West Bend Mutual Insurance Company v. DJW-Ridgeway Building Consultants, Inc.

2015 IL App (2d) 140441, 40 N.E.3d 194, 396 Ill. Dec. 541, 2015 Ill. App. LEXIS 391

• Court: Appellate Court of Illinois
• Decided: May 19, 2015
• Docket: 2-14-0441
• Status: Unpublished

Opinion

2015 IL App (2d) 140441 No. 2-14-0441 Opinion filed May 19, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

WEST BEND MUTUAL INSURANCE ) Appeal from the Circuit Court COMPANY, ) of Lake County. ) Plaintiff-Appellant, ) ) v. ) No.13-MR-93 ) DJW-RIDGEWAY BUILDING ) CONSULTANTS, INC., ) Honorable ) Christopher C. Starck, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion

OPINION

¶1 Plaintiff, West Bend Mutual Insurance Company (West Bend), appeals the grant of

summary judgment in favor of defendant, DJW-Ridgeway Building Consultants, Inc.

(Ridgeway), on West Bend’s complaint for a declaratory judgment that it does not owe

Ridgeway a duty to undertake its defense in a construction negligence suit. We affirm, agreeing

that, under the undisputed material facts, West Bend owes Ridgeway a duty to defend.

¶2 I. BACKGROUND

¶3 At the outset we note that, after the briefs were submitted in this appeal, the First District

Appellate Court issued its decision in West Bend Mutual Insurance Co. v. Athens Construction 2015 IL App (2d) 140441

Co., 2015 IL App (1st) 140006. West Bend has filed a motion to cite the case as additional

authority. Ridgeway has not objected. We grant the motion and discuss the case in our analysis

below (infra ¶¶ 28-31).

¶4 In April 2008, Brian delaTorre was injured while working on the construction of a

commercial building called “the Village Commons.” Lake Effect Development III, LLC (Lake

Effect), was the developer on the project. Lake Effect had hired Ridgeway as the general

contractor, and Ridgeway had in turn hired Jason the Mason, Inc., as the masonry subcontractor.

In 2010, delaTorre brought a negligence suit naming Lake Effect, Ridgeway, and Jason the

Mason as defendants. See DelaTorre v. Lake Effect Development III, LLC, 2015 IL App (2d)

140596-U (partially reversing summary judgment in favor of Ridgeway and Jason the Mason).

Ridgeway tendered the defense of the action to West Bend on the theory that Ridgeway was an

“additional insured” on a liability policy that Jason the Mason held with West Bend. West Bend

refused the tender and later sued for a declaratory judgment that it had no duty to defend.

Ridgeway countersued for a declaratory judgment that West Bend did have a duty. The parties

subsequently filed cross-motions for summary judgment on the issue.

¶5 The parties submitted the following documents with their summary-judgment filings:

(1) the liability policy under which Ridgeway claimed that it was an additional insured (the

Policy); (2) a two-page work proposal prepared by Jason the Mason and submitted to Ridgeway

(the Proposal); and (3) a three-page subcontract agreement prepared by Ridgeway and submitted

to Jason the Mason (the Agreement). Also submitted were the depositions of Jason Schwan,

president of Jason the Mason, and David Wardeberg, president of Ridgeway. From those

submissions we present the following undisputed facts.

¶6 The Policy states in relevant part:

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“ADDITIONAL INSURED – CONTRACTOR’S BLANKET

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

A. WHO IS AN INSURED (Section II) is amended to include as an additional

insured any person or organization who you are required to add as an additional insured

on this policy under a written contract or written agreement.

The written contract or written agreement must be:

1. Currently in effect or becoming effective during the term of this policy;

and

2. Executed prior to the ‘bodily injury,’ ‘property damage,’ ‘personal

injury and advertising injury.’

B. The insurance provided to the additional insured is limited as follows:

***

2. The Limits of Insurance applicable to the additional insured are those

specified in the written contract or written agreement or in the Declarations for

this policy, whichever is less. These Limits of Insurance are inclusive and not in

addition to the Limits of Insurance shown in the Declarations.

