Clarendon America Insurance v. Prime Group Realty Services, Inc.

907 N.E.2d 6, 389 Ill. App. 3d 724, 329 Ill. Dec. 687, 2009 Ill. App. LEXIS 189
CourtAppellate Court of Illinois
DecidedMarch 26, 2009
DocketNos. 1-08-0791, 1-08-1985 cons.
StatusPublished
Cited by11 cases

This text of 907 N.E.2d 6 (Clarendon America Insurance v. Prime Group Realty Services, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarendon America Insurance v. Prime Group Realty Services, Inc., 907 N.E.2d 6, 389 Ill. App. 3d 724, 329 Ill. Dec. 687, 2009 Ill. App. LEXIS 189 (Ill. Ct. App. 2009).

Opinion

JUSTICE GALLAGHER

delivered the opinion of the court:

Defendant and third-party plaintiff Prime Group Realty Services, Inc. (Prime Group), appeals the trial court’s granting of summary judgment in Ala Carte Entertainment, Inc.’s (Ala Carte) favor and denying its motion for summary judgment relating to a lease entered into between Prime Group as lessor and Ala Carte as lessee. On appeal, Prime Group claims that the trial court erred in not finding that Ala Carte breached its duties under the lease by failing to procure the required insurance covering the premises and Prime Group’s acts and omissions. For the reasons that follow, we reverse and remand with directions.

Ala Carte’s predecessor entered into a lease dated April 29, 1988, with Prime Group’s predecessor to operate a restaurant at a commercial office building located at 1701 Golf Road in Rolling Meadows. Prime Group owns and operates the building. Ala Carte operated Magnum’s Restaurant and a cafeteria on the ground-floor level of the building, which is also known as Continental Towers. The executed lease identified the “demised premises” in part as:

“being certain space in the plaza level and basement level and described in the plan attached hereto as Exhibit ‘A’ in the building as shown on Exhibit B (hereinafter known as ‘Building’) known as the Continental Towers Commercium, located on the real estate legally described in Exhibit ‘C’ (the ‘Real Property’) located at 1701 Golf Road, Rolling Meadows, Illinois, which is part of an office complex consisting of the Building and three office towers commonly known as Continental Towers (‘Continental Towers’).”

The lease contained a waiver of claims and indemnity paragraph set forth in section 14, which states in part that “[njothing in this section shall be deemed to relieve Landlord from liability for its own negligence or willful misconduct or that of anyone for whom Landlord is legally responsible.” The lease also included a provision relating to the landlord’s responsibility for repairs, which states:

“35. LANDLORD’S RESPONSIBILITY FOR REPAIRS.
Landlord shall, at its own expense promptly make all repairs and replacements, structural and otherwise, reasonably necessary or desirable in order to keep in good order and repair the exterior walls of the premises, the roof and roofing, the exterior and public portions of the Building (including the public halls and stairways, plumbing, wiring and other building equipment for the general supply of water, heat, air conditioning, gas and electricity) and the Real Property (including the Parking Area).
Notwithstanding anything to the contrary contained in this Lease, Landlord shall not be relieved from liability for damages resulting from Landlord’s own negligence or willful misconduct in making repairs or resulting from the negligence or willful misconduct of anyone for whom Landlord is legally responsible.”

Paragraph 36 of the lease contained an insurance provision, which states in relevant part:

“36. INSURANCE, (a) Tenant shall, at its sole cost and expense, maintain at all times with responsible insurance carriers acceptable to Landlord licensed to do business in the State of Illinois, insurance covering the premises for the mutual benefit of Landlord and Tenant as follows:
* Hi *
(v) Comprehensive General Liability Insurance, with such limits as may be reasonably requested by Landlord from time to time, but not less than a $5,000,000.00 excess liability for bodily injury and property damage;
* * *
(c) All insurance policies shall name Landlord [Prime Group], American National Bank and Trust Company of Chicago as Trustee under Trust No. 40935; Continental Towers Associates — I, an Illinois limited partnership; Continental Offices, Ltd., and General Electric Credit Corporation as additional insureds, as their respective interests may appear. Landlord may, by written notice to Tenant, designate other parties as additional insureds. All such insurance shall provide that:
(i) The coverage provided includes the premises;
(iii) All losses shall be payable notwithstanding any act or negligence of Tenant or Landlord or the occupation or use of the premises for purposes more hazardous than permitted by terms of such policy.”

Ala Carte procured an insurance policy from Clarendon America Insurance Company (Clarendon) that listed Prime Group as an additional insured. The issued Clarendon policy also included an endorsement that excluded commercial general liability coverage to an additional insured for “[i]ts own acts or omissions.”

The instant litigation arose out of an injury to William Klinowski, an Ala Carte employee. On February 26, 2002, Klinowski injured himself after repairing the heating, ventilating, air conditioning (HVAC) system located on Continental Towers’s roof by slipping on the roof while climbing over the roof joint. According to a lease amendment dated May 29, 1998, Ala Carte bore the responsibility of maintaining the HVAC system located on the roof assigned to the demised premises.

Klinowski filed a personal injury complaint naming Prime Group as a defendant relating to the injuries resulting from his slip on the building’s roof. Prime Group filed an answer denying negligence and filed a third-party complaint against Ala Carte. Prime Group’s complaint against Ala Carte sought in count I contribution for Ala Carte’s negligence in injuring Klinowski, and in count II Prime Group sought damages for Ala Carte’s breach of the lease by failing to procure insurance for Prime Group’s protection.

Prime Group tendered defense of the Klinowski action to Ala Carte and Clarendon on May 13, 2004. Clarendon responded to Prime Group on December 15, 2004, denying coverage because Prime Group was not a named insured or an additional insured under the policy.

On June 3, 2005, Clarendon filed a complaint for declaratory judgment stating that it did not owe coverage to Prime Group or Ala Carte relating to the Klinowski litigation. Clarendon amended its complaint on August 15, 2005. Prime Group and Ala Carte filed answers to Clarendon’s declaratory judgment action. On May 4, 2006, the trial court granted Ala Carte’s insurance broker’s, Associated Underwriters of America, Inc. (Associated Underwriters), petition to intervene and to file a responsive pleading. On June 1, 2006, Associated Underwriters filed its answers to Clarendon’s complaint and requested an order directing Clarendon to provide a defense to Prime Group and indemnify it or, alternatively, enter an order stating that the lease did not require Ala Carte to provide insurance for Prime Group.

In a letter sent to Prime Group’s counsel on August 2, 2006, Clarendon agreed to defend Prime Group under a reservation of rights since Prime Group was named as an additional insured in an endorsement issued by Clarendon. Clarendon denied coverage to Prime Group “to the extent that it is determined that William Klinowski’s injuries are the result of Prime Group’s negligence.”

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Cite This Page — Counsel Stack

Bluebook (online)
907 N.E.2d 6, 389 Ill. App. 3d 724, 329 Ill. Dec. 687, 2009 Ill. App. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarendon-america-insurance-v-prime-group-realty-services-inc-illappct-2009.