## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Skokie Casti ngs, In c. v. Illinois In suran ce G uaran ty Fun d

, 2013 IL 113873

Caption in S upreme Court: SKOKI E CASTI NGS, I NC., as Successor to Wells Manufa ctur i n g Company
, Appellee
, v. I L L I NOI S I NSURANCE GUARANTY FUN D, Appellant.

Docke t No. 113873

Filed October 18, 2013

Held ( Note : Thi s sy ll abus

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The I nsuranc e Guar anty Fund’ s statutory obligation to pay claims ag ainst insolvent member insurers which are liquidated is proper ly construed to extend to worke rs’ compensa tion claims over $300,000, whet h er the insurer is excess or primary and whether or n o t p ay ments are made direc tly to the employ ee.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from the Circuit Court of C ook County
, the Hon. Michae l B. Hy man, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Steven T. Whit mer, Hug h S. Ba lsam and Christopher D. Seps, of L ocke L ord B issell & L iddell, of Chicag o, for a ppellant.

J ack M. Shanahan and L aure n Z immer, of I nman & Fitzgibbons, L td., of Chicag o, for a

ppellee.

J ustices J USTI CE KARMEI ER delive r e d th e judgme nt of the court, with opinion.
J ustices Fr eema

n, Gar man, Bur ke, and Theis concur

red in the judgme nt and opinion. Chief J ustice Kilbride dissented, w ith opinion.
J ustice Thomas dissented, w ith opinion.

OP INION

¶ 1 When an insurance company authorized to tr a n s a c t b u s in e s s in I llinois become s insolvent and is unable to pay claims under policies it has issued to its insureds, the I llinois I nsuranc e Guar anty Fund will step in to pay those claims afte r an order has been enter ed liquidating the
company

. See 215 I L CS 5/532 et seq. (West 201 0). The Fund’ s obliga tion to pay cover ed claims is subject t o cer

tain qualifica

tions and li mitations, including a cap on the amount it wi ll pay on any particula r claim. That cap is inapplicable, howeve r, to “any wo rk er s compensa tion claims.” 215 I L CS 5/ 537.2 (West 2010). ¶ 2 There is no dispute that claims under policies p urcha sed by employ ers to provide primary

cover ag e for

awa rds g rante d to their injured employ ees unde r the Workers’ Compensation Act (820 I L C S 3 0 5 / 1 et seq. (West 2010)) fall within the “wor kers compensa tion claim” exemptio n f

r o m th e s ta

tutory cap. The question prese nted by this decla ratory judgme nt action is whether claims under policies providing exc ess cove ra ge for worke rs’ compensa tion

awa rds ar e exempt as well. ¶ 3 On cross-motions for s u m m ar y j u d gm en t fi l ed b y an em p l o y er whose wor kers’
compensa tion car

rier had been liquidated and the I ll i n o i s I nsuranc e Guar anty Fund (the Fund)
, the circ uit court of Cook County answe red this question i n t h e affirmative and conclude d, inter alia
, that cla ims under the excess cover ag e policies purcha sed by the employ er in this case wer e not subject t o t h e statutory cap, that the Fund had improperly terminated pay

ments for the injured employ ee’ s worke rs’ compensa tion awa rd afte r the cap

was rea ched, and that the Fund was obligated to reimburse the employ er for all worke rs’
compensa tion pay

ments it had made to its injured employ ee following liqu i d at i o n of the employ er’ s worke rs’ compensa tion car rier. The appellate court unanimously aff irmed. 2012 I L App (1st) 111533. We g rante d the Fund’s p eti tion for leave to appea l. I ll. S. Ct. R. 315 (ef f. J uly 1, 2013). For the rea sons that follow, we now aff irm the judgme nt of the appellate
court.

-2-¶ 4 BA CKGROUND

¶ 5 The pertinent fac ts are und is p u te d

. We ll s M a

n u f actur ing Company was a Skokie, I llinois
, business which manufacture d alloy and gra y alloy castin gs and ductile iron. I n the course 1 of i t s b u s i ness, Wells elec ted to bring itself within the cover ag e of the Workers’ Compensation Act (820 I L CS 305/1 et seq. (West 2010)). By making that elec tion, Wells did
not relieve itself of any liability for the inju ri es s u s t ained by its employ ees. I t mere ly immuniz ed itself from being sued i n tort by its employ ees for rec overy of damag es for

acc idental i nj u ri es t h ey sustained arising from and in the course of their employ ment. 820 I L CS 305/2, 5 (West 2010)

. Once the elec tion occurr ed, Wells’ employ ees w ere limit ed to their reme dies under the Workers’ Compensation Act. 820 I L CS 305/5(a), 11 (West 2010). ¶ 6 Employ ers s u ch as W el l s wh i ch el ec t t o avail themselves of the provisions of the Workers’ Compensa

ti o n A ct must make provision for secur ing pay ment of the compensa tion provided for by the statute. They may do so by purcha sing insurance providing full cover ag e (820 I L CS 305/4(a)( 3) (W est 2010)), but that is not their only option. They may also elec t to demonstrate to the I llinois Workers’ Compensation Commi ssion t h at t h ey possess the financ ial resour ces t o s el f-insure (820 I L CS 305/4(a)( 1) (West 2010)); they may furnish “sec urity
, indemnity or a bond” g uara nteeing pay

ment (820 I L CS 305/4(a)( 2) (West 2010));

or they make some other arr ang ement satisfac tory to the Commi ssion (820 I L CS 305/4(a)( 4) (West 2010)). I n addition, the law aff ords them the flexibi lity to use any of these latter three options (self- insuring; furnishing secur ity
, etc.; or “other ”) to secur e pay ment of part of their obliga t i on and then to purcha se an excess cover ag e policy for the rema inder. 820 I L CS 305/4(a)( 2), (3) (West 20 1 0 ). I n this case , that is the option Wells elec ted to take, selfinsuring in part and purcha sing worke rs’ compensa ti o n excess cover ag e from Home I nsuranc e Company

for the r emainder

. ¶ 7 The terms of the cover ag e which Wells purc hased from Home I nsuranc e wer e set forth in two rela ted policies which took eff ect on Aug ust 1, 1984, an “Ag g reg ate Ex cess Workers’ Compensation and Employ ers’ L iabilit y P o l icy ” and a “Specif ic Ex cess Workers’ Compensation and Employ ers’ L iability Policy .” The “Ag g reg ate Ex cess” policy specifie d
g ener ally that it would indemnify Wells for the sums Wells actua lly paid fo r either “compe nsation and other benef its require d of [i t] by the worke rs’ compensa tion law” or “by

rea son of *** Employ ers’ L iability
, which shall mean the liability imposed upon [W ells] by law for damag es because of bodily injury by acc ident or di sease , [etc.].” Corresponding ly
, it also aff orded cover ag e for, among other thin gs , “[ l ] egal expenses in connec tion with hear ings befor e the State I ndustrial Commi ssion” or “re asonable leg al and other expenses in defe nse of any claim or suit ag ainst [W ells]” alleg ing employ er liability
, as the case might be. ¶ 8 The second policy
, titled “Specif ic E x ce s s W o rk er s ’ Compensation and Employ ers’

At some poi nt, and the re cor d does not sho w when or how, Skok ie Cast ings, I nc., bec ame 1

a cor por at e suc ces sor to We ll s Ma nuf act uri n g. S kokie Cast ings ini ti at ed thi s li ti gatio n as We ll s’

suc ces sor and is th e no m ina l p la int if f. Be cau se the ope ra ti ve fac ts al l i nvolve We ll s, h owever, we sha ll re fe r t o t he p la int if

f a s W el ls in or der to avoid con fus ion

.

-3-L iability Policy ,” specifie d that Home I nsuranc e ag ree d to indemnify Wells “ag ainst excess

loss, subject to the limit ations, conditions and other terms of this policy
, which [W ells] may sustain on acc ount of *** compensa tion and other benef

its require d o f [W ells] by the Workers Compensation L aw.” Under the policy
, Wells’ reta ined limit of liability
, that is, the
amount Wells had to pay out itself befor e Home I nsuranc e’s obligat i o ns under the policy would be trig g ere d, was $20 0
, 0 0 0

. T h e upper limit of Home I nsuranc e’s obligation to indemnify Wells was listed as “Statutory Workers’ Compensation—Unlimit ed Employ ers’ L iability .” ¶ 9 I n Fe bruar

y of 1985, while the fore g oing policies wer e in eff ect, a Wells employ ee named Mona Soloky was seriously injured in the course and scope of her employ ment. Soloky filed

a claim for ben efits with the I llinois I ndustrial Commi ssion (now the I llinois Workers’ C o mpensation Commi ssion (see Pub. Act 93-721, eff

. J an. 1, 2005)) pursuant to the Workers’ Compensation Act (820 I L CS 305/1 et seq. (West 2010)). The Co m m i ssion deter mined that Soloky was totally and perma nently disabled and awa rded her all her

rea sonable a

nd nece ssary

medical c osts plus weekly benef it pay ments of $394.25 for life

. ¶ 10 W el l s paid the amounts awa rded to Soloky by the Commi ssion until the $ 2 0 0
, 0 0 0
reta ined limit of liability set forth in its excess cover ag e policies with H ome I nsuranc e was

rea ched. There afte r, it looked to Hom e I nsuranc e to bear the cost of Soloky ’s worke rs’
compensa tion awa

rd. Home I nsuranc e emplo y ed a t hird-par ty administrator named the Martin Boy er Company to ha ndle the pay

ments it owe d under the excess cover ag e policies it had issued to Wells. Throug h the Martin Boy er Company
, Home I nsuranc e paid benef its
to Soloky pursuant to the Commi ssion’s awa rd. I t did so until it beca

me insolvent, went into

rec eiver ship and was liquidated. ¶ 11 As noted at the outset of this o p i n ion, I llinois has established the I nsuranc e Gua ranty Fund to help protec t insureds such as Wells wher e, as here
, their insurance car riers become insolvent and cannot meet their policy obligations

. 2 1 5 I L C S 5/532 (West 2010). All insurance companies authorized to transac t business in I llinois are members of the Fund (215 I L CS 5/ 534.5 (West 2010)) and must rema in so as a condition of their doing business here (215 I L CS 5/ 535 (West 2010)). Home I nsuranc e Company

was such a

member. ¶ 12 The Fund itself is divided into se parate acc ounts, one for automobile insurance and the other for all other insurance to which provisions of the Insuranc e Guar anty Fund statutes apply
, including insurance cover ing worke rs’ compensa tion. 215 I L CS 5/535 (West 2010). Members of the Fund, i.e.
, all insurance companies authorized to conduct business here
, are char g ed an annual fee to cover the Fund’ s conting ent expen s es

. 215 I L CS 5/537.1 (West 2010). I n addition, the Fund assesses ever y mem ber of the Fund for a share of the total
amount the Fund must pay out to cover claims when a member become s i n s o l v ent. For purposes of c alculating the assessments, whic h are made a nnually
, the two Fund a ccounts, auto and other, are trea ted separ ately
, but within each acc ount no distinction is draw n betwee n primary

and excess policies. 215 I L CS 5/ 537.6 (West 2010). ¶ 13 When an order of liquidation is enter ed ag ainst an insolvent Fund member, the Fund has

a statutory obliga tion to pay “cove red claims” which exis ted prior to entry of the liquidation order or ar ising within 30 day s afte r t he entry of such order
, or wit hin other specified ti me

