{
  "id": 5802324,
  "name": "Bituminous Casualty Corporation, a Corporation, Plaintiff-Appellant, Cross-Appellee, v. Hartford Accident & Indemnity Company, a Corporation, Defendant-Appellee, Cross-Appellant",
  "name_abbreviation": "Bituminous Casualty Corp. v. Hartford Accident & Indemnity Co.",
  "decision_date": "1964-11-02",
  "docket_number": "Gen. No. 49,412",
  "first_page": "242",
  "last_page": "249",
  "citations": [
    {
      "type": "official",
      "cite": "53 Ill. App. 2d 242"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 11306,
    "ocr_confidence": 0.551,
    "sha256": "6eb6372fa13c0f42bfafc756c22b8c8e417d54e1f979644d8ca33fbbec999cac",
    "simhash": "1:3cd3f8028207b649",
    "word_count": 1765
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  "last_updated": "2023-07-14T21:34:39.473137+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "BURMAN and KLUCZYNSKI, JJ., concur."
    ],
    "parties": [
      "Bituminous Casualty Corporation, a Corporation, Plaintiff-Appellant, Cross-Appellee, v. Hartford Accident & Indemnity Company, a Corporation, Defendant-Appellee, Cross-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE MURPHY\ndelivered the opinion of the court.\nThis is a declaratory judgment action brought by plaintiff, Bituminous Casualty Corporation, against defendant, Hartford Accident and Indemnity Company, to determine which of the two insurers is liable to pay the amount of a settlement entered into on behalf of their common insured, Central Engineering Company. Bituminous and Hartford each paid $42,500 to a claimant who was injured at a Central construction site in Moline, Illinois, and stipulated that their respective rights and liabilities would be subsequently determined. In the instant case, the trial court found that coverage was provided to Central by both Bituminous and Hartford, and that their contributions should stand. Judgment was entered accordingly. Bituminous appeals, and Hartford cross-appeals.\nCentral Engineering Company of Davenport, Iowa, was in the construction business, including road paving, excavation work and steel erection. An occurrence stipulation by Bituminous and Hartford shows that Edward Mclntire, a minor, was injured on May 27, 1953, while on 23rd Avenue in Moline, Illinois, as he watched paving operations then being carried on by Central. Twenty-third Avenue was a 2-lane highway, with no sidewalks. The project involved the widening of 23rd Avenne by adding an additional lane of concrete to each side of the paved portion of the road. At the time of the occurrence, work was being done only on the addition to the north edge of 23rd Avenue; work had not commenced at the south edge of 23rd Avenue. Central was the sole contractor connected with the project. At the approaches of Twenty-third Avenue were wooden horses and barricades, on which signs were placed, \u201cRoad closed. Open to Contractor\u2019s and Resident\u2019s vehicles only. Violators subject to fine. (State of Illinois.)\u201d Other signs read, \u201cRoad closed. Open to Contractor\u2019s and Resident\u2019s traffic only.\u201d\nIt is further stipulated that Central knew children had been and were using 23rd Avenue to go . to and from school, and that the direct route to the school attended by Edward Mclntire was on and along 23rd Avenue. While he was on his way to school on the morning of the occurrence, he stopped on 23rd Avenue to observe the operations of the concrete mixer, crane and bucket and finishing machine, which were being operated on the addition to the existing highway. As he was watching, he saw the bucket moving toward him on the boom and coming closer to him. At the same time he heard a voice coming from the general direction of the cement mixer and finishing machine. This voice said, \u201cStep back.\u201d As Edward stepped one step backward on the paved portion of 23rd Avenue, the right wheel of a passing material truck, hired by and operated in behalf of Central, ran over and injured him.\nTo insure its construction operations, Central maintained a comprehensive insurance program with a number of insurance companies, including Bituminous and Hartford. The Bituminous policy limits were $50,000, and the Hartford policy limits were $100,000. A third insurance carrier had issued a $25,000 policy to the owner of the truck, which was being operated on behalf of Central. $110,000 was paid by the three insurance carriers in settlement of the Edward Mc-Intire claim. Of this amount, the third insurance carrier paid the face amount of its policy ($25,000). As to the balance of $85,000, Bituminous and Hartford each contributed $42,500, with a settlement stipulation as aforesaid.