MHM Correctional Services, Inc. v. Evanston Insurance Co.

2021 IL App (1st) 200552-U

• Court: Appellate Court of Illinois
• Decided: February 23, 2021
• Docket: 1-20-0552
• Status: Unpublished

Opinion

2021 IL App (1st) 200552-U

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

SECOND DIVISION February 23, 2021 No. 1-20-0552 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

MHM CORRECTIONAL SERVICES, INC., ) CENTURION OF MINNESOTA, LLC, CENTURION ) OF MISSISSIPPI, LLC, and MASSACHUSETTS ) PARTNERSHIP FOR CORRECTIONAL ) Appeal from the HEALTHCARE, LLC, ) Circuit Court of ) Cook County Plaintiffs, ) ) No. 15 CH 18000 v. ) ) The Honorable EVANSTON INSURANCE COMPANY, ) Sophia H. Hall, ) Judge Presiding. Defendant-Appellant ) ) (MHM Correctional Services, Inc., and Massachusetts ) Partnership for Correctional Healthcare, LLC, Plaintiffs- ) Appellees). )

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Pucinski and Cobbs concurred in the judgment.

ORDER

¶1 Held: Insurance policy’s language imposed on insurer a duty to defend in underlying class-action lawsuits brought by prisoners seeking declaratory and injunctive relief concerning medical and mental health services received while imprisoned, regardless of whether such lawsuits sought monetary damages.

¶2 This interlocutory appeal involves the questions of whether the defendant, Evanston No. 1-20-0552

Insurance Company (Evanston), owes duties to defend: (1) plaintiff MHM Correctional Services,

Inc. (MHM), the Alabama Department of Corrections (Alabama DOC), and its commissioners in

an underlying lawsuit, Dunn et al. v. Thomas et al., No. 2:14-cv-00601-MHT-TFM (M.D. Ala.)

(Dunn lawsuit); and (2) plaintiff Massachusetts Partnership for Correctional Healthcare, LLC

(MPCH), the Massachusetts Department of Correction (Massachusetts DOC), or certain of its

employees or officials in two underlying lawsuits, Briggs, et al. v. Massachusetts Department of

Correction, et al., No. 1:15-cv-40162-GAO (D. Mass.) (Briggs lawsuit), and Paszko, et al. v.

O’Brien, et al., No. 1:15-cv-12298-NMG (D. Mass.) (Paszko lawsuit). 1 All three of these

underlying lawsuits are purported class actions by and on behalf of incarcerated individuals that,

generally speaking, seek injunctive relief to bring about changes in the medical or mental health

care they receive while imprisoned. For the reasons that follow, we affirm the trial court’s

declaratory judgment that Evanston owed a duty to defend in all three underlying lawsuits.

¶3 I. BACKGROUND

¶4 Plaintiffs MHM and MPCH are providers of healthcare services within correctional

institutions. During the time periods relevant to this case, Evanston issued two policies of

insurance, and MHM and MPCH were named insureds under these policies. The relevant coverage

part of the policies is referred to in the policy as the “Locum Tenens and Contract Staffing

Professional Liability Insurance Coverage Part” and in some of the endorsements as “Correctional

Healthcare Professions Professional Liability Insurance Coverage Part.” The relevant provisions

of the two policies are identical in all material aspects, and thus we will refer simply to “the policy.”

¶5 A. MHM’s contract with the Alabama DOC and the Dunn lawsuit

1 Plaintiffs Centurion of Minnesota, LLC, and Centurion of Mississippi, LLC, are not parties to this appeal. Also, the action pending in the trial court involves three additional underlying lawsuits that are not at issue in this appeal.

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¶6 From 2013 to 2016, MHM had a contract with the Alabama DOC to develop, implement, and

manage a system to provide comprehensive mental health care to inmates within its custody. That

contract required MHM to name the Alabama DOC as an additional insured in its medical

malpractice liability insurance. It additionally provided that MHM would “indemnify and hold

harmless” the Alabama DOC and its officers and employees “from and against any and all loss or

damages *** for liability claimed against or imposed upon the [Alabama DOC] because of bodily

injury *** arising out of or as a consequence of” the breach of any contractual duty or negligence

by MHM or its agents in the performance of the contract. The indemnity and hold-harmless

provision did “not extend to any liability caused by the negligence of the [Alabama DOC] or its

employees.”

¶7 In 2014, the Alabama DOC and two of its commissioners were named as defendants in the

Dunn lawsuit, a proposed class action filed by and on behalf of prisoners within the custody of the

Alabama DOC. The operative third amended complaint in that case alleged that the Alabama DOC

and its commissioners were failing to provide constitutionally adequate medical and mental health

care to individuals within the custody of the Alabama DOC. The allegations of the operative

complaint, which in total comprise 456 paragraphs spanning 138 pages, are summarized in the

introductory paragraphs as follows:

“3. Because of the defendants’ deliberate indifference to the obvious medical

needs of the persons in their custody, plaintiff prisoners go for months or years without

appropriate diagnoses of medical conditions. Numerous prisoners have died from a failure

to treat medical conditions from cancer to diabetes to hepatitis. Others have required

emergency surgery or lost the use of legs, arms or eyes, after having been left to suffer with

untreated symptoms for lengthy periods. Prisoners with mental illnesses or serious

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psychological problems are entirely denied mental health care or provided only with

medication with little or no medication management, follow-up, or concern for side effects,

some of which are debilitating. Mental health care other than medications is nearly non-

existent. *** [The commissioner defendants] violate the prohibition on Cruel and Unusual

Punishments in the Eighth Amendment to the Constitution of the United States.

4. Prisoners, who do not want to take psychiatric medication, often because

they are experiencing serious side effects, are forced to take the medication without any

regard for due process. If they refuse, they may be beaten, placed in segregation or both.

*** [The commissioner defendants] violate the Due Process Clause in the Fourteenth

Amendment to the Constitution of the United States as it relates to mentally ill prisoners’

rights to bodily integrity.

***

7. Plaintiffs seek declaratory and injunctive relief to compel [the defendants]

to provide constitutionally adequate medical and mental health care to all prisoner plaintiffs

and the class members they represent, to desist from medicating mentally ill prisoners

against their will without due process, and to comply with the [Americans with Disabilities

Act (‘ADA’)] and [section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794 (2012)].”

