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10/18/95 LANDMARK AMERICAN INSURANCE COMPANY v.

October 18, 1995

LANDMARK AMERICAN INSURANCE COMPANY, PLAINTIFF-COUNTERDEFENDANT-APPELLEE,
v.
COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-COUNTERPLAINTIFF-APPELLANT.



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

Released for Publication November 28, 1995.

The Honorable Justice Cerda delivered the opinion of the court. Rizzi and Tully, JJ., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court.

Defendant and counterplaintiff, Country Mutual Insurance Company, appeals from the entry of summary judgment in favor of plaintiff and counterdefendant, Landmark American Insurance Company. Defendant argues on appeal that plaintiff's insurance policy provided primary coverage for a complaint against plaintiff's insured.

Plaintiff, Landmark American Insurance Co., brought a complaint for declaratory judgment that alleged that Edward Hough was insured under a commercial trucker's policy issued by plaintiff. The policy covered Hough's truck. On May 3, 1989, Hough leased his truck to Illinois Bulk Carriers (IBC), and Hough was involved in a collision on that date with an auto driven by Marian Solomon. IBC was insured under a commercial trucker's policy issued by defendant Country Mutual Insurance Co. Solomon filed a lawsuit against Hough for personal injuries allegedly sustained in the accident. Plaintiff defended Hough. Hough tendered the defense in October 1991 to defendant on the basis that the Country Mutual policy afforded primary coverage for the claim. Defendant refused to undertake Hough's defense on the ground that its policy provided only excess coverage for the claim. Plaintiff sought a declaration that defendant's policy afforded primary coverage to Hough and that plaintiff's policy only afforded excess coverage to Hough.

Defendant filed a counterclaim for declaratory judgment alleging that plaintiff's policy provided primary coverage while defendant's policy provided excess coverage.

Hough was listed as the "Named Insured" on plaintiff's Landmark policy. Plaintiff's policy stated that throughout the policy the word "you" referred to the named insured. The additional insured endorsement of plaintiff's policy provided:

"It is understood and agreed the following is added as an Additional Insured but only as respects to the Named Insured's operations.

Illinois Bulk Carriers, Inc.

Advance premium: $150.00.

All other terms and conditions of this policy remain unchanged."

The "other insurance" provision of plaintiff's Landmark policy stated that:

"This Coverage Form's Liability Coverage is primary for any covered 'auto' while hired or borrowed by you and used exclusively in your business as a 'trucker' and pursuant to operating rights granted to you by a public authority. This Coverage Form's Liability Coverage is excess over any other collectible ...


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