{ "id": 4290234, "name": "STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. SPRINGFIELD FIRE AND CASUALTY COMPANY et al., Defendants-Appellees", "name_abbreviation": "State Auto Property & Casualty Insurance v. Springfield Fire & Casualty Co.", "decision_date": "2009-09-30", "docket_number": "No. 4-08-0977", "first_page": "414", "last_page": "421", "citations": [ { "type": "official", "cite": "394 Ill. App. 3d 414" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "412 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "515", "parenthetical": "\"It is well settled that the preceden-tial scope of a decision is limited to the facts before the court\"" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474756 ], "year": 1980, "pin_cites": [ { "page": "261", "parenthetical": "\"It is well settled that the preceden-tial scope of a decision is limited to the facts before the court\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0250-01" ] }, { "cite": "821 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "280" }, { "page": "273", "parenthetical": "resolving the contribution-subrogation issue where both insurance policies had been invoked" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448779 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "323" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0307-01" ] }, { "cite": "830 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 12, "year": 2005, "pin_cites": [ { "page": "12" }, { "page": "13" }, { "page": "13" }, { "page": "13" }, { "page": "13" }, { "page": "13" }, { "page": "13" }, { "page": "13-14" }, { "page": "19" }, { "page": "19" }, { "page": "19" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135780 ], "weight": 11, "year": 2005, "pin_cites": [ { "page": "893" }, { "page": "894" }, { "page": "894" }, { "page": "894" }, { "page": "894" }, { "page": "895" }, { "page": "895" }, { "page": "902" }, { "page": "902" }, { "page": "902" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0891-01" ] }, { "cite": "893 N.E.2d 717", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "721" }, { "page": "721-22" } ], "opinion_index": 0 }, { "cite": "384 Ill. App. 3d 674", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279807 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "677" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0674-01" ] }, { "cite": "727 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 17, "year": 2000, "pin_cites": [ { "page": "214" }, { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "213-14" }, { "page": "216" }, { "page": "216" }, { "page": "216" }, { "page": "217" }, { "page": "216-17", "parenthetical": "concluding that the named insured - rather than the insurance company - controls which of its insurance policies will be triggered" }, { "page": "217", "parenthetical": "\"An 'other[-]insurance' provision does not in itself overcome the right of an insured to tender defense of an action to one insurer alone\"" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224800 ], "weight": 17, "year": 2000, "pin_cites": [ { "page": "573-74" }, { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "572" }, { "page": "576" }, { "page": "576" }, { "page": "576" }, { "page": "578" }, { "page": "577-78" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0570-01" ] } ], "analysis": { "cardinality": 664, "char_count": 16890, "ocr_confidence": 0.767, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14422365937164677 }, "sha256": "c531652d291322497be744e227c6aee0f8a2d44fc1694bd3ed7d36817883a79c", "simhash": "1:1ab6310c27c4a49c", "word_count": 2706 }, "last_updated": "2023-07-14T19:46:22.265343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. SPRINGFIELD FIRE AND CASUALTY COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn August 2007, plaintiff, State Auto Property & Casualty Insurance Company (State Auto), brought this action for declaratory judgment against defendant Springfield Fire & Casualty Company (Springfield Fire). These insurers do not question whether both companies\u2019 insured, Swearingen Brothers, Inc. (Swearingen Brothers), is liable for the injury to one of its contractors and the death of another. Instead, State Auto has asked this court to determine whether Swearingen Brothers had the right to \u201cdeselect\u201d Springfield Fire from coverage and \u201ctarget\u201d State Auto as the sole defender and indemnifier of the contractors\u2019 claims. For the reasons that follow, we conclude that (1) Swearingen Brothers could properly \u201cdeselect\u201d its Springfield Fire coverage and (2) State Auto\u2019s claims about the need to be \u201ctargeted\u201d are groundless.