2023 IL App (1st) 230101 First District Third Division November 29, 2023 No. 1-23-0101
CHICAGO WHITE SOX, LTD.; CHISOX ) CORPORATION; CWS MAINTENANCE COMPANY; ) AT YOUR SERVICE, LLC; and AXIS INSURANCE ) COMPANY, Individually and as Subrogee of Chicago ) White Sox, Ltd., CHISOX Corporation, CWS ) Maintenance Company, and At Your Service, LLC, ) ) Plaintiffs, ) Appeal from the Circuit Court ) of Cook County. v. ) ) No. 16 CH 6403 STATE AUTOMOBILE MUTUAL INSURANCE ) COMPANY and WE CLEAN MAINTENANCE AND ) The Honorable SUPPLIES, INC., ) Anna M. Loftus, ) Judge Presiding. Defendants ) ) (AXIS Insurance Company, Plaintiff-Appellant; and ) State Automobile Mutual Insurance Company, ) Defendant-Appellee). )
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion. Justices Lampkin and Navarro concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from a dispute between plaintiff AXIS Insurance Company
(AXIS), as subrogee for plaintiffs Chicago White Sox, Ltd., CHISOX Corporation, CWS
Maintenance Company, and At Your Service, LLC (collectively, the White Sox plaintiffs), and
defendant State Automobile Mutual Insurance Company (State Auto), the insurer for defendant
We Clean Maintenance and Supplies, Inc. (We Clean). After a patron was injured at a Chicago
White Sox game, he filed a lawsuit against the White Sox plaintiffs, and the White Sox No. 1-23-0101
plaintiffs tendered the defense of that suit to State Auto, the insurer for We Clean, a company
with which the White Sox plaintiffs had contracted to perform cleaning services at the ballpark.
State Auto, however, rejected the tender and refused to defend the suit, claiming that the White
Sox plaintiffs were not “additional insureds” under its policy. The White Sox plaintiffs—and
AXIS, as their insurer—filed suit against State Auto and We Clean, alleging that State Auto
had wrongfully denied coverage. Both AXIS and State Auto filed motions for summary
judgment, and the circuit court granted summary judgment in favor of State Auto, finding that
the White Sox plaintiffs were not “additional insureds.” AXIS now appeals, and for the reasons
that follow, we affirm.
¶2 BACKGROUND
¶3 Parties and Underlying Lawsuit
¶4 Beginning in 2008 and continuing at least through 2012, the White Sox plaintiffs entered
into a series of written agreements with We Clean pursuant to which We Clean agreed to
provide cleaning services for all home games played by the Chicago White Sox during the
applicable baseball season.
¶5 In 2011, while at U.S. Cellular Field, 1 Raymond Myles was injured as he was walking
down a ramp. Myles filed a lawsuit against the White Sox plaintiffs in the circuit court of Cook
County (the underlying lawsuit), alleging that they were negligent in causing his injuries due
to, inter alia, failing to inspect the premises to ensure that the ramps were free from excessive
garbage. The lawsuit was later voluntarily dismissed and subsequently refiled under a different
case number, and was ultimately settled for an undisclosed amount.
While the facility was known as U.S. Cellular Field at the time at issue, it has since been 1
renamed as Guaranteed Rate Field. 2 No. 1-23-0101
¶6 In 2014, the White Sox plaintiffs tendered the defense of the underlying lawsuit to State
Auto, the insurer for We Clean, as additional insureds under We Clean’s insurance policy. The
White Sox plaintiffs made a second tender in 2015, but State Auto refused to provide them
with a defense. A third tender was made in 2016, which State Auto again refused to accept,
and the White Sox plaintiffs and AXIS, their insurer, ultimately incurred the costs of defending
and settling the case.
¶7 State Auto Policy and We Clean Contract
¶8 As noted, We Clean was insured by State Auto under a commercial general liability
insurance policy. While We Clean was the sole named insured on the policy, the policy
contained an endorsement adding as an additional insured “[a]ny person or organization for
whom you are performing operations when you and such person or organization have agreed
in a written contract or written agreement that such person or organization be added as an
additional insured on your policy.”