C. As respects the coverage provided under this endorsement, Paragraph 4.b.

SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS is

amended with the addition of the following:

4. Other insurance

b. Excess insurance

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This insurance is excess over:

Any other valid and collectible insurance available to the

additional insured whether primary, excess, contingent or on any other

basis unless a written contract specifically requires that this insurance be

either primary or primary and noncontributing. Where required by written

contract, we will consider any other insurance maintained by the

additional insured for injury or damage covered by this endorsement to be

excess and noncontributing with this insurance.

When this insurance is excess, as a condition of coverage, the

additional insured shall be obligated to tender the defense and indemnity

of every claim or suit to all other insurers that may provide coverage to the

additional insured, whether on a contingent, excess or primary basis.”

There is no dispute that the Policy was in effect when delaTorre was injured, in April 2008.

¶7 As proof of a “written contract or written agreement” executed prior to delaTorre’s injury

and requiring that Ridgeway be named as an additional insured under the Policy, Ridgeway

pointed to the Proposal and the Agreement. The Proposal, which described masonry work to be

performed at the Village Commons, was prepared and signed by Schwan and submitted to

Ridgeway in late August 2007. The copy of the Proposal in the record also bears Wardeberg’s

signature, dated November 8, 2007. The only language in the Proposal regarding insurance is

the following:

“Owner to carry fire, tornado, wind, and other necessary insurance upon above work.

Workman’s Compensation and Public Liability Insurance on above work to be taken out

by Jason the Mason, Inc.”

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¶8 The copy of the Agreement in the record has signature lines for Wardeberg (as president

of Ridgeway) and for “Sub-Contractor,” but the lines are blank. The first paragraph of the

Agreement recites that it was “made this 8th day of November 2007,” between Jason the Mason

as “Sub-Contractor” and Ridgeway as “Contractor.” The second paragraph states that the

Agreement is “supplemental to and a part of that certain signed proposal between Contractor and

Sub-Contractor to which it is attached.”

¶9 Wardeberg testified at his deposition that he received the Proposal by fax. Initially in his

testimony, Wardeberg stated that he did not recall why neither he nor anyone from Jason the

Mason signed the Agreement. Later, however, Wardeberg testified that on or about November 8,

2007, Schwan came to Ridgeway’s offices and Wardeberg handed him the signed Proposal, to

which Wardeberg had attached the Agreement. Asked why he did not have Schwan sign the

Agreement at that time, Wardeberg replied that Schwan “wanted to review it and was going to

get it back to me.” Wardeberg noted that, if Schwan had signed the Agreement and returned it,

Ridgeway would have retained the document in its files, but in fact Ridgeway had no signed

copy of the document. Asked why he believed that Schwan accepted the terms of the

Agreement, Wardeberg answered, “He went and did the work.”

¶ 10 In his deposition, Schwan acknowledged that Jason the Mason’s project files contained

copies of the Proposal (signed by him and Wardeberg) and the Agreement (signed by no one).

Schwan had no memory of receiving the Agreement from Ridgeway but also had no reason to

doubt that he did receive it. Schwan also had no recollection of the “order” in which the

Proposal and the Agreement appeared in his project files. Schwan noted that just because the

Agreement was in his files did not mean that he reviewed it.

¶ 11 Paragraphs 5 and 6 of the Agreement state:

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“5. INSURANCE. Prior to commencing the Work, Sub-Contractor shall secure,

pay for, and file with the Contractor, Certificates of Insurance for workers’ compensation

insurance; general liability, auto liability and property damage insurance, having a

combined single limit of liability of not less than $2,000,000 or such higher limit as

reasonably required by the Contractor; and completed operations insurance, and such

other insurance coverage as may be required by the Prime Contract[1] or Illinois statutory

law. The Contractor is to be named as an additional insured on Sub-Contractor’s

insurance policy(s) with a Certificate evidencing Contractor as additional insured

commencing prior to Work beginning and remaining in place until completion of the

Sub-Contractor Agreement and Prime Contract. Please refer to the Attached Exhibit ‘A’,

Insurance Requirements, which provides detail for the Sub-Contractor to give to his

insurance agent to issue appropriate Certificates of Insurance.

6. INDEMNIFICATION. In consideration of $10.00 dollars and other valuable

consideration, receipt of which is hereby acknowledged, and in addition to other

indemnities elsewhere specifically provided herein and in the Prime Contract, the Sub-

Contractor shall assume the defense of, and shall indemnify and save and hold harmless

the Contractor, the Owner, any Lender to the Project, and their respective directors,

officers, employees, agents, successors and assigns, from all claims, liability, loss,

damage or injuries of every kind resulting from the Sub-Contractor’s performance or

failure to perform the Work and[/]or failure to fulfill the obligations stated herein and/or

the Prime Contract.”

1 The Agreement defines the “Prime Contract” as the entire contractual relationship

between Lake Effect and Ridgeway.

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¶ 12 Exhibit A to the Agreement provides as follows:

“EXHIBIT ‘A’

RIDGEWAY BUILDERS LIMITED

SUB-CONTRACTOR INSURANCE REQUIREMENTS

I. WORKERS’ COMPENSATION INSURANCE

Coverage A:

Statutory coverage will be required within 30 days notice of cancellation.

Coverage B:

Employers Liability Coverage: $500,000 Bodily Injury

Sickness and Disease: $500,000

Policy Limit Accident and Sickness: $500,000

II. COMMERCIAL GENERAL LIABILITY INSURANCE

Limits of insurance will be required as follows:

Each Occurrence: $1,000,000

General Aggregate: $2,000,000

Products Liability and Complete Operations Aggregate: $2,000,000

Personal and Advertising Injury: $1,000,000

Fire Damage Liability: $50,000

Medical Expense: $5,000

30-Day Notice of Cancellation

III. BUSINESS AUTOMOBILE INSURANCE

Bodily Injury & Property Damage Liability: $1,000,000

Combined Single Limit of Liability

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IV. UMBRELLA LIABILITY COVERAGE

Coverage to be excess of: $1,000,000

Employers’ Liability

General Liability Insurance

Automobile Liability Insurance

V. INSURANCE CERTIFICATES

* Sub-Contractor will provide Ridgeway Buildings with insurance certificates

confirming the insurance limits required in paragraphs I through IV above. These

certificates will include a provision that the Sub-Contractor’s insurance companies will

provide thirty (30) days written notice to Ridgeway Builders prior to the cancellation or

non-renewal of these policies; except for ten (10) days notice in the event of non-payment

of insurance premiums.”

¶ 13 On January 2, 2008, Ridgeway faxed to R-H Insurance Group (R-H), Jason the Mason’s

insurance agent, the following note:

“We need a certificate of Insurance for your client ‘Jason the Mason’ for both

General Liability and Worker’s Comp. coverage. Per our insurance agent, we are

required to have the following provision on our subcontractor Certificate of Insurance:

DJW Ridgeway Building Consultants is named as Additional Insured on a Primary

and Non-Contributory basis.

Please send us a certificate with the provision. ***”

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¶ 14 That same day, R-H faxed to Ridgeway a “Certificate of Insurance” that designated Jason

the Mason as “insured” and Ridgeway as “certificate holder.” The certificate stated: “DJW

RIDGEWAY BUILDING CONSULTANTS IS NAMED AS ADDITIONAL INSURED ON A

PRIMARY NON-CONTRIBUTORY BASIS.” The certificate also contained the following

disclaimer:

“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY

AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE

AFFORDED BY THE POLICIES LISTED BELOW.”

The certificate proceeded to recite the various coverages provided to Jason the Mason by West

Bend.

¶ 15 In its summary-judgment filings, West Bend denied on several grounds that it had a duty

to defend Ridgeway in delaTorre’s negligence suit. Only two of those defenses are material to

this appeal. The first was that, because the Agreement was not signed by West Bend or

Ridgeway, it did not constitute an “executed” written agreement as required by the Policy and

therefore was ineffective in its mandate that Jason the Mason add Ridgeway as an additional

insured under the Policy. The second defense was that, even if Ridgeway were an additional

insured under the Policy, the coverage afforded Ridgeway was excess, not primary, and therefore

West Bend still had no duty to defend.

¶ 16 In a written order, the trial court granted summary judgment for Ridgeway and denied it

for West Bend. The order set forth no reasons for the judgment, nor does the record contain a

transcript of the hearing on the summary-judgment motions.

¶ 17 West Bend filed this timely appeal.

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¶ 18 II. ANALYSIS

¶ 19 A. General Standards of Review

¶ 20 West Bend challenges the trial court’s disposition of the cross-motions for summary

judgment. “The purpose of summary judgment is not to try a question of fact, but rather to

determine whether a genuine issue of material fact exists.” Adams v. Northern Illinois Gas Co.,

211 Ill. 2d 32, 42-43 (2004). Summary judgment is appropriate only where “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 a judgment as a

matter of law.” 735 ILCS 5/2-1005(c) (West 2012). In determining whether a genuine issue of

material fact exists, the court must construe the pleadings, depositions, admissions, and affidavits

strictly against the movant and liberally in favor of the nonmovant. Adams, 211 Ill. 2d at 43.

Here, though the parties’ cross-motions for summary judgment were a mutual concession that

there is no genuine issue of material fact, we are not bound by that concession and may find the

matter unsuitable for summary judgment regardless. Pielet v. Pielet, 2012 IL 112064, ¶ 28. We

review de novo the grant or denial of summary judgment. Adams, 211 Ill. 2d at 43.

¶ 21 B. Additional Insured

¶ 22 The Policy accepts an additional-insured designation that is required in a “written

contract or written agreement” that was “executed” prior to the injury for which coverage is

claimed. West Bend does not dispute that the Agreement by its terms requires Ridgeway to be

named as an additional insured under the Policy. West Bend’s point of contention, rather, is that

the Agreement was not “executed” (per the Policy), because it bore no signatures. An insurance

policy is a contract (State Farm Fire & Casualty Co. v. Martinez, 384 Ill. App. 3d 494, 498

(2008)), and the determination of contractual rights is a question of law, suitable for resolution in

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a summary-judgment proceeding (Certain Underwriters at Lloyd’s, London v. Central Mutual

Insurance Co., 2014 IL App (1st) 133145, ¶ 7). “Executed” is not defined in the Policy. “Where

a term in an insurance policy is not defined, we afford that term its plain, ordinary and popular

meaning, i.e., we look to its dictionary definition.” Founders Insurance Co. v. Munoz, 237 Ill.

2d 424, 436 (2010). The dictionary definition of “execute” appropriate to this context is to affix

a signature. See Black’s Law Dictionary 589 (7th ed. 1999) (to “execute” means “3. To make (a

legal document) valid by signing; to bring (a legal document) into its final, legally enforceable

form .”). There are no signatures

on the Agreement. West Bend believes that this fact settles the matter, while Ridgeway proposes

that the “written contact or agreement” in this case consists of the (unsigned) Agreement together

with the (signed) Proposal. We agree with Ridgeway that these two documents comprise a

“written contact or agreement” requiring that Ridgeway be named an additional insured under

the Policy.

¶ 23 Certain undisputed facts lead us to this conclusion. First, the Agreement states that it is

“supplemental to and part of that certain signed proposal between Contractor and Sub-Contractor

to which it is attached.” West Bend maintains that, for the Proposal and the Agreement to be

considered one contract, the language of incorporation must appear in the signed writing, namely

the Proposal. We disagree; the rules are not so rigid for construing two or more documents as a

single contract.

“[A] contract need not be on a single piece of paper, but the writings taken together must

contain all the essential elements to show a contract between the parties so that there is no

need of parol proof of any of the terms or conditions of the sale or the intention of the

parties. [Citation.] It is necessary that where various writings are involved, they be

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connected in some definite manner. [Citation.] The signed writing or writings must refer

expressly to the other writing, or the several writings must be so connected, either

physically or otherwise, as to show by internal evidence that they relate to the same

contract. [Citation.]” (Emphasis added.) Mid-Town Petroleum, Inc. v. Dine, 72 Ill. App.

3d 296, 303-04 (1979).

Thus, a reference in the signed document to the unsigned document is not necessary for the two

to comprise a single contract. Here, the Agreement denominates itself as part of the Proposal,

and both documents identify the same contracting parties. This verbal connection between the

two documents was confirmed with a physical connection: Wardeberg testified that the

Agreement was attached to the Proposal when he submitted them to Schwan. This testimony

was not contradicted by West Bend; Schwan had no recollection of receiving the Agreement but

had no reason to doubt that he did. Consistent with this, Schwan gave no opinion on whether the

Agreement was attached to the Proposal when he received them.

¶ 24 Moreover, Jason the Mason’s conduct following its undisputed receipt of the Proposal

and appended Agreement confirms that it considered itself bound by the Agreement. The

Agreement required Jason the Mason to produce for Ridgeway a certificate of insurance

designating Ridgeway as an additional insured under the Policy. On January 2, Ridgeway

requested, and R-H provided, a certificate of insurance stating: “DJW RIDGEWAY BUILDING

CONSULTANTS IS NAMED AS ADDITIONAL INSURED ON A PRIMARY NON-

CONTRIBUTORY BASIS.” “ ‘It is well settled that a party named in a contract may, by his

acts and conduct, indicate his assent to its terms and become bound by its provisions even though

he has not signed it.’ ” Asset Recovery Contracting, LLC v. Walsh Construction Co. of Illinois,

2012 IL App (1st) 101226, ¶ 64 (quoting Landmark Properties, Inc. v. Architects International-

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Chicago, 172 Ill. App. 3d 379, 383 (1988)). Jason the Mason, in complying with the

Agreement’s mandate that it obtain a certificate of insurance confirming coverage for Ridgeway,

manifested assent to the Agreement’s terms.

¶ 25 West Bend claims, however, that there is “no evidence that Jason the Mason had any

involvement in the issuance of the certificate.” We are not sure what kind of “involvement”

West Bend means. Jason the Mason’s original “involvement,” we may say, was its signing a

written agreement with Ridgeway (consisting of the Proposal and the Agreement) requiring it to

name Ridgeway as an additional insured and to produce a certificate of insurance to that effect.

Jason the Mason might not have been the party to contact R.H. or physically fax the certificate,

but it clearly directed Ridgeway to R-H.

¶ 26 West Bend also finds it important that Ridgeway requested the certificate “[p]er [its]

insurance agent” and did not mention any contractual requirement that Jason the Mason produce

the document. West Bend takes this as evidence that Ridgeway itself did not consider the

Agreement effective. This is not persuasive. West Bend points to no reason apparent of record

why Ridgeway would want the certificate other than because of the Agreement. A court “is not

required to entertain unreasonable inferences raised in opposition to a motion for summary

judgment.” Thede v. Kapsas, 386 Ill. App. 3d 396, 401 (2008). Quite likely, the requirement

that Ridgeway be named as an additional insured originated in a requirement of Ridgeway’s own

insurer, in which case the request for the certificate was, ultimately, “per [Ridgeway’s] insurance

agent.”

¶ 27 After the briefs were filed in this case, West Bend directed our attention to Athens

Insurance Co., 2015 IL App (1st) 140006. West Bend claims that the case bolsters its position

that Jason the Mason and Ridgeway never agreed for Ridgeway to be named as an additional

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insured. We read the case quite differently. In Athens, the general contractor (Athens) claimed

coverage under the West Bend insurance policy of its subcontractor, R. Carrozza Plumbing

Company. The policy (like the Policy here) extended coverage to any party required by a written

agreement to be named as an additional insured. Athens claimed that its subcontract agreement

with Carrozza required the additional-insured designation. The only portion of the subcontract

agreement that mentioned additional-insured parties was section 13.1, which stated:

“ ‘The Subcontractor shall purchase and maintain insurance of the

following types of coverage and limits of liability:

Types of insurance Limits of liability ($0.0)

The following clause should be $1,000,000.00

provided on the Subcontractor’s

Certificate of Insurance:

Athens Construction Co., Inc.

Additional insured, on a primary and

non-contributory basis.’ ” (Emphasis in original.) Id. ¶ 6.