\nI. BACKGROUND\nIn August 2003, Swearingen Brothers, a construction company, obtained an insurance policy from State Auto that provided general commercial liability coverage. This insurance policy included the following \u201cother-insurance\u201d provision:\n\u201cIf other valid or collectable insurance is available to the insured for a loss [State Auto] cover[s] *** [State Auto\u2019s] obligations are limited as follows:\na. Primary Insurance\nThis insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, [State Auto] will share all that other insurance by the method described in c. below.\nb. Excess Insurance\nThis insurance is excess over:\n(1) Any other insurance, whether primary, excess, contingent or on any other basis:\n(a) That is [f]ire, [e]xtended [c]overage, [b]uilder\u2019s [r]isk, [installation [r]isk or similar coverage to \u2018your work[.]\u2019 \u201d\nIn March 2004, Swearingen Brothers obtained additional insurance coverage from Springfield Fire specifically for Swearingen Brothers\u2019 \u201cMontgomery Building Project.\u201d\nIn April 2004, Matthew Swearingen was injured and Wayne Boruff was killed while attempting to demolish a building in furtherance of the Montgomery project. Thereafter, Swearingen\u2019s and Boruff s estates sued Swearingen Brothers to recover for their respective injuries and death.\nIn May 2008, State Auto filed a second amended complaint for declaratory judgment, seeking, in part, to have its coverage, if implicated at all, deemed excess to that of the general coverage provided by Springfield Fire, citing the aforementioned \u201cother-insurance\u201d provision. In June 2008, Springfield Fire responded by filing a motion to dismiss that portion of State Auto\u2019s motion for declaratory judgment pursuant to section 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619 (West 2006)). Specifically, Springfield Fire asserted that in November 2007 and February 2008, Swearingen Brothers had, by letter, deselected Springfield Fire from providing any insurance coverage or indemnification relating to the injuries and death at the Montgomery project. Following a September 2008 hearing, the trial court granted Springfield Fire\u2019s motion to dismiss. Specifically, the court, citing John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570, 727 N.E.2d 211 (2000), found that Swearingen Brothers had properly deselected Springfield Fire\u2019s insurance coverage in favor of State Auto\u2019s insurance coverage.\nThis appeal followed.\nII. ANALYSIS\nState Auto argues that (1) the trial court erred by finding that Swearingen Brothers properly deselected Springfield Fire\u2019s insurance coverage in favor of State Auto\u2019s insurance coverage and, alternatively, (2) even if Swearingen Brothers properly deselected the Springfield Fire coverage, it failed to make a \u201ctargeted tender\u201d to State Auto, thereby allowing State Auto to seek equitable contribution from Springfield Fire. We address State Auto\u2019s contentions in turn.\nA. State Auto\u2019s Claim That the Trial Court Erred by Finding That Swearingen Brothers Had Deselected Springfield Fire\u2019s Coverage\nState Auto contends that the trial court erred by finding that Swearingen Brothers properly deselected Springfield Fire\u2019s insurance coverage in favor of State Auto\u2019s coverage. Specifically, State Auto asserts that the line of Illinois cases holding that a party may deselect insurance coverage from one insurance provider in favor of another is distinguishable because those cases involved situations in which an insured was covered as the named insured on one policy and as an additional insured on the other. Thus, State Auto claims, the right to deselect coverage arises only out of the bargained-for exchange of prearranged contractual risk shifting \u2014 that is, the right to deselect must be agreed upon by contract, rather than \u201cthrough the beneficence of a court[-]sponsored doctrine.