{ "id": 4274545, "name": "STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, as Successor in Interest to and Real Party in Interest in Place of Meridian Mutual Insurance Company, Plaintiff-Appellee, v. HABITAT CONSTRUCTION COMPANY, Defendant-Appellant (Central Building and Preservation et al., Defendants)", "name_abbreviation": "State Automobile Mutual Insurance v. Habitat Construction Co.", "decision_date": "2007-09-24", "docket_number": "No. 1-05-0365", "first_page": "281", "last_page": "294", "citations": [ { "type": "official", "cite": "377 Ill. App. 3d 281" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "862 N.E.2d 234", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "222 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "856 N.E.2d 452", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "368 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266415 ], "year": 2006, "pin_cites": [ { "page": "668-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0665-01" ] }, { "cite": "643 N.E.2d 1226", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 598", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381801 ], "year": 1994, "pin_cites": [ { "page": "653-54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0598-01" ] }, { "cite": "599 N.E.2d 1311", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5187838 ], "year": 1992, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0070-01" ] }, { "cite": "727 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "189 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224800 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0570-01" ] }, { "cite": "567 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 961", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553106 ], "year": 1991, "pin_cites": [ { "page": "966" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0961-01" ] }, { "cite": "457 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "year": 1983, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "801 N.E.2d 974", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "466 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596668 ], "year": 1984, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0150-01" ] }, { "cite": "699 N.E.2d 1056", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073560 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0805-01" ] }, { "cite": "703 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257168 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "54-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0049-01" ] }, { "cite": "722 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349573 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0501-01" ] }, { "cite": "769 N.E.2d 977", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2002, "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 228", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472430 ], "weight": 9, "year": 2002, "pin_cites": [ { "page": "238" }, { "page": "1231" }, { "page": "231" }, { "page": "231" }, { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0228-01" ] }, { "cite": "860 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "223 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604683 ], "year": 2006, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0352-01" ] }, { "cite": "846 N.E.2d 974", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2006, "opinion_index": 0 }, { "cite": "364 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262401 ], "weight": 19, "year": 2006, "pin_cites": [ { "page": "951" }, { "page": "948" }, { "page": "952" }, { "page": "950" }, { "page": "954" }, { "page": "958" }, { "page": "958" }, { "page": "958-59" }, { "page": "959" }, { "page": "958" }, { "page": "954" }, { "page": "955" }, { "page": "954" }, { "page": "962", "parenthetical": "remanding to the trial court to determine whether the State Auto policy applied on a primary or excess basis" }, { "page": "951" }, { "page": "962", "parenthetical": "remanding to the trial court to resolve the issue of indemnification" }, { "page": "951" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0946-01" ] }, { "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": 7, "year": 1992, "pin_cites": [ { "page": "102" }, { "page": "107-08" }, { "page": "108" }, { "page": "108" }, { "page": "108" }, { "page": "127" }, { "page": "107-08" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "855 N.E.2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "367 Ill. App. 3d 604", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266334 ], "year": 2006, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0604-01" ] }, { "cite": "842 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "363 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765986 ], "year": 2005, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0335-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "year": 1986, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "801 N.E.2d 1031", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2003, "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778143 ], "weight": 11, "year": 2003, "pin_cites": [ { "page": "963" }, { "page": "963" }, { "page": "972" }, { "page": "964" }, { "page": "964" }, { "page": "976" }, { "page": "963" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0960-01" ] } ], "analysis": { "cardinality": 1032, "char_count": 32586, "ocr_confidence": 0.781, "pagerank": { "raw": 1.3409769903266792e-07, "percentile": 0.6311149800625442 }, "sha256": "ed07445470399ef9ab193362d063b1912a79d7f061f1fae2c8ad0481b11140c8", "simhash": "1:0ab435cc0949f0d0", "word_count": 5185 }, "last_updated": "2023-07-14T17:30:19.728803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, as Successor in Interest to and Real Party in Interest in Place of Meridian Mutual Insurance Company, Plaintiff-Appellee, v. HABITAT CONSTRUCTION COMPANY, Defendant-Appellant (Central Building and Preservation et al., Defendants)." ], "opinions": [ { "text": "JUSTICE GARCIA\ndelivered the opinion of the court:\nIn this declaratory judgment action, the trial court granted summary judgment in favor of the plaintiff, State Automobile Mutual Insurance Company (State Auto), finding it did not have a duty to defend or indemnify the defendant, Habitat Construction Company (Habitat), in an underlying personal injury action. Habitat contends on appeal that it, rather than State Auto, was entitled to summary judgment.\nBACKGROUND\nIn 2000, a construction project for a building located at 2701 South Indiana in Chicago (the project) was underway. Habitat was the general contractor on the project, and Central Building & Preservation (Central Building) was a subcontractor hired to provide certain services. The written contract between Habitat and Central Building required Central Building to add Habitat as an additional insured on the commercial general liability policy it had in effect through State Auto, its insurer. Habitat purportedly has in effect its own liability insurance policy through Pennsylvania General Insurance Company. The record provides no information about the terms of that policy.\nThe State Auto policy contains a \u201cBlanket Additional Insured Endorsement-Primary and Non-Contributory\u201d provision, which provides, in part:\n\u201cWHO IS AN INSURED (Section II) is amended to include as an insured any person or organization whom you are required to name as an additional insured on this policy under a written contract or agreement.\n* * *\nThe insurance provided the additional insured is limited as follows:\n1. That the person or organization is only an additional insured with respect to liability arising out of:\n* * *\n(b) \u2018Your work\u2019 for that additional insured for or by you.\n* * *\n3. The insurance provided the additional insured does not apply to \u2018bodily injury,\u2019 \u2018property damage,\u2019 \u2018personal injury,\u2019 \u2018advertising injury,\u2019 or defense coverage under the Supplemental Payments section of the policy arising out of an architect\u2019s, engineer\u2019s, or surveyor\u2019s rendering of or failure to render any professional services including:\n(a) The preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, design or specifications; and\n(b) Supervisory, inspection, or engineering services.\nAny coverage provided hereunder shall be excess over any other valid and collectible insurance available to the additional insured whether primary, excess, contingent, or on any other basis unless a contract specifically requires that this insurance be noncontributory and or primary or you request that it apply on a noncontributory and or primary basis.\u201d\nThe policy defines \u201cYour work\u201d as \u201cWork or operations performed by you or on your behalf; and *** [m]aterials, parts or equipment furnished in connection with such work or operations.\u201d\nOn June 19, 2000, Larry Medolan, a Central Building employee, was allegedly injured while working on the project. On April 2, 2002, Medolan filed a one-count complaint in the circuit court of Cook County, naming Habitat, South Commons Stage One Venture, and Solomon, Cordwell, Buenz and Associates, Inc., as defendants. Central Building was not named in the complaint. Medolan alleged the defendants owned or were in charge of the project site. He also alleged \u201c[t]hat at the aforementioned time and place, [Medolan] was employed by Central Building & Preservation L.E on said premises in the furtherance of the aforesaid work.\u201d He further alleged that the defendants were present during the construction and participated in coordinating the work done, designated work methods, and had the authority to stop the work, refuse the work and materials, and order changes in the work \u201cin the event the work was being performed in a dangerous manner or for any other reason.\u201d Medolan also alleged the defendants erected a concrete wall to be used in the construction, that his \u201cduties and responsibilities *** required that he work on and about the aforesaid concrete wall,\u201d and that a section of concrete fell onto the scaffold on which he was working, injuring him. Medolan alleged, in part, that the named defendants were guilty of certain negligent acts and/or omissions, including: (1) fading to make a reasonable inspection of the premises; (2) improperly operating, managing, maintaining, and controlling the premises; (3) failing to provide him with a safe place to work; (4) failing to warn him of dangerous conditions; (5) failing to provide adequate safeguards to prevent injury to him; (6) failing to supervise the work; and (7) improperly directing workers to cut excessive amounts of concrete, which caused the area to become unstable. According to the complaint, the defendants\u2019 negligence proximately caused Medolan\u2019s injuries.\nHabitat, on May 21, 2003, filed a third-party complaint against Central Building. Habitat denied liability, but alternatively alleged that if it was found liable, Central Building engaged in certain negligent acts or omissions, including the same seven acts alleged by Medolan in his complaint. According to the third-party complaint, Central Building\u2019s negligence proximately caused Medolan\u2019s injuries.\nHabitat forwarded the Medolan complaint to Central Building for defense and indemnification. Central Building then forwarded the matter to State Auto. State Auto rejected Habitat\u2019s tender of defense and, on November 22, 2002, filed the instant action seeking a declaration that there was no coverage under the policy for Habitat with respect to the Medolan action.\nHabitat and State Auto filed cross-motions for summary judgment. After hearing arguments from the parties, the court granted State Auto\u2019s summary judgment motion and denied that of Habitat. The court concluded that under American Country Insurance Co. v. James McHugh Construction Co., 344 Ill. App. 3d 960, 801 N.E.2d 1031 (2003), State Auto had no duty to defend or indemnify Habitat under the policy. Because it so concluded, the trial court did not address whether the State Auto policy applied on a primary or excess basis. This timely appeal followed.\nANALYSIS\nHabitat contends on appeal that it, and not State Auto, is entitled to summary judgment. Habitat argues that the Medolan action falls within the policy and that State Auto has a duty to defend and indemnify it. State Auto counters that summary judgment was properly granted in its favor because the Medolan complaint is devoid of any allegation that Habitat\u2019s liability arose out of Central Building\u2019s work. State Auto also argues that the professional services exclusion of the policy bars coverage to Habitat. State Auto alternatively contends that even if we find that Habitat is covered under the policy, the coverage applies solely on an excess basis.\nI. Standard of Review\nSummary judgment is proper where \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2\u2014 1005(c) (West 2004); Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Where the parties file cross-motions for summary judgment, they invite the court to decide the issue as a matter of law. Liberty Mutual Fire Insurance Co. v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d 335, 339, 842 N.E.2d 170 (2005). However, \u201cthe mere filing of cross-motions does not preclude a determination that triable questions of fact exist.\u201d State Farm Mutual Automobile Insurance Co. v. Coe, 367 Ill. App. 3d 604, 607, 855 N.E.2d 173 (2006). The grant of summary judgment is reviewed de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).\nII. Duty to Defend\nThe issue in this case is whether State Auto had a duty to defend or indemnify Habitat under the policy. \u201cAn insurer\u2019s duty to defend an insured is much broader than its duty to indemnify.\u201d State Automobile Mutual Insurance Co. v. Kingsport Development, LLC, 364 Ill. App. 3d 946, 951, 846 N.E.2d 974 (2006). To determine whether an insurer has a duty to defend an insured, this court looks to the allegations in the underlying complaint and compares them to the relevant provisions of the insurance policy at issue. Outboard Marine Corp., 154 Ill. 2d at 107-08. The allegations in the complaint must be liberally construed in favor of the insured. Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 363, 860 N.E.2d 307 (2006). \u201cIf the facts alleged in the underlying complaint fall within, or potentially within, the policy\u2019s coverage, the insurer\u2019s duty to defend arises.\u201d Outboard Marine Corp., 154 Ill. 2d at 108.\nMany cases from this court have addressed the situation presented here: an employee of a subcontractor is injured in the course of his or her employment on a construction site and sues the general contractor, an additional insured on the subcontractor\u2019s general liability policy. See, e.g., Kingsport, 364 Ill. App. 3d 946, 846 N.E.2d 974; McHugh, 344 Ill. App. 3d 960, 801 N.E.2d 1031; National Union Fire Insurance Co. v. R. Olson Construction Contractors, Inc., 329 Ill. App. 3d 228, 769 N.E.2d 977 (2002); American Country Insurance Co. v. Cline, 309 Ill. App. 3d 501, 722 N.E.2d 755 (1999); Liberty Mutual Insurance Co. v. Westfield Insurance Co., 301 Ill. App. 3d 49, 703 N.E.2d 439 (1998); American Country Insurance Co. v. Kraemer Brothers, Inc., 298 Ill. App. 3d 805, 699 N.E.2d 1056 (1998). This court has explained:\n\u201c[T]he Illinois Workers\u2019 Compensation Act (820 ILCS 305/5(a) (West 2000)) bars injured workers from suing their own employers. Consequently, because injured construction workers cannot sue their subcontractor employers, it is common practice for them to sue the general contractor involved with the project. In realization of that possibility, general contractors will usually set up insurance requirements for their subcontractors, with the intent of passing the liability for worker injuries along to the worker\u2019s employer\u2019s insurance carrier.\u201d McHugh, 344 Ill. App. 3d at 963.\nA. Additional Insured\nWe first address whether the allegations in the Medolan complaint directed against Habitat triggered the \u201cadditional insured\u201d coverage based on liability \u201carising out of\u2019 Central Building\u2019s work on behalf of Habitat. In his complaint, Medolan alleged that at the time of his injury \u201che was employed by Central Building [and was] on said premises in furtherance of the aforesaid work.\u201d We examine the facts alleged in the complaint to determine whether they potentially fall within the policy\u2019s coverage; if so, the insurer has a duty to defend. Outboard Marine Corp., 154 Ill. 2d at 108.\nHabitat relies on cases such as Liberty Mutual Insurance Co., 301 Ill. App. 3d at 54-55, and Maryland Casualty Co. v. Chicago & North Western Transportation Co., 126 Ill. App. 3d 150, 154, 466 N.E.2d 1091 (1984), which have found \u201carising out of\u2019 language like that used in the State Auto policy to be both \u201cbroad and vague\u201d and requiring only a \u201cbut for\u201d causal connection between the accident and the named insured\u2019s work. Habitat argues that \u201cbut for\u201d the fact that Medolan was working as Central Building\u2019s employee at a project where Habitat contracted with Central Building to perform certain work, Medolan\u2019s alleged injury would not have happened.\nState Auto counters that the trial court in this case properly rejected Habitat\u2019s reliance on a \u201cbut for\u201d analysis because cases using such a test involved allegations under the now-repealed Structural Work Act (see 740 ILCS 150/0.01 et seq. (West 1994) (repealed by Pub. Act 89 \u2014 2, \u00a75, eff. February 14, 1995)). State Auto also argues that McHugh, 344 Ill. App. 3d 960, 801 N.E.2d 1031, and Olson, 329 Ill. App. 3d 228, 769 N.E.2d 977, control the outcome of this case.\nIn McHugh, we recognized the \u201ccommon practice\u201d for employees of subcontractors injured on the job to sue the general contractor involved with the project in light of the Illinois Workers\u2019 Compensation Act (820 ILCS 305/5(a) (West 2004)) bar preventing injured workers from suing their own employers. McHugh, 344 Ill. App. 3d at 963. This \u201ccommon practice\u201d often results in the general contractor placing insurance requirements on its subcontractors with the intent of passing the liability for worker injuries along to the worker\u2019s employer\u2019s insurance carrier. However, as a close examination of the cases finding no duty to defend, such as McHugh and Olson, and those finding a duty to defend, such as Kingsport, reveals, the success of that intent turns on the language of the policy under which the general contractor is named an additional insured. If there is an exclusion provision directly applicable to the facts alleged in the pending complaint against the additional insured so as to trigger that exclusion, no duty to defend arises. See McHugh, 344 Ill. App. 3d 960, 801 N.E.2d 1031; Olson, 329 Ill. App. 3d 228, 769 N.E.2d 977. However, in the absence of such a controlling exclusionary clause, we determine whether a causal connection between the accident and the named insured\u2019s work triggers a duty to defend. See Kingsport, 364 Ill. App. 3d 946, 801 N.E.2d 974.\nThus, before a \u201cbut for\u201d analysis can be applied to determine whether a duty to defend has been triggered, we first determine whether there exists any policy exclusion that deals squarely with the allegations in the complaint that would make a \u201cbut for\u201d analysis unnecessary. Where coverage for the additional insured requires that the liability arise out of named insured\u2019s operations, that coverage may further be limited to liability not arising from additional insured\u2019s own negligence. See Olson, 329 Ill. App. 3d at 238. A complaint that alleges only \u201cdirect negligence\u201d of the purported \u201cadditional insured\u201d may \u201cplace it squarely within the coverage exclusion that makes [the policy] inapplicable to allegations *** \u2018arising out of any act or omission of the additional insured(s).\u2019 \u201d McHugh, 344 Ill. App. 3d at 972. We look to McHugh and Olson to examine the exclusionary language in those cases that resulted in the respective policy being inapplicable to the underlying complaint.\nIn Olson, 329 Ill. App. 3d at 1231, the Second District determined that the provision excluding \u201c \u2018LIABILITY RESULTING FROM [THE ADDITIONAL INSURED\u2019S] OWN NEGLIGENCE OR THE NEGLIGENCE OF ITS SERVANTS, AGENTS OR EMPLOYEES\u2019 \u201d was sufficient to remove the general contractor from the protection of the subcontractor\u2019s insurance policy where the complaint alleged only negligence against the general contractor. In McHugh, 344 Ill. App. 3d at 964, this court found the provision excluding liability \u201c \u2018arising out of any act or omission of the additional insured(s) or any of their employees\u2019 \u201d to likewise place the worker\u2019s complaint outside the protection of the insurer\u2019s endorsement where only direct negligence of the general contractor was alleged in the complaint.\nWe note that \u201cnegligence\u201d is defined in the pattern jury instructions as \u201cthe failure to do something which a reasonably careful person would do [an omission], or the doing of something which a reasonably careful person would not do [an act].\u201d Illinois Pattern Jury Instructions, Civil, No. 10.01 (2000). Thus, the exclusionary provisions in Olson and McHugh are comparable as both excluded liability for a complaint alleging a negligence theory of recovery against the additional insured. We look to the State Auto policy before us to determine whether a similar exclusionary provision exists. Of course, this is precisely what the Second District in Kingsport did and found no such exclusionary provision. We then look to determine whether the \u201cbut for\u201d analysis should apply. Again, this is precisely what the Second District in Kingsport did. The parties at oral argument adopted the not surprising positions of asking that we follow Kingsport (Habitat) and that we reject Kingsport (State Auto), but neither party has sought leave to present written argument in this regard. Our own examination of Kingsport leads us to adopt and follow its holding.\nIn Kingsport, Kingsport Development, the general contractor of the construction site, was an additional insured on W.A. Anderson Construction Company\u2019s (Anderson) State Auto general liability policy, a policy containing the same language as the policy at issue in this case. Anderson was a subcontractor on the project. Halek, an Anderson employee, was injured on the construction site and filed a complaint naming Kingsport as a defendant and alleging that Kingsport\u2019s negligence proximately caused his injuries. Kingsport, 364 Ill. App. 3d at 948. The complaint also alleged Halek was an Anderson employee, he was at the construction site in the course of his employment with Anderson when the injury occurred, Kingsport was present at the site through its subcontractors, and Kingsport participated in coordinating the work and had a duty to require its subcontractors to comply with safety standards. Kingsport, 364 Ill. App. 3d at 952. State Auto filed an action in the circuit court seeking a declaration that it had no duty to defend or indemnify Kingsport under the policy. The trial court agreed and granted summary judgment in State Auto\u2019s favor. Kings-port, 364 Ill. App. 3d at 950.\nOn appeal, the Second District reversed, finding that the facts of the underlying complaint established that \u201cHalek\u2019s injuries potentially arose out of Anderson\u2019s work, and, based on the policy language, State Auto [had] a duty to defend Kingsport in the underlying suit.\u201d Kingsport, 364 Ill. App. 3d at 954.\nIn so holding, the court distinguished McHugh and Olson. The Kingsport court found the language in the State Auto policy distinguishable from that in the policy at issue in McHugh because the policy in McHugh \u201climited coverage to \u2018 \u201cacts or omissions in connection with\u201d \u2019 the insured\u2019s work for the additional insured and excluded coverage for injury \u2018 \u201carising out of any act or omission of the additional insured(s) or any of their employees.\u201d \u2019 \u201d Kingsport, 364 Ill. App. 3d at 958, quoting McHugh, 344 Ill. App. 3d at 964. The State Auto policy, however, \u201crequire[d] only that the liability arise out of Anderson\u2019s work and [did] not require a more detailed examination of whose acts and omissions are alleged to have caused the injury.\u201d Kings-port, 364 Ill. App. 3d at 958. The court in Kingsport did recognize \u201cpolicy language [in the second of three additional endorsements in the McHugh policy] that is similar to the language in this case,\u201d prompting it to disagree with McHugh\u2019s restrictive reading of that second additional endorsement resulting in coverage only \u201c \u2018 \u201cwith respect to liability arising out of [the subcontractor\u2019s] ongoing operations performed for that insured,\u201d \u2019 \u201d and, thus, excluding coverage for the direct negligence of the general contractor. Kingsport, 364 Ill. App. 3d at 958-59, quoting McHugh, 344 Ill. App. 3d at 976. According to the Kingsport court, \u201cin arriving at this conclusion, the McHugh court *** failed to construe the second endorsement\u2019s language liberally in favor of the insured.\u201d Kingsport, 364 Ill. App. 3d at 959. We do not find the Kingsport court\u2019s disagreement with McHugh on that basis causes us to question the analysis Kingsport employed in reviewing the State Auto policy before it, an analysis we otherwise agree with.\nThe Kingsport court also distinguished Olson, 329 Ill. App. 3d 228, 769 N.E.2d 977. The relevant language of the policy of the insurer, National, provided that \u201c \u2018COVERAGE SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE [ADDITIONAL INSURED\u2019S] OWN NEGLIGENCE OR THE NEGLIGENCE OF ITS SERVANTS, AGENTS OR EMPLOYEES.\u2019 \u201d Olson, 329 Ill. App. 3d at 231. It also provided that Olson was included as an additional insured \u201cbut only with respect to liability arising out of [the subcontractor\u2019s] ongoing operations performed for [Olson].\u201d Olson, 329 Ill. App. 3d at 231. The court in Kingsport reasoned that, unlike the language of the National policy, which specifically denied coverage for liability resulting from the general contractor\u2019s own negligence, or the negligence of its employees, the State Auto policy had no such exclusion. Kingsport, 364 Ill. App. 3d at 958.\nThe Kingsport court concluded that State Auto had a duty to defend Kingsport. In so holding, the court accepted Kingsport\u2019s contention that the \u201carising out of\u2019 language used in the State Auto policy mandated the application of a \u201cbut for\u201d analysis, and held that the allegations in the injured employee\u2019s complaint established that but for his work for Anderson and Anderson\u2019s presence on the construction site, he would not have been injured. Kingsport, 364 Ill. App. 3d at 954. The court rejected State Auto\u2019s attempt to distinguish cases applying a \u201cbut for\u201d analysis on the basis that those cases involved allegations under the Structural Work Act, finding the cases cited \u201cdid not rely on any of the Act\u2019s provisions in their analysis, and their reasoning is equally applicable to this case.\u201d Kingsport, 364 Ill. App. 3d at 955.\nIn the case at bar, Medolan\u2019s complaint named Habitat and others as defendants and alleged the defendants owned or were in charge of the construction site, that Medolan was employed by Central Building and was on the premises in furtherance of his work, that the defendants were present during the construction and participated in coordinating the work done, and that the defendants erected a concrete wall to be used in the construction. Medolan alleged that his duties required that he work on the wall and that, while he was working on the wall, a section of the concrete wall fell onto the scaffold on which he was working and that, as a proximate and direct result of the defendants\u2019 acts or omissions, he was injured.\nThe State Auto policy at issue in this case, like the policy at issue in Kingsport, provides that Habitat is \u201conly an additional insured with respect to liability arising out of *** \u2018Your [Central Building\u2019s] work\u2019 for that additional insured [Habitat] for or by you.\u201d This court must construe the State Auto policy at issue here \u201cwith due regard to the risk undertaken, the subject matter that is insured and the purposes of the entire contract,\u201d and will give the unambiguous terms of the policy their plain, ordinary and popular meaning. Outboard Marine Corp., 154 Ill. 2d at 108. Unlike the language of the policy at issue in McHugh, which excluded coverage for injuries arising out of the acts or omissions of the general contractor, and the policy at issue in Olson, which prohibited coverage for liability resulting from the general contractor\u2019s own negligence, or the negligence of its employees, the State Auto policy at issue in this case only requires that liability \u201caris[e] out of\u2019 Central Building\u2019s work for Habitat and contains no similar exclusionary clause.\nIn other words, the policies at issue in McHugh and Olson essentially limited coverage to liability arising from the work of its named insured, the subcontractor, but expressly excluded coverage for the general contractor\u2019s own negligence. Here, State Auto failed to include any such language in its policy. When the allegations of Medolan\u2019s complaint, which establish Medolan was injured in furtherance of his work for Central Building, are liberally construed, and are compared to the relevant provisions of the State Auto policy, it is clear that Medolan\u2019s alleged injuries at least potentially arose out of Central Building\u2019s work. Consequently, the allegations in the Medolan complaint, when compared to the language of the policy, give rise to a duty on the part of State Auto to defend Habitat. Kingsport, 364 Ill. App. 3d at 954.\nB. Professional Exclusion Provision\nState Auto sets forth the alternative argument that the policy\u2019s professional services exclusion bars coverage to Habitat. This contention is properly before this court as we may affirm a trial court\u2019s grant of summary judgment on any basis appearing in the record. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983).\nAs noted above, the policy excludes coverage for additional insureds for certain injuries \u201carising out of an architect\u2019s, engineer\u2019s, or surveyor\u2019s rendering of or failure to render any professional services including: (a) The preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, design or specifications; and (b) Supervisory, inspection, or engineering services.\u201d\nState Auto points out that the Medolan complaint alleges Habitat was negligent for failing to make reasonable inspection of the premises, improperly operating, managing, maintaining, and controlling the premises, and failing to supervise the work being done on the premises. According to State Auto, because these assertions amount to allegations that Habitat failed to perform proper supervisory and inspection services, Habitat is not covered.\nState Auto\u2019s contention fails. Habitat is a general contractor. It is the responsibility of a general contractor \u201cto control the project schedule and insure that the structure complies with the project specifications.\u201d McHugh, 344 Ill. App. 3d at 963. Habitat is not an architect, engineer, or surveyor, and Medolan\u2019s complaint does not allege otherwise. The plain language in insurance polices is to be applied as written, and the parties should be bound to the agreement they made. State Street Bank & Trust Co. v. INA Insurance Co., 207 Ill. App. 3d 961, 966, 567 N.E.2d 42 (1991). Here, the plain language of the professional services exclusion, which by its terms applies to an architect\u2019s, engineer\u2019s, or surveyor\u2019s rendering of or failure to render any professional services, has no application.\nIII. Primary or Excess Coverage\nWe have concluded that, as a matter of law, the allegations in the Medolan complaint, when compared to the language of the State Auto policy, give rise to State Auto\u2019s duty to defend Habitat in the underlying action, and the trial court erred in granting summary judgment in favor of State Auto. State Auto contends that even if we conclude that the trial court improperly granted summary judgment in its favor, Habitat is not entitled to summary judgment in this case because the State Auto policy applies in excess to Habitat\u2019s own general liability policy. State Auto also argues its duty to defend Habitat is distinguishable from its duty to indemnify Habitat.\nTo support its contention that the policy applies only on an excess basis, State Auto points to the policy\u2019s \u201cother insurance\u201d provision, which states:\n\u201cAny coverage provided hereunder shall be excess over any other valid and collectible insurance available to the additional insured whether primary, excess, contingent, or on any other basis unless a contract specifically requires that this insurance be noncontributory and or primary or you [Central Building] request that it apply on a non-contributory and or primary basis.\u201d\nState Auto argues that because the agreement between Habitat and Central Building did not require Central Building to provide Habitat with coverage as an additional insured on a noncontributory or primary basis, and because Central Building has never requested that any coverage afforded to Habitat as an additional insured apply on a noncontributory or primary basis, any primary coverage available to Habitat for the Medolan action must be exhausted before the State Auto policy can be triggered.\nHabitat responds that the State Auto policy is \u201cprimary and non-contributory\u2019 \u2019 because Habitat \u201ctarget tendered\u201d its defense to State Auto in accordance with John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570, 727 N.E.2d 211 (2000). John Burns discusses the \u201ctargeted tender rule,\u201d which is also referred to as the \u201cselective tender rule.\u201d This rule allows an insured covered by multiple concurrent policies the right to select which insurer will defend and indemnify it regarding a specific claim. John Burns, 189 Ill. 2d at 574; see also Institute of London Underwriters v. Hartford Fire Insurance Co., 234 Ill. App. 3d 70, 78-79, 599 N.E.2d 1311 (1992). Illinois courts also recognize the theory of horizontal exhaustion, which provides that an insured must exhaust all available primary insurance before any excess insurance may be invoked. See United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598, 653-54, 643 N.E.2d 1226 (1994). In Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 368 Ill. App. 3d 665, 668-70, 856 N.E.2d 452 (2006), appeal allowed, 222 Ill. 2d 609, 862 N.E.2d 234 (2007), a case decided after the instant appeal arose and the review of which is currently pending in the supreme court, the court addressed the relation between the selective tender rule and horizontal exhaustion. The Kajima court held that an insured cannot selectively tender a defense to an excess insurer where primary coverage remains unexhausted. Kajima, 368 111. App. 3d at 671-72. Thus, Kajima seems to reject Habitat\u2019s contention that it could selectively tender its defense to State Auto where the policy\u2019s \u201cother insurance\u201d provision states the policy is to apply in \u201cexcess over any other valid and collectible insurance available to\u201d Habitat.\nIn this case, however, it is unclear whether Habitat has in effect any primary insurance that would cover the Medolan action. Although it can hardly be questioned that Habitat, the general contractor of a major construction project, has in effect its own insurance policy or policies, as we noted above, the record discloses no information about any such policy. We therefore remand the matter to the trial court to determine whether the State Auto policy applies on an excess basis only. See Kingsport, 364 Ill. App. 3d at 962 (remanding to the trial court to determine whether the State Auto policy applied on a primary or excess basis).\nMoreover, as State Auto points out, the duty to defend is distinguishable from the duty to indemnify. See Kingsport, 364 Ill. App. 3d at 951. \u201c[T]he question of whether the insurer has a duty to indemnify the insured for a particular liability is only ripe for consideration if the insured has already incurred liability in the underlying claim against it.\u201d Outboard Marine Corp., 154 Ill. 2d at 127. Thus, we also remand to the trial court for a determination of this issue. See Kingsport, 364 Ill. App. 3d at 962 (remanding to the trial court to resolve the issue of indemnification).\nCONCLUSION\nFor the reasons stated above, the trial court\u2019s grant of summary judgment in favor of State Auto is reversed, and the matter is remanded to the trial court for further proceedings.\nReversed and remanded.\nWOLFSON and R. GORDON, JJ., concur.\nThe insurance policy was originally issued through Meridian Mutual Insurance Company (Meridian). On June 1, 2001, State Auto assumed all of the obligations and liabilities of Meridian. The Meridian/State Auto policy is referred to as \u201cthe policy\u201d or \u201cthe State Auto policy.\u201d\nThe parties point to other materials in the record, including Medolan\u2019s discovery deposition and answers to certain interrogatories, to support their positions. However, as neither party has convinced us to do otherwise, we adhere to the general rule that courts look only to the underlying complaint to determine whether there is a duty to defend. Olson, 329 Ill. App. 3d at 235; see also Outboard Marine Corp., 154 Ill. 2d at 107-08.\nAt oral argument, we addressed the case of State Automobile Mutual Insurance Co. v. Kingsport Development, LLC, 364 Ill. App. 3d 946, 951, 846 N.E.2d 974 (2006), a case that presents virtually identical facts and issues, decided after briefs were submitted in this case. Neither party sought to present Kingsport as additional authority, even though counsel for State Auto was appellate counsel in Kingsport.", "type": "majority", "author": "JUSTICE GARCIA" } ], "attorneys": [ "Tressler, Soderstrom, Maloney & Priess, of Chicago (Michael J. Duffy and Matthew J. Devereux, of counsel), for appellant.", "Dedgwick, Detert, Moran & Arnold, LLP, of Chicago (Renee S. Levitt and Jennifer Quinn Broda, of counsel), for appellee." ], "corrections": "", "head_matter": "STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, as Successor in Interest to and Real Party in Interest in Place of Meridian Mutual Insurance Company, Plaintiff-Appellee, v. HABITAT CONSTRUCTION COMPANY, Defendant-Appellant (Central Building and Preservation et al., Defendants).\nFirst District (1st Division)\nNo. 1\u201405\u20140365\nOpinion filed September 24, 2007.\nTressler, Soderstrom, Maloney & Priess, of Chicago (Michael J. Duffy and Matthew J. Devereux, of counsel), for appellant.\nDedgwick, Detert, Moran & Arnold, LLP, of Chicago (Renee S. Levitt and Jennifer Quinn Broda, of counsel), for appellee." }, "file_name": "0281-01", "first_page_order": 297, "last_page_order": 310 }