-4-frames, and subject to various c o n d it ions and limit ations. 215 I L CS 5/537.2 (West 2010). For

purposes of the statute, a “cove red claim” is define d to include any “unpaid claim for a loss arising out of and within the cover ag e of an insurance policy to which [t he law g overning the Fund applies] and which is in forc e at t h e t i m e o f t h e occurre nce giving rise to the unpaid claim.” 215 I L CS 5/ 534.3(a) (West 2010). ¶ 14 Acc ording to the rec ord befor e us, an insured whose car rier has been liquidated invokes the Fund’ s protec tion by submitt ing a “p roof of claim” form to it to document the unpaid claim for which it is seeking benef its from the Fund. There is n o q u es tion that Wells complied wit h the requisite proce dures, nor is there any dispute that t h e amounts owed by Home I nsuranc e under the worke rs’ compensa tion excess cover ag e policies purch ased by Wells to help satisfy its obliga tions under the Workers’ Compensation Act and which wer e left unpaid when Home I nsuranc e beca me insolvent and was liquidated met the require ments of a “cove red claim” und er section 534.3(a) of the I nsuranc e Code (215 I L CS 5/534.3(a) (West 2010)), trig g ering the Fund’ s obligations under sect io n 5 3 7

. 2 ( 2 1 5 I L CS 5/537.2 (West 2010)). The Fund there fore hono red that claim and assumed, from Home I nsuranc e, responsibility

for pa y ment of the sums still due Sol oky under the Commi ssion’s awar d. ¶ 15 After pay

ing approximately $250,000 to Soloky
, the Fund notified Wells of its belief that Wells’ claim ag ainst the Fund was subject to a $300,000 cap, which the Fund antici p ated would soon be rea ched. Th e F u n d in d ic ated that once the $300,000 maxi mum was exhausted, it would cea se making pay ments toward the Soloky awa rd and that arr ang ements neede d to b e made to transfe r responsibility for the matter to some other person or entity

. Sever al months later, the Fund did as it advised Wells it planned to do and stopped the pay ments to Soloky

. Since that time, Wells has undertaken direc t financ ial responsibility for pay ment of Soloky ’s worke rs’ compensa tion a war d. Wells estim ates that by 2010, when this litigation

commence d, this additional sum ex cee ded half a million doll ars. ¶ 16 Section 537.2 of t he I llinois I nsuranc e Code (215 I L CS 5/537.2 (West 2010)) impos es

cer tain qualifica tions and limit ations on the Fund’ s obligations, even wher e, as here
, a claim is cover ed. Among those is that wher e an order of liquidation was enter ed on or afte r J anuar y 1, 1988, and bef

ore January

1, 2011, the Fund’ s obliga tion shall not ex cee d $300,000. 215 I L CS 5/537.2 (West 2010). I t is this provision which is the basis for the Fund’ s re fu s al t o continue pay

ments relate d to Soloky ’s worke rs’ c ompensation awa rd. ¶ 17 Althou gh W el l s i s o n ce ag ain paying the Soloky awa rd direc tly
, as it did befor e the
rete ntion limit was rea ched, it has continued to dispute the Fund’ s asser tion that the Fund’ s financ ial obliga tions with respe ct to the claims rela ted to Soloky which wer e left unpaid afte r Home I nsuranc e was liquidated are subject t o the fore g oing sta tutory $300,000 cap. Wells
arg ues that the law contains an express exception to the cap for “any worke rs compensa tion claims” (215 I L CS 5/537.2 (West 2010)) and asser ts that the claims left unpaid under its

excess cover ag e worke rs’ compensa tion policies when Home Insuranc e dissolved constitute such “worker s compensa tion claims.” I n Wells’ view, the exception to the statutory cap is there fore applicable

. ¶ 18 The Fund reje cted Wells’ interpre tation of the law and ref used to make further pay

ments. Wells there fore co mmenced this action for decla ratory judgme nt ag ainst the Fund in the

-5-circ uit court of Cook County pursuant to section 2-701 of the Code of Civil Procedur e (735

I L CS 5/2-701 (West 2010)). Wells’ complaint reque sted a deter mination that the $300,000
cap set forth in section 537.2 of the I nsuranc e Cod e d i d n o t an d does not apply under the circ umstance of t h i s case , that the Fund improperly terminated pay ments for Soloky ’s worke rs’ compensa

tion awa rd once the statutory cap wa s re ached, that the Fund is and

rema ins liable for any claims left unpaid when Home I nsuranc e was liquidated, and that the Fund should reimburse Wells for the sums it was require d to pay toward Soloky ’s worke rs’
compensa tion awar d afte r the F und cea sed pay ment. ¶ 19 The Fund moved to di s m i s s p ursuant to section 2-615 of the Code of Civil Procedur e (735 I L CS 5/2-615 (West 2010)). I t did not dispute Wells’ version of t h e fa ct s , n o r did it challeng e the lega l sufficienc y of Wells’ complaint for de clar atory relief . Rather, it ar g ued that Wells’ co n s t ru cti on of t he I nsuranc e C ode was err oneous, t hat t he $300,000 cap does apply here , and that Wells’ cause of ac tion should t here fore fail on the mer its. ¶ 20 Wells responde d that the Fund’ s motion was proce durally improper. The Fund, in tur n, arg ued that a motion to dismiss under section 2-615 is an ap p ro p ri ate mecha nism for disposing of an action for decla ratory relief o n the merits. The circ uit court subsequently decide d that the Fund’ s motion would be trea ted as a motion for summary judgme nt. Wells replied to it as such a

nd filed its own cross-motion for summar y judgme nt. ¶ 21 A hear ing on the p arties’ cross-motions was conducte d by the circ uit court. Supplemental briefing followed, afte r which the court enter ed a detailed and well-re asoned written order

. After setting forth the fac ts and examining the applicable law, t h e co u rt concluded that Wells’ claim under it s worke rs’ compensation excess cover ag e policy fell within the plain meaning of “any worke rs compensa tion claims” under section 537.2 of the I nsuranc e Code and was there fore exempt from the $300,000 cap limit ing the Fund’ s obligations under other ty pes of policies. Acc ording ly
, it denied the Fund’ s motion for summary judgme nt, g rante d
summary judgme nt in favor of Wells and conclude d that the Fund had improperly terminated its pay ment of benef

its owed t o S oloky pursuant to the awa rd g rante d by the Workers’ Compensation Commission; that the Fund is liable for all sums Wells paid to Soloky or on her behalf pursuant to her wo rk ers’ compensa tion awa rd following Home I nsuranc e’s liquidation and must reimburse Wells for t h o s e am o unts; and that the Fund “continues to

owe benef

its to Soloky pursuant to the Worker’s Compensation Commi ssion’s Awar d subject to the Gua

ranty Fund Ac t.” ¶ 22 The Fund appea led. As in the trial court, the Fund took no issue with the fac ts as asser ted by Wells. I ts argument was simply that the circ uit court err ed in concluding that Wells’ claim for cov er age under its excess worke rs’ compensa tion policies with Home I nsuranc e with
respe ct to Soloky ’s worke rs’ compensa tion awa rd qualified as “any worke rs’ compensa tion claim” within the meaning of section 537.2 of the I nsuranc e Code. I n the Fund’ s view, that
term is applicable only to claims for worke rs’ compensa tion benef its fi l ed b y an i njured employ ee. Be cause Wells’ claim here did not meet that definition, t h e Fu n d argued that section 537.2’s exemption is inapplicable, that its obliga tio n t o m ake pay

ments following Home I nsuranc e’s liquidat i on has now been fully exhausted, and that summary judgme nt should theref

ore ha ve bee n enter ed in its favor a nd ag ainst Wells.

-6-¶ 23 The a ppellate c ourt reje cted the F und’s interpre tation of the l aw a nd aff irmed. 2012 I L App (1st) 111533. This appe al to our cour t followed. I ll. S. C t. R. 315 (eff. July 1, 2013).

¶ 24 ANAL YSI S ¶ 25 I n undertak i n g o u r re v i ew, we beg in by noting that while the dispute befor e us was trig g ere d by the work-r elated injury of an employ ee who worke d for an employ er which had elec ted to bring itself within the cover ag e of the W o rkers’ Compensation Act (820 I L CS 305/1 et seq. (West 2010)), this is not a worke rs’ compensa ti o n ca s e. There is no d i s agr ee ment as to the meaning of the Workers’ Compensation Act or its applicability t o Soloky
, the employ ee who was injured. Soloky ’s entitlement to benef its was decide d when she filed her claim und er t h e Ac t with the Workers’ Compensation Commi ssion and the Commi ssion entere d an aw ard in he r favor. ¶ 26 The matter befor e us here involves the separ ate and distinct question of how the financ ial burden of paying Soloky ’s awa rd will be distributed. Be cause Soloky ’s employ er elec ted to purcha se insurance to help meet its obliga tions under the Workers’ Compensation Act, as the Act permitted, and tha t cover ag e wa s in effe ct when Soloky was injured, r esolution of this question turns on issues of insurance law. Be cause t he company providing cover ag e to Soloky ’s employ er for her worke rs’ compensa tion awa rd was a member of the Fund and was liquidated befor e meeting its obligations under the policies it had issued, the dispositi ve issue of insurance law in this case is the scope of the Fund’ s obligations under the I nsuranc e Code. ¶ 27 The case was decide d by the circ uit court on cr o s s -m o t i ons for summary judgme nt. Summary judgme nt is proper when “the pleading s, depositions, and admission s o n fi le, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” 735 I L CS 5/2-1005(c) (West 2010). We revie w the circ uit court ’s g rant of summary judgme nt de novo

. De novo revie w is also appropr iate beca use the case turns on the construction of p ro v i s i o n s of the I nsuranc e Code, a

nd statutory

construction pre sents a question of law. See Pielet v. Pie let
, 2012 I L112064, ¶ 30. ¶ 28 When construing a statute, our primary objective is to g ive eff ect to the l egi s l at u re’s intent. The best indication of leg islative intent is the statutory lang uag e. W ilkins v. W

illiams
, 2013 I L 114310, ¶ 14. L eg islative intent ma y also be asce rtained by considering the rea son

an d n ec es s ity for the law, the evils to be reme died, and the objects and purposes to be obtained. Carter v. SSC Odin Operating Co. , 2012 I L113204, ¶ 37. ¶ 29 Every state has established an insurance g uara n t y fu n d to protec t policy holders in the
event that an insurance company become s insolvent. Hasemann v. W hite
, 177 I ll. 2d 414, 417 (1997). Ours is the I llinois I nsuranc e Guar anty Fund (the Fund)

. This court has descr ibed the Fund as “a nonprofit entity cr ea t ed to protec t policy holders of insolvent insurers and third parties making c la im s under policies issued by insurers that become insolvent.” Id. at 415-16. I ts purpose is
“ ‘to place claimants in the same position that they would have been in if the liability insurer had not become insolvent.’ Lucas v. Illinois Insurance Guaranty Fund
, 52 I ll. Ap p. 3d 237, 239, 367 N.E.2d 469, 471 (1977). The Fund is not a coll at er al o r