MHM was not named as a defendant in the Dunn lawsuit, but it is referenced in the following

allegation of the third amended complaint:

“234. When [the Alabama DOC] issued its request for proposals for a mental

health services contract in 2013, it identified the minimum staffing needs from the provider

to be 144.95 full-time equivalent employees. Under the current contract, MHM

Correctional Services (‘MHM’) is not providing even this inadequate number of mental

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health staff. The staffing provided under the new MHM contract is just 126.5 full-time

equivalent employees.”

¶8 The third amended complaint goes on to allege multiple causes of action. Among these are

allegations that the defendants’ policies and practices have subjected the plaintiffs and the plaintiff

class “to a substantial risk of serious harm and injury from inadequate medical care in violation of

42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments to the U.S. Constitution.” It also

alleges that the commissioner defendants’ policies and practices have subjected certain plaintiffs

and a “mental health subclass,” respectively, to “a substantial risk of serious harm and injury from

inadequate mental health treatment in violation of 42 U.S.C. § 1983 and the Eighth and Fourteenth

Amendments,” and to a deprivation “of their due process rights by involuntarily medicating

prisoners in violation of the Fourteenth Amendment.”

¶9 The prayer for relief to the third amended complaint does not expressly request any form of

monetary damages. It requests certification of a class under Federal Rule of Civil Procedure

23(b)(1) and (b)(2) (eff. Dec. 1, 2009). It also requests in pertinent part that the court order the

defendants “to develop and implement *** a plan to eliminate the substantial risk of serious harm”

that the plaintiffs and the class “suffer due to inadequate medical and mental health care.” It

requests that this plan include, at a minimum, (1) staffing sufficient to provide prisoner plaintiffs

and the class with timely access to qualified and competent clinicians, (2) policies and practices

that provide timely access to health care, (3) policies and practices that reliably screen for medical,

dental, and mental health conditions requiring treatment, (4) timely and competent responses to

health care emergencies, (5) timely prescription and distribution of medications and supplies, (6)

timely access to competent care for chronic diseases, (7) basic sanitary conditions that do not

promote the spread of disease or infections, (8) timely access to treatment for serious mental

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illness, (9) quality assurance to improve outcomes and identify errors and deficiencies, and (10)

appropriate accommodations for individuals with disabilities. The complaint also seeks an award

of attorney fees, costs, and litigation expenses under 42 U.S.C. § 1988 (2012). Finally, the prayer

for relief requests that the court “[a]ward such other and further relief as the Court deems just and

proper.”

¶ 10 Upon being sued in the Dunn lawsuit, the Alabama DOC tendered its defense and the defense

of its two commissioners to Evanston, pursuant to MHM’s contractual requirement to indemnify

and hold harmless the Alabama DOC and its officers. Evanston initially defended MHM, the

Alabama DOC, and its commissioners in the Dunn lawsuit under a reservation of rights. In 2015,

Evanston’s attorneys informed MHM that it was withdrawing its defense of any of the defendants

in the Dunn litigation.

¶ 11 B. Briggs and Paszko lawsuits

¶ 12 From 2013 to 2018, MPCH had a contract with the Massachusetts DOC to provide a

comprehensive program of medical, dental, and mental health services to inmates and civilly-

committed individuals within the care and custody of the Massachusetts DOC. That contract

provided that MPCH was to name the Massachusetts DOC as an additional insured in its

professional liability insurance. It also provided that neither party “shall act as an employee or

agent of the other” in the performance of their obligations under the contract. A 2014 amendment

to the contract added a provision whereby MPCH agreed to indemnify and hold harmless the

Massachusetts DOC and its agents, officers, and employees from “any and all claims, liabilities

and costs for any personal injury *** or other damages that the State may sustain which arise out

of or in connection with [MPCH’s] performance of a Contract.”

¶ 13 In 2015, the Briggs lawsuit was filed, naming MPCH, the Massachusetts DOC, and six of its

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officials as defendants. The plaintiffs and the proposed class in the Briggs lawsuit are individuals

who are deaf or hard of hearing within the custody of the Massachusetts DOC. They allege that

the defendants have discriminated against them in violation of federal law by denying them

adequate, effective, and reliable means of communication. Pertinent to this appeal, their complaint

alleges that these discriminatory policies and practices by the defendants have resulted in prisoners

who are deaf or hard of hearing being “[e]xcluded from full participation in medical, mental health,

and counseling services and programs offered by the [Massachusetts DOC] and medical contractor

Massachusetts Partnership for Correctional Healthcare (‘MPCH’).” It alleges that “[the

Massachusetts DOC] and MPCH have refused to provide medically required hearing aids to deaf

and hard of hearing prisoners” and failed “to fix broken hearing devices promptly.” It alleges that

MPCH is responsible for arranging interpretation services for deaf and heard of hearing prisoners

to communicate accurately and effectively with medical staff but that such services are rarely if

ever provided to prisoners who need them.

¶ 14 The complaint includes nine causes of action against various defendants. One of the causes

of action is that all defendants have violated the rights of the plaintiffs “to be free from cruel and

unusual punishment, as protected by the Eighth and Fourteenth Amendments to the United States

Constitution, as enforceable through 42 U.S.C. § 1983, by being deliberately indifferent to

Plaintiffs’ serious medical needs,” through the failure to provide interpretive services and assistive

devices during medical and mental health treatment. The prayer for relief in the complaint does

not expressly request any form of monetary damages. It prays for a class to be certified under

Federal Rule of Civil Procedure 23(b)(2) (eff. Dec. 1, 2009). It also in pertinent part requests that

the court “[e]njoin the Defendants from refusing to provide the proper interpretive services, TDD

[(telecommunications devices for the deaf)], videophones, and other assistive devices that are

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required for deaf and hard of hearing prisoners to fully participate in and benefit from the programs

and services offered by these public entities, and required to ensure their physical safety.” It also

requests an award of attorney fees and costs. Finally, the prayer for relief requests the court to

“[a]ward Plaintiffs such other and further relief as the Court deems just and proper.”

¶ 15 Also in 2015, the Paszko lawsuit was filed, naming MPCH and the commissioner of the

Massachusetts DOC as defendants. The complaint in the Paszko lawsuit alleges that the case “is a

class action that seeks declaratory and injunctive relief under 42 U.S.C. § 1983 for violation of the

Eighth Amendment as a result of the deliberate indifference of the defendants *** to the serious

medical needs of the plaintiffs and members of the class, who are infected with Hepatitis C.” The

complaint alleges that a major advancement in the treatment of Hepatitis C occurred in 2014, with

the introduction of medication regimens that have near-perfect success rates, far fewer side effects,

and a much shorter duration, but the “defendants have failed and refused to provide this new

treatment to plaintiffs and the members of their class.” The complaint alleges that by failing and

refusing to provide this new treatment, they are violating the rights of the plaintiffs and the class

to be free from cruel and unusual punishment as guaranteed by the Eighth and Fourteenth

Amendments to the United States Constitution and by 42 U.S.C. § 1983.

