2017 IL App (1st) 162234
Ill. App. Ct.2017Background
- Blinderman was the general contractor on a school project; it required subcontractor Polcurr to carry insurance naming Blinderman as an additional insured. Polcurr procured a policy from Hastings.
- Employee Robert Woods (Polcurr) was severely injured on the job; Woods’s estate sued Blinderman for negligence, alleging failures to provide safe support/supervision and to warn of dangerous conditions. The complaint did not assert claims against Polcurr.
- Blinderman tendered defense to Hastings; Hastings rejected the tender relying on a policy exclusion for liability "arising out of the sole negligence of the additional insured."
- Blinderman filed a third-party complaint against Polcurr alleging Polcurr’s negligence contributed to Woods’s injury; Hastings sought declaratory relief that it had no duty to defend or indemnify Blinderman.
- The trial court granted summary judgment for Hastings, holding the underlying complaint’s silence about Polcurr meant Hastings met its burden to show Blinderman’s liability (if any) arose solely from Blinderman’s negligence.
- The appellate court reversed, holding Hastings failed to prove Polcurr’s conduct did not contribute to the injury and thus had not met its burden to establish the exclusion applied.
Issues
| Issue | Plaintiff's Argument (Hastings) | Defendant's Argument (Blinderman) | Held |
|---|---|---|---|
| Whether Hastings had a duty to defend Blinderman as an additional insured | The underlying complaint alleges only Blinderman’s negligence and contains no allegations against Polcurr, so the policy’s "sole negligence" exclusion applies and Hastings has no duty to defend | The complaint’s silence about Polcurr is not dispositive; Hastings must prove Polcurr did not contribute to the injury before exclusion applies | Reversed: Hastings failed to meet its burden to show the injury arose solely from Blinderman’s negligence; duty to defend question remains for further proceedings |
Key Cases Cited
- United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64 (supreme court of Illinois) (insurer must defend if underlying complaint alleges facts potentially within coverage)
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (supreme court of Illinois) (same duty-to-defend principles)
- Addison Insurance Co. v. Fay, 232 Ill. 2d 446 (supreme court of Illinois) (insurer bears burden to prove coverage exclusions apply)
- Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278 (supreme court of Illinois) (standard of review for summary judgment in duty-to-defend cases)
- Roszak/ADC, LLC v. Pekin Insurance Co., 402 Ill. App. 3d 1055 (Ill. App. Ct.) (additional-insured limitation held to bar duty to defend where complaint supplied no basis to implicate subcontractor)
- Ramara, Inc. v. Westfield Insurance Co., 814 F.3d 660 (3d Cir.) (silence about employer/subcontractor in complaint may reflect workers’ compensation immunity and should not automatically defeat duty to defend)