PRESIDING JUSTICE COOK,
concurring in part and dissenting in part:
I agree with the majority’s conclusion this contract violates the Indemnification Act. (740 ILCS 35/1 (West 1992) (every provision in a construction contract "to indemnify or hold harmless another person from that person’s own negligence is void as against public policy”).) Any attempt by ADM to contract away its own negligence in a construction setting is void, even if that negligence is comparatively minimal, and even if the other contracting party is itself negligent. The majority indicates the parties could agree, however, to contribution — that each be responsible for its own acts and omissions. Herington asked whether parties could contract for their own form of contribution, separate from the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1992)), and concluded they could not — that such a contract would violate the public policy of Illinois. "Our Contribution Act was carefully crafted by the legislature as a codification of the [Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437,] decision.” (Herington, 266 Ill. App. 3d at 494, 639 N.E.2d at 911.) I agree with Herington on that issue. Herington went on to conclude that the supreme court’s decision in Kotecki could be contracted away. I disagree with Herington on that issue.
Parties are not free to enter into contracts which violate public policy. It is the policy of the Workers’ Compensation Act that "[t]he compensation herein provided *** shall be the measure of the responsibility of any employer.” (820 ILCS 305/11 (West 1994).) In 1967, the supreme court determined that policy must yield to the right of a third-party plaintiff, who was only passively negligent, to seek implied indemnity against an employer who was actively negligent. (Miller v. DeWitt (1967), 37 Ill. 2d 273, 288-89, 226 N.E.2d 630, 640.) The court, however, has taken a different view now that Illinois law has been changed to allow contribution among joint tortfeasors. A third-party plaintiff is now allowed to bring an action against the employer for contribution, but the amount of that contribution is limited to the employer’s workers’ compensation liability. (Kotecki, 146 Ill. 2d at 164, 585 N.E.2d at 1027.) The Kotecki court noted there was a conflict between the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) and the Workers’ Compensation Act, and that its solution was the one " 'we consider most consistent with fairness and the various statutory schemes before us.’ ” Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1028, quoting Lambertson v. Cincinnati Corp. (1977), 312 Minn. 114, 130, 257 N.W.2d 679, 689.
Kotecki is as much a part of the Contribution Act and the Workers’ Compensation Act as is the statutory language. A third party with bargaining power, such as ADM, may not demand that an employer, such as All Tri-R, contract for a nonstatutory form of contribution or of workers’ compensation. Such a construction would contravene the public policy of Illinois. (See Herington, 266 Ill. App. 3d at 494, 639 N.E.2d at 911.) Herington argues, however, that employers generally have a legal obligation to pay contribution, and 'Kotecki merely limited this obligation to the amount of the worker’s compensation liability.” (Herington, 266 Ill. App. 3d at 496, 639 N.E.2d at 912.) Even if I agreed that supreme court decisions which merely limit statutory obligations could be contracted away, I would disagree there is any obligation on the part of an employer to pay contribution, separate from Kotecki. It was not automatic, after Illinois allowed third-party active-passive indemnity actions against employers, that it would allow contribution actions. Contribution actions are a more serious infringement on the exclusive remedy statutory policy than are active-passive indemnity actions. It is not correct that Skinner and Doyle first allowed full contribution, and Kotecki then limited the amount of that contribution. The supreme court’s decisions in this area must be read as a whole. There is no supreme court decision which allows unlimited contribution. Kotecki, 146 Ill. 2d at 162, 585 N.E.2d at 1026 (question of limit on employer’s liability not answered in Doyle).
The argument made in Herington, that employers may choose not to raise the defense of the Workers’ Compensation Act in a negligence action, and therefore may choose to contract away their rights under the Act, is unpersuasive. There is a difference between settling a loss after it has occurred, or failing to contest a claim, and requiring a party to give up his rights in advance. The majority cites Board of Education for the proposition that employers may contract to supplement employee benefits under the Act. It is true that employers often provide health insurance and other benefits to employees in addition to the benefits to which the employees are entitled under the Act. The Act provides for a credit in that situation, to avoid double recovery. (See 820 ILCS 305 / 8(j) (West 1994).) The employer in Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 476, 427 N.E.2d 1199, 1201-02, did not assert its right to those credits, and accordingly waived its right to them. See also Board of Education, 86 Ill. 2d at 479, 427 N.E.2d at 1203 (Underwood, J., specially concurring).
The only contribution we have in Illinois is limited to an employer’s workers’ compensation liability. Parties are not free to create their own Contribution Act or their own Workers’ Compensation Act. I would answer both certified questions in the negative.