National Surety Corp. v. Swissler Plumbing, Inc.

521 N.E.2d 257, 167 Ill. App. 3d 608, 118 Ill. Dec. 189, 1988 Ill. App. LEXIS 344
CourtAppellate Court of Illinois
DecidedMarch 21, 1988
Docket2-87-0547
StatusPublished
Cited by4 cases

This text of 521 N.E.2d 257 (National Surety Corp. v. Swissler Plumbing, Inc.) 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 Surety Corp. v. Swissler Plumbing, Inc., 521 N.E.2d 257, 167 Ill. App. 3d 608, 118 Ill. Dec. 189, 1988 Ill. App. LEXIS 344 (Ill. Ct. App. 1988).

Opinion

JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the National Surety Corporation (National), filed a declaratory judgment action in the circuit court of Du Page County naming as defendants Swissler Plumbing, Inc., Steven K. Swissler, and the Northern Trust Company, as plenary guardian of the estate of Norman A. Petersen, and seeking a declaration of the parties’ rights and liabilities under an excess liability insurance policy issued by National to Swissler Plumbing, Inc. Following the circuit court’s granting of summary judgment in favor of plaintiff, defendants filed this appeal.

The issue presented in this appeal is whether the trial court erred in ruling, as a matter of law, that Steven K. Swissler was not covered by National’s excess liability insurance policy. '

On January 6, 1981, Norman A. Petersen filed a complaint seeking damages for personal injuries incurred in an automobile accident on December 25, 1980, and naming as defendants Steven K. Swissler and Swissler Plumbing, Inc. According to the complaint, Steven Swissler was the owner and operator of a 1979 Ford pickup truck which struck a vehicle driven by Petersen. The complaint further alleged that the same 1979 Ford pickup was owned and maintained by Swissler Plumbing, Inc., and that Steven Swissler was acting as an agent and employee of Swissler Plumbing, Inc., at the time of the accident.

During the course of the tort litigation, the trial court granted summary judgment in favor of Swissler Plumbing, Inc., which was not appealed. The case against the remaining defendant, Steven K. Swissler, proceeded to jury trial. On August 26, 1982, the jury returned a verdict in favor of Norman Petersen in the amount of $1,275,000.

Both defendants were defended during the tort litigation by United States Fidelity & Guaranty Company (USF&G), pursuant to an insurance policy issued by USF&G to Swissler Plumbing, Inc. Following the judgment, USF&G paid to Northern Trust Company, as the plenary guardian of the estate of Norman Petersen, $500,000, which was the liability limit under the policy issued to Swissler Plumbing, Inc.

On July 15, 1982, prior to the final judgment in the tort litigation, National filed its declaratory judgment action naming Steven Swissler and Swissler Plumbing, Inc., as defendants. National sought a declaration that it was not liable under an excess liability policy that it had issued to Swissler Plumbing, Inc., because Steven Swissler was not an “insured” within the meaning of that policy. On December 14, 1982, subsequent to the jury verdict in the tort case, National amended its complaint to include the Northern Trust Company as a defendant. National later amended its amended complaint and raised the additional issue of whether USF&G owed a duty to National to defend under the primary policy so as not to prejudice National. That amendment, however, was dismissed. National then filed an amended amendment to its amended complaint in which it raised the issue of whether Steven Swissler was covered under the primary policy issued by USF&G. The trial court again dismissed the amended amendment to the amended complaint. National filed a notice of appeal from the second dismissal order, but never prosecuted the appeal.

In its motion for summary judgment, National raised two arguments in support of its nonliability under its excess liability policy issued to Swissler Plumbing, Inc. First, it argued that Steven Swissler was not an “insured” within the meaning of its excess liability policy. Second, it contended that it was not liable for coverage under its excess liability policy because Steven Swissler was not covered by the primary policy issued by USF&G. National submitted the discovery depositions of Allan N. Young, a former assistant claims manager with National, and Herbert A. Hausmann, a branch manager with National, which, in essence, provided their interpretations of certain terms of the two policies as well as the interrelationship of both policies. Additionally, National included in its memorandum in support of summary judgment an affidavit of Steven Swissler and excerpts from Jack Swissler’s discovery deposition both of which stated that Steven Swissler, not Swissler Plumbing, Inc., owned the 1979 Ford pickup truck. Defendants submitted the affidavit and discovery deposition of John D. Ingram, a law professor, to rebut National’s agents’ opinions interpreting the policies.

The trial court, in granting summary judgment to National, disposed of the case based upon National’s argument that Steven Swissler was not covered under USF&G’s primary policy. As to the issue of whether Steven Swissler was an insured within the terms of the excess policy, the court found there was no issue because language in the excess policy provided that anyone who was insured under the primary policy would be insured under the excess policy. Consequently, the court concluded that National was entitled to challenge the decision of USF&G to provide coverage to Steven Swissler and that there was no basis in the record to support coverage under the USF&G policy.

On appeal, the defendants make several arguments related to the question of coverage under the excess policy issued by National. Defendants contend first that National is bound by USF&G’s determination that there was coverage under the primary policy. They further maintain that coverage was properly extended under the USF&G primary policy. Defendants also argue that National’s excess liability policy provides coverage for Steven Swissler in that it incorporates the primary policy of USF&G and that because Steven Swissler was covered by the primary policy, he is necessarily covered by the excess policy.

National responds that Steven Swissler is not an “insured” under the primary policy and, therefore, is not covered by its excess policy. It also argues that Steven Swissler was excluded from coverage under its excess policy and, as a result, it is not liable for coverage.

Initially, we note that defendants mention in one sentence in . their appellate brief the issue of whether there was a question of material fact as to the existence of coverage under the primary policy. Defendants, however, provide no argument or citation of authority for this contention, nor is the contention raised in the issues presented for review statement in their brief. Therefore, it is waived. See 107 Ill. 2d R. 341(e); People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 511, 493 N.E.2d 1037.

The purpose of summary judgment is to determine whether there are any genuine issues of material fact (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867), and it should only be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c)). Although summary judgment is an expeditious method of disposing of a lawsuit, it should only be allowed when the right of the moving party is clear and free from doubt. (111 Ill.

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Bluebook (online)
521 N.E.2d 257, 167 Ill. App. 3d 608, 118 Ill. Dec. 189, 1988 Ill. App. LEXIS 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-surety-corp-v-swissler-plumbing-inc-illappct-1988.