\u201d Essentially, State Auto posits that the \u201cother-insurance\u201d provision in its policy governs because other insurance was \u201cavailable.\u201d We disagree.\n1. The Standard of Review\nWe review de novo the trial court\u2019s decision to dismiss a claim pursuant to section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 619 (West 2006)). Kolacki v. Verink, 384 Ill. App. 3d 674, 677, 893 N.E.2d 717, 721 (2008). \u201cIn conducting that review, the reviewing court must construe all of the pleadings and supporting documents in the light most favorable to the nonmoving party.\u201d Kolacki, 384 Ill. App. 3d at 677, 893 N.E.2d at 721-22.\n2. The Supreme Court\u2019s Decision in John Burns\nIn John Burns, the supreme court addressed the same question that is now before this court \u2014 namely, \u201cwhether an insurer to whom litigation is tendered and whose policy contains an \u2018other[-]insurance\u2019 clause *** may seek contribution from another insurer whose policy is in existence but whose coverage the insured has refused to invoke.\u201d John Burns, 189 Ill. 2d at 573-74, 727 N.E.2d at 214. In John Burns, Burns Construction Company (Burns) entered into a subcontract with Sal Barba Asphalt Paving, Inc. (Barba), to pave a parking lot. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. The parties\u2019 agreement required Barba to maintain insurance in Burns\u2019 name. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. Thereafter, Burns was added to Barba\u2019s Indiana Insurance Company policy. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. However, Burns was also insured through its own policy with Royal Insurance Company. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. Thus, Burns was covered by, and named in, two insurance policies: its own, issued by Royal, and Barba\u2019s, issued by Indiana. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213.\nShortly after Barba completed paving the parking lot, a pedestrian slipped and fell in the lot. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. The pedestrian subsequently sued Burns. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. In response, Burns deselected its policy with Royal and filed a claim with Indiana to defend and indemnify the claim. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. Indiana responded that Barba\u2019s policy \u2014 in which Burns was a named insured\u2014 contemplated, under its \u201cother-insurance\u201d provision, that more than one insurer might face exposure, and therefore its policy provided a formula for sharing the costs of defending and indemnifying such claims. John Burns, 189 Ill. 2d at 572, 727 N.E.2d at 213-14.\nThe supreme court agreed with Burns and Royal, noting that the \u201cother-insurance\u201d clause in Indiana\u2019s policy \u2014 which we note is strikingly similar to the \u201cother-insurance\u201d provision in this case \u2014 did not limit Burns\u2019 right to select which insurer would be required to indemnify its claims. John Burns, 189 Ill. 2d at 576, 727 N.E.2d at 216. Indiana attempted to distinguish the line of case law that allowed an insured to designate which insurance company would defend the insured\u2019s claim by noting that in those cases the policy issued did not contain an \u201cother-insurance\u201d clause. John Burns, 189 Ill. 2d at 576, 727 N.E.2d at 216. The supreme court disagreed, noting that the purpose of an \u201cother-insurance\u201d clause is not to trigger coverage; rather, it is to provide a method of apportioning coverage that is otherwise triggered. John Burns, 189 Ill. 2d at 576, 727 N.E.2d at 216. In other words, the issue of liability under the \u201cother-insurance\u201d clause did not arise because the other policy was never invoked.\nThe supreme court concluded that (1) the Royal insurance policy was not \u201cavailable,\u201d in the language of Indiana\u2019s policy, because Burns had declined to invoke that coverage and (2) Indiana\u2019s \u201cother-insurance\u201d provision could not \u201citself overcome the right of an insured to tender defense of an action to one insurer alone.\u201d John Burns, 189 Ill. 2d at 578, 727 N.E.2d at 217.