{ "id": 2605994, "name": "THE HOME INDEMNITY COMPANY, Indiv. and as Subrogee of Crawford and Russell, Inc., Plaintiff-Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Defendant-Appellee (Shand Morahan and Company, Inc., Indiv. and as Agent of General Accident Insurance Company of America, Defendant)", "name_abbreviation": "Home Indemnity Co. v. General Accident Insurance Co. of America", "decision_date": "1991-02-19", "docket_number": "No. 1\u201489\u20141948", "first_page": "319", "last_page": "325", "citations": [ { "type": "official", "cite": "213 Ill. App. 3d 319" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "487 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568931 ], "weight": 2, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0130-01" ] }, { "cite": "358 N.E.2d 914", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2812924 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0744-01" ] }, { "cite": "24 Tort & Ins. L.J. 715", "category": "journals:journal", "reporter": "Tort & Ins. L.J.", "year": 1989, "pin_cites": [ { "page": "717-18", "parenthetical": "and citations therein" } ], "opinion_index": 0 }, { "cite": "216 N.E.2d 665", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "669" }, { "page": "669" } ], "opinion_index": 0 }, { "cite": "34 Ill. 2d 424", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2877607 ], "weight": 3, "pin_cites": [ { "page": "431" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0424-01" ] }, { "cite": "430 N.E.2d 1079", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "pin_cites": [ { "page": "1082" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082811 ], "year": 1966, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0444-01" ] }, { "cite": "441 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 955", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5453909 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0955-01" ] }, { "cite": "529 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 837", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514713 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "843-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0837-01" ] }, { "cite": "269 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "99" }, { "page": "100-02" } ], "opinion_index": 0 }, { "cite": "48 Ill. 2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906633 ], "weight": 2, "pin_cites": [ { "page": "76" }, { "page": "77-82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0071-01" ] }, { "cite": "173 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "30 Ill. App. 2d 69", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790069 ], "weight": 2, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0069-01" ] }, { "cite": "311 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "pin_cites": [ { "page": "334-35" } ], "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2694777 ], "year": 1961, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0265-01" ] }, { "cite": "510 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 404", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544666 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0404-01" ] }, { "cite": "403 N.E.2d 680", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226629 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/1003-01" ] }, { "cite": "514 N.E.2d 150", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "118 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188258 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0023-01" ] }, { "cite": "494 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "650" }, { "page": "650-51" } ], "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 175", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536083 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "199" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0175-01" ] }, { "cite": "556 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474244 ], "pin_cites": [ { "page": "955" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0950-01" ] }, { "cite": "549 N.E.2d 1348", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 473", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499400 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0473-01" ] } ], "analysis": { "cardinality": 669, "char_count": 13259, "ocr_confidence": 0.771, "pagerank": { "raw": 3.0483469804319223e-07, "percentile": 0.8557794296115333 }, "sha256": "8fa93c6dee10bb6bd28180a80d4142059c8d9a1cad118330059d0bee8eaa2424", "simhash": "1:a166b0ec72f505dd", "word_count": 2159 }, "last_updated": "2023-07-14T21:36:27.836966+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE HOME INDEMNITY COMPANY, Indiv. and as Subrogee of Crawford and Russell, Inc., Plaintiff-Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Defendant-Appellee (Shand Morahan and Company, Inc., Indiv. and as Agent of General Accident Insurance Company of America, Defendant)." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiff Home Indemnity Company (Home) appeals an order of the circuit court of Cook County granting defendant General Accident Insurance Company of America\u2019s (General) motion to dismiss plaintiff\u2019s claim seeking partial reimbursement of defense costs plaintiff incurred in defending claims against subrogor Crawford & Russell. For the following reasons, we affirm.\nIn 1986, five personal injury suits were filed against Crawford & Russell, an architectural and engineering firm, in connection with an explosion at a plant, alleging that the explosion was caused in part by Crawford & Russell\u2019s designs. Crawford & Russell was an additional named insured on a policy issued by Home to the John Brown Group, Inc., covering comprehensive general liability, contractual liability, personal injury liability and employee benefits liability. In addition, Crawford & Russell had purchased an architects and engineers professional liability policy from General. The General policy had a $1 million deductible.\nAfter receiving notice of the personal injury claims, Crawford & Russell filed suit against Home, alleging that Home had a duty to defend them. In 1988, the trial court found that Home had a duty to defend Crawford & Russell, although the record is unclear as to whether that duty extended to all of the underlying claims. The record does not indicate whether General was notified of these early proceedings.\nOn February 17, 1988, Home filed a complaint against General and Shand Moraban & Company (Shand), an agent of General, seeking a declaratory judgment that both the Home and General policies were primary policies covering the personal injury claims, and seeking damages under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767). On May 9, 1989, the trial court granted Shand\u2019s motion to dismiss the claims against Shand and General\u2019s motion to dismiss the statutory claims against General. The trial court also requested supplemental briefs on the issue of whether General had a duty to defend Crawford & Russell in the personal injury claims.\nOn June 20, 1989, after hearing argument on the issue, the trial court granted General\u2019s motion to dismiss the remainder of Home\u2019s complaint against General, ruling that Home was the primary insurer and General was an excess insurer that did not have a duty to pay a pro rata share of the defense costs. This appeal followed.\nPlaintiff contends on appeal that the trial court erred in dismissing its claim, which sought to have General contribute to the cost of defending Crawford & Russell in the underlying suits. Home argues that General should have been found to be a \u201cconcurrent primary insurer.\u201d In reviewing a dismissal, this court may uphold the decision on any basis found in the record. E.g., In re Marriage of Wilson (1990), 193 Ill. App. 3d 473, 549 N.E.2d 1348.\nThe initial issue on appeal is whether the trial court erred in finding the Home policy to be primary insurance and the General policy to be excess, because the doctrine of equitable contribution does not apply to primary/excess insurer issues. (United States Fidelity & Guaranty Co. v. Continental Casualty Co. (1990), 198 Ill. App. 3d 950, 955, 556 N.E.2d 671, 675.) Contribution among co-insurers may arise where the policies cover a risk on the same basis and there is an identity between the policies as to parties and insurable interests and risks. (See Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 494 N.E.2d 634, aff'd (1987), 118 Ill. 2d 23, 514 N.E.2d 150; Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 403 N.E.2d 680.) In contrast, by their very nature, primary and excess policies do not cover the same risks; the protections under the excess policy do not begin until those of the primary policy end. (See Pekin Insurance Co. v. Cincinnati Insurance Co. (1987), 157 Ill. App. 3d 404, 510 N.E.2d 524.) Thus, a primary insurer has the primary duty to defend and pay defense costs. See Occi dental Fire & Casualty Co. v. Underwriters at Lloyd\u2019s, London (1974), 19 Ill. App. 3d 265, 271, 311 N.E.2d 330, 334-35; Fireman\u2019s Fund Indemnity Co. v. Freeport Insurance Co. (1961), 30 Ill. App. 2d 69, 76, 173 N.E.2d 543, 546.