{ "id": 456123, "name": "AMERICAN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees (Jamie Navarrete et al., Defendants)", "name_abbreviation": "American States Insurance v. Liberty Mutual Insurance", "decision_date": "1997-07-10", "docket_number": "No. 1\u201496\u20141669", "first_page": "336", "last_page": "342", "citations": [ { "type": "official", "cite": "291 Ill. App. 3d 336" } ], "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", "year": 1985, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568931 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0130-01" ] }, { "cite": "632 N.E.2d 1039", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780291 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/158/0116-01" ] }, { "cite": "649 N.E.2d 946", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 898", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249081 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "906" }, { "page": "907" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0898-01" ] }, { "cite": "601 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "476" } ], "opinion_index": 0 }, { "cite": "33 Mass. App. Ct. 446", "category": "reporters:state", "reporter": "Mass. App. Ct.", "case_ids": [ 4010474 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/mass-app-ct/33/0446-01" ] }, { "cite": "641 N.E.2d 855", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887258 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1055" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/1049-01" ] }, { "cite": "173 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "30 Ill. App. 2d 69", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790069 ], "year": 1961, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0069-01" ] }, { "cite": "572 N.E.2d 962", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 319", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2605994 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "321-22" }, { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0319-01" ] }, { "cite": "273 N.E.2d 360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "49 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911212 ], "year": 1971, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0108-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "125" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] } ], "analysis": { "cardinality": 539, "char_count": 12981, "ocr_confidence": 0.784, "pagerank": { "raw": 1.2862458202528983e-07, "percentile": 0.618749008146807 }, "sha256": "479ac869299b819c5f63f02dc9134da36e54e07ad5e72403b9558a9cb089bccb", "simhash": "1:4fc16e713a78bdda", "word_count": 2081 }, "last_updated": "2023-07-14T16:38:08.144333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERICAN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees (Jamie Navarrete et al., Defendants)." ], "opinions": [ { "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\n. American States sued Liberty Mutual, seeking contribution of defense costs arising from an underlying suit. Liberty Mutual moved for summary judgment, claiming that it did not have a duty to defend the underlying action. The trial court granted Liberty Mutual\u2019s motion for summary judgment. American States appeals. We affirm.\nFACTS\nThe plaintiff-appellant in this case is American States Insurance Company (American States). The defendants below were Liberty Mutual Insurance Company (Liberty Mutual), Turner Construction Company (Turner), Jamie Navarrete (Jamie), and Leticia Navarrete (Leticia) (collectively the Navarretes). The Navarretes are married. Liberty Mutual and Turner are the defendants-appellees, collectively \"Liberty Mutual.\u201d\nTurner was the general contractor for the construction of a building at 1725 West Harrison in Chicago, Illinois. The building is part of the Rush-Presbyterian-St. Luke\u2019s Medical Center. Fisher, Albright and Masters (Fisher) was a subcontractor on the project. Jamie Navarrete was one of Fisher\u2019s employees.\nOn June 27, 1991, Jamie was injured at the jobsite. The Navarretes sued Turner in the law division of the circuit court of Cook County on September 8, 1992. According to the complaint, Jamie hurt his back while lifting heavy supplies through a fourth-floor window. Allegedly, there had been no other way to get those supplies to that part of the site.\nJamie claimed that he was injured because Turner had violated the Structural Work Act (740 ILCS 150/1 et seq. (West 1994)) and because Turner had been negligent. Leticia claimed loss of consortium.\nAmerican States issued a policy to Fisher (American policy). That policy contained a clause that read:\n\"WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule [Turner] but only with respect to liability arising out of \u2019your work\u2019 for that insured by or for you.\u201d\nUnder the policy, \"your work\u201d is:\n\"a. Work or operations performed by you or on your behalf; and b. Materials, parts or equipment furnished in connection with such work or operations.\u201d\nThe American policy included this provision:\n\"4. Other Insurance\nIf other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance\nThis Insurance is primary except [when certain conditions apply]. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described *** below.