¶9 As relevant to the instant appeal, We Clean entered into several “Contract[s] for Services”
with the White Sox plaintiffs between 2008 and 2012 (the service contracts). All of the service
contracts contained the same language: “Vendor will comply with all insurance requirements
set forth by the Chicago White Sox, and will provide certification of such insurance.” 2
¶ 10 As to 2008, 2009, and 2012, the record also contains an “Indemnification and Insurance
Agreement,” which provides that We Clean “shall procure, at its sole cost and expense, the
insurance coverages set forth below, and shall maintain such coverages in full force and effect
2 The 2011 service contract uses the term “Client” and not “Chicago White Sox,” but the provision is otherwise identical. We also note that the 2011 service contract provides that it is effective for the 2011 baseball season but that extensions were available for the 2012 and 2013 baseball seasons. Accordingly, there is no separate service contract for the 2012 baseball season. 3 No. 1-23-0101
as specified in this Agreement. The Contractor shall include the Indemnified Parties and such
other parties as CWS may designate as additional insureds to the insurance policies described
below ***. The insurance coverage afforded under the policies described herein shall be
primary and non-contributing with respect to any insurance or self-insurance carried
independently by the additional insureds.” The agreement further provided that We Clean
“shall promptly furnish CWS with certificates of insurance evidencing the coverages
hereunder, and shall not commence any services until such insurance is obtained.” The
“insurance policies described below” in the agreement consisted of four different types of
insurance, including a commercial general liability insurance policy. No “Indemnification and
Insurance Agreement” for either 2010 or 2011 is contained in the record on appeal, and an
affidavit from a White Sox representative indicates that the White Sox plaintiffs were unable
to locate such a document. 3
¶ 11 Finally, the record on appeal contains certificates of insurance for each year, which provide
that “[t]he following are listed as primary & non-contributory additional insured under general
liability & primary additional insured under automobile liability” and which list the White Sox
plaintiffs as additional insureds. The certificates of insurance include disclaimers that “THIS
CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER” and that, “[i]f the certificate holder is
an ADDITIONAL INSURED, the policy(ies) must be endorsed. *** A statement on this
certificate does not confer rights to the certificate holder in lieu of such endorsement(s).”
(Emphases in original.)
3 We also note that, in its motion for summary judgment, AXIS indicates that “We Clean did not sign separate Indemnification and Insurance Agreements for years 2010 and 2011.” 4 No. 1-23-0101
¶ 12 Complaint
¶ 13 The White Sox plaintiffs filed a complaint for declaratory judgment in May 2016; the
complaint was amended twice, and it is the second amended complaint, which added AXIS as
a plaintiff, which was the operative complaint at the time of the motions for summary judgment
at issue in the instant appeal. While the second amended complaint raised a total of 11 counts,
we discuss here only the ones relevant to the issues on appeal.
¶ 14 Count I of the complaint was against State Auto for breach of contract concerning the
underlying lawsuit and alleged that State Auto breached its 2010-11 policy by refusing to
provide a defense to the underlying lawsuit. Count II alleged that, due to State Auto’s
unreasonable refusal to defend the underlying lawsuit, it should be estopped from raising any
defenses to coverage. Count III was similar to count I, except it alleged that State Auto had
breached its duty to indemnify the expenses incurred in the underlying lawsuit. Count IV
alleged a violation of section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2018))
based on State Auto’s conduct. Count V sought equitable subrogation, as the complaint alleged
the AXIS insurance policy was secondary to the State Auto policy, while count VI, in the
alternative, requested equitable contribution for the amounts expended by AXIS. Finally, count
VIII 4 was for declaratory judgment and sought a declaration that State Auto was responsible
for paying the amounts owed by We Clean for We Clean’s breach of the contract between We
Clean and the White Sox plaintiffs, which required We Clean to provide a defense and
indemnification to the White Sox plaintiffs with respect to the underlying lawsuit.
4 We note that the second amended complaint contains two counts labeled “count VIII.” Only the first is at issue on appeal. We additionally note that count VII was directed at We Clean, but the record indicates that the company was dissolved in November 2016, and the circuit court entered an order of default against We Clean in October 2020. 5 No. 1-23-0101
¶ 15 Both AXIS and State Auto ultimately filed motions for partial summary judgment with
respect to counts I, II, III, IV, V, and VIII of the second amended complaint. 5 Both motions
primarily concerned the question of whether the 2011 service contract constituted a written
agreement that the White Sox plaintiffs be added as additional insureds on the State Auto
policy such that they would be afforded coverage under We Clean’s policy. AXIS contended
that the service contract, which required We Clean to comply with the White Sox plaintiffs’
“insurance requirements,” sufficed despite the absence of a 2011 indemnification and
insurance agreement, based on the parties’ course of conduct. State Auto, by contrast,
maintained that the absence of an indemnification and insurance agreement meant that We
Clean and the White Sox plaintiffs never expressly agreed to add the White Sox plaintiffs as
additional insureds under We Clean’s policy, as required by the terms of the policy.