-7-independe nt source of re co v ery ; rathe r, it is a substitut ion when the expected

cover ag e cea ses to exis t. Lucas
, 52 I ll. App. 3d at 240, 367 N.E.2d at 471.” Gines v. Ivy , 358 I ll. App. 3d 607, 609 (2005). ¶ 30 W h en an i nsuranc e company is liquidated, the Fund steps into its shoes. I nd ee d
, t h e I nsuranc e Code provides that “[t] he Fund shall be d ee m ed t h e insolvent company to the

ex t en t of t he Fund’s obl igation for covere d claims and to such ex tent shall have all rig hts, duties, and obliga tions of the insolvent company , subject to the limit ations provided in this Article, a s if the company had not bec ome insolvent.” 215 I L CS 5/ 537.4 (West 2010). ¶ 31 Be cause the Fund serve s as a substitut e for the defunc t insurer, an insured party can never

rec over more from the Fund than it would have been e ntitled to rece ive under the policy it orig inally purcha sed from its defunc t insurer. Section 537.2 of the I nsuranc e Code expressly
states that “[i] n no event shall the Fund be obligated *** in an amount in excess of the fac e amount of the policy from which the claim arises.” 215 I L CS 5/537.2 (West 2010). I n some circ umstances, howeve r, an insured party may be forc ed to acc ept less than would have been due under the policy issued by a defunc t insurer. That is so beca use, as we have alre ady discussed, the I nsuranc e Code caps the Fund’ s obligation to pay a cover ed claim at $300,000 wher e the order liquidating the insured’s car rier was enter ed on or afte r J anuar y 1, 1988, and befor e January

1, 2011. 215 I L CS 5/ 537.2 (West 2010). ¶ 32 The statutory limit ation contains an importa n t ex ce p t i o n

. I t d o es not apply to “any worke rs compensa tion claims.” 215 I L CS 5/537.2 (West 2010). For purp o s es of this provision of t he C ode, “a ny worke rs compensation claims” means, of course, any cove red worke rs’ compensation claims. I t must mean that beca use the statutory obliga

tions of the Fu n d as s et forth in section 537.2 of the I nsuranc e Code (215 I L CS 5/537.2 (West 2010 )) perta in only to “cove red claims” as define d b y s ec tion 534.3(a) of the Code (215 I L CS 5/534.3(a) (West 2010)). I f a worke rs’ compensa tion claim failed to meet the threshold statutory definition of a “cove red claim,” the oblig ations of t he Fund would not come into play

. ¶ 33 Section 534.3(a) define s “cove red claim” as “an unpaid claim for a loss arising out of and within the cover ag e of an insurance p o l i cy ” to which this portion of the I nsuranc e Code applies and which is in forc e at the t ime of t he oc cu rr en ce g iving rise to the unpaid claim. 215 I L CS 5/534.3(a) (West 2010). For purposes of the Fund, a cover ed wo rker s’
compensa t i o n cl aim is there fore an unpaid claim for a loss “ar ising out of and within the

cover ag e of” a worke rs’ compensa tion in s u r a n c e policy to which this portion of the I nsuranc e Cod e ap p l i es and which is in forc e at the time of the occur renc e g iving rise to the unpaid claim. ¶ 34 I n this case , th er e is no question that the amounts owed by Home I nsuranc e under the policies purcha sed by Wells which wer e left unpaid when Home I nsuranc e beca me insolvent and wa s liquidated qualified as “cove red claims” within the meaning of section 534.3(a) (215 I L CS 5/534.3(a) (West 2010)) and wer e there fore within the Fund’ s protec tion under section 537.2 of the Code (215 I L CS 5/ 537.2 (West 2010)). More over, it is indisputable that these

cover ed claims arose out of and wer e within the cover ag e of policies which had been purcha sed to help insure Wells ag ainst liability for wor kers’ compensa tion awar ds g rante d

-8-by the I ndustrial Commi ssion pursuant to the Workers’ Compensation Act (820 I L CS 305/1

et seq. (West 2 0 1 0 )). The claims there fore qualified as cover ed worke rs’ compensa tion claims for purposes of sec t i o n 537.2. Be cause cover ed worke rs’ compensa tion claims are exempt from section 537.2’s $300,000 cap on the Fund’ s liability
, the cap is inapplicable in this case. ¶ 35 Her e, as it did below, the Fund attempts to avoid this conclusion by arguing the statutory ref eren ce to “any worke rs compensa tion claims” embra ces only claims for worke rs’
compensa tion be nefits broug ht dir ectly by injured employ ees. This contention is untenable and was proper ly reje cted by the lower courts. As we have just discuss ed
, the only claims protec ted by the Fund are “cove red claims” which, by definition, are cl ai m s ar i s i ng out of insurance policies subject to this portion of the I nsuranc e Code. In worke rs’ c ompensation

case s, claims for benef

its by injured employ ees arise under the Workers’ Compensation Act,
not policies of insurance
, and are made to the Workers’ Compensation Commi ssion, not the employ er or the employ er’ s insurer. See 26 I ll. J ur. W orkers’ Compensation § 6:04 (2004). I f succe ssful, the claims result in awa rds by the Commi ssion, and it is those awa rds that the employ er must pay direc tly
, throug h insurance
, or throug h a combination of those methods. An injured e mploy ee’ s administrative claim for statutory benef its from the Commis sion is there fore entirely separ ate and distinct from the ty pe of insurance claim t o wh i ch sections 534.3(a) and 537.2 of the Code ref er. ¶ 36 Although Wells’ policy from Ho m e I n s u ra n ce p rovi ded excess rathe r than primary

cover ag e for Wells’ liability under the Workers’ Compensation Act, that distinction is of no conseque nce for purposes of this a ppeal. As discussed ear lier in this opinion, the Workers’ Compensation Act rec og nize s t h at empl oy ers may secur e their obligation to pay the
compens at i o n fo r which the Act provides in a varie ty of way s and ref ere nces both excess liability insurance poli cies (820 I L CS 305/4(a)( 2) (West 2010)) as well as policies which provide cover ag e for all of the pay ments for which an employ er is liable under the Act (820 I L CS 305/4(a)( 3) (West 2010)). Whil e it is true that these two ty pes of policies may operate differ ently
, the rec ord in this case indicates that once the $200,000 rete ntion limit was

rea ched, Home I nsuranc e proce ssed the amounts due wi t h re spect to Soloky ’s worke rs’
compensa tion awa

rd by using a third-par

ty administrator and making pay ments direc tly to S o l o k y , the same proce dure normally employ ed wher e a worke rs’ compensa tion poli cy provides primar

y cover ag e. ¶ 37 Even in situations wher e an excess car rier reimburse s the employ er for pay ments due an i njured employ er under a worke rs’ compensa tion awa rd rathe r than paying the injur ed employ ee directly
, the di ffe renc e is one of mecha nics, not substance. Whether coverag e is considere d primary or excess and whether pay ment due under a policy is made direc tly to the injured employ ee or

as re imbursement to the employ er for pay ments it made to the injured employ ee, the fac t remains that it is alway s the employ er w ho has purcha sed the cover ag e. The purpose of the cove rag e is alwa y s the same: to help the e mploy er se cure its oblig ation
to pay the compensation awa rded to its injured employ ees by th e W orker s’ C ompensation Commi ssion. And leg al liability for paying the Commi ssion’s a war d is a lway s unchang ed. I t rema ins with the employ er. Whenever and howeve r a worke rs’ compensa tion car rier pay s benef its pursuant to an insurance policy it has iss u ed
, i t i s pay ing those benef

its on the

-9-employ er’ s behalf

. See I llinois Workers’ Compensation C o m mission, Handbook on Work e r s ’ Co mp e n s a

ti o n a n d Occ upational Disease s 4 (2013). By statute, an insurance car rier

can only be held primarily liable for p ay ing an injured employ ee under limit ed circ umstances. See 820 I L CS 305/4(g ) (West 2010). I n setting forth those circ umstances, the law makes no ref

ere nce to and does not dif fer entiate betwee n primary and excess cover ag e p o l i ci es. For purposes of the Fund, both are there fore proper ly reg arde d as worke rs’
compensa tion insurance police s. ¶ 38 Nothing in t h e t er m s o f t h e Workers’ Compensation Act or the law g overning the I nsuranc e Guaranty Fund pr ovides any basis for r eac hing a

contra ry conclusion, i.e. , that a policy cannot be deeme d to provide worke rs’ compensa tion cover ag e simply becau s e t he

cover ag e it aff

ords is excess rathe r th an primary

. To say that a policy must provide full

cover ag e in o rd er t o qualify as a worke rs’ compensation insurance policy would there fore require that we depar

t from the plain lang uag e of the law and rea d into it exceptions, limit ations or conditions which the leg islature did not express. That, of course , is something
we may not do. People e

x rel. Madigan v . Kinzer , 232 I ll. 2d 179, 184-85 (2009). ¶ 39 Something else we may not do is c onstrue a statute in a way that would y ield absurd or unjust results. Townshi

p of Jubilee v. State of Illinois
, 2011 I L 111447
, ¶ 3 6

. Bu t t h at is
prec isely what would happen if we in t er p re t ed the law to mean that the only worke rs’
compensa tion policies exempt from the $300,000 statutory cap are those providing primary

cover ag e. I f that wer e how the law worke d, an employ er who elec ted to secur e its worke rs’
compensa tion obliga tions by purcha s i n g a primary cover ag e policy but with a larg e deductible could rec eive pay ments from the Fund without limit ation afte r its insurer beca me insolvent, while an identical employ er who purcha sed an excess policy from the very same insurer with a reta ined liability limit identical to the first employ er’ s deductible would have
to bear the full burden of worke rs’ compensa tion costs once the $300,000 cap was rea ched. I n other words, we would have a si t u at i on wher e identical employ ers purcha se insurance policies from the identical insurer to help cover the same ty pe of los s

— wo rk ers’
compensa tion obliga tions—above the identical loss threshold, y et one would enjoy the full protec tion of the Fund a

nd the other w ould not. ¶ 40 S u ch an anomaly cannot be justified based on differ entials betwee n premiums paid by employ ers who elec t to purcha se primary worke rs’ compensa ti on cover ag e and premiums paid by those who elect to secur e their work er s ’ co mpensation obligations throug h excess

cover ag e policies. F or one thing , there is no evidence in the rec ord bef ore us r eg arding the exis tence of such differ entials or how signific ant they may be. Many fac tors af fe ct the premiums char g ed by insurers, and it c ould be that a policy providing excess cover ag e will

ac t u al ly be compar able in cost to a policy providing primary cover ag e wher e the los s rete ntion amount and the deductible amounts in the respe ctive policies are the same. But
ag ain, t his rec ord i s silent on the m atter and we c an n o t found our interpre tation of t he law on specula tion. ¶ 41 Even if we acc epted, for the sake of arg ument, that excess cover ag e policies are normally less expensive than primary cover ag e policies, that still would not alter our conclusion. For purposes of this case , any differ ence in premiums paid i s significan t o n l y if (1) employ ers who pay lower premiums fo r excess cover ag e rec eive disproportionately better trea tment