\nThe Bituminous policy was a \u201cSCHEDULE MANUFACTURERS\u2019 AND CONTRACTORS\u2019 LIABILITY POLICY.\u201d It covered bodily injury \u201ccaused by accident and arising out of the hazards hereinafter defined,\u201d which include \u201cthe ownership, maintenance or use of the premises, and all operations which are necessary or incidental thereto.\u201d Under \u201cEXCLUSIONS,\u201d the policy does not apply \u201cto . . . automobiles . . . while away from the premises, unless such hazards are specifically declared and described in this policy and premium charged therefor.\u201d The word \u201cpremises\u201d is defined to mean \u201c(a) the premises designated in the declarations and other premises of which the named insured acquires ownership or which he rents during the policy period, including buildings and structures thereon and the ways immediately adjoining and (b) other places while used by or on behalf of the named insured, . . . except public ways used in common with others.\u201d (Emphasis supplied.)\nThe business address of Central, given in both policies, was \u201c2531 Rockingham Road, Davenport, Iowa.\u201d In the Bituminous policy, opposite the printed words \u201cLocation of premises,\u201d in typewritten words appears. \u201cSame and in the States of Iowa and Illinois.\u201d This policy also contains a typewritten rider, which specifically describes one of the hazards insured against as \u201cSTREET OR ROAD PAYING OR REPAYING, SURFACING OR RESURFACING OR SCRAPING . . . Iowa, Illinois.\u201d\nThe Hartford policy was a \u201cCOMPREHENSIVE GENERAL AND AUTOMOBILE LIABILITY POLICY.\u201d The coverage was \u201cto pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, . . . sustained by any person and caused by accident.\u201d The policy contained the further provision that \u201cthe insurance under this policy with respect to loss arising out of the use of any nonowned automobile shall be excess insurance over any other valid and collectible insurance available to the Insured, either as an Insured under a policy applicable with respect to such automobile or otherwise.\u201d A separate endorsement also provided that \u201cthe insurance . . . shall. be excess insurance over any other valid and collectible insurance available to the Insured . . . against a loss arising out of a hired automobile . . . .\u201d We note again that it was a \u201cnonowned\u201d automobile involved in the occurrence which led to the settlement.\n-In the instant action, Bituminous claims that Hartford is liable for the full $85,000, because Bituminous\u2019 policy specifically excluded from its coverage the occurrence which gave rise to the claim against Central. Bituminous argues that \u201cTwenty-third Avenue in the City of Moline was at the time of the occurrence a \u2018public way\u2019 used by Central \u2018in common with others.\u2019 Hence, Bituminous did not provide coverage for automobile accidents which occurred thereon,\u201d and the \u201cliability falls squarely within the coverage of Hartford\u2019s policy.\u201d\nHartford denies any liability to Bituminous, and by a counterclaim asserts that Bituminous is liable for its full policy limit ($50,000), because the Bituminous policy covered the risk to the boy, and Hartford\u2019s coverage was \u201cexcess coverage only.\u201d (Emphasis supplied.) Hartford claims Bituminous owes it $7500, i. e., the difference between Bituminous\u2019 $42,500 contribution and its $50,000 policy limit.\nIn order to support its contention that 23rd Avenue was a \u201cpublic way,\u201d and that \u201cpublic ways\u201d have a judicially accepted definition, Bituminous cites numerous authorities. \"We do not find it necessary to review these general authorities, because they do not demonstrate that the immediate area in which the occurrence took place was meant to be excluded by the Bituminous policy. Our conclusion, determined by reading the policy as a whole, is that the \u201cpublic way\u201d exclusion does not apply to the factual situation presented here.\nThe typewritten rider to the policy, enumerating as a hazard covered the \u201cSTREET OR ROAD PAVING OR REPAVING, SURFACING OR RESURFACING OR SCRAPING . . . Iowa, Illinois,\u201d is an indication that entire construction sites on projects such as the 23rd Avenue widening were intended to be covered by the policy. This interpretation is reinforced by the definition of hazards covered in the following language:\n\u201cDivision 1. Premises\u2014Operations. The ownership, maintenance or use of the premises, and all operations which are necessary or incidental thereto.\u201d\n\u201cPremises\u201d is defined, in part, as \u201cother places while used by or on behalf of the named insured . . . .\u201d Inserted in the policy, in typewriting, the location of the \u201cpremises\u201d was stated to be \u201c. .' . in the States of Iowa and Illinois.\u201d These provisions, read together, seem to indicate that an entire construction site area was meant to be covered by the policy, and this, of necessity, would include portions of any \u201cpublic way\u201d which happened to be part of or immediately adjacent to a Central paving site. Under this interpretation, the policy coverage of Bituminous would include that paved portion of 23rd Avenue on which Edward Mclntire was standing when injured hy the passing truck.\nThe area included in a paving operation site depends on many factors and, of necessity, varies according to the facts in each case. It would be incongruous and arbitrary to construe this policy to hold Bituminous not liable if Edward were injured by an automobile while he happened to he standing on a \u201cpublic way\u201d within the construction site area, and to hold Bituminous liable if, by chance, he were standing alongside a \u201cpublic way\u201d within the paving site area.\nAs Central is in the business of highway construction and construction sites are necessarily on or immediately adjacent to \u201cpublic ways,\u201d this policy would have no value to Central if it were construed as excluding liability for injuries which happen to occur on the adjacent \u201cpublic ways.\u201d The more reasonable interpretation of this exclusion is that it was intended to exclude liability of Bituminous for occurrences involving vehicles traveling on streets, highways, and other \u201cpublic ways\u201d to and from the construction sites.\nFor the reasons stated, we hold the Bituminous policy furnished primary insurance coverage for the occurrence, with liability measured by its policy limits of $50,000. As the Hartford policy furnished excess coverage only, it follows that as Bituminous has paid $42,500 of its coverage, it should pay the additional $7500 to Hartford to reimburse Hartford for its settlement overpayment.\nIn accordance with the conclusions of this court, and pursuant to the authority given to this court in section 92(1) (e) of the Civil Practice Act (Ill Rev Stats 1963, c 110), it is ordered that the part of the judgment order appealed from which provides \u201cthat the payments of parties heretofore made should stand as their respective contributions to said settlement,\u201d is reversed and judgment he and it is hereby entered against Bituminous Casualty Corporation, plaintiff, and in favor of Hartford Accident & Indemnity Company, defendant, in the amount of $7500, with the costs of the proceedings to he divided equally between them.\nAffirmed in part, reversed in part and judgment entered here.\nBURMAN and KLUCZYNSKI, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE MURPHY"
      }
    ],
    "attorneys": [
      "Doyle, Berdelle & Tarpey, and Jerome H. Torshen, all of Chicago (Leo J. Doyle, Jr. and Jerome H. Torshen, of counsel), for appellant.",
      "Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush, Francis B. Libbe, and John M. O\u2019Connor, Jr., of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "Bituminous Casualty Corporation, a Corporation, Plaintiff-Appellant, Cross-Appellee, v. Hartford Accident & Indemnity Company, a Corporation, Defendant-Appellee, Cross-Appellant.\nGen. No. 49,412.\nFirst District, First Division.\nNovember 2, 1964.\nRehearing denied November 23, 1964.\nDoyle, Berdelle & Tarpey, and Jerome H. Torshen, all of Chicago (Leo J. Doyle, Jr. and Jerome H. Torshen, of counsel), for appellant.\nKirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush, Francis B. Libbe, and John M. O\u2019Connor, Jr., of counsel), for appellee."
  },
  "file_name": "0242-01",
  "first_page_order": 254,
  "last_page_order": 261
}