\u201d\nThe Liberty Mutual policy (Liberty policy) contains an identical \"other insurance\u201d provision.\nThe Liberty policy contains an additional paragraph, endorsement number seven:\n\"It is agreed that this policy does not apply to that portion of the loss for which the Insured has other valid and collectable insurance, as an Additional Insured on a Liability Insurance policy issued to a subcontractor of the Named Insured whether such policy is on a primary, excess or contingent basis.\u201d\nAmerican States agreed to undertake Turner\u2019s defense of the Navarrete suit pursuant to a reservation of rights. American States claimed that Liberty Mutual had a duty to share the defense costs for the Navarrete suit. American States sued Liberty Mutual.\nLiberty Mutual moved for summary judgement, arguing that it did not have a duty to defend the Navarrete suit. The trial court granted Liberty Mutual\u2019s motion.\nAmerican States appeals. We affirm.\nDECISION\nAmerican States admits that it has a duty to defend Turner in the underlying action. It argues that Liberty Mutual has an obligation to share that duty.\nCourts compare the allegations of the underlying complaint to the policy to determine when an insurer\u2019s duty to defend arises. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125, 607 N.E.2d 1204 (1992). The insurer has a duty to defend if the allegations of the complaint fall within, or potentially within, the policy\u2019s coverage. Outboard Marine, 154 Ill. 2d at 125.\nInsurers that issue excess policies, however, are not liable to pay defense costs before the conclusion of the underlying suit. Instead, insurers that issue primary policies have the primary duty to pay defense costs. See Automobile Underwriters, Inc. v. Hardware Mutual Casualty Co., 49 Ill. 2d 108, 112, 273 N.E.2d 360 (1971); Home Indemnity Co. v. General Accident Insurance Co. of America, 213 Ill. App. 3d 319, 321-22, 572 N.E.2d 962 (1991); Fireman\u2019s Fund Indemnity Co. v. Freeport Insurance Co., 30 Ill. App. 2d 69, 76, 173 N.E.2d 543 (1961).\nThe Liberty Mutual policy contains an endorsement number seven:\n\"It is agreed that this policy does not apply to that portion of the loss for which the Insured has other valid and collectable insurance, as an Additional Insured on a Liability Insurance policy issued to a subcontractor of the Named Insured whether such policy is on a primary, excess or contingent basis.\u201d (Emphasis added.)\nBecause of this endorsement, the trial court found that the Liberty Mutual policy was an excess policy, not a primary policy. It found that Liberty Mutual did not have a duty to defend Turner.\nAmerican States argues that endorsement seven cannot be an excess clause. Its position rests in its reading of Home Insurance Co. v. Liberty Mutual Insurance Co., 266 Ill. App. 3d 1049, 641 N.E.2d 855 (1994).\nIn Home Insurance, the Liberty Mutual policy contained an identical endorsement. This court found that this endorsement was not an excess clause. Liberty was required to share defense costs in an underlying suit.\nThe reason Liberty Mutual was liable for defense costs in Home Insurance was that the Home policy contained very specific exclusions. The Home policy did not cover the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par 59.90 et seq.) cause of action described in the underlying complaint. It did cover the negligent-failure-to-supervise count. The Liberty policy did cover the Structural Work Act action. This court found that Liberty Mutual was a primary insurer. It held that Liberty Mutual had an obligation to share the defense costs pro rata.\nAmerican States contends that the same reasoning should apply to this case. It says its policy does not cover all the allegations made in the Navarrete suit. It claims that Liberty Mutual should share the defense costs because Liberty\u2019s policy will cover those aspects of the underlying suit that American States\u2019 policy does not cover.\nIn this case, there is no obvious exclusion in the American State\u2019s policy. Unlike Home, American States cannot argue that its policy clearly excludes a specific cause of action described in the Navarrete complaint.\nIn Home Insurance, this court suggested that the result might have been different had the Home policy not contained a specific exclusion. Liberty argued that in Transamerica Insurance Group v. Turner Construction Co., 33 Mass. App. Ct. 446, 601 N.E.2d 473 (1992), the same endorsement had been found to render Liberty\u2019s coverage excess.\nWe considered Transamerica and found:\n\"The case does involve Turner and Liberty, and the Liberty endorsement is the same as the Liberty endorsement in this case; but there is one glaring distinction between that case and the case before us. The subcontractor in that case agreed to indemnify Turner 'for all claims arising out of or occurring in connection with the execution of the Work.\u2019 \u201d (Emphasis in original.) Home, 266 Ill. App. 3d at 1055, quoting Transamerica, 33 Mass. App. Ct. at 450, 601 N.E.2d at 476.\nIn the case before us, the American policy contains a similar provision:\n\"WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule [Turner] but only with respect to liability arising out of 'your work\u2019 for that insured by or for you.