-10-under the l aw when their insurance car riers are liquidated than employ ers who pay highe r premiums for primary cover ag e, and (2) the I nsuranc e Guar anty Fund is there by left having
to pay out more than a liquidated member itself would have had to pay u n d er a particula r policy and to make such pay ments using resour ces for which it has not obtained and cannot obtain funding , leaving it unable to meet its statutory obligations. B ut none of these thing s actua lly happens. The Fund is structure d so that insureds purcha sing cover ag e to meet their obliga tions under the Workers’ Compensation Act rec eive just what they paid for, no more and no less, and so that the Fund itself will be able to collect whateve r monies are nece ssary to provide that protec tion. ¶ 42 Starting with the last point, which perta ins to burdens on the Fund, it is important to ke ep in mind that it is not insureds who fund the I nsuranc e Guar anty Fund. As explained ear lier, Fund members do. Home I nsuranc e was, i tself, a member of the Fund. The statutory assessments it was re quired to make while it wa s still doing business in I llinois helped pay claims which would otherwise have g one unpaid when other members of the Fund beca me insolvent. Now that Home I nsuranc e has become insolvent, it is entirely fair and appropr iate that the ot her members of the F und now contribute towa rd pay ing the claims which Home I nsuranc e lef

t unpaid, and that they

do so to the full ext ent spec ified by the law. ¶ 43 There is no basis whateve r for conce rn that this will place an undue burden on the Fund’ s

resour ces. The assessments which e ach F und member must pay is based on the proportion that the particula

r member’ s net direc t written premiums for the prec eding y ear bear s to the total net direc t written premiums of all the member companies for the prec eding y ear on the kinds of insurance in that acc ount (auto or other). Although the law include s a limit on t he
amount any g iven member must pay in a particula r y ear , if the total assessment in an acc ount (auto or other) toge ther with th e o t h er assets in the particula r acc ount are not sufficie nt to meet that acc ount’s obliga tions for the y ear in question, t h e o b l i gati on is not exti ng uished

or reduc ed. Pay

ment is simply delay ed until funds become av ai l ab l e. 215 I L CS 5/537.6 (West 2010)

. Under this sy stem, the Fund is assure d that it will ul timately rec over a ny and all amounts it must pay out unde r the law to me et the obligations of its insolvent members,
reg ardle ss of the ty

pe of risk or scope of co v er age provided by the insolvent members’ policies. ¶ 44 There is likewise no merit to th e ar gu m en t that differ entiating betwee n primary and

excess cover ag e policies is nece ssary to preve nt employ ers from attempting to g et more than they barg ained for and subverting the purposes for which the Fund was cre ated. To the extent

an employ er rec eives a price brea k from his worke rs’ compensa tion car rier by purcha sing an

excess cover ag e policy
, it is beca use the employ er is g etting les s i n return. Until the loss
rete ntion level is met, the burden of paying the worke rs’ compensa tion awa rd wi l l be the employ er’ s alone. The insurer will owe nothing. Our construction of the Insuranc e Code does not chang e this in any

way

. ¶ 45 I f the insurer under an excess cover ag e policy become s insolvent befor e the loss r etention threshold is rea ched and the policy provisions have there fore not y et been trig g ere d, the Fund will not y et owe any

thing. The employ er will continue to make pay ments. I t is only when the

cover ag e threshold is rea ched and the excess cover ag e policy would otherwise have kicked in under the te rms of the policy that the Fund’ s obliga tion would commence.

-11-¶ 46 Moreove r, this obliga tion is not o p en -e n d ed

. An i nsured will never rec eive any more from t h e Fu n d than it barg ained and paid for throug h its now-liquidated insurer. I t cannot

rec eive more, for the law expressly provides that “[i] n no event shall the Fund be obligated *** in an amount in excess of t he fa ce a mount of the pol icy from which the claim arises.” 215 I L CS 5/537.2 (West 2010). As a result, the obligations owed by the Fund under the
statute as a result of th e ex ce s s carrier ’s liquidation will end when the excess car rier’ s

o bligation would have ended under the policy it issued to its insured. At that p o i n t , t h e financ ial burden for addre ssing the loss will reve rt back to the insured. Windfalls to insured employ ers a

re the ref ore a n impossibi lity

. ¶ 47 Had Home I n s u ra n ce n o t b ec o m e i n solvent, there is no dispute that the worke rs’
compensa tion e x cess c overa g e policy it issued to Wells would have require d it to continue making pay

ments bey ond the $300,000 l ev el. Requiring the Fund to continue making
pay ments under the circ umstances prese nt here there fore does nothing more than place Wells in exactly the same position it would have been in ha d Home Insuranc e not be en subject to

an order of liquidation, g iving it no more and no less than the benef it of its orig inal barg ain and enabling it to avoid what would otherwise be a substantial financ ial loss, namely
, having
to pay out of pocket for the same worke rs’ compensa tion expenses the now worthless Home I nsuranc e policy

should have c overe d. When the Genera l Assembly descr ibed the purpose of the law as being “to avoid financ ial loss to claimants or policy holders beca

use of the entry of an Orde r of L iquidation ag ainst an ins olvent company ” (215 I L CS 5/532 (We st 2010)), this is s urely

exactly what it had in mind.

¶ 48 CONCL USI ON ¶ 49 For the fore g oing rea sons, the circ uit and appellate courts wer e corr ect when they ruled that the Fund acte d improperly when it invoked the $300,000 cap set forth in se ction 537.2 of the I nsuranc e Code (215 I L CS 5/537.2 (West 2010)) to terminate pay ments t o cover Wells’ liability for the amounts still due and unpaid under Soloky ’s worke rs’ compensa tion

awa rd following liquidation of Wells’ worke rs’ compensa tion car rier. Be cause the pay

ments at issue ar e for

a cove red w orker s’ compensation claim within the m eaning of the re levant statutory p ro v i s ions, the $300,000 statutory cap is inapplicable. The judgme nt of the appellate court, which aff

irmed entry of summary judgme nt in favor of Wells and ag ainst the Fund, is there fore aff

irmed.

¶ 50 Affir

med.

¶ 51 CHI EF JUSTI CE KI L BRI DE, dissenting : ¶ 52 I respe ctfully dissent from the majority opinion. The answe r to the critica l question here
, namely
, wheth er the self-insure d employ er’ s claim ag ainst its insolvent excess-insuranc e

car rier constitutes “any worke rs compensa tion claim[ ],” lies not in the transfor mation of the question or in the use of a more intui t i ve approa ch to statutory construction. I nstead, the

answe r is found in the measure d application of our traditional rules of statutory construction to the plain lang uag e of the Code and the r eleva nt insurance policies.

-12-¶ 53 Whil e the majority ’s ex t en d ed d i s cussion of the broad nuts and bolts of the worke rs’

compensa tion sy stem and the fac ts underly i n g t h e injured worke r’s rec eipt of benef its is intellectually enric hing, it is not an adequate substitut e for the application of o u r formal
approa ch to statutory construction. I ndeed, the majority ’s detailed discussion, along with
statements on the standard of revie w, the objective of statutory construction, and other issues
not in dispute, constitute nearly half of its opinion. The novelty of the majority ’s appr oach is evident from the conspicuous absenc e of the usual indicia of traditional statutory or policy construction. ¶ 54 The proper resolution of this appea l demands a straig htforwa rd analy sis of the lang uag e in the Code and the excess-insuranc e poli ci es. I f Wells’ claim, as define d by the policies, falls wit hin the s cope of the phrase “a ny worke rs compensation claims” as used i n section 537.2 of the Code (215 I L CS 5/537.2 (West 2010)), then the F und’s pay ment obliga tion is
not cappe d. I f i t does not
, then t he Fund proper ly cappe d its paym en t s at $ 3 00,000. On i ts fac e, this court’s mission is as simple as that. Yet, the majority opinion doubles down on that simpli city by d ec lining to perf orm any of the inhere ntly more complex tasks of statutory construction re quired. ¶ 55 I nstead, the majority quickly conclude s, only a few pag es into its analy sis, that the Fund’ s cap is inapplica

ble. I ts analy

tical basis to that point boils down to: (1) Wells’ unpa id c laims a g ainst Home wer e “cove red c laims” under the Act, a fac t not disput ed by

either pa rty ; (2) those claims arose out of the excess insurance policies issued to Wells to help insure it ag ainst worke rs’ compensa tion liability
, a fac t t h e m aj o ri ty deems “indisputable”; followe d by ( 3 ) it s c o n c lu s io n th a

t We lls’ claims “qualifie d as cover ed worke rs’ compens a ti o n claims for purposes of section 537.2,” making the Act’s $300,000 cap inapplicable. Supra ¶ 34. ¶ 56 The majority ’s conclusion is un ai d ed b y co n sideration of the policy lang uag e, instead eff ectively relying on the s ummary asser tion that the pol icies “had been purchase d to help insure Wells ag ainst liabili ty for worke rs’ compensa tion awa rds.” (Emphasis added.) Supra ¶ 34. ¶ 57 Moreove r, the majority rec og nizes that an insurer pay s benef its on behalf of the insured employ er ( supra ¶ 37), y et it fails to rec og nize the rea son why the insurer makes any pay ments at all, i.e.
, to fulfill its duties under the terms of the policy

. An insurer pay s worke rs’ compensa

tion benef

its only because it is contractually liable to the employe r to make those payme nts . Wit h that in mind, it is easy to unde rstand why the statute “doe s not differ entiate betwee n primary and excess cove rag e policies” ( supra ¶ 37): it is beca use the language of each policy already dictates the insurer’s payme nt liabili ty that will be passed along to the Fund. The Code need no t distinguish betwee n the two ty pes of policies when

eac h policy ’s terms alr eady do just that. ¶ 58 C o n s eq u en t l y , ev en t h o u gh t h e m ajorit y believes it is “indisputable” that Home

u ndertook the contra ctual duty to help pay Wells’ worke rs’ compensa tion liabili t y ( s u p r a ¶ 34), that belief is not based on the actua l policy lang uag e ag ree d to by the parties. I nstead,

-13-that conclusio n a r is e s f r o m th e e r r oneous presumption that the excess insurance policies wer e i ntended to fulfill Wells’ statutory obligation to pay benef its under the W o rk er s ’ Compensation Act. Supra ¶ 3 4