¶ 28 Carrozza arranged for a certificate of insurance that named Athens as an additional

insured. The certificate contained, however, a disclaimer that it conferred no insurance rights

apart from Carrozza’s insurance policy. Id. ¶ 8.

¶ 29 The trial court granted summary judgment for Carrozza, finding no coverage for Athens

under Carrozza’s policy. The appellate court affirmed. The court disagreed with Athens over

the import of section 13.1 and the certificate of insurance that Carrozza obtained for Athens:

“We find that the subcontract did not require Athens to name Carrozza as an

additional insured on Carrozza’s [commercial general liability] policy. The plain

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meaning of article 13.1 [of the subcontract agreement] is that Carrozza was required to

state that Athens was an additional insured on a certificate of insurance. However, the

certificate contained a disclaimer that it conferred no rights on Athens, the certificate

holder, and did not alter coverage. Where the certificate refers to the policy and

expressly disclaims any coverage other than that contained in the policy itself, the policy

governs the extent and terms of the coverage. [Citation.] *** We *** find that the

certificate of insurance does not serve as evidence of the parties’ intent to name Athens as

an additional insured, given that the actual, plain language of the subcontract does not

contain such a requirement. [Citation.]

*** [T]here is a presumption against provisions that easily could have been

included in a contract but were not. [Citation.] Athens could have required Carrozza to

add it as an additional insured, but did not.” Id. ¶¶ 28-29.

¶ 30 We held above that, though the Agreement was unsigned, Jason the Mason manifested its

assent to the Agreement’s additional-insured requirement by providing Ridgeway a certificate of

additional-insured coverage as required by the Agreement. To the extent that the reasoning of

Athens suggests that the issuance of the certificate was not itself evidence of assent to the

Agreement’s terms, we decline to follow it. Kovac v. Barron, 2014 IL App (2d) 121100, ¶ 85

(“[W]e are not bound to abide by the holding of another district of the appellate court.”).

Moreover, the facts at hand are distinguishable under Athens’ own logic. The stumbling point

for Athens, in the appellate court’s view, was that the subcontract agreement, though it required a

certificate of additional-insured coverage, did not require that Carrozza actually add Athens as an

additional insured. Ridgeway does not have that difficulty here. Section 5 of the Agreement

requires not only that Jason the Mason procure a certificate of insurance naming Ridgeway as an

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additional insured, but also that Ridgeway actually be designated as an additional insured under

¶ 31 For the foregoing reasons, we find that the undisputed facts demonstrate the existence of

a “written contract or written agreement” requiring that Ridgeway be named as an additional

insured under the Policy.

¶ 32 C. Primary or Excess Insurance

¶ 33 Next, West Bend contends that, even if Ridgeway were an additional insured under the

Policy, West Bend would still have no duty to defend, because Ridgeway’s additional-insured

coverage would be excess, not primary. We disagree.

¶ 34 Primary and excess coverages differ in the following manner:

“Primary insurance coverage is coverage whereby, under the terms of the policy, liability

attaches immediately upon the happening of an event that gives rise to liability.

[Citation.] A primary insurer provides ‘first dollar’ coverage up to the limits of its

policy. [Citation.] In contrast with primary insurance, excess insurance coverage is a

secondary layer which protects an insured when a judgment or settlement exceeds the

primary policy’s limits of liability. [Citation.] A secondary insurer covers the same risks

as the primary insurer [citation], but under the terms of an excess policy, the secondary

insurer’s liability attaches only after a predetermined amount of primary coverage has

been exhausted. [Citations.] Put another way, an excess policy does not broaden the

underlying coverage, it increases the amount of coverage available to compensate for a

loss. Excess insurance premiums are typically less expensive than primary insurance

premiums because excess insurers experience less frequent claims and incur lower costs

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than primary insurers. [Citations.]” (Internal quotation marks omitted.) Certain

Underwriters at Lloyd’s, 2014 IL App (1st) 133145, ¶ 2.

¶ 35 An excess or secondary insurer’s duty to defend does not arise until the limits in the

primary policy are reached. Metzger v. Country Mutual Insurance Co., 2013 IL App (2d)

120133, ¶ 20. Ridgeway does not dispute that, if the coverage provided it as an additional

insured is excess coverage, then West Bend has no duty to defend it in the underlying action.

