{ "id": 4307812, "name": "LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. WOODFIELD MALL, L.L.C., et al., Defendants and Counterplaintiffs-Appellants (Nina Swanson, as Adm'r of the Estate of Mark Swanson, Deceased, Defendant and Counterdefendant)", "name_abbreviation": "Liberty Mutual Fire Insurance v. Woodfield Mall, L.L.C.", "decision_date": "2010-12-17", "docket_number": "No. 1\u201409\u20141905", "first_page": "372", "last_page": "395", "citations": [ { "type": "official", "cite": "407 Ill. App. 3d 372" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "390-91" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "689 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1123", "parenthetical": "citing Rule 341(e)(7), now Rule 341(h)(7), for the proposition that arguments introduced in a reply brief are waived" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801360 ], "year": 1997, "pin_cites": [ { "page": "507", "parenthetical": "citing Rule 341(e)(7), now Rule 341(h)(7), for the proposition that arguments introduced in a reply brief are waived" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0500-01" ] }, { "cite": "570 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "474" }, { "page": "474" }, { "page": "475" } ], "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2529350 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "619" }, { "page": "620" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0617-01" ] }, { "cite": "552 N.E.2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "195 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2493150 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0447-01" ] }, { "cite": "822 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 854", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3217153 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0854-01" ] }, { "cite": "552 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "225-26" } ], "opinion_index": 0 }, { "cite": "50 Ohio App. 3d 1", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6705755 ], "year": 1988, "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/50/0001-01" ] }, { "cite": "475 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1985, "pin_cites": [ { "page": "877" }, { "page": "878" }, { "page": "877" }, { "page": "878" }, { "page": "878" }, { "page": "878" }, { "page": "878-79" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141899 ], "weight": 8, "year": 1985, "pin_cites": [ { "page": "498" }, { "page": "499" }, { "page": "498" }, { "page": "499" }, { "page": "498" }, { "page": "499" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0486-01" ] }, { "cite": "2008-Ohio-6726", "category": "reporters:neutral", "reporter": "Ohio", "weight": 3, "year": 1985, "pin_cites": [ { "page": "1132" }, { "page": "1132" }, { "page": "1132" } ], "opinion_index": 0 }, { "cite": "180 Ohio App. 3d 201", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 3852383 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ohio-app-3d/180/0201-01" ] }, { "cite": "663 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "103" }, { "page": "104" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156815 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "511" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0510-01" ] }, { "cite": "2010-Ohio-198", "category": "reporters:neutral", "reporter": "Ohio", "pin_cites": [ { "page": "\u00b656" } ], "opinion_index": 0 }, { "cite": "187 Ohio App. 3d 32", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 3867934 ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/187/0032-01" ] }, { "cite": "785 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "121", "parenthetical": "appellant cannot omit factual foundation and expect an appellate court to sift through the record to find support for a determination favorable to appellant's position" } ], "opinion_index": 0 }, { "cite": "337 Ill. App. 3d 24", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894506 ], "year": 2003, "pin_cites": [ { "page": "38", "parenthetical": "appellant cannot omit factual foundation and expect an appellate court to sift through the record to find support for a determination favorable to appellant's position" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/0024-01" ] }, { "cite": "346 F. Supp. 2d 958", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9189410 ], "year": 2004, "pin_cites": [ { "page": "966", "parenthetical": "\"In fact, every Illinois court that has found 'but for' causation in the additional insured context has done so because the injured party was, like the injured party in Maryland Casualty, the named insured's employee\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/346/0958-01" ] }, { "cite": "463 F. Supp. 1208", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4055608 ], "year": 1979, "pin_cites": [ { "page": "1210", "parenthetical": "\" 'Arising out of has been held to mean 'originating from,' 'having its origin in,' 'growing out of,' and 'flowing from' \"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/463/1208-01" ] }, { "cite": "466 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "1094" }, { "page": "1094" }, { "page": "1094" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596668 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "154" }, { "page": "155" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0150-01" ] }, { "cite": "699 N.E.2d 127", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "130-31" }, { "page": "128" }, { "page": "130" } ], "opinion_index": 0 }, { "cite": "121 Ohio App. 3d 147", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 523046 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "151-52" }, { "page": "148" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/121/0147-01" ] }, { "cite": "716 N.E.2d 766", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1998, "pin_cites": [ { "page": "767" }, { "page": "768" }, { "page": "769" }, { "page": "768" }, { "page": "769" }, { "page": "769" } ], "opinion_index": 0 }, { "cite": "128 Ohio App. 3d 733", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 22076 ], "weight": 8, "year": 1998, "pin_cites": [ { "page": "734" }, { "page": "735" }, { "page": "736" }, { "page": "735" }, { "page": "736" }, { "page": "736-37" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/128/0733-01" ] }, { "cite": "926 N.E.2d 833", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2010, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "399 Ill. App. 3d 775", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4299795 ], "year": 2010, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/399/0775-01" ] }, { "cite": "658 N.E.2d 1261", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "1268", "parenthetical": "finding waiver where appellant failed to cite supporting authority" }, { "page": "1268" }, { "page": "1268", "parenthetical": "failure to cite supporting authority results in waiver" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927676 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "729", "parenthetical": "finding waiver where appellant failed to cite supporting authority" }, { "page": "729" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0720-01" ] }, { "cite": "682 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351088 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0621-01" ] }, { "cite": "996 F.2d 928", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10516238 ], "year": 1993, "pin_cites": [ { "page": "931" } ], "opinion_index": 0, "case_paths": [ "/f2d/996/0928-01" ] }, { "cite": "747 N.E.2d 955", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 2001, "pin_cites": [ { "page": "958" }, { "page": "964" }, { "page": "962" }, { "page": "962" }, { "page": "962" }, { "page": "962" }, { "page": "962" }, { "page": "962", "parenthetical": "considering location of decision making" } ], "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 622", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132415 ], "weight": 8, "year": 2001, "pin_cites": [ { "page": "625" }, { "page": "632" }, { "page": "630" }, { "page": "630" }, { "page": "630" }, { "page": "629" }, { "page": "630" }, { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0622-01" ] }, { "cite": "643 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "1287" }, { "page": "1287" }, { "page": "1287", "parenthetical": "same" }, { "page": "1287" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 655", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381900 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "664" }, { "page": "665" }, { "page": "665" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0655-01" ] }, { "cite": "611 N.E.2d 1083", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "1095" }, { "page": "1095" }, { "page": "1095", "parenthetical": "discussing Restatement (Second) of Conflict of Laws, section 193" }, { "page": "1095" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 471", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5110926 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "488-89" }, { "page": "489" }, { "page": "488-89" }, { "page": "488-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0471-01" ] }, { "cite": "743 