{ "id": 3547330, "name": "DOMINICK'S FINER FOODS, INC., Plaintiff-Appellant, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Dominick's Finer Foods, Inc. v. American Manufacturers Mutual Insurance", "decision_date": "1987-10-29", "docket_number": "No. 86\u20141730", "first_page": "149", "last_page": "153", "citations": [ { "type": "official", "cite": "163 Ill. App. 3d 149" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "619 F.2d 1178", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1376840 ], "year": 1978, "pin_cites": [ { "page": "1183" } ], "opinion_index": 0, "case_paths": [ "/f2d/619/1178-01" ] }, { "cite": "414 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "260" }, { "page": "260" } ], "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3151876 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "150" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0148-01" ] }, { "cite": "384 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "339" }, { "page": "339-40" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994842 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "144" }, { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0132-01" ] }, { "cite": "442 N.E.2d 245", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "92 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098596 ], "year": 1978, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0388-01" ] }, { "cite": "495 A.2d 152", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "474 N.E.2d 1272", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495098 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0806-01" ] }, { "cite": "585 F. Supp. 739", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7861187 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/f-supp/585/0739-01" ] }, { "cite": "422 F.2d 587", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2254630 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f2d/422/0587-01" ] }, { "cite": "654 F.2d 494", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1257859 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/654/0494-01" ] } ], "analysis": { "cardinality": 517, "char_count": 9177, "ocr_confidence": 0.767, "pagerank": { "raw": 1.5198282207775157e-07, "percentile": 0.6690886225413142 }, "sha256": "eeaaa392dd3a628e30e56dc0dd5ef681d5b8168f907eb4f6d690f98d62a0d115", "simhash": "1:5ece51debe7914cd", "word_count": 1425 }, "last_updated": "2023-07-14T17:50:46.695850+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOMINICK\u2019S FINER FOODS, INC., Plaintiff-Appellant, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nPlaintiff, Dominick\u2019s Finer Foods, Inc. (hereinafter referred to as Dominick\u2019s), appeals from a declaratory judgment action in which it sought a determination that defendant, American Manufacturers Mutual Insurance Company (hereinafter referred to as American), was obligated to defend and indemnify it in an underlying tort action. Dominick\u2019s based this assertion upon a vendor\u2019s endorsement provision in an insurance policy issued by American to Coca-Cola Bottling Company of Chicago and Wisconsin, Inc. (hereinafter referred to as Coca-Cola), in which it was named as an additional insured. American refused to defend, declining coverage. Both Dominick\u2019s and American filed motions for summary judgment. The trial court entered judgment in favor of American, declaring that the vendor\u2019s endorsement only covered claims arising from the product itself. Dominick\u2019s appeals, raising three issues: (1) whether the occurrence alleged is within the purview of the vendor\u2019s endorsement and, therefore, imposes on American a duty to defend Dominick\u2019s; (2) whether the occurrence alleged falls within the parameters of the vendor\u2019s endorsement, thereby requiring American to defend and indemnify Dominick\u2019s; and (3) whether the trial court erred when it construed the vendor\u2019s endorsement to provide coverage only for claims arising out of the product itself.\nWe affirm.\nThe record reveals that on March 21, 1983, George Peters, an employee of Coca-Cola, was injured while making a delivery of Coca-Cola\u2019s products to a Dominick\u2019s food store. Peters filed suit against Dominick\u2019s on September 28, 1984, seeking damages for personal injury. In his complaint, Peters claimed to have been injured when he slipped and fell on a Dominick\u2019s loading dock. He alleged that his accident was the result of the slippery and dangerous condition of the dock. Peters does not claim that his injuries were attributable to the containers of Coca-Cola products he was delivering.\nDominick\u2019s tendered defense of the Peters lawsuit to American pursuant to an insurance policy American issued to Coca-Cola containing a vendor\u2019s endorsement which named Dominick\u2019s as an additional insured. American refused to provide a defense to Dominick\u2019s claiming that the occurrence alleged in the Peters complaint was not within the coverage provided by the vendor\u2019s endorsement. Dominick\u2019s brought this action for declaratory judgment. On cross-motions for summary judgment, the trial court ruled in favor of American. Dominick\u2019s appeals.\nThe vendor\u2019s endorsement considered here provides as follows:\n\u201cAdditional Insured (Vendors \u2014 Broad Form)\nIt is agreed that the \u2018Persons Insured\u2019 provision is amended to include any person or organization designated below (herein referred to as \u2018vendor\u2019), as an insured, but only with respect to the distribution or sale in the regular course of the vendor\u2019s business of the named insured\u2019s products designated below subject to the following additional provisions:\n1. The insurance with respect to the vendor does not apply to:\n(a) any express warranty unauthorized by the named insured:\n(b) bodily injury or property damage arising out of\n(i) any physical or chemical change in the form of the product made intentionally by the vendor:\n(ii) repacking, unless unpacked solely for the purpose of inspection, demonstration, testing or the substitution of parts under instruction from the manufacturer and then repacked in the original container;\n(iii) demonstration, installation, servicing or repair operations, except such operations performed at the vendor\u2019s premises in connection with the sale of the product; or\n(iv) products which after distribution or sale by the named insured have been labeled or relabeled or used as a container, part or ingredient or any other thing or substance by or for the vendor.