{ "id": 3609136, "name": "UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellee, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant", "name_abbreviation": "United States Fidelity & Guaranty Co. v. Continental Casualty Co.", "decision_date": "1987-02-19", "docket_number": "No. 85\u20141721", "first_page": "185", "last_page": "190", "citations": [ { "type": "official", "cite": "153 Ill. App. 3d 185" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "477 N.E.2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441409 ], "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0449-01" ] }, { "cite": "311 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5408218 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0184-01" ] }, { "cite": "298 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 841", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928345 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0841-01" ] }, { "cite": "358 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2812803 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0481-01" ] }, { "cite": "442 N.E.2d 245", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098596 ], "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0388-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 503, "char_count": 11370, "ocr_confidence": 0.751, "pagerank": { "raw": 4.284447817890619e-08, "percentile": 0.27045167498182326 }, "sha256": "57314d0410c792d92729375abb7e8f7294b5d72665823398368bf64c5d781410", "simhash": "1:4a6f7cbe1541954d", "word_count": 1745 }, "last_updated": "2023-07-14T16:39:45.296283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appel-lee, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McMORROW\ndelivered the opinion of the court:\nContinental Casualty Company (Continental) appeals from the order of the circuit court of Cook. County that allowed the motion for summary judgment of United States Fidelity & Guaranty Company (USF&G) on USF&G\u2019s action for declaratory judgment. USF&G sought a determination that its insurance policy covering certain activities of Hansen, Lind & Meyers (HLM), an architectural firm, did not obligate USF&G to defend or indemnify HLM with respect to HLM\u2019s alleged liability for personal injuries sustained by a worker at a jobsite at which HLM was allegedly in charge of the construction work.\nUSF&G\u2019s \u201cmulti-peril\u201d insurance policy to HLM excluded from coverage personal injury or property damage arising from the firm\u2019s provision of \u201cprofessional services.\u201d Continental\u2019s insurance with HLM covered liability for errors, omissions, or negligent acts resulting from HLM\u2019s performance of \u201cprofessional services.\u201d The trial court found that HLM\u2019s alleged control of construction work amounted to the performance of professional services. It determined that USF&G policy\u2019s exclusion for professional services coverage applied and that Continental was obligated to defend and indemnify HLM pursuant to its professional liability policy with HLM.\nOn appeal, Continental argues that genuine issues of material fact precluded the entry of summary judgment in favor of USF&G. Assuming there were no such issues presented to prevent the entry of summary judgment, Continental also maintains that the services which HLM provided, according to the allegations of the underlying personal injury suit, do not fall within the purview of USF&G\u2019s policy exclusion and do not require Continental to defend or indemnify HLM pursuant to Continental\u2019s professional liability insurance coverage with HLM.\nWe conclude that there were no genuine issues of material fact presented to prevent the trial court\u2019s entry of summary judgment. We also determine that the services which HLM allegedly provided according to the underlying personal injury suit amounted to \u201cprofessional services\u201d covered by Continental\u2019s liability insurance with HLM. As a result, the order of the circuit court is affirmed.\nBackground\nWarren Priemann (Priemann) allegedly sustained injuries on April 2, 1982, while he was engaged in construction work at St. Francis Hospital in Evanston, Illinois. His complaint alleges in pertinent part that HLM was the architect on the jobsite, that it had charge of the work being performed at the time of the occurrence and the construction generally, and that the injury he sustained when he fell through an unprotected, unguarded, and inadequate skylight was proximately caused by HLM\u2019s failure to comply with the provisions of the Illinois Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69).\nDefense of the Priemann action was tendered to both USF&G and Continental. Each company agreed to defend HLM under reservations of rights subject to the disposition of USF&G\u2019s instant declaratory judgment action. Continental filed an answer to USF&G\u2019s pleading and also filed a counterclaim for declaratory relief to the effect that USF&G\u2019s policy obligated USF&G to defend and indemnify HLM with respect to Priemann\u2019s claim.\nAt the time of Priemann\u2019s alleged injury, USF&G\u2019s policy with HLM provided that USF&G would \u201cpay on behalf of the insured all sums which the insured shall become liable to pay as damages because of (a) bodily injury, or (b) property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage even if any of the allegations of the suit are groundless, false or fraudulent.\u201d An endorsement to the policy provided that the \u201cinsurance does not apply to bodily injury or property damage arising out of the rendering of or the failure to render any professional services by or for the named insured, including (1) the preparation or approval of maps, plans, opinions, reports, surveys, designs or specifications; and (2) supervisory, inspection or engineering services.\u201d\nContinental\u2019s insurance policy with HLM stated that Continental agreed \u201cto pay on behalf of the insured all sums in excess of the insured\u2019s deductible, which the insured shall become legally obligated to pay as damages if such legal liability arises out of the performance of professional services for others in the insured\u2019s capacity as an architect or engineer and if such legal liability is caused by an error, omission or negligent act of the insured or any person or organization for whom the insured is legally liable.\u201d\nUSF&G\u2019s motion for summary judgment argued that HLM\u2019s potential liability for Priemann\u2019s alleged construction-site injuries could be based only on HLM\u2019s fault in connection with its professional architectural services -within the purview of the Continental professional liability policy of insurance and within the meaning of the professional-services exclusion endorsed to the USF&G policy. Continental opposed the motion and filed a cross-motion for summary judgment on its counterclaim for declaratory relief.