¶ 16 Again, the prayer for relief does not expressly request any form of monetary damages. In

pertinent part it requests that the court “[i]ssue preliminary and permanent injunctions ordering

defendants to implement and adhere to a comprehensive treatment protocol that includes timely

and adequate screening of [Massachusetts] DOC prisoners, timely evaluation, staging, and

monitoring of Hepatitis C prisoners, timely treatment with the most effective medications, timely

and adequate treatment of side effects to ensure that the Hepatitis C treatment is successful, and

elimination of unjustified exclusions from or denials of treatment.” It requests attorney fees and

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costs and that the court “[g]rant such other and further relief as this Court considers just and

¶ 17 In letters dated December 21, 2015, and January 22, 2016, Evanston disclaimed the duty to

defend MPCH or any other person or entity in the Paszko and Briggs litigation.

¶ 18 C. Declaratory Judgment Action

¶ 19 In the operative first amended complaint of the instant action for declaratory judgment, MHM

and MPCH sought in pertinent part a declaratory judgment that Evanston had a duty to defend

MHM, the Alabama DOC, and its officials in the Dunn litigation and a duty to defend MPCH and

officials of the Massachusetts DOC in the Paszko and Briggs litigation. Evanston filed an answer

to the first amended complaint, and MHM and MPCH then filed a motion for summary judgment

regarding Evanston’s duty to defend.

¶ 20 In their motion for summary judgment, MHM and MPCH argued generally that the policies

required Evanston to defend “ ‘any Claim to which coverage under this Coverage Part applies,’ ”

that “ ‘Claim’ ” was defined to include an insured’s receipt of a “ ‘demand for money damages or

services involving Professional Healthcare Services’ ” or “ ‘service of suit *** involving

Professional Healthcare Services,’ ” and that the class action lawsuits constituted both demands

for services and the service of a suit involving professional healthcare services, thereby triggering

Evanston’s duty to defend. MHM and MPCH argued that the policies required Evanston to defend

claims demanding services regardless of whether such claims also sought money damages (or that

the policies were at least was ambiguous on this point), but in any event it was possible for the

plaintiffs in the underlying lawsuits to seek money damages because of the complaints’ prayers

for relief requesting “ ‘other and further relief as the Court deems just and proper.’ ”

¶ 21 Evanston responded to the motion for summary judgment by arguing that the policies’

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contractual liability exclusion barred coverage of the state departments of corrections and their

officials in the underlying lawsuits. Evanston also argued that it was necessary for the underlying

lawsuits to seek “damages” before its defense or indemnity obligations were triggered, and the fact

that the lawsuits sought only declaratory and injunctive relief and did not seek money damages

meant that Evanston had no duty to defend. Evanston further argued that the state departments of

correction did not qualify as additional insured under the policies.

¶ 22 The trial court held multiple hearings on the matter and requested additional submissions by

the parties pertaining to various issues. Ultimately, on September 29, 2017, the trial court entered

an order partially granting summary judgment and declaring “that Evanston has a duty to defend

MHM Insureds” in the Briggs and Paszko litigation “based on the Court’s finding that the

underlying complaints’ prayer for other relief constitutes a claim for damages under the Evanston

policies.” On August 30, 2018, the trial court entered an order further granting summary judgment

and finding that Evanston had a duty to defend the Alabama DOC in the Dunn litigation because

“there is potential coverage of [the Alabama DOC] as an additional insured and the underlying

complaint does not support application of the [contractual liability] Exclusion.”

¶ 23 Evanston then filed a motion for reconsideration of the trial court’s order of September 29,

2017. The trial court denied this motion without prejudice and ordered Evanston to filed a renewed

motion for reconsideration, specifically addressing whether the underlying complaints contained

allegations to support a cause of action for damages, whether the definition of “damages” in the

Evanston policies is ambiguous or otherwise encompasses monetary costs to comply with

injunctive relief, and whether the allegations from one of the other underlying lawsuits not

involved in this appeal could be used to infer the potential to infer damages in the Briggs and

Paszko cases. After further briefing to address these issues, the trial court denied Evanston’s refiled

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renewed motion for reconsideration on July 11, 2019. On February 26, 2020, the trial court entered

an order finding no just reason for delaying the enforcement or appeal of its orders of September

29, 2017, August 30, 2018, and July 11, 2019, granting the declaratory judgment that Evanston

owed a duty to defend in the Dunn, Briggs, and Paszko litigation. Ill. S. Ct. R. 304(a) (eff. Mar. 8,

2016). This appeal then followed.

¶ 24 II. ANALYSIS

¶ 25 A. Choice of Law

¶ 26 Before addressing the merits, we address whether we must apply the law of Virginia instead

of the law of Illinois to resolve this coverage dispute. In the trial court, both parties cited to the law

of both states, on the basis that Virginia is the headquarters of MHM, the policies were delivered

there, and it was the site of the last act giving rise to a valid contract between the parties. However,

both parties agreed that despite doing so, no conflict existed between the law of the two states.

Evanston continues to cite the law of both states on appeal, whereas MHM and MPCH argue that

there is no reason to apply Virginia law because no conflict exists between the law of the two

states. A choice-of-law determination is required only when a difference in law will make a

difference in the outcome. Bridgeview Health Care Center, Ltd. v. State Farm Fire & Casualty

Co., 2014 IL 116389, ¶ 14. In the absence of a conflict, Illinois law will be applied as the law of

the forum. Chicago Board Options Exchange, Inc. v. International Securities Exchange, L.L.C.,

2012 IL App (1st) 102228, ¶ 44; Dearborn Insurance Co. v. International Surplus Lines Insurance

Co., 308 Ill. App. 3d 368, 373 (1999). A party seeking a choice-of-law determination bears the

burden of demonstrating a conflict, i.e., that a difference in the law exists that will make a

difference in the outcome of the case. Bridgeview Health Care Center, 2014 IL 116389, ¶ 14.

Here, because neither party argues that a conflict exists between the law of the two states, let alone

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one that is outcome determinative, this court applies Illinois law as the law of the forum.

¶ 27 B. Law Regarding the Determination of Insurer’s Duty to Defend

¶ 28 “It is settled law in Illinois that an insurer has two duties to an insured when a lawsuit is filed

that may trigger the insurer’s policy coverage: the duty to defend and the duty to indemnify.” Aetna

Casualty & Surety Co. v. Prestige Casualty Co., 195 Ill. App. 3d 660, 664 (1990) (citing Zurich

Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23 (1987)). These are separate and distinct

duties, and the duty to defend is broader than the duty to indemnify. Aetna Casualty & Surety Co.,

195 Ill. App. 3d at 664 (citing Conway v. Country Casualty Insurance Co., 92 Ill. 2d 388, 394

(1982)). A principal difference is that the duty to defend will arise whenever the facts of an

underlying complaint fall potentially within the policy’s coverage, whereas the duty to indemnify

will arise only if the facts actually fall within the policy’s coverage. Crum & Forster Managers

Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 398 (1993). Therefore, in a declaratory judgment

action where the issue is whether an insurer has a duty to defend, the court compares the relevant

provisions of the insurance policy to the allegations of the complaint in the underlying lawsuit.

Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010). A duty to defend will be found to exist

if the facts alleged in the underlying compliant fall within, or potentially within, the policy’s

coverage provisions. Id. Both the allegations of the underlying complaint and the policy are

construed in favor of the insured, and any doubts must be resolved in the insured’s favor.

Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 153 (1999).

¶ 29 It is also the law that an insurer’s duty to defend its insured is not dependent upon a duty to

indemnify, but it arises from the expressed undertaking to defend as stated in the insurance

contract. Conway, 92 Ill. 2d at 394; see also Zurich Insurance Co., 118 Ill. 2d at 48; Village of

Lombard v. Intergovernmental Risk Management Agency, 288 Ill. App. 3d 1003, 1009 (1997). As

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with any contract, the parties to an insurance agreement have the power to contractually define the

scope of the insurer’s duty to defend. Village of Lombard, 288 Ill. App 3d at 1009. Determining

the scope of the insurer’s duty to defend thus requires review of the language used in the policy.

Zurich Insurance Co., 118 Ill. 2d at 48; American Standard Insurance Co. v. Basbagill, 333 Ill.

App. 3d 11, 16 (2002).

¶ 30 In interpreting the language of an insurance policy, the court’s role is to ascertain and give

effect to the intentions of the parties as expressed by the words of the policy. Country Mutual

Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311 (2006). To ascertain the intent of the

parties and the meaning of the words used in the policy, the court interprets the policy as a whole,

taking into account the type of insurance for which the parties have contracted, the risks undertaken

and purchased, the subject matter that is insured, and the purposes of the entire contract. Crum &

Forster Managers Corp., 156 Ill. 2d at 391. If the words used in the policy are clear and

unambiguous, they must be given their plain, ordinary, and popular meaning. Central Illinois Light

Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). However, if the language used in the

policy is reasonably susceptible to more than one meaning, it will be considered ambiguous and

strictly construed against the drafter. Id. A contract term is not ambiguous merely because the

parties disagree on its meaning, nor is a term unambiguous where each party insists that the

language unambiguously supports its position. Id. at 153-54. We apply a de novo standard of

review to the question of whether an insurer has a duty to defend. Country Mutual Insurance Co.

v. Dahms, 2016 IL App (1st) 141392, ¶ 35. We may affirm a trial court’s ruling that a duty to

defend exists on any basis supported by the record, regardless of the basis the trial court relied on.

Pekin Insurance Co. v. AAA-1 Masonry & Tuckpointing, Inc., 2017 IL App (1st) 160200, ¶ 21.

¶ 31 C. Is the duty to defend triggered regardless of whether the complaints seek damages?

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¶ 32 In their motion for summary judgment in the trial court, the initial argument of MHM and

MPCH was that Evanston’s duty to defend was triggered in the three underlying class action

lawsuits because the policy required Evanston to defend “any Claim to which coverage under this

Coverage Part applies,” and the underlying class-action lawsuits satisfied the policy’s definition

of “Claim” regardless of whether their complaints sought money damages. MHM and MPCH

alternatively argued that it was possible for the plaintiffs in the underlying class-action lawsuits to

seek money damages because of the complaints’ prayers for relief requesting “other and further

relief as the Court deems just and proper.” The trial court granted summary judgment based upon

this alternative argument, by “finding that the underlying complaints’ prayer for other relief

constitutes a claim for damages under the Evanston policies.” 2 However, because we find the

argument initially advanced by MHM and MPCH to be dispositive, we choose to begin our

analysis there.

¶ 33 The issue before us then is whether Evanston’s duty under the policy “to defend and

investigate any Claim to which coverage under this Coverage Part applies” is triggered as to the

three underlying class action lawsuits on the basis that each complaint constitutes a “Claim” by

being either a “demand *** for services involving Professional Healthcare Services” or a “suit ***

against the Insured involving Professional Healthcare Services,” regardless of whether that

complaint also seeks money damages. MHM and MPCH take the position that Evanston’s duty to

defend is triggered for this reason, and they argue that the policy language does not expressly tie

Evanston’s defense obligation to suits that seek money damages. They argue that the policy

language is at least ambiguous on this point, and therefore the issue must be resolved in their favor.

2 It is evident to us that the trial court devoted tremendous time and effort to resolving the issue of Evanston’s duty to defend in the three cases involved in this appeal and the others not involved in this appeal. However, if the trial court further articulated its reasoning for this ruling on the record beyond this sentence of its written order, the parties have not included the transcript of it in the record on appeal.

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By contrast, Evanston’s position is that the policy’s limitation of the duty to defend to claims “to

which coverage under this Coverage Part applies” refers to claims for which Evanston may

possibly be obligated to pay money under the “Insuring Agreement” of the coverage part, and

because the underlying complaints seek only declaratory and injunctive relief, they are not claims

to which coverage under the relevant coverage part “applies.”

¶ 34 The relevant coverage part is referred to in the policy as the “Locum Tenens and Contract

Staffing Professional Liability Insurance Coverage Part” and in some of the endorsements as the

“Correctional Healthcare Professions Professional Liability Coverage Part.” That coverage part

contains multiple sections, titled “Insuring Agreement,” “Definitions,” “The Exclusions,” and

“Defense, Settlement and Claim Expenses,” among other sections. The “Defense, Settlement and

Claim Expenses” section is modified by a “Self-Insured Retention” endorsement. That

endorsement provides for a self-insured retention of $100,000, which “shall include Damages and

Claim Expenses, whether or not Damages payments are made.” There is no dispute in this case

that the self-insured retention has been exhausted.