. He re , the majority is eff ectively answe ring the ultimate question pending without the benef it of any linguistic ana ly sis. ¶ 59 I f the majority ’s trunca ted approa ch is corr ect, t h e o p i n i o n co u l d simply end with its intuited statement that Wells’ policies are for worke rs’ compensa tion li ab i l ity cover ag e. Supra ¶ 34. Whil e the majority appea rs comforta

ble in rely ing on the simpli city of this bare

asser tion to resolve the instant appea l, I respe ctfully reje ct that approa ch and opt for a more

rea soned, tr ad i tional one. Although the majority ’s shorthand may provide a convenie nt means of avoiding this inhere ntly more complex task, simply decla ring that Wells’ claims

are worke rs’ co m p ensation claims does not make it so. Nothing can repla ce the tried and true, albeit sometimes arduous, application of our rules of construction. Alth oug h the majority ’s position “is alluring in its simpli city
, as applied it fails to adequately g ive meaning
to the intent of the languag e of the p o l i ci es at issue and fails to take into acc ount the rela tionship betwee n a primary and an excess car rier.” Roberts v. Northland Insurance Co.
, 185 I ll. 2d 262, 275 (1998) (F ree man, C.J
., concur ring in part and dissenting in part, joined by Miller and McMor

row, JJ .). ¶ 60 I n m y v i ew , t h e key to the resolution of this appea l is the nature of Wells’ “co v er ed claim” beca

use section 537.2 limit s the Fund’ s pay ment obligation to $300,000 “except that this limit ation shall not apply to any workers compe nsation claims .” (Emphasis added.) 215 I L CS 5/537.2 (West 2010)

. To deter mine whether the ca

p applies, the court must c are fully examine two critica l c omponents, the statutory lang uag e adopted by the leg islature and the policy lang uag e ag ree d to by the partie s

. That cruc ial languag e, howeve r, makes only incidental appea

ranc es in the majority ’s discussion. That same lang uag e provides the focus for my dissent. ¶ 61 As the majority corr ectly notes, it is undisputed that Wells’ c laim is a “cove red c laim.” Supra ¶ 34. The plain lang uag e of the Code bear s out that conclusion. A “cove red claim” is define d in releva

nt part as:

“ an unpaid claim f

or a loss arisi ng out of and wi thin the cove rage of an insurance policy to which this Article applies and which is in forc e at the time of the occur renc e gi v i n g rise to the unpaid claim, *** made by a person insured under such polic y ***[.] ” (Empha ses adde d.) 215 I L CS 5/ 534.3 (West 2010).
Her e, Wells has prese nted a “cove red claim” beca use it is “an unpaid claim” filed by Wells,

an I llinois resident and “insured person” under its policies with Home, an insurance company that beca me insolvent. See 215 I L CS 5/ 534.3 (West 2010). ¶ 62 I n turn, the deter mination o f wh et h er W el l s ’ co v er ed cl ai m is also a wor kers’
compensa tion claim wit hin the m eaningof the statutory exception to the Fund’s $300,000
pay ment cap relies on the inte ra ct i on betwee n Code sections 537.2 and 534.3. I n rele vant part, sec tion 537.2 states: “The Fund shall be obligated to the extent of the cove red claims exis ting prior to the entry of an Order of L iquidation ag ainst an ins olvent company *** and if the e ntry of an Orde r of L iquidation oc curs on or afte r J anuar y 1, 1988 and befor e J anuar y 1,

-14-2011, such obliga tions shall not: (i) exceed $300,000, except that this limit ation shall not apply to any workers com pensation claims ***.” (Empha ses adde d.) 215 I L CS 5/537.2 (West 2010). ¶ 63 Despite the focus of this case nece ssarily being the nature of Wells’ “cla im,” the majority chooses instead to shift its focus to the “cove rag e” Wells alleg edly purcha sed and awa y from the actua l “cla im” it is making

. Supra ¶¶ 36-43. By straying from the prec ise lang uag e in the
statute and d ec lining to revie w the policy terms, the majority inadver tently distorts the question befor e this court and ignor es the signific ance of the leg islature’s key word: “cla im.” ¶ 64 L ooked at as a whole, this case loosely involves two distinc t “c l ai m s

. ” The first is the injured worke r’s claim for compensa tion awa rded ag ainst Wells, her former employ er. That claim is based strictly on Wells’ statutory liability under the Act. The second is Wells’ claim under its insurance policies with Home; that claim is pr emised solely on Home’s brea ch of its duty under those policie s after its insol vency

. ¶ 65 By d ef

i n i t i on, the injured worke r’s orig inal claim ag ai n s t W el l s i s a wo rk er s ’

com p en s at i o n claim. That, howeve r, is clea rly not the claim at issue in this case

. To constitute a “cove red claim,” Wells’ “loss” must be “ar ising out of and within the cover ag e of an insurance policy to which this Article applies.” Her e, the injured worke r’s claim ag ainst Wells is purely statutory and does not arise out of any insurance policy

. The only “unpaid claim” rai s ed must be “for a loss arising out of and within” the excess-insuranc e policies issued to Wells, “a person insured under such polic[i es],” by Home. See 215 I L CS 5/534.3 (West 2010) (def

ining a “cove red claim”)

. Thus, the only possible “cove red claim” is Wells’
contra ctual insuranc e cla im ag ainst Home. ¶ 66 Once Home beca me insolvent, section 537.4 of the Code define d the Fund’ s obliga tion
to undertake its responsibilities, stating that the Fu n d “shall be deeme d the insolvent
company *** and *** shall have all rights, duties, and obligations of the insolvent company *** as if the company had not become insolvent.” (Emphasis added.) 215 I L C S 5/537.4 (West 2010). Thus, that section li mits the Fund’s duties to the contractual responsibiliti es Homes bore under its policies
, making Wells’ “cla ims” against the Fund the same contra ctual “c laims” it possessed ag ainst Home. ¶ 67 T h e n ex t s t ep i s t o i d en tify the fundame ntal nature of Wells’ “cla ims.” That s t ep

nece ssitates a close ex am i n at i on of the policy lang uag e that cre ated Home’s pay ment obliga tions. I f that lang uag e shows the policies wer e intend ed t o satisfy Wells’ statutory liability for its injured employ ee’ s awa rd, then W ells’ claims would be “wor kers
compensa tion claims,” as the majority co n cl u ded. I f it does not reve al that intent, the majority ’s conc lusion necessa rily fails. ¶ 68 Courts must construe lang uag e in an ins uranc e poli cy de novo and apply that lang uag e

as written unless it contravenes public policy

. Roberts
, 185 I ll. 2d at 266. The majority ’s approach by

passes any revie w of the rele vant policy lang uag e and simply conclude s t h at Wells’ claim i s a workers’ compensation claim beca use i ts excess insurance policies wer e essentially liability policies, with any differ ence s arising mere ly in their “mec hanics.” Supra ¶¶ 34, 37. ¶ 69 I roundly disag re e w it h th e ma jo r it y ’ s decision to equate Wells’ excess-insuranc e policies

-15-with a worke rs’ compensa tion claim. The excess-insuranc e policies, howeve r, do not aff ect Wells’ “liability ” for worke rs’ compensa tion benef its; that liability is set b y t he Act and
cannot be the basis for Wells’ covere d claim unless Home contr actua lly assumed that duty under a bono

fide liability cover ag e policy

. See supra ¶ 37 (re cog nizi ng that the leg al liability for pay ing benef

its here rema ins unchang ed). Thus, unlike the majority , Ibelieve a revie w of the policy lang uag e is critica l here

. Be fore my analy sis of Home’s duties under the policy lang uag e, howeve r, a revie w of the intrinsic differ ence s betwee n claims broug ht pursuant to primary liability and excess insuranc e policies is useful. ¶ 70 Primary insurance “is insurance cover ag e in which, un der the terms of the policy , liability attache s immediately upon the happening of the occur renc e that g ives rise to liability .” 44A Am. J ur. 2d Insurance § 1755 (2003). I n contra st, “[e]x cess or secondary coverag e *** is

cover ag e in which, under the terms of the policy
, liability attache s only afte r a prede termined
amount of primary cover ag e has been exhausted.” 44A Am. J ur. 2d Insurance § 1755 (2003). Ex cess insurance provides protec tion ag ainst cata strophic loss and is intended to apply only when hig h levels of liability are prese nt, gr eatly

reduc ing the excess insurer’ s risk. ¶ 71 T h i s co u rt has previously stated that primary liability insurance
, or self-insura nce, i s inhere ntly differ ent fr o m t he excess-insuranc e cover ag e barg ained for by the parties here

. Kajima Construction Servic es, Inc. v. St. Paul Fire & Marine Insurance Co.
, 227 I ll. 2d 102, 116 (2007) (re ly ing on “the clea r distinctions betwee n primary and excess insurance

cover ag e”)

. I n Roberts
, J ustice Fr eema n explained that excess insurance offe rs a secondary level of protec tion that “attac hes only after a prede termined amount of primary insurance or self-insure d rete ntion has been ex h aust ed.” (Emphasis added.) (I nterna l quotation marks omitted.) Kajima
, 227 I ll. 2d at 114-15 (quoting Roberts
, 185 I ll. 2d at 277 (F ree man, C.J
., concur ring in part and dissenting in part, joined by Miller and McMorrow
, J J .), quoting Scott M. Seaman & Charlene Kittredg e, Exc ess Liabil ity Insurance : Law and Liti gation
, 32 Tort & I ns. L .J

. 653, 656 (Spring 1997)). Subsequently
, in Kajima
, this court unanimously found “Just ice F ree man’s separ ate writing in Roberts *** to be par ticularly instructive.” Kajima
, 227 I ll. 2d at 114. ¶ 72 Ac co rd i n gl y , if Wells had purcha sed worke rs’ compensa tion liabili ty cover ag e fr o m Home, as the majority asser ts ( supra ¶ 34), Home would have been contra ctually responsible for making benef

it pay ments to satisfy Wells’ statutory liability under the Act. See 44A Am. J ur. 2d Insurance § 1755 (2003) (explaining that primary insurance “is insurance cover ag e in which, under the t erms of the pol icy
, l i ability attache s immediately upon the happening of the oc curr ence that g ives rise to liability ”). See also In re Claim of National Union Fire Insurance Co. of

Pittsburgh, PA for Bene

fits From the New Jerse

y W orker’ s Compensation Security Fund
, 2008 WL 516290, at *4 (N.J. Super. Ct. App. Div. Fe b. 2 9, 2008) ( per

c u r ia m ) ( c o n c lu d in g th a

t a n e xc ess-insura

nce policy is “not a primary worke rs’ compensa tio n insurance policy
, desig ned for pay ment to injured employ ees” ); Oneida Ltd. v. Utica Mutual Insurance Co.
, 694 N.Y.S.2d 221, 224 (N.Y. App. Div. 1999) (re cog nizi ng that an excessinsurance policy “ ‘i s n o t co nsidered to be workers’ compensation i nsuranc e si nce *** no statutory worke rs’ compensa tion benef its are paid direc tly to an injured employ ee under the

excess policy ’ ”). Under that scena rio, once Ho m e was liquidated, the Fund would have taken over Home’s pay

ment duties, in essenc e becoming an alternat e p ay o r for Home’s

-16-contra ctual obliga tion to satisfy Wells’ statutory liability

. See 215 I L CS 5/537.4 (West 2010) (imposing on the F und “all rights, dut ies, and oblig ations of the insolvent company *** as if th e company had not become insolvent”). Consequently
, Home’s contra ctual pay ment responsibility would have broug ht W el l s ’ cl ai m ag ainst the Fund within the scope of the phrase “any workers compensation claims” in section 537.2, and the Fund’ s $300,000
pay ment cap w ould not apply

