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Hartford Accident Co. v. Case Foundation Co.

FEBRUARY 6, 1973.

HARTFORD ACCIDENT & INDEMNITY COMPANY, PLAINTIFF-APPELLEE,

v.

CASE FOUNDATION COMPANY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

This appeal is from a declaratory judgment entered in a suit by Hartford Accident & Indemnity Company, an insurer, against its insureds Case Foundation Company; Skidmore, Owings & Merrill; Tishman Construction Corporation of Delaware; Jerry Wolman, Anne Wolman, Earl M. Foreman, Phyllis R. Foreman, J. Theodore Dailey, Maureen M. Dailey and American National Bank and Trust Company of Chicago, Trustee under its Trust No. 21631. *fn1 In its complaint, Hartford alleged that it issued a policy to the insureds; that Case, Skidmore and Tishman, claiming coverage under the policy, tendered to it the defense of a Federal suit that Jerry Wolman filed against them. Hartford prayed for a determination of the rights and obligations of the parties under the policy. The trial court ruled that Hartford did not have to defend the suit. The issue is whether this ruling was correct.

I.

On February 12, 1965, Jerry Wolman and his wife owned 85% of the land bound on the west, north and south by North Michigan Avenue, East Delaware and East Chestnut Streets in Chicago. *fn2 Desiring to develop what is now the John Hancock Center, they entered into an agreement with Skidmore, Owings & Merrill for architectural and engineering services. Wolman was an entrepreneur, a land developer who had a number of business ventures. For example, either alone or with others, he owned the Georgian Towers in Maryland, the Prudential Building and other properties in the District of Columbia, the Philadelphia Eagles and an indoor sports center in Philadelphia and taxicab companies in two major cities. Wolman's investment in the John Hancock project exceeded $5,000,000. The profits he anticipated from the venture were in excess of $20,000,000.

April 20, 1965, Wolman contracted with Tishman Construction Corporation of Delaware to build the 100-story combination office and residential John Hancock Center. The cost was not to exceed $63,000,000. John Hancock Mutual Life Insurance Company agreed to provide the financing because the building would add to its prestige and financing it was consistent with sound economic considerations. On May 3, 1965, at Wolman's expense, Hartford issued its liability policy No. 83 CA 50100 which insured, among others, Wolman, Skidmore, Tishman and all contractors and subcontractors who were to work on the building. Then on July 22, 1965, Tishman entered into a subcontract with Case Foundation Company, a California corporation by which Case agreed to construct 57 concrete caissons for part of the foundation of the 100-story building. Case was to provide labor, equipment and the necessary supervision for this and related work.

On February 11, 1970, Wolman filed a complaint in the United States District Court in Chicago in which he alleged that Case, Skidmore and Tishman breached their contracts and were negligent in connection with construction of the John Hancock Center. Case, Skidmore and Tishman tendered defense of the suit to Hartford. Hartford refused the tender but reserved its rights and filed the declaratory judgment suit in this case to which were attached as exhibits a copy of Hartford's policy and Wolman's complaint against Case, Skidmore and Tishman. Hartford prayed for a declaration that the damages alleged by Wolman were not within its policy No. 83 CA 50100 and that it was not obliged to appear, defend, indemnify or provide any monies, costs or expenses to Case, Skidmore or Tishman with respect to the Wolman suit. Answers were filed to Hartford's complaint. Thereafter, it made a motion for judgment on the pleadings. A short time later, Skidmore made a similar motion for partial judgment, one declaring that Hartford was bound to defend the Wolman suit "* * * unless it becomes clear, from further proceedings * * *, that the occurrences therein alleged are not potentially within the coverage of Hartford's policy No. 83 CA 50100."

Briefs were filed. After hearing the parties, the trial court denied Skidmore's motion, granted Hartford's and filed a Memorandum of Decision in which it found that the pleadings presented two issues. (1) Whether the Wolman complaint alleged property damage within Coverage D of Hartford's policy. (2) Whether the occurrences alleged in Wolman's complaint were subject to the provisions of Exclusion (j). The court analyzed Wolman's complaint and concluded that it did not allege damage to property, as that term was used in the coverage provisions of the policy. Wolman's complaint, the court held, alleged negligence and breaches by Case, Skidmore and Tishman which he claimed caused him to lose his investment in and the anticipated profits from the John Hancock Center together with investments in his other ventures. Even if Wolman had alleged damage to property, the court held, Exclusion (j), paragraphs iv(a) and (c) of Hartford's policy would have applied to all of the three defendants in Wolman's suit. Accordingly, the trial court entered a judgment declaring that Hartford's policy did not provide coverage for the damages claimed by Wolman and that Hartford was not obliged to appear, defend, provide costs or fees, indemnify or pay any judgment with respect to Wolman's suit.

II.

Case, Skidmore and Tishman, in separate briefs, make broad attacks on the trial court's declaratory judgment. *fn3 They contend that the trial court misconstrued the coverage of Hartford's policy. They insist that by the terms of its policy, Hartford was obligated to assume defense of the Wolman suit until it became clear that his complaint was definitely beyond the policy's coverage. They argue that the trial misconceived the function of a Federal court complaint. And as to Exclusion (j) of the policy, they say that its provisions did not apply to them because the exclusions were not applicable to all of the property they allegedly injured or damaged. Finally, Case, Skidmore and Tishman insist that it was error for the trial court to sustain Hartford's motion for judgment on the pleadings and rule as a matter of law that coverage was not provided them by Hartford's policy.

Hartford, on the other hand, contends that Coverage D of its policy provided insurance protection against property damage liability; that is, damages because of injury to or destruction of property, including loss of its use. Hartford makes the point that Wolman's complaint did not allege injury to or destruction of property; and that even if it did, that is, damage to the caissons which Case constructed, the provisions of Exclusion (j) of its policy would have precluded coverage. Hartford insists that Case, Skidmore and Tishman confuse liability with damages. Its policy, Hartford argues, did not cover every conceivable type of damage for which its insureds might become liable. And as to the construction of the policy, Hartford maintains that the pleadings did not present any question of fact. Therefore, Hartford concludes, the trial court ruled correctly when it sustained the motion for judgment on the pleadings and entered the declaratory judgment.

III.

• 1, 2 A motion for judgment on the pleadings tests the sufficiency of the pleadings: whether the plaintiff is entitled to the relief sought by his complaint or, alternatively, whether defendant, by his answer, has set up a defense which would entitle him to a hearing on the merits. (Carebuilt Corp. v. Horsting, 40 Ill. App.2d 280, 189 N.E.2d 364; Proesel v. Myers Publishing Co., 48 Ill. App.2d 402, 199 N.E.2d 73.) When considering a motion for judgment on the pleadings, the trial court must ascertain whether there is an issue of fact. If there is not, then the only question is which party is entitled to judgment. Baillon v. S.S. Kresge Co., 4 Ill. App.3d 82, 277 N.E.2d 719.

• 3, 4 In this case, the record containing motions for judgment on the pleadings, and rulings on them, requires examination of the declaratory judgment complaint, Hartford's policy, the Wolman complaint and the answers. This examination reveals pleadings that presented no questions of fact. The questions raised concerned construction of Hartford's liability insurance policy No. 83 CA 50100. Construction of an insurance policy presents only a question of law. (Coons v. Home Life Insurance Co., 368 Ill. 231, 13 N.E.2d 482; Cohen v. Northwestern National Life Insurance Co., 124 Ill. App.2d 15, 259 N.E.2d 865.) Therefore, we conclude that the trial court properly proceeded to construe Hartford's policy and determined which party was entitled to judgment: in favor of Case, Skidmore and Tishman because they were covered by Hartford's policy; or in favor of Hartford because its policy did not provide coverage and it was under no duty to defend the Wolman suit.

• 5, 6 Insurance policies are contracts. In order to give effect to the intent of the parties, policies should be construed as other contracts are construed. (Morton v. Travelers Indemnity Co. (1960), 171 Neb. 433, 106 N.W.2d 710.) Insurance policies should be construed as a whole, giving effect to every part, as far as it is possible. (Konrad v. Hartford Accident and Indemnity Co., 11 Ill. App.2d 503, 526, 137 N.E.2d 855; 22 I.L.P. Insurance § 145.) Where the language in a policy is clear and ...


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