N.E.2d 629", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 14, "year": 2001, "pin_cites": [ { "page": "640" }, { "page": "640" }, { "page": "634" }, { "page": "640" }, { "page": "642" }, { "page": "642" }, { "page": "642" }, { "page": "639-41" }, { "page": "641-42" }, { "page": "642" }, { "page": "641", "parenthetical": "considering location of policy delivery" }, { "page": "641", "parenthetical": "considering location of premium payments" } ], "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 218", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527705 ], "weight": 14, "year": 2001, "pin_cites": [ { "page": "232" }, { "page": "232" }, { "page": "223" }, { "page": "232" }, { "page": "235" }, { "page": "235" }, { "page": "235-36" }, { "page": "233-35" }, { "page": "234-35" }, { "page": "235" }, { "page": "233" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0218-01" ] }, { "cite": "655 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "page": "845" }, { "page": "843" }, { "page": "845" }, { "page": "845" }, { "page": "845" }, { "page": "845", "parenthetical": "choice-of-law analysis is based on facts having a rational relationship to the insurance contract" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198897 ], "weight": 7, "year": 1995, "pin_cites": [ { "page": "526-27" }, { "page": "523" }, { "page": "527" }, { "page": "527" }, { "page": "527" }, { "page": "526-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0520-01" ] }, { "cite": "620 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "1077" }, { "page": "1077" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1853, "char_count": 59903, "ocr_confidence": 0.779, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.2872798761626643 }, "sha256": "b8ea79f0fad03a64520b54f4bd9347715477fdd2d04a2d80ad03dee9a206ddf7", "simhash": "1:927529988eed8c04", "word_count": 9570 }, "last_updated": "2023-07-14T15:37:05.247121+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. WOODFIELD MALL, L.L.C., et al., Defendants and Counterplaintiffs-Appellants (Nina Swanson, as Adm\u2019r of the Estate of Mark Swanson, Deceased, Defendant and Counterdefendant)." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nNina Swanson, of McHenry, Illinois, filed a wrongful death and survival action against the owners and managers of a large suburban shopping mall near Chicago, alleging their negligence in 2004 killed her husband Mark Swanson. Mark Swanson was a heating and air conditioning equipment technician dispatched to the mall by his employer, Carrier Corporation, to service the air conditioning equipment for one of the mail\u2019s tenants. Mark Swanson left the tenant\u2019s space, went into \u201can interior corridor\u201d of the mall where he accessed the equipment on the roof, and as he was climbing back inside the building, he fell to the concrete floor 10 feet below, allegedly due to an inordinate 28-inch gap between the roof hatch and the top rung of an affixed ladder. Nina Swanson sued the mall, but not its tenant. The mall, however, tendered the complaint to the tenant\u2019s commercial general liability insurer, which determined it had no duty to defend the mall and then prevailed on cross-motions for summary judgment in this declaratory judgment action. On appeal, the mall contends the trial court made multiple errors in its choice-of-law analysis, should have found the injuries arose from the tenant\u2019s \u201cwork\u201d or \u201cpremises\u201d which entitled the mall to additional insured coverage, should have recognized the lease contractually entitled the mall to primary insured coverage, and should have determined the insurer waived policy defenses.\nThe following undisputed facts are relevant to those arguments. The tenant\u2019s commercial general liability insurance policy for the one-year term beginning February 1, 2004, was issued by plaintiff insurer Liberty Mutual Fire Insurance Company, a Massachusetts corporation with a principal place of business in Massachusetts (Liberty Mutual). The named insureds include Luxottica U.S. Holdings Corporation, which is a Delaware corporation, a subsidiary of an Italian company, and the parent corporation of at least 33 United States corporations (Luxottica). Luxottica has a mailing address in Port Washington, New York. Luxottica\u2019s various subsidiaries were also listed on the written policy as named insureds and included the mall\u2019s tenant, LensCrafters, Inc., which was an Ohio corporation headquartered near Cincinnati in Mason, Ohio (LensCrafters). LensCrafters operates an extensive, nationwide chain of hundreds of retail eyeglass stores and in 1986 began leasing retail space from the mall defendants at Wood-field Mall in Schaumburg, Illinois. The insurance policy did not list the addresses of the individual LensCrafters stores; however, under the heading \u201cClassifications and Locations,\u201d the coverage encompassed \u201cAll Operations of the Named Insured.\u201d None of the mall defendants was listed as a named insured in the policy declarations or appeared on the policy\u2019s \u201cNamed Insured Endorsement\u201d page or anywhere else in the contract. The mall defendants, meaning the four defendants named in Swanson\u2019s negligence action, were Woodfield Mall, L.L.C., a foreign corporation which owns the mall in Schaumburg; Woodfield Associates, L.L.C., an Illinois corporation; The Taubman Company, L.L.C., a foreign corporation which manages the mall; and Taub-Co Management, Inc., another foreign corporation.\nA \u201cGeneral Amendatory Endorsement\u201d to the policy stated in relevant part:\n\u201cL. AMENDMENT \u2014 BLANKET ADDITIONAL INSURED\nSECTION II \u2014 WHO IS AN INSURED is amended to include as an insured any person, organization, state or other political subdivision, trustee or estate for whom you have agreed in writing to provide liability insurance. But:\nThe insurance provided by this amendment:\n1. Applies only to \u2018personal injury\u2019 or \u2018property damage\u2019 arising out of (a) \u2018your work\u2019 or (b) premises or other property owned by or rented to you ***.\u201d\nThe policy specified, \u201cthe words \u2018you\u2019 and \u2018your\u2019 refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.\u201d Section 11.01 of LensCrafters\u2019 lease required it to name the owners and managers of Woodfield Mall as additional insureds on its comprehensive liability policy \u201cwith respect to the leased premises and the operations of Tenant and any subtenants of Tenant in, on or about the leased premises\u201d and that \u201cthe coverage evidenced thereby shall be primary and non-contributing with respect to any policies carried by [the owners and managers of the mall], and that any coverage carried by [the owners and managers] shall be excess insurance.\u201d Thus, when the lease and policy are read together, the mall defendants are additional insureds on LensCrafters\u2019 policy, but only for personal injury or property damage arising out of LensCrafters\u2019 premises and operations at Woodfield Mall.\nThe preamble and section 1.01 of the lease defined the \u201cLeased Premises\u201d as \u201cStore Number 330, situated on the upper level of Building \u2018D\u2019, having an irregular shape and consisting of approximately 5,561 square feet.\u201d A letter agreement that was simultaneously executed with the lease described the \u201c \u2018leased premises\u2019 \u201d as \u201cspace *** in the Shopping Center to be known as Woodfield Mall.\u201d (Emphasis added.) The lease was modified in 1996 to extend the rental period for an additional 10 years through November 30, 2006, and the renewal stated the original lease was \u201cfor a retail business to be operated under the trade name \u2018LENSCRAFTERS,\u2019 covering premises identified as Store No. \u2018D-330\u2019, in the regional retail development commonly known as WOODFIELD MALL.\u201d (Emphasis added.) Also relevant is section 1.01 of the original lease, which specified:\n\u201c(b) The exterior walls and the roof of the leased premises and the area beneath said premises are not demised hereunder, and the use thereof, together with the right to locate, both vertically and horizontally, install, maintain, use, repair and replace pipes, utility lines, ducts, conduits, flues, refrigerant lines, drains, sprinkler mains and valves, access panels, wires and structural elements leading through the leased premises serving other parts of the Shopping Center, is hereby reserved unto Landlord. Landlord reserves an easement above Tenant\u2019s finished ceiling to the roof, or to the bottom of the floor deck above the leased premises, for general access purposes and in connection with the exercise of Landlord\u2019s other rights under this Lease.\u201d\nThe preamble and section 7.01 of the lease limited the tenant\u2019s \u201cPermitted Use\u201d and \u201cUse of Premises\u201d to \u201cThe retail sale of eyeglasses, contact lenses, solutions and all optical accessories related to the retail optical business; in addition, the on-premises professional optometric eye examination business and the on-premises manufacturing of prescription eyeglass lenses and contact lenses.