\nThe question then becomes one of determining whether the policies are primary or excess. Home urges this court to determine the respective liabilities of the insurers based on a construction of the entirety of each policy. General argues that this determination is controlled largely by what are commonly referred to as the \u201cother insurance\u201d clauses in each policy. \u201cOther insurance\u201d clauses, which are designed to reduce multiple recoveries, generally fall into three categories: \u201cpro rata\u201d clauses, \u201cexcess\u201d clauses and \u201cescape\u201d clauses. Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 76, 269 N.E.2d 97, 99.\nIn Putnam, the Illinois Supreme Court discussed several theories other jurisdictions applied to decide cases where there are \u201cexcess\u201d or \u201cescape\u201d clauses in each of two policies which may cover a loss. The supreme court resolved the case on the basis of the actual language of the two \u201cother insurance\u201d clauses of the respective policies, rejecting the theory that where there are two \u201cother insurance\u201d clauses the two policies should automatically be pro rated. Two identical \u201cother insurance\u201d clauses will be disregarded, with a resulting apportionment of costs; however, a policy with an \u201cexcess\u201d clause does not activate the \u201cpro rata\u201d clause of another policy. Putnam, 48 Ill. 2d at 77-82, 269 N.E.2d at 100-02.\nThis court applied the same approach in two later cases, determining that where one policy has a \u201cpro rata\u201d clause and another policy contains an \u201cexcess\u201d clause, the former policy is primary and the latter policy is excess. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243; Honeywell, Inc. v. American Motorists Insurance Co. (1982), 109 Ill. App. 3d 955, 441 N.E.2d 348.) Thus, despite Home\u2019s repeated assertions to the contrary, our courts have determined whether a policy provides primary or excess coverage by reference to the \u201cother insurance\u201d clauses of the policies.\nIn this case, the record shows that the \u201cother insurance\u201d clauses in the policies are quite similar to the clauses at issue in Deer-field Management. (See Deerfield Management, 174 Ill. App. 3d at 843-44, 529 N.E.2d at 248.) Under Deerfield Management, Home\u2019s policy contains a \u201cpro rata\u201d clause, whereas General\u2019s policy contains an \u201cexcess\u201d clause. Consequently, the trial court did not abuse its discretion in deciding that the Home policy was primary insurance and the General policy was excess insurance, based on the record in this case. Nor did the trial court abuse its discretion in holding that General, as the excess carrier, did not have to pay defense costs; the Deerfield Management court affirmed a similar judgment.\nHome argues that the \u201cother insurance\u201d clauses do not excuse General from a pro rata share of defense costs, citing the proposition that the duty to defend is broader than the duty to pay for a loss. (See, e.g., Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079, 1082.) Home further asserts in its reply brief that \u201closs should not fall irrevocably upon that insurer which first recognizes its obligations, while one neglectful of its duty is allowed to escape.\u201d New Amsterdam Casualty Co. v. Certain Underwriters at Lloyd\u2019s, London (1966), 34 Ill. 2d 424, 431, 216 N.E.2d 665, 669.\nThe record in this case does indicate that the General policy contains a broad \u201cduty to defend\u201d clause that is similar to the corresponding clause in the Home policy. Home\u2019s argument, however, fails to recognize that excess coverage may arise not only by drafting a policy which, on its face, provides excess coverage, but also may arise by \u201ccoincidence,\u201d where, as here, the interpretation of two \u201cother insurance\u201d clauses renders one policy excess. (See Marick, Excess Insurance: An Overview of General Principles and Current Issues, 24 Tort & Ins. L.J. 715, 717-18 (1989) (and citations therein).) Indeed, it is in \u201ccoincidence\u201d cases such as the present appeal that one insurer is more likely to seek partial reimbursement from another, for the terms of a facially excess policy may preclude such a claim. See 24 Tort & Ins. L.J. at 729 & n.59.\nFor example, in New Amsterdam Casualty Co., the supreme court held that the New Amsterdam policy was excess by coincidence with the Lloyd\u2019s policy. Nevertheless, New Amsterdam had defended the insured because Lloyd\u2019s, which should have had the primary duty to defend, refused to defend the insured. The effect of that refusal was that there was no \u201cvalid and collectible other insurance\u201d with which the New Amsterdam policy could coincide. The supreme court allowed New Amsterdam, as the excess carrier, to recoup defense costs from Lloyd\u2019s, rejecting the argument that the \u201cother insurance\u201d clauses applied only to the duty to pay losses and not to the duty to defend and pay defense costs. (See New Amsterdam Casualty Co., 34 Ill. 2d at 431, 216 N.E.2d at 669.) Consequently, New Amsterdam Casualty Co. does not aid Home\u2019s case.