¶ 35 As modified by endorsement, the “Defense, Settlement and Claim Expenses” section of the

coverage part provides first for defense of claims within the self-insured retention by a third-party

administrator and then for defense by Evanston following exhaustion of the self-insured retention.

The pertinent language from that provision states:

“Defense, Investigation and Settlement of Claims: It shall be the duty of Western

Litigation, Inc., hereinafter referred to as “Third Party Administrator”, at the first Coverage

B. Named Insured’s [i.e., MHM or MPCH’s] own expense to defend, investigate and settle

any Claim against the Insured seeking Damages to which this insurance applies which is

within the Self-Insured Retention.

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Upon exhaustion and payment of the Self-Insured Retention, the Company [i.e.,

Evanston] shall have the right and duty to defend and investigate any Claim to which

coverage under this Coverage Part applies ***.”

The coverage part defines “Claim” as follows:

“Claim means the insured’s receipt of:

1. A demand for monetary damages or services involving Professional Healthcare

Services; or

2. The service of suit or institution of arbitration proceedings against the Insured

involving Professional Healthcare Services.”

“Professional Healthcare Services” is then defined to mean “Medical Services,” which is further

defined in relevant part to mean “services *** provided in the medical care or treatment of any

patient” within the provider’s license, certificate, or qualification to practice, as well as “Placement

Services,” which is defined in pertinent part to mean “evaluating, selecting, hiring and contracting

with Healthcare Providers to provide Medical Services for healthcare organizations ***.”

¶ 36 MHM and MPCH argued in trial court and contend on appeal that the complaints in the Dunn,

Briggs, and Paszko cases trigger the duty to defend because each is a “Claim” to which the

coverage part applies. The underlying suits meet this definition, they contend, because each

complaint is a “demand for *** services involving Professional Healthcare Services,” as that term

is defined in the policy. They argue that each complaint demands services by seeking an injunction

from the district court that would compel the underlying defendants to provide certain medical or

mental health care services to the respective plaintiff classes. For the same reasons, they contend

that each of the underlying complaints is also a “suit *** against the Insured involving Professional

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Healthcare Services.” (They note that “Insured” also means to an “Additional Insured,” as

discussed in more detail below.) They argue that there is no requirement in the plain language of

the policy that a “Claim” must seek damages in order to trigger the duty to defend, and interpreting

it to require this would render meaningless the phrases “or services” and “suit *** involving

Professional Healthcare Services,” which are part of the policy’s definition of “Claim.” At the very

least, they argue, the policy’s requirement that Evanston defend “any Claim to which coverage

under this Coverage Part applies” is ambiguous and therefore must be construed in their favor.

¶ 37 Evanston’s position is that the argument by MHM and MPCH overemphasizes the word

“Claim” in the defense provision and ignores the phrase “to which coverage under this Coverage

Part applies.” It contends that, regardless of whether each complaint in the Dunn, Briggs, and

Paszko cases asserts a “Claim” under the policies, Evanston’s duty to defend arises only if a Claim

is one “to which coverage under this Coverage Part applies.” Evanston argues that the critical word

in that provision is “applies,” which the dictionary defines as “[t]o put into action.” See American

Heritage Dictionary 121 (2d college ed. 1982). Evanston argues that coverage under the policies

is “put into action” only with respect to claims for which it must potentially pay money under the

“Insuring Agreement” of the coverage part. The “Insuring Agreement” provides in pertinent part

that Evanston “shall pay on behalf of the Insured all sums in excess of the Self-Insured Retention

amount stated in the Declarations, which the Insured shall become legally obligated to pay as

Damages as a result of Claims ***.” 3 Evanston argues that, because the complaints in the

underlying cases seek only declaratory and injunctive relief and not money damages, there is no

possibility that Evanston will pay money under the “Insuring Agreement,” meaning the policy is

3 Although “Damages” is a defined term in the policy, its definition only becomes relevant if we must resolve whether a claim for injunctive relief constitutes a claim seeking “Damages.”

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not “put into action” such that it “applies” to the underlying class-action complaints or triggers the

duty to defend. It argues that, by recognizing that the policy provides a defense conditioned on

coverage applying under the Insuring Agreement, this court would be giving effect to the plain

language of the defense provision.

¶ 38 Evanston contends that Illinois courts recognize that a determination of whether an insurance

policy “applies” begins with the terms of a policy’s insuring agreement. It cites Madison County

Mutual Automobile Insurance Co. v. Goodpasture, 49 Ill. 2d 555, 556 (1971), in which the court

looked to the insuring agreement where the “sole issue presented [was] whether the insured motor

vehicle coverage applies.” However, the issue in that case was “whether the uninsured motor

vehicle provision of [an] automobile insurance policy is applicable to claims against the uninsured

driver of a named insured’s automobile when the named insured is injured while riding as a

passenger.” Id. The court looked to the insuring agreement of the uninsured motor vehicle coverage

part because the insuring agreement’s terms resolved the question before the court. The court was

not addressing the relationship between a policy’s insuring agreement and its provision concerning

the insurer’s duty to defend an insured. We thus conclude that Madison County Mutual does not

provide support for the argument advanced by Evanston.

¶ 39 Evanston also contends that Illinois courts have declined to consider policy provisions

beyond an insuring agreement where it is found that the insuring agreement does not provide

coverage. It cites Stoneridge Development Co. v. Essex Insurance Co., 382 Ill. App. 3d 731, 756

(2008), in which the court stated that “where the damage does not fall within the policy’s coverage,

there is no need to consider the applicability of any exclusions.” While that case did involve a duty

to defend, the duty to defend provision was included within insuring agreement and the outcome

of the case was thus controlled by the language of the insuring agreement. The “Insuring

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Agreement” stated: “ ‘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 the right and duty to defend any “suit” seeking those damages.’ ” Id. at 733. The insuring

agreement further provided that the insurance applied to “property damage” only if it was caused

by an “occurrence.” Id. The issue in the case was whether cracks that developed in the foundation

of a townhome built by the insureds were caused by an “occurrence” and therefore constituted

“property damage” so as to trigger coverage. Id. at 749. Because of these distinctions, we find that

Stoneridge Development provides no support for Evanston’s argument that a “Claim” must be one

for which it could potentially pay money under the Insuring Agreement to constitute a “Claim to

which coverage under this Coverage Part applies.”