¶ 36 Moreover, Ridgeway does not place any weight on the certificate of insurance issued by

R-H, which stated that Ridgeway was covered as an additional insured “on a primary non-

contributory basis.” The certificate referenced the Policy and expressly provided that it was for

informational purposes only and conferred no coverage rights on Ridgeway apart from the

Policy. “Where the certificate refers to the policy and expressly disclaims any coverage other

than that contained in the policy itself, the policy governs the extent and terms of the coverage.”

Athens, 2015 IL App (1st) 140006, ¶ 28. Ridgeway is correct, therefore, to forgo reliance on the

certificate as evidence of the type of coverage afforded it.

¶ 37 We now turn to the Policy, which provides that the additional-insured coverage is “excess

over: Any other valid and collectible insurance available to the additional insured whether

primary, excess, contingent or on any other basis unless a written contract specifically requires

that this insurance be either primary or primary and noncontributing.” (Emphasis added.) The

crucial word here, as the parties recognize, is “specifically,” but it is not defined in the Policy.

We resort to the dictionary to ascertain the plain and ordinary meaning of the term. Munoz, 237

Ill. 2d at 436. “Specifically” is defined as “with exactness and precision : in a definite manner.”

Webster’s Third New International Dictionary 2187 (1993). We stress, however, that the

“written contract” need not employ the precise terms “primary” and “noncontributing” so long as

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the unmistakable import of the language used is that coverage will be primary and

noncontributing.

¶ 38 Ridgeway points to exhibit A of the Agreement, which itemizes the coverage to be

afforded an additional insured. As Ridgeway notes, among the required coverage is (1)

“commercial general liability insurance” with an individual occurrence limit of $1,000,000 and a

general aggregate limit of $2,000,000; and (2) “umbrella liability insurance” of $1,000,000, “to

be excess of: employer’s liability, general liability insurance [and] automobile liability

insurance” (emphasis added). Ridgeway submits that “[t]his language demonstrates that the first

$2,000,000 of commercial general liability that Jason the Mason was contractually required to

provide for [Ridgeway] as an additional insured was primary insurance, as opposed to excess or

umbrella coverage.” (Emphasis in original.) We agree. The only coverage described as excess

in exhibit A is the umbrella coverage. This coverage is expressly designated as excess over the

general liability insurance that exhibit A also requires. A policy may, of course, be excess over

other excess policies. See 15 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 217:3

(1999). Here, however, we apply the maxim expressio unius est exclusio alterius (the expression

of one thing is the exclusion of another). See Suga v. Suga, 35 Ill. App. 2d 355, 359 (1962)

(applying the maxim in contract interpretation). If Ridgeway and Jason the Mason intended for

the general liability coverage to be excess, they would have so labeled it, as they did the

umbrella coverage. We conclude, therefore, that the general liability coverage is primary.

¶ 39 West Bend cites case law for the principle that “an insured cannot selectively tender a

defense to his excess insurer while primary coverage remains unexhausted” (River Village I, LLC

v. Central Insurance Cos., 396 Ill. App. 3d 480, 490 (2008)). Of course, this principle would bar

Ridgeway’s tender of its defense only if its additional-insured coverage were excess rather than

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primary. West Bend, however, offers nothing substantial on the decisive issue of how to

characterize that coverage. Rather than engage the language of exhibit A, West Bend repeatedly

asserts, without supporting argument, that exhibit A does not “specifically” (per the Policy)

require that the additional-insured coverage be primary. This assumes, however, that Ridgeway

could not “specifically” require “primary” or “primary and noncontributing” coverage for an

additional insured without using those very words. The plain, ordinary, and popular meaning of

“specifically” is not so restrictive.

¶ 40 Because Ridgeway’s additional-insured coverage under the Policy includes primary

coverage as a portion of its total coverage, West Bend has a duty to defend Ridgeway in the

underlying action.

¶ 41 III. CONCLUSION

¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

¶ 43 Affirmed.

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