\nIn allowing USF&G\u2019s motion for summary judgment, the trial court specifically found that the professional-services exclusion of the USF&G policy was applicable and that no coverage or duty to defend existed under the USF&G insurance policy. The trial court also determined that there was coverage and a duty to defend under Continental\u2019s policy. Continental appeals from the trial court\u2019s entry of summary judgment in favor of USF&G on its declaratory judgment action.\nOpinion\nSummary judgment is properly entered where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1005(c); see Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Continental argues that there are such genuine issues of material fact because evidence pertaining to Priemann\u2019s complaint may establish that HLM\u2019s activities at the jobsite were more in the nature of a \u201cdesign/ build architect\u201d rather than a \u201ctraditional architect.\u201d As explained by Continental, a \u201ctraditional architect\u2019s\u201d duties during construction are limited to occasional supervision of activities at the jobsite, whereas a \u201cdesign/build architect\u2019s\u201d responsibilities during construction entail broad, daily supervisory functions more in the nature of a general contractor. (See generally Block, As the Walls Came Tumbling Down: Architects\u2019 Expanding Liability Under Design-Build/Construction Contracting, 17 John Marshall L. Rev. 1 (1984).) Based upon this distinction, Continental reasons that because its professional liability insurance policy covered only HLM\u2019s \u201ctraditional architectural\u201d services, and not HLM\u2019s \u201cdesign/build architectural\u201d services, Continental would not be obligated to defend or indemnify HLM with regard to Priemann\u2019s Structural Work Act claim.\nThe possibility that the evidence to support Priemann\u2019s claim may vary from the allegations in his complaint does not relieve Continental of a duty to defend HLM in Priemann\u2019s claim. In determining whether an insurer has a duty to defend or indemnify an insured, this court must look to the allegations of the underlying complaint. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245.) Priemann alleges'that HLM was the \u201carchitect,\u201d that HLM was \u201cin charge of\u201d construction at the jobsite, and that it failed to perform certain acts in this capacity which proximately caused Priemann\u2019s injury. These factual allegations pertain to HLM\u2019s performance of \u201cprofessional services,\u201d and fall within the purview of Continental\u2019s professional liability policy. (See Sheppard, Morgan & Schwaab, Inc. v. United States Fidelity & Guaranty Co. (1976), 44 Ill. App. 3d 481, 358 N.E.2d 305; Wheeler v. Aetna Casualty & Surety Co. (1973), 11 Ill. App. 3d 841, 298 N.E.2d 329, vacated as moot (1974), 57 Ill. 2d 184, 311 N.E.2d 134.) Accordingly, the trial court did not err in entering summary judgment in favor of USF&G.\nContinental contends that its suggested distinction between a \u201ctraditional architect\u201d and a \u201cdesign/build architect\u201d is inherent in the allegations of Priemann\u2019s Structural Work Act claim. Continental maintains that because its professional liability insurance policy covered only HLM\u2019s \u201ctraditional architectural services,\u201d but not HLM\u2019s performance of design/build architectural services,\u201d Continental is not obligated to defend or indemnify HLM with regard to Priemann\u2019s claim.\nEven if we assume arguendo that Priemann\u2019s allegations refer to \u201cdesign/build\u201d architectural services, we are not persuaded that Continental\u2019s professional liability policy does not apply to such circumstances. Continental\u2019s policy does not define the terms \u201carchitect\u201d or \u201cprofessional services.\u201d The policy also does not specifically exclude claims arising from HLM\u2019s jobsite activities as a \u201cdesign/build\u201d architect, even though it excludes from coverage claims arising out of specified activities performed by HLM at a jobsite (such as surveys of subsurface conditions or ground tests). Continental\u2019s distinction between a \u201ctraditional architect\u201d and a \u201cdesign/build\u201d architect is not reflected in its policy coverage. As a result, Continental\u2019s suggested reasoning does not support the conclusion that HLM\u2019s alleged activities do not amount to \u201cprofessional services\u201d covered by Continental\u2019s policy.\nContinental also urges that the trial court\u2019s order was erroneous because it relieved USF&G of a duty to defend HLM, as well as any responsibility to indemnify HLM. Continental maintains that USF&G has an obligation to defend HLM in the Priemann action even if it is later determined that USF&G has no duty to indemnify HLM with respect to the lawsuit. An insurer\u2019s duty to defend is determined by its contractual obligations and according to the allegations of the underlying suit. (See Tuell v. State Farm Fire & Casualty Co. (1985), 132 Ill. App. 3d 449, 452, 477 N.E.2d 70.) USF&G\u2019s policy expressly states that \u201cthe insurance does not apply to bodily injury or property damage arising out of the rendering of or failure to render any professional services\u201d by HLM. Because the terms of the policy expressly exclude a duty to defend or indemnify in the event that liability resulted from the performance of \u201cprofessional services,\u201d and because the allegations of Priemann\u2019s complaint indicate that HLM\u2019s liability is premised upon HLM\u2019s performance of \u201cprofessional services,\u201d there was no coverage under the USF&G policy and USF&G has no duty to either defend or indemnify HLM in the Priemann action.\nFor the reasons stated, the order of the trial court is affirmed.\nAffirmed.\nJOHNSON and LINN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McMORROW" } ], "attorneys": [ "Haskell & Perrin, of Chicago (Stephen Sonderby and Stephen J. Krig-baum, of counsel), for appellant.", "Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Henry J. Marquard and Nancy Jo Arnold, of counsel), for appellee." ], "corrections": "", "head_matter": "UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appel-lee, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant.\nFirst District (4th Division)\nNo. 85\u20141721\nOpinion filed February 19, 1987.\nRehearing denied April 9, 1987.\nHaskell & Perrin, of Chicago (Stephen Sonderby and Stephen J. Krig-baum, of counsel), for appellant.\nKralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Henry J. Marquard and Nancy Jo Arnold, of counsel), for appellee." }, "file_name": "0185-01", "first_page_order": 207, "last_page_order": 212 }