\u201d\nThe lease also addressed the operation and maintenance of the shopping center\u2019s common areas. Section 8.02 defined the \u201c \u2018common areas\u2019 \u201d to include \u201cstairs *** not contained within any leased premises\u201d and \u201cservice and fire and exit corridors.\u201d In section 8.01, the landlord \u201cagree[d] to cause to be operated and maintained *** all common areas within the Shopping Center\u201d and specified that the \u201cmanner in which such areas and facilities shall be operated and maintained *** shall be at the sole discretion of Landlord.\u201d In section 10.01, the landlord agreed to \u201ckeep and maintain the roof (including the structural integrity thereof), foundation and exterior surfaces of the exterior walls of the building in which the leased premises are located *** in good order, condition and repair.\u201d\nIn section 10.02, LensCraffcers agreed to \u201ckeep and maintain in first class appearance *** and in good order, condition and repair as determined by Landlord *** the leased premises and every part thereof and any and all appurtenances thereto wherever located but exclusively serving the leased premises, including, but without limitation, *** ventilation, heating and air conditioning and electrical systems (whether or not located in the leased premises but exclusively serving the leased premises), sprinkler systems, walls, floors and ceilings.\u201d Beginning in 2004, LensCrafters entered into a three-year heating, ventilation and air conditioning (HVAC) preventive maintenance and repair service contract with Carrier Corporation which encompassed LensCraffcers\u2019 numerous retail outlets. In accordance with this contract, the LensCrafters store in Woodfield Mall contacted Carrier Corporation when the air conditioning in its lab stopped working and Carrier Corporation sent its employee Mark Swanson to investigate and fix the problem.\nAlso relevant is that in section 11.03 of the lease, LensCrafters agreed to indemnify the mall defendants and \u201csave them harmless (except for loss or damage resulting solely from the negligence of Landlord or breach of this Lease by Landlord) from and against any and all claims.\u201d\nAfter Liberty Mutual was notified of Mark Swanson\u2019s accident and untimely death, it sent a letter to the mall defendants in 2005 stating \u201cwe cannot determine at this time whether there is a potential of coverage [for the mall defendants] under the policy\u201d and \u201cwill be continuing our investigation into this claim under a reservation of rights.\u201d The letter summarized what occurred at the shopping center and set out the portions of the general amendatory endorsement (quoted above) which indicated when additional insured status would occur and that the scope of coverage was expressly limited to \u201c \u2018personal injury\u2019 or \u2018property damage\u2019 arising out of (a) \u2018[the named insured\u2019s] work or (b) premises or other property owned by or rented to [the named insured].\u2019 \u201d The insurance company\u2019s letter continued:\n\u201cThe lease between the Mall and LensCrafters requires LensCrafters to provide additional insured status to the Mall. As a result, the Mall is an insured but only with respect to liability arising out of the premises leased to LensCrafters. We cannot determine from the information we currently have whether the Mali\u2019s liability arose from the premises leased to LensCrafters. We will be conducting farther investigation into that issue.\u201d\nThe letter concluded with reservation-of-rights language: \u201cWhile we have attempted to address all of the coverage issues related to this claim, Liberty Mutual reserves all rights under applicable law and the policy. This letter should not be construed as a waiver or estoppel of any possible coverage defenses afforded by the policy or applicable law.\u201d A nearly identical letter sent on November 13, 2006, will be set out below in conjunction with one of the mail\u2019s arguments for reversal. In that letter, Liberty Mutual agreed to provide a defense. However, on March 26, 2007, it filed this action seeking a declaration of no duty to defend or indemnify and alleging in part that Ohio law would govern any dispute about the parties\u2019 rights and obligations. The mall defendants counterclaimed.\nDiscovery in this coverage action included deposing Sebastian DiBella, an account executive employed by the insurance brokerage and consulting firm BWD Group, L.L.C. (BWD), located in Jericho, New York. DiBella indicated BWD had been handling Luxottica\u2019s insurance coverage for about 15 years and that he helped the company evaluate its needs and negotiate the coverage terms and cost of the insurance policy at issue. DiBella\u2019s primary contacts at Luxottica were Jim Bettner, who was their director of risk management, and Bettner\u2019s boss, Greg Muntel. DiBella made recommendations to Muntel and Bettner and those gentlemen made the decisions. DiBella acknowledged that Luxottica\u2019s address in Port Washington, New York, appeared on the declarations page of the insurance policy, but explained that Liberty Mutual sent the proposed policy directly to BWD, BWD reviewed it, and then DiBella personally delivered it to Muntel and Bettner during a meeting at the Luxottica office in Mason, Ohio. After the meeting, DiBella negotiated additional terms with Liberty Mutual\u2019s employees Terry Schell, who was an account executive in Cincinnati, Ohio, and/or Joanne Venuti, who was a national accounts underwriter in Boston, and then Liberty Mutual bound the coverage.\nDiBella\u2019s deposition transcript was one of the documents considered by the trial court in the summary judgment proceedings. As we stated above, Liberty Mutual prevailed on the cross-motions for summary judgment and this appeal by the mall followed.\nSummary judgment is properly granted where the pleadings, deposition transcripts, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2\u20141005(c)) (West 2006). Summary judgment is a drastic means of disposing of litigation, but is an appropriate measure in cases meeting these criteria. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390-91, 620 N.E.2d 1073, 1077 (1993). Appeals from the entry of summary judgment are addressed de novo by this court. Crum & Forster, 156 Ill. 2d at 390, 620 N.E.2d at 1077.\n1 The mail\u2019s first specific argument is that the trial court erred in determining Ohio rather than Illinois or New York had the \u201cmost significant contacts\u201d with the insurance policy and would control the interpretation of the parties\u2019 rights and obligations under the contract. Often insurance policies contain express choice-of-law provisions, but when a policy is silent, its provisions are governed by the substantive law of (1) the location of the subject matter, (2) the domicile of the insured or of the insurer, (3) the place of the last act to give rise to an enforceable contract, (4) the place of performance, or (5) any other place bearing a rational relationship to the contract. Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520, 526-27, 655 N.E.2d 842, 845 (1995). These factors do not have equal significance and are to be weighed according to the issue involved. Emerson Electric Co. v. Aetna Casualty & Surety Co., 319 Ill. App. 3d 218, 232, 743 N.E.2d 629, 640 (2001). At least some of the factors in a choice-of-law analysis \u201cwill point in different directions in all but the simplest case.\u201d Restatement (Second) of Conflict of Laws \u00a76, Comment c, at 12 (1971). \u201cHence any rule of choice of law, like any other common law rule, represents an accommodation of conflicting values.\u201d Restatement (Second) of Conflict of Laws \u00a76, Comment c, at 12 (1971). A choice-of-law analysis should consider the contracting parties\u2019 justified expectations, yield certain, predictable, and uniform results, and avoid inconsistent interpretations of the same insurance contract. Emerson Electric, 319 Ill. App. 3d at 232, 743 N.E.2d at 640.