¶ 40 To the extent Evanson is arguing that in all cases a duty to indemnify or pay money under a

policy’s insuring agreement must exist in order for a duty to defend to arise, we reject that

argument. Rather, as we stated above, the law is that “the insurer’s duty to defend its insured is

not dependent upon a duty to indemnify, but arises from the undertaking to defend stated in the

policy.” Conway, 92 Ill. 2d at 394; see also Zurich Insurance Co., 118 Ill. 2d at 48; Village of

Lombard, 288 Ill. App. 3d at 1009. The parties have the power to contractually define the scope

of the insurer’s undertaking to defend its insured. Village of Lombard, 288 Ill. App. 3d at 1009. In

this case, the defense provision is not included within the policy’s insuring agreement, and nothing

in the defense provision expressly incorporates or refers to the insuring agreement.

¶ 41 Having fully considered the relevant policy language, this court agrees with the position

advanced by MHM and MPCH that the Dunn, Briggs, and Paszko complaints each constitute a

“Claim to which coverage under this Coverage Part applies” that Evanston has a duty to defend,

regardless of whether those complaints seek money damages. By seeking an injunction that would

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compel the underlying defendants to take actions to provide certain constitutionally adequate

medical or mental health services to prisoners, increase staffing at prisons to provide greater

medical services, or change prison policies in order to provide additional or different medical or

mental health care, medications, and services, we find that each complaint constitutes a “demand

for *** services involving Professional Healthcare Services” as well as a “suit *** involving

Professional Healthcare Services.” Those clauses in the policy’s definition of “Claim” must be

given effect, and we would improperly nullify them or render them meaningless if we interpreted

“Claim to which coverage under this Coverage Part applies” to mean only one that is a “demand

for monetary damages.” See Thompson v. Gordon, 241 Ill. 2d 428, 442 (2011) (“A court will not

interpret a contract in a manner that would nullify or render provisions meaningless, or in a way

that is contrary to the plain and obvious meaning of the language used.”).

¶ 42 In ascertaining that this was the intent of the parties, we take into account the type of

insurance for which the parties contracted, the risks undertaken and purchased, the subject matter

insured, and the purposes of the contract. Crum & Forster Managers Corp., 156 Ill. 2d at 391.

Here, we are dealing with a policy of professional liability insurance specifically for individuals

and organizations providing healthcare services within correctional institutions. This policy

specifically provides coverage for “Professional Personal Injury,” and it defines that term to

include “an allegation of a civil rights violation pursuant to the Civil Rights Act of 1871 (42 U.S.C.

§ 1983 et seq.) and amendments thereto, provided that such allegation is the result of any patient

receiving Medical Services.” The underlying cases illustrate that such healthcare providers and

organizations are uniquely susceptible to being named as defendants in civil rights lawsuits by

inmates alleging that their eighth amendment rights are being violated by the medical care that is

or is not being provided to them. While most such suits are likely to involve a claim for money

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damages, it is easily foreseeable that some will seek only non-monetary relief. Examples come to

mind in which qualified immunity would clearly bar a claim for money damages but not for

prospective injunctive relief (see County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)),

in which an incarcerated plaintiff may elect to forego the former in the hope of more quickly

obtaining the latter. Considering the nature and purpose of this insurance policy, we believe it was

reasonably contemplated by the parties that the covered healthcare providers could be named as

defendants in civil rights suits by prisoners that demanded healthcare services or otherwise

involved professional healthcare services without necessarily seeking money damages and that

Evanston would defend them in such suits.

¶ 43 Furthermore, although Evanston contends that the critical word of the defense provision is

“applied,” we believe that the critical word is “coverage.” Evanston’s argument does not address

the meaning of “coverage,” but its argument assumes that it means to pay money or indemnify.

The policy does not define the word “coverage.” The current edition of Black’s Law Dictionary

defines “coverage” as “[i]nclusion of a risk under an insurance policy; the risks within the scope

of an insurance policy.” Black’s Law Dictionary 461 (11th ed. 2019). It also gives several

definitions of “risk,” one of which is “[t]he type of loss covered by a policy; a hazard from a

specified source .” Id. at 1589. We note

also that an earlier edition of Black’s Law Dictionary defined “coverage” as “[i]n insurance,

amount and extent of risk contractually covered by insurer. The assumption of risk of occurrence

of the event insured against before its occurrence.” Black’s Law Dictionary 365 (6th ed. 1990).

An Illinois court has likewise defined “coverage” according to that definition as “the amount and

extent of risk contractually assumed by an insurer.” Illinois Farmers Insurance Co. v. Tabor, 267

Ill. App. 3d 245, 252 (1994) (quoting Black’s Law Dictionary 365 (6th ed. 1990)). While we

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recognize that the word “coverage” is frequently used colloquially to refer to an obligation to

indemnify or pay money under an insurance policy, the term actually has a broader meaning than

this. Given the definition of “Claim” in the policy, it appears to us that, when the defense provision

at issue refers to a “Claim to which coverage under this Coverage Part applies,” it is using the word

“coverage” in its broader sense to refer to the risk of a certain kind of event or loss occurring that

is within the scope of the coverage part, not necessarily that Evanston will indemnify or pay money

because of the occurrence of that event or loss.

¶ 44 The structure of the coverage part in its entirety further supports our interpretation of what

the parties reasonably intended by a “Claim to which coverage under this Coverage Part applies.”

The section of the coverage part titled “The Exclusions” uses similar terminology in setting forth

various categories of “Claims” that “[t]his insurance does not apply to.” To give two examples

pertinent to this case, that section states:

“This insurance does not apply to: ***

F. any Claim based upon or arising out of any unlawful discrimination by an

insured; provided, however, this exclusion shall not apply to any civil rights

violation alleged pursuant to the Civil Rights Act of 1871 (42 U.S.C. § 1983 et seq.)

and amendments thereto, provided that such civil rights violation arises out of

Medical Services for which the insured is legally liable.

I. Any Claim based upon or arising out of the liability of others assumed by

the Insured under any contract or agreement, unless such liability would have

attached to the Insured even in the absence of such contract or agreement[.]”

We find that the coverage part’s use of this similar terminology in setting forth categories of

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“Claims” that “[t]his insurance does not apply to” supports our conclusion that the parties intended

the word “coverage” in the defense provision to refer to the risk of certain categories of events or

losses occurring within the scope of the coverage part, not necessarily the payment of money.

