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12/21/88 Defendant-Appellant and v. Underwriters Insurance

December 21, 1988

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION INTERNATIONAL AMPHITHEATRE COMPANY, PLAINTIFF-APPELLEE

v.

VANGUARD UNDERWRITERS INSURANCE COMPANY, DEFENDANT-APPELLANT AND CROSS-DEFENDANT AND APPELLANT AND COUNTERPLAINTIFF AND THIRD-PARTY PLAINTIFF-APPELLANT



(Al-Par, Inc., et al., Defendants; Denise Morales et al.,

Cross-Plaintiffs-Appellees; Rainbow Productions, Inc.,

Cross-Defendant; David Cox, Intervening Petitioner and

Counterdefendant-Appellee; W. Russell Hummel & Company,

Inc., Third-Party Defendant-Appellee)

532 N.E.2d 493, 177 Ill. App. 3d 555, 126 Ill. Dec. 808 1988.IL.1851

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant Vanguard Underwriters Insurance Company (Vanguard) appeals from the trial court's granting of the following three motions in a declaratory judgment action: (1) the motion for summary judgment of plaintiff, International Amphitheatre Company (Amphitheatre), on the issue of Vanguard's duty to defend the Amphitheatre in certain personal injury suits; (2) the motion for summary judgment of cross-plaintiffs Denise Morales (Morales), Hugo Novales and Martha Novales (Novales) on the issue of Vanguard's duty to defend cross-defendant Rainbow Productions (Rainbow) in the personal injury suits; and (3) the motion to dismiss Vanguard's counterclaim against counterdefendant David Cox (Cox) and Vanguard's third-party complaint against third-party defendant W. Russell Hummel & Company (Hummel).

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates the following. Vanguard, an insurer, issued a general liability policy, number GL 1041, to defendants Al-Par, Inc. (Al-Par), and Maryland Leisure Corporation (Maryland), as the named insureds, for the policy period from July 29, 1981, to July 29, 1982. The policy covers bodily injury and property damage liability. Pursuant to its general liability provisions, the policy provides coverage for "Social Gatherings & Meetings on premises not owned or operated by the insured." Further, regarding independent contractors, the policy states, "Operations . . . Excluding Security and Crowd Control" come within coverage. The policy also contains four endorsements regarding coverage.

Prior to December 29, 1981, Amphitheatre entered into an agreement to lease its premises in Chicago to Rainbow for a rock concert to be held on December 29, 1981. On December 29, 1981, Vanguard, through its managing agent, authorized Hummel to issue a certificate of insurance pursuant to policy GL 1041 to Talent Coordinators of America, Inc. (Talent), a copromoter and coproducer of the concert, naming Amphitheatre, Rainbow, and the rock musicians as additional insureds.

Vanguard contends that at the time of negotiations for the policy, it was anticipated that Al-Par and/or Maryland would be involved in the promotion of approximately 2,000 concerts during the first year of the policy. Vanguard asserts that whenever a new concert was scheduled by Al-Par or Maryland, a telephone call would be made from their offices to the office of the insurance agent, Hummel. Hummel would then inform Vanguard of the date of the concert and the entities which were to be named as additional insureds. Vanguard would issue a change endorsement to the policy, adding the additional insureds for that particular concert. The insurance agent would issue a certificate of insurance to the new additional insureds for the concert.

During the concert at the Amphitheatre on December 29, 1981, several persons in attendance allegedly were attacked and sexually abused. Four lawsuits were filed against the Amphitheatre and other defendants, alleging negligent and wilful and wanton conduct resulting in the plaintiffs' injuries. The tort plaintiffs include Morales, Novales, and other defendants/cross-appellees (tort plaintiffs) in the instant appeal. Several of the tort defendants tendered their defense in the personal injury suits to Vanguard. Vanguard undertook the defense of Al-Par, an officer of Al-Par, Maryland, Talent, and the musicians. Vanguard refused, however, to defend Amphitheatre and Rainbow.

Amphitheatre then filed a complaint for declaratory judgment, seeking a declaration that pursuant to the certificate of insurance issued by Vanguard, Amphitheatre was an additional insured under policy GL 1041 and the tort suits presented a potential liability for which Amphitheatre is covered by the Vanguard policy. The complaint for declaratory judgment also alleges that Amphitheatre had not been provided with a copy of the policy itself, but only with the certificate of insurance.

Amphitheatre filed a motion for summary judgment against Vanguard. The motion asserted, among other things, that policy endorsements numbers 3 and 4, on which Vanguard is relying to deny coverage, do not apply to Amphitheatre, since Amphitheatre was not furnished a copy of the policy.

Endorsement number 3 of the policy provides:

"IT IS HEREBY UNDERSTOOD AND AGREED THAT CO-PROMOTERS AND BUILDING OWNERS, MANAGERS, LESSORS AND LANDLORDS SHALL BE COVERED AS ADDITIONAL INSUREDS, UNDER THIS POLICY BUT ONLY WITH RESPECT TO THE SOLE NEGLIGENCE

ALL OTHER TERMS AND CONDITIONS REMAIN ...


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