\nThe mall argues the location of the contract\u2019s subject matter is the insured risk in Illinois and this fact should be given extra emphasis. The mall relies on Diamond State Insurance Co. v. Chester-Jensen Co., 243 Ill. App. 3d 471, 488-89, 611 N.E.2d 1083, 1095 (1993), and Society of Mount Carmel v. National Ben Franklin Insurance Co. of Illinois, 268 Ill. App. 3d 655, 664, 643 N.E.2d 1280, 1287 (1994), in which the courts construed the state where liability arose to be the location of the insured risk and worthy of greater weight than any other single contact under consideration. The courts noted parenthetically that under this approach, a policy which insured risks located in \u201cseveral\u201d or \u201cdifferent\u201d states would be treated as separate policies each insuring a separate risk. Diamond State, 243 Ill. App. 3d at 489, 611 N.E.2d at 1095; Society of Mount Carmel, 268 Ill. App. 3d at 665, 643 N.E.2d at 1287. We consider these cases distinguishable, in that the risks insured there appear to be limited to a few tangible products or to a few specific locations that were itemized in the policy, while the insured risk in this case is the operations and premises of a national chain store with retail locations too numerous to be listed in the insurance policy. Moreover, the courts\u2019 parenthetical remarks in Diamond State and Society of Mount Carmel were based on a passage from the Restatement (Second) of Conflict of Laws, which indicates:\n\u201cA special problem is presented by multiple risk policies which insure against risks located in several states. A single policy may, for example, insure dwelling houses located in states X, Y and Z. These states may require that any fire insurance policy on buildings situated within their territory shall be in a special statutory form. If so, the single policy will usually incorporate the special statutory forms of the several states involved. Presumably, the courts would be inclined to treat such a case, at least with respect to most issues, as if it involved three policies, each insuring an individual risk.\u201d (Emphasis added.) Restatement (Second) of Conflict of Laws \u00a7193, Comment f at 613-14 (1971).\nDiamond State, 243 Ill. App. 3d at 488-89, 611 N.E.2d at 1095 (discussing Restatement (Second) of Conflict of Laws, section 193); Society of Mount Carmel, 268 Ill. App. 3d at 665, 643 N.E.2d at 1287 (same). We do not consider the commentators\u2019 reasoning or admitted mere presumption about a policy insuring as few as three single-family homes to be relevant to the current commercial general liability policy insuring all the locations of a major, nationwide retail chain. Accordingly, we decline to follow Diamond State, 243 Ill. App. 3d at 488-89, 611 N.E.2d at 1095, or Society of Mount Carmel, 268 Ill. App. 3d at 665, 643 N.E.2d at 1287, and give undue weight to the location of the insured risk in Illinois.\nInstead, the more pertinent analysis appears in Lapham-Hickey Steel, a subsequent supreme court case concerning a policy broadly covering \u201call risks of physical loss or damage\u201d at a steel company\u2019s facilities in six different states. Lapham-Hickey Steel, 166 Ill. 2d at 523, 655 N.E.2d at 843. Although its Minnesota facility was listed in the policy and was the site of the environmental contamination at issue, the court determined the location of the insured risk in the Midwestern state was entitled to little weight because the broad policy covered risks in multiple states and the contract expressed a choice of law in only two, limited instances. Lapham-Hickey Steel, 166 Ill. 2d at 527, 655 N.E.2d at 845. On the other side of the scale were the facts that the policy was delivered in Illinois by an Illinois brokerage to an Illinois corporation licensed to do business in Illinois. Lapham-Hickey Steel, 166 Ill. 2d at 527, 655 N.E.2d at 845. The court concluded that reasonable application of the choice-of-law factors and obtaining a \u201cconsistent interpretation of the policy\u201d dictated that Illinois law would govern. Lapham-Hickey Steel, 166 Ill. 2d at 527, 655 N.E.2d at 845.\nAfter the supreme court decided Lapham-Hickey Steel, Illinois courts have deemphasized the location of the insured loss when the policy\u2019s risks are spread nationwide. Lapham-Hickey Steel, 166 Ill. 2d 520, 655 N.E.2d 842. For instance, in Emerson Electric, the parties disagreed over whether Missouri or other states\u2019 laws would control a coverage dispute about liability for environmental damage in 22 different states, where the insured was based in Ferguson, Missouri, a suburb of St. Louis, and had 40 divisions and subsidiaries doing business around the country. Emerson Electric Co., 319 Ill. App. 3d at 223, 743 N.E.2d at 634. None of the pollution occurred in the insured\u2019s home state of Missouri. Emerson Electric, 319 Ill. App. 3d 218, 743 N.E.2d 629. The court reasoned: \u201cThough the location of the insured risk is often seen as the most important factor in this sort of analysis, that is not the case where, as here, the risk locations are scattered through several states.\u201d Emerson Electric, 319 Ill. App. 3d at 232, 743 N.E.2d at 640. Instead, the court looked for the location which appeared to be most likely contemplated by the parties as the source of law and would also serve the interests of predictability, uniformity of result, and ease in determining and applying the law. Emerson Electric, 319 Ill. App. .3d at 235, 743 N.E.2d at 642. The court gave special emphasis to the Missouri corporation\u2019s principle place of business because it had an \u201cactive, dominant, and dynamic role in the procurement of all of these policies.\u201d Emerson Electric, 319 Ill. App. 3d at 235, 743 N.E.2d at 642.\n\u201cAccording to the record, the procurement of insurance for both Emerson and its subsidiaries was largely coordinated out of Emerson\u2019s corporate headquarters in St. Louis. Michael Zimmer worked at Emerson\u2019s headquarters from 1964 to 1986, starting as corporate insurance manager in Emerson\u2019s treasury department, and later becoming head of Emerson\u2019s newly formed insurance risk management department. *** His responsibilities included negotiating for the placement of insurance coverage, which required the gathering of information relating to Emerson\u2019s various businesses which were to be covered. That information was provided by Emerson\u2019s various subsidiaries and divisions. Zimmer was the \u2018point person\u2019 for gathering this data, which was then reviewed with Emerson\u2019s [Chicago] insurance broker. As companies were acquired by Emerson, Zimmer generally took on responsibility for their insurance, recommending \u2018a program that would have typically involved their [the companies\u2019] participation in Emerson\u2019s corporate insurance risk program.\u2019 ***\nSince Emerson\u2019s corporate treasury department and later its risk management department, both located at Emerson\u2019s headquarters in St. Louis, figured so prominently in the procurement of insurance not only for Emerson but also for its subsidiaries, the location of Emerson\u2019s headquarters in Missouri clearly merits significant weight in this analysis.\u201d Emerson Electric, 319 Ill. App. 3d at 235-36, 743 N.E.2d at 642.\nThe court also considered that the policy was personally delivered in Missouri, the insurance contracts were kept in a safe in Missouri (the domicile of the insured), the policy payments took place in Missouri (the last act to give rise to the contract), and the claims would be paid in Missouri (the place of performance). Emerson Electric, 319 Ill. App. 3d at 233-35, 743 N.E.2d at 639-41. Missouri was the location that tied the contracting parties together and was most likely contemplated by them at the time of contracting to be controlling. Emerson Electric, 319 Ill. App. 3d at 234-35, 743 N.E.2d at 641-42. We acknowledge that Emerson Electric involved environmental damage sites in multiple states, in contrast to Swanson\u2019s action concerning one accident in Illinois. Emerson Electric, 319 Ill. App. 3d 218, 743 N.E.2d 629. Nevertheless, the Emerson Electric and LensCrafters policies are similarly broad general liability contracts which cover numerous locations, and the contracting parties could justifiably anticipate at the time of contracting that the site of a specific loss would be given little weight.\nLapham-Hickey Steel, not Diamond State or Society of Mount Carmel, was followed in Westchester, a case involving two broad commercial umbrella policies, one insuring a national brewing company and 50 other companies and the other insuring the national brewing company and over 100 other companies. Westchester Fire Insurance Co. v. G. Heileman Brewing Co., 321 Ill. App. 3d 622, 625, 747 N.E.2d 955, 958 (2001). After pointing out that the policies provided general liability insurance for the brewing company everywhere it did business and \u201cwere apparently designed to provide coverage without regard to location of risks,\u201d the Westchester court criticized the trial judge for relying on the \u201cprincipal location of [the insured] risk\u201d analysis employed in Society of Mount Carmel. Westchester, 321 Ill. App. 3d at 632, 747 N.E.2d at 964; Society of Mount Carmel, 268 Ill. App. 3d 655, 643 N.E.2d 1280. The state where the insured loss was located was not pertinent when the policies \u201ccovered risks nationwide and did not specifically state the location of the risk.\u201d Westchester, 321 Ill. App. 3d at 630, 747 N.E.2d at 962. Instead, like Emerson Electric, the court focused on the insured\u2019s principal place of business or \u201c \u2018nerve center\u2019 \u201d (Westchester, 321 Ill. App. 3d at 630, 747 N.E.2d at 962, quoting Krueger v. Cartwright, 996 F.2d 928, 931 (7th Cir. 1993)), which it defined as \u201cthe location of business decision making\u201d and the \u201clocation of the offices responsible for the main activities of the entity.