¶ 16 On December 15, 2022, the circuit court granted State Auto’s motion for summary
judgment on counts I, II, III, IV, V, and VIII. The circuit court found that the provision in the
service contract that We Clean “comply with all insurance requirements” was not ambiguous
and it therefore could not look to parol evidence to determine whether the insurance
requirements included adding the White Sox plaintiffs as additional insureds to We Clean’s
insurance policy. The circuit court further found that there was no just reason to delay
5 The White Sox plaintiffs also filed a motion for partial summary judgment, which incorporated the AXIS motion and also sought summary judgment on the second “count VIII” and on count IX, both of which concerned a different lawsuit that is not at issue on appeal. State Auto also filed a cross-motion for summary judgment on the second “count VIII” and on count IX. At the time of the hearing on the motions for summary judgment at issue on appeal, however, the parties informed the circuit court that the claims concerning the other lawsuit “ha[ve] been resolved,” and the circuit court later entered an order dismissing those counts with prejudice. 6 No. 1-23-0101
enforcement or appeal of its order, as judgment had been entered in favor of State Auto and
against AXIS. AXIS timely filed a notice of appeal, and this appeal follows. 6
¶ 17 ANALYSIS
¶ 18 On appeal, AXIS contends that the circuit court erred in granting summary judgment in
favor of State Auto, as the evidence established that the White Sox plaintiffs were additional
insureds under We Clean’s insurance policy. A circuit court is permitted to grant summary
judgment only if the pleadings, depositions, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020). The circuit court
must view these documents and exhibits in the light most favorable to the nonmoving party.
Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a
circuit court’s decision to grant a motion for summary judgment de novo. Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 19 Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt. XL Specialty Insurance Co. v. Performance Aircraft
Leasing, Inc., 2019 IL App (1st) 181031, ¶ 63. However, mere speculation, conjecture, or
guess is insufficient to withstand summary judgment. Sorce v. Naperville Jeep Eagle, Inc., 309
Ill. App. 3d 313, 328 (1999). The party moving for summary judgment bears the initial burden
of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet his
burden of proof either by affirmatively demonstrating that some element of the case must be
resolved in his favor or by establishing that there is an absence of evidence to support the
We note that, after the filing of the notice of appeal, the circuit court entered an order which 6
“nunc pro tunc” granted summary judgment in State Auto’s favor on count VI of the second amended complaint, which had been pleaded in the alternative. 7 No. 1-23-0101
nonmoving party’s case. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
purpose of summary judgment is not to try an issue of fact but to determine whether a triable
issue of fact exists. Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002)
(citing Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)).
¶ 20 Where, as here, the parties have filed cross-motions for summary judgment, “they agree
that only a question of law is involved and invite the court to decide the issues based on the
record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28. The mere filing of such cross-motions,
however, does not establish that there is no genuine issue of material fact, nor does it obligate
a court to render summary judgment. Id. We also note that we may affirm on any basis
appearing in the record, whether or not the circuit court relied on that basis or its reasoning
was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 21 In this case, the sole issue is whether the White Sox plaintiffs qualified as additional
insureds under We Clean’s insurance policy. Under the terms of the policy, State Auto agreed
to cover “[a]ny person or organization for whom you are performing operations when you and
such person or organization have agreed in a written contract or written agreement that such
person or organization be added as an additional insured on your policy.” The 2011 service
contract, which was the contract in operation at the time of Myles’s injury, provided that
“Vendor will comply with all insurance requirements set forth by Client, and will provide
certification of such insurance.” Unlike other years, however, there was no accompanying
“Indemnification and Insurance Agreement” in which such insurance requirements were
detailed. State Auto therefore maintains—and the circuit court agreed—that the service
contract was insufficient to constitute a “written contract or written agreement” in which We
Clean agreed to add the White Sox plaintiffs as additional insureds under its policy. AXIS, by
8 No. 1-23-0101
contrast, claims that the circuit court should have looked to extrinsic evidence to conclude that
the “insurance requirements” of the 2011 service contract included the requirement that the
White Sox plaintiffs be added as additional insureds.
¶ 22 In construing a contract, the primary objective is to give effect to the intention of the parties.
Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). A court will first look to the language of the
contract itself, and if the words in the contract are clear and unambiguous, they must be given
their plain, ordinary, and popular meaning. Id. If, however, the language is ambiguous, the
court may consider extrinsic evidence to determine the parties’ intent. Id. A contract is not
rendered ambiguous simply due to the parties’ disagreement as to its meaning. Clanton v.
Oakbrook Healthcare Centre, Ltd., 2023 IL 129067, ¶ 33. Instead, it is considered ambiguous
“when the contract language ‘is susceptible to more than one meaning or is obscure in
meaning.’ ” Id. (quoting Wolff v. Bethany North Suburban Group, 2021 IL App (1st) 191858,
¶ 37).
