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08/13/87 Louis Faulkner, D/B/A v. United States Fidelity &

August 13, 1987





511 N.E.2d 652, 157 Ill. App. 3d 590, 110 Ill. Dec. 475 1987.IL.1176

Date Reported: Original Opinion of May 12, 1987 at 157 Ill. App. 3d 590.


JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.


In his petition for rehearing and application for certificate of importance, the plaintiff asserts that this court overlooked the potentiality for coverage afforded by the CEIP. We note that with the exception of Illinois Farmers Insurance Co. v. Preston (1987), 153 Ill. App. 3d 644, 505 N.E.2d 1343, the authorities relied upon by plaintiff for this assertion were not argued or cited in either plaintiff's brief or reply brief. As these authorities were available to plaintiff at the time his briefs were filed, we refuse to consider then now. Moreover, this court's opinion in Preston would not alter the result we have reached here, because in Preston, as in the case before us, we emphasized that an insurer's duty to defend arises only if there are allegations set forth in the complaint that are in, or potentially within, coverage. (153 Ill. App. 3d 644, 649, 505 N.E.2d 1343.) As stated in the instant opinion, plaintiff's faulty workmanship was not within policy coverage.

Plaintiff's petition for rehearing appears to deal more with this court's treatment of the issue considered rather than with its ultimate decision on the merits of the appeal. (See Schlenz v. Castle (1985), 132 Ill. App. 3d 993, 1018, 477 N.E.2d 697.) It is the court's decision that is the subject of reconsideration on a petition for rehearing rather than the language or reasoning employed therein. (132 Ill. App. 3d 993, 1018, 477 N.E.2d 697.) Although plaintiff may not agree with the reasoning we used to determine defendant was not liable for coverage under the CEIP, the plaintiff's potentiality for coverage afforded by the entire policy was considered.

As we concluded in our opinion, plaintiff was denied coverage under exclusions (c) and (e) of section 4.7 of the exclusions portion of the CEIP. Additionally, exclusion 5 of the personal excess indemnity coverage endorsement of the policy also precluded coverage. Despite the fact that we did not discuss the personal excess indemnity coverage endorsement contained in the CEIP in reaching our decision that no coverage was provided by the CEIP, we did examine the policy and take that endorsement, as well as other provisions of the policy, into consideration in construing the policy. We are mindful of the general contract rule that an insurance contract should be viewed as a whole to determine the intention of the parties to the contract and the purpose they sought to accomplish. Standard Mutual Insurance Co. v. Sentry Insurance of Illinois, Inc. (1986), 146 Ill. App. 3d 905, 910, 497 N.E.2d 476.

Exclusion 5 of the personal excess indemnity coverage endorsement relates specifically to the business pursuits of an insured setting forth when the defendant is not legally obligated to indemnify plaintiff for losses incurred because of property damage. Exclusion 5 provides:

"This endorsement does not apply:

As respects Coverage A;

5. to any business pursuits or business property of an Insured unless insurance is provided therefor by an underlying policy described in Item 7 of the Schedule and then not for broader coverage, excepting limits of liability, than is provided by such insurance; . . .."

Item 7 of the policy's schedule of underlying insurance lists "Eligible Business Property Liability." The eligible business property is defined in the business property endorsement of the policy. That endorsement provides:


It is agreed that with respect to exclusion 5, for the purpose of this insurance, the underlying insurance described in Item 7 of the declarations applies only to the following properties:

305-307 1st Avenue. Forreston, IL 108 Oak Street, Forreston, IL"

The parties do not dispute that the damage which was the subject of the original counterclaim occurred at the Rock Falls Eagle Club, located at 321 West Second, Rock Falls, Illinois. Under the plain language of exclusion 5, cited above, the damages at the Eagle Club resulting from plaintiff's pursuit of his normal business i.e., construction, work were excepted from coverage. Where the provisions of an insurance policy are clear and unambiguous, as is the case here, it is the duty of the court to enforce them according to their plain meaning. (Uhwat v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 295, 303, 465 N.E.2d 964.) Accordingly, we adhere to our original opinion and deny plaintiff's petition for rehearing.

Alternatively, the plaintiff asks this court to issue a certificate of importance, pursuant to Supreme Court Rule 316 (87 Ill. 2d R. 316), based upon "the diametrically opposed opinions" in the instant case and in Trovillion v. United States Fidelity & Guaranty Co. (1985), 130 Ill. App. 3d 694, 474 N.E.2d 953. As we pointed out in our opinion above, the court in Trovillion determined that the insurer was obliged to defend because the plaintiff's complaint in that case alleged facts which could be potentially covered by the policy in question. The ultimate result we reach in the instant case is opposite from that reached in Trovillion because we find the allegations in the instant complaint sought damages strictly for economic losses resulting from plaintiff's poor workmanship. Clearly, such losses were excluded from coverage under the CEIP. Thus, the fact that we have reached an opposite Conclusion, based upon the allegations in the complaint before us, from that of the Trovillion court does not justify the issuance of a certificate of importance, and we therefore deny plaintiff's request.

Petition for rehearing denied.

Petition for certificate of importance denied.


Petition for rehearing denied.

Petition for certificate of importance denied.


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