\u201d\nDominick\u2019s contends that American has a duty to defend it against the Peters action for two reasons. First, it argues that \u201cdelivery\u201d of Coca-Cola\u2019s products is contained within the meaning of \u201cdistribution.\u201d It next argues that the vendor\u2019s endorsement is an amendment to the general liability and products liability policy American issued to Coca-Cola and, therefore, extends both types of coverage to the additionally insured vendor. American contends that the declared and unambiguous intent of the vendor\u2019s endorsement is to provide coverage only for claims arising out of the product and that it does not cover vendors for their own negligence.\nThe question here presented requires analysis of the intended purpose of a vendor\u2019s endorsement. No reported Illinois case has determined the breadth of coverage provided by this policy extension. We note, however, that all the reported decisions involving this provision considered claims which arose from the product itself. (See Sears, Roebuck & Co. v. Reliance Insurance Co. (7th Cir. 1981), 654 F.2d 494; Sears, Roebuck & Co. v. Zurich Insurance Co. (7th Cir. 1970), 422 F.2d 587; Sears, Roebuck & Co. v. Employers Insurance of Wausau (N.D. Ill. 1983), 585 F. Supp. 739; Continental Casualty Co. v. Sears, Roebuck & Co. (1985), 130 Ill. App. 3d 806, 474 N.E.2d 1272.) Looking for guidance to these cases and American White Cross Laboratories, Inc. v. Continental Insurance Co. (1985), 202 N.J. Su per. 372, 495 A.2d 152, we find that the extension of a manufacturer\u2019s insurance coverage to the distributor and retailer of his products occurred as a result of the imposition of strict product liability. Under this theory, the retailer or distributor became strictly liable for injuries to the ultimate user of the product, even though he may simply be a conduit of the product and nonculpable. (See Restatement (Second) of Torts sec. 402 A (1965).) Of course, the retailer or distributor has an action over against the manufacturer (and subsequently his insurer), who bears the primary responsibility for putting the defective product into the stream of commerce. The extension of the manufacturer\u2019s insurance coverage to the vendors of the product, through a vendor\u2019s endorsement, merely alleviates the need for repetitious litigation and encourages vendors to market the product of the insured. It is, therefore, within this context that we consider the scope of this vendor\u2019s endorsement.\nIt is well settled that \u201cwhen interpreting an insurance policy, as any other contract, clear and unambiguous language must be taken in its plain, ordinary and popular sense.\u201d (Sears, Roebuck & Co. v. Employers Insurance of Wausau (N.D. Ill. 1983), 585 F. Supp. 739, 744.) The language of the vendor\u2019s endorsement here considered quite plainly does not confer the full panoply of coverage provided the insured (Coca-Cola) to the additionally insured vendor (Dominick\u2019s). It specifically limits its coverage \u201cwith respect to the distribution and sale *** of the named insured\u2019s product.\u201d Giving the ordinary, plain meaning to the term \u201cof the named insured\u2019s product,\u201d and reading the vendor\u2019s endorsement as a whole, we agree with the trial court in finding that its declared intent is to cover the vendor (Dominick\u2019s) for injuries caused by the product it has allowed into its store.\nThe Peters complaint alleges that his injury was caused by the dangerous and slippery condition of a loading dock at a Dominick\u2019s store. His injury did not arise out of the product and American properly declined coverage.\nIt is the equ\u00e1lly well-established rule in Illinois that the duty of an insurer to defend an action brought against the insured is to be determined solely from the allegations of the complaint. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245, 247; Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335, 339; Novak v. Insurance Administration Unlimited, Inc. (1980), 91 Ill. App. 3d 148, 150, 414 N.E.2d 258, 260.) An insurer may-refuse the tendered defense of an action, however, where a comparison of the policy with the underlying complaint shows on its face that there is no potential for coverage. (Solo Cup Co. v. Federal Insurance Co. (7th Cir. 1980), 619 F.2d 1178, 1183; Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335, 339-40; Novak v. Insurance Administration Unlimited, Inc. (1980), 91 Ill. App. 3d 148, 150, 414 N.E.2d 258, 260.) The allegations in the underlying complaint here show no potential for coverage and American, therefore, has no duty to defend. Having reaching this conclusion, we do not find it necessary to consider the other contentions raised by Dominick\u2019s.\nFor the foregoing reasons the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMcMORROW, P.J., and LINN, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Thomas J. Andrews and Charles P. Rantis, both of Johnson, Cusack & Bell, of Chicago (Thomas H. Fegan, of counsel), for appellant.", "McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Richard M. Clark, and Christine L. Olson, of counsel), for appellee. -" ], "corrections": "", "head_matter": "DOMINICK\u2019S FINER FOODS, INC., Plaintiff-Appellant, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendant-Appellee.\nFirst District (4th Division)\nNo. 86\u20141730\nOpinion filed October 29, 1987.\nThomas J. Andrews and Charles P. Rantis, both of Johnson, Cusack & Bell, of Chicago (Thomas H. Fegan, of counsel), for appellant.\nMcKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Richard M. Clark, and Christine L. Olson, of counsel), for appellee. -" }, "file_name": "0149-01", "first_page_order": 171, "last_page_order": 175 }