¶ 23 In this case, there is no dispute that the language of the insurance policy is clear and
unambiguous—it clearly provides coverage for “[a]ny person or organization for whom you
are performing operations when you and such person or organization have agreed in a written
contract or written agreement that such person or organization be added as an additional
insured on your policy.” See Westfield Insurance Co. v. FCL Builders, Inc., 407 Ill. App. 3d
730, 733-34 (2011) (construing identical language). The only question is whether the terms of
the 2011 service contract satisfy the conditions of the insurance policy. We agree with State
Auto and the circuit court that they do not.
¶ 24 First, the language of the service contract merely requires We Clean to “comply with all
insurance requirements set forth” by the White Sox plaintiffs and does not expressly require
9 No. 1-23-0101
We Clean to name the White Sox plaintiffs as additional insureds under its insurance policy.
Several courts have found that the lack of such express language is fatal to a claim that a party
is an additional insured. See, e.g., id. at 734 (finding general contractor not to be an additional
insured where there was no direct agreement between the general contractor and the sub-
subcontractor requiring it to name the general contractor as an additional insured); West Bend
Mutual Insurance Co. v. Athens Construction Co., 2015 IL App (1st) 140006, ¶ 28 (finding
general contractor not to be an additional insured where agreement between general contractor
and subcontractor merely required subcontractor to state that the general contractor was an
additional insured on a certificate of insurance).
¶ 25 Additionally, we cannot agree with AXIS that the term “insurance requirements” in the
service contract is ambiguous such that we may look to extrinsic evidence to determine
whether such “insurance requirements” included a requirement that the White Sox plaintiffs
be added as additional insureds. AXIS contends that a court may use extrinsic evidence to
determine the terms of a contract where those terms are missing from the contract itself. See
Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 30 (1991) (a contract may be enforced
even though some of the terms may be missing); Rose v. Mavrakis, 343 Ill. App. 3d 1086, 1091
(2003) (same). In this case, however, there are no missing terms or unclear terms—the service
contract specifically states that We Clean is to comply with the White Sox plaintiffs’
“insurance requirements.” The problem is that there apparently were no insurance
requirements in 2011, at least none that were reduced to writing. Thus, without a written
agreement that the White Sox plaintiffs were to be named as additional insureds under We
Clean’s policy, there is no basis for finding that they were, in fact, additional insureds, and the
circuit court properly granted summary judgment in favor of State Auto.
10 No. 1-23-0101
¶ 26 We do not find persuasive AXIS’s reliance on Old Republic Insurance Co. v. Kenny
Construction Co., No. 15-CV-03524, 2017 WL 4921970 (N.D. Ill. Oct. 31, 2017). First, this
case is an unpublished federal district court case, and it is well established that such cases are
not binding on this court. See, e.g., Kerbes v. Raceway Associates, LLC, 2011 IL App (1st)
110318, ¶ 34; King’s Health Spa, Inc. v. Village of Downers Grove, 2014 IL App (2d) 130825,
¶ 63; FHP Tectonics Corp. v. American Home Assurance Co., 2016 IL App (1st) 130291, ¶ 45
n.4; People v. Chatman, 2016 IL App (1st) 152395, ¶ 63 n.27. Moreover, the facts in Kenny
Construction differ significantly from those in the case at bar. There, the subcontract at issue
provided that “ ‘[s]ubmittal of the subcontractor’s evidence of insurances shall include the
contractor, the owner and any other additional insureds as required per the Insurance
Requirement Sheet attached hereto.’ ” (Emphasis added.) Kenny Construction, 2017 WL
4921970, at *1. The district court was therefore required to determine if the reference to “other
additional insureds” meant that the prior listed entities—the contractor and the owner—were
also additional insureds. Id. at *4. Since the term was susceptible to two different meanings,
the district court looked to parol evidence to resolve the ambiguity. Id. at *5. Here, by contrast,
there are no competing inferences, such that parol evidence is necessary to resolve any
ambiguity, and accordingly, we find Kenny Construction to be inapposite.
¶ 27 CONCLUSION
¶ 28 For the reasons set forth above, we affirm the circuit court’s grant of summary judgment
in favor of State Auto. Since there was no written agreement between We Clean and the White
Sox plaintiffs requiring the White Sox plaintiffs to be named as additional insureds under We
Clean’s policy, the White Sox plaintiffs were not entitled to coverage by State Auto.
¶ 29 Affirmed.
11 No. 1-23-0101
Chicago White Sox, Ltd. v. State Automobile Mutual Insurance Co., 2023 IL App (1st) 230101
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-CH- 6403; the Hon. Anna M. Loftus, Judge, presiding.
Attorneys Brian C. Bassett and Danielle K. Kegley, of Traub Lieberman for Straus & Shrewsberry LLP, of Chicago, for appellant. Appellant:
Attorneys Robert Marc Chemers and David N. Larson, of Pretzel & for Stouffer, Chtrd., of Chicago, for appellee. Appellee: