Frankenmuth Mutual Insurance Co. v. Hodsco Construction, Inc.

191 F. Supp. 3d 863, 2016 WL 3267313
CourtDistrict Court, N.D. Illinois
DecidedJune 8, 2016
DocketCivil Action No. 15 CV 11029
StatusPublished
Cited by2 cases

This text of 191 F. Supp. 3d 863 (Frankenmuth Mutual Insurance Co. v. Hodsco Construction, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frankenmuth Mutual Insurance Co. v. Hodsco Construction, Inc., 191 F. Supp. 3d 863, 2016 WL 3267313 (N.D. Ill. 2016).

Opinion

OPINION AND ORDER

CHARLES RONALD NORGLE, United States District Court Judge

Several years after a residential development was built in Glenview, Illinois, residents discovered water leaking into their homes. As a result, the condominium association. Defendant Tower Crossing Condominium Association (the “Association”) sued several contractors in state court, including Defendant Hodsco Construction, Inc. (“Hodsco”) (Hodsco and the Association are collectively, “Defendants”). When Hodsco sought to have its insurer, Plaintiff Frankenmuth Mutual Insurance Company (“Frankenmuth”) provide its defense, [865]*865Frankenmuth filed this action, and seeks a declaratory judgment that it does not owe Hodsco a duty to defend.

Frankenmuth is a Michigan Corporation with its principal place of business in that State. The Association and Hodsco are both Illinois corporations, and both have their principal places of business in Illinois. There is more than $75,000 in controversy in the underlying litigation; accordingly, the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). Before the Court are Franken-muth’s and Hodsco’s cross-motions for judgment on the pleadings, brought pursuant to Federal Rule of Civil Procedure 12(c), For the following reasons, Franken-muth’s motion is denied and Hodsco’s motion is granted; the’ Court finds that Frankenmuth does owe Hodsco a duty to defend.

I. BACKGROUND

A. The Underlying State Court Litigation

Kimball Hill, Inc. (“Kimball Hill”) was a residential real estate developer. At some point in 2002, Kimball Hill started development of a 154-unit town home complex called Tower Crossing, which was located in Glenview, Illinois, at the site of the former Glenview Naval Air Station. The Association was subsequently formed to govern the common elements of Tower Crossing and its residents.

To build Tower Crossing, Kimball Hill subcontracted with several firms, including Hodsco. Specifically, Kimball Hill hired Hodsco to build masonry—and concrete-block demising walls for the individual units. Kimball Hill, Hodsco, and the other subcontractors hired by Kimball Hill constructed the Tower Crossing units throughout 2002 and 2003.

In November 2005, Tower Crossing’s homeowners assumed control of the Association, via a board of directors. Some time after control of the Association was ceded to the homeowners, the Association discovered numerous defects in Tower Crossing’s construction. This discovery culminated in the Association filing suit against several subcontractors, including Hodsco. See Tower Crossing Condominium Assoc., et al. v. Prate Sheet Metal, Inc., et al., 15 L 9475 (Cir. Ct. Cook Cnty. Sept. 16, 2015) [hereinafter the “State Court Litigation”], Ex. A to Compl. Declaratory J. As the allegations pertain to Hodsco, the Association alleges that, due to Hodsco’s' misfeasance:

“[P]arapet balconies lack and/or were constructed with improperly installed flashing and coping; roof saddle roofing membranes were improperly'integrated with chimneys and parapet walls; there was or may have been excessive clogging of the drainage cavity (air space) with mortar between the exterior brick wythe and wood frame structure; masonry chimneys contained defective flashing and/or are not flashed; punched windows were defectively flashed and/or installed; coping was defectively flashed; the rear patio parapet to wall intersections were defectively flashed; concrete chimney caps were defectively flashed or were not flashed; concrete chimney caps were defectively sloped; [and] through-wall masonry flashing at floor line shelf angles was defective.”

Compl. Declaratory J, ¶ 18 (quoting State Court Litigation, Third Am. Compl. ¶¶29, 31) (internal formatting structures omitted). The Association alleges further that as a result of the above construction defects:

“[S]ome or all of the Defects caused sudden and calamitous water infiltration and/or mold growth’ within the interior spaces of [the] Homes, which has damaged [the] Homes (including elements of the Homes separate and apart from the [866]*866defective elements), interior finishes within [the] Homes and personal property of Homeowners located within [the] Homes (collectively “Property Damage”). In some instances, during periods of rain, rapidly infiltrating water cascaded into interior portions of [the] Homes and fell from ceilings and/or other surfaces creating the equivalent of a waterfall within the Home.”

Compl. Declaratory J. ¶ 19 (quoting State Court Litigation, Third Am. Compl. ¶ 82). The complaint in the State Court Litigation does not allege that Hodsco’s construction defects caused bodily injury to any individuals. At some point, Hodsco gave Frankenmuth notice of the claim filed against it (i.e. the State Court Litigation), and , asked Frankenmuth to honor its contractual duty to defend Hodsco in that action.

B. The Contract Between Frankenmuth and Hodsco

From December 31, 2000 until December 31, 2003 (the “Policy Period”), Hod-sco was insured by Frankenmuth for indemnification against, inter alia, general commercial liability, pursuant to a written insurance policy [hereinafter the “Agreement”]. See Ex. B to Frankenmuth Mut. Ins. Co.’s Mem. Supp. Mot. J. Pleadings 13 [hereinafter “Frankenmuth’s Mot.”]. The Agreement was originally for one year, and was renewed twice, using language that was virtually identical to the original agreement. Several terms and conditions of the Agreement are relevant to the issues in this case.

The Agreement specified that Franken-muth would defend and if necessary, indemnify, Hodsco against any claims of “bodily injury” or “property damage” for which Hodsco is alleged to be liable. See Agreement § I, Coverage A.l.a. This broad grant of indemnity is circumscribed by temporal limitations, outright substantive exclusions from coverage, and techni-, cal definitions.

First, the Agreement only requires Frankenmuth to defend and indemnify Hodsco if the claim arises within the Policy Period. Specifically, the claimed bodily injury or property damage must be “caused by an ‘occurrence’ that takes place in the ‘coverage territory’ ... during the [P]olicy [P]eriod.” Id. § I; Coverage A.l.b.

Second, the Agreement excludes many categories of damage from coverage. There are two policy exclusions that are relevant to this case. First is the “contractual liability” exclusion, which excludes from coverage “ ‘[b]odily injury’ or ‘property damage’ for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement.” Id. § I, Coverage A.2.b. The contractual liability exclusion, itself, has exclusions, the relevant one of which excludes from the exclusion (i.e. brings back within the scope of coverage) liability that Hodsco would have incurred “in the absence of the contract or agreement.” See id. § I, Coverage A.2.b.(l).

The second exclusion relates to “Damage to Property.” Id. § I, Coverage A.2.j. Specifically, the Agreement does not insure property damage, inter alia, to:

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Cite This Page — Counsel Stack

Bluebook (online)
191 F. Supp. 3d 863, 2016 WL 3267313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frankenmuth-mutual-insurance-co-v-hodsco-construction-inc-ilnd-2016.