\u201d\nAmerican States claims that the clause in Transamerica is different from the clause in this case. The policy in Transamerica covered \"all claims\u201d arising from the work. Here, American States\u2019 policy covers \"liability\u201d arising from Fisher\u2019s work. American States cites no decision holding that these phrases are unlike enough to require a different result in this case. The \"glaring distinction\u201d we found in Home Insurance is not present in this case.\nAmerican States contends that some allegations of the Navarrete complaint are not covered by its policy. It claims there may be aspects of the Navarrete complaint that did not arise out of Fisher\u2019s work. That is, says American States, there may be aspects of the Navarrete suit that involve only Turner\u2019s work. We do not see how.\nNavarrete was working for Fisher at the time of the accident. The underlying complaint specifically claims that Navarrete was injured while \"going about the business of his employer, [Fisher].\u201d He was doing an activity in furtherance of the work Turner hired Fisher to do.\nIn Shell Oil Co. v. AC&S, Inc., 271 Ill. App. 3d 898, 906, 649 N.E.2d 946 (1995), a subcontractor had a contract that required any relevant insurance policy to \"include! ] OWNER and CONTRACTOR as additional insureds as regards their liability arising out of operations performed for OWNER and CONTRACTOR by SUBCONTRACTOR under this Subcontract.\u201d (Emphasis in original.) Its insurance contract contained similar language. A subcontractor\u2019s employee was injured on the owner\u2019s premises. This court found that the insurer was obligated to defend the action because the underlying plaintiff\u2019s injuries \"arose out of\u201d operations performed for the owner and subcontractor. \"The injuries would not have occurred 'but for\u2019 [the underlying plaintiff\u2019s] employment by [the subcontractor and the subcontractor\u2019s] presence on [the owner\u2019s] premises.\u201d Shell Oil Co., 271 Ill. App. 3d at 907.\nIn this case, American claims there are a number of ways that Turner could have contributed to the accident by itself without involving \"Fisher\u2019s work.\u201d The accident occurred, however, while Jamie was working at the construction site for Fisher. We find that \"but for\u201d Jamie\u2019s employment by Fisher and Fisher\u2019s presence on the jobsite, Jamie would not have been injured. The accident arose from Fisher\u2019s work for Turner. We see no real possibility of noncoverage by the American policy.\nAmerican States contends that the trial court\u2019s finding should be reversed because it amounts to a de facto finding that Liberty Mutual will not be liable to indemnify it at the conclusion of the underlying suit. It says trial courts should not make any findings concerning an insurer\u2019s right to indemnification before the underlying suit is completed. See National Union Fire Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 632 N.E.2d 1039 (1994).\nThe trial court specifically found that American States could later seek indemnity from Liberty Mutual. We agree. Just because Liberty Mutual is not obligated to pay for defense costs now does not mean it never will be liable. The Liberty Mutual policy states that it will apply to \"that portion of the loss for which the Insured has other valid and collectable insurance.\u201d\nAmerican States has not said that once its policy is exhausted, the Liberty Mutual policy will not \"kick in.\u201d No party has claimed that, within the limits provided in the Liberty policy, Liberty Mutual will not have to pay for any portion of the judgment not covered by American States\u2019 policy. The trial court\u2019s order did not exclude Liberty from all potential liability.\nAmerican States claims that the Liberty endorsement is ambiguous. We do not agree. The clear intent of the Liberty endorsement is to avoid obligation for any losses covered by other insurance. While the endorsement does not specifically say that the Liberty policy is an excess policy, it becomes active only when other insurance policies are exhausted.\nAmerican States claims that the Liberty policy cannot be excess because Turner paid more for the Liberty policy than Fisher paid for the American policy. It cites Illinois Emcasco Insurance Co. v. Continental Casualty Co., 139 Ill. App. 3d 130, 487 N.E.2d 110 (1985). That case however, \"involved the 'unique and special coverage\u2019 of an umbrella policy.\u201d Home Indemnity Co., 213 Ill. App. 3d at 324. We conclude the policy fees do not establish which policy is primary and which is excess.\nCONCLUSION\nThe trial court\u2019s order granting summary judgment to Liberty Mutual is affirmed.\nAffirmed.\nCERDA and BURKE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WOLFSON" } ], "attorneys": [ "Kilgallon, Carlson & Simkus, of Chicago (Keith G. Carlson, of counsel), for appellant.", "Joseph P. Postel, of Meachum & Hittle, of Chicago, for appellees." ], "corrections": "", "head_matter": "AMERICAN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees (Jamie Navarrete et al., Defendants).\nFirst District (4th Division)\nNo. 1\u201496\u20141669\nOpinion filed July 10, 1997.\nKilgallon, Carlson & Simkus, of Chicago (Keith G. Carlson, of counsel), for appellant.\nJoseph P. Postel, of Meachum & Hittle, of Chicago, for appellees." }, "file_name": "0336-01", "first_page_order": 354, "last_page_order": 360 }