\u201d Westchester, 321 Ill. App. 3d at 630, 747 N.E.2d at 962, citing Illinois Life & Health Insurance Guaranty Ass\u2019n v. Boozell, 289 Ill. App. 3d 621, 682 N.E.2d 291 (1997). The court also took into consideration the domicile of the insured, where the policy was delivered to the brewing company (the last act giving rise to the contract), where the insurer\u2019s representative handling problems and complaints was located, and where the insurance broker was located. Westchester, 321 Ill. App. 3d at 629, 747 N.E.2d at 962.\nLike these latter cases, the policy currently at issue covered risks which could arise anywhere in the country and did not specifically state the location of the insured risks. Because LensCrafters\u2019 locations all over North America were covered, the \u201clocation of the risk\u201d analysis employed in Diamond State and Society of Mount Carmel would not be appropriate. Diamond State, 243 Ill. App. 3d 471, 611 N.E.2d 1083; Society of Mount Carmel, 268 Ill. App. 3d 655, 643 N.E.2d 1280. On the basis of this authority, we have also determined that the place where the underlying action was filed \u201ccannot be equated with the location of the [national] subject matter or insured risk\u201d and is entitled to \u201clittle or no significance to our analysis.\u201d Westchester, 321 Ill. App. 3d at 630, 747 N.E.2d at 962. LensCrafters is the entity we have focused on because the coverage claim is based on the mail\u2019s written lease with LensCrafters; the mall has no relationship with the other named insureds, which include the parent company Luxottica and sister corporations in various parts of the United States. LensCrafters is a named insured and the availability of coverage is not dependent upon its corporate affiliations. The record substantiates that LensCrafters is domiciled in Mason, Ohio, and its insurance procurement occurred entirely in that state. Muntel was the \u201c \u2018point person\u2019 \u201d (Emerson Electric, 319 Ill. App. 3d at 235, 743 N.E.2d at 642) who coordinated all the insurance needs of Luxottica\u2019s numerous subsidiaries out of his Ohio office. In addition, insurance broker DiBella traveled from his office in New York to hand deliver the policy to Muntel in Ohio. Emerson Electric, 319 Ill. App. 3d at 233, 743 N.E.2d at 641 (considering location of policy delivery). The Ohio facility was also the headquarters and \u201cnerve center\u201d for all of the LensCrafters stores. Westchester, 321 Ill. App. 3d at 630, 747 N.E.2d at 962 (considering location of decision making). The record does not disclose how the insurance premiums were paid, but presumably they emanated from the Ohio headquarters, and even if they did not, the mall has never contended it needed additional discovery time to unearth this detail. Emerson Electric, 319 Ill. App. 3d at 233, 743 N.E.2d at 641 (considering location of premium payments). Ohio has more significant contacts with this insurance contract than New York or Illinois.\nThe mall argues in the alternative that if we do not give extra emphasis to the purported principal location of risk in Illinois, we should focus on the declarations page of the policy indicating the . contract was mailed to Luxottica\u2019s address in New York. The mall argues this shows the policy was delivered to the insured in New York and, therefore, that state\u2019s laws control interpretation of the policy provisions, rather than Ohio\u2019s. The record, however, does not show that the policy was delivered to the insured in New York. Insurance broker DiBella stated without contradiction that he did not know why Luxottica\u2019s New York address appeared on the policy declarations page and that he had personally delivered the contract to Muntel in Ohio. Thus, the record shows Ohio, not New York, was the place of delivery to the insured.\nContradicting its contention that the policy was mailed to Luxottica in New York, the mall next cites DiBella\u2019s deposition transcript for the proposition that the policy was sent to DiBella in New York. The mall characterizes this as the \u201clast act that gave rise to the valid insurance contract.\u201d (If this truly was the last act in the contracting process, the subsequent delivery to the insured would be inconsequential and should not have been argued above.) The mall also contends the payment of premiums occurred in New York. It concludes these circumstances \u201ccreat[ed] another significant contact in favor of applying New York law.\u201d We do not reach the same conclusion. Although some courts have considered the location of an intermediary insurance broker, the mall has failed to discuss any precedent to that effect and DiBella testified that his role in the procurement process was to make recommendations only to his clients in Ohio, Muntel and Bettner, who made the contracting decisions. Therefore, we fail to see the relevance of the location of this particular broker in this choice-of-law analysis. And, again, the record does not definitely indicate where premiums were paid, but the location of the insured\u2019s headquarters in Ohio and Muntel\u2019s and Bettner\u2019s presence there suggests the payments emanated in Ohio.\nAnother unpersuasive argument is premised on the facts that LensCrafters is domiciled in Ohio, Luxottica is domiciled in New York, Liberty Mutual is domiciled in Massachusetts, and Liberty Mutual is licensed to do insurance business in \u201cnumerous other states.\u201d The mall argues that given all the options, we should defer to the New York domicile of the parent corporation, Luxottica. As we explained above, details about the parent corporation are red herrings, and our consideration of the contracting process led us to conclude Ohio was the linchpin state. Furthermore, Liberty Mutual\u2019s domicile in Massachusetts would be pertinent if this insurance company played an active role in the contracting process, but it did not; and the fact that the insurer is licensed to do business/enter into contracts in various jurisdictions has no apparent relevance to any choice-of-law analysis. See Lapham-Hickey Steel, 166 Ill. 2d at 526-27, 655 N.E.2d at 845 (choice-of-law analysis is based on facts having a rational relationship to the insurance contract).\nThe mail\u2019s final argument regarding the choice-of-law issue is that since Swanson\u2019s claim, if successful, would be paid in Illinois, then contract performance would occur in Illinois. In our opinion, even if insurance proceeds were paid in Illinois, this one factor would not outweigh the combination of the other factors discussed above.\nFor all these reasons, we conclude that Ohio has the most significant contacts with the contract and the substantive law of that jurisdiction controls the interpretation of the policy provisions.\n\u20222 The mall\u2019s second main argument on appeal is based on the policy language limiting its additional insured coverage to injuries that are \u201carising out of (a) \u2018your work\u2019 or (b) premises or other property owned by or rented to you,\u201d where the policy defines \u201cyour\u201d and \u201cyou\u201d to mean the named insured, LensCrafters. Although the mall is asking us to interpret a policy provision, it fails to cite Ohio authority and has therefore waived our consideration of this contention. Village of Riverwoods v. BG Ltd. Partnership, 276 Ill. App. 3d 720, 729, 658 N.E.2d 1261, 1268 (1995) (finding waiver where appellant failed to cite supporting authority). In any event, the mail\u2019s argument fails under the facts, Ohio authority, and the Illinois authority it relies upon.\nWhen construing an insurance contract, an Illinois court will give the parties\u2019 words their plain, ordinary, and generally accepted meaning. Continental Casualty Co. v. Donald T. Bertucci, Ltd., 399 Ill. App. 3d 775, 776, 926 N.E.2d 833, 836 (2010).\nDavis indicates that under Ohio law, additional insured coverage extends only to vicarious liability for negligence of the named insured (Davis v. LTV Steel Co., 128 Ohio App. 3d 733, 716 N.E.2d 766 (1998)), and thus, Liberty Mutual has no duty to defend the mall from Swanson\u2019s action alleging the mail\u2019s own negligent act or omission caused Mark Swanson\u2019s injuries. In Davis, LTV a steel company, hired an industrial cleaning company, Shafer, to clean tar sumps at an LTV facility in Warren, Ohio. Davis, 128 Ohio App. 3d at 734, 716 N.E.2d at 767. Their contract required Shafer to purchase comprehensive general liability insurance and to name LTV as an additional insured. Davis, 128 Ohio App. 3d at 735, 716 N.E.2d at 768. An endorsement to the policy provided additional insured \u201c \u2018only with respect to liability arising out of your operations or premises owned by or rented to you\u2019 \u201d (emphasis omitted) where \u201c \u2018your\u2019 \u201d and \u201c \u2018you\u2019 \u201d referred to the named insured. Davis, 128 Ohio App. 3d at 736, 716 N.E.2d at 769. Two of Shafer\u2019s employees were injured on the job when they fell into an open sump, allegedly because a protective grating had been removed, and they sued LTV for negligence in maintaining its property. Davis, 128 Ohio App. 3d at 735, 716 N.E.2d at 768. LTV sought coverage under the additional insured language, but lost a declaratory judgment action and an appeal. Davis, 128 Ohio App. 3d 733, 716 N.E.2d 766. LTV like the mall defendants here, sought an expansive interpretation of the phrase \u201c \u2018arising out of \u201d in the additional insured endorsement. Davis, 128 Ohio App. 3d at 736, 716 N.E.2d at 769. The appellate decision indicates:\n\u201cLTV argues that the language of the additional-insured endorsement should be construed broadly so that LTV was protected from all liability arising out of or connected to the operations of Shafer, regardless of whether the liability was attributable to the negligence of LTV Shafer, a third party, or some combination thereof. We disagree with this interpretation of the additional-insured endorsement.