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03/21/88 National Surety v. Swissler Plumbing

March 21, 1988

NATIONAL SURETY CORPORATION, PLAINTIFF-APPELLEE

v.

SWISSLER PLUMBING, INC., ET AL., DEFENDANTS-APPELLANTS (THE NORTHERN TRUST COMPANY, AS PLENARY GUARDIAN OF THE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Estate of Norman A. Petersen, a Disabled

Person, Plaintiff; Swissler Plumbing,

Inc., et al., Defendants)

521 N.E.2d 257, 167 Ill. App. 3d 608, 118 Ill. Dec. 189 1988.IL.389

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, the National Surety Corporation (National), filed a declaratory judgment action in the circuit court of Du Page County naming as defendants Swissler Plumbing, Inc., Steven K. Swissler, and the Northern Trust Company, as plenary guardian of the estate of Norman A. Petersen, and seeking a declaration of the parties' rights and liabilities under an excess liability insurance policy issued by National to Swissler Plumbing, Inc. Following the circuit court's granting of summary judgment in favor of plaintiff, defendants filed this appeal.

The issue presented in this appeal is whether the trial court erred in ruling, as a matter of law, that Steven K. Swissler was not covered by National's excess liability insurance policy.

On January 6, 1981, Norman A. Petersen filed a complaint seeking damages for personal injuries incurred in an automobile accident on December 25, 1980, and naming as defendants Steven K. Swissler and Swissler Plumbing, Inc. According to the complaint, Steven Swissler was the owner and operator of a 1979 Ford pickup truck which struck a vehicle driven by Petersen. The complaint further alleged that the same 1979 Ford pickup was owned and maintained by Swissler Plumbing, Inc., and that Steven Swissler was acting as an agent and employee of Swissler Plumbing, Inc., at the time of the accident.

During the course of the tort litigation, the trial court granted summary judgment in favor of Swissler Plumbing, Inc., which was not appealed. The case against the remaining defendant, Steven K. Swissler, proceeded to jury trial. On August 26, 1982, the jury returned a verdict in favor of Norman Petersen in the amount of $1,275,000.

Both defendants were defended during the tort litigation by United States Fidelity & Guaranty Company , pursuant to an insurance policy issued by USF&G to Swissler Plumbing, Inc. Following the judgment, USF&G paid to Northern Trust Company, as the plenary guardian of the estate of Norman Petersen, $500,000, which was the liability limit under the policy issued to Swissler Plumbing, Inc.

On July 15, 1982, prior to the final judgment in the tort litigation, National filed its declaratory judgment action naming Steven Swissler and Swissler Plumbing, Inc., as defendants. National sought a declaration that it was not liable under an excess liability policy that it had issued to Swissler Plumbing, Inc., because Steven Swissler was not an "insured" within the meaning of that policy. On December 14, 1982, subsequent to the jury verdict in the tort case, National amended its complaint to include the Northern Trust Company as a defendant. National later amended its amended complaint and raised the additional issue of whether USF&G owed a duty to National to defend under the primary policy so as not to prejudice National. That amendment, however, was dismissed. National then filed an amended amendment to its amended complaint in which it raised the issue of whether Steven Swissler was covered under the primary policy issued by USF&G. The trial court again dismissed the amended amendment to the amended complaint. National filed a notice of appeal from the second dismissal order, but never prosecuted the appeal.

In its motion for summary judgment, National raised two arguments in support of its non-liability under its excess liability policy issued to Swissler Plumbing, Inc. First, it argued that Steven Swissler was not an "insured" within the meaning of its excess liability policy. Second, it contended that it was not liable for coverage under its excess liability policy because Steven Swissler was not covered by the primary policy issued by USF&G. National submitted the discovery depositions of Allan N. Young, a former assistant claims manager with National, and Herbert A. Hausmann, a branch manager with National, which, in essence, provided their interpretations of certain terms of the two policies as well as the interrelationship of both policies. Additionally, National included in its memorandum in support of summary judgment an affidavit of Steven Swissler and excerpts from Jack Swissler's discovery deposition both of which stated that Steven Swissler, not Swissler Plumbing, Inc., owned the 1979 Ford pickup truck. Defendants submitted the affidavit and discovery deposition of John D. Ingram, a law professor, to rebut National's agents' opinions interpreting the policies.

The trial court, in granting summary judgment to National, disposed of the case based upon National's argument that Steven Swissler was not covered under USF&G's primary policy. As to the issue of whether Steven Swissler was an insured within the terms of the excess policy, the court found there was no issue because language in the excess policy provided that anyone who was insured under the primary policy would be insured under the excess policy. Consequently, the court concluded that National was entitled to challenge the ...


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