. ¶ 73 The lang uag e in both Wel l s ’ i n s u rance policies, howeve r, definitively establishes that they wer e not intended to provide eit h er primary or worke rs’ compensa tion liability

cover ag e. B oth policie s contain provisions making them inapplicable to pa y ments “ar ising
out of the operations *** as respe cts whi ch the I nsured car ries a full cover ag e Workers’ Compensation *** policy .” Thus, the policies would not apply if Wells had insurance for its worke rs’ compensa tion liability
, establishing that the two policies wer e intended to serve as “excess-only .” Telling ly
, both policies are also conditioned on W el l s b eing “qualifie d” or “au thorized” as a self-insure r and its continuation of that status. Obviously
, it would be antithetical for a qualified self-insure r to have p ri m ary liability insurance cover ag e. There fore
, the policy lang uag e rebuts the majority ’s “indisputable” conclusion that the policies wer e intended to provide Wells with worke rs’ compensa tion liability cover ag e ( supra ¶ 34). To the contra ry , by making the business decision to self-insure
, Wells voluntarily assumed the r o le o f p r o v id in g it s o w n e q u iv a lent first-line worke rs’ compensa tion liability cover ag e. ¶ 74 I n an a

tt e mp t to r educe its out-of-poc ket expenses, howeve r, Wells contra cted with Home
to provide excess-insuranc e cover ag e. Wells’ only “cove red claim” is based exclusively on those excess-insuranc e poli cies. S ee 215 I L CS 5/534.3 (West 20 1 0 ) (r equiring a “cove red claim” to be for “a loss arising o ut of and within the cover ag e” of the policies issued by a def u n ct i n surer ). Under its excess-only policies, Home’s contra ctual duty to Wells was considera bly differ ent t han it would have be en under a li ability insurance policy

. Contrary
to the majority ’s asser

tion ( supra ¶ 37), howeve r, this court has expressly rec og nized that the differ ence in those contra ctual duti es i s one of substance, n o t mere mecha nics. I n Kajima
, 227 I ll. 2d at 1 1 6
, we found “cle ar distinctions betwee n primary and excess insurance

cover ag e,” contra dicting the majority ’s position i n t h i s case

. Whil e “the primary policy provides ‘fir s t d o l l ar ’ liability cover ag e up to the limit s of the policy ,” g iving the primary insurer contra ctual fi rst -line responsibility for making benef it pay ments, excess insurance “ ‘attac hes only afte r a prede termined amount of primary insurance or self-insure d rete ntion has been exhausted.’ ” Roberts
, 185 I ll. 2d at 276-77 (F ree man, C.J
., concur ring in part and dissenting in part, joined by Miller and McMorrow
, J J .) (quoting Scott M. Seama n & Charlene Kittredg e, Exc ess Liabil ity Insurance : Law and Liti gation
, 32 Tort & I ns. L .J

. 653, 656 (Spring 1997)); see Kajima , 227 I ll. 2d at 114-15. ¶ 75 Turning back to the lang uag e in Wells’ excess-insuranc e policies, I note th at although the exact lang uag e differ s somewhat, the eff ect is the same. The parties’ “Ag g reg ate Ex cess Workers’ Compensation and Employ ers’ L iability Policy ” was desig ned “[t] o indemnify the I nsured [W ells] for pay

ment, as here inafter define d, in excess of the ‘I nsured’ s Retention.’ ” (Emphasis added.) The policy defines “pay ment” as “the amount the insured shall have

a ctual ly paid : *** for compensa tion and other benef

its required of the Insur ed b y t h e

-17-worke rs’ compensa tion law.” (Emphase s added.) Thus, in the ag g regat e ex cess- insurance

p o l icy
, the parties ag ree d that Home would only “indemnify ” Wells for amounts o v er i t s rete ntion lim it that it “actually paid” a s “re quired of [it as] t he I nsured” by the Act. ¶ 76 Simi larly
, in Wells’ “Specif ic Ex cess Workers’ Compensation and Employ ers’ L iability Policy ,” Home “ag ree [d] to indemnify the I nsured [W ells] ag ainst excess loss, *** which the I nsured may sustain on acc ount of: (a) compensa tion and ot h er b enef its required of the Insured by the W o rk er s ’ Compensation L aw.” (Emphase s added.) Home’s “L imit of L iability ” for indemnification is “only for the ultimate net loss in excess of *** the ‘re tained limit (s)’ ” of $200,000. (Emphasis added.) The term “ultimate net loss ” i s d ef ined in the policy as “the sum actually paid in cash in the settlement or satisfac tion of losses for which the I nsured is liable.” (Emphasis added.) S ummarizing the pa rties’ e x presse d intentions in the specific excess-insuranc e policy
, Home was only oblige d t o “indemnify ” Wells for
amounts over its rete ntion limit that Wells “ac tually paid” “on acc ount of: (a) compensa tion and other benef

its required of the Insured by the Workers’ Compensation L aw.” (Emphasis added.) ¶ 77 Ac co rd i n g t o t h e p ar t i es ’ contra ctual ag ree ment, Wells had to submit a p er i o d i c “st at ement from or on behalf of the I nsured showing eac h pay ment made by the I nsured during such period in excess of the I nsured’ s Retention,” befor e Home would “pr o mptly reimburse the insured for such indemnification as the company is obligated to pay under the
terms of this policy .” The fac t that Home previously used t h e s ervic es of a third-par ty administrator as a matter of convenie nce to make the require d pay ments does not chang e the
nature of its underly ing c ontrac tual duty . See supra ¶ 10. ¶ 78 I n summary , the policy lang uag e makes it indisputably clea r that Home neve r ag ree d to

assume responsibility for paying the worke rs’ compensa tion benef its owed by Wells. I n turn, section 537.4 compels the Fund to undertake only Home’ s contractual duties and obliga tions under its excess-insuranc e policies. Th u s, the Fund’s duty is limited to the contractual indemnification obligation Home undertook in providing the excess insurance

. Simpl y put, the Fund’s d

u t y i s not to pay Wells’ worke rs’ compensa tion liability for it beca use Home

neve r under t o o k that obligation

. I nstead, the policies limit ed Home’s responsibility to indemnify ing Wells for benef its it has alre ady paid out-of-poc ket. The contra ctual duty that

was passed to the Fund was nece ssarily define d solely by those same policy terms. A limit ed
contra ctual duty to make reimbursement for pay ments actua lly made by an ins ured cannot t ra nsform Wells’ “cove red claim” into a “wor kers’ compensa tion claim.” The majority ’s
contra ry conclusion is simply

not supported by

any lang uag e in the insuranc e policies. ¶ 79 Fur

thermore
, the critica l connec tion betwee n the Fund’ s duties and the ty pe of insuranc e purcha sed by Wells is undersc ored by the role available to the injured worke r in the instant l i t i gat ion, a fac tor not addre ssed by the majority

. I f Wells’ cover ed claim wer e in fact a worke rs’ compensa tion liability claim, the worke r would have had a vita l i ntere st in the
outcome of the case becau s e h er continued rec eipt of benef its would be implicated. Acc ording ly
, she would have standing to participa te i n this case

. The injured worker here
, h oweve r, indisputably will continue to rec eive her worke rs’ c o mp e n s a ti o n b e n e f it s r e g a r d le s s of the party that preva ils, demonstrating that she has no interest in the outcome in this matter and lacks standing to participa te. I ndeed, no party has even sug g ested that the injured worke r

-18-could eve r seek rec overy from the Fund, and she has never been involved in this litigation. The injured worke r’s clea r inability to participa te in this case or to demand pay ment from the Fund at any point further proves that Wells’ “c o vere d claim” is not based on worke rs’
compensa tion “liability ” cove rag e it acquir ed fr om Home, as the ma jority posits. ¶ 80 The majority ’s view of section 537.2 would eff ectively allow Wells to shift its ex clusive statutory burden of paying benef its to the Fund by rely

ing on its indemn i t y p o licies with Home. But, the pol icy lang uag e s h o ws t h e parties never intended Home to assume W ells’
pay ment obliga tion, as it would have d o n e under a true worke rs’ compensa tion liability policy

. Moreove r, if the majority ’s asser tion that the differ ence betwe en u n dertaking the burden o f paying an employ er’ s worke rs’ compensa tion liability and reimbursing an employ er who has alre ady fulfilled that statutory duty “is one of mecha nics, not substance” is acc urate , a serious question is raised about why the insurance industry found it nece ssary to cre ate t wo t y

p es o f insurance

. See supra ¶ 37. L og ically
, if the two ty pes of policies differ ed only in their “mec hanics,” insurers would have had no incentive to g o to the expense of cre ating
, marke ting, and administering excess-insuranc e policies. They simply could have sold liability policies. Moreove r, if the two ty pes of policies are essentially the same, as the majority claims, this court’s contra ry statement in Kajima must be incorre ct. Kajima
, 227 I ll. 2d at 116 (expla i n i n g “t he clea r distinctions betwee n primary and excess insurance

cover ag e”)

. I n an attempt to add support to its c onclusion, the majority also corr ectly notes that “it is alway s the employ er who has purcha sed the cover ag e” ( supra ¶ 37), but this truism is merely a re d herr ing. T he identity of the policies’ purcha ser is irre levant to our a naly sis; the nature of the insure d’s claim is the critical f actor

. ¶ 81 Her e, afte r considering the available alternatives, Wells voluntarily cho s e n ot to purcha se worke rs’ compensa tion l i ab i l ity cover ag e that would have oblige d the Fund to act as a substitut e pay or for the unpaid worke rs’ compensa tion cl ai m s rema ining afte r Home was liquidated. Consequently
, neither Home nor the Fund become an alternate pay or for Wells’ statutory liability under the terms of the policies it purcha sed. Be cause Wells’ orig inal claim
ag ainst Home was for indemnification, not worke rs’ compensa tion, the cl ai m it now has
ag ainst the Fund is also only for indemnifica t i o n an d is not “any worke rs compensa tion claim[ ],” capping the Fund’ s pay ment obligation at $300,000. See 215 I L CS 5/537.2 (West 2010). ¶ 82 The majority ’s holding that Wells’ policy claim constitutes a worke rs ’ co m p ensation cl ai m fo r purposes of section 537.2 blurs the clea r distinction this court previously

rec og nized betwee n self-insure d employ ers that obtain excess cover ag e and employ ers that specific ally seek out primary worke rs’ compensa tion liability cover ag e. Kajima
, 227 I ll. 2d
at 116 (re fusing to “evisc era te” the “cle ar distinctions betwee n primary and excess insurance

cover ag e”)

. By opting for primary liabi l i t y co v era g e, employ ers choose to eliminate their obliga tion to pay any worke rs’ compensa tion awa rds out-of-poc ket afte r satisfy ing their deductibl e. I n exchang e for that enhanc ed benef it, they ag ree to pay substantially highe r in s u r a n c e p r e mi u

ms

. Pr im ary liability car

riers char g e highe r premiums than exce s s

- in s u r a n c e

car riers beca use the former acc ept g reater risk. Roberts
, 185 I ll. 2 d at 271. “ ‘[E] x cess premiums are lower beca use excess cover ag e i s , b y i t s very nature , not supposed to be trig g ere d until the underlying policy has been exhausted up to its limit s.’ ” Kajima
, 227 I ll.

-19-2d at 116 (quoting Roberts
, 185 I ll. 2d at 281 (F ree man, C.J
., con cu rr i n g in part and

dissenting in par

t, joined by

Miller and McMor

row, JJ .)). ¶ 83 On the other hand, employ ers may make the business decision either to g o without a ny insurance cover ag e, thus bear ing the full burden of paying all worke rs’ compensa tion claims out-of-poc ket, or, like Wells, to pay all benef its out-of-poc ket up to their high rete ntion limit and purcha se far chea

per excess-insuranc e with indemnity -only cover ag e to addre ss their potential cata strophic liability

. Scot t M

. S ea man & Charlene Kittredg e, Exc ess Liabil ity Insurance : L a w and Liti

gation
, 32 Tort & I ns. L .J

. 653, 656-57 (Spring 1997). The lower risk undertaken by the insurer’ s risk is s imilarly ref lected in its lower excess-insuranc e premiums. 44A Am. J ur. 2 d In s u r a n ce § 1755 (2003). Even though the sparse rec ord on summary judgmen t i n t h i s case does not contain a cost compar ison, the parties confirme d during oral arg

uments befor e this court that excess insurance premiums paid by self-insure d parties are g ener ally substantially lower t h an p ri m ary insurance policy premiums, a fac t ignor ed by

the majority

. ¶ 84 Under the majority ’s construction of the Code, self-insure d employ ers purcha sing e x cess insurance providing only indemnification would rec eive benef its identical to those rec eived by em p loy ers paying much highe r premiums for expensive primary liability cover ag e that
contra ctually off- loads their ultimate out-of-poc ket pay ment responsibility

. That benef it, of

c o u rse, is on top of the signific ant financ ial advanta g e self-insure d employ ers in it ia ll y r e c e iv e fr o m paying far lower insurance premiums. Such an outcome would cre ate a perve rs e incentive by encour ag ing employ ers to esch e w p r im a ry liability cover ag e whene ver possible, while obtaining the same limit s on its out-of-poc ket pay ments by buy ing far chea

per excessonly policies. ¶ 85 By eff

ectively acting as their own primary insurers, howeve r, self-insure rs such as Wells voluntarily choose to undertake a far g reater risk of out-of-poc ket loss than do employ ers that rely on primary liability cover ag e from an outside source

. I f Wells could limit its total out-ofpocket exposure by obtaining far less expensive indemnity -only insurance and then relying

on the Fund for reimbursement bey ond the appl i ca b l e cap, the g reater risk it assumed as a self-insure r would be unte there d from the pr emiums it paid. ¶ 86 C u ri o usly
, J ustice Free man has chosen to depar t in this case from his strong advo ca cy in Roberts for basing parties’ ultimate wor k er s ’ compensa tion liability on the differ ential deg ree of risk intentionally undertaken by the first-line and excess insurers. Roberts
, 185 I ll. 2d at 279 (F ree man, C.J
., concur ring i n p ar t an d dissenting in part, joined by Miller and McMorrow
, J J .). I n Roberts
, J ustice Fr eema n corr ectly rec og nized that policy interpre tations

s h o u l d “give[ ] full eff

ect to the l evel of risk eac h car rier intended t o expose itself to” and noted t hat pl acing a heavier pay ment burden on the ex cess insure r, or the F und as Home’s
surrog ate, rathe r than on the first-line insurer “turns the conce pt of excess co v er age on its head.” Roberts , 185 I ll. 2d at 280, 282 (Fr eema n, C.J
., concur

ring in pa rt and dissenting in
p art, joined by Miller and McMorrow
, J J .). See also Kajima
, 227 I ll. 2d at 114 (find i n g “Just ice F ree man’s sepa

rate writing in Roberts ” to be “ particula rly instructive”)

. ¶ 87 Despite this court’s prior approva l of allocating employ ers’ liability for benef it pay ments

acc ording to the differ ing deg ree s of risk undertaken by first-line insurers, such as Wells, and

-20-excess insurers, the majority sug g ests that the Fund’ s proposed construction of section 537.2

y ields absurd or unjust results. Supra ¶ 39. For example, t h e m aj ority believes it is absurd for the Act to provide differ ing cover ag e for “identica l employ ers [t hat] purcha se insurance policies from the identical i n s u re r to help cover the same ty pe of loss—workers’
compensa tion obliga

tions—above the identical loss t h re shold.” Supra ¶ 39. I f the two employ ers and policies wer e truly identical, I would ag ree

. But, if one employ er has chosen
to protec t ag ain s t o u t -of- pocket losses by buy ing a true worke rs’ compensa tion liability policy while another has chosen to become self-insure d, eff ectively becoming its own firstline liability insurer, and purcha sing only excess cover ag e to reimburse it for pay ments it has made, as here
, then the two scena rios are simpl y n o t identical. The employ ers have eac h made the rational business decision that best fits their company ’s individual c ircumstance s afte r taking into account the r eleva nt variable s, such as the diff ere nces in c overa g e. ¶ 88 The majority ’s err or derive s from its decision to ignor e inhere nt differ ence s in the ac tual
terms of the insura

nce policie s obtained by

its two hy

pothetically “identica l e mploy ers.” I f Employ er 1 obtained a primary liability p o l i cy , then it contra ctually transfe rre d the
respo n s i b i l i ty for making direc t pay ments to its injured worke rs to its liability insurer. I f, howeve r, as here
, Employ er 2 chose to be self-insure d and purcha sed an excess-only policy
, then its insurer mere ly ag ree d to reimburse it for pay ments it had alre ady made. I n Employ er 2’s case , the ex ce s s i n surer does not contra ctually undertake the primary pay ment responsibility

for a n injured worke r’s be nefits. ¶ 89 I t cannot be overstate d that the Fund assumes only those duties and obligations owed by the insolvent insurer under the specific policy purcha sed. 215 I L CS 5/537.4 (West 2010). I f the insu re r d id not bear the responsibility for paying worke rs’ compensa tion benef its, the Fund does not either. The protec tion the leg islature aff orded to eac h employ er is depende nt not on the majority ’s g ener alized conce pt of “fa irness” but on the specific cover ag e provided by the particula

r policy

. See 215 I L CS 5/534.3 ( West 2010) (def ining a “cove red claim” as one “a rising out of

and within the cove rag e of a n insurance policy ”). ¶ 90 T h e co n cl u s i o n rea ched by the majority would also likely cre ate more d em an d fo r chea per excess-only cover ag e, placing a g reater potential burden on the Fund’ s resour ces. To
pay out more, t h e Fund would have to incre ase the annual assessments paid by insurance companies that financ e it. See 215 I L CS 5 / 5 3 7

. 6 (West 2010) (explaining the Fund’ s assessment and funding proce sses). I ncre ases in those assessments would, in turn, be passed along to insureds as hig her pr emiums, raising the cost of e x cess insura nce. ¶ 91 I n addition, the majority err oneously asser ts that “[t] here is no basis whateve r for c oncer n that [rely ing on members’ as s es s ments to financ e unlimit ed pay ments to the insureds of insolvent companies] will place an undue burden on the Fund’ s resour ces.” Supra ¶ 43. But, in a point quickly g lossed over by the majority ( supra ¶ 43), the maxi mum amount of eac h assessment is statutorily

limit ed to “2% of [each] member company ’s net direc t written premium *** for the cale ndar
y ear prec eding the assessment. *** I f the maxi mum assessme n t, toge ther with the [Fund’s] other assets ***, does not provide, in any one y ear , *** an amount sufficie nt to make all nece ssary pay ments ***[,] the unpaid portion shall b e p aid as soon

-21-thereafter as funds be come available. ” (Emphasis added.) 215 I L CS 5/537.6 (West 2010). ¶ 92 The 2% limit on assessments provides all the “basis” neede d to support my conclusion. As the number of self-insure d employ ers rely ing on excess-only insurance policies who seek
pay ments from the Fund bey ond the applicable caps expands, the Fund’ s long- term pay ment obliga tions could rea dily outstrip its ability to reple nis h i t s re source s under the 2%
assessment limit

. I ndeed, even the majority admits that the asses sment limit may cre ate signific ant delay s in the Fund’ s distribu t i o n o f pay ments. Whil e the majority attempts to minimi ze this conseque nce with the assura nce that the Fund “will ultimately rec over any and all amounts it must pay out *** to meet the obligations of its insolvent members” (empha sis added) ( supra ¶ 43), its explanation ignor es the very rea l impact pay ment delay s would have

on injured worke rs’ rec eipt of what it deems to be worke rs’ compensa tion liability pay ments. ¶ 93 I f the Fund’ s pay ments are indeed for W el l s ’ wo rkers’ compensa tion liability
, as the majority claims, delay s in those pay ments are contra

ry to the leg islative purposes of both the Fund and the I llinois Workers’ Compensation Act. “[T] he fundame ntal purpose of the Act *** was to af

ford protec tion to employ ees by providing them with prompt and equitable
compe nsation for their injuries.” (Emphasis added.) (Int ernal quotation marks omitted.) McNa me e v. F

ed erated Equipment & Supply Co.
, 181 I ll. 2d 415, 421 (1998) (quoting Mitsuuchi v. City of Chicago
, 125 I ll. 2d 489, 494 (1988), quoting Kelsay v. Motorola, Inc.
, 74 I ll. 2d 172, 180-81 (1978) ). Moreover, the leg islative impetus behind t he Fund was “to avoid excessive delay in pay ment” of cover ed claims. 2 1 5 I L CS 5/532 (West 2010). The view adopted by Wells and the m aj o ri t y co n t rave nes t he st ated purposes of bot h the C ode section cre ating the Fund and the Workers’ Compensation Act. Acc ording ly
, the majority ’s construction of section 537.2 violat es the fundame ntal principle that courts must construe statutes to g ive eff

ect to the stated intent of the leg islature, not to contra dict it. Exe lon Corp. v. De partment of Reve nue , 234 I ll. 2d 266, 275 (2009). ¶ 94 Nonethele ss, the majority maintains that its d i s p o s i t i o n i s s u re l y “exactly what [the leg islature] had in mind” when it expressed the Guar anty Fund Ac t’s stated purpose as “to avoid financ ial loss to claimants or policy holders” when an insurer become s insolvent (215 I L CS 5/532 (West 2010)). Supra ¶ 47. The statutory lang uag e also shows, howeve r, that the Act’s protec tion was never desig ned to be all-inclusive. See Exe lon
, 234 I l l

. 2 d at 275 (explaining that construction of statutes should be consistent with their stated leg islative
p urpose)

. The plain languag e of section 537.2 shows that in the vast majority of circ umstances the Fund is oblige d to protec t claimants and policy holders only u p to the
pay ment cap cre ated by the state leg isla ture, here $300,000. Claimants and policy holders still incur all additional losses. Moreove r, s ec tion 537.4 specific ally oblige s the Fund only to fulfill the insolvent insurer’ s duties “ subject to the limitati ons provided in this Article .” (E mphasis added.) 215 I L CS 5/537.4 (West 2010). This phrase expressly caps the Fun d ’s obliga tions at t he amounts adopted by the l eg islature in section 537.2, here $300,000. The majority states that “[ r]equiring the Fund to continue making pay ments *** here there fore does nothing more than place Wells in exactly the same position it would have been in *** and enabling it to avoid what would otherwise be a substantial financ ial loss, namely
, having
to pay out of pocket for the same worke rs’ compensa tion expenses the now worthless Home

-22-I n s u ranc e policy should have cover ed” was the leg islature’s intent. Supra ¶ 47. That

statement is true, howeve r, only if the excess cover ag e policy that Wells actually purchased is transfor med into a primary worke rs compensa tion liability policy that it already declined
to buy

. The majority ’s justification fails to support its interpre tation of the Act; in fac t, its interpre tation ha s to be assumed to support its j ustification. Contrary to its declaration that this court cannot “depa

rt from the plain lang uag e o f t h e law and rea d into it exceptions, limit ations or conditions which the leg islature did not express” ( supra ¶ 38), that is exactly what the majority is doing. The majority ’s approa ch ignor es the lang uag e specific ally chosen by the leg islature for the pay ment cap exception (“ an y wo rkers compensa tion claims ” (empha sis added) ) that would require this court to look to the policy lang uag e to deter mine the true nature of Wells’ cla im. ¶ 95 The leg isla t u re ’s ra t i o n al e fo r cre ating a single exception to the pay ment caps f

or

wo rk er s’ compensa tion claims is rea dily appar ent. 215 I L CS 5/537.2 (West 2010). As previously noted, th e Workers’ Compensation Act’s purpose is to protec t worke rs injured in the workplac e “by providing them with prompt and equitable compensa tion for t h eir injuries.” (I nterna l quotation marks omitted.) McName e , 181 I ll. 2d at 421 (quoting Mitsuuchi v. City of Chicago
, 125 I ll. 2d 489, 494 (1988), quoting Kelsay v. Motorola, Inc.
, 74 I ll. 2d 172, 180-81 (1978))

. Once the policy lang uag e is actua lly examined, it is appar ent that Wells’ cover ed claim is not a worke rs’ compensa tion claim. Acc ording ly
, my proposed
outcome is consistent with the leg islature’s intent to cap the Fund’ s other pay ment obliga tions, as well as with the overa ll purpose of the Guar anty Fund and the plain lang uag e of sections 537.2 and 537.4. Under this construction, Wells’ injured worke r will continue to be aff orded full protec tion and will rec eive her pay ments in a timely manner

. Any delay s in

rec eiving money from the Fund will be limit ed to Wells’ reimburse ment pay ments, not the worke rs’ compensa

tion benef

its being paid to Wells’ seriously in j u re d worke r. 215 I L CS 5/537.6 (West 2010) (stating “I f the maxi mum assessment, toge ther with the [Fund’s] other
assets ***, does not provide, in any one y ear , *** an amount sufficie nt to make all nece ssary pay ments ***[,] the unpaid portion shall be paid as soon thereafter as funds becom e available ” (empha sis added) ). Under the majority ’s rationale
, the burden of the delay would be imposed solely on the injured benef it rec ipient, contra

ry to the leg islature’s stated intent. ¶ 96 The leg is l at u re d i d n o t , h o weve r, express a simil ar intent to provide c omprehe nsive protec tion to self-insure d empl o y er s such as Wells. Employ ers alone can control their potential out-of-poc ket risks based on the rea sonable conseque nces of their rational business decisions about the ty

pe of insurance cover ag e nece ssary t o meet their needs and g oals. Acc ording ly
, my construction is completely consistent with the leg islative p u r pose of section 537.2. See Exe lon
, 234 I ll. 2d at 275 (r eq u i ring courts to eff ectua te t he legislature ’s i ntent by examining the plain, ordinary
, and unamb i gu o us lang uag e of the statutes, taken as a whole). ¶ 97 Although the majority also sug g ests that employ ers who purcha se primary cover ag e are not trea ted unfairly by its i n t er p retation of section 537.2, its supporting assertion t hat “[ i] t is only when the cover ag e threshold is rea ched *** that the Fund’ s obligation would

comme nce ” (empha sis added) ( supra ¶ 45) misses the point. This case is not about employ ers wh o b u y indemnification-only cover ag e obtaining an unfair benef it by rec eiving earlier

-23-pay ments from the Fund. I t is about the leg islature’s statutory restric tion on the total amount employ ers may rec eive from the Fund, reg ardle ss of when those pay ments beg in. I t is the end of the F und’s obligation, not it s beg inning, that is at issue. ¶ 98 The majority also maintains that “[ w] i n d fa l l s t o i n s u re d em p l o y er s ar e * ** an impossibi lity ” beca

use the Fund’ s pay

ment obligation is coextensive with that of the policy

. Supra ¶ 46. Obviously
, the Fund would never pay more than the policy requires

. T h e leg islature, howeve r, specific ally draf ted section 537.2 to require the Fund to pay the lesser of the s u m s d u e u n d er t he policy or the cap, except when the claim is for a worke rs’
compensa tion claim. 215 I L CS 5/537.2 (West 2010). I f the leg islature had intended the Fund
to pay the full benef

its due under ever

y ty pe of policy
, it would not h av e included any pay ment c a p s in section 537.2 (215 I L CS 5/537.2 (West 2010)). The policy limit s themselves would have provided all the caps neede d. Once ag ain, the majority ’s point is only apropo if Wells’ cover ed claim is presumed to b e a worke rs’ compensa tion claim. Making that presumption, howeve r, overlooks the actua l lang uag e used in the applicable statutes and the underlying e x cess- insurance policies. ¶ 99 After car efully revie wing the rele vant statutory provisions, the intent of the leg islature, and t h e appli cable policy lang uag e under this court’s traditional rules of statutory construction, I am compelled to conclude l egi s lative ex ception to the Fund’s pay ment cap for worke rs’ compensa tion claims does not apply to Wells’ indemnification claim ag ainst its defunc t insurer. Acc ording ly
, t h e Fund was oblige d to make pay ments only up to its $300,000 statutory cap. I t has fulfilled that obliga tion, leaving Wells responsible for making its inj ured e mploy ee’ s remaining worke rs’ c ompensation bene fits without reimbursement. ¶ 100 I f Wells should become insolvent, or is otherwise u n ab l e to continue those pay ments, Wells’ injured worke r is still assure d of rec eiving her full worke rs’ compensa tion awa rd. The Self-I nsurer s Advi s o ry Boa rd (SI AB ), cre ated in the Workers’ Compensation Act to administer and pay claims ag ainst insolvent self-insured employ ers, would become responsible for the continuation of h er b enefit pay ments. 820 I L CS 305/4a-1, 4a-6 (West 2010) (cr eating the SI AB and obliging it to “assume * ** the outstanding worke rs’
compensa tion *** obliga tions of t he ins olvent self-insure d”). B eca use I would reve rse the appellate court ’s j udg ment and remand t he cause to the circuit court for entry of sum mary judgme nt in favor of

the Fund, I

must respec tfully

dissent from the majority opinion.

¶ 101 J USTI CE THOMAS, dissenting: ¶ 102 L ike Chief J ustice Kil bride, I am convinced that the cla ims at issue in thi s case are not “wor kers compensa tion claims,” as that term is used in section 537.2 of the Code (215 I L CS 5/537.2 (West 2010)). Acc ording ly , Irespe ctfully dissent. ¶ 103 Clearly
, the public policy purpose of the “wor kers compensa tion claims” exception to the $300, 0 0 0 s tatutory cap is to ensure that an injured worke r rec eives all of the benef its to which he or she is entitled in the eve nt that the employ er’ s worker s’ compensation insurer become s insolvent. Yet I simply cannot see how that public policy purpose is implicated in this case. ¶ 104 I n the ty

pical case of worke rs’ compensa tion liability cover ag e, the insurer ag ree s to pay

-24-when due the benef its require d of the employ er by the worke rs’ compensa tion law. I n other words, with liability cover ag e, the insurer leg ally assumes the employ er’ s obligation to pay the injured employ ee’ s benef its. I ndeed, the Workers’ Compensation Act contemplates this
very arr ang ement when it specific ally authorizes an employ er to “[i] nsure his entire liability
to pay such compensa tion.” 820 I L CS 305/4(a)( 3) (West 2010). Under these circ umstances, if the i nsurer become s insolvent, the employ ee’ s benef its will not be paid, as the insolvent insurer has assumed the leg al obligation to pay them direc tly

. This is the situation for which the exception to the statutory cap e x ists. ¶ 105 I n our case , by contra st, the policy involved is not one of liabili ty in which Home leg ally assumed Wells’ obliga tion to pay its employ ees’ worke rs’ compensa tion b enef its. Rather, the policy involved is one for indemnification
, in which Home ag ree d only to reimburse Wells for workers’ compensa tion benefits it “ac tually paid,” onc e those be nefits re ache d a

cer tain amount. I n other words, Wells
, as the employ er, has legally retained sole responsibility for pay

ing its injured employ ee’ s claims. And this distin cti on is cruc ial beca use, unlike a case involvi n g wo rker s’ compensa tion liabili ty cover ag e, Home’s i n s o l v ency in our case would have no bear ing on whether the injured employ ee is in fa ct paid. Ag ain, Wells contra cted only for reimburse ment of pay ment s a ct ually made

. This

means that, to the extent that Wells is seeking indemnification from Home, the injured employ ee’ s benef

its have to have already been paid

. Conversely
, if at any point Wells stops paying its injured employ ee’ s benef its, for whateve r rea son, Wells would have no claim
ag ainst Home beca

use, aga i n , that policy only provides reimburse ment for pay ments that have already been made

. No pay ment, no reimburse ment. Either way , whateve r arr ang ement Wells has with Home is completely divorce d from and there fore has no bear ing on whether the injured e mploy ee is a ctually paid. ¶ 106 I n o t h er words, the cruc ial distinction in this case is not betwee n primary and exc es s

cover ag e but betwee n liabili ty and i n dem n i f ication cover ag e. This is beca use under any liability policy
, be it primary or excess, the insurer leg ally assumes the employ er’ s obligation
to pay the injured employ ee’ s benef its. A primary liability policy simply mea n s t h at t he insurer assumes that leg al obligation ear lier than under an excess liabili t y policy

. Consequently
, if a liabili ty car rier become s insolvent, be it a primary or an ex cess, the worke rs’ compensa tio n cl aim s that the car rier has assumed leg al responsibility for paying will not be paid . By

contra st, the insolvency of an indemnification car rier w ill neve r

aff ect whether an injured employ ee' s benef its are in fac t paid beca

use an indemnification car rier only reimburses a re sponsible employ er f or cla ims that the employe r has already paid

. ¶ 107 And ag ain, this case involves an i n dem n i f i ca t i o n p o l i cy , n o t a l i a b ility policy

. Consequently
, t h e public policy that I am convince d informs the “wor kers compensa tion claims” exception to the $300,000 statutory cap—to ensure that injured employ ees continue
to be paid despite a worker s’ compensation insurer’ s insolvency —simply is not prese nt in this case

. Consequently
, I am h ar d -p re s s ed to char acte rize the claims at issue as “wor kers
compensa tion claims” rather than as what they patently are —claims for reimb u rs ement of worke rs’ c ompensation claims that have alre ady been pa id. ¶ 108 Acc ording ly , Irespe ctfully dissent.

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