\nThe plain language of the endorsement extended coverage to LTV only with respect to liability arising out of Shafer\u2019s operations or premises owned by or rented to Shafer. The phrase \u2018arising out of your operations\u2019 in the endorsement was intended to protect LTV from any liability for the negligence of Shafer\u2019s employees who would be performing the industrial cleaning at the LTV plant. See, e.g., [Buckeye Union Insurance Co. v. Zavarella Brothers Construction Co., 121 Ohio App. 3d 147, 151-52, 699 N.E.2d 127, 130-31 (1997)]. In other words, the purpose of the additional-insured endorsement was to protect the additional insured (i.e., LTV) from being vicariously liable for the tortious acts of the named insured (i.e., Shafer).\u201d Davis, 128 Ohio App. 3d at 736-37, 716 N.E.2d at 769.\nDavis was based in part on Buckeye Union Insurance, another Ohio case involving a contractual obligation to obtain additional insured coverage. Buckeye Union Insurance, 121 Ohio App. 3d at 148, 699 N.E.2d at 128. When an employee of the named insured was injured on the jobsite and sued the additional insured, the additional insured sought a defense under the policy and later indemnification for the expenses it incurred defending the suit. Buckeye Union Insurance, 121 Ohio App. 3d 147, 699 N.E.2d 127. An endorsement to the policy\u2019s additional insured clause is similar to the one at issue here and read:\n\u201c \u2018WHO IS [AN] INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule *** but only with respect to liability arising out of \u201cyour work\u201d for that insured or by you. \u2019 (Emphasis added.) In the context of this endorsement, the word \u2018you\u2019 refers to [the named insured].\nWe find, as a matter of law, that the additional-insured clause of the policy could only cover [the additional insured] for liability arising from [the named insured\u2019s] work for [the additional insured]. If we were to read the additional-insured clause as permitting [the additional insured] to be insured against its own negligence, it would run counter to the public policy [of Ohio]. *** We have no doubt that the additional-insured language of the policy permits no recovery [here]. The employee filed causes of action against [the additional insured] seeking damages for [the additional insured\u2019s] negligence. Certainly, the employee\u2019s causes of action *** did not relate to any negligence [by the named insured].\u201d Buckeye Union Insurance, 121 Ohio App. 3d at 151, 699 N.E.2d at 130.\nThis reasoning makes clear that the purpose of additional insured coverage is to protect the additional insured from claims of vicarious liability, that is, liability based entirely on the relationship between the two insureds, as opposed to any active negligence on the part of the additional insured. Ohio law does not support the mail\u2019s argument for reversal.\nThe mall\u2019s argument also fails under Illinois law. Citing Maryland Casualty, the mall contends the policy language \u201c \u2018arising out of \u201d requires a \u201cbut for\u201d causation test and \u201cbut for\u201d the LensCrafters lease and its service call for HVAC maintenance, Mark Swanson would not have been at Woodfield Mall on the day he was fatally injured. Maryland Casualty Co. v. Chicago & North Western Transportation Co., 126 Ill. App. 3d 150, 154, 466 N.E.2d 1091, 1094 (1984), quoting Western Casualty & Surety Co. v. Branon, 463 F. Supp. 1208, 1210 (E.D. Ill. 1979) (\u201c \u2018Arising out of has been held to mean \u2018originating from,\u2019 \u2018having its origin in,\u2019 \u2018growing out of,\u2019 and \u2018flowing from\u2019 \u201d).\nThe mall argues Mark Swanson\u2019s injuries arose out of LensCrafters\u2019 \u201cwork,\u201d where the policy defines \u201cyour work\u201d as \u201cWork or operations performed by you or on your behalf.\u201d (Emphasis added.) The argument is a distortion of Maryland Casualty\u2019s \u201cbut for\u201d analysis. Maryland Casualty, 126 Ill. App. 3d at 155, 466 N.E.2d at 1094. According to Swanson\u2019s complaint, Mark Swanson\u2019s injuries occurred when he was performing HVAC maintenance and repair on behalf of his employer, Carrier Corporation. The record tendered on appeal includes (a) the contract obligating Carrier Corporation to \u201cprovide Heating/Ventilation/Air Conditioning Preventative Maintenance and Repair Services\u201d to LensCrafters, (b) business records indicating Carrier Corporation inspected the store\u2019s HVAC equipment and recommended replacement rather than repair, and (c) the shopping center lease describing LensCrafters\u2019 activities as \u201c[t]he retail sale of eyeglasses, contact lenses, solutions and all optical accessories related to the retail optical business; in addition, the on-premises professional optometic eye examination business and the on-premise manufacturing of prescription eyeglass lenses and contact lenses.\u201d The mail\u2019s alleged liability does not stem from the sale of eyewear or contact lenses, eye examinations, or lens manufacturing, by or on behalf of LensCrafters. Mark Swanson was performing Carrier Corporation\u2019s HVAC \u201cwork\u201d rather than LensCrafters\u2019 eyewear-related \u201cwork\u201d when his unfortunate accident occurred.\nReturning to the policy language, the mall also argues Mark Swanson\u2019s injuries arose out of LensCrafters\u2019 retail \u201cpremises,\u201d but the mall misconstrues Maryland Casualty as a premises liability case when, in reality, liability was imposed there because the named insured employed the injured party, and here, the named insured LensCrafters did not employ the injured party. Maryland Casualty Co., 126 Ill. App. 3d at 155, 466 N.E.2d at 1094; see also Electric Insurance Co. v. National Union Fire Insurance Co. of Pittsburgh, 346 F. Supp. 2d 958, 966 (N.D. Ill 2004) (\u201cIn fact, every Illinois court that has found \u2018but for\u2019 causation in the additional insured context has done so because the injured party was, like the injured party in Maryland Casualty, the named insured\u2019s employee\u201d). Furthermore, Mark Swanson\u2019s accident did not arise out of covered \u201cpremises.\u201d According to section 11.01 of the lease which the mall drafted, the insurance policy procured by the tenant had to cover \u201cthe leased premises and operations of Tenant and any subtenants of Tenant in, on, or about the leased premises.\u201d The preamble and section 1.01 of the lease define the \u201cLeased Premises\u201d as \u201cStore Number 330, situated on the upper level of Building \u2018D.\u2019 \u201d The letter agreement that was simultaneously executed with the lease stated the \u201c \u2018leased premises\u2019 \u201d was \u201cspace *** in the Shopping Mall to be known as WOODFIELD MALL\u201d (emphasis added), and the lease extension drafted by the mall and executed in 1996 reiterated that the demised premises were \u201cfor a retail business to be operated under the trade name \u2018LENSCRAFT-ERS,\u2019 covering premises identified as Store No. \u2018D-330,\u2019 in the regional retail development commonly known as WOODFIELD MALL\u201d (emphasis added). It is undisputed that Mark Swanson\u2019s investigation started in the retail space leased to LensCrafters, but Swanson sped-fled that Mark Swanson was in \u201can interior corridor to the roof of the mall,\u201d which was a common area of the shopping center not demised to LensCrafters, and no longer \u201cin, on, or about the leased premises\u201d attempting to repair the air conditioning equipment that cooled the store\u2019s eyewear lab when he slipped from an affixed ladder that was controlled and maintained by the mall. The mail\u2019s own lease indicates it was not contractually entitled to coverage under the LensCrafters\u2019 policy for the accident that occurred while Mark Swanson was away from the leased premises conducting HVAC maintenance and repairs.\nBecause Mark Swanson\u2019s injuries did not arise out of LensCrafters\u2019 work as an eyewear retailer or arise out of LensCrafters\u2019 leased premises on the third floor of the mall, the policy did not encompass the unfortunate turn of events. Thus, even under the Illinois law the mall contends is controlling, we do not find the policy language requires Liberty Mutual to defend the mall from Swanson\u2019s allegations.