National Fire Insurance of Hartford v. Walsh Construction Co.

909 N.E.2d 285, 392 Ill. App. 3d 312, 330 Ill. Dec. 572, 2009 Ill. App. LEXIS 456
CourtAppellate Court of Illinois
DecidedMay 18, 2009
Docket1-08-0569
StatusPublished
Cited by34 cases

This text of 909 N.E.2d 285 (National Fire Insurance of Hartford v. Walsh Construction Co.) 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
National Fire Insurance of Hartford v. Walsh Construction Co., 909 N.E.2d 285, 392 Ill. App. 3d 312, 330 Ill. Dec. 572, 2009 Ill. App. LEXIS 456 (Ill. Ct. App. 2009).

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

The circuit court granted summary judgment in favor of the plaintiff, National Fire Insurance of Hartford, finding it had no duty to defend the defendants, Walsh Construction Company and The Chicago Historical Society (the CHS), in an underlying construction negligence suit filed by an employee of a subcontractor. We affirm the circuit court’s ruling that the underlying negligence suit alleges no facts that fall potentially within the coverage of National Fire’s commercial general liability policy (CGL), which names the defendants as additional insureds. We also hold that the circuit court correctly rejected any consideration of the third-party complaint filed by Walsh against the subcontractor, as the primary insured, in deciding that National Fire had no duty to defend.

BACKGROUND

The CHS hired Walsh as a general contractor for the renovation of its building at 1600 North Clark Street in Chicago. Walsh subcontracted with J.L. Adler Roofing and Sheet Metal, Inc. (Adler), to provide labor and materials for the roofing portion of the project. As part of the agreement between Walsh and Adler, Walsh and the CHS were named additional insureds on Adler’s CGL policy with National Fire.

In its CGL policy, National Fire limited coverage to Adler’s own work and excluded coverage to the additional insureds for liability arising from their sole negligence.

“That person or organization is an additional insured solely for liability due to [Adler’s] negligence and specifically resulting from ‘your work’ for the additional insured which is the subject of the written contract or written agreement. No coverage applies to liability resulting from the sole negligence of the additional insured.”

On December 7, 2005, Adler employee Ira Brainerd was injured while performing work on the CHS’s roof. On August 18, 2006, Brainerd filed a two-count complaint against Walsh and the CHS, alleging their negligent acts or omissions caused his injuries. Specifically, the complaint alleged:

“13. *** Plaintiff, IRA BRAINERD, was performing work on the roof at said location in the scope of his employment for ADLER.
14. *** [A]n employee of Defendant WALSH moved a section of the roofs support causing the roof deck on which Plaintiff was working to fall.
15. That as a result of the roof deck falling, Plaintiff fell and sustained serious injuries.”

Brainerd alleged Walsh “retained control” and “exercised control” of the work being performed on the CHS jobsite. Brainerd made similar allegations against the CHS as the owner of the property and as Walsh’s principal.

Walsh tendered the Brainerd complaint to National Fire for defense and indemnification. National Fire rejected the tender, concluding the complaint made no allegation of negligence on the part of Adler. Because the complaint grounded liability on the defendants’ sole negligence, the additional insured endorsement precluded coverage.

On April 10, 2007, National Fire filed a complaint seeking a declaration that it had no obligation to defend Walsh or the CHS in the Brainerd action. National Fire restated its contention that no coverage extended to the defendants because Brainerd’s complaint alleges only direct negligence against Walsh and vicarious negligence against the CHS. The complaint contains no factual allegations that might support a claim of negligence against Adler. The defendants answered, denying National Fire’s reading of the allegations in Brainerd’s complaint as pointing to negligence solely on the part of the defendants.

On June 12, 2007, Walsh filed a third-party complaint against Adler in the underlying Brainerd action. Walsh principally alleged that Brainerd was injured in the scope of his employment for Adler, that Adler failed to provide Brainerd with a safe place to work, failed to provide the support for Brainerd to safely complete his work, and failed to properly supervise Brainerd while he worked on the roof, all of which proximately caused or contributed to Brainerd’s injury. While Walsh denied liability for Brainerd’s injuries, it claimed that if it were found liable, Adler would be liable for its pro rata share of the common liability pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 2006)).

The defendants and National Fire filed cross-motions for summary judgment in the declaratory judgment suit. Judge Agran granted National Fire’s motion and denied the defendants’. He agreed with National Fire: the Brainerd complaint alleged only negligence against Walsh and the CHS. Thus, National Fire had no duty to defend because coverage was precluded under the additional insured endorsement. Judge Agran refused to consider the allegations in Walsh’s third-party complaint because it was filed “to pick up that which the underlying complaint didn’t [state].”

The defendants timely appeal.

ANALYSIS

The factual situation presented here is standard fare in the construction industry. An employee of a subcontractor is injured while working at a construction jobsite; the only recourse for an injured worker outside the Illinois Workers’ Compensation Act (820 ILCS 305/ 5(a) (West 2006)) is a suit against the general contractor and the property owner. Aware of this potential liability, the general contractor and property owner require they be named as additional insureds in the CGL policy the subcontractor must carry. The CGL carrier, well aware of this industry practice, crafts its policy to limit coverage to the additional insureds to negligence resulting from the primary insured’s work. As National Fire points out in its brief, “Like so many others, this coverage dispute arose from the gap between the general contractors’ desire for total protection and the scope of coverage that the subcontractor purchased from its insurer.” See, e.g., Pekin Insurance Co. v. Beu, 376 Ill. App. 3d 294, 876 N.E.2d 167 (2007); National Union Fire Insurance Co. of Pittsburgh v. R. Olson Construction Contractors, Inc., 329 Ill. App. 3d 228, 769 N.E.2d 977 (2002); Village of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d 1011, 670 N.E.2d 874 (1996).

In resolving the tension between the coverage a CGL carrier extends to a general contractor as an additional insured and the desire of a general contractor to look outside its own insurer for protection against suits by an employee of a subcontractor, general rules have been adopted by the courts regarding a CGL insurer’s duty to defend. “A court must compare the allegations in the underlying complaint to the policy language ***.” General Agents Insurance Co. of America v. Midwest Sporting Goods Co., 215 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
909 N.E.2d 285, 392 Ill. App. 3d 312, 330 Ill. Dec. 572, 2009 Ill. App. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-fire-insurance-of-hartford-v-walsh-construction-co-illappct-2009.