\nNearly five years later, this court reached a different result on similar facts due to a significant nuance in Pekin Insurance Co. v. Fidelity & Guaranty Insurance Co., 357 Ill. App. 3d 891, 830 N.E.2d 10 (2005).\n3. This Court\u2019s Decision in Pekin Insurance\nIn Pekin Insurance, 357 Ill. App. 3d at 893, 830 N.E.2d at 12, a van owned by Sanfilippo and Sons, Inc. (van owner), and insured by Fidelity and Guaranty Insurance Company, broke down. The van\u2019s driver called Brown\u2019s Vehicle Inspection (tow-truck owner) to have the van towed. Pekin Insurance, 357 Ill. App. 3d at 894, 830 N.E.2d at 13. The tow-truck owner sent a tow truck, which was insured by Pekin Insurance Company. Pekin Insurance, 357 Ill. App. 3d at 894, 830 N.E.2d at 13. While the van was being towed, it broke free, crossed into oncoming traffic, and injured two people. Pekin Insurance, 357 Ill. App. 3d at 894, 830 N.E.2d at 13. The injured parties sued, in pertinent part, the tow-truck owner and the van owner. Pekin Insurance, 357 Ill. App. 3d at 894, 830 N.E.2d at 13.\nThe tow-truck owner was the named insured on the Pekin insurance policy, and the van owner was the named insured on the Fidelity insurance policy (which was also an omnibus policy \u2014 that is, the policy covered individuals who used the van with the named insured\u2019s permission). Pekin Insurance, 357 III. App. 3d at 894-95, 830 N.E.2d at 13. Nevertheless, once the lawsuit commenced, the tow-truck owner attempted to deselect its Pekin coverage and target the van owner\u2019s Fidelity coverage. Pekin Insurance, 357 Ill. App. 3d at 895, 830 N.E.2d at 13. The trial court rejected the tow-truck owner\u2019s attempt to deselect its coverage and later granted Fidelity judgment on the pleadings. Pekin Insurance, 357 Ill. App. 3d at 895, 830 N.E.2d at 13-14.\nOn appeal, this court concluded that the tow-truck owner could not deselect its Pekin policy and target the van owner\u2019s Fidelity policy. Pekin Insurance, 357 Ill. App. 3d at 902, 830 N.E.2d at 19. In so concluding, this court distinguished the supreme court\u2019s decision in John Burns, noting that in that case the insurance policies each named the party seeking to deselect coverage. Pekin Insurance, 357 Ill. App. 3d at 902, 830 N.E.2d at 19. We also emphasized that because the tow-truck owner was not named in the Fidelity policy, but merely covered under the omnibus provision of that policy, it would be improper to allow the tow-truck owner to deselect its coverage in favor of the Fidelity policy, a policy that it had not previously negotiated to be covered by. Pekin Insurance, 357 Ill. App. 3d at 902, 830 N.E.2d at 19.\n4. The Significance of Being a Named Insured\nWhether an individual is a named insured is significant because the rationale for allowing an insured to deselect coverage is that it vests the named insured with the right to choose between two policies for which that named insured has (1) paid the premium or, (2) as in John Burns, negotiated for the contracted right to be named on another\u2019s policy. See John Burns, 189 Ill. 2d at 577-78, 727 N.E.2d at 216-17 (concluding that the named insured \u2014 rather than the insurance company \u2014 controls which of its insurance policies will be triggered). In contrast, when a party has only contracted with, and paid the premium for, one policy and attempts to deselect its policy in favor of a policy on which it has not paid the premium or negotiated to be the named insured, this rationale is inapplicable.\nWhile initially it may appear that deselecting additional insurance coverage would be unwise in the face of a personal injury or wrongful-death lawsuit, a named insured may wish to do so for any number of reasons, including, but not limited to, the following: (1) fear of the risk of being dropped from coverage, (2) endeavoring to limit increases in its premiums, and (3) ensuring stability in coverage during a pending lawsuit.\n5. Deselection in This Case\nAs in John Burns, in this case, Swearingen Brothers was the named insured on both the State Auto and Springfield Fire policies. Indeed, it paid the premiums on both policies. Therefore, Swearingen Brothers had the right to deselect its coverage under the Springfield Fire policy in favor of its coverage under the State Auto policy.\nMoreover, State Auto\u2019s \u201cother-insurance\u201d provision does not supercede Swearingen Brothers\u2019 right to deselect coverage because Swearingen Brothers never triggered its Springfield Fire policy. By not invoking its coverage under the Springfield Fire policy, Swearingen Brothers left itself with coverage through only its State Auto policy. Thus, no other insurance was \u201cavailable,\u201d as that term is used in the State Auto policy. Accordingly, State Auto may not take advantage of its \u201cother-insurance\u201d provision. See John Burns, 189 Ill. 2d at 578, 727 N.E.2d at 217 (\u201cAn \u2018other[-]insurance\u2019 provision does not in itself overcome the right of an insured to tender defense of an action to one insurer alone\u201d).\nB. State Auto\u2019s Claim That Swearingen Brothers Did Not Properly Target State Auto as the Exclusive Defender and Indemnifier\nAlternatively, State Auto argues that even if the trial court did not err by finding that Swearingen Brothers deselected its Springfield Fire policy, the court erred by finding that the act of deselection automatically resulted in a targeted tender. Specifically, State Auto contends that Swearingen Brothers was required to send State Auto a \u201ctargeted tender\u201d or \u201cselective tender\u201d letter, notifying State Auto that it was looking solely to State Auto to defend and indemnify the claims in this case. To that end, State Auto asserts that \u201cthere is nothing in the [r]ecord to indicate that Swearingen Brothers is looking solely to State Auto for exclusive coverage.\u201d We disagree.\nIn support of its argument, State Auto relies solely on the supreme court\u2019s decision in Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 821 N.E.2d 269 (2004). Although Home Insurance Co. stands for the proposition that a distinction exists between equitable contribution and equitable subrogation (Home Insurance Co., 213 Ill. 2d at 323, 821 N.E.2d at 280), such a distinction is not significant in this case because, as previously discussed, Swearingen Brothers never invoked its Springfield Fire policy. See People v. Flatt, 82 Ill. 2d 250, 261, 412 N.E.2d 509, 515 (1980) (\u201cIt is well settled that the preceden-tial scope of a decision is limited to the facts before the court\u201d). Because Swearingen Brothers never triggered the Springfield Fire policy, the issue of whether equitable contribution or equitable subrogation was appropriate is inconsequential. See Home Insurance Co., 213 Ill. 2d at 310, 821 N.E.2d at 273 (resolving the contribution-subrogation issue where both insurance policies had been invoked).\nHere, State Auto\u2019s claim that Swearingen Brothers had to specifically inform State Auto that it was looking solely to State Auto to defend and indemnify the claims is not relevant because Swearingen Brothers was required only to file its claim for coverage with State Auto, which it did. State Auto\u2019s brief does not explain how receiving a letter with certain \u201cmagic words\u201d would have better notified it that Swearingen Brothers intended to have State Auto defend and indemnify the claims than filing its initial claim did. Our view is that State Auto\u2019s brief did not explain how such a \u201ctargeted tender\u201d letter would have better asserted Swearingen Brothers\u2019 intent because such a letter would not have.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER and APPLETON, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Robert Marc Chemers (argued) and Heather E. Plunkett, both of Pretzel & Stouffer Chtrd., of Chicago, and Bianca T. Green, of Thomas, Mamer & Haughey, LLP, of Champaign, for appellant.", "John R. Keith (argued), of Keith Law Offices, of Springfield, for appellee Springfield Fire & Casualty Company." ], "corrections": "", "head_matter": "STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. SPRINGFIELD FIRE AND CASUALTY COMPANY et al., Defendants-Appellees.\nFourth District\nNo. 4\u201408\u20140977\nOpinion filed September 30, 2009.\nRobert Marc Chemers (argued) and Heather E. Plunkett, both of Pretzel & Stouffer Chtrd., of Chicago, and Bianca T. Green, of Thomas, Mamer & Haughey, LLP, of Champaign, for appellant.\nJohn R. Keith (argued), of Keith Law Offices, of Springfield, for appellee Springfield Fire & Casualty Company." }, "file_name": "0414-01", "first_page_order": 432, "last_page_order": 439 }