¶ 45 Finally, we find support for our interpretation in the fact that the policy’s defense provision

imposes on Western Litigation, Inc., a duty to defend “any Claim against the Insured seeking

Damages to which this insurance applies,” while imposing on Evanston a duty to defend “any

Claim to which coverage under this Coverage Part applies.” (Emphasis added.) When parties to a

contract use different language to address parallel issues, it is reasonable to infer that they intended

this language to mean different things. Lobo IV, LLC v. V Land Chicago Canal, LLC, 2019 IL App

(1st) 170955, ¶ 81. Thus, the parties’ inclusion of the phrase “seeking damages” in the former

provision and omission of it from the latter leads us to the conclusion that the parties did not

reasonably intend that a “Claim to which coverage under this Coverage Part applies” necessarily

had to be one “seeking Damages” in order to trigger Evanston’s duty to defend.

¶ 46 Because we have concluded that the Dunn, Briggs, and Paszko complaints trigger Evanston’s

“duty to defend and investigate any Claim to which coverage under this Coverage Part applies”

regardless of whether they explicitly seek money damages, we have no reason to consider the

parties’ alternative arguments concerning whether the underlying complaints’ general prayers for

“other and further relief as the Court deems just and proper” constitute a request for money

damages.

¶ 47 D. The Contractual Liability Exclusion and Additional Insured Endorsement

¶ 48 Evanston next argues that it has no duty to defend because the contractual liability exclusion

of the professional liability coverage part precludes coverage for the three underlying lawsuits.

That contractual liability exclusion states:

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“This insurance does not apply to:

I. Any Claim based upon or arising out of the liability of others assumed by the

Insured under any contract or agreement, unless such liability would have

attached to the Insured even in the absence of such contract or agreement.”

Evanston argues that this exclusion precludes any duty to defend because MHM and MPCH are

seeking coverage for the potential liability of the Alabama DOC and the Massachusetts DOC in

the underlying class action lawsuits, pursuant to the indemnification agreements in the contracts

between them.

¶ 49 The contracts to which Evanston is referring are the service agreements between MHM and

the Alabama DOC and between MPCH and the Massachusetts DOC. In the former, MHM was

required to name the Alabama DOC as an additional insured in its medical malpractice liability

insurance. MHM additionally agreed that it would “indemnify and hold harmless” the Alabama

DOC and its officers and employees “from and against any and all loss or damages *** for liability

claimed against or imposed upon the [Alabama DOC] because of bodily injury *** arising out of

or as a consequence of” the breach of any contractual duty or negligence by MHM or its agents in

the performance of the contract. That indemnity and hold-harmless provision did “not extend to

any liability caused by the negligence of the [Alabama DOC] or its employees.” Likewise, the

service agreement between MPCH and the Massachusetts DOC provided that MPCH was to name

the Massachusetts DOC as an additional insured in its professional liability insurance. It also

provided that neither party “shall act as an employee or agent of the other” in the performance of

their obligations under the contract. A 2014 amendment to the service agreement added a provision

whereby MPCH agreed to indemnify and hold harmless the Massachusetts DOC and its agents,

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officers, and employees from “any and all claims, liabilities and costs for any personal injury ***

or other damages that the State may sustain which arise out of or in connection with [MPCH’s]

performance of a Contract.”

¶ 50 Evanston argues that the contractual liability exclusion precludes coverage for all three

underlying lawsuits. It points out that MHM is not named as a defendant in the Dunn litigation,

arguing that the complaint alleges no wrongdoing on the part of MHM but seeks relief only based

on the Alabama DOC’s longstanding failure to provide prisoners with services, treatment, and

care. Evanston argues that coverage is barred in the Briggs and Paszko cases because the liability

of MPCH arises solely from the obligations and liabilities that MPCH voluntarily assumed by

entering into the service agreement with the Massachusetts DOC. Evanston contends that MHM

and MPCH contractually assumed the legal obligations of the state departments of correction to

provide prisoners with medical and health care, and MHM and MPCH would have no legal liability

to the underlying prisoner-plaintiffs in the absence of such contracts.

¶ 51 We find that the applicability of the contractual liability exclusion cannot be considered

without reference to the policy’s additional insured endorsement, which also addresses coverage

pertaining to the contractual obligations of MHM and MPCH and, if applicable, affects who is

considered an “Insured” for purposes of the contractual liability endorsement. The additional

insured endorsement for professional liability coverage amends the policy by providing that,

whenever the term is used in the relevant coverage part, “the unqualified word Insured shall also

mean Additional Insured.” That endorsement then goes on to provide:

“Additional Insured means, whenever used in this endorsement:

Any person or organization to whom or to which the Named Insured [i.e., MHM or MPCH]

is obligated by virtue of a valid written contract to provide insurance or indemnity such as

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is afforded by the policy, but only for claims made against the Additional Insured with

respect to professional services rendered by the Named Insured as specified in Item 1. 1. B

of the Declarations [i.e., MHM or MPCH].”

We also find relevant an endorsement to the policy titled “Restriction of Coverage—Scheduled

Contracts,” which provides that “it is hereby understood and agreed that the insurance provided

under this policy shall apply solely to correctional healthcare contracts on file with The Company

[i.e., Evanston] at the time a claim or suit is made to the Insured.” MHM and MPCH additionally

direct our attention to an unrebutted affidavit providing evidence that the “correctional healthcare

contracts” referred to in that endorsement include the service agreements at issue between MHM

and the Alabama DOC and between MPCH and the Massachusetts DOC.

¶ 52 Evanston’s position on this matter is that the state departments of correction do not qualify

as additional insureds for purposes of imposing a duty to defend, because the claims in the

underlying class action lawsuits are not ones made against the state departments of correction

“with respect to professional services rendered by the Named Insured.” Evanston contends that,

rather than arising from professional services rendered by MHM or MPCH, each of the underlying

class action lawsuits arises out of the respective state department of correction’s longstanding and

systemic failure to provide prisoners with adequate and necessary care and to ensure their safety

and wellbeing, failures which exceed the professional services that MHM or MPCH contractually

agreed to provide. Evanston contends that these alleged failures include the intentional and

systemic underfunding of medical and mental health care, the ongoing failure to provide prisoners

with effective treatments, the use of excessive force and violence, and many other wrongs

unrelated to the competency of any medical or mental health services rendered by MHM or MPCH.