\nWe note at this point that Home brought suit against General both individually and as a subrogee of Crawford & Russell. Home, however, cited no authority to support a subrogation theory, thus waiving any such argument. (134 Ill. 2d R. 341(e)(7).) We further note, in passing that prior cases in which one insurer sought reimbursement from another on a subrogation theory were pursued by the excess insurer, rather than the primary insurer. New Amsterdam Casualty Co., 34 Ill. 2d 424, 216 N.E.2d 665; Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914; Fireman\u2019s Fund Indemnity Co., 30 Ill. App. 2d 69,173 N.E.2d 543.\nOne case cited by General took the approach advocated by Home, looking to the entirety of the policies to determine who should bear the costs of indemnification and defense. (Illinois Emcasco Insurance Co. v. Continental Casualty Co. (1985), 139 Ill. App. 3d 130, 487 N.E.2d 110.) That case is distinguishable insofar as it involved the \u201cunique and special coverage\u201d of an umbrella policy. (Illinois Emcasco Insurance Co., 139 Ill. App. 3d at 133, 487 N.E.2d at 112.) Nonetheless, even if the trial court had taken the Emcasco approach, the record would support the court\u2019s decision. After- all, an examination of the entire General policy must necessarily include an examination of General\u2019s \u201cother insurance\u201d clause. Home has failed to point to any portion of the General policy aside from the \u201cother insurance\u201d clause which indicates that the General policy should be construed as primary insurance where Home\u2019s policy applies. Thus, given the record in this case, Home has failed to show that the trial court abused its discretion.\nThe Illinois cases upon which Home relies are inapposite. Zurich Insurance Co. (145 Ill. App. 3d 175, 494 N.E.2d 634) allowed in dictum that there may be apportionment between insurers, but the insurers referred to in that discussion were all primary insurers. (See Zurich Insurance Co., 145 Ill. App. 3d at 199, 494 N.E.2d at 650.) Moreover, the trial court had reserved its ruling on that issue and we therefore professed no opinion about it. (Zurich Insurance Co., 145 Ill. App. 3d at 200, 494 N.E.2d at 650-51.) Our refusal to order pro rata apportionment of defense costs was upheld on appeal to our supreme court. Zurich Insurance Co., 118 Ill. 2d at 57, 514 N.E.2d at 165.\nHome\u2019s reliance on Audit Bureau of Corrections v. ISLIC (Cir. Ct. Cook County, March 1987), No. 84 \u2014 L\u201450052, is misplaced for at least three reasons. First, it is axiomatic that an unpublished decision of a trial court in another case does not bind this court in any way. Second, Home has failed to point to anything in the transcript regarding the language of the policies at issue in that case, making a comparison to the policies in this case all but impossible. Finally, the record reflects that the trial judge in Audit Bureau of Corrections, who also presided over the present case, specifically stated on the last page of the transcript of the proceedings that he did not rule on the consequences of having two primary policies.\nFor all of the aforementioned reasons, Home has failed to demonstrate that the trial court erred in granting General\u2019s motion to dismiss. Consequently, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nBUCKLEY and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Brinton, Bollinger & Ruberry, of Chicago (John D. Kuhn and Debra Criche Hell, of counsel), for appellant.", "Tribler & Orpett, P.C., of Chicago (Willis R. Tribler and D.J. Sartorio, of counsel), for appellee." ], "corrections": "", "head_matter": "THE HOME INDEMNITY COMPANY, Indiv. and as Subrogee of Crawford and Russell, Inc., Plaintiff-Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Defendant-Appellee (Shand Morahan and Company, Inc., Indiv. and as Agent of General Accident Insurance Company of America, Defendant).\nFirst District (1st Division)\nNo. 1\u201489\u20141948\nOpinion filed February 19, 1991.\nRehearing denied June 7, 1991.\nBrinton, Bollinger & Ruberry, of Chicago (John D. Kuhn and Debra Criche Hell, of counsel), for appellant.\nTribler & Orpett, P.C., of Chicago (Willis R. Tribler and D.J. Sartorio, of counsel), for appellee." }, "file_name": "0319-01", "first_page_order": 341, "last_page_order": 347 }