Employers Insurance of Wausau v. James McHugh Construction Co.

144 F.3d 1097
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 27, 1998
DocketNo. 97-2346
StatusPublished
Cited by1 cases

This text of 144 F.3d 1097 (Employers Insurance of Wausau v. James McHugh Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employers Insurance of Wausau v. James McHugh Construction Co., 144 F.3d 1097 (7th Cir. 1998).

Opinion

BAUER, Circuit Judge.

Appellant Employers Insurance of Wausau appeals from the district court’s grant of summary -judgment to the defendants on Wausau’s complaint for declaratory and monetary relief stemming from an insurance coverage dispute. For the reasons discussed below, we affirm.

BACKGROUND

The underlying facts in this case are fairly straightforward and are not disputed by the parties. In July 1992, appellee James McHugh Construction Company (“McHugh”) was hired as a contractor by Stein & Company Program Management, Inc. (“Stein”) for a project undertaken for the University of Chicago (the “University”). Specifically, the project at issue was the construction of the University’s Graduate School of Business at Cityfront Center. McHugh, in turn, hired Pitt-Des Moines, Inc. (“PDM”) as the structural steel sub-contractor. As part of its contract with McHugh, PDM was required to provide certain insurance, and PDM took out a policy with appellant Employers Insurance of Wausau (‘Wausau”) to fulfill its obligations. In the Wausau policy, McHugh, Stein, and the University were all named as additional insureds. McHugh also had its own general liability insurance with appellee St. Paul Fire & Marine Insurance Company (“St.Paul”), which named the University as an additional insured, and the University was itself insured by appellee Northbrook Property & Casualty Company (“Northbrook”). This tangled web of policies is the catalyst for the present suit.

On January 18, 1995, John Budeselich, an ironworker at the University construction site, filed suit against McHugh and the University in the Circuit Court of Cook County, Illinois. Budeselich claimed that he was injured at the site on July 7, 1993, due to the wrongful and negligent acts of McHugh and the University, and also sought relief under the Illinois Structural Work Act, 740 ILCS 150/1 et seq.1 McHugh notified Wausau on Janiiary 26, 1995, requesting that Wausau defend and indemnify it (as well as the University) against the Budeselich suit. After other correspondence, Wausau acknowledged that McHugh and the University were additional insureds under the PDM policy, but requested that the parties also tender their defenses to their own insurance companies so that the cost of the defense could be split among the insurers. McHugh refused on behalf of itself and the University to tender the defense to their insurers, and refused to reconsider its decision after Wausau sent it another letter in January 1996. McHugh and the University proceeded to hire lawyers to defend them in the Budeselich suit. As of February 28, 1997, Wausau had expended $7,125 in defense of the suit.

On November 4, 1996, Wausau filed the present suit against McHugh and the University, as well as against St. Paul and Northbrook. With regard to McHugh and the University, Wausau sought a declaratory judgment that either: 1) McHugh and the University had an obligation under the Wausau policy to tender their defenses to St. [1100]*1100Paul and Northbrook, respectively, and that their failure to do so was a breach of the insurance contract with Wausau which voided its coverage; or 2) Wausau is only required to pay its pro rata share of the defense of the Budeselich ease. Wausau also sought monetary relief for the. amounts it had expended in defending McHugh and the University. With respect to St. Paul and Northbrook, Wausau sought a declaratory judgment that St. Paul and Northbrook must pay their pro rata shares of the defense costs of McHugh and the University, and also sought monetary relief and equitable subrogation. After some discovery, the parties filed cross-motions for summary judgment, and on April 21, 1997, Judge Conlón granted the defendants’ motions and denied the plaintiffs motion. Judgment was entered the same day, and Wausau filed a timely notice of appeal on May 20, 1997. With these facts in mind, we turn to Wausau’s contentions on appeal.

DISCUSSION

We review the district court’s grant of summary judgment de novo. McGinn v. Burlington Northern Ry. Co., 102 F.3d 295, 298 (7th Cir.1996) (citation omitted). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the record and extract all reasonable inferences from it in the light most favorable to the nonmoving party. McGinn, 102 F.3d at 298 (citation omitted). Only disputes that could affect the outcome of the suit under governing law will preclude an entry of judgment for the moving party. Id.

I. Applicability of Institute Decision

In the district court, Wausau argued that the court should find that McHugh and the University breached their contract with Wausau, thus ending Wausau’s obligation to defend and indemnify them. The claimed breach was the failure of McHugh and the University to tender their defenses to their own insurance companies as well as to Wausau. Wausau claimed that the insurance contract required McHugh and the University to tender their defenses to their own insurers, pointing to the following language:

2. Duties In The Event Of Occurrence, Claim or Suit.

c. You and any other involved insured must:

(3) Cooperate with us in the investigation, settlement or defense of the claim or “suit”; and
(4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be hable to the insured because of injury or damage to which this insurance may also apply. '
8. Transfer Of Rights Of Recovery Against Others To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and ’ help us enforce them.

McHugh and the University, in turn, argued that they were well within their rights in tendering their defense solely to Wausau, based on the Illinois Appellate Court case of Institute of London Underwriters v. The Hartford Fire Insurance Company, 234 Ill.App.3d 70, 175 Ill.Dec. 297, 599 N.E.2d 1311 (1992). The district court rejected Wausau’s argument and accepted that of the appellees, and granted summary judgment based on Institute. Wausau repeats its claims here, arguing that the district court erroneously relied on Institute, a threshold issue which we examine de novo. In order to do so, however, we must first relay a rather lengthy rendition of the background facts of Institute.

In Institute,

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144 F.3d 1097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-insurance-of-wausau-v-james-mchugh-construction-co-ca7-1998.