Great Central Insurance v. Wascomat of America

600 N.E.2d 51, 234 Ill. App. 3d 150, 175 Ill. Dec. 428, 1992 Ill. App. LEXIS 1342
CourtAppellate Court of Illinois
DecidedAugust 25, 1992
Docket1-90-1996
StatusPublished
Cited by1 cases

This text of 600 N.E.2d 51 (Great Central Insurance v. Wascomat of America) 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 Central Insurance v. Wascomat of America, 600 N.E.2d 51, 234 Ill. App. 3d 150, 175 Ill. Dec. 428, 1992 Ill. App. LEXIS 1342 (Ill. Ct. App. 1992).

Opinion

JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, Great Central Insurance Company, sued for a declaratory judgment to determine its duty to defend under a general liability policy. The trial court found that plaintiff had a duty to defend John McDermott, an employee of the named insured, against a third-party claim for contribution, so the court entered summary judgment in favor of McDermott and denied plaintiff’s cross-motion for summary judgment. Plaintiff appeals the trial court’s ruling on the basis that (1) the liability insurance policy excludes coverage of third-party claims against insureds and their employees; and (2) the policy did not cover liability from an underlying claim based on bodily injury to an employee of the named insured.

For reasons discussed below, we find that the trial court’s rulings are correct and we affirm its decision.

In July 1988, Delores Murphy sued Wascomat of America, Washtown Equipment Company, A.B. Electrolux, CTC and Regina McDermott, Murphy’s employer, for injuries she suffered when a washing machine began operating while she was removing a blanket from the machine. The trial court in Murphy’s suit dismissed the claim against Regina McDermott. Murphy was acting in the course of her employment when she was injured. The Workers’ Compensation Act provided Murphy’s sole remedy against her employer. Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.

Wascomat, CTC and A.B. Electrolux filed a third-party complaint against John McDermott, alleging that he, as Regina McDermott’s employee, negligently failed to maintain the washing machine properly, and if the washing machine injured Murphy, his negligence proximately caused the injury. John McDermott tendered defense of the third-party claim to plaintiff, claiming coverage under a policy plaintiff issued to Regina McDermott. Plaintiff assumed defense of the suit under a reservation of right to contest coverage for John McDermott.

Plaintiff then brought this action for a judgment declaring that it had no duty to defend or indemnify John McDermott in the third-party suit. Plaintiff named as defendants all parties to Murphy’s suit against Wascomat and all parties to Wascomat’s third-party action against John McDermott.

The policy lists several exclusions in the section establishing coverage for business liabilities. Exclusion J specifically provides that the insured is not covered for

“injury to any employee of the Insured arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury.”

If Wascomat had sued Regina McDermott for indemnity or contribution, plaintiff would have had no duty to defend because exclusion J specifically denies coverage for such third-party actions for either contribution or indemnification. Midland Insurance Co. v. Bell Fuels, Inc. (1987), 159 Ill. App. 3d 780, 513 N.E.2d 1.

The insurance policy separately expands the persons insured under the policy, and in the section defining persons insured, sets forth the exclusions specifically pertinent to those persons, providing coverage in clause V(AX2) for

“any *** employee of the Named Insured while acting within the scope of his duties as such, but the insurance afforded to such employee does not apply:
a. to *** injury to another employee of the Named Insured arising out of or in the course of his employment.”

This clause, in language similar to exclusion J, provides that Regina’s employees are not covered for personal injury suits filed by another employee. Therefore, if Murphy had sued John McDermott directly, plaintiff would have no duty to defend or indemnify him. However, clause V(A)(2)(a) does not include language similar to the second part of exclusion J, which specifically excludes coverage for third-party suits.

Defendants moved for summary judgment based on this division’s interpretation of virtually identical insurance in Howalt v. Ohio Casualty Insurance Co. (1986), 142 Ill. App. 3d 435, 491 N.E.2d 1207. Although that decision did not discuss the language of exclusion J, defendant presented evidence that the policy at issue in Howalt included language virtually identical to exclusion J. The insurance company in Howalt apparently made no argument that exclusion J applied to defeat Howalt’s claim for coverage. The insurer relied solely on the language of the persons insured clause, which was virtually identical to clause V(A)(2)(a) here. This court in Howalt held that clause V(A)(2)(a) did not exclude coverage for third-party suits based on injury to a co-worker, and therefore, the insurer had a duty to defend its insured’s employee in a third-party action filed against that employee. Howalt, 142 Ill. App. 3d at 440-41, 491 N.E.2d at 1211.

Plaintiff contends that exclusion J applies to all insureds under the contract, including John McDermott. In all of the cases plaintiff cites, the insured’s injured employee sued another party who, in turn, sued the named insured, the employer, for contribution. (See Midland, 159 Ill. App. 3d 780, 513 N.E.2d 1; Unigard Insurance Co. v. Whitso, Inc. (1990), 195 Ill. App. 3d 740, 553 N.E.2d 59; Reliance Insurance Co. v. Nick J. Giannini, Inc. (1987), 158 Ill. App. 3d 657, 511 N.E.2d 755; Aetna Casualty & Surety Co. v. Beautiful Signs, Inc. (1986), 146 Ill. App. 3d 434, 496 N.E.2d 1229.) Defendants agree that exclusion J applies to preclude coverage for a third-party suit against the named insured, Regina McDermott, John McDermott’s employer. Plaintiff cites no case which determines whether a general exclusion applies in the face of a separate specific exclusion that repeats only one part of the general exclusion. This court in Howalt decided that the language plaintiff used in clause V(A)(2)(a) does not exclude coverage for third-party actions.

Plaintiff seeks to distinguish Howalt on grounds that in that case the insurer apparently conspired with the named insured to exclude coverage for insured’s employee. This court in Howalt did not mention collusion in its discussion of the meaning of the persons insured clause and its exclusions. While the court found the insurer estopped from contending that Howalt was not an employee of the named insured, it did not find the insurer estopped from denying coverage on the basis of policy exclusions.

However, plaintiff notes correctly that the insurance company in Howalt did not argue that the general exclusion clause, parallel to ex-elusion J in this case, precluded coverage for the third-party claim against insured’s employee.

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Bluebook (online)
600 N.E.2d 51, 234 Ill. App. 3d 150, 175 Ill. Dec. 428, 1992 Ill. App. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-central-insurance-v-wascomat-of-america-illappct-1992.