¶ 53 We reject Evanston’s argument and conclude that the state departments of correction qualify

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as additional insureds under the endorsement for purposes of the duty to defend. First, we find that

the Alabama DOC and the Massachusetts DOC are both “organization[s] *** to which the Named

Insured [i.e., MHM or MPCH] is obligated by virtue of a valid written contract to provide

insurance or indemnity such as is afforded by the policy.” MHM and MPCH are obligated by their

respective service agreements to name as additional insured and to indemnify and hold harmless

the respective state department of correction with respect to the professional liability coverage as

afforded by the policy, and the evidence demonstrates that these service agreements were on file

with Evanston at the relevant time it issued the policy.

¶ 54 Second, we find that each of the three underlying lawsuits at least potentially asserts a claim

against the respective state department of correction “with respect to professional services

rendered by the Named Insured.” In evaluating this question, we note that this is a broad clause.

Also, we reiterate that we are evaluating a duty to defend, which arises if the alleged facts in the

underlying complaints fall at least potentially within the relevant coverage provisions. Wilson, 237

Ill. 2d at 455. Further, when an insurer has a duty to defend against one claim in a suit, it has a

duty to defend against all claims, even if some of the claims standing alone would be beyond the

scope of the policy. Illinois Tool Works Inc. v. Travelers Casualty & Surety Co., 2015 IL App (1st)

132350, ¶ 44. Thus, although we do not disagree with Evanston that some of the allegations of the

underlying suits “implicate systemic failures by the [state departments of correction], rather than

the specific health care services MHM agreed to provide,” such allegations do not negate the duty

to defend if other allegations in the complaint potentially give rise to such duty.

¶ 55 In the Dunn litigation, the underlying complaint is replete with allegations against the

Alabama DOC to effect that “[p]risoners with mental illnesses or serious psychological problems

are entirely denied mental health care or provided only with medication with little or no medication

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management, follow-up, or concern for side effects, some of which are debilitating. Mental health

care other than medications is nearly non-existent.” This is clearly a claim “with respect to

professional services rendered by” MHM, because the professional services that MHM renders to

the Alabama DOC under the service agreement “encompass all duties required in the management

of a system to deliver comprehensive mental health care to inmates.” Further, although MHM is

not named as a defendant in the Dunn litigation, the underlying complaint does allege the

following:

“234. When [the Alabama DOC] issued its request for proposals for a mental health

services contract in 2013, it identified the minimum staffing needs from the provider to be

144.95 full-time equivalent employees. Under the current contract, MHM Correctional

Services (‘MHM’) is not providing even this inadequate number of mental health staff. The

staffing provided under the new MHM contract is just 126.5 full-time equivalent employees.”

We agree with MHM that this factual allegation constitutes a specific claim against the Alabama

DOC “with respect to professional services rendered by” MHM. Therefore, the Alabama DOC

qualifies as an additional insured under the endorsement with respect to the Dunn litigation.

¶ 56 In the Briggs litigation, the complaint alleges a claim that the Massachusetts DOC has

violated the eighth amendment rights of prisoners who are deaf or heard of hearing, by being

deliberately indifferent to their medical needs through the failure to provide interpretive services

and assistive devices during medical and mental health treatment. The complaint alleges that such

prisoners have been “[e]xcluded from full participation in medical, mental health, and counseling

services and programs offered by the [Massachusetts DOC] and medical contractor [MPCH].” It

alleges that “[the Massachusetts DOC] and MPCH have refused to provide medically required

hearing aids to deaf and hard of hearing prisoners” and failed “to fix broken hearing devices

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promptly.” It alleges that MPCH is responsible for arranging interpretation services for deaf and

heard of hearing prisoners to communicate accurately and effectively with medical staff but that

such services are rarely if ever provided to prisoners who need them. These allegations constitute

a claim against the Massachusetts DOC “with respect to professional services rendered by”

MPCH, and therefore the Massachusetts DOC qualifies as an additional insured under the

endorsement with respect to the Briggs litigation.

¶ 57 Finally, in the Paszko litigation, the complaint alleges that the commissioner of the

Massachusetts DOC has, along with MPCH, been deliberately indifferent to the medical needs of

prisoners with Hepatitis C by failing and refusing to provide to them a better medication regimen

that became available in 2014, thereby violating their eighth amendment rights. It contends that

the “[Massachusetts DOC] and MPCH have instead continued a years-long reduction in the

number of patients treated for Hepatitis C; they have knowingly delayed evaluating prisoners, and

they have consciously avoided knowledge of their treatment needs.” Again, such allegations

constitute a claim against the Massachusetts DOC “with respect to professional services rendered

by” MPCH, and therefore the Massachusetts DOC qualifies as an additional insured under the

endorsement with respect to the Paszko litigation.

¶ 58 Having found that the respective state departments of correction qualify as additional

insureds for purposes of the underlying lawsuits in which they are defendants, we return to

Evanston’s argument that the contractual liability exclusion nevertheless precludes it from having

a duty to defend. As stated above, that exclusion provides that the insurance does not apply to

“[a]ny Claim based upon or arising out of the liability of others assumed by the Insured under any

contract or agreement, unless such liability would have attached to the Insured even in the absence

of such contract or agreement.” We reject Evanston’s argument, as we cannot interpret this

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exclusion to bar the very coverage contemplated under the additional insured endorsement. In

other words, by the additional insured endorsement Evanston agreed, with respect to certain

claims, to extend coverage to “[a]ny person or organization to whom or to which the Named

Insured is obligated by virtue of a valid written contract to provide insurance or indemnity such as

is afforded by the policy.” The relevant service agreements by virtue of which MHM and MPCH

undertook to provide insurance or indemnity to the state departments of correction were on file

with Evanston at the relevant time it issued the policy. If Evanston was nevertheless allowed to

rely upon the same service agreements to exclude this coverage by characterizing them as MHM

or MPCH’s having contractually assumed the liability of others, the coverage afforded by the

additional insured endorsement would be rendered illusory. We decline interpret the policy in a

way that would render coverage illusory. Illinois Farmers Insurance Co. v. Keyser, 2011 IL App

(3d) 090484, ¶ 15. We must also give effect to provisions of an endorsement over any conflicting

policy provisions. Zurich Insurance Co. v. Walsh Construction Co., 352 Ill. App. 3d 504, 509

(2004). Therefore, we hold that the contractual liability exclusion does not bar Evanston’s duty to

defend in this circumstance.

¶ 59 III. CONCLUSION

¶ 60 For the foregoing reasons, the trial court’s declaratory judgment that Evanston owed a duty

to defend in the underlying Dunn, Briggs, and Paszko lawsuits is affirmed.

¶ 61 Affirmed.

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