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

August 13, 1987

LOUIS FAULKNER, D/B/A FAULKNER BUILDERS, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

UNITED STATES FIDELITY & GUARANTY COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

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.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

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 ...


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