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08/05/94 HOME INSURANCE COMPANY v. LIBERTY MUTUAL

August 5, 1994

HOME INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, A CORPORATION, AND TURNER CONSTRUCTION COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Richard L. Curry, Judge Presiding.

Rehearing Denied October 28, 1994. Petition for Leave to Appeal Denied February 1, 1995. As Modified on Denial of Rehearing October 28, 1994.

Egan, Rakowski, Giannis

The opinion of the court was delivered by: Egan

MODIFIED ON DENIAL OF REHEARING

PRESIDING JUSTICE EGAN delivered the opinion of the court: This is a dispute between two insurance carriers, the plaintiff Home Insurance Company (Home) and the defendant Liberty Mutual Insurance Company (Liberty). The dispute centers on the duty of the two carriers to defend a tort claim against their insured.

Liberty issued a liability policy to Turner Construction Company (Turner), the general contractor on a construction site located at 10 South LaSalle Street in Chicago. Turner was also an additional insured in a policy issued by Home to David Architectural Metals, a subcontractor of Turner. Charles Aderholt, an employee of another subcontractor, filed a suit against Turner for negligence and a violation of the Illinois Structural Work Act. (Ill. Rev. Stat. 1991, ch. 48, par. 59.) Home provided Turner with a defense in the Aderholt action pursuant to a reservation of rights and requested Liberty to contribute to the defense of Turner. Liberty refused. Home filed a complaint against Liberty seeking a declaration that Liberty's policy obligated it to contribute to the defense of Turner in the Aderholt action.

Both Liberty and Home moved for judgment on the pleadings. The trial Judge held that Home was the primary carrier "at least as it related to this claim, and Liberty is an excess [carrier]." He concluded therefore that Liberty was not required to contribute to the defense. In this appeal, Home admits that it has a duty to defend Turner, but it maintains that Liberty must pay a pro rata share of the defense cost.

Our Discussion necessarily begins with the parties' policies. The endorsement to the Home policy adding Turner provided as follows:

"It is agreed that:

1. The 'persons insured' provision is amended to include as an insured the person or organization named above, [Turner], but only with respect to liability arising out of (1) operations performed for [Turner] by the named insured at the location designated above or (2) acts or omissions of [Turner] in connection with his general supervision of such operations * * *.

3. Additional exclusions. This insurance shall not apply:

(b) To bodily injury or property damage arising out of any act or omission of [Turner] or any of his employees, other than general supervision of work performed for [Turner] by the named insured; * * *"

The Home policy also contains an "other insurance" clause which provides as follows:

"Other insurance. The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the Insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company's ...


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