Great American Insurance v. West Bend Mutual Insurance

723 N.E.2d 1174, 311 Ill. App. 3d 534, 243 Ill. Dec. 573, 2000 Ill. App. LEXIS 13
CourtAppellate Court of Illinois
DecidedJanuary 11, 2000
Docket1-98-2023
StatusPublished
Cited by8 cases

This text of 723 N.E.2d 1174 (Great American Insurance v. West Bend Mutual Insurance) 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
Great American Insurance v. West Bend Mutual Insurance, 723 N.E.2d 1174, 311 Ill. App. 3d 534, 243 Ill. Dec. 573, 2000 Ill. App. LEXIS 13 (Ill. Ct. App. 2000).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

This case involves construction of an insurance policy. Plaintiff, Great American Insurance Company, and defendant, West Bend Mutual Insurance Company, both issued policies insuring Sundance Homes, Inc., against some forms of liability that might arise from construction work. A worker injured during construction sued Sun-dance for violation of the Structural Work Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Great American settled with the worker then brought this lawsuit against West Bend, seeking to recover part of the amount it paid in settlement of the worker’s claim. The trial court granted West Bend summary judgment. Great American appeals.

In 1988 Sundance, a general contractor, subcontracted with Lenny Szarek, Inc., for carpentry work on a homebuilding project in Stream-wood, Illinois. In the subcontract Szarek promised to purchase comprehensive general liability insurance naming Sundance as an additional insured. Szarek purchased that insurance from West Bend. The policy provided:

“It is agreed that [Sundance] is added to this policy as an additional insured. That entity shall be covered for all liabilities for bodily injury, property damage or death that are imputed to it as a result of the actions or conduct of [Szarek], ***
This endorsement provides no coverage to the additional insured for liabilities arising out of the claimed negligence of the additional insured, or out of negligence of parties other than [Szarek].”

Szarek also purchased worker’s compensation insurance from Casualty Insurance Company.

In February 1989 Rondal Bass suffered injuries while working as Szarek’s employee. Casualty paid Bass $165,239.15 in worker’s compensation. Bass sued Sundance, alleging that it violated the Act by failing to ensure that walls and trusses had adequate bracing. Sun-dance asked both insurers to defend. Upon reviewing the complaint, West Bend declined on grounds that liability under the Act could not qualify as liability “imputed to [Sundance] as a result of the actions or conduct of [Szarek].”

West Bend sued for a declaration of the rights of the parties under the insurance contract. The trial court found West Bend had a duty to defend. On appeal we affirmed, finding the allegations of Bass’ complaint sufficient to “give[ ] rise to the possibility of a recovery under the policy.” West Bend Mutual Insurance Co. v. Sundance Homes, Inc., 238 Ill. App. 3d 335, 337, 606 N.E.2d 326 (1992). We further found West Bend’s interpretation of the liabilities “ ‘imputed *** as a result of’ ” Szarek’s conduct to be “ ‘strained and narrow.’ ” West Bend, 238 Ill. App. 3d at 337-38. Pursuant to our decision, West Bend and Great American shared the costs of defense.

In 1994 Great American and Bass settled the lawsuit. Casualty accepted $40,000 in exchange for the release of its worker’s compensation lien on the recovery. But West Bend refused to split the settlement.

Great American sued for a judgment declaring the rights of the parties under West Bend’s policy. In the complaint Great American alleged that it sent West Bend copies of statements given by witnesses to the accident, in which the witnesses allegedly said that an employee of Szarek removed a brace supporting the structure on which Bass stood, and the removal of that brace caused Bass to fall. West Bend admitted that Great American sent statements from witnesses but denied the substance of the alleged statements. West Bend also answered that Great American did not accurately summarize the state-merits. Great American provided only transcripts of interviews with the unsworn witnesses, not depositions or affidavits.

West Bend admitted the essential allegations of the complaint and stipulated that Great American paid a fair amount for the settlement. Then West Bend moved for summary judgment, arguing that it owed no part of the settlement because liability under the Act could not qualify as liability imputed to Sundance as a result of Szarek’s conduct.

The trial court agreed and added that the cause of the accident remained undetermined. Nonetheless, the court held that “[t]he money Great American paid in settlement arose solely from the conduct of its insured[,] Sundance.” The trial court granted West Bend’s motion for summary judgment.

This court reviews summary judgments de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). We accord the terms of an insurance policy their plain meanings, and we construe limitations on coverage strongly against the insurer. National Union Fire Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 122, 632 N.E.2d 1039 (1994). “[C]ourts should be quick to construe the policy in favor of coverage so that the insured is not deprived of a benefit for which the insured paid.” Dash Messenger Service, Inc. v. Hartford Insurance Co., 221 Ill. App. 3d 1007, 1010, 582 N.E.2d 1257 (1991).

Great American pled that Szarek’s employees negligently removed the bracing, causing Bass to fall. West Bend does not dispute the adequacy of the allegations to show that Sundance’s liability arose “as a result of” the acts of Szarek, within the meaning of the insurance policy. West Bend contends only that the verb “imputed” adds a distinct, further constraint on the scope of the insurance and the liability here is not “imputed” to Sundance as a result of Szarek’s acts. Liability for negligence may be imputed where “the person to whom the negligence is imputed *** had a legal right to control the action of the person actually negligent. Negligence in the conduct of another will not be imputed to a party if he did not authorize such conduct, participate therein, or have the right or power to control it.” Johnson v. Turner, 319 Ill. App. 265, 280, 49 N.E.2d 297 (1943). In Brooks v. Snyder, 302 Ill. App. 432, 436, 24 N.E.2d 55 (1939), the court held:

“ ‘Where an owner is riding in an automobile which is being driven by another in an improper manner, and the evidence does not show a contractual surrender nor an abandonment of the owner’s right to control, the inference is warranted that the owner knew of and permitted the improper operation, and *** the driver’s negligence is imputed to him ***.’ ”

Liability under the Act derives in part from the liable party’s right to control potentially dangerous activities at the construction site.

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Cite This Page — Counsel Stack

Bluebook (online)
723 N.E.2d 1174, 311 Ill. App. 3d 534, 243 Ill. Dec. 573, 2000 Ill. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-american-insurance-v-west-bend-mutual-insurance-illappct-2000.