SECOND DIVISION September 29, 2006
No. 1-05-3272
FIREMAN'S FUND INSURANCE COMPANY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. v. ) ) SERGE J. PIERRE-LOUIS and SUBURBAN ) BANK AND TRUST, as Trustee Under Trust ) Honorable No. 0904, ) David R. Donnesberger, ) Judge Presiding. Defendants-Appellees. )
JUSTICE SOUTH delivered the opinion of the court:
This appeal arises from two orders of the circuit court of Cook County entered on March
17, 2005, and September 9, 2005, declaring that plaintiff, Fireman=s Fund Insurance Company,
owed a duty to defend defendant, Serge J. Pierre-Louis, in an underlying case, as well as a duty
to reimburse him for attorney fees and costs incurred in defending that case.
Plaintiff, Fireman=s Fund, is a corporation duly licensed in the State of Illinois to write
insurance policies. It issued a general liability policy to 155 North Harbor Drive Condominium
Association, which was in effect from December 1, 2002, through December 1, 2003. That
commercial general liability insurance coverage states in relevant part:
A1. Insuring Agreement.
(a) We will pay those sums that the insured becomes
legally obligated to pay as damages because of >bodily injury= or
>property damage= to which this insurance applies. We will have 1-05-3272
the right and duty to defend the insured against any >suit= seeking
those damages. However, we will have not [sic] duty to defend the
insured against any >suit= seeking damages for >bodily injury= or
>property damage= to which this insurance does not apply. We may
at our discretion, investigate any >occurrence= and settle any claim
or >suit= that may result.@
Additionally, Section II of the policy defines an insured to include the following:
AEach other unit owner of the described condominium, but
only with respect to liability arising out of ownership, maintenance
or repair of that portion of the premises which is not owned solely
by the unit owner.@ (Emphasis added.)
Defendant Serge Pierre-Louise owns a condominium in Harbor Point at 155 North
Harbor Drive in Chicago, Illinois. On July 21, 2003, members of the maintenance staff
responded to a report of a leak in his unit. Further investigation revealed that his kitchen faucet
supply line was causing the leak. The staff observed water under his kitchen sink, on his kitchen
and hardwood floors in the dining room and hallway, and the living room, bedroom and closet
carpets. The Harbor Point Condominium Association, the company which manages the building,
sent a letter to defendant advising him of this condition and informed him that 22 other owners in
the building had reported water damage to their units as a result of the leak in his unit.
Defendant was further advised that Aall maintenance, repairs and replacements in a unit are the
responsibility of the unit owner, as well as any damages caused to any common element or other
2 1-05-3272
units,@ and that he should notify his insurance company and contact the owners of the affected
units in order to resolve the matter.
On October 17, 2003, Suburban Bank and Trust (Suburban), the titleholder of one of the
damaged units adjacent to defendant=s, filed a two-count complaint in the circuit court of Cook
County against defendant. Count I alleged negligence in that defendant Afailed to make required
repairs; failed to conform to Code of the City of Chicago; and failed to comply with the
requirements of the Declaration and By-Laws of the Harbor Point Condominium Association.@
Count II of the complaint alleged gross negligence in that defendant had received Awritten notice
of a dangerous and defective condition indicating a high likelihood that the inferior >plastic lines
used for water supply= in the kitchen of the unit were of such a defective nature that they were
susceptible to explosion at any time since they were inferior to the pressure demand on the
system,@ and that A[his] total disregard of the warnings given, and received by him, constitutes
gross negligence and endangerment of the property of the plaintiff.@ Count II further alleged
that the damages could have been avoided by the replacement of an appliance costing less than
$3.
On January 21, 2004, defendant tendered the defense of the Suburban lawsuit to plaintiff.
Plaintiff declined to defend the Suburban lawsuit on the grounds that defendant=s alleged
liability arose out of that portion of his premises which was owned, occupied and used solely and
used exclusively by him, i.e., the kitchen water supply line.
On April 21, 2004, plaintiff filed a complaint for declaratory judgment, seeking a finding
and declaration that defendant was not entitled to insurance coverage under the policy, and that
3 1-05-3272
plaintiff was under no obligation to defend or indemnify him with respect to the Suburban
lawsuit. Defendant ultimately settled the Suburban lawsuit for $2,000.
Subsequently, plaintiff filed a motion for summary judgment, and defendant filed a cross-
motion for summary judgment.
On March 17, 2005, the trial court denied plaintiff=s motion for summary judgment and
granted defendant=s cross-motion for summary judgment, declaring it had a duty to defend in the
Suburban lawsuit. Defendant was also ordered to file a fee petition and affidavit supporting
reimbursement for fees and costs he incurred in defending the Suburban lawsuit.
On September 9, 2005, the trial court entered a final judgment and order, stating that (1)
plaintiff had a duty to defend defendant in the Suburban lawsuit; (2) pursuant to the parties=
agreement with respect to the fee petition, defendant was awarded $25,000 representing the fees
and costs he incurred in defending the Suburban lawsuit; and (3) defendant=s request for
reimbursement of the settlement amounts paid to settle the Suburban lawsuit was denied.
Defendant has not filed a cross appeal on that portion of the order which denied his request for
reimbursement of the $2,000 settlement amount.
The issue raised by plaintiff on this appeal is whether the Suburban lawsuit alleges
damages which arose out of defendant=s ownership, maintenance, or repair of a portion of his
condominium unit (a) not owned solely by him and (b) not reserved for his exclusive use or
occupancy.
Because this is an appeal from an order granting summary judgment, we review the case
de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
4 1-05-3272
Summary judgment is appropriate when there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240
(1986). Summary judgment is a drastic measure and should only be granted if the movant=s right
to judgment is clear and free from doubt. Purtill, 111 Ill. 2d at 240. Where a reasonable person
could draw divergent inferences from undisputed facts, summary judgment should be denied.
Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). To determine whether the insurer has a duty to
defend the insured, the court must look to the allegations in the underlying complaint and
compare these allegations to the relevant provisions of the insurance policy. Outboard Marine
Corp., 154 Ill. 2d at 108. If the facts in the underlying complaint fall within, or potentially
within, the policy=s coverage, the insurer=s duty to defend arises.
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION September 29, 2006
No. 1-05-3272
FIREMAN'S FUND INSURANCE COMPANY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. v. ) ) SERGE J. PIERRE-LOUIS and SUBURBAN ) BANK AND TRUST, as Trustee Under Trust ) Honorable No. 0904, ) David R. Donnesberger, ) Judge Presiding. Defendants-Appellees. )
JUSTICE SOUTH delivered the opinion of the court:
This appeal arises from two orders of the circuit court of Cook County entered on March
17, 2005, and September 9, 2005, declaring that plaintiff, Fireman=s Fund Insurance Company,
owed a duty to defend defendant, Serge J. Pierre-Louis, in an underlying case, as well as a duty
to reimburse him for attorney fees and costs incurred in defending that case.
Plaintiff, Fireman=s Fund, is a corporation duly licensed in the State of Illinois to write
insurance policies. It issued a general liability policy to 155 North Harbor Drive Condominium
Association, which was in effect from December 1, 2002, through December 1, 2003. That
commercial general liability insurance coverage states in relevant part:
A1. Insuring Agreement.
(a) We will pay those sums that the insured becomes
legally obligated to pay as damages because of >bodily injury= or
>property damage= to which this insurance applies. We will have 1-05-3272
the right and duty to defend the insured against any >suit= seeking
those damages. However, we will have not [sic] duty to defend the
insured against any >suit= seeking damages for >bodily injury= or
>property damage= to which this insurance does not apply. We may
at our discretion, investigate any >occurrence= and settle any claim
or >suit= that may result.@
Additionally, Section II of the policy defines an insured to include the following:
AEach other unit owner of the described condominium, but
only with respect to liability arising out of ownership, maintenance
or repair of that portion of the premises which is not owned solely
by the unit owner.@ (Emphasis added.)
Defendant Serge Pierre-Louise owns a condominium in Harbor Point at 155 North
Harbor Drive in Chicago, Illinois. On July 21, 2003, members of the maintenance staff
responded to a report of a leak in his unit. Further investigation revealed that his kitchen faucet
supply line was causing the leak. The staff observed water under his kitchen sink, on his kitchen
and hardwood floors in the dining room and hallway, and the living room, bedroom and closet
carpets. The Harbor Point Condominium Association, the company which manages the building,
sent a letter to defendant advising him of this condition and informed him that 22 other owners in
the building had reported water damage to their units as a result of the leak in his unit.
Defendant was further advised that Aall maintenance, repairs and replacements in a unit are the
responsibility of the unit owner, as well as any damages caused to any common element or other
2 1-05-3272
units,@ and that he should notify his insurance company and contact the owners of the affected
units in order to resolve the matter.
On October 17, 2003, Suburban Bank and Trust (Suburban), the titleholder of one of the
damaged units adjacent to defendant=s, filed a two-count complaint in the circuit court of Cook
County against defendant. Count I alleged negligence in that defendant Afailed to make required
repairs; failed to conform to Code of the City of Chicago; and failed to comply with the
requirements of the Declaration and By-Laws of the Harbor Point Condominium Association.@
Count II of the complaint alleged gross negligence in that defendant had received Awritten notice
of a dangerous and defective condition indicating a high likelihood that the inferior >plastic lines
used for water supply= in the kitchen of the unit were of such a defective nature that they were
susceptible to explosion at any time since they were inferior to the pressure demand on the
system,@ and that A[his] total disregard of the warnings given, and received by him, constitutes
gross negligence and endangerment of the property of the plaintiff.@ Count II further alleged
that the damages could have been avoided by the replacement of an appliance costing less than
$3.
On January 21, 2004, defendant tendered the defense of the Suburban lawsuit to plaintiff.
Plaintiff declined to defend the Suburban lawsuit on the grounds that defendant=s alleged
liability arose out of that portion of his premises which was owned, occupied and used solely and
used exclusively by him, i.e., the kitchen water supply line.
On April 21, 2004, plaintiff filed a complaint for declaratory judgment, seeking a finding
and declaration that defendant was not entitled to insurance coverage under the policy, and that
3 1-05-3272
plaintiff was under no obligation to defend or indemnify him with respect to the Suburban
lawsuit. Defendant ultimately settled the Suburban lawsuit for $2,000.
Subsequently, plaintiff filed a motion for summary judgment, and defendant filed a cross-
motion for summary judgment.
On March 17, 2005, the trial court denied plaintiff=s motion for summary judgment and
granted defendant=s cross-motion for summary judgment, declaring it had a duty to defend in the
Suburban lawsuit. Defendant was also ordered to file a fee petition and affidavit supporting
reimbursement for fees and costs he incurred in defending the Suburban lawsuit.
On September 9, 2005, the trial court entered a final judgment and order, stating that (1)
plaintiff had a duty to defend defendant in the Suburban lawsuit; (2) pursuant to the parties=
agreement with respect to the fee petition, defendant was awarded $25,000 representing the fees
and costs he incurred in defending the Suburban lawsuit; and (3) defendant=s request for
reimbursement of the settlement amounts paid to settle the Suburban lawsuit was denied.
Defendant has not filed a cross appeal on that portion of the order which denied his request for
reimbursement of the $2,000 settlement amount.
The issue raised by plaintiff on this appeal is whether the Suburban lawsuit alleges
damages which arose out of defendant=s ownership, maintenance, or repair of a portion of his
condominium unit (a) not owned solely by him and (b) not reserved for his exclusive use or
occupancy.
Because this is an appeal from an order granting summary judgment, we review the case
de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
4 1-05-3272
Summary judgment is appropriate when there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240
(1986). Summary judgment is a drastic measure and should only be granted if the movant=s right
to judgment is clear and free from doubt. Purtill, 111 Ill. 2d at 240. Where a reasonable person
could draw divergent inferences from undisputed facts, summary judgment should be denied.
Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). To determine whether the insurer has a duty to
defend the insured, the court must look to the allegations in the underlying complaint and
compare these allegations to the relevant provisions of the insurance policy. Outboard Marine
Corp., 154 Ill. 2d at 108. If the facts in the underlying complaint fall within, or potentially
within, the policy=s coverage, the insurer=s duty to defend arises. Outboard Marine Corp. 154 Ill.
2d at 108. Refusal to defend is unjustifiable unless it is clear from the face of the underlying
complaint that the facts alleged do not fall potentially within the policy=s coverage. Outboard
Marine Corp., 154 Ill. 2d at 108.
The Suburban complaint alleges that defendant was the Atitle holder of record of unit
3110 Harbor Drive@ and maintained Ahis premises in a careless and negligent fashion.@ Plaintiff
argues that such language indicates that Suburban was suing defendant solely because he was the
individual owner of the unit which was reserved for his exclusive use and occupancy, thereby
disqualifying him as an additional insured under the insurance agreement. According to
plaintiff, the factual allegations in the Suburban complaint that defendant was Arequired@ to make
Arepairs@ to the leak on Ahis premises,@ indicated that the damages to the other units arose out of a
portion of the premises owned solely by him and reserved for his exclusive use and occupancy as
5 1-05-3272
opposed to some aspect of the common elements whose maintenance and repair would have been
the responsibility of the condominium association. Defendant=s response is that the Awater
supply line@ referred to in the Suburban complaint is part of the building=s pipe system, i.e., a
common element.
In existence at the time of the incident was a document entitled ADeclarations of
Condominium Ownership and of Easements, Restrictions, Covenants and Bylaws for the 155
Harbor Drive Condominium Association.@ Article II of that declaration reads in pertinent part:
A3.01 Description. Except as otherwise provided in this
Declaration, the Common Elements shall consist of all portions of
the Property except the Units. Without limiting the generality of
the foregoing, the Common Elements shall include the portions of
the Building occupied by the stairways, entrances and exits,
elevators, mail boxes, swimming pool, recreation rooms, and other
amenity areas, lobbies, corridors, storage areas, managements
offices, the Parking Area, all structural parts of the Building, pipes,
ducts, flues, chutes, conduits, wires and other utility installations to
the outlets, and such component parts of walls, floors, and ceiling
as are not located within the Units and structural parts of the
Building, including structural columns located within the Units
***.@ (Emphasis added.)
The Suburban complaint alleges that the water leak in defendant=s unit emanated from
6 1-05-3272
Ainferior plastic lines used for water supply in the kitchen of the unit.@ The insurance policy
covers all of the unit owners with respect to those portions of the premises which are not
reserved for their exclusive use. Undoubtedly, water pipes or water supply lines fall under the
rubric of common elements since these conduits supply all of the units throughout the building.
In other words, there are portions within the individual units which are part of the common
elements, which includes water pipes. The water pipes, which supply the entire building, are not
used exclusively by any one unit but constitute part of the common elements. Plaintiff is not
suggesting that individual water supply lines or pipes are constructed for each unit, nor would
such an argument be rational. The pipes or water lines run throughout the building and supply
each of the units. Therefore, inasmuch as the allegations in the Suburban complaint allege
damages arising out of that portion of defendant=s premises which is part of the common
elements of the building, we find the trial court did not err in finding that plaintiff had a duty to
defend on the underlying action.
Accordingly, the judgment of the circuit court is affirmed.
Affirmed.
HOFFMAN and HALL, JJ., concur.