\n\u20223 The mall\u2019s third main argument is that the trial court took an overly narrow view of Swanson\u2019s allegations that the mall\u2019s negligence caused Mark Swanson\u2019s injuries and death and should have determined Swanson might, possibly, amend her pleading in the future to claim LensCrafters was primarily liable due to its own negligent acts or omissions and that the mall was secondarily liable. The mall contends this scenario was not \u201cpled directly or artfully\u201d but, nonetheless, it might be pled and, under Ohio law, allegations of this nature would trigger the insurer\u2019s duty to defend LensCrafters as a primary, named insured and then the mall as an additional insured. We find this argument has been waived due to the mail\u2019s failure to cite and analyze any supporting facts in the record. McGovern v. Kaneshiro, 337 Ill. App. 3d 24, 38, 785 N.E.2d 108, 121 (2003) (appellant cannot omit factual foundation and expect an appellate court to sift through the record to find support for a determination favorable to appellant\u2019s position). This section of the mall\u2019s brief lacks any record citation whatsoever. Furthermore, it is undisputed that the mall defendants are the only parties named in Swanson\u2019s pleading and all the allegations concern the mail\u2019s own, independent tortious conduct regarding a common area of the shopping center solely within the mail\u2019s control. More specifically, Swanson\u2019s common allegations state in relevant part:\n\u201c3. On 8-24-04, a fixed ladder/stairwell existed at Woodfield Mall near the LensCrafters Store that led from an interior corridor to the roof of the mall.\n4. Defendant [mall] did at all times own and control the ladder/ stairway.\n5. The ladder/stairway provided access to the roof for contractors and other authorized users.\n6. Access from the ladder/stairway to the roof was through a hatch located on the roof.\n7. The ladder/stairway contained handrails on both sides and flat steps with a top step approximately 28 inches below the top of the roof hatch.\n8. Access to the ladder/stairway could only be accomplished by stepping over the side of the raised roof hatch and 28 inches down to the first rung/step.\n9. Mark Swanson was at all times employed by Carrier Corporation as a heating and air conditioning technician.\n10. Defendant [mall] or its agents did at all times contract with Carrier Corporation to provide repair and maintenance services for the heating and air conditioning equipment at the mall.\n11. On 8-24-04, Mark Swanson was dispatched to Woodfield Mall by Carrier Corporation to provide heating/air conditioning services.\n12. At the above time and place, Mark Swanson was attempting to descend the subject ladder/stairway from the roof when he fell to the concrete floor of the corrider.\n13. Defendant [mall] had a duty at all times material herein to provide a ladder/stairway that was safe and which provided safe access to and from the roof.\n14. Defendant [mall] was negligent [before] and at the time of the occurrence in one or more of the following respects.\na. Failed to provide a ladder/stairway in which the vertical spacing of the rungs/steps was uniformly 12 inches between the rung/step centers throughout the length of the climb.\nb. Provided and maintained a ladder/stairway in which the top rung/step was approximately 28 inches below the top of the roof hatch.\nc. Failed to provide a ladder/stairway that could be safely mounted and descended from the roof.\nd. Failed to provide a ladder/stairway that clearly communicated how it should be used by people going to and from the roof.\ne. Installed a raised roof hatch at the top of the ladder/ stairway that required a user to step over the side of the hatch and 28 inches down to the first rung/step of the ladder/ stairway.\nf. Failed to provide a safe means of descent from the roof.\ng. Failed to install a new ladder/stairway or roof hatch.\nh. Failed to repair/modify the ladder/stairway or roof hatch.\ni. Failed to warn of the hazards associated with the use of the ladder/stairway.\n15. As a direct and proximate result of the foregoing wrongful acts, Mark Swanson fell from the ladder/stairway on 8-24-04 and died on 9-3-04.\u201d\nNone of the allegations suggest in any way that the mall could be held vicariously liable for tortious acts or omissions of its tenant LensCrafters. None of the allegations create doubt or uncertainty as to whether a theory of recovery within the policy\u2019s coverage has been pled. Furthermore, the mall states the trial court had authority to consider \u201cmatters outside the pleadings,\u201d but it does not explain what \u201cmatters outside the pleadings\u201d could have and should have been considered. It appears the mall\u2019s entire argument regarding the potential for secondary liability is speculation. Accordingly, if this argument had not been waived by failure to provide record citation and adequate analysis, we would have rejected it on the merits.\nNext, the mall recasts its secondary liability argument under Illinois law. We remain unpersuaded because none of the allegations suggest the potential for liability on the part of LensCrafters.\n\u20224 This brings us to the mail\u2019s fourth main argument, which is that its lease with LensCrafters entitles it to be a primary insured on LensCrafters\u2019 policy. This argument is based on section 11.01 of the lease which requires LensCrafters to procure and keep in effect a minimum amount of comprehensive general liability insurance policy. The mall omits the additional language in section 11.01 indicating this insurance coverage shall be \u201cwith respect to the leased premises and the operations of Tenant and any subtenants of Tenants in, on or about the leased premises.\u201d It chooses to quote a clause indicating \u201cthe coverage evidenced thereby shall be primary and noncontributing with respect to any policies carried by the Landlord and that any coverage carried by the Landlord shall be excess insurance.\u201d The mall also disregards the general amendatory endorsement discussed-above indicating the additional insured coverage is limited to \u201c \u2018personal injury\u2019 or \u2018property damage\u2019 arising out of (a) \u2018your work\u2019 or (b) premises or other property owned by or rented to you.\u201d Based on its selective editing, the mall concludes it is contractually entitled to primary coverage for the loss alleged in Swanson\u2019s action, meaning that the insurer is obliged to provide a defense and any other policies affording coverage to the mall are only excess policies.\nThe mall supports its contention with a single Illinois case, rather than the Ohio authority that governs interpretation of the policy provisions, which is reason for us to conclude the argument is waived. Village of Riverwoods, 276 Ill. App. 3d at 729, 658 N.E.2d at 1268. Nonetheless, we chose to address it. We cannot limit our consideration to a sentence clause which appears to favor the mall. Under Ohio law, we consider the insurance contract as whole and give effect to the apparent intent of the parties. Currier v. Penn-Ohio Logistics, 187 Ohio App. 3d 32, 2010\u2014Ohio\u2014198, at \u00b656. The mail\u2019s argument fails when section 11.01 of the lease is read in conjunction with the general amendatory endorsement discussed above, which limits the mall\u2019s coverage as an additional insured to liability arising out of LensCrafters\u2019 \u201cwork\u201d and \u201coperations or premises\u201d at the shopping mall. Furthermore, the argument fails under the Illinois law the mall relies upon. The mall contends Bieda is analogous, but in that case, a tenant was contractually required to obtain additional insured coverage for its landlord with respect to \u201cthe demised premises\u201d and the underlying plaintiff was injured while making a delivery to the demised premises. Bieda v. Carson International, 278 Ill. App. 3d 510, 511, 663 N.E.2d 102, 103 (1996). The issue addressed was whether the coverage was \u201cprimary\u201d instead of contingent upon the exhaustion of some other policy. Bieda, 278 Ill. App. 3d at 512, 663 N.E.2d at 104. We do not reach the issue of whether there is primary or contingent coverage because a plain reading of the unedited lease indicates there is no coverage for the landlord/mall with regard to this particular loss.\n\u20225 The mail\u2019s final argument is based on the insurer\u2019s letter dated November 13, 2006, in which the insurer referred to the mall as an \u201cadditional insured\u201d under the policy and agreed to provide a defense under a reservation of rights. The mall argues these statements resulted in waiver of any policy defenses. The letter consisted of three sections, the first stating:\n\u201cWe have received your tender of the defense of the Woodfield Mall in [the legal action captioned \u2018Estate of Swanson v. Woodfield Mall LLC\u2019]. Based on our review of the complaint, the contract between LensCrafters and the Mall and the Commercial Generality Liability policy issued to LensCrafters, we have determined that the allegations of the complaint create a potential for coverage for the Mall under the policy. As a result, we will provide a defense, subject to the position outlined in this letter.\u201d\nThe second section was a summary of the Swanson complaint and the relevant portions of the insurance policy. The third section was the insurer\u2019s conclusion:\n\u201cThe lease between the Mall and LensCrafters requires LensCrafters to provide additional insured status to the Mall. As a result, the Mall is an insured but only with respect to liability arising out of the premises leased to LensCrafters. We will only indemnify you for damages awarded for \u2018bodily injury\u2019 for liability arising out of the premises leased to LensCrafters.\nWhile we have attempted to address all of the coverage issues related to this claim, Liberty Mutual reserves all rights under applicable law and the policy. This letter should not be construed as a waiver or estoppel of any possible coverage defenses afforded by the policy or applicable law.\u201d\nUnder Ohio and Illinois law, waiver of an insurer\u2019s rights occurs unilaterally and does not require any prejudice to or detrimental reliance by the insured. State Farm Mutual Automobile Insurance Co. v. Ingle, 180 Ohio App. 3d 201, 2008\u2014Ohio\u20146726, at 1132; Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 498, 475 N.E.2d 872, 877 (1985). Waiver consists of the insurer\u2019s intentional relinquishment of a known right. Ingle, 180 Ohio App. 3d 201, 2008\u2014Ohio\u20146726, at 1132; Brochu, 105 Ill. 2d at 499, 475 N.E.2d at 878. Waiver may be express or implied and arises from an affirmative act, word, conduct or knowledge. Ingle, 180 Ohio App. 3d 201, 2008\u2014Ohio\u20146726, at 1132; Brochu, 105 Ill. 2d at 498, 475 N.E.2d at 877. Waiver cannot, however, expand coverage beyond the express terms of the insurance policy. Hartory v. State Automobile Mutual Insurance Co., 50 Ohio App. 3d 1, 3, 552 N.E.2d 223, 225-26 (1988).\nThe mall has waived its final contention on appeal by failing to cite Ohio authority. Village of Riverwoods, 276 Ill. App. 3d at 729, 658 N.E.2d at 1268 (failure to cite supporting authority results in waiver). Since it would belabor the point to address the argument under both Ohio and Illinois law, we choose to limit our analysis to Illinois authority which is factually similar. Brochu illustrates that an insurer may expressly reserve the right to deny coverage at a later date. Brochu, 105 Ill. 2d 486, 475 N.E.2d 872. In that case, an insurance claims manager accepted defense of a suit and stated that with respect to coverage there \u201c \u2018doesn\u2019t appear to be any further question concerning coverage at this time.\u2019 \u201d (Emphasis in original.) Brochu, 105 Ill. 2d at 499, 475 N.E.2d at 878. Despite this cautious phrasing, the client would subsequently argue the claims manager had relinquished the right to deny coverage. Brochu, 105 Ill. 2d at 498, 475 N.E.2d at 878. Two weeks after the first letter was sent, the insurer\u2019s attorney sent a letter indicating the insurer was defending the suit without any admission of its liability under the policy; that it was reserving its right to rely on coverage exclusions known as \u201c(n)\u201d and \u201c(o),\u201d which concerned inadequacies in the insured\u2019s own work or product; and that the insured had the right to take over the management of the defense. Brochu, 105 Ill. 2d at 499, 475 N.E.2d at 878. Even though there was a lag in the insurer\u2019s specific invocation of policy exclusions \u201c(n)\u201d and \u201c(o),\u201d the court determined it had not intentionally relinquished its right to rely on those exclusions. Brochu, 105 Ill. 2d at 499, 475 N.E.2d at 878-79.\nWe fail to see how the current insurer\u2019s letter could be construed as waiver. This is a clearer case than Brochu, because here, rather than two letters separated by two weeks, there was one letter in which the insurer spelled out the limits of its undertaking to defend the shopping mall and made clear it was not relinquishing its right to deny coverage at a later date. The insurer\u2019s acknowledgment that the shopping mall qualified as an \u201cadditional insured\u201d under its tenant\u2019s policy was not an indication there was insurance coverage for the Swanson action. The insurer went on to state there was only \u201ca potential of coverage for the Mall under the policy\u201d and that it would defend the Swanson action \u201csubject to the position outlined in this letter.\u201d It then specifically invoked the policy\u2019s limitation on coverage to \u201cpremises or other property owned by or rented to [LensCrafters]\u201d and the policy\u2019s limitation on indemnification to \u201cdamages awarded for \u2018bodily injury\u2019 for liability arising out of the premises leased to LensCrafters.\u201d Furthermore, the insurer concluded by expressly \u201creserving] all rights under applicable law and the policy\u201d and cautioning the mall that it should not construe the letter as \u201cwaiver or estoppel of any possible coverage defenses afforded by the policy or applicable law.\u201d Four months later, the insurer filed the instant action seeking a judicial declaration of noncoverage due to the \u201cpremises\u201d language quoted in the letter. Under these facts, we do not see how the insurer intentionally relinquished its right to deny coverage based on the \u201cpremises\u201d policy language.\nThe circumstances differ from those described in cases cited by the mall, including Mathis, in which the insurer denied coverage on certain grounds (misrepresentation and arson) but then later tried to avoid coverage on other grounds (the timing of the insured\u2019s proof-of-loss form). Mathis v. Lumbermen\u2019s Mutual Casualty Insurance Co., 354 Ill. App. 3d 854, 822 N.E.2d 543 (2004). We fail to see the relevance of Heneghan, in which the insurer acquiesced to the insured\u2019s decision to delay making a claim until a trial determined who was driving the car that collided with the insured\u2019s car and subsequently tried to deny the delayed claim as untimely. Heneghan v. State Security Insurance Co., 195 Ill. App. 3d 447, 552 N.E.2d 406 (1990). We also reject the mall\u2019s reliance on Gray, in which the insurer announced that its investigation was complete and showed there was coverage, but, nine months later, informed the claimant that the investigation and coverage determination were still underway, and shortly after that, concluded the investigation and denied coverage. State Farm Mutual Automobile Insurance Co. v. Gray, 211 Ill. App. 3d 617, 619, 570 N.E.2d 472, 474 (1991). The insurer could not explain why the first letter had been sent. Gray, 211 Ill. App. 3d at 620, 570 N.E.2d at 474. In the court\u2019s opinion, the first letter would have led the claimants to believe coverage was not in dispute and that the insurer intended to address questions of damages and liability as called for by the insurance contract. Gray, 211 Ill. App. 3d at 621, 570 N.E.2d at 475. In contrast to Mathis, Heneghan, and Gray, the present insurer consistently asserted the \u201cpremises\u201d language and its right to coverage defenses.\nIn its reply brief, the mall cites Gray, 211 Ill. App. 3d 617, 570 N.E.2d 472, for the additional proposition that the insurer waived its policy defenses by not filing this declaratory judgment suit sooner. In a motion taken with the case, the insurer argues we should strike this argument and others because they are improperly raised for the first time in the reply. 210 Ill. 2d R. 341(h)(7) (the appellant\u2019s opening brief must contain an argument section and \u201c[p]oints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing\u201d); Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507, 689 N.E.2d 1119, 1123 (1997) (citing Rule 341(e)(7), now Rule 341(h)(7), for the proposition that arguments introduced in a reply brief are waived). Any issue raised for the first time in the reply brief has been disregarded. All other aspects of the motion to strike are denied.\nHaving considered and rejected all the mail\u2019s arguments, we affirm the judgment of the trial court in favor of the insurer.\nAffirmed; motion taken with case denied.\nCAHILL and R. GORDON, JJ., concur.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Jeremiah E Connolly and Hilary J. O\u2019Connor, both of Bollinger, Ruberry & Garvey, and Kevin J. Caplis and Jennifer Medenwald, both of Querrey & Harrow, Ltd., both of Chicago, for appellants.", "Joseph E Eostel and David S. Osborne, both of Lindsay, Rappaport & Fostel, LLC, of Chicago, for appellee." ], "corrections": "", "head_matter": "LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. WOODFIELD MALL, L.L.C., et al., Defendants and Counterplaintiffs-Appellants (Nina Swanson, as Adm\u2019r of the Estate of Mark Swanson, Deceased, Defendant and Counterdefendant).\nFirst District (6th Division)\nNo. 1\u201409\u20141905\nOpinion filed December 17, 2010.\nJeremiah E Connolly and Hilary J. O\u2019Connor, both of Bollinger, Ruberry & Garvey, and Kevin J. Caplis and Jennifer Medenwald, both of Querrey & Harrow, Ltd., both of Chicago, for appellants.\nJoseph E Eostel and David S. Osborne, both of Lindsay, Rappaport & Fostel, LLC, of Chicago, for appellee." }, "file_name": "0372-01", "first_page_order": 388, "last_page_order": 411 }