. 

	Prior to addressing the merits of the instant appeals, Aon Defendants', the

Alberto Insurers' and Alberto's (collectively, movants) motion to strike the

Municipalities' statement of facts in their amended brief from the good-faith

appeal will be addressed.  Supreme Court Rule 341(e)(6) (188 Ill. 2d 341(e)(6)

(Rule 341(e)(6))) provides that the statement of facts be stated "accurately and

fairly without argument or comment, and with appropriate reference to the pages

of the record on appeal."  Movants assert that the Municipalities' statement of facts are highly argumentative, listing numerous examples of improper comments. 

A review of the Municipalities' statement of facts shows that it is highly

argumentative, conclusional and, in numerous instances, states propositions of

fact unsupported by the record.  Specifically, the Municipalities' principal

brief lists bullet points as "facts," but are filled with argument and legal

conclusions.  Nevertheless, we elect to deny movants' motion to strike and

admonish the parties to read and follow Rule 341(e)(6) in future appeals. 

	The Municipalities initially assert that the circuit court erred by finding that the Settlement was executed in good-faith, because the uncontroverted evidence reveals that the Settlement was manufactured specifically to burden a

nonsettling party with a disproportionate allocation of liability.  The

Municipalities do not seek to have the Settlement invalidated; rather, they argue

for reversal only of the good-faith finding so that the Settlement will remain

in effect, thereby allowing them to seek contribution from Aon Defendants. 

According to the Municipalities, reversal of the court’s decision would fulfill

the goals of the Contribution Act because the amount they may recover from Aon Defendants potentially would provide for an equitable distribution among

tortfeasors.  

	Aon Defendants respond that the Municipalities have failed to prove by a

preponderance of the evidence that the Settlement was not made in good-faith and

that the record is devoid of evidence demonstrating tortious or wrongful conduct

amounting to fraud or collusion by Aon Defendants.  The Alberto Insurers and

Alberto respond that the Municipalities failed to provide any evidence that the

Settlement was not made in good-faith and, therefore, the circuit court properly

granted Aon Defendants' motion.

	The determination that a settlement was executed in good-faith will not be

disturbed on appeal absent an abuse of discretion.  McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 44, 607 N.E.2d 1271 (1992).  The Contribution Act provides a right of contribution "where 2 or more persons are

subject to liability in tort arising out of the same injury to person or

property, or the same wrongful death," although judgment has not been entered

against any or all tortfeasors.  740 ILCS 100/2(a) (West 2002).  "The right of

contribution exists only in favor of a tortfeasor who has paid more than his pro

rata share of the common liability, and his total recovery is limited to the

amount paid by him in excess of his pro rata share.  No tortfeasor is liable to

make contribution beyond his own pro rata share of the common liability."  740

ILCS 100/2(b) (West 2002).  The pro rata share of each tortfeasor is determined

by his relative culpability.  740 ILCS 100/3 (West 2002).  Pertinent to the

present case, the Contribution Act states:

"[w]hen a release or covenant not to sue or not to

enforce judgment is given in good-faith to one or more

persons liable in tort arising out of the same injury or

the same wrongful death, it does not discharge any of

the other tortfeasors from liability for the injury or

wrongful death unless its terms so provide but it

reduces the recovery on any claim against the others to

the extent of any amount stated in the release or the

covenant, or in the amount of the consideration actually

paid for it, whichever is greater."  740 ILCS 100/2(c)

(West 2002).

	Although the Municipalities argue that the Settlement fails to satisfy four

factors establishing whether a settlement was made in good-faith, as articulated

in Wreglesworth v. Arctco, Inc., 317 Ill. App. 3d 628, 634, 740 N.E.2d 444 (2000), the recent supreme court decision, Johnson v. United Airlines, 203 Ill. 2d 121, 133, 784 N.E.2d 812 (2003) (Johnson), is determinative of the outcome in the present case without necessitating application of these factors.  

	In Johnson, which involved the collision of two aircrafts on the runways of an airport owned and operated by the city of Quincy (Quincy), the supreme

court reviewed the claim of Raytheon Aircraft Company (Raytheon), which argued

that the circuit court abused its discretion when it refused to allow discovery

or conduct an evidentiary hearing with respect to Quincy's relative culpability

before deciding that a settlement agreement entered into by the administrators

of decedents' estates and Quincy was made in good-faith.  Upon belief that it was

immune from all tort liability, Quincy maintained it nevertheless agreed to settle with decedents' estates for a nominal amount to avoid the time and expense

of additional litigation.  Raytheon contended that, where the amount tendered in

a settlement is nominal, resulting in a gross disparity between the settlement

amount and claimed damages, a nonsettling party should be allowed to show that

the settlement amount bears no reasonable relationship to the settling party's

relative culpability. 

	The supreme court held that settling parties carry the initial burden of making a preliminary showing of good-faith by establishing, at a minimum, the

existence of a legally valid settlement agreement.  The court noted, however,

that not all legally valid settlements satisfy the good-faith requirements of the

Contribution Act, citing Stickler v. American Augers, Inc., 325 Ill. App. 3d 506, 511, 757 N.E.2d 573 (2001) (Stickler).  Upon a preliminary showing of good-faith by the settling parties, the party challenging the settlement must prove the

absence of good-faith by a preponderance of the evidence.  Johnson, 203 Ill. 2d at 132.  The determination of whether a settlement has been executed in good-

faith must strike a balance between public policies promoting the encouragement

of settlements and the equitable apportionment of damages among tortfeasors. 

Johnson, 203 Ill. 2d at 133; Dubina v. Mesirow Realty Development, Inc., 197 Ill. 2d 185, 193-94, 756 N.E.2d 836 (2001) (Dubina).  The court emphasized that a settlement agreement will not satisfy the good-faith requirement "if it conflicts

with the terms of the [Contribution] Act or is inconsistent with the policies

underlying the [Contribution] Act," based on the totality of the circumstances. 

Johnson, 203 Ill. 2d at 134; Ballweg v. City of Springfield, 114 Ill. 2d 107, 122-23, 499 N.E.2d 1373 (1986). 

	In accordance with the Contribution Act, the Johnson court noted, "[t]he amount of a settlement must be viewed in relation to the probability of recovery,

the defenses raised, and the settling party's potential legal liability."  203

Ill. 2d at 137.  Quincy claimed absolute immunity under the Tort Immunity Act and

Raytheon did not deny that, if Quincy were immune from liability, its third-party

contribution claims would be barred.  Decedents' estates never sued Quincy directly because of the diminished likelihood of success.  As a result, no

evidence was offered demonstrating that the settlement was motivated by a desire

to impede a legitimate claim for contribution.  The supreme court could not

conclude that the nominal amount of the settlement and the resulting advantage

for Quincy indicated the presence of bad faith and held that the settlement fell

short of collusion or wrongdoing.  Johnson, 203 Ill. 2d at 138-39.

	Here, the Settlement involves two of the three named tortfeasors and their

insurers, rather than an agreement between plaintiffs and certain tortfeasors as

in Johnson and other authority analyzing the underlying policies of the Contribution Act.  See Dubina, 197 Ill. 2d at 195-97 (settlement agreement of a tort action for property damage was contrary to the terms of the Contribution Act

where plaintiffs, as a condition of the agreement, assigned their causes of

action to a group of settling defendants, thereby depriving a nonsettling

defendant of its statutory right to a setoff); In re Guardianship of Babb, 162 Ill. 2d 153, 172, 642 N.E.2d 1195 (1994) (Babb) (loan-receipt agreements violated the Contribution Act as collusive because they allowed a settling tortfeasor to

recover contribution from another tortfeasor whose liability was not extinguished

by the settlement, and attempted to deprive nonsettling tortfeasors of their

right to a setoff, which protects nonsettling defendants from paying more than

their pro rata share of the final damage judgment).

	The Contribution Act provides that "[a]nyone who, by payment has discharged

in full or in part the liability of a tortfeasor and has thereby discharged in

full his obligation to the tortfeasor, is subrogated to the tortfeasor's right

of contribution."  740 ILCS 100/2(f) (West 2002).  Accordingly, AAU, as subrogee,

has stepped into the shoes of Alberto, the subrogor, for the purpose of

recovering contribution from the remaining tortfeasors for the $28 million it

paid to Alberto for the hull loss.  See Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 319, 597 N.E.2d 622 (1992) (Dix Mutual Insurance); Gable v. Reznick, 183 Ill. App. 3d 171, 173, 538 N.E.2d 1325 (1989).

	Significantly, at the time of the settlement, AAU knew by virtue of its

policy covering Alberto, as well as the Interchange Agreement, that potentially AAU also could be found Aon's primary insurer, as the circuit court later found. 

Any payments AAU made on Aon's behalf as its primary insurer, therefore,

converted AAU  into Aon's subrogee, as well.

	Here, unlike Johnson, the legal liability of a settling party, Aon Defendants, was determined by a trier of fact prior to the execution of the

Settlement.  As noted earlier in this opinion, although Aon Defendants were found

90% liable for the accident in the wrongful death case brought by the Whitener

estate, Aon Defendants in the present case effectively were released from any

contribution liability for the loss of the aircraft by virtue of the good-faith

finding.  Nevertheless, AAU continues to pursue the Municipalities by seeking

recoupment of the $28 million hull loss in its subrogation action.  

	Although nonsettling defendants in a contribution setting may not be

parties to the settlements entered into by the settling tortfeasors, they may

possess rights that are affected by those settlements.  Bowers v. Murphy & Miller, Inc., 272 Ill. App. 3d 606, 610, 650 N.E.2d 608 (1995).  An agreement cannot be construed as a good-faith settlement under the Contribution Act if the

effect of the settlement shifts a disproportionally large and inequitable portion

of the settling defendant's liability onto the shoulders of another.  Stickler, 325 Ill. App. 3d at 512.  

	In the case sub judice, considering Aon Defendants' 90% liability as found by a trier of fact, the disparity between the settlement amount and claimed

damages, under the circumstances presented in this case, is a clear indication

that the Settlement was not executed in good-faith.  The nature of the Settlement

and the settling parties' actions further demonstrate the settling parties' motivation

to impede the Municipalities' claim for contribution from Aon Defendants.  At the time that AAU settled with Aon Defe25

ndants, AAU recognized that Aon Defendants and

their insurers sought a ruling that Aon Defendants were insureds of AAU.  The $62

million payment from Aon Defendants, who eventually were found to be insureds of

AAU and the $4 million payment from Aon Defendants' insurers, in effect, amounts

to a setoff that could prove to be a potential windfall pending AAU's success in

its subrogation action against the Municipalities.  Such a result violates the

policy of the Contribution Act requiring the equitable apportionment of damages

among tortfeasors.  AAU additionally benefitted from the Settlement because it collected its payment from Aon Defendants although an insurer may not pursue

subrogation against its own insured.  See Dix Mutual Insurance, 149 Ill. 2d at 323.  

	As a result of the good-faith finding, the Municipalities, who had no

notice of AAU's declaratory judgment action against Aon Defendants, are liable

potentially for the entire $28 million representing the cost of the aircraft

because  Aon Defendants were released from liability for the loss of the

aircraft.  AAU's failure to give notice of the declaratory judgment action or the Settlement to the Municipalities and its fortuitous concealment of the existence

of its subrogation claim against the Municipalities from Aon Defendants has allowed it to fashion separate litigation strategies on an identical claim in two

separate courtrooms without the fear of adverse admissions affecting the other

case.  The Settlement has allowed AAU to manipulate the settlement process by minimizing its exposure as a prospective indemnitor of Aon Defendants.

	The totality of the foregoing circumstances illustrate a concert of action by the settling parties that deprived the Municipalities of their rights under

the Contribution Act by causing them to pay a potentially higher amount than their pro rata share, while minimizing the Alberto Insurers' exposure for indemnification of the aircraft's value.  Further, Aon Defendants' settlement payment was grossly disproportionate to their relative liability, in conflict

with the policy of the Contribution Act.  Dubina, 197 Ill. 2d at 196; Babb, 162 Ill. 2d at 172.  Accordingly, the circuit court abused its discretion by granting Aon Defendants' motion for good-faith finding and dismissal.  

	The above findings also are outcome determinative of the appeals in docket

numbers 1-02-2797 and 1-02-2831 because, in effect, they grant the Municipalities

the relief requested in both their section 2-1401 motion and motion to stay. 

Reversal of the circuit court's good-faith finding requires the unresolved cases

enumerated above to return to the same status prior to the court's grant of Aon

Defendants' motion for good-faith finding and the denial of the Municipalities'

motion to stay.  The court also must vacate its order granting Aon Defendants'

motion to dismiss the Municipalities' third-party complaint.  Based upon the

foregoing, the issues raised in docket number 1-02-2797 and 1-02-2831 need not

be addressed further here.

	Accordingly, the decisions of the circuit court of Cook County to grant Aon

Defendants' motion for good-faith finding and dismissal, deny the Municipalities'

motion for relief from judgment under Code section 2-1401 and deny the

Municipalities' motion to stay the subrogation proceedings pending the outcome

of the good-faith appeal are reversed and the cause remanded for further

proceedings not inconsistent with the conclusions set forth above.

	Reversed and remanded with directions.